Environment Protection Authority v Fletcher - [2001] NSWLEC 104

Reported Decision: 114 LGERA 187

Land and Environment Court

of New South Wales

CITATION: EPA v Fletcher [2001] NSWLEC 104

PARTIES: PROSECUTOR
Environment Protection Authority
DEFENDANT
Leslie James Fletcher

FILE NUMBER(S): 50016 of 2000

CORAM: Sheahan J

KEY ISSUES: Environmental Offences :- land used as a waste facillity without lawful authority - plea of guilty to part of charge

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Environmental Planning and Assessment Act 1979
Environmental Offences and Penalties Act 1989
Local Government Act 1919
Protection of the Environment Operations Act 1997
Waste Minimisation & Management Act 1995 s 64
Waste Minimisation & Management Regulaltion 1996
Hawkesbury City Local Environmental Plan 1989

CASES CITED: Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404;
Brown v EPA & Anor (1992) 78 LGERA 119;
EPA v Daracon Engineering Pty Ltd (1998) 97 LGERA 415;
EPA v Orange City Council (Stein J, 50045 of 1995, 23 June 1995);
Holroyd City Council v Murdoch (1994) 82 LGERA 197;
Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132;
Lizzio & Anor v Ryde Municipal Council (1983) 155 CLR 211;
Proudman v Dayman (1994) 67 CLR 536;
Regina v Dodsworth (1837) 8 Car.&P.467;
R v Minchington (1998) 104 A.Crim.R 502;
R v Olbrich (1999) 199 CLR 270;
R v Thomson [2000] NSWCCA 309;
Surrey County Council v Battersby [1965] 2 QB 194;
Taylor v Hornsby Shire Council (1990) 69 LGRA 281

DATES OF HEARING: 18/12/2000-20/12/2000, 9/02/01

DATE OF JUDGMENT:
05/31/2001

LEGAL REPRESENTATIVES:
PROSECUTOR
Barrister
Mr D Buchanan SC
Solicitors
EPA Legal Branch
DEFENDANT
Solicitor
Mr J Simpson
John Simpson & Co

JUDGMENT:

IN THE LAND AND Matter No: 50016 of 2000
ENVIRONMENT COURT Coram: Sheahan J
OF NEW SOUTH WALES 31 May 2001

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

LESLIE JAMES FLETCHER

Defendant

JUDGMENT

Introduction

1. Leslie James Fletcher is charged with causing, between about 1 July 1996 and 24 November 1998, land, which he owned, to be used as a waste facility, without lawful authority, contrary to s 64(1) of the Waste Minimisation & Management Act 1995 (“Waste Act”).

2. Pursuant to s 8G(1)(b) of the Environmental Offences & Penalties Act 1989 the maximum penalty for the offence charged is $60,000. No daily penalty, and no remediation order under s 14, are sought by the Prosecutor (“EPA”).

3. Section 64(2) of the Waste Act provides that the onus of proving “lawful authority” lies on the person asserting he had it. Mr Buchanan SC, for the EPA, conceded that the onus in this regard was “to the civil standard” (T150 L34-42). R v Olbrich (1999) 199 CLR 270 (at 281).

4. The charge period divides conveniently into four components:

(a) in respect of the period between 1 July 1996 and 29 June 1997, the Prosecutor contends that Fletcher required a development consent from Hawkesbury City Council (“Council”) for his landfill activities (but no Waste Act licence), and did not have such consent. At the end of the hearing the Prosecutor conceded that there is no evidence of any relevant materials being deposited on the subject land prior to September 1996.

(b) in respect of the period between 30 June 1997 and 6 August 1997, the Prosecutor contends that Fletcher required both a development consent and a Waste Act licence, and had neither.

(c) in respect of the period between 7 August 1997 and 7 August 1998, the Prosecutor contends that Fletcher had a development consent, but not a Waste Act licence, and was, in any event, in breach of the consent such as to render his activity unlawful.

(d) in respect of the period between 8 August 1998 and 24 November 1998, the Prosecutor contends that both a development consent and a Waste Act licence were required, and that Fletcher had neither.

5. The Defendant has entered a plea of guilty in respect of the period 1 July 1997 to 2 March 1998.

6. The Defendant:

(a) concedes that he brought more than 200 tonnes of fill per year onto the subject land;
(b) disputes the need for a development consent (“ DC ”) but admits he did not provide all the plans and information required by the relevant DC he obtained;
(c) admits the absence of a Waste Act licence during the period covered by his plea;
(d) admits he was not, during the charge period, and is not currently, engaged in “ agriculture ” , but asserts that his aim was to fix the dam on the land to facilitate an agricultural purpose; and
(e) admits that par (j) of cl 5(1) of the Waste Minimisation & Management Regulations 1996 (“ the Regulation ”) applies to the land.

7. Clause 5(1) of the Regulation, as amended in 1997, provides that waste facilities “of any one or more of the … classes” therein specified are required to be licensed. Subclause (1)(j) refers to a table in the EPA’s “Solid Waste Landfills” guidelines document and affords an exception to “landfill” sites which are “located in an environmentally sensitive or inappropriate” area, but which:

(i) receive no more than 20,000 tonnes per year of coal washing rejects or slags (or both) and are located within 250 metres of any residentially zoned land or within 250 metres of a school or hospital or dwelling not associated with the landfill site, or
(ii) are situated on residential premises or land used principally for farming operations at which the disposal of waste is carried out on site.
(iii) are located within 250 metres of any residentially zoned land (or within 250 metres of a school or hospital or a dwelling not associated with the landfill site) and which are landfill sites that were as at 30 June 1997 in operation and receive no more than 200 tonnes of waste per year.

The major issues between the parties

8. While the matter remained complex, the issues were somewhat narrowed by an exchange of correspondence between the parties in October 2000 (Exhibit P1).

9. In its facsimile letter to Fletcher’s solicitor (Mr Simpson) dated 11 October, the Environment Protection Authority (“EPA”) acknowledged that the partial plea of guilty by the Defendant could be accepted by the court “because the date and extent of the offence and the precise source or sources of requisite lawful authority are matters of particulars rather than elements of the offence”.

10. The letter of 11 October 2000 went on to point out that the EPA would submit to the court that:

· the ambit of “lawful authority” was wider than a Waste Act licence,

· the evidence disclosed the activity of the Defendant commenced from about the middle of 1996,

· the Defendant’s activity required DC,

· a consent was not granted until 8 August 1997,

· the consent was breached, and

· the waste activities were not licensed from 30 June 1997 until 24 November 1998.

11. The Prosecutor’s case is now that the DC was breached in the following respects:

· the waste deposited included timber and other vegetative matter,

· the waste was deposited outside the area to which the consent applied,

· the Defendant failed to supply plans, and details of the nature and origin of the waste, as required by the consent,

· the Defendant failed to comply adequately with the consent conditions regarding erosion and sedimentation control,

· the Defendant carried out works (eg drainage and excavation works) not covered by the DC.

12. Mr Simpson replied at some length on 19 October 2000, making the following points in respect of various time periods (which do not exactly coincide with the “charge periods”):

(a) prior to 30 June 1997 the Defendant had development approval to construct a house and large machinery shed on the premises. It was necessary for him to bring onto the land material suitable for use as roadbase. In addition he also brought onto the property
(i) bricks and besser blocks which he stored on the property for use in the construction of a fence, for which he did not believe he required approval;
(ii) property belonging to him from his previous property, largely associated with his professional work in respect of underground and overhead power lines, i.e. cable drums, cabling, drills, material for the erection of power poles, and the like, as well as a large amount of building material; and
(iii) other items including cupboards, fridges and stoves.

Mr Simpson said:

Our client instructs he had a development application on foot for which he was entitled to bring those items onto his premises … Coulter informed our client that he would have to lodge a development application to fill the dam … he had not started to fill the dam at that time and subsequently lodged a development application. [Coulter was a Council officer].

The Defendant also alleged that Council Officer Hamilton from the Council told him he could “stockpile material on the premises prior to a development application being approved”, and he “continued to bring further bricks and concrete onto the premises for the purpose of continuing his road”.

Accordingly the Defendant claimed to have lawful authority “ for what he was doing ”, up until 30 June 1997, from Coulter and Hamilton.

The Defendant had an honest and mistaken belief of fact that Coulter and Hamilton were competent officers with authority to tell him that it was permissible for him to stockpile material.

(b) between 30 June and 8 August 1997 the Defendant “ continued to bring bricks and concrete for the purposes of his road constructions onto the premises ”. He is unsure as to whether he brought more than 200 tonnes in that period, but apart from any need for a licence from the EPA, he had lawful authority to bring that material onto the property.

(c) in respect to the period 8 August 1997 (altered at the hearing to 1 July 1997 ) until March 1998 , the Defendant pleads guilty to the facts that he did not have lawful authority and that he contravened cl 5(i)(j) of the Regulation. He “ accepts that he contravened the condition of approval number 7 in that he did not immediately submit to the Council for approval an overlands drainage flow path, the proposed contour depth of fill plan and the full dimensions of the fill area ”. He says he submitted a plan to the Council which was not accepted and he later provided one drawn up by surveyors - a matter for mitigation.

(d) after March 1998 , the Defendant says he was informed by EPA officer Playford that he had a requirement for a licence, only if he brought onto the property more than 20,000 tonnes of material - see her letter to the Council to the same effect (now Exhibit F4 ).

After March 1998, the Defendant operated on “ an honest mistaken belief of fact ” - he relied on Playford as a competent employee of the EPA to have given him correct advice he was entitled to believe. “ No mention had been made … either by the EPA or the Council that it was an environmentally sensitive area ”.

sufficient fill on the premises he then brought on clean soil to clean the site up as directed by the Council

13. On 24 November 1998 a search warrant was executed at the subject site. The Defendant claims such action was unnecessary, and also alleges that some incriminating material was “planted” during the search.

The subject land and its planning controls

14. The subject land is an area of some 5.8 acres (T137 L8-10) at 78 Scheyville Road, Oakville or Scheyville (Lot 18 Deposited Plan 817528), which is situated within Hawkesbury City, in an area depicted in the video evidence as quite picturesque (see especially the pre-fill footage in Exhibit P16).

15. It is a “battleaxe” block, accessed off Scheyville Road by the “handle” of the battleaxe, running north to south. The bulk of the subject land is located to the east of the alignment of that “handle” and adjoins Scheyville National Park (proclaimed 3 April 1996). The subject land slopes or falls north to south, and to its north, uphill, east of the access road, is a market garden (see Exhibit P2).

16. Mr Simpson’s submissions note that the land is “badly affected” by a transmission line easement, and he said that Fletcher had bought the land as the low-lying “reject block” of a subdivision and had set out to improve it (See T164, 184-186).

17. Fletcher resides on the subject land, and conducts, from it, his business involving overhead and underground power lines. He intends to grow roses and shrubs on the land (T164).

18. The dwelling house being built on the north-eastern side of the land was nearing completion in the early part of the offence period. The other major improvement on the land was the large shed, in which, it is understood, people were living for a period of time during the construction of the dwelling. There was also a kennel housing a number of dogs, but the Prosecutor says that no agriculture was conducted on the property.

19. The land is zoned Rural 1(c) under Hawkesbury City Local Environmental Plan 1989 (“the LEP”) (Exhibit F3), and the objectives of that zone are:

(a) to primarily provide for a rural residential living style, and

(b) to prevent the establishment of traffic generating development along main and arterial roads.

20. The only developments permissible without development consent are dwelling houses and agriculture (Exhibit F2). Under the Model Provisions 1980, “agriculture” has the meaning ascribed to it in s 514A of the Local Government Act 1919, which included horticulture and the use of land for any purpose of husbandry, including the keeping or breeding of livestock, poultry, or bees, and the growing of fruit, vegetables and the like. Under the LEP cl 5(1) “agriculture” has that meaning, “but does not include animal establishments”. An “animal establishment” is defined as a building or place used or intended for use for the intensive purposes of husbandry, boarding, training or the keeping (or any combination of them) of animals, bird or fish. The evidence would suggest that the Defendant’s greyhound activity was an “animal establishment”, but there is no evidence of other agriculture type use being made of the property. The Defendant claims he was filling a dam, preparatory to, and thus that he was carrying out an activity or development ancillary to, carrying on an agricultural use on the land.

21. Hawkesbury Council also has a Development Control Plan for landfill operations (Exhibit P12), which came into force on 26 February 1997 as “Landfill DCP No.4” (the “DCP”). Landfilling requires consent unless ancillary to a development to be the subject of consent. The DCP does not indicate that landfilling does not require consent if it is ancillary to agriculture. A development application (“DA”) is not required if the work envisaged is turfing and/or topdressing works to a depth of less than 150mm. The DCP sets out comprehensively the requirements of the Council in assessing a DA for landfilling, and defines relevant terms as follows (see Council officer Enders’ affidavit, par 18, and Exhibit SPE 1 to it):

means the filling of land by soil and/or other extractive material that is not contaminated by demolition material, trees or vegetation wastes, waste building material, or any leachate, chemical residue, chemical product or putrescible matter.

“demolition fill”

means fill material containing demolition material, building material or non putrescible garbage matter other than trade waste, and effluent, but excluding asbestos or other toxic materials.

22. The Waste Act includes the following relevant definitions (in s 5):

“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, reprocessing, recovery or purification by a separate operation from that which produced the substance, or
(d) any substance prescribed by the regulations to be waste for the purposes of this Act.

“Waste facility” means any premises used for the storage, treatment, reprocessing, sorting or disposal of waste.

23. The following particulars of “waste” were provided in the EPA’s summons in this case:

(a) Substances which were deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment which degraded that environment; and/or
(b) substances which were discarded, rejected, unwanted, surplus or abandoned; and/or
(c) substances which were otherwise discarded, rejected, unwanted, surplus or abandoned intended for recycling or reprocessing by a separate operation from that which produced the substance.
A substance is not precluded from being waste for the purposes of this Act merely because it can be reprocessed, re-used or recycled.

The Regulation of “Waste” activities

24. The Regulation came into effect on 1 November 1996. Its contents are summarised in a two page gold-coloured leaflet EPA 96/109 (Exhibit F11) indicating licensing provisions and the requirements for reporting and environment protection in respect of non-licensed landfills. The document also sets out the requirements for occupiers of controlled waste facilities who are required to pay a waste levy. A public consultation programme was undertaken and a report prepared on that programme. There was public concern regarding the definition of “hazardous waste” which was seen as too broad. In response the EPA developed a Waste Assessment Guideline which included a modified definition of “hazardous waste”. That document was released for further public consultation and an amendment of the Regulation was foreshadowed. The new waste licensing provisions for hazardous waste were deferred until 30 June 1997.

25. Relevant amendments to the Regulation commenced on 30 June 1997 and were summarised in a “Bulletin” (Exhibit P13) which updated a white-covered booklet published by the EPA entitled “A Guide to the Waste Minimisation & Management Regulation 1996” (Exhibit F9). The “Guide” booklet, as issued in December 1996, covered some 25 pages dealing with the licensing scheme, levies and non-licensed facilities and operators. There was a series of detailed Appendices. The 1997 amendments revised the waste classification system and made some changes to the licensing requirements. Changes were also made to licence fees and to the requirements for non-licensed operations. The last paragraph of the Bulletin pointed out that waste activities, waste transporters and new waste facilities needed to be licensed by 30 June 1997 and the requirements for non-licensed waste activities and waste transporters also started on that date. However, the EPA had a moratorium until 31 July 1997 on licence applications and on the implementation of the requirements for non-licensed hazardous and industrial waste activities and waste transporters.

26. The white Guide booklet, the gold EPA 96/109 leaflet, and the white Bulletin were allegedly sent to Fletcher by EPA officer Playford in May 1998 - see Exhibit P13. The November 1996 version of the white Guide booklet was relied on by the Defendant in cross-examination (Exhibit F9). Another copy of EPA 96/109 was tendered as Exhibit F11. Playford’s “with compliments” slip dated 18 May 1998, together with a green application form for a licence for a control waste facility (EPA WFA 10/96 31/10/96 14.23) were allegedly found during the EPA search, and were tendered by the Defendant (as Exhibit F12).

27. The EPA also has a publication entitled “Environmental Guidelines: Assessment, Classification and Management of Non-Liquid Wastes”. The prosecution relied upon the July 1997 version of that document (Exhibit P14 - red coloured cover) and the defence cross-examined on a copy of that document (Exhibit F12).

28. The red-covered Guidelines deal with the application of the Regulation, cl 5 of which sets out which landfill sites require a licence. That question is determined by the nature of the waste received, the annual volume, and whether the landfill is inside or outside the extended Sydney Metropolitan region, or located within an environmentally sensitive or inappropriate area. Fletcher’s land falls within the “extended Sydney Metropolitan region” which goes as far as Port Stephens, Cessnock, Kiama and so on. In the region all landfill sites must be licensed with the following general exceptions:

1. a landfill site that receives no more than 20,000 tonnes per year of coal washery rejects or slags
2. a landfill site situated on a farm or residential property that is used only for the on site disposal of waste generated by that farm or residence
3. a site used for the disposal of not more than 20,000 tonnes of inert waste where the disposal of the waste is incidental or ancillary to the land being used for a purpose other than a landfill site [ Exhibit P14 , p3, s2.1.3].

29. The EPA also publishes a book called “Environmental Guidelines: Solid Waste Landfills” (Exhibit P15 - golden brown cover) published January 1996. On p 8 Table 1 sets out environmentally sensitive and inappropriate areas for landfilling. The list includes sites located within water courses, or within 40m of a permanent or intermittent water course, the objective being to protect ground water and surface water resources. Other proscribed areas include those reserved or dedicated under the National Parks & Wildlife Act 1974, etc. Sites within 250m of a residential zone or dwelling are inappropriate, the objective being “to control amenity impacts on residents”. Section 3.2.4 (p10 of Exhibit P15) sets out those landfills that will need to be licensed - inert wasteland fills that receive more than 20,000 tonnes of waste per annum, irrespective of where they are located, solid waste landfills that receive more than 5,000 tonnes of waste per annum, irrespective of where they are located, and hazardous waste landfills will need to be licensed irrespective of their location or the quantity of waste they receive. Environmental goals are detailed in the booklet.

A summary of the Prosecutor’s case

30. The Prosecutor’s case is that, during and after at least 1996, large quantities of waste, including quantities of soil and demolition waste, were brought onto the Defendant’s property by waste generators and transporters, until a stop-work order was issued by the Council through Hamilton. The Defendant was persuaded to apply for DC, and did so in early 1997. In his DA he described his development as the filling of an old dam located in the western end of the property. The plan he submitted with the DA showed a filling area extending much further east than the dam, but this discrepancy does not appear to have been noticed when the consent was granted in August 1997 for a period limited to 12 months.

31. The Defendant continued to take or receive on the land large quantities of waste and, contrary to the consent, the waste included timber and other vegetative material. Waste was also deposited outside the area for which the Defendant had consent to continue his filling activity. The Defendant also failed to comply with other conditions, notably those requiring him to supply dockets and plans. It is further alleged that the Defendant inadequately complied with the condition requiring erosion and sediment control devices. Details were not provided to the Council in advance, nor was Council approval sought, but those that were installed, were not maintained, and had become completely ineffective during 1998. EPA v Daracon Engineering Pty Ltd (1998) 97 LGERA 415.

32. In January 1998, the Council wrote to Fletcher requiring him to cease importing fill onto the property.

33. In so far as the Defendant may have relied on a DC, he was still not relieved of his obligations to comply with the obligations imposed on citizens by other environmental protection statutes such as that which underpins the charge, and that which prohibits, e.g. pollution of waters (see T158). Brown v EPA & Anor (1992) 78 LGERA 119.

34. After 30 June 1997, a Waste Act licence was required, because the operation on the Defendant’s land amounted to a controlled waste facility, namely premises used for the storage, treatment, sorting or disposal of waste. In terms of Regulation 5(1)(j), Fletcher’s land was located in an environmentally sensitive or inappropriate area - it adjoined a National Park, was within 250m of a dwelling, and was also within 40m of a permanent or intermittent water body. On Fletcher’s land there were three water bodies, being two water courses, and a dam, and there were/are other water bodies nearby.

35. Mr Buchanan SC, during his opening, submitted that any honest mistake made by the Defendant, was a mistake of law, and, accordingly, not a defence to any of the periods in the charge. If the court were satisfied that there was some officially induced mistake of law, it would be a matter to be put and considered only in mitigation.

The Prosecutor’s witnesses

36. The Prosecutor relied on the following witnesses:

(A) Regulatory/Investigatory Officers of the EPA
Danielle Playford , Affidavits 30 March 1999 and 19 October 2000, plus oral evidence.
Mark Callaghan , Affidavits 11 June 1999, 3 December 1999 and 19 October 2000, plus oral evidence.
Leslie Johnston , Affidavits 27 July 1999 and 9 October 2000, plus oral evidence.
Terrence Muir , Affidavit 10 August 1999, plus oral evidence.
David Taylor , Affidavit 10 August 1999.
Kenneth Hardy , Affidavit 26 October 2000.
Matthew Garrod , Affidavit 23 October 2000.
Scot Hedge , Affidavit 17 May 1999.
Tanya Ritchie , oral evidence only

(B) Officers of Hawkesbury Council
Colin Hamilton , Affidavits 7 June 1999, 20 July 1999 and 4 May 2000, plus oral evidence.
Michael Coulter , Affidavit 11 October 1999, plus oral evidence.
Stephen Enders , Affidavit 5 July 1999.
Charles Whitelock , Affidavit 20 July 1999.

(C) Expert witnesses
Andrew Swane , Affidavit 4 May 1999 - registered surveyor in private practice.
Sean Hardiman , Affidavit 23 June 1999, plus oral evidence - a senior environmental biologist with the EPA.
Robert Junor , Affidavit 10 August 1999 - eminent soil scientist now in private consulting practice.
(D) Private citizens
George Taxidis , Affidavit 25 August 1999 - a manager of various excavation/demolition companies (Dionys Group Pty Ltd, March 1996-June 1998, and Civil National Pty Ltd August 1998-April 1999).
Sam Emerzidis , Affidavit 29 September 1999 - a director of a substantial excavation/demolition company (Civil National Pty Ltd).
Eugene McElroy , statement 1 June 1999 ( Exhibit P22 ) - owner/director of an excavation/plant hire company (Cartville Pty Ltd).
Frank Araldi , statement 21 July 1999 ( Exhibit P21 ) - owner/operator of a demolition/excavation company (MF Excavations Pty Ltd).
Daniel Veldman , oral evidence only - truck driver.

The Prosecutor’s evidence

The commencement date of filling operations

37. Veldman gave oral evidence that he was engaged by Dennis Dorgan to cart loads of 20 tonnes of fill from a demolition site within the city of Sydney to Fletcher’s Scheyville property between September and December 1996. Veldman is sure of the date because he commenced a new job in Tamworth in 1997.

38. The loads he delivered included concrete, bricks and steel reinforcement. The trucks were driven down the steep driveway and then diverged to the left to go around a dam to the right, and tip there. He himself tipped between 14-18 loads into holes which were, in his words “specially made to hide the rubbish quickly” (T22 L16-17). He did not tip into the dam (T23 L37-39). He personally had no direct financial arrangement with Fletcher, but he had to make out a docket each time he took a load. Sometimes there were three or four trucks at a time. He saw “demolition material, everything from a fine dust which was asbestos to timber, concrete, bricks, just a normal house, a house that had been demolished” (T24 L56-59). He observed holes which were probably 12 feet wide and 20-25 feet deep and as soon as the tipping was finished, a machine would backfill good soil. Fletcher was on site sometimes (T26 L1-3), and usually signed the docket (T26 L14).

Fletcher’s dealings with the Council

39. The principal Council witness, Hamilton, made three affidavits, dated 7 June 1999, 20 July 1999 and 4 May 2000, and also gave oral evidence. He is now retired, but he was employed by Hawkesbury City Council and its predecessors from 25 June 1973, originally as Parks Supervisor, and after 1993, as a Development Control Officer. He holds a certificate in horticulture from the Ryde School of Horticulture, and claims no town planning qualifications or expertise.

40. Hamilton has visited the premises at 78 Scheyville Road Oakville on numerous occasions since late 1996. During an inspection on 3 January 1997 he took photographs depicting disturbed soil miscellaneous waste material on site, including timber, broken concrete, shale, and plastic, plus concrete reinforcing metal rod. It is not Council’s practice to allow temporary fill to be placed on land prior to development approval (T53 L26-30), but no direction was given to remove it, because Fletcher told him he was lodging a DA which would cover the stockpiled material.

41. Fletcher’s development application (DA 7/97) was lodged on or about 21 January 1997, and described the “proposed development” as “fill old dam. Land to be used for agriculture”. The existing use of the land was described as “rural” with “house and shed not complete”. In the further details section on p3 of the form, Mr Fletcher said: “Section to be filled leaving small dam on western side. Land to be filled and used to grow roses and shrubs. Badly affected by transmission line”. (Exhibit P9, fol 2). In the accompanying letter, Mr Fletcher said:

Please consider my development application to fill old dam … The finished site will have 1 metre of top soil and used for agricultural purposes. The property is badly affected by a transmission line and the existing dam in its present state is a health hazard and a danger to my daughter and grand children. The completed site will be landscaped and will enhance the enviromental (sic) outlook of property.
Hours of filling operation will be 7.30am to 5pm 6 days a week.
In a tradesman like manner.
Soil erosion and sedimentation control will be carried out.
The area to be filled is 90 metres x 80 metres.

42. The Council wrote several letters seeking further information, and on 26 March 1997 Fletcher specified the depth of fill at 1m. “Hard rock and dirt. Scrutinised demolition. Source of supply to be arranged” (Exhibit P9, fol 5).

43. On 16 May 1997, reportedly after receiving a communication from the EPA on 7 May 1997, Hamilton made an inspection and took further photographs. He noticed excavation work and the presence of broken concrete blocks, steel reinforcing rods, besser bricks, metal star picket poles and piping. On site Hamilton completed direction 0385 to Mr Fletcher and gave it to Mr Wayne Davidson who was operating a DIONYS kato scoop excavator. The Council issued a notice that Fletcher “immediately … cease importation of all concrete - building rubble timber onto site forthwith. No further material to be accepted of the above material”. (Exhibit P9, fol 7). The DA had not been determined at that time, and Council, in a letter of 19 May 1997, made clear that no approval had been granted for the depositing of any form of fill material on the property (fol 8).

44. A DC was granted 7 August 1997, and then issued, with the endorsed date 8 August 1997 (Exhibit P9, fol 11). The DC referred to consent for “Landfill of Existing Dam” and not to excavation. There were 22 conditions, which are, for completeness, now set out in full (emphasis added):

1. Clean filling only to be deposited on the site to fill the existing dam with no putrescible waste, domestic garbage, timber, vegetation, asbestos, cytotoxic or quarantine waste or any substance classified in the Australian Dangerous Goods Code to be deposited on the site.
2. Filling to be delivered, deposited, levelled and compacted only between the hours of 7.30am to 5.00pm Monday to Saturday.
3. All necessary steps to be taken to suppress dust generation during the delivery, depositing, levelling and compacting of the filling, such that no adverse impact occurs to the site and properties surrounding and adjacent to the site.
4. Erosion and sedimentation control devices shall be installed and maintained during all works. Details to be submitted and approved prior to any further filling being undertaken .
5. Noise generated as a result of the development must not exceed more than 5dB(A) above the ambient noise level, when measured at the nearest residential boundary.
6. All filling is to be placed in a maximum of 300mm layers and adequately compacted by track roller or similar.
7. Prior to any further work commencing, a plan is to be submitted for approval showing overland drainage flow paths, the proposed contoured depth of fill plan and the full dimensions of the fill area.
8. On completion of the works, a contour depth of fill plan is to be submitted.
9. The development shall be conducted in such a manner so as not to interfere with the amenity of the neighbourhood in respect of noise, vibration, smell, dust, waste water, waste products or otherwise.
10. The development shall be carried out in accordance with submitted amended plan , except where amended by conditions of this consent.
11. All necessary works being carried out to ensure that flow from adjoining properties is not impeded .
12. No excavated material, including soil, shall be removed from the site.
13. All loaded trucks arriving at the site shall have their payloads suitably covered to prevent spillage from the truck onto the road.
14. Council reserves the right to impose a condition to have a mechanism installed whereby wheels of trucks leaving the site are washed to minimise dust and debris being deposited on roads, however, it shall monitor the operation for 3 (three) months without such a facility to ascertain whether such is required.
15. Payment to Council of a contribution under Section 94 of the Environmental Planning and Assessment Act, 1979, towards the maintenance of roads based on 3 per tonne per kilometre of all material transported to the site. The contribution shall be paid and records of the amount of fill and transported distance to be submitted immediately upon completion of works.
16. The topsoil shall be stripped and stockpiled and used to cover the landfill.
17. The filled area, including batters, shall be grassed to the satisfaction of the Director Environment and Development immediately after filling takes place .
18. All works shall be completed within 12 (twelve) months of the date of this consent.
19. The landfill site shall be secured to prevent the depositing of any unauthorised material.
20. Stockpiles of topsoil, sand, aggregate, spoil or other material capable of being moved by running water to be stored clear of any drainage line, easement, natural watercourse, footpath, kerb or road surface.
21. No burning of demolition or construction material being carried out on the site.
22. The applicant is to submit details by way of dockets showing the origins of all fill material to ensure that fill material is not contaminated . Such dockets are to be submitted monthly .

45. The approved plan associated with the DC (see fol 11) clearly limited the fill area to an area 60m x 70m (cf 90m x 80m referred to by Hamilton at T42 L34-37) parallel to the watercourse.

46. On 10 September 1997 an inspection by Hamilton revealed on the subject land large amounts of brick and concrete and some tree waste in a trench adjacent to the national park boundary. He took photographs which also showed bricks, concrete, reinforcing wire, corrugated sheet iron and old flooring material, as well as vegetative material, plastic sheeting and a pipe. In conversation Fletcher contended that bricks and concrete were hard, clean fill, but Hamilton pointed out they were also classified as demolition material. He also noted that there were no erosion and sedimentation control devices installed at the base of the batter of the filled material (Exhibit P9 fol 11).

47. Hamilton discussed the matter, as promised, with the Council planners, who reluctantly agreed that the material was acceptable as long as it was free of timber, iron, tin, etc, and putrescible material. On 12 September 1997, Hamilton wrote to Fletcher (fol 12):

… clean fill material only is to be deposited on the site to fill the existing dam. No putrescible waste, domestic garbage, timber, vegetation eg trees, stumps, limbs, branches, lawn clippings and the like, Asbestos cytotoxic or quarantine waste, or any substance classified in the Australian Dangerous Goods Code and contained in paragraph one of development consent DA7/97.

As further discussed, the present vegetative material currently onsite is to be removed from the site. No burning of this material is to be undertaken.

Erosion and sedimentation control measures are to be installed as discussed and maintained during all works as discussed and indicated in paragraph 4 of development consent DA7/97.

48. A further inspection took place on 24 September 1997. Hamilton observed that timber, iron and miscellaneous vegetation had been placed in excavated areas on the western side, and there were still no sedimentation or erosion control devices. A letter issued on 25 September (fol 13) expressing concern about excavation and backfilling contrary to conditions 1, 2 and 3.

Accordingly, you are requested to cease all excavation works immediately. Present timber, iron and miscellaneous vegetation material is to be removed and deposited at the nearest registered waste depot. Documentation is to be supplied indicating receipt of the waste material at the waste depot.
Upon removal of the waste material, the excavation is to be backfilled to normal ground surface level utilising the material excavated. No further excavation work is permissible. All work undertaken is to be confined to that as approved in Condition 1 … wherein it is stated clean fill only to be deposited on the site to fill the existing dam.

49. During early October 1997 there were discussions with Fletcher regarding his desire to improve access tracks. Hamilton made clear to Fletcher that he would need another DA for any excavation work as his approval related only to filling. In a letter dated 8 October (fol 14), Hamilton again said to Fletcher:

Accordingly all excavation works are to cease and the required documentation is to be supplied at this office relating to any additional works intended. No work other than that approved in development consent DA7/97 is to be undertaken at this time.

50. At an inspection on 14 October 1997, building material, metal and excavated soil, as well as miscellaneous tin, iron, wire and piping, were in evidence. On inspection on 15 October 1997 (fol 15) concern was expressed that material delivered to the site was being stockpiled, rather than placed in the dam. In a letter dated 15 October 1997 (fol 15) Hamilton expressed concern about the failure to address conditions 1, 3, 4, 6, 7 and 22. Hamilton saw no evidence of sedimentation controls and Council had received no detailed information. On 20 November 1997, Hamilton pointed out that Fletcher already had more than enough materials to fill the dam, and no further fill was required. Hamilton warned him that separate approval was required for piping works. Again, on 24 November 1997 Hamilton drew attention to conditions 1, 3, 6, 7 and 22. He was concerned at the adequacy of minor sedimentation works in evidence.

51. On 8 January 1998, Hamilton left a telephone message for Fletcher, on his answering machine, reminding him that no more fill was to be imported, and the truck dockets and drainage plans, etc. were required. Exhibit P9 fol 17 records a site visit on 8 January 1998. On 14 January 1998, Hamilton received a telephone enquiry, visited the premises, and saw two truck loads of rough fill material being dumped. He issued a stop-work order 0391 to the drivers of those vehicles. Folio 18 records an inspection with Coulter on 19 January 1998, during which Hamilton and Coulter discussed with Fletcher several changes to his intentions. In a letter of 20 January 1998 (fol 19), Hamilton advised Fletcher that no further fill was to be imported, and that:

The present stockpiled material of rubble and broken concrete is to be placed in the fill area in conjunction with material won from the grading of the previously filled area of the dam as discussed. On completion of this work, consideration will be given for the importation of further fill material to allow completion of the project.
You are further advised that no additional works are to be undertaken on the property other than that approved under Development Consent No. 7/97. The site is to be secured to ensure that no further imported fill material may be placed on-site, and written advice provided as to the current position of the approved works and an estimation of time required to complete the operation within 14 (fourteen) days of the date hereon.

52. Shortly before 17 February 1998, Hamilton received from Fletcher some dockets and a sketch plan which related to the proposed construction of drainage. He wrote to him on 17 February advising that “no further fill material other than reasonable quality top soil is to be imported onto the property” and that material was to be used to cover the landfill. “… no additional works are to be undertaken other than that” approved by DC 7/97. A new DA would be required for the proposed drainage or additional work.

53. On 25 February 1998, Hamilton inspected the premises with Playford. Fletcher was not in attendance. Hamilton observed that the filling at the premises did not comply with the consent - fill material was continuing to be imported and some was being stored outside the fill area. Some of it did not comply with condition 1. Hamilton took some photographs and so did Playford. The main filling area in the area of the existing dam had been partially levelled in comparison with previous inspections. On 27 February, Hamilton wrote to Fletcher again enclosing a stop-work order. Importation of all fill material, including reasonable quality topsoil was to cease. He attached stop-work order 0392.

54. On 18 March 1998, Hamilton was outside the premises and observed two trucks fully loaded with what appeared to be broken concrete, bricks, steel, timber and steel reinforcing wire. A third truck arrived, and all were photographed. Hamilton did not see the trucks either leave, or enter, the premises. Later that day Hamilton had a telephone discussion with Fletcher which included a repetition of an allegation that Hamilton had taken his lock. Fletcher was going to complain to his local MP, Mr Rozzoli.

55. Hamilton attended and took more photographs on 20 March 1998. On 26 March Hamilton wrote to Fletcher again repeating that the importation of all further fill material was to cease, and that an accurate volumetric total of the fill material delivered to the site was to be provided. Fletcher was reminded of conditions 1, 7 and 22.

56. On 2 April 1998 Hamilton made a further inspection and took some photographs including of the stockpile which he had first inspected in late 1996. Trucks were seen tipping on 2 April 1998. Further photographs were taken on 8 April, including that of a truck waiting outside the locked gate, carrying a load which included vegetative material and possibly also metallic material.

57. Hamilton observed the truck entering the premises on 14 April 1998 carrying material like soil or heavy clay. He took a photograph of that truck as well.

58. On 28 April 1998, Hamilton wrote again to Fletcher conveying a resolution that was carried by Council on 14 April requiring a notice to be served requiring compliance with conditions of consent, requiring that the material be analysed for contamination, requiring the provision of a plan showing overland drainage flow paths and other information, and resolving that class 4 proceedings be commenced to restrain the activities by the applicant if he should fail to comply.

59. The forty day period stipulated in the letter expired, and, on 9 June 1998, Council wrote to Fletcher again giving him until 12 June to provide the information sought. At about 12 or 13 June, Council received from Fletcher a letter dated 27 May saying that the relevant sampling drill holes had been made on that day and laboratory testing was in process.

60. On 2 July 1998, Hamilton wrote to Fletcher again saying the test analyses had not been received though they were expected on 12 June. On 7 August 1998, Council received a report dated 30 July 1998 from Scientific Services of Queensland Health addressed to Mr Fletcher. Council did not consider the response satisfactory, other than in relation to asbestos. Fletcher was so advised by letter dated 25 September 1998 from Council and given 21 days to provide the information required.

61. Hamilton is familiar with the appearance of coal washery rejects and slag and has never seen any of that material at the premises or on any of the trucks he saw entering the premises.

62. In his affidavit of 4 May 2000, Hamilton acknowledges that some of the photographs show some sedimentation and erosion equipment, but says that it is not strictly in compliance with what was required, and there is no evidence to show that it was. Council has never approved a plan for these works and no details were ever submitted, apart from the plan he submitted in about July of 1998, which was the first depiction of overland drainage flows he provided.

63. The proposed contoured depth of fill plan was never submitted to Council, nor were regular dockets submitted showing the origins of the fill material placed on site.

64. Hamilton told the court that on none of his inspections had he observed any “agricultural activity” on the subject land.

65. During Mr Simpson’s cross-examination of Hamilton, Mr Buchanan SC, read the affidavit of Enders, a town planner employed by Hawkesbury City Council, to whose evidence there was no objection. Apart from DC 7/97, no DCs have been granted by Council in relation to the premises and there are no “existing use” rights applicable to the premises. The development as proposed in the DA did not fall within the definition of “waste management facilities or works” in Schedule 3 of the EPA Regulations 1994 and, therefore, it was not designated development. Council received no modification application in respect of the August 1997 DC 7/97, and it lapsed on 6 August 1998.

66. Enders formed a view from Swane’s materials that Fletcher had filled outside the approved area in breach of condition 10. Based on the evidence of Mr Hamilton, he formed the opinion that waste other than clean fill was deposited during the consent in contravention of condition 1. In Enders’ opinion bricks, concrete, metal and the like are not “clean fill” authorised by the DC, nor is vegetative material or timber.

67. Coulter gave evidence of discussing with Fletcher the use of stockpiled bricks to build a fence and Fletcher’s intentions to improve his access road.

68. Whitelock’s affidavit deals with his observations on 25 May 1998 of an excavator covering concrete and steel waste.

The involvement of the EPA

69. Hamilton testified to receiving a fax communication from the EPA in early May 1997, but that communication does not appear in the evidence.

70. Johnston, whose job experience has involved landfill regulation and Council liaison on such matters, followed a truckload of demolition waste into Fletcher’s property on 6 January 1998. Fletcher told him he had a Council approval, and Johnston says he indicated to him that he would also need an EPA licence to receive such demolition waste.

71. Playford contacted Hamilton when she became aware of Fletcher’s operations in early February 1998. Believing Fletcher to have a DC for “landscaping works”, she was concerned he was accepting non-inert wastes. She made several inspections (including at least one, on 25 February, with Hamilton) during February 1998. So that Hamilton could explore the licensing question further, she faxed him some broad information about the Regulation on 2 March 1998 (Exhibit F4 and T63 L34-50). At that time she was not aware of the proximity of the National Park to Fletcher’s land, and so was concentrating on the volume of waste and its “inert” status.

72. Fletcher contacted Playford on about 18 May 1998 about having “Council problems” wider than questions of quantity, and she forwarded him an envelope of EPA materials and an application form, so that he could consider his licensing obligations (T66 L1-10, 50-58).

73. There is a serious dispute about what was in the package of material Playford forwarded to Fletcher. She testified that she had sent a “usual” package (see T71-72), and Johnston corroborated the contents of such package. The court concludes that little turns on this dispute. The most relevant evidence is that Playford emphatically denied ever saying to Fletcher that he definitely did not need a licence (T86-7). After May 1998 she then left it to other officer(s) - she named Johnston in her evidence but he does not corroborate her evidence in this respect - to deal further with the matter, if that proved necessary, and to the Council (T68 L1-20).

74. Johnston deposed to further site observations on 7 September 1998, and testified that he advised Fletcher not to accept demolition material.

75. On 23 November 1998, the EPA obtained a search warrant for Fletcher’s premises. The EPA asserted the premises were or had been a “controlled waste facility” which required a licence. The warrant was executed on 24 November 1998. Several officers gave detailed evidence of the operation, which was under the command of Ritchie. Johnston was present, but Playford was not. Photocopies, video footage and still photographs were taken and some documents etc. were seized. I am satisfied by the evidence of the relevant cross-examined officers (Johnston, Callaghan, Ritchie and Muir) that the EPA felt a genuine need to obtain further evidence in order to charge Fletcher (see e.g. Muir at T110 L30-56). The operation was, understandably, the cause of substantial tension between Fletcher and the EPA, but I am completely satisfied that there was no misconduct on the part of the EPA, especially so far as the possible “planting” of evidence is concerned - an allegation which was put in Mr Simpson’s opening, but not put to those EPA officers who gave evidence (see submission T152 L51-56).

76. The EPA envelope (Exhibit F8) containing the documents sent to Fletcher by Playford was not seized or photocopied, but it appeared in video footage (T113 L5-16). It was found open, and its contents were videoed and photographed (T106). The Non-liquid Waste Guidelines booklet (Exhibit P14) was not among those contents.

77. The officers in attendance at the search testified to seeing a large area of fill, including concrete, soil, bricks, rock, shale, demolition waste, on the Fletcher land. The Defendant also showed some of them alleged dumping by others in the National Park.

The material deposited as fill

78. The evidence of Taxidis, Emerzidis, McElroy and Araldi is largely unchallenged. It, and that of Veldman, indicate that large tonnages of unscreened soil, bricks, concrete, clay, rubble, etc. were deposited at the subject site from September 1996 to November 1998.

79. The EPA does not assert a legally enforceable exclusion of demolition material from the Council’s DC (cf evidence of Enders and Hamilton, and vide admission of Fletcher that demolition material was deposited on site) (See T46 and T54). Nor is there any allegation that materials such as asbestos, coal washery rejects and slags were deposited.

Did the Defendant receive reward for the fill delivered?

80. Araldi, Emerzidis and Taxidis testified that Fletcher received payments for some of the relevant dumping, in amounts well below what licensed landfill operators generally charged. Substantial payments were said to have been made in cash, but receipts cannot be found.

81. McElroy alleges, and Taxidis suggests, some barter arrangements.

82. Veldman speaks of noting a sum of money on the drivers’ dockets, and the inference is available that Dorgan paid money to the Defendant, or gave him the use of labour and/or machinery as reward.

83. The search on 24 November 1998 produced business records, of which the Defendant would have no need unless he was making some money from the fill operation.

The fill area

84. Surveyor Swane (affidavit 4 May 1999, par 10) estimated that the amount of fill present on the premises as at 23 November 1998 was “23,000 cubic metres plus or minus 25%”. He determined (in par 16) that the volume of fill outside the approved fill area was “8,400 cubic metres plus or minus 25%”. The error factor of plus or minus 25% could only be reduced by bore hole sampling on a 10m grid, or by photogrammetric methods, both of which “would involve considerable and possibly unnecessary extra expense”.

85. Soil Scientist Junor observed on 24 November 1998 that the “natural ground level of more than 50% of” the subject site had been “altered by excavation … or the deposition of material” (Affidavit 10 August 1999 pars 20-1).

86. Also, Hamilton’s affidavit speaks of observing waste on Fletcher’s land outside the areas identified by Swane.

Environmental sensitivity, as indicated by cl 5(1)(j) of the Regulation

87. Swane also determined that the neighbouring residence (No.80) was less than 250 metres from the edge of the filled area, as was the edge of the weatherboard cottage on portion 290. The whole of the filled area was less than 250m from the Scheyville National Park boundary; in fact, fill was placed up to that boundary at the south-western corner of the premises (par 22). Swane’s survey (Exhibit P3) also indicates an easement for transmission line running east-west along the southern section of the property. His affidavit also covers the differences between his work and that of surveyors engaged by the Defendant.

Environmental Harm?

88. Hardiman and Junor inspected the premises and took soil and water samples on 24 November 1998 as part of the search warrant operation recorded on video. Their sample sites and results are in evidence (Exhibits P18, P19 and P20), and there are in their affidavits quite graphic photographs of what they observed. Hardiman gave oral evidence, but Junor was not called to give oral evidence, or be tested on his affidavit evidence. Junor and Hardiman had both noted the movement of clay and rubble onto the adjoining lower property, smothering vegetation and altering ground level.

89. Hardiman’s EPA duties involve review and improvement of landfill operations, including assessment of problems with leachate and groundwater contamination. He was closely cross-examined about the possible impact on both Fletcher’s land, and that below it, of the activities, past (poultry sheds) and “present” (market garden), on the land “above” Fletcher’s. Hardiman conceded that there could be runoff from “rotting vegetation on the market garden”, but insisted that, as at 24 November 1998, there was clear evidence that there had been no overflow from above for some weeks (T130).

90. Hardiman told the court that he had seen no evidence of cultivation or agriculture on the subject site, and that, when he reviewed the subject site again on 18 December 2000, he found that what he had described in his June 1999 affidavit as a “highly altered landscape did not look to be altered any more , but the mounds of waste had just been covered with weeds and grass” (T120 L44-58). His affidavit had noted the presence of oil drums and building materials in November 1998. Black liquid had leaked onto adjacent land, killing vegetation.

91. Hardiman observed also the excavation of pits and deep holes, and noted the presence of perimeter drainage and a “bisecting” canal. Junor commented that the natural drainage had been “significantly altered”. A steep batter near the lowland boundary had discharged “offensive” liquids onto adjacent lands, at an estimated rate of 11,500 litres per day, water logging the nearby dam.

92. Hardiman’s expert conclusions (Affidavit 23 June 1999 pars 108-111) were not challenged, and should be quoted in full:

108. In conclusion, surface waters and leachate discharge samples collected showed that the leachate waters discharged from the defendant’s Premises contained elevated levels of zinc, ammonia, TKN, FRP, dieldrin, gamma-chlordane and heptachlor epoxide when compared to concentrations of the above parameters in inflow waters to the Premises. The conductivity of the discharge also indicated elevated concentrations of saline materials.
109. The leachate appears to have led to the dominance of salt tolerant vegetation immediately downstream of the Premises and to an elevation of the concentration of ammonia in the downstream dam.
110. Due to ineffective sediment control works and equipment installed on the western perimeter of the Premises, earthworks and runoff from the Premises has caused a significant deposition of material (including building material fragments) on the adjoining premises to the west. This material was observed to have been deposited over the entire distance from the western boundary of the Premises to the downstream dam west of the adjoining premises. In my opinion sediment would also be highly likely (as a matter of course) to have been deposited in that dam thereby reducing its capacity and effective flood retention time.
111. For all the above reasons, I am satisfied that use of the Premises for the depositing of material has:
(a) due to the nature of the material deposited,
(i) led to changes in the chemical and biological process of material degradation; and
(ii) in turn led to the pollution of those waters percolating or draining through the material; and
(iii) led to the significant degradation in the quality of waters discharging from the Premises;
(b) due to the degradation of the quality of waters discharged from the Premises, led to the development of predominantly salt tolerant vegetation on the portion of the western adjoining premises receiving the discharged waters; and
(c) due to the manner of deposition of the material at the Premises, led to the deposition of sediment and other material on the western adjoining premises which, in my opinion is also likely, to have been caused to be deposited further downstream, including the dam.

93. Junor’s evidence (affidavit 10 August 1999) was likewise unchallenged, and contains the following relevant paragraphs:

16. An embankment approximately 4.0 metres high has been formed by the deposition of fill material along the western boundary of the Premises. This embankment comprises mainly unconsolidated earth materials including shale, clays, sandstone fragments and building demolition materials that I observed included fragments of concrete, asphalt, tiles, aluminium, plastic pipes, carpet and copper cables.
17. This embankment has been sown with a seed mixture to stabilise the soil surface. At the time of inspection a vegetation cover of oats and ryegrass were growing on the embankment. These grasses had not developed sufficient density to prevent erosion occurring. (Photographs B, & C).
18. In an apparent effort to contain the sediment that may erode from this embankment a sediment fence had been installed at the toe of the embankment along the boundary fence. The major section of the sediment fence was observed to be full of sediment. Runoff water now overflows the fence and sediment is being deposited onto the neighbouring property to the west from the Premises. Photographs A, B, C & F show the condition of the sediment fence at the time of the inspection. Some of this sediment fence appears to have been removed from the northern section of the embankment and has been placed on the boundary fence as can be seen in Photograph A.
19. A 1200mm diameter concrete outlet pipe forming the dam spillway is located at a height of 2.0 metres above natural ground level and water discharging through this pipe has caused gully erosion of the embankment (Photographs C & F), Large rocks have been dumped in the gully erosion to reduce this erosion and provide some protection of the embankment. Extensive sedimentation of the natural drainage line has occurred with more than 200mm of sediment being deposited on the western adjoining Premises. (Photograph O).

20. Sediment (sand, silt, clay rock fragments and building demolition fragments including bricks concrete, tiles and packaging materials) have been deposited over the natural drainage plain. This sediment has covered and destroyed the previous vegetation.
21. Seepage through the embankment located on the Premises has caused the local water table to rise to the soil surface on the neighbouring Premises to the west and higher soil salinity levels are evident. Plant species that are more salt tolerant are now becoming the dominant species over this area. Larger grey box trees are showing signs of stress from water logging and higher soil salinity levels. I have read the affidavit of Mr Hardiman, particularly the conclusion in paragraph 108 in relation to elevated levels of saline material in the discharge liquid from the western boundary of the area where the sediment was deposited. I say that this evidence is consistent with the prevalence of salt tolerant vegetation that I observed.
22. Although deep excavation of the filled area was not carried out, analysis of the samples of deposited fill material that I collected show that the sampled material contained elevated levels of organochlorine pesticides. With the exception of sample SS4B which contained slight levels of lindane (possibly representing a prior “agricultural” treatment used at the Premises at the Premises) (sic):

23. I note Mr Hardiman’s conclusion in paragraph 108 of this affidavit that leachate fro the Premises also contained elevated levels of dieldrin, gamma chlordane and heptachlor epoxide. I am familiar with the fact that each of these chemicals is prohibited to be used in New South Wales pursuant to the Pesticides Act 1978. I have consulted the document ‘History of Approved Uses of Organochlorine Pesticides in New South Wales prepared by The Agricultural and Veterinary Chemicals Sub-program, NSW Agriculture dated 5 November 1996 and note that:

24. The presence of these chemicals in the leachate and the soils is consistent with my conclusion that these soils are not naturally occurring soils, but are in fact contaminated soils sourced from building sites. These chemicals are extremely resilient in soils and have traditionally been used as pest treatments in soils in and about buildings.

The defence case

94. The Defendant filed no affidavits and called no witnesses. He relied on his solicitor’s searching cross-examination of several prosecution witnesses, the tender of various documents and photographs, and Mr Simpson’s written and oral submissions.

95. The submissions made on his behalf, as I understand them, are essentially as follows:

(a) Having applied for a search warrant against Mr Fletcher as the occupier of the subject lands, it is wrong in law to then charge him as the owner of those lands.
(b) As the five years stipulated in the DC is inconsistent with its twelve months lapsing provision, the consent is legally bad and cannot found any charge. Alternatively, the consent runs for five years from grant. Alternatively, the twelve months limit does not run while the Council’s “ stop work ” notices apply.
(c) As “ agriculture ” is permissible without consent - “ horticulture ” being caught by the definition - preparation of the subject land for an agricultural purpose, by filling and/or reorienting the dam, does not require DC. Alternatively, the consent granted is bad in law because it should not have been granted in view of the “ environmental sensitivity ” of the land. Alternatively, the Council wrongly determined that fact, and Fletcher is entitled to believe his property is/was not in an “ environmentally sensitive area ”.
(d) Because of Council’s incorrect advice to Fletcher, and its failure to more closely supervise his activities, in accordance with its own guidelines, the Prosecutor cannot sustain the “ without lawful authority ” point regarding the DC. Alternatively, as DC is not required, and/or is bad in law, Fletcher cannot be charged with breach of its conditions (T167 L39-44).
(e) The Prosecutor’s interpretation of clause 5(1)(j) of the Regulation is illogical in that it means that “ if you receive no more than 20,000 tonnes per year of coal waste and you are not within 250 metres, well then you are not allowed to do it . But if you are within the 250 metres you are allowed to do it” (T168 L30-38).
(f) Evidence of witnesses Veldman, Playford, Ritchie, Muir and Johnstone has been shown to be unreliable, and/or inconsistent, and should be disregarded (pars 44 to 80 of submissions), as should the video evidence, which was calculated to show Fletcher’s land in the worst light (T176 L19-30).
(g) Collection of money by Fletcher, for the dumping on his land of fill material, is not in breach of the law, as the Council intended him to pay a levy per tonne of fill delivered, and he should be able to recoup it.
(h) On environmental harm, the Defendant should not be judged on video evidence of his unfinished project. The drums, tin and other rubbish pertained to Mr Fletcher’s business, and whatever else appeared on the site had both Council approval, and “ implied consent from the EPA as from February 1998 ”, because Playford initiated no EPA action against Fletcher. The property below Fletcher’s dam collects runoff from all the higher ground, including the market garden, and not just Fletcher’s land, as conceded by Hardiman. In such a rural area some build-up of agricultural chemicals could be expected as Fletcher’s land is a natural destination for runoff.
(i) Honest and mistaken belief of fact (submissions par 103 - citing Proudman v Dayman (1994) 67 CLR 536). Mr Simpson accepts that ignorance of the law is no defence, but he claims that the Defendant relied on Council’s failure to take action, and on the impression allegedly conveyed by a senior and “ competent ” (T179 L26) EPA officer, Playford, as at 2 March 1998, that a Waste Act licence was not required, and that his operations, therefore, continued “ with the approval of the EPA ” (T179 l34-5 and T180 L8-15).

96. Apart from Proudman v Dayman, Mr Simpson took the court to two English authorities in respect of submission (i) above. In Surrey County Council v Battersby [1965] 2 QB194, the English Court of Appeal (per Sachs J at 203) said:

… this prosecution has taken place despite the respondent having acted bona fide … on the advice of an official of the … Council. … Those circumstances operate as very strong mitigation in relation to any sentence … by the justices … may well feel … that this is a case for an absolute discharge.

See also Regina v Dodsworth (1837) 8 Car.&P.467 (per Lord Denman CJ at 469):

I do not think you ought to convict a person of a misdemeanour … if he has acted bona fide, and has been guided in his conduct in a matter of law by persons who are conversant with law …

Findings and conclusions from the evidence

Area filled

97. The court accepts the evidence of the surveyor Swane as to the total amount of fill material, the amount of it outside the approved area, and the distances relevant to the operation of the Regulation, and also accepts the affidavit evidence of Hamilton that waste was seen even outside the areas identified by Swane, consistent with the comments of Junor.

When filling began

98. The court accepts evidence of Veldman, which indicates that “waste” materials, including materials not regarded as clean fill, began arriving at the subject land not later than September 1996.

Duration of filling

99. There is clear evidence of the filling of the land from the time of Veldman’s loads of September 1996, until the EPA search operation on 24 November 1998.

Is the Prosecutor’s summons bad in law?

100. The charge is framed on the basis that the owner caused or allowed his land, whether or not he occupied it at the time, to be used as a waste facility. The current Defendant admits owning and occupying the subject land at all material times. The search warrant was addressed to the occupier, but that has no bearing on the fact that the charge was later framed against the owner, and brought under a relevant section of the Act. That relevant element of the charge in the summons (namely ownership) is made out by the evidence, and the summons should be allowed to stand.

Was development consent required for the filling operations proven to have taken place on the subject land?

101. There is clear authority for the proposition that the use of land for storage of fill and waste materials is “development”, within the meaning of that term, in the context of the consent requirements of the Environmental Planning & Assessment Act 1979.

102. Accordingly, as it is clear beyond reasonable doubt that the Fletcher land was used for such storage, development consent was required, regardless of some agricultural motivation or intention in the background. See Holroyd City Council v Murdoch (1994) 82 LGERA 197.

103. Lack of DC for any of the material period of time, and proven breach of the DC during that period, would prove on the part of the Defendant an absence of lawful authority. See Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132.

Does the “ancillary” nature of the use matter?

104. Without a DC the Defendant was entitled to use his land for agriculture and dwelling purposes. The DA nominated “land beautification and landscaping” as its proposed uses.

105. To the extent that the land was used for a dwelling, the keeping of a horse and dogs, and for landfilling, the court concludes that the predominant non-residential use during the charge period was for landfilling. The use of fill for access improvement or fencing purposes could be considered ancillary to the residential use, but the scope of the filling activity obviously exceeded the demands of such uses. The purpose stated in the DA is not determinative of the question - Taylor v Hornsby Shire Council (1990) 69 LGRA 281 (per Hemmings J at 285) - and it is a question of fact and degree in each case - Lizzio & Anor v Ryde Municipal Council (1983) 155 CLR 211 (per Gibbs CJ at 217).

106. The principles to be applied, when such factual determination is clear, are well established in this court. See, e.g., Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404.

107. I have concluded that the landfilling operation in this case was an independent use requiring its own specific DC.

Was DC 7/97 valid and/or validly granted?

108. The Defendant’s DA was closely examined by the Council officers involved, and was not granted until many months after it was lodged. The site was known to Council officers, so knowledge of its proximity to the National Park and other possibly sensitive features of its environment can be presumed, in the absence of contrary evidence, on the part of Council. The Council’s obligations, considerations, and processes, as consent authority, are not to be confused with those of any other relevant licensing or regulatory authority.

109. The provision for a five year “life” of a consent, so far as its commencement is concerned, likewise, is not to be confused with a provision that, once commenced, it will lapse within twelve months. I rejected that submission during argument (see T165 L30 to T166 L2).

110. Similarly, there is no authority for Mr Simpson’s proposition that issuing “stop work” notices, concerned with alleged breaches of the DC, does not extend its “life” by the period of their operation.

111. The evidence suggests that the development works approved by DC 7/97 were, in fact, underway and continuing as at 7 or 8 August 1997, so the court concludes that there was a valid DC granted by Council for the twelve month period 8 August 1997 to 7 August 1998 (inclusive).

Did the Defendant breach the Council’s consent?

112. Leaving aside the conceded issue of the effect of condition 1 of the consent (T146 L16-25), and/or the impact of the provisions of the DCP, on the importation of demolition material (as distinct from Virgin Excavated Natural Material) as “clean fill”, the evidence clearly establishes that during the relevant period the Defendant breached the consent, inter alia, by:

clean fill

fill area

Was a Waste Act licence required?

113. The need for a Waste Act licence clearly arose on 30 June 1997, and I am satisfied that the subject land met the statutory definition of “controlled waste facility” at and from that date (Waste Act ss 5 and 44, and Regulation cl 5(1)(j)) - in respect of the prescribed distances from residences, National Parks and water bodies the court accepts the evidence of Swane (par 87 above) and notes that the survey details submitted to Council by Fletcher in 1998 corroborate Swane’s views).

114. There is clear evidence that Fletcher used his land for landfilling purposes before the commencement of the DC, indeed from September 1996, and after its expiry, indeed until the date of execution of the search warrant, 24 November 1998.

Is there a “mistake” defence available?

115. Playford’s evidence clearly negatives Mr Simpson’s submission that she in some way led Fletcher into a mistaken belief that the facts of his situation did not attract the legal requirement that he obtain a Waste Act licence. Not only that, but the court also accepts Johnston’s evidence as, at least, sufficient to put the Defendant on proper inquiry as to his position, and Playford’s further evidence that she sent Fletcher all the information he should need to assess his position as to licensing. The evidence of the search on 24 November 1998 shows that the Defendant did little, if anything, with the information she provided, despite his ongoing “difficulty” with Council, and his later complaints about the completeness of the material.

116. Officially-induced error may indeed be a mitigating factor, but the Defendant, who bears the relevant onus, chose not to lead any evidence to contradict that of the relevant officers of the Council and the EPA, and the court is content to accept their evidence.

117. The evidence of Veldman also shows some alertness on the Defendant’s behalf that his landfilling activities may require the permission of authorities like the local Council and the EPA - if his purpose were merely to fill a dam for agricultural purposes, why was he so quickly covering pits of demolition waste at such an early stage? Such pits played no role in the filling of the dam or the landscaping of the subject land around it (within the approved fill area) (T155-6).

118. The Council appears to have erred in its assessment of the Defendant’s DA (T156), but none of that can be relied upon by the Defendant to negative the “criminality” of any of his behaviour. In any event, his consistent submission is that his activities were legal, and that he had no need for a DC.

Environmental Harm

119. The conclusions drawn by Junor and Hardiman were not shaken at all by any of the Defendant’s tendered evidence, nor, in my mind, by Mr Simpson’s submissions, and the court finds that the Defendant’s activities caused the environmental harm so proven (see pars 92 and 93 above).

Has the Prosecutor proven the offence charged?

120. I find all elements of the offence charged to have been proved beyond reasonable doubt:

(a) Between September 1996 and 29 June 1997 the Defendant’s landfilling activities required the “ lawful authority ” of a DC, and did not have one.
(b) Between 30 June and 6 August 1997 those activities required the “ lawful authority ” of both a DC and a Waste Act licence, and had neither.
(c) Between 7 August 1997 and 7 August 1998 those activities required the “ lawful authority ” of both a DC and a Waste Act licence, but
(i) they lacked the “ lawful authority ” of a Waste Act licence; and,
(ii) although they had the benefit of a DC, the Defendant acted consistently in breach of that DC, such that the activity lacked “ lawful authority ” in that respect as well.
(d) Between 8 August and 24 November 1998 those activities required both a DC and a Waste Act licence, and had neither.
(e) The landfilling activities of the Defendant caused the environmental harm observed and photographed by the lay witnesses, and photographed and assessed by Junor and Hardiman.

The appropriate penalty

121. The observations of the witnesses relied upon by the prosecution, and the large number of photographs taken between January 1997 and November 1998, show the consistent dumping, and some concealment, of inappropriate waste materials on a large area of the subject land from September 1996 to November 1998.

122. I make no specific findings as to volume, as there is some admitted possibility in the Prosecutor’s evidence of some double counting, but I accept generally the survey evidence of Swane (see par 84 above), and I note the uncontested evidence, for example, of Araldi, McElroy and Taxidis, indicating approximately 3,000-4,000 tonnes of material were delivered, for example, between September 1997 and March 1998 alone.

123. I conclude that the Defendant undertook a very substantial landfill waste operation over a long period of time, and I turn now to the considerations specified in s 241 of the Protection of the Environment Operations Act 1997, re-enacting those specified in s 9 of the Environmental Offences and Penalties Act 1989.

Environmental harm (s 241(a))

124. From the evidence of Hardiman and Junor, I deduce, and attribute to the Defendant’s conduct, the following elements of environmental harm, both direct and consequential, none of which has been otherwise plausibly explained:

(a) destruction of vegetation on Defendant’s land and adjoining western land caused by deposition of sediment, demolition materials and other waste,
(b) soil erosion,
(c) increased levels of salinity and of the toxic compound, Ammonia. This has started to result in stress to existing vegetation on adjacent land and the appearance of salt-tolerant vegetation,
(d) increased levels of nutrients,
(e) contamination with organochlorines, chemicals which are persistent in the environment and toxic. While the organochlorines were not detected in the samples taken from the farm dam on the neighbouring, western property, they were in the leachate heading straight for it - at a flow rate, estimated on 24 November 1998, of 11,500 litres per day.

Measures to mitigate harm (s 241(b))

125. The only evidence the court has on this subject is Hardiman’s oral evidence of seeing little difference between the condition of the property on 24 November 1998 and its condition on 18 December 2000 (see par 90 above).

126. Such harm as may be caused outside the subject site presumably remains similarly unmitigated.

Foreseeability of harm (s 241(c))

127. The factors which are officially recognised as indicating environmental sensitivity (e.g. proximity to houses, water and the National Park) were clearly known to Fletcher as owner-in-residence of the subject land. He can be taken also to have been conscious of the watercourses, and the natural slope of the land, and he was in fact working in a water body fed from upstream.

128. He imported large amounts of material, and left much of it unconsolidated. As a man who works outdoors he can be taken to have some appreciation of the risk of erosion, gradual movement of materials, and the likely contamination of the demolition materials he imported.

129. In addition, the court has found that he failed to maintain adequate drainage and sediment control regimes, and this neglect increased the environmental harm he would have foreseen.

Degree of control (s 241(d))

130. The evidence shows the Defendant to have been clearly in total control of the subject site and the relevant operations.

131. As s 241(e) does not apply to this case, I turn now to other relevant considerations on penalty.

Aggravating features

132. I have taken into account the following “aggravating” features of the Defendant’s conduct:

(a) the offence continued for an extended period of time (September 1996 to November 1998).
(b) the Defendant disregarded various “ warning signals ” from relevant officers of Council and the EPA, dating back to Johnston’s visit on 6 January 1998.
(c) the Defendant obtained money and other reward for allowing the deposition of at least some of the fill on his land. See, e.g. R v Minchington (1998) 104 A.Crim.R 502.
(d) there is no evidence of remorse, nor of any attempt to remediate the environmental harm he caused.

Mitigating features

133. I have also taken into account the following “mitigating” features of the Defendant’s conduct:

(a) the Defendant was working on his own home property, with apparent intentions of effecting improvements and eliminating a danger to his family (T164 L38-40).
(b) he pleaded guilty to at least part of the charge, albeit that he did not do so very early in the proceedings, and that he extended little co-operation to the Prosecutor.
(c) I am satisfied that this is not a case of wilful degradation of land using “ illegal ”, or always clearly inappropriate, fill material.
(d) I am satisfied that the Defendant received at least some confusing signals from the authorities about the acceptability of using building demolition waste (at least brick and concrete, but not steel and timber) as “ clean fill ”.
(e) no “ record” has been alleged against the Defendant, and his solicitor described him as a “ salt of the earth ” type who feels stressed at being “ caught in a bureaucratic nightmare ”. The court accepts he is a well-qualified hard-working man, who plays a leading role in an important and dangerous industry (See generally T184-6).

Application for leniency

134. Mr Simpson has asked me to deal with the Defendant, in the event of conviction, under the provisions of s 10 of the Crimes (Sentencing Procedure) Act 1999. However, I have concluded that this case is “serious”, but not “worst case”, and sits on the “scale” at 60-70% of the most serious case. EPA v Orange City Council (Stein J, 50045 of 1995, 23 June 1995).

135. In all the circumstances the matter at hand is too serious, and the need for general deterrence too great, for this case to attract the leniency allowed by s10 - it is not a “trivial” offence and there are no “extenuating circumstances” (such as the section contemplates) in its commission.

136. I will allow a discount of approximately 10% for the Defendant’s guilty plea and the other mitigating features I have discussed. R v Thomson [2000] NSWCCA 309.

Orders

137. The court’s orders will, therefore, be:

(i) The Defendant is convicted of the offence charged in the summons.
(ii) The Defendant is ordered to pay a fine of $36,000, in accordance with the provisions of the Fines Act 1996.
(iii) The Defendant is ordered to pay the just and reasonable costs of the Prosecutor, as agreed, or as assessed according to law, within three months after such agreement or assessment.
(iv) All the exhibits may be returned.

CITATION:	EPA v Fletcher [2001] NSWLEC 104
PARTIES:	PROSECUTOR Environment Protection Authority DEFENDANT Leslie James Fletcher
FILE NUMBER(S):	50016 of 2000
CORAM:	Sheahan J
KEY ISSUES:	Environmental Offences :- land used as a waste facillity without lawful authority - plea of guilty to part of charge
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Environmental Planning and Assessment Act 1979 Environmental Offences and Penalties Act 1989 Local Government Act 1919 Protection of the Environment Operations Act 1997 Waste Minimisation & Management Act 1995 s 64 Waste Minimisation & Management Regulaltion 1996 Hawkesbury City Local Environmental Plan 1989
CASES CITED:	Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404; Brown v EPA & Anor (1992) 78 LGERA 119; EPA v Daracon Engineering Pty Ltd (1998) 97 LGERA 415; EPA v Orange City Council (Stein J, 50045 of 1995, 23 June 1995); Holroyd City Council v Murdoch (1994) 82 LGERA 197; Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132; Lizzio & Anor v Ryde Municipal Council (1983) 155 CLR 211; Proudman v Dayman (1994) 67 CLR 536; Regina v Dodsworth (1837) 8 Car.&P.467; R v Minchington (1998) 104 A.Crim.R 502; R v Olbrich (1999) 199 CLR 270; R v Thomson [2000] NSWCCA 309; Surrey County Council v Battersby [1965] 2 QB 194; Taylor v Hornsby Shire Council (1990) 69 LGRA 281
DATES OF HEARING:	18/12/2000-20/12/2000, 9/02/01
DATE OF JUDGMENT:	05/31/2001
LEGAL REPRESENTATIVES:	PROSECUTOR Barrister Mr D Buchanan SC Solicitors EPA Legal Branch DEFENDANT Solicitor Mr J Simpson John Simpson & Co