On 4 March 2016, a decision of the Environment,
Resources and Development Court of South Australia was handed down
in the matter of Wood v Adelaide Resource Recovery P/L (No
2)  SAERDC 6.
This case involved an EPA prosecution for contravention of
licence conditions in relation to the alleged stockpiling of
'waste' on site.
The case is interesting because it considered the meaning of
'waste' under the Environment Protection Act 1993
(SA). The breadth of the definition in the Act suggests that
surplus materials are technically 'waste', even though they
may be suitable for beneficial uses.
His Honour Judge Costello drew on discussion about the meaning
of 'waste' in other cases to confirm that the
characterisation of matter as 'waste' under the
Environment Protection Act 1993 (SA) is not absolute
– at some point in time, waste material might cease to be
The Court found that this will occur when the character of the
material has changed through, for example, being reprocessed, sold
or gifted. As such, it does not appear to depend on satisfaction of
the criteria in clause 4 of the Environment Protection (Waste
to Resources) Policy 2010 (which provides that 'waste'
continues to be 'waste' unless certain circumstances apply
in which case it is a 'product'). In fact, Judge Costello
concluded that clause 4 is invalid.
In the matter considered by the Court, the 'waste'
consisted of domestic waste that had been collected, delivered to
the defendant's premises and then processed before being
stockpiled ahead of its intended use as refuse derived fuel.
Judge Costello accepted that the material was clearly
'waste' when it was left out on the street and possibly
also when it arrived at the entrance to the defendant's site.
However, once in the defendant's possession it was clearly
'viewed' in a different light because it was
'wanted' as a resource with real value. It had therefore
changed character and was no longer 'waste' for the
purposes of the Act.
Given this conclusion, even if clause 4 of the Environment
Protection (Waste to Resources) Policy 2010 was within power,
Judge Costello found that it had been satisfied.
As such, the EPA's prosecution failed.
The implications of this case are yet to be seen although we
understand that the EPA has indicated that it may appeal the
decision. Even if it doesn't appeal, it is possible that the
decision will prompt the EPA to seek to amend the Environment
Protection (Waste to Resources) Policy 2010 to give better
effect to its intention in terms of the characterisation of
material proposed for reuse.
This is another instalment in a complex area of law, and is
unlikely to be the last, as regulators across Australia grapple
with pre-existing waste legislation in the context of a policy
shift favouring reuse of materials over disposal.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Most awarded firm and Australian deal of
Australasian Legal Business Awards
Employer of Choice for
Equal Opportunity for Women
in the Workplace (EOWA)
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The article is a review of recent developments in compliance, enforcement and prosecutions relating to environmental law.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).