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Waste Management Update

Posted by James Neilson on 16 November 2017

COUNCIL WASTE MANAGEMENT POWERS... GOING, GOING, GONE

On 1 July, 2018, the following local government waste management powers are due to expire:-

  1. chapter 5A (Waste management by local governments) ("chapter 5A") of the Environmental Protection Regulation 2008 ("EPR"); and

  2. section 7 (Designation of areas) of the Waste Reduction and Recycling Regulation 2011 ("section 7").

Chapter 5A only applies to "serviced premises", that is, relevantly, premises in an area designated by Council under section 7 as an area in which Council may conduct general waste collection or require the owner or occupier of premises to arrange for the removal of general waste from the premises.  The application of chapter 5A and section 7 are inextricably intertwined. 

The EPR, section 81ZC, states that chapter 5A applies to a local government area unless:-

  1. the local government for the area makes a local law about waste management for the area; and

  2. the local law states it replaces chapter 5A.

It would be a nonsense to make a local law which purports to replace chapter 5A without including, in the local law, a provision which, for practical purposes, replaces section 7. It is King & Company's view that a Council may make a local law which replaces chapter 5A and include, within the local law, a provision which, for practical purposes, replaces section 7. 

Chapter 5A gives Councils the power to supply waste containers (for domestic, commercial and recyclable waste), charge for the supply of such containers, dictate where the containers are to be kept on premises and when the containers must be put out for collection.  If Councils cannot exercise these powers then:-

  1. waste management contracts entered into between Councils and their contracted waste management collection contractors may be compromised (depending on the terms and conditions of the contract); and

  2. waste management collection contractors (other than Council's contracted waste management collection contractor) will be free to cherry pick the more lucrative waste collection contracts, for example, the collection of voluminous waste generated at commercial premises. 

Post the 1 July 2018 legislative change, all Councils will retain their power to levy utility charges but, in the context of waste management, that power may be subject to question in circumstances where:-

  1. a Council no longer has the powers which are currently identified in each of chapter 5A and section 7; and

  2. the Council does not make a replacement local law.

Anecdotal evidence would indicate that the "usual" local law making process would take approximately 6 months.  Depending on the circumstances, Councils may be able to avail themselves of the interim local law making process. The local law making process obliges Council to identify possible anti-competitive provisions and consult with the public about the possible anti-competitive provisions.  Guidelines released by the Department dictate the process that must be followed by a Council in respect of the public consultation about possible anti-competitive provisions. 

No local law may be made by a Council absent a State interest check.    King & Company has extensive experience in preparing local laws on a broad range of topics which have been subjected to, and approved, under the State interest check process.

Regardless of whether Council makes a local law which replaces chapter 5A and section 7, the undertaking of general waste collection activities by a Council is a business activity and the competitive neutrality principles apply to the activity.  Council must ensure compliance with applicable legislative requirements in that regard so that, in the conduct of the business activity in competition with the private sector, Council does not enjoy a net advantage over competitors only because Council is a public sector entity.

After 1 July 2018, there is clearly scope for the owners and occupiers of multi-residential premises and commercial premises to exploit the fact that a Council that does not have an appropriate local law can no longer avail itself of the waste management options which are currently available to Councils, via chapter 5A of the EPR. 

The making of a local law which replaces chapter 5A and includes a provision which replaces section 7 is recommended because the provisions to be included in the local law are an integral part of Council's waste management services regime.  The existence of the local law complements Council's power to levy utility charges for waste management. 

For more information on this article or assistance in the preparation of a local law in time for the 1 July 2018 legislative change, contact James Neilson on (07) 3243 0000.

James NeilsonAuthor: James Neilson
About: James is a partner in the firm's Commercial & Advisory Group.
Tags: Local Government Council Liability kingandcompany Waste Management Planning & Environment

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