Environment Protection Authority v Terrace Earthmoving Pty Ltd
[2012] NSWLEC 216
•21 September 2012
Land and Environment Court
New South Wales
- Amendment notes
Medium Neutral Citation: Environment Protection Authority v Terrace Earthmoving Pty Ltd & Page [2012] NSWLEC 216 Hearing dates: 2-6, 9-13 August 2010 Decision date: 21 September 2012 Jurisdiction: Class 5 Before: Craig J Decision: 1. Stand over all proceedings to Friday 19 October 2012.
2. Unless by that date an application is made by the prosecutor to state a question of law for determination by the Court of Criminal Appeal pursuant to s 5AE of the Criminal Appeal Act 1912, verdicts of not guilty in all four matters will be entered on that day.
Catchwords: ENVIRONMENTAL OFFENCES - transport by corporation of waste to a place that could not lawfully be used as a waste facility for that waste - s 143(1) of the Protection of the Environment Operations Act 1997 - sole director of corporation charged with identical offences - s 169(1) of the Act - elements of the offence - transport of waste is anterior to deposition of waste - deposition of waste is not an element of the offence - continuous course of conduct but separate charges by reason of legislative amendment - relevant definition of "waste" during different charge periods - selected material from demolition sites together with selected soil and rock from excavation of sites used to construct an internal farm road - transported materials not "waste" within the meaning of the Act - considerations relevant to the determination of material as being "waste" - commission of offence not established beyond reasonable doubt Legislation Cited: Criminal Appeal Act 1912
Interpretation Act 1987
Protection of the Environment Operations Act 1997
Rural Fires Act 1997
Waste Avoidance and Resource Recovery Act 2001Cases Cited: Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249
Dowling v Bowie [1952] HCA 63; (1952) 86 CLR 136
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] HCA 43; (1985) 157 CLR 523
House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498
Owen v Willtara Construction Pty Ltd (1998) 103 LGERA 137
Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
Woolmington v DPP [1935] UKHL 1; [1935] AC 462Category: Principal judgment Parties: Environment Protection Authority (Prosecutor)
Environment Protection Authority (Prosecutor)
Terrace Earthmoving Pty Ltd (Defendant)
Geoffrey James Page (Defendant)Representation: S T Flood (Prosecutor)
T G Howard (Defendant)
Gordon Plath, Department of Environment, Climate Change and Water (Prosecutor)
Mallik Rees Lawyers (Defendant)
File Number(s): 50042-3 of 2009 50044-5 of 2009
Judgment
Land known as 168 Cabbage Tree Road, Williamtown is a rural/residential allotment having an area of about 20.3 hectares. It is a long narrow allotment with a frontage of about 142m to the northern side of Cabbage Tree Road and a side boundary length of about 1427.5m. The legal description of the land is Lot 132 in Deposited Plan 609165 (Lot 132).
Mario Ciccanti, together with this wife, commenced to reside on Lot 132 early in 2002. The dwelling in which they reside is erected close to the road frontage, as were some ancillary buildings. While Lot 132 is described as generally being flat, both the front and rear sections are at levels that are higher than the central section of the land. The low lying central section was for periods throughout the year, particularly during the winter months, boggy and generally impassable by conventional motor vehicles and trucks. It is also an area on Lot 132 that has a significant tree cover.
When Mr and Mrs Ciccanti moved to Lot 132, they had no experience of rural life. Shortly after taking occupation, they purchased a number of cows to graze on the land. Within a short space of time their livestock disappeared. In the course of investigating their disappearance, they came to appreciate that they could not readily gain access through the central section of Lot 132 for the purpose of checking and repairing boundary fences around the more elevated northern section of their property.
They also experienced bushfires both on and adjacent to Lot 132. Fire fighting vehicles were not able to traverse the wet and boggy central section in order to gain access to the rear of the property.
All of these events caused Mr Ciccanti to propose the construction of an internal access road adjacent to the eastern boundary of the property in order to provide access from the higher ground at the southern end to the higher ground on the northern section of the property. To this end, he engaged the services of the defendant, Terrace Earthmoving Pty Ltd (Terrace).
The various business activities conducted by Terrace included earthmoving, land excavations, land clearing and building demolition. Terrace had also undertaken road construction, including the construction of internal farm roads in the Cabbage Tree Road area of Williamtown. Geoffrey Page was at all relevant times the sole director of Terrace. As a consequence of agreement reached between Mr Ciccanti and Mr Page, on behalf of Terrace, the construction of the internal access road proposed by Mr Ciccanti commenced late in November 2005. That construction work continued until 1 March 2007.
The process of road construction generally involved excavation along its proposed path to a depth of 600mm to 800mm and then placement of fill into the excavation sufficient to achieve a road level after compaction that had a surface about 800mm above the surrounding ground level. The excavated material was used as a form of road batter.
The fill material used for road construction was obtained from sites at which Terrace was carrying out demolition or excavation works. Demolition or excavated material was taken from those sites and transported to Lot 132 in trucks belonging to Terrace. The material utilised generally comprised broken concrete, bricks, tiles, soil and rock. There is conjecture as to whether other materials were included within the matrix of material that I have described.
As a consequence of Terrace's transportation of these materials and their use for road construction on Lot 132, Terrace has been charged with two offences against s 143(1)(a) of the Protection of the Environment Operations Act 1997 (the POEO Act). As the sole director of Terrace at the time at which these activities were undertaken, Mr Page has also been charged with the identical offences pursuant to s 169 of the POEO Act.
Each of Terrace and Mr Page have pleaded not guilty to the charges brought against them. A trial having been held, it is necessary to determine whether each charge is proven to the requisite criminal standard.
The charges
Each of the four charges has been brought by summons, amended by leave during the course of the hearing. It is convenient to identify each by reference to the proceedings number in the Court.
In proceedings 50042 of 2009, Terrace is charged:
"that, from about 23 November 2005 to 30 April 2006 inclusive, at or near Williamtown, in the State of New South Wales, it committed an offence against section 143(1)(a) 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:
Material comprising demolition waste including concrete, metal, bricks, plastic and soil and asbestos.
b. Transport:
By truck
c. Place:
At or near Lot 132 DP 609165 being 168 Cabbage Tree Road, Williamtown, in the State of New South Wales (the "premises").
d. Nature of unlawfulness:
(i) the Place required development consent to receive the waste; and/or
(ii) the Place required an Environment Protection Licence to receive the waste.
e. 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 Danielle Marie Playford on or about 14 March 2007."
In proceedings 50043 of 2009 Terrace is charged:
"that, from about 1 May 2006 to 1 March 2007 inclusive, at or near Williamtown, in the State of New South Wales, it committed an offence against s 143(1)(a) of the Protection of the Environment Operations Act 1997 in that it caused waste to be transported to a place that could not lawfully be used as a waste facility for that waste."
The particulars given for that charge are identical to those given in respect of the charge in proceedings number 50042 of 2009.
In proceedings 50044 of 2009, Mr Page is charged:
"that from about 23 November 2005 to 30 April 2006 inclusive, at or near Williamtown, in the State of New South Wales, he committed an offence against s 143(1)(a) of the Protection of the Environment Operations Act 1997 (the "Act") by reason of s 169(1) of the Act in that:
a. He was the director of Terrace Earthmoving Pty Limited (ACN: 004 0050547) (the "Corporation"); and
b. The Corporation transported waste to a place that could not lawfully be used as a waste facility for that waste."
The particulars provided for that charge are identical to the particulars provided for the two charges brought against Terrace.
In proceedings 50045 of 2009 Mr Page is charged in terms similar to those framed in proceedings 50044 of 2009, except that the period charged is from about 1 May 2006 to 1 March 2007 inclusive. Again, the particulars of that charge are identical to those previously identified.
Two charges against each defendant: a continuous course of conduct
As will have been noticed, the terms in which the two charges against Terrace have been brought are, in essence, the same save for the dates identified in each charge. A similar observation will have been made in respect of the charges brought against Mr Page. The prosecutor has explained that separate charges have been brought because s 143 of the POEO Act was amended with effect from 1 May 2006.
As will shortly be apparent, although the terms in which an offence arising under s 143(1)(a) did not change in any material way after 30 April 2006, 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 $1M. Secondly, subsection (4) of s 143 which contained a definition of "waste" was deleted by the amendment which took effect on 1 May 2006. The amending legislation also had the consequence that the definition of "waste" contained in the Dictionary to the POEO Act was amended.
The offence provisions
Prior to 1 May 2006, s 143 of the POEO Act relevantly provided as follows:
"143 Unlawful transporting of waste
(1) Offence
If a person transports waste to a place that cannot lawfully be used as a waste facility for that waste:
(a) the person, and
(b) if the person is not the owner of the waste, the owner,
are each guilty of an offence.
Maximum penalty:
- in the case of a corporation-$250,000, or
- in the case of an individual-$120,000.
(2) Proof of lawfulness
In any proceedings for an offence under this section the defendant bears the onus of proving that the place to which the waste was transported can lawfully be used as a waste facility for that waste.
...
(3C) Defence-waste not deposited
It is a defence in any proceedings for an offence under this section if the defendant establishes that the waste transported by the defendant was not deposited by the defendant or any other person at the place to which it was transported.
(4) Definitions
In this section:
...
waste includes any unwanted or surplus substance (whether solid, liquid or gaseous). A substance is not precluded from being waste merely because it may be reprocessed, re-used or recycled."
Prior to 1 May 2006, s 169 of the POEO Act relevantly provided:
"169 Offences by corporations
(1) If a corporation contravenes, whether by act or omission, any provisions of this Act or the regulations, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision, unless the person satisfies the court that:
(a) the corporation contravened the provision without the knowledge actual, imputed or constructive of the person, or
(b) the person was not in a position to influence the conduct of the corporation in relation to its contravention of the provisions, or
(c) the person, if in such a position, used all due diligence to prevent the contravention by the corporation.
(2) A person may be proceeded against and convicted under a provision pursuant to this section whether or not the corporation has been proceeded against or been convicted under that provision.
(3) Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation against this Act or the regulations.
(4) Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular intention, is evidence that the corporation had that intention."
From 1 May 2006, s 143 of the POEO Act relevantly provided:
"143 Unlawful transporting or depositing of waste
(1) Offence
If a person transports waste to a place that cannot lawfully be used as a waste facility for that waste, or causes or permits waste to be so transported:
(a) the person, and
(b) if the person is not the owner of the waste, the owner,
are each guilty of an offence.
Maximum penalty:
(a) in the case of a corporation-$1,000,000, or
(b) in the case of an individual-$250,000.
... ".
Subsections (2) and (3C) as they were contained in the section prior to May 2006 were not altered. However, the definition of "waste" in subsection (4) of that section was omitted.
There is an issue between the prosecutor and the defendant as to whether the definition of "waste" contained in s 143(4) of the POEO Act, prior to its amendment on 1 May 2006, was the sole definition to which reference should be made when determining whether the material transported to Lot 132 prior to 1 May was waste. It is therefore necessary to quote the definition of "waste" as it appeared in the Dictionary to the POEO Act prior to 1 May 2006. That definition was:
Dictionary
In this Act:
" ...
waste (unless specially defined) includes:
(a) any substance (whether solid, liquid or gaseous) that is discharged, emitted or deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment, or
(b) any discarded, rejected, unwanted, surplus or abandoned substance, or
(c) any otherwise discarded, rejected, unwanted, surplus or abandoned substance intended for sale or for recycling, reprocessing, recovery or purification by a separate operation from that which produced a substance, or
(d) any substance prescribed by the regulations to be waste for the purposes of this Act.
A substance is not precluded from being waste for the purposes of this Act merely because it can be reprocessed, re-used or recycled."
Following the amendment to the POEO Act on 1 May 2006, the definition of "waste" in the Dictionary provided:
"waste includes:
(a) any substance (whether solid, liquid or gaseous) that is discharged, emitted or deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment, or
(b) any discarded, rejected, unwanted, surplus or abandoned substance, or
(c) any otherwise discarded, rejected, unwanted, surplus or abandoned substance intended for sale or for recycling, processing, recovery or purification by a separate operation from that which produced a substance, or
(d) any processed, recycled, re-used or recovered substance produced wholly or partly from waste that is applied to land, or used as fuel but only in circumstances prescribed by the regulations, or
(e) any substance prescribed by the regulations to be 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."
In the amended summons for all four charges, the prosecutor provided particulars beyond those that I have earlier quoted. The additional particulars in each summons was in the following terms:
"For the purpose of subsection (a) of the definition of 'waste' found in the Dictionary to the Protection of the Environment Operations Act 1997:
The prosecutor provides the following particulars:
1. the substances are solid materials comprising overburden, soil and stone, woodchips and demolition material including concrete, metal, bricks, mortar, plastic, soil, piping, clay piping, tiles, wood, asphalt, coal tar, ceramic and asbestos.
2. the volume of material is at least 150 tonnes for the period 23 November 2005 to 30 April 2006 and 532 tonnes for the period 1 May 2006 to 1 March 2007.
3. the manner in which the material was deposited is that it was tipped on top of the surface from the back of tip trucks and/or it was placed into an excavated hole (the excavated material having been placed in the area surrounding the hole or with the previously deposited material) of approximately 80cm in depth from the back of tip trucks, having been transported to the premises from another place.
4. the alteration to the environment includes the smothering of flora and fauna (such as macro-invertebrates), damage to flora including trees, alteration to habitat of flora and fauna, alteration to species composition of flora and fauna, alteration to the availability of sunlight, alteration to soil, displacement of water, alteration to water flow at both a surface and subsurface level, alteration at ground level and alteration to access to the area for vehicles, flora and fauna."
In the context of the charges brought against Mr Page, there were amendments made to s 169 of the POEO Act by the amending legislation that took effect on 1 May 2006. In its amended form, the section relevantly provided:
"169 Offences by corporations
(1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision, unless the person satisfies the court that:
(a) (repealed)
(b) the person was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or
(c) the person, if in such a position, used all due diligence to prevent the contravention by the corporation.
... ".
I do not recite the further amended subsections of s 169 as nothing for present purposes, turns upon those amendments. Mr Page accepts that for all relevant purposes to the charges against him, the substance of s 169(1) remained the same for the entire period to which both charges relate.
In relation to all four charges, it is convenient to refer to the period from 23 November 2005 to 30 April 2006 as "the first charge period". The period from 1 May 2006 to 1 March 2007 will be referred to as "the second charge period".
Elements of the offences charged and burden of proof
The elements of the offence charged under s 143(1)(a) during the first charge period are, to my mind:
(i) that Terrace transported a substance to a place;
(ii) the substance so transported was "waste" within the meaning of the POEO Act; and
(iii) the place to which the waste was transported could not lawfully be used as a "waste facility", within the meaning of the Act, for that waste. Lawful authority for use of that place was required.
The same elements applied to the charge under s 143(1)(a) for the second charge period save that in respect of the first element, it required that Terrace caused the substance to be transported to a place.
The prosecutor accepts that it bears the onus of proof beyond reasonable doubt of the first two elements of the offences charged. There is an issue between the prosecutor and the defendants as to the onus applicable to the third element. The prosecutor contends that, by operation of s 143(2), the onus is entirely upon the defendants. For their part, it is submitted on behalf of the defendants that the prosecutor bears the onus of proving beyond reasonable doubt that lawful authority was required to use Lot 132 as a waste facility but once that onus has been discharged, it is then for the defendants to prove, on the balance of probabilities, that there was such lawful authority in place. I will address this debate in due course.
The elements of the offence brought against Mr Page pursuant to s 169 are the same as those identified in respect of the offences brought against Terrace under s 143(1) with the additional element involving proof that Mr Page is a director of Terrace. The prosecutor accepts that it bears the requisite onus of proof in respect of this fourth element.
The position of the parties as to onus in respect of the first three elements is, as I have already indicated. For the purpose of these proceedings, it is admitted by Mr Page that during both charge periods, he was the sole director of Terrace Earthmoving Pty Limited.
The offences with which each of Terrace and Mr Page are charged are offences of strict liability, subject to the specific statutory defences available under ss 143 and 169 of the POEO Act, the onus of proving which rests on each defendant. Neither defendant has relied upon any statutory defence, nor have either of them relied upon the common law defence of honest and reasonable mistake (Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536; He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523 at 533 and 591).
The evidence
I have already given a general description of the dimensions of Lot 132 and its area. Approximately one third of the land area that has frontage to Cabbage Tree Road is generally cleared, with only scattered trees. The central third of the Lot is the lowest lying area with substantial tree cover, generally of a species that are tolerant of wet soil and low level water inundation. The rear third of the Lot is also vegetated, said to be regrowth, with a number of trees but not to the density of the central section. Although the proportions differ, this pattern of cleared and vegetated areas, including low lying wet areas, exists in respect of the number of nearby properties having frontage to Cabbage Tree Road in this rural/residential area.
The allotment located to the west of Lot 132, known as 178 Cabbage Tree Road was, for many years, owned by the Sanson family. That family had also owned 168 Cabbage Tree Road. Number 178 is now owned by Port Stephens Shire Council (the Council). To the north of the Council's land and to the north-west of Lot 132 is a relatively large parcel of land said to be owned by the Hunter Water Board. The northern boundary of Lot 132 shares a common boundary with land that forms part of the Williamtown Airport and RAAF Base. Adjoining Lot 132 to the east are two lots that have an aggregate depth approximating that of the Lot. The land that has frontage to Cabbage Tree Road is land owned by Peter Matthews. It is the lot owned by Peter Matthews that has greater significance to this case.
The structural improvements erected on Lot 132 include the dwelling in which Mr and Mrs Ciccanti reside, together with a storage shed and two garages. All of these improvements are in close proximity to Cabbage Tree Road. The area surrounding these improvements is described as a "large grassy area" which extends for about 300m to the north before the tree line that I have earlier described commences. An excavated drain runs across Lot 132 about 100m north of the location of the existing dwelling.
The internal access road from Cabbage Tree Road to the dwelling on Lot 132 is located to the west of the eastern boundary. However, once that road passes by the dwelling, it veers back towards the east and then extends for some distance along and generally parallel to the eastern boundary. It will be necessary to return to a description of this road later in this judgment.
An internal access road is required by Mr and Mrs Ciccanti
Lot 132 was acquired in the name of Mrs Ciccanti in December 2001. However, Mr and Mrs Ciccanti, together with their children, did not move to reside on the property until about March 2002. Until that time they had resided in a suburb of Newcastle and had not previously had any rural experience either in farming, raising livestock or managing a property of some 20 hectares. Mr Ciccanti had said that his lack of familiarity with land of this size and area caused him to underestimate the physical extent of Lot 132. He had assumed that its northern boundary was generally along the tree line that he had observed, some 300m to the north of the house.
Shortly after acquiring Lot 132, Mr and Mrs Ciccanti purchased some cows "to keep the grass down near the house". Within a short time the cows "disappeared". Concerned that his fencing may be inadequate, he drove his car into the trees located in the central section of the Lot but became bogged and could not move further. He was unable to identify any fence that marked the rear boundary. It was not until some weeks later when he was able to use a motorbike to negotiate the full length of the Lot that he was able to discover the rear fence, although not the missing cattle. The experience indicated to him that the central section of the site could not readily be traversed by an ordinary motor vehicle.
Subsequently, Mr Ciccanti placed sand along an old road or track leading into the low lying and boggy central section of the property in an attempt to improve access to the rear. That exercise proved unsuccessful in allowing vehicular access through that area.
At some time during 2004, a fire broke out on the Water Board land located to the north-west of Lot 132. That fire spread onto Lot 132 and extended to grass or paddock fires in the area between the house of Mr and Mrs Ciccanti and the tree line that I have earlier identified. Fire Brigade vehicles attended the site but were unable to gain access into the central section of the site because of the boggy conditions. Further, Mr and Mrs Ciccanti were unable to gain access to the cattle that were then grazing in the northern section of the Lot. As Fire Brigade vehicles were unable to gain access properly to contain the fire, it was eventually extinguished by aerial water bombing.
Mr Ciccanti described that event as "a very scary day and a very close call". Because of his fears, he spoke to Fire Brigade officers who, as he understood it, told him that he had responsibility for fire hazards on his property and that in order to address those hazards, he should undertake some controlled burning during winter months.
During the winter of 2005, Mr Ciccanti sought to give effect to the suggestions made to him by these officers. He gathered up loose timber on his property, made a number of separate piles of timber and then commenced to set them alight. Unfortunately, the fire that resulted burned out of control, extending into woodland and also posing a potential threat to his dwelling. The Fire Brigade was again called and seven fire crews attended. Once again, access could not be gained to control the fire in the central and northern sections of the Lot, with one fire fighting vehicle becoming bogged in the central section of the property, requiring rapid removal by Mr Ciccanti who was required to tow it out by the use of his tractor.
Following this second fire event, Mr Cicannti had further discussions with fire control officers. He was advised to provide an access road through the central section of the property, sufficient to accommodate a fire fighting vehicle. He was also advised that if such a road or track was provided, the fire service would assist him in conducting a controlled burn off.
Having recognised the need for a sufficient access road or trail to provide access through the low lying section of Lot 132, Mr Ciccanti attended the offices of the Council. He there indicated to an unnamed person that he wished to construct a road within his property in order to facilitate fire fighting. After that person appeared to consult a map and some other person or persons, he was directed by that person to speak to the local Fire Brigade. When he took that course, he was, in turn, referred to the local offices of the Rural Fire Service in Raymond Terrace.
He recalls speaking with a lady named Tammy Snowden together with two other people whose names he does not recall. He indicated the location of his property and the fact that he needed to provide an access road through the boggy area of his property so that he could get to the back of it. He indicated that his concern was fire mitigation in providing that access and that he wished to know "how I would go about it". Mr Ciccanti recalls sitting in front of a computer with Tammy Snowden and the two other people at the Rural Fire Service, apparently identifying by a map the location of Lot 132 and its environs.
On 18 November 2005 a form of application for the issue of a Bush Fire Hazard Reduction Certificate (the Certificate) was signed by Mr Ciccanti in relation to Lot 132. It is likely that he was given this form on the day upon which he first visited the Rural Fire Service and had the discussion with Tammy Snowden. Mr Ciccanti's application is recorded as having been received by the Rural Fire Service on 21 November 2005. The application form indicates that the assets to be protected by the proposed activity would be boundary fences, livestock and airport outbuildings. The method of reducing fuel was proposed to be undertaken by brush cutting, "slashing/trittering", "ploughing/grading", "tree removal/pruning" and "windrow burning". The length of land along which this activity was proposed is described as "fence line of property" with a width of 6m being indicated.
On or prior to 23 November 2005, Lot 132 was inspected by Peter Murphy, the development control officer employed by the Rural Fire Service. In November 2005 his role with the Rural Fire Service was as a Fire Mitigation Officer. That role entailed inspection of bushfire hazard complaints and the issuing of Bushfire Hazard Reduction Certificates together with Bushfire Safety Permits under the provisions of the Rural Fires Act 1997.
At the time of Mr Murphy's inspection of Lot 132, Mr Ciccanti was present. Mr Murphy stated in cross-examination that he did not have any recollection of what happened on the Lot at the time of his inspection. For his part, Mr Ciccanti recalls taking Mr Murphy around the Lot on a quad bike. He recalls showing Mr Murphy two access roads that ran northerly towards the central section of Lot 132. The first was a road that he described as running through "the middle of Lot 132 from the house and eventually runs near the western boundary past the tree line".
The other road that he said was shown to Mr Murphy was one that he described as being overgrown and which "ran along the eastern boundary of Lot 132 from entrance [sic] to Lot 132". That road was not sealed but is described as an area where the ground "had been packed down". Mr Ciccanti indicates that it was a road or track along which a tractor could be driven in wet weather "but there was always a risk that it might become bogged."
Mr Ciccanti states that he identified to Mr Murphy the area in which he proposed to construct a fire access road, being generally along the line of the existing road or track along the eastern boundary. He states that Mr Murphy identified to him vegetation that he needed to clear. According to Mr Ciccanti, he was advised at the time by Mr Murphy that clearing could take place for up to 6m from all fence lines.
In his affidavit evidence, Mr Murphy recalled an access road on the western side of Lot 132. However, in that evidence, he indicated no recall of Mr Ciccanti indicating a proposal to construct a road that provided access from the cleared southern section of Lot 132 to its northern end. Mr Murphy states that had road construction been raised with him, he would have advised Mr Ciccanti to make enquiries at the Council, as the construction of roads or tracks were not something that could be approved by the Rural Fire Service by issuing a Certificate.
As I have earlier recorded, Mr Murphy acknowledged in cross-examination that he had no recollection of what occurred when he inspected Lot 132 in November 2005. His focus was clearly upon bush fire hazard reduction. Mr Ciccanti acknowledges that discussion then had with Mr Murphy was focused upon the measures appropriate to reduce bush fire hazard on Lot 132, which included the escape of fire onto adjoining properties, including the Williamtown Airport and RAAF Base. However, given that Mr Ciccanti had instigated his enquiries on the basis that some form of access road or track was necessary to accommodate vehicular access through the central "boggy" area of Lot 132, I am satisfied that the proposal to construct or at least upgrade the existing road or track along the eastern boundary of Lot 132 was raised with Mr Murphy.
Having regard to the circumstances that it was the proposal to construct an internal road that first prompted Mr Ciccanti to approach the Council, Fire Brigade and then the Rural Fire Service, it is improbable that it was not raised with Mr Murphy at the time of his visit to Lot 132. Mr Ciccanti' purpose in approaching those authorities was repeated by him when interviewed by investigators of the prosecutor in December 2007. It is likely that because of the focus had by Mr Murphy upon measures to reduce bush fire hazard, any discussion of an access track or road within a cleared area approximating a 6m width from a boundary, did not impinge itself upon his recollection. Particularly is this so as Mr Ciccanti acknowledges that the manner in which and materials with which the access track or road was to be constructed were not matters discussed with Mr Murphy.
Either at the time of or immediately following his inspection of Lot 132, Mr Murphy completed a form identified as a "Hazard Reduction Certificate Assessment Check Sheet". One of the questions required to be addressed in that check sheet was whether the work proposed was "genuinely required for hazard reduction". The box marked "yes" was ticked by him in response to that question, followed by the following hand written detail:
"Create 6m APZ to prevent wildfire from spreading onto airport - RAAF Base."
The letters "APZ" are understood to be a reference to an "asset protection zone".
On 23 November 2005 Mr Murphy forwarded a letter to Mr Ciccanti enclosing the Certificate issued that day. Mr Murphy had signed the Certificate. The Certificate was issued:
"For works to be carried out at: Lot 132 DP 609165 168 Cabbage Tree Road Williamtown for the purpose of "land management" using the following method of hazard reduction works:
- Mechanical - hand clearing/mowing/slashing, of width 6m and length 1410m
- Removal of three trees.
The size of the area to be treated is: 0.846(ha)
(or in accordance with the attached map if supplied)
This Certificate shall be effective from 23-Nov-2005 and expires on 22-Nov-2006.
This Certificate provides authority to carry out bushfire hazard reduction work on the land described above in accordance with
- the Port Stephens Bush Fire Risk Management Plan;
- the Bush Fire Environmental Assessment Code July 2003; and
- the conditions specified overleaf."
It is unnecessary for present purposes to refer to the conditions to which the first page of the Certificate refers. However, the letter enclosing the Certificate also enclosed a cadastral map showing a section of Cabbage Tree Road in and around Lot 132 and also enclosed a poor black and white extract of an aerial photograph which showed part of Lot 132 as well as land adjoining to the north, east and west. A white line has been marked along the northern parts of the western and eastern boundaries of the Lot, with its northern extremity of that line being along the northern boundary of the Lot while the southern extremity of that white line appears to approximate the northern edge of what I have called the low lying central section of the Lot.
In giving his evidence, Mr Murphy explained that the area outlined in white on the aerial photograph was the "area of operation". No such description appears on the face of the Certificate although, as I have recorded, the Certificate not only identifies the area to which it relates as being 0.846 hectares but also refers to "the attached map if supplied". Mr Murphy also explained that the area so outlined was intended to be the area to which the Certificate related and its perimeter was measured electronically as having an aggregate length of 1410m. The cadastral map that was enclosed with the Certificate did not identify any such limitation.
For his part, Mr Ciccanti acknowledged that the road he proposed to have constructed was not within the area in white on the aerial photograph. His stated purpose was to provide vehicular access to that area to permit bushfire mitigation measures to be undertaken in accordance with the Certificate. It would also give access to vehicles for fire fighting and also give him access for fence mending and better control of any livestock on his land.
Terrace is engaged to construct a road
Having obtained the Certificate from the Rural Fire Service, Mr Ciccanti enquired of the neighbours as to the identity of someone who might provide the access road or track that he required. A neighbour of Mr Ciccanti recommended that Mr Page of Terrace Earthmoving Pty Limited be contacted as that company had recently completed a road on a neighbouring property. Mr Cicannti took that recommendation, contacted Mr Page who attended Lot 132 and discussed road construction with Mr Ciccanti. The Certificate received from the Rural Fire Service was shown to Mr Page. This was done in the context of Mr Cicannti indicating that he wanted to build the road or track for fire mitigation giving access to the back of his property. Mr Page is said to have indicated that if it is a fire related access road then the "Fire Service" would have the last word on the construction of that road.
Mr Ciccanti showed Mr Page where he wished to have the road constructed adjacent to the eastern boundary of Lot 132. He asked that when the construction was undertaken, no trees be removed. Mr Page responded by indicating that bricks, tiles and concrete would be needed as the source of road base because if sand only was used, any vehicle traversing the road would sink. Mr Ciccanti accepted that as being the case. Mr Page also explained that the material would need to be built up along the line of the road before being packed down.
When discussing the proposed road, Mr Ciccanti gave evidence that Mr Page said to him, "I have bricks and concrete I could use. I need to get rid of it anyway." Mr Ciccanti responded "obviously its not a free for all. I don't want you bringing anything else here and I want to be there when you do the tipping. I don't want any wood and I don't want anything other than bricks and concrete. I don't want any rubbish, like plastic, or any trees or wood."
Mr Ciccanti showed Mr Page where, along the eastern boundary, the upgraded track or road was to be located. Generally, it was indicated that the work should involve the upgrading and extension of the existing eastern access road along the eastern boundary. Work was to commence in the vicinity of where the drainage line, earlier described, crossed Lot 132.
There was no written agreement for this work. It is common ground between Mr Ciccanti and Mr Page, on behalf of Terrace, that materials of the kind earlier described, namely brick, broken concrete and perhaps tiles from other sites would be brought to Lot 132 for the purpose of providing a solid road base. While Mr Ciccanti was not required to make any payment to Terrace for this work, he did pay for the acquisition and installation of a pipe located in the drainage line across his land over which the reconstructed road passed.
Observations of Mr Ciccanti
The evidence of Mr Ciccanti was given both in written and oral form. The written evidence took the form of a record of interview conducted with investigators employed by the prosecutor and which took place on 18 December 2007. Mr Ciccanti also swore an affidavit on 25 July 2009 that was read in the proceedings and he was called to be cross-examined at the hearing. What follows, seeks to draw that evidence together.
Following the agreement which Mr Ciccanti reached with Mr Page and to which I have earlier referred, work was commenced by Terrace to build or upgrade the existing access road or track close to the eastern boundary of Lot 132. The time at which this work commenced is not identified. Trucks which Mr Ciccanti observed to be trucks belonging to Terrace commenced to deliver material and tip it in the location of the existing road or track. After the pipe was placed in the drainage line to which I have earlier made reference, road construction proceeded in a northerly direction. It took place over the top of the existing road. At a point that was a short distance to the north of the road crossing the draining line, Mr Ciccanti observed that a section of the road was excavated before hard material was tipped into the excavated area and then pushed down. An excavator was used for both purposes, that excavator being operated either by Mr Page, his brother Kelvin or his son Phillip.
Mr Ciccanti observed that when an excavated section of the road had been dug, water was sometimes observed in the base of that excavation, particularly following rain. He also observed bricks and concrete being tipped into the excavated area, with the excavator then used to spread the material over the width of the excavation. A truck was then used to compact the material by driving it backwards and forwards over the section that had been filled.
The delivery of material for the road and sequential excavation for receipt of that material was intermittent rather than constant. A section would be excavated and then material delivered in order to fill the excavated section.
Given what he regarded to be the slow rate of progress, on one occasion Mr Ciccanti voiced his concern to Mr Page that construction of the road was not progressing quickly enough. He reminded Mr Page that the Fire Mitigation Certificate that had been obtained was good for a year only and remarked to Mr Page that "you're going pretty slow". Mr Cicannti was concerned that he would need an extension of time to comply with the Certificate. Mr Page is said to have responded by indicating that he was required to be selective in the material that he used for the road as it had to be solid enough for a vehicle to drive over it.
Mr Ciccanti also observed that, on occasions, the road seemed to be too high and, in part, too wide. In response to that observation, Mr Page replied by indicating that if, when finished, the road remained too high then it would be scraped down. As was acknowledged by Mr Ciccanti, Mr Page had lowered the initial road height both by the use of trucks compacting the road and by scraping off the surface. This scraping was undertaken by use of an attachment fixed to the excavator being deployed by Mr Page or another Terrace employee working at the time.
At one point, the line of the road being constructed diverged from the line of the existing road or track. This divergence was made at the request of Mr Ciccanti in order to avoid damage to trees.
As the road proceeded in a northerly direction, it entered the tree line marking the commencement of the central section of Lot 132. According to Mr Ciccanti, the line of road being constructed followed an existing path or track in that area. It was a path capable of taking pedestrian traffic but was said to be too boggy to take a motor vehicle.
Mr Ciccanti observed the road as it was being constructed in this treed area. He considered the path over which the road was being constructed to be wide enough to accommodate the construction without necessitating the removal of any trees. Although, on occasion, he observed the bucket of the excavator being operated by Mr Page to hit a tree "by accident", Mr Ciccanti was not aware of any tree being damaged or removed by this construction work.
He acknowledged that the road constructed in this area was wider than the original path. He also acknowledged that tree branches had overhung the original path. However, he was unable to indicate whether he observed any tree branches having been removed by construction activities and maintained, based on his familiarity with the area, that no tree loss had occurred by reason of that construction. He stated that broken or damaged branches or trees were found throughout the area prior to road construction. He had, from time to time, gathered broken branches or trees together into windrows.
Delivery of material to Lot 132 for construction of the road was usually made late in the afternoon. He attributed this circumstance to the fact that both Mr Page and his brother, Kelvin, lived nearby. While Mr Ciccanti worked away from Lot 132, he was home when many deliveries were made. Apart from the afternoon deliveries, Mr Ciccanti observed deliveries were made by Mr Page, as well as by Kelvin Page and Phillip Page.
When present at the time of delivery of materials, Mr Ciccanti would invariably speak to the driver or excavator operator and observe the material being delivered. He only ever observed bricks and broken concrete in this material.
Mr Ciccanti is trained as an electronics technician and has worked in that capacity for a number of years. In carrying out his functions as such, he claims familiarity with various forms of asbestos in building materials. Based on his familiarity with those materials, he stated that he had not ever observed any load being delivered at Lot 132 to contain asbestos.
Mr Ciccanti stated that the eaves of two of the outbuildings on Lot 132 were lined with asbestos sheeting. He had observed that sheeting to be broken on one occasion when it was fractured by a ball being used by his children to play a game. He recalled collecting some broken pieces from the ground, wrapping them and disposing of them from the site.
He also had an understanding that asbestos wall sheeting had been used on buildings located on Lot 132. While this wall sheeting had been removed, his understanding was that the former owner of the Lot had buried that sheeting somewhere on the land.
Evidence was also given by Mr Ciccanti about an access road located on the land to the east of Lot 132 and belonging to Mr Matthews. That road had been constructed over a number of years by using fill material brought to the site by or on behalf of the owner of that land. At some point in time before March 2007, Mr Matthews had sought the agreement of Mr Ciccanti to link that road across the common boundary between the two lots so that there would be a connection between the road on Mr Matthews land and the road running along the eastern boundary of Lot 132. Mr Ciccanti agreed to that course being undertaken and so a transverse link was constructed in the course of that arrangement.
At the time at which the road construction works being carried out on Lot 132 came to the attention of both the Council and the prosecutor, there were piles of material located on Mr Matthew's land. At that time the linking road on his property joined the eastern boundary of Lot 132. Those materials appeared to include broken bricks and concrete. Further, there was no boundary fence between the two properties at this point.
The absence of this boundary fence is important to be noticed because of other evidence given by Mr Ciccanti as to the availability of access to his property. He stated that there were occasions upon which he had seen strangers enter his property and in so doing, drive along the road located adjacent to his eastern boundary. These were persons that did not appear to be associated with any activity being undertaken by Terrace. On one occasion he noted a utility enter his site that he did not recognise. The vehicle drove north along the eastern access road towards the centre of Lot 132. When Mr Ciccanti went to investigate he observed that a pile of tiles had been dumped on his property and then observed the utility leave through his neighbour's property. There was no gate at the front of Mr Ciccanti's property to prevent access by vehicles.
Construction of the road on Mr Ciccanti's property stopped when the work came to the attention of the Council and Lot 132 was visited by Mr Wells, a member of the Council staff. The road being constructed by Terrace had not been completed to its intended length when all work ceased.
Road construction undertaken: the evidence of Mr G Page
Investigators employed by the prosecutor conducted an interview with Mr Page on 21 November 2007. The interview was sound recorded. The recording of that interview was played in the course of the hearing and subsequently a transcript was provided, as were a number of amendments to that transcript proposed by the defendant. I did not understand the prosecutor to disagree with those amendments.
The work generally undertaken by Terrace was described by Mr Page as covering everything "from site excavations, to clearing, to demolition, to dams, wells, hammer-work, and mulching." In order to carry out this work he employed his brother Kelvin, his son Phillip and two other casual employees who work as truck drivers. The equipment utilised by him includes an excavator, a loader and four trucks, one of which is leased.
The demolition work undertaken by Terrace mainly involved houses. That work can include demolition of driveways and work involving the removal of concrete footings.
A great deal of the demolition work undertaken by Terrace is work in conjunction with a company called Novocastrian Demolition (Novocastrian). The principal of Novocastrian was identified by Mr Page as being Nick Curran. Novocastrian or Mr Curran held the necessary licences to remove asbestos from building sites prior to buildings being demolished. Novocastrian attends to all of the requisite paper work and undertakes asbestos removal before Terrace commences any demolition work. Mr Page and his employees have also undertaken a two day course in order to obtain "an asbestos ticket", enabling them to recognise and then properly dispose of materials containing asbestos.
Terrace is not licensed to carry out demolition of building without the authority of a contractor licensed to remove asbestos. It is for this reason that, when undertaking demolition of a building, Terrace was dependent upon asbestos removal by Novocastrian. Once a building proposed to be demolished had been inspected and the presence of asbestos identified, the site would be fenced, asbestos removal undertaken by employees of Novocastrian and the site proclaimed "clean" before employees of Terrace moved in to conduct demolition activities.
Once given the go ahead by Novocastrian, Terrace moved in to demolish the building. All the "rubbish" from such a job was taken for disposal to a tip facility, initially operated by Collex at Raymond Terrace, a facility presently operated by Veolia. A tipping fee of about $80 per tonne was paid to dispose of this "rubbish".
However, not all material from a site upon which demolition was undertaken by Terrace was "rubbish". I will discuss in due course the evidence of Mr Page directed to this other material.
Mr Page does not recall when he was first approached by Mr Ciccanti to undertake work on Lot 132. Terrace had undertaken a number of site works in this Cabbage Tree Road area of Williamtown and Mr Page was familiar with a number of the properties in that area as well as their respective owners. He recalls being introduced to Mr Ciccanti by a neighbour who was well known to Mr Page.
Mr Page was invited to inspect Lot 132 by Mr Ciccanti who indicated that he wished to continue a road down the eastern boundary of his property, mainly to address a fire hazard. On inspection, Mr Page observed that the road was already there, but that it was "down about a hundred". Mr Page observed that it was "just swamp; you couldn't get on it."
Mr Page recalls being told by Mr Ciccanti that the latter had been to the Council about his proposal for a road and was, in turn, sent to the "Fire Brigade". Mr Page said that he was shown a document produced to him by Mr Ciccanti but which he, Mr Page, could not read, as he was illiterate. He said the document was read to him by Mr Ciccanti. Mr Page believed it to be an authority from the Rural Fire Service for works directed to fire mitigation on Lot 132.
The agreement reached between Terrace and Mr Ciccanti to undertake the roadwork was generally as I have earlier described when relating the evidence of Mr Ciccanti. Indeed, there is no difference of substance between Mr Page and Mr Ciccanti as to the manner in which road construction proceeded. In general terms, Mr Page indicated that when he "came across good fill he would put it on top of the road to give good access."
The method of construction was generally consistent with that described by Mr Ciccanti. Mr Page indicated that after commencing construction, an excavator was brought to the site in order to excavate down to a level of about 800mm below the existing surface level in order to accommodate a solid base for the road. The excavated dirt or mud was put to the side and solid filling placed in the excavated section to a level that was about 800mm above the surrounding surface. That material was then "levelled up", with the larger material being placed at the base and smaller sized material being located at the level which would form the surface.
The excavator that was initially brought to Lot 132 was not left there. It was taken away and only returned when Mr Page assessed that he had sufficient material to construct a further section of the road and so the need to excavate a section in advance of delivery.
In his record of interview, Mr Page provided more detailed evidence as to the manner in which he identified the material that he considered appropriate to use for road construction on Lot 132. Most of that material came from demolition sites at which Terrace was engaged to undertake work. He states that once asbestos had been removed by Novocastrian or any other company authorised to undertake asbestos removal and Terrace given authority to proceed, only then was the building demolished. Provided no asbestos was discovered in the course of demolition, the contract required Terrace to load and remove the demolition material.
If asbestos was discovered in the process of demolition, work being undertaken by Terrace would cease immediately and Novocastrian or other companies authorised to deal with asbestos was recalled to the site. The discovered asbestos was then removed from the site before demolition work continued. Removal of that discovered asbestos was generally the responsibility of the licensed asbestos remover. Trucks carrying away such material were required to be lined with plastic before being loaded with contaminated material.
Once the building to be demolished was "on the ground" the material to be removed was separated by employees of Terrace with a view to identifying its ultimate destination. Timber, corrugated iron, tin, internal linings and "whatever else is in your house" at the time of demolition were all materials that were regarded as having no utility and were taken by Terrace to a licensed tip facility. However, the process of separation enabled identification of materials that had construction value. Separated from the general waste resulting from demolition were bricks, concrete and, depending upon their location within the building prior to demolition, clay tiles.
Concrete recovered from demolition activities on a site was, at times, found in driveways that were required to be removed or in the footings of the demolished buildings. Generally, the concrete was separated, including that found in footings, and was broken up by Terrace at the demolition site before being removed. Bricks or masonry were generally not broken up on site.
Once the demolition material had been separated in this manner, all of those materials considered by Terrace as being waste were loaded in trucks and taken to the licensed tip facility. The bricks, concrete and tiles considered appropriate as road base were set aside and separately loaded. It was this latter material that was taken to Lot 132 for construction of the road undertaken by Terrace along the eastern boundary. Not every demolition job undertaken by Terrace during the charge periods yielded material considered to be appropriate for road construction. It was only selected material at selected sites that was so considered and thus the intermittent deliveries and road construction activity on Lot 132.
At times, when demolishing a driveway, material described as "roadamil" was encountered. It was a finer material like hot mix used for road surfacing, described by Mr Page as being "the best stuff you can put on top of the fill material" for a road. It was so described by him because it is material that "packs in really good".
Some of this "roadamil" material was among the material selected by Terrace that was taken to Lot 132 and crushed into the road surface. It represented the finer material placed at or close to the surface over the larger concrete pieces that had been placed a the base of the excavation made by Terrace when constructing the road.
Some of the concrete material taken to the site contained a small component of steel reinforcing. The fact that the steel reinforcing was not a significant component of the material enabled the concrete to be readily broken up when being "walked over" by the Terrace machine used to compact the material.
At one point in time during the course of construction of the road on Lot 132, Mr Page noted that a grassed area of the Lot close to where the road construction was taking place and outside the "swampy area" had been broken up by trucks moving across it and using it as a turning area. Recognising the need for repair, Mr Page used Terrace vehicles to bring mulch to the area which was spread as a top dressing and over which wood chips were also spread. These materials came from a large project being undertaken by Terrace elsewhere but a load was diverted to Lot 132 in order to address the damage to pasture grass occasioned by Terrace trucks. The disturbance to the grass by truck movement had been identified to Mr Page by Mr Ciccanti and the spreading of mulch and wood chips was undertaken by Terrace with the agreement of Mr Ciccanti to undertake that repair.
Delivery of material by Terrace of the kind described to Lot 132 between late November 2005 and 1 March 2007, as well as the use of that material in constructing or upgrading the access road, was generally undertaken by Mr Page, his brother Kelvin or son Phillip. During that time Mr Page estimates that approximately 50 loads of material selected by him were taken to the site and used for road construction.
In addition to the materials already identified, evidence produced, and the records of Terrace pursuant to a notice issued to it by the prosecutor pursuant to s 191 of the POEO Act indicates that during the charge periods, soil and rock from sites upon which excavation was taking place was also taken to Lot 132. This was used in the construction of the access road.
In response to questions posed to him by investigators for the prosecutor, Mr Page denied that any tree had been damaged or removed in the course of constructing the road on Lot 132. He indicated that at some stage during the course of construction he had suggested the removal of a tree or trees to Mr Ciccanti but Mr Ciccanti had refused to allow that to occur. Mr Page had abided by Mr Ciccanti's instruction. While acknowledging that he was not there at all times when road work was being undertaken, Mr Page stated that, to his knowledge, neither his brother Kelvin nor son Phillip, when operating equipment, had damaged or removed any tree. The requirement by Mr Ciccanti that no tree be removed had been conveyed to them.
The road constructed on Lot 132, up to the time at which work stopped in March 2007, was approximately 5.5m wide to accommodate the passage of a vehicle or truck. The onsite material that was excavated in order to accommodate the fill used for construction of the road was used as a batter to the running surface. This batter extended either side of the 5.5m road surface.
Demolition involving both Terrace and Novocastrian
Michael Curran, the sole director of Novocastrian, was interviewed by investigators for the prosecutor. That interview was sound recorded and a transcript of the interview tendered in evidence. Mr Curran was also called to give evidence at the trial. He confirmed the close working relationship had between Terrace and Novocastrian as was earlier described in the record of interview given by Mr Page.
Novocastrian is generally engaged on demolition projects because it is licensed to identify and remove asbestos within any building proposed to be demolished. The focus of the company's operations is upon the demolition of small to medium size buildings, usually being domestic buildings.
Novocastrian has two principal employees, Wayne Divell, who is a supervisor and Steve Travalos, a labourer and asbestos removalist. Both are trained in the identification and removal of asbestos and hold the relevant statutory authority for that purpose. Mr Divell supervises almost all of Novocastrian's works, or at least did so between September 2005 and March 2007. That role required him to be present on the demolition site for what is described as "site set-up", involving the disconnection of all utilities from the building to be demolished, the erection of safety fences, the placing of signage on the fence, setting up site toilet facilities, inspecting and identifying the presence of asbestos (if any) in the building and notifying neighbours about work that is to commence. If any material containing asbestos was identified in the building, it was Novocastrian who had responsibility to remove that material from the building and subsequently remove it from the site.
Novocastrian's equipment consisted of a 3.5 tonne excavator and a 5 tonne truck. That was insufficient to remove the material following demolition of a "standard house" but, in respect of such a house, the equipment was generally sufficient to undertake removal of asbestos materials and subsequently transport it to a waste facility able to receive that material.
It was because of the limited capacity of its equipment to undertake the entire demolition process and removal of material from a site, that occasioned Novocastrian to undertake a large number of its projects with Terrace.
The usual process involved in a job conducted with Terrace was for Mr Curran to identify the likely start date; to indicate the material to be removed by Terrace and that which was to remain onsite. Novocastrian would first carry out all asbestos removal and once satisfied that had been done, Terrace would be called in to carry out building demolition.
Notwithstanding the removal of asbestos by Novocastrian in the first instance, Mr Divell would supervise demolition works and remain onsite until this process was complete in case some further asbestos, not earlier identified, was discovered during the course of demolition. If such material was discovered, demolition would be halted and the further asbestos material cleaned up by Novocastrian. It was only after the building was "on the ground" and Mr Curran or Mr Divell satisfied that no further asbestos was present, that Terrace was left to sort and load material from the demolished building.
Mr Curran explained that when a large project was involved with potentially significant quantities of contaminated material, Terrace was called in because it had trucks with a capacity exceeding the 5 tonne truck capacity of the Novocastrian vehicle. He identified two instances within the charge periods in which Terrace had been engaged to transport a large volume of soil containing asbestos from a demolition site. One such job was at Fullerton Cove. In accordance with the requirements of a licensee authorised to supervise the transport of asbestos material, the trucks used were lined with plastic and the drivers directed to transport the material to the facility at "New Line Road" which was licensed to receive that material. There is no evidence to suggest that the material was not delivered to that site in accordance with the direction given.
The second site in which trucks owned and driven by Terrace employees were utilised involved the removal of loads of material that had been dumped on a site at Carrington. These dumped materials appeared to contain some asbestos material. A qualified hygienist was engaged to supervise the removal of those materials. Heavily contaminated sections of soil were loaded and taken away to the New Line Road facility. Some of the piles contained soil, brick and concrete as well as asbestos. These piles were sieved so that the contaminated material could be separated and removed to the waste facility. Material identified by the hygienist as being "clean" was available to be removed by Terrace. The drivers of trucks employed by Terrace removing asbestos contaminated material from this and the preceding job had undertaken the appropriate course to transport asbestos so that they were familiar with its presence both in the material and in their trucks.
Despite indicating that these were the only two jobs on which Terrace had been engaged to carry asbestos contaminated waste, Mr Curran was shown a further invoice from Terrace for work undertaken on a property at Wine Country Drive, Cessnock. He acknowledged that Terrace had removed asbestos contaminated soil from that property and, in accordance with directions given, had taken it to the tip facility then operated by Collex and had charged Novocastrian for that work. There was no suggestion that the procedures required for removal of that waste and its transport to the facility had not been in accordance with that earlier described.
Once waste was identified that was not contaminated by asbestos, Mr Curran indicated that it was for Terrace to separate and remove it in accordance with its own requirements. In completing the application paperwork for demolition jobs, it was a common requirement to have to address a "waste management plan". Such a plan was required to indicate whether materials could be used beneficially by being recycled. Mr Curran indicated that bricks and concrete were, wherever possible, recycled because they are "an item that can be crushed and re-used".
Mr Curran indicated that for a time he employed a lady truck driver by the name of Rose. He recalled that Rose took one or two loads of bricks to Lot 132 and did so at his direction. He was unable to recall when those bricks were taken to the Lot.
Following investigation into the construction of the road on Lot 132, a notice was given by the prosecutor to Terrace requiring that the material used in road construction be removed. This was because eight small pieces of asbestos were discovered within the road material. A Novocastrian truck driven by Rose was used to remove some of this material from Lot 132. Mr Curran observed that in the material taken away there was "hardly anything as far as contamination". He then observed "whereas in the paddock next to that, it is sort of laying everywhere. So who knows where it came from." Further questioning indicated that reference to the paddock was reference to the land adjoining Lot 132 to the east.
Material transported from other building sites by Terrace
Daniel Smith is the sole director of a company known as PBS (Newcastle) Pty Ltd (PBS) which carries on business as a building contractor. In carrying out its business as a building contractor, it engaged the services of Terrace from time to time.
In February 2006 PBS was engaged to erect a new dwelling on a site known as 33 Scenic Drive Merewether. The site was described by Mr Smith as a "virgin site" upon which he was contracted to erect a new dwelling. Terrace was engaged to carry out excavation of the site to accommodate the new dwelling. The excavation involved the removal of a thin layer of soil that was overlying rock. The rock was "hammered out" by Terrace which required a "big machine" for that purpose. The excavated soil and rock was taken from the site by Terrace. Mr Smith stated:
"The site has to be cut so the house could fit in the hole. The material that was taken out was a good material and it was re-usable."
The owner of the Merewether site for whom PBS was constructing the new dwelling advised Mr Smith that he was a friend or acquaintance of Mario Ciccanti. As a consequence, Mr Smith made the decision that some of the soil and excavated rock should be taken to Mr Ciccanti's property "at Port Stephens". Mr Smith was asked in cross-examination whether he had a personal involvement in the decision to take the material to Mr Ciccanti's property. He replied in the affirmative. The next question and his answer should be recorded:
"Q.What personal involvement did you have in that decision?
A.I made the phone calls. I contacted the owner and said we've got a large source of good material here and its not rubbish. Its an excellent road base for building roads or that type of thing. In fact it went not only to this site, it went to other sites as well as the excavation continued for the entire part of the job. I contacted the owner and said 'well, if there's someone that can take the fill or it would be as good as saleable item, it's a good product', and so he put onto his contact. I made the phone calls to them and said 'what's the situation, can you take it? What's the access like you know, can it handle wet weather and all that sort of thing?' He got back to me and said 'yes, I am happy to take it. Send us up a load and we will see how good it is' and that continued through the duration of the job."
Horst Lehman was another building contractor working in the Newcastle area. He conducted his business in partnership under the business name of Marley Design Developments. In the course of conducting that business he had, over a number of years, engaged the services of Terrace.
In January 2007, Mr Lehman's firm was the principal contractor engaged to carry out residential building work on land known as 69 Scenic Drive, Merewether. Terrace was retained as a subcontractor to carry out excavation work. The project involved renovation of an existing dwelling with some building materials to be removed but not by Terrace. Terrace was engaged to remove a layer of soil containing grasses and small shrubs and to excavate solid rock which Mr Lehman described as providing road base. This rock was excavated and broken up onsite by hammering, using the equipment supplied by Terrace. The stripped overburden and broken rock was then taken away from the site by Terrace. The broken rock was described by Mr Lehman as material called "road base" because it packs down very tightly "to make a very sound base for that so normally it's a fairly sought after material I suppose so, yeah."
In the middle of 2006, Terrace was retained by Mr Lehman to carry out work on his own property in Scenic Drive, Merewether. At the time there was a small dwelling on that land which was demolished by Terrace and the materials removed by Terrace, from the site. There was also an excavation carried out in order to accommodate a new dwelling on the site. The material removed was fill and clay. The destination of this material after leaving Mr Lehman's premises is not apparent from the evidence.
In February 2007, Terrace was engaged by Williams River Steel to undertake the clearing of a site at Old Punt Road, Tomago that had been acquired by Williams for the purpose of building a new head office on the land. The site was heavily vegetated and Terrace was required to clear the land in preparation for earthworks. The cleared vegetation was mulched by Terrace and, so it is suggested, then taken to a green waste facility. Whether this is the source of the mulch used to repair the grass or pasture area on Lot 132 damaged by Terrace's trucks is not clear from the evidence.
Fill material on land at 150 Cabbage Tree Williamtown: the evidence of Peter Matthews
Peter Matthews is the owner of property located at 150 Cabbage Tree Road, Williamtown. This is the land that adjoins Lot 132 on its eastern side. It is the land upon which there were piles of fill material immediately adjacent to the common boundary between No. 150 and Lot 132 where the road within No. 150 had diverged to link to the road being constructed along the eastern boundary of Lot 132.
As I have earlier recorded, the construction of the road on Lot 132 first came to the notice of Mr Wells, an employee of the Council, in March 2007. It was Mr Wells or his superior who alerted the prosecutor to the construction of that road. At the time at which that construction was first investigated in 2007, the piles of fill material on No. 150 were located adjacent to the boundary and the link road apparent. Indeed these aspects of No. 150 were photographed. Notwithstanding their existence, it seems that the piles and their contents were not then investigated nor was Mr Matthews as owner of No. 150 spoken to about the piles or roadwork until about November 2009.
Mr Matthews had been bringing fill to his land since sometime between 1997 and 1998. While the fill initially brought to his land had not been the subject of any consent from the Council, he subsequently made an application with the intent of filling a large area so as to provide high ground for a cattle stud that he proposed to introduce to his land. That substantial area of fill did not eventuate, but fill was used in other areas.
Prior to 2005, Mr Matthews engaged a company known as Hoadleys Earthmoving to construct a road within No. 150. This road was located towards the western side of the land and was roughly parallel to its western boundary. The road to be constructed followed an existing track. Earthmoving equipment was used to excavate about 300mm into the surface along the line of this track and then the excavated area was filled with surplus concrete that was brought onto the property. Mr Matthews was not working on his land when Hoadleys constructed this road. The road then built extended to within about 100m of the tree line at the back of his property. This road, which came to be referred to as the Hoadleys Road ended at the point at which there subsequently came to be constructed a diagonal road that linked across to the boundary between No. 150 and Lot 132.
In 2006, Mr Matthews was working as a builder and demolisher on a property at Stockton. Part of the work there involved was the demolition of an existing house. That work was being carried out in conjunction with SLW Excavation and Earthmoving Pty Ltd (SLW). It was the function of that organisation to clear the site once Mr Matthews had demolished the existing dwelling.
There were concrete roof tiles on the roof of the house to be demolished. Mr Matthews arranged for these tiles to be removed and for SLW to carry them to 150 Cabbage Tree Road where they were left in a pile at the end of the Hoadleys Road near to the western boundary with Lot 132. During that same year or very early in 2007, Mr Matthews worked as a builder and demolisher at another property in Queen Street, Stockton. Work on this site also involved the demolition of an existing house. Once demolished, the material was inspected by Mr Matthews who placed asbestos material that he found into a skip bin which, to his understanding, was taken to a waste management centre. However, the roof tiles, concrete footpaths, footings and bricks from this property were transported back to 150 Cabbage Tree Road and deposited in piles at the end of the Hoadleys Road and near to the western boundary of his property. Once again, a truck owned by SWL was used to transport this material to No. 150.
At some point in time Mr Matthews spoke to Mr Ciccanti and asked whether Hoadleys Road could be extended to the western boundary of No. 150 so that it linked with the road extending northerly inside the eastern boundary of Lot 132. When speaking to Mr Ciccanti, Mr Matthews said "there's no use in both of us putting a road to get down to the back." Mr Ciccanti agreed with this course.
Having received Mr Ciccanti's agreement, Mr Matthews used a backhoe to excavate an area about 300mm deep, 3m wide and about 20m long so that the excavated area linked the end of the Hoadleys Road to the western boundary of the Matthew's property, the Ciccanti road.
Once this excavation had taken place, Mr Matthews sought the agreement of Mr Ciccanti to discuss completion of the diagonal section of road utilising the services of Mr Page. Mr Page was requested by Mr Matthews to "pull the piles" of material that were deposited on the Matthew's land into the excavated area. Mr Page agreed to do this work and subsequently carried it out on Mr Matthew's property. Mr Matthew's observed that an opening of about 10m had been created in the boundary fence between the two properties which was not subsequently reinstated.
After this work was done more demolition rubble was brought onto Mr Matthew's land and deposited on his property near to the end of the newly constructed road extension linking with Lot 132. This rubble consisted of terracotta tiles, brick and concrete footings. The material also came from the Queen Street property upon which Mr Matthews was working.
Further piles of rubble from a demolition site at Fern Bay were transported to Mr Matthew's property by SLW. These materials were of a similar kind as had previously been brought to the property and were tipped in piles in the vicinity of the other piles to which I have referred. Mr Matthews had not seen the Fern Bay site from which the building rubble came. Further rubble came from a site at Stockton upon which Mr Matthews was working and was deposited on his property in piles similar to those that I have earlier described. A number of those piles remain.
One reason for linking Hoadleys Road with the road on Mr Ciccanti's property was that the latter road already extended further to the north than did Hoadleys Road constructed on Mr Matthew's land. Mr Matthews also indicated that the linking of the two roads accommodated motorbike riding thereby enabling each family to ride onto the others property. The children of both families were at that point in time riding quad bikes on the properties.
Mr Matthews stated in oral evidence that the piles on his property that were evident to anyone inspecting the area in 2007 have not, to his knowledge, been disturbed or dug through by any person. Certainly, he had not done so in order to determine whether the stockpile contained material other than what he believed them to contain, namely a mixture of tiles, bricks and concrete.
Observations of the road: in and after March 2007
The fact that the eastern road on Lot 132 was being constructed came to the notice of David Wells, an employee of the Council, on 1 March 2007. As a result of his observations, Terrace was requested to stop work and it did so. Kelvin Page was unloading material at the northern end of the road at that time.
The road was first inspected by Danielle Playford, an investigation officer of the prosecutor, on 15 March 2007. She was accompanied by Mr Wells and also Anthony Randall, a development manager employed by the Council.
Ms Playford observed that Lot 132 was low lying flat land. As she travelled the road just north of the dwelling on Lot 132, she noted that it was elevated above the "natural ground level" on either side. She observed large areas of water either side of the road with vegetation such as casuarinas and other native trees on either side of the road. As she proceeded further north along the road on Lot 132, Ms Playford observed that the road appeared to be constructed of bricks, tiles and concrete with plastic and metal piping also observed.
At a point towards the northern end of the road, the vegetation changed to what was described as a "densely vegetated wetland". Trees growing in that area were observed to be melaleucas, otherwise known as paperbark trees. Water appeared on either side of the road up to the level of the road batters. Those road batters appeared to be constructed of soil material from the excavation made to construct the road. Within the wetland area, an understorey of ferns, reeds and other plants were observed.
Part 1 of that Appendix identifies "[s]tabilised asbestos waste in bonded matrix." It is this chain of statutory provisions upon which the prosecutor relies in order to establish the charges against Terrace so far as they relate to asbestos.
In this context, the case against Terrace is circumstantial. There is no evidence directly supporting an assertion that Terrace, by any of its employees, transported material containing asbestos to Lot 132. My earlier recitation of evidence, particularly that contained in the record of interview with Mr Page, together with the other builders who gave evidence in respect of sites in which asbestos was located, indicated the manner in which the discovery of any asbestos was separated and addressed for removal from the site prior to the undertaking of demolition or removal of demolished material, as sorted, from a particular site.
There is evidence that a total of eight small fragments of bonded asbestos were discovered on Lot 132. The fact that they were so discovered coupled with the fact that Terrace had transported other materials to the site is, so it seems, the circumstantial evidence upon which the prosecutor relies in order to establish that the asbestos had been transported by Terrace.
Where circumstantial evidence is relied upon, it is necessary that the prosecutor exclude all other rational hypotheses in order to prove to the requisite standard that the asbestos was transported to the site by Terrace.
I do not accept that the prosecutor has discharged its onus in this regard. There are other rational hypotheses to explain the presence of that material.
One hypothesis that is wholly rational is that the source of any such asbestos was from the property adjoining to the east owned by Mr Matthews. He had been transporting demolition materials to his site, albeit intermittently, between 1997 and 2007. The evidence recited the number of stockpiles that were brought to his site, materials used for road construction and stockpiles which remained onsite both during and after the conclusion of road construction on Lot 132. While Mr Matthews indicated that he had been careful to check loads from sites with which he was familiar, some material had come from places which he had not seen, including a demolition site at Fern Bay. He had simply arranged for material to be transported from that site to his property. Further, his evidence was that he had not, and to his knowledge no-one else had, sought to examine the piles beyond the surface material to ascertain their contents.
Not only is the existence of the material both used and stockpiled on Mr Matthews property of importance, it assumes greater significance when one considers that the material or some of it was used to construct the diagonal road linking the Hoadleys Road on his property with the road on Lot 132. It is also relevant that with the completion of this road, quad bikes used by Mr Matthew's family traversed the road, including the area proximate to the stockpiled material on his property and then drove onto the eastern road constructed on Lot 132.
For reasons that are not apparent, the investigators employed by the prosecutor did not take any action to investigate the content of the materials on Mr Matthew's property nor the hypothesis of transport of material from that property onto Lot 132. No action was taken when the evidence of the investigators indicated that the presence of the stockpiles on the Matthew's land and their proximity to the boundary of Lot 132 was readily apparent.
Finally, in relation to the material on Mr Matthew's land is the evidence of Mr Curran, the sole director of Novocastrian. He visited Lot 132 in the course of removing material from the road on that land in accordance with the clean-up notice issued by the prosecutor. The evidence contained in his record of interview was that according to his observation when discussing "contamination", he stated "its sort of laying everywhere" in the paddock next door, referring to Mr Matthew's property (Q 268-269). That evidence was not further explained but the context clearly indicates it to be a reference to his perception that there were bonded asbestos fragments in the material that he could see on Mr Matthew's property.
The evidence reveals further hypotheses that are not irrational and supporting the presence of bonded asbestos fragments on Lot 132 other than by transportation to the site by Terrace. First, Mr Ciccanti disclosed to the prosecutor's investigators during his interview in 2007 that several of the structures on his land had elements, such as eaves, which were of bonded asbestos. He related the incidents of breakages to these eaves, on an occasion caused by his children playing with a football. While he spoke of collecting and wrapping the major fragments that he discovered, no attempt was made by the prosecutor to further investigate the presence of asbestos from incidents on the property of this kind. It is not irrational to suggest that if fragments or pieces remained from breakages to these building elements on the site, they may have been thrown, washed or transported by vehicles including quad bikes that were used on the property to areas along the eastern road. Further, this may well have occurred along the road or track prior to its being upgraded by Terrace. The process of excavation in order to upgrade the road could well have exposed or mixed that material in with the material deposited by Terrace.
A further hypothesis is that asbestos fragments were inadvertently transported to and deposited at the site when the Novocastrian truck driven by Rose brought a couple of loads of bricks to Lot 132. Novocastrian, it will be recalled, specialised in the removal of asbestos from buildings particularly prior to their demolition. The delivery of bricks to Lot 132 was made at the direction of Mr Curran.
A further hypothesis explaining the presence of asbestos emerges from a further aspect of the evidence given by Mr Ciccanti which was not challenged. He indicated that from time to time strangers entered Lot 132, there being no gate at the street frontage and of whose activities he was unsure. He gave specific evidence of a utility arriving on one occasion and when investigated, was seen to have deposited a load of rubble apparently containing bricks towards the northern end of the eastern road, with the vehicle then observed to leave through the property of Mr Matthews.
Finally, the unexplained presence of bonded asbestos emerges from the report of RCA Australia, the geotechnical and environment consultants retained by Terrace to advise on the implementation of the prosecutor's clean-up notice. For the purpose of providing advice, the site of the road on Lot 132 was visited on a number of occasions. Site inspections were conducted by the organisation's environmental services manager in November 2007 and again in February 2008 by an environmental scientist. On each occasion close examination was made in order to determine whether asbestos fragments could be detected. None were detected on either occasion, notwithstanding that on the second occasion there was a 2m bio-dimensional grid adopted for the purpose of inspection over the area being considered. It was only when a number of test pits were dug that four small pieces of bonded sheeting were identified and all were contained within a 5m radius. They were located near to the ground surface.
Relevantly, a further asbestos cement piece was subsequently located on the surface of the road but outside the area that was the subject of the clean-up notice. That piece had not been observed in that location when the previous two inspections had been carried out. The piece was described as being "relatively large, clean and was found lying on the surface of the fire trail". Due to the size and location of the piece, it was stated by the environmental scientist who prepared the report that its presence was most unlikely during the initial site inspections and thus had emerged in that location between 8 February 2008 and the time at which test pits were being dug in May of that same year. Without further explanation, this evidence militates against bonded asbestos fragments being included in the material transported to the site by Terrace and deposited in the road matrix. At least, the mobility of bonded asbestos fragments from sources unexplained, demonstrates the failure of the prosecutor to exclude other rational hypotheses for the presence of asbestos on Lot 132.
I am not satisfied beyond reasonable doubt that the material transported to Lot 132 included asbestos in any of the forms alleged by the prosecutor.
Both the Council officer and investigators from the prosecutor who inspected the road on Lot 132, commencing in March 2007, described the material that they were able to observe as generally conforming to the description given by Mr Page of the various materials transported to the site by Terrace. There was an observation of a small amount of plastic and a piece of metal but, once again, the presence of those materials is circumstantial rather than direct evidence from Terrace or any document produced by it that the materials transported by Terrace. I am not satisfied beyond reasonable doubt that Terrace did transport that material. Even if, contrary to my determination there be an inference that such material came within a load of concrete, bricks or tiles, the evidence certainly does not establish that there was any continuing course of conduct as distinct from an episode of littering.
The material transported to Lot 132 was not waste
The manner in which material should be assessed for the purpose of determining whether it is "waste" within the meaning of s 143(4) has already been discussed. Applying the considerations that I have identified to the material as having been transported by Terrace to Lot 132, I am not satisfied that the material at the time of transport was "waste" within the meaning of the subsection.
The fact that a dwelling was to be demolished or a site excavated did not have the consequence that all the material brought to ground as a result of demolition or material excavated to accommodate a new dwelling was, in either case, material that was unwanted or surplus at that site. I so conclude by reason of the deliberate process of separating materials so that those identified as being unwanted or surplus in the true and objective sense were set aside and taken to a landfill site. Those materials identified as serving a construction function for the purpose of the road or track to be upgraded on Lot 132 were, having been so identified, set aside at their site of origin, loaded separately into trucks for transport, taken to Lot 132 and within a short space of time placed on the road alignment and compacted as part of the road construction.
Further, the materials so identified and transported by Terrace did not reflect some unusual or idiosyncratic response by Terrace such that it could be said that it was the only entity in whose hands the material was wanted. In all the materials that I have found were transported to Lot 132, there was evidence demonstrating that material of that kind was wanted and used for the purpose for which it was in fact used on the Ciccanti land.
Both Mr Smith and Mr Lehman, building contractors who had used the services of Terrace, addressed the surface soil and significant rock that had been excavated from building sites upon which they were each working. Mr Smith, it will be remembered, was working at a site in Scenic Drive, Merewether. In order to construct a new dwelling on this site it was necessary for there to be excavated and removed what he described as overburden comprising virgin soil and rock. Clearly, the soil removed and rock excavated was not needed on that site. However, he stated, as a building contractor of some years experience, that the material removed by Terrace "was a good material and was reusable" being "as good as a saleable item". He added that the material removed was "an excellent road base for building roads or that type of thing" being "ideal" for the purpose of constructing a road. While his evidence was that the owner of the site for whom he was working directed that the material, or at least some of it, be provided to Mr Ciccanti for the construction of his road on Lot 132, Mr Smith stated in oral evidence that it was material sought by others for use on other sites to the point that he had made it available to others in addition to Mr Ciccanti.
In the case of the building project for which Mr Lehman was responsible, he had engaged Terrace to remove rock which was required to be "hammered out" on another property located in Scenic Drive at Merewether. Although removal of this rock was required in order to fulfil the contract that he was responsible to implement, he identified the compaction properties making the material useful for road base. He stated that it was material that "we would possibly call in the industry road base". He added that such material is "a fairly sought after material".
These are the kind of objective criteria that, to my mind, enable one comfortably to conclude that the material is wanted and is not surplus when those expressions are understood in the context of the ordinary meaning of "waste". To conclude otherwise would place too great an emphasis upon the narrow perspective of the owner of a site wishing to remove or displace the material in order to accomplish a specific project. Thus my early example of the proponent of a new waste facility proposed for a new site in which a substantial quantity of overburden and rock are required to be removed before the provider of the facility can commence fulfilling the purpose for which the land has been developed. That desired purpose cannot be the sole criterion upon which the valuable overburden and rock (taking my earlier example) had for the purpose of important infrastructure development.
The "commonsense" approach to the application of the definition of "waste" which I have identified, seems to me to be consistent with a purposive approach to the interpretation of the legislation as a whole. One of the expressed objects of the POEO Act, as expressed in s 3, is "to assist in the achievements of the objectives of the Waste Avoidance and Resource Recovery Act 2001". An object of the latter legislation, as expressed in s 3 of that Act, is to ensure that resource management options are considered in the context of "resource recovery (including reuse, reprocessing, recycling and energy recovery)". These legislative provisions support the need to focus upon a number of factors of the kind earlier identified when determining whether material is "waste" rather than making the assessment wholly upon the position of the party or entity initially determining the material surplus to its requirements and therefore unwanted by it.
There is no reason why these considerations should not equally apply to the concrete, tiles and other material that I have found was the material transported by Terrace to Lot 132 for the purpose of road construction. In the course of his interview with investigators acting for the prosecutor, Mr Ciccanti had indicated his preference for road construction material comprising bricks and concrete because of local experience. Although he professed no understanding as to the building of the road, he claimed to be taking the same approach to internal road construction as had been taken by 20 other houses in Cabbage Tree Road. Expressed differently, he identified material that was apparently in some demand for and considered appropriate for the base of an internal farm road in an area prone to being waterlogged.
Evidence of this kind extended beyond the anecdotal evidence of Mr Ciccanti. Mr Matthews had built the internal road in his property to the east of Lot 132 using material of a similar kind to that transported by Terrace to Lot 132. The essential construction elements for his road had been brick and concrete selected from demolition sites. He also observed that those were the materials common in the area for construction of roads of a similar kind. He added "that's why Concrush and Boral make big money out of it these days. That's what they use."
There was no evidence adduced by the prosecutor suggesting that the materials transported to Lot 132 by Terrace comprised a medium that was unknown for or was inappropriate for construction of a road of the kind constructed on Lot 132, having regard to its intended purpose. No witness called in the case spoke against either the utility of that material for road construction or the absence of any demand for it to be used in such a way.
Reprocessing - reusing or recycling does not prevent a "waste" categorisation
The last sentence in the definition of "waste" found in s 143(4) has not been overlooked by me. It is the qualifying sentence to the definition, providing that a substance is not precluded from being waste "merely because" it is capable of being "reprocessed, re-used or recycled." I regard the qualification so expressed as being a limited one. I take it to mean that the capacity of the material in question to be "reprocessed, re-used or recycled" does not, of itself, determine that the material is not "waste". However, the qualifying sentence does not result in the ordinary meaning of "waste" being ignored and, in particular, it does not change the determination that the material or substance be "unwanted" or "surplus" in order to qualify as "waste".
The qualification so expressed, read with the inclusive definition of "waste" in s 143(4) is understandably given some emphasis by the prosecutor, particularly in the context in which the entirety of the defined expression was considered by Pearlman J in Environment Protection Authority v HTT Huntley Heritage Pty Ltd [2003] NSWLEC 76; (2003) 125 LGERA 332. Huntley was prosecuted for a breach of s 64 of the POEO Act for breaching a condition of its environment protection license by accepting onto its site material described as construction and demolition waste. The conditions of its license limited any waste material being brought onto the site as being either virgin excavated natural material or non-hazardous bulk agricultural or crop waste that is not putrescible.
The Huntley site was an old colliery that was being rehabilitated. The material brought to the site was in stockpiles and described by the prosecutor's witness as being comprised of building rubble. It was claimed by Huntley that the material was stockpiled with its intended use eventually for rehabilitating the site. Her Honour was confronted with a contention that the material fell within paragraph (c) of the definition of "waste" as it appeared in the Dictionary to the Act prior to 1 May 2006. Paragraph (c) identified "waste" to include:
"(c) any otherwise discarded, rejected, unwanted, surplus or abandoned substance intended for sale or for recycling, reprocessing, recovery or purification by a separate operation from that which produced the substance ... ."
Her Honour determined (at [20]) that the material was "waste" within the meaning of paragraph (c) of the definition. She stated that at the point of time at which the material came to the Collex waste facility it was waste, observing that "... 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."
At the Collex waste facility it was received from various sites because neither the owner of the material at the source site nor the transporter of that site wanted it for any purpose for which there was an objectively demonstrated need. It clearly was material that was discarded or unwanted. Once received at the Collex site, the waste was subject to some preliminary sorting, following which it was transported by Collex to the Huntley site and for which Huntley was paid a fee. Thereafter the piles remained onsite awaiting their apparent future use for rehabilitation although that time had not yet arrived.
Having determined that the material was waste at the time at which it was received at the Collex waste facility, her Honour continued at [20]:
"The question is - was it still "waste" at the time it was accepted by the defendant at the premises? I do not accept the C & D material changed its character upon its acceptance at the premises simply because the defendant intended to re-process 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 subcl (c) even if it is ' ... intended ... for ... reprocessing ... by a separate operation from that which produced the substance."
The passage from which I have quoted clearly reflects on the part of her Honour the qualifying sentence in the definition of "waste" that material does not cease to be "waste" "merely because" it may be reprocessed, re-used or recycled. This is apparent because in the passage quoted she substituted the word "merely" with the word "simply". In the context of that case, the qualifying provision had significance because the stockpiled material was and had been present in that form for some time, there "merely" being an intention to reprocess or re-use it at some unspecified time in the future.
The circumstances considered in Huntley are significantly different from those that pertain in the present case. Unlike Huntley, the materials transported by Terrace have not been through a process of deposit at a waste facility. These materials have been identified by nature and separation from other materials as being needed for road construction, with the intention that they should be so used immediately upon delivery to the road construction site. No stockpiling awaiting some future intention for re-use was involved. So much is apparent from the evidence of the prosecutor's investigating officers. As earlier recorded, Ms Playford recognised that the only material on Lot 132 that could be said to resemble a stockpile was that at the northern end of the road awaiting deposit into the hole that had been dug for the purpose of further construction. The use of that material in the excavated hole did not occur simply because Council officers had requested that work cease. The absence of stockpiles on the subject site were in contrast to the position that pertained on the adjoining site to the east.
Further, the evidence of both Mr Ciccanti and Mr Page confirms the manner in which road construction was conducted incrementally, in that sections were excavated only to the extent that appropriate material was available for filling and compaction so as to further the road construction project. Stockpiling of material did not occur.
This factual distinction is important when considering the observations of Pearlman J in Huntley. As Terrace submitted, the decision does not hold that if a substance is not wanted for retention at its source, it necessarily is and remains "waste" as that expression is defined in the Dictionary to the POEO Act. For reasons earlier stated, the sentence qualifying the definition of "waste" does not detract from the proposition that the material must first be identified as "waste" within the ordinary meaning of that word, including a determination that it is "unwanted" or "surplus". As I have found, the material transported by Terrace did not, for the reasons earlier stated, fulfil the definition.
"Waste" during the second charge period
The definition of "waste" to be considered for the purpose of considering the offences said to have occurred during the second charge period is the definition found in the Dictionary to the Act in the form which that definition took from 1 May 2006. While the definition contained a number of paragraphs linked with the conjunctive "or", those paragraphs on which the prosecutor relies are paragraphs (a) and (b). Although those paragraphs have earlier been quoted, for the purpose of present consideration I will repeat their provisions:
"(a) any substance (whether solid, liquid or gaseous) that is discharged, emitted or deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment, or
(b) any discarded, rejected, unwanted, surplus or abandoned substance ... ".
Paragraph (a): alteration to the environment
The definition of "waste" as found in paragraph (a) differs markedly in its expression from the other paragraphs within the same definition. Those other paragraphs seek to identify "waste" by some adjectival characteristic of the material being considered. In contrast, the description in paragraph (a) necessitates the consideration of a consequence of action taken in respect of that material rather than an adjectival characteristic of the material itself. It is directed to the impact of a substance which may not have an intrinsic quality that would attract the ordinary definition of "waste". It is only when some action is taken in respect of that material, namely discharge, emission or deposition that occasions a material to be assessed in order to determine its environmental consequence.
So understood, it is not apparent to me that this definition is engaged when considering an offence under s 143(1) of the POEO Act. As I have earlier determined, an offence under that section is complete when the transportation of material has occurred, that is the material that constitutes "waste" has been carried from its source to its destination. No element of the offence requires consideration of the discharge, emission or deposition of that material at the "place" which is the subject of charge.
For these reasons, I conclude that paragraph (a) of the definition of "waste" in the Dictionary to the POEO Act has no application to the material transported by Terrace to Lot 132. Clearly, there will be other provisions of the POEO Act to which the paragraph has ready application. My determination involves no more than the application of s 6 of the Interpretation Act 1987: paragraph (a) of the definition has yielded to the context in which "waste" is used in s 143(1) of the POEO Act.
Paragraph (b): a discarded, rejected, unwanted, surplus or abandoned substance
The provisions of paragraph (b) of the definition are, in substance, to the same effect as was the definition of "waste" in s 143(4) prior to its deletion by the amending legislation that took effect from 1 May 2006. The determination that I have earlier made in relation to the definition and, in particular, the expressions "unwanted" and "surplus" remain apposite to the present paragraph (b).
Further, I do not consider that the additional descriptor of a substance as one that has been "discarded", "rejected" or "abandoned" detract from the argument. In the ordinary use of language, it could not be said that the material which I have determined were transported by Terrace were, at any point in time, either "rejected" or "abandoned". As to whether those materials were "discarded", they were in a sense "cast aside" by the owner of the land on which they were initially located but this acknowledgement does no more than enliven the enquiry earlier addressed. That is, whether in the context of any inclusive definition of "waste", the motive of the proprietor seeking to cast aside the material is the sole factor in determining that the material is waste. For the same reasons earlier articulated, the entire factual matrix requires consideration in order to address the definition and in so doing no different conclusion is reached by me from that earlier expressed when determining that the material was not waste.
In summary, I am not satisfied beyond reasonable doubt that the material transported by Terrace to Lot 132 during the second charge period was "waste", as that term is defined in the Dictionary to the POEO Act.
This determination renders it strictly unnecessary to consider the third element of the offences with which the defendants have been charged, namely the lawful use of Lot 132 as a waste facility. However, as there are competing submissions as to the onus in that regard I propose briefly to address that matter.
Lawful use of Lot 132 as a waste facility
It is an essential element of the offence with which the defendant's are charged that Lot 132 could not lawfully be used as a waste facility for the material transported to it by Terrace. As the defendant submits, that is not only an element but is "the gravamen of the offence".
Terrace gives this emphasis in support of its submission that subject to careful analysis of the statutory provisions, it is an element of the offence for which the prosecutor bears the criminal onus. That onus, so Terrace submits, is to prove to the criminal standard that lawful authority was required to use Lot 132 as a waste facility. Only once that has been proved does an onus shift to Terrace to establish that it held a lawful authority for that purpose.
I have earlier quoted the provisions of subsections (1) and (2) of s 143. The relevant element as expressed in subsection (1) is that the place cannot lawfully be used as a waste facility for the transport of waste. The prosecutor submits that the effect of subsection (2) is to impose an onus on the defendant of disproving the negative element of the offence.
In support of its submission, the prosecutor cites observations by members of the High Court in Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249 and Dowling v Bowie [1952] HCA 63; (1952) 86 CLR 136. Those cases were concerned with statutory provisions that identified exceptions or provisos rather than elements of an offence expressed in the negative. Relevantly, they emphasised that the question of onus will depend upon the interpretation of the statutory provision or provisions in question.
Both parties recognise that the "golden thread" of the criminal law is that it is for the prosecution to prove the defendant's guilt, recognising that the obligation is subject to any statutory exception (Woolmington v DPP [1935] UKHL 1; [1935] AC 462 at 481). Applying this principle and cognisant of the need to interpret legislation consistently with it, the question to be determined is whether subsection (2) reverses the burden of proof in respect of the negative element of the offence created by subsection (1).
In undertaking the task of interpreting the provisions of subsections (1) and (2), the "golden thread" should be kept firmly in mind. This can be done without doing any injustice to the language of the subsections if the onus is divided into parts. Implicit in subsection (1) is that some lawful authority is required in order to use the place to which waste is transported as a waste facility for that waste. No injustice is done to the language or purpose if the onus is cast upon the prosecutor to establish that lawful authority is required to use the place in that manner. Once that onus has been discharged, effect is given to subsection (2) by shifting the onus to the defendant to establish that any or all requisite authorities were operative at the time at which waste was transported to that place.
Such an approach is, to my mind, supported by observations of Preston CJ in Environment Protection Authority v Hardt [2006] NSWLEC 438; (2006) 148 LGERA 61. His Honour was there conducting a trial for an offence against s 144(1) of the POEO Act. Under that subsection, it was an offence for the owner or occupier of land "that cannot lawfully be used as a waste facility" to permit the land to be used as a waste facility. Subsection (2) was in identical terms to the provisions of subsection (2) of s 143 in providing that the defendant bears the onus of proving that the land concerned "can lawfully be used as a waste facility." In addressing subsection (2) his Honour observed at [77]:
"If s 144 is read as extending to all lawful authority that was requisite in the circumstance of the case, it is understandable that Parliament would put the burden of proving lawful authority on the defendant as it cannot be expected that a prosecutor such as the EPA would be in as good a position as the defendant to prove absence of lawful authority in respect of authorisation provided by bodies other than itself."
This observation, is consistent with the dual onus to which I have referred when addressing the lawful use element of a waste facility in an offence under s 143. The defendant is in the best position to prove that a required authority is held. However, the defendant is in no better position than the prosecutor to prove, in the first instance, that a lawful authority is required. The rationale offered for the reversal of onus does not apply to that component of the offence.
I favour the position as to onus advanced on behalf of the defendant. Further support for that position emerges from the decision of the Preston CJ in Hardt. Although his Honour was not expressly addressing the extent to which the onus of proof was reversed by subsection (2) of s 144, his Honour made findings that infer a consideration of that onus consistent with that which I have embraced. At [87] his Honour found "beyond reasonable doubt" that the defendant's land could not lawfully be used as a waste facility under the Act. The reasons for that finding were then articulated. Following those reasons his Honour said at [92]-[93]:
"92 The prosecutor has, therefore, established beyond reasonable doubt that the defendant's use of the land was a scheduled activity which required a license.
93 By reason of s 144(2) of the Act, the onus would then be on the defendant to prove that there was a license to carry out the scheduled activity."
The prosecutor submits that the findings made by Preston CJ should not be taken as expressing a requirement that lawful authority for use as a waste facility be established to the criminal standard by the prosecutor. In essence it is submitted that his Honour's language was unnecessary. For my part, I would not accept that submission.
While Preston CJ was not, in terms, apparently called upon to determine the question of onus, the language of his decision demonstrates that he had identified for himself the dual onus to which I have referred. There is no reason to think that his Honour was other than careful in the language that he adopted.
Resolution of the proceedings
For reasons earlier stated, the prosecution has not proved beyond reasonable doubt that the material transported to Lot 132 during each charge period was "waste" within the meaning of the POEO Act. As a consequence, no finding is made or required as to whether authority was required to use that Lot as a waste facility. Implicit in any such determination is the fact that "waste" was transported to Lot 132. Such a consideration would be contrary to the determination that I have made.
My determination that an essential element of the offence charged against Terrace has not been established beyond reasonable doubt would require that a verdict of not guilty be entered in favour of Terrace on both charges. As my finding in respect of "waste" is also fundamental to the charges brought against Mr Page, verdicts of not guilty would also be appropriate to be entered against him.
However, the prosecutor has requested that I refrain from entering formal verdicts in these proceedings in order that it may exercise its right to submit any question of law arising in the proceedings for determination by the Court of Criminal Appeal. It makes this application pursuant to s 5AE(1) of the Criminal Appeal Act 1912.
Accordingly, the only formal order that I propose to make is that the proceedings be stood over for a period of 21 days to enable the prosecutor to make any such application as it may be advised to make, otherwise verdicts of not guilty will be entered in all four proceedings.
Orders
The orders that I make are as follows:
1. Stand over all proceedings to Friday 19 October 2012.
2. Unless by that date an application is made by the prosecutor to state a question of law for determination by the Court of Criminal Appeal pursuant to s 5AE of the Criminal Appeal Act 1912, verdicts of not guilty in all four matters will be entered on that day.
**********
Amendments
11 December 2012 - The word "specifically" replaced by "specially" (typographical error)
Amended paragraphs: 172
06 December 2012 - The word "footngs" replaced by "footings" (typographical error)
Amended paragraphs: 85
06 December 2012 - In the quote the word "specifically" replaced by "specially" (typographical error)
Amended paragraphs: 22
Decision last updated: 11 December 2012
7
6
5