The Hills Shire Council v Suciu

[2009] NSWLEC 145

Reported Decision: 168 LGERA 302

Land and Environment Court

of New South Wales

CITATION:

The Hills Shire Council v Suciu [2009] NSWLEC 145
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

The Hills Shire Council (Prosecutor)
Petre Suciu (Defendant)

FILE NUMBER(S):

50085 of 2008

CORAM:

Pepper J

KEY ISSUES:

ENVIRONMENTAL OFFENCES :- prosecution - ex parte proceedings - plea of not guilty - unlawful waste disposal - waste transportation and disposal in a place other than lawful waste facility - "waste" - unclean fill - finding of guilt

LEGISLATION CITED:

Protection of the Environment Operations Act 1997 s 143, s 169
Criminal Procedure Act 1986 s 250
Environmental Planning and Assessment Act 1979 s 76A(1)(a)
Baulkham Hills Local Environmental Plan 2005

CASES CITED:

Bentley v BGP Properties (2006) 145 LGERA 234
Director-General of the Department of Land and Water Conservation v Greentree (2003) 131 LGERA 234
Environment Protection Authority v Anning (1998) 100 LGERA 354
Environment Protection Authority v Emerald Peat Pty Ltd (In Liq) [1999] NSWLEC 147
Environment Protection Authority v Hardt (2006) 148 LGERA 61
Environment Protection Authority v HTT Huntley Heritage Pty Ltd (2003) 125 LGERA 332
Environmental Protection Authority v Peters [2006] NSWLEC 465
Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited [2008] NSWLEC 138
Hamilton v Whitehead (1988) 166 CLR 121
Owen v Willtara Construction Pty Ltd (1998) 103 LGERA 137
Port Stephens Council v Robinsons Anna Bay Sand Pty Ltd [2007] NSWLEC 240
Presidential Security Services of Australia Pty Ltd v Clinton Joseph Brilley (2008) 67 ACSR 692
R v Buckett (1995) 79 A Crim R 302
Tesco Supermarkets Ltd v Nattrass [1972] AC 153
Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715

DATES OF HEARING:

28 July 2009

 
DATE OF JUDGMENT: 

31 August 2009

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr Buchanan SC with Mr Fraser
SOLICITOR
The Hills Shire Council

DEFENDANT
No appearance
SOLICITOR
Nyman Gibson Stewart

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PEPPER J

31 August 2009

50085 of 2008 The Hills Shire Council v Petre Suciu

JUDGMENT

Introduction

1 HER HONOUR: By further amended summons filed in Court on 24 July 2009, the defendant is charged with an offence contravening s 143 of the Protection of the Environment Operations Act 1997 (“the POEOA”), namely, that between 25 December 2005 and 9 February 2006 at 95 Cranstons Road, Middle Dural in New South Wales (“the site”), the defendant was the director of a corporation, Maraline Pty Ltd (“Maraline”), that transported waste to a place that could not be lawfully used as a waste facility.

2 The defendant is also charged pursuant to s 169 of the POEOA. This provision provides that if a corporation commits an offence against the Act then the director of the corporation is deemed to be guilty of the offence, unless the director proves one of more of the stipulated defences. The director is not guilty of the corporation’s offence, but is guilty of a separate and individual offence (Director-General of the Department of Land and Water Conservation v Greentree (2003) 131 LGERA 234 at [105]). That the corporation has not been similarly charged does not matter (s 169(2) of that Act).

3 The particulars of the charge are as follows:

(a) the defendant is charged by the operation of s 169 of the Protection of the Environment Operations Act 1997. The corporation Maraline Pty Ltd ACN 066 885 872 contravened s 143 of the Protection of the Environment Operations Act in the manner particularised below. The defendant was at all times the sole director of Maraline Pty Ltd as well as being concerned in the management of the corporation as its managing director and being the person having the day to day responsibility for control of the company’s affairs including its principal business of waste transport and disposal contracting;

(b) transporting: Maraline Pty Ltd (under the management and direction of the defendant) transported the waste;

(c) waste: comprised silty clay, sandstone boulders, concrete blocks, bricks, asphaltic concrete (bitumen), scrap metal, plastic, rags, sand, clay, fibro-cement pieces (asbestos), and construction demolition waste containing broken sewer pipes, hardened concrete, mixed wood and bricks as well as hardened concrete slurry;

(d) unlawful place to where waste transported: the property known as 95 Cranstons Road, Middle Dural, including in particular, on an old quarry area and immediately adjacent to and around the edges of the old quarry area.

4 The prosecutor alleges that Maraline committed the principal offence by its sole director, the defendant, and by various unnamed servants or agents for whom the corporation is liable, who drove trucks containing the waste to the site and deposited it thereupon.

5 Because the offence period is late December 2005 to early February 2006, the applicable legislative regime consisted of the provisions relating to waste, waste facilities and the transport of waste under the POEOA before the commencement on 1 May 2006 of the Protection of the Environment Operations Amendment Act 2005.

6 The offence is charged as a continuing offence. That is, it is alleged that it was committed as a continuing course of conduct between the nominated dates.

Proceedings Are Ex Parte Against the Defendant

7 The proceedings were conducted ex parte pursuant to an order made by Sheahan J on 10 July 2009, under s 250 of the Criminal Procedure Act 1986 (“the CP Act”).

8 There is no question that the Court has the power to convict the defendant in his absence (Environment Protection Authority v Peters [2006] NSWLEC 465 at [20]-[22] of the “Annex: Reasons for Proceeding Ex Parte” and Port Stephens Council v Robinsons Anna Bay Sand Pty Ltd [2007] NSWLEC 240 at [2]-[4]). In Bentley v BGP PropertiesPty Ltd (2006) 145 LGERA 234 Preston CJ stated at [30]-[32] and [34]-[35]:

[30] Notwithstanding the non-appearance of the defendant at the hearing, the Court has power to convict and sentence the defendant in its absence.

[31] Section 41 of the Land and Environment Court Act 1979 NSW (LEC Act) provides that Pt 5 of Ch 4 of the CP Act applies to proceedings in Class 5 of the Court's jurisdiction. Section 41 took effect from 7 July 2003. The section was inserted by the Justices Legislation Repeal and Amendment Act2001 NSW (s 4, Schs 2, 2.132[3]).

[32] Section 250 of the CP Act (which is in Pt 5 of Ch 4) confers power on the Court to proceed to hear and determine the matter in the absence of the defendant:

If the accused person does not appear on the day and at the time and place set by an order under Division 2 (or on a day to which a hearing has been adjourned) the court may, if satisfied that the order was served on the accused person:
(a) proceed to hear and determine the matter in the absence of the accused person…

…

[34] In Environment Protection Authority v Emerald Peat Pty Ltd (in liq) [1999] NSWLEC 147, this Court proceeded ex parte against a company in liquidation pursuant to s 49 of the LEC Act. Section 250 of the CP Act is the successor to s 49 of the LEC Act, which was amended by the Justices Legislation Repeal and Amendment Act (s 4, Schs 2, 2.132[3]).

[35] The Court can and should proceed to hear and determine the proceedings, notwithstanding the absence of the defendant.

9 Prior to the order by Sheahan J referred to above, the defendant had not entered a plea, and accordingly, the matter proceeded as if the defendant had entered a plea of not guilty (Environment Protection Authority v Emerald Peat Pty Ltd (In Liq) [1999] NSWLEC 147 and Port Stephens Council v Robinsons Anna Bay Sand Pty Limited [2007] NSWLEC 240).

10 At the commencement of the hearing the Court was informed by the prosecutor that Mr Stewart of Nyman Gibson Stewart, solicitors, remained the solicitor on the record for the defendant. Whilst Mr Stewart had filed a Notice of Ceasing to Act, the Notice only pertained to summonses that had previously been withdrawn by the prosecutor and which were not the subject of the present proceedings.

11 The prosecutor informed the Court that Mr Stewart was aware of the hearing date of these proceedings, but that he had informed the prosecutor’s solicitor that he would not be attending today and that he would file a Notice of Ceasing to Act later in the day. As at both the date of the hearing and the date of the publication of these reasons, no Notice had been filed.

12 Mr Stewart also stated to the prosecutor’s solicitor during the same telephone conversation that he had received a photograph from a woman claiming to be the defendant’s wife allegedly showing the defendant in a hospital bed overseas. No further details, however, were given.

13 As there was no application before the Court to set aside the orders of Sheahan J made on 10 July 2009 that this matter be heard ex parte, and given the highly unsatisfactory nature of the evidence in relation to the alleged photograph, the Court proceeded to hear the matter. The Court noted that Mr Stewart was still the solicitor on the record for the defendant.

Statutory Framework

14 Section 143(1)(a) of the POEOA provides as follows:

143 Unlawful transporting of waste
(1) If a person transports waste to a place that cannot lawfully be used as a waste facility for that waste:
(a) the person, and
(b) if the person is not the owner of the waste, the owner,
are each guilty of an offence.
Maximum penalty:
• in the case of a corporation—$250,000, or
• in the case of an individual—$120,000.
(2) 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.

15 Section 169(1) of the Act provides:

169 Offences by corporations
(1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision, unless the person satisfies the court that:
(a) 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
(3) Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation against this Act or the regulations.
(4) Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular intention, is evidence that the corporation had that intention.

16 The term “waste” is specifically and inclusively defined in s 143(4) for the purpose of that offence as, “in this section”:

waste includes any unwanted or surplus substance (whether solid, liquid or gaseous). A substance is not precluded from being waste merely because it may be reprocessed, re-used or recycled.

17 The term “substance” is defined in the Dictionary of the Act as including any “matter or thing”.

18 The term “waste facility” is relevantly defined in the Dictionary of the Act as:

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

Elements of the Offence

19 The elements of the offence are, therefore, that:

(a) during the offence period the defendant, either himself or through Maraline, transported to a place;

(b) something which was “waste” within the meaning of the Act;

(c) the place could not lawfully be used as a “waste facility” within the meaning of the Act; and

(d) the defendant was a director of Maraline at all relevant times, and therefore, was the primary offender.

20 In addition, it is necessary for a finding of guilt that there has been no satisfaction of any of the defences available during the charge period under s 169(1). The onus of establishing the existence of any such defence falls upon the defendant.

Facts Giving Rise to Charge

Evidence of Mr Yates

21 The principal evidence in the proceedings came from Mr Norman Yates, the owner of the site. The site was a semi rural residential acreage with a disused sandstone quarry at the back. The proprietors of the site were Mr Norman Yates and his wife.

22 Mr Yates wanted to fill this quarry with clean fill. In June 2005 he arranged with Mr Nakhle Jourieh (or “Nick”) of HNJ Excavations & Demolitions Pty Ltd (“HNJ”) to deliver some clean top soil to the site. The fill was to be delivered to the front of the property. Subsequently this occurred.

23 On or about December 2005, Mr Yates received two notes under his door from a man called “Peter” giving a specific mobile number, namely, “0425 278 988”. One of the notes was expressed to be “about tipping soil”.

24 Mr Yates responded to these notes by calling the defendant on the mobile telephone number referred to therein. The defendant answered and offered to deliver truck loads of clean fill to Mr Yates’ property and to level it out for him.

25 Subsequently a man – the defendant - turned up to the site and introduced himself as “Peter” and spoke to Mr Yates. The defendant obtained Mr Yates’ consent to him dropping off a front end loader to shift the soil when it arrived.

26 About a week later, a green front end loader was delivered to the site. Several days after the delivery of the front end loader, a truck arrived at the site. It delivered top soil to the quarry, but because of inclement weather the truck became bogged. The driver told Mr Yates that he had rung the defendant who would come out to push him with the loader. Mr Yates left on business and when he returned that night the truck was gone but the loader was still in the quarry.

27 The next day Mr Yates told the defendant the quarry was too boggy for any further soil to be delivered. He told the defendant that he did not want any soil delivered while he was away on business in the United States. Mr Yates said that he would ring the defendant upon his return to arrange for delivery of the soil. The defendant agreed to this course of action.

28 On 19 January 2006, Mr Yates travelled to the United States with his family. He did not return until 3 February 2006.

29 On 2 February 2006, while Mr Yates was away, council officers inspected the site as a result of a complaint of heavy truck activity on it. They observed piles of fill across approximately 100m2 in one section and across 50m2 in another section of the quarry. On examination the fill contained fibrous material, construction and demolition material and other waste materials such as broken sewerage pipes, hardened concrete mix, wood and bricks. The fill had no vegetation cover suggesting that it had recently been placed there.

30 When Mr Yates returned from the United States on or about 4 February 2006, he noticed that fill had already been deposited on site. He also saw the same Volvo truck and trailer as that which had been previously bogged in the quarry. It had just tipped a load of waste fill in the quarry. He observed the registration number of the truck as “YMX-754”. Upon being questioned by Mr Yates, the driver told Mr Yates that he “had been bringing and dumping this here for Peter”. The driver also told Mr Yates that it was “Peter” who had been giving him instructions on where to dump the fill.

31 Mr Yates attempted to call the defendant but the mobile phone number he had been given on the notes, and which he had previously used successfully, was disconnected.

32 On 6 February 2006, two white double bogey trucks arrived and dumped their loads into the quarry. The loads included concrete slurry. The drivers told Mr Yates that “Peter” had sent them. Mr Yates told them to leave.

33 That same day council officers inspected the property again and observed and photographed the freshly dumped material.

34 Later that day Mr Yates called Mr Nick Jourieh and obtained a new telephone mobile number for the defendant. The number given to Mr Yates by Mr Jourieh was “0425 284 228”.

35 On 6 February 2006, the defendant called Mr Yates’ house and told him that the material which had been dumped was not his but “Nick’s”.

36 Mr Yates spoke to the defendant by telephone on 7 February 2006, and told him that the council had been out to inspect the site. The defendant asked Mr Yates, “who gave you this number, the truck driver?” Mr Yates told the defendant to come to his property and to remove the dumped material. The defendant stated that he would “come out” to pick up the dumped material.

37 The defendant arrived at the site in a Land Rover with a South Australian registration number noted by Mr Norman Yates and his son, Mr Gavin Yates, as “TDL-780”.

38 After arriving at the site the defendant looked at the fill area, picked up some material and told Mr Yates that it was not asbestos but chipboard. The defendant suggested to Mr Yates that he apply to the council for development consent to level off the site. He further stated to Mr Yates, “if I have to remove it all I will”. Mr Gavin Yates also heard the defendant say this.

39 The council officers had, sometime earlier, told Mr Yates that he needed to install a silt fence to prevent the fill from escaping into the creek below. In order to do so, Mr Yates decided that the edge of the slope or batter of the fill needed to be straightened. On or about 7 February 2006, Mr Yates asked the defendant to use his loader to straighten up the edge of the batter.

40 On 9 February 2006, the defendant again came to the site in a Land Rover. Whilst there he fuelled up the loader and used it to move the fill around the site in an endeavour to straighten up the edge of the batter. He said to Mr Yates, “if I have to I will start removing the fill from Saturday”. When Mr Yates returned to the site later that day he noticed that the loader was gone.

41 When the defendant came to the site to straighten the edges of the batter of the fill, Mr Norman Yates observed a Volvo truck door sitting inside the Land Rover. The defendant explained to him that the Volvo truck door had been taken off in an accident and that the door inside the Land Rover was a replacement door. While Mr Gavin Yates could not recall seeing a Volvo truck door inside the Land Rover, he conceded that he had not engaged in a close examination of the interior of the vehicle. Both Mr Norman Yates and Mr Gavin Yates observed a woman and a child in the Land Rover at the time.

42 Mr Yates then embarked on a campaign of surveillance of the defendant. He followed the defendant to his operational premises at Aussie Skip Bins, a waste depot located in South Strathfield. Whilst there he observed a Volvo truck parked on site. He followed a Mack truck with registration number “AB5-2ME” and dog trailer with registration number “Q78-213” to Appin and watched the truck dump its material onto an acreage with a dwelling. Mr Yates gave the information he obtained from his surveillance activities to the council officers. Both the truck and trailer were subsequently found to be registered to Maraline.

43 The defendant turned up one more time unannounced. Mr Yates could not recall exactly when, but recalled a conversation in the following terms taking place:

defendant: “I was told to come out here by Aussie Skips”.

Mr Yates: “Council has asked us not to touch the material on our property and I have given written assurance that I won’t”.

defendant: “All you have to do is put in a DA to push the stuff around. I will hire a bob cat at my own expense to spread it around for you”.

44 On 9 March 2006, council officers spoke with the defendant and asked him whether he would take part in an identification parade. The defendant refused and it was on this occasion that the defendant was photographed by the officers.

45 When shown a series of photographs both Mr Norman Yates, and his son Mr Gavin Yates, identified the defendant as a man with whom Mr Norman Yates had been dealing in relation to the fill deposited at the site.

46 Mr Yates also identified the Volvo truck that he observed on his property as similar to a 2001 Volvo NH12 prime mover that he later saw in a web based advertisement.

Evidence of Mr James Penney and Mr Michael Drew

47 Mr James Penney deposed in an affidavit meeting the defendant at the end of May or early June 2006 at his property in South Maroota. When he first met the defendant he was driving an old cream Mercedes Benz. The defendant offered to deposit clean soil at South Maroota and over the next couple of months during June and July 2006, trucks came onto the property and dumped clean soil. The soil was then spread around the property with the aid of a green loader. At first, the soil that was deposited on the property was clean, however, by about late June 2006, the trucks began to also dump construction and demolition waste onto the property.

48 Mr Penney approached the defendant and asked him to stop. However, the depositing of construction and demolition waste continued. In order to ensure that the deposits ceased as requested, Mr Penney and a neighbour, Mr Michael Drew, disconnected the fuel line to the defendant’s green loader located on Mr Penney’s property. Prior to reconnecting the fuel line, Mr Penney demanded that the defendant leave him his details, which he did, handwritten on a piece of paper and given to Mr Drew.

49 Later, when questioned by Mr Craig Woods of the council, Mr Penney identified from photos the cream coloured Mercedes Benz that the defendant had driven onto his property. Mr Penney was also able to identify the defendant from various photographs of male persons shown to him by Mr Woods.

50 Mr Michael Drew gave evidence that corroborated that of Mr Penney. Mr Drew further stated that when he was reconnecting the fuel line to the green loader, the defendant said to him “don’t worry I am going to take Jim to the council to put in a development application for the fill”.

51 Mr Drew was able to produce the piece of paper handed to him by the defendant. Significantly, the piece of paper had written on one side, “PETER SIMON 10 SMITH STREET WOLLONGONG 2500 PH 0425281228”. On the other side of the piece of paper was written, “ALL TYPES OF RUBBISH HILLS RD LOT 1 HOMEBUSH BAY”. Mr Drew was able to identify the cream coloured Mercedes Benz when photos of the vehicle were shown to him by Mr Craig Woods and he was able to identify the defendant from coloured photographs of different males.

Expert evidence

size and contamination of fill

52 The prosecutor relied on an affidavit of Mr Jace Pearson, a registered surveyor, who opined that that approximately 3,000m3 of fill had been deposited on the site.

53 Mr Indra Jworchan of Geotechnique Pty Ltd (“Geotechnique”) carried out a geotechnical investigation in order to ascertain the thickness of the fill located on the property. In addition to confirming the estimate given by Mr Pearson, Mr Jworchan stated that, “based on composition, the existing fill is assessed to be uncontrolled and not suitable as foundation materials for any structures to be built over”. Further, the thickness of the fill varied from about 2m to 3m in most portions of the site and was predominantly comprised silty clay of low to high plasticy, with abundant deleterious materials including sandstone boulders, concrete blocks, bricks, asphaltic concrete (bitumen), scrap metal, plastic, rags and other material.

54 Mr John Xu, a senior environmental scientist with Geotechnique, undertook an investigation of the asbestos contamination of the fill located at the site. His investigation confirmed that asbestos was located throughout the fill material. That is to say, six out of the seven tested fibro-cement pieces recovered from the fill at various test locations were asbestos. Likewise, asbestos was found in the soil of the stockpile and generally on the ground surface of the area where the fill had been placed. Accordingly, remediation of the site was, in Mr Xu’s opinion, required.

55 Mr Xu further stated that because of the presence of bitumen and/or scrap metal, which could be additional sources of contamination, the fill and the stockpiles needed to be analysed for potential contaminants such as petroleum hydrocarbons and heavy metals.

handwriting analysis

56 The evidence of a handwriting analyst, Mr Paul Westwood OAM, demonstrated that:

(a) the two notes left under Mr Yates’ door were written by the same person;

(b) impressions on the back of one of the notes left under Mr Yates’ door revealed a telephone number. Subsequent evidence confirmed that this was the telephone number for Mr Nick Jourieh. The impression on the note was therefore consistent with the defendant having written Mr Jourieh’s number down on the same pad of paper as that upon which he wrote the first note to Mr Yates; and

(c) the person who wrote the two notes was the same person who wrote the note given to Mr James Penney and Mr Michael Drew towards the end of July 2006.

57 While one explanation proffered by the prosecutor for the impressions uncovered by the handwriting analyst of Mr Jourieh’s telephone number was that the defendant had learned that Mr Yates’ property was a potential site for the tipping of waste materials from Mr Jourieh, I decline to draw this inference on the limited evidence available before me.

Defendant’s evidence

58 Before the Court there was evidence from the defendant consisting of an unsworn statement made by him dated 24 April 2008, which appeared to have been prepared in answer to the charge. In it the defendant contradicted almost all of Mr Yates’ account of events.

59 The defendant admited that he was the sole director and secretary of Maraline from 21 October 1994 up until the company was placed into liquidation in February 2008. The defendant stated that Maraline conducted the business of waste transport and disposal and that he had experience in the transport and disposal of waste material.

60 The defendant stated that Maraline owned the following equipment at the time of the alleged offences:

(a) a 1989 Volvo N12 prime mover, registration number YNX-754;

(b) a 1979 Highgate aluminium tri-axle tipper, registration number P97679;

(c) a 1979 BM Volvo front end loader, unregistered;

(d) a 1980 Isuzu rigid tray, registration number ZLC-356;

(e) a 1986 Mack Superline prime mover, registration number AB-59ME; and

(f) a 1986 trailer tri-axle dog, registration number Q78215.

61 The defendant stated that Maraline did not employ full time staff, however, Mr Pepita Campbell worked for Maraline on a casual basis at the time of the alleged offences. The defendant stated that both he and Mr Pepita Campbell operated the loader at Mr Yates’ property to smooth and level the loads of fill that Mr Nick Jourieh had dumped at the property. These activities were undertaken at the request of either Mr Norman Yates, Mr Nick Jourieh or Mrs Joanne Jourieh. The defendant denied that he had ever taken any of his trucks, or instructed any of his drivers to take any of his trucks, to Mr Yates’ property to dump their loads. The defendant stated that the only piece of machinery that had been on Mr Yates’ property was his loader.

62 The defendant stated that in early December 2005, he had a conversation with Mr Jourieh wherein Mr Jourieh told him that he had been dumping loads of waste material for over a year at Mr Yates’ property and that he had approval from council to do so. It was during this conversation that Mr Jourieh asked the defendant if he could level out the dumped loads. Mr Jourieh stated that he would pay Maraline $800 for transporting the loader to Mr Yates’ property and $80 an hour for levelling the loads that he dumped.

63 Approximately two weeks after this conversation, the defendant stated that he was contacted by Mr Tony Van Zeyl, a director of All Types of Rubbish. The defendant went to see Mr Van Zeyl and pursuant to a conversation with him, the defendant subsequently called Mrs Joanne Jourieh and told her that, “Tony” “has loads of soil that he needs to transport to a tip and I have spoken to him about tipping it in Dural”. The defendant alleges that Mrs Joanne Jourieh indicated to him that the loads could be tipped at the site. The price agreed was $250 per load for the transport and $50 cash per load for tipping. The defendant stated that he would use his machinery to level the dumped material as discussed “with Nick”. The defendant then arranged with “Tony” that Tony would pay him $300 per load, and therefore, the defendant would make a profit of $50 per load.

64 The defendant stated that he then arranged with Mrs Joanne Jourieh that HNJ would pick up 21 loads from the All Types of Rubbish job at Homebush during the period 26 December 2005 to 4 January 2006, and would tip the loads onto Mr Yates’ property. This occurred and Maraline subsequently charged All Types of Rubbish $6,075 for transportation. HNJ charged All Types of Rubbish a tipping fee of $2,100 for the 21 loads. Invoices to this effect were attached to the defendant’s statement.

65 The defendant denied having written either of the notes placed under Mr Yates’ door. The defendant stated that the first time he attended Mr Yates’ property was when he dropped off the loader on 6 January 2006. This was pursuant to a telephone conversation between himself and Mr Yates on 4 January 2006, when Mr Yates telephoned him and asked him to bring his loader to the property. The defendant stated that Mr Yates had told him that Mr Jourieh had given him the defendant’s number.

66 The defendant stated that on 6 January 2006, he hired a person to pick up his loader and transport it on a float to Mr Yates’ property. The name of the company was Hollyland Heaving Haulage & Tipper Hire. Hollyland charged Maraline $800 for the haulage.

67 In oral evidence before the Court, Mr Nicola Abu Awad, the owner of Hollyland Heavy Haulage & Tipper Hire, confirmed that an invoice had been rendered to the defendant for haulage fees, that the invoice had been issued to the defendant at Maraline and that it was the defendant who had paid the invoice.

68 The defendant stated that at several times when he was at Mr Yates’ property levelling soil, he saw Mr Jourieh’s trucks bringing in loads of soil. Furthermore, the defendant stated that on numerous occasions throughout January and February 2006, either Mr Nick Jourieh or Mrs Joanne Jourieh contacted him and requested him to attend Mr Yates’ property and to level the material dumped there. The defendant stated that upon the delivery of his loader to Mr Yates’ property on 6 January 2006, it remained there until 9 February 2006.

69 The defendant stated that on or about 17 or 18 January 2006, either Mr Nick Jourieh or Mrs Joanne Jourieh contacted him and asked him to push one of Mr Jourieh’s trucks out of the quarry with his loader because it had become bogged. The defendant did as requested. The defendant stated that while this occurred, no conversation with Mr Yates took place and that he did not see him there.

70 The defendant stated that he had never owned a Land Rover or a Land Cruiser with a South Australian registration number “TDL-780”, nor had he ever driven a Land Rover with that registration number. The defendant stated that at all relevant times he drove a black BMW. The defendant also denied that Maraline had ever owned a white Mack truck. However, the defendant did admit that a Mack truck was registered to Maraline during the time of the charge period. The defendant also denied ever having taken his wife or child to Mr Yates’ property.

71 Finally, the defendant stated that Mr Yates and Mr Jourieh were seeking to implicate him because Mr Yates had wrongfully brought fill onto his property, aided and abetted by Mr Jourieh.

Evidence of Mr & Mrs Jourieh

72 The defendant’s account was wholly contradicted by the sworn evidence of Mr and Mrs Jourieh.

73 Mr Nick Jourieh stated that he had never paid Mr Yates money to accept fill on his property. He said that whilst he knew the defendant and a company by the name of Maraline, he did not know Mr Tony Van Zeyl and he had never heard of a company by the name of All Types of Rubbish. Mr Jourieh denied that he had arranged for fill to be taken to the site on 26 December 2005. Mr Jourieh stated that he had seen the fill on the site and that it was not his. He did confirm, however, that he had taken four loads of clean top soil to the site and deposited it at the front of the property.

74 Mr Jourieh denied that it was one of his trucks that got bogged at the site. He also denied that his company took 21 loads of fill to the site from around late December 2005 to early January 2006. Mr Jourieh was able to demonstrate that from 27 December 2005 to 10 January 2006, he was in Lebanon visiting relatives and friends.

75 In relation to the invoices to the defendant from Mr Jourieh’s company provided by the defendant to council officers, Mr Jourieh stated that the defendant would have been invoiced for truck hire. Mr Jourieh stated, “we all hire trucks from each other in the business to do jobs”. Mr Jourieh stated that he did not know what the hired trucks were being used for. Mr Jourieh confirmed that he had assisted Mr Norman Yates to contact and locate the defendant.

76 In relation to invoices given by the defendant to council officers purportedly from All Types of Rubbish to HNJ Excavations & Demolitions, in respect of an invoice for an amount of $2,100 which had the words “95 Cranstons Road Middle Dural” written on it, Mr Jourieh stated that he had searched the records of HNJ and could not find any works undertaken by HNJ that related to a property at that address. The same exercise, yielding the same result, was undertaken in relation to an invoice that had the words “Maraline”, “All Types of Rubbish” and “95 Cranstons Road Middle Dural – proprietor Mr Norman Yates – instructions from Mr Nakhle Jourieh (Nick) of the company HNJ Excavations & Demolitions (tip fee pay Nakhle)” written on it.

77 Mr Jourieh’s evidence was corroborated by the sworn evidence of his wife, Mrs Joanne Jourieh, who was involved in the running of her husband’s company. She denied that she had ever arranged with the defendant, or his company Maraline, for the transportation to and unloading of excavation and demolition waste on the site. In particular, she denied that she had arranged the dumping of 21 loads of waste at the site.

Evidence of council officers

78 Various affidavits from council officers (Craig Woods sworn 12 March 2008 and 23 June 2008; Kim Muffet sworn 12 March 2008; Charles Meader sworn 11 March 2008 and 11 July 2008; Parmit Singh sworn 11 March 2008 and Ravinderjit Singh sworn 11 March 2008) were read during the course of the proceedings. Their evidence stated the following:

(a) that, when questioned, the defendant at all times denied that he was in any way responsible for the dumping of the fill at the site, claiming instead that it was Mr Nick Jourieh who took the fill to the site and that Mr Jourieh had told him that Mr Yates had been importing and accepting fill from Mr Jourieh for the “last few years”. The defendant stated that it was only levelling which was undertaken by him on the site, albeit with his machinery;

(b) that fill had been dumped without council permission at the site. The landfill material included various amounts of fibro-cement pieces, plastic, pieces of tile, concrete, bricks, bitumen, concrete mix and hardened concrete slurry. The fill covered an extensive area;

(c) that no development consent had been issued in respect of the site for development concerning the use of the land as a place that could receive waste fill pursuant to, and as required by, the Baulkham Hills Local Environmental Plan 2005 (“the BHLEP”);

(d) that having been shown a number of colour photographs of male persons, both Mr Norman Yates and Mr Gavin Yates identified a photograph of the defendant as the person responsible for importing the waste fill onto the property;

(e) that when council officers visited the defendant’s residence, a cream coloured Mercedes Benz was parked in the driveway. They proceeded to take photos of the vehicle. It was these photos that were shown to Mr Penny and Mr Drew;

(f) that during a telephone conversation between Mr Charles Meader, the Manager of Compliance and Enforcement for the council, and Mr Pepita Campbell on 4 July 2008, Mr Campbell told him that the name of one of the drivers dumping fill at the site was “Nik”. Mr Campbell also stated that he was operating the dozer to spread the fill on the instructions of “Peter”. Mr Campbell denied that the property owner gave him instructions to spread the fill;

(g) on 13 April 2008, Mr Campbell wrote to Mr Meader and stated, in contradiction to the above conversation, that in fact it was Mr Yates who gave him instructions on where to level and move the fill;

(h) on 20 February 2009, after Mr Pepita Campbell had failed to attend a meeting that had been arranged between him and Mr Meader on 19 February 2009, Mr Meader had a telephone conversation with Mr Campbell wherein Mr Campbell said:

I am not going to any meeting. I have been offered a job by Peter Suciu and I am his witness and he has told me not to speak to you as I am his witness…Do not call me again.

(i) and that the other potential witness named by the defendant, Mr Tony Van Zeyl, could not be found despite attempts by the council officers to locate him.

Consideration and Findings

Credit of the defendant

79 The prosecutor submitted that the defendant’s account is false. The prosecutor submitted that it was the defendant’s company, Maraline, and not Mr Jourieh or HNJ, which through the defendant’s or Maraline’s servants and agents, took the waste onto the site and dumped it there. The Court accepts these submissions. Accordingly, the account of events given by Mr Yates is accepted over that given by the defendant.

80 The reasons for this are several. First, Mr Norman Yates’ evidence of his dealings with the defendant was uncontradicted by any sworn evidence of the defendant. The Court places little weight on the unsworn evidence of the defendant.

81 Second, Mr Yates’ evidence is, at least in part, corroborated by that of his son, Mr Gavin Yates. For example, Mr Gavin Yates saw the defendant drive to the property in a Land Rover bearing the registration number “TDL-780” and that he heard the defendant on another occasion say to his father, “if I have to remove it all I will”.

82 Third, mobile phone records attached to the defendant’s statement indicate that his mobile telephone number was 0425 278 988. This is the same number that was given to Mr Yates in the two notes placed beneath his door.

83 Fourth, the conclusion of the expert handwriting analysis, Mr Westwood, was that the person who wrote the two notes placed under Mr Yates’ door was the same person who wrote a similar note towards the end of July 2006 which was given to Mr James Penney and Mr Michael Drew at Maroota, where the defendant had also disposed of waste. Both Mr Penney and Mr Drew identified the author of that note as the defendant.

84 Fifth, the mobile telephone number given on the piece of paper by the defendant to Mr Penney and Mr Drew, was the same number given to Mr Yates in order to contact the defendant by Mr Jourieh and Mr Yates in fact contacted the defendant on this number.

85 In light of the expert evidence of Mr Westwood, the defendant’s mobile telephone phone records and the evidence of Mr Penney and Mr Drew, I find that the defendant was the person who wrote and placed the two notes under Mr Yates’ door.

86 Sixth, Mr Yates identified the person who came to his property on several occasions and who conversed with him initially about depositing clean topsoil at the site and later, removal of the dirty fill, as the defendant. Mr Gavin Yates made a similar identification.

87 Seventh, the evidence of Mr Norman Yates is that on two occasions the truck he observed on the site dumping waste was a Volvo truck and trailer with, on the second occasion on 4 February 2006, registration number “YMX-754”. Mr Yates’ evidence is that when he went to the defendant’s operational premises in South Strathfield he saw a Volvo truck which he later identified from an internet advertisement as similar to a Volvo N12 prime mover. The defendant admits in his unsworn statement that he has a 1989 Volvo N12 prime mover with the registration number “YNX-754”. This number is sufficiently similar to that observed by Mr Yates that the Court infers that it is the same vehicle. It was subsequently revealed that the vehicle was registered to Maraline. Thus the Court finds that the Volvo truck observed by Mr Yates on his property on 12 January 2006 and depositing waste on his property on 4 February 2006, belonged to Marline, and moreover, that it was not a vehicle owned or operated by Mr Joureih or HNJ.

88 I am strengthened in this regard by the observation of Mr Yates on 9 February 2006, of a Volvo truck door inside the Land Rover. The statement by the defendant to Mr Yates that this was a replacement door because the Volvo truck door had been damaged in an accident is strongly suggestive of a relationship of proprietorship between the defendant, or at least Maraline, and the Volvo truck.

89 Eighth, the Court finds that on 9 February 2006 the defendant said to Mr Yates, “if I have to remove it all I will”. I accept the submission of the prosecutor that this statement was an admission by the defendant that he was responsible for the dumped waste on the site and not Mr Jourieh. Of the same character, and to the same effect, is the statement made to Mr Yates by the defendant on 7 February 2008, namely, that he would “come out” to pick up the dumped material. Likewise the statement made by the defendant when he came to the site in the Land Rover on 9 February 2006 that, “if I have to I will start removing the fill from Saturday”.

90 Ninth, the conclusion as to the ownership of the Volvo truck is also significant because on 12 January 2006 when the Volvo truck got bogged, the driver of the vehicle told Mr Yates that he had rung the defendant who would attend the site to dislodge the vehicle. The Court finds that this was an admission that the driver’s employer was the defendant, or in the alternative, Maraline.

91 This finding is confirmed by the evidence of Mr Yates that when the defendant came to his property on 13 January 2006, after Mr Yates complained about the mess the removal of the truck had made of the verges on Cranston Road, the defendant effectively apologised for the trouble he had caused Mr Yates, gave him a bottle of whisky and shovelled mud off the road. In so doing, I find that the defendant’s actions were tantamount to an admission of responsibility for the damage caused by the truck.

92 Likewise, when on 4 February 2006 the driver told Mr Yates that he was depositing waste material there “for Peter”, I find that this amounted to an admission that the defendant was effectively his employer and that given the defendant’s relationship to Maraline and that the vehicle the driver was operating was owned by Maraline, that his employer was in fact Maraline. I further find that the dumping of the material on the site was done at the direction of the defendant.

93 Similarly when the defendant said to Mr Yates that, “all you have to do is put in a DA to push the stuff around. I will hire a bob cat at my own expense to spread it around for you”, I find that this was an admission by the defendant of responsibility for the dumping of the waste material at the site.

94 Tenth, whilst in his unsworn statement the defendant denied driving a Land Rover to Mr Yate’s property with South Australian registration plates numbered “TDL-780”, or ever owning such a vehicle, a South Australian Department of Transport, Energy and Infrastructure certificate showed that this registration number was assigned to a MAC tipper trailer, the owner of which was Maraline. The prosecutor invited the Court to infer that the plates of the tipper trailer had been swapped over to the Land Rover, at least on the occasions when the defendant was observed driving it by Mr Yates and his son. I draw this inference, and furthermore, I find that the defendant did drive to Mr Yates’ property, as observed by Mr Yates and his son Gavin, in a Land Rover bearing those plates and did have the conversation attributed to him by Mr Yates whilst present at the site.

Elements of the offence

“transports waste”

95 On the basis of the evidence of Mr Yates, there can be no reasonable doubt that the waste was transported to the site. The issue of the identity of the relevant “person” transporting the waste for the purpose of the offence is discussed in detail below.

96 The description of the materials found at the site analysed in the report of the contents of the test pits dug by the geothermal engineer, Mr Jworchan, is sufficient to demonstrate beyond reasonable doubt that the material transported to, and deposited at, the site was “waste” according to the definition of that term in the Act. This is because the description of the material deposited fulfilled the criteria of “unwanted or surplus substance”.

97 In Environment Protection Authority v HTT Huntley Heritage Pty Ltd (2003) 125 LGERA 332 at [19], Pearlman J found that construction and demolition material was “unwanted or surplus in the hands of its owners”. While her Honour in that case was dealing with the general definition of “waste” contained in the statutory dictionary, her comments are nevertheless apposite to the specific definition of that term in s 143. In the present case, there can be no doubt that the deposited material was at the very least unwanted substance, and therefore, “waste”.

the site was not a “place” that “could lawfully be used as a waste facility”

98 Although the onus is on the defendant to prove that the place to which the waste was transported can lawfully be used as a waste facility for that waste (s 143(3) of the POEOA), the prosecution nevertheless adduced evidence to demonstrate that the site could not lawfully be used for this purpose. On the basis of this evidence, and in the absence of any evidence from the defendant, I am satisfied beyond reasonable doubt that the place to which the waste was transported, namely, the site, could not “lawfully” be used as a “waste facility” for the reception of the waste.

99 First, there is no reasonable doubt that the defendant used the site for the disposal – that is to say, the getting rid of (Environment Protection Authority v Anning (1998) 100 LGERA 354 at [358]) – waste within the meaning of the Act and the site was therefore used as a “waste facility” as that term is defined (Owen v Willtara Construction Pty Ltd (1998) 103 LGERA 137 at [70]-[77]).

100 Second, a place cannot be lawfully used for a particular purpose if it does not have such lawful authority as is required for that use (Environment Protection Authority v Hardt (2006) 148 LGERA 61 at [72] and [97] per Preston CJ). In my view, it is beyond reasonable doubt that the site could not “lawfully” be used as a waste facility for the waste deposited at it because, as was submitted by the prosecution, it did not have the requisite development consent for use as a land fill under the Environmental Planning and Assessment Act 1979 (“the EPAA”) (Hardt at [69]-[79] and [97]-[98]).

101 Use of the land as a waste facility is “development” under the EPAA. The property was zoned “Rural 1(c)” under the BHLEP. Under the BHLEP the filling of land was development which required consent. The evidence demonstrates that no consent had been granted for the filling of land at the site.

102 Further, the Court accepts the prosecution’s submission that the use of the land as a waste facility could not be considered a use ancillary, incidental or subservient to a permitted use such as agriculture or home activities. Therefore, the use of the site as a landfill was unlawful under s 76A(1)(a) of the EPAA.

the defendant is the principal offender

103 As the owner and sole director of Maraline at the time of the offence, the conduct of the defendant was at all relevant times the conduct of the company. The defendant was the embodiment of the company, that is to say, its directing mind and will and not its servant or agent (Tesco Supermarkets Ltd v Nattrass [1972] AC 153 at [170]; Hamilton v Whitehead (1988) 166 CLR 121 at 127; Peters at [33]; Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited [2008] NSWLEC 138 at [187]-[188]; and Presidential Security Services of Australia Pty Ltd v Clinton Joseph Brilley (2008) 67 ACSR 692 at [145] and [156]). Based on the evidence before me I find it beyond reasonable doubt that this was so.

104 It is also clear from the material before me that Maraline was, at the time of the offence, in the business of transporting and depositing material, including waste. So much so was admitted by the defendant in his unsworn evidence, and accordingly, I find that this was its business and thus the effective business of the defendant for present purposes.

105 An issue as to the identity of the principal offender nevertheless arises because there was no evidence that the defendant himself drove or was directly involved in the transport and dumping of waste at the site. The prosecutor submitted, however, that insofar as the vehicles which transported the waste to the site were driven by persons other than the defendant, the clear inference from all of the evidence was that these persons were servants or agents of either the defendant or Maraline and that either the defendant or Maraline were vicariously liable for the conduct of these servants and agents (Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715 at 717).

106 The prosecutor submitted that the conclusion that the truck drivers who transported and deposited the waste at the site were the servants or agents of Maraline could be drawn from:

(a) the fact that the Volvo truck was registered to Maraline;

(b) the fact that the front end loader was hauled to the site and paid for by the defendant on behalf of Maraline;

(c) the admission to Mr Norman Yates on or about 12 January 2006 by the driver of the Volvo truck that he had to ring the defendant to get the bogged truck out of the quarry;

(d) the admission made by the defendant when he turned up at the site on about 13 January 2006 to remediate the damage that had been done by the bogged Volvo truck in getting out of the quarry;

(e) the admission made by the drivers to Mr Norman Yates of the vehicles which tipped waste on the site on or about 4 and 6 February 2006, that they were sent by “Peter”; and

(f) the admission by the defendant when Mr Yates rang him on 7 February 2006 about the depositing of waste that had taken place on the previous day, wherein the defendant said “who gave you this number, the truck driver?”.

107 Whether or not the persons - the drivers of the trucks - who transported and deposited the waste at the site were servants or agents of Maraline or of the defendant does not, in my view, matter in the end. This is because ultimately it was the defendant, whether as the directing mind and will of Maraline, or in his individual capacity, who directed and instructed the drivers to transport and deposit the waste at the site. Either way, liability for the acts of the drivers can be attributed to the defendant for the purpose of the offence contained in s 143(1) of the POEOA. This conclusion is reinforced by the terms of s 169(1) of the POEOA which deem the defendant to be liable for any contravention by Maraline of the Act.

108 In addition to the evidence referred to above at [106], the prosecution relied on the following evidence to prove that the principal offender was the defendant:

(a) the identification of the defendant as the author of the notes placed under Mr Yates’ front door;

(b) the identification of the defendant by Mr Norman Yates, Mr Gavin Yates, Mr Penney and Mr Drew; and

(c) the defendant’s admissions to Mr Yates of responsibility for the waste tipped at the site, when he stated:

(i) that he would “come out” to pick up the dumped material;

(ii) that “if I have to remove it all, I will”;

(iii) that “if I have to I will start removing the fill from Saturday”; and

(iv) that “all you have to do is put in a DA to push the stuff around. I will hire a bob cat at my own expense to spread it around for you”.

109 Having regard to totality of the evidence before me, I find that it has been proved beyond reasonable doubt that the defendant was the principal offender.

Defences

110 There is no evidence from the defendant as to the matters available by way of defence under either ss 143(3)-(3C) or 169(1)(a)-(c) of the POEOA, and moreover, none of the evidence before the Court gave rise to any such defence. While the prosecutor accepted that it had an obligation to prove that any relevant defence available to the defendant would not have been successful (R v Buckett (1995) 79 A Crim R 302 at 309), as the evidence did not disclose the availability of any defence this issue did not arise.

Conclusion and Orders

111 The Court finds the offence charged in the summons proven.

112 The formal orders of the Court are therefore that:

(1) the defendant is guilty of the offence of unlawful transport of waste as charged in the summons; and

(2) leave is granted to the prosecutor to approach the registry forthwith to obtain a hearing date for the sentence hearing.
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03/09/2009	-	typographical errors - changed "principle" to "principal" - removed square brackets around page number 717 - Paragraph(s) 3(a), 4, 105
06/10/2009	-	Typographical error in Parties and Case Number - Paragraph(s) Coversheet
13/10/2009	-	Case Number reference incorrect - Paragraph(s) First page