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Court of Criminal Appeal 12 December 2007

Hardt v Environment Protection Authority

[2007] NSWCCA 338

Other
ENVIRONMENTAL OFFENCE

Citation: Hardt v Environment Protection Authority [2007] NSWCCA 338
Court: NSW Court of Criminal Appeal
Date: 12 December 2007
Judge(s): Giles JA, Grove J, Harrison J

Background

The appellant was the owner of rural land at Wyee, NSW. He had obtained development consent in 1994 to construct a dwelling and associated structures, with a condition requiring the construction of an access road. To bridge a gully and create that road access, the appellant arranged for materials to be deposited on his land by two waste businesses.

The deposited fill extended approximately 300 metres in length and up to 33 metres wide. It included a wide range of waste materials: oil containers, batteries, fibro sheeting, car bodies, household rubbish, and food waste, among other items. The land did not hold a licence to operate as a waste facility, nor was there any development consent for landfill or waste facility use.

The appellant was charged under section 144(1) of the Protection of the Environment Operations Act 1997 with permitting land that could not lawfully be used as a waste facility to be so used. Preston CJ of the Land and Environment Court found the charge proved beyond reasonable doubt, convicted the appellant, imposed a fine of $12,000, ordered remediation of the site, and ordered payment of the respondent's legal costs of $105,000. The appellant appealed against his conviction and the remediation order.

  • Whether the land "could not lawfully be used as a waste facility" within the meaning of section 144(1), including whether that phrase extended beyond the Act itself to encompass the absence of development consent under other planning legislation
  • Whether "permits" in section 144(1) required the prosecution to prove that the defendant intended the land to be used for the purpose of a waste facility, or whether awareness of the relevant conduct combined with a failure to prevent it was sufficient
  • Whether the sentence and remediation order were appropriate

Decision

On the meaning of "permits," the Court of Criminal Appeal confirmed that the term does not require proof that a defendant intended or desired the land to be used as a waste facility. The correct test is that a defendant must have been aware of the actions constituting the use of the land as a waste facility and must have failed to exercise a right or power to prevent those actions. Knowledge and inaction are the operative elements, not purpose.

On the second element of the offence, the court upheld the trial judge's finding that the land could not lawfully be used as a waste facility. This was established on two alternative bases: first, no licence under the Act had been granted for such use; and second, the phrase "cannot lawfully be used" extended to lawfulness under other applicable legislation, meaning the absence of development consent under the Environmental Planning and Assessment Act 1979 also satisfied this element.

The court found no error in Preston CJ's conclusions on liability. The appellant had arranged for the waste deposits himself to serve his own purpose of constructing road access, and the trial judge was entitled to find that the appellant permitted the land to be used as a waste facility within the meaning of the section. The appeal against conviction and the remediation order was dismissed.

Orders Made

  • Appeal dismissed
  • Determination of the Land and Environment Court confirmed
  • The Registrar of the Court of Criminal Appeal was directed to send a copy of the reasons, grounds of appeal, written submissions, and hearing transcript to the President of the NSW Bar Association for such action as the President might consider appropriate

Key Takeaways

  • Under section 144(1) of the Protection of the Environment Operations Act 1997, "permitting" land to be used as a waste facility requires awareness of the conduct constituting that use and a failure to exercise a right or power to prevent it. No purpose or intention to use the land as a waste facility need be proved.
  • The phrase "cannot lawfully be used as a waste facility" in section 144(1) reaches beyond the Act itself. An absence of required development consent under the Environmental Planning and Assessment Act 1979 can independently satisfy this element of the offence.
  • A defendant's subjective purpose in allowing waste deposits (here, road construction for access) is not a defence to the charge. The physical reality of the use, combined with awareness and inaction, is determinative.
  • In dismissing the appeal, the Court of Criminal Appeal expressed serious concern about the standard of advocacy displayed by the appellant's counsel, finding that fundamental legal principles had not been understood and that the presentation of the appeal was significantly deficient. The matter was referred to the President of the NSW Bar Association.
  • A subsequent application for special leave to appeal to the High Court was dismissed: [2008] HCASL 513.

Legislation and Cases Referenced

Legislation:
- Protection of the Environment Operations Act 1997 (NSW), s 144(1) and Pt 8.2
- Environmental Planning and Assessment Act 1979 (NSW)
- Land and Environment Court Act 1979 (NSW), s 21(a)

Cases:
- 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
- Environment Protection Authority v Hardt [2006] NSWLEC 438; (2006) 148 LGERA 61
- Environment Protection Authority v Hardt [2007] NSWLEC 284