Plaintiff v First Defendant

1 By summons filed 14 March 2025, the Plaintiff, the Environment Protection Authority Victoria (the 'EPA'), seeks various interim orders pursuant to section 310 of the Environment Protection Act 2017 (the 'Act') to restrain the First and Second Defendants from certain activity and to enforce their lawful compliance with the Act.

2 The Second Defendant, Mr Angelodemou, is the sole director of the First Defendant, Renex Op Co Pty Ltd ('Renex'). Renex operates an integrated waste treatment and resource recovery facility which receives, stores and treats prescribed waste at 109-‍131 Ordish Road, Dandenong South (the 'Premises').

3 The EPA alleges that it has made discoveries which causes it to believe that Renex has been treating soil contaminated with asbestos in an unpermitted manner, and has acted contrary to the conditions of its existing permissions and the Act. Specifically, the EPA alleges that there is a strong prima facie case that Renex:

(a) has failed to keep records as required under one of the conditions of its Operating Licence,[1] in breach of section 63(1) of the Act;

(b) is treating soil containing asbestos without a development licence as required under sections 44(1)(a)-(b) of the Act;

(c) has breached section 135(2) of the Act by transporting waste soil containing asbestos to other premises where there are no permissions for those premises to receive waste of that kind;

(d) has aided, abetted or procured, or otherwise knowingly been involved in, a breach of section 133(1) of the Act by depositing industrial waste at premises not authorised to receive it in breach of section 316(1)(b) and/or section 316(1)(d) of the Act; and

(e) is handling and/or storing asbestos in a way that contravenes its general environmental duty under section 25(1) of the Act.

4 The orders specifically sought by the EPA would require the Defendants to:

(a) provide the EPA, within three days of the proposed interim order, an inventory detailing the location, categorisation, contaminant composition, and waste code of all materials located on the Premises;

(b) sample, verify, and classify all materials leaving the Premises in order to comply with their duty under section 135(2) of the Act, until further order of the Court;

(c) provide to the EPA on a weekly basis, until further order of the Court:

(i) an inventory detailing the location, categorisation, contaminant composition, and waste code of all materials[2] located on the Premises since the last inventory;

(ii) records detailing the transporter, intended receiving location, categorisation, contaminant composition, and waste code (if any) of all materials leaving the Premises;

(iii) copies of analytical testing results for all batches of all materials leaving the Premises;

(iv) records detailing the quantity of materials found or suspected of containing asbestos, and details of how the materials were managed on the Premises; and

(v) records detailing the source, categorisation, contaminant composition, and waste code of all materials that were refused for receival at the Premises, and how those materials were managed on the Premises;

(d) cease accepting all materials declared to be asbestos, or declared to be asbestos containing material, however described, until such time as Renex is appropriately licensed or permitted to treat asbestos on the Premises; and

(e) remove all asbestos or asbestos containing materials to licensed facilities as soon as practicable after they are received at the Premises.

5 The orders sought by the EPA rely on the Court's power to make orders in the style of an injunction under the Act and not by virtue of the Court's inherent jurisdiction.

6 The power to grant an injunction under the Act is contained in section 309:

(1) On an application by the Authority or an eligible person, a Court may make an order restraining a person from engaging in specified conduct or requiring a person to take any specific action, in such terms as the Court considers appropriate, if the Court is satisfied that a person -

(a) is not complying or has not complied with a permission issued or granted under this Act; or

(b) is contravening or has contravened any other requirement or duty imposed on the person by or under this Act.

(2) Without limiting subsection (1), an order under that subsection may -

(a) require a person to do a specified act or thing that the Court considers reasonably necessary to prevent, minimise or remedy the contravention or non‑compliance; or

(b) require a person to provide a financial assurance as a condition for engaging in specified conduct.

(3) The Authority or an eligible person may apply for an order under subsection (1) whether or not proceedings have been taken for -

(a) an offence against this Act or the regulations; or

(b) a contravention of a civil penalty provision under this Act.

(4) The power of a Court to grant an order under subsection (1) may be exercised whether or not the contravention or non‑compliance -

(a) is likely to result in harm to any person or the environment; or

(b) is likely to result in an infringement of the rights of any person.

(5) An application for an order under subsection (1) may be made ex parte.

7 Section 310 of the Act empowers the Court to make interim orders pending the determination of an application under section 309. It provides as follows:

(1) On the application of the Authority or an eligible person, a Court may make an interim order, in such terms as the Court considers appropriate, pending the determination of an application under section 309.

(2) An application for an interim order under subsection (1) may be made ex parte.

(3) If the Court has determined to grant an interim order under subsection (1), the Court must not, as a condition of granting the interim order, require the Authority to give any undertaking as to damages or costs.

8 Ordinarily, in order to persuade the Court that an interim injunction should be granted, a party must establish that there is a serious question to be tried, that damages would not be a sufficient remedy, and that the balance of convenience favours the granting of the order. In the ordinary course, an injunction would require an undertaking as to damages to be given by the moving party. However, the order sought by the EPA is brought pursuant to section 310 of the Act, and section 310(3) provides that the EPA is not required to give the usual undertaking.

9 The source of the Court's power to make an order under sections 309 and 310 of the Act is derived from the legislation, and not from the Court's inherent power to grant an injunction.[3] The legislation adopts or modifies the characteristics of an injunction at common law or in equity. The power to grant an injunction under the Act is expressed in wide terms and confers a broad discretion on the Court.[4]

10 It is notable that the power to grant an order under section 309(1) is exercisable even if proceedings have not been commenced for offences against the Act or for contraventions of civil penalty provisions.[5] Further, the Court may grant an order under section 309(1) regardless of whether the contravention or non‑compliance is likely to result in harm to a person or the environment or is likely to result in the infringement of the rights of any person.[6] These statutory modifications to the usual considerations relevant to the grant of an injunction must be carefully considered. They have the potential to be draconian if not used with care, particularly given the modification of the requirement to give an undertaking as to damages which would normally follow from the exercise of discretion to grant injunctive relief.

11 Renex, by the matters it seeks to rely upon in the exercise of discretion to grant interim relief, appears to draw a distinction between the matters which are relevant to an order under section 309 as compared to section 310. In particular, the reference to the weight to be given proof of harm to humans or the environment and any consequential financial and reputational impact of an order being made, would seem to be inconsistent with the terms of sections 309(3) and (4).

12 Section 310 explicitly relieves the EPA from the requirement to give an undertaking as to damages or costs but, as noted by Renex, section 310 is not expressed in the same terms as section 309, in particular, with regards to the text in sections 309(3) and (4).

13 It is, in my view, an artificial distinction. The power exercisable under section 310 on an interim basis relies on a claim being made under section 309. Consequently, there is a clear interconnection between the power granted to the Court in the exercise of discretion in respect of a final order, and the considerations relevant to the exercise of discretion under the interim power arising from section 309.

14 Given the observations above, the consequent correct approach to the exercise of the Court's power to grant an injunction under the Act is subject to the following constraints:

(a) the scope and purpose of the Act;

(b) that there must be sufficient connection or relationship between the contravention and the injunction granted; and

(c) the injunction granted must relate to the case or controversy which is the subject of the proceeding.[7]

15 The EPA submitted that the test to be applied in determining an application for an interim injunction under the Act are those considerations usually considered applicable for an interim injunction in equity. However, the Court's discretionary power under the Act is not limited by equitable principles and factors relevant to the exercise of the discretion, but will also be informed by the subject matter and purpose of the Act. Drawing a parallel to consumer legislation, by reference to Australian Competition and Consumer Commission v IVF Finance Pty Ltd (No 2),[8] the EPA submitted that the injunctive power under the Act is part of a regulatory regime and that sections 309 and 310 are public interest provisions that involve matters of public policy.[9]

16 The EPA submitted that in determining whether to grant an interim injunction in equity, the Court addresses itself to two main enquiries; whether the Plaintiff has a prima facie case and whether the balance of convenience favours the grant of the injunction sought. In exercising the power to grant an injunction under the Act, it is not necessary for the Court to be satisfied that future non‑compliance with the Act is threatened (section 309(3)); and no evidence is required of any harm, or likely harm, to any person or the environment or any likely infringement of anyone's rights (section 309(4)).

17 Renex did not take issue with the principles concerning injunctions and interlocutory injunctions. However, the Defendants did note that while the Court has the power to grant a (final) injunction under section 309 of the Act, whether or not the contravention is likely to result in harm to any person or the environment, it is difficult to conceive of circumstances where the Court would grant an interlocutory injunction under section 310 when no harm is likely to result from the alleged non‑compliance. This was said to be because, in assessing the balance of convenience, an important consideration will be the likelihood of harm, having regard to the objectives and purposes of the Act. The Defendants also noted that section 310 does not contain a provision to the effect of section 309(4).

18 In addition, the Defendants emphasised several further matters in respect of an interim injunction which are as follows:

(a) interim injunctions are reserved for cases of real urgency. The plaintiff must adduce evidence indicating that delay caused by the proceeding in the ordinary way would or might entail irreparable damage; and

(b) in seeking interim relief, a plaintiff regulator, in the position of the EPA, ought to lay all material facts known to them before the Court and nothing should be suppressed.

19 Apart from these additional observations by the Defendants, the parties accept that the guiding principles in determining whether to grant an interim injunction are broadly that:

(a) whether the plaintiff has demonstrated there is a serious question to be tried; and

(b) whether the balance of convenience favours the granting of an injunction.[10]

20 In terms of the form of injunctive relief, the Court is empowered under section 309(2) of the Act to make such an order in terms the Court considers appropriate and may make an order requiring a person to do a specified act or thing that the Court considers reasonably necessary to prevent, minimise, or remedy the contravention or non‑compliance. Section 310(1) of the Act allows the Court to make an interim order in such terms as the Court considers appropriate, pending the determination of an application under section 309.

21 The power to grant an injunction and an interim injunction under the Act is wide. The Act has modified the usual considerations which the Court would take into account in the granting of injunctive relief. The Act is relatively new and the extent of the Court's injunctive powers in this regard are untested. Some of the matters raised by the Defendants may have more traction if this application were made under the inherent jurisdiction of the Court, such as the risk of harm issue and the impact on the balance of convenience on rights of others notwithstanding no breach or prosecution for breach has been proved. The key consideration in interpreting the powers under sections 309 and 310 of the Act must be driven by the purpose of the legislation and the legislative framework that the Act establishes. The scope and purpose of the Act are informed by the legislation itself. At section 1 of the Act, the purposes of the legislation relevant to this application are set out. They are as follows:

The main purposes of this Act are -

...

(e) to set out principles of environment protection; and

(f) to set out the legislative framework for the protection of human health and the environment from pollution and waste; and

(g) to provide for a general environmental duty to minimise risks of harm to human health and the environment from pollution or waste; and

(h) to establish a permissions scheme that enables the Environment Protection Authority to issue or grant development licences, operating licences, pilot project licences, permits and registrations; and

(i) to provide a framework for the management of waste; and

...

(k) to enable the Environment Protection Authority and authorised officers to ensure compliance with the Act and require action to manage risks of harm to human health and the environment from pollution or waste; and

(l) to provide for a system of criminal and civil penalties; and

(m) to provide for a system of civil remedies and compensation orders available to the Court.

22 Of significance in characterising the purpose and scope of the Act is Chapter 2, which specifies the principles of environment protection. Section 11 provides that it is 'the intention of Parliament that in the administration of this Act and the regulations regard should be given to the principles specified in this Chapter.'

23 Part 2.3 of the Act sets out the 'principles of environment protection'. These 11 principles are set out as follows:

(a) the principles of integration of environmental, social and economic considerations;[11]

(b) the principle of proportionality;[12]

(c) the principle of primacy of prevention;[13]

(d) the principle of shared responsibility;[14]

(e) the principle of polluter pays;[15]

(f) the principle of waste management hierarchy;[16]

(g) the principle of evidence‑based decision‑making;[17]

(h) the precautionary principle;[18]

(i) the principle of equity;[19]

(j) the principle of accountability;[20] and

(k) the principle of conservation.[21]

24 The effect of these provisions are relevant to the manner in which the Court should assess the scope and purpose of the legislation and the powers in sections 309 and 310, which are the focus of this application. I agree with the EPA that the injunctive power under the Act is part of a regulatory regime and that sections 309 and 310 are public interest provisions that involve matters of public policy.[22] I am reinforced in this view by reference to section 11 of the Act which expressly refers to Parliament's intention that regard should be given to the principles of environment protection specified in Chapter 2 of the Act.

25 The EPA submits that it had a strong prima facie case on the merits and that, on the balance of convenience, favours the making of the interim orders. In particular, because the orders sought have the effect of requiring Renex to comply with its obligations under the Act, and given the risk of asbestos, it is in the public interest to mitigate such risks for the benefit of human health and the environment.

(a) the affidavit of Lachlan Andrew Northey sworn 25 March 2025;

(b) the affidavit of Viranga Ramyanil Abeywickrema sworn 26 March 2025 and addendum affidavit sworn 24 April 2025; and

(c) the affidavits of Greta Sandow sworn 23 May 2025 and 6 June 2025.

27 The EPA also relied on its written submissions filed 6 June 2025 and its reply submissions filed 14 July 2025.

28 The Defendants reject the EPA's claims of contravention and contend that the EPA has failed to demonstrate that there is a serious question to be tried in respect of any of the claims made in the Second Amended Statement of Claim filed 3 June 2025 ('SASOC'), which is the basis of the claim made against the Defendants brought pursuant to section 309 of the Act.

29 The Defendants argue that the balance of convenience does not weigh in favour of granting the interim relief sought because of:

(a) the weakness of the EPA's claim;

(b) the lack of an unacceptable risk to human health or the environment;

(c) the harm to Renex's business in being unable to deal with soil contaminated by asbestos; and

(d) the public interest in Renex continuing to operate its business and remain available in the market to treat asbestos contaminated soils to avoid untreated soils going to landfill, and to avoid the costs associated with the development and infrastructure projects for other companies if Renex is taken out of the relevant markets.

30 The Defendants also submitted that the Court ought not grant the relief in circumstances where the EPA has delayed seeking relief, withheld material facts from the Court, and failed to accept reasonable offers by the Defendants to furnish it with documents prior to trial which would allow the EPA to monitor the risks it alleges in these proceedings.

31 The Defendants further assert that an injunction should not be granted as the asbestos issue can be managed and appropriately mitigated pending trial.

(a) the affidavits of Megan Louise Lee dated 24 March 2025, 23 May 2025 and 25 May 2025;

(b) the affidavit of Anish Chandy dated 3 July 2025;

(c) the affidavit of Christopher Tancock dated 4 July 2025;

(d) the affidavit of Paul Nield dated 4 July 2025 and 7 July 2025;

(e) the affidavit of Bradley de Clase dated 7 July 2025;

(f) the affidavit of Luke Denham dated 7 July 2025;

(g) the affidavit of Ken Mival dated 1 July 2025, which includes his expert reported dated 27 June 2025; and

(h) the expert report of Steven Bos dated 7 July 2025.

33 The Defendants also relied on its lengthy written submissions filed 7 July 2025 and its defence filed 30 June 2025.

34 There is little doubt that the underlying breaches alleged by the EPA are hotly contested by Renex. Moreover, the terms of the interim relief sought are also challenged by the Defendants as being too wide and unworkable.

35 According to records held by the EPA, the EPA submits that Renex holds three active permissions, being:

(a) Permit P000301253 for prescribed activity A16,[23] which is valid from 13 December 2023 to 13 December 2028 (the 'Permit');

(b) Operating Licence OL000127068 for prescribed activity A01,[24] which is valid from 30 June 2016 to 31 December 9999 (the 'Operating Licence'). The Operating Licence allows the integrated thermal waste treatment facility to accept, store, and treat prescribed industrial waste, including contaminated soil, and thermal recovery of hydrocarbons; and

(c) Development Licence DL000010066 for prescribed development activity A01 which is valid from 15 June 2012 to 31 December 9999 (the 'TTD Licence').[25] The TTD Licence permits the construction of a facility to accept, store, and thermally treat contaminated soil and prescribed industrial waste or reportable priority waste, excluding asbestos, in accordance with an EPA accepted works approval plan.

36 It was submitted that the following three conditions in the Operating Licence are relevant to the present proceeding:

Condition OL_WA01

Condition OL_WA01 provides that Renex must ensure:

(a) that only waste of a type shown in Appendix 4, to the Operating Licence, is accepted at the [Premises] (the Permitted Waste); and

(b) if any waste has been received at the [Premises] that is not Permitted Waste, that waste must "be placed in a designated and sign‑posted temporary storage area and sent for disposal to a site licenced by the Authority to receive such waste within 21 days after it was received.'

Condition OL_WA02

Condition OL_WA02 provides that the Permitted Waste may only be treated or disposed of in accordance with Appendix 4 to the Operating Licence.

Condition OL_G05

Condition OL_G05 provides that Renex must develop a risk management and monitoring program for its activities which:

(a) identifies all the risks of harm to human health and the environment which may arise from Renex's activities at the [Premises];

(b) clearly states Renex's environmental performance activities;

(c) clearly defines Renex's risk control performance objectives;

(d) describes how the environmental and risk control performance objectives are being achieved;

(e) identifies and describes how Renex will continue to eliminate or minimise the risks in (a) (above) so far as reasonably practicable (SFARP); and

(f) describes how the information collated in compliance with this clause, is or will be disseminated, used or otherwise considered by Renex or any other entity.

1. The risk management and monitoring program must be:

(a) documented in writing;

(b) signed by a duly authorised officer of the licensed entity; and

(c) made available to the Authority on request.

37 Appendix 4 of the Operating Licence outlines waste that is permitted to be received at the Premises ('Permitted Waste'). Permitted Waste includes waste classified as, or with a waste code of N120, being:

Soil that has contaminant concentrations exceeding the upper limits for fill material contaminant concentrations specified in the Waste Disposal Categories - Characteristics and Thresholds or contains asbestos.

38 The thermal treatment of contaminated soil under the TTD License does not include asbestos, as outlined at [35(c)] above.

39 Pursuant to condition OL_G05 of the Operating Licence, Renex developed a program for the risk management of asbestos containing material inadvertently received at the Premises. Renex's program is detailed in two documents, a 'Management of Asbestos Contaminated Material' sheet (the 'Management Sheet**'**) and a 'Contaminated Material Information Sheet' (the 'Information Sheet').

[O]ur [thermal treatment] process does not get hot enough, therefore we cannot process asbestos containing materials. Putting non‑friable chips of asbestos sheet into the process will cause the structure of chip[s] to break down causing it to become friable, this will result in the dust exiting the process in normal conditions to become even more dangerous than it currently is.

Any contaminated asbestos that is received will have to be quarantined and picked prior to processing through the thermal treatment plant.

41 The Management Sheet provides the purpose and scope of the risk management program and outlines that:

(a) any inadvertently delivered asbestos discovered at the Premises shall be recorded in the Asbestos Register;

(b) any contaminated material containing asbestos that is received will have to be quarantined and picked prior to processing through the thermal treatment plant;

(c) more than 10m² of non‑friable asbestos or friable asbestos must be removed by someone who is appropriately licenced to remove the asbestos;

(d) 10m² or less of non‑friable asbestos can be removed by an employee of Renex where the task can be completed in less than 60 minutes;

(e) employees of Renex must wear personal protective equipment when removing asbestos (including Powered Air Purifying Respirators);

(f) all asbestos contaminated material removed by employees of Renex must be placed in double zip lock bags or purpose made asbestos removal bags and placed in the designated storage over‑drum labelled 'ASBESTOS STORAGE - Awaiting Disposal'; and

(g) when the over‑drum is full, a licenced removalist shall be engaged by Renex to remove to a licenced disposal facility as soon as reasonably practicable.

42 Renex receives large volumes of waste containing asbestos. In an assessment of waste tracking data for the period of 1 February to 14 December 2024, the EPA identified that Renex received a total of 543,533.60 tonnes of waste comprising 111,057.32 tonnes of waste containing asbestos, and 541,821.51 tonnes of waste with waste code N120 of which 109,969.24 tonnes contained asbestos.

43 Authorised officers employed by the EPA ('EPA AOs') carried out an inspection at the Premises on 24 May 2024, during which an EPA AO made discoveries which indicated that Renex was using equipment, such as a screen machine, to sieve large volumes of soil containing asbestos.

44 On 24 May 2024, EPA AOs tracked a tipper truck filled with soil from the Premises to Green Sand Recycling Pty Ltd located at 68-‍76 O'Grady Road, Hallam, Victoria ('Green Sand'). Subsequently, on 21 May 2025, using the same tracking method, EPA AOs found that soil containing asbestos was transported from the Premises and deposited at premises located at 109 Tyabb‑Tooradin Road, Somerville, Victoria ('Somerville'). Neither receiving premises contained permission to receive asbestos contaminated material.

45 On 9 December 2024, the company secretary of Renex, Mr Anish Chandy, told EPA AOs that Renex did not keep formal records of reportable priority waste.

46 On the basis of the above discoveries, the EPA believes that Renex is treating soil containing asbestos by operating equipment, such as a screen machine, to abate the asbestos and potentially blending the contaminated soil with other soil and waste.

47 The Operating Licence allows Renex to treat contaminated soil using thermal treatment using a facility and process developed under the TDD Licence. However, Renex does not hold a development licence for the treatment of soil contaminated with asbestos using a screen machine and/or for blending asbestos contaminated soil with other wastes or soil. On this basis, the EPA submitted that there is a strong prima facie case of non‑compliance with the Act.

48 The EPA relies on the allegations contained in the SASOC in respect of the breaches alleged.

49 The Defendants submit that Renex operates in accordance with the terms of the Operating Licence, which allows it to engage in the prescribed operating activity of A01 (reportable priority waste Management).[26] The Operating Licence was last amended by the EPA pursuant to the Act on 21 February 2024.

50 It was submitted that the EPA's belief that Renex currently holds a TTD Licence is misconceived. This was said to be so based on the following analysis of the sequence of permissions:

(a) Renex was first granted a licence to operate its facility under section 20 of the Environment Protection Act 1970 (the 'Old EP Act') on 30 June 2016 ('Discharge Licence**'**). This became the Operating Licence at the commencement of the Act.

(b) Before the EPA granted Renex a licence under section 20 of the Old EP Act, the EPA had issued a Works Approval on 9 November 2009 under section 19B of the Old EP Act. The Works Approval related solely to matters of construction, not operational matters. The Works Approval expired when the EPA issued the Discharge Licence on 30 June 2016 under section 20 of the Old EP Act. Accordingly, the transitional provisions have no operation, as Renex did not hold a Works Approval 'immediately before the commencement day' of the Act on 1 July 2021.[27]

(c) Therefore, to have issued the Discharge Licence to Renex on 30 June 2016, the EPA must have been satisfied that the works to which the Discharge Licence related were satisfactorily completed in accordance with the Works Approval,[28] and according to paragraph (a) of condition WA_G4.1.1 of the Works Approval, it expired 'on the issue or amendment of a licence relating to all works covered by the works approval'.

51 The Defendants submitted that there is no evidence to suggest that any Works Approval remained in force at the time the Discharge Licence was issued and therefore a TTD Licence is not presently in existence. As a consequence, the relevant permission is the Operating Licence which, as set out below, authorises Renex to treat soil contaminated with asbestos.

The Operating Licence permits treatment of soil contaminated with asbestos

52 The Discharge Licence issued under the Old EP Act authorised Renex to treat former waste codes N119 (Category A contaminated soil), N120 (Category B contaminated soil) and N121 (Category C contaminated soil). Previously, there was no separate code for Category A, B or C soil containing asbestos. Therefore, the Discharge Licence allowed Renex to treat Category A, B and C soil containing asbestos. The Operating Licence permitted the same treatment of the same soil types.

53 The EPA amended the Operating Licence pursuant to section 472(1) of the Act on 29 October 2021 which allowed Renex to accept, treat and dispose of waste of the types in accordance with the codes set out in Appendix 4 as set out in Condition OL_WA01 referred to at [36] above. This definition had the effect of allowing Renex to expand to treat Category D soil contaminated with asbestos and soil containing asbestos as the only contaminant, to produce fill material under the conditions of the Operating Licence. The Appendix 4 waste acceptance table includes waste code N120 which has the waste description set out at [37] above.

54 Waste code N120 is broader than former waste codes N119, N120 and N121 in that it includes Category D soil contaminated with asbestos and soil with asbestos as the only contaminant, above the fill material criteria. Consequently, on and from 29 October 2021, Renex was licensed not only to treat Category A, B and C soil which was also contaminated with asbestos, but also Category D soil contaminated with asbestos and soil with asbestos as the only contaminant (i.e. all soil with new waste code N120). It was authorised by the Operating Licence to treat N120 soils using 'physical treatment' as distinct from 'thermal treatment' which is a different treatment code.

Systems for abating asbestos contaminated soil

55 Renex developed its process and systems for treating contaminated soils, including asbestos contaminated soils, prior to the commencement of the Act. Renex has an integrated management system ('IMS**'**) which includes over 300 documents. The IMS predates the introduction of the Act, but the documents within it are updated to reflect any amended licence conditions. Renex has also refined its process over time to reflect the practices of managing soil contaminated with asbestos under the statutory occupational health and safety framework.[29]

56 Since the introduction of the Act,[30] the occupational health and safety statutory framework is complemented by the framework of the Act, regulations and guidelines issued by the EPA. This statutory framework is comprehensively described in Australian Recycling Corporation Pty Ltd v Environment Protection Authority.[31]

57 Broadly, Renex's procedures provides for the following:

(a) only non‑friable asbestos may be received for treatment by Renex;

(b) upon receipt, asbestos contaminated soil is segregated from other material to enable asbestos abatement to occur;

(c) if asbestos is found in material after receipt (where it was not identified on incoming waste records), it is also then segregated from other material to enable abatement to occur;

(d) the abatement of asbestos contaminated soil is performed by licensed asbestos removal contractors, not by staff of Renex (as required by the occupational health and safety statutory framework); and

(e) clearance certificates are issued by independent hygienists once soil has been abated and before staff of Renex deal any further with the soil.

58 Additionally, in accordance with the framework in the Act in relation to fill material:

(a) following abatement, the soil is sampled by trained staff employed by Renex and the sampling results will inform next steps: either further treatment by Renex to remove or reduce other contaminants, or consignment of the abated soil offsite as fill material (subject to the following);

(b) before any soil is consigned offsite as fill material, Renex arranges an environmental consultant to classify the material and provide a report based on the analytical results, to establish the correct classification of the soil as fill material; and

(c) Renex has arrangements with reputable transporters for fill material to be consigned offsite. It provides the classification reports for the material to the transporters and the report is then forwarded to the receiving site who engage their own processes to ensure they are authorised to receive the material.

59 Since 5 July 2018, a 'material screener' has been referred to in Renex's procedures, to separate out oversized material and create size fractions for soil that can then be more easily inspected for asbestos. The equipment used by Renex is mobile in nature, and does not require construction or installation on the premises. The screens used for abatement of asbestos are the same type of screens that Renex uses for the pre‑treatment of soils that do not contain asbestos. The use of these screens were identified in the Works Approval application, which predated the Discharge Licence, and over time, Renex has purchased and leased several different mobile screens which separate out oversized material.

60 Consequently, the Defendants deny that there is any breach of their permissions under the Act, nor any infringement against the provisions of the Act.

61 On 8 January 2019, Renex wrote a letter to an officer of the EPA advising that Renex considered it was licenced to treat soil contaminated with asbestos and provided the EPA with photos of its asbestos removal process, including a mobile screening machine and its operation, and a copy of its procedures for the abatement of asbestos in soil. Renex sought a licence amendment to 'formalize [sic] its ability to accept and treat asbestos contaminated material'. After verbal consultation with the EPA, Renex applied for a commissioning approval pursuant to section 30A of the Old EP Act to treat 'up to 5,000 tonnes of contaminated soil (Category A, B or C) co‑contaminated with asbestos', which the EPA subsequently issued and which applied between January and May 2019.

62 Renex's Discharge Licence was not amended upon expiry of the section 30A approval, but the Operating Licence was subsequently amended on 29 October 2021 as described in [53] above. The EPA was nonetheless aware that Renex continued to accept and treat asbestos contaminated material in the intervening period, as confirmed by an email dated 10 March 2021. In that email, an officer of the EPA sent an email which stated that the officer believes that their reading of the waste codes enabled Renex 'to receive, store and process asbestos contaminated material' and was queried with another officer to confirm whether 'this is something that you have previously looked at and is something that we need to be concerned about or are we happy that Renex can effectively treat soil contaminated with asbestos?'.

63 Between July 2021 and February 2025, Renex was the subject of a Major Industry Assessment instigated by the EPA, with an audit undertaken by an independent auditor approved by the EPA ('Audit Report'). The resulting report noted that the Operating Licence included a treatment code for physical (but not thermal) treatment of asbestos and that the Operating Licence allowed asbestos contaminated soil to be accepted as part of waste code N120. It also required the Defendants to implement the following 'Requirement 15: Control Measures to Minimise Asbestos Risks':

(a) Communicate to clients, which materials Renex is capable (and not capable) of treating through its thermal treatment facility and what cannot be included in waste streams, i.e. asbestos.

(b) Communicate with employees how there are controls in the workplaces to identify and control health and environmental risks associated with asbestos.

64 The Defendants also submitted that the two documents referred to by the EPA at [39] above in relation to risk management of asbestos containing material inadvertently received, being the Information Sheet and the Management Sheet, are only a subset of the information Renex provided to the EPA during the audit.

65 The EPA issued a further improvement notice to Renex after the Audit Report was completed (the 'Notice').[32] It required Renex to implement the auditor's verified action plan and complete all works detailed in the Notice. An excel spreadsheet produced in response contained comments by the auditor, EPA and First Defendant. Notes within the spreadsheet confirmed the 'current licence condition (OL_WA2) includes treatment code for physical removal of asbestos'. Additionally, a note from the auditor on Requirement 15 was as follows:

Additional information was supplied by Renex in regard to each issue raised in Requirement 15 ... Based on previous discussions and documentation, and supported by this additional information, the auditor is satisfied that this requirement has been complied with. The Renex contractual documentation clearly states that Renex will not accept material with (friable) asbestos contamination.

It is noted that inspection of client sites (ie at the source of waste) was suggested in the [Audit] Report. Whilst this may be possible in some instances, the auditor considers this to be the responsibility of the potential client (and licenced transport company) to supply accurate information to Renex prior to transport to the Renex site.

66 The Notice was subsequently revoked by the EPA in February 2025.

67 On the basis of the above, the Defendants submit that:

(a) the Audit Report included matters relating to Renex's procedures regarding waste tracking and asbestos management;

(b) the Audit Report is consistent with the position that Renex is licenced to treat soil contaminated with asbestos;

(c) the auditor and the EPA were both informed that Renex accepts material contaminated with asbestos where it is pre‑organised;

(d) the auditor was satisfied that the Requirement 15 control measures to minimise asbestos risk have been complied with; and

(e) the EPA did not advise Renex that it was not authorised to accept and treat material contaminated with asbestos where pre‑organised.

68 Subsequent to the Audit Report, Renex has also proactively sought advice to improve and consolidate its procedures and management of asbestos contaminated soils in order to further minimise any risk to human health and the environment. It has implemented changes to its procedures as a result of independent advice received.

69 The EPA must prove on a prima facie basis that there is sufficient likelihood of success in respect of the claim it has made.[33] Whether there is a serious question to be tried requires a judgment to be made of which the Court will examine both the legal foundations of the claim made in the proceeding and the evidence in support to determine the interlocutory application.[34]

70 The EPA submitted that the evidence before the Court establishes a strong prima facie case that Renex has breached and continues to breach the Act. The strongest claims were said to be the breaches of sections 44(1)(a) and (b).

71 The EPA expressed its major concern as being the treatment by Renex of soil containing asbestos to produce fill material without the proper permissions and regulatory oversight, which has materialised in the Green Sand and Somerville examples.

72 Renex maintained that it did hold the requisite permissions and was being compliant with its existing permission and the Act.

73 What is evident is that asbestos has been identified in the fill material at the Green Sand and Somerville sites and that there is a real dispute about the effect of the permission which Renex holds.

74 I will deal with each of the allegations of breach of the Act and/or permissions held by Renex before turning to the balance of convenience question.

75 Renex submitted that the EPA's claim that it had failed to comply with record keeping conditions as alleged in paragraphs 7(i)-(iii) of the SASOC is misconceived and should be rejected by the Court. Renex argued that the EPA has not made any submissions which demonstrates how Renex has failed to comply. Referring to the particulars in paragraph 7 of the SASOC, this only demonstrates that material transported from the Premises to Green Sand on 24 May 2024 was reportable priority waste to which the EPA could not locate any record on the EPA waste tracker system. Hence, this allegation has no substance since the material transported was fill material, not reportable priority waste. Therefore, it was not required to be entered on the waste tracker. Further, the waste tracker does not permit Renex to record outgoing movements of fill material.

76 The EPA's concern seems to be that the waste tracker recorded a large quantity of N120 classified waste being received at the Premises, including soil contaminated with asbestos, but that there is a 'large volume of material unaccounted for' (because the waste tracker system does not record an equivalent amount of outgoing material). As a result, it was submitted that the EPA simply speculates that Renex does not keep the records required by the Operating Licence. Renex submitted that the evidence shows that Renex treats N120 soils through physical treatment and following a classification process, therefore soil which is classified as fill material is transported from the Premises. Fill material is not Permitted Waste and hence the conditions of the Operating Licence do not apply to it. Further, fill material by definition is not reportable priority waste and its movement cannot be recorded in the EPA waste tracker system. Speculative reasoning advanced by the EPA in the particulars to paragraph 7 is not a basis to assert that there is a serious question to be tried in relation to this claim.

77 It was submitted that the EPA has failed to establish a serious question to be tried on its own material.

78 Further, Renex submitted that the evidence demonstrates that:

(a) Renex does keep the required records and has systems for doing so;

(b) Renex has made offers to provide the EPA with relevant documents and the EPA has provided no explanation as to why that offer was rejected; and

(c) Renex has made a further tailored offered to provide relevant documents to the EPA which remains open.

79 The discrepancy in volumes of material referred to raises some obviously concerning alarm bells when viewed in light of the asbestos found in the fill material at the Green Sand and Somerville sites. On proper examination, this may well be explicable as Renex suggests. The question of compliance with the reporting conditions in the permissions held by Renex begs the question of the proper interpretation of those permissions and whether they are adequate to cover the activities actually being undertaken at the Premises.

80 I am of the view that the claim by the EPA in this regard has sufficient credibility that a prima facie case of breach is established. I have formed this view not because I am satisfied to a high level of satisfaction that there is a deficiency in record keeping, but because there is sufficient debate about the permission held and the factual circumstances around the observations of asbestos at the two sites mentioned.

81 I am also influenced by the Renex offer of documents, a matter to which I will return in dealing with the balance of convenience considerations.

Failure to hold a development licence contrary to sections 44(1)(a) and (b) of the Act

82 The EPA's allegation is that Renex has contravened sections 44(1)(a) and (b) of the Act by failing to hold a development licence to:

(a) construct or install a screening plant and equipment described in paragraph 17(b) of the SASOC, namely a mobile screen with hopper and conveyor belts shown in photographs taken on 24 May 2024; and

(b) develop a process or system for treating soil containing asbestos described in paragraph 17A of the SASOC.

83 The EPA has not provided particulars as to when the breach of section 44 is alleged to have occurred and the EPA seeks to establish this claim by alleging the breach is made out because Renex has, by means other than thermal treatment abated asbestos, used an on‑site screening plant and equipment to process and/or it has mixed, blended or diluted it with other waste and/or materials.

84 Renex submits that this claim is fundamentally misconceived and raises no serious question to be tried.

85 Firstly, the EPA has filed no evidence to established the breach and it carries the onus in this regard. A breach of section 44 imposes criminal liability and, as such, it must be interpreted in accordance with common law presumption against retrospectivity in the interpretation of statutes that impose criminal liability. Notably, section 44 of the Act commenced operation on 1 July 2021. The presumption is not expressly displaced by the Act nor is it displaced by necessary implication.

1. Development licences required for development activities

(1) A person must not engage in one or more of the following activities except as authorised by a development licence in respect of the activity -

(a) the construction or installation of plant or equipment for a prescribed development activity;

(b) the development of processes or systems for a prescribed development activity;

(c) the modification, other than general maintenance, of plant, equipment, processes or systems for a prescribed development activity or of the operation of a prescribed development activity -

(i) if the modification creates a risk of material harm to human health or the environment from pollution or waste; or

(ii) in prescribed circumstances.

Penalty: In the case of a natural person, 2000 penalty units;

In the case of a body corporate, 10 000 penalty units.

(2) Subsection (1) does not apply -

(a) in respect of any action or thing the person takes or does to comply with -

(i) a pilot project licence issued to the person that is in force in respect of the activity; or

(ii) an authorisation granted to the person under section 157 that is in force in respect of the activity; or

(iii) an exemption granted to the person under section 80(1) that is in force in respect of the activity; or

(iv) requirements specified under section 48(a) in respect of the activity; or

(b) in respect of any action or thing that the person is required to take or do under an improvement notice or environmental action notice; or

(c) if a prescribed exemption applies to the person.

(3) An offence under subsection (1) is an indictable offence.

87 It was submitted by Renex that the EPA's case appears solely predicated on the fact that Renex has and continues to treat N120 soils contaminated with asbestos through mobile equipment and procedures. However, this does not prove a breach of section 44. These provisions are time specific and the EPA is required to prove that on or from 1 July 2021, Renex engaged in one of the proscribed activities referred to in section 44, noting that the EPA does not rely on section 44(1)(c) of the claim.

88 It was argued that it is clear from the terms of section 44(1) that modifications to plant equipment and to existing processes or systems are different to the construction or installation of plant or equipment or the development of processes or systems.

89 Further, there was no evidentiary support as part of the EPA's case that Renex engaged in any of those activities on or from 1 July 2021. Rather, the evidence before the Court, adduced by Renex, demonstrates that Renex has developed its systems of processes for the abatement of asbestos contaminated soil prior to the commencement of the Act. Additionally, it has been using mobile screening equipment since this time in order to abate asbestos from the soil. There is no evidentiary support for the EPA's claim that Renex constructed or installed equipment or a plant for its asbestos abatement procedures without a development licence. Renex uses mobile equipment which requires no construction or installation, and in any event it would not be captured by section 44 of the Act.

90 Properly construed, 'installation' in section 44(1)(a) requires some degree of permanence to the location of the piece of plant or equipment in question. It was submitted by Renex that the notion of 'installing' mobile equipment is an oxymoron. If that were not the case, it would mean the development licence would be required whenever any mobile equipment was brought onto the land for use in a treatment process (such as drills, jackhammers, excavators and so on), and such an interpretation would produce an absurd result and plainly not one which could have been intended by Parliament. Further, construction that requires some degree of permanence does not leave mobile equipment unregulated. Renex submitted that there was no evidence filed in respect of the alleged breaches of section 44(1) and the onus was on the EPA in that regard to establish sufficient basis for this allegation.

91 The provisions do not have a retrospective operation and they impose criminal sanctions for a breach.

92 Renex submitted that this breach is not made out on the evidence before the Court.

93 There is no doubt that there is a real dispute on the interpretation of the Act in regards to whether the activities Renex is undertaking falls within its current permissions or requires a specific development licence under section 44 of the Act.

94 However, I am not satisfied that there is sufficient force in the EPA's case on this matter to form a concluded view, nor am I required to do so at this point. I have reservations as to the likelihood of success of this issue but this is clearly a matter for trial.

Failure to comply with the duties in section 135(2) of the Act concerning the Green Sand and Somerville sites

95 The EPA's claim in respect of the Green Sand and Somerville sites is that Renex failed to comply with the duties to take all reasonable steps to ensure that waste soil (which the EPA defines to be reportable priority waste) was being:

(a) transported to a place authorised to receive priority waste and reportable priority waste; and

(b) received at a place that was authorised to receive priority waste and reportable priority waste.

96 It was submitted by Renex that the EPA's claim that the transportation to the Green Sand and Somerville premises involved reportable priority waste proceeds on a fundamental misunderstanding of the Act and the regulations in relation to soil containing asbestos. It was also argued to be a misapplication of the statutory framework applying to fill material. In addition, Renex argued that there were fundamental errors made by the EPA in the sampling and testing of the material. As a consequence, Renex says this claim is misconceived and does not raise a serious question. Renex refers to and relies on the following evidence:

(a) That the material which was transported had been through Renex's processes for removing all visible pieces of asbestos as far as reasonably practicable and was classified as fill material by an independent environmental consultant.

(b) The classification processing consignment off‑site followed the very process established by the Act, regulations, framework and guidelines issued by the EPA.

(c) The mere fact that EPA officers found pieces of asbestos in the material during inspections at the Green Sand and at other premises does not mean the material is to be classified as reportable priority waste. Such a finding is inconsistent with the soil classification process required by the regulations.

97 It was submitted that the EPA had not sought to address the Court on the statutory framework in its submissions in support of the summons, but did address the matter orally in its reply submissions in support of the proposed orders before JR Lorenz where the EPA said that any soil that contains asbestos is classified as N120 waste under the regulations; a similar argument had been rejected by the Tribunal.[35]

98 Renex argued that the classification of fill material when it leaves the Premises is not retrospectively altered by the presences of some fragments of asbestos detected by the EPA at the receiving sites. The legislative framework does not require that there be no asbestos in the soil for it to meet the definition of fill material in the regulations. The standard imposed by the legislative framework is the taking of reasonably practicable steps to remove visible pieces, not the removal of all pieces, of asbestos.

99 Further, the need for an interim injunction should be considered having regard to an assessment of the risk to human health and the environment that arises from the result of Renex processing soil with asbestos, based on the evidence and with the risk assessed through the prism of the regulatory framework that applies. This was explained by the Tribunal in Australian Recycling Corporation Pty Ltd v Environment Protection Authority.[36]

100 Separately, it was argued by Renex that in respect of the Green Sand site, the EPA sampling of the soil at that site was fundamentally deficient for classification purposes.

101 Renex complained that the EPA failed to furnish the Court with all relevant material which included:

(a) evidence which shed light on the appropriate classification of the material sent to the Green Sand site;

(b) a failure to inform the Court that the EPA issued a notice to investigate requiring Green Sand to furnish it with a soil classification report; and

(c) a failure to inform the Court that it had issued a no disturbance notice concerning the soil which it ultimately lifted.

The EPA failed to furnish the Court with a classification report provided by Green Sand demonstrating the material was appropriately classified as fill material. The Court should infer that the EPA was satisfied that, notwithstanding the asbestos fragments it found at the time, the EPA was ultimately satisfied that the soil was appropriately classified as fill material. This is contrary to the very argument it now makes to the Court in these proceedings.

102 Renex submitted there was no serious question to be tried on this subject matter.

103 This claim relies on proof that the material which was transported failed to meet the criteria of clean fill and that it was, as the EPA alleged, properly classified as reportable priority waste.

104 There is a clear dispute about the proper classification of the material both from a legal interpretation as well as a factual one. Renex makes a cogent argument to demonstrate that there is no breach. However, the discovery of asbestos in the fill delivered to both the Green Sand and Somerville sites, which required action to be taken, demonstrates a failure in the process.

105 Whether this allegation is made out at trial is a matter to be determined at that point. However, there is a real dispute on this issue.

106 The EPA claims that Renex is liable for the alleged breach of section 316(1) of the Act in respect of another person's alleged unlawful deposit of waste, contrary to section 133(1) of the Act.

107 Section 133(1) provides that a person must not deposit or abandon industrial waste at a place or premises unless the place or premises is authorised to receive industrial waste. Further, a person must not aid, abet, counsel or procure a contravention of a civil penalty provision, or be in any way directly or indirectly knowingly concerned in, or party to, a contravention of a civil penalty provision.[37]

108 Renex submitted that this claim is lacking in substance as the EPA has not advanced any submission to demonstrate how Renex could be said to be legally responsible under section 316(1) for an alleged breach of section 133(1) by another person in circumstances where the materials transported was abated and classified as fill material.

109 As stated above, the claim that material transported to Somerville and Green Sand was reportable priority waste because the EPA found fragments of asbestos during its inspection has no proper foundation given the framework for asbestos abatement and soil classification.

110 It was submitted that the serious allegations made by the EPA raises a number of issues for the EPA as a model litigant and regulator. The EPA ought not make such serious allegations against a person who has no opportunity to defend themselves in the proceeding and raises inherent unfairness for Renex, as it was not present at the receiving site when the material was deposited and, as such, cannot be expected to defend the actions of another person when it has no knowledge of the conduct.

111 The defence to this allegation relies on the legal and factual findings in dispute as to the proper classification of the material. As noted above, there is a real dispute in this regard.

Breach of General Environmental Duty in section 25(1) of the Act

112 The EPA claims that Renex is in breach of the General Environmental Duty ('GED') in three ways, being:

(a) treating soil by using a mobile screen to sift soil containing asbestos and mixing, blending or diluting soil containing asbestos with other waste instead of either applying for a development license, or using the plant equipment processes and systems set out in Renex's management of inadvertent asbestos contaminated program;

(b) by failing to use and maintain a system to screen material for the presence of asbestos prior to its removal from the Premises and transportation to a place authorised to receive asbestos contaminated material, and maintaining a record of outgoing movements of Permitted Waste and all outgoing waste and material; and

(c) by failing to do a number of things required by its management of inadvertent asbestos contaminated material program.

113 Renex submitted that there was no basis for this claim and the EPA did not advance any submissions to explain these GED claims.

114 The EPA submitted that the Court's jurisdiction has been enlivened here because the EPA has set out a strong prima facie case that Renex:

(a) failed to keep records as required under OL_WM11 of the Operating Licence in breach of section 63(1) of the Act;

(b) is treating soil containing asbestos without a development licence as is required under the Act, in breach of sections 44(1)(a) and (b) of the Act;

(c) has transported waste soil (containing asbestos) to the Green Sand and Somerville sites when there were no permissions for the premises to receive that kind of waste in breach of section 135(2) of the Act; and

(d) was otherwise knowingly involved in a breach of section 133(1) of the Act (the depositing of industrial waste at Somerville) in breach of section 316(1)(b) and/or section 316(1)(d) of the Act.

115 Further, the EPA contended that there was a strong prima facie case that the Defendants owed a GED under section 25(1) of the Act, to do all things reasonably practicable in order to reduce the risk of harm to human health and the environment from waste, and they failed to discharge that duty.

116 If the factual and legal questions which underline the breaches are found in the EPA's favour, there will be a strong case that there is a breach of the GED. Further, the GED applies more broadly. Again, this allegation is strongly disputed by Renex and it is clear that there is a real contest on this issue.

Conclusion on whether a prima facie case is established

117 My conclusions on whether there is a prima facie case is as follows:

(a) The motivation of the EPA to bring this interim injunction application appears, quite understandably, to be the discovery of asbestos in fill or soil which has been produced by Renex at two sites (Green Sand and Somerville). Observations carried out by EPA AOs of the Premises and the method of physical removal of asbestos alleged to be contrary to Renex's Operating Licence has led to the identification of further breaches of the Act.

(b) The compliance and issues with the regulation of Renex's operations has some history, not all of which is happy and free from litigation.

(c) There is a clear dispute between Renex and the EPA as to the conditions upon which Renex is conducting its activities with respect to asbestos material.

(d) The regime for permitting the treatment of waste is complicated and technical, and there is no doubt on the material before me that there is considerable scope for disagreement as to the legitimacy of the operations of Renex in its acceptance, treatment and disposal of fill asbestos contaminated waste. That said, I am satisfied that the position put to the Court by Renex in identifying the weaknesses in the EPA's allegations has some force.

(e) I have set out in some detail the analysis which has been put to the Court on Renex's behalf as I am satisfied that the position they advocate, on the facts and on the correct interpretation of the permission requirements under the Act, have significant force. This observation goes to the first consideration relevant to the Court's exercise of power under section 310 of the Act.

(f) The inferences which must be drawn as to the disparity between waste received and the waste which is otherwise reported or which leaves the Premises after treatment is troubling, but Renex makes a persuasive case based on their explanation of the records which are required to be kept.

(g) On the form of treatment of the asbestos received at the Premises which is argued by the EPA to be unauthorised, Renex's explanation of the permission it holds and the time period over which they apply is rational and I accept this position.

(h) Contrary to the above, the discovery of asbestos at the Green Sand and Somerville sites certainly raises red flags as to the processes and permissions which have allowed the circumstance to eventuate.

118 Overall, I am of the view that there is a prima facie case established by the EPA. It is not a case which is overwhelming and the strength of Renex's case has some force. However, the prospect of allowing material containing asbestos to be utilised in material classified as clean fill without more careful oversight seems to me to be contrary to the precautionary principle, the principles of proportionality, primacy of prevention, shared responsibility, equity and accountability,[38] which are relevant in the administration of the Act.

119 It is necessary now to turn to the balance of convenience considerations.

BALANCE OF CONVENIENCE AND THE TERMS OF THE ORDERS SOUGHT

120 The EPA submitted that the interim orders sought essentially require Renex to do little more than comply with the Act, that it is in the public interest that the Defendants be compelled to take steps to comply with the legal obligations under the Act, and that there is a risk to human health and the environment.[39]

121 The Defendants submit that, even if the Court found there was a serious question to be tried, when considering the discretionary matters which go to the balance of convenience, no order in the terms sought by the EPA should be made by the Court.

122 I acknowledge that the Defendants made an offer to provide some reporting documents and information to assist the EPA in monitoring compliance.

123 For the reasons given on the question of balance of convenience, I have concluded that an interim order for the production of reporting documentation and information is required, but not in the terms sought by the EPA. I am also not satisfied that the balance of convenience favours the cessation of the receipt and treatment of asbestos by Renex if the reporting and information I intend to order to assist the EPA in monitoring compliance is undertaken.

124 In respect of the allegation that the interim orders do little more than require Renex to comply with the Act, Renex submits that there is an inconsistency in the claim at paragraphs 7-8 and 25(b) of the SASOC, and the terms of orders sought by the EPA's summons go well beyond Renex's statutory requirements.

125 Renex also submits that the final determination of the proceeding of whether or not Renex is legally obliged to keep the records under the Act or whether it failed to keep them is not inherently 'in the public interest' as the EPA asserts, and thus it is not appropriate for the Court to make interim orders to compel a person to do something that it may or may not be legally obliged to do.

126 Renex also submitted that the EPA has not identified any particular link between the proposed orders and any risk to human health and the environment.

127 As previously noted, Renex has offered to provide the EPA not only the documents required under its Operating Licence but also reports that are not required to be produced under its current permission, such as the environmental reports classifying the material leaving the premises as 'fill material' and various other reports relating to treatment of soil containing asbestos on the Premises. The EPA has provided no explanation as to why this offer was rejected and did not respond to Renex's request for information about why additional documents were required by the EPA. Given the offers made by Renex in respect of documentation, it submits that there is no need for the Court to make any orders for provision of documents.

128 Additionally, Renex submitted that the amount and size of information required to be collated and sent every week would make the terms of the orders sought by the EPA extraordinary and would be an unreasonable business and logistics task.

Documents and reporting asbestos acceptance and removal requirements

129 The EPA's summons seeks orders that Renex cease accepting materials declared to be asbestos or asbestos containing material until such time as it is appropriately licensed or permitted to treat asbestos on the Premises, and remove all asbestos or asbestos containing materials to a licensed facility as soon as practicable after they are received at the Premises.

130 These orders are not expressed to apply only to the date of any final determination, contrary to section 310 of the Act.

131 Renex maintains it is appropriately licensed or permitted to treat asbestos on the Premises and orders in this respect are meaningless.

132 The permissions required and the terms of the permissions held are key questions to be determined in this proceeding. The issue is far from clear cut with plausible (but diametrically opposed) arguments being put before the Court.

133 It was submitted by Renex that is not inherently 'in the public interest' for the Court to make an interim order to prevent a person from conducting a business they may be legally entitled to conduct.

134 Renex maintains that it is entitled to receive and treat soil contaminated with asbestos under its Operating Licence and that the EPA's submissions that it needs a further approval (development licence) to treat soil containing asbestos is misconceived.

135 Renex submitted that it could not comply with the orders sought by the EPA insofar as it relates to removing soil classified as Category A contaminated soil with asbestos because, as was deposed by Mr Chandy,[40] there are no other licensed facilities that can receive the soil.

136 The EPA says that this evidence should be treated with caution as Mr Chandy is not a waste specialist and that there is no evidence of any efforts to identify alternative facilities.

137 Renex submitted that there was no unacceptable risk to human health or the environment because Renex's processes follow and reflect the level of risk that is deemed acceptable under the framework of the Act and regulations. Additionally, it has adopted other measures that go beyond industry standard by adopting the measures recommended by Mr Bos.

138 The EPA filed five affidavits in support of its application but none of these address the risk of harm to human health and the environment that arise from Renex processing soil with asbestos to produce fill material. The only possible exception is the second Affidavit of Greta Wendy Sandow which was filed on 6 June 2025, which lists a number of publications on the risks of asbestos. It was submitted that this evidence does not address any additional risks posed by Renex's treatment of soil contaminated with asbestos. Ms Sandow does not refer to the full regulatory framework nor assess the risks through the lens of that framework. Instead, she refers to the fill material determination, and it is submitted by Renex she misconstrues its effect.

139 Renex submitted that while it has relied on licensed asbestos removal contractors (and independent hygienists) in accordance with the statutory framework and industry practice, it now proposes to go even further by reference to the matters recommended by Mr Bos.[41]

140 Further, the identification that at a high abstract level there are human health risks associated with asbestos, should be distinguished from the identification of risks allowing Renex to continue treating material in accordance with the statutory framework overlaid with its updated management procedures. The former may be inherently high and the latter extremely low. The EPA's submissions concerning the nature and extent of risks arising from Renex's activities in this proceeding should be viewed cautiously. They do not reflect the public statements it has made concerning the risks associated with non‑friable (bonded) asbestos which it has publicly described as having a low risk and negligible in circumstances where asbestos has been found in playgrounds.[42]

141 The EPA argued that the Defendants' claim to have acted within the regulatory framework is undermined by their failure to obtain a development licence or permission explicitly required to undertake their current operations in respect of the treatment of asbestos contaminated soil. Further, the EPA AOs' evidence is that asbestos was observed upon inspecting Green Sand and Somerville where Renex's material was delivered. Such immediate and visual detection calls into question the adequacy of the Defendants' processes in adhering to regulatory requirements and mitigating associated risks to human health and the environment.

142 The EPA rejected that there was no evidence of risk of specific harm in respect of the Somerville site; in particular, that there was an intention to use the soil for construction of flower beds, which would significantly increase the likelihood of asbestos disturbance, creating the risk of airborne asbestos exposure. The EPA also refuted the comparison to the use of asbestos in playgrounds as different levels of risk.

143 Delay in bringing action is a further consideration in the exercise of the Court's discretion. In particular, Renex submits:

(a) the EPA has had knowledge of Renex's treatment of asbestos contaminated soil since at least 2019;

(b) it corresponded internally during 2021 as to whether or not Renex's Discharge Licence under the Old EP Act allowed it to treat contaminated asbestos soil;

(c) at some stage, offices formed the view that no Works Approval was required under the Old EP Act for the treatment of soil contaminated with asbestos;

(d) during 2019 through to 2021, the EPA consulted on new waste codes in preparation for the Act to commence;

(e) in October 2021, the EPA amended Renex's Operating Licence in a manner which specifically permits Renex to treat such soils through physical treatment by application of the new waste codes, thus clearing up any ambiguity arising under the provisions of the transition licence; and

(f) the EPA has regularly inspected the Premises including between 13 December 2023 and 9 December 2024 and observed the asbestos removal in progress, and has been provided with information about Renex's treatment processes, including the use of the screen and the use of an approved asbestos specialist with clearance certificates available after this process.

144 In the circumstances, it would be unfair on Renex for the EPA to have delayed for this time, and then seek urgent orders on an interim basis some three and a half years later. However, the strength of this issue is diluted by the considerations necessary by reference to the environmental principles in sections 13-‍23 of the Act.

145 The EPA refuted the delay claim; it stated that the reference to the 2019 date significantly overstates the timeline, and the temporary commissioning approval granted in 2019 had lapsed and the Defendants did not apply to renew it. The EPA submitted that a more accurate time period would be 13 December 2023 to 9 December 2024 when the EPA AOs observed asbestos removal in progress during inspections of the Premises. The urgency escalated when EPA AOs discovered fill material produced by Renex delivered to other sites contained asbestos and this finding significantly altered the circumstances and heightened the need for immediate action.

Failure by the EPA to provide relevant documents to the Court

146 Renex alleged that the EPA failed to furnish the Court with all relevant material it collected as a Regulator, namely further evidence that sheds light on the appropriate classification of the material sent to the Green Sand site and this should be a factor that weighs against the grant of the injunction.

147 The EPA denied that it had not produced all relevant documents and that this submission was misconceived. It noted that the application was not made ex parte and that all documents relevant to the application had been produced.

Financial harm and other forms of harm to Renex

148 The impacts of an injunction requiring the removal and cessation of receiving soil contaminated with asbestos are substantial, as identified in the affidavit of Mr Chandy.[43] Mr Chandy states that the financial impact which relates to the disposal of material to an alternative licence premises, if indeed that option was available for all material, would be significant. Further, he states that there would be a direct financial loss from the cessation of receipt and treatment of material. There would be significant flow on effects of potential loss of contracts, suspension of research and development of new initiatives, and staffing impacts, as well as reputational damage.

149 The EPA submitted that any financial harm is caused by its own decision to operate without the necessary development licence or regulatory compliance. Additionally, their non‑compliant operations create an unfair competitive advantage at the expense of businesses that do comply with the law. The balance of convenience must favour upholding public interest in regulatory compliance over preserving the commercial interests of a non‑compliant business.

150 Renex submitted that there would be irreparable harm to Renex noting an undertaking as to damages, usually required under a common law injunction, is not available under this legislative regime.

151 The potential impact of an injunction including increased costs for development and infrastructure projects is also identified in the affidavit of Mr Chandy.[44] Mr Chandy deposes to the strong demand for the disposal and treatment of N120 contaminated soil, especially in relation to major state government projects.

152 The EPA criticised this submission and the reliance on Mr Chandy's evidence on the basis that he is not an independent or qualified expert in government infrastructural waste management; his evidence focused on Renex's interests rather than providing objective insights. Consequently, it was submitted that his assertions about third‑party impacts lack credibility and merits careful scrutiny.

153 Renex submitted that if the injunction were granted, the N120 soils with asbestos would likely be sent by waste generators to landfill sites, which is contrary to the Waste Hierarchy in section 18 of the Act and the principles of the circular economy as expressed in the Circular Economy (Waste Reduction and Recycling) Act 2021 (Vic), a significant factor militating against the grant of an injunction.

154 The EPA criticised these claims as speculative and unsupported by creditable evidence. Further, the EPA asserts that the Defendants have not demonstrated alternative treatment options consistent with the circular economy which could have been adequately explored. The argument oversimplifies the complexities of waste management and should not outweigh the need to address the environmental risks posed by Renex's current practices.

Consideration of balance of convenience factors

155 In relation to the balance of convenience, this necessarily involves the consideration of the strength of the EPA's claim and the consideration of matters favouring or militating against the granting of an injunction. The Court should take whichever course appears to carry the lower risk of injustice, if it should turn out to be wrong in the sense of granting an injunction to a party who fails to establish his right at trial or in failing to grant an injunction to a party who succeeds at trial. Whilst this articulation reflects the common law approach to an injunction, I am of the view that this is still an appropriate approach, notwithstanding the width of the power under sections 309 and ‍310 of the Act.

156 In determining the balance of convenience, the impact of the injunction on third‑parties may be considered. To be balanced against this factor are the public policy considerations which are implicit in the Act.[45]

157 There may be other discretionary factors relevant to the Court deciding whether or not to issue an injunction, including delay or acquiescence by the party seeking relief.[46]

158 I do not consider that there are no ongoing risks to human health and the environment. Renex submitted that the arguable breach of the Act is one of non‑compliance rather than real risk. However, the risk of exposure to asbestos is a well known one, though I accept that it is possible to restrict that risk by appropriate handling of asbestos contaminated waste. In my view, the appropriate management of asbestos should be supported by clear record keeping and reporting. In balancing the risk to human health and the environment, the primacy of prevention, the precautionary principle against the economic harm to Renex, and the management of asbestos contaminated waste more generally, I am persuaded that the balance of convenience falls on the side of action being required to ensure compliance and diligent oversight of Renex's processes which will be better facilitated by clear and additional reporting.

159 I am influenced also by the specific terms of section 309(4) of the Act which permits the Court to make an order whether or not the non‑compliance or contravention is likely to result in harm to any person or the environment, or is likely to result in an infringement of the rights of any person.

160 Public policy considerations of the breach should also be taken into account. The fact that the law requires compliance with environmental laws may be enough to warrant the Court's interference.

161 I acknowledge the submission by Renex that the risk of harm is reduced given the procedures Renex has in place to manage asbestos contaminated soils, developed in accordance with environmental legislative frameworks, occupational health and safety legislative frameworks, and the strength and procedures under the expert advice from Mr Bos. I have also taken into account the expression of cooperation by Renex which will enable the EPA to monitor risks which it claims arise from Renex's operations in managing soil contaminated with asbestos.

162 I also acknowledge the submission made by Renex as to the allegation of delay by the EPA in bringing this proceeding (although I recognise that this may have been a last resort and forms part of a suite of litigation involving the EPA and Renex).

163 There is little doubt that there is a real dispute between the EPA and the Defendants pursuant to the matters identified in the SASOC; being the identification of permissions required and compliance with existing permissions, including reporting requirements. These claimed breaches of existing permissions, permissions required and breaches of the Act are strongly in contention.

164 I have formed the view that, on the evidence before me, there are sufficiently serious questions in respect of compliance and there is potential for harm to human health or the environment by reason of exposure to asbestos (notwithstanding I am not required by section 309(4) to be positively persuaded of this risk). However, the analysis of the legislative regime, the permissions held by Renex, and the Defendants' operations, including the intention to act and further management recommendations, diminish the need for the Court to intervene in the terms sought by the EPA.

165 I make note of the offer made by the Defendants to provide the EPA with documents to monitor Renex's acceptance and treatment of soil containing asbestos.[47] On 14 February 2025, the EPA sent Renex a letter setting out EPA's 'position' on 'what we consider to be permitted under Renex's Operating Licence' and seeking a 'voluntary undertaking' that Renex provide the following information on a weekly basis:

(a) An inventory detailing the location, categorisation, contaminant composition, and waste code of all industrial waste on the Premises.

(b) Records detailing the source, categorisation, contaminant composition, and waste code of all industrial waste received at the Premises since the last inventory.

(c) Records detailing the waste transporter, intended receiving location, categorisation, contaminant composition, and waste code of all industrial waste leaving the Premises (including thermally treated material). This must include copies of analytical testing results for all batches of industrial waste leaving the Premises.

(d) Records detailing the quantity of waste treated through the thermal treatment process at the Premises.

(e) Records detailing the quantity of waste found or suspected of containing asbestos containing materials after being received at the Premises, and details of how the waste was managed.

(f) Records detailing the source, categorisation, contaminant composition, and waste code of all industrial waste refused for receival at the Premises, and how the waste was managed.

166 On 20 February 2025, Renex responded ('First Response') and agreed, subject to an agreed timeframe, to provide the Plaintiff with:

(a) The information requested in (d)-(f).

(b) The following records that Renex is required to keep under its Operating Licence:

(i) As required by OL_WM11, for all wastes of a type listed in Appendix 4:

A. incoming and outgoing movements of waste;

B. the current location of waste at Renex's activity site; and

C. the waste type of any waste located at Renex's activity site.

(ii) Records in relation to thermally treated materials in accordance with Appendix 8 of its Operating Licence.

(c) The lab report records used to classify fill material and, for item (c), the classification data (NATA records) for material sent from the site as non‑reportable priority waste. Renex also agrees to provide records of any asbestos removed.

(a) EPA's request for documents in paragraph 12(a)-(c) of its letter dated 14 February 2025 is broader than the record keeping requirements under the Operating Licence; and

(b) Renex does not keep transport records of fill material that leaves the Premises once the asbestos (or other material such as bricks, concrete, timber and metal) is removed.

Should EPA require records over and above those listed above, Renex may need some time to set up record management systems, given they are not required under the Operating Licence. To that end, we would request that EPA be specific about what is required and why so that Renex can further consider EPA's request.

169 The parties were unable to resolve the issue and, as a consequence, the EPA brought on this application.

170 It is unfortunate that the EPA has taken the view that this offer was unlikely to resolve the issues in dispute between it and Renex and that an order from the Court was urged. I consider this inability to resolve the documentary standoff as bordering on inconsistent with the parties' obligations under the Civil Procedure Act 2010 (Vic). Given that the Defendants have made the offer, and whilst they submit no Court order is required, given the apparent stand‑off between the parties, I am prepared in the circumstances to make an order for the provision of such documentation and reporting to assist in the monitoring of Renex's operations. The breadth of the power of the Court to do so in this case is substantiated by the statutory formulation of the discretion in sections 309 and 310 of the Act.

171 In coming to this conclusion, I have had particular regard to the strength of the EPA's claim as identified in the SASOC, examined in the light of the matters put by the Defendants on the issue of a serious question to be tried. On its face, the findings of asbestos at Green Sand and Somerville, the observations by the EPA AOs of the asbestos removal and treatment processes at the Premises, and the comparison of volumes of waste received against waste treated and/or removed from the Premises, raise understandable compliance concerns for the protection of human health and the environment.

172 I acknowledge that the power to grant an interim injunction under the Act does not bring with it the usual requirement that the moving party give an undertaking as to damages. That was a clear intention of Parliament. The purpose of the Act is relevant to the exercise of the Court's power. In particular, the reference to the environmental principles in sections 13-23 of the Act are matters which dilute the strength of the arguments which Renex raises in regards to delay and public interest. Private financial or reputational concerns are relevant, but when considered through the environmental principles and the scope and purpose of the legislation, they are diminished in weight.

173 There is ambiguity in the permission regime which applies to Renex's operations. This is the key factual and legal question to be determined at trial. I am not satisfied that the answer is so clear cut that the EPA's case is inviolable. However, there is sufficient force in their assessment of the legislative regime and its application to Renex's operations that there is a risk that if no further reporting and surveillance is conducted at the Premises, then the dispersal of asbestos in what might or might not be properly termed 'clean fill' will be perpetuated over other sites.

174 I propose to make orders in accordance with the offer made by Renex set out at [166] above, which provides for a greater level of reporting and transparency of documentation which, on an interim basis, is in my view appropriate.

[1] Condition OL_WM11 of Operating Licence OL000127068.

[2] For the purpose of the orders sought by the Plaintiff, 'materials' is defined to mean 'any thing that has been received, or that is intended to be received, at the [Premises], or any thing that is physically located on the [Premises] at any time, that is:

(f) declared to contain asbestos (however described or classified) at the time it was received at the [Premises];

(g) asbestos containing materials (however described or classified);

(h) intended to be thermally treated on the [Premises], or that has been so treated on the [Premises];

(i) intended to be treated in any way other than thermal treatment on the Premises, or that has been so treated on the [Premises]; or

(j) fill material (however described or classified).'

[3] Instyle Contract Textiles Pty Ltd v Good Environmental Choice Services Pty Ltd (No 2) [2010] FCA 38, [65]-‍[67].

[4] Foster v Australian Competition and Consumer Commission [2006] FCAFC 21; (2006) 149 FCR 135, [30]-[32].

[5] Environment Protection Act 2017 (Vic) s 309(3).

[6] Ibid s 309(4).

[7] Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd [2006] FCA 1777; (2006) 157 FCR 162, [226].

[8] [2021] FCA 1295 ('IVF Finance').

[10] Tymbook Pty Ltd v State of Victoria; Bradto Pty Ltd v State of Victoria [2006] VSCA 89; (2006) 15 VR 65.

[11] Environment Protection Act 2017 (Vic) s 13.

[12] Ibid s 14.

[13] Ibid s 15.

[14] Ibid s 16.

[15] Ibid s 17.

[16] Ibid s 18.

[17] Ibid s 19.

[18] Ibid s 20.

[19] Ibid s 21.

[20] Ibid s 22.

[21] Ibid s 23.

[23] Being 'supply or use of reportable priority waste'.

[24] Being 'reportable priority waste management'. Item 1 of Schedule 1 to the Environment Protection Regulations 2021 (Vic) defines A01 (Reportable priority waste management) as follows: 'Storing, treating, reprocessing, containing or disposing of any reportable priority waste (transport) generated at another site, other than the following activities set out in this Table -

(a) item 29 (A21 - Temporary storage - biomedical waste);

(c) item 31 (A23 - Temporary storage - designated waste); and

(d) item 80 (L09 - Disposing of tunnel boring machine spoil)'.

[25] The Thermal Treatment Development Licence.

[26] Item 1 of Schedule 1 to the Environment Protection Regulations 2021 (Vic) defines A01 as follows; '[s]toring, treating, reprocessing, containing or disposing of any reportable priority waste (transport) generated at another site, other than the following activities set out in this Table-

(a) item 29 (A21 - Temporary storage - biomedical waste);

(c) item 31 (A23 - Temporary storage - designated waste);

(d) item 80 (L09 - Disposing of tunnel boring machine spoil)'.

[27] See section 471(1)(a) of the Act which outlines that a permission under the Old EP Act continues if:

(a) immediately before the commencement day, a person holds an old permission; and

(b) under the new Act, there is a new permission that is the equivalent of the old permission (see section 470).

[28] See sections 20(7)-(7C) of the Old EP Act.

[29] Including the Occupational Health and Safety Act 2004 (Vic) and the Occupational Health and Safety Regulations 2017 (Vic).

[30] Environment Protection Act 2017 (Vic) commenced 1 July 2021 and replaced the Environment Protection Act 1970 (Vic).

[31] [2025] VCAT 559.

[33] Tymbook Pty Ltd v State of Victoria; Bradto Pty Ltd v State of Victoria [2006] VSCA 89; (2006) 15 VR 65 [4], [35].

[35] Australian Recycling Corporation Pty Ltd v Environment Protection Authority [2025] VCAT 559, [594]-‍[605].

[36] [2025] VCAT 559, [483]-[484].

[37] Section 316(1)(b) and (d) of the Act.

[38] Part 2.3 of the Act - Principles of environment protection.

[39] Plaintiff's submissions filed 6 June 2025, [55]-[58].

[40] Affidavit of Anish Chandy (filed 4 July 2025, S ECI 2025 03129, Supreme Court of Victoria), [107].

[41] See Defendants' submissions filed 7 July 2025, [42]-[43].

[42] Affidavit of Megan Louise Lee (filed 27 May 2025, S ECI 2025 01329, Supreme Court of Victoria), [14]-‍[26].

[43] Affidavit of Anish Chandy (filed 4 July 2025, S ECI 2025 03129, Supreme Court of Victoria), [110]-‍[116].

[44] Affidavit of Anish Chandy (filed 4 July 2025, S ECI 2025 03129, Supreme Court of Victoria), [61].

[45] Including specifically by reference to the principles of environmental protection.

[46] Carlton & United breweries (NSW) Pty Ltd v Bond Brewing New South Wales Ltd [1988] FCA 205; (1987) 76 ALR 633, 638.

[47] Affidavit of Megan Louise Lee (filed 24 March 2025, S ECI 2025 01329, Supreme Court of Victoria), [33]-[36].