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Court of Criminal Appeal 2 August 2019

Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie

[2019] NSWCCA 174

Also reported as (2019) 101 NSWLR 245
Other
APPEAL AND REVIEW MEANING OF “WASTE” MEANING OF “ASBESTOS WASTE” WHETHER WASTE CONTAINED ASBESTOS SCHEDULED ACTIVITY STATUTORY EXCEPTION TO ONUS OF PROOF

Citation: Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie [2019] NSWCCA 174
Court: NSW Court of Criminal Appeal
Date: 2 August 2019
Judge(s): Preston CJ of LEC (principal judgment); Davies J and Adamson J (agreeing)

Background

The Environment Protection Authority (EPA) prosecuted a sand extraction company and its director for using land as a waste facility without lawful authority, contrary to s 144(1) of the Protection of the Environment Operations Act 1997 (POEO Act). Between October 2012 and May 2013, the company received large loads of material from recycling facilities and stockpiled them on its land, intending to use the material as road base. Asbestos was detected in the stockpiles, which held an estimated 24,000 to 44,000 tonnes of material.

At trial in the Land and Environment Court, the trial judge found both defendants not guilty but had not yet made final dismissal orders. The EPA sought to correct what it characterised as errors of law by requesting the trial judge to state questions of law for the Court of Criminal Appeal under s 5AE of the Criminal Appeal Act 1912, a procedure that allows legal errors to be corrected before final orders are made.

The defendants challenged both the procedural competency of the EPA's s 5AE request and the substantive legal conclusions the EPA sought to have overturned. The Court of Criminal Appeal addressed nine clusters of legal issues arising from 15 questions submitted by the EPA and one threshold question raised by the defendants.

  • Whether the EPA was permitted to make a second s 5AE request in substantially different form to its first, and whether it had waived or abandoned that right
  • Whether the recycled materials stockpiled on the land constituted "waste" under the POEO Act definition
  • Whether stockpiling the material amounted to the scheduled activity of "waste disposal by application to land" requiring an environment protection licence (EPL)
  • Whether stockpiling amounted to the scheduled activity of "waste storage" requiring an EPL
  • Whether exemptions under the Protection of the Environment Operations (Waste) Regulation 2005 applied, and which party bore the onus of proving them
  • Whether the presence of asbestos in the stockpiles constituted "asbestos waste" with distinct legal consequences
  • Whether any lawful authority existed under a development consent or other approval
  • Whether a continuing offence had been proven
  • Whether the charged offences were time-barred

Decision

Procedural threshold: The Court held that s 5AE permits the EPA to make a request at any time before the completion of proceedings, and that the form of questions can change substantially between an initial and final submission. The trial judge's obligation to submit questions of law arises from the Crown's request itself, not from the identification of any particular question. The EPA had not waived its right to make the request, and its conduct did not constitute an abuse of process.

Definition of "waste": The trial judge misconstrued the POEO Act's definition of "waste" in two respects. First, the paragraphs of the definition are not mutually exclusive; a substance can satisfy more than one paragraph simultaneously. Second, paragraph (d) of the definition (covering processed, recycled, re-used or recovered substances) does not require a preliminary inquiry into whether a substance was "applied to land" before considering whether it was so applied by one of the prescribed methods. Clause 3B of the Waste Regulation exhaustively defines what constitutes application to land, and depositing material in stockpiles fell squarely within that definition.

Scheduled activities: The trial judge erred in both areas. "Waste disposal by application to land" (cl 39, Sch 1) is conclusively defined by the methods listed in that clause; depositing material in stockpiles on land satisfied that definition. Separately, temporary stockpiling of material pending transfer to another place also amounted to "waste storage" (cl 42, Sch 1). Neither activity required any two-step inquiry imported by the trial judge.

Onus of proof, exemptions, asbestos, and remaining issues: The Court confirmed that under s 144(2) of the POEO Act, the defendant bears the onus of proving lawful authority, including the applicability of any regulatory exemptions. On the question of asbestos, the Court addressed the meaning of "asbestos waste" and the conditions under which that classification applied. The Court also addressed whether the offences were continuing in nature and whether the prosecution was time-barred, finding errors of law in the trial judge's treatment of those issues. The proceedings were remitted to the Land and Environment Court for determination in accordance with the answers given.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Under s 5AE of the Criminal Appeal Act 1912, the Crown's right to have questions of law stated to the Court of Criminal Appeal is not limited to a single request, and the form of questions may change substantially before final submission; the trial judge's obligation to submit arises from the request itself.
  • The paragraphs of the "waste" definition in the POEO Act Dictionary are not mutually exclusive; a substance, including recycled or recovered material, can simultaneously satisfy multiple paragraphs of the definition.
  • Depositing recycled materials in stockpiles on land constitutes "application to land" within the meaning of paragraph (d) of the POEO Act waste definition and cl 3B of the Waste Regulation, and also satisfies the scheduled activity of "waste disposal by application to land" in cl 39 of Schedule 1.
  • Temporary stockpiling of waste pending transfer elsewhere falls within the scheduled activity of "waste storage" under cl 42 of Schedule 1 to the POEO Act; the concept of "storage" is not confined to long-term or permanent arrangements.
  • Section 144(2) of the POEO Act places the onus squarely on the defendant to prove lawful authority, including the applicability of any regulatory exemptions claimed under notices of exemption granted under the Waste Regulation.

Legislation and Cases Referenced

Legislation:
- Protection of the Environment Operations Act 1997 (NSW), ss 5, 48, 88, 144, 169, 216, 258, 286, Sch 1 cll 1, 39, 40, 41, 42
- Protection of the Environment Operations (Waste) Regulation 2005, cll 3A, 3B, 51, 51A
- Criminal Appeal Act 1912 (NSW), s 5AE
- Environmental Planning and Assessment Act 1979 (NSW), s 4.2
- Waste Avoidance and Resource Recovery Act 2001 (NSW)
- Evidence Act 1995 (NSW)
- Crimes Act 1900 (NSW)

Key Cases:
- Environment Protection Authority v Land and Environment Court (NSW) (2004) 134 LGERA 140; [2004] NSWCA 50
- Environment Protection Authority v Terrace Earthmoving Pty Ltd (2013) 84 NSWLR 679; [2013] NSWCCA 180
- Director of Public Prosecutions v United Telecasters Sydney Ltd (1990) 168 CLR 594; [1990] HCA 5
- Ex parte McGavin; Re Berne (1946) 46 SR (NSW) 58
- CIC Insurance Limited v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2
- Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249; [1990] HCA 41