The year in review: Court decisions relating to the New South Wales waste industry in 2023

In brief: There have been a number of decisions from the NSW Land and Environment Court (LEC) relevant to operators within the New South Wales (NSW) waste industry. The NSW Environment Protection Authority (NSW EPA) has announced its priorities for the 2023/2024 financial year which provides some guidance as to what can be expected from the regulator in early 2024. 

In this article, we have briefly reviewed some of the key cases involving the NSW EPA relating to:

• The provision of false or misleading information where the LEC has imposed significant fines following successful prosecutions.

• Applications for environment protection licences including providing guidance around who is a "fit and proper person" to hold an environment protection licence. 

• An appeal to the LEC because the NSW EPA considered fines imposed by the local court were manifestly inadequate. This case was the first time the LEC considered breaches of the Waste Avoidance and Resource Recovery (Container Deposit Scheme) Regulation 2017 (NSW).

• The first criminal prosecution in the LEC for failure to comply with a clean-up notice. 

Successful prosecutions relating to the provision of false or misleading information 

Th NSW EPA has successfully prosecuted several cases concerning the provision of false or misleading information relating to waste which is an offence under section 144AA of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act). 

In Environment Protection Authority v ACE Demolition & Excavation Pty (No 2) [2023] NSWLEC 3, ACE Demolition & Excavation Pty Ltd was charged with four offences relating to the supply of false or misleading information for the provision of 603 weighbridge dockets for the disposal of waste as well as other documents. The company pleaded guilty to all four charges and was ordered by the Court to pay $943,650 plus the legal costs of the NSW EPA. 

In Environment Protection Authority v O’Brien [2023] NSWLEC 118, the defendant was charged with four offences relating to the supply of false and misleading information concerning the receipt, transfer, and disposal of asbestos waste. The key question in the case related to whether the defendant was the person responsible for the supply of the false and misleading material beyond reasonable doubt as the defendant raised arguments about who had control of an email address. The NSW EPA was successful in prosecuting three of the four charges. The sentencing proceedings have not yet occurred.
 
In Environment Protection Authority v Geagea [2023] NSWLEC 125, the defendant was charged with one offence for conspiring with others to supply information about waste, being 49 waste delivery dockets, that he knew were false or misleading in a material respect. The tipping dockets revealed that waste was deposited at a licenced facility when it was actually deposited at a residential property in Luddenham. The defendant pleaded guilty and was ordered to pay $54,000 plus the NSW EPA’s costs of the proceedings. 

Environment protection licence cases

There have been two decisions this year relating to the issue of environment protection licences by the NSW EPA which we have previously written about. These decisions confirm the NSW EPA has an independent role in assessing applications for environment protection licences and provides guidance to applicants as to who is a "fit and proper person" to hold an environment protection licence.
 
In Crush and Haul Pty Limited v Environment Protection Authority [2023] NSWLEC 60, the LEC determined in class 4 proceedings that the NSW EPA was not required to issue an environment protection licence subject to conditions that are not inconsistent with a development consent. This decision confirmed that the grant of an integrated development consent does not automatically lead to the issue of an environment protection licence. A separate application needs to be made to and assessed by the NSW EPA. Our detailed article is available here.

In Crush and Haul Pty Ltd v Environment Protection Authority [2023] NSWLEC 1367, the LEC considered whether the applicant was a "fit and proper person" under section 45(f) of the POEO Act in class 1 proceedings. This was the first case to extensively consider the application of the "fit and proper person" test in granting of an environment protection licence. Applicants should be mindful of this test when preparing applications for environment protection licences. Our detailed article is available here.

First container deposit scheme case heard in the NSW Land and Environment Court

In 2022, Coffs Harbour Local Court ordered Clarence Valley Metal Recyclers Pty Ltd to pay three fines totalling $15,000 each for three breaches of the Waste Avoidance and Resource Recovery (Container Deposit Scheme) Regulation 2017 (NSW). The defendant pleaded guilty to three offences relating to unlawfully presenting containers and double counting them to take advantage of the return and earn recycling scheme.

Being unsatisfied with the adequacy of the fines imposed, the NSW EPA commenced class 6 proceedings in the LEC to appeal against "the manifest inadequacy" of the three fines. This was the first time the LEC has considered breaches under the Waste Avoidance and Resource Recovery (Container Deposit Scheme) Regulation 2017 (NSW). 

In Environment Protection Authority v Clarence Valley Metal Recyclers Pty Ltd [2023] NSWLEC 96, the LEC found that the original sentences were inadequate and fined the defendant $149,000 in total (being $54,000, $50,000 and $45,000). The maximum penalty for each of the offences in the LEC was $440,000 for a company. 

Operators involved with the container deposit scheme (as well as those dealing with other types of waste) should be aware of this decision. The NSW EPA’s decision to appeal the findings of the Local Court demonstrates a willingness to appeal penalties which it considers inadequate. 

First criminal prosecution for the failure to comply with a clean-up notice

Those within the industry would be well aware of the regulatory tools that are available to the NSW EPA to enforce compliance. These tools include issuing clean-up notices, prevention notices and prohibition notices. Operators usually comply with these types of notices to avoid further action being taken. However, the NSW EPA has for the first time successfully prosecuted a company and its director under section 91B of the POEO Act for not complying with a clean-up notice without a reasonable excuse. 

In Environment Protection Authority v Carbon MF Pty Ltd; Environment Protection Authority v Fair [2023] NSWLEC 120, the company and director were charged with offences for not complying with a clean-up notice requiring the removal of waste tyres and for polluting land by unlawfully storing over 28,000 waste tyres. Guilty pleas were entered for the four offences. The LEC ordered that the defendants were together fined $582,375 and required to pay the NSW EPA’s legal and investigation costs.

What will 2024 bring for the NSW waste industry?

We can take some guidance as to what is expected in 2024 from the NSW EPA’s seven priorities for the 2023/2024 financial year which reveal it will focus on specific target areas. Three are relevant to the NSW waste industry and operators may wish to take note of in preparing for the new year:

1. Air pollution from dust: the NSW EPA has indicated it will take a place-based approach to reduce air pollution from high dust emitting activities. We have seen an example of this in 2023 with the actions taken by the NSW EPA with respect to Cadia Holdings which has pleaded guilty to dust emission offences. While dust emissions have historically been a focus of the NSW EPA, waste operators can expect that there may be tougher enforcement action in this area.

2. End of life batteries: the NSW EPA will focus more attention on the safe management of battery waste and encourage the recycling and repurposing of batteries, to avoid them ending up in landfills.

3. End of life tyres: There is an apparent growing trend of stockpiling waste tyres which causes safety and environmental concerns. As mentioned above, the NSW EPA prosecuted the first dealing with a failure to comply with a clean-up notice this year, and it related to the unlawful storage of waste tyres. Waste operators can expect that closer attention will be paid to the number of waste tyres being stored on site. If the threshold of “more than 5 tonnes of waste tyres or 500 waste tyres” is exceeded, the need for an environment protection licence is triggered.