Country
Australia
Sources
InforMEA
Tagging
Permits, Criminal
Abstract
The defendant had a problem with access to his land. He owned land at Wyee in the hinterland of the Central Coast of New South Wales. The defendant had obtained a development consent to erect a rural dwelling in a farm machinery shed and a dam on his land. The dwelling and the dam were towards the middle of his land. An access road needed to be constructed from the public road which finished on the eastern boundary of his land to the dwelling and the shed. This required great quantities of fill. The great majority of fill needed to be imported. Therefore, the defendant permitted persons to deposit waste on his land in the area of the alignment of his proposed road. Over time, large quantities of waste were brought on to and disposed of on the defendant’s land. The fill comprised a large variety of waste materials, including oil containers, bottles, batteries, sheeting, pipes, metal, plastic, fibrosheeting, bricks, cut vegetation, building timber, car bodies and municipal wastes such as household rubbish, old toys, food waste and wrappers. The nature of the materials, the large quantities disposed of and the method of disposal on the land were consistent with the use of the land as a waste facility. Accordingly, the defendant was charged with committing an offence against s 144(1) of the Protection of the Environment Operations Act 1997 (“the Act”) of permitting land that could not lawfully be used as a waste facility, to be used as a waste facility. The court’s task was to determine whether the charge was proven to the requisite criminal standard. The court interpreted the wording of s 144(1) of the Protection of the Environment Operations Act 1997. The elements of the offence against s 144 (1) of the Act were: 1. the defendant is the owner or occupier of land; 2. the land cannot lawfully be used as a waste facility; and 3. the defendant permits the land to be used as a waste facility. The court compared each of the elements with the actual situation in order to determine whether the elements were fulfilled by the defendant. The court analyzed the question whether "cannot lawfully be used" was restricted to the absence of a lawful authority under the Protection of the Environment Operations Act 1997 (NSW) or if it could be extended to other Acts. It also analyzed whether the land could be regarded as a waste facility in the sense of the Protection of the Environment Operations Act 1997 and whether the defendant permitted the land to be used as a waste facility, especially in connection with the meaning of "permits". It decided that this did not require the intention that the purpose of use was as waste facility. In conclusion, the court found beyond reasonable doubt that each of the elements of the offence against s 144(1) of the Act was proven. It found the defendant guilty of the offence as charged.