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Court of Criminal Appeal 5 August 2013

Environment Protection Authority v Terrace Earthmoving Pty Ltd

[2013] NSWCCA 180

Also reported as (2013) 84 NSWLR 679
Other
CRIMINAL LAW BASE QUESTIONS OF LAW SUBMITTED MEANING OF "WASTE" WASTE OFFENCE OF TRANSPORTING WASTE

Citation: Environment Protection Authority v Terrace Earthmoving Pty Ltd [2013] NSWCCA 180
Court: Court of Criminal Appeal
Date: 5 August 2013
Judge(s): Basten ACJ; Hall J; Barr AJ

Background

The respondent, a company engaged in demolition and excavation work, removed by-products from building sites and used them as road-base material on private land. The Environment Protection Authority charged both the company and one of its directors with unlawfully transporting waste to a place that could not lawfully be used as a waste facility, contrary to s 143(1) of the Protection of the Environment Operations Act 1997 (NSW) (the Act).

The charges spanned two periods: 23 November 2005 to 30 April 2006, and 1 May 2006 to 1 March 2007. This distinction was significant because the Act was amended on 1 May 2006, altering the statutory definition of "waste". Separate charges were filed for each period to reflect the different definitions in force.

At trial in the Land and Environment Court, Craig J found he was not satisfied beyond reasonable doubt that the material transported by the company was "waste" within the meaning of s 143. Before formally dismissing the charges, the trial judge submitted nine questions of law to the Court of Criminal Appeal under s 5AE of the Criminal Appeal Act 1912 (NSW).

  • Whether the definition of "waste" in the Act's Dictionary applied to charges under s 143(1) during the first charge period (before 1 May 2006), or whether the s 143(4) definition applied exclusively
  • Whether demolition material sorted prior to transport, and intended for use as road-base, was "unwanted or surplus" and therefore "waste" during the first charge period
  • Whether the same analysis applied during the second charge period under the amended Dictionary definition, which used the words "discarded, rejected, unwanted, surplus or abandoned"
  • Whether the trial judge correctly identified the relevant factors for assessing whether a substance is "waste," including the purpose, intentions of the transporter, and the recipient's intended use
  • Whether the act of "transporting" waste under s 143 includes depositing the substance at the destination
  • Whether the trial judge erred in treating the material's potential for reprocessing or recycling as relevant to whether it remained "waste"

Decision

Definition of "waste" during the first charge period: The Court confirmed that the Dictionary definition of "waste" had no application to s 143(1) prior to 1 May 2006. Because s 143(4) provided its own definition, "waste" was "specially defined" for that section, which triggered the exclusion in the Dictionary. The relevant test was whether the substance was "unwanted or surplus" in the hands of its owner or generator immediately before transport.

Factors relevant to "unwanted or surplus": The trial judge had considered a broad range of factors, including the intended use at the destination, the period before the material would be put to use, and whether it was stockpiled. The Court held that none of those additional factors were determinative. The central question was whether the substance was unwanted or surplus in the hands of the owner or generator at the time of transport. Sorting the material before transport did not itself constitute reprocessing, re-use, or recycling sufficient to change its character from waste to non-waste. A substance remains waste until one of those transformative steps is actually taken.

Definition of "waste" during the second charge period: The Court held that the amended Dictionary definition must be read as a whole. Paragraph (a) of that definition provided little practical assistance in the context of s 143(1). The words "discarded," "rejected," and "abandoned" in paragraph (b) describe actions of an owner that may assist in identifying whether a substance is "unwanted" or "surplus," but they do not operate as independent limbs divorced from the overall inquiry. A substance will remain waste even if it is intended to be sold, recycled, processed, recovered, or purified by a separate future operation.

Meaning of "transport": The Court held that "transport" under s 143(1) does not include depositing the substance at the destination. Deposition is a separate act, and the existence of a specific defence under s 143(3C) (where waste was not deposited) confirms that the offence of transporting waste is complete before any deposit occurs.

Orders Made

  • The Dictionary definition of "waste" had no application to s 143(1) during the first charge period; the s 143(4) definition applied exclusively.
  • "Transport" of waste under s 143(1) did not include depositing the substance at the destination.
  • For the first charge period, the only relevant factors were the nature of the substance and whether it was "unwanted or surplus" in the hands of the owner or generator; the broader factors applied by the trial judge were not open.
  • The qualification that a substance is not precluded from being waste merely because it may be reprocessed, re-used, or recycled reinforced rather than limited the definition; sorting prior to transport did not alter the material's character as waste.
  • For the second charge period, the Dictionary definition was to be considered as a whole; paragraph (b) informed the "unwanted or surplus" analysis; a substance remains waste until reprocessing, re-use, or recycling has actually occurred.
  • Question 9 (concerning the burden of proof regarding lawful authority to use land as a waste facility) was inappropriate to answer on the materials before the Court.
  • The proceedings were returned to the Land and Environment Court for final orders consistent with the Court of Criminal Appeal's answers.
  • No order as to costs was made.

Key Takeaways

  • Under s 143(1) of the Act, the critical question for "waste" status during both charge periods was whether the substance was unwanted or surplus in the hands of the owner or generator immediately before transport, not the intentions of the transporter or the recipient.
  • Sorting demolition material into categories intended for future reuse does not, of itself, transform that material from waste into non-waste; the transformative step of reprocessing, re-use, or recycling must actually have occurred before transport.
  • The Court of Criminal Appeal confirmed that "transport" under s 143(1) is complete before any deposition at the destination, consistent with the separate deposition defence in s 143(3C).
  • Where legislation provides a special definition of a term within a specific section, a general dictionary definition with a "unless specially defined" qualifier is displaced, even where both definitions appear in the same Act.
  • The amended Dictionary definition of "waste" (applicable from 1 May 2006) must be read as a whole; relying on only one limb of a multi-limb definition, in isolation, constitutes an error of statutory construction.

Legislation and Cases Referenced

Legislation:
- Protection of the Environment Operations Act 1997 (NSW), ss 3, 115, 143, 144, 169, 241; Sch 1, Pts 1 and 3
- Criminal Appeal Act 1912 (NSW), s 5AE
- Crimes Act 1900 (NSW), ss 417, 417A

Cases:
- Environment Protection Authority v HTT Huntley Heritage Pty Ltd [2003] NSWLEC 76; 125 LGERA 332
- Shannongrove Pty Ltd v Environment Protection Authority [2013] NSWCCA 179 (companion case raising similar issues, heard concurrently)