The recent decision of Craig J in Environment Protection
Authority v Terrace Earthmoving Pty Ltd & Page 
NSWLEC 216 provides an intriguing and somewhat restrictive
interpretation of what is 'waste' in relation to the
offence of unlawfully transporting waste.
In this case, the defendant company and its director were
charged with offences for unlawful transport of waste under the
Protection of the Environment Operations Act 1999
('POEO Act') sections 143(1)(a) and 169
respectively. There were two relevant charge periods: the first,
from 23 November 2005 to 30 April 2006; and the second, from 1 May
2006 to 1 March 2007 (after amendments were made to the POEO Act
and to the definition of 'waste').
QUESTIONS OF LAW
Craig J considered the three elements of the offence under s
143(1)(a) to be:
The defendants transported a substance
The substance was 'waste'; and
The place to which the waste was transported could not lawfully
be used as a "waste facility" for that waste. Lawful
authority for use of that place was required.
Element 1 – The Transport
Craig J held that the act of depositing a substance at its
destination is to be distinguished from the transporting of that
substance. This finding is highly significant as the offence
requires the material be a waste at the time it is transported, and
therefore in relation to the second element the relevant issue is
whether the material is considered waste at the time of
transportation and not when it is deposited.
Element 2 – The Waste
In relation to the first charge period, s.143(4) (now repealed)
defined waste as "any unwanted or surplus substance, whether
or not it may be reprocessed, reused, or recycled". In
determining whether the definition was met, Craig J held the
relevant factors are:
The nature of the substance;
Whether there was an identified demand for it;
The circumstances in which it was obtained and removed from its
Whether it was transported to a place at which it was to be
used for the purpose for which the demand exists; and
The period of time between transport and its use.
Craig J found the material at the time of transportation was not
waste. His Honour observed that even though the party discarding
the material did not want it, others may have had demand for it.
The waste consisted of demolition material for which there was a
demand for the purpose of road construction. Further, the material
suitable for the purpose of use in road construction had not been
stockpiled awaiting potential re-use and it had not been through a
process of deposit at a waste facility. It was also separated from
other material which had been treated as waste and transported to a
The definition of waste was changed subsequent to amendments to
the POEO Act in 2006. The amended Act was applicable to a second
charge period, and the prosecution relied on the following 2 of 5
alternatives in the new definition:
"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
any discarded, rejected, unwanted surplus or abandoned
In relation to (a) Craig J noted that the offence occurs when
waste is transported, and therefore this definition has no
application as it classes materials as waste based on whether it
causes alteration to the environment.
In relation to (b) Craig J held this definition has "in
substance" the same effect as the previous definition of waste
applicable to the first charge period (above). Added descriptors
("discarded", "rejected" and
"abandoned") do not cause the motive of the party
discarding material to be the sole factor in determining whether
the material is waste; "the entire factual matrix requires
consideration in order to address the definition".
Element 3 - Lawful use as a waste
The material was not considered waste, and therefore a finding
on the third element of the offence was not necessary. Nonetheless,
Craig J noted the dual onus of proof on the prosecutor and
defendant in relation to this element. His Honour stated "the
defendant is in the best position to prove that a required
authority is held." However, the prosecutor must prove in the
first instance that a lawful authority is required.
Although the prosecution may appeal, the decision in Environment
Protection Authority v Terrace Earthmoving Pty Ltd & Page
limits what material constitutes 'waste' under the POEO
Act, particularly in relation to the offence of unlawfully
transporting waste under s.143(1). As it stands, this new,
restrictive interpretation has significant implications for
individuals and companies working in resource recovery,
earthmoving, building demolition and related industries.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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