The laws relating to new and existing composting facilities have changed. This article summarises the changes with particular focus on the new “4 kilometre rule”.
The amendments are to the Environmental Protection Regulation 2019 which operates under the Environmental Protection Act 1994.
The amendments are made by the Environmental Protection (Composting Facilities) Amendment Regulation 2024.
They introduce a new test based on a 4 kilometre rule, so it is recommended that you assess whether your site is within or outside the 4 kilometre area.
The activity caught by these amendments is “organic material processing” which is then defined to be environmentally relevant activity (“ERA”) 53. A question arises about other ERAs, such as ERA 55, which can involve processing organic material, that is not ERA 54, but we will not delve into that vexed question here.
The next steps are to assess whether the organic material processing is being carried out within the 4km distance, and whether the feedstock falls within the definition of “odorous feedstock”.
The 4km Rule
The distance calculation is based on the site of the organic material processing facility being within “4km of the boundary of a residential zone.”
“Residential zone” is specifically defined by reference to the Planning Regulation 2017 which picks up the standardised zone definitions in that regulation. The residential zones are:
(a) general residential zone;
(b) low density residential zone;
(c) low-medium density residential zone;
(d) medium density residential zone; and
(e) high density residential zone;
(f) character residential zone;
(g) tourist accommodation zone.
The definition does not pick up the rural zone or a rural residential zone.
The rule does not require that a dwelling has been built on the land in the residential zone. The land can be vacant, disused, or used for a non-residential purpose. If this is the case, it would be relevant to making the decision whether to impose the enclosed or in-vessel system conditions.
One issue may be with planning scheme amendments in future creating new residential zones near existing facilities and triggering the ability to amend an EA for an existing facility that was not operating as an enclosed system or in-vessel system.
For example, the 4km rule does not apply to land in the emerging community zone, but that land is very likely to become a residential zone in the future.
Odorous Feedstock
“Odorous Feedstock” is specifically defined to mean those materials listed below. The definition is a “means” definition rather than an “includes” definition, which provides greater certainty as to what is, and what is not, an “odorous feedstock”.
The list is:
- abattoir waste (Examples— animal effluent, bone material, blood, paunch material, tallow waste)
- acid sulfate soils and sludge
- animal manure including waste water from holding yards
- animal processing waste, other than fish or poultry processing waste (Examples— dead animals or parts of dead animals, milk waste, mixed animal manure and animal bedding organic waste)
- biosolids that are not stabilised biosolids
- brewery and distillery effluent
- fish processing waste (Examples— fish bones and other remains, waste water from fish processing)
- food processing treatment tank, or treatment pit, liquids, solids or sludges
- grease trap waste
- food processing effluent and solids
- poultry processing waste (Examples— abattoir effluent and sludges, egg waste, feathers, meat and bone leftovers)
- protein-based food organics (Examples— expired protein-based food from supermarkets)
- a substance used for manufacturing fertiliser for agricultural, horticultural or garden use (Examples— ammonium nitrate, dewatered fertiliser sludge)
This list is similar to the list of composting feedstocks with high or very high odour ratings in the model operating conditions published by the DESI.
Proposed New Facilities
When assessing an application for an environmental authority the DESI must consider whether to impose either of the following conditions (note the word “consider” may leave some room to present a case to the DESI in an application, and then by way of an internal review application, and the Court on appeal if necessary, that these conditions should not be imposed in the particular circumstances of a particular site – although in practice one should expect these conditions will be imposed):
(a) the activity must not be carried out using odorous feedstock; or
(b) if the activity is to be authorised to use odorous feedstock, whether conditions should be imposed to:
- require an enclosed system to receive, store and initially mix the odorous feedstock; and
- where the odorous feedstock will be composted, whether either or both system should be used for the composting (being the enclosed system and an in-vessel system).
“Enclosed system” is defined as:
“for carrying out organic material processing, means plant or equipment—
(a) comprising a system under which negative pressure is used in a building, or a section of a building; and
(b) that is designed, when used under paragraph (a), to minimise any adverse effect, or potential adverse effect, of the activity on odour.”
“In vessel system” is defined as:
“for carrying out organic material processing—
(a) means plant or equipment—
(i) comprising a system under which material is—
(A) covered or contained; and
(B) composted in a way that captures, filters or otherwise controls the release of gases; and
(ii) that is designed, when used under subparagraph (i), to minimise any adverse effect, or potential adverse effect, of the activity on odour; but
(b) does not include plant or equipment comprising a system under which the release of gases is controlled only by the use of semi-permeable membranes.”
There is an exception for applications that have already reached the decision making stage. However, these can be caught by proposed amendments as discussed below.
Existing Facilities with an Environmental Authority
The DESI can seek to amend an existing environmental authority if all of the following apply:
(a) the activity is carried out within 4km of the boundary of a residential zone (for a large site, it may be possible to locate the composting activities to that part of the site beyond the 4km distance); and
(b) the DESI believes the activity is, or may be, carried out, at any time, using odorous feedstock (accordingly, the conditions can be imposed even if a site is not currently using odorous feedstock, so that it cannot receive it in future or only subject to the new conditions); and
(c) the current environmental authority does not already have the new conditions.
A proposal by the DESI to amend an environmental authority is subject to rights of internal review to the DESI, and if necessary, appeal to the Planning and Environment Court.
Waste Transportation
The transportation of odorous feedstocks has new requirements and offences that apply to the transport of the material and checking (by the transporter) that the destination for the material has the necessary environmental authority to be able to receive it.
Conclusions
These new rules are not a surprise, as they have been foreshadowed by the model operating conditions.
However, it is recommended for operators to check the “4 kilometre” rule as it may apply to them, based on existing residential zones. If a facility is within this distance from an existing residential zone then you should expect to be approached by the DESI in the near future with a proposal to amend the EA. This proposal is subject to rights to resist the amendment, or modify the proposed amendment to be manageable (such as by specifying different operating methods and allowing some high or very high odour rated feedstocks to be accepted, under certain circumstances).
It is also recommended to keep an eye on development applications within the 4 kilometre distance, and this can be done in most cases by registering on the Council website to receive email updates about those applications. There may be rights to make a submission, and appeal against decisions about these applications. These are commonly called “reverse amenity” cases and there are many examples, such as the Rochedale landfill, other types of waste management facilities, poultry farms and even a current case involving the XXXX brewery.
As new planning schemes are released in draft form, they should be checked to see if amendments are proposed to the zoning maps, such as expanded areas of residential zoned land, or emerging community zoned land. Milne Legal provides advice and represents clients in relation to a range of environmental law matters. If you would like to get in touch, please contact our office on (07) 3210 0943 or email us at admin@milnelegal.com.au.
This publication is general in nature. Its content is current at the date of publication. It does not constitute legal advice and you should always seek legal advice based on your particular circumstances prior to making any decisions relating to matters covered by this publication. Certain details may have been sourced from external references, and we cannot assure the accuracy or timeliness of such information.