Relevant definition - first period
23Although the written submissions filed for the Authority asserted that the trial judge erred in concluding that the relevant definition in the first period was that found in s 143(4), no substantive argument was presented in support of that assertion and it should be rejected. The relevant definition of "waste" for the purposes of s 143(1), prior to 1 May 2006, was that contained in s 143(4). The trial judge was correct in that respect and question 6 should be answered affirmatively.
24Questions 1 and 3 were formulated by reference to the factors relevant to determining whether a particular substance was "waste" for the purposes of s 143(4); question 8 asked whether the second sentence in the definition of "waste" in s 143(4) had little relevance in the circumstances of the case. These questions do not directly articulate the question of law which needs to be determined and cannot readily be answered in the terms in which they are asked. In particular, to separate one part of the definition from the rest is to invite error. In many cases, and particularly in the present case, the whole statutory context is critical to understanding the language used.
25Broadly speaking, the approach adopted by the trial judge was erroneous because it focused upon an objective assessment of whether the material transported was capable of being used for a specific purpose. The correct approach is to consider whether the owner of the material at the time transportation commenced had a continuing use for the material. If the owner did not, the material was waste, at least until it was applied to a new use: see Shannongrove at [29] and [34]-[38].
26In ordinary parlance, waste refers to unwanted by-products of a process and to an object (or substance) which the owner had, but no longer has, a use for and discards or abandons. In respect of the first category, being unwanted by-products of a process, the question is not whether they are "capable" of being used for some other purpose, nor whether there is a "market" for such material. Similarly, in relation to items for which the owner had, but no longer has, a use, the question is not whether some other person might conceivably want the item. Thus, in ordinary parlance, there is a clear distinction between a used car which is provided as a trade-in on a new vehicle or which is advertised for sale, and a vehicle which is abandoned by the owner. The last example, in contradistinction to the first two, is aptly described as "waste", even though a salvage business might be able to strip the vehicle for parts or sell it as scrap metal.
27The words "unwanted" and "surplus" require reference to the state of mind of some person. The concepts do not turn on any objective characteristic of the substance, although, as a matter of evidence, it may more readily be inferred that some substances are wanted than others. The relevant individual could be one of three people:- (a) the owner immediately prior to transportation; (b) the person carrying out the transportation, or (c) the owner of the property to which the substance is transported: Shannongrove at [12].
28The ordinary reading of the provision is that the relevant individual is the "owner" when transportation was arranged. That reading is confirmed by the fact that it is not only the person who transports the substance, but also the person who is the owner of the substance to be transported, and (after 1 May 2006) causes or permits it to be transported, who is guilty of an offence: Shannongrove at [29]. As explained further in Shannongrove, the fact that the substance was "wanted" by the carrier, in the sense that it was part of its business to transport such material, cannot render it other than waste. If that were not correct, there would be virtually no case in which an offence would be committed under s 143(1). Similarly, if it were decisive (or even relevant) that the material was wanted by the owner or controller of the place to which it was taken, the apparent purpose of the provision would likewise be subverted: Shannongrove at [36]-[38].
29The respondent in the present case sought to achieve a different result by reliance on two circumstances. The first was that the product of demolition or excavation which was being transported was required by the carrier (and the owner of the place to which it was taken, if that were relevant) for a specific purpose, which constituted part of the business of the carrier, namely the construction of the internal access road at the Williamtown property. Secondly, the respondent relied upon the fact that it sorted the material on the site of the original owner into that which was to be re-used as road base and that which was not. The latter (which was not the subject of the present charges) was conceded to be "waste", while the former was said not to satisfy the statutory definition of "waste".
30The fact that some waste is capable of being (re)processed, re-used or recycled suggests that at some point in time it may no longer be waste. It is necessary to determine when unwanted or surplus substances change their character from waste to non-waste. An indication as to when that may occur is to be found in the language of the offence-creating provision. Thus, it is an essential element of the offence that the waste is transported to a place which "cannot lawfully be used as a waste facility for that waste". Section 5 of the Act, read with Schedule 1, identifies a range of activities which require a licence issued by the Authority, authorising the activity to be carried on at specific premises. Throughout both periods (although it has since been amended), Part 1 of Schedule 1 identified "premises-based" activities. Various forms of "waste facilities" were included. More generally, the term "waste facility" is defined in the Dictionary to the Act to mean "any premises used for the storage, treatment, processing, sorting or disposal of waste (except as provided by the regulations)". (Before 1 May 2006, it referred to "reprocessing" rather than "processing".)
31Seen in this statutory context, the statement in the definition of "waste" (in s 143(4)) that "[a] substance is not precluded from being waste merely because it may be reprocessed, re-used or recycled" may be seen to be central to the characterization of a substance. Thus, s 143(1) prohibits transport of waste to a place other than a relevant "waste facility", a "waste facility" being any premises where such waste may lawfully be stored, treated, reprocessed, sorted or disposed of. The fact that a substance is being taken to a place where it will be re-used or recycled does not affect its characterization as "waste".
32The section thus promotes the re-use and recycling of waste - see s 3(d)(iii) - and, to the extent that waste material may be harmful, its processing or elimination: s 3(d)(ii) and (iia). Recognition of these purposes assists in determining whether, and if so when, that which is waste in the hands of the former owner ceases to be waste. In the case of old newspapers, put out on the street for recycling, their mere collection by a contractor will not prevent them being waste, nor permit the contractor to transport them to some place other than a waste facility licensed to recycle paper waste. In the present case, that the material transported was unwanted by the original owners, appears to have been accepted: the respondent was employed by the owners to remove the material.
33The fact that the material might have resulted from activities undertaken by the respondent did not change that character, nor did the mere fact that the respondent sorted them on site. There is a difference between reprocessing, re-use or recycling, prior to transportation and merely identifying material which is capable of being reprocessed, re-used or recycled. The latter step merely identifies it as material (or a substance) which is capable of such re-use etc: it then falls within the second sentence of the definition of "waste". The steps taken in the present case were not sufficient to prevent it being waste at the time of transportation. "Sorting" the materials to set apart those which were to be re-used at a another place did not itself constitute that use, anymore than the separation by a residential landowner of materials into different forms of recycling for collection would have that effect.
34The owners of the property to which the materials were transported had a use for them, namely in the construction of a roadway over swampy land. However, the fact that they had a use for the material when it reached their property did not mean that the material ceased to be waste at some point before it reached their property. Neither did the fact that the respondent had been contracted to construct the roadway affect the characterisation of the material whilst in transit.