Environment Protection Authority v Hughes; Environment Protection Authority... [2026] NSWLEC 92 | Case summary | Zoe

NSWNSWLEC

Environment Protection Authority v Hughes; Environment Protection Authority v ANT Civil Pty Ltd (No 5)

[2026] NSWLEC 92

Land and Environment Court (NSW)|2026-08-04|Before: Beasley J

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Court

Land and Environment Court (NSW)

Decision date

2026-08-04

Before

Beasley J

Catchwords

CRIMINAL LAW — Prosecution for environmental offences — Pollution of land — Pollutant of prescribed kind — Alleged dumping of asbestos waste — Alleged dumping of processed and unprocessed building and demolition material — Whether pollution caused or likely to cause potential harm to humans and degradation of the environment —Transporting of waste to a place that cannot lawfully be used as a waste facility — Unlawful use of land as a waste facility — Whether First Defendant “caused” land to be polluted — Whether First Defendant is an “occupier” of the land — Failure to comply with a Clean-Up Notice — Whether First Defendant had a “reasonable excuse” not to comply with a Clean-Up Notice — Whether First Defendant had management or control of Second Defendant — Defendants found guilty on all charges

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Catchwords

CRIMINAL LAW — Prosecution for environmental offences — Pollution of land — Pollutant of prescribed kind — Alleged dumping of asbestos waste — Alleged dumping of processed and unprocessed building and demolition material — Whether pollution caused or likely to cause potential harm to humans and degradation of the environment —Transporting of waste to a place that cannot lawfully be used as a waste facility — Unlawful use of land as a waste facility — Whether First Defendant “caused” land to be polluted — Whether First Defendant is an “occupier” of the land — Failure to comply with a Clean-Up Notice — Whether First Defendant had a “reasonable excuse” not to comply with a Clean-Up Notice — Whether First Defendant had management or control of Second Defendant — Defendants found guilty on all charges

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Environment Protection Authority v Hughes; Environment Protection Authority v ANT Civil Pty Ltd (No 5) [2026] NSWLEC 92

Hearing dates: 14 – 23, 28 and 30 October 2025
3, 5, 6 and 19 November 2025
9, 11, 12 and 26 February 2026
25 March 2026
13, 15, 16 and 17 April 2026

Date of orders: 04 August 2026

Decision date: 04 August 2026

Jurisdiction: Class 5

Before: Beasley J

Decision: (1) In case number 2023/297653, the Defendant Andrew Lloyd Hughes is convicted of an offence against s 142A(1) of the Protection of the Environment Operations Act 1997 (NSW).
(2) In case number 2023/297654, the Defendant Andrew Lloyd Hughes is convicted of an offence against s 142A(1) of the Protection of the Environment Operations Act 1997 (NSW).
(3) In case number 2023/297655, the Defendant Andrew Lloyd Hughes is convicted of an offence against s 143(1)(a) of the Protection of the Environment Operations Act 1997 (NSW). (4) In case number 2023/297656, the Defendant Andrew Lloyd Hughes is convicted of an offence against s 144(1) of the Protection of the Environment Operations Act 1997 (NSW). (5) In case number 2023/297657, the Defendant Andrew Lloyd Hughes is convicted of an offence against s 91B of the Protection of the Environment Operations Act 1997 (NSW). (6) In case number 2023/297689, the Defendant ANT Civil Pty Ltd is convicted of an offence against s 143(1) of the Protection of the Environment Operations Act 1997 (NSW). (7) All of the above proceedings are stood over before Beasley J for further mention at 9:30am on 14 August 2026 for the purpose of setting a date for the hearing of sentencing submissions, and any related orders.

On 27 August 2020, Andrew Lloyd Hughes (First Defendant) became a part owner of a property known as 903C Blaxlands Ridge Road, Wheeny Creek, New South Wales (the Property). The other co-owners of the Property were Tara-Lee Hughes (the First Defendant’s wife; Ms Hughes), and William Bradley Andrews. Mr Andrews ceased to be an owner of the Property on 28 April 2021.
Two charges pursuant to s 142A(1) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) have been brought against the First Defendant by the Environment Protection Authority of New South Wales (Prosecutor) concerning whether he caused the Property, and an access road connected to it (Access Road), to be polluted with “material including processed and unprocessed building and demolition material” (building waste) and with “asbestos waste” (Charges 1 and 2; “Pollution of Land Charges”).
The First Defendant has also been charged with an offence pursuant to s 143(1)(a) of the POEO Act in that it is alleged that he is concerned in the management of ANT Civil Pty Limited (Second Defendant), and that company caused the building waste, including asbestos waste, to be transported to the Property (Charge 3).
The First Defendant has also been charged with an offence pursuant to s 144(1) of the POEO Act in that it is alleged that he caused the Property to be used as a “waste facility” without lawful authority (Charge 4; “W****aste Facility Charge”).
A fifth charge has been brought against the First Defendant for an offence under s 91B of the POEO Act for failure to comply with a “clean-up notice" concerning the Property issued by the Prosecutor on 6 December 2022 (Charge 5; “Clean-up Notice Charge”).
The Second Defendant has been charged with an offence pursuant to s 143(1) of the POEO Act for causing building waste and asbestos waste to be transported to the Property when the Property could not lawfully be used as a waste facility (Sixth Charge).
All six charges concern strict liability offences.
For the reasons outlined below, I am satisfied beyond reasonable doubt that the First Defendant is guilty of Charges 1 to 5. I am also satisfied beyond reasonable doubt that the Second Defendant is guilty of Charge 6.

The Prosecutor read an affidavit of Daniel Philip Burchmore dated 21 June 2023 (which includes an Exhibit DB-01): Exhibit P1 in the proceedings. Mr Burchmore also gave oral evidence.
Mr Burchmore is a Senior Operations Officer employed by the Prosecutor. He was assigned to investigate a report received on 30 September 2020 that dumping of fill was taking place on the Property. In a phone conversation Mr Burchmore had with the First Defendant on 22 October 2020, he said that the First Defendant told him he had been bringing some “recycled asphalt” onto the Property for the purpose of building a new 2 km road from the Property to the main road. This statement was repeated during a meeting at the Property between Mr Burchmore and the First Defendant on 13 November 2020. At the same meeting the First Defendant told Mr Burchmore that he had also been bringing excavated natural material (ENM) onto the Property, as well as mulch.
During his inspection of the Property on 13 November 2020, Mr Burchmore observed a “Large Fill Area”, including what he described as a “Grey Fill Area”, which contained “light grey material” that appeared to him to be a “mix of soil rocks, crushed bricks and small volumes of concrete”: Burchmore affidavit at [28]. Mr Burchmore also observed fragments of material that he suspected contained asbestos. He took three samples of this material, later analysed at the Department of Planning and Environment laboratory and found to contain asbestos: Burchmore Affidavit at [43]; Exhibit DB-01 at [14]. Following this, the Prosecutor issued the First Defendant with a Clean-Up Notice dated 22 January 2021 (First Clean-Up Notice) pursuant to s 91(1) of the POEO Act*,* and advised him that asbestos waste had been found amongst the fill area on the Property. The First Defendant was directed to dispose of the asbestos waste by 26 March 2021.
On 23 March 2021, the First Defendant sent an email to Mr Burchmore in which he sought an extension of time for compliance with the Clean-Up Notice: Exhibit DB-01 at Tab 17. On 20 April 2021, the First Defendant again emailed Mr Burchmore and provided evidence that a “hygienist” had been retained, and “soil removed” from the Property: Exhibit DB-01 at Tab 19.
Mr Burchmore again attended the Property on 19 May 2021, and noted certain changes to the colour of the Grey Fill Area where asbestos samples had been taken. He says that the First Defendant told him he had removed all the material that he had been required to remove under the First Clean-Up Notice.

Mr Philip Khalifeh is a Compliance Investigations Officer employed by the Hawkesbury City Council (the Council). The Prosecutor read an affidavit of Mr Khalifeh sworn on 11 August 2023, which included Exhibit PK-01 to that affidavit (Exhibit P2). Mr Khalifeh also gave oral evidence at the hearing.
Mr Khalifeh inspected the Property on 10 May 2021. This occurred after the Council had received a number of complaints regarding trucks entering the Property and depositing material on it. At this inspection, the First Defendant told Mr Khalifeh that he was bringing in “some material to fix up the leaking dam”: Khalifeh affidavit at [4]. Mr Khalifeh observed that a bobcat was being operated by the First Defendant to move material around the dam area of the Property, and that a large amount of other material had been transported to the Property, some of which was in piles. He also observed “demolition waste” over a large area. Following this inspection, the Council issued the First Defendant and Ms Hughes with a “notice of intention to issue orders” dated 23 July 2021, given under Part 1 of Sch 5 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), being a “Stop Use Order” requiring the First Defendant and his wife to, inter alia, stop use of the Property for the purposes of a “waste disposal facility” as defined under the Hawkesbury Local Environmental Plan 2012. Also on 23 July 2021, a written direction to cease earthworks was issued by the Council to the First Defendant and Ms Hughes.
On 17 August 2021, the Council issued a Development Control Order (being a Stop Use Order given under s 9.34 of the EPA Act), ordering the First Defendant and Ms Hughes to, inter alia, stop using the Property for purposes of “a waste disposal facility”: Exhibit PK-01 at [5].
Mr Khalifeh inspected the Property again on 20 October 2021. During the course of this inspection, he observed that the piles of material he had seen on his previous inspection had now been spread over the Property. Mr Khalifeh also caused three X-Trail cameras to be attached to trees in the carriageway leading to the Property for the purposes of covertly recording truck movements. These cameras subsequently disappeared.
Mr Khalifeh undertook a third inspection of the Property on 10 May 2022, during which he observed that a large amount of material had been spread on the Access Road. He also observed that further material had been imported and spread on the Property including “waste bricks and plastics”: Khalifeh affidavit at [16]. Mr Khalifeh had a conversation with the First Defendant at this time in which he said that the First Defendant indicated he had been “getting asphalt from roadworks”: Khalifeh affidavit at [18].
Mr Khalifeh inspected the Property on a fourth occasion on 24 November 2022, and observed that a “tiny house with an attached awning” was now on the Property, and that further earthworks had been undertaken on the Access Road, and the material he had observed on the Property on previous occasions had now been graded and smoothed over: Khalifeh affidavit at [21].

(c) On 26 July 2022, Ms Burrows requested a two-week extension to comment on the draft Clean-Up Notice: Exhibit P17 at Tab 7. On 1 August 2022, Ms Burrows provided comments on the draft Clean-Up Notice: Exhibit P17 at Tab 12. (d) On 11 August 2022, an amended Clean-Up Notice (Second Clean-up Notice) was issued: Exhibit P17 at Tab 16. The Second Clean-Up Notice, identified as 'Stage One', required the same clean-up action as the draft notice, namely, the engagement of a qualified geotechnical engineer to assess the Property. The Second Clean-Up Notice outlined the Prosecutor's reasonable suspicion of a land pollution incident based on its officer's observations and the results of samples collected from the Property. In the notice, the First Defendant was told that the Prosecutor had formed the view that more than 10 tonnes of fill material deposited at the land contained asbestos waste and posed a potential risk to human health. (e) Further correspondence was exchanged between Ms Burrows and the Prosecutor in August and September 2022, in which Ms Burrows requested (and was granted) further extensions of time to respond to the notices and to comply with their clean-up actions: Exhibit P17 at Tabs 17-20. (f) A Variation of Notice of Clean-Up Action (Variation Notice) was issued on 28 September 2022 and required compliance by 5pm 21 October 2022: Exhibit P17 at Tab 21. The Variation Notice stated that the Prosecutor reasonably suspects that the First Defendant was causing or caused a pollution incident at the Property by causing the transport of waste within the meaning of the Act, including waste containing asbestos. Ms Burrows responded to this Variation of Notice on 21 October 2022, confirming compliance with the directions to take action: Exhibit P17 at Tab 22. (g) In November 2022, the Prosecutor became aware of possible activity at the Property involving a grader operator. On 9 November 2022, the Prosecutor sought reasons for those operations and provided Ms Burrows with a copy of a Prevention Notice served on 21 June 2022: Exhibit P17 at Tab 23. The Prosecutor attended the Property on 11 November 2022 and again on 24 November 2022. Mr Hennessy and Mr Hazell observed the ground had been smoothed over, with tyre tracks visible and previous sampling pits filled in. No changes were observed at the subsequent attendance. (h) A Third Clean-Up Notice dated 6 December 2022 (the notice the subject of Charge 5 brought against the First Defendant), directed the First Defendant to provide the Prosecutor with a Remedial Action Plan, and to remove the contaminated fill material: Exhibit P17 at Tab 30. The Prosecutor advised that several samples analysed from the site inspection undertaken on 21 June 2022 confirmed the presence of asbestos, and that it reasonably suspected a pollution incident was occurring and ongoing given these sampling results.

| LOCATION | DESCRIPTION | AREA ESTIMATE (m²) | VOLUME ESTIMATE (m²) | | Site 1 | The main filled area at the Premises was assessed by excavating 75 test pits (TP01 to TP28, and TP30 to TP76). The fill varied in depth from less than 0.1 m to beyond 3.6 m (the maximum excavator reach). The fill was shallowest along the natural north/south ridgeline that ran along the centre to western third of the site. | 39,474 | 42,850 (1) | | Site 2 | Site 2 was located on the western side of the access driveway, approximately 1.1km from the intersection with Blaxlands Ridge Road. It appeared to be a levelled area that had been freshly filled based on the lack of vegetation (photographs 21 and 22). The area was assessed by excavating three test pits (TP78 to TP80). Fill materials were found to be between 0.4 and 1.2 m thick and comprised brown sandy silty clay with foreign materials variously including brick, timber, ash, glass PACM (photographs 23 and 24). | 748 | 388 (1) | | Site 3 | Site 3 was located on the eastern side of the entrance driveway, approximately 1 km from Blaxlands Ridge Road. It had a footprint of approximately 8m2. This zone comprised a single stockpile placed in what appeared to be a pre-existing clearing based on existing grass in the area (photograph 25). As the site comprised a single stockpile (Stockpile 5) it is discussed in Table 6.2. | 8 | Captured in Table 6.2 | | Site 4 | Site 4 is located on the eastern side of the entrance driveway approximately 1km from Blaxlands Ridge Road. The site was a clearing in the bushland that appeared recently formed based on the lack of vegetation visible on the surface (photograph 27). The site was level with the roadway and relatively flat but fell steeply down batters to the north east and south that were visually estimated to be 2 m high in places (photograph 28). The site was assessed by a single test pit (TP82). Fill at TP 82 was measured to be 1.15 m thick and comprised a dark brown ashy silty sand, brown and grey clays and sandstone (photograph 29). The ashy soils contained coke and charcoal throughout (photograph 30). The fill was found to have frequent foreign materials including glass, ceramic, timber and PVC plastic. | 392 | 287 (1) | | Site 5 | Site 5 is located on the eastern side of the entrance driveway approximately 0.8 km from Blaxlands Ridge Road. The site was a clearing in the bushland that appeared recently formed based on the lack of vegetation visible on the surface (photograph 31). The site was level with the roadway and relatively flat but fell steeply down batters to the north, east and south that were visually estimated to be between 1 and 4 m high (photograph 32). The site was assessed by two test pits (TP83 and TP84) and 4 additional surface PACM fragments (JM101 to JM104). Fill in the test pits was measured to be between 0.7 and 1.1 m thick and comprised brown and dark brown clays and some orange clay with pockets of black ashy waste. The soil contained some foreign materials including plastic, ceramic, timber, glass, a dark brown ashy silty sand, brown clays and sandstone (photographs 33 and 34). The ashy soils contained coke and charcoal throughout. The fill was found to have frequent foreign materials including glass, ceramic, timber and PVC plastic. | 668 | 638 (1) | | Site 6 | Site 6 was located approximately 0.7 km from the intersection with Blaxlands Ridge Road and spanned both sides of the Access Road. The area comprised freshly levelled clearings in the bush based on the lack of vegetation on the fill (photographs 35 and 36). In places established trees had been filled around. The area was assessed by excavating 5 test pits (TP85 to TP89), with one additional test pit placed on the roadway (TP98). Fill material on the eastern side ranged from 0.6 m to 2.2 m thick, while fill on the western side ranged from 1.0 m to 1.2 m thick. The fill on both sides of the driveway appeared quite similar comprising brown gravelly sandy clay and silty clay with foreign materials variously including bricks, timber, ash, glass, plastic, concrete and in places PACM (photographs 37 and 38). | 2443 | 1,636 (1) | | Site 7 | Site 7 is located on the eastern side of the entrance driveway, approximately 0.4 km from Blaxlands Ridge Road. This zone appeared to be an older level filled clearing based on established grass in the area (photograph 39). One test pit (TPA) was excavated into the site. Fill was found to be shallow, 0.2 m deep, and comprised an orange/brown clay with brown sandy clay and some shale (photograph 40). Some foreign materials were present including brick concrete and PVC. | 119 | 16 (1) | | Site 8 | Site 8 was located on the eastern side of the access driveway, approximately 0.3 km from the intersection with Blaxlands Ridge Road. It appeared to be a poorly levelled area with a slope to the east that had been freshly filled based on the lack of vegetation (photograph 41). The area was assessed by excavating one test pit (TP90). Fill materials were found to be approximately 0.4 m thick and comprised brown sandy clay and some sandstone with foreign materials including ceramic, plastic, concrete, glass, blue metal, terracotta, and some PACM fragments (photograph 42). | 200 | 55 (1) | | Site 9 | Site 9 was located on the eastern side of the access driveway, approximately 0.13 km from the intersection with Blaxlands Ridge Road. It appeared to be a levelled area that had been freshly filled based on the lack of vegetation (photographs 43). The area was assessed by excavating one test pit (TP91). Fill materials were found to be shallow at 0.2 m thick and comprised brown sandy clay and sandstone with frequent foreign materials including wire, ceramic, concrete, glass, and PACM fragments (photograph 44). | 55 | 5 (1) | | Site 10 | Site 10 was not surveyed but was located on the eastern side of the driveway, approximately 1.25 km from the intersection with Blaxlands Ridge Road. The site was a freshly disturbed clearing in the bushland (photograph 45). Fill was assessed by a single test pit (TP77) and was found to be 0.7 m thick. The fill was described as a light brown silty sand with gravels and occasional concrete fragments (photograph 46). | 45 | 31 (2) | | Total estimated volume of spread fill | 45,906 |

| LOCATION | DESCRIPTION | VOLUME ESTIMATE (m3) | | Stockpile 1 | Stockpile 1 was located centrally on Site 1. It comprised a large mound of crushed gravelly sand that had the appearance of crushed asphalt. Four samples (SS03 to SS06) were collected from this material. | 300 (1) | | Stockpile 2 | Stockpile 2 was located on the eastern side of Site 1, at the top of the steep batter. It appeared to be a small irregular shaped stockpile of soil-based fill, it appeared to be two loads (or a truck and dog load). One sample was collected from the stockpile (SS02) and described as a dark brown gravelly clayey sand with foreign materials including terracotta, glass, brick, plastic, tile, timber and PACM. | 10 (2) | | Stockpile 3 | Stockpile 3 was also located on Site 1, north of Stockpile 2 and on the level area immediately west of the steep batter present on the eastern side of the site. It was a small oval shaped stockpile of soil-based fill, it appeared to be a single load. One sample was collected from the stockpile (SS01) and the fill was described as a dark brown gravelly sand with foreign materials including brick, terracotta and plastic. | 5 (2) | | Stockpile 4 | Stockpile 4 was located centrally on the main filled areas, immediately to the west of Stockpile 1. It comprised two small stockpiles (shown as stockpile 4a and 4b) that appeared of similar material. Each sub stockpile appeared to be a single truck load. One sample was collected (SS07) and described as a brown gravelly clayey sand with glass, sandstone gravels, asphalt gravels and fabric. | 8 (2) | | Stockpile 5 | Stockpile 5 was located on the eastern side of the driveway. It was surveyed as Site 3. The stockpile appeared to be a single truck load located in a possibly pre-existing clearing. One test pit was placed into the stockpile (TP81) and the material encountered was a medium brown loose sandy material with brick and concrete fragments up to 30 cm diameter (photographs 25 and 26). | 4 (1) | | Stockpile 6 | Stockpile 6 was located at the southern end of the entrance driveway, at the head of a track leading to the west (photograph 47). It appeared to be a single large truck load and was described as dark brown sandy silty clay with sandstone and shale gravels and some foreign materials including plastic, concrete and silt fencing fabric (photograph 48). One sample (SS08) was collected from the stockpile. | 5 (2) | | Stockpile 7 | Stockpile 7 was located further to the west along the same track that Stockpile 6 was located at the head of. The stockpile appeared larger than Stockpile 6 and may have comprised a truck and dog load (photograph 49). The material was described as dark brown sandy silty clay with sandstone and shale and contained some foreign materials including plastic, brick, concrete, coal, packing tape and PACM (photograph 50). One sample (SS08) was collected from the stockpile. | 10 (2) | | Total volume of stockpiles (m3) | 342 |

| LOCATION | VOLUME (m3) | DESCRIPTION | WASTE CLASSIFICATION | | Site 1 | 42,850 m3 (68,560 t) (1) | Concentrations of TRH, BTEX, PAHs, pesticides, PCBs, phenols, VOCs, SVOCs and PFAS were reported below the thresholds for general solid waste. However, asbestos was found within 40 fragments either collected from the site surface or sieved from the waste during soil sampling, and was also detected in the soil matrix at 3 locations. The presence of asbestos means this material is classified as Special Waste (Asbestos Waste). | Special Waste (Asbestos Waste). | | Site 2, Site 4, Site 5, Site 6, Site 8, Site 9 and Site 10 | 3,040 m3 (4,864 t) (1) | For the purposes of waste classification sites 2, site 4 to 6, and sites 8 to 10 were considered the one source. This was based on the similarity of the descriptions of the waste, and the fact these areas all appeared recently filled. The composition of the fill in Site 7 appeared different to these others, and it was overgrown by vegetation indicating a separate, earlier event. For this reason it is discussed separately. Within these above listed sites, concentrations of TRH, BTEX, PAHs, pesticides, PCBs, phenols, VOCs and SVOCs and PFAS were reported below thresholds for general solid waste. However, asbestos was found within 12 fragments either collected from the site surface or sieved from the waste during soil sampling and was also detected in the soil matrix at 3 locations. The presence of asbestos in the soil means this material is classified as Special Waste (Asbestos Waste). | Special Waste (Asbestos Waste). | | Site 7 | 16 m3 (25 t) (1) | In the single sample collected from this area, concentrations of heavy metals, TRH, BTEX, PAHs, pesticides, PCBs, phenols, VOCs, SVOCs and PFAS were reported below the thresholds for general solid waste. Asbestos was not found on the surface or in the fill at this location, therefore the waste from Fill Site 7 is considered consistent with general solid waste. | General Solid Waste | | Stockpile 1 | 300 m3 (480 t) (1) | Four samples were collected from Stockpile 1. Concentrations of TRH, BTEX, PAHs, pesticides, PCB and phenols met thresholds for general solid waste. Asbestos was not found on the surface or in the fill at this location, therefore the waste from Stockpile 1 was considered consistent with general solid waste. | General Solid Waste | | Stockpile 2 Stockpile 3 Stockpile 4 and Stockpile 5 | 27 m3 (45 t) (1) | Stockpile 2, Stockpile 3, Stockpile 4 and Stockpile 5 were considered together for the purposes of waste classification due to their similarity in description and chemical properties. A total of four soil samples were collected from these stockpiles. Concentrations of TRH, BTEX, PAHs, pesticides, PCBs, phenols and PFAS were reported below the thresholds for general solid waste. Asbestos was not found on the surface or in the fill encountered while collecting soil samples from these stockpiles, therefore the waste from Stockpile 2, Stockpile 3, Stockpile 4 and Stockpile 5 was considered consistent with general solid waste. | General Solid Waste | | Stockpile 6 and Stockpile 7 | 15 m3 (25 t) (1) | Stockpiles 6 and 7 were located in close proximity and had a similar appearance and composition. For this reason, they were assessed together for the purposes of waste classification. Two soil samples were collected from these stockpiles. Heavy metals, TRH, BTEX, PAHs, pesticides, PCBs, phenols and PFAS were reported below the thresholds for general solid waste. However, asbestos was detected in a fragment of PACM found on the surface of Stockpile 7. The presence of asbestos in the soil means this material is classified as Special Waste (Asbestos Waste). | Special Waste (Asbestos Waste). |

| Year | Investigation Area | Surrounds | | April 2021 (Figure 10A and 10B) | This paragraph should be read between the August 2019 and the February 2022 rows in Table 3.2 of my statement of evidence. Filling was evident across the southern, central, northern and northeastern portions of Site 1. The fill appeared freshly placed as evidence by the lack of vegetation. Several un-spread stockpiles were also visible north and west of the dam. The eastern portion of the site and the far northern portion appeared to be native vegetation, although it is possible some fill was encroaching around the trees as some bare earth is visible between the trees, particularly those nearer the centre of the site. Little evidence for filling was visible along the access track, other than a portion of bare earth in Site 2 covering approximately 1/3 of the eventual filled footprint. | The area surrounding the Investigation Area appeared largely unchanged from the August 2019 aerial photograph. | | May 2024 | This paragraph should be read after the February 2022 row in Table 3.2 of my statement of evidence. Filling across the majority of Site 1 appeared to have ceased by this time, with most of the peripheral areas being vegetated with grass. The central portion of Site 1 remained bare along with several visible stockpiles of soil on that hardstand area. A site shed was visible on the western side of this central clearing. In the north of the site the full extent of filling was now evident suggesting that further filling in the north occurred after February 2022 (consistent with site observations at the time of my inspection on 21 June 2022). The northern batter showed a significant erosion gully despite the vegetation, suggesting offsite migration of sediment is likely to have occurred. Vegetation in the west of the site appeared thinner than in previous imagery possibly indicating further tree die-back. Dead trees can be seen across all filled areas. Evidence of filling along the access track was visible at Site 2, Site 4, Site 5 and Site 6. Whilst the fill at Sites 2, 4 and 5 appeared somewhat vegetated, portions of Site 6 appeared bare, with several stockpiles remaining visible in the east. Possible dead trees were also visible across Areas 5 and 6. | The surrounding area remained largely unchanged from the February 2022 aerial photograph |

On both 21 and 28 June 2022, fragments of material were collected from the Property, and 98 test pits for the collection of soil samples were created. 75 of these test pits were on the Property, with the balance on the Access Road. 131 primary soil samples were collected, together with 62 fragments of material considered to be asbestos containing material.
Those test pits ranged across an area that could be observed to have had fill deposited on it. Asbestos was detected in 33 samples collected from the Property and Access Road, and subsequently analysed in accredited laboratories: see the evidence of Mr McKay referred to above at [80]-[88]. See also the s 262 certificates.
Further, I accept Mr McKay’s evidence, based on his observations and analysis of aerial photographs, that the fill material containing building waste and asbestos waste (as defined) that was introduced to the Property and Access Road was largely introduced in the period 2021 to 2022, and that it was not, or not in the main, ENM.
While the presence of asbestos on the Property and the Access Road is proven beyond reasonable doubt by the laboratory analysis and expert evidence – including the evidentiary certificates made under s 261 and 262 of the POEO Act (Exhibits P36 to P45) – there is a great deal of circumstantial evidence that supports the scientific analysis and expert evidence.
First, the surveillance cameras captured 661 truck movements (including truck and trailer movements) in just the five-week period between 17 March 2021 to 27 April 2021: Callaghan and Hennessy; Exhibits P6 and P17.
Second, there are a large number of tax invoices from haulage companies that evidence the transit of trucks to the Property, and the delivery of fill materials, with many of those invoices showing truck registration details that could be verified from the surveillance film: see Exhibits P2 and P28, and the table at [84] of the Prosecutor’s Written Submissions (PWS). Annexure E to the PWS contains a table summarising tax invoices produced by the company MLC Bulk Haulage Pty Ltd (part of Exhibit P2) relating to deliveries to the Property by truck.
Third, there are many messages (WhatsApp and SMS) that were forensically downloaded from the First Defendant’s phone which evidence that the Property was being used as a place for tipping loads of building waste: Exhibit P35. A number of these messages from the First Respondent contain entries such as “tipping at 903 Blaxland Ridge”, or similar such words. The First Defendant refers to having “brought [sic] 2 tips – Londonderry and Blaxlands Ridge”. Those messages that contain the word “asbestos” (although not all pointing to delivery of asbestos to the Property) are set out in Annexure G to the PWS.
Fourth, while asbestos was found in the samples, including the soil samples, taken from the Property and the Access Road on 21 and 28 June 2022, asbestos fragments were also found on the Property by Mr Burchmore during his inspection on 13 November 2020: see [31] above.
Fifth, both Mr Mathie and Mr Khalifeh witnessed fill material being moved around the land by the First Defendant using a bobcat: see [35] and [45] above.
Sixth, the fill material can be seen in a large number of the photographs and in the film evidence tendered in the proceedings, for example, Exhibits P9, P16, P19 and P24. Mr McKay, whose evidence I accept in its entirety, notes in the First McKay Report that photographic evidence identifies that most of the fill placed on the Property and the Access Road had been placed on it in the period August 2019 to June 2022, with the majority since April 2021. This is also consistent with the evidence of both Mr Tofler and Mr Nugent, and I note that Mr Nugent accepted in cross-examination that the fill on the Property was placed there in the period that it was owned by the First Defendant: T703.21-39.
Seventh, the evidence of Mr Mitchell was that he conducted a considerable clean-up of the Property, including of building waste and material he thought to be asbestos, after his company purchased it in 2024: see [143] above.
As to the volume of fill, I accept the expert evidence of Mr Ford that about 43,150 cubic metres (over 69,040 tonnes) of fill has been applied to the Property, and about 3,029 cubic metres (4,959 tonnes) of fill has been applied to the Access Road: Exhibits P21 at [27] and P22; First McKay Report at [6.3.4] and [6.4.2].
While the Defendants disputed Mr Ford’s evidence and submitted that he was “unable to confirm the volume in cross-examination due to the methodology used” (DWS at [24]), the opinions set out by Mr Ford in his expert reports were not undermined in cross examination. Moreover, Mr Ford’s opinion is consistent with the evidence referred to above concerning:

That the First Defendant caused the “asbestos waste” and building waste to be deposited on the Property and the Access Road is established (although not exclusively) by the messages extracted from his phone. In the DWS, the submission is made that there is no “direct evidence that the First Defendant personally or through a proxy” polluted the land: DWS at [2b]. There is limited force to that submission. There are multiple text and WhatsApp messages where the First Defendant has directed trucks to “tip” material on the Property and Access Road: Exhibit P35. That material has been found to be “land pollution”.
Further, there are also other facts from which it can be readily inferred that the First Defendant caused the Property and Access Road to be polluted, and which satisfy me he did this beyond reasonable doubt. This includes (but is not limited to) the evidence of Mr McKay that the vast amount of fill deposited on the Property was deposited after August 2019, and most after April 2021 (noting the First Defendant became an owner of the Property in August 2020): see Exhibit P30 at [2.5.1]; Exhibit P34 at [3]. It includes the observations of various witnesses such as Mr Burchmore, Mr Khalifeh, Mr Mathie and others referred to above.
The Defendants also submit that there is no “receipt or similar document from a supplier which identifies the material obtained by the First Defendant was other than ENM”: DWS at [6]. This submission simply ignores the evidence that building waste such as brick, concrete, bitumen and plastics were found on the Property, as was asbestos waste. It ignores the expert evidence that what was deposited on the land was not ENM.
As to the asbestos waste, it is suggested by the Defendants that this material could have been dumped by “unknown persons” or “another person”: DWS at [15], [16], [19]. That submission lacks any evidentiary foundation, and can be contrasted to the vast amount of evidence establishing the First Defendant directed trucks to dump or tip material on to the Property and Access Road. It is nothing more than conjecture. There is no evidence of any substance to support it such that it would be reasonable to conclude (on the balance of probabilities) that the building and asbestos waste found on the Property and Access Road might have been introduced to these locations by persons other than those directed to do so by the First Defendant. To the contrary, the evidence adduced by the Prosecutor establishes, beyond reasonable doubt, that the First Defendant caused the polluted fill material to be tipped onto the Property and Access Road.
Based on the evidence:

Although the First Defendant accepted that he was an occupier of the Property in the DWS at [18], this submission was subsequently withdrawn, and in his Supplementary Closing Submissions (DSCS) the First Defendant contended that he was not an occupier: DSCS p 2. This submission is seemingly based on the contention that the First Defendant did not have “management or control” of the Property. This in turn seems to be based on the submission that the First Defendant did not “live there” and was not “present at all times”: DSCS at p 2.
I reject this submission, which is unfounded and cannot be maintained. The evidence supporting the contention that the First Defendant had “management or control” of the Property is overwhelming.
First, at all material times, the First Defendant was an owner of the Property.
Second, he was present at the Property during many inspections by the Council, and the Prosecutor.
Third, he clearly indicated to Mr Mathie that he had control of the Property. He did the same with Mr Khalifeh.
Fourth, through his solicitor, Ms Burrows, he responded to various regulatory notices issued by the Prosecutor, and gave undertakings to do things that could only be done by someone with management or control of the Property. He likewise dealt with Mr Burchmore as someone with control of the Property.
Fifth, the messages extracted from his phone directing waste materials to be deposited on the Property and the Access Road are consistent with someone with management and control of the Property.
In passing, I note that none of the matters outlined in s 257(1)(a) to (c) have been established by the First Defendant. To the contrary, it is clear, and I find beyond reasonable doubt, that the pollution of the Property with asbestos waste was caused by the First Defendant. He was an “occupier” of the Property. Based on all the evidence referred to above, I am satisfied beyond reasonable doubt that the First Defendant caused both the Property and the Access Road to be polluted.

Environment Protection Authority v Hughes; Environment Protection Authority v ANT Civil Pty Ltd (No 5)

At a glance

Court

Decision date

Before

Catchwords

Source

Email me a plain-English summary of this case

Catchwords

Judgment

JUDGMENT

Introduction

Hearing and Procedural History

Agreed Facts

Charges 1 and 2: the Pollution of Land Charges

Particulars of the Charges

Other relevant statutory provisions

“Cause” the Property to be polluted

Lay Evidence

Daniel Burchmore

Philip Khalifeh

George Ellinas

Norman Mathie

Amanda Kelly

Anthony Callaghan

Daniel Opdam

Mark Leuschner

Kyle Brown – “chain of custody” evidence

Anthony Jones

Frederick Hennessy

Asbestos containing material samples sent to laboratory

WhatsApp and SMS messages

Hannah Robertson

Michelle Ann Roberts

Joshua Madden

Expert Evidence

Alana Smylie – Prosecution expert

Andrew Ford – Prosecution expert

Colin McKay – Prosecution expert

Nicolas Israel – Defendants’ expert

Kurath’s Arborist Statement – Defendants’ expert

Nugent’s Xylology Arboricultural Assessment – Defendants’ expert

Tofler’s Coleman and Adams Targeted Environmental Site Assessment – Defendants’ expert

McKay’s First Supplementary Report

McKay’s comments on the Arborist Statement

McKay’s comments on the Xylology Report

McKay’s comments on Tofler’s Site Assessment

Israel’s Supplementary Report

McKay’s Second Supplementary Report

McKay Conclusions

Evidence of Simon Caples and Samuel Mitchell

McKay’s Third Supplementary Report

Consideration and Resolution of Charges 1 and 2

What must be proven beyond reasonable doubt

Were the Property and Access Road “polluted”?

Rejection of Mr Israel’s opinions

Acceptance of Prosecutor witnesses

Mr McKay’s evidence is accepted

The material imported to the Property and Access Road poses a risk of harm

Did the First Defendant cause or permit the Property and the Access Road to be polluted?

The First Defendant is in any event an “occupier” of the Property and is “taken to have caused the pollution”

Conclusion as to Charges 1 and 2

Charges 3 and 6 (Transport of Waste Charges)

Introduction

Charge 6

Did the Second Defendant transport “waste” to the Property itself, and did it cause such “waste“ to be transported?

The material transported was “waste”

The Property was used as a “waste facility”

The use was unlawful

Conclusion on Charge 6

Charge 3

Conclusion on Charge 3

Charge 4 – Waste Facility Charge

Conclusion on Charge 4

Charge 5

Particulars of Charge 5

What is a “reasonable excuse” for non-compliance with a Clean-Up Notice?

The Clean-Up Notice was validly issued

The Clean-Up Notice, without reasonable excuse, was not complied with

Conclusion on Charge 5