Environment Protection Authority v Fair

Land and Environment Court (NSW)|2024-11-13|Before: Preston CJ

Waste tyres are stored at storage facilities

Mr Fair has caused or permitted the storage of waste tyres at four properties in the Riverina region of New South Wales. The four properties are 27 Jarick Way, Jindera (Jarick Way), 11-13 Stockwell Road, Jindera (Stockwell Road), 111 Catherine Crescent, Lavington (Catherine Crescent) and 139 Wytarra Drive, North Albury (Wytarra Drive). A storage facility is operated at each of the properties by different operators, being Leading Property Group Pty Ltd at Jarick Way, Ian Ritchie Real Estate at Stockwell Road, CCS Storage Pty Ltd at Catherine Crescent, and National Storage (Operations) Pty Ltd (National Storage) at Wytarra Drive.
Mr Fair entered into a storage agreement with the operator of each storage facility entitling him to store goods in each space allocated to him. The agreements with two of the operators were in the form of the Australian Standard Self Storage Agreement, while the agreements with the other two operators were in similar terms set by the storage facility operator. Under all of the agreements, the storer is given the right to store goods in the space allocated to the storer by the operator of the storage facility upon payment of certain fees, including a storage fee. The storage fee is an amount per week or per month for the period of storage of goods in each allocated space. The storage fee set under the relevant storage agreement for each space allocated to Mr Fair was $165.12 per month for Jarick Way, $160 per month for Stockwell Road, $55 per week for Catherine Crescent, and $268 per month for Wytarra Drive.
The allocated spaces varied between each storage facility. For Jarick Way, the allocated spaces were three shipping containers on the property, known as Container 2, Container 3 and Container 4. For Stockwell Road, the allocated spaces were two storage sheds, essentially garages in a long building on the property, known as Shed 34 and Shed 43. For Catherine Crescent, the allocated spaces were two shipping containers on the property, Container 44 and Container 154. For Wytarra Drive, the allocated spaces were two storage units, again essentially garages in a long building on the property, known as Shed B024 and Shed B015.

The legality of the storage of the waste tyres

The EPA contended that Mr Fair's conduct in causing or permitting the storage of waste tyres in each allocated space at each storage facility was unlawful - but unlawful by what legal standard? In bringing these civil enforcement proceedings, the EPA has relied on two provisions of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act), s 48(2) and s 142A(1). The first provision, s 48, makes it an offence for a person who is an occupier of premises at which a scheduled activity is carried on not to be a holder of an environment protection licence that authorises that activity to be carried on at those premises. One of the scheduled activities specified in Schedule 1 of the POEO Act is storing more than 5 tonnes of waste tyres or more than 500 waste tyres at premises. The EPA contended Mr Fair breached this provision by storing more than 500 tyres at each of the storage facilities at the four properties. The second provision, s 142A, makes it an offence for a person to pollute land. The EPA contended Mr Fair polluted land by storing more than 500 waste tyres in the storage units at the storage facilities at two of the four properties.
The EPA sought orders declaring that Mr Fair breached those statutory provisions; remedying and restraining the breaches by Mr Fair removing all of the waste tyres from three of the properties (the tyres already having been removed from one of the properties); and remedying the breach with respect to one of the properties by compensating the storage facility operator for the costs it incurred in removing the tyres from that facility. The EPA also sought a range of other injunctive orders intended to prevent Mr Fair committing other offences against the POEO Act at any other property in New South Wales.
I have determined that the EPA has not established that Mr Fair breached s 142A of the POEO Act, as the tyres were stored wholly within enclosed storage units within buildings and not on the land itself, so did not pollute land, or s 48(2) of the POEO Act, except for a past breach with respect to one storage unit at one storage facility for a limited period of time. That past breach of s 48(2) has ceased, as all of the tyres have been removed from that storage facility. No order can therefore be made to restrain that past breach. Furthermore, the power to remedy the past breach does not extend to ordering Mr Fair to pay compensation to the storage facility operator who incurred costs in removing the tyres from that facility. None of the other injunctive orders sought by the EPA are within power or warranted in the circumstances.
At an interlocutory stage in the proceedings, by consent of the parties, the Court made interlocutory orders on 20 December 2023, including that Mr Fair, by a specified time, remove waste tyres from each of the four properties so that there were not more than 500 tyres at each property. Mr Fair has not complied with these orders, notwithstanding that he consented to doing so. Nevertheless, as the EPA has been unsuccessful in both establishing breach of the POEO Act and obtaining injunctive relief, these interlocutory orders should now be discharged. The proceedings should otherwise be dismissed with costs.

The alleged breach of s 48(2) of the POEO Act

Section 48(2) of the POEO Act creates an offence for a person who is the occupier of any premises at which a scheduled activity referred to in s 48(1) is carried on, not to be the holder of a licence that authorises that activity to be carried on at those premises: "(2) Offence A person who is the occupier of any premises at which any such scheduled activity is carried on is guilty of an offence, unless the person is, at the time that activity is carried on, the holder of a licence that authorises that activity to be carried on at those premises."
The scheduled activities to which s 48 applies are specified in s 48(1) to be activities where Schedule 1 indicates a licence is required for premises at which the activity is carried on. One of the activities indicated in Schedule 1 is waste storage, in cl 42 of Part 1 of Schedule 1. "Waste storage" is defined in cl 42(1) to mean "the receiving from offsite and storing (including storage for transfer) of waste." Clause 42(3) declares that the activity to which the clause applies is a scheduled activity in specified circumstances, one of which is: "(b) more than 5 tonnes of waste tyres or 500 waste tyres is stored on the premises at any time (other than in or on a vehicle used to transport the tyres to or from the premises)".
"Waste tyres" is defined in cl 50(1) of Schedule 1 to the POEO Act to mean "used, rejected or unwanted tyres, including casings, seconds, shredded tyres or tyre pieces."
Mr Fair received from offsite and stored in each of the allocated spaces at the storage facilities waste tyres. The sources of all of the waste tyres were not established. At least some of the waste tyres were sourced from tyre sale businesses in the Riverina region. Mr Fair, operating through his company, Carbon MF Pty Ltd, was paid by four business to remove waste tyres in the period immediately before and during the time when Mr Fair caused or permitted waste tyres to be stored at the storage facilities at the four properties. Insofar as the company was contracted and paid to remove waste tyres, the company may own those tyres. Insofar as Mr Fair personally was contracted and paid to remove waste tyres, he may own those tyres. But irrespective of the ownership of the waste tyres stored at the storage facilities, Mr Fair personally entered into the storage agreements and hence had and exercised the right to store the waste tyres in the allocated spaces at the storage facilities.
What is in issue, however, is whether Mr Fair stored more than 5 tonnes of waste tyres or 500 waste tyres on the premises at any time. The answer to this question depends on what were the relevant "premises" and whether Mr Fair was an "occupier" of those premises.
The term "premises" is defined in the Dictionary in Schedule 6 of the POEO Act as follows: "premises includes - (a) a building or structure, or (b) land or a place (whether enclosed or built on or not), or (c) a mobile plant, vehicle, vessel or aircraft."
An "occupier" of premises is defined to mean "the person who has the management or control of the premises." The two definitions thereby work together. The inquiry is to identify each premises of which a person has the management or control.
In Mr Fair's case, the premises of which he potentially had the management or control can only be each allocated space in which he had the right to store goods in accordance with the relevant storage agreement. These are the shipping containers or storage units earlier identified at each of the storage facilities. Insofar as Mr Fair had an exclusive right to store goods within an allocated space, he might be seen to have the management or control of that allocated space. The allocated space, however, was only the three-dimensional, internal space defined by the floor, walls and ceiling of the allocated shipping container or storage unit; it did not extend to include the shipping container or storage unit itself or the land on which the shipping container or storage unit was located. This means that each "premises" of which Mr Fair might be seen to be the occupier would only be the three-dimensional space on the inside of each allocated space of a shipping container or storage unit.
That three-dimensional, internal space might be a "place" in the definition of "premises", as that term is wide and can include a place whether enclosed or built on or not. But it might also fall within the terms of a "building" or "structure" in the definition of "premises" insofar as those terms include the internal space within the allocated space of a shipping container or storage unit. Whichever term within the definition of "premises" the internal space within the allocated space of a shipping container or storage unit might fall, that internal space can be seen to be "premises". And for so long as Mr Fair had a right under the relevant storage agreement to store goods in that allocated space - the premises - and thereby had the management and control of the premises, he could be seen to be the occupier of the premises.
In order for the offence against s 48(2) to be committed, however, a scheduled activity must be carried on at the premises at the time at which Mr Fair was the occupier of the premises. The relevant scheduled activity here is the storage of more than 5 tonnes of waste tyres or more than 500 waste tyres. It is necessary, therefore, to determine how many waste tyres were stored in the allocated spaces of the shipping containers and storage units at each storage facility during the time Mr Fair was entitled to store goods in, and hence was the occupier of, those allocated spaces.
The evidence in this respect is incomplete. For two of the four storage facilities, the EPA identified the number of tyres stored in all of the allocated spaces, whether shipping containers or storage units, at each storage facility, but not the number of tyres in each allocated space at each storage facility. For Jarick Way, the agreed Statement of Facts noted that on 6 September 2023, more than 600 waste tyres were counted in the three allocated shipping containers and on 13 February 2024, 626 waste tyres remained within those shipping containers. These counts of tyres were both made after Mr Fair ceased to be an occupier of the three shipping containers at the storage facility at Jarick Way. Mr Fair's right to store goods in the three shipping containers ceased when he failed to pay the storage fees under the storage agreement for Container 2 after 25 August 2023, Container 3 after 25 July 2023 and Container 4 after 26 July 2023. Nevertheless, if it is assumed that the number of tyres did not change after those dates until the first count on 6 September 2023, then all that the evidence established was that within all of the premises of the internal spaces of the three shipping containers, there were more than 600 tyres, but how many tyres were within each shipping container is unknown. Certainly, the evidence did not establish that there were more than 500 tyres in any one of the shipping containers.
For Stockwell Road, the agreed Statement of Facts noted that the EPA counted, on 13 September 2023, 1,008 waste tyres in both allocated storage sheds and on 12 February 2024, 929 waste tyres as remaining at the storage facility. The EPA's count on 12 February 2024 was not of the tyres in the two storage sheds allocated to Mr Fair, Shed 34 and Shed 43, but rather of the tyres in those two sheds and another storage shed not allocated to Mr Fair. The reason was that when the EPA counted the tyres on 13 September 2023, they removed the tyres from the two storage sheds allocated to Mr Fair, Shed 34 and Shed 43, but did not replace the tyres as they had found them. Instead, the EPA stored the tyres not only in Shed 34 and Shed 43 but also in another shed, Shed 102, which was never allocated to Mr Fair by the storage facility operator.
Both of these counts of tyres were after Mr Fair ceased to be an occupier of the storage sheds at the storage facility at Stockwell Road. Mr Fair's right to store goods in the two storage sheds ceased when he failed to pay the storage fees under the storage agreement on 12 August 2023. Nevertheless, if it is assumed that the number of tyres did not change after 12 August 2023 until the first count on 13 September 2024, then all that the evidence established was that within both of the internal spaces of the two storage sheds, there were 1,008 tyres, but how many tyres were within each storage shed is unknown. Arithmetically, at least one of the two storage sheds must have had more than 500 tyres, as it is not possible to divide 1,008 tyres into the two storage sheds and not have at least one storage shed having more than 500 tyres. However, the evidence did not establish which storage shed or sheds had more than 500 tyres. No finding can therefore be made that more than 500 tyres were stored in a particular storage shed at the time Mr Fair was an occupier.
For the other two storage facilities, the EPA did count the number of tyres in each allocated space. For Catherine Crescent, the agreed Statement of Facts noted that the EPA counted, on 3 October 2023, 608 waste tyres in both shipping containers allocated to Mr Fair and on 29 February 2024, 652 tyres as remaining at the storage facility. As happened at Stockwell Road, when the EPA counted the tyres on 3 October 2023, they removed the tyres from the two allocated shipping containers, Container 44 and Container 154, but did not replace the tyres as they found them. Instead, the EPA placed the tyres not only in Container 44 but also in another shipping container, Container 40, which was never allocated to Mr Fair by the storage facility operator, and did not place any tyres in Container 154. Mr Forrest, the EPA officer who counted the tyres on 3 October 2023, gave evidence (in his affidavit of 29 November 2023) that the number of tyres the EPA removed from Container 44 and stacked within Container 40 was 325 tyres and removed from Container 154 and stacked within Container 44 was 283 tyres.
Both of these counts were after Mr Fair ceased to be an occupier of the allocated shipping containers at the storage facility at Catherine Crescent. Mr Fair's right to store goods in the two shipping containers ceased when he failed to pay the storage fees under the storage agreement on 18 August 2023. Nevertheless, if it is assumed that the number of tyres did not change after 18 August 2023 until the count on 3 October 2023, then the evidence established that within both of the internal spaces of the two shipping containers, there were 608 waste tyres, which were distributed to be 325 tyres in Container 40 and 283 tyres in Container 154. Hence, the evidence did not establish that more than 500 tyres were stored in either of the shipping containers allocated to Mr Fair.
For Wytarra Drive, the agreed Statement of Facts noted that on 20 October 2023, the EPA counted 1,438 waste tyres in both storage units. This count was undertaken when the storage facility operator removed and disposed of the tyres on the default of Mr Fair in not paying the storage fees. Mr Forrest, the EPA officer who counted the tyres, gave evidence (in his affidavit of 29 November 2023) estimating the number of tyres in Shed B024 as 950 tyres and in Shed B015 as 488 tyres. This count was after Mr Fair ceased to be an occupier of the storage units at the storage facility at Wytarra Drive. Mr Fair's right to store goods in the two storage units ceased when he failed to pay the storage fees under the storage agreements for Shed B024 after 1 July 2023 and for Shed B015 after 15 July 2023. Nevertheless, if it is assumed that the number of tyres did not change after 1 and 15 July 2023 until the count on 20 October 2023, then the evidence established that Mr Fair stored more than 500 tyres in only one of the storage units, Shed B024, as there were 950 tyres in that shed, but less than 500 tyres in the other storage unit, Shed B015, as there were 488 tyres in that shed.
In result, the EPA has established on the evidence that the only premises of which Mr Fair was the occupier at the relevant time and at which the scheduled activity of storing more than 500 waste tyres was carried on, was one storage unit, Shed B024, allocated to Mr Fair at the storage facility at Wytarra Drive. The evidence did not establish that more than 500 waste tyres were stored in any of the other allocated spaces of shipping containers or storage units at the storage facilities at the four properties.
The EPA submitted that the term "premises" in s 48(2) of the POEO Act should be read collectively so as to include all of the allocated spaces at each of the storage facilities at each of the four properties. On the EPA's argument, Mr Fair was the occupier of four premises or four groups of premises: first, the three shipping containers at Jarick Way; second, the two storage sheds at Stockwell Road; third, the two shipping containers at Catherine Crescent; and fourth, the two storage units at Wytarra Drive. On this basis, the EPA submitted, it was sufficient for the EPA to have established that the total number of tyres in all of the allocated spaces at each storage facility was greater than 500 waste tyres. It mattered not that the number of tyres in each allocated space at each storage facility might be less than 500 waste tyres.
I disagree. The term "premises" is used in s 48(2) of the POEO Act to refer to the particular premises at which a scheduled activity is carried on. The relevant scheduled activity in this case is storing more than 5 tonnes of waste tyres or more than 500 waste tyres. Section 48(2) directs inquiry as to, first, the premises (as defined) at which that scheduled activity is alleged to be carried on and, second, the occupier of those premises. Here, Mr Fair could only be the occupier of premises of which he had a legal entitlement to exercise management or control. The only premises of which Mr Fair had a legal entitlement under a storage agreement to exercise management or control was the internal space of any allocated space of a shipping container or storage unit. The relevant storage agreement gave Mr Fair the right to store goods within that allocated space for so long as he paid storage fees. Under the storage agreement, Mr Fair had no management or control of the shipping container or storage unit itself or of the land on which the shipping container or storage unit was located. For example, Mr Fair could not relocate any shipping container to other land; paint, decorate or make any change to any shipping container or storage unit; use a shipping container or storage unit for any purpose other than storage of goods; or lease, licence or otherwise grant a right of occupation of any shipping container or storage unit to any other person.
Hence, the premises of which Mr Fair could be said to be an occupier could not be the shipping container or the storage unit in a building itself or the part of the land on which the shipping container or storage unit was located. Each premises was limited to the three-dimensional, internal space within each allocated space of a shipping container or storage unit at each storage facility. The inquiry for the purposes of s 48(2) is, therefore, restricted to whether the scheduled activity of storing more than 500 tyres was carried on at each of these premises of the internal space of each shipping container or storage unit.
There is no textual or contextual support in s 48 of the POEO Act for allowing an aggregation of premises. There can be no aggregation of the four properties at which Mr Fair stored tyres in the storage facilities at the properties even though each property, being an allotment of land, could be "premises" within the definition. That is not the relevant premises, of course, because Mr Fair did not have the management or control of the whole of each property and therefore could not have been the occupier of the whole of each property. But the point is that even if he were to have been the occupier of the whole property, it would not be legitimate to aggregate each property to form one premises or group of premises. The EPA accepted that aggregation of different properties, even if they be premises, could not be done. This is because the offence against s 48 requires the scheduled activity to be carried on at each premises, not at an aggregation of different premises. Equally, where the premises are the internal spaces of shipping containers or storage units, as is the case here, the offence against s 48 requires the scheduled activity to be carried on at each premises, not at an aggregation of different premises.
On this inquiry demanded by s 48 of the POEO Act, the only premises of which Mr Fair was an occupier and at which more than 500 waste tyres were stored was Shed B024 at the storage facility at Wytarra Drive. The period of time for which Mr Fair was the occupier of this premises was between 2 June 2023 and 1 July 2023. By s 48(2), Mr Fair was required to be the holder of an environment protection licence that authorised the scheduled activity of storing more than 500 waste tyres within the premises of Shed B024 during this period in which he was the occupier. The evidence established Mr Fair never held such a licence at any time. Hence, Mr Fair breached s 48(2) of the POEO Act between 2 June 2023 and 1 July 2023.
The evidence does not establish that Mr Fair breached s 48(2) of the POEO Act with respect to any other premises at the storage facilities at the four properties. On the evidence, no other single allocated space occupied by Mr Fair of a shipping container or storage unit at the storage facilities stored more than 500 waste tyres. Hence, the scheduled activity of storing more than 500 waste tyres was not carried on at any of these premises during the time Mr Fair was an occupier of these premises.
The breach of s 48(2) of the POEO Act with respect to the premises of Shed B024 at the storage facility at Wytarra Drive has ceased. The storage facility operator, National Storage, removed all of the waste tyres that had been stored in both storage units, Shed B024 and Shed B015, on 20 October 2023. From that date onwards, the scheduled activity of storing more than 500 tyres in any premises ceased. Mr Fair's breach of s 48(2) in fact ceased earlier, when he ceased to be the occupier of the allocated spaces of Shed B024 and Shed B015 upon failing to pay the storage fees under the storage agreement for Shed B024 after 1 July 2023 and Shed B015 after 15 July 2023. In these circumstances, the Court cannot make an order under s 252 of the POEO Act to restrain a breach that has already ceased, such as by ordering the removal of the tyres, as the tyres have already been removed.
Nevertheless, the EPA sought an order that it contended would remedy the past breach of s 48(2) with respect to the premises of Shed B024 at the storage facility at Wytarra Drive. This was an order that Mr Fair compensate National Storage for the costs it incurred ($15,071,10) in removing all of the tyres from the storage facility at Wytarra Drive. I find that such an order for compensation is not one that the Court has power to make under s 252(6) of the POEO Act. It clearly is not an order that restrains a breach. It also is not one that remedies a breach.
The breach in this case of s 48(2) of the POEO Act was committed by Mr Fair for a period of one month, whilst he was an occupier of the allocated space of Shed B024 at which the scheduled activity of storing more than 500 waste tyres was carried on. Mr Fair's breach of s 48(2) ceased in law when he ceased to be an occupier of the premises of Shed B024 on 1 July 2023 by failing to pay the storage fees for that shed. The storage of more than 500 tyres ceased on 20 October 2023 when all of the waste tyres were removed by the storage facility operator exercising its contractual rights under the storage agreement.
But that removal of all of the tyres by the storage facility operator, whilst a proper exercise of the contractual rights under the storage agreement, went beyond what was necessary to remedy the breach of s 48(2) of the POEO Act, which was only in respect of Shed B024 and not Shed B015, and then only to reduce the number of tyres stored in Shed B024 to be no more than 500 tyres, not to remove all of the tyres. The costs the storage facility operator incurred, therefore, were not for the purpose of remedying Mr Fair's breach of s 48(2) of the POEO Act, but rather were in exercise of its contractual right under the storage agreement to seize and dispose of the goods of a storer in default.
Moreover, an order that a person in breach of s 48(2) of the POEO Act pay compensation to a third party does not answer the description in s 252(6) of the POEO Act of being an order to "remedy" a breach of the POEO Act. Paying compensation does not remedy a breach of the POEO Act committed by the person in breach, but rather reimburses someone else for the cost they have incurred which has the effect of remedying the breach.
That the Court's power in s 252(6) to remedy a civil breach of the POEO Act is narrower than the Court's power to make orders remedying a criminal breach of the POEO Act is evidenced by the express powers the Court has under ss 246 and 247 of the POEO Act to order an offender to pay a person the costs and expenses incurred or compensation for the loss or damage suffered by the person in preventing or mitigating harm to the environment or loss or damage to property. The Court has no such express powers to remedy civil breaches.
If the storage facility operator wishes to be compensated for the costs it incurred in removing the tyres from the storage facility at Wytarra Drive, its remedy is to sue Mr Fair pursuant to its rights under the storage agreement for his breach of contract, not to be compensated by an order of the Court for Mr Fair's breach of s 48(2) of the POEO Act.
In these circumstances, the EPA has not established that Mr Fair breached s 48(2) of the POEO Act, other than for a limited period of time with respect to the one premises of Shed B024 at the storage facility at Wytarra Drive. With respect to that single breach, there is no order that can or should be made to remedy or restrain the breach.

The alleged breach of s 142A of the POEO Act

The second breach the EPA contended Mr Fair committed by storing waste tyres at the storage facilities at two of the four properties was of s 142A(1) of the POEO Act. That provision simply states: "A person who pollutes land is guilty of an offence." The act to "pollute land" is defined in s 142A(2) to include to "cause or permit any land to be polluted." To this definition is added the definition of "land pollution" and "pollution of land" in the Dictionary to the POEO Act: "land pollution or pollution of land means placing in or on, or otherwise introducing into or onto, the land (whether through an act or omission) any matter, whether solid, liquid or gaseous - (a) that causes or is likely to cause degradation of the land, resulting in actual or potential harm to the health or safety of human beings, animals or other terrestrial life or ecosystems, or actual or potential loss or property damage, that is not trivial, or (b) that is of a prescribed nature, description or class or that does not comply with any standard prescribed in respect of that matter, but does not include placing in or on, or otherwise introducing into or onto, land any substance excluded from this definition by the regulations."
Pursuant to paragraph (b) of this definition, cl 133 of the Protection of the Environment Operations (General) Regulation 2022 (NSW) prescribes certain matters: "(1) For the Act, Dictionary, the definition of land pollution or pollution of land, paragraph (b), the following matter is prescribed - (a) hazardous waste, (b) restricted solid waste, (c) more than 10 tonnes of asbestos waste, (d) more than 5 tonnes of waste tyres or more than 500 waste tyres. Note - Placing smaller amounts of asbestos waste or waste tyres on land may fall within the Act, Dictionary, the definition of land pollution, paragraph (a) and may also give rise to water pollution. (2) Matter referred to in subsection (1) is excluded from the Act, Dictionary, the definition of land pollution or pollution of land, if the matter is placed in or on, or otherwise introduced into or onto, land on which the matter was generated - (a) in accordance with an approved voluntary management proposal, management order or ongoing maintenance order under the Contaminated Land Management Act 1997, or (b) in accordance with a public positive covenant or restriction imposed under the Contaminated Land Management Act 1997, section 29, or (c) as part of category 1 remediation work carried out under State Environmental Planning Policy (Resilience and Hazards) 2021, Chapter 4. (3) In this section - hazardous waste, restricted solid waste and waste tyres have the same meanings as they have in the Act, Schedule 1."
The EPA contended, applying these definitions, that Mr Fair polluted land by placing more than 500 tyres in the allocated storage units at each of the Stockwell Road and Wytarra Drive properties. The EPA submitted that as the storage units were in buildings erected on those properties, and buildings are fixtures so as become part of the land, then the placing of tyres in the storage units involved the placing of tyres on the land on which the buildings were erected. This reliance on the buildings being fixtures was the reason for the EPA not contending that the placing of tyres in the allocated shipping containers at the Jarick Way and Catherine Crescent properties involved the pollution of land. The EPA accepted that the shipping containers were not fixtures, so that the placing of tyres in the shipping containers did not involve the placing of tyres on the land on which the shipping containers were located.
The EPA contended that Mr Fair placed 1,008 waste tyres on the land on which the building containing the allocated storage sheds was erected on the Stockwell Road property and 1,438 waste tyres on the land on which the building containing the allocated storage units was erected on the Wytarra Drive property. As these numbers of waste tyres are more than 500, the EPA submitted Mr Fair placed on land matter of a prescribed nature, thereby polluting land in breach of s 142A(1) of the POEO Act.
I disagree for two alternative reasons. My primary reason is that the placing of waste tyres in a fully enclosed storage unit within a building does not involve the placing of the tyres in or on, or otherwise introducing into or onto, the land on which the building is erected. Mr Fair placed the waste tyres wholly inside the allocated spaces of Shed 34 and Shed 43, which are essentially garages within a long building at the storage facility at Stockwell Road, and Shed B024 and Shed B015, which are also essentially garages in a long building at the storage facility at Wytarra Drive. Each building had a continuous concrete slab forming the floor of the building and a metal roof for the length of the building, and was divided into separate sheds by metal partition walls, with each shed having a lockable roller shutter door to access the shed. The storage of goods inside each shed within the building in accordance with the storage agreement involved placing the goods inside the shed in the building, but not placing the goods in or on or otherwise introducing the goods into or onto the land on which the building was erected.
The latter result does not transpire even if the building is considered to be a fixture for real property law. The term "land" in s 142A(1) of the POEO Act is not used in the real property law sense to include buildings on the land that might be fixtures so as to become a part of the land. Consider this example. A storage facility in urban areas might be a multi-storage building, with storage units on each of the storeys. The storage of goods in a storage unit on the uppermost storey, removed from the land by the intervening stories, cannot be considered to involve the placing of goods in or on, or otherwise introducing goods into or onto, the land on which the multi-storey building is erected. The goods have been placed in or introduced into a building, but not the land on which the building has been erected.
If this construction of "land" in s 142A(1) be incorrect, and the placing of the waste tyres inside the storage units in the building did involve the placing of the waste tyres in or on the land on which the storage units in the building are located, my alternative reason why this placing of the waste tyres in the storage units did not breach s 142A(1) of the POEO Act is that the number of tyres placed in the storage units did not exceed 500 tyres, except for Shed B024. The EPA relied, to establish the breach of s 142A(1), on Mr Fair placing in or on land matter that is of a prescribed nature, description or class. That matter was more than 5 tonnes of waste tyres or more than 500 waste tyres. If the land in or on which that prescribed matter has been placed is the land immediately underneath the storage unit in which the waste tyres have been placed, then the area of that land is defined by the area of the storage unit.
In this circumstance, in order for Mr Fair to have breached s 142A(1) of the POEO Act, he needed to have placed more than 500 waste tyres in a storage unit in order to be considered to have placed more than 500 waste tyres in or on the land immediately underneath the storage unit. On the evidence, the only storage unit, and hence the only land underneath the storage unit, in or on which Mr Fair placed more than 500 waste tyres was Shed B024 at the storage facility at Wytarra Drive. On 20 October 2023, the EPA counted 950 tyres being removed from Shed B024. If the storage of this many waste tyres in Shed B024 can be considered to involve the pollution of land in breach of s 142A(1), then Mr Fair was in breach until the tyres were removed from the shed and hence the land on 20 October 2023. The breach thereupon ceased. No order is necessary or appropriate to be made to restrain or remedy this past breach of s 142A(1).

The orders to be made

The EPA has not established that Mr Fair breached s 48(2) of the EPA Act by storing waste tyres in the allocated spaces at the storage facilities at Jarick Way, Stockwell Road or Catherine Crescent. The EPA has established that Mr Fair breached s 48(2) of the EPA Act by storing waste tyres in the allocated space of Shed B024, but not of Shed B015, at the storage facility at Wytarra Drive. That breach was for a limited time and has ceased. All of the waste tyres stored by Mr Fair at the storage facility at Wytarra Drive were removed on 20 October 2023. No order to remedy or restrain that past breach is necessary or appropriate.
However, the Court does have power, under s 20(2) of the Land and Environment Court Act 1979 (NSW), to make a declaration that Mr Fair did breach s 48(2) of the POEO Act by storing more than 500 waste tyres in Shed B024 at the storage facility at Wytarra Drive for a limited period of time. The Court has a discretion whether to make a declaration of breach: Great Lakes Council v Lani (2007) 158 LGERA 1; [2007] NSWLEC 681 at [19]-[25] and Director-General, Department of Environment, Climate Change and Water v Venn (2011) 210 LGERA 300; [2011] NSWLEC 118 at [278]-[283] being illustrative of decisions not to make and to make a declaration respectively. In the circumstances of this case, I consider it is appropriate to make a declaration of this past breach of s 48(2) with respect to the storage of waste tyres in Shed B024 at the storage facility at Wytarra Drive.
The EPA has not established that Mr Fair breached s 142A(1) of the POEO Act by placing waste tyres in the enclosed storage units in the buildings at the storage facilities at Stockwell Road and Wytarra Drive. That action did not involve the pollution of the land on which the buildings containing the storage units were erected. In the alternative, if the placing of waste tyres in the storage units could be seen to involve the placing of the tyres in or on the land on which the buildings were erected, the only land in or on which Mr Fair placed the prescribed matter of more than 500 tyres was the land underneath Shed B024 at the storage facility at Wytarra Drive. Any breach of s 142A(1) occasioned by that action ceased on the removal of the tyres from the land on 20 October 2023. No order to remedy or restrain that past breach is necessary or appropriate. I do not consider that a declaration as to that past breach should be made as my primary finding is that there was no breach of s 142A(1) of the POEO Act.
These findings that Mr Fair has not breached s 48(2) or s 142A(1) of the POEO Act, except for the past breach of s 48(2) with respect to one storage unit at the storage facility at Wytarra Drive, and that no order to remedy or restrain a breach of s 48(2) or s 142A(1) of the POEO Act should be made, mean that it is appropriate to discharge the interlocutory orders made by the Court, with the consent of the parties, on 20 December 2023. One of the interlocutory orders required Mr Fair to remove waste tyres from the storage facilities at the four properties such that there were less than 5 tonnes of waste tyres or less than 500 waste tyres remaining at those properties. As I have noted earlier, all of the waste tyres at the Wytarra Drive property have already been removed. Mr Fair has not, however, removed the waste tyres at the other three properties in accordance with the consent orders of 20 December 2023. Other interlocutory orders made on 20 December 2023 restrained Mr Fair from receiving from offsite and storing or placing more than 5 tonnes of waste tyres or more than 500 waste tyres at not only the four properties but also two other properties.
As the legal basis of breach of the POEO Act that justified the making of the interlocutory orders has now been found not to be established, all of the orders made on 20 December 2023 should be discharged. The discharge will operate from the date the Court gives judgment.
Costs of civil enforcement proceedings in Class 4 of the Court's jurisdiction follow the event. The event in this case is that the EPA has been largely unsuccessful in establishing that Mr Fair breached s 48(2) and s 142A(1) of the POEO Act and in obtaining orders to remedy or restrain any breach, with the exception of the Court making a declaration of one past breach of s 48(2) of the POEO Act. In civil enforcement proceedings, an applicant must not only prove the statutory breach but also obtain substantive relief remedying the breach: see Liverpool City Council v Roads and Traffic Authority and Interlink Roads Pty Ltd (1991) 74 LGRA 265 at 277-281 and Liverpool City Council v Roads and Traffic Authority and Interlink Roads Pty Ltd (No 2) (1992) 75 LGRA 210 at 211-213. Not to do both is not to succeed in the litigation, justifying an order that the unsuccessful applicant pay the costs of the successful first respondent.
The State of New South Wales was joined as a second respondent on 17 October 2024 for reasons that do not now need to be stated. The State took no active part in the proceedings. No order for costs should be made for or against the State.
The Court makes the following orders: 1. Declare that Mr Mark Fair breached s 48(2) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) by being the occupier between 2 June 2023 and 1 July 2023 of a storage unit at a storage facility at 139 Wytarra Drive, North Albury, in which more than 500 waste tyres were stored, without being the holder of a licence under the POEO Act that authorised that activity to be carried on at those premises. 2. Discharge, from the date of these orders, the orders made by the Court by consent of the applicant and first respondent on 20 December 2023. 3. Otherwise dismiss the proceedings. 4. Order the applicant to pay the first respondent's costs of the proceedings.

Amendments 22 November 2024 - Amendments made to Representation on coversheet. 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: 22 November 2024

Environment Operations Act 1997(NSW)

Environment Operations (General) Regulation 2022(NSW)

(2011) 210 LGERA 300

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Cases Cited (4)