Environment Protection Authority v Shannongrove Pty Ltd - [2010] NSWLEC 162

No judgment structure available for this case.

Reported Decision: 176 LGERA 31

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Shannongrove Pty Ltd [2010] NSWLEC 162
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
PROSECUTOR
Environment Protection Authority
DEFENDANT
Shannongrove Pty Ltd

FILE NUMBER(S): 50033; 50034 of 2009

CORAM: Craig J

KEY ISSUES:
ENVIRONMENTAL OFFENCES :- transportation of waste to a place that could not lawfully be used as a waste facility for that waste – liquid residue from municipal solid waste treatment facility – soil injection of transported liquid at farming property – liquid claimed to increase soil fertility – characterisation as ‘waste’ at source and not at disposition site – unwanted and surplus product of treatment facility – “waste” within the meaning of the Protection of Environment Operations Act 1997
ENVIRONMENTAL OFFENCES:- transportation of waste to a place that could not lawfully be used as a waste facility for that waste – soil injection at farm – frequency of process and volume of liquid injected – use of farm as a “waste facility” – liquid injected not a category of organic liquid waste identified in cl (3)(d1) of the “waste facilities” item in Sch 1 to the Protection of Environment Operations Act 1997 – farm required to be licensed as a “waste facility” – no licence held
STATUTORY INTERPRETATION:- requirement for a licence as a “waste facility” to dispose of liquid waste – claimed inconsistency with Waste Guidelines published by prosecutor – Guidelines given no general statutory force – no ambiguity or inconsistency within legislation creating the offence – no doubt to be resolved in favour of defendant when determining whether offence committed

LEGISLATION CITED: Environmental Protection Act 1990 (UK)
Occupational Health and Safety Act 1983, ss 15, 16, 53
Protection of the Environment Operations Act 1997, ss 6, 45, 48, 115, 143, 144, Sch 1
Protection of the Environment Operations (Waste) Regulation 1996
Protection of the Environment Operations (Waste) Regulation 2005
Waste Minimisation and Management Act 1995

CASES CITED: Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569
Environment Agency v Inglenorth Limited [2009] EWHC 670 (Admin)
Environment Protection Authority v Hardt [2006] NSWLEC 438; (2006) 148 LGERA 61
Environment Protection Authority v HTT Huntley Heritage Pty Ltd [2003] NSWLEC 76; (2003) 125 LGERA 332
He Kaw Teh v The Queen (1985) 157 CLR 523
Kirk v Industrial Relations Commission of NSW [2010] HCA 1; (2010) 239 CLR 531
Owen v Willtara Constructions Pty Ltd [1998] NSWLEC 216; (1998) 103 LGERA 137
Proudman v Dayman (1941) 67 CLR 536

TEXTS CITED: Biosolids Guidelines
Environmental Guidelines: Assessment Classification and Management of Liquid and Non-Liquid Wastes
DC Pearce and RS Geddes - Statutory Interpretion in Australia, 6th ed (2006) LexisNexis

DATES OF HEARING: 12,13,14 April 2010

DATE OF JUDGMENT:
7 September 2010

LEGAL REPRESENTATIVES:
PROSECUTOR
T G Howard
SOLICITORS
Environment Protection Authority
DEFENDANT
P J McEwen SC with S M Berveling (barrister)
SOLICITORS
Bamford Associates Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

CRAIG J

7 September 2010

50033 of 2009
50034 of 2009

ENVIRONMENT PROTECTION AUTHORITY v SHANNONGROVE PTY LTD

JUDGMENT

1 HIS HONOUR: Located on Wallgrove Road at Eastern Creek in western Sydney is a facility established to undertake the environmentally important task of processing municipal solid waste which would otherwise be taken to a landfill site. The process undertaken at the facility involves the recovery of recyclable material from that waste and the recycling of organics in the waste so as to generate energy and convert the waste into compost products.

2 This waste processing facility is operated by Eastern Creek Operations Pty Ltd (Eastern Creek Operations), a subsidiary of a public company known as Global Renewables Limited. The facility itself is known as the “UR-3R Facility”, an acronym for the Urban Resources Reduction Recovery and Recycling Facility (the UR-3R Facility). The process involved at the facility integrates a suite of process technologies which compendiously can be described as a mechanical biological treatment facility. This process itself produces liquid by-products or residues which have no utility in the operation of the facility and which Eastern Creek Operations seeks to discard. It pays for their removal from its site.

3 The defendant, Shannongrove Pty Ltd, was contracted to transport this liquid by-product or residue from the UR-3R Facility. It did so on many occasions by transporting it from Eastern Creek to a dairy farming property known as “Marylands” located at Northern Road, Bringelly (Marylands). There, the liquid was injected into the soil as a liquid fertilizer. This process of transport and soil injection of the liquid took place between January 2005 and July 2006.

4 The prosecutor alleges that the liquid by-product or residue transported by the defendant is “waste” within the meaning of the Protection of the Environment Operations Act 1997 (the Act). It also alleges that by reason of the injection of this “waste” into the soil at Marylands, that property was a “waste facility” within the meaning of the Act but was not licensed to receive that “waste”.

5 Accordingly, the defendant has been charged by summons with two offences against s 143 (1) of the Act of transporting waste to a place that could not lawfully be used as a waste facility for that waste.

6 The defendant has pleaded not guilty to that charge. A trial has been held. The task is now to determine whether each charge is proven to the requisite criminal standard.

Summons 50033 of 2009

7 The defendant is charged:

That between about 28 January 2005 and 28 April 2006 inclusive, at or near Bringelly in the State of New South Wales, it committed an offence against s 143(1) of the Protection of the Environment Operations Act 1997, in that it transported waste to a place that could not lawfully be used as a waste facility for that waste.

Particulars

a. Waste:

Liquid waste including “digestor liquid” and/or “percolate” and/or “excess process water”.

b. Place:

At or near Lot 29 DP 872135, Bringelly, in the State of New South Wales (“the premises”).

c. Manner of breach:

The defendant transported waste by truck to the premises.

d. Date on which evidence of the alleged offence first came to the attention of an authorised officer:

Evidence of the alleged offence first came to the attention of authorised officer Stephen Beaman on 8 June 2006.

Summons 50034 of 2009

8 The defendant is charged:

That between about 1 May 2006 and 5 July 2006 inclusive, at or near Bringelly in the State of New South Wales, it committed an offence against s 143(1) of the Protection of the Environment Operations Act 1997, in that it transported waste to a place that could not lawfully be used as a waste facility for that waste.

Particulars

a. Waste:

Liquid waste that included “firewater” and/or “digestor liquid” and/or “percolate” and/or “excess process water” and/or “denitrification reactor wastewater”.

b. Place:

At or near Lot 29 DP 872135, Bringelly, in the State of New South Wales (“the premises”).

c. Manner of breach:

The defendant transported waste by truck to the premises.

d. Date on which evidence of the alleged offence first came to the attention of an authorised officer:

Evidence of the alleged offence first came to the attention of authorised officer Stephen Beaman on 8 June 2006.

Two charges: a continuous course of conduct

9 It will be observed that, save for the dates identified in each charge, the essential terms of the charge in each matter are identical. The prosecutor has explained that separate charges have been brought because s 143 was amended with effect from 1 May 2006.

10 As will shortly be apparent, the terms in which the offence under s 143(1) are expressed did not change in any way material to the present charges but the section was otherwise amended in two relevant respects. First, the maximum penalty prescribed for the offence in the case of a corporation was increased on 1 May 2006 from $250,000 to $1.0M. Secondly, the definition of “waste” contained in subsection (4) of s 143 was removed by the amendment which took effect on 1 May 2006.

The offence provisions

11 Prior to 1 May 2006, s 143 of the Act relevantly provided as follows:

143 Unlawful transporting of waste

Offence

(a) the person, and

(b) if the person is not the owner of the waste, the owner,

are each guilty of an offence.

Proof of lawfulness

…

Defence – waste not deposited

Definitions

…

waste

12 From 1 May 2006, s 143 of the Act relevantly provided as follows:

143 Unlawful transporting or depositing of waste

Offence

(a) the person, and

(b) if the person is not the owner of the waste, the owner,

are each guilty of an offence.

…”.

13 Subsections (2) and (3C) as they appeared in the section earlier quoted were not altered by the May 2006 amendment. However, as I have earlier noted, the definition of waste was omitted from subsection (4).

14 Prior to 1 May 2006, “waste” was defined in the Dictionary to the Act in the following way:

“

waste

A substance is not precluded from being waste for the purposes of this Act merely because it can be reprocessed, re-used or recycled.”

15 Following the 1 May 2006 amendment, the definition of waste in the Dictionary was as follows:

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.”

16 Prior to 1 May 2006, the term “waste facility” was defined in the Dictionary to the Act to mean:

“any premises used for the storage, treatment, reprocessing, sorting or disposal of waste (except as provided by the regulations).”

17 In its post 1 May form, the same expression was defined to mean:

“any premises used for the storage, treatment, processing, sorting or disposal of waste (except as provided by the regulations).”

18 By s 48 of the Act, the carrying on of a “scheduled activity” was proscribed unless the owner of premises upon which such activity was being carried on was the holder of a licence authorising that activity. Subsection (1) of that section identified those activities which were “scheduled” by reference to Sch 1 to the Act. “Waste facilities” were listed as premises-based activities in Pt 1 of that Schedule. Among the classes of “waste facilities” identified in Sch 1 was a waste facility identified in paragraph (1)(f) of that item in the following terms:

“(f) landfill or application sites within the Sydney metropolitan or extended regulated areas, being landfill or application sites that are located in the Sydney metropolitan area or the extended regulated area , except those :

(i) that receive only coal washery rejects or slags at a rate of not more than 20,000 tonnes per year, or
(ii) that are situated on residential premises, or on land principally for farming operations, and only if the disposal of waste is carried out on site, or
(iii) that received no more than 20,000 tonnes of inert waste only over a period of time, and only if the disposal of the waste is incidental or ancillary to the land being used for a purpose other than as a landfill or application site (eg the construction of buildings or roads or other similar types of infrastructure development), … ”.

19 The expression “landfill or application site” was defined in the special interpretative provisions relating to waste in Div 2 of Pt 3 of Sch 1 to the Act. It was there defined as follows:

landfill or application site

20 In the context of the class of waste facility identified in paragraph 1(f), it is accepted by the defendant that Marylands is located within the Sydney metropolitan area, as that expression is defined in the special interpretative provisions relating to waste. It is also accepted by the defendant that none of the exceptions identified in paragraphs (i) to (iii) of cl (1)(f) apply to the activities conducted at Marylands.

Evidence

21 The material facts pertaining to the offences with which the defendant is charged are not substantially in contest. The defendant has adopted a statement of “Agreed Facts for Trial” (Exhibit B) upon which the matters of fact, shortly to be stated, are founded. The only factual issue tendered by the defendant for determination is the proper description of a relatively small proportion of the liquid transported by it from Eastern Creek to Bringelly, although the description of that substance does not go to any essential element of the charges. Fundamentally, the defendant contends that a proper application of the facts to the provisions of the Act creating the offence fail to demonstrate that a breach of the Act has been committed.

22 By reference to the charges, it is convenient to refer to the period from 28 January 2005 to 28 April 2006 as “the first charge period”. The period from 1 May 2006 to 5 July 2006 will be referred to as “the second charge period”.

The UR-3R Facility: its operation

23 Municipal solid waste from the local government areas of Fairfield and Blacktown is received and processed at the UR-3R Facility at Eastern Creek. It is a facility that is licensed as a waste facility under the Act to receive, store and process this waste.

24 The municipal waste that it receives is waste collected from residential kerbside garbage containers in those local government areas. It represents that waste which is not separated by householders into recyclable components. It is generally regarded as putrescible waste and comprises garden clippings, kitchen waste and other household waste discarded to the household waste bin.

25 Once received at the UR-3R Facility, the waste is subjected to a mechanical treatment process which includes separation of the waste into size fractions, magnetic and non-magnetic metals recovery and also involves wind sifting and hand sorting. A bailer is used to package recyclables for ease of transport to a recycling facility.

26 Following mechanical processing, an organic-rich fraction of the waste is produced. This material is comprised primarily but not exclusively of food waste and green waste which is then fed to percolators. Water is added from a denitrification tank to the percolators containing this mix.

27 The percolators are used to homogenise the organic materials through mixing, aerobic digestion and aeration. The water which is added provides a medium to transform the organics within the waste into a liquid phase by washing out the easily biodegradable products from the process. The solids which are then left in the percolators are rich in organics and are removed through dewatering presses and then conveyed to the compost hall for composting. The water that is removed through the dewatering process, which is also rich in organic matter is, in turn, added to the liquid containing the biodegradable organic products. These two liquid streams from the process undertaken in the percolators is referred to as “percolate”. Percolate then passes to an anaerobic digester. Anaerobic micro-organisms within the digester feed off the organic matter in the percolate to produce biogas. This biogas, which is composed of methane and carbon dioxide, is then used to generate electricity by passing through gas engines.

28 As the description of the process in the digesters suggests, anaerobic digestion is a process that takes place in the absence of oxygen and requires the presence of anaerobic micro-organisms. When the facility was first commissioned in September 2004, it was necessary to build up the biomass of anaerobic micro-organisms in order to treat the percolate. The source of this biomass initially included pig manure, spent molasses and beer. Molasses has since been used on occasion as a feed supplement for those micro-organisms.

29 In order to minimise the accumulation of ammonia in the anaerobic digesters, an ammonia removal system is deployed. The process of ammonia removal is referred to as denitrification.

30 Denitrification involves an aerated process whereby ammonia is liberated from the liquid phase into a gas phase. Water circulating between the denitrification digester and the anaerobic digesters involves a continuous loop although interrupted between digesters by passage through a centrifuge. The function of this centrifuge is to separate the biomass and liquid phase so that only liquid is sent for ammonia removal in the denitrification process. The solids from this centrifuge which consists mainly of anaerobic micro-organisms are returned to the anaerobic digester. Some of the liquid from the denitrification process is used for the additional water to the percolators. The water cycle around the digesters is largely a closed system.

31 A further process utilised as part of the UR-3R Facility is known as SCT composting. It involves an aerobic process where the organic material removed from the percolators undergoes intensive degradation. This process of intensive degradation, which is the composting of the material, involves an exothermic biological reaction causing water in the organic material to be evaporated. As a consequence, water and air are required to be added in order to maintain the biological activity necessary for the composting process.

32 The water added to this composting process is either process water or water pumped from what is described as the “first flush” dam. This dam collects stormwater runoff from the site.

33 Although the UR-3R Facility was designed to operate by use of what is called a “closed water loop”, at times, during both charge periods, water or liquid in excess of the needs of the facility was generated, thereby necessitating its removal from the site. This liquid was differently constituted and depending upon its source in the process, was described as “processes water”, “digester liquid”, “denitrification reactor waste”, “percolate” and “fire water”. While the first four of these different liquids originated from different parts of the process, the description “fire water” requires some brief explanation.

34 On 12 May 2006 a fire broke out at the UR-3R Facility. Water used to control the fire was collected in sumps around the facility and then pumped into a process water tank for storage pending removal from the site.

35 It is necessary to record a brief description of the various types of liquids earlier identified as being those which are produced in excess of the needs of the facility and thereby necessitating their removal from the site. The liquids were described in the affidavit evidence of Michael Bonanno, the Technical Manager employed by Eastern Creek Operations at the UR-3R Facility. He was cross-examined at trial but his description of these liquids was not challenged.

36 “Digester liquid” is the liquid generated in the anaerobic digesters. It contains various organic compounds including organic carbon, nitrogen and ammonia. It is a liquid which is described as “typically a high-solids black liquid”. On occasions, it has been removed directly from the digesters or via the process water tank from which it is pumped to road tankers for removal from the site. It is a liquid that is also referred to as “digester sludge”, “digester water” or “digester raking”.

37 The facility at Eastern Creek uses a large tank having a volume of about 100 cubic metres which is known as the process water tank. It stores water for use in the composting process. This process water contains digester liquid, water from the composting process and stormwater captured in bunds and sumps from around the site.

38 When process water in the process water tank exceeds the requirements for use in the composting process, the excess volume is required to be removed for disposal and is referred to as “excess process water”. The excess process water is described as typically being “a medium to high solids black liquid”.

39 From time to time it has been necessary to empty the denitrification reactor for maintenance and cleaning. Water generated in cleaning the reactor is required to be removed from the site and is transported in the same manner as is excess process water. This waste water is described as a medium to high solids brown or black liquid.

40 As earlier described, the percolators at the UR-3R Facility wash organic materials from municipal solid waste. The liquid produced from the percolators and associated dewatering presses is referred to as “percolate” which is fed to the anaerobic digesters.

41 During 2005 and 2006 there were several occasions upon which percolate was required to be removed from the facility. It was removed in the same manner as was excess process water, that is, by pumping from the process water tank. This liquid is described as being a high-solids brown liquid.

Transportation of liquid from the UR-3R Facility

42 The defendant admits that between 28 January 2005 and 5 July 2006 it transported liquid from the UR-3R Facility at Eastern Creek to Marylands at Bringelly. It did this by use of a road tanker comprising a prime mover and trailer which themselves are the subject of a waste transportation licence issued to the defendant under the Act. This road tanker was driven either by an employee, Mr Ray Jones, or Mr Neville Gilmartin, one of the two directors of the defendant.

43 Each tanker load carried by the defendant’s vehicle contained approximately 25 – 28 tonnes of liquid, equating to approximately 25,000 – 28,000 litres per load. The defendant acknowledged that between 25 January 2005 and 5 July 2006 it transported 5,675.88 tonnes of liquid. It asserts that all of such liquid was excess process water. The prosecutor contends that 4,975.47 tonnes of this liquid was excess process water but the balance was made up of digester liquid, denitrification reactor waste, percolate and fire water.

44 The liquid transported by the defendant was usually pumped from a tank located at the UR-3R Facility, known as the process water tank, using a hose which connected directly to the defendant’s road tanker. Once the tanker was loaded it would be driven over a neighbouring weighbridge and a docket completed indicating the date of transfer, the carrier, vehicle registration details, driver name, time, description of the liquid carried and tonnage of that liquid.

45 All of the information last identified was compiled into a spreadsheet for the period between 28 January 2005 and 5 July 2006 (the Transportation Spreadsheet). The defendant accepts the accuracy of the information contained in the Transportation Spreadsheet except for the description of liquids transported and their volumes or tonnage. As had previously been indicated, the defendant contends that the tonnage of liquid transported by it during the period was 5,675.88 tonnes and that the liquid so transported was excess process water.

Disposal of liquid at Marylands

46 Marylands is said to have been operated for commercial dairy farming since 1870. It was certainly so operated between January 2005 and July 2006. The property is owned and managed by Maryalan Pty Ltd (Maryalan) which carries on its dairy farming activities under the trading name of Maryland Farming Company.

47 In 2004, agreement was reached between Maryalan and the defendant enabling the latter to apply liquid transported from the UR-3R Facility to the paddocks of Marylands by a soil injection process. There were no payments made to or by Maryalan for this activity. The defendant claimed that Marylands benefited from the fertilisation and increased moisture of the soil provided by the liquid brought to the site.

48 Upon the arrival of each load of liquid at Marylands, the farm manager nominated those areas of the property to which the liquid was to be applied. Employees of the defendant then applied the liquid using a soil injection machine.

49 This machine was a purpose built tanker trailer with three tines mounted at its rear. It was designed to be towed by a tractor. The injection machine was hydraulically operated from the tractor so as to control the vertical movement of the tines. When operating, the tines were extended into the ground to a depth of approximately 30 centimetres and the liquid then injected into the soil. This process of soil injection apparently took about ten minutes for each load of the injection machine. Its capacity was such that four machine loads were usually required to empty the contents of the delivering road tanker, there being no storage facility for the liquid at the farm site.

Payment for transportation of liquid

50 Following commission of the UR-3R Facility in late 2004, Eastern Creek Operations engaged contractors to collect, transport and dispose of the excess liquids generated at the UR-3R Facility. Contractors were paid by Eastern Creek Operations for that service. At various times the defendant was one such contractor.

51 Between January 2005 and April 2006, the defendant usually transported liquid from the UR-3R Facility as a sub-contractor to other companies which were contracted to carry out the task. In its capacity as a sub-contractor, the defendant charged a fee to the principal contractor.

52 The defendant had made known to the principal transport contractors that Marylands was available to receive liquids transported from the UR-3R Facility. If carriers other than the defendant delivered liquids to Marylands, the defendant charged that contractor a fee on a rate per tonne for each load of liquid delivered. The defendant took responsibility for carrying out the soil injection operation.

53 Between May 2006 and 5 July 2006 the defendant contracted directly with Eastern Creek Operations to transport liquid generated at the UR-3R Facility to Marylands. During this period the fee paid by Eastern Creek Operations to the defendant was a rate of $27 per tonne. Prior to May 2006, the rate paid to contractors for transporting this liquid ranged from $58 per tonne prior to November 2005 down to $30 per tonne in January 2006.

The events of 5 July 2006

54 Early in the morning of 5 July 2006, two officers of the prosecutor, Susan Fox and Danielle Playford, observed the defendant’s road tanker leave the UR-3R Facility at Eastern Creek with a load of liquid which had just been collected from that facility. Later in the morning those same officers drove to Marylands. There they observed the defendant’s road tanker which the defendant accepts contained the liquid loaded earlier that morning from the UR-3R Facility.

55 The driver of the road tanker was identified as Ray Jones, an employee of the defendant. Mr Jones informed the officers that the load had come from the UR-3R Facility and “contained liquid fertiliser”. He stated that he had collected three loads that morning with each load being approximately 28,000 litres. Mr Jones further indicated that he had been collecting liquid from the UR-3R Facility and delivering it to Marylands for approximately one year.

56 Samples of the liquid being carried by the road tanker were taken. The liquid was described as being dark brown, nearly black in colour, having a pungent odour. That odour was described as being “an earthy anaerobic odour similar to the odour from a leachate pond at a landfill or composting facility.”

57 Following their discussion with Mr Jones, the officers returned to the UR-3R Facility at Eastern Creek. There they collected samples from the hose leading from the process water tank, being the hose used to discharge the excess process water from that tank to the defendant’s road tanker earlier that day. The samples so taken had similar colouring and odour to those taken earlier in the day at Marylands.

58 Thereafter, transporting of liquid from the UR-3R Facility to Marylands ceased.

59 The defendant acknowledged (Exhibit B) that during the period from 28 January 2005 to 5 July 2006 no licence was in force which permitted the operation of a waste facility at Marylands. Moreover, the defendant acknowledged that at no time has there been a licence in force under the Act pertaining to the operation of a waste facility on that property.

Additional evidence

60 I have earlier referred to the evidence contained in an affidavit sworn by Michael Bonanno, the Technical Manager of the UR-3R Facility. Mr Bonanno was cross-examined on behalf of the defendant. He was initially cross-examined upon correspondence received by his employer directed to the analysis of some of the surplus liquid sought to be removed from the UR-3R Facility. That correspondence, from a private testing laboratory, had suggested that the liquid was of a kind that, having regard to the provisions of the Environmental Guidelines: Assessment Classification and Management of Liquid and Non-Liquid Wastes (the Guidelines) published by the prosecutor, no licence under the Act was required for the disposal of these liquids.

61 He was also questioned about correspondence which had passed between his employer and the prosecutor concerning the assertion made in the testing laboratory letter and the response of the prosecutor contending that a licence was required. He was asked whether correspondence from the prosecutor stating that opinion had been brought to the attention of the defendant, eliciting a response that he did not recall doing so. It was suggested to Mr Bonanno that it was to the financial advantage of Eastern Creek Operations, as operator of the UR-3R Facility, to withhold the contention advanced by the prosecutor from the defendant. This, so the suggestion ran, would enable Eastern Creek Operations to dispose of its surplus liquids more cheaply than would be the case if those liquids were required to be further treated or taken to a licensed facility for treatment. This suggestion was denied by Mr Bonanno.

62 To the extent to which this evidence gave rise to an inference that the defendant was operating in the belief that the liquids transported by it from the UR-3R Facility were not required to be taken to a licensed waste facility, the inference was countered by correspondence from the prosecutor both to the defendant directly and to a company of which both Neville Gillmartin and Susan Gillmartin were directors at the time at which the letter was written. Mr and Mrs Gillmartin are the sole directors of the present defendant. Those letters indicated that liquid waste identified in the Act and also described in the Guidelines as “non-controlled aqueous liquid waste” could only be applied to land which was a licensed waste facility under the provisions of the Act.

63 Notwithstanding this evidence, ultimately it became unnecessary to address it. Neither in the written submissions nor final oral submissions made on behalf of the defendant was any reference made to it. In the absence of any such submission, the relevance of the evidence to the determination as to whether the offences charged have been proved is not apparent.

64 Affidavit evidence was also adduced by the prosecutor from Danielle Playford, an officer of the prosecutor and an authorised officer for the purpose of the Act. The substance of most of her affidavit evidence was included in Exhibit B. She deposed to the observations made on 5 July 2006 both at the UR-3R Facility and at Marylands. Those are observations that I have earlier recorded. Ms Playford also deposed to the taking of the samples, their appearance and odour, evidence to which I have also referred.

65 Ms Playford was also cross-examined on behalf of the defendant. The thrust of the cross-examination was directed to the time at which Ms Playford first became aware of evidence giving rise to the offences with which the defendant has been charged. Her evidence was that prior to the events giving rise to the current charges, her last prior involvement with Marylands was in 2003, that is, two years prior to the period for which the defendant is charged. The purpose of this cross-examination was said to be directed to s 216 of the Act. That section fixes the time within which proceedings of the present kind must be commenced. Ultimately, no submission was made on behalf of the defendant that proceedings for the present offences were commenced contrary to s 216 of the Act.

66 For its part, the defendant read three affidavits sworn respectively by Steven Smith, Craig Ford and Peter Bacon. Although each of these deponents had sworn lengthy affidavits, much of the material contained in them was either not read or rejected as being irrelevant to the determination of guilt.

67 Mr Smith is an engineer, employed by a company that specialises in environmental management, site contamination assessment and water and waste treatment. The focus of that part of his evidence which was admitted was upon the Guidelines. By reference to them he opined, in chief, that the treatment of municipal solid waste at the UR-3R Facility was a process identical to that undertaken in the treatment of sewage. He stated that the by-product taken as liquid waste from that facility to Marylands “had similar characteristics as partly digested sewage sludge”.

68 This evidence was given in the context of the definition of “biosolids” contained in the Guidelines which Mr Smith extracted as meaning “the organic product that results from sewage treatment processes”. However, as he acknowledged in cross-examination, his extract of the definition was incomplete. The definition inserts, after the words which he had quoted, an important qualification expressed as follows:

“(namely, material referred to alternatively as sewage sludge).”

69 Faced with that qualification, the evidence proceeded (T128.12) -

“Q. You wouldn’t suggest to his Honour for a moment, would you, that the liquid material that was taken away from the UR3R facility would be referred to alternatively as sewage sludge, would you?

A. No.”

70 Mr Bacon is an environmental scientist specialising in agriculture. He described the liquid transported by the defendant as containing some of the components of “organic waste”, as that term is defined in the Guidelines. He also opined that from the analysis of the liquid undertaken on behalf of the prosecutor, it appeared that none of the samples tested indicated that concentrations for “non-controlled aqueous liquid waste” were exceeded. He therefore concluded that samples taken of this liquid were consistent with the classification of the liquid as non-controlled aqueous liquid waste within the meaning of the Guidelines.

71 The use of biosolids in agriculture was also the subject of Mr Bacon’s evidence. He described biosolids as being “essentially sewage sludge produced from sewage plant digesters.” His evidence was that “in 2000/1 some 74,000t of lime amended biosolids and 33,000t of dewatered biosolids were utilised in NSW agriculture.” He also indicated that subject to the site to which they were being applied, biosolids may be surface applied or injected below the surface.

72 Finally, he referred to photographs of Marylands showing sections of the property prior to the application of liquid transported from the UR-3R Facility and photographs taken following both subsoil injection of the liquid and subsequent growth of pasture or fodder crops upon those same sections of the property. The opinion that he expressed upon viewing those photographs was that they indicate “that any response of the paddock was positive not negative”. This observation was not further explained in the evidence.

73 Mr Ford has been employed as the farm manager of Marylands for the past 11 years. He acted in that capacity between January 2005 and July 2006. He described Marylands as a 700 acre dairy farm presently carrying 400 head of cattle of which 200 are milking cows. Milk is supplied from the farm to Dairy Farmers Co-Operative Limited.

74 Observations of a general nature were made by Mr Ford as to the operation of the farm, following commencement of soil injection of liquid from the UR-3R Facility. He observed that paddocks which had been soil injected with the liquid “reacted first to any rain or irrigation on the farm and gave a higher crop yield by at least 25%”. He also asserted that soil injection of this liquid had reduced the need to buy and apply fertiliser; that as a consequence milk production per cow has increased, and that the stocking rate per hectare has been increased due to the high yield from crops planted in paddocks that had been soil injected with the liquid.

Elements of the offence

75 The elements of the offence against s 143(1) of the Act are:

(i) the defendant transported a substance;

(ii) that substance is “waste” within the meaning of the Act;

(iii) the place to which that waste was transported was being used as a “waste facility” within the meaning of the Act;

(iv) that place could not lawfully be used as a waste facility for that waste.

Transport

76 As I have earlier indicated, the defendant admits that it deployed its road tanker to carry liquid residues from the UR-3R Facility at Eastern Creek to Marylands. Further, it admits to so doing between 5 January 2005 and 5 July 2006. I am therefore satisfied beyond reasonable doubt that the defendant did transport a substance, namely liquid from the UR-3R Facility at Eastern Creek, to Marylands during the periods identified in the charges against it.

The liquid transported was waste

77 The question as to whether the liquid transported by the defendant was “waste” within the meaning of the Act was one of the two principal issues debated at trial. Ultimately, it was the submission of the defendant that the liquid transported by it was not waste because when applied to the soil at Marylands it served a beneficial agricultural purpose. There are steps in its argument which require elaboration.

78 It will be remembered from my earlier recitation of the statutory provisions that during the first charge period, the term “waste” was defined both in s 143(4) and in the Dictionary to the Act. The latter definition commenced with the parenthetical exception expressed in the words “unless specially defined”. The defendant submits that the definition found in s 143 is the definition to be applied for the first charge period. I accept this as being correct.

79 The first step in the defendant’s argument is to direct attention to subsection (3C) of s 143. It is the provision that affords a defence to a prosecution under s 143(1) on the basis that waste transported by the defendant was not deposited by the defendant at the place to which it was transported (see [11]). Having regard to the terms of subsection (3C) the defendant contends that whether the transported material was “waste” is a question to be determined by so categorising it at the time at which the material is deposited. Thus, so the argument runs, it is necessary to determine whether the liquid transported to Marylands was “waste” at the time at which it was loaded into the soil injection machine at that property.

80 In applying the words of the definition of “waste” contained in s 143(4), the defendant accepts that the liquid transported by it was “waste” in the hands of Eastern Creek Operations, as operator of the UR-3R Facility. As expressed in its submissions, the defendant said that the liquid was “plainly waste to [Eastern Creek Operations] and surplus to their [sic] needs” (T154.20). The defendant’s written submissions also accept, by implication, that in the hands of Eastern Creek Operations the material was “unwanted” in the context of the definition of “waste”.

81 However, the defendant contends that once collected by the defendant from the UR-3R Facility and payment made to it by Eastern Creek Operations, title to the liquid passed to the defendant, at which point in time the material “was of value because Shannongrove was taking it to a place for beneficial application.” The argument continues that because of the beneficial nature of the material both at the time of its transportation and at the time of its deposition “it was then neither an ‘unwanted’ nor a ‘surplus’ substance.”

82 That submission is made by reference both to the definition of “waste” in s 143(4) during the first charge period and by reference to paragraph (b) of the definition of “waste” contained in the Dictionary to the Act during the second charge period. Further, by parity of reasoning, the defendant contends that paragraph (c) of the definition of “waste” in the Dictionary is not engaged by its transportation of liquid during the second charge period.

83 In the alternative, the defendant submits that as deposition of the liquid from the UR-3R Facility is a necessary element of the offence, once the liquid was injected into the soil at Marylands, property in it passed to Maryalan as owner of Marylands and as property of Maryalan, the liquid did not attract any of the elements of the relevant definitions of “waste”. Presumably, this is because it was wanted by Maryalan and was not surplus to its requirements.

84 I do not accept the defendants submissions as involving the correct application of the facts in this case to the relevant provisions of the Act. The alternate submission of the defendant that I have last identified does, to my mind, exemplify an approach to the statutory provisions which elides their true meaning and effect.

85 Fundamental to the defendant’s submission are the terms of s 143(3C). However, proper consideration of that subsection does not result in the conclusion for which the defendant contends. It must be read in context.

86 Subsection (1) of s 143 proscribes the transportation of waste. So understood, it is to be contrasted with the provisions of s 115(1) of the Act (in force during both charge periods) which proscribed the unlawful disposal of waste. It is also to be contrasted with s 144(1) (also in force during both charge periods) which proscribed the use of land as a waste facility for the deposition of waste. The exercise of contrasting these latter provisions with s 143(1) makes tolerably clear that, for the purpose of that section, the time at which characterisation of material as “waste” is to be undertaken is at the time of its transportation.

87 Transportation of material, being the carrying of it from one place to another, is necessarily anterior to the deposition or use of the material at the place to which it is transported. If the distinction between transport and deposition was removed, it is not readily apparent to me why the creation of separate offences of the kind found in ss 115 and 144 would be necessary. Those sections deal separately with the use of land by deposition of waste upon it.

88 The reliance by the defendant upon the provisions of s 143(3C) to sustain its submission that waste must be categorised as such at the time of deposition at the place to which it is transported misconceives the purpose served by that subsection. It provides a defence “if the defendant establishes” that the waste was not deposited by that defendant or another person at the place to which it was transported. The availability of a defence in these terms does not detract from the essence of the offence under s143(1) as being directed to the transportation of the waste. Indeed, the premise upon which the defence is available is that “the waste transported by the defendant” (added emphasis) has not been deposited at the delivery site. Contrary to the defendant’s submission, the subsection only has meaning if the material transported is, at the time of transport, “waste”.

89 For these reasons, the relevant inquiry is as to whether the prosecutor has established beyond reasonable doubt that, at the time at which the liquid from the UR-3R facility was loaded into the defendant’s road tanker and then driven to Marylands, it was “waste”. For both charge periods this requires a determination as to whether the liquid was an unwanted or surplus substance within the meaning of the definitions in both s 143 itself (for the first charge period) and in the Dictionary to the Act (for the second charge period).

90 On the evidence, there can be no doubt that the liquid transported by the defendant was an unwanted, surplus by-product of the waste treatment process carried out at the UR-3R Facility. So much appears to be conceded by the defendant and, in any event, is apparent from the evidence of Mr Bonanno. He described the UR-3R process as generating “various liquid wastes” which he then described. Those liquid wastes, so described were “digester liquid”, “excess process water”, “denitrification reactor waste”, “percolate” and “fire water”.

91 The words “unwanted” and “surplus” are not defined. They are words of ordinary English usage. They are used as words within the statutory definitions of “waste” which are, in turn, inclusive definitions. This allows the words to be understood in their ordinary meaning so long as the included words are taken into account when applying that ordinary meaning. Relevantly, the terms “unwanted” and “surplus” should be understood in a way which is harmonious with the ordinary concept of waste. This, in turn, brings focus upon the categorisation of the material at its source when determining whether it has some general utility or value, in the sense of making it wanted, rather than embarking upon an inquiry as to whether the transporter wanted the material. Such an approach to the interpretation of “waste” is supported by the qualifying sentence contained in each of the definitions, stating that a substance is not precluded from being waste “merely because it may be reprocessed, re-used or recycled”.

92 This consideration of the statutory definition leads me to conclude that the liquid transported by the defendant was “waste” within the meaning of the Act. It was clearly “waste” at the UR-3R Facility. The evidence of Mr Bonanno to which I have referred makes that abundantly clear. It was surplus to the operation of the UR-3R Facility and was unwanted by it. The objective characterisation of the material at its source must be a primary consideration when determining whether it is “waste”.

93 My opinion that it should be so regarded is reinforced by the following factors:

(i) the function of the UR-3R Facility, itself licensed as a waste facility under the Act, was the receipt and processing of municipal solid waste from kerbside garbage by recovering recyclable materials from that waste and recycling organics into energy and compost products;

(ii) the liquid transported from the UR-3R Facility represents that fraction from the waste treatment process that could not be recovered by it for a generally beneficial purpose;

(iii) Eastern Creek Operations paid for the removal of the material.

94 If a carrier such as the defendant is paid to transport material from the UR-3R Facility, that carrier will always be one who “wants” the material. However, this circumstance cannot inform the sense in which the word “unwanted” is used in the definition of “waste”. If the question of whether a substance is unwanted or surplus was to be answered by asking whether it was wanted by a person paid to transport it from one site to another, the definitions of “waste” in the Act would be given little work to do.

95 The defendant wanted the liquid from the UR-3R Facility only in the sense that it was a commercially desirable outcome that it be paid a rate per tonne for its removal. The defendant submitted that once pumped into the defendant’s road tanker, Eastern Creek Operations did not control its ultimate destination. Accepting, for the purpose of the submission, this to be correct, Eastern Creek Operations was paying the defendant, either directly or through the principal haulage contractors it engaged, to dispose of the liquid that it did not want. The defendant chose Marylands as the place for disposal of the liquid, a place in which it had no financial interest other than an indirect one by potentially saving it from payment of a disposal fee.

96 These observations are equally apposite to both charge periods. Paragraph (b) of the definition of “waste” in the Dictionary to the Act, as amended on 1 May 2006, included “any discarded, rejected, unwanted, surplus or abandoned substance”. While the liquid may not have been abandoned, it was certainly a substance that was discarded as well as being unwanted or surplus at the UR-3R Facility. Even if it be said that upon arrival at Marylands it was intended for recycling, processing or recovery, it was for reasons already discussed, “otherwise discarded, rejected, unwanted” or “surplus” within the meaning of paragraph (c) of the post 1 May 2006 definition of “waste”.

97 The approach that I have taken to the determination of the transported material as being “waste” is consistent with the approach taken by Pearlman J in Environment Protection Authority v HTT Huntley Heritage Pty Ltd [2003] NSWLEC 76; (2003) 125 LGERA 332. Huntley was charged under s 64(c) of the Act with breaching a condition of an environment protection licence by accepting construction and demolition waste onto its mining site. The licence condition limited, by description, the waste material that could be received. It did not include construction and demolition waste.

98 In order to succeed, Huntley needed to establish that the construction and demolition material was not “waste” within the meaning of the Act. That material, which was to be used for rehabilitation of a mining site, had come to Huntley through Collex which operated a waste collection service. It collected construction and demolition waste from construction sites and then sorted that material so as to leave a mix of predominately soil, dirt, bricks and concrete which it called “primary sorted waste”. It was that material which was sent to Huntley’s premises where, with further processing, it would be reusable in the process of site rehabilitation. For the purpose of the case, that material was referred to as “C & D material”.

99 In Huntley, her Honour was required to determine whether the C & D material was “waste” within the meaning of the definition contained in the Dictionary to the Act. That definition was in the same terms as that earlier quoted in this judgment as it related to the first charge period. In dealing with the question as to whether the material was waste her Honour said (at [20]):

“It was unwanted or surplus material from construction or demolition sites. And it came as waste into the hands of the licensed waste facilities, such as Collex, which ultimately delivered it, after initial processing and payment of a fee, to the defendant. The question is – was it still ‘waste’ at the time it was accepted by the defendant at the premises? I do not accept that the C & D material changed its character upon its acceptance at the premises simply because the defendant intended to reprocess it and use it for rehabilitation of the premises. That follows, I think, for two reasons. The first is the explicit reference in the definition to the fact that ‘[a] substance is not precluded from being waste for the purposes of this Act merely because it can be reprocessed, re-used or recycled’. Its character as waste remained even though it was material which was capable of being reprocessed, re-used or recycled. Secondly, the defendant’s intention to use it did not change its character as waste by reason of the express words of subcl (c) of the definition – that is, it falls within the description in sub cl (c) even if it is ‘ … intended … for … reprocessing … by a separate operation from that which produced the substance’.”

100 As in the present case, it was contended on behalf of Huntley that the C & D material was neither surplus nor unwanted because of the manner in which the company intended to use it. Pearlman J succinctly described the submission (at [18]) as being that “one man’s trash is another man’s treasure”. The submission was sought to be supported by a decision of Bignold J in Owen v Willtara Constructions Pty Ltd [1998] NSWLEC 216; (1998) 103 LGERA 137. The present defendant also relies upon the decision in that case to support its submission.

101 In Willtara, the company was charged with an offence under the Waste Minimisation and Management Act 1995 (now repealed) of disposing of waste on land without authority so to do. Willtara was a building contractor engaged to erect a residential flat building. For the purpose of construction it excavated a considerable volume of soil and stockpiled that soil on adjoining land pending the erection of the building, after which the soil was intended to be used as backfilling and for other purposes on the development site. One of the issues to be determined was whether the stockpiled material was “waste” within the meaning of the Waste Minimisation and Management Act which contained a definition identical in terms to that found in paragraph (b) of the definition in the Dictionary to the present Act. Bignold J held (at 153) that the stockpiled material was not “discarded, rejected, unwanted, surplus or abandoned”. In so doing, he said this (at [82]):

“I think the defence submission in relation to par (b) of the definition must be upheld in the light of my findings of fact, particularly my finding that the defendant, in stockpiling the material, always intended to redeploy it in backfilling and other operations in carrying out the approved development project.”

102 The decision in Owen v Willtara is clearly distinguishable. The entity responsible for “creating” the material which was claimed to be waste had never discarded it and, understandably, had always wanted to use it as part of the process which had initially caused it to be stockpiled. That position stands in marked contrast to the present case where Eastern Creek Operations did not want the liquid which was the by-product of its waste processing operation. That material was always intended to be discarded.

103 In support of its submission as to the point in time at which the existence of “waste” should be determined, the defendant also relied upon the decision of the English High Court of Justice in Environment Agency v Inglenorth Limited [2009] EWHC 670 (Admin). There, a Divisional Court was required to determine a case stated by the Stockport Justices who had acquitted the defendant of offences under the Environmental Protection Act 1990 (UK). The essence of the two offences with which Inglenorth had been charged was the deposit of “controlled waste” on land for which a waste management licence was not held. The “controlled waste” was demolition material referred to in the judgment as “hardcore”.

104 In Inglenorth, the owner of a garden centre conducted his business from two separate sites. On one site he demolished a greenhouse in order to provide space for the erection of a new building. At the time of demolition it was his intention to use the hardcore from that demolition as fill at his second garden centre site. Inglenorth transported the hardcore to this second site and it was the deposition of that material at that site which founded the charges brought against it. At the time of transporting the waste, Inglenorth was aware of the intention of the garden centre proprietor to use the hardcore at his second site. There being no waste management licence in force for that site, the case ultimately required a determination as to whether the hardcore was “waste” within the meaning of the Environmental Protection Act (UK). In effect, the legislation defined that term to comprehend any substance or object in identified categories “which the holder discards or intends or is required to discard.”

105 The leading judgment in Inglenorth was delivered by Sir Anthony May. While acknowledging that hardcore derived from a demolition site may often be regarded as waste, he indicated that the circumstances of a particular case may dictate otherwise (at [17]). Ultimately, the facts of the particular case enabled his Lordship to determine “otherwise”, essentially because of the finding by the Magistrates that the holder of the waste, namely the garden centre proprietor, had determined not to discard the material, that determination having been made prior to the demolition of the greenhouse which was the source of the hardcore. Thus, it was not “waste” at the time of its deposition by Inglenorth at the second garden centre site.

106 The decision in Inglenorth does no more than demonstrate that the determination as to whether a substance is “waste” within the statutory definition will almost always involve a close examination of the facts pertaining to the particular substance and the circumstances in which it was created. The decision in that case is consonant with the decision of Bignold J in Owen v Willtara Constructions Pty Ltd. For the reason that I distinguish that case from the present, so also I distinguish the decision in Inglenorth. The intention of the garden centre proprietor, ultimately decisive in that case, is the antithesis of the intention held by Eastern Creek Operations in the present case. Inglenorth provides no support for the defendant’s submissions.

107 I have earlier determined that the liquid transported by the defendant from the UR-3R Facility was an unwanted, surplus by-product of the waste treatment process there carried out. I have also indicated that the defendant admitted transporting excess process water but not “digester liquid”, “denitrification reactor waste”, “percolate” or “fire water”. The transportation of each of those liquids by the defendant was identified in the Transportation Spreadsheet. In Exhibit B, the defendant accepted “that the information in the Transportation Spreadsheet is accurate” save that the detail as to volume and inclusion of any liquid other than excess process water was erroneous.

108 In his affidavit sworn 31 July 2009 Mr Bonanno gave evidence as to the preparation of the Transportation Spreadsheet, including the material from which it was compiled. It clearly identified the date of each load, the weight of such load and the description of liquid that was transported. Although Mr Bonanno was cross-examined on behalf of the defendant, his evidence as to the preparation of and the contents of the Transportation Spreadsheet was not challenged. None of the evidence called on behalf of the defendant cast doubt upon that evidence. I therefore have no basis upon which to doubt its accuracy, including the accuracy of descriptions of the liquid transported by the defendant.

109 Finally, I should indicate that after judgment in this matter had been reserved, a letter was received by my Associate from counsel for the defendant drawing attention to the decision of the High Court in Kirk v Industrial Relations Commission of NSW [2010] HCA 1; (2010) 239 CLR 531. It was indicated that the letter was not sent with the consent of counsel for the prosecutor. The letter stated that the judgment of the plurality in Kirk at [15] – [19] supported its submission “that the time and place for determination of an offence, if any, was at the property to which the material was transported, for ‘use’”.

110 Despite the irregularity attending the reference of this matter to me (the decision in Kirk was published and available well before the hearing of this matter) I have read the paragraphs to which I have been referred. I do not discern from those paragraphs any statement of principle which would require me to alter my approach to the application of the facts in this case to the definition of “waste” found either in s 143 or in the Dictionary to the Act. The observations of the High Court as to the provisions of s 53 of the Occupational Health andSafety Act 1983 and the obligation that it cast to frame the statement of an offence said to have been committed under ss 15 or 16 of that Act do not seem to bear upon the inquiry upon which I am required to embark in order to determine whether the definition of “waste” under the Act has been engaged on evidence adduced before me. Had I considered the reference on behalf of the defendant to have any impact upon the submissions otherwise made to me at the hearing, I would have re-listed the matter for further argument.

111 For all of these reasons, I find beyond reasonable doubt that the liquid transported by the defendant from the UR-3R Facility at Eastern Creek to Marylands during both charge periods was “waste” within the meaning of the Act. Further, I find beyond reasonable doubt that the total tonnage of waste so transported by the defendant was 5,659.31 tonnes comprising -

(i) 4,975.47 tonnes of excess process water;

(ii) 542.46 tonnes of digester liquid;

(iii) 83.6 tonnes of denitrification reactor waste;

(iv) 29.16 tonnes of percolate; and

(v) 28.62 tonnes of fire water.

Marylands was being used as a waste facility

112 This element of the offence was not separately addressed by the defendant. Its submission conflated this element with the fourth element of the offence, namely whether the place to which waste was transported, Marylands, could lawfully be used as a waste facility. As will be apparent when I address that fourth element of the offence, the defendant focussed its submissions upon Sch 1 of the Act and the reference contained in that Schedule to “waste facilities”.

113 Clearly, the question anterior to consideration of the classes of waste facility identified in Sch1 as requiring an environment protection licence is whether the activity in question is a “waste facility” within the meaning of the Act. That requires reference to the Dictionary to the Act which defines the term in the manner set out at [16] and [17]. It will be observed that the only amendment to the definition effected on 1 May 2006 is substitution of the word “processing” for the word “reprocessing” in the former definition. Nothing, for present purposes, turns upon that amendment.

114 The two questions posed for determination by the definition are first, whether Marylands had been used for disposal of waste, and second, whether any exception identified in the Regulations applies. As to the first of those questions, it seems to me that the answer is clear.

115 I have already determined that the liquid transported to the site from the UR-3R Facility was “waste” within the meaning of the Act. The fact that soil injection of that waste had repeatedly taken place at Marylands indicates that the property was being used for the disposal of that waste. As I will more fully discuss when dealing with the fourth element of the offence, the use of the property for soil injection was a repeated activity throughout both the first and second charge periods.

116 During the first charge period, the Protection of the Environment Operations (Waste) Regulation 1996 was in force. The Protection of the Environment Operations (Waste) Regulation 2005 commenced on 1 September 2005, although many of its provisions did not commence until 1 March 2006. It was the operative Regulation for part of the second charge period. Neither of those Regulations imposed any relevant qualification upon the meaning of “waste facility”, as that term was defined in the Dictionary to the Act. It was not contended otherwise by either party.

117 Accordingly, I am satisfied beyond reasonable doubt that Marylands, being the place to which waste from the UR-3R Facility was transported by the defendant during each charge period, was being used as a “waste facility” within the meaning of the Act.

No lawful use as a waste facility

118 The defendant accepts that by dint of s 143(2) of the Act, it bears the onus of proving that ‘Maryland’ could lawfully be used as a waste facility for the liquid waste transported from the UR-3R Facility. It seeks to establish the lawfulness of its use on two bases. First, it submits that upon the proper application of the facts to the relevant provisions of Sch 1 to the Act, Marylands was not a “waste facility” for which an environmental protection licence was required. Secondly, it relies upon the Guidelines to suggest that sufficient doubt attends the need for a licence for its activities such that those doubts would be resolved in its favour, thereby resulting in its acquittal of the present charges.

119 The prosecutor submits that Marylands could not lawfully be used as a waste facility within the meaning of the Act because it was a waste facility which was required to be licensed under the Act but was not, in fact, so licensed. Reference is made to s 48 of the Act which identifies by reference to Sch 1 the premises for which a licence is required. Part 1 of Sch 1 is headed “[a]ctivities premises-based”. The opening paragraph of that Part is in the following terms:

premises-based

120 Beneath the listing of the item “Waste facilities” in Pt 1 of Sch1, cl (1) refers to “[a] waste facility that is of any one or more of the following classes”. The class of facility identified in paragraph (f) is then included in the terms that I have quoted at [18]. As I have also recorded at [20], the defendant acknowledges that none of the exceptions stated in paragraph (f) have present application.

121 However, the defendant relies upon one of the further exceptions to those forms of waste facility identified in Sch 1 to the Act as requiring a licence, being the exception identified in cl (3)(d1) under the item “Waste facilities”. That clause is as follows:

“(3) The following premises are not waste facilities for the purpose of this item:

…

(d1) premises (being premises in … the Sydney metropolitan area) on which any one or more of the following types of organic waste (and no other type of waste) is applied to land for agricultural … purposes:

122 The defendant acknowledges that in order to sustain its reliance upon cl (3)(d1), it is necessary to establish, on the balance of probabilities, that the constituents of the waste transported from Eastern Creek to Marylands can not only be categorised as “organic waste” and no other type of waste but also that it must be organic waste of the type identified in one or more of paragraphs (i) to (vii).

123 I will assume for the purpose of consideration that the liquid transported by the defendant is “organic waste”. Making this assumption, it is first necessary to ask whether a component of it is “garden waste”: cl (3)(d1)(i). The term “garden waste” is defined in Div 2 of Pt 3 of Sch 1. Relevantly, the term is defined to mean “branches, grass, leaves, plants, loppings, tree trunks, tree stumps and the like, and includes any mixture of those materials”. Clearly, the definition does not comprehend those materials in the form of a liquid such as that produced at the UR-3R Facility.

124 Paragraphs (ii) and (iii) of subclause (d1) each make reference to biosolids, categorised in a particular way by reference to the Biosolids Guidelines. The defendant placed considerable emphasis on these paragraphs as founding its submission that cl (3)(d1) was engaged. However, before considering any question of categorisation, it is first necessary to consider whether the liquid waste in question comprises “biosolids” in any form.

125 The word “biosolids” is also defined in Division 2 of Pt 3 of Sch 1. It is defined to mean -

“the organic product that results from sewage treatment processes (namely, the material referred to alternatively as sewage sludge)”.

126 The parenthetical limitation expressed in this definition is important. It will be recalled from my earlier recitation of the evidence that Mr Smith, called on behalf of the defendant, asserted that the treatment process at the UR-3R Facility involved, at least in principle, a process identical to that undertaken in the treatment of sewage. However, his evidence in cross-examination was that the liquid residue resulting from the UR-3R process was not sewage sludge (see [69]). The parenthetical limitation expressed in the definition of “biosolids” to which I have referred does, to my mind, render it imperative that the material in question be capable of identification as sewage sludge before that material can be categorised as “biosolids” for the purposes of the Act. So much is made clear by use of the adverb “namely” in the definition.

127 In final submissions the defendant recognised the difficulty which both the definition and the evidence of Mr Smith posed for it but sought to maintain its submission that paragraphs (ii) and (iii) were engaged because of the similarity of process from which the UR-3R waste liquid resulted. I do not agree. Unless one is able to identify the material as being sewage sludge, the material does not meet the definition of “biosolids” with the result that paragraphs (ii) and (iii) are not engaged.

128 In an endeavour further to address the difficulty with its submission that the liquid waste in question is or contains biosolids, when applying the statutory definition, the defendant sought to gain support from the provisions of the Biosolids Guidelines which were tendered in the proceedings (Exhibit 6). However, in my opinion, the Biosolids Guidelines do not assist the defendant. My reasons for so determining are as follows:

(i) those guidelines cannot be used to qualify the definition of “biosolids” contained in the Act, unless there is a provision in the Act itself enabling such a qualification to operate and there is no such provision;

(ii) the fact that reference is made in the Act to the categorisation of biosolids by reference to the Biosolids Guidelines does not provide any relevant qualification to the statutory definition of “biosolids”;

(iii) the Biosolids Guidelines are expressed to be limited “to the land application and disposal of biosolids derived from sewage treatment plants” (section 1.2): the liquid in question is not so derived;

(iv) the Glossary to the Biosolids Guidelines describes “biosolids” as being “(p)rimarily an organic solid product produced by the municipal sewage treatment process, previously referred to as sewage sludge”. The liquid transported by the defendant is neither produced by a municipal sewage treatment process, nor is it a substance previously known as sewage sludge. Moreover, it is not primarily a solid product.

129 The term “liquid food waste” referred to in (3)(d1)(iv) is also defined in Division 2 of Pt 3 of Sch 1 to the Act. It is defined to mean “food waste in liquid form, but does not include food waste to which liquid has been added.” The term “food waste” is, in turn, defined in the same Division to mean:

(i) the preparation or manufacturing of food (including beverages),

(ii) the processing of meat, poultry or fish, or

130 The combined effect of these two definitions is such that the liquid transported by the defendant does not engage paragraph (iv) of cl (3)(d1). It is not a liquid form of by-product of food manufacture, a by-product of, poultry or fish, nor is it food that is unwanted or not fit for purpose. Moreover, it is a substance to which liquid has been added, namely water or process water.

131 The defendant made no submission to the effect that the liquid transported by it was either “manure” or “treated grease trap waste from the preparation or manufacturing of food” within the meaning of paragraphs (v) and (vi) of cl 3(d1). Both “manure” and “treated grease trap waste” are defined in Division 2 of Pt 3 of Sch 1 of the Act. I am satisfied by reference to those definitions that they would be inapplicable to the liquid waste transported to Marylands by the defendant.

132 As I have determined that none of the types of “organic waste” identified in cl 3(d1) were present in the liquid transported by the defendant, either as an individual type or in combination with any other of the nominated types, it is unnecessary to determine whether my assumption that the liquid meets the description of “organic waste” (at [113]) is a correct assumption. By making that assumption I should not be taken to have determined that the liquid is “organic waste” as that term is defined in Div 2 of Pt 3 of Sch 1.

133 It follows from the prior discussion that cl (3)(d1) of the “Waste facilities” item in Sch 1 does not operate to remove Marlyand from that class of waste facility that is required to be licensed in accordance with the requirements of s 48 of the Act.

134 Apart from the combined operation of cll (1) and (3) to the “Waste facilities” item in Sch 1, the defendant places reliance upon provisions of the Guidelines which, according to its interpretation, cast doubt upon the need for Marylands to be licensed. According to the defendant, this doubt arises because of the manner in which the Guidelines categorise the liquid waste which it transported to Marylands. For reasons which I will shortly explain, it is unnecessary to consider further the defendants submissions in this regard.

135 In final submissions, the defendant conceded that the Guidelines “have little work to do in the statute or in the Schedule”. That is a correct concession. Nowhere does the Act contain a provision that gives general plenary effect to the Guidelines. Reference is made to the Guidelines in the Act, but only for specific purposes. By s 45(m) of the Act, a regulatory authority, other than the prosecutor, is required to take the Guidelines into consideration when exercising any function under Chapter 3 of the Act. That is the chapter of the Act which pertains to the issue of environment protection licences. The “appropriate regulatory authority” for the purpose of issuing a licence required by s 48 of the Act is the prosecutor: s 6(1). Thus, s 48(m) gives the Guidelines no work to do in the determination of a licence for waste facilities that constitute an activity identified in Sch 1.

136 For the description of specified components of an activity identified in Sch 1 or for the purpose of definitions contained in that Schedule, reference is made to the Guidelines. However, in each case, that reference is specific and the particular part or section of the Guidelines intended to be incorporated by reference is identified. By way of example, one of the classes of waste facility that is identified as requiring a licence is that identified in paragraph (1)(g) under the “waste facilities” item. It is a reference to landfill or application sites located in “an environmentally sensitive area described in Technical Appendix 8 of the Waste Guidelines”. That is typical of the specific reference made to the Guidelines in both Pt 1 and Pt 3 (interpretive provisions) of the Schedule. It is also to be noticed that the Guidelines were published prior to amendment of the Act in the year 2000 which amended some provisions of the Act to which the Guidelines refer as if they still reflected the law.

137 While acknowledging that the Guidelines “have little work to do” in the context of the Act, the defendant contends that they operate as the “practice manual” of the prosecutor. So understood, it is submitted that anyone in the position of the defendant would be informed by those Guidelines as to whether a given activity is lawful under the Act or whether a licence is required to sanction the carrying out of that activity.

138 Given that an offence under s 143(1) of the Act is a strict liability offence subject to a defence to which I will shortly advert, the state of mind of the defendant, however informed, cannot be material to determining whether the offence has been committed. The terms of the Guidelines and the defendant’s understanding of them could possibly be relevant to the imposition of sentence but cannot be relevant to the determination of guilt.

139 The defendant seeks to extend the ambiguity created by the perceived conflict between the Guidelines and the Act by submitting that such ambiguity and conflict should be resolved in its favour, resulting in its acquittal of the offences with which it is charged. In support of the submission it cites DC Pearce and RS Geddes, Statutory Interpretation in Australia, 6^th ed (2006), LexisNexis at [9.9]. The essence of the observations there made is best encapsulated in the judgment of Gibbs J in Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569 where his Honour said (at 576):

“The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences [citations omitted]. The rule is perhaps one of last resort.”

140 The intractable problem confronting the submission of the defendant in seeking to apply the rule identified by Gibbs J is that it requires the identification of ambiguity in the statutory provisions which create the offence. The defendant could not identify any such ambiguity (T 160 – 161) and for my part I am unable to discern any ambiguity among the various statutory provisions to be considered when determining whether an offence under s 143(1) of the Act has been committed. The rule cannot be invoked in favour of the defendant where there is no ambiguity or inconsistency internal to the Act itself but only between the Act and Guidelines published by the prosecutor which, other than in specific and identified respects, have no general statutory force. Significantly, no reference is made to the Guidelines in that class of waste facility identified in cl (1)(f) of the “waste facilities” item in Sch 1.

141 It follows, by operation of s 48 of the Act and Sch 1, that Marylands was required to be the subject of an environment protection licence in order to receive and dispose of the waste transported to it by the defendant. It was not excluded as a waste facility to which Sch 1 applied by operation of subclause (3) of the “waste facilities” item in the Schedule.

142 I have earlier referred to the class of waste facility that the prosecutor submits applies to Marylands, namely that class identified in cl (1)(f) of the classes described under the waste facilities item in Sch 1 to the Act. By reference to cl (1)(f), it is a “landfill or application site” within the Sydney metropolitan area. The definition of the phrase “landfill or application site” is set out at [19] above. For present purposes, it is necessary to determine by reference to that definition whether the “waste facility” at Marylands was one used for the purpose of disposing waste to land by injecting the liquid transported from the UR-3R Facility into that land.

143 No special meaning should be attributed to the word “purpose” as it is used in the definition of “landfill or application site”. It bears its ordinary meaning (Environment Protection Authority v Hardt [2006] NSWLEC 438; (2006) 148 LGERA 61 at [89]).

144 The evidence clearly establishes that it was the object or desired result (“purpose”) of the defendant’s action in transporting waste to Marylands to dispose of that liquid or waste by injecting it into the land. The fact that it was seen to be advantageous so to do by Maryalan is not to the point. Moreover, the fact that there may have been more than one “purpose” served by the soil injection of this liquid waste does not deny the existence of a purpose relevant to be considered when determining whether the statutory phrase “landfill or application site” is engaged (Environment Protection Authority v Hardt at [90]. Having regard to the evidence adduced before the Court, I have no doubt that the statutory phrase is so engaged.

145 The evidence establishes that during the first and second charge periods, some 200 loads of liquid waste were transported by the defendant to Marylands where it was injected into the soil. The transportation spreadsheet also establishes that other loads of liquid waste from the UR-3R Facility were transported by others to Marylands where that waste was injected into the soil by the defendant through its employees. The extent to which Marylands was used to dispose of waste by soil injection, both by reference to the volume of liquid waste received and the period over which this activity took place, clearly demonstrates that this was a purpose for which Marylands was used.

146 As a “waste facility” of class (1)(f) identified in Sch 1 to the Act, the lawful use of Marylands for disposing of liquid waste from the UR-3R Facility could only be sustained if an environment protection licence issued under s 48 was held and in force. The defendant concedes that no such licence was held.

147 I am therefore satisfied beyond reasonable doubt that during both the first and second charge periods, Marylands could not lawfully be used as a waste facility for liquid waste received from the UR-3R Facility at Eastern Creek.

Defence of honest and reasonable mistake

148 For completeness, I record that during the course of the hearing the defendant indicated that the offence under s 143(1) being an offence of strict liability, a defence “of honest and reasonable mistake” may be available to it (Proudman v Dayman (1941) 67 CLR 536 at 540; He Kaw Teh v The Queen (1985) 157 CLR 523). It seemed that at one point in the trial, its reliance upon the Guidelines may have been the basis for asserting such a defence. However, in final submissions, reliance upon such a defence was expressly disavowed by the defendant.

Conclusion: offence proven

149 For the reasons that I have indicated, I find beyond reasonable doubt that each of the elements of the offences under s 143(1) of the Act is proven. Accordingly, I find the defendant guilty of the offences with which it has been charged.

Orders

150 I make the following order:

Friday 10 September 2010

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10/09/2010 - change class (1)(g) to class (1)(f) in Sch 1 to the Act - Paragraph(s) Paragraph 146

13/09/2010 - (for the first charge period) - Paragraph(s) 89

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Citations

Environment Protection Authority v Shannongrove Pty Ltd [2010] NSWLEC 162

Most Recent Citation

Wakool Shire Council v Garrison Cattle Feeders Pty Ltd (No 2) [2011] NSWLEC 224

Cases Citing This Decision

5

Shannongrove Pty Ltd v Environment Protection Authority [2013] NSWCCA 179

Mouawad v The Hills Shire Council [2013] NSWLEC 165

Environment Protection Authority v Shannongrove Pty Ltd (No 2) [2012] NSWLEC 202

Cases Cited

6

Statutory Material Cited

6

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

Kirk v Industrial Court of New South Wales [2010] HCA 1

CITATION:	Environment Protection Authority v Shannongrove Pty Ltd [2010] NSWLEC 162 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	PROSECUTOR Environment Protection Authority DEFENDANT Shannongrove Pty Ltd
FILE NUMBER(S):	50033; 50034 of 2009
CORAM:	Craig J
KEY ISSUES:	ENVIRONMENTAL OFFENCES :- transportation of waste to a place that could not lawfully be used as a waste facility for that waste – liquid residue from municipal solid waste treatment facility – soil injection of transported liquid at farming property – liquid claimed to increase soil fertility – characterisation as ‘waste’ at source and not at disposition site – unwanted and surplus product of treatment facility – “waste” within the meaning of the Protection of Environment Operations Act 1997 ENVIRONMENTAL OFFENCES:- transportation of waste to a place that could not lawfully be used as a waste facility for that waste – soil injection at farm – frequency of process and volume of liquid injected – use of farm as a “waste facility” – liquid injected not a category of organic liquid waste identified in cl (3)(d1) of the “waste facilities” item in Sch 1 to the Protection of Environment Operations Act 1997 – farm required to be licensed as a “waste facility” – no licence held STATUTORY INTERPRETATION:- requirement for a licence as a “waste facility” to dispose of liquid waste – claimed inconsistency with Waste Guidelines published by prosecutor – Guidelines given no general statutory force – no ambiguity or inconsistency within legislation creating the offence – no doubt to be resolved in favour of defendant when determining whether offence committed
LEGISLATION CITED:	Environmental Protection Act 1990 (UK) Occupational Health and Safety Act 1983, ss 15, 16, 53 Protection of the Environment Operations Act 1997, ss 6, 45, 48, 115, 143, 144, Sch 1 Protection of the Environment Operations (Waste) Regulation 1996 Protection of the Environment Operations (Waste) Regulation 2005 Waste Minimisation and Management Act 1995
CASES CITED:	Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569 Environment Agency v Inglenorth Limited [2009] EWHC 670 (Admin) Environment Protection Authority v Hardt [2006] NSWLEC 438; (2006) 148 LGERA 61 Environment Protection Authority v HTT Huntley Heritage Pty Ltd [2003] NSWLEC 76; (2003) 125 LGERA 332 He Kaw Teh v The Queen (1985) 157 CLR 523 Kirk v Industrial Relations Commission of NSW [2010] HCA 1; (2010) 239 CLR 531 Owen v Willtara Constructions Pty Ltd [1998] NSWLEC 216; (1998) 103 LGERA 137 Proudman v Dayman (1941) 67 CLR 536
TEXTS CITED:	Biosolids Guidelines Environmental Guidelines: Assessment Classification and Management of Liquid and Non-Liquid Wastes DC Pearce and RS Geddes - Statutory Interpretion in Australia, 6th ed (2006) LexisNexis
DATES OF HEARING:	12,13,14 April 2010
DATE OF JUDGMENT:	7 September 2010
LEGAL REPRESENTATIVES:	PROSECUTOR T G Howard SOLICITORS Environment Protection Authority DEFENDANT P J McEwen SC with S M Berveling (barrister) SOLICITORS Bamford Associates Lawyers