Land and Environment Court New South Wales Medium Neutral Citation: Wakool Shire Council v Garrison Cattle Feeders Pty Ltd (No 2) [2011] NSWLEC 224 Hearing dates: 21, 22, 23 February 2011 Decision date: 30 November 2011 Before: Sheahan J Decision: The prosecutor has failed to establish a crucial element of the offence charged, and the matter is stood over for final orders, including as to costs. Catchwords: PROSECUTION: whether burial of waste in land means that the land is being used for the purpose of a waste facility, question of lawful authority to conduct a waste facility, are particular substances "waste", some materials found on site and others imported. Legislation Cited: Protection of the Environment Operations Act 1997 Protection of the Environment Operations (Waste) Regulation 2005 Wakool Local Environmental Plan 1992 Cases Cited: Blacktown City Council v Pace and Another [2002] NSWLEC 142; (2002) 121 LGERA 432 Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400 Director-General, Department of Environment and Climate Change v Jack & Bill Issa Pty Ltd (No. 5) [2009] NSWLEC 232: (2009) 172 LGERA 225 Environment Protection Authority v Fletcher [2001] NSWLEC 104, (2001) 114 LGERA 187 Environment Protection Authority v Hardt [2006] NSWLEC 438; (2006) 148 LGERA 61 Environment Protection Authority v HTT Huntley Heritage Pty Ltd [2003] NSWLEC 76; (2003) 125 LGERA 322 Environment Protection Authority v Shannongrove Pty Ltd [2010] NSWLEC 162; (2010) 176 LGERA 31 Gerondal v Eurobodalla Shire Council [2009] NSWLEC 160 Hardt v Environment Protection Authority [2007] NSWCCA 338; (2007) 156 LGERA 337 Owen v Willtara Construction Pty Ltd [1998] NSWLEC 116; (1998) 103 LGERA 137 Palos Verdes Estates Pty Ltd v Carbon (1991) 6 WAR 223, 72 LGRA 414 Wakool Shire Council v Garrison Cattle Feeders Pty Limited [2010] NSWLEC 199; (2010) 177 LGERA 282 Category: Principal judgment Parties: Wakool Shire Council (Prosecutor) Garrison Cattle Feeders Pty Ltd (Defendant) Representation: Mr M Seymour, Barrister (Prosecutor) Mr T Howard, Barrister (Defendant) Kell Moore (Prosecutor) Kells The Lawyers (Defendant) File Number(s): 50033 of 2010 Judgment Introduction 1The defendant company has maintained its plea of not guilty to a charge that, between 16 January 2008 and 10 November 2008, it: (a) used the land known as Lots 98, 99 and 100 in DP 756530 for the purpose of a waste facility without lawful authority , and (b) " stored, treated, processed, sorted, or disposed of ", on that land, " waste " comprising each of (1) general waste; (2) silage wrap; and (3) paunch "; and so committed an offence contrary to s 144 of the Protection of the Environment Operations Act 1997 (' POEO Act' ), 2Section 144 provides: (1) A person who is the owner or occupier of any land and who uses the land, or causes or permits the land to be used, as a waste facility without lawful authority is guilty of an offence. (2) In any proceedings for an offence under this section the defendant bears the onus of proving that there is lawful authority to use the land concerned as a waste facility. 3" Waste " is defined in the POEO Act as including: (a) any substance (whether solid, liquid or gaseous) that is discharged, emitted or deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment, or (b) any discarded, rejected, unwanted, surplus or abandoned substance, or (c) any otherwise discarded, rejected, unwanted, surplus or abandoned substance intended for sale or for recycling, processing, recovery or purification by a separate operation from that which produced the substance, or (d) any processed, recycled, re-used or recovered substance produced wholly or partly from waste that is applied to land, or used as fuel, but only in the circumstances prescribed by the regulations, or (e) any substance prescribed by the regulations to be waste. A substance is not precluded from being waste for the purposes of this Act merely because it is or may be processed, recycled, re-used or recovered. and waste facility means any premises used for the storage, treatment, processing, sorting or disposal of waste (except as provided by the regulations). 4Regulation 3B under the Protection of the Environment Operations (Waste) Regulation 2005 prescribes, for the purposes of par (d) of that statutory definition, the following circumstances: 3B Definition of 'waste' (1) For the purposes of paragraph (d) of the definition of waste in the Dictionary to the Act, the following circumstances are prescribed: (a) in relation to substances that are applied to land, the application to land by: (i) spraying, spreading or depositing on the land, or (ii) ploughing, injecting or mixing into the land, or (iii) filling, raising, reclaiming or contouring the land, (b) in relation to substances that are used as fuel, all circumstances. (2) Subclause (1) (a) does not apply where the substances concerned are either bulk agricultural crop materials or manure . 5In an earlier decision in the course of this prosecution ([2010] NSWLEC 199; (2010) 177 LGERA 282), handed down on 15 October 2010, following a hearing on 29 September 2010 on competing notices of motion, I required the prosecutor to reformulate its charge under s 144 in a more specific way than it had on 20 July 2010 when the summons was issued. 6As a direct consequence of that decision, the prosecutor amended its summons on 25 October 2010, electing to charge only one of the three formulations available on the terms of s 144(1), namely " use the land for the purpose of ", rather than " cause or permit the land to be used ", or any combination of the three formulations available in terms of the section, " in the alternative ". The prosecutor confirmed right to the very end of the hearing that it pressed the charge in terms of " use for the purpose of " (T p189, L45). 7The prosecuting Council was put on inquiry as a result of noticing a " mound ", during a routine inspection of another section of the subject land, on 29 October 2008. The evidence reveals prior relevant inquiries and inspections, dating back to 26 June 2007, including an inspection on 16 January 2008 . Aerial photography during 2008 is relied upon. Whether the material uncovered in or under the mound was brought onto the land or had been found on the land, it was nevertheless collected, and buried. The charge was brought after the mound was excavated on or about 10 November 2008 , hence the range of dates, 16 January to 10 November, 2008. 8The three lots of land specified in the charge are used by the defendant company as one lot , having been purchased by it in one parcel, on or about 31 December 2005, with title transferred to the company on 10 May 2006. It comprises some 1600 acres (T p157, L22), and is located off Tueloga Road in the Parish of Coonamit, north north-east of Swan Hill in the south-west of New South Wales, directly north of Murray Downs, and east of Speewa. Lot 99 is south of lots 98 and 100, and not directly involved in the charge. The Sources of the Evidence 9The prosecutor relied upon affidavits sworn by: Alan William Thomas , Compliance Officer of the Council, dated 26 May 2010 and 25 January 2011; Mark Graham Williams , Director of Development Services at the Council, dated 29 March 2010, and 22 October 2010; and Trevor John Thornton , an environmental auditor, and academic expert in environmental management of hazardous materials, dated 20 March 2010. He has distinguished relevant qualifications, has conducted a private consultancy since 1992, and has lectured at Deakin University in Victoria since 1993 (CV in Exhibit P3 ). He carried out an independent excavation of the subject land on 27 July 2009 for the purposes of preparing the expert report verified by his affidavit. 10Exhibit P2 is a folder containing many annexures/exhibits to those prosecution affidavits, and all three deponents gave oral evidence at the hearing. 11Exhibit P4 is a plan of the route followed on an inspection conducted on 29 October 2008, as per evidence given orally by Mr Thomas (T p78). 12Exhibit P5 is a location plan prepared by Mr Thomas and apparently faxed to Council's solicitors when Mr Thomas's affidavit was being prepared (T pp46-8, and 81). 13Exhibit P6 is a letter from the defendant's solicitors to the prosecutor's solicitors, dated 3 September 2010, seeking provision of various documents. The response to that letter was most unsatisfactory, and some relevant documents were produced by Council to its legal team, and then by Mr Seymour, counsel for the prosecutor, to the defence team, only during the first day of the hearing, while Mr Thomas was being cross-examined (T p35, L42-p37, L17). 14The defendant relied upon affidavits sworn by: Craig Stephen Hartshorn , the defendant's Feedlot/Pastoral Manager, dated 15 February 2011; and Eric Rosewarne , Chief Engineer with a company known as Ashton Pty Ltd (a company, related to the defendant, which owns and operates an abattoir in Swan Hill, Victoria), dated 18 February 2011. 15Mr Hartshorn also gave oral evidence. 16Exhibit G1 is a large bundle of photographs, most of which appear to have been taken by Williams (see T p 121-2, but c.f. pp57, and 77-8). Copies of some but not all were annexed to Williams's first affidavit. The whole bundle was tendered by Mr Howard after Mr Thomas was cross-examined about them, and all of them also appear, but without grid lines or points, on the CD in Exhibit G3 (T p184). 17Exhibit G2 is a note which was prepared by Mr Williams during a visit to the subject site on 10 November 2008. Particulars 18There are before the court, as there were at the earlier hearing, two letters dated 26 August 2010 ( Exhibit P1 ), one requesting and the other providing particulars of the charge, as originally pleaded in the summons. They have now been summarised in a table prepared by Mr Howard, and submitted to the court, with the prosecutor's approval, as an aide memoire . Mr Seymour pointed out that this request for particulars came after most of the prosecution evidence had been served. 19Counsel for the parties agreed that I could also consider again two affidavits read at the earlier hearing, to one of which, inter alia , those letters were annexed, but I am satisfied that I dealt with that evidence to the extent necessary, in coming to my earlier decision on the formulation of the charge. 20In par 1.1.2 of the defendant's request for particulars, the prosecutor was asked: If it is alleged that the Defendant used the Land for the purpose of a waste facility, please identify all of the facts and circumstances on which the prosecutor relies in so alleging. 21The prosecutor's reply confirmed the prosecutor's allegation that the defendant " used, or caused or permitted the land to be used as a waste facility " (using the full formulation in the section, rather than either any one component of it, or the formulation in the charge - emphasis mine). The prosecutor confirmed it would rely upon the following " facts ": (a) The presence of material including paunch, metal filings and scraps, car parts, silage wrap, and concrete rubble that would not ordinarily be expected to be generated from an agricultural use of the land and which is of a kind that is properly characterised as discarded, rejected, unwanted, surplus or abandoned material. (b) That this material was buried. (c) The admission recorded at [6] of the affidavit of Alan William Thomas to the effect that material was being taken from Garrison's Feedlot and an abattoir in Swan Hill and applied to the land. (d) The admission recorded at [13] of the affidavit of Alan William Thomas and [15] and [21] of the affidavit of Mark Graham Williams that what had been buried was 'rubbish' and 'waste'. (e) The lie of Mr Hartshorn recorded at [21] of the affidavit of Mark Graham Williams. ... The material was waste as defined under the Protection of the Environment Operations Act Dictionary as being any 'discarded, rejected, unwanted, surplus or abandoned substance'. The Prosecutor will rely on the facts identified above ... to show that the Defendant was storing, treating, processing and disposing of such material on the land. 22The prosecutor made clear it would and did not allege that the defendant " sorted waste on the land ". 23Mr Howard, counsel for the defendant, raised early in the hearing some concern about the particulars provided by the prosecutor. He says that the defendant came to court to answer a charge under sub-paragraph (b) of the statutory definition of waste, and not one under sub-paragraph (a) (see [3] above). He stated in his opening (T p5, L48-p6, L22 - emphasis mine): There is no dispute that the defendant buried some material in the nature of what the defendant will be submitting is general farm waste on the property. Inert material in the nature of what it described as rubbish . Your Honour will hear evidence that the defendant is a company which runs rural properties and it's [sic] associated companies have a business involving the use of a feed lot and an abattoir at Swan Hill. It has a number of rural properties, as your Honour would imagine, and it uses those rural properties for the purpose of grazing stock and also for cropping purposes to assist in the provision of feed for the stock at the feed lot. So hay, for example, grasses. Your Honour will hear evidence that the defendant purchased this land, ... a few years prior to the alleged offence. As incoming farmers and graziers do tend to do [it] undertook a cleanup of the property and buried some rubbish that it found in that process on the land. One of the material matters that my friend refers to or an issue will be whether when a grazier or farmer in the outer rural areas of New South Wales burries [sic] waste from the farm on the farm, whether that constitutes the use of the land as a waste facility, which is ... an issue in the case, as will the issue of whether development consent is required by farmer, graziers when they carry out such activity. Your Honour, there's no issue that that material is waste . It's accepted it is. 24Mr Seymour accepted (T p9) that he had not particularised, as part of the charge, anything with respect to sub-paragraph (a), but he did not accept that he had not alerted the defendant that the prosecutor might rely on it. He asserts that the prosecutor's expert evidence goes to that issue, and asked me to delay any ruling on that issue until all the evidence was in. 25Mr Seymour contends (T p138, LL35-39): It's not relevant to the charge to work out how much rubbish was there. If it's a single piece of plastic buried under the ground the charge can be sustained unless the submissions going to come from the defendant that this is de minimus (sic) in some technical way , ... 26As Mr Howard says in his closing submissions (par 7, omitting footnotes): The defendant company through its relevant officers has consistently admitted that it buried general farm waste in two pits on the Tueloga Rd property in carrying out a clean up of that property. On the other hand, the defendant company has consistently denied having imported any waste onto the land. 27However, on the other hand, he submitted orally (T p138, L44-p139, L25) that, as the charge asserts use of the subject land " for the purpose as a waste facility without lawful authority " (in terms of the requirement of a development consent), questions arise as to characterisation of a use, necessarily involving, a " commonsense approach " and " questions of fact and degree ". See Environment Protection Authority v Fletcher [2001] NSWLEC 104, (2001) 114 LGERA 187, where I found ([123]) that the defendant " undertook a very substantial landfill waste operation over a long period of time ". 28The prosecutor bears the onus, on the normal basis of " beyond reasonable doubt ", in respect of the elements of the offence, but, as s 144(2) provides, the defendant bears the onus of establishing " lawful authority " if the prosecutor asserts there is none (see T p227). 29Principal issues before the court include whether all of the allegedly offending material found is " waste ", what elements of it were " brought" to the land, whether " cast-off " farm materials/equipment and their disposal on-farm are ancillary to agriculture, whether the burial of " waste " in or under land constitutes the use of land as a " waste facility " or for the purpose of one, and/or whether burying is a separate " use " requiring development consent. 30While it has been agreed between the prosecutor and the defence that no particular licence (e.g. under the POEO Act ) is required in respect of any " treatment " of any of the buried material which might be " waste ", a development consent may be needed. 31Agricultural use and associated work does not require development consent. The prosecutor says that collecting material and burying it is no more part of an agricultural use than it would be part of permissible or approved residential use if buried in the backyard. It is properly seen as a separate use, and one for which, in the relevant zoning, consent would be required. "Paunch"? 32The charge specifically nominates " paunch " as one element of the " waste " allegedly " stored, treated, processed, sorted or disposed of " on the subject land. 33From the very beginning of the hearing there was debate about the nature of " paunch, " " paunching(s) ", " paunch content(s) ", and " paunch material(s) ", and whether any of those concepts fits within the statutory definitions of " waste ". 34During his opening (T p3, LL19-22), Mr Seymour described " paunch " as " this grey organic odorous material ... which on my more lay person's understanding is guts, is abattoir material, it's the viscera from animals ". Mr Howard said in his opening (T p6, LL 25-27): " It's not the viscera [but] ... the partially digested grass and grain ," which is " extracted from the paunch of the animal at the time of slaughter ", and is not waste . 35Mr Hartshorn distinguishes carefully between "paunch material " and " paunch contents " and deposed (pars 24-31, emphasis mine): 24. From my experience in working in abattoirs, both as a slaughterman and in my current role as a manager of the feedlot, I say that 'paunch material' is the stomach and stomach contents taken from an animal, usually sheep or cattle when slaughtered. 25. 'Paunch contents' is the undigested grain, hay and grass, which is purposefully extracted from the stomach of an animal after it is slaughtered. This is a resource material which after being extracted from the stomach is pressed to extract any liquids and subsequently dried and stored. This material is then mixed with manure or compost to form a suitable fertiliser to apply for pasture improvement. 26. When an animal is slaughtered neither the stomach nor the contents of the stomach are disposed of as waste . They have always been used as a product. Up until in or around 2002, all of the paunch material, the stomach and its contents , was transported by Swan Hill Abattoirs off site to a rendering plant operated by Pridham [Pty Ltd]. ... 28. Not all of the paunch material is processed at the rendering plant. 29. Prior to being sent to the rendering plant, the paunch contents are now extracted and only the paunch itself is sent to the rendering plant . As I say, the paunch contents, are then pressed to extract any liquids and subsequently dried and stored and then used as a mixture with manure or compost to form fertiliser. 30. The process of extraction of the paunch contents was developed for the specific purpose of utilising the paunch contents to mix with manure or compost to form a fertiliser . 31. After the paunch contents are extracted at the abattoirs, the actual stomachs are then sent to the rendering plant for processing . 36In his oral evidence, Hartshorn confirmed his experience with the processing of paunch (T p173, L14-p174, L46), and his view that paunch material is " the actual guts, the viscera " (T p178, LL30-32), is processed separately from its contents , in the rendering plant, and is not " waste " (T p174, L43-p175, L8). Only content, and not material, is taken to the grazing and cropping properties for use in making fertiliser. 37Mr Rosewarne is not so careful in distinguishing the terms. He deposed (pars 10-18, emphasis mine): 10. The contents of the stomachs of the animals, also known as paunch contents, is the partially digested material at the time of processing . 11. The paunch contents, being the undigested grain, hay and grass contained in the animal's stomach at the time that the animal is slaughtered. 12. This paunch material is processed and either sent to Garrison to be used as fertiliser on feedlots or sold to third parties. 13. The paunch material is fed through Fan Press Screw Separation (" PSS "), a machine which extracts the liquid from the paunch material leaving a dried paunch content which is mixed with manure and/or compost to form an organic fertiliser. 14. Following the upgrade in 2002, the abattoir was also upgraded with the installation of 2 PSS, the sole function of which is to press and dewater the paunch contents which is subsequently utilised for mixing with compost and manure for fertiliser. The cost of each machine is approximately $50,000 - $70, 000. 15. Investment was made in the machinery as the paunch contents are considered to be a valuable asset , being able to be used as a constituent organic fertiliser. 16. Almost all of the paunch contents extracted at the abattoir is utilised by Ashton's related Body Corporate, Garrison, as part of its cropping and grazing operations. 17. I am aware, through my position as chief engineer, that in the rare circumstance that the paunch content is not utilised completely by Garrison, it is mixed with manurer [sic] and sold to local farmers as fertiliser at a rate of $24 to $30 per tonne 18. Paunch contents are never disposed of as waste by Ashton and are considered to be a valuable asset of the compan y . Ashton processes approximately 500 tonne per year of this prod uct, all of which is used by Garrison or s old . I have never known Ashton to dispose or dump any of the p aunch content as waste . 38The expert witness, Dr Thornton, considered (in par 15(d) of his affidavit/report) that " paunch waste material " found on his inspection was " manure ". 39The court concludes that the " paunch " is the stomach of the animal, which is comprised of " material" which holds " contents ", largely partly digested grass and grain. The court accepts the defence evidence which explains; (1) that " paunch contents " are a by-product of, rather than " waste " from, the slaughter process; (2) that they are cut out of the paunch material as the carcass is being processed; (3) that they are regarded as valuable by both the abattoir and grazing interests that wish to use them in fertiliser to improve the soils in their paddocks; (4) that they are stored until required to be transferred to those paddocks; and (5) that they are then mixed with manure and compost, and spread on the pasture as fertiliser. The Prosecutor's Case Alan William Thomas 40Mr Thomas has been the compliance officer at the Council since 2 January 2002. He wears a Council uniform, carries the relevant authorities to enter property, etc, and investigates complaints made by local residents. 41He swore two affidavits in these proceedings well after relevant events (26 May 2010 and 25 January 2011), and was closely cross-examined on his recording and reporting practices, and on his subsequent reconstruction of events and observations for his affidavits (T p34-45). 42On 25 June 2007 he received a complaint from a lady identifying herself as Mrs Pam Martin of Appletree Farm. He identified the property to which she referred as the subject land, owned by the defendant. He visited the property at 9.15am the next day, and located what he describes as the " initial site " where material had been deposited. The location of that initial site is identified on the map/plan annexed to his affidavit (tab 1). 43He travelled again to that site, on 9 January 2008, with a Council environmental officer, Sarah Swain, and again on 16 January 2008, with Council's Senior Health and Building Surveyor, Geoff Barker. He found that the access gate he had previously used was padlocked, so he travelled a further 500m to a second gate, and managed to access the initial site. 44On 29 October 2008 he attended the property with Nathan Espie, Council's Health and Building Inspector. He already knew Craig Hartshorn as the manager of the owner's feedlot. On 29 October 2008 Hartshorn arrived to unlock the gate at 10.30am. They travelled to the initial site. As they approached he saw disturbed earth east of the track they were following. That earth was not visible on the earlier inspection. It appeared to him as if " three large pits " had been dug and filled in. He estimated them to be 3m wide x 30m long (par 12). 45The soil looked to have been recently disturbed, and the top of the soil covering the pits was approximately 1m above the adjoining natural land level. Truck tracks were evident in the disturbed earth and he also observed building material such as bricks, timber and small amounts of old insulation and plastic. 46He marked the pits' location as 'B' on the plan, but subsequent evidence raised serious doubts about that marked location, to the effect that location 'B' is actually within a different lot from the pits. His answers during cross-examination concluded that the burial pits were actually on lot 100, not lot 98 (T pp47 and 51, c.f. Exhibit P5 and tab 1 to his first affidavit). The affidavit evidence also confuses where the gates to the property are located, namely whether they are at its northern or southern end. Indeed, during his cross-examination, Mr Thomas conceded many defects in his affidavit evidence about location of gates, directions of travel on the subject land, the precise location of the pits, trenches, etc. (T pp49-56). 47Hartshorn told Thomas that the pits contained matter " cleaned up around the area - some old concrete and timber ". When asked about the pits being very large, Hartshorn said " there was a lot of rubbish ". He expressed no objection to Council opening the pits to satisfy itself there was no contaminated material. 48Thomas reported that inspection to Williams and the Council's General Manager, Chris Chapman, and, on 5 November 2008, Chapman advised the owner of Council's intention to inspect the property, and examine, and perhaps sample, the contents of " two burial pits ". A barely legible copy of the letter is annexed to Thomas's affidavit (tab 2). The inspection was intended for 12 noon on Monday 10 November 2008. 49Around 12 noon on 10 November, Thomas attended the property in company with Williams, and Frank Robinson of the Department of Environment and Climate Change ('DECC') who has not given any evidence in this matter and could not be located. Also in attendance was Mark Buckley, a plant operator who had " bought [sic] a backhoe owned by Council to the property ". They met Hartshorn at the gate and travelled to the site of the burial pits. Thomas observed Buckley operating a backhoe to dig two trenches, which he says were parallel to each other at right angles to the pits. These trenches extended down to the depth of the backhoe boom, within the burial pits, and to a depth of approximately half a metre in areas between the pits. Thomas deposed (par 16) that the trenches were dug from east to west, but in cross-examination he conceded that it was the reverse (T pp63-65). The second trench was dug approximately 10m south of the first. 50Full particulars of the inspection are contained in par 16 of Thomas's first affidavit, and he mentions " the first, second and third burial pits ". In cross-examination, Mr Thomas conceded the possibility that the defendant dug only two pits, and that the third one inspected may have been dug by a previous owner (T p34, LL25-27). 51Thomas deposes (par 17) to seeing " old building materials such as car and tractor parts, old tyres, concrete rubble and pieces of scrap metal [sic?]" in the first pit. In the second, " the trenches and excavated material contained large amounts of silage, wrapping and paunching material". In the third, the trenches and excavated material " also contained large amounts of silage wrapping and paunching material ". Mr Thomas denied (T p75, LL36-39) exaggerating that evidence. 52In his second affidavit (25 January 2011), Mr Thomas sought to clarify some of the contents of his first affidavit, largely the confusion about gates, etc, and the precise location of the burial pits. He testified that the second affidavit arose out of a " briefing " with Council's lawyers, in which he made comments about the depth of the trenches (T p48, LL25-39). 53He deposes (second affidavit, par 4) that the trenches were dug on 10 November 2008 to the depth of the backhoe boom, but it appeared to him there was still material at that depth out of reach of the boom. He " saw the rubbish material including paunch and sisal wrapping at the bottom of the trenches that were dug ". He also saw several metal hooks like he has seen in butcher shops (par 5). On no inspection did he see any animals present (par 6), but he observed evidence of the land having been cropped (T p76, LL32-34). He saw an old bus located near the initial site and to his right of that bus, an old galvanised shed. The only other structure he saw was near the entry gate and it looked like a machinery shed or a hay storage shed (par 6). 54During cross-examination, he was taken to the photographs in Exhibits G1 and G3, and questioned very closely about what they showed (T pp56-73). 55Mr Thomas conceded that there was no apparent change to the site between the inspection on 29 October and the commencement of excavation on 10 November 2008. The photographs show one mound, 30m long, excavated to uncover three burial pits, through which three trenches were then dug west-to-east at right angles to them. Some of the photographs show " not much waste " (T p66, LL37-38), but elements of it are clearly depicted, including paunch, silage wrap, and various metal, concrete, etc, and Mr Thomas insisted " that there was a lot of material buried in those pits " including " large amounts of silage wrap " (T p75, L44 and p76, L18). There were no old tyres shown in the photos (T p75, LL41-42). 56After the excavation/inspection on 10 November 2008 the Council re-buried and re-covered the material/pits without removing any items (T p74), but it was not Mr Thomas's " call " as to what, if any, action might be taken by Council, including a referral of the matter to the Environment Protection Authority ('EPA') (T pp74-75). Mark Graham Williams 57Mr Williams has been Director of Development Services at the Council since 18 February 2008. He was manager of Health and Building Services between September 2004 and May 2006, and then left for a short period to become Director of Planning and Environmental Services at Torres Shire Council. He swore two affidavits in these proceedings (29 March and 22 October 2010), and was also cross-examined. 58He annexed to his first affidavit title searches of the subject land, and an ASIC search which shows that the defendant company changed its name from R H Woodward & Co Pty Ltd on 24 July 1998. Robert Henry Woodward (b. 1943) holds 85 ordinary shares, and that Robert Jack Woodward (b. 1969), Vanessa Jan Maria Woodward, and Daniel John Woodward each hold five shares in the company. The two Robert Woodwards are shown as its current directors, Robert Henry having been appointed in 1982, and Robert Jack in 1996, and Robert Henry is the company secretary. 59Williams deposes to meeting " Robert Woodward " (he does not specify which one), who was known to him to be a director of the company which owned the Garrison feedlot on the Swan Hill to Balranald Road at Murray Downs, at 2pm on 29 February 2008, in company with Robinson and Swain. He says he requested Woodward to lodge a development application ('DA') for what Council then believed was " composting works ". Woodward said he intended to do so, but would instruct a consultant firm to prepare it. Williams told him that works cannot proceed without appropriate approvals, and that this needed to be done straight away. 60No immediate action was taken by the Council as it was expected a DA would be lodged. When a later review, in about September 2008, indicated that no DA had been lodged, Williams recommenced his inquiries, and wrote a letter to " Robert Woodward " on 17 September 2008 (tab 3), threatening proceedings. 61In his second affidavit he makes clear that as at that letter being sent, and also as at the first affidavit being sworn (29 March 2010), he could find no record of any applications or approvals in Council files for use of the property for burial of compost or waste. 62Council received no response to the September 2008 letter, and wrote again on 24 October 2008 (tab 4), giving notice of intent to enter the subject land on 29 October 2008 at approximately 10.30am. That inspection was carried out by Thomas and Espie, and they reported back to Williams. 63On 30 October 2008, Williams had a telephone conversation with Hartshorn, during which he asked him the purpose of the waste pits that the Council staff had discovered. Hartshorn replied that " they had been used to bury rubbish from around the farm such as steel, concrete and timber ". Williams specifically asked him about abattoir waste transported to the site being placed in the pits, and Hartshorn replied, " Not that I am aware of ". When asked if anything was buried in the pits that had been transported to the site from elsewhere, Hartshorn said " No ". He undertook to Williams that he would chase up the consultant regarding the lodgement of a DA for the compost works. 64The investigation continued and, after he was briefed by Thomas and Espie, Williams sent the company the letter of 5 November 2008 (tab 5), to which Mr Thomas also referred (see [48] above), notifying it of the inspection proposed to be held 10 November 2008, when Council staff and an officer of DECC would uncover and examine the contents of two burial pits and take samples. 65Williams attended on 10 November 2008 with Thomas, Robson and Buckley. Hartshorn met them " at the front gate " and unlocked " a gate " for them. Williams annexes (tab 6) the same map/plan that Thomas annexed, but, during his oral evidence, Williams re-marked the location of the three pits, showing them on lot 100, rather than on lot 98. He told the court that it was coincidental that he and Thomas had made the same error in marking the pits' location, and that he had realised his error only during the night of 21 February 2011, when he was preparing to give his oral evidence. He had not discussed it with either Thomas or Council's lawyers, and he denied " collaborating " with Thomas in preparing their affidavits. 66During the inspection on 10 November 2008, Williams instructed Buckley to dig trenches, and he annexes a plan (tab 7), which he says shows their approximate location in relation to the pits. That plan also had the pits in the wrong position. He deposes (par 19) that " two trenches were dug in straight lines to a depth of the backhoe boom, approximately 4.5 metres ". 67Williams annexes 43 photographs which show trenches dug traverse to burial pits, and he describes (in par 20) what materials they show, including metal posts, hooks, etc. (photos 2, 5, 7, 10, and 15), concrete (photo 17), electric wiring etc. (11 and 13), black polyurethane (6 and 8), plastic, fibreglass and wood (9 and 12), silage wrap (21-29, 31, and 38), and paunch contents, manure, etc (16, 18, 33, 35, 37, and 39). The darker organic material pictured in photo 16 is thought to be manure, and the lighter-coloured material is thought to be the paunch contents. 68During the inspection, Williams spoke to Hartshorn again (par 21). Hartshorn said only " farm materials and general farm waste " were buried in the pits, and that there was, to his knowledge, no abattoir waste. It is par 21 of this affidavit which the prosecutor alleged (in particular (e) in par [21] above) recorded " the lie of Mr Hartshorn ", but, in his closing submissions, Mr Seymour, declined to press that allegation against Hartshorn (T p233, LL4-5). 69When confronted by the discovery of what Williams believed to be paunchings, Hartshorn said that he did not wish to make any further comments (par 22). 70Williams deposes (in pars 23-24): The inspection of the trenches dug by Buckley revealed the existence in the Burial Pits of assorted farming and building waste including, tractor parts, plastic, scrap metal and silage wrap. I also observed paunchings that produced an extremely offensive odour upon being uncovered by the Council backhoe. This material was at a depth of between 1 and 2 metres below ground level and had been covered with what appeared to be clean earth fill. I paced out the dimensions of the Burial Pits which were approximately 30 metres in length and 3 metres in width. Based upon the limit of Council's back hoe the depth of the Burial Pits was at least 4.5 metres. Based upon my calculations of the 3 pits there is a total volume of at least 810 cubic metres of buried material. 71He annexed (tab 9) an aerial photograph taken by him on 3 May 2008. The burial pits are not visible, nor is any disturbance of the ground area in their location. He also annexed (par 27 and tab 10) an aerial photograph that he believes was taken by Barker on 28 November 2008, and it shows " earthworks and disturbed soil in the location of the Burial Pits ". 72Williams made and kept a hand-written note in a notebook ( Exhibit G2), regarding the November 2008 site visit. In the note he says that Craig Hartshorn " did not want to comment on contents of the pit, but did confirm there was (sic) 2 pits ". The note goes on to say that one pit contained " general farm waste, steel, concrete piping, timber, some abattoir hooks ", that the second pit contained " silage wrap ", and that there was a third pit in two sections, with strong smelling paunch material of a 1m thick layer buried 2.5m deep. There is a diagram of the scene on the second page of the exhibit, showing Council trenches dug in the mound/overburden, and the location of " waste " (T pp114-116). 73Williams told the court the notes in Exhibit G2 were the only internal documentation he had kept. He prepared no written statements, reports or memoranda. When preparing to swear his primary affidavit he says he himself typed up and sent an email or fax to the Council solicitors, based on the notes, the photos and his own recollection. He did not rely on Thomas. He could not explain to the court why that email or fax was not produced by the solicitors in response to the defendant's calls for documents ( Exhibit P6 ), and when he received " the final document " (presumably his first affidavit) he did not keep the email/fax (T pp101-106). 74Williams confirmed in his oral evidence the note he made in Exhibit G2 , (T p108, LL10-35), that Hartshorn told him, on site, " prior to us uncovering them ", that there were two pits , but he could not explain why he omitted that evidence from his affidavit (T p111). 75In further cross-examination on the note, especially the diagram, Williams confirmed the dimensions of trenches, pits, and elements of waste (T pp114-115). 76As noted above ([70]), he paced out the dimensions of the pits, corroborated those measurements by referencing the photographs (T pp116-117), and calculated a total volume of 810m of buried material. That calculation was 30m (length of pit) x 3m (width of pit) x 4.5m (depth of pit) x 2 (2 pits not 3, but both or all only partly excavated) = 810m , but did not include earth/dirt placed over the top of the introduced materials (T pp117 - 118). This is hardly a scientific, let alone probative, estimate of the volume, weight or proportions of material buried/excavated. 77Williams's second affidavit contains the land use table for the General Rural Zone 1A under the Wakool Local Environmental Plan 1992. A DA and an approval would be required for the deposit of waste materials into the property as the use is neither permissible without consent, nor prohibited. 78At the time of swearing his second affidavit (22 October 2010), Williams again reviewed the Council files and found no approval ([61] above). However, he noted (in par 5 of that affidavit) that the Western Regional Planning Panel had consented to a DA for a composting pad and effluent holding pond on lot 100 on 11 May 2010. 79Williams's second affidavit annexes a notice he drafted for issue by Council's General Manager, Chris Chapman, on 7 May 2009 , under s 192 of the POEO Act, seeking information/records, and a response from the defendant dated 3 June 2009 . The notice was sent to the defendant, marked for the attention of Robert Henry Woodward " or other proper officer ". 80The questions posed by the notice covered some 4.5 pages, but the answers provided were concise. 81The company admitted owning and occupying the property, and using it for " cropping and grazing - seasons permitting ". No other person or party had been authorised to use the property during the previous five years. Swan Hill Abattoirs is owned by Ashton Pty Ltd, which is a related entity of the defendant company, and the defendant itself is the owner and operator of a feedlot on Moulamein Road, Murray Downs, NSW, 8km north of Swan Hill. 82In response to questions (in section 9 of the notice) about a conversation between Thomas and a truck driver on 26 June 2007, the company advised that " no one reported this alleged event to management ". 83The notice posed a series of questions (in sections 10 and 11) about a spill from a vehicle travelling on Stoney Crossing Road on 7 January 2008. It noted that Council officers were at the scene with " Brad Woodward ", who assisted in cleaning waste from the road. The company advised in response that it did not have any weighbridge documentation or records of internal truck movements or the driver, that it owned the 10-tonne truck, that it carried " compost material for fertilising, [which it collected] from Garrison compost area " and took to the Tueloga Road property for stockpiling in readiness for spreading on cropping areas, and that the delivery was authorised by Hartshorn verbally. " A Garrison employee received the call about the spill and acted immediately, taking a frontend loader to the site ". Brad Woodward and Craig Hartshorn were involved in the clean-up which took 1.5hours, and involved use of the front-end loader. The contents of the spill were deposited, after the clean-up, at the Tueloga Road property. There was no documentation available relating to the disposal of the spilled waste. 84Question 12 in the notice asked if waste had been transported to the subject site, and the company answered " No ". 85In answer to a question (in section13) about its response to the letter of 17 September 2008, the company said that " due to slow progress of the application internally ", FSA Consulting had been engaged to complete it. " Fertiliser was spread (as previously planned) on cropping areas ". 86In response to questions (in section14) regarding the inspection on 29 October 2008, the company said that the pit " was dug for cleanup of junk inherited with the property ". No approval was sought, and the dates on which the work was carried out were unknown. 87In response to questions (in section15) regarding the inspection on 10 November 2008, the company said that the dates of the digging of the pits were unknown, but " one pit was existing ". The responsibility for the digging of pits lay with Hartshorn. The dimensions of the two pits were 20m long x 3m wide x 2m deep. The date on which the pits were filled or covered was also unknown. The material or materials used to fill the pits was " rubbish on the property " and the source of the material was rubbish on the property. There were no documents relating to obtaining the material used to fill the pits. 88In further response to the questions in the notice, the company produced some photographs, an irrigation plan, and a DA. No environmental assessments or surveys had been prepared. 89Other attachments to the second affidavit are a copy of a plan showing the pits on lot 100 and fertiliser storage on lot 99, several emails (dated 3 November 2008, 30 October 2008, and 4 June 2009) concerning Council and EPA requirements, and a form 'A' dated 10 October 2008 requesting the Director General's requirements for the composting site to be located on lot 99. The inference to be drawn from the affidavit (par 6) is that these documents had been attached to the company's response to the s 192 notice. 90In cross-examination, Williams admitted that he neither made nor directed any inquiries (e.g. of the former owner of the subject land), when told by the company, in answer to the statutory notice, that it claimed a third pit was " existing " at the time it dug two more. 91Williams also confirmed (T p119, LL26-45) that it was he who directed Council staff to re-bury and re-cover the material uncovered in the pits, without removing any or directing the defendant to do so. 92When informed that the EPA considered the incident a matter for Council, and was itself taking no action, Council's solicitors recommended the engagement of Dr Thornton in mid 2009, and, in October 2009, Williams recommended to the General Manager, following discussions with Thomas and Espie, that this prosecution be commenced (T pp100, and 119-121) 93Towards the end of his cross-examination, Mr Howard took Williams to the large bundle of photographs, including those reproduced in his first affidavit. He accepted the correlation the defence lawyers had completed as between the two groups of photographs (T pp122-5). During that exercise he identified a few photos in the bundle that he had not taken himself, and opined that Mr Thomas may have taken them prior to 10 November 2008, before rain had fallen on the subject land (T pp125-6). 94Williams conceded (T pp128, 134, and 139) that the first trench dug by the prosecutor produced no buried waste at all. However, Mr Howard very fairly put to him various items of " waste " depicted in the photos in various locations on the excavated area. Generally, " as items emerged ", including " paunch ", they were photographed (T pp129-136 and 139-141, and see items listed in [67] above). The " farm type waste " was found in the southern-most trench (T p128 L50-p129 L5). 95In respect of " paunch " material the following exchanges occurred during Mr Howard's cross-examination (T p136 L18-p137 L50): Q. I'd suggest to you Mr Williams that the amount of paunch material that was dug up was minimal in proportion to the amount of earth that was dug out of the pits if you include in that the trench where you found nothing, do you agree with that proposition? A. No, I wouldn't say it was minimal, no. Q. You'd certainly agree that there was a whole lot more earth dug up than there was paunch material? A. From the photos you can see there was you know a depth of soil over the top with a depth of paunch so, yeah, I'd say there's probably roughly 50/50 in the trench. Q. When you say 50/50 in the trench you only found it in two discrete locations didn't you? A. Yes, you can see from - which one was it - in image 146 you can see that that's, we're going across the trench so as we dissected the trenches you know in a north location, in a south location, you know without digging up the whole length of the trench, we would assume that the paunch at one end of the trench and paunch at one end of the trench there would be paunch all the way, the length of that. Q. That's just an assumption isn't it? ... A. Yes. Q. And insofar as you dug up paunch matter you would accept that it was found in two discrete locations at a strata of a metre? A. Roughly I think yes. Q. And so you would accept of course that the amount of paunch material that was dug up in comparison with the earth dug up out of those trenches is very small? A. Well it's a metre of over burden and a metre of paunch so you know it's roughly fifty-fifty as I said before. ... Q. Mr Williams you gave evidence didn't you in your affidavit that the pits were 4.5, that two trenches were dug 4.5 metres? A. Yes, you can see that in image 145. Q. You've also given in evidence that the layer of paunch in two discrete locations was between 1.5 and 2.5, a one metre stratum-- A. Yes, yes. Q. --of paunch material? A. Yes. Q. If you look back at your volumetric estimates, surely you'd have to accept that the, if you were talking about a cubic metre, 810 cubic metres been pulled out of those trenches that the amount of the volume of paunch material must be a very small proportion of that volume? A. Not a small proportion, ... ... Q. But you have given evidence haven't you that you dug at one trench where you didn't find any waste? A. That's correct. Q. And is that a trench that's not shown on your diagram? A. The start of it is, yes that's correct. So we didn't find, yeah I've only noted where the waste was I guess is the answer to the question. Trevor John Thornton 96Dr Thornton deposes to an inspection he carried out on 27 July 2009, in company with Espie and Barker, for the purpose of preparation of his report. Photographs were taken on that occasion, and appear behind the appropriate tabs in his section of Exhibit P 2. 97In essence, Dr Thornton's findings were that an area of ground of approximately 900m 2 was disturbed and had no vegetation cover. Six trenches were dug into this disturbed area on his instructions. (He annexes a plan). Of the six, two contained what appeared to be " paunch waste ". Five soil samples were collected and three were analysed. (He attached a report of the analysis results). " The soil samples did not indicate any issues of concern in relation to contaminants ". As there was a clay base at the bottom of the deepest trenches, he concluded that groundwater would not be contaminated such that there would be migration of any contaminants to the creek. 98His affidavit went on to describe the site profile in some detail - a fenced pastured area, with cattle in the adjoining paddock, a creek approximately 500m from the site, some trees growing approximately 200m away, and some farm buildings approximately 500m away. He opined that " none of these buildings would be expected to generate most of the type of waste materials located in the site ", and that much of the waste must have been " introduced ". Some organic material (e.g. branches and leaves) was deposited in what appeared to be a composting operation approximately 500m away, but the site itself was cleared of any vegetation. 99There were areas of raised soil which did not match any land profile in this paddock or any adjoining paddock, and he opined (par 10) that: It appears that some disturbance of the land and/or deposition of more soil has occurred to raise the profile of the soil above what is illustrated ... the site had waste materials such as silage wrap, timber scraps and rubber scraps located on the surface and/or partially buried ... Whilst this material could have been generated on the farm, it was not expected to be located on the top of the site as it would pose a hazard to any livestock feeding in the area . 100In his oral evidence (T p86, LL23-24) Dr Thornton indicated that when he was shown the general " mound " area, " you could identify what appeared to be trenches that had been filled in. So I requested them to excavate in specific spots ". 101In two of the six trenches he arranged to be dug (nos 1 and 3), there were no obvious waste materials deposited, but his findings in regard to the other four were as follows (par 11): Trench No. 2 - Contained waste materials such as wire, building materials (timber), a metal safety floor plate, silage wrap, a wool like material, concrete rubble, a car mirror, a rubber that appeared to come from freezer pipe insulation. Trench No. 4 - A paunch waste like material. This was obviously organic in appearance and was very odorous. Trench No. 5 - No obvious waste materials deposited within this trench. However, some of the soil did appear to be of a different texture and had a faecal smell. It could not be ascertained if this was paunch waste that had decomposed or was soil imported from off-site. Trench No. 6 - Steel pole and concrete, silage wrap, wire, plastic and metal pipe, bones and wool like material. 102He annexed photographs of the trench contents, and opined (par 11), somewhat controversially: Most of these materials did not appear to be the type that would be generated on the property given the buildings that were located nearby. In addition there were organic materials (branches, leaves) that had been deposited for what appeared to be composting operations located approximately 500 metres from the site. It could not be determined if this organic material was imported from off-site or from on-site vegetation . 103When tested on that opinion, by Mr Howard in cross-examination, Thornton gave the following evidence (T p86, L40-p87, L5, then LL11-12): Q. I see, based upon what you saw in the buildings around, is that right? A. Yes. Q. You hadn't make any inquiry, had you, as to what structures had been on the property historically, is that right? A. No, no. Q. Is it fair to say also that you didn't make any inquiry about the way in which the property had been used by the previous owner. A. Correct. Q. So it's fair to say, isn't it, that in the absence of that sort of inquiry you wouldn't be able to tell his Honour with any confidence that the items that you've seen on the site, and I'll exclude for the purpose of this question the paunch material, apart from the paunch material, you wouldn't suggest that his Honour could conclude confidently that those items didn't come from the site. ... A. Sorry, that's what I've said in the affidavit. That I couldn't with all confidence say it absolutely did not come from the property. 104In his closing submissions (T p190), Mr Seymour conceded that he could not establish beyond reasonable doubt that most of the buried material would not have been generated by/on the subject land. 105In par 13 of his affidavit/report, he opined : As most of the materials found in the site were of an inert nature, any adverse impacts to the actual environment (land or water) from these materials (land or water) would be negligible. The paunch waste material does not have the potential through the decomposition phase to enrich the soil with nitrogen, phosphorous and potentially other elements. Depending on the land use, this will in all probability not present a problem in the short to long term. There is potential for ground water and/or surface water to be contaminated with nitrogen/phosphorous and other issues such as increased Biological Oxygen Demand [but] the nearest surface water was over 500 metres away and therefore given the soil type, it is unlikely that any of the paunch waste decomposition products would migrate to this water course. ... The main issue would be any farm or native animals grazing at the site and ingesting any of the inert materials and particularly the silage wrap. This could cause significant harm or even death if lodged within the alimentary tracts of these animals . 106In par 14 (the first of two pars 14) of his affidavit/report, he opined that: ... the paunch waste and solid inert wastes found in the trenches dug at the site were introduced on to the land and do have the potential to cause changes in the land through the decomposition and release of nutrients such as nitrogen. The inert wastes, particularly those found at the top of the site, do have the potential to cause harm to animals - be they cattle or livestock, or native fauna. Due to the location of the site and the soil type, I do not believe that there is or there is potential for water pollution to occur from the deposition of the waste materials into the site. 107He noted, in his conclusion (par 15), that there was among the material no pesticide or hazardous agricultural or crop waste and " no biosolids or any other identifiable substances ", but that there was " manure being the paunch waste material ", and " virgin excavated material of unknown origin ". The Defence Case 108The affidavits of Messrs Hartshorn and Rosewarne explain the close working relationship between the defendant company and its related entity, Ashton Pty Ltd, which owns and operates Swan Hill Abattoirs. Only Mr Hartshorn was required for cross-examination. 109Hartshorn , deposed that he is currently employed as the Feedlot/Pastoral Manager of the defendant company, having worked for Robert Woodward Snr and companies under his control since around 1998-1999. He grew up on a dairy farm near Swan Hill, and has worked in the pastoral and/or abattoir industries since school days. 110He became the manager of the Garrison feedlot in Murray Downs in about 2004. The job initially involved grain feeding some 5000 head of cattle and paddock management, but the role continued to expand and by 2006 he was managing stock not only at the feedlot but at " the twenty properties owned by Garrison, undertaking drafting, mustering, drenching and weighing of stock ". 111In 2006 his role was changed to its current specification as Feedlot and Pastoral Manager, and in that role he is responsible for (par 10) : (a) the management of the twenty properties owned by Garrison, which range in size from 10 acres to 110,000 acres; (b) the direct supervision of approximately 22 people; (c) the plant and equipment related to these properties which includes feed truck, front end loaders, graders and tractors; and (d) the livestock on the properties, which averages approximately 40,000 head of sheep, 3,000 breeding cows as well as the approximately 25,000 feedlot cattle which are processed every year. 112The properties he manages are spread over 1300km from south-west Queensland to Skipton in Victoria and Lucindale in South Australia, all west of the Great Dividing Range (T p154, L38-p155, L1). He speaks regularly with Robert Woodward Snr in doing his job (T pp171-172). 113Rosewarne has been Chief Engineer with Ashton for about four years and is familiar with the operations of both companies. 114The lands under Hartshorn's management are used for both cropping and grazing. Cropping uses are principally hay, barley and wheat. Harvested crops are utilised to feed the animals at both the grazing properties and the feedlot, and, following the harvest, sheep and cattle are usually run on the properties to graze the stubble. Stock is then moved to the feedlot for grain feeding for an average of 80 days before processing at the Swan Hill Abattoirs. 115Hartshorn deposes that as part of its operating strategy to reduce overheads Garrison has attempted to utilise the properties for cropping to produce hay and grain as well as utilising products left over from cropping and animal products that can be used for fertiliser. Garrison is not completely self-sufficient and is still required to purchase grain and hay for feed as well as chemical fertiliser for cropping operations. 116The properties used for cropping produce on average 2000 tonnes of hay per year. A further 1000 tonnes is purchased from local farmers. Only about 10% of the grain required is obtained from the cropping properties, the remainder being bought from local farmers. 117Hartshorn further deposes (pars 22-23): 22. Manure is obtained from the feedlot pens. The pens are cleaned on a regular basis at which time the manure produced from the animals is either: (a) carted to the Butlers compost facility; or (b) carted directly to the properties for spreading as fertiliser. 23. The feedlot produces some 2,000 to 5,000 tonnes of manure each year. 118Until 2002 paunch material from Swan Hill Abattoirs was transported offsite to a rendering plant operated by Pridham. The abattoirs were upgraded in around 2002, at a cost of around $10M, and a rendering plant was built on site. Since then abattoir bi-products are no longer sent to Pridham, but, by the same token, not all paunch materials are processed at that rendering plant: Rosewarne deposes (par 9): Following the upgrade, there is, minimal if any wastage from the slaughter process, with any material not processed as a meat product sent to the rendering plant for processing. The rendering plant produces ovine and meat meal, three grades of tallow, blood meal and concentrated gall . Hartshorn notes (in pars 29-31): 29. Prior to being sent to the rendering plant, the paunch contents are now extracted and only the paunch itself is sent to the rendering plant . As I say, the paunch contents, are then pressed to extract any liquids and subsequently dried and stored and then used as a mixture with manure or compost to form fertiliser. 30. The process of extraction of the paunch contents was developed for the specific purpose of utilising the paunch contents to mix with manure or compost to form a fertiliser . 31. After the paunch contents are extracted at the abattoirs, the actual stomachs are then sent to the rendering plant for processing . 119Hartshorn says (par 39) that the manure, paunch contents, and compost are used as part of Garrison cropping activities. In the event that there is any excess material of this nature, which does not occur often, it is sold to farmers in the area. 120For approximately five years Garrison has operated a composting facility at a property known as " Butlers ", approximately 1 km from the feedlot. A new composting facility is planned for Lot 100 of the subject lands, having already been granted a licence by the EPA (par 35, and T p144, LL36-37). 121Hartshorn deposes (par 36) that " at no time prior to the swearing of this affidavit or currently is [sic] the land located at lots 98, 99 and 100 Tueloga Rd been used for composting or has composting occurred on this land ", and (pars 37-38) that the products used to produce fertiliser, namely manure, paunch content, and compost, are all valuable to Garrison. By using its own organic product this chemical fertiliser is used in the production of crops keeping costs down. The organic fertiliser helps improve the soil profile on the properties. The ingredients of the fertiliser are transported to the properties on an " as needed " basis, and then mixed and spread as organic fertiliser, usually in the ratio of 90% of manure and compost to 10% paunch contents (par 40). 122It is Hartshorn's responsibility, with the help of an agronomist, to make the decision as to what fertiliser is required to be taken to the properties owned and operated by Garrison. He usually inspects the property, and then gives directions to the feedlot or abattoir, by phone, as to when and where fertiliser is needed, and the quantity of organic product to be transported to the property in preparation for it to be mixed and spread. He does not keep written records of his telephone directions, nor does he require the staff at the feedlot or Butlers to make written records regarding these requests. 123Both Hartshorn and Rosewarne deposed that the drivers that bring the manure and paunch contents to the properties are employed by Ashton, not the defendant company. The trucks are also owned by Ashton, which gives the drivers directions (primarily via " Brad" , its plant manager). 124The subject lands were used for cropping and grazing purposes at the time of sale in late 2005, and Garrison was keen to continue that use. At the time of the purchase " some areas of the land" were littered with rubbish and debris (par 50). " There was rubbish ... spread all over the place " (T p157, L5, c.f. Thomas par 13). Hartshorn and Robert Woodward Snr decided to " tidy up " the property and remove any obstructions that constituted a danger to farming procedures including cultivation and fertiliser spreading. 125From his lifetime experience in the management of large properties, Hartshorn believes that it is common practice of farmers and graziers to dispose of waste by burying in a pit. He concedes that landowners also dispose of " rubbish " at tips or landfills (T p155, LL35-43). 126Hartshorn gave broad instructions to, and relied on, his 14 or 15 staff (T pp167-170). They used a front end loader to dig two trenches 10 ft wide, 20-30 ft long, and 8 ft deep. " Junk items or items of no use or value were placed in the pits " and the process took between 6 and 12 months (par 53). The men who did the work were experienced and required no direct supervision. Once the property was " sufficiently clean ", the pits were back-filled with the earth and material removed to create them. The design allowed for at least four feet of clean fill, so ploughs or other machinery could be used on the land subsequently, without interference from buried material. 127From time to time Hartshorn has arranged for manure and paunch contents to be taken to the property for the purpose of spreading fertiliser. When the Council officers attended the property on 16 January 2008, they saw piles of manure which had been taken there in readiness for mixing with paunch content and compost to be spread as fertiliser. Hartshorn also confirmed (T pp159-160) that there was a " mound of manure " stored on the property as at the Council's inspection on 29 October 2008. 128He was surprised on 10 November 2008 when paunch contents were uncovered in the pits as there was no reason for such material to be in them. At no time had a direction been given for paunch contents to be delivered, and/or placed in the pit. He considers it to be a " one off error only ". He deposed (in par 59): I accept that when the Council officers dug a trench through the pits on the Tueloga Road Property, paunch contents were found to have been buried in one of the pits. I do not know why this material was placed in the pit. It was not supposed to be placed in the pit, but was supposed to be placed in piles on the ground to mix with manure for spreading. I did not direct the paunch contents to be buried... 129In par 60 he deposed to having made inquires of the abattoir, but being unable to find out which driver may have delivered paunch contents at a relevant time to the subject property. He continued: " I can say that it was never my intention or the intention of management of Garrison to have that material buried ". 130In commenting (pars 61-74) on some of the earlier affidavit evidence of Thomas and Williams, Hartshorn's affidavit makes the following points: (1) he believes Council officers entered the property on one occasion, possibly on 16 January 2008, by cutting a padlock (par 63, and T pp153-154); (2) he recalls having conversations with Council officers on various occasions, but does not recall the precise words (e.g. par 64); (3) all the material uncovered in his presence had been cleaned up from the Tueloga property (par 66); (4) " it is difficult to estimate how much paunch contents was uncovered however it appeared to me to be minimal " (par 67(c)); (5) he recalls saying to Williams (as Williams deposed in pars 21-22 of his first affidavit) that only farm materials and general farm waste had been buried, but, to his knowledge, no abattoir waste (par 72); (6) he recalls Frank Robinson from the EPA remarking that he could not " understand that why you would valuable material like this in a pit when it could be used as a fertiliser " (par 73). 131During his oral evidence (T pp178-182), Hartshorn confirmed the defendant's standard practices in dealing with paunches and their contents. Contents are stored for up to 2-3 weeks, and when they are taken to lands, including the subject lands, they are dropped in a particular, nominated paddock. There are seven named paddocks on the subject land, and the excavated mound was located on " Pete's Paddock ". During 2008 Hartshorn believes there were " possibly" weekly (T p177) deliveries, each of 20 cubic metres of paunch contents delivered to Pete's Paddock, " to be mixed with the manure and compost to be spread on the paddock as fertiliser " (T p181, LL6-7). 132He was very precise (T pp175-176) about the company's procedures, whereby his directions to have materials delivered to the subject lands are " fed through " to Ashton's drivers, who know both how to drive the trucks and how to deposit the materials on the lands. The fertiliser ingredients are then mixed by Garrison employees on Hartshorn's instructions. 133He carefully distinguished between manure, paunch contents, and compost (T p161, L50-p162, L1, and p181, L27-p182, L14): A. Composting is where it's turned on a regular basis and broken down into a smaller even material. ... Q. What do you mean by composting? ... A. Composting is when materials are mixed and turned on a regular basis in order to be broken down. We've also got a composting machine that we use for our composting process. Q. Do you use paunch content for composting? A. Yes. Q. Were you using paunch content for composting on the subject land in 2008? A. No. Q. But you were having paunch contents delivered to the subject land in 2008. A. Yes. Q. What for? A. To be mixed with the manure and compost material to be spread as fertiliser. ... Q. Was the paunch content being delivered to the land for storage? A. No. Q. It was intended, wasn't it, by you, that when paunch content was delivered to the subject land it would be mixed with other materials? A. Yes. Q. Then it would be spread over the land. A. Yes. Q. But that's not composting. A. No. 134As to what was buried on the subject land, Hartshorn was also very candid in his oral evidence. He saw " what was going to be cleaned up before it was cleaned up " (T p171, L9), and he was present as it was dug up in November 2008 (T p171, LL21-23). The " rubbish " included steel pipes and tubing, " plastic odds and sorts ", plastic silage wrap, and concrete rubble (T p166, LL16-36, and T p169, LL20-21). None of it was intended to be used again (T p169, LL20-22). He left it to staff " to decide for themselves what was rubbish [to bury] and what wasn't " (T p169, LL40-48, and p170, LL33-35). 135He denied all knowledge of the s 192 notice sent by Council to the defendant company, and testified that he was not involved in the answers prepared (T p172, L16-p173, L9). Although he made responses to the prosecutor's affidavit evidence, Hartshorn clearly saw only the first affidavits of both Thomas and Williams (see par 61). The notice and response were attached to Williams's second affidavit. Assessment of the witnesses 136Mr Howard submits that the court should place no or little weight on the relatively late affidavit evidence of the Council officers, Thomas and Williams. More contemporaneous evidence of their observations, beyond Williams's note in Exhibit G2 , was not produced in the case of either witness, despite repeated calls, and both made serious mistakes in important elements of their evidence (e.g. location of the pits), and often sought to blame others. 137Mr Howard was more critical of Thomas than Williams (T pp213-217). Both prepared and swore their affidavits long after relevant events. They conferred twice in the course of their work and certainly appear to have collaborated in their affidavits. They were shown to have made " glaring and fundamental " errors, and to have " reconstructed " scenarios which favoured the prosecution case (e.g. Thomas deposed to seeing three pits when what he actually saw was one covering mound). 138Overall, the court had to make substantial allowances for their relative inexperience in the prosecution of major offences, and for many of their shortcomings (T pp207-8). However, despite obvious failures in some of their evidence, and some flippant/casual responses in cross-examination, I do not suggest any deliberate untruthfulness. They were adamant about some of their evidence, but in other important instances claimed to have no recollection at all, and I could certainly not be confident that their evidence was totally reliable. 139I accept the expert evidence of Dr Thornton, which was largely unchallenged, but in some areas I was not satisfied of his contentions beyond reasonable doubt, and the prosecutor fairly acknowledged in final submissions that I could not be, Dr Thornton also failed to distinguish paunch contents from manure. He concluded that there was waste buried in the pits, but the defendant always admitted that in respect of all substances except the paunch content (T p206, LL10-16). 140On the other hand, although Mr Seymour set out to attack Hartshorn on issues of credit (see particular (e) in [21] above, and T p159), I found him to be very frank and open with the court in every respect, and I accept his evidence. Consideration 141The prosecutor relies upon the admissions made on the defendant company's behalf: (1) That it made a decision to clear the subject land of " rubbish ", which can be obstructive of, and perhaps dangerous to, the carrying out of its normal pastoral and cropping operations. (2) That its servant/agent Hartshorn directed the creation of two large (10 x 20 to 30 x 8) pits in which to bury the " rubbish " but left it to his employees to decide what " rubbish " to bury. (3) That at around the same time, the defendant was delivering " paunch contents " to the same area of the subject land. (4) That Hartshorn gave no direction to any person not to bury " paunch contents ". 142In consequence, the defendant has " used " its land, some three years after its purchase, for the storage and disposal of the materials buried in the pits, and the prosecutor says that this is a " separate " use from the grazing/cropping agricultural use, for which the defendant acquired the land, and is a " use for the purpose of " the final storage and disposal of " discarded, rejected, unwanted, surplus or abandoned substances ". See Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400, at [27]-[36], and the cases there discussed by Preston J, in respect of " use " for a " purpose ". 143The charge refers to "(1) general waste; (2) silage wrap; and (3) paunch ". I am satisfied that among the excavated materials there was some silage wrap (possibly only one long piece), and " some paunch content " (relatively small - Hartshorn says " minimal " - amounts in two pit locations). 144However, the silage wrap and other materials identified were more in the nature, generically, of " farm waste " than what the court would consider " general waste". Williams (in Exhibit G2 ) used the term " farm type waste " to describe them, and gave detailed oral evidence of them, consistent with that description, by reference to the photos (in Exhibit G1 ). I am satisfied that there were numerous items of this type, but, in terms of " how much ?", Hartshorn was firm in his rejection of terminology such as " a lot of rubbish ", and the Council has not produced any evidence of quantity. 145The defendant admits that it buried a number of items if found on the land. It accepts that all the items it buried were " rubbish" and " waste ", except the " paunch contents " or " manure ", which were imported to the site, were considered valuable for use in making fertiliser, and may have been tipped into a pit by an Ashton delivery driver, " in erro r". Something which is not " waste " does not become waste simply as a result of some such " error ". 146I am satisfied that the burial of the relevant materials took place on the subject land between January and November 2008, that the defendant is the owner/occupier of that land, that the burial of the materials was of benefit to the defendant's agricultural use of its land, that the majority of the buried materials comprised " waste ", as defined by statute, regulation, and/or case law, and that the defendant does not enjoy a development consent to use its land as a waste facility. 147The main challenge remaining for the court is to find whether or not all this means that the land has been used for the purpose of a waste facility , and whether the true characterisation of the " paunch contents " is relevant to that question. No points were taken by Mr Howard (1) that the charge specifies " general waste " and the evidence establishes only " general farm waste ", or (2) that the charge specifies " paunch " and the evidence points to the discovery of " paunch contents ", rather than any other part of the " paunch ", as strictly understood. 148The alternative tests of whether a substance is " waste ", in the POEO Act definition ([3] above) are: (a) will it cause an " alteration in the environment "? (b) is it " discarded, rejected, unwanted, surplus or abandoned "? (c) if the substance is " otherwise " within the descriptions in (b), is it " intended for sale or for recycling, processing, recovery or purification by a separate operation from that which produced " it? (d) is it " any processed, recycled, re-used or recovered substance produced wholly or partly from waste that is applied to land or used as fuel, but only in the circumstances prescribed by the regulations ", namely by Regulation 3B ([4] above)? (e) is it a substance prescribed by the regulations? 149Counsel for both parties relied upon Craig J's decision in Environment Protection Authority v Shannongrove Pty Ltd ('Shannongrove' ) [2010] NSWLEC 162; (2010) 176 LGERA 3, Bignold J's decision in Owen v Willtara Construction Pty Ltd ('Owen' ) (1998) 103 LGERA 137, and Preston J's decision in Environment Protection Authority v Hardt ('Hardt') [2006] NSWLEC 438; (2006) 148 LGERA 61 (reported on appeal as Hardt v Environment Protection Authority [2007] NSWCCA 338; (2007) 156 LGERA 337). 150Also relevant and useful are Pearlman J's decision in Environment Protection Authority v HTT Huntley Heritage Pty Ltd [2003] NSWLEC 76; (2003) 125 LGERA 322 (a case involving breach of licence conditions), and the series of judgments in Gerondal v Eurobadalla Shire Council (' Gerondal' ), commencing with Pain J's judgment on the class 6 appeal [2009] NSWLEC 160. Gerondal involved an alleged waste facility on private residential land, and the defendant contended that all the materials stored on his land would be used in building/renovation or repair works, and in pursuit of artistic and other personal interests. As the magistrate observed at first instance (see quotation in [42] of Pain J's judgment) " one man's waste is another man's asset ." 151Matters such as volume of material, in relation to the area covered, and the length of time it is left on the land, were seen as important considerations in Gerondal , as they were by me in Fletcher ([27] above). 152One principle for which Hardt is said to be authority, and on which the prosecutor relies, is that a subjective intention to re-use a substance (in building an access road, or using paunch contents in fertiliser) is not relevant. The court derives " objective intent ... from looking at the facts " (T pp194-5), and the prosecutor argues that the defendant treated the paunch contents the same as the general farm waste, i.e. dumped it in the burial pit prepared for that waste/rubbish. 153Mr Seymour put the prosecutor's case in these terms (T p195, LL22-31): ... by the burying of this material, there is an intention through the company structure, through its act as an agent, there is an intention to use the land for the storage of this material under the ground and by that act it's disposal, which would constitute the use as being for the purpose of a waste facility. I don't have to prove as a prosecutor a specific intent to say, let's use our land as a waste facility, I only need to establish that there's an intention to bury the material, which in my submission actually comes from the evidence of Mr Hartshorn himself, there was a clear intention to bury at least the farm waste and then we know, because there's paunch content under the ground, that employees of the defendant must have buried it. 154No one could explain to the court how paunch contents came to be buried in the pit. The defendant had a clear and practical plan for its use on the land and no reason to bury it. It is a reasonable hypothesis to suggest a dumping error on the part of an Ashton driver, but presumably some Garrison vehicles also delivered waste from around the property to the burial site, and could have been responsible for the tracks found near the pits. 155Even if there were an evidentiary basis to conclude that an Ashton driver dropped paunch contents into the burial pits, it was simplistic of Mr Seymour to argue that the driver was an agent of the defendant company. Ashton was an agent of the defendant company, but the driver's relevant relationship is with Ashton and not Garrison. 156As I have concluded below [166] that the paunch contents are not waste, I do not need to decide the question of liability for the driver's error, but if I had to do so I would be greatly assisted by the analysis of the relevant tests and principles to be found in the learned analysis by Biscoe J of relevant UK and Australian decisions in Director-General, Department of Environment and Climate Change v Jack & Bill Issa Pty Ltd (No. 5) ( Issa ) [2009] NSWLEC 232; (2009) 172 LGERA 225. Each case turns upon its own facts and statutory regime, but Mr Seymour took me to no authority, and I can find none in Issa , to support a submission that the defendant in this case can be held responsible for the acts or mistakes of an employee of another company, albeit a related entity. 157As Mr Howard submits (T p213, LL36-38): Unfortunately for the prosecutor and in respect of the onus, if it can't exclude rational hypothesis consistent with the innocence of my client then it cannot prove the charge insofar as it relies on circumstantial evidence. 158In Shannongrove , the charges concerned transporting waste to a place which could not lawfully be used as a waste facility for it. The party which accepted it wanted to inject it into soil. Craig J analysed the correct time at which the material should be characterised, and characterised it at its " source ". Transportation does not change its character. 159The prosecutor in this matter submitted (T p201) that the paunch contents were " waste " at their source, i.e. waste from the slaughter process, and that the post-slaughter steps constitute an entirely separate process. Mr Howard submitted that in the present case grass is not waste when it is eaten by an animal, and is still not waste when the digestive process is interrupted by the slaughter of the animal and the stomach contents are taken for another application (T p218). Its character does not change. 160The use of the slaughter by-product in fertiliser is part of an integrated operation - animals are grazed on 20 properties, fattened at the feedlot, and slaughtered at the related abattoir, with the various products of the abattoir process then exploited appropriately, including using the paunch contents for pasture improvement on the 20 properties, so the cycle continues. 161Owen is authority for using common sense when applying the " alteration in the environment " test ((a) in [148] above), so that the question posed is " does it cause a deleterious change to the environment ?" Mr Seymour correctly points out that Bignold J did not specifically find that the test required a deleterious alteration/change, but, given His Honour's reliance on the Western Australian pollution case Palos Verdes Estates Pty Ltd v Carbon (1991) 6 WAR 223, 72 LGRA 414 (see Bignold J at [87] - [88]), I think it is a fair and commonsense interpretation of His Honour's thinking to read into his obiter comment the concept of " deleterious ". 162As Mr Howard submits (pars 60-61), there is no evidence to support any proposition that the nature, volume, constituency of, and/or the manner of depositing in the environment, the " paunch contents " caused any change greater than " the natural process of cattle defecating or the deposition of commensurately modest volumes of grass clippings or grain ", albeit that it can be argued that the environment is " altered " by its soil enrichment qualities. 163Similarly, Owen would suggest taking a commonsense approach to test (b) ([148]). The paunch content was deliberately extracted from the paunch material for separate beneficial application to the land, and so is not " rejected, unwanted or surplus ", nor " discarded or abandoned ", despite any inference of driver error. 164Test (c) means that an intention to sell, recycle, etc will not alter a substance's status as " waste ", if it is " otherwise discarded etc ". The " paunch content " was not, on all the evidence, " otherwise discarded, etc ", and so it does not fit tests (b) or (c). 165As " paunch content " is not " produced wholly or partly from waste ", test (d) also does not apply. Nor does (e), as it is not prescribed by the regulations to be waste. 166I, therefore, conclude that the " paunch contents " buried in, and later excavated from, the subject land are not properly characterised as " waste ". 167Accordingly, I now return to consider the question of whether the defendant used its land " for the purpose of a waste facility ". 168The statutory definition of " waste facility " ([3] above) incorporates the notion of land use and its purpose - is the relevant land being used " for " the processes nominated in the statutory definition (storage, etc)? 169In this case the charge is also very specific - the defendant used the land for the purpose of a waste facility. That is more specific than the charge in either Blacktown City Council v Pace and Another [2002] NSWLEC 142; (2002) 121 LGERA 432, or Hardt. 170In both those cases the charge was " permitted the land to be used as a waste facility ". Pain J and Preston J respectively considered there was no requirement for the prosecutor to demonstrate " purpose ", only " use as ... ". I do not disagree with, nor find error in, their Honours' conclusions, but the charge here is formulated quite differently, and, given the earlier argument, hearing, and consequent amendment, I suggest quite deliberately so. 171Normal farming operations generate waste, and I agree with Mr Howard and Mr Hartshorn that pit disposal on-farm is a normal and very common incident of those farm operations, and plainly ancillary to that use, in terms of the principles of characterisation of use, as established in well-known cases leading up to and including Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404. 172Pit burial of relatively modest quantities of material cannot make the farm a " waste facility ", even though the " paunch contents " (albeit I have concluded they are not " waste ") are deliberately brought to it. Most of the waste generated by farming operations is " general farm waste ", and, in the present case, apart from the " paunch contents ", all the items identified on excavation fit that description. 173A major shortcoming in the prosecutor's evidence is the lack of any real evidence as to quantities - there is a " vacuum of evidence " in this regard (T p209, L42). It is in this context that " questions of fact and degree " are pertinent ( Fletcher , [27] above). 174Mr Seymour submitted that if there were any waste buried in the land it constituted use of the land for the purpose of a waste facility - " that there was not much of it is completely irrelevant to the charge ... [and] would only be ... relevant to sentence, not to liability " (T p202, LL8-11). 175I respectfully disagree. As I decided in Fletcher , questions of quantity, in gross and relative terms, must be relevant to any issue of use. Even if the court accepted that all 810m of material estimated to be buried was, indeed, " waste ", that amounts to a very small " use " of 1600 acres of land. The area of the mound covering the pits was estimated at 900m , whereas a 1600 acre property occupies almost 6.5 million m . 176The prosecutor accepted that it bore the onus of establishing that the pit burial use was separate from, and not ancillary to, the agriculture use, and so required development consent. I have concluded that, as a truly ancillary use, the burying on the subject land of the farm waste and a small amount of imported non-waste did not. 177I should add that I also find no merit in the prosecution submission that the time lapse between taking over the property at the end of 2005 and deciding in 2008 to clean it up establishes a change in use. As Mr Howard noted (T p230, LL30-1): " The whole purpose of the clean-up was to facilitate the agricultural use ". Conclusion 178It is clear from what I have said that, in terms of the charge as laid, I am satisfied beyond reasonable doubt that the defendant " stored " and/or " disposed of ", on the land, some " general farm waste " (including some silage wrap), and some " paunch contents ", but I am not satisfied that the quantities involved and the circumstances proven are sufficient to render that conduct " use of the land for the purpose of a waste facility ". 179The prosecutor having failed to substantiate a crucial element of the offence charged, the normal consequence would be that the summons be dismissed, probably with costs. However, I will stand the matter over to a date to be fixed, to hear any argument on the form of final orders and any claim for costs, if those questions cannot be quickly agreed between the parties. 180I direct the parties to consult with each other and the Registry within 21 days to find an appropriate date and time for the matter to be re-listed before me, for mention or further hearing. 181All the exhibits may be returned. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 December 2011