Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie - [2018] NSWLEC 99 - NSWLEC 2018 case summary — Zoe

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Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie

[2018] NSWLEC 99

Land and Environment Court (NSW)|2018-02-23|Before: Pain J

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Land and Environment Court (NSW)

Decision date

2018-02-23

Before

Pain J

Source

Original judgment source is linked above.

Judgment (142 paragraphs)

[1]

c Dunlop Ltd (1990) 170 CLR 249; [1990] HCA 41 Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15 Commonwealth v Baume (1905) 2 CLR 405; [1905] HCA 11 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 CSR Ltd v Environment Protection Authority (2000) 110 LGERA 334; [2000] NSWCCA 373 Director of Public Prosecutions v Sadler [2013] NSWSC 718 Dowling v Bowie (1952) 86 CLR 136; [1952] HCA 63 Environment Protection Authority v Foxman Environmental Development Services [2015] NSWLEC 105 Environment Protection Authority v Hardt (2006) 148 LGERA 61; [2006] NSWLEC 438 Environment Protection Authority v HTT Huntley Heritage Pty Ltd (2003) 125 LGERA 332; [2003] NSWLEC 76 Environment Protection Authority v Terrace Earthmoving Pty Ltd & Page [2012] NSWLEC 216 Environment Protection Authority v Terrace Earthmoving Pty Ltd (2013) 84 NSWLR 679; [2013] NSWCCA 180 Environment Protection Authority v Terrace Earthmoving Pty Ltd (No 3) (2016) 217 LGERA 222; [2016] NSWLEC 50 Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79 Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157 Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180 Griffiths v The Trustees of the Parliamentary Contributory Superannuation Fund [2012] NSWCA 231 Hardt v Environment Protection Authority (2007) 156 LGERA 337; [2007] NSWCCA 338 Harrison v Melhem (2008) 72 NSWLR 380; [2008] NSWCA 67 House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 IW v City of Perth (1997) 191 CLR 1; [1997] HCA 30 James Hardie Industries NV v Australian Securities and Investments Commission [2009] NSWCA 18 MWJ v The Queen (2005) 80 ALJR 329; [2005] HCA 74 Office of Fair Trading v El Homsi (2009) 74 NSWLR 443; [2009] NSWSC 282 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Pullen v Smedley [2017] NSWSC 1721 Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305 Shannongrove Pty Ltd v Environment Protection Authority (2013) 84 NSWLR 668; [2013] NSWCCA 179 Valuer-General v Fivex Pty Ltd (2015) 206 LGERA 450 [2015] NSWCA 53 Vines v Djordjevitch (1955) 91 CLR 512; [1955] HCA 19 Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26 Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245 Texts Cited: Macquarie Dictionary Online (2017) Pearce & Argument, Delegated Legislation in Australia (4th ed, 2012, LexisNexis Butterworths) Pearce & Geddes, Statutory Interpretation in Australia (8th ed, 2014, LexisNexis Butterworths Category: Principal judgment Parties: Proceedings 16/157886 Environment Protection Authority (Prosecutor) Grafil Pty Ltd (Defendant)

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TABLE OF CONTENTS Elements of s 144(1) offence 1-5 Protection of the Environment Operations Act 1997 6-12 Protection of the Environment Operations (Waste) Regulation 2005 13-14 Resource recovery exemptions 15-18 Waste Avoidance and Resource Recovery Act 2001 19-23 Environmental Planning and Assessment Act Pt 3A 24 Evidence 25-27 Development history of Grafil's operations 28-31 Macka's Sand Pty Ltd 32-38 Grafil's dealings with the EPA and the Council 2009 to March 2013 39-47 EPA's investigation of Grafil 48-101 Sources of material in Stockpiles 1 and 2 102-182 Nature of the material in Stockpiles 1 and 2 183-234 Consideration of s 144(1) offence 235-253 Second element of s 144(1) offence 254-284 Was material applied to land or temporarily stockpiled? 285-306 Second element of s 144(1) offence not established 307 Third element part 1 - lawful authority - environment protection licence Operation of resource recovery exemptions 308-318 Notes have no legal effect 319-320 Onus of proof of elements of offence under section 144(1) in context of resource recovery exemptions 321-337 Identification of issues concerning resource recovery exemptions 338-342 Construction of CRPF exemption in light of cl 42 Waste Regulation 343-351 Do processor and/or consumer responsibilities under the CPRF exemption include exclusion of asbestos? 352-372 Consequence of breach of resource recovery exemption condition 373-376 Compliance with condition of CPRF exemption by consumer - use for road Condition 7.2.7 377-413 Condition 7.2.7 complied with in charge period 414-433 Application in reasonable time - no failure to comply with CPRF and ENM exemptions established 434-435 Development consent granted to consumer - Condition 7.2.7(b) of CPRF exemption complied with 436-439 No compliance with condition of CPRF and ENM exemptions by consumer - record-keeping 440-445 Compliance with condition of CPRF exemption by consumer - no deposition on water Condition 9.2 446-454 Compliance with condition of CPRF exemption concerning chemical and physical attribute requirements, sampling and testing - Conditions 7, 8, 10, 11, 12 455-500 Is Grafil a consumer under the CPRF and ENM exemptions? 501-507 No EPL required as lawful authority by Grafil 508 Extent of asbestos in Stockpiles 1 and 2 509-527 Continuing offence proved? 528-535 Was s 144(1) charge brought within the limitation period? 536-549 Third element part 2 - lawful authority - development consent under EPA Act 550-572 Third element of s 144(1) offence not established 573-574 Executive liability charge under s 169(1) 575-576

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Protection of the Environment Operations Act 1997

All references to legislation are to the version in force during the charge period as follows: 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, (e) to rationalise, simplify and strengthen the regulatory framework for environment protection, (f) to improve the efficiency of administration of the environment protection legislation, (g) to assist in the achievement of the objectives of the Waste Avoidance and Resource Recovery Act 2001. … 5 Scheduled activities (1) Listing of activities The activities listed in Schedule 1 are scheduled activities for the purposes of this Act. … Chapter 3 Environment protection licences Part 3.1 Introduction … 48 Licensing requirement - scheduled activities (premises-based) (1) Application of section This section applies to scheduled activities where Schedule 1 indicates that a licence is required for premises at which the activity is carried on. (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. Maximum penalty: (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. … Chapter 5 Environment protection offence … Part 5.6 Land pollution and waste … Division 3 Waste offences 143 Unlawful transporting or depositing of waste (1) Offence If a person transports waste to a place that cannot lawfully be used as a waste facility for that waste, or causes or permits waste to be so transported: (a) the person, and (b) if the person is not the owner of the waste, the owner, are each guilty of an offence. … (2) Proof of lawfulness In any proceedings for an offence under this section the defendant bears the onus of proving that the place to which the waste was transported can lawfully be used as a waste facility for that waste. … 144 Use of land as waste facility without lawful authority (1) A person who is the owner or occupier of any land and who uses the land, or causes or permits the land to be used, as a waste facility without lawful authority is guilty of an offence. Maximum penalty: (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. (2) In any proceedings for an offence under this section the defendant bears the onus of proving that there is lawful authority to use the land concerned as a waste facility. … Part 5.9 General offences … 169 Liability of directors etc for offences by corporation - offences attracting special executive liability (1) If a corporation contravenes, whether by act or omission, a provision of this Act attracting special executive liability, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision, unless the person satisfies the court that: (a) (Repealed) (b) the person was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (c) the person, if in such a position, used all due diligence to prevent the contravention by the corporation. (1A) For the purposes of this section, each of the following provisions attract special executive liability: … (p) section 144 (1), …
I note that the charge period is 29 October 2012 to 15 May 2013. The above version of s 169 was in force from 11 January 2013 to 30 May 2013 and therefore covered the latter part of the charge period. Two other versions of s 169 were in force from 31 March 2012 to 31 December 2012 and 1 January 2013 to 10 January 2013 covering the earlier part of the charge period. The differences between these versions do not have any material impact on this matter.
Other relevant sections follow: Chapter 8 Criminal and other proceedings Part 8.5 Evidentiary provisions 258 Evidence relating to occupier of premises (1) In any proceedings under this Act, no proof is required (until evidence is given to the contrary) of the fact that a person is, or at any relevant time was, the occupier of any premises to which the proceedings relate. (2) In any proceedings under this Act, the holder of a licence under this Act in respect of any premises at a particular time or period is taken to be the occupier of the premises at that time or during that period. … Chapter 9 Miscellaneous Part 9.1 Exemptions … 286 Exemptions by regulation (1) The regulations may exempt, or provide for the exemption of: (a) any person or class of persons, or (b) any premises or class of premises, or (c) any area or class of areas, or (d) any activity or class of activities, or (e) any other matter or thing or class of matters or things, from any specified provision or provisions of this Act or the regulations, in such circumstances (if any) and subject to such conditions (if any) as may be specified or referred to in the regulations. (2) The power to make regulations under this section is not limited by section 284.
By reference to the Dictionary of the POEO Act , the terms "waste" and "waste facility" are defined as follows: In this Act: … waste includes: (a) any substance (whether solid, liquid or gaseous) that is discharged, emitted or deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment, or (b) any discarded, rejected, unwanted, surplus or abandoned substance, or (c) any otherwise discarded, rejected, unwanted, surplus or abandoned substance intended for sale or for recycling, processing, recovery or purification by a separate operation from that which produced the substance, or (d) any processed, recycled, re-used or recovered substance produced wholly or partly from waste that is applied to land, or used as fuel, but only in the circumstances prescribed by the regulations, or (e) any substance prescribed by the regulations to be waste. A substance is not precluded from being waste for the purposes of this Act merely because it is or may be processed, recycled, re-used or recovered. waste facility means any premises used for the storage, treatment, processing, sorting or disposal of waste (except as provided by the regulations).
Schedule 1 of the POEO Act provides: Schedule 1 Scheduled activities Part 1 Premises-based activities 1 Application of Part (1) For the purposes of section 48, any activity that is declared by this Part to be a scheduled activity is taken to be an activity for which a licence is required for the premises at which it is carried out (the activity is premises-based). … 39 Waste disposal (application to land) (1) This clause applies to waste disposal by application to land, meaning the application to land of waste received from off site, including (but not limited to) application by any of the following methods: (a) spraying, spreading or depositing on the land, (b) ploughing, injecting or mixing into the land, (c) filling, raising, reclaiming or contouring the land. (2) However, this clause does not apply to an activity that involves any of the following: (a) sites inside the regulated area that, over any period of time, receive from off site a total of no more than 200 tonnes of the following waste (and no other waste): (i) building and demolition waste only, (ii) building and demolition waste mixed with virgin excavated natural material, ... (3) The activity to which this clause applies is declared to be a scheduled activity. (4) For the purposes of this clause, 1 litre of waste is taken to weigh 1 kilogram. … 42 Waste storage (1) This clause applies to waste storage, meaning the receiving from off site and storing (including storage for transfer) of waste. (2) However, this clause does not apply to any of the following: (a) the storage of stormwater, (b) the storage of up to 60 tonnes at any time of grease trap waste, waste lead acid batteries or waste oil collected for recovery (but not when accompanied by any other kind of waste), (c) the storage of sewage within a sewage treatment system, (d) the storage and transfer of liquid waste that is generated and treated on site prior to sewer discharge, or lawful discharge to waters. (3) The activity to which this clause applies is declared to be a scheduled activity if: (a) more than 5 tonnes of hazardous waste, restricted solid waste, liquid waste, clinical or related waste or asbestos waste is stored on the premises at any time, or (b) more than 50 tonnes of waste tyres or 5,000 waste tyres is stored on the premises at any time, or (c) more than 2,500 tonnes or 2,500 cubic metres, whichever is the lesser, of waste (other than waste referred to in paragraph (a) or (b)) is stored on the premises at any time, or (d) more than 30,000 tonnes of waste (other than waste referred to in paragraph (a) or (b)) is received per year from off site. (4) For the purposes of this clause, 1 litre of waste is taken to weigh 1 kilogram. … Part 3 Definitions Division 1 Waste classifications 49 Definitions of waste classifications (1) In this Schedule: … special waste means any of the following: (a) clinical and related waste, (b) asbestos waste, (c) waste tyres, (d) anything that is classified as special waste pursuant to an EPA Gazettal notice. … Division 2 Other definitions 50 Other definitions (1) In this Schedule: … asbestos means the fibrous form of those mineral silicates that belong to the serpentine or amphibole groups of rock-forming minerals, including actinolite, amosite (brown asbestos), anthophyllite, chrysotile (white asbestos), crocidolite (blue asbestos) and tremolite. asbestos waste means any waste that contains asbestos. …
The EPA submitted that by virtue of ss 5(1) and 48 of the POEO Act and cll 39 and 42 of Sch 1 of the POEO Act , "waste disposal" (application to land) and "waste storage" are scheduled activities for which a licence is required for any premises at which those activities are carried on.
Salt Ash is located in the Port Stephens LGA. The Port Stephens LGA is listed as a "regulated area" in Sch 1 of the POEO Act.

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Protection of the Environment Operations (Waste) Regulation 2005

Clause 3B of the Waste Regulation prescribes the following for the purpose of par (d) of the definition of "waste" in the Dictionary of the POEO Act set out above: Part 1 Preliminary … 3B Definition of "waste" (1) For the purposes of paragraph (d) of the definition of waste in the Dictionary to the Act, the following circumstances are prescribed: (a) in relation to substances that are applied to land, the application to land by: (i) spraying, spreading or depositing on the land, or (ii) ploughing, injecting or mixing into the land, or (iii) filling, raising, reclaiming or contouring the land, (b) in relation to substances that are used as fuel, all circumstances. (2) Subclause (1) (a) does not apply where the substances concerned are either bulk agricultural crop materials or manure. …
Other relevant clauses of the Waste Regulation provide: Part 4 Management of special wastes 42 Special requirements relating to asbestos waste (1) This clause applies to any activity that involves the transportation, disposal, re-use or recycling of any type of asbestos waste, regardless of whether the activity is required to be licensed. (2) A person who carries on an activity to which this clause applies must comply with the requirements specified in this clause in relation to the activity concerned. Maximum penalty: 400 penalty units in the case of a corporation, 200 penalty units in the case of an individual. (3) The requirements relating to the transportation of asbestos waste are as follows: (a) bonded asbestos material must be securely packaged at all times, (b) friable asbestos material must be kept in a sealed container, (c) asbestos-contaminated soils must be wetted down, (d) all asbestos waste must be transported in a covered, leak-proof vehicle. (4) The requirements relating to the off site disposal of asbestos waste are as follows: (a) asbestos waste in any form must be disposed of only at a landfill site that may lawfully receive the waste, (b) when asbestos waste is delivered to a landfill site, the occupier of the landfill site must be informed by the person delivering the waste that the waste contains asbestos, (c) when unloading and disposing of asbestos waste at a landfill site, the waste must be unloaded and disposed of in such a manner as to prevent the generation of dust or the stirring up of dust, (d) asbestos waste disposed of at a landfill site must be covered with virgin excavated natural material or other material as approved in the facility's environment protection licence: (i) initially (at the time of disposal), to a depth of at least 0.15 metre, and (ii) at the end of each day's operation, to a depth of at least 0.5 metre, and (iii) finally, to a depth of at least 1 metre (in the case of bonded asbestos waste or asbestos-contaminated soils) or 3 metres (in the case of friable asbestos material) beneath the final land surface of the landfill site. (5) A person must not cause or permit asbestos waste in any form to be re-used or recycled. (6) In this clause: bonded asbestos material means any material (other than friable asbestos material) that contains asbestos. friable asbestos material means any material that contains asbestos and is in the form of a powder or can be crumbled, pulverised or reduced to powder by hand pressure when dry. … Part 6 Miscellaneous … 51 General provisions relating to exemptions (1) The EPA may grant an exemption under this clause if authorised to do so by any provision of the Act or by another provision of this Regulation. (2) An exemption may be granted in relation to: (a) any person or class of persons, or (b) any premises or class of premises, or (c) any area or class of areas, or (d) any activity or class of activities, or (e) any other matter or thing or class of matters or things. (3) An exemption granted under this clause may be a general exemption or a specific exemption. (4) A general exemption may be given by way of notice published in the Gazette. A specific exemption may be given after an application is made to the EPA. … (6) An exemption under this clause is subject to such conditions as may be imposed by the EPA. (7) In giving an exemption under this clause, the EPA may, in relation to a general exemption, and must, in relation to a specific exemption, identify a person (or class of persons) to whom the exemption relates (the responsible person). (8) A general exemption may be amended or revoked by the EPA by way of notice published in the Gazette. … (10) If an exemption is given under this clause for which a responsible person is identified, the responsible person must comply with the conditions to which the exemption is subject. Maximum penalty: 400 penalty units in the case of a corporation, 200 penalty units in the case of an individual. 51A Exemptions relating to certain waste (1) This clause applies to: (a) waste that is waste by virtue of paragraph (d) of the definition of waste in the Dictionary to the Act, and (b) any other waste that is used in connection with a process of thermal treatment, and (c) coal washery rejects (within the meaning of Part 2). (2) The EPA may from time to time grant an exemption under clause 51 that exempts a person or class of persons from any one or more of the following provisions in relation to an activity or class of activities relating to waste to which this clause applies: (a) the provisions of sections 47-49 and 88 of the Act, (b) the provisions of Schedule 1 to the Act, either in total or as they apply to a particular type of activity, (c) the provisions of Part 3 and clauses 45 and 47 of this Regulation. …

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Excavated Natural Material exemption 2012 extract

Relevant extracts of the ENM exemption are set out below (the notes to the ENM exemption being omitted): PROTECTION OF THE ENVIRONMENT OPERATIONS (WASTE) REGULATION 2005 - GENERAL EXEMPTION UNDER PART 6, CLAUSE 51 AND 51A The Excavated Natural Material Exemption 2012 Name 1. This exemption is to be known as "The excavated natural material exemption 2012". Commencement 2. This exemption commences on 19 October 2012. "The excavated natural material exemption 2008" which commenced 25 July 2008 is revoked from 19 October 2012. Duration 3. This exemption is valid until revoked by the Environment Protection Authority (EPA) by notice published in the New South Wales Government Gazette. Legislation 4. Under the Protection of the Environment Operations (Waste) Regulation 2005 (the Regulation): 4.1. Clause 51 (2) authorises the EPA to grant an exemption in relation to any matter or thing including an activity or class of activities, and 4.2. Clause 51A authorises the EPA to exempt a person from any of the following provisions in relation to an activity or class of activities relating to certain waste that is to be land applied or used as a fuel: • the provisions of sections 47 to 49 and 88 of the Protection of the Environment Operations Act 1997 (the Act), • the provisions of Schedule 1 to the Act, either in total or as they apply to a particular activity, and • the provisions of Part 3 and clauses 45 and 47 of the Regulation. Exemption 5. In this Notice of Exemption: 5.1. The responsible person listed in Column 1 of Table 1 is exempt from the provision/s listed in Column 2 of that table but only: • in relation to activities involving the relevant waste, and • where the responsible person complies with the conditions referred to in Column 3 of the table, and • in the case of a consumer, in relation to the premises where the waste is applied to land as permitted by clause 7.2. However, this Notice of Exemption does not exempt the responsible person from the provisions specified in Column 2 where the relevant waste is received at premises that are, despite this exemption, required to be licensed for waste disposal (application to land) activities under the provisions of the Act. 5.2. Where a responsible person complies with the conditions of this Notice of Exemption, the activity referred to in Schedule 1 from which that person is exempt is taken to be a non-scheduled activity for the purposes of the Act. Table 1 Column 1 Column 2 Column 3 Responsible person Provisions from which the responsible person is exempt Conditions to be met by the responsible person Generator section 48 of the Act in respect of clause 39 of Schedule 1 to the Act all requirements specified in section 7 and 8 section 48 of the Act in respect of clauses 39 and 42 of Schedule 1 to the Act Consumer section 88 of the Act all requirements specified in section 7 and 9 clause 47 of the Regulation

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This Notice of Exemption is a general exemption for the purposes of clause 51(3) of the Regulation. Definitions 6. In this Notice of Exemption: Bgl means below ground level, referring to soil at depth beneath the ground surface. Characterisation means sampling and testing that must be conducted on the material for the range of chemicals and other attributes listed in Column 1 of Table 2. Composite sample means a sample that combines 5 sub-samples of equal size into a single sample for the purpose of analysis. Consumer means a person who applies, causes, or permits the application to land of excavated natural material within the definitions of "application to land" in accordance with the Act. The consumer may be the landholder responsible for the land to which excavated natural material is applied. Discrete sample means a sample collected and analysed individually that will not be composited. Excavated natural material is naturally occurring rock and soil (including but not limited to materials such as sandstone, shale, clay and soil) that has: (a) been excavated from the ground, and (b) contains at least 98% (by weight) natural material, and (c) does not meet the definition of Virgin Excavated Natural Material in the Act. Excavated natural material does not include material located in a hotspot; that has been processed; or that contains asbestos, Acid Sulfate Soils (ASS), Potential Acid Sulfate soils (PASS) or sulfidic ores. Generator means a person who generates excavated natural material for supply to a consumer. Hotspot means a cylindrical volume which extends through the soil profile from the ground surface to the proposed depth of excavation, where the level of any contaminant listed in Column 1 of Table 2 is greater than the absolute maximum concentration in Column 3 of Table 2. In situ material means material that exists on or below the ground level. It does not include stockpiled material. In situ sampling means sampling undertaken on in situ material. Relevant waste means excavated natural material that meets the requirements of Section 7. Stockpiled material means material that has been excavated from the ground and temporarily stored on the ground prior to use. Systematic sampling means sampling at points that are selected at even intervals and are statistically unbiased. Validation means ensuring that test results comply with the conditions of this exemption prior to material being supplied to a consumer. General conditions 7. This Notice of Exemption is subject to the following conditions: 7.1. The chemical concentration or other attribute of the excavated natural material listed in Column 1 of Table 2 must not exceed any of the following: 7.1.1. For characterisation tests, the maximum average (based on the arithmetic mean) concentration or value listed in Column 2 of Table 2, and 7.1.2. The absolute maximum concentration or value listed in Column 3 of Table 2. 7.2. The excavated natural material can only be applied to land as engineering fill or used in earthworks. Generator responsibilities 8. The following conditions must be met by the generator for this exemption to apply: 8.1. The generator must prepare a written sampling plan which includes information on sample preparation and storage. The plan must be kept for a period of three years; 8.2. The generator must undertake sampling and analysis of the material for Acid Sulfate Soil (ASS) and Potential Acid Sulfate Soil (PASS), in accordance with the NSW Acid Sulfate Soil Manual, Acid Sulfate Soils Management Advisory Council, 1998 and the updated Laboratory Methods Guidelines version 2.1 - June 2004 where: 8.2.1. the pH measured in the material is below 5, and/or 8.2.2. the review of the applicable Acid Sulfate Soil Risk Maps (published by the former Department of Land and Water Conservation and available at http://www.environment.nsw.gov.au/acidsulfatesoil/riskmaps. htm) indicates the potential presence of Acid Sulfate Soils (ASS). 8.3. For stockpiled material, the generator must: 8.3.1. undertake sampling in accordance with Australian Standard 1141.3.1-1996 Methods for sampling and testing aggregates - Sampling - Aggregates (or equivalent); 8.3.2. undertake characterisation according to the requirements listed in Columns 1 and 2 of Table 3 for the range of chemicals and other attributes listed in Column 1 of Table 2; and 8.3.3. store the excavated natural material appropriately until the characterisation test results are validated (i.e. obtained and assessed as compliant with this exemption). 8.4. For in situ material, the generator must: 8.4.1. undertake characterisation for the range of chemicals and other attributes listed in Column 1 of Table 2 according to the requirements listed in Columns 1, 2, and 3 of Table 4. When the ground surface is not comprised of soil (e.g. concrete slab), samples must be taken at the depth at which the soil commences. 8.4.2. undertake sampling at depth according to Column 1 of Table 5. 8.4.3. collect additional soil samples (and analyse them for the range of chemicals and other attributes listed in Column 1 of Table 2), at any depth exhibiting discolouration, staining, odour or other indicators of contamination inconsistent with soil samples collected at the depth intervals indicated in Table 5. 8.4.4. segregate and exclude hotspots identified in accordance with Table 4, from material excavated for reuse under this exemption. 8.5. For both stockpiled and in situ material the generator must: 8.5.1. keep a written record of all characterisation test results, volume of excavated material, and detected hotspot material for a period of three years; and 8.5.2. provide a written statement of compliance to the consumer with each transaction, certifying that the excavated natural material complies with the relevant conditions of this exemption. Consumer responsibilities 9. The following conditions must be met by the consumer for this exemption to apply: 9.1. The consumer must ensure that the excavated natural material is fit for purpose and poses minimal risk of harm to human health or the environment. 9.2. The consumer must keep records of the quantity of the excavated natural material received as well as the suppliers' name and address, for a period of three years. 9.[3] The consumer must land apply the relevant waste within a reasonable period of time. Chemical and other material property requirements 10. This Notice of Exemption only applies to excavated natural material where the chemical and other attributes listed in Column 1 of Table 2 comply with the chemical concentrations and other values listed in Column 2 and Column 3 of Table 2, when analysed according to test methods specified in Column 4 of Table 2. … Sampling requirements 11. This Notice of Exemption only applies to excavated natural material sampled according to the requirements in Tables 3, 4 and 5. 11.1. Stockpiled excavated natural material must be sampled as per the requirements in Table 3. 11.1.1. Composite sampling must be undertaken for analysis of attributes 1 to 10 and 18 in Column 1 of Table 2. Discrete sampling must be undertaken for analysis of attributes 11 to 17 in Column 1 of Table 2. 11.1.2. Sampling must be undertaken in a manner that ensures all parts of the stockpile are equally accessible for representative sampling. 11.1.[3] For stockpiles greater than 4,000 tonnes the number of samples described in Table 3 must be repeated. Table 3 Sampling of Stockpiled Material Column 1 Quantity (tonnes) Column 2 Column 3 Number of samples Validation <500 3 Required 500-1,000 4 1,000-2,000 5 2,000-3,000 7 3,000-4,000 10

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"Continuous Process" Recovered Fines exemption 2010

The CPRF exemption is set out below in full: PROTECTION OF THE ENVIRONMENT OPERATIONS (WASTE) REGULATION 2005 - GENERAL EXEMPTION UNDER PART 6, CLAUSE 51 AND 51A The "continuous process" recovered fines exemption September 2010 Name 1. This exemption is to be known as "The continuous process' recovered fines exemption September 2010". Commencement 2. This exemption commences on 13 September 2010. "The continuous process' recovered fines exemption April 2010" which commenced 1 April 2010 is revoked from 13 September 2010. Duration 3. This exemption is valid until revoked by the Environment Protection Authority (EPA) by notice published in the Government Gazette. Legislation 4. Under the Protection of the Environment Operations (Waste) Regulation 2005 (the Regulation): 4.1. Clause 51 authorises the EPA to grant an exemption in relation to any matter or thing including an activity or class of activities, and 4.2. Clause 51A authorises the EPA to exempt a person or class of persons from any of the following provisions in relation to an activity or class of activities relating to certain waste that is to be land applied or used as a fuel: • the provisions of sections 47 to 49 and 88 of the Protection of the Environment Operations Act 1997 (the Act), • the provisions of Schedule 1 to the Act, either in total or as they apply to a particular activity, and • the provisions of Part 3 and clauses 45 and 47 of the Regulation. Exemption 5. In this Notice of Exemption: 5.1. The responsible person listed in Column 1 of Table 1 is exempt from the provision/s listed in Column 2 of that table but only in relation to activities involving the relevant waste and only where the responsible person complies with the conditions referred to in Column 3 of the table. However, this Notice of Exemption does not exempt the responsible person from the provisions specified in Column 2 where the relevant waste is received at premises that are, despite this exemption, required to be licensed for waste disposal (application to land) activities under the provisions of the Act. 5.2. Where a responsible person complies with the conditions of this Notice of Exemption, the activity referred to in Schedule 1 from which that person is exempt is taken to be a non-scheduled activity for the purposes of the Act. Table 1 Column 1 Column 2 Column 3 Responsible person Provisions from which the responsible person is exempt Conditions to be met by the responsible person Processor section 48 of the Act in respect of clause 39 of Schedule 1 to the Act all requirements specified in section 7, 8, 10 and 11 section 48 of the Act in respect of clauses 39 and 42 of Schedule 1 to the Act Consumer section 88 of the Act all requirements specified in section 7,9,10 and 11 clause 47 of the Regulation

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This Notice of Exemption is a general exemption for the purposes of clause 51(3) of the Regulation. Definitions 6. In this Notice of Exemption: Characterisation means sampling and testing that must be conducted on the "continuous process" recovered fines for the range of chemicals and other attributes listed in Column 1 of Table 2. "Continuous process" recovered fines means a soil or sand substitute with a typical particle size of less than 9.5 mm that is derived from the processing of mixed construction and demolition waste including residues from the processing of skip bin waste. Composite sample means a sample that combines 5 discrete sub-samples into a single sample for the purpose of analysis. Consumer means a person who applies, causes, or permits the application to land of "continuous process" recovered fines within the definitions of "application to land" in accordance with the Act. The consumer may be the landholder responsible for the land to which recovered fines are applied. Processor means a person who processes, mixes, blends, or otherwise incorporates "continuous process" recovered fines into a material for supply to a consumer. Relevant waste means "continuous process" recovered fines that meet the requirements of Section 7. Routine sampling means sampling and testing that must be conducted on the "continuous process" recovered fines on an ongoing and regular basis. Validation means ensuring that test results comply with the conditions of this exemption prior to supply to a consumer or another processor who does not blend or alter the nature of the "continuous process" recovered fines. General conditions 7. This Notice of Exemption is subject to the following conditions: 7.1. The chemical concentration or other attribute of the "continuous process" recovered fines listed in Column 1 of Table 2 must not exceed any of the following: 7.1.1. the absolute maximum concentration or other value listed in Column 4 of Table 2, 7.1.2. for characterisation tests, the maximum average (based on the arithmetic mean) concentration or other value listed in Column 2 of Table 2, and 7.1.3. for routine tests, the maximum average (based on the arithmetic mean) concentration or other value listed in Column 3 of Table 2. 7.2. The "continuous process" recovered fines can only be applied to land for the purposes of construction or landscaping. This approval does not apply to any of the following applications: 7.2.1. Construction of dams or related water storage infrastructure, 7.2.2. Mine site rehabilitation, 7.2.3. Quarry rehabilitation, 7.2.4. Sand dredge pond rehabilitation, 7.2.5. Back-filling of quarry voids, 7.2.6. Raising or reshaping of land used for agricultural purposes, and 7.2.7. Construction of roads on private land unless: (a) the relevant waste is applied to land to the minimum extent necessary for the construction of a road, and (b) a development consent for the development has been granted under the relevant Environmental Planning Instrument (EPI), or (c) it is to provide access (temporary or permanent) to a development approved by a Council, or (d) the works undertaken are either exempt or complying development. Processor responsibilities 8. The following conditions must be met by the processor for this exemption to apply: 8.1. Sampling must be undertaken in accordance with Australian Standard 1141 Methods for sampling and testing aggregates (or equivalent). Sampling and information on sample storage and preparation must be detailed in a written sampling plan. A record of weekly sampling times and other operational information should be kept on-site. 8.2. The "continuous process" recovered fines must be sampled according to the requirements listed Column 1 and Column 2 of Table 3. 8.3. Where there is a change in inputs that is likely to affect the properties of the "continuous process" recovered fines, characterisation must be repeated. Blending of any materials into "continuous process" recovered fines after sampling as required in Table 3 would be regarded as a change in inputs. 8.4. Characterisation samples can be used for routine testing and subsequent calculations. 8.5. Processors must keep a written record of all characterisation and routine test results for a period of three years. 8.6. Records of the quantity of "continuous process" recovered fines supplied to the consumer and either the consumer's name and address or the registration details of the vehicle used to transport the "continuous process" recovered fines, must be kept for a period of three years. 8.7. The processor of "continuous process" recovered fines must provide a written statement of compliance to the consumer with each transaction, certifying that the "continuous process" recovered fines complies with the relevant conditions of this exemption. 8.8. The processor of "continuous process" recovered fines must make information on the latest characterisation and routine test results available to the consumer or the EPA upon request. 8.9. The processor of "continuous process" recovered fines must use due diligence to ensure that the relevant waste is utilised in applications that are consistent with the conditions of this exemption. Consumer responsibilities 9. The following conditions must be met by the consumer for this exemption to apply: 9.1. Records of the quantity of the "continuous process" recovered fines received by the consumer and the suppliers' name and address must be kept for a period of three years. 9.2. The relevant waste must not be applied in or beneath water including groundwater. 9.3. The consumer must land apply the relevant waste within a reasonable period of time. Chemical and other material property requirements 10. This Notice of Exemption only applies to "continuous process" recovered fines where the chemical and other attributes listed in Column 1 of Table 2 comply with the chemical concentrations and other values listed in Column 2, Column 3 and Column 4 of Table 2, when analysed according to test methods specified in Column 5 of Table 2. Table 2 Column 1 Column 2 Column 3 Column 4 Column 5 Maximum average Test Maximum average concentration for characterisation concentration for routine Absolute maximum concentration method Chemicals and other attributes (mg/kg "dry weight" unless otherwise specified) testing (mg/kg "dry weight" unless otherwise specified) specified (mg/kg "dry weight" unless otherwise specified) within Section

Mercury 0.5 No testing required 1.5 12.1
Cadmium 0.5 No testing required 1.5 12.2
Lead 100 100 250 12.2
Arsenic 20 No testing required 40 12.2
Chromium (total) 60 60 150 12.2
Copper 70 70 200 12.2
Nickel 40 No testing required 80 12.2
Zinc 250 250 600 12.2
Total Organic Carbon 5% No testing required 10% 12.3
Electrical Conductivity 2.5 dS/m 2.5 dS/m 3.5 dS/m 12.4
pH* 7.5-9 7.5-9 7.0-10 12.4
Total Polycyclic Aromatic Hydrocarbons (PAHs) 20 No testing required 80 12.5
Benzo(a)pyrene 1 No testing required 6 12.5
Total Petroleum Hydrocarbons (TPHs) C6-C9 80 No testing required 150 12.6

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Test methods 12. All testing must be undertaken by analytical laboratories accredited by the National Association of Testing Authorities, or equivalent. All chemicals and other attributes listed in Column 1 of Table 2 must be measured in accordance with the test methods specified below: 12.1. Test methods for measuring the mercury concentration in "continuous process" recovered fines: 12.1.1 Particle size reduction & sample splitting may be required. 12.1.2 USEPA SW-846 Method 7471B Mercury in solid or semisolid waste (manual cold vapour technique), or an equivalent analytical method with a detection limit < 20% of the stated absolute maximum concentration in Table 2, Column 4 (i.e. 0.3 mg/kg dry weight). 12.1.3 Report as mg/kg dry weight. 12.2. Test methods for measuring chemicals 2-8 in "continuous process" recovered fines: 12.2.1 Particle size reduction & sample splitting may be required. 12.2.2 Sample preparation by digestion using USEPA SW-846 Method 3051A Microwave assisted acid digestion of sediments, sludges, soils, and oils (or an equivalent analytical method). 12.2.3 Analysis using USEPA SW-846 Method 6010C Inductively coupled plasma - atomic emission spectrometry, or an equivalent analytical method with a detection limit < 10% of the stated absolute maximum concentration in Table 2, Column 4 (i.e. 25 mg/kg dry weight for lead). 12.2.4 Report as mg/kg dry weight. 12.3. Test methods for measuring the total organic carbon content in "continuous process" recovered fines: 12.3.1 Method 105 (Organic Carbon). In Schedule B (3): Guideline on Laboratory Analysis of Potentially Contaminated Soils, National Environment Protection (Assessment of Site Contamination) Measure 1999 (or an equivalent analytical method). 12.3.2 Reporting as % total organic carbon. 12.4. Test methods for measuring the electrical conductivity and pH in "continuous process" recovered fines: 12.4.1 Sample preparation by mixing 1 part recovered fines with 5 parts distilled water. 12.4.2 Analysis using Method 103 (pH) and 104 (Electrical Conductivity). In Schedule B (3): Guideline on Laboratory Analysis of Potentially Contaminated Soils, National Environment Protection (Assessment of Site Contamination) Measure 1999 (or an equivalent analytical method). 12.4.3 Report electrical conductivity in deciSiemens per metre (dS/m). 12.5. Test method for measuring PAHs and benzo(a)pyrene in "continuous process" recovered fines: 12.5.1 Analysis using USEPA SW-846 Method 8100 Polynuclear aromatic hydrocarbons (or an equivalent analytical method). 12.5.2 Calculate the sum of all 16 PAHs for total PAHs. 12.5.3 Report total PAHs as mg/kg dry weight. 12.5.4 Report benzo(a)pyrene as mg/kg. 12.6. Test method for measuring TPHs in "continuous process" recovered fines: 12.6.1. Method 506 (Petroleum Hydrocarbons). In Schedule B (3): Guideline on Laboratory Analysis of Potentially Contaminated Soils, National Environment Protection (Assessment of Site Contamination) Measure 1999 (or an equivalent analytical method). 12.6.2. Report C6 - C9 as mg/kg. 12.6.3. Report C10 - C36 as mg/kg. 12.7. Test methods for measuring chlorinated hydrocarbons in "continuous process" recovered fines: 12.7.1. Analysis using USEPA SW-846 Method 8021B Aromatic and halogenated volatiles by gas chromatography using photoionization and/or electrolytic conductivity detectors (or an equivalent analytical method). 12.7.2. Measure the following chlorinated hydrocarbons: carbon tetrachloride, chlorobenzene, chloroform, 1,2-dichlorobenzene, 1,4-dichlorobenzene, 1,2-dichloroethane, 1,1-dichloroethene, 1,2-dichlorothene, dichloromethane (methylene chloride), 1,1,1,2-tetrachloroethane, 1,1,2,2-tetrachloroethane, 1,2,4-trichlorobenzene, 1,1,1-trichloroethane, 1,1,2-trichloroethane, trichloroethene, vinyl chloride and hexachlorobutadiene concentrations. 12.7.3. Report individual listed chlorinated hydrocarbons as mg/kg. 12.8. Test methods for measuring organochlorine pesticides in "continuous process" recovered fines: 12.8.1. Analysis using USEPA SW-846 Method 808IB Organochlorine pesticides by gas chromatography (or an equivalent analytical method). 12.8.2. Measure the following organochlorine pesticides: aldrin, alpha BHC, beta BHC, gamma BHC (lindane), delta BHC, chlordane, DDT, DDD, DDE, dieldrin, endrin, endrin aldehyde, heptachlor, heptachlor epoxide, hexachlorobenzene, methoxychlor and endosulfan (includes endosulfan I, endosulfan II and endosulfan sulphate). 12.8.3. Report individual listed organochlorine pesticides as mg/kg. 12.9. Test methods for measuring the PCBs in "continuous process" recovered fines: 12.9.1. USEPA SW-846 Method 8082A Polychlorinated Biphenyls (PCBs) by gas chromatography (or an equivalent analytical method). 12.9.2. Measure the following PCBs: Aroclor 1016 (CAS Registry No. 12674-11-2), Aroclor 1221 (CAS Registry No. 11104-28-2), Aroclor 1232 (CAS Registry No. 11141-16-5), Aroclor 1242 (CAS Registry No. 53469-21-9), Aroclor 1248 (CAS Registry No. 12672-29-6), Aroclor 1254 (CAS Registry No. 11097-69-1), Aroclor 1260 (CAS Registry No. 11096-82-5). 12.9.3. Report individual listed PCBs as mg/kg. 12.10. Test method for measuring 19-20 in "continuous process" recovered fines: 12.10.1. NSW Roads & Traffic Authority Test Method T276 Foreign Materials Content of Recycled Crushed Concrete (or an equivalent method), using a 2.36 mm sieve. 12.10.2. Report as %. 12.11. Test method for measuring 21-23 in "continuous process" recovered fines: 12.11.1. NSW Roads & Traffic Authority Test Method T106 Coarse particle distribution in road construction materials (by dry sieving) and T107 Fine particle distribution in road construction materials (or an equivalent method). 12.11.2. Report as %. Exemption Granted Mark Gorta, Manager, Waste Management Section Environment Protection Authority by delegation Notes The EPA may amend or revoke this exemption at any time. It is the responsibility of the generator, processor and consumer to ensure that they comply with all relevant requirements of the most current exemption. The current version of an exemption will be available on the EPA website: www.environment.nsw.gov.au In gazetting this general exemption, the EPA is exempting the relevant waste from the specific requirements of the Act and Regulations as stated in this exemption. The EPA is not in any way endorsing the use of this substance or guaranteeing that the substance will confer benefit. The use of exempted material remains subject to other relevant environmental regulations within the Act and Regulations. For example, a person who pollutes land (s142A) or water (s120), or does not meet the special requirements for asbestos waste (clause 42), regardless of having an exemption, is guilty of an offence and subject to prosecution. For the purposes of arrangements between a generator, a processor and a consumer, a "transaction" is taken to mean the contractual agreement between the two parties which specifies the exchange of waste material from one party to another. A "statement of compliance" must be in writing and be provided with each transaction. The conditions set out in this exemption are designed to minimise the risk of potential harm to the environment, human health or agriculture, however, neither this exemption nor these conditions guarantee that the environment, human health or agriculture will not be harmed. The consumer should assess whether or not the exempted material is fit for the purpose the material is proposed to be used and whether this use will cause harm. The consumer may need to seek expert engineering or technical advice. This exemption does not apply to any material received at a premises that is required to be licensed for waste disposal (application to land) activities under the provisions of the Act. This exemption does not remove the need for a site at which processing occurs to be licensed, if required under Schedule 1 of the Act. This exemption does not alter the requirements of any other relevant legislation that must be met in utilising this material, including for example, the need to prepare a Material Safety Data Sheet (MSDS). Regardless of any exemption provided by the EPA, the person who causes or permits the application of the substance to land must ensure that the action is lawful and consistent with the development consent requirements of the land. All records required to be kept under this exemption must be made available to authorised officers of the EPA upon request. Failure to comply with the conditions of this Notice of Exemption may constitute an offence under clause 51 of the Regulation and the responsible person will be required to comply with the normal regulatory provisions.

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"Batch process" recovered fines exemption 2010 extract

Relevant extracts of the BPRF exemption are set out below: PROTECTION OF THE ENVIRONMENT OPERATIONS (WASTE) REGULATION 2005 - GENERAL EXEMPTION UNDER PART 6, CLAUSE 51 AND 51A The "batch process" recovered fines exemption September 2010 Name 1. This exemption is to be known as "The 'batch process' recovered fines exemption September 2010". Commencement 2. This exemption commences on 13 September 2010. "The `batch process' recovered fines exemption April 2010" which commenced 1 April 2010 is revoked from 13 September 2010. Duration 3. This exemption is valid until revoked by the Environment Protection Authority (EPA) by notice published in the Government Gazette. Legislation 4. Under the Protection of the Environment Operations (Waste) Regulation 2005 (the Regulation): 4.1. Clause 51 authorises the EPA to grant an exemption in relation to any matter or thing including an activity or class of activities, and 4.2. Clause 51A authorises the EPA to exempt a person or class of persons from any of the following provisions in relation to an activity or class of activities relating to certain waste that is to be land applied or used as a fuel: • the provisions of sections 47 to 49 and 88 of the Protection of the Environment Operations Act 1997 (the Act), • the provisions of Schedule 1 to the Act, either in total or as they apply to a particular activity, and • the provisions of Part 3 and clauses 45 and 47 of the Regulation. Exemption 5. In this Notice of Exemption: 5.1. The responsible person listed in Column 1 of Table 1 is exempt from the provision/s listed in Column 2 of that table but only in relation to activities involving the relevant waste and only where the responsible person complies with the conditions referred to in Column 3 of the table. However, this Notice of Exemption does not exempt the responsible person from the provisions specified in Column 2 where the relevant waste is received at premises that are, despite this exemption, required to be licensed for waste disposal (application to land) activities under the provisions of the Act. 5.2. Where a responsible person complies with the conditions of this Notice of Exemption, the activity referred to in Schedule 1 from which that person is exempt is taken to be a non-scheduled activity for the purposes of the Act. Table 1 Column 1 Column 2 Column 3 Responsible person Provisions from which the responsible person is exempt Conditions to be met by the responsible person Processor section 48 of the Act in respect of clause 39 of Schedule 1 to the Act all requirements specified in section 7, 8, 10 and 11 section 48 of the Act in respect of clauses 39 and 42 of Schedule 1 to the Act Consumer section 88 of the Act all requirements specified in section 7, 9, 10 and 11 clause 47 of the Regulation

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This Notice of Exemption is a general exemption for the purposes of clause 51(3) of the Regulation. Definitions 6. In this Notice of Exemption: "Batch process" recovered fines means a soil or sand substitute with a typical maximum particle size of 9.5 mm that is derived from the processing of mixed construction and demolition waste including residues from the processing of skip bin waste. Characterisation means sampling and testing that must be conducted on the "batch process" recovered fines for the range of chemicals and other attributes listed in Column 1 of Table 2. Composite sample means a sample that combines 5 discrete sub-samples into a single sample for the purpose of analysis. Consumer means a person who applies, causes, or permits the application to land of "batch process" recovered fines within the definitions of "application to land" in accordance with the Act. The consumer may be the landholder responsible for the land to which recovered fines are applied. Processor means a person who processes, mixes, blends, or otherwise incorporates "batch process" recovered fines into a material for supply to a consumer. Relevant waste means "batch process" recovered fines that meet the requirements of Section 7. Routine sampling means sampling and testing that must be conducted on the "batch process" recovered fines on an ongoing and regular basis. Validation means ensuring that test results comply with the conditions of this exemption prior to supply to a consumer or another processor who does not blend or alter the nature of the "batch process" recovered fines. General conditions 7. This Notice of Exemption is subject to the following conditions: 7.1. The chemical concentration or other attribute of the "batch process" recovered fines listed in Column 1 of Table 2 must not exceed any of the following: 7.1.1. the absolute maximum concentration or other value listed in Column 4 of Table 2, 7.1.2. for characterisation tests, the maximum average (based on the arithmetic mean) concentration or other value listed in Column 2 of Table 2. 7.2. The "batch process" recovered fines can only be applied to land for the purposes of construction or landscaping. This approval does not apply to any of the following applications: 7.2.1. Construction of dams or related water storage infrastructure, 7.2.2. Mine site rehabilitation, 7.2.3. Quarry rehabilitation, 7.2.4. Sand dredge pond rehabilitation, 7.2.5. Back-filling of quarry voids, 7.2.6. Raising or reshaping of land used for agricultural purposes, and 7.2.7. Construction of roads on private land unless: (a) the relevant waste is applied to land to the minimum extent necessary for the construction of a road, and (b) a development consent for the development has been granted under the relevant Environmental Planning Instrument (EPI), or (c) it is to provide access (temporary or permanent) to a development approved by a Council, or (d) the works undertaken are either exempt or complying development. Processor responsibilities 8. The following conditions must be met by the processor for this exemption to apply: 8.1. Sampling must be undertaken in accordance with Australian Standard 1141 Methods for sampling and testing aggregates (or equivalent). Sampling and information on sample storage and preparation must be detailed in a written sampling plan. 8.2. The "batch process" recovered fines must be sampled according to the requirements listed Column 1 and Column 4 of Table 3. 8.3. Where there is a change in inputs that is likely to affect the properties of the "batch process" recovered fines, characterisation must be repeated. Blending of any materials into "batch process" recovered fines after sampling as required in Table 3 would be regarded as a change in inputs. 8.4. Processors must keep a written record of all characterisation test results for a period of three years. 8.5. Records of the quantity of "batch process" recovered fines supplied to the consumer and either the consumer's name and address or the registration details of the vehicle used to transport the "batch process" recovered fines, must be kept for a period of three years. 8.6. The processor of "batch process" recovered fines must provide a written statement of compliance to the consumer with each transaction, certifying that the "batch process" recovered fines complies with the relevant conditions of this exemption. 8.7. The processor of "batch process" recovered fines must make information on the latest characterisation test results available to the consumer or the EPA upon request. 8.8. The processor of "batch process" recovered fines must use due diligence to ensure that the relevant waste is utilised in applications that are consistent with the conditions of this exemption. Consumer responsibilities 9. The following conditions must be met by the consumer for this exemption to apply: 9.1. Records of the quantity of the "batch process" recovered fines received by the consumer and the suppliers' name and address must be kept for a period of three years. 9.2. The relevant waste must not be applied in or beneath water including groundwater. 9.3. The consumer must land apply the relevant waste within a reasonable period of time. Chemical and other material property requirements 10. This Notice of Exemption only applies to "batch process" recovered fines where the chemical and other attributes listed in Column 1 of Table 2 comply with the chemical concentrations and other values listed in Column 2, Column 3 and Column 4 of Table 2, when analysed according to test methods specified in Column 5 of Table 2. … Sampling and testing requirements 11. This Notice of Exemption only applies to "batch process" recovered fines sampled according to the requirements in Table 3. Table 3 Column 1 Column 2 Column 3 Column 4 Validation Characterisation frequency Routine sampling frequency Once off sampling frequency 10 composite samples per 400 tonnes. No reduction in the frequency of sampling is permitted (i.e. no prorated sampling). Not applicable Not applicable Required …

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Waste Avoidance and Resource Recovery Act 2001

Grafil referred to the Waste Avoidance and Resource Recovery Act 2001 (WARR Act ) which provides as follows: Part 1 Preliminary … 3 Objects of Act The objects of this Act are as follows: (a) to encourage the most efficient use of resources and to reduce environmental harm in accordance with the principles of ecologically sustainable development, (b) to ensure that resource management options are considered against a hierarchy of the following order: (i) avoidance of unnecessary resource consumption, (ii) resource recovery (including reuse, reprocessing, recycling and energy recovery), (iii) disposal, (c) to provide for the continual reduction in waste generation, (d) to minimise the consumption of natural resources and the final disposal of waste by encouraging the avoidance of waste and the reuse and recycling of waste, (e) to ensure that industry shares with the community the responsibility for reducing and dealing with waste, (f) to ensure the efficient funding of waste and resource management planning, programs and service delivery, (g) to achieve integrated waste and resource management planning, programs and service delivery on a State-wide basis, (h) to assist in the achievement of the objectives of the Protection of the Environment Operations Act 1997. … Part 2 Functions of Director-General … 6 Functions of Director-General (1) The functions of the Director-General are as follows: (a) to develop, implement or co-ordinate the implementation of (and evaluate strategies and programs for State-wide achievement of) government policy objectives in respect of: (i) resource efficiency and waste reduction and management in relation to regions, industry sectors or material types, and (ii) community education and awareness in relation to resource efficiency and waste reduction and management, and (iii) programs for the prevention of litter and illegal dumping, and (iv) market development for recovered resources and recycled material, and (v) information dissemination, … Part 3 Waste strategies 12 Development of waste strategies (1) The EPA is to develop a waste strategy for the State. (2) A waste strategy: (a) is to be based on continuous improvement and benchmarked against international best practice, and (b) is to include targets for waste reduction, resource recovery and the diversion of waste from landfill disposal, developed by an expert reference group appointed by the EPA. (3) A waste strategy does not take effect until it is adopted by the EPA. (4) (Repealed). (5) After the adoption of the first waste strategy, subsequent waste strategies, to replace existing waste strategies, are to be developed at intervals of not more than 5 years. (6) For the purpose of developing any waste strategy, the adequacy of the waste strategy is, if appropriate, to be assessed by means including the technique known as life cycle analysis. (7) Before adopting a waste strategy, the EPA: (a) must cause notice of the proposed strategy to be published in a daily newspaper circulating throughout the State, and (b) must cause copies of the proposed strategy to be made available for public inspection on the Internet and at the head office of the EPA, and (c) must allow a period of at least 28 days for members of the public to send written comments to the EPA in relation to the proposed strategy, and (d) must take any such comments into consideration.
When the WARR Act was first enacted, it created a statutory body called "Resource NSW". Resource NSW was abolished in amendments made to the WARR Act by the Statute Law (Miscellaneous Provisions) Act (No 2) 2003 which came into force on 27 November 2003. The amendments imposed the ongoing responsibility of implementing waste avoidance and resource recovery strategies under the WARR Act on the Director-General of the EPA.

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Waste strategy documents

Grafil tendered three waste strategy documents created under the WARR Act. The EPA objected to the tender on the grounds of relevance. As will become clear I consider these documents are relevant to the statutory construction tasks I undertake below. The Waste Avoidance and Resource Recovery Strategy 2003 (WARR Strategy 2003) (Exhibit 35) was developed by Resource NSW. The WARR Strategy 2003 stated plans and targets to be achieved within New South Wales (NSW) for the prevention and avoidance of waste by encouraging re-use and recycling. The WARR Strategy 2003 identified three main areas producing waste being the municipal sector, the commercial and industrial sector and the construction and demolition sector. It specified targets for waste avoidance and resource recovery and in particular sought to increase recovery and utilisation of materials from the construction and demolition sector from 65 percent to 76 percent by 2014.
In May 2006 the definition of "waste" in the POEO Act was amended to include par (d). The Waste Avoidance and Resource Recovery Strategy 2007 (WARR Strategy 2007) (Exhibit 36) updated the WARR Strategy 2003. Significantly for the present case the WARR Strategy 2007 aimed to support regulation under the POEO Act to enable certain waste materials to be used as fuel or to be applied to land by exempting materials from the regulatory requirements for waste. The WARR Strategy 2007 explained the connection between the amendment to the definition of "waste" in the POEO Act through the inclusion of par (d) and the soon to be introduced resource recovery exemptions. Waste falling within par (d) would be exempted from the POEO Act requirements for waste where such waste was beneficially applied, did not cause harm and was fit for purpose. The amendment to the definition was intended to provide greater certainty to processors involved in resource recovery.
The Waste Avoidance and Resource Recovery Strategy Progress Report 2012-13 (WARR Strategy Progress Report) (Exhibit 37) reported improvements made in avoiding and recovering waste and reducing litter and illegal dumping. It also highlighted areas which needed greater focus to achieve the targets established in the WARR Strategy 2007. The WARR Strategy Progress Report noted that the resource recovery exemptions were "…genuine, effective and pose[d] minimal risk of harm to the environment or human health…[t]his has allowed over 2.6 million tonnes of waste to be beneficially reused" since 2008 (p 28).

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List of affidavits

The EPA read the following affidavits: 1. Ms Bell environment officer with the EPA affirmed 2 August 2016; 2. Mr Bourne senior operations officer with the EPA affirmed 28 April 2016; 3. Ms Groves regional operations officer with the EPA affirmed 25 February 2016; 4. Mr James unit head waste compliance and former investigator with the EPA sworn 29 April 2016 and 9 August 2016; 5. Mr Jamieson regional operations unit head with the EPA sworn 6 May 2016; 6. Ms Lange environment officer with the EPA affirmed 30 August 2016; 7. Ms Moore senior operations officer with the EPA sworn 27 April 2016, 5 August 2016, 19 September 2016 and 21 October 2016; 8. Dr Prifti unit head with the EPA sworn 2 August 2016 and 23 November 2016; 9. Ms Rose environment officer with the EPA affirmed 29 July 2016; 10. Ms Withnall project officer with the EPA affirmed 28 July 2016; 11. Mr Wade investigator with the Office of Environment and Heritage (OEH) sworn 21 July 2016; 12. Ms Blefari senior environmental scientist with AECOM Australia Pty Ltd (AECOM) sworn 1 September 2016; 13. Mr Dean environmental scientist with AECOM affirmed 31 August 2016; 14. Mr Fifield engineering geologist with AECOM affirmed 31 August 2016; 15. Mr Walker senior engineering geologist with AECOM sworn 1 September 2016; 16. Dr Martens civil and environmental engineer with Martens & Associates Pty Ltd (Martens & Associates) sworn 20 September 2016; and 17. Mr Brunskill registered surveyor with BMA affirmed 15 November 2017; 18. Mr McClenahan registered surveyor with BMA, affirmed 1 September 2016 and 15 November 2017; 19. Mr Mulligan director of Mullown Pty Ltd (Mullown) affirmed 5 October 2016; 20. Mr Sneddon, former director AH & PJ Sneddon Bulk Haulage Pty Ltd (Sneddons) affirmed 5 October 2016; 21. Mr Ulizzi, managing director of Aussie Skips (NSW) Pty Ltd (Aussie Skips) sworn 13 September 2016; 22. Mr Ryan landfill operator and former recycling sales manager with the Bingo Group (Bingo) affirmed 7 October 2016; 23. Mr Wickham governance manager of Port Stephens Council (the Council) sworn 1 August 2016; 24. Mr Holm executive director of resources assessments and compliance with the Department of Planning and Infrastructure (the Department) affirmed 28 July 2016.

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Development history of Grafil's operations

Under the Port Stephens Local Environmental Plan 2000 (PLEP) Lot 8 is zoned 1(a) Rural Agriculture, under which specified development is permissible with development consent.
Grafil was incorporated on 18 August 1981. An Australian Security and Investments Commission (ASIC) company search showed the directors of Grafil as Mr Mackenzie and Mr Bruce Mackenzie, Mr Mackenzie's father, for the entirety of the charge period. Grafil conducted operations on Lot 8 and Lot 102 DP 1017462 (Lot 102). A Land and Property Information (LPI) search showed that Mr Mackenzie and Mr Bruce Mackenzie became the registered proprietors as tenants in common of Lot 8 on 21 October 1993. A further LPI search showed that Grafil was the registered proprietor of Lot 102.
An ASIC business name search showed that Grafil trades under the name Macka's Sand and Soil Supplies (Macka's Sand and Soil). Its registered business address is 2684 Nelson Bay Road Salt Ash which covers Lots 8 and 102 and is located at the end of Oakvale Drive. Lot 8 benefits from a development consent granted in 1977 (the 1977 consent) for the extraction of sand. A copy of the 1977 consent was annexed to Mr Jamieson's affidavit sworn 6 May 2016. Grafil produces different grades of sand for purposes such as horticulture, turf grass, building and construction (ROI with Mr Mackenzie dated 11 June 2014 in Exhibit A). Grafil was issued EPL 12108 for Lot 8 on 31 May 2005. Under EPL 12108 Grafil was permitted to conduct "land based extractive activity" and "crushing grinding or separating works" to operate as a sand mine. The company search, business name search and EPL 12108 were in Exhibit A.
Mr Mackenzie and Mr Bruce Mackenzie were also the registered proprietors as tenants in common of Lot 3 DP 739188 (Lot 3). B & R B Mackenzie FT Pty Ltd was the registered proprietor of the following properties: Lot 4 DP 1121457 (Lot 4), Lot 1 DP 117679 (Lot 1), Lot 810 DP 1008279 (Lot 810), Lot 58 DP 753192 (Lot 58), Lot 122 DP 753192 (Lot 122), Lot 12 DP 1205628 (Lot 12) and Lot 2 DP 308610 (Lot 2). Copies of all transfers and LPI documents were in Exhibit A.

[25]

Macka's Sand Pty Ltd

An ASIC company search (in Exhibit C) showed that Macka's Sand Pty Ltd (Macka's Sand) was incorporated on 29 November 2006 and that Mr Mackenzie and Mr Bruce Mackenzie were directors for the entirety of the charge period. Macka's Sand extracts sand on Lots 218 and 220 which is then processed by Grafil trading as Macka's Sand and Soil. In his ROI with the EPA dated 11 June 2014 (the second ROI) Mr Mackenzie stated that the primary business of Grafil and Macka's Sand was the supply of sand and sand products to the Sydney region. The nature of these operations meant that trucks frequently entered, picked up and deposited material on the land owned by the two businesses.
Macka's Sand was issued EPL 13218 for Lots 218 and 220 on 30 November 2009 a copy of which was in Exhibit A. Lots 218 and 220 are owned by the Worimi Local Aboriginal Land Council. The LPI title searches for Lots 218 and 220 were in Exhibit A. A map showing Lots 8 and 102 (to which EPL 12108 applied, shown in red) and Lots 218 and 220 (to which EPL 13218 applied, shown in blue) (in Exhibit A) is shown below. EPL 13218 was varied on 19 January 2012 and 1 February 2013. Macka's Sand was also granted a permit under the Hunter Water (Special Areas) Regulation 2003 for the extraction of sand in relation to EPL 13218. Copies of the variations and the permit were in Exhibit C.
Mr Holm's affidavit affirmed 28 July 2016 provided details of the Pt 3A approval obtained by Macka's Sand for major project 08-0142. Macka's Sand made application 08-0142, known as "Macka's Sand Project" on 29 October 2008. It received Pt 3A approval for application 08-0142 on 20 September 2009. The approval allowed for the extraction of sand on Lots 218 and 220 and the creation of access roads across Lot 3 and Lot 8 (owned by Mr Mackenzie and Mr Bruce Mackenzie); Lot 227 DP 1097995 (owned by the Worimi Local Aboriginal Land Council); and Lot 13 DP 753192 and Lot 101 DP 753192 (an agreement existed with the owners of these lots to allow Macka's Sand access to Lot 218). The approval also required Macka's Sand to upgrade Lavis Lane which formed part of the access road to Lot 218 within six months of commencing operations on Lot 218. The exhibit to Mr Holm's affidavit (Exhibit 1H) contained the Pt 3A application, preliminary assessment and approval for application 08-0142.
Two modifications were made to application 08-0142, details of which were in Exhibit 1H. On 18 October 2012 Macka's Sand requested an alternate access road across Lots 4, 1, 810, 58 and 122 (the first modification). The first modification was approved on 30 September 2013.
On 20 July 2015 the Department received a further request to modify application 08-0142 (the second modification). Amongst other things, the modification requested that an access road cross Lots 1-3 DP 118072. The second modification was approved on 15 March 2016. The consolidated approval was Exhibit 34.
In cross-examination Mr Holm agreed that it was common practice for the Department to keep a consolidated approval. He agreed that where an approval had been modified the modifications were shown in different colours on the consolidated approval. Mr Holm agreed Exhibit 34 was the consolidated approval for application 08-0142 showing the first modification in red and the second modification in blue.
Mr Wickham in his affidavit sworn 1 August 2016 stated that the Council received a request for council documents in May 2016. Four documents were produced and were exhibited to Mr Wickham's affidavit (Exhibit 1K): 1. a copy of Mr Wickham's delegation under s 150 of the EPA Act, authorising him to certify documents; 2. the PLEP historical version for 15 June 2012 to 4 July 2013; 3. an extract from the Council's GIS mapping system showing the PLEP zoning map historical version for 29 October 2012 to 15 May 2013; and 4. the Council's Development Control Plan in force between 29 October 2012 to 15 May 2013.

[26]

Grafil's dealings with the EPA and the Council 2009 to March 2013

Mr Jamieson regional operations unit head with the EPA outlined Grafil's dealings with the EPA in his affidavit sworn 6 May 2016. On 25 November 2009 a member of Mr Jamieson's team, Mr Hughes, inspected Lot 220. On 8 November 2010 Mr Howat of the EPA and Mr Jamieson inspected Lot 8 and Lot 220. Mr Jamieson took four photographs during the inspection which were annexed to his affidavit. Mr Howat and Mr Jamieson then inspected Lot 8 where they observed stockpiles of woodchips and chicken manure.
In a letter dated 23 December 2010 Mr Jamieson wrote to Mr Mackenzie about the EPA's concerns with respect to the woodchips and chicken manure stockpiles and requesting details of the current and proposed future site operations. By June 2011 a response to Mr Jamieson's letter of 23 December 2010 had not been received. A follow up letter was sent on 1 June 2011. The EPA received a letter dated 28 June 2011 from Mr Jamieson director of Umwelt (Australia) Pty Ltd (Umwelt) on behalf of Grafil (Mr Jamieson of the EPA and Mr Jamieson of Umwelt are unrelated). The letter stated that the woodchips and chicken manure were to be combined with other extracted materials to sell.
On 9 May 2012 Mr Jamieson and another member of the EPA conducted a further inspection of Lot 8. Mr Jamieson observed a number of stockpiles of bricks and what appeared to be building and demolition waste. Mr Jamieson asked Mr Mackenzie about whether Grafil's development consent permitted the storage of building and demolition waste. Mr Mackenzie said he thought that the old development consent [the 1977 consent] for the quarry allowed Grafil to keep such material. Mr Jamieson stated it was unlikely the consent permitted such material and asked Mr Mackenzie how he intended to use the material. Mr Mackenzie said he intended to remove the material from Lot 8. In the past Mr Mackenzie had crushed and on-sold material of this nature. At the end of the inspection Mr Jamieson informed Mr Mackenzie that the materials he had on-site (being the chicken manure, green waste and building and demolition waste) were deemed "wastes". He stated that he would need to check with the Council about issues regarding consent to have them at Lot 8.
On 30 May 2012 Mr Jamieson sent a letter to the Council asking whether Grafil had development consent or existing use rights permitting the storage and use of waste products. The Council sent a letter in reply dated 6 August 2012 stating that it had visited Lot 8 on 10 July 2012 with Mr Bruce Mackenzie. The letter stated that the Council's officers had not observed any stockpiles of chicken manure, green waste or building waste during the inspection on 10 July 2012. A large heap of concrete waste (approximately 30 tonnes) was observed during the Council's inspection which appeared to be historical as it was partially covered with sand and vegetation. The Council advised that the 1977 consent was issued for the extraction of sand and that no consents were issued in relation to Lot 8 for activities such as waste management. The letter stated that Mr Bruce Mackenzie had been advised by the Council that the storage of waste comprising bricks, concrete or building waste was not ancillary to the sand extraction activities on Lot 8. On 3 September 2012 the Council emailed to the EPA a copy of the 1977 consent. A copy of the 1977 Consent was annexed to Mr Jamieson's affidavit.
On 17 December 2012, the EPA sent a letter to Grafil attaching a draft notice of licence variation in relation to EPL 12108. The cover letter to the draft notice of licence variation stated that the purpose of the variation was to provide certainty as to materials permitted to be used as ancillary to sand extraction activities. The draft licence variation included a new condition prohibiting the use and storage of building and demolition waste and green waste on Lot 8.
Umwelt replied to the EPA's letter of 17 December 2012 on behalf of Grafil on 25 January 2013, stating that Grafil was in consultation with the Council regarding the consent. The Council was due to visit Lot 8 in the week commencing Monday 28 January 2013 to provide advice as to ancillary activities and potential for an integrated development assessment for any activities which could be permitted. The letter referred to the 2,500 tonne limit on waste able to be stored under Sch 1 of the POEO Act. Umwelt stated that Grafil received and processed significantly less than the legislated volumes set out in Sch 1. Umwelt requested that the proposed licence variation be held over pending further advice from the Council.
On 15 March 2013 the EPA had not received a response from Grafil and sent a follow up letter. In the letter Mr Jamieson stated that the EPA had received correspondence from the Council stating that "wastes" could not be used on Lot 8 and only small amounts of chicken manure were considered ancillary to the quarrying operations. The letter requested that Grafil provide written advice to the EPA about its intention to use the waste material and if a development application (DA) was going to be submitted. On 2 April 2013 Mr Mackenzie as a director of Grafil wrote to the EPA advising that a development assessment was being conducted for the use of waste materials and the corresponding DA would be submitted to the Council once completed. In the letter Mr Mackenzie stated that: As the use of materials designated as waste is integral to ongoing operations, Grafil Pty Ltd is seeking to continue the use of materials designated as waste on site as discussed in the letter from Umwelt dated 25 January 2013. In order to ensure ongoing regulatory compliance preliminary discussions with Port Stephens Council were undertaken during February 2013. Since that time Grafil has engaged Cliff Johnson to undertake an Integrated Development Assessment for the use of materials designated as waste on site. The corresponding development application is currently being prepared and will be submitted to Council once complete.
In May 2013 Mr Jamieson was advised that the EPA Waste and Resource Recovery Branch were investigating Grafil. He understood that the EPA did not issue the licence variation.

[28]

Operation Trojan

The investigation of Grafil resulted from a larger EPA investigation known as Operation Trojan. No mention was made of Operation Trojan in any of the EPA officers' affidavits. It was the subject of cross-examination by Grafil's counsel. In cross-examination Ms Moore was asked about the commencement of Operation Trojan. She said that her earliest memory of Operation Trojan was in October 2012. It was possible that Operation Trojan had commenced prior to October 2012. Ms Moore was asked when she was acting unit head of the waste compliance Hunter team for the EPA. She was in the role from approximately January 2012 to December 2014. Ms Moore said that Operation Trojan had not commenced at the time she began her position as acting unit head.
Ms Moore was asked about the purpose of Operation Trojan in cross-examination. She said that Operation Trojan involved following trucks from various recycling centres in Sydney to ascertain where outgoing material was being sent. Ms Moore was personally involved in surveillance of Always Recycling at Chester Hill and the Auburn Recycling Centre Pty Ltd (ARC) at Auburn (a premises owned and run by Bingo). Ms Moore was also shown notebook entries she had made dated 28 November 2012, 15 May 2013, 17 May 2013 and 13 June 2013 where she had observed trucks leaving recycling centres in Sydney (Exhibit 8). She agreed that trucks were going to sites other than Lot 8. In response to questioning in cross-examination about why she had not included information about her involvement in surveillance prior to the search and seizure operation on 15 May 2013 at Lot 8 (commencing below at [62], Ms Moore stated that she did not believe this surveillance was related to the investigation which led to the commencement of proceedings against Grafil.
Other EPA officers were also asked about Operation Trojan in cross-examination. Ms Rose said that she had been involved in surveillance exercises in the Newcastle area as part of Operation Trojan. She had not been involved in surveillance of recycling centres in Sydney. She had been directed not to mention Operation Trojan in her affidavit. Ms Rose did not know the dates when she first participated in Operation Trojan. In her affidavit affirmed 25 February 2016 Ms Groves said that prior to May 2013 she had conducted surveillance of trucks leaving the Homebush Bay Recycling Centre Pty Ltd (HBRC) and followed them to a property at the end of Oakvale [Drive] Salt Ash being Lots 8 and 102. In response to questioning in cross-examination as to why there was no mention of Operation Trojan in his affidavit Mr Bourne said he could not recall being directed not to mention Operation Trojan.

[30]

Surveillance of Lot 8

Mr James' affidavit sworn 29 April 2016 detailed further surveillance operations relating to Grafil. On 12 November 2012 Mr James and Mr Beaumont investigator with the OEH conducted surveillance of Lot 8 from an adjoining area of bushland. Mr James observed a number of large stockpiles of sand, a large shed and large areas of surface water. Five photographs were taken during this surveillance exercise and were in Exhibit K.
On 15 November 2012 Mr James and Mr Bentley chief investigator with the OEH conducted further surveillance at the rear of Lot 8 from adjoining bushland. Mr James observed the following: 1. a white truck with two silver trailers travelling through the eastern area of Lot 8; 2. a white truck with a red stripe and "Maddox Haulage" signage with two silver trailers depositing material on Lot 8; 3. a white truck with "Papworth" signage with two silver trailers and green tarpaulins depositing material on Lot 8; 4. a white truck with two silver trailers depositing material on Lot 8; 5. a white prime mover registration MAD512 with two silver trailers depositing material on Lot 8; 6. a yellow Volvo bulldozer moving the material deposited by the truck; and 7. an orange and yellow prime mover with two silver trailers depositing material on Lot 8.
A number of photographs were taken during this surveillance exercise and were in Exhibit K, with electronic and A3 copies in Exhibit L.
In his affidavit sworn 29 April 2016 Mr James detailed further surveillance at the rear of Lot 8 undertaken by him and Mr Bourne on 27 November 2012. Mr James took a number of photographs which were in Exhibit K with A3 copies in Exhibit L. Mr James observed the following: 1. a white prime mover with two white trailers and red tarpaulins depositing material on Lot 8; 2. a white truck registration MUL272 with two silver trailers depositing material on Lot 8; 3. a white truck with two silver trailers and red tarpaulins with "Macka's" signage depositing material on Lot 8; 4. a white prime mover registration MAD408 with two white trailers and red tarpaulins depositing material on Lot 8; 5. two yellow trucks with "Sneddon" signage, both with two silver trailers depositing material on Lot 8; 6. a yellow Volvo bulldozer loaded two yellow Volvo dump trucks with building and demolition material; 7. a truck with two silver trailers depositing material on Lot 8; and 8. a white Kenworth prime mover with "Maddox Haulage" signage with two white and silver trailers with red tarpaulins depositing material on Lot 8.
In his affidavit affirmed 28 April 2016 Mr Bourne deposed that he took 270 photographs during the surveillance exercise on 27 November 2012. Exhibit J comprised a selection of 15 of these photographs showing a truck with registration MUL272 depositing its contents. Mr Bourne's affidavit recorded three vehicles depositing material on Lot 8. The first vehicle tipped a brown material mixed with fragments of white material onto a stockpile located to the east of a large shed on Lot 8 which later became known as Stockpile 1. The second vehicle tipped brown-grey material between the large shed on site and the sand washing operations. The third vehicle tipped dark grey material near aggregate stockpiles.
In cross-examination Mr Bourne was shown extracts from his Operation Trojan notebook which was part of Exhibit 6. The extracts made reference to notes taken on a dictaphone during the surveillance exercise on 27 November 2012. The dictaphone notes had been transferred onto a USB stick and was Exhibit 13. Mr Bourne was asked whether he had listened to his dictaphone notes in preparing his affidavit and agreed that he had listened to them. The notes Mr Bourne had made in relation to trucks tipping on Lot 8 were included in his affidavit, as summarised at [58] above. It was put to Mr Bourne that on the dictaphone notes, he had recorded the first vehicle as tipping "…a brown soil, it appears" but in his affidavit recorded the vehicle as tipping "a brown material mixed with fragments of white material". Mr Bourne said he added to his description based on photographs he took at Lot 8. Mr Bourne disagreed with the suggestion that he had changed his description of the material as it was too favourable to the defendants.
Copies of pages from Mr Bourne's Operation Trojan notebook (Exhibit 14) showed that covert surveillance at the rear of Lot 8 had taken place on 28 November 2012 and 7, 8 and 9 May 2013 as part of Operation Trojan.
In the course of proceedings a hard drive containing images obtained from two static cameras placed outside Lot 8 were disclosed by the EPA. A selection of these photographs dated 13 and 14 May 2013 were in Exhibit 1M.

[31]

Search and seizure operation at Lot 8 on 15 May 2013

The EPA conducted a search and seizure operation at Lot 8 on 15 May 2013. Prior to entering on 15 May 2013 EPA officers conducted covert surveillance of trucks entering Lot 8. Ms Groves in her affidavit affirmed 25 February 2016 said that she observed three trucks entering Lot 8 but as none deposited material on Stockpiles 1 and 2 no further detail was necessary. Ms Withnall in her affidavit affirmed 28 July 2016 and Mr Bourne in his affidavit affirmed 28 April 2016 both stated that they were involved in covert surveillance of waste transport vehicles on 15 May 2013. They did not note any vehicles in particular. Mr Bourne took a number of photographs, two of which showed Stockpiles 1 and 2 from the southern boundary of Lot 8 and formed Exhibit 17. In cross-examination neither Ms Moore nor Mr Bourne recalled seeing any trucks deposit material on Lot 8 on 15 May 2013.
The following EPA officers were present during the search and seizure operation at Lot 8 on 15 May 2013: Ms Moore, Mr Bourne, Mr James, Ms Rose, Ms Bell, Ms Groves and Ms Withnall.
Mr James' affidavit sworn 29 April 2016 also recorded the following people present: Mr Geri senior manager of forensic information technology with Ferrier Hodgson and a team of environmental consultants from URS Australia Pty Ltd (which later became AECOM).
Upon entering Lot 8 Mr Bourne observed two stockpiles appearing to be greatly in excess of 4,250 tonnes, consisting of dark brown soil mixed with bricks, concrete, glass, plastic, synthetic mineral fibres, concrete with reinforcing bar, timber and tiles. These stockpiles became known as Stockpiles 1 and 2.
As detailed in the affidavits of Ms Moore sworn 27 April 2016 and Mr James sworn 29 April 2016, Ms Moore and Mr James spoke with Mr Mackenzie upon entering Lot 8 and told him that the EPA was investigating possible illegal activity relating to the transport and receipt of waste. Mr Mackenzie said he had received some clay and crushed concrete as fill. Mr James cautioned Mr Mackenzie and gave him a copy of an occupier's notice.
Ms Rose affirmed an affidavit on 29 July 2016 in which she recorded a conversation between Ms Moore, Mr James and Mr Mackenzie. Mr James asked Mr Mackenzie if he kept any records off site. Mr Mackenzie replied that the records were in the main office located off Oakvale Drive. Mr Mackenzie explained that there was also a site office near the operational area on Lot 8. An aerial photograph of Lot 8 showing the main office, site office and Stockpiles 1 and 2 in the Operational area was annexed to Ms Bell's affidavit and formed Exhibit 15.
The EPA officers, consultants and Mr Mackenzie then travelled to the operational area of Lot 8. Ms Groves, Ms Bell and Ms Rose searched the site office at the operational area. After searching the site office they returned with Mr James and Mr Geri to the main office to continue the search and seizure.
In her affidavit affirmed 2 August 2016 Ms Bell stated that when she had driven with Mr James and Ms Rose to the operational area Stockpile 1 appeared to contain a range of different sized fragments of brick, tile, plastics, metals and timber. These contaminants were high in concentration in some parts.
In cross-examination Ms Bell was asked about her observations of Stockpile 1. Annexed to Ms Bell's affidavit were notes she had taken during the search and seizure operation on 15 May 2013. Ms Bell had taken notes to the effect that Stockpile 1 contained "fragments of contaminants such as brick, tile, plastics, metals, timber and other foreign objects". In her affidavit, Ms Bell had stated she observed "a range of different size fragments, of brick, tile, plastics, metals and timber scattered across its surface. These contaminants were high in concentration in some parts of Stockpile 1." It was suggested in cross-examination to Ms Bell that she did not refer to the high concentration of these fragments in her notes because she did not observe them at the time. Ms Bell said that she had not written a description at the time as she believed she had taken a photograph of it. She said it was possible that she had added the comment about the contaminants being high in concentration when preparing her affidavit in April 2016.
Ms Bell, Mr James, Ms Rose and Ms Moore then went to Stockpile 2. There were fragments of brick, tile, plastics, metals and timber blended throughout the whole stockpile. The officers then walked behind the stockpiles. Ms Bell observed a sand channel along the southern perimeter with brown liquid inside. There was a light odour of chicken manure at this location. Walking towards the chicken manure stockpile there was a strong odour of manure and a presence of flies and birds. From the manure stockpile, Ms Bell observed a loader filling sand from the central sand stockpile into bays and later into a truck and dog with "Papworth" signage. Ms Bell took photographs from the western side of Lot 8 which were annexed to her affidavit.
Mr Bourne, Ms Withnall and Mr Mackenzie remained at the operational area for a detailed exploration of the site.
In his affidavit affirmed 28 April 2016 Mr Bourne said that he conducted an ROI with Mr Mackenzie during the search and seizure on 15 May 2013 (the first ROI). Ms Withnall videoed the ROI. Mr Bourne cautioned Mr Mackenzie and proceeded to walk around the operational area. Mr Mackenzie identified the materials in the various stockpiles in the operational area and stated where the material had originated. During the ROI Mr Bourne and Mr Mackenzie marked up a mud map of the stockpiles in the operational area.
Following the first ROI Mr Bourne prepared a diagram of Mr Mackenzie's stockpile descriptions. Mr Bourne and Ms Withnall created an additional mud map with notes about the stockpiles. Mr Bourne prepared a further diagram which combined Mr Mackenzie's stockpile descriptions and the notes taken by Ms Withnall and him. The two mud maps were in Exhibit E and the two diagrams were also in Exhibit E. Following the first ROI Mr Bourne instructed the URS consultants to commence sampling and Mr Fisher and Mr Brunskill to commence a volumetric and topographic site survey. All EPA officers and consultants left Lot 8 by 5.45pm.
In cross-examination of Mr Bourne the video of the first ROI was played to the Court. Mr Bourne was also shown a transcript of the first ROI. The video and transcript were in Exhibit E. Mr Bourne was asked a number of questions about how the quality of the audio had been affected by wind interference on the day and how this impacted the accuracy of the transcript. A number of instances where the audio on the video sounded different to the transcript were put to Mr Bourne. Mr Bourne agreed that there were differences in some instances and disagreed with others.
Ms Withnall in her affidavit affirmed 28 July 2016 said she observed Mr Mackenzie being cautioned by Mr Bourne at the commencement of the first ROI at 9.50am on 15 May 2013. During the first ROI Ms Withnall paused the video recording to enable Mr Mackenzie to take a phone call and resumed recording once the phone call had ended. Ms Withnall observed Mr Bourne and Mr Mackenzie mark up a mud map of the location of the stockpiles. During the first ROI Ms Withnall observed two large stockpiles consisting of bricks, concrete, glass, plastic, pottery, concrete with reinforcing bar, wood and other materials. The soil profile of Lot 8, a coarse yellow sand, did not match the soil profile of the stockpiles. The first ROI ended at 10.55am.
Mr Bourne and Ms Withnall then did a further walk-around of the operational area during which they took photographs and made notes about the stockpiles. Ms Withnall then observed Mr Bourne make a phone call to Mr James. He then spoke to Mr Single, an employee of Grafil. Mr Bourne and Ms Withnall completed another site walk after the interview had finished.
In response to questions in cross-examination about whether she had listened to the audio of the first ROI Ms Withnall said she had not listened to the audio or read the transcript of the first ROI. She was not aware that large sections of the audio were inaudible due to wind interference. Ms Withnall had been employed by the EPA for the entire period since 15 May 2013.
In cross-examination Ms Withnall was asked whether the notes she had taken regarding the first ROI were made before or after the ROI. Ms Withnall said that she thought she had made notes after the first ROI. It was put to Ms Withnall that she would not have an independent recollection of the words spoken by Mr Mackenzie or Mr Bourne during the first ROI when preparing her affidavit and that she would need to refer to the notes she had made. Ms Withnall said she prepared the affidavit immediately after leaving the site and specifically recorded the caution given by Mr Bourne to Mr Mackenzie, as she had been told this was important in prior training. Ms Withnall then corrected her statement that she had prepared her affidavit immediately after the search, saying that she had prepared a Word document with notes immediately after the event which she then used to write her affidavit. She agreed that the Word document was not produced in response to the subpoena requesting EPA officer notes about the investigation.
In cross-examination Ms Withnall disagreed with the suggestion that she had not heard Mr Bourne give the caution to Mr Mackenzie. She also disagreed with the suggestion that the first time Mr Mackenzie was cautioned was after the video resumed following Mr Mackenzie taking a phone call. Ms Withnall said she recalled hearing Mr Bourne caution Mr Mackenzie before the video commenced. She did not know why the caution had not been recorded on the video.
Ms Moore stated in her affidavit sworn 27 April 2016 that during the first ROI she, Mr James, Ms Groves, Ms Bell and Ms Rose went to search the main office as detailed in [86] below. After searching the main office she and Mr James went back to the operational area. Ms Moore made the following observations about the operational area: 1. there was a very large stockpile or mound of waste (Stockpile 1) which contained earth-like material, soil, brick, tile, concrete, plastic, fragments of fibreboard (suspected to be asbestos), glass, a laundry hose and terracotta to the east of a large open storage shed; 2. Stockpile 1 was in a ramp-like shape and appeared to have been compacted along the centre line. The sides fell away steeply and had loose material; 3. at the southern end of Stockpile 1 were 30-40 small stockpiles of various waste materials. Many of these stockpiles were comprised of earth-like materials mixed with brick, concrete, plastic and metal. These smaller stockpiles appeared to have a higher content of foreign materials than earth-like material; 4. Stockpile 1 was next to a waterway which became known as the Perimeter Drain. Stockpile 1 was approximately 100 metres long, up to 40 metres wide and was six to seven metres high at its highest point; 5. to the west of the storage shed was a stockpile of waste material (Stockpile 2) including earth-like material, rocks, pieces of fibreboard, Masonite, timber, plastic, brick, concrete and glass; 6. Stockpile 2 was also in a ramp-like shape. It appeared that trucks had driven up the ramp to deposit material. Stockpile 2 was about five metres high, about 40 metres long and 30 metres wide.
Additional observations about what Ms Moore saw on Lot 8 are not material to the charges and are not therefore included.
In his affidavit sworn 29 April 2016 Mr James described a conversation he had with Mr Mackenzie during the search and seizure operation on 15 May 2013. Mr James asked Mr Mackenzie about which transporters had been supplying material from Sydney to Lot 8. Mr Mackenzie said he had received material from Maddox, Mullown, Sneddons, Papworth and Bulk Logistics. Mr James asked if Mr Mackenzie had received any paperwork from the transporters. Mr Mackenzie said he had provided "…a notice to one or two of the operators in the past." Mr Mackenzie then found a file in the main office which contained a notice under s 143 of the POEO Act (the s 143 notice). Mr James took a photograph of the file.
Mr James outlined a further conversation in his affidavit sworn 29 April 2016 between himself, Ms Moore and Mr Mackenzie. Mr Mackenzie said he was shocked at what the EPA had found. He said that Mr Jamieson of the EPA had been to Lot 8 in the last six months and had not mentioned any problems with the material. In Mr James' affidavit sworn 29 April 2016 and Ms Moore's affidavit sworn 27 April 2016 it was deposed that Mr Mackenzie then received a text message saying "please call Adrian at Bingo…it's urgent". Mr Mackenzie did not know Adrian at Bingo. He called Adrian and relayed the content of his conversation to Ms Moore.

[32]

Documents seized from Grafil

Ms Groves, Ms Bell and Ms Rose were responsible for seizing documents during the search and seizure operation. They travelled with the other EPA officers to the operational area where they searched the site office. Ms Bell took a number of photographs during the search and seizure operation, including photographs of the interior and exterior of the site office. All photographs taken by Ms Bell were in Exhibit H. A selection of these photographs formed Exhibit 16. Ms Rose seized one document from the site office. Ms Rose sketched a mud map of the site office which was in Exhibit G.
Ms Groves, Ms Bell and Ms Rose then travelled with Mr James to the main office located off Oakvale Drive. At the main office Ms Bell witnessed a conversation between Mr Bruce Mackenzie, Ms Moore and Mr James. She could not recall the content of the conversation. Ms Bell took photographs of the interior and exterior of the main office which were in Exhibit H. Ms Groves sketched a mud map of the main office which was annexed to her affidavit affirmed 25 February 2016. A representative from Ferrier Hodgkin named Robert copied the computers in the main office.
Ms Rose recorded all documents seized in an exhibit log (in Exhibit G). Copies of all documents seized were in Exhibit 1L and were subject to a ruling under s 136 of the Evidence Act 1995 that the documents were tendered for the limited purpose of establishing that no other documents were the subject of the search and seizure operation on 15 May 2013.
In cross-examination, Ms Groves, Ms Bell and Ms Rose were asked whether they had been given a list of documents to search for during the operation. Ms Rose said that a long list of documents to search for had been provided. She could not recall who had provided the list but said that it could have been provided by Mr McElwain of the EPA, Ms Groves, Mr James or Ms Moore. Ms Rose did not refer to the list in her affidavit and did not know where the list was. Ms Bell could not recall being given a list; she was given guidance on what to search for in operational orders. Ms Bell could not recall being provided with a list of trucks to look for. She said there were identified vehicles that EPA officers were told to record. Ms Groves could not recall being given a list of documents. She received a briefing before the search and seizure operation. She said that it was standard procedure to be provided with a list of documents to assist in focusing the search during such operations.
In response to questions in cross-examination about the role of a Mr Hoyer during the search and seizure Ms Groves recalled that Mr Hoyer had worked with the EPA team during the operation. She could not remember if he was a financial auditor. Ms Groves could not recall if Operation Trojan had involved financial audits.

[36]

Search and seizure operation at Bingo premises on 15 May 2013

Mr Wade's affidavit sworn 21 July 2016 provided details of a search and seizure operation carried out at Bingo's head office in Silverwater on 15 May 2013. Mr Wade attended the Bingo head office with officers from the EPA and the NSW Police. Mr Wade had a conversation with Mr Tartak of Bingo, in which he stated that the OEH would be undertaking a search and seizure operation of the Bingo premises. He provided Mr Tartak with a copy of Pt 7 of the POEO Act and an occupier's notice which were in Exhibit M.
Mr Tartak provided Mr Wade with copies of reports from Aargus Holdings Pty Ltd (Aargus) who were environmental consultants for Bingo. Mr Wade said that he had been informed by various EPA officers that Aargus reports contained information relating to sampling and testing done at particular sites. Mr Wade could not remember at what time or by whom he had been told of this information. He believed these reports may have contained evidence relating to the investigation of illegal transport and disposal of waste and seized the reports. Copies of the reports were in Exhibit M. A copy of the exhibit log of all documents seized was also in Exhibit M. In cross-examination Mr Wade said he had recorded his discussion with Mr Tartak in an affidavit for another matter.
In cross-examination Mr Wade also confirmed that the other EPA officers present included Ms Lake, Mr Filasetti, Mr Hoyer and Mr Gavicole. He did not know if Mr Hoyer was a financial auditor. In cross-examination Mr Wade agreed that he had not precisely stated what was done during the search of the Bingo premises in his affidavit. He said this was because he had been asked to provide an affidavit only relating to the Aargus reports. Mr Wade agreed to the suggestion that Bingo's records in relation to the production and transportation of materials from recycling facilities were seized. He further agreed that to accurately recall these documents he would need to refer to a log of documents seized on that day. The field exhibit log of documents seized from the Bingo premises was in Exhibit 19.
In cross-examination Mr Wade agreed that a forensic accountant, Mr Daniel from Ferrier Hodgson, was present during the search and seizure at the Bingo premises. Images of the hard drives of one or more computers at the Bingo premises were taken a few weeks after the search and seizure. Mr Wade was not present when the images of the hard drives were taken.
In re-examination Mr Wade confirmed that Bingo commenced proceedings in the Supreme Court of New South Wales as a result of the search and seizure operation on 15 May 2013. Bingo sought an injunction restraining the EPA from accessing the materials it had seized. Some of the material was stored at a police station. The Supreme Court proceedings settled. Mr Wade was not involved in the settlement and did not know the terms of settlement.

[39]

Affidavit of Mr Mulligan

Mr Mulligan director of Mullown affirmed an affidavit on 5 October 2016. Mr Mulligan worked for Mr Sneddon until 2013. In 2013, Mullown took over a significant portion of Mr Sneddon's business.
In 2013, about 80 percent of Mullown's work involved transporting sand or soils from Lot 8 to Sydney. Mr Mulligan stated that he would only drive personally if one of his drivers was away. He has transported sand from Lot 8 for 20 years. Mullown transported material from Aussie Skips, KLF Holdings and DATS Recycling. Mullown used the material as backload filling up trucks otherwise empty on the return journey after delivery of sand to Sydney.
Mr Mulligan was told by Ben [Mr Ulizzi] from Aussie Skips that the material to be taken was recovered fines and that Aussie Skips had the paperwork for it. Aussie Skips sent Mullown a letter dated 1 March 2013 stating that the material was recovered fines (Exhibit U). Prior to this Sneddons had a letter to a similar effect.
Mullown transported material from Rozelle for Civil Plus to Lot 8. A certificate in Exhibit U classified the load as VENM. Other than this certificate Mullown had to rely on its drivers to ensure the material was clean fill.
Aussie Skips provided a s 143 notice dated 19 July 2008 it had received from Mr Mackenzie stating that Macka's Sand and Soil could receive recovered fines. As the document was dated 19 July 2008 it would have been organised through Sneddons. Mr Mulligan received the document when Mullown took over their business. The letter formed part of Exhibit U. Mr Mulligan commented on the s 143 notice he received from Aussie Skips detailed below at [134].
Mullown was paid for taking backloads by the recycling centres in Sydney. Mullown did not ask for money from Mr Mackenzie or Mr Bruce Mackenzie. Mullown would take loads of waste from KLF's Asquith premises to their Camellia premises. They would then take a load of recovered fines from Camellia to Macka's Sand and Soil. Invoices issued by Mullown to KLF were in Exhibit U and identified the price per load as $460. Each load was 20-25 tonnes. The invoices describe the load as "fill". Each came with a certificate of compliance. All loads taken from KLF were recovered fines.
The invoices issued by Aussie Skips identified the price per load as $450. Each load was 20-25 tonnes. The invoices demonstrated that each load contained "fines 9.5mm minus". All loads taken from Aussie Skips were recovered fines.
In cross-examination Mr Mulligan was shown Exhibit V, being the notice of determination of a DA relating to the use of recovered fines at Mr Hufnagl's property in Janet Parade Salt Ash. Mr Mulligan agreed to the suggestion that Mullown drivers had taken fill to the Hufnagl property during the charge period. He was aware the property had a development consent for the purpose of "Landfill for the Purposes of Stock Management". Mr Mulligan was also shown an aerial image of 1 Prices Road Millers Forest which showed a flood mound at that property (Exhibit 22). He was also shown a close up image of that flood mound with a container on top of it (Exhibit 23). Mr Mulligan agreed that Mullown had transported about 15,000-20,000 tonnes of material to 1 Prices Road to build the flood mound. Mr Mulligan was shown an aerial image of a flood mound at a property at Oakfield Road Salt Ash belonging to a Mr Sansom (Exhibit 24). He agreed that Mullown had transported recovered fines around 2012-2013 for the purpose of constructing that flood mound for which there was development consent to build a flood mound. Mr Mulligan was also shown an aerial image of his own property in Woodbury Road Millers Forest (Exhibit 25). He had built a flood mound at his property with approximately 35,000-40,000 tonnes of recovered fines and confirmed that he had a development consent to do so.

[40]

Affidavit of Mr Sneddon

Mr Sneddon former director and owner of Sneddons affirmed an affidavit on 5 October 2016. Sneddons primarily transported sand from the Hunter area to Sydney. Sneddons had collected sand from Grafil for around 10-11 years. Mr Sneddon last attended Lot 8 around December 2012 to June 2013. Mr Mulligan worked for Sneddons for around 15-16 years and was the manager for almost 10 years. He owned his own trucks under the company Mullown.
Sneddons began transporting recovered fines to Lot 8 around 2005-2006 from Tip Fast in Alexandria. Mr Mulligan spoke to someone at Macka's Sand and Soil to arrange for the material to be taken to Lot 8. Later Sneddons began transporting recovered fines from Aussie Skips.
On 13 July 2008 Mr Sneddon received a letter from Mr Mackenzie stating that Macka's Sand and Soil was happy to continue receiving material from Sydney. He discussed with Mr Mulligan whether Macka's Sand and Soil was licensed to receive the material. He did not think there was an issue due to the letter and because Mr Bruce Mackenzie was the mayor of Port Stephens.
Sneddons requested letters from Aussie Skips stating that the material to be transported complied with the CPRF exemption. On 21 December 2011 and 1 April 2012 Aussie Skips provided statements of compliance to Sneddons which were in Exhibit W. Sneddons also received statements of compliance from Aussie Skips which it passed on to Macka's Sand and Soil. All documents provided by Sneddons in response to the EPA's s 191 notice (including the s 143 notice) were in Exhibit W. Sneddons transported 20 tonne loads at a flat rate of $450 per tonne. Sneddons received the same rate for transporting from KLF, Tip N Skip and Civil Plus.
In the s 191 notice issued to Sneddons (Exhibit W) questions were asked as to how many tonnes of material had been transported by Sneddons. To determine this figure, Mr Sneddon said it was necessary to know how much was carried by Sneddons' contractors. Sneddons would invoice Mullown for work done by Sneddons' trucks. Mullown would invoice Sneddons for work done by Mullown trucks. No payment was received for tipping material at Lot 8.
In cross-examination Mr Sneddon was shown the s 143 notice described below at [132]. He confirmed that the s 143 notice said the material to be supplied to Grafil would be used for soil blending and road construction. Mr Sneddon agreed that the s 143 notice was the basis for his belief that soil blending was occurring at Lot 8.

[41]

Record of interview of Mr Gilder

Mr James interviewed Mr Gilder on 15 November 2013. Mr Gilder said the primary work of Bulk Logistics was providing sand to companies in Sydney. He would usually pick up sand from Sibelco or Macka's Sand. He also subcontracted with Maddox to take material from Sydney recycling centres. Mr Gilder had collected material from Bingo, BBR and KLF. He had not collected from Bingo in a long time. There was an oversupply of recovered fines coming from recycling centres in Sydney at the time. Mr Gilder primarily took material to Macka's Sand and Soil. He also took loads to other properties in the Medowie area. Once on Lot 8, he would deposit the load where he had been directed to do so by Mr Mackenzie.
In response to the s 191 notice issued to Bulk Logistics, Mr Gilder provided a number of invoices sent to the Sydney recyclers. Some of these were discussed during the interview. Mr James asked about a number of the invoices and the processors who issued them. Mr Gilder realised that there were invoices included from recycling centres or properties which were not the subject of the investigation.
Mr Gilder marked up a map of Lot 8, showing the fertiliser shed and stockpiles of sand. Swale drains were dug around the bottom of stockpiles to control sediment erosion. He had instructions to only bring recovered fines or ENM to Lot 8 as this is what Macka's Sand and Soil were allowed to take. Bulk Logistics had been taking material to Lot 8 from late 2010-2011 and stopped taking material in March 2013 when the EPA began its investigation. Bulk Logistics had taken loads to Lot 8 almost every day during that period. Loads were between 20-34 tonnes each. Mr Gilder looked at the EPA website after the investigation into Macka's Sand and Soil had begun to ensure the material was able to be taken to Lot 8. The material had to be suitable for rehabilitation purposes and could not exceed 2,500 tonnes. Macka's Sand and Soil did not pay for any of the material which Bulk Logistics deposited.
Bulk Logistics would receive a slip from KLF to indicate that the material being sent was compliant with the standards for recovered fines. Bingo provided paperwork for ENM it transported. BBR also supplied slips of paper to say material leaving their premises was compliant. Macka's Sand and Soil initially kept the slips provided by Bulk Logistics, but over time seemed less interested in keeping them.
Mr Gilder said that Macka's Sand and Soil would also receive material such as fertiliser, lime and chicken manure. He had never transported fertiliser or manure to Lot 8 but had taken a few loads of lime. It was suggested to Mr Gilder that Macka's Sand and Soil was receiving "bottom of the skip bin" material containing things such as shredded plastic and PVC pipe. Mr Gilder said "No. Well he would've been - they would've been off their heads if we sent up stuff like that." He said that while there might have been "…a bit of drainage pipe or something like that, perhaps, like a bit of PVC pipe or something, but you know, most of it was pretty good…"

[45]

Section 143 of the Protection of the Environment Operations Act 1997 notice

As noted in [83] above Mr Mackenzie had prepared a notice under s 143 of the POEO Act dated 17 July 2008 which stated that Macka's Sand and Soil would receive less than 15,000 [tonnes] of clay, sandstone, soil and recovered fines to be used for soil blending, road construction and landscaping. Copies of the s 143 notice were in the exhibit to Mr Mulligan's affidavit (Exhibit U) and annexed to Mr Ulizzi's affidavit and his ROI (the ROI being in Exhibit Q). A copy of the s 143 notice was also in the exhibit to Mr Sneddon's affidavit (Exhibit W) as part of Sneddons' response to the s 191 notice issued by the EPA.
In his affidavit sworn 13 September 2016 Mr Ulizzi said he had received the s 143 notice from Macka's Sand and Soil. Mr Ulizzi had received an earlier document from Macka's Sand and Soil which did not refer to recovered fines on the list of material Macka's Sand and Soil would accept. Mr Ulizzi requested that the document be amended. An amended copy was sent to him and was the copy in evidence before the Court. Mr Ulizzi also had a copy of a letter dated 13 July 2008 from Mr Mackenzie to Mr Mulligan stating Macka's Sand and Soil was "…happy to continue to receive inert fill material carried by you [Mr Mulligan] to our site at Salt Ash."
In his affidavit affirmed 5 October 2016 Mr Mulligan said he received a copy of the s 143 notice from Aussie Skips. Mr Mulligan deposed that as the document was dated 19 July 2008 it would have been organised through Sneddons rather than his business Mullown. He received the document from Sneddons when he took over that business. Mr Mulligan said that he had relied upon the s 143 notice as an indication that Macka's Sand and Soil "…could lawfully be used as a waste facility."
No mention of the s 143 notice was made in Mr Sneddon's affidavit affirmed 5 October 2016. Annexed to Mr Sneddon's affidavit was a copy of the letter dated 13 July 2008 referred to above at 133].

[47]

Mr Ulizzi (Aussie Skips)

Mr Ulizzi managing director of Aussie Skips swore an affidavit on 13 September 2016. Aussie Skips received waste from skip bins and also general construction and demolition waste. Materials such as bricks, concrete and rocks were recycled at yards such as Boral or Gow Street Recyclers. Materials such as steel, copper, aluminium, lead, brass and mixed lead would be sent to other recyclers. Recovered fines would be sent to places such as Grafil. All residual material that could not be recycled would be sent to Veolia Landfill.
To process incoming waste, Aussie Skips had labourers manually pick up smaller items and machinery would pick up larger items. Bricks, concrete, soil and all heavy items would be moved to a separate bay. The material was then sent along a conveyor belt to remove particles which could not be removed by hand. Annexed to Mr Ulizzi's affidavit was a map of the Aussie Skips premises at Strathfield South showing the area where incoming material was sorted and processed.
Recovered fines produced by Aussie Skips were not sold. Routine testing was completed in accordance with the CPRF exemption. The samples taken were sent to Envirolab once per week for testing. If a sample did not meet the exemption, it would be re-screened. This was done by mixing the non-complying material with screened material and testing it again.
Aussie Skips contracted the removal of recovered fines to Sneddons, using Mr Mullown as a contact person. The recovered fines were used by Sneddons as a backload. A "backload" is a load taken by trucks which would otherwise be empty on their return journey. Backloads are intended to save on fuel and vehicle wear and tear costs. Aussie Skips also transported recovered fines through Papworths but less frequently than Sneddons. The charge to Aussie Skips for transporting recovered fines was $450 per load, regardless of which company took the load. A load would be approximately 20 tonnes.
Mr Ulizzi received the s 143 notice from Macka's Sand and Soil indicating that Mr Mullown was transporting the material to their property and it was permitted to receive the material. This amended copy was requested as a previous version had not specifically listed recovered fines.
Mr Ulizzi annexed to his affidavit the s 143 notice and letter dated 13 July 2008 as detailed above at [133]. A statement of compliance, stating the recovered fines from the Strathfield South facility of Aussie Skips complied with the chemical requirements of the CPRF exemption, was sent from Aussie Skips (Aust) to Macka's Sand and Soil on 21 December 2011. Another statement of compliance from Aussie Skips (NSW) to Macka's Sand and Soil was sent on 1 April 2012. Both were annexed to Mr Ulizzi's affidavit.
In cross-examination by the EPA pursuant to the s 38(1) order Mr Ulizzi was shown two photographs taken by Mr Bourne on 15 May 2013 of Stockpile 1 (in Exhibit E). He agreed that there was material shown in the photographs which was larger than 9.5 millimetres. Mr Ulizzi said that Aussie Skips did not tip material of that nature on Lot 8.

[48]

Mr Ryan (Bingo)

Mr Ryan landfill operator for Bingo affirmed an affidavit on 7 October 2016. Between October 2012 and May 2013, Mr Ryan was the recycling sales manager for Bingo. The Bingo facilities relevant to the proceedings were: 1. the ARC located at Duck Street Auburn; 2. the St Peters Recycling Centre Pty Ltd (SPRC) located at Burrows Street St Peters; and 3. the HBRC located at Burroway Road Homebush Bay.
All three centres accepted waste as permitted by their respective EPLs. As sales manager, Mr Ryan looked after incoming sales to the centres. A fee was charged for material received at each centre. The majority of the material came from skip bins containing waste from both residential and commercial sources. There was usually no front end testing of incoming skip bins of building and demolition waste. In cases of large incoming loads of soils, there would often be accompanying test data to demonstrate the material met the licence conditions. Sometimes incoming soils would meet the ENM exemption. Small skip bins of such soil would not have been tested.
Waste material which came to the centres was subjected to visual inspection by the supervisor or weighbridge operator. The initial inspection was done if possible before the load was tipped. This was done to identify asbestos or any odours suggesting contamination. If asbestos was found or an odour detected, the material would be reloaded and the customer charged a reload fee. The waste would then be handpicked or sorted by machine to identify recyclables such as steel, concrete, glass, timber or bricks. Once recyclable materials were removed, the soil would be screened and tested in accordance with the CPRF exemption. Aargus would sample the recovered fines weekly and would send the samples to a lab. Every six weeks Aargus would compile a detailed assessment of the results. Stockpiles were isolated and everyone would be made aware of which stockpiles could be reloaded and which were to be kept intact as they were awaiting test results.
The three centres would not produce ENM from their recycling operations. If a load appeared to have minimal foreign material, it would be isolated and tested by Aargus against the ENM exemption. Mr Butler was in charge of compliance and safety and would keep the Aargus certificates.
Bulk Logistics was engaged to take ENM from Sydney to Macka's Sand and Soil which had EPL 13218. The invoices from Maddox (which transported material for Bulk Logistics) in Exhibit P showed that ENM was taken from Sydney to the Newcastle region. Mr Ryan was not aware of any material other than ENM going to Macka's Sand and Soil. Mr Butler was responsible for ensuring Macka's Sand and Soil was licenced to receive ENM.
The transporters were paid to transport ENM to Lot 8 as during the charge period there was no value in ENM and the three centres could not make money from ENM. A fee was paid to the transporters and may have included an amount which the transporters were liable to pay the operators of Lot 8 for receiving ENM. The trucks taking ENM were not weighed as they were charged by the truckload. In addition to premises licenced by an EPL to receive ENM, certain persons or entities would charge a fee to accept ENM at job sites that had a DA to accept ENM.
At the relevant time there were more companies disposing of ENM than there were placement facilities. It was very difficult to find premises where ENM could be sent as recycling centres were producing so much.
In cross-examination Mr Ryan was shown a report from Aargus for the SPRC dated 21 March 2013 (Exhibit 21, which was extracted from Exhibit M). Mr Ryan agreed that the SPRC had received building, construction and demolition waste as well as material meeting the ENM exemption. He agreed that material supplied in compliance with the ENM exemption could not contain asbestos. Mr Ryan confirmed that Bingo facilities had an asbestos management plan. He agreed that material which contained asbestos at the Bingo facilities would not be validated as ENM and would not be sent out. Mr Ryan agreed that it was his understanding that only ENM was provided to Grafil by the Bingo facilities during the charge period

[49]

Mr Foxman (BBR)

Ms Moore interviewed Mr Foxman formerly of BBR (now in liquidation) on 17 June 2014. BBR went into liquidation in May 2014. Prior to going into liquidation BBR held an EPL issued in 2008. BBR contracted Mr Gilder of Bulk Logistics to transport recovered fines and Virgin Excavated Natural Material (VENM). Mr Gilder had told Mr Foxman that he had a place he could lawfully take recovered fines, VENM and ENM. Mr Foxman had not seen any permissions for using the material. Bulk Logistics subcontracted to Maddox. Both Bulk Logistics and Maddox initially took sample loads of material. Once the material had been found to be suitable they continued to transport it.
Mr Foxman detailed the process for screening waste and checking for asbestos (see [356]-[357] below). Materials such as bricks, concrete, clay and sand would be separated into different stockpiles. Mr Foxman marked on a map of the BBR premises at Banksmeadow where the respective stockpiles were located. BBR not only produced recovered fines, concrete aggregate, road base and recovered aggregate. The recovered materials were tested in accordance with the resource recovery exemptions. Mr Greely of Resource Laboratories Pty Ltd (Resource Laboratories) conducted the testing for BBR for 5-6 years. Mr Foxman said he would be able to provide copies of the test results from Mr Greely.
There was "not much of a market" for recovered fines during the charge period. The material transported by Bulk Logistics and Maddox was only recovered fines and occasionally VENM. Driver delivery dockets were supplied by the transporters for each load. BBR provided a weighbridge docket to transporters which contained a compliance note that the materials met the resource recovery exemptions. Transporters could not accidentally take out non-compliant material as there were designated stockpiles from which they could collect loads. Material which did not meet the exemptions was sent to landfill. BBR would pay the transporters to take the recovered material.
In cross-examination by the EPA pursuant to the s 38(1) order Mr Foxman was shown two photographs taken by Mr James on 16 May 2013 of Stockpile 1 (in Exhibit K). Mr Foxman was asked whether the material in the pictures resembled that which was sent by BBR to Grafil. Mr Foxman disagreed saying the material did not resemble what was sent by BBR. It was put to Mr Foxman that the photograph showed material which well exceeded the 9.5 millimetre limit for compliance with the CPRF exemption. Mr Foxman disagreed. He said that in any event the material could still comply with the exemption as only 95 percent of material was required to be less than 9.5 millimetres for compliance with the CPRF exemption.
In cross-examination by Grafil's counsel Mr Foxman was shown test reports relating to BBR's sampling in Exhibit A. Mr Foxman agreed that the test reports showed samples numbered "Fines-133" through to "Fines-147" for the period July 2012 to June 2013. Mr Foxman was then taken to spread sheets recording samples taken by BBR, the spread sheets having been supplied by Resource Laboratories on behalf of BBR to the EPA. He agreed that the spread sheets showed samples numbered "Fines-110" through to "Fines-161" for the period July 2012 to June 2013. Mr Foxman agreed that he would have expected the EPA to have requested further information from himself or Mr Greely given the apparent discrepancy between the test reports provided and the spread sheets which showed that test reports were apparently missing. He agreed that the EPA had not sought further information in relation to the BBR test reports.

[50]

Mr Scarlis (KLF)

Ms Moore interviewed Mr Scarlis of KLF on 19 June 2014. KLF produced recovered fines as its EPL permitted it to do so. KLF had arrangements with Bulk Logistics to take recovered fines as backloads to Macka's Sand and Soil at Salt Ash. Maddox trucks came to KLF as arranged through Bulk Logistics. Mullown trucks also came to the KLF premises. In 2012, KLF was provided with a s 143 notice dated 7 July 2008 from Bulk Logistics who had originally received it from Mr Mackenzie. KLF did not pay for the disposal of the recovered fines and instead only paid for the cartage. All other waste from KLF was sent to landfill.
KLF had an EPL and a consent from Parramatta City Council to use their premises as a waste facility. When material was first brought to KLF, it would be sorted and screened for brick and concrete. It would then be tested for compliance with the CPRF exemption. Mr Scarlis marked a map of the KLF facility to show where stockpiles of materials such as bricks, concrete and recovered fines were kept. KLF would send out all of its recovered fines and did not use any on site. They did not charge for sending out recovered fines. KLF supplied certificates of compliance with all material which met the CPRF exemption.
Mr Scarlis provided a USB with copies of KLF's test results for compliance with the CPRF exemption. KLF would not accept contaminated waste or material from bulk excavation works as it could contain hazardous material. KLF primarily accepted skip bin fines. KLF had staff checking the loads as they were tipped to make sure material was free of asbestos. KLF had asbestos procedures in place which involved any material containing asbestos being reloaded.
Loads of recovered fines varied between 18-30 tonnes. KLF would pay approximately $460 per load to transport recovered fines. KLF did not check with the Council to ensure Macka's Sand and Soil was able to receive recovered fines.
In cross-examination by the EPA pursuant to the s 38(1) order Mr Scarlis was shown two photographs taken by Mr Bourne on 15 May 2013 of Stockpile 1 (in Exhibit E). Mr Scarlis was asked whether the material in the photograph resembled what was sent by KLF to Lot 8. Mr Scarlis said that the material in the photographs was not of the type sent from KLF. The material delivered from KLF appeared to be less than eight millimetres and resembled turf underlay.

[51]

Section 191 notices to obtain records and information issued to the processors

Mr James in his affidavit sworn 29 April 2016 stated that he issued the following notices under s 191 of the POEO Act to three of the processors seeking records and/or information. On 15 February 2016 a s 191 notice was issued to KLF Recycling Hornsby Pty Ltd and to KLF Holdings Pty Ltd. KLF sent invoices it had received from Bulk Logistics and Mullown. On 24 March 2016 the EPA received a response from both KLF entities. A copy of the notices and responses were in Exhibit K.
On 24 March 2016 a s 191 notice seeking records and/or information was issued to Aargus. On 1 April 2016 the EPA received a response from Aargus. Aargus provided test results for the three Bingo recycling centres for the CPRF and ENM exemptions. A copy of the notice and response were in Exhibit K.
On 24 March 2016 a s 191 notice seeking records and/or information was issued to Aussie Skips. On 12 April 2016 the EPA received a response from Aussie Skips. Aussie Skips supplied statements of compliance with the CPRF exemption it had provided to Mullown and Sneddons and invoices it had received from Mullown and Sneddons. A copy of the notice and response were in Exhibit K.
Ms Moore in her affidavit sworn 27 April 2016 stated that she issued a s 191 notice seeking records and/or information to FS Insolvency Pty Ltd as liquidators for BBR on 16 July 2015. The EPA received a reply from FS Insolvency Pty Ltd on 27 July 2015. A copy of the notice and letter in reply were in Exhibit A. The EPA also sent a letter to Mr Greely of Resource Laboratories on 11 June 2015 requesting information and test results relating to BBR's sampling of waste during the charge period. Mr Greely replied on 24 June 2015 and 8 August 2015 supplying the test results and various emails between himself and BBR. Copies of the emails and attached documents were in Exhibit A.
The EPA sent a letter to Mr Foxman requesting information and copies of documents which were spoken about during the ROI on 17 June 2014. A copy of the letter was in Exhibit A. On 18 August 2014 Mr Foxman emailed the EPA stating that he had been unable to obtain the rejected loads register or VENM test results as discussed during the ROI. He said that Mr Greely had done all of the sampling for BBR during the charge period and provided Mr Greely's contact details.
A s 191 notice was not issued to Bingo. Bingo had commenced proceedings in relation to the search and seizure operation carried out by the EPA at its premises on 15 May 2013. The amended summons and consent orders for the proceedings formed Exhibit 31. In the proceedings commenced by Bingo the EPA agreed that it would not access the records it seized on 15 May 2013.

[53]

Record collation by Ms Moore

In her affidavit sworn 21 October 2016 Ms Moore explained how she collated the primary records received in response to the s 191 notices issued by the EPA, consisting of driver dockets and invoices issued by transporters to the four main processors (Bingo, KLF, BBR and Aussie Skips) and other locations. The other locations were described as Northmead, Ausscrap, Civil Plus, Gow Street Recycling, Tip N Skip and Tip N Skip - Dats Recycling.
Tonnages and prices for loads taken by the transporters were derived from invoices and driver dockets. These figures were entered into an Excel spread sheet. Ms Moore entered some of the records herself and instructed two administrative assistants to do the same. Exhibit D was a USB drive containing the spread sheet of 29 pages and an A3 printout of the spread sheet.
Where tonnage figures were not provided in the primary documents, Ms Moore divided the amount owing on the invoice by the amount per tonne to estimate the total tonnes of material charged for the particular invoice. In making these estimations Ms Moore assumed the average load to be 20-25 tonnes.
Four summaries of the records were included in the spread sheet. Table 1 represented a summary of the unfiltered records. Table 2 was a filtered version purporting to exclude loads not taken to Lot 8, loads which were not waste and loads taken outside of the charge period. Table 3 presented the records by reference to the waste description in the primary records. Table 4 tallied the total tonnes of waste sent from BBR to Lot 8.
A total of 66,810 tonnes of material was recorded as being delivered to Lot 8 during the charge period from the four main processors and the other locations. The four main processors were recorded as supplying the majority of the material, with the other locations supplying amounts ranging from 25 tonnes to 1,765 tonnes each.
In cross-examination, Ms Moore was asked about how she collated the records. She agreed she had double and triple counted certain entries in the spread sheet (Exhibit D). Firstly, Ms Moore agreed that she had double counted certain loads by assuming that B-double trucks were sent in addition to truck and dog loads. Ms Moore was shown invoices from Bulk Logistics in which truck and dog loads were invoiced at $500 per load and B-double trucks were invoiced at $50 per load. Grafil's counsel suggested to Ms Moore that instead of a B-double truck costing $50, it cost $550 as it carried slightly more than a truck and dog. Ms Moore agreed with this suggestion and confirmed that she had incorrectly assumed that B-double trucks should be entered separately to truck and dog loads.
Secondly, Ms Moore agreed that she had not fully comprehended the subcontracting arrangements between many of the transporters. These arrangements meant that there were often multiple invoices produced for one load of material. Ms Moore said that she had counted these invoices as different loads, rather than one load which had been subcontracted to various transporters and therefore invoiced multiple times.
Thirdly, Ms Moore agreed that she had included loads in the spread sheet which did not relate to the case as they were sent to locations other than Lot 8. Ms Moore agreed that she had included loads which were sent to locations such as Berrima and Newcastle. It was suggested to Ms Moore that she had counted loads with "Newcastle" as the destination as going to Salt Ash, although Newcastle is some 35 kilometres away from Salt Ash. Ms Moore said she had understood this to be the case and had assumed that a delivery destination of "Newcastle" could be equated as going to Salt Ash. Ms Moore agreed to revise the spread sheet.
Ms Moore produced a revised spread sheet which was 29 pages (Exhibit R) and a document explaining how she revised the spread sheet (Exhibit S). In further cross-examination Ms Moore agreed that the revised spread sheet reduced the tonnage of material being sent to Lot 8 from 68,810 tonnes to 35,765.13 tonnes, a reduction of 46.5 percent. Ms Moore said that she had not deleted any of the duplicate or triplicate entries in the revised spread sheet and had only changed the entry showing the total amount of material sent to Lot 8 (being line 45 of Exhibit R). In cross-examination Ms Moore had applied an Excel formula to eliminate duplicates in the spread sheet. She had also re-examined the primary data, particularly that supplied by Bulk Logistics as it facilitated most of the subcontracting arrangements, to eliminate duplicates.
Ms Moore was asked whether she understood the subcontracting arrangements between the transporters. She said that she had some understanding. Ms Moore agreed that Papworth had not invoiced any of the processors directly. Ms Moore was then asked why all of the invoices from Papworth were not marked as duplicates in the revised spread sheet as it appeared to have only subcontracted through other transporters. Ms Moore said that this was because the docket numbers had not appeared as duplicates upon applying the Excel formula.
In cross-examination Ms Moore was asked about a further subcontracting arrangement. From 2 July 2012 to 28 February 2013 the only transporters to invoice Aussie Skips were Sneddons and Mullown. Grafil's counsel suggested that any invoice between either Sneddons or Mullown and other transporters such as Papworth should have been removed as a duplicate. A similar situation arose between BBR, Bulk Logistics and Maddox. Maddox had not invoiced any of the recycling centres directly and had only subcontracted through Bulk Logistics. Therefore, all Maddox invoices could have been excluded as duplicates on the basis that these loads were included in the Bulk Logistics invoices. Ms Moore agreed that she had not fully understood these arrangements and the duplicates arising as a result had not been excluded through application of the Excel formula.
In cross-examination Ms Moore agreed that certain primary documents such as invoices and delivery dockets relied on by the EPA related to deliveries falling outside of the charge period. Grafil's counsel suggested that it could be inferred that as Grafil had been ordered to cease receiving material on 15 May 2013, any deliveries after this period would not have gone to Lot 8. Ms Moore said that this was a reasonable inference to make. Ms Moore was asked about the presence of material irrelevant to the proceedings in the primary material. It was put to Ms Moore that the primary documents contained irrelevant material. Ms Moore agreed that the primary documents obtained from Bulk Logistics contained unrelated emails from other recycling centres. There was also information missing from Bulk Logistics' records. A number of spread sheets were referred to in Bulk Logistics' invoices supplied to the EPA. Ms Moore said she had emailed Bulk Logistics requesting that these spread sheets be supplied. Of the 13 spread sheets requested four were returned. She agreed that no attempt was made to follow up the remaining nine spread sheets.
In the revised spread sheet (Exhibit R) Ms Moore had not excluded loads which went to properties other than Lot 8 (see cross-examination of Mr Wade and Mr James summarised above at [51]-[53]). In cross-examination Ms Moore was shown two documents in Exhibit 18. The first document was a Bulk Logistics invoice to the HBRC which showed a truck with registration MAD512 as having taken material from the HBRC on 30 October 2012. This invoice was included in the primary records considered by Ms Moore in Exhibit A. The second document was a National Driver Work Diary Daily Sheet (driver sheet) for Mr Perrett (a Maddox driver) dated 30 October 2012. The driver sheet showed Mr Perrett driving a truck with registration MAD512 from Narellan arriving in Thornton in the Hunter region at 12.30pm on 30 October 2012. It was put to Ms Moore that the truck driven by Mr Perrett must be the truck which was observed as tipping at the Mortimer property in the surveillance report on 30 October 2012 at 12.27pm (Exhibit 9). Ms Moore suggested that the truck might have had another movement earlier that day. It was then put to Ms Moore that an earlier truck movement was not possible, as the surveillance report showed the truck tipping at 12.27pm and the driver sheet showed Mr Perrett as being "at rest" at 12.30pm on 30 October 2012. Ms Moore agreed that this appeared to be the case and that there was no other possible explanation that the load taken by Mr Perrett was deposited other than at the Mortimer property. Ms Moore had included the Bulk Logistics invoice for this load in the primary material as representing a load taken to Lot 8, although it went to the Mortimer property.
In cross-examination Ms Moore was shown a Maddox invoice numbered 5274 included in Exhibit A. The invoice showed a load of clay going from Botany to Newcastle in a truck with registration RIG400 on 15 May 2013 (being the day of the search and seizure operation at Lot 8). The EPA had attributed the truck as going to Lot 8. Ms Moore was shown Exhibit T (also admitted as Exhibit 20) which consisted of three driver sheets from Mr Hughes (a Maddox driver), dated 14, 15 and 16 May 2013. Mr Hughes had driven a truck on those days with registration RIG400 and did not record going to Salt Ash or anywhere else indicating the Grafil premises. It was put to Ms Moore that the load from the Maddox invoice, transported by Mr Hughes, had been included in the spread sheet (Exhibit R) despite Ms Moore not having observed any trucks depositing material at Lot 8 on 15 May 2013. Ms Moore said it was possible that the load had been deposited prior to the EPA attending the site on 15 May 2013, but agreed it would have been captured by the static cameras placed in the national park outside Lot 8 if that were the case (it was not). Ms Moore agreed that the load in Maddox invoice numbered 5274 likely went elsewhere as the EPA had directed Mr Mackenzie to cease receiving material. Ms Moore was not aware of an order having been issued to the processors that they stop producing or supplying material to sites throughout NSW.

[55]

AECOM Report

The Salt Ash Waste Investigation Report (the AECOM Report) dated 9 June 2016 was authored by Ms Blefari senior environmental scientist at AECOM and was Exhibit Z (being the exhibit to Ms Blefari's affidavit sworn 1 September 2016). The purpose of the AECOM Report was to determine whether the stockpiles on Lot 8 (with a particular focus on Stockpiles 1 and 2) were compliant with the physical and chemical criteria in the resource recovery exemptions. The AECOM Report assessed Stockpiles 1 and 2 for compliance against the following guidelines (as outlined in Table 1 of the AECOM Report): the VENM exemption, the ENM exemption, the BPRF exemption, the Recovered Aggregate exemption, the Cement Fibre Board Exemption (2008) and the Waste Classification Guidelines (2009). Stockpiles 1 and 2 were also assessed against the CPRF exemption but as explained in Ms Blefari's cross-examination below at [192], no conclusion as to compliance with the CPRF exemption was given.
The AECOM Report was based on sampling conducted at Lot 8 from 27-30 October 2015. During the sampling 42 test pits were excavated across Stockpiles 1 (30 test pits) and 2 (12 test pits). Appendix E of the AECOM Report showed that 94 samples were analysed from a total of 137 samples (Appendix C) taken from Stockpile 1. Of the samples taken, 23 were bulk samples weighing 25 kilograms each. All other samples were subsoil samples ranging in weight from 300-500g (Appendix D Table 2). Samples were taken at a density of one sample per 425 tonnes in accordance with the Victorian EPA (2009) Industrial Waste Resource Guidelines - Soil sampling for sampling of stockpiled materials (the Victorian EPA Soil sampling guidelines). Following the sampling on Lot 8, diagrams showing the location of the test pits, logs showing the soil profile of each test pit and the findings of the investigation were prepared.
Part 7 of the AECOM Report contained findings specifically relating to Stockpiles 1 and 2. Table 4 made a number of field observations about Stockpiles 1 and 2. It described Stockpile 1 as "[c]layey gravelly sand" containing imported material such as bricks, metal, plastic, tile and asbestos fragments. Stockpile 2 was described as "[c]layey sand" containing imported material such as gravel, timber, asbestos fragments, brick and tile. Tables 6 and 7 summarised the results where soil in Stockpiles 1 and 2 respectively had exceeded the absolute maximum concentrations for certain analytes in the resource recovery exemptions. The AECOM Report tested Stockpiles 1 and 2 for the substances listed in Condition 10 Table 2 of the CPRF exemption and Condition 10 Table 2 of the ENM exemption. It found that certain test pits within both stockpiles exceeded the maximum concentrations for some of the substances listed. A contoured map of Lot 8 was annexed to the AECOM Report.
Table 8 summarised the samples which tested positive for asbestos (the primary data being recorded in Appendix D Table 3). It showed that 11 samples tested positive for asbestos on the surface and 11 samples tested positive for asbestos at depth. Appendix A Figure 5 was a map showing the locations of the samples testing positive for asbestos (being 26 in total). The data in Appendices D and E showed that there were no free asbestos fibres present in Stockpiles 1 and 2.
There were a number of other appendices in the AECOM Report. Appendix B contained photographs of the plate logs for each test pit. Appendix D contained the results tables. Appendix D Table 1 contained the results for the presence of various analytes in Stockpiles 1 and 2, Table 2 contained the results for the presence of asbestos in the subsoil samples and Table 3 contained the results for the presence of asbestos in the bulk samples. The total weight of the asbestos detected in the bulk samples as recorded in Table 3 was 634.64 grams. Appendix E contained the laboratory certificates of analysis and chain of custody documentation. Appendix E showed that 220 samples had been tested for the presence of asbestos. Appendix E showed that there were 26 detections for asbestos in the 220 samples. Appendix F contained field notes taken by AECOM employees during the sampling from 27-30 October 2015. Appendix K compared the results from the 2013 sampling from the 2015 sampling. Appendices G-J were not material to the consideration.
In her affidavit sworn 1 September 2016 Ms Blefari deposed that the Salt Ash waste investigation project was handed to her as the new AECOM project manager from a URS (now AECOM) project manager. Ms Blefari engaged BMA to mark out the predetermined sample grid and test pit locations and to complete a survey of Lot 8.
Ms Blefari outlined the URS (now AECOM) sampling, analysis and quality control plan (Exhibit 1C) to Mr Dean environmental scientist with AECOM who would be the field manager during the investigation. Mr Dean contacted Ms Blefari routinely throughout the investigation of Lot 8 from 27 October 2015 onwards to discuss the progress of the investigation, including the completion of the scope of works in the anticipated timeframe and any observations or technical matters. The samples taken from the site were taken to subcontracted laboratories.
In cross-examination Ms Blefari agreed that no attempt was made in the AECOM Report to compare the results of the sampling with the average maximum concentrations in the CPRF exemption because it was not possible to obtain an average result for particular analytes across an entire stockpile from individual samples as were taken for the AECOM Report. Ms Blefari agreed she did not apply the CPRF exemption to the results in the AECOM Report because the CPRF exemption applied to a production process rather than analysing an in situ stockpile.
In cross-examination Ms Blefari was shown a copy of the URS (now AECOM) sampling and analysis quality plan (Exhibit 1C). Ms Blefari agreed that the plan required one sample to be taken per 425 tonnes for stockpiles greater than 5,100 tonnes. She further agreed that this requirement was derived from the Victorian EPA Soil sampling guidelines which recommended that frequency of sampling for materials which were homogenous in nature. Ms Blefari was then shown the Victorian EPA Soil sampling guidelines (Exhibit 1D) and agreed that it recommended the sampling frequency of one sample per 425 tonnes for homogenous stockpiles was the bare minimum to achieve a 95 percent upper confidence limit. This meant that approximately 100 samples should have been taken from Stockpiles 1 and 2. Accepting that the material in Stockpiles 1 and 2 was heterogeneous Ms Blefari agreed that more samples may have been required than the 94 samples taken for Stockpile 1 to achieve results which were statistically representative to the 95 percent upper confidence limit.
Ms Blefari agreed that according to the AECOM Report the combined volume of Stockpiles 1 and 2 was approximately 44,000 tonnes. She further agreed that the 25 kilograms of material taken as subsoil samples from Stockpiles 1 and 2 was a very small proportion of the overall volume of the stockpiles.
In re-examination Ms Blefari was shown Exhibit 1A (being the three pages from the URS Report) and was asked whether the 23 asbestos detections identified in the table headed "Analytical Results - Soil Sample Result - Asbestos" were in addition to the 26 detections confirmed in the AECOM Report. Ms Blefari agreed that they were additional detections.
Mr Dean affirmed an affidavit on 31 August 2016. Mr Dean was responsible for the sampling and analysis of material from 42 test pit locations on Stockpiles 1 and 2. On 27-30 October 2015 Mr Dean attended Lot 8 with Mr Bourne to conduct an investigation of the two stockpiles. Mr Dean supervised the excavator operator at Stockpile 2 and logged the lithological profile of each test pit. Subsoil samples weighing 300-500 grams each were collected from each test pit in 10 litre plastic buckets. This process was repeated for Stockpile 1. The weight of each subsoil sample was recorded in Table 2 of Appendix D of the AECOM Report.
On 29 October 2015 Mr Fifield an engineering geologist with AECOM met the EPA investigation team before going to Lot 8. Mr Fifield assisted in collecting bulk soil samples based on asbestos sightings (approximately 25 kilograms each) from Stockpile 1. Mr Fifield returned on 30 October 2015 to undertake the same process in relation to Stockpile 2.
Mr Dean was cross-examined in relation to the number of samples taken during the exercise on 27-30 October 2015. He was shown a complete copy of his field notes from that exercise (Exhibit 28) in which he acknowledged that stockpiles of a heterogeneous nature may require a greater number of samples than those which were homogenous in nature. Mr Dean agreed that more than 94 samples had been taken from Stockpiles 1 and 2, but only 94-95 had been analysed. He said that the decision as to what samples were analysed was made jointly by him and Ms Blefari.

[56]

Geotechnical Report

The Salt Ash Waste Assessment - Geotechnical Investigation Report (the Geotechnical Report) dated 17 June 2016 was authored by Mr Walker senior engineering geologist with AECOM (Exhibit X). Mr Walker swore an affidavit on 1 September 2016. He was involved in costing and setting up the geotechnical component of the Salt Ash Waste Investigation with Ms Blefari. The purpose of the Geotechnical Report was to provide a geotechnical assessment of Stockpiles 1 and 2 and to assess whether the material was suitable for use in a road based on the NSW Roads and Maritime Services Material Specification R44 Earthworks Specification (the RMS specification). The geotechnical field work was undertaken by Mr Fifield. Upon receiving Mr Fifield's field notes on 2 November 2015, Mr Walker scheduled the geotechnical laboratory testing. AECOM used the SGS Australia Pty Ltd laboratory for the testing.
The Geotechnical Report was based on the bulk sampling completed by AECOM on Lot 8 from 27-30 October 2015. Attachment D to the report contained test certificates showing the particle size distribution in the bulk samples. The test certificates showed the percentage of material passing through sieves of various sizes, including one of 9.5 millimetres. A summary of the Geotechnical Report's findings on particle size and suitability for use in a road are at [390] below.
In cross-examination Mr Walker was asked about the adequacy of the bulk sampling and testing conducted by AECOM. Mr Walker was shown an email dated 19 October 2015 from himself to Ms Blefari (Exhibit Y). In this email, Mr Walker suggested taking 27 [bulk] samples, rather than 23. In response to questions about why he had recommended 27 samples be taken Mr Walker agreed he had not established why this number should be taken or that this ratio of samples was based on any particular guidelines. The samples taken were approximately 25 kilograms each. Mr Walker agreed that 18 bulk samples had been taken from Stockpile 1 and five had been taken from Stockpile 2. Mr Walker agreed that 23 samples of 25 kilograms each meant a total of 575 kilograms of material was taken from both stockpiles. He further agreed that this was a small percentage comparative to the total volume of the stockpile. Mr Walker had described many of the samples as containing clay. It was put to Mr Walker that the particle size of the material could change over time as it could clump together in moist conditions. Mr Walker agreed that this could occur, but that the chemical content of the clay would not change.
Mr Walker agreed that the material in Stockpiles 1 and 2 could be described as heterogeneous, rather than homogenous. He agreed none of the samples taken for the AECOM and Geotechnical Reports could be said to be representative of the materials throughout both Stockpiles 1 and 2.
In re-examination Mr Walker was shown Exhibit Y and taken to a sentence within his email where he said "[e]nsure that samples are representative and the depths and location are accurately recorded." Mr Walker agreed that this was something he had been cognisant of in analysing Stockpiles 1 and 2.
Mr Fifield affirmed an affidavit dated 31 August 2016. Mr Fifield was responsible for the sampling and analysis of 23 of the test pits on Stockpiles 1 and 2 which informed the Geotechnical Report. On 29 and 30 October 2015 Mr Fifield collected bulk samples weighing 25 kilograms from the test pits to characterise the geological strata and conduct a volume estimate of the stockpiled material. The samples were transported to AECOM's Newcastle office. In November 2015 Mr Fifield processed the test pit logs, site plans and geotechnical sample chain of custody before handing the project over to Mr Walker.

[59]

Affidavits of Mr McClenahan

Mr McClenahan, registered surveyor, affirmed an affidavit on 1 September 2016. On 17 June 2013, Mr McElwain of the EPA contacted Mr McClenahan, requesting historical aerial images of Lot 8 between 2011 and 2012. Mr McClenahan asked Mr Cowdery of AAM Pty Ltd about acquiring the images. He was informed that no images suitable for determining levels were available. BMA therefore restricted the BMA 2013 survey to the existing ground surface and stockpiles. The BMA 2013 survey (annexed to Mr McClenahan's affidavit affirmed 1 September 2016) included a plan of Lot 8, showing levels and contours over the site, locations of test pits, the large shed on site and the outline of the stockpiles based on the survey. The BMA 2013 survey was completed on 5 September 2013 and estimated the combined volume of Stockpiles 1 and 2 to be 47,430 tonnes.
On 1 October 2015, Ms Porter of AECOM requested that BMA undertake a new survey of Stockpiles 1 and 2, to show the changes to the stockpiles since 2013. Mr McClenahan and Mr Dekort graduate surveyor attended Lot 8 on 27 October 2015 to conduct the new survey (the BMA 2015 survey). Mr McClenahan sent the plan and volumetric report to Ms Blefari of AECOM on 24 November 2015. The BMA 2015 survey showed the combined volume of Stockpiles 1 and 2 to be 45,560 tonnes.
Mr McClenahan affirmed a further affidavit on 15 November 2017. He explained the functions of equipment, surveying and engineering software and methods used in conducting the BMA 2013 and 2015 surveys. He also stated that in both surveys, he assumed that the base of Stockpiles 1 and 2 was an inclined plan. Mr McClenahan adopted this assumption by examining the levels at the base of each stockpile. In his experience, this was the most accurate method of determining volume in circumstances where there was no information about surface levels underneath stockpiles.
In conducting the BMA 2015 survey, Mr McClenahan used control stations which had been left on site from the BMA 2013 survey. The coordinates of the control stations varied by a maximum of 12 millimetres between the BMA 2013 and 2015 surveys. The control stations had not been shown on the plans for the BMA 2013 survey as they were not part of the brief.
Mr McClenahan compared the BMA 2013 and 2015 surveys, stating that a large part of Stockpile 1 along the eastern side of the stockpile had been removed between 2013 and 2015. Stockpile 2 had a small additional stockpile added to the top of it, which marginally increased its height and volume.
In cross-examination, Mr McClenahan confirmed that he used the images from AAM Pty Ltd to determine the ground surface beneath Stockpiles 1 and 2. The BMA 2013 survey showed the top and side surfaces and contour lines of Stockpile 1, but did not show the ground surface beneath the stockpiles. Mr McClenahan agreed that he had concluded in the BMA 2013 survey that the volume of Stockpiles 1 and 2 could be greater than the calculations made in the BMA 2013 survey as the volumes were calculated without knowing the state of the surface beneath the stockpiles. The BMA 2013 survey contained a note reading "Stockpiles have been surveyed between 15-5-2013 to 17-5-2013. Stockpiles are subject to change outside of these dates." Mr McClenahan confirmed this meant that the physical features depicted in the plan only represented the features as they were between those dates.
In response to questions about calculating the volume of Stockpiles 1 and 2 Mr McClenahan said he would not be able to say if the volume of Stockpiles 1 and 2 would be less if the ground surface was undulating or mounded rather than flat as he had not had access to a ground survey prior to undertaking the BMA 2013 and 2015 surveys. At the time of the BMA 2015 survey, Mr McClenahan had access to an aerial photograph taken on or about 4 October 2015. However, he was not able to use this image to determine levels as it had not been corrected for scale.
In cross-examination Mr McClenahan was shown an aerial photograph of Lot 8 dated 25 June 2011 from Exhibit A. He agreed that piles of material were visible in what was now known to be the location of Stockpile 1. Mr McClenahan could not recall seeing this image prior to preparing the plan for the BMA 2013 survey. He said that in any event, the image was not suitable for determining levels. Mr McClenahan had seen the 25 June 2011 image when preparing the BMA 2015 survey. He agreed that the assumption that the ground was a flat and level incline was not consistent with the state of Lot 8. Mr McClenahan said that this was the best assumption that could be made at the time. He said that the aerial image was not taken for the purpose of aerial photography or for deriving contours. Rather, a stereoscopic image pair would be needed for the purpose of determining levels. Mr McClenahan agreed that even if ordinary images were used it was clear that the ground beneath Stockpiles 1 and 2 was not flat.
An exact height or volume could not be derived from the image dated 25 June 2011. Mr McClenahan could therefore not estimate the difference between the volume of the stockpile taking into account the mounded surface on which the stockpile was placed and the volume calculated in both surveys which assumed the surface beneath the stockpile was flat.

[60]

Dr Prifti's reports dated 2 August 2016 and 23 November 2016

Dr Prifti unit head within the Waste Strategy and Innovation Section of the EPA swore an affidavit on 2 August 2016. Dr Prifti has qualifications in environmental science, chemistry and engineering. She prepared an expert report (Exhibit 1F) addressing three topics: her understanding of the legislative scheme under the Waste Regulation and the resource recovery exemptions; whether the material in Stockpiles 1 and 2 complied with the CPRF and ENM exemptions; and whether the material taken to Lot 8 during the charge period complied with the CPRF and ENM exemptions based on the documents supplied by the four processors about their testing regimes. Dr Prifti swore a further affidavit on 23 November 2016 which annexed a supplementary expert report which revised the tonnages referred to in her first report based on the assumption of complete information being provided by the processors and transporters to the EPA.
In assessing whether the material in Stockpiles 1 and 2 complied with the CPRF exemption or the ENM exemption Dr Prifti had regard to the chemical and physical properties of the material based on the results from the AECOM Report which she compared to the absolute maximum chemical concentrations in Column 4 of Table 2 Condition 10 in the CPRF exemption and Column 3 of Table 2 Condition 10 in the ENM exemption. She also had regard to the findings of asbestos in the AECOM Report. Dr Prifti concluded based on her analysis of the relevant analytes that the entirety of the material in Stockpiles 1 and 2 failed to meet the CPRF and ENM exemptions.
Dr Prifti considered the four main processors' compliance with the resource recovery exemption testing regimes. She found that Bingo's test results were compliant with the ENM exemption but did not have sufficient information to assess whether Bingo had met the sampling requirements. Dr Prifti concluded that subject to Bingo meeting the sampling frequency requirements the material it supplied would be compliant with the ENM exemption. Dr Prifti's findings on Bingo have therefore not been included in the summary below commencing at [224].

[63]

Did the material taken from three recycling centres to Grafil comply with the CPRF exemption?

To determine whether the material taken to Lot 8 was compliant with the exemptions, Dr Prifti assessed whether the processors met the sampling frequency requirements in the resource recovery exemptions in the charge period. Compliance with Condition 11 of the CPRF exemption required processors to take one composite sample per fortnight for characterisation and take one composite sample per week over a five week period to determine maximum average concentrations. Results of the characterisation and routine testing must not exceed the chemical and other attribute concentrations listed in Columns 2, 3 and 4 of Table 2 of the CPRF exemption. Compliance with the ENM exemption required processors to undertake sampling as described in Table 3 of the ENM exemption. It should be noted that the quantities assumed by Dr Prifti were derived from Exhibit D which were later found to be incorrect when Ms Moore was cross-examined. Further Dr Prifti noted in her report when determining the adequacy of the processors' sampling regimes that some of the test results produced by KLF and BBR were incomplete.
Aussie Skips exceeded the maximum concentrations for lead and pH in the period 29 October 2012 and 15 May 2013. Dr Prifti came to this conclusion by calculating the routine average concentrations by averaging five weeks of routine test results. None of the material sent to Grafil from Aussie Skips was reported to be ENM. Dr Prifti therefore assumed all of the material to be recovered fines. Between 10 April 2012 and 14 May 2013, Aussie Skips supplied 8,995 tonnes of material to Grafil. As none of this material was reported to be ENM, it was assumed to be recovered fines. In her supplementary report dated 23 November 2016, Dr Prifti noted that during the charge period, Aussie Skips had only supplied 6,125 tonnes of material to Grafil. Apart from the change in amount, the opinions expressed by Dr Prifti in her first report remained unchanged.
The samples taken by KLF did not comply with the frequency requirements for the routine or characterisation sampling under the CPRF exemption. Dr Prifti concluded that because the material was not sampled in accordance with the CPRF exemption, the material sent to Grafil did not meet the CPRF exemption. KLF supplied 21,292 tonnes of material to Grafil between 12 September 2012 and 13 June 2013. A portion of this material (1,759 tonnes) was reported to be ENM, meaning that 19,533 tonnes was recovered fines. In her supplementary report, Dr Prifti revised these figures to state that 24,155 tonnes of recovered fines were supplied to Grafil during the charge period. Apart from the change in amount, the opinions expressed by Dr Prifti in her first report remained unchanged.
BBR also did not take samples in accordance with the frequency requirements under the CPRF exemption. Their material was not tested between September and December 2012 or between 6 December 2012 and 20 March 2013. Dr Prifti concluded that because the material from BBR was not sampled in accordance with the CPRF exemption for the majority of the time leading up to the charge period, the material sent to Grafil did not meet the CPRF exemption. BBR sent 11,090 tonnes of material which did not meet the CPRF exemption. In her supplementary report, Dr Prifti revised this figure as it became apparent that BBR had sent both recovered fines and VENM to Grafil. The amount of recovered fines and VENM sent to Grafil during the charge period was 23,165 tonnes. Apart from the change in amount, the opinions expressed by Dr Prifti in her first report remained unchanged.
Annexed to Dr Prifti's report was a copy of the EPA's request for an expert opinion, Dr Prifti's curriculum vitae, copies of the CPRF and ENM exemptions, the Waste Regulation, the Department of Environment, Climate Change and Water's "Guidelines on Resource Recovery Exemptions (Land Application of Waste Materials as Fill)", the EPA's "Waste Classification Guidelines", an analysis of the amount of material received from each of the recycling centres and a summary of the data exceeding the CPRF and ENM exemptions.

[64]

Cross-examination of Dr Prifti on operation of CPRF exemption

In cross-examination Dr Prifti agreed that asbestos was not listed in Condition 10 Table 2 of the CPRF exemption which set out the absolute maximum concentrations and maximum average concentrations for material complying with the CPRF exemption. She agreed that this meant there was no absolute maximum concentration standard specified for asbestos for material which purported to comply with the CPRF exemption. Dr Prifti was asked whether her conclusion that the material in Stockpiles 1 and 2 was not compliant with the CPRF exemption owing to the presence of asbestos was because of her interpretation of the notes to the CPRF exemption. Dr Prifti stated that while the notes did not specify a limit for asbestos, it referred to legislation which stated that asbestos could not be in material complying with the CPRF exemption. She agreed that the notes did not establish an absolute maximum concentration for asbestos for the purpose of the CPRF exemption.
Dr Prifti was also cross-examined on her understanding of the operation of the CPRF exemption. Dr Prifti agreed that the CPRF exemption did not require testing of every load of recovered fines which left a processor's facility. It was put to Dr Prifti that because the CPRF exemption did not require testing of each load leaving a facility it would not prevent loads leaving which may not have complied with the absolute maximum concentrations or particle size requirements in the CPRF exemption. Dr Prifti said that this was not precisely correct. The CPRF exemption was a quality assessment tool allowing recovered fines to be tested at appropriate intervals. However, the general conditions in the CPRF exemption (Condition 7) stated that the chemical concentration and other attribute requirements still needed to be met. Dr Prifti stated that the sampling and testing requirements were minimum standards and processors could complete extra testing if they wished to do so. Dr Prifti likened the CPRF exemption to quality assurance testing of a product such as baked beans. While a processor may periodically test cans of baked beans they could not allow a consumer to become ill in between testing periods. It was then put to Dr Prifti that the quality assurance process in her example would not prevent potentially contaminated baked beans leaving the manufacturing facility. Dr Prifti responded that it was the responsibility of the supplier to ensure the material sent out was appropriate.
Dr Prifti was asked in cross-examination about the adequacy of the AECOM Report in assessing compliance with the resource recovery exemptions. Dr Prifti disagreed with the suggestion that the testing in the AECOM Report completed almost two and a half years after the material in Stockpiles 1 and 2 had been sent to Lot 8 could not be used to test the compliance of the material when it was first produced.
It was put to Dr Prifti that if the material was sent from the processors in compliance with the CPRF exemption during the charge period yet was found to be non-compliant in the results of the AECOM Report completed almost two and a half years later the material would nevertheless be compliant for the purposes of the CPRF exemption. Dr Prifti disagreed that the material would still be compliant. She stated that the CPRF exemption would still require that all material supplied met the chemical concentrations.

[67]

Consideration of s 144(1) offence

The parties' respective arguments reflect entirely different constructions of the system of waste regulation in NSW underpinning the s 144(1) charge and consequently entirely different approaches to the operation of that system. The EPA's principal case made no reference to the two waste recovery exemptions (ENM and CPRF) in issue. This was no doubt because the EPA submitted that Grafil bore the onus of proof that these applied, a matter I address below. In order to have some understanding of the nature of the evidence relied on it is useful to identify the overall legal context before and during the charge period as this is directly reflected in the evidence obtained by the EPA. The two resource recovery exemptions are front and centre in the legal scheme applying to these offences and hence to the evidence adduced.
To summarise the legal regime, resource recovery exemptions for recovered fines and ENM have been created under cll 51 and 51A of the Waste Regulation most recently in 2010 and 2012. The ENM exemption refers to "consumers" and "generators" in the dictionary to the exemption in Condition 6 whereas the dictionary to the CPRF exemption refers to consumers and processors. A "consumer" is defined in identical terms in both exemptions save for the reference to either ENM or recovered fines in the respective exemptions. A "generator" for the purpose of the ENM exemption is defined as "…a person who generates excavated natural material for supply to a consumer." A "processor" for the purpose of the CPRF exemption is defined as "…a person who processes, mixes, blends, or otherwise incorporates 'continuous process' recovered fines into a material for supply to a consumer."
Before, during and after the charge period, processors being principally four recycling facilities (Bingo, KLF, Aussie Skips and BBR) received waste often in skip bins from building sites. This material was sorted and processed to create recovered fines (KLF, Aussie Skips and BBR) and ENM (Bingo) where possible. The processors are forbidden under their EPLs to receive asbestos. The Court does not understand it is disputed that all of the processors have asbestos management plans directed to removing asbestos. The exemptions require detailed sampling and testing for certain chemicals and particle size in the CPRF exemption (Conditions 8,10,11,12 CPRF exemption), and chemicals in the ENM exemption (Conditions 8,10,11,12 ENM exemption). ENM must not contain asbestos according to the ENM exemption (Condition 6). The processors must certify to consumers that the processed material is recovered fines or ENM which meets the exemption testing requirements and chemical concentration and particle size criteria (Condition 8.7 CPRF exemption, Condition 8.5.2 ENM exemption). As a result the material can be supplied to consumers under the exemptions. Consumers receive the material often via transporters as in this case. They must comply with certain requirements as to the use and placement of the material specified in the exemptions. If the exemptions apply, no EPL is required by consumers for storage or disposal of the material as waste.
A minor difference between the ENM and CPRF exemptions concerns how the material may be used. Condition 7.2 of the ENM exemption states that ENM "…can only be applied to land as engineering fill or used in earthworks." The CPRF exemption in Condition 7.2 states that recovered fines "…can only be applied to land for the purposes of construction or landscaping." This approval in the CPRF exemption does not apply to various uses listed in Condition 7.2 including the construction of private roads unless the four requirements in Condition 7.2.7 are met. Condition 7.2.7 requires that for the construction of a road the waste must be applied (a) to the minimum extent necessary and (b) only where a development consent has been granted under the relevant environmental planning instrument (EPI) or (c) is to provide access to a development approved by council or (d) the works undertaken are exempt or complying development.
Lot 8 came to the attention of EPA officers as a result of Operation Trojan under which an investigation of where processors and transporters were causing material such as exempt waste to be transported out of Sydney was conducted by the EPA before and during the charge period as outlined above in [48]-[50]. That similar material to that the subject of this charge was used at several other locations for purposes such as construction of flood mounds was identified in the cross-examination of Mr Mulligan a transporter set out at [114] above. Leading up to and during the charge period several transporters largely organised by Bulk Logistics were paid by the four processors to deliver material certified as ENM and recovered fines to various locations out of Sydney including to Lot 8. It is important to note that the EPA accepted in the course of the hearing that the material sent out by Bingo as ENM satisfied the ENM exemption processor requirements which means it accepted that the ENM from Bingo did not contain asbestos.

[69]

Precise volume of material in Stockpiles 1 and 2 unknown

Substantial evidence was adduced by the EPA as to the volume of material in Stockpiles 1 and 2. The volume of material alleged by the EPA is disputed by Grafil. Extensive primary evidence in the form of invoices and delivery dockets from processors and transporters showing loads going to Lot 8 was in Exhibit A (see [102]-[106], [162]-[167] above). Ms Moore created an extensive 29 page spread sheet (Exhibit D) collating the primary evidence which she presented as an accurate summary of the records in Exhibit A. The spread sheet was found in cross-examination to be deeply flawed overstating by 46.5 percent the amount of material alleged to have been deposited on Lot 8 based on these records (see [177] above).
A revised spread sheet (Exhibit R) was prepared by Ms Moore who gave further oral evidence. One line purporting to show the total summary tonnage (coloured red) in Exhibit R was revised by Ms Moore. After further cross-examination (summarised at [177]-[182] above) the reliability of Exhibit R was also successfully questioned. Ms Moore was asked about her understanding of the subcontracting arrangements between the transporters and agreed that her misunderstanding had led to duplicate and triplicate entries in Exhibit R. She agreed that the application of an Excel formula to the spread sheet had been inadequate to fully rectify these errors. Ms Moore also agreed that she had included records of loads which went to other properties (see [181]-[182] above) and in some cases fell outside the charge period.
Grafil submitted that the Court could not rely on any of the primary documents exhibited to Ms Moore's affidavit nor could it rely on either of the spread sheets in Exhibits D and R in relation to the amount sent to Lot 8 by the four processors. I agree.
In the EPA's closing written submissions, the amount of material sent to Grafil from the four recycling centres was submitted to be in excess of 20,000 tonnes based on the "summary tonnes" tab in Exhibit R. In oral submissions, the EPA estimated that this was closer to 24,667 tonnes. The EPA submitted that the total tonnage sent to Lot 8 according to the AECOM Report was 45,679 tonnes. The BMA 2013 survey showed the combined volume of Stockpiles 1 and 2 to be 47,430 tonnes and the BMA 2015 survey showed the volume to be 45,560 tonnes. In closing, Grafil stated the volume of Stockpiles 1 and 2 was unknown on the evidence with a range of approximately 24,000 tonnes to approximately 44,000 tonnes possible. This appeared to be accepted by the EPA.
The calculations of volume in the BMA 2013 and 2015 surveys are also unable to be relied upon as accurate estimations of the volume of Stockpiles 1 and 2. In cross-examination Mr McClenahan agreed that he had initially calculated the volume of Stockpiles 1 and 2 on the assumption that the ground beneath them was flat. Mr McClenahan was shown an image of Lot 8 before the BMA 2013 survey which showed mounds where Stockpile 1 was to be located. He agreed that the presence of material underneath Stockpile 1 would change the volume. Having not been provided with a ground survey of Lot 8 prior to undertaking the BMA 2013 or 2015 surveys Mr McClenahan was unable to say if the volume of Stockpiles 1 and 2 would therefore be less than initially estimated. Grafil submitted that an aerial photograph dated 5 September 2012 (Exhibit 38, also in Exhibit A) showed that Stockpile 1 was at least in existence prior to the charge period.

[71]

Content of material in Stockpiles 1 and 2

In relation to the content of the material in Stockpiles 1 and 2 during the charge period the EPA did not attempt to prove what was placed on Lot 8 in any individual load. In closing it relied on the observations of Mr Bourne as to what he observed on Lot 8 on 15 May 2013, cross-examination of Mr Bourne that the composition of Stockpiles 1 and 2 were similar, photographs taken on 15 May 2013 which were annexed to the affidavit of Ms Bell dated 2 August 2016 and the observations EPA's counsel made as recorded in the video of the Court view (Exhibit F). The composition of Stockpile 1 in the benched area was described as including whole bricks, terracotta pipes over 20 centimetres in length and other similar sized pieces of construction were visible on the smaller stockpiles sitting atop Stockpile 2. Reliance was also placed on statements attributed to Mr Mackenzie during his first ROI on 15 May 2013 walking around the site. It was submitted that Mr Mackenzie made a number of admissions as to the source and nature of the material comprising Stockpiles 1 and 2 in his second ROI on 11 June 2014 as follows: 1. That the material which comprised Stockpiles 1 and 2: 1. was received in accordance with a letter stating "at the start, I don't know where it is, but something they had to follow to say that it was (indistinct). There was a description of what I was going to use it for, for roads" (Q 111); 2. was "welcomed" onto the site by Mr Mackenzie (Q 112) and was brought in at random by the various trucking companies (Q138); 3. came from "those blokes…bringing (it) out of Sydney. We're going to use it to build a road" (Q 98); 4. was being stored at the site "because I was going to build a road out of it" (Q 132); 5. had not been processed by any company of Mr Mackenzie's (Q 133); 6. was, in respect of each of the Stockpiles, in excess of 2,500 tonnes (Q 137); and 7. "doesn't look clean" (Q 142) and "doesn't look that good does it" (Q 128).
On 15 May 2013, Mr Mackenzie further stated to EPA officers Ms Moore and Mr James that he was "shocked about what we have found".
All of this evidence was relied on in part to establish that the material in Stockpiles 1 and 2 was waste. In cross-examination Ms Moore agreed that most of the material in Stockpiles 1 and 2 resembled dark soil matter.
I note that if the CPRF and ENM exemptions apply to the material in Stockpiles 1 and 2 in the manner contended for by Grafil the evidence relied on by the EPA in relation to the volume and content of the material and Mr Mackenzie's statements set out above in [248] are irrelevant. No EPL is required and the disposal and storage requirements in cll 39 and 42 of the Waste Regulation do not apply. I consider these matters below in relation to the second and third elements of the s 144(1) offence.
For that reason I will not at this stage consider the extensive evidence during the trial directed to ascertaining whether the transcript of Mr Mackenzie's first ROI on 15 May 2013 prepared by Mr Bourne was accurate. Large sections of the first ROI were played line by line in court while Mr Bourne was in the witness box and numerous clarifications and corrections of statements attributed to Mr Mackenzie were identified. A major difficulty in understanding the recording was that large portions were affected by wind noise which obscured words spoken.
Grafil has identified a number of bases on which it contends the EPA cannot succeed in relation to the second element of the s 144(1) offence in relation to the use of Lot 8 as a waste facility. The operation of the resource recovery exemptions is also in issue which concerns the third element of the s 144(1) offence. In addition whether a continuing offence is proved and separately whether the prosecutions are time-barred by the relevant statutory limitation period are identified as issues.

[74]

EPA submissions

The EPA submitted that the material deposited on Stockpiles 1 and 2 was "waste" as defined in the POEO Act. It was discarded, rejected, unwanted or surplus to the needs of both the original owners of the material and the processors who paid for it to be removed from their premises. Each of the four recycling facilities charged a fee in connection with the receipt of waste materials at their respective premises. The materials were provided free of charge to Grafil, including with respect to transportation costs. That Grafil was not required to pay for any of the waste materials that were delivered to Lot 8 demonstrates there was a financial advantage to the recycling facilities in disposing of the waste by having it trucked to Lot 8, rather than transporting it to a licensed waste facility (Environment Protection Authority v Terrace Earthmoving Pty Ltd (No 3) (2016) 217 LGERA 222; [2016] NSWLEC 50 (Terrace Earthmoving (2016)) at [130]).
In almost identical factual circumstances Sheahan J in Environment Protection Authority v Foxman Environmental Development Services [2015] NSWLEC 105 (Foxman) found that fines material at Mr Foxman's yard (which was owned by BBR) satisfied par (b) of the definition of "waste" and the term in ordinary parlance. This was because, as a consequence of space and stockpile limitations at BBR's facility, the material was "surplus" and "unwanted" to the needs of BBR as the processor (at [187]-[188]). During his evidence in these proceedings, Mr Foxman confirmed that the same restrictions with respect to stockpile limits as arose in Foxman required BBR "to get rid of [the recovered fines], I got Ed Gilder to get rid of it for me".
In relation to the waste recycling facility operated by KLF, Mr Scarlis said during his ROI dated 19 June 2014 with EPA officers (summarised above at [157]-[161]) that, in relation to recovered fines "we get rid of it, all of it". Mr Ulizzi said the same in his ROI dated 17 June 2014 with EPA officers - "we pay to get rid of it". In respect of ENM, a similar positive proposition was put to Mr Ryan of Bingo by the defendants' counsel, namely that it was "relatively hard to get rid of ENM in the market", to which Mr Ryan's answer was "Yes. Very much so". The material therefore meets par (b) and ordinary parlance definitions of "waste".
In relation to par (a) of the definition of "waste", in the opinion of the EPA's expert Dr Martens in his report exhibited to his affidavit sworn 20 September 2016 the whole of the material comprising Stockpiles 1 and 2 created an alteration to the local environment in terms of topographical and hydrological effects. Each stockpile has altered the relatively flat local environment by creating mounds which have altered the direction of surface water runoff. The character of surface water run-off and ground water leachate at Lot 8 would now likely be different to that created by the natural in situ materials. The chemical composition of the materials comprising the stockpiles, especially in relation to analytes that exceed the maximum allowable limits under any relevant exemption, serve to increase the deleterious alteration to the environment by way of the concentration of leachate discharge. A series of ponds and drains which had been constructed on Lot 8 would also likely intersect with the seasonal water table given the sandy nature of the native soils.
In cross-examination Dr Martens agreed that he had not been to Lot 8 and therefore did not have personal knowledge of the nature of the topography of Lot 8 prior to placement of the stockpiles. Dr Martens said that he had viewed aerial photographs and a topographical map and therefore had a general understanding of the topography of Lot 8. The view on 16 February 2018 demonstrated that Stockpiles 1 and 2 have caused a significant alteration to the local topography at Lot 8. The material thus meets par (a) of the definition of "waste" as it has been deposited at Lot 8 in such volume, constituency or manner as to cause an alteration to the environment.
Stockpiles 1 and 2 also satisfy par (d) of the POEO Act dictionary definition of "waste" being recycled, re-used or recovered substances produced wholly or partly from waste that was applied to land by way of deposition (cl 3B(1)(a)(i) of the Waste Regulation).
Should Grafil argue that the materials were intended to be made the subject of further refinement or processing for the purposes of the road construction project then they would also meet par (c) of the definition of "waste". That is, as "any otherwise discarded, rejected, unwanted, surplus or abandoned substance intended for recycling, processing, recovery or purification by a separate operation from that which produced the substance" (see Terrace Earthmoving (2016) at [86]-[88]).

[76]

Material in Stockpiles 1 and 2 not "waste"

Principles of statutory construction must be applied in construing the definition of "waste". As discussed by the Court of Appeal in Shannongrove Pty Ltd v Environment Protection Authority (2013) 84 NSWLR 668; [2013] NSWCCA 179 (Shannongrove) at [24] their application can be challenging in the context of the complicated waste provisions of the POEO Act (Basten ACJ, Hall J and Barr AJ agreeing). Section 33 of the Interpretation Act 1987 (NSW) requires a construction which promotes the purpose or object of an Act over one which would not. The words of a statute must be considered in their context per Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]-[70] where McHugh, Gummow, Kirby and Hayne JJ stated that the "primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute", that a "legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals" and that "a court construing a statutory provision must strive to give meaning to every word of the provision." Brennan CJ and McHugh J in IW v City of Perth (1997) 191 CLR 1; [1997] HCA 30 at 11 also referred to the necessity of applying a construction of a statute consistent with its purpose.
Where words are plain and unambiguous they should be given their ordinary and grammatical meaning, Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 at 305 (Gibbs CJ). In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47] (Hayne, Heydon, Crennan and Kiefel JJ) confirmed that statutory construction commences with a consideration of the language of the text, which may require consideration of the context, including the general purpose of the provision and the mischief it seeks to remedy.
The definition of "waste" identifies five subparagraphs separated by "or". The usual construction of "or" is as a disjunctive. The EPA's approach seeks to apply several of the subparagraphs of the definition of "waste" namely pars (a), (b) and (c) as well as (d) to the material in the stockpiles.
Given the complexity of applying the definition of "waste" as reflected in Shannongrove and Terrace Earthmoving (2013) it is important to understand the nature of the waste the subject of those judgments. The waste in both cases was not recovered fines prepared in accordance with the exemptions relevant to this case (or any other of the resource recovery exemptions made under cll 51 and 51A). Basten ACJ wrote the principal judgments in both cases, referring in Terrace Earthmoving (2013) to his reasoning in Shannongrove.
Shannongrove was a stated case considering an offence under s 143(1) (unlawful transport of waste) the timeline of which straddled amendments to the definition of "waste" in May 2006 resulting in two charges. Until the 2006 amendment a special definition of "waste" in s 143(4) had applied to offences under s 143(1). The waste in question was liquid by-product of organic waste treatment which the defendant collected and transported to a farm where it was used as a fertiliser. The farm was not a waste facility as defined in the POEO Act. At issue was whether the liquid was waste as defined under the POEO Act. Basten ACJ (Hall J and Barr AJ agreeing) made observations about the principles of statutory construction as they might apply in the complicated waste control statutory scheme, referring to the objects of the POEO Act as being too general to assist in the statutory construction task before the court. Section 33 of the Interpretation Act and the use of extrinsic material as referred to in s 34 of the Interpretation Act were identified. At [21] Basten ACJ stated that par (d) expands the definition of "waste". In considering the definition of "waste" Basten ACJ at [24] remarked that: [s]tatements of principle applicable to statutory construction can result in an over-sophisticated formulation with reliance on a variety of presumptions, maxims and rules. On the other hand, failure to articulate the approach being undertaken is liable to give rise to inconsistency and a lack of transparency. Although the legislative regime regulating the transport and disposal of waste is complex, it is desirable that, where possible, the language used should be construed in a manner which is reasonably accessible to those whose activities are subject to regulation.
The reasoning in relation to the first charge need not be considered for current purposes. In relation to the second charge, the repeal of s 143(4) and the insertion of par (d) in the POEO Act dictionary definition had the effect of expanding the definition of "waste" to include where a substance "is or may be processed, re-used or recovered" at [40]. Basten ACJ stated at [41] that the likely effect of this change would be "…to include material which would not ordinarily be described as waste and [would] thus constitute an expansion of the ordinary meaning of the term."
On another point Basten ACJ at [11] noted that the definition of "waste" in par (d) and in s 143: …purported to be inclusive rather than exhaustive. That raises a question as to whether the intention is that "waste" has an ordinary meaning, of which the specified characteristics are examples, or to which they are extensions.
I note that Grafil relied on parts of Shannongrove, particularly [37], in submitting that the recovered fines transported to Lot 8 could not be waste because they were a paying load for transporters or free fill for land holders in the low-lying Hunter region satisfying par (c) of the definition of "waste". That argument was not pressed by Grafil in any event.
The principles of statutory construction outlined above in [264]-[265] and Shannongrove confirm at a broad level the approach to statutory construction of Grafil in looking at the important change to the definition of "waste" made in 2006 with the addition of (d) and the reasons for that. Waste strategies by Resource NSW and later the EPA were created in 2003, 2007 and 2012/13, identified in [21], [22] and [23] above. Importantly the WARR Strategy 2007 identified (p 33) the need for the amendment of the definition of "waste" in the POEO Act and the creation of recovery resource exemptions, the forerunners to those the subject of this judgment. Waste falling within par (d) was intended to be exempt from the regulatory requirements for waste if it was beneficially applied, did not cause environmental harm and was fit for purpose.
As noted in [21] above the EPA objected to the tender by Grafil of the WARR Strategy 2003 (Exhibit 35), the WARR Strategy 2007 (Exhibit 36) and the WARR Strategy 2012/13 (Exhibit 37) as not relevant and not permissible under s 34 of the Interpretation Act. Grafil submitted that to properly explain the waste scheme in issue, regard must be had to the legal and policy context, which is necessarily informed by the WARR Act and WARR Strategies. I agree. These extrinsic documents prepared by the entities of the NSW Government charged with responsibilities under the WARR Act provide important context for the introduction of par (d) and support Grafil's construction. Application of the definition of "waste" must reflect the facts of a case and here the material falls squarely into par (d) which is therefore the first part of the definition which should be considered. As par (d) applies there is no basis in statutory construction terms for applying any other paragraph of the "waste" definition.
The EPA referred to Harrison v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380 Spigelman CJ at [12]-[14] in asserting that statements of intention in second reading speeches are not useful in determining the meaning of particular words in statutes, nor is the subjective intention of Parliament relevant. That can be accepted as a general submission but the extrinsic material relied on by Grafil is directed to identifying the purpose of the waste regime under consideration and provides important context.
Terrace Earthmoving (2013) was a stated case decided at the same time as Shannongrove concerning the meaning of "waste" also in relation to an offence under s 143, being the unlawful transport of demolition and excavation waste. Two charges were instigated due to amendment of the definition of "waste" in 2006 as occurred in Shannongrove. For the first charge period the relevant definition of "waste" appeared in s 143(4). For the second charge period the amended definition of "waste" was considered. Basten ACJ stated: [42] Importantly, there was also a variation in its [par (b)] language. Thus, the second sentence in s 143(4) stated: A substance is not precluded from being waste merely because it may be reprocessed, re-used or recycled. In the Dictionary definition, after the amendments, the equivalent sentence read: A substance is not precluded from being waste for the purposes of this Act merely because it is or may be processed, recycled, re-used or recovered. (The differences from s 143(4) are italicised.) [43] The insertion of the word "is" was probably referable to the inclusion of a new par (d), in the following terms: (d) any processed, recycled, re-used or recovered substance produced wholly or partly from waste that is applied to land, or used as fuel, but only in the circumstances prescribed by the regulations …. This addition is significant: it gives force to the conclusion that where waste has been processed, recycled, re-used or recovered, it will cease to be waste, except in prescribed circumstances. That is consistent with the preferred reading of the second sentence of s 143(4), namely that the capacity of a substance to be reprocessed etc is not relevant but, by inference, the fact of reprocessing etc is significant and generally terminates the characterisation of the substance as waste. [44] The point may be taken a step further: even if par (b) was relied upon as the basis of the prosecution, that did not mean that, in construing the terms of that paragraph, consideration was not to be given to the surrounding elements of the definition. In particular, it would have been appropriate to have regard to par (c) and to the final sentence. According to that element of the definition, a substance which is discarded etc, but is intended for sale or recycling etc, is nevertheless waste. The construction set out above accepted that the possibility of such an intention in a third party did not prevent material being waste: par (c) suggests that such an intention held by the original owner may also not preclude the material being waste, although arguably that merely clarified the original meaning.
The reasoning in [43] of Terrace Earthmoving (2013) directly supports Grafil's contention that material which falls under par (d) does not also fall under other parts of the definition of "waste" and further that material under par (d) is not waste unless the prescribed circumstances in par (d) apply.
The only case with some factual similarity to this matter is Foxman as the material in question in that case, being construction and demolition waste, required consideration of the CPRF, BPRF and the Recovered Aggregate exemptions. Foxman involved six charges against Mr Foxman personally, Foxman Environmental Services Pty Ltd (FEDS) and BBR. FEDS was charged under s 144(1) for using land as a "waste facility" without lawful authority. BBR was the subject of two charges under s 143(1) for causing waste to be transported to a place (FEDS land) for two separate periods of time. Mr Foxman was charged personally with three offences by reason of s 169(1) namely that he committed the offences of FEDS and BBR as a director. In relation to the charges involving BBR and Mr Foxman as its director it was alleged that the waste contained asbestos. All defendants pleaded not guilty to all charges. Mr Foxman did not have the benefit of legal representation to address a complex statutory scheme.
Sheahan J concluded at [184]-[186] that the material met the definition of "waste" in par (a) and at [187]-[188] that the material met the definition in par (b) of a "discarded, rejected, unwanted, surplus or abandoned substance" and was also waste within par (d) at [205]. I do not consider that the approach to the definition of "waste" in Foxman is correct and note that Sheahan J was not apparently referred to Shannongrove or Terrace Earthmoving (2013) which I have found support Grafil's approach to construction. Given Mr Foxman's lack of legal representation there was effectively no contradictor to the EPA's construction argument, which was essentially the same argument I have heard in this case.
The correct approach on the evidence before me to the construction of par (d) is that the material in issue was processed, recycled, re-used or recovered substance produced wholly or partly from waste that was to be applied to land. The evidence of Mr Mackenzie's intention to apply the material to land for a road is set out below in [380]-[381]. Due to the intervention of the EPA on 15 May 2013 this did not occur. The definition in par (d) does not refer to the production of material being in accordance with a resource recovery exemption as necessary to satisfy the definition of processed or recovered substances. I find below that the material in Stockpiles 1 and 2 did satisfy the CPRF exemption in the charge period. The EPA does not dispute that a substantial amount of ENM (in the vicinity of 10,000 tonnes) was received from Bingo in the charge period. That evidence confirms beyond doubt in this case that the material came within the definition in par (d).
If par (d) applies as it does in this case, given that the vast majority of material has been treated by the four processors under two resource recovery exemptions, then no other subparagraph of the definition of "waste" applies.
Further, I accept Grafil's submission that the material only becomes waste when the processed or recovered substance produced wholly from waste is applied to land (or used as fuel, not presently relevant) in circumstances prescribed by the regulations. That is what the definition states. As Grafil submitted that provides further statutory context to support a finding that the material cannot be waste under another of the paragraphs in the definition of "waste" as all of par (d) would not otherwise have any work to do. Such an approach would defeat the express qualifications in par (d) or circumvent those qualifications when there is a clear intention that they must apply.
In an example provided by Grafil, a substance falling within the description of "any processed, recycled, re-used or recovered substance produced wholly or partly from waste" could be "surplus" within the meaning of par (b) of the definition of "waste". If the substance is "waste" under par (b) of the definition, the words in par (d) that "waste" captures a substance "that is applied to land or used as fuel, but only in the circumstances prescribed by the regulations" will have no work to do. Those qualifications must be applied to the specific class of substances to which par (d) is directed.
Subparagraphs (a), (b) and (c) of the definition of "waste" do not apply to the materials in Stockpiles 1 and 2 the subject of these charges. It follows that I do not consider relevant the EPA's submission relying on Dr Martens' opinion evidence that the material came within par (a) of the definition because it had caused a significant alteration to the environment. Nor is the evidence of the processors to the effect that the material was unwanted and surplus which they paid to have removed from their premises by transporters relevant to support a finding the material came within par (b) of the definition.
The material in Stockpiles 1 and 2 coming within par (d) is not waste if it has not been applied to land in the circumstances specified in a regulation. Consequently, the issue that next arises is whether application to land has occurred, a matter of dispute. Whether cl 3B of the Waste Regulation applies arises in this context. In addition, whether application to land has occurred is relevant to whether cl 39 "Waste disposal (application to land)" or cl 42 "Waste storage" in Sch 1 applies.

[80]

Material temporarily stockpiled not applied to land

At issue is whether during the charge period the material in Stockpiles 1 and 2 was applied to land. Statutory construction of cll 39(1) and 42 is necessary. The EPA's approach is informed by consideration of the evidence.
There is no definition of "application to land" or "storage" in the POEO Act or Waste Regulation. The ordinary meaning of the words viewed in their statutory context must be considered. The Macquarie Dictionary Online (2016) defines "application" as "1. the act of putting to a special use or purpose… 2. the quality of being usable for a particular purpose or in a special way… 5. the act of applying…" "Storage" is defined as "1. the act of storing. 2. the state or fact of being stored. 3. capacity of space for storing… 5. a place where something is stored…" Limitations on the use of dictionary definitions are well recognised as not providing a substitute for construing words in their context (see House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 at [28] (Mason P, Stein and Giles JJA agreeing)).
Dr Martens' engineering opinion of what he considered to be application to land was the placement of material on bare soil with possible intermingling of the two due to earthworm activity, erosion by rain and settlement under their own weight. As was highlighted in cross-examination and as Grafil submitted his opinion would result in no temporary stockpiling being permissible under the POEO Act. I agree with Grafil that the EPA's construction of cl 39 relying on Dr Martens' opinion makes no distinction between deposition of material on land and its application to land. The EPA's approach would result in the impractical outcome that material must be applied directly to the project it is required for as no temporary stockpiling would be lawful. The EPA appeared to accept this was a difficulty in relation to the use of the resource recovery exemptions, pars 122 and 123 of its closing submissions stating that concomitant storage of fill materials by a consumer in connection with end uses specified in Condition 7.2 of the CPRF exemption may be exempted if remaining conditions have been complied with. The EPA's submissions went on to argue in par 124 that as Grafil was not a consumer for the purposes of the exemption it did not have that benefit, a different matter I deal with below commencing at [500].
I agree with Grafil's submission (and implicitly the EPA's) that the distinction between temporary stockpiling and application to land/storage is recognised in the resource recovery exemptions. In the CPRF exemption Condition 7 conditionally permits recovered fines to be "applied to land", including for the purposes of some classes of road construction. Condition 9.3, in stating that "[t]he consumer must land apply the relevant waste within a reasonable period of time" contemplates that a consumer might need to temporarily store material before it is actually applied to land. Immediate application to land is not a realistic interpretation when it comes to the use of recovered fines for the permitted construction, landscaping and road purposes identified in Condition 7 of the CPRF exemption. If temporary stockpiling of such materials on the ground, or activities inherent in their temporary storage constituted application of the materials to land, these clauses of the CPRF exemption could not arise.
The chapeau of cl 39(1) refers to waste disposed of by application to land. These words must first be found to apply before subcl (1)(a), (b) and (c) can be considered. The subclauses do not qualify the words in the chapeau, contrary to the EPA's submission which referred to subcl (1)(a) to submit that as the material was spread or deposited in Stockpiles 1 and 2 it was applied to land.
I consider application to land as highlighted in the dictionary definition of "application" being for a (special) use or purpose requires more than placement on land temporarily before its application to land for the intended purpose, here a road. Consideration of the broad dictionary definition of "storage" is not of great assistance in the statutory construction task in this case.
Further the EPA's construction makes no distinction between cll 39 (application of waste to land) and 42 (waste storage). The two clauses should be given separate work to do or there is no point in having them, in accordance with the principle of statutory construction that all words in a statute should be given meaning and effect as I found in Awabakal Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 124 at [45] citing Project Blue Sky Inc v Australian Broadcasting Authority at [71] (McHugh, Gummow, Kirby and Hayne JJ) citing Commonwealth v Baume (1905) 2 CLR 405; [1905] HCA 11 at 414 (Griffith CJ).
The EPA's oral contention that application to land does not occur if material is placed on a slab or artificial surface but does occur if material is placed on bare ground has no support in the statute or in the CPRF and ENM exemptions.
In light of the evidence of Mr Mackenzie and others (see [380]-[384] below) the material was being temporarily stockpiled during the charge period pending its use as road base. Once used as a road base it would be applied to land. That it was not applied to land was a consequence of the EPA's actions on 15 May 2013 as Grafil submitted.
The EPA has not established beyond reasonable doubt that the material was waste disposed of by application to land. Clause 39 does not arise as a matter of statutory construction and on these facts.
As the EPA took the same approach to cll 39 and 42 on one view it is unnecessary to separately consider cl 42 in light of my finding immediately above. If the EPA had relied separately on clause 42 it would also not have been relevant on the facts of this case given the evidence of Mr McKenzie and others about the intended use of the material. A distinction should be made between the temporary stockpiling of material for the purpose of applying it to land for road construction and the separate activity of storage of waste. I make that finding aware that cl 42 refers to the storage of waste including for transfer. The evidence does not establish that Stockpiles 1 and 2 were being used for storage pending the transfer of material. The material was intended to be applied to land owned by an entity closely related to Grafil and engaged with Grafil in the same enterprise. The evidence of Mr Mackenzie's intended use of the material in Stockpiles 1 and 2 supports a finding of temporary stockpiling not storage to which cl 42 applies.

[85]

Operation of resource recovery exemptions

On the assumption contrary to my finding above that Grafil did use Lot 8 as a waste facility to which waste was brought and required an EPL pursuant to cl 39 and/or cl 42 of Sch 1 of the POEO Act I will consider the third element of the offence.
A complete answer to the third element of the offence concerning the requirement to hold an EPL (lawful authority) is the application of the ENM and CPRF exemptions to the material deposited in Stockpiles 1 and 2 on Lot 8. As already identified above in [235] these charges require a fundamental consideration of the operation of the statutory waste scheme particularly as it applies to resource recovery exemptions made under cll 51 and 51A of the Waste Regulation and how asbestos is regulated. Clause 51A provides that the EPA may make an exemption under cl 51 for waste that is waste by virtue of par (d) of the definition of "waste" in the Dictionary to the POEO Act. The provisions of the POEO Act which require an EPL to dispose of or store waste above a certain tonnage do not apply if material satisfies the CPRF exemption and the ENM exemption by virtue of cl 51A(1)(2). The CPRF exemption exempts classes of people identified as "consumers" from the requirement to hold an EPL to apply material which comes within par (d) of the definition of "waste" to land.
In addition to the different treatment of asbestos there are other important differences between these two exemptions. The consumer responsibilities under the ENM exemption in Condition 9 require that the ENM is "…fit for purpose and poses minimal risk of harm to human health or the environment" (Condition 9.2). The CPRF exemption has no requirement that consumers ensure the material is fit for purpose or that it does not pose a risk to human health or the environment. The CPRF exemption requires consumers to use material only for certain purposes and not deposit it in or beneath water (see Conditions 7.2 and 9.2). Further, the ENM exemption allows for sampling of in situ stockpiled ENM (Condition 11.2 Tables 4 and 5) to test for compliance with the chemical and material properties in Condition 10 Table 2. According to Condition 8.4 sampling of in situ material is the responsibility of the generator. There is no equivalent condition in the CPRF exemption for sampling of in situ stockpiled material.
I note that the EPA accepts that the ENM brought from the Bingo recycling centres complied with the chemical parameters of the ENM exemption and did not contain asbestos. The EPA disputes that Grafil has complied with the consumer responsibilities under the ENM exemption and submits Grafil cannot therefore benefit from it. It also seeks to visit on Grafil alleged failures by three of the processors (KLF, BBR and Aussie skips) to correctly sample and test processed building and demolition waste at their premises under the CPRF exemption. Some of the consumer responsibilities under the CPRF and ENM exemptions are the same. Both require the consumer to keep records of the quantity of material received for three years (ENM Condition 9.2, CPRF Condition 9.1) and to apply the material to land within a reasonable period of time (ENM Condition 9.2, CPRF Condition 9.3). The CPRF exemption also requires that material must not be applied in or beneath water including groundwater (Condition 9.2).
The EPA argued the resource recovery exemptions should be strictly applied with the notes at the end of each exemption able to be considered at most and submitted that no further material was relevant to their construction. Grafil tendered the WARR Strategy 2003 (Exhibit 35), the WARR Strategy 2007 (Exhibit 36) and the WARR Strategy 2012/13 (Exhibit 37). I have already had regard to these in the context of the amendment of the definition of "waste" in 2006 and its application as discussed above in [22]. I agree with Grafil that the Interpretation Act is irrelevant as the exemptions are not statutes (or delegated legislation) which the section applies to. Grafil submitted that to properly explain the resource recovery exemptions regard must be had to their legal and policy context, which is necessarily informed by the WARR Act and WARR Strategies. I agree.
As Grafil submitted, cl 51 of the Waste Regulation was made when the Waste Regulation was first enacted in 2005. The definition of "waste" was amended in May 2006 to include par (d). In 2008 minor amendments were made to cl 51 and cl 51A was introduced. Following the introduction of cl 51A, the EPA promulgated the first set of resource recovery exemptions in May 2008, including the first CPRF exemption and the first ENM exemption. These instruments were promulgated by the EPA to implement the WARR Act and WARR strategies outlined above at [19] and [21]-[23]. The exemptions conditionally exempted classes of "responsible persons", namely "processors" and "consumers" or, in the case of ENM "generators" and "consumers" from the obligation to hold an EPL when carrying out certain activities in relation to processed or recovered substances derived wholly or partly from waste, thus facilitating the recovery and re-use of these materials.
It is necessary to construe the resource recovery exemptions in force during the charge period. The two directly relevant to the evidence are the CPRF exemption 2010 and the ENM exemption 2012, both of which are wholly or partly extracted at [16] and [17] respectively above. As Grafil submitted, while the resource recovery exemptions are gazetted instruments they are not drafted under the legislative drafting process of statutes or regulations. They cannot be assumed to have been drafted by a lawyer. They require a practical approach to construction and the strict rules that apply to legislation and delegated legislation do not apply. They should be construed sensibly and practically as a whole and in light of the statutory scheme of which they form a part. While made under the Waste Regulation, their interpretation can be informed by the WARR Act and WARR Strategies summarised above at [19] and-[21]-[23] for the reasons provided by Grafil.
The WARR Strategy 2003 provided targets and strategies to avoid waste by facilitating re-use and recycling. The WARR Strategy 2007 published by the EPA existed during the charge period. It explained the connection between the amendment to the definition of "waste" in the POEO Act and the soon to be promulgated resource recovery exemptions. Waste falling within par (d) of the definition of "waste" would be exempted from the POEO Act requirements for waste where it met the requirements of the resource recovery exemptions, namely that it was beneficially applied, did not cause harm and was fit for purpose. This was intended to provide greater certainty to industry in relation to resource recovery (see the WARR Strategy 2007 summarised above at [22]). I also accept Grafil's submissions that the resource recovery exemptions are intended to have a beneficial effect and to facilitate the WARR Strategy 2007, including its specific targets for recovery of secondary resources and the consequential diversion of them from landfill. That was the intention of these instruments during the period that the offences were alleged to have been committed (see the WARR Strategy 2003 summarised above at [21]). I agree with Grafil they should be construed accordingly.
An objective of the resource recovery exemptions is to allow the beneficial re-use of substances recovered or processed from waste in a way which ensures protection of the environment. That re-use is subject to conditions. I agree with Grafil the conditions should not be construed in a way which defeat or undermine the beneficial effect they are intended to have.
Grafil relied on the following authorities to submit that other instruments, such as development consents, are interpreted in the same way: Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd [2017] NSWCA 263; (2017) 226 LGERA 54 at [29] (McColl JA), [56] (Leeming JA), [158] (Payne JA), Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245 at [36] (Hodgson JA), Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2008] NSWLEC 181 (Ko-veda (2008)) at [167], Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd (2009) 167 LGERA 395; [2009] NSWCA 160 at [96]-[99], [105] (Tobias JA, Young JA and Bergin CJ in Eq agreeing). See also Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180 at 183, Pearce & Argument, Delegated Legislation in Australia (4th ed, 2012, LexisNexis Butterworths) at [30.3]. As with a development consent, in a case of ambiguity, it is to be construed against the drafter, in this case, the EPA itself: Ko-veda (2008) at [167].
As Grafil submitted, the rule that in cases of ambiguity a construction that does not extend the category of criminal offences is here relevant having regard to the penal consequence of a breach of a resource recovery exemption created by cl 51(10) of the Waste Regulation. This rule has continuing operation: Beckwith v R (1976) 135 CLR 569 at 576 cited in Pearce & Geddes, Statutory Interpretation in Australia (8th ed, 2014, LexisNexis Butterworths) at [9.9].

[90]

EPA has onus of proving that resource recovery exemptions do not apply

The EPA accepts that it bears the onus of proof beyond reasonable doubt in relation to the absence of lawful authority. It submits that the application of the resource recovery exemptions are a matter for Grafil to prove on the balance of probabilities by virtue of s 144(2). The EPA relied on s 417A of the Crimes Act which states: 417A Proof of exceptions (1) Any exception, exemption, proviso, excuse or qualification to the offence (whether or not it is in the same provision with a description of an offence in an Act or statutory rule or document creating the offence) need not be specified or negatived in an indictment or other process commencing proceedings. (2) The exception, exemption, proviso, excuse or qualification may be proved by the accused person. …
That section identifies what occurs if an exception arises. It does not assist in determining if one does. "Whether a provision in a statute is properly regarded as an element of the offence…or an exception…is a matter of statutory construction", Kirby J in El Homsi commencing at [17] citing Vines v Djordjevitch (1955) 91 CLR 512; [1955] HCA 19 and Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249; [1990] HCA 41 (Chugg) applied in DPP v Sadler at [54] per Bellew J .
El Homsi considered s 47A(3) of the Motor Dealers Act 1974. Section 47A(1) set out the offence of interfering with an odometer. Section 47A(3) stated that a person may alter an odometer if they had written approval to do so from the Director-General of the Department of Fair Trading inter alia. Kirby P considered relevant authorities at [17]-[27] citing Vines v Djordjevitch at 519 (Dixon CJ, McTiernan, Webb, Fullagar and Kitto JJ) stating that: …When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications exceptions or provisos and it may employ negative as well as positive expressions. Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision. In other words it may embody the principle which the legislature seeks to apply generally. The High Court in Chugg at 257-259 was referred to: For the purpose of assigning the onus of proof, a distinction is made between a requirement which forms part of the statement of a general rule and a statement of some matter of answer, whether by way of exception, exemption, excuse, qualification, exculpation or otherwise (called an "exception"), which serves to take a person outside the operation of a general rule. See Vines v Djordjevitch (1955) 91 CLR 512, at 519-520. The distinction does not depend on the rules of formal logic: Dowling v Bowie (1952) 86 CLR 136, at 147. Rather, the categorization of a provision as part of the statement of a general rule or as a statement of exception reflects its meaning as ascertained by the process of statutory construction. Where some matter is said to be an exception to an offence, the question is whether there is to be discerned a legislative intention "to impose upon the accused the ultimate burden of bringing himself within it": Director of Public Prosecutions v United Telecasters Sydney Ltd (1990) 64 ALJR 181, at 183; 91 ALR 1, at 6. The intention may be discerned from express words or by implication. See Reg v Edwards [1975] QB 27 and Reg v Hunt [1987] AC 352. (Footnotes omitted). … [I]If a matter accompanies the description of an offence, then it will ordinarily be construed as an element of the offence which the prosecution must prove, unless there is something in the form of the language used or in the nature of the subject matter to suggest that it is an exception upon which the defendant bears the onus of proof. Although the form of language may provide assistance, ultimately the question whether some particular matter is a matter of exception is to be determined "upon considerations of substance and not of form": Dowling v Bowie, at 140. And, of course, the necessity to have regard to substantive and not merely formal considerations is emphasized by the words of s168(1) of the Magistrates (Summary Proceedings) Act and like legislative provisions which make it clear that a matter may be classified as a statutory exception "whether it does or does not accompany the description of the offence". One indication that a matter may be a matter of exception rather than part of the statement of a general rule is that it sets up some new or different matter from the subject matter of the rule. See Darling Island Stevedoring and Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635, per Dixon J at 644. …If the new matter is a matter peculiarly within the knowledge of the defendant, then that may provide a strong indication that it is a matter of exception upon which the defendant bears the onus of proof. (Footnotes omitted).
Kirby P applying these principles at [32] and also citing Dowling v Bowie (1952) 86 CLR 136; [1952] HCA 63 at 139-140 held that subs (3) was an exception to not an element of the offence. It was therefore a matter a defendant must prove on the balance of probabilities in order to benefit from it.
This reasoning was applied in DPP v Sadler by Bellew J in concluding that s 18(2) of the Road Transport (Vehicle Registration) Act 1997 was an exception not an element of the offence. Under s 18(1) use of an unregistered motor vehicle was an offence. Subsection (2) specified the offence in subs (1) did not apply if the vehicle was a certain class prescribed as not subject to the Act which included a power assisted pedal cycle. Bellew J found at [67] that s 18(2) was a separate provision which did not form part of the general rule in s 18(1). Section 18(2) took a defendant outside the operation of the general rule in s 18(1) concerning the unlawfulness of using a registrable vehicle on a road. The subsection set up a new and different matter, separate and distinct in form from the subject of the general rules expressed in s 18(1). The circumstances attracting the exception were matters a defendant would have particular knowledge about.
Grafil's submissions identified two different approaches to construction possible for the offence under s 144(1). Firstly where a defendant is charged under s 144 the prosecutor need only prove that the accused committed an act which is not per se unlawful being the use of a place for a waste facility. The onus of proof then shifts to a defendant to prove that he or she was acting within the law by reason of having lawful authority. As Grafil submitted this effectively means the defendant must prove he or she acted within the law rather than the prosecutor proving he or she acted outside the law.
The second construction is in keeping with the principles identified by Grafil of the presumption of innocence as a fundamental principle of criminal law summarised above in [324]. Properly construed, the effect of s 144(2) is that once the EPA proves that a particular lawful authority it alleges is required is in fact required (such as that the requirement for an EPL and/or a development consent, as alleged in this case), it falls upon the defendant to prove on the balance of probabilities that there was such an authority (an environment protection authority or development consent as the case may be) in existence and in force. I agree with Grafil that the onus of proof in relation to the application of the resource recovery exemptions must follow the onus of proof in relation to lawful authority. The offence under s 144(1) requires the EPA to prove that a defendant lacks lawful authority to operate a waste facility so that absence of lawful authority is not a proviso or exception but an element of the offence under s 144(1). Sections 144(1) and (2) must be considered together.
The onus of proof in relation to a similar provision in s 143(1) was considered in Environment Protection Authority v Terrace Earthmoving Pty Ltd & Page [2012] NSWLEC 216 at [232]-[242]. Section 143(1) specifies the offence of transportation of waste to a place that cannot be used lawfully as a waste facility. Subsection (2) states that a defendant bears the onus of proving that the place to which the waste was transported can lawfully be used as a waste facility for that waste. The question arose of whether subs (2) reversed the onus of proof in respect of the negative element of the offence created by subs (1). Craig J held at [232] that an essential element of the offence under s 143 is that a place cannot lawfully be used as a waste facility. A prosecutor bears the onus of proof to the criminal standard that lawful authority is required for use of a place as a waste facility at [233] and [240]. Chugg and Dowling v Bowie cited by the EPA were concerned with statutory provisions that identified exceptions or provisos rather than elements of an offence expressed in the negative. Craig J stated: 236 Both parties recognise that the "golden thread" of the criminal law is that it is for the prosecution to prove the defendant's guilt, recognising that the obligation is subject to any statutory exception (Woolmington v DPP [1935] UKHL 1; [1935] AC 462 at 481). Applying this principle and cognisant of the need to interpret legislation consistently with it, the question to be determined is whether subsection (2) reverses the burden of proof in respect of the negative element of the offence created by subsection (1). 237 In undertaking the task of interpreting the provisions of subsections (1) and (2), the "golden thread" should be kept firmly in mind. This can be done without doing any injustice to the language of the subsections if the onus is divided into parts. Implicit in subsection (1) is that some lawful authority is required in order to use the place to which waste is transported as a waste facility for that waste. No injustice is done to the language or purpose if the onus is cast upon the prosecutor to establish that lawful authority is required to use the place in that manner. Once that onus has been discharged, effect is given to subsection (2) by shifting the onus to the defendant to establish that any or all requisite authorities were operative at the time at which waste was transported to that place
Craig J identified at [238] that his approach was supported by observations in Environment Protection Authority v Hardt (2006) 148 LGERA 61; [2006] NSWLEC 438 (EPA v Hardt) at [77] concerning an offence under s 144(1) that the prosecutor had to establish beyond reasonable doubt that the defendant's use of land was a scheduled activity which required a licence at [92]-[93]. The Court of Criminal Appeal (CCA) in Terrace Earthmoving (2013) chose not to address the matter of onus at [48]-[56]. Craig J's approach supports Grafil's submissions.
I agree with Grafil that s 144(1) and subs (2) are unlike s 47A(3) of the Motor Dealers Act in issue in El Homsi and s 18(2) of the Road Transport (Vehicle Registration) Act 1997 in DPP v Sadler which were found to be exceptions. Subsection (2) is not a separate qualification or exception to the matter of absence of lawful authority in subs (1). It is not distinct in form from subs (1). The onus of proof shifts to a defendant under s 144(2) only if the EPA establishes that lawful authority was required and was absent. Such an approach is consistent with the presumption of innocence as articulated by Grafil, set out in [323] above.
Consequently as Grafil submitted the EPA bears the onus of proof of establishing that either or both cll 39 and 42 of Sch 1 require Grafil to hold an EPL to use the land for disposal of waste or storage by virtue of s 48 of the POEO Act (the licensing requirement for scheduled activities). Secondly the EPA must establish that the application of the CPRF exemption and/or the ENM exemption do not eliminate the need for Grafil to hold an EPL. As no EPL is required, if the exemption(s) apply proving they did not is a necessary precondition to the EPA demonstrating that an EPL is required. That is an element of the offence in s 144(1).
In accepting that submission of Grafil I am not following Foxman at [106]-[107]. Sheahan J did not have the benefit of legal representation for the defendant Mr Foxman in submissions concerning the CPRF, ENM and Recovered Aggregate exemptions. It appears that no reference was made to Terrace Earthmoving (2013) which I have referred to above and applied.
The EPA has the onus of negativing beyond reasonable doubt the application of the relevant resource recovery exemptions. Grafil has an evidentiary onus to raise the application of a particular exemption which is easily done given the evidence of the transporters and processors relied on in the EPA's case concerning the transport of material certified as compliant with the ENM and CPRF exemptions from the four processors to Lot 8.

[91]

Identification of issues concerning resource recovery exemptions

Because of their different views of who bears the onus of proof in relation to the resource recovery exemptions the parties' cases diverge substantially in the identification of issues. I have found that Grafil is correct in relation to the onus of proof lying with the EPA to negative the application of the exemptions.
Grafil submitted that the EPA has failed to discharge its onus of proof in relation to the application of the CPRF exemption by demonstrating beyond reasonable doubt: 1. that there was any of the absolute maximum concentrations or other values listed in Condition 10 Table 2 Column 4 were exceeded (as required by Condition 7.1.1); 2. that the maximum average concentration or other value exceeded those listed in Condition 10 Table 2 Column 2 in any characterisation test (as required by Condition 7.1.2); 3. that the maximum average concentration or other value exceeded those in Condition 10 Table 2 Column 3 in any routine test (as required by Condition 7.1.3); 4. that the recovered fines were not applied to land only for the purposes of construction or landscaping (as required by Condition 7.2); 5. that, if applied for the purpose of the construction of roads on private land, that the relevant waste had been applied to an extent greater than the minimum amount necessary for the construction of a road or that there was no development consent for the construction of a road (as required by Condition 7.2.7); 6. that records of the quantity of the recovered fines received by Grafil were not kept for a minimum period of three years (as required by Condition 9.1); 7. that the recovered fines were not applied within a reasonable period of time (as required by Condition 9.3); or 8. that the recovered fines were not sampled in accordance with Condition 11 Table 3.
I note that there is no reference to asbestos being in Stockpiles 1 and 2 in the issues identified, a major plank of the EPA's case.
Issues identified by the EPA included that Grafil was not a consumer for the purposes of the CPRF and ENM exemptions and could not therefore rely on it. The presence of asbestos meant that the CPRF exemption could not apply to the material in Stockpiles 1 and 2 as the stockpiles were asbestos waste. Further the consumer's responsibilities conditions in Conditions 7.2.7 and 9.3 concerning road building, Condition 9.1 concerning record-keeping and Condition 9.2 prohibiting deposition on water had not been complied with, with the consequence that the CPRF exemption did not apply at all in the charge period.
I have held the EPA bears the onus of proving the CPRF and ENM exemptions did not apply in the charge period. I will consider the issues as presented by the EPA in the course of which Grafil's issues will also be addressed.

[95]

Clause 42 of Waste Regulation not relevant to construction of CPRF exemption

It is necessary to construe the Waste Regulation in accordance with the usual principles of statutory construction which requires the plain and ordinary meaning of the provisions in their overall context and mindful of their purpose be applied. I have outlined in [314] above the background and appropriate approach to the resource recovery exemptions which require a non-technical and practical construction.
I adopt Grafil's submissions in their entirety as follows. Clause 42 operates entirely separately from the resource recovery exemption provisions in cll 51 and 51A of the Waste Regulation. There is no hierarchy of effectiveness of clauses within the Waste Regulation to support the submission of the EPA that cl 42 "trumps" the exemptions made under cll 51 and 51A which in turn are expressly provided for in s 286 of the POEO Act.
If breached, cl 42(2) provides for criminal liability with a maximum penalty of 400 penalty units (presently $44,000), a separate offence unrelated to the operation of the exemptions.
"Processor", "consumer" and "continuous process" recovered fines inter alia are defined under the CPRF exemption. It is highly relevant to identify that the CPRF exemption makes no reference to asbestos in any of its operative provisions. Processors are not required to test for it under the detailed sampling and testing regime specified in Conditions 11 and 12. There is no mention of asbestos in Condition 10 which defines numerous chemical and physical attributes which must be met.
The only reference to asbestos and cl 42 is in the notes section extracted in full above at [17] at the end of the CPRF exemption which states: The use of exempted material remains subject to other relevant environmental regulations within the Act and Regulations. For example, a person who pollutes land (s142a) or water (s120), or does not meet the special requirements for asbestos waste (clause 42), regardless of having an exemption, is guilty of an offence and subject to prosecution.
I have already found that the notes have no legal effect in [319]-[320] above. The CPRF exemption should not be construed as if it contains a condition about asbestos, the effect of the EPA's submission. The notes provide no basis for inferring any condition in relation to asbestos in stating that cl 42 exists. The notes are not conditions, are not intended to be and should not be construed as if they are as Grafil submitted. It follows that the presence of asbestos is irrelevant to whether the CPRF exemption applies and consequently to the charge if the exemption otherwise applies.

[96]

Do processor and/or consumer responsibilities under the CPRF exemption include exclusion of asbestos?

As a result of my finding that cl 42 is not relevant to the construction of the CPRF exemption it must follow that a processor or consumer has no responsibilities in relation to the exclusion of asbestos under the CPRF exemption. As the EPA made extensive submissions and adduced much evidence on this issue I will consider the issue of whether there can be any such responsibility on a processor or consumer.
Asbestos is ubiquitous in Sydney building waste. All of the processors have EPL conditions which prohibit them receiving asbestos and require them to implement an asbestos management plan to prevent it being accepted into the waste processing stream. Its removal from the waste stream is the responsibility of the processors under their licence requirements.
The ENM exemption imposes generator responsibilities to exclude asbestos as excavated natural material is defined as not including asbestos in the definition. As no issue is raised about the ENM supplied by Bingo I do not need to consider evidence concerning Bingo's practices.
Building and demolition waste was reclaimed by three processors in accordance with the CPRF exemption according to their undisputed evidence. Processor responsibilities arise under Condition 7 (general condition relating to chemical composition), Condition 8 (processor responsibilities including certification), Condition 10 (chemical and other material property requirements), Condition 11 (sampling and testing requirements) and Condition 12 (test methods). All of the processors gave evidence regarding their sorting, sampling and testing regimes and certification processes set out at some length above at [138]-[139], [153] and [158]-[159]. After sorting material from skip bins all of the processors sampled and tested as required by Conditions 10, 11 and 12 and certified that the loads being transported from their premises complied with the CPRF exemption as required by Condition 8. The processors certified that material was compliant, some for every truckload, some less frequently. There was no direct challenge by the EPA of the adequacy of the certification provided by the processors to consumers including Grafil in the charge period. Two of the processors (Mr Foxman of BBR and Mr Scarlis of KLF) gave evidence of their asbestos management plans.
In his ROI dated 17 June 2014 (summarised above commencing at [152]), Mr Foxman said (at Q 54) that BBR: …operated under a site management plan which would effectively check every load that came into the place and asbestos was public enemy number one and we did our best to minimise it. We had a rejected load register and we rejected loads on a daily basis. We had a procedure where every load was inspected before it came on the weighbridge, on the weighbridge, and when it hit the ground. So, you would minimise anything that was visible. If we would find one piece, we would reject the load or - we had a procedure where if we found a contaminated load, where we'd give it back…
Mr Foxman also said in his ROI that in processing construction and demolition waste to meet the CPRF exemption, it was crushed down to 9.5 millimetres. When crushed to this specification, the asbestos could not be seen (at Q 264). Mr Foxman also noted that there was no requirement to test for asbestos in the CPRF exemption. He said it was rare for BBR to test for asbestos as it was not required by the resource recovery exemptions. If BBR did test for asbestos, it was in recovered aggregate rather than recovered fines.
In cross-examination by the EPA enabled by an order under s 38(1) of the Evidence Act Mr Foxman was shown Dr Prifti's report dated 2 August 2016. It was put to Mr Foxman that the report showed BBR had not complied with the testing regime under the CPRF exemption. Mr Foxman disagreed stating that he thought BBR had complied. In further questioning Mr Foxman agreed that he had been charged with offences concerning material comprising construction and demolition waste and asbestos. Mr Foxman agreed that his reliance on the CPRF exemption and Recovered Aggregate exemption in response to those charges was rejected.
In cross-examination by Grafil's counsel Mr Foxman agreed that prior to being shown Dr Prifti's report dated 2 August 2016 during his oral evidence it had not been put to him before the hearing that the material exported from BBR did not comply with the CPRF exemption. Mr Foxman was shown an aerial photograph of the BBR property at Banksmeadow and asked about various features of the property. Mr Foxman said that BBR would separate recovered fines and recovered aggregate in concrete bays from unscreened material. In response to questions in cross-examination about the s 191 notice issued by the EPA to the liquidators of BBR, Mr Foxman stated that during the charge period, BBR had retained Resource Laboratories to conduct testing for the purpose of complying with the exemptions. Mr Greely, of Resource Laboratories, had provided a number of documents on behalf of BBR to the EPA showing that BBR had complied with the exemptions. In cross-examination and in his ROI, Mr Foxman stated that material which did not comply did not leave the BBR facility. Material would be stockpiled while waiting for initial test results. If the test results showed non-compliance, the material was reprocessed and retested. It would not leave the BBR site until new test results were issued which showed that the material was compliant. BBR would provide a weighbridge docket with a compliance certificate attached to all transporters taking loads from the BBR premises.
The process employed by Aussie Skips to test incoming material was described in Mr Ulizzi's affidavit sworn 13 September 2016, summarised at [137]-[138] above. Mr Ulizzi also detailed the process for certifying the material as compliant in his affidavit above at [142] (confirmed in cross-examination by Grafil's counsel). Aussie Skips would provide a letter to consumers and transporters of recovered fines covering a particular period stating the material was compliant, as opposed to sending certificates of compliance with every load. In cross-examination by the EPA pursuant to an order under s 38(1) of the Evidence Act Mr Ulizzi was shown Dr Prifti's report dated 2 August 2016. He was taken to her analysis which stated that Aussie Skips had failed to comply with the requirements for lead and pH under the CPRF exemption at various times during the charge period. Mr Ulizzi agreed that there were test results showing the maximum concentrations for lead and pH had been exceeded for recovered fines from Aussie Skips during the charge period. In response to questioning about what Aussie Skips did in situations where test results did not meet the requirements of the CPRF exemption Mr Ulizzi said that he would have the material retested and if it was still not compliant it would be re-blended with other material.
In cross-examination by Grafil's counsel Mr Ulizzi confirmed what he had said in his ROI dated 17 June 2014 (Exhibit Q), that non-compliant material at Aussie Skips would be sorted by labourers to remove large items such as bricks, rocks, blue board and plastic. If the material was still not compliant it would be sent to Veolia landfill. Non-compliant material would not be sent out. Mr Ulizzi agreed that he had never been shown material by the EPA suggesting that there had been non-compliances with the CPRF exemption.
In his ROI dated 19 June 2014 Mr Scarlis explained KLF's process for sorting material (summarised above at [158]-[159]) and said KLF had "…people checking the loads as they're tipped to make sure there's no asbestos or any type of thing, we have all our asbestos procedures in place…" In cross-examination by the EPA pursuant to an order under s 38(1) of the Evidence Act Mr Scarlis was shown Dr Prifti's report dated 2 August 2016. It was put to Mr Scarlis that Dr Prifti had found the KLF testing regime did not comply with the CPRF exemption. Mr Scarlis said that if any testing failed the material in question did not leave the KLF premises. KLF supplied a compliance certificate with every load sent out. In cross-examination by Grafil's counsel Mr Scarlis agreed that it had not been put to him before the hearing that the material being sent from the KLF premises did not comply with the CPRF exemption.
The evidence of the processors concerning on-site management of asbestos was part of the EPA's evidence in this case. The EPA submitted that because asbestos was present in Stockpiles 1 and 2 Grafil the consumer did not have the benefit of the CPRF exemption because the material was not exempt.
Grafil submitted that gave rise to an absurd outcome whereby a consumer is potentially criminally liable for events over which he or she has no control, namely the discovery of asbestos in material certified as compliant within the CPRF exemption.

[97]

No processor and/or consumer responsibility for exclusion of asbestos under CPRF exemption

I have identified elsewhere the appropriate approach to statutory construction of the CPRF exemption requiring a practical outcome at [314] above. It is probably not necessary to invoke this approach because apart from the notes, which refer to cl 42, the CPRF exemption is silent on asbestos. I have held above in [319]-[320] the notes cannot give rise to additional legal obligations on processors, generators and consumers under the CPRF or ENM exemptions. Sampling and testing for asbestos by processors or consumers is not required by Conditions 8, 10, 11 and 12 of the CPRF exemption. Processor and consumer responsibilities under the CPRF exemption do not expressly include asbestos. Nor should such responsibility be inferred given the nature of the exemptions as I have found above in [314]. Accordingly the presence of asbestos is irrelevant to the operation of the CPRF exemption.
I find below at [471]-[472] that consumers are not liable for processor sampling and testing responsibilities under the CPRF exemption but in any event processor responsibilities do not include testing for asbestos under that exemption. I consider Grafil's construction of the CPRF exemption is correct as it gives the exemption practical effect. The EPA's construction if correct would have major impractical ramifications for consumers, and indeed processors.
The evidence of two processors' systems for removal of asbestos is summarised above for KLF at [159] (briefly summarised at [362]) and BBR at [356]-[357]. As already identified in [337] I do not understand it is disputed that all had systems in place to sort and manually remove asbestos as required by their EPLs. That evidence was not disputed by the EPA.
The source of the asbestos in Stockpiles 1 and 2 is not identified. There are at least three possibilities if the asbestos identified in the AECOM report prepared in 2015 was present during the charge period of October 2012 to May 2013. The EPA accepted that the ENM from Bingo did not contain asbestos. Whether all processors can remove all traces of asbestos is unknown on the evidence. The EPA submitted all had to use their best endeavours under the respective management plans. Total elimination of asbestos may not be achievable so that some asbestos may have been delivered from processors. Small amounts of material also came from six other sites and perhaps that contained asbestos. Or the asbestos was on Lot 8 already where Stockpiles 1 and 2 were placed. A fourth possibility is that the asbestos was introduced after 15 May 2013 as Lot 8 was unsecured as Grafil submitted and as was obvious on the view.
According to Mr Foxman's undisputed evidence asbestos is not visible after processing in accordance with the size requirements of the CPRF exemption. Once any waste which is otherwise certified as complying with the sampling and testing regime under the CPRF exemption which happens to contain asbestos is deposited, on the EPA's construction, a consumer has a major and immediate problem as the exemption cannot apply.
A further major concern for an unwitting consumer is the potential imposition of a requirement to remove any material containing asbestos if delivered. The EPA has indicated that if Grafil is found guilty it will be seeking orders under Pt 8.3 of the POEO Act that the asbestos waste meaning on its construction the entirety of Stockpiles 1 and 2 be removed to an appropriate facility. This is likely to be a very substantial cost of many millions of dollars. In closing submissions, Grafil referred to Ms Moore's evidence that the tipping fee for general solid waste was $275-$295 per tonne. This includes the waste levy which at 13 February 2018 was set by the EPA at about $138 per tonne. If Grafil were to have the material in Stockpiles 1 and 2 removed to a waste facility it could cost for the disposal fee alone (not including transport costs) between $5,500,000 (assuming 20,000 tonnes of material at $275 per tonne) and $12,100,000 (assuming approximately 44,000 tonnes of material at $275 per tonne) applying these figures. The precise cost of removing asbestos waste to landfill was not in evidence.
Clause 42 of the Waste Regulation applies to asbestos disposal, re-use or recycling and transportation. If breached by any processor, transporter or consumer he or she can be criminally liable under that clause. That is not the nature of the charges before me however.
My finding on construction of the Waste Regulation means that Dr Prifti's opinion also expressed in cross-examination set out above at [220] and [229] of how she considered the Waste Regulation and the exemptions work is incorrect. The EPA's reliance on her evidence in this regard is misplaced.

[98]

Consequence of breach of resource recovery exemption condition

I now turn to the application of the CPRF exemption and the alleged failures to comply with certain conditions according to the EPA. The EPA submitted by inference that any failure to comply with the conditions of an exemption by a consumer and/or a processor or generator has the consequence that the exemption does not apply prospectively and retrospectively (in this case) for the benefit of Grafil the consumer.
As Grafil submitted, that is an unusual approach to the construction of such an instrument particularly in light of cl 51(10) of the Waste Regulation which specifies the offence of a breach of a resource recovery exemption condition. Such an offence has a maximum penalty of 400 penalty units for a corporation. By analogy with a development consent, a legal instrument which travels with the land it relates to, a breach of a condition does not usually nullify the consent but may give rise to other remedies or criminal action. Grafil submitted that this approach was also analogous to a breach of a condition in an EPL. It would not ordinarily be a consequence of a breach that an EPL would no longer apply or be taken to have never applied merely because of a breach of a condition.
Subject to the usual issues of fact and degree and applying the usual principles of construction, Grafil submitted that a resource recovery exemption may have no application, or may cease to apply: (a) if the material does not comply in some significant way with the chemical and physical parameters which are to be met when the materials are tested in accordance with the sampling and testing requirements (Condition 7.1, amplified by Condition 10); or (b) if it is not applied for one of the classes of activities identified in Condition 7.2. It would not necessarily be the case that a contravention of one of these requirements would disentitle a processor or consumer from reliance on the exemption, but it might be possible.
I agree with Grafil for the reasons set out immediately above that the failure to comply with a condition in the CPRF exemption does not as a matter of construction result in the exemption not applying at all. Only if more fundamental breaches are established such as those identified by Grafil set out in the immediate paragraph above would such a result potentially arise. As will become clear below no breaches of conditions are in fact established by the EPA except in one case (concerning record-keeping) which I find does not justify that the CPRF exemption not applying at all in the charge period.

[101]

Evidence of Bruce Mackenzie

Mr Bruce Mackenzie also made reference to using the material for a road in his interview on 30 June 2014: 1. At Q 98 "…I believe it was similar stuff to what's all over Port Stephens with houses built on it, cattle mounds built of it, roads built out of it." 2. At Q 142-143 "…[T]hey build the pad up, they put a house on it or they build it up and - so cows don't drown in a flood and they build a road to it…"
Macka's Sand had consent to build a haul road to Lot 218 including along Lavis Lane during the charge period under its Pt 3A approval. The Pt 3A approval was amended on 30 September 2013 and again on 15 March 2016 to provide for an alternate access road across Lots 4, 1, 810, 58, 133 and Lots 1-3 DP 118072 which has now been built. In keeping with a practical construction of the CPRF exemption, the Pt 3A approval held by Macka's Sand satisfies the requirement in Condition 7.2.7(b).
Evidence of Mr Mackenzie's expressed intention to build a road was also provided in other evidence: 1. in his affidavit sworn 13 September 2016 Mr Ulizzi deposed that he understood the purpose of the recovered fines going to Salt Ash to be for road construction. He had visited Macka's Sand and Soil with Mr Mulligan on 3 December 2009 where the recovered fines were used to construct roads in between one area and the next; 2. in his affidavit affirmed 5 October 2016 Mr Mulligan deposed that for the two to three years prior to mid-2013 Mullown also transported fill and other products to Lot 8. He understood that Macka's Sand and Soil wanted to build roads with this material; 3. in his affidavit affirmed 5 October 2016 Mr Sneddon deposed that he understood Macka's Sand and Soil was collecting the material [recovered fines] to build haul roads and to blend with soils to on-sell; and 4. in cross-examination, Mr Maddox said that similar material had gone to other properties in the area for the purpose of building roads.
The EPA and Grafil tendered expert evidence concerning suitability of the material and volume required for a road.

[102]

Evidence of Dr Martens

Dr Martens' report exhibited to his affidavit sworn 20 September 2016 addressed suitability of the material in Stockpiles 1 and 2 for a road. Dr Martens based his assessment of the suitability of the material for road building on the assumption that road construction required placement of sub-base and base materials.
In respect of whether the material was fit for purpose Dr Martens found the material in Stockpiles 1 and 2 to exceed the particle size suitable for base and sub-base material according to the Port Stephens Council Infrastructure Specification 242 Flexible Pavements (November 2016) Policy (the Council Pavement Policy) which required material be less than 26.5 millimetres. Accordingly the material would have to be screened before it could be used in the road. Dr Martens found that the material would also not have the required plasticity index for road construction. Based on the findings of the AECOM Report Dr Martens concluded that the material would also be unsuitable due to the presence of asbestos. He found that the road construction process would increase the risk of airborne asbestos and therefore increase human contact with asbestos.
In respect of whether the quantity of the material was proportionate to the amount needed to build the proposed road, Dr Martens assumed the length and width of the proposed road to be 2 kilometres and 7 metres respectively. He assumed a pavement thickness of 0.5 metres as he was not aware of the precise location of the proposed road. He also assumed there to be a material density of 1.7 tonnes per cubic metre in accordance with the conversion rate used in the AECOM Report. Where ground levels had to be adjusted to construct the road, "cut and fill" operations could be undertaken rather than importing bulk fill resulting in less fill being required. He calculated the amount of material needed for the road to be 11,900 tonnes. Dr Martens concluded that 44,000 tonnes in Stockpiles 1 and 2 was therefore in excess of what was needed for the road.
In cross-examination Dr Martens confirmed that he had not visited Lot 8 or the site of the road. He was also not provided with any indication of the proposed route of the road. It was put to Dr Martens in cross-examination that owing to the low-lying topography of the area, "cut and fill" operations would not be necessary to construct the road. Dr Martens disagreed saying that "cut and fill" was often needed to construct roads even on floodplains. He stated that floodplains could not be assumed to be flat.

[103]

Evidence of Mr Walker

The Geotechnical Report authored by Mr Walker contained geotechnical laboratory testing results of bulk samples taken from the two stockpiles on Lot 8 (commencing at [199] above) for compliance in relation to the RMS specification to determine whether it was fit for use in a road. The material in Stockpiles 1 and 2 consisted of a mixture of clay, silt, sand and gravel. In addition, fragments of glass, brick, concrete, plastic, rags, tiles and timber were also present. Where the proportion of these "waste" materials was small (less than five percent), the material in Stockpiles 1 and 2 may have been suitable to be compacted and therefore used for a road. The material in Stockpiles 1 and 2 would also need to be screened for grain size, with any rocks with a diameter greater than 100 millimetres needing to be removed. The material in Stockpile 1 was highly variable and therefore would possibly not be suitable for use even after winning the material. Stockpile 2 was less variable and would more likely be suitable for use in a road.
In cross-examination Mr Walker agreed that he did not specialise in road engineering or waste characterisation. He also agreed that a majority of results in the Geotechnical Report showed the material in Stockpiles 1 and 2 to contain less than five percent of unsuitable material for road building purposes. The material which contained a percentage greater than five percent could be screened so that it would be suitable. It was put to Mr Walker that material such as glass and brick were commonly sold for use as road base. Mr Walker said that he had not purchased road base materials. Mr Walker confirmed that he did not use the terms "waste" or "waste materials" in any technical sense. Rather, he was using those terms as synonyms for unsuitable material.
Mr Walker agreed that because of the highly variable nature of Stockpiles 1 and 2 he had not expressed an opinion about what percentage of both stockpiles would be suitable to build a road. He agreed that discrete tests would need to be taken of particular portions of material which were to be used. If the material was particularly heterogeneous it may be difficult, but would not be impossible, to process it to a suitable standard.
In cross-examination Mr Walker was asked about his use of the RMS specification in assessing the suitability of the material in Stockpiles 1 and 2 for use in a road. He agreed that the RMS specification was often incorporated into RMS contracts relating to State roads. Mr Walker also agreed that the RMS specification stated that identifying material as unsuitable for use in a road was difficult. Mr Walker agreed that the identification of suitable material was a matter on which qualified expert minds may reasonably differ. He agreed that the RMS specification stated that material such as "peat, muck and some silts" would be inherently unsuitable for use in a road and that Stockpiles 1 and 2 did not include such material.

[104]

Report of Mr Mostyn

Grafil tendered an expert report dated 27 February 2018 prepared by Mr Mostyn principal of Pells Sullivan Meynik Engineering Consultants which became Exhibit 1. Mr Mostyn has worked as an engineer for 42 years and specialised in areas of foundation engineering, earthworks and embankments, slope engineering, rock mechanics and pavement engineering. He had completed or supervised several hundred projects involving geotechnical investigations. Mr Mostyn considered whether the material in Stockpiles 1 and 2 was fit for the purpose of building a road and whether the volume of material was proportionate to that needed to build the road. In the course of preparing his report Mr Mostyn visited the site of the actual road on 8 February 2018.
In respect of whether the material was fit for purpose, Mr Mostyn said that private roads such as the one Grafil had built did not need to be constructed to the same standards as main roads. If the material underwent a process of winning before it was compacted, it would sufficiently homogenise the materials so that they could be used for a road. The material was similar to that used as a sub-base layer for highways and could provide "satisfactory long term performance in many situations." It was ultimately suitable for use as a sub-base in the access road Grafil sought to build.
With respect to the desirable volume of material, Mr Mostyn took into account the length and width of the road as built being two kilometres and eight metres (at its crest) respectively, the height of the final road surface over the existing surface, the size of the embankments for the road and the removal of topsoil. He calculated that approximately 34,000 tonnes would be a reasonable volume of material. Although the volume of Stockpiles 1 and 2 was 45,560 tonnes (according to the BMA 2015 survey), Mr Mostyn said that the two stockpiles were probably at a lower density than would be used in a road and would be compacted. Approximately 90 percent of the materials in the stockpiles would be used in building the road.
Mr Mostyn disagreed with Dr Martens' conclusion that the material was in excess of that reasonably needed for the road, nor did he agree with Dr Martens' conclusion that the material was not fit for purpose.
Mr Mostyn was asked in cross-examination whether he had any regard to the POEO Act in preparing his report. Mr Mostyn said that when he has been asked to provide an opinion on whether material can be used on a particular site he would phrase his advice as representing an engineering/technical point of view and was not to be read as any form of approval from a contamination or environmental perspective under the POEO Act. He adopted this approach in drafting his expert report dated 27 February 2018.
Mr Mostyn had not heard of the expression "special waste" as defined in the POEO Act and was not aware that "asbestos waste" was defined in the POEO Act. In preparing his report, Mr Mostyn had taken into account the AECOM and Geotechnical Reports which had acknowledged the presence of asbestos in Stockpiles 1 and 2. In cross-examination he said that he had not acknowledged the asbestos as his report dealt with technical matters. Mr Mostyn had taken the presence of asbestos into account from an engineering perspective but not from an environmental perspective in concluding that the material was fit for use.
In cross-examination Mr Mostyn was asked whether in concluding that the material in Stockpiles 1 and 2 was suitable for use in a road he had assumed that the material would be reprocessed. He said that the material would not need to be reprocessed. It could be spread out and the larger items removed. This was usually easy to do as the large items were small in volume. It was then put to Mr Mostyn that such a process could not be undertaken for Stockpiles 1 and 2 as it was not possible to tell what volume of the overall material the large fragments would constitute. Mr Mostyn disagreed stating that because of the sampling methods of AECOM what was recorded was primarily on the exterior of the stockpiles. Larger material tended to stay on the exterior surface.
Mr Mostyn was asked what the term "winning" meant as used in his report in relation to the material in Stockpiles 1 and 2. He said that it was a civil engineering term meaning to pick material up from something, for example, to pick up material from an excavator and place it in the tray of a truck.
In re-examination, Mr Mostyn was asked to explain why larger material tended to remain on the exterior of stockpiles. He said that larger material was more likely to be embedded in the stockpile itself and therefore the material around it would erode over time leaving the large material exposed.

[106]

Grafil submissions

Grafil submitted that whether the material in Stockpiles 1 and 2 was suitable or of proportionate volume according to Dr Martens or Mr Walker was irrelevant. Mr Mackenzie's evidence of his subjective intention confirmed by his father and several transporters is sufficient to satisfy Condition 7.2.7. Neither the 1977 development consent nor the Pt 3A approval precluded material that needed further screening. Mr Mostyn was cross-examined on this point and disagreed that the material required further screening. The expert evidence did not suggest that Mr Mackenzie's purpose was unreasonable or not bona fide. There could be no reasonable conclusion that Condition 7.2.7 was breached.
The assumptions in Dr Martens' report were based on speculation, as he had not visited the site. This is in contrast to Mr Mostyn, who had been to the site and had had regard to the Pt 3A approval in assessing suitability for purpose. Mr Mostyn's evidence should be preferred to that of Dr Martens. Dr Martens made critical assumptions about the site which were not made out on the evidence. Dr Martens assumed the size of the road, having not visited the site. He also assumed that 1.7 tonnes per cubic metre remained the density factor when material is compacted for a road, this assumption being contradicted by Mr Mostyn. Mr Mostyn's report was served on the EPA before Dr Martens' evidence so it was possible for the EPA to lead evidence in reply to Mr Mostyn's conclusion on density. Dr Martens' finding that there would be a surplus of material of 32,100 tonnes is undermined due to the assumptions he made about the size and dimension of the road in addition to the level of compaction in the completed road.
Further, Dr Martens' findings as to a risk to human health and the environment due to the presence of asbestos are not relevant to Grafil's liability. The EPA has not established that any of the material in which asbestos was found came from any particular source brought onto Lot 8 in purported compliance with the ENM exemption. Mr Walker, by contrast, raised no issue with the asbestos and did not list asbestos as an element making the material unsuitable. Condition 7.2.7 does not raise the issue of human health or environmental harm, unlike the ENM exemption. The Pt 3A approval also did not preclude the use of material containing minor amounts of asbestos.
The Court could not assume that cl 42 of the Waste Regulation would have been breached by placing the material in the road. As the note to the ENM exemption states, cl 42 must be complied with, but this is separate from compliance with Condition 7.2.7 which is the issue in question.
Having regard to Mr Mostyn's opinion, Mr Mackenzie's intention to use the material for a haul road was not only his subjective purpose but was also objectively reasonable. In any event, the question is not whether the Court would approve the use of the material in a road, but whether the subjective purpose was held and would result in a breach of Condition 7.2.7.
Condition 9.3 does not require that a DA be in place at the time of delivery, it not so stating. In any event a DA was in place, the Pt 3A approval granted on 20 September 2009 related to Lot 8 inter alia and provided for an access road along Lavis Lane from the outset. It was modified after the charge period to allow another access road as an alternative which was the road ultimately built. Further the use of material for a road on Lot 8 was ancillary to the 1977 sand extraction consent. The material in the stockpiles was prevented from being used by the EPA's actions on and following 15 May 2013.

[107]

Condition 7.2.7(a) minimum extent

The EPA has the onus of proof beyond reasonable doubt of establishing that Condition 7.2.7(a) and (b) were not satisfied in the charge period. It relied on expert evidence of Dr Martens and Mr Walker to submit that the amount of material in Stockpiles 1 and 2 was excessive so that Condition 7.2.7(a) was not met. The EPA also submitted the material in Stockpiles 1 and 2 was not fit for the purpose of road base because of particle size and the presence of asbestos. No weight was placed by the EPA on Mr Mackenzie's evidence of his intention to use the material for a road, his informed belief of the amount required and his informed belief about the suitability of the material.
Given the need to apply a practical construction to the CPRF exemption, the consumer's intention to use material for a road on private land is highly relevant. Mr Mackenzie's intention to use the material based on his experience of road building on Lot 8, the nature of the material and the amount needed for the proposed road was expressed to EPA officers during his first ROI on 15 May 2013 on the first occasion he was asked about Stockpiles 1 and 2 (summarised at [380] above), and again in his second ROI on 11 June 2014 (summarised at [381] above) (see advice at beginning of this subsection entitled "Evidence of Mr Robert Mackenzie"). That intention was confirmed by his father and two transporters Mr Mulligan and Mr Sneddon and Mr Ulizzi of Aussie Skips. As Grafil submitted Mr Ulizzi's evidence was highly probative of Mr Mackenzie's genuine intention to build a road in 2012/2013 given that he had supplied the same type of material previously to Mr Mackenzie to construct an access road on Lot 8 in 2009. The evidence establishes the road project was not a sham as for example occurred in EPA v Hardt.
As to volume, in his second ROI on 11 June 2014 Mr Mackenzie stated that he thought he would need around 30,000 tonnes of material to build the road (at [381(c)] above).
I agree with Grafil that Mr Mackenzie having the reasonable belief based on his experience that the material satisfies Condition 7.2.7(a) in terms of volume is sufficient in this case to discharge his obligations as a consumer. Expert evidence is not automatically required to discharge the obligation of a consumer to calculate the amount of material required for a road.
That the s 143 notice referred to 15,000 tonnes, an over-representation of what was required on the EPA's case, can be noted. I do not consider that information undermines the extensive evidence of intention to build the road in determining if the exemption was complied with.
Arguably that is sufficient to discharge any obligation on Grafil as a consumer under Condition 7.2.7(a) of intention to apply the material to land to the minimum extent necessary or rather the EPA has not established beyond reasonable doubt that Condition 7.2.7(a) did not apply in the charge period.
If expert evidence is relevant on the question of the minimum amount necessary, Mr Mostyn has extensive experience over a long career in earthworks, foundation management and pavement engineering. He considered the requirements of the actual road informed by a site inspection. I accept Mr Mostyn's evidence that about 34,000 tonnes was required for the actual road built. I prefer his evidence that given the amount of material in the stockpiles on his assumption of 45,560 tonnes based on the BMA 2015 survey (the upper end of the possible range of volume) approximately 90 percent would be required for the road that was built. Mr Mostyn considered the material would be compacted when used in road building whereas Dr Martens assumed the same density of 1.7 cubic metres per tonne at all times. Mr Mostyn was not cross-examined on his technical evidence other than in relation to whether screening of the material would be required and whether he had considered asbestos as an environmental consideration. His evidence was that the material was suitable for use as road base with minimal sorting of larger items achievable if necessary.
Dr Martens did not attend the site of the actual road and essentially undertook a desktop survey to determine the volume of material he considered was required of about 11,900 tonnes. Dr Martens' assumption of cut and fill operations requiring less fill was hypothetical as he was not aware of the topography where the road was to be built. Dr Martens' opinion is a substantial underestimation given Mr Mostyn's calculations based on actual observation of the road built. Nor do I accept that Grafil was required by the rule in Brown v Dunne to put Mr Mostyn's opinions about volume to Dr Martens in these criminal proceedings. Grafil was not required to cross-examine Dr Martens' wrong assumption of applying the Council Pavement Policy not shown to be relevant to the road to be built per James Hardie Industries NV v Australian Securities and Investments Commission [2009] NSWCA 18 at [21]-[27]. The rule does not require a defendant in criminal proceedings to clear up or resolve inconsistencies in a prosecutor's case per MWJ v The Queen (2005) 80 ALJR 329; [2005] HCA 74 at [38]. The Mostyn report was served on the EPA before Dr Martens gave evidence and leave could have been sought by the EPA to put matters to Dr Martens.
Further, as Grafil submitted, the existence of competing expert opinions does not undermine the evidence of Mr Mackenzie's intention to use the material for an access road. Mr Mackenzie's view as to suitability and quantity of material is in any event confirmed by Mr Mostyn's expert evidence.

[108]

Suitability of material for a road

There is no mention in Condition 7.2.7 of the consumer needing to form an opinion about the suitability of material for road base. This makes practical sense given that the whole scheme of cll 51 and 51A of the Waste Regulation and the CPRF exemption is directed to the production of recovered fines. If sampled and tested appropriately by the processors under the relevant conditions and so certified by the processors, recovered fines are fit for the purposes in Condition 7.2 of construction and landscaping and construction of roads on private land if certain conditions are met by a consumer. I have held above in [365] that the presence of asbestos has no effect on whether the CPRF exemption applies to material supplied by a processor. As identified above in [237] the processors have certified compliance with the chemical and particle size requirements of Condition 10. A consumer should be able to rely on that certification. That someone else including an expert forms the view over two years later that particle size requirements have not been met is irrelevant to the application of the exemption to material in the hands of a consumer.
As discussed elsewhere given that compliance with the chemical and particle size criteria in Condition 10 is entirely the processors' responsibility, the CPRF exemption does not require the consumer to separately determine the chemical and particle size characteristics of the exempt material. The EPA's case is that the notes to the CPRF exemption create an obligation on consumers to "…assess whether or not the exempted material is fit for the purpose the material is proposed to be used and whether this material will cause harm." The notes also state that "[t]he consumer may need to seek expert engineering or technical advice." I have held above in [319]-[320] that the notes do not place additional legal obligations on a consumer. On one view therefore the expert evidence of Dr Martens and Mr Walker that the material was not fit for the purpose of private road construction if the material otherwise complied with Condition 10 at the time of processing is irrelevant.
If that evidence was to become relevant, Mr Walker considered the RMS specification which has not been proven to have any application to the type of road in question. He agreed it was a document referred to in the building of State roads, which has not been proven to have any application to the private haul road to be built under the Pt 3A approval. Mr Walker has no relevant experience in road design or building. Undertaking a sophisticated laboratory analysis as Mr Walker undertook to determine if material is suitable for road building simply cannot be relevant to the practical application of the exemption.
I further observe that the Council Pavement Policy to which Dr Martens referred has not been proven to be a relevant assessment criteria by the EPA. The EPA had no evidence suggesting that policy would be applied under Condition 31 of the Pt 3A approval set out below at [554].
As Grafil submitted there were inconsistencies in the EPA's evidence regarding the acceptable particle size for material to be used in the road. Mr Walker said that material less than 100 millimetres would be acceptable, while Dr Martens said that material less than 26.5 millimetres would be acceptable.
There was no basis for Mr Mackenzie concluding that the use of the stockpiled materials were proscribed for the purposes of the Pt 3A approval. The temporary stockpiling of materials was implicitly authorised by the major project approval and its modifications as I find below commencing at [565]. The approval and its modifications expressly applied to Lot 8.
Consistent with my earlier finding, whether the material requires further screening to meet geotechnical standards for the road is irrelevant to the application of the CPRF exemption. In any event, such screening has not been proven to be required by the EPA. The extensive screening proposed by Dr Martens and Mr Walker addresses a higher standard of road base than is necessary. Mr Mostyn's evidence that the material was suitable after winning, with the removal if necessary of larger pieces is accepted given his extensive and relevant professional experience.

[109]

Presence of asbestos irrelevant to s 144(1) charge

Dr Martens commented on the presence of asbestos in his expert report exhibited to his affidavit sworn 20 September 2016. He found that the presence of bonded asbestos presented an ongoing risk to human health without adequate management. He also concluded that the ongoing use of machinery in and around the material would lead to further desiccation and release of asbestos fibres into the environment. Dr Martens expressed an opinion that the material is not suitable for road base because it contains asbestos and that the risk to human health from the presence of asbestos was likely and therefore more than minimal.
I have concluded above in [365] that the presence of asbestos is not legally relevant to the application of the CPRF exemption. As Grafil submitted Condition 7.2.7 in the CPRF exemption does not refer to any human health or environmental issue. The EPA accepted that the ENM delivered by Bingo did not include asbestos so that could not be the source of the asbestos and no failure of Grafil to comply with Condition 9.1 of the ENM exemption can arise. The presence of asbestos has no legal consequence in the context of this offence.
In so concluding I am not seeking to downplay the significance of asbestos and attendant health risks. Consistent with my finding concerning the separate operation of cl 42 of the Waste Regulation, this charge does not engage with the presence of asbestos in Stockpiles 1 and 2. As Grafil submitted, the EPA has not established that the Pt 3A approval would preclude the use of materials such as that in Stockpiles 1 and 2 containing minor amounts of asbestos. I address below the evidence concerning the amount of asbestos detected in the stockpiles commencing at [509] and conclude it is minor. The risk to human health is reduced if the material is not screened as Mr Mostyn suggested was not required. Mr Mostyn, aware of the presence of asbestos, considered the material to be suitable for use in a road. Mr Walker did not raise any difficulty with use of the material on the basis that it contained some asbestos. I can make no finding in these proceedings that cl 42 of the Waste Regulation would be infringed if the material was used for a road base.
The EPA has not established beyond reasonable doubt that Condition 7.2.7 has not been complied with in the charge period.

[112]

No compliance with condition of CPRF and ENM exemptions by consumer - record-keeping

Condition 9.1 of the CPRF exemption and Condition 9.2 of the ENM exemption require records of the quality of recovered fines received by a consumer to be kept including the suppliers' name and address for three years. Mr Mackenzie stated in his second ROI on 11 June 2014 that he had not kept records of what the transporters delivered. Mr Mackenzie did not deny that he had not kept any records of what was delivered to Lot 8, a consumer responsibility under Condition 9.1 of the CPRF exemption and Condition 9.2 of the ENM exemption.
The EPA submitted that as these conditions had not been complied with Grafil could not rely on the exemptions.
I have found above in [376] that the breach of a condition of the CPRF or ENM exemptions does not have the legal result that the exemption cannot apply at all. I agree with Grafil that the contravention of the record-keeping requirement in the conditions does not automatically disentitle a consumer from relying on an exemption. Such an approach is unworkable as Grafil submitted at [375] above. To give it retrospective effect is not logical or practical. Grafil provided the example of where a processor over a period of time supplied recovered fines to a consumer which complied with the physical and chemical requirements when tested in accordance with the testing requirements. In this example it is assumed that the consumer used the material to construct a road in accordance with Condition 7.27. It is also assumed that the consumer kept records in accordance with the conditions for two years and then prematurely destroyed them. Such a breach cannot affect the nature of the exempt material delivered by the processor. As identified at [374] above the EPA's approach gives cl 51(10) no work to do.
As the EPA submitted the purpose of having the consumer keep records of what has been delivered is to enable ready identification of the source of material. The consumer's responsibility in the CPRF exemption to keep the records specified is separate to the processor's responsibility to keep records in Condition 8.6. The same observation applies to the separate responsibility of generators under Condition 8.5.1 of the ENM exemption. I observe that the conditions require a consumer to keep the supplier's name and address and the quantity of recovered fines supplied. Certificates of compliance are not referred to although part of the EPA's case was that some certificates supplied by one of the transporters were thrown out by Mr Mackenzie (see [124] above) (see Mr Gilder's ROI).
Alternatively Grafil submitted that a consumer could meet the condition by relying on the processors' or generators' records given their record-keeping responsibilities. The conditions are in the passive voice. As the EPA did not obtain all such records from the processors it cannot be assumed that they did not have the records.
Grafil's alternative argument in the paragraph immediately above gives the conditions no work to do. Given Mr Mackenzie's admission in his second ROI the EPA has established beyond reasonable doubt that the conditions have not been complied with by Grafil in the charge period. That as a practical matter many of the records, but not all, which would satisfy the conditions were obtained from the processors by the EPA and could have been available in that way does not overcome Mr Mackenzie's failure in this regard. There is no legal consequence in this case resulting from that failure. The CPRF exemption continues to apply to the material in Stockpiles 1 and 2.

[113]

Compliance with condition of CPRF exemption by consumer - no deposition on water Condition 9.2

Condition 9.2 is identified as a consumer responsibility that waste not be applied in or beneath water including groundwater.
Dr Martens stated in his report exhibited to his affidavit sworn 20 September 2016 that the material in Stockpile 1 had been placed along a linear pond, which would likely contain a combination of surface water and groundwater. Consequently the material in Stockpile 1 would be in direct contact with surface and groundwater. The drainage from the pond was towards the north of Lot 8 which ultimately discharged into estuarine waters at Pelican Point forming part of the Port Stephens embayment. Dr Martens concluded that without a leachate containment and treatment system the potential for ongoing harm to the local environment would be more than minimal.
Dr Martens found that Stockpiles 1 and 2 had altered the topography of Lot 8 and had therefore also altered the surface and groundwater hydrology. Stockpiles 1 and 2 would have altered the direction of surface water on Lot 8. Groundwater hydrology would also have been altered by modifying the level of rainfall infiltration on Lot 8. The increased soil depth caused by the presence of Stockpiles 1 and 2 would result in less recharge in groundwater due to a higher percentage of rainfall being stored and evaporated from the surface of the stockpiles. Dr Martens also stated that leachate, possibly derived from Stockpiles 1 and 2 may have contaminated groundwater on Lot 8.
In cross-examination Dr Martens agreed he had not been asked to undertake a surface water analysis of Lot 8 and had not been provided with the results for surface water quality testing. Nor had he conducted groundwater testing on Lot 8. It was put to Dr Martens that material placed in Stockpiles 1 and 2 may have been placed in full compliance with the CPRF exemption but still had levels of analytes such as cadmium, lead and nickel in it. Therefore even where material complied with the CPRF exemption, leachate may arise with such analytes present due to their presence in the existing soil. Dr Martens said that if material complied with the CPRF exemption it would still generate leachate of a different character to that generated by non-compliant material. If analyte levels were higher than permitted in the CPRF exemption there would likely be a higher concentration of such analytes in the leachate.

[117]

Compliance with condition of CPRF exemption concerning chemical and physical attribute requirements, sampling and testing - Conditions 7, 8, 10, 11, 12

The EPA also identified as an issue that the chemical and physical (particle size) attribute requirements in Condition 10 Table 2 of the CPRF exemption were not met by the material in Stockpiles 1 and 2. It endeavoured to prove that the sampling and testing requirements of Conditions 8, 10, 11 and 12 were not complied with by the processors of the recovered fines (KLF, Aussie Skips and BBR). The evidence on this topic was voluminous and complicated. In closing submissions the EPA stated that this issue was not an important part of its case, it relying on failure to meet geotechnical requirements for a road use, failure in record-keeping and prohibited deposition in water on Grafil's part. Given that statement I will not consider every aspect of the chemical and physical attribute evidence as for two overarching reasons I give below, a failure (if there was any) can have no role to play in determining whether the exemptions have been breached by Grafil as a consumer. The detailed cross-examination about the AECOM report prepared in 2015 and the adequacy of sampling and testing methods will not be fully explored in relation to the evidence of Ms Blefari, Mr Dean and Mr Fifield.
The CPRF exemption (Condition 10 Table 2 Items 1-20) specifies average maximum concentrations for characterisation of numerous chemicals, maximum average concentrations for routine testing, absolute maximum concentrations for numerous chemicals and testing methods for each of these. The CPRF exemption (Condition 10 Table 2 Column 1 Item 22) includes a requirement that 95 percent of recovered fines must be smaller than 9.5 millimetres. I note that the ENM exemption has no particle size limit.
Concerning particle size, all of the processors gave evidence as to how their material was screened which has been largely set out above in relation to screening for asbestos removal. As summarised at [137]-[138] and [361] above Aussie Skips undertook a process of manually removing larger items and then sending material along a conveyor belt to remove smaller items which could not be excluded by hand. If after material was tested it came back as non-compliant it would be re-screened.
In his ROI dated 17 June 2014 Mr Foxman described the process for screening material coming to the BBR site at [153] and [356]-[357] above. Materials such as bricks, concrete, sand and soil would first be segregated into different piles. To minimise the amount of material going to landfill BBR would crush, screen, process and manufacture material into products such as recovered aggregates, recovered fines and road base (ROI Q80). In cross-examination by the EPA pursuant to an order under s 38(1) of the Evidence Act Mr Foxman stated that incoming material from excavation sites would be put "to one side" and then screened to a maximum size of 9.5 millimetres.
Mr Scarlis in his ROI dated 19 June 2014 stated that KLF would receive waste from skip bin companies, separate and sort the material and then send any waste to landfill (ROI p 3). The process used by KLF is set out above in [158] and [362]. In cross-examination by the EPA pursuant to an order pursuant to s 38(1) of the Evidence Act Mr Scarlis said that material sent out by KLF looked like topsoil because it was screened and was therefore generally "8 mil minus".
In cross-examination by the EPA's counsel pursuant to an order under s 38(1) of the Evidence Act Mr Foxman, Mr Ulizzi and Mr Scarlis all stated upon being shown an image of material on Lot 8 taken on 15 May 2013 that it did not resemble the material they had sent to Lot 8 (see [155], [143] and [161] respectively above).
During the search and seizure operation on Lot 8 on 15 May 2013 various EPA officers commented on the size and content of the materials in Stockpiles 1 and 2. Mr Bourne in his affidavit affirmed 28 April 2016 described the content of Stockpiles 1 and 2 as containing "…dark brown soil mixed with bricks, concrete, glass, plastic, synthetic mineral fibres, concrete with reinforcing bar, timber and tiles…" as summarised at [65] above. Ms Withnall in her affidavit affirmed 28 July 2016 described the material in Stockpiles 1 and 2 as "…a mix of bricks, concrete, glass, plastic, pottery, concrete with reinforcing bar, wood, and other materials" at [76] above. Ms Moore in her affidavit sworn 27 April 2016 made a number of comments about the appearance of Stockpiles 1 and 2 summarised above at [81]. In cross-examination Ms Moore agreed that most of the material in Stockpiles 1 and 2 resembled dark soil matter.
Concerning chemical attributes the three processors all gave evidence as to their testing and sampling regimes as already set out in their evidence above at [138]-[139], [153] and [158]-[159]. Summaries of the evidence given by Mr Foxman, Mr Ulizzi and Mr Scarlis are set out above at [359], [360]-[361] and [362] respectively. These three processors gave evidence to the effect that incoming material would be screened by hand and/or machine. Samples would then be taken at the intervals required by the CPRF exemption and provided to their respective environmental consultants who would test the material for compliance with the chemical composition requirements in the resource recovery exemptions. If material did not meet the chemical or physical requirements it would be reprocessed or sent to landfill. No processors had been told by the EPA that there were any problems with what they sent out as recovered fines until these proceedings.
The EPA also relied on the findings of the AECOM Report summarised above in [185]-[189] that both Stockpiles 1 and 2 exceeded the maximum concentrations and maximum average concentrations for certain analytes in Condition 10 Table 2 of the CPRF and ENM exemptions. Dr Prifti compared the analytical testing performed on behalf of the four processors in her expert reports dated 2 August 2016 and 23 November 2016 as summarised above at [224]-[227]. Dr Prifti concluded that Aussie Skips caused 6,125 tonnes of recovered fines to be sent to Lot 8 which exceeded lead and pH limits. In relation to KLF some 24,155 tonnes of recovered fines were transported which did not comply with the sampling requirements and did not therefore comply with the CPRF exemption. In relation to Bingo 9,937 tonnes of ENM were transported which complied with the ENM exemption. In relation to BBR due to inconsistent sampling and non-compliance with the pH requirement of the CPRF exemption 23,165 tonnes of material did not comply with the fines exemption. The EPA accepted that all these figures were wrong because Dr Prifti relied on Ms Moore's calculation of volumes which were shown to be flawed (see [174]-[182] above).
In his report exhibited to his affidavit sworn 20 September 2016 Dr Martens considered both the chemical and particle size requirements in the resource recovery exemptions. Dr Martens concluded that the entirety of the material in Stockpiles 1 and 2 did not meet the CPRF exemption for two reasons. Firstly based on the findings of the AECOM Report the material exceeded the maximum average criteria for various analytes. Stockpile 1 exceeded the maximum averages permitted for cadmium, lead, nickel and mercury and Stockpile 2 exceeded the maximum averages for electrical conductivity, arsenic and benzo(a)pyrene. Secondly based on the findings of the Geotechnical Report the average proportion of material in Stockpiles 1 and 2 greater than 9.5 millimetres was 14 percent and therefore exceeded the five percent allowance for material of that size. Further, 93 percent of samples had particle distributions which contained more than five percent of material which was greater than 9.5 millimetres also suggesting non-compliance with the CPRF requirements.
Dr Martens also concluded that the entirety of the material in Stockpiles 1 and 2 did not meet the ENM exemption based on the findings of the AECOM Report. Stockpiles 1 and 2 exceeded the maximum average concentrations for electrical conductivity, cadmium, arsenic, copper, lead, nickel, zinc, mercury, benzo(a)pyrene and total petroleum hydrocarbons. Stockpile 1 also exceeded the absolute maximum concentrations for cadmium, lead, nickel, zinc, mercury, benzo(a)pyrene and total petroleum hydrocarbons. Stockpile 2 exceeded the absolute maximum concentrations for electrical conductivity, arsenic, lead, zinc, benzo(a)pyrene and total petroleum hydrocarbons.
In cross-examination Dr Martens was asked about his conclusions that the entirety of the materials in Stockpiles 1 and 2 did not comply with the CPRF exemption size requirement. It was put to Dr Martens that upon a visual inspection of the material in Stockpiles 1 and 2 he would be unable to tell which material was placed in compliance with the ENM exemption (which did not have a particle size requirement) as opposed to the CPRF exemption which had a requirement as to particle size. Dr Martens said he would only be able to make a conclusion about the origins of the material if he made a further assumption that the material had not been redistributed within Stockpiles 1 and 2 after it was deposited. That the material in Stockpiles 1 and 2 had been "end-dumped" from trucks meant there was a likelihood of material being redistributed after deposition. Dr Martens further agreed that upon a more invasive inspection which involved digging into Stockpiles 1 and 2 he still would be unable to determine which facility the material had come from.

[118]

Consumer not responsible for processor sampling and testing

Putting to one side that the EPA bears the onus of proof beyond reasonable doubt of proving that Conditions 7, 8, 10, 11 and 12 in the CPRF exemption have not been complied with, the threshold issue arises of whether the exemption should be construed as the EPA submits so that a consumer is criminally liable for a processor's failure to sample or test as required for chemical and physical characteristics. A large part of the EPA's evidence was directed to establishing that the material in Stockpiles 1 and 2 did not meet the chemical concentrations in Condition 10 Table 2 of the CPRF exemption (see the AECOM Report and Dr Prifti's conclusions based on that summarised above at [218], [220]-[221]). The EPA also submitted that the particle size of the CPRF exemption was not met by the material in Stockpiles 1 and 2 based on the Geotechnical Report and Dr Martens' evidence which was based on the AECOM Report.
The EPA essentially relied on Dr Prifti's approach to the application of the CPRF exemption as identified in cross-examination summarised above at [230]. Dr Prifti's opinion that the chemical limits are minimum standards that must be adhered to by both processors and consumers at all times is not legally correct. Nor does each party have an overriding obligation to ensure that materials are fit for the purpose for which the materials are proposed to be used and assess whether this will cause harm. Firstly the CPRF exemption does not state that. There is no basis for implying such an obligation on a consumer. Secondly Dr Prifti relies on the notes in her conclusions about consumer responsibilities. I have found that the notes have no legal effect in [319]-[320] above.
Dr Prifti and consequently the EPA's reliance on notes to the CPRF exemption which state that the consumer should assess whether nor not the exempted material is fit for a purpose as somehow imposing an obligation on a consumer to ensure that the chemical composition of the waste is in accordance with Condition 10 Table 2 lacks any contextual support. The responsibility for compliance with the chemical composition and particle size requirements lies with a processor under Conditions 7, 8, 10, 11 and 12.
Dr Prifti's opinion (at [230] above) that the limits in Condition 10 Table 2 of the resource recovery exemptions were minimum standards that must be adhered to by both processors and consumers and that there is an overriding obligation on each party to ensure the materials are fit for the purpose for which the materials are proposed to be used is not legally correct. Her baked beans analogy focussed on the responsibility of a processor in any event, see [230] last line above.
The different responsibilities of processors and consumers under the CPRF exemption is highlighted in Grafil's submissions. I agree with its submission that to give the CPRF exemption a practical construction a consumer should not be held criminally liable for any failures in sampling and testing of a processor for chemical concentrations and particle size including where such material is certified as compliant. A consumer has no control over such processes. The EPA's approach does not adopt a purposive construction and undermines the operation of the CPRF exemption.
The general conditions in Condition 7.1 concerning the chemical concentration of the recovered fines and particle size requirements can only be relevant to processors given their obligation to sample and test in accordance with Conditions 10, 11 and 12 as required by Condition 8.

[119]

Testing of CPRF material after charge period not legally relevant

A further threshold issue requiring determination is when compliance with the sampling and testing in the CPRF exemption is required. Compliance with the CPRF exemption requirements for chemical and physical composition of recovered fines rests with processors in relation to testing and sampling during production of recovered fines. Grafil also made reference to the BPRF exemption set out above in [18] to highlight the difference between the "batch process" testing regime (which none of the processors adopted) and the "continuous process" testing regime (which all of the processors adopted).
The principal difference between the BPRF exemption and the CPRF exemption is the sampling and testing regime. As specified in Condition 11 Table 3 of the BPRF exemption the "batched process" regime required testing of a batch (400 tonnes) of material. Such a regime may have enabled an argument by the EPA that all the material in a batch had to be compliant with the chemical characteristics required in Condition 10 Table 2 (as stated by Dr Prifti in cross-examination summarised above at [230]), although a high level of homogeneity of waste may still be necessary to support such an argument. Whether such testing two and a half years after deposition is relevant to compliance with the BPRF exemption is unclear but that is not an issue I need to resolve. I note that Dr Prifti made no mention in her report of the BPRF exemption and did not list it in the "Relevant literature and documents" section of the report where she referred to the other two exemptions.
The testing regime under the CPRF exemption is different and allows continual sampling and testing of variable building and demolition waste in accordance with the regime in Condition 10 Table 2 and frequency in Condition 11 at different stages of production of recovered fines. As Grafil submitted adopting the CPRF exemption testing regime means that it is futile to determine whether material is compliant with the exemption by testing at a later time (two and a half years in this case) at a stockpile where the material was placed. Both Dr Martens and Ms Blefari accepted that in their cross-examination. In cross-examination Dr Martens stated that it was difficult to use the resource recovery exemptions to characterise the material on Lot 8 as the exemptions were not constructed for that purpose. It was a fundamentally difficult if not flawed process to retrospectively apply the resource recovery exemptions to discrete sampling conducted on Stockpiles 1 and 2. Dr Martens said that the resource recovery exemptions were based on stringent sampling requirements. For processors this required ongoing sampling. He would need to distinguish between whether the entity in possession of the material was a consumer or a processor. Dr Martens had not been informed of whether he should assume the material in Stockpiles 1 and 2 was in the possession of a consumer or a processor.
Significantly, Ms Blefari agreed in cross-examination (summarised above at [192]) that in Table 1 of the AECOM report she had not included a consideration of whether the CPRF exemption had been met although she had considered the ENM exemption, BPRF exemption and Recovered Aggregate exemption amongst others. She agreed that the CPRF exemption had been omitted because it applied to a production process rather than the testing of an in situ stockpile deposited on land.
The results of the AECOM Report and any conclusions drawn by Dr Prifti and Dr Martens based on it are irrelevant to the application of the CPRF exemption concerning whether the chemical and physical requirements in Condition 10 were met during the charge period.
Further, as Grafil submitted, the EPA's construction is that a processor may sample and test recovered fines in accordance with the testing requirements specified in the CPRF exemption and receive results confirming that the material complies in all respects with the specified maximum concentrations of chemicals and particle size requirements in Condition 10 Table 2. According to the EPA the exemption will have no application, and be taken never to have had any application, if the analysis of a sample taken two and a half years later at the receival site shows that the maximum specified concentration for any of the parameters were exceeded.
Such an approach would deprive industry of any certainty in relation to what it can process under the resource recovery exemptions and would destroy the testing regime by effectively imposing the requirement that every particle of every recovered waste material be tested before being supplied.
Dr Prifti stated in cross-examination that testing two and a half years after the placement of material could be relevant to compliance, see [231]-[232]. My findings mean that I do not accept this view.
These two findings on threshold issues mean that the evidence adduced by the EPA concerning how Stockpiles 1 and 2 looked on 15 May 2013 according to Mr Bourne and Ms Moore, other so-called admissions by Mr Mackenzie in the course of the first ROI on 15 May 2013 and its submissions asking the Court to draw inferences from how Stockpiles 1 and 2 looked on the view are not relevant to the s 144(1) charge. Dr Martens agreed in cross-examination that he was unable to state which parts of the stockpiles complied or not with any part of the CPRF or ENM exemptions.
The content of the first ROI with Mr Mackenzie on 15 May 2013 when he walked around Lot 8 with Mr Bourne (at [248] above) to determine if statements attributed to him were made or what was their context given the manner they were relied on by the EPA need not be considered.
Consequently the EPA has not discharged its onus of proof in relation to Grafil's issues (a), (b), and (c) concerning chemical concentrations as required by Condition 7.1.1, 7.1.2 and 7.1.3 identified in [339] above. Further, as these concern processor responsibilities they have no relevance to Grafil.

[122]

Grafil submissions

Grafil submitted that the conclusions in Dr Prifti's reports could not be relied on because amongst other reasons, she did not have complete records from the processors. In relation to BBR Dr Prifti was told she had a complete set of records of testing results. Dr Prifti did not speak to Mr Greely of Resource Laboratories who conducted the testing for BBR to ensure she had complete results and therefore could not confirm that she had been given all results. In cross-examination Dr Prifti agreed that her conclusion that 11,090 tonnes of non-compliant material had been provided by BBR during the charge period was based on the records she was given by the EPA. As this material was missing several test results which were not sought out by the EPA (on Mr Foxman's evidence summarised at [156] above), Dr Prifti's conclusion about the amount of non-compliant material sent out therefore cannot be accepted.
Further Dr Prifti was not informed that Mr Foxman had told the EPA that material which did not meet the CPRF exemption criteria would have been reprocessed or sent to landfill. Dr Prifti did not have any sampling or test results for the period prior to 6 December 2012 and agreed she could not rule out that material had been tested correctly prior to the charge period and prior to the results provided by BBR to the EPA.
Grafil also submitted in relation to Dr Prifti's analysis of the BBR results that she interpreted Condition 11 Table 3 Column 2 of the CPRF exemption as requiring only the averaging of weekly test results for the calculation of the five week average. Grafil submitted that there was ambiguity in the CPRF exemption which would allow for a contrary interpretation of this requirement, namely that five results even if not taken each week could be the basis for the average calculation. The BBR test results provided more than five results for each of the sampling events between 6 December 2012 and 20 March 2013.
In relation to Aussie Skips' records Dr Prifti was provided with 30 laboratory reports. She agreed in cross-examination that the gap in testing she had identified likely coincided with the Christmas/New Year shut down. This was not a possibility she had mentioned in her reports. Dr Prifti had also taken into account a number of results showing the maximum concentration for lead had been exceeded which were specifically retested by Envirolab (who completed the testing for Aussie Skips) on the basis that she was not given a reason for the retesting. Dr Prifti agreed it was possible that Envirolab may have been able to explain why the triplicate result was taken and why the later result should be used rather than the initial higher result.
Dr Prifti stated in cross-examination that she took into account the lower triplicate results and still calculated averages which exceeded the maximum averages. Grafil submitted this was problematic as Dr Prifti "cherry-picked" the testing data so as to choose five consecutive results which exceeded the maximum average for lead. The periods she selected were not based on any periods identified by Aussie Skips. Dr Prifti agreed that the CPRF exemption did not require any particular start date for the five week averaging period. Dr Prifti's admissions remove the basis for the conclusion that Aussie Skips did not comply with the five week averaging requirement. In any event the non-complying five week average periods identified in Dr Prifti's report dated 2 August 2016 could not lead to the conclusion that non-complying material was sent to Grafil as material may already have been sampled, tested and validated.
In relation to KLF Dr Prifti agreed that the largest gap between sampling and testing events was 33 days. This gap coincided with the Christmas/New Year period. Dr Prifti agreed that she was not aware of how much material left KLF during the charge period. She further agreed that the five week averages for KLF could be calculated over a number of periods evident from a spread sheet of KLF's testing of recovered fines (Exhibit 32).

[123]

Failures in sampling and testing by processors not established by EPA

Dr Prifti has relied on a number of key assumptions in drawing her conclusion that non-compliant material was sent to Lot 8 by the processors. Firstly Dr Prifti assumed that she was provided with complete records for the processors. The EPA did not follow up with the processors where incomplete records were given as highlighted in Grafil's submissions in [488] above. Dr Prifti did not seek information from Mr Greely or Envirolab regarding missing records or anomalies in the BBR and Aussie Skips results respectively (see [488] and [491] above). I note that Dr Prifti stated in cross-examination that she did not do so because it was outside the instructions given to her by the EPA.
Secondly Dr Prifti assumed that all recovered fines for which she was given non-compliant testing results were distributed by the processors. The undisputed evidence of Mr Foxman (at [154] and [359] above), Mr Ulizzi ([137] and [361] above) and Mr Scarlis ([157] and [362] above) contradicts this assumption. These processors all stated that non-compliant material was either reprocessed or sent to landfill.
Thirdly Dr Prifti chose five week periods for determining compliance with the maximum average concentrations in Condition 10 Table 2 of the CPRF exemption which did not coincide with those selected by the processors. Dr Prifti was not provided with information from the processors as to when they had started or finished any particular five week period (see [492] above). She agreed it was up to the processors when the five week period would commence.
Fourthly Dr Prifti did not consider the reasons for gaps in testing by Aussie Skips or KLF. Dr Prifti agreed in cross-examination that these gaps coincided with the Christmas-New Year Period, a plausible explanation for the gaps in testing.
In closing submissions the EPA purported to rely on BBR dockets for the period 6 December 2012 to 20 March 2013 to establish its case that material not tested as complying with the CPRF exemption was sent out in that period. It should be noted that the BBR dockets for 102 of the 148 loads identify "Newcastle" as the destination. As identified above at [176] "Newcastle" cannot be assumed to mean "Salt Ash" for the purpose of determining where the material went. It follows that far less material from BBR was deposited at Lot 8 than the EPA contends for. As identified in the cross-examination of Mr Foxman by Grafil's counsel at [156] and [488] above not all tests results were obtained by the EPA. As identified by Grafil at [490] above, the sampling results for BBR arguably did comply with the sampling requirements of the exemption as the interpretation by Grafil is open on the wording of Condition 10.
The findings in Dr Prifti's reports regarding the sampling and testing regimes of the processors do not establish failures of three processors to sample and test in accordance with the CPRF exemption. I adopt Grafil's submissions in their entirety to this effect. That Dr Prifti's approach to sampling and testing varied from the three processors does not render their approach anomalous as the EPA submitted. The EPA has not established beyond reasonable doubt that the processors failed to sample and test material as required by the CPRF exemption in the charge period (Grafil's issue (h) in [339(h)] above).
For the reasons I have given the EPA has not proved beyond reasonable doubt that material that was non-compliant with the chemical concentration limits in the CPRF exemption was sent to Lot 8 by the processors in the charge period.

[124]

Is Grafil a consumer under the CPRF and ENM exemptions?

The last issue I will consider in relation to the application of the CPRF and ENM exemptions is the EPA's submission that Grafil was not a consumer because on the facts of this case the consumer which applied to land and/or stored the waste (Grafil) was not the same entity which was seeking to use the materials to construct the road to Lot 218. That entity was either Macka's Sand as the holder of the putative Pt 3A modification approval and/or B & R B Mackenzie FT Pty Ltd which was the registered proprietor of the relevant parcels of land over which the road was intended to traverse. As a consequence, Grafil's purpose for storing the materials, for the benefit of a separate entity which hoped to have the benefit of a development consent on parcels of land owned by a further separate registered proprietor, cannot be exempted from the licensing requirements under s 48 of the POEO Act. In contrast the Hufnagl property had the benefit of a development consent allowing for "Landfill for the Purposes of Stock Management" and the properties owned by Mr Sansom and Mr Mulligan had development consents for the purpose of building flood mounds (see [114] above).
The EPA further submitted that if both Grafil and Macka's Sand were consumers, a waste transfer station would be created where one company stored waste for the benefit of another company who would "land apply" the waste. The CPRF exemption does not allow for two consumers.
Grafil relied on the definition of "consumer" within the CPRF exemption and the close corporate relationship between Grafil and Macka's Sand. Firstly, Grafil was a "consumer" within the definition as it "cause[d], or permit[ed]" recovered fines to be applied to land. Grafil caused the material to be placed in Stockpile 1 and 2 on Lot 8 for future use for a road.
Secondly, the road was to be built (and has now been built) for the purpose of taking extracted sand from Lot 218 to the processing facility on Lot 8. Both Grafil and Macka's Sand are involved in the same sand producing and processing enterprise and have the same directors, being Mr Mackenzie and Mr Bruce Mackenzie. Lot 8 is owned by Mr Mackenzie and Mr Bruce Mackenzie as tenants in common.

[125]

Grafil is a consumer

"Consumer" is defined in the CPRF exemption as "…the person who applies, causes or permits the application to land of 'continuous process' recovered fines within the definition of 'application to land' in accordance with the Act." The definition of "consumer" in the ENM exemption is identical to that in the CPRF exemption save for the fact that ENM is being applied to land rather than recovered fines. "Application to land" is defined in cl 39 of Sch 1 (set out above at [10]) as depositing on land and/or filling and raising land inter alia. An identical definition of "application to land" appears in cl 3B of the Waste Regulation set out above at [13]. I have found above that Stockpiles 1 and 2 were being used for temporary stockpiling of recovered fines and ENM during the charge period and had not yet been applied to land. Mr Mackenzie's evidence (summarised above at [380]-[381]) is that the material was to be used for a road for which there was a Pt 3A approval in the charge period.
For the reasons provided by Grafil it is a consumer under the ENM and CPRF exemptions. The EPA's approach fails to recognise the interrelated activities and identical ownership of Grafil trading as Macka's Sand and Soil and Macka's Sand and fails to recognise that the Pt 3A approval pursuant to which the road was to be built applied to Lot 8 in the charge period.
Returning to the issues identified by Grafil set out in [339] above, issues (a), (b), (c) (chemical maximum concentration for characterisation, maximum average concentration for routine testing, absolute maximum concentration) and (h) (sampling in accordance with Condition 11) concern processor responsibilities in Conditions 7.1.1, 7.1.2, 7.1.3, 8, 10, 11 and 12 of the CPRF exemption. For the reasons articulated above the EPA has not discharged the onus of proof it bears in relation to these issues. More fundamentally these responsibilities cannot be imposed on consumers through criminal sanction. Consumer responsibilities arise in Conditions 7.2 and 9 hence issues (d) (not applied to land only for landscaping or construction), (e) (to be applied for road to greater extent than minimum necessary), (f) (records not kept), and (g) (not applied in a reasonable time). The only breach established is a failure to keep records. That does not prevent the CPRF or the ENM exemptions from applying.

[127]

Extent of asbestos in Stockpiles 1 and 2

My finding on the legal operation of the CPRF exemption and the Waste Regulation and the EPA's acceptance that a large quantity of approximately 10,000 tonnes (precise amount unknown) of ENM from Bingo complied with the ENM exemption (and did not therefore contain asbestos) has the consequence that the presence of asbestos is not relevant to the s 144(1) offence, as I held in [365] above. The submission of the EPA that Stockpiles 1 and 2 are asbestos waste cannot arise in these proceedings.
Disposal of asbestos with its potential impacts on human health remains a significant waste management problem in and around Sydney as the overall context of this prosecution highlights. The broader challenge of managing asbestos in Sydney building waste is not addressed by this particular offence. It is strictly unnecessary that I consider the presence of asbestos further.
The EPA's submission that the whole of Stockpiles 1 and 2 are asbestos waste has potentially major practical consequences for Grafil if it is ordered to remove the two stockpiles for that reason. As noted above in [370] such an order will have major financial implications. A finding on the extent of asbestos and the correct construction and application of the definition of asbestos waste has a clear practical benefit for Grafil in terms of its potential liability for removal.
"Asbestos" is defined in cl 50(1) of Sch 1 of the POEO Act. "Asbestos waste" is defined as any waste that contains asbestos in cl 50(1). The AECOM Report identified the presence of asbestos in Stockpiles 1 and 2. The sampling processes employed and the results are summarised above in [185]-[189]. The sampling involved excavating 42 test pits across Stockpiles 1 and 2 from which 137 samples were taken. Appendix D was a log of sampling results including a description of what was found. Appendix E of the AECOM Report which contained the laboratory certificates of analysis identified 220 samples as being tested for asbestos. Of these samples the majority were subsoil samples (weighing 300-500 grams each) and 23 were bulk samples (weighing 25 kilograms each). Appendix E showed four detections of asbestos in soil obtained in the subsoil samples. Appendix D identified that the four detections were of friable asbestos. Each subsoil sample of friable asbestos weighed on average 0.004 grams. Appendix E identified 22 detections of asbestos (consisting of 11 detections on the surface and 11 detections at depth) in the bulk samples. Appendix D identified that all of these were bonded asbestos and the combined weight of the asbestos detections in the bulk samples amounted to 634.64 grams out of 575 kilograms (23 samples of 25 kilograms). Accordingly, Appendices D and E identified that there were 26 detections of asbestos throughout Stockpiles 1 and 2.

[129]

Grafil submissions

The issue according to Grafil is at what point a stockpile can be said to "contain" asbestos. The issue is one of fact and degree for each particular case. The EPA's reliance on previously decided cases on findings of "special" or "asbestos waste" (as in Foxman and Pullen) was misconceived. The facts in Pullen are particularly distinguishable, given that it only dealt with 462 tonnes of material which were of uniform appearance, compared to up to approximately 44,000 tonnes of heterogeneous material in this case. The waste that is delivered or exists in a heterogeneous stockpile alongside asbestos cannot properly be considered to "contain" asbestos. The pieces of pipe or fibreboard that do contain the asbestos mineral, as well as other material, are the only items in the stockpile that are properly considered "asbestos waste", otherwise the definition is deprived of all meaning.
Grafil raised a number of criticisms as to the adequacy of the sampling regime for the AECOM and Geotechnical Reports as identified in cross-examination set out above in [192]-[194], [198] and [201]-[202]. In cross-examination Ms Blefari agreed that although Stockpiles 1 and 2 were heterogeneous in nature, sampling had been conducted at a rate of one sample per 425 tonnes which was the recommended frequency for homogenous material according to the Victorian EPA Soil sampling guidelines. She agreed that more than the 94 samples taken from Stockpile 1 may have been necessary. Ms Blefari agreed that overall 25 kilograms of subsoil samples weighing 300-500 grams each had been taken from Stockpiles 1 and 2 and that this represented a small proportion of the overall volume of the stockpiles. Grafil also submitted that there were inadequacies in the collection of the bulk samples weighing 25 kilograms each. In cross-examination Mr Walker stated that his decision to take 23 bulk samples was not based on any particular guideline or framework. He agreed that the 575 total kilograms taken in bulk samples was a small proportion of the overall volume of Stockpiles 1 and 2.
Grafil submitted that there were further concerns about AECOM's testing for asbestos. In cross-examination Mr Dean agreed that when conducting sampling of contaminated land he may have decided to alter the sampling location if he saw material which appeared to be contaminated which was outside the proposed sample area. Mr Dean disagreed with the suggestion that when sampling on Lot 8 he had asked the excavator driver to adjust the sampling location based on what had been unearthed or upon seeing features of the surrounding land.
As to the amount of asbestos, Grafil rejected the EPA's submission that the number of detections was more likely 33, stating that this conclusion was not supported on the evidence. Further, 26 detections out of 220 samples taken was a small number. This is particularly so given that the samples were targeted to areas which upon a visual inspection appeared to contain fibreboard (as stated during the cross-examination of Mr Dean summarised at [518] above). Grafil's counsel submitted that the increase in the number of samples tested to 220 (from 137 taken) may be explained by the mixing or splitting of the initial samples taken.
The three page extract of the URS Report (Exhibit 1A) should not be given any weight. Grafil submitted that a letter from the EPA to Grafil dated 17 February 2017 responding to Grafil's request for particulars (Exhibit 2), made no mention of asbestos in any other evidence apart from the AECOM Report. It was therefore not open to the EPA to rely on the URS detections. This is particularly so as the EPA sought to prevent disclosure of the URS detections and the entirety of the URS Report was not in evidence.
Grafil disputed that an inference that asbestos was distributed throughout the entirety of Stockpiles 1 and 2 could be drawn as this was not made out by the sampling evidence. Appendix E of the AECOM Report showed that only a very small portion of each sample contained asbestos. The total amount of asbestos in the bulk samples recorded in Table 3 of Appendix D of the AECOM Report amounted to only 634.64 grams, an incredibly minor amount in comparison to the approximate 44,000 maximum tonnage in Stockpiles 1 and 2. It is also a very small proportion of the bulk samples tested because it was thought they may contain asbestos. Only 26 detections out of 220 subsoil samples and bulk samples tested positive for asbestos. The subsoil samples being typically between 300-500 grams showed only 0.004 grams of friable asbestos per sample, less than 0.001 percent of the sample weight.

[130]

Asbestos in Stockpiles 1 and 2 not proven to be more than minor in volume

The definition of asbestos waste in cl 50(1) Sch 1 is any waste which contains asbestos. At issue in this case is how "contains" and "waste" should be construed. There is little guidance from the statutory context of the definition. The construction adopted by the EPA that one piece of asbestos of any type renders an entire stockpile regardless of its size to be "asbestos waste" gives rise to a potentially absurd and impractical outcome. It gives "contains" essentially no work to do. Grafil's submission that the pieces of pipe or fibreboard or other waste that contain the asbestos mineral are the items in a stockpile that are properly considered "asbestos waste" is arguably at the other extreme of a possible application of "contains". It is certainly a literal application. Grafil's submission that waste in a heterogeneous stockpile alongside asbestos does not "contain" asbestos does give the word "contains" more work to do. Ultimately I do not intend in this case to determine if Grafil's primary approach to construction is appropriate. Whether a stockpile of material can be considered "asbestos waste" is a matter of fact and degree as Grafil also submitted and must depend on the nature of the waste and the volume. The direct application of findings based on different facts in Pullen is not relevant, as Grafil submitted. While Foxman considered building and demolition waste the approach to statutory construction in relation to asbestos was quite different.
Turning to the evidence of the presence of asbestos, for the reasons given by Grafil thoroughly analysing the findings in the AECOM Report particularly appendices D and E, summarised above in [517]-[521] the evidence supports a finding that the amount of bonded asbestos in the stockpiles is minor and the amount of friable asbestos is very small. The five tonne limit in cl 42(3)(a) of Sch 1 for the storage of asbestos waste was not demonstrably triggered as there is no basis for concluding that there was more than five tonnes of material in Stockpiles 1 and 2 containing asbestos.
The EPA submitted that owing to the findings in the AECOM Report asbestos occurred throughout both Stockpiles 1 and 2 at various depths and distributions. This meant asbestos could be found consistently throughout the profile of Stockpiles 1 and 2. I accept Grafil's submissions that owing to the comparatively small volume of samples taken in comparison to the overall volume of the stockpiles and that samples were targeted at areas which appeared to have asbestos, an inference could not be made that asbestos was likely to be found throughout the entirety of the stockpiles. It was not clear from the evidence of Mr Walker that the sampling processes applied had any scientific basis behind the selection of 23 test pits.
No weight should be given to the URS Report extract (Exhibit 1A). The extracts lack context as there is no indication of where the extracted pages fall within the URS Report as a whole and how they relate to the purpose of the URS Report. The three page extract also provides no context about the asbestos detections purported to have been found in 2013. In particular no indication is given of the amount or depth of the detections or whether the asbestos was bonded or friable. As Grafil submitted the answers given by Ms Blefari in re-examination summarised above at [195] that the detections in the URS Report were additional to those in the AECOM Report lacked reasoning.
The EPA has not established beyond reasonable doubt that the entirety of Stockpiles 1 and 2 was asbestos waste as defined in cl 50(1) Sch 1 in the charge period.
Another matter of importance to note as already referred to above in [246], is that the evidence adduced by the EPA does not establish beyond reasonable doubt that the asbestos detected came from the three processors. The sources of asbestos in Stockpiles 1 and 2 are unknown on the evidence. Apart from receipt from the three processors, six other sources about which nothing is known appear in the table prepared by Ms Moore in Exhibit R. The asbestos could have been present on the land prior to the stockpiles existing or in the grass mound shown in Mr Bourne's photograph taken on 27 November 2012 (in Exhibit E). As the stockpiles have not been secured since 15 May 2013 asbestos could have been introduced onto them after the charge period and before October 2015.

[131]

Continuing offence proved?

The EPA alleged that the material on Lot 8 in Stockpiles 1 and 2 was waste disposal by application to land as defined by cl 39 and/or waste storage within cl 42 of Sch 1 of the POEO Act. The EPA stated that the offence charged was a continuing offence in relation to the storage and disposal of waste for the period of the charge from 29 October 2012 to 15 May 2013.
Grafil submits that no continuing offence has been proved. Grafil does not dispute that some material has been brought to Lot 8 during the charge period. Following the cross-examination of Ms Moore in relation to her original and revised evidence the amount of material brought to Lot 8, the content and timing of deposition is imprecisely known.
The evidence put before the Court is incapable of proving that on any particular occasion within the charge period any non-exempt waste was deposited. The EPA has no evidence that any particular load was non-exempt, or that the alleged waste deposited on any particular day was non-exempt. It follows that if as a matter of law the offence cannot be properly characterised as a continuing offence, the charges must be dismissed as the evidence cannot support any finding of separate or discrete offences committed at particular times.
For a course of conduct or single criminal transaction to be charged as a continuing offence, there must be continuing activity: CSR Ltd v Environment Protection Authority (2000) 110 LGERA 334; [2000] NSWCCA 373 at [45]-[49]. The close connection in time of the various acts said to constitute the continuing offence is critical: Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26 at 108 (Kirby J).
Grafil accepts that intermittently during the charge period, trucks delivered recovered fines and ENM variously sourced from the four Sydney recycling centres to Lot 8. However, even if the deliveries of loads were sufficiently frequent over the charge period to constitute a continuing course of conduct, the EPA must prove a continuing course of conduct over the charge period comprising the use of Lot 8 as a waste facility without lawful authority. If material delivered to the site fell within the resource recovery exemptions, then it was exempt from any licensing requirement. The EPA must establish that there were regular deliveries to Lot 8 of material that was not compliant with the resource recovery exemptions.

[133]

Was s 144(1) charge brought within the limitation period?

A three year limitation period from when an offence is alleged to have been committed applies to a s 144(1) offence pursuant to s 216(1)(a) of the POEO Act. The charge period ended on 15 May 2013. As the summons was filed on 11 May 2016, the relevant limitation period is, going back three years, 11 May 2013. If the offence charged did not continue until at least 11 May 2013, then the charge was not brought within the three year limitation period and must be dismissed.
In the BMA 2013 survey Mr McClenahan stated that there were approximately 42 stockpiles on top of Stockpile 1. In cross-examination Mr Bourne agreed that he had observed a number of what appeared to be freshly tipped loads on Stockpile 1 during the search and seizure operation at Lot 8 on 15 May 2013.
The EPA relied on the following truck dockets to demonstrate that waste materials were deposited on Lot 8, most probably to form one or more of the 42 "fresh" stockpiles on top of Stockpile 1 observed by Mr Bourne on 15 May 2013, in the period 13-14 May 2013 (Exhibit 1M): 1. 13 May 2013 - Mullown truck docket 12798 (for MUL310), Aussie Skips to Macka's Salt Ash for 20 tonnes of recovered fines; 2. 13 May 2013 - Mullown truck docket 13680 (for MUL510), Aussie Skips to Newcastle for one truck and trailer load of recovered fines to Macka's Sand and Soil Salt Ash; 3. 13 May 2013 - Mullown truck docket 13811 (for MUL253), Aussie Skips to Macka's Sand and Soil Salt Ash for one truck and dog load of recovered fines; 4. 13 May 2013 - Mullown truck docket 13953 (for MUL503 [captured entering Lot 8 at 07:55:44 on 13 May 2013]), Aussie Skips to Newcastle for 20 tonnes of recovered fines; 5. 14 May 2013 - Mullown truck docket 13685 (for MUL570 [appears to be captured entering Lot 8 at 09:01:55 on 14 May 2013]), Aussie Skips to Salt Ash Macka's Sand and Soil for one truck and trailer load of recovered fines; 6. 14 May 2013 - Mullown truck docket 13813 (for MUL253), Aussie Skips to Macka's Sand Salt Ash for one truck and dog load of recovered fines; 7. 14 May 2013 - Mullown truck docket 13815 (for MUL253), Aussie Skips to Macka's Sand Salt Ash for one truck and dog load of recovered fines; 8. 14 May 2013 - Mullown truck docket 13957 (for MUL503 [captured entering Lot 8 at 13:42:15 on 14 May 2013]), Aussie Skips to Newcastle for 20 tonnes of recovered fines.
The EPA also relied on the invoices and daily driver sheets for Papworth. By reference to Papworth truck docket numbers 7325 (for BQ46CJ) and 6981 (for BN31TI) demonstates that further deliveries of recovered fines from Aussie Skips to "Macka's" were made on, respectively, 13 and 14 May 2013. Similarly, the s 191 notice response from Sneddons included a subcontractor invoice dated 31 May 2013 to Mullown (no. 2157) includes a load from Aussie Skips to "Macka's Sand and Soil Supplies RMB 2846 Nelson Bay Road Salt Ash NSW 2318" on 13 May 201397. That this load went to Lot 8 is consistent with Mr Sneddon's unchallenged evidence that he "was not aware of material from Aussie Skips going anywhere but to Macka's" (Affidavit of Mr Sneddon affirmed 5 October 2016).
Invoices of Maddox addressed to Bulk Logistics show that 10 loads were transported from the recycling yards of the HBRC and BBR to "Newcastle" in the period from 13-14 May 2013. That at least some of these deliveries were made to Lot 8 is corroborated by the driver sheets which show multiple deliveries being made by various drivers to "Salt Ash" on these dates.
The EPA also submitted that the deposition of materials on Stockpile 1 on 13 and 14 May 2013 was shown in static camera images (Exhibit 1M). Specifically, the physical tipping of materials from trucks atop of Stockpile 1 can be seen occurring at the following times:

13 May 2013 at 13:47:26
14 May 2013 at 07:33:48
14 May 2013 at 09:07:03
14 May 2013 at 09:07:33
14 May 2013 at 09:08:03

The photographs taken from the static camera on 13 and 14 May 2013 prove that loads were delivered to Lot 8 on those dates.
Grafil submitted that it is not sufficient for the EPA to establish that one or more loads of material were tipped on Stockpile 1 or Stockpile 2 on a day or days on or after 11 May 2013. The EPA must establish that one or more loads of material that did not comply with the resource recovery exemptions were deposited on Lot 8 during those few days.
If there was no receipt and therefore no disposal of non-exempt material in the period 11 May 2013 to 15 May 2013 then the offence charged will be time barred, as no part of the alleged continuing offence of storage and/or disposal will have been proved to have taken place within the required three year period.
The affidavit of Ms Bell affirmed 2 August 2013 and accompanying exhibit (Exhibit H) does not document any delivery of material to Lot 8 during the EPA's inspection on 15 May 2013. There is no evidence of any delivery of material to Stockpiles 1 and 2 on that day (see above at [182]). Several EPA witnesses have confirmed that there was no delivery of material to Lot 8 on that day.
Accordingly, to avoid the time bar the EPA needs to show beyond a reasonable doubt that non-exempt material was received on either of 11, 12, 13 or 14 May 2015. The EPA cannot on the evidence before the Court demonstrate that particular loads of material delivered on particular days was non-exempt.
As this cannot be demonstrated, the EPA has not negatived the reasonable possibility that the charged offence was complete prior to 11 May 2013, with no deposition or disposal of non-exempt material occurring after that date. The continued presence of Stockpiles 1 and 2 on Lot 8 does not entail that the charged offence continues without end after it is completed by the last act of tipping or depositing non-exempt waste.
To reason, in effect, that the charged offence continues without end would be to commit the very error identified by the CCA in the EPA's submissions in relation to the water pollution offence in Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79 (EPA v Bathurst) at 86 (Hunt CJ at CL). Just as the offence of water pollution is completed when the water is polluted and does not continue ad infinitum while that polluted state persists, and just as the offence of murder is complete once the victim dies and does not continue forever because the deceased continued to be dead, this s 144 offence was complete (if committed at all) when the last act of tipping occurred. There is no basis for the Court concluding on the evidence that this was on or after 11 May 2013. As a result, the charged offence is time barred pursuant to s 216(1)(a) of the Act. As in EPA v Bathurst (see Hunt CJ at CL at 87), there is no evidence before the Court enabling a finding that the offence was completed within the limitation period.

[135]

Third element part 2 - lawful authority - development consent under EPA Act

Section 144(1) refers to the use of land as a waste facility "without lawful authority". In EPA v Hardt the Court had to determine if these words were restricted to lack of authority under the POEO Act or also referred to authority under any other Act, most relevantly the EPA Act. Preston CJ held at [95]-[98] that the words did apply to the POEO Act and beyond including the EPA Act. This conclusion was applied in Terrace Earthmoving (2016) at [148]. It is necessary to consider whether a development consent under the EPA Act was needed for temporary stockpiling of the material in Stockpiles 1 and 2 on Lot 8 during the charge period.
The development history of Grafil and Macka's Sand as relied on by the EPA is identified in [28]-[33] above based on the affidavit of Mr Jamieson EPA officer. During the charge period Grafil trading as Macka's Sand and Soil operated on Lot 8 under the 1977 consent for sand extraction with effectively no conditions. Following inspections in December 2009 and 2010 and on 9 May 2012 by Mr Jamieson where he identified material he considered to be waste on Lot 8 he wrote to the Council asking about the status of construction and demolition waste on Lot 8 under the 1977 consent. After an inspection on 10 July 2012 by the Council Mr Bruce Mackenzie was told that waste storage on Lot 8 in relation to building and demolition waste was not ancillary to the sand extraction activities and therefore the 1977 consent did not permit use of the land as a waste management facility. The Council saw a mound of concrete waste of approximately 30 tonnes which appeared to be historical as it was partially covered with sand and vegetation.
Mr Jamieson proposed a variation of EPL 12108 on 17 December 2012 to allow storage of small amounts of chicken manure and no use or storage of building and demolition waste (unprocessed or processed) inter alia. Mr Mackenzie's consultant Umwelt wrote to the EPA on 25 January 2013 proposing a 2,500 tonne cap on waste storage on Lot 8 as Grafil received and processed less than the legislated maximum volume in Sch 1 of the POEO Act, advising of discussions with the Council about the use of waste materials on Lot 8 and proposed that a variation of the EPL should await the outcome of these discussions. Mr Mackenzie in his letter of 2 April 2013 to the EPA stated that a development assessment in relation to the "use of materials designated as waste" which were integral to Grafil's operations was being undertaken and a DA would be made to the Council (the extract of the letter is at [45] above).
As identified in the affidavit of Mr Holm summarised above in [34]-[36], Macka's Sand was granted a Pt 3A approval for sand extraction on Lot 218 in 2009 which included access roads across various lots as identified in [34]. The Pt 3A approval applied to a number of lots including Lot 8. During the charge period Macka's Sand had consent to build a road to Lot 218 along Lavis Lane and other lots under the Pt 3A approval as identified above in [34]. The Pt 3A approval was modified after the charge period on 30 September 2013 to provide for an alternate access road across Lots 4, 1, 810, 58 and 122. The Pt 3A approval was further modified on 15 March 2016 to allow the alternate access road to cross Lots 1-3 DP 118072 as reflected in the consolidated approval in Exhibit 34 which identified the modifications in red and blue ink. The road has been built as seen on the site view. Mr Mackenzie had used similar material around 2008-2009 to build a road in relation to the sand extraction business on Lot 8 as stated in his second ROI on 11 June 2014 noted above at [381(d)]. The use of recovered fines for a road on Lot 8 around 2008-2009 was confirmed in the affidavit of Mr Ulizzi sworn 13 September 2016 in which he recounted attending Lot 8 with Mr Mulligan in 2009 to view a road being constructed by Grafil with recovered fines supplied by Aussie Skips referred to above at [384(a)].
The Pt 3A approval for the sand extraction facility on Lot 218 contained the following condition relating to an access road (see image above at [35]) during the charge period: Road Upgrades 31. The Proponent shall upgrade Lavis Lane (including the eastern section leading to the private haul road to provide a minimum 6 metre sealed carriageway, to the satisfaction of Council, within 6 months of the commencement of quarrying operations on Lot 218, unless otherwise agreed by the Director-General.
Section 75B(3) of Pt 3A of the EPA Act provides: (3) Related development If only part of any development is a project to which this Part applies, the other parts of the development are (subject to subsection (4)) taken to be a project to which this Part applies. The development is to be dealt with under this Part as a single project. …
In his second ROI dated 11 June 2014 Mr Mackenzie stated in respect of the materials comprising Stockpiles 1 and 2 that he "had to go through a change of use or a change of my DA, which we're doing that now, to house these materials" (Q 126).
I have set out above in [380]-[384] the evidence of Mr Mackenzie and others which supported my finding that he was intending to use the material in Stockpiles 1 and 2 for the road for which Macka's Sand had Pt 3A approval.

[136]

EPA submissions

The EPA submitted that the discussion between Mr Jamieson and Mr Mackenzie on 9 May 2012, the advice of the Council to Mr Bruce Mackenzie and the proposed notice of licence variation (referred to above at [41]-[43]) indicate that both accused were aware of receiving material on Lot 8 without development consent. The receipt and storage of the material in Stockpiles 1 and 2 was not ancillary to the activity authorised in the 1977 consent.
Despite proposing a 2,500 tonne cap on waste storage at Lot 8, Umwelt's letter of 25 January 2013 did not disclose that thousands of tonnes of processed and unprocessed building and demolition waste was being received and stored on Lot 8. It appears from Mr Jamieson's ROI (at [47] above) that Umwelt did not know the true situation. Grafil and Mr Mackenzie certainly knew the true situation. Thousands of tonnes of waste was being received and stored on Lot 8 which the EPL and extant development consent did not permit.
From these correspondences between the EPA, the Council, Mr Mackenzie on behalf of Grafil and Umwelt the Court would be satisfied that despite: 1. the terms of the discussion between Mr Jamieson and Mr Mackenzie on 9 May 2012; 2. the advice of the Council to Mr Bruce Mackenzie that the storage of waste comprising bricks, concrete or building demolition was not ancillary to sand extraction (as referred in its letter to the EPA of 6 August 2012); 3. the letter and proposed notice of licence variation sent by Mr Jamieson to Grafil (and Mr Mackenzie) on 17 December 2012 which repeated the substance of the Council's letter as well as proposing a prohibition on unprocessed and processed demolition waste; and 4. the terms of the letter from Umwelt to Mr Jamieson dated 25 January 2013 which represented that "significantly less than the legislated volumes" was received and processed on site, to the knowledge of Grafil and Mr Mackenzie substantial quantities of both processed and unprocessed building and demolition waste was being received and stored on Lot 8 from 29 October 2012.
Referring to the correspondence between the EPA and Mr Mackenzie on 17 December 2012, 15 March 2013 and 2 April 2013 and the Umwelt letter dated 28 January 2013 (summarised above at [43]-[45]), the EPA submitted that Mr Mackenzie knowingly did not disclose to the EPA that Grafil had been receiving and storing demolition waste for the purpose of constructing a road. Instead, Mr Mackenzie in his letter dated 2 April 2013 had only referred to the "use of material designated as waste" which was integral to Grafil's "ongoing operations". Mr Mackenzie also acknowledged the need for development consent to receive and store waste in his letter of 2 April 2013 to the EPA when he noted that a DA was in the process of being prepared.

[138]

No additional development consent required in charge period

The EPA must establish beyond reasonable doubt that development consent was required for the temporary stockpiling of recovered fines and ENM on Lot 8 during the charge period. Arguably the temporary stockpiling of the recovered fines and ENM material can be viewed as ancillary to the 1977 consent allowing sand extraction and related activities such as road construction on Lot 8 for the purposes of that business.
The intended use of the material for the construction of a road approved under the Pt 3A approval more precisely accords with the evidence of Mr Mackenzie. The EPA's case consistently failed to recognise that the Pt 3A approval granted in 2009 provided for roads to be constructed during the charge period. That the road route changed after the charge period is immaterial.
Whether the temporary stockpiling was ancillary to the activity authorised by the Pt 3A approval arises. In Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157 (Foodbarn) at 161 Glass JA (Samuels and Hutley JJA agreeing) stated; It may be deduced that where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another party, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used. Doubtless the same principle would apply where the dominant and servient purposes both relate to the whole and not to separate parts.
In Baulkham Hills Shire Council v O'Donnell (1990) 69 LGERA 404 (O'Donnell) at 409-410): …Notwithstanding the principles laid down in Foodbarn, it does not follow that a use which can be said to be ancillary to another use is thereby automatically precluded from being an independent use of the land. It is question of fact and degree in all the circumstances of the case whether such a result ensures or not. When a resident uses his land to park his motor car at his house, he is no doubt not conducting an independent use of car parking; when an employer installs at his factory a canteen for his workers, no doubt he is not conducting an independent use of running a restaurant; when the Clarks grew vegetables for their table they were not conducting an independent use of vegetable growing. But when one use of the land is by reason of its nature and extent capable of being an independent use it is not deprived of that quality because it is "ancillary to", or related to, or interdependent with, another use. If a book publisher opens a sales room at his publishing house to sell his products, the selling of books is an independent use although ancillary to the use of publishing.
The purpose and nature of the temporary stockpiling render it ancillary to the approved activity of road construction in accordance with principles identified in Foodbarn as refined in O'Donnell. It was not an independent use of land by reason of its nature and extent, rather it was a subordinate use to the purpose of road building.
As Grafil submitted there is also statutory support for this conclusion in s 75B(3) of Pt 3A (now repealed) which provides in relation to Pt 3A projects that other parts of a development are taken to be part of the approved Pt 3A development. That the Pt 3A approval was granted to Macka's Sand not Grafil is irrelevant given that the approval applied to Lot 8.
Much was made in the EPA's evidence of interactions between Mr Jamieson, the Council, Mr Bruce Mackenzie, Mr Mackenzie and Umwelt to the effect that Grafil through its directors knew that building and demolition waste stored or disposed of on Lot 8 required development consent. Further it was submitted that Mr Mackenzie failed to inform Mr Jamieson and Grafil's consultant Umwelt of the presence of a large amount of processed and unprocessed building waste being brought onto Lot 8. The EPA's submissions attributed a particular mental state to Mr Mackenzie whereby he misled the EPA about what he intended to do on Lot 8. This evidence is irrelevant to the issue of lawful authority. I do not consider there is anything misleading in what Mr Mackenzie said or wrote to Mr Jamieson of the EPA about his intentions for Grafil on Lot 8. The EPA does not recognise the application of the resource recovery exemptions in its case. Mr Mackenzie's letter dated 2 April 2013 to Mr Jamieson referring to "use of material designated as waste" integral to ongoing operations reflects his understanding of the need to regularise waste material to be used in the sand extraction business. The presence of exempt material in Stockpiles 1 and 2, which I have found the ENM and CPRF exemption applies to future use for a road, is a separate and lawful use of Lot 8 under the EPA Act. Mr Mackenzie's response in his second ROI dated 11 June 2014 does not change my finding.
No failure to obtain development consent has been established by the EPA and consequently there was no failure by Grafil to obtain lawful authority.

Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie

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