Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie

[2019] NSWCCA 174

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie [2019] NSWCCA 174
Hearing dates:	9-10 July 2019
Date of orders:	02 August 2019
Decision date:	02 August 2019
Before:	Preston CJ of LEC at [1]; Davies J at [411]; Adamson J at [412]
Decision:	(1) The Court answers the submitted questions as stated in [410]. (2) The Land and Environment Court is to redetermine the proceedings in accordance with the answers given to the submitted questions by this Court.
Catchwords:	APPEAL AND REVIEW – question of law stated under Criminal Appeal Act s 5AE during summary proceedings in Land and Environment Court – offence of using land as a waste facility without lawful authority – whether prosecutor permitted to make second s 5AE request in substantially different form to first request – meaning of “waste” – whether recycled materials deposited on land in stockpiles met definition of waste – whether stockpiling of materials on land a scheduled activity – whether depositing waste on land was the scheduled activity of waste disposal by application to land – whether temporary stockpiling of waste on land was the scheduled activity of waste storage – meaning of “asbestos waste” – whether waste contained asbestos – application of exemption granted under regulations – effect of exemptions that activity a non-scheduled activity – statutory exception to onus of proof – defendants bore onus of proving lawful authority – defendants bore onus of proving exemptions apply – no lawful authority pursuant to development consent or other approval – whether continuing offence proven – whether offences time barred – errors of law established – proceedings remitted to Land and Environment Court for determination in accordance with the answers given to the submitted questions   WORDS AND PHRASES – “waste” – “waste facility” – “waste disposal by application to land” – “waste storage” – “asbestos waste” – “without lawful authority”
Legislation Cited:	Crimes Act 1900 Criminal Appeal Act 1912 s 5AE Environmental Planning and Assessment Act 1979 s 4.2 Evidence Act 1995 Protection of the Environment Operations (Waste) Regulation 2005 cll 3A, 3B, 51, 51A Protection of the Environment Operations (Waste) Regulation 2014 Protection of the Environment Operations Act 1997 ss 5, 48, 88, 144, 169, 216, 258, 286, Sch 1 cll 1, 39, 40, 41, 42 Protection of the Environment Operations Amendment Act 2005 Waste Avoidance and Resource Recovery Act 2001
Cases Cited:	4nature Incorporated v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; [2017] NSWCA 191 Australian Gaslight Co v The Valuer General (1940) 40 SR (NSW) 126 Australian Tea Tree Oil Research Institute v Industry Research and Development Board (2002) 124 FCR 316; [2002] FCA 1127 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404 Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249; [1990] HCA 41 CIC Insurance Limited v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2 Commissioner of Taxation v Industrial Equity Ltd (2000) 98 FCR 573; [2000] FCA 420 Director of Public Prosecutions v United Telecasters Sydney Ltd (1990) 168 CLR 594; [1990] HCA 5 Dowling v Bowie (1952) 86 CLR 136; [1952] HCA 63 Electricity Trust of South Australia v Krone (Australia) Technique Pty Ltd (1994) 51 FCR 540 Environment Protection Authority v Ampol Ltd (1993) 81 LGERA 433 Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79 Environment Protection Authority v Foxman Environmental Development Services Pty Ltd [2015] NSWLEC 105 Environment Protection Authority v Hardt (2006) 148 LGERA 61; [2006] NSWLEC 438 Environment Protection Authority v Land and Environment Court (NSW) (2004) 134 LGERA 140; [2004] NSWCA 50 Environment Protection Authority v Terrace Earthmoving Pty Ltd (2013) 84 NSWLR 679; [2013] NSWCCA 180 Environment Protection Authority v Terrace Earthmoving Pty Ltd (No 3) (2016) 217 LGERA 222; [2016] NSWLEC 50 Ex parte McGavin; Re Berne (1946) 46 SR (NSW) 58 Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157 Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180 Hardt v Environment Protection Authority (2007) 156 LGERA 337 IMF (Australia) v Sons of Gwalia Ltd (2005) 143 FCR 274 Mouawad v Hills Shire Council (2013) 199 LGERA 28; [2013] NSWLEC 165 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Pullen v Smedley [2017] NSWSC 1721 Shannongrove Pty Ltd v Environment Protection Authority (2013) 84 NSWLR 668; [2013] NSWCCA 179 Sharp Corp of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 Sherritt Gordon Mines Ltd v Federal Commissioner of Taxation [1977] VR 342 State of Western Australia v Minister for Aboriginal and Torres Strait Islander Affairs (1994) 49 FCR 507 Talay v R [2010] NSWCCA 308 The Ombudsman v Moroney [1983] 1 NSWLR 317 Tovir Investment Pty Ltd v Waverley Council [2014] NSWCA 379 Vines v Djordjevitch (1955) 91 CLR 512; [1955] HCA 19 Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 5) [2013] NSWLEC 68 Wong v Minster for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722
Texts Cited:	NSW Government Gazette No 114 on 10 September 2010 NSW Government Gazette No 108 on 19 October 2012 Macquarie Dictionary 5th Edition
Category:	Principal judgment
Parties:	Environment Protection Authority (Appellant) Grafil Pty Ltd (First Defendant) Robert Mackenzie (Second Defendant)
Representation:	Counsel: Ms A Mitchelmore SC, with Mr P English (Appellant) Mr C Ireland (Defendants)   Solicitors: Legal Services Branch, Environment Protection Authority (Appellant)  Johnson Winter & Slattery Lawyers (Defendants)
File Number(s):	2016/157886 & 2016/157995
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Land and Environment Court Jurisdiction: Criminal Citation: [2018] NSWLEC 99 Date of Decision: 28 June 2018 Before: Pain J File Number(s): 2016/157886 & 2016/157995

HEADNOTE

[This headnote is not to be read as part of the judgment]

The Environment Protection Authority (“EPA”) prosecuted Grafil Pty Ltd (“Grafil”) under s 144(1) of the Protection of the Environment Operations Act 1997 (“POEO Act”) for using land described as Lot 8 as a waste facility without lawful authority. Mackenzie, as the director of Grafil, was also charged for the offence against s 144(1), by virtue of s 169 of the POEO Act.

Grafil carried on the extraction of sand on Lot 8 pursuant to a development consent granted in 1977. In 2009, approval was granted under Part 3A of the Environmental Planning and Assessment Act 1979 (“EPA Act”) for extraction of sand on the nearby Lots 218 and 220, and the construction of various access roads.

Between 29 October 2012 and 15 May 2013, Grafil received various loads of material from recycling facilities. The material was stockpiled in 2 or 3 stockpiles on Lot 8, pending use as road base. The precise volume of material was not established beyond reasonable doubt; however a range of 24,000 – 44,000 tonnes was identified. Asbestos was also detected in the stockpiles.

Grafil and Mackenzie pleaded not guilty to the charges in the Land and Environment Court. The proceedings raised the construction of various provisions of the POEO Act and Protection of the Environment Operations (Waste) Regulation 2005 (“Waste Regulation”).

The terms “waste” and “waste facility” were defined in the Dictionary to the POEO Act. Waste facility was defined to mean “any premises used for the storage, treatment, processing, sorting or disposal of waste (except as provided by the regulations)”. The definition of “waste” involved five limbs, including relevantly paragraph (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”. Clause 3B(1) of the Waste Regulation prescribed those circumstances as the application to land by the methods in 3B(1)(a)(i)-(iii), including relevantly “depositing on the land”.

The parties also contested whether Grafil had proceeded without lawful authority. Section 48 of the POEO Act provided that “premises-based scheduled activities” required an environment protection licence (EPL). Schedule 1 Pt 1 of the POEO Act listed premises-based scheduled activities, including relevantly cl 39 “waste disposal by application to land” and cl 42 “waste storage”. Grafil contended it did not require an EPL due to the operation of two notices of exemption granted under cll 51 and 51A of the Waste Regulation. Section 144(2) provided that “the defendant bears the onus of proving that there is lawful authority to use the land concerned as a waste facility”, however the parties contested who bore the onus of proving the applicability of the exemptions. Grafil also contended that its activities were ancillary to the 1977 development consent and Pt 3A approval.

In the Land and Environment Court, the trial judge found that the defendants were not guilty, but did not make final orders. The EPA brought a stated case pursuant to s 5AE(1) of the Criminal Appeal Act 1912 alleging various legal errors in the findings of the trial judge.

There were 15 questions submitted on behalf of the prosecutor, and one further “threshold question” raised by the defendants. These questions were grouped into the following categories:

(i) Whether s 5AE of the Criminal Appeal Act allowed the EPA to make a second request substantially different to the request as first made and, whether the EPA waived or otherwise abandoned the right to make a s 5AE request in those circumstances (the threshold question).

(ii) Was the material in the stockpiles “waste” as defined?

(iii) Was the activity of stockpiling material the scheduled activity of “waste disposal (application to land)” so as to require a licence?

(iv) Was the activity of stockpiling the material the scheduled activity of “waste storage” so as to require a licence?

(v) Was the activity of stockpiling the material exempted so as to be a non-scheduled activity for which a licence is not required? Who bore the onus of proving that the activity was exempted due to the operation of the notices of exemption?

(vi) What was the legal consequence of the presence of asbestos in the material in the stockpiles?

(vii) Was the activity of stockpiling the material without the lawful authority of a development consent?

(viii) Was a continuing offence proven?

(ix) Were the charged offences time barred?

The Court (Preston CJ of LEC, Davies and Adamson JJ agreeing) held:

In relation to (i):

(1) Section 5AE of the Criminal Appeal Act permits the EPA to make a request before the completion of the proceedings: at [80], [411], [414]; the form of question first submitted is not relevant to the competency of the final request under s 5AE(1): at [81], [411], [412]; the form of the questions can change, even substantially, between the first and final submitted questions: at [83], [411], [419]; section 5AE did not limit the EPA to make only one request: at [84], [411], [412]; any delay in settling the questions finally submitted did not affect the competency of the questions: at [85], [411], [412];

(2)   Unless a proposed question of law is “so obviously frivolous and baseless that its submission would be an abuse of process”, the trial judge is obliged on request by the Crown to submit a question of law: at [81], [411], [412]; the obligation on the trial judge to submit a question of law is not dependent on the identification of any particular question of law, but only on the request: at [82], [411], [417];

Ex parte McGavin; Re Berne (1946) 46 SR (NSW) 58, Talay v R [2010] NSWCCA 308 and Environment Protection Authority v Land and Environment Court (2004) 134 LGERA 140 followed.

(3) Grafil did not prove that the EPA had waived its right to submit a s 5AE request: at [84], [411], [412];

(4)   The EPA’s conduct was not an abuse of process: at [86], [411], [421];

In relation to (ii):

(5) The trial judge misconstrued the definition of “waste” in the Dictionary to the POEO Act by finding that if material was “processed, recycled, re-used or recovered” it could only fall into paragraph (d) of the definition: at [115], [132], [411], [412]; the paragraphs of the definition of waste are not mutually exclusive: at [115], [411], [412];

(6) The trial judge misconstrued paragraph (d) of the definition of waste and cl 3B of the Waste Regulation by finding that paragraph (d) and cl 3B raised an independent first question of whether a substance is applied to land before the question of whether a substance is applied to land by one of the methods prescribed by cl 3B(1)(a)(i)-(iii): at [153], [411], [412]; clause 3B(1)(a)(i)-(iii) prescribes what is application to land for the purposes of paragraph (d) of the definition of waste: at [153], [411], [412];

(7) On the facts found by the trial judge the material in the stockpiles was waste within the meaning of paragraph (d) as there was “depositing on the land” within the meaning of cl 3B(1)(a) of the Waste Regulation: at [157], [411], [412]; the trial judge erred by holding that the material was not waste, as the facts necessarily fell within the statutory description: at [157], [411], [412];

In relation to (iii):

(8) The trial judge erred by importing a two-step inquiry into the definition of waste disposal by application to land: at [171], [411], [412]; the scheduled activity labelled as “waste disposal by application to land” is conclusively and exhaustively defined to be the application to land by the methods in (a)-(c) of cl 39(1): at [171], [411], [412];

(9) The material received off site and deposited in the stockpiles involved application to land by the method specified in paragraph (a) of cl 39(1), “depositing on the land”: at [173], [411], [412];

In relation to (iv):

(10) The trial judge erred in construing the concept of “storage” as excluding temporary stockpiling of material; the temporary storage of waste in stockpiles pending the transfer of the waste to another place amounted to the scheduled activity of waste storage in cl 42 of Sch 1 to the POEO Act: at [189]-[193], [411], [412];

In relation to (v):

(11)   The general rule that the burden of proving every element of an offence rests on the prosecutor is subject to any statutory exception: at [222], [411], [412];

Director of Public Prosecutions v United Telecasters Sydney Ltd (1990) 168 CLR 594; [1990] HCA 5 considered.

(12) The express language in s 144(2) of the POEO Act indicates a legislative intention that the matter of lawful authority is an exception upon which the defendant bears the onus of proof: at [226], [411], [412];

(13) Grafil bore the onus of proving that it had lawful authority to use the land as a waste facility due to the operation of the notices of exemption granted under cll 51 and 51A of the Waste Regulation: at [228], [411], [412];

(14)   There are not different principles for construing statutory instruments to the principles for construing legislation or delegated legislation: at [257], [411], [412]; practical considerations do not permit a rewriting of the statutory instrument to provide a practical outcome: at [257], [411], [412];

Tovir Investment Pty Ltd v Waverley Council [2014] NSWCA 379 considered; Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 and 4nature Incorporated v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; [2017] NSWCA 191 followed.

(15)   The trial judge erred in construing the notices of exemption by adopting a practical approach inconsistent with the language of the statutory instruments: at [271]-[272], [411], [412];

(16)   The exemptions did not apply to Grafil’s activities as Grafil failed to comply with the conditions of the exemptions: at [294], [411], [412];

In relation to (vi):

(17)   The trial judge erred by finding that whether waste “contains asbestos” was a matter of fact and degree depending on the nature of the waste and the volume: at [323], [411], [412];

(18)   The definition of asbestos waste, being “any waste that contains asbestos”, does not depend on the absolute or proportionate amount of asbestos contained in the waste: at [325], [329], [411], [412]; waste that includes asbestos or has asbestos as its contents or constituent parts is asbestos waste: at [325], [411], [412];

Pullen v Smedley [2017] NSWSC 1721 and Environment Protection Authority v Foxman Environmental Development Services Pty Ltd [2015] NSWLEC 105 considered.

In relation to (vii):

(19) The offence element “without lawful authority” includes not only an absence of lawful authority under the POEO Act, but also not obtaining and carrying out development in accordance with a development consent under the EPA Act: at [336], [411], [412];

Environment Protection Authority v Hardt (2006) 148 LGERA 61; [2006] NSWLEC 438, Hardt v Environment Protection Authority (2007) 156 LGERA 337 and Environment Protection Authority v Terrace Earthmoving Pty Ltd (No 3) (2016) 217 LGERA 222; [2016] NSWLEC 50, considered.

(20) The trial judge erred in finding that the stockpiling of material was ancillary or subordinate to the 1977 consent or the original Pt 3A approval as there was no evidentiary foundation for so finding: at [363], [373], [411], [412];

In relation to (viii):

(21)   The trial judge misdirected herself in determining whether the EPA had proven a continuing offence by wrongly focusing on the deposition of “non-exempt waste”: at [388], [411], [412];

(22)   The trial judge failed to exercise jurisdiction by not addressing the manner of breach of storing waste on the land: at [393], [411], [412]; and

In relation to (ix):

(23)   The trial judge misdirected herself in determining whether the offences were time barred by asking whether “non-exempt waste” was deposited on the relevant dates: at [407], [411], [412].

Judgment

1. PRESTON CJ OF LEC: Grafil Pty Ltd (“Grafil”) was the occupier of land at 2684 Nelson Bay Road, Salt Ash, formerly described as Lot 8 in DP833768 (“Lot 8”) and Lot 102 in DP1017462 (“Lot 102”). Grafil carried out on Lot 8 the development of the extraction of sand pursuant to a development consent granted in 1977 under the then Local Government Act 1919. Grafil produces different grades of sand for purposes such as horticulture, turf grass, building and construction.

2. Grafil was issued an environment protection licence (EPL 12108) under the Protection of the Environment Operations Act 1997 (“POEO Act”) on 31 May 2005 authorising the carrying out of the scheduled activities of “land based extractive activity” and “crushing, grinding or separating works”. That licence continued in force during 2012 and 2013. By operation of s 258(2) of the POEO Act, Grafil, being the holder of the licence in respect of Lot 8, is taken to be the occupier of Lot 8.

3. Between 29 October 2012 and 15 May 2013, Grafil received various loads of material from four recycling facilities in Sydney. The material was stockpiled in two or three stockpiles on Lot 8. Although the precise volume of material in the stockpiles was not established beyond reasonable doubt, a range of 24,000 – 44,000 tonnes was identified.

4. Asbestos was detected in the stockpiles in numerous samples. The precise volume of asbestos was not established beyond reasonable doubt. One report recorded 634.64 grams of asbestos in the bulk samples. The amount of bonded asbestos in the stockpiles was found to be minor and the amount of friable asbestos was found to be very small.

5. The Environment Protection Authority (“EPA”) prosecuted Grafil for using Lot 8 as a waste facility without lawful authority, an offence under s 144(1) of the POEO Act. In the summons commencing the proceedings, the EPA alleged that the waste was “material comprising, amongst other things, mixed construction and demolition waste and asbestos, which was deposited at the Premises, to form three stockpiles”. The EPA allege that the manner of breach was that “the Premises was used as a waste facility for storing and/or disposal of waste on the land.”

1. Mr Robert Mackenzie is a director of Grafil. The EPA prosecuted Mr Mackenzie for committing the same offence against s 144(1) of the POEO Act by reason of the executive liability provision in s 169(1) of the POEO Act.

2. The Land and Environment Court (Pain J) found Grafil, and hence Mr Mackenzie, not guilty of committing the offence against s 144(1) of the POEO Act with which they were charged.

3. The trial judge, at the request of the EPA, submitted under s 5AE(1) of the Criminal Appeal Act 1912, questions of law arising at or in reference to the proceedings to the Court of Criminal Appeal.

4. Grafil and Mr Mackenzie (who I will refer to collectively as Grafil as their interests and arguments are coterminous) contested that the request by the EPA for the trial judge to submit questions of law was a competent request or allowed by s 5AE of the Criminal Appeal Act. They raise the competency of the EPA’s request as a threshold question. I disagree with Grafil that the request was not competent and would answer the threshold question accordingly.

5. The questions submitted by the trial judge generally concern the trial judge’s construction and application of the offence provision (s 144 of the POEO Act) and other relevant provisions of the POEO Act and regulations engaged by the offence provision. The EPA contended that the trial judge misconstrued and misapplied, in various ways, these relevant statutory provisions. For the most part, I agree with the EPA. These submitted questions should be answered appropriately to my conclusions on the questions. The Court below should redetermine the proceedings in light of these answers to the questions.

The offences charged and the submitted questions raised

11. The offence with which Grafil was charged was against s 144(1) of the POEO Act, which provided:

“(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.”

12. The elements of this offence are that:

1. the person is the owner or occupier of any land,

2. that person uses the land, or causes or permits the land to be used, as a waste facility, and

3. that use is without lawful authority.

13. The onus of proving elements (a) and (b) rests on the prosecutor. The onus of proving element (c) was in contest. Section 144(2) of the POEO Act provides:

“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.”

14. Notwithstanding this provision, the parties disagreed as to its meaning and application. The EPA contended that once it has established that the impugned activity was of a nature for which lawful authority was required, the defendants bore the onus to prove, on the balance of probabilities, that they had all relevant lawful authority. For the POEO Act, this would involve proving that they had a licence authorising the carrying out of the activity on the premises or that, by reason of an exemption, the activity was a non-scheduled activity for which a licence was not required. For the Environmental Planning and Assessment Act 1979 (“EPA Act”), this would involve proving that they had a development consent or other approval under the EPA Act approving the carrying out of the activity on the land and that the activity was carried out in accordance with the development consent or other approval.

15. Grafil contended to the contrary that the onus rests on the prosecutor to prove both that lawful authority was required and had not been obtained. This included proving that any exemptions did not apply.

16. The trial judge held that the prosecutor was required to prove beyond reasonable doubt that lawful authority was required and was absent before the onus of proof shifted to the defendant under s 144(2) of the POEO Act. The EPA challenged this finding in one of the submitted questions (question 8).

17. As to element (a) of the offence, there was no contest that Grafil was an occupier of the land of Lot 8 on which the materials were stockpiled. Grafil was the holder of a licence for the premises and was thereby taken to be the occupier of the premises. Element (a) was therefore satisfied.

18. As to element (b), there was no contest that Grafil was using the land of Lot 8, but the issue was whether Grafil was using the land as a “waste facility”.

19. A “waste facility” is defined in the Dictionary to the POEO Act to mean “any premises used for the storage, treatment, processing, sorting or disposing of waste (except as provided by the Regulations)”.

20. Grafil was charged with using Lot 8 as a waste facility by carrying out two of the actions specified in this definition of “waste facility”, namely storing and/or disposing of waste.

21. “Waste” is defined in the Dictionary to the POEO Act in an inclusive manner:

“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.”

22. Some of these paragraphs of the definition of “waste” are in turn elaborated by further definitions or regulations.

23. The concept of the “environment” in paragraph (a) of the definition is defined in the Dictionary to the POEO Act widely:

“environment means  components of the earth, including:

(a)  land, air and water, and

(b)  any layer of the atmosphere, and

(c)  any organic or inorganic matter and any living organism, and

(d)  human-made or modified structures and areas,

and includes interacting natural ecosystems that include components referred to in paragraphs (a)–(c).”

24. A “substance”, referred to in each of the paragraphs of the definition of “waste”, is defined in the Dictionary to the POEO Act to include a “matter or thing”.

25. Paragraph (d) refers to “circumstances prescribed by the regulations” in which substances are applied to land. Clause 3B of the Protection of the Environment Operations (Waste) Regulation 2005 (“Waste Regulation”) prescribes the circumstances for the purposes of paragraph (d):

“(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.”

26. Paragraph (e) of the definition of “waste” refers to a substance being prescribed by the regulations to be waste. Clause 3A of the Waste Regulation at the time of the charge period provided:

“For the purposes of paragraph (e) of the definition of waste in the Dictionary to the Act, a substance is prescribed as waste if the substance:

(a) is not otherwise included as waste within the meaning of the Act, and

(b) is reasonably capable of being applied to land at a scheduled waste facility, and

(c) is received by a waste facility to which section 88 of the Act applies.”

27. Section 88 of the POEO Act provided, so far as is relevant:

“(1) This section applies to waste facilities that are required to be licensed under this Chapter, but it does not apply to a facility that the EPA determines is used solely for the purposes of re-using, recovering, recycling or processing waste other than liquid waste.

(2) The occupier of a waste facility to which this section applies is required to pay to the EPA in respect of all waste received at the facility such contribution as is prescribed by the regulations.”

28. Waste facilities required to be licensed under Ch 3 of the POEO Act are those activities that, firstly, are scheduled activities and, secondly, for which Sch 1 of the POEO Act indicates that a licence is required for premises at which the activity is carried out. Section 5(1) of the POEO Act provides that the activities listed in Schedule 1 to the POEO Act are scheduled activities. Clause 1(1) of Sch 1 of the POEO Act provides that “any activity that is declared by this Part to be a scheduled activity is taken to be an activity for which a licence is required for the premises at which it is carried out (the activity is premises-based)”. Schedule 1 lists the various activities, including, of relevance to waste, in cl 39 “waste disposal (application to land)”, in cl 40 “waste disposal (thermal treatment)”, in cl 41 “waste processing (non-thermal treatment)” and in cl 42 “waste storage”.

29. Section 48 of the POEO Act makes it an offence to carry out a scheduled activity for which a licence is required without holding a licence authorising that activity. Section 48 provides:

“(1) Application of section

This section applies to scheduled activities where Schedule 1 indicates that a licence is required for premises at which the activity is carried on.

(2) Offence

A person who is the occupier of any premises at which any such scheduled activity is carried on is guilty of an offence, unless the person is, at the time that activity is carried on, the holder of a licence that authorises that activity to be carried on at those premises.”

30. The trial judge held that the material in the stockpiles on Lot 8 fell within the description of “any processed, recycled, re-used or recovered substance produced wholly or partly from waste” in the opening phrase of paragraph (d) of the definition of “waste”; as a consequence, the material could not fall within any other paragraph of the definition of “waste”; and the waste that was stockpiled on Lot 8 was not “applied” to the land, either in the ordinary meaning of the word “applied” or in the circumstances prescribed in cl 3B of the Waste Regulation. These findings are challenged by the EPA in two submitted questions (questions 1 and 5).

31. As to element (c) of the offence, a person may be found to have used land as a waste facility without lawful authority in four ways:

1. where s 48 of the POEO Act and Sch 1 to the POEO Act require a licence for premises at which a scheduled activity is carried out, the person who is the occupier of the premises on which the scheduled activity is carried out is not the holder of a licence that authorises that activity to be carried out on at those premises;

2. where the POEO Act, Waste Regulation and a notice of exemption exempt a responsible person from s 48 of the POEO Act in respect of cll 39 and 42 of Sch 1 to the POEO Act in relation to activities involving the relevant waste specified in the notice of exemption, the responsible person does not meet all requirements specified in the notice of exemption;

3. where the activity involves the transportation, disposal, re-use or recycling of any type of asbestos waste, regardless of whether the activity is required to be licensed, the person who carries out the activity does not comply with the requirements specified in cl 42 of the Waste Regulation in relation to the activity concerned; and

4. where the use of land as a waste facility requires development consent under the EPA Act, the person carries out that development without development consent having been granted for the use or not in accordance with any development consent that has been granted for the use.

32. Starting with the first way, cl 1(1) of Sch 1 to the POEO Act provides that, for the purposes of s 48 of the POEO Act, any activity that is declared by Part 1 of Sch 1 to the POEO Act to be a scheduled activity is taken to be an activity for which a licence is required for the premises at which it is carried out. Schedule 1 lists two types of premises-based activities of relevance to the charge that Grafil used Lot 8 for “storing and/or disposing of waste” on the land: “waste disposal (application to land)” and “waste storage”. These activities are defined in Sch 1 as follows:

“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 100 tonnes of waste tyres per year or 10,000 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 the 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.

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

(a) the storage of stormwater,

(b) the storage of up to 60 tonnes at any time of grease trap waste, waste lead acid batteries or waste oil collected for recovery (but not when accompanied by any other kind of waste),

(c) the storage of sewage within a sewage treatment system,

(d) the storage and transfer of liquid waste that is generated and treated on site prior to sewer discharge, or lawful discharge to waters.

(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, clinical or related waste or asbestos waste 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.”

33. If Grafil’s use of Lot 8 involved either or both of these activities, Grafil needed a licence authorising the activity or activities to be carried out on Lot 8. It was not in contest that Grafil did not have such a licence authorising the carrying out of these activities on Lot 8.

34. In relation to the scheduled activity of “waste disposal (application to land)”, the trial judge found that the stockpiling of materials on Lot 8 did not involve the scheduled activity of “waste disposal (application to land)” because there was not “waste disposal by application to land” within the chapeau of the description of the activity of “waste disposal (application to land)”; the methods of application specified in paragraphs (a) to (c) of the description of that activity do not qualify the words “waste disposal by application to land” in the chapeau; and an application to land requires more than placement of materials on land temporarily before their application to land for the intended purpose of providing road base to construct an access road. The EPA challenged these findings in two submitted questions (questions 3 and 4).

35. In relation to the scheduled activity of “waste storage”, the trial judge found that the stockpiling of materials on Lot 8 did not involve the scheduled activity of “waste storage” because there was a distinction between the temporary stockpiling of material for the purposes of applying it to land for road construction and the separate activity of waste storage; the stockpiles were not being used for storage pending the transfer of material; and the material was intended to be applied to land owned by an entity closely related to Grafil and engaged with Grafil in the same enterprise. The EPA challenged these findings in two of the submitted questions (questions 6 and 7).

36. The second way in which a person may not have lawful authority to use land as a waste facility is if the POEO Act and Waste Regulation and any notice of exemption exempt a person from the requirement to be a holder of a licence authorising the carrying out of a scheduled activity on premises, but the person does not comply with all requirements specified in the notice of exemption.

37. Section 286(1) of the POEO Act provides that the regulations may exempt persons, premises and activities, amongst other matters or things, from specified provisions of the POEO Act or the regulations. The Waste Regulation exempts certain persons and certain activities. Clause 51 of the Waste Regulation contains general provisions relating to exemptions. Clause 51 provides:

“(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.

(5) An application for a specific exemption must:

(a) be in the approved form, and

(b) be accompanied by such fee (if any) as the EPA may determine, and

(c) be accompanied by such information, documents or evidence as may be required by the EPA for the purposes of determining whether the exemption should be given.

(6) An exemption under this clause is subject to such conditions as may be imposed by the EPA.

(7) In giving an exemption under this clause, the EPA may, in relation to a general exemption, and must, in relation to a specific exemption, identify a person (or class of persons) to whom the exemption relates (the responsible person).

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

(9) A specific exemption may be amended or revoked by the EPA by way of written notice given to the responsible person.

(10) If an exemption is given under this clause for which a responsible person is identified, the responsible person must comply with the conditions to which the exemption is subject.”

38. Clause 51A of the Waste Regulation makes particular exemptions relating to certain waste. Clause 51A provides:

“(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

(b) any other waste that is used in connection with a process of thermal treatment, and

(c) coal washery rejects (within the meaning of Part 2).

(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.”

39. Pursuant to cll 51 and 51A of the Waste Regulation, the EPA has granted two general exemptions of relevance. The first is referred to as “The ‘continuous process’ recovered fines exemption September 2010” (“the ‘continuous process’ recovered fines exemption”) that was published in the NSW Government Gazette No 114 on 10 September 2010. The second is referred to as “The excavated natural material exemption 2012” (‘the excavated natural material exemption”) that was published in the NSW Government Gazette No 108 on 19 October 2012.

40. The “continuous process” recovered fines exemption identifies the relevant waste that is the subject of the exemption as “‘continuous process’ recovered fines that meet the requirements of section 7” (in section 6). The term “‘continuous process’ recovered fines” means “a soil or sand substitute with a typical particle size of less than 9.5mm that is derived from the processing of mixed construction and demolition waste including residues from the processing of skip bin waste.”

41. Section 5 of the notice of exemption describes the exemption:

“5. 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.

This Notice of Exemption is a general exemption for the purposes of clause 51(3) of the Regulation.”

42. The two types of responsible person are the “processor” and the “consumer”. Both terms are defined in section 6 of the notice of exemption. Of relevance to this case, “consumer” is defined to mean “a person who applies, causes or permits the application to land of “continuous process” recovered fines 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 fines are applied.”

43. The trial judge found that Grafil was a “consumer” for the “continuous process” recovered fines exemption. The EPA challenged this finding in submitted question 12.

44. The provisions from which the responsible person is exempt under the notice of exemption includes section 48 of the POEO Act in respect of cll 39 and 42 of Sch 1 to the POEO Act. Section 48 is the statutory provision that requires a person to be the holder of a licence that authorises the carrying out of a scheduled activity on premises. Clauses 39 and 42 of Sch 1 to the POEO Act are two of the listed scheduled activities, being “waste disposal (application to land)” and “waste storage” respectively.

45. The conditions with which a responsible person must comply in order to be exempt from, amongst other provisions, s 48 of the POEO Act in respect of cll 39 and 42 of Sch 1 to the POEO Act are, for a consumer, “all requirements specified in section 7, 9, 10 and 11.”

46. Section 7 of the notice of exemption specifies the general conditions with which the responsible person must comply:

“7. This Notice of Exemption is subject to the following conditions:

7.1. The chemical concentration or other attribute of the “continuous process” recovered fines 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 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 “continuous process” recovered fines can only be applied to land for the purposes of construction or landscaping. 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.”

47. Section 9 specifies the particular conditions that must be met by the consumer for the exemption to apply:

“9. The following conditions must be met by the consumer for this exemption to apply:

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.”

48. Section 10 of the notice of exemption specifies the chemical and other material property requirements for the relevant waste of “continuous process” recovered fines:

“This Notice of Exemption only applies to ‘continuous process’ recovered fines where the chemical and other attributes listed in Column 1 of Table 2 comply with the chemical concentrations and other values listed in Column 2, Column 3 and Column 4 of Table 2, when analysed according to test methods specified in Column 5 of Table 2.”

49. Table 2 is then set out specifying the particular chemical and other material property requirements.

50. Section 11 of the notice of exemption specifies the sampling and testing requirements:

“11. This Notice of Exemption only applies to ‘continuous process’ recovered fines sampled according to the requirements in Table 3.”

51. Table 3 is then set out specifying the sampling and testing requirements.

52. Section 5.2 of the notice of exemption specifies the consequence of the responsible person complying with the conditions of the notice of exemption: the activity referred to in cll 39 or 42 of Sch 1 of the POEO Act, from which the responsible person is exempt, is taken to be a non-scheduled activity for the purposes of the POEO Act. Accordingly, the responsible person is not required by s 48 of the POEO Act to be the holder of a licence authorising the carrying out of the activity on the premises.

53. The excavated natural material exemption identifies the relevant waste the subject of the exemption as “excavated natural material that meets the requirements of section 7” (in section 6). The term “excavated natural material” is defined in section 6 of the notice of exemption to mean:

“Excavated natural material is naturally occurring rock and soil (including but not limited to materials such as sandstone, shale, clay and soil) that has:

(a) been excavated from the ground, and

(b) contains at least 98% (by weight) natural material, and

(c) does not meet the definition of Virgin Excavated Natural Material in the Act.

Excavated natural material does not include material located in a hotspot; that has been processed; or that contains asbestos, Acid Sulfate Soils (ASS), Potential Acid Sulfate soils (PASS) or sulfidic ores.”

54. Section 5 of the notice of exemption describes the exemption:

“5. 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

• where the responsible person complies with the conditions referred to in Column 3 of the table, and

• in the case of a consumer, in relation to the premises where the waste is applied to land as permitted by clause 7.2.

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.

This Notice of Exemption is a general exemption for the purposes of clause 51(3) of the Regulation.”

55. The two types of responsible person are the “generator” and the “consumer”. These terms are defined in s 6. Of relevance, “consumer” is defined to mean “a person who applies, causes or permits the application to land of excavated natural material within the definitions of ‘application to land’ in accordance with the Act. The consumer may be the landholder responsible for the land to which excavated natural material is applied.”

56. The trial judge found that Grafil was a “consumer” for the excavated natural material exemption. The EPA challenged this finding in submitted question 12.

57. The provisions from which the responsible person is exempt include s 48 of the POEO Act in respect of cll 39 and 42 of Sch 1 to the Act. The conditions that must be met in order for the responsible person to be exempt are, for a consumer, “all requirements specified in section 7 and 9.”

58. Section 7 specifies the general conditions that must be met:

“7. This Notice of Exemption is subject to the following conditions:

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

7.1.1. For characterisation tests, the maximum average (based on the arithmetic mean) concentration or value listed in Column 2 of Table 2, and

7.1.2. The absolute maximum concentration or value listed in Column 3 of Table 2.

7.2. The excavated natural material can only be applied to land as engineering fill or used in earthworks.”

59. Section 9 of the notice of exemption specifies the particular conditions that must be met by the consumer for the exemption to apply:

“9. The following conditions must be met by the consumer for this exemption to apply:

9.1. The consumer must ensure that the excavated natural material is fit for purpose and poses minimal risk of harm to human health or the environment.

9.2. The consumer must keep records of the quantity of the excavated natural material received as well as the suppliers’ name and address, for a period of three years.

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

60. Again, cl 5.2 of the notice of exemption specifies the consequence of the responsible person complying with the conditions of the notice of exemption: the activity referred to in cll 39 or 42 of Sch 1, from which the person is exempt, is taken to be a non-scheduled activity for the purposes of the POEO Act. Accordingly, the responsible person is not required by s 48 of the POEO Act to be the holder of a licence authorising the carrying out of the activity on the premises.

61. The trial judge found that both exemptions applied so as to exempt Grafil from the requirement to be the holder of a licence authorising the carrying out of the scheduled activities of waste disposal (application to land) or waste storage. In so finding, the trial judge construed each notice of exemption, and the conditions to be met by the responsible person for the exemption to apply, firstly, “sensibly and practically”; secondly, as not requiring the consumer, as opposed to the processor or generator, to meet all requirements specified in Column 3 of Table 1 in each notice of exemption; and thirdly, as not precluding Grafil from relying on the exemptions if it did not meet conditions of the notices of exemptions to keep certain records of the quantity of the relevant waste received at the premises (condition 9.1 of the “continuous process” recovered fines exemption and condition 9.2 of the excavated natural material exemption).

62. The EPA challenged these findings in two submitted questions (questions 1 and 11).

63. The third way in which a person using land as a waste facility may not have lawful authority is if the activity involves the transportation, disposal, re-use or recycling of any type of asbestos waste and the person does not comply with cl 42 of the Waste Regulation. Clause 42 provides:

“(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.”

64. The term “asbestos waste” is defined in cl 50(1) of Sch 1 to the POEO Act to mean “any waste that contains asbestos”. “Asbestos” is defined to mean:

“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.”

65. At the trial, the EPA did not allege that Grafil was using Lot 8 as a waste facility without lawful authority by reason of Grafil not complying with cl 42 of the Waste Regulation. Instead, the presence of asbestos in the stockpiles on Lot 8 was relevant in two ways. First, the storage of more than 5 tonnes of “asbestos waste” on land makes the activity the scheduled activity of “waste storage” under cl 42(3)(a) of Sch 1 to the POEO Act. Second, the activity will not be exempt from s 48 of the POEO Act in respect of cll 39 and 42 of Sch 1 to the POEO Act under the excavated natural material exemption if the material in the stockpiles “contains asbestos”, as the definition of “excavated natural material” excludes material that contains asbestos.

66. The trial judge found that cl 42 of the Waste Regulation operated entirely separately from the resource recovery exemption provisions in cl 51 and 51A of the Waste Regulation; the “continuous process” recovered fines exemption should not be construed as if it contained a condition about asbestos; and the presence of asbestos is irrelevant to whether the “continuous process” recovered fines exemption applied to Grafil’s use of Lot 8.

67. The EPA challenged the trial judge’s findings construing and applying cl 42 of the Waste Regulation and cl 50 of Sch 1 to the POEO Act in submitted question 9.

68. The trial judge, in any event, held that whether the stockpiles of materials on Lot 8 can be considered “asbestos waste” as defined is a matter of fact and degree and depended on the nature of the waste and its volume. The EPA challenged this finding, in submitted question 10, not as a finding of fact, but rather as misinterpreting the defined term “asbestos waste”.

69. As to the fourth way that a person may be found to have used land as a waste facility without lawful authority, the requirement of lawful authority is not limited to having lawful authority under the POEO Act but extends to having lawful authority under other planning and environmental laws, including the EPA Act. If an environmental planning instrument made under the EPA Act provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless such a consent has been obtained and is in force and the development is carried out in accordance with the consent and the instrument: see s 76A, now s 4.2(1) of the EPA Act.

65. In this case, a development consent under the predecessor statute to Part 4 of the EPA Act, the Local Government Act, had been granted in 1977 permitting the extraction of sand on Lot 8. By 2009, sand extraction and processing had moved onto land in the vicinity, although separated from Lot 8, being Lot 218 in DP 1044608 (Lot 218) and Lot 220 in DP 1049608 (Lot 220). Lots 218 and 220 are owned by Worimi Local Aboriginal Land Council. By agreement with that land council, Macka’s Sand Pty Ltd extracts sand on Lots 218 and 220, which is then processed by Grafil. Mr Mackenzie and his father are the directors of Macka’s Sand Pty Ltd.

66. Macka’s Sand Pty Ltd applied on 29 October 2008 and was granted on 20 September 2009 an approval (approval 08-0142) under Part 3A of the EPA Act for the extraction of sand on Lots 218 and 220 and the construction of access roads across Lot 3 in DP 739188 and the subject land Lot 8 (both owned by Mr Mackenzie and his father), Lot 227 in DP 1097995 (owned by Worimi Local Aboriginal Land Council) and Lot 13 in DP 753192 and Lot 101 in DP 753192 (an agreement existed with the owners of these lots to allow access to Lot 218). The Part 3A approval also required the upgrading of Lavis Lane which formed part of the access road to Lot 218 within six months of commencing operation on Lot 218.

67. On 30 November 2009, Macka’s Sand Pty Ltd was issued an environment protection licence (EPL 13218) authorising the carrying out of the scheduled activity of the extraction of sand on the premises of Lots 218 and 220. The licence EPL 13218 was varied on 19 January 2012 and 1 February 2013. By reason of s 258(2) of POEO Act, Macka’s Sand Pty Ltd, as the holder of the licence, was taken to be the occupier of Lots 218 and 220.

68. Two modifications were made to the Pt 3A approval. On 18 October 2012, Macka’s Sand Pty Ltd requested an alternate access road to Lot 218 across Lots 4, 1, 810, 58 and 122 (collectively referred to as the “Williamtown properties”). B & RB Mackenzie FT Pty Ltd was the registered proprietor of the Williamtown properties. The first modification was approved on 30 September 2013. This was over four months after the end of the charge period (which was 29 October 2012 to 15 May 2013). On 20 July 2015, a further request was made to modify the Pt 3A approval (the second modification). Amongst other things, the second modification requested that an access road cross Lots 1-3 in DP 118072. The second modification was approved on 15 March 2016.

69. The location of the originally approved access road was completely different to the location of the modified access road approved by the first modification. The originally approved access road (and Lavis Lane) approached the sand extraction site on Lot 218 from the west, while the modified access road approached the sand extraction site on Lot 218 from the north – there was no overlap in the location of the two access roads.

70. The trial judge found that the stockpiling of materials on Lot 8 during the charge period was ancillary or subordinate to the development authorised by the 1977 development consent and the original Pt 3A approval, notwithstanding that the stockpiled materials were not intended to be used as road base to construct the access road in the location approved in the 1977 development consent or the original Pt 3A approval, but instead were to be used at a later date, after the charge period, in the construction of an access road at the different location approved by the first modification of the Pt 3A approval. The EPA challenged the trial judge’s findings in submitted question 15.

71. An offence against s 144(1) of the POEO Act can be a continuing offence, as the penalty for an offence reveals, but whether a particular offence committed by an offender is a continuing one depends on the particular conduct constituting the offence. The trial judge found that the EPA had not proved that during the charge period a continuing offence took place because the EPA had not proved that during the charge period only “non-exempt waste” was deposited. In referring to non-exempt waste, the trial judge was referring to waste other than the relevant waste that was the subject of the “continuous process” recovered fines exemption and the excavated natural material exemption. The trial judge considered that these notices of exemption operated to exempt the relevant waste, so that the material comprising the relevant waste that was deposited on the land was not “waste” as defined, rather than to exempt the activities involving the relevant waste from being scheduled activities that required a licence. The EPA challenged these findings in submitted question 13.

72. The prosecution for the charged offences against Grafil and Mr Mackenzie had to be commenced “within but not later than three years after the date on which the offence is alleged to have been committed” (s 216(1)(a) of the POEO Act), as they were prescribed offences (s 216(6) of the POEO Act). The trial judge found that the proceedings were not commenced within this three year period because the EPA did not prove that there was disposal of “non-exempt material” in the period 11 May 2013 to 15 May 2013. The trial judge considered that, to avoid the time bar, the EPA needed to prove that non-exempt material was received on 11, 12, 13 or 14 May 2013 but the EPA did not prove that the particular loads of material delivered on particular days were non-exempt. The continued presence of stockpiled materials on Lot 8 did not prove that the charged offence continued after it was completed by the last act of depositing non-exempt waste. The trial judge did not consider whether the charged manner of breach of storing waste on the land was continuing so as to constitute a continuing offence.

73. The EPA challenged the trial judge’s finding that the charged offences were time barred by s 216(1)(a) of the POEO Act in submitted question 14.

The threshold question

79. Grafil raised a threshold question in two parts: first, whether s 5AE of the Criminal Appeal Act allowed the EPA initially to make a request in one form and, some many months later, to make a substantially different request in the form now submitted to the Court and, secondly, whether the EPA waived or otherwise abandoned the right to make a s 5AE request in those circumstances.

80. Grafil’s argument on this threshold question was without merit. First, the request made by the EPA (which is a statutory body representing the Crown: see s 5(2) of the Protection of the Environment Administration Act 1991 (NSW)) was made before the completion of the proceedings before the Land and Environment Court, as required by s 5AE(1). The proceedings were heard in February and March 2018. The trial judge gave judgment on 28 June 2018 making findings but no orders. On 26 July 2018, the EPA requested the trial judge to submit questions of law, in the form provided by the EPA, to this Court. As the trial judge had not made final orders, the EPA’s request was made “before the completion of the proceedings” as required by s 5AE(1).

81. Secondly, the form of the question first submitted by the EPA is not relevant to the competency of the EPA’s request under s 5AE(1). Unless a proposed question of law is “so obviously frivolous and baseless that its submission would be an abuse of process”, the trial judge is obliged on request by the Crown to submit a question of law: Ex parte McGavin; Re Berne (1946) 46 SR (NSW) 58 at 61 and Talay v R [2010] NSWCCA 308 at [11].

82. Thirdly, the obligation of the trial judge under s 5AE(1) to submit a question of law requested by the Crown is not dependent on the identification of any particular question of law, but only on the request. As was held in Environment Protection Authority v Land and Environment Court (NSW) (2004) 134 LGERA 140; [2004] NSWCA 50 at [54]:

“The making of a request by the claimant that one or more questions of law be submitted is what enlivens the obligation of the judge hearing the proceedings to submit any question of law to the Court of Criminal Appeal for determination. The section does not in terms require that the request identify, or to indicate the nature of, any particular question of law; nor should such a requirement be inferred.”

83. Fourthly, the fact that the form of the questions requested by the EPA to be submitted under s 5AE(1) changed, even if substantially, between the first request and final submitted questions, does not affect the competency of the questions finally submitted to this Court. The ordinary practice of submitted questions under s 5AE(1) entails delay in identifying, drafting and settling the appropriate questions to be submitted, including satisfying the trial judge that the requested questions do in fact pose a question of law for this Court’s determination: Environment Protection Authority v Land and Environment Court (NSW) at [55].

84. Fifthly, Grafil has not established that, by making the first request, the EPA waived or abandoned its right to make a different request under s 5AE(1). As a matter of law, s 5AE did not limit the EPA to making only one request. Whether the EPA, by making one request, abandoned or waived its right to make a different request is a question of fact. No findings of facts by the trial judge accompanied the submitted threshold question to allow this Court to determine the threshold question (as to the necessity for submitted questions of law to be accompanied by the trial judge’s determination of the facts, see Environment Protection Authority v Ampol Ltd (1993) 81 LGERA 433 at 437, 440).

85. Sixthly, any delay in settling the questions finally submitted under s 5AE(1) to this Court does not affect the competency of the questions. The only time limit imposed by s 5AE(1) is that the Crown request the trial judge to submit a question of law before the completion of proceedings. Provided that time limit is met, there is no bar to the question being submitted after any time, however long after the trial judge made findings or the Crown requested the trial judge to submit a question of law. The process for submitting a question of law under s 5AE(1), in this respect, stands in contrast to the process for a stated case under s 5BA(2) of the Criminal Appeal Act where there is a time limit of 28 days after the end of the appeal proceedings.

86. Finally, the EPA’s conduct does not amount to an abuse of process, for the reasons given by Adamson J.

87. The threshold question should be answered, as to the first part, “yes” and as to the second part, “no”.

Approach to consideration of the submitted questions

88. The submitted questions may be grouped under the following issues:

1. Was the material in the stockpiles “waste” as defined?

2. Was the activity of stockpiling the material the scheduled activity of “waste disposal (application to land)” so as to require a licence?

3. Was the activity of stockpiling the material the scheduled activity of “waste storage” so as to require a licence?

4. Was the activity of stockpiling the material exempted so as to be a non-scheduled activity for which a licence is not required?

5. What was the legal consequence of the presence of asbestos in the material in the stockpiles?

6. Was the activity of stockpiling the material without the lawful authority of a development consent?

7. Was a continuing offence proven?

8. Were the charged offences time barred?

89. I will deal with the submitted questions under these groups of issues.

Was the material in the stockpiles “waste” as defined?

90. The trial judge found that as the nature of the material in the stockpiles was a processed, recycled, re-used or recovered substance, it could only be waste within paragraph (d) of the definition of “waste” in the Dictionary to the POEO Act (at [273], [279], [280] and [305]), but because that material was not applied to the land, it did not fall within paragraph (d) (at [281], [284] and [300]). The material was therefore held by the trial judge not to be “waste” within the definition of waste (at [305]).

91. These findings give rise to submitted questions 2 and 5:

“2. Did I misconstrue the POEO Act definition of ‘waste’ in finding that, if material is ‘processed, recycled, re-used or recovered substance produced wholly or partly from waste’ within the meaning of paragraph (d) of the definition of ‘waste’, the material will be ‘waste’, as defined, only if it is ‘applied to the land in the circumstances prescribed by the regulation’, within the meaning of paragraph (d), and the other paragraphs of the definition of ‘waste’ will not apply to the material?

5. Was it open on the facts found by me to hold that the material comprising Stockpiles 1 and 2 on Lot 8 was not applied to land as referred to in cl 3B(1)(a) of the Waste Regulations?”

92. Question 2 addresses the trial judge’s construction of the definition of “waste” in the Dictionary to the POEO Act and in particular two aspects:

1. if the substance is a ‘processed, recycled, re-used or recovered substance produced wholly or partly from waste”, it cannot fall within any other paragraph of the definition (at [273], [280], [283] and [305]); and

2. such a substance must be applied to land before it can fall within paragraph (d) of the definition (at [281], [284] and [300]).

93. Question 5 relates to this second aspect of question 2 concerning application to the land. Clause 3B of the Waste Regulation prescribes the circumstances by which substances may be applied to the land for the purposes of paragraph (d) of the definition of “waste”. The trial judge found there was no application to the land in the circumstances prescribed by cl 3B(1)(a) (at [302], [303]).

94. I will address these questions in two parts: first, the trial judge’s construction of the definition of waste that a substance of the kind described in paragraph (d) cannot fall within any other paragraph of the definition of waste and, secondly, the trial judge’s construction of the requirement in paragraph (d) that the substance be applied to the land.

The construction that paragraph (d) excludes the other paragraphs of the definition of waste

95. The EPA submitted that the trial judge misconstrued the definition of waste in the Dictionary to the POEO Act in multiple ways.

96. First, “waste” is defined inclusively by reference to paragraphs (a)-(e) of the definition. Waste “includes” a substance described in paragraphs (a) to (e) but is not limited to those substances.

97. Secondly, each of those paragraphs is formulated by reference to “any substance” meeting a particular description. The description of each category of substance is generally broad but not unqualified. Some descriptions of substances are more qualified than others, such as to require a causal effect (paragraph (a)), a particular application or use (paragraph (d)) or a specific regulatory prescription (paragraph (e)).

98. Thirdly, each of the paragraphs is qualified by the concluding sentence. A substance is not precluded from being waste within any of the paragraphs merely because it is or may be processed, recycled, re-used or recovered. This sentence reveals a legislative intention that a substance that is or may be processed, recycled, re-used or recovered can be waste for the purposes of paragraphs (a) to (e) in the definition, subject to satisfying the respective terms of the paragraphs.

99. Fourthly, the definition does not stipulate any hierarchy in terms of paragraphs (a) to (e) or that any of the paragraphs operates to the exclusion of any one or more of the other paragraphs. The definition uses the word “or” between each or the paragraphs. This has a dispersive effect so that a substance can be waste if it falls within any one or more of the paragraphs: Electricity Trust of South Australia v Krone (Australia) Technique Pty Ltd (1994) 51 FCR 540 at 547. The Land and Environment Court has proceeded, in other cases, on the basis that a substance can satisfy more than one paragraph of the definition of waste: Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 5) [2013] NSWLEC 68 at [208]-[210] and Environment Protection Authority v Foxman Environmental Development Services Pty Ltd [2015] NSWLEC 105 at [184]-[207].

100. Fifthly, paragraph (d) and the amendment to the concluding sentence to the definition of waste were inserted by the Protection of the Environment Operations Amendment Act 2005, Sch 1 Item [157]. The amendment had the effect of expanding or clarifying, but not restricting, the scope of the definition: Environment Protection Authority v Terrace Earthmoving Pty Ltd (2013) 84 NSWLR 679; [2013] NSWCCA 180 at [39]. There is no basis for construing the new definition of waste as being more restrictive than the earlier definition: Shannongrove Pty Ltd v Environment Protection Authority (2013) 84 NSWLR 668; [2013] NSWCCA 179 at [41].

101. Sixthly, the EPA submitted that the obiter comments of Basten ACJ in Environment Protection Authority v Terrace Earthmoving Pty Ltd at [42]-[44], relied on by the trial judge, do not assist in construing the new definition of waste in the Dictionary to the POEO Act. That case concerned the offence of unlawfully transporting waste under s 143 of the POEO Act. At the time of commission of the first offence, s 143 contained its own specific definition of waste (in s 143(4)), which was different to the definition of waste in the Dictionary to the POEO Act. By the time of the commission of the second offence, that specific definition had been removed from s 143(4) and the definition of waste in the Dictionary to the POEO Act had been amended (though it was still different to the current form of definition). In [42]-[44], Basten ACJ was commenting on the changes effected by the legislative amendments to the offence provision of s 143. The legislative amendments included, first, omitting the specific definition of waste in the former s 143(4) so that the definition of waste in the Dictionary to the POEO Act would apply; secondly, inserting paragraph (d) in the definition of waste in the Dictionary; thirdly, inserting the words “is or” in the concluding sentence of the definition of waste in the Dictionary; and fourthly, by omitting the specific definition of waste in the former s 143(4) (which included a second sentence that “a substance is not precluded from being waste merely because it may be reprocessed, re-used or recycled”) and amending the definition of waste in the Dictionary, including by amending the concluding sentence (to be “a substance is not precluded from being waste for the purposes of this Act merely because it is or may be processed, re-used or recycled”), the meaning and effect of the concluding sentence of the definition of waste was changed.

102. Basten ACJ considered that the addition of paragraph (d) to the definition of waste in the Dictionary and the insertion of the word “is” in the concluding sentence of that definition:

“gives force to the conclusion that where waste has been processed, recycled, re-used or recovered, it will cease to be waste, except in prescribed circumstances. That is consistent with the preferred reading of the second sentence of s 143(4), namely that the capacity of a substance to be reprocessed etc is not relevant but, by inference, the fact of reprocessing etc is significant and generally terminates the characterisation of the substance as waste.”

103. The EPA noted that Environment Protection Authority v Terrace Earthmoving Pty Ltd, as well as Shannongrove Pty Ltd v Environment Protection Authority, were not concerned with paragraph (d) of the definition of waste in the Dictionary to the POEO Act. Accordingly, Basten ACJ’s comments were obiter. Basten ACJ’s comments were also directed to construing the later repealed second sentence of s 143(4), which was relevant to the first offence in that case.

104. The concluding sentence of the definition of waste in the Dictionary to the POEO Act has been amended again since the decision in Environment Protection Authority v Terrace Earthmoving Pty Ltd to add reference to a substance that is recovered and to reorder the words to be “processed, recycled, re-used or recovered”.

356. Secondly, the trial judge erred in law by finding, without evidentiary foundation, that the material in the stockpiles on Lot 8 was to be used in the construction of the access road to Lot 218 that was approved by the original Pt 3A approval. As the EPA submitted, the evidence, and indeed one of the trial judge’s findings (at [434]), was that the material in the stockpiles on Lot 8 during the charge period was intended to be used, and later was in fact used, to construct the modified access road approved by the first modification of the Pt 3A approval on 30 September 2013, after the end of the charge period.

357. There was no evidence to support the trial judge’s finding that the material stockpiled on Lot 8 in the charge period was to be used to construct the originally approved access road to Lot 218. The upgrading of Lavis Lane, which was part of the originally approved access road, was required by the Pt 3A approval to be undertaken within six months of commencement of quarrying operations on Lot 218. The Pt 3A approval was granted on 20 September 2009. An environment protection licence authorising sand extraction was granted on 30 November 2009. Quarrying operations began sometime thereafter. The upgrading of Lavis Lane, as part of constructing the originally approved access road, would have needed to have been undertaken within six months of commencing quarrying operations on Lot 218. This would have been some two and a half years before the start of the charge period. There was no other route by which sand extracted from Lot 218 could have been transported to market than along the originally approved access route.

358. The materials received on Lot 8 during the charge period could not be used to construct an access road to Lot 218 that had already been constructed some two and a half years earlier.

359. Thirdly, the use of Lot 8 by stockpiling materials in the charge period could not be ancillary to a use of other land for the construction of the modified access road that had not been approved at the relevant time. A use of one parcel of land cannot be ancillary to a use of other parcels of land that has yet to be approved. Only when the Pt 3A approval was modified to approve the construction of an access road across the other land could the use of Lot 8 become ancillary to the use of that other land for road construction. Such modification of the Pt 3A approval did not occur until months after the charge period.

360. In this respect also, the trial judge erred in holding in [566] that the fact that “the road route changed after the charge period is immaterial”.

361. Question 15 should be answered “yes”.

Was a continuing offence proved?

379. The trial judge considered that, in order to establish a continuing offence, the EPA had “to establish that non-exempt waste was being stored and/or disposed of by Grafil as a continuing activity in that period” (at [533]). The trial judge found that the EPA had not done so for two reasons.

380. First, the trial judge found that “the material deposited was not waste because of the operation of the CPRF and ENM exemptions” (at [533]). Second, the trial judge found that “there is no evidence of deposition of non-exempt waste  on any day. The EPA cannot establish any regularity or continuing course of conduct with respect to the delivery to Lot 8 of material that did not comply with the resource recovery exemptions.” (at [534]). Hence, the trial judge concluded: “As the evidence does not disclose a continuing course of conduct extending over the charge period, the charged offence cannot properly be categorised as a continuing offence.” (at [535]).

381. These findings gave rise to submitted question 13:

“13. Was it open on the facts found by me, in particular those at [528] – [535] of my judgment, to hold that the Appellant had not established a continuing offence?”

382. The EPA submitted that the trial judge asked the wrong question in determining whether the EPA had proved a continuing offence. The trial judge wrongly focused, in both reasons, on whether the EPA had proved that “non-exempt waste” was deposited. The EPA submitted that this reveals an incorrect understanding of the operation of the exemptions granted under cll 51 and 51A of the Waste Regulation.

383. Both the “continuous process” recovered fines exemption and the excavated natural material exemption operate, firstly, to exempt the responsible person of a consumer from the licensing provisions in s 48 of the POEO Act in respect of cll 39 and 42 to Sch 1 of the POEO Act in relation to activities involving the relevant waste, and, secondly, to make the activity a non-scheduled activity for the purposes of the POEO Act. The exemptions do not operate to exempt the relevant waste. The relevant waste remains waste regardless of whether the exemptions apply or do not apply; it does not become “exempt waste”.

384. Hence, the trial judge was in error in drawing the distinction between “exempt waste”, being waste to which the exemptions apply, and “non-exempt waste”, being waste to which the exemptions do not apply. That distinction has no basis in the language of the exemptions.

385. The EPA submitted that by introducing a concept of “exempt waste” into the inquiry as to whether a continuing offence had been established, the trial judge wrongly focused on a matter that was outside the elements of an offence against s 144(1) of the POEO Act.

386. Grafil sought to support the trial judge’s reference to “non-exempt waste” or “waste that did not comply with the resource recovery exemption” on the basis that the trial judge was merely using a short hand expression to convey that the activity of stockpiling of the relevant waste on the site was not exempt under the exemptions and required a licence. The trial judge’s finding that the EPA had not proven that there was continuing deposition or storage of non-exempt waste should be read as a finding that the EPA had not proven that there was deposition of storage of waste which required a licence to be deposited or stored at the site with any regularity or as a continuing course of conduct.

387. Grafil submitted that for a continuing offence against s 144(1) to be proved, what was required to be established was not continuous deposition of waste that was lawfully able to be deposited pursuant to the exemptions, but waste that was being deposited absent of lawful authority (such deposition would require a licence as it did not come within the exemptions).

388. I find that the trial judge did misdirect herself in determining whether the EPA had proven a continuing offence by wrongly focusing on whether the EPA had proven deposition of “non-exempt waste”. The trial judge wrongly understood the effect of an exemption applying was either to cause the material deposited not to be “waste” or to cause it to be “exempt”. Conversely, if the exemption did not apply, the material deposited was “non-exempt waste”.

389. The trial judge’s choice of language in her findings was deliberate, repeated and consistent, and revealed the trial judge’s misunderstanding of the operation and effect of the exemptions. In [533], the trial judge found that “the material deposited was not waste because of the operation of the CPRF and ENM exemptions” (emphasis added). In [534], the trial judge found that proof that the material deposited “was waste” was required, but that the EPA had not proven that a continuing offence was taking place “as there is no evidence of deposition of non-exempt waste on any day” (emphasis added). The trial judge also found that the EPA had not established “any regularity or continuing course of conduct with respect to the delivery to Lot 8 of material that did not comply with the resource recovery exemptions” (emphasis added).

390. The trial judge’s understanding of the operation and effect of the exemptions is incorrect. The exemptions do not operate to make the material that has been deposited not “waste” for the purposes of the POEO Act or the Waste Regulation. Material that meets the description of the “relevant waste” in the exemption is still “waste” for the purposes of the POEO Act and the Waste Regulation, regardless of whether the exemption applies. The exemptions also do not operate to make the relevant waste “exempt waste”, if the exemption applies, but “non-exempt waste” if the exemption does not apply. Rather, the exemptions operate to exempt the responsible person from the licensing provisions in s 48 in respect of the relevant clauses of Sch 1 to the POEO Act in relation to activities involving the relevant waste, so that that activity is taken to be a non-scheduled activity for the purposes of the POEO Act.

391. The trial judge therefore asked the wrong question in seeking to identify whether there was “evidence of deposition of non-exempt waste on any day” or “regularity or continuing course of conduct with respect to the delivery to Lot 8 of material that did not comply with the resource recovery exemptions”.

392. The trial judge also erred in failing to address the question of whether there was a continuing offence by reason of the storage of materials in the stockpiles on Lot 8. The trial judge had identified in [533] that the elements of the s 144(1) charge against Grafil “require proof of storage and/or disposal of waste by application to land” during the charge period and that as a continuing offence, the EPA is required to establish that waste was “being stored and/or disposed of by Grafil as a continuing activity in that period.” The trial judge was correct to do so. The EPA had particularised the manner of breach of the charged offence as using the premises as a waste facility “for storing and/or disposing of waste on the land”.

393. However, when the trial judge came to determine whether the prosecutor had proven a continuing offence, the trial judge only dealt with the manner of breach of disposal of waste, although as I have found she misdirected herself in doing so. The trial judge did not address the manner of breach of storing waste on the land. This was a constructive failure to exercise jurisdiction and was an error of law.

394. Question 13 should be answered “no”.

Were the charged offences time barred?

395. The trial judge found that the charged offences against s 144(1) of the POEO Act were time barred, as the prosecution was not commenced within the three year limitation period pursuant to s 216(1)(a) of the POEO Act (at [548] and [549]).

396. The trial judge noted that the charge period ended on 15 May 2013. As the summons was filed on 11 May 2016, the limitation period was, going back three years, 11 May 2013. “If the offence charged did not continue until at least 11 May 2013, then the charge was not brought within the three year limitation period and must be dismissed” (at [536]).

397. The trial judge found that “to avoid the time bar the EPA needs to show beyond a reasonable doubt that non-exempt material was received on either of 11, 12, 13 or 14 May 2015” (at [546]). The trial judge found, however, that the EPA “cannot on the evidence before the Court demonstrate that particular loads of material delivered on particular days was non-exempt” (at [546]).

398. The trial judge found at [547] that:

“As this cannot be demonstrated, the EPA has not negatived the reasonable possibility that the charged offence was complete prior to 11 May 2013, with no deposition or disposal of non-exempt material occurring after that date. The continued presence of Stockpiles 1 and 2 on Lot 8 does not entail that the charged offence continues without end after it is completed by the last act of tipping or depositing non-exempt waste.”

399. The trial judge elaborated on her last statement in [548]:

“To reason, in effect, that the charged offence continues without end would be to commit the very error identified by the CCA in the EPA’s submissions in relation to the water pollution offence in Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79 (EPA v Bathurst) at 86 (Hunt CJ at CL). Just as the offence of water pollution is completed when the water is polluted and does not continue ad infinitum while that polluted state persists, and just as the offence of murder is complete once the victim dies and does not continue forever because the deceased continued to be dead, this s 144 offence was complete (if committed at all) when the last act of tipping occurred. There is no basis for the Court concluding on the evidence that this was on or after 11 May 2013.”

400. These findings give rise to submitted question 14:

“14. Was it open on the facts found by me in particular those at [536] – [549] of my judgment, to hold that the charged offences were time barred pursuant to s. 216(1)(a) of the POEO Act?”

401. The EPA submitted that the trial judge misdirected herself in three respects. First, the trial judge misdirected herself by focusing on the concept of “non-exempt waste” and requiring the EPA to prove that particular loads of material delivered on particular days was “non-exempt waste”. This is the same error made by the trial judge in determining whether the EPA had proved a continuing offence.

402. Secondly, the EPA submitted that the trial judge misdirected herself by concluding that the EPA needed to show beyond a reasonable doubt that non-exempt waste “was received” on 11, 12, 13 or 14 May 2013 (at [546]), when the offence charged could be established by proof of continuing waste storage on the land during this period.

403. Thirdly, the EPA submitted that the trial judge misapplied Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79 insofar as the trial judge found that “this s 144 offence was complete (if committed at all) when the last act of tipping occurred”. Given the actus reus of the present s 144(1) offence is use of the land as a waste facility for storing and or disposal of waste, the offence continued, at least insofar as concerns waste storage, for as long as the waste was stored on the land, which included the entirety of the charge period.

404. Grafil reiterated its submission that the trial judge did not err by referring to non-exempt waste. The trial judge found that there was no evidence of deposition of non-exempt waste on 11, 12, 13 or 14 May 2013 (at [549]).

405. Grafil submitted that the trial judge should be taken to have impliedly found that there was not storage of non-exempt waste over those days. Grafil submitted that “as no deposition of waste requiring an EPL (that is, non-exempt waste, being waste within the meaning of limb (d) of the statutory definition and which does not satisfy the exemptions) was proved to have occurred on any day during the charge period, neither was there any storage of any such non-exempt waste over those days”.

406. Grafil submitted that, as the trial judge explained in [548], even if some non-exempt waste had been deposited prior to 11 May 2013, with no deposition on or after that date, the s 144(1) offence did not continue after it was complete with the last act of tipping or depositing non-exempt waste. It was not an offence that continued without end even though storage and/or disposal is what was alleged.

407. I find that the trial judge misdirected herself in determining whether the charged offences were time barred. First, the trial judge misdirected herself again by wrongly focusing on “non-exempt waste”. The trial judge asked herself the wrong question by enquiring, in [546], whether “non-exempt material” was received on 11, 12, 13 or 14 May 2013 or whether “particular loads of material delivered on particular days was non-exempt”, in [547], whether there was “no deposition or disposal of non-exempt material occurring after that date [11 May 2013]” and in [549], whether there was “no evidence of deposition of non-compliant material on 11, 12, 13 or 14 May 2013”. Each of these inquiries was misdirected for the reasons I have given in answer to question 13.

408. Secondly, the trial judge misdirected herself in failing to address the question of whether the storage of waste in the stockpiles on Lot 8 continued over the days of 11, 12, 13 and 14 May 2013. Again, storage of waste on the land was one of the particularised manners of breach that needed to be addressed, but the trial judge did not do so. The nearest the trial judge came to dealing with the continuing storage of waste on the land was when she found in [547] that “The continued presence of Stockpiles 1 and 2 on Lot 8 does not entail that the charged offence continues without end after it is completed by the last act of tipping or depositing non-exempt waste”. But this finding is not only affected by the incorrect focus on “non-exempt waste” but also by the incorrect focus on the last act of disposing of waste and not the ongoing storage of waste that has already been disposed of on Lot 8.

409. Question 14 should be answered “no”.

Answers to questions and order

410. I propose that the Court answers the submitted questions and makes the order as follows:

1. The Court answers the submitted questions as follows:

The threshold question: Does s 5AE allow, or is it competent for, the appellant to have first made a request in the form MFI 1 attached as Annexure “D” on 26 July 2018, and then some months later to make a substantially different request in the form now submitted to the Court?

Yes.

Or has the appellant waived or otherwise abandoned the right to make a s 5AE request in those circumstances?

No.

Question 1: In construing the CPRF and ENM Exemptions and the conditions contained therein, did I, in my judgment at [383], [414]-[417], [423]-[425], [436]-[438] and [440]-[442], impermissibly rely on giving the Exemptions a ‘practical’ operation and/or effect at the expense of the text including the Notes of the Exemptions?

Yes.

Question 2: Did I misconstrue the POEO Act definition of “waste” in finding that, if material is “processed, recycled, re-used or recovered substance produced wholly or partly from waste” within the meaning of paragraph (d) of the definition of “waste”, the material will be “waste”, as defined, only if it is “applied to the land in the circumstances prescribed by the regulation”, within the meaning of paragraph (d), and the other paragraphs of the definition of “waste” will not apply to the material?

Yes.

Question 3: Was it open on the facts found by me to hold that:(a) The words “waste disposal by application to land” in the chapeau of cl 39(1) of Schedule 1 to the POEO Act must first be found to apply before sub-cll (a), (b) and (c) can be considered;

(b) Subclauses (a), (b) and (c) of cl 39(1) of Schedule 1 to the POEO Act do not qualify the words “waste disposal by application to land” in the chapeau of cl 39(1) of Schedule 1 to the POEO Act; and

(c) Application to land requires more than (a material’s) placement on land temporarily before its application to land for the intended purpose?

No to each part of the question.

Question 4: Was it open on the facts found by me to hold that the material comprising Stockpile 1 and Stockpile 2 on Lot 8 was not applied to land during the charge period within the meaning of cl 39(1) of Schedule 1 to the POEO Act, by reason of it being temporarily stockpiled pending its use as road base?

No.

Question 5: Was it open on the facts found by me to hold that the material comprising Stockpiles 1 and 2 on Lot 8 was not applied to land as referred to in cl 3B(1)(a) of the Waste Regulations?

No.

Question 6: Was it open on the facts found by me to hold that a distinction should be made between the temporary stockpiling of material for the purpose of applying it to land for road construction and the separate activity of storage of waste (under cl 42 of Schedule 1 of the POEO Act)?

No.

Question 7: Was it open on the facts found by me to hold the evidence did not establish the Stockpiles 1 and 2 were being used for storage pending the transfer of material for the purposes of cl 42 of Schedule 1 of the POEO Act?

No.

Question 8: As part of its onus of proving that an EPL was required to be held by Grafil for the alleged use of Lot 8 for disposal or storage of waste, was the Prosecutor required to prove that either of the resource recovery exemptions (the CPRF and ENM exemptions) did not obviate the need to obtain an EPL?

No.

Question 9: Was it open to me to hold that:

(a) Clause 42 of the Waste Regulations operates entirely separately from the resource recovery exemption provisions made in cll 51 and 51A of the Waste Regulations; and

(b) The presence of asbestos is irrelevant to whether the CPRF Exemption applies and consequently to the charge if the exemption otherwise applies?

Unnecessary to answer.

Question 10: Was it open to me to hold whether a stockpile of material can be considered “asbestos waste” (as defined by cl 50 (1) of Schedule 1 of the POEO Act to mean ‘any waste that contains asbestos’) is a matter of fact and degree and must depend on the nature of the waste and its volume?

No.

Question 11: Was it open on the facts found by me to hold that the First Respondent’s failure to comply with Condition 9.1 of the CPRF Exemption and Condition 9.2 of the ENM Exemption did not, as a matter of law, automatically preclude it from relying on the exemptions?

No.

Question 12: Was it open on the facts found by me to hold that the First Respondent was a ‘Consumer’ for the purpose of the CPRF Exemption and the ENM Exemption?

Unnecessary to answer.

Question 13: Was it open on the facts found by me, in particular those at [528] – [535] of my judgment, to hold that the Appellant had not established a continuing offence?

No.

Question 14: Was it open on the facts found by me in particular those at [536] – [549] of my judgment, to hold that the charged offences were time barred pursuant to s. 216(1)(a) of the POEO Act?

No.

Question 15: Did I erroneously conclude that the temporary stockpiling on Lot 8 was ancillary or subordinate to the development authorised by either or both of the 1977 consent and the original Pt 3A approval given that the access road actually built to Lot 218 after the charge period in accordance with the Modification of the Part 3A approval (see [35]) was in a different location to the location of the access road in the Pt 3A approval in force during the charge period?

Yes.

2. The Land and Environment Court is to redetermine the proceedings in accordance with the answers given to the submitted questions by this Court.

411. DAVIES J: I agree with Preston CJ of LEC.

412. ADAMSON J: I have had the benefit of reading the reasons of Preston CJ of LEC in draft. I agree with the answers given by his Honour to the questions posed, including the threshold question, for the reasons given by his Honour. The reasons for my agreement that the threshold question should be answered, as to the first part, “yes” and as to the second part, “no” are as follows.

413. The threshold question depends on the meaning of s 5AE of the Criminal Appeal Act 2012 (NSW), which relevantly provides:

“5AE   Point of law stated during summary proceedings

(1)  At any time before the completion of proceedings before … the Land and Environment Court in its summary jurisdiction … the judge hearing the proceedings may, or if requested by the Crown must, submit any question of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination.

(2)  The Court of Criminal Appeal may make any such order or give any such direction to the court concerned as it thinks fit.”

414. It is plain from the wording of s 5AE that a request by the Crown, before the completion of summary proceedings in the Land and Environment Court, that a question of law be submitted to this Court gives rise to an obligation on the judge to submit any such question to this Court.

415. The appellant is a statutory body representing the Crown: s 5(2) of the Protection of the Environment Administration Act 1991 (NSW) (the POEA Act).

416. The proceedings were heard in February and March 2018. On 28 June 2018 the primary judge published reasons, which included findings, but no orders were made, then or subsequently. On 26 July 2018 the appellant, who was relevantly the Crown, requested that the primary judge submit certain questions to this Court. These questions were subsequently amended, after submissions were made to her Honour by both parties. The primary judge submitted questions of law to this Court in a document dated 6 February 2019 which was filed on 18 February 2019. This document differed in several respects from the draft proposed by the appellant on 26 July 2018.

417. The obligation triggered by s 5AE is not dependent on the identification of the particular question of law: Environment Protection Authority v Land and Environment Court (2004) 134 LGERA 140 at [54] (Tobias JA, Meagher and Santow JJA agreeing). Before the question or questions can be submitted to this Court, the identification of the questions will be required, generally following consultation with the parties. As part of this process, the judge will need to be satisfied that each question submitted is a question of law: Environment Protection Authority v Land and Environment Court at [55].

418. As no orders were made, the proceedings in the Land and Environment Court have not been completed. Accordingly it was open to the appellant to request that her Honour submit questions of law to this Court and, once a request had been made, her Honour was obliged, after having satisfied herself that each question posed a question of law, to submit such questions.

419. Unlike s 5B(2) and s 5BA(2) of the Criminal Appeal Act, which provide for a time limit of “28 days after the end of the appeal proceedings, or within such longer period as the Court of Criminal Appeal may allow”, no time limit is specified in s 5AE. Accordingly, there is no warrant for this Court to import a statutory gloss on s 5AE which would qualify the plain wording of the section. All that is required is that the judge submit the question of law to this Court “at any time before the completion of the proceedings”. The respondent’s submission that the Crown ought, in effect, be held to its first proposal, is at odds with the statutory language and inconsistent with what this Court said at [54]-[55] in Environment Protection Authority v Land and Environment Court. The statutory wording leaves no room for waiver or estoppel such as would confine the Crown to the first draft or iteration of the questions the subject of the request.

420. The respondents further submitted that the Crown was endeavouring to use the procedure in s 5AE of the Criminal Appeal Act as an “all grounds appeal” against an acquittal and that this amounted to an abuse of process. It relied on what this Court said in Environment Protection Authority v Land and Environment Court at [35]-[36], in which reference was made to s 5B, the stated case procedure.

421. I reject these submissions. First, although the primary judge made findings that the respondents were not guilty, they were not acquitted since no orders were made. As no orders were made, no appeal lies. Had an order for acquittal been made, there would have been no right of appeal in any event. Secondly, the jurisdiction invoked by the appellant is that conferred by s 5AE. There is a fundamental distinction between, on the one hand, the procedure under s 5AE as to content (questions of law requested by the Crown are to be submitted and answered) and timing (before the completion of proceedings) and, on the other, an appeal, which would lie only against conviction or penalty and could be brought only after orders had been made.

422. The mechanism provided for under s 5AE is that questions be asked and answered. The evident intent of s 5AE is for this Court to correct errors of law before orders, which would have the effect of completing the proceedings, are made by the judge. In this way, the legislature has enacted a procedure which is intended to have a prophylactic effect. There is nothing improper about the use of the s 5AE procedure in a case such as the present. It was used in similar circumstances in Environment Protection Authority v Terrace Earthmoving (2013) 84 NSWLR 679; [2013] NSWCCA 180. In that case, the primary judge concluded, in lengthy reasons, that he was not satisfied beyond reasonable doubt that material was “waste” within the meaning of s 143 of the POEA Act (which criminalises transportation of waste). Before orders were made to dismiss the charges, the Environment Protection Authority requested the primary judge to submit certain questions to this Court.

423. The procedure in s 5AE can be used, as in the present case, to prevent a finding of not guilty from resulting in an order dismissing the charges in circumstances where the finding rests on a basis which is not legally correct. It is analogous to s 5F of the Criminal Appeal Act, which entitles the Director of Public Prosecutions to appeal to this Court against an interlocutory judgment or order given or made in the proceedings, or against a ruling on admissibility if the ruling eliminates or substantially weakens the prosecution case. Neither of these provisions undermines the fundamental principle that there is no right of appeal against an acquittal. Both serve to ensure that neither an order dismissing charges against a defendant (at the conclusion of summary proceedings) nor an order for acquittal of an accused (following a trial) is made until the prosecutor has had an opportunity to have this Court determine that the legal foundation for the putative order is correct.

**********

Amendments

05 August 2019 - Correction to legal representation.

29 May 2020 - Amendments made to correct the reference to Protection of the Environment Administration Act 1991 in [80], clarification of condition 8.7 in [239] and reference to evidence of witnesses in [361].

Decision last updated: 29 May 2020