Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie (No 3) [2020] NSWLEC 90

Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie (No 3) [2020] NSWLEC 90

In light of the Court of Criminal Appeal's findings, the material placed in Stockpiles 1 and 2 on Lot 8 was waste, Grafil used Lot 8 as a waste facility by waste disposal by application to land and waste storage, Grafil failed to prove lawful authority because it was not entitled to rely on the CPRF exemption and lacked required development consent, a continuing offence was proved and the proceedings were not time-barred. Grafil was therefore liable for the s 144(1) offence, and Robert Mackenzie was liable under s 169(1) as a director of Grafil because no s 169(1)(b) or (c) defence was relied upon.

Jurisdiction
Australia
Judgment Date
15 July 2020
Procedural Posture
Class 5 Environmental Prosecution Under Ss 144(1) and 169(1) of the Protection of the Environment Operations Act 1997 (nsw) / Redetermination on Remitter From the Court of Criminal Appeal After Stated Case
Outcome
Grafil Pty Ltd was found liable for the s 144(1) offence in proceedings No 16/157886, and Robert Mackenzie was found liable for the s 169(1) offence in proceedings No 16/157995.
Legal Topics
['unlawful Use of Land as Waste Facility' 'waste Disposal by Application to Land' 'waste Storage' 'resource Recovery Exemptions' 'environment Protection Licences' 'executive Liability of Directors' 'development Consent' 'continuing Offence' 'limitation Period']
['environmental Law' 'criminal Law'] ['unlawful Use of Land as Waste Facility' 'waste Disposal by Application to Land' 'waste Storage' 'resource Recovery Exemptions' 'environment Protection Licences' 'executive Liability of Directors' 'development Consent' 'continuing Offence' 'limitation Period']

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Procedural Posture

Class 5 Environmental Prosecution Under Ss 144(1) and 169(1) of the Protection of the Environment Operations Act 1997 (nsw) / Redetermination on Remitter From the Court of Criminal Appeal After Stated Case

Legal Issues

  1. 1 ['Whether Grafil Pty Ltd, as occupier of Lot 8, used the land as a waste facility without lawful authority contrary to s 144(1) of the Protection of the Environment Operations Act 1997 (NSW).' 'Whether the material supplied and placed in Stockpiles 1 and 2 was waste and was applied to land or stored for the purposes of Sch 1 cll 39 and 42 of the Protection of the Environment Operations Act 1997 (NSW).' 'Whether the CPRF exemption applied so that no environment protection licence was required under the Protection of the Environment Operations Act 1997 (NSW).' 'Whether Grafil Pty Ltd had lawful authority by development consent under the Environmental Planning and Assessment Act 1979 (NSW).' 'Whether a continuing offence was proved and whether the proceedings were time-barred.' 'Whether Robert Mackenzie was liable under s 169(1) of the Protection of the Environment Operations Act 1997 (NSW) as a director of Grafil Pty Ltd.']

Ratio Decidendi

In light of the Court of Criminal Appeal's findings, the material placed in Stockpiles 1 and 2 on Lot 8 was waste, Grafil used Lot 8 as a waste facility by waste disposal by application to land and waste storage, Grafil failed to prove lawful authority because it was not entitled to rely on the CPRF exemption and lacked required development consent, a continuing offence was proved and the proceedings were not time-barred. Grafil was therefore liable for the s 144(1) offence, and Robert Mackenzie was liable under s 169(1) as a director of Grafil because no s 169(1)(b) or (c) defence was relied upon.

Court Disposition

Grafil Pty Ltd was found liable for the s 144(1) offence in proceedings No 16/157886, and Robert Mackenzie was found liable for the s 169(1) offence in proceedings No 16/157995.

Orders

  • ['Grafil is liable for the s 144(1) offence (proceedings No 16/157886) with which it is charged.' 'Mr Mackenzie is liable for the s 169(1) offence (proceedings No 16/157995) with which he is charged.']