Environment Protection Authority v Eastern Creek Operations Pty Limited

Land and Environment Court (NSW)|2020-11-27|Before: Pain J, Hodgson J

SOLICITORS: Environment Protection Authority (Prosecutor) Ashurst (Defendant) File Number(s): 19/335230, 19/335231

Bases for Notices of Motion

The notices of motion raise a collateral attack on an administrative act being the issuing of a statutory notice, such as occurred in Selby v Pennings (1998) 102 LGERA 253 and Sutherland Shire Council v Benedict [2015] NSWLEC 101 (Benedict), for example. Eastern Creek submits that the Court is able to determine such an attack as a preliminary matter in these proceedings pursuant to s 247G(2) and (3)(f), (g) of the Criminal Procedure Act 1986 (NSW) (CP Act). Section 23 of the Land and Environment Court Act 1979 (NSW) gives the Court broad powers to make orders such as those sought by Eastern Creek. Section 247G of the CP Act provides: Division 2A Case management provisions and other provisions to reduce delays in proceedings … 247G Preliminary hearings (1) At the first mention of proceedings or at any other time, the court may order the prosecutor and the defendant to attend one or more preliminary hearings before the court. (2) During a preliminary hearing, the court may make such orders, determinations or findings, or give such directions or rulings, as it thinks appropriate for the efficient management and conduct of the proceedings. (3) Without limiting subsection (2), the court may take any or all of the following action under that subsection - … (f) hear and determine a submission that the case should not proceed to trial prior to the commencement of the trial, (g) give a ruling on any question of law that might arise at the trial or sentencing hearing. (4) Despite any other provision of this Act, the court may make any order, determination or finding, or give any ruling, under this section on application by a party to the proceedings or on the court's own initiative. (5) Any order, determination or finding made, or ruling given, by the court under this section is binding on the presiding Judge in the proceedings unless, in the opinion of the presiding Judge, it would not be in the interests of justice for the order, determination, finding or ruling to be binding. ….
The EPA did not dispute that the Court could hear the notices of motion. The bases relied on by Eastern Creek to do so appear sound.

Legislation and statutory scheme relevant to s 191 Notice

Protection of the Environment Operations Act 1997 (NSW)

Relevant sections of the POEO Act provide: Chapter 1 Preliminary 3 Objects of Act The objects of this Act are as follows - (a) to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development, (b) to provide increased opportunities for public involvement and participation in environment protection, (c) to ensure that the community has access to relevant and meaningful information about pollution, (d) to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following - (i) pollution prevention and cleaner production, (ii) the reduction to harmless levels of the discharge of substances likely to cause harm to the environment, (iia) the elimination of harmful wastes, (iii) the reduction in the use of materials and the re-use, recovery or recycling of materials, (iv) the making of progressive environmental improvements, including the reduction of pollution at source, (v) the monitoring and reporting of environmental quality on a regular basis, …. Chapter 7 Investigation Part 7.1 Preliminary 184 Purposes for which powers under Chapter may be exercised Powers may be exercised under this Chapter for the following purposes - (a) for determining whether there has been compliance with or a contravention of this Act or the regulations or any environment protection licence, notice or requirement issued or made under this Act, (b) for obtaining information or records for purposes connected with the administration of this Act, (c) generally for administering this Act and protecting the environment. … Part 7.3 Powers to require information or records … 191 Requirement to provide information and records (EPA) (1) The EPA may, by notice in writing given to a person, require the person to furnish to it such information or records (or both) as it requires by the notice in connection with any matter relating to its responsibilities or functions under this Act. (2) This section is not limited to matters in respect of which the EPA is the appropriate regulatory authority. … 193 Requirement to provide information and records (authorised officers) (1) An authorised officer may, by notice in writing given to a person, require the person to furnish to the officer such information or records (or both) as the officer requires by the notice in connection with any matter within the responsibilities and functions of the regulatory authority that appointed the officer. (2) In the case of authorised officers appointed by the EPA, this section is not limited to matters in respect of which the EPA is the appropriate regulatory authority. … 195 Provisions relating to records (1) A notice under this Part may only require a person to furnish existing records that are in the person's possession or that are within the person's power to obtain lawfully. (2) The body or person to whom any record is furnished under this Part may take copies of it. (3) If any record required to be furnished under this Part is in electronic, mechanical or other form, the notice requires the record to be furnished in written form, unless the notice otherwise provides. … Part 7.7 General 211 Offences (1) A person who, without lawful excuse, neglects or fails to comply with a requirement made of the person under this Chapter is guilty of an offence. (2) A person who furnishes any information or does any other thing in purported compliance with a requirement made under this Chapter, knowing that it is false or misleading in a material respect is guilty of an offence. (3) A person who wilfully delays or obstructs an authorised officer in the exercise of the authorised officer's powers under this Chapter is guilty of an offence. (4) A person who impersonates an authorised officer is guilty of an offence. Maximum penalty (subject to sections 204 and 208) - (a) in the case of a corporation - $1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or (b) in the case of an individual - $250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues. …

Protection of the Environment Operations (Waste) Regulation 2014 (NSW)

Relevant provisions of the Protection of the Environment Operations (Waste) Regulation 2014 (NSW) (Waste Regulation) provide: Part 9 Exemptions from provisions of Act and Regulation 91 General provisions relating to exemptions (1) The EPA may, if authorised to do so by another provision of this Regulation, grant an exemption under this clause from specified provisions of the Act or this Regulation. (2) The EPA may grant an exemption to any person or class of persons. (3) Without limiting subclause (2), any exemption may be granted to any person or class of persons by reference to - (a) any premises or class of premises, or (b) any area or class of areas, or (c) any activity or class of activities, or (d) any other matter or thing or class of matters or things. …. (8) An exemption granted under this clause may be unconditional or may be subject to conditions specified in the notice. (9) The EPA may vary or revoke an exemption granted under this clause by a further notice published or given in accordance with this clause. 92 Exemptions relating to resource recovery (1) This clause applies to the following waste - (a) waste (including any processed, recycled, re-used or recovered substance that is produced wholly or partly from waste) that is applied, or is intended to be applied, to land as follows - (i) by spraying, spreading or depositing it on the land, (ii) by ploughing, injecting or mixing it into the land, (iii) by filling, raising, reclaiming or contouring the land, (b) waste (including any processed, recycled, re-used or recovered substance that is produced wholly or partly from waste) that is used, or is intended to be used, as a fuel, (c) waste used, or intended to be used, in connection with a process of thermal treatment. (2) The EPA may grant an exemption under clause 91 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 4 and clauses 109, 110 and 114 of this Regulation. (3) Without limiting subclause (2), the EPA may also grant an exemption under clause 91 from section 142A of the Act, in relation to the application to land (as referred to in subclause (1)(a)) of waste that is produced wholly or partly from restricted solid waste or waste tyres. (4) However, the EPA may not grant an exemption in relation to land pollution within the meaning of paragraph (a) of the definition of land pollution in the Dictionary to the Act. 93 Supply of waste to which resource recovery exemptions apply (1) The EPA may, by order, impose requirements on a specified person (or a specified class of persons) in relation to the supply by the person (or any person belonging to the specified class) of waste (resource recovery waste) to which a resource recovery exemption applies. (2) An order can only be issued under this clause in relation to the supply by a person of - (a) resource recovery waste that has been generated, processed or recovered by the person, or (b) waste that will become resource recovery waste. (3) An order under this clause is effected as follows - (a) in the case of an order applying to specified persons only - by written notice given to those persons, or (b) in any other case - by notice published in the Gazette. (4) An order under this clause takes effect - (a) on the date on which the order is given or published in accordance with this clause, or (b) if a later date is specified in the notice - the later date. (5) The EPA may vary or revoke an order granted under this clause by a further notice published or given in accordance with this clause. (6) An order under this clause is revoked on the date on which the resource recovery exemption to which it applies is revoked. (7) A person must comply with any requirements imposed on the person (or a class of persons to which the person belongs), in relation to the supply of resource recovery waste, by an order under this clause. Maximum penalty - 400 penalty units in the case of a corporation, 200 penalty units in the case of an individual. 94 Record keeping (1) A person who is required by an exemption granted, or an order made, under this Part to record information must comply with that requirement and must - (a) ensure that each of the records is retained for at least 6 years after the record is made, and (b) make any of the records available for inspection and copying by an authorised officer on request. Maximum penalty - 200 penalty units in the case of a corporation, 100 penalty units in the case of an individual. (2) The variation or revocation of an exemption granted, or an order made, under this Part does not affect the operation of subclause (1) in relation to information that the exemption or order required to be recorded prior to the variation or revocation. (3) Nothing in this clause - (a) limits the conditions that may be imposed on any exemption granted under this Part, or (b) limits the requirements that may be imposed by an order made under this Part or affects the operation of clause 93(7).

The organic outputs derived from mixed waste order 2014

"The organic outputs derived from mixed waste order 2014" dated 21 November 2014 issued under Pt 9 reg 93 of the Waste Regulation (the Order) imposed various requirements on processors of MWOO including clause 4.9 "Record keeping and reporting", which required certain records to be kept for a period of six years. Clause 4.9 provided: The processor must keep a written record of the following for a period of six years: • the sampling plan required to be prepared under clause 4.2.1; • all characterisation sampling results in relation to organic outputs supplied; • the quantity of any organic outputs supplied; • the name and address of each person to whom the processor supplied the organic outputs; • the location(s) where the organic outputs are applied, including the address and paddock or plot identification; • the rate(s) at which the organic outputs are applied to the land at each location as defined above; and • the date(s) upon which the organic outputs are applied to the land at each location as defined above.
Section 5 "Definitions" stated that "application or apply to land means applying to land by spraying, spreading or depositing on the land; or ploughing, injecting or mixing into the land; or filling, raising, reclaiming or contouring the land".
Under the heading "Notes" the Order stated: The conditions set out in this order are designed to minimise the risk of potential harm to the environment, human health or agriculture, although neither this order nor the accompanying exemption guarantee that the environment, human health or agriculture will not be harmed. … Research program The goal of the Resources Recovery Order and Resource Recovery Exemption for organic outputs is to facilitate the resource recovery of fit for purpose organic outputs by minimising the amount of physical and chemical contaminants. Trials and research will be conducted to examine the environmental and human health impacts of contaminants in the organic outputs. The EPA intends to extend the RRE for agricultural uses following a review of the results of the research and trials. The nature of the extended RRE for broad acre agricultural use, non-contact agricultural use and plantation forestry use will be determined taking into account: • trials that are to be conducted in collaboration with the processors of mixed waste, • the goal of the exemption, • the environmental, agricultural and human health impacts of the use of organic outputs, • the technological capabilities of AWT facilities including the adequacy of pre-sorting processes, and • community acceptance of the use of organic outputs.
The Order was revoked on 26 October 2018 by means of a Notice of Revocation dated 26 October 2018 (the Revocation).

The organic outputs derived from mixed waste exemption 2014

"The organic outputs derived from mixed waste exemption 2014" dated 21 November 2014 issued under Pt 9 regs 91 and 92 of the Waste Regulation (the Exemption) stated that it "exempts a consumer of organic outputs derived from mixed waste (organic outputs) from certain requirements under the [POEO Act] and the Waste Regulation in relation to the application of that waste to land, provided the consumer complies with the conditions of this exemption".
Condition 7.2 of the Exemption provided: 7.2 The organic outputs can only be applied to land as a soil amendment for: 7.2.1 soil improvement or site rehabilitation at mine sites, or 7.2.2 plantation forestry use, or 7.2.3 non-contact agricultural use, or 7.2.4 broad acre agricultural use
Condition 7.15 of the Exemption provided: 7.15 Prior to receiving and land applying the organic outputs, where the application will result in greater than 10 tonnes/hectare (dry weight) total organic outputs, the consumer must ensure that: 7.15.1 each of the composite samples referred to in section 7.13 are tested for contaminants listed in Column 1 of Table 2. 7.15.2 the contaminant concentrations in the soil prior to application of organic outputs to the land do not exceed the maximum levels specified for those contaminants for the relevant land use in either Column 2 or Column 3 of Table 2.
The Exemption was revoked on 26 October 2018 by means of the Revocation.

Notice to Provide Information and/or Records issued under s 191 POEO Act

The Notice dated 24 September 2018 provides: NOTICE TO PROVIDE INFORMATION AND/OR RECORDS Please read this notice carefully You must respond in writing by 5pm on Friday 28 September 2018 Why is the EPA writing to you The Environment Protection Authority (EPA) has been undertaking an investigation into the potential risk to the environment and human health of land applying mixed waste organic outputs (MWOO). At a meeting with you on 22 August 2018, the EPA's Anissa Levy, A/Chair and Chief Executive Officer advised you that the EPA would be formally requesting records and information as part of this investigation. Please read this notice carefully and answer each of the questions outlined in the "Requirement to Provide Information and/or Records" section below. You are required to reply by 5pm on Friday 28 September 2018 to: Dr Helen Prifti, NSW Environment Protection Authority at waste.exemptions@epa.nsw.gov.au or at PO Box A290, SYDNEY SOUTH NSW 1232. BACKGROUND A. EASTERN CREEK OPERATIONS PTY LIMITED (the licensee) is the holder of Environment Protection Licence No. 11798 (the licence) issued under the Protection of the Environment Operations. Act 1997 (the Act). The licence authorises the carrying out of activities at WALLGROVE ROAD, EASTERN CREEK, NSW, 2766 (The Premises). B. The licensee receives and processes mixed putrescible waste at the Premises to produce an output that is applied to land. The received wastes are processed and an output produced to the specifications and requirements of the EPA's resource recovery order the organic outputs derived from mixed waste order 2014. C. The EPA is investigating the potential risk to the environment and human health of land applying MWOO. PURPOSE(S) FOR WHICH THIS NOTICE IS ISSUED D. The NSW EPA is responsible for the administration and enforcement of the Act and the Protection of the Environment Operations (Waste) 2014 (the Regulation). E. Under Section 191 of the Act, the EPA may, by notice given to the person in writing, require the person to furnish to it such information or records (or both) as it requires by the notice in connection with any matter/s relating to the EPA's responsibilities or functions under the Act and Regulation. The power to issue the notice is not limited to matters in respect of which the EPA is the Authorised Regulatory Authority (ARA). MATTER/S TO WHICH THIS NOTICE RELATES F. The EPA is investigating the potential risk to the environment and human health of land applying mixed waste organic outputs under the Act and Regulation from the Premises. REQUIREMENT TO PROVIDE INFORMATION AND/OR RECORDS 1. The EPA requires you to provide the following information and/or records for the time period between 1 January 2010 to 30 July 2018 (inclusive): a) The exact locations of each MWOO land application site - property names and addresses, paddock locations and plot identification. b) Dates that MWOO was delivered to each application site. c) Dates that MWOO was applied to land at each application site. d) Total tonnages of WWOO delivered to each application site. e) Application rates of MWOO applied on every individual paddock at each application site. f) Description of land use for each application site to which MWOO was applied to [sic]. g) Contact details for land owner and/or land manager for each MWOO application site, including their full name, address, telephone number(s) and email. h) Where a secondary supplier was involved, provide the name, address, telephone number(s), email for each company or person. i) Provide full contact details of all companies or persons that apply MWOO to land at each application site. j) All test data of MWOO produced at the Premises, including characterisation and any other additional sampling and testing. k) Copy of the sampling plan required by the organic outputs derived from mixed waste order 2014. l) Copy of the statement of compliance required to be provided by the processor (licensee) to the consumer under the organic outputs derived from mixed waste order 2014. m) Copy of the statement of compliance required to be provided to the processor by the consumer under section 7.18 of the organic outputs derived from mixed waste exemption 2014. n) Test data on each application site as required by section 7.13, 7.14 and 7.15 of the organic outputs derived from mixed waste exemption 2014. o) all information and records required in paragraphs 1a) to 1j) in relation to organic outputs from the premises held prior to the commencement of the EPA's resource recovery exemption in 2010. 2. You do not have to furnish any record specified above unless that record is in your possession or it is in your power to obtain it lawfully. 3. The information and/or records must be provided in writing with all data presented in electronic spreadsheets, unless otherwise stated. 4. The information and/or records must be provided to Dr Helen Prifti at waste.exemptions@epa.nsw.gov.au WARNING AND INFORMATION ABOUT THIS NOTICE • It is an offence against section 211 of the Protection of the Environment Operations Act 1997 ("the Act") to neglect or fail to comply with this notice without lawful excuse. It is also an offence under section 211 to furnish information under this notice knowing that the information is false or misleading in a material respect. • The maximum penalty that a court may impose for each of these offences is, for a corporation, $1,000,000 and a further $120,000 for each day the offence continues, and, for an individual, $250,000 and a further $60,000 for each day the offence continues. • Under section 319A of the Act, your obligation to provide the information and/or records specified in this notice continues until the notice is complied with in full, even if the due date has passed. • The requirements of this notice may only be varied or revoked by the EPA by written notice. • The fact that Information and/or records required by this notice might incriminate you or make you liable to a penalty does not excuse you from having to comply with the notice. • The fact that a record provided by you in compliance with this notice might incriminate you does not make that record inadmissible in evidence against you in criminal proceedings. • However if you are a natural person (that is, an individual rather than, for example, a company or other incorporated body) you may object to providing information which is required by this notice, on the ground that the information might incriminate you. You must still provide the information but it is not admissible in evidence against you in criminal proceedings if you make this objection, except for an offence under section 211 of the Act, including the offence of knowingly, answering a question falsely or in a way that is misleading in a material respect. • This warning is given for the purposes of section 212 of the Act. • The Act defines "records" as including plans, specifications, maps, reports, books, and other documents (whether in writing, electronic form or otherwise). • This notice is issued under section 191 of the Act.
A Variation Notice dated 28 September 2018 extended time for compliance for items 1(a)-(f) to 5 October 2018 and items 1(g)-(o) to 26 October 2018.

Draft Statement of Agreed Facts

The parties agreed that a subset of a draft Statement of Agreed Facts dated 6 February 2020 (draft SOAF) could be relied on for the purposes of these motions. Relevant paragraphs are extracted as follows (attachments and footnotes omitted): The Defendant and the EPL 2 Since 2004, Eastern Creek Operations Pty Limited (ACNCAN 105 104 087) (the Defendant) has held Environment Protection Licence number 11798 (the EPL) under the POEO Act. The EPL authorises the scheduled activities of composting, resource recovery, waste processing (non-thermal treatment) and waste storage activities at the waste management facility at Wallgrove Rd, Eastern Creek NSW 2766 (the Premises). A copy of the EPL is at Attachment 1. … MWOO 9 Alternative Waste Treatment (AWT) facilities process mixed residual waste from domestic red-lid garbage bins and their commercial equivalents, which contain a wide variety of waste materials. Mixed waste is generally a mixture of: "(a) residual household waste that contains putrescible organics, (b) waste from litter bins collected by or on behalf of local councils, (c) commercial kerbside waste collection services provided by or on behalf of councils, (d) commercial waste sourced from restaurants, clubs, pubs, hotels, motels, resorts, offices, schools and shopping centres that is similar in composition to household waste (but may include a higher proportion of food waste), (e) manure, (f) food waste, (g) animal waste, (h) grit or screenings from sewage treatment systems that have been dewatered so that the grit or screenings do not contain free liquids, (i) up to 20% source separated household garden and food waste." 10 AWT facilities sort and process that waste into: a) recyclable material such as glass and metals; b) residuals for landfill; and c) an organic based output known as MWOO. … 12 MWOO is different to compost in that it contains numerous chemical contaminants including heavy metals, organic contaminants and physical contaminants such as plastic, glass and metal. 13 MWOO is a highly heterogeneous material and its composition changes over time depending on the material inputs. Concentrations of nutrients and contaminants in MWOO can vary widely, with high concentrations in various contaminants regularly occurring due to changes in the source materials. 14 MWOO has been applied to land in NSW since 1999. The Defendant started producing MWOO in 2004. … MWOO resource recovery exemptions and order 17 In 2010, the EPA issued an exemption from certain provisions of the POEO Act under clauses 51 and 51A of the Protection of the Environment Operations (Waste) Regulation 2005 (2005 Waste Regulation), which was in force at that time. A copy of this Exemption, The organic outputs derived from mixed waste exemption 2010, dated 5 March 2010 (the Original Exemption), is at Attachment 3. 18 The Original Exemption allowed MWOO to be applied to land as a soil amendment for agricultural uses, forestry and mine site rehabilitation. The Original Exemption contained controls on both the processor and the consumer (the person who applies MWOO to land or causes or permits MWOO to be applied to land) to minimise any potential negative impacts of the use of MWOO. 19 On 23 April 2010, the Original Exemption was revoked and replaced by The organic outputs derived from mixed waste exemption 2010 (23 April 2010), a copy of which is at Attachment 4. 20 On 4 March 2011, the 23 April 2010 exemption was revoked and replaced by The organic outputs derived from mixed waste exemption 2011 (4 March 2011), a copy of which is at Attachment 5. 21 On 6 June 2014, the 4 March 2011 exemption was revoked and replaced by The organic outputs derived from mixed waste exemption 2014 (6 June 2014), a copy of which is at Attachment 6. 22 The above exemptions imposed requirements on both the MWOO processors and MWOO consumers. 23 On 21 November 2014, the 6 June 2014 exemption was revoked and replaced by the following Resource Recovery Order and Exemption granted under clauses 91, 92 and 93 of the Protection of the Environment Operations (Waste) Regulation 2014: a. The organic outputs derived from mixed waste order 2014 (21 November 2014) (the Order), a copy of which is at Attachment 7; and b. The organic outputs derived from· mixed waste exemption 2014 (21 November 2014) (the Exemption), a copy of which is at Attachment 8. 24 The Order and the Exemption were to be read together, with the Order applying to MWOO processors and the Exemption applying to MWOO consumers. … Operations at the Defendant's facility … 29 Between 2010 and 2018, the Defendant received and processed at the Premises about 80 truckloads per day of mixed putrescible waste, predominantly red lid bin waste from local councils. … 33 The Defendant sold and supplied the MWOO to 14 distributors who provided it to farms and mine rehabilitation sites to be applied to land. Between 2010 and 2018, the Defendant's MWOO was transported to close to 1000 locations. About three quarters of this MWOO was used for broad acre agriculture (pasture and pasture cropping), about one quarter was used for mine site rehabilitation and a small amount used for making bricks. … 35 At times, the Defendant produced approximately 75,000 tonnes of MWOO each year and was shipping over 2000 truck loads of MWOO each year. … Research projects relating to MWOO … 40 From 2011 to 2017, the EPA coordinated six research projects with $2.7 million of Environmental Trust funding, conducted by The University of New England, The University of Sydney, CSIRO, the Department of Primary Industries and the Office of Environment and Heritage (the research program). The research program assessed the benefits and risks of land application on MWOO and concluded in November 2017. 41 In September 2017, the EPA formed an independent Technical Advisory Committee (TAC) under s 29 of the Protection of the Environment Administration Act 1991. The TAC comprised of scientific experts in environmental chemistry and toxicology, soil science, agriculture, human health risk, environmental exposures, policy development and stakeholder interactions. The TAC's remit was to review the findings of the research program and make recommendations to the EPA on potential regulatory responses to the findings. 42 On 24 May 2018, the TAC delivered its final report to the EPA, concluding that the then current use of MWOO on agricultural land at 10 tonnes per hectare was not beneficial in terms of improved crop production, or improving soil chemical or physical quality. Higher and/or repeat applications would be required to have any significant effect on crop growth and quality, and on soil chemical and physical quality. However higher application rates would run the risk of greater contamination of soils by metals, persistent organic chemicals and physical contaminants and may limit future land use options. The report indicated that the presence of physical contaminants in MWOO raised significant concerns for human and animal health (glass contamination of crops and forage) and concerns for aesthetic quality of soils and soil physical quality degradation. The TAC report made recommendations relating to physical contaminants, waste processing, and land use at application sites, including: "1) In their current form, MWOO generated under the AWT program is not suitable for use on broadacre agricultural soils. The use of MWOO in horticultural soils is also not recommended. 2) Better source separation is needed to remove plastics, metals and glass contaminants at the householder level if MWOO is to be applied to land. 3) Better engineering/technology is needed to reduce sources of metals/plastics/glass during processing of waste if MWOO is to be applied to land. 4) It is recommended that the current criteria for the physical contaminants be reviewed and stricter controls implemented. An unknown proportion of material is visible and potentially adds more contaminant to the land over time, with comminution of plastics in particular raising concerns for soil physical quality. 5) If MWOO is to be applied to agricultural land, it is recommended that mechanical breakdown of waste through processes such as hammer-milling and crushing not be used to meet physical contaminant limits, as already specified in the resource recovery orders for composts and pasteurised garden organics. The breakdown of plastics to smaller particles should not be considered beneficial, as colloidal particles (<2 µm) have been demonstrated to cause pore blockage in soils, resulting in significant reductions in ability to allow water infiltration. A limit for physical contaminants having a diameter < 2 mm should be set. 6) If MWOO is to be applied to agricultural land, it is recommended that the application rate guidance be reviewed and harmonised with other waste orders/guidelines (e.g. biosolids) using new frameworks as described in the National Environmental Protection Measure, contaminated Sites (2013 Amendment). The major chemical contaminants of concern are PBDEs, phenol, phthalates, cadmium, copper and zinc …" … The Defendant's response to the Notice 51 On 5 October 2018, the Defendant provided the EPA with its response to items 1(a) to 1(f) of the Notice. The content of this part of the response is not the subject of these proceedings. … Harm resulting from the offences 83 In October 2018, the EPA commissioned Environmental Risk Sciences Pty Ltd (EnRiskS) to undertake an interim Human Health and Ecological Risk Assessment (HHERA) of the application of MWOO to land. An interim HHERA report, Human Health and Ecological Risk Assessment, Application of Alternative Waste Technologies Materials to Agricultural Land was published on 19 October 2018. 84 In May 2019, the EPA engaged EnRiskS to revise the interim HHERA and produce a final HHERA for the application of MWOO to land. The EPA asked EnRiskS to consider additional inputs in the final HHERA, including the test data supplied by the Defendant in its Notice response, test data supplied by other AWT facilities that supplied MWOO over the Relevant Period and data supplied by the laboratories used by the AWT facilities to test their MWOO. 85 The final HHERA report titled Human Health and Ecological Risk Assessment, Application of Alternative Waste Technologies Materials to Agricultural Land, 30 July 2019, provided an updated assessment of the human health and ecological risks posed by the application of MWOO to agricultural land. One of the issues it addressed was how the additional data about the MWOO changed the human health and ecological risks identified in the interim HHERA report.

Eastern Creek evidence

Eastern Creek read the affidavit of Ms Rebecca Dixon, solicitor, affirmed 28 May 2020 and tendered Exhibit RED-1 to that affidavit (marked Ex A). The factual background described in Ms Dixon's affidavit is largely reflected in the draft SOAF extracted in [18] above. In addition to the background outlined in the draft SOAF, Ms Dixon deposed that the Order and the Exemption were revoked on 26 October 2018 by means of the Revocation, as noted in [11] and [15] above.
Ms Dixon's affidavit also details Eastern Creek's request for further and better particulars on 20 November 2019 and subsequent communications between the parties from November 2019 to May 2020. The various instruments in the statutory scheme summarised in [8]-[17] above formed part of Ex A. Eastern Creek's Environment Protection Licence number 11798 (EPL) (licence version date 1 May 2020, edition date 14 February 2003) was also part of Ex A.
Eastern Creek read a second affidavit of Ms Dixon affirmed 6 August 2020 and tendered Exhibit RED-2 to that affidavit (marked Ex B).
Ms Dixon deposed that by email on 25 October 2018 the EPA provided Eastern Creek with a copy of a report titled "Alternative Waste Treatment - Mixed Waste Derived Organics" prepared by the Technical Advisory Committee dated April 2018 (the TAC Report).
Eastern Creek read in part the affidavit of Ms Sara Anderson, solicitor, affirmed 22 June 2020, to the extent that it relied on Annexure F, a letter sent from Ms Anderson to Ms Dixon dated 19 June 2020. The part of that letter that was relied on stated: The identification of the "matter in respect of which the EPA required the information specified in the Notice" is to be determined by reference to the contents of the Notice as discernible on its face: SA Brewing Holdings Pty Ltd v Baxt (1989) 89 ALR 105 per Fisher and French JJ, D'Anastasi v Environment, Climate Change and Water NSW (2011) 81 NSWLR 82 per Young JA (with Campbell JA agreeing); Aurora Construction Materials Pty Ltd v Victorian Workcover Authority [2018] VSCA 165 at [83]-[84] per Kaye JA (with Tate JA agreeing). To the extent that you seek materials beyond this, they are not relevant and your approach is impermissible.

EPA evidence

The EPA read the affidavit of Dr Helen Prifti, unit head of the resource recovery innovation team at the EPA, affirmed 3 June 2020 and tendered Exhibit HP-2 to that affidavit (marked Ex 1).
Dr Prifti deposed that on 9 August 2018, she and other EPA officers met with the CEOs of the five Alternative Waste Treatment (AWT) facilities, including Mr Nathan Lopez chief executive officer (CEO) of Eastern Creek, in order to present the EPA's findings on the MWOO research, including that MWOO was unsuitable for agriculture and horticulture. It was explained that the EPA would be imposing restrictions on using MWOO in agriculture with immediate effect, as recorded in Speaking Notes in Ex 1. Amongst other things, the EPA informed meeting attendees that: Consumers of the outputs, including farmers, are likely to be concerned about what they've already land applied. It is clear from the EPA's discussions with a small number of farmers that they have not been appropriately informed of what they were applying to their land.
On 17 August 2018, the EPA emailed the five AWT facility CEOs to invite continued discussions at a follow-up meeting. That email (included in Ex 1) requested that the AWT facilities provide certain information "for the EPA to be able to understand any potential risks and what communication may be needed". The email stated: We need to know (i) The geographical areas in which mixed waste organic outputs have been land applied (town/region, local government area). (ii) What type of land it was applied to (agricultural, mine site rehabilitation)? (iii) What is the ratio of agricultural land to mine site rehab to which you have sent mixed waste organic outputs? (iv) Where the land use was agricultural, what type of agriculture was it? Please specify the type of crop or grazing animal. (v) Were the crops or animals for human consumption, for stock feed, or another use? (vi) How much of the food produced was for local consumption and how much was for export markets?"
The email also stated that, "[a]t some stage we will require full details of all consumers of these outputs however at present it is enough to categorise this information into user type, for example mine owner, mine lessee, farmer etc."
A further meeting took place on 22 August 2018. The acting Chair and CEO of the EPA, Ms Anissa Levy told attendees that: the EPA needs the information requested in my email as soon as practically possible. The data is needed to answer questions on where the MWOO was used, how it was used and when.
Attendees were asked to provide the requested information by 31 August 2018. According to notes of the meeting (included in Ex 1), Ms Levy told participants that the EPA "[n]eed[s] data that has been requested on where, how, when etc. Need to answer questions that will come from people that have received this material".
On 10 September 2018, the EPA again emailed Eastern Creek to remind them to provide the requested information.
On 11 September 2018 Mr Lopez wrote to Ms Levy expressing his concern about the TAC recommendations and other concerns regarding MWOO. The letter stated, "we are currently considering your request for information about MWOO use."
On 24 September 2018 the EPA issued the Notice. Further correspondence between the parties in October 2018 is recorded in the affidavit.
The EPA tendered a 14-page certificate under s 261 of the POEO Act dated 28 July 2020 (s 261 Certificate) (marked Ex 3) which was not referred to.

Eastern Creek submissions

The EPA bears the onus of proving that the Notice is valid (see Selby v Pennings at 265 per Ipp J and at 283 per Owen J; Benedict at [10] per Pepper J).

Failure to specify the "matter" about which information was required

Eastern Creek submitted that a notice issued under s 191(1) of the POEO Act must fairly indicate to the addressee, firstly, the matter within the responsibilities and functions of the regulatory authority about which the officer requires information: D'Anastasi v Environment, Climate Change & Water (NSW) (2011) 81 NSWLR 82; [2011] NSWCA 374 (D'Anastasi) at [9] per Young JA; Pyneboard Pty Ltd v Trade Practices Commission (1982) 57 FLR 368 (Pyneboard) per Northrop, Dean and Fisher JJ; SA Brewing Holdings Ltd v Baxt (1989) 23 FCR 357 (SA Brewing) per Fisher and French JJ at 371-372. Secondly, a notice must also disclose the necessary relationship between the information sought and the matter in respect of which it is sought. This requires a sufficient description of the "matter" to enable the relationship to be discerned: SA Brewing at 370; D'Anastasi at [43]. The identification of the matter in a notice needs to be sufficiently clear and certain in order for it to be valid: Zhang v Woodgate (2015) 208 LGERA 1; [2015] NSWLEC 10 (Zhang) per Preston CJ at [11]. Courts must not be too "precious or hypercritical" about the form of the notice so long as it is clear: D'Anastasi at [47].
In the present case, the Notice failed to identify with any clarity or certainty the matter with which it was concerned.
Firstly, the Notice is unclear about what the phrase "land applying" MWOO means. Land cannot apply MWOO. The use of a verb "applying" may suggest the EPA was concerned with the process of applying MWOO to land. This interpretation is supported by most of the documents sought in the Notice such as dates that MWOO was delivered and applied to land and total tonnages of MWOO delivered to application sites inter alia. Alternatively, the phrase "land applying MWOO" may be interpreted to mean "land-applied MWOO", such that the EPA was investigating the risks to the environment and human health of MWOO that had been applied to land. This interpretation is supported by risks identified in the TAC Report however this was not stated in the Notice. It is ultimately unclear what the EPA was investigating, and the Notice was therefore not sufficiently clear and certain in order for it to be valid: Zhang at [11].
Secondly, the Notice failed to identity how "land applying MWOO" was suspected of posing a risk to the environment or human health. It is not a proper identification of a matter simply to say that the EPA was investigating "the potential risk to the environment and human health of land applying mixed waste organic outputs under the [POEO] Act and [Waste] Regulation from the Premises". The risk of what and to whom is not identified. Nothing prevented the EPA from informing Eastern Creek that it was investigating the risks to the environment and human health identified in the TAC Report, assuming that is what was being investigated. The Notice bears similarities to the notices issued under the Australian Securities Commission Act 1989 (Cth) (ASC Act) found to be invalid in Johns v Connor (1992) 35 FCR 1 and MacDonald v Australian Securities Commission (1993) 43 FCR 466. The phrase "risks to the environment and human health" in the Notice is wide, particularly in the context of the POEO Act which is concerned with wide-ranging risks (see Southon v Beaumont (2008) 69 NSWLR 716; [2008] NSWLEC 12 at [39] per Jagot J). The Notice failed to specify any potential risk to the environment and human health within the broad ambit of matters with which the POEO Act is concerned.
Thirdly, the Notice failed to indicate the matter within the responsibilities and functions of the regulatory authority about which information was required, per D'Anastasi at [9]. Section 184 of the POEO Act sets out the various purposes for which the power to issue a notice in s 191(1) may be exercised. The Notice states that the purposes for which it was issued were that the EPA was responsible for administering and enforcing the POEO Act and Waste Regulation and that the EPA had power to issue the Notice. These stated purposes cannot be regarded as indicating the matter within the responsibilities and functions of the EPA about which it required information.

Failure to indicate the matter in connection with which it was necessary or appropriate to require production of records and information

The Notice also failed to indicate the matter in connection with which it was necessary or appropriate to require production of: 1. all information and records in pars 1(a)-(j) between 1 January 2010 and the date the Exemption came into force on 5 March 2010; 2. all information and records in pars 1(a)-(j) in relation to "organic outputs" from the Premises held prior to the commencement of the Exemption in 2010, as required by par 1(o) of the Notice. There is nothing in the Notice to suggest that the matter with which it was concerned included organic outputs other than MWOO. Accordingly, the Notice disclosed no basis upon which to require the production of information and records relating to such organic outputs; 3. information and records for such a lengthy period of time, namely, a period of eight and a half years for the information sought in pars 1(a)-(n) of the Notice, and a further seven years for the records sought in par 1(o), namely, records held prior to the commencement of the Exemption in 2010; 4. all test data of MWOO produced at the Premises as required by par 1(j), if the matter the EPA was investigating was the process of applying MWOO to land; and 5. a range of information and records sought in par 1 of the Notice, if the matter the EPA was investigating was the possible risks to the environment and human health of MWOO which were identified in the TAC Report. If the EPA was investigating those risks, the matter in connection with which Eastern Creek was asked to provide the dates that MWOO was delivered and applied to each application site or the names, addresses, telephone numbers and email addresses for all persons involved as a secondary supplier of MWOO inter alia is not clear.
For the above reasons, the Notice did not indicate the matter within the responsibilities and functions of the EPA with which it was concerned, nor the necessary relationship between that matter and the information and records sought. The Notice fails to satisfy the basic requirements of validity.
It follows that the summonses should be dismissed. Having regard to the charges as particularised, it is a precondition of the prosecution that the Notice was valid. The relevant "requirement" in both charges concerns Eastern Creek's purported obligation to comply with the Notice. If the EPA cannot establish that the Notice was valid then there was no such "requirement" and both charges must fail.

Reply submissions

In reply Eastern Creek submitted that the issue of severance is inapposite, as it does not address the argument that Eastern Creek has brought on this motion which concerns the manner in which the matter was described in the Notice and the lack of connection between the pieces of information that are sought and the matter as described in the Notice. That is a fundamental problem that stands at the heart of the Notice and it cannot be remedied through severance in any event.
The EPA's reliance on extrinsic contextual material is inconsistent with the position it took earlier in the proceedings when it sought to set aside two subpoenas issued at Eastern Creek's request, at which time the EPA submitted that the identification of the matter in relation to the Notice is to be determined by reference to the contents of the Notice as discernible on its face (see the relevant paragraph extracted from a letter sent by the EPA in June 2020 in [23] above). Contrary to that position, the EPA now seeks to argue that the Notice should be construed by reference to a range of other documents, namely, the Exemption, the Order, the TAC Report, emails sent by the EPA to Eastern Creek requesting information prior to the issue of the Notice, and Eastern Creek's response to those emails (see summary of the EPA's evidence in [24]-[33] above). The EPA also places reliance on statements allegedly made by its officers at meetings attended by officers of Eastern Creek on 9 August 2018 and 22 August 2018.
The contention that Eastern Creek should have gleaned the matter from extrinsic materials should not be accepted. The Notice itself must fairly indicate the matter, per D'Anastasi at [39]. The contextual matters to which the EPA refers do not obviate the need for the Notice to properly identify the matter (see Zhang at [120]). For example, if the EPA intended the reference point for the possible risks to human health and the environment referred to in the Notice to be those identified in the TAC Report, these should have been set out in the Notice.
In any event, even if regard is had to the contextual matters relied on by the EPA, those matters do not illuminate the matter with which the Notice was concerned. Indeed the contextual matters relied on by the EPA raise questions about what the purpose of the Notice was because several different matters such as stakeholder queries and documents the EPA relied on were identified in the meetings.
References in the Exemption, the Order and the TAC Report to trials and research concerning the potential impacts of MWOO on human health and the environment do not shed any light on the matter the EPA was investigating in issuing the Notice. References to research and trials prior to the issuing of the Notice do not in fact reveal that the EPA was investigating the risks identified in the TAC Report.
Email correspondence from the EPA to AWT producers in 2018 requesting certain information also does not illuminate the matter with which the Notice was concerned (see [26]-[27] above). The categories of information sought in 2018 do not correspond with those identified in the Notice. Similarly, statements made in meetings advising Eastern Creek that the EPA would be requesting records and information in connection with an investigation into the potential risk to the environment and human health of land applying MWOO does not further elucidate the matter in the Notice.
As for the TAC Report which did identify possible risks to the environment and human health posed by MWOO, it was not provided to Eastern Creek until 25 October 2018 (see [1] above). This was one month after the Notice was issued on 24 September 2018, three weeks after Eastern Creek was required to, and did, furnish information in response to pars 1(a)-(f) of the Notice (on 5 October 2018), and only one day before the extended date on which it was required to, and did, furnish information in response to pars 1(g)-(o) of the Notice (on 26 October 2018). In those circumstances, the contention that Eastern Creek should have construed the Notice by reference to those risks is untenable.
The cases Commissioner of Taxation (Cth) v Australia & New Zealand Banking Group Ltd; Smorgon v Commissioner of Taxation (Cth) (1979) 143 CLR 499 (Commissioner of Taxation v ANZ) and Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No 3) (1980) 47 FLR 163; [1980] FCA 94 (Melbourne Home) relied on by the EPA concerned notices issued under taxation and competition legislation, the extent of power under the relevant statutes to compel production of documents and whether those particular notices were within power. The cases date back some 40 years and do not represent the end point of jurisprudence on this subject. D'Anastasi and Zhang are recent authorities concerning powers either identical or very similar to the power exercised by the EPA in this case. In both cases, the validity of the notice turned on whether the notice adequately identified the matter, the same issue arising here. Hardie Holdings Pty Ltd v Director-General of the Department of Natural Resources (2007) 151 LGERA 373; [2007] NSWLEC 39 (Hardie Holdings) relied on by the EPA was a single judge decision of this Court decided prior to D'Anastasi and should also not be relied on.
In reply to the EPA's reliance on s 195(1) of the POEO Act which excuses the recipient of a notice from furnishing records not in their possession or power to obtain lawfully, that provision relates only to records and not to information (as stated in the Notice). Both records and information were sought in the Notice. The distinction between the two is identified in D'Anastasi at [65].
The EPA's submission that the Notice was seeking records and information that were already required to be kept by the Order is also incorrect. Clause 4.9 of the Order only required Eastern Creek to keep information for six years whereas the Notice seeks records going back 15 years. Clause 4.9 of the Order did not require Eastern Creek to keep a written record of the following items of information and records which were sought in the Notice: 1. the dates that MWOO was delivered to each application site (Notice par 1(b)); 2. the total tonnages of MWOO delivered to each application site (Notice par 1(d)), given that cl 4.9 of the Order only required Eastern Creek to keep a record of the quantity of any organic outputs supplied, and Eastern Creek principally supplied MWOO to 14 distributors rather than consumers of MWOO; 3. a description of the land use for each application site to which MWOO was applied (Notice par 1(f)); 4. the contact details for each land owner and/or land manager for each MWOO application site (Notice par 1(g)), given cl 4.9 of the Order only required Eastern Creek to keep a record of the name and address of each person to whom it supplied MWOO, and Eastern Creek principally supplied MWOO to distributors; 5. the contact details of all companies or persons that applied MWOO to land at each application site (Notice par 1(i)); 6. a copy of the statements of compliance which each consumer of MWOO was required to provide to Eastern Creek (Notice par 1(m)). Whilst cl 4.7 of the Order required Eastern Creek to obtain statements of compliance from consumers, there was no requirement under cl 4.9 for Eastern Creek to retain those statements for a period of six years; 7. test data which consumers of MWOO were required to collect (Notice par 1(n)); and 8. all information and records required in pars 1(a)-(f) of the Notice in relation to organic outputs held prior to the commencement of the Exemption in 2010 (Notice par 1(o)).

EPA submissions

The EPA submitted that for a notice seeking the production of information or records to be valid it must disclose on its face that the issuing party is entitled to require the recipient to furnish the information therein described, as identified by Gibbs ACJ in Commissioner of Taxation v ANZ at 525 as follows: … must show the person to whom it is addressed that any document which he is required to produce is one whose production the Commissioner is entitled to require. Where a notice is addressed to a taxpayer who is required to produce documents which relate to his own income or assessment, the very description of the documents (for example, 'your books of account') may be enough to show that the notice is within the power conferred by the section. Where however the notice is addressed to one person, requiring him to produce the documents of another, the notice must show that those documents relate to the income or assessment of a particular person, who must be identified.
The Full Court of the Federal Court applied those observations in Pyneboard at 374, explaining at 375 that the requirement that a notice disclose the authority's entitlement to require the recipient to furnish information would not be satisfied "unless it appears from the notice that the information or documents sought are information or documents 'relating' to one or more 'matters' of a kind described in the subsection" (in that case s 155 of the Trade Practices Act 1974 (Cth) (TP Act)).
In the context of s 191 of the POEO Act, the matter must be one relating to the EPA's "responsibilities or functions under [the POEO Act]". Section 184 sets out the purposes for which powers under Ch 7 may be used, expressed in broad and general terms. Section 195(1) elucidates why par 2 of the Notice was expressed the way it was.
Eastern Creek's submission that the Notice failed to identify the matter with which it was concerned is unrealistic. The Notice (extracted in full in [16] above) stated its purpose on the first page. The reason why the Notice was issued could not be clearer. The purpose the Notice was issued was also reinforced by Recital C in the "Background" section and under the heading "Matters to which this Notice Relates".
It cannot seriously be suggested that the EPA does not have jurisdiction to investigate risks to the environment and to human health of the application of MWOO. Under s 184 of the POEO Act, powers under Ch 7 may be exercised to obtain information or records for purposes connected with the administration of the POEO Act and generally for administering the POEO Act and protecting the environment.
The next requirement is that a notice sufficiently discloses the necessary relationship between the information sought and the matter in respect of which it is sought, per D'Anastasi at [43]. It is plain on the face of the Notice that the 15 categories of information requested are relevant to assessing the risks to the environment and human health.
The two cases relied upon by Eastern Creek offer no assistance and are very far removed from the facts of this case. In D'Anastasi the "matter" the subject of the notice was an alleged contravention and the information sought could not be related to the possible contravention of the offence identified in the notice. The notice did not identify any contravention or possible contravention. As Young JA said at [50], although recital C [of the notice] dealt with a particular set of incidents which occurred between 26 February and 3 March 2010, many of the questions related to happenings before and after that period. As Young JA made plain at [59], the matter was not sufficiently identified by merely saying that the department was investigating the suspected misuse of pesticides.
In contrast, there is nothing to suggest that any of the paragraphs of the Notice, and in particular par 1(j) of the Notice, were not related to an investigation of the potential risks to the environment and human health of land applying MWOO, where that MWOO was the subject of the Exemption and the Order.
In Zhang, a notice which specified the matter as "the over-excavation" of a nominated property was uncertain and unclear. That much may be accepted. However, it does not offer any illumination in resolving the question of whether an investigation into potential risks to health and the environment of applying MWOO to land is insufficiently precise.
To the extent that Eastern Creek seeks to manufacture ambiguity by calling into question the meaning of "land applying [MWOO]", Young JA said in D'Anastasi that "the courts must not be too 'precious or hypercritical' about the form of the notice so long as it is clear" (at [47]). The Notice itself is clear, particularly when regard is had to the categories of information sought (for example, par 1(c) seeks information on the "dates that MWOO was applied to land"). In any event, the Exemption itself uses the expression "land apply". Even if there was any ambiguity, it is cast aside when regard is had to the context in which the Notice was issued.
The context as summarised in the affidavit of Dr Prifti in [24]-[32] above establishes that it was abundantly clear that the EPA was seeking information about where and when MWOO had been applied, and the characteristics of that MWOO, so as to be able to answer the questions of relevant stakeholders (including farmers) about environmental and health risks. As the Full Court of the Federal Court held in Melbourne Home at 176, "the terms used in notices will ordinarily take their meaning from the commercial circumstances in which the notices are given". This proposition was expressly approved by Fisher and French JJ in SA Brewing at 369.
In Hardie Holdings at [41], reliance was placed on Pyneboard for the proposition that the words of a notice must be read reasonably in their context, and the context includes the circumstances in which it is given. The EPA is not seeking to supplant the words used in the Notice with extraneous background material, rather the words that are used in the Notice must be construed in light of what the parties understood those words to mean.
Eastern Creek's suggestion that the Notice failed to specify how the land application of MWOO posed a risk to the environment or human health should also be rejected. Firstly, the putative risks must be read in the context of the Order which is expressly referred to in the Notice. Secondly, as confirmed in Melbourne Home, it is appropriate to construe the Notice in its broader context, being the dialogue between the EPA and Eastern Creek from August 2018 (see [25] and following above). That context made it clear that the EPA was investigating the risks identified in the TAC Report and collecting information in order to answer the inevitable questions that would be raised by various stakeholders, including farmers, regarding the risks of MWOO applied to their land.

Severance

To the extent that it is suggested that subpar (o) goes wider than investigating MWOO because it only refers to "organic outputs", the EPA submitted it could be severed because it does not distort the character of the Notice and, in accordance with s 32 of the Interpretation Act 1987 (NSW), the Notice, which is an instrument, should be read so as to preserve its validity. The severance of an invalid portion of an instrument was considered permissible provided the residue did not operate in a manner wholly different from the original document in Mailey v Sutherland Shire Council (2017) 226 LGERA 188; [2017] NSWCA 343 at [37] per Preston CJ (with Macfarlan and Meagher JJA agreeing). There is no discernible intention that the Notice is to operate "as a whole or not at all" (per Attard v Water Board (Supreme Court of New South Wales, Hodgson J, 16 November 1995, unrep).

Notice invalid

Eastern Creek submitted in [34] above relying on Selby v Pennings and Benedict that the onus of proving the validity of the Notice is borne by the EPA. The EPA did not disagree. I will proceed on that basis. I note that Eastern Creek was a processor of MWOO under the now revoked Order. The now revoked Exemption applied to consumers of MWOO.
Section 184 identifies the powers which can be exercised under Ch 7, "Investigation", of the POEO Act, and these are expressed widely including (b) for obtaining information or records related to administering the Act and (c) generally for administering the Act and protecting the environment. The Notice is issued pursuant to s 191(1) of the POEO Act which enables a notice to be issued by the EPA requiring the production of information or records "in connection with any matter relating to its responsibilities or functions under the Act". The terms of the Notice the subject of both charges are set out in full above in [16].
Under the heading "Why is the EPA writing to you", the Notice states that the EPA "has been undertaking an investigation into the potential risk to the environment and human health of land applying mixed waste organic outputs (MWOO)". Under the heading "Background", it is stated that Eastern Creek is the holder of an EPL which authorises the carrying out of activities at the Premises; that Eastern Creek "receives and processes mixed putrescible waste at the premises to produce an output that is applied to land", which is processed and produced to the specifications and requirements of the Order; and that the EPA "is investigating the potential risk to the environment and human health of land applying MWOO".
The purpose for which the Notice was issued is stated as being that the EPA is "responsible for the administration and enforcement of the [POEO] Act and the [Waste Regulation]" and that the EPA may require a person to furnish information or records (or both) as it requires by a notice issued under s 191 of the POEO Act in connection with any matters relating to the EPA's responsibilities or functions under the POEO Act and the Waste Regulation.
Under the heading "Matters to which this notice relates", the Notice states that the EPA is "investigating the potential risk to the environment and human health of land applying mixed waste organic outputs under the [POEO] Act and [Waste] Regulation from the Premises". Under the heading "Requirement to provide information and/or records", the Notice required Eastern Creek to provide information and/or records for the specified period in respect of the "exact locations of each MWOO application site - property names and addresses, paddock locations and plot identification"; the dates that MWOO was delivered and applied to land at each "application site"; the total tonnages of MWOO delivered to each application site; the "[a]pplication rates of MWOO applied on every individual paddock at each application site"; a description of the land use for each application site; the contact details of the land owner and/or land manager for each application site, each secondary supplier involved in the supply of MWOO and all companies or persons that applied MWOO to land at each application site; all test data of MWOO produced at the Premises, including characterisation and any other additional sampling and testing; a copy of the sampling plan and statement of compliance required to be provided to each consumer under the Order; and a copy of the statement of compliance and test data required to be provided by each consumer under the Exemption (Notice pars 1(a)-(n)). The Notice also required the production of all of the above information and records in relation to organic outputs from the Premises held prior to the commencement of the Exemption in 2010 (Notice par 1(o)).
Paragraph 2 of the Notice states that Eastern Creek did not have to furnish any record unless it was in Eastern Creek's possession or was in Eastern Creek's power to obtain lawfully. Paragraph 3 states that the "information and/or records must be provided in writing with all data presented in electronic spreadsheets, unless otherwise stated".
The parties have relied on different authorities to support their respective approaches. D'Anastasi and Zhang, relied on by Eastern Creek, considered notices issued under s 193 of the POEO Act and s 118BA of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) respectively, in which the Court of Appeal and this Court held that the notices in question did not specify the matter in relation to which information was sought. Section 193 is in similar terms to s 191, as is s 118BA of the EPA Act. In D'Anastasi the relevant notice required records relating to the use or application of pesticides at premises between three specified periods in 2009 and 2010 and asked a range of questions concerning the premises including pest management and the handling of pesticides inter alia. Young JA, (Campbell JA and Sackville AJA agreeing) considered whether the notice fairly indicated to the addressee the matter within the responsibilities and functions of the regulatory authority about which the officer required information. Young JA identified numerous principles citing Pyneboard where the Full Federal Court ruled that a notice must identify the information or documents sought relating to one or more matters of a kind described in the legislation about which the giver was entitled to serve the notice. SA Brewing at 370 was also cited: … the description of the relevant 'matter' must go beyond a mere assertion that it constitutes or may constitute a contravention of some identified section. The notice must disclose the necessary relationship between the information sought and the matter in respect of which it is sought. This requires a sufficient description of the 'matter' to enable the relationship to be discerned.
Pyneboard at 375 and other cases were also cited to the effect that courts must not be too "precious or hypercritical" about the form of a notice so long as it is clear (at [47]). Young JA (Campbell JA and Sackville AJA agreeing) at [54] acknowledged that in an investigation a notice "has to be a tad vague" but stated that this did not prevent the notice from telling the recipient that the EPA was investigating the misuse of pesticides in baits. Young JA concluded at [55] that the notice failed the test of validity as it did not indicate to the addressee the matter with which it was concerned. Sackville AJA (Campbell JA agreeing) also concluded that the notice did not comply with s 193(1), stating at [108]: There was nothing in the material before the Land and Environment Court to indicate the "matters" in connection with which it was necessary or appropriate to seek information relating to the period between 1 July 2009 and 2 March 2010, a period of up to eight months before the apparent poisoning of the birds. What was the "matter", for example, in connection with which the appellant was asked whether any measures had been taken during that period to eradicate, manage or otherwise mitigate the effect of pests without using any pesticides? Similarly, what was the "matter" in connection with which the appellant was asked whether any person used, applied or otherwise dealt with pesticides during the period between 3 March 2010 and 1 July 2010?
In Zhang Preston CJ concluded that a notice to attend and answer questions under s 118BA of the EPA Act failed to identify the matter in relation to which questions were to be asked, there possible excavation without development consent. At [118]-[120] Preston CJ said: 118. The Notice was, however, required to identify the matter in relation to which Mr Ferguson was required to answer questions. The Notice purported to identify the matter as being "the over excavation of 8 Haughton Street, Linley Point". However, such identification is not clear or certain. In terms, Mr Ferguson is told he is required to answer questions only in relation to "over excavation" and not "excavation" of 8 Haughton Street, Linley Point. What does "over excavation" mean? From what point or points is the excavation to be measured? The notion of over excavation suggests that there is some reference point or standard delineating the limits of excavation, such that any excavation beyond that reference point or standard will be "over excavation". But what is the reference point or standard that should be used to measure the excavation of 8 Haughton Street, Linley Point so as to determine whether there has been over excavation? 119. The failure of the Notice to answer these questions left the identification of the matter in the Notice uncertain and unclear. … 120. I would assume that the Council intended that the reference point to determine whether there was "over excavation" is the development consent in force at the time that excavation was undertaken on the land. But this is not stated in the Notice. The identification in the Notice of the matter needs to be sufficiently clear and certain in order for it to be valid. This was also the defect in the notice in D'Anastasi v Environment, Climate Change and Water (NSW). The lack of proper identification of the matter in the notice in that case led to the Court of Appeal concluding that the notice was invalid.
In Hardie Holdings, notices were issued to the applicants under s 36 of the Native Vegetation Act 2003 (NSW) (NV Act) requiring them to produce information and documents described in the notices, namely: (i) all documents to or from the applicants relating to a specified area of land near Cessnock (the land), including but not limited to correspondence, emails, contracts, receipts, maps and diary notes inter alia; (ii) all documents relating to vegetation management works on the land including clearing, slashing and mulching of vegetation, including records of machinery operating on the land, instructions provided to employees, photographs, plans and maps inter alia; and (iii) answers in writing to several questions posed in the notice to do with the applicants' staff and operations. The documents and information sought were not limited to any particular period of time, as noted at [29].
The applicants claimed the notices were not authorised, were issued for an improper purpose and were thus extraneous to the power under the NV Act, and were too wide and oppressive, therefore being ultra vires, meaning they should be declared invalid and of no effect. At [24] Lloyd J held that the applicants' submission that the notices were issued for an improper purpose failed. Lloyd J further held at [41], applying Pyneboard at 375 for the proposition that the words of a notice must be read reasonably in their context, including the circumstances in which it is given, that the notices were not oppressive or in excess of the power under s 36 of the NV Act. At [44], it followed that the applicants' claim for declaratory and consequential relief was refused.
The EPA submitted that D'Anastasi and Zhang can be distinguished as they addressed different circumstances, one a potential breach of the Pesticides Act 1999 (NSW) and one a notice to a third party concerning an excavation which was not approved under the EPA Act.
While their facts are different, they are cases which emphasise the importance of identifying the matter which a notice is purporting to address.
The vital question is whether the information sought is capable of being properly regarded as related to the matter stated in the notice as that being investigated (D'Anastasi at [86]).
The EPA relied on decisions in the Federal Court of Melbourne Home and parts of Pyneboard which considered s 155 of the TP Act, a wide investigatory power exercised when there is reason to believe that a person is capable of furnishing information relating to a matter that may constitute a contravention of that Act. In Melbourne Home the Full Court of the Federal Court held that the terms of the notice could take their ordinary meaning from the commercial circumstances in which the notice was given. To similar effect in Pyneboard it was held that uncertainty and ambiguity did not invalidate a s 155 notice unless it could not reasonably be given any meaning. Essentially the EPA relies on these trade practices cases to submit that the somewhat lengthy circumstances outlined in Dr Prifti's affidavit in [25]-[32] above concerning discussions and correspondence with Eastern Creek from August 2018 can be considered as relevant context and enables understanding of the circumstances of the Notice issued on 24 September 2018 by Eastern Creek.
Ultimately each case must be decided on its own facts. The Notice is unlike those in D'Anastasi, Zhang and Hardie Holdings in which potential contraventions of an Act were being investigated, and the findings relied on were addressing that context. The Notice is to aid in an investigation of potential risks to human health and the environment of land applying MWOO. Essentially that is all the Notice says.
I consider the statement of the EPA in its solicitor's letter dated 22 June 2020 set out above in [23] that a notice should be considered on its face, citing SA Brewing, D'Anastasi and Aurora Construction Materials Pty Ltd v Victorian WorkCover Authority [2018] VSCA 165 at [83]-[84] per Kaye JA (with Tate JA agreeing), is generally the correct approach. Failure to comply with a notice issued under s 191 is a criminal offence under s 211 of the POEO Act. It is important that a notice therefore comply with the statutory regime informed in this case by Court of Appeal authority in D'Anastasi. I should note that the arguments the EPA has made in this case that the parties' dealings and correspondence before the Notice was issued can inform understanding of the Notice were not considered in D'Anastasi. I do not consider that undermines the application of D'Anastasi.
If the EPA's contextual evidence is put to one side, the Notice must be construed on its face. The background and matter are stated in very broad terms and do no more than set out the EPA's wide responsibilities under the POEO Act, identify the Order and Exemption and state the EPA is investigating the potential human health and environmental risks of that application of MWOO to land. I agree with Eastern Creek that it does not specify in any meaningful way the matter the subject of the Notice for the purposes of s 191. The phrase "land applying" is unclear, as submitted at [37]-[38], amounting to more than a "precious or hypercritical" criticism of the Notice.
If it is relevant to consider surrounding circumstances, Eastern Creek made further detailed submissions, which I accept, about why the contextual events relied on by the EPA did not elucidate the terms of the Notice, summarised above at [46]-[49]. In particular, the TAC report was provided on 25 October 2018, well after the Notice was issued on 24 September 2018.
These contextual events are not overcome by the EPA's reliance on the terms of the Order which applied to Eastern Creek described in [8]-[10] above, which includes in the Notes references to a research program. The EPA relied on the likely inference that Eastern Creek was well aware of the Order as a basis to argue that Eastern Creek was aware of the relevant context for the Notice. That Eastern Creek was very likely to be aware of the now revoked Order does not overcome the absence of any relevant detail in the Notice. The Exemption, which applied to consumers of MWOO, is also set out above. The same observation applies to it.
Other cases relied on by Eastern Creek are apposite. In Johns v Connor the applicant received a notice under s 19 the ASC Act requiring him to appear before the respondents for examination. The notice described the matter under investigation as "the affairs of [the company]" over a specified period of time. Lockhart J held at 12 that in its ordinary meaning, the word "affairs" in relation to a corporation includes the activities, business or concerns of the corporation. A notice issued pursuant to s 19 of the ASC Act must generally hint at the matter to be investigated, at 13. This will generally, although not always, require the statement of the possible offence being investigated with reference to the statute. It is not sufficient for a notice issued under s 19 of the ASC Act to simply state that it is in relation to an investigation into a company and the temporal boundaries of that investigation, at 12-13. The notice was declared invalid, at 478.
In MacDonald v Australian Securities Commission, the Australian Securities Commission (ASC) was investigating a suspected breach of the ASC Act by the applicants' company. The ASC served notices on the applicants under s 20 of the ASC Act seeking a detailed list of documents "relating to the affairs of [the company]". Davies J held that the word "affairs" is an extremely wide term and its use in relation to the company to describe the material which was sought was too wide (citing Johns v Connor, Commissioner of Taxation v ANZ inter alia) at 470-471. Her Honour further held at 472 that the notices did not state the nature of the matter to which the ASC's investigation related. The notices were found to be invalid and were set aside, at 15.
These cases confirm that a broad inquiry is unlikely to be sufficient to render a notice seeking information and records in this kind of statutory regime to be valid. I agree with Eastern Creek that the Notice here is impermissibly wide in scope and does not state in any useful way the nature of the matter to be investigated.
While the EPA submitted that the items of information and/or records sought made it obvious why these were sought, that does not assist the EPA for at least two reasons. Firstly, that is a "bootstraps" argument and is not a substitute for the Notice adequately identifying the matter about which information and records are sought. Secondly, the EPA submitted that as the records sought were required to be maintained under the Order in any event, the purpose of seeking them would be clear to Eastern Creek. That is not the case as identified by Eastern Creek in [52] above.
Of the 15 items sought, seven were not required to be kept by cl 4.9 of the Order, as identified above in [51]. The Order required records to be kept for six years, consistent with reg 94 of the Waste Regulation, whereas the Notice seeks eight years of records or information. The last category, par 1(o) in the Notice, is quite open ended, seeking records unrelated to the Order from many years before 2010. The broad scope of the information sought beyond that required by cl 4.9 does highlight the difficulty for the recipient to understand the purpose of what is required. That the Notice repeats what is otherwise in s 195 concerning records, to the effect there is no obligation to provide these if not in their possession or power to obtain lawfully, does not assist in construction of the Notice.
For a combination of reasons, I agree with Eastern Creek that the Notice fails to indicate the matter in connection with which it was necessary or appropriate to require production of the information and records sought. Severance of subpar (o) as the EPA suggested will not "cure" the Notice.
I consider the EPA has not discharged its onus of proof of demonstrating that the Notice is valid.
It is unnecessary to consider the double jeopardy ground in the two notices of motion given my finding above.

Costs

Eastern Creek submitted that if it is successful, the Court does have power to award costs under s 257C of the CP Act. The discretion to award costs in s 257C is enlivened if the matter is either dismissed or withdrawn. Eastern Creek accepts that the factors in s 257D need to be considered in the Court's exercise of discretion under s 257C. The EPA submitted that there is no power to order costs on a motion, citing Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204 at [98]-[99] per Leeming J. Section 257C cannot be read in isolation but must be read in light of the limitation in s 257D so that there must be satisfaction on the Court's part of an element of some kind of impropriety. The parties agreed that costs must be dealt with separately.

Relief

Eastern Creek submitted that the summonses should be dismissed. The EPA submitted that if the Court finds in favour of Eastern Creek, the summonses should not be dismissed, rather the Court should make findings giving the EPA the opportunity to consider whether to withdraw the proceedings. Such a course preserves the EPA's appeal right.
I will discuss appropriate relief and costs further with the parties before making any final orders. A timetable for doing so will be discussed with the parties.

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: 23 December 2020

Australian Securities Commission Act 1989(Cth)ss 19, 20

Native Vegetation Act 2003(NSW)s 36

Environment Operations (Waste) Regulation 2014(NSW)

Environment Operations Act 1997(NSW)ss 3, Ch

Trade Practices Act 1974(Cth)s 155

Criminal Procedure Act 1986(NSW)ss 247G, 257C, 257D

(2007) 151 LGERA 373

(1998) 102 LGERA 253

At a glance

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