Appellant v First Respondent

PLANNING - Interpretation of Kingston Planning Scheme - Characterisation of proposed use of land - Whether processing coarse timber mulch constitutes 'Materials recycling' - Tribunal erred by incorporating condition as an element of definition of 'Materials recycling' - Appeal allowed.

1 The first respondent, Mobius Materials Recovery Pty Ltd ('Mobius') proposes to use certain land in Pine Lane, Heatherton ('the land') located within the area covered by the Kingston Planning Scheme ('the Scheme') for certain purposes connected with its waste management business.

2 To that end, Mobius applied to the Kingston City Council ('the Council'), which is the responsible authority, for a planning permit to allow the use of the land for vehicle storage and for the re-processing of mulch for use in agriculture and to construct buildings and carry out works. The Council determined that the proposed use was 'industry' and thus a prohibited use under the Scheme and refused the permit.

3 Mobius applied to the Victorian Civil and Administrative Tribunal ('the Tribunal') for review. A significant issue in the review is the proper characterisation of the proposed land use for the purpose of determining whether the proposed use is prohibited under the Scheme or is a use that is permitted subject to the obtaining of a permit. That issue was the subject of a preliminary determination by the Tribunal, which found that the use was not prohibited but did require a permit.

The proposed use of re-processing mulch for use in agriculture on the subject land is an innominate discretionary use. A permit is required for such use under the Green Wedge Zone in the Kingston Planning Scheme.

5 The Council seeks leave to appeal from that determination.

6 The primary facts are not controversial and can be briefly stated.

7 Mobius is a waste management company, specialising in the collection and recycling of domestic building waste. It operates a waste processing site in Dandenong. At that site, Mobius sorts co-mingled waste obtained from domestic builders and separates recycling material including timber, cardboard, soil, bricks, concrete, metals and various other materials. Metals, cardboard and polystyrene are sent off to other operators for recycling.

8 From the waste it retains, Mobius produces large quantities of recycled crushed rock, coarse timber mulch and filtered soil all of which it provides for commercial sale. Surplus materials are sent to landfill.

9 The coarse timber mulch which it produces at the Dandenong site is sold to customers. Some customers have requested a finer grade mulch and Mobius perceives a market for it. In order to meet that demand, Mobius intends that some of the coarse timber mulch will be brought to the land where it will be processed to a finer grade using a single portable tub grinder.

10 It is also proposed that the land will be used to store vehicles used in the collection and transport of the recycled building products. Vehicle storage will account for 80 per cent of the activities proposed to be undertaken on the land. The remaining 20 per cent of the activities will be taken up with the processing of the finer grade timber mulch which I have just described.

11 As will appear in more detail below, the parties contended that the proposed use fell into one of three categories of use specified in the Scheme. The Council said that the use of the land was 'Industry' on the basis that involved the 'treating of waste materials'.[1] Mobius contended that the prosed use did not fall within any specified category and thus fell into the catch-all category in section 2 being 'Any other use not in Section 1 or 3'. In the alternative, Mobius said that the activity was 'Materials recycling' and was in section 2.

12 The land is located within the Green Wedge Zone ('GWZ') under the Scheme.

13 The GWZ is subject to some specific controls in cl 35.04 of the Scheme. The purpose of the GWZ includes:

To implement the Municipal Planning Strategy and the Planning Policy Framework.

To provide for the use of land for agriculture.

To recognise, protect and conserve green wedge land for its agricultural, environmental, historic, landscape, recreational and tourism opportunities, and mineral and stone resources.

To encourage use and development that is consistent with sustainable land management practices.

To encourage sustainable farming activities and provide opportunity for a variety of productive agricultural uses.

To protect, conserve and enhance the cultural heritage significance and the character of open rural and scenic non-urban landscapes.

To protect and enhance the biodiversity of the area.[2]

14 As contemplated by cl 71.03, cl 35.04-1 provides for a table of land uses for the GWZ divided into three sections: section 1 sets out uses that are permitted and do not require a permit; section 2 sets out uses that require a permit; and section 3 sets out uses that are prohibited. Where an item in section 2 is made subject to conditions it is necessary that the conditions are satisfied in order for the use to be permitted. In the event that the conditions are not satisfied the relevant use is prohibited.[3]

15 In the GWZ, the prohibited uses include 'Industry (other than Materials recycling, Refuse disposal, Transfer station, Research and development centre and Rural industry)'.[4] Each of the sub-categories carved out of the definition of 'Industry' are dealt with in section 2 and are allowed with a permit subject to meeting any applicable condition.

16 Relevantly 'Materials recycling' is found in section 2, provided it is undertaken subject to the following conditions:

Must be used in conjunction with Refuse disposal or Transfer station.

Must not include the collecting, dismantling, storing, recycling or selling of used or scrap construction and demolition materials.[5]

17 The meaning to be given to "Industry" and 'Materials recycling" is addressed in cl 73 of the Scheme.

A term used in this planning scheme has its ordinary meaning unless that term is defined:

• In this planning scheme; or

• In the Planning and Environment Act 1987 or the Interpretation of Legislation Act 1984, in which case the term has the meaning given to it in those Acts unless it is defined differently in this scheme.

19 Clause 73.03 provides a table of definitions. The prefatory words to cl 73.03 provide further guidance as to how the table is to be applied. Clause 73.03 relevantly states:

The table to this clause lists terms which may be used in this planning scheme in relation to the use of land. A term describing a use or activity in relation to land which is not listed in the table must not be characterised as a separate use of land if the term is obviously or commonly included within one or more of the terms listed in the table.

Meaning of terms

A term listed in the first column, under the heading 'Land use term', has the meaning set out beside that term in the second column, under the heading 'Definition'.

No definition of listed term indicates ordinary meaning

A term listed in the first column, under the heading 'Land use term', which does not have a meaning set out beside that term in the second column, under the heading 'Definition', has its ordinary meaning.

20 The table in cl 73.03 (which as noted supplies the definition of 'Industry' and 'Materials recycling' amongst others) is headed 'Land Use Terms'. The table is divided into four columns. The first identifies the relevant land use term. The second provides a definition for that term. The third sets out what other uses are included with the defined land use term and the fourth records whether the defined land use term is included in another term.

21 The definitions for 'Industry' and 'Materials recycling' in the table to cl 73.03 are as follows:

Land used for any of the following operations:

a) any process of manufacture;

b) dismantling or breaking up of any article;

c) treating waste materials;

d) winning clay, gravel, rock, sand, soil, stone, or other materials (other than Mineral, stone, or soil extraction);

e) laundering, repairing, servicing or washing any article, machinery, or vehicle, other than on-site work on a building, works, or land; or

f) any process of testing or analysis.

If on the same land as any of these operations, it also includes:

a) storing goods used in the operation or resulting from it;

b) providing amenities for people engaged in the operation;

c) selling by wholesale, goods resulting from the operation; and

d) accounting or administration in connection with the operation.

If Materials recycling, goods resulting from the operation may be sold by retail.

Materials recycling

Refuse disposal

Transfer station

Research and development centre

Rural industry

Service industry

Land used to dismantle, treat, process, store, recycle, or sell refuse, used or surplus materials.

22 The last entry in section 2 of cl 34.05-1 refers to 'Any other use not in Section 1 or 3'. This is sometimes described in the vernacular as an 'innominate use' although the Scheme does not use that phrase.

23 In deciding whether a proposed use falls within a specified land use it is necessary for the decision maker to determine the real and substantial purpose of the activity. This determination is 'not to be approached through a meticulous examination of the details of processes or activities, or through a precise cataloguing of individual items of goods dealt in, but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date.'[6] In Cascone v Whittlesea Shire Council,[7] Ashley J summarised the relevant principles:

(1) In characterising the proposed use of premises it is always necessary to ascertain the purpose of the proposed use.

(2) Whilst intended use of premises, in the sense of activities, processes or transactions to be undertaken, will be useful in casting light upon the purpose of the proposed use, it is wrong to determine the relevant purpose simply by identifying activities, processes or transactions and then fitting them to some one or more uses as defined in a scheme.

(3) It is wrong to approach the ascertainment of purpose of proposed use on the footing that it must fit within one (or more) of the uses defined in a scheme; at least that is so where there is provision for innominate uses in the scheme.

(4) The ascertainment of purpose of a proposed use may yield the result that the purpose revealed very largely falls within a defined use. The extent to which it does not may be so trifling that it should be ignored. In that event the purpose as revealed should be taken to fall within the defined use.

(5) The ascertainment of purpose of a proposed use may yield the result that more than one separate and distinct purpose is revealed. In that event the question initially arises whether one is dominant. The further question that may arise is whether the lesser purpose or purposes are ancillary to the dominant purpose. If the answer to both questions is 'yes', and the dominant purpose is available as of right or is permitted, the lesser purpose or purposes are legitimised. Then, in planning terms, there is but one purpose. But if the answer to the first question is 'no', each revealed purpose must be available as of right or permitted, else there will be a breach of the scheme. The mere fact that one purpose is authorised will not prevent other revealed purposes from being prohibited.

(6) In resolving the problems of characterisation raised in the preceding pars (1) to (5) the preferable view, in my opinion, is that the adjectival phrase 'real and substantial' qualifying 'use' will always be nominally present. But it is unlikely to be of practical importance in many cases. It will always serve to emphasise that there is a distinction between 'purpose of use' and 'use' in the sense of activities, processes or transactions. It should not be used to cloud the potential for more than one purpose being revealed. It should not be thought to provide a basis for treating a combination of activities, processes or transactions as necessarily attracting the appellation of 'innominate use'. It is likely to be of practical importance in cases falling within pars (4) and (5) above.[8]

24 It is necessary to say something about the submissions made by the parties in the Tribunal.

25 As already noted, Mobius submitted that the proposed use did not fit within any of the listed items within the table of uses and was therefore an innominate use under section 2.

26 In the alternative, Mobius submitted that it would be open to the Tribunal to find that the use fell within the term 'Materials recycling' and that it satisfied the condition requiring that the use occur in conjunction with a 'Transfer station'. In its written submission it referred to coarse mulch that it proposed to send from Dandenong to the land as 'surplus timber mulch'.

27 In answer, the Council submitted that the proposed use fell within the definition of 'Industry' and specifically constituted the 'treatment of waste materials'. In order to bring the coarse mulch within the definition of waste materials, it called in aid the definition of 'industrial waste' under the Environment Protection Act 2017 ('EP Act') and the Environment Protection Regulations 2021 ('EP Regulations').

28 The EP Act defines waste to include matters that are prescribed as waste. As contemplated by the definition of waste in the EP Act, the EP Regulations prescribe a number of things to be 'waste' including:

(a) commercial garden and landscaping organics that does not contain any physical or chemical contamination;[9]

(b) timber treated with hazardous substances, including sawdust;[10] and

(c) untreated timber, including sawdust.[11]

29 In answer to Mobius' alternative submission that the activity involved 'Materials recycling' the Council submitted that the coarse mulch did not fall within the definition of 'Materials recycling' because it was not surplus. It submitted:

Mulch, proposed to be received has already be [sic] physically treated by shredding and mixing to convert it from its previous 'used or surplus' state. The mulch is a product for the purpose of the Australian Standard, albeit remaining an industrial waste that is able to be land applied via a declaration of use under the Environment Protection Act 2017 (Vic). This same approach will apply to all products compliant with the Australian Standard, including compost and soil conditions and is a major reform introduced by the environment protection legislation.

The mulch, already treated, is not 'refuse' which has a common meaning:

"noun 1. that which is discarded is worthless or useless; rubbish.

30 In its oral submissions, the Council relied on the oral evidence of Mr van Huizen who gave evidence on behalf of Mobius. Mr van Huizen had told the Tribunal that some of the coarse material produced by it at Dandenong would be taken to the land. After its arrival there, some would be sold or delivered to customers and some would be further refined to produce the finer grade mulch.

31 Based on that evidence the Council submitted that the coarse material was not surplus because Mobius was selling it into the marketplace and that it was clean mulch that was 'all good to go'.

32 The Tribunal summarised the facts and the parties' submissions.

33 The Tribunal noted the Council's submission that the processing of the coarse mulch fell with the definition of 'Industry' on the basis that it involved treating waste materials.[12] It referred to the Council's reliance on the EP Act and EP Regulations.[13]

34 The Tribunal then recorded Mobius' submission that the land use terms were too general for the purpose and was better described as an 'innominate use'.[14]

35 After recounting the submissions of the parties and setting out some of the definitions drawn from the Scheme the Tribunal proceeded to state its conclusions. It is convenient to set out that part of the reasons in full:

The coarse form timber mulch proposed to be brought onto the subject site has already been processed from building waste materials. It does not come to the subject site as a waste material, although it was derived from waste materials. It comes to the site already in a processed form as an end product in its own right. What is to occur on the subject site is the further refining of this product.

Because the process of 'treating waste materials' as referred to under the definition of industry in the planning scheme has already occurred elsewhere. I do not consider that the proposed further refining of the coarse mulch falls within the definition of 'industry'.

As submitted by the applicant the proposal could fall within the definition of 'materials recycling'. I agree that what is proposed does 'not include the collecting, dismantling, storing, recycling or selling of used or scrap construction and demolition materials'. However, I consider that to meet the definition of a transfer station as referred to within condition one is an attempt to squeeze the proposed use into a definition within the planning scheme which is unnecessary.

I find the preferable description of the proposed use of the re-processing of coarse mulch into fine grade mulch on the subject land is as an innominate use which does not fall within either section 1 or section 3 of the GWZ and therefore requires a permit.[15]

36 As provided for by s 148 of the Victorian Civil and Administrative Tribunal Act 1998 ('VCAT Act'), an appeal from a decision of the Tribunal may be made to this Court on a question of law.[16] As is well established the existence of a question of law is the subject matter of an appeal and it is necessary for the appellant of formulate a question of law. It is the articulation and resolution of the question of law that informs the determination of the corresponding ground of appeal.

37 The Council sets out eight questions of law and propounds eight corresponding grounds of appeal. The questions and questions can be grouped into three topics.

38 The first two questions and grounds are addressed to the Tribunal's findings and conclusion in relation to whether the coarse timber mulch is 'waste materials' for the purpose of the definition of 'Industry' in the Scheme.

(a) The Tribunal erred in law in construing the term 'waste materials' in the definition of 'Industry' in cl 73.03 of the Scheme to exclude the coarse timber mulch on the basis that the coarse timber mulch had been processed at another site.

(b) It was not open for the Tribunal to find that the coarse timber mulch was not 'waste materials' within the meaning of the definition of 'Industry' in cl 73.03 of the Scheme for the purpose of characterising the use given the Tribunal found that it 'derived from building waste materials' and was brought to the site for 'further refining of this product'.

Industrial waste and the EP Act and EP Regulations

40 Questions 3, 4 and 5, and the corresponding grounds, assert that in construing the term 'waste' or 'waste materials' the Tribunal was required to have regard to, and apply, the definition of the phrase 'industrial waste' in the EP Regulations.

41 Grounds of appeal 3, 4 and 5 are in the following terms:

(a) The Tribunal erred in law by failing to consider whether the coarse timber mulch was 'industrial waste' under the EP Regulations, schedule 5, items 58, 59 and 60, and regulations 63(a) and 64.

(b) In the alternative, the Tribunal erred in law when finding that the coarse timber mulch was not 'industrial waste' under the EP Regulations, schedule 5, items 58, 59 and 60, and regulations 63(a) and 64, given the material before it that the coarse timber mulch 'was likely to contain contaminants'.

(c) In the alternative, there is no basis in the reasons to conclude whether and, if so, why, the Tribunal found that the coarse timber mulch was not 'industrial waste' under the EP Regulations, schedule 5, items 58, 59 and 60, and regulations 63(a) and 64.

42 The last three questions and grounds are addressed to the Tribunal's approach to the definition of 'Materials recycling' and whether the Tribunal erred in saying that the proposed use was an 'innominate use' when it had either accepted that the use was 'Materials recycling' or did not exclude that possibility and failed to give reasons for this decision on this aspect.

43 Grounds of appeal 6, 7 and 8 are expressed in the following way:

(a) Upon finding that the use 'could fall within the definition of "Materials recycling"', it was not open for the Tribunal to find that the use was an innominate use for the purpose of cl 35.04 of the Scheme given that, pursuant to cl 35.04 of the Scheme:

(i) an innominate use can only be any use not identified in Sections 1, 2 or 3 of the table at cl 35.04-1 of the Scheme; and

(ii) 'Materials recycling' is identified in Sections 2 or 3 of the table at cl 35.04‑1 of the Scheme.

(b) In the alternative, by finding that the use 'could fall within the definition of "Materials recycling"', the Tribunal failed to determine whether the use is 'Materials recycling' for the purpose of cl 35.04 of the Scheme when it was required to do so in order to find that the use is an innominate use for the purpose of cl 35.04 of the Scheme.

(c) In the alternative, the Tribunal erred by failing to give adequate reasons as to whether the Tribunal did, indeed, find that the use was 'Materials recycling' for the purpose of cl 35.04 of the Scheme.

44 These grounds are concerned with whether the Tribunal was correct to exclude 'Materials recycling' as the appropriate land use and it is convenient to deal with them at the outset.

45 In order to between understand the submissions it is convenient to repeat the following portion of the reasons:

As submitted by the applicant the proposal could fall within the definition of 'materials recycling'. I agree that what is proposed does 'not include the collecting, dismantling, storing, recycling or selling of used or scrap construction and demolition materials'. However, I consider that to meet the definition of a transfer station as referred to within condition one is an attempt to squeeze the proposed use into a definition within the planning scheme which is unnecessary.[17]

46 The Council submits that the first sentence constitutes a finding by the Tribunal that the proposed use could fall within the definition of 'Materials recycling'. It says that support for that conclusion can be found in the balance of the paragraph which is concerned with whether or not the conditions that are attached to 'Materials recycling' are satisfied.

47 The Council submits that this reveals an error of law, which it puts in two ways. First, it says that the Tribunal found that the proposed activity constituted 'Materials recycling' but then excluded it because the activity did not satisfy the condition on the basis that it did not meet the definition of 'Transfer station'. This was an error because, whether there was compliance with the conditions was irrelevant to the proper characterisation of the activity and only arose once the proper use had been identified. Further, non-compliance with the conditions did not have the effect that it ceased to be 'Materials recycling' but rather it followed that it was prohibited.

48 Alternatively, the Council submits that the Tribunal failed to decide whether or not the activity was properly characterised as 'Materials recycling' and proceeded directly to the conditions. This was an error because it was not open to conclude that the use was not otherwise specified and therefore an 'innominate use' until the Tribunal had affirmatively discounted any specified use.

49 In summary, the Council submits that it was an error of law for the Tribunal to:

(a) fail to decide whether the proposed use was characterised as 'Materials recycling'; or, if that is not accepted

(b) offer any explanation of how the proposed use 'could' be characterised 'Materials recycling', but was not.

50 Mobius accepts that before the Tribunal could conclude that the proposed land use was an innominate use, it needed to be satisfied that it was not 'obviously or commonly'[18] included within a defined land use term. In reaching its conclusions the Tribunal's reasons have to be read beneficially, in their entirety and in the context of how the arguments were presented to it.

51 Mobius submits that when the four critical paragraphs are read together it is tolerably clear that the Tribunal rejected the argument that the coarse mulch was 'waste materials' because it was an 'end product in its own right'. Mobius submits that this also entailed a rejection of its alternative submission that the coarse mulch was surplus materials.

52 Further, Mobius says the Tribunal's express conclusion in its last paragraph that the 'preferable description'[19] was that the use was an innominate use necessarily entailed a rejection of its alternative case based on the mulch being surplus. Read that way, the first sentence of the penultimate paragraph ('As submitted by the applicant the proposal could fall within the definition of "materials recycling"')[20] does no more than record Mobius' alternative submission.

53 It is not in dispute that the Tribunal could only able be satisfied that the use was an innominate use after it had first satisfied itself that the proposed activity was not obviously or commonly described by one of the specified activities. For that reason, there was a circularity in Mobius' alterative submission that, if the Tribunal were not satisfied that it was an innominate use, it could be satisfied that it constituted 'Materials recycling'. The Tribunal could only get to Mobius' primary submission once it had first concluded that the activity could not properly be accommodated within the 'Materials recycling' category and thus rejected Mobius' alternative submission.

54 I agree with the Council that, on a fair reading of its reasons, the Tribunal was, for the purpose of considering this aspect, prepared to assume the correctness of the first part of Mobius' alternative submission (that the activity could be described as 'Materials recycling') but did not accept the second (that it was used in conjunction with a 'Transfer station').

55 Mobius submits that the Tribunal satisfied itself that the activity did not fall within 'Materials recycling' on the basis that its finding that the materials were not waste materials meant that they were not surplus and that the finding in the last paragraph that the activity was properly characterised as an innominate use necessarily excluded any other use. I cannot accept that submission.

56 In my view acceptance of that submission would involve far more than an appropriately benevolent reading of the reasons and amount to a rewriting of what the Tribunal said. The Tribunal's conclusion that the goods were not waste materials, because they were an end product in their own right, did not amount to a finding that the mulch could not be surplus materials. The concepts of waste materials and surplus goods are not synonymous. True it is that Mr van Huizen said that Mobius would find a destination for the mulch, including providing some free of charge as a reward to various customers, but the Tribunal did not deal with that evidence in its analysis. Further, that part of the reasons on which Mobius relies is addressed to the question whether the mulch was waste materials rather than whether it fell within the definition of 'Materials recycling'. I accept that it is necessary to read the reasons as a whole, but the structure of the analysis, brief as it is, strongly suggests that the Tribunal was dealing with the topics discretely and in sequence.

57 Perhaps more importantly, when the Tribunal came to the question of 'Materials recycling', there was no reason for the Tribunal to address itself to whether the transfer station condition was satisfied unless it had first satisfied itself that the process involved 'Materials recycling'. On that critical anterior issue, the Tribunal acknowledged Mobius' submission that the process could involve 'Materials recycling' but did not, in terms reject it. On a fair reading, the Tribunal rejected Mobius' alternative submission on the basis that it did not satisfy the condition that it be undertaken in conjunction with a transfer station. Tellingly, the Tribunal gave no reason why the activity did not fall within the primary definition of 'Materials recycling'. That reasoning involved an error of law. Non-satisfaction of the condition did not mean that the process was not 'Materials recycling' but had the consequence that the activity was prohibited. Alternatively, the failure to determine whether or not the process came within the definition of 'Materials recycling' before turning to the condition involved a constructive failure to exercise jurisdiction.

58 In looking at the Tribunal's reasons on 'Materials recycling' it is important to recall that neither of the parties submitted that it appropriately fell within that category. The Council said the mulch was not surplus and Mobius said that this category was too general and did not capture the activity it proposed to undertake. It might have been a simple matter for the Tribunal to conclude that the activity was not 'Materials recycling'. That conclusion was plainly open on the evidence. However, I am satisfied that the Tribunal wrongly incorporated the condition as an element of the definition of 'Materials recycling' and thereby asked itself the wrong question. This was an error of law.

59 I would uphold grounds 6 and 7. It is unnecessary to resolve ground 8 because the process of reasoning, with its focus on whether the condition attached to 'Materials recycling' was satisfied is sufficiently, if sparsely, disclosed in the reasons. If I am wrong in that conclusion then the Tribunal has failed to give reasons, as it was required to do, as to why the process did not amount to 'Materials recycling'. On that basis ground 8 would have succeeded.

60 It is convenient to next deal with grounds 3, 4 and 5 which occupied much of the Council's written submission. The Council submits that in construing the word 'waste' where it appears in the phrase 'waste materials' which is contained in the definition of 'Industry', the Tribunal wrongly failed to apply, or have regard to the definition of 'waste' in the EP Act and EP Regulations. The alleged error is a failure on the part of the Tribunal to recognise that the word waste is 'affected by' or 'influenced' by the meaning given to it in the EP Act and EP Regulations.

61 The Council commenced by noting that it was only open to the Tribunal to characterise the use as 'innominate' after it had affirmatively satisfied itself that the proposed use did not fall within 'Industry' or 'Materials recycling'.

62 The Council submits that the Tribunal identified the proposed activity on the land as being the processing of timber mulch for sale. It submits that whether the prosed use was 'Industry' turned on whether the 'coarse timber mulch' constituted 'waste materials' and that, as a consequence, the use of the land entailed 'treating waste materials' and therefore fell within the definition of 'Industry'.

63 The Council's submission that the timber mulch constituted 'waste' was primarily based on a submission that the definition of waste in the Scheme had to have regard to or apply the definition of 'waste' in the EP Regulations.

64 In order to make the connection between the definition of 'waste' and the EP Regulations, the Council began by noting that the term 'waste' does not appear in the Planning and Environment Act 1987 ('PE Act') and the phrase 'waste materials' appears only four times in the Scheme.[21] On the other hand, the word 'waste' appears frequently in the EP Act. It notes that two of the stated purposes of the EP Act address waste management.[22] It also points to the inclusive definition of waste in the EP Act, which includes 'matter prescribed to be waste' and 'matter or a greenhouse gas substance referred to in [the preceding paragraphs of the definition] that is intended for, or is undergoing, resource recovery'.[23]

65 As mentioned at [2827] above, the EP Regulations prescribe a number of things to be 'waste' including:

(a) commercial garden and landscaping organics that does not contain any physical or chemical contamination;[24]

(b) timber treated with hazardous substances, including sawdust;[25] and

(c) untreated timber, including sawdust.[26]

66 Based on the failure to mention waste in the PE Act and the detailed definitions in the EP Act and EP Regulations, the Council submits that 'as a matter of law, in the circumstances of this case, the meaning of the word "waste" is affected by the meaning of the word "waste" in the EP Act'. More specifically it submits that the EP Regulations were a relevant consideration that the Tribunal was bound to take into account in construing the Scheme. Thus it was submitted that 'it was not open to the Tribunal to construe the words "waste material" as excluding the intermediate timber mulch products processed both off-site, and at the site, without considering whether that material constituted "waste" for the purpose of the EP Act'.

67 The Council also submits that the Tribunal failed to deal with its submission that the Tribunal must apply the EP Regulations definition. In this last respect, the Council had submitted to the Tribunal that it should apply the EP Regulations, and that 'as a matter of fact, the timber mulch was likely to constitute "waste" for the purpose of the EP Act'.

68 The Council submits that the failure to apply the EP Act and EP Regulations produced the consequence that the definition of 'waste' in the phrase 'waste materials' was unduly narrowed and 'would open an unsustainable breach between the EP Act and the PE Act's separate, though related, governance of the receipt, storage, and disposal of waste materials, and would be contrary to the purpose of the PE Act and its control of the use and development of the site under the Scheme through the zone.'

69 The Council says that by applying the EP Regulations definition, the coarse timber mulch would still constitute waste even if it had undergone some earlier processing or refinement at another site. It says that by imposing the requirement that the timber mulch be in an intermediate state, without having been subject to any refinement, processing or waste recovery process at any other site as the key ― if not the only ― criterion of the meaning of the word 'waste', the Tribunal impermissibly narrowed the ambit of the term.

70 It is a basic rule of construction of a legislative instrument that a word or phrase should be construed having regard to the ordinary meaning of the word or phrase but read in context including by reference to purpose and the surrounding text and the instrument as a whole. Because the task is one of construction it is always necessary to start and end the process with the text.

71 In order to succeed, the Council must show that the phrase 'waste materials' is not intended to have its ordinary meaning but is to be understood as adopting the extended definition found in a different statutory regime that is informed by different objects and purposes. That approach does not accord with principle. As explained by the High Court:

A statutory definition exists for the purposes of the particular statute in which it is contained, unless it appears in a statute expressed to have a more general application, such as the Acts Interpretation Act ... There is, therefore, no legitimate foundation for resorting to the definitions contained in [an Act] for the purpose of modifying or qualifying another statutory definition contained in a different Act of Parliament.[27]

72 As Mobius notes, the word 'waste' is not defined in either the PE Act or the Scheme and in such cases the Scheme directs that the word be given its ordinary meaning.[28] It is an ordinary English word. There is nothing in the Scheme to suggest that it is being used in other than its usual sense. There is no indication that it is intended to be a term of art.

73 The submission of the Council that the word 'waste' is not to have its ordinary meaning but is supplied by the EP Act and EP Regulations has no foothold in the text of the Scheme. There is no point of reference that would direct the reader to an external source such as the EP Act. Indeed, the Council relies on the absence from the PE Act and the Scheme of any textual indication such as a definition or other elucidation as the reason to look elsewhere. In my view, given that the word 'waste' is readily understood and is not a term of art, it would require much more than an absence of detail to justify picking up a statutory definition from a different regime.

74 The submission of the Council would also produce the remarkable result that the meaning of 'waste' for the purpose of planning schemes under the PE Act would vary depending on the form of regulations made under the EP Act from time to time. Admittedly, the effect of a change in the EP Regulations would not alter the meaning of the PE Act because the word 'waste' does not appear in it, but it may have significant consequences for planning instruments. Further, the objects and purposes of the EP Act are, unsurprisingly, different to those in the PE Act and although it would change the operation of planning schemes that contain the word 'waste' there would be no necessity for the maker of the EP Regulations to turn its mind to how the changes to the EP Regulations might interact with planning schemes.

75 It may be accepted that in some cases different legislative instruments may share definitions or be required to be read in tandem so as to produce a harmonious result. Usually where one definition or part of an Act is adopted by another the adoption will be express. That approach is also adopted in the Scheme where, for example, cl 73 adopts the definitions of 'gaming machine' in the Gambling Regulation Act 2003 and 'sex work' in the Sex Work Act 1994. There are other examples.

76 The notion that two instruments should be treated as in pari materia is not novel, but it is relatively rare. As already observed there is no express link between the two regimes and, in my view, none can be implied. The PE Act and EP Act have different purposes, different decision makers and confer different powers. Environmental protection, pollution and waste management are all factors that may be relevant in a planning context but that fact in itself does not mean that the two regimes should be read as if they form a single regulatory subject matter.

77 It follows that those grounds that depend on a link between the meaning of 'waste materials' and the definition of 'waste' in the EP Act and EP Regulations must fail. That disposes of grounds 3, 4 and 5.

78 By way of an alternative submission, the Council says that 'the word "Industry" is broad and inclusive' and that the proposed activity was 'clearly, and undoubtedly, industrial'. I note that the Council did not put a broader argument that the proposed activities were 'Industry' based on the general meaning of the word 'industry'. Given the way the Council put its case, no question of law arises as to whether the Tribunal erred in not finding that the activity was nevertheless industry (based on this broader general meaning).

79 The Council says that given the Tribunal's findings that the coarse mulch was 'derived from waste materials' and was brought to the site for 'further refining',[29] it was not open to the Tribunal to say that the mulch was not waste materials. The Tribunal concluded that the coarse mulch that is to be brought to the site is not waste materials because it will arrive 'in a processed form as an end product on its own right'.[30]

80 As already observed, the phrase 'waste materials' is used in its ordinary meaning. The meaning of an ordinary English word is generally a question of fact, not law. On the other hand, whether facts as found answer a statutory description or satisfy statutory criteria will very frequently be exclusively a question of law.[31] If only one answer is open on the facts as found the issue will be one of law and a mistake as to the conclusion will involve an error of law. If more than one answer is possible, and there is room for different answers then the answer will often involve a question of fact. In that situation, it has been said '[w]hilst the question of whether a given set of facts could fall within such a standard is a question of law the question of whether a particular set of facts does do so is a question of fact'.[32]

81 In Wood v Adelaide Resource Recovery Pty Ltd,[33] the Full Court of the South Australian Supreme Court considered whether certain materials were waste within the relevant statutory definition under the Environment Protection Act 1993 (SA). Blue J, with whom Lovell and Hinton JJ agreed, said:

In ordinary parlance, waste is a purposive concept. It is a relative and not absolute concept. It is not an inherent characteristic of material that it comprises waste: it must be assessed from the perspective of a person whose purpose is to be considered at the relevant time. Waste is the antithesis of a product in ordinary parlance.

This dichotomy between waste and a product is reflected in the first limb of the definition of 'waste' in the Act. If material that was waste has been used to make or has otherwise become a product, by a combination of what it says and does not say the definition treats the material as no longer being waste. Thus, the definition explicitly provides that the mere fact that the material is intended for sale, recycling, reprocessing, recovery or purification does not prevent it being waste if it falls within the first part of the limb. Conversely, the definition implicitly provides that if the material has actually been sold, recycled, reprocessed, recovered or purified such that it is now a product, it is no longer waste.

The conversion of unwanted waste into a product of value may be a complex process over an extended time period. In many cases, it will be a question of fact and degree to determine the point at which waste has changed its character and become a product. However, the mere fact that there may be questions of judgment involved in determining the precise point at which this occurs does not detract from the dichotomy evident in the definition between waste and a product. The definition makes plain that mere intention to convert waste into a product will not suffice: the enquiry is into objective fact.[34]

82 The Tribunal made findings of fact that, from the perspective of Mobius, the coarse mulch was not waste. It was in a state that could be sold to customers of Mobius and there is a market for it. After the processing in Dandenong it was, as the Tribunal found, an end product in its own right. The product was derived from the waste products of domestic builders, but it was collected by Mobius and brought to Dandenong as an input for its business. Even if it were considered to be waste before processing, it was well open to regard it as no longer being waste once it was processed into mulch. From the perspective of both Mobius and its customers it was a valuable commodity.

83 It may be inferred that the further processing or refining that is to occur at the land would either make the product more valuable or increase the range of customers who might purchase the product. However the fact that there was to be further processing did not render the intermediate product waste.

84 The Council submits that the Tribunal wrongly narrowed the definition of waste by excluding any item or thing that had undergone some form of refinement, processing or waste recovery. I reject that submission. The Tribunal did not reason in that way. Rather, the Tribunal accepted that, on the facts of this case, the processing that occurs at Dandenong converts the timber waste into coarse mulch which is a valuable end product. The Tribunal did not say that any form of processing would prevent something being regarded as waste. As Blue J observed in Wood, the conversion of unwanted waste into a product of value may be complex. A product may not cease to be waste until a level of refinement or processing has been completed. Much will depend on the nature of the processing and the degree of change effected during the process. For example, waste water may continue to be waste even though it has undergone some level of treatment and some, but not all of its contaminants have been removed. That is not this case, given the Tribunal's finding that the coarse mulch was an 'end product in its own right'.

85 Given there was no error in the Tribunal's conclusion that the coarse mulch to be brought to the land was not waste material, it is not necessary to consider Mobius' further submission that the processing and refinement that is intended to take place on the land does not constitute 'treatment' and therefore the activity is not 'treating waste materials' within the definition of 'Industry'.

87 Order 1 of the orders made by the Tribunal on 22 July 2021 must be set aside and the matter remitted to the Tribunal. I see no reason why the matter should not be remitted to the same Senior Member. The determination was interlocutory and did not involve any contested questions of fact or determination of the credit of any party or witness. The determination of the preliminary question was of a relatively routine kind and the reasons of the Senior Member do not provide any basis for thinking that it would be inappropriate or otherwise unsuitable for her to continue with the matter.

[1] The Council did not rely on any other part of the definition of 'Industry'.

[6] Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529, 535 (Kitto J); [1964] HCA 37.

[7] (1973) 11 AATR 175.

[8] Ibid 190, quoted in Stanley Rural Community Inc v Stanley Pastoral Pty Ltd (2017) 54 VR 676, 694-5 [79] (the Court); [2017] VSCA 385.

[9] EP Regulations, schedule 5, item 58.

[12] Mobius Materials Recovery Pty Ltd v Kingston CC [2021] VCAT 788, [10]-[12] ('Reasons').

[16] An appeal may be made under s 148 with respect to an interim order of the Tribunal: see VCAT Act, s 3 (definition of 'order'); National Trust of Victoria v Victorian Civil and Administrative Tribunal (2010) 30 VR 103, 115 [67] (Osborn J); [2010] VSC 430.

[21] The word 'waste' appears at cl 19.03-5S, cl 22.09-3 and twice in cl 73 of the Scheme.

[24] EP Regulations, schedule 5, item 58.

[27] Yager v R [1977] HCA 10; (1977) 139 CLR 28, 43 (Mason J); [1977] HCA 10.

[31] Vetter v Lake Macquarie City Council (2001) 202 CLR 439, 450 [24] (Gleeson CJ, Gummow and Callinan JJ); [2001] HCA 12.

[32] Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; (2018) 261 FCR 301, 317 [49] (Perram J); [2018] FCAFC 93 (emphasis in original) (citations omitted).

[33] (2017) 127 SASR 296; [2017] SASCFC 13 ('Wood').

[34] Ibid 305 [44]-[46] (emphasis in original).