Hardt v Environment Protection Authority

Case [2007] NSWCCA 338

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Hardt v Environment Protection Authority [2007]  NSWCCA 338

FILE NUMBER(S):
2007/3255

HEARING DATE(S):               29 November 2007

JUDGMENT DATE: 12 December 2007

PARTIES:
Bernard Hardt - Appellant
Department of Environment & Climate Change (formerly Environment Protection Authority)

JUDGMENT OF:       Giles JA Grove J Harrison J   

LOWER COURT JURISDICTION: Land and Environment Court

LOWER COURT FILE NUMBER(S):          50066/04

LOWER COURT JUDICIAL OFFICER:     Preston CJ

LOWER COURT DATE OF DECISION:    19 July 2006 (Liability); 1 May 2007 (Sentence)

LOWER COURT MEDIUM NEUTRAL CITATION:

Environment Protection Authority v Hardt [2006] NSWLEC 438;  Environment Protection Authority v Hardt [2007] NSWLEC 284

COUNSEL:
D C Fitzgibbon - Appellant
D A Buchanan SC - Crown

SOLICITORS:
Daphne Kennedy, Cooranbong, NSW - Appellant
Stephen Garrett, EPA - Respondent

CATCHWORDS:
Environmental offence - permitting land to be used as a waste facility - "permitting" requires awareness of the actions of using the land as a waste facility and failure to exercise a right or power to prevent it - does not require purpose that land be used as a waste facility.

LEGISLATION CITED:
Protection of the Environment Operations Act 1997, Pt 8.2

CASES CITED:
Adelaide Corporation v Australasian Performing Rights Association Ltd (1928) 40 CLR 481;
Broad v Parish (1941) 64 CLR 588;
Environment Protection Authority v Multiplex Constructions Pty Ltd [2000] NSWLEC 6; (2000) 112 LGERA 1;
Miller v Williams (1990) 53 SASR 82;
Owen v Willtara Constructions Pty Ltd (1998) 103 LGERA 137;
R v Jasper [2003] NSWCCA 186; (2003) 139 A Crim R 329.

DECISION:
Appeal dismissed.  Determination of the Land and Environment Court confirmed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA  2007/3255
L & E  50066/04

GILES JA
GROVE J
HARRISON J

Wednesday 12 December 2007

HARDT v ENVIRONMENT PROTECTION AUTHORITY

Judgment

  1. GILES JA: This is an appeal against a conviction and sentence in the Land and Environment Court in the exercise of its Class 5 jurisdiction to hear and dispose of in a summary manner proceedings under Pt 8.2 of the Protection of the Environment Operations Act 1997 (“the Act”) (Land and Environment Court Act 1979, s 21(a)).

  2. The appellant was charged -

    “ … that, from about 24 May 2002 and continuing until about 23 May 2003 inclusive at Wyee in the State of New South Wales, he committed an offence against section 144(1) of the Protection of the Environment Operations Act 1997 in that he, being the owner of land that could not lawfully be used as a waste facility, permitted the land to be used as a waste facility.”

  3. After a hearing by Preston CJ in March 2006, on 19 July 2006 his Honour published reasons in which he found beyond reasonable doubt that each of the elements of the offence against s 144(1) of the Act was proved and the appellant was pronounced guilty: Environment Protection Authority v Hardt [2006] NSWLEC 438; (2006) 148 LGERA 61. After a…

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Hardt v Environment Protection Authority [2007] NSWCCA 338
Case
[2007] NSWCCA 338
Decision Date

CaseChat Overview and Summary

In the matter of Hardt v Environment Protection Authority, the primary issue before the court was whether the appellant, who owned or occupied land, permitted it to be used as a waste facility. The court had to determine whether the appellant had intentionally allowed the land to be used for the disposal of waste, regardless of his intention for the land. The appellant argued that the prosecution needed to prove that he intended to use the land as a waste facility, while the respondent contended that the appellant merely needed to have allowed the physical actions constituting a waste facility, such as the disposal of waste on the land.

The court found that the concept of permitting in the statute did not import a requirement that the accused intended to use the land for the purpose of a waste facility. The court held that the prosecution only needed to prove that the accused intentionally allowed the land to be used for the disposal of waste. The court emphasised that the accused's motive for allowing the disposal of waste on the land was legally irrelevant to the element of the offence. The court concluded that the evidence established beyond reasonable doubt that the appellant permitted waste to be disposed of on the land and hence permitted the use of the land as a waste facility.

The court's decision was based on a proper construction of the statute and the legal principle that the prosecution only needed to prove that the accused intentionally allowed the land to be used for the disposal of waste. The court rejected the appellant's argument that the prosecution needed to prove that he intended to use the land as a waste facility. The court held that the appellant's motive for allowing the disposal of waste on the land was legally irrelevant to the element of the offence. The court's decision was consistent with the legal principle that the prosecution only needed to prove that the accused intentionally allowed the land to be used for the disposal of waste. The court found that the evidence established beyond reasonable doubt that the appellant permitted waste to be disposed of on the land and hence permitted the use of the land as a waste facility. The court's decision was based on the legal principle that the prosecution only needed to prove that the accused intentionally allowed the land to be used for the disposal of waste, and not that the accused intended to use the land as a waste facility.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

By arrangement with the appellant, materials were deposited on the land in order to bridge across a gully so as to provide road access to the improvements for which development consent had been granted. The bridging was extensive; the filled area was about 300 m long and up to 33 m wide. It was not on the road reserve referred to in the condition, being within the land. The materials were deposited by Skip the Tip, the business of Derwin Waste Management Solutions Pty Ltd, and by another business identified as East Coast Demolitions. They were waste within the definition, and the judge said - “5 The fill comprised a large variety of waste materials, including oil containers, bottles, batteries, sheeting, pipes, metal, plastic, fibrosheeting, bricks, cut vegetation, building timber, car bodies and municipal wastes such as household rubbish, old toys, food waste and wrappers. Parts of the cleared area had been covered with a layer of clay. The nature of the materials, the large quantities disposed of and the method of disposal on the land were consistent with the use of the land as a waste facility.”The judge’s decisions The judge noted as the elements of the offence that the defendant was the owner or occupier of land, that the land could not lawfully be used as a waste facility and that the defendant permitted the land to be used as a waste facility. The first element was not in contest. As to the second element, the judge found that the land could not lawfully be used as a waste facility on alternative grounds. One was that a licence to use it as a waste facility was required under the Act, and a licence had not been granted. The other was that “cannot lawfully be used” in s 144(1) extended to lawfulness of use under other statutes, that development consent for use of the land as a waste facility, alternatively for landfill, was required under the Environmental Planning and Assessment Act 1979, and development consent had not been granted. As to the third element, the judge said that the evidence established that the appellant intentionally allowed waste to be brought onto and disposed of on the land. His Honour noted the competing submissions. The respondent submitted that “permits” in s 144(1) did not require proof that the defendant intended to use the land for the purpose of a waste facility and that it was sufficient to establish that the defendant allowed the physical actions which constituted a waste facility such as the disposal of waste on the land. The appellant submitted that “permits” required not only that the defendant allowed the physical actions but also that the defendant intended that the carrying out of the physical actions on the land be for the purpose of a waste facility, and that such an intention had not been proved. The judge held -“106 In my opinion, the prosecutor’s submissions on the mental element of “permits” in s 144(1) of the Act are to be preferred over the defendant’s submissions. On a proper construction of s 144(1) of the Act, the mental element of permitting operates only on the physical actions of storage, treatment, processing, sorting or disposal of waste that constitute use as a waste facility. The mental element will be established on proof by the prosecutor to the requisite criminal standard of beyond reasonable doubt that the accused intentionally allowed the land, in respect of which the accused is the owner or occupier, to be used for the storage, treatment, reprocessing, sorting or disposal of waste. The concept of permitting does not import a further requirement that the accused has intentionally allowed that land to be used for the purpose of a waste facility. 107 In Blacktown City Council v Pace (2002) 121 LGERA 432 at 438 [20], Pain J rejected the same argument. Pain J held: ‘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.’I agree. 108 In this case, all the prosecutor is required to establish is that the defendant intentionally allowed the land to be used for, relevantly, the disposal of waste. The defendant’s motive, such as to create a foundation of fill upon which to construct an access road, is legally irrelevant to the element of the offence of permitting the use of the land as a waste facility. Factually, however, it provides evidence from which the element of permitting the use as a waste facility, in the sense of intentionally allowing the disposal of waste on the land, can be established. 109 I find the evidence establishes beyond reasonable doubt that the defendant permitted waste to be disposed of on the land and hence permitted the use of the land as a waste facility.”

Ratio Decidendi

Legal Principle Established

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