State of mind of the offender and reasons for the offences
80While an offence against s 144 of the POEO Act is a strict liability offence, the state of mind of the offender at the time of the offence is relevant. It can have the effect of increasing or decreasing the seriousness of the offence ( Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [42] and the cases there cited).
81The prosecutor submits that the seriousness of the offence relating to the Toukley Site is increased because that offence involved the Council "at a high level of its hierarchy, formulating a plan to use the Toukley Site in a way which was illegal". The evidence does not satisfy me to the requisite standard that the prosecutor's submission can be sustained.
82The prosecutor's submission is sought to be founded upon a string of emails passing between Mr Vestering and his superior, Mr Cathers. There are two aspects of these emails upon which reliance is placed.
83First it is submitted that Mr Vestering's direction that materials capable of recycling should be taken to the Toukley Site, following upon his cost analysis between May and September 2007, was a decision taken to avoid the payment of levies at licensed landfill sites. While it is correct that the capacity to save on landfill levies had caused Mr Vestering to focus more closely upon the recycling of materials capable of re-use on Council projects, the evidence does not establish that his motivation was to avoid compliance with relevant legislation.
84As I have earlier indicated, Mr Vestering was familiar with the use of the Toukley Site for recycling materials excavated during road work programs, a use of the Site that had been undertaken, to his knowledge, at least since 1999. The detailed measures that he put in place in 2007 for the use of the Toukley Site as a place for storage and recycling materials to be used in Council works were inconsistent with any nefarious motive. His specification of materials that could be taken to the Site, the controls that he sought to impose by circulating relevant personnel in relation to those materials, including the keeping of itemised records for materials taken to and removed from the Site, were all considered by him to meet the prosecutor's waste tracking requirements. His directions and protocols were seen to involve a more efficient use of the Council's own materials rather than wasting those assets. There is no proper basis, reasonably considering the documentary evidence, to conclude otherwise.
85The second basis upon which the prosecutor makes the submission of deliberate illegality is an inference, said to be available from the email exchanges, that regulation by way of licence was required but a decision made not to seek it. A consideration of the terms of the email string relied upon does not support the inference.
86Reliance in particular is placed upon an email dated 9 November 2007. In that email from Mr Vestering to Mr Cathers, the former describes the processes put in place at the Toukley Site to gather information in relation to "materials, sources, categories, quantities and drivers involved in [the] material handling process". Mr Vestering continued by indicating that the gathering of this information "provides a measure of control in identifying the excavation, transportation, use or disposal of materials involved in completing our civil works (helps to meet EPA requirements)". Other documents make apparent Mr Vestering's belief that waste tracking requirements were imposed by unspecified regulatory provisions but that landfill licensing provisions did not, in the circumstances, apply.
87Mr Vestering had reported to a number of people in January 2008 that up to 30,000 tonnes of waste per annum could be received at the Toukley Site without the necessity to obtain a licence. That statement would have been correct at the time (Sch 1, paragraph (d) of 'Waste facility', POEO Act) but for the fact that the Toukley Site was located within an "environmentally sensitive area" within the meaning of the POEO Act because it was within 250m from residential dwellings not associated with the facility. This additional qualification creating the need for a licence, was not understood by Mr Vestering nor, as it seems, by any other officer of the Council at the time. It is not suggested to the contrary by the prosecutor.
88In his email of 25 January 2008, Mr Vestering nominated the quantity of waste received to date and predicted the quantity of material likely to be delivered in the remaining 12 month period. He opined that upon his prediction, the quantity of waste taken to the Toukley Site would be "within the allowable limit".
89As it happened, more than 30,000 tonnes of waste material was delivered to the Toukley Site. However, there is no evidence to support an inference that this was an intentional breach of what was understood to be the threshold for licensing requirements.
90In operating the Toukley Site as it did, the defendant believed that it had existing use rights to conduct the waste processing and recycling facility as it was doing. As the statement of agreed facts in relation to that Site indicates, Mr Cathers, as director of the Shire Services Department had said that "he, and most people that he was aware of, were of the understanding that the activities that were undertaken on the Site were permissible, 'i.e, it was an extension of the original recycling that Council had been undertaking for many, many years'". Given the history of use of the Site dating back to the early 1950s when it operated following the grant of the only approval then required, namely that from the Department of Public Health, the belief held by Mr Cathers and other senior officers of the Council seems to me to have been a belief that was reasonably held, albeit that the legal consequence of the use, namely the need for a licence, was not understood for reasons already explained.
91I have already identified the circumstance in which crushed concrete containing asbestos fragments was taken to the Mardi Site for internal road construction. As the facts that I have recited indicate, the Council committed this offence when facilitating an environmentally beneficial aim, namely the remediation of a closed landfill site to permit its ultimate use as an area of open space, principally for the benefit of newly developed adjoining residential areas. The evidence of Ms Vereker indicates that substantial sums had been budgeted for expenditure on the Mardi Site in order to achieve the objective. Some $654,000 had been budgeted for site investigation through to 2011 while a total of a little over $6,000,000 had been budgeted for final site rehabilitation to be expended between 2011 and 2014.
92Taking account of all these matters, the evidence does not establish that the offences with which the Council has been charged should be viewed as being more serious because of the state of mind of the Council or the reasons for committing the offences. While the legal conclusion drawn by the senior staff of the Council as to the need for licenses under the POEO Act was wrong, the criminality involved is, to my mind, decreased rather than increased by reason of the circumstances that I have described.