Environment Protection Authority v N

Land and Environment Court (NSW)|1986-11-06|Before: Lloyd J, Hunt CJ, Mr J

CITATION : Environment Protection Authority v. Anning [1998] NSWLEC 129 PROSECUTOR Environmental Protection Authority PARTIES : DEFENDANT Anning FILE NUMBER(S) : 50077 - 50086 of 1995 CORAM: Lloyd J KEY ISSUES: :- Environmental Offences and Penalties Act 1989, LEGISLATION CITED: Division 1 Pt 2 & Division 2 Pt 2, ss 5(1), 8E, 8F(1), 14(1) Waste Minimisation and Management Act 1995, Clean Waters Act 1970, s 16(2)(a) Environment Protection Authority v N (1992) 26 NSWLR 352 at 355; 76 LGRA 114 at 117, per Hunt CJ at CL; CASES CITED: Boughey v The Queen (1986) 161 CLR 10; Matthews v Goulburn Wool Processors Pty Ltd (Supreme Court of NSW, 6 November 1986, unreported); R v Metropolitan Stipendiary Magistrate, Ex parte London Waste Regulation Authority [1993] 3 All ER 113 DATES OF HEARING: 15 - 18/06/98 DATE OF JUDGMENT: 06/29/1998

PROSECUTOR B F Rowe & L M Byrne Stephen Garrett, Environment Protection Authority, Chatswood LEGAL REPRESENTATIVES: DEFENDANT J R McKenzie & (on 18 June) I J Hemmings Priority Legal Services, Toukley

50077/95: 31 October 1995 - Failure to comply with an order under s 14(1) of the Act, contrary to s 8E of the Act.

50078/95: 31 October 1995 - Negligent disposal of waste in a manner likely to harm the environment, contrary to s 5(1) of the Act.

50079/95: 6 November 1995 - Negligent disposal of waste in a manner likely to harm the environment, contrary to s 5(1) of the Act.

50080/95: 7 November 1995 - Failure to comply with an order under s 14(1) of the Act, contrary to s 8E of the Act.

50081/95: 10 November 1995 - Negligent disposal of waste in a manner likely to harm the environment, contrary to s 5(1) of the Act.

50082/95: 16 November 1995 - Failure to comply with an order under s 14(1) of the Act, contrary to s 8E of the Act.

50083/95: 10 November 1995 - Failure to comply with an order under s 14(1) of the Act, contrary to s 8E of the Act.

50084/95: 6 November 1995 - Failure to comply with an order under s 14(1) of the Act, contrary to s 8E of the Act.

50085/95: 7 November 1995 - Negligent disposal of waste in a manner likely to harm the environment, contrary to s 5(1) of the Act.

50086/95: 16 November 1995 - Negligent disposal of waste in a manner likely to harm the environment, contrary to s 5(1) of the Act.

It is convenient to decide these five charges first. Mr J R McKenzie, who appears for the defendant, submits that the order made under s 14(1) of the Act, upon which the charges are based, is not a valid order. Alternatively, Mr McKenzie submits that there cannot, in any event, have been any contravention of that order.

The facts relating to these offences may be briefly described. On 22 March 1995 the defendant was convicted by a magistrate in the local court at Newcastle of the offence that he:

AOn 17 November 1993 did at Wyee in the State of New South Wales without lawful authority deposit refuse in a public place contrary to s 8F of the Environmental Offences and Penalties Act 1989, dump approximately 70 used vehicle tyres on Crown Land adjacent to Ruttleys Road, Wyee.@

The magistrate imposed a fine of $300 plus court costs, professional costs and witness expenses. Further, the magistrate made an order under s 14(1) of the Act in the following terms:

A1. Defendant not dump tyres or any other waste material at the Wyee site.

Defendant not enter or be in the vacinity (sic) of the Wyee Site bounded by Wyee Road, Ruttleys Road, Morisset Golf Course and Train line unless with the prior approval [of] the Environmental (sic) Protection Authority.

The defendant dispose of any tyres coming into his possession only by means approved of by the Environmental (sic) Protection Authority.@

The offence of which the magistrate convicted the defendant was against s 8F, within Division 2 of Pt 2 of the Act, which relevantly provides:

A8F(1) A person who, without lawful authority, deposits any refuse in a public place is guilty of an offence and liable to a penalty not exceeding $300.@ (the emphasis is mine)

It is necessary that I also set out s 14(1) of the Act, which, inter alia, states as follows:

A14(1) In addition to imposing a penalty for an offence arising under Division 1 or 2 of Pt 2, a court may order the person convicted to take such steps as are specified in the order, within such time as is so specified (or such further time as the court on application may allow), to prevent, control, abate or mitigate any harm to the environment caused by the commission of the offence or to prevent the continuance or recurrence of the offence.@ (the emphasis is mine)

The offence of which the defendant was convicted was the depositing of used vehicle tyres on Crown land adjacent to Ruttleys Road, Wyee. I assume that, since a conviction was recorded, the magistrate was satisfied that the Crown land was Aa public place@ within the meaning of s 8F(1) of the Act. The order made by the magistrate under s 14(1) of the Act was directed to prevent the continuance or recurrence of Athe offence@. The first and second orders made under s 14(1) were clearly within the power of the magistrate. They were directed to prevent the continuance or recurrence of the offence, namely, the depositing of tyres on the Crown land adjacent to Ruttleys Road. There is some basis for concluding that the second order made by the magistrate is too wide, but I do not have to decide this question. The third order made by the magistrate, however, is too wide unless it can be read down to mean: AThe defendant dispose of tyres coming into his possession on Crown land adjacent to Ruttleys Road, Wyee only by means approved of by the Environment Protection Authority.@ That is the offence of which the defendant was convicted. If the third order made by the magistrate was intended to apply generally, then it was made beyond power.

The defendant deposited used tyres on land being Lot 6 in Deposited Plan 701643, Schofield Road, Wyee. That is not Crown land, neither is it a public place. The depositing of tyres on Lot 6 in Deposited Plan 701643 Schofield Road, Wyee, therefore, does not constitute an offence under s 8F of the Act. The order made by the magistrate under s 14(1) could not relate to a different offence to the one with which he was concerned. Accordingly, the defendant is not guilty of the offence under s 8E for failing to comply with an order under s 14(1). The five charges alleging this offence will be dismissed.

AIf a person, without lawful authority, wilfully or negligently disposes of waste in a manner which harms or is likely to harm the environment:

(b) if the person is not the owner of the waste, the owner,

Section 5(1) requires the prosecutor to prove that:

(ii) The disposal occurred without lawful authority;

(iii) The substance was waste (as defined by the Act);

(iv) The disposal caused harm to the environment or was likely to cause such harm; and

(v) The defendant in so acting did so negligently. (The prosecutor does not rely on wilfully in these prosecutions.)

There is no definition in the Act of the word Adisposes@ or the term Ato dispose@. The word Adisposes@ thus bears its ordinary meaning of Ato get rid of@ (Environment Protection Authority v N (1992) 26 NSWLR 352 at 355; 76 LGRA 114 at 117, per Hunt CJ at CL).

The onus of proving Alawful authority@ lies with the defendant (s 10A).

AWaste@ is defined in the Act (s 4) as relevantly meaning:

(b) trade waste, being any matter or thing, whether solid, gaseous or liquid or a combination of solids, gases and liquids (or any of them), which is of a kind that comprises refuse from any industrial, chemical, trade or business process or operation, including any building or demolition work; or

and includes waste within the meaning of the Waste Minimisation and Management Act 1995.@

The concluding words of the definition containing a reference to the Waste Minimisation and Management Act 1995 were added to that definition by Act No 102 of 1995, which was assented to on 22 December 1995. Accordingly, the reference to that Act does not apply to the present prosecutions, since the events to which they relate took place in October and November 1995.

The phrase Aharm to the environment@ is relevantly defined in the Act (s 4) as including:

Aany direct or indirect alteration of the environment that has the effect of degrading the environment Y@

The word Aenvironment@ is defined in the Act (s 4) as including:

Aall aspects of the surroundings of human beings, including:

(a) the physical factors of those surroundings, such as the land, the waters and the atmosphere; and

(b) the biological factors of those surroundings, such as the animals, plants and other forms of life; and

The word Alikely@ in the phrase Alikely to harm the environment@ is not defined in the Act. Accordingly, the ordinary or natural meaning of that word as used in the context in which it appears is the meaning which applies. In Boughey v The Queen (1986) 161 CLR 10, Mason, Wilson & Deane JJ held (at 21) that the word Alikely@ in the phrase Alikely to cause death or bodily harm@ in the Criminal Code (Tas) s 157(1), is used Awith what we apprehend to be its ordinary meaning, namely to convey the notion of a substantial - a >real and not remote= - chance, regardless of whether it is less or more than fifty per cent@.

Smart J in Matthews v Goulburn Wool Processors Pty Ltd (Supreme Court of NSW, 6 November 1986, unreported) considered the meaning of the word Alikely@ in the Clean Waters Act 1970, s 16(2)(a). Section 16 of that Act, inter alia, states:

(2) Without limiting the generality of subsection (1), a person shall be deemed to pollute waters if:

(a) the person places any matter (whether solid, liquid or gaseous) in a position where:

(i) it falls, descends, is washed, is blown or percolates; or

(ii) it is likely to fall, descend, be washed, be blown or percolate,

into any waters, on to the dry bed of any waters, or into any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted, or causes or permits any such matter to be placed in such a position; or

and the matter would, had it been placed in any waters have polluted or have been likely to pollute those waters.@

AThe word >likely= in s 16(2)(a) means a real or not remote chance or possibility regardless of whether it is less or more than a fifty per cent chance.@

In the context of the Clean Waters Act 1970, s 16(2), the word Alikely@ in the phrase Alikely to pollute@ has been held by judges of this Court to mean Aonly a real chance or possibility@, not Aprobable@ (State Pollution Control Commission v Blayney Abattoirs Pty Ltd (1991) 72 LGRA 221, at 224, per Hemmings J; State Pollution Control Commission v New South Wales Sugar Milling Co-operative Limited (1991) 73 LGRA 86 at 100, per Cripps J). I therefore adopt the meaning of the word Alikely@ in the present context as meaning a real and not remote chance or possibility, regardless of whether it is less or more than a fifty per cent chance,

The word Anegligently@ must be decided on an objective basis. In Environment Protection Authority v N at 358-359 Hunt CJ at CL said:

ASection 5(1) also provides for an offence of negligently disposing of waste in a manner which harms or is likely to harm the environment. In considering whether a defendant has acted negligently, the issue is decided upon an objective basis. What must be considered is whether the risk of such harm was foreseeable to the reasonable person in the position of the defendant, not whether the defendant subjectively foresaw the risk himself: Wyong Shire Council v Shirt (1980) 146 CLR 40 at 44, 47-48. That, of course, was a civil case, but the criminal law has also adopted an objective test: Nydam v The Queen (1977) VR 430 at 445; R v Buttsworth [1983] 1 NSWLR 658 at 675.@ See also New South Wales Sugar Milling Co-operative Limited v Environment Protection Authority (1992) 75 LGRA 320 at 321.

Such negligence, however, can only relate to the foresight of the consequences of the particular action (Environment Protection Authority v N, at 355).

In the present case the defendant deposited used vehicle tyres on land leased by him and known as Lot 6 in Deposited Plan 701643 Schofield Road, Wyee, having an area of about 36.7 hectares. The defendant did so on each of the dates described in the charges. The tyres are contained in twenty-two mounds or stacks which are estimated to contain a total of between 50,000 and 60,000 tyres. It is not contended by the prosecutor that all of the 50,000-60,000 tyres were deposited on the five occasions specified in the charges. Those were occasions when tyres were observed being delivered to the land. It is clear that the defendant had been taking delivery of tyres for some time. The defendant admits that the tyres were deposited on the land without lawful authority.

The defendant received the tyres from tyre disposal carters or dealers, who paid him to be allowed to deposit used tyres on the land. In a record of a conversation between an officer of the prosecutor and the defendant, the defendant admits that he arranged for the tyres to be brought onto the property. He states that he was storing the tyres for use in the construction of a moto-cross track, for yabby farms, for the wall of a dam and for resale. The defendant admits to dealing in discarded used tyres.

I am satisfied beyond a reasonable doubt that the depositing of tyres on the land was likely to harm the environment. Evidence adduced by the prosecutor, which I have no reason not to accept, shows that the depositing of tyres has resulted in the destruction of native vegetation and the movement of vehicles in that pursuit has destroyed the native understorey vegetation. Photographic and video tape evidence taken on behalf of the prosecutor shows a dramatic effect on the aesthetic factors of the surroundings. I am satisfied that these consequences were likely to result from the depositing of tyres in the sense described in par 16 above, that such likely result was to cause Aharm to the environment@ as described in par 14 above, and that the environment thus harmed was within the definition of >environment= described in pars (b) and (c) of s 4 of the Act, noted in par 15 above.

Moreover, there is evidence which I also have no reason not to accept, that the vegetation on the land is very flammable, that there is evidence of previous bush fires through the area, that rubber tyres are themselves flammable, that tyres burn with a large amount of black smoke, that a large number of chemical compounds may be present in the smoke, that exposure to smoke from such fires is known to be a human health hazard, and that burnt tyres may leave an oily residue which in turn would contaminate the soil. The burning of tyres is also thus likely to harm the environment. In the record of the conversation described in par 19 above, the defendant acknowledged the fire hazard presented by the depositing of tyres in the bush on the subject land.

In considering whether the defendant acted negligently in depositing tyres on the land in a manner which is likely to harm the environment, I am satisfied beyond a reasonable doubt that a reasonable person in the position of the defendant would have foreseen the likely harm to the environment described in par 20 above and would have foreseen the likely harm to the environment in the event of a fire as described in par 21 above. That is to say, I am satisfied beyond a reasonable doubt that the depositing of the tyres on the land was not only likely to harm the environment but the defendant, in depositing the tyres on the land, did so negligently.

The defendant denies, however, that he Adisposed@ of the tyres within the meaning of s 5(1) of the Act. Rather, he asserts that he was storing the tyres for reuse and for resale. It is submitted that this does not amount to disposing of the tyres in the sense of getting rid of them, being the sense described in par 11 above. Moreover, the defendant asserts that the tyres are not Awaste@ within the meaning of that word as noted in par 13 above. In particular, the defendant asserts that the tyres are not Arefuse@ within either par (b) or (c) of the definition of Awaste@.

I have described (in par 19 above) the uses for which the defendant says he was storing the tyres. There is further evidence to support the defendant=s contention that the tyres were neither Awaste@ nor Arefuse@. Mr W Fahy, a tyre disposal carter and dealer in used tyres, said in evidence that he delivered tyres to Mr Anning at his property in Schofield Road, Wyee on many occasions between August and November 1995. In his evidence in chief, Mr Fahy said that whilst a proportion of the tyres are suitable for recycling, most are only waste. In cross-examination, however, Mr Fahy stated that he was personally aware of used tyres being employed for the following purposes:

C. To reclaim land as an alternative to solely using soil as landfill

C. For horse corrals or horse compounds used for the training of horses

Mr Fahy described a yabby farm for which he provided used tyres, at which tyres were then placed across the bottom of dams to provide habitat for yabbies. In that particular case there were twelve dams and about 120,000 used tyres were utilised for the purpose. Mr Fahy also believes that there are now processes for reclaiming the component parts of tyres, although he does not believe that they existed at the time of these offences.

The defendant identified three of the abovementioned purposes for which he personally intended to use the tyres. There is evidence that a commencement had been made on the construction of a moto-cross track on the subject land. I have referred above to the defendant=s admission that he was dealing in used tyres and that some were intended for resale. It is possible that purchasers of tyres may in due course also put them to one or more of the uses identified by Mr Fahy.

The first question is whether the defendant was Adisposing@ of the tyres within the meaning of s 5(1) of the Act. I have referred (in par 11 above) to the ordinary meaning of Ato get rid of@ adopted by Hunt CJ at CL in Environment Protection Authority v N. It might be suggested that this imports a final disposal. This suggestion was not accepted in R v Metropolitan Stipendiary Magistrate, Ex parte London Waste Regulation Authority [1993] 3 All ER 113, which concerned the term >disposed of= in s 3(1)(b) of the Control of Pollution Act 1974 (UK). In rejecting the suggestion, Watkins LJ, Auld and Laws JJ said (at 121):

AWhy should that be so? An article may be regarded as disposed of if it is destroyed or if it is passed on from one person to another; the ordinary sense of the term, certainly in a context such as that of this Act, rests in the notion of getting rid of something. It has, in our judgment, no more to do with finding a >final resting place= than has the word >deposit=Y

For all these reasons, we feel compelled to conclude in principle that s 3(1) is not concerned only with final deposits or disposals. To hold otherwise would, we think, involve an unnecessary erosion of the efficacy of the Act which, in our judgment, is as much concerned with the environmental damage that may be caused by a waste transfer station as with the effects created on or by a site where the waste reaches its =final resting place=.@

I am prepared to adopt these views. They are to be preferred to the defendant=s assertion that Ato get rid of the tyres@ necessarily imports disposal at a final resting place. The ordinary sense of the term Adispose of@ in the context of the Act, namely that of getting rid of something, does not necessarily denote a Afinal resting place@. If it were otherwise then the purpose of s 5(1) of the Act would be defeated. It would mean that if a person were to Aget rid of@ waste by disposing of it at a place other than its final resting place, the objective of avoiding harm to the environment by the disposal of waste would be liable to be defeated.

The prosecutor has therefore made out four of the five requirements of s 5(1) of the Act. It has been proved that the defendant=s placement of the tyres is >disposal= within the meaning of s 5(1), that he had no lawful authority for the disposal of the tyres, that he acted negligently in so disposing of the tyres and that the disposal of the tyres caused harm to the environment within the meaning of s 5(1).

The next question is, whether in the light of the evidence of the uses to which used tyres can be put, including the uses to which the defendant intends to put the tyres, can it be said that the used tyres are Awaste@ as defined in the Act? Reference was made to authorities on the meaning of the word Awaste@ and to dictionary meanings of the word. None of those references, however, are relevant. In the present case the Act provides its own definition, noted in par 13 above. Relevantly, Awaste@ means Atrade waste Y that comprises refuse from any industrial, chemical, trade or business process or operation, including any building or demolition work@ (par (b) of the definition); or Agarbage, being all refuse other than trade waste and effluent@ (par (c) of the definition).

The evidence in this case does not disclose the source or sources of the tyres. It is not known whether they are used tyres from private or domestic vehicles, from recreational vehicles, from business or commercial vehicles, or from farm vehicles. Accordingly, I cannot conclude that they come from any industrial, chemical, trade or business process or operation as described in par (b) of the definition. In any event, in the light of the evidence of the uses for used tyres, to which I have referred, can it be said that the tyres are Arefuse@? If they can be described as Arefuse@ then they would probably come within par (c) of the definition of Awaste@, on the assumption that they do not come within par (b) of that definition. Although par (c) of the definition of waste is said to mean Agarbage@ that word is expressly confined to Abeing all refuse other than trade waste and effluent@.

I have been referred to the meaning of the noun Arefuse@ in the Macquarie Dictionary, in which it is defined as follows: AThat which is discarded as worthless or useless; rubbish@. In the Shorter Oxford Dictionary it is relevantly defined as: AThat which is cast aside as worthless; rubbish or worthless matter of any kind.@ I am prepared to accept these definitions as being the ordinary meaning of the word Arefuse@.

There is no evidence in the present case which establishes that used vehicle tyres are either worthless or useless, or that they are rubbish. Such evidence as has been adduced is to the contrary. The uses described by Mr Fahy in his evidence, including the particular uses nominated by the defendant as his intended uses of the tyres, demonstrate a continuing utility for used tyres, being uses for which there is an apparent demand. In short, I am not satisfied beyond a reasonable doubt that the tyres in this case can be described as Awaste@ within the meaning of s 5(1) of the Act.

The abovementioned conclusion is, however, not necessarily the end of the matter. Subsection (3) of s 4 of the Act provides:

AFor the purposes of this Act, a substance is not precluded from being waste merely because it may be refined or recycled.@

I have concluded that the tyres disposed of by the defendant do not come within the definition of >waste= in pars (a), (b) or (c) of that definition in s 4 of the Act. In such instances one goes to subs (3) of s 4 as a secondary test of what constitutes waste for the purposes of the Act because this subsection relates to the Act as a whole and is not a continuation of the definition of >waste= in s 4. Subsection (3) is a guide on how to interpret the definition of >waste= and indicates that if one precludes a substance from satisfying the definition of >waste= in s 4 merely because it may be refined or recycled then one is interpreting the term >waste= contrary to the intention of subs (3) of s 4.

It is therefore appropriate that I consider this secondary test outlined by the Act. This provision is somewhat curious, since it relates to Aa substance@, which is not a word which is used in the definition of waste. The ordinary meaning of the word Asubstance@ is, according to the Macquarie Dictionary, relevantly: A1. that of which a thing consists; matter or material; 2. a species of matter of definite chemical composition@; and, according to the New Shorter Oxford Dictionary, it is relevantly A2. that of which a physical thing consists; the essential (especially solid) material forming a thing; Y 5. a particular kind of matter, esp one of a definite chemical composition; Y 13. that which gives a thing its character; that which constitutes the essence of a thing; the essential part, essence.@ I am prepared to accept these meanings as being the ordinary meaning of the word Asubstance@. It seems to me that a substance may be that which makes up a thing, but is not the thing itself. I am thus inclined to the view that a tyre, although made up of a number of substances, would not itself be described as Aa substance@.

Neither can it be said that the uses intended for the tyres amounts to them being Arefined@. Again, I am persuaded to adopt dictionary definitions, relevantly A1. to bring to a fine or a pure state; free from impurities; to refine metal, sugar, petroleum, etc; Y 3. to bring by purifying, as to a finer state or form@ (The Macquarie Dictionary); and A1. Purify (a metal) by removing oxides, gas etc; and also Y 3. free from impurities; purify, cleanse; esp purify (oil, sugar etc) by a series of special processes@ (The New Shorter Oxford Dictionary). As I have said, none of these meanings would apply to the uses intended for the tyres as described in the evidence.

I also have a doubt as to whether any of the uses intended for the tyres could be said to be a recycling of them. To recycle is Ato treat (waste, empty bottles, old tins, etc) so that new products can be manufactured from them@ (The Macquarie Dictionary) and A1. return to a previous stage of a cyclic process; convert (waste) into or into a useable form; use again with little or no alteration;@ also, Areclaim (a material) from waste@ (The New Shorter Oxford Dictionary). There is no doubt that the intended uses of the tyres described in the evidence amounts to a >re-use= of them, but I am not convinced that such re-use would be described as recycling, particularly having regard to The Macquarie Dictionary meaning of Arecycle@. Even if I am wrong and the intended uses could be described as a recycling of the tyres, I nevertheless remain unconvinced that the tyres can be described as Aa substance@.

Accordingly, I have come to the conclusion that the used vehicle tyres in this case are not Awaste@ pursuant to either the definition of >waste= in s 4 or pursuant to the provisions of subs (3) of s4, so that the defendant has not committed any offences against the Act by depositing the tyres on the land.

I should emphasise, however, that this conclusion relates only to the present charges. As mentioned in par 13 above, the definition of Awaste@ was amended on 22 December 1995 so as to include waste within the meaning of the Waste Minimisation and Management Act 1995. That Act contains a definition of >waste= in wider terms than under the Environmental Offences and Penalties Act. The definition appears to be wide enough to include used vehicle tyres intended for re-use in the manner proposed by the defendant. As I have said, the present definition of Awaste@ does not apply in this case, since the acts said to amount to offences against s 5(1) of the Act occurred before the definition was amended. It does not necessarily follow, therefore, that if the offences were to be now repeated the charges would have to be dismissed.

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