Wood v Adelaide Resource Recovery Pty Ltd
[2017] SASCFC 13
•20 February 2017
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
WOOD v ADELAIDE RESOURCE RECOVERY PTY LTD
[2017] SASCFC 13
Judgment of The Full Court
(The Honourable Justice Blue, The Honourable Justice Lovell and The Honourable Justice Hinton)
20 February 2017
ENVIRONMENT AND PLANNING - POLLUTION - WASTE DISPOSAL - REGULATION - LICENSING - CONDITIONS
ENVIRONMENT AND PLANNING - POLLUTION - WASTE DISPOSAL - OFFENCES - PARTICULAR OFFENCES
Appeal against acquittal.
The respondent was acquitted by a Judge of the Environment Resources and Development Court of two counts of contravening a condition of an environmental authorisation.
The respondent operated a waste or recycling depot at Wingfield pursuant to a 2013 environmental authorisation subject to conditions. Conditions required that it only receive, process or store waste in the categories Construction and Demolition Waste (Mixed) and Commercial and Industrial Waste (General) within the undercover picking station or storage shed. The respondent stored material in stockpiles outside those buildings.
The prosecution’s case at trial was that the material stored in the stockpiles was waste and the material the subject of count 1 was Construction and Demolition Waste (Mixed) and the material the subject of count 2 was Commercial and Industrial Waste (General).
The Judge concluded that the material had ceased to be waste because it had been subject to processing and was now a product being refuse derived fuel. The Judge concluded that in any event the meaning of the terms “Construction and Demolition Waste (Mixed)” and “Commercial and Industrial Waste (General)” in the authorisation was uncertain such that it could not be concluded that the material comprised either category of waste.
The complainant appeals against the acquittals, contending that the Judge erred on both issues.
Held by Blue J (Lovell and Hinton JJ agreeing):
1. Under the first limb of the definition of “waste” in the Act, waste is a purposive and relative concept. Material that was formerly waste may be converted from waste into a product. In many cases, it will be a question of fact and degree to determine the point at which waste has changed its character and become a product (at [44]-[46]).
2. On the evidence adduced at trial, the material in the stockpiles had not been converted into a product and remained waste (at [52]).
3. Clause 4 of the Environment Protection (Waste to Resources) Policy 2010 made by the Authority does not extend the meaning of waste for the purposes of the Act generally as opposed to the substantive provisions of the Policy itself (at [61] per Blue J and [103] per Hinton J).
4. If Clause 4 of the Policy had validly extended the definition of waste for the purposes of the Act, the material in question would not have fallen within the extended definition (at [62]-[64]).
5. The authorisation incorporated the Authority’s September 2009 Waste Guidelines (at [75]).
6. On the evidence adduced at trial, it was proved beyond reasonable doubt that the material in the stockpiles predominantly comprised C & D Waste. Count 1 was proved beyond reasonable doubt (at [89] and [105] per Hinton J).
7. On the evidence adduced at trial, it was not proved beyond reasonable doubt that the material in the stockpiles included C & I Waste. Count 2 was not proved beyond reasonable doubt (at [91]).
8. Appeal allowed. Acquittal on count 1 set aside and conviction on count 1 substituted. Matter admitted to the Environment Court for sentencing (at [93]).
Environment Protection Act 1993 (SA) s 3, s 27, s 36, s 40, s 45, s 128, sch 1, referred to.
ResourceCo Pty Ltd v Environment Protection Authority [2007] SAERDC 31, discussed.
City of Adelaide v Environment Protection Authority (2005) 139 LGERA 211, considered.
WOOD v ADELAIDE RESOURCE RECOVERY PTY LTD
[2017] SASCFC 13Full Court: Blue, Lovell and Hinton JJ
BLUE J: This is an appeal against acquittal.
The appellant, Andrew Wood, an officer of the Environment Protection Authority (the Authority), charged the respondent, Adelaide Resource Recovery Pty Ltd (ARR), on complaint in the Environment Resources and Development Court with two counts of contravening a condition of an environmental authorisation.[1]
[1] Environment Protection Act 1993 (SA) section 45(5).
The environmental authorisation was a licence granted in June 2013 by the Authority to ARR to conduct a waste or recycling depot (the Licence). The Licence was subject to conditions that ARR only receive, process or store waste in the categories Construction and Demolition Waste (Mixed) and Commercial and Industrial Waste (General) within the enclosed undercover picking station or storage shed. The material the subject of both counts was contained in stockpiles outside those buildings.
The respondent pleaded not guilty. There were two issues at trial. First, was it proved beyond reasonable doubt that the material in the stockpiles had been derived from Construction and Demolition Waste (Mixed) (count 1) and Commercial and Industrial Waste (General) (count 2)? Secondly, had the material the subject of each count ceased to be waste fuel?
A Judge of the Environment Court concluded that the material in the stockpiles ceased to be waste because it had been subjected to processing and was now a product being refuse derived fuel. The Judge concluded that in any event the meaning of the terms “Construction and Demolition Waste (Mixed)” and “Commercial and Industrial Waste (General)” in the Licence was uncertain such that it could not be concluded that the material in the stockpile comprised either category of waste. The Judge refused an application by the prosecution to amend count 1 to allege that the material comprised “Construction and Demolition Waste (Mixed) or Commercial and Industrial Waste (General)” on the ground of duplicity.
The complainant appeals against the acquittals, contending that the Judge erred on all issues.
Background
In the early part of the 2000 decade, Adelaide Brighton Cement Limited commenced using in its calciner an alternative fuel termed “refuse derived fuel”. Adelaide Brighton Cement and Resource Co (a competitor of ARR) formed a joint venture company called the Alternative Fuels Company (AFF). AFF processed high calorific waste containing a high proportion of timber and a lower proportion of plastic by finely shredding it into pieces with a diameter of less than 15 millimetres and sold it to Adelaide Brighton Cement as refuse derived fuel. AFF was the exclusive supplier of refuse derived fuel to Adelaide Brighton Cement until at least October 2013.
In 2004, ARR commenced operating a waste or recycling depot (the Depot) at 412-440 Hanson Road, Dry Creek (the Premises).
Section 36 of the Environment Protection Act 1993 (SA) (the Act) prohibits the undertaking of “prescribed activities of environmental significance” except as authorised by an environmental authorisation in the form of a licence under Part 6. Schedule 1 defines “prescribed activities of environmental significance” to include as item 3(3) the conduct of a waste or recycling depot, namely a depot for the reception, storage, treatment or disposal of waste (subject to prescribed exceptions) (a waste depot).[2] Section 40 empowers the Environment Protection Authority (the Authority) to grant an environmental authorisation (licence) and section 45 empowers the Authority to impose conditions of a licence.
[2] A “waste or recycling depot” referred to in item 3(3) is a phrase referring to a single, composite concept. Recycling falls within the expression “reception, storage, treatment or disposal of waste”: City of Adelaide v Environment Protection Authority [2005] SASC 221, (2005) 139 LGERA 211 at [22] per Debelle J (with whom Vanstone and Anderson JJ agreed). For economy of expression, I refer to the composite concept simply as a “waste depot”.
ARR initially operated the Depot under a licence authorising the Adelaide City Council to conduct a waste depot. Since 2007, ARR has held a series of licences (number 18944) in its own name to operate a waste depot.
In 2010, the Authority published a “Standard for the production and use of Refuse Derived Fuel” (the RDF Standard). The summary states that all proposals for production and use of refuse derived fuel need to be approved by the Authority and that the RDF Standard will be used to assess proposals. Clause 1.1 states that the RDF Standard applies to the production and use of refuse derived fuel to produce energy for an industrial process within a known market and applications need to identify the producer or supplier and the user. The RDF Standard does not contain any specifications but rather sets out a general methodology for applications and assessment.
In June 2013, the Authority issued to ARR the Licence to conduct a waste depot at the Premises up to 31 October 2017 subject to conditions. Condition 3 provides that ARR must “ONLY RECEIVE and/or DISPOSE of waste materials at the Premises that are identified on the ‘Schedule – Permitted Wastes’” attached to the Licence (the Schedule). The Schedule permits ARR to receive, but not to dispose of, the following types of waste:
1. Commercial and Industrial Waste (General) (C & I Waste);
2. Construction and Demolition Waste (Mixed) (C & D Waste);
3. Construction and Demolition Waste (Inert);
4. Inert Waste;
5. Intermediate Soil;
6. Waste Fill;
7. Low Level Contaminated Soil;
8. Low Level Contaminated Waste;
9. Green Waste;
10. Scrap Metal.
The Licence contains definitions of Green Waste, Intermediate Soil, Waste Fill and Low Level Contaminated Waste. It does not itself contain definitions of the remaining types of waste listed in the Schedule, including relevantly C & D Waste or C & I Waste.
The Licence requires that C & D Waste, C & I Waste (General), Low Level Contaminated Soil and Low Level Contaminated Waste be received and stored (and processed in the case of the first two) in the enclosed storage shed (or undercover picking station in the case of the first two).
Condition 9 provides:
WASTE MANAGEMENT
The Licensee must:
1.only receive, process or store waste at the Premises in areas that have been capped in accordance with the capping plan that has been approved by the Authority in accordance with Licence number 226 held by the Corporation of the City of Adelaide;
2.only receive, process or store waste within the areas defined as the Premises subject to the conditions of this licence;
3.only receive, process or store Construction and Demolition Waste (Mixed) within the enclosed undercover picking station or storage shed;
4.only receive, process and store Commercial and Industrial Waste (General) within the enclosed undercover picking station and storage shed unless it can be defined as inert; and
5.only store inert waste or process inert materials on uncapped areas if the Licensee has submitted a pre-loading plan to the Authority which has been approved in writing by the Authority.
Condition 18 provides:
UNDERCOVER STORAGE – LOW LEVEL CONTAMINATED WASTE
The Licensee must ensure that all Low Level Contaminated Waste is received and stored at the Premises within the enclosed undercover storage shed.
The Licence requires, by condition 10, that all Green Waste be processed within 21 days of receipt and removed within a further seven days.
The Authority issued Waste Guidelines in September 2009 (the Guidelines). The Guidelines include definitions of C & D Waste and C & I Waste.
The Premises include an undercover picking station, a storage shed and a series of outside stockpiles. Waste material arrives at the Premises in trucks. Inert material is processed to produce recycled aggregates and road base. The other solid material is received in the undercover picking station and loaded onto a conveyor belt. Fine material less than 20 millimetres in diameter (primarily gravel and soil) is separated out by a drum screen and diverted. The remaining material proceeds on a conveyor belt to a second separator which removes material less than 300 millimetres in diameter and diverts it to a water bath, which separates it into light material (primarily plastic, paper, cardboard and timber) and heavy material (such as masonry). The light material is deposited in stockpiles outside the shed. The remaining material (greater than 300 millimetres in diameter) proceeds to the picking line. On the picking line, high-grade plastic, steel, cardboard and other recyclables, oversized timbers and masonry are manually extracted. The residual material is deposited in stockpiles outside the shed.
The vast majority, being approximately 95 per cent, of solid material received by ARR is derived from construction and demolition materials.
On 13 September 2013, Martin Blunt and two fellow officers of the Authority inspected the Premises and took a series of photographs of the outside stockpiles. They later marked on an aerial photograph the location of the stockpiles. The stockpiles were:
1.a stockpile marked on the map in green towards the south-eastern side comprising predominantly raw green material, timber material and wood material (the green stockpile);
2.a stockpile marked on the map in grey towards the north-western side comprising predominantly metal material (the grey stockpile);
3.a stockpile marked on the map in orange in the middle towards the north comprising predominantly shredded green material and timber material (but not shredded sufficiently finely to meet a specification for refuse derived fuel) (the orange stockpile);
4.a stockpile marked on the map in yellow in the middle towards the south comprising predominantly timber material, MDF material, plastic material and paper and cardboard material (the yellow stockpile); and
5.a stockpile marked on the map in red in the middle comprising predominantly soil, construction timbers, green material and wood material (the red stockpile).
The red and yellow stockpiles abutted and physically comprised a single stockpile, which is the subject of the charges (the Stockpile).
On 9 October 2013, Martin Blunt and nine fellow officers of the Authority attended at the Premises and inspected and took a series of photographs of the Stockpile. They took three samples from three different areas of the Stockpile. These samples were later analysed and were comprised as follows:
Material ARR20 ARR21 ARR22 Wood 18.2% 62.8% 50% Fines 53.3% 11.3% 28.5% Masonry 6.5% 1.3% Plastic 2.2% 3.1% Metals 15.6% Green Waste 7.5% Other 7.4% 9.7% 17%
In December 2013, ARR commenced shredding and re-shredding material from the Stockpile to make samples to submit to Adelaide Brighton Cement for its consideration of its suitability for use as refuse derived fuel. ARR subsequently submitted four samples to Adelaide Brighton Cement for testing.
On 18 March 2014, Adelaide Brighton Cement wrote a letter to ARR referring to the results of the testing. It said that the moisture, plastic and ash content were in accordance with Adelaide Brighton Cement’s specification for refuse derived fuel and overall it was considered that the samples were quite suitable for use as refuse derived fuel.
On 21 May 2014, officers of the Authority interviewed Matthew Size, the General Manager of ARR responsible for general management but not for Operations. Mr Size was authorised to speak for and on behalf of ARR. They also interviewed Henryk Brzezinski, the Site Supervisor employed by ARR.
On 26 March 2015, Mr Wood filed the complaint in the Environment Court comprising two counts. Each count alleged a contravention of subsection 45(5) of the Act between 13 September and 9 October 2013 by contravening condition 9 of the Licence by storing waste outside the enclosed undercover picking station and storage shed. Count 1 alleged a contravention by storing C & D Waste and count 2 alleged a contravention by storing C & I Waste.
The trial
The trial commenced on 24 November 2015. The Authority called Mr Blunt and three fellow Authority officers to give evidence. It tendered the records of interview of Mr Size and Mr Brzezinski under section 128 of the Act. It called Mr Size and Mr Brzezinski to give evidence, but they declined to answer substantive questions on the grounds that they would incriminate themselves.
The statutory regime
Subsection 36(1) of the Act provides:
36—Requirement for licence
(1)A person must not undertake a prescribed activity of environmental significance except as authorised by an environmental authorisation in the form of a licence under this Part.
Penalty:
If the offender is a body corporate—$120,000.
If the offender is a natural person—Division 1 fine.
Subsection 40(1) provides:
40—Grant of environmental authorisations
(1)Subject to this Act, the Authority may grant an environmental authorisation to a person who has made due application for the authorisation and paid the authorisation fee prescribed or determined under the regulations.
Section 45 relevantly provides:
45—Conditions
(1)The Authority may impose conditions of an environmental authorisation with respect to such matters as are contemplated by this Act or as the Authority considers necessary or expedient for the purposes of this Act.
…
(5)The holder of an environmental authorisation must not contravene a condition of the authorisation.
Penalty:
If the offender is a body corporate—$120,000.
If the offender is a natural person—Division 1 fine.
Subsection 3(1) defines “waste” as follows:
(a)any discarded, rejected, abandoned, unwanted or surplus matter, whether or not intended for sale or for recycling, reprocessing, recovery or purification by a separate operation from that which produced the matter; or
(b)anything declared by regulation (after consultation under section 5A) or by an environment protection policy to be waste,
whether of value or not;
Section 27 empowers the Authority to make environment protection policies. It relevantly provides:
27—Nature and contents of environment protection policies
(1)Environment protection policies may be made in accordance with this Division for any purpose directed towards securing the objects of this Act.
(2)An environment protection policy may do one or more of the following according to its terms:
(a) set out matters to be taken into account by the Authority—
(i) in determining matters required to be determined by the Authority under Part 6 in relation to environmental authorisations or applications for environmental authorisations;
(ii) in determining matters required to be determined by the Authority under Part 6 in relation to applications for development authorisations referred to the Authority under the Development Act 1993;
(b)set out matters to be taken into account by the Authority or another administering agency in determining any specified matters required to be determined by the Authority or another administering agency for the purposes of this Act;
(c) set out requirements, standards, goals and guidelines;
(d)specify that certain requirements or standards (mandatory provisions) are to be enforceable under Division 2.
…
(4) The provisions of an environment protection policy may—
(a) be of general application or limited application;
(b)make different provisions according to the matters or circumstances to which they are expressed to apply;
(c)refer to or incorporate, wholly or partially and with or without modification, a standard or other document prepared or published by a body specified in the policy, as in force from time to time or as in force at a specified time;
(d)provide that a matter or thing is to be determined according to the discretion of the Authority or another administering agency.
In 2010, the Authority made the Environment Protection (Waste to Resources) Policy 2010 (the Policy). Clause 4 of the Policy modifies the definition of “waste” in the Act. It provides:
4—Certain material declared to be waste
For the purposes of the definition of waste in section 3(1) of the Act, waste or material resulting from the treatment of waste continues to be waste except insofar as—
(a) it constitutes a product that meets specifications or standards published from time to time or approved in writing by the Authority; or
(b) if no specification or standard published or approved in writing by the Authority applies to such waste or treatment of waste—it constitutes a product that is ready and intended for imminent use without the need for further treatment to prevent any environmental harm that might result from such use.
Clause 3(2) of the Policy defines “treatment” for the purposes of the Policy. It provides:
(2)For the purposes of this policy, a reference to the treatment of waste is a reference to the treatment of waste in some way—
(a) to recover material from the waste that may be reused or recycled; or
(b) to recover energy or other resources from the waste; or
(c) to prepare the waste for further treatment to recover material from the waste that may be reused or recycled or to recover energy or other resources from the waste,
and includes, but is not limited to, sorting, shredding, crushing, compacting or packaging the waste.
The reasons of the Judge
The Judge referred to ResourceCo Pty Ltd v Environment Protection Authority,[3] in which Judge Trenorden observed that the definition of waste in the Act recognises that at some point waste material might cease to be waste and change its character by being sold and hence wanted, or by being recycled, reprocessed, recovered or purified.
[3] [2007] SAERDC 31.
The Judge considered that the material received as waste by ARR ceased to be waste when it was processed in the picking shed and became wanted. The fact that it did not meet the specification or requirement of the prospective purchaser Adelaide Brighton Cement and therefore could not be sold without further processing did not entail that it had not yet changed its character. The Judge said:
At the time the material is e.g. left out in the street (by a person whom I will describe as the original owner) it is clearly waste. Arguably even when it arrives at the entrance to the defendant’s land, it could still be categorised as ‘discarded, rejected, abandoned, unwanted or surplus’. However, having passed through the gate and into the possession of the defendant, it is clearly ‘viewed’ in a different light by its new owner and, in my view, has changed in character.
The material is now clearly ‘wanted’ by the defendant. Thereafter, and as a resource now with real value to its new owner, the material is subjected to a series of processes whereby it is selected, separated, washed and vibrated. In no sense is the material, at the end of these processes, ‘useless’ or ‘destined for landfill’. On the contrary, by the end of these processes, in the defendant’s submission, not only is the material something other than waste, but it is also a material which satisfied an EPA Standard, which qualified it as Refuse Derived Fuel (‘RDF’).
It is true that without further processing, the material in the stockpiles did not meet the specification or requirements of Adelaide Brighton Cement, the anticipated purchaser. However, in my view, at the stage at which it was deposited onto the stockpiles, it was clearly not waste, but on the contrary, was arguably a material of value, namely, RDF.
The Judge rejected Mr Woods’ alternative contention that clause 4 of the Policy extended the definition of “waste” for the purposes of the Act and deemed the material in the Stockpile to be waste. The Judge held that, to the extent that clause 4 purports to extend the definition of “waste” for the purposes of the Act, it is ultra vires the policy-making power conferred on the Authority by section 27 and the second limb of the definition of waste in section 3 of the Act. The Judge held that in any event the material comprised a “product” within the meaning of clause 4 because it met the Standard and in any event it constituted a product ready and intended for imminent use.
The Judge held that the terms “Construction and Demolition Waste (Mixed)” and “Commercial and Industrial Waste (General)” are not defined in or for the purposes of the Licence and it is not permissible to have regard to the definition of those terms in the Guidelines. The Judge considered that, in the absence of a definition of those terms, they are too uncertain to justify a finding that the material in the Stockpile was either C & D Waste or C & I Waste.
The Judge refused an application by Mr Wood during trial to amend count 1 of the complaint to allege contravention by storing “Construction and Demolition Waste (Mixed) or Commercial and Industrial Waste (General)” instead of “Construction and Demolition Waste (Mixed)” on the ground that the count if amended would be bad for duplicity.
Had the material ceased to be waste?
First limb of the definition of waste
The first limb of the definition of “waste” is:
(a)any discarded, rejected, abandoned, unwanted or surplus matter, whether or not intended for sale or for recycling, reprocessing, recovery or purification by a separate operation from that which produced the matter; or
It is common ground that the material in the Stockpile was received by ARR as waste. The issue is whether it ceased to be waste by the time it was deposited in the Stockpile or more particularly between 13 September and 9 October 2013.
The Oxford English Dictionary defines the noun “waste” to have, inter alia, the following meaning:
III Waste matter, refuse.
11. a. Refuse matter; unserviceable material remaining over from any process of manufacture; the useless by-products of any industrial process; material or manufactured articles so damaged as to be useless or unsaleable.[4]
[4] Oxford English Dictionary, 2nd ed (1989) vol 19 page 958.
In ordinary parlance, waste is a purposive concept. It is a relative and not absolute concept. It is not an inherent characteristic of material that it comprises waste: it must be assessed from the perspective of a person whose purpose is to be considered at the relevant time. Waste is the antithesis of a product in ordinary parlance.
This dichotomy between waste and a product is reflected in the first limb of the definition of “waste” in the Act. If material that was waste has been used to make or has otherwise become a product, by a combination of what it says and does not say the definition treats the material as no longer being waste. Thus, the definition explicitly provides that the mere fact that the material is intended for sale, recycling, reprocessing, recovery or purification does not prevent it being waste if it falls within the first part of the limb. Conversely, the definition implicitly provides that if the material has actually been sold, recycled, reprocessed, recovered or purified such that it is now a product, it is no longer waste.
The conversion of unwanted waste into a product of value may be a complex process over an extended time period. In many cases, it will be a question of fact and degree to determine the point at which waste has changed its character and become a product. However, the mere fact that there may be questions of judgment involved in determining the precise point at which this occurs does not detract from the dichotomy evident in the definition between waste and a product. The definition makes plain that mere intention to convert waste into a product will not suffice: the enquiry is into objective fact.
In the present case, the material contained in the Stockpile had not in an affirmative sense been processed. It was the residue of the waste input into the picking station. Other components, including components which could themselves be sold in their existing state (such as metals or high grade plastics), had been removed from the stream and in a negative sense this might be described as processing. Essentially the material output from the picking station placed in the Stockpile still comprised waste from which each of the other components had been removed. If and when that material was shredded so that it complied with the specification for refuse derived fuel, it may potentially have comprised a product. Whether it would have comprised a product at that point would depend largely on economic demand for the material at that point. If there was no available market for the material, it could not be characterised as anything but waste which might in future become a product if a demand arose for it. On the other hand, if there was an available market and demand for the product, the mere fact that it was not to be sold and delivered to a customer immediately would not deprive it of characterisation as a product. These questions ultimately involve matters of fact and degree. However, it is not necessary to consider these questions because the material had not yet been processed to the point at which it might be considered to be a product.
The Judge considered that it was sufficient to render the material a product that it had been subject to a degree of processing, albeit not to the point at which it was usable or saleable, and because it was of value to ARR. The mere fact that the material had been subject to a degree of processing does not in itself convert that material into a product: it is necessary to make a holistic assessment. The mere fact that ARR considered that the material was of value to it is not sufficient to render it a product: it is necessary that objectively it has been converted into a valuable product.
The Judge said that the material qualified as Refuse Derived Fuel within the meaning of the Standard. However, the Standard does not contain specifications of quality, size or contamination. The Standard merely sets out processes for such matters to be assessed. The Standard proceeds on the explicit premise that a producer seeking authorisation needs to demonstrate that there is an immediate market for the proposed refuse derived fuel, identify a user and demonstrate that the proposed refuse derived fuel is suitable for use at the user’s facility.
Clause 1.2 of the Standard provides:
when … the producer is newly undertaking an activity to supply RDF to an existing user (or the producer wants to change the RDF specification):
-an application to the EPA as specified in this standard is required
-the producer must clearly identify the user and demonstrate the suitability of the RDF
-although the user already has approval, the user must demonstrate that the newly proposed RDF is suitable for use at their existing facility (either instead of or in addition to the currently RDF used).
Clause 3.2 of the Standard provides:
·There must be an immediate market for the RDF.
·There needs to be appropriate materials slow and stockpile management.
The production of RDF must not be speculative and an immediate market must exist for the RDF. This is demonstrated by the existence of a known customer or user with an available, suitable and beneficial use for the RDF on an ongoing basis.
On the evidence adduced at trial, as at September and October 2013 there was not an immediate market for the material in the Stockpile and it would not meet the specifications of Adelaide Brighton Cement. It still comprised waste within the meaning of the first limb of the definition.
Second limb of the definition of waste
Given the conclusion that the material in the Stockpile comprised waste within the meaning of the first limb of the definition, it is not necessary to consider the second limb. However, as the issues arising in relation to the second limb were fully argued, I address them briefly.
The second limb of the definition of “waste” is:
(b)anything declared by regulation (after consultation under section 5A) or by an environment protection policy to be waste
Clause 4 of the Policy provides:
For the purposes of the definition of waste in section 3(1) of the Act, waste or material resulting from the treatment of waste continues to be waste except insofar as—
(a) it constitutes a product that meets specifications or standards published from time to time or approved in writing by the Authority; or
(b) if no specification or standard published or approved in writing by the Authority applies to such waste or treatment of waste—it constitutes a product that is ready and intended for imminent use without the need for further treatment to prevent any environmental harm that might result from such use.
Valid operation of clause 4
The complainant contends that the Judge erred in holding that clause 4 of the policy was ultra vires the policy-making power in the Act.
The primary policy-making power is conferred by subsections 27(1) and (2) which empower the Authority to make policies for any purpose directed towards securing the objects of the Act, including setting out requirements, standards, goals and guidelines. The Policy sets out several substantive requirements, including clauses 10 to 19 which set out requirements relating to the collection, disposal, transport and management of waste.
The second limb of the definition of waste confers an ancillary power on the Authority to extend the definition of the waste in the Act for the purposes of a particular policy made by the Authority under the primary policy-making power conferred by section 27. There may be particular reasons why substantive requirements imposed by a policy call for a broader concept of waste than that embodied in the first limb of the definition in the Act.
The second limb of the definition of waste does not confer on the Authority a freestanding power to extend the definition of waste for the purposes of the Act generally including section 36. Moreover, if the second limb were construed as conferring such a power, there would be a real risk that, by making multiple policies which operate in different areas, inconsistencies would arise in the definition of waste for the purposes of the Act.
On the proper construction of clause 4 of the Policy, it only defines waste for the purpose of the substantive provisions of the Policy and in particular the substantive requirements imposed by clauses 10 to 19. Moreover, if clause 4 were construed as purporting to define waste for the purposes of the Act generally, it would be ultra vires and would be read down accordingly.
The Judge was correct in concluding that clause 4 of the Policy does not validly extend the definition of waste for the purposes of the Act generally and in particular for the purposes of section 36. However, for the following reasons the Judge was incorrect in concluding that, if clause 4 had validly extended that definition, the material in the Stockpile would not fall within the extended definition.
First limb of exception to clause 4
The first limb of the exception to clause 4 (paragraph (a)) did not exclude the material in the Stockpile from the extended definition of waste. As observed above, the Standard does not contain any specifications for refuse derived fuel. The Standard does not contain specifications or standards of the type contemplated by the first limb of the exception to clause 4. The Judge erred in concluding otherwise.
Second limb of exception to clause 4
The second limb of the exception to clause 4 (paragraph (b)) only applies to products that are ready and intended for imminent use and which do not need further treatment to prevent any environmental harm that might result from such use. These are two independent and cumulative requirements and not a single compendious requirement as the Judge held.
While it may be accepted that the material in the Stockpile does not need further treatment to prevent environmental harm, the material is not ready and intended for imminent use. It would first need to be shredded before it could be ready and intended for imminent use.
Was the material C & D or C & I Waste?
The Judge said that the terms “Construction and Demolition Waste (Mixed)” and “Commercial and Industrial Waste (General)” are not defined in the Licence, there is no reference in the Licence to the Guidelines and there was no extraneous material passing between the Authority and ARR to link the definitions in the Guidelines to the terms used in conditions 9.3 and 9.4.
The Judge said that only the most generalised of meanings could be ascribed to the terms in the Licence, which would not be meanings that could meaningfully advance the prosecution case.
The Judge said that the definitions in the Guidelines do not in any event permit a finding with any confidence, in the circumstances of the case, where the waste stream comprised by C & D Waste finishes and that of C & I Waste commences.
The Judge refused the complainant’s application to amend count 1 to allege contravention by storing “Construction and Demolition Waste (Mixed) or Commercial and Industrial Waste (General)” instead of “Construction and Demolition Waste (Mixed)” on the ground that the count if amended would be bad for duplicity.
On appeal, the complainant challenges each of these conclusions.
Incorporation of Guidelines into Licence
Condition 3 of the Licence provides:
PERMITTED WASTES – RECEIPT AND/OR DISPOSAL
The Licensee must:
1.ONLY RECEIVE and/or DISPOSE of waste materials at the Premises that are identified on the ‘Schedule – Permitted Wastes’ attachment to this Licence;
2.submit written application to the EPA to amend waste materials listed on the ‘Schedule’.
The Schedule contains two tables. The first table is entitled:
TABLE 1 – Permitted Waste Streams – EPA Waste Guidelines September 2009
Table 1 then lists 28 waste streams in alphabetical order, each of which is defined in the Guidelines. It shows that ARR is permitted to receive six of those waste streams, including C & D Waste and C & I Waste. These waste streams are generally not defined in the definition section at the beginning of the Licence.
The second table is entitled:
TABLE 2 – Permitted Waste Streams – Falling outside of EPA Waste Guidelines September 2009
Table 2 then lists 11 waste streams, of which ARR is permitted to receive four. These waste streams are generally defined (with the exception of scrap metal which has its ordinary English meaning) in the definition section at the beginning of the Licence.
The Guidelines are explicitly incorporated into table 1 of the Schedule to the Licence.
C & D Waste
The Guidelines define Construction and Demolition Waste (Mixed) as follows:
Construction and Demolition Waste (Mixed)
The solid component of waste stream arising from the construction, demolition or refurbishment of buildings or infrastructure which contains some foreign material (as set out below), but does not contain Municipal Solid Waste, Commercial and Industrial Waste (General), Listed Waste, Hazardous Waste or Radioactive Waste.
Notes:
C&D Waste is considered C&D Waste (Mixed) if it contains significant foreign materials from construction and demolition activities that would render the load of waste no longer inert (as a guide, 5−25% maximum by volume per load).
Foreign material includes green waste, plastics, electrical wiring, timber, paper, insulation, tins, packaging and other waste associated with construction or demolition of a building or other infrastructure. Foreign material must not be Municipal Solid Waste, Liquid, Listed, Hazardous or Radioactive Waste.
Where waste from construction and demolition sites contains predominantly foreign materials or domestic waste, such as waste from household clean-ups collected by commercial skip bins, this is defined as Commercial and Industrial Waste (General).
C & D Waste is differentiated from Construction and Demolition Waste (Inert), which is defined as follows:
Construction and Demolition Waste (Inert)
The solid component of waste stream arising from the construction, demolition or refurbishment of buildings or infrastructure but does not contain Municipal Solid Waste, Commercial and Industrial Waste (General), Listed Waste, Hazardous Waste or Radioactive Waste.
Notes:
C&D waste (Inert) should be such that the entire composition of the C&D materials is Inert Waste with no contamination by foreign material. As such it is acknowledged that – with the owner of no contamination – there may be some negligible components of foreign material contained in the waste (as a guide, 0−5% maximum by volume per load). C&D waste (Inert) includes bricks, concrete, tiles and ceramics, steel and inert soils.
Foreign material includes green waste, plastics, electrical wiring, timber, paper, insulation, tins, packaging and other waste associated with construction or demolition of a building or other infrastructure. Foreign material must not be Municipal Solid Waste, Liquid, Listed, Hazardous or Radioactive Waste.
The definition of Construction and Demolition Waste (Inert) is by definition a subcategory of Inert Waste, which is defined as follows:
Inert Waste
Solid waste that has no active chemical or biological properties. These wastes that do not undergo environmentally significant physical, chemical or biological transformation and have negligible potential to cause environmental harm.
C & D Waste is differentiated from C & I Waste, which is defined as follows:
Commercial and Industrial Waste (General)
The solid component of the waste stream arising from commercial, industrial, government, public or domestic premises (not collected as Municipal Solid Waste), but does not contain Listed Waste, Hazardous Waste or Radioactive Waste.
Mr Size said in his record of interview that 95% of the material coming in through the front part of the picking station was C & D Waste. He said that the material coming in through the front part of the picking station was primarily received from construction and demolition sites. Mr Blunt gave evidence that he saw construction timbers in the Stockpile. The photographs taken by Mr Blunt and his fellow EPA officers show obvious building and demolition materials in the Stockpile. The three samples taken from the Stockpile contain substantial proportions of wood. The evidence adduced at trial proved beyond reasonable doubt that the material contained in the Stockpile predominantly arose from the construction, demolition or refurbishment of buildings or infrastructure within the meaning of the definition of C & D Waste.
Mr Size said in his record of interview that ARR received two types of construction and demolition waste. One was inert, typically dirt and concrete, which was stockpiled outside and processed outside into a product, typically minus 20 millimetre aggregate, and it was then considered a product and stored in stockpiles ready for dispatch for sale. The other type was mixed C & D waste which was disposed of or, if not disposed of, deposited in the undercover facility and then processed. On the basis of this evidence, material comprising Construction and Demolition Waste (Inert) was dealt with by ARR otherwise than by being placed in the stockpiles. The evidence adduced at trial proved beyond reasonable doubt that the Stockpile did not contain Construction and Demolition Waste (Inert) or Inert Waste.
Mr Size said in his record of interview that a small proportion of the solid waste processed through the picking station was transported by industrial companies and was not derived from construction and demolition waste. The waste described by Mr Size is likely to have been C & I Waste. This waste is likely to have been deposited in the Stockpile. However, the mere fact that the Stockpile contained a minority of material other than C & D Waste does not entail that ARR did not breach the condition of the Licence prohibiting it from storing C & D Waste in the open. It was not necessary for the complainant to prove that any one item contained in the Stockpile comprised C & D Waste as opposed to C & I Waste or some other type of waste.
Green Waste is defined in the definition section of the Licence and the Guidelines to mean:
The vegetative portion of the waste stream arising from various sources including waste from domestic and commercial premises and municipal operations.
It is a condition of the Licence that Green Waste must be processed within 21 days of receipt and removed within a further seven days. If Green Waste had been placed by ARR in the Stockpile, ARR would have been in blatant breach of the Licence conditions. Taking into account the nature of the material described by Mr Blunt and shown in the photographs of the Stockpile, it is not a reasonable possibility that the material in the Stockpile can be accounted for as Green Waste.
Domestic Waste is defined in the Guidelines to mean:
the waste produced in the course of a domestic activity.
ARR is not authorised under the Licence to receive Domestic Waste. Taking into account the nature of the material described by Mr Blunt and shown in the photographs of the Stockpile, it is not a reasonable possibility that the material in the Stockpile can be accounted for as Domestic Waste.
Condition 18 of the Licence requires ARR to receive and store Low Level Contaminated Waste within the enclosed undercover storage shed. No suggestion was made by Mr Size that the Stockpile contains Low Level Contaminated Waste. On the evidence adduced at trial, it is not a reasonable possibility that the material in the Stockpile can be accounted for as Low Level Contaminated Waste.
ARR was authorised to receive soil being Waste Fill and Intermediate Soil. It is clear from Mr Blunt’s evidence, Mr Size’s record of interview and the photographs of the Stockpile that the material in the Stockpile cannot be accounted for as Waste Fill and Intermediate Soil.
The Judge ought to have found that it was proved beyond reasonable doubt that the Stockpile predominantly comprised C & D Waste and that count 1 was proved beyond reasonable doubt.
Given this conclusion, it is unnecessary to consider the complainant’s contention that the Judge erred in refusing his application to amend count 1.
C & I Waste
Mr Size in his record of interview was relatively vague about the receipt and disposition of C & I Waste. Mr Blunt and the other Authority officers who attended at the Premises and were called as witnesses did not give evidence from which it could be concluded beyond reasonable doubt that C & I Waste is contained within the Stockpile. While the photographs show material which is probably C & I Waste, it cannot be concluded beyond reasonable doubt that that material is C & I Waste.
The complainant failed to prove count 2 beyond reasonable doubt.
Conclusion
I would allow the appeal. I would set aside the acquittal of ARR on count 1 and substitute a conviction on count 1. I would remit the matter to the Environment Court for sentencing (including dealing with costs).
LOVELL J: I agree with Blue J.
HINTON J: I have had the benefit of reading the judgment of Blue J for which I am grateful.
I agree with Blue J for the reasons he gives that the material in the stockpile was waste within the meaning of the first limb of the definition of waste contained in s 3(1) of the Environment Protection Act 1993 (SA) (EPA).
I turn to the question of whether the definition of waste as contained in s 3(1) EPA is expanded by the Environment Protection (Waste to Resources) Policy 2010 (SA) (the Policy). The definition of waste in s 3(1) EPA is as follows:
(1) In this Act, unless the contrary intention appears –
…
waste means –
(a)any discarded, rejected, abandoned, unwanted or surplus matter, whether or not intended for sale or for recycling, reprocessing, recovery or purification by a separate operation from that which produced the matter; or
(b)anything declared by regulation (after consultation under section 5A) or by an environment protection policy to be waste,
whether of value or not.
On a literal reading of the definition matter will be waste for the purposes of the EPA if it answers the description contained in paragraph (a), or, is declared by regulation (after consultation under section 5A) to be waste, or, is declared by an environment protection policy to be waste. If paragraph (b) were construed as conferring a power limited only by the scope and purpose of the EPA it could not be doubted that such power could be exercised to expand or contract the meaning of waste contained in paragraph (a). That could have far reaching consequences for the application of the EPA. It would be unusual for the Parliament to delegate such power save in express terms. For the reasons that follow I do not think that paragraph (b) confers such power.
The first of the two methods of declaring anything to be waste as contained in paragraph (b) requires the making of a regulation. Paragraph (b), however, does not identify who may make such regulation nor purport to confer power on any office or person. Section 140 EPA confers power on the Governor to “make such regulations as are contemplated by, or as are necessary or expedient for the purposes of” the EPA. In my view the power to make the declaration contemplated by the first method referred to in paragraph (b) is to be found in s 140 EPA. Paragraph (b) conditions the exercise of that power on compliance with s 5A EPA. Section 5A EPA, like the first method subject of paragraph (b) assumes the existence of a regulation making power provided for somewhere else. If this analysis is correct, the ambit of a declaration made by regulation for the purposes of paragraph (b) is constrained by the limits on the power to make regulations and the purpose of regulations. Further, it takes its character from the nature of the power to make regulations. By that I mean it is intended to supplement the operation of the Act. That suggests that the first method contained in paragraph (b) is not intended to function as an alternative to the definition contained in paragraph (a) but as permitting an expansion of the definition by declaring a thing to be waste for the purposes of the regulation made.
As to the second method, in referring to the definition of waste as meaning anything declared “by an environment protection policy,” paragraph (b) must be construed as referring to an environment protection policy within the meaning of s 3(1) EPA. The definition of an environment protection policy contained in s 3(1) EPA identifies such policy as one made under Part 5 EPA. A policy made under Part 5 EPA is a policy made in the exercise of the power contained in that Part. It follows that any declaration of a thing as being waste within the meaning of paragraph (b) can only be made for the purposes of an environment protection policy as set out in s 27 EPA. Whilst those purposes are broadly framed – an environment protection policy may be made in accordance with Part 5 Division 1 EPA for any purpose directed towards securing the objects of the EPA – it remains the case that the power contained in paragraph (b) is ancillary to and bounded by the exercise of the power contained in s 27 EPA. In my view s 27 EPA is broad enough to include the declaration of something as constituting waste for the purposes of an environment protection policy.
If this analysis is correct, the EPA will, subject to any contrary indication, pick up and apply in its operation any definition of waste contained in a regulation made within the regulation making power, and, any definition of waste made within the power conferred by s 27. The disjunctive ‘or’ signifies that the applicable definition for the purposes of the EPA will depend upon the particular provision of the EPA invoked and what definition that provision picks up.
Accordingly, I agree with Blue J that paragraph (b) of the definition of waste in s 3(1) EPA is not a power to, in effect, amend the definition of waste generally. That said, bearing in mind the interaction of an environment protection policy with the EPA, for example, as a consequence of s 27(2)(c) and (d) EPA, and the potential application of a policy as a licence condition, a definition of waste contained in an environment protection policy different to that contained in paragraph (a) may form an element of an offence committed contrary to ss 36(1) and 45(5) EPA. That is not this case. Nothing in either the Policy or the relevant authorisation indicates that the Policy is to apply to, or is incorporated in, the authorisation and, even if there was such indication, it formed no part of the prosecution case at trial.
Accepting that paragraph (b) does not vest power to define waste for the purposes of the EPA generally, I would read clause 4 of the Policy down to apply only to the Policy.
In the alternative, on the assumption that clause 4 of the Policy operates to expand the definition of waste contained in s 3(1) EPA generally, the Standard for the Production and Use of Refuse Derived Fuel published under clause 4(a) is, for the reasons given by Blue J, of no assistance to the respondent.
I agree with Blue J for the reasons he gives that the guidelines were incorporated as a licence condition. I also agree that the evidence established beyond reasonable doubt that the stockpiles contained Construction and Demolition Waste (mixed) but that it was not open to the judge to be satisfied that the stockpiles contained Commercial and Industrial waste. As to the immediate last conclusion, I bear in mind that the definition of Construction and Demolition Waste (Mixed) contemplates that such waste will contain a proportion of foreign material. The photographs tendered in evidence show the stockpiles to contain foreign material – for example, chair back, two compact discs, video tape, DVD, shoes, coat hanger, the remnants of a plastic laundry basket and an x-ray film; see also, the content of the waste assessment sheets. It is true that such material could also answer the description of Commercial and Industrial Waste (General) but there is no basis in the evidence to separate that waste out from the Construction and Demolition Waste (Mixed), bearing in mind that the latter includes a proportion of foreign material and there is nothing that allows the Court to determine whether the permissible proportion of foreign material has been exceeded. The evidence as to the source of waste received by the respondent does not permit one to conclude beyond reasonable doubt that Commercial and Industrial Waste has been partially processed along with Construction and Demolition Waste and stored in the stockpiles as opposed to Construction and Demolition Waste containing foreign material received, processed in part, and stored in the stockpiles. Mr Blunt gave evidence that such material derived from skip bins from household clean-ups, but that evidence was no more than surmise. As he indicated earlier in his evidence, he could not identify from whom the respondent received waste. The presence of skip bins on the respondent’s site carries the matter no further. It is not a necessary inference that those bins were used exclusively for non-Construction and Demolition Waste (General) that found its way into the stockpiles. Lastly, Mr Size’s opinion that 95% of the waste coming “through the front part of the shed” was Construction and Demolition waste does not amount to evidence that the remaining 5% was Commercial and Industrial waste that did not constitute foreign material received during the period subject of count two.
Accordingly, I agree that the Judge was wrong to find the respondent not guilty of count one, but right to find the respondent not guilty of count two.
For the reasons given above, I join in the orders proposed by Blue J.
3
1
1