Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie [2019] NSWCCA 174

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie [2019] NSWCCA 174 Hearing dates: 9-10 July 2019 Date of orders: 02 August 2019 Decision date: 02 August 2019 Before: Preston CJ of LEC at [1]; Davies J at [411]; Adamson J at [412] Decision: (1) The Court answers the submitted questions as stated in [410]. (2) The Land and Environment Court is to redetermine the proceedings in accordance with the answers given to the submitted questions by this Court. Catchwords: APPEAL AND REVIEW – question of law stated under Criminal Appeal Act s 5AE during summary proceedings in Land and Environment Court – offence of using land as a waste facility without lawful authority – whether prosecutor permitted to make second s 5AE request in substantially different form to first request – meaning of "waste" – whether recycled materials deposited on land in stockpiles met definition of waste – whether stockpiling of materials on land a scheduled activity – whether depositing waste on land was the scheduled activity of waste disposal by application to land – whether temporary stockpiling of waste on land was the scheduled activity of waste storage – meaning of "asbestos waste" – whether waste contained asbestos – application of exemption granted under regulations – effect of exemptions that activity a non-scheduled activity – statutory exception to onus of proof – defendants bore onus of proving lawful authority – defendants bore onus of proving exemptions apply – no lawful authority pursuant to development consent or other approval – whether continuing offence proven – whether offences time barred – errors of law established – proceedings remitted to Land and Environment Court for determination in accordance with the answers given to the submitted questions