Blacktown City Council v Pace & Anor

LEGAL REPRESENTATIVES: DEFENDANTS Mr BJ Preston SC with Ms JM Jagot (barrister) SOLICITORS Mallesons Stephen Jaques

IN THE LAND AND Matter No: 50127 of 2001 ENVIRONMENT COURT Coram: Pain J OF NEW SOUTH WALES Decision Date: 20 August 2002

1. These are Class 5 proceedings commenced by the Prosecutor, Blacktown City Council (the Prosecutor), against Francis George Pace and Joseph Pace. The Summons filed by the Prosecutor claims in par 1: An order that the Defendants, Francis George Pace and Joseph Pace of 687 Richmond Road, Dean Park in the state of New South Wales appear before a Judge of the Court to answer the charge that between 24 July 2000 and 29 July 2000 they committed an offence against the Protection of the Environment Operations Act 1997 (NSW) ("the Act") in that, being the owners of land known as 687 Richmond Road, Dean Park being the land in Folio Identifier 61/777770 ("the land") which cannot lawfully be used as a waste facility, they permitted the land to be used as a waste facility contrary to s 144 of that Act.
2. It was agreed by the parties that the matter would proceed by affidavit evidence. No evidence was filed by the Defendants. The Prosecutor filed a number of affidavits as follows: (a) affidavit of Graham John Pares, Council Officer, sworn 22 October 2001; (b) affidavit of Pares, as above, sworn 21 March 2002; (c) affidavit of Suzanne Jane Boles, Council Officer, sworn 19 October 2001 (d) affidavit of Ian Christopher Swane, Environmental Engineer, sworn 31 October 2001; (e) affidavit of Peter John Sydney Kelso, Solicitor, sworn 21 March 2002.
3. The other principal evidence which the Prosecutor relied on were extracts of a report called "Report on Contamination Assessment" prepared by Douglas Partners in September 2000 for Pace Farms Pty Ltd (the Douglas Partners' report). The evidence discloses that there was a large amount of waste material such as eggshells, general rubbish and chicken manure located at the rear of 687 Richmond Road, Dean Park (the land) at the dates of the alleged offence. Those portions of the Douglas Partners' report admitted included observations of what the report's author saw at the land in or around September 2000. It also included hearsay information about the land, but was admitted under s 69 of the Evidence Act as a business record. The report identified Francis Pace, one of the Defendants, and Pamela Shaw of Pace Farms Pty Ltd as persons from whom information had been obtained.

4. Section 144 of the Protection of the Environment Operations Act 1997 (the PEO Act) states that: (1) A person who is the owner or occupier of any land that cannot lawfully be used as a waste facility and who permits the land to be used as a waste facility is guilty of an offence.

Maximum penalty: · in the case of a corporation $250,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or · in the case of an individual $120,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.

(2) In any proceedings for an offence under this section the defendant bears the onus of proving that the land concerned can lawfully be used as a waste facility.

5. "Waste" is broadly defined in the dictionary to the PEO Act as including:

(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, or (c) any otherwise discarded, rejected, unwanted, surplus or abandoned substance intended for sale or for recycling, reprocessing, recovery or purification by a separate operation from that which produced the substance, or (d) any substance prescribed by the regulations to be waste for the purposes of this Act.

A substance is not precluded from being waste for the purposes of this Act merely because it can be reprocessed, re-used or recycled. 6. Further, "waste facility" is defined in the dictionary to mean: any premises used for the storage, treatment, reprocessing, sorting or disposal of waste (except as provided by the regulations).

7. The offence in s 144 requires that the Prosecutor prove the following elements of the offence in relation to both Defendants: (a) a person is the owner of the land; (b) the land was used as a waste facility; (c) the land cannot lawfully be used as a waste facility (a defendant bears the onus of proving that the land can lawfully be used as a waste facility under s 144(2)); (d) the person has permitted use of the relevant land as a waste facility.

8. At the conclusion of the hearing I dismissed the summons filed by the Prosecutor in relation to Joseph Pace, as the evidence did not support a finding of guilt beyond reasonable doubt against him. Accordingly, the rest of this judgment deals only with the charge against Francis George Pace (and refers to him as the Defendant).

9. I will consider the evidence in relation to each of the elements of the offence under s 144 in turn.

(a) Was the Defendant the Owner? 10. The Prosecutor relied primarily on one piece of evidence in relation to ownership of the land to establish that in July 2000 the property belonged to the Defendant. This was the title search of the land at 687 Richmond Road, Dean Park which was Annexure B to the affidavit of Suzanne Boles. The date of the title search was 18 September 2001. The Prosecutor relied on the date of 30 June 1997, which appears on the title search, as the date from which ownership commenced. The Douglas Partners' report was also relied on by the Prosecutor as the author made observations that Pace Farms Pty Ltd had owned the land for a number of years. The Prosecutor also relied on a business names search dated 19 March 2002 which showed the Defendant was, since 1989, a director of Pace Farms Pty Ltd, which company had its principal place of business at the land.

11. The Defendant submitted that the title search discloses only that the owners of the land at the date of the search, being 18 September 2001, were Francis George Pace (two-thirds share) and Joseph Pace (one-third share) as tenants in common. The date of the search is in excess of 12 months after the alleged offence. The date 30 June 1997 in the title search to which the Prosecutor referred is not identified as to its meaning in any way on the face of the document. The Defendant points to the fact that the only other evidence of ownership is the belief held by the author of the Douglas Partners' report and Miss Boles that the land belonged to Pace Farms Pty Ltd. Accordingly there is no evidence capable of satisfying the Court beyond reasonable doubt that Francis George Pace was the owner of the property within the particularised period of the offence.

Finding on (a) 12. I find that a reasonable inference can be drawn from the title search for the land, that the Defendant was the owner from 30 June 1997 until at least the date of the title search, and hence was the owner of the land for the period of the offence charged. The other evidence relied on by the Prosecutor related to Pace Farms Pty Ltd rather than the Defendant in my view, and is of no assistance on this issue.

(b) Use of land as a waste facility? 13. The Prosecutor argued that the Court had the benefit of viewing the photos taken by the Prosecutor's investigating officer, Suzanne Boles. These show that at the time the photographs were taken on 25 July 2000 there were substantial mounds of rubbish including eggshells, general waste, such as plastic bags, and chicken manure. The photographs show that the material present was substantial and is very unlikely to have been deposited in a short period. In these circumstances it is quite open for the Court to draw the inference that there was a use of the site for the storage of waste.

The Defendant's counsel raised a number of arguments in his defence. Firstly, the presence of materials on land does not necessarily mean the use of the land as a waste facility. If the words "used for the purpose of" are to have meaning, "use" implies more than mere presence of waste on land under s 144. The characterisation of the use of land for the purpose of a waste facility must be a matter of the nature, character and extent of the presence of activities on land.

Secondly, a use cannot exist without a purpose, which requires more than an aggregation of activities. In support of this argument the Defendant relied on Bonus Pty Ltd v Leichhardt Municipal Council (1954) 19 LGR 375 at 378. See also LN Price Pty Ltd v Leichhardt Municipal Council (1959) 4 LGRA 63 and Else-Mitchell J in William McKenzie Pty Ltd v Leichhardt Municipal Council (1964) 10 LGRA 137. It was noted these cases dealt with the planning law context rather than the PEO Act. However they are helpful, the Defendant argued, because the offence and the definition of waste facility in the PEO Act include the concept of "use". The legislature must have intended that this means something more than the mere aggregation of activities. If this construction was not applied it would mean that virtually every activity of storing or processing waste could constitute a waste facility.

The Prosecutor argued that the offence should not be "read down" by the application of reasoning applied in planning cases concerning the Environmental Planning and Assessment Act 1979. Cases in the planning law area dealing with dominant use, ancillary use and primary use are not relevant to s 144. The terms of s 144 and the definition of waste are very broad and should not be read down by cases relating to legislation in a civil context.

Thirdly, the Defendant argued that the premises must be used for the proscribed purpose, the mere storing, treating, reprocessing, sorting or disposing of waste on land is not enough. The decision of Sweet v Parsley [1969] 1 All ER 347 was relied on. In that case, the issue was whether a teacher charged under the Dangerous Drugs Act 1965 (UK) could be guilty of an offence of being a person concerned in the management of premises used for the purpose of smoking cannabis where the cannabis was owned by the tenant not the teacher. The Court considered the concept of "use for a purpose" and said it would be a strange use of language to say that an ordinary room in the house is used for the purpose of smoking cannabis when someone lights a cannabis cigarette while there. The offence required that "the manager not only knew about cannabis smoking but conducted the premises for that purpose" (at 352).

Fourthly, the Defendant argued that there was not sufficient evidence to warrant the conclusion that there was a use of the land for the storage of waste. The portions of the Douglas Partners' report admitted into evidence did not support this. Even if it could be so concluded, the Douglas Partners' report was not logically probative evidence that there was such a use of land for the period of the charge in July 2000 as that report was prepared in September 2000, some three months later than the period of the charge. In relation to the Douglas Partners' report, the Defendant argued that: (i) The material admitted from p 6 was hearsay (it having been admitted under the exception to the hearsay rule as a business record available under s 69 of the Evidence Act). (ii) It was not in the correct form, containing no direct speech. (iii) It does not attribute any particular statement to a particular person. (iv) It is impossible to determine what was said by who or what were the inferences drawn from what was said by the author of the document. (v) The Douglas Partners' report does not indicate from whom the author obtained the knowledge about the presence of waste on the property. If the information came from Pauline Shaw, who was also named in the Douglas Partners' report, there is no evidence it was also the knowledge of Francis Pace. It should be regarded as unreliable evidence as identified in s 165 of the Evidence Act. (vi) The portion of the premises affected by the stockpile is small. That area of the premises is located to one corner at the rear. 19. Fifthly, the Defendant argued that the substances on the land are not "waste" because of the exclusion from waste facilities in Sch 1(3)(d1) of the PEO Act, of premises with organic waste and manure, and the Prosecutor has an onus to demonstrate that there is "waste" on the land.

Finding on (b) 20. The photographs admitted in evidence show clearly that a very large amount of waste was located on the rear of the land on 25 July 2000. The size of that waste mound suggests the waste had been accumulated over a lengthy period. The Douglas Partners' report does contain evidence of a general nature, although is unclear as to the precise source of that information, that there had been waste on the land for a number of years. In the circumstances I find that a portion at the rear of the land had been used for the storage of waste, which is within the definition of waste facility. I do not find the "planning" cases relied on by the Defendant definitive in this context on the meaning of "use" as a waste facility. The issue of use in the context of s 144 must be a question of nature and extent based on the circumstances of each case. The Prosecutor is not required to demonstrate the purpose of the use of the land was as a waste facility (Sweet v Parsley is not relevant), only that in the circumstances there was such a use. Furthermore, the purpose of Sch 1 of the POE Act is to specify those facilities requiring a licence from the EPA, but does not mean that all other premises with organic waste are not regulated, but rather means that these fall under the responsibility of other regulatory authorities such as local councils. Nor does it mean the material in Sch 1 (3)(d1) is not "waste" as is clear from the definition in the PEO Act dictionary. I therefore find that the considerable extent of waste on the land supports a conclusion that there was a use of the land as a waste facility, namely for the storage of waste, for the period charged.

(c) Use of land as a waste facility is lawful 21. Under s 144(2) the onus is on the Defendant to prove that the land can lawfully be used as a waste facility. No evidence was presented on this issue and accordingly I find this aspect proven.

(d) Did the Defendant permit the use of the land as a waste facility? 22. The Prosecutor argued the Defendant had permitted the use of the land as a waste facility. The meaning of "permit" is an important issue in this case. The Prosecutor submitted that the meaning of permission is broad and encompasses more than positive action, and can include acquiescence and declining to interfere to prevent something happening. The decision of The Corporation of the City of Adelaide v The Australasian Performing Right Association Ltd (1928) 40 CLR 481 and in particular the judgment of Isaacs J (dissenting) at 490 concerning the meaning of "permit" was relied on by the Prosecutor, noting that although it was a dissenting judgment the passage has been approved in later cases. Isaacs J stated "permits" "is of very extensive connotation. Having international effect, it should not be restricted to narrow limits." (at 490). The decision of Lyver v The State of Victoria [1983] 2 VR 475 was also referred to where Young CJ at 478 stated that "permit" can include "intentionally allow" and encompasses both actual and imputed knowledge of the relevant facts by a defendant. The Prosecutor argued "permit" can include knowingly or recklessly shutting one's eyes to the obvious.

The Prosecutor relied on the following evidence to prove that the Defendant permitted the use of the land unlawfully as a waste facility: (i) There is sworn evidence that when Suzanne Boles went to the land on 25 July the Defendant was at the premises. He was not there as the result of a request by the Prosecutor but, as he clearly identified to the Council's investigating officer, was the general manager of the company, Pace Farms Pty Ltd, which carried on business at the premises. (ii) A company search conducted of Pace Farms Pty Ltd, attached to the affidavit of Peter Kelso sworn on 21 March 2002, showed that the company had its office at this same location and that the Defendant had been a Director since December 1989. (iii) The Douglas Partners' report refers in part 4.1 to information obtained from the Defendant and shows that he was aware of activities on the land. (iv) The affidavit of Suzanne Boles, which sets out that on the day she was at the land and spoke to the Defendant there were stockpiles of rubbish and eggshells and the photographs exhibited to her affidavit which show large stockpiles of waste in various sections and large amounts of chicken manure (photos 2 to 19). Furthermore, the map attached to her affidavit shows the stockpile of rubbish and that it is large in area. (v) The presence of waste at the relevant time of the offence on the land was corroborated by the Douglas Partners' report. (vi) The Douglas Partners' report further stated, in the executive summary extracts admitted into evidence, that there was dead and distressed vegetation and contamination from previous egg waste. At p 3 of that report it was further noted that there was an area of 20 - 30 metres identified that did not appear natural in that it had been scorched. At p 3 it was also noted that the waste area was accessed by an unsealed road from Pace Farms. On p 6 of that report, which refers to the information provided by the Defendant, there was indication that the area was connected to Lot 61 and used for the storage of equipment and that the platform was periodically end tipped. Although the report was prepared in September 2000 and the offence was in July 2000 it could be inferred that knowledge was held by the Defendant at the relevant date in July 2000. (vii) There was evidence that the Defendant had actual knowledge of the storage of waste through personal knowledge of egg production on the land since the 1960's, and that the rear portion was used for the storage of waste, those statements being attributed to him or Pamela Shaw in the Douglas Partners' report. He was the general manager of the company with its principal place of business at the site at the time the offence was committed. The Douglas Partners' report suggested that there had been activity taking place on the site for many years with his actual knowledge. (viii) There is no lease of the property by Pace Farms Pty Ltd which would have suggested that Pace Farms Pty Ltd had a right of exclusive possession. In its absence the Court should infer the Defendant did not lose his exclusive possession of the property of which he was the registered proprietor.

The Prosecutor submitted the Douglas Partners' report proved beyond reasonable doubt that the Defendant had actual knowledge. There was also a series of facts leading to the inference of actual knowledge. The Prosecutor submitted in the alternative that on the basis of this evidence there was an inescapable inference that Francis Pace had permitted the use either knowingly or recklessly. The Prosecutor further submitted that it was not necessary to show that the Defendant had allowed dumping of waste as an ongoing process, it was enough that he ought to have known the waste was there and was shutting his eyes to the obvious use of the land. Thus, the Prosecutor also argued, there are a series of facts which lead to the overwhelming inference that the Defendant was recklessly shutting his eyes to the knowledge that waste was being stored.

Alternatively, the Prosecutor argued that the Defendant had imputed knowledge of the employees of Pace Farms Pty Ltd, namely Pamela Shaw who is mentioned in the Douglas Partners' report at p 6 in section 4.1. The Court should infer that such an employee had knowledge, implied knowledge or had been reckless on the basis of which the Defendant, with that imputed knowledge, could have prevented the use of the land as a waste facility.

In rebuttal, the defence put forward substantial submissions to the effect that the Defendant could not have had the requisite knowledge of the use of the site as a waste facility nor had he permitted the land to be so used. This Court has endorsed the proposition that before a person is found to permit or suffer an act to be done, it is necessary for them to have both knowledge of the act, including what ought to have been known, and the capacity to prevent it; Talbot J in Byron Shire Council v The Rising Damp Corporation Pty Ltd [2001] NSWLEC 260.

In Broad v Parish (1941) 64 CLR 588 at 595 Starke J said that the ordinary meaning of the word "permit" is "intentionally allow". This is consistent with the approach of Lord Parker CJ in Gray's Haulage Co. Limited v Arnold [1966] 1 WLR 534 where it was said at 536 - 7 that "It is of the very essence of the offence of permitting someone to do something that there should be knowledge". Further, Anderson J in Lyver (also referred to by the Prosecutor as discussed above) quoted approvingly Glanville Williams in Textbook of Criminal Law, 1978 where he stated at 83 - 4 that: The best view seems to be that offences of permitting can be committed either knowingly or recklessly, and in no other way. The basis of the interpretation of the word "permits" is that a man cannot be said to permit what he does not know 28. In its written submissions the Defendant referred to several additional cases, including Environmental Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 where Lloyd J summarised the approach of this Court to the word "permits" as "to intentionally allow" at [263].

The Defendant argued that he could only have permitted use of the relevant portion of the site if the Court can be satisfied beyond reasonable doubt on the evidence that he: (a) intentionally allowed that use to occur; or (b) actually knew that another person, such as Pace Farms Pty Ltd, was carrying out the use of that portion of the land and aided, abetted or procured that use.

In relation to (b) actual knowledge must be proved and such actual knowledge must be the only rational inference available from the circumstances; Giorgianni v The Queen (1985) 156 CLR 473 and R v Buckett (1995) 126 FLR 435.

The Defendant argued, in his written submissions, in relation to the evidence that: (i) it could not be inferred from the certificate of title that the Defendant was the owner of the land between 24 - 29 July 2000. (ii) the only evidence was that the Defendant, as at 19 March 2002, was a current director of the company Pace Farms Pty Ltd, the current principal place of the business being at the land. (iii) there is no evidence that the Defendant intentionally allowed the use of the property for the proscribed purpose within the period charged in his personal capacity as distinct from his capacity as a director of a corporation, in respect of which there is also no relevant evidence. (iv) there is no evidence in relation to the source of the material on the premises described as waste. (v) there is no evidence that the Defendant was in attendance at the premises either between 24 July 2000 and 29 July 2000 or any other time prior thereto (although this was a submission of the Defendant it is clearly contradicted by the evidence of Suzanne Boles who attended the land on 25 July 2000 and spoke to the Defendant) (vi) there is no evidence that the Defendant was ever in attendance at the rear portion of the premises, shown in Annexure A to the affidavit of Suzanne Boles. (vii) there is no evidence that the Defendant was in any way aware of any use being made of that portion of the premises or that the Defendant had been notified by any person of any use being made of that portion of the premises or that the Defendant was in occupation of any part of the premises at any time.

In relation to the points raised by the Prosecutor the Defendant argued: (i) The mere fact of ownership (even if proved) does not mean the owner knows everything that goes on on the land. (ii) In relation to the fact that the Defendant was present on the premises on the day of the offence (25 July 2001), the Defendant argues the presence of the Defendant in the office at one end of the premises cannot lead to the inference that he knew about the stockpile of rubbish at the other end of the property (especially due to the large size of the property and that there was no evidence that the stockpile was visible from the office). (iii) The fact the Defendant introduced himself as the General Manager of Pace Farms does not lead to the inference that he has knowledge of everything done by Pace Farms or knowledge of the storage of waste. (iv) The fact that the company search showed the Defendant was a director does not lead to the inference that he knows everything done by the corporation, including use of the land for a waste facility. Furthermore, the fact that the company's principal place of business in on the land, does not lead to the conclusion that the Defendant had knowledge of use of the land as a waste facility. (v) In relation to the said obviousness of the waste, because it was large in size, there is no evidence to infer that the Defendant was able to observe it, or had been close enough to observe it in the relevant period. (vi) In relation to the leachate from the waste the Defendant argues that the Prosecutor had not shown the Defendant was in a position to be able to observe it.

The Defendant argues that there is no evidence to show the Defendant had personal knowledge of the facts that constitute the use as a waste facility.

In relation to the submission that the Defendant had shut his eyes to the situation, the Defendant says there is no evidence to support this. The mere fact of ownership is not enough, a person has to know it is occurring in order to be able to prevent it: Australasian Performing Right Association at 487 per Knox CJ; Isaacs at 490; Gavin, Duffy and Starke JJ at 503 - 505. The Defendant argues there must be permission for the particular act.

The Defendant argued the evidence at its highest comprises the following elements that: (a) Francis George Pace is an owner and tenant in common of the premises, (b) Pace Farms Pty Ltd has its principal place of business located somewhere on the premises but not the portion in question, and (c) On 25 July 2000 an officer of the Prosecutor discovered that one portion of the premises of a large site immediately adjoining and surrounded by other premises had what is described as a "stockpile of rubbish" located upon it.

The Defendant submitted the evidence is unreliable, particularly the Douglas Partners' report which does not identify whether statements can be attributed to Francis Pace, Pauline Shaw or its author.

The Defendant argued that the Court could not be satisfied beyond reasonable doubt that any permission granted by the Defendant was a permission for the land to be used as a waste facility. A use which has been made of premises (or part of premises) in the past does not mean there is continued carrying out of the activity itself or an intention to continue that activity. The mere presence of material on land cannot, of itself, be evidence that an activity was carried out within any particular period, nor of any intention to carry out any activity, nor of the relevant permission. There is no evidence of the days upon which any piles of eggshells or other material was deposited upon the premises. There is only evidence that it appeared to have been stockpiling over the years. There is no evidence on which the Prosecutor can establish beyond reasonable doubt that within the period charged there was any activity of depositing any material on the relevant part of the premises or that there was any intention on the part of the Defendant to continue any such use of the premises.

Has an offence been committed? 38. In order to constitute an offence under s 144 each element of the offence must occur within the period charged (and within the relevant limitation period in relation to the charge). The offence was alleged to have been committed between 24 and 29 July 2000. In the Defendant's submission there is no evidence of the deposition of any material on that portion of the premises for that period. Further the Defendant argued there is no evidence of any action having been taken by him in that period. If one element of the offence is not established within the period 24 to 29 July 2000 then no offence has been committed. The Defendant argued there is no evidence of a relevant permit being granted by Francis Pace, nor of any use of the rear portion of the premises as a waste facility either between 24 and 29 July 2000.

Finding on (d) 39. The Prosecutor has failed to establish beyond reasonable doubt that the Defendant did permit the land to be used as a waste facility for the relevant period.

40. The evidence does not prove beyond reasonable doubt that the Defendant knew or "intentionally allowed" the use of the rear of the land as a waste facility (the Defendant's "test" at par 29). Even applying the Prosecutor's submissions including that "permits" can include that the Defendant recklessly shut his eyes to the obvious, there is insufficient evidence to prove this element of the offence beyond reasonable doubt. The evidence relied on by the Prosecutor, namely the Douglas Partners' report, is unsatisfactory for the purposes for which it was tendered, in my view. It consists of generalised statements about the land, is largely hearsay in relation to the Defendant and does not make clear who had what knowledge about the premises and at what time, to convince me beyond reasonable doubt that the Defendant did "permit" the use of the land as alleged. The other evidence relied on by the prosecutor is circumstantial and insubstantial, in my view. Accordingly this element of the offence has not been proved and the Prosecutor has failed to make out the charge.

ORDER The Court orders that:

1. The summons against Francis George Pace is dismissed.
2. The question of costs be reserved.
3. The exhibits be returned.

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