Key Takeaways

• The Victorian Supreme Court has held that overburden material from a Boral quarry adjacent to the Melbourne Regional Landfill that was used as daily cover at that landfill was a ‘waste’.
• The Court concluded that, as paragraph (a) the relevant definition of ‘waste’ included any matter deposited in the environment in such volume, consistency or manner as to cause an alteration in the environment and as the daily cover caused an alteration in the environment, it was a waste.
• The purposive approach recently adopted in other decisions of the Court was found not to apply to paragraph (a) the definition of ‘waste’.
• This decision considerably expands the definition of ‘waste’ such that materials could be argued to be wastes in unexpected circumstances.

Background

Landfill Operations Pty Ltd operates the Melbourne Regional Landfill at a site in Ravenhall, which is also known as Cleanaway Ravenhall. The Melbourne Regional Landfill accepts municipal and industrial waste and is operated pursuant to a licence issued by the Victorian Environment Protection Authority (EPA).

The relevant environmental legislation requires the holder of a licence for the use of premises as a landfill to pay a landfill levy for each tonne of ‘waste’ deposited onto land at the premises.

While Landfill Operations paid a landfill levy with respect to municipal and industrial waste deposited at the MRL in the 2017-2018 financial year, it did not pay a levy with respect to crushed rock that it had used as daily cover material.

This daily cover had been sourced from Boral Resources (Vic) Pty Ltd’s Deer Park Quarry, which was adjacent to the Melbourne Regional Landfill. The material supplied by Boral had been described as ‘non-descript crushed rock’, or NDCR.

The EPA issued Landfill Operations with an invoice for $6,936,892.05 for the landfill levy on the NDCR used as daily cover in the 2017-2018 financial year.

Was the NDCR ‘waste’?

Landfill Operations argued that the NDCR was not ‘waste’ and that, as a result, no landfill levy was payable in relation to that material.

Slight changes have since been made to the definition of ‘waste’ in the EP Act since the 2017-2018 financial year, but the EPA argued that the NDCR used as daily cover was waste as it met the following parts of the definition of ‘waste’ at the relevant time:

• Paragraph (a) of the definition – any matter, whether solid, liquid, gaseous or radio-active which is discharged, emitted or deposited in the environment in such volume, consistency or manner as to cause an alteration in the environment
• Paragraph (b) of the definition – any discarded, rejected, unwanted, surplus or abandoned matter.
• Paragraph (c) of the definition – any otherwise discarded, rejected, unwanted, surplus or abandoned matter intended for recycling, reprocessing, recovery or purification by a separate operation from that which produced the matter or for sale.

The Victorian and South Australian Supreme Courts have handed down a handful of cases in the last couple of years that have concluded that the concept of ‘waste’ is relative and purposive. Factors to be considered included whether there was a market for the substance and whether the substance had gone through processes sufficient to transform it into something other than waste. These decisions, however, considered the parts of the definitions of waste that focused on paragraphs (b) and (c) above and the question as to whether the relevant materials were discarded, rejected, unwanted, surplus or abandoned.

The Court in the Landfill Operations case, however, found that, when it came to a consideration as to whether a substance was a waste under paragraph (a) of the definition, the words in paragraph (a) do not engage considerations of purpose for the use of the material. All that is required is to determine:

• whether there is ‘matter’ (solid, liquid, gaseous, radioactive), which is a plainly objective question;
• whether that matter is ‘discharged, emitted or deposited in the environment’, which is also an objective question; and
• whether this is done in such volume consistency or manner as to cause an alteration in the environment.

The Court also found that:

• when considering whether a material has been deposited on land in such as way as to cause an alteration in the environment, it was not necessary for the alteration to be adverse – all that is required is that there be an alteration – not an alteration of any particular quality; and
• there is nothing in the language of paragraph (a) which engages consideration of where a matter might lie in the spectrum between a ‘waste’ and a ‘product’

As a result, the Court concluded that, as the NDCR:

• was a solid matter,
• that was deposited onto the land at the Melbourne Regional Landfill, and
• the deposition was in such volumes that it caused a significant alteration in the environment (even if the alteration was not necessarily adverse),

then the NDCR was ‘waste’ under paragraph (a) of the definition. The Court accordingly concluded that Landfill Operations was required to pay the landfill levy on the NDCR used as daily cover at the Melbourne Regional Landfill in the 2017-2018 financial year. The EPA has also undertaken audits for FY19 and FY22 which have indicated further alleged underpayments relating to similar products of $4.7 million and $7.2 million respectively that were not the subject of the Supreme Court proceedings.

Implications

The significance of this decision does not relate to the fact that a levy was charged on the daily cover material – daily cover material that is ‘waste’ is clearly subject to a levy in Victoria.

The decision does, however, represent a significant expansion of the definition of ‘waste’ under Victorian environmental law.

If there is no consideration of purpose in relation the use of material applied to land and no consideration as to whether any resulting alteration to the environment is beneficial or detrimental, is fertiliser that is applied to land a waste? What about (non-recycled) road base material used in construction of a road? Taking the matter to extremes – what about any construction materials deposited on land in any construction project? Is any matter deposited onto land in a way that causes an alteration to the environment (good or bad) now waste?

NSW, WA and the ACT all have definitions of waste that include a paragraph similar to paragraph (a) of the Victorian definition considered in the Landfill Operations case.

While there are sound policy grounds for there to be a broad definition of ‘waste’ to ensure that unintended ‘loop-holes’ are not used to avoid compliance with waste regulations, a definition of waste that is so broad that it can include almost anything creates uncertainty for industry and gives extensive discretion to regulators when determining how to apply those waste regulations.

In our view, legislative change is required.

Environment Protection Authority Victoria v Landfill Operations Pty Ltd [2026] VSC 262

Published on 3 June 2026.

Jennifer Hughes of Beatty Hughes & Associates is recognised as a leading advisor to the waste industry due to her in-depth understanding of the legal and practical issues unique to that sector. If you would like to discuss the above decision, or another matter pertaining to the application of environment or planning law to the waste industry in Australia, Please feel free to get in touch.