D & R Lavis Waste & Anor v Mareeba Shire Council & Anor [2005] QPEC 109

- [?.Dos] QPEC 101 Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. Issued subject to correction upon revision. PLANNING AND ENVIRONMENT COURT JUDGE WHITE P & E Application No 247 of 2005 D & R LAVIS WASTE and TROPICAL WASTE SERVICES and MAREEBA SHIRE COUNCIL and ENVIRONMENTAL PROTECTION AGENCY CAIRNS .. DATE 09/11/2005 JUDGMENT REVISED COPIES ISSUED State Reporting Bureau Date: 14 November, 2005 Applicants First Respondent Second Respondent WARNING: The publication of information or detailll likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. 1 4 th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 8 -- 09112005 T16/RGC M/T CNS2/2005 (White DCJ) HIS HONOUR: The applicants applied to the respondent for approval for a material change of use in respect of up to 25 hectares of 100 hectares of rural land near Dimbulah. The land is currently used for growing livestock fodder. The applicants are licensed to collect grease trap waste from restaurants and commercial premises in and around Cairns. Currently the waste is delivered to an operation in Townsville for processing. The grease trap waste is collected by a truck in a 30,000 litre tank. Essentially what the applicants propose is as follows: (a) An area of the subject land will be tilled; (b) The tanker will be driven over the land with the tank valve open thereby spreading the grease trap waste over the ground; (c) The ground upon which the waste is spread will be again tilled; (d) Pasture seed will be planted into the soil; (e) The resulting pasture will be harvested for seed and fodder. Cattle may occasionally graze on the land; (f) It will not always be possible to spread the grease trap waste on the soil directly after collection. There will be two 50,000 litre storage tanks on-site wherein the grease trap waste may be temporarily stored prior to spreading; 2 JUDGMENT 1 0 -- 2 of 8 -- 09112005 Tl6/RGC M/T CNS2/2005 (White DCJ) (g) The appellants propose to deal with approximately 1.5 million litres of waste per annum. The preliminary issue for determination today is whether or not the proposed use is an environmentally relevant activity pursuant to the meaning of that term in the Environmental Protection Act 1994 as amended. So far as is relevant the Environmental Protection Act provides as follows: "18. Meaning of environmentally relevant activity. Environmentally relevant activity means - (b) another activity prescribed under section 19 as an environmentally relevant activity. 19. Environmentally relevant activity may be prescribed. A regulation may prescribe an activity as an environmentally relevant activity if the Governor-in-Council is satisfied: (a) a contaminant will or may be released into the environment when the activity is carried out; and (b) the release of the contaminant will or may cause environmental harm." No issue arises as to the condition of precedent of the satisfaction of the Governor-in-Council. Schedule 1 of the Environmental Protection Regulation 1998 is a comprehensive list of environmentally relevant activities. Schedule 7 of the Environmental Protection Regulation conta s a list of regulated wa.stes including "grease interceptor trap 3 JUDGMENT 1 10 -- 3 of 8 -- 09112005 T16/RGC M/T CNS2/2005 (White DCJ) effluent and residues". The material which the applicants propose to spread is therefore regulated waste. The parties refer to the following relevant environmentally relevant activities in Schedule 1: " 7 5 . Waste disposal - operating a facility for - (b) Disposing of regulated waste. 84. Regulated waste storage - operating a facility for receiving and storing (b) Other regulated waste other than waste stored - (i) On a farm for use as a soil conditioner or fertilizer in carrying out an agricultural activity; or (ii) For use in manufacturing a saleable product under another item of this schedule; or (iii) (iv) 85. For incineration under item 76; or Recycling, reprocessing or reconditioning under items 77 to 79 or 81. Regulated waste treatment - operating a facility for receiving and treating regulated waste to render it less or non-hazardous." 4 JUDGMENT 1 0 -- 4 of 8 -- 09112005 Tl6/RGC M/T CNS2/2005 (White DCJ) Schedule 9, the dictionary of the Environmental Protection Regulation contains the following definition of "facility". "Facility for - (b) An environmentally relevant activity means a premises or other place used for the activity and includes - (i) For Schedule 1, Item 75 - a naturally occurring or constructed hollow or pit including, for example, a gully, mining shaft or quarry (other than a hollow or pit on a farm used for receiving and disposing of general waste produced on the farm." 5 JODGMENT 10 -- 5 of 8 -- 09112005 D.l Tl7/KAN M/T CNS2/2005 (White DCJ) In arguing that the proposed use is not an environmentally relevant activity Mr Cochrane, for the applicants, refers to item 84 set out above. He submits that the regulated waste in this case is to be used as a soil conditioner or fertiliser in carrying out an agricultural activity. I am prepared to accept for the sake of argument that the regulated waste in this case is to be used as a soil conditioner or fertiliser however it seems to me that the term agricultural activity in item 84 should be construed as being consistent throughout the regulation. At the commencement of schedule 1 there is a heading "Aquacultural and agricultural activities." The agricultural activities involved in that section are set out at items 2, 3 and 4. It is sufficient that they do not include the activity proposed by the applicants in this case but even if the acti ty proposed by the applicants is an agricultural activity. Mr Cochrane submits that the legislative intent of the regulation is that the agricultural activity proposed by the applicants is not an environmentally relevant activity. He further refers to the environmental protection (waste management) poli 2000 schedule 1 which sets out a waste management hierarchy including item 2, waste reuse, reusing waste without first substantially changing its form, examples, 6 JUDGMENT 1 0 -- 6 of 8 -- 09112005 D.1 T17/KAN M/T CNS2/2005 (White DCJ) dot point, applying waste to land in a way that gives agricultural and ecological benefits. He therefore submits that what the applicants propose is to reuse the grease trap waste, not dispose of it as per environmentally relevant activity 75 or receiving and treating it as per environmentally relevant activity 85. In my view item 84 environmentally relevant activity is not directly relevant because it refers to storage only. The applicants propose more than storage. Secondly, item 84 and its terms clearly contemplates that the subsequent use of the stored regulated waste can be an environmentally relevant activity. The policy may have some formal statutory force. It would certainly be relevant to the way in which the Environmental Protection Agency and potentially the Planning and Environment Court deals with any development application but in my view has no relevance as an aid to construing the Environmental Protection Act or Regulation. In my view what is proposed by the applicants in this case is an environmentally relevant activity pursuant to item 75 .. In my view the definition of facility for item 75 is sufficiently wide to include the land upon which the applicants propose to carry out their activity. In conclusion 7 JUDGMENT 1 -- 7 of 8 -- 09112005 0.1 T17/KAN M/T CNS2/2005 (White DCJ) there in my view the proposed application was for an environmentally relevant activity. 8 1 JUDGMENT -- 8 of 8 --