Many local councils have long established practices to process tree clippings from its tree maintenance operations through its wood chipping machine into leaf and woodchip. As part of the pasteurisation process, the leaf and woodchip is then stockpiled in concrete bays for months and turned over and hosed on a regular basis. The finished mulch product will then be used as surface mulch to suppress weeds on councils’ gardens in parks, reserves and street scape plantings. Some councils also regularly supply this mulch to local schools and residents, sometimes free of charge.
- New Resource Recovery Orders and Exemptions
- On 25 July 2016 the Environment Protection Authority issued the revised Resource Recovery Orders and Resource Recovery Exemptions under clause 93 of the Protection of the Environment Operations (Waste) Regulation 2014 to replace Raw Mulch Order 2014 and Raw Mulch Exemption The new orders impose the requirements that must be met by suppliers of mulch to which ‘the mulch exemption 2016’ applies. The new orders also make distinction between non-pasteurised mulch and pasteurised mulch.
- Mulch Order 2016 and Mulch Exemption 2016 specify the requirements and exemption for non-pasteurised mulch generated from plant material that poses low risk of contaminants, e.g. tree clippings from councils’ usual maintenance operations.
- Pasteurised Garden Organic Order 2016 and Pasteurised Garden Organic Exemption 2016 specify the requirements and exemption for pasteurised mulch generated from plant material that poses high risk e.g. tree clippings from kerbside waste collection. For further details, please see separate article “How do Pasteurised Garden Organic Order and Exemption affect Councils’ tree maintenance operations?”.
What is “mulch”?
“Mulch” is defined in clause 1.1 of the Mulch Order 2016 as
“plant material shredded and/or screened to a preferred particle size grading for particular application…..
Mulch may include urban wood residues and forestry and sawmill residues.
Mulch does not include plant material from kerbside waste collections”.
How does the Mulch Order 2016 affect councils’ usual practices?
The Mulch Order 2016 applies to suppliers of mulch, e.g. councils, which generate, process or recover mulch (clause 2.1). The Mulch Order 2016 imposes certain requirements that must be met by councils as a supplier of the mulch.
The Mulch Order 2016 does not impose any requirement of pasteurisation on tree clippings obtained by councils even though pasteurisation may be considered as a minimum treatment to significantly reduce plant pathogens and propagules by the Environmental Planning Association. In this regard, in our view, the decision whether to pasteurise the mulch remains within councils’ discretion. For councils that undertake pasteurisation process on their tree clippings, please refer to a separate article “How do Pasteurised Garden Organic Order and Exemption affect Councils’ tree maintenance operations?” for more details.
In our view, in absence of any provisions in the Mulch Order 2016 that prohibit otherwise, councils may continue with its usual tree maintenance operations, namely, collecting tree clippings (with the exception of clippings obtained from kerbside waste collections), processing it into mulch and supplying it for the application on Council’s gardens or to local schools and residents. However it is important to note the additional requirements imposed by the Mulch Order 2016 in terms of risk management and record keeping that councils must comply with as suppliers of mulch.
What are the additional requirements that councils must comply?
Council, as the processor and supplier of mulch is required to comply with the Processor requirements (clause 5) and Risk Management Protocol (clause 6) as set out in the Mulch Order 2016 which involves ensuring the conditions of the mulch to be of certain standards and specifications, maintaining a detailed written risk management protocol; providing written measures to the consumers of the mulch and keeping good records, etc.
Having said that, arguably as the legislation currently reads, whilst it is clear that the Mulch Order 2016 applies to the “supplier” of mulch, if councils only use the mulch on councils’ own land and does not give it away (i.e. supplying) to the general public e.g. local residents or schools, in our view, councils, are technically not acting as a “supplier” and therefore the Mulch Order 2016 does not apply.
Other councils have since refrained from supplying mulch to the general public as they have found the new requirements somewhat too onerous to comply. In this regard, our firm has provided legal advice to these councils and assisted in the drafting of notices, signage and newsletters to implement the change.
Does the Mulch Exemption 2016 apply to councils as suppliers of mulch?
The Mulch Exemption 2016 applies to mulch applied to land as a soil amendment (clause 1.1), to any person who applies, or intends to apply, mulch to the land (clause 2.1) and the premises at which the mulch is applied (clause 4.1). In other words, the exemption is only applicable to the mulch supplied, the recipients of the mulch who who intend to apply it and the site in which the mulch is to be applied. The exemption does not apply to councils as suppliers and does not affect the extent of councils’ compliance with the Mulch Order 2016 requirements.
If you have any specific questions or require legal advice in relation to the Mulch Order 2016 and Mulch Exemption 2016, please contact our experienced environment planning lawyers on 9635 7966.
