A recent decision of the State Administrative Tribunal (SAT) casts further uncertainty on the commerciality of construction and demolition (C & D) waste recycling operations in a Perth Metropolitan context.
As has been outlined in previous articles, the opportunity to recycle C & D waste is a significant driver to effectively reduce waste diverted to land fill by encouraging the reuse of that material in relevant circumstances. The use of that recycled material has been the subject of considerable scrutiny in the Supreme Court, most recently in the decision of Beech J and Eclipse Resources Pty Ltd v the State of Western Australia1 (Eclipse) which effectively determined that recycled waste, and indeed clean fill, amounts to “waste” for the purposes of the suite of legislation and regulations comprising the Waste Avoidance and Resource Recovery Act2.
Since the decision of Eclipse was handed down, a considerable period of uncertainty has prevailed in relation to whether or not land filling operations or indeed development sites using recycled fill material were liable to the waste levy. A recent reform project run by the Department of Water and Environmental Regulation proposes to amend the current statutory regime to avoid that position occurring but no resolution has been formalised in that regard to date
The matter of G & G Corp Asset Management Pty Ltd and the Presiding Member of the Metropolitan East Joint Development Assessment Panel3 involved the review of a development application which involved crushing and screening of C & D waste on a previously approved land fill operation for the rehabilitation of a former sand quarry.
Relevantly, the development application, the subject of the review proceedings in SAT proposed the crushing and screening of C & D waste on the land fill site and for approximately 60% of that screened material to be utilised for the purpose of filling of the site and the remaining, unusable waste, to be removed from the site and disposed of as appropriate land fill.
Relevantly, the development application indicated that no material resulting from the crushing and screening process would be sold or used productively elsewhere, and would only be used for the purpose of filling the site.
Importantly, it was the SAT’s view that the crushing and screening of C & D waste material proposed in the development application was not properly classified as a component or element of the filling and rehabilitation of the existing land use for the following reasons:
Interestingly, Judge Parry indicated in his decision that:
“This dual outcome of the crushing and screening processes precludes it from being properly classified as an element or a component of the filling and rehabilitation use. Rather it is a separate and distinct industrial land use which would produce both homogenous clean sand fill that G and G Corp can utilise in filling the site and material which is not suitable for the filling of the site but which, although are not able to be sold for and aside, could be productively utilised elsewhere.”
This finding that crushing and screening in a recycling operation, is a separate and distinct land use has significant consequences in a Perth metropolitan context. What it effectively means is that crushing and screening, which is a use of inherently industrial nature is unlikely to be accommodated in any zoning other than one which contemplates “industry-general” or “industry-noxious” uses.
That being the case, the reality is that the limited availability of sites fitting that zoning in a Perth metropolitan environment means that C & D recycling operations would as a necessity need to be located in purpose built facilities in industrial zones or in rural zones in areas where local planning schemes can accommodate uses of this nature.
Further, the traditional approach to crushing and screening C & D waste within the boundaries of a land fill site would be appear to be no longer available, further impacting on the commerciality of those operations conducting operations of this sort.
As operators will be required to crush and screen in remote locations and transport the recycled product to land fill sites which may have detrimental impacts on the industry.
In our view a significant reform is required to deal with this consequence and careful consideration should be given to land use provisions set out in local planning schemes in order to achieve the ability to recycle and reissue C & D waste in a financially viable manner.
Without any joined up thinking in that regard, the opportunity to beneficially use C & D waste as a product in land development may be short lived. If you have any queries in relation to this particular case or its impact on your development please do not hesitate to contact the Lavan team.
[1] [4] [2016] WASC62
[2] 2007
[3] [2018] WASAT 9
