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[2013] VSC 582
Supreme Court of Victoria
2013-10-29
KYROU J
Original judgment source is linked above.
ENVIRONMENT PROTECTION - Category C contaminated soil - Such soil used to construct a firewall separating brown coal seam in mining operation from landfill operation on same site - Exemption from landfill levy - Whether amendment to exemption to insert an expiry date valid - Issue of classification restricting the off-site uses of Category C contaminated soil - Whether classification valid - Whether use of Category C contaminated soil in firewall constituted a 'direct beneficial reuse' and, if so, whether the soil 'has been consigned for [that] use' - Environment Protection Act 1970 ss 1A, 1I, 4(1), 13, , , , sch E - regs 5, 16, 20 - regs 1, 5, 6-11, 33, 43-6, 48, schs 2-3.
TAX - Claims for repayment of landfill levy paid to Environment Protection Authority and into a designated bank account - Whether claims statute barred - Whether plaintiff would make a windfall gain - Limitation of Actions Act 1958 s 20B.
REMEDIES - Declaration - Whether declaration sought is a remedy 'in the nature of certiorari' - Whether discretionary grounds for refusing relief - Supreme Court (General Civil Procedure) Rules 2005 O 56.
1 This consolidated proceeding concerns whether the plaintiff, Maddingley Brown Coal Pty Ltd, is liable to pay to the defendant, the Environment Protection Authority ('EPA'), a landfill levy on contaminated soil that the plaintiff uses in the construction of a firewall ('Firewall') at its premises at East Maddingley Road Bacchus Marsh ('Site').
2 The plaintiff conducts a brown coal mining business and a solid waste landfill business at the Site. The EPA has required the plaintiff to construct the Firewall between the face of the coal seam and the landfill in order to reduce the risk of a fire in the landfill spreading to the coal seam. The EPA has permitted the plaintiff to use contaminated soil - which is usually sourced from excavation sites in and around Melbourne - in the construction of the Firewall. The soil is now known as 'Category C soil' ('Cat C soil'). Prior to 1 July 2007, it was known as 'contaminated soil (low level)' ('LLC soil'). For simplicity, I will use the phrase 'Cat C soil' to also encompass LLC soil.
3 Section 50S of the Environment Protection Act 1970 ('EP Act') requires the payment of a landfill levy for 'prescribed industrial waste' deposited on land ('Levy'). However, that liability does not apply in certain circumstances, including where the waste is 'exempt material' or has a 'direct beneficial reuse and has been consigned for [that] use'.[1]
4 The plaintiff contends that it is not liable to pay the Levy, or, alternatively, that it is liable to pay a discounted Levy, on two bases. The first basis, upon which the plaintiff principally relied, is that its use of the Cat C soil in the Firewall constitutes a 'direct beneficial reuse' ('DBR') as defined in reg 5(1) of the Environment Protection (Industrial Waste Resource) Regulations 2009 ('2009 Regulations')[2] and that it was consigned for that use. If this contention is correct, the plaintiff has not been liable to pay any part of the Levy since the commencement of the 2009 Regulations on 1 July 2009.
5 The plaintiff's second, alternative, basis has two limbs. The first limb is that the exemption that the plaintiff was granted by the EPA on 19 March 2008 ('2008 Exemption') under the Environment Protection (Prescribed Waste) Regulations 1998 ('1998 Regulations') continued in force under reg 48(c) of the 2009 Regulations as a secondary beneficial reuse ('SBR'). The second limb is that the EPA's amendment to the 2008 Exemption on 11 March 2011 to insert an expiry date of 30 June 2011 ('Amendment to the 2008 Exemption') was invalid. As the 2008 Exemption permitted the plaintiff to pay the Levy on five out of eight tonnes of Cat C soil used in the Firewall ('Discounted Levy') instead of paying the Levy on all tonnes of Cat C soil ('Full Levy'), if the plaintiff's alternative argument is correct, it continues to be liable to pay only the Discounted Levy.
6 The plaintiff also contends that Classification No 2011/018 titled 'Classification with Management Options' that the EPA issued with effect from 1 July 2011 ('2011 Classification') - which in essence restricted the off-site use of Cat C soil to treatment or disposal - is invalid.
7 In the period that is relevant to this proceeding, namely from 9 June 2010 until 30 June 2013,[3] the plaintiff made the following payments in respect of the Levy for Cat C soil used in the Firewall:
(a) For the period from 9 June 2010 until 31 March 2011, the plaintiff paid to the EPA Discounted Levy amounts totalling $3,198,821 in accordance with the 2008 Exemption.
(b) For the period from 1 April 2011 until 30 June 2011, the plaintiff paid the amount of $2,379,299 into an account with National Australia Bank ('Designated Account') which was established pursuant to a consent order made by Emerton J on 28 November 2011 ('Emerton J's order').[4] This amount equates to the value of the Discounted Levy payable in accordance with the 2008 Exemption for this period. The parties agreed to the use of the Designated Account pending the resolution of this proceeding.
(c) For the period from 1 July 2011 until 30 June 2013, the plaintiff paid into the Designated Account the amount of $11,513,020 in respect of the Full Levy.
As at 30 June 2013, the balance in the Designated Account was $13,892,319.
8 The plaintiff seeks repayment of the amount of $3,198,821 on the basis that it was paid under a mistake of law. The plaintiff also asserts an entitlement to the amount of $13,892,319 in the Designated Account.
9 The EPA has denied the existence of any mistake of law and has submitted that, even if there were such a mistake, the plaintiff's claims cannot be maintained due to s 20B of the Limitation of Actions Act 1958 ('LA Act'). If that provision applies to all the plaintiff's claims in the proceeding, the plaintiff cannot recover any amount unless it satisfies the Court that such recovery 'would not result in a windfall gain to the [plaintiff].' By counterclaim, the EPA has sought an order that it be paid the amount of $13,892,319 in the Designated Account.
10 For the reasons that follow, I have concluded that:
(a) The Amendment to the 2008 Exemption is invalid because it did not satisfy the requirements of regs 44 and 46 of the 2009 Regulations and therefore the 2008 Exemption continues in force.
(b) The 2011 Classification was not authorised by reg 11 of the 2009 Regulations and is invalid.
(c) The use of Cat C soil in the Firewall constitutes a DBR but the soil was not consigned for use as a DBR.
(d) Subject to a possible exception, s 20B of the LA Act precludes the plaintiff from recovering any amount it paid to the EPA or into the Designated Account. The possible exception relates to the difference between the Full Levy and the Discounted Levy for the period commencing on 1 July 2011.
11 The EP Act, the 1998 Regulations and the 2009 Regulations provide the statutory scheme for the resolution of the issues in this proceeding. Set out below is an overview of the scheme. Specific provisions of the scheme will be described in more detail in those parts of this judgment to which they are relevant.
12 The purpose of the EP Act is 'to create a legislative framework for the protection of the environment in Victoria having regard to the principles of environment protection.'[5] Those principles are set out in ss 1B to 1L and it is the intention of Parliament that in the administration of the EP Act, regard should be given to those principles.[6]
13 The key principle for the purposes of this proceeding is the principle of wastes hierarchy in s 1I of the EP Act. That section provides as follows:
1I Principle of wastes hierarchy
Wastes should be managed in accordance with the following order of preference -
(a) avoidance;
(b) re-use;
(c) re-cycling;
(d) recovery of energy;
(e) treatment;
(f) containment;
(g) disposal.
14 The purpose of the EP Act and the principle of wastes hierarchy are expressly recognised in reg 1 of the 2009 Regulations, which provides as follows:
The objectives of these Regulations are to -
(a) assist industry to implement the principle of wastes hierarchy as set out in section 1I of the Environment Protection Act 1970;
(b) prescribe requirements for assessing, categorising and classifying industrial waste and prescribed industrial waste for the purposes of the Environment Protection Act 1970;
(c) encourage industry to utilise industrial waste as a resource through exempting material from categorisation as prescribed industrial waste where a secondary beneficial reuse is established;
(d) prescribe requirements for the transport and management of prescribed industrial waste including requirements for the tracking of prescribed industrial waste.
Note
The purposes of the Act include the creation of a legislative framework for the protection of the environment in Victoria having regard to the principles of environment protection. One of the principles of environment protection is the principle of wastes hierarchy set out in section 1I of the Act, which provides that the most preferable management option is avoiding waste production, and the least preferable management option is disposal.
15 The EP Act regulates the production, transportation, use and disposal of different forms of waste. The present proceeding concerns only solid industrial wastes. Those wastes have been classified into various categories from time to time. Different restrictions apply to waste depending on the applicable category.
16 Schedule 2 of the 2009 Regulations sets out three 'hazard categories' for industrial waste, namely, Categories A, B and C. In essence, Category A waste comprises dangerous goods such as explosives which generally cannot be disposed of in landfill; Category B waste comprises wastes with high levels of contamination; and Category C waste comprises wastes with low levels of contamination.
17 It was common ground that the soil that the plaintiff has used in the Firewall was Cat C industrial waste.
18 The EPA, which is established by the EP Act, is responsible for administering the EP Act and giving effect to its provisions. Under the EP Act, the EPA can exercise a variety of powers to give effect to the principles of environment protection, including the granting of licences, the issuing of exemptions, the charging of levies and the taking of enforcement action in respect of contraventions of the EP Act.
19 A licence granted under the EP Act may authorise an activity which would otherwise constitute a contravention of the EP Act. Thus, pursuant to s 20 of the EP Act, the EPA may grant a licence for the disposal of waste. A licence issued under the EP Act can contain conditions which regulate the manner in which the licensed activity is conducted.
20 The EPA may grant exemptions which provide dispensation from particular provisions of the EP Act that would otherwise apply.
21 The purpose of levies imposed under the EP Act is not only to raise revenue to fund the EPA's activities but also to discourage activities that are harmful to the environment.
22 The regulations made under the EP Act from time to time set out detailed provisions to give practical effect to the provisions of the EP Act. For example, the regulations prescribe the procedures that must be followed and the forms that must be used for the purposes of particular provisions of the EP Act.
23 Section 20B of the EP Act sets out a procedure for consultation with 'interested parties' - called a 's 20B conference' - to which the EPA may resort if it is of the opinion that this procedure may assist the EPA to resolve any matter under its consideration. Section 20B provides as follows:
20B Conferences
(1) The [EPA] may if it is of the opinion that a conference of persons concerned in any matter under consideration by the [EPA] may assist in a just resolution of the matter, invite all or any of the interested parties to a conference.
(2) All persons invited to attend a conference under this section shall be advised in writing of the time and place at which the conference is to be held.
(3) A conference held under this section shall be presided over by the Chairman or a person nominated by the Chairman for the purpose.
(4) The [EPA] shall take into consideration the discussions and resolutions of any conference under this section and the recommendations of any person presiding at that conference.
24 Part III, div 1 of the EP Act (ss 16 to 19) empowers the Governor in Council, on the recommendation of the EPA, to publish environment protection policies, including State environment protection policies ('SEPP') and waste management policies. Such policies may incorporate a national environment protection measure ('NEPM').
25 As discussed at [3] above, the Levy is imposed by s 50S of the EP Act. That section is in pt IX div 3 of the EP Act and provides as follows:
50S Landfill levy - amount payable
...
(2) The holder of a licence in respect of a scheduled premises which is -
(a) prescribed as a scheduled premises required to pay the landfill levy; and
(b) licensed for the discharge or deposit to land of wastes that are prescribed industrial waste -
must pay to the [EPA] a landfill levy for each tonne of waste that is deposited on to land at the premises.
...
(2AA) The amount of the levy payable under subsection (2) is the amount specified in Schedule E for the relevant category of prescribed industrial waste.
26 The expressions 'scheduled premises', 'waste' and 'industrial waste' in s 50S of the EP Act are defined in s 4(1). As it was common ground that the soil used in the Firewall constituted 'waste' and 'industrial waste', I will not set out the definitions of these terms. It was also common ground that the soil used in the Firewall constituted 'Category C waste not being packaged waste asbestos'. Pursuant to sch E of the EP Act, a landfill levy of $70 per tonne is payable in respect of such waste.
27 The plaintiff pleaded that, while the landfill on the Site constituted 'scheduled premises', the Firewall did not. The plaintiff also contended that the manner in which it used Cat C soil in the Firewall constituted a reuse rather than a 'depositing' of the waste on land at the Site. These issues are discussed at [287] to [291] below.
28 The phrase 'prescribed industrial waste' in s 50S of the EP Act is central to the resolution of the issues in this proceeding. It is defined in reg 5(1) of the 2009 Regulations as follows:
prescribed industrial waste means any industrial waste ... other than industrial waste ... that -
...
(b) has a direct beneficial reuse and has been consigned for use; or
(c) is exempt material; ...
30 In relation to para (b), the issue of whether the use of the Cat C soil in the Firewall 'has a direct beneficial reuse and has been consigned for [that] use' is discussed at [178] to [277] below. In relation to para (c), the question of whether the Cat C soil used in the Firewall is 'exempt material' depends on whether the first limb of the definition of that term in reg 5(1) of the 2009 Regulations is satisfied. As that limb applies to industrial waste 'for which a secondary beneficial reuse is established in accordance with Part 5 [of the 2009 Regulations]', the issue is whether the Amendment to the 2008 Exemption was valid and whether the 2008 Exemp[7]ion continues in force.7 That issue is discussed at [52] to [138] below.
31 Set out below is an overview of the facts which were largely not in dispute. As such, I will not refer to the affidavit or oral evidence upon which the following factual findings are based. Disputed factual matters are discussed in those parts of this judgment to which they are relevant. As will become apparent, I have not been assisted by the disputed expert evidence upon which the parties relied.[8]
32 The plaintiff acquired the Site in 1990 and, on 6 December 1990, it took a transfer of an EPA waste discharge licence ('EPA Licence') to enable it to conduct a landfilling operation at the Site using solid industrial waste. The EPA Licence has been amended from time to time, and the plaintiff continues to hold it.
33 On 8 September 1993, the plaintiff was granted a mining licence for the Site ('Mining Licence'). The Mining Licence required the plaintiff to submit a work plan for approval. In 1995, the plaintiff received approval for its work plan and this approval enabled the plaintiff to conduct an open cut brown coal mining business on the Site. The mining activity has the effect of creating voids within the land at the Site. The voids created by past mining activities are used as the tipping areas for the landfilling. In those voids, the coal seam is exposed.
34 The EPA Licence, as amended on 8 June 1994, and the approved work plan require the plaintiff to construct and maintain the Firewall.[9] The Firewall is a non-combustible barrier of compacted earth between the exposed coal seam and the solid industrial wastes, whose purpose is to prevent any fire spreading from the landfill to the coal seam. The Firewall is progressively built up to match the level of adjacent waste deposition in the landfill. Apart from providing thermal insulation between the landfill and the coal seam, the Firewall provides structural support for a faulted coal face at the south eastern corner of the open cut mine. From 31 August 1998, the EPA Licence permitted the deposit of LLC soil at the landfill on the Site.
35 The Firewall forms a continuous section of the landfill area approximately 700 metres in length, which has been progressively constructed in four areas. The Firewall is constructed in three metre high increments and can only be filled to match the height of the landfill. The EPA Licence initially required the Firewall to be 20 metres in width. On 4 June 2007, the EPA Licence was amended to reduce the required width to 13.5 metres.[10] The Firewall has basal and side compacted clay liners, a leachate collection system, surface water management, and is subject to groundwater monitoring and reporting requirements. The basal liner has a reinforcing geotextile layer and a HDPE membrane.
36 In the period that is relevant to this proceeding, the Firewall has been constructed as an engineered structure, using clean fill, clay and Cat C soil. The process is subject to environmental controls relevant to landfill cells.
37 The process of using Cat C soil in the construction of the Firewall involves spreading, placing and compacting the soil. Apart from the displacing of air, this process does not involve any physical alteration to the Cat C soil, and involves no chemical alteration to that soil. Cat C soil is used as a substitute for clean fill or clay that would otherwise be used in the construction of the Firewall. Clean fill is a valuable resource with competing uses. It would not have been economical to obtain sufficient clean fill or clay to construct the Firewall at a rate that would have permitted the sustainable operation of the landfill.
38 Between 8 June 2010 and the time of the hearing of the proceeding, the only practicable options for the management of Cat C soil were disposal to landfill or use by the plaintiff in the construction of the Firewall. The concentrations and value of the contaminants in the Cat C soil are such that it was not practicable to remove them from the soil. As at the time of the hearing, there were no available facilities at which the Cat C soil could have been treated to remove the contaminants.
39 On 18 April 2000, the EPA granted the plaintiff an exemption under reg 16(1)(a) of the 1998 Regulations ('2000 Exemption') which permitted it to use Cat C soil in the construction of the Firewall. The 2000 Exemption described the plaintiff as 'the waste reuser'.[11] By letter dated 18 April 2000, the EPA advised the plaintiff that Cat C soil that was used in the Firewall in accordance with the 2000 Exemption would not be subject to the Levy. The 2000 Exemption was extended a number of times and expired on 14 March 2005. Between 15 March 2005 and 18 March 2008, the plaintiff was not authorised to deposit Cat C soil into the Firewall.
40 As stated at [5] above, on 19 March 2008 the EPA granted the plaintiff the 2008 Exemption which permitted the plaintiff to use Cat C soil in the Firewall and to pay the Disc[12]nted Levy.12 The plaintiff continued to pay the Full Levy for Cat C soil disposed of at the landfill on the Site. Clause 1.2 of the 2008 Exemption required that the 2008 Exemption be reviewed three years after the date of its issue, on 19 March 2011. The relevant terms of the 2008 Exemption are set out at [62] below.
41 As stated at [4] above, the 2009 Regulations came into effect on 1 July 2009. They introduced the concepts of DBR and SBR which are discussed in more detail later in this judgment. For present purposes, I note that a key difference between them is that an SBR involves prior treatment of contaminated soil whereas a DBR does not.
42 When the 2009 Regulations commenced, the 2008 Exemption was still in operation. Pursuant to reg 48(c), the 2008 Exemption was deemed to continue in effect as a 'secondary beneficial reuse authorisation' ('Deemed SBR authorisation').
44 On 7 January 2011, the plaintiff delivered to the EPA an 'Application for Exemption for SBR' ('Application for SBR'). This was effectively an application for a new SBR authorisation, which if granted, would completely exempt the plaintiff from the liability to pay the Levy in respect of Cat C soil used in the Firewall. The EPA considered the Application for SBR simultaneously with the 2008 Exemption Review. The process by which it did so is described at [72] to [84] below.
45 As discussed at [5] above, on 11 March 2011 the EPA issued the Amendment to the 2008 Exemption which inserted an expiry date of 30 June 2011. The Amendment to the 2008 Exemption is set out at [68] below. The plaintiff's challenge to the validity of the Amendment to the 2008 Exemption is discussed at [52] to [138] below.
46 On 8 April 2011, the EPA made the following four decisions:
(b) a decision to amend the EPA Licence with effect from 1 July 2011 to make the Firewall a 'landfill cell' - with the consequence that the Full Levy was payable;
(c) a decision to allow the Amendment to the 2008 Exemption to operate according to its terms, that is, to allow it to expire on 30 June 2011 ('Confirmation of Amendment to the 2008 Exemption'); and
(d) a decision to publish a draft classification in relation to management options for the use of contaminated soil pursuant to reg 11 of the 2009 Regulations.
47 Initially, the plaintiff sought to impugn the EPA's decision to refuse the Application for SBR. However, during the hearing the plaintiff amended its statement of claim to abandon this part of its claim.
48 On 21 April 2011, the plaintiff made an application for review to the Victorian Civil and Administrative Tribunal ('VCAT') in respect of the amendment to the EPA Licence. As a result of the application, the amendment has not yet commenced operation. Neither the amendment nor the pending review by VCAT is material to this proceeding.
51 Prior to 2006, the Levy rate in the EP Act was $10 per tonne of prescribed industrial waste deposited on land. In 2006, the EP Act was amended to increase the Levy rate to $50 per tonne. In 2007, the EP Act was further amended to increase the Levy to $70 per tonne. The Levy is payable to the EPA quarterly in arrears.[13]
52 It will be recalled from [30] above that if the Amendment to the 2008 Exemption is invalid and the 2008 Exemption remains in force, the Cat C soil used in the Firewall will constitute 'exempt material' for the purposes of the definition of 'prescribed industrial waste' in reg 5(1) of the 2009 Regulations. Subject to the issue discussed at [278] to [286] below, and noting the discussion at [63] to [64] below, the effect of this would be that the plaintiff is liable to pay the Discounted Levy in accordance with the terms of the 2008 Exemption.
Relevant provisions of the 1998 and 2009 Regulations
53 Regulation 5 of the 1998 Regulations defined 'prescribed industrial waste' by reference to reg 7. As it was common ground that the Cat C soil used in the Firewall constituted 'prescribed industrial waste' for the purposes of the 1998 Regulations, I will not set out the definition of that term. Regulation 5 defined 'waste reuser' as follows:
waste reuser means an occupier of premises where the use of prescribed industrial waste as a direct input occurs, without prior treatment or reprocessing, into the manufacture of a product.
54 The 1998 Regulations contained the following provisions relating to the granting of exemptions and the conditions that could be imposed on exemptions:
16 Exemption to certain persons
(1) The [EPA] may -
(a) exempt a person or class of persons from complying with section 19A(3A)[14] or 20(3A)[15] of the Act; ...
...
20 Conditions for exemptions
(1) If the [EPA] exempts a person under this Part the [EPA] must specify the period for which the exemption applies and may impose conditions relating to any or all of the following -
(a) characteristics of the prescribed industrial waste for which the exemption has effect ...;
(b) the person, premises or industries from which the prescribed industrial waste may originate;
(c) the person, premises or industries permitted to receive the prescribed industrial waste;
(d) any sampling, analysis, monitoring and reporting requirements to be undertaken by the prescribed industrial waste producer, waste receiver, waste reuser, waste recycler or recoverer of energy;
(e) any measures that are required of the prescribed industrial waste producer, waste transporter, waste receiver, waste reuser, waste recycler or recoverer of energy to ensure that the management of the prescribed industrial waste is not likely to result in an unacceptable risk of damage to the environment;
(f) any other matters required of the prescribed industrial waste producer, waste transporter, waste receiver, waste reuser, waste recycler or recoverer of energy to ensure that the exemption is not likely to result in an unacceptable risk of damage to the environment;
(g) a requirement to notify the [EPA] of any changes relating to the matters and information relating to the exemption.
55 Although the 2009 Regulations repealed the 1998 Regulations with effect from 1 July 2009, the 2008 Exemption continued in force after that date by virtue of reg 48(c) of the 2009 Regulations. Regulation 48(c) provides as follows:
Despite the revocation of the Environment Protection (Prescribed Waste) Regulations 1998 -
...
(c) an exemption granted under Part 5 of those Regulations continues to have effect as a secondary beneficial reuse authorisation for the purposes of Part 5 of these Regulations.
56 In the absence of reg 48(c) of the 2009 Regulations, which deemed the 2008 Exemption to have effect as an SBR authorisation, the use of the Cat C soil in the Firewall would not have been an SBR authorisation. That is because the definition of 'secondary beneficial reuse' in reg 5(1) of the 2009 Regulations - which is set out at [181] below - required the soil to undergo treatment or processing prior to use.
57 Regulations 43 to 46 of the 2009 Regulations deal with imposing conditions on, and amendment and revocation of, 'notifications' which, for present purposes, include SBR authorisations. It was common ground between the parties that the 2009 Regulations applied to the 2008 Exemption while it continued to have effect under reg 48(c) as a Deemed SBR authorisation.
58 Regulation 43 of the 2009 Regulations provides as follows:
(1) If the [EPA] authorises a secondary beneficial reuse notification under this Part, the [EPA] must specify the period for which the notification applies.
(2) The [EPA] may impose conditions relating to one or more of the following matters on a notification authorised under regulation 41 -
(a) characteristics of the material for which the notification has effect ...;
(b) the prescribed industrial waste producer, premises or industries from which the material may originate;
(c) the person, premises or industries permitted to receive the material;
(d) any sampling, analysis, monitoring and reporting requirements to be undertaken by the prescribed industrial waste producer, waste receiver, reuser, or recycler of the material;
(e) any measures that are required of the prescribed industrial waste producer, transporter, waste receiver, reuser, or recycler of the material to ensure that the management of the material is not likely to result in an unacceptable risk of damage to the environment;
(f) any other condition that the [EPA] considers appropriate. ...
59 Regulation 44 of the 2009 Regulations provides as follows:
(1) The [EPA] may amend any notification authorised under this Part if the [EPA] is satisfied that amending the notification -
(a) is necessary or desirable in the light of changes to the circumstances that existed at the time the [EPA] authorised the notification; and
(b) will not result in an unacceptable risk of harm to the environment.
(2) If the [EPA] decides to amend a notification it must -
(a) notify in writing the prescribed industrial waste producer or waste receiver whose notification will be amended within 7 days after deciding to amend; and
(b) specify in the written notice to the prescribed industrial waste producer or waste receiver the date and time from which the amendment takes effect.
60 Regulation 45 of the 2009 Regulations provides as follows:
(1) The [EPA] may revoke any notification authorised under this Part if it is satisfied that -
(a) any information supplied by the prescribed waste producer or waste receiver was false or misleading; or
(b) any other information taken into consideration by the [EPA] has changed and as a consequence the notification is likely to result in an unacceptable risk of harm to the environment; or
(c) any condition in relation to that notification under regulation 43 has been contravened; or
(d) the prescribed industrial waste producer or waste receiver has been found guilty of one or more relevant offences ...; or
(e) the activities in respect of which the notification related have ceased.
(2) If the [EPA] decides to revoke a notification, the [EPA] must -
(a) notify in writing the prescribed industrial waste producer or waste receiver whose notification will be revoked within 7 days after deciding to revoke; and
(b) specify in the written notice to the prescribed industrial waste producer or waste receiver the date and time from which the revocation takes effect.
61 Regulation 46 of the 2009 Regulations provides as follows:
(1) Before amending or revoking a notification authorised under this Part, the [EPA] -
(a) must give a written notice to the prescribed industrial waste producer or waste receiver whose notification the [EPA] intends to amend or revoke that -
(i) gives details of the action the [EPA] intends to take; and
(ii) gives the reasons why the [EPA] intends to take that action; and
(iii) invites the prescribed industrial waste producer or waste receiver whose notification the [EPA] intends to amend or revoke to comment on the [EPA's] proposed course of action within the time specified in the notice; and
(b) must consider any comments that are made by the prescribed industrial waste producer or waste receiver whose notification the [EPA] intends to amend or revoke within the time specified.
(2) The [EPA] must not specify a period of less than 7 days under subregulation (1)(a)(iii).
The terms of the 2008 Exemption and the Amendment to the 2008 Exemption
62 The 2008 Exemption that was issued on 19 March 2008 relevantly provided:
NOTICE OF EXEMPTION
...
WHEREAS
(1) The [EPA] has received an application from Maddingley Brown Coal Pty Ltd ('the waste reuser') for exemption from complying with sections 19A[16] and 20[17] of the [EP] Act and regulation 16(1)(a)[18] of the [1998] Regulations ('the application'); and
(2) The application relates to the reuse of Category C contaminated soil at a landfill at premises situated at East Maddingley Road, Bacchus Marsh ('the premises'); and
(3) The [EPA] has determined the application in accordance with the [1998] Regulations;
NOW TAKE NOTICE that the [EPA] pursuant to regulations 16(1)(a) and 20[19] of the [1998] Regulations HEREBY EXEMPTS Maddingley Brown Coal Pty Ltd from complying with sections 19A and 20 of the [EP] Act and regulation 16(1)(a) of the [1998] Regulations subject to the conditions [below].
...
...
1.2 This exemption will be reviewed in 3 years from the date of issue.
1.3 Category C soils ... may be accepted for reuse in the construction of the firewall in the areas 1, 2, 3 and 4 as delineated in the attached 'Plan of Premises' being part of Maddingley Brown Coal Pty Ltd, Bacchus Marsh.
...
1.6 Prescribed industrial waste accepted at the premises must be transported in accordance with the [1998 Regulations] or as amended.
1.7 Maddingley Brown Coal Pty Ltd must apply the prescribed industrial waste landfill levy in accordance to the requirements of the [EP] Act for 5 of every 8 tonnes of Category C soils reused in areas 1, 2, 3 and 4.
...
2.4 Maddingley Brown Coal must sample the incoming waste at a rate of at least one sample per 500m3, or one sample per batch where total volume is less than 500m3. The samples must then be analysed for total and leachable concentrations to ensure compliance with the Category C classification.
63 The parties conducted this proceeding on the basis that the 2008 Exemption was valid under reg 16 of the 1998 Regulations when it was made on 19 March 2008 and that, after 1 July 2009, it continued to have effect as a Deemed SBR authorisation under reg 48(c) of the 2009 Regulations. It was not part of the plaintiff's case that the status of the 2008 Exemption as a Deemed SBR authorisation meant that all Cat C soil used in the Firewall after 1 July 2009 was 'exempt material' and therefore not 'prescribed industrial waste', with the consequence that no part of the Levy was payable. Both parties proceeded on the basis that, after the 2008 Exemption became a Deemed SBR authorisation, all its clauses had continuing effect according to their terms, including the obligation in cl 1.7 requiring payment of the Discounted Levy.
64 The approach that the parties adopted meant that they did not address the relationship between cl 1.7 of the 2008 Exemption and s 50S of the EP Act. That section provides that the levy specified in sch E must be paid for each tonne of prescribed industrial waste that is deposited on to land at a scheduled premises. On the other hand, cl 1.7 of the 2008 Exemption provides that the plaintiff must 'apply the prescribed industrial waste landfill levy in accordance to the requirements of the [EP] Act for 5 of every 8 tonnes of Category C soils reused in [the Firewall].' One possible way in which cl 1.7 could be reconciled with s 50S is to construe cl 1.7 as treating only five of every eight tonnes of Cat C soil used in the Firewall as prescribed industrial waste. However, I do not need to form a final view on this matter. This is because, given the manner in which the parties conducted the proceeding, the validity of cl 1.7 or any other term of the 2008 Exemption is not an issue for determination in this proceeding.
65 It is apparent from the terms of the 2008 Exemption that it did not comply with the requirement in reg 20(1) of the 1998 Regulations that it 'specify the period for which the exemption applies'. Consistent with what I have already said at [63] to [64] above, the parties have conducted this proceeding on the basis that this non-compliance did not invalidate the 2008 Exemption.
66 On 30 July 2008, in response to an enquiry from the plaintiff, the EPA informed the plaintiff in writing that the review required by cl 1.2 of the 2008 Exemption 'does not limit the life of [the 2008] Exemption to 3 years but will ensure amongst other things that the exemption's conditions are being complied with.'
67 On 25 August 2009 the EPA wrote to the plaintiff to confirm that the 2008 Exemption continued to have effect under the 2009 Regulations as an SBR authorisation for the purposes of pt 5 of those regulations. It is common ground between the parties that this outcome resulted from reg 48(c) of the 2009 Regulations.
68 The Amendment to the 2008 Exemption that was made on 11 March 2011 relevantly provided:
NOTICE OF AMENDMENT OF [SBR] NOTIFICATION
...
NOW TAKE NOTICE that the [EPA] pursuant to regulation 44[20] of the [2009] Regulations HEREBY AMENDS the exemption issued on 19 March 2008 ... as shown [below].
...
ADDITIONAL CONDITION
1.8 This exemption will expire on the 30th June 2011.
Factual issue: Procedure used by EPA for Amendment to the 2008 Exemption
69 On 3 December 2010, the EPA wrote to the plaintiff to advise that it would conduct the 2008 Exemption Review as required by cl 1.2 of the 2008 Exemption. The EPA's letter stated that, although there was no legislative requirement to advertise the review, it would do so 'due to interest from third parties.' The letter invited the plaintiff to submit its comments by 21 January 2011 and stated that the plaintiff could also meet with the EPA to discuss the review. On the same day, the EPA wrote in similar terms to a number of organisations with an interest in the waste industry.
70 Between 24 December 2010 and 21 January 2011, the EPA received written submissions from a number of third parties and from the plaintiff. According to a summary of the submissions that the EPA published on its website on 25 February 2011, the EPA received 12 submissions, five of which supported the continuation of the 2008 Exemption in some form and seven of which opposed it. A copy of the summary was provided to the plaintiff on 25 February 2011 and to the submitters on 28 February 2011.
71 The plaintiff made a seven page submission dated 21 January 2011 ('Plaintiff's Review Submission') in which it:
(a) stated that it 'appreciates the requirement for a public review and consultation regarding the renewal' of the 2008 Exemption;
(b) submitted that the EPA should renew the 2008 Exemption for a further period of three years;
(c) stated that its use of Cat C soil in the Firewall was 'the highest possible resource recovery option under the waste[s] hierarchy (other than avoidance, which [was] out of [its] control)' and enabled the Government 'to achieve its policy objective of diverting Prescribed Industrial Waste from Landfill';
(d) set out the environmental benefits of using Cat C soil in the Firewall, including: providing a thermal barrier between the coal face and the landfill; providing a more desirable use than landfill disposal; and reducing the use of clean virgin clay and thus preserving the clay for higher value uses;
(e) submitted that no Levy should be payable because the continuing operation of the 2008 Exemption as an SBR rendered the Cat C soil used in the Firewall exempt material;[21] and
(f) reserved the right to treat its use of Cat C soil in the Firewall as a DBR.
72 The Application for SBR that the plaintiff delivered to the EPA on 7 January 2011[22] was seven pages in length and was very similar to the Plaintiff's Review Submission. It was accompanied by detailed technical supporting documents. For the purposes of the 2009 Regulations, the Application for SBR was a notification of SBR seeking the EPA's approval under reg 41. Regulation 41(2) required the EPA to decide whether to grant the Application for SBR within 28 days of the EPA's confirmation that it had received the application. On 8 February 2011, the plaintiff agreed in writing to extend the deadline to 1 March 2011. That agreement was made under s 67A of the EP Act which effectively defers the statutory consequences of the expiration of a time limit to the expiration of the extended time limit.
73 On 15 January 2011, the EPA wrote to the plaintiff stating that, as
(a) the EPA's decision could conceivably involve an amendment to the 2008 Exemption; and
(b) if so, the seven day period for notice and invitation to comment in reg 46 of the 2009 Regulations would bring the deadline for the EPA to make a decision to 21 February 2011,
the plaintiff should provide any further information and submissions on or before 18 February 2011.
74 On 18 February 2011, the plaintiff provided two letters to the EPA. The first letter was a six page response to issues that the EPA had raised about the Application for SBR. The second letter was a five page response to the summary of submissions to which reference was made at [70] above. On the same day, the plaintiff emailed to the EPA a letter dated 17 February 2011 prepared by Environmental Resources Management Australia Pty Ltd. That letter stated that, at that time, the only available options for the Cat C soil used in the Firewall were disposal or reuse.
75 The EPA decided to consider the Application for SBR as part of the 2008 Exemption Review. It also decided to conduct a s 20B conference[23] to assist it in the decision-making process regarding the 2008 Exemption Review and the Application for SBR. The EPA advised the plaintiff of these decisions on 25 February 2011.
76 On 25 February 2011, the plaintiff and the EPA entered into a further agreement under s 67A of the EP Act to extend the deadline for the making of a decision on the Application for SBR until 15 April 2011. Paragraph 6 of the agreement stated that 'EPA has agreed that the [2008 Exemption] will continue pending its decision on whether to [grant the Application for SBR].' The agreement dated 8 February 2011 did not contain a similar statement. Neither agreement gave any indication that an expiry date would be inserted in the 2008 Exemption prior to the EPA's decision on whether to grant the Application for SBR.
77 In a letter to the plaintiff dated 25 February 2011, the EPA stated that the 2008 Exemption 'continues to operate - meaning that the extension [of time to 15 April 2011] does not involve any prejudice to [the plaintiff].' The letter also stated that '[a]t the completion of the process, EPA will determine ... whether to continue, amend or revoke the [2008 Exemption] or authorise a new [SBR] ...'
78 On 28 February 2011, the EPA sent a letter to each of the persons that had made submissions for the 2008 Exemption Review and advised them that it would 'be convening a s 20B conference of all submitters within the next few weeks.' The letter stated: that the submissions that the EPA had received had raised 'a number of complex issues from various perspectives in relation to the use of Category C soil in [the plaintiff's] firewall'; that the EPA wished 'to hear further from all submitters'; that the local council and the Department of Primary Industries would also be invited to attend the s 20B conference; and that the s 20B conference would be conducted by an independent chairman. The s 20B conference was scheduled for 16 March 2011.
79 Without giving notice to the plaintiff that it proposed to amend the 2008 Exemption prior to the s 20B conference, on 11 March 2011, the EPA decided to make the Amendment to the 2008 Exemption. The EPA's decision was based on recommendations in an internal briefing note dated 10 March 2011 ('10 March 2011 Briefing Note') which relevantly stated:
[Condition 1.2] indicated that the exemption would operate until 19 March 2011, but provided no certainty that it would continue after that date.
A decision following the review called for by condition 1.2 will not be made until 15 April 2011, i.e., after 19 March 2011, so a short extension of the period of operation is required.
As the review process has been extended, involving a s 20B conference, a decision following the review will not be made by 19 March 2011. Hence a short extension of [the] operation period is required and must be granted before 19 March 2011.
That the [EPA] ... amend the secondary beneficial reuse authorisation held by [the plaintiff] to clarify that its period of operation extends until 30 June 2011 ...
Conceptually, three levy exemption rate options are available for EPA's SBR decision:
(1) revoke (and not replace) the existing SBR, thus ending the exemption entirely;
(3) authorise an SBR that continues the three-eighths exemption.
Given those options, the expiry date recommended is 30 June 2011, for the following reasons.
• If EPA's decision is option (1) or (2), the further 3.5 months' duration provides natural justice to [the plaintiff], allowing it (and relevant potential customers) to adjust to the total loss of exemption on 30 June.
• If the decision is option (3), the extension would provide the necessary bridging period between the existing SBR and the commencement date of the new SBR.
Environment Protection (Industrial Waste Resource) Regulations 2009. Regulation 43(1) states that the [EPA] must specify the period for which the secondary beneficial reuse notification applies.
80 A copy of the Amendment to the 2008 Exemption was sent to the plaintiff's solicitor on 11 March 2011 under cover of an email stating: 'Attached as foreshadowed is an amendment to your client's current SBR.'
81 The s 20B conference took place as scheduled on 16 March 2011 and was chaired by Mr Timothy Offor. Nineteen people attended, including the plaintiff's managing director, general manager and solicitor. The EPA provided to the attendees a set of materials about the 2008 Exemption and relevant environmental and regulatory issues. Mr Offor prepared a report dated 6 April 2011 ('Report on the s 20B conference') in which he stated that the plaintiff responded to questions and issues raised in submissions and also to additional questions, concerns and issues raised. The Report on the s 20B conference summarised the issues raised in the submissions and at the conference and set out the following relevant conclusions:
The key points of difference hinged around interpretation of some key issues relating to [the] SBR, in particular:
▪ Whether the [plaintiff's] use of the Category C [soil] involves 'treatment' or 'processing' as defined under the regulations;
▪ Whether the [plaintiff's] use of Category C [soil] does in fact constitute a SBR; and
▪ Whether EPA Victoria has the ability to apply a fractional landfill levy.
There appear to be strong economic arguments both for the continuing SBR (in particular for [the plaintiff] and its customers) and against continuing the SBR (for the wider land fill and waste treatment industry). Whatever EPA's decision, there will be unhappy parties. However, if the full exemption from the landfill levy as sought by [the plaintiff] is issued, the negative factors currently claimed by other operators and described as 'market distortions' could be further exacerbated. Consequently, consideration of these market issues is recommended prior to making a decision, if EPA Victoria is of a mind to continue the SBR.
82 As stated at [46] above, on 8 April 2011, the EPA made four separate decisions, namely, a decision to refuse the Application for SBR, which is not the subject of this proceeding; a decision to amend the EPA Licence, which is also not the subject of this proceeding; the Confirmation of Amendment to the 2008 Exemption, which is discussed at [130] to [132] below; and a decision to publish a draft classification, which is discussed at [139] to [177] below.
83 The decisions referred to at [82] above were based on recommendations in an internal briefing note dated 7 April 2011 ('7 April 2011 Briefing Note'). That briefing note set out reasons for its recommendations. The reasons for the recommendations to amend the EPA Licence and to publish a draft classification were set out in separate parts of the 7 April 2011 Briefing Note. Detailed reasons were also provided for the recommendation to refuse the Application for SBR. However, separate reasons were not provided for the recommendation to allow the Amendment to the 2008 Exemption to operate according to its terms and it is not clear which, if any, of the reasons for the recommendation to refuse the Application for SBR were intended to apply also to the recommendation to allow the Amendment to the 2008 Exemption to operate according to its terms. For present purposes, it is worth noting the following statements in the 7 April 2011 Briefing Note:
(a) [the plaintiff's] use of Cat C soil in the construction of the firewall:
...
Rationale for Recommendations
...
...
Reuse or disposal
...
The [NEPM] and SEPP - preferred management options for contaminated soil
...
84 The EPA informed the plaintiff of the Confirmation of Amendment to the 2008 Exemption by letter dated 8 April 2011. That letter relevantly stated:
A. Decisions in relation to the SBR review and notification
The [EPA] has decided as follows:
...
...
B. Rationale for the decisions
...
This decision is expressed in terms that make it self-explanatory.
85 The plaintiff relied on two cases in support of its argument that the 2008 Exemption was not amended, but revoked.[25] The first case was Pearce v City of Coburg,[26] in which the Court was required to decide whether the City of Coburg was empowered to terminate a permit it had granted by rescinding the original motion to grant the permit instead of revoking the permit pursuant to s 24 of the Town and Country Planning Act 1961. Under that section, in limited circumstances, a council could revoke a permit after making a recommendation to the relevant Minister and receiving the Minister's approval. Starke J held that there were clear indications in s 24 that the legislature intended to lay down an 'exclusive code for the revocation of permits by a council.'[27] One of these indications was the inclusion of a right to compensation in s 24, which could otherwise be bypassed by a council. A second indication was that if a council terminated a permit by any other means, it would be giving itself a power which s 24 only provided if authorised by the Minister.[28] His Honour held that the rescission resolution was void.
86 The second case was McEachern v Minister for Energy and Resources, and Ports,[29] in which the plaintiff challenged the validity of four orders made by the Minister for Energy and Resources, and Ports under the Fisheries Act 1995. That Act permitted the Minister to make, revoke and amend orders in respect of fisheries. The power of revocation was unrestricted, but the power of amendment was subject to additional restrictions in some circumstances. One of the bases for challenge was that the orders were invalid on their terms, as they purported to be fresh orders but effectively involved an amendment to a set of corresponding orders made in respect of the same fisheries. The first set of orders was revoked on the same day as the impugned orders were made. The Minister had not complied with the procedure for amending an existing order. It was argued that there was no power in the Act to revoke an order and then make a new order in respect of the same fishery, and that the amendment procedure ought to have been followed.
87 Pagone J found that the statutory scheme allowed the Minister to make orders which were designed to have a substantial measure of permanency and not be capable of easy amendment because they dealt with valuable property rights.[30] The Minister was not entitled to use the revocation power together with the power to make an order, to bring about an amendment.[31] Pagone J considered the substance of the two sets of orders, finding that they bore substantial resemblance to each other and their variations could easily be detected. The timing of the revocation and issue of new orders, and the correspondence leading up to those events, were consistent with a finding that the Minister's actions amounted to an amendment.[32] The impugned orders were held to be invalid.
88 Project Blue Sky Inc v Australian Broadcasting Authority[33] is relevant to the plaintiff's submission that the Amendment to the 2008 Exemption was invalid because the EPA failed to comply with the mandatory procedures in reg 46 of the 2009 Regulations.[34] In that case, the High Court held that an act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect.[35] Non-compliance will not invalidate an exercise of power unless a legislative purpose can be discerned to invalidate any act that fails to comply with the condition. The existence of such a purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.[36] This approach was said to be preferable to the traditional approach of the courts, which was to draw a distinction between acts done in breach of an essential preliminary to the exercise of a statutory power or authority (a mandatory requirement) and acts done in breach of a procedural condition for the exercise of a statutory power or authority (a directory requirement).[37] The better test for determining the issue of validity is to ask 'whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.'[38]
89 Minister for Aboriginal Affairs v Peko-Wallsend Ltd[39] is relevant to the plaintiff's submission that the Amendment to the 2008 Exemption was vitiated by the taking into account of irrelevant considerations.[40] In that case, the High Court set out the principles for establishing whether a decision-maker has taken into account irrelevant considerations. The factors which a decision-maker is bound to consider in making a decision are determined by construction of the statute conferring power to make that decision. If those factors are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the statute. If the statute confers a discretion which is in its terms unconfined, the factors that may be taken into account in the exercise of that discretion are also unconfined, except to the extent that they are impliedly limited by the subject-matter, scope or purpose of the statute.[41]
90 To successfully impugn the EPA's decision on the ground that it took into account one or more irrelevant considerations, the plaintiff must demonstrate three things. First, that the allegedly irrelevant considerations were actually taken into account. Secondly, that the taking into account of the considerations was prohibited by the relevant statutory provisions. Thirdly, that the relevant statutory provisions must have the effect that taking the considerations into account will invalidate the decision.[42] An irrelevant consideration may be so insignificant that taking it into account will not invalidate a decision.[43]
91 The plaintiff also submitted that the Amendment to the 2008 Exemption was vitiated by an improper purpose.[44] Acting with an improper purpose involves exercising a power for a purpose which is foreign to the purpose for which that power was conferred.[45] In order to make out an allegation of improper purpose, evidence that the decision-maker actually had that improper purpose for making the impugned decision is required.[46] However, the decision-maker need not intend to act with an improper purpose.[47] An improper purpose will not be lightly inferred, and only where the evidence cannot be reconciled with the proper exercise of the power.[48] As with irrelevant considerations, it is not necessary that an improper purpose be the sole purpose. However, if an impugned decision is made for multiple purposes, the presence of an improper purpose will not invalidate the decision unless the decision would not have been made but for the improper purpose, in other words that the improper purpose was a 'substantial' purpose.[49]
92 The plaintiff submitted that although the Amendment to the 2008 Exemption purported to be an amendment, in substance it was a revocation. As a precondition to the exercise of the power to revoke the 2008 Exemption, the EPA was required to be satisfied of one of the matters listed in regs 45(1)(a)-(e) of the 2009 Regulations. In the plaintiff's submission, the evidence supports a finding that the EPA was not satisfied - and could not be satisfied - of any of those matters and therefore no power to revoke the 2008 Exemption was enlivened.
93 The plaintiff submitted that even if the Amendment to the 2008 Exemption was not a revocation but an amendment, the only source of power of amendment that was available was reg 44 of the 2009 Regulations. According to the plaintiff, reg 20 of the 1998 Regulations was no longer in force and reg 43 only applied to an actual SBR authorisation and did not extend to a Deemed SBR authorisation. The plaintiff contended that the EPA was not entitled to exercise the amendment power in reg 44, since it was a precondition to the exercise of that power that the amendment was necessary or desirable in the light of changes to the circumstances that existed at the time it authorised an SBR (that is, at the time the 2008 Exemption was granted). The EPA's opinion as to whether such a change in circumstances had occurred was said to be irrelevant. According to the plaintiff, there had been no relevant change to those circumstances, and in particular, no change to the manner in which the plaintiff used Cat C soil in the Firewall.
94 The plaintiff also submitted that irrespective of whether the Amendment to the 2008 Exemption constituted a revocation or an amendment, the EPA did not comply with the procedures contained in reg 46 of the 2009 Regulations for amendment or revocation. This is because reg 46 contains preliminary steps to the exercise of the power to revoke or amend a Deemed SBR authorisation such that non-compliance rendered any exercise of power invalid. Accordingly, so it was said, the 2008 Exemption continues to apply - in accordance with its terms as at 11 March 2011, including the entitlement to pay the Discounted Levy - as a Deemed SBR authorisation. The plaintiff contended that the 2008 Exemption is unaffected by the 2011 Classification.
95 The plaintiff also contended that the EPA had regard to the following irrelevant considerations in making the Amendment to the 2008 Exemption:
(a) the Victorian Government's decision to increase landfill levies;
(b) the effect that the Amendment to the 2008 Exemption might have on landfill levy revenue generally;
(c) the way in which the EPA could apply any additional funds collected as a consequence of the amendment;
(d) whether the contaminants in the Cat C soil must be valuable or beneficial to enable a reuse. This consideration was said to lead the EPA to misdirect itself as to the proper application of the 2009 Regulations because the regulations deal with waste (such as contaminated soil) rather than the contaminants in the waste;
(e) the 'flow of money' - from a waste producer to the plaintiff for receipt of Cat C soil - as a factor supporting the conclusion that the use of contaminated soil in the Firewall is 'disposal' rather than 're-use'; and
(f) the fact that the Firewall required engineering controls to ensure environmental protection.
96 The plaintiff further submitted that the EPA misdirected itself as to the proper application or interpretation of the legislative framework, particularly by 'elevating' the 'disposal' of waste and the 'treatment' of waste above the 're-use' of waste. The EPA's application of the National Environment Protection (Assessment of Site Contamination) Measure 1999 ('1999 NEPM') was said to lead it to the incorrect conclusion that 'on-site' treatment of contaminated soil is to be preferred to 'off-site' treatment when neither the 2009 Regulations nor the wastes hierarchy distinguish between on-site and off-site treatment.
97 The plaintiff also submitted that the Amendment to the 2008 Exemption was made for an improper purpose,[50] namely to seek to ensure that the plaintiff paid the Full Levy rather than the Discounted Levy, thereby increasing the EPA's landfill levy revenue. The plaintiff also contended that the Amendment to the 2008 Exemption was unreasonable in the Wednesbury sense.[51]
98 The EPA submitted that the Amendment to the 2008 Exemption constituted an amendment rather than a revocation, and that it was authorised by reg 44 of the 2009 Regulations read together with reg 43(2)(f).
99 According to the EPA, the prevailing circumstances rebut the plaintiff's assertion that the 2008 Exemption was intended to be revoked, including that the EPA had not yet made a decision in respect of the Application for SBR and whether the 2008 Exemption would continue beyond 30 June 2011.
100 The EPA contended that the procedure in reg 46 of the 2009 Regulations was followed in substance through the s 20B conference mechanism that the EPA adopted for the 2008 Exemption Review, and that this mechanism provided the plaintiff an equivalent process and the same protections as reg 46.
101 The EPA denied that the Amendment to the 2008 Exemption involved the taking into account of irrelevant considerations, as it was issued for the following reasons:
(a) to allow sufficient time to convene the s 20B conference, and for the EPA to consider the discussions and findings of that conference;
(b) to remove any uncertainty about whether the 2008 Exemption remained in force after 19 March 2011;
(c) to allow for the 2008 Exemption to continue to operate while the EPA completed the 2008 Exemption Review; and
(d) to coincide with the end of a quarterly levy calculation period specified under the EP Act.
102 The EPA also emphasised that the plaintiff's allegation that the Amendment to the 2008 Exemption was made for the improper purpose of increasing EPA revenue ought to have been put to the EPA's witnesses and was not. Moneys raised by the EPA from the Levy are paid into a fund entitled 'Environment Protection Fund', and must be used for the purposes of environment protection.
103 The EPA submitted that it did not misdirect itself with regard to the application of the wastes hierarchy in s 1I of the EP Act, and maintained that the use of Cat C soil in the Firewall is not a 're-use' but rather a 'disposal'.
Decision on the validity of the Amendment to the 2008 Exemption
Amendment to the 2008 Exemption was an unauthorised amendment
104 In my opinion, viewed objectively, the Amendment to the 2008 Exemption constitutes an amendment.
105 The title of the Amendment to the 2008 Exemption states that it is an amendment under reg 44 of the 2009 Regulations. In form, and in substance, it is an amendment because it comprises the insertion of an additional cl 1.8 in the 2008 Exemption rather than the abrogation of the instrument as a whole.
106 It is true that the effect of the Amendment to the 2008 Exemption was to cause the 2008 Exemption to expire on 30 June 2011. However, if the Amendment to the 2008 Exemption was intended to be a revocation, there would have been no need to make the expiration of the exemption prospective. The revocation could have been expressed to operate immediately. The fact that the expiration date that was inserted in the 2008 Exemption was nearly four months after the date that the Amendment to the 2008 Exemption was made and the fact that the word 'expire' was used rather than the word 'revoke' support the conclusion that the Amendment to the 2008 Exemption constitutes an amendment.
107 The cases upon which the plaintiff relied, namely Pearce and McEachern, are not inconsistent with the above analysis. Those cases emphasise that whether a decision constitutes a revocation or an amendment depends on the substance and effect of the decision considered in the context of the relevant legislation when read as a whole.
108 Having determined that the Amendment to the 2008 Exemption constitutes an amendment, it is now necessary to consider the scope of reg 44 of the 2009 Regulations and to examine whether the amendment was authorised by that regulation.
109 In my opinion, the meaning of the phrase 'necessary or desirable in the light of changes to the circumstances that existed at the time the [EPA issued the 2008 Exemption]' in reg 44(1)(a) of the 2009 Regulations must be sufficiently flexible to enable the EPA to make amendments that seek to give effect to the purposes of the 2009 Regulations and the EP Act. There is nothing in reg 44(1) that requires that the above words be given a narrow meaning. In particular, there is nothing to indicate that the phrase 'changes to the circumstances' is confined to changes in the circumstances of the person in respect of whom a notification such as the 2008 Exemption was authorised. Regulation 44(1)(a) refers to changes in circumstances generically rather than changes in the circumstances of any particular person. Changes in circumstances for the purposes of reg 44(1) could include changes in legislation, technological innovation and scientific discoveries.
110 If the phrase 'necessary or desirable in the light of changes to the circumstances that existed at the time the [EPA issued the 2008 Exemption]' were to be read narrowly, the legislative framework for managing industrial wastes could be frustrated. In the present case, the plaintiff submitted that the above phrase required the EPA to rely only on objectively ascertainable changes in the plaintiff's circumstances, such as the manner in which it used Cat C soil. If the plaintiff's submission were to be accepted, it would mean that, as long as the plaintiff continues to use the Cat C soil in the same manner and there is no change to the underlying statutory scheme, the 2008 Exemption must continue to apply indefinitely, even though it was irregular in that it did not specify a period of operation, as required by both reg 20(1) of the 1998 Regulations and reg 43(1) of the 2009 Regulations. That cannot be correct because those regulations indicate an unequivocal legislative intention that notifications such as the 2008 Exemption must not operate indefinitely.
111 If the Amendment to the 2008 Exemption had been made due to changes in circumstances in relation to the concept of 're-use', it may have been possible to argue that the amendment was authorised by reg 44. As the Amendment to the 2008 Exemption was not made for this reason, however, it is not necessary for me to express a final view on this issue.
112 The 10 March 2011 Briefing Note, which is set out at [79] above, makes it clear that the Amendment to the 2008 Exemption was based on the premise that cl 1.2 of the 2008 Exemption was - or might be - an expiry clause. The two references in the 10 March 2011 Briefing Note to the need for a 'short extension' to the operation of the 2008 Exemption leave no doubt that the author was of the view that cl 1.2 had - or might have - the effect that, unless the 2008 Exemption was amended to extend its operation, it would expire on 19 March 2011. The inescapable inference from the evidence is that the EPA made the Amendment to the 2008 Exemption for the reasons set out in the 10 March 2011 Br[52]fing Note.52
113 The premise upon which the EPA made the Amendment to the 2008 Exemption was fundamentally flawed. Clause 1.2 of the 2008 Exemption was not an expiry clause but a review clause. The mere presence of cl 1.2 in the 2008 Exemption would not have resulted in the expiration of the exemption on 19 March 2011. Such an outcome could only have occurred by the insertion into the 2008 Exemption of an express expiry clause in accordance with reg 44 of the 2009 Regulations.
114 If the EPA had not made the Amendment to the 2008 Exemption on 11 March 2011, the 2008 Exemption would have continued to operate according to its terms after 19 March 2011. So much had been acknowledged earlier by the EPA in its letter to the plaintiff dated 30 July 2008.[53] Notwithstanding this earlier acknowledgement, on 11 March 2011, the EPA erroneously concluded that it was necessary for it to act urgently to extend the 2008 Exemption so that it could continue to operate pending the outcome of the 2008 Exemption Review in April 2011.
115 As at the time that the Amendment to the 2008 Exemption was made on 11 March 2011, the EPA could not have been satisfied - and did not purport to be satisfied - that the amendment was 'necessary or desirable in the light of changes to the circumstances that existed at the time the [EPA issued the 2008 Exemption]' because it was still engaged in the process of review to determine this very question. It necessarily follows that one of the key conditions precedent in reg 44(1) of the 2009 Regulations for amending the 2008 Exemption was not satisfied and that the Amendment to the 2008 Exemption was not authorised by that regulation.
116 Notwithstanding that the Amendment to the 2008 Exemption states that it was made under reg 44 of the 2009 Regulations, it was neither made under, nor in accordance with, that regulation. First, the Amendment to the 2008 Exemption does not state that the EPA was satisfied of the matters in reg 44(1). Secondly, the EPA did not comply with the notice requirements in reg 44(2).
117 As the Amendment to the 2008 Exemption was not authorised by reg 44 of the 2009 Regulations, it is invalid. In my opinion, there was no other source of power for the making of the Amendment to the 2008 Exemption.
118 In this regard, I reject the EPA's contention that, as the Amendment to the 2008 Exemption was effected in the form of an amendment that inserted an additional condition to the 2008 Exemption and followed the requirement in cl 1.2 for a review of the exemption, the amendment was authorised by reg 43(2)(f) of the 2009 Regulations. That provision empowers the EPA to impose any condition it considers appropriate. However, the mechanism by which a new condition is imposed must be through an amendment under reg 44, otherwise the EPA would be able to impose new conditions with very serious consequences without following the procedures for amendment.
Non-compliance with procedures in reg 46 of the 2009 Regulations
119 My conclusion that the Amendment to the 2008 Exemption was not authorised by reg 44 of the 2009 Regulations means that it is not necessary for me to consider whether the EPA complied with the requirements of reg 46 or the consequences of any non-compliance. As the parties made detailed submissions on these issues, however, I will briefly discuss them.
120 Regulation 46(1) of the 2009 Regulations required the EPA to give written notice of the proposed amendment to the plaintiff and to set out certain matters in that notice. Regulation 46(1)(a) required the EPA to invite the plaintiff to comment on the proposed amendment, and to consider those comments.
121 It is common ground that the EPA did not provide to the plaintiff a document that purported to be a notice under reg 46(1) of the 2009 Regulations and did not, in terms, adopt the procedures set out in that regulation.
122 In my opinion, the EPA failed to comply with reg 46 of the 2009 Regulations, both in form and in substance. Regulation 46 reflects the hearing rule of natural justice. It required the EPA to provide the plaintiff with advance notice of the proposed amendment and the reasons for it and to afford the plaintiff a reasonable opportunity - of at least seven days - to make submissions to the EPA on the proposed amendment. At no stage did the EPA provide such a notice to the plaintiff.
123 I reject the EPA's submission that the s 20B conference afforded the plaintiff a procedure that was equivalent to the procedure in reg 46 of the 2009 Regulations.
124 In my opinion, the evidence establishes that, after the Amendment to the 2008 Exemption was made on 11 March 2011, the EPA ceased to focus specifically on the need for, or appropriateness of, an amendment to the 2008 Exemption by way of the insertion of an expiry clause. That is because, from the EPA's perspective, such an amendment had already been made. The EPA's focus was on whether it should further amend the 2008 Exemption to extend its operation beyond 30 June 2011.
125 Furthermore, the fact that the EPA subsumed the 2008 Exemption Review in its consideration of the Application for SBR meant that the question of amendment to the 2008 Exemption by inserting an expiry clause was overwhelmed by the much wider issues that were raised as part of the s 20B conference procedure. At no time during that procedure did the EPA in form or in substance:
(a) give written notice to the plaintiff of the action the EPA proposed to take in relation to the insertion of an expiry clause in the 2008 Exemption;
(b) give to the plaintiff the reasons why the EPA intended to take that action;
(c) invite the plaintiff to comment on the EPA's proposed action; and
126 It follows that even if the Amendment to the 2008 Exemption had been authorised by reg 44 of the 2009 Regulations, the EPA failed to comply with the procedures in reg 46.
127 As discussed at [88] above, pursuant to Project Blue Sky, the question of whether the EPA's non-compliance with reg 46 of the 2009 Regulations invalidates the Amendment to the 2008 Exemption depends on whether an intention to that effect can be discerned from reg 46.
128 In my opinion, there is little doubt that reg 46 of the 2009 Regulations contemplates that a failure to comply with its requirements in respect of an amendment of the type involved in the present case will invalidate the amendment. First, reg 46 uses mandatory language. Secondly, the subject matter of reg 46 is a revocation or an amendment of a 'notification' which, if found to be valid, can have serious adverse legal, financial and other consequences for the beneficiary of the notification. A finding of invalidity, on the other hand, would not necessarily have serious consequences for the EPA because it could re-exercise the power to amend or revoke provided that it was authorised to do so and it followed the correct procedures in doing so.
129 As I have already stated, reg 46 of the 2009 Regulations reflects the hearing rule of natural justice. At common law, a breach of that rule usually leads to invalidity. This supports my conclusion that the non-compliance with reg 46 in the present case results in the Amendment to the 2008 Exemption being invalid.
Invalidity of Confirmation of Amendment to the 2008 Exemption not in issue
130 It will be recalled from [46] above that one of the four decisions that the EPA made on 8 April 2011 was the Confirmation of Amendment to the 2008 Exemption. The plaintiff has challenged the validity of that decision.
131 In my opinion, the plaintiff's challenge is misconceived. As the Amendment to the 2008 Exemption was not valid, the EPA's Confirmation of Amendment to the 2008 Exemption had no legal effect. The Confirmation of Amendment to the 2008 Exemption was to the effect that the Amendment to the 2008 Exemption would be allowed to operate according to its terms. It was thought that this would result in the 2008 Exemption expiring on 30 June 2011. For the reasons discussed at [104] to [129] above, this was erroneous.
132 Even if the Confirmation of Amendment to the 2008 Exemption is treated as a decision that purported to adversely affect the plaintiff's rights under the 2008 Exemption, substantially for the reasons set out at [119] to [129] above, it would be invalid for failure to comply with reg 46 of the 2009 Regulations.
Irrelevant considerations, improper purpose and unreasonableness
133 My conclusion that the Amendment to the 2008 Exemption is invalid is based on the reasons set out at [104] to [129] above. That conclusion does not depend on a finding that the EPA took into account irrelevant considerations or was actuated by any improper purpose or that the Amendment to the 2008 Exemption was unreasonable.
134 The irrelevant considerations and improper purpose upon which the plaintiff relied were directed more to the Confirmation of Amendment to the 2008 Exemption than to the Amendment to the 2008 Exemption. As I have held that the Confirmation of Amendment to the 2008 Exemption did not have any legal effect, it is not necessary to consider the plaintiff's submissions that the EPA took into account irrelevant considerations and was actuated by an improper purpose.[54]
135 Had it been necessary for me to make a decision on the plaintiff's submissions, I would have rejected them. The evidence established that the EPA's reasoning in relation to the Confirmation of Amendment to the 2008 Exemption was as follows:
(b) pursuant to the Amendment to the 2008 Exemption, the 2008 Exemption would expire on 30 June 2011;
(c) the EPA should reject the Application for SBR because the plaintiff's use of the Cat C soil in the Firewall is not an SBR; and
(d) because there is no SBR, the 2008 Exemption should not be extended beyond its expiry date of 30 June 2011.
136 The above reasoning was flawed not because of the taking into account of irrelevant considerations or the pursuit of an improper purpose, but because the key premise in (a) above was wrong.
137 If I had held that the Amendment to the 2008 Exemption were otherwise valid, I would not have held that it was unreasonable in the Wednesbury sense.[55]
Conclusion: The Amendment to the 2008 Exemption is invalid
138 For the reasons discussed above, the Amendment to the 2008 Exemption is invalid. Accordingly, the 2008 Exemption continues to have effect as a Deemed SBR authorisation pursuant to reg 48(c) of the 2009 Regulations.
139 As discussed at [46] and [82] above, following the s 20B conference on 16 March 2011, on 8 April 2011, the EPA decided to publish a draft waste classification for contaminated soil. According to the 7 April 2011 Briefing Note, the purpose of the draft classification was 'to provide clarity to Victorian industry'. The briefing note included the following under the heading 'Rationale for a draft classification for the reuse of contaminated soils':
[A] number of submitters at the 20B conference indicated that they may consider pursuing SBR authorisations for Cat C and Cat B soil for the construction of bunds or other engineered earthworks, or for the rehabilitation of quarry voids. It was submitted by 20B participants that the rehabilitation of a quarry void, including raising its profile to the pre-mined level, is a requirement by [the Department of Primary Industries] and as such is analogous to [the plaintiff's] firewall requirement. Given that the raising of the profile is often achieved by landfilling of waste, SBRs for this purpose would undermine the entire landfill regulation regime.
140 In its letter dated 8 April 2011 to the plaintiff, the EPA stated the following about its decision to publish a draft classification:
To provide clarity to Victorian industry, the [EPA] will, pursuant to [reg] 11 of the [2009] Regulations, issue a classification, with management options, for contaminated soils. A draft of the classification is to be released soon, to allow time for consultation before the proposed commencement date of 1 July 2011.
The review process demonstrated the need for clarity. That need was reinforced by the 20B conference, which raised uncertainties about investing in new waste treatment technologies and about a range of potential SBR notifications. In designing a draft classification under [reg] 11 of the [2009] Regulations to provide clarity, EPA considered the approaches use[d] in several other Australian States.
141 The draft classification was published on the EPA's website with an invitation to comment.
142 An internal briefing note dated 6 June 2011 recommended the adoption of the 2011 Classification. The briefing note stated that the 2011 Classification would give effect to the wastes hierarchy and the provisions of the 1999 NEPM and the State Environment Protection Policy (Prevention and Management of Contamination of Land) 2002 (Vic) ('Contamination of Land SEPP').
143 As discussed at [50] above, on 21 June 2011, the EPA issued the 2011 Classification. The 2011 Classification was headed 'Prescribed Industrial Waste - Contaminated Soil - Classification with Management Options' and stated that it was made under reg 11(7) of the 2009 Regulations. It also stated that it 'determines the management options for the off-site use of contaminated soil.' The 2011 Classification came into operation on 1 July 2011 and relevantly provided:
2.1 In this classification:
contaminated soil means soil ... that can be classified as Category A, B or C Contaminated Soil as provided for under the [2009] Regulations ... ;
off-site means a site other than the site at which the contaminant(s) entered the soil.
...
4. Conditions of Classification - management options
4.1 [T]he only off-site management options for contaminated soil are:
(a) treatment, to remove, beneficially re-use or destroy any or all contaminants, at a site licensed or authorised by the [EPA]; or
(b) where such treatment is not available, disposal at a site licensed by the [EPA] to accept that contaminated soil.
144 Regulation 11 of the 2009 Regulations, pursuant to which the EPA purported to make the 2011 Classification, provides as follows:
(1) The [EPA] may -
(a) classify any industrial waste as prescribed industrial waste; or
(b) classify any industrial waste as non-prescribed industrial waste; or
(c) further classify any industrial waste or prescribed industrial waste in accordance with this Part.
(2) The [EPA] may specify conditions and limitations that apply to a classification under subregulation (1).
(3) A classification issued by the [EPA] under this Part may -
(a) determine a management option for industrial waste or prescribed industrial waste in accordance with this Part; or
(b) classify industrial waste or prescribed industrial waste according to hazard.
(4) A classification issued by the [EPA] under this Part may be of general or specific application.
...
(6) A waste producer must manage industrial waste or prescribed industrial waste in accordance with any relevant classification issued by the [EPA].
(7) The [EPA] may issue a classification of its own motion or on application from a waste producer where the [EPA] is satisfied that the classification is consistent with -
(a) the principles of environment protection set out in sections 1B to 1L of the Act; and
(b) any applicable national environment protection measure made by the National Environment Protection Council; and
(c) any applicable State environment protection policy or waste management policy.
(8) A classification issued under clause 11 of the Industrial Waste Management Policy (Prescribed Industrial Waste) 2000 No. S183, published on 5 December 2000, as in force immediately before the commencement of these Regulations, continues to have effect as a classification for the purposes of this Part.
145 Regulation 11 is in pt 2 of the 2009 Regulations titled 'Assessing, Categorising and Classifying Industrial Waste and Prescribed Industrial Waste'. The other provisions of pt 2 are regs 6 to 10. Regulation 6 provides as follows:
6 Producer to assess and categorise prescribed industrial waste
A prescribed industrial waste producer must -
(a) assess and categorise prescribed industrial waste in accordance with this Part; and
(b) manage prescribed industrial waste in accordance with any relevant classification under this Part.
146 The phrase 'prescribed industrial waste producer' is defined in reg 5(1) of the 2009 Regulations as follows:
prescribed industrial waste producer means an occupier of premises from which prescribed industrial waste is produced and -
(a) disposed of on the premises; or
(b) transported from the premises, other than through a sewer.
147 Regulations 7 to 10 of the 2009 Regulations set out the following cascading process for a prescribed industrial waste producer to assess and categorise industrial waste:
(a) The first step, under reg 7, is for the waste producer to assess whether there is an opportunity to avoid or reduce the production of the waste. This is consistent with the 'avoidance' management option under the wastes hierarchy.
(b) If avoidance or reduction opportunities are not available, regs 7(2)(b) and 8 require the waste producer to assess whether there are reuse or recycling opportunities for the waste. This is consistent with the 're-use' and 're-cycling' management options in the wastes hierarchy.
(c) If reuse and recycling opportunities are not available, regs 8(2)(b) and 9 require the waste producer to assess whether there are treatment or reprocessing opportunities for the waste. This is consistent with the 'recovery of energy' and 'treatment' management options in the wastes hierarchy.
(d) If there are no recovery of energy and treatment opportunities, regs 9(2)(b) and 10 require the waste producer to classify the waste in terms of hazard posed in accordance with sch 2, which sets out the Category A, B and C classifications. These are consistent with the 'containment' and 'disposal' management options in the wastes hierarchy.
148 The plaintiff submitted that the issue of the 2011 Classification did not involve a valid exercise of power pursuant to reg 11(7) of the 2009 Regulations or any other enabling provision. This was said to be because reg 11(7) does not authorise the EPA to issue a classification, rather, reg 11(1) is the only provision which empowers the EPA to do so. In the plaintiff's submission, regs 11(2) and (3) were not enlivened, as they are merely ancillary to the power in reg 11(1). The plaintiff further submitted that the 2011 Classification does not classify or further classify particular industrial waste as required by reg 11(1) and is therefore invalid.
149 The plaintiff also submitted that, even if reg 11(3) of the 2009 Regulations was an authorising provision, the 2011 Classification goes beyond the scope of reg 11(3). This was said to be because reg 11(3) is confined to determining a management option 'in accordance with' pt 2, which is directed to prescribed industrial waste producers and not waste receivers. According to the plaintiff, regs 6 to 9 establish a hierarchy for the management of industrial waste which is inconsistent with the management options in the 2011 Classification. Further, according to the plaintiff, the 2011 Classification is not in accordance with pt 2, in that it seeks to distinguish impermissibly between off-site and on-site treatment of industrial waste. The 2011 Classification was also said to seek improperly to establish that the only management option for contaminated soil is 'treatment', thus prioritising treatment ahead of reuse and recycling, which is inconsistent with the hierarchy of management approaches in pt 2.
150 The plaintiff also contended that the 2011 Classification is invalid because it seeks to establish that disposal of contaminated soil to landfill is the only alternative to treatment. It was also invalid, so it was said, because it purports to draw a distinction, in the context of reuse, between soil and the contaminants in the soil, when the definition of 'prescribed industrial waste' in reg 5(1) of the 2009 Regulations concerns the contaminated soil rather than the individual contaminants in the soil. The plaintiff submitted that the 2011 Classification, being an instrument made under the 2009 Regulations, cannot undermine the definition of 'prescribed industrial waste', particularly with respect to a DBR. It was said that the 2011 Classification is invalid on the basis that it is in fundamental conflict with the 2009 Regulations because it effectively prevents the off-site reuse of contaminated soil.
151 The plaintiff also submitted that the 2011 Classification is inconsistent with the wastes hierarchy in s 1I of the EP Act (and thus with the 1999 NEPM and the Contamination of Land SEPP) since the effect of the 2011 Classification is to elevate 'treatment' of waste above 're-use' in that hierarchy.
152 The plaintiff contended that, in issuing the 2011 Classification, the EPA took into account the irrelevant considerations set out at [95] above.
153 The plaintiff also argued that the 2011 Classification was made for an improper purpose, namely, the EPA's wish to maximise its revenue from landfill levies. According to the plaintiff, the evidence establishes that the EPA had a deliberate policy of increasing landfill levies, and would be able to collect additional Levy amounts and licence fees if the Firewall were to be treated as a discrete landfill cell. The EPA was also said to be concerned about the possible loss in landfill levies if other businesses sought to obtain a discount on the Levy payable by them by making a comparison between the plaintiff's operations and their own.
154 The EPA submitted that there is nothing in the 2009 Regulations which confines the power to issue a classification to reg 11(1), or which requires that a management option be determined at the same time as another classification. The EPA also submitted that reg 11(7) gives the EPA the power to issue a classification of its own motion.
155 The EPA relied on its issue in June 2009 of guidelines titled 'Soil Hazard Categorisation and Management'. The 2011 Classification was said to augment these guidelines by further determining the off-site management options in respect of contaminated soil. The EPA contended that there has been no misinterpretation of the wastes hierarchy in s 1I of the EP Act, because reuse of a prescribed industrial waste is permitted under the 2011 Classification where that reuse is consistent with the Contamination of Land SEPP and the 1999 NEPM.
156 Further, according to the EPA, the 2011 Classification does not elevate 'treatment' ahead of 're-use' because the process of constructing the Firewall is most accurately characterised as a 'disposal' rather than a 're-use'. This was said to be because the process of placing Cat C soil into the Firewall is not meaningfully distinguishable from landfilling.
157 The EPA submitted that the 2011 Classification correctly distinguishes between on-site and off-site uses of contaminated soil because this distinction is made in the Contamination of Land SEPP.
158 The EPA also submitted that it is correct to draw a distinction between soil and the contaminants in that soil, since it is the contaminants themselves which confer prescribed industrial waste status on the contaminated soil. According to the EPA, the plaintiff has not considered whether the contaminants in the Cat C soil are being reused and if so, what benefit they provide to the Firewall.
Decision on the validity of the 2011 Classification
Whether the 2011 Classification was authorised by pt 2 of the 2009 Regulations
159 I agree with the plaintiff's primary submission that reg 11(1) of the 2009 Regulations is the sole source of power to issue a classification and that the 2011 Classification was not authorised by that provision. Accordingly, the 2011 Classification is invalid. My reasons are as follows.
160 Regulation 11(1) of the 2009 Regulations empowers the EPA to perform three tasks: first, to classify any industrial waste as prescribed industrial waste; secondly, to classify any industrial waste as non-prescribed industrial waste; and thirdly, to further classify any industrial waste or prescribed industrial waste in accordance with pt 2.
161 Regulation 11(1) of the 2009 Regulations is the only regulation in pt 2 that uses the expression 'may classify'. All the other provisions of reg 11 set out either the preconditions, attributes or consequences of a classification under pt 2; they do not, in terms, independently authorise the issuing of a classification.
162 Regulation 11(2) of the 2009 Regulations is clearly not an independent source of power to issue a classification, as it expressly refers to 'a classification under subregulation (1).' Regulation 11(3) is also not an independent source of power because it refers to a classification 'issued ... under this Part', which must mean a provision in pt 2 other than reg 11(3). Although reg 11(3) refers to a classification 'under this Part' whereas reg 11(2) refers to a classification 'under subregulation (1)', in the absence of any other provision in pt 2 which confers a power on the EPA to issue a classification, the reference to pt 2 must be to reg 11(1).
163 Regulations 11(4) and (6) of the 2009 Regulations on their face do not confer on the EPA an independent power to issue a classification.
164 Regulation 11(7) of the 2009 Regulations, upon which the EPA expressly relied in issuing the 2011 Classification, is also not an independent source of power to issue a classification. Although reg 11(7) does not refer to a classification under pt 2, it cannot be an independent source of power because it does not set out any subject matter for any classification that might be issued under the regulation. It merely states how a classification may be initiated and the matters with which it must be consistent. Of necessity, it must be referring to classifications issued under reg 11(1).
165 Having established that reg 11(1) of the 2009 Regulations is the only source of power to issue a classification, the question that arises is whether that provision authorised the 2011 Classification. That question depends on whether the 2011 Classification falls within para (a), (b) or (c) of reg 11(1).
166 The operative provisions of the 2011 Classification are set out at [143] above. In essence, the 2011 Classification provides that the only off-site management options for contaminated soil are treatment or disposal. This clearly does not constitute a classification of any industrial waste as prescribed industrial waste or a classification of any industrial waste as non-prescribed industrial waste. It also does not constitute a further classification of any industrial waste or prescribed industrial waste in accordance with pt 2 because it does not refer to any previous cl[56]sification56 and does not purport to perform a classification - or further classification - function.
167 Regulation 11(3) of the 2009 Regulations authorises the EPA to determine a management option for industrial waste or prescribed industrial waste in accordance with pt 2. The regulation, however, makes it clear that the management options must be included in a classification that is issued under pt 2; it does not authorise the issuing of management options independently of the issuing of a classification. That is precisely what the 2011 Classification purports to do: it contains management options without any classification.
168 It follows that, as the 2011 Classification was not authorised by any provision of pt 2 of the 2009 Regulations, it is invalid.
169 My conclusion at [168] above means that it is not strictly necessary for me to decide the other grounds of invalidity of the 2011 Classification upon which the plaintiff relied, which may be summarised as follows:
(a) the 2011 Classification is not in accordance with pt 2 of the 2009 Regulations and is inconsistent with the wastes hierarchy and other provisions of the regulations; and
(b) the issuing of the 2011 Classification was influenced by irrelevant considerations and an improper purpose.
170 As the parties have made extensive submissions on these grounds, however, I will briefly consider them in turn.
Inconsistency with the wastes hierarchy and the 2009 Regulations
171 I reject the plaintiff's submission that the 2011 Classification is not in accordance with pt 2 of the 2009 Regulations because the provisions of pt 2, other than reg 11, deal with the assessment and categorisation obligations of prescribed industrial waste producers and do not refer to waste receivers. The 2011 Classification does not, in terms, impose any obligations on waste receivers and is capable of operating in relation to prescribed industrial waste producers alone, in the same way as regs 6 to 10 do.
172 I agree with the plaintiff that the 2011 Classification seeks to draw a distinction between on-site and off-site management options when the 2009 Regulations do not draw such a distinction. However, insofar as the 2011 Classification seeks to give preference to on-site uses over off-site uses at the same level in the wastes hierarchy (such as a preference for on-site reuse over off-site reuse), it would not necessarily be inconsistent with that hierarchy or the 2009 Regulations. Further, such an approach is consistent with the Contamination of Land SEPP. On the other hand, insofar as the 2011 Classification would require a prescribed industrial waste producer to give preference to an on-site use over an off-site use where the latter is on a higher level on the wastes hierarchy, it would be inconsistent with the cascading process in regs 6 to 10 of the 2009 Regulations. This is because, although that process does not distinguish between on-site and off-site uses at the same level of the wastes hierarchy, it gives descending preference to uses at different levels of the wastes hierarchy in accordance with s 1I of the EP Act.
173 Further, insofar as the 2011 Classification seeks to give preference to an on-site use over an off-site use where the latter is on a higher level on the wastes hierarchy, it would be inconsistent with other important provisions of the 2009 Regulations. They include reg 1, which states that the regulations seek to give effect to the wastes hierarchy, and the definition of 'direct beneficial reuse', which does not draw a distinction between on-site reuse and off-site reuse. These provisions and the wastes hierarchy in s 1I of the EP Act make it clear that reuse is preferable to both treatment and disposal, whereas the 2011 Classification limits the off-site management options to treatment and disposal. It can be inferred from the wastes hierarchy that the EP Act has adopted the approach that, generally speaking, each level of the hierarchy is more beneficial to the environment than the level below it.
174 The EPA relied on s 13(1)(ce) of the EP Act which provides that one of the EPA's duties and functions is to facilitate decreased disposal of waste off-site. However, that section is confined to the last item on the wastes hierarchy, 'disposal', and has nothing to do with the second item, 're-use'.
Irrelevant considerations and improper purpose
175 The evidence establishes that, in deciding to issue the 2011 Classification, the EPA considered the matters set out in reg 11(7) of the 2009 Regulations and satisfied itself that the 2011 Classification was consistent with those matters. The plaintiff has not contended that the EPA could not have been satisfied of the matters set out in reg 11(7)(b) and (c), but disputes that the EPA could properly have been satisfied that the 2011 Classification was consistent with the principle of wastes hierarchy. I have already discussed the incompatibility of the 2011 Classification with the wastes hierarchy. However, reaching an erroneous decision on the effect of a relevant consideration is not the same thing as taking into account an irrelevant consideration.
176 The evidence is insufficient to persuade me that, in deciding to issue the 2011 Classification, the EPA was influenced by the irrelevant considerations or improper purpose upon which the plaintiff relied. In any event, if, contrary to my conclusions above, I had decided that the 2011 Classification was authorised by reg 11 of the 2009 Regulations and was compatible with those regulations and the wastes hierarchy, I would not have been satisfied that the 2011 Classification was vitiated by any irrelevant considerations or improper purpose. This is because, if it is assumed that the 2011 Classification was authorised and compatible with the applicable statutory provisions, it would not have been inappropriate for the EPA to have adverted to the revenue, regulatory and policy implications of the 2011 Classification. In those circumstances, the alleged irrelevant considerations and the alleged improper purpose would not have been 'significant' or 'substantial' in the sense discussed at [90] and [[](#_Ref3 > direct beneficial reuse means use as an input or raw material substitute in a commercial, industrial, trade or laboratory activity without prior treatment or reprocessing.
181 Other relevant definitions in reg 5(1) of the 2009 Regulations are as follows:
prescribed industrial waste producer means an occupier of premises from which prescribed industrial waste is produced and -
(a) disposed of on the premises; or
(b) transported from the premises, other than through a sewer.
reprocessing does not include reusing or recycling prescribed industrial waste or energy recovery from prescribed industrial waste;
secondary beneficial reuse means use as an input or raw material substitute in a commercial, industrial, trade or laboratory activity following any form of treatment or reprocessing;
treatment means any form of physical or chemical alteration other than reprocessing, including but not limited to composting, energy recovery and applying to land;
waste receiver means an occupier of premises licensed by the [EPA], or premises exempt from licensing requirements, who disposes of, treats, stores or reprocesses prescribed industrial waste;
waste transporter means a person who transports prescribed industrial waste on a highway.
182 Regulation 33 of the 2009 Regulations deals with the transport of prescribed industrial waste. It provides as follows:
(1) A prescribed industrial waste producer must complete a transport certificate setting out the information specified in Part A of Schedule 3 for each consignment of prescribed industrial waste transported from the premises of that waste producer.
Penalty: 20 penalty units.
(2) A waste transporter must -
(a) complete a transport certificate setting out the information specified in Parts A and B of Schedule 3 for each consignment of prescribed industrial waste transported by that waste transporter; and
(b) provide the information to the prescribed waste producer before the waste is transported from the premises of the waste producer; and
(c) provide the information to the waste receiver at the time of delivery of the waste to the waste receiver.
Penalty: 20 penalty units.
(3) A prescribed industrial waste producer who receives information under subregulation (2)(b) must, within 7 days after receipt of the information, provide the information to the [EPA].
(4) A waste receiver who receives a consignment of prescribed industrial waste must -
(a) at the time of receipt of the waste, provide the waste transporter the information specified in Part C of Schedule 3; and
(b) within 7 days after receipt of the waste, provide the [EPA] the information specified in Parts A, B and C of Schedule 3.
Penalty: 20 penalty units.
183 Schedule 3 of the 2009 Regulations sets out information that must be provided to the EPA where prescribed industrial waste is transported. Schedule 3 is in three parts: Part A sets out the information to be supplied by the prescribed industrial waste producer; Part B sets out the information to be supplied by the waste transporter; and Part C sets out the information to be supplied by the waste receiver. The items in Part A that the prescribed industrial waste producer must provide in respect of the waste being transported to a waste receiver include 'Consignment identification', 'Waste codes' and 'Type of treatment at the premises of the waste receiver'. The items in Part C that the waste receiver must provide include 'Type of treatment'.
184 The EPA has approved a standard form waste transport certificate for use in supplying the information required by sch 3 of the 2009 Regulations. Consistently with sch 3, the waste transport certificate is in three parts. The waste transport certificates that have been completed for Cat C soil used in the Firewall are discussed at [208] to [212] below.
185 The EPA has also published five lists of waste codes to assist in the completion of waste transport certificates. For present purposes, only the fifth list, 'List 5: Disposal/Treatment Options', is relevant. List 5 is divided into two parts. The first part, designated by 'D', comprises operations that do not lead to the possibility of resource recovery, recycling, reclamation, direct reuse or alternative uses. The second part, designated by 'R', comprises operations that may lead to resource recovery, recycling, reclamation, direct reuse or alternative uses. Code 'D1' is 'Landfill disposal of Category C waste'. The list does not include a specific code for a DBR or an SBR. This is because waste transport certificates only apply to the transport of prescribed industrial waste; where soil is the subject of a DBR or an SBR, it is no longer prescribed industrial waste.[58]
186 The waste codes in List 5 are relevant to item 7 ('Type of Treatment (List 5)') in Part C of the waste transport certificate that must be completed by the waste receiver. Item 3 in Part A of the waste transport certificate, which must be completed by the waste producer, sets out the following nine 'tick box' options for 'Intended Disposal Route': 'Recycling', 'Storage', 'Landfill', 'Incineration', 'Energy Recovery', 'Immobilisation', 'Chem/Phys Treatment', 'Biodegradation' and 'Other'.
Elements of definition of 'direct beneficial reuse' and principles of interpretation
187 A preliminary issue arises as to whether the definition of 'direct beneficial reuse' should be interpreted as a composite expression with reference only to the meaning of the words following the word 'means' or whether regard should also be had to the meaning of the individual words 'direct', 'beneficial' and 'reuse' in the defined term itself.
188 The plaintiff submitted that the defined term is an artificial construct which is given a special meaning in the 2009 Regulations and, therefore, only the meaning of the words following the word 'means' are relevant. On this basis, in order for there to be a DBR, four components must be established, namely, 'use'; 'input or raw material substitute'; 'in a commercial, industrial, trade or laboratory activity'; and 'without prior treatment or reprocessing'. According to the plaintiff, as it has satisfied each of these components, there is no necessity for it to separately establish that there was a reuse which was direct and beneficial. In the alternative, the plaintiff submitted that its use of the Cat C soil in the Firewall was a reuse which was direct and beneficial.
189 The EPA submitted that to interpret the defined term 'direct beneficial reuse' solely by reference to the meaning of the words following the word 'means' would give that term a very wide scope which would lack appropriate context and undermine the statutory scheme for protecting the environment. According to the EPA, reliance on the literal meaning of the words following the word 'means' could potentially have the effect that any disposal of waste in a landfill could constitute a DBR. Such an interpretation, so it was said, would fail to give effect to the principle of wastes hierarchy which not only draws a distinction between 're-use' and 'disposal', but places reuse second and disposal last in the preference hierarchy.
190 In my opinion, the meaning of the defined term 'direct beneficial reuse' is governed by the meaning of the words following the word 'means' rather than by the meaning of the individual words 'direct', 'beneficial' and 'reuse'. However, that does not mean that those individual words must be ignored in interpreting the defined term. On the contrary, those words provide part of the context which must be taken into account in the process of statutory interpretation, along with the purposes and objectives of the 2009 Regulations and the EP Act.
191 The correctness of the above approach is reinforced by the fact that one of the words in the defined term is 'reuse' which is one of the options for managing wastes in the wastes hierarchy. According to both s 1A(3) of the EP Act and reg 1(a) of the 2009 Regulations, the wastes hierarchy must be taken into account in the administration of the EP Act and, inferentially, in the interpretation of the EP Act and any regulations made under that Act.
192 It follows that an interpretation of the defined term 'direct beneficial reuse' which gives effect to the principle of wastes hierarchy and the other principles of environment protection and the purposes of the EP Act and the regulations made under it is to be preferred to an interpretation which does not do so.
193 I will now consider the elements of the defined term 'direct beneficial reuse' in the light of the above principles.
194 The only expressions in the definition of 'direct beneficial reuse' that are defined in the 2009 Regulations are 'treatment' and 'reprocessing', which are set out at [181] above. It was common ground that the Cat C soil that the plaintiff used in the Firewall did not undergo any prior treatment or r[59]rocessing.59 Although the EPA submitted that, in determining whether the Cat C soil was 'an input or raw material substitute in a commercial, industrial, trade, or laboratory activity', it was necessary to consider the role of the contaminants in the soil rather than the soil itself, the correct position is that one must look at the role of the waste, which in this case is the Cat C soil. In my opinion, the Cat C soil was a raw material substitute for clay or clean fill, the latter of which is a valuab[60] resource.60 The construction of the Firewall was a necessary part of the plaintiff's landfill operation, which is a commercial or industrial activity.
195 In relation to the word 'direct' in the defined term 'direct beneficial reuse', the fact that the Cat C soil does not undergo any treatment or processing must mean that its use is 'direct'.
196 The presence of the word 'beneficial' in the defined term 'direct beneficial reuse' may mean that if a reuse of waste literally constitutes 'an input or raw material substitute in a commercial, industrial, trade or laboratory activity without prior treatment or reprocessing' but the reuse can be shown to create a serious, unregulated environmental hazard, that reuse would not constitute a DBR. However, it is not necessary for me to express a final view on this matter. This is because, if the use of the Cat C soil in the Firewall satisfies the requirements of the defined term 'direct beneficial reuse', that use would be beneficial in the ordinary sense of that word.
197 One of the meanings of 'beneficial' in the Shorter Oxford English Dictionary is 'of benefit, advantageous'. The use of Cat C soil in the Firewall is of benefit and advantageous because the Firewall is being constructed using waste which would otherwise go to landfill, rather than a valuable commodity with alternative uses, namely, clean fill. That use of the Cat C soil is also of benefit because it contributes to the building of a structure (the Firewall) that has environmental benefits compared with the alternative use of disposal in a landfill.
198 Although the word 'reuse' appears before the word 'means' and the word 'use' appears after the word 'means', this cannot be taken as an indication that a first time use, as distinct from a reuse, can satisfy the definition of 'direct beneficial reuse'. This is because such an interpretation would not only fail to give effect to the order of preference in the principle of wastes hierarchy, but would fail to engage with that principle altogether.
(a) whether the Cat C soil was reused as distinct from disposed of; and
(b) whether the Cat C soil has been consigned for use as a DBR.
200 Before turning to each of these issues, it is necessary to set out the process by which Cat C soil is brought onto the Site and used in the Firewall.
Factual issue: How Cat C soil is brought to the Site and used in the Firewall
201 Paragraphs [202] to [218] below describe the process by which Cat C soil is brought to the Site, and the documentation involved. The description is predominantly based on the evidence of Mr Timothy Tillig, the Environmental Quality and Safety Officer of the plaintiff, and the documents exhibited to his affidavit.
202 The majority of the plaintiff's customers who send Cat C soil to the Site are not the landowners or developers of the land from which the Cat C soil originates, but contractors engaged by the landowners or developers to clean up the land or remove the Cat C soil. Thus the plaintiff's customers are generally not the producers of the waste products delivered to the Site but their contractors. These contractors may sub-contract the task of transporting the Cat C soil to the Site.
203 When a customer of the plaintiff decides to transport Cat C soil to the Site, the plaintiff receives analytical data from the customer describing the contaminants in the soil. Mr Tillig is responsible for analysing this data and determining whether the soil is Cat C soil. If he is satisfied that the soil is Cat C soil, Mr Tillig advises the customer that the plaintiff will accept the soil.
204 If the plaintiff is to accept a customer's soil, Mr Tillig sends the customer a 'Prescribed Waste Pre-Receipt' form ('pre-receipt form') to assist the customer to complete Part A of the waste transport certificate. This form may be sent to the customer by the plaintiff many months before the Cat C soil is actually transported to the Site.
205 Since January 2010, the plaintiff has used three different versions of the pre-receipt form, each of which includes some details concerning the customer, the site which is the source of the Cat C soil to be received by the plaintiff, the contaminants which are most highly concentrated in that soil, and waste and hazard codes.
206 The two versions of the pre-receipt form used by the plaintiff during the period January 2010 to 22 November 2012 did not state whether Cat C soil delivered to the Site would be used to build the Firewall, or sent to a landfill cell.
207 From 29 November 2012 onwards, in the section headed 'Job Details', the pre-receipt form has specified whether the Cat C soil will be used in the Firewall, described as 'Cell F', or sent to the landfill cell, described as 'Cell C'. However, under the heading 'Intended Disposal Route' in item 3 of Part A, the plaintiff's instruction states: 'Please tick the relevant category'.
208 Once the customer receives the pre-receipt form, the process of completing a waste transport certificate that is described at [182] to [186] above is commenced. Part A of the certificate is accompanied by the instruction '[t]o be completed by the Producer of the Waste', whereas Part B is to be completed 'by the Waste Transporter' and Part C 'by the Depot Receiving Waste'. The plaintiff does not provide guidance as to how the waste transport certificate should be completed by the waste producer or the waste transporter.
209 A single pre-receipt form may relate to several truckloads of waste to be transported to the Site whereas an individual waste transport certificate is completed for each load of soil which arrives at the Site.
210 When a truck carrying Cat C soil arrives at the weighbridge on the Site, the driver provides to the weighbridge operator a waste transport certificate and the operator gives the driver a 'tipping weighbridge docket'. A copy of the docket is later sent to the customer with an invoice. Since at least 1 January 2010, the weighbridge dockets issued by the plaintiff have stated whether the 'product' (the Cat C soil) in respect of which the docket was issued was to be used in the Firewall (Cell F) or sent to landfill (Cell C).
211 An employee of the plaintiff then completes Part C of the waste transport certificate.
212 The plaintiff keeps a copy of each waste transport certificate and sends the second copy to the EPA. The third copy is retained by the waste transporter.
213 After a truck carrying Cat C soil leaves the weighbridge, the load is spatially located using GPS.
214 The plaintiff issues an invoice to the customer, generally shortly after one or more loads of Cat C soil are received at the Site. The plaintiff has issued invoices in the same format at all times relevant to the proceeding. The invoices do not refer to the Levy or to any other costs. Where the Cat C soil has been used in the Firewall, the 'product' covered by the invoice is described in the invoice as 'CAT C TO F/WALL'; where the product has been used in the landfill, it has been described as 'CAT C TO CELL C'.
215 The plaintiff has nearly always specified 'D1' as the 'Type of Treatment' in item 7 in Part C of the waste transport certificates. This was so irrespective of whether the Cat C soil was used in the Firewall or disposed of in the landfill. In his affidavit, Mr Tillig stated that it was his understanding that this was because 'there was no option set out in the Waste Code Guidelines which accurately fitted the reuse of the Category C soils in building the firewall.' However, Mr Tillig did not personally complete Part C of the waste transport certificates and the two employees who did so - and who are still employed by the plaintiff - did not give evidence.
216 In cross-examination, Mr Tillig accepted that customers are 'looking for somewhere to dispose of the soil', that they have never specifically requested that the soil be placed in any specific area within the Site, and that the decision as to whether the Cat C soil is used in the Firewall or sent to landfill is made by the plaintiff alone based solely on tonnage.
217 In his affidavit, Mr Donald Calleja, the managing director of the plaintiff, said:
Our rule of thumb was that it was not cost effective to divert consigned volumes of less than 100 [tonnes of Cat C soil] to the firewall because of the laboratory costs of analysis of the material delivered. Deposits to the landfill cell were not required by EPA to be analysed whereas deposits to the firewall were so required. Consignments under 100 tonnes therefore typically went to the landfill Category C cell. The 100 [tonne] cut-off figure has varied over the years depending on volume availability. From time to time the cut-off figure was 200 [tonnes].
218 The EPA tendered two large bundles of waste transport certificates relating to Cat C soil used in the Firewall. The fully completed certificates[61] disclose the following:
(a) subject to (b), (c) and (d) below, in all the certificates, the 'Landfill' box was ticked as the 'Intended Disposal Route' in item 3, Part A of the certificates;
(b) in 18 certificates, no box was ticked for the 'Intended Disposal Route' in item 3, Part A;
(c) in one certificate, the 'Energy Recovery' box was ticked as the 'Intended Disposal Route' in item 3, Part A;
(d) in one certificate, the 'Storage' box was ticked as the 'Intended Disposal Route' in item 3, Part A;
(e) subject to (f) below, in all the certificates, the plaintiff specified 'D1' as the waste code for 'Type of Treatment' in item 7, Part C of the certificates; and
(f) in five certificates, the 'Type of Treatment' in item 7, Part C was left blank.
219 The starting point for a consideration of the meaning of 'reuse' in the defined term 'direct beneficial reuse' is the presence of that word in the wastes hierarchy. Given the centrality of the principle of wastes hierarchy in the EP Act and the 2009 Regulations, it is inconceivable that the word 'reuse' would have a different meaning where used in the defined term 'direct beneficial reuse' than where used in the wastes hierarchy.
220 Although neither the EP Act nor the 2009 Regulations define 'reuse', the principle of wastes hierarchy provides a context for ascertaining its meaning. That principle sets out a clear order of preference for options to manage waste. While there is some overlap between the seven options, they each have separate fields of operation and must be given independent effect. Importantly for present purposes, an activity which, in substance, constitutes disposal cannot be a reuse, as this would elevate the activity from last preference to second preference.
221 According to the Shorter Oxford English Dictionary, 'reuse' as a noun means 'further use; using over again, a second or further use' and 'reuse' as a verb means 'use again; use more than once'.
222 The plaintiff submitted that the question of whether the Cat C soil was reused in the Firewall is a question of fact to be determined objectively. On this basis, so it was said, there can be no doubt that the soil was reused in the Firewall. The plaintiff relied on the fact that, in granting the 2008 Exemption, the EPA expressly determined that the use constituted a reuse.[62] The plaintiff also relied on a series of internal EPA memoranda created in the period from 29 March 2000 until 7 April 2011 which acknowledged that the use constituted a reuse.
223 The EPA submitted that the plaintiff's use of the Cat C soil in the Firewall did not constitute a 'reuse' of the soil because there was no agreement between the waste producer and the plaintiff that the soil would be delivered to the plaintiff for that use. On the contrary, so it was said, the waste producer designated the soil for use in the landfill in accordance with pt 2 of the 2009 Regulations[63] and it was the plaintiff that made the decision to divert it from that use for use in the Firewall. The EPA placed particular reliance on the transport certificates, the vast majority of which were completed by both the waste producer (or a clean-up contractor engaged by the waste producer) and the plaintiff to indicate that the Cat C soil was destined for the landfill.[64]
224 The EPA also submitted that the use of the Cat C soil in the Firewall did not constitute a reuse because that use was not consistent with the types of use which the 1999 NEPM and the Contamination of Land SEPP treated as reuse. According to the EPA, the plaintiff's use of the Cat C soil in the Firewall constituted a disposal.
225 In my opinion, the question of whether the plaintiff's use of the Cat C soil in the Firewall constitutes a reuse must be determined by reference to ordinary principles of statutory interpretation.
226 Where contaminated soil is excavated at one site and is used at a second site either to fill a hole or to build a structure such as a freeway ramp or a firewall, it may be said that the soil is reused in both scenarios. That is because, prior to its excavation and arrival at the new site, the soil already had a use. However, to interpret the word reuse simplistically as 'a further use' would fail to give effect to the principle of wastes hierarchy as required by s 1A(3) of the EP Act.
227 The context in which the word 're-use' appears in the principle of wastes hierarchy indicates that the further use must have a positive effect on the environment, as must recycling and recovery of energy, rather than a detrimental or even a neutral effect, such as might result from containment or disposal.
228 The Firewall is an engineered structure which the EPA requires to be built at the Site for an environmentally beneficial purpose, namely, to prevent a fire in the landfill spreading to the coal seam. The evidence establishes that, without the Firewall, the environmental consequences of a fire spreading to the coal seam would be disastrous because such a fire would be extremely difficult to extinguish. The evidence also establishes that, if the plaintiff were prohibited from using Cat C soil in constructing the Firewall, it would have to use clay or clean fill, the latter of which is a finite resource that has many alternative uses.
229 Two conclusions follow from the matters discussed at [226] to [228] above. First, as already discussed at [197] above, the further use of the Cat C soil in the Firewall is beneficial to the environment. Secondly, and following on from the first conclusion, that further use constitutes a reuse because it involves the active building up of a structure that the EPA, for sound environmental reasons, has made a requirement of the EPA Licence.
230 In arriving at the above conclusion, I have not overlooked the fact that the plaintiff's landfill is subject to environmental controls. However, even if the landfill can be treated as an engineered cell or structure, Cat C soil that is deposited in it is simply being disposed of in a passive manner to fill a hole rather than to actively contribute to the construction of an environmentally beneficial structure.
231 I reject the EPA's submission that the fact that the Cat C soil is not delivered by the waste producer to the plaintiff for the purpose of use in the Firewall - a matter that I discuss in detail below - means that the soil is not reused. I agree with the plaintiff that the question of whether the soil was reused in the Firewall is a question of fact to be determined after the event.
232 In determining the meaning of 'reuse', I have not been assisted by the policies to which the EPA referred. Although these policies are made pursuant to statutory power,[65] and can provide authoritative guidance in the administration of the EP Act and the regulations made under it, they cannot determine the meaning of a provision in such regulations. However, I accept that terms that are defined in policies in force prior to the making of particular regulations - particularly policies that are stated to be applied, adopted or incorporated by those regulations - may constitute an extrinsic aid to the interpretation of the same terms in the regulations.
233 I have also not been assisted by two cases on which the EPA relied. The first such case was Environment Protection Authority v Terrace Earthmoving Pty Ltd,[66] which required the New South Wales Land and Environment Court to determine whether the defendant was guilty of unlawfully transporting waste under s 143 of the Protection of the Environment Operations Act 1997 (NSW). A key question in that case was whether the particular material transported by the defendant - demolition materials such as broken bricks and tiles to be used to build a private road - constituted 'waste'. Craig J concluded that the material was not waste for the purposes of the offence provision, largely because the material had a value in addition to the fees that the defendant could earn from its transportation, and there was a demand for it for road construction.[67]
234 The second case upon which the EPA relied was a decision of the Court of Justice of the European Union,[68] in which the Court was asked to give a preliminary ruling on a number of questions, including whether petroleum coke constituted 'waste' for the purposes of art 1(a) of Directive 75/442/EEC of the European Parliament. In that case, the Court stated a number of indicia for determining whether a substance is 'waste', including whether it has an economic value as a product regardless of further processing, the likelihood of whether that substance will be further used without prior processing, and whether any treatment method for the substance is a standard waste treatment method.
235 These two cases can be distinguished from the present case on the basis that they were concerned with whether materials were waste. In the present case, there is no dispute that Cat C soil is waste.
236 The fact that, between 29 March 2000[69] and 7 April 2011[70] the EPA considered the plaintiff's use of Cat C soil in the Firewall to be a reuse of the soil and granted the 2008 Exemption on that basis has not had any bearing on my decision on the reuse issue. This is because the EPA's opinions on this matter cannot bind this Court, nor can they create an estoppel upon which the plaintiff can rely. If the EPA had consistently maintained the position that the use did not constitute a reuse, that would not have prevented me from finding otherwise.
237 The plaintiff did not dispute the EPA's proposition that the protection of the environment is a dynamic process which is informed by factors such as technological innovation. Accordingly, it is possible for a concept such as reuse to evolve over time. However, in the period that is relevant to this proceeding from 9 June 2010 until 30 June 2013, the Cat C soil that the plaintiff placed in the Firewall was reused in the construction of the Firewall.
Was the Cat C soil consigned for use as a direct beneficial reuse?
238 The word 'consigned' is not defined in either the EP Act or the 2009 Regulations. However, as appears from [182] above, the word 'consignment' is used in reg 33 of the 2009 Regulations. I agree with the plaintiff's submission that, in the context of that regulation, the word 'consignment' simply means 'load'.
239 The phrase 'consignor of waste' appears in the heading to s 53B of the EP Act and the phrase 'consigned to' is used in s 53D(1). Both sections are in pt IXA, titled 'Transport of Prescribed Waste'. The terms of s 53B make clear that a 'consignor of waste' is a person who causes or permits waste to be transported on a highway from a place owned or occupied by that person. Such a person will usually be the waste producer. Section 53D(1) relevantly provides that a producer of prescribed industrial waste must take reasonable steps to ensure that prescribed industrial waste that is transported from any place occupied by the producer is 'consigned to and received by ... an occupier of scheduled premises licensed to reprocess, treat, store, contain, dispose of or handle that prescribed waste'.
240 The Regulatory Impact Statement for the 2009 Regulations ('Regulatory Impact Statement') contained an exposure draft of the proposed regulations. That draft included the following definition of 'prescribed industrial waste':
prescribed industrial waste means any industrial waste ... other than industrial waste ... that -
...
(b) has a direct beneficial reuse and has been consigned by the waste producer to a person to use in manufacturing materials, or to use in processing, handling, or transporting other materials; ...
241 The Shorter Oxford English Dictionary offers a number of definitions of the verb to 'consign'. These relevantly include: 'Entrust or commit to another's charge or care'; 'Make over as a possession, deliver formally or commit to a state, fate'; and 'Deliver or transmit (goods) for sale etc. or custody; send (goods) by carrier, rail, etc'.
242 The word 'consignation' is defined to include 'delivery, consigning to a state or condition.' Similarly, the term 'consignment' is defined to include: 'The action or an act of handing over; committal, delivery'; 'The action of consigning goods for sale etc. or custody'; and 'A quantity of goods consigned for sale etc. or custody'.
243 In Universal Guarantee Pty Ltd v Metters Ltd,[71] the Supreme Court of Western Australia was required to consider the meaning of the phrase 'on consignment' in the context of a delivery note providing that a refrigerator was to be held 'on consignment for display or return'. Jackson J stated that 'to "consign" is literally to "deliver" goods and the purpose of the delivery must be ascertained in each case according to the particular facts.'[72]
244 The plaintiff submitted that the term 'use' in the phrase 'consigned for use' should be interpreted to encompass use on-site as well as off-site, and use by the waste producer as well as use by another person. As such, the phrase 'consigned for use' ought to be taken to mean 'has been put to the direct beneficial reuse'. This interpretation was said to be preferable to other definitions of 'consigned', such as 'transported' or 'changed custody'. The plaintiff also contended that the word 'consigned' was not intended to have a technical legal meaning.
245 In the plaintiff's submission, the assessment of whether waste 'has been consigned' for use must be retrospective, and the assessment cannot be made until the act of consignment is complete. In order to make a finding as to whether a particular item has been consigned an objective assessment of the activity or arrangement is required.
246 The plaintiff submitted that, in the present case, the act of consignment was completed when the plaintiff gave the waste transporter a tipping weighbridge docket. As such dockets identify the destination of the Cat C soil as the Firewall, the soil must be treated as having been consigned for use in the Firewall.
247 The EPA submitted that the meaning of the word 'consign' is a question of statutory construction. The essence of consignment is the delivery of goods from one person (the consignor) to another (the consignee) for purposes such as sale or custody. The ordinary meaning of consign was said to be consistent with the legal meaning of that word set out in Metters.
248 In the EPA's submission, the consignor must be the waste producer or its agent, the waste transporter, and the consignee is the plaintiff. The EPA relied on the evidence of Mr Tillig in support of the proposition that the purpose of the waste producer in consigning the Cat C soil to the plaintiff is for disposal rather than reuse. The EPA further submitted that a waste receiver such as the plaintiff is not empowered by the 2009 Regulations to consign waste, such as for use as a DBR. This is because reg 5(1), in which the phrase 'direct beneficial reuse' appears, is a definitional section and does not confer power on the plaintiff to consign waste.
249 In my opinion, consistently with the observation of Jackson J in Metters, the word 'consigned' means 'delivered'. The phrase 'has been consigned' is in the passive form of the present perfect tense. The use of that tense indicates that, at the time at which the question is being considered, the action of consigning the Cat C soil is complete. In the context in which the phrase is used in the definition of 'prescribed industrial waste' in the 2009 Regulations, the issue is whether Cat C soil 'has been delivered for use' as a DBR. This requires a consideration of the purpose for which the Cat C soil has been delivered.
250 I agree with the plaintiff that the question of whether the Cat C soil has been delivered for reuse in the Firewall is a question of fact to be determined objectively in the circumstances of the case. The question cannot be determined by reference to the subjective intentions of any party. However, I do not accept the plaintiff's contention that this question is to be answered retrospectively by reference to the actual use to which the Cat C soil has been put. This is because such an interpretation would depend wholly on whether the Cat C soil has been used for that purpose and would render otiose the phrase 'consigned for'.
251 The regulatory scheme set out at [182] to [186] above provides contextual support for rejecting the interpretation that 'has been consigned for use' for a particular purpose simply means 'has been used' for that purpose. This is because such a meaning would have the effect that the waste receiver would have ultimate control of whether Cat C soil has been consigned for use as a DBR in circumstances where reg 33 and pt 2 of the 2009 Regulations impose stringent obligations on the waste producer to assess the use to which the soil would be put. The 2009 Regulations could not intend that the assessment made by the waste producer could be ignored in deciding whether Cat C soil has been consigned for use as a DBR.
252 In my opinion, the phrase 'has been consigned for use' involves a consideration of the purpose for which the delivery has been made rather than the use to which the delivered item has been put.
253 I agree with the plaintiff's contention that the interpretation that is given to the phrase 'has been consigned for use' must be capable of accommodating the diverse means by which industrial waste can be delivered for use. A possible scenario is delivery of waste from a waste producer in one location to a waste receiver in another location with or without a third party waste transporter (as in the present case). Another possible scenario is delivery of waste by the owner of a site from one part of the site for use at another part of the site. In the former case, a contract of some type will govern the transaction whereas in the latter case, it is unlikely that a contract would exist.
254 Although the existence of a contract is not a necessary element of the phrase 'has been consigned for use', where a contract exists, it is obviously important in determining whether the item in question has been consigned for the particular use. The contract may be a single comprehensive written agreement or be partly oral and partly written, with documents such as purchase orders evidencing the written parts.
255 Where, as in the present case, the waste emanates from a waste producer, the question arises as to whether the purpose for which the waste was consigned or delivered is that of the waste producer or the waste receiver. In my opinion, the purpose of a consignment must be that of the person whose waste is being delivered, namely the waste producer. That purpose will usually be the same as the purpose for which the waste receiver received the waste. However, where waste is delivered for a specific purpose but the waste receiver uses the waste for a different purpose, that does not change the purpose for which the waste was delivered. In such a case, the waste was consigned or delivered for the original purpose even if it was ultimately used for a different purpose.
256 The interpretation of the phrase 'has been consigned for use' that I have adopted is consistent with the provisions of pts 2 and 4 of the 2009 Regulations. As discussed at [147] above, pt 2 imposes obligations on the waste producer to assess the options for managing waste in accordance with the wastes hierarchy. As discussed at [182] and [183] above, reg 33 imposes an obligation on the waste producer to include in a waste transport certificate the type of treatment to be received by the waste at the premises of the waste receiver.
257 I have not been assisted by the differences between the definition of 'prescribed industrial waste' in the exposure draft of the 2009 Regulations that was included in the Regulatory Impact Statement and the definition of that phrase in the final version of the 2009 Regulations. It will be recalled that the former definition contained the phrase 'has been consigned by the waste producer to a person to use in manufacturing materials, or to use in processing, handling, or transporting other materials'[73] whereas the italicised words were omitted from the latter definition. These differences are unhelpful because no reasons have been published for the change in the definition. It would be purely speculative to infer that the omission of the words 'by the waste producer' was intended to mean that the purpose of the waste producer was not relevant in ascertaining the purpose for which waste has been consigned. That is not the only inference that is available. Another inference is that it was realised that a reuse could take place on the same site (or different sites) in circumstances where the waste producer and the waste receiver are the same person.
258 It follows that 'has been consigned for use' means 'has been delivered for use' and that the purpose of the delivery must be ascertained by reference to the arrangement between the waste producer and the waste receiver viewed objectively rather than by merely considering the actual use to which the waste was put. As it was common ground that the phrase 'for use' means 'for a direct beneficial reuse', the question that I must determine is whether the Cat C soil has been delivered for a direct beneficial reuse.
Decision on whether the Cat C soil has been consigned for use as a DBR
259 In my opinion, the Cat C soil that the plaintiff reused in the Firewall was not consigned for that use. This is because, notwithstanding the fact that the plaintiff actually used the Cat C soil in the Firewall, viewed objectively, the soil was not delivered for that use.
260 At [255] above, I concluded that the question of whether waste has been consigned for a particular purpose depends on the purpose for which the waste producer delivered the waste to the waste receiver.
261 The contemporaneous documents evidencing the contract for the delivery of Cat C soil from the plaintiff's customers to the plaintiff cannot be construed as creating a contract for the delivery of such soil for reuse in the Firewall. Those documents must be considered in the light of the regulatory scheme under which they are created. So viewed, it is impossible to distil from those documents a contractual obligation to deliver Cat C soil for reuse in the Firewall as distinct from disposal in the landfill at the Site.
262 The process by which Cat C soil has been delivered to the Site, as described at [201] to [218] above, indicates that at no time has a waste producer nominated reuse in the Firewall as the purpose of delivery. On the contrary, in the vast majority of cases, both the waste producer and the plaintiff have nominated 'landfill' as the destination for the Cat C soil.
263 The fact that some waste producers engaged clean-up contractors and that the latter performed some of the functions of the waste producer - such as signing Part A of waste transport certificates - does not alter the legal analysis. A waste producer cannot absolve itself of its statutory obligations by engaging an agent. The acts of an agent relevantly bind the principal in such a situation. Accordingly, references to a waste producer in the discussion that follows should be understood as including a waste producer acting through a clean-up contractor.
264 No document has been tendered which contains any statement or acknowledgement by a waste producer that Cat C soil was being delivered to the Site for use in the Firewall. The only documents in evidence that have been completed by a waste producer - the waste transport certificates - strongly indicate that those individuals arranged delivery of the Cat C soil to the Site for landfill purposes.[74] I reject the plaintiff's submission that 'landfill' is ambiguous and could include the Firewall.
265 The plaintiff has correctly submitted that, where the DBR provisions of the 2009 Regulations are satisfied in respect of the use of Cat C soil, that soil does not constitute 'prescribed industrial waste' and is not subject to various regulatory requirements, including the preparation of waste transport certificates. However, I reject the plaintiff's contention that, as waste transport certificates are not required for soil the subject of a DBR or an SBR, the fact that 'landfill' was selected on such certificates is 'of no moment'.
266 As discussed at [63] to [64] above, the parties conducted the proceeding on the basis that, after 1 July 2009, the provisions of the 2008 Exemption continued to operate according to their terms. Clause 1.6 of the 2008 Exemption requires the plaintiff to comply with regulations dealing with waste transport. In accordance with the manner in which the parties conducted the proceeding, cl 1.6 did not cease to have effect after 1 July 2009 when the status of the 2008 Exemption changed to a Deemed SBR authorisation under reg 48(c) of the 2009 Regulations. Accordingly, waste transport certificates were required and any information in them had to be accurate. It follows that I reject a submission made by the plaintiff that cl 1.6 ceased to have effect after 1 July 2009 in relation to Cat C soil used in the Firewall because that soil was 'exempt material' and no longer 'prescribed industrial waste'. That submission was inconsistent with the manner in which the parties conducted the proceeding. In any event, even if the plaintiff's submission were correct and waste transport certificates were not legally required, they constitute important contemporaneous primary documents that assist in ascertaining the purpose for which Cat C soil was delivered to the Site.
267 Although the waste transport certificates do not contain a specific DBR waste category, they could have been completed by selecting 'Other' as the destination of the Cat C soil. It can be inferred that the waste producers who completed the waste transport certificates considered that the Cat C soil that was being transported to the Site was prescribed industrial waste and that they completed the certificates on the basis that this prescribed industrial waste would be disposed of in a landfill.[75]
268 Regulation 33 of the 2009 Regulations imposes an obligation on waste producers, waste transporters and waste receivers to provide the information required by the waste transport certificate and reg 34 imposes an obligation on those persons to 'supply correct information'. Consistent with those obligations, anyone who inserts information in the waste transport certificate is obliged to turn their minds to the options presented by the certificate and to select that option that most accurately reflects the nature of the waste and its intended use.
269 All the other contemporaneous documents do not assist in establishing that the waste producer's purpose was use of the Cat C soil in the Firewall because they were prepared by the plaintiff.
270 The pre-receipt forms do not assist for that reason and also because the plaintiff's specification of 'Cell F' was not subsequently reflected in the waste transport certificates.
271 The invoices do not assist because they merely record the historical fact that the Cat C soil was used in the Firewall and say nothing about the waste producer's purpose for the delivery. The invoices were generated by the plaintiff after the Cat C soil had been delivered and had come under its direction and control.
272 The tipping weighbridge dockets also do not assist. The fact that the plaintiff opted to specify in some dockets the Firewall as the end use of some Cat C soil does not mean that the arrangement between the waste producer and the plaintiff was that the Cat C soil was consigned for use in the Firewall. Nor does it mean that the arrangement gave the plaintiff unfettered discretion to choose whether to use the Cat C soil in the Firewall or the landfill. Such an open-ended arrangement would have been contrary to pts 2 and 4 of the 2009 Regulations and also inconsistent with the 'landfill' destination selected by the waste producers on the waste transport certificates. The correct analysis of the role of the tipping weighbridge dockets is that they were issued by the plaintiff after the waste producer delivered the Cat C soil to the plaintiff's weighbridge for the purpose of use in the landfill and that they represent a post-delivery instruction to the waste transporter to divert the soil for use in the Firewall.
273 The oral evidence given on behalf of the plaintiff is not inconsistent with the above analysis.
274 As discussed at [216] above, in cross-examination, Mr Tillig agreed that it was the plaintiff, rather than the waste producer, that decided whether Cat C soil delivered to the Site would be used in the Firewall. That decision was based solely on tonnage.
275 The extract from Mr Calleja's affidavit set out at [217] above contains an acknowledgment that it was the plaintiff that determined the use to which Cat C soil was put and also, I would infer, that this use may not be the use for which the waste producer delivered the Cat C soil. The word 'divert' that Mr Calleja used is instructive as it suggests a change in the course of events set in train by the waste producer.
276 Evidence was not given by any of the plaintiff's customers who were waste producers or by any waste transporters. Similarly, evidence was not given by the plaintiff's employees who completed the waste transport certificates. The only inference that is open to me is that all the persons who completed the waste transport certificates took their responsibilities seriously and they completed the certificates accurately and in good faith. There is no evidentiary reason for not accepting the accuracy of the certificates. It follows that the contents of Part A of the certificates accurately reflect the facts from the perspective of the waste producers. This means that the purpose for which waste producers delivered the Cat C soil to the Site was for use in the landfill.
277 It follows from the above that, although Cat C soil has been reused in the Firewall, it was not consigned for that use. It also follows that the exception in para (b) of the definition of 'prescribed industrial waste' in reg 5(1) of the 2009 Regulations was not satisfied. Accordingly, para (b) of that definition does not provide a basis for exemption from the Levy.
Is concurrent operation of a DBR and a Deemed SBR authorisation possible?
278 My conclusions at [138] and [277] above mean that, in terms of the exceptions to the definition of 'prescribed industrial waste' in reg 5(1) of the 2009 Regulations, at present the plaintiff has the benefit of a Deemed SBR authorisation exemption (the 2008 Exemption), but not a DBR exemption. Accordingly, it is not necessary for me to discuss whether it is possible for a DBR exemption to operate concurrently with a Deemed SBR authorisation exemption. However, as the parties made submissions on this issue, I will briefly discuss it.
279 Regulation 5(1) of the 2009 Regulations defines 'direct beneficial reuse' and 'secondary beneficial reuse' as follows:
direct beneficial reuse means use as an input or raw material substitute in a commercial, industrial, trade or laboratory activity without prior treatment or reprocessing.
secondary beneficial reuse means use as an input or raw material substitute in a commercial, industrial, trade or laboratory activity following any form of treatment or reprocessing.
280 It is clear from the above definitions that DBRs and SBRs are mutually exclusive because the former precludes prior treatment or reprocessing whereas the latter requires this.
281 On this basis, the EPA submitted that because use of Cat C soil under the 2008 Exemption has effect as a Deemed SBR authorisation, it cannot simultaneously constitute a DBR. The EPA also submitted that it would be contrary to the 2009 Regulations to treat the plaintiff's use of Cat C soil as an SBR authorisation which is regulated by those regulations and as a DBR which is essentially unregulated.
282 The plaintiff, on the other hand, submitted that, as its use of the Cat C soil is not an actual SBR but is simply deemed to be one as a statutory fiction, it can also constitute a DBR. The plaintiff relied on the fact that at the time that the 2008 Exemption was granted under the 1998 Regulations, those regulations did not provide that the absence of prior treatment or reprocessing of Cat C soil (as was the case with the Cat C soil used in the Firewall) precluded the granting of an exemption. The plaintiff contended that as the absence of prior treatment or reprocessing did not preclude the Cat C soil it used in the Firewall from taking effect as an SBR under reg 48(c) of the 2009 Regulations, if that use satisfied the requirements of a DBR in those regulations, then the Deemed SBR authorisation and the actual DBR could operate concurrently.
283 I accept the EPA's submissions and reject those of the plaintiff. The 2009 Regulations evidence a clear intention that DBRs and SBRs are to be mutually exclusive. The absence of prior treatment or reprocessing would have prevented the plaintiff from obtaining an SBR authorisation under pt 5 of the 2009 Regulations. The statutory fiction that reg 48(c) created on 1 July 2009 was that the Cat C soil used in the Firewall was deemed to satisfy the requirement in the definition of SBR that there was prior treatment or processing. Effect must be given to the statutory fiction.[76] In order to do so, other provisions of the 2009 Regulations could not be interpreted as operating in such a way as to negate that statutory fiction. Accordingly, reg 48(c) precludes the use of Cat C soil in the Firewall from having effect both as an SBR and a DBR.
284 Basic principles of statutory interpretation require that the 2009 Regulations be read as a whole and that its provisions be interpreted in a manner that enables them to operate consistently. An interpretation that would permit the 2008 Exemption to operate concurrently with the DBR provisions of the 2009 Regulations would not give effect to these principles. This is because under the 2008 Exemption the plaintiff is required to pay the Discounted Levy whereas the effect of the DBR provisions is that no Levy is payable.
285 I reject the plaintiff's contention that, in such a situation, it can elect the most favourable outcome. Even if the plaintiff had an entitlement to make such an election, it did not do so on 1 July 2009. Such an election, if it had been open to the plaintiff, could only be exercised by requesting the EPA to revoke the 2008 Exemption in order to permit the DBR provisions in the 2009 Regulations to operate according to their terms.
286 It follows that, while the 2008 Exemption continues to have effect as a Deemed SBR authorisation under reg 48(c) of the 2009 Regulations, the plaintiff's use of Cat C soil in the Firewall cannot constitute a DBR.
Section 50S of the EP Act: 'scheduled premises' and 'deposited on land'
287 It will be recalled from [27] above that the plaintiff alleged that, for the purposes of s 50S of the EP Act, the Firewall did not constitute 'scheduled premises' and the Cat C soil was not 'deposited on land'.
288 In relation to the first allegation, I note that s 4(1) of the EP Act relevantly defines 'scheduled premises' to mean 'any premises ... prescribed by regulation'. The applicable regulations are the Environment Protection (Scheduled Premises and Exemptions) Regulations 2007. Reg 6 of those regulations provides that, 'a premises described in column 2 of the Table in Schedule 1 is prescribed as a scheduled premises.' Column 2 of item A01 in that table contains the description, 'Storage, treatment, reprocessing, containment or disposal facilities handling any prescribed industrial waste not generated at the premises.'
289 The plaintiff's first allegation was not the subject of any submissions and I need not make a decision on it. It appears to be based on the proposition that, although the Firewall was within the land licensed under the EPA Licence, that licence at no time authorised the deposit of waste in the Firewall.[77] Neither party addressed the possible consequences of a finding that the use of Cat C soil in the Firewall was not authorised by the EPA Licence or the impact on that licence of the 2008 Exemption which expressly authorises such use.
290 In relation to the second allegation, the plaintiff submitted that if I were satisfied that it reused Cat C soil in the Firewall as an input or raw material substitute, I could not be satisfied that the Cat C soil was prescribed industrial waste that was 'deposited' on land for the purposes of s 50S of the EP Act.
291 According to the Shorter Oxford English Dictionary, one meaning of 'deposit' as a verb is: 'Put, place or set down'. In my opinion, as a matter of ordinary English and common sense, the Cat C soil was put, placed or set down in the Firewall and was therefore deposited on land. The mere reuse of the Cat C soil does not mean that it ceased to be prescribed industrial waste within the meaning of s 50S of the EP Act. That would only be the case if the Cat C soil 'has a direct beneficial reuse and has been consigned for [that] use' within the meaning of that phrase in the definition of 'prescribed industrial waste'. In the present case, I have held that the Cat C soil that the plaintiff used in the Firewall remained prescribed industrial waste because it was not consigned for use as a DBR.
Is s 20B of the Limitation of Actions Act 1958 a bar to relief?
292 As discussed at [7] above, the plaintiff paid the amount of $3,198,821 to the EPA for the period from 9 June 2010 until 31 March 2011 and, after the latter date, paid a total amount of $13,892,319 into the Designated Account. As the 2008 Exemption applied during the entirety of the period from 9 June 2010 until 31 March 2011, the amount of $3,198,821 comprised payments of the Discounted Levy. Of the amount of $13,892,319 that was paid for the period after 1 April 2011, $2,379,299 represented payments of the Discounted Levy and $11,513,020 represented payments of the Full Levy.
293 The plaintiff seeks to recover the amount of $3,198,821 from the EPA pursuant to the mistake of law principle of restitution and asserts an entitlement to the amount of $13,892,319 in the Designated Account. By counterclaim, the EPA seeks an order that it be paid the amount of $13,892,319 in the Designated Account.
294 My conclusions that the Amendment to the 2008 Exemption is invalid and the Cat C soil was not consigned for use as a DBR mean: first, that the plaintiff did not overpay any amount to the EPA; and, secondly, that the plaintiff overpaid into the Designated Account the difference between the Discounted Levy and the Full Levy in the period since 1 July 2011. However, in case any of my conclusions are wrong, I will discuss the applicability of s 20B of the LA Act in relation to all the payments referred to at [292] above.
Requirements of s 20B of the Limitation of Actions Act
295 The EPA has pleaded s 20B of the LA Act as a complete bar to all of the plaintiff's claims. That section provides as follows:
20B Limitation on recovery of tax or amount attributable to tax
(1) A proceeding to which this section applies is only maintainable to the extent that the person bringing the proceeding (the claimant) satisfies the court that recovery of the money would not result in a windfall gain to the claimant.
(2) For the purposes of subsection (1), recovery of money would not result in a windfall gain to the claimant if -
(a) the claimant has not charged to, or recovered from, and will not charge to or recover from, any other person an amount in respect of that money, whether or not that amount was itemised or otherwise separately identified in any invoice or other document issued by the claimant;
...
(3) This section applies to -
(a) a proceeding between parties of any kind for the recovery of money paid by way of -
(i) tax or purported tax; or
(ii) an amount that is attributable to tax or purported tax -
under a mistake (either of law or of fact) or under colour of authority;
...
(4) In this section -
...
proceeding includes -
(a) seeking the grant of any relief or remedy in the nature of certiorari, prohibition, mandamus or quo warranto, or the grant of a declaration of right or an injunction;
...
tax includes fee, charge or other impost.
296 In respect of all the plaintiff's claims, the following matters were common ground between the parties:
(b) the phrase 'of any kind' in s 20B(3)(a) refers to parties of any kind rather than to a proceeding of any kind;[80]
(c) this proceeding falls within the definition of 'proceeding' in s 20B(4); and
(d) the Levy falls within the definition of 'tax' in s 20B(4).
297 In respect of the plaintiff's restitution claim for recovery of the amount of $3,198,821, the following matters were common ground between the parties:
(a) this is a proceeding to which s 20B of the LA Act applies within the meaning of s 20B(3)(a);[81]
(b) the plaintiff had the onus of establishing that recovery of the amount of $3,198,821 would not result in a windfall gain to it; and
(c) in order for the plaintiff to discharge this onus, it must establish that it has not charged to, or recovered from, any person an amount in respect of the Levy it has paid to the EPA.
298 The parties disagreed about whether the plaintiff's claim in respect of the amount of $13,892,319 was subject to s 20B of the LA Act. The EPA contended that this proceeding, insofar as it related to the amount of $13,892,319, was for the recovery of money paid by way of tax or an amount that is attributable to tax, under colour of authority. The plaintiff, on the other hand, submitted that the amount of $13,892,319 was paid into the Designated Account neither by way of tax nor as an amount attributable to tax, but rather to provide security for the payment of the Levy in the future in the event that it was unsuccessful in this proceeding.
299 In respect of the plaintiff's restitution claim, there are two issues. The first is whether the plaintiff paid the amounts to the EPA voluntarily in the sense discussed in cases such as David Securities Pty Ltd v Commonwealth Bank of Australia[82] and Hookway v Racing Victoria Ltd.[83] This issue is discussed at [308] to [313] below. The second issue is whether recovery of the amount of $3,198,821 would result in a windfall gain to the plaintiff. This issue is discussed at [314] to [335] below.
300 In respect of the plaintiff's claim to the amount of $13,892,319, there are two issues. The first issue is whether, insofar as it concerns that claim, this is a proceeding to which s 20B of the LA Act applies. Pursuant to s 20B(3), that issue depends on whether the amount of $13,892,319 was 'paid by way of ... tax or ... an amount that is attributable to tax ... under ... colour of authority'. The second issue is whether recovery of that amount would result in a windfall gain to the plaintiff.
301 The plaintiff's claims to the amounts of $3,198,821 and $13,892,319 will be discussed separately below. At this point it is useful to set out the evidence about the process by which the plaintiff sets its 'gate rate', being the rate that it charged for Cat C soil brought onto the Site.
Factual issue: The process by which the plaintiff sets its gate rate
302 Mr Calleja gave evidence concerning the manner in which the plaintiff sets the rate paid by customers for delivering a load of Cat C soil to the Site. According to Mr Calleja, the plaintiff is required to build the Firewall in order to operate its landfill business, and therefore must offer a gate rate discount to attract sufficient Cat C soil to construct the Firewall at the same pace as the landfill increases. Given that most Cat C soil originates at commercial sites in inner city Melbourne, the plaintiff is required to set a discounted gate rate which encourages its customers to choose the Site rather than an alternative landfill closer to Melbourne which would involve lower transport costs.
303 Mr Calleja said that the plaintiff has charged a gate rate for Cat C soil based on the 'competitive market conditions', the need to 'service an established customer base', and the need to 'attract sufficient material to satisfy [its] firewall construction program.' In the period from 19 March 2008 to 31 December 2010, the plaintiff charged a gate rate of between $74 per tonne and $90 per tonne, excluding GST. The plaintiff has generally charged the same rate regardless of whether a particular load was to be used in the Firewall or deposited in a landfill cell. While at least one of the plaintiff's competitors offered a gate rate at certain times of below $74 in the relevant period, the plaintiff did not do so. The plaintiff did not seek to offer the lowest rate in the market. Rather, the plaintiff set its prices 'at the highest level [it] thought the market would support'. As stated at [214] above, the invoices issued by the plaintiff do not refer to the Levy.
304 In cross-examination, Mr Calleja was asked a series of questions concerning whether external costs, including the Levy, are incorporated into the gate rate set by the plaintiff and its competitors. The following exchange took place:
Question: [T]he aim is to make a profit is it not for each of you in the industry?
Answer: Correct.
Question: You're in it for business?
Answer: Yeah
Question: And so therefore if there are costs that can be identified you can expect that they will be embedded in the gate fee ... is that correct?
Answer: Yes.
Question: And so whatever the cost might be it should be able to be identified as a component part of the underlying cost of that business? Would that be correct?
Answer: Correct.
...
Question: The cost that the competitor might face might, if they have [not] got a levy exemption, would be the payment of a levy? That would be correct wouldn't it?
Answer: That's correct.
Question: And so when all your competitors in the marketplace set their gate fee, just as they would take into account transport, they are more likely than not to take into account the levy that they must pay? Would that be correct?
Answer: Correct.
...
Question: And again the starting point with all those competitors is that like you they're taking into account the costs, which are incurred in the conduct of your business. That's correct?
Answer: That's correct.
...
Question: When determining the gate fee for Maddingley at Bacchus Marsh, do you have regard to the levy of five-eighths per tonne ... that you have to pay to the [EPA]. Is that a figure that's taken into account as an external cost?
Answer: Yes.
305 Mr Gregory Houston, an economist, was called by the plaintiff to give expert evidence about the manner in which the plaintiff sets its gate rate. Based on instructions received from the plaintiff, Mr Houston formed the opinion that the plaintiff sets its gate rate by reference to the market price. The market price is set by reference to the cost of the highest cost landfill operator that is needed to meet the needs of customers. In Mr Houston's opinion, the market price would be affected by the Full Levy, because the operator with the highest costs would be required to pay the Full Levy, and would take this into account in setting its own gate rate. However, the plaintiff's gate rate would not be directly affected by the Discounted Levy it paid. In cross-examination, Mr Houston stated that he was sure that the plaintiff is 'anxious to assure that ... as a business its prices [cover] its costs.'
306 Dr Joseph Pickin, also an economist, was called by the EPA to give expert evidence about the manner in which the plaintiff sets its gate rate. Dr Pickin had not been to the Site and did not have any detailed information about the plaintiff's actual costs of running its landfill business. In Dr Pickin's opinion, market price is a relevant consideration for the plaintiff in setting its gate rate. In cross-examination, Dr Pickin agreed that the gate rate charged by the plaintiff during 2010 was 'principally determined' or 'very highly influenced' by the market price which reflected the Full Levy paid by the plaintiff's competitors, rather than the Discounted Levy paid by the plaintiff. Dr Pickin said that if the plaintiff was charging the market price reflecting the Full Levy, it can be reasonably concluded that the plaintiff was also charging the Discounted Levy.
307 Unlike Mr Houston, Dr Pickin considered that a landfill operator would not set its gate rate solely by reference to the market rate. Rather, a landfill operator would also take into account its cost structure, including any Levy payable. Accordingly, it was highly unlikely that the plaintiff did not consider costs, such as the Discounted Levy, in setting its rates. In Dr Pickin's opinion, if an operator's costs were well below the market price, the consideration given to those costs in setting the gate rate 'would be very small' but it would not be appropriate to state that the costs were irrelevant.
Restitution claim for the amount of $3,198,821 paid to the EPA for the Levy
308 As stated at [7] and [8] above, the plaintiff claims that it is entitled to restitution of the amount of $3,198,821 paid to the EPA for Cat C soil used in the Firewall between 9 June 2010 and 31 March 2011 on the ground that the money was paid under a mistake of law. Although I have held that there was no mistake of law, in case I am wrong, I will discuss the EPA's contention that the plaintiff is not entitled to restitution of the amount of $3,198,821 it paid to the EPA on the basis that it was paid voluntarily.
309 In David Securities Pty Ltd v Commonwealth Bank of Australia,[84] a majority of the High Court - Mason CJ, Deane, Toohey, Gaudron and McHugh JJ - set out the following test of voluntariness:
The payment is voluntary or there is an election if the plaintiff chooses to make the payment even though he or she believes a particular law or contractual provision requiring the payment is, or may be, invalid, or is not concerned to query whether payment is legally required; he or she is prepared to assume the validity of the obligation, or is prepared to make the payment irrespective of the validity or invalidity of the obligation, rather than contest the claim for payment. We use the term 'voluntary' therefore to refer to a payment made in satisfaction of an honest claim, rather than a payment not made under any form of compulsion or undue influence.[85]
310 In Hookway v Racing Victoria Ltd,[86] the Court of Appeal followed David Securities. Ormiston JA, with whom Warren CJ and Harper AJA agreed, described two broad categories of voluntary payments derived from the analysis in David Securities:
One may start with compromises and other bargains by way of settlement. Secondly, one may take from the quotation ... from David Securities the other payments 'in satisfaction of an honest claim' dividing that second class into the various kinds of payments described earlier as voluntary being:
(a) payments where the payer believes a particular law or contractual obligation is invalid but chooses to pay;
(b) payments where the payer believes that the law or obligation may be invalid but chooses to pay;
(c) payments where the payer pays but is not concerned to query whether the payment is required at law;
(d) payments where the payer is prepared to assume the validity of the obligation and therefore pays; and
(e) payments where the payer in making payment is prepared to do so 'irrespective of the validity or invalidity of the obligation' and chooses not to contest the claim for payment.
... the five categories to which I have referred each involve some conscious decision on the part of the payer to make payment regardless of the legal obligation. It would follow that, if such a payment is made in ignorance of the legal position and in circumstances where it has not been shown that some such conscious decision has been made, then the party subsequently discovering that the payment was made under a mistake of law may, at least since the decision in David Securities, sue to recover the sum paid.[87]
311 In his affidavit, Mr Calleja referred to the requirement to pay the Discounted Levy in cl 1.7 of the 2008 Exemption, and stated:
I assumed EPA had power to impose that obligation and duly paid the levy in accordance with this condition for all Category C soils deposited to the firewall from 19 March 2008 to 30 December 2010.
...
[The plaintiff] has made payments to the EPA, for the use, from 1 March 2008 to 31 March 2011, of Category C soils in the construction of the firewall.
The payments were made 3 months in arrears. [The plaintiff] last made a regular payment in respect of Category C contaminated soil used in the construction of the firewall on 31 March 2011. That payment was for category C contaminated soils used in the construction of the firewall between 1 October 2010 and 31 December 2010. [The plaintiff] also made a further once off payment on 30 September 2011, for category C contaminated soil used in the construction of the firewall between 1 January 2011 and 31 March 2011.
[The plaintiff] has refused to make any payment for Category C contaminated soils used in the construction of the firewall since 31 December 2010 as I no longer believe there is a legal obligation to make such payments.
312 The context indicates that Mr Calleja used the word 'assumed' in the sense that, in respect of payments for use of Cat C soil in the Firewall prior to 31 December 2010, the plaintiff considered whether it was under a legal obligation to pay the Discounted Levy and formed a positive belief that it was subject to such an obligation.
313 Accordingly, the amounts the plaintiff paid to the EPA for Cat C soil used in the Firewall prior to 31 December 2010 were not made voluntarily. However, any amounts that the plaintiff paid to the EPA were voluntary insofar as they related to the use of Cat C soil in the Firewall after 31 December 2010. That will be the position regarding the 'once off payment' that the plaintiff made on 30 September 2011 for Cat C soil used in the Firewall from 1 January 2011 until 31 March 2011 if that payment was made to the EPA.[88]
314 In essence, the plaintiff's case on the issue of whether recovery would result in a windfall gain involved the following propositions:
(a) the plaintiff did not take into account the Discounted Levy it paid in setting its gate rate;
(b) the plaintiff's gate rate was a uniform rate for Cat C soil used in the Firewall and Cat C soil disposed of in the landfill even though the former attracted the Discounted Levy and the latter attracted the Full Levy;
(c) the plaintiff set its gate rate by reference to the market rate;
(d) the market rate was set by the gate rates charged by the plaintiff's competitors;
(e) the plaintiff's competitors took into account the Full Levy that they paid in setting their gate rates;
(f) although the plaintiff's gate rate indirectly took into account the Full Levy that its competitors paid, there was no nexus between the amount claimed by way of restitution, which represents the Discounted Levy, and the plaintiff's gate rate;
(g) it follows that the plaintiff has not charged to, or recovered from, its customers 'an amount in respect of' the Discounted Levy, that is, the amount of $3,198,821; and
(h) it also follows that recovery of the amount of $3,198,821 would not result in a windfall gain to the plaintiff.
315 In my opinion, the plaintiff's reasoning is logically flawed and, more importantly, inconsistent with the provisions of s 20B of the LA Act. Implicit in the plaintiff's reasoning is that the phrase 'in respect of that money' in s 20B(2)(a) requires exact equivalence between the amount of the Levy charged to or recovered from customers and the amount sought to be recovered from the EPA. On this basis if customers are charged an amount for the Levy which greatly exceeds the amount of the Levy actually paid to the EPA, then recovery of the amount paid to the EPA would not result in a windfall gain. Such an outcome could not possibly be correct, as it would undermine the obvious intention of s 20B.
316 The simple fact is that, as the plaintiff had an advantage that its competitors did not have, namely an exemption that enabled it to pay the Discounted Levy, all other things being equal, it was able to enjoy a higher profit margin than its competitors because it based its gate rate on the market rate which in turn reflected the Full Levy rather than the Discounted Levy. In other words, the plaintiff was able to charge to, or recover from, its customers an amount in respect of the Levy which exceeded the amount it paid for the Levy. If the plaintiff were to succeed in recovering the amount of the Discounted Levy that it paid to the EPA, it would receive an amount which was included within the amount it has charged to, or recovered from, its customers.
317 The expression 'in respect of that money' in s 20B(2)(a) of the LA Act involves a simple question: did the plaintiff charge to or recover from its customers the additional cost it incurred in paying the Discounted Levy? The answer to that question is that the plaintiff adopted a gate rate that resulted in the plaintiff recovering from its customers an amount that reflected the Full Levy. As the greater Full Levy includes the lesser Discounted Levy, it must follow that the plaintiff recovered from its customers the Discounted Levy.
318 On the basis of Mr Calleja's evidence set out at [302] to [304] above, it is clear that, in fixing its gate rate for Cat C soil, the plaintiff took into account not only the market rate established by its competitors but also the plaintiff's own costs, including its obligation to pay the Discounted Levy. Accordingly, there was a nexus between the plaintiff's gate rate and the Discounted Levy. That nexus means that the plaintiff has failed to discharge the onus of establishing that it has not charged to, or recovered from, its customers an amount in respect of the Discounted Levy.
319 The above conclusion is consistent with the High Court decision in Avon Products Pty Ltd v Commissioner of Taxation (Cth).[89] In that case, the High Court was required to decide whether the appellant was entitled to a credit for overpaid sales tax pursuant to the Sales Tax Assessment Act 1992 (Cth). It was not in dispute that the tax had been overpaid. However, entitlement to a credit was limited to '[t]he amount overpaid, to the extent that the claimant has not passed it on'. The phrase 'passed it on' was not defined in the applicable legislation, and thus needed to be interpreted according to its ordinary meaning.
320 In Avon Products, the appellant determined a 'regular price' for its products after undertaking a cost analysis with a breakdown of all costs, including sales tax. The 'regular price' was required to exceed the maximum estimated cost by an acceptable profit margin, and was benchmarked against competitors' prices and what the market would bear. The regular price did not change in response to various changes over time to the taxable values for the goods upon which sales tax was payable. However, the majority of products were sold at discounted prices during marketing campaigns, each with a separate, gross profit margin for all products sold during that campaign. Discounted prices were set in advance of each campaign, to enable the appellant to meet its gross profit margin for that campaign, while still covering costs, including sales tax.
321 The High Court stated that businesses seeking to make a profit will generally set prices so as to ensure that at least all foreseeable costs are recovered and will thus generally pass on sales tax. Leaving aside rare cases in which sales tax is separately identified and superadded to an invoice after sale, sales tax can only be passed on indirectly through the price mechanism.[90] The Court stated:
[T]he question is to be approached with reference to the actual conduct of the seller in setting prices based upon its actual knowledge at the relevant time. That knowledge includes the belief that the component of sales tax which later proves to have been an overpayment is a real cost of doing business. Accordingly, it is unsurprising that a seller's intention, whether subjective or objectively ascertained, will generally be to pass the burden of the impost on to the purchaser. Since the onus of proof lies upon the taxpayer, it will be for it to establish that a price which is set so as to ensure that it recovers its costs does not include the economic burden of the sales tax.[91]
322 The Court rejected the appellant's contention that a tax has only been passed on if the price at which the goods are sold is increased by the amount of the tax. The Court also rejected the contention that, since the appellant's regular prices remained constant and were fixed by reference to market benchmarks without reference to cost, it did not pass on the sales tax. The Court did not accept this approach because it assumes that if a cost is being passed on, removing it from the entire system will have an immediate correlative effect on price and profit.[92] The Court concluded that, as the appellant had set its regular and discount prices at a level to ensure that they exceeded costs, including sales tax, it had failed to discharge its onus of establishing that it had borne the burden of the overpaid tax itself and had not passed it on to its customers.[93]
323 Avon Products is to be contrasted with the earlier decision of the Victorian Court of Appeal in Drake Personnel Ltd v Commissioner of State Revenue (Vic).[94] In that case, the Court was required to consider whether the Drake group of companies ('Drake') was entitled to refunds of payroll tax. Drake maintained a register of temporary workers, and supplied its clients with the services of those workers. Drake charged its clients a fee for the workers' services and paid the workers a portion of that fee. The Commissioner of State Revenue had levied payroll tax on Drake in respect of payments it made to the temporary workers, on the basis that those payments were 'wages' within the meaning of the Pay-roll Tax Act 1971.
324 Drake contended that the payments were not properly characterised as 'wages'. Section 22 of the Taxation Administration Act 1997 was in similar terms to s 20B of the LA Act, and prohibited the refund of payroll tax unless the Commissioner of State Revenue was satisfied that the employer had not charged to or recovered, and would not charge or recover, the tax from another person. The word 'charge' was defined in that Act to include 'pass on'.
325 There was evidence at trial to the effect that Drake included in its fees to clients a 'generalised margin to cover all on-costs' and when there were occasional increases in the imposts payable by Drake, those increases were absorbed in what otherwise would have been the profit margin. This generalised margin included payment of payroll tax, together with profit, a WorkCover levy, a superannuation benefit and other costs. As such, payroll tax was but one consideration in calculating the margin.[95]
326 The Court of Appeal found that the payments made by Drake were taxable wages on which payroll tax was due. Phillips JA, with whom Buchanan JA agreed, stated that Drake would presumably not have known until the end of each year whether its generalised mark-up had proved sufficient to yield a profit that made the carrying on of business worthwhile. His Honour said:
The impact of payroll tax on what otherwise would have been profit would then be one consideration; but that does not seem to me to mean, even if Drake's only source of income were the amounts paid by the clients, that the clients were 'charged' the payroll tax within the meaning of ... s 22, or that the amount of payroll tax was 'recovered' from them or 'passed on' to them.[96]
327 Phillips JA commented that it was difficult to see why Drake should be caught by s 22 of the Taxation Administration Act 1997 only because it had regard to imposts when calculating its mark-up, unless the calculation of the charge to the client was more specific than the evidence suggested.[97] Ormiston JA agreed with Phillips JA's conclusion on this point, but wished to strike a note of caution in relation to the connotation, in other circumstances, of the expression 'pass on' contained in s 22 of the Taxation Administration Act 1997.[98]
328 In the present case, the plaintiff relied on the comments of Phillips JA referred to at [327] above and contended that what is required in order to satisfy s 20B of the LA Act is that the calculation of a particular charge be 'more specifically related' to the impost in question than was evident in Drake.
329 In my opinion, the plaintiff's reliance on Drake is misplaced. The evidence in Drake was insufficient to establish a nexus between the tax and the price charged to customers. The case, however, does not stand for the proposition that there must be an exact correlation between the tax and the cost passed on to customers. In any event, such a proposition was rejected by the High Court in Avon Products.
330 There are good reasons why an exact correlation is not necessary. If it were necessary, an unscrupulous taxpayer who sought to profiteer from a tax by passing on to customers an amount that exceeded the tax could not be held to have made a windfall gain if the taxpayer were to recover the amount of the tax. That result would clearly be absurd and could not have been intended by the Court of Appeal in Drake.
331 In Avon Products, the High Court adopted a more generalised approach to the relationship between the relevant tax and price than was adopted by the Victorian Court of Appeal in Drake. The facts in the present case more closely resemble those in Avon Products than Drake. In my opinion, the principles in Avon Products inexorably mean that the plaintiff has failed to discharge its onus of satisfying me that it has not charged to, or recovered from, its customers the amount of the Discounted Levy. The undisputed evidence was that the plaintiff's gate rate indirectly incorporated the Full Levy, which, as I have explained, must mean that the gate rate involved recovery from the plaintiff's customers of the Discounted Levy. Implicit in Mr Calleja's evidence is that the plaintiff set its gate rate to cover its costs and make a profit. In any event, it is clear that the plaintiff did not bear the economic burden of the Discounted Levy. Rather, it passed that burden on to its customers by recovering from them the Full Levy.
332 I have been able to arrive at the above conclusions based on the plaintiff's direct evidence about how it fixed its gate rate and have not been assisted by the opinions of the parties' experts, Dr Pickin and Mr Houston. Those opinions were no more than the experts' articulation in economists' language of their understanding of the underlying facts.
333 In any event, both experts agreed that the plaintiff's gate rate indirectly passed on to customers the Full Levy. As I have explained above, because the greater must include the lesser, the gate rate necessarily involved recovering the Discounted Levy from customers.
334 In the light of the express terms of s 20B(2)(a) of the LA Act, the fact the plaintiff's invoices do not mention the Levy is not material.
335 It follows that the plaintiff has failed to discharge the onus of satisfying me that it has not charged to, or recovered from, any person an amount in respect of the money paid to the EPA for the Discounted Levy. Accordingly, I am not satisfied that the recovery of the amount of $3,198,821 would not result in a windfall gain to the plaintiff. This means that the plaintiff's claim for that amount is barred by s 20B(1) of the LA Act.
Claim for the amount of $13,892,319 paid into the Designated Account
Emerton J's order dated 28 November 2011 and correspondence preceding it
336 Emerton J's order dated 28 November 2011 was made by consent 'on the papers'. The order relevantly provides:
OTHER MATTERS:
(a) During the period 1 January to 30 June 2011 ('the First Period'), the Plaintiff deposited Category C soil into the area known as 'the firewall' at the Plaintiff's landfill at Bacchus Marsh ('the firewall').
(b) From 1 July 2011 ('the Second Period'), the Plaintiff has continued and will continue to deposit Category C soil into the firewall.
(c) In respect of the First Period, the Defendant alleges that the Plaintiff must pay [the] landfill levy in respect of 5 out of 8 tonnes of Category C soil deposited into the firewall, at the prescribed industrial waste levy rate.
(d) In respect of the Second Period, the Defendant alleges that the Plaintiff must pay the landfill levy in respect of every tonne of Category C soil deposited into the firewall, at the prescribed industrial waste levy rate.
(a) exercising any right of set off or other rights that it may have in respect of the Designated Account prior to or after the date of this Order;
(b) enforcing or exercising any right or interest existing now or in the future in relation to the Designated Account;
(c) debiting the Designated Account with any interest, fees, costs and charges in accordance with the Bank's terms and conditions.
...
(a) the quarter 1 January to 31 March 2011;
(b) the quarter 1 April to 30 June 2011;
(c) the quarter 1 July to 30 September 2011.
(a) details of the amount of Category C soil (in tonnes) that was deposited or estimated to be deposited into the firewall in that quarter;
...
(c) any other information the Defendant might reasonably require to enable it to determine the amount of landfill levy it is alleged the Plaintiff is liable for ...
337 Emerton J's order was preceded by correspondence between the parties which is summarised below.
338 On 23 August 2011, the EPA wrote to the plaintiff stating its position that there was a Levy amount of $760,068.95 outstanding for the period from 1 January 2011 until 31 March 2011, and that as a result, it was satisfied that it was entitled to suspend the EPA Licence pursuant to s 50XB(1) of the EP Act. On 31 August 2011 the EPA wrote to the plaintiff agreeing to a proposal that the plaintiff had made that the plaintiff commence a declaration proceeding. The EPA's letter set out the two issues to be dealt with in the declaration proceeding, namely, whether the amount of $760,068.95 was payable in respect of the Levy, and whether the deposit of Cat C soil in the Firewall was a DBR or an SBR, and if so, whether it was subject to the Levy. The EPA's letter also stated that the EPA retained a discretion to take 'other action as appropriate'.
339 On 12 September 2011, the plaintiff agreed to initiate a declaration proceeding and proposed to amend its existing statement of claim to encompass the declarations sought by the EPA. On 15 September 2011, the EPA wrote to the plaintiff accepting the plaintiff's proposal to initiate the declaration proceeding. The EPA's letter stated that the plaintiff was 'in non-compliance' with the EP Act as a result of its continuing use of Cat C soil in the Firewall and non-payment of the outstanding Levy amount. However, the EPA stated that it would not take any licence suspension or injunction action while the proposed proceeding was on foot.
340 On 25 October 2011, the EPA stated that, given its position that the plaintiff was required to pay the Levy, it required a 'formal financial arrangement' in the context of the proceeding. This was intended to ensure that, should the Court find the plaintiff liable to pay the Levy, the amount payable would be 'available'. It was proposed that the plaintiff establish a separate bank account into which all Levy amounts collected since 1 January 2011 would be paid, and provide monthly reports to the EPA on matters including the quantity of Cat C soil deposited in the Firewall, the amount of Levy collected and the amounts paid into the bank account. The EPA sought the plaintiff's agreement to have these arrangements formalised in a consent order.
341 The plaintiff responded on 27 October 2011, stating that it agreed with the EPA's proposal, but did not consider a consent order to be necessary. Eventually, however, the plaintiff agreed to the making of Emerton J's order by consent on the papers.
342 In his affidavit in support of the consent order, the EPA's solicitor, Mr Mark Payton, stated that the parties were seeking the order 'for the purpose of ensuring that the money in dispute is kept secure in a designated account.'
Does s 20B apply to the claim for the money in the Designated Account?
343 The question of whether s 20B of the LA Act applies to the plaintiff's claim for the money in the Designated Account depends on whether this proceeding, insofar as it concerns that claim, is a proceeding that falls within s 20B(3)(a). The components of that provision need to be considered in turn.
344 The plaintiff contended that the money was not 'paid' because the EPA did not receive it. However, as s 20B(3)(a) of the LA Act does not specify any particular recipient of the money that is 'paid', payment into the Designated Account means that the money was 'paid'.
345 Similarly, the plaintiff contended that this is not a proceeding for the 'recovery of money' because the money has not been paid to the EPA and therefore an order is not required compelling the EPA to repay the money. I reject this contention. The plaintiff paid the money into the Designated Account in accordance with Emerton J's order, which provides that the plaintiff is not entitled to the money unless the EPA agrees or the Court so orders. As the EPA will not agree, the only way in which the plaintiff can withdraw the money from the Designated Account and deal with it as its own, is by virtue of a Court order. As the plaintiff is seeking in this proceeding an order that it is entitled to withdraw the money in the Designated Account, it is seeking recovery of that money.
346 It was common ground that the payments that the plaintiff made into the Designated Account were not made under either a mistake of law or of fact. The payments were made pursuant to the terms of Emerton J's order. Although the plaintiff did not concede that the payments it made into the Designated Account were made under the colour of authority, it is clear that it would not have made those payments had it not been for the EPA's insistence that it do so in respect of Levy payments that the EPA maintained that the plaintiff was liable to make. Accordingly, in my view, the payments were made under colour of authority.[100]
347 The plaintiff has not suggested that either the Discounted Levy set out in the 2008 Exemption or the Levy set out in s 50S of the EP Act, is unlawful. Accordingly, each is a tax rather than a purported tax.
348 The key remaining issue is whether, insofar as it concerns the plaintiff's claim to the money in the Designated Account, this proceeding is for the recovery of money 'paid by way of ... tax ... or ... an amount that is attributable to tax'.
349 In my opinion, insofar as it relates to the money in the Designated Account, this proceeding does not concern the recovery of money paid by way of tax. That is because the plaintiff has disputed its liability to pay the Levy and has refused to pay the Levy to the EPA. Accordingly, in order for s 20B of the LA Act to apply to the plaintiff's claim to the money in the Designated Account, that claim must be for the recovery of money paid by way of an amount that is attributable to tax.
350 I am satisfied that the plaintiff's claim to the money in the Designated Account, insofar as it corresponds to payments due for the Discounted Levy, is for the recovery of money paid by way of an amount that is attributable to tax. As I have concluded that the 2008 Exemption continues in force, the plaintiff has continued to be liable to pay the Discounted Levy rather than the Full Levy. However, the EPA has insisted that the plaintiff pay the Full Levy for Cat C soil used in the Firewall since 1 July 2011. The position regarding the difference between the Full Levy paid by the plaintiff for Cat C soil used in the Firewall since 1 July 2011 and the Discounted Levy that was lawfully payable ('Overpayment') is discussed at [369] to [370] below. What follows is subject to that discussion.
351 According to the Shorter Oxford English Dictionary, 'attributable' means 'able to be attributed to, owing to' and one of the meanings of 'attribute' as a verb is 'ascribe to'.
352 The authorities establish that, while the phrase 'attributable to' requires a causal connection between two subjects, it need not be a sole, dominant, direct or proximate causal connection.[101]
353 According to Emerton J's order, the amounts paid by the plaintiff into the Designated Account are 'equivalent to the amounts of levy alleged by the [EPA] to be payable' by the plaintiff. Pursuant to that order, the plaintiff is obliged to calculate and account for those amounts as if they were payments of the Levy. The substitution of the Designated Account for the EPA as the recipient of the payments pursuant to Emerton J's order has not altered the plaintiff's obligations in respect of the Levy. It can thus be said that those amounts are equivalent to - and therefore represent or are able to be attributed to - the Levy.
354 Had it not been for the EPA's demands that the plaintiff pay the precise amounts deposited into the Designated Account, which represent the amounts of Levy claimed by the EPA as payable, the plaintiff would not have paid those amounts into the Designated Account. Accordingly, it can be said that the plaintiff paid those amounts into a Designated Account owing to the EPA's demands for the payments of those amounts as Levy.
355 The fact that the purpose of the payments into the Designated Account is to provide a fund as security for any liability this Court may find the plaintiff owed to the EPA in respect of the Levy is not inconsistent with the above conclusion. The plaintiff has parted with the precise amounts that the EPA has demanded as payment of the Levy and therefore those amounts were paid into the Designated Account as amounts attributable to the Levy.
356 It follows from the above that this proceeding is a proceeding to which s 20B of the LA Act applies.
Would recovery of the money in the Designated Account result in a windfall gain?
357 The amount of $2,379,299 that was paid into the Designated Account for the period from 1 April 2011 until 30 June 2011 was based on the Discounted Levy. Accordingly, that amount raises the same issues as those discussed at [308] to [335] above in respect of the amount of $3,198,821 paid to the EPA. For the reasons set out in those paragraphs, I am not satisfied that recovery of the amount of $2,379,299 would not result in a windfall gain to the plaintiff.
358 The amount of $11,513,020 that was paid into the Designated Account for the period from 1 July 2011 until 30 June 2013 was based on the Full Levy. The plaintiff did not make submissions on the issue of whether recovery of this amount would result in a windfall gain. In this regard, I note that the evidence discussed at [302] to [307] above indicates that the plaintiff set its gate rate by reference to the market rate, which indirectly incorporated the Full Levy.
(a) the plaintiff has failed to discharge the onus of satisfying me that it has not charged to, or recovered from, any person an amount in respect of the money in the Designated Account;
(b) accordingly, I am not satisfied that recovery of that money would not result in a windfall gain to the plaintiff; and
(c) the plaintiff's claim for that money is barred by s 20B(1) of the LA Act.
Is Order 56 of Chapter 1 of the Rules a barrier to relief?
360 The EPA submitted that the plaintiff's applications for declarations of invalidity in respect of the Amendment to the 2008 Exemption, the Confirmation of Amendment to the 2008 Exemption and the 2011 Classification were, in substance, applications for orders in the nature of certiorari and that those applications were barred by O 56 of the Supreme Court (General Civil Procedure) Rules 2005 ('Rules') because they were not filed within the 60 day time limit set out in r 56.02(1).
361 Order 56 of the Rules is titled 'Judicial Review'. Rule 56.01 stipulates that subject to any Act, the jurisdiction of the Court to grant 'any relief or remedy in the nature of certiorari, mandamus, prohibition or quo warranto shall be exercised only by way of judgment or order'. Pursuant to rr 56.01-2, such a proceeding must be commenced by originating motion, 'within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose.'
362 The EPA submitted that the plaintiff commenced this proceeding by writ and statement of claim filed on 7 June 2011 because the plaintiff had failed to commence O 56 judicial review proceedings within 60 days of the making of the impugned decisions. Given that the plaintiff is seeking declarations that these decisions were 'of no effect', the EPA sought to characterise the relief sought as being 'in the nature of certiorari'.
363 The EPA submitted that the present case can be distinguished from Minister for Youth and Community Services v Kew Cottages & St Nicholas Parents' Association Ltd.[102] In that case, Phillips JA stated that a particular remedy does not become 'relief in the nature of' another remedy for the purposes of O 56 of the Rules only because the effect of the remedies 'may be like', and that declarations and injunctions are not directly affected by the constraints found in O 56.[103] His Honour added, however, that this did not go so far as to preclude a reference being made to the time limits for claiming certiorari and mandamus, and the general purport of O 56, in the context of an argument against the exercise of discretion to grant an injunction or a declaration.[104] Both Callaway and Hedigan JJA agreed that declarations and mandatory injunctions are not within the purview of O 56 because they are not remedies 'in the nature of' certiorari, mandamus, prohibition or quo warranto.[105]
364 In my opinion, Kew Cottages cannot be distinguished. The plaintiff has sought relief by way of declaration rather than an order in the nature of certiorari. Accordingly, if the plaintiff otherwise establishes an entitlement to a declaration, the fact that the relief was not sought within the time specified by r 56.02(1) of the Rules for prerogative relief cannot be an automatic bar to the making of the declaration. In the present case, the delay between the making of the impugned decisions and the commencement of this proceeding seeking declaratory relief does not enliven any discretionary grounds for refusing to grant that relief.
Should declaratory relief be refused on discretionary grounds?
365 The EPA submitted that, even if the plaintiff established a proper legal basis for the granting of declaratory relief, such relief should be refused on discretionary grounds. The grounds upon which the EPA relied included inconsistency with various policies and interstate approaches to waste management, and diminution of revenue from the Levy.
366 I agree with the plaintiff that the EPA's submission misunderstands the nature of the judicial discretion to refuse declaratory relief.
367 In Ainsworth v Criminal Justice Commission,[106] the High Court reiterated the established principle that superior courts have inherent power to grant declaratory relief. In a joint judgment, Mason CJ, Dawson, Toohey and Gaudron JJ stated the following about such relief:
It is a discretionary power which '[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise.' However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have 'a real interest' and relief will not be granted if the question 'is purely hypothetical', if relief is 'claimed in relation to circumstances that [have] not occurred and might never happen' or if 'the Court's declaration will produce no foreseeable consequences for the parties'.[107]
368 The grounds upon which the EPA relied do not provide any foundation for refusing declaratory relief to the plaintiff where it has established a legal basis for such relief.
369 As discussed at [350] above, at the EPA's insistence, the plaintiff has paid into the Designated Account amounts equivalent to the Full Levy for use of Cat C soil in the Firewall since 1 July 2011 when it was only obliged to pay amounts equivalent to the Discounted Levy. The Overpayment has arisen because of my finding that the 2008 Exemption continues in force.
370 As the parties did not anticipate the precise findings that I have made, they did not make detailed submissions about the applicability and effect of s 20B of the LA Act in relation to the Overpayment. Accordingly, before making final orders, I will give the parties an opportunity to make submissions on this issue.
Use of immobilised and treated Cat C soil in the Firewall
371 In the period that is relevant to this proceeding, namely from 9 June 2010 until 30 June 2013, the plaintiff's authority to use Cat C soil in the Firewall was predominantly limited to solid inert Cat C soil. However, in the period from 25 August 2009 until 11 March 2011, the plaintiff was authorised by the EPA to also use immobilised Cat C soil by an amendment to the 2008 Exemption. Immobilised Cat C soil is soil that has attained Cat C status by a form of treatment that has immobilised the contaminants in the soil. In the period from 1 July 2010 until 1 August 2012, the plaintiff also used in the Firewall other treated Cat C soil.
372 While the pleadings specifically mention the immobilised Cat C soil and the other treated Cat C soil referred to at [371] above, the parties' submissions have not identified how, if at all, the use of that soil affects the issues requiring resolution in this proceeding. The only exceptions appear to be, first, that the immobilised Cat C soil and the other treated soil cannot satisfy the 'without prior treatment or reprocessing' requirement in the definition of 'direct beneficial reuse'; and, secondly, the use of the other treated soil in the Firewall may have been unauthorised. In case I have misunderstood the position, I will give the parties an opportunity to make submissions on the immobilised Cat C soil and the other treated soil before I make final orders.
373 For the above reasons, I propose to make declarations to the following effect:
(a) The Amendment to the 2008 Exemption is invalid.
(b) The 2008 Exemption continues to have effect as an SBR authorisation.
374 In the light of the outstanding matters referred to at [369] to [372] above, I will adjourn the further hearing of the proceeding to enable the parties to consider this judgment and make further submissions on those matters, on the precise form of the orders to be made by this Court to reflect my conclusions, and on the question of costs.
[3] The plaintiff does not claim repayment of any amounts it paid to the EPA prior to 9 June 2010 as it accepts that such a claim would be statute barred under s 20A of the Limitation of Actions Act 1958.
[8] At [332] below, I explain why I was not assisted by the disputed evidence of two of the experts. Although I have considered the evidence of the other experts, I have not found it necessary to expressly identify any part of it. I note, however, that my conclusions have not been influenced by the evidence of the environmental consultant, Mr David Maltby, upon which the plaintiff relied.
[9] An amendment to the approved work plan on 19 November 1999 maintained the requirement for the Firewall.
[10] On 16 December 2010, conditions were added to the Mining Licence, one of which specified a Firewall that was 13.5 metres wide.
[12] The plaintiff was the only landfill operator in Victoria authorised to pay less than the Full Levy.
[14] Section 19A(3A) of the EP Act relevantly dealt with works approvals.
[15] Section 20(3A) of the EP Act relevantly dealt with licences.
[16] Section 19A of the EP Act relevantly deals with works approvals.
[17] Section 20 of the EP Act relevantly deals with licences.
[24] Best Practice Environment Management.
[26] [1973] VicRp 56; [1973] VR 583 ('Pearce').
[27] Pearce [1973] VicRp 56; [1973] VR 583, 587.
[28] Pearce [1973] VicRp 56; [1973] VR 583, 588.
[29] [2001] VSC 506 (20 December 2001) ('McEachern').
[30] McEachern [2001] VSC 506 (20 December 2001) [17], [20].
[31] McEachern [2001] VSC 506 (20 December 2001) [19].
[32] McEachern [2001] VSC 506 (20 December 2001) [21].
[33] [1998] HCA 28; (1998) 194 CLR 355 ('Project Blue Sky').
[35] Project Blue Sky [1998] HCA 28; (1998) 194 CLR 355, 388-9 [91].
[36] Project Blue Sky [1998] HCA 28; (1998) 194 CLR 355, 388-9 [91].
[37] Project Blue Sky [1998] HCA 28; (1998) 194 CLR 355, 389-90 [92]-[93].
[38] Project Blue Sky [1998] HCA 28; (1998) 194 CLR 355, 390 [93].
[39] [1986] HCA 40; (1986) 162 CLR 24 ('Peko-Wallsend').
[41] Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24, 39-43.
[42] Love v Victoria [2009] VSC 215 (23 June 2009) [191] ('Love').
[43] Love [2009] VSC 215 (23 June 2009) [191]; Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24, 40.
[45] See, eg, R v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170, 233 ('Toohey').
[46] See National Tertiary Education Industry Union v Commonwealth [2002] FCA 441; (2002) 117 FCR 114, 145 [120].
[47] Toohey [1981] HCA 74; (1981) 151 CLR 170, 233.
[48] Love [2009] VSC 215 (23 June 2009) [182].
[49] Thompson v Council of the Municipality of Randwick [1950] HCA 33; (1950) 81 CLR 87, 106; Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board (1982) 41 ALR 467, 468-9; Warringah Shire Council v Pittwater Provisional Council (1992) 26 NSWLR 491, 507-11; East Melbourne Group Inc v Minister for Planning [2008] VSCA 217; (2008) 23 VR 605, 683 [337]; Hunter v Minister for Planning [2012] WASC 247 (5 July 2012) [24]-[27].
[50] The plaintiff preferred the phrase 'extraneous purpose' to the traditional phrase 'improper purpose'. For convenience, I will use the traditional formulation.
[51] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 ('Wednesbury').
[52] The CEO of the EPA, Mr John Merritt, who made the decision to amend the 2008 Exemption, stated in his affidavit that he approved the recommendation in the 10 March 2011 Briefing Note after considering the information in the briefing note.
[55] Wednesbury [1947] EWCA Civ 1; [1948] 1 KB 223.
[56] The 'Soil Hazard Categorisation and Management' document upon which the EPA relied was not a classification but a guide for use by waste producers.
[57] Although the plaintiff pleaded that the EPA failed to take into account as a relevant consideration the absence of any adverse environmental risk arising from the plaintiff's use of Cat C soil, the plaintiff made no submissions on this issue. Any submissions in support of this pleaded allegation would have been misconceived because the 2011 Classification was a general instrument applying throughout Victoria to all contaminated soil and was not confined to the plaintiff's use of Cat C soil.
[61] I have disregarded partially completed certificates.
[66] [2012] NSWLEC 216 (21 September 2012) ('Terrace').
[67] Terrace [2012] NSWLEC 216 (21 September 2012) [205]-[209].
[68] Criminal Proceedings against Marco Antonio Saetti and Andrea Frediani (Court of Justice of the European Union, C-235/02, 15 January 2004).
[69] As recorded in an EPA internal briefing note of that date.
[70] See the 7 April 2011 Briefing Note, set out in part at [83] above. A draft EPA internal memorandum dated 30 January 2008 suggested that the plaintiff's use of Cat C soil in the Firewall did not satisfy the definition of 'waste reuser' in the 1998 Regulations. That definition is set out at [53] above.
[71] [1966] WAR 74 ('Metters').
[72] Metters [1966] WAR 74, 79.
[76] Serdzeff v Victorian Workcover Authority [2005] VSCA 320; (2005) 14 VR 43, 53-4 [30].
[80] This is made clear in the second reading speech for the Limitation of Actions (Amendment) Bill 2004: Victoria, Parliamentary Debates, Legislative Assembly, 298-300 (Rob Hulls, Attorney-General).
[81] The EPA's primary contention, which I have upheld, was that the Discounted Levy was properly payable and that there was no mistake of law or fact.
[82] [1992] HCA 48; (1992) 175 CLR 353 ('David Securities').
[83] [2005] VSCA 310; (2005) 13 VR 444 ('Hookway').
[85] David Securities [1992] HCA 48; (1992) 175 CLR 353, 373-4.
[87] Hookway [2005] VSCA 310; (2005) 13 VR 444, 460-1 [41] (citations omitted) (emphasis in original).
[88] The parties' submissions are not entirely clear on whether the 'once off payment' was made to the EPA or to the Designated Account.
[89] [2006] HCA 29; (2006) 230 CLR 356 ('Avon Products').
[90] Avon Products [2006] HCA 29; (2006) 230 CLR 356, 362-3 [9].
[91] Avon Products [2006] HCA 29; (2006) 230 CLR 356, 363 [11] (emphasis in original).
[92] Avon Products [2006] HCA 29; (2006) 230 CLR 356, 366 [23]-[24], [26].
[93] Avon Products [2006] HCA 29; (2006) 230 CLR 356, 365-6 [21]-[22].
[94] [2000] VSCA 122; (2000) 2 VR 635 ('Drake').
[95] Drake [2000] VSCA 122; (2000) 2 VR 635, 662-3 [70]-[71].
[96] Drake [2000] VSCA 122; (2000) 2 VR 635, 663 [71].
[97] Drake [2000] VSCA 122; (2000) 2 VR 635, 663 [72].
[98] Drake [2000] VSCA 122; (2000) 2 VR 635, 639 [6].
[99] 'MBC' is an abbreviation for Maddingley Brown Coal.
[100] Bryan A Garner (ed), Black's Law Dictionary (Thomson Reuters, 9th ed, 2009) defines 'colour of authority' as: 'The appearance or presumption of authority sanctioning a public officer's actions. The authority derives from the officer's apparent title to the office or from a writ or other apparently valid process the officer bears': at 302.
[101] Roncevich v Repatriation Commission [2005] HCA 40; (2005) 222 CLR 115, 126 [27], 133 [56]; Gilkinson v Repatriation Commission [2011] FCAFC 133; (2011) 284 ALR 226, 228-9 [6]; NSW Coal Compensation Board v NSW Coal Compensation Tribunal [1997] NSWCA 231 (29 July 1997) 7.
[102] (1996) 10 VAR 293 ('Kew Cottages').
[103] Kew Cottages (1996) 10 VAR 293, 297.
[104] Kew Cottages (1996) 10 VAR 293, 297-8.
[105] Kew Cottages (1996) 10 VAR 293, 299, 302.
[106] [1992] HCA 10; (1992) 175 CLR 564 ('Ainsworth').
[107] Ainsworth [1992] HCA 10; (1992) 175 CLR 564, 581-2 (citations omitted).
Maddingley Brown Coal Pty Ltd
Environment Protection Authority [2013] VSC 582
(1998) 194 CLR 355
(1986) 162 CLR 24
(1981) 151 CLR 170
(2002) 117 FCR 114
(1950) 81 CLR 87
(1982) 41 ALR 467
(1992) 26 NSWLR 491
(2008) 23 VR 605
(2005) 14 VR 43
(2001) 208 CLR 516
(1994) 182 CLR 51
(1992) 175 CLR 353
(2005) 13 VR 444
(2006) 230 CLR 356
(2000) 2 VR 635
(2005) 222 CLR 115
(2011) 284 ALR 226
(1992) 175 CLR 564