Gerondal v Eurobodalla Shire Council

Advanced Arbor Service Pty Ltd v Strathfield Municipal Council [2006] NSWLEC 485 Chokr v Liverpool City Council [2008] NSWLEC 58 CASES CITED: Cooper v Coffs Harbour City Council (1997) 97 LGERA 125 Environment Protection Authority v HTT Huntley Heritage Pty Ltd (2003) 125 LGERA 332 Franks v Woollahra Municipal Council [2007] NSWLEC 461

TEXTS CITED: The Macquarie Dictionary, 3rd ed (Macquarie University, Sydney: The Macquarie Library Pty Ltd, 2001)

APPELLANT In person LEGAL REPRESENTATIVES: RESPONDENT Mr A Warren (solicitor) SOLICITORS Andrew Warren Associates

JUDGMENT: LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 Her Honour: The Appellant was found guilty on 27 November 2008 in the local court at Moruya of an offence under s 144 of the Protection of the Environment Operations Act 1997 (the POEO Act) that he used land at Broulee as a waste facility without lawful authority. The offence was committed on 31 July 2007. The Appellant was found guilty of the offence on 27 November 2008 and was fined $600. Following this conviction the magistrate issued an order on 27 February 2009 for restoration and prevention pursuant to s 245 of the POEO Act. That order specified a large number of items to be removed by the Appellant from the land within three months of the date of the order. The Appellant has appealed in these Class 6 proceedings to the Land and Environment Court against the conviction. He represented himself in this appeal.

2 Section 144 of the POEO Act provides: (1) A person who is the owner or occupier of any land and who uses the land, or causes or permits the land to be used, as a waste facility without lawful authority is guilty of an offence. Maximum penalty:

(a) in the case of a corporation - $1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or (b) in the case of an individual - $250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.

(2) In any proceedings for an offence under this section the defendant bears the onus of proving that there is lawful authority to use the land concerned as a waste facility.

3 The Dictionary to the POEO Act provides the following definition of waste: 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, processing, 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, recycled, re-used or recovered. 4 Waste facility is defined in the Dictionary to the POEO Act: waste facility means any premises used for the storage, treatment, processing, sorting or disposal of waste (except as provided by the regulations).

5 The order of the magistrate for restoration and prevention was made pursuant to s 245 of the POEO Act which states: The court may order the offender 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):

(a) to prevent, control, abate or mitigate any harm to the environment caused by the commission of the offence, or (b) to make good any resulting environmental damage, or (c) to prevent the continuance or recurrence of the offence.

6 An appeal to this Court from the local court is enabled by s 31(1) of the Crimes (Appeal and Review) Act 2001 (the Review Act). Under s 37(1) the appeal is a rehearing on the certified transcript of evidence before the local court. In this appeal I consider the matter afresh and it is not necessary that I find any fault in the magistrate's reasoning (see Franks v Woollahra Municipal Council [2007] NSWLEC 461 at [24] referring to Cooper v Coffs Harbour City Council (1997) 97 LGERA 125). Under s 39(1) of the Review Act the Court may determine an appeal against conviction by setting aside the conviction, or dismissing the appeal. Under s 49(2) the Court can exercise any function that the local court could have exercised in the original proceedings. 7 The evidence I had before me consisted of: (a) Local court transcript for the dates 18 July 2008 (the first day of the local court hearing in which opening submissions were made and two witnesses called), 18 September 2008 (the second day of the hearing in which two witnesses were called), 24 October 2008 (a mention of the matter in which directions were made for the parties to file written submissions), 27 November 2008 (when judgment was delivered and a penalty of $600 imposed on the Appellant), 19 January 2009 (when an application for a costs order and the s 245 order was made by the Council) and 27 February 2009 (a mention at which the magistrate made the s 245 order, did not make any order as to costs and there was discussion between the Council's solicitor and the magistrate about a potential annulment of the conviction) (b) Written reasons for the decision of the magistrate delivered 27 November 2008 (c) Written submissions of both parties' legal representatives filed in the local court (d) Letter dated 15 June 2007 from the Appellant to the Respondent setting out allegations of unlawful and inappropriate administration of the POEO Act. (e) Council records for the land the subject of the appeal identifying the land as 2(g) Residential-General and owned by the Appellant (f) Various photographs of the land taken 31 July 2007 and 18 July 2008 (g) A sketch of the layout of the land and points marked where photographs were taken from on 31 July 2007 (h) Invoices for purchase of various materials from Eurobodalla Shire Council, Metalmart, Mordex (metal frame and roofing manufacturers), Guko Industries and Industrial Replacements (truck parts), variously dated 12 December 2002, 4 April 2003, 14 April 2003, 27 September 2003, 14 October 2003, 11 November 2003, 16 September 2004, 6 December 2004, 2 February 2005, 14 September 2007 and 29 November 2007 (i) Receipts for purchases from Bunnings Warehouse, Magnet Mart and Dick Smith Electronics, variously dated 31 July 2003, 10 December 2003 and 19 March 2005 (j) Invoices for disposal of waste at the Council's facility, variously dated 10 July 2007, 29 July 2007, 11 September 2007, 14 September 2007 and 15 September 2007 (k) Photographs of artworks (l) Documentation relating to a development application made in 1994/1995 (m) Bench sheets for proceedings in the local court on the six days specified in (a) (n) Photographs of the land which had been marked for identification in local court proceedings

8 The relevant facts as disclosed in the transcripts from 18 July 2008 and 18 September 2008 concern the state of the land at the offence date, the status of various development applications made for the land which the Appellant relied upon to explain the presence of some material on the land, and details of the Appellant's and his wife's hobbies which were used to explain other material present.

9 Evidence was presented of the investigation of the offence by the Council. In respect of the investigation Mr Cumming, senior environmental health officer with the Council, gave oral evidence on 18 July 2008 that he attended the land on 31 July 2007 and took photographs from outside the boundaries of the land. At that time Mr Cumming identified material on the site including building materials, masonry, timber, steel, old whitegoods including washing machines and refrigerators, window materials, bed frames, scaffolding, old oil drums, water pipes, various containers and two caravans. Mr Cumming also took another series of photographs on 18 July 2008, the first day of the hearing. Mr Cumming identified that large concrete pipes present in the July 2007 photographs were present in one of the July 2008 photographs as was a fabricated metal structure and some masonry waste and building materials. Mr Cumming stated that he first attended the land after a complaint was lodged by a councillor. Mr Cumming produced a diagram in the local court depicting where he took the photographs on 31 July 2007 in relation to the house. A letter from the Appellant was tendered in the context of an argument about charges being brought against the Appellant as a result of bias on the part of the Council. The magistrate stated that this issue was irrelevant to the question of whether or not the offence took place and the issue was not otherwise pursued. Mr Cumming also gave oral evidence that no development consent had been granted by the Council for the use of the land as a waste facility.

10 The Appellant gave evidence on 18 July 2008. He stated that he is a retired Commonwealth senior officer, engineer and patent administrator and has used the land with his wife as a holiday home since he purchased it in 1983. He stated that the issue of the material on the land was first raised in about March 2006 when Mr Cumming visited the site. At this visit Mr Cumming told the Appellant that there was waste on the site. The Appellant stated that the material Mr Cumming identified as waste was acquired from a number of sources for purposes including construction, artwork and restoration of items.

11 He stated that some of the items were collected for the purposes of a development on the land. Documents relating to the development application lodged in 1994 were tendered. The Appellant maintained that the items were not useless and were not all inexpensive as evidenced by the receipts which showed purchases for use in artworks between $10 and $650. Receipts were also tendered to show that the Appellant had made trips to the local council tip from time to time.

12 The Appellant also gave lengthy evidence on 18 September 2008 by reference to the tendered photographs. He described the material on the site and its use. The Appellant stated that a photograph of the left side of the rear veranda showed artwork including stained glass work, tools used for this work, support frame members and a pottery wheel. A photograph of the backyard showed galvanized steel beams which the Appellant stated were stringers of a staircase from the house requiring repair. In cross-examination he stated that these beams had been purchased about three years ago. A photograph of the middle of the rear veranda showed a number of electronic components including test instruments which the Appellant stated were used for making and testing circuits which was one of his hobbies. He also identified an operational vacuum cleaner, cones in Perspex casing used in making artworks, an electric barbecue and a clothesline and an operational surveillance camera.

13 The Appellant described another photograph as showing a caravan in the foreground, the upstairs veranda behind it, a washing machine next to the caravan, an esky, a box of assorted glass bottles and cylinders also used for artworks, cement slabs used as a workbench, an electric kiln and a trailer holding a portable toilet. In cross-examination the Appellant stated that it was at least 10 years since the toilet had been used. The caravan was not registered as at the date of the offence and not had been used outside the land since at least 2001. He also stated that the washing machine was purchased in 2007 for $800 and that the washing machine was used regularly in its position outside. The Appellant stated in cross-examination that the bottles were to be converted in the kiln as part of an art making process. A photograph of the area underneath the house was described by the Appellant as showing another workbench with shelves for maintenance and artwork, a number of flowerpots, a laundry basket, recycling bins and some cement bricks. In cross-examination the Appellant stated that the bricks were new and not previously used. He also stated that the flower pots were to be used for garden work. A photograph of the side of the house showed a cabinet for storage of tools and posts to act as a barrier for the Appellant's dog. In cross-examination the Appellant confirmed that the cabinet was once a refrigerator and that it was in the carport to prevent damage.

14 Another photograph of the front of the house showed some metal sheeting leaning against the front gate, which the Appellant stated was to keep his dog from escaping, and a piece of artwork made of corrugated iron hanging from the upstairs veranda. A photograph of the side of the house showed shelving units, a number of flyscreens which the Appellant stated were to be fitted into the existing house after being repaired, and a carbonised steel container used to hold sheep manure. A photograph taken of the side of the land showed an electric motor which the Appellant stated was used for gardening, stands for firewood, a steel workbench and materials for art-making including wires, iron and plastic. In cross-examination the Appellant stated that this material for use in artworks could not be described as old or left over from previous works. The wires were not old but unused and galvanised. A photograph of the backyard showed further material used for art-making, logs used for firewood, a box stated by the Appellant to be for holding gardening material and a vegetation waste bin. 15 The Appellant stated that two large concrete pipes shown in some of the photographs are required to be erected by a crane to form part of a room structure in the house, which is in accordance with plans submitted to Council seeking approval for an extension to the existing house. The Appellant stated in cross-examination that the pipes had been in the same position on the land since at least 2001. Related to this extension was a pile of tiles which were also to be used for shelving and other repair work. In cross-examination the Appellant stated that these tiles were unused. He denied that the tiles were broken and said they would be cut as required. A water tank was also identified which the Appellant stated was on the land when he purchased it and is now used for storage of firewood. The Appellant described his truck, which was identifiable in one of the photographs, as being equipped with a hoist for lifting material onto it.

16 Photographs of artwork created by the Appellant and his wife, an artist and art teacher, were also tendered in the local court proceedings. The Appellant stated that the artworks were often deliberately tarnished by outdoor exposure.

17 On the issue of development applications made in respect of the land the Appellant stated that he had plans to build a shed and to renovate rooms in the house and he had purchased some materials for this purpose. A development application with accompanying plans was submitted by the Appellant to the Council in 1994 and the Appellant maintained that he did not know if consent was granted by Council and considered the application to still be in limbo. Appellant's submissions 18 The Appellant raised a number of issues to support his argument that he was not guilty of the offence: (i) There was no jurisdiction for the Council to prosecute the offence under the POEO Act as the appropriate prosecuting authority was the Environment Protection Authority (the EPA). The officer of the Council who commenced the prosecution was not an authorised officer of the EPA and had limited functions under s 188(3) of the POEO Act which did not include commencing this prosecution. (ii) Under Sch 1 (item 42) of the POEO Act the EPA regulates and licenses waste facilities which receive more than 30,000 tonnes of waste from off-site each year. Any land with less than that amount of waste are not required to be licensed. Further, the Council is not an authority which licenses such waste facilities. (iii) The statutory power of the Council to institute proceedings under s 217 and s 218 of the POEO Act does not include proceedings for "excluded offences". "Excluded offences" are offences related to "scheduled activities" including those listed in item 42 of Sch 1. (iv) The Council has breached a statutory duty under the POEO Act in not informing the EPA of any matter of concern such as the alleged existence of waste on the land. The EPA should have been given the opportunity to investigate whether there was waste on the land or whether it was being used for a waste facility as it was the sole responsible authority. (v) There is no harm alleged to be occurring as a result of the material on the land and considerations of environmental sustainability did not support the prosecution. The EPA has not identified that the alleged waste was harmful. (vi) The source of the material was partly from the Council's recycling and waste facility so that if it was waste when the Council sold it then that too is a waste facility. Further, the Council was obliged to warn the Appellant that if he purchased items from the facility he would thereby inevitably commit an offence. (vii) There is no statutory time limit specified for the storage of waste in the POEO Act, scheduled or non-scheduled, contrary to the Council's representation to the magistrate at the hearing of a period between two to five years. Given that any property holder has waste in garbage bins on their land at most times they can be prosecuted. (viii) That the magistrate should not have convicted the Appellant after the Prosecutor proposed an annulment. (ix) The s 245 order is informal as it is not linked to a particular address and the material was not qualified as waste by an EPA officer. Council's submissions 19 In this appeal, the Council's solicitor filed written submissions and also relied on submissions filed in the local court proceedings. 20 The Council's submissions responded to the grounds of appeal: (i) Council has jurisdiction to prosecute the offence under s 218 which provides that a local authority may institute proceedings for any offence under the POEO Act. (ii) The offence under s 144 is not an excluded offence and the prosecution was not in relation to any scheduled activity in item 42 of Sch 1 of the POEO Act. The EPA has no role to play in relation to this offence. (iii) The waste on the Appellant's land does not meet the criteria for any scheduled activity described in Sch 1 of the POEO Act. (iv) The Council has not breached any obligations because it is entitled to institute proceedings under s 218. (v) The Council's lawyer and the magistrate acted appropriately during the proceedings including in the exchange related to a time limit on storage of waste which was intended as a jocular exchange rather then a misleading statement of the law. (vi) The Council denies that there was an obligation on the Council to warn the Appellant in respect of the purchase of material from the Council recycling facility. (vii) There was nothing improper about the issue of an annulment being raised and not pressed by the Council and the magistrate proceeding to conviction.

21 In the local court proceedings and in this appeal the Council submitted that the elements of the offence had been proved as the Appellant: (i) is the owner of the land which is the subject of the offence (ii) used the land as a waste facility (iii) is not the holder of a development consent for use of the land as a waste facility (iv) has permitted the waste to remain on the land. (i) Appellant is owner of the land 22 The ownership of the land by the Appellant is not in dispute. Council records tendered in the proceedings show the Appellant is the registered proprietor of the land (see par 7(e)) and the Appellant gave oral evidence of being the owner of the land on 18 July 2008.

(ii) Use of the land as a waste facility 23 The main issue in dispute between the parties was whether the land was being used as a waste facility. The Council rejected the contention of the Appellant that the material on the land is not waste. The fact that the Appellant values the material does not mean that it is excluded from the definition of waste. 24 The Council submitted that the evidence of receipts tendered and oral evidence of the Appellant in the local court established that material on the land was mostly unwanted or surplus material purchased from the Council's recycling facilities or the scrap metal dealer, Metalmart. Referring to Environment Protection Authority v HTT Huntley Heritage Pty Ltd (2003) 125 LGERA 332, the material was sold as waste because it was discarded, rejected and unwanted by the sellers and its character as waste does not change because the Appellant intended to reprocess it and use it, per part (c) of the definition of waste in Dictionary to the POEO Act. 25 In relation to the building materials that may not have been purchased from the Council facility or from scrap metal dealers, the Council submitted that the Appellant failed to use any of the material over a significant period of time and it should therefore be considered waste in accordance with the description of waste in part (b) of the definition in the Dictionary. There was no development approval for the construction of a structure which the Appellant claimed some of the building materials would be used for. No plans for a renovation of the land have been put before the Council for 14 years. 26 The Council submitted there was also waste in the nature of general debris on the land which included the washing machine which the Appellant claimed to use outside, the toilet on the trailer, the caravan, boxes of bottles, old flower pots, coils of wire, the old refrigerator being used as a steel cupboard, another washing machine used for storage, timber that the Appellant stated would be used for shelving and slates that were to be used for flooring and shelving. This material would be considered waste by a reasonable person because it was discarded, rejected, unwanted, surplus and abandoned. 27 Because the definition of waste provided in the Dictionary to the POEO Act is inclusive and not exclusive, it is open to the Court to apply the ordinary everyday usage of the expression "waste" which includes "anything unused, unproductive, or not properly utilized" (The Macquarie Dictionary, 3rd ed (Macquarie University, Sydney: The Macquarie Library Pty Ltd, 2001)). It is commonsense that the material on the land meets this definition. (iii) Absence of consent for use of the land as a waste facility 28 The Council officer Mr Cumming gave oral evidence that no development consent had been granted by the Council for the use of the land as a waste facility. Further, under s 144(2) the Appellant has the onus of proving that the land can be lawfully used as a waste facility and no evidence has been tendered to that effect. (iv) Appellant permitting waste to remain on the land 29 The Appellant has permitted use of the land as a waste facility by purchasing the material, placing it on his land and considering it his. Finding 30 The Court's powers in an appeal on conviction are limited and are specified in s 39(1) of the Review Act. The Court may either set aside the conviction or dismiss the appeal. There has not been an appeal against sentence. The timeframe to apply for leave to appeal against sentence under s 33 of the Review Act has expired, that being three months from the decision of the magistrate in November 2008; Chokr v Liverpool City Council [2008] NSWLEC 58 at [2]-[4].

31 The submissions of the Appellant as set out in par 18(i), (ii), and (iii) concerning the operation of the POEO Act in relation to the EPA and the Council's responsibilities under the POEO Act are incorrect. For the reasons given by the Council at par 20, the Council had jurisdiction to commence and pursue these proceedings under s 218 of the POEO Act. Sections 217 and 218 provide: 217 EPA or other appropriate regulatory authority may institute proceedings (1) EPA Proceedings for an offence against this Act or the regulations may be instituted by the EPA. (2) Other appropriate regulatory authority Any such proceedings may also be instituted by the appropriate regulatory authority, if it is not the EPA, in connection with a matter for which it is the appropriate regulatory authority. 218 Other authorities who may also institute proceedings (1) Local authority - offences other than excluded offences A local authority may institute proceedings for any offence against this Act or the regulations (other than an excluded offence). … (6) Excluded offences For the purposes of this section, an offence is an excluded offence if it is an offence (other than a littering offence) committed in relation to: (a) scheduled activities, or (b) activities or work authorised or controlled by an environment protection licence, or (c) activities carried on by the State or a public authority, whether at premises occupied by the State or a public authority or otherwise, or (d) in the case of a noise pollution offence - a vessel in navigable waters, or (e) in the case of a noise pollution offence - premises used in connection with vessels and situated adjacent to, or partly or wholly over, navigable waters, or it is any other offence prescribed by the regulations as an excluded offence. 32 This is not an excluded offence under s 218 of the POEO Act and does not concern a scheduled activity. The EPA is not the appropriate regulatory authority and the Council is authorised under the POEO Act to institute these proceedings. The Appellant's submission in relation to the threshold for waste facilities under Sch 1 being 30,000 tonnes is not a correct construction of the POEO Act. 33 In relation to par 18(iv), there was no obligation on the Council to inform the EPA before commencing these proceedings. The EPA has no role to play in relation to this prosecution in relation to the Appellant's land. 34 In relation to par 18(v), the lack of harm from the material on the land is not relevant to whether or not an offence has been committed under s 144. That would be a matter relevant to sentence. 35 At par 18(vi) the Appellant submits that, as one of the sources of the material on his land was the Council's recycling centre, the Council should have warned him that it was selling him waste. I will consider this issue in relation to whether the second element of the offence has been proved, at par 39 below. 36 In relation to par 18(vii) that the Council represented a certain timeframe for storage of two to five years to the magistrate, the transcript does not disclose that was the context in which that period was raised. The magistrate's decision also shows that he did not adopt a particular timeframe in considering what a relevant period of storage was. While the possibility of an application for an annulment was raised by the Council's solicitor, no application was made for an annulment by the Council contrary to the submission in par 18(viii). 37 In relation to par 18(ix), the form of the s 245 order, this will be considered further below. Is the Appellant guilty of the offence? 38 In relation to the elements of the offence of conducting a waste facility on the Appellant's land at Broulee on 31 July 2007, the Council must establish the elements of the offence beyond reasonable doubt. The elements of the offence were identified by the Council in its submissions to the local court (par 21). It can be found that: (i) There is no dispute that the land belongs to the Appellant and did so at the time of the offence referred to in the summons (see par 7(e)). (ii) The primary issue to determine is whether the material on the Appellant's land was waste on 31 July 2007 and therefore whether the land is being used as a waste facility. (iii) There is no dispute that the Appellant does not have a development consent to use the land for a waste facility. I note that under s 144(2) of the POEO Act the Appellant bears the onus of proving that there is lawful authority to use the land concerned as a waste facility. (iv) Assuming the second element is established, the Appellant did permit the land to be used as a waste facility because he was the user of the land. 39 I therefore need to consider whether the second element of the offence has been proved. The photographs in evidence before the local court show a large number of items on a usual sized residential house block. In the local court, the Council's solicitor prepared a list of items, by reference to the magistrate's decision delivered on 27 November 2008, as to what was considered waste on the land and which became the subject of the order under s 245 of the POEO Act. The list identified material in the categories of: (i) Toilet on the trailer (ii) Building materials purchased for extensions and development - 15 items/ materials listed (iii) Art, sculpture and other intellectual pursuits - five items/materials listed (iv) Restoration of household items - two items listed (v) Items for utilitarian purposes - five items/materials listed (vi) Other large items - old caravan only listed

40 The part of the definition of waste in the POEO Act relied on by the Council is subsection (b) which refers to unwanted or surplus material, as identified in the evidence set out at par 9 to 16. The Appellant stated that he intended to use all the material on the land whether for building projects around the house, or in pursuit of his hobbies, or for general household purposes. In response to the Appellant's evidence that he has a use for all the material, including that from the Council's recycling depot and Metalmart, the Council submits that subsection (c) of the definition applies. All that material falls within subsection (c) of the definition of waste because it was waste when it was sold to the Appellant. 41 This submission is supported by the findings in Huntley. In Huntley Pearlman J held at [20] that the material placed on the land remained waste despite it being capable of being reprocessed, reused or recycled. The defendant's intention to use it did not change its character as waste. That case concerned the site of an old coal mine which was being rehabilitated by the defendant. 42 The Appellant's submissions at par 18(vi) in relation to the material obtained from the recycling depot highlight one of the dilemmas raised by the circumstances of this matter and referred to in the magistrate's decision at [17] and [20]: [17]…one man's waste is another man's asset. Many local government authorities operate a tip. Significant numbers of people take material to the tip. That material is waste in the mind of those people. The same can be said of material which is placed on the footpath for a Council's "rubbish collection". A deal of that material is invariably selected by people for the collection. [20] … A person does not operate a waste facility if a small amount of waste material is on the person's property. The first object of the [POEO] Act is "to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development". This indicates a balanced approach to environmental matters is required. We all have waste on our properties. The existence of garbage tins is proof of that assertion. The criminal keeping of waste must involve a situation in which the amount of waste is significant and has been on the property for some time.

43 The magistrate considered that he should take into account the length of time items had been on the land in determining if these were unwanted or surplus items. He also considered that he should take into account the volume of material on the Appellant's land. I agree that these are relevant considerations. 44 The definition of waste in the POEO Act is broad and would be too easily found not to apply, thereby undermining the intent of the legislation to control waste, if a person could assert that they intend to use items on their land which have been there for a considerable period or are said to be for projects which have not been undertaken for many years, as in this case. It is not clear how long all the items have been on the Appellant's land as it is voluminous and the Appellant has brought a lot of different material onto the land, and taken some off to the Council tip, over a long time. 45 In the local court proceedings, evidence was given by the Appellant about the length of time some of the materials listed in the order had been on the land. In respect of the toilet on the trailer, the Appellant stated in oral evidence that this has been on the land for at least ten years and has not been used in that time. The concrete pipes, which the Appellant said were to be used for the construction of an additional room in the house, have been in the same position on the land since at least 2001. Similarly the Appellant stated that the caravan had been on the land since at least 2001 and has not been used outside the land within that period. It is unregistered. No evidence was adduced as to the length of time the other materials on the land had been on the land. It is not possible to identify from the transcript and the evidence how long the many other items have been on the Appellant's land. For the items about which there is evidence, these have been there since at least 2001 and longer. 46 The definition of waste facility in the POEO Act is also broad and includes the storage of waste. There is a very large volume of material stored on the Appellant's land given the size of the block. The second element of the offence has been proved in that there is material stored on the Appellant's land which is waste, it being unused or surplus material. Having made that finding the fourth element of the offence is also proved. The Council has established each of the elements of the offence. There has been an offence committed given the strict liability nature of the offence and the broad definitions of waste and waste facility in the POEO Act. The issue then arises of whether I should uphold the conviction or consider whether an order ought be made under s 10 of the Crimes (Sentencing Procedure) Act 1999 (the CSP Act). 47 I exercise all the powers the magistrate did when the case was heard in the local court; s 49(2) of the Review Act. I am able in an appeal on conviction to determine whether I should apply s 10 of the CSP Act, see Preston J in Advanced Arbor Service Pty Ltd v Strathfield Municipal Council [2006] NSWLEC 485 at [19]. Section 10 provides that a court may, without proceeding to conviction, find a person guilty and dismiss the charge, inter alia. Under s 10(3) I must have regard to the person's character, age, health and antecedents, the nature of the offence, the extenuating circumstances of the offence and any other matter I consider relevant. 48 The Appellant is now a retired Commonwealth public servant who has owned the land at Broulee since 1983 and used it as a holiday home together with his wife. His evidence in the local court was that he has collected the material over a lengthy period and has purchased some of it at places including the Council's recycling depot, Metalmart and Dick Smith Electronics. This is confirmed by the receipts in evidence for some of the material. The material is all for the personal use of the Appellant and his wife in relation to very long term plans to build on the land, undertake repairs and for use in pursuit of their artistic and other interests. Other items purchased have simply sat around for many years. 49 While the offence is one of strict liability the mental state of the Appellant in relation to the commission of the offence is relevant to consider in relation to the circumstances of the commission of the offence. These circumstances do not suggest that the storage of waste, and therefore the use of the land as a waste facility, is being undertaken deliberately by the Appellant.

50 As expressed during the hearing, I am concerned about the exercise of the prosecutorial discretion of the Council to pursue a residential home owner for the strict liability criminal offence of operating a waste facility under s 144 of the POEO Act in the circumstances of this case. While the photographs show that there is a lot of material around the Appellant's home, and it would be considered unsightly by many, the material is largely of a domestic nature and could readily be found in lesser quantities around many homes throughout the State. There would be many homes where similar items are left unused for many years. The extremely broad definition of waste and waste facility potentially encompasses a very wide range of activity and for that reason caution is necessary when using criminal sanctions in relation to activities related to what is essentially the residential use of land. Criminal prosecution for activities undertaken largely for the use and enjoyment of a residential property should not be lightly undertaken. There was no evidence or suggestion from the Council in the local court or in this appeal that there is any harm resulting to the environment or health concerns resulting from the many items on the land such as, for example, these being a refuge for vermin or that these constitute a fire risk. If such risk did arise a more proportionate approach would be the use of an order to clean up issued under the powers provided to local councils under the Local Government Act 1993, see for example s 124 of that Act. 51 In light of the matters referred to above concerning the Appellant's antecedents and the circumstances of the case I consider I should find the Appellant guilty of the offence with which he is charged but record no conviction and order that the charge be dismissed under s 10 of the CSP Act. Section 245 order 52 That brings me to the s 245 order issued by the magistrate. Section 243 in Pt 8.3 of the POEO Act is headed "Court orders in connection with offences" and provides: (1) Application to proved offences This Part applies where a court finds an offence against this Act or regulations proved. (2) Meaning of proved offences Without limiting the generality of subsection (1), a court finds an offence proved if: (a) the court convicts the offender of the offence, or (b) the court makes an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 against the offender in relation to the offence (in which case the order is not a punishment for the purposes of that section). (3) Definitions In this Part: the court means the court that finds the offence proved. the offender means the person who is found to have committed the offence. 53 I can make an order under s 10 of the CSP Act and still make an order under s 245, given s 243(2)(b) and s 49(2) of the Review Act. The Appellant complained about the s 245 order made by the magistrate because it did not identify the address to which it applies and the material specified is not waste. Given the offence concerns a specified property and the order is made in relation to that offence I consider that the order does clearly apply to the Appellant's land. Nor is it necessary that the EPA identify the material as waste. 54 As I have made an order under s 10 of the CSP Act I consider I can vary the s 245 order made by the magistrate. I consider the Appellant should be required to remove the portable toilet which has not been used for ten years and the specified building material said to be required for a house extension as there has been no progress in the Appellant's pursuit of a development application for 14 years and no indication of when it might be pursued to finality. The other items concerning his hobbies and other household pursuits can remain. I would also say to the Appellant that he needs to be mindful of the volume of material he brings onto his land in the future to avoid concerns being raised about any environmental or health impacts arising from the volume of material. Costs 55 No costs were awarded in the local court and I do not therefore need to consider this. As the Appellant has been partially successful in this appeal I consider each party should pay its own costs of the appeal.

Orders 56 In matter no 60002 of 2009, the Court makes the following orders: 1. The conviction and penalty order of the local court on 27 November 2008 is set aside. 2. Pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 without proceeding to conviction the charge against the Appellant is dismissed. 3. Pursuant to s 245 of the Protection of the Environment Operations Act 1997 the Appellant is to remove the following items from his land at Broulee within three months (25 December 2009): (i) toilet on the trailer (ii) building materials purchased for house extensions · four large concrete pipes · steel girders and beams · treated timber poles · metal sheeting · sheet and corrugated iron · unused bricks and masonry · water pipes · window frames · scaffolding · timber 4. Each party is to pay its costs of this appeal.

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