Environment Protection Authority v Terrace Earthmoving Pty Ltd [2013] NSWCCA 180

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Environment Protection Authority v Terrace Earthmoving Pty Ltd [2013] NSWCCA 180 Hearing dates: 16 May 2013 Decision date: 05 August 2013 Before: Basten ACJ at [1]; Hall J at [64]; Barr AJ at [65] Decision: The questions are answered and orders made in the following terms: (1) Question: 6. Was it open on the facts found by me to hold that the definition of 'waste' in the Dictionary to the POEO Act had no application during the First Charge Period? Answer: On the proper construction of the Act, the definition of "waste" in the Dictionary had no application to an offence under s 143(1) prior to 1 May 2006, whilst "waste" was specially defined in s 143(4). (2) Question: 5. Was it open on the facts found by me to hold that the 'transport' of waste within the meaning of section 143 of the POEO Act to a place did not include the deposition of that substance at the place? Answer: On the proper construction of the Act, "transport" of waste for the purposes of s 143(1) did not include depositing the substance at the place to which it was transported. (3) Questions: 1. Was it open on the facts found by me to hold that in determining whether the substance was 'waste' within the meaning of section 143(4) of the POEO Act during the First Charge Period the factors relevant for consideration included: (a) the nature of the substance; (b) whether there was an identified demand for that substance; (c) circumstances in which the substance was obtained or removed from its source; (d) whether the substance was being transported to a place at which it was intended to be used for the purpose for which demand for the substance has been shown; (e) the period of time that elapsed or was expected to elapse after the substance was transported to the place of its intended use before it was put to that use; and (f) whether the substance was stockpiled at the place to which it had been transported? 3. In determining whether the substance was 'waste' within the meaning of section 143(4) of the POEO Act during the First Charge Period should I have held that the only factors for consideration were: (a) the nature of the substance; and (b) whether the substance was 'unwanted' or 'surplus' in the hands of the owner or generator of that substance? 8. Was it open on the facts found by me to conclude that the qualification expressed in the words "A substance is not precluded from being waste merely because it may be reprocessed, re-used or recycled" in Section 143(4) of the POEO Act was a limited one and did not change the determination that the substance transported by the First Respondent be 'unwanted' or 'surplus' in order to qualify as 'waste'? Answer: On the proper construction of the Act, whether a substance was "waste" for the purposes of s 143(4) required the court to consider whether the substance being transported was unwanted or surplus by and to the owner of the waste immediately before it was transported. That question of fact was to be determined without reference to whether, because of its nature, the substance might be reprocessed, re-used or recycled. The other factors referred to in questions 1 and 3 were irrelevant except to the extent that their consideration might provide evidence of the state of mind of the owner of the land on which the substance existed immediately prior to transportation. (4) Question: 7. Was it open on the facts found by me to hold that the definition of 'waste' in paragraph (a) in the Dictionary to the POEO Act had no application during the Second Charge Period? Answer: On the proper construction of paragraph (a) in the definition of "waste" in the Dictionary to the Act, as in force on and from 1 May 2006, a substance is not discharged, emitted or deposited in the environment by transporting it to a place for the purposes of s 143(1) of the Act. (5) Questions: 2. Was it open on the facts found by me to hold that in determining whether the substance was 'waste' within the meaning of paragraph (b) of the definition in the Dictionary to the POEO Act during the Second Charge Period the determination made by me in relation to the definition of 'waste' in the First Charge Period remained apposite? 4. In determining whether the substance was 'waste' within the meaning of paragraph (b) of the definition in the Dictionary to POEO Act during the Second Charge Period should I have held that the only factors for consideration were: (a) the nature of the substance; and (b) whether the substance was 'discarded, rejected, unwanted, surplus or abandoned' in the hands of the owner or generator of that substance? Answer: The meaning of the term "waste", as defined in the Dictionary to the Act on and from 1 May 2006, was to be addressed having regard to the whole of the definition and the context in which the word appeared in s 143(1). In undertaking that exercise, (a) paragraph (a) provided little or no assistance in defining the term for the purposes of s 143(1); (b) the words "discarded", "rejected" and "abandoned", describe characteristics of a substance by reference to an action of the owner which may assist in determining whether the substance was "unwanted" or "surplus" in the hands of the owner; (c) a substance will remain waste even though it is intended to be sold, recycled, processed, recovered or purified by a separate operation from that which produced the substance and will remain waste until one of those steps is taken. (6) Question: 9. Was it open on the facts found by me to hold that the Appellant had an onus to prove beyond reasonable doubt that lawful authority was required to use the Property as a waste facility for that waste, and only once that had been proved, did an onus shift to the First Respondent and the Second Respondent to establish that there was lawful authority for that purpose? Answer: Inappropriate to be answered. (7) Order that the proceedings be returned to the Land and Environment Court, for final orders to be made in accordance with the answers given to the questions of law as determined by this Court. (8) No order as to the costs of the proceedings in this Court. Catchwords: CRIMINAL LAW - transporting waste to place not lawfully used as a waste facility - demolition material transported from building site to private property for use as road-base - trial judge not satisfied that material transported was "waste" - questions of law submitted - Protection of the Environment Operations Act 1997 (NSW), s 143