Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie [2019] NSWCCA 174

Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie [2019] NSWCCA 174

The Court held that the trial judge misapplied the statutory definitions of 'waste', 'waste facility', and scheduled activities; incorrectly allocated the onus of proof regarding exemptions; erroneously adopted a practical (rather than literal/textual) approach to exemption conditions, and misunderstood the definition of 'asbestos waste.' On established facts, Grafil carried out scheduled activities without proof of exemption compliance or other lawful authority. The Land and Environment Court must redetermine the proceedings according to these legal conclusions.

Jurisdiction
Australia
Judgment Date
02 August 2019
Procedural Posture
Criminal Appeal / Appeal by Stated Case (criminal Appeal Act S 5 Ae) From the Land and Environment Court to Court of Criminal Appeal, NSW
Outcome
Appeal allowed in part; questions of law determined; matter remitted for redetermination.
Legal Topics
['waste Regulation' 'land Use Offences' 'statutory Construction' 'onus of Proof' 'development Consent' 'appeal Procedures']
['environmental Law' 'criminal Law' 'administrative Law'] ['waste Regulation' 'land Use Offences' 'statutory Construction' 'onus of Proof' 'development Consent' 'appeal Procedures']

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Procedural Posture

Criminal Appeal / Appeal by Stated Case (criminal Appeal Act S 5 Ae) From the Land and Environment Court to Court of Criminal Appeal, NSW

Legal Issues

  1. 1 ["Interpretation of the statutory definition of 'waste' and 'waste facility' in the Protection of the Environment Operations Act 1997 (POEO Act)" 'Whether temporary stockpiling of materials on land constitutes application to land or waste storage as scheduled activities' 'Scope and effect of exemptions under the Waste Regulation' 'Who bears the onus of proof regarding lawful authority and exemptions under s 144 of the POEO Act' "The meaning of 'asbestos waste' and the effect of asbestos presence" 'Whether offences were continuing and/or time-barred' 'Lawful authority arising from planning approvals (development consent, Pt 3A approval)']

Ratio Decidendi

The Court held that the trial judge misapplied the statutory definitions of 'waste', 'waste facility', and scheduled activities; incorrectly allocated the onus of proof regarding exemptions; erroneously adopted a practical (rather than literal/textual) approach to exemption conditions, and misunderstood the definition of 'asbestos waste.' On established facts, Grafil carried out scheduled activities without proof of exemption compliance or other lawful authority. The Land and Environment Court must redetermine the proceedings according to these legal conclusions.

Court Disposition

Appeal allowed in part; questions of law determined; matter remitted for redetermination.

Orders

  • ['The Court answers the submitted questions as stated in [410].' 'The Land and Environment Court is to redetermine the proceedings in accordance with the answers given to the submitted questions by this Court.']