Land and Environment Court New South Wales Medium Neutral Citation: Aussie Skips Recycling Pty Ltd v Environment Protection Authority [2020] NSWLEC 1094 Hearing dates: Conciliation conference on 29 November 2019; 7 February 2020 Date of orders: 04 March 2020 Decision date: 04 March 2020 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders that: (1) The appeal is upheld. (2) Licence Application No. 21256 dated 7 February 2019 for an environmental protection licence to carry out waste storage activities located at Lot 15 DP 1133214, also known as 13 Bellfrog Street, Greenacre, NSW, 2190, is approved pursuant to s 55 of the Protection of the Environment Operations Act 1997 on the conditions as set out in Annexure "A". Catchwords: ENVIRONMENTAL PROTECTION LICENCE – waste storage activities – conciliation conference – agreement between the parties – orders Legislation Cited: Land and Environment Court Act 1979 Protection of the Environment Operations Act 1997 Strathfield Local Environmental Plan 2012 Strathfield Planning Scheme Ordinance Category: Principal judgment Parties: Aussie Skips Recycling Pty Ltd (Applicant) Environment Protection Authority (Respondent) Representation: Counsel: C Ireland (Applicant) F Berglund (Respondent) Solicitors: Minter Ellison (Applicant) NSW Environment Protection Authority (Respondent) File Number(s): 2019/232590 Publication restriction: No Judgment 1. COMMISSIONER: This appeal relates to the New South Wales Environment Protection Authority's (EPA) decision, pursuant to s 55(1) of the Protection of the Environment Operations Act 1997 (POEO Act) to refuse the applicant's Licence Application No. 21256 dated 7 February 2019 (Licence Application), for an environment protection licence to carry out waste storage activities located at Lot 15 DP1133214, also known as 13 Bellfrog Street, Greenacre, NSW, 2190 (the Site). 2. The appeal is brought pursuant to s 287 of the POEO Act. The appeal is allocated to Class 1 of the Court's jurisdiction pursuant to s 17(a) of the Land and Environment Court Act 1979 (LEC Act). By operation of s 39 of the LEC Act, in hearing and disposing of the appeal, the Court is conferred with all of the functions and discretions which the EPA had in respect of the matter the subject of the appeal. 3. An application for an environment protection licence is to be determined in accordance with Chapter 3 of the POEO Act. Background 1. The site is zoned IN1 General Industrial under the Strathfield Local Environmental Plan 2012 (LEP 2012). Although predominantly covered with concrete hardstand, the site also contains a workshop (including amenities), large storage shed, on-site detention system, and recycled water system, car park, and fencing and irrigation system. 2. Since about October 2018, the Applicant has occupied the Site. Before that, the Site was operated by Dunmain Pty Ltd, a civil construction company for a waste spoil handling facility. 3. On 9 October 2019, the Applicant entered into a lease with the registered proprietor of the Site, Tinnock Pty Ltd. 4. During the period 21 February 1969 – 28 March 2013, Strathfield Planning Scheme Ordinance (Ordinance) applied to the Site and was in force. At all material times up to 28 March 2013, the Site was zoned "Industrial" under the Ordinance. 5. On 19 February 2013, Strathfield Municipal Council granted development consent DA 2012/175 in relation to the Site for "Construction of an industrial warehouse building with an associated workshop and use as a materials handling yard", subject to conditions (Development Consent). 6. The Development Consent was granted under the Ordinance. The Statement of Environmental Effects prepared by Borg Architects and incorporated into the Development Consent (SEE) refers extensively to the Strathfield Local Environmental Plan 2003 (LEP 2003), an instrument which never came into force. On 29 March 2013, the LEP 2012 commenced. The LEP 2012 repealed the Ordinance. Actions of the Parties 1. On 14 February 2019, the Applicant submitted the Licence Application. The Licence Application was submitted with a number of supporting documents, including: 1. a cover letter from the Applicant to the Respondent regarding its Licence Application; 2. a draft plan of management for the Site; 3. a draft pollution incident response management plan with accompanying procedure plan; 4. the Consent; 5. stormwater drainage plans applicable to the Site; 6. stamped plans for the Site which accompanied the Consent; and 7. a letter from the Applicant in relation to its status as a 'fit and proper person' for the purposes of the POEO Act. 1. On 25 March 2019, the Respondent issued a notice to the Applicant to supply further information pursuant to s 60 of the POEO Act in relation to the Licence Application (Notice to Supply). In the Notice to Supply, the Respondent states: "C. The Strathfield Local Environmental Plan 2012 defines warehouse or distribution centre as: A building or place used mainly or exclusively for storing or handling items (whether goods or materials) pending their sale, but from which no retails sales are made, and includes local distribution premises. D. The EPA notes in a letter regarding the EPL application for the Premises addressed to the EPA from Aussie Skips Recycling Pty Ltd (Aussie Skips) dated 14/02/19, the following is stated: We intend to use this site for receipt, storage and export of soils, aggregates, VENM and other waste materials. E. The Strathfield Local Environmental Plan 2012 specifically defines waste disposal facility, waste or resource management facility, and waste or resource transfer station, which would be applicable for the intended waste activity outlined by Aussie Skips. None of these are referenced in the current proposed development for the DA of the Premises. The EPA will seek confirmation from Strathfield Council in relation to this matter. F. In the EPL application, the Applicant has applied to receive up to 200,000 tonnes per annum of general solid waste (non-putrescible) with the waste types proposed to be received being VENM, grit sediments and screenings, fully cured concrete waste, asphalt, soils that meet the CT1 threshold, other materials that meet the requirements of resource recovery orders. G. It should be noted that receipt of over 100,000 tonnes of waste triggers State Significant Development in accordance with the SEPP (State and Regional Development) 2011. The EPA will seek confirmation from the Department of Planning & Environment in relation to this matter." 1. On 2 April 2019, the Applicant responded to the Respondent's Notice to Supply. In that response, the Applicant noted that the Consent was granted pursuant to the LEP 2003 and the Ordinance, and not LEP 2012. This response also stated: "The activity as described in the Statement of Environmental Effects (SOEE) and approved by Strathfield Council is, in fact, a soil/spoils waste transfer yard, which is consistent with the definition of Waste Storage. Our advice is that the activity has lawful authority and further clarification from Council is unnecessary and problematic… We reiterate the SOEE defines (based on truck movements) an intended scale of throughput of 200,000 tonnes per annum. In fact, it presupposes much higher truck movements and thus even higher tonnage throughputs than that applied for. Also, for your information, we have commissioned EMM to conduct noise monitoring, to confirm our operational compliance with noise limits, as per the Consent." 1. Annexed to the Applicant's response to the Notice to Supply were a number of documents providing the Respondent with additional information in relation to the Site, as per its request. These annexures included: 1. approved plans for the Site prepared by Borg Architects, incorporated into the Consent; 2. an acoustical assessment report prepared by SLR in relation to the Consent; 3. the SEE; 4. approved stormwater drainage plans prepared by Aztec Engineers incorporated into the Consent; 5. a letter that the Applicant sent to the Respondent on 19 March 2019 in relation to the Licence Application and permissibility of the proposed scheduled activity on the Site; and 6. works as executed plans prepared by Aztec Engineers. 1. On 4 April 2019, Strathfield Municipal Council sent a letter to the Respondent in relation to the Site, the Consent, and the Licence Application. In this letter, the Council stated: "You are advised that the Development Consent used (sic) on the (sic) 2 May 2013 was for the construction of an industrial warehouse building with an associated workshop and used as a materials handling yard. The proposed use by Aussie Skips Pty Ltd (sic) as a Waste Recycling Centre is a prohibited use in the IN1 Zone. The approved use in 2013 falls within the Permitted Uses Schedule of the SLEP and consent was issued by the Council. The approved use is not for a Waste Recycling Facility as defined in the SLEP 2012." 1. On 9 April 2019, the Respondent sent a letter to the Applicant: 1. indicating the Respondent's intention to refuse the Licence Application; and 2. inviting the Applicant to withdraw the Licence Application. 1. This letter states: "Strathfield Council has informed the EPA that the proposed use of the Premises is a prohibited use in the IN1 Zone, and the approved use (for the Premises) is not for a Waste Recycling Facility as defined in the SLEP 2012. As you are aware, pursuant to Section 50 of the Protection of the Environment Operations Act 1997, the EPA is unable to issue an environment protection licence for an activity that has not been granted development consent by the appropriate consent authority. Therefore, the EPA invites Aussie Skips Recycling Pty Ltd to withdraw its application for an environment protection licence and receive a full refund of its application fee. Further applications can be made to the EPA for a licence, when the appropriate development consent has been obtained from Council. If Aussie Skips Recycling Pty Ltd does not withdraw the Application, the EPA will refuse the Application and the licence application fee cannot be refunded." 1. On 7 May 2019, the Respondent issued a notice of intention to refuse the Licence Application (Notice of Intention). The Notice of Intention lists four grounds on which the Respondent intended to refuse the Licence Application. These grounds are, in summary, as follows: 1. lack of a development consent; 2. inadequate noise assessment; 3. inadequate water assessment; and 4. air assessment not provided. 1. On 24 May 2019, the Applicant sent a letter to the Respondent responding to the Notice of Intention. It stated, in summary: 1. in relation to lack of a development consent – s 50(2) of the POEO Act sets the relevant standard on this issue. The Consent is sufficient to meet the requirements in s 50(2) of the POEO Act. Therefore, the Licence Application cannot be refused on this ground; 2. in relation to inadequate noise assessment – that noise monitoring conducted by EMM regarding the Site (required as part of the acoustical assessment report prepared for DA 2012/175) sufficiently addresses the Respondent's concerns insofar as it relates to noise issues; 3. in relation to inadequate water assessment – that: 1. the Applicant has provided the Respondent with sufficient information on water quality, including a water quality control report; and 2. given it is open to the Respondent (and not uncommon) to impose conditions relating to water assessment issues under the "Pollution Studies and Reduction Programs" section of a licence, it is entirely unreasonable for the Respondent to simply refuse the Licence Application on this point; and 1. in relation to air assessment – that given it is open to the Respondent (and not uncommon) to impose conditions relating to air assessment issues under the "Special Condition" section of a licence, it is entirely unreasonable for the Respondent to simply refuse the Licence Application on this point. 1. The following documents were attached to the letter of 24 May 2019: 1. a letter from the Applicant to the Respondent regarding the Consent and the issue of permissibility of use dated 11 April 2019; 2. a letter from the Applicant to the Respondent regarding a notice of intention by Council to issue a development control order dated 24 May 2019; 3. an acoustic compliance and verification report prepared by EMM and dated June 2019; 4. a water quality control report prepared by Kozarovski and Partners dated 1 April 2013; and 5. a lease terms agreement between Tinnock Pty Ltd and the Applicant (which sought to address the Respondent's concerns about whether the Applicant was an entity to whom a licence could be issued in relation to the Site under the POEO Act). 1. On or about 5 July 2019, the Respondent determined to refuse the Licence Application and issued a notice of refusal, dated 5 July 2019 (Notice of Refusal). The reasons for the decision to refuse the Licence Application are set out in the Notice of Refusal. Those reasons are, in summary, as follows: 1. lack of a development consent; 2. inadequate water assessment; 3. air assessment not provided; and 4. inadequate information about waste. 1. On 26 July 2019, the Applicant commenced these appeal proceedings in the Land and Environment Court. 2. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 29 November 2019 and 7 February 2020. I presided over the conciliation conference. 3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The decision is to grant the environmental protection licence to the applicant to permit the carrying out of waste storage activities at the site pursuant to s 55 of the POEO Act on the conditions as set out in Annexure "A" hereto. 4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the relevant jurisdictional prerequisites of relevance in these proceedings. In that regard, I note that: 1. The Applicant commenced these proceedings in the Land and Environment Court on 26 July 2019, pursuant to s 287 of the POEO Act. 2. Section 287 of the POEO Act is contained within Part 9.2 of the POEO Act. Under s 17 of the LEC Act, the Court has jurisdiction to hear and dispose of appeals under Part 9.2 of the POEO Act. 3. Section 50(2) of the POEO Act requires that a licence that relates to controlled development must not be granted unless development consent has been granted for the controlled development. 4. The parties now agree that DA 2012/175 has been issued by Strathfield Council on 19 February 2013 for the controlled development. 5. On 14 February 2019, the Applicant submitted the environment protection licence application the subject of these proceedings, being Licence Application No. 21256 dated 7 February 2019 to the "appropriate regulatory authority" pursuant to s 53 of the POEO Act. 6. The "appropriate regulatory authority for the issue of a licence" such as the Licence Application is the Respondent, in accordance with ss 6, 53 and 55 of the POEO Act. 7. Under s 55(1) of the POEO Act, the Respondent has the power to refuse an application for the issue of an environment protection licence. 8. On 5 July 2019, the Respondent determined to refuse the Licence Application. 9. The parties agree that the Licence Application the subject of this appeal is one which the Court may hear and dispose of. 10. Section 45(f) of the POEO Act requires the regulatory authority to take into account whether or not the Applicant for a licence is a fit and proper person within the meaning of s 83 of the POEO Act. 11. The parties agree that the Applicant for the licence is a fit and proper person. 1. For the reasons outlined and based on the evidence referred before me I am satisfied 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. Accordingly, the Court orders that: 1. The appeal is upheld. 2. Licence Application No. 21256 dated 7 February 2019 for an environmental protection licence to carry out waste storage activities located at Lot 15 DP 1133214, also known as 13 Bellfrog Street, Greenacre, NSW, 2190, is approved pursuant to s 55 of the Protection of the Environment Operations Act 1997 on the conditions as set out in Annexure "A". ………………………. S Dixon Senior Commissioner of the Court Annexure A (111 KB, pdf) ********** Amendments 18 November 2020 - Grammatical errors in [1] have been corrected pursuant to the slip rule. 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: 18 November 2020