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

Court of Criminal Appeal (NSW)|2019-07-10|Before: Preston CJ, Davies J, Adamson J

Electricity Trust of South Australia v Krone (Australia) Technique Pty Ltd (1994) 51 FCR 540 Environment Protection Authority v Ampol Ltd (1993) 81 LGERA 433 Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79 Environment Protection Authority v Foxman Environmental Development Services Pty Ltd [2015] NSWLEC 105 Environment Protection Authority v Hardt (2006) 148 LGERA 61; [2006] NSWLEC 438 Environment Protection Authority v Land and Environment Court (NSW) (2004) 134 LGERA 140; [2004] NSWCA 50 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 Ex parte McGavin; Re Berne (1946) 46 SR (NSW) 58 Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157 Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180 Hardt v Environment Protection Authority (2007) 156 LGERA 337 IMF (Australia) v Sons of Gwalia Ltd (2005) 143 FCR 274 Mouawad v Hills Shire Council (2013) 199 LGERA 28; [2013] NSWLEC 165 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Pullen v Smedley [2017] NSWSC 1721 Shannongrove Pty Ltd v Environment Protection Authority (2013) 84 NSWLR 668; [2013] NSWCCA 179 Sharp Corp of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 Sherritt Gordon Mines Ltd v Federal Commissioner of Taxation [1977] VR 342 State of Western Australia v Minister for Aboriginal and Torres Strait Islander Affairs (1994) 49 FCR 507 Talay v R [2010] NSWCCA 308 The Ombudsman v Moroney [1983] 1 NSWLR 317 Tovir Investment Pty Ltd v Waverley Council [2014] NSWCA 379 Vines v Djordjevitch (1955) 91 CLR 512; [1955] HCA 19 Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 5) [2013] NSWLEC 68 Wong v Minster for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722 Texts Cited: NSW Government Gazette No 114 on 10 September 2010 NSW Government Gazette No 108 on 19 October 2012 Macquarie Dictionary 5th Edition Category: Principal judgment Parties: Environment Protection Authority (Appellant) Grafil Pty Ltd (First Defendant) Robert Mackenzie (Second Defendant) Representation: Counsel: Ms A Mitchelmore SC, with Mr P English (Appellant) Mr C Ireland (Defendants)

Solicitors: Legal Services Branch, Environment Protection Authority (Appellant) Johnson Winter & Slattery Lawyers (Defendants) File Number(s): 2016/157886 & 2016/157995 Publication restriction: Nil Decision under appeal Court or tribunal: Land and Environment Court Jurisdiction: Criminal Citation: [2018] NSWLEC 99 Date of Decision: 28 June 2018 Before: Pain J File Number(s): 2016/157886 & 2016/157995

HEADNOTE [This headnote is not to be read as part of the judgment] The Environment Protection Authority ("EPA") prosecuted Grafil Pty Ltd ("Grafil") under s 144(1) of the Protection of the Environment Operations Act 1997 ("POEO Act") for using land described as Lot 8 as a waste facility without lawful authority. Mackenzie, as the director of Grafil, was also charged for the offence against s 144(1), by virtue of s 169 of the POEO Act. Grafil carried on the extraction of sand on Lot 8 pursuant to a development consent granted in 1977. In 2009, approval was granted under Part 3A of the Environmental Planning and Assessment Act 1979 ("EPA Act") for extraction of sand on the nearby Lots 218 and 220, and the construction of various access roads. Between 29 October 2012 and 15 May 2013, Grafil received various loads of material from recycling facilities. The material was stockpiled in 2 or 3 stockpiles on Lot 8, pending use as road base. The precise volume of material was not established beyond reasonable doubt; however a range of 24,000 - 44,000 tonnes was identified. Asbestos was also detected in the stockpiles. Grafil and Mackenzie pleaded not guilty to the charges in the Land and Environment Court. The proceedings raised the construction of various provisions of the POEO Act and Protection of the Environment Operations (Waste) Regulation 2005 ("Waste Regulation"). The terms "waste" and "waste facility" were defined in the Dictionary to the POEO Act. Waste facility was defined to mean "any premises used for the storage, treatment, processing, sorting or disposal of waste (except as provided by the regulations)". The definition of "waste" involved five limbs, including relevantly paragraph (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". Clause 3B(1) of the Waste Regulation prescribed those circumstances as the application to land by the methods in 3B(1)(a)(i)-(iii), including relevantly "depositing on the land". The parties also contested whether Grafil had proceeded without lawful authority. Section 48 of the POEO Act provided that "premises-based scheduled activities" required an environment protection licence (EPL). Schedule 1 Pt 1 of the POEO Act listed premises-based scheduled activities, including relevantly cl 39 "waste disposal by application to land" and cl 42 "waste storage". Grafil contended it did not require an EPL due to the operation of two notices of exemption granted under cll 51 and 51A of the Waste Regulation. Section 144(2) provided that "the defendant bears the onus of proving that there is lawful authority to use the land concerned as a waste facility", however the parties contested who bore the onus of proving the applicability of the exemptions. Grafil also contended that its activities were ancillary to the 1977 development consent and Pt 3A approval. In the Land and Environment Court, the trial judge found that the defendants were not guilty, but did not make final orders. The EPA brought a stated case pursuant to s 5AE(1) of the Criminal Appeal Act 1912 alleging various legal errors in the findings of the trial judge. There were 15 questions submitted on behalf of the prosecutor, and one further "threshold question" raised by the defendants. These questions were grouped into the following categories: (i) Whether s 5AE of the Criminal Appeal Act allowed the EPA to make a second request substantially different to the request as first made and, whether the EPA waived or otherwise abandoned the right to make a s 5AE request in those circumstances (the threshold question). (ii) Was the material in the stockpiles "waste" as defined? (iii) Was the activity of stockpiling material the scheduled activity of "waste disposal (application to land)" so as to require a licence? (iv) Was the activity of stockpiling the material the scheduled activity of "waste storage" so as to require a licence? (v) Was the activity of stockpiling the material exempted so as to be a non-scheduled activity for which a licence is not required? Who bore the onus of proving that the activity was exempted due to the operation of the notices of exemption? (vi) What was the legal consequence of the presence of asbestos in the material in the stockpiles? (vii) Was the activity of stockpiling the material without the lawful authority of a development consent? (viii) Was a continuing offence proven? (ix) Were the charged offences time barred? The Court (Preston CJ of LEC, Davies and Adamson JJ agreeing) held: In relation to (i): (1) Section 5AE of the Criminal Appeal Act permits the EPA to make a request before the completion of the proceedings: at [80], [411], [414]; the form of question first submitted is not relevant to the competency of the final request under s 5AE(1): at [81], [411], [412]; the form of the questions can change, even substantially, between the first and final submitted questions: at [83], [411], [419]; section 5AE did not limit the EPA to make only one request: at [84], [411], [412]; any delay in settling the questions finally submitted did not affect the competency of the questions: at [85], [411], [412]; (2) Unless a proposed question of law is "so obviously frivolous and baseless that its submission would be an abuse of process", the trial judge is obliged on request by the Crown to submit a question of law: at [81], [411], [412]; the obligation on the trial judge to submit a question of law is not dependent on the identification of any particular question of law, but only on the request: at [82], [411], [417]; Ex parte McGavin; Re Berne (1946) 46 SR (NSW) 58, Talay v R [2010] NSWCCA 308 and Environment Protection Authority v Land and Environment Court (2004) 134 LGERA 140 followed. (3) Grafil did not prove that the EPA had waived its right to submit a s 5AE request: at [84], [411], [412]; (4) The EPA's conduct was not an abuse of process: at [86], [411], [421]; In relation to (ii): (5) The trial judge misconstrued the definition of "waste" in the Dictionary to the POEO Act by finding that if material was "processed, recycled, re-used or recovered" it could only fall into paragraph (d) of the definition: at [115], [132], [411], [412]; the paragraphs of the definition of waste are not mutually exclusive: at [115], [411], [412]; (6) The trial judge misconstrued paragraph (d) of the definition of waste and cl 3B of the Waste Regulation by finding that paragraph (d) and cl 3B raised an independent first question of whether a substance is applied to land before the question of whether a substance is applied to land by one of the methods prescribed by cl 3B(1)(a)(i)-(iii): at [153], [411], [412]; clause 3B(1)(a)(i)-(iii) prescribes what is application to land for the purposes of paragraph (d) of the definition of waste: at [153], [411], [412]; (7) On the facts found by the trial judge the material in the stockpiles was waste within the meaning of paragraph (d) as there was "depositing on the land" within the meaning of cl 3B(1)(a) of the Waste Regulation: at [157], [411], [412]; the trial judge erred by holding that the material was not waste, as the facts necessarily fell within the statutory description: at [157], [411], [412]; In relation to (iii): (8) The trial judge erred by importing a two-step inquiry into the definition of waste disposal by application to land: at [171], [411], [412]; the scheduled activity labelled as "waste disposal by application to land" is conclusively and exhaustively defined to be the application to land by the methods in (a)-(c) of cl 39(1): at [171], [411], [412]; (9) The material received off site and deposited in the stockpiles involved application to land by the method specified in paragraph (a) of cl 39(1), "depositing on the land": at [173], [411], [412]; In relation to (iv): (10) The trial judge erred in construing the concept of "storage" as excluding temporary stockpiling of material; the temporary storage of waste in stockpiles pending the transfer of the waste to another place amounted to the scheduled activity of waste storage in cl 42 of Sch 1 to the POEO Act: at [189]-[193], [411], [412]; In relation to (v): (11) The general rule that the burden of proving every element of an offence rests on the prosecutor is subject to any statutory exception: at [222], [411], [412]; Director of Public Prosecutions v United Telecasters Sydney Ltd (1990) 168 CLR 594; [1990] HCA 5 considered. (12) The express language in s 144(2) of the POEO Act indicates a legislative intention that the matter of lawful authority is an exception upon which the defendant bears the onus of proof: at [226], [411], [412]; (13) Grafil bore the onus of proving that it had lawful authority to use the land as a waste facility due to the operation of the notices of exemption granted under cll 51 and 51A of the Waste Regulation: at [228], [411], [412]; (14) There are not different principles for construing statutory instruments to the principles for construing legislation or delegated legislation: at [257], [411], [412]; practical considerations do not permit a rewriting of the statutory instrument to provide a practical outcome: at [257], [411], [412]; Tovir Investment Pty Ltd v Waverley Council [2014] NSWCA 379 considered; Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 and 4nature Incorporated v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; [2017] NSWCA 191 followed. (15) The trial judge erred in construing the notices of exemption by adopting a practical approach inconsistent with the language of the statutory instruments: at [271]-[272], [411], [412]; (16) The exemptions did not apply to Grafil's activities as Grafil failed to comply with the conditions of the exemptions: at [294], [411], [412]; In relation to (vi): (17) The trial judge erred by finding that whether waste "contains asbestos" was a matter of fact and degree depending on the nature of the waste and the volume: at [323], [411], [412]; (18) The definition of asbestos waste, being "any waste that contains asbestos", does not depend on the absolute or proportionate amount of asbestos contained in the waste: at [325], [329], [411], [412]; waste that includes asbestos or has asbestos as its contents or constituent parts is asbestos waste: at [325], [411], [412]; Pullen v Smedley [2017] NSWSC 1721 and Environment Protection Authority v Foxman Environmental Development Services Pty Ltd [2015] NSWLEC 105 considered. In relation to (vii): (19) The offence element "without lawful authority" includes not only an absence of lawful authority under the POEO Act, but also not obtaining and carrying out development in accordance with a development consent under the EPA Act: at [336], [411], [412]; Environment Protection Authority v Hardt (2006) 148 LGERA 61; [2006] NSWLEC 438, Hardt v Environment Protection Authority (2007) 156 LGERA 337 and Environment Protection Authority v Terrace Earthmoving Pty Ltd (No 3) (2016) 217 LGERA 222; [2016] NSWLEC 50, considered. (20) The trial judge erred in finding that the stockpiling of material was ancillary or subordinate to the 1977 consent or the original Pt 3A approval as there was no evidentiary foundation for so finding: at [363], [373], [411], [412]; In relation to (viii): (21) The trial judge misdirected herself in determining whether the EPA had proven a continuing offence by wrongly focusing on the deposition of "non-exempt waste": at [388], [411], [412]; (22) The trial judge failed to exercise jurisdiction by not addressing the manner of breach of storing waste on the land: at [393], [411], [412]; and In relation to (ix): (23) The trial judge misdirected herself in determining whether the offences were time barred by asking whether "non-exempt waste" was deposited on the relevant dates: at [407], [411], [412].

Judgment

PRESTON CJ OF LEC: Grafil Pty Ltd ("Grafil") was the occupier of land at 2684 Nelson Bay Road, Salt Ash, formerly described as Lot 8 in DP833768 ("Lot 8") and Lot 102 in DP1017462 ("Lot 102"). Grafil carried out on Lot 8 the development of the extraction of sand pursuant to a development consent granted in 1977 under the then Local Government Act 1919. Grafil produces different grades of sand for purposes such as horticulture, turf grass, building and construction.
Grafil was issued an environment protection licence (EPL 12108) under the Protection of the Environment Operations Act 1997 ("POEO Act") on 31 May 2005 authorising the carrying out of the scheduled activities of "land based extractive activity" and "crushing, grinding or separating works". That licence continued in force during 2012 and 2013. By operation of s 258(2) of the POEO Act, Grafil, being the holder of the licence in respect of Lot 8, is taken to be the occupier of Lot 8.
Between 29 October 2012 and 15 May 2013, Grafil received various loads of material from four recycling facilities in Sydney. The material was stockpiled in two or three stockpiles on Lot 8. Although the precise volume of material in the stockpiles was not established beyond reasonable doubt, a range of 24,000 - 44,000 tonnes was identified.
Asbestos was detected in the stockpiles in numerous samples. The precise volume of asbestos was not established beyond reasonable doubt. One report recorded 634.64 grams of asbestos in the bulk samples. The amount of bonded asbestos in the stockpiles was found to be minor and the amount of friable asbestos was found to be very small.
The Environment Protection Authority ("EPA") prosecuted Grafil for using Lot 8 as a waste facility without lawful authority, an offence under s 144(1) of the POEO Act. In the summons commencing the proceedings, the EPA alleged that the waste was "material comprising, amongst other things, mixed construction and demolition waste and asbestos, which was deposited at the Premises, to form three stockpiles". The EPA allege that the manner of breach was that "the Premises was used as a waste facility for storing and/or disposal of waste on the land."
Mr Robert Mackenzie is a director of Grafil. The EPA prosecuted Mr Mackenzie for committing the same offence against s 144(1) of the POEO Act by reason of the executive liability provision in s 169(1) of the POEO Act.
The Land and Environment Court (Pain J) found Grafil, and hence Mr Mackenzie, not guilty of committing the offence against s 144(1) of the POEO Act with which they were charged.
The trial judge, at the request of the EPA, submitted under s 5AE(1) of the Criminal Appeal Act 1912, questions of law arising at or in reference to the proceedings to the Court of Criminal Appeal.
Grafil and Mr Mackenzie (who I will refer to collectively as Grafil as their interests and arguments are coterminous) contested that the request by the EPA for the trial judge to submit questions of law was a competent request or allowed by s 5AE of the Criminal Appeal Act. They raise the competency of the EPA's request as a threshold question. I disagree with Grafil that the request was not competent and would answer the threshold question accordingly.
The questions submitted by the trial judge generally concern the trial judge's construction and application of the offence provision (s 144 of the POEO Act) and other relevant provisions of the POEO Act and regulations engaged by the offence provision. The EPA contended that the trial judge misconstrued and misapplied, in various ways, these relevant statutory provisions. For the most part, I agree with the EPA. These submitted questions should be answered appropriately to my conclusions on the questions. The Court below should redetermine the proceedings in light of these answers to the questions.

The offences charged and the submitted questions raised

The offence with which Grafil was charged was against s 144(1) of the POEO Act, which provided: "(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."
The elements of this offence are that: 1. the person is the owner or occupier of any land, 2. that person uses the land, or causes or permits the land to be used, as a waste facility, and 3. that use is without lawful authority.
The onus of proving elements (a) and (b) rests on the prosecutor. The onus of proving element (c) was in contest. Section 144(2) of the POEO Act provides: "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."
Notwithstanding this provision, the parties disagreed as to its meaning and application. The EPA contended that once it has established that the impugned activity was of a nature for which lawful authority was required, the defendants bore the onus to prove, on the balance of probabilities, that they had all relevant lawful authority. For the POEO Act, this would involve proving that they had a licence authorising the carrying out of the activity on the premises or that, by reason of an exemption, the activity was a non-scheduled activity for which a licence was not required. For the Environmental Planning and Assessment Act 1979 ("EPA Act"), this would involve proving that they had a development consent or other approval under the EPA Act approving the carrying out of the activity on the land and that the activity was carried out in accordance with the development consent or other approval.
Grafil contended to the contrary that the onus rests on the prosecutor to prove both that lawful authority was required and had not been obtained. This included proving that any exemptions did not apply.
The trial judge held that the prosecutor was required to prove beyond reasonable doubt that lawful authority was required and was absent before the onus of proof shifted to the defendant under s 144(2) of the POEO Act. The EPA challenged this finding in one of the submitted questions (question 8).
As to element (a) of the offence, there was no contest that Grafil was an occupier of the land of Lot 8 on which the materials were stockpiled. Grafil was the holder of a licence for the premises and was thereby taken to be the occupier of the premises. Element (a) was therefore satisfied.
As to element (b), there was no contest that Grafil was using the land of Lot 8, but the issue was whether Grafil was using the land as a "waste facility".
A "waste facility" is defined in the Dictionary to the POEO Act to mean "any premises used for the storage, treatment, processing, sorting or disposing of waste (except as provided by the Regulations)".
Grafil was charged with using Lot 8 as a waste facility by carrying out two of the actions specified in this definition of "waste facility", namely storing and/or disposing of waste.
"Waste" is defined in the Dictionary to the POEO Act in an inclusive manner: "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."
Some of these paragraphs of the definition of "waste" are in turn elaborated by further definitions or regulations.
The concept of the "environment" in paragraph (a) of the definition is defined in the Dictionary to the POEO Act widely: "environment means components of the earth, including: (a) land, air and water, and (b) any layer of the atmosphere, and (c) any organic or inorganic matter and any living organism, and (d) human-made or modified structures and areas, and includes interacting natural ecosystems that include components referred to in paragraphs (a)-(c)."
A "substance", referred to in each of the paragraphs of the definition of "waste", is defined in the Dictionary to the POEO Act to include a "matter or thing".
Paragraph (d) refers to "circumstances prescribed by the regulations" in which substances are applied to land. Clause 3B of the Protection of the Environment Operations (Waste) Regulation 2005 ("Waste Regulation") prescribes the circumstances for the purposes of paragraph (d): "(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."
Paragraph (e) of the definition of "waste" refers to a substance being prescribed by the regulations to be waste. Clause 3A of the Waste Regulation at the time of the charge period provided: "For the purposes of paragraph (e) of the definition of waste in the Dictionary to the Act, a substance is prescribed as waste if the substance: (a) is not otherwise included as waste within the meaning of the Act, and (b) is reasonably capable of being applied to land at a scheduled waste facility, and (c) is received by a waste facility to which section 88 of the Act applies."
Section 88 of the POEO Act provided, so far as is relevant: "(1) This section applies to waste facilities that are required to be licensed under this Chapter, but it does not apply to a facility that the EPA determines is used solely for the purposes of re-using, recovering, recycling or processing waste other than liquid waste. (2) The occupier of a waste facility to which this section applies is required to pay to the EPA in respect of all waste received at the facility such contribution as is prescribed by the regulations."
Waste facilities required to be licensed under Ch 3 of the POEO Act are those activities that, firstly, are scheduled activities and, secondly, for which Sch 1 of the POEO Act indicates that a licence is required for premises at which the activity is carried out. Section 5(1) of the POEO Act provides that the activities listed in Schedule 1 to the POEO Act are scheduled activities. Clause 1(1) of Sch 1 of the POEO Act provides that "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)". Schedule 1 lists the various activities, including, of relevance to waste, in cl 39 "waste disposal (application to land)", in cl 40 "waste disposal (thermal treatment)", in cl 41 "waste processing (non-thermal treatment)" and in cl 42 "waste storage".
Section 48 of the POEO Act makes it an offence to carry out a scheduled activity for which a licence is required without holding a licence authorising that activity. Section 48 provides: "(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."
The trial judge held that the material in the stockpiles on Lot 8 fell within the description of "any processed, recycled, re-used or recovered substance produced wholly or partly from waste" in the opening phrase of paragraph (d) of the definition of "waste"; as a consequence, the material could not fall within any other paragraph of the definition of "waste"; and the waste that was stockpiled on Lot 8 was not "applied" to the land, either in the ordinary meaning of the word "applied" or in the circumstances prescribed in cl 3B of the Waste Regulation. These findings are challenged by the EPA in two submitted questions (questions 1 and 5).
As to element (c) of the offence, a person may be found to have used land as a waste facility without lawful authority in four ways: 1. where s 48 of the POEO Act and Sch 1 to the POEO Act require a licence for premises at which a scheduled activity is carried out, the person who is the occupier of the premises on which the scheduled activity is carried out is not the holder of a licence that authorises that activity to be carried out on at those premises; 2. where the POEO Act, Waste Regulation and a notice of exemption exempt a responsible person from s 48 of the POEO Act in respect of cll 39 and 42 of Sch 1 to the POEO Act in relation to activities involving the relevant waste specified in the notice of exemption, the responsible person does not meet all requirements specified in the notice of exemption; 3. where the activity involves the transportation, disposal, re-use or recycling of any type of asbestos waste, regardless of whether the activity is required to be licensed, the person who carries out the activity does not comply with the requirements specified in cl 42 of the Waste Regulation in relation to the activity concerned; and 4. where the use of land as a waste facility requires development consent under the EPA Act, the person carries out that development without development consent having been granted for the use or not in accordance with any development consent that has been granted for the use.
Starting with the first way, cl 1(1) of Sch 1 to the POEO Act provides that, for the purposes of s 48 of the POEO Act, any activity that is declared by Part 1 of Sch 1 to the POEO Act 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. Schedule 1 lists two types of premises-based activities of relevance to the charge that Grafil used Lot 8 for "storing and/or disposing of waste" on the land: "waste disposal (application to land)" and "waste storage". These activities are defined in Sch 1 as follows: "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, (b) sites outside 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, being waste generated inside the regulated area, (c) sites outside the regulated area that, over any period of time, receive from off site a total of no more than 20,000 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, being waste generated outside the regulated area, (d) sites that receive from off site no more than 100 tonnes of waste tyres per year or 10,000 waste tyres in total over any period (and no other waste), (e) sites where only virgin excavated natural material is received from off site and applied to land, (f) sites that: (i) are outside the regulated area, and (ii) are owned and operated by or on behalf of a local council, and (iii) were in existence immediately before 28 April 2008, and (iv) were not required to be licensed before 28 April 2008, and (v) had, before 28 April 2008, provided the details required under clause 47 of the Protection of the Environment Operations (Waste) Regulation 2005, and (vi) receive from off site less than 5,000 tonnes per year of general solid waste (putrescible), general solid waste (non-putrescible), clinical and related waste, asbestos waste, grease trap waste or waste tyres (or any combination of them), but only if the waste has been generated outside the regulated area. (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."
If Grafil's use of Lot 8 involved either or both of these activities, Grafil needed a licence authorising the activity or activities to be carried out on Lot 8. It was not in contest that Grafil did not have such a licence authorising the carrying out of these activities on Lot 8.
In relation to the scheduled activity of "waste disposal (application to land)", the trial judge found that the stockpiling of materials on Lot 8 did not involve the scheduled activity of "waste disposal (application to land)" because there was not "waste disposal by application to land" within the chapeau of the description of the activity of "waste disposal (application to land)"; the methods of application specified in paragraphs (a) to (c) of the description of that activity do not qualify the words "waste disposal by application to land" in the chapeau; and an application to land requires more than placement of materials on land temporarily before their application to land for the intended purpose of providing road base to construct an access road. The EPA challenged these findings in two submitted questions (questions 3 and 4).
In relation to the scheduled activity of "waste storage", the trial judge found that the stockpiling of materials on Lot 8 did not involve the scheduled activity of "waste storage" because there was a distinction between the temporary stockpiling of material for the purposes of applying it to land for road construction and the separate activity of waste storage; the stockpiles were not being used for storage pending the transfer of material; and 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 EPA challenged these findings in two of the submitted questions (questions 6 and 7).
The second way in which a person may not have lawful authority to use land as a waste facility is if the POEO Act and Waste Regulation and any notice of exemption exempt a person from the requirement to be a holder of a licence authorising the carrying out of a scheduled activity on premises, but the person does not comply with all requirements specified in the notice of exemption.
Section 286(1) of the POEO Act provides that the regulations may exempt persons, premises and activities, amongst other matters or things, from specified provisions of the POEO Act or the regulations. The Waste Regulation exempts certain persons and certain activities. Clause 51 of the Waste Regulation contains general provisions relating to exemptions. Clause 51 provides: "(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. (5) An application for a specific exemption must: (a) be in the approved form, and (b) be accompanied by such fee (if any) as the EPA may determine, and (c) be accompanied by such information, documents or evidence as may be required by the EPA for the purposes of determining whether the exemption should be given. (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. (9) A specific exemption may be amended or revoked by the EPA by way of written notice given to the responsible person. (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."
Clause 51A of the Waste Regulation makes particular exemptions relating to certain waste. Clause 51A provides: "(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."
Pursuant to cll 51 and 51A of the Waste Regulation, the EPA has granted two general exemptions of relevance. The first is referred to as "The 'continuous process' recovered fines exemption September 2010" ("the 'continuous process' recovered fines exemption") that was published in the NSW Government Gazette No 114 on 10 September 2010. The second is referred to as "The excavated natural material exemption 2012" ('the excavated natural material exemption") that was published in the NSW Government Gazette No 108 on 19 October 2012.
The "continuous process" recovered fines exemption identifies the relevant waste that is the subject of the exemption as "'continuous process' recovered fines that meet the requirements of section 7" (in section 6). The term "'continuous process' recovered fines" means "a soil or sand substitute with a typical particle size of less than 9.5mm that is derived from the processing of mixed construction and demolition waste including residues from the processing of skip bin waste."
Section 5 of the notice of exemption describes the 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. This Notice of Exemption is a general exemption for the purposes of clause 51(3) of the Regulation."
The two types of responsible person are the "processor" and the "consumer". Both terms are defined in section 6 of the notice of exemption. Of relevance to this case, "consumer" is defined to mean "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."
The trial judge found that Grafil was a "consumer" for the "continuous process" recovered fines exemption. The EPA challenged this finding in submitted question 12.
The provisions from which the responsible person is exempt under the notice of exemption includes section 48 of the POEO Act in respect of cll 39 and 42 of Sch 1 to the POEO Act. Section 48 is the statutory provision that requires a person to be the holder of a licence that authorises the carrying out of a scheduled activity on premises. Clauses 39 and 42 of Sch 1 to the POEO Act are two of the listed scheduled activities, being "waste disposal (application to land)" and "waste storage" respectively.
The conditions with which a responsible person must comply in order to be exempt from, amongst other provisions, s 48 of the POEO Act in respect of cll 39 and 42 of Sch 1 to the POEO Act are, for a consumer, "all requirements specified in section 7, 9, 10 and 11."
Section 7 of the notice of exemption specifies the general conditions with which the responsible person must comply: "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."
Section 9 specifies the particular conditions that must be met by the consumer for the exemption to apply: "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."
Section 10 of the notice of exemption specifies the chemical and other material property requirements for the relevant waste of "continuous process" recovered fines: "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 is then set out specifying the particular chemical and other material property requirements.
Section 11 of the notice of exemption specifies the sampling and testing requirements: "11. This Notice of Exemption only applies to 'continuous process' recovered fines sampled according to the requirements in Table 3."
Table 3 is then set out specifying the sampling and testing requirements.
Section 5.2 of the notice of exemption specifies the consequence of the responsible person complying with the conditions of the notice of exemption: the activity referred to in cll 39 or 42 of Sch 1 of the POEO Act, from which the responsible person is exempt, is taken to be a non-scheduled activity for the purposes of the POEO Act. Accordingly, the responsible person is not required by s 48 of the POEO Act to be the holder of a licence authorising the carrying out of the activity on the premises.
The excavated natural material exemption identifies the relevant waste the subject of the exemption as "excavated natural material that meets the requirements of section 7" (in section 6). The term "excavated natural material" is defined in section 6 of the notice of exemption to mean: "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."
Section 5 of the notice of exemption describes the 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. This Notice of Exemption is a general exemption for the purposes of clause 51(3) of the Regulation."
The two types of responsible person are the "generator" and the "consumer". These terms are defined in s 6. Of relevance, "consumer" is defined to mean "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."
The trial judge found that Grafil was a "consumer" for the excavated natural material exemption. The EPA challenged this finding in submitted question 12.
The provisions from which the responsible person is exempt include s 48 of the POEO Act in respect of cll 39 and 42 of Sch 1 to the Act. The conditions that must be met in order for the responsible person to be exempt are, for a consumer, "all requirements specified in section 7 and 9."
Section 7 specifies the general conditions that must be met: "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."
Section 9 of the notice of exemption specifies the particular conditions that must be met by the consumer for the exemption to apply: "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."
Again, cl 5.2 of the notice of exemption specifies the consequence of the responsible person complying with the conditions of the notice of exemption: the activity referred to in cll 39 or 42 of Sch 1, from which the person is exempt, is taken to be a non-scheduled activity for the purposes of the POEO Act. Accordingly, the responsible person is not required by s 48 of the POEO Act to be the holder of a licence authorising the carrying out of the activity on the premises.
The trial judge found that both exemptions applied so as to exempt Grafil from the requirement to be the holder of a licence authorising the carrying out of the scheduled activities of waste disposal (application to land) or waste storage. In so finding, the trial judge construed each notice of exemption, and the conditions to be met by the responsible person for the exemption to apply, firstly, "sensibly and practically"; secondly, as not requiring the consumer, as opposed to the processor or generator, to meet all requirements specified in Column 3 of Table 1 in each notice of exemption; and thirdly, as not precluding Grafil from relying on the exemptions if it did not meet conditions of the notices of exemptions to keep certain records of the quantity of the relevant waste received at the premises (condition 9.1 of the "continuous process" recovered fines exemption and condition 9.2 of the excavated natural material exemption).
The EPA challenged these findings in two submitted questions (questions 1 and 11).
The third way in which a person using land as a waste facility may not have lawful authority is if the activity involves the transportation, disposal, re-use or recycling of any type of asbestos waste and the person does not comply with cl 42 of the Waste Regulation. Clause 42 provides: "(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."
The term "asbestos waste" is defined in cl 50(1) of Sch 1 to the POEO Act to mean "any waste that contains asbestos". "Asbestos" is defined to mean: "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."
At the trial, the EPA did not allege that Grafil was using Lot 8 as a waste facility without lawful authority by reason of Grafil not complying with cl 42 of the Waste Regulation. Instead, the presence of asbestos in the stockpiles on Lot 8 was relevant in two ways. First, the storage of more than 5 tonnes of "asbestos waste" on land makes the activity the scheduled activity of "waste storage" under cl 42(3)(a) of Sch 1 to the POEO Act. Second, the activity will not be exempt from s 48 of the POEO Act in respect of cll 39 and 42 of Sch 1 to the POEO Act under the excavated natural material exemption if the material in the stockpiles "contains asbestos", as the definition of "excavated natural material" excludes material that contains asbestos.
The trial judge found that cl 42 of the Waste Regulation operated entirely separately from the resource recovery exemption provisions in cl 51 and 51A of the Waste Regulation; the "continuous process" recovered fines exemption should not be construed as if it contained a condition about asbestos; and the presence of asbestos is irrelevant to whether the "continuous process" recovered fines exemption applied to Grafil's use of Lot 8.
The EPA challenged the trial judge's findings construing and applying cl 42 of the Waste Regulation and cl 50 of Sch 1 to the POEO Act in submitted question 9.
The trial judge, in any event, held that whether the stockpiles of materials on Lot 8 can be considered "asbestos waste" as defined is a matter of fact and degree and depended on the nature of the waste and its volume. The EPA challenged this finding, in submitted question 10, not as a finding of fact, but rather as misinterpreting the defined term "asbestos waste".
As to the fourth way that a person may be found to have used land as a waste facility without lawful authority, the requirement of lawful authority is not limited to having lawful authority under the POEO Act but extends to having lawful authority under other planning and environmental laws, including the EPA Act. If an environmental planning instrument made under the EPA Act provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless such a consent has been obtained and is in force and the development is carried out in accordance with the consent and the instrument: see s 76A, now s 4.2(1) of the EPA Act.
In this case, a development consent under the predecessor statute to Part 4 of the EPA Act, the Local Government Act, had been granted in 1977 permitting the extraction of sand on Lot 8. By 2009, sand extraction and processing had moved onto land in the vicinity, although separated from Lot 8, being Lot 218 in DP 1044608 (Lot 218) and Lot 220 in DP 1049608 (Lot 220). Lots 218 and 220 are owned by Worimi Local Aboriginal Land Council. By agreement with that land council, Macka's Sand Pty Ltd extracts sand on Lots 218 and 220, which is then processed by Grafil. Mr Mackenzie and his father are the directors of Macka's Sand Pty Ltd.
Macka's Sand Pty Ltd applied on 29 October 2008 and was granted on 20 September 2009 an approval (approval 08-0142) under Part 3A of the EPA Act for the extraction of sand on Lots 218 and 220 and the construction of access roads across Lot 3 in DP 739188 and the subject land Lot 8 (both owned by Mr Mackenzie and his father), Lot 227 in DP 1097995 (owned by Worimi Local Aboriginal Land Council) and Lot 13 in DP 753192 and Lot 101 in DP 753192 (an agreement existed with the owners of these lots to allow access to Lot 218). The Part 3A approval also required the upgrading of Lavis Lane which formed part of the access road to Lot 218 within six months of commencing operation on Lot 218.
On 30 November 2009, Macka's Sand Pty Ltd was issued an environment protection licence (EPL 13218) authorising the carrying out of the scheduled activity of the extraction of sand on the premises of Lots 218 and 220. The licence EPL 13218 was varied on 19 January 2012 and 1 February 2013. By reason of s 258(2) of POEO Act, Macka's Sand Pty Ltd, as the holder of the licence, was taken to be the occupier of Lots 218 and 220.
Two modifications were made to the Pt 3A approval. On 18 October 2012, Macka's Sand Pty Ltd requested an alternate access road to Lot 218 across Lots 4, 1, 810, 58 and 122 (collectively referred to as the "Williamtown properties"). B & RB Mackenzie FT Pty Ltd was the registered proprietor of the Williamtown properties. The first modification was approved on 30 September 2013. This was over four months after the end of the charge period (which was 29 October 2012 to 15 May 2013). On 20 July 2015, a further request was made to modify the Pt 3A approval (the second modification). Amongst other things, the second modification requested that an access road cross Lots 1-3 in DP 118072. The second modification was approved on 15 March 2016.
The location of the originally approved access road was completely different to the location of the modified access road approved by the first modification. The originally approved access road (and Lavis Lane) approached the sand extraction site on Lot 218 from the west, while the modified access road approached the sand extraction site on Lot 218 from the north - there was no overlap in the location of the two access roads.
The trial judge found that the stockpiling of materials on Lot 8 during the charge period was ancillary or subordinate to the development authorised by the 1977 development consent and the original Pt 3A approval, notwithstanding that the stockpiled materials were not intended to be used as road base to construct the access road in the location approved in the 1977 development consent or the original Pt 3A approval, but instead were to be used at a later date, after the charge period, in the construction of an access road at the different location approved by the first modification of the Pt 3A approval. The EPA challenged the trial judge's findings in submitted question 15.
An offence against s 144(1) of the POEO Act can be a continuing offence, as the penalty for an offence reveals, but whether a particular offence committed by an offender is a continuing one depends on the particular conduct constituting the offence. The trial judge found that the EPA had not proved that during the charge period a continuing offence took place because the EPA had not proved that during the charge period only "non-exempt waste" was deposited. In referring to non-exempt waste, the trial judge was referring to waste other than the relevant waste that was the subject of the "continuous process" recovered fines exemption and the excavated natural material exemption. The trial judge considered that these notices of exemption operated to exempt the relevant waste, so that the material comprising the relevant waste that was deposited on the land was not "waste" as defined, rather than to exempt the activities involving the relevant waste from being scheduled activities that required a licence. The EPA challenged these findings in submitted question 13.
The prosecution for the charged offences against Grafil and Mr Mackenzie had to be commenced "within but not later than three years after the date on which the offence is alleged to have been committed" (s 216(1)(a) of the POEO Act), as they were prescribed offences (s 216(6) of the POEO Act). The trial judge found that the proceedings were not commenced within this three year period because the EPA did not prove that there was disposal of "non-exempt material" in the period 11 May 2013 to 15 May 2013. The trial judge considered that, to avoid the time bar, the EPA needed to prove that non-exempt material was received on 11, 12, 13 or 14 May 2013 but the EPA did not prove that the particular loads of material delivered on particular days were non-exempt. The continued presence of stockpiled materials on Lot 8 did not prove that the charged offence continued after it was completed by the last act of depositing non-exempt waste. The trial judge did not consider whether the charged manner of breach of storing waste on the land was continuing so as to constitute a continuing offence.
The EPA challenged the trial judge's finding that the charged offences were time barred by s 216(1)(a) of the POEO Act in submitted question 14.

The threshold question

Grafil raised a threshold question in two parts: first, whether s 5AE of the Criminal Appeal Act allowed the EPA initially to make a request in one form and, some many months later, to make a substantially different request in the form now submitted to the Court and, secondly, whether the EPA waived or otherwise abandoned the right to make a s 5AE request in those circumstances.
Grafil's argument on this threshold question was without merit. First, the request made by the EPA (which is a statutory body representing the Crown: see s 5(2) of the Protection of the Environment Administration Act 1991 (NSW)) was made before the completion of the proceedings before the Land and Environment Court, as required by s 5AE(1). The proceedings were heard in February and March 2018. The trial judge gave judgment on 28 June 2018 making findings but no orders. On 26 July 2018, the EPA requested the trial judge to submit questions of law, in the form provided by the EPA, to this Court. As the trial judge had not made final orders, the EPA's request was made "before the completion of the proceedings" as required by s 5AE(1).
Secondly, the form of the question first submitted by the EPA is not relevant to the competency of the EPA's request under s 5AE(1). Unless a proposed question of law is "so obviously frivolous and baseless that its submission would be an abuse of process", the trial judge is obliged on request by the Crown to submit a question of law: Ex parte McGavin; Re Berne (1946) 46 SR (NSW) 58 at 61 and Talay v R [2010] NSWCCA 308 at [11].
Thirdly, the obligation of the trial judge under s 5AE(1) to submit a question of law requested by the Crown is not dependent on the identification of any particular question of law, but only on the request. As was held in Environment Protection Authority v Land and Environment Court (NSW) (2004) 134 LGERA 140; [2004] NSWCA 50 at [54]: "The making of a request by the claimant that one or more questions of law be submitted is what enlivens the obligation of the judge hearing the proceedings to submit any question of law to the Court of Criminal Appeal for determination. The section does not in terms require that the request identify, or to indicate the nature of, any particular question of law; nor should such a requirement be inferred."
Fourthly, the fact that the form of the questions requested by the EPA to be submitted under s 5AE(1) changed, even if substantially, between the first request and final submitted questions, does not affect the competency of the questions finally submitted to this Court. The ordinary practice of submitted questions under s 5AE(1) entails delay in identifying, drafting and settling the appropriate questions to be submitted, including satisfying the trial judge that the requested questions do in fact pose a question of law for this Court's determination: Environment Protection Authority v Land and Environment Court (NSW) at [55].
Fifthly, Grafil has not established that, by making the first request, the EPA waived or abandoned its right to make a different request under s 5AE(1). As a matter of law, s 5AE did not limit the EPA to making only one request. Whether the EPA, by making one request, abandoned or waived its right to make a different request is a question of fact. No findings of facts by the trial judge accompanied the submitted threshold question to allow this Court to determine the threshold question (as to the necessity for submitted questions of law to be accompanied by the trial judge's determination of the facts, see Environment Protection Authority v Ampol Ltd (1993) 81 LGERA 433 at 437, 440).
Sixthly, any delay in settling the questions finally submitted under s 5AE(1) to this Court does not affect the competency of the questions. The only time limit imposed by s 5AE(1) is that the Crown request the trial judge to submit a question of law before the completion of proceedings. Provided that time limit is met, there is no bar to the question being submitted after any time, however long after the trial judge made findings or the Crown requested the trial judge to submit a question of law. The process for submitting a question of law under s 5AE(1), in this respect, stands in contrast to the process for a stated case under s 5BA(2) of the Criminal Appeal Act where there is a time limit of 28 days after the end of the appeal proceedings.
Finally, the EPA's conduct does not amount to an abuse of process, for the reasons given by Adamson J.
The threshold question should be answered, as to the first part, "yes" and as to the second part, "no".

Approach to consideration of the submitted questions

The submitted questions may be grouped under the following issues: 1. Was the material in the stockpiles "waste" as defined? 2. Was the activity of stockpiling the material the scheduled activity of "waste disposal (application to land)" so as to require a licence? 3. Was the activity of stockpiling the material the scheduled activity of "waste storage" so as to require a licence? 4. Was the activity of stockpiling the material exempted so as to be a non-scheduled activity for which a licence is not required? 5. What was the legal consequence of the presence of asbestos in the material in the stockpiles? 6. Was the activity of stockpiling the material without the lawful authority of a development consent? 7. Was a continuing offence proven? 8. Were the charged offences time barred?
I will deal with the submitted questions under these groups of issues.

Was the material in the stockpiles "waste" as defined?

The trial judge found that as the nature of the material in the stockpiles was a processed, recycled, re-used or recovered substance, it could only be waste within paragraph (d) of the definition of "waste" in the Dictionary to the POEO Act (at [273], [279], [280] and [305]), but because that material was not applied to the land, it did not fall within paragraph (d) (at [281], [284] and [300]). The material was therefore held by the trial judge not to be "waste" within the definition of waste (at [305]).
These findings give rise to submitted questions 2 and 5: "2. Did I misconstrue the POEO Act definition of 'waste' in finding that, if material is 'processed, recycled, re-used or recovered substance produced wholly or partly from waste' within the meaning of paragraph (d) of the definition of 'waste', the material will be 'waste', as defined, only if it is 'applied to the land in the circumstances prescribed by the regulation', within the meaning of paragraph (d), and the other paragraphs of the definition of 'waste' will not apply to the material? 5. Was it open on the facts found by me to hold that the material comprising Stockpiles 1 and 2 on Lot 8 was not applied to land as referred to in cl 3B(1)(a) of the Waste Regulations?"
Question 2 addresses the trial judge's construction of the definition of "waste" in the Dictionary to the POEO Act and in particular two aspects: 1. if the substance is a 'processed, recycled, re-used or recovered substance produced wholly or partly from waste", it cannot fall within any other paragraph of the definition (at [273], [280], [283] and [305]); and 2. such a substance must be applied to land before it can fall within paragraph (d) of the definition (at [281], [284] and [300]).
Question 5 relates to this second aspect of question 2 concerning application to the land. Clause 3B of the Waste Regulation prescribes the circumstances by which substances may be applied to the land for the purposes of paragraph (d) of the definition of "waste". The trial judge found there was no application to the land in the circumstances prescribed by cl 3B(1)(a) (at [302], [303]).
I will address these questions in two parts: first, the trial judge's construction of the definition of waste that a substance of the kind described in paragraph (d) cannot fall within any other paragraph of the definition of waste and, secondly, the trial judge's construction of the requirement in paragraph (d) that the substance be applied to the land.

The construction that paragraph (d) excludes the other paragraphs of the definition of waste

The EPA submitted that the trial judge misconstrued the definition of waste in the Dictionary to the POEO Act in multiple ways.
First, "waste" is defined inclusively by reference to paragraphs (a)-(e) of the definition. Waste "includes" a substance described in paragraphs (a) to (e) but is not limited to those substances.
Secondly, each of those paragraphs is formulated by reference to "any substance" meeting a particular description. The description of each category of substance is generally broad but not unqualified. Some descriptions of substances are more qualified than others, such as to require a causal effect (paragraph (a)), a particular application or use (paragraph (d)) or a specific regulatory prescription (paragraph (e)).
Thirdly, each of the paragraphs is qualified by the concluding sentence. A substance is not precluded from being waste within any of the paragraphs merely because it is or may be processed, recycled, re-used or recovered. This sentence reveals a legislative intention that a substance that is or may be processed, recycled, re-used or recovered can be waste for the purposes of paragraphs (a) to (e) in the definition, subject to satisfying the respective terms of the paragraphs.
Fourthly, the definition does not stipulate any hierarchy in terms of paragraphs (a) to (e) or that any of the paragraphs operates to the exclusion of any one or more of the other paragraphs. The definition uses the word "or" between each or the paragraphs. This has a dispersive effect so that a substance can be waste if it falls within any one or more of the paragraphs: Electricity Trust of South Australia v Krone (Australia) Technique Pty Ltd (1994) 51 FCR 540 at 547. The Land and Environment Court has proceeded, in other cases, on the basis that a substance can satisfy more than one paragraph of the definition of waste: Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 5) [2013] NSWLEC 68 at [208]-[210] and Environment Protection Authority v Foxman Environmental Development Services Pty Ltd [2015] NSWLEC 105 at [184]-[207].
Fifthly, paragraph (d) and the amendment to the concluding sentence to the definition of waste were inserted by the Protection of the Environment Operations Amendment Act 2005, Sch 1 Item [157]. The amendment had the effect of expanding or clarifying, but not restricting, the scope of the definition: Environment Protection Authority v Terrace Earthmoving Pty Ltd (2013) 84 NSWLR 679; [2013] NSWCCA 180 at [39]. There is no basis for construing the new definition of waste as being more restrictive than the earlier definition: Shannongrove Pty Ltd v Environment Protection Authority (2013) 84 NSWLR 668; [2013] NSWCCA 179 at [41].
Sixthly, the EPA submitted that the obiter comments of Basten ACJ in Environment Protection Authority v Terrace Earthmoving Pty Ltd at [42]-[44], relied on by the trial judge, do not assist in construing the new definition of waste in the Dictionary to the POEO Act. That case concerned the offence of unlawfully transporting waste under s 143 of the POEO Act. At the time of commission of the first offence, s 143 contained its own specific definition of waste (in s 143(4)), which was different to the definition of waste in the Dictionary to the POEO Act. By the time of the commission of the second offence, that specific definition had been removed from s 143(4) and the definition of waste in the Dictionary to the POEO Act had been amended (though it was still different to the current form of definition). In [42]-[44], Basten ACJ was commenting on the changes effected by the legislative amendments to the offence provision of s 143. The legislative amendments included, first, omitting the specific definition of waste in the former s 143(4) so that the definition of waste in the Dictionary to the POEO Act would apply; secondly, inserting paragraph (d) in the definition of waste in the Dictionary; thirdly, inserting the words "is or" in the concluding sentence of the definition of waste in the Dictionary; and fourthly, by omitting the specific definition of waste in the former s 143(4) (which included a second sentence that "a substance is not precluded from being waste merely because it may be reprocessed, re-used or recycled") and amending the definition of waste in the Dictionary, including by amending the concluding sentence (to be "a substance is not precluded from being waste for the purposes of this Act merely because it is or may be processed, re-used or recycled"), the meaning and effect of the concluding sentence of the definition of waste was changed.
Basten ACJ considered that the addition of paragraph (d) to the definition of waste in the Dictionary and the insertion of the word "is" in the concluding sentence of that definition: "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."
The EPA noted that Environment Protection Authority v Terrace Earthmoving Pty Ltd, as well as Shannongrove Pty Ltd v Environment Protection Authority, were not concerned with paragraph (d) of the definition of waste in the Dictionary to the POEO Act. Accordingly, Basten ACJ's comments were obiter. Basten ACJ's comments were also directed to construing the later repealed second sentence of s 143(4), which was relevant to the first offence in that case.
The concluding sentence of the definition of waste in the Dictionary to the POEO Act has been amended again since the decision in Environment Protection Authority v Terrace Earthmoving Pty Ltd to add reference to a substance that is recovered and to reorder the words to be "processed, recycled, re-used or recovered".
The EPA submitted that with the benefit of further detailed examination of the current definition of waste in the Dictionary to the POEO Act, and paragraph (d) in particular, the definition and paragraph (d) have a different intended operation than what Basten ACJ or the trial judge accorded to them.
Seventhly, the EPA submitted that the construction accepted by the trial judge that the paragraphs of the definition of waste are mutually exclusive would substantially limit the scope of substances that are capable of constituting waste for the purposes of the POEO Act. The EPA gave the example of a substance that falls within paragraph (a) of the definition. A processed, recycled, re-used or recovered substance produced wholly or partly from waste (for example, biosolids, being the organic product that results from sewerage treatment processes) that is discharged into the environment in such volume, consistency or manner as to cause an alteration in the environment would not constitute waste according to the trial judge's construction of the definition of waste.
The EPA submitted that to restrict the application of paragraph (a) of the definition of waste in the manner that the trial judge did is contrary to the objects of the POEO Act, and in particular, those in s 3(a) and (d)(i), (ii) and (iia) in relation to protecting, restoring and enhancing the quality of the environment in New South Wales and reducing risk to human health and preventing degradation of the environment. The definition of "waste" must be construed coherently with other provisions of the POEO Act, and by reference to its objects, notwithstanding that they operate at a level of generality (referring to Shannongrove Pty Ltd v Environment Protection Authority at [15], [17]).
Eighthly, the EPA submitted that the trial judge's construction would restrict the circumstances in which the offence of unlawfully transporting waste under s 143 of the POEO Act could occur. If the trial judge's construction of the definition of waste were to be correct, there would never be a transportation offence under s 143(1) of the POEO Act involving any processed, recycled, re-used or recovered substance produced wholly or partly from waste as the act of transportation is completed when the vehicle arrives at the relevant place, and does not extend to the act of deposition at the destination (which may constitute application to land): Environment Protection Authority v Terrace Earthmoving Pty Ltd at [35], [38]. The same truckload of recovered fines, for example, could qualify as waste for the purposes of a s 144(1) offence but not for a s 143(1) offence.
Grafil supported the trial judge's construction of the definition of waste; it was, after all, the construction Grafil advanced before the trial judge.
Grafil submitted that the trial judge was correct to find that whenever material came within paragraph (d) by being "any processed, recycled, re-used or recovered substance produced wholly or partly from waste", it could not be within any other paragraphs of the definition of waste.
Grafil submitted that the trial judge was correct to rely on the comments by Basten ACJ in Environment Protection Authority v Terrace Earthmoving Pty Ltd. Grafil submitted that the insertion of paragraph (d) in the definition of waste and the amendment of the concluding sentence to insert "is" had the effect of confining the circumstances in which material that was "processed, re-used or recycled" (to use the form of words in the concluding sentence at the time of the legislative amendment) was to be waste within the definition of waste.
Grafil submitted that paragraph (d) reveals a legislative intention that "processed, recycled, re-used or recovered substances" will only be waste if they are "applied to land". It is the action of applying these substances to land that causes these substances to be waste. If these substances could be waste under other paragraphs of the definition, this express qualification in paragraph (d) would be circumvented.
Grafil gave the example of a substance falling within the description of "any processed, recycled, re-used or recovered substance produced wholly or partly from waste" that is "surplus" within the meaning of paragraph (b) of the definition of "waste". Grafil submitted that it cannot properly follow that the substance is therefore "waste" by application of paragraph (b) of the definition, because the clear intention manifested in paragraph (d) is that the definition of "waste" will capture such a substance "that is applied to land or used as fuel, but only in the circumstances prescribed by the regulations". Those qualifications must be applied to the specific class of substances to which limb (d) is directed.
Grafil also relied on the exemptions that have been granted under cll 51 and 51A of the Waste Regulation in support of its construction of the definition of waste in the Dictionary to the POEO Act. Grafil submitted that the EPA's suggested construction of the definition of waste, whereby one could rely on paragraphs (a), (b), or (c) in the alternative would mean that the exemptions (which only operate in relation to material that is waste by virtue of paragraph (d)) would be rendered substantially ineffective and not be given their intended operation, which is to exempt certain kinds of processed, recycled, re-used or recovered material from the specified provisions of the POEO Act, including the requirement for a licence in s 48.
I find that the trial judge's construction of the definition of "waste" in the Dictionary to the POEO Act is erroneous, essentially for the reasons given by the EPA and summarised above. The paragraphs of the definition of waste are not mutually exclusive and in particular a substance that is processed, recycled, re-used or recovered can be waste not only by meeting the criteria in paragraph (d) but also because it meets the criteria in any one or more of the other paragraphs of the definition of waste.
There are a number of textual indicators in the definition of waste that speak against the trial judge's construction.
First, the definition is an inclusive definition: waste includes any substance that falls within any of paragraphs (a) to (e) but is not limited to those paragraphs.
Secondly, paragraphs (a) to (e) are joined by the word "or". Ordinarily the word "or" is used disjunctively, but whether this is the case will depend on the context in which the word appears: Commissioner of Taxation v Industrial Equity Ltd (2000) 98 FCR 573; [2000] FCA 420 at [19] and Electricity Trust of South Australia v Krone (Australia) Technique Pty Ltd at 547. In the context of the definition of "waste" in the Dictionary to the POEO Act, the word "or" does not have the effect of making each paragraph in the definition mutually exclusive, so that a substance can only fall within one but not more than one paragraph. Rather, the context suggests that the word "or" is used to indicate that a substance may fall within one or more of the paragraphs of the definition if the substance meets the criteria in those paragraphs. In particular, the use of the same word "or" between each of the five paragraphs cannot be read as causing paragraph (d) to operate to the exclusion of the other paragraphs. There is no basis for the word "or" before or after paragraph (d) to be read differently to the word "or" between the other paragraphs.
The legislative amendment that inserted paragraph (d) in the definition of waste had the effect of expanding, not restricting, the substances that could be waste under the definition: Environment Protection Authority v Terrace Earthmoving Pty Ltd at [39] and Shannongrove Pty Ltd v Environment Protection Authority at [41]. If the paragraphs of the earlier definition of waste were not to be read as mutually exclusive, the expansion of the definition by the insertion of another paragraph (paragraph (d)) should not be construed to have made all of the paragraphs mutually exclusive, or to have made (d) in particular operate to the exclusion of the other paragraphs. That would be to construe the new definition as being more restrictive than the earlier definition.
Thirdly, the concluding sentence makes it clear that a substance can be waste if it is, or may be, a processed, recycled, re-used or recovered substance. Contrary to Grafil's submission, the last sentence is not merely confirmatory of paragraph (d), that any processed, recycled, re-used or recovered substance produced wholly or partly from waste that is applied to land can be waste, it makes it clear that a substance that could otherwise fall within paragraphs (a), (b), (c) or (e) is not precluded from being waste merely because it is or may be processed, recycled, re-used or recovered.
A form of the concluding sentence predated the legislative amendment that inserted paragraph (d) of the definition of "waste" in the Dictionary to the POEO Act. That earlier concluding sentence applied to all of the then paragraphs of the definition. The insertion of paragraph (d) into the definition of waste and the amendment of the concluding sentence by inserting the word "is", and the later amendment to expand the types of substances to include a recovered substance, did not have the effect of restricting the operation of the concluding sentence to only paragraph (d) of the definition of waste. The concluding sentence continues to apply to all paragraphs of the definition of waste. This speaks against the trial judge's finding that a processed, recycled, re-used or recovered substance can only fall within paragraph (d) and no other paragraph.
Fourthly, paragraph (e) of the definition of waste enables substances to be prescribed by the regulations to be waste. This has been done. Clause 3A of the Waste Regulation prescribes a substance to be waste if the substance: "(a) is not otherwise included as waste within the meaning of the Act, and (b) is reasonably capable of being applied to land at a scheduled waste facility, and (c) is received by a waste facility to which section 88 of the Act applies."
Paragraph (a) of cl 3A of the Waste Regulation makes it clear that a substance can be waste if it "is not otherwise included as waste within the meaning of the Act." In this case, the trial judge found that although the material in the stockpiles answered the description of being "any processed, recycled, re-used or recovered substance", because it had not been "applied to land", it was not waste within the meaning of paragraph (d) of the definition of "waste". But assuming this were to be correct, and that the material did not fall within any of paragraphs (a), (b) and (c), the material would answer the description of being a substance "not otherwise included as waste within the meaning of the Act" in paragraph (a) of cl 3A of the Waste Regulation. It could therefore be waste for the purposes of paragraph (e) of the definition of waste, assuming that paragraphs (b) and (c) of cl 3A of the Waste Regulation were also met. The consequence is that a processed, recycled, re-used or recovered substance can be waste within paragraph (e) of the definition of waste. This is another indicator against the trial judge's construction that a processed, recycled, re-used or recovered substance can only fall within paragraph (d) of the definition of waste.
Fifthly, the language used in each paragraph of the definition of waste to describe the category of substance that can fall within the paragraph is general and employs different criteria. Each paragraph refers to "any substance", both "any" and "substance" being words of wide meaning. A "substance" is defined to include a "matter or thing". The criteria used to describe any substance are cast in general terms. The criteria also are directed to different attributes of the substance (such as paragraphs (b), (c) or (d)), application or use of the substance (paragraphs (c) or (d)), consequences or effects of the substance (paragraph (a)) or specific regulatory prescription (paragraph (e)). The general language and the different criteria used in the paragraphs have the consequence that a substance may readily fall within more than one of paragraphs (a), (b), (c) or (d). The exception is paragraph (e). As prescribed in cl 3A of the Waste Regulation, a substance can only fall within paragraph (e) of the definition of waste in the Dictionary to the POEO Act if it is not otherwise included as waste within any of the other paragraphs of the definition of waste.
The contextual indicators also do no support the trial judge's construction. As the EPA submitted, the trial judge's construction would limit the scope of substances that could be waste for the purposes of the POEO Act, which would restrict the circumstances in which the proscribed conduct of unlawfully using land for a waste facility (under s 144) or unlawfully transporting waste (under s 143) could occur. These are contextual indicators against the trial judge's construction of the definition of waste.
Grafil's argument, accepted by the trial judge, that a restricted construction of the definition of waste is necessary in order to give the exemptions work to do is unpersuasive. Grafil submitted that the exemptions granted under cl 51 and 51A of the Waste Regulation, in the form of the continuous process recovered fines exemption and the excavated natural material exemption, only apply to waste falling within paragraph (d) of the definition of "waste". Grafil noted that cl 51A(a) states that the clause applies to "waste that is waste by virtue of paragraph (d) of the definition of waste in the Dictionary to the Act".
The two notices of exemption identify the sources of power under which they were granted as being cll 51 and 51A of the Waste Regulation. Grafil then argued that these exemptions would be rendered inutile if processed, recycled, re-used or recovered substances could be waste not only by falling within paragraph (d) of the definition of waste but also by falling within any one or more of the paragraphs of the definition of waste. Grafil argued that the exemptions would not apply to waste that falls within paragraphs other than only paragraph (d) of the definition of waste.
The answer to Grafil's argument is threefold, as succinctly given by the EPA. First, the definition of "waste" in the Dictionary to the POEO Act is not to be construed by reference to any exemption that might have been granted under cll 51 and 51A of the Waste Regulation.
Secondly, the exemptions do not operate to change the nature or characterisation of the relevant waste to which the exemptions apply. Rather, the exemptions operate on the characterisation of the activity: the activity from which the person is exempt is taken to be a non-scheduled activity, instead of a scheduled activity, for the purposes of the POEO Act, so that a licence for the activity is not required (see section 5.2 of each notice of exemption). Having regard to this operation of the exemption on the activity and not on the waste, the exemptions do not assist in construing the meaning of the definition of "waste" in the Dictionary to the POEO Act or the characterisation of any particular substance as waste under that definition.
Thirdly, the feared inutility would not arise. Under cll 51 and 51A of the Waste Regulation, exemptions may be granted in relation to any person or class of persons (cl 51(2)(a)) or activity or class of activities (cl 51(2)(d)). Exemptions granted under the "continuous process" recovered fines exemption and the excavated natural material exemption both operate to exempt two classes of persons (a processor or generator and a consumer) from specified provisions of the POEO Act and Waste Regulation "in relation to activities involving the relevant waste" (in section 5.1 of each notice of exemption). The relevant waste is identified to be "'continuous process' recovered fines" and "excavated natural material", as defined in each notice of exemption. The definitions of the relevant waste do not expressly limit the relevant waste to be a processed, recycled, re-used or recovered substance falling within paragraph (d) of the definition of waste. Indeed, the definition of excavated natural material expressly excludes materials "that has been processed".
In any event, the exemptions are in relation to activities "involving" the relevant waste. An activity that involves waste falling within (d) will still answer the description of being an activity involving the relevant waste if it also involves waste that falls within one or more of the other paragraphs of the definition of waste. For example, an activity involving a substance that is processed, recycled, re-used or recovered that is applied to land, so as to fall within paragraph (d), but that is also discharged, emitted or deposited in the environment in such volume, consistency or manner as to cause an alteration of the environment, so as to fall within paragraph (a), can be described as "involving" waste that is waste by virtue of paragraph (d) of the definition.
For these reasons, the trial judge misconstrued the definition of waste in finding that, if material is "processed, recycled, re-used or recovered substance produced wholly or partly from waste" within the meaning of paragraph (d) of the definition of waste, the material cannot be waste within the other paragraphs of the definition of waste.

The construction that the substance be applied to the land

The second aspect of the trial judge's construction of paragraph (d) of the definition of waste concerned the requirement that the substance be "applied to the land… but only in the circumstances prescribed by the regulations".
The trial judge found that, in order for a substance of the kind described in paragraph (d) to be waste, it must firstly be "applied to the land" (at [281], [284], [303]) and, secondly, be applied in one of the circumstances prescribed in cl 3B(1)(a)(i) to (iii) of the Waste Regulation (at [303]). This construction created a two-step process: first, there must be application to land and, secondly, that application must fall within one of the modes prescribed by cl 3B(1)(a)(i) to (iii).
Having created this two-step process, the trial judge embarked on construing what was involved in waste being "applied to land" (the phrase in paragraph (d) of the definition of waste and the opening phrase in cl 3B(1)(a) of the Waste Regulation) or in "application to land" of waste (the phrase later used in cl 3B(1)(a) of the Waste Regulation). The trial judge considered that they should bear "the ordinary meaning of the words viewed in their statutory context". The trial judge referred at [292] to the dictionary definitions: "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)). "
Using these dictionary definitions, the trial judge at [296] drew a distinction between temporarily stockpiling waste and the application to land of waste: "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."
The trial judge later said at [303]: "That a substance is deposited on the ground does not mean that it has been applied to land. If material has been deposited on land for temporary stockpiling it has not been applied to land. Deposition of material on land is not synonymous with application to land for the reasons Grafil stated. Consequently the material was not applied to land as referred to in cl 3B(1)(a) of the Waste Regulation."
The trial judge found that in the present case Grafil had temporarily stockpiled materials on Lot 8 but that this did not involve the materials being "applied to land". Hence, the first step of the two-step process was not satisfied and there was no warrant to go on to consider the second step of whether the material had been applied in the circumstances prescribed in cl 3B(1)(a)(i) to (iii).
The EPA submitted that the trial judge misconstrued paragraph (d) of the definition of waste and cl 3B(1)(a) of the Waste Regulation by creating this two-step process. Neither statutory provision creates an independent first question of whether the substance is applied to land before a second question of whether the application falls within one of the modes prescribed in cl 3B(1)(a).
For paragraph (d) of the definition of waste, the phrase "applied to land" is expressly linked to "the circumstances prescribed by the regulation" by the phrase "but only in". This makes clear that the application to land of waste is undertaken by doing the actions prescribed as methods of application in cl 3B(1)(a)(i) to (iii) of the Waste Regulation.
For cl 3B(1) of the Waste Regulation, the opening words identify that the circumstances specified in the clause are the circumstances prescribed for the purposes of paragraph (d) of the definition of waste. The opening words of paragraph (a) of cl 3B(1) identify, in relation to substances that have been applied to land, the methods by which substances will be taken to involve application to land. For example, the methods prescribed in subparagraph (i) include spreading or depositing substances on the land. The doing of those actions of spreading or depositing substances on land is prescribed as being application to land of the substances.
Accordingly, properly construed, neither paragraph (d) of the definition of waste nor cl 3B(1)(a) of the Waste Regulation entail a threshold question as to whether the substance is applied to land that is independent of the methods of application in subparagraphs (i) to (iii) of cl 3B(1)(a).
In the alternative, the EPA submitted that even if paragraph (d) of the definition of waste and cl 3B(1)(a) do impose an independent requirement for there to be application to land, the meaning of "application" and "applied" employed by the trial judge was unduly narrow. The trial judge relied on one of the dictionary definitions of the word "application", being "the act of putting to a special use or purpose". The trial judge considered that dictionary definition requires more than placement on land temporarily before its application to land for the intended purposes (at [296]).
The EPA submitted that although the trial judge acknowledged that "the use of dictionary definitions are well recognised as not providing a substitute for construing words in their context" (at [292]), that is the very error made by the trial judge. The trial judge's imposition of a requirement to examine the "(special) use or purpose" of placing the substance on the land, in order to decide whether there has been an application to the land of the substance, is not commensurate with the function of paragraph (d) of the definition of waste or cl 3B(1)(a) of the Waste Regulation to identify methods by which the substance is applied to the land.
The EPA noted that, in the context of s 144 of the POEO Act more generally, there is no requirement to demonstrate, in accordance with planning law concepts, that the use of land was for the purpose of a waste facility; it need only be demonstrated that, in the circumstances, there was such a use: Environment Protection Authority v Hardt (2006) 148 LGERA 61; [2006] NSWLEC 438 at [106]-[108]; Hardt v Environment Protection Authority (2007) 156 LGERA 337; [2007] NSWCCA 338 at [13], [28]-[29]; Wollondilly Shire Council v Foxman (No 5) [2013] NSWLEC 68 at [224]; Mouawad v Hills Shire Council (2013) 199 LGERA 28; [2013] NSWLEC 165 at [139]-[140]; Environment Protection Authority v Foxman Environmental Development Services Pty Ltd at [265]; Environment Protection Authority v Terrace Earthmoving Pty Ltd [2016] NSWLEC 50 at [122]-[128].
As to the question of whether the application falls within one or more of the methods of application prescribed in cl 3B(1)(a) of the Waste Regulation, the EPA submitted that, on the facts found by the trial judge, there was "depositing on the land" of the materials in the stockpiles within cl 3B(1)(a). The facts found necessarily fell within this statutory description of a method of application to land.
Grafil maintained its argument, which found favour with the trial judge, that there is an independent first question of whether a substance is applied to land before a second question of whether the application falls within one of the modes in cl 3B(1)(a)(i)-(iii) of the Waste Regulation.
In paragraph (d) of the definition of waste, Grafil pointed to the position of the phrase "applied to land" before the phrase "but only in the circumstances prescribed by the regulations" as demonstrating that there is an independent first question of whether the substance is applied to the land. In cl 3B(1)(a) of the Waste Regulation, Grafil pointed to the opening words "in relation to substances that are applied to land, the application to land by" as indicating that there is an independent first question of whether a substance is applied before the question of whether the application fits within one of the modes of application set out in subparagraphs (i)-(iii).
Grafil submitted that cl 3B of the Waste Regulation should be construed with the exemptions made under cll 51 and 51A of the Waste Regulation, as the trial judge did in [294]. Clause 3B prescribes circumstances for the purposes of paragraph (d) of the definition of waste and cl 51A also applies to waste that is waste by virtue of paragraph (d) of the definition of waste. When cl 3B is construed with the exemptions granted under cl 51A, Grafil submitted it is evident that application to land in cl 3B cannot mean mere stockpiling but denotes actual use of the material on land "for the purposes of construction of landscaping" (cl 7.2 of the continuous process recovered fines exemption) or "as engineering fill or used in earthworks" (in cl 7.2 of the excavated natural material exemption).
Grafil observed that "stockpiling" is not a term used in cl 3B of the Waste Regulation or paragraph (d) of the definition of waste; it is not a prescribed method of application to land. Grafil submitted that if stockpiling is application to land, this would mean that any stockpile resting on land would be within cl 3B. There is no suggestion in cl 3B that this is its intent or purpose. There would be no work given to the balance of cl 3B if this interpretation is adopted as waste material is always, at some point in time before its ultimate use, kept in a stockpile.
Grafil contended that a practical and purposive construction of cl 3B of the exemptions is required, consistently with Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180 at 183, Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 at [20] and Tovir Investment Pty Ltd v Waverley Council [2014] NSWCA 379 at [54]. The trial judge's approach both respects the text and the purpose of the words of cl 3B and the exemptions.
Finally, Grafil submitted that paragraph (d) of the definition of waste and cl 3B should not be construed as embracing stockpiling or storage awaiting the later intended application of the material to land as that was the effect of a later regulation that repealed and replaced the Waste Regulation. Clause 6 of the Protection of the Environment Operations (Waste) Regulation 2014, which replaced the former cll 3A and 3B of the Waste Regulation, expanded the substances prescribed for the purposes of paragraph (e) of the definition of waste in the Dictionary to the POEO Act to include: "(b) any processed, recycled, re-used or recovered substance produced wholly or partly from waste that is intended to be applied 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…"
I find that the trial judge's construction of paragraph (d) of the definition of waste and cl 3B(1)(a) of the Waste Regulation regarding the requirement for the waste to be applied to land was erroneous, essentially for the reasons given by the EPA and summarised above. Neither paragraph (d) of the definition of waste nor cl 3B(1)(a) of the Waste Regulation raises an independent first question of whether a substance is applied to land before the question of whether the substance has been applied to land by one of the methods prescribed by cl 3B(1)(a)(i)-(iii). Instead, those provisions establish what will constitute application to land for the purposes of paragraph (d) of the definition of waste. A substance will be applied to land for the purposes of paragraph (d) of the definition of waste only by undertaking one or more of the methods specified in cl 3B(1)(a)(i)-(iii). It is the undertaking of those methods that is application to land. The language of paragraph (d) of the definition of waste and of cl 3B(1)(a) is clear in this regard, for the reasons given by the EPA and summarised earlier.
As the meaning of the phrase "applied to land" and "application to land" are defined by the circumstances prescribed in cl 3B(1)(a) of the Waste Regulation, there is no warrant to construe what is meant by the words "applied" or "application" by reference to dictionaries or the ordinary meaning of those words. The trial judge was in error to do so.
Contrary to Grafil's submission, no assistance is to be gained, in construing the phrases "applied to land" and "application to land" in paragraph (d) of the definition of waste in the Dictionary to the POEO Act or cl 3B(1)(a) of the Waste Regulation, by referring to the exemptions that have subsequently been granted under cll 51 and 51A of the Waste Regulation, for the same reasons I gave earlier in response to Grafil's similar submission on construing the relationship between the paragraphs of the definition of waste. No assistance is also to be gained from the later amendment of what was formerly cl 3A of the Waste Regulation to prescribe another substance as waste for the purposes of paragraph (e) of the definition of waste in the Dictionary to the POEO Act.
For these reasons, the trial judge misconstrued paragraph (d) of the definition of waste in the Dictionary to the POEO Act and cl 3B(1)(a) of the Waste Regulation regarding the requirement for a substance to be applied to land.
As the EPA submitted, on the facts found by the trial judge, there was "depositing on the land" of the materials in the stockpiles within cl 3B(1)(a) of the Waste Regulation. As the facts necessarily fell within this statutory description of a method of application to land, the trial judge erred in law in holding to the contrary.

Answers to questions 2 and 5

Question 2 should be answered "yes". Question 5 should be answered "no".

Was the activity the scheduled activity of waste disposal (application to land)?

The reason why the trial judge found that the stockpiling of material on Lot 8 was not the scheduled activity of waste disposal (application to the land) in cl 39 of Sch 1 to the POEO Act was that the trial judge found that there was not "waste disposal by application to land" within the chapeau of cl 39(1). As the trial judge had done for paragraph (d) of the definition of "waste" in the Dictionary to the POEO Act and cl 3B(1) of the Waste Regulation, the trial judge construed cl 39(1) as involving two questions: the first question of whether there has been "waste disposal by application to land", being the words in the chapeau of cl 39(1), which must be found to apply before the second question of whether the application is by any of the methods specified in cl 39(1)(a) to (c) is considered (at [295]).
These findings gave rise to submitted questions 3 and 4: "3. Was it open on the facts found by me to hold that: (a) The words "waste disposal by application to land" in the chapeau of cl 39(1) of Schedule 1 to the POEO Act must first be found to apply before sub-cll (a), (b) and (c) can be considered; (b) Subclauses (a), (b) and (c) of cl 39(1) of Schedule 1 to the POEO Act do not qualify the words "waste disposal by application to land" in the chapeau of cl 39(1) of Schedule 1 to the POEO Act; and (c) Application to land requires more than (a material's) placement on land temporarily before its application to land for the intended purpose? 4. Was it open on the facts found by me to hold that the material comprising Stockpile 1 and Stockpile 2 on Lot 8 was not applied to land during the charge period within the meaning of cl 39(1) of Schedule 1 to the POEO Act, by reason of it being temporarily stockpiled pending its use as road base?"
The EPA submitted that the trial judge misconstrued cl 39(1) of Schedule 1 to the POEO Act in similar ways to how the trial judge misconstrued cl 3B(1) of the Waste Regulation.
First, the phrase "waste disposal by application to land" in the chapeau of cl 39(1) is the label given to the scheduled activity described in cl 39. Subclause (1) defines the meaning of that activity, labelled as "waste disposal by application to land". The use of the word "meaning" in cl 39(1), after the labelled activity "waste disposal by application to land", is specific, making the definition conclusive and exhaustive: Sherritt Gordon Mines Ltd v Federal Commissioner of Taxation [1977] VR 342 at 353; State of Western Australia v Minister for Aboriginal and Torres Strait Islander Affairs (1994) 49 FCR 507 at 519. The description of the activity that follows the word "meaning" conclusively and exhaustively defines the activity of "waste disposal by application to land". There is no warrant to construe any of the words of the label of the activity, including the words "application to land".
Secondly, in the definition of the activity of "waste disposal by application to land", the methods of application specified in paragraphs (a) to (c) will constitute application to land of waste received from off site for the purposes of the definition. These methods of application do not exhaust what may constitute application to land of waste; that is clear from the use of the word "including" and the words in parenthesis "(but not limited to)". But certainly the methods specified in paragraphs (a) to (c) will constitute the application to land of waste for the purposes of the definition.
Thirdly, following on from these two points, if the activity involved one or more of the methods specified in paragraphs (a) to (c), the activity will be application to land of waste and there is no warrant to independently determine whether the activity involves "the application to land of waste" in any other sense, including the ordinary meaning of those words. The effect of the definition is that undertaking the actions specified in paragraphs (a) to (c) is taken to be application to land of waste for the purposes of the definition.
In these ways, the EPA submitted that the trial judge misconstrued cl 39(1) by not construing the phrase "waste disposal by application to land" in the chapeau of cl 39(1) by reference to the balance of the subclause.
The EPA submitted that the trial judge also made the same error that she had made with respect to cl 3B of the Waste Regulation of erroneously construing the phrase "waste disposal by application to land" by taking into consideration Grafil's subjective purpose in determining whether the requirements in cl 39(1) had been met. The trial judge applied the dictionary definition of "application" of being "the act of putting to a special use or purpose" in order to hold that application "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" (at [296]). That approach was erroneous for the reasons the EPA advanced in relation to cl 3B of the Waste Regulation.
The EPA contended that, on the facts found by the trial judge, the action of depositing the material received from off site on the land in Lot 8 to form the stockpiles amounted to application by the method of depositing waste on land specified in cl 39(1)(a). It therefore involved the "application to land of waste received from off site" within the meaning of the defined activity of "waste disposal by application to land." The EPA submitted that this conclusion "is consistent with the terms of the clause read as whole and in context, and the more general proposition that disposal of waste by depositing does not require that it be at its final resting place (Environment Protection Authority v Anning [1998] NSWLEC 129 at [26])."
Grafil supported the trial judge's two-step process of construction of cl 39(1), as this was the construction it had urged before the trial judge. Grafil contended that the trial judge in [295] was "merely explaining the usual process of reading the chapeau first and observing that the examples are inclusive or expressed not to be limiting of the words of the chapeau." Grafil maintained that the chapeau establishes the first requirement that there be application to land which must be satisfied before addressing the second requirement of whether that application involves one or more of the methods set out in paragraphs (a) to (c).
Grafil reiterated its submission, made in relation to cl 3B(1) of the Waste Regulation, that application to land of waste requires more than temporary stockpiling.
I find that the trial judge misconstrued cl 39(1) of Sch 1 to the POEO Act, in a similar way to how the trial judge misconstrued paragraph (d) of the definition of waste and cl 3B(1) of the Waste Regulation. My reasons are those I gave in relation to the proper construction of those provisions as well as the reasons given by the EPA, summarised above, in relation to cl 39(1).
On a proper construction, cl 39(1) does not permit the two-step inquiry undertaken by the trial judge of first ascertaining whether there has been application of waste to land before enquiring whether that application is by one of the methods specified in paragraph (a) to (c). Instead, there is but one enquiry. The scheduled activity labelled as "waste disposal by application to land" is conclusively and exhaustively defined to have the meaning given in the description that follows the word "meaning". That description specifies that application of waste received from off site by any of the methods given in paragraphs (a) to (c) of the description will be "application to land of waste received from off site", and hence will involve the scheduled activity of "waste disposal by application to land".
There is no basis in the language of cl 39(1) independently to construe the meaning of the words used in the label for the scheduled activity of "waste disposal by application to land" and, in particular, the words "application to land" in that label. The trial judge erred in doing so. As a consequence, the trial judge erred in employing the dictionary definition of "application", as being the act of putting to a special use or purpose, in order to determine whether the placement of waste on land temporarily before its application to land for the intended purpose of constructing a road involved application to land.
On the facts found by the trial judge, the material received from off site that was deposited (and to an extent spread) in stockpiles on land in Lot 8 involved application by a method specified in paragraph (a) of cl 39(1). As such, it constituted the application to land of waste received from off site within the meaning of the defined activity of "waste disposal by application to land."
For these reasons, each of the three questions in question 3 should be answered "no" and question 4 should be answered "no".

Was the activity the scheduled activity of waste storage?

The trial judge found that the stockpiling of material on Lot 8 was not the scheduled activity of "waste storage" in cl 42 of Sch 1 to the POEO Act for two reasons. First, the trial judge considered that "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" (at [301]). Secondly, the trial judge considered that "the evidence did not establish that Stockpiles 1 and 2 were being used for storage pending the transfer of material" (at [301]).
These findings gave rise to submitted questions 6 and 7 which stated: "6. Was it open on the facts found by me to hold that 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 (under cl 42 of Schedule 1 of the POEO Act)? 7. Was it open on the facts found by me to hold the evidence did not establish the Stockpiles 1 and 2 were being used for storage pending the transfer of material for the purposes of cl 42 of Schedule 1 of the POEO Act?"
The EPA submitted that the trial judge firstly erred in considering cl 42 of Sch 1 to the POEO Act by taking into account Grafil's intention or purpose in stockpiling the materials comprising stockpiles 1 and 2, for the reasons given in relation to the same error the trial judge made when considering cl 39 of Sch 1 of the POEO Act.
Secondly, the EPA submitted that the text of cl 42(1) and (3) of Sch 1 to the POEO Act allow for the storage of waste to be temporary. The definition of "waste storage" in cl 42(1) includes "storage for transfer" of waste. Paragraphs (a), (b) and (c) of cl 42(3) refer to waste being stored on the premises "at any time". Both of these references are consistent with the fact that acts of storage and stockpiling may be temporary.
The EPA noted that the trial judge did not explain how, as a matter of statutory construction, the distinction the trial judge drew 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", was supported as a matter of statutory text. Rather, the trial judge relied on the factual circumstances in the case (at [301]).
The EPA submitted, however, that on a proper construction of the statutory provision and on the facts found by the trial judge, the material in the stockpiles did satisfy criteria in cl 42(3): for paragraph (a), there was more than 5 tonnes of asbestos waste and for paragraph (c), there was more than 2,500 tonnes of waste (other than waste referred to in paragraphs (a) or (b)) stored on the premises at any time. The EPA's assertion that there was more than 5 tonnes of asbestos waste was contested and is the subject of submitted questions 9 and 10. The EPA's assertion that there was more than 2,500 tonnes of other waste was not, however, in dispute, the trial judge having found that there was between 24,000 to 44,000 tonnes of material in the stockpiles.
The EPA submitted that the effect of cll 42(1) and (3)(a) and (c) was to declare the storage of the relevant waste at the volumes prescribed to be the scheduled activity of waste storage, irrespective of the period over which the activity occurred. By introducing a distinction that finds no footing in the text of cl 42 and is inconsistent with its terms, the trial judge misdirected herself as to the law.
The EPA also submitted that, on the facts found by the trial judge, the materials in the stockpiles were being used for storage pending transfer of the material, within the meaning of waste storage in cl 42(1) of Sch 1 to the POEO Act. The trial judge had concluded that the material comprising stockpiles 1 and 2 was being temporarily stockpiled for the purposes of applying it to land for road construction and that 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 (at [301]). The entity which owned the land on which the material was intended to be applied for road construction was B & RB Mackenzie FT Pty Ltd. The access road for which the stockpiled material was to be applied as road base was the modified road access the subject of the first application to modify the Part 3A approval. None of the land over which the modified access road was to be constructed included Lot 8, being the lot on which the materials were stockpiled.
The EPA submitted that, despite making these findings, the trial judge found that the evidence did not establish that stockpiles 1 and 2 were being used for storage pending transfer of the material. That conclusion was not open on the evidence. The facts which were found by the trial judge admitted of only one answer, being that the material comprising stockpiles 1 and 2 were being stored pending transfer of the material to the other lots, for the purposes of providing access to the sand extraction facility being carried out on Lots 218 and 220.
The EPA submitted that, having regard to the proper construction of cl 42(1), the facts found by the trial judge on the basis of the evidence are necessarily within the description of that phrase in cl 42(1) and therefore amount to "waste storage". The trial judge's conclusion to the contrary is wrong in law: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156-157.
Grafil supported the "logical" distinction drawn by the trial judge at [301] between the temporary stockpiling material for the purpose of applying it to land in road construction and the actual application of the material to land for that purpose. The distinction between storage and land application is evident from the circumstance that cl 39 of Sch 1 to the POEO Act deals with one activity (application to land) whilst cl 42 deals with the other activity (storage). One cannot read those two clauses sensibly without respecting that distinction.
Grafil submitted that the same distinction is recognised in the exemptions granted under cll 51 and 51A of the Waste Regulation. Grafil gave the example of the "continuous process" recovered fines exemption. Clause 7 conditionally permits recovered fines to be "applied to land", including for the purposes of some classes of road construction, while cl 9, in stating that the consumer must land apply the relevant waste within a reasonable period of time, necessarily contemplates that the consumer might need to temporarily store material before it is actually applied to land. Grafil submitted that this is to be expected. Instantaneous application to land is not realistic when it comes to the use of recovered fines for the permitted construction and landscaping purposes identified in cl 7 of the exemption. If temporary storage of such materials, or activities inherent in the temporary storage (such as placement of them on the ground in a stockpile), constituted application of the materials to land, these clauses of the "continuous process" recovered fines exemption would be rendered inoperative.
I find that the trial judge did misconstrue cl 42 of Sch 1 of the POEO Act, and, as a consequence, misapplied it to the facts.
First, whether an activity is the scheduled activity of "waste storage" is to be determined by reference to the definition of that activity in cl 42(1) and the type and volumes of waste specified in cl 42(3). The activity of "waste storage" is defined in cl 42(1) as "meaning the receiving from off site and storing (including storage for transfer) of waste." The activity defined in cl 42(1) is declared by cl 42(3) to be a scheduled activity if waste, of the type and in the volume specified in any of paragraphs (a) to (d), is stored on the premises or received from off site, as the case may be. If the activity concerned meets this definition in cl 42(1) and the criteria in any of cl 42(3)(a) to (d), the activity will be the scheduled activity of waste storage under cl 42 of Sch 1 to the POEO Act.
In this case, the stockpiling of material on Lot 8 certainly met the criteria in paragraph (c) of cl 42(3), as there was more than 2,500 tonnes of material stored on Lot 8 at any time. The stockpile may also have met the criteria in paragraph (a) of cl 42(3), by comprising more than 5 tonnes of "asbestos waste" (as that term is defined), for the reasons I give later when dealing with submitted questions 9 and 10.
The trial judge erred in construing the words "stored" in cl 42(3)(a) and (c) and "storing" and "storage" in cl 42(1) as excluding temporary stockpiling of material for the purpose of applying the material to land for road construction. That construction is inconsistent with both the ordinary meaning of "storage" and the statutory text and context in which the word "storage" is used.
The ordinary meaning of "storing" waste does not demand that the storage of waste be for any particular period of time or indeed permanent. Indeed, the ordinary meaning of storing connotes some future use or application. The ordinary meaning of storing waste can include the temporary storage of the waste pending transfer of the waste to another place to be used for another purpose.
The statutory text and context of cl 42, in which the word "storage" and related words are used, indicate that waste can be stored temporarily. This is most clearly shown by the words in parentheses in cl 42(1), "(including storage for transfer)". The use of the words "at any time", in relation to storage of waste on the premises, in paragraph (a), (b) and (c) in cl 42(3) also indicates that there is no time for which the waste needs to be stored and it could be temporary.
Finally, the activities of storage of waste declared by cl 42(3) to be scheduled activities do not necessarily entail the permanent storage of the types of waste specified. For example, asbestos waste, referred to in cl 42(3)(a), can only be permanently disposed of at a landfill site that may lawfully receive asbestos waste (see cl 42(4)(a) of the Waste Regulation). Hence, unless the land on which more than 5 tonnes of asbestos waste is stored is a landfill site that may lawfully receive asbestos waste, the storage of asbestos waste on the land can only ever be temporary, pending transfer of the asbestos waste to and disposal of the asbestos waste at a landfill site that may lawfully receive asbestos waste.
The trial judge also erred in construing cl 42 by reference to cl 39 of Sch 1 to the POEO Act. The application to land of waste received from off site might involve the scheduled activity in cl 39 of waste disposal by application to land. But this did not necessarily exclude the activity from also involving another scheduled activity, including the activity in cl 42 of waste storage. An activity can fall within more than one of the activities declared by Pt 1 of Sch 1 to be a scheduled activity.
For example, the activities of extracting sand and processing the extracted sand carried out, initially, on Lot 8 and, subsequently, on Lots 218 and 220, involve the two scheduled activities of "extractive industries" (in cl 19 of Sch 1) and "crushing, grinding or separating" (in cl 16 of Sch 1). So too there is no bar to the stockpiling of waste on land involving the two scheduled activities of "waste storage" (in cl 42 of Sch 1) and "waste disposal (application to land)" (in cl 39 of Sch 1).
The trial judge also erred in introducing the planning concept of the purpose for which the activity or waste is stored on the land. That purpose finds no place in the statutory text of cl 42. Waste received from off site and stored (including storage for transfer) on the land, which meets the requirements of the type and volume of waste in cl 42(3) but is not of the type or volume of waste excluded by cl 42(2), is the scheduled activity of waste storage in cl 42, regardless of the purpose for which the waste so stored might ultimately be used.
The trial judge's misconstruction of cl 42 affected her finding that the stockpiling of waste on Lot 8 was not the scheduled activity of waste storage in cl 42 of Sch 1 to the POEO Act. As the EPA submitted, on the facts found by the trial judge, the stockpiling of waste on Lot 8 necessarily fell within the statutory description of the scheduled activity of waste storage in cl 42 of Sch 1 to the POEO Act. The trial judge's conclusion to the contrary was an error of law.
Questions 6 and 7 of the submitted questions should both be answered "no".

Was the activity exempt so as to be a non-scheduled activity?

The trial judge found that the prosecutor, the EPA, bore the onus of proof to negative the application of the two exemptions granted under cll 51 and 51A of the Waste Regulation, being the "continuous process" recovered fines exemption and the excavated natural material exemption (at [331], [335], [336], [337] and [342]).
This task included proving that Grafil had not complied with all requirements of the notices of exemption, such as those requirements set out by the trial judge in [339]: at [414], [433], [434], [435], [436], [439], [452], [454], [467], [483], [500] and [507].
In finding that the prosecutor bore the onus of proof of establishing that the exemptions did not apply, the trial judge declined to follow the contrary decision of Sheahan J in Environment Protection Authority v Foxman Environmental Development Services Pty Ltd at [106]-[107].
The trial judge found that the EPA had not discharged this onus of proving that neither exemption applied (at [508]).
The trial judge considered that in construing each notice of exemption, "the strict rules that apply to [construction of] legislation and delegated legislation do not apply", but rather "a practical approach to construction" should be used. The notices of exemption "should be construed sensibly and practically as a whole and in light of the statutory scheme of which they form a part" (at [314]). The trial judge also considered that, although notices of exemption were granted under cl 51 and 51A of the Waste Regulation (made under the POEO Act), their interpretation can be informed by a different statute, the Waste Avoidance and Resource Recovery Act 2001 and the strategies made under that Act (at [314]).
The trial judge did find that Grafil had not complied with the record-keeping requirements in condition 9.1 of the "continuous process" recovered fines exemption and condition 9.2 of the excavated natural material exemption (see [440]). However, the trial judge found that non-compliance with these record-keeping requirements of the exemptions did not have the legal result that the exemptions did not apply (at [376], [442], [445] and [507]).
Finally, the trial judge found that Grafil was a "consumer" within the meaning of that term in each notice of exemption, so that the exemption applied to the activities carried out by Grafil (at [506]).
These findings of the trial judge gave rise to four submitted questions. Question 8 concerned the trial judge's finding that the EPA bore the onus of proof to negative the application of the exemptions: "8. As part of its onus of proving that an EPL was required to be held by Grafil for the alleged use of Lot 8 for disposal or storage of waste, was the Prosecutor required to prove that either of the resource recovery exemptions (the CPRF and ENM exemptions) did not obviate the need to obtain an EPL?"
Question 1 concerned the trial judge's approach to construction of the notices of exemption: "1. In construing the CPRF and ENM Exemptions and the conditions contained therein, did I, in my judgment at [383], [414]-[417], [423]-[425], [436]-[438] and [440]-[442], impermissibly rely on giving the Exemptions a 'practical' operation and/or effect at the expense of the text including the Notes of the Exemptions?"
Question 11 concerned the trial judge's finding that non-compliance with requirements specified in the notices of exemption did not cause the exemptions to not apply: "11. Was it open on the facts found by me to hold that the First Respondent's failure to comply with Condition 9.1 of the CPRF Exemption and Condition 9.2 of the ENM Exemption did not, as a matter of law, automatically preclude it from relying on the exemptions?"
Question 12 concerned the trial judge's finding that Grafil was a "consumer" for the purposes of each exemption: "12. Was it open on the facts found by me to hold that the First Respondent was a 'Consumer' for the purpose of the CPRF Exemption and the ENM Exemption?"

The question of onus of proof

The EPA submitted that the onus provision in s 144(2) of the POEO Act is a statutory proviso or exception disclosing a legislative intention to impose upon a person accused of committing an offence against s 144(1) the ultimate burden of bringing himself or herself within the statutory proviso or exception, citing Director of Public Prosecutions v United Telecasters Sydney Ltd (1990) 168 CLR 594 at 601; [1990] HCA 5.
The EPA submitted that the onus provision in s 144(2) does not accompany the description of the offence in s 144(1): see Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 258; [1990] HCA 41. It is a distinct statutory exception to the prosecutor's burden of proving every element of the offence charged: Director of Public Prosecutions v United Telecasters Sydney Ltd at 600-601. In these circumstances, the burden "lies on the party seeking to avail himself of the exception or excuse to prove the facts which bring his case within it": Dowling v Bowie (1952) 86 CLR 136 at 139; [1952] HCA 63 and see Crimes Act 1900, s 417A.
The EPA submitted that the legislative intention, provided for by s 144(2), is for an onus of proof, on the balance of probabilities (see Evidence Act 1995, s 141(2)), to be cast on an accused person in respect of any contention that there is lawful authority to use the land concerned as a waste facility. The satisfaction of exemptions properly falls within that category. The "continuous process" recovered fines exemption and the excavated natural material exemption were made in reliance on cll 51 and 51A of the Waste Regulation. Those provisions confer power on the EPA to grant exemptions of particular kinds, subject to having legislative authorisation to do so. Clause 51A applies specifically in relation to waste that is waste by virtue of paragraph (d) of the definition of waste in the Dictionary to the POEO Act and provides, pursuant to subcl (2), that the EPA may grant an exemption under cl 51 "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".
Provided their terms are complied with, exemptions made under cll 51 and 51A operate to exempt a person from the operation of provisions of the POEO Act that would otherwise apply, including the need for a licence under s 48 of the POEO Act. The availability of the exemptions is subject to establishing compliance with the conditions specified in the exemptions, involving matters which are peculiarly within the knowledge of the person seeking to invoke the exemption, including, for example, the keeping of records: see Chugg v Pacific Dunlop Ltd at 258-259.
The EPA noted that, on the trial judge's construction of the POEO Act, a prosecutor would have to prove a series of negatives including, at a general level, which resource recovery exemption, if any, an accused's activities may best satisfy but do not satisfy. By way of a more specific example, a prosecutor would have to show that a defendant (who is a "consumer" within the meaning of the exemptions) had not for a period of three years kept records of the quantity of the substance received and the suppliers' names and addresses. The terms by which the power to grant exemptions are conferred is not consistent with the legislative intention to place the onus of proof as to the satisfaction of the conditions of a resource recovery exemption on a prosecutor, referring to Chugg v Pacific Dunlop Ltd at 263. The onus would entail the additional burden of anticipating and negativing reliance on every conceivable applicable exemption (there are presently 40 exemptions) and each of the applicable conditions contained therein.
The EPA submitted that it follows that, if Grafil wished to rely on one or more exemptions for the purposes of s 144, it bore the onus of establishing the application of the exemptions on the balance of probabilities. By imposing a negative onus on the EPA to prove that neither exemption obviated the need for Grafil to obtain a licence, the trial judge misdirected herself in law.
Grafil submitted that the trial judge was correct in holding that, as a result of the prosecutor bearing the onus of proving the absence of lawful authority, the prosecutor also bore the onus of proof of establishing that the exemptions did not apply (at [335]). This is because, if the exemptions apply, there is no requirement for a licence for the activity. Section 48 of the POEO Act only requires a licence to carry out a scheduled activity. The effect of the exemptions is that the activity from which a responsible person is exempt is taken to be a non-scheduled activity for the purposes of the POEO Act. A licence is not required for a non-scheduled activity.
Grafil submitted that the absence of lawful authority in this sense and the existence of the requirement for lawful authority in the form of a licence are undoubtedly parts of the elements of the s 144(1) offence and the trial judge correctly applied Vines v Djordjevitch (1955) 91 CLR 512 at 519-520; [1955] HCA 19 and Chugg v Pacific Dunlop Ltd at 257.
Grafil drew attention to the difference in language between s 144(1), "without lawful authority", and s 144(2), "there is lawful authority". Grafil submitted that this shows that the prosecutor must prove under s 144(1) that there is a need for lawful authority before the defendant is required to prove under s 144(2) that there is lawful authority.
Grafil submitted that, consistent with the principle of legality, there would need to be clear language in the legislation before a court would adopt a construction of s 144 that would place the onus of proving the requirement for a licence on the defendant, which would include proving that there was not any exemption from a requirement for a licence.
Grafil contested the EPA's submission that placing the onus of proof on the prosecutor to establish that the defendant has not complied with all requirements of a notice of exemption, so that the exemption will not apply, would be burdensome. Grafil submitted that the EPA is able to conduct audits of waste processing facilities or avail itself of statutory provisions compelling persons to produce information (such as under s 191 of the POEO Act) in order to establish non-compliance with the requirements of a relevant notice of exemption.
I find that the trial judge erred in holding that the EPA bore the onus of proving that the exemptions granted under cll 51 and 51A of the Waste Regulation, being the "continuous process" recovered fines exemption and the excavated natural material exemption, did not apply. The trial judge has misconstrued the statutory provision of s 144 of the POEO Act.
The question of whether a prosecutor or a defendant bears the onus of proof in relation to a particular matter is to be answered by the ordinary process for statutory construction. As was noted in Director of Public Prosecutions v United Telecasters Sydney Ltd at 600-601, the general rule laid down in Woolmington v Director of Public Prosecutions [1935] AC 462 at 481, that the burden of proving every element of an offence charged rests at all times upon the prosecutor, is subject to any statutory exception.
The question in this case is whether s 144(2) of the POEO Act, which states that the defendant bears the onus of proving lawful authority to use land as a waste facility, constitutes a statutory exception.
The categorisation of a provision as part of the statement of a general rule (in relation to which the prosecutor will bear the onus of proof) or as a statement of exception (in relation to which a defendant bears the onus of proof) "reflects its meaning as ascertained by the process of statutory construction": Chugg v Pacific Dunlop Ltd at 257. The question is whether there is to be discerned, from the manner in which the proviso or exception is expressed or its subject matter, a legislative intention to impose upon the accused the ultimate burden of bringing himself within it. The legislative intention may be discerned from express words or by implication: Director of Public Prosecutions v United Telecasters Sydney Ltd at 600-601; Chugg v Pacific Dunlop Ltd at 257.
Although it is often said that "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", nevertheless there may be "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": Chugg v Pacific Dunlop Ltd at 258.
This is the situation with s 144 of the POEO Act. In one sense, the matter of lawful authority for land to be used as a waste facility is included in the description of the offence in s 144(1), but the express language used in s 144(2) indicates a legislative intention that that matter of lawful authority is an exception upon which the defendant bears the onus of proof. Liability is imposed by s 144(1) on a person who, being the owner or occupier of land, uses the land, or causes or permits the land to be used, as a waste facility without lawful authority but liability is denied by s 144(2) in a particular case if that person proves the particular matter that there is lawful authority to use the land as a waste facility. Section 144 thereby expressly places the burden of proof of the particular matter of lawful authority on the person seeking to rely on that matter.
Once the legislative intention can be discerned to impose the burden of proving that an exception applies, the person seeking to avail himself or herself of the exception bears the burden of proving the facts which bring his or her case within the exception: Dowling v Bowie at 139; Director of Public Prosecutions v United Telecasters Sydney Ltd at 601.
In this case, Grafil claimed it had lawful authority to use the land (Lot 8) as a waste facility because, by operation of the exemptions granted under cll 51 and 51A of the Waste Regulation, the use was taken to be a non-scheduled activity for which a licence under the POEO Act was not required. As the person seeking to avail itself of the exemptions, Grafil bore the onus of proving the facts which brought its case within the terms of the exemptions and thereby proving that it had lawful authority to use the land as a waste facility.
Question 8 should be answered "no".

The question of the approach to construction of the exemptions

The EPA submitted that the approach adopted by the trial judge to construction of the exemptions was in error in three ways: first, in holding that the ordinary approach to construction of legislation and delegated legislation does not apply to construing the notices of exemption granted under delegated legislation; secondly, the trial judge's "practical" approach led her to depart from the text of the notices of exemption, including the text of the requirements in section 7 with which a person must comply in order for the exemption to apply; and thirdly, in not having regard to the notes to the notices of exemption as an aid to construction of the notices of exemption.
As to the first error, the trial judge considered that because the notices of exemption granted under cll 51 and 51A of the Waste Regulation "are not drafted under the legislative drafting process of statutes or regulations" and "cannot be assumed to be drafted by a lawyer", the "strict rules that apply to legislation and delegated legislation do not apply". Instead, "a practical approach" to construction is required (at [314]). In so approaching the construction of the notices of exemption, the trial judge relied (in [317]) on Lord Reid's comments in Gill v Donald Humberstone & Co Ltd at 183, that the regulations there being considered, "ought to be construed in light of practical considerations, rather than by a meticulous comparison of the language of their various provisions, such as might be appropriate in construing sections of an Act of Parliament."
The EPA submitted that construing the notices of exemption in light of practical considerations does not "require an abandonment of basic principles of statutory construction, which require attention to the language of the instrument and its apparent purpose" or "empower the Court to embark on a wholesale rewriting of the instrument", quoting Wingecarribee Shire Council v De Angelis at [20].
In Tovir Investment Pty Ltd v Waverley Council, Leeming JA applied Lord Reid's principle from Gill v Donald Humberstone & Co Ltd in circumstances where there was ambiguity in the rigid application of a defined term in a local environmental plan. Leeming JA took that course on the basis that "some flexibility has to be given to the words used, in order to make sense of them" (at [54]). A similar approach was applied by Stone J in Australian Tea Tree Oil Research Institute v Industry Research and Development Board (2002) 124 FCR 316; [2002] FCA 1127 at [44].
The EPA submitted that, in contrast with those cases, there was no ambiguity with the terms of section 7 of each of the exemptions that required recourse to so called practical considerations, as occurred throughout the judgment. In relation to the chemical and other attribute requirements, as Sheahan J observed in Environment Protection Authority v Foxman Environmental Development Services Pty Ltd at [256], the contaminant thresholds prescribed by the exemptions are "strict". The EPA submitted that the reason for this is that the conditions set out in the exemptions are designed to minimise the risk of potential harm to the environment, human health or agriculture, as the notes to the exemptions confirm.
As to the second error, the EPA submitted that the trial judge's "practical" approach led to her departing from the language of the notices of the exemption in a number of instances. One instance concerned the chemical concentrations or other attributes of the relevant material in section 7 of each notice of exemption. Section 5 of each notice of exemption states that a responsible person who is a "consumer" is exempt from s 48 of the POEO Act in respect of the activities in cll 39 and 42 of Sch 1 to the POEO Act involving the relevant waste but only where the consumer complies with the conditions referred to in Column 3 of Table 1, which include all requirements specified in section 7 of each notice of exemption. Section 7.1 of each notice of exemption specifies the chemical or other attribute of the relevant material that must not be exceeded. Each notice of exemption states: "This Notice of Exemption is subject to the following conditions: 7.1. The chemical concentration or other attribute of the ['continuous process' recovered fines or excavated natural material, as the case may be] listed in Column 1 of Table 2 must not exceed any of the following:"
The chemical and other material property requirements are then listed in section 7 and in Table 2 to section 10. Section 10 of each notice of exemption states that the notice of exemption only applies to the relevant material where the chemical and other material property requirements in Table 2 are met.
The EPA submitted that, in circumstances where these requirements are imposed as general conditions on the application of the exemption, the result is that where these requirements have not been met, the responsible person cannot gain the benefit of the exemption.
Notwithstanding this clear language of section 7 of each notice of exemption, the trial judge considered that it was impossible for a consumer to comply with condition 7.1 as the required chemical and particle size requirements of the recovered fines in condition 10 and Table 2 Column 1 were entirely within the control of the processor. Accordingly, the trial judge concluded, on the basis of a practical reading, that condition 7.1, 10, 11 and 12 were not a consumer responsibility (at [377] and [424]). The trial judge also considered that if sampled and tested appropriately by the processors under the relevant conditions, and so certified by the processors, recovered fines would be fit for the purposes in conditions 7.2 (construction and landscaping) provided certain conditions were met by a consumer (at [423]).
The EPA submitted that the trial judge's conclusion that a consumer may enjoy the benefit of an exemption by merely relying on a statement of compliance issued by a processor (condition 8.7 of the "continuous process" recovered fines exemption) does not reflect the stated requirements of conditions 7.1, and sections 10 and 11 of both exemptions. It is also specifically inconsistent with condition 8.8 of the "continuous process" recovered fines exemption, which requires a processor to make information in relation to its testing results available to a consumer, thereby suggesting the responsibilities of the consumer extend beyond simply relying on the processor's certification.
A second instance of where the trial judge's "practical" approach led to her departing from the language of the notices of exemption is in relation to condition 7.2.7 of the "continuous process" recovered fines exemption. This condition provides that: "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: … 7.2.7 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."
Notwithstanding this language, the trial judge found that condition 7.2.7 was met in the present case even though the facts found by the trial judge did not satisfy the language of the condition.
At the time of commission of the offence, the materials had only been stockpiled and had not yet been used "for the purposes of construction or landscaping". The materials were not used to construct a private road on other land until many months after the charge period. Yet the trial judge proceeded on the basis that the stockpiling of materials to be used in the later construction of roads on other private land was sufficient.
In relation to condition 7.2.7(a), the trial judge considered 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" (at [417]), notwithstanding that the language of the condition is cast in objective terms.
In relation to condition 7.2.7(b), the trial judge found that the approval granted under Pt 3A of the EPA Act satisfied the requirement in condition 7.2.7(b) that a "development consent for the development has been granted under the relevant Environmental Planning Instrument (EPI)" (at [383], [436]-[438]), notwithstanding that a modification application for the alternate access road had yet to be granted at the time the material was accepted onto Lot 8 by Grafil and that the Pt 3A approval was not a development consent granted under an environmental planning instrument (see ss 75J(3), 75O(3) and 75R(3) of the EPA Act that then applied).
As to the third error, the EPA submitted that the trial judge discounted the utility of the notes to the notices of exemption, "consistent with the principles I have identified in [314] above" (this involved applying a practical approach and not the strict rules that apply to legislation and delegated legislation). The trial judge accepted that "the notes may provide useful background for the exemptions and inform of relevant matters such as the existence of cl 42 but that is all. They are not the source of legally binding obligations on processors, generators or consumers. To the extent the EPA's strict construction relies on the notes, they can provide no assistance" (at [319]).
The EPA submitted that the trial judge's approach to the notes was too restrictive. Insofar as context and extrinsic materials may be used to aid in the understanding of the state of law before the enactment of these instruments and to discover the mischief they were intended to remedy, the common law rules of interpretation apply: CIC Insurance Limited v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2.
The EPA submitted that the immediate context, which was available to be taken into consideration by the trial judge, included the notes which appear at the end of both exemptions. Although the notes did not form part of the terms of the exemptions, they could be used as an aid to its construction: The Ombudsman v Moroney [1983] 1 NSWLR 317 at 323-325; IMF (Australia) v Sons of Gwalia Ltd (2005) 143 FCR 274 at 290; Wong v Minster for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722 at 745.
The EPA submitted that the notes to the exemptions provide a specific statement as to their purpose, namely that their conditions were "designed to minimise the risk of potential harm to the environment, human health or agriculture, however, neither this exemption or these conditions guarantee that the environment, human health or agriculture will not be harmed." The notes to both exemptions also stated that the consumer "should assess whether the exempted material is fit for the purpose for which the material is proposed to be used and whether this will cause harm", and that the consumer "may need to seek expert technical or engineering advice."
The EPA submitted that the notes provided assistance in construing the conditions with which Grafil as the consumer was required to comply in order for the exemption to apply, including the conditions in section 7.
Grafil submitted that the trial judge, in adopting a practical approach to construction of the notices of exemption, did not abandon basic principles of statutory construction which required attention to the language of the instrument and its apparent purpose. To the contrary, by taking a practical approach, the trial judge was taking a purposive approach and was not ignoring the text of the notices of exemption.
Grafil submitted that there is no requirement or principle that in order for a practical construction of subordinate legislation, such as the exemptions made under the Waste Regulation, to be taken, there must be identified an instance of ambiguity. This qualification to the application of the principle of Lord Reid in Gill v Donald Humberstone & Co Ltd is not recognised in either Wingecarribee Shire Council v De Angelis or Tovir Investment Pty Ltd v Waverley Council.
Grafil submitted that the trial judge's approach to construction of the notices of exemption did not lead to any error of law in construction of any of the conditions with which the consumer needed to comply in order for the exemption to apply.
In relation to the trial judge's finding that the requirements of conditions 7.1 and 10 of each exemption are not a consumer responsibility (see eg [377] and [424]), Grafil noted that the trial judge recorded in [320] that: "During the hearing the EPA resiled from its position in written submissions that consumers had to test the chemical composition of material supplied by processors or generators which purported to be recovered fines or ENM, appropriately so, given the lack of any such obligation in the exemption." Grafil submitted that it is therefore inappropriate for this issue to be raised again in the submitted questions.
In relation to condition 7.2.7(a) of the "continuous process" recovered fines exemption, Grafil submitted that the trial judge was not in error in construing the reference to the application to land of waste to the minimum extent necessary on the facts as found, which included Mr Mackenzie's estimate that around 30,000 tonnes would be needed for road construction (at [416], [417]). Grafil submitted it was open to the trial judge to find that the stockpiles only contained as much as was reasonably necessary given the finding that the prosecutor had not established the volume of the stockpiles during the charge period and that at best a range from 24,000 to 44,000 tonnes had been identified (at [247]).
In relation to condition 7.2.7(b), Grafil submitted that the trial judge was correct to find that the reference in condition 7.2.7(b) to a development consent must also be taken to extend to another variety of planning approval under the EPA Act, namely a Pt 3A approval. As there is no relevant distinction between the role of the development consent and a Pt 3A approval in this context (both may authorise construction on private land for the purposes of the EPA Act), it would be an absurd and non purposive construction of condition 7.2.7(b) for a distinction to be drawn between a development consent and a Pt 3A approval.
I find that the trial judge did adopt an erroneous approach to construction of the notices of exemption and this affected the trial judge's construction of the notices of exemption in a number of respects.
At the outset, the trial judge was in error to hold that the ordinary principles of statutory construction do not apply to construction of statutory instruments made under legislation or delegated legislation. There are not different principles for construing statutory instruments to the principles for construing legislation or delegated legislation and practical considerations do not permit a rewriting of the statutory instrument to meet what the court thinks is a sensible and practical outcome.
In Wingecarribee Shire Council v De Angelis, Basten JA (with whom McColl and Payne JJA agreed) observed at [20]: "Thirdly, the respondent relied below on a proposition that a local environmental plan "ought to be construed in the light of practical considerations, rather than by a meticulous comparison of the language of various provisions, such as might be appropriate in construing sections of an Act of Parliament". That language, being sourced to Lord Reid in Gill v Donald Humberstone & Co was recently cited with approval by Leeming JA in Tovir Investments Pty Ltd v Waverley Council. Again, the point of principle should be accepted. It does not, however, require an abandonment of basic principles of statutory construction, which require attention to the language of the instrument and its apparent purpose. So called "practical considerations", none of which was identified in the present case, do not empower the Court to embark on a wholesale rewriting of the instrument."
In 4nature Incorporated v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; [2017] NSWCA 191 at [45], Basten JA (with whom Beasley P and Leeming JA agreed) further stated: "In Tovir the Court was required to construe the definition of "backpackers' accommodation", which required one to "navigate a sea of verbiage." It does not follow that there is some general principle requiring laxity or flexibility in construing delegated legislation, or statutory instruments generally. What is more, the language required to be construed in the present case was taken directly from the Planning Act, s 34B(2); it could not be said that it was "drafted less carefully than primary legislation"."
Leeming JA added at [107]: "It is a general proposition that if legal language has been used less than carefully, it may be appropriate to give rather less weight to precise textual considerations. That was the point intended to be conveyed by what I said in Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 at [54]-[55], which commenced with an observation that "the drafter has been less than fastidiously precise in his or her choice of language" and concluded with reference to the "somewhat casually drafted internal definition". There are reasons to think that delegated legislation, or, at least, some classes of delegated legislation, may be less carefully drafted than primary legislation."
The trial judge did not give the required attention to the language of each notice of exemption, but instead rewrote the language to accord with what the trial judge considered to be a sensible and practical outcome.
This error in approach to construction of the notices of exemption is firstly evident in the trial judge's "practical" reading that condition 7.1 of each notice of exemption is not a consumer responsibility (see at [377] and [424]), notwithstanding the clear language of each notice of exemption that the requirements of section 7 (including condition 7.1) must be met by the consumer in order for the exemption to apply (see sections 5.1 and 5.2 and Table 1 Column 3, which provide that "all requirements specified in sections 7 and 9 must be met" by the consumer).
This error in approach is secondly illustrated by the trial judge's substitution of a subjective test for the objective test specified in condition 7.2.7(a) of the "continuous process" recovered fines exemption. Condition 7.2 requires that, for the exemption to apply, the relevant material can only be applied to land "for the purposes of construction or landscaping", except for specified construction or landscaping works. One of the excepted construction works is the "construction of roads on private lands" (in condition 7.2.7). But to complicate matters, this exception is in turn subject to its own proviso, being paragraphs (a) to (d) in condition 7.2.7. The upshot is that the exemption will not apply to the construction of roads and private land unless the matters in paragraphs (a) and (b) or (c) or (d) are met.
The language of condition 7.2.7(a) establishes an objective criterion that must be satisfied: "the relevant waste is applied to land to the minimum extent necessary for the construction of a road". Satisfaction of this criterion depends on the facts concerning the amount of waste applied to the land and its relationship to the amount of waste needed for the construction of the road. Satisfaction of the criterion does not depend on the subjective opinion of the responsible person (such as the consumer) who applies the waste to the land for the construction of the road.
The error in approach is thirdly illustrated by the trial judge's rewriting of the plain words of condition 7.2.7(b) of the "continuous process" recovered fines exemption. This exemption will not apply to the construction of roads on private land unless "a development consent for the development has been granted under the relevant Environmental Planning Instrument (EPI)" (the words in condition 7.2.7(b)).
A development consent is granted under Pt 4 of the EPA Act. At the time the "continuous process" recovered fines exemption was made in 2010, s 76A of the EPA Act (it is now s 4.2) provided that: "If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument."
The reference in condition 7.2.7(b) is clearly a reference to such a development consent required to be obtained by an environmental planning instrument and s 76A of the EPA Act.
Up until that time, there had also been another part of the EPA Act, Pt 3A, under which a different form of approval could be granted by the Minister that authorised the carrying out of an activity (under s 75J(1) of Pt 3A of the EPA Act).
The two parts, Pt 3A and Pt 4, operated separately as alternate sources of power to approve activities and developments respectively. A development consent was defined to be a consent granted under Pt 4 and did not include an approval granted under Pt 3A of the EPA Act. Section 75R of Pt 3A of the EPA Act expressly provided that Pt 4 does not apply to or in respect of an approved project (s 75R(1)) and that environmental planning instruments (other than State environmental planning policies) do not apply to or in respect of an approved project (s 75R(3)).
The choice of language in condition 7.2.7(b) is therefore deliberate and specific. A development consent for a development granted under the relevant environmental planning instrument does not include an approval for an activity granted under Pt 3A of the EPA Act (for which there is usually no relevant environmental planning instrument).
The trial judge correctly noted that the language of condition 7.2.7(b) "makes no reference to approvals granted by the Minister". Yet the trial judge adopted a construction of condition 7.2.7(b) that is inconsistent with its language. The trial judge thought that the distinction between a development consent granted under Pt 4 of the EPA Act and an approval granted under Pt 3A of the EPA Act "lacks a rational basis". The trial judge considered that the exemption "should be read in a practical fashion. The resource recovery exemptions were not drafted by lawyers and require practical effect. The condition should be read to include approvals under Pt 3A granted by the Minister under the EPA Act" (at [438]).
The trial judge's approach is impermissible, failing to give attention and fidelity to the language of the relevant instrument, the notice of exemption. As was said in Wingecarribee Shire Council v De Angelis at [20]: "so called 'practical considerations'… do not empower the Court to embark on a wholesale rewriting of the instrument."
In light of these errors in construction, it is unnecessary to consider whether the trial judge erred in law in failing to give due regard to the notes to the notices of exemption.
Question 1 should be answered "yes".

The question of non-compliance with conditions of the exemptions

The consumer is required by conditions of the notices of exemption to keep records of the quantity of the relevant material received by the consumer and the suppliers' names and addresses for a period of three years: see condition 9.1 of the "continuous process" recovered fines exemption and condition 9.2 of the excavated natural material exemption.
The trial judge found that Grafil had not kept any records of what was delivered to Lot 8, in breach of the consumer responsibility under condition 9.1 of the "continuous process" recovered fines exemption and condition 9.2 of the excavated natural material exemption (at [440]). Nevertheless, the trial judge found that the breach of each of these conditions of the notices of exemption did not have the legal result that the exemption did not apply at all. Contravention of the record keeping requirement in the conditions did not disentitle Grafil as the consumer from relying on the exemption (at [442] and see also [376] and [507]).
The EPA submitted that the trial judge erred in finding that a failure to comply with these conditions of the notices of exemption did not cause the exemption not to apply. The EPA submitted that whether the breaches of these conditions invalidate the effect of the exemption for a consumer depends on whether there can be discerned a legislative purpose to invalidate a particular act that fails to comply with the condition: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [91] and [93].
The EPA noted that condition 5.1 of both notices of exemption states that a responsible person is exempted from the respective provisions listed in Column 2 of Table 1 "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" (emphasis added). Relevantly, by Column 3 of Table 1, a consumer under both exemptions must comply with all requirements specified in condition 9. The need for compliance with each of the requirements adumbrated in condition 9 as a precondition to the application of the exemptions is reinforced by the chapeau to condition 9 which provides that "the following conditions must be met by the consumer for this exemption to apply:…"
The EPA submitted that the discernible intention of the exemptions is that an act done in breach of condition 9 is intended to invalidate the application of the exemption. Given the practical difficulties associated with analysing composition of materials once mixed with the land or with other supplied materials, there is a clear legislative purpose behind condition 9.1 of the "continuous process" recovered fines exemption and condition 9.2 of the excavated natural material exemption relating to the need to be able accurately to identify the nature of material in a consumer's possession at its source. Given the importance of this purpose in light of the text of both exemptions, there is no reason to treat a breach of these respective provisions as not taking the activities of the consumer outside the scope of the exemption.
The EPA submitted that the trial judge was in error in drawing an analogy between the notices of exemption and a development consent. The trial judge stated that: "By analogy with a development consent, a legal instrument which travels with the land it relates to, a breach of condition does not usually nullify the consent but may give rise to other remedies or criminal action". The trial judge accepted Grafil's submission that this approach was analogous to a breach of a condition of an environment protection licence: "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" (at [374]). The trial judge considered that similarly any failure to comply with a condition of a notice of exemption by a consumer does not have the consequence that the exemption does not apply for the benefit of the consumer (at [373], [376]).
The EPA submitted that the analogy drawn by the trial judge is inapt. A development consent is impersonal and runs with the land while an environment protection licence and any exemption from the requirement to hold an environment protection licence are both personal and do not run with the land.
Grafil submitted that the trial judge was correct to find that a failure to comply with the record keeping requirements of condition 9 of the notices of exemption do not automatically disentitle Grafil, as the consumer, from relying on the exemptions. The construction that a contravention of the record keeping requirements makes the exemption inapplicable would make no practical sense or would be unworkable. Grafil posed a series of rhetorical questions: What happens if there is a gap in record keeping? Does the exemption become inapplicable only when records are not kept? What if records are kept but lost within the 3 year period?
Grafil submitted that contravention of the record keeping requirements imposed by the conditions of the notices of exemption should not have the consequence of rendering the exemption inapplicable but rather only sound in liability for the commission of an offence under cl 51(10) of the Waste Regulation. The existence of a separate offence for failure to comply with the conditions to which the exemption is subject supports Grafil's argument that a breach of a condition of an exemption is not intended to preclude reliance on the exemption.
Grafil noted that condition 9.1 of the "continuous process" recovered fines exemption is expressed in the passive voice ("records of the quantity of [relevant waste] received by the consumer…must be kept"). Grafil submitted that it was therefore entitled to rely on the processors keeping the required records.
Grafil submitted that, consistent with the principles in Project Blue Sky Inc v Australian Broadcasting Authority, there is no legislative intention discernible from the notices of exemption, the Waste Regulation under which they were granted, or the POEO Act, that a breach of a condition of an exemption leads to invalidity.
I find that the trial judge erred in finding that a failure to comply with the record keeping requirements of condition 9 of each notice of exemption did not cause the exemption to not apply.
The legal consequence of a failure to comply with the conditions of a notice of exemption granted under cll 51 and 51A of the Waste Regulation is to be ascertained by the ordinary process of statutory construction of the notice of exemption. This is not the particular process articulated in Project Blue Sky Inc v Australian Broadcasting Authority for ascertaining whether an act done in breach of a condition regulating the exercise of a statutory power is invalid: see at [91]-[93]. In this case, the relevant inquiry is not whether either notice of exemption had been granted in breach of a condition regulating the exercise of power under cll 51 and 51A of the Waste Regulation. Rather, the inquiry is what is the legal consequence of a failure to comply with a condition of the notice of exemption. That legal consequence could not be the invalidity of the notice of exemption. Rather, the potential legal consequences are, firstly, that the exemption does not apply and, secondly, criminal liability for a failure to comply with the condition of the exemption under cl 51(10) of the Waste Regulation. On a proper construction of each notice of exemption, these are the two legal consequences of a failure to comply with a condition of the notice of exemption.
The structure and language of each notice of exemption are similar. Each notice of exemption identifies in section 4 the source of power under which the exemption was granted. Clause 51 authorises the EPA to grant an exemption in relation to any person or class of persons or any activity or class of activities. Clause 51A authorises the EPA to exempt a person or class of persons from certain statutory provisions, including s 48 of the POEO Act in respect of cll 39 and 42 of Sch 1 to the POEO Act, in relation to an activity or class of activities relating to certain waste that is applied to land.
Each notice of exemption describes in section 5 the exemption that is granted. Section 5.1 operates to exempt the responsible person while section 5.2 operates to make the activity carried on by the responsible person a non-scheduled activity for the purposes of the POEO Act.
By section 5.1, the responsible person listed in Column 1 of Table 1 (either a processor or generator or a consumer) "is exempt" from the provisions listed in Column 2 of that table (which include "section 48 of the Act in respect of clauses 39 and 42 of Sch 1 to the Act") "but only in relation to activities involving the relevant waste and only where the responsible person complies with the condition referred to in Column 3 of the table" (the requirements for a consumer include "all requirements" specified in section 9, which contains the record keeping condition). Section 5.1 is therefore clear in stating that the responsible person of a consumer is "exempt" from the licensing requirement in s 48 of the POEO Act and Sch 1 to the POEO Act "only where the responsible person complies with the conditions".
By section 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 (for a consumer, the activities in cll 39 and 42 of Sch 1) "is taken to be a non-scheduled activity for the purposes of the Act." Again, section 5.2 is clear that this consequence of making the activity a non-scheduled activity only occurs "where a responsible person complies with the conditions of this Notice of Exemption".
The conditions in section 9 of each notice of exemption, which are to be met by a consumer, are prefaced by the statement: "The following conditions must be met by the consumer for this exemption to apply." These are plain words with a clear meaning: the exemption will apply only if the conditions are met by the consumer.
One of the conditions in each notice of exemption is the record keeping requirement. There is a slight difference in language between the conditions. Condition 9.1 of the "continuous process" recovered fines exemption uses the passive voice, records of the quantity of the relevant waste received by the consumer must be kept, while condition 9.2 of the excavated natural material exemption uses the active voice, the consumer must keep records of the quantity of the relevant waste received. But the meaning is the same: the consumer must keep the relevant records. This record keeping requirement is one of the conditions that "must be met by the consumer for this exemption to apply".
This language of each notice of exemption reveals a clear legislative purpose that the exemption will only apply if the responsible person (the consumer in this case) complies with the conditions referred to in Column 3 of Table 1 of each notice of exemption (which includes the conditions in section 9). A failure to comply with any of these conditions will cause the exemption not to apply.
In this case, the trial judge found that Grafil, as the consumer, did not comply with the record keeping requirements of condition 9.1 of the "continuous process" recovered fines exemption or condition 9.2 of the excavated natural material exemption. Grafil did not keep records of what material had been delivered to Lot 8 and placed in the stockpiles. The legal consequence of this failure to comply with conditions with which Grafil had to comply, in order for the exemption to apply, was that the exemption did not apply. Grafil as the consumer was not exempt from the provisions of s 48 of the POEO Act in respect of cll 39 and 42 of Sch 1 to the POEO Act and the activity involving the stockpiling of material carried out by Grafil was not taken to be a non-scheduled activity for the purposes of the POEO Act.
This legal consequence of the exemption not applying where a condition of the exemption is not met is not affected by the fact that such a failure to comply with a condition to which an exemption is subject may also have the legal consequence that the responsible person who fails to comply with a condition is guilty of an offence under cl 51(10) of the Waste Regulation. Non-compliance with a condition of an exemption can have more than one legal consequence. The two legal consequences of non-applicability of the exemption and criminal liability for not complying with a condition to which the exemption is subject are not mutually exclusive.
The trial judge also erred in drawing an analogy between a development consent granted under the EPA Act and a notice of exemption granted under cll 51 and 51A of the Waste Regulation. A development consent granted under the EPA Act is impersonal and runs with the land: it authorises the use of land (the development) but not the user of the land (the person carrying out the development). An environment protection licence issued under the POEO Act is personal and does not run with the land. A licence authorises the user of the land who is the holder of the licence to carry out a scheduled activity at premises. The effect of an exemption granted under cll 51 and 51A of the Waste Regulation is that a responsible person is exempt from the provisions of the POEO Act (including s 48 of the POEO Act in respect of cll 39 and 42 of Sch 1 to the POEO Act) that require the person to hold a licence to carry out a scheduled activity on premises and the activity is taken to be a non-scheduled activity for the purposes of the POEO Act (sections 5.1 and 5.2 of each notice of exemption). Like an environment protection licence, a notice of exemption is personal and does not run with the land. The trial judge was in error in holding that an environment protection licence and notice of exemption is analogous to a development consent.
Question 11 should be answered "no".

The question of whether Grafil is a consumer

The EPA noted that question 12 only arises if the Court finds against the EPA in relation to questions 3 to 5 relating to the statutory concept of "application to land". The EPA had submitted that Grafil's stockpiling of material on Lot 8 involved application to land of waste. The trial judge held that it did not involve application to land, but only temporary stockpiling. The EPA contended that if the trial judge be correct, then Grafil cannot be a consumer for the purpose of each notice of exemption.
Each notice of exemption defines a consumer in the same way. A consumer is "a person who applies, causes or permits the application to land of [the relevant material] within the definition of 'application to land' in accordance with the Act" (in section 6 of each notice of exemption).
The EPA noted that if Grafil had not applied to land, or caused or permitted the application to land of, the relevant waste, then it did not meet this definition and could not be exempted from the activities involving the relevant waste identified in Column 2 of Table 1 of the notice of exemption.
The EPA noted that the trial judge had made a specific finding that Grafil did not apply the materials comprising stockpiles 1 and 2 to land (at [299] and [303]). The trial judge also did not make a finding that Grafil intended to cause or permit the application of these materials to land. That Grafil and Macka's Sand Pty Ltd shared a common ownership structure and interrelated activities (at [506]) did not overcome this deficiency.
The EPA therefore submitted that, on the facts found by the trial judge, Grafil was incapable of falling within the definition of "consumer" in both notices of exemption.
Grafil submitted that the trial judge's finding that Grafil was a consumer within the meaning of that word in the notices of exemption was correct, even if the stockpiling of material on the land did not involve application to land of the materials. This was because Grafil could be seen to cause or permit the later application of the material in the stockpiles for road construction on other lands. Grafil noted that the evidence was that it had intended to apply the stockpiled material to land for road construction, but this was halted during the charge period by the EPA's stop work direction (at [434]).
Grafil submitted that even though the road was to be constructed by Macka's Sand Pty Ltd on Lot 218 (at [288]), Grafil caused or permitted the materials stockpiled on its land (Lot 8) to be used for the intended construction of the road to which the Part 3A approval applied (noting that the Pt 3A approval applied to Lot 8 as well). Grafil submitted that the finding of the trial judge at [505] and [506] that Grafil was a consumer for the purposes of the exemption was open on this evidence.
Grafil submitted that the close corporate relationship between Grafil and Macka's Sand Pty Ltd (the corporate body carrying out sand extraction on Lots 218 and 220 under the Pt 3A approval) meant that Grafil, by stockpiling material on Lot 8 for future use by Macka's Sand Pty Ltd to construct access roads to Lots 218 and 220, can be seen to cause or permit the application to land of that stockpiled material by Macka's Sand Pty Ltd using it for road construction (as the trial judge found in [503] and [506]).
I find, as the EPA noted, that question 12 is unnecessary to answer. I have found that the trial judge did err in finding that the stockpiling of materials on Lot 8 was not "application to land" for the purposes of the POEO Act. To the contrary, on the facts found by the trial judge, the stockpiling of materials necessarily fell within the statutory concept of application to land. As such, the trial judge did not err in the result in finding that Grafil was a consumer for the purposes of the notices of exemption, even if the trial judge's reasoning for reaching the result was in error.
Question 12 should be answered "unnecessary to answer".

What was the legal consequence of the presence of asbestos in the material?

The trial judge found that asbestos was present in the stockpiles, although the amount of bonded asbestos was minor and the amount of friable asbestos was very small (at [343] and [523]).
The trial judge found that the EPA had not established, beyond reasonable doubt, that the entirety of the stockpiles was asbestos waste as defined in cl 50(1) of Sch 1 to the POEO Act in the charge period (at [526]). The trial judge also found that the 5 tonne limit in cl 42(3)(a) of Sch 1 to the POEO Act for the storage of asbestos waste was not demonstrably triggered as there was no basis for concluding that there was more than 5 tonnes of material in the stockpiles containing asbestos (at [523]).
In making these findings, the trial judge adopted a construction of the definition of "asbestos waste" that allowed for a comparison of the amount of waste in the stockpiles to the volume of the stockpiles in order to determine whether the stockpiles "contained" asbestos. The trial judge considered that "whether a stockpile of material can be considered 'asbestos waste' is a matter of fact and degree… and must depend on the nature of the waste and the volume" (at [522]).
These findings of the trial judge gave rise to question 10: "10. Was it open to me to hold whether a stockpile of material can be considered "asbestos waste" (as defined by cl 50 (1) of Schedule 1 of the POEO Act to mean 'any waste that contains asbestos') is a matter of fact and degree and must depend on the nature of the waste and its volume?"
The trial judge also considered the relationship, if any, between cl 42 of the Waste Regulation and the exemptions granted under cll 51 and 51A of the Waste Regulation. The trial judge found that cl 42 of the Waste Regulation, which contains special requirements relating to asbestos waste, operates entirely separately from the resource recovery exemption provisions in cll 51 and 51A of the Waste Regulation (at [347]). The trial judge also found that the presence of asbestos in the stockpiles is irrelevant to whether the "continuing process" recovered fines exemption applies and consequently to the charge if the exemption otherwise applies.
These findings gave rise to question 9: "9. Was it open to me to hold that: (a) Clause 42 of the Waste Regulations operates entirely separately from the resource recovery exemption provisions made in cll 51 and 51A of the Waste Regulations; and (b) The presence of asbestos is irrelevant to whether the CPRF Exemption applies and consequently to the charge if the exemption otherwise applies?"

The question concerning the concept of asbestos waste

The EPA submitted that the trial judge erred in her construction of "asbestos waste" in cl 50(1) of Sch 1 to the POEO Act. This error affected the trial judge's finding that the stockpiles of materials did not contain more than 5 tonnes of asbestos waste, so as to be a scheduled activity under cl 42(3)(a) of Sch 1 to the POEO Act.
The definition of "asbestos waste" in cl 50(1) of Sch 1 to the POEO Act means "any waste that contains asbestos". The EPA submitted that the text of the definition needs to be construed giving due regard to its context and purpose, which includes the stated objects of the POEO Act in protecting, restoring and enhancing the quality of the environment in NSW (s 3(a)) and reducing risks to human health (s 3(d)). So considered, the only workable interpretation of "contains" is that it means "to have as its contents or constituent parts; comprise, include" (see Macquarie Dictionary 5th Edition).
The EPA submitted there are sound contextual reasons as to why that interpretation was intended, by contrast to the trial judge's approach of importing concepts of fact and degree. On the trial judge's construction, it is unclear whose task it is to determine the degree by which waste material can contain asbestos before it is applied to land, and the bounds by which such fact and degree may be determined. There is no guidance provided anywhere in the statutory scheme to these questions. This is particularly important given the practical difficulties associated with ascertaining the composition of a heterogeneous substance and, even more so, retrospectively once it has been applied to the land.
The EPA noted that the trial judge gave no explanation for attributing to the word "contains" anything other than its ordinary meaning. By adopting a construction that overlooked the well understood ordinary meaning of the word, and instead giving it a meaning or qualification of her own, the trial judge committed an error of law, referring to Sharp Corp of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 at 12.
The EPA noted that the trial judge's construction approach was contrary to that adopted by Sheahan J in Environment Protection Authority v Foxman Environmental Development Services Pty Ltd at [226], [227] and [231], and applied by Ward CJ in Eq in Pullen v Smedley [2017] NSWSC 1721 at [313]-[316].
Grafil submitted that it was unnecessary to answer this question as the issue of whether or not the material in the stockpiles came within the definition of "asbestos waste" in cl 50(1) of Sch 1 to the POEO Act was not relevant to the application of either exemption. For the "continuous process" recovered fines exemption, its application did not depend on whether the material in the stockpiles contained asbestos or not, as the trial judge correctly held (at [365]). For the excavated natural material exemption, although the definition of "excavated natural material" does not include material that "contains asbestos", determining this issue does not depend on the definition of "asbestos waste" in cl 50(1) of Sch 1 to the POEO Act.
Grafil further submitted that the issue of whether or not the stockpiling of the materials involved the scheduled activity of waste storage in cl 42 of Sch 1 to the POEO Act did not depend on whether there were more than 5 tonnes of "asbestos waste" stored on Lot 8 (which would result in the activity being a scheduled activity under cl 42(3)(a)). This is because it was accepted that there was more than 2,500 tonnes of material in the stockpiles, which, if the material was waste, would satisfy cl 42(3)(c) and thereby be a scheduled activity.
However, if the question needs to be answered, Grafil submitted that it was open to the trial judge to find, as she did in [522], that whether the stockpiles of material contained asbestos was a matter of fact and degree which must depend on the nature of the waste and its volume. Grafil submitted that it is relevant to compare the amount of asbestos to the volume of the stockpile. If the amount of asbestos is only minute, it is open to find that the whole of the material in the stockpile does not contain asbestos.
I find that the trial judge did err in finding that the issue of whether waste (or material) "contains asbestos" is "a matter of fact and degree… and must depend on the nature of waste and the volume". This issue needed to be addressed in order to determine, first, whether the activity of stockpiling material on Lot 8 was the scheduled activity of "waste storage" in cl 42 of Sch 1 to the POEO Act, and, secondly, whether the excavated natural material exemption applied so as to make that activity a non-scheduled activity for the purposes of the POEO Act.
As to the first, the trial judge found that the activity of stockpiling the material was not the scheduled activity of "waste storage" because she found that "the five tonne limit in cl 42(3)(a) of Sch 1 for the storage of asbestos waste was not demonstrably triggered" (at [523]). This finding depended on the trial judge's construction of the term "asbestos waste".
The defined meaning of "waste that contains asbestos" does not import degrees of inclusion. The ordinary meaning of "contained" is "to have as its contents or constituent parts; comprise; include" (Macquarie Dictionary 5th Edition). Waste can include or have as its contents or constituent parts asbestos, regardless of how much asbestos is included in the waste. Whether waste "contains" asbestos is not dependent on the absolute amount of asbestos in the waste or the relative proportion of the amount of asbestos to the volume of waste.
As the EPA submitted, this wider construction of "asbestos waste" accords with the purpose of regulation of asbestos waste, including to protect, restore and enhance the quality of the environment (s 3(a) of the POEO Act) and to reduce risk to human health (s 3(d)). Very small amounts of asbestos can pose unacceptable risks to human health and the environment. Here, the trial judge found that the total amount of asbestos in the bulk samples was 634.64 grams (at [521]). Whilst that might be "incredibly minor" in comparison to the upper estimate of 44,000 tonnes of materials in the stockpiles (at [421]), it nevertheless was sufficient to cause severe risk to human health if people were to be exposed to the asbestos.
The wider construction that waste "contains" asbestos regardless of the quantity of asbestos was adopted by Sheahan J in Environment Protection Authority v Foxman Environmental Development Services Pty Ltd at [226], [227] and [231] and Ward CJ in Eq in Pullen v Smedley at [313]-[316]. Indeed, in the latter case, Ward CJ in Eq found the waste was asbestos waste and special waste merely by containing a fragment of asbestos (at [310] and [324]). In the former case, there was more asbestos (53 pieces) but it was still a very small component of the overall waste (15,900 tonnes) (at [225], [226]). Nevertheless, Sheahan J held that the waste contained asbestos (at [226], [227] and [231]).
The same wider construction should be applied to the same phrase in the definition of "excavated natural material" in section 6 of the excavated natural material exemption. The term "excavated natural material" does not include material "that contains asbestos". The word "contains" in this definition bears the same ordinary meaning as it does in the definition of "asbestos waste". Hence, material that is otherwise excavated natural material within the definition of "excavated natural material" will not be so classified if it contains, in the sense of has as its contents or constituent parts, comprises or includes, asbestos.
The amount of asbestos that the material contains or its relative proportion to the volume of material are not relevant to whether the material contains asbestos.
Question 10 should be answered "no".

The question of the relationship with cl 42 of the Waste Regulation

The EPA contended that the trial judge erred in finding that cl 42 of the Waste Regulation operated entirely separately from the exemptions granted under cll 51 and 51A of the Waste Regulation and that the presence of asbestos in the stockpiles was irrelevant to whether the "continuous process" recovered fines exemption applied. Yet, in its submissions on submitted question 9, the EPA essentially agreed with the result of the trial judge's finding, although not with the reasoning for reaching those findings.
The EPA submitted that the exemptions granted under cll 51 and 51A of the Waste Regulation do not exempt a responsible person from the special requirements relating to asbestos waste provided for by cl 42 of the Waste Regulation. That can be accepted, however the trial judge did not hold to the contrary. Grafil was not charged with committing an offence against cl 42 of the Waste Regulation. Hence no one argued, and the trial judge did not need to decide, that the exemptions granted under cll 51 and 51A of the Waste Regulation exempted Grafil from complying with cl 42 of the Waste Regulation.
The trial judge's comment that the presence of asbestos in the stockpiles is irrelevant to whether the "continuous process" recovered fines exemption applied was legally and factually correct. If the facts so established, that exemption could apply to exempt a responsible person from the licensing requirement in s 48 of the POEO Act in respect of cll 39 and 42 of Sch 1 to the POEO Act (under section 5.1) and make the activity carried out by the responsible person a non-scheduled activity (under section 5.2). But such exemption would not affect the operation of cl 42 of the Waste Regulation, which applies to any activity involving, amongst other things, the disposal of asbestos waste, "regardless of whether the activity is required to be licensed" (cl 42(1)). The trial judge did not hold to the contrary.
Question 9 therefore proceeds on a misunderstanding of what the trial judge did and did not decide. As such, it is unnecessary to answer.
Question 9 should be answered "unnecessary to answer".

Was the activity without the lawful authority of a development consent?

The offence against s 144(1) of the POEO Act involves using land, or causing or permitting land to be used, as a waste facility "without lawful authority". The offence element of "without lawful authority" includes not only absence of lawful authority under the POEO Act, such as not holding and operating in accordance with an environment protection licence under the POEO Act, but also not obtaining and carrying out development in accordance with a development consent under the EPA Act: see Environment Protection Authority v Hardt at [97]-[100], not disturbed on appeal in Hardt v Environment Protection Authority at [42] and Environment Protection Authority v Terrace Earthmoving Pty Ltd (No 3) at [148]-[149] (all considering the element "cannot lawfully be used").
The trial judge proceeded on this basis to determine whether a development consent under the EPA Act was needed for the stockpiles of material on Lot 8 during the charge period (at [550]). The trial judge considered this issue having regard to the development consent granted in 1977 for the extraction of sand on Lot 8 and the Pt 3A approval granted in 2009 for the extraction of sand on Lots 218 and 220 and the creation of access roads across a number of lots, including Lot 8.
The trial judge found, as to the first, "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" (at [565]).
As to the second, the trial judge found that the Pt 3A approval provided for roads to be constructed during the charge period. That the road route changed after the charge period (by the first modification of the Pt 3A approval) was immaterial (at [566]). The trial judge found that the intended use of the materials in the stockpiles on Lot 8 was for the construction of the access road approved under the Pt 3A approval. The purpose and nature of the temporary stockpiling rendered it ancillary to the approved activity of road construction. "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" (at [569]).
Accordingly, the trial judge found that no failure to obtain development consent for the stockpiling of materials on Lot 8 had been established by the EPA and consequently there was no failure to obtain lawful authority (at [572]).
These findings gave rise to submitted question 15: "15. Did I erroneously conclude that the temporary stockpiling on Lot 8 was ancillary or subordinate to the development authorised by either or both of the 1977 consent and the original Pt 3A approval given that the access road actually built to Lot 218 after the charge period in accordance with the Modification of the Part 3A approval (see [35]) was in a different location to the location of the access road in the Pt 3A approval in force during the charge period?"
The EPA submitted that the trial judge erred in finding that the stockpiling of materials on Lot 8 was ancillary or subordinate to either of the 1977 development consent or the original Pt 3A approval (before it was modified) essentially because the material was used to construct not an access road approved by either of those approvals but rather the different access road approved by the first modification of the Pt 3A approval after the charge period.
The EPA noted that there was inconsistency in the evidence, and with the trial judge's findings on the evidence, as to the purpose for which the materials in the stockpiles were to be used. The materials in the stockpiles were to be used to construct either the access road approved as part of the original Pt 3A approval granted on 20 September 2009 or the different access road proposed but not yet approved by the first modification of the Pt 3A approval, which was granted on 30 September 2013, over four months after the charge period ended.
These two access roads are in different locations and cross different lands. The original Pt 3A approval access road turned off Nelson Bay Road, headed east along Lavis Lane, and continued east across a few intervening lots to reach Lot 218 at which sand extraction was approved. The modified Pt 3A approval access road turned off Nelson Bay Road further to the north than the original access road, headed south over numerous intervening lots to reach Lot 218 where sand extraction was approved. The two access roads were effectively at right angles to each other: the original access road running west to east to Lot 218 and the modified access road running north to south to Lot 218.
As a matter of fact, the material in the stockpiles on Lot 8 was used to construct the modified access road, not the original access road.
The trial judge found (at [434]), when dealing with the issue of whether condition 9.3 of the "continuous process" recovered fines exemption had been complied with, that: "But for the EPA's actions the undisputed evidence of Mr Mackenzie is that the material would have been applied to the road for access to the sand extraction facility on Lot 218 which I observed on the view during the hearing in early 2018. This evidence cannot support a finding of any failure to apply material within a reasonable time."
The road for access to the sand extraction facility on Lot 218 that the trial judge observed in early 2018 was the modified access road, not the original access road.
The EPA submitted that Grafil's evidence, of Mr Mackenzie and Mr Mostyn, Grafil's engineering expert who was called to give evidence about the construction of the access road, was consistent with Grafil having the intention to use the material in the stockpiles to construct the modified access road, not the original access road.
The EPA referred to the evidence of Mr Mackenzie who participated in two interviews with EPA officers, the first on 15 May 2013 (at [380]) and the second on 11 June 2014 (at [381]). By the time of the first interview, Macka's Sand Pty Ltd had lodged its first modification application in respect of the Pt 3A approval on 18 October 2012 so as to propose an alternate access road across Lots 4, 1, 810, 58 and 122. The alternate access road modification application was approved on 30 September 2013 (at [35]). The charge period ran from 29 October 2012 to 15 May 2013.
The EPA noted that both interviews took place after lodgement of the alternate access road modification application and, in the case of the first interview, before it was approved. In the course of that first interview, Mr Mackenzie said "we plan to build a bit of a road out of, down at Williamtown" (at [380(a)]), and "we're going to do a big long road" (at [380(b)]). In the second interview, the respondent described the purpose of the stockpiled material as being "to build a road mainly" (at [381(b)]) and estimated that about 30,000 tonnes of material was required (at [381(b)]). Seen against this background, Mr Mackenzie's reference to the road he planned to build, in terms of its location, its length and the volume of material that he estimated would be needed, was consistent with his subjective intention. Grafil's engineering expert, Mr Mostyn, was briefed consistently with Mr Mackenzie's intention relating to the proposed alternate access road (at [394]).
The EPA noted that, relying on Mr Mackenzie's evidence, it had advanced the submission in relation to condition 9.3 of the "continuous process" recovered fines exemption (which concerns the requirement to land apply the relevant waste within a reasonable period of time), summarised by the trial judge at [406], that as "no development consent was in place at the time of delivery condition 9.3 was not able to be complied with as the time frame in which a consent would be obtained was unknown".
Grafil, in turn, relied on Mr Mackenzie's evidence regarding his subjective purpose as relating to the proposed alternate access road. This is evident in Grafil's submissions on the second element of the offence and the issue of temporary stockpiling. At [290], the trial judge summarised that submission as follows: "The evidence of Mr Mackenzie and Mr Bruce Mackenzie [the father] inter alia was that the material was being temporarily stockpiled for later use for a road base for a proposed access road to the sand extraction facility at Lot 218. The clear inference arises that the material would have been so used for the road it having been built and now in use, but for the clean-up notice issued by the EPA on 15 May 2013 orally by Ms Moore and later in writing. The material was not able to be disposed of by application to land."
The evidence of Mr Mostyn, who was called in relation to that part of the third element of the offence that focused on whether an EPL was necessary, was also consistent with Mr Mackenzie's subjective purpose relating to the proposed alternate access road. Grafil's primary position, which was accepted by the trial judge, was that Mr Mackenzie's subjective intention was the relevant consideration for the purposes of condition 7.2.7(a), and that expert evidence was not relevant (see at [415]). However, Grafil relied on Mr Mostyn's evidence as supporting the objective reasonableness of this aspect of Mr Mackenzie's subjective belief (at [412]). The trial judge found that Mr Mackenzie's view as to suitability and quantity of material was confirmed by Mr Mostyn's expert evidence (at [422]). Mr Mostyn's evidence, as summarised by the trial judge, was formulated by reference to the proposed alternate access road (at [394]-[396]).
Inconsistently with this evidence, and the trial judge's earlier finding at [434], the trial judge found at [557] that "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."
The finding referred to in [557] appears to be at [435] where the trial judge found: "There was a Pt 3A approval which related to the road in force at the time of delivery of the material during the charge period (see [34] above). This provides further support for a finding that but for the EPA's actions the material would have been applied for the purposes of a road within a reasonable time, a matter the EPA has to disprove and has not."
The EPA noted that the Pt 3A approval in force at the time of delivery of the material during the charge period was the original Pt 3A approval. This approved the construction of the west to east running access road along Lavis Lane to Lot 218. But this was not the access road, referred to by the trial judge in [434], that the trial judge had observed had been constructed on the view during the hearing in early 2018. That constructed road was the north to south running access road to Lot 218 that had been approved by the first modification of the Pt 3A approval on 30 September 2013.
The EPA submitted that there was no evidence to support the trial judge's finding in [557] that Mr Mackenzie's purpose was to stockpile material for use in construction of the original access road approved by the original Pt 3A approval granted on 20 September 2009. Prior to the construction of the modified access road running north to south to Lot 218, the original access road running west to east was the only access to and from Lot 218.
The EPA noted that the charge period commenced on 29 October 2012. The EPA submitted that there was no evidence to support an inference that the access road had not been constructed during the three years after the grant of the Pt 3A approval on 20 September 2009 leading up to the charge period. This is particularly so given that condition 31 of the original Pt 3A approval required Macka's Sand Pty Ltd to 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 (at [554]).
The EPA submitted that, in these circumstances, the trial judge's findings were made in the absence of the evidence to support the findings, citing Australian Gaslight Co v The Valuer General (1940) 40 SR (NSW) 126 at 137-138.
Grafil submitted that it was open on the facts found by the trial judge for her to conclude that the stockpiling of material on Lot 8 was ancillary to the development approved by the original Pt 3A approval, which applied to Lot 8. The original Pt 3A approval approved an access road.
Grafil contested that there was no evidence to support the trial judge's finding in [557] that the material in the stockpiles was intended to be used to construct the access road approved by the original Pt 3A approval. The trial judge stated that she relied on the evidence of Mr Mackenzie and Mr Bruce Mackenzie, which the trial judge had summarised at [380]-[384]. That evidence was capable of being read as referring to an intention to use the material in the stockpiles for the original access road approved by the original Pt 3A approval. As there is some evidence capable of supporting the primary judge's factual finding, no error of law arises.
Grafil submitted that the trial judge's ultimate conclusion that the EPA had not established that there was a failure to obtain development consent was separately supported by the trial judge's finding in [565] that arguably the temporary stockpiling of the material on Lot 8 can be viewed as ancillary to the 1977 consent allowing sand extraction and related activities such as road construction.
I find that the trial judge did err in finding that the stockpiling of material on Lot 8 was ancillary or subordinate to the development authorised by the 1977 development consent or the original Pt 3A approval.
Starting with the 1977 development consent, it authorised sand extraction on Lot 8 (at [30]). Lot 8 lay to the south of but adjoining Nelson Bay Road. Lot 8 had direct access to Nelson Bay Road. Grafil had carried out sand extraction on Lot 8 since that development consent had been granted in 1977. However, on 29 October 2008, Grafil applied for approval to extract sand from different land, Lots 218 and 220. Lot 220 was a triangular shaped lot located to the south east of Lot 8. Only the north west corner of Lot 220 touched the south east corner of Lot 8. Lot 218 was some 2 to 3km to the south of Lot 8, across numerous intervening lots owned by other people. A Pt 3A approval was granted on 20 September 2009, approving the extraction of sand on Lots 218 and 220 and the creation of access roads across Lot 8 and other lots to allow access to Lot 218 (at [34]). The materials in the stockpiles were received and stored on Lot 8 in the charge period of 29 October 2012 - 15 May 2013.
There is no evidence that the material in the stockpiles was intended to be used to construct any access road on Lot 8 in accordance with the 1977 development consent. Any access road approved by the 1977 development consent was to provide access between Lot 8 and the adjoining Nelson Bay Road in order to transport sand extracted on Lot 8 to market. That road would have had to have been built after the development consent was granted in 1977 in order to carry out the sand extraction approved by that development consent. The 24,000 - 44,000 tonnes of material received and stored on Lot 8 during the charge period between 29 October 2012 and 15 May 2013 could not be used to construct an access road on Lot 8 for sand extraction that had been approved and undertaken since 1977. The trial judge's finding in [565] that "arguably" the temporary stockpiling of material in Lot 8 during the charge period "can be viewed" as ancillary to the 1977 development consent is without evidentiary support and is an error of law.
Turning to the Pt 3A approval, the trial judge's finding in [569] that the material in the stockpiles in Lot 8 during the charge period was ancillary to the activity of road construction approved by the Pt 3A approval is erroneous in law in a number of respects.
First, whilst stockpiling of material to be used in road construction can be ancillary to development approved by a development consent or an activity approved by a Pt 3A approval, there needs to be a relationship between the stockpiling and that approved development or activity. In this case, the original Pt 3A approval approved the activities of sand extraction on Lots 218 and 220, the construction of an access road across Lot 8 to Lot 220 and the construction of another access road down Lavis Lane and across other lots to Lot 218.
The access road across Lot 8, approved by the original Pt 3A approval, could only have been to access Lot 220 and not Lot 218. The corner of Lot 220 touched the corner of Lot 8 but Lot 218 was some kilometres away to the south of Lot 8 and was separated by land owned by other people. Attachment E to the trial judge's submitted question of law was a project layout plan for the Pt 3A approval. This plan showed the existing site access from Nelson Bay Road across Lot 8 toward Lot 220.
The access road to Lot 218, approved by the original Pt 3A approval, turned off Nelson Bay Road, ran down Lavis Lane and across some intervening lots to Lot 218, none of which were anywhere near Lot 8. This proposed site access to Lot 218 is shown on Attachment E.
The stockpiling of material on Lot 8 could potentially be ancillary to the approved activity of an access road across Lot 8 to Lot 220, and possibly ancillary to the extraction of sand on Lot 220 insofar as the access road enables transportation of sand extracted on Lot 220, in that material in the stockpiles on Lot 8 could be used to construct the access road across Lot 8 to Lot 220.
However, the evidence was that the material in the stockpiles on Lot 8 during the charge period was not intended to be used to construct the short access road across Lot 8 to Lot 220, but instead a different and longer access road to Lot 218. Hence, although the material in the stockpiles on Lot 8 could potentially have been ancillary to the approved development of constructing an access road across Lot 8 to Lot 220, as a matter of fact, it was not.
The stockpiling of material on Lot 8 could not be ancillary to the approved activity of the construction of the different and longer access road, across different land, to Lot 218. The use of one parcel of land (Lot 8) cannot be ancillary to the use of completely different and remote land (including Lot 227 DP 1097995, Lot 13 DP 753192 and Lot 101 DP 753192), notwithstanding that all of the parcels of land may be the subject of the Pt 3A approval. The authorities relied upon by the trial judge, Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157 and Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 at 409-410, were concerned with the situation where land is used for two purposes, both uses physically coexisting on the same land at the same time, and it was necessary to determine whether one use was ancillary to the other use or the uses were independent of each other. That was not the situation in the present case. The two uses, the stockpiling of material and the construction of an access road to Lot 218, were not being carried out on the same land. The stockpiling of material was on Lot 8 and the construction of the access road to Lot 218 was on completely separate land, kilometres away.
Secondly, the trial judge erred in law by finding, without evidentiary foundation, that the material in the stockpiles on Lot 8 was to be used in the construction of the access road to Lot 218 that was approved by the original Pt 3A approval. As the EPA submitted, the evidence, and indeed one of the trial judge's findings (at [434]), was that the material in the stockpiles on Lot 8 during the charge period was intended to be used, and later was in fact used, to construct the modified access road approved by the first modification of the Pt 3A approval on 30 September 2013, after the end of the charge period.
There was no evidence to support the trial judge's finding that the material stockpiled on Lot 8 in the charge period was to be used to construct the originally approved access road to Lot 218. The upgrading of Lavis Lane, which was part of the originally approved access road, was required by the Pt 3A approval to be undertaken within six months of commencement of quarrying operations on Lot 218. The Pt 3A approval was granted on 20 September 2009. An environment protection licence authorising sand extraction was granted on 30 November 2009. Quarrying operations began sometime thereafter. The upgrading of Lavis Lane, as part of constructing the originally approved access road, would have needed to have been undertaken within six months of commencing quarrying operations on Lot 218. This would have been some two and a half years before the start of the charge period. There was no other route by which sand extracted from Lot 218 could have been transported to market than along the originally approved access route.
The materials received on Lot 8 during the charge period could not be used to construct an access road to Lot 218 that had already been constructed some two and a half years earlier.
Thirdly, the use of Lot 8 by stockpiling materials in the charge period could not be ancillary to a use of other land for the construction of the modified access road that had not been approved at the relevant time. A use of one parcel of land cannot be ancillary to a use of other parcels of land that has yet to be approved. Only when the Pt 3A approval was modified to approve the construction of an access road across the other land could the use of Lot 8 become ancillary to the use of that other land for road construction. Such modification of the Pt 3A approval did not occur until months after the charge period.
In this respect also, the trial judge erred in holding in [566] that the fact that "the road route changed after the charge period is immaterial".
Question 15 should be answered "yes".

Was a continuing offence proved?

The trial judge considered that, in order to establish a continuing offence, the EPA had "to establish that non-exempt waste was being stored and/or disposed of by Grafil as a continuing activity in that period" (at [533]). The trial judge found that the EPA had not done so for two reasons.
First, the trial judge found that "the material deposited was not waste because of the operation of the CPRF and ENM exemptions" (at [533]). Second, the trial judge found that "there is no evidence of deposition of non-exempt waste on any day. The EPA cannot establish any regularity or continuing course of conduct with respect to the delivery to Lot 8 of material that did not comply with the resource recovery exemptions." (at [534]). Hence, the trial judge concluded: "As the evidence does not disclose a continuing course of conduct extending over the charge period, the charged offence cannot properly be categorised as a continuing offence." (at [535]).
These findings gave rise to submitted question 13: "13. Was it open on the facts found by me, in particular those at [528] - [535] of my judgment, to hold that the Appellant had not established a continuing offence?"
The EPA submitted that the trial judge asked the wrong question in determining whether the EPA had proved a continuing offence. The trial judge wrongly focused, in both reasons, on whether the EPA had proved that "non-exempt waste" was deposited. The EPA submitted that this reveals an incorrect understanding of the operation of the exemptions granted under cll 51 and 51A of the Waste Regulation.
Both the "continuous process" recovered fines exemption and the excavated natural material exemption operate, firstly, to exempt the responsible person of a consumer from the licensing provisions in s 48 of the POEO Act in respect of cll 39 and 42 to Sch 1 of the POEO Act in relation to activities involving the relevant waste, and, secondly, to make the activity a non-scheduled activity for the purposes of the POEO Act. The exemptions do not operate to exempt the relevant waste. The relevant waste remains waste regardless of whether the exemptions apply or do not apply; it does not become "exempt waste".
Hence, the trial judge was in error in drawing the distinction between "exempt waste", being waste to which the exemptions apply, and "non-exempt waste", being waste to which the exemptions do not apply. That distinction has no basis in the language of the exemptions.
The EPA submitted that by introducing a concept of "exempt waste" into the inquiry as to whether a continuing offence had been established, the trial judge wrongly focused on a matter that was outside the elements of an offence against s 144(1) of the POEO Act.
Grafil sought to support the trial judge's reference to "non-exempt waste" or "waste that did not comply with the resource recovery exemption" on the basis that the trial judge was merely using a short hand expression to convey that the activity of stockpiling of the relevant waste on the site was not exempt under the exemptions and required a licence. The trial judge's finding that the EPA had not proven that there was continuing deposition or storage of non-exempt waste should be read as a finding that the EPA had not proven that there was deposition of storage of waste which required a licence to be deposited or stored at the site with any regularity or as a continuing course of conduct.
Grafil submitted that for a continuing offence against s 144(1) to be proved, what was required to be established was not continuous deposition of waste that was lawfully able to be deposited pursuant to the exemptions, but waste that was being deposited absent of lawful authority (such deposition would require a licence as it did not come within the exemptions).
I find that the trial judge did misdirect herself in determining whether the EPA had proven a continuing offence by wrongly focusing on whether the EPA had proven deposition of "non-exempt waste". The trial judge wrongly understood the effect of an exemption applying was either to cause the material deposited not to be "waste" or to cause it to be "exempt". Conversely, if the exemption did not apply, the material deposited was "non-exempt waste".
The trial judge's choice of language in her findings was deliberate, repeated and consistent, and revealed the trial judge's misunderstanding of the operation and effect of the exemptions. In [533], the trial judge found that "the material deposited was not waste because of the operation of the CPRF and ENM exemptions" (emphasis added). In [534], the trial judge found that proof that the material deposited "was waste" was required, but that the EPA had not proven that a continuing offence was taking place "as there is no evidence of deposition of non-exempt waste on any day" (emphasis added). The trial judge also found that the EPA had not established "any regularity or continuing course of conduct with respect to the delivery to Lot 8 of material that did not comply with the resource recovery exemptions" (emphasis added).
The trial judge's understanding of the operation and effect of the exemptions is incorrect. The exemptions do not operate to make the material that has been deposited not "waste" for the purposes of the POEO Act or the Waste Regulation. Material that meets the description of the "relevant waste" in the exemption is still "waste" for the purposes of the POEO Act and the Waste Regulation, regardless of whether the exemption applies. The exemptions also do not operate to make the relevant waste "exempt waste", if the exemption applies, but "non-exempt waste" if the exemption does not apply. Rather, the exemptions operate to exempt the responsible person from the licensing provisions in s 48 in respect of the relevant clauses of Sch 1 to the POEO Act in relation to activities involving the relevant waste, so that that activity is taken to be a non-scheduled activity for the purposes of the POEO Act.
The trial judge therefore asked the wrong question in seeking to identify whether there was "evidence of deposition of non-exempt waste on any day" or "regularity or continuing course of conduct with respect to the delivery to Lot 8 of material that did not comply with the resource recovery exemptions".
The trial judge also erred in failing to address the question of whether there was a continuing offence by reason of the storage of materials in the stockpiles on Lot 8. The trial judge had identified in [533] that the elements of the s 144(1) charge against Grafil "require proof of storage and/or disposal of waste by application to land" during the charge period and that as a continuing offence, the EPA is required to establish that waste was "being stored and/or disposed of by Grafil as a continuing activity in that period." The trial judge was correct to do so. The EPA had particularised the manner of breach of the charged offence as using the premises as a waste facility "for storing and/or disposing of waste on the land".
However, when the trial judge came to determine whether the prosecutor had proven a continuing offence, the trial judge only dealt with the manner of breach of disposal of waste, although as I have found she misdirected herself in doing so. The trial judge did not address the manner of breach of storing waste on the land. This was a constructive failure to exercise jurisdiction and was an error of law.
Question 13 should be answered "no".

Were the charged offences time barred?

The trial judge found that the charged offences against s 144(1) of the POEO Act were time barred, as the prosecution was not commenced within the three year limitation period pursuant to s 216(1)(a) of the POEO Act (at [548] and [549]).
The trial judge noted that the charge period ended on 15 May 2013. As the summons was filed on 11 May 2016, the limitation period was, 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" (at [536]).
The trial judge found that "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" (at [546]). The trial judge found, however, that the EPA "cannot on the evidence before the Court demonstrate that particular loads of material delivered on particular days was non-exempt" (at [546]).
The trial judge found at [547] that: "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."
The trial judge elaborated on her last statement in [548]: "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."
These findings give rise to submitted question 14: "14. Was it open on the facts found by me in particular those at [536] - [549] of my judgment, to hold that the charged offences were time barred pursuant to s. 216(1)(a) of the POEO Act?"
The EPA submitted that the trial judge misdirected herself in three respects. First, the trial judge misdirected herself by focusing on the concept of "non-exempt waste" and requiring the EPA to prove that particular loads of material delivered on particular days was "non-exempt waste". This is the same error made by the trial judge in determining whether the EPA had proved a continuing offence.
Secondly, the EPA submitted that the trial judge misdirected herself by concluding that the EPA needed to show beyond a reasonable doubt that non-exempt waste "was received" on 11, 12, 13 or 14 May 2013 (at [546]), when the offence charged could be established by proof of continuing waste storage on the land during this period.
Thirdly, the EPA submitted that the trial judge misapplied Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79 insofar as the trial judge found that "this s 144 offence was complete (if committed at all) when the last act of tipping occurred". Given the actus reus of the present s 144(1) offence is use of the land as a waste facility for storing and or disposal of waste, the offence continued, at least insofar as concerns waste storage, for as long as the waste was stored on the land, which included the entirety of the charge period.
Grafil reiterated its submission that the trial judge did not err by referring to non-exempt waste. The trial judge found that there was no evidence of deposition of non-exempt waste on 11, 12, 13 or 14 May 2013 (at [549]).
Grafil submitted that the trial judge should be taken to have impliedly found that there was not storage of non-exempt waste over those days. Grafil submitted that "as no deposition of waste requiring an EPL (that is, non-exempt waste, being waste within the meaning of limb (d) of the statutory definition and which does not satisfy the exemptions) was proved to have occurred on any day during the charge period, neither was there any storage of any such non-exempt waste over those days".
Grafil submitted that, as the trial judge explained in [548], even if some non-exempt waste had been deposited prior to 11 May 2013, with no deposition on or after that date, the s 144(1) offence did not continue after it was complete with the last act of tipping or depositing non-exempt waste. It was not an offence that continued without end even though storage and/or disposal is what was alleged.
I find that the trial judge misdirected herself in determining whether the charged offences were time barred. First, the trial judge misdirected herself again by wrongly focusing on "non-exempt waste". The trial judge asked herself the wrong question by enquiring, in [546], whether "non-exempt material" was received on 11, 12, 13 or 14 May 2013 or whether "particular loads of material delivered on particular days was non-exempt", in [547], whether there was "no deposition or disposal of non-exempt material occurring after that date [11 May 2013]" and in [549], whether there was "no evidence of deposition of non-compliant material on 11, 12, 13 or 14 May 2013". Each of these inquiries was misdirected for the reasons I have given in answer to question 13.
Secondly, the trial judge misdirected herself in failing to address the question of whether the storage of waste in the stockpiles on Lot 8 continued over the days of 11, 12, 13 and 14 May 2013. Again, storage of waste on the land was one of the particularised manners of breach that needed to be addressed, but the trial judge did not do so. The nearest the trial judge came to dealing with the continuing storage of waste on the land was when she found in [547] that "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". But this finding is not only affected by the incorrect focus on "non-exempt waste" but also by the incorrect focus on the last act of disposing of waste and not the ongoing storage of waste that has already been disposed of on Lot 8.
Question 14 should be answered "no".

Answers to questions and order

I propose that the Court answers the submitted questions and makes the order as follows: 1. The Court answers the submitted questions as follows: The threshold question: Does s 5AE allow, or is it competent for, the appellant to have first made a request in the form MFI 1 attached as Annexure "D" on 26 July 2018, and then some months later to make a substantially different request in the form now submitted to the Court? Yes. Or has the appellant waived or otherwise abandoned the right to make a s 5AE request in those circumstances? No. Question 1: In construing the CPRF and ENM Exemptions and the conditions contained therein, did I, in my judgment at [383], [414]-[417], [423]-[425], [436]-[438] and [440]-[442], impermissibly rely on giving the Exemptions a 'practical' operation and/or effect at the expense of the text including the Notes of the Exemptions? Yes. Question 2: Did I misconstrue the POEO Act definition of "waste" in finding that, if material is "processed, recycled, re-used or recovered substance produced wholly or partly from waste" within the meaning of paragraph (d) of the definition of "waste", the material will be "waste", as defined, only if it is "applied to the land in the circumstances prescribed by the regulation", within the meaning of paragraph (d), and the other paragraphs of the definition of "waste" will not apply to the material? Yes. Question 3: Was it open on the facts found by me to hold that:(a) The words "waste disposal by application to land" in the chapeau of cl 39(1) of Schedule 1 to the POEO Act must first be found to apply before sub-cll (a), (b) and (c) can be considered; (b) Subclauses (a), (b) and (c) of cl 39(1) of Schedule 1 to the POEO Act do not qualify the words "waste disposal by application to land" in the chapeau of cl 39(1) of Schedule 1 to the POEO Act; and (c) Application to land requires more than (a material's) placement on land temporarily before its application to land for the intended purpose? No to each part of the question. Question 4: Was it open on the facts found by me to hold that the material comprising Stockpile 1 and Stockpile 2 on Lot 8 was not applied to land during the charge period within the meaning of cl 39(1) of Schedule 1 to the POEO Act, by reason of it being temporarily stockpiled pending its use as road base? No. Question 5: Was it open on the facts found by me to hold that the material comprising Stockpiles 1 and 2 on Lot 8 was not applied to land as referred to in cl 3B(1)(a) of the Waste Regulations? No. Question 6: Was it open on the facts found by me to hold that 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 (under cl 42 of Schedule 1 of the POEO Act)? No. Question 7: Was it open on the facts found by me to hold the evidence did not establish the Stockpiles 1 and 2 were being used for storage pending the transfer of material for the purposes of cl 42 of Schedule 1 of the POEO Act? No. Question 8: As part of its onus of proving that an EPL was required to be held by Grafil for the alleged use of Lot 8 for disposal or storage of waste, was the Prosecutor required to prove that either of the resource recovery exemptions (the CPRF and ENM exemptions) did not obviate the need to obtain an EPL? No. Question 9: Was it open to me to hold that: (a) Clause 42 of the Waste Regulations operates entirely separately from the resource recovery exemption provisions made in cll 51 and 51A of the Waste Regulations; and (b) The presence of asbestos is irrelevant to whether the CPRF Exemption applies and consequently to the charge if the exemption otherwise applies? Unnecessary to answer. Question 10: Was it open to me to hold whether a stockpile of material can be considered "asbestos waste" (as defined by cl 50 (1) of Schedule 1 of the POEO Act to mean 'any waste that contains asbestos') is a matter of fact and degree and must depend on the nature of the waste and its volume? No. Question 11: Was it open on the facts found by me to hold that the First Respondent's failure to comply with Condition 9.1 of the CPRF Exemption and Condition 9.2 of the ENM Exemption did not, as a matter of law, automatically preclude it from relying on the exemptions? No. Question 12: Was it open on the facts found by me to hold that the First Respondent was a 'Consumer' for the purpose of the CPRF Exemption and the ENM Exemption? Unnecessary to answer. Question 13: Was it open on the facts found by me, in particular those at [528] - [535] of my judgment, to hold that the Appellant had not established a continuing offence? No. Question 14: Was it open on the facts found by me in particular those at [536] - [549] of my judgment, to hold that the charged offences were time barred pursuant to s. 216(1)(a) of the POEO Act? No. Question 15: Did I erroneously conclude that the temporary stockpiling on Lot 8 was ancillary or subordinate to the development authorised by either or both of the 1977 consent and the original Pt 3A approval given that the access road actually built to Lot 218 after the charge period in accordance with the Modification of the Part 3A approval (see [35]) was in a different location to the location of the access road in the Pt 3A approval in force during the charge period? Yes. 1. The Land and Environment Court is to redetermine the proceedings in accordance with the answers given to the submitted questions by this Court.
DAVIES J: I agree with Preston CJ of LEC.
ADAMSON J: I have had the benefit of reading the reasons of Preston CJ of LEC in draft. I agree with the answers given by his Honour to the questions posed, including the threshold question, for the reasons given by his Honour. The reasons for my agreement that the threshold question should be answered, as to the first part, "yes" and as to the second part, "no" are as follows.
The threshold question depends on the meaning of s 5AE of the Criminal Appeal Act 2012 (NSW), which relevantly provides: "5AE Point of law stated during summary proceedings (1) At any time before the completion of proceedings before … the Land and Environment Court in its summary jurisdiction … the judge hearing the proceedings may, or if requested by the Crown must, submit any question of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination. (2) The Court of Criminal Appeal may make any such order or give any such direction to the court concerned as it thinks fit."
It is plain from the wording of s 5AE that a request by the Crown, before the completion of summary proceedings in the Land and Environment Court, that a question of law be submitted to this Court gives rise to an obligation on the judge to submit any such question to this Court.
The appellant is a statutory body representing the Crown: s 5(2) of the Protection of the Environment Administration Act 1991 (NSW) (the POEA Act).
The proceedings were heard in February and March 2018. On 28 June 2018 the primary judge published reasons, which included findings, but no orders were made, then or subsequently. On 26 July 2018 the appellant, who was relevantly the Crown, requested that the primary judge submit certain questions to this Court. These questions were subsequently amended, after submissions were made to her Honour by both parties. The primary judge submitted questions of law to this Court in a document dated 6 February 2019 which was filed on 18 February 2019. This document differed in several respects from the draft proposed by the appellant on 26 July 2018.
The obligation triggered by s 5AE is not dependent on the identification of the particular question of law: Environment Protection Authority v Land and Environment Court (2004) 134 LGERA 140 at [54] (Tobias JA, Meagher and Santow JJA agreeing). Before the question or questions can be submitted to this Court, the identification of the questions will be required, generally following consultation with the parties. As part of this process, the judge will need to be satisfied that each question submitted is a question of law: Environment Protection Authority v Land and Environment Court at [55].
As no orders were made, the proceedings in the Land and Environment Court have not been completed. Accordingly it was open to the appellant to request that her Honour submit questions of law to this Court and, once a request had been made, her Honour was obliged, after having satisfied herself that each question posed a question of law, to submit such questions.
Unlike s 5B(2) and s 5BA(2) of the Criminal Appeal Act, which provide for a time limit of "28 days after the end of the appeal proceedings, or within such longer period as the Court of Criminal Appeal may allow", no time limit is specified in s 5AE. Accordingly, there is no warrant for this Court to import a statutory gloss on s 5AE which would qualify the plain wording of the section. All that is required is that the judge submit the question of law to this Court "at any time before the completion of the proceedings". The respondent's submission that the Crown ought, in effect, be held to its first proposal, is at odds with the statutory language and inconsistent with what this Court said at [54]-[55] in Environment Protection Authority v Land and Environment Court. The statutory wording leaves no room for waiver or estoppel such as would confine the Crown to the first draft or iteration of the questions the subject of the request.
The respondents further submitted that the Crown was endeavouring to use the procedure in s 5AE of the Criminal Appeal Act as an "all grounds appeal" against an acquittal and that this amounted to an abuse of process. It relied on what this Court said in Environment Protection Authority v Land and Environment Court at [35]-[36], in which reference was made to s 5B, the stated case procedure.
I reject these submissions. First, although the primary judge made findings that the respondents were not guilty, they were not acquitted since no orders were made. As no orders were made, no appeal lies. Had an order for acquittal been made, there would have been no right of appeal in any event. Secondly, the jurisdiction invoked by the appellant is that conferred by s 5AE. There is a fundamental distinction between, on the one hand, the procedure under s 5AE as to content (questions of law requested by the Crown are to be submitted and answered) and timing (before the completion of proceedings) and, on the other, an appeal, which would lie only against conviction or penalty and could be brought only after orders had been made.
The mechanism provided for under s 5AE is that questions be asked and answered. The evident intent of s 5AE is for this Court to correct errors of law before orders, which would have the effect of completing the proceedings, are made by the judge. In this way, the legislature has enacted a procedure which is intended to have a prophylactic effect. There is nothing improper about the use of the s 5AE procedure in a case such as the present. It was used in similar circumstances in Environment Protection Authority v Terrace Earthmoving (2013) 84 NSWLR 679; [2013] NSWCCA 180. In that case, the primary judge concluded, in lengthy reasons, that he was not satisfied beyond reasonable doubt that material was "waste" within the meaning of s 143 of the POEA Act (which criminalises transportation of waste). Before orders were made to dismiss the charges, the Environment Protection Authority requested the primary judge to submit certain questions to this Court.
The procedure in s 5AE can be used, as in the present case, to prevent a finding of not guilty from resulting in an order dismissing the charges in circumstances where the finding rests on a basis which is not legally correct. It is analogous to s 5F of the Criminal Appeal Act, which entitles the Director of Public Prosecutions to appeal to this Court against an interlocutory judgment or order given or made in the proceedings, or against a ruling on admissibility if the ruling eliminates or substantially weakens the prosecution case. Neither of these provisions undermines the fundamental principle that there is no right of appeal against an acquittal. Both serve to ensure that neither an order dismissing charges against a defendant (at the conclusion of summary proceedings) nor an order for acquittal of an accused (following a trial) is made until the prosecutor has had an opportunity to have this Court determine that the legal foundation for the putative order is correct.

Amendments 05 August 2019 - Correction to legal representation. 29 May 2020 - Amendments made to correct the reference to Protection of the Environment Administration Act 1991 in [80], clarification of condition 8.7 in [239] and reference to evidence of witnesses in [361]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 May 2020

Environment Administration Act 1991(NSW)

Criminal Appeal Act 2012(NSW)

(2004) 134 LGERA 140

(2016) 217 LGERA 222

(2007) 156 LGERA 337

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