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

The defendants, Grafil Pty Ltd and Mackenzie, appealed against convictions in the Land and Environment Court for using land as a waste facility without lawful authority. The Environment Protection Authority (EPA) prosecuted the defendants for allegedly operating a waste facility on their land without the necessary approvals. The central legal issues revolved around the interpretation of the term "waste" and related statutory definitions, the applicability of statutory exemptions, and the onus of proof. The court was tasked with determining whether the prosecutor could make a second request under section 5AE of the Criminal Appeal Act in a substantially different form to the first request, and whether the defendants had lawful authority to operate the waste facility. The court also needed to clarify whether the defendants' activities constituted scheduled activities under the relevant regulations and whether the waste they stockpiled met the definition of "waste."

The court meticulously examined the statutory definitions and the specific context of the defendants' activities. It found that the prosecutor was indeed permitted to make a second request under section 5AE, provided it was substantially different from the first. The court then addressed the definition of "waste" and concluded that the materials stockpiled by the defendants met this definition. It further held that the defendants' activities constituted the scheduled activity of waste disposal by application to land and waste storage. The court also examined the meaning of "asbestos waste" and whether the waste contained asbestos, ultimately finding that the defendants had not borne the onus of proving that the statutory exemptions applied to their activities. The court held that the defendants did not have lawful authority to operate the waste facility, as they had not obtained the necessary development consent or other approvals. Additionally, the court found that the offences were not time-barred.

Based on these findings, the court established errors of law and remitted the proceedings to the Land and Environment Court for a fresh determination in light of the answers provided to the submitted questions. The court's decision clarified the legal framework governing waste facilities and the specific obligations and exemptions applicable to the defendants.