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: