Environment & Planning – “Recycling Collection Depot” or “Waste Transfer Station”?

A recent decision of the Environment, Resources and Development Court (ERD Court) – Regent Street Properties Pty Ltd v City of Port Adelaide Enfield & Whelan Kartaway Pty Ltd [2020] SAERDC 13 – has drawn an important distinction between forms of waste collection in considering what is “recycling” and what is “general waste”.

Background

Whelan Kartaway Pty Ltd (Kartaway) applied to the City of Port Adelaide Enfield for a change of use of land in Ottaway, already approved for light industry, to what it described as “light industry (recycling collection depot)”.

It was proposed that skip bins would be received at the site and that the waste therein would be sorted into separate streams for transfer to third party recycling/reuse facilities, with any residue being sent to landfill. If sorting was unnecessary, bins may bypass the site and be sent direct to third party facilities.

The subject land was within a Light Industry Zone in which the following activities (relevantly) were non-complying:

• General industry
• Special industry
• Waste reception, storage, treatment or disposal other than in the form of a recycling collection depot.

The Council determined the nature of the proposed development to be light industry and a recycling collection depot. On this basis, it determined that the application was not non-complying and was a Category 2 form of development to be assessed on merit.

The Council’s determination was challenged in the ERD Court by an adjoining landowner, Regent Street Properties Pty Ltd (Regent Street) under Section 86(1)(f) of the Development Act 1993 (Act). Regent Street contended that the application was for general industry, not light industry, and that it did not propose a recycling collection depot. Regent Street argued that the Council ought to have determined the application to be for a Category 3 non-complying form of development (as either a general industry or a special industry or, in the alternative, waste reception, storage, treatment or disposal (not being a recycling collection depot)).

In allowing Regent Street’s application, the ERD Court held that while the development application was for a light industry use, it was not a recycling collection depot. Accordingly, it held that the nature of development ought to have been determined to be for waste reception, storage, treatment or disposal (not being a recycling collection depot), which was a non-complying form of development in the Zone.

Did the application propose a light industry?

It was not disputed that the proposed development was ‘industry’, but it was contested whether it was ‘light industry’.

Regent Street contended that the proposed development was not light industry primarily because it would detrimentally affect the amenity of the locality, or the amenity within the vicinity of the locality, through noise and dust emissions.

It claimed the noise emissions would particularly affect Regent Street’s lunchroom. However, the Court rejected this claim, accepting the ‘traditional’ approach of not considering the amenity of non-noise-sensitive receivers. The evidence was that the noise level at the closest noise sensitive receivers, dwellings on the Zone interface, would not exceed the Environmental Protection (Noise) Policy 2007. Placing reliance on this policy, the Court was satisfied that noise from operations at the site would not be sufficiently detrimental.

The Court also held that that any dust produced from the site could be effectively controlled through mitigation measures.

On this basis, the Court found that the proposed development was properly characterised as light industry.

Did the application propose a “recycling collection depot”?

As the Court identified, the ordinary definition of ‘recycling’ is a multi-faceted one, encompassing, among other things, the processes that can be used to transform or repurpose waste materials into new or component parts, as well as the items of waste that can collectively be called “recycling”.

The Court formed the view that the waste transferred to the site was not “recycling”. This was because much of it would need to be extensively segregated and further refined before it could enter the “recycling stream”. The Court said “the purpose of the proposed development and the sorting, segregation and screening processes required at Ottaway demonstrate that the waste, when collected by Kartaway, is still waste’”. As such, it formed the view that the purpose of the proposed development fitted more closely with the definition of a “waste transfer station” than a “recycling collection depot”.

In making this finding, the Court held that the while the Council was correct in its characterisation of the development as a light industry, it erred in determining that the proposal was a “recycling collection depot”. Consequently, the Court found that the application should have been considered as a non-complying Category 3 form of development for waste reception, storage, treatment or disposal.

Implications for Councils

The proper categorisation of waste processing facilities, as this case demonstrates, presents something of a nuanced challenge. Detailed care and consideration must be given to the types of waste materials received and processes involved, the degree of work undertaken, as well as ‘common sense’ factors such as how the waste arrives at the site (e.g. whether or not it is segregated before arriving).

For more specific information on any of the material contained in this article please contact Joanna Clare on 8217 1368 or jclare@normans.com.au.