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Environment Protection Authority v Hardt

Environment Protection Authority v Hardt

Case [2006] NSWLEC 438 19 July 2006

Unlawful Use of Land

Waste Management

Licensing Requirements

Development Consent

Environmental Law

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Reported Decision: (2006) 148 LGERA 61

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Hardt [2006] NSWLEC 438

PARTIES:
PROSECUTOR
Environment Protection Authority
DEFENDANT
Bernard Hardt

FILE NUMBER(S): 50066 of 2004

CORAM: Preston CJ

KEY ISSUES:
Prosecution :- offence - use of land as waste facility without lawful authority - defendant intentionally allowed waste to be disposed of on his land - large volume of waste deposited to fill gully to construct access road - whether land cannot lawfully be used as a waste facility - meaning of "cannot lawfully be used" - not restricted to absence of lawful authority under Protection of the Environment Operations Act 1997 (NSW) but can extend to other Acts - whether use of land a "landfill or application site" and hence a waste facility - use of land held to be a waste facility requiring a licence under Protection of the Environment Operations Act 1997 but no licence obtained - use of land also unlawful under Environmental Planning and Assessment Act 1979 - whether defendant permitted land to be used as a waste facility - meaning of "permits" - does not require intention that purpose of use is as waste facility - defendant permitted use of land as waste facility
Words and Phrases:- "cannot lawfully be used" - "permits" - Protection of the Environment Operations Act 1997 (NSW), s 144(1)

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 (NSW) s 4(1), s 76B
Interpretation Act 1987 (NSW) s 33
Protection of the Environment Operations Act 1997 (NSW) s 3, s 5(1), s 48, s 48(2), s 114(2), s 143, s 144, s 144(1), s 144(2), Pt 1 Sch 1 "waste facilities" para 1(g), Div 2 Pt 3 Sch 1
Waste Minimisation and Management Act 1995 (NSW) s 64(1)

CASES CITED: Alphacell Ltd v Woodward [1972] AC 824;
Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404;
Blacktown City Council v Pace (2002) 121 LGERA 432;
CB Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270;
De Gruchy v The Queen (2002) 211 CLR 85;
Environment Protection Authority v Fletcher (2001) 114 LGERA 187;
Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1;
Environment Protection Authority v Nechakoski (2002) 120 LGERA 426;
Environment Protection Authority v Robinson [2002] NSWLEC 629 (12 November 2002);
Environment Protection Authority v Pannowitz; Environment Protection Authority v Steepleton Pty Ltd [2005] NSWLEC 175 (22 April 2005);
Environment Protection Authority v Sorcevski [2002] NSWLEC 115 (28 May 2002);
Ex parte Johnson; Re MacMillan (1946) 47 SR (NSW) 16;
Gilmour v Director of Public Prosecutions (Cth) (1995) 43 NSWLR 243;
He Kaw Teh v The Queen (1985) 157 CLR 523;
Metal Manufacturers Ltd v Lewis (1988) 13 NSWLR 315;
Northern Territory Planning Authority v Murray Meats (NT) Pty Ltd (1983) 51 LGRA 158;
Owen v Willtara Construction Pty Ltd (1998) 103 LGERA 137;
Project Blue Sky Inc v Australian Broadcasting Authority (1998)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Environment Protection Authority v Hardt

Details

AGLC: Environment Protection Authority v Hardt [2006] NSWLEC 438
Case: [2006] NSWLEC 438
Decision Date: 19/07/2006

CaseChat Overview and Summary

Environment Protection Authority v Hardt was a trial in the Land and Environment Court of New South Wales. The case involved a prosecution of Bernard Hardt for using his land as a waste facility without lawful authority, in contravention of s 144(1) of the Protection of the Environment Operations Act 1997 (NSW). The defendant, who owned land at Wyee on the Central Coast of New South Wales, had constructed an access road to his land but had to construct a new road when his neighbour created difficulties with the original arrangement. To construct the new road, Hardt permitted waste to be deposited on his land. A large volume of waste was deposited to fill a gully to construct access road. The trial was to determine whether Hardt was guilty of the offence as charged. The court found that the land could not lawfully be used as a waste facility because it required a licence under the Protection of the Environment Operations Act 1997 but no licence had been obtained. The court also found that the land could not lawfully be used as a waste facility under the Environmental Planning and Assessment Act 1979. The court held that the defendant permitted the use of his land as a waste facility because he intentionally allowed waste to be deposited on the land. The court rejected the defence of honest and reasonable mistake, holding that Hardt's belief that he was allowing the construction of a road was irrelevant to the offence. The court found Hardt guilty of the offence as charged and the matter was stood over to a date to be fixed for submissions on penalty.

Orders