Environment Protection Authority v HTT Huntley Heritage Pty Ltd - [2003] NSWLEC 76

Reported Decision: 125 LGERA 332

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v HTT Huntley Heritage Pty Ltd [2003] NSWLEC 76

PARTIES:
PROSECUTOR
Environment Protection Authority
DEFENDANT
HTT Huntley Heritage Pty Ltd

FILE NUMBER(S): 50066 of 2002

CORAM: Pearlman J

KEY ISSUES: Environmental Offences :- breach of licence conditions - definition of waste - continuing offence - scheduled activity

LEGISLATION CITED: Protection of the Environment Operations (General) Regulation 1998 sch 1
Protection of the Environment Operations Act 1997 s 55, s 64

CASES CITED: Auburn Municipal Council v Szabo and Anor (1971) 67 LGRA 427;
Cook v Cook (1923) 33 CLR 369;
DPP v Merriman (1973) AC 584;
Environment Protection Authority v CSR Ltd t/a CSR Woodpanels (2001) 114 LGERA 217;
Ex parte Wakefield (1927) 27 SR (NSW) 261;
J Robins and Sons Ltd v Maloney (No 2) (1935) AR (NSW) 155;
John Clyde Owen v Willtara Construction Pty Ltd (Bignold J, NSWLEC, 3 September 1998, unreported)

DATES OF HEARING: 06/02/2003; 07/02/2003

DATE OF JUDGMENT:
04/11/2003

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr T G Howard (Barrister)
SOLICITORS
Environment Protection Authority
DEFENDANT
Mr T S Hale SC
SOLICITORS
Minter Ellison

JUDGMENT:

50066 of 2002

Pearlman J
11 April 2003

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

HTT HUNTLEY HERITAGE PTY LTD

Defendant

Judgment

Introduction

1 These proceedings concern an allegation of a contravention of a licence condition.

2 The defendant, HTT Huntley Heritage Pty Ltd, is charged that, from 15 March 2001 and continuing until 29 August 2001 (“the charge period”), it committed an offence in that it contravened a condition of an environment protection licence relating to the Huntley Colliery at Avondale (“the premises”). Contravention of a condition of a licence is constituted as an offence by virtue of s 64(1) of the Protection of the Environment Operations Act 1997 (“the POEO Act”).

3 The defendant has pleaded not guilty to the charge.

Background

4 The defendant has been engaged in the rehabilitation of the site of the Huntley Colliery, which ceased to be an active coal mine in 1989. A Mine Rehabilitation Plan (“the MRP”) was approved by the Minister for Mineral Resources on 17 March 1998.

5 The defendant holds environment protection licence No 10997 issued under s 55 of the POEO Act. The licence is subject to limit conditions, one of which, numbered L5.3, provides as follows:

L5.3 Any waste material accepted at the premises must be:

(a) virgin excavated natural material (VENM) as defined in Part 3, Waste - interpretive provisions, of the Protection of the Environment Operations Act 1997 or
(b) non-hazardous bulk agricultural or crop waste that is not putrescible.
Note: If waste is received at the premises then the premises will be a controlled waste facility under Schedule 1, Part 1, Waste facilities 1(f) of the Protection of the Environment Operations Act 1997 and payment of the Section 88 levy will be required. However, by restricting the wastes received to VENM and non-hazardous bulk agricultural or crop waste…

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.

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Details

Case: [2003] NSWLEC 76
Decision Date: 04/11/2003

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the Environment Protection Authority (EPA) brought a case against HTT Huntley Heritage Pty Ltd, charging the defendant with breaching a condition of their environment protection licence. The defendant was alleged to have accepted waste materials other than virgin excavated natural material (VENM) or non-hazardous bulk agricultural or crop waste at their premises, contravening condition L5.3 of their licence. The defendant denied the charges, arguing that the materials were not waste as defined by the Protection of the Environment Operations Act 1997 (POEO Act) and that their licence permitted the acceptance of such materials for crushing, grinding, or separating works.

The court examined the definition of 'waste' in the POEO Act and determined that the materials in question were indeed waste as they were discarded, rejected, unwanted, or surplus substances. Despite the defendant's intention to reprocess the materials for use in site rehabilitation, their character as waste remained unchanged. The court also found that the licence did not permit the acceptance of waste materials, including those intended for crushing, grinding, or separating works, thus condition L5.3 applied. The court held that the defendant had breached the licence condition L5.3 by accepting waste materials at their premises. The court found that the offence was a continuing one from 15 March 2001 until 29 August 2001, and the summons was filed within the statutory limitation period.

The court concluded that the defendant had breached condition L5.3 of its licence by accepting waste materials other than VENM or non-hazardous bulk agricultural or crop waste. The matter was stood over for submissions on conviction and penalty.

Orders