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New Zealand Journal of Environmental Law |
Last Updated: 31 January 2023
The Waste Minimisation Act 2008 and the Ability of Territorial Authorities
to Manage Solid Waste
Helgard Wagener*
This paper deals with the development of the Waste Minimisation Act 2008 and the ability of territorial authorities to provide for the management and minimisation of solid waste. It discusses briefly waste as a concept and the growing international awareness that it is more than a threat to human health and the environment but also indicative of poor use of limited resources. Common words, phrases and concepts used in waste management are explained, and the history of refuse collection and disposal in New Zealand is examined with an emphasis on the use of health- and local government-related legislation as methods of management. The introduction of “sustainability” to waste management by territorial authorities as provided by the Resource Management Act 1991, the Local Government Amendment Act ( No
4) 1996, and the New Zealand Waste Strategy is also discussed. The effect of the absence of mandatory standards and requirements in these regulatory mechanisms for waste management plans is considered, as are the adverse implications of the High Court and Court of Appeal
*Helgard Wagener obtained a BLC (1980) and a LLB (1982) at the University of Pretoria in South Africa. He was admitted as an attorney of the High Court of South Africa in 1984. After a period as a public prosecutor and state attorney he briefly entered private practice before returning to the South African Department of Trade and Industry as a legal advisor. In 1998, he was appointed as a senior manager responsible for economic regulation in the Western Cape provincial government in Cape Town, South Africa. During this time he also served as Deputy Chairperson of the Western Cape Liquor Board and was responsible for the drafting of the Western Cape Liquor Act.
He immigrated with his family to New Zealand in February 2006. From 2006 to 2007 he assisted several rural local authorities with the review of their bylaws. He is now part of the Auckland City Council’s planning group where he is responsible for bylaws. The paper was written for the postgraduate Resource Management Law course at the University of Auckland.
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decisions in the Carter Holt Harvey v North Shore City Council cases on the ability of territorial authorities to provide optimally for sustainable waste management. Statistics are provided on the newly introduced material recovery facility used by Auckland City and the extent of the waste management issue in New Zealand. The implication that the definitions of “waste” and “diverted material” have on the ambit of the Waste Minimisation Act 2008 shortly after enactment is considered. Although product stewardship and extended producer responsibility are looked at briefly, the discussion concentrates on the purpose and impact of the waste disposal levy and the responsibilities of the territorial authorities under the legislation. Whether the omission of “diverted materials” from the regulatory responsibility of the territorial authorities detracts from their ability to provide optimally for waste assessments and draft holistic waste management and minimisation plans is questioned. The conclusion drawn is that robust regulations are needed to provide sufficiently detailed information of diverted material to enable territorial authorities to meet the objectives of the Act and the New Zealand Waste Strategy. The view is also presented that regulations are needed to require implementation of the priorities within the waste hierarchy, and that in their absence territorial authorities will continue to place emphasis on recycling and disposal of residual waste in their waste management and minimisation plans.
1. INTRODUCTION
The growth of the consumer society throughout the 20th and in the early stages of the 21st centuries has increased the generation of waste to the extent that it has become a problem for local governments throughout the developed world.1 This paper deals with the evolving responsibility of local government in New Zealand in the management of solid waste, culminating in the Waste Minimisation Act 2008. Although local government has responsibility for other forms of waste such as wastewater, trade waste and hazardous waste, these are not included in the newly passed Waste Minimisation Act 2008 and are not discussed in this paper.
1 Christopher David Musser, The other side of paradise: consumer society and suburban waste management: Mt. Eden, New Zealand 1840–1989 (MA thesis, Geography, The University of Auckland, 2001) 122; Al Gore, Earth in the Balance (Rodale, 1992) 145.
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Consumption forms the basis for the growth of the modern economy.According to Ann Maddox:2
Consumption is promoted by designing products with a short life span achievable by planned obsolescence, by appealing to fashion consciousness and by creating a dependency on fast, convenient, throw-away goods. Frequently items are discarded after a single use and the packaging costs more than the product itself. The result of consumption is the generation of ever increasing amounts of waste and the precipitous and unnecessary use of natural resources.
New Zealand often adopts similar approaches to industrial Europe and North America to the problems of dealing with waste. As the history of legislation on waste management in New Zealand shows, the focus has been on public health as the reason for waste management, which as a guiding principle adopted an approach of separating the generator of waste (e.g. the household) from the disposal of waste without consideration of development of waste reduction strategies.3 An approach was taken that if an item had no further useful function it could be “thrown away”. McDonough and Braungart state that “away does not really exist”.4
A report published in 1987 by the United Nations World Commission on Environment and Development entitled Our Common Future (also known as the “Brundtland Report”) has been instrumental in the growing recognition of the threat posed by pollution to human health and the environment.5 The report states in paragraph 11:6
Industry and its products have an impact on the natural resource base of civilization through the entire cycle of raw materials exploration and extraction, transformation into products, energy consumption, waste generation, and the use and disposal of products by consumers. These impacts may be positive, enhancing the quality of a resource or extending its uses. Or they may be negative, as a result of process and product pollution and of depletion or degradation of resources.
<http://www.un-documents.net/ocf-08.htm> (accessed 19 September 2008); Al Gore, Earth in the Balance (Rodale, 1992) 159–161.
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In general, industries and industrial operations should be encouraged that are more efficient in terms of resource use, that generate less pollution and waste, that are based on the use of renewable rather than non renewable resources, and that minimize irreversible adverse impacts on human health and the environment.
Growing awareness of the increased depletion of finite resources and the negative implications associated with economic growth due to the exponential growth in the earth’s population have also resulted in an awareness of the amount of resources lost through inefficiency — such as poor design, use and disposal of products.7 In 1992 this gave rise to the concept of “eco-efficiency”, developed for the World Business Council for Sustainable Development in its report Changing Course by Stephan Schmiedheiney, as a response to developments at the United Nations Conference on Environment and Development (“Rio Earth Summit”).8 According to the World Business Council for Sustainable Development, eco-efficiency encompasses three broad concepts:9
Industry throughout the world and in New Zealand has generally accepted the concept of eco-efficiency, which has brought a new dimension to how many
Waste Minimisation Act 2008 299
corporations work.10 The briefing to the incoming Minister for the Environment in 2002 states:11
If businesses and households learn to use resources more efficiently and to produce less (or no) waste, we will reduce the pressures on the environment and save money too. Internationally, and now in New Zealand, business is recognising that ‘eco-efficiency’ matters.
The concept of eco-efficiency is not free from criticism. McDonough and Braungart point out that “reduction is a central tenet of eco-efficiency. But reduction in any of these areas does not stop depletion and destruction but only slows them down, allowing them to take place in smaller increments over a longer period of time”.12 They note that “most recycling is actually downcycling, it reduces the quality of a material over time”13 and propose that a radical change be made in the approach taken to the design of production processes and products.
With the publication of the New Zealand Waste Strategy, a vision was adopted for “zero waste and a sustainable New Zealand”.14 This strategy forms the backbone of New Zealand’s approach to sustainable waste management and is the background against which the Waste Minimisation Act 2008 has been passed.
2. COMMONLY USED WORDS, PHRASES AND CONCEPTS
The definition of waste as defined in related legislation and the implications thereof on territorial authorities’ ability to manage solid waste are discussed in detail later in this paper. As a wide variety of phrases are used to differentiate amongst types of waste, it is useful here to provide a glossary of common phrases, words and concepts used by authorities on waste management.
Waste is described in the New Zealand Waste Strategy as “any material, solid, liquid or gas that is unwanted and/or unvalued and discarded or discharged
<http://www.nzbcsd.org.nz/mission.asp> (accessed 23 September 2008); McDonough & Braungart, Cradle to Cradle, supra note 4, at 53.
14 Mf E, The New Zealand Waste Strategy: Towards zero waste and a sustainable New Zealand (March 2002), at <www.mfe.govt.nz/publications/waste/waste-strategy-mar02> (accessed 17 September 2008).
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by its owner”.15 What constitutes waste is a contentious issue and has been considered by the High Court and the Court of Appeal.16Solid wastes are those wastes generated as solids or converted to solid form for disposal.17 Solid wastes include household waste such as kitchen and garden waste, discarded appliances, paper, metal, plastic and glass. This type of waste is often described in earlier legislation and documents as refuse or less often as rubbish.18 Solid wastes also include industrial and commercial waste such as construction and demolition wastes and agricultural and mining waste.19 Green waste is garden waste and is a solid waste.20 Organic waste is a wider category that refers to green waste, kitchen waste, food process waste and sewage sludge and is not necessarily solid waste and may include liquid wastes.21 Although the New Zealand Waste Strategy and the New Zealand Waste Data Report use the phrase organic waste, the waste management industry often uses the phrase putrescible waste. Putrescible waste describes “those components of the waste stream likely to become putrid”. Putrescible waste is used for a specific part of organic waste. It describes those components that are rapidly degraded by micro-organisms under aerobic (composting) or anaerobic (fermentation, biogas) conditions. Putrescible waste can be a solid or liquid or a combination of both. The term putrescible waste is mainly found in regulatory documents in Australia and the United States of America and is frequently used in New Zealand to describe waste materials that decay easily.22
Liquid wastes are wastes either generated as liquids or disposed of as suspended solids into a liquid waste stream.23 Wastewater (such as sewage) is collected in local authorities’ public sewerage systems directly from sources24 —
ss 27A, 36 & 37.
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for example, from public toilets or from residences or commercial or industrial premises — and treated and discharged. Wastewater may be collected in septic tanks — for example, on Waiheke Island in the Hauraki Gulf 25 — or treated on-site. Trade waste is a liquid waste, with or without matter in suspension or solution, discharged from trade premises to a territorial authority’s sewerage system during a trade or industrial process and may include condensing or cooling waters.26 Trade waste and wastewater are subject to the control of local authorities through the Local Government Act 2002 (“LGA 2002”) and the New Zealand Waste Strategy.27Gaseous wastes are either gases or small particles suspended in the air originating from vehicle and machinery emissions, industrial or agricultural processes, open fires or incinerators.28
Certain wastes may be classified as hazardous or potentially hazardous, such as medical wastes or certain industrial waste that requires controlled disposal.29 Hazardous wastes contain explosives, are flammable, able to cause oxidisation or corrosion, and are toxic or ecotoxic.30 Hazardous waste is dealt with specifically by the Hazardous Substances and New Organisms Act 1996. Special wastes cause particular management and disposal problems and need special care — for example, oil, tyres, batteries, end-of life vehicles and electronic goods.31 Special wastes may be hazardous or potentially hazardous. Hazardous wastes and special wastes may be solid, liquid or gaseous.
Waste hierarchy refers to giving priority to methods for reduction, reuse, recycling, recovery and disposal of waste, in that order of importance.32
of territorial authorities regulate wastewater by adopting the standard model bylaw that is available. See Standards New Zealand, New Zealand Standard Model General Bylaw NZS 9201: Part 22: 1999 Wastewater drainage, at <http://www.standards.govt.nz/web-shop/?acti on=viewSearchProduct & mod=catalog & pid=9201.22:1999(NZS)> (accessed 17 September 2008).
32 Controller and Auditor-General, Waste management planning by territorial authorities
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The Waste Management Policy 1992 provided for the implementation of a similar “5R” hierarchy of reduction, reuse, recycling, recovery and residual management of waste materials.33 Reduction means lessening the generation of waste; reuse means the further use of products in the original form for the same or similar purpose; recycling refers to the reprocessing of waste materials to make new products; recovery means the extraction of material or energy from waste for further use or processing; and disposal means the final deposit of waste on land set apart for that purpose.34Finally, a landfill is an area for the controlled disposal of solid waste; and cleanfills are waste disposal sites accepting only inert wastes such as clay, soil, rock, concrete and bricks.35
3. THE HISTORY OF WASTE MANAGEMENT IN NEW ZEALAND
As the history and development of legislation and practices show, the management of waste in New Zealand by local authorities and industries has been a short step behind international developments. The early years of colonial settlement (1840 to 1873) were such that solid waste was not perceived to be a problem. Resources were of an organic nature (food) or of a durable nature (such as clothing, equipment and furniture). Solid waste was used as feed for animals, composted, incinerated or stockpiled on the premises and reused when possible.36 The technological, financial and geographical restrictions faced by early settlers required effective and efficient use of available material. A “waste not, want not” approach prevailed. Ingenuity and adaptability were required to extend the lifespan of each commodity. The limitations of the available transport ensured that solid waste was generally kept on the premises. Due to the extended scale and low density of early settlement, solid waste removal was not required. This led to responsible, efficient consumption and disposal practices.37 What would today be perceived as threats to the environment would have been seen as threats to human health and were generally avoided.
The growth of an urban community and the residential densification from
(April 2007), at <www.oag.govt.nz/2007/waste-management/docs/oag-waste-management. pdf > (accessed 17 September 2008).
<http://www.mfe.govt.nz/publications/waste/waste-management-nz-oct05/html/page2. html> (accessed 23 September 2008).
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1873 onwards resulted in growing concerns about the implications of waste on human health.38 The legislative scheme adopted by the early settlers at this time continued well into the late 20th century. The Health Act 1876 established local boards of health for every city, borough or town.39 While city councils, borough councils, county councils and town boards were established40 and were empowered to make bylaws on a number of waste issues such as the discharge of pollutants into watercourses or the control of noxious or offensive trades,41 the control of solid waste and sewage was left to local boards of health. There was some duplication of functions of local health boards under the Health Acts and local authorities under local government legislation.42 The local authorities generally fulfilled the functions of local boards of health.43The Health Act 1876 required that no house was to be constructed unless it was provided with a “sufficient water-closet, earth-closet or privy and an ashpit”.44 Ashpits included any receptacle for ashes, dust or rubbish fitted with doors or covering as the local board might require. Ashpits were to be kept so as not to be “a nuisance or injurious to health”,45 meaning human health. The Act provided for intervention by the local board of health where ashpits (or water closets, earth closets or privies) were not provided or did not meet the board’s requirements.46 The Act compelled occupiers of any premises to prevent the creation of nuisance or injury to human health and included an offence relating to the proper maintenance of ashpits.47
Provision was made for the removal of refuse from premises 48 and for the sale of items that had been removed. The local health board could make bylaws to meet the purpose of the Act. Where a health board had jurisdiction in a city or borough it could provide public refuse receptacles and locations for the deposit of collected items.49
The removal of solid waste from the generators thereof and the off-site disposal and the use of bylaws are indicative of the prevalent view of solid waste management as a health issue that continued up to the passing of the Local
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Government Amendment Act (No 4) 1996.50 The approach adopted was “out of sight, out of mind”. Successive Health Acts empowered the local authorities to prevent anything that was “a nuisance or injurious to health” by bylaw and allowed the local health board or the national board of health to intervene when local authorities failed to fulfil their obligations under the legislation. Similar provisions remain operative in the current Health Act 1956.51
There was some debate as to what the phrase “a nuisance or injurious to health” in the legislation meant. In Great Western Railway Co v Bishop 52 the phrase was held to mean:
The Court, however, declined to give the full common-law meaning to the word ‘nuisance’ when used in the context ‘in such a state as to be a nuisance or injurious to health’. Holding that the Act was one for the benefit of public health generally, Sir Frederick Cockburn CJ restricted the meaning of the word ‘nuisance’ in this context to nuisances affecting public health.
In Bishop Auckland Local Board v Bishop Auckland Iron Co 53 the Court held
that anything which could diminish the comfort of those in the neighbourhood, though not actually injurious to health, would be covered by the statute, and consequently that an accumulation of cinders and ashes which continually smouldered and threw off strong fumes and effluvia was an offence against its provisions.
This decision was approved and followed in the Auckland Supreme Court in 1960 in the case of Murray v Laus 54 when Turner J had to consider the phrase “offensive or injurious to health” in s 29 of the Health Act 1956. He stated:
Similarly, I decide, in the present case, that though ways of carrying on a business which offend the senses in ways clearly irrelevant to health may be outside s 29(1), yet those which unnecessarily offend the senses so as materially to diminish the comfort of persons in the neighbourhood who are subjected to them, are covered by s 29(1).
50 The Health Acts of 1920 & 1956; the Municipal Corporations Acts of 1908, 1933 & 1954;
and the Counties Acts of 1886, 1908, 1920 & 1956.
51 Health Act 1956, ss 25, 29, 64, 123 & 123A.
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With the increase in density of inhabitants and urbanisation, the acquisition of commodities changed; more goods were obtained from shops that had previously been either grown or manufactured on-site or had been unobtainable. Consequently packaging material was used and had to be disposed of. Initially occupiers disposed of the solid waste themselves at their own expense, which led to illicit dumping on vacant land. The local authorities were not concerned where disposal took place as long as it did not create a nuisance or was injurious to public health.55 Eventually local authorities took over the responsibility of removing solid waste.56 The costs of the growing burden of collection and disposal of solid waste was funded from 1887 in Auckland by the introduction of a rate collection that eventually became standardised, ratepayer-funded schemes. The councils in the Auckland region allowed waste to be tipped in disused quarries, such as the remainder of the volcanic cone of Mt Eden and on reclaimed land in Freemans Bay and later in Grey Lynn.57 By 1898 a refuse dump and a sewerage disposal area were located within 600 yards on either side of the collecting ponds of Western Springs, the main water supply to Auckland. This affected the water quality.58By 1906 the Auckland City Council had awarded a contract for the construction of a destructor located at the present-day Victoria Park Market that received the solid waste from a twice-weekly refuse collection and incinerated 60 tons of waste per day. The destructor was also used to generate electricity for the lighting of streets in its vicinity, although by 1908 demand outstripped capacity and the solid waste had to be augmented with coal.59 By 1910 approximately 10,000 tons of solid waste was being incinerated but the growth in the amount of solid waste soon exceeded capacity, and other methods, such as dumping at sea, were used.60 By the 1950s the destructor was only coping with 10 per cent of the waste generated within Auckland City.61
Finding suitable sinks for the disposal of solid waste created environ- mental and social problems.62 Local authorities in New Zealand followed the international idea of the time that quarry reclamation through filling by solid waste was beneficial to the built environment. Available depressions such as quarries and gullies filled rapidly. Uncontrollable fires occurred in some tips because of the proximity of methane and combustible materials. Landfill sites
(Auckland & London: Collins, 1971) 124.
62 Ibid, at 110–117.
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were located with little effective planning, in inappropriate locations, and at as little cost as possible. Generally, the nearest available isolated location within the local authority’s jurisdiction was used. This caused problems in the expanding urban areas where local authorities provided disposal facilities without consideration of developments in neighbouring councils. There were instances of co-operation between local authorities to share disposal facilities. Where local authorities had access to waterfronts or wetlands, the disposal of solid waste was seen as a method of land reclamation. These methods have required extensive rehabilitation and remediation work later on, such as that undertaken at Waiatarua wetlands in Glendowie, Auckland.By the end of the Second World War, methods for the disposal of solid waste other than by incineration or the use of tips and dumps were being considered in Auckland. Controlled tipping was still taking place but could not cope with the demand — over 26,000 tons of waste was collected from residences, businesses and industry in 1949.63 A method that found favour in Auckland was the construction of a composting plant to process organic waste. This commenced commercial operation in September 1963 from a quarry reserve in Mt Wellington, selling polythene bags of ACCPOST. On-site composting remained a method of disposal of kitchen and green waste, but as apartments and flats developed in central-city areas from 1968 onwards kitchen waste was consigned with other solid waste to disposal facilities such as tips, quarries and landfills.64
Local methods were introduced to ameliorate the effects of the available disposal facilities. Conditions were imposed in 1972 by the Auckland Harbour Board when it granted approval for permission for the establishment by the Auckland Regional Authority of a disposal site at the Pikes Point area. This introduced a higher level of centralised management at regional level and required more complex engineering solutions to the problem of solid waste disposal in Auckland.
4. SUSTAINABILITY AND WASTE MANAGEMENT: THE RESOURCE MANAGEMENT ACT 1991,
THE LOCAL GOVERNMENT AMENDMENT ACT (NO 4) 1996 AND THE NEW ZEALAND WASTE STRATEGY
The growing awareness worldwide and in New Zealand during the late 1980s of the adverse impact of the expanding consumer society resulted in a review of legislative measures. The Resource Management Act 1991 (“RMA”) provided
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a statutory precursor to the amendment of the Local Government Act 1974 (“LGA 1974”) by the Local Government Amendment Act (No 4) 1996. With the passing of the RMA recognition was given to the concept of sustainability, albeit in the watered-down phrase “sustainable management”.65 The RMA does not require national or local authorities to provide or adhere to any system of waste management. Although reference is made to the control of dumping or incineration of waste,66 these provisions do not contain specific objectives or principles.67 The purpose of the Act is to “promote the sustainable management of natural and physical resources” through68
the use, development, and protection of natural and physical resources to enable people and communities to provide for their social, economic, and cultural wellbeing and for their health and safety while sustaining the potential of natural and physical resources to meet the reasonably foreseeable needs of future generations, safeguarding the life-supporting capacity of air, water, soil, and ecosystems and avoiding, remedying, or mitigating any adverse effects of activities on the environment.
Section 6 of the Act contains matters of national importance while s 7 deals with other matters. Although solid waste management is not explicitly mentioned in these sections, they contain considerations that have direct relation with decisions regarding solid waste management — for example, s 5(2)(c) provides for “avoiding, remedying, or mitigating any adverse effects of activities on the environment”.69
The RMA provides for a hierarchy of objectives, principles and rules which function at national, regional and territorial government levels.70 At national level the RMA provides for the development of national policy statements, national environmental standards and regulations. Presently there are no policy statements, environmental standards or regulations relating to solid waste management.71 The Resource Management (National Environmental Standards Relating to Certain Air Pollutants, Dioxins, and Other Toxics) Regulations 2004 provide some regulation of landfill activities — for instance, prohibiting fires
66 Resource Management Act 1991, ss 2, 15A, 15C, 30, 68, 107, 338, 341A, 360, 418 & 419.
67 Maddox, Sustainability and solid waste management, supra note 2, at 62. 68 RMA, s 5.
69 RMA, s 5(2)(c).
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in landfills, control over the release of gas, and the destruction of gas through flaring.72The principal responsibility for providing for solid waste management under the RMA lies with local government. This is done through regional policy statements and regional and district plans, which lack consistency, are not required to include solid waste disposal issues, and may be set aside or amended by the Environment Court. The Act also provides for the regulation of discharges into the environment through a process of resource consents administered by local authorities. Where any person intends operating a landfill, a resource consent meeting the requirements of the local authority must be obtained and the standards and conditions imposed by this authority through regional and district plans adhered to.73 The shortcoming of the consent process lies in that it does not provide a comprehensive waste management regime including the “5R” considerations but only deals with the environmental effects of solid waste disposal — so-called “end of pipe” considerations.74
In conjunction with the RMA, the LGA 1974 was the primary method of dealing with solid waste management before adoption of the Waste Mini- misation Act 2008 on 25 September 2008.75 Other legislation, such as the Litter Act 1979 and the Hazardous Substances and New Organisms Act 1996, were passed to deal with specific types of solid waste — for example, litter or hazardous waste. The Health Act 1956 continues to address the effects of solid waste where this creates a “nuisance or any conditions likely to be injurious to health or offensive”.76
Initially, Part 31 of the LGA 1974 continued with the approach of earlier legislation dealing with solid waste as a health hazard — that of requiring it to be removed from its generators and disposed of off-site.77 Prior to the amendments of Part 31 by the Local Government Amendment Act (No 4) 1996, s 537 only provided for definitions of disposal, refuse and refuse disposal works. Although mention was made of recycling of waste, it was only regarded as part of the disposal of solid waste and not as part of an efficient strategy to recover resources.78 At this stage of legislative development, the “5R” concept had not been developed and no waste hierarchy was included. The functions of territorial authorities regarding solid waste management were similar to those of preceding legislation. The original version of s 538 provided:
72 Resource Management (National Environmental Standards Relating to Certain Air Pollutants, Dioxins, and Other Toxics) Regulations 2004, R 6, 25, 26 & 27.
73 RMA, ss 9(4)(d) & 15.
74 Maddox, Sustainability and solid waste management, supra note 2, at 63–64. 75 Ibid, at 62.
76 Health Act 1956, ss 23, 29(n) & 63.
77 Health Act 1956, s 36; Municipal Corporations Act 1954, s 102; Counties Act 1956, s 115. 78 The definition of “disposal” in s 537 of the LGA 1974.
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538 Territorial authority refuse collection and disposal
(1) The territorial authority may undertake or contract for the efficient performance of the following services within the district or any part thereof:
(a) The removal and collection of refuse or any specified kind of refuse from premises;(b) The sweeping, cleaning, and watering of roads, including footpaths, and the removal and collection therefrom of refuse;
(c) The disposal of refuse so as not to be a nuisance or injurious to health;
(d) The provision of facilities for the temporary deposit and collection of refuse or any specified kind of refuse;
(e) The collection, removal, and disposal of nightsoil, and the cleansing of sanitary conveniences.
It was only with the drafting of the Local Government Amendment Act (No
4) 1996 that legislative recognition was given to overconsumption as a part of management of solid waste. With the passing of the Local Government Amendment Act (No 4) 1996, Part 31, consisting of ss 537 to 548, was inserted, reflecting a new approach to waste management incorporating international developments. The “5R” concept and the waste hierarchy were introduced in the definition of disposal.79 Comparison of the new s 538 with the original version indicates the new approach:
538 Duty of territorial authority to encourage efficient waste management Every territorial authority shall promote effective and efficient waste management within its district and, in so doing, shall:
(a) Have regard to environmental and economic costs and benefits for the district; and(b) Ensure that the management of waste does not cause a nuisance or be injurious to health.
An important requirement introduced by Part 31 was that territorial authorities adopt waste management plans.80 When introduced it did not specify when the waste management plans were required. The LGA 2002 provided that each authority had to adopt a waste management plan by 30 June 2005.81 The waste management plans “had to make provision for the collection and reduction, reuse, recycling, recovery, treatment, or disposal of waste” and “provide
79 Maddox, Sustainability and solid waste management, supra note 2, at 66. 80 LGA 1974, s 539.
81 Controller and Auditor-General, Waste management planning by territorial authorities, supra note 32.
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for its effective and efficient implementation, or for activities considered appropriate for that purpose to be undertaken by, or under contract to, the territorial authority”.82 Territorial authorities were to consider the costs, benefits and operational requirements of waste management methods when drafting waste management plans.83 They could allocate costs for implementation of their waste management plans in ways that established economic incentives and disincentives promoting the objectives of their plans.84 If their waste minimisation plans provided for it, grants could be made by local authorities to promote or assist with the reduction, reuse, recycling, recovery, treatment or disposal of waste.85 Local authorities were able to enter into contract agreements for these services and could act collaboratively with other territorial authorities in the region. While territorial authorities in the Auckland region had individual contracts and services for waste management, a trend was created to combine efforts across boundaries. That is expected to continue under similar provisions in the Waste Minimisation Act 2008. Solid waste reduction, in particular, provided for co-operation, and a number of programmes in the Auckland region currently involve more than one council.86The territorial authorities were empowered to provide for the collection and reduction, reuse, recycling, recovery, treatment, or disposal of any waste, the provision of waste disposal facilities and the promotion of waste minimisation education programmes in accordance with their waste minimisation plans.87 Subject to consents issued pursuant to the RMA and their waste minimisation plans, local authorities were allowed to establish, own and operate their own facilities for the reduction, reuse, recycling, recovery, treatment, or disposal of waste.88 These facilities may have been established with other local authorities and may be outside the district — for example, the Omarunui landfill jointly owned and operated by the Hastings District and Napier City Councils.89 In 1991 the landfills in the Auckland region controlled by local authorities were placed under the control of the Local Authority Trading Enterprise (“LATE”), Northern Disposal System. This was the first step in the privatisation of landfills.
82 LGA 1974, s 539.
83 Controller and Auditor-General, Waste management planning by territorial authorities, supra note 32.
84 LGA 1974, s 544(2).
85 LGA 1974, s 543.
86 Auckland City Council, Waste Management Plan, Draft Central Area Section, at <http:// www.aucklandcity.govt.nz/council/documents/waste/draftpone7.asp> (accessed 9 October 2008).
87 LGA 1974, s 540.
88 LGA 1974, s 541.
89 Ibid; Controller and Auditor-General, Waste management planning by territorial authorities, supra note 32; Hastings District Council, Omarunui Landfill, at <http://www. hastingsdc.govt.nz/rubbish/Omarunui/> (accessed 13 October 2008).
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With the exception of the small landfill at Claris, Great Barrier Island that is owned and managed by Auckland City Council, all landfills in the region are now profit-driven private enterprises. It is ironic that any initiatives to decrease the waste stream by providing financial disincentives, as are envisaged in the Waste Minimisation Act 2008, are detrimental to their business objectives.90The LGA 2002 did not repeal Part 31 of the LGA 1974 and the retained part continued to regulate waste management until it was repealed by the Waste Minimisation Act 2008. Section 146 of the LGA 2002 provides that the territorial authorities may pass bylaws regulating solid waste management. This power is in addition to the more elaborate bylaw-making powers provided by s 542 of the LGA 1974. Section 542 of the LGA 1974 allowed territorial authorities to make bylaws regulating the deposit, collection and transportation of solid waste in their districts. Public access to waste management facilities provided, owned, or operated by the territorial authorities could be controlled by bylaws which could prohibit the removal of solid waste intended for recycling.
An important regulating mechanism that has given rise to contention was the ability of local authorities to regulate the collection and transportation of waste for commercial purposes by licensing of operators.91 Provision was made that licence conditions could include works performance bonds or other security and that licence holders could be required to provide reports on the quantities and types of waste collected and transported as well as the sources and destinations of the waste so collected and transported. Similar bylaw powers have been retained in the Waste Minimisation Act 2008.92
As a result of the need for national leadership on the issue of waste man- agement, after consultation with Local Government New Zealand, the Ministry for the Environment in March 2002 adopted The New Zealand Waste Strategy: Towards zero waste and a sustainable New Zealand 93 (“the New Zealand Waste Strategy”). This strategy, until the adoption of the Waste Minimisation Act 2008, was the only guidance provided to territorial authorities on waste management by the national government. Although it was referred to by a number of the territorial authorities in their waste management plans, its status was not clear.94 With the adoption of the Waste Minimisation Act 2008, territorial authorities are compelled to have regard to the New Zealand Waste Strategy or
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its replacement.95 It is expected that the strategy will be reviewed to align with the newly passed legislation, particularly that the set targets be reviewed.The New Zealand Waste Strategy recognised that “reducing waste and managing it better is vital to New Zealand’s long-term environmental, social and economic wellbeing. It is the cornerstone of the government’s commitment to sustainable development.”96 The strategy covers all types of waste, not just solid waste, but does not deal with the environmental impact of waste. The strategy espouses a society that values its environment and resources and also uses these resources efficiently and at a sustainable rate. Waste is no longer to be seen as inevitable or as someone else’s problem. The challenge is to break the link between economic development and waste generation. Three goals are identified: the costs of and the risk of waste to society must be lowered; the damage from the generation and disposal of waste to the environment must be reduced; and the economic benefit of using resources more efficiently is to be increased. The strategy further identifies six core principles intended to guide implementation thereof by the various levels of government:
Waste Minimisation Act 2008 313
conservation and pollution prevention throughout a product’s life cycle, including disposal”. Stewardship puts the duty of care on the government, businesses and consumers to prevent waste and ensure optimum use of resources. This concept is also included in the Waste Minimisation Act 2008 as “product stewardship”.99
The New Zealand Waste Strategy recognises that sustainable waste management will not be achieved unless short-, medium- and long-term targets and objectives are set. The strategy sets out criteria to determine priorities to achieve these. These criteria consist of the assessment of the relationship between the risk of harm and the volume of selected wastes, the effectiveness and achievability of policies and actions, and addressing public concerns. National targets for three priority waste areas are set in the strategy.
The setting of general waste minimisation targets for local authorities, rather than targets for specific waste streams, is the first target. From 2001–2002 local authorities had to report on their progress on waste minimisation and
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management in their annual reports. From 2005 onwards regional councils had to require inclusion of recognised waste minimisation and management plans in new and renewed industrial resource consents. By December 2010 at least 25 per cent of industrial resource consent holders are to have recognised waste minimisation and management plans. By December 2005 local authorities had to ensure that 95 per cent of the population have access to community recycling facilities, building regulations had to require multi-unit residential and commercial buildings to provide appropriate recycling facilities, and waste minimisation procedures and targets had to be set for all facilities and assets under the management of the local authorities.The strategy also set targets for specific wastes, such as for organic wastes, special wastes, construction and demolition wastes, hazardous wastes, trade wastes, organochlorines and for contaminated sites. Of interest are those relating to solid waste such as organic waste where a target was set of diversion of 60 per cent of garden waste from landfill to beneficial use by December 2005, increasing to 95 per cent by December 2010. Local authorities were to identify a baseline of construction and demolition waste being sent to landfill during 2005. This had to be reduced by 50 per cent by December 2008. For special waste such as used oil, tyres, end-of-life vehicles, batteries and electronic goods a single target was set. By December 2005 businesses in at least eight sectors must have introduced extended producer responsibility pilot programmes for collection, reuse, recycling or appropriate disposal of special wastes.
The third target set by the New Zealand Waste Strategy was for waste disposal. Initially, local authorities had to ensure that in terms of their funding policy full cost recovery could be achieved for all waste treatment and disposal processes. By December 2005 user charges for the use of landfills, cleanfills and waste treatment plants reflecting the full costs of providing and operating these facilities were to be assessed and plans for the phasing in thereof over a timeframe acceptable to the local community established. Substandard landfills will have to be upgraded or closed by December 2010.
When the implementation of the New Zealand Waste Strategy was reviewed by the Controller and Auditor-General in April 2007102 it was found that about 65 per cent of the waste management plans of local authorities made some reference to the New Zealand Waste Strategy while about 35 per cent did not, mostly because these plans had been prepared before the strategy had been published. Forty-four per cent of the local authorities’ waste minimisation
102 Controller and Auditor-General, Waste management planning by territorial authorities, supra note 32.
Waste Minimisation Act 2008 315
plans referred generally to the New Zealand Waste Strategy and in some cases adopted the principles but did not provide linkages between specific targets and actions. Twenty-one per cent referred to the strategy and identified whether they were taking action to meet the targets and what form their actions were taking. When the waste management plans of local authorities were assessed against the targets for waste collection, the findings were that 86 per cent of all plans included provision for waste collection while the remainder did either not include any waste collection activities at all or provided for recyclable material but not for disposed waste (referred to as residual waste). The waste hierarchy is mentioned in waste management plans but recycling is favoured above other waste management methods notwithstanding that it is ranked lower than reduction and reuse in the hierarchy. Although approximately 66 per cent of the plans included numerical targets for the quantities of waste that are to be managed, only 27 per cent of the plans contained targets for organic waste and only 16 per cent of the plans contained targets for construction and demolition waste.103It is clear from the review of the Controller and Auditor-General that a number of waste management plans did not contain sufficient information on the collection and management of waste, were outdated, or did not meet the requirements of the New Zealand Waste Strategy.104 The review does provide assistance to local authorities by making recommendations on the contents of the waste management plans. While the review pre-dates the Waste Minimisation Act 2008 the recommendations remain relevant — particularly as the Act introduces a requirement that waste management and minimisation plans are to have regard to the New Zealand Waste Strategy.105
The latest OECD Environmental Performance Review of New Zealand recommends the expansion and upgrading of waste treatment and disposal, promoting co-operation among territorial authorities where this leads to economies of scale, and applying the polluter pays principle. It also proposes that regulatory support be increased for recovery or recycling (including deposit-refund systems) of priority waste — such as end-of-life vehicles and electronic goods — building on the extended producer responsibility principle.106 This review precedes the Waste Minimisation Act 2008 and many of its recommendations have been incorporated in the Act.
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Territorial authorities were empowered by the LGA 1974 to make bylaws to regulate “the collection and transportation of waste or waste of any specified kind”.107 These bylaws could provide for108
the licensing of persons who carry out commercially the collection and transportation of waste or waste of any specified kind, and the conditions specified in any such bylaws as conditions of the licences may include conditions requiring each licensee—
(a) To provide a suitable works performance bond or security for the performance of the work licensed or both:(b) To provide to the territorial authority, at times or periods specified in the bylaws, reports setting out—
(i) In accordance with criteria specified in the bylaws, the quantities and types of waste collected and transported under the licence:(ii) Both the source and the destination of the waste collected and transported under the licence.
Where the territorial local authority’s waste management plan provides for it, the costs of implementing the plan may be allocated so that economic incentives and disincentives promoting any or all of the objectives of the plan are promoted.109 Additionally, s 146(2) of the LGA 2002 confirms the ability of the territorial authorities to make bylaws to manage waste and prescribes the special consultative procedure created by this Act for this purpose.110
During 2004–2005 the Waitakere City Council, North Shore City Council and Rodney District Council (known as the “North Sector Group of councils” or the “Auckland North-West Alliance”) signed a memorandum of understanding to pursue a co-operative approach to waste policy work, specifically in relation to waste management plans, waste bylaws and regulatory functions. These territorial authorities were already implementing user charges for kerbside collection services. They were aware that since 1988 Christchurch City Council had collected a waste minimisation fee on waste disposed at its own facilities and that from 2005 it had a waste facilities bylaw allowing it to require private waste facilities to collect a waste levy on the council’s behalf. They agreed to a common bylaw using the Waitakere City Council waste bylaw as a model.
107 LGA 1974, s 542(1)(b).
108 LGA 1974, s 542(2).
109 LGA 1974, s 544(2).
110 LGA 2002, s 156.
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This included a system to license waste collection and transport contractors and provided for a waste disposal levy.111 Each of the North Sector Group of councils passed similar bylaws and adopted licensing systems and waste disposal levies in accordance with their stated intentions. This was intended to introduce systematic and reliable processes to obtain information that had not previously been available to them, set and monitor targets, change the behaviour of waste producers, and encourage waste minimisation.112 The measures taken by these territorial authorities were not in isolation but part of an ongoing discussion of using a waste levy for waste minimisation between Local Government New Zealand, officials of the Ministry for the Environment, and the various Ministers for the Environment from 2000 onwards.113 Different views emerged as to whether a regional levy or national levy was more appropriate.In 2005 Carter Holt Harvey and Waste Management (the plaintiffs) instituted action in the High Court against the North Shore City Council, Waitakere City Council, Rodney District Council and Christchurch City Council (the defendants).114 The plaintiffs sought to quash the defendants’ bylaws requiring payment of a waste levy from waste collectors. One of the plaintiffs also sought a declaratory order on the meaning of “waste” and the validity of the licensing regime. The basis of the case was that the bylaws were ultra vires and invalid and that the compulsory waste levy based on the amount of waste the licensee collected amounted to an unauthorised tax. The levy was not related to any services that the defendants were providing to the plaintiffs but was part of the waste minimisation strategies of the defendant councils. Tax may only be imposed by territorial authorities where there is a clear legislative authority or by necessary inference. The defendants contended that if the waste levy constituted a tax, it was authorised by the legislation.
Asher J held that although s 544(2) of the LGA 1974 allowed for the imposition of charges or levies for waste services, this may only be done for cost recovery purposes. As the bylaws imposed levies on the amount of waste collected, the limits of the legislation were being exceeded and therefore the bylaws were ultra vires and invalid. The Court also could not find any justification for the waste levy in the LGA 2002:115
The waste levy is a tax, as it involves the compulsory exaction from licensees money not related to services received or costs incurred. It is intended to fund
111 Roscoe & Jenkins, Waste Minimisation Legislation Update Report, supra note 90, at 11. 112 Ibid.
318 New Zealand Journal of Environmental Law
general waste management strategies not connected to the specific activities of the licensees.
and116
There is nothing in the 1974 legislation which authorises levies not related to costs recovery.
The Court considered that s 540 of the LGA 1974 does grant the power to allocate in a way that provides for disincentives and incentives promoting the local authorities’ waste minimisation plans. It confirmed that a licensee can be required to pay a more substantial levy than the costs of the services, provided the council had incurred the costs.117 The essence of this part of the ruling is that the waste levy based upon on the amount of waste collected by a licensed collector in cases where no services are provided and serving as a waste minimisation device only, is invalid. Where services are provided, a levy may be imposed recovering more than the costs of the services.
An important part of the High Court case was the consideration by the Court of what constitutes “waste”. The definition of waste determines the extent of the territorial authorities’ responsibilities and powers regarding waste management. The LGA 1974 and the LGA 2002 do not define waste. It was argued on behalf of one of the plaintiffs that recycling material is not waste and therefore the defendant councils’ bylaws that extended to recycling material were invalid. The plaintiff argued further that even if recycling material was waste, the imposition of a licensing regime was unreasonable and therefore invalid. Material does not become waste until the owner discards it. Where the plaintiff has a contract for the collection of recyclable material, such as paper, from its clients the necessary intention to discard the material is not present and therefore recyclable materials are not waste. The defendant councils’ bylaws were worded in such a manner that recyclable material was included in the definition of waste. In its judgment the Court discussed the scheme and purpose of the LGAs 1974 and 2002 relating to waste and came to the conclusion that an expansive definition that included recyclable material gave effect to the intention of the legislation and was in accordance with the ordinary meaning of the words. According to Asher J:118
Waste is material that is no longer wanted by its owner and which, but for commercial and other initiatives to reuse it or recycle it, would be discarded.
The Waste Minimisation Act 2008 319
To limit the councils’ ability to enact bylaws for waste to waste that is actually discarded and available for collection would mean that councils would have no ability to control or monitor recycling operations. The ultimate goal must be a zero ‘waste’ situation, where no material is left for landfill and/or discharge, and all material that has been used is available for reuse and recycling. This perfect goal can only be attained if councils retain an overview of the flow of used material.
The Court held that the bylaws showed a balance between the public right to freely transport waste and the territorial authorities’ need to monitor and regulate waste and that the licensing system imposed by the bylaws was valid. It is interesting to note that following the recommendation of the Ministry for the Environment119 the wider description of waste used by Asher J found its way into the definition of waste in the Waste Minimisation (Solids) Bill as reported from the Local Government and Environment Committee120 but was replaced with a more restricted definition in the Waste Minimisation Act 2008 following representations by the Scrap Metal Recycling Association of New Zealand.121
Carter Holt Harvey appealed the decision of the High Court regarding the validity of the licensing system.122 The single issue the Court of Appeal had to consider was whether the used and unwanted paper that the plaintiff collected pursuant to contracts with its customers was waste, as provided for by Part 31 of the LGA 1974. If the recyclable paper is waste it is included in the licensing system imposed by the defendant councils on the collectors and transporters of waste. If not, the bylaws only regulate waste and this does not include recyclable materials. The plaintiff argued that discarded paper is not waste unless and until the owner abandons all rights and interest in the material by an overt act such as leaving it on the kerbside for collection by the local authority. A person who owns an item may, when it is no longer wanted, sell the item to another who may have use for it and such item is not waste.123 The defendant councils contended that unwanted paper collected from private residences was “waste
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paper” as defined in their bylaws and unwanted paper collected from businesses was included in the licensing system as “commercial wastes” as also defined in their bylaws. The LGAs 1974 and 2002 provide that although material may have some value as a commodity, it may be regarded as waste for the purpose of the legislation. As recycling is an integral part of waste management and the waste hierarchy, recyclable material has to be included in the definition of waste.124The question that was to be decided by the Court was:125
Whether the paper is ‘waste’ for the purpose of the Local Government Acts 1994 [sic] and 2002 ... depends on whether that term is defined as material which is abandoned by its owner (Carter Holt’s contention) or whether its meaning extends to any material which is disposed of, provided that it cannot be reused in its existing form for its original or similar purposes (the Councils’ position).
The Court found in favour of the plaintiff. The bylaws imposing a licensing system on the collectors and transporters of recyclable materials were found to be invalid.
The test of whether a former owner has abandoned material, we think, accords with common usage and common sense. It is also a clear and practical way of distinguishing between what is ‘waste’ and what is not.
In the case of used and unwanted paper, paper, which is left at the kerb for collection or the recycling centre, has obviously been abandoned by its former owner and is therefore ‘waste’. The paper which Carter Holt acquires by contract has, equally clearly, not been abandoned and is therefore not ‘waste’. In essence, Carter Holt acquires a second hand good for consideration rather than collecting ‘waste’.126
The effect of the High Court’s decision is to overturn the waste levy as an economic instrument used by local authorities to promote waste minimisation when the levy is not related to services used by collectors and transporters of waste.127 The effect of the Court of Appeal’s decision is to limit the ability of local authorities to acquire information relating to recycling in their districts. This has an adverse effect on the data used in their waste management plans. Both decisions have had adverse effects on the ability of the territorial authorities to achieve the objective of zero waste stated in the New Zealand
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Waste Strategy.128 The decisions of the Courts provided the impetus for the introduction of the Waste Minimisation Act 2008.129
6. THE EXTENT OF THE PROBLEM — SOME STATISTICS ON WASTE
Waste provides proof of the inefficient use of the available resources.130 Historically the amount of waste we generated increased with the increase in population and as production and consumption grew. As indicated in this paper, up to the adoption of the Local Government Amendment Act (No 4) 1996 there was little legislative recognition of waste as a “wasted resource”. The above- mentioned Act reflected the growing awareness that scarce resources were being wasted.
The Ministry for the Environment provides information on the extent and nature of solid waste and the management thereof in New Zealand.131 The following statistics illustrate developments since the enactment of the Local Government Amendment Act (No 4) 1996 and the New Zealand Waste Strategy that set targets in 2002:
2.4 million tonnes was not sent to landfills or clearfills and therefore it is thought 6.3 million tonnes ended up in landfills or clearfills. According to the Ministry for the Environment this represents 1572 kilograms of solid waste per person in New Zealand.132 This averaged figure includes domestic, commercial, industrial, and institutional waste sources. Construction and demolition wastes represent a large part of the solid waste that ends up in clearfills. As clearfills are a permitted activity in many regional and district plans, they are not well monitored and little information about them and how much waste they dispose of is available. It is estimated that there may be more than 300 clearfills in New Zealand.
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approximately 3.2 million tonnes of waste goes to landfills each year in New Zealand and authorities indicate that annually about $250 million worth of potentially reusable resources are discarded into landfills.133 Household waste is 1.5 million tonnes, 50 per cent from kerbside collection and 50 per cent from direct delivery to landfills and transfer stations.134
3.156 million tonnes in 2006 (784 kg per person for 2006).
Converted to tonnes of waste disposed of to landfills per thousand dollars of GDP, the estimated waste disposed of in 2006 was 29 per cent lower than in 1995. This decrease indicates a decoupling from economic growth of waste disposal to landfills.
133 (2008) Vol 650 New Zealand Parliamentary Debates 18830 (Russel Norman). 134 Ward, Issues Associated with a Levy on Solid Waste, supra note 113.
The Waste Minimisation Act 2008 323
Figure 1
and demolition material.138 The amount of organic waste that was sent to landfills has reduced from 47 per cent in 1995.
Auckland City Council has introduced a new initiative to deal with solid waste recovery140 and the statistics provide an indication of the magnitude of waste management issues in the largest territorial local authority in New Zealand.
324 New Zealand Journal of Environmental Law
Waste Minimisation Act 2008 325
|
Primary category
|
Proportion of total
(95% confidence interval)
|
Mean mass / bin
(95% confidence interval)
|
||
|
Paper
|
10.8%
|
(±1.5%)
|
1.05 kg
|
(±0.14 kg)
|
|
Plastics
|
10.5%
|
(±0.9%)
|
1.02 kg
|
(±0.08 kg)
|
|
Putrescibles
|
51.1%
|
(±3.9%)
|
4.95 kg
|
(±0.38 kg)
|
|
Ferrous metals
|
2.4%
|
(±1.1%)
|
0.23 kg
|
(±0.10 kg)
|
|
Non-ferrous metals
|
0.6%
|
(±0.1%)
|
0.06 kg
|
(±0.01 kg)
|
|
Glass
|
2.0%
|
(±0.5%)
|
0.19 kg
|
(±0.05 kg)
|
|
Textiles
|
4.3%
|
(±1.4%)
|
0.42 kg
|
(±0.13 kg)
|
|
Nappies & sanitary
|
11.6%
|
(±3.1%)
|
1.13 kg
|
(±0.30 kg)
|
|
Rubble, concrete, etc
|
3.8%
|
(±2.7%)
|
0.37 kg
|
(±0.26 kg)
|
|
Timber
|
1.7%
|
(±1.0%)
|
0.16 kg
|
(±0.09 kg)
|
|
Rubber
|
0.2%
|
(±0.1%)
|
0.02 kg
|
(±0.01 kg)
|
|
Potentially hazardous
|
0.9%
|
(±0.6%)
|
0.09 kg
|
(±0.06 kg)
|
|
TOTAL
|
100.0%
|
|
9.69 kg
|
(±0.74 kg)
|
Figure 2
(Source: Waste Not Consulting)
326 New Zealand Journal of Environmental Law
|
|
Proportion of total
|
Kg/household
|
|
Recyclable materials
|
|
|
|
Paper — recyclable packaging
(includes Tetra Pak)
|
3.4%
|
0.33 kg
|
|
Paper — recyclable other
(includes junk mail) |
6.2%
|
0.60 kg
|
|
Plastics — # 1234567 packaging
|
1.7%
|
0.16 kg
|
|
Ferrous metals — steel cans
|
0.8%
|
0.08 kg
|
|
Non-ferrous metals —
aluminium cans
|
0.2%
|
0.02 kg
|
|
Glass — bottles/jars
|
1.5%
|
0.15 kg
|
|
Total recyclable
|
13.8%
|
1.34 kg
|
|
Compostable materials
|
|
|
|
Putrescibles — kitchen waste
|
37.0%
|
3.59 kg
|
|
Putrescibles — green waste
|
10.7%
|
1.04 kg
|
|
Total compostable
|
47.7%
|
4.63 kg
|
|
Total divertible (recyclable
|
61.6%
|
5.97 kg
|
or compostable)
Figure 3
(Source: Waste Not Consulting)
7. THE WASTE MINIMISATION ACT 2008
The Waste Minimisation Act 2008 (No 89 of 2008) started the legislative process in May 2006 as a Member’s Bill, introduced by Nandor Tanczos of the Green Party. With cross-party support during the select committee stage it was adopted as a Government Bill. The first reading was on 14 June 2006, the second on 18 June 2008, and the third on 11 September 2008. The Bill received royal assent on 25 September 2008.149 With the exception of Part 3 (other than s 41) and s 62 that come into effect on 1 July 2009, the Act came into effect on 26 September 2008.150 It repeals and replaces Part 31 of the LGA 1974 that came into effect with the adoption of the Local Government Act (No 4) 1996.
The purpose of the Act is
149 New Zealand Parliament, Bills, SOPs, Acts, Regulations — Waste Minimisation Bill (2008), at <http://www.parliament.nz/en-NZ/PB/Legislation/Bills/c/c/e/00DBHOH_BILL7267_1- Waste-Minimisation-Bill.htm> (accessed 20 October 2008).
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to encourage waste minimisation and a decrease in waste disposal in order to—
(a) protect the environment from harm; and(b) provide environmental, social, economic, and cultural benefits.
The Waste Minimisation Act 2008 continues the sustainability objectives set in its predecessor, the Resource Management Act 1991 and the Local Government Act 2002. The reference to environmental, social, economic, and cultural benefits resonates with the requirements for long-term council community plans and decision-making requirements of the LGA 2002,151 while the objective to protect the environment from harm has a link to the purpose of the RMA.152
7.1 Definitions
A number of definitions have been introduced that are either new or different from those in the repealed legislation. These will influence the extent and ability of the territorial authorities to manage solid waste.
The definition of “disposal” has been amended from that contained in the LGA 1974. Disposal means153
the final (or more than short-term) deposit of waste into or onto land set apart for that purpose or the incineration of waste. For all purposes relating to the levy, final (or more than short-term) deposit of waste means any deposit of waste other than a deposit referred to in section 26(3). Incineration means the deliberate burning of waste to destroy it, but not to recover energy from it.
In practice an operator of a disposal facility may have difficulty determining if material that is being offloaded is being temporarily stored, in which case no levy is to be charged, or if it is being discarded, in which case a levy is due. Furthermore, material may initially be stored but may be discarded as a result of a change in the fortunes of the owner or a fluctuation in the market price of the commodity.
The definition of a “disposal facility” is inexplicably restricted to businesses that operate to dispose of waste where, amongst other waste, household waste is disposed of. Waste disposal facilities not disposing of household waste are presumably not included in the definition unless added to by way of regulation.
The concept of “diverted materials” as distinct from “waste” was introduced by Supplementary Order Paper No 224 at the third reading. Diverted material means
328 New Zealand Journal of Environmental Law
anything that is no longer required for its original purpose and, but for commercial or other waste minimisation activities, would be disposed of or discarded.
Diverted material is defined from the perspective of the usefulness of the material. Diverted material is not subject to a waste levy, unless disposed of.154 The introduction of “diverted material” coincided with the introduction of
a narrower definition of “waste”.155 Waste is anything disposed of or discarded, including any component or element of diverted material. While the meaning of “disposed” is part of the definition of disposal, “discarded” is not defined. It is interesting to note that waste is defined from the owner’s point of view and such person’s intentions determine if a material is waste or not, commensurate with the decision of the Court of Appeal in the Carter Holt Harvey case.156 This contrasts with the wider description of waste used by the High Court found in the Waste Minimisation (Solids) Bill as reported from the Local Government and Environment Committee during the second reading.157 The disposal of waste is subject to a waste levy.158
7.2 Product Stewardship
Part 2 of the Waste Minimisation Act 2008 provides for a mechanism for extended producer responsibility contained in the New Zealand Waste Strategy and recommended by the OECD. A dual system of priority products that require compulsory registration of a product stewardship scheme and the accreditation of voluntary product stewardship schemes is provided for. The purpose of the product stewardship system is159
to encourage (and, in certain circumstances, require) persons involved in the life of a product to share responsibility for ensuring there is effective reduction, reuse, recycling, or recovery of the product and managing any environmental harm arising from the product when it becomes waste.
[2008] 1 NZLR 745, at 748.
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The Act does not grant territorial authorities any specific role in the product stewardship system.Currently, priority products have not yet been identified. Indications are that criteria for determining priority products are yet to be finalised.160 Before a product is designated as a priority product by the Minister for the Environment (“the Minister”) the advice of the Waste Advisory Board has to be obtained, the public must be provided with an opportunity to comment on the proposal, public concerns about environmental harm associated with the product when it becomes waste (including concerns about its disposal) must be taken into account, and the effectiveness of any relevant voluntary product stewardship scheme must be considered. The Minister may only declare a product as being part of a priority product list if 161
the product will or may cause significant environmental harm when it becomes waste or there are significant benefits from reduction, reuse, recycling, recovery, or treatment of the product and it can be effectively managed under a product stewardship scheme.
Products already part of voluntary product stewardship schemes may be accredited as priority products. The Minister may prescribe guidelines for any priority product scheme and regulations issued for priority products. The form of any accredited priority product stewardship scheme will be developed with the relevant industry. Indications are that the most common priority products are used oil, electronic waste, tyres and packaging and these already are part of voluntary stewardship schemes.162
Where voluntary product stewardship schemes exist, the managers may apply for accreditation thereof. A number of voluntary product stewardship schemes already exist — for example, packaging, used oil, whiteware, refrigerants, farm plastics, tyres, cell phones and paint.163 An accreditation process is prescribed that requires the provision of extensive information relating to the product and the scheme.164 Criteria are set for accreditation. In particular, the applicant manager must provide a description of the scope of the scheme, including the product or brand of product to which it applies, and the measurable waste minimisation, treatment, or disposal objectives for
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the product and timeframes for meeting the objectives of the scheme must be provided.165 The Minister must accredit a product stewardship scheme if he or she is satisfied that it meets the criteria of the Act.166 Provision is made for variation, expiry and revocation of accredited schemes.167 The Secretary for the Environment is to monitor the performance of accredited schemes and recover the costs of doing so from the scheme manager.168The benefit of accreditation of a voluntary product stewardship scheme is to get the full potential from such schemes and to encourage similar schemes. Presumably, accredited schemes could apply to the contestable waste levy fund for funding of programmes and initiatives.
7.3 The Waste Disposal Levy
Part 3 of the Waste Minimisation Act 2008 provides for a national waste disposal levy. The levy is an attempt to give effect to the “full cost pricing” core principle of the New Zealand Waste Strategy and the “polluter pays” principle recommended by the OECD by increasing the cost of waste disposal to recognise that disposal imposes costs on the environment, society, and the economy.169 It further provides revenue for promoting and achieving waste minimisation. A levy is imposed on waste disposed of at a disposal facility and is payable from 1 July 2009.170
The waste disposal levy does not apply to diverted material or material that is being stored for a period of less than six months. The operator of the disposal facility must pay the levy to a collector appointed by the Secretary for the Environment (“the Secretary”) but it is expected that operators will pass the levy on to their clients. The initial levy has been set at $10 per tonne (plus GST). Although the measure is intended to encourage persons who generate waste to reduce the amount of waste being disposed of and divert material for reusing, recycling and recovery, the primary purpose of the levy is to raise revenue for waste minimisation.171 At the current rate it is estimated that the annual revenue will be approximately $31 million.172 The current rate is unlikely to have a marked influence on disposal patterns173 and was set at an introductory rate to assess its impact. The imposition of the waste disposal levy may have
167 Ibid, ss 16, 17 & 18.
173 Ibid; Roscoe & Jenkins, Waste Minimisation Legislation Update Report, supra note 90, at 9.
Waste Minimisation Act 2008 331
the unintended consequence of promoting illegal dumping. The Secretary may waive the waste disposal levy in exceptional circumstances.The territorial authorities are to receive 50 per cent of the annual waste disposal levy, calculated on the size of the population of their respective districts.174 In the case of Auckland City Council its expected share may amount to $1.6 million per annum, based on the 2006 population statistics. It is not yet clear how territorial authorities’ shares of the waste disposal levy are to be paid to them and regulations will have to provide for this.175
The territorial authorities are not entitled to their allocated share of the funds unless they have adopted waste management and minimisation plans.176 The funds may only be spent by territorial authorities in accordance with their waste management and minimisation plans to promote or achieve waste minimisation.177 The funds may be spent on new or existing services or programmes. Existing services and programmes have to be in accordance with the existing waste minimisation plan (valid until 1 July 2012) or with any new waste management and minimisation plan and must promote or achieve waste minimisation. When allocating funding, a territorial authority must consider the effect this will have on existing waste management services, facilities and activities.178 If an existing facility such as a landfill does not promote waste minimisation, funds cannot be allocated to it.
The Secretary may withhold a territorial authority’s payment for a financial year if the Minister so instructs. The Minister may issue such an instruction if a territorial authority has previously failed to spend levy money in accordance with its waste management and minimisation plan or a performance standard set by the Minister or it has failed to provide the required records or information.179 This will ensure that territorial authorities do not use the funds as a rates subsidy. Any funds that the Secretary retains are to be diverted to the contestable fund.180
The other 50 per cent of the waste disposal levy will be held in a contestable fund and may be allocated by the Minister for waste minimisation projects that meet criteria that are still to be determined. The Ministry for the Environment has indicated181 that projects likely to be funded will probably be projects that:
174 Waste Minimisation Act 2008, s 31.
175 Ibid, s 31(3).
176 Ibid, s 33.
177 Ibid, s 32 (1).
178 Ibid, 30(2), s 32 (2).
179 Ibid, s 37.
180 Ibid, s 33(2).
181 Mf E, The Regulatory impact statement, supra note 162.
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In addition to the allocated share of the waste disposal levy, the territorial authorities are able to submit applications for funding for approved services, programmes and initiatives from the contestable fund.
The LGA 2002 provides that a territorial authority must, in its long-term council community plan and its annual plan, make provision for meeting the expenditure needs of the local community.182 The funding needs must be met from the sources the territorial authority determines according to the criteria contained in that Act. The territorial authority must provide a revenue and finance policy that may be included in its long-term council community plan.183 The revenue and finance policy is to include the territorial authority’s policy relating to the funding of operating expenses and capital expenditure. It must make reference to the sources contained in the LGA 2002.184 These include targeted rates. The Auckland City Council’s annual plan for the 2008/2009 financial year provides for an income from targeted rates for refuse collection in the amount of $34,485,000 and it is projected that this amount will increase to $41,562,000 by the 2015/2016 financial year.185 After the commencement of the waste disposal levy in July 2009, territorial authorities will have to consider whether it is appropriate to charge targeted rates for the collection of waste and collect the waste disposal levy. The waste disposal levy can only
182 LGA 2002, s 101.
183 Ibid, s 102(4).
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be used for waste minimisation activities contained in the waste management and minimisation plans while targeted rates fund the collection of waste and diverted material.In considering the options available for funding of waste management and minimisation services, programmes and initiatives, the territorial authorities will also have to consider that the Waste Minimisation Act 2008 provides for other funding sources in addition to the waste disposal levy such as charges for services and facilities,186 contracting and charging for services, facilities or activities,187 and the licensing of collectors and transporters of waste.188
A territorial authority providing a waste management and minimisa- tion service, facility, or activity or contracts for the provision thereof, may do so at a rate that is higher or lower than required to recover the costs of the service or facility. This may only be done where the rate provides an incentive or disincentive promoting the objectives of its waste management and minimisation plan, if the plan provides for this.189
7.4 The Responsibility of Territorial Authorities
Part 4 of the Waste Minimisation Act 2008 provides for the responsibilities of territorial authorities. A territorial authority must promote effective and efficient waste management and minimisation within its district.190 Waste management and minimisation means “waste minimisation and treatment and disposal of waste” and does not include diverted material.191 Waste minimisation is a wide concept that refers to “the reduction of waste and the reuse, recycling, and recovery of waste and diverted material”. Reuse, recycling and recovery all refer to waste and diverted materials. Territorial authorities have to provide waste management and minimisation plans.192 The existing waste minimisation plans that have been prepared pursuant to Part 31 of the LGA 1974 remain operational until 1 July 2012. The waste levy may only be used for activities contained in the waste management plans or the newly required waste management and minimisation plans. It is likely that territorial authorities will be reviewing the existing plans to enable them to make more appropriate and effective use of the available funding.
A new requirement contained in the Waste Minimisation Act 2008 is that territorial authorities are to do waste assessments for their districts before
189 Ibid, ss 46(2) & 52.
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considering their waste management and minimisation plans.193 The waste assessment requirements are reminiscent of the requirements for the assessment by territorial authorities of water and sanitary services in the LGA 2002.194 In drafting a waste assessment territorial authorities are to provide descriptions of the collection, recycling, recovery, treatment, and disposal services in their districts. This means that territorial authorities have to include in their assessments the available commercial operations providing for the collection and transportation of diverted materials. Territorial authorities have to consider future demands for services for collection, recycling, recovery, treatment, and disposal services and the options available to meet these demands. The suitability of each option has to be discussed and territorial authorities have to explain their intended role in meeting future demands. Territorial authorities must explain how their proposals will meet those future demands and promote effective and efficient waste management and minimisation. They must indicate how their proposals will ensure that public health will adequately be protected.195The Act recognises that territorial authorities may have difficulties in obtaining the information and requires them to use their best efforts to provide full and balanced assessments. Territorial authorities are compelled to consult with the local medical officer of health when doing their waste assessments. In doing its assessment a territorial authority may collect appropriate information having regard to the significance of the information, the costs of, and difficulty in, obtaining the information, the extent of the territorial authority’s resources, and the possibility that the territorial authority may be directed under the Health Act 1956196 to provide the services referred to in that legislation. The Act provides for the medical officer of health to serve notice on a territorial authority if it provides a waste collection service to premises and fails to collect waste from the premises promptly or efficiently and the omission causes, or is likely to cause, a nuisance.197
Section 42 of the Waste Minimisation Act 2008 requires territorial authorities to provide waste management and minimisation plans. It states:
A waste management and minimisation plan must provide for the following:
(a) objectives and policies for achieving effective and efficient waste management and minimisation within the territorial authority’s district;(b) methods for achieving effective and efficient waste management and minimisation within the territorial authority’s district, including—
196 Health Act 1956, ss 25, 123 & 123A.
197 Waste Minimisation Act 2008, s 55.
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(i) collection, recovery, recycling, treatment, and disposal services for the district to meet its current and future waste management and minimisation needs (whether provided by the territorial authority or otherwise); and(ii) any waste management and minimisation facilities provided, or to be provided, by the territorial authority; and
(iii) any waste management and minimisation activities, including any educational or public awareness activities, provided, or to be provided, by the territorial authority;
(c) how implementing the plan is to be funded;
(d) if the territorial authority wishes to make grants or advances of money in accordance with section 47, the framework for doing so.
In preparing waste minimisation and management plans territorial authorities have to consider reduction, reuse, recycling, recovery, treatment and disposal (in descending order of importance) as methods of waste management and minimisation.198 They are further to have regard to the New Zealand Waste Strategy and the recent waste assessment every territorial authority is required to do.199 It is expected that the New Zealand Waste Strategy will be reviewed as its targets are outdated. The Minister may set performance standards for the implementation of waste management and minimisation plans and may instruct the Secretary not to pay the due waste disposal levy to any territorial authority that fails to meet the performance standard.200
The new, more onerous, requirements relating to waste assessments and waste management and minimisation plans and the possibility that local authorities may not be able to obtain information relating to collectors and transporters of diverted material (which is not waste) are of concern. This challenge is exacerbated for territorial authorities as their bylaw-making powers are limited to waste and exclude diverted material.201 Pursuant to the Court of Appeal decision in the Carter Holt Harvey 202 case, the Act restricts the ability of territorial authorities to license collectors and transporters of waste and excludes diverted materials. This severely hampers data collection that is required to provide inclusive waste management and minimisation plans.
As foreseen by Asher J in the High Court decision in the Carter Holt
198 Ibid, s 44.
199 Ibid, ss 44 & 51.
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Harvey 203 case, access to data is imperative in working towards the goal of zero waste, and it is worth reiterating his words here:204
To limit the councils’ ability to enact bylaws for waste to waste that is actually discarded and available for collection would mean that councils would have no ability to control or monitor recycling operations. The ultimate goal must be a zero ‘waste’ situation, where no material is left for landfill and/or discharge, and all material that has been used is available for reuse and recycling. This perfect goal can only be attained if councils retain an overview of the flow of used material.
The Controller and Auditor-General205 noted when referring to waste (inclusive to what is now diverted material):
When preparing a waste management plan, territorial authorities need infor- mation about how much waste is managed in the district and what this waste comprises. This information is the essential starting point, so that territorial authorities can see where best to focus waste management activities. Information on trends helps territorial authorities to forecast future waste quantities, and therefore to estimate future demand for waste services and whether they will have sufficient capacity for future waste.
Most plans included information about the waste quantity managed in the district, although only a quarter of all plans had information about future quantities the authority could expect to manage. A number of plans had noted difficulties in obtaining data on waste. Several territorial authorities had established bylaws to collect information about the quantity of waste managed by private operators.
The Act provides for the making of regulations requiring persons to provide information to the Secretary. The regulations may require “the operator of a disposal facility to keep, and provide to the Secretary ... records and information to enable amounts of levy payable by the operator to be accurately calculated”.206 In addition, they may require207
any class of person to keep, and provide to the Secretary, records and information to assist the Secretary to compile statistics in order to—
(i) measure progress in waste management and minimisation:
203 Carter Holt Harvey Ltd v North Shore City Council [2006] 2 NZLR 788. 204 Ibid, at 804.
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(ii) report on the state of New Zealand’s environment:(iii) assess New Zealand’s performance in waste minimisation and decreasing waste disposal:
(iv) identify improvements needed in infrastructure for waste minimisation:
During the third reading, Russel Norman of the Green Party expressed the following hope regarding the availability of information to the local territorial authorities:208
However, as a consequence, local government has reduced powers to license and to collect information. It can do this only for waste and not for diverted materials. Fortunately, the Ministry for the Environment can collect information on all materials, whether discarded or diverted, and we hope it actually does this and shares it with local government as appropriate, so that local government can get the information it needs.
Current indications are that the Minister for the Environment will only be requiring and publishing high-level information to track trends in New Zealand.209 It will be unfortunate if territorial authorities are unable to access information relating to the commercial collection and transportation of diverted material during the waste assessments. This will adversely affect the quality of the waste management and minimisation plans and may have an influence on the ability to meet performance standards.
The Governor-General may, on recommendation of the Minister, direct a territorial local authority to modify its waste management and minimisation plan to improve consistency, encourage best practice and ensure that revenue collected from the waste levy is used to assist with its performance in waste management.210 The Minister is not to make a recommendation unless satisfied the waste management and minimisation plan is inadequate to promote effective and efficient waste management and minimisation within its district, or the proposed changes to the waste management and minimisation plan will assist in achieving the New Zealand Waste Strategy or any replacement policy.211
The bylaw-making powers of the territorial authorities are similar to that of the repealed legislation.212 The bylaw-making power is in addition to that in the LGA 2002.213 Bylaws are made in the manner provided for in the LGA 2002,
208 (2008) Vol 650 New Zealand Parliamentary Debates 18830 (Russel Norman). 209 Mf E, The Waste Minimisation Act — Questions and Answers, supra note 160.
213 LGA 2002, s 146(2).
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using the special consultative procedure.214 Bylaws may be made to regulate the collection, transportation and deposit of waste. Bylaws must be consistent with the territorial authorities’ waste management and minimisation plans.215 This bylaw-making power excludes control over diverted material. Bylaws may control access to waste management and minimisation facilities owned or operated by territorial authorities and the charges to be paid for use of these facilities may be prescribed. Waste management and minimisation facilities are not defined in the Act. The Act provides for and defines a “disposal facility”.216 Presumably a waste management and minimisation facility refers to a facility that provides for “waste minimisation and treatment and disposal of waste”.217 Section 56(1) provides that territorial authorities may make bylaws to control landfills, clearfills, and waste transfer stations owned or managed by them. As indicated earlier, there has been a decrease in the number of landfills in New Zealand, and in the case of the Auckland region waste management and minimisation facilities are, with rare exception such as the Claris landfill on Great Barrier Island, privately owned or managed.A bylaw may prohibit any person, except the owner or a person authorised by the territorial authority, from removing waste intended for recycling from receptacles provided by the territorial authority.218 The wording of the particular provision lacks clarity as waste intended for recycling is by definition not “waste” but is to be regarded as “diverted material”.
The territorial local authorities may license commercial and non- commercial collectors and transporters of waste and require licensees to provide performance bonds and reports on the quantity, composition, and destination of waste collected and transported by the licensee.219 The power is similar to that in the repealed legislation and does not allow for the licensing of the collectors and transporters of diverted materials. It restricts the bylaw-making ability of the territorial authorities regarding the licensing of the collectors and transporters of waste as provided for by the Court of Appeal in the Carter Holt Harvey 220 case. Conceivably, entities that collect and transport waste are also engaged in the collection of diverted materials, in which case they are only to be licensed and may only be required to provide information regarding the collection of waste.
The practical effect the distinction between waste and diverted material may have is of concern. The market will determine if a material capable of being
214 Waste Minimisation Act 2008, s 56(5).
215 Ibid, s 56(2).
218 Ibid, s 56(1)(f ).
219 Ibid, s 56(4).
220 Carter Holt Harvey Ltd v North Shore City Council [2008] 1 NZLR 745, at 748.
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reused, recycled or recovered provides business opportunities for collectors and transporters of diverted material. In a challenging economic climate there may be no demand for a particular material. This is then discarded and becomes waste for which the territorial authorities are responsible and for which they may impose a licensing system to obtain information. When demand increases for the material, it may become diverted material, and collectors and transporters will not be subject to the same licensing system. Market fluctuations may cause difficulties for the waste assessment and waste management and minimisation plans of territorial authorities.
7.5 Miscellaneous Issues
Part 5 of the Waste Minimisation Act 2008 provides for offences, defences, liability, injunctions and enforcement measures.
Part 6 provides for regulations requiring information from operators of disposal facilities, territorial authorities or other persons. Auditors appointed by the Minister may audit disposal facilities, product stewardship schemes, territorial authorities and other persons involved in waste management and minimisation.
Part 7 provides for the establishment of a Waste Advisory Board. The function of the Board is to provide advice to the Minister upon request, within terms of reference set by the Minister. The advice is to relate to waste minimisation or the functions of the Secretary or the Minister.221 The part further provides for the appointment of members of the Board, the terms of appointment, and other ancillary matters relating to the functioning of the Board.
8. CONCLUSION
While its predecessors included waste management as part of local government or health-related issues, the Waste Minimisation Act 2008 is the first New Zealand legislation that specifically regulates waste. Its purpose is to encourage a reduction of waste generation and ameliorate the environmental harm of waste. It finds resonance with other legislation with sustainability as a priority. The Waste Minimisation Act 2008 is an important step forward to enable territorial authorities to provide for waste management within their districts but it falls short in some crucial areas. It is disappointing that, while local authorities are required to be the co-ordinators of local waste management and minimisation services, programmes and initiatives, they may be hamstrung
221 Waste Minimisation Act 2008, s 90.
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by a lack of information that may adversely affect their ability to achieve the purpose of the Act. Progressive territorial authorities that have over a number of years been leading exponents of zero waste programmes and initiatives have not been enabled to continue with holistic waste management and minimisation programmes and initiatives due to the adverse legislative interpretation of the repealed legislation. While the Waste Minimisation (Solids) Bill initially addressed the concerns of these territorial authorities, the Waste Minimisation Act 2008 retained an important constraint on the ability of territorial authorities to collect vital information. Hopefully the issue will be dealt with by necessary regulation.The legislation and the New Zealand Waste Strategy encourage territorial authorities to use the “5R” principles when developing waste management and minimisation plans. The Controller and Auditor-General has pointed out that the waste management plans of the territorial authorities that he reviewed during 2007 placed emphasis on recycling and recovery with less emphasis on reduction and reuse which should be the priority. There are no indications that the services, programmes and initiatives of territorial authorities will be changed as a result of the Waste Minimisation Act 2008 unless the Minister prescribes performance standards that require this to happen.
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