2017 National Waste Report preview

2017 National Waste Report preview

G&B Lawyers were pleased to attend the Presentational Event and Round Table Discussion: Australia 2016 in relation to Recycling Technology for the Industry on Tuesday 6 December 2016.

During the event, we were granted a preview into the National Waste Report that is due to be released in 2017. The report is being prepared by Blue Environment Pty Ltd and Randell Environmental Consulting on behalf of the Federal Government.

It was indicated that the report would be compiled using data from 2014 to 2015 that has been collected from each jurisdiction, national data sources and the Australian Bureau of Statistics. The data will be pooled to create a national waste data set for municipal solid waste, construction and demolition waste and commercial and industrial waste but excludes primary production waste.

We look forward to the release of this report in 2017 to show us where the opportunities and challenges lie within the waste industry within Australia.

G&B Lawyers

Office: Suite 1, Level 1, 229 Macquarie Street, Sydney, NSW 2000

Mail: GPO Box 1849, Sydney, NSW 2001

M: 0481 287 528 | 0411 067 367

E: info@gandblawyers.com.au

W: www.gandblawyers.com.au

G&B Lawyers proud corporate partners of the Sydney Kings NBL season 2016-2017

G&B Lawyers

Office: Suite 1, Level 1, 229 Macquarie Street, Sydney, NSW 2000

Mail: GPO Box 1849, Sydney, NSW 2001

M: 0481 287 528 | 0411 067 367

E: info@gandblawyers.com.au

W: www.gandblawyers.com.au

Partner Profile - Kim Glassborow

Kim Glassborow is a Partner at G&B Lawyers, a Sydney city firm offering specialised legal services in waste management, town-planning, environmental law and property.

She provides strategic advice on all aspects of town-planning, local government and environmental law. 

Kim was previously the Senior Legal Counsel at Dial-A-Dump Industries (a large waste management and landfill facility) and The Next Generation (NSW) Pty Ltd who are proposing the first Energy from Waste facility in NSW. Prior to that, she was a Senior Lawyer at Clayton Utz in Sydney.

Kim advises clients on a wide range of planning and environment related matters, including merit appeals and judicial reviews in the Land & Environment Court, contaminated land legislation, compulsory land acquisitions, valuation disputes, pollution incidents, regulatory issues, prosecutions and enforcement proceedings.

Over the last 12 years, Kim has advised clients and acted in matters involving State and Federal legislation, issues and regulators and she regularly liaises with various government authorities and departments at a Local, State and Federal level.

Kim is also the author of the Lexis Nexis legal publication entitled ‘Annotations to the NSW Land and Environment Court Act & Rules’ and has a Bachelor of Arts (Hons) / Bachelor or Laws from the University of New South Wales.

G&B Lawyers

Office: Suite 1, Level 1, 229 Macquarie Street, Sydney, NSW 2000

Mail: GPO Box 1849, Sydney, NSW 2001

M: 0481 287 528 | 0411 067 367

E: info@gandblawyers.com.au

W: www.gandblawyers.com.au

G&B Lawyers 'Legal Eagle' column for the Inside Waste publication

EPA's extension of the Waste Less, Recycle More initiative

OCTOBER 2016 | EPA’s extension of the Waste Less, Recycle More initiative

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Available funds under the extended Waste Less, Recycle More initiative for 2017 to 2021 = $337 million

Waste and Recycling Infrastructure Fund

·         $8 million for resource recovery expansion and enhancement grants

·         $25 million for major resource recovery infrastructure grants, in partnership with the Environmental Trust

·         $14.5 million for auditing, education and support

·         $0.5 million for weighbridges

Organics Infrastructure Fund and Program

·         $4.5 million for organics market development including $3 million in grants

·         $14 million for organics infrastructure grants, in partnership with the Environmental Trust

Business Recycling Program

·         $12.5 million Bin Trim grants and small scale equipment rebates

·         $5 million for industrial ecology networks in the commercial and industrial and construction and demolition sectors throughout NSW

·         $5 million for other business initiatives

Recycling Innovation Fund

·         $5 million for Recycling Innovation Fund grants, in partnership with the Environmental Trust

Additional funding will be available through grants funding after 1 July 2017.

If you have any queries, please contact us below.

Kim Glassborow | Partner  G&B Lawyers M: 0481 287 528 Suite 1, Level 1, 229 Macquarie Street, Sydney NSW 2000 E: kglassborow@gandblawyers.com.au Nathan Buckley | Partner G&B Lawyers M: 0411 067 367 Suite 1, Level 1, 229 Macquarie Street, Sydney NSW 2000 E: nbuckley@gandblawyers.com.au

EPA proposed regulatory changes for 2017

New minimum standards for managing construction and demolition waste in NSW – EPA Consultation Paper

On 21 October 2016, the EPA released a Consultation Paper titled New minimum standards for managing construction and demolition waste in NSW. You may view it online via the following link: http://www.epa.nsw.gov.au/resources/wasteregulation/nsw-managing-construction-demolition-waste-minimum-standards-160545.pdf

We thought it would be beneficial to draw your attention to some of the proposed changes listed below.

1.    Repeal of the Proximity Principle offence in clause 71 of the Protection of the Environment Operations (Waste) Regulation 2014 (NSW).

a.    The paper states that “enforcement is challenging and new tools are needed to address the continued transport of waste”.

b.    There will be new penalties for not reporting interstate transport of waste ($7,500 for corporations and $3,750 for individuals).

c.    This means that businesses will be able to lawfully transport waste more than 150kms.

2.    Licencing of intermodal facilities

a.    Facilities at which waste is transferred between vehicles or modes of transport will be required to be licenced. This includes rail facilities.

3.    Clarification of the application of transported waste deductions

a.    This amendment proposes to include the requirement for waste facilities claiming a transported waste deduction to provide evidence of the lawfulness of the receiving facility. Evidence will include proof of a relevant Environment Protection Licence, development consent and weighbridge dockets.

4.    Clarification on the waste levy payment obligations

a.    This amendment proposes to clarify that where a levy is paid, it will be refunded when that waste is sent off site to a lawful facility.

5.    Inspection and sorting requirements at licenced construction and demolition waste facilities, including:

a.    Mandatory written procedures;

b.    Dedicated on-site storage areas for materials;

c.    Incoming inspection requirements;

d.    Sorting requirements; and

e.    Processing requirements.

6.    Clarification on asbestos requirements

a.    This amendment proposes to include the requirement that asbestos is to be transported in a fully covered and leak-proof container.

7.    Requirement to undertake mandatory annual volumetric surveys

a.    It is proposed that this requirement will be removed for particular facilities.

It is proposed that these changes will be legislated from 1 March 2017.

If you wish to make any submissions on the Consultation Paper, please let us know. The consultation period closes on 17 November 2016. For more information on the consultation process go to http://www.epa.nsw.gov.au/wasteregulation/managing-construction-demolition-waste-minimum-standards.htm

G&B Lawyers

Office: Suite 1, Level 1, 229 Macquarie Street, Sydney, NSW 2000

Mail: GPO Box 1849, Sydney, NSW 2001

M: 0481 287 528 | 0411 067 367

E: info@gandblawyers.com.au

W: www.gandblawyers.com.au

G&B Lawyers Partner | Kim Glassborow (Articles for the Inside Waste Magazine 2016)

G&B Lawyers

Office: Suite 1, Level 1, 229 Macquarie Street, Sydney, NSW 2000

Mail: GPO Box 1849, Sydney, NSW 2001

M: 0481 287 528 | 0411 067 367

E: info@gandblawyers.com.au

W: www.gandblawyers.com.au

G&B Lawyers proud corporate partners with the Sydney Kings 2016-2017

www.gandblawyers.com.au

Everything you need to know about the Compulsory Acquisition process

The Compulsory Acquisition (sometimes known as resumption) of land is the power of Federal, State and Local governments and authorities to take ownership of privately owned land.

It seems like the NSW Government is on an acquisition frenzy casting a shadow over the future of many property owners and business operators.

In particular, a recent article in the Sydney Morning Herald indicated that of the 424 properties marked for acquisition, 111 properties were yet to be acquired for the WestConnex project.

What can the property owners in Sydney’s inner west expect if their property is chosen?

How does Compulsory Acquisition of Land work?

1.    Taking it right back to the beginning, plans for the extension, upgrade or creation of new infrastructure are determined by the NSW Government. For example, the WestConnex project for the extension of the M4 East motorway via underground tunnels.

2.    Property owners who have properties that lie within the area required to be used for the project receive letters from an acquiring authority notifying them of the following:

a.    Their property is to be acquired;

b.    A valuer will be appointed to value their property; and

c.    That the property owner is entitled to engage an independent and registered valuer to value their property.

This letter is called a “Proposed Acquisition Notice”. In the case of WestConnex, the acquiring authority was “WestConnex Delivery Authority”. It is always our recommendation to obtain legal advice early.

3.    The appointed valuers for the acquiring authority will conduct their valuation of the property.

4.    Property owners will then receive a letter of offer from the acquiring authority.

5.    If the offer is not acceptable to the property owners, they can finalise their valuation and submit a counter offer to the acquiring authority.

6.    Negotiations between the acquiring authority and the property owners will then proceed.

7.    Where agreement cannot be reached between the parties, the compulsory acquisition process governed by the Land Acquisition (Just Terms Compensation) Act 1991 begins.

8.    The acquiring authority will make an application to the relevant government minister for approval to compulsorily acquire the property. In the case of WestConnex, the relevant minister was the Minister for Roads, Maritime and Freight.

9.    Once approved, notice of the compulsory acquisition will be published in the Government Gazette at which date the property will become legally owned by the acquiring authority.

10.  Within the next 30 days, the acquiring authority must give the property owners written notification of the compulsory acquisition, advise the property owners of their entitlement to compensation as well as the amount of compensation that has been determined by the Valuer-General.

11.  The property owners will then have 90 days to consider the offer and either accept the amount of compensation or object to the amount of compensation via commencing proceedings in the NSW Land and Environment Court.

12.  If the property owners accept the amount of compensation offered, they are required to enter into a Deed of Release with the acquiring authority. The compensation will then be paid within 28 days of the acquiring authority receiving the completed Deed of Release.

13.  If the property owners decide to reject the offer of compensation and commence proceedings in the NSW Land and Environment Court, the property owners are required to give the acquiring authority notice of the proceedings.

14.  Where the property owner agrees, an advance payment of 90% of the compensation offered will be paid to the property owner within 28 days of the acquiring authority receiving notification. The money is otherwise held in a trust account pending the decision of the NSW Land and Environment Court.

15.  After the acquiring authority has paid 90% of the compensation, it is entitled to vacant possession of the property.

16.  Compensation will then be determined by the NSW Land and Environment Court (or a higher Court such as the Full Court of the Supreme Court of NSW where required). Factors that are to be taken into consideration include:

a.    Market value at the date of acquisition;

b.    Special value incidental to the property owners use of the land;

c.    Loss attributable to severance of land where appropriate;

d.    Disturbance losses including relocation costs, legal fees and valuation fees; and

e.    Solatium (i.e. compensation for non-financial disadvantage arising from the necessity to relocate).

How can G&B Lawyers help you?

Property Owners faced with the prospects of Compulsory Acquisition are permitted to obtain independent legal and valuation advice in relation to the process and their entitlements. The reasonable fees of the legal advice and valuation advice are covered by the acquiring authority.

Property owners should therefore have no hesitation in contacting G&B Lawyers for assistance. G&B Lawyers are experts in compulsory acquisition negotiations having been involved in compensation appeals in the NSW Land and Environment Court.

We will assemble an experienced team of professionals to ensure that the property owner is happy with the amount of compensation and with the outcome and will not walk away out of pocket.

For an obligation-free discussion, contact Kim Glassborow (Partner) on Mobile 0481 287 528 or Email kglassborow@gandblawyers.com.au

 

G&B Lawyers

Office: Suite 1, Level 1, 229 Macquarie Street, Sydney, NSW 2000

Mail: GPO Box 1849, Sydney, NSW 2001

M: 0481 287 528

E: info@gandblawyers.com.au

W: www.gandblawyers.com.au

Reference to Sydney Morning Herald article: http://www.smh.com.au/nsw/cost-of-westconnex-property-acquisitions-set-to-exceed-15b-20160914-grg2zc.html

Damning report into chemotherapy underdosing in the Central West

A damning report into chemotherapy underdosing in the Central West has revealed 28 patients were given incorrect doses of drugs.

That number is expected to increase with Health Minister Jillian Skinner admitting investigators were unable to review all data for all patients treated by Dr John Grygiel from 2006 to March 2012.

The report has been criticised for being too narrow, with Dr John Grygiel working in the region since 1989.

If you or someone you know was treated by Dr John Grygiel between 1989 and 2006, contact Nathan Buckley, Partner on 0411 067 367 or email nbuckley@gandblawyers.com.au to discuss whether you have a claim for medical negligence.

Recent Land and Environment Court Sentencing Judgment – Phillip Foxman

On 15 September 2016, Justice Sheahan of the NSW Land and Environment Court (LEC) handed down the long awaited sentencing judgment in the matter of Environment Protection Authority v Foxman Environmental Development Services; Environment Protection Authority v Botany Building Recyclers Pty Ltd; Environment Protection Authority v Foxman (No 2) [2016] NSWLEC 120.

 

See https://www.caselaw.nsw.gov.au/decision/57d74b9be4b0e71e17f54104.

On 22 December 2011 the NSW Environment Protection Authority (EPA) brought six charges against the Defendants and were successful in its prosecution. The Defendants included:

-       Foxman Environmental Development Services Pty Ltd;

-       Botany Building Recyclers Pty Ltd; and

-       Mr Philip Foxman

Briefly, it was found that waste material comprising processed construction and demolition waste and asbestos, was transported from Botany Building Recyclers Pty Ltd materials processing facility at Banksmeadow to 76 hectares of land known as “Foxman’s Valley” and owned by Foxman Environmental Development Services Pty Ltd in the Wollondilly Shire.

Foxman Environmental Development Services Pty Ltd had purchased the land with the intention of it becoming Mr Foxman’s retirement home and a place where roadbase could be developed. Mr Foxman conceded that he was the “directing mind and will” of both the other Defendants.

The charges laid against the Defendants by the EPA were for:

-       Using land as a waste facility without lawful authority in contravention of section 144(1) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act); and

-       Causing waste to be transported to a place that could not lawfully be used as a waste facility in contravention of section 143(1) of the POEO Act

Each of the penalties described under the POEO Act carry a $250,000 fine for an individual and a $1,000,000 fine for a corporation as well as daily penalties under section 144 of the POEO Act where the offence continues in the amount of $60,000.

In the sentencing judgment, Justice Sheahan stated that:

“Foxman (directly, and as the controlling mind of his companies) clearly intended to transport the offending material to Foxman’s Valley, and have it placed at particular locations on that property.” [68]

“He was fairly well informed of the detailed regime covering waste disposal and exemptions, and admitted at the trial some consciousness of his material’s non-compliance with that regime, but he considered the regime impractical and too strict, and structured his operations accordingly.” [69]

“He wanted, at the same time, to improve his proposed retirement property, to maximise the capacity of his fee-charging Banksmeadow plant, and to develop at Foxman’s Valley a profitable roadbase product, avoiding the payment of waste levies (estimated to amount to $936,510.00).” [70]

“The major criminality in this case is on the part of Foxman himself. He was deeply, and personally, involved in every aspect of the behaviour proven against the two companies he dominated, as well as himself.” [118]

“The financial penalty to be imposed has to be proportionate to the proven criminality, viewed as a whole, but the major burden should fall on Foxman, as the author and chief manager of the scheme.” [121]

The orders of the LEC are set out in summary below.

Total fines for offences

Foxman Environmental Development Services Pty Ltd                    $100,000

Botany Building Recyclers Pty Ltd                                                     $40,000

Phillip Foxman                                                                                    $250,000

Additional financial penalties

Prosecutor’s legal costs                                                                      $500,000 (estimate)

Investigators Costs                                                                             $4,646

The total costs liable to be paid by Mr Foxman is approximately $900,000.

Other orders

Publication Order in the Sydney Morning Herald and Inside Waste Magazine

Clean up order within 90 days of the date of the order. At the trial, Mr Foxman estimated that it could cost between $10-15 million to comply with the clean-up notice.

The rules and regulations that Mr Foxman believes are “too strict” and “impractical” [see para 75] but are in place to protect the environment, have now arguably caught up with him.

Some may question whether the penalty imposed is enough against Mr Foxman personally as the $250,000 penalty (which is the maximum amount that can be penalised in the case of an individual for contravention of section 143 or 144 of the POEO Act) is in fact made up of three separate offences against both section 143 and 144 of the POEO Act.

The LEC did have the power to order a higher penalty against Mr Foxman, but refrained from doing so.

Perhaps, if the protocol for calculating the monetary benefits that is supposedly being developed by the EPA in accordance with section 249 of the POEO Act was in place, the penalty imposed may have been much greater.

In any event, this sentencing judgment should deter other operators within the waste industry from having a complete disregard for the rules and operating as they see fit, and may assist in creating a more level playing field for all.
If you have any queries, please contact G&B Lawyers | Kim Glassborow (Partner) on 0481 287 528 or kglassborow@gandblawyers.com.au

 

EPA's Container Deposit Scheme - UPDATE

Where are we at?
Since the New South Wales Premier’s announcement in September 2015, the NSW Government has been working towards creating their own, state wide refund Container Deposit Scheme (CDS). The purpose of the CDS is to address litter problems across NSW and to improve recycling.

On 8 May 2016, a challenging commencement date of 1 July 2017 was announced.

On 23 August 2016 the draft Bill (Waste Avoidance and Resource Recovery Amendment (Container Deposit Scheme) Bill 2016 (NSW)) and the CDS Regulatory Framework Discussion Paper was released for a 4-week consultation period. A number of public consultation sessions were held and have now ended.

Public submissions are still being encouraged and will be accepted up until 21 September 2016.

Public Consultation Session

G&B Lawyers attended a recent public consultation session to understand some of the issues that are being grappled with and likely to arise in the future due to this significant change to waste industry.

Following the public consultation session and after reviewing the documents released for public consultation, we have highlighted a number of questions that we have.

Questions

Scheme Coordinator

There is to be a single Scheme Coordinator responsible for the financial management of the CDS and the targets that will be set. The Scheme Coordinator will be appointed by the Minister for the Environment via a competitive selection process. The Scheme Coordinator will be required to enter into a contract with the NSW Government. It appears that the Scheme Coordinator, whilst bound the contract with the NSW Government, will have some power over the operation and the success of the CDS. Anyone or any company could apply to be the Scheme Coordinator, including beverage suppliers and waste operators, perhaps even a Government Department.

Ø  Is the legislation that dictates the contents of the contracts for the Scheme Coordinator tight enough to ensure that the interests of all under the CDS are protected, whilst still providing incentive for person or company to take on the role as Scheme Coordinator?

Network Operators

There may be as many Network Operators as is desired. Network Operators are responsible for the providing the infrastructure and logistics of the collection points and will also enter into a contract with the NSW Government. It is expected that Network Operators will each be required to set up and service a state-wide network of collection points. Further details are to be provided in the Regulation.

Ø  Is the requirement for “state-wide coverage” too high?

Ø  How does a person or company that wants to be a Network Operator buy into the system?

Ø  Do they have to have possession of vacant land or an option to enter into possession of vacant land throughout NSW to be considered as a Network Operator?

Ø  What if there is one company that can meet the requirements of “state wide coverage” that does not enter into agreements with other people or companies to share their collection points, thus rendering the system non-competitive?

Ø  Will the handling fee be high enough to incentivise people or companies to be Network Operators?

Ø  Will the system fail if large entities such as Coles or Woolworths or petrol station chains set up their own, non-legislated, collection points, and transport containers to one or a couple of legislated collection points?

Infrastructure

Collection points are proposed to be by reverse vending machines or a specifically designed facility for the collection and handling of containers. As most people would appreciate, setting up this infrastructure is costly and will require a substantial amount of time. The proposed commencement date for the CDS is July 2017. To install all, or at the least some, collection points throughout NSW, there will be a number of developments requiring consent from the relevant authority.

Ø  Is a regulatory exemption for reverse vending machines appropriate?

Ø  Once chosen, will the chosen Network Operators have enough time to design, construct and open collection points before July 2017?

Ø  Will there be an appropriate transition period to allow the Network Operators to set up the collection points?

Ø  Will any financial assistance be offered to the Network Operator to install the infrastructure?

Contracts

At the commencement of the CDS, there will be a variety of contracts on foot for the collection of waste. These contracts may be in any form such as fixed term or fixed amount of a particular waste stream.  There is the potential for a number of contractual issues to arise if this situation is not considered and addressed.

Ø  Will there be any guidance or regulation in relation to circumstances where the new legislation makes a party to a contract breach an essential term of the contract (for example, where there is no longer enough waste to reach the required contractual amount?

Commencement date

As stated above, the commencement date for the CDS is proposed to be 1 July 2017. At this stage there are a number of unknowns such as the standard government contracts that will be required to be entered into by the successful Scheme Coordinator and Network Operators including what handling fee will be paid to Network Operators.

Ø  Will infrastructure be ready as at 1 July 2017 for the CDS to commence?

Ø  Will labelling from the suppliers be ready for the CDS, particularly when we are unaware of the containers that will be included in the CDS as this stage?

Ø  Would it be more practical for NSW to wait for the Queensland CDS to be more progressed before commencing?

NSW Government Model

The model that has been put forward by the NSW Government seems to pass responsibility for the CDS onto private citizens and companies. The NSW Government will remain in control of the CDS having an overarching ability to control the contracts pertaining to the Scheme Coordinator and Network Operator and the regulation of the system. The logistics, targets, and further finer details in relation to the operation of the CDS will be left to the Scheme Coordinator to determine.

Given the large responsibility and power given to the Scheme Coordinator and the potential flaws in the CDS, it is important to ensure that the system that is set up, will not fail and will be workable for the proposed 20 years.

Ø  Is the NSW Government rushing the deadline to implement the CDS in order to keep an election promise at the expense of implementing and system that is destined to fail?

In our last blog on the CDS were noted that we have very few details on how the CDS will work in practice.

Now, we can report that we have more details, but not nearly enough to say that it will be workable. So, our question still remains – is the NSW government on track to deliver?

G&B Lawyers

Office: Suite 1, Level 1, 229 Macquarie Street, Sydney, NSW 2000

Mail: GPO Box 1849, Sydney, NSW 2001

M: 0481 287 528

E: info@gandblawyers.com.au

W: www.gandblawyers.com.au