Environment Protection Authority v Terrace Earthmoving Pty Ltd - [2013] NSWCCA 180

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Environment Protection Authority v Terrace Earthmoving Pty Ltd [2013] NSWCCA 180
Hearing dates: 16 May 2013
Decision date: 05 August 2013
Before: Basten ACJ at [1];
Hall J at [64];
Barr AJ at [65]
Decision:
The questions are answered and orders made in the following terms:
(1) Question:
6. Was it open on the facts found by me to hold that the definition of 'waste' in the Dictionary to the POEO Act had no application during the First Charge Period?
Answer:
On the proper construction of the Act, the definition of "waste" in the Dictionary had no application to an offence under s 143(1) prior to 1 May 2006, whilst "waste" was specially defined in s 143(4).
(2) Question:
5. Was it open on the facts found by me to hold that the 'transport' of waste within the meaning of section 143 of the POEO Act to a place did not include the deposition of that substance at the place?
Answer:
On the proper construction of the Act, "transport" of waste for the purposes of s 143(1) did not include depositing the substance at the place to which it was transported.
(3) Questions:
1. Was it open on the facts found by me to hold that in determining whether the substance was 'waste' within the meaning of section 143(4) of the POEO Act during the First Charge Period the factors relevant for consideration included:
(a) the nature of the substance;
(b) whether there was an identified demand for that substance;
(c) circumstances in which the substance was obtained or removed from its source;
(d) whether the substance was being transported to a place at which it was intended to be used for the purpose for which demand for the substance has been shown;
(e) the period of time that elapsed or was expected to elapse after the substance was transported to the place of its intended use before it was put to that use; and
(f) whether the substance was stockpiled at the place to which it had been transported?
3. In determining whether the substance was 'waste' within the meaning of section 143(4) of the POEO Act during the First Charge Period should I have held that the only factors for consideration were:
(a) the nature of the substance; and
(b) whether the substance was 'unwanted' or 'surplus' in the hands of the owner or generator of that substance?
8. Was it open on the facts found by me to conclude that the qualification expressed in the words "A substance is not precluded from being waste merely because it may be reprocessed, re-used or recycled" in Section 143(4) of the POEO Act was a limited one and did not change the determination that the substance transported by the First Respondent be 'unwanted' or 'surplus'…

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: [2013] NSWCCA 180
Decision Date: 05 August 2013

CaseChat Overview and Summary

The Environment Protection Authority brought proceedings against Terrace Earthmoving Pty Ltd for transporting waste to a location not lawfully used as a waste facility. The waste in question was demolition material transported from a building site to private property, where it was used as road-base. The trial judge was not satisfied that the material transported constituted "waste" as defined by the Protection of the Environment Operations Act 1997 (NSW), leading to questions of law being submitted to the court.

The court was required to determine the meaning of "waste" under the Act, particularly in the context of an offence relating to the transportation of waste. The definition of waste had been amended between the two periods in question, and the court needed to consider whether an objective assessment was required to determine if the material could be reprocessed or if the state of mind of the owner immediately prior to transport was determinative. The court also had to address whether the intentions of the transporter and recipient of the material were relevant to the classification of the material as waste.

The court found that the definition of waste in the Act must be considered as a whole, not in isolation of its constituent parts. The court held that the material in question did not constitute waste as it was not unwanted or surplus at the time of transportation. The court also found that the offence of transporting waste was not complete unless the material was deposited at the place, and the existence of a separate offence of allowing land to be used as a waste facility was relevant to determining the elements of the offence of transporting waste. The court ultimately found in favour of Terrace Earthmoving Pty Ltd, and the charges were dismissed.

The court made no orders for costs.

Orders