Environment Protection Authority v Terrace Earthmoving Pty Ltd

ENVIRONMENTAL PROTECTION - meaning of "waste" - offence relating to transportation of waste - definition of waste amended between two charge periods - waste defined in first charge period to include any "unwanted or surplus" substance - whether objective assessment required of capability of material to be reprocessed etc - whether state of mind of owner immediately prior to transport determinative - when unwanted or surplus substance changes character from waste to non-waste - where respondent had sorted material prior to transportation - relevance of intentions of transporter and recipient of material

ENVIRONMENTAL PROTECTION - offence of transporting waste - meaning of "transport" - whether material must be deposited at place to complete offence - whether existence of separate offence of allowing land to be used as waste facility relevant to determining elements of offence of transporting waste - defence to charge if material not deposited

STATUTORY INTERPRETATION - construction of "waste" - offence relating to transportation of waste - definition of waste amended between two charge periods - dictionary definition applicable to second charge period - definition includes multiple limbs - reliance solely on one limb - need to consider whole definition, not constituent parts in isolation

WORDS AND PHRASES - "waste" - Protection of the Environment Operations Act 1997 (NSW), s 143

WORDS AND PHRASES - "unwanted or surplus" - Protection of the Environment Operations Act 1997 (NSW), s 143 Legislation Cited: Crimes Act 1900 (NSW), ss 417, 417A Criminal Appeal Act 1912 (NSW), s 5AE Protection of the Environment Operations Act 1997 (NSW), ss 3, 115, 143, 144, 169, 241; Sch 1, Pt 1, Pt 3 Cases Cited: Environment Protection Authority v HTT Huntley Heritage Pty Ltd [2003] NSWLEC 76; 125 LGERA 332 Shannongrove v Environment Protection Authority [2013] NSWCCA 179. Category: Principal judgment Parties: Environment Protection Authority (Applicant) Terrace Earthmoving Pty Ltd (First Respondent) Geoffrey James Page (Second Respondent) Representation: Counsel:

J L Glissan QC/M T England (Applicant) T F Robertson SC/T G Howard (Respondents) Solicitors:

Gordon Plath, Department of Environment, Climate Change and Water (Applicant) Mallik Rees Lawyers (Respondents) File Number(s): CCA 2012/387686 Decision under appeal Jurisdiction: 9106 Citation: Environment Protection Authority v Terrace Earthmoving Pty Ltd & Page [2012] NSWLEC 216 Date of Decision: 2012-09-21 00:00:00 Before: Craig J File Number(s): 2009/50042-3; 2009/50044-5

Judgment 1BASTEN ACJ: The Environment Protection Authority commenced criminal proceedings against Terrace Earthmoving Pty Ltd and Geoffrey James Page, a director of the company. Each of the charges alleged conduct by the company in contravention of s 143(1) of the Protection of the Environment Operations Act 1997 (NSW) ("the Act"), which prohibited transport of waste to a place that cannot lawfully be used as a waste facility for that waste. If the company contravened the provision, a director of the company is also taken to have contravened the provision: s 169(1). For present purposes, nothing turns on the particular defences available to a director because the primary judge held that the company had not contravened s 143. (Unless it is necessary to refer to the director, it is convenient use "the respondent" to refer to the company.) 2Terrace Earthmoving undertook demolition and excavation work on building sites and removed unwanted by-products of those activities. It also carried on road-building on private land and, for that purpose, used material removed from demolition sites to form the base of a road. The question was whether the material removed from the building site following demolition was "waste" whilst being transported to private land to be used as road-base. 3Both the company and Mr Page were charged with conduct which extended over a period from 23 November 2005 until 1 March 2007. The Act was amended on 1 May 2006, significantly for present purposes, varying the definition of "waste". That circumstance led to separate charges being filed in respect of conduct from 23 November 2005 to 30 April 2006 and from 1 May 2006 to 1 March 2007. 4Each charge was laid by a summons filed on 11 August 2010 in the Land and Environment Court. The proceedings were conducted over two weeks in August 2010. On 21 September 2012 the trial judge, Craig J, delivered lengthy reasons, concluding that he was not satisfied beyond reasonable doubt that the material transported by the company in each period was "waste" within the meaning of s 143 of the Act: Environment Protection Authority v Terrace Earthmoving Pty Ltd & Page [2012] NSWLEC 216 at [243]. The charges were not formally dismissed, however, the Authority having indicated that it would invite the trial judge to submit questions of law for the consideration of this Court, pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW). In this Court the case was heard with a companion case raising similar issues: see Shannongrove Pty Ltd v Environment Protection Authority [2013] NSWCCA 179. 5Given the basis upon which the charges were to be dismissed, the only available question of law was whether the trial judge erred in his construction of the term "waste" in s 143. However, rather than identifying a question in those terms, and no doubt at the instigation of the Authority, on 13 December 2012 the trial judge submitted nine questions for determination by this Court. The questions contained footnotes referring to paragraphs in the judgment which, for ease of reference, have been incorporated into the questions, as set out below. 1. Was it open on the facts found by me to hold that in determining whether the substance was 'waste' within the meaning of section 143(4) of the POEO Act during the First Charge Period [at [183]] the factors relevant for consideration included: (a) the nature of the substance; (at [184]) (b) whether there was an identified demand for that substance; [at [184]] (c) circumstances in which the substance was obtained or removed from its source; [at [184]] (d) whether the substance was being transported to a place at which it was intended to be used for the purpose for which demand for the substance has been shown; [at [184]] (e) the period of time that elapsed or was expected to elapse after the substance was transported to the place of its intended use before it was put to that use; and [at [184]] (f) whether the substance was stockpiled at the place to which it had been transported? [at [221]] 2. Was it open on the facts found by me to hold that in determining whether the substance was 'waste' within the meaning of paragraph (b) of the definition in the Dictionary to the POEO Act during the Second Charge Period the determination made by me in relation to the definition of 'waste' in the First Charge Period remained apposite? [at [228]] 3. In determining whether the substance was 'waste' within the meaning of section 143(4) of the POEO Act during the First Charge Period should I have held that the only factors for consideration were: (a) the nature of the substance; and (b) whether the substance was 'unwanted' or 'surplus' in the hands of the owner or generator of that substance? 4. In determining whether the substance was 'waste' within the meaning of paragraph (b) of the definition in the Dictionary to POEO Act during the Second Charge Period should I have held that the only factors for consideration were: (a) the nature of the substance; and (b) whether the substance was 'discarded, rejected, unwanted, surplus or abandoned' in the hands of the owner or generator of that substance? 5. Was it open on the facts found by me to hold that the 'transport' of waste within the meaning of section 143 of the POEO Act to a place did not include the deposition of that substance at the place? [at [158]] 6. Was it open on the facts found by me to hold that the definition of 'waste' in the Dictionary to the POEO Act had no application during the First Charge Period? [at [170]] 7. Was it open on the facts found by me to hold that the definition of 'waste' in paragraph (a) in the Dictionary to the POEO Act had no application during the Second Charge Period? [at [227]] 8. Was it open on the facts found by me to conclude that the qualification expressed in the words "A substance is not precluded from being waste merely because it may be reprocessed, re-used or recycled" in Section 143(4) of the POEO Act was a limited one and did not change the determination that the substance transported by the First Respondent be 'unwanted' or 'surplus' in order to qualify as 'waste'? [at [214]] 9. Was it open on the facts found by me to hold that the Appellant had an onus to prove beyond reasonable doubt that lawful authority was required to use the Property as a waste facility for that waste, and only once that had been proved, did an onus shift to the First Respondent and the Second Respondent to establish that there was lawful authority for that purpose? [at [233] and [240]] 6Although the questions followed the order in which matters were addressed in the judgment, they need to be addressed by this Court by reference to the particular charges. Thus, questions 1, 3, 6 and 8 related to the first charge period; questions 2, 4 and 7 related to the second charge period, and questions 5 and 9 appear to relate to both.

Statutory provisions - first period 7During the first period, the substantive offence was identified as follows: 143 Unlawful transporting of waste (1) Offence If a person transports waste to a place that cannot lawfully be used as a waste facility for that waste: (a) the person, and (b) if the person is not the owner of the waste, the owner, are each guilty of an offence. ... (3C) Defence-waste not deposited It is a defence in any proceedings for an offence under this section if the defendant establishes that the waste transported by the defendant was not deposited by the defendant or any other person at the place to which it was transported. (4) Definitions In this section: ... owner of waste includes, in relation to waste that has been transported, the person who was the owner of the waste immediately before it was transported. waste includes any unwanted or surplus substance (whether solid, liquid or gaseous). A substance is not precluded from being waste merely because it may be reprocessed, re-used or recycled. 8The Dictionary also contained a definition of "waste" which commenced "waste (unless specially defined) includes...". The trial judge held that as s 143(4) provided its own definition for the purpose of that section, waste was "specially defined" for the purposes of the exclusion to the Dictionary definition: at [174]. The Dictionary definition therefore did not apply in respect of s 143(1). In reaching that conclusion, the trial judge noted that there were in fact only two places in the Act in which "waste" was given a definition separate from that in the Dictionary: one was s 143 and the other was s 115, in relevantly identical terms to s 143. If those were not examples of the term being "specially defined", the exclusion in the Dictionary definition had no function.

Statutory provisions - second period 9After 1 May 2006, the operative provision read as follows: 143 Unlawful transporting or depositing of waste (1) Offence If a person transports waste to a place that cannot lawfully be used as a waste facility for that waste, or causes or permits waste to be so transported: (a) the person, and (b) if the person is not the owner of the waste, the owner, are each guilty of an offence. 10The italicized words were added to the earlier form of the section. The defence in subs (3C) did not change, but the definition of "waste" in sub-s (4) was removed. From 1 May 2006, the relevant definition was that appearing in the Dictionary, which was amended to delete the words "unless specially defined". 11The definition of "waste" in the Dictionary was also amended from 1 May 2006 so that what had been paragraph (d) (referring to substances prescribed by regulations), became paragraph (e) and a new paragraph (d) in the following terms was inserted; it then read: waste includes: (a) any substance (whether solid, liquid or gaseous) that is discharged, emitted or deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment, or (b) any discarded, rejected, unwanted, surplus or abandoned substance, or (c) any otherwise discarded, rejected, unwanted, surplus or abandoned substance intended for sale or for recycling, reprocessing, recovery or purification by a separate operation from that which produced the substance, or (d) any processed, recycled, re-used or recovered substance produced wholly or partly from waste that is applied to land, or used as fuel, but only in the circumstances prescribed by the regulations or (e) any substance prescribed by the regulations to be waste. A substance is not precluded from being waste for the purposes of this Act merely because it is or may be processed, re-used or recycled. 12The various differences between the applicable definitions in each period are outlined in Shannongrove and need not be repeated. In brief, that discussion concluded with the proposition that the term "waste", as defined in both periods, refers to substances which were unwanted by their owner, or surplus to the needs of the owner and that whilst they might cease to be waste at some point if processed, re-used or recycled, the fact that such a course may be undertaken after transportation would not prevent the substance being waste in the hands of the owner and hence at the point at which transportation commenced.

Factual background 13The questions of law submitted to this Court came in the form of a case stated, accompanied by a statement setting out what were described as the judge's "findings of ultimate fact". In fact, that section provided a descriptive background to the case, as dealt with in the judgment. It commenced by identifying the "place" to which the waste the subject of the charges was transported. This was a rural property at Williamtown on which the owners proposed to construct an internal access road, which will be referred to below as "the Williamtown property". Although the statement set out findings of fact as to why the owners wished to construct the road, none of that is relevant for present purposes. 14In relation to the respondent company, Terrace Earthmoving, the judge noted his finding that its business activities "included earthmoving, land excavations, land clearing and building demolition" and that it had "also undertaken road construction". The judge found that Terrace Earthmoving had a contract with the owners of the Williamtown property to build an internal access road, which work commenced late in November 2005 and continued until March 2007. Critically for present purposes, the trial judge stated at [8]: "The fill material used for road construction was obtained from sites at which Terrace was carrying out demolition or excavation works. Demolition or excavated material was taken from those sites and transported to [the Williamtown property] in trucks belonging to Terrace. The material utilised generally comprised broken concrete, bricks, tiles, soil and rock." 15Critical to the finding that the substances transported were not waste, the trial judge held at [205]: "The fact that a dwelling was to be demolished or a site excavated did not have the consequence that all the material brought to ground as a result of demolition or material excavated to accommodate a new dwelling was, in either case, material that was unwanted or surplus at that site. I so conclude by reason of the deliberate process of separating materials so that those identified as being unwanted or surplus in the true and objective sense were set aside and taken to a landfill site. Those materials identified as serving a construction function for the purpose of the road or track to be upgraded on [the Williamtown property] were, having been so identified, set aside at their site of origin, loaded separately into trucks for transport, taken to [the Williamtown property] and within a short space of time placed on the road alignment and compacted as part of the road construction." 16The trial judge made additional findings to the effect that while the material was not needed on the site from which it was removed, it was capable of being reused and had value for purposes such as that for which it was in fact used, namely road base: at [207]-[208].

Basis of decisions at trial 17In respect of the first charge, the trial judge found that the relevant definition of "waste" was that contained in s 143(4): see [7] above. The critical issue in respect of the first charge was the manner in which the trial judge construed that provision; in substance, he treated the wants or needs of the owner of the material immediately prior to transportation as not determinative of the proper characterisation of the substance, but as a factor to be taken into account together with the suitability of the material for re-use or recycling and the fact that, at the time of transportation, the material was intended by the carrier to be re-used. Having noted the language of s 143(4) and the English language dictionary definitions of the ordinary meaning of "waste", the trial judge stated: "[178] As Terrace submitted, the determination as to whether a substance is 'unwanted' or 'surplus' is to be made on the basis that extends beyond the purview of a particular person or entity. An element of objectivity must be introduced in order to avoid an idiosyncratic and unintended result when seeking to apply the particular words or meaning to a given factual situation. ... [181] Nothing contained in the definition found in s 143(4) suggests the identity of the person or entity whose opinion determines that particular material is 'unwanted' or 'surplus'. This fact, coupled with the ordinary meaning of 'waste', to the extent to which it uses expressions different from those included in the statutory definition, point to the need for an element of objectivity when determining that material is waste." 18This approach led the trial judge to the following conclusion at [184]: "Without intending to be exhaustive, the factors relevant for consideration are: (i) the nature of the substance; (ii) whether there is an identified demand for that substance; (iii) circumstances in which the substance is obtained and removed from its source; (iv) whether the substance is being transported to a place at which it is intended to be used for the purpose for which demand for the substance has been shown; and (v) the period of time that elapses or is expected to elapse after the substance is transported to the place of its intended use before it is put to that use." 19Later, in explaining why the material transported to the Williamtown property was not waste, the trial judge stated at [210]: "The 'commonsense' approach to the application of the definition of 'waste' which I have identified, seems to me to be consistent with a purposive approach to the interpretation of the legislation as a whole. One of the expressed objects of the POEO Act, as expressed in s 3, is 'to assist in the achievements of the objectives of the Waste Avoidance and Resource Recovery Act 2001'. An object of the latter legislation, as expressed in s 3 of that Act, is to ensure that resource management options are considered in the context of 'resource recovery (including reuse, reprocessing, recycling and energy recovery)'. These legislative provisions support the need to focus upon a number of factors of the kind earlier identified when determining whether material is 'waste' rather than making the assessment wholly upon the position of the party or entity initially determining the material surplus to its requirements and therefore unwanted by it." 20The trial judge dealt separately with the second sentence in the definition of "waste", stating at [214]: "The last sentence in the definition of 'waste' found in s 143(4) has not been overlooked by me. It is the qualifying sentence to the definition, providing that a substance is not precluded from being waste 'merely because' it is capable of being 'reprocessed, re-used or recycled.' I regard the qualification so expressed as being a limited one. I take it to mean that the capacity of the material in question to be 'reprocessed, re-used or recycled' does not, of itself, determine that the material is not 'waste'. However, the qualifying sentence does not result in the ordinary meaning of 'waste' being ignored and, in particular, it does not change the determination that the material or substance be 'unwanted' or 'surplus' in order to qualify as 'waste'." 21In relation to the second charge, the trial judge noted that the prosecutor had relied only upon paragraphs (a) and (b) of the Dictionary definition: at [224]. Although the respondent asserted the correctness of that proposition, it is doubtful whether the argument was so constrained. Thus, both parties and the trial judge gave careful attention to the reasoning of Pearlman J in Environment Protection Authority v HTT Huntley Heritage Pty Ltd [2003] NSWLEC 76; 125 LGERA 332, esp at [20]. The focus of that discussion was paragraph (c) of the definition: see judgment below at [215]-[220]. 22Although the trial judge referred to the paragraphs in the definition as linked by "the conjunctive 'or'", he did not think paragraph (a) applicable and accordingly treated "or" as disjunctive. There can be no disagreement with that approach. Despite the somewhat expanded language at paragraph (b), the trial judge concluded that it was "in substance, to the same effect as" the definition in s 143(4). He concluded at [229]: "Further, I do not consider that the additional descriptor of a substance as one that has been 'discarded', 'rejected' or 'abandoned' detract from the argument. In the ordinary use of language, it could not be said that the material[s] which I have determined were transported by Terrace were, at any point in time, either 'rejected' or 'abandoned'. As to whether those materials were 'discarded', they were in a sense 'cast aside' by the owner of the land on which they were initially located but this acknowledgement does no more than enliven the enquiry earlier addressed. That is, whether in the context of any inclusive definition of 'waste', the motive of the proprietor seeking to cast aside the material is the sole factor in determining that the material is waste. For the same reasons earlier articulated, the entire factual matrix requires consideration in order to address the definition and in so doing no different conclusion is reached by me from that earlier expressed when determining that the material was not waste."

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.

Did transport include deposit? 35The trial judge held that the offence was completed by transportation to a "place" which satisfied the statutory criterion of not being licensed as a relevant waste facility. The offence was completed when the vehicle arrived at the place: it was not an essential element of the offence that the material be deposited, for the offence to be complete: at [158] and [163]. 36In Shannongrove, it was the offender who sought to argue that deposit was necessary, in order to avail itself of the intention or state of mind of the new owner. In the present case it was the Authority which sought to argue that deposit constituted part of the offence, for the ostensible purpose of engaging s 241 of the Act which required the Court, in assessing the penalty, to take into account "the extent of the harm caused or likely to be caused to the environment by the commission of the offence": s 241(1)(a). It was no doubt for that reason that the trial judge placed some emphasis on the existence of a separate offence of allowing land to be used as a waste facility when that is not a lawful use: s 144(1). However, that offence is committed by the owner or occupier of the land, who may not (and probably would not in the usual case) be the carrier. In any event, the possibility of overlap between two offences is a flimsy basis for construing the essential elements of each offence, in the absence of any indication that the offences were intended to be mutually exclusive in their operation. 37The other relevant consideration lies in the defence in s 143(3C), namely that the offence is not committed if the waste transported by the defendant was not deposited at the place to which it was transported. 38It is, of course, possible that particular conduct be an essential element of an offence, but one which is presumed to be satisfied unless the defendant proves otherwise. However, the language of s 143 is not in those terms. The fact that non-deposit is described as a defence, at least in circumstances where the ordinary meaning of "transport" does not include depositing the load, speaks strongly against the proposition that depositing is an element of the offence under s 143. The trial judge was correct to conclude that it was not.

Meaning of "waste" - second period 39The variations in the definition of "waste" which occurred between the first and second periods have been adverted to above and are more fully discussed in Shannongrove. Generally speaking, the changes expanded or clarified, but did not restrict, the scope of the definition. Accordingly, if the elements of the first charge were made out, there being no change in the nature of the conduct of the respondent, it follows that the second charge must also be made out. Nevertheless, it is appropriate to address the specific questions raised.

Scope of definition after amendment 40In relation to question 2, the trial judge held at [228] that paragraph (b) of the definition in the Dictionary was "to the same effect" as the expressions "unwanted" and "surplus" in s 143(4). 41On the basis that the owner of the land on which the demolition or excavation took place did not want the material which was transported to the Williamtown property, it is no doubt true to say that the addition of the epithets "discarded, rejected ... or abandoned" added nothing of relevance. On the other hand, the formulation of the question in these terms, by abstracting two terms from the definition and, further, disregarding entirely the second sentence of the definition, is erroneous. The error is significant because the second sentence of the definition in s 143(4) is present in the Dictionary definition, though it does not form part of paragraph (b) alone, but rather affects the whole of the definition. 42Importantly, there was also a variation in its language. Thus, the second sentence in s 143(4) stated: "A substance is not precluded from being waste merely because it may be reprocessed, re-used or recycled." In the Dictionary definition, after the amendments, the equivalent sentence read: "A substance is not precluded from being waste for the purposes of this Act merely because it is or may be processed, recycled, re-used or recovered." (The differences from s 143(4) are italicized.) 43The insertion of the word "is" was probably referable to the inclusion of a new paragraph (d), in the following terms: "(d) Any processed, recycled, re-used or recovered substance produced wholly or partly from waste that is applied to land, or used as fuel, but only in the circumstances prescribed by the regulations...." This addition is significant: it gives force to the conclusion that where waste has been processed, recycled, re-used or recovered, it will cease to be waste, except in prescribed circumstances. That is consistent with the preferred reading of the second sentence of s 143(4), namely that the capacity of a substance to be reprocessed etc is not relevant but, by inference, the fact of reprocessing etc is significant and generally terminates the characterisation of the substance as waste. 44The point may be taken a step further: even if paragraph (b) was relied upon as the basis of the prosecution, that did not mean that, in construing the terms of that paragraph, consideration was not to be given to the surrounding elements of the definition. In particular, it would have been appropriate to have regard to paragraph (c) and to the final sentence. According to that element of the definition, a substance which is discarded etc, but is intended for sale or recycling etc, is nevertheless waste. The construction set out above accepted that the possibility of such an intention in a third party did not prevent material being waste: paragraph (c) suggests that such an intention held by the original owner may also not preclude the material being waste, although arguably that merely clarified the original meaning. 45Little attention was given to the operation of paragraph (c) in the present case (other than in the discussion of the reasoning in Huntley) and therefore no firm conclusion as to its scope and operation is called for. It is sufficient to note that the proposed understanding is consistent with the preferred construction of the definition accepted above, namely that where the material is unwanted in the hands of the original owner, it is waste and will remain waste until processed, recycled, re-used or recovered. Because paragraph (c) was ostensibly treated as irrelevant, a question not addressed below was the concept of "recovery". On one view it was a process involving a "separate operation", as referred to in paragraph (c). Whether it could be relied on by the respondent in this case was not raised by the questions asked. 46Because the dissection of the elements of waste which is implicit in question 2 is erroneous, it is inappropriate to answer the question in its terms.

Operation of paragraph (a) of the definition 47For reasons explained in Shannongrove, one reason why it may have been thought appropriate to have a special definition of "waste" in s 143 was that paragraph (a) of the definition in the Dictionary was seen not to be readily applicable to an offence under s 143. That is because paragraph (a) refers to a substance which is "discharged, emitted or deposited in the environment" so as to cause an alteration in the environment. If one took a different view of the submission that the depositing of the substance was an essential element of the offence under s 143, paragraph (a) might be relevant. However, on the assumption that transportation does not include depositing, it is reasonable to conclude that paragraph (a) has no material relevance to the offences created by s 143. An affirmative answer should be given to question 7.

Onus of proof - characterizing the "place" 48It follows from the matters set out above that the conclusions reached by the trial judge as to the construction of the statute were, in material respects, erroneous. It remains to consider whether the Court should answer question 9 and what order the Court should make. 49Question 9 had two limbs: the first was whether the prosecutor had to prove that lawful authority was required to use the place to which the substance was being transported "as a waste facility for that waste". The second limb asked whether, once the prosecutor had established the need for lawful authority, the onus shifted to the defendant to establish that there was a lawful authority for that purpose. 50The respondents correctly noted that, although the trial judge did make findings in respect of these issues, they were not material to his conclusions. The respondents' primary position was that it was inappropriate to answer the question. In the alternative, the respondents submits that the approach of the trial judge should be upheld. 51The issue arises in this way: the offence involves transporting waste "to a place that cannot lawfully be used as a waste facility for that waste": s 143(1). However, s 143(2) is in the following terms: (2) Proof of lawfulness In any proceedings for an offence under this section the defendant bears the onus of proving that the place to which the waste was transported can lawfully be used as a waste facility for that waste. 52The trial judge dealt with the matter at [237]: "Implicit in subsection (1) is that some lawful authority is required in order to use the place to which waste is transported as a waste facility for that waste. No injustice is done to the language or purpose if the onus is cast upon the prosecutor to establish that lawful authority is required to use the place in that manner. Once that onus has been discharged, effect is given to subsection (2) by shifting the onus to the defendant to establish that any or all requisite authorities were operative at the time at which waste was transported to that place." 53Approximately one-third of the appellant's written submissions were directed to this issue. The appellant alleged that the "two limb test posited by the defendant - and accepted by his Honour - is, with respect, nonsensical". The appellant also raised an issue, not discussed by the trial judge, as to whether s 417 of the Crimes Act 1900 (NSW) dealing with the proof of authority or excuse in respect of "a particular act or having a specified article or thing in possession", applies to s 143(1). If it does, s 143(2) might be thought otiose. On the other hand, the appellant contended that s 417A of the Crimes Act, dealing with exceptions, excuses and qualifications to an offence, does not apply to s 143(1). That might also raise significant questions. 54As more fully discussed in Shannongrove, the provisions defining what is and what is not a waste facility (in Schedule 1, Part 1) themselves give rise to questions of fact. There is, thus, a real issue as to whether the prosecution must establish beyond reasonable doubt that the place to which the waste was taken fell within the description of a "waste facility". That question might be thought readily capable of discrete treatment from the question of whether an authority or licence existed to use the premises in question for that purpose. 55There are other possible complications which were not addressed, either by the trial judge or in submissions in this Court. For example, the definition of "waste facilities" in Schedule 1 referred to areas, the nature of the waste and the nature of the facility. Some, such as landfill and application sites, have geographic definitions subject to exceptions. That would give rise to a question as to the party bearing the burden of negativing or establishing the exception. (The term "landfill or application site" had its own definition in Schedule 1, Part 3.) 56Although the result reached by the trial judge is by no means "nonsensical", the somewhat brief discussion of an issue which did not require determination, in circumstances involving layers of complexity, suggests that the question should not be answered in the present case.

Orders 57On the basis of the reasons set out above it is appropriate to provide answers to questions 1-8, although some variation is required to their terms, in order to deal with them as questions of law. 58It was apparently accepted at [229], although without making a precise finding, that the substances transported to the Williamtown property were unwanted or surplus in the hands of the owners of the land from which they were taken. It is difficult to envisage, on the basis of the evidence discussed by the trial judge, that any other finding could be made, but it is appropriate that the matter be returned to the Land and Environment Court for that step to be taken. 59Secondly, if such a finding were made in respect of the original owner of the material, there is a further finding required, namely that the materials were not processed, re-used or recycled prior to transportation in a manner which caused them to cease to be "waste". The fact that they were "sorted" into materials which were to be re-used at a particular place would not itself constitute that use. Accordingly, on the evidence discussed in the judgment, it would appear unlikely that any other conclusion could be reached than that the material was "waste" when it was transported to the Williamtown property. However, because the trial judge approached the matter on an erroneous basis, there was no finding in those terms and it is appropriate that the trial judge deal with the factual issue. 60Thirdly, having determined that the material was not waste, no findings were required with respect to whether the Williamtown property was a place which could not lawfully be used as a waste facility for that waste: see [243]. On the assumption that the material transported is found to be "waste", further findings in relation as to the nature of the place to which it was transported will also be required. 61As the matter will have to be returned to the Land and Environment Court for final orders in accordance with the answers given by this Court to the questions referred to it, it is inappropriate for this Court to comment further on the evidence before the Land and Environment Court. It should, however, be noted that much of the extensive evidence adduced was irrelevant to the proper consideration of the charges. 62Although it is clear for the foregoing reasons that the trial judge approached the matters on an erroneous basis in point of law, only some of the questions raised by the appellant have been determined in accordance with the answers proposed by it and question 9, to which significant attention was directed, has not been answered. The appellant did not seek an order for costs, although the respondent did. In the circumstances it is not appropriate to order that either party pay costs of the other. 63The questions should be answered and orders made in the following terms: (1) Question: 6. Was it open on the facts found by me to hold that the definition of 'waste' in the Dictionary to the POEO Act had no application during the First Charge Period? Answer: On the proper construction of the Act, the definition of "waste" in the Dictionary had no application to an offence under s 143(1) prior to 1 May 2006, whilst "waste" was specially defined in s 143(4). (2) Question: 5. Was it open on the facts found by me to hold that the 'transport' of waste within the meaning of section 143 of the POEO Act to a place did not include the deposition of that substance at the place? Answer: On the proper construction of the Act, "transport" of waste for the purposes of s 143(1) did not include depositing the substance at the place to which it was transported. (3) Questions:

1. Was it open on the facts found by me to hold that in determining whether the substance was 'waste' within the meaning of section 143(4) of the POEO Act during the First Charge Period the factors relevant for consideration included: (a) the nature of the substance; (b) whether there was an identified demand for that substance; (c) circumstances in which the substance was obtained or removed from its source; (d) whether the substance was being transported to a place at which it was intended to be used for the purpose for which demand for the substance has been shown; (e) the period of time that elapsed or was expected to elapse after the substance was transported to the place of its intended use before it was put to that use; and (f) whether the substance was stockpiled at the place to which it had been transported?
2. In determining whether the substance was 'waste' within the meaning of section 143(4) of the POEO Act during the First Charge Period should I have held that the only factors for consideration were: (a) the nature of the substance; and (b) whether the substance was 'unwanted' or 'surplus' in the hands of the owner or generator of that substance?
3. Was it open on the facts found by me to conclude that the qualification expressed in the words "A substance is not precluded from being waste merely because it may be reprocessed, re-used or recycled" in Section 143(4) of the POEO Act was a limited one and did not change the determination that the substance transported by the First Respondent be 'unwanted' or 'surplus' in order to qualify as 'waste'? Answer: On the proper construction of the Act, whether a substance was "waste" for the purposes of s 143(4) required the court to consider whether the substance being transported was unwanted or surplus by and to the owner of the waste immediately before it was transported. That question of fact was to be determined without reference to whether, because of its nature, the substance might be reprocessed, re-used or recycled. The other factors referred to in questions 1 and 3 were irrelevant except to the extent that their consideration might provide evidence of the state of mind of the owner of the land on which the substance existed immediately prior to transportation. (4) Question:
4. Was it open on the facts found by me to hold that the definition of 'waste' in paragraph (a) in the Dictionary to the POEO Act had no application during the Second Charge Period? Answer: On the proper construction of paragraph (a) in the definition of "waste" in the Dictionary to the Act, as in force on and from 1 May 2006, a substance is not discharged, emitted or deposited in the environment by transporting it to a place for the purposes of s 143(1) of the Act. (5) Questions:
5. Was it open on the facts found by me to hold that in determining whether the substance was 'waste' within the meaning of paragraph (b) of the definition in the Dictionary to the POEO Act during the Second Charge Period the determination made by me in relation to the definition of 'waste' in the First Charge Period remained apposite?

Amendments 20 March 2014 - [1] Amending "Basten JA" to "Basten ACJ". [55] Adding "the" before "waste" and "nature". [56] Amending "suggest" to "suggests". Amended paragraphs: [1], [55], [56] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 March 2014