Environment Protection Authority v HTT Huntley Heritage Pty Ltd

Environment Protection Authority v HTT Huntley Heritage Pty Ltd - [2003] NSWLEC 76 - NSWLEC 1998 case summary — Zoe

[5]

Waste 8 The first question that arises is whether the prosecutor has proved beyond reasonable doubt that waste material other than VENM or non-hazardous bulk agricultural or crop waste was accepted at the premises. 9 Ms A Kennedy is a regional operations officer in the employ of the prosecutor. She inspected the premises on 18 July 2001 and observed "stockpiles of building rubble". She stated in her affidavit sworn on 14 June 2002, that the main stockpile "… contained bricks, concrete, wood and other materials such as buckets and plastics …" and also "… PVC pipe, plastic coated wires, and metal such as concrete re-enforcement … plastic drink bottles and a tennis ball …". This observation was corroborated with video footage of the premises which Ms Kennedy filmed on another inspection on 31 July 2001 and by photographs which she took, all of which were tendered in evidence. 10 Mr B D Hulley was, during the period of the charge, a director of the defendant and its company secretary. He was on the premises at the times when Ms Kennedy made her various inspections. Mr Hulley said to Ms Kennedy that the material contained in the stockpiles was "processed" construction and demolition waste. 11 Mr J G Felicetti is an officer in the employ of the prosecutor. He analysed weighbridge dockets, delivery dockets and weighbridge data sheets produced by the defendant for the charge period. His analysis establishes, in particular, that the defendant received at the premises during the charge period a total of approximately 42,536 tonnes of material, of which approximately 87.10 per cent or 37, 052 tonnes was construction and demolition material and that the defendant was paid fees by various companies, such as Collex Pty Ltd ("Collex"), in order to accept that material. 12 Mr P A Barnes is employed by Collex as New South Wales Disposal Facilities Manager. He gave affidavit evidence as to the arrangement between Collex and the defendant whereby the former would provide the defendant with construction and demolition material. He stated that Collex takes in mixed construction and demolition waste from construction sites, and sorts the material to leave a mix of predominantly soil, dirt, bricks and concrete, called "primary sorted waste". Mr Barnes said that it is this material which was sent to the premises, where, with further processing, it would be re-usable. 13 This evidence establishes beyond reasonable doubt that construction and demolition material was accepted at the premises during the charge period. I shall refer to this material as "the C&D material". 14 The next issue is whether the C&D material falls outside the waste material permitted by condition L5.3 of the licence, that is, that whether or not it is VENM nor non-hazardous bulk agricultural or crop waste that is not putrescible. VENM is defined in div 2 of pt 3 of sch 1 to the POEO Act as being the type of waste referred to in item 1 of pt 2 of the appendix following sch 1. It is there relevantly defined as being "virgin excavated natural material (eg clay, gravel, sand, soil and rock) that is not mixed with any other waste …" and which meets other stipulated requirements. It is beyond doubt that the C&D material does not fall within this definition. It is also beyond doubt that the C&D material is not agricultural or crop waste. It is not waste material, therefore, which is permitted by condition L 5.3. 15 So much is really accepted by the defendant, but its claim is that the C&D material is not "waste" within the meaning of that term in the POEO Act, with the consequence that its acceptance at the premises is not in breach of condition L5.3. 16 The term "waste" is defined in the dictionary to the POEO Act as follows: 'waste' (unless specially defined) 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, reprocessing, recovery or purification by a separate operation from that which produced the substance, or (d) any substance prescribed by the regulations to be waste for the purposes of this Act,. A substance is not precluded from being waste for the purposes of this Act merely because it can be reprocessed, re-used or recycled.

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It is to be noted that the dictionary defines "substance" as including matter or thing. 17 The prosecutor claims that the C&D material falls within sub-cl (b) or sub-cl (c) of the definition, in that it is comprised of discarded, rejected, unwanted or surplus substance. Accordingly, so the prosecutor claims, it was waste accepted at the premises outside the limit imposed by condition L5.3. 18 The defendant counters this claim by contending that, from the defendant's perspective, the C&D material was neither surplus nor unwanted. It was, instead, engineering material, required for the rehabilitation of the premises. Mr Hale SC, appearing for the defendant, submitted that the definition must be applied from the vantage point of the defendant. In other words "one man's trash is another man's treasure". In putting this submission, Mr Hale cited John Clyde Owen v Willtara Construction Pty Ltd (Bignold J, NSWLEC, 3 September 1998, unreported). In that case, the defendant had stockpiled excavated soil from the site with the intention of redeploying it in backfilling and other operations involved in carrying out the development. One of the issues for determination was whether, pursuant to a statutory definition identical to the definition of "waste" in the POEO Act, the stockpiled material was "waste". Bignold J held that the stockpiled material was not "discarded, rejected, unwanted, surplus or abandoned" in the circumstances of the case for the reason that it was intended that it be redeployed. 19 However, Owen v Willtara is distinguishable. There the stockpiled material was produced on site and put aside for later deployment. Here the C&D material was unwanted or surplus in the hands of its owners, such as Collex, and additionally they paid a fee to the defendant to receive the C&D material at the premises. 20 In my opinion, the C&D material is "waste" within the meaning of the POEO Act because it falls within the description in sub-cl (c) of the definition. There is no doubt that the C&D material was "waste" at its source. Mr Hulley called it "C&D waste", Mr Barnes called it "primary sorted waste" and Ms Kennedy called it "building rubble". It was unwanted or surplus material from construction or demolition sites. And it came as waste into the hands of the licensed waste facilities, such as Collex, which ultimately delivered it, after initial processing and payment of a fee, to the defendant. The question is - was it still "waste" at the time it was accepted by the defendant at the premises? I do not accept that the C&D material changed its character upon its acceptance at the premises simply because the defendant intended to re-process it and use it for rehabilitation of the premises. That follows, I think, for two reasons. The first is the explicit reference in the definition to the fact that "[a] substance is not precluded from being waste for the purposes of this Act merely because it can be reprocessed, re-used or recycled". Its character as waste remained even though it was material which was capable of being reprocessed, re-used or recycled. Secondly, the defendant's intention to use it did not change its character as waste by reason of the express words of sub-cl (c) of the definition - that is, it falls within the description in sub-cl (c) even if it is "… intended … for … reprocessing … by a separate operation from that which produced the substance". 21 For these reasons, I am satisfied beyond reasonable doubt that the C&D material accepted at the premises was "waste" within the meaning of the POEO Act. However that in itself does not conclusively establish the charge against the defendant, because the defendant claims that provisions of the licence apart from condition L5.3 permitted the acceptance of the C&D material.

[8]

Infrastructure works described within the MRP require that on site materials, and imported materials be processed generally as above to provide roadbases, drainage media, feedstock for concrete structures (such as retaining walls, energy dissipaters, kerbing, channeling) and hardstand. The beneficial reuse of such materials is preferred to quarrying materials from depleting natural resources … 24 In order to consider this defence, I turn first to the statutory context. Schedule 1 to the POEO Act lists activities for which a licence is required. Those activities are referred to as "scheduled activities". One of the activities so listed is "Crushing, grinding or separating works". It is defined as follows: (1) process materials including sand, gravel, rock, minerals, slag, road base or demolition material (such as concrete, bricks, tiles, asphaltic material, metal or timber) by crushing, grinding or separating into different sizes, and (2) have an intended processing capacity of more than 150 tonnes per day or 30,000 tonnes per year. 25 Section 48(2) provides that it is an offence for a person to carry on a scheduled activity at any premises unless that person holds a licence authorising that activity. Section 57 provides for the payment of an annual licence fee determined by the regulations. The Protection of the Environment Operations (General) Regulation 1998 ("the Regulation") is concerned, amongst other things, with licence fees, which are, according to cl 9, determined according to the activity carried out. For the purpose of determining licence fees, activities are classified according to an index in sch 1 of the Regulation, and activities so classified are described by name and number. The classification of "crushing, grinding or separating works" is numbered 32. 26 I turn next to the licence itself. Part 1 of the licence is headed "Administrative conditions". Clause A1 of pt 1 is headed "What the licence authorises and regulates". That heading is followed by cl A1.2 which is as follows: A1.2 This licence authorises the carrying out of the scheduled activities listed below at the premises specified in A2. The activities are listed according to their scheduled activity classification, fee - based activity classification and the scale of operation.

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Coal Mining (26) 50000- -2000000 T produced Composting and Related 50000 - T received Reprocessing or Treatment (29) Crushing, Grinding or 500000 - 2000000 T processed Separating Works (32) 27 Clause A3 of the licence is headed "Other activities". Clause A3.1 provides that "[t]his licence applies to all other activities carried on at the premises, including …" and there follows a list of three activities, including "Crushing, Grinding or Separating Works". 28 Clauses A1.2 and A3.1 of the licence present something of a conundrum, so far as concerns "Crushing, Grinding or Separating Works". Those works are not listed under the heading "Scheduled Activity". They are, however, listed under the heading "Fee Based Activity" and they are also listed as other activities in cl A1.3. Does that mean that "Crushing, Grinding or Separating Works" are a scheduled activity which is permitted by the licence, or, instead, are they simply one of the "other activities" to which the licence applies? As I will endeavour to explain, I think that the latter reflects the proper interpretation of the licence, but that, in the ultimate, the question is not significant, because the limit conditions of the licence, including L5.3, apply to "Crushing, Grinding or Separating Works" as one of the other activities to which the licence applies. 29 The conundrum is solved by having regard to the licence application lodged by the defendant. Clause A4 of the licence is headed "Information supplied to the EPA". Clause A4.1 relevantly applies as follows: A4.1 Works and activities must be carried out in accordance with the proposal contained in the licence application, except as expressly provided by a condition of this licence. 30 Clause A4.1 goes on to define the expression "licence application" by reference, relevantly, to "… the licence information form provided by the licensee to the EPA to assist the EPA in connection with the issuing of this licence". 31 The defendant prepared a document called "Licence Application Form - premises" on 18 May 2000. It is not expressed to be a "licence information form" but it may be taken to be the licence application referred to in cl A4.1 because it contains the information required to apply for and obtain a licence in respect of premises. I will refer to it as "the licence application". The effect of cl A4.1 is to incorporate the licence application in the licence itself (cf Auburn Municipal Council v Szabo and Anor (1971) 67 LGRA 427) and therefore regard may be had to the contents of the licence application in construing the licence itself. 32 When one turns to the licence application, one sees that it contains various sections. Section 7 requires the applicant for the licence to write down short descriptions and corresponding numbers of all the categories of scheduled activity conducted or proposed to be conducted. (For this purpose, section 6 refers the applicant to the EPA's Guide to Licensing). In response to this invitation, the defendant attached a schedule which, by reference to the descriptions and corresponding numbers, listed what in effect were the scheduled activities of "Coal Mines, Coal Works, Composting and Related Reprocessings". Accordingly, it sought and was granted a licence in respect of these scheduled activities.

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33 Clause 8 of the licence application referred to "[o]ther activities conducted at premises (ancillary activities)". It invited the applicant for the licence to write down activities which fitted the description in part (1) of the scheduled activity but not part (2). It gave an example: "… you may also carry on a crushing, grinding and separating works but this may not require a licence because its processing capacity is below the volumes specified …" in part (2) of the definition. In response to this invitation, the defendant attached a further schedule (part of which I have quoted in par 23 above), listing three activities, including "Crushing, grinding or separating works", and these three activities were listed in cl A3.1 of the licence. 34 I conclude, from this analysis, that the scheduled activities which were authorised by the licence did not include "crushing, grinding or separating" as that term is defined in sch 1 to the POEO Act, but that the activity of "crushing, grinding or separating" as that term is described in par (1) of the definition in sch 1 was another activity to which the licence applied. 35 However, ultimately it is of no significance whether "Crushing, grinding or separating works" were, for the purpose of the licence, a scheduled activity permitted at the premises, or one of the other activities to which the licence applied. That is because cl A3.1 expressly provides that "… this licence applies to all other activities carried on at the premises …". In my opinion, the clear and unambiguous intention of this provision is that the conduct of the "other activities" was also to be regulated by the terms of the licence. One of those terms is condition L5.3. Hence there was no separate stream of material contemplated by the reference to "crushing, grinding or separating" in the licence. Rather, the limit imposed by condition L5.3 applied to all activities on the premises, whether scheduled activities under cl A1.2 or other activities under cl A3.1. Accordingly, the licence did not authorise the defendant to accept C&D material at the premises for the purpose of crushing, grinding or separating. 36 I am fortified in this conclusion by two other matters. First, cl A4.1 provides that activities must be carried out in accordance with the licence application. Section 8 of the licence application expressly contemplates the crushing, grinding or separating of materials for recycling or reuse, including demolition materials, concrete, bricks or tiles. But cl A4.1 contains an important exception, namely, that it operates "except as expressly provided by a condition of this licence". Condition L5.3 is such an express condition, and it does not permit the acceptance at the premises of waste material. Secondly, condition L5.3 expressly provides that, if waste is received at the premises, then the premises will be a "controlled waste facility" under the POEO Act, requiring licensing and the payment of a levy under s 88. The consequence of this provision is that no activity authorised by the licence permits the receipt of waste at the premises, that being an activity which requires a further licence. 37 For the foregoing reasons, the defendant has failed to establish either plank of its defence. It has failed to establish that the C& D material accepted at the premises was not "waste" within the terms of the POEO Act or condition L5.3. It has also failed to establish that acceptance of the C&D material was authorised by the licence despite condition L5.3.

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The charge period 38 The summons alleges a continuing offence from 15 March 2001 continuing until 29 August 2001. The first date appears to represent the date upon which C&D materials were first accepted at the premises. That is revealed by the weighbridge record which Mr Hulley furnished on disc to the prosecutor's officers (according to Ms Kennedy's affidavit evidence) and a hard copy of which was tendered (although the weighbridge record indicates that C&D material may have been accepted on the previous day). That last date represents the day immediately preceding the day on which, according to Ms Kennedy's affidavit evidence, Mr Hulley undertook to the prosecutor's officers that C&D material would no longer be accepted at the premises. 39 There does not seem to be any dispute between the parties that the offence is a continuing offence. It is established from the weighbridge record that C&D material was accepted at the premises in contravention of condition L5.3 continually over the charge period. It was not accepted at the premises on every single day of that period - Sundays, for example, appear to be free of deliveries of C& D material - but it was accepted on most days. It is plain that there was a continuing course of conduct over the charge period. It was one transaction in the sense that each of the acts of contravention of condition L5.3 were connected with one another in time, place and manner of their commission (DPP v Merriman (1973) AC 584 at 593). 40 There is, however, an issue as to whether the continuous period of the offence is as extensive as that claimed by the prosecutor. Mr Hale submitted that the period of the offence ran from 9 August 2001 until 29 August 2001, and, as I understood his submission, that no prosecution of any contravention of the licence could be maintained for any period earlier than 9 August 2001 because that would, in terms of s 216(1) of the POEO Act, be statute-barred. 41 Section 216(1) of the POEO Act requires proceedings for any offence under that Act to be commenced, relevantly, within 12 months of the date on which the offence is alleged to have been committed. The summons in these proceedings issued on 9 August 2002. 42 To be accepted, Mr Hale's submission would require the date of commission of the offence to have occurred on 9 August 2001, there being no issue that the summons complied with the statutory limitation period in s 216(1). But I cannot accept this submission as accurate. The authorities make clear that a continuing offence gives rise to a complaint from day to day but it is not completed from day to day. It is completed on the day that the contravention ceases. In the case of a continuing offence, the statutory limitation period commences to run from the last day of the commission of the offence (see Cook v Cook (1923) 33 CLR 369; Ex parte Wakefield (1927) 27 SR (NSW) 261 and J Robins and Sons Ltd v Maloney (No 2) (1935) AR (NSW) 155 which are discussed in Environment Protection Authority v CSR Ltd t/a CSR Woodpanels (2001) 114 LGERA 217 at pars 32 - 41). 43 In this case, the last day of the commission of the offence was 29 August 2001. The summons was filed within a period of 12 months from that date, so that the statutory limitation period prescribed by s 216(1) was complied with. The defendant commenced to contravene the licence when it accepted C&D material at the premises on 15 March 2001 and it continued to contravene the licence until 29 August 2001.

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