On 4 March 2016, a decision of the Environment, Resources and Development Court of South Australia was handed down in the matter of Wood v Adelaide Resource Recovery P/L (No 2) SAERDC 6.
This case involved an EPA prosecution for contravention of licence conditions in relation to the alleged stockpiling of ‘waste’ on site.
The case is interesting because it considered the meaning of ‘waste’ under the Environment Protection Act 1993 (SA). The breadth of the definition in the Act suggests that surplus materials are technically ‘waste’, even though they may be suitable for beneficial uses.
His Honour Judge Costello drew on discussion about the meaning of ‘waste’ in other cases to confirm that the characterisation of matter as ‘waste’ under the Environment Protection Act 1993 (SA) is not absolute – at some point in time, waste material might cease to be ‘waste’.
The Court found that this will occur when the character of the material has changed through, for example, being reprocessed, sold or gifted. As such, it does not appear to depend on satisfaction of the criteria in clause 4 of the Environment Protection (Waste to Resources) Policy 2010 (which provides that ‘waste’ continues to be ‘waste’ unless certain circumstances apply in which case it is a ‘product’). In fact, Judge Costello concluded that clause 4 is invalid.
In the matter considered by the Court, the ‘waste’ consisted of domestic waste that had been collected, delivered to the defendant’s premises and then processed before being stockpiled ahead of its intended use as refuse derived fuel.
Judge Costello accepted that the material was clearly ‘waste’ when it was left out on the street and possibly also when it arrived at the entrance to the defendant’s site. However, once in the defendant’s possession it was clearly ‘viewed’ in a different light because it was ‘wanted’ as a resource with real value. It had therefore changed character and was no longer ‘waste’ for the purposes of the Act.
Given this conclusion, even if clause 4 of the Environment Protection (Waste to Resources) Policy 2010 was within power, Judge Costello found that it had been satisfied.
As such, the EPA’s prosecution failed.
The implications of this case are yet to be seen although we understand that the EPA has indicated that it may appeal the decision. Even if it doesn’t appeal, it is possible that the decision will prompt the EPA to seek to amend the Environment Protection (Waste to Resources) Policy 2010 to give better effect to its intention in terms of the characterisation of material proposed for reuse.
This is another instalment in a complex area of law, and is unlikely to be the last, as regulators across Australia grapple with pre-existing waste legislation in the context of a policy shift favouring reuse of materials over disposal.