Land and Environment Court New South Wales Medium Neutral Citation: Calleija v Environment Protection Authority [2023] NSWLEC 1291 Hearing dates: Conciliation conference on 14 June 2023 Date of orders: 14 June 2023 Decision date: 14 June 2023 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders: (1) The appeal is allowed. (2) In accordance with section 110 of the Protection of the Environment Operations Act 1997 and section 39 of the Land and Environment Court Act 1979, the Court varies from 14 June 2023, directions 2 to 5 of the Supplementary Prevention Notice issued to the applicant under section 96A of the Protection of the Environment Operations Act 1997, in accordance with Schedule 1 of the Orders. Catchwords: APPEAL – variation of a prevention notice – conciliation conference – agreement between the parties – orders Legislation Cited: Land and Environment Court Act 1979, ss 34, 39 Protection of the Environment Operations Act 1997, ss 96A, 110, 292, 319A Category: Principal judgment Parties: Michael Joseph Calleija (Applicant) Environment Protection Authority (Respondent) Representation: Counsel: R Coffey (Applicant) M McAuliffe (Respondent) Solicitors: Pikes & Verekers Lawyers (Applicant) Environment Protection Authority (Respondent) File Number(s): 2022/362682 Publication restriction: Nil Judgment Introduction 1. Budget Waste Recycling (Budget) is the holder of an Environmental Protection Licence No. 20645 (the EPL) in respect to the Lot 1 in Deposited Plan 509194, known as 311 Doonside Road, Arndell Park NSW 2148 (site). 2. The applicant is the sole director of Budget which operates a resource recovery and waste storage facility on premises at the site. The premises comprises part of the site, being the hatched area shown in the map at condition A2.2 of the EPL (the Premises) extracted below in Figure 1. Figure 1 1. Condition L2.1 of the EPL permits the following types of waste to be stored and recovered: * paper, plastics, metal, timber and glass; * excavated natural material; * virgin excavated natural material; and * building and demolition waste. 1. Condition L2.2 of the EPL provides that authorised the amount of waste permitted on the premises cannot exceed 5,000 tonnes at any one time. 2. Condition L2.3 of the EPL provides that no stockpile on the premises may exceed a height of 5 metres at any time. The issuing of the Notice 1. On 13 May 2022, the EPA issued a Draft Prevention Notice to Budget Waste Recycling. 2. On 25 May 2022, the EPA issued Prevention Notice No. 3502561 to Budget Waste Recycling (Initial Prevention Notice). 3. The Initial Prevention Notice required, in summary form: "[Direction 1] To immediately cease receipt of all waste. [Direction 2] Engage a suitably qualified registered surveyor to undertake a volumetric and topographical survey. [Direction 3] Remove any waste over 5,000 tonnes within one week of the survey results. [Direction 4] Ensure adequate stockpile distances on the Premises. [Direction 5] By 15 June 2022, install a physical barrier to ensure waste is stored in the "hatched area" as indicated in condition A2.2 of the Licence. [Direction 6] By 15 June 2022, install permanent stockpile height markers. [Direction 7] By 15 June 2022 submit a report to the EPA demonstrating compliance with directions 1 to 4 of the PN." 1. By operation of s 319A of the Protection of the Environment Operations Act 1997 (POEO Act), the Initial Prevention Notice continues to have effect. 2. On 10 June 2022, Budget Waste Recycling appealed the Initial Prevention Notice to the Court. 3. On 31 October 2022, those proceedings were discontinued. 4. On 4 November 2022, the EPA issued a draft Supplementary Prevention Notice to the applicant. 5. On 15 November 2022, the applicant, through his lawyer, made a submission to the EPA in respect of the draft Supplementary Prevention Notice. 6. On 18 November 2022, the EPA issued a Supplementary Prevention Notice to the applicant. 7. On 25 November 2022, the Supplementary Prevention Notice dated 18 November 2022 was revoked. 8. On 25 November 2022, the Notice (Notice) was issued by the EPA. 9. The Notice required: "[Direction 1] To immediately cease receipt of all waste until the Respondent is satisfied you have demonstrated compliance with Directions 2-5 of the Notice and approves in writing that the activity can resume. [Direction 2] By 5pm on 29 November 2022, [the Applicant] must: (a) install a sign at the front gates, large and clear enough to be visible from 30 meters away, stating that Premises is not accepting waste pursuant to a direction given under section 96A of the POEO Act; (b) send a written notification to all clients who have used the services at the [location] in the previous year, stating that the Premises is unable to receive waste until Direction 1 of this Notice is lifted by the [Respondent], pursuant to a direction given under section 96A of the POEO Act, and that under section 143 of the POEO Act the owner of the waste and transporter are each guilty of an offence when waste is transported to a place that cannot lawfully be used as a waste facility; (c) provide evidence in writing to the EPA, by way of (but not limited to) photographs, copies of letters and receipts for notifications, to demonstrate compliance with Direction 2(a)-(c). [Direction 3] By 5pm on 7 December 2022, [the Applicant] must engage a suitably qualified independent person to complete the following: (a) conduct an inspection across the entire Premises to identify where waste material has been received and has either been land applied, processed, or stockpiled at the Premises; and (b) classify each type of waste material that has been received at the Premises and either been land applied, processed, or stockpiled in accordance with the Waste Classification Guidelines, Part 1: classifying waste, EPA 2014 or whether the material meets a general resource recovery orders; and (c) provide a report including the methodology and outcomes of the inspection and waste classification process, to the EPA in writing immediately after receiving the report from the suitably qualified and independent person. [Direction 4] By 5pm on 21 December 2022, [the Applicant] must: (a) remove waste from the premises until the amount the of waste on site below the authorized amount, as specified in Licence Condition 2.2. [sic] (b) ensure adequate stockpile separation distances of waste stockpiles on the premises; and (c) undertake a volumetric survey (the survey) of the Premises and collect bulk density soil samples reflective of the stockpile material, to confirm the amount of waste remaining onsite is below the authority amount, as specified in Licence Condition L2.2. The Survey must: (i) be completed by an independent, suitably qualified, and required surveyor, as defined in clause 7 of the [Waste Regulation]; and (ii) be conducted in accordance with sections 5.5 – 5.7 of the Waste Levy Guidelines 2018; and (iii) include any waste (processed or not) both inside and outside any building on the Premises; and (iv) provide evidence of compliance with Conditions A2.1, L2.2, L2.3 and O5.2 of the Licence; (v) provide the survey and bulk density soil testing results, including the Survey methodology, to the EPA in writing immediately after receiving the survey results. [Direction 5] By 5pm on 22 December 2022, [the Applicant] must: (a) ensure waste is only stored within the Premises as demarcated by the hatched area on the site map in Condition A2.2 of the Licence; (b) install permanent height markers, and train employees on the use of these, so the markers can be accurately measured by visual comparison to the stockpile height from ground level and are positioned in such a way that it is possible to determine the height of the markers by staff working within the processing and storage areas of the yard; and (c) submit a report to the EPA demonstrating compliance with Directions 1-5 of this notice. [Direction 6] [The Applicant] must provide the information and documents requirement by this notice electronically to info@epa.nsw.gov.au (Attn: [EPA officer name])." 1. The applicant, in his capacity as a director of Budget on 1 December 2022, commenced this appeal proceeding under s 96A(1) of the POEO Act against the Notice issued by the EPA. 2. Pursuant to s 39 of the LEC Act, the Court has the functions and discretions of the EPA as consent authority to determine the appeal noting that by operation of s 292 of the POEO Act a decision of the Court is "final and binding" on the parties. 3. In an effort to resolve the matter the Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 14 June 2023. I presided over the conciliation conference. During the conciliation, the parties agreed that all contentions raised in the Statement of Facts and Contentions filed on 17 February 2023 (SOFAC) are resolved by a variation to the Notice. 4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the decision is one that the Court could have made in the proper exercise of its functions. The relevant jurisdictional requirements to enable the Court to make the orders are detailed in the written submission filed with the document outlining the parties' agreement. The decision involves the Court exercising the functions under s 110 of the POEO Act and s 39 of the LEC Act to make the following variation to the Notice: "1. Pursuant to s 99(1) and s 110 of the Protection of the Environment Operations Act 1997, the following variations to the Supplementary Prevention Notice are to commence from 14 June 2023. (a) Direction 2 is varied to delete the direction. (b) Direction 3 is varied by deleting "by 5:00pm 7 December 2022" and inserting "by 5pm on 19 June 2023". (c) Direction 4 is varied by: (i) deleting "by 5:00pm 21 December 2022" and inserting "by 5pm on 19 June 2023". (ii) deleting subparagraph (a). (d) Direction 5 is varied by: (i) deleting "by 5:00pm 22 December 2022" and inserting "by 5pm on 19 June 2023". (ii) deleting subparagraph (a). (iii) amend subparagraph (c) by deleting "Directions 1-5" and inserting "Directions 2-5"." 1. As I am satisfied on the evidence before me that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act, I now dispose of the proceedings in accordance with the parties' decision, noting that within two (2) business days of compliance with the Supplementary Prevention Notice, the EPA will provide a letter to the applicant contemplated by Direction 1 of the Supplementary Prevention Notice. 2. Accordingly, the Court orders: 1. The appeal is allowed. 2. In accordance with section 110 of the Protection of the Environment Operations Act 1997 and section 39 of the Land and Environment Court Act 1979, the Court varies from 14 June 2023, directions 2 to 5 of the Supplementary Prevention Notice issued to the applicant under section 96A of the Protection of the Environment Operations Act 1997, in accordance with Schedule 1 of the Orders. ………………….. S Dixon Senior Commissioner of the Court SCHEDULE 1 (87923, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 July 2023