Environment Protection Authority v Terrace Earthmoving Pty Ltd (No 3)

[2016] NSWLEC 50

Land and Environment Court

New South Wales

Medium Neutral Citation:	Environment Protection Authority v Terrace Earthmoving Pty Ltd (No 3) [2016] NSWLEC 50
Hearing dates:	19 November 2013
Date of orders:	05 May 2016
Decision date:	05 May 2016
Jurisdiction:	Class 5
Before:	Craig J
Decision:	Refer to [165-167]
Catchwords:	OFFENCES – prosecution – transportation of waste to place not lawfully used as a waste facility – demolition materials transported from building sites to rural property for use as a road-base – whether materials unwanted or surplus in the hands of the owner – whether materials waste – whether materials ceased being waste due to pre-transport treatment – whether rural property could lawfully be used as a waste facility – finding that materials were waste – finding that waste was transported – finding that rural property could not lawfully be used as a waste facility – defendants guilty – Protection of the the Environment Operations Act 1997 (NSW), s 143; WORDS AND PHRASES – “waste” – Protection of the Environment Operations Act 1997 (NSW), s 143; WORDS AND PHRASES – “waste facility” – Protection of the Environment Operations Act 1997 (NSW)
Legislation Cited:	Criminal Appeal Act 1912 (NSW), s 5AE Environmental Planning and Assessment Act 1979 (NSW), ss 4 and 76A Port Stephens Local Environmental Plan 2000 Protection of the Environment Operations Act 1997 (NSW), ss 48, 143, 144, 169, Sch 1
Cases Cited:	Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404 Blacktown City Council v Pace [2002] NSWLEC 142; 121 LGERA 432 C.B. Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270 Environment Protection Authority v Anning [1998] NSWLEC 129; 100 LGERA 354 Environment Protection Authority v Hardt [2006] NSWLEC 438; 148 LGERA 61 Environment Protection Authority v N (1992) 26 NSWLR 352 Environment Protection Authority v Terrace Earthmoving Pty Ltd [2012] NSWLEC 216 Environment Protection Authority v Terrace Earthmoving Pty Ltd [2013] NSWCCA 180; 84 NSWLR 679 Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 Mouawad v The Hills Shire Council [2013] NSWLEC 165; 199 LGERA 28 Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 Shannongrove Pty Ltd v Environment Protection Authority [2013] NSWCCA 179; 84 NSWLR 668 Shepherd v The Queen [1990] HCA 56; 170 CLR 573 Shire of Perth v O’Keefe [1964] HCA 37; 110 CLR 529
Category:	Principal judgment
Parties:	Proceedings 09/50042 and 09/50043 Environment Protection Authority (Prosecutor) Terrace Earthmoving Pty Ltd (Defendant) Proceedings 09/50044 and 09/50045 Environment Protection Authority (Prosecutor) Geoffrey James Page (Defendant)
Representation:	Counsel: S J Rushton SC (Prosecutor) T G Howard SC (Defendants)   Solicitors: Gordon Plath, Department of Environment, Climate Change and Water (Prosecutor) Mallik Rees Lawyers (Defendants)
File Number(s):	50042-3 of 2009 and 50044-5 of 2009

Judgment

1. Terrace Earthmoving Pty Ltd (the Company) has been charged with the commission of two offences against the provisions of s 143(1) of the Protection of theEnvironment Operations Act 1997 (NSW) (the Act) that prohibits the transport of waste to a place that cannot lawfully be used as a waste facility for that waste. The Company’s sole director, Geoffrey James Page, has also been charged with two offences against the section. The charges brought against Mr Page arise from the same events as give rise to the charges against the Company. If the Company has acted in contravention of s 143(1), Mr Page is also taken to have contravened the section: s 169. All four proceedings have been heard together.

2. The history of these proceedings must be noticed. In a reserved judgment following the conduct of the trial, I found that I was not satisfied beyond reasonable doubt that the substance which the Company was alleged to have transported was “waste” within the meaning of s 143(1) of the Act (Environment Protection Authority v Terrace Earthmoving Pty Ltd [2012] NSWLEC 216) (Terrace No 1). However, in the event that I so found, the prosecutor requested that I refrain from entering verdicts of not guilty as it wished to exercise its right under s 5AE(1) of the Criminal Appeal Act 1912 (NSW) to submit questions of law for determination by the Court of Criminal Appeal. As the section required, I acceded to that request.

3. Questions of law were formulated and subsequently submitted to the Court of Criminal Appeal for determination. Those questions were determined by that Court and the proceedings returned to this Court to be determined in accordance with the answers given (Environment Protection Authority v Terrace Earthmoving Pty Ltd [2013] NSWCCA 180; 84 NSWLR 679) (Terrace No 2). The answers to the questions posed for that Court, read with the Court’s reasons, determined, in substance, that in Terrace No 1 I had erred in the manner in which I interpreted and applied the statutory definition of “waste” to the facts that I found.

4. Briefly stated, the alleged offences arose from the construction by the Company of an internal access road on a rural property. Materials used to construct the road were obtained from various sites upon which the Company was engaged to carry out building demolition or excavation. Material obtained from those sites was transported to the rural property where it was tipped and compacted into the excavation made for the road.

5. In order finally to determine the outcome of the present prosecutions, the decision of the Court of Criminal Appeal and the answers given by it to the stated questions left open the following issues for determination by me: (i)   whether the materials transported to the property were unwanted or surplus in the hands of the owner of those materials on the land from which they were taken (Terrace No 2 at [58]); (ii)   if so, whether the materials transported to the property were processed, re-used, recycled or recovered prior to transportation in a manner that caused them to cease to be waste within the meaning of the Act (Terrace No 2 at [59]); and (iii)   whether the rural property to which they were transported was a place which could not lawfully be used as a waste facility for that waste (Terrace No 2 at [60]).

The charges

6. Details of the charges brought in each proceeding are set out at [12]-[15] of Terrace No 1. I do not repeat all of that detail. For present purposes it is sufficient to record that in proceedings 50042 of 2009 the Company is charged with the offence against s 143(1)(a) in that it transported waste contrary to the provisions of the section “from about 23 November 2005 to 30 April 2006 inclusive”. The place to which the waste was transported is identified as Lot 132 in DP 609165 and known as 168 Cabbage Tree Road, Williamtown.

7. The charge against the Company in proceedings 50043 of 2009 alleges that the offence against s 143(1)(a) of the Act occurred “from about 1 May 2006 to 1 March 2007 inclusive”. Otherwise, the particulars given for that offence are identical to those given for the charge in proceedings 50042 of 2009.

8. In proceedings 50044 and 50045 of 2009 Mr Page is charged in that he committed an offence against s 143(1)(a) by reason of s 169(1) of the Act. In the former proceedings the offence is alleged to have occurred “from about 23 November 2005 to 30 April 2006 inclusive” while the date of the commission of the latter offence is alleged to have been “from about 1 May 2006 to 1 March 2007 inclusive”.

9. Otherwise, the particulars given in respect of each offence are the same. Those particulars allege that Mr Page was a director of the Company (accepted by him as being the case) and that the Company “transported waste to a place that could not lawfully be used as a waste facility for that waste”.

10. In essence, the terms in which the two charges against each defendant have been brought are the same, save for the dates identified in each charge. The separation of the charges has occurred because s 143 of the Act was amended, with effect from 1 May 2006.

11. As will be seen, not only was there amendment to the terms in which the offences created by s 143(1) were framed, there were two further amendments of present relevance. First, the maximum penalty prescribed for the offence in the case of a corporation was increased on 1 May 2006 from $250,000 to $1,000,000. Second, the definition of “waste” in s 143(4) was deleted so that the only definition of that term was that expressed in the Dictionary.

12. By reason of these amendments and the manner in which the charges have been framed to accommodate them, 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”.

Statutory provisions – first charge period

13. During the first charge period, s 143 of the Act relevantly provided:

“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:

(a)   in the case of a corporation - $250,000, or

(b)   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:

…

owner of waste includes, in relation to waste that has been transported, the person who was the owner of the waste immediately before it was transported.

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.”

14. During the first charge period, s 169 of the 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 provision, 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.

…”.

15. In addition to the definition of “waste” in s 143(4), the Dictionary to the Act also contained a definition of that same term. While the prosecutor had contended to the contrary, I held in Terrace No 1 at [174] that for the purpose of construing the provisions of s 143(1), the definition in subs (4) was the only relevant definition, with the consequence that the Dictionary definition had no application to that section. The Court of Criminal Appeal in Terrace No 2 held at [23] that I was correct in so determining.

Statutory provisions – second charge period

16. As from 1 May 2006 and during the Second Charge Period, s 143 of the 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.”

17. As I have earlier stated, the amending legislation amended subs (4) of s 143 by deleting the definition of “waste”in that subsection. At the same time, the definition of “waste” in the Dictionary was amended so that it read:

“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 the 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 the 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 reprocessed, recycled, re-used or recovered.”

18. The provisions of s 169 of the Act were also amended from 1 May 2006. However, the amendments do not, for present purposes, make any material alteration to the provisions of the section as I have earlier quoted them. Paragraph (a) of subs (1) was deleted by the amendment. Mr Page accepts that there is no change of substance as it affects the charges brought against him.

Relevant evidence

19. Evidence directed to the agreement to construct an internal access road at 168 Cabbage Tree Road, Williamtown (Lot 132), steps taken to construct that road and the source of materials for that construction is stated in detail at [33]-[128] of Terrace No 1. I do not intend to repeat that evidence for the purpose of this judgment. However, I will identify aspects of that evidence relevant to the issues that I have earlier stated and otherwise necessary for the disposition of these proceedings. Where appropriate, that detailed evidence will be identified by paragraph number in Terrace No 1 when referred to in this judgment.

20. During both charge periods, Lot 132 was occupied by Mario Ciccanti and his wife. The land was apparently owned by Mrs Ciccanti. It was as a result of agreement reached with Mr Ciccanti that the internal access road on Lot 132 came to be constructed by the Company.

21. Lot 132 was a long, narrow lot having an area of about 20.3 hectares. The central section of the Lot was low lying often wet and liable to flood inundation. Indeed the tree species growing in the central section of the property were said to be species that are tolerant of wet soil and low level water inundation for lengthy periods. The purpose of the proposed internal road was to provide, so far as possible, all-weather access for vehicles from the front portion of the property where the dwelling was located, through the central low lying section to the rear elevated area of the Lot.

22. Precisely when agreement was reached between Mr Ciccanti and Mr Page on behalf of the Company is not revealed in the evidence. However, prior to commencing work on the internal road construction, Mr Page visited Lot 132 and discussed the proposed works with Mr Ciccanti. That discussion included a conversation recorded at [61] as follows:

“61   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.’”

23. It is common ground between Mr Ciccanti and Mr Page that work commenced in late November 2005 and that the materials to be used for road construction, at least for road base, would be brick, broken concrete and tiles obtained from sites upon which the Company was carrying out its other business activities, a further description of which I will give in due course. It is also common ground that under the agreement for construction of the road, Mr Ciccanti was not required to make any payment to the Company, either for the material that it supplied or for the work that it undertook, subject to Mr Ciccanti paying for the purchase and installation of a drainage pipe to be installed along a drainage line over which the constructed road was to pass (at [63]).

24. Once work on the road had been commenced by the Company, progress was intermittent rather than constant. The general construction method involved excavation for a section of the road, followed by materials being brought to the site by the Company, tipped into the excavated section and then compacted. This intermittent approach to road construction was consistent with the statement by Mr Page on behalf of the Company at the time at which agreement was reached, to the effect that when Mr Page encountered “good fill” he would bring it to the site for the purpose of constructing the road (at [93]-[94]). Delivery of material and construction work was generally undertaken by any one or more of Mr Page, his brother Kelvin Page, his son Phillip or two casual employees of the Company who worked as truck drivers. Both Kelvin and Phillip were employees of the Company. As an indication of the pace at which work proceeded, the evidence showed that although work commenced in about November 2005, as of May 2007 when work ceased, construction of the road had not been completed.

25. The evidence of Mr Page is derived from a sound recorded interview with investigators employed by the prosecutor (Exhibit A). In that record of interview, Mr Page described contract work undertaken by the Company during both charge periods as covering everything “from site excavations, to clearing, to demolition, to dams, wells, hammer-work, and mulching”. He stated that demolition work mainly involved the demolition of houses which, at times, included demolition of driveways and work involving the removal of concrete footings (at [84]-[85]). That work was usually undertaken in the greater Newcastle area.

26. Much of the demolition work carried out by the Company was undertaken in conjunction with companies or businesses holding the necessary licences to remove asbestos from building sites prior to a building being demolished. The company was not licenced to carry out demolition of a building without the authority of a contractor licenced to remove asbestos. Only after the asbestos contractor had certified the demolition site to be “clean”, meaning that the removal of asbestos (if present) was completed, did the Company commence or complete the process of demolition.

27. In his record of interview, Mr Page stated that most of the material taken to Lot 132 for road construction was material that came from demolition sites for which the Company was contracted to carry out demolition. Contracts for demolition generally required the removal of demolition material from each site.

28. The process of dealing with the demolition materials during both charge periods was described by Mr Page. He stated that once the building to be demolished was “on the ground”, the material that the Company was required to remove was inspected and separated by employees of the Company 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 the Company to a licenced waste facility.

23. The process of separation, however, enabled identification of materials that were considered by the Company’s employees to have construction value. Demolition material falling into this category were bricks, concrete and, depending upon their location within the building prior to demolition, clay tiles and clay pipes. Concrete demolished or removed from driveways or from building footings was usually separated from other materials and broken up at the demolition site before being removed. Bricks or masonry forming part of the demolition material were not subject to any further process on the demolition site.

24. Once the materials of construction value had been identified and set aside, they were loaded onto trucks and taken to Lot 132. The material destined for a licenced waste facility were loaded and transported separately from the materials that were considered to have value for construction purposes.

25. At some demolition sites on which demolition work was undertaken during this period, material described as “roadamil” was encountered in conjunction with driveway demolition. This material was described as being a finer material like hot mix used for road or driveway surfacing (at [101]). Mr Page described the material as “the best stuff you can put on top of the fill material” for a road. Some of that material was among the materials selected by the Company and taken to Lot 132 as a surface material placed over the larger concrete pieces used to form a road base.

26. In addition to the materials already identified, the records of the Company disclose that during the charge periods, soil and rock from sites upon which excavation was taking place was also taken to Lot 132. This soil and rock was also used in the construction of the access road.

27. Much of the demolition work carried out by the Company during both charge periods was undertaken in connection with a company that traded by the name of Novocastrian Demolition (Novocastrian). The sole director of Novocastrian was Michael Curran whose evidence in the form of a sound recorded interview with investigators for the prosecutor was tendered in evidence without objection from either defendant. Mr Curran was also called to give evidence at trial. He confirmed the close working relationship between Novocastrian and the Company.

28. Mr Curran stated that Novocastrian, as the holder of a licence to remove asbestos, was generally engaged in demolition projects where the presence of asbestos was known or suspected. The focus of his company’s work was upon demolition of small to medium sized buildings that had generally been used for domestic purposes. While Novocastrian had sufficient equipment to carry out tasks required for asbestos removal, its equipment was generally insufficient to complete the demolition process and to remove material, other than asbestos affected material, from the demolition site. For this reason, he worked closely with the Company, whose resources and equipment enabled it to complete the process of demolition and remove all demolition material. Demolition projects for which Novocastrian was retained generally involved scheduling an initial period for asbestos removal after which the Company was brought in to complete the unfinished demolition process and remove those materials from the demolition site that were identified by Mr Curran for removal (at [114]). Once the demolition process was complete, the Company was left to sort, load and remove the material so identified.

29. The evidence that I have thus far summarised was the evidence that led me to state in Terrace No 1 at [8]:

“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.”

36. Unsurprisingly, the proportions in which each category of material taken to Lot 132 is not identified in the evidence. Obviously, the Company would have had no reason during the charge period to identify those proportions. However, to the extent that it is relevant and based upon the evidence of Mr Page, it would appear that the greater proportion of those materials comprise the broken concrete, bricks, tiles and broken pipes sorted at and removed from demolition sites at which the Company was engaged to carry out work. More specifically, taking account of all the evidence, the finding that I made at [164] was in the following terms:

“Based on the evidence to which I have earlier referred, I am satisfied beyond reasonable doubt that Terrace, through its employees as nominated by Mr Page, did transport a substance from various sites in the Greater Newcastle Area to Lot 132. The “substance” so transported by Terrace is established beyond reasonable doubt as having comprised crushed rock, broken tiles, broken concrete pieces, broken inert material in the nature of tiles, sections of clay pipe together with road base material known as ‘roadamil’.”

The decision of the Court of Criminal Appeal

37. At the time of delivering judgment in Terrace No 2 the Court of Criminal Appeal also delivered judgment in Shannongrove Pty Ltd v Environment Protection Authority [2013] NSWCCA 179; 84 NSWLR 668. The latter case involved an appeal against conviction for an offence against s 143(1) of the Act. Like the present case, that appeal raised questions as to the meaning of “waste” in the subsection during charge periods both before and after the amendments to the Act that took effect on 1 May 2006. Thus, the issues considered by the Court of Criminal Appeal were the same in both cases.

38. In addressing the definition of “waste” in s 143(4) during the first charge period, Basten ACJ (Hall J and Barr AJ agreeing) said in Shannongrove at [29]:

“Viewed in isolation, the language of s 143(4) would be understood to refer to substances which were unwanted by their owner, or surplus to the needs of the owner. While they might cease to be waste at some point if reprocessed, reused or recycled, the fact that such a course may be undertaken in the future by another person, would not prevent the substance being waste in the hands of the owner and hence at the point at which transportation commenced.”

39. His Honour cited that passage when stating in Terrace No 2 at [25] that, correctly applying the definition of “waste” in s 143(4), it was necessary to consider “whether the owner of the material at the time transportation commenced had a continuing use for the material”. His Honour continued by stating that if the owner did not have such a use for the material, it was and remained waste, at least until applied to a new use. He continued in Terrace No 2 at [26]:

“In ordinary parlance, waste refers to unwanted by-products of a process and to an object (or substance) which the owner had, but no longer has, a use for and discards or abandons. In respect of the first category, being unwanted by-products of a process, the question is not whether they are “capable” of being used for some other purpose, nor whether there is a “market” for such material. Similarly, in relation to items for which the owner had, but no longer has, a use, the question is not whether some other person might conceivably want the item.”

40. The meaning of the words “unwanted” and “surplus” in the definition of “waste” does not turn on any objective characteristic of the substance or material but require reference to the state of mind of the person who is the “owner” of the substance or material “when transportation was arranged” (at [28]). The circumstance that both the person who transports the substance and the owner of the substance to be transported (or after 1 May 2006 the person who causes or permits the material or substance to be transported and the owner) is guilty of an offence against s 143(1) confirms that understanding of the definition in s 143(4). The fact that the substance or material transported was “wanted” by the carrier because that constitutes its business or is “wanted” by the user of that substance or material at the destination to which it is transported does not render that material something other than waste (at [28]).

41. The effect of s 143(1) is to prohibit the transport of waste to a place other than a “waste facility”. A facility of that description is defined in the Dictionary to the Act to mean “any premises used for the storage, treatment, reprocessing, sorting or disposal of waste (except as provided by the regulations)”. From 1 May 2006, the definition referred to “processing” rather than “reprocessing”. It follows, that a substance or materials being taken to a place where either of them will be (re)processed, re-used or recycled does not affect the characterisation of that substance or material as “waste” at the time of and during transportation to that place (at [30]-[31]).

42. In a statement of significance for present purposes, Basten ACJ said at [33]:

“The fact that the material might have resulted from activities undertaken by the respondent did not change that character, nor did the mere fact that the respondent sorted them on site. There is a difference between reprocessing, re-use or recycling, prior to transportation and merely identifying material which is capable of being reprocessed, re-used or recycled. The latter step merely identifies it as material (or a substance) which is capable of such re-use etc: it then falls within the second sentence of the definition of “waste”. The steps taken in the present case were not sufficient to prevent it being waste at the time of transportation. “Sorting” the materials to set apart those which were to be re-used at a another place [sic] did not itself constitute that use, anymore than the separation by a residential landowner of materials into different forms of recycling for collection would have that effect.”

43. While the variations in the definition of “waste” that occurred between the first charge period and the second charge period were discussed in both Shannongrove and Terrace No 2, Basten ACJ stated at [39] in the latter case that “[g]enerally speaking, the changes expanded or clarified, but did not restrict, the scope of the definition”. He concluded that if the elements of the charge were established for the first charge period, there being no change in the manner in which the Company conducted its activities between the two periods, it followed “that the second charge must also be made out” (at [39]).

44. The discussion that I have outlined from the judgments of the Court of Criminal Appeal, directed to the meaning of “waste” in s 143(1) during each charge period, provides the context in which that Court answered the questions of law submitted to it under s 5AE of the Criminal Appeal Act. For present purposes, it is appropriate to identify two of the specific answers given by that Court to the questions stated, as those answers draw together the discussion to which I have referred.

45. In response to three questions (Questions 1, 3 and 8) that were, in substance, directed to the meaning and application of the term “waste” during the first charge period, the Court’s answer was as follows:

“(3) On the proper construction of the Act, whether a substance was ‘waste’ for the purposes of s 143(4) required the court to consider whether the substance being transported was unwanted or surplus by and to the owner of the waste immediately before it was transported. That question of fact was to be determined without reference to whether, because of its nature, the substance might be reprocessed, re-used or recycled. The other factors referred to in questions 1 and 3 were irrelevant except to the extent that their consideration might provide evidence of the state of mind of the owner of the land on which the substance existed immediately prior to transportation.”

46. Reading that answer in the context of the discussion found in the reasons for judgment, reference to “the owner of the land” in the last sentence of that answer would be appear to be intended to be a reference to the owner of the substance “immediately prior to transportation”. Because the facts of the present case involved waste materials from demolition of buildings, the assumption would appear to have been made that the owner of the land was also the owner of the substance or material that was transported from the land. However, this is a topic that I will address further when considering the first of the three issues that I have identified.

47. Questions 2 and 4, collectively referred to as (5) in the Court’s formal answers and the answer to those questions should be quoted in full:

“(5)   Questions

2.   Was it open on the facts found by me to hold that in determining whether the substance was ‘waste’ within the meaning of paragraph (b) of the definition in the Dictionary to the POEO Act during the Second Charge Period the determination made by me in relation to the definition of ‘waste’ in the First Charge Period remained apposite?

4.   In determining whether the substance was ‘waste’ within the meaning of paragraph (b) of the definition in the Dictionary to POEO Act during the Second Charge Period should I have held that the only factors for consideration were:

(a)   the nature of the substance; and

(b)   whether the substance was ‘discarded, rejected, unwanted, surplus or abandoned’ in the hands of the owner or generator of that substance?

Answer:

The meaning of the term “waste”, as defined in the Dictionary to the Act on and from 1 May 2006, was to be addressed having regard to the whole of the definition and the context in which the word appeared in s 143(1).

In undertaking that exercise,

(a) paragraph (a) provided little or no assistance in defining the term for the purposes of s 143(1);

(b)   the words ‘discarded’, ‘rejected’ and ‘abandoned’, describe characteristics of a substance by reference to an action of the owner which may assist in determining whether the substance was ‘unwanted’ or ‘surplus’ in the hands of the owner;

(c)   a substance will remain waste even though it is intended to be sold, recycled, processed, recovered or purified by a separate operation from that which produced the substance and will remain waste until one of those steps is taken.”

48. Those answers will inform the manner in which I approach consideration of the issues earlier identified.

Issue 1:   Material unwanted or surplus in the hands of the owner of the waste prior to transportation

49. By reason of the manner in which I interpreted the definition of “waste” as it applied during each charge period, I held that factors beyond the apparent desire of the owner of the material, or the owner of the land from which that material was transported, were relevant when determining whether the material in question was “waste”. I stated that other factors to be considered included steps taken by the transporter in respect of the material prior to transportation and the fact that the material could be deployed for a useful purpose at their destination. As the decision and answers to the stated questions given by the Court of Criminal Appeal reveal, I was wrong to do so. However, in order to address the competing submissions of the parties, it is necessary to record the manner in which I applied the definition to the evidence adduced before me.

50. At [228] of Terrace No 1, I addressed par (b) of the definition of “waste” as expressed in the Dictionary to the Act during the second charge period. I noted that in par (b) of the definition, the words “unwanted” and “surplus” are the same words that had been used in the definition found in s 143(4) prior to amendment of that section on 1 May 2006. In that context I then said in [229]:

“229   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 materials 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.”

51. That particular paragraph was referred to by Basten ACJ in Terrace No 2. At [58] his Honour said:

“58   It was apparently accepted at [229], although without making a precise finding, that the substances transported to the Williamtown property were unwanted or surplus in the hands of the owners of the land from which they were taken. It is difficult to envisage, on the basis of the evidence discussed by the trial judge, that any other finding could be made, but it is appropriate that the matter be returned to the Land and Environment Court for that step to be taken.”

52. His Honour’s observation that I appeared to have accepted that the materials transported to Lot 132 “were unwanted or surplus in the hands of the owners of the land from which they were taken” is undoubtedly a reference to my statement that those materials were “discarded”, in the sense that they were “cast aside” by the owner of the land from which they were taken. My reference to those materials being “cast aside” was to identify the ordinary meaning of the word “discarded” (Macquarie Dictionary Online).

53. Reference in [229] to “the owner of the land on which [the materials] were initially located” was made to reflect the fact that as those materials had been components of a building erected on the land from which they were taken, the owner of the land was also the owner of the materials, at least prior to the demolition of the structure of which they were a component. As I have earlier stated, I also take that to be the sense in which Basten ACJ referred to “the owners of the land” as if those owners were, in the circumstances, also the owners of the demolition materials.

54. The defendants contend that the issue of ownership is to be addressed by reference to the owner of the transported material immediately before it was transported. They do so by relying upon the first sentence of Answer (3) to Questions 1, 3 and 8 posed for determination by the Court of Criminal Appeal. On the basis that they are correct in so submitting, the defendants contend that the present issue, properly framed, is whether the prosecutor has proved beyond reasonable doubt that the materials transported to Lot 132 were unwanted or surplus in the hands of the owners of that material “immediately prior to transportation”.

55. To the extent that the submission of the defendants makes it necessary to identify the owner of materials at the moment preceding transportation of that material, I do not accept that submission. The submission does not accurately reflect the determination made by the Court of Criminal Appeal.

56. If reliance is to be placed solely upon Answer (3) given by that Court, then it is necessary to read the answer as a whole. As is apparent, the third sentence of the answer makes reference to “the state of mind of the owner of the land” on which the materials or substance “existed immediately prior to transportation”.

57. Identification of the owner of the materials whose state of mind is relevant for the purpose of determining whether those materials are “unwanted” or “surplus” is expressed in different terms by the Court of Criminal Appeal not only within Answer (3) but otherwise in both the judgment in Terrace No 2 and also in Shannongrove. Paragraph (b) of Answer (5) in Terrace No 2 states that the words “discarded”, “rejected” and “abandoned” in the Dictionary to the Act identify characteristics of a substance “by reference to an action of the owner which may assist in determining whether the substance was ‘unwanted’ or ‘surplus’ in the hands of the owner”. No point in time at which the action of the owner in relation to the substance is stated in that answer for the purpose of considering whether the substance was unwanted or surplus.

52. Particular reliance is placed by the defendants on [25] of the judgment in Terrace No 2 because it is said to be consistent with the first sentence in Answer (3). In [25] Basten ACJ stated that the “correct approach” to the categorisation of material or a substance as “waste” gave rise to the need to consider “whether the owner of the material at the time transportation commenced had a continuing use for the material”. For the purpose of giving effect to the words “unwanted” and “surplus” as used in the definition of “waste” in both s 143(4) and in the Dictionary, his Honour identified at [27] three possible individuals whose state of mind could be relevant, namely “the owner immediately prior to transportation”, “the person carrying out the transportation” or “the owner of the property to which the substance is transported”. He continued by stating at [28] that the “ordinary reading of the provision is that the relevant individual is the ‘owner’ when transportation was arranged”. That identification of the relevant person is not, in those terms, one that necessarily carries with it the immediacy of ownership at the moment before transportation commences.

53. Moreover, at [32], following discussion as to when “that which is waste in the hands of the former owner ceases to be waste”, his Honour observed “that the material transported was unwanted by the original owners, appears to have been accepted: the respondent was employed by the owners to remove the material”. His Honour proceeded at [33] by stating that the character of the material the subject of consideration did not change because it “resulted from activities undertaken by the respondent”. I have earlier quoted that paragraph in full.

54. The fact that in the same sentence of [33] his Honour addresses “activities undertaken by the respondent” separately from “the mere fact” of sorting on site, suggests to me that when addressing ownership in this context it is necessary to consider that concept by reference to the nature and form of the substance or material in question prior to intervention by that person whose function it is to change that form, intending its removal to another place. Such an approach is, so it seems to me, consistent with the statement in [45] of Terrace No 2 where reference is made to the “preferred construction of the definition” in the Dictionary during the second charge period “namely that where the material is unwanted in the hands of the original owner, it is waste and will remain waste until processed, recycled, re-used or recovered” (emphasis added).

55. I have earlier quoted [29] from the judgment of the Court of Criminal Appeal in Shannongrove. That paragraph, particularly the second sentence, would support my understanding of the Court’s decision that it is the state of mind of the owner of material or substance that potentially becomes waste that is relevant, rather than that of the individual to whom property in the material may have passed for the purpose of removing and disposing of that material from its original site.

56. Reference has already been made to the observations of Basten ACJ at [58] of Terrace No 2, directed to the need to make formal findings, consistent with my observations at [229] of Terrace No 1, that the substances transported to Lot 132 were unwanted or surplus in the hands of the owners of the land from which they were taken. His Honour continued at [59] by stating that “if such a finding were made in respect of the original owner of the material”, a further finding would be required to the effect that the “unwanted” or “surplus” materials “were not processed, re-used or recycled prior to transportation in a manner which caused them to cease to be ‘waste’” (emphasis added). His Honour observed in the same paragraph that “on the evidence discussed in the judgment, it would appear unlikely that any other conclusion could be reached than that the material was ‘waste’ when it was transported to [Lot 132]”. Again, the reference to the original owner would appear to have been made to identify the person whose state of mind is required for the purpose of determining whether the material fell within the definition of “waste” during either charge period.

57. Understandably, the defendants rely upon the answers formulated by the Court of Criminal Appeal as responding, in precise terms, to the questions posed. Accepting that the answers given are intended to be crafted with care and precision, the conciseness with which they would necessarily be stated does not require that the reasons for decision be ignored for the purpose of understanding those answers. The answers are informed by the reasons, as [57] of the judgment in Terrace No 2 clearly states.

58. Having regard to the manner in which the owner of the substance transported has been identified in the judgment of the Court of Criminal Appeal, including the responses it gave to the stated questions, I conclude that the owner whose state of mind is relevant to be considered is the person who had property in and exercised domain over the substance or material prior to the actions of the person who took possession for the ultimate purpose of removal from the site upon which the substance or materials originated. It is the former who is “the original owner of the material” in the sense intended by the Court of Criminal Appeal by use of that phrase.

59. Although there is overlap in the defendants’ submissions directed to the issue presently being addressed and the second issue that I have identified, there are essentially two bases upon which the defendants contend that the prosecutor has failed to establish to the requisite standard that the material transported by the company was “waste”. First, it is submitted that the material transported has not been demonstrated to be unwanted or surplus in the hands of “the owners of the substance immediately prior to transportation”. Second, they contend there is an absence of proof as to the identity of the owner of the substance “immediately prior to transportation” for the purpose of determining the relevant state of mind that the substance or material was “unwanted” or “surplus”.

60. I have already addressed the concept of the “owner of the substance immediately prior to transportation”, as I understand the use of that expression by the Court of Criminal Appeal. What is clear beyond doubt is that the Court dismissed, as being of any relevance, the state of mind of the transporter of the substance or material.

61. The evidence relevant to the manner in which the transported material was considered at its site of origin can be deduced from the following summary of evidence:

(i)   most of the material transported to Lot 132 came from demolition sites at which the Company was contracted to work, being sites that the Company “did the demolition from” (Exhibit A, Record of Interview, Q & A 182-183);

(ii)   the Company’s business was as a contractor, undertaking excavation, demolition and clearing work, with demolition work generally involving demolition of homes or residential buildings (see [25] above);

(iii)   at the time of agreeing to construct the road on Lot 132, Mr Page, on behalf of the Company, told Mr Ciccanti that the Company would have “bricks and concrete” that it needed “to get rid of” (Terrace No 1 at [61]);

(iv)   materials taken to Lot 132 generally comprise crushed rock, broken tiles, broken concrete pieces, broken clay pipes, bricks, soil and ‘roadamil’, all from sites at which the Company was carrying out or had carried out demolition or excavation work;

(v)   on demolition sites the work sequence generally involved a contractor first removing asbestos, if any, and only when that work was complete was the Company given access to complete demolition and remove demolition materials (Terrace No 1 at [96]);

(vi)   according to the evidence of Mr Curran from Novocastrian, demolition material to be removed by the Company was identified by him (Terrace No 1 at [114]);

(vii)   Mr Page stated in his record of interview that the demolition contracts entered into by the Company generally required that the Company load and remove demolition material from the demolition site (Terrace No 1 at [96]);

(viii)   once the Company entered a demolition site to complete demolition and remove material from that site, it was for Mr Page or other employees of the Company to select from the totality of the demolition rubble those materials to be transported to a licenced waste facility and those it wished to transport to another destination because those acting on behalf of the Company considered the material could be utilised by the Company in a different way: material in the latter category was material transported to Lot 132 and used for the internal road construction, albeit at no cost to Mr Ciccanti; and

(ix)   where material was excavated from a site upon which the Company contracted to undertake excavation work, that material was removed because it was not needed on that site in order to give effect to the project that the principal contractor had been engaged to undertake (Terrace No 1 at [207]-[208]).

68. In the case of material from demolition sites, the fact that the material had, immediately prior to demolition, been a component of or attached to a structure to be demolished, left no doubt that the entity exercising domain over the site on which the structure stood or the owner of the structure itself (if different) did not want the materials that resulted from demolition. Relevantly, that must be the case in respect of the demolition materials loaded and transported by the Company, as the obvious intent of the site or structure owner was to have the structure demolished and the resulting material removed from the site, leaving it to the Company to elect the ultimate destination of that material.

69. Equally, the facts directed to excavated material make clear that the entity exercising domain over the site from which that material was excavated did not want that material, the possession of which was given to the Company to transport it from the excavation site. Once possession of the material was given to the Company for removal, the site owner or those acting on behalf of the owner in relation to the excavation, exercised no control over the material, leaving it to the Company to elect the destination to which it was to be transported. No other rational inference as to the owner’s intent in respect of that material transported by the Company to Lot 132 is open on the evidence.

70. In summary, the evidence to which I have referred above and that found in more detail in Terrace No 1 (particularly at [96]-[126]) clearly establishes that in each case the Company was required to transport material from demolition or excavation sites in order to fulfil its contract. The Company was engaged for that purpose because the material it was contracted to transport was not wanted on the site of origin by the entity or those acting on behalf of that entity who contracted to have the material removed.

71. The defendants submit that the prosecution has failed to prove, as it was required to do, the identity of the owner of the material prior to transportation. They contend that the most likely hypothesis is that it was the Company who owned the material “immediately prior to transportation or, at least, such hypothesis had not been excluded”.

72. The defendants point to the evidence given by Mr Curran and other contractors whose evidence was led by the prosecutor. That evidence indicated that the entity contracting with the Company for works during each charge period varied among the landowner, the principal building contactor responsible to implement a particular project for a site or another contractor retained to carry out some part or component of a building project, such as was the case from time to time with Novocastrian. They submit that while the state of mind of the site owner, if known, may be considered when determining whether material was unwanted or surplus, contractors to whom the Company was subcontracted, could not be assumed to reflect the site owner’s state of mind in relation to the material that the Company was contracted to transport.

73. While the state of mind of “the owner” is, as the Court of Criminal Appeal stated, the relevant state of mind to be considered, the identity of the particular “owner” is unnecessary to be proved. As the prosecutor submits, the relevant question is whether the prosecutor has established that the material or substance transported was “unwanted” or “surplus”. That determination does not mandate search for or interrogation of a particular individual. Just as the nature of the materials themselves may give rise to an inference that particular material is unwanted (Terrace No 2 at [27]), so also may the overt actions of the entity who “arranged” the transportation of material demonstrate the relevant state of mind.

74. Where, as here, the material is the product of demolition or excavation, the circumstance that demolition or excavation coupled with the requirement for transportation, being an arrangement made in the ordinary course of business, sufficiently demonstrates the state of mind of the original owner of the material. The engagement of the Company by the site or structure owner to undertake excavation or to demolish a structure and, in each case, to transport demolition or excavation material from the site, is a sufficient manifestation of the state of mind of the owner that the material was unwanted or that it was surplus to the needs of that owner. The evidence of Mr Curran was that in some cases, the Company was engaged by the owner of the site upon which demolition work was to be undertaken.

75. The evidence of Mr Smith, Mr Mcleod and Mr Lehman, all of who were building contractors, indicated that the Company was engaged on sites on which they were involved by the principal contractor for the project on that site who, I infer, was one of the respective companies that they controlled. The circumstance that another contractor may have engaged the Company to carry out demolition or excavation work, including removal of material from the site in question, does not detract from the state of mind “of the original owner” implicit in that engagement, namely that the material produced by demolition or by excavation was unwanted or surplus. As that engagement occurred in the ordinary course of business between the contracting parties, it must properly be assumed that the contractor engaging the services of the Company was acting within the scope of his, her or its authority, thereby reflecting the state of mind of the site or structure owner. I do not accept that the prosecutor was required to establish that, in giving possession of materials to the Company, the contractor was not acting unlawfully or outside the terms of any contract with the structure owner.

76. The evidence to which I have referred leaves open no other reasonable hypothesis as to the state of mind of “the original owner” of the material transported by the Company. The circumstance that on one occasion the owner of a site at which the Company was carrying out excavation work thought that some of the excavated material transported by the Company to Lot 132 might be of value to Mr Ciccanti is of no present relevance. That material was clearly “unwanted” by the site owner and was therefore waste.

77. For these reasons, I am satisfied beyond reasonable doubt that material transported to Lot 132 by the Company, being demolition material comprising bricks, broken concrete, broken tiles, broken sections of clay pipe and material known as “roadamil”, from sites on which the Company was contracted to carry out demolition work, was material that was unwanted in the hands of either the owner of the site or the owner of the structure required to be demolished. I am also satisfied beyond reasonable doubt that excavation material transported to Lot 132 by the Company, being material that was excavated from sites on which the Company was contracted to carry out excavation work and removal of excavated material, was material that was surplus or unwanted in the hands of the owner of the site.

78. Contrary to the submission of the defendants, there is no rational hypothesis upon which to conclude that the Company was the owner of the materials in question “immediately prior to their transportation” to Lot 132 in the sense intended by the Court of Criminal Appeal. While the Company clearly had possession and, so it seems, title to the material at the moment before transportation commenced, it was not the “original owner” of the material nor was it the owner of that material “when transport was arranged”. To acknowledge an hypothesis consistent with that advanced by the defendants would be contrary to the determination made in Terrace No 2 as to the identification of the owner of material whose state of mind is relevant for the purpose of determining whether the material is “unwanted” or “surplus” within the meaning of “waste” during each charge period.

Issue 2: Material processed, re-used, recycled or recovered

79. The defendants submit that the prosecutor has not excluded a further rational hypothesis, namely that the landowner did not turn his, her or its mind to the question “of whether that material was wanted or unwanted, useful or surplus”. It is suggested that contractual terms between the landowner and the principal contractor for whatever project was being carried out on a particular site may have resulted in no attention having been given by the owner to the ultimate ownership of the materials. Other alternatives are advanced, dependent upon the terms of the contractual arrangement between owner and principal contractor. In those circumstances, so it is submitted, the prosecutor can only ask the Court to speculate as to what might be the case and that is an insufficient basis, in a criminal prosecution, to satisfy the necessary onus of proof.

80. I do not accept that submission, essentially for reasons that I have already given. Advancing an hypothesis in a case of the present kind can only be considered as one that the prosecutor must exclude if it is an hypothesis that is reasonably open on the evidence and is one consistent with innocence (Shepherd v The Queen [1990] HCA 56; 170 CLR 573 per Dawson J at 579).

81. I do not accept that the hypotheses advanced by the defendants are readily open on the evidence. It must be remembered that the evidence adduced includes the record of interview conducted between the prosecutor’s investigators and Mr Page in which he described the general manner in which work was undertaken by the Company during the charge period involving the transport of materials from demolition or excavation sites to Lot 132. That evidence, together with the description by other contractors of work undertaken on a particular site and transportation of the materials from that site by the Company, makes abundantly clear that whatever may have been the intent of the Company for materials leaving the site, the actions of the Company did not involve the processing, re-use or recycling of those materials at the site from which they were transported.

82. The Court of Criminal Appeal has made clear that sorting demolition or excavation material at the site of origin and there selecting material for which the Company may have some use, if transported to another site, does not constitute the processing, re-use or recycling of that material prior to transportation so that the material ceases to be waste.

83. Apart from sorting on the site from which the materials in question originated, the only additional step taken by the Company prior to transportation was the use of equipment onsite to break up some of the already broken concrete or to crush rock from an excavation site prior to transportation of that material.

84. Given that the crushed materials were then mixed with other materials deemed by the Company to be suitable for use on Lot 132, the circumstance that some crushing onsite of a limited number of the materials selected by the Company did not alter the character of the transported material from that which applied to the totality of that material. So much was accepted by the defendants.

79. The defendants submit that even if the materials transported to Lot 132 were otherwise “waste”, they are entitled to rely upon the provisions of paragraph (d) of the definition of “waste”, as expressed in the Dictionary to the Act during the second charge period. It is convenient to repeat that paragraph of the definition, stating that waste includes:

“(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 the circumstances prescribed by the regulations, …”. (Emphasis added.)

86. They submit that all material was “recovered” material, produced wholly or partly from waste, and applied to land. Throughout the period of the second charge period there was no regulation in force prescribing circumstances in which a “recovered substance” produced wholly or partly from waste and applied to land constituted “waste” as defined.

87. To my mind, there is both a textual and a contextual reason why the defendants’ submissions in this regard should not be accepted. First, reference to a recovered substance “produced” wholly or partly from waste indicates that an intermediate step has been taken in respect of the waste in order to bring about its status as a recovered substance before being applied to land. That such an intermediate step is intended by paragraph (d) of the definition is supported by the word “processed”, “recycled” and “re-used” in the same paragraph, indicating some prior action having been taken in respect of the substance, otherwise constituting waste, before being applied to land. The second contextual indicator are the provisions of paragraph (c) in the definition of “waste”. The paragraph provides:

(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 the substance, …”.

88. That paragraph makes clear that a substance that otherwise qualifies as “waste” by reference to paragraph (b) of the definition, does not cease to be waste because it is intended to subject the waste to “recovery” of some substance by some separate “operation”. The structure of the definition makes apparent that only following the “separate operation” that results in recovery of some substance from what is otherwise waste and that is then applied to land will, that substance subject to the regulations, cease to be waste.

89. My reading of the definition in the manner just indicated is consistent with observations of Basten ACJ in Terrace No 2. At [42] his Honour noted the difference in language used between the second sentence of the definition of “waste” in s 143(4) prior to amendment and the final sentence of the definition of “waste” in the Dictionary to the Act after amendment. After noting that paragraph (d) was new to the definition of “waste” when compared to the pre-amendment definition, his Honour continued at [43]:

“This addition is significant: it gives force to the conclusion that where waste has been processed, recycled, re-used or recovered, it will cease to be waste, except in prescribed circumstances. That is consistent with the preferred reading of the second sentence of s 143(4) , namely that the capacity of a substance to be reprocessed etc is not relevant but, by inference, the fact of reprocessing etc is significant and generally terminates the characterisation of the substance as waste.”

90. The latter observations were relied upon by the defendants to submit that while paragraph (d) only applied to the second charge period, the reasoning adopted by his Honour supported a proposition, referable to the first charge period, that the substance being recovered by a process separate from that which created them meant that they were not properly characterised as “waste”.

91. When applied to the facts of the present case, I do not accept that the observations of Basten ACJ have the consequence for which the defendants contend. As his Honour observed at [43] “the capacity of a substance to be reprocessed etc is not relevant”. In the hands of the Company at each site from which materials were transported there was, at its highest, an intention on the part of the Company to recycle or reuse that material. The only separate action or step taken by the Company at the site from which the materials originated was a process of sorting and some crushing. As his Honour made clear at [33], neither the fact that the material in question resulted from activities undertaken by the Company on the demolition or excavation site nor the fact of sorting those materials onsite altered the character of those materials as waste. That was the manner in which they were properly to be characterised for the purpose of the Act at the time of transportation to Lot 132.

92. For these reasons I am satisfied beyond reasonable doubt that prior to their transportation by the Company to Lot 132, the materials that I have found were unwanted by their owners before coming into the hands of the Company for transportation (see [77]) were not processed, recycled, re-used or recovered materials at the time of transportation by the Company. They remained “waste” at that time, being the time to which s 143(1) is directed in each charge period, whatever may have been the purpose those materials were ultimately to serve.

Issue 3: Lawful use of Lot 132 as a waste facility

93. I determined in Terrace No 1 that an offence against s 143(1) during each charge period was completed by transportation of material satisfying the definition of “waste” to a place satisfying the statutory criteria for that place. It was not an essential element of the offence that the transported waste be deposited at the “place” to which it was taken (at [158] and [163]). My decision in that regard was upheld in Terrace No 2 at [38]. My interpretation of the term “waste” during both charge periods rendered it unnecessary to decide whether the statutory criteria relevant to the lawful use of Lot 132 as a waste facility were satisfied. However, as my interpretation of “waste” was wrong, it is now necessary to address this issue.

94. According to the defendants’ submissions, the prosecutor has failed to prove that Lot 132 was a place that could not “lawfully be used as a waste facility” for the waste transported to it. In essence, they contend that the prosecutor has failed both to prove that Lot 132 “was being used as a waste facility for the (alleged) ‘waste’ transported to [it] by Terrace”. They also submit that the prosecutor has failed to prove that lawful authority was required to use Lot 132 as a waste facility for the alleged waste.

95. Before turning to consider these submissions, it is important to notice the facts that are agreed between the prosecutor and the defendants. First, no licence under the Act to use Lot 132 as a “waste facility” was in force during either charge period. Second, the defendants agree that no development consent under the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act) to use the land for the purpose of a waste facility had been issued by Port Stephens Shire Council, the relevant consent authority for the purpose of the EPA Act.

96. In Terrace No 1 I determined that on its proper construction, s 143(1) of the Act required that when considering the “place” to which waste was transported, there is a two limb test to be made to the determination of lawful use of the “place”. At [237] I said:

“Implicit in subsection (1) [of s 143] 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 [of the section] 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) [of s 143] 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.”

97. That determination was not essential to my decision in Terrace No 1 because I had determined that the material transported to Lot 132 was not waste. However, that determination was made contrary to the submission advanced by the prosecutor at trial. It was the subject of Question 9 in the questions posed for determination by the Court of Criminal Appeal in Terrace No 2. However, the Court of Criminal Appeal considered the question “inappropriate to be answered” (at [63]) although in the reasons for judgment of Basten ACJ, his Honour stated at [56] that the result reached by me in this regard was “by no means ‘nonsensical’”, contrary to the submission made to that effect by the prosecutor.

98. While in the present hearing before me the prosecutor maintained that it did not bear an onus directed to the element of “place” under s 143(1) of the Act, “for the purpose of” finalising these proceedings it proceeded on the basis that it did bear the onus that I identified in Terrace No 1. In light of that approach, I will proceed on the basis that the “two limb test” posited by the defendant and accepted by me in Terrace No 1 is the basis upon which I will address this issue.

99. For the purpose of so doing, it is necessary to notice further statutory provisions of particular relevance to this issue. Before identifying those particular provisions, it is convenient to quote again so much of the provisions of s 143(1) and (2) that are of relevance to the present issue. The provisions of the subsections were relevantly the same during each charge period. They provide:

“(1)   Offence

If a person transports waste to a place that cannot lawfully be used as a waste facility for that waste …

(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.” (Emphasis added.)

100. It is the qualification of “place” as being one “that cannot lawfully be used as a waste facility for that waste” that gives rise to the present controversy. The expression “waste facility” was defined in the Dictionary to the Act during both charge periods. In the first charge period that definition was:

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

During the second charge period the word “processing” was substituted for the word “reprocessing” but otherwise the definition remained in the same terms.

101. The term “premises” was defined in the Dictionary during both charge periods to mean:

“premises includes:

(a)   a building or structure, or

(b)   land or a place (whether enclosed or built on or not), or

(c)   a mobile plant, vehicle, vessel or aircraft.”

102. Section 48 of the Act creates a licensing requirement for “scheduled activities”. A “scheduled activity” is defined in the Dictionary to mean “an activity listed in Schedule 1.” Part 1 of Sch 1 lists scheduled activities that are “premises-based”. “Waste facilities” are listed as premises-based activities in Part 1 of the Schedule. The occupier of premises at which a scheduled activity is carried on must hold a licence with respect to that activity: failure so to do constitutes an offence against the Act (s 48(2)).

103. Those waste facilities to which reference is made in Part 1 of Schedule 1 are identified by class. Of present relevance is that class of waste facility identified in par (1)(g) that relevantly provides:

“(g)   landfill or application sites in environmentally sensitive areas, being landfill or application sites that are located in an environmentally sensitive area described in Technical Appendix 8 of the Waste Guidelines, except those: …”.

104. Neither of the two exceptions stated in that paragraph have present relevance.

105. Among the environmentally sensitive areas described in Technical Appendix 8 of the Waste Guidelines is a landfill or application site located “in or within 40 metres from a permanent or intermittent water body”. It is acknowledged by the defendants that the materials deposited in constructing the road on Lot 132 included depositing transported material in an area that was “an environmentally sensitive area” within the meaning of par (1)(g).

106. The term “landfill or application site” is defined in the “[s]pecial interpretive provisions relating to waste” found in Div 2 of Pt 3 of Sch 1. That definition is as follows:

“landfill or application site means a waste facility used for the purpose of disposing waste to land, including (but not limited to) disposal by any of the following methods:

(a)   spraying or spreading the waste on the land,

(b)   ploughing the waste into the land,

(c)   injecting the waste into the land,

(d)   mixing the waste into the land,

(e)   depositing the waste on the land.”

107. The prosecutor submits that at the time of transporting waste to Lot 132 during both charge periods, that land could not lawfully be used as a “waste facility”. This was because:

1. Lot 132 was a “landfill or application site” in an environmentally sensitive area, being one of the classes of “waste facilities” identified in Pt 1 of Sch 1 to the Act and was therefore required to be licenced as such pursuant to s 48; and

2. the Company has not discharged the onus cast upon it by s 143(2) to prove that Lot 132 could lawfully be used as a “waste facility”.

Defendants’ submissions

108. The defendants contend that in the definition of waste facility, the word “for” should be interpreted as meaning “having as a purpose or function”. That meaning makes it necessary to determine the purpose of use, as the concept of purpose is understood in town planning law. In order to make that determination, an examination of the present use or uses to which land or premises are put must be made to identify the purpose those uses serve, separating those uses that are ancillary to a dominant purpose from those uses that manifest an independent purpose (Shire of Perth v O’Keefe [1964] HCA 37; 110 CLR 529; Royal Agricultural Society (NSW) v Sydney City Council (1987) 61 LGRA 305; Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157; Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404).

109. Ultimately, so it is submitted, it is only if the or a purpose for which Lot 132 was used was “for the storage, treatment, (re)processing, sorting or disposal of waste” could the premises properly be categorised as a waste facility. The submission continues by contending that the prosecutor has failed to prove beyond reasonable doubt that the or even a use of Lot 132 could be so characterised.

110. By reference to the facts, the defendants submit that in seeking to have the road constructed within Lot 132, Mr Ciccanti was doing no more than facilitating the use of his land as a rural holding, ensuring that there was all-weather access to the rear of the property either for some agricultural purpose or to ensure that access was available for fire fighting. His evidence at trial was that there had been bushfires encountered on the property, with vehicles from the Rural Fire Service unable to negotiate through the wet central section of Lot 132 in order to gain access for fire fighting vehicles and equipment as well as for bushfire hazard reduction activities. The construction of the internal road, so it is submitted, remains ancillary to use of the land for the purpose of either rural/residential or rural/agricultural activities.

111. As a consequence, “the construction of a farm road does not make the farm a waste facility”. Even if the material used to construct the road is waste and that waste was deposited on Lot 132, the defendants contend that the deposition of that waste was to construct a road for a purpose that was ancillary to the use of the land as a farm (defendants’ original written submission at par 96).

112. Further, in the context of the definition of “waste facility”, the defendants submit that any waste transported to Lot 132 did not involve the “storage”, “treatment”, “(re)processing” or “sorting” at that land. Moreover, the activity of the Company at Lot 132 did not involve “disposal” of waste but rather involved the “use” of that waste. As a consequence, the activity of the Company did not engage the definition of “waste facility”.

113. The defendants further submitted that neither a licence under s 48 of the Act was required for the disposal of waste at Lot 132 nor, in the circumstances, was development consent required under the EPA Act for that activity. The absence of such a licence or development consent was identified by the prosecutor in the particulars of “unlawfulness” given in the summons issued in each proceeding.

114. The submission that a licence was not required by s 48 of the Act is advanced on two bases. First, it is contended that the chapeau to Pt 1 of Sch 1 to the Act has no application to the road construction carried out on Lot 132. The opening provision of that Part, described as “the chapeau”, provides:

“The activities referred to in this Part are activities that are premises-based (ie the occupier of the premises at which the activity is carried on must be the holder of a licence authorising the activity to be carried on at those premises).

An activity referred to in this Part is not a premises-based activity if the activity is carried on by mobile plant.”

115. The expression “mobile plant” is defined in Div 1 of Pt 3 of Sch 1 in the following terms:

“mobile plant means any equipment or machinery that:

(a)   is capable of carrying on any one or more of the activities referred to in this Schedule, and

(b)   is capable of moving under its own motive power or of being transported, and

(c)   is operated at a particular site on a temporary basis only (ie for a total period of not more than 6 months in any 12-month period at that site).”

116. The method used for constructing the road was the subject of evidence. Trucks containing the material that I have found to be waste came to Lot 132 and tipped material in the general location of either the existing track or the route of the proposed road as an extension of or deviation from that track. An excavator was then brought to the site by the Company and used both for excavation of a section of the road to be constructed into which the waste was moved or tipped and also to compact the waste. After a section of the road had been completed in this manner, the excavator was taken from the site until sufficient waste of the kind earlier described had been identified to warrant the return of the excavator in order to construct the next section of the road (Terrace No 1 at [65]-[67] and [93]-[95]). Between late November 2005 and 1 March 2007, Mr Page estimated that approximately 50 loads of the selected waste were taken to Lot 132, allowing sections of the road to be constructed in the manner that I have described (at [105]).

117. Having regard to this evidence, the defendants submit that the activity involved in constructing the road on Lot 132 was not premises-based but rather was one carried on by mobile plant. The use of trucks and an excavator to construct the road satisfies pars (a) and (b) of the definition of that expression. Paragraph (c) was satisfied having regard to the evidence that approximately 50 loads of waste were taken to Lot 132 over the aggregate of the two charge periods. Even if two days work was allocated to each load, reflecting the excavation, tipping and compaction elements of construction involved, the aggregate period would fall short of the 6 month threshold in any twelve-month period to which para (c) is directed. As Pt 1 of Sch 1 is not engaged in these circumstances, no licence was required under s 48 of the Act.

118. The alternative basis upon which the defendants submit that there was no requirement for a licence under s 48 is that Lot 132 was not, at any time during either charge period, a “landfill or application site”, as that expression is defined in the special interpretive provisions of Pt 3 of Sch 1 to the Act. It will be remembered that the class of “waste facilities” in Pt 1 of Sch 1 to the Act that was potentially engaged by the activity on Lot 132 was that identified in subclause (1)(g) under that head, namely a “landfill or application site in environmentally sensitive areas”.

116. The definition of “landfill or application site” requires that the “waste facility” be used “for the purpose of disposing waste to land”. The defendants impute to the expression “purpose” those concepts of land use to which I have earlier referred, being land use concepts developed under planning law such as the EPA Act and its predecessor legislation. The reasoning earlier advanced by the defendants has the consequence, so it is submitted, that the purpose for which Lot 132 was used was an agricultural purpose, the road being constructed so as “to provide access to cattle, repair fencing and carry out fire mitigation works” (defendants’ original submissions at para 109).

117. They further contend that the specific means of waste disposal identified in paragraphs (a) to (e) in the definition of “landfill or application site” do not expand the concept of “disposing waste to land” when the material so described is used for an engineering purpose. The word “disposing” should, in the context of the definition in which it is found, be given its ordinary meaning of “to get rid of” (Environment Protection Authority v N (1992) 26 NSWLR 352 at 355; Environment Protection Authority v Anning [1998] NSWLEC 129; 100 LGERA 354 at 358 and 362). In the present circumstances there was no disposal because the Company was not “getting rid of” the material it transported to Lot 132 but rather was putting it to use as road construction material.

118. I do not accept the defendants’ challenge directed to this issue. The evidence tendered at trial leaves no doubt that between 23 November 2005 and 1 March 2007 the Company transported to Lot 132 material that I have held to be waste. As I have earlier recorded that waste was initially tipped onto or in the vicinity of an existing track before being moved and compacted by the excavator brought to the site by the Company for that purpose. Once extension of the existing track commenced, that waste was tipped into a progressively extended (albeit at irregular intervals) excavation about 800mm deep and of variable width, made to receive that waste before the waste was compacted to form a road (Terrace No 1 at [94]). The tipping of the waste onto the designated part of Lot 132 involved “depositing” that waste on the land, “spreading” it and upon compaction “mixing the waste into the land”. As to the latter, the evidence demonstrates that the material excavated in the path of the road was initially set aside and then used as batter material in the formation of the road, once the waste had been deposited, spread and then compacted (Terrace No 1 at [94] and [108]).

Use as a waste facility

122. The submission by the defendants that when addressing the definition of “waste facility” in the Act it was necessary to determine whether the premises were used for the purpose of storage, treatment etc., applying to that exercise jurisprudence developed under the EPA Act or other town planning legislation concerned with land use controls, is a submission that has been considered and rejected by this Court on previous occasions. In Blacktown City Council v Pace [2002] NSWLEC 142; 121 LGERA 432, Pain J determined a prosecution for an offence against s 144 of the EPA Act in which the phrase “land that cannot lawfully be used as a waste facility” was considered. At [20] her Honour said:

“I do not find the ‘planning’ cases relied on by the Defendant definitive in this context on the meaning of ‘use’ as a waste facility. The issue of use in the context of s 144 must be a question of nature and extent based on the circumstances of each case. The Prosecutor is not required to demonstrate the purpose of the use of the land was as a waste facility … , only that in the circumstances there was such a use.”

123. In Environment Protection Authority v Hardt [2006] NSWLEC 438; 148 LGERA 61 the Chief Judge was required to address the same question in the context of an offence against s 144 of the Act. His Honour recorded at [88] a submission of the defendant in that case that the prosecutor had not established beyond reasonable doubt that the defendant’s land was a landfill or application site because it had not established that the defendant used the land “for the purpose of” disposing of waste to the land. His Honour rejected that submission. He then said:

“89   ‘Purpose’ in the context of the definition of ‘landfill or application site’ bears its ordinary meaning. The Macquarie Dictionary defines ‘purpose’ to include:

‘1.   the object for which anything exists or is done, made, used, etc. 2.

an intended or desired result; end or aim’

90   An object, desired result, end or aim of the defendant’s actions was to dispose of waste to the land by the method of depositing the waste on the land. The disposal of waste to the land was seen to be advantageous to the defendant because it provided landfill upon which an access road could be constructed. The fact that the construction of the access road could also be seen to be an object, desired result, end or aim of the defendant’s conduct does not exclude the disposal of waste being an object, desired result, end or aim. There can be multiple purposes and the purposes can be pursued simultaneously or consecutively.”

At [107] his Honour agreed, without qualification, in the passage from the judgment of Pain J in Pace that the prosecutor was not required to demonstrate the purpose of the use of land as a waste facility.

124. It is correct to observe, as the defendants did, that the agreement of the Chief Judge in Hardt at [107] in the observations of Pain J in Pace was expressed when considering whether the defendant in that case had permitted land to be used as a waste facility. While that context is a point of distinction from that being considered in the present case, it is a distinction without any relevant difference to its legal consequence. The context in which his Honour expressed his agreement with the statement in Pace is apparent from [106]. He there stated that the concept of “permitting” did not impose a requirement that the defendant be shown to have used land for the purpose of a waste facility. When read with what his Honour also said in [89]-[90], being the passages that I have earlier quoted, it is clear that he was addressing the manner in which the phrase “use as a waste facility” should be understood as expressed in s 144. There is no logical reason why the identical phrase should not be understood in the same way when used in s 143.

125. In Mouawad v The Hills Shire Council [2013] NSWLEC 165; 199 LGERA 28, Pepper J was required to consider the use of land as “a waste facility” in the context of the prosecution for an offence against s 143(1) of the Act. The land in question was a residential property to which soil and rubble from a demolition site was transported and deposited to facilitate the landscaping of the property.

126. Her Honour was hearing an appeal against conviction for the offence determined in the Local Court. It was submitted by the appellants that the evidence led by the prosecutor did not demonstrate that the property was being used as a waste facility because it was being used for residential purposes. Depositing the waste on the property to facilitate landscaping was incidental to the residential purpose for which the property was used. Principles of characterisation of land use derived from planning law were relied upon to support that submission.

127. Her Honour considered the analogy with planning law concepts when interpreting s 143(1) of the Act as “inapposite” (at [138]). She identified the differences in scope and purpose between the Act and the EPA Act and observed that the words “used for” in the definition of “waste facility” did not constitute a term of art but were to be given their ordinary meaning. Her Honour noted that the argument advanced before her had been rejected by Pain J in Pace at [20], that reasoning having been endorsed by Preston CJ in Hardt at [107]. Her Honour continued:

“139 Although both decisions concerned s 144 of the POEOA, I nevertheless consider the reasoning equally applicable to s 143. Fourth, if the interpretation afforded to the definition of ‘waste facility’ by the appellants were to be adopted, it would permit the dumping of waste on any land or in any building that was not used for the dominant purpose of ‘the storage, treatment, processing, sorting or disposal of waste’. Thus the transportation of waste to any residential property would be permitted (it would not be caught by s 144). I do not accept that this was the intention of the legislature in enacting s 143 of the POEOA.

140 Accordingly, provided that a use of the premises, … is as a ‘waste facility’, this will be sufficient to bring the site within the operation of s 143 of the POEOA. That the premises are being used for other activities or other purposes is relevant only to the issue of penalty and not, in my opinion, to the issue of liability.”

128. Although it was submitted by the defendants that the conclusion expressed by Pain J in Pace at [20] was wrong, I do not accept that submission. I respectfully agree in the reasoning and conclusions expressed and drawn in the passages from Pace, Hardt and Mouawad to which I have drawn attention. Applying those conclusions, the relevant question in the present context must therefore be whether Lot 132 was used or was intended for use for disposal of waste.

129. The response to that question is clearly in the affirmative. Accepting the defendants’ submission that “disposal” should be taken to mean “get rid of”, that is clearly what the Company did when it transported waste to Lot 132. The clearest demonstration of that fact is found in the evidence of Mr Ciccanti who stated that when discussing the proposal to construct the access road, Mr Page said to him “I have bricks and concrete I could use, I need to get rid of it anyway” (Terrace No 1 at [61]). That conversation was not the subject of challenge in the course of evidence.

130. I also find relevant in this context the fact that Mr Ciccanti was not required to pay either for the waste transported to his site or for the work involved in using that material to construct the internal access road. From that evidence I am entitled to infer that there was an advantage to the Company in “getting rid of” demolition or excavation waste by taking it to Lot 132 rather than transporting it to a licenced waste facility. There is no suggestion in the evidence that the agreement reached between Mr Ciccanti and the Company was other than one reflecting ordinary commercial arrangements.

131. Correctly applying the principles I have discussed, I conclude that Lot 132 (“the premises”) during both charge periods was intended to be used and, in fact, was used for the disposal of materials that I have found to be waste. The tipping of approximately 50 truckloads of that waste on the land over a period of 15 months was a use of “the premises” to “get rid of” that waste. The fact that the wast deposited at the site was subsequently put to another use by a further process, namely working, grading, compacting and levelling that material by use of equipment, did not detract either from its characteristic as waste at the time of deposition nor from the use of the site as a waste facility. Clearly, the use of that site for the disposal of “waste” was intended from the time that agreement for road construction was reached between Mr Ciccanti and Mr Page on behalf of the Company.

Lawful use by reference to the Act

132. The first matter to be considered under this head is the time at which the lawfulness of use as a waste facility is to be considered. The thrust of the defendants’ submission was that the evidence had not established to the requisite standard that the transport and deposition of materials involved the unlawful use of the land as a “waste facility”. In order to establish Lot 132 was so used involved more than a “hypothetical inquiry” as to whether the land could lawfully be used as a waste facility.

133. I disagree. The words of s 143(1) require a determination that the “place” in question “cannot lawfully be used”: it does not require a determination that the land in question, at the time of transportation to it, “is not being lawfully used” as a waste facility.

134. The Court of Criminal Appeal has determined that the offence created by s 143(1) is completed once transported to a place satisfying the statutory criteria has occurred, that is, the offence “was completed when the vehicle arrived at that place” (Terrace No 2 at [35] and [38]; Shannongrove at [38]). The statutory criteria for lawfulness of the use of the place must logically also be applied at that time. Thus, it is necessary to ask whether the place could lawfully be used as a “waste facility” at that time if the transported waste was then disposed of by spraying, ploughing, injecting, mixing or depositing of the waste on the land in question.

135. While the fact that, following transportation, waste has been deposited at the place is relevant evidence directed to site use, that evidence, of itself, does not determine the question to be answered as to lawfulness at the time at which transportation to the place was completed.

136. The prosecutor correctly submitted that commission of an offence against s 143 is not dependent upon there being a prior history of deposition at the place in question. The section requires a determination as to whether the place to which waste is transported can lawfully be used as a waste facility. The offence is directed to transportation to places where no authority exists to receive that waste, not whether, at the time at which transport is complete, that place is being used unlawfully.

137. As I have said, the manner and disposal of waste at the delivery site, broadly considered, does provide evidence against which the determination can be made as to whether the activity is of a kind that engages a class of waste facility identified in Pt 1 of Sch 1. As was acknowledged by the defendants, the use of Lot 132 for disposal of material in constructing the road, assuming the material to be waste, had the potential to identify the activity as occurring on a “landfill or application site in an environmentally sensitive area”. However, as I have also recorded, the first basis upon which the defendants submit that such a class of waste facility was not engaged arose because of the exception in the chapeau to Pt 1 of Sch 1 directed to an activity conducted by mobile plant.

138. I agree in the submission of the prosecutor that reliance upon that exception was misconceived. The relevant activity on Lot 132 anticipated by the agreement reached between Mr Ciccanti and the Company was to use Lot 132 “for the … disposal of waste”, thereby satisfying the definition of “waste facility”. The deposition of waste at Lot 132 did not itself involve an activity “carried on by mobile plant”. The use of mobile plant to distribute, grade, compact and level that material so as to form a road is irrelevant to the activity falling within the “mobile plant” exception.

139. The other basis upon which the defendants submit that the activity of Lot 132 did not satisfy the definition of a “landfill and application site” is that there had not been established beyond reasonable doubt that Lot 132 was a facility used “for the purpose of” disposing of waste to land. That submission has already been addressed and rejected by me.

140. I have earlier determined that the time at which the lawfulness of use of the place to which waste is transported is the time at which transportation is completed. Making that determination in any given case may be assisted by evidence of action subsequently taken in relation to the waste at that place, but that is not the only evidence upon which that determination can be made. Evidence of the circumstances in which the waste came to be taken to that place must also be relevant.

141. By way of illustration, assume a convoy of large trucks carrying waste arrived at a site that, at the time of arrival, was neither licenced as nor used as a waste facility for that waste. Assume also that there was evidence of the arrangement between the transporting entity and the owner of the place that the waste was to be disposed of at that place, later to be spread, compacted and used as fill to facilitate some other use of that place. That evidence must be relevant when determining whether the “place” could lawfully be used as a waste facility for the transported waste. Convoy aside, the evidence in these proceedings demonstrates that a similar arrangement was intended and implemented at Lot 132. The number of deliveries and time over which the deliveries occurred, readily demonstrates that the disposal of waste at Lot 132 was the “desired result, end or aim” of the Company’s actions (Hardt at [89]-[90]).

142. Finally, the contention by the Company that the prosecutor’s submissions in this regard is inconsistent with the submission made at trial should be addressed. The Company did not articulate the consequence that flowed from the claimed inconsistency.

143. I accept that at the conclusion of the trial, the prosecutor submitted that disposal of waste at Lot 132 was an element of the offence under s 143(1). As I have earlier observed, that submission was rejected by the Court of Criminal Appeal in both Terrace No 2 and Shannongrove.

144. The fact that the Court of Criminal Appeal so determined did not deny the entitlement of the prosecutor to make the submissions that it has in relation to the lawful use of Lot 132 as a waste facility. The very purpose of referring questions of law pursuant to s 5AE of the Criminal Appeal Act is to allow the prosecutor to agitate such questions arising in the trial before its conclusion. My task now is to bring the trial to conclusion in accordance with the answers given by the Court of Criminal Appeal to the questions stated for its response. The prosecutor is entitled to be heard as to the result of the trial for which it contends, having regard to the answers given by that Court.

145. For the reasons expressed I am satisfied beyond reasonable doubt that during each charge period:

1. at the time at which the Company completed the transportation of waste (as earlier identified) to Lot 132, that land was intended to be used and was in fact used for the disposal of that waste;

2. the intended use of that land and the use that, in fact, occurred was for the purpose of disposing of that waste to land by methods that included depositing, spreading and mixing that waste on or in the vicinity of the alignment of and excavation for the proposed access road within the boundaries of that land; and

3. part of the land on which disposal of that waste was proposed to occur and did, in fact, occur was within an area that was located in an environmentally sensitive area in that the area within which the waste was to be disposed of included an area that was both within, and within 40m from, a permanent or intermittent water body.

I therefore find beyond reasonable doubt that a licence was required pursuant to s 48 of the Act in order to render use of the land as a waste facility lawful. That waste facility was one of a class of “waste facilities” identified in Pt 1 of Sch 1 to the Act and was therefore a “scheduled activity” within the meaning of s 48. No licence was held to use Lot 132 as a waste facility.

Lawful use under the Environmental Planning and Assessment Act

146. My determination that the use of Lot 132 as a waste facility was not lawful because no licence under s 48 of the Act had been issued, strictly renders it unnecessary that I address the second basis upon which the prosecutor submitted that the use also contravened the provisions of the EPA Act. However, as the issue has been argued, it is appropriate that I briefly address the matters agitated by the parties on this issue.

147. During each charge period, Lot 132 was subject to the land use controls imposed by Port Stephens Local Environmental Plan 2000 (LEP 2000). Under that instrument, Lot 132 was zoned 1(a) - Rural Agriculture. Upon land so zoned, use “for the purpose of” agriculture was “exempt development”. As a consequence, development correctly characterised as use for the purpose of “agriculture” did not require the grant of development consent. Development for a purpose that fell within par (5) of the Development Control Table to cl 11 was prohibited; development other than exempt or prohibited development required the grant of development consent. Relevantly, use of Lot 132 for the purpose of a waste facility is not prohibited but requires development consent. Failure to obtain that consent before carrying out that activity would constitute a breach of the EPA Act: s 76A(1)(a).

146. As Preston CJ observed in Hardt at [97], the words “cannot lawfully be used” are not restricted to lawfulness under the Act but can extend also to the EPA Act. While his Honour’s determination was made in the context of s 144(1), given that he was addressing the same phrase that is used in s 143(1), there is no logical reason why his construction of the phrase should not be applied to the latter section. I respectfully adopt his Honour’s construction and the reasons of principle that his Honour expressed at pars (a) to (e) of [97], reading the reference that he makes in those paragraphs to s 144 as being a reference to s 143.

147. I would add that which I believe to be implicit in his Honour’s judgment on the issue of lawfulness, namely that while words and phrases used in the Act may find expression in another statute directed to the use of land, that fact does not mandate that those words or phrases, common to both statutes, must be construed in the same way in each statute. Text, context and purpose in each case will determine the appropriate construction of the respective statutory provisions. It is not uncommon to find in respect of a number of forms of land use that both consent or approval under the EPA Act and also a licence or other form of authority under a different statute, applying different statutory criteria, are each necessary before that land use can lawfully be undertaken. The absence of either authority will render the use unlawful.

148. The term “agriculture” is defined in the Dictionary to LEP 2000 in the following way:

“agriculture means the cultivation of crops, and the keeping and breeding of livestock, bees, worms or poultry and other birds, and the like, for commercial purposes, but does not include an intensive agricultural pursuit, intensive agriculture or clearing.”

151. The prosecutor submits that the deposition of material (waste) at Lot 132, to be used in the construction of the internal access road, was “development” within the meaning of s 4(1) of the EPA Act and was development for which consent was required. It was “development” within the meaning of s 4(1) because, at the least, it involved “the use of land” as well as “the carrying out of a work” on land.

152. The prosecutor further submits that the use of Lot 132 as a waste facility is not subsumed into the ultimate purpose for which that use was made or work undertaken, such as a road to be constructed as ancillary to an agricultural use or ancillary to use of the land as a rural/residential home site. In support of that submission reference is made to the decisions of the Court of Appeal in C.B. Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270 at 271-272; Baulkham Hills Shire Council v O’Donnell at 409-410, both cited with approval in Hardt at [99](d).

153. The evidence directed to this issue establishes that:

1. Lot 132 has an area of about 20.3 hectares;

2. it was first occupied by Mr and Mrs Ciccanti in 2002 who, at that time, had no experience in undertaking agricultural activities on a rural property;

3. shortly after occupying the property they purchased 4 or 5 cows in order “to keep the grass down near the house”, but soon after purchasing those cows they disappeared and were never found;

4. an unspecified number of cows were subsequently acquired to graze on the land;

5. consistent with my earlier findings, some 50 loads of waste were transported to Lot 132 by the Company; and

6. that material was deposited on the land and used for road construction extending over a period of approximately 15 months.

154. There is no evidence establishing the number of cows grazing on the land during each charge period nor was there evidence led as to whether the keeping of livestock on the land was for commercial purposes. In the absence of evidence that the prosecutor could, but did not, lead from Mr Ciccanti, I am not satisfied beyond reasonable doubt that the keeping of cows on the land was not “for commercial purposes” within the meaning of “agriculture” as defined in LEP 2000. It follows that I cannot be satisfied that the land was not used for the purpose of agriculture during each charge period.

155. However, that is not the end of the matter. I am satisfied, having regard to the fact that the transported material was “waste” within the ordinary meaning of that term, namely that the materials had served a purpose for which they were no longer wanted (Terrace No 1 at [175]-[177], and that depositing of those materials on the land in the quantity reflected by 50 truckloads over a period of about 15 months, characterised that activity as being a use for the purpose of waste disposal. That use was not ancillary to the use of the land for the purpose of agriculture. As development consent was required for that use, but no such consent had been granted, the Company’s use of the land as a waste facility was unlawful under LEP 2000 and s 76A(1)(a) of the EPA Act.

Summary and conclusions

156. In Terrace No 1 I identified at [27] the elements of the offences with which the Company has been charged. By way of summary, it is appropriate to address each of those elements.

Transportation

157. I find beyond reasonable doubt that the Company transported (first charge period) and that it caused to be transported (second charge period) a substance or material to Lot 132, it being admitted by the Company that it did so.

The transported material was “waste”

158. At [77] I have found beyond reasonable doubt that the substance or material so transported was surplus or unwanted material in the hands of the owner of that material before coming into the possession of the Company. Further, I have found to the requisite standard of proof at [92] that those materials were not processed, recycled, re-used or recovered materials at the time of transportation by the Company. As a consequence, that material was “waste” at the time at which transportation to Lot 132 was completed.

Unlawful use as a waste facility

159. I find beyond reasonable doubt that Lot 132 was at the time of transportation of that waste by the Company, land that could not lawfully be used as a waste facility because such use required a licence issued under s 48 of the Act but no such licence had in fact been issued. I also find beyond reasonable doubt that Lot 132 could not be used as a waste facility unless development consent for that use had been granted under the EPA Act but no such consent had in fact been granted. It is sufficient to find unlawfulness if either the licence or the consent was not held at the time of transportation.

160. The findings that I have made relate to the offences with which the Company is charged and relate to each charge period. As a consequence of those findings, my ultimate finding beyond reasonable doubt is that each of the elements of the offences against s 143(1) of the Act has been proven for each charge period.

Offences by Mr Page

161. Mr Page does not contest the fact that during each charge period he was a director of the Company. My determination that the Company has contravened s 143(1) and that at all relevant times Mr Page was a director of the Company has the consequence that the provisions of s 169(1) of the Act are engaged. It was not submitted on behalf of Mr Page that if I found the offences against the Company proved, I should nonetheless find that Mr Page had not contravened the Act. No evidence has been led by him to support application of the exculpatory provisions found in pars (a), (b) and (c) of s 169(1) during the first charge period or the exculpatory provisions found in pars (b) and (c) of the subsection during the second charge period.

162. Having found that the Company has contravened s 143(1) during each charge period, and applying the provisions of s 169(1) of the Act, I find beyond reasonable doubt that Mr Page, as a director of the Company during those periods, has also contravened s 143(1) of the Act.

163. The findings that I have made have the consequence that each defendant should be found guilty of the offences with which they have been charged. However, the prosecutor has requested that I refrain from entering formal verdicts in the proceedings to enable it to exercise its right to submit any question of law arising in the proceedings for determination by the Court of Criminal Appeal. It makes its application pursuant to s 5AE(1) of the Criminal Appeal Act.

164. Accordingly, the only formal order that I propose to make is that the proceedings be stood over for a short period to enable the prosecutor to make any such application as it may be advised to make. If no application is made, verdicts of guilty will be entered in all four proceedings.

Orders

165. The orders that I make are as follows:

1. Stand over all four proceedings to Friday 13 May 2016.

2. Unless by that date an application is made by the prosecutor pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW) to state a question of law for determination by the Court of Criminal Appeal, verdicts of guilty in all four matters will be entered on that day and a date fixed for a hearing on sentence.

Addendum

166. The matters stated in [163] and [164] reflect the terms of the request made by the prosecutor at the conclusion of its submissions. The orders that I proposed and articulated in [165] were prepared on that basis.

167. Upon the matter being listed for delivery of judgment I was told by the prosecutor that if I was to find the defendants guilty of the offences with which they have been charged, no application is made by it under s 5AE of the Criminal Appeal Act. Accordingly I am able to and do make orders as follows:  

1. Proceedings 50042 of 2009 - I find the defendant Terrace Earthmoving Pty Ltd guilty as charged

2.  Proceedings 50043 of 2009 - I find the defendant Terrace Earthmoving Pty Ltd guilty as charged

3.  Proceedings 50044 of 2009 - I find the defendant Geoffrey James Page guilty as charged.

4.   Proceedings 50045 of 2009 -  I find the defendant Geoffrey James Page guilty as charged.

5. All proceedings - Each proceeding is stood over to 9.30am on Friday 13 May 2016 to make directions and fix a time for the hearing of submissions on penalty.

**********

Decision last updated: 09 May 2016