Environment Protection Authority (Prosecutor); Foxman Environmental Development Services (Defendant); Botany Building Recyclers Pty Ltd (Defendant); Phillip Foxman (Defendant)

[2015] NSWLEC 105

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Environment Protection Authority (Prosecutor); Foxman Environmental Development Services (Defendant); Botany Building Recyclers Pty Ltd (Defendant); Phillip Foxman (Defendant) [2015] NSWLEC 105
Hearing dates:	9 – 13, 16 – 20, and 23 – 27 February 2015; view 2 March 2015; 4, 26 and 31 March 2015
Decision date:	30 June 2015
Jurisdiction:	Class 5
Before:	Sheahan J
Decision:	See findings at [306]
Catchwords:	ENVIRONMENTAL OFFENCES – unlawful use of land as waste facility – unlawful transportation of waste to land – related corporate defendants and their sole director entered pleas of not guilty – building waste recycling operation – whether recycled building material is “waste” – whether the defendants were exempted from licensing requirements for the use of the material to construct “roads” by virtue of a statutory exemption under the waste regulations – the material contained asbestos and exceeded prescribed chemical limits in the exemptions – exemptions did not apply – defendants guilty.
Legislation Cited:	Criminal Procedure Act 1986 Environmental Planning and Assessment Act 1979 Evidence Act 1995 Protection of the Environment Operations Act 1997 Protection of the Environment Operations (Waste) Regulation 2005 Water Management Act 2000
Cases Cited:	Director-General, Department of Environment and Climate Change v Jack and Bill Issa Pty Ltd (No 5) [2009] NSWLEC 232; 172 LGERA 225 Director-General, Department of Planning and Infrastructure v Glass Recovery Services Pty Limited [2015] NSWLEC 49 Director of Public Prosecutions v Sadler [2013] NSWSC 718 Environment Protection Authority v Hardt [2006] NSWLEC 438; 148 LGERA 61 Environment Protection Authority v HTT Huntley Heritage Pty Ltd [2003] NSWLEC 76; 125 LGERA 332 Environment Protection Authority v Terrace Earthmoving Pty Ltd [2013] NSWCCA 180; 84 NSWLR 679 Shannongrove Pty Ltd v Environment Protection Authority [2013] NSWCCA 179; 84 NSWLR 668 Walker Corporation Pty Ltd v Director – General, Department of Environment, Climate Change and Water [2012] NSWCCA 210; 82 NSWLR 12 Weller v El Homsi [2009] NSWSC 282; 74 NSWLR 443 Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 5); Foxman Environmental Development Services Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 68
Category:	Principal judgment
Parties:	Environment Protection Authority (Prosecutor) Foxman Environmental Development Services (Defendant) Botany Building Recyclers Pty Ltd (Defendant) Phillip Foxman (Defendant)
Representation:	Counsel: Phillip English, barrister (Prosecutor) Phillip Foxman (all Defendants) Solicitors: Environment Protection Authority (Prosecutor) N/A (Defendants)
File Number(s):	51244 of 2011, 51249 of 2011, 51251 of 2011, 51252 of 2011, 51253 of 2011, and 51254 of 2011

Judgment

A: Introduction

1. This judgment concerns six defended prosecutions, brought by the Environment Protection Authority (“EPA”), variously against Phillip Foxman personally (“Foxman”), and two companies of which he was, at all material times, the sole director and guiding mind.

2. The proceedings have their origin in (1) the receipt and processing of material at premises at 38 McPherson Street, Banksmeadow, (2) the moving of material from those premises to, and (3) its placement on, land known as “Foxman’s Valley”, near The Oaks, in Wollondilly Shire.

3. The Banksmeadow site was owned and operated at all material times, but no longer, by Foxman, and/or one of his companies, namely Botany Building Recyclers Pty Ltd (“BBR” – incorporated in April 1989 (Exhibit P8, tab 14)).

4. The Wollondilly site has been owned by another Foxman company, Foxman Environmental Development Services Pty Ltd (“FEDS” – incorporated in July 2008 (Exhibit P8, tab 13)), since April/May 2009 (SAF3, and Exhibit P3, item 2).

5. The prosecutor asserts that approximately 16,000 tonnes of transported material was contaminated waste, in that it contained asbestos, and/or lead, and/or “foreign matter”.

6. The defendants say that, according to English dictionaries, “waste” is material with no further use, and that the moved material, being recycled building and construction waste, was “fit for [the defendants’] purpose(s)”, namely use as fill and road base, even if small amounts of contamination were present, and, therefore, it was not “waste”.

7. They also complain that many of the relevant regulatory instruments regarding waste, asbestos, etc. are impossible to obey, in practical terms.

8. Foxman personally is the defendant in three of the matters (11/51249, 51253, and 51254); FEDS is the defendant in one (11/51244); and BBR is the defendant in the remaining two (11/51251 and 51252).

9. The penalties for each of the six charged offences ([22] – [30] below) are fines of:

$250,000 for an individual, and

$1 million for a corporation.

10. All defendants having pleaded “Not Guilty” to all six charges, they all agreed to a statement of some facts, common across all six proceedings (“SAF” – item 1 in Exhibit P3).

11. Until 1997, and from 2007 to 2014, BBR conducted a waste processing facility at the Banksmeadow site (SAF6), processing and then recycling some of the waste received there.

12. Waste which cannot be recovered or recycled necessarily must be taken to landfill, if it cannot be stored on site at any such facility (SAF9).

13. The defendants accepted the tendering of an evidentiary certificate (Exhibit P3, item 3) to the following effects:

1. Foxman’s Valley was not the subject of, nor was Foxman or FEDS the holder of, any environment protection licence (“EPL”) under the Protection of the Environment Operations Act 1997 (NSW) (“POEO Act”), during the period 1 May 2009 to 30 September 2013 (inclusive); and

2. BBR held, during that period, an EPL (No 12857) under that Act, covering the Banksmeadow premises, with respect to the “scheduled activities of waste storage and waste processing (non-thermal treatment)” (SAF7, and Exhibit P8, tab 15).

14. BBR’s EPL commenced on 7 July 2008, and the parties agreed (SAF8) that, under its terms, "there shall not be more than 10,000 cubic metres or 20,000 tonnes, whichever is the lesser, of waste and/or processed material on the [Banksmeadow Waste Facility] at any time."

15. During the investigation which led to Class 4 proceedings (matter 10/40578) being brought by Wollondilly Shire Council (see [74] – [79] below) against (1) FEDS, (2) Foxman personally, (3) BBR, and (4) private certifier Craig Hardy, and during those proceedings, Foxman admitted, in reply to a statutory notice, among other things, that he was the “manager and sole director”, with “day to day management and control”, of the two defendant companies (FEDS and BBR), as well as of Foxy’s Transport Pty Ltd (“Foxy’s”) and Foxman Holdings Pty Ltd (“Holdings”).

16. His 2014 statement of assets and liabilities (Exhibit D15) establishes that he also played a similar role with some other “Foxman” or “Foxy” companies. Foxman now admits that he held those responsibilities during the entirety of the charge periods (SAF1 – 2). (The responses to the statutory notice were provided by Whittens Solicitors on 13 August 2010, on behalf of Foxman and all four companies, and appear in Exhibit P9, tab 57, at pages 627 – 630. See also Exhibit P11, tab 26, p2, and Tp240, LL18 – 37.)

17. Foxy’s was mentioned in much of the transportation evidence before the Court, and Holdings was the owner of the BBR Banksmeadow site, but neither of those companies, nor any of the other “Foxman” or “Foxy” companies described in the documentation before the Court, is a party to these prosecutions. Foxman’s statement of assets and liabilities (Exhibit D15) also indicates that, by September 2014, Foxy’s was also in liquidation.

18. Foxman told the Court:

1. that Holdings disposed of the Banksmeadow site on 28 February 2014;

2. that he placed BBR in voluntary administration a few months later; and

3. that his son Jacob is now the sole director of Holdings.

B: These six Class 5 proceedings

The summonses

19. The summonses originating the six Class 5 proceedings were filed on 22 December 2011, pursuant to an order made by the Chief Judge. At that time, judgment remained reserved before Pepper J in the Class 4 matter.

20. Because the issues in the civil and criminal proceedings were seen as overlapping, the parties and the Court deferred the appointment of Class 5 trial dates until the Class 4 judgment was delivered.

21. Amended summonses were filed in all six matters, by consent.

The sections

22. The sections of the POEO Act which underpin these charges, namely ss 143, 144 and 169, as they stood at the relevant dates, provided:

143   Unlawful transporting or depositing of waste

(1)   Offence

If a person transports waste to a place that cannot lawfully be used as a waste facility for that waste, or causes or permits waste to be so transported:

(a)   the person, and

(b)   if the person is not the owner of the waste, the owner,

are each guilty of an offence.

Maximum penalty:

(a)   in the case of a corporation—$1,000,000, or

(b)   in the case of an individual—$250,000.

...

(4)   Definitions

In this section:

...

owner of waste includes, in relation to waste that has been transported, the person who was the owner of the waste immediately before it was transported.

...

144   Use of land as waste facility without lawful authority

(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.

Maximum penalty:

(a)   in the case of a corporation—$1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or

(b)   in the case of an individual—$250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.

(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.

...

169   Liability of directors etc for offences by corporation—offences attracting special executive liability

(1)   If a corporation contravenes, whether by act or omission, a provision of this Act attracting special executive liability, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision, unless the person satisfies the court that:

(a)   (Repealed)

(b)   the person was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or

(c)   the person, if in such a position, used all due diligence to prevent the contravention by the corporation.

23. Over the years, the detail contained in s 169, other than s 169(1), has been moved within the POEO Act. A 2012 amendment, which took effect on 11 January 2013, moved subsections (4) and (5) of the 2010 version of s 169, concerning the state of mind of a corporation, into a separate section (s 169C). (Details are to be found in Exhibit P2, tab 12, and at Tpp61 – 62.). On 1 October 2013, the word “land” in s 144(1) was changed to “place” (T4.2.15, p3, LL39 – 41). These amendments are agreed to be immaterial to the present charges.

The charges

24. FEDS is charged that, from about 1 May 2009 to 30 September 2013, as owner of the relevant land, it used that land as a “waste facility” without lawful authority, in contravention of s 144(1) of the POEO Act – matter number 11/51244.

25. Foxman personally is charged that, from about 1 May 2009 to 30 September 2013, by reason of s 169(1) of the POEO Act, he committed an offence in contravention of s 144(1), in that he was a director of FEDS, and FEDS, being the owner of the land, used it as a “waste facility” without lawful authority – matter no 11/51249.

26. Foxman personally is also charged that, between 1 May 2009 and 30 September 2009, by reason of s 169(1), he committed an offence in contravention of s 143(1), in that he was a director of BBR, and BBR, caused the transportation of waste to a place, i.e. the FEDS land, that could not lawfully be used as a “waste facility” – matter no 11/51253.

27. Foxman personally is thirdly charged that, between about 12 January 2010 and 22 April 2010, by reason of s 169(1), he committed an offence in contravention s 143(1), in that he was a director of BBR and BBR caused the transportation of waste to a place, i.e. the FEDS land, that could not lawfully be used as a “waste facility” – matter no 11/51254.

28. BBR itself is charged, firstly, that, between about 1 May 2009 and 30 September 2009, it committed an offence in contravention of s 143(1), in that it caused waste to be transported to a place, i.e. the FEDS land, that could not lawfully be used as a “waste facility” – matter no 11/51251.

29. BBR is charged, secondly, that, between 12 January 2010 and 22 April 2010, it committed an offence in contravention of s 143(1), in that it caused waste to be transported to a place, i.e. the FEDS land, that could not lawfully be used as a “waste facility” – matter 11/51252.

30. In relation to the charges which involve BBR itself and Foxman as a director of that company, the particulars state that the subject waste is “material comprising processed construction and demolition waste and asbestos”, and particularize the “manner of breach” as follows:

1. The waste was transported to Foxman’s Valley by truck;

2. Foxman’s Valley was used as a waste facility by being used for disposing of the waste (the prosecutor now does not rely upon the original particular of “sorting”); and

3. Foxman’s Valley could not lawfully be so used for that waste.

The hearing

31. A pre-trial mention was appointed for 4 February 2015, and the hearing was fixed for 20 days, commencing Monday 9 February 2015.

32. The appointed liquidator of BBR approached the Court when the trial opened, seeking some time to consider his position, and soon resolved that he neither consented to, nor declined authority for, Foxman representing BBR in these proceedings.

33. The Court granted Foxman leave to do so, pursuant to s 37(2) of the Criminal Procedure Act 1986 (see Tpp11 – 15, and Exhibit P1), and he proceeded to appear for himself and both defendant companies throughout the hearing, apparently seeking assistance outside Court from a solicitor and a barrister.

34. I commend the members of the prosecution team for their preparedness to assist him in his navigation of the extraordinary volume of evidentiary material during the hearing.

The evidence

35. The prosecutor relied upon the affidavit and documentary evidence of EPA officers Trevor Wilson (Exhibits P6, and D1 – 5), Jacqueline Ingham (Exhibits P11,12,13,14,15 and 16, and D7), Helen Prifti (Exhibit P17), Joshua Godbee, Alex Bourne, Ruth Owler, Renee Fairhurst, and Sally Bowers, most of whom the defendants required for cross-examination.

36. In addition, at the request of the defendants, the prosecutor also called senior EPA officers Stephen Beaman and Christopher McElwain to give oral evidence.

37. The prosecutor also relied upon:

1. the affidavit, documentary and oral evidence of Wollondilly Shire Council officers David Savage (Exhibit P7), and David McEwan (Exhibits P8, 9 and 10, and Exhibit D6);

2. the affidavit, documentary, and oral evidence of town planner Elaine Treglown, whose firm TCG Planning had investigated the FEDS land in 2008, prior to its purchase ([52] below);

3. the affidavit and oral evidence of truck driver Michael Smith, who was employed by Foxy’s from 2009 to 2014 (Tp705), and provided a record of interview (“ROI”) to Ingham and Wilson (Exhibit P6, tab 29);

4. the affidavit evidence of Barbara Hanna, of ALS Laboratory Services, which did some testing of samples for BBR;

5. the work and uncontested affidavit evidence of two highly experienced, expert surveyors, Gary (“Gus”) Warren of Lean & Hayward Pty Ltd (now SMEC Australia, Exhibit P4), and Bernard Moriarty of Vekta Pty Ltd (Exhibit P5); and

6. some evidence obtained from an employee of Foxman/BBR (Tp406, LL43 – 44), Roy Howell, prior to his death on 8 July 2012 (Exhibit P3, document 4). Foxman consented to the admission of this evidence pursuant to s 65 of the Evidence Act (Tp394), but sought to recant in his closing written submissions (par 2(d)). Howell had relevant dealings with Foxman himself, and with the witnesses Wilson, Ingham, Savage and Smith, all of whom gave oral and affidavit evidence in which Howell was mentioned. A ROI was conducted with Howell, on 16 December 2010 with Ingham and Wilson (Exhibit P13, tab 84, and see Tp406, L35 – p408, L6).

38. The prosecutor’s expert evidence was provided by Dr Daniel Martens (a civil and environmental engineer, and scientist, and principal of Martens and Associates Pty Ltd – Exhibits P19 and D6), who prepared joint reports with, and also gave concurrent oral evidence with, defence experts:

1. Andrew Lau, of JBS Environmental Pty Ltd (an environmental engineer, and EPA-accredited auditor – Exhibits D11, P20 and P21); and

2. Bruce Walker, of Jeffery & Katauskas Pty Ltd (a geotechnical engineer – Exhibits D12, P22 and P23).

39. The defendants relied also on the evidence of (1) Foxman himself, (2) their former financial controller, Sandy Durrant, (3) Tony Khoury (Executive Director of WCRA – Exhibit D13), and (4) Paul Oakes (an industry consultant, who provided advice and some professional services to Foxman and BBR). Foxman, Durrant and Oakes provided affidavits, and all four, including Khoury, were cross-examined. Foxman also tendered some EPA samples that had been sent away for testing (Exhibits D1 – D4).

40. The Court visited Foxman’s Valley, after 15 days of evidence, on Monday 2 March 2015, accompanied by Foxman, his son (Jacob), counsel for the prosecution (Mr Phillip English), and an EPA solicitor. The inspection was guided by the EPA witness Wilson, and was filmed (Exhibit P24) by an EPA officer.

C: Additional background

The EPL

41. BBR leased the Banksmeadow site to “Collex” from 1997, but when Collex/Veolia withdrew from the lease in 2007, there was some dispute over responsibility for some environmental works, and it did not transfer its EPL. BBR had to negotiate its own EPL, which the EPA issued, effective 7 July 2008.

42. That EPL (12857 – Exhibit P8, tab 15), the only EPL involved in this matter ([13] above) authorized BBR to store and/or process on its licensed site certain classes of “general solid waste (non-putrescible)” products, including “building and demolition waste”, such as brick, concrete, soil, paper, plastics, glass, metals, and timber, as well as excavated natural material (“ENM”), and asphalt waste. To Foxman’s surprise and disappointment, “green waste” was not included, as he had requested, in line with Collex’s EPL.

43. Condition L5.1 of the EPL provided:

The licensee must not cause, permit or allow any waste to be received at the premises, except the wastes expressly referred to in the column titled “Waste” and meeting the definition, if any, in the column titled “Description” in the table below.

Any waste received at the premises must only be used for the activities referred to in relation to that waste in the column titled “Activity” in the table below.

Any waste received at the premises is subject to those limits or conditions, if any, referred to in relation to that waste contained in the column titled “Other Limits” in the table below.

Condition L5.1 does not limit any other conditions in this licence.

Code	Waste	Description	Activity	Other Limits
NA	Building and demolition waste
NA NA	Virgin excavated natural material Asphalt waste	As defined in Schedule 1 of the POEO Act, in force from time to time	Waste storage Waste processing (non thermal treatment)
NA	Garden waste
NA	Wood waste
NA	General or Specific exempted waste	Waste that meets all the conditions of a resource recovery exemption under Clause 51A of [the Waste Regulation]	As specified in each particular resource recovery exemption	NA

44. Condition L7.1 dealt with asbestos, and required compliance with any conditions specified in the licence, or, in the absence of such specific conditions, the Protection of the Environment Operations (Waste) Regulation 2005 (“the Waste Regulation” – see [96] – [98] below).

45. Condition L8 (see [14] above) required that there not be “more than 10,000 m³ or 20,000 tonnes, whichever is the lesser, of waste and/or processed material on the land at any time”.

46. The Court was told that the EPA had taken some regulatory actions against BBR for breaching EPL conditions, (e.g. for receipt of “green waste” (missing from condition L5.1), and for exceeding stockpile height restrictions (condition L5.2), but the focus of the present hearing has been alleged failures to comply with exemptions granted by the EPA under the Waste Regulation (see [210]ff below).

47. The EPL remained in force until 30 September 2013 (Exhibit P3, document 3).

The FEDS Land

48. As already noted, FEDS acquired the Wollondilly site in 2009. Foxman variously told the Court (1) that he had been looking for a farm to replace one he sold at Jindabyne, (2) that he intended to build his retirement home there, and (3) that he also wanted somewhere to “develop [his] roadbase”.

49. Foxman’s Valley comprises some 76 ha of land, being Lot 733 in DP 881142, located just east of Montpelier Drive some 6 km south of The Oaks, in Wollondilly Shire, and it has a short frontage to Sunnyside Road (450 m) to the north-west, and a longer one to Evelyns Range Road (1.37 km) to the south.

50. Its “street address” is 35 Evelyns Range Road (see Exhibit P2, tab 8), and it can be accessed through gates off each of Evelyns Range and Sunnyside Roads. It will be referred to in this judgment by its name, or as “the land”, “the relevant land”, “the FEDS land”, or “the subject land”.

51. Both roads run off Montpelier Drive, and the south-western boundary of Foxman’s Valley is parallel to that road, but separated from it by three “five-acre” residential lots (Lots 730, 731 and 732), which front Montpelier Drive between its intersections with the two key roads (see Exhibit P2, tab 7).

52. Foxman’s purchase of the land was conditional upon his obtaining development consent (“DC”). His then General Manager, Joe Scimone, engaged “TCG Planning” in August 2008 to investigate what development on the land could gain consent.

53. Foxman “went along” with exploring Scimone’s idea of a golf course, but studies confirmed that much landfill and reshaping would be required for a golf course, that such a landfill project may be “designated development”, and that any development would be restricted by “substantial ecological constraints” (especially the presence of extensive Shale Hills Woodland).

54. The consultants identified the land’s possibly lucrative potential as a biobanking site (see now Exhibit D14). (See Treglown’s affidavit, especially pp37 – 39).

55. It would also appear that Foxman and Scimone were warned by Council on 20 November 2008 that any fill imported to Foxman’s Valley would require certification as “clean fill” (Exhibit P8, tab 10, last item).

56. In the end, Foxman obtained DC from Wollondilly Shire Council on 16 March 2009, approving, on conditions, the development of a “single storey dwelling, detached garage, pool, spa, water tanks and fire trail” (Exhibit P8, tab 1), and the purchase proceeded. He complains that the DC did not embrace all aspects of his development application (“DA” – Exhibit P8, tab 3), lodged on 12 January 2009, which described his proposal as “build a home/dwelling and infrastructure, formalisation of existing trails, and bushfire management”.

57. On 7 October 2009, private certifier Craig Hardy issued a Construction Certificate (“CC”), limited to “Roadworks only” (Exhibit P8, tab 2, and Exhibit P11, tab 3; see also Exhibit P7, tab 4).

How much material was moved there and when?

58. Records from Foxy’s and FEDS (Exhibit P11, tab 24, p1, and Exhibit P2, tab 39, p1, and tab 47) indicate that 5,800 tonnes of material was transported to Foxman’s Valley in the period 1 May 2009 to 30 September 2009, with a further 10,240 tonnes (including 140 tonnes of “green mulch”) between 12 January 2010 and 22 April 2010.

59. The uncontested expert surveying evidence calculates that, in the area referred to as “stockpile 1”, towards Sunnyside Road on the western side of the property, some 6,411 m³ of material was deposited, and, in the area referred to as “stockpile 2”, towards Evelyns Range Road and the eastern side, some 9,331 m³ was deposited (see Exhibit P2, tabs 4 – 8, and Exhibit P4, Annexures ‘D’).

60. The 2009 shipments went to stockpile 1, and the majority of the 2010 shipments to stockpile 2. The relative location and disposition of those stockpiles, in the context of the whole of Foxman’s Valley, can be clearly discerned from schematic plans among the prosecution evidence (Exhibit P12, tab 52, and Exhibit P6, tabs 20 and 26).

Foxman, and his dealings with the authorities

61. Foxman was born on 21 March 1957 (Exhibit P18, p3), and claims to be an active environmentalist with local and international credentials (Tp388, L47), with special emphasis on “clean up” initiatives in Israel (Tpp389, 722f, 939 – 945, and 956).

62. He travelled frequently to Israel between 1998 and 2010, often staying there for “a month or six weeks”, then coming home for “a month or six weeks” (Tp956, LL6 – 9).

63. Indeed, around the time of (1) the DA, (2) the DC, and (3) the beginning of the movement of material to Foxman’s Valley ([26] and [27] above), Foxman was out of Australia – from 28 December 2008 to 14 January 2009, and from 17 March 2009, to some date after 1 April 2009 (Exhibit P18, Annexure ‘B’).

64. He presented himself to the Court as a long-standing, experienced and responsible member of the waste contracting and recycling industry, and an established mass producer/recycler of road base and other “aggregate” and “fines” materials (Tpp939 – 940). He has worked with asbestos for many years (Tp953), and still holds an “asbestos licence”.

65. The Court found him candid and forthright. For example, the prosecutor presented a record (Exhibit P8, p20) of a conversation he had with Council officers Savage and McEwan, on 3 May 2010, in which the following took place:

[McEwan]:   “Mr Foxman, I’d like to ask you several questions about the site.”

He said:   “My solicitor told me he would kill me if I answered any questions but I have nothing to hide, ask away.”

66. When he concluded his 1997 arrangement with Collex for the BBR site ([41] above), he had high expectations of a huge royalty stream, for much of the rest of his life, but he is now unemployed, and, if his 2014 statement of assets and liabilities (Exhibit D15) is accurate, he is generally in a poor financial position.

67. He is an active member of two peak industry organisations covering that sector (the Waste Contractors & Recyclers Association of NSW (“WCRA”), and the Waste Management Association of Australia (“WMAA”) – Exhibit D8), both of which liaise closely with regulators (normally the EPA) on developing and/or improving industry practices, and the regulations and protocols which govern the operations of companies like his in the industry (see Exhibit D13; Foxman at Tpp65, 73, 946f, 957; and the evidence of Tony Khoury at Tpp857 – 871).

68. Foxman feels aggrieved that a neighbour’s complaint regarding his activities at Foxman’s Valley resulted in both the local Council and the EPA acting in concert, and going “so hard on me” (Tp206, L30). He complains that they have (T4.2.15, p5, LL8 – 9) “run [him] into the ground and left [him] in a horrible situation”. He told Sydney and Newcastle newspapers, for an article published in both on 2 – 3 April 2011 (Exhibit D10), that the EPA had conducted a “witch-hunt” against him, and, on 31 March 2011, he had made the same accusation in a letter to Ingham (Exhibit P13, tab 70).

69. The Court notes that Council received a complaint “in about September 2009” (McEwan, Exhibit P8, par 18), and called the EPA’s “Environment Line” on 24 September 2009 (Ingham, par 10). The EPA immediately called the relevant Council compliance officer (Ingham, par 11), and a joint inspection was made on 30 September 2009 (Wilson, 22.12.11, pars 13 – 14).

70. In particular, Foxman complains about the stands taken against him by Christopher McElwain of the EPA (including in the media – Exhibit D10), and by David McEwan of the Council, and about their entertaining of anonymous complaints (Exhibit D7). He even alleged, during the hearing, that public officials may have “conspired” against him, “salted” the FEDS land with asbestos-containing material (“ACM”), and damaged his relationships with lenders.

71. In the context of collaboration among relevant authorities, Foxman made much of a meeting note, dated 26 May 2010, which included (Exhibit P7, tab 10, at p1) a statement that “Council officers were asked if they shared their information with Department of Climate Change and Water and the answer was ‘No’ ...”, whereas there is clear evidence that Council and the EPA were in contact with each other at least as early as 24 September 2009 about Foxman’s Valley ([69] above).

72. It is also clear that the two organisations have remained in close contact about their roles in responding to, and handling, the situation that has arisen on the land – the Council’s main concern being the enforcement of the planning laws, and the EPA’s being possible offences against environmental protection laws. In support of the present prosecutions, the EPA communicated formally with Council to obtain information and evidentiary materials in Council’s possession (e.g. Exhibit P12, tab 48).

73. The Court sees (1) nothing improper in collaboration between the local government authority and the relevant statutory regulator, nor (2) any relevance in the identity of the original informant. Also (3), the Court has no evidence of “salting”. However, construction of the instruments about which the defendants complain ([6] – [7] above) has obviously been a key issue in the trial.

The related Class 4 proceedings

74. Council had contended, inter alia, that many conditions of the DC had been breached (see Exhibit P8, tab 32), and its Class 4 proceedings were commenced on 23 July 2010. In turn, FEDS brought its own Class 4 proceedings against the Council (11/40062) in January 2011.

75. The Council’s amended Class 4 summons sought declaratory and injunctive relief, under s 124 of the Environmental Planning and Assessment Act 1979 (“EPA Act”), s 252 of the POEO Act, and s 336 of the Water Management Act 2000 (“the WM Act”), in respect of alleged breaches of those Acts, arising from the unlawful deposit of partially contaminated fill on Foxman’s Valley.

76. FEDS’ proceedings sought declaratory relief that a 2010 DA, submitted in respect of Foxman’s Valley, was incorrectly classified by Council as “designated development”, namely “waste management facilities or works”, as defined in the EPA Act and Regulation.

77. The two Class 4 matters were heard together between 28 February and 21 July 2011, and decided in a mammoth judgment delivered by Pepper J on 22 May 2013 (Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 5); Foxman Environmental Development Services Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 68). The Council was granted the declaratory and injunctive relief it sought, and FEDS’ summons was dismissed.

78. Costs questions, site remediation, and other issues (including possible contempt of the orders made in 40598), have brought one or both Class 4 matters back before Pepper J on several occasions since. Foxman told the Court, during the Class 5 hearing before me, that he will be seeking leave to appeal Pepper J’s decision (Tpp43 – 44). In the meantime the Council’s Class 4 proceedings are due back before Pepper J on Monday 27 July 2015.

79. While I have avoided having any regard to Her Honour’s judgments in those Class 4 proceedings, much of the evidentiary material apparently relied upon in those proceedings has been brought forward, and/or updated, and relied upon again, in the present Class 5 proceedings.

D: “Waste”

80. A common element of all six charges is the need for the prosecutor to prove beyond reasonable doubt that the fill material transported to, and stored and/or disposed of at, Foxman’s Valley was “waste”.

81. As distinct from the definition advanced by defendants ([6] above), the Court must have regard to the various definitions, and other relevant provisions, in relevant parts of the “waste regulatory regime”.

82. The Court of Criminal Appeal also discussed the definition of “waste” in the POEO Act, and its history – see Shannongrove Pty Ltd v Environment Protection Authority [2013] NSWCCA 179; 84 NSWLR 668, especially at [5] – [24] and [40] – [41]. That discussion was “embraced by Pain J” in Director-General, Department of Planning and Infrastructure v Glass Recovery Services Pty Limited [2015] NSWLEC 49, at [73 – [78].

83. I turn, therefore, to collect the various relevant provisions.

The POEO Act

84. The dictionary of the POEO Act, defines the terms “waste” and “waste facility” (Exhibit P2, tab 13):

waste includes:

(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.

waste facility means any premises used for the storage, treatment, processing, sorting or disposal of waste (except as provided by the regulations).

85. In accordance with ss 5(1) and 48, and cls 39 and 42 of Sch 1 to the POEO Act (Exhibit P2, tab 15), “waste disposal by application to land”, and “waste storage”, are “scheduled activities”, for which a licence is required for any premises, in a “regulated area” (defined to include Wollondilly Shire), at which such an activity is carried on:

39   Waste disposal (application to land)

(1)   This clause applies to waste disposal by application to land, meaning the application to land of waste received from off site, including (but not limited to) application by any of the following methods:

(a)   spraying, spreading or depositing on the land,

(b)   ploughing, injecting or mixing into the land,

(c)   filling, raising, reclaiming or contouring the land.

(2)   However, this clause does not apply to an activity that involves any of the following:

(a)   sites inside the regulated area that, over any period of time, receive from off site a total of no more than 200 tonnes of the following waste (and no other waste):

(i)   building and demolition waste only,

(ii)   building and demolition waste mixed with virgin excavated natural material,

(b)   sites outside the regulated area that, over any period of time, receive from off site a total of no more than 200 tonnes of the following waste (and no other waste):

(i)   building and demolition waste only,

(ii)   building and demolition waste mixed with virgin excavated natural material,

being waste generated inside the regulated area,

(c)   sites outside the regulated area that, over any period of time, receive from off site a total of no more than 20,000 tonnes of the following waste (and no other waste):

(i)   building and demolition waste only,

(ii)   building and demolition waste mixed with virgin excavated natural material,

being waste generated outside the regulated area,

(d)   sites that receive from off site no more than 5 tonnes of waste tyres per year or 500 waste tyres in total over any period (and no other waste),

(e)   sites where only virgin excavated natural material is received from off site and applied to land,

(f)   sites that:

(i)   are outside the regulated area, and

(ii)   are owned and operated by or on behalf of a local council, and

(iii)   were in existence immediately before 28 April 2008, and

(iv)   were not required to be licensed before 28 April 2008, and

(v) had, before 28 April 2008, provided the details required under clause 47 of the Protection of the Environment Operations (Waste) Regulation 2005, and

(vi)   receive from off site less than 5,000 tonnes per year of general solid waste (putrescible), general solid waste (non-putrescible), clinical and related waste, asbestos waste, grease trap waste or waste tyres (or any combination of them), but only if waste has been generated outside the regulated area.

(3)   The activity to which this clause applies is declared to be a scheduled activity.

(4)   For the purposes of this clause, 1 litre of waste is taken to weigh 1 kilogram.

...

42   Waste storage

(1)   This clause applies to waste storage, meaning the receiving from off site and storing (including storage for transfer) of waste.

...

(3)   The activity to which this clause applies is declared to be a scheduled activity if:

(a)   more than 5 tonnes of hazardous waste, restricted solid waste, liquid waste or special waste (other than waste tyres) is stored on the premises at any time, or

(b)   more than 50 tonnes of waste tyres or 5,000 waste tyres is stored on the premises at any time, or

(c)   more than 2,500 tonnes or 2,500 cubic metres, whichever is the lesser, of waste (other than waste referred to in paragraph (a) or (b)) is stored on the premises at any time, or

(d)   more than 30,000 tonnes of waste (other than waste referred to in paragraph (a) or (b)) is received per year from off site:

(4)   For the purposes of this clause, 1 litre of waste is taken to weigh 1 kilogram.

86. Part 3 of Schedule 1 of the POEO Act includes the following provisions:

Division 1 Waste classifications

49 Definitions of waste classifications

(1)   In this Schedule:

special waste means any of the following:

(a)   clinical and related waste,

(b)   asbestos waste,

(c)   waste tyres,

(d)   anything that is classified as special waste pursuant to an EPA Gazettal notice.

(2) Despite subclause (1), in this Schedule, any waste that is classified as one of the following classes of waste, in accordance with an immobilised contaminants approval granted under Part 10 of the Protection of the Environment Operations (Waste) Regulation 2014, is taken to be waste of that class:

(a)   general solid waste (non-putrescible),

(b)   general solid waste (putrescible),

(c)   hazardous waste,

(d)   restricted solid waste,

(e)   special waste.

...

Division 2 Other definitions

50   Other definitions

(1)   In this Schedule:

asbestos means the fibrous form of those mineral silicates that belong to the serpentine or amphibole groups of rock-forming minerals, including actinolite, amosite (brown asbestos), anthophyllite, chrysotile (white asbestos), crocidolite (blue asbestos) and tremolite.

asbestos waste means any waste that contains asbestos.

...

building and demolition waste means unsegregated material (other than material containing asbestos waste or liquid waste) that results from:

(a)   the demolition, erection, construction, refurbishment or alteration of buildings other than:

(i)   chemical works, or

(ii)   mineral processing works, or

(iii)   container reconditioning works, or

(iv)   waste treatment facilities, or

(b)   the construction, replacement, repair or alteration of infrastructure development such as roads, tunnels, sewage, water, electricity, telecommunications and airports,

and includes materials such as:

(c)   bricks, concrete, paper, plastics, glass and metal, and

(d)   timber, including unsegregated timber, that may contain timber treated with chemicals such as copper chrome arsenate (CCA), high temperature creosote (HTC), pigmented emulsified creosote (PEC) and light organic solvent preservative (LOSP),

but does not include excavated soil (for example, soil excavated to level off a site prior to construction or to enable foundations to be laid or infrastructure to be constructed).

...

The Waste Guidelines

87. The NSW Government published Waste Classification Guidelines in April 2008, and revised them in July 2009 (Exhibit P2, tab 20 – “the Waste Guidelines”).

88. The Guidelines adopt “Special Waste” as the first of six “waste classes”, the other five being (p1):

• Liquid waste

• Hazardous waste

• Restricted solid waste

• General solid waste (putrescible)

• General solid waste (non-putrescible)

89. “Special waste” means (pp4 – 5, c.f. cl 49(1) quoted above in [86]) any of the following:

• clinical and related waste

• asbestos waste [as defined in cl 50 quoted above([86])]

• waste tyres.

90. The first step in classifying any waste (p1) requires the establishment of whether it is “special waste due to its contamination with asbestos (i.e. classified as asbestos waste) ...”.

91. The “general classification principles” (p2) include:

•   Where practicable, it is desirable to separate a mixture of wastes before classifying them separately ...

•   If it is not possible to separate wastes, the whole waste must be classified according to the highest class of waste ...

•   If asbestos is mixed with other waste to form asbestos waste, the waste must continue to be assessed in accordance with these guidelines to enable the disposal of the asbestos waste at an appropriate waste facility. Asbestos waste must then be managed to meet the management and disposal requirements of both asbestos and the other class of waste with which it is mixed (if any).

92. The Guidelines adopt all three definitions I have quoted above ([86]) from cl 50 (i.e. asbestos, asbestos waste, and building and demolition waste). They also define “virgin excavated natural material” (“VENM”) as follows (p9):

Virgin excavated natural material means natural material (such as clay, gravel, sand, soil or rock fines):

•   that has been excavated or quarried from areas that are not contaminated with manufactured chemicals, or with process residues, as a result of industrial, commercial, mining or agricultural activities, and

•   that does not contain sulfidic ores or soils, or any other waste,

and includes excavated natural material that meets such criteria for virgin excavated natural material as may be approved from time to time by a notice published in the NSW Government Gazette.

93. They also include detailed information (pp12 – 22, and 24 – 25) regarding determination of a waste’s classification by chemical means.

The EPA Regulation

94. Schedule 3, cl 32 of the EPA Regulation provides:

32 Waste management facilities or works

(1)   Waste management facilities or works that store, treat, purify or dispose of waste or sort, process, recycle, recover, use or reuse material from waste and:

(a)   that dispose (by landfilling, incinerating, storing, placing or other means) of solid or liquid waste:

(i)   that includes any substance classified in the Australian Dangerous Goods Code or medical, cytotoxic or quarantine waste, or

(ii)   that comprises more than 100,000 tonnes of "clean fill" (such as soil, sand, gravel, bricks or other excavated or hard material) in a manner that, in the opinion of the consent authority, is likely to cause significant impacts on drainage or flooding, or

(iii)   that comprises more than 1,000 tonnes per year of sludge or effluent, or

(iv)   that comprises more than 200 tonnes per year of other waste material, or

(b)   that sort, consolidate or temporarily store waste at transfer stations or materials recycling facilities for transfer to another site for final disposal, permanent storage, reprocessing, recycling, use or reuse and:

(i)   that handle substances classified in the Australian Dangerous Goods Code or medical, cytotoxic or quarantine waste, or

(ii)   that have an intended handling capacity of more than 10,000 tonnes per year of waste containing food or livestock, agricultural or food processing industries waste or similar substances, or

(iii)   that have an intended handling capacity of more than 30,000 tonnes per year of waste such as glass, plastic, paper, wood, metal, rubber or building demolition material, or

(c)   that purify, recover, reprocess or process more than 5,000 tonnes per year of solid or liquid organic materials, or

(d)   that are located:

(i)   in or within 100 metres of a natural waterbody, wetland, coastal dune field or environmentally sensitive area, or

(ii)   in an area of high watertable, highly permeable soils, acid sulphate, sodic or saline soils, or

(iii)   within a drinking water catchment, or

(iv)   within a catchment of an estuary where the entrance to the sea is intermittently open, or

(v)   on a floodplain, or

(vi)   within 500 metres of a residential zone or 250 metres of a dwelling not associated with the development and, in the opinion of the consent authority, having regard to topography and local meteorological conditions, are likely to significantly affect the amenity of the neighbourhood by reason of noise, visual impacts, air pollution (including odour, smoke, fumes or dust), vermin or traffic.

95. Clause 38 of that schedule defines “waste” as follows:

waste includes any matter or thing whether solid, gaseous or liquid or a combination of any solids, gases or liquids that is discarded or is refuse from processes or uses (such as domestic, medical, industrial, mining, agricultural or commercial processes or uses). A substance is not precluded from being waste for the purposes of this Schedule merely because it can be reprocessed, re-used or recycled or because it is sold or intended for sale.

The Waste Regulation

96. Clause 3B of the Waste Regulation prescribes (Exhibit P2, tab 14) the following circumstances for the purpose of paragraph (d) of the above definition of “waste”:

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.

...

97. Clause 42 of the Waste Regulation (Exhibit P2, tab 19) provided as follows:

42   Special requirements relating to asbestos waste

(1)   This clause applies to any activity that involves the transportation, disposal, re-use or recycling of any type of asbestos waste, regardless of whether the activity is required to be licensed.

(2)   A person who carries on an activity to which this clause applies must comply with the requirements specified in this clause in relation to the activity concerned.

Maximum penalty: 400 penalty units in the case of a corporation, 200 penalty units in the case of an individual.

(3)   The requirements relating to the transportation of asbestos waste are as follows:

(a)   bonded asbestos material must be securely packaged at all times,

(b)   friable asbestos material must be kept in a sealed container,

(c)   asbestos-contaminated soils must be wetted down,

(d)   all asbestos waste must be transported in a covered, leak-proof vehicle.

(4)   The requirements relating to the off site disposal of asbestos waste are as follows:

(a)   asbestos waste in any form must be disposed of only at a landfill site that may lawfully receive the waste,

(b)   when asbestos waste is delivered to a landfill site, the occupier of the landfill site must be informed by the person delivering the waste that the waste contains asbestos,

(c)   when unloading and disposing of asbestos waste at a landfill site, the waste must be unloaded and disposed of in such a manner as to prevent the generation of dust or the stirring up of dust,

(d)   asbestos waste disposed of at a landfill site must be covered with virgin excavated natural material or other material as approved in the facility’s environment protection licence:

(i)   initially (at the time of disposal), to a depth of at least 0.15 metre, and

(ii)   at the end of each day’s operation, to a depth of at least 0.5 metre, and

(iii)   finally, to a depth of at least 1 metre (in the case of bonded asbestos waste or asbestos-contaminated soils) or 3 metres (in the case of friable asbestos material) beneath the final land surface of the landfill site.

(5)   A person must not cause or permit asbestos waste in any form to be re-used or recycled.

(6)   In this clause:

bonded asbestos material means any material (other than friable asbestos material) that contains asbestos.

friable asbestos material means any material that contains asbestos and is in the form of a powder or can be crumbled, pulverised or reduced to powder by hand pressure when dry.

98. Much of cl 42 has been adapted in the 2014 POEO (Waste) Regulation, which provides penalties for breach of new cl 81, which re-enacts cl 42(5).

Exemptions

99. Pursuant to cls 51 and 51A of the Waste Regulation, the EPA has the power, in respect of material falling under paragraph (d) of the definition of “waste” in the Dictionary, to grant an exemption, either general or specific, that relieves a person or class of persons from complying with the licensing requirements for premises-based scheduled activities, and for contributions payable by a licensee of a waste facility (see s 48 and 88 of the POEO Act).

100. Regulations 51 and 51A provide as follows (Exhibit P2, tab 16):

51 General provisions relating to exemptions

(1)   The EPA may grant an exemption under this clause if authorised to do so by any provision of the Act or by another provision of this Regulation.

(2)   An exemption may be granted in relation to:

(a)   any person or class of persons, or

(b)   any premises or class of premises, or

(c)   any area or class of areas, or

(d)   any activity or class of activities, or

(e)   any other matter or thing or class of matters or things.

(3)   An exemption granted under this clause may be a general exemption or a specific exemption.

(4)   A general exemption may be given by way of notice published in the Gazette. A specific exemption may be given after an application is made to the EPA.

...

(8)   A general exemption may be amended or revoked by the EPA by way of notice published in the Gazette.

...

51A Exemptions relating to certain waste

(1)   This clause applies to:

(a)   waste that is waste by virtue of paragraph (d) of the definition of waste in the Dictionary to the Act, and

...

(2)   The EPA may from time to time grant an exemption under clause 51 that exempts a person or class of persons from any one or more of the following provisions in relation to an activity or class of activities relating to waste to which this clause applies:

(a)   the provisions of sections 47–49 and 88 of the Act,

(b) the provisions of Schedule 1 to the Act, either in total or as they apply to a particular type of activity,

(c) the provisions of Part 3 and clauses 45 and 47 of this Regulation.

101. Exemptions, and applications made by or on behalf of the defendants for different “resource recovery” exemptions, occupied much time during the trial.

102. The EPA had in place, at all relevant times, a set of “Guidelines on Resource Recovery Exemptions (Land Application)” (Exhibit P25), published in April 2008, and drawn to the defendants’ attention (in a letter to Scimone on 22 January 2009 – Exhibit P17, p31).

103. Samples of material taken from various sites were tested against the applicable “general exemptions” in place at the time, and the defendants made several unsuccessful applications for specific or new general exemptions (Exhibit P17).

104. Of the many exemptions put in place, and published on the EPA website, those general exemptions most relevant to this case first came into force in 2008 or 2009, and have been updated from time to time since. They are:

• The recovered aggregate exemption 2008 (“RAE 2008”) (Annexure ‘J’ to Godbee’s affidavit, and see also Exhibit P2, tab 17);

• The recovered aggregate exemption 2010 (“RAE 2010”) (Annexure ‘G’, and Exhibit P2, tab 18);

• The “continuous process” recovered fines exemption April 2009 (Annexure ‘K’);

• The “continuous process” recovered fines exemption April 2010 (Annexure ‘H’);

• The “batch process” recovered fines exemption April 2009 (Annexure ‘L’); and

• The “batch process” recovered fines exemption April 2010 (Annexure ‘I’).

105. Foxman also tendered (Exhibit D9), over the prosecutor’s objections, “The ‘continuous process’ recovered fines order 2014”, and “The recovered aggregate order 2014”, both of which came into force well outside the charge periods, and were relied on by Foxman to show the adjustments made over time to the 2010 exemptions, and to demonstrate the continued omission of specific testing requirements for asbestos (Tpp606 – 611).

106. For the defendants to successfully rely on any exemption applicable and relevant at the material time, they have to establish, on the balance of probabilities (Evidence Act 1995 s 141(2)), that the fill material or any part of it meets the terms of the exemption.

107. I accept the prosecutor’s submissions that it does not bear the onus of proving the reverse: see (1) Weller v El Homsi [2009] NSWSC 282; 74 NSWLR 443, (2) the authorities discussed in that case by Kirby J, and also (3) the decision of Bellew J to follow Kirby J’s El Homsi approach, when deciding Director of Public Prosecutions v Sadler [2013] NSWSC 718.

108. However, in any event, the prosecutor pointed to nine proven facts which it says show that none of the defendants’ fill material met the exemptions upon which the defendants relied. Apart from the technical and expert evidence to that effect, there were admissions, by and on behalf of the defendants, who argued throughout the case:

1. that the requirements of the NSW regulatory regime and of the general exemptions are “too tight”, comparing adversely with standards adopted elsewhere (Tpp946 – 947, 957);

2. that related entities should not be required to certify compliance to one another (Exhibit P11, tab 24, p2; and Tp988, L39; p1009, L44; p1010, L3; and p1072, L18);

3. that all defendants, acting through Foxman, did “everything conceivable” to minimise contamination of material (Tp949, L33); and

4. that either the moved material complied with the relevant exemptions (Tp951), or any breaches of the specified maximums were but “slight, non-material variation(s)” (Exhibit P11, tab 24, p2), which should have justified the grant of specific exemption(s), which the EPA refused to do.

109. “Recovered aggregate” is defined, in the relevant exemptions from 2008, as “material comprising of concrete, brick, ceramics, and asphalt processed into an engineered material”, but “does not include refractory bricks or associated refractory materials, or asphalt that contains coal tar”. The 2014 order added “natural rock” to the list of material covered.

110. The defendants initially claimed that some of the materials delivered to the FEDS land attracted the protection of one of the fines exemptions. There are general exemptions for “Continuous process recovered fines” and “Batch process recovered fines”, both of which define “fines” in terms of:

a soil or sand substitute with a typical maximum particle size of 9.5 mm that is derived from the processing of mixed construction and demolition waste including residues from the processing of skip bin waste.

[In the “continuous” exemption that word is inserted before “processing” where it first appears in the definition.]

111. The prosecution case focussed on the aggregate exemptions.

112. The RAE 2008 commenced on 29 August 2008. It is a General Exemption under Part 6, cls 51 and 51A of the Waste Regulation (see cl 51(3), and [100] above).

113. Section 5 provided:

In this Notice of Exemption:

5.1.   The responsible person listed in Column 1 of Table 1 is exempt from the provision/s listed in Column 2 of that table but only in relation to activities involving the relevant waste and only where the responsible person complies with the conditions referred to in Column 3 of the table.

However, this Notice of Exemption does not exempt the responsible person from the provisions specified in Column 2 where the relevant waste is received at premises that are, despite this exemption, required to be licensed for waste disposal (application to land) activities under the provisions of the Act.

5.2. Where a responsible person complies with the conditions of this Notice of Exemption, the activity referred to in Schedule 1 from which that person is exempt is taken to be a non-scheduled activity for the purposes of the Act.

Table 1

Column 1	Column 2	Column 3
Responsible person	Provisions from which the responsible person is exempt	Conditions to be met by the responsible person
Processor	section 48 of the Act in respect of clause 39 of Schedule 1 to the Act	all requirements specified in section 7 and 8
Consumer	section 48 of the Act in respect of clauses 34, 39, 41 and 42 of Schedule 1 to the Act section 88 of the Act clause 47 of the Regulation	all requirements specified in section 7 and 9

114. Section 6 included the following relevant definitions, as well as of “Recovered aggregate” (which I quoted above at [109]):

Characterisation means sampling and testing that must be conducted on the recovered aggregate for the range of chemicals and other attributes listed in Column 1 of Table 2.

Composite sample means a sample that combines 5 discrete sub-samples into a single sample for the purpose of analysis.

Consumer means a person who applies, causes, or permits the application to land of recovered aggregate within the definitions of "application to land" in accordance with the Act. The consumer may be the landholder responsible for the land to which recovered aggregate is applied.

Once-off sampling means sampling and testing that must be conducted only once on a batch, truckload or stockpile of recovered aggregate that is not repeated, reproduced and does not form part of a continuous process.

Processor means a person who processes, mixes, blends, or otherwise incorporates recovered aggregate into a material for supply to a consumer.

[Recovered aggregate] ...

Relevant waste means recovered aggregate that meets the requirements of Section 7.

Routine sampling means sampling and testing that must be conducted on the recovered aggregate on an ongoing and regular basis.

115. Section 7 imposed the following “General conditions”:

7.1.   The chemical concentration or other attribute of the recovered aggregate listed in Column 1 of Table 2 must not exceed any of the following:

7.1.1.   the absolute maximum concentration or other value listed in Column 4 of Table 2,

7.1.2.   for characterisation or once-off tests, the maximum average (based on the arithmetic mean) concentration or other value listed in Column 2 of Table 2, and

7.1.3.   for routine tests, the maximum average (based on the arithmetic mean) concentration or other value listed in Column 3 of Table 2.

7.2.   The recovered aggregate can only be applied to land for road making activities, building, landscaping and construction works. This approval does not apply to any of the following applications:

7.2.1.   Construction of dams or related water storage infrastructure,

7.2.2.   Mine site rehabilitation,

7.2.3.   Quarry rehabilitation,

7.2.4.   Sand dredge pond rehabilitation,

7.2.5.   Back-filling of quarry voids,

7.2.6.   Raising or reshaping of land used for agricultural purposes, and

7.2.7.   Construction of roads on private land unless:

(a)   the relevant waste is applied to land to the minimum extent necessary for the construction of a road, and

(b)   a development consent for the development has been granted under the relevant Environmental Planning Instrument (EPI), or

(c)   it is to provide access (temporary or permanent) to a development approved by a Council, or

(d)   the works undertaken are either exempt or complying development.

116. Section 8 set out the conditions that must be met by the designated processor in order for the exemption to apply:

8.1.   The processor must implement procedures to minimise the potential to receive or process waste containing asbestos. These procedures must be formally documented and the records of compliance must be kept for a period of three years.

8.2.   Sampling must be undertaken in accordance with Australian Standard 1141 Methods for sampling and testing aggregates (or equivalent). Sampling and information on sample storage and preparation must be detailed in a written sampling plan.

8.3.   Where the recovered aggregate is generated as part of a continuous process, the processor must undertake characterisation and routine sampling according to the requirements listed in Column 1 and Column 2 of Table 3.

8.4.   Where the recovered aggregate is not generated as part of a continuous process, the processor may undertake once-off sampling of a batch, truckload or stockpile of recovered aggregate according to the requirements listed in Column 3 of Table 3, for the range of chemicals and other attributes listed in Column 1 of Table 2.

8.5.   Where there is a change in inputs that is likely to affect the properties in the recovered aggregate, characterisation must be repeated. Characterisation samples can be used for routine testing and subsequent calculations.

8.6.   Processors must keep a written record of all characterisation, routine and/or once-off test results for a period of three years.

8.7.   Records of the quantity of recovered aggregate supplied to the consumer and either the consumer's name and address or the registration details of the vehicle used to transport the recovered aggregate, must be kept for a period of three years.

8.8.   The processor of recovered aggregate must provide a written statement of compliance to the consumer with each transaction, certifying that the recovered aggregate complies with the relevant conditions of this exemption.

8.9.   The processor of recovered aggregate must make information on the latest characterisation and routine test results available to the consumer.

117. Section 9 imposed some responsibilities upon the designated consumer:

9.1.   Records of the quantity of the recovered aggregate received by the consumer and the suppliers' name and address must be kept for a period of three years.

9.2.   The consumer must land apply the relevant waste within a reasonable period of time.

118. Section 10 introduced “Table 2”, and provided that the exemption would apply to recovered aggregate “only ... where the chemical and other attributes listed in Column 1 comply with the chemical concentrations and other values listed in Columns 2, 3 and 4, ... when analysed according to the test methods in Column 5 ...”.

119. Of particular relevance to the present case are lead, nickel, metal, plaster, and “rubber, plastic, paper, cloth, paint, wood and other vegetable matter”.

Table 2

Column 1	Column 2	Column 3	Column 4	Column 5
Chemicals and other attributes	Maximum average concentration for characterisation (mg/kg ‘dry weight’ unless otherwise specified)	Maximum average concentration for routine testing (mg/kg ‘dry weight’ unless otherwise specified)	Absolute maximum concentration (mg/kg ‘dry weight’ unless otherwise specified)	Test method specified within Section
3. Lead	50	50	100	12.2
7. Nickel	25	Not required	50	12.2
10. Metal	1%	1%	2%	12.4
11. Plaster	0.25%	0.25%	0.5%	12.4
12. Rubber, plastic, paper, cloth, paint, wood and other vegetable matter	0.1%	0.1%	0.2%	12.4

120. Sampling and testing requirements were specified in Table 3, in section 11.

121. To qualify for exemption, the recovered aggregate had to be sampled in accordance with Table 3, which provided:

Table 3

Column 1	Column 2	Column 3
Characterisation frequency	Routine sampling frequency	Once-off sampling frequency
20 composite samples, by taking 1 composite sample from a different batch, truckload or stockpile. This must be repeated every year.	5 composite samples per 4000 tonnes or 5 composite samples per 3 months.	10 composite samples per 4000 tonnes.

122. Section 12 required that all testing be undertaken by NATA-accredited laboratories or their equivalent, and details were provided of the test methods which must be employed to measure the attributes listed in Column 1 of Table 2.

123. Importantly, there were “Notes” attached to the exemption.

124. Those Notes made clear, inter alia, that:

1. the generator, processor and consumer are responsible to ensure their compliance with the relevant requirements of the most current exemption;

2. the use of exempted material remains subject to other relevant environmental regulations. Specifically the notes say that:

“a person who ... does not meet the special requirements for asbestos waste (clause 42), regardless of having an exemption, is guilty of an offence and subject to prosecution”;

3. any “statement of compliance” must be in writing and must be provided “with each transaction”, taken to mean the contractual agreement between any two parties which specifies the exchange of waste from one party to another;

4. “The consumer should assess whether or not the exempted material is fit for the purpose [for which] the material is proposed to be used and whether this use will cause harm”;

5. “This exemption does not apply to any material received at a premises that is required to be licensed for waste disposal (application to land) activities under the provisions of the Act”, and it “does not removed the need for a site at which processing occurs to be licensed, if required under Schedule 1 of the Act”; and

6. “Regardless of any exemption provided by the EPA, the person who causes or permits the application of the substance to land must ensure the action is lawful and consistent with the development consent requirements of the land”.

125. The 2008 exemption was superseded by the RAE 2010, which commenced on 1 April 2010. Many of the changes made in the terms of the exemption were of little relevance to the present case, but they included:

1. Table 1, Column 2 of the 2010 version exempted consumers from fewer clauses of Schedule 1 to the Act (only cls 39 and 42); and

2. Sections 8.8 and 8.9 of the 2008 exemption ([116] above) were replaced with:

8.8.   The processor of recovered aggregate must provide each consumer with a copy of this exemption and inform them of the consumer responsibilities contained within this exemption. The processor must also provide a written statement of compliance to the consumer with each transaction, certifying that the recovered aggregate complies with the relevant conditions of this exemption.

8.9.   The processor of recovered aggregate must make information on the latest characterisation and routine test results available to the consumer.

126. Some significant changes were made to Table 2 ([119] above). In the 2010 exemption, Table 2 left metal and plaster unchanged from 2008, but revised the specifications for lead, nickel, metal, plaster, and “rubber, plastic, paper, cloth, paint, wood and other vegetable matter” as follows:

Table 2

Column 1	Column 2	Column 3	Column 4	Column 5
Chemicals and other attributes	Maximum average concentration for characterisation (mg/kg ‘dry weight’ unless otherwise specified)	Maximum average concentration for routine testing (mg/kg ‘dry weight’ unless otherwise specified)	Absolute maximum concentration (mg/kg ‘dry weight’ unless otherwise specified)	Test method specified within Section
3. Lead	75	75	150	12.2
7. Nickel	40	Not required	80	12.2
12. Rubber, plastic, paper, cloth, paint, wood and other vegetable matter	0.2%	0.2%	0.3%	12.4

127. The Notes to the 2010 RAE remained the same as in the 2008 version ([124] above).

128. As the 2010 version commenced on 1 April 2010, it applies to only some 56 loads of material (1720.1 tonnes) transported to Foxman’s Valley after that date. The balance of moved material (14,320 tonnes) was transported during the currency of the 2008 version (c.f. [125] above).

129. Most of the substantive provisions of the fines exemptions mirror those of the aggregate exemptions, but the consumer responsibilities in s 9 are as follows:

9.1.   Records of the quantity of the “continuous process” recovered fines received by the consumer and the suppliers' name and address must be kept for a period of three years.

9.2.   The relevant waste must not be applied in or beneath water including groundwater.

9.3.   The consumer must land apply the relevant waste within a reasonable period of time.

130. Also, Table 2 contains a more comprehensive list of chemical and/or other attributes – “pH” is added; “glass, metal and rigid plastics” are grouped together; and there is a specific item for “plastics – light flexible film”.

131. There are some significant differences between “continuous process” (“CP”) and “batch process” (“BP”) fines exemptions. For example, some of the producer’s obligations (under cl 8) are more onerous in the case of CP, and the testing regimes (Tables 2 and 3) are also different. Some further changes were made by the 2010 versions.

132. As between aggregate and fines regimes, the BP fines exemptions alone include a requirement for “validation” of test results, before their provision to a consumer or another processor, and the 2008 and 2010 aggregate exemptions oblige the processor to implement, and formally document procedures to minimize the potential to receive or process waste containing asbestos. The fines regimes also contain higher thresholds for some contaminants, notably lead and nickel.

133. Both aggregate and fines regimes restrict the use of the subject material – fines material can be applied to land for only the purposes of “construction or landscaping”, and recovered aggregate material for only the purposes of “road making activities, building, landscaping, and construction works”. All exemptions include a general condition (7.2.7) in the following terms:

Construction of roads on private land unless:

(a)   the relevant waste is applied to land to the minimum extent necessary for the construction of a road, and

(b)   a development consent for the development has been granted under the relevant Environmental Planning Instrument (EPI), or

(c)   it is to provide access (temporary or permanent) to a development approved by a Council, or

(d)   the works undertaken are either exempt or complying development.

134. The prosecutor is correct (final subs 194 – 197) to point out that the exemptions apply only in relation to paragraph (d) of the dictionary definition of “waste” ([84] above), namely “any processed, recycled, re-used or recovered substance produced wholly or partly from waste that is applied to land ... “, and they exempt producers and consumers in only a limited range of specified matters. The material remains waste (see cl 5.1 – [113] above), and the exempted waste material remains subject to other environmental regulations, in particular the special requirements for asbestos waste, as Special Waste, and the related offence provisions.

135. A material’s particle size “cannot be overlooked” when applying the fines general exemptions (subs 192), and the evidence of the defendants’ own expert, Lau, acknowledged that the defendants’ fill material exhibited particle sizes in excess of the prescribed 9.5 mm (see Exhibit P17, pp103 and 388).

136. In that respect, Lau’s evidence mirrored that given for the prosecutor by Martens and Prifti (see Exhibit D11, Appendix ‘A’, p5 of 5; Exhibit P19, 2.4.1; and Tp554, L17 – p555, L24; p558, L26; and p592, L10), and during his cross-examination, Foxman conceded that point (Tp1117, L1 c.f. his initial position at [110] above).

137. Inability to meet the applicable general exemptions led the defendants to seek either a new general exemption, or a specific waste resource recovery exemption, for the processed material from Banksmeadow.

138. BBR first sought a new general exemption on 10 December 2008 (Exhibit P17, p1). It proposed more generous threshold specifications in respect of some contaminants and foreign materials.

139. When pressed for more information to support the application, Foxman, on behalf of BBR submitted a “modified application (Exhibit P17, p5), seeking a specific exemption for “select fill”, and proposing some particular conditions, which, he said, engaged the then department’s “stated requirement of fit for purpose”. Again, the regulator sought additional information, and, after Foxman’s response, advised him that there were insufficient grounds to proceed with a specific exemption (Exhibit 17, pp9, and 15 – 16). Whittens then argued the Foxman case without success (Exhibit P17, pp 38 – 39).

140. On 2 March 2010, Oakes’s company, Quadro Australia Pty Ltd, made a further application on BBR’s behalf, this time specifically seeking permission to apply the processed waste to land at Foxman’s Valley, and proposing redefinition of “recovered aggregate”. Again the department refused, partly because of inadequate justification for the proposed expansion of the “foreign materials” limits. Oakes sought to negotiate these issues with Prifti, but the regulator decided “that the waste proposed for land application” was not suitable for a Resource Recovery Exemption under clauses 51 and 51A of the Waste Regulations” (Exhibit P19, pp50 – 56).

141. Foxman/Oakes then engaged VDM Consulting to performance test the proposed material for its satisfaction “of the ‘fit for purpose’ concept”, in terms of “fire trail road construction”. VDM concluded that the material was “fit for purpose” (Exhibit P17, pp46 – 47). The department remained unsatisfied, partly because there had not been a “consistent description of the waste material proposed for reuse”, and such significant departures from the established standards had not been justified.

142. On 21 January 2011, Lau’s company, JBS Environmental Pty Ltd (“JBS”) made two separate applications to Prifti on BBR’s behalf, seeking exemption for the application to land of waste materials from Banksmeadow, respectively 20 mm (Exhibit P19, pp381ff), and 50 mm (Exhibit P17, pp96ff) select fill, comprising “gravelly sand, with inclusions of concrete, tile, brick, plastic and timber” (Item 2.1 on pp96, and 381).

143. The supporting test results showed some irregularities for lead, pH and foreign materials (pp104 and 389). JBS disclosed that the testing was of material from Foxman’s Valley, and the Department refused the applications on two grounds (pp376 and 670), namely (1) that it does not issue Resource Recovery Exemptions retrospectively, and (2) that the defendants’ own testing (by JBS) had determined that the waste contained asbestos. Correspondence continued between the defendant and JBS as the Class 4 proceedings progressed.

E: The EPA Investigation

144. Many EPA officers (see [35] above) were involved in the investigation of this matter; all of them took and produced photographs; and several of them took samples of the material on the FEDS site.

145. During his various inspections, Wilson focused on sampling pieces of material, particularly “fibro board”, that he suspected of containing asbestos. The others took samples of the general fill material deposited at Foxman’s Valley so that it could be tested against the various exemptions.

146. After notification of the filling activity on 24 September 2009, Ingham, Wilson and Prifti inspected what became known as the Stockpile 1 area of Foxman’s Valley, with Council officer McEwan, on 30 September 2009.

147. They observed “broken up”, but “different sized materials including brick, concrete, glass, fibre-board, wood and plastic” (Ingham, par 15a). However, Wilson deposed that the material “had the appearance of being broken up to a relatively uniform size” (Wilson, 22/12/11, par 17).

148. Prifti sampled the processed material, and Wilson the fibreboard material.

149. Prifti took five samples of the processed material, and they were combined to form a “composite sample”, and then tested it against the 2008 RAE. It was found that the material exceeded the absolute maximums prescribed under that exemption in respect of a number of contaminants, namely, lead, plaster and other physical contaminants (Rubber, plastic, paper, cloth, wood and other vegetable matter) (Prifti, Annexure ‘G’).

150. Of the three fibro samples taken by Wilson, one tested positive for asbestos (Exhibit P6, tab 5).

151. On 13 October 2009, Ingham took action to issue Foxman with a notice to provide information, and Foxman (and later his solicitors, Whittens) responded co-operatively, on and after 2 November 2009 (Exhibit P11, tab 3).

152. On 4 November 2009, Ingham and Wilson inspected the BBR facility at Banksmeadow, and discussed with Foxman the appropriate precautions, his record-keeping, and the restrictions on moving/using material non-compliant with exemptions – such material is “waste”, and should not go to Foxman’s Valley. They observed a number of separate stockpiles at the facility, and Foxman indicated that one of the stockpiles contained “the remains of the processed material that was sent down to Foxman’s Valley”. Wilson then took from that stockpile two samples of material which he suspected were asbestos (Ingham, pars 27 – 28). One tested positive (Exhibit P6, tab 8).

153. On 10 November 2009, Ingham caused a notice of clean up action to be issued to FEDS. Foxman, as its sole director, had earlier agreed to comply with such a notice (Ingham, pars 34 – 36). That notice required, relevantly, that no more material be transported to, or moved around, the FEDS site, and also required the implementation of environmental controls to prevent water pollution, arising from the material being placed on the premises, e.g. the installation of a sediment fence (Exhibit P11, tab 7).

154. On 8 January 2010, Wilson and Bowers went to Foxman’s Valley to inspect the sediment controls that had been implemented at the site. Bowers observed that part of Stockpile 1 had given way, and had “gone over” the sediment fence, and that the compromised part of the fence had not been repaired (Bowers, par 9). Wilson took from Stockpile 1 seven samples of material he suspected of containing asbestos. However, only six were submitted for testing, because Wilson later formed the opinion that one of the samples he took did not appear to be asbestos (Wilson, 22/12/11, par 49). Of those six samples, five tested positive for asbestos (Exhibit P6, tab 12).

155. On 22 January 2010, Wilson and Fairhurst went to Foxman’s Valley, to investigate reports of truck activity. Noticing no evidence of the application of further material, they did not enter the site (Wilson, 22/12/11, par 54).

156. On 29 January 2010, Wilson and Fairhurst went to ALS Laboratories, and “seized” some samples sent there by BBR for testing. The EPA compared them with the samples taken at Foxman’s Valley in September 2009. Godbee reported that four out of five of those ALS samples exceeded the absolute maximum thresholds for lead in the 2008 aggregate exemption, and one also exceeded the absolute maximum for Nickel (Godbee, Annexure ‘B’ – see test results Exhibit P6, tab16).

157. On 14 April 2010, McEwan reported the alleged continuing depositing of material, contrary to the EPA Notice (see [153] above), and, on 22 April, Wilson and Godbee inspected both stockpile areas at Foxman’s Valley, and the sediment controls installed pursuant to the EPA Notice.

158. Wilson took a sample of suspected asbestos from Stockpile 1 (Wilson, 22/12/11, par 78). They then moved over to Stockpile 2, and Wilson observed a “brown soil like material”, deposited as a “ramp” at Stockpile 2, mixed with broken bits of glass, wood, brick, rock and roof tiles (pars 82 – 84).

159. Wilson took a further five samples of suspected asbestos pieces from Stockpile 2, and also took some photographs. Godbee took five samples of the fill material deposited at Stockpile 2, near the Evelyns Range Road gates (Godbee par 11).

227. Additionally, Prifti and Martens observed that the entirety of the material was “consistent” – having found asbestos present in part of the material, it can safely be assumed that there would be asbestos present throughout the entire material.

228. Lau agreed that there would be more asbestos present in the material than was actually found. He gave the following evidence in answer to the prosecutor (at Tp759, LL10 – 37):

WITNESS LAU: Look, I accept there’s more - there appears to more asbestos found. I’ve not disputed that there is likely to be the odd fragment of asbestos in the fill material. That’s consistent with what I’ve said.

ENGLISH: But it’s not the odd fragment, is it? It has been - at least Mr Bourne says that piece of vinyl tile he saw or consistently throughout a long area, 345 metres in length, in and around, in this case stockpile 2. Do you accept that?

WITNESS LAU: Yes.

ENGLISH: That would mean that area is contaminated with asbestos, would it not?

WITNESS LAU: Contaminated with asbestos? No, that does not mean it is contaminated with asbestos. That means that asbestos is present but contaminated has a different meaning.

ENGLISH: It’s consistently present within that location, correct.

WITNESS LAU: It appears to be, yes.

ENGLISH: And if that location, according to your evidence, is classified as general solid waste, the existence of that asbestos would mean that that particular area is classed as special waste and should be classed as special waste asbestos waste.

WITNESS LAU: Yes.

230. Foxman alleged before me that his land had been maliciously “salted” with asbestos pieces (see [70] above). His assertions were based on the fact that some asbestos pieces were found on top of virgin natural material, as opposed to recycled building waste, and his view was that the only way that asbestos could have reached that location was if someone deliberately placed it there. Secondly, some of the asbestos pieces found were too large to have been processed at the BBR facility, as all material is placed through a “crusher”, which would have broken up any asbestos materials into smaller pieces.

231. Although Foxman’s self-serving assertions of foul play cannot be categorically excluded, in the absence of any positive evidence, such allegations do not detract from the unequivocal evidence that the material transported to the site contained asbestos pieces, and so all of that material on the land is “special waste – asbestos waste”.

232. I, therefore, find on this basis alone, that RAEs 2008 and 2010 do not apply to the material.

233. Even if I am wrong on this, I am satisfied that the material would not be covered by an exemption, as it failed in material respects to meet a number of conditions of exemptions argued to apply.

234. I have discussed the various exemptions and their relevant conditions in detail above (at [99] – [143]), and will not repeat that discussion here.

235. Lau and Martens tested the material against the prescribed contaminant limits in the RAEs, and both found exceedences of both the lead, and foreign materials limits.

236. Lau took samples from various locations which he said were representative of the entire body of material (Tp749, LL37 – 39), in order to characterise the material.

237. He sampled in accordance with the frequency stipulated in the RAEs, which required 10 samples per 4000 tonnes of material (Exhibit D11, p5). The results revealed that two of the sample sites had lead levels that exceeded the absolute maximum concentration allowable for lead (150 mg – 2010 RAE and 100 mg/kg – 2008 RAE), namely, JSB 03 – 160 mg/kg and JSB 28 – 200 mg/kg. He also found that two sample sites exceeded the absolute maximum for foreign materials (0.2% – 2008 RAE and 0.3% – 2010 RAE), namely, JSB 18 – 0.41% and JSB 27 – 0.36%.

238. Those results (Exhibit D11, table 2) also revealed that the average concentration of lead across all the sample sites was 82mg/kg, exceeding the maximum average concentration prescribed in the RAEs (50mg, in the 2008 RAE, and 75 mg, in the 2010 RAE).

239. Lau opined that only those portions of material that exceeded the absolute maximum concentrations did not meet the RAE requirements, and that the remainder of the material (95%) did meet the exemptions. He recommended that those portions should be removed from the site and deposited at licenced landfill (Exhibit D11, p 19). That report was drafted in the context of the Class 4 proceedings, in which removal of the material, and remediation of the land, were in issue.

240. In the context of these Class 5 proceedings, Lau conceded that the only way to view the material was as one “whole”, and not “cherry pick” which parts of the material complied or did not comply with the RAEs. He gave the following evidence to the prosecutor (Tp846, LL17 – 34):

ENGLISH: You were asked some questions yesterday by Mr Foxman about the view in your report in-chief that you said 95% of the material passed the recovered aggregate exemption.

WITNESS LAU: Yes.

ENGLISH: You've since moved on from that view, have you not, and you now accept that all the material at Forman's (sic) Valley fails to meet the recovered aggregate exemption?

WITNESS LAU: If you assess the materials as a whole..(not transcribable)..yes.

ENGLISH: For the purposes of this proceeding, because we're not looking at discretionary order such as whether and how parts of it can be removed, you'd accept that's the only way it can be viewed.

WITNESS LAU: Yes.

241. Martens compared the test results of 55 composite samples (40 taken by Lau and 15 of his own) to the RAEs (Exhibit P19, p15), and determined that none of the material met the RAE specifications, because they exceeded the average maximum concentration for lead. His own samples revealed an average lead concentration of 99.2 mg/kg.

242. Unlike Lau, Martens opined that none of the material met the RAEs. The following concurrent evidence reveals their divergent interpretation of the results (Tp755, LL1 – 34):

WITNESS LAU: Well, you put to me the question, if you look at the material as - as whole then absolutely. The numbers means that the whole of the material doesn't meet the exemption. But, you know, if you look a bit deeper and understand how this material is created it's not that it comes from a single site. The source of those materials - I don't know the answer to this but it would be many multiples of different sites and origins. The characteristics of the material from the first site that arrived at the recycling yard versus the second site verse the hundred and second site. It's not necessarily that they're all uniform. So, the notion that one or two bad loads makes all the material fail just - it doesn't line up with how the material was processed - like, how the material came into existence.

ENGLISH: Do you have a view on that opinion that Mr Lau just expressed, Dr Martins?

WITNESS MARTINS: Which part of the answer?

ENGLISH: That the fill material, and correct me if I'm wrong, might just suffer from the fact that there could've been one or two or a number of bad loads that create what may be more contaminated areas than others within the fill profile.

WITNESS MARTINS: No, not at all. I disagree with that proposition. The fill certainly appeared, on all the inspections that I'd undertaken as well as observations I'd made and data that was collected, that it was really a..(not transcribable)..there were variations between individual sampling sites but there was nothing that stood out that made me think that there was a particular area there at the site which was bad load, so to speak. The photographs - for example, when you look at the photographs of the fill it appears very uniform in character in terms of its colour. You know, its grain - grain-size, chemical composition. It does vary but it is altogether the same, sort of plus or minus from the mean. So, I mean, I do agree that there's probably hundreds of spots as Mr Lau has just said. That really supports the premise that - that it is a whole fill that we should be looking at rather than anything else.

243. In light of the concession later made by Lau (see [240] above), I am satisfied that Martens’ opinion is to be preferred. The imported material, “as a whole”, did not meet RAEs 2008 or 2010. Although not all of the material exceeded the prescribed contaminant limits, parts of it cannot be “cherry picked” for the purposes of compliance with those limits.

244. In addition to the findings of Lau and Martens, ALS testing commissioned by BBR for its own internal operations revealed that the material did not meet the contaminant requirements under either the 2008 or 2010 RAE. The results of those tests (conducted by ALS laboratories), revealed exceedences of contaminant levels in the cases of zinc, copper, wood and other vegetable matter (Exhibit P15 – summary of ALS test results).

245. Is it also material to note that the ALS results also revealed that the maximum average thresholds for lead were exceeded for both RAE 2008 and 2010 (89.27 mg/kg, when the 2008 exemption applied, and 136 mg/kg, when the 2010 exemption applied).

246. Foxman submitted that these test results did not prove that the material transported to and deposited at the land did not meet the exemptions. He said that the ALS testing was used to see if the material needed to be “reworked” to make it compliant with the contaminant levels in the exemptions, and, therefore, those results do not necessarily reflect the material taken out to Foxman’s Valley (see defendants’ written subs pars 45 and 55).

247. He further said that the material tested by ALS was “never used” – and that, accordingly, the only testing the Court could rely upon was the samples taken by investigating officers and the respective experts (Tpp1210 – 1211).

248. However, Foxman himself gave oral evidence that at least some of the material tested, in particular that tested in ALS Work Order ES0916154 (22 October 2009), was transported to, and deposited at, the subject land (Tpp1028 – 1029). That work order revealed that that material, comprising 15 samples, exceeded the maximum average concentration for lead under the RAE 2008, (58.9 mg/kg, c.f. the limit of 50mg/kg – see Exhibit P15). It also exceeded the maximum absolute concentration for wood and other vegetable matter (Exhibit P9, tab 57).

249. I am, therefore, satisfied that the material did not meet the contaminant thresholds prescribed in the RAEs, and that BBR and FEDS are/were not exempt from regulatory requirements in respect of the use of the material.

250. Even if the material were compliant with the contaminant thresholds, BBR and FEDS failed to comply with a number of other conditions of the RAEs, including:

1. Failure to supply written statement of compliance (cll 8.7 and 8.8 (see [116] above); and

2. The material was not used “to the minimum extent necessary”, and in accordance with a valid development consent (cll 7.2.7(a) and (b) – see [115] above).

251. Foxman attempted to answer these failures by asserting that:

1. It was illogical for him to supply a “written statement of compliance” effectively to himself as director of both BBR (“the supplier”), and of FEDS (“the consumer”) (Tp988, L39); and

2. The material was used on the land to the “minimum extent necessary” – (see my finding at [203] above).

252. The prosecutor also alleged that procedures were not implemented to minimise the potential to receive or process waste containing asbestos, as required by condition 8.1 of the RAEs. In response, Foxman claimed that he exercised all due diligence in minimising the risk of asbestos contamination.

253. In that regard, he detailed the operational procedures in place at the Banksmeadow facility, aimed at detecting asbestos and other contaminants. This included an initial “visual inspection” of the truck load from the weigh bridge, a second closer inspection, refusing to accept “suspect loads”, and a further closer inspection once the material had been dumped and spread at the facility. He specifically rejected the prosecutor’s assertion that his staff were not adequately trained in the detection and management of asbestos – his policy was “if in doubt throw it out” (Tp950, L1).

254. A constant theme throughout the proceedings was Foxman’s expressed frustration that, despite doing “all he possibly could” to minimise the risk of asbestos and other contaminants being received and processed at the site, the end product did not meet the contaminant requirements in the exemptions, particularly those relating to lead. He argued that the current lead limits were too low, and that the minimum criteria should actually be 300 mg/kg.

255. In his written submissions (par 3), Foxman said that he:

honestly believed that the exemptions were so restrictive that they ran counter to the express policy that recycling of construction waste should be encouraged within appropriate environmental safeguards … He honestly believed that asbestos was minimised in the material (in accordance with the EPA requirements) at the time of transport and also when used on the land.

256. Although Foxman may have legitimate grievances as a businessman operating in a heavily regulated industry, his objections go to issues of policy, and have no bearing on a criminal trial. His concerns do not detract from the clearly established fact that the material exceeds the strict contaminant thresholds prescribed by the RAEs of 2008 and 2010, nor do they negate his best efforts to minimise the presence of those contaminants.

Finding on “exemptions”

257. For all those reasons, I am not satisfied, on the balance of probabilities, that the defendants had the benefit of any exemption entitling them to (lawfully) deposit the offending material at the subject land.

258. Having answered those two preliminary questions which concerned all the offences charged, I now turn to consider the specific elements of each offence, which can be dealt with fairly concisely, in light of my findings above.

The Dumping Offences

259. FEDS is charged with unlawfully using Foxman’s Valley as a waste facility, a breach of s 144(1) of the Act.

260. Foxman conceded that he had complete control of the actions of FEDS giving rise to the charge, and that, if FEDS were to be found guilty of a breach of s 144(1), he would also be guilty, by virtue of s 169(1).

261. The elements of which I must be satisfied beyond reasonable doubt to find FEDS guilty of the dumping offence are:

1. The defendant is the owner or occupier of the land;

2. The defendant used the land as a waste facility; and

3. The land cannot be used as a waste facility.

262. I turn to each of these elements in turn.

FEDS is the owner of the land

263. There is no dispute about this element.

264. FEDS became the owner of the land on 24 April 2009, and its registered proprietor on 21 May 2009. At the time of the hearing, FEDS was still the registered proprietor of the site.

The defendants used the land as a waste facility

265. The prosecutor is not required to demonstrate that the use of the Land was for the purpose of a waste facility, merely that, in the circumstances, there was such as use: Environment Protection Authority v Hardt [2006] NSWLEC 438; 148 LGERA 61, at [107].

266. I am satisfied beyond reasonable doubt that the land was so used by FEDS, for the following reasons.

267. It is common ground that the material, which is found above to be “waste” under the POEO Act, was deposited in stockpiles, and then manoeuvred on the land to make roads.

268. This conduct constituted “waste disposal by application to land”, pursuant to cl 39 of Sch 1 of the POEO Act (see [85] above), as the material was applied to the land through a combination of (a) depositing, (b) filling, and (c) contouring. Foxman (Tp971, LL24 – 50), Martens and Lau (Tp740, LL38 – 46), all gave evidence confirming that those activities took place on the land.

269. Those activities constitute the use of the land as a “waste facility”, as the “premises [were] used for the …disposal of waste…” (see above at [84]).

270. The premises were also used as a “waste facility”, in that the land was used “for the storage … of waste” (see again [84] above). Clause 42 of Sch 1 of the POEO Act identifies “waste storage” as a scheduled activity, being the receiving from off-site and storing (including storage for transfer) of more than 2,500 tonnes of waste at any time (see [85] above). The evidence of investigating officers and experts clearly proves that this activity took place in this case (see [146]ff above).

271. The defendants admitted, through Lau, that, at a minimum, (a) 600 tonnes of General Solid Waste was disposed of at the land (Exhibit D11, p19); and (b) between 350 – 850 tonnes of asbestos waste was disposed of at the land (Tp 761, L 34 –p 762, L 5).

272. I conclude from this evidence and admissions that the land was used by FEDS as a “waste facility”, as defined in the POEO Act.

The Land cannot lawfully be used as a waste facility

273. As both the disposal of waste by application to land (cl 39, Sch 1), and the storage of waste (cl 42, Sch 1), are scheduled activities, it was necessary that an EPL authorise those activities (s 48 POEO).

274. There was no such EPL (Exhibit P3, tab 3), nor was FEDS exempted from the requirement for one, by virtue of a general or specific exemption (see [210] – [258] above).

275. Accordingly, I am satisfied beyond reasonable doubt that the land could not lawfully be used as a “waste facility”.

Findings on Charge 1

276. Having found all the elements proved beyond reasonable doubt, I am satisfied that FEDS is guilty of a breach of s 144(1) of the POEO, in that it used the land as a waste facility without lawful authority.

Foxman’s liability, as a director, for the dumping offence (Charge 2)

277. In certain prescribed circumstances, officers of a company that contravenes the POEO Act will also be guilty of the same breach (see s 169(1), at [22] above).

278. Biscoe J in Director-General, Department of Environment and Climate Change v Jack and Bill Issa Pty Ltd (No 5) [2009] NSWLEC 232; 172 LGERA 225 at [79], [82] – [83], discussed the legal principles surrounding the liability of corporate defendants for the conduct of its directors/employees, these principles are relevant in the attribution of liability to individuals for the conduct of corporations (emphasis mine and citations omitted):

79 A company can only act through living persons. In determining whether criminal liability should be attributed to a company for the conduct of a person, a distinction has been drawn between, on the one hand, a person who is the embodiment of the company because, often, he is its relevant “directing mind and will” and, on the other hand, an agent or servant for whom the company is vicariously liable. The former represents an organic theory of liability, the latter an agency theory of liability. The distinction is particularly significant for offences in which mens rea is an element where prima facie (absent a contrary legislative intention) a principal is not vicariously responsible for the acts of agents …That inhibition is absent in strict liability offences because mens rea is not an element:

…

82 Although the formula “directing mind and will” is often the most appropriate description of the person designated by the relevant rule attributing personal conduct to a company, that is not so in all cases. The real question is, on the proper construction of the statute, whose act is intended to count as the act of the company?

…

83 The act of a high-level employee or director may count as the act of the company because they represent the company’s directing mind and will. But even the act of a low-level employee may count if that is required by the terms of the offence and the achievement of the policy objectives of the statute…Conduct of low-level employees, who did not represent the company’s directing mind and will, has repeatedly been held to be sufficient in cases concerning regulatory offences where legislation regulated a sphere of social or economic activity in the public interest (see the cases reviewed in the ABC Developmental Learning Centres case at first instance at [10] – [14]). They are analogous with the present case.

279. There is absolutely no doubt that Foxman was the “directing mind and will” of FEDS, and that the actions of FEDS are directly attributable to him, and vice versa. Foxman conceded that he had complete control over the actions of FEDS (see [15] above).

280. It was Foxman’s intention that the waste be stockpiled (on the land) for future use on the roads at Foxman’s Valley, and that was a reason for completing the purchase in FEDS’s name (see Exhibit P8, and Tp1115, L38 – p1116, L37).

281. The evidence of Roy Howell is that Foxman directed him as to where “to place and/or spread the material at Foxman Valley” (Exhibit P13, tab JI-7, Q 84). Pursuant to those instructions, Roy Howell directed truck drivers who delivered material to the site from the Banksmeadow facility (Exhibit P6, tab 29, Q96 – 116).

282. For those reasons I am satisfied that Foxman is also guilty of the/a breach of s 144(1) of the POEO Act.

The Transportation Offences

283. BBR is charged with two offences under s 143(1) of the POEO Act for the unlawful transportation of waste, across two charge periods, 1 May – 30 September 2009, and 12 January – 22 April 2010.

284. Again in this instance Foxman conceded that he had complete control of the actions of BBR giving rise to the charges, and that if BBR were to be found guilty of breaches of s 143(1), he is also guilty, by virtue of s 169(1).

285. To find BBR guilty, I must be satisfied of the following elements beyond reasonable doubt:

1. The material was transported to a place;

2. The material transported is “waste” as defined by the POEO Act;

3. The place to which the material is transported is being used as a “waste facility”;

4. The place to which the material is transported cannot be lawfully used as a waste facility; and

5. The defendant caused the material to be so transported.

286. For the reasons that follow, I am satisfied beyond reasonable doubt of each and all of those elements.

The material was transported to a place

287. This element has been proven beyond reasonable doubt in respect to both charge periods.

288. Firstly, Foxman made admissions to McEwan, whose evidence I accept, on 3 May 2010, that all the imported material on the land had “been imported from Botany Building Recyclers”, except for 10 loads of clay which had been deposited on the land by Wollondilly Council (Exhibit P8, par 55).

289. Secondly, weighbridge records from BBR’s Banksmeadow facility show that 5,800.02 tonnes of “Oaks Road Base” had been delivered to a customer identified as “OAKS”, between 1 May 2009 and 30 September 2009 (Exhibit P14, tab 5).

290. Thirdly, Foxman made admissions in his oral evidence that BBR was invoiced by Foxy’s Transport for the costs associated with transporting the fill material to the land in 2009 (Tp963, LL19 – 25).

291. As to the second charge period, BBR’s sales register records loads of “Outgoing Road Base Oaks” and “Outgoing Road Base Farm” that were provided to “FEDS PL” for no fee. This evidence confirms the quantity of material that was transported from the Banksmeadow facility to the land, in the period 12 January – 22 April 2010 (Exhibit P12, tab 39).

292. I am, therefore, satisfied beyond reasonable doubt that the offending material was transported to the land between 1 May and 30 September 2009, and between 12 January and 22 April 2010.

The material transported was “waste”

293. As discussed and found above, I am satisfied that all the material transported to the land in the charge periods was “waste”.

294. In addition, Foxman made an admission that “any material that BBR produced which didn’t meet either the recovered aggregate exemption or a recovered fines exemption, or a specific exemption was waste” (Tp1049, LL32 – 44). None of the material deposited at the land was covered by an exemption (see [210] – [258]), and Foxman admits that the material was waste and should have been deposited at a licensed landfill.

The place to which the material was transported was being used as a waste facility

295. As noted above ([272]), I am satisfied of this element beyond reasonable doubt.

The place to which the material was transported cannot be lawfully used as a waste facility for that waste

296. Again, for the same reasons as are given above ([275]), I am satisfied of this element beyond reasonable doubt.

The defendant caused the material to be so transported

297. I am also satisfied beyond reasonable doubt that BBR “caused” the material to be transported to the land.

298. The meaning of the word “cause” in the criminal context was discussed in Walker Corporation Pty Ltd v Director – General, Department of Environment, Climate Change and Water [2012] NSWCCA 210; 82 NSWLR 12, at [80]. The Court of Criminal Appeal set out some relevant principles including that “the Defendant must engage in a positive act to ‘cause’ something to occur and this act need not be an immediate cause”.

299. The fact that BBR was invoiced by Foxy’s Transport for the costs associated with the transportation of the fill material to the Land in the charge periods (see [290] above) demonstrates that there was a positive act undertaken by BBR, namely, the engagement of a third party to transport the waste, which had the effect of “causing” the transportation of the waste to the land.

300. Further, a number of admissions were made by Foxman concerning the transportation of material to the land in both charge periods. (In respect of the first charge period, see Wilson 22/12/11, par 29.)

301. Foxman admitted that all the material deposited on the land “had been imported from Botany Building Recyclers” (see McEwan 1/10/10 par 55). He also admitted (Tp969, LL35 – 41) that, “on every occasion [he] gave the orders … for the material to be transported from BBR to Foxman’s Valley”, and BBR was invoiced accordingly.

302. Howell also said that Foxman would “ring [him] up and say ‘look, I’ve got the trucks coming out tomorrow with x amounts of loads as filling’” (Exhibit P13, tab JI-7, Q 78). Howell also told Savage (Savage 7/10/10, par 17) that he worked for BBR, and was “expecting more trucks to arrive around midday to deliver more material”.

303. Also, Smith deposed ([9] – [10]) to delivering material from the Banksmeadow facility to the land, at Foxman’s direction.

304. By virtue of s 169(4) of the POEO Act, the intention and purpose of Foxman in directing the delivery of the material to the land is taken to be the state of mind of BBR.

305. For those reasons, I am satisfied beyond reasonable doubt that BBR “caused” the material to be transported to the land. For the same reasons as given in respect of his personal guilt of the dumping offences (see [277] – [282] above), Foxman is guilty of both charges in respect of unlawful transportation of waste under s 143(1).

G: Findings on Guilt

306. Based on all I have written above, I find the defendants guilty of all the offences charged, namely:

1. In relation to Foxman Environmental Development Services Pty Ltd that, from about 1 May 2009 to about 30 September 2013, as the owner of the Land, it used the Land as a waste facility without lawful authority in contravention of s 144(1) of the POEO Act (matter 51244 of 2011).

2. In relation to Botany Building Recyclers Pty Ltd that:

1. between about 1 May 2009 to 30 September 2009 inclusive, it caused waste to be transported to a place that could not lawfully be used as a waste facility, in contravention of s 143(1) of the POEO Act (matter 51251 of 2011); and

2. between about 12 January 2010 to 22 April 2010 inclusive, it caused waste to be transported to a place that could not lawfully be used as a waste facility, in contravention of s 143(1) of the POEO Act (matter 51252 of 2011).

3. In relation to Phillip Foxman, by reason of s 169(1) of the POEO Act that :

1. between about 1 May 2009 to about 30 September 2013, he committed an offence in contravention of s 144(1) of the POEO Act (matter 51249 of 2011);

2. between about 1 May 2009 to 30 September 2009 inclusive, he committed an offence in contravention of s 143(1) of the POEO Act (matter 51253 of 2011); and

3. between about 12 January 2010 to 22 April 2010 inclusive, he committed an offence in contravention of s 143(1) of the POEO Act (matter 51254 of 2011).

H: Orders

307. It will be necessary for a sentencing hearing to be held in due course.

308. For that purpose, all six matters are to be listed before the List Judge on Friday 31 July 2015 to appoint a date or dates for that sentencing hearing, and to make appropriate pre-trial directions.

309. All exhibits and documents marked for identification may be returned to the parties.

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Amendments

03 July 2015 - plea amended to not guilty in coversheet

Evidence Act 1995 s 140(2) amended to Evidence Act 1995 s 141(2) in paragraph 106

Decision last updated: 03 July 2015