The recent decision of Craig J in Environment Protection Authority v Terrace Earthmoving Pty Ltd & Page  NSWLEC 216 provides an intriguing and somewhat restrictive interpretation of what is 'waste' in relation to the offence of unlawfully transporting waste
In this case the defendant company and its director were charged with offences for unlawful transport of waste under the Protection of the Environment Operations Act 1999 ('POEO Act') sections 143(1)(a) and 169 respectively. There were two relevant charge periods: the first, from 23 November 2005 to 30 April 2006; and the second, from 1 May 2006 to 1 March 2007 (after amendments were made to the POEO Act and to the definition of 'waste').
Questions of law
Craig J considered the 3 elements of the offence under s 143(1)(a) to be:
- The defendants transported a substance
- The substance was 'waste'; and
- The place to which the waste was transported could not lawfully be used as a "waste facility" for that waste. Lawful authority for use of that place was required.
Element 1 – The Transport
Craig J held that the act of depositing a substance at its destination is to be distinguished from the transporting of that substance. This finding is highly significant as the offence requires the material be a waste at the time it is transported, and therefore in relation to the second element the relevant issue is whether the material is considered waste at the time of transportation and not when it is deposited.
Element 2 – The Waste
In relation to the first charge period, s.143(4) (now repealed) defined waste as "any unwanted or surplus substance, whether or not it may be reprocessed, reused, or recycled". In determining whether the definition was met, Craig J held the relevant factors are:
- The nature of the substance;
- Whether there was an identified demand for it;
- The circumstances in which it was obtained and removed from its source;
- Whether it was transported to a place at which it was to be used for the purpose for which the demand exists; and
- The period of time between transport and its use.
Craig J found the material at the time of transportation was not waste. His Honour observed the fact that the party discarding the material does not want it, does not necessarily mean that there is no demand for it. The waste consisted of demolition material for which there was a demand for the purpose of road construction. Further, the material suitable for the purpose of use in road construction had not been stockpiled awaiting potential re-use, had not been through a process of deposit at a waste facility and had been separated from other material which had been treated as waste which was transported to a waste facility.
The definition of waste was changed subsequent to amendments to the POEO Act in 2006. The amended Act was applicable to a second charge period, and the prosecution relied on the following 2 of 5 alternatives in the new definition:
"(a) any substance (whether solid, liquid, or gaseous) that is discharged, emitted or deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment, or
(b) any discarded, rejected, unwanted surplus or abandoned substance"
In relation to (a) Craig J noted that the offence occurs when waste is transported, and therefore this definition has no application as it classes materials as waste based on whether it causes alteration to the environment.
In relation to (b) Craig J held this definition has "in substance" the same effect as the previous definition of waste applicable to the first charge period (above). Added descriptors ("discarded", "rejected" and "abandoned") do not cause the motive of the party discarding material to be the sole factor in determining whether the material is waste; "the entire factual matrix requires consideration in order to address the definition".
Element 3 - Lawful use as a waste facility
The material was not considered waste, and therefore a finding on the third element of the offence was not necessary. Nonetheless, Craig J noted the dual onus of proof on the prosecutor and defendant in relation to this element. His Honour stated "the defendant is in the best position to prove that a required authority is held." However, the prosecutor must prove in the first instance that a lawful authority is required.
Although the prosecution may appeal, the decision in Environment Protection Authority v Terrace Earthmoving Pty Ltd & Page limits what material constitutes 'waste' under the POEO Act, particularly in relation to the offence of unlawfully transporting waste under s.143(1). As it stands, this new, restrictive interpretation has significant implications for individuals and companies working in resource recovery, earthmoving, building demolition and related industries.