Environment Protection Authority v Hardt

A substance is not precluded from being waste for the purposes of this Act merely because can be reprocessed, re-used or recycled". 13 Section 48 of the Act creates a licensing requirement for scheduled activities, premises-based. Premises-based scheduled activities are listed in Part 1 of Schedule 1 to the Act. "Waste facilities" are listed as premises-based, scheduled activities. There are a number of classes of "waste facilities" listed in Part 1 of Schedule 1. Of relevance to this case is the class of waste facility in paragraph (1)(g) as follows: "(g) landfill or application sites in environmentally sensitive areas , being landfill or application sites that are located in an environmental sensitive area described in Technical Appendix 8 of the Waste Guidelines except those : (i) that are within an environmentally sensitive area by reason only of being located within 250 metres of a residential zone or of a dwelling, school or hospital not associated with the landfill or application site and: (A) receive only coal washery rejects or slags at a rate of not more than 20,000 tonnes per year, or, (B) were in operation as at 30 June 1997 and received no more than 200 tonnes of waste per year, or (ii) that are situated on residential premises, or on land used principally for farming operations, and only if the disposal of waste is carried out on site," 14 The term "landfill or application site" is defined in the special interpretative provisions relating to waste in Division 2 of Part 3 of Schedule 1 to the Act as follows: " Landfill or application site means a waste facility used for the purpose of disposing waste to land including (but not limited to) disposal by any of the following methods: (a) spraying or spreading the waste on the land; (b) ploughing the waste into the land; (c) injecting the waste into the land; (d) mixing the waste into the land; (e) depositing the waste on the land". 15 Amongst the environmentally sensitive areas described in Technical Appendix 8 of the Waste Guidelines is the following: "a landfill site within: ▪ areas zoned under an environmental planning instrument for environmental protection purposes e.g. high conservation, scenic, scientific, cultural or heritage value". Evidence 16 On 13 July 1988, the defendant acquired by transfer the land, being Lot 72 in DP 755238 and known as 327 Manhire Road, Wyee. The land is in the local government area of Lake Macquarie. 17 On 28 October 1994, the defendant lodged a development application with Lake Macquarie City Council. The development described in the application for which consent was sought was "metal dwelling 3 bedrooms inside a metal garage workshop, storage area and dam". The application was signed by the defendant. The site plan accompanying the development application showed the location of the "new workshop" by a box and of the dam by a circle. These were both located in the middle of the lot. Manhire Road was shown (and named) as finishing at the north-east corner of the land. No access road was drawn on the site plan from Manhire Road to the new workshop or dam, or on the land at all. 18 On 9 December 1994, Lake Macquarie City Council granted development consent DA/94/00888 under the Environmental Planning and Assessment Act 1979 (NSW) to carry out development for "Rural dwelling incorporated into farm machinery shed and a dam on the land described as Lot 72 DP 755238". Conditions of the consent included: "10. A 4m wide, 150mm gravel access road shall be constructed for the full length of the road reserve from Schofield Road to the property with water tables provided. 13. Rubber tyres and building materials are not to be used in the construction of the road". 19 Schofield Road is a sealed road located just west of the Sydney to Newcastle F3 freeway on the lower lying land east of the defendant's land. Running west from Schofield Road to the eastern boundary of the defendant's land is a road reserve, gazetted in June 1989, and named Manhire Road. Manhire Road terminates at the north-eastern corner of the defendant's land. There is no road reserve on the defendant's land. 20 The approved plans do not show any access road within the defendant's land. 21 On 15 December 1994, Lake Macquarie City Council issued building permit BA/94/04126 for a workshop. 22 In about mid 2002, Mr Derwin, the sole director of Derwin Waste Management Solutions Pty Ltd trading as "Skip the tip" was advised of a property in Wyee owned by the defendant that was accepting clean fill for the purpose of building a road. Mr Derwin visited the defendant and had a conversation to the following effect: "I [Derwin] said: 'I was approached by a guy at the local servo who said that you are taking clean fill to build a road'. He [Hardt] said: 'That's correct. I have DA approval to build a road to gain access to my property. The address of the property is 327 Manhire Road, Wyee'." 23 Mr Derwin thereafter took clean fill to the defendant's land. Mr Derwin's understanding of clean fill was dirt, bricks, concrete and tiles. Mr Derwin took clean fill to the defendant's land at least once a week over a three month period. Mr Derwin collected the clean fill from a number of sites and delivered it to the defendant's land for disposal. 24 Mr Derwin states that his intention was to dispose of the clean fill at the land. He did not intend to remove or collect the fill from the land after it was deposited on the land. 25 Mr Derwin stated that no monetary transaction took place with the defendant for the disposal of clean fill to the land. 26 The defendant participated in a record of interview on 4 August 2003 with Mr Hartwell of the Environment Protection Authority ("EPA"). The record of interview was tendered in evidence. The defendant acknowledged he was the owner of the land and that he has control over what happens on the land. The defendant said he was in the process of constructing a house on the land and "also constructing road access to my premises bypassing other people's property". The defendant described why, how and when the waste was brought to the land in the following terms: "MR HARDT: In an attempt to construct a road to gain access to my property, there is a small valley which I need to get across. I've rung up various companies, excavation companies requesting if they had what would you call rock, concrete and dirt from excavation sites but no one ever seemed to be able to come up with that type of material. The property owner who owns properties that I'm using to gain access to my property, although he has given me access to go through his property, periodically he creates a bit of upset so in the last 12 months I have been endeavouring to totally bypass his property and the only type of material that I've been able to get is only the type of material that people have been able to bring up to me. I understand that a lot of it will decompose and its not solid sound building material for road construction but as its on my own property, once the actual road or the foundations of the road is constructed, then any impressions or subsidence in the fill can be filled by truck load at a time off my own property. MR HARTWELL: Can you tell me when you began taking waste material at the premises? MR HARDT: Probably about 12 months ago." 27 The defendant was asked about particular types of waste on the land. In relation to municipal and green waste and building and demolition waste, he stated: "MR HARTWELL: Why are you accepting solid waste to the premises in the form of municipal and green waste? MR HARDT: What does municipal waste mean? MR HARTWELL: The household rubbish. MR HARDT: Just as a base, just as a fill as I can't see it as being harmful. It's just solid fill, just the same type of fill that you know you take to the tip and becomes landfill there but I'm just trying to build up a base to put my road on top of it. MR HARTWELL: OK. Why are accepting inert waste in the form of building and demolition waste, used tyres, plastics, etc. MR HARDT: Again there was one or two tyres every now and again, but generally speaking there isn't tyres there. But there has been a couple. And plastics what have you would be in the form roof sheeting as such, again its just to go underneath the road." 28 The defendant described the arrangements he had with the persons owning or transporting the waste to the land: "MR HARTWELL: Can you tell me what arrangements you had with the persons owning or transporting the waste to allow them to enter the land. MR HARDT: Yes. Originally there were two people, originally one person knew a friend of mine who asked me if I needed any full and, or actually they had a discussion, they know each other, and he said I know come and talk to me as I was looking for fill, and he turned around and said that he would cover my fuel expenses for the bulldozer and what have you to bring the fill to my property and I explained to him that there was nothing to be brought that was hazardous or toxic and he said he wouldn't however that particular person, that's what you're saying, obviously there are some items there of question, I'm not particularly knowledgeable of what is toxic and what's not but to the best of my ability there wasn't anything there. Another person came to my property because I asked, or they had an ad in the paper, wanting, anybody wanting free fire wood, so rather than going through the bush looking for fire wood, I said that I would have some and they brought a truck load of fire wood up from a demolition site and that particular person at a later date asked if they could bring some more up. So I said, oh yes, bring a couple more up and they brought 4 or 5 more up then he asked me if I needed anymore fill. He said that he was going get about 1,000 tonne of dirt from an excavation site. So I said yes that was fine and then he started bringing up general demolition material, timber, rock, concrete and a bit of dirt and so forth and the arrangement with him was to, he said that he would actually construct and finish the actual road off as part of our agreement. No money changed hands. He was bringing his excavator to the site, digging soil from the bank and nearby area to sort out whatever and at the same time I was sorting out some building material and storing it on other parts of my property. MR HARTWELL: Did you receive any monetary or other payment in receiving any of the waste material on the premises? MR HARDT: No only what I just stipulated". 29 The defendant specified "Skip the tip" and Mr Derwin and "East Coast Demolitions" (as the defendant referred to that company) as two of the persons who brought waste onto the land. The defendant said that Skip the tip was there in the early states and then East Coast Demolitions started bringing ex-demolition fill. 30 The defendant described the method of depositing the waste on the land: "MR HARTWELL: The waste material appears to be landfilled into a gully at the property, can you explain how the waste is placed in that gully? MR HARDT: As the road is constructed it's normally tipped to the edge, and then East Coast use either my bulldozer or their excavator to push it over to creep across the gully and then dirt is excavated to cover it over. MR HARTWELL: So who placed the waste in the gully? MR HARDT: East Coast. MR HARTWELL: And how about Skip the Tip. MR HARDT: Well Skip the Tip puts it on the road, what's established there at the time ready to be pushed over the actual area". 31 The defendant stated that waste was placed in the gully to create a land bridge between the two points of the road along the boundary to create a road. 32 The defendant stated that 90% of the time "East Coast Demolitions" operated the machines to place the waste in the gully. However, if waste had been placed on a Friday and the defendant had time on the weekend, he would push the waste over. 33 The activities of the defendant were discovered in January 2003. On 23 January 2003, Mr Fletcher, a development compliance officer with Lake Macquarie Council, entered the defendant's land. 34 Mr Fletcher saw a cleared area of bush that jutted out from a slope. The cleared area had been constructed using materials that had been placed to raise the ground level from the floor of a gully and dirt had been placed on top of the materials. The top of the cleared was roughly level. Bulldozer caterpillar tracks were on the surface of the cleared area. The surface of the area had been compacted. Mr Fletcher was able to drive his car onto the flat area. 35 Mr Fletcher estimated the cleared area to be approximately 10 metres wide and 20 to 30 metres in length. 36 Mr Fletcher observed a bulldozer with caterpillar tracks and a white Nissan Patrol station wagon parked on the cleared area. A subsequent registration search revealed the station wagon to be registered in the name of the defendant. 37 The materials on and around the cleared area consisted mainly of pieces of cut timber, bricks, gypsum, concrete and palm tree offcuts. Mr Fletcher observed a distinct "tip type" odour similar to what he had previously smelt at local council waste facilities. 38 Mr Fletcher took photographs. He then drove back along Manhire Road to Schofields Road. He saw a truck carrying a covered load heading towards Manhire Road. He turned his vehicle and followed the truck until he observed it enter the defendant's land. A subsequent registration search revealed the truck was registered to East Coast Contracting Services Pty Ltd. 39 On 3 March 2003, Mr Fletcher conducted surveillance of traffic on Manhire Road. He saw and videotaped a loaded truck taking two separate loads to the defendant's land and returning without truckloads. The truck was registered in the name of East Coast Contracting Services Pty Ltd. 40 On 8 May 2003, two officers of the EPA, Mr Hartwell and Mr Darvall, conducted surveillance along Manhire Road. They saw two trucks with covered loads heading to the defendant's land and returning empty. The two trucks were registered to Mr Derwin. 41 On 23 May 2003, a number of officers of the EPA, including Mr Hartwell, Mr Darvall and Mr George, as well as Mr Fletcher of the Council, attended the defendant's land. They observed the cleared area and the waste. 42 The defendant arrived at the site after about 30 minutes. He spoke to Mr Hartwell and identified himself. Mr Hardt stated he owned the land. In response to a question in relation to the waste materials that were on the land, Mr Hardt said the following: "MR HARDT: I am building a road, I have council approval. MR HARTWELL: Why are you building a road next to an existing road? MR HARDT: The existing road is not on my place. MR HARTWELL: Mr Hardt is the waste on your property? MR HARDT: Yes the existing road is on the neighbour's property and the boundary is here." 43 The defendant said that he had been taking fill for about 12 months. He said he was the owner of the bulldozer and grader, although the grader was not working. He said the types of fill he has used in building the road were "concrete, bricks, rubble, building material waste". He indicated the area he had been filling was basically the cleared area. The defendant then drove away. 44 The officers of the EPA and the Council continued their inspection of the land. Mr Hartwell observed waste material in the surface of the cleared area. He saw numerous piles of waste containing a mixture of green waste from trees and plants and municipal type waste such as household garbage on the surface. 45 Mr Hartwell descended to the gully. He observed the cleared area to be raised between about 10 to 15 metres above the gully floor. From his starting point on the cleared area to the bottom end of the cleared area, Mr Hartwell estimated the distance to be approximately 120 metres. 46 Mr Hartwell observed the following waste materials on the surface of the cleared area: numerous oil containers, two chemical bottles with labelling indicating they contained pesticides, numerous car batteries and nickel cadmium batteries, a 20 litre drum with labelling indicating it contained kerosene, large amounts of sheeting and some pipes made of fibrous material that may have been asbestos waste, bricks, timber and numerous piles of municipal type waste such as toys, food waste, wrappers and other materials from household use. Mr Hartwell also observed on the sides and base of the cleared area a 205 litre drum containing unidentified substances, a number of car bodies and municipal type waste. Mr Hartwell saw piles of timber which he suspected by their green colour were Copper Chromium Arsenate treated timber. 47 Mr Darvall made similar observations. He estimated the face of the waste pile was approximately 250 metres long and up to 15 metres high and 50 metres wide at the toe of the landfill. Within the waste pile he observed municipal waste (such as food packaging, furniture, plastic toys), green waste (such as tree branches and trunks), treated timber, construction and demolition waste (such as concrete, rubble, bricks, sheets of iron and sawn timber), chemical containers, batteries and car bodies. He noted there was a distinctive odour which he associated with rotting garbage. 48 Mr George observed a variety of materials had been placed in piles on a raised levelled area. There were also materials exposed on the sides of the area. The materials included pieces of timber, concrete, tin, tree limbs and branches, small plastic containers containing residual liquids, car bodies, car batteries and a full 205 litre drum of an unknown liquid. There was also a skip bin containing general household waste including bags, bottles and packaging and old electrical equipment including a video player. 49 Mr George observed that a number of mature trees adjacent to where the materials had been placed and in amongst the materials had been pushed over. Materials had also been placed around the base of trees that were still standing, up to over 1 metre from the base of the tree. 50 Photographs and video footage were taken and were tendered. 51 On 21 July 2003, Mr Hartwell returned to the site with another officer of the EPA. The piles of waste on the surface of the cleared area that Mr Harwell observed on 23 May 2003 were no longer on the surface. The cleared area had been covered in some places with a layer of clay material. Otherwise, the quantity and type of waste material appeared unchanged. It did not appear that any further waste had arrived on the land from his inspection on 23 May 2003. 52 On 11 and 12 March 2004, Mr Beasley, a qualified surveyor engaged by the EPA, conducted a volumetric survey of the filled area on the defendant's land. Mr Hartwell accompanied Mr Beasley and two other persons from the surveyors. Mr Hartwell observed that the land appeared to be substantially the same as it had been on his inspection on 21 July 2003. Mr George of the EPA made a similar observation shortly afterwards on 29 March 2004. 53 Mr Beasley's evidence is that the area of the land covered by the fill is located along but inside the northern boundary of the defendant's land. The filled land surveyed covers a length of about 300 metres and is up to 33 metres wide. The area of land covered by fill is 4,940 m2. The volume of fill is calculated at 8,560m3. This volume includes some excavated material from within the site. The volume of excavation is calculated at 1,360m3. Net imported fill is calculated at 7,200m3. 54 Mrs Lambert (nee Means), a town planner of Lake Macquarie City Council, gave evidence in relation to the zoning and planning controls applicable to the defendant's land. The land was zoned at the relevant time 7(a) Environmental Protection (Scenic) under Lake Macquarie Environmental Plan 1984. In that zone, there were no purposes for which development could be carried out without development consent. The purposes for which development could be carried only with development consent were: "Agriculture (other than pig breeding establishments or poultry farming establishments; dams; drainage; dual occupancy - attached; dwelling houses; forestry; guest houses; home industries; hospitals; open space; picnic grounds; recreation areas; recreation establishments; retail plant nurseries; roads; roadside stalls; telecommunications facilities; tourist facilities; utility installations (other than gas holders or generating works)". 55 Any purpose of development other than the purposes expressly stated as being permissible with development consent, was prohibited. This would include "landfill", "waste management and/or recycling facility" and "junkyard". 56 Mrs Lambert also gave evidence that the only development consent issued in relation to the land is the consent issued on 9 December 1994 for a rural dwelling incorporated into farm machinery shed and a dam. The only building permit issued in relation to the land was the building permit issued on 15 December 1994 for a workshop. Elements of the offence 57 The elements of the offence against s 144 (1) of the Act are:

2. the land cannot lawfully be used as a waste facility; and

3. the defendant permits the land to be used as a waste facility. Owner or occupier of land 58 The land in question is Lot 72 in DP 755238, known as 327 Manhire Road, Wyee. The defendant acquired the land by transfer on 13 July 1988. The defendant was the owner through the charge period from 24 May 2002 to 23 May 2003 and indeed continues to be the owner of the land. The defendant did not contest this fact. I find this element to be established beyond reasonable doubt. Land cannot lawfully be used as a waste facility

Prosecutor's submissions 59 The prosecutor submits that the element of the offence which is expressed as "cannot lawfully be used" means "without such authority derived from law as was required in the circumstances". The burden of proving that the land could lawfully be used as a waste facility rests with the defendant: s 144(2) of the Act. The prosecutor submits that the land could not lawfully be used as a waste facility in either or both of two separate ways. 60 First, the prosecutor submits that the land could not lawfully be used as a waste facility under the Act because it was a waste facility which was required to be licensed under the Act, but it was not in fact licensed. 61 The prosecutor submits that the land was used for the purpose of disposing of waste to the land by the method of depositing of waste to the land. The land was a landfill site. The landfill site was within an area zoned 7(a) Environmental Protection (Scenic) under the Lake Macquarie Local Environmental Plan 1984. The landfill site was, therefore, within an area zoned under an environmental planning instrument for environmental protection purposes. It was an environmentally sensitive area within Technical Appendix 8 of the Waste Guidelines. It fell within paragraph (1)(g) of the classes of waste facility in Part 1 of Schedule 1 of the Act. The landfill site was a waste facility which was a scheduled activity. It was required to be licensed under Chapter 3 of the Act. As a matter of fact, the landfill was not licensed. 62 Secondly, the prosecutor submits that the land could not lawfully be used as a waste facility under the Environmental Planning and Assessment Act 1979. This submission gives the words in s 144(1) "cannot lawfully be used" as having an operation not restricted to the Act, but extending to any requirement for lawful authority such as under other statutes. I will explain the reason for the prosecutor's submission after I set out the manner in which the prosecutor submits the use of the land as a waste facility was without lawful authority under the Environmental Planning and Assessment Act 1979. 63 The prosecutor submits that use of land as a waste facility is "development" under the Environmental Planning and Assessment Act 1979. Because the subject property was zoned 7(a) Environment Protection (Scenic) under the Lake Macquarie Local Environmental Plan 1984, development by way of use of the premises as landfill or waste facility was prohibited under the local environmental plan and thus under s 76B of the Environmental Planning and Assessment Act unless it could be considered as a use ancillary, incidental or subservient to a permitted use. In zone 7(a), no use was permitted without development consent. 64 In addition, development or use of the land as a junkyard was prohibited. Under the local environmental plan, "junkyard" was defined (via clause 4 of the model provisions incorporated by clause 8 of the local environmental plan) as: "land used for the collection, storage, abandonment or sale of scrap metals, waste paper, rags, bottles or other scrap materials or good used for the collecting, dismantling, storage, salvaging, or abandonment or automobiles or other vehicles or the sale of parts thereof". 65 The prosecutor submits that there is no evidence that development consent for any waste facility or landfill on the site was granted by Lake Macquarie City Council under the Environmental Planning and Assessment Act. 66 To the extent that the defendant asserts that the use was permitted by reason of the development consent issued in 1994 for the construction of a rural dwelling, a farm machinery shed and a dam on the property and an access road to the property, the prosecutor submits that use of the property for the building of waste landfill or for the depositing, recycling or storage of waste was not ancillary, incidental or subservient to those uses but rather an independent use of the land and one which was prohibited by the local environmental plan. 67 To the extent that the defendant relies upon the 1994 development consent condition requiring the construction of a road, the prosecutor submits:

(a) the condition permitted the construction of an access road "to" the property - not on the property - and "for the full length" of an existing "road reserve" but there was no road reserve on the defendant's property;

(b) the depositing of the subject waste contravenes each of the consent conditions - "rubber tyres and materials are not to be used in the construction of a road"

"the external storage of any products on site shall not be permitted";

(c) it was unnecessary to fill the gully with waste in order to construct a road to the defendant's dwelling;

(d) the width of the landfill site, about 10 metres at one point, exceeded the 4m width permitted for the access road; and

(e) a quantity of the waste comprised materials inappropriate for a road due to the fact that they will decompose or collapse or were unlikely to provide a solid building foundation for road construction. 68 The prosecutor submits that the defendant breached or failed to comply with conditions of the consent. Accordingly, the prosecutor submits the landfill was not authorised by the 1994 development consent. 69 This second way in which the prosecutor submits the land could not lawfully be used as a waste facility depends, as I have noted, on construing the words "cannot lawfully be used" in s 144(1) as extending beyond the Act to other statutes. The prosecutor submits such a construction would be preferred for three sets of reasons. 70 First, the construction accords with the ordinary meaning of the words. The words "cannot lawfully be used" denote an absence of lawful authority for the prescribed use. In its ordinary meaning, to give "authority" to do something "signifies the conferring upon a person of a right to do something which, apart from the authorisation, he does not possess": Ex parte Johnson; Re MacMillan (1946) 47 SR (NSW) 16 at 18; Metal Manufacturers Ltd v Lewis (1988) 13 NSWLR 315 at 328. Applied to s 144, unless a defendant has all such authority as might be required by the law in the circumstances, then the offence is committed if the defendant permits the land to be used as a waste facility; 71 Secondly, the question of lawful authority is to be determined according to the statutory context and consideration of the sources of requisite lawful authority for what the defendant actually did. The prosecution referred to cases in relation to offences of unauthorised access to computer data as illustrative of this approach, including Rook v Maynard (No 2) (1994) 121 FLR 417 at 418-419 and Gilmour v Director of Public Prosecutions (Cth) (1995) 43 NSWLR 243 at 246, 248. 72 Thirdly, the construction accords with a purposive and contextual approach (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; s 33 of Interpretation Act 1987 (NSW)). This was the approach adopted by the High Court to the defence of "lawful purpose" for possession of a weapon contrary to what was then s 545E(2) of the Crimes Act 1900 (NSW) in Taikato v R (1996) 186 CLR 454 at 460. The prosecutor submits that construction of the words "cannot lawfully be used" so as to extend beyond the Act accords with a purposive and contextual approach for three reasons: it promotes the purpose of the Act, it avoids construing the Act by reading words into the Act and it is consistent with the context of the Act. I will summarise the prosecutor's submissions on each of these reasons. 73 The objects of the Act (s 3) are more securely achieved if land is not unlawfully used as a waste facility no matter how that unlawfulness arises. Further, the objects of the Act are more securely achieved if the authority vested with responsibility for administration of the Act is able to prosecute for unlawful use by reason of lack of requisite development consent even if the relevant local government authority is not able or does not want to enforce its planning instrument. 74 Restricting the operation of the words "cannot lawfully be used" to the Act involves reading words "under this Act" into the statute. The words do not appear in s 144. If Parliament had meant that the question of lawfulness of the use of land was to be judged by reference to what is and what is not lawful under the Act alone, it could easily have said so: Province of Bombay v Municipal Corporation of Bombay [1947] AC 58 at 63. It did not. No good reason can be advanced in this case to construe the statute as if words which could have been included in it are there when they are not. 75 The context of s 144 makes it unlikely that Parliament intended that the offence be confined to circumstances where the defendant's land could not lawfully be used as a waste facility by reason of the provisions only of the Act. Subsection 48(2) creates the offence of being the occupier of premises where scheduled activities (listed in Schedule 1 of the Act) are carried on unless that person has a licence which authorises that activity on those premises. Like the offence against s 144(1), an offence against s 48(2) is a tier 2 offence: s 114(2) of the Act. The maximum penalty for an offence against s 48(2) is the same as that for an offence against s 144(1). 76 If the source of lawful authority for use of land as a waste facility for the purposes of s 114 were confined to the Act, then in light of the offence created by s 48(2), s 144 would be otiose. The presumption is that is unlikely to have been the parliamentary intention to include a provision in an enactment which has virtually no practicable effect: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382 [71]; R v Fisher (2002) 54 NSWLR 467 at 470 [21], 473 [40], [41]. Construing s 144(1) as having operation beyond the Act would give each provision independent work to do. 77 It also makes sense of the different persons on whom the onus of proof rests for offences against ss 48(2) and 144(1). For an offence against s 48(2), the prosecutor bears the burden of proving that the defendant did not have a licence but for an offence against s 144(1), the burden of proof of the existence of lawful authority rests on the defendant by reason of s 144(2). If s 144 is read as extending to all lawful authority that was requisite in the circumstances of the case, it is understandable that Parliament would put the burden of proving lawful authority on the defendant as it cannot be expected that a prosecutor such as the EPA would be in as good a position as the defendant to prove absence of lawful authority in respect of authorisation provided by bodies other than itself. 78 Section 144 is in Part 5.6 of the Act. Another offence in that Part is transporting waste to a place that cannot lawfully be used as a waste facility for that waste. Again, there is nothing which confines the provisions of s 143 to lawful authority under the Act itself. 79 The prosecutor submits that judicial decisions on s 144 or its predecessor provision of s 64 of the Waste Minimisation and Management Act 1995 (NSW) lend support to the prosecutor's submitted construction of s 144. The cases have proceeded on the basis that the requirement for lawful authority contemplated under the section is not confined to the licensing provisions of the relevant environmental statute but extend to development consent provisions of the Environmental Planning and Assessment Act: see Environment Protection Authority v Fletcher (2001) 114 LGERA 187 at 211-212 [101]-[112], 213 [120]; Environment Protection Authority v Sorcevski [2002] NSWLEC 115 (28 May 2002); Environment Protection Authority v Nechakoski (2002) 120 LGERA 426; Environment Protection Authority v Robinson [2004] NSWLEC 629 (12 November 2004); Environment Protection Authority v Pannowitz; Environment Protection Authority v Steepleton Pty Ltd [2005] NSWLEC 175 (22 April 2005).

80 The defendant submits that the words "cannot lawfully be used" in s 144(1) of the Act are restricted in operation to the Act and cannot extend to any other statute including the Environmental Planning and Assessment Act 1979. 81 In support of this submission, the defendant cited Sydney City Council v Ke-Su Investments Pty Ltd (No. 2) (1983) 51 LGRA 186. That case held that use for a lawful purpose in the context of an existing use under the Environmental Planning and Assessment Act 1979 does not mean lawful under the general law but is to be given the limited meaning of not prohibited by planning law: see at 203, 204-205. See also Northern Territory Planning Authority v Murray Meats (NT) Pty Ltd (1983) 51 LGRA 158. 82 The defendant distinguishes the judicial decisions cited by the prosecutor. All of the cases other than Environment Protection Authority v Fletcher (2001) 114 LGERA 187, were sentencing decisions on pleas of guilty where the defendant accepted that unlawfulness extended beyond the statute under which the offence was committed. In relation to Environment Protection Authority v Fletcher, the defendant submits that there is not a detailed analysis of the issue (it is held without discussion at 211 [103] that absence of the required development consent results in absence of lawful authority). Further, the defendant submits the statutory provision the subject of the offence was s 64(1) of the Waste Minimisation and Management Act 1995 (NSW), which, although the predecessor to s 144(1) of the Act, nevertheless involves a different statutory regime. 83 The defendant's primary case was, therefore, focused on establishing that a licence under the Act was not required for the defendant's use of the land. The defendant did not contest that ordinarily use of land as a waste facility would require a licence under the Act. The defendant also did not contest that no licence has been issued under the Act authorising any use of the defendant's land as a waste facility. Rather, the defendant contests that his use of the land was as a waste facility. 84 The defendant submits that in order for a use of land to be as a waste facility, the use must fall within one of the classes of waste facility is the definition of "waste facility" in Part 1 of Schedule 1 of the Act. In this case, the prosecutor contends the relevant class of waste facility in para (1)(g). This class of waste facility is prefaced by the words "landfill or application sites". That term is defined in such a way as to require consideration of the purpose of the use, namely "a waste facility used for the purpose of disposing waste to land" and then specifies a number of ways in which the waste may be disposed of to land including by depositing the waste on the land. 85 The defendant submits that in this case the defendant's purpose of the use of the land was the construction of the road and not the disposing of waste to land. Hence, the defendant submits, the land is not a landfill or application site and hence cannot fall within class (1)(g) of waste facility. If the use of the land is not a waste facility, no licence would be required and no contravention of the Act has occurred. 86 The defendant made an alternative submission in the event that the Court were to hold that the words "cannot lawfully be used" in s 144(1) can extend to other statutes including the Environment Planning and Assessment Act 1999. The defendant accepts that it does not have a development consent to use the land as a waste facility as such. Nevertheless, the defendant submits that there is lawful authority under that Act in the form of the 1994 development consent for the rural dwelling, farm machinery shed and dam. The defendant submits a condition of that consent authorised the construction of an access road from the public road to the dwelling. The depositing of the waste and fill on the land was the means by which the defendant was constructing the road.

Finding on use of land as a waste facility under the Act 87 I will deal first with the prosecutor's submission that the land could not lawfully be used as a waste facility under the Act because it needed to be licensed and in fact it was not. I find beyond reasonable doubt that the defendant's land can not lawfully be used as a waste facility under the Act. The reasons are those given by the prosecutor and set out above. In short, I find:

(a) The materials disposed of on the defendant's land met the descriptions of "waste" in paragraphs (a) and (b) of the definition of waste in the Dictionary to the Act;

(b) The defendant's land was a "waste facility" as defined in the Dictionary to the Act used for the disposal of waste;

(c) The defendant's land was a waste facility used for the purpose of disposing of waste to land by the method of depositing the waste on the land and hence was a "landfill or application site" as defined in the special interpretative provisions relating to waste in Div 2 of Part 3 of Schedule 1 of the Act.

(d) The defendant's land was a landfill or application site located in an environmentally sensitive area, being a landfill site within an area zoned 7(a) Environment Protection (Scenic) under Lake Macquarie Local Environmental Plan 1984 and hence within an environmentally sensitive area described in Technical Appendix 8 of the Waste Guidelines and not being in any of the locations excepted in subparagraphs (i) and (ii) of paragraph (1)(g) of the definition of "waste facilities" in Part 1 of Schedule 1 of the Act.

(e) By reason of (c) and (d), the defendant's land fell within class (1)(g) of the classes of "waste facilities" defined in Part 1 of Schedule 1 of the Act.

(f) Waste facilities are scheduled activities (premised based): s 5(1) of the Act;

(g) A licence under the Act is required to carry out a scheduled activity: s 48 of the Act. 88 The defendant did not submit that the Court should not make any of these findings set out above other than the finding in (c). As to that, the defendant simply submitted that the prosecutor had not established beyond reasonable doubt that the defendant's land was a landfill or application site because it had not established that the defendant used the land "for the purpose of" disposing of waste to the land. I reject the defendant's submission. 89 "Purpose" in the context of the definition of "landfill or application site" bears it ordinary meaning. The Macquarie Dictionary defines "purpose" to include: "1. the object for which anything exists or is done, made, used, etc. 2. an intended or desired result; end or aim". 90 An object, desired result, end or aim of the defendant's actions was to dispose of waste to the land by the method of depositing the waste on the land. The disposal of waste to the land was seen to be advantageous to the defendant because it provided landfill upon which an access road could be constructed. The fact that the construction of the access road could also be seen to be an object, desired result, end or aim of the defendant's conduct does not exclude the disposal of waste being an object, desired result, end or aim. There can be multiple purposes and the purposes can be pursued simultaneously or consecutively. 91 The evidence establishes beyond reasonable doubt that the defendant actively sought and obtained waste to be disposed of by depositing it on his land. The deposition of waste on his land was his intended method of filling the land so as to be able, when the land had been filled, to construct an access road. Accordingly, the evidence establishes use of the land for the purpose of disposing waste to the land by the method of depositing the waste on the land. The land was, therefore, a landfill or application site falling within class (1)(g) of waste facility in the definition of "waste facility" in Part 1 of Schedule 1 of the Act. This makes it a scheduled activity. 92 The prosecutor has, therefore, established beyond reasonable doubt that the defendant's use of the land was a scheduled activity which required a licence. 93 By reason of s 144(2) of the Act, the onus would then be on the defendant to prove that there was a licence to carry out the scheduled activity. In fact, the defendant did not have a licence under the Act to use the land as a waste facility. The defendant did not contend to the contrary. 94 Accordingly, I find beyond reasonable doubt the second element of the offence, namely that the land can not lawfully be used as a waste facility, to be established by reason of the land being used as a waste facility, which required a licence under the Act but no such licence had in fact been issued.

Finding on use of land as a waste facility under other statutes 95 This conclusion makes it strictly unnecessary to deal with the second way in which the prosecutor submits the land could not be lawfully used as a waste facility, namely that the use was contrary to the Environmental Planning and Assessment Act 1979. This would mean that it is not necessary to determine the contested question of construction of s 144(1) of the Act that the words "cannot lawfully be used" have an operation that can extend beyond the Act to other statutes that require lawful authority such as the Environmental Planning and Assessment Act. 96 Nevertheless, as the matter has been fully argued, I will deal with the issues. 97 In my opinion, the preferable construction of the words "cannot lawfully be used" in s 144(1) is that they are not restricted to only the Act but can extend in their operation to other statutes such as the Environmental Planning and Assessment Act. My reasons are essentially those advanced by the prosecutor and set out above. In particular:

(a) There is no expressly stated limitation in s 144(1) such as "under this Act" which would restrict the operation of the words "cannot lawfully be used" to only the Act.

(b) A requirement that the use be lawful under the Act would be a requirement that the use be licensed under the Act. However, the Act elsewhere specifically establishes licensing requirements under the Act, notably in s 48 of the Act. The existence of specific licensing requirements in the Act evidences a legislative intention that when the lawful authority required is to be under the Act, it is stated by clear words such as by referring to the necessity for a licence for the activity. The absence of a reference in s 144 either to the Act or to the licensing requirements under the Act is, therefore, an indication of a legislative intention that the words "cannot lawfully be used" in s 144(1) should not be restricted to the Act or to the licensing requirements under the Act.

(c) The different persons on whom rests the onus of proof in relation to absence of lawful authority under ss 48(2) and 144(1) (namely the prosecutor and defendant respectively) evidences that s 48(2) and s 144(1) have different fields of operation. Placing the onus of proof of the existence of lawful authority on the defendant (as s 144(2) does) makes sense if the lawful authority extends beyond lawful authority (such as a licence) under the Act to other statutes about which the defendant could best be expected to know and prove.

(d) The decisions in Sydney City Council v Ke-Su Investments Pty Ltd (No. 2) (1983) 51 LGRA 186 and Northern Territory Planning Authority v Murray Meats (NT) Pty Ltd (1983) 51 LGRA 158 are of no assistance. They concern the unique planning concept of existing use which operates as an exception to planning provisions which would otherwise prohibit planning use. In that context, a reference to use for a lawful purpose would have to be limited to use for a lawful purpose under planning law. The cases provide no assistance outside of that planning context.

(e) The decisions of the Court cited by the prosecutor, including Environment Protection Authority v Fletcher (2001) 114 LGERA 187 at 211[103] and 213 [120], are supportive of the construction, although not determinative. 98 If the proper construction of the words "cannot lawfully be used" in s 144(1) is that they can extend beyond the Act, then they could include absence of lawful authority under the Environmental Planning and Assessment Act 1979. 99 I find beyond reasonable doubt that:

(a) The land is zoned 7(a) Environmental Protection (Scenic) under the Lake Macquarie Local Environmental Plan 1984.

(b) In that zone, the use of land for the purpose of a waste facility, landfill or junkyard is prohibited.

(c) The use of the land by the defendant constitutes "development" under s 4(1) of the Environmental Planning and Assessment Act 1979. (d) Having regard to the character, extent and other features of the use of the land by the defendant, the use could be classified as for the purpose of "waste facility" or "landfill". Use for either purpose is an independent use and is not subsumed into any ultimate purpose such as a road: CB Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270 at 271-272 and Baulkham Hills Shire Council v O'Donnell (1990) 60 LGRA 404 at 409-410.

(e) Development consent could not be granted to use the land for the prohibited purpose of waste facility or landfill.

(f) As a matter of fact, no development consent has been granted authorising use of the land for the purpose of waste facility or landfill.

(g) The development consent granted in 1994 does not authorise the construction of the access road in the location, by the method or to the extent employed by the defendant. (i) The developments on the defendant's land authorised by the consent are a rural dwelling incorporated into farm machinery shed and a dam. These are the developments stated in the defendant's development application and the development consent granted to that application. Consent was not sought and it was not granted to construct an access road on the land itself. Condition 10 of the consent does require the construction of an access road but the location of that road is specified as being "for the full length of the road reserve from Schofields Road to the property". There is no road reserve on the defendant's land. The road reserve is on Manhire Road which runs from the intersection with Schofields Road to the north-eastern corner of the defendant's land. (ii) Condition 13 of the consent requires that rubber tyres and building materials are not to be used in the construction of the road. The evidence establishes that the defendant has used such materials. (iii) Condition 10 also specifies the road is to be 4 metres wide but the defendant's landfill is, according to the surveyor, up to 33 metres in width and, according to observations of Mr Fletcher, 10 metres wide on the level area. I reject the defendant's submission that the condition of consent authorised the use of the defendant's land.

(h) The defendant's use of his land is, therefore, not lawful under the Lake Macquarie Local Environmental Plan 1984 and s 76B of the Environmental Planning and Assessment Act . 100 Accordingly, I also find that the defendant's land can not lawfully be used as a waste facility under the Environmental Planning and Assessment Act. This means that the second element of the offence against s 144(1) of the Act is established also by this fact. Permitted land to be used as a waste facility 101 The evidence establishes that the defendant intentionally allowed waste to be brought on to and disposed of on the land. The defendant does not contend to the contrary. The question is whether this fact is sufficient to establish that the defendant permitted the land to be used as a waste facility.

Prosecutor's submissions 102 The prosecutor submits that "permits" in s 144(1) of the Act does not require the prosecutor to prove that the defendant intended to use the land for the purpose of a waste facility; it is sufficient to establish that the defendant allowed the physical actions that constitute a waste facility such as the disposal of waste on the land. The prosecutor developed this submission as follows:

(a) The word "permits" in s 144(1) of the Act imports a mental element which is limited to knowledge or awareness. It does not extend to intention or purpose;

(b) For a person to "permit" the supply of prohibited drugs requires awareness of the act and a failure to exercise a power or right to prevent the Act: R v Jasper (2003) 139 A Crim R 329. So too with permitting the disposal of waste under former s 63 of the Waste Minimisation and Management Act 1995: see Owen v Willtara Construction Pty Ltd (1998) 103 LGERA 137 at 151 [65]. So too with permitting water pollution under the former s 16 of the Clean Waters Act 1970: see Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 at 54-55;

(c) In Alphacell Ltd v Woodward [1972] AC 824, Lord Salmon at (849B-C) said that the word "knowingly" before "permits" in the English legislation was properly otiose. Viscount Dilhorne at (840D-E) said: "whether the inclusion of that word before 'permits' makes any difference to the meaning of permits is, I think, open to doubt for, as Lord Goddard CJ said in Lomas v Peek [1947] 2 All ER 574, 575: 'If a man permits a thing to be done, it means that he gives permission for it to be done, and if a man gives permission for a thing to be done, he knows what is to be done or is being done'".

(d) On no relevant authority does the mental element imported by "permits" in a context such as s 144(1) extend to intention or purpose. To the contrary, in Blacktown City Council v Pace (2002) 121 LGERA 432 at 438 [20] Pain J said: "I do not find the 'planning' cases relied on by the defendant definitive in the context on the meaning of 'use' as a waste facility. The issue of use in the context of s 144 must be a question of nature and extent based on the circumstances of each case. The Prosecutor is not required to demonstrate the purpose of the use of the land was as a waste facility…,only that in the circumstances there was such a use".

(e) There is no warrant for reading into s 144(1) of the Act, whether by way of the word "permits" or otherwise, a requirement to prove that waste was deposited on land with the purpose of using the land as a waste facility; and

(f) The evidence leads inescapably to the inference that the defendant had acknowledged that waste was being deposited on his land and that he had the power to prevent it and that he failed to prevent it being deposited. 103 The prosecutor also addressed the defendant's submission that the purpose of the physical actions was the construction of an access road. In the circumstances that the Act does not specify the purpose of use of land as an element of the offence, a question as to whether the defendant had a purpose of building a road is irrelevant to the issue to be determined by the Court. The issue is whether the prosecutor has proved that, without lawful authority, the defendant permitted the land to be used as a waste facility. There is an abundance of evidence that the defendant permitted the activities which amounted to his land being used as a waste facility. His purpose or motive of so doing - to build a road - is not an element of the offence. Motive or purpose is relevant only to show that the defendant was desirous of obtaining waste to be deposited on his land. His motive or purpose is evidence from which commission of the elements of the offence can be inferred: De Gruchy v The Queen (2002) 211 CLR 85 at 92-93 [28], [32] and 98-99 [51]-[54], and 116-117 [119].

Defendant's submissions 104 The defendant submitted that the word "permits" imports a mental element to the offence. "Permits" means "intentionally allow": Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 at 54 [258], 55 [263]. This mental element of "permits" not only operates on the physical actions of storage, treatment, reprocessing, sorting or disposal of waste on the land - that is to say, that the accused has permitted those physical actions to have occurred on the land - but that it also requires the accused to have intended that the carrying out of the physical actions on the land be for the purpose of a waste facility. 105 The defendant submits that if the mental element imports this second requirement, then the evidence does not establish that the defendant intended that the carrying out of the physical actions of, relevantly, disposal and storage of waste on the land be for the purpose of a waste facility.

Finding on permits land to be used as a waste facility 106 In my opinion, the prosecutor's submissions on the mental element of "permits" in s 144(1) of the Act are to be preferred over the defendant's submissions. On a proper construction of s 144(1) of the Act, the mental element of permitting operates only on the physical actions of storage, treatment, processing, sorting or disposal of waste that constitute use as a waste facility. The mental element will be established on proof by the prosecutor to the requisite criminal standard of beyond reasonable doubt that the accused intentionally allowed the land, in respect of which the accused is the owner or occupier, to be used for the storage, treatment, reprocessing, sorting or disposal of waste. The concept of permitting does not import a further requirement that the accused has intentionally allowed that land to be used for the purpose of a waste facility. 107 In Blacktown City Council v Pace (2002) 121 LGERA 432 at 438 [20], Pain J rejected the same argument. Pain J held: "The prosecutor is not required to demonstrate the purpose of the use of the land was as a waste facility…, only that in the circumstances there was such a use".

I agree. 108 In this case, all the prosecutor is required to establish is that the defendant intentionally allowed the land to be used for, relevantly, the disposal of waste. The defendant's motive, such as to create a foundation of fill upon which to construct an access road, is legally irrelevant to the element of the offence of permitting the use of the land as a waste facility. Factually, however, it provides evidence from which the element of permitting the use as a waste facility, in the sense of intentionally allowing the disposal of waste on the land, can be established. 109 I find the evidence establishes beyond reasonable doubt that the defendant permitted waste to be disposed of on the land and hence permitted the use of the land as a waste facility. Defence of honest and reasonable mistake 110 The defendant submitted that as the offence against s 144(1) of the Act could be characterised as a strict liability offence, there would be available to the defendant the defence of honest and reasonable mistake (as explained in He Kaw Teh v The Queen (1985) 157 CLR 523). The belief of the defendant, it was submitted, was that he was intentionally allowing the construction of a road on his land. The defendant submitted that this belief was both honestly held and was reasonable. 111 The prosecutor submits that the belief held by the defendant cannot amount to a defence of honest and reasonable mistake for four reasons: first, any such belief of the defendant does not make the defendant's actions innocent, secondly, the belief of the defendant is as to a matter of law not fact, thirdly, the defendant did not have a positive belief, not that he was building a road (which does not by itself suffice) but that he was not permitting a set of facts to exist which amounted to his land being used as a "waste facility" under the Act and, fourthly, even if the defendant had such a positive belief, it was not reasonable. 112 I reject the defence of honest and reasonable mistake, for the reasons given by the prosecutor. 113 First, the defence of honest and reasonable mistake lies where the defendant has an honest and reasonable belief in a state of facts, which, if they existed, would make the defendant's act innocent and afford an excuse for doing what would otherwise be an offence: Proudman v Dayman (1941) 67 CLR 536 at 540. 114 If the mental element of permitting in s 144(1) of the Act is limited to intentionally allowing the physical actions of storage, treatment, reprocessing, sorting or disposal of waste on the land and does not import any requirement of intentionally allowing the land to be used for the purpose of a waste facility (as I have held above), then the holding by the defendant of a belief that the land was to be used, not for the purpose of a waste facility, but rather for another purpose of construction of a road, must be legally irrelevant. The holding of that belief, even if held honestly and reasonably, does not create a state of affairs which, if true, would make the defendant's act innocent. The belief is extraneous to the mental element of the offence. 115 Secondly, any belief that the Act imported a requirement of intentionally allowing the land to be used for the purpose of a waste facility would be one of law not fact. The defence of honest and reasonable mistake is not available for a mistake of law: Von Lieven v Stewart (1990) 21 NSWLR 52 at 66; State Rail Authority of NSW v Hunter Water Board (1992) 28 NSWLR 721 at 724. 116 Thirdly, the evidence does not establish that the defendant, turning his mind to facts that relate to the elements of the offence against s 144(1), formed a positive belief in a set of facts which would, if true, have amounted to him not using his land as a waste facility. Absent such a positive belief, the defence of honest and reasonable belief cannot be made out: State Rail Authority of NSW v Hunter Water Board (1992) 28 NSWLR 721 at 725-726. 117 Fourthly, having regard to the character, extent and other features of the use (notably, the nature, extent and volume of the waste disposed of and the methods of disposal on the land) any belief of the defendant that the land was not being used as a waste facility could not be seen to be reasonable: State Rail Authority of NSW v Hunter Water Board (1992) 28 NSWLR 721 at 726. 118 Accordingly, I reject the defence of honest and reasonable mistake in this case. Conclusion: offence proven 119 Accordingly, I find beyond reasonable doubt that each of the elements of the offence against s 144(1) of the Act is proven. Accordingly, I find the defendant guilty of the offence as charged. The matter is stood over to a date to be fixed for submissions on penalty.

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