‘Waste Reform’ Amendments – Potential Unintended Consequences for Council Development Plans?

A package of ‘waste reform’ amendments to the Environment Protection Act 1993 (EP Act) came into force on 1 June 2019.

While a primary purpose of the amendments is to provide greater certainty for waste industry operators as to when environmental authorisation is required under the EP Act, there may be unintended consequence for council Development Plans which include cross-references to definitions in the EP Act.

Waste reform amendments

Schedule 1 of the EP Act contains a list of “prescribed activities of environmental significance”, for which authorisation under the EP Act, in the form of a licence, is required.

Previously, “the conduct of a depot for the reception, storage, treatment or disposal of waste” was a prescribed activity under clause 3(3), but subject to ten exceptions and various sub-exceptions as listed in the subclauses (a) to (j) for things such as temporary storage, domestic waste at residential premises, certain kinds of recycling or reuse, beverage containers and so-called “limited purposes” depots.

Clause 3(3) has been removed, and replaced with more detailed definitions for specific waste-related activities, namely, “waste recovery” (subclause 3(1)), “waste reprocessing” (subclause 3(2)) and “waste disposal” (subclause 3(3)).

By focussing on specific activities, the definitions are more targeted which also reduces the need for a long list of exceptions as previously existed. Rather, each waste activity is subject to a general exception where the EPA is satisfied, having regard to prescribed factors, that the activity does not justify an environmental authorisation.

Unintended consequences for development plans?

While these changes are likely to be beneficial for the waste industry, which wants more certainty, it may have unintended consequences where development plans include cross-referencing to definitions or provisions in the EP Act.

For example, if a non-complying list, or principles or objectives in a development plan, adopt the previous terminology of a “depot for the reception, storage, treatment or disposal of waste”, or if they are linked to a “licensed waste depot”, there may be a disconnect with the licensing regime under the EP Act.

Take away

Council planners should familiarise themselves with the new definitions in Schedule 1, and consider what, if any, consequential impacts may arise having regard to the provisions of the development plan.

The broader message is to remind those involved in preparing the Planning and Design Code that, while evidently convenient, cross-referencing terms or concepts in other legislation or statutory instruments requires careful consideration.