The case of Scott Greenwood v Environment Protection Authority [2025] NSWLEC 1051 concerned Class 1 Appeal proceedings challenging the NSW Environment Protection Authority's (EPA) decision to vary the Environment Protection Licence (EPL) for “Greenwood Landfill". This case serves as an important reminder on the interplay between development consents on one hand and EPLs on the other as they apply to waste facilities. What is permitted by a development consent may influence what constraints the Court will accept in any appeal challenging the EPA's attempt to vary an EPL. As a result, this case witnessed the EPA construing the development consent narrowly, whilst the owner and the Court gave breadth to the development consent. 

Under section 58 of the Protection of the Environment Operations Act 1979 (NSW) (POEO Act), the EPA sought to: 

• delete ‘building and demolition waste’ and ‘asphalt waste’ as acceptable waste types and instead insert ‘concrete’ and ‘bricks'; 

• remove landfilling as a permissible activity; and  

• impose a waste storage limit.  

Mr Greenwood (the Applicant), appealed the EPL variation. 

The Court considered whether it should vary the EPL so as to: 

1. Change the waste types able to be received at the premises. 

2. Remove 'waste disposal (application to land)' from the list of permitted scheduled activities. 

3. Impose a waste storage limit of 26,000 tonnes at any one time.  

Ultimately, the appeal was partially upheld with ‘building and demolition waste’ allowed to remain on the EPL as an acceptable waste type.

In determining what waste types could lawfully be received, the Court said that the parties took fundamentally different interpretations to what was permitted by the development consent (at [50]). 

The EPA took the view that only ‘sandstone, soil, masonry, and vegetation’ (or their equivalent) could be received. The Applicant argued that the materials that could be received were not so restricted and rather, a broader range of materials could be imported and screened on the premises for the recycling of ‘sandstone, soil, masonry, and vegetation’ (or their equivalent) (at [51]). 

The Court found that the development consent did not clearly articulate what waste types could be received for ‘stockpiling, recycling and resale’, but rather focused on what materials can be imported for the purposes of screening and recycling at the premises (at [55]).  

The Court had regard to the fact that the EPL was in practice, the primary regulatory mechanism determining the types of waste that could be received and recovered for the last 20 years as the development consent was granted in 1987 with only limited modifications since that time with respect to what waste could be received (at [56]). The EPL had permitted ‘building and demolition waste’, ‘VENM’, ‘garden waste’, ‘asphalt’, ‘office and packaging waste’ and ‘waste tyres’ to be received since at least 2010 (at [57]). In reliance on those facts, the Court found that there was nothing in the development consent that prevented the receipt of those waste types that had been permitted by the EPL for the previous 15 years (at [58]).  

The Court gave further consideration to whether 'building and demolition waste' should continue to be received at the premises and found: 

• from a practical and historical perspective, it is not reasonable to expect that the waste received has been ‘pre-screened’ and ‘segregated’ into the various permitted waste types prior to arrival at the premises (such as ‘concrete’ and ‘bricks’) (at [60]); 

• ‘building and demolition waste’ inherently contains other materials that require screening at the premises prior to further processing (at [60]); and 

• to replace 'building and demolition waste' with ‘concrete’ and ‘bricks’ will result in a financial loss for the current operations as customers are likely to take their waste to an alternative site where pre-screening of applicable waste types is not required (at [62]). 

The Court found that it was appropriate to remove the scheduled activity of 'waste disposal (application to land)' from the EPL because: 

• landfilling could not be carried out unless and until the construction of the landfill cell had been completed (which it had not been) (at [80]); 

• it would be premature to allow receipt of waste for the purpose of landfilling as the EPA would have no way of determining whether the landfill cell under construction is appropriate to receive waste and what type of waste should be permitted to be disposed of within the cell (at [81]); 

• there is no facility for landfilling (at [83]); and 

• while not binding, the EPL summary in the variation said that the EPA would re-instate these conditions onto the licence once the landfill cell has been completed and the EPA has provided written approval to the licensee that landfill in the new cell can occur (see paragraph [84–85] of judgment). 

As a result of this finding, the Court found that given the EPL said that ‘office and packaging waste’ and ‘waste tyres’ could only be received for the purpose of landfilling, it was appropriate for those waste types to be removed from the EPL (at [76]). 

Further, the Applicant agreed to 'asphalt' being removed from the EPL as a waste type that could be received (at [74]). 

The Court determined the particulars of a condition that would impose a limit on the amount of waste that could be stored on the premises at any one time. 

Given there were already stockpiles that exceeded the proposed 26,000 tonne amount, the Court imposed a condition that staggered the storage limit so that it was gradually reduced over time rather than a condition having immediate effect, which would have put the Applicant in breach of the condition (see [89–96]).  

There was a contest in the proceedings because the Licence Variation Summary was inconsistent with the 2024 Licence.  

The Court accepted the EPA's arguments that the Licence Variation Summary did not form part of the Notice given to the Applicant pursuant to s 58(5) of the POEO Act. As such, the Licence Variation Summary is an aid to the understanding the Variation Notice and not the Licence itself (at [99]). Further, the issue of the Licence Variation Summary is not an exercise by the EPA of its licencing functions and is therefore not amenable to appeal under s 287 of the POEO Act (at [100]). 

• A Licence Variation Summary does not form part of the EPL itself but can assist in understanding an EPL variation notice.  

• While the EPA has the power to prohibit something that would otherwise be permitted by a Development Consent, a development consent is still relevant to the question of what should and should not be permitted to be received.  

• Construing a development consent is important for determining what activities and waste types should be included in an EPL. Some older consents are more relaxed than newer consents meaning that some operators have more flexibility under development consents than those that have been subject to the present, more rigorous planning approval regime.  

• If scheduled activities cannot be carried out, the EPA may seek to remove them from EPLs.  

If you would like further guidance on this decision or its implications, please contact our Planning, Government, Infrastructure & Environment team for trusted advice and support.