Australia: EPA unsuccessful in NSW prosecution for transport of building materials as "waste"

Last Updated: 16 January 2013
Article by Maysaa Parrino and Lucinda Morphett

In brief - Common building materials now less likely to be categorised as "waste"

In the recent decision of Environment Protection Authority v Terrace Earthmoving Pty Ltd & Page [2012] NSWLEC 216, the Land and Environment Court has taken a common sense approach to the interpretation of the definition of "waste" under the Protection of the Environment Operations Act 1997 (NSW) (POEO Act).

Terrace Earthmoving engaged to excavate and place fill material for road

In approximately November 2005, the owner of land at Williamtown NSW engaged the services of Terrace to construct a road at his property, which involved excavation and placement of fill material into the proposed road area. Fill material was obtained from sites at which Terrace was carrying out demolition or excavation works and was generally comprised of broken concrete, bricks, tiles, soil and rock.

Terrace was charged by the Environment Protection Authority (EPA) with two offences under section 143(1)(a) of the POEO Act for the alleged unlawful transport of waste to the property. The director of Terrace was also charged with an identical offence under the POEO Act. Each of the parties pleaded not guilty to the charges.

Two different definitions of "waste" due to legislative amendment

The court held that "transport" of waste in section 143 of the POEO Act means to take or carry from one place to another. The first element of the offence, being the transportation of a substance is complete when is it transported to and arrives at a "place". Secondly, the substance transported must be categorised as "waste" within the POEO Act at the time of transportation.

Section 143 of the POEO Act was amended on 1 May 2006 which meant that there were two different definitions of "waste" before and after 1 May 2006 which applied to Terrace.

Was the material categorised as waste before 1 May 2006?

Up until 1 May 2006,"waste" had two different meanings in section 143 and the Dictionary of the POEO Act. The court found that the definition within section 143 applied, which meant that waste included "any unwanted or surplus substance (whether solid, liquid or gaseous)" and that "a substance is not precluded from being waste merely because it may be reprocessed, reused or recycled".

Having regard to this definition, and the definition in the Macquarie Dictionary of "waste", the factors relevant for consideration were:

  • the nature of the substance
  • whether there is an identified demand for that substance
  • circumstances in which the substance is obtained and removed from its source
  • 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
  • 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

Applying the above, the court was not satisfied on the facts that the material at the time of transportation was "waste" within the meaning of the POEO Act. This was for various reasons, including that the materials were identified as having a construction function and were set aside at their site of origin, loaded separately for transport, were wanted and used for the purpose for which they were in fact used, they were good and reusable sale items and excellent for a road base.

Was the transported material waste after 2 May 2006?

After 1 May 2006,"waste" was defined differently in the Dictionary of the POEO Act, including:

(a) any substance (whether solid, liquid or gaseous) that is discharged, emitted or deposited in the environment in such volume, consistency or manner as to cause an alteration in the environment, or (b) any discarded, rejected, unwanted, surplus or abandoned substance.

The court found that an "alteration to the environment" was directed at an action taken in respect of material, such as discharge or emission. As the offence involved the transportation of "waste" from its source to its destination, it did not involve the discharge, emission or deposition of material at the property. Secondly, as there were similarities in the definition at (b) above with the former definition of waste in the POEO Act, the court confirmed its view that the material was not waste.

EPA did not prove beyond reasonable doubt that the transported material was waste

As the EPA did not prove beyond reasonable doubt that the material transported during each charge period was "waste" within the POEO Act, a verdict of not guilty was required. The EPA requested that the court refrain from entering formal verdicts in the proceedings, so that it could exercise its right to submit any question of law to the New South Wales Court of Criminal Appeal.

As a result, the proceedings have been stood over to enable the prosecutor to make any such application, failing which, the court held that verdicts of not guilty would be required to be entered in all four proceedings. No formal orders have yet been made, but the court's interpretation of the events and the appropriate consequences would appear to represent a triumph of logic over legalism.

EPA less likely to succeed in prosecutions for transport waste offences involving common building materials

The case is significant as it clarifies that not all materials will be considered as "waste."

This is important for land owners, business and industry because it means that depending upon the factors relevant for consideration listed above, the EPA is less likely to be able to charge parties for waste offences involving common building materials including broken concrete, bricks, tiles, soil and rock, particularly if those materials are used for a purpose such as fill in a road.

If you are potentially liable under the POEO Act for any offences involving "waste" and there is ambiguity as to whether the materials involved constitute "waste", then we recommend that you seek legal advice.

Maysaa Parrino Lucinda Morphett
Planning and environment
Colin Biggers & Paisley

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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Maysaa Parrino
Lucinda Morphett
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