Citation: Shannongrove Pty Ltd v Environment Protection Authority [2013] NSWCCA 179
Court: Court of Criminal Appeal, NSW
Date: 5 August 2013
Judge(s): Basten ACJ; Hall J; Barr AJ
Background
The appellant, a transport company, contracted with the operator of a waste processing facility at Eastern Creek to collect liquid by-product (a sludge produced from treating organic waste) and transport it to a dairy farm at Bringelly. The liquid was injected into the farm's soil as fertiliser. The farm was not licensed as a waste facility under the Protection of the Environment Operations Act 1997 (NSW) (the POEO Act).
The appellant was charged with two offences under s 143(1) of the POEO Act: transporting waste to a place that could not lawfully be used as a waste facility for that waste. The charges covered two periods: one before and one after 1 May 2006, the date on which significant amendments to the Act took effect, including changes to the definition of "waste" and a substantial increase in maximum penalties.
The Land and Environment Court convicted the appellant on both charges. The appellant appealed, arguing that the liquid by-product was not "waste" within the meaning of the Act, particularly given that the dairy farmer wanted and used it as a fertiliser.
Legal Issues
- Whether the liquid by-product constituted "waste" for the purposes of s 143(1) of the POEO Act, under both the pre- and post-May 2006 definitions.
- Whose perspective determined whether a substance was "unwanted or surplus": the producer, the transporter, or the recipient?
- Whether a substance ceased to be "waste" at the point it was accepted by a willing recipient or loaded for transport.
- Whether the proposed construction rendering certain statutory exceptions otiose (that is, pointless or redundant) was a reason to reject it.
- The proper approach to statutory interpretation, including the use of the Act's objects, legislative history, and other extrinsic materials.
Decision
Basten ACJ (with Hall J and Barr AJ agreeing) dismissed the appeal on both charges. On the first charge, the relevant definition of "waste" was the special definition in s 143(4), which applied before 1 May 2006 and displaced the Dictionary definition. That definition included "any unwanted or surplus substance (whether solid, liquid or gaseous)." Critically, it also provided that a substance is not precluded from being waste merely because it may be reprocessed, re-used, or recycled.
The court held that the liquid by-product was "unwanted" from the perspective of the facility that produced it. The fact that the dairy farmer wanted it and used it productively did not strip the substance of its character as waste. Accepting the appellant's argument that a substance loses its "waste" character once a willing recipient is found would render certain statutory exceptions in the Act futile. Those exceptions only make sense if the Act contemplates that waste transported to a place where it will be productively used remains waste for the purposes of s 143.
On the second charge, the post-May 2006 Dictionary definition of "waste" was broader in some respects. Among other things, it expressly contemplated that discarded or surplus substances intended for sale, recycling, or reprocessing could still constitute waste. The court found no basis for construing the new definition as more restrictive than the earlier one. Because the "unwanted or surplus" language from the first charge had equal application under the second charge's definition, the conviction on the second count also stood.
The court also addressed statutory interpretation methodology. General objects provisions in an Act are of limited use when construing the specific reach of a particular offence. The starting point remains the text. The court confirmed the proper approach under s 34 of the Interpretation Act 1987 (NSW): extrinsic materials may be used to confirm a construction that is the ordinary meaning of the text, or to resolve ambiguity, but not to override clear legislative language.
Orders Made
• The appeal in respect of the first charge must be dismissed.
• The appeal in respect of the conviction on the second charge must also be dismissed.
Key Takeaways
- The Court of Criminal Appeal confirmed that whether a substance is "waste" under s 143(4) of the POEO Act (pre-May 2006) is assessed principally from the perspective of the person or entity that produced or held the substance, not from the perspective of any recipient who may want it.
- A substance does not cease to be "waste" merely because a willing recipient intends to put it to productive use. The court reasoned that accepting the contrary argument would render several statutory exceptions in the POEO Act entirely redundant, a result courts will ordinarily avoid.
- Under s 143(4), the statement that a substance "is not precluded from being waste merely because it may be reprocessed, re-used or recycled" cuts against any argument that an intended beneficial application defeats a finding of waste.
- In dismissing the appeal on both charges, the court treated the pre- and post-May 2006 definitions as producing the same outcome on the facts: the post-2006 Dictionary definition was no narrower than its predecessor, and the key "unwanted or surplus" language carried through both periods.
- General objects provisions in environmental protection legislation carry limited weight when construing the specific scope of a particular offence. The text of the operative provision and its internal structure remain the primary interpretive tools.
Legislation and Cases Referenced
Legislation:
- Protection of the Environment Operations Act 1997 (NSW), ss 3, 5, 48, 115, 143; Sch 1, Pt 3; Dictionary
- Criminal Appeal Act 1912 (NSW), ss 5AA, 5AB, 5AE
- Interpretation Act 1987 (NSW), ss 33, 34
Cases:
- Environmental Protection Authority v Terrace Earthmoving Pty Ltd [2013] NSWCCA 180
- Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27
- CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384
- Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 87 ALJR 98
- Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380
- Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36; 246 CLR 379
- Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 35
- Environment Protection Authority v Shannongrove Pty Ltd [2010] NSWLEC 162; 176 LGERA 31