Weston Aluminium Pty Ltd v Environment Protection Authority [2022] NSWCA 236

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Weston Aluminium Pty Ltd v Environment Protection Authority [2022] NSWCA 236 Hearing dates: 2 November 2022 Date of orders: 17 November 2022 Decision date: 17 November 2022 Before: Ward P at [1]; Basten AJA at [2]; Preston CJ of LEC at [42]. Decision: (1) Allow the appeal and set aside the orders made in the Land and Environment Court on 17 November 2021, entered on 18 November 2021. (2) In place of those orders: (a) Declare that Weston Aluminium Pty Ltd is exempt from the requirement to pay contributions under s 88 of the Protection of the Environment Operations Act 1997 (NSW) in respect of the scheduled activities undertaken at its Kurri Kurri premises. (b) Order that the Environment Protection Authority pay Weston Aluminium's costs of the trial. (3) Order that the respondent Authority pay the appellant's costs in this Court. Catchwords: ENVIRONMENT AND PLANNING – waste disposal – licensing of premises – scheduled activity – waste disposal (thermal processing) – exemption from obligation to pay contribution – whether appellant is occupier of scheduled waste disposal facility – licence requirement arises because facility used for treatment and processing – distinction between treatment and processing and disposal – disposal does not include treatment leading to destruction – Protection of the Environment Operations Act 1997 (NSW), s 88 – Protection of the Environment Operations (Waste) Regulation 2014 (NSW), cl 20(3) STATUTORY INTERPRETATION – definitions – "waste disposal" – term not defined in statute – where term found in heading to clause – heading as extrinsic material – meaning to be determined by reference to statutory context – Dictionary meanings unable to determine statutory meaning Legislation Cited: Interpretation Act 1987 (NSW), s 35 Protection of the Environment Operations Act 1997 (NSW), ss 3, 5; Ch 3, ss 48, 88; Sch 1, Pt 1, cll 1, 26, 34, 39, 42, 40, 50; Pt 3, Divs 1, 2; Sch 2, cl 5 Protection of the Environment Operations (Waste) Regulation 2014 (NSW), cll 3, 19, 20, 26 Cases Cited: Environment Protection Authority v Grafil Pty Ltd (2019) 238 LGERA 147; [2019] NSWCCA 174 Category: Principal judgment Parties: Weston Aluminium Pty Ltd (Appellant) Environment Protection Authority (Respondent) Representation: Counsel: B Walker SC / S Berveling (Appellant) Z Heger / T Poisel (Respondent)