The Land and Environment Court has recently clarified the definition of ‘waste’ in the context of criminal proceedings for unlawfully transporting waste.

In Environment Protection Authority v Terrace Earthmoving Pty Ltd & Page [2012] NSW LEC 216, Craig J determined on the facts of the matter that the defendant was ‘not guilty’ of unlawfully transporting waste. Of significance is the finding that the relevant substance did not constitute ‘waste’ because the end user had a material use for the substance which had been transported.

BACKGROUND

Terrace Earthmoving Pty Ltd (Terrace) is a business which engages in earthmoving, land excavations, land clearing and building demolition. At all relevant times, Mr Geoffrey Page was the sole director of Terrace.

In November 2005, Terrace was engaged by the landowner of a rural/residential allotment at 168 Cabbage Tree Road, Williamtown (Property) to construct an internal access road.

The construction involved excavation along the proposed path and the placement of fill into the excavated area sufficient to achieve road level after compaction. The fill material used for the road construction was obtained by Terrace from sites where it was carrying out demolition or excavation works. Generally, the material comprised broken concrete, bricks, tiles, soil and rock.

As a consequence of Terrace’s transportation of these materials and their use for road construction on the Property, Terrace was charged with two offences for unlawfully transporting waste under section 143(1)(a) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act). Section 143(1) relevantly provides as follows:

143 Unlawful transporting or depositing of waste

  1. Offence

If a person transports waste to a place that cannot lawfully be used as a waste facility for that waste, or causes or permits waste to be so transported:

  1. the person, and
  2. if the person is not the owner of the waste, the owner,

are each guilty of an offence.

In addition, Mr Page, as director of Terrace, was also charged individually with the identical offences under section 169 of the POEO Act.

As a consequence of amendments to section 143 of the POEO Act, which took effect from 1 May 2006, two charge periods were identified in the proceedings – the first charge period being from 23 November 2005 to 30 April 2006 and the second being May 2006 to 1 March 2007. As such, the Environment Protection Authority (EPA) brought two charges against Terrace and Mr Page – being one for each charge period.

The amendments to section 143 of the POEO Act had the effect of:

  1. increasing the maximum penalty for the offence from $250,000 to $1 million, in the case of a corporation, and from $120,000 to $250,000, in the case of an individual; and
  2. deleting the definition of ‘waste’ contained in section 143 (which was different from and more limited than the definition of ‘waste’ in the Dictionary to the POEO Act).

ISSUES BEFORE THE COURT

The elements of the offence charged under section 143(1)(a) of the POEO Act required the Court to determine:

  1. Did Terrace transport a substance to a place?
  2. If so, did that substance constitute ‘waste’ as defined by the POEO Act during the relevant charge period?
  3. Did the Property constitute a ‘waste facility’?

DECISION

Did Terrace transport a substance to a place?

Based on evidence, the Court was satisfied beyond reasonable doubt that Terrace transported a substance (i.e. the fill material) from various sites in the Newcastle area to the Property.

Importantly, the Court rejected the EPA’s submission that the transporting of the substance within the meaning of section 143(1) extends to the deposition of that substance at the ‘place’, that deposition being the final act or element of transportation. Instead, Craig J held that, because the term ‘transport’ is not defined by the POEO Act, its ordinary meaning should be applied – ie to take or carry from one place to another. The Court drew a distinction between the transporting of material and its deposition at the ‘place’ to which the material is transported. This distinction is significant in the determination as to whether the material is characterised as ‘waste’ in the transportation process.

If so, did the substance constitute ‘waste’?

During the first charge period, section 143(4) of the POEO Act defined waste as including ‘any unwanted or surplus substance, whether or not it may be reprocessed, reused or recycled’. In determining where a substance falls within the scope of this definition, the Court provided a non-exhaustive list of relevant factors, including:

  1. the nature of the substance;
  2. whether there is an identified demand for that substance;
  3. circumstances in which the substance is obtained and removed from its source;
  4. whether the substance is being transported to a place at which it is intended to be used for the purpose for which demand for the substance has been shown; and
  5. the period of time that elapses or is expected to elapse after the substance is transported to the place of its intended use before it is put to that use.

Having regard to these factors, Craig J held that the fill material, at the time of transportation, did not constitute waste. Despite the fact that the material was discarded at various sites, the Court found that the material was wanted and used for the purpose of building an internal access road on the Property and, thus, was separated at the site of origin for this purpose.

The Court also noted that, although the definition indicates that a material may constitute waste ‘whether or not it may be reprocessed, reused or recycled’, this was merely a qualification to the core definition and did not change the determination that the material must be ‘unwanted’ or ‘surplus’ in order to qualify as waste in the first place. Unlike the situation in Environment Protection Authority v HTT Huntley Heritage Pty Ltd [2003] NSWLEC 76 where building rubble was held to be waste as it was stockpiled with a future intention for re-use, in this case the materials were identified, separated and transported from other sites for a specific purpose.

During the second charge period, the definition of ‘waste’ in the Dictionary applied. In particular, the prosecutor relied on paragraphs (a) and (b) of the definition which provides:

Waste includes:

  1. 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
  2. any discarded, rejected, unwanted, surplus or abandoned substance, or
  3. ...

The Court held that the fill material did not constitute waste in either circumstance. In respect of (a), the material would be waste if it altered the environment. This characterisation of waste requires the material to have been deposited at a particular site. Given the offence in question relates to the transportation of waste rather than its deposition, the Court found that this definition has no application to the offence. In respect of (b) above, the Court held that the material was wanted for a specific purpose and, therefore, was not discarded, rejected, unwanted, surplus or abandoned.

Did the Property constitute a ‘waste facility’?

On the basis that the fill material did not constitute waste, the Court did not need to make a finding in respect of this element of the offence.

IMPLICATIONS

This decision has clarified the meaning of ‘waste’ under the POEO Act in the context of unlawfully transporting waste. The case is authority for the proposition that where an end user acquires a substance or material for a specified purpose and it is used for that purpose, the transportation of that substance or material will not constitute unlawful transportation of waste under the POEO Act.

As the definition of ‘waste’ in the POEO Act is not specific to transportation, the Court’s interpretation of the definition of waste may also have implications for future prosecutions brought by the EPA for offences such as the disposal of waste (POEO Act, s115) and false and misleading information about waste (POEO Act, s144AA).