Director-General, Department of Environment and Climate Change v Jack and Bill Issa Pty Ltd

Land and Environment Court (NSW)|2015-02-27|Before: Sheahan J

Introduction

Having set out in detail the factual background and the extensive evidence tendered in these proceedings, the Court must now consider whether the prosecutor has satisfied me, to the criminal standard, that the defendants can be found guilty of the offences charged.
Foxman elected to appear without legal representation, but he was clearly aware of the seriousness of the charges he and his companies faced. Rather than seeking to rebut the prosecutor's factual case, and its submissions on the legal effect of it, most of the submissions Foxman made went to explanation or mitigation, and were, therefore, relevant more to sentencing issues, which lie beyond the scope of the hearing before me, and this judgment. Consequently, much of the material put, and many of the assertions made, by the prosecutor went uncontradicted, and Foxman made numerous damaging concessions and admissions.

Preliminary Question (1): Is the material waste?

To be "waste" for the purposes of the POEO Act, the prosecutor must establish that the material falls under one of the four inclusive definitions of "waste" in the Dictionary to the POEO Act (see [84] above).
The prosecutor submitted that the material fell under limbs (a), (b) and (d) of the definition of "waste" for the purposes of the dumping offences, and only under limb (b) for the transportation offences (see definition at [84] above).
For the reasons that follow, I am satisfied beyond reasonable doubt that the material satisfied all of those limbs, and is, therefore, "waste" as defined under the POEO Act.

• Limb (a)

Firstly, it is clearly established that the material was deposited "in the environment in such volume, constituency or manner as to cause an alteration in the environment" (see [84] above).
The affidavit evidence of the EPA and Council officers involved in this prosecution, and the photos exhibited to those affidavits, illustrate the substantial alteration caused by the disposition of 15,900 tonnes of material on the land, in two separate stockpiles (see, for example, the Exhibit P6, tabs 1 and 27).
The significant alteration caused was confirmed by the site view undertaken by the Court on the 2 March 2015, at which Foxman showed those present where the material had been deposited, and then "manoeuvred" to construct roads.

• Limb (b)

The material was also a "discarded, rejected, unwanted, surplus or abandoned substance" (see [84] above), even though Foxman found a use for it.
This conclusion is supported by a number of admissions, made by Foxman and by others on the defendants' behalf, prior to and during the hearing. Those admissions make clear that, because of space limitations at the BBR facility, stemming from stockpile height limits in the EPL, the material produced by BBR, and taken out to Foxman's Valley, was "surplus" and "unwanted".
For instance, Foxman in an email of 31 January 2011 to Henry Moore of the Department of Environment, Climate Change and Water ("DECCW"), said (Exhibit P 17, p95): I am limited for room in my yard and cant produce a material with no end use that i cant move (sic).
A similar admission was made in cross-examination, in respect of the inability to store the material at the BBR facility (Tp1115, L44 - p1116, L4) (prosecutor's subs, par 178(iv)).
In an effort to resolve this operational problem, Foxman/BBR engaged the services of some consultants to apply for a specific exemption that would entitle BBR to deposit and use the material at Foxman's Valley, largely on the basis that the material was "fit for purpose" for the construction of private roads at Foxman's Valley. In fact, the purpose behind the purchase of Foxman's Valley was to obtain a specific exemption (Tp1115, LL38 - 42), which required the nomination of the specific land to which the material would be applied. All of the exemption applications were rejected by the DECCW.
In their evidence before me, Foxman and Lau agreed that, if the material did not have the benefit of any of the exemptions discussed above, it was "waste", and should have been disposed of at licensed landfill (Tp776, LL13 - 32 and Tp1049, LL32 - 44). As will be discussed below (at [210] - [258]), none of those exemptions applied.
Foxman further conceded that the material transported could not be stored at the Banksmeadow facility because of licence restrictions, and was, therefore, surplus to the needs of BBR, up until the point in a time when an exemption was granted for the product (Tp1115, L44 - p1116, L17).
I am, therefore, satisfied that the material transported to, and deposited at, Foxman's Valley was surplus to the needs of, and unwanted by, BBR/Foxman, and "discarded" by BBR.
The amount of material applied to the land was well above that required by the 2009 consent (see [56] above). Both Martens, and the defendants' geotechnical expert, Bruce Walker, agreed that there was no need to import large amounts of material to construct the fire trails the subject of the consent, (Exhibit P19, p21 and Tp880, L6).
The excess application of material to the land is consistent with Foxman's original plans for the land, which involved its use as a landfill "linked to waste disposal" (Treglown, p43), leading to the eventual construction of a golf-course on the site, and his instructions to his employee to find a poor quality site when looking for property to purchase, eventually settling on Foxman's Valley.
Further, FEDS was not charged by BBR for the material (Exhibit P12, tab 39 and Exhibit P14, tab 5) - the subject material was effectively given away for free.
Foxman sought to rebut the assertion that the material was "surplus to the needs of", "unwanted" and "discarded".
The central theme to his argument was that "waste is something with no further use". As he had a further use for the material, i.e. the construction of roads, the material was not "waste". He argued that the material was "fit for purpose", that purpose being the construction of roads on his land. He also envisaged a broader market for the material in the construction of private roads, for which the material did not need to be of the quality or specifications required by the public road authority, RMS. He also expressed a desire to use Foxman's Valley in the future as an area of land where he could "process" and "develop" his road base product (Tp74, LL3 - 21).
He continually asserted that the amount of material that was applied to the land was necessary to construct the roads, and that, in fact, much more material would have been required if he had constructed the roads in accordance with the plans originally approved by the Council, which would have traversed a large gully, so requiring significant filling. He said that, if he had wanted a landfill, he would have stuck to the original DA, but he thought it more appropriate to follow the natural contours of the land (Tp82, LL3 - 12).
I reject Foxman's submissions in this regard.
The fact that the material received at the land may have been further processed, recycled, re-used or recovered, does not change its character as "waste", nor is an intention to so use the material sufficient: Environment Protection Authority v HTT Huntley Heritage Pty Ltd [2003] NSWLEC 76; 125 LGERA 332, at [12]; and see the statutory definition of "waste" ([84] above). Thus, the fact that the material received at the site was re-utilised, to make roads, is irrelevant - the material remains "waste".
I also reject his assertion that the amount of material applied was necessary to construct the roads at Foxman's Valley. Whilst it might be true that the roads actually constructed required less material than would the roads approved originally by the Council, the evidence of both Martens and Walker must be preferred to Foxman's. Both those experts have extensive engineering and geotechnical experience, and opined that the roads could have been constructed with no imported fill (Martens), or with as little as 2400 tonnes (Walker), considerably less than the amount imported by Foxman.
Accordingly, I find that the material was discarded, rejected and unwanted by, and surplus to, the needs of BBR: Environment Protection Authority v Terrace Earthmoving Pty Ltd [2013] NSWCCA 180; 84 NSWLR 679, at [25] - [26].

• Limb (d)

Finally, the material also satisfies limb (d) of the definition of "waste" - it was a "processed, recycled, re-used or recovered substance produced wholly or partly from waste that (was) applied to land" in a manner prescribed by the Waste Regulations (prosecutor's subs, par 185).
Foxman, Martens and Lau all agreed (Tp971. LL24 - 50, and Tp740, L38 - p741, L26) that the material was "applied to the land", by depositing, filling and contouring it, all circumstances prescribed by the regulations (see [96] above). The material is, therefore, "waste".

Conclusion on "Waste"

I am, therefore, satisfied beyond reasonable doubt that all the material transported and deposited at the land by BBR in the relevant periods was "waste", as defined in the POEO Act.
Even if I be incorrect in that finding, at a minimum, the defendants' own expert (Lau) conceded (and by virtue of s 87(1) of the Evidence Act 1995, so did Foxman) that the following was disposed, and/or stored at, the land (Exhibit D11, p19 and Tp 761, L 34 - p 762 L 5): 1. 600 tonnes of General Solid Waste; and 2. 380 - 850 tonnes of asbestos waste.
The precise amount of "waste" transported is no more than a particular of the offence. All that must be proved is that some "waste" was transported to/disposed of at Foxman's Valley (prosecutor's subs, par 162).

Preliminary Question (2): Do any General or Specific Exemptions Apply?

The applicability of any exemption under the Act was a central issue in the proceedings.
If the material were covered by an exemption, BBR and FEDS would not require any licence for the application of the material to the land, and it would not be unlawful to so apply it. The unlawfulness of the application of the material to the land is a key element in all the offences (see 261 and 285 below). Thus, if an exemption does apply, the defendants cannot be found guilty of any of the offences.
The defendants must establish on the balance of probabilities that they have the benefit of a general and/or specific exemption (see [106] above).
In my opinion, the defendants have not satisfied this onus.
It is common ground that no specific exemption was granted for the use of the material, despite BBR's numerous attempts to obtain one.
Accordingly, the question to be determined is whether the material is covered by any general exemption (see [99] - [143] above).
A preliminary area of dispute was whether the material should be tested against the "recovered fines" exemptions, or the RAEs" (see again [99] - [143] above).
The importance of that distinction arises because the material, whilst meeting the chemical contaminant specifications in the "recovered fines" exemptions, failed to meet those in the RAEs.
The prosecutor submitted that the material should be tested against RAE 2008 and 2010, because the material's particle size was too large to be classed as "recovered fines". On the other hand, Foxman asserted that the material could be classed as "recovered fines", and was thus capable of meeting the requirements in the fines exemptions.
I agree with the prosecutor.
The material's particle size is too large to meet the definition of "recovered fines" under the fines exemptions. Recovered fines must have a "typical particle size of less than 9.5 mm" (see definition of recovered fines above at [110]).
Lau's testing of soil samples taken from each of his 40 borehole locations revealed that the particle sizes exceeded the prescribed 9.5 mm (Exhibit D11, Appendix 'A', p5 of 5), based on the percentage of material retained when put through both a 9.5 mm and 26.5 mm sieve. Both Martens and Prifti gave evidence supporting this conclusion (Exhibit P19, p15 and Tp554, L17 - p555, L25, and Tp558, L26 - p592, L10).
Foxman himself ultimately conceded that the material exceeded the particle size prescribed in the "recovered fines" exemptions (Tp1117, LL1 - 9).
The only other relevant and available exemptions by which the material could be assessed are the RAEs of 2008 and 2010, and I am satisfied that the material does not satisfy the requirements of either of them.
Firstly, the use of exempted waste material remains subject to other environmental regulations in the POEO Act and Waste regulations. Regardless of whether an exemption applies or not, the material "remains" "special waste" as defined under the Act, because of the presence of asbestos (see [86] above). It was common ground that "special waste" cannot be exempted for use under the RAEs.
Investigating officers, and the respective experts found more than 53 pieces of asbestos in the material, both on the surface and at depth (Exhibit P19, p16).
The experts agreed that, when the material is viewed as a "whole", all 15,900 tonnes of it is "special waste". The following exchange between the prosecutor and Lau satisfies me that the material should all be classed as "special waste - asbestos waste" (Tp756, LL3 - 20): ENGLISH: Well, you've classified the entire fill material as general solid waste. Correct? WITNESS LAU: When you contemplate the material as a single entity, yes. ENGLISH: You don't deny, in fact, I believe you state in your report focusing on the second report which is exhibit P21, you agreed that asbestos is found at depth within the fill. WITNESS LAU: In - in some of the other testing, yes. ENGLISH: If the entire fill material can be classed as general solid waste and if there's asbestos found within the fill especially at depth then it surely must be by reference to the definition of asbestos waste being any waste that contains asbestos. It must all be special waste, asbestos waste. Do you agree with that? WITNESS LAU: In the way you've put it, yes, I agree. Yes.
The conclusion that the entirety of the fill material is "special waste - asbestos waste" is further supported by the evidence of EPA officer Bourne. He observed some "vinyl" like material consistently throughout a large portion of the material on one of his inspections, and, when he had one sample tested, it was found to be asbestos (see [174] above).
Additionally, Prifti and Martens observed that the entirety of the material was "consistent" - having found asbestos present in part of the material, it can safely be assumed that there would be asbestos present throughout the entire material.
Lau agreed that there would be more asbestos present in the material than was actually found. He gave the following evidence in answer to the prosecutor (at Tp759, LL10 - 37): WITNESS LAU: Look, I accept there's more - there appears to more asbestos found. I've not disputed that there is likely to be the odd fragment of asbestos in the fill material. That's consistent with what I've said. ENGLISH: But it's not the odd fragment, is it? It has been - at least Mr Bourne says that piece of vinyl tile he saw or consistently throughout a long area, 345 metres in length, in and around, in this case stockpile 2. Do you accept that? WITNESS LAU: Yes. ENGLISH: That would mean that area is contaminated with asbestos, would it not? WITNESS LAU: Contaminated with asbestos? No, that does not mean it is contaminated with asbestos. That means that asbestos is present but contaminated has a different meaning. ENGLISH: It's consistently present within that location, correct. WITNESS LAU: It appears to be, yes. ENGLISH: And if that location, according to your evidence, is classified as general solid waste, the existence of that asbestos would mean that that particular area is classed as special waste and should be classed as special waste asbestos waste. WITNESS LAU: Yes.
Foxman alleged before me that his land had been maliciously "salted" with asbestos pieces (see [70] above). His assertions were based on the fact that some asbestos pieces were found on top of virgin natural material, as opposed to recycled building waste, and his view was that the only way that asbestos could have reached that location was if someone deliberately placed it there. Secondly, some of the asbestos pieces found were too large to have been processed at the BBR facility, as all material is placed through a "crusher", which would have broken up any asbestos materials into smaller pieces.
Although Foxman's self-serving assertions of foul play cannot be categorically excluded, in the absence of any positive evidence, such allegations do not detract from the unequivocal evidence that the material transported to the site contained asbestos pieces, and so all of that material on the land is "special waste - asbestos waste".
I, therefore, find on this basis alone, that RAEs 2008 and 2010 do not apply to the material.
Even if I am wrong on this, I am satisfied that the material would not be covered by an exemption, as it failed in material respects to meet a number of conditions of exemptions argued to apply.
I have discussed the various exemptions and their relevant conditions in detail above (at [99] - [143]), and will not repeat that discussion here.
Lau and Martens tested the material against the prescribed contaminant limits in the RAEs, and both found exceedences of both the lead, and foreign materials limits.
Lau took samples from various locations which he said were representative of the entire body of material (Tp749, LL37 - 39), in order to characterise the material.
He sampled in accordance with the frequency stipulated in the RAEs, which required 10 samples per 4000 tonnes of material (Exhibit D11, p5). The results revealed that two of the sample sites had lead levels that exceeded the absolute maximum concentration allowable for lead (150 mg - 2010 RAE and 100 mg/kg - 2008 RAE), namely, JSB 03 - 160 mg/kg and JSB 28 - 200 mg/kg. He also found that two sample sites exceeded the absolute maximum for foreign materials (0.2% - 2008 RAE and 0.3% - 2010 RAE), namely, JSB 18 - 0.41% and JSB 27 - 0.36%.
Those results (Exhibit D11, table 2) also revealed that the average concentration of lead across all the sample sites was 82mg/kg, exceeding the maximum average concentration prescribed in the RAEs (50mg, in the 2008 RAE, and 75 mg, in the 2010 RAE).
Lau opined that only those portions of material that exceeded the absolute maximum concentrations did not meet the RAE requirements, and that the remainder of the material (95%) did meet the exemptions. He recommended that those portions should be removed from the site and deposited at licenced landfill (Exhibit D11, p 19). That report was drafted in the context of the Class 4 proceedings, in which removal of the material, and remediation of the land, were in issue.
In the context of these Class 5 proceedings, Lau conceded that the only way to view the material was as one "whole", and not "cherry pick" which parts of the material complied or did not comply with the RAEs. He gave the following evidence to the prosecutor (Tp846, LL17 - 34): ENGLISH: You were asked some questions yesterday by Mr Foxman about the view in your report in-chief that you said 95% of the material passed the recovered aggregate exemption. WITNESS LAU: Yes. ENGLISH: You've since moved on from that view, have you not, and you now accept that all the material at Forman's (sic) Valley fails to meet the recovered aggregate exemption? WITNESS LAU: If you assess the materials as a whole..(not transcribable)..yes. ENGLISH: For the purposes of this proceeding, because we're not looking at discretionary order such as whether and how parts of it can be removed, you'd accept that's the only way it can be viewed. WITNESS LAU: Yes.
Martens compared the test results of 55 composite samples (40 taken by Lau and 15 of his own) to the RAEs (Exhibit P19, p15), and determined that none of the material met the RAE specifications, because they exceeded the average maximum concentration for lead. His own samples revealed an average lead concentration of 99.2 mg/kg.
Unlike Lau, Martens opined that none of the material met the RAEs. The following concurrent evidence reveals their divergent interpretation of the results (Tp755, LL1 - 34): WITNESS LAU: Well, you put to me the question, if you look at the material as - as whole then absolutely. The numbers means that the whole of the material doesn't meet the exemption. But, you know, if you look a bit deeper and understand how this material is created it's not that it comes from a single site. The source of those materials - I don't know the answer to this but it would be many multiples of different sites and origins. The characteristics of the material from the first site that arrived at the recycling yard versus the second site verse the hundred and second site. It's not necessarily that they're all uniform. So, the notion that one or two bad loads makes all the material fail just - it doesn't line up with how the material was processed - like, how the material came into existence. ENGLISH: Do you have a view on that opinion that Mr Lau just expressed, Dr Martins? WITNESS MARTINS: Which part of the answer? ENGLISH: That the fill material, and correct me if I'm wrong, might just suffer from the fact that there could've been one or two or a number of bad loads that create what may be more contaminated areas than others within the fill profile. WITNESS MARTINS: No, not at all. I disagree with that proposition. The fill certainly appeared, on all the inspections that I'd undertaken as well as observations I'd made and data that was collected, that it was really a..(not transcribable)..there were variations between individual sampling sites but there was nothing that stood out that made me think that there was a particular area there at the site which was bad load, so to speak. The photographs - for example, when you look at the photographs of the fill it appears very uniform in character in terms of its colour. You know, its grain - grain-size, chemical composition. It does vary but it is altogether the same, sort of plus or minus from the mean. So, I mean, I do agree that there's probably hundreds of spots as Mr Lau has just said. That really supports the premise that - that it is a whole fill that we should be looking at rather than anything else.
In light of the concession later made by Lau (see [240] above), I am satisfied that Martens' opinion is to be preferred. The imported material, "as a whole", did not meet RAEs 2008 or 2010. Although not all of the material exceeded the prescribed contaminant limits, parts of it cannot be "cherry picked" for the purposes of compliance with those limits.
In addition to the findings of Lau and Martens, ALS testing commissioned by BBR for its own internal operations revealed that the material did not meet the contaminant requirements under either the 2008 or 2010 RAE. The results of those tests (conducted by ALS laboratories), revealed exceedences of contaminant levels in the cases of zinc, copper, wood and other vegetable matter (Exhibit P15 - summary of ALS test results).
Is it also material to note that the ALS results also revealed that the maximum average thresholds for lead were exceeded for both RAE 2008 and 2010 (89.27 mg/kg, when the 2008 exemption applied, and 136 mg/kg, when the 2010 exemption applied).
Foxman submitted that these test results did not prove that the material transported to and deposited at the land did not meet the exemptions. He said that the ALS testing was used to see if the material needed to be "reworked" to make it compliant with the contaminant levels in the exemptions, and, therefore, those results do not necessarily reflect the material taken out to Foxman's Valley (see defendants' written subs pars 45 and 55).
He further said that the material tested by ALS was "never used" - and that, accordingly, the only testing the Court could rely upon was the samples taken by investigating officers and the respective experts (Tpp1210 - 1211).
However, Foxman himself gave oral evidence that at least some of the material tested, in particular that tested in ALS Work Order ES0916154 (22 October 2009), was transported to, and deposited at, the subject land (Tpp1028 - 1029). That work order revealed that that material, comprising 15 samples, exceeded the maximum average concentration for lead under the RAE 2008, (58.9 mg/kg, c.f. the limit of 50mg/kg - see Exhibit P15). It also exceeded the maximum absolute concentration for wood and other vegetable matter (Exhibit P9, tab 57).
I am, therefore, satisfied that the material did not meet the contaminant thresholds prescribed in the RAEs, and that BBR and FEDS are/were not exempt from regulatory requirements in respect of the use of the material.
Even if the material were compliant with the contaminant thresholds, BBR and FEDS failed to comply with a number of other conditions of the RAEs, including: 1. Failure to supply written statement of compliance (cll 8.7 and 8.8 (see [116] above); and 2. The material was not used "to the minimum extent necessary", and in accordance with a valid development consent (cll 7.2.7(a) and (b) - see [115] above).
Foxman attempted to answer these failures by asserting that: 1. It was illogical for him to supply a "written statement of compliance" effectively to himself as director of both BBR ("the supplier"), and of FEDS ("the consumer") (Tp988, L39); and 2. The material was used on the land to the "minimum extent necessary" - (see my finding at [203] above).
The prosecutor also alleged that procedures were not implemented to minimise the potential to receive or process waste containing asbestos, as required by condition 8.1 of the RAEs. In response, Foxman claimed that he exercised all due diligence in minimising the risk of asbestos contamination.
In that regard, he detailed the operational procedures in place at the Banksmeadow facility, aimed at detecting asbestos and other contaminants. This included an initial "visual inspection" of the truck load from the weigh bridge, a second closer inspection, refusing to accept "suspect loads", and a further closer inspection once the material had been dumped and spread at the facility. He specifically rejected the prosecutor's assertion that his staff were not adequately trained in the detection and management of asbestos - his policy was "if in doubt throw it out" (Tp950, L1).
A constant theme throughout the proceedings was Foxman's expressed frustration that, despite doing "all he possibly could" to minimise the risk of asbestos and other contaminants being received and processed at the site, the end product did not meet the contaminant requirements in the exemptions, particularly those relating to lead. He argued that the current lead limits were too low, and that the minimum criteria should actually be 300 mg/kg.
In his written submissions (par 3), Foxman said that he: honestly believed that the exemptions were so restrictive that they ran counter to the express policy that recycling of construction waste should be encouraged within appropriate environmental safeguards … He honestly believed that asbestos was minimised in the material (in accordance with the EPA requirements) at the time of transport and also when used on the land.
Although Foxman may have legitimate grievances as a businessman operating in a heavily regulated industry, his objections go to issues of policy, and have no bearing on a criminal trial. His concerns do not detract from the clearly established fact that the material exceeds the strict contaminant thresholds prescribed by the RAEs of 2008 and 2010, nor do they negate his best efforts to minimise the presence of those contaminants.

Finding on "exemptions"

For all those reasons, I am not satisfied, on the balance of probabilities, that the defendants had the benefit of any exemption entitling them to (lawfully) deposit the offending material at the subject land.
Having answered those two preliminary questions which concerned all the offences charged, I now turn to consider the specific elements of each offence, which can be dealt with fairly concisely, in light of my findings above.

The Dumping Offences

FEDS is charged with unlawfully using Foxman's Valley as a waste facility, a breach of s 144(1) of the Act.
Foxman conceded that he had complete control of the actions of FEDS giving rise to the charge, and that, if FEDS were to be found guilty of a breach of s 144(1), he would also be guilty, by virtue of s 169(1).
The elements of which I must be satisfied beyond reasonable doubt to find FEDS guilty of the dumping offence are: 1. The defendant is the owner or occupier of the land; 2. The defendant used the land as a waste facility; and 3. The land cannot be used as a waste facility.
I turn to each of these elements in turn.

FEDS is the owner of the land

There is no dispute about this element.
FEDS became the owner of the land on 24 April 2009, and its registered proprietor on 21 May 2009. At the time of the hearing, FEDS was still the registered proprietor of the site.

The defendants used the land as a waste facility

The prosecutor is not required to demonstrate that the use of the Land was for the purpose of a waste facility, merely that, in the circumstances, there was such as use: Environment Protection Authority v Hardt [2006] NSWLEC 438; 148 LGERA 61, at [107].
I am satisfied beyond reasonable doubt that the land was so used by FEDS, for the following reasons.
It is common ground that the material, which is found above to be "waste" under the POEO Act, was deposited in stockpiles, and then manoeuvred on the land to make roads.
This conduct constituted "waste disposal by application to land", pursuant to cl 39 of Sch 1 of the POEO Act (see [85] above), as the material was applied to the land through a combination of (a) depositing, (b) filling, and (c) contouring. Foxman (Tp971, LL24 - 50), Martens and Lau (Tp740, LL38 - 46), all gave evidence confirming that those activities took place on the land.
Those activities constitute the use of the land as a "waste facility", as the "premises [were] used for the …disposal of waste…" (see above at [84]).
The premises were also used as a "waste facility", in that the land was used "for the storage … of waste" (see again [84] above). Clause 42 of Sch 1 of the POEO Act identifies "waste storage" as a scheduled activity, being the receiving from off-site and storing (including storage for transfer) of more than 2,500 tonnes of waste at any time (see [85] above). The evidence of investigating officers and experts clearly proves that this activity took place in this case (see [146]ff above).
The defendants admitted, through Lau, that, at a minimum, (a) 600 tonnes of General Solid Waste was disposed of at the land (Exhibit D11, p19); and (b) between 350 - 850 tonnes of asbestos waste was disposed of at the land (Tp 761, L 34 -p 762, L 5).
I conclude from this evidence and admissions that the land was used by FEDS as a "waste facility", as defined in the POEO Act.

The Land cannot lawfully be used as a waste facility

As both the disposal of waste by application to land (cl 39, Sch 1), and the storage of waste (cl 42, Sch 1), are scheduled activities, it was necessary that an EPL authorise those activities (s 48 POEO).
There was no such EPL (Exhibit P3, tab 3), nor was FEDS exempted from the requirement for one, by virtue of a general or specific exemption (see [210] - [258] above).
Accordingly, I am satisfied beyond reasonable doubt that the land could not lawfully be used as a "waste facility".

Findings on Charge 1

Having found all the elements proved beyond reasonable doubt, I am satisfied that FEDS is guilty of a breach of s 144(1) of the POEO, in that it used the land as a waste facility without lawful authority.

Foxman's liability, as a director, for the dumping offence (Charge 2)

In certain prescribed circumstances, officers of a company that contravenes the POEO Act will also be guilty of the same breach (see s 169(1), at [22] above).
Biscoe J in Director-General, Department of Environment and Climate Change v Jack and Bill Issa Pty Ltd (No 5) [2009] NSWLEC 232; 172 LGERA 225 at [79], [82] - [83], discussed the legal principles surrounding the liability of corporate defendants for the conduct of its directors/employees, these principles are relevant in the attribution of liability to individuals for the conduct of corporations (emphasis mine and citations omitted): 79 A company can only act through living persons. In determining whether criminal liability should be attributed to a company for the conduct of a person, a distinction has been drawn between, on the one hand, a person who is the embodiment of the company because, often, he is its relevant "directing mind and will" and, on the other hand, an agent or servant for whom the company is vicariously liable. The former represents an organic theory of liability, the latter an agency theory of liability. The distinction is particularly significant for offences in which mens rea is an element where prima facie (absent a contrary legislative intention) a principal is not vicariously responsible for the acts of agents …That inhibition is absent in strict liability offences because mens rea is not an element: … 82 Although the formula "directing mind and will" is often the most appropriate description of the person designated by the relevant rule attributing personal conduct to a company, that is not so in all cases. The real question is, on the proper construction of the statute, whose act is intended to count as the act of the company? … 83 The act of a high-level employee or director may count as the act of the company because they represent the company's directing mind and will. But even the act of a low-level employee may count if that is required by the terms of the offence and the achievement of the policy objectives of the statute…Conduct of low-level employees, who did not represent the company's directing mind and will, has repeatedly been held to be sufficient in cases concerning regulatory offences where legislation regulated a sphere of social or economic activity in the public interest (see the cases reviewed in the ABC Developmental Learning Centres case at first instance at [10] - [14]). They are analogous with the present case.
There is absolutely no doubt that Foxman was the "directing mind and will" of FEDS, and that the actions of FEDS are directly attributable to him, and vice versa. Foxman conceded that he had complete control over the actions of FEDS (see [15] above).
It was Foxman's intention that the waste be stockpiled (on the land) for future use on the roads at Foxman's Valley, and that was a reason for completing the purchase in FEDS's name (see Exhibit P8, and Tp1115, L38 - p1116, L37).
The evidence of Roy Howell is that Foxman directed him as to where "to place and/or spread the material at Foxman Valley" (Exhibit P13, tab JI-7, Q 84). Pursuant to those instructions, Roy Howell directed truck drivers who delivered material to the site from the Banksmeadow facility (Exhibit P6, tab 29, Q96 - 116).
For those reasons I am satisfied that Foxman is also guilty of the/a breach of s 144(1) of the POEO Act.

The Transportation Offences

BBR is charged with two offences under s 143(1) of the POEO Act for the unlawful transportation of waste, across two charge periods, 1 May - 30 September 2009, and 12 January - 22 April 2010.
Again in this instance Foxman conceded that he had complete control of the actions of BBR giving rise to the charges, and that if BBR were to be found guilty of breaches of s 143(1), he is also guilty, by virtue of s 169(1).
To find BBR guilty, I must be satisfied of the following elements beyond reasonable doubt: 1. The material was transported to a place; 2. The material transported is "waste" as defined by the POEO Act; 3. The place to which the material is transported is being used as a "waste facility"; 4. The place to which the material is transported cannot be lawfully used as a waste facility; and 5. The defendant caused the material to be so transported.
For the reasons that follow, I am satisfied beyond reasonable doubt of each and all of those elements.

The material was transported to a place

This element has been proven beyond reasonable doubt in respect to both charge periods.
Firstly, Foxman made admissions to McEwan, whose evidence I accept, on 3 May 2010, that all the imported material on the land had "been imported from Botany Building Recyclers", except for 10 loads of clay which had been deposited on the land by Wollondilly Council (Exhibit P8, par 55).
Secondly, weighbridge records from BBR's Banksmeadow facility show that 5,800.02 tonnes of "Oaks Road Base" had been delivered to a customer identified as "OAKS", between 1 May 2009 and 30 September 2009 (Exhibit P14, tab 5).
Thirdly, Foxman made admissions in his oral evidence that BBR was invoiced by Foxy's Transport for the costs associated with transporting the fill material to the land in 2009 (Tp963, LL19 - 25).
As to the second charge period, BBR's sales register records loads of "Outgoing Road Base Oaks" and "Outgoing Road Base Farm" that were provided to "FEDS PL" for no fee. This evidence confirms the quantity of material that was transported from the Banksmeadow facility to the land, in the period 12 January - 22 April 2010 (Exhibit P12, tab 39).
I am, therefore, satisfied beyond reasonable doubt that the offending material was transported to the land between 1 May and 30 September 2009, and between 12 January and 22 April 2010.

The material transported was "waste"

As discussed and found above, I am satisfied that all the material transported to the land in the charge periods was "waste".
In addition, Foxman made an admission that "any material that BBR produced which didn't meet either the recovered aggregate exemption or a recovered fines exemption, or a specific exemption was waste" (Tp1049, LL32 - 44). None of the material deposited at the land was covered by an exemption (see [210] - [258]), and Foxman admits that the material was waste and should have been deposited at a licensed landfill.

The place to which the material was transported was being used as a waste facility

As noted above ([272]), I am satisfied of this element beyond reasonable doubt.

The place to which the material was transported cannot be lawfully used as a waste facility for that waste

Again, for the same reasons as are given above ([275]), I am satisfied of this element beyond reasonable doubt.

The defendant caused the material to be so transported

I am also satisfied beyond reasonable doubt that BBR "caused" the material to be transported to the land.
The meaning of the word "cause" in the criminal context was discussed in Walker Corporation Pty Ltd v Director - General, Department of Environment, Climate Change and Water [2012] NSWCCA 210; 82 NSWLR 12, at [80]. The Court of Criminal Appeal set out some relevant principles including that "the Defendant must engage in a positive act to 'cause' something to occur and this act need not be an immediate cause".
The fact that BBR was invoiced by Foxy's Transport for the costs associated with the transportation of the fill material to the Land in the charge periods (see [290] above) demonstrates that there was a positive act undertaken by BBR, namely, the engagement of a third party to transport the waste, which had the effect of "causing" the transportation of the waste to the land.
Further, a number of admissions were made by Foxman concerning the transportation of material to the land in both charge periods. (In respect of the first charge period, see Wilson 22/12/11, par 29.)
Foxman admitted that all the material deposited on the land "had been imported from Botany Building Recyclers" (see McEwan 1/10/10 par 55). He also admitted (Tp969, LL35 - 41) that, "on every occasion [he] gave the orders … for the material to be transported from BBR to Foxman's Valley", and BBR was invoiced accordingly.
Howell also said that Foxman would "ring [him] up and say 'look, I've got the trucks coming out tomorrow with x amounts of loads as filling'" (Exhibit P13, tab JI-7, Q 78). Howell also told Savage (Savage 7/10/10, par 17) that he worked for BBR, and was "expecting more trucks to arrive around midday to deliver more material".
Also, Smith deposed ([9] - [10]) to delivering material from the Banksmeadow facility to the land, at Foxman's direction.
By virtue of s 169(4) of the POEO Act, the intention and purpose of Foxman in directing the delivery of the material to the land is taken to be the state of mind of BBR.
For those reasons, I am satisfied beyond reasonable doubt that BBR "caused" the material to be transported to the land. For the same reasons as given in respect of his personal guilt of the dumping offences (see [277] - [282] above), Foxman is guilty of both charges in respect of unlawful transportation of waste under s 143(1).

G: Findings on Guilt

Based on all I have written above, I find the defendants guilty of all the offences charged, namely: 1. In relation to Foxman Environmental Development Services Pty Ltd that, from about 1 May 2009 to about 30 September 2013, as the owner of the Land, it used the Land as a waste facility without lawful authority in contravention of s 144(1) of the POEO Act (matter 51244 of 2011). 2. In relation to Botany Building Recyclers Pty Ltd that: 1. between about 1 May 2009 to 30 September 2009 inclusive, it caused waste to be transported to a place that could not lawfully be used as a waste facility, in contravention of s 143(1) of the POEO Act (matter 51251 of 2011); and 2. between about 12 January 2010 to 22 April 2010 inclusive, it caused waste to be transported to a place that could not lawfully be used as a waste facility, in contravention of s 143(1) of the POEO Act (matter 51252 of 2011). 1. In relation to Phillip Foxman, by reason of s 169(1) of the POEO Act that : 1. between about 1 May 2009 to about 30 September 2013, he committed an offence in contravention of s 144(1) of the POEO Act (matter 51249 of 2011); 2. between about 1 May 2009 to 30 September 2009 inclusive, he committed an offence in contravention of s 143(1) of the POEO Act (matter 51253 of 2011); and 3. between about 12 January 2010 to 22 April 2010 inclusive, he committed an offence in contravention of s 143(1) of the POEO Act (matter 51254 of 2011).

H: Orders

It will be necessary for a sentencing hearing to be held in due course.
For that purpose, all six matters are to be listed before the List Judge on Friday 31 July 2015 to appoint a date or dates for that sentencing hearing, and to make appropriate pre-trial directions.
All exhibits and documents marked for identification may be returned to the parties.

Amendments 03 July 2015 - plea amended to not guilty in coversheet Evidence Act 1995 s 140(2) amended to Evidence Act 1995 s 141(2) in paragraph 106 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 July 2015

Environment Operations Act 1997(NSW)

The related Class 4 proceedings

Council had contended, inter alia, that many conditions of the DC had been breached (see Exhibit P8, tab 32), and its Class 4 proceedings were commenced on 23 July 2010. In turn, FEDS brought its own Class 4 proceedings against the Council (11/40062) in January 2011.
The Council's amended Class 4 summons sought declaratory and injunctive relief, under s 124 of the Environmental Planning and Assessment Act 1979 ("EPA Act"), s 252 of the POEO Act, and s 336 of the Water Management Act 2000 ("the WM Act"), in respect of alleged breaches of those Acts, arising from the unlawful deposit of partially contaminated fill on Foxman's Valley.
FEDS' proceedings sought declaratory relief that a 2010 DA, submitted in respect of Foxman's Valley, was incorrectly classified by Council as "designated development", namely "waste management facilities or works", as defined in the EPA Act and Regulation.
The two Class 4 matters were heard together between 28 February and 21 July 2011, and decided in a mammoth judgment delivered by Pepper J on 22 May 2013 (Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 5); Foxman Environmental Development Services Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 68). The Council was granted the declaratory and injunctive relief it sought, and FEDS' summons was dismissed.
Costs questions, site remediation, and other issues (including possible contempt of the orders made in 40598), have brought one or both Class 4 matters back before Pepper J on several occasions since. Foxman told the Court, during the Class 5 hearing before me, that he will be seeking leave to appeal Pepper J's decision (Tpp43 - 44). In the meantime the Council's Class 4 proceedings are due back before Pepper J on Monday 27 July 2015.
While I have avoided having any regard to Her Honour's judgments in those Class 4 proceedings, much of the evidentiary material apparently relied upon in those proceedings has been brought forward, and/or updated, and relied upon again, in the present Class 5 proceedings.

D: "Waste"

A common element of all six charges is the need for the prosecutor to prove beyond reasonable doubt that the fill material transported to, and stored and/or disposed of at, Foxman's Valley was "waste".
As distinct from the definition advanced by defendants ([6] above), the Court must have regard to the various definitions, and other relevant provisions, in relevant parts of the "waste regulatory regime".
The Court of Criminal Appeal also discussed the definition of "waste" in the POEO Act, and its history - see Shannongrove Pty Ltd v Environment Protection Authority [2013] NSWCCA 179; 84 NSWLR 668, especially at [5] - [24] and [40] - [41]. That discussion was "embraced by Pain J" in Director-General, Department of Planning and Infrastructure v Glass Recovery Services Pty Limited [2015] NSWLEC 49, at [73 - [78].
I turn, therefore, to collect the various relevant provisions.

Exemptions

Pursuant to cls 51 and 51A of the Waste Regulation, the EPA has the power, in respect of material falling under paragraph (d) of the definition of "waste" in the Dictionary, to grant an exemption, either general or specific, that relieves a person or class of persons from complying with the licensing requirements for premises-based scheduled activities, and for contributions payable by a licensee of a waste facility (see s 48 and 88 of the POEO Act).
Regulations 51 and 51A provide as follows (Exhibit P2, tab 16): 51 General provisions relating to exemptions (1) The EPA may grant an exemption under this clause if authorised to do so by any provision of the Act or by another provision of this Regulation. (2) An exemption may be granted in relation to: (a) any person or class of persons, or (b) any premises or class of premises, or (c) any area or class of areas, or (d) any activity or class of activities, or (e) any other matter or thing or class of matters or things. (3) An exemption granted under this clause may be a general exemption or a specific exemption. (4) A general exemption may be given by way of notice published in the Gazette. A specific exemption may be given after an application is made to the EPA. ... (8) A general exemption may be amended or revoked by the EPA by way of notice published in the Gazette. ... 51A Exemptions relating to certain waste (1) This clause applies to: (a) waste that is waste by virtue of paragraph (d) of the definition of waste in the Dictionary to the Act, and ... (2) The EPA may from time to time grant an exemption under clause 51 that exempts a person or class of persons from any one or more of the following provisions in relation to an activity or class of activities relating to waste to which this clause applies: (a) the provisions of sections 47-49 and 88 of the Act, (b) the provisions of Schedule 1 to the Act, either in total or as they apply to a particular type of activity, (c) the provisions of Part 3 and clauses 45 and 47 of this Regulation.
Exemptions, and applications made by or on behalf of the defendants for different "resource recovery" exemptions, occupied much time during the trial.
The EPA had in place, at all relevant times, a set of "Guidelines on Resource Recovery Exemptions (Land Application)" (Exhibit P25), published in April 2008, and drawn to the defendants' attention (in a letter to Scimone on 22 January 2009 - Exhibit P17, p31).
Samples of material taken from various sites were tested against the applicable "general exemptions" in place at the time, and the defendants made several unsuccessful applications for specific or new general exemptions (Exhibit P17).
Of the many exemptions put in place, and published on the EPA website, those general exemptions most relevant to this case first came into force in 2008 or 2009, and have been updated from time to time since. They are:

At a glance

Court

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Before

Catchwords

Source

Catchwords

Judgment (23 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (10)

Cited By (6)