NSW Land and Environment Court Decision: 'One man's waste…'

A recent case in the NSW Land and Environment Court has highlighted the discord between NSW’s planning laws and the environmental protection laws, which could impact the way that waste and recycling processors are approved and regulated.

The case in question was between Glass Recovery Services - the owner of a glass beneficiation facility in Penrith - and the Department of Planning and Infrastructure. The conflict stems from the reprocessing of glass; specifically whether glass is a ‘waste’ for the purpose of reprocessing at a ‘waste or recourse recovery facility’. (This would require development consent, in comparison to a ‘second-hand good’ used for manufacturing, which would not.)

The Department of Planning and Infrastructure argued that glass reprocessing is the processing of ‘waste’ at a ‘waste or resource recovery facility’. But when Justice Nicola Pain looked for the definition of ‘waste’, she found that there was no unified regulatory definition of the word. It is different or non-existent depending on where you look.

The Environmental Planning and Assessment Regulation 2000 NSW Sch 3 defines waste as any “solid, gaseous or liquid or a combination of any solids, gases or liquids that is discarded or is refuse…  A substance is not precluded from being a waste… merely because it can be reprocessed, re-used or recycled or because it is sold or intended for sale” (emphasis added).

However, this regulation - and therefore definition - only applies to ‘designated developments’. The glass beneficiation application was classified as ‘state significant development’.

The State Environmental Planning Policy (Infrastructure) (the Infrastructure SEPP) and the Environmental Planning and Assessment Act 1979 (EP&A Act) do not define ‘waste’ at all. To add further confusion, the Infrastructure SEPP defines a resource recovery facility as a “facility for the recovery of resources from waste… but not including re-manufacture of material” (emphasis added).

With these issues in mind, the court sought a definition from the common usage via a dictionary, relevant case law and a definition in the Protection of the Environment Operation Act 1997 (POEO Act), which defines waste as “any (thing) discarded, rejected, unwanted, surplus…”. This definition is one that most people from the waste sector are familiar with.

Justice Pain found that ‘waste’ is discarded or unwanted, surplus or abandoned; but, in a relevant case (the Carter Holt case), that a former owner needs to have abandoned the material for it to conform to a common sense meaning of waste. In the case of Carter Holt, recycled paper had not been abandoned and was therefore not ‘waste’. It was, as J Pain stated, a ‘second-hand good’.

Using this definition, the Court found that the glass in question should not be classified as ‘waste’. The Material Recycling Facility (MRF) process ensures that the glass has undergone a transformation from waste to ‘second-hand good’ (of which there is also no formal definition).

To put it another way, the MRF deals with waste, but once the glass is sorted (no matter how contaminated) it becomes ‘second-hand’ glass and is no longer ‘waste’. (I have concerns that the issue of contamination was not better dealt with in the hearing or judgement. For example, what amount of contamination renders ‘second-hand goods’ back into waste, if at all?)

The impact of the case is that ‘waste’ is not consistently defined in either planning or environmental protection laws. Further, we have the entry of a new concept of ‘second-hand goods’ into the recycling and waste approvals space.

Think glass, plastic, steel, paper and cardboard, aluminium, timber, pallets, tyres, electronics, etc. At some point along the supply chain, they can presumably swap from ‘waste’ to second-hand goods with reference to the EP&A Act and this Court decision (but presumably not the environment protection acts, eg, POEO).

This difference will, of course, lead to confusion in respect of Planning consent applications and enforcement under the POEO Act. Of course, a simple remedy is for the Department of Planning to amend the EP&A Act to reference the same definitions as exist in the POEO Act.

But this case highlights a more strategic issue: when does waste cease to be waste and become second-hand material? The organics industry has been arguing for years that once food/green waste is processed through a composting/pasteurisation process, it ceases to be waste; similarly the electronics, timber and paper industries (to name a few).

Perhaps it is time to reconsider the whole approach to defining waste in NSW; to take better account of the transformational effect of recycling and reprocessing, to converting materials from waste to recovered goods or, to borrow the phrase, ‘second-hand goods’. That, of course, needs to be balanced against the requirement to protect the environment from waste potentially masquerading as ‘second-hand goods’.

Whichever way government decides to go, this case highlights the need for a strategic approach to waste infrastructure development and particularly proper alignment of priorities between the Department of Planning and the EPA.

Image credit: freeimages.com/profile/creationc