101 In Willtara, the company was charged with an offence under the Waste Minimisation and Management Act 1995 (now repealed) of disposing of waste on land without authority so to do. Willtara was a building contractor engaged to erect a residential flat building. For the purpose of construction it excavated a considerable volume of soil and stockpiled that soil on adjoining land pending the erection of the building, after which the soil was intended to be used as backfilling and for other purposes on the development site. One of the issues to be determined was whether the stockpiled material was "waste" within the meaning of the Waste Minimisation and Management Act which contained a definition identical in terms to that found in paragraph (b) of the definition in the Dictionary to the present Act. Bignold J held (at 153) that the stockpiled material was not "discarded, rejected, unwanted, surplus or abandoned". In so doing, he said this (at [82]):
"I think the defence submission in relation to par (b) of the definition must be upheld in the light of my findings of fact, particularly my finding that the defendant, in stockpiling the material, always intended to redeploy it in backfilling and other operations in carrying out the approved development project."
102 The decision in Owen v Willtara is clearly distinguishable. The entity responsible for "creating" the material which was claimed to be waste had never discarded it and, understandably, had always wanted to use it as part of the process which had initially caused it to be stockpiled. That position stands in marked contrast to the present case where Eastern Creek Operations did not want the liquid which was the by-product of its waste processing operation. That material was always intended to be discarded.
103 In support of its submission as to the point in time at which the existence of "waste" should be determined, the defendant also relied upon the decision of the English High Court of Justice in Environment Agency v Inglenorth Limited [2009] EWHC 670 (Admin). There, a Divisional Court was required to determine a case stated by the Stockport Justices who had acquitted the defendant of offences under the Environmental Protection Act 1990 (UK). The essence of the two offences with which Inglenorth had been charged was the deposit of "controlled waste" on land for which a waste management licence was not held. The "controlled waste" was demolition material referred to in the judgment as "hardcore".
104 In Inglenorth, the owner of a garden centre conducted his business from two separate sites. On one site he demolished a greenhouse in order to provide space for the erection of a new building. At the time of demolition it was his intention to use the hardcore from that demolition as fill at his second garden centre site. Inglenorth transported the hardcore to this second site and it was the deposition of that material at that site which founded the charges brought against it. At the time of transporting the waste, Inglenorth was aware of the intention of the garden centre proprietor to use the hardcore at his second site. There being no waste management licence in force for that site, the case ultimately required a determination as to whether the hardcore was "waste" within the meaning of the Environmental Protection Act (UK). In effect, the legislation defined that term to comprehend any substance or object in identified categories "which the holder discards or intends or is required to discard."
105 The leading judgment in Inglenorth was delivered by Sir Anthony May. While acknowledging that hardcore derived from a demolition site may often be regarded as waste, he indicated that the circumstances of a particular case may dictate otherwise (at [17]). Ultimately, the facts of the particular case enabled his Lordship to determine "otherwise", essentially because of the finding by the Magistrates that the holder of the waste, namely the garden centre proprietor, had determined not to discard the material, that determination having been made prior to the demolition of the greenhouse which was the source of the hardcore. Thus, it was not "waste" at the time of its deposition by Inglenorth at the second garden centre site.
106 The decision in Inglenorth does no more than demonstrate that the determination as to whether a substance is "waste" within the statutory definition will almost always involve a close examination of the facts pertaining to the particular substance and the circumstances in which it was created. The decision in that case is consonant with the decision of Bignold J in Owen v Willtara Constructions Pty Ltd. For the reason that I distinguish that case from the present, so also I distinguish the decision in Inglenorth. The intention of the garden centre proprietor, ultimately decisive in that case, is the antithesis of the intention held by Eastern Creek Operations in the present case. Inglenorth provides no support for the defendant's submissions.
107 I have earlier determined that the liquid transported by the defendant from the UR-3R Facility was an unwanted, surplus by-product of the waste treatment process there carried out. I have also indicated that the defendant admitted transporting excess process water but not "digester liquid", "denitrification reactor waste", "percolate" or "fire water". The transportation of each of those liquids by the defendant was identified in the Transportation Spreadsheet. In Exhibit B, the defendant accepted "that the information in the Transportation Spreadsheet is accurate" save that the detail as to volume and inclusion of any liquid other than excess process water was erroneous.
108 In his affidavit sworn 31 July 2009 Mr Bonanno gave evidence as to the preparation of the Transportation Spreadsheet, including the material from which it was compiled. It clearly identified the date of each load, the weight of such load and the description of liquid that was transported. Although Mr Bonanno was cross-examined on behalf of the defendant, his evidence as to the preparation of and the contents of the Transportation Spreadsheet was not challenged. None of the evidence called on behalf of the defendant cast doubt upon that evidence. I therefore have no basis upon which to doubt its accuracy, including the accuracy of descriptions of the liquid transported by the defendant.
109 Finally, I should indicate that after judgment in this matter had been reserved, a letter was received by my Associate from counsel for the defendant drawing attention to the decision of the High Court in Kirk v Industrial Relations Commission of NSW [2010] HCA 1; (2010) 239 CLR 531. It was indicated that the letter was not sent with the consent of counsel for the prosecutor. The letter stated that the judgment of the plurality in Kirk at [15] - [19] supported its submission "that the time and place for determination of an offence, if any, was at the property to which the material was transported, for 'use'".
110 Despite the irregularity attending the reference of this matter to me (the decision in Kirk was published and available well before the hearing of this matter) I have read the paragraphs to which I have been referred. I do not discern from those paragraphs any statement of principle which would require me to alter my approach to the application of the facts in this case to the definition of "waste" found either in s 143 or in the Dictionary to the Act. The observations of the High Court as to the provisions of s 53 of the Occupational Health and Safety Act 1983 and the obligation that it cast to frame the statement of an offence said to have been committed under ss 15 or 16 of that Act do not seem to bear upon the inquiry upon which I am required to embark in order to determine whether the definition of "waste" under the Act has been engaged on evidence adduced before me. Had I considered the reference on behalf of the defendant to have any impact upon the submissions otherwise made to me at the hearing, I would have re-listed the matter for further argument.
111 For all of these reasons, I find beyond reasonable doubt that the liquid transported by the defendant from the UR-3R Facility at Eastern Creek to Marylands during both charge periods was "waste" within the meaning of the Act. Further, I find beyond reasonable doubt that the total tonnage of waste so transported by the defendant was 5,659.31 tonnes comprising -
(i) 4,975.47 tonnes of excess process water;
(ii) 542.46 tonnes of digester liquid;
(iii) 83.6 tonnes of denitrification reactor waste;
(iv) 29.16 tonnes of percolate; and
(v) 28.62 tonnes of fire water.
Marylands was being used as a waste facility
112 This element of the offence was not separately addressed by the defendant. Its submission conflated this element with the fourth element of the offence, namely whether the place to which waste was transported, Marylands, could lawfully be used as a waste facility. As will be apparent when I address that fourth element of the offence, the defendant focussed its submissions upon Sch 1 of the Act and the reference contained in that Schedule to "waste facilities".
113 Clearly, the question anterior to consideration of the classes of waste facility identified in Sch1 as requiring an environment protection licence is whether the activity in question is a "waste facility" within the meaning of the Act. That requires reference to the Dictionary to the Act which defines the term in the manner set out at [16] and [17]. It will be observed that the only amendment to the definition effected on 1 May 2006 is substitution of the word "processing" for the word "reprocessing" in the former definition. Nothing, for present purposes, turns upon that amendment.
114 The two questions posed for determination by the definition are first, whether Marylands had been used for disposal of waste, and second, whether any exception identified in the Regulations applies. As to the first of those questions, it seems to me that the answer is clear.
115 I have already determined that the liquid transported to the site from the UR-3R Facility was "waste" within the meaning of the Act. The fact that soil injection of that waste had repeatedly taken place at Marylands indicates that the property was being used for the disposal of that waste. As I will more fully discuss when dealing with the fourth element of the offence, the use of the property for soil injection was a repeated activity throughout both the first and second charge periods.
116 During the first charge period, the Protection of the Environment Operations (Waste) Regulation 1996 was in force. The Protection of the Environment Operations (Waste) Regulation 2005 commenced on 1 September 2005, although many of its provisions did not commence until 1 March 2006. It was the operative Regulation for part of the second charge period. Neither of those Regulations imposed any relevant qualification upon the meaning of "waste facility", as that term was defined in the Dictionary to the Act. It was not contended otherwise by either party.
117 Accordingly, I am satisfied beyond reasonable doubt that Marylands, being the place to which waste from the UR-3R Facility was transported by the defendant during each charge period, was being used as a "waste facility" within the meaning of the Act.
No lawful use as a waste facility
118 The defendant accepts that by dint of s 143(2) of the Act, it bears the onus of proving that 'Maryland' could lawfully be used as a waste facility for the liquid waste transported from the UR-3R Facility. It seeks to establish the lawfulness of its use on two bases. First, it submits that upon the proper application of the facts to the relevant provisions of Sch 1 to the Act, Marylands was not a "waste facility" for which an environmental protection licence was required. Secondly, it relies upon the Guidelines to suggest that sufficient doubt attends the need for a licence for its activities such that those doubts would be resolved in its favour, thereby resulting in its acquittal of the present charges.
119 The prosecutor submits that Marylands could not lawfully be used as a waste facility within the meaning of the Act because it was a waste facility which was required to be licensed under the Act but was not, in fact, so licensed. Reference is made to s 48 of the Act which identifies by reference to Sch 1 the premises for which a licence is required. Part 1 of Sch 1 is headed "[a]ctivities premises-based". The opening paragraph of that Part is in the following terms:
"The activities referred to in this Part are activities that are premises-based (ie the occupier of the premises at which the activity is carried on must be the holder of a licence authorising the activity to be carried on at those premises)."
120 Beneath the listing of the item "Waste facilities" in Pt 1 of Sch1, cl (1) refers to "[a] waste facility that is of any one or more of the following classes". The class of facility identified in paragraph (f) is then included in the terms that I have quoted at [18]. As I have also recorded at [20], the defendant acknowledges that none of the exceptions stated in paragraph (f) have present application.
121 However, the defendant relies upon one of the further exceptions to those forms of waste facility identified in Sch 1 to the Act as requiring a licence, being the exception identified in cl (3)(d1) under the item "Waste facilities". That clause is as follows:
"(3) The following premises are not waste facilities for the purpose of this item:
…
(d1) premises (being premises in … the Sydney metropolitan area) on which any one or more of the following types of organic waste (and no other type of waste) is applied to land for agricultural … purposes:
(i) garden waste,
(ii) biosolids categorised as Unrestricted Use in accordance with the criteria set out in the Biosolids Guidelines,
(iii) biosolids characterised as Restricted Use 1, 2 or 3 in accordance with the criteria set out in the Biosolids Guidelines …
(iv) liquid food waste,
(v) manure,
(vi) treated grease trap waste from the preparation or manufacturing of food,
(vii) any mixture of the types of wastes specified in subparagraphs (i) - (vi) … ".
122 The defendant acknowledges that in order to sustain its reliance upon cl (3)(d1), it is necessary to establish, on the balance of probabilities, that the constituents of the waste transported from Eastern Creek to Marylands can not only be categorised as "organic waste" and no other type of waste but also that it must be organic waste of the type identified in one or more of paragraphs (i) to (vii).
123 I will assume for the purpose of consideration that the liquid transported by the defendant is "organic waste". Making this assumption, it is first necessary to ask whether a component of it is "garden waste": cl (3)(d1)(i). The term "garden waste" is defined in Div 2 of Pt 3 of Sch 1. Relevantly, the term is defined to mean "branches, grass, leaves, plants, loppings, tree trunks, tree stumps and the like, and includes any mixture of those materials". Clearly, the definition does not comprehend those materials in the form of a liquid such as that produced at the UR-3R Facility.
124 Paragraphs (ii) and (iii) of subclause (d1) each make reference to biosolids, categorised in a particular way by reference to the Biosolids Guidelines. The defendant placed considerable emphasis on these paragraphs as founding its submission that cl (3)(d1) was engaged. However, before considering any question of categorisation, it is first necessary to consider whether the liquid waste in question comprises "biosolids" in any form.
125 The word "biosolids" is also defined in Division 2 of Pt 3 of Sch 1. It is defined to mean -
"the organic product that results from sewage treatment processes (namely, the material referred to alternatively as sewage sludge)".
126 The parenthetical limitation expressed in this definition is important. It will be recalled from my earlier recitation of the evidence that Mr Smith, called on behalf of the defendant, asserted that the treatment process at the UR-3R Facility involved, at least in principle, a process identical to that undertaken in the treatment of sewage. However, his evidence in cross-examination was that the liquid residue resulting from the UR-3R process was not sewage sludge (see [69]). The parenthetical limitation expressed in the definition of "biosolids" to which I have referred does, to my mind, render it imperative that the material in question be capable of identification as sewage sludge before that material can be categorised as "biosolids" for the purposes of the Act. So much is made clear by use of the adverb "namely" in the definition.
127 In final submissions the defendant recognised the difficulty which both the definition and the evidence of Mr Smith posed for it but sought to maintain its submission that paragraphs (ii) and (iii) were engaged because of the similarity of process from which the UR-3R waste liquid resulted. I do not agree. Unless one is able to identify the material as being sewage sludge, the material does not meet the definition of "biosolids" with the result that paragraphs (ii) and (iii) are not engaged.
128 In an endeavour further to address the difficulty with its submission that the liquid waste in question is or contains biosolids, when applying the statutory definition, the defendant sought to gain support from the provisions of the Biosolids Guidelines which were tendered in the proceedings (Exhibit 6). However, in my opinion, the Biosolids Guidelines do not assist the defendant. My reasons for so determining are as follows:
(i) those guidelines cannot be used to qualify the definition of "biosolids" contained in the Act, unless there is a provision in the Act itself enabling such a qualification to operate and there is no such provision;
(ii) the fact that reference is made in the Act to the categorisation of biosolids by reference to the Biosolids Guidelines does not provide any relevant qualification to the statutory definition of "biosolids";
(iii) the Biosolids Guidelines are expressed to be limited "to the land application and disposal of biosolids derived from sewage treatment plants" (section 1.2): the liquid in question is not so derived;
(iv) the Glossary to the Biosolids Guidelines describes "biosolids" as being "(p)rimarily an organic solid product produced by the municipal sewage treatment process, previously referred to as sewage sludge". The liquid transported by the defendant is neither produced by a municipal sewage treatment process, nor is it a substance previously known as sewage sludge. Moreover, it is not primarily a solid product.
129 The term "liquid food waste" referred to in (3)(d1)(iv) is also defined in Division 2 of Pt 3 of Sch 1 to the Act. It is defined to mean "food waste in liquid form, but does not include food waste to which liquid has been added." The term "food waste" is, in turn, defined in the same Division to mean:
"(a) the by-products of any one or more of the following activities:
(i) the preparation or manufacturing of food (including beverages),
(ii) the processing of meat, poultry or fish, or