Environment Protection Authority v Terrace Earthmoving Pty Ltd & Page  NSWLEC 216
The NSW Environment Protection Authority (EPA, Prosecutor) is considering an appeal to the Court of Criminal Appeal after the NSW Land and Environment Court found the defendants “not guilty” of unlawfully transporting waste. Justice Craig determined that if the end user finds the material useful, it does not constitute ‘waste’ for the purpose of the Protection of the Environment Operations Act 1997 (POEO Act). This case clarifies the definition of ‘waste’ for the offence of unlawfully transporting waste. As a result, this case may have significant consequences for people whose activities include transport material which may be ‘waste’, or creating, dumping or re-using it.
The EPA charged Terrace Earthmoving Pty Ltd and Geoffrey James Page, the company’s director (Defendants) , with 4 offences for unlawful transport of waste under s143(1)(a) of the POEO Act. Terrace Earthmoving Pty Ltd had been engaged by Mr and Mrs Ciccanti to transport 680 tonnes of fill material for use in constructing a road on their 20 hectare rural property at Williamtown. The fill material included crushed rock, broken bricks, tiles, concrete and other inert material. As Mr Page was the sole director of the company at the time the activities were undertaken, he was charged with the identical offence under s 169 of the POEO Act. The fill material was obtained as a result of previous demolition or excavation works.
Due to amendments made to s143 of the POEO Act, which took effect from 1 May 2006, there were 2 charge periods in the proceedings. The first charge period related to the period from 23 November 2005 to 30 April 2006, and the second charge period related to the period from 1 May 2006 to 1 March 2007. The amendments to the POEO Act meant that the maximum penalties increased from $250,000 for a company and $125,000 for an individual, to $1 million for a company and $250,000 for an individual. Additionally, the definition of waste previously contained in s 143(4) was replaced in the amended POEO Act, with the definition of waste in the Dictionary to the amended Act.
Justice Craig’s decision dealt with the 3 elements of the offence, being whether:
- the defendant transported a substance to a place;
- the substance was waste (during each charge period); and
- the place it was delivered to could be lawfully used as a waste facility.
Transport of substance
The EPA submitted that transporting a substance within the meaning of s 143(1) of the POEO Act extended to depositing it at its destination. However, Justice Craig disagreed by distinguishing transporting material from the subsequent act of depositing it. This distinction was considered significant as the offence requires the material be a waste at the time it is transported. As a result, Justice Craig found that in determining whether waste was transported to a ‘place’, the relevant issue is whether the material met the definition of waste at the time of transportation – not its categorisation at the ultimate destination, once deposited.
Definition of waste - first charge period
Determination of whether the material met the definition of waste was separated into the 2 charge periods. During the first charge period, s 143(4) defined waste as including “any unwanted or surplus substance, whether or not it may be reprocessed, reused or recycled”. Justice Craig referred to 5 relevant factors in determining whether the material met this definition:
- 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.
After considering these factors, Justice Craig held that the material at the time of transportation was not waste. This was because the fact that the original party that discarded the material does not want it, does not alone cause it to be waste. Justice Craig emphasised that a commonsense and objective approach is relevant to the interpretation of waste. After considering all of the circumstances, Justice Craig found that despite being the product of demolition, the material was specifically wanted for the purpose of road construction, and therefore was not surplus. Relevant to this was the fact that the material had been separated from other material resulting from demolition, which had been treated as waste and transported to a waste facility.
Additionally, Justice Craig held that the facts could be distinguished from those in Environment Protection Authority v HTT Huntley Heritage Pty Ltd  NSWLEC 76 where rubble was found to constitute waste (building rubble was stockpiled for the eventual purpose of being used for site remediation). His Honour held that unlike Huntley, the materials transported by Terrace “has not been through a process of deposit at a waste facility. These materials have been identified by nature and separation from other materials as being needed for road construction with the intention that they should be so used immediately upon delivery to the road construction site. No stockpiling awaiting some future intention for re-use was involved”.
Definition of waste - second charge period
The amendments to the POEO Act in 2006 adopted the definition of waste in the Dictionary to the Act, which includes 5 alternatives (a)-(e). The prosecutor relied on the definitions (a) and (b), being “ (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…”. Justice Craig found that for the 2nd charge period, the EPA failed to prove the material constituted waste under either definitions (a) or (b).
The 1st alternative, (a) requires consideration of the consequences of the action taken in respect of the material - that is, whether it alters the environment when it is discharged, emitted or deposited. Justice Craig found that as the alleged offence related to transportation of the material, the 1st alternative definition (a) had no application to the charge.
His Honour held that the 2nd alternative definition (b) requires consideration of the properties of the material, being whether it was discarded, rejected, unwanted, surplus or abandoned. His Honour referred to his earlier findings on the 1st charge period, that the substance was wanted for a specific purpose at the time of transportation, and therefore was not discarded, rejected, unwanted, surplus or abandoned, despite the owner of the land on which it had been initially located, casting the material aside.
Lawful authority as waste facility
As Justice Craig determined that the material was not waste, it was not necessary for him to make a finding on whether the place to which the material was delivered could lawfully be used as a waste facility. His Honour therefore made no ultimate finding on this issue, but did note that there is a dual onus of proof when addressing whether the place is a lawful waste facility. The prosecutor has the onus of proving that a lawful authority is required to use the place for the substance. Following this, the defendant has the onus of proving that a required authority is held and operative at the time the waste was transported to that place.
Justice Craig’s judgment has significantly altered the previously accepted notion of what constitutes ‘waste’ for the purposes of the POEO Act. These findings will be particularly relevant to those involved in recycling, resource recovery and related industries.
However, noting that this case is likely to be the subject of appeal, it would be wise for parties to still maintain a conservative view as to what constitutes ‘waste’, until any appeal has been determined.