Sargent v Goebbels[2024] QDC 138

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   Proceedings were brought against each of Goebbels Machinery Pty Ltd (“the Company”) and Paul John Goebbels for offences alleged to have been committed by them against the Environment Protection Act 1994. 
2. [2]
   The company was charged with three offences: one of having carried out an environmentally relevant activity (ERA), namely Resource Recovery and Transfer facility operation, without holding, or acting under, an environmental authority for the activity, contrary s 426(1) of the Act; and two of failing to comply with a directions notice contrary to s 363E of the Act.  Each of the direction’s notices related to the company carrying out the activity without an authority.
3. [3]
   Mr Goebbels was charged with three offences that, being an executive officer of the company, he failed to ensure the company complied with the Act in respect of the three contraventions of the Act charged against the company.  Section 493(1) requires an executive officer of a corporation to ensure the corporation complies with the Act.  Section 493(2) creates an offence of failure to ensure the corporation’s compliance.
4. [4]
   After a summary trial, a Magistrate found each of the company and Mr Goebbels not guilty of all charges and dismissed the complaints.
5. [5]
   The appellant appeals against those decisions and those orders.
6. [6]
   For the reasons which follow, the appeals should be dismissed.

Relevant statutory provisions

7. [7]
   At the relevant time, Ch 1, Pt 3, Div 2 of the Act set out key concepts.
8. [8]
   Section 10 defined contamination as:

“10Contamination

Contamination of the environment is the release (whether by act or omission) of a contaminant into the environment.”

9. [9]
   Section 11 defined contaminant as:

“11 Contaminant

A contaminant can be—

1. a gas, liquid or solid; or

2. an odour; or

3. an organism (whether alive or dead), including a virus; or

4. energy, including noise, heat, radioactivity and electromagnetic radiation; or

5. a combination of contaminants.”

10. [10]
    Section 13 defined waste relevantly as:

“13Waste

1. Waste includes any thing, other than an end of waste resource, that is—

1. left over, or an unwanted by-product, from an industrial, commercial, domestic or other activity; or

2. surplus to the industrial, commercial, domestic or other activity generating the waste.

Example of paragraph (a)—

Abandoned or discarded material from an activity is left over, or an unwanted by-product, from the activity.

2. Waste can be a gas, liquid, solid or energy, or a combination of any of them.

3. A thing can be waste whether or not it is of value.

11. [11]
    Section 18 provided the meaning of environmentally relevant activity as, relevantly,:

“18 Meaning of environmentally relevant activity

3. an activity prescribed under section 19 as an environmentally relevant activity.”

12. [12]
    Section 19(1) provided:

“19 Environmentally relevant activity may be prescribed

1. A regulation may prescribe an activity as an environmentally relevant activity if the Governor in Council is satisfied—

1. that—

1. a contaminant will or may be released into the environment when the activity is carried out; and

2. the release of the contaminant will or may cause environmental harm; or

2. the activity will or may otherwise adversely affect an environmental value of the marine environment.”

13. [13]
    Section 426(1) provided:

“426Environmental authority required for particular environmentally relevant activities

1. A person must not carry out an environmentally relevant activity unless the person holds, or is acting under, an environmental authority for the activity.

Maximum penalty—4,500 penalty units.”

14. [14]
    Section 426(2)(3) prescribed exceptions which are not relevant to this case.
15. [15]
    Section 363A(1)(a) provided:

“363APrescribed provisions

1. This part provides for a direction notice to be issued for a contravention of any of the following (each of which is a prescribed provision)—

3. (a)
   section 426, 440, 440Q or 440ZG;”

16. [16]
    Section 363E provided:

“363EOffence not to comply with a direction notice

A person who is issued with a direction notice must comply with it unless the person has a reasonable excuse.

Maximum penalty—

1. if the offence is committed wilfully—1,665 penalty units; or

2. otherwise—600 penalty units.”

17. [17]
    Section 19(1) of the Environmental Protection Regulation 2019 provided:

“19 Activities prescribed as environmentally relevant activities—Act, s 19

1. For section 19 of the Act, each activity to which a section under schedule 2 applies is a prescribed ERA.”

18. [18]
    ERA 62 in Sch 2 provided:

“62 Resource recovery and transfer facility operation

1. Resource recovery and transfer facility operation (the relevant activity) consists of operating a facility for—

1. receiving and sorting, dismantling or baling waste; or

2. receiving and temporarily storing waste before it is moved to a waste facility.

2. The relevant activity does not include—

…

8. sorting or storing—

1. a total quantity of no more than 6t or 6m3 of general waste at any one time; or

The Magistrate’s decision

19. [19]
    Having set out in detail the evidence adduced on the trial by both the complainant and the defendants, the learned Magistrate set out the following findings of fact:

“Goebbels operated a business which buys and sells farming machinery and equipment, components and parts or [sic] such machinery and equipment.  It also repairs farming machinery.  The business is operated from three lots owned by Mr Goebbels.  The site is not aesthetically pleasing.  There is more than six cubic metres of material on site.  The business has operated in excess of 40 years.  Most of the machinery is bought and sold second-hand.  Some of the items brought onto site are rusty; rusty items are not necessarily of no further use.  The business also buys and sells new parts.  Items bought by the business are bought for the purpose of resale as machinery or parts of machinery used in the agricultural industry.

The majority of items purchased are purchased from farm clearing sales; some of the items are purchased new from other suppliers.  Items of machinery are dismantled after purchase for transport to the site and often remain dismantled when stored on site until either sold as whole or parts are taken from machines and used to repair other machinery or are sold as part.  Any items not used will ultimately be put into scrap metal bins or wheelie bins and disposed of.  The machines and other items may stay on site for considerable periods of time before they are either used, purchased or scrapped.  Occasionally, items may be purchased at the clearing – at a clearing sale and when received on site are scrapped because they are determined to be of no use.”

20. [20]
    Those findings of fact are not really challenged on the appeal.Nor is her Honour’s recitation of the evidence on which they were found. 
21. [21]
    On the basis of those factual findings, the learned Magistrate turned to consider what she described as “the threshold issue of whether Goebbels Machinery received materials on site which is waste in accordance with the legislation and if so, whether [indistinct] cubic metres of that waste is shared or sorted on site.^[1]
22. [22]
    Her Honour continued:

“The complainant has not identified the particular items which they say are waste, but instead say I can infer that more than six cubic metres of material on site is waste and was received as waste.”

23. [23]
    Having set out what she thought was the complainant’s position in relation to this issue from both his written and oral submissions, although saying that this was not entirely clear to her, her Honour observed:

“It was conceded by counsel for the complainant that if Mr Goebbels bought a piece of machinery from a farm clearance sale because the owner was selling the farm and did not need it, and then Mr Goebbels on sold that machinery in that form, then it would not be received as waste.  Whilst not entirely clear, it would seem that the complaint [sic] has taken the position that if items are received on site cannot or are not used in their original form – form for their original purpose, then they are received as waste.”

24. [24]
    Her Honour then summarised the position of the respondents as follows:

“Goebbels’ position was that the business received second-hand goods and new goods, but the goods are not waste because they are not surplus or leftovers from the rural industry.  By reference to the ordinary meaning of the word “waste”, they say that the item obtained from the clearance sale still has utility and purpose.  They say they are not left over or surplus to the agricultural industry and it is irrelevant that the original owner has no further use for them.  It is submitted it is also irrelevant the items, such as large machines, are dismantled and their parts used in other machines because those parts are still used in the agricultural industry.  They say that whether or not the items have value – which they do – is not relevant to the issue of whether or not the items are waste as defined.  It is submitted that there can be items which are of value that are waste, for example, scrap metal [indistinct] purchased [indistinct] it has no use in the activity for which it was originally used but is still of value.

They submitted that the proper construction of the term “waste” in the legislation is that items will not be considered waste unless the items are left over in the sense that they have no remaining inherent utility or purpose.”

25. [25]
    Next, the learned Magistrate referred to two authorities upon which the respondents had relied in relation to the construction of the term “waste”, noting that each was from different jurisdictions construing different legislation and that she must exercise caution in their application to the legislation she was considering and the circumstances of the case before her.  Having noted that need for caution, her Honour observed:

“I do consider, however, that some principles and comments made in those cases are applicable to the issue of construction of waste in this case.”

26. [26]
    From the first, City of Fremantle v Chief Executive Officer of Department of Environment and Conservation,^[2] her Honour noted the relevant definition, which need not be set out here, and noted that the respondent’s had referred to the decision simply to note that the court had accepted a submission that:

“… the determination as to whether a substance is ‘unwanted’ or ‘surplus’ is to be made on the basis that extends beyond the purview of a particular person or entity and that an element of objectivity must be introduced.”

27. [27]
    Her Honour then observed that principle had been accepted in Environment Protection Authority v Terrace Earthmoving Pty Ltd and Page.^[3]  The Magistrate observed that the judge in that case “was of the view that whether matter is surplus or left over is to be considered objectively and not from the point of view of the entity disposing of the material.  The decision is also useful in considering what is meant by “unwanted or surplus” used in an inclusive statutory definition of “waste”.  The definition of “waste” there was:

“… any unwanted or surplus substance.  A substance is not precluded from being waste merely because it may be processed, reused or recycled.””

28. [28]
    Her Honour considered, notwithstanding the different jurisdiction, legislation and statutory objectives, that “the decision in relation to what is meant by ‘unwanted or surplus’ is useful in this context.”
29. [29]
    In that case, that part of the Macquarie Dictionary definition of “waste” as “… left over or superfluous; having served purpose and no longer of use; rejected as useless or worthless of reuse” had been referred to.  Her Honour continued:

“As is the case here, the words “left over and surplus” were included in the statutory definition as well as the ordinary meaning.  In that case, unlike here, it was expressly provided that the item could be waste if reprocessed, recycled or reused.  His Honour said:

‘As these definitions indicate, the words “unwanted” and “surplus” do, in themselves, play a significant part in the ordinary meaning of ‘waste’.  It is, therefore, appropriate to focus upon those words when determining whether the substance was waste.’

He found that:

‘… the determinations as to whether a substance is ‘unwanted’ and ‘or surplus’ is to be made on the basis that extends beyond the purview of a particular person or entity.’

He considered:

‘An element of objectivity must be introduced in order to avoid an idiosyncratic and unintended result when seeking to apply the particular words or meaning of a given factual situation.’

I agree with and adopt that reasoning.”

30. [30]
    The Magistrate then summarised the submissions on behalf of the respondents in respect of each of the enumerated factors. 

“He observed, as is the case here, that:

Nothing contained in the definition [of the New South Wales legislation] suggested the identity of the person or entity who’s opinion determined that particular material is ‘unwanted’ or ‘surplus’.

He said:

‘This fact, coupled with the ordinary meaning of ‘waste’, to the extent to which it uses expressions different from those included in the statutory definition, point to the need for an element of objectivity when determining that material is waste.’

He said:

‘The consequences of considering these matters causes me to conclude that there is no formula or formulaic expression to be applied to all cases in which the determination of material as ‘waste’ is to be made.’

He then goes on to list what he considers to be factors, in his view, relevant for consideration.  Goebbels made submissions – Goebbels have submitted that it is relevant to consider those factors in determining in this case what is meant by ‘waste’.  I accept that submission.

The complainant says in this case I should regard those factors identified as being no – of no application to this case as they relate to different legislation and a different statutory regime.  Whilst I accept that that is the case, I also accept that the principles identified are still of use in determining objectively whether the material the complainant says is waste that has been left over or surplus in this case is in accordance with the ordinary and extended definition of that term.  The factors identified by Judge Craig 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 to 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.’”

“The complainant says the respondent Goebbels is misguided in focusing on whether an item has utility or purpose in considering whether it is waste.  It is submitted that utility and purpose is the same as having value and parliament has expressly provided that an item can be waste even if it has value.  I disagree.  I accept Goebbels’ submission that utility or purpose is not the same as having value.  Items could have value without having utility or purpose.  In determining whether an item is left over or surplus, consideration should be given to whether it still has use or purpose in the activity it was originally used for, it is not left over or surplus to activity.  In constructing the term in section 13, I consider if it still has use or purpose in the activity it was originally used for, it is not left over or surplus to activity so as to be waste, whether [indistinct] has value.”

31. [31]
    Next the Magistrate noted submissions made by both parties about the objects of the Act.  For the respondents it had been said in respect of s 4(5) about waste management that:

“The program involves a three-phase process.  Goebbels have referred to subsection (5), which says that phase 2 of the process is to be achieved, amongst other things, by requiring waste management, including waste prevention and minimisation.  It is submitted that Goebbels’ business [indistinct] the receipt of materials which are repaired and maintained and sorted and resold, achieves waste management by preventing the generation of waste and minimising the extent of the waste, that is, waste generated by Mr Goebbels after the equipment has been repurposed.”

32. [32]
    By contrast, she noted:

“The complainant, on the other hand, points out that phase 3 is also stated to be achieved by ensuring all reasonable and practical measures are taken to protect the environmental values from more sources of environmental harm.  They say that there is a risk to the environment by the business’s operation.  It is said there is a risk of fires or discharge of the contaminants into the soil, waterways and as such, activity should be regulated.”

33. [33]
    As to those submissions, her Honour concluded:

“Both submissions both correctly reference the objectives of the Act.  There is no evidence that the material on site does present a risk to the environment.  There is evidence that the machinery and equipment received and stored on site is still of use and purpose in the agricultural industry, and, in fact, is used for that purpose.

I have found that Mr Goebbels buys new and used machinery and equipment, sorts and stores those items until they are sold, sometimes in the form it was originally used, but for mostly [sic] as parts or as parts installed on other machinery.  The fact that those items have been moved over in the sense that they are – that the individual farmer disposing of them no longer needs them does not make them waste in the terms of the legislation.  The fact that they may be used in a different way, for example, the parts from one machine installed on another machine, or parts simply sold as parts, do not make them waste.  These items are left over or surplus to farming activity, in that being activity in which – in – for which they were originally used.  They are sold on or reused in the same activity, being farming.  In terms of the ordinary meaning of the word, they are not unused or unproductive or useless.”

34. [34]
    There appears to be an error in the second last sentence set out above; either in what her Honour said, or in how it was transcribed.  The finding that “these items are left over or surplus to farming activity” makes no sense in context.  Her Honour was clearly finding that those items were not left over or surplus to farming activity as appears from her explanation that “in that being activity in which – in – for which they were originally used.  They are sold on or reused in the same activity being farming.  In terms of the ordinary meaning of the word, they are not unused or unproductive or useless.”
35. [35]
    The learned Magistrate then concluded her decision by rejecting submissions that on the evidence she would find that the vast amount of material seen in the photograph and video evidence was waste.  Her Honour said:

“The complainant says I should accept the officer’s evidence, the evidence of the video and photos, that the vast material seen on site was so decrepit that it could not of be any use in any event.  When Mr Goebbels was cross-examined in relation to the particular items that were said to fall within that category, that was disputed, and he did give explanations and details of the uses to which they were put in the farming industry.  The complainant says that looking at the vast amount of material on site, I could not accept that it came in in a healthy state and had since atrophied on site.  I agree that it is unlikely the material coming on to site was in a pristine condition, but that is not the test.  Some material would have come in in a rusty state, for example, but the evidence is that such equipment is still of use and could be on sold.  It is likely that some items have come on to site in a state they were, in fact, no longer of no purpose or use in the activity of agriculture such as to fall within the two waste [indistinct] found it should be construed [sic].

Mr Goebbels, in fact, conceded that on the odd occasion some items are scrapped immediately; however, no particular items have been identified or particularised by the complainant.  Instead, the complainant has taken a broad brush approach and maintains that as a vast amount of material on site appears to be scrap, then it must be waste for the terms – under the terms of the legislation.  The invoices for the sale of an item referred to as scrap does not mean I can find that item and others were received in the form of waste and stored on site in an amount greater than six cubic metres.  On the evidence of Mr Goebbels, which I accept, I cannot make the inference.  I also do not accept the argument put forward that if an item comes in a form that may have useful purpose but then stays on site and eventually is scrapped, I should find that those items came in as waste.  The issue is whether they were received as waste.  If they were received in a form that they can potentially have been reused in the agricultural industry, the fact that they eventually are and reach the point where they are scrapped does not retrospectively make them waste upon receipt.  In any event, the complainant has not identified items that they say fit within that category.

In summary, I find that the complainant has not proved beyond reasonable doubt that Goebbels received  and sorting more than six cubic metres of material that was waste, as defined.  As such, it has not been proven beyond reasonable doubt that Goebbels Machinery was carrying on environmental relevant activity.  As such, I find the defendant not guilty and the charges dismissed.”

The nature of the appeal

36. [36]
    The nature of an appeal under s 222 of the Justices Act 1886, being an appeal by way of re-hearing, is that the appellate powers of the court are to be exercised only for correction of error.^[4]  The court is required to conduct a real review of the trial and the learned magistrate’s reasons.^[5]  In doing so, the court must give due deference to and attach a good deal of weight to, the views of the learned magistrate;^[6] but it remains for this court to draw its own conclusions on the evidence. 
37. [37]
    In Fox v Percy at [27], Gleeson CJ, Gummow and Kirby JJ observed: 

    1. “If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.” 
38. [38]
    Further on, at [29], Their Honours said: 

“But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law.” 

The grounds of appeal

39. [39]
    The appellant raises the following four grounds of appeal:

1. The learned Magistrate erred in construing the meaning of the term “waste” as used in the Environmental Protection Act 1994 (Qld) (EP Act).

3. 1A.
   The trial Magistrate erred in her application of ERA 62 excusal provision 62(2)(h)(i), by conflating a requirement to be satisfied that there was a greater than 6t or 6m³ of general waste sorted or stored at any one time with the requirement to be satisfied that the same 6t or 6m³ of general waste was waste when received historically on the site.

2. The learned Magistrate erred in law by taking into account  irrelevant considerations when determining whether the subject material was “waste” as that term is used in the EP Act, namely:

1. Whether the proposed facility achieves waste management by preventing the generation of waste and minimising the extent of waste; and

2. That there is no evidence that the material on site does present a risk to the environment.

3. The learned Magistrate erred in finding the complainant had not proved beyond reasonable doubt that:

1. Goebbels Machinery Pty Ltd was carrying out Environmentally Relevant Activity 62 at the times specified in the complaint;

2. That, should it be necessary to so prove, at least 6t or 6m³ of general waste observed on the site was waste when it was received on to the site, when a failure to make each of those findings was contrary to the evidence.

40. [40]
    The appellant thus identifies four alleged errors requiring appellate intervention.  I shall adopt the nomenclature for each of the errors used in the appellant’s written submissions.

The first error – misconstruction of the statutory meaning of “waste”

41. [41]
    The appellant commences his written submissions in respect of this appeal ground:

“It was uncontroversial below that to discharge its prosecutorial duty, the complainant was required to demonstrate that some material was received on to the site that, at the time of delivery, was “waste” as that term is utilised in the EP Act.”

42. [42]
    That submission, in my view, very much understates, or indeed misstates, the prosecutorial duty at the trial.  To prove its case, the prosecution was required to prove beyond reasonable doubt that the company carried out the environmentally relevant activity.  That activity, relevantly, was operating a facility for receiving and sorting, dismantling or baling waste.  Demonstration of receipt of waste on to the site was central to the prosecutorial duty;and that was the way the prosecution was conducted.
43. [43]
    This misconception of the relevance and extent of proof of receipt of waste on to the site demonstrates a central flaw in the appellant’s submissions as to this first alleged error.  It also infects the appellant’s submissions in relation to each of the second and third alleged errors as will be explained later.
44. [44]
    The source of this misconception is the appellant’s, in my view erroneous, construction of the definition of waste in s 13 of the Act, and the environmentally relevant activity.  Because I consider these matters so central to the resolution of the appeal, I will make some observations about them now before turning to consider the further submissions made, particularly by the appellant, in respect of the first alleged error.
45. [45]
    What s 19 of the Act permits is the prescription by regulation of an activity as an environmentally relevant activity.  That regulation making power is conditioned upon the Governor in Council being satisfied that (a) a contaminant will or may be released into the environment when the activity is carried out and the release of the contaminant will or may cause environmental harm.  The prescribed activity under ERA 62 is operating a facility for either receiving and sorting, dismantling or baling waste, or receiving and temporarily storing waste before it has moved to a waste facility.  While each of receiving waste, sorting waste, dismantling waste, baling waste are themselves activities, as is storing waste, those activities are not those prescribed, and by operation of s 426 when done by a person who does not hold an authority, proscribed.  The environmentally relevant activity is the operating of the facility forengaging in those other activities. 
46. [46]
    What, ultimately, the prosecution was required to prove beyond reasonable doubt was that the company operated a facility for engaging in one or other of the sets of activities.
47. [47]
    The particulars of Charge 1 for the complaints against each of the company in Mr Goebbels did not descend to identify which of the two sets of activities described in paragraph (1) of ERA 62 the company was alleged to operate a facility for.  However, it is clear that it was, or could only have been, that set out in subparagraph (a): receiving and sorting, dismantling or baling waste.  There was no evidence directed towards establishing that the company operated a facility for receiving and temporarily storing waste before it was moved to a waste facility.  No submissions were made to that end.  Indeed, much of the case conducted by the prosecution was directed towards establishing that the storage of any material on the premises was anything but temporary.^[7]
48. [48]
    The activity prescribed by ERA 62 does not include operating a facility for receiving and storing waste, other than temporarily.  The set of activities described in subparagraph (1)(a) of ERA 62 does not include receiving and storing waste.
49. [49]
    The introductory words to subparagraph 2(h) of ERA 62 “sorting or storing” must be understood in this statutory context.  The exclusions set out in subparagraph 2(h) operate to exclude from the relevant activity matters which would otherwise fall within the relevant activity.
50. [50]
    Insofar as the exclusion in subparagraph 2(h)(i) applies to the set of activities described in subparagraph 1(a), it excludes from the relevant activity of resource recovery and transfer facility operation sorting a total quantity of no more than 6 tonnes or 6m³ of general waste at any one time.  It does not exclude from the set of activities described at paragraph (a)(i) storing those quantities at any one time, because storing waste is not part of that set of activities.  Conversely, insofar as the exclusion in subparagraph 2(h)(i) applies to the set of activities described at subparagraph (a)(ii), it excludes from the relevant activity of resource recovery  and transfer facility operation, storing waste in those quantities at any one time.  It does not exclude from the set of activities described in subparagraph (a)(ii) sorting those quantities at any one time, because sorting waste is not part of that set of activities. 
51. [51]
    This proper understanding of how these provisions are to be construed and applied will have a bearing upon the consideration of the second and third errors asserted by the appellant.  In respect of the first asserted error it demonstrates the misconception of the limited extent of the prosecutorial duty (now) asserted by the appellant: that all that was required to be proven was only that some material was received on to the site that was waste at the time of its delivery.
52. [52]
    Properly construed, the waste which is sorted, dismantled or baled, is that which is received.  Each of subparagraphs (a) and (b) of the prescription of resource recovery and transfer facility operation as an environmentally relevant activity describes sets of activities.  Within subparagraph (a) there are several sets of activities: receiving and sorting waste; receiving and dismantling waste; receiving and baling waste.  Conceivably, a facility may be operated for several of those activities.  Waste may be received, sorted and baled.  Waste may be received, sorted and dismantled.  Waste may be received, sorted, dismantled and baled.  There are many combinations and permutations.  That more than one of the prescribed sets of activities may be carried out is not to the point.  What is to the point is that at least one set of activities must be carried out.  For any of the sets of activities to be carried out the waste must be received.  The sorting, dismantling or baling is of the received waste.  This construction is clear from subparagraph (b).  It describes a single set of activities: receiving and temporarily storing waste before it is moved to a waste facility.  The waste which is temporarily stored is that which is received.
53. [53]
    What the prosecution was required to demonstrate was not, as the appellant (now) submits, that some material was received on to the site that at the time of delivery was waste, but that the waste that was sorted, dismantled or baled was received; and it was received as waste.
54. [54]
    Implicit in the submission now made by the appellant that he need only prove some material was waste at the time it was received, is a concession that the prosecution failed to prove that the material alleged to have been sorted, dismantled or baled, was received as waste.
55. [55]
    Furthermore, the limitation to the prosecutorial duty now asserted by the appellant is contrary to the way he conducted his case at trial. 
56. [56]
    Counsel for the prosecution commenced his oral submissions before the Magistrate by setting out several matters upon which counsel for the defendants had addressed in his submissions.  Counsel for the prosecution told the Magistrate:

“I am also in agreement with my learned friend that the definition of waste is inclusive, and so it’s given its ordinary meaning as well as the statutory meaning.  And I also agree that your Honour needs to make a finding that it was waste when it came onto the site and didn’t subsequently become waste.”^[8] (emphasis added)

57. [57]
    Counsel for the prosecution later summarised:

“And so the complainant’s case is simply that as part or as a consequence of the manner in which the defendants operate the agricultural machinery business, it receives and sorts and dismantles waste and that’s an ordinary and orthodox part of many businesses.”^[9] (emphasis added)

58. [58]
    Later in his submissions the prosecution counsel sought to persuade her Honour that the requirement for it to be waste when it came on to the site might be satisfied retrospectively.  He submitted:

“And your Honour can be comfortably satisfised that a significant part of the business was  acquiring items of this type, which do comfortably fall within the definition of waste.  We’ve also got the inference that may be drawn by the sheer number of items – it was said by my learned friend that it may well be that material comes on to the site not as waste, but becomes waste subsequently, essentially due to the influx [sic] of time.  Your Honour, that can’t really be, if something comes on to the site and then it’s never, ever utilised again, then it must be that at the time that it came on to the site that it is waste, because it is surplus, because its never going to be utilised again and that’s borne out in practice.”^[10]  (emphasis added)

59. [59]
    When it was observed by the learned Magistrate that it could not be assumed when the material came on to the site that it was never going to be used again “but after 10 years or something, perhaps the point then that it won’t be used again”, prosecution counsel went on to submit:

“Well it’s my submission that the question is, if something comes on and it’s ultimately never used, and nothing’s done to it, and nothing’s adjusted to it, then it must retrospectively be taken to be waste at the time it comes on because at the time it comes on, it is surplus to, because it is never going to be utilised.  It will be and is never going to be utilised.”^[11] (emphasis added)

60. [60]
    Although it is unpersuasive that the character of material on the day it came on to site might be determined at some indeterminate later time by what happens to (or does not happen to) that material over time, it was nonetheless a submission made towards establishing that the material was waste at the time it came on to the site; the prosecution having accepted that it was necessary to prove that it was.
61. [61]
    This was also reflected in the prosecutors later submission that:

“Your Honour would accept that the nature, scale and type of material observed is such that it did not atrophy on site; it did not come on to the site as a fit and functioning part of the rural history, and for a natural degradation to lay or dismemberment – would turn into waste.  There is simply too much material to allow that finding.”^[12]

62. [62]
    Those submissions were consistent with the written submissions for the complainant.  Paragraphs 21 and 22 of those submissions read:

“The complainant contends that the operations undertaken by Goebbels fall within ERA s 62(1)(a).  The terms of that section require waste to be received and then once received the waste must be stored or dismantled or baled.  The complainant’s case is that waste is received on to the site and then it is sorted and dismantled (although only one of these two later activities need to be proved).

In circumstances where there is clear evidence of sorting and dismantling of or on site items, the key issue in dispute in this proceeding will be whether the various material when received on to the site was waste for the purposes of the EP Act.” (emphasis added)

63. [63]
    The appellant’s written submissions that it was uncontroversial at the trial “that to discharge the prosecutorial duty, the complainant was required to demonstrate that some material was received on to the site that, at the time of delivery was ‘waste’ as that term is utilised in the EP Act”  does not reflect the case which the prosecution accepted it must prove at the trial.
64. [64]
    Further, at paragraph 28 of the written submissions below, the prosecution contended that “the most probative evidence that the material received on site comprises waste was given by Mr Goebbels who explained that he received on site second-hand machinery that was “left over” and “surplus” to rural industry, particularly given the fact that much of what was acquired by Mr Goebbels was purchased from farming operations that were winding up or being sold.”(emphasis added)
65. [65]
    Then, at paragraph 41, the prosecution submitted:

“Further probative evidence that the various items comprise ‘waste’, both in their current form and, by inference, when delivered to the land, is the various photographs and videos tendered into evidence.” (emphasis added)

66. [66]
    Then, at paragraph 42;

“In particular, as to the inference that the material was waste when delivered on to the site, the complainant submits that this inference should be drawn by having regard to:

1. the material scale of the machinery, equipment, parts and items on the land;

2. the poor condition of much of the observed items, such that they will never again be used for original purpose;

3. the fact that there are literally hundreds of complete and incomplete machinery items that have not been used for a long time, such that the inference maybe readily drawn that most of the equipment will not be used in its current form, and that it amounts to surplus from, or left over to, farming operations.”

67. [67]
    All of these submissions were made to advance the complainants case that the material was received on site as waste. That was the case the prosecution had accepted it was required to prove.
68. [68]
    The case advanced on appeal is simply not the case advanced at first instance.
69. [69]
    The appellant’s further submissions in relation to the first asserted error centre upon two issues: the Magistrate’s acceptance of the defendant’s submission that things with remaining inherent utility or purpose will not be considered waste; and her Honour’s acceptance of the submission that whether something is or was waste required an objective assessment.
70. [70]
    As to her Honour’s acceptance that an objective consideration is required, the appellant correctly identifies that her Honour was persuaded to that view on a consideration of the judgment of Craig J in Environment Protection Authority v Terrace Earthmoving Pty Ltd and Page.^[13]  The appellant identifies that her Honour, unfortunately, was not made aware of the judgment of Basten ACJ with whom the other members of the New South Wales Court of Criminal Appeal agreed in Environment Protection Authority v Terrace Earthmoving Pty Ltd (Terrace No 2), Craig J having submitted questions of law to that Court.  Basten ACJ had rejected an objective approach to the consideration of whether material was waste. 
71. [71]
    Paragraphs 27 to 29 of the appellant’s written submissions are as follows:

3. “27
   In particular, Basten ACJ with whom Hall J and Barr AJ agreed, eschewed an approach requiring an objective analysis as to whether particular material is waste, and explained the correct approach in the following way:

3. [25]
   Broadly speaking, the approach adopted by the trial judge was erroneous because it focused upon an objective assessment of whether the material transported was capable of being used for a specific purpose. The correct approach is to consider whether the owner of the material at the time transportation commenced had a continuing use for the material. If the owner did not, the material was waste, at least until it was applied to a new use: see Shannongrove at [29] and [34]–[38].
4. [26]
   In ordinary parlance, waste refers to unwanted by-products of a process and to an object (or substance) which the owner had, but no longer has, a use for and discards or abandons. In respect of the first category, being unwanted byproducts of a process, the question is not whether they are “capable” of being used for some other purpose, nor whether there is a “market” for such material.  Similarly, in relation to items for which the owner had, but no longer has, a use, the question is not whether some other person might conceivably want the item. Thus, in ordinary parlance, there is a clear distinction between a used car which is provided as a trade-in on a new vehicle or which is advertised for sale, and a vehicle which is abandoned by the owner.  The last example, in contradistinction to the first two, is aptly described as “waste”, even though a salvage business might be able to strip the vehicle for parts or sell it as scrap metal.
5. [27]
   The words “unwanted” and “surplus” require reference to the state of mind of some person. The concepts do not turn on any objective characteristic of the substance, although, as a matter of evidence, it may more readily be inferred that some substances are wanted than others.”

28. Basten ACJ also expressly eschewed relevance of the criteria set out by Craig J in Terrace at [184].

29. Having regard to this New South Wales Court of Appeal authority, it is apparent that the trial Magistrate erred in her consideration of whether the material acquired from farm machinery and clearance sales were waste, by considering and applying the criteria set out by Craig J in Terrace at [184] which have been subsequently set aside, and in particular in considering as relevant whether there was an identified demand for the subject material.”

72. [72]
    At paragraph 31 to 32 he submits:

3. “31.
   Upon a proper application of the correct meaning of waste as applied in the EP Act and, in particular, upon the basis that:

1. whether there is a demand for material, or whether it has ‘inherent utility or purpose’, is irrelevant to the enquiry; and

2. a proper approach requires subjective consideration as to whether the impugned material is unwanted or surplus to the person disposing of the material (cf. an objective consideration);

It is submitted that the Court would be satisfied that the material from farm machinery and clearance sales described in paragraphs 30 to 37 of the complainant’s outline below would comprise waste, it being surplus to, or left over from farming operations.

32. On that basis, it is submitted that this Court could be satisfised that the material received on to the site from farm clearance sales considered by the trial Magistrate was waste for the purposes of the EP Act, such that it could be satisfied that ERA 62 was carried out by Goebbels Machinery without the necessary EA.”

73. [73]
    The legislation under consideration in Terrace was, as her Honour noted, different to that in this case.  The relevant definitions of “waste” for the purpose of s 143 of the Protection of the Environment Operations Act 1997 (NSW) which applied during two relevant periods were:

For the first period, “Waste includes any unwanted or surplus substance (whether solid, liquid or gassiest).  A substance is not precluded from being waste merely because it may be reprocessed, reused or recycled;

And, for the second period, “Waste includes: (a) any substance (whether solid, liquid or gassiest) that is discharged, omitted or deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment, or (b) any discarded, rejected, unwanted, surplus or abandoned substance, or (c) any otherwise discarded, rejected, unwanted, surplus or abandoned substance intended for sale or for recycling, reprocessing, recovery or purification by a separate operation from that which produced the substance, or (d) any processed, recycled, reused or recovered substance produced wholly or partly from waste that is applied to land, or used as fuel, but only in the circumstances prescribed by the regulations, or (e) any substance prescribed by the regulations to be waste.  A substance is not precluded from being waste for the purposes of this Act merely because it is or may be processed, reused or recycled.”

74. [74]
    There are several differences which should be noted between those definitions of waste and that in the Environmental Protection Act. 
75. [75]
    First, each of the New South Wales definitions includes the word “unwanted”.  In the s 13 definition in the EP Act, “unwanted” is only used to qualify “by product”.
76. [76]
    “Unwanted” was one of the words, along with “surplus”, which Basten ACJ found “required reference to the state of mind of some person.  The concepts do not turn on any objective characteristic of the substance …”.  Whether something is “left over” from an activity may be different.  That may be ascertainable objectively and not depend on any person’s state of mind.
77. [77]
    Secondly, each of the New South Wales definitions define waste to include “any unwanted or surplus substance”.  By contrast, in order to be waste under the s 13 definition, the thing must be left over, or unwanted by-product from an activity.  To be waste the thing must be surplus to the activity generating the waste.
78. [78]
    As to the first distinction, paragraph 27 of Basten ACJ’s judgment in Terrace (No 2) did not conclude at the point set out in the appellant’s submissions.  Having identified that “unwanted” and “surplus” require reference to the state of mind of some person, his Honour went on to say, “the relevant individual could be one of three people: (a) the owner immediately before the transportation; (b) the person carrying out the transportation; or (c) the owner of the property to which the substance is transported.”
79. [79]
    Insofar as the enquiry is whether the thing is unwanted byproduct from the activity or surplus to it, I would accept that the relevant state of mind is that of the person engaged in the activity, not that Mr Goebbels or anyone else who may want to acquire the thing from him.  However, I would not accept that the views of Mr Goebbels or other persons as to the utility which the thing has is irrelevant to the enquiry as to the subjective state of mind of the person disposing of the thing. 
80. [80]
    As the appellant’s written submissions concede, “the prosecution would generally rely upon circumstantial evidence to prove whether, subjectively to the person disposing of the material, it is unwanted or surplus material.”^[14]  This is a case in which the only basis for determining the subjective state of mind of those disposing of the material is by inference from circumstantial evidence.  There is no direct evidence from any of the persons who disposed of any the material as to whether they considered it left over, unwanted, surplus or anything else.
81. [81]
    Important to that enquiry , in my view is, the evidence as to how those disposals came about.  As her Honour’s findings of fact set above record, the majority of items are purchased from farm clearing sales.  Those sales occur because the farmer has sold the farm.  The sales are by auction.  Although components and parts are also purchased, the largest portion of what is acquired are machines.  As her Honour’s findings of fact also record, some machines are dismantled before transportation to the company’s premises.  Occasionally a machine will be reassembled, but normally it will be left pulled apart because it would have to be dismantled again when sold by the company.  That evidence suggests that the machines had been used in farm activity prior to their sale.  The vendor sells the machine in a complete state, not as components or parts.  The vendor sells the machine as a machine.  If the purchaser were a neighbouring farmer, the machine could be moved from one farm to the other.  If the purchaser of the farm bought the machine it could remain on the farm.  Cessation of farming activity by the vendor farmer causes the sale of the machine; but it does not render the machine waste.  Counsel for the complainant conceded as much below.^[15]
82. [82]
    In my view, it could not be inferred that the subjective state of mind of the vendor farmer was that the machines are left over from the farming activity such that it would be considered by them to be waste.  As discussed earlier, to be waste within the meaning of that word as defined as s 13(1)(a), it must be left over from the activity.  The other described waste in s 13(1)(a), unwanted byproduct, is clearly from the activity.  A byproduct is produced from an activity.  By contrast, machinery could not be said to be left over from the activity and nor could it be inferred that the vendor farmer would consider it waste in the relevant sense.
83. [83]
    This conclusion is further supported by consideration of the example provided in respect of paragraph (a) of s 13(1).  On the evidence in this case, the machinery, indeed all the material acquired from clearance sales, is neither abandoned nor discarded by the vendor farmer.  To the contrary, it is sold by them. 
84. [84]
    The conclusion is also consistent with what was said by Basten ACJ in Terrace (No 2).  His Honour did not consider waste in ordinary parlance to be merely objects “which the owner had, but no longer has, a use for.”  For it to be waste the object must not simply be not useful to the owner, it must also be discarded or abandoned by them.  That is not the case in respect of objects acquired by the company at clearing sales.  “Abandon” is defined by the Macquarie Dictionary as “to leave completely and finally; for sake utterly; desert.”  “Discard” is defined as “to cast aside; reject; dismiss, especially from use.” 
85. [85]
    A consideration of the examples provided by Basten ACJ at paragraph [26] of Terrace (No 2) supports this conclusion.  When one considers the distinction “between a used [machine] which is provided as a trade-in on a new [machine] or which is advertised for sale, and a [machine] which is abandoned by the owner it would lead to the conclusion that the machinery here falls within the second example, not the third, and therefore is not aptly described as “waste”.
86. [86]
    Nor can it be concluded on the facts of this case, whether viewed objectively or subjectively from the point of the vendor farmer, that the material here, particularly machines, was surplus to the farming activity generating the waste.  Those “things” are not generated by farming activity.  I would accept that a tyre worn beyond its useful life might be considered a thing generated by the activity, but the evidence does not lead to the conclusion that it was considered surplus to the activity by the farmer who retained it, particularly when there is evidence of how it might otherwise be put to use.
87. [87]
    In my view, the same conclusions would be drawn in relation to machinery which is neither serviceable nor repairable.  Mr Goebbels conceded that the company did acquire some machinery which was not serviceable or repairable essentially to harvest that piece of machinery for parts.  Given that the vendors had not abandoned or discarded that machinery prior to the sale of the farm, it would be readily inferred that they did not subjectively view the machinery to be waste.  The utility that Mr Goebbels or other witnesses identify in the machinery is relevant to the enquiry as to the subjective view of it which the vendor may have held.  Retention of even unserviceable or irrepairable equipment, but from which parts may be harvested, which are sold for value only when the farm is sold, in my view, is more consistent with the owner considering them not to be waste. The same can be said if the matter is viewed objectively as it was by the magistrate. A subjective consideration from the point of view of the vendor, to the extent it can be made, would not result in a different consideration in this case.
88. [88]
    None of this reasoning is, in my view, displaced by s 13(4) of the Act which provides that “a thing can be waste whether or not it is of value.”  The appellant’s contention below and on the appeal is that concepts of “utility” and “purpose” are essentially synonymous with “value”.
89. [89]
    Section 13(4) operates so as not to preclude a thing from being waste, merely because it has the quality of value.  Thus, a thing need not be valueless before it can be waste.  However, whether a thing does or does not have value is not irrelevant to the enquiry as to whether the owner of the thing, subjectively, considers it left over from the activity, or surplus to it.  Its valuelessness may lead to a thing being thought left over such that it might be abandoned or discarded.  The value of a thing may result in it not being abandoned or discarded, but retained.  The same can be said of qualities of utility, or purpose even if equated with value. 
90. [90]
    As already explained, another person’s opinion as to value (utility or purpose) taken with other circumstances such as non-abandonment or retention and eventual sale, is relevant to and may inform the enquiry as to the owner’s subjective view of whether the thing is waste where their view cannot be known from direct evidence.
91. [91]
    At paragraph 31 of the appellant’s written submissions he submits that taking a proper approach of a “subjective consideration as to whether the impugned material is unwanted or surplus to the person disposing of the material (cf. an objective consideration) … the Court would be satisfied that the material acquired from farm machinery and clearance sales described in paragraphs 30 to 37 of the complainant’s outline below would comprise waste, it being surplus to, or left over from, farming operations.”  For the reasons already expressed, I would not, generally, attribute such a state of mind to the vendors of the material.  Specific consideration of the particular materials described in paragraphs 30 to 37 further supports this more general conclusion.
92. [92]
    Paragraphs 30 and 31 relate to tyres and rims.  I have already explained why I would conclude the evidence suggests that the vendor farmers did not consider them waste. 
93. [93]
    Paragraph 32 relates to gas cannisters.  It says, “the utilisation of disused gas cannisters for the construction of homemade ‘bird scarers’ or ‘flame throwers’ does not stop the relevant gas cannisters being classified as waste.”  This submission, insofar as it suggests utilisation as a bird scarer would be a new or different use, misunderstands the evidence of Mr Goebbels.  His evidence was that the gas cylinders come with the bird scarers that come on site.  They still have the bird scarers (probably more than they have gas cylinders) “and that’s why they’ve been there and they can also be used for flame throwers.”  He thus identified that they were a component of farm equipment bought and brought on site. 
94. [94]
    The fact that the vendor farmer repurposed a gas cannister as a bird scarer rather tells against a conclusion that the farmer considered the cannister waste.
95. [95]
    Paragraphs 33 and 34 related to the irrepairable and unserviceable machinery from which parts could be harvested and which I have already addressed. 
96. [96]
    For those reasons, I would reject the submission (at paragraph 34) that it is implicit in that evidence that significant parts of the second-hand machinery and equipment acquired by the company are left over from, and unwanted byproducts from, or surplus to, the rural uses for which they were originally utilised.”
97. [97]
    Paragraphs 35 to 37 were based upon Exhibit 13 which were invoices evidencing purchases made by the company from farm clearance auctions and the evidence Mr Goebbels gave about them.
98. [98]
    The submission made at paragraph 35 was that the evidence contained in Exhibit 13 “demonstrates that a significant element of the Goebbels’ business is purchasing small scale items that are plainly surplus to, or left over from, farming operations, and thereby fall within the statutory definition of waste”.
99. [99]
    An immediate problem for that submission in the context of the appeal submissions more broadly is that it invites an objective consideration of the invoices and the material within them and an objective assessment as to whether they are waste.  This is the very objective assessment eschewed by the appellant’s submissions more generally. 
100. [100]
     Subjectively, from the point of view of the vendors, little can be gleaned from the invoices other than that having previously retained items they subsequently put them up for sale by auction.  The objective assessment called for in the submission inheres in the identification of the particular items in paragraph 36 of the submissions.  The complainant, seemingly on the basis of no more than a description of the item and its sale price, has subjectively selected various items which are asserted to fall within the definition of waste.
101. [101]
     On the evidence, I would consider descriptions of items in the invoices of little assistance.  When asked about a “tub of scrap” which was purchased for $130, Mr Goebbels explained “auctioneers often have no idea what they are selling”.  Of an item described as “high rusty fuel tank” which sold for $50, Mr Goebbels explained “that can be a 280 gallon overhead tank with a surface rust”.
102. [102]
     Nor would I consider a low purchase price to be a reliable indicator that something may be waste.  There is little evidence about how, or the terms on which, the auctions are conducted; for example, whether they are with or without reserve prices for each lot. However, given the very low purchase price for many lots, the inference is that they were unreserved.  In those circumstances, the low price may simply reflect a low interest in, rather than the poor condition of, any particular lot.  One readily infers that the business model of the company and Mr Goebbels is to purchase items at the lowest attainable price in the hope of maximising profit upon resale of the item, or parts or components from it, at a later time.
103. [103]
     This may readily be demonstrated from Exhibit 12 which is a list of examples of items purchased and sold by the company.  The most dramatic examples are: a blade plough purchased in August 2012 for $1,700 and sold almost six years later for $30,000 at a 1,664 percent profit; a 4 row centre buster purchased in December 2012 for $1,000 and sold seven and a half years later for $14,000 at a profit of 1,300 percent; a wheel tractor renovator purchased in July 2016 for $600 and sold five and half years later for $8,000 at a profit 1,233 percent.  The 18 items listed in Exhibit 12 were purchased for a total of $66,050 and sold for a total of $182,500 at an average profit rate of 176 percent.
104. [104]
     Exhibit 13 is incapable of demonstrating that any of the items listed are, subjectively to their vendors, waste, but even if one focuses upon those items, , subjectively selected by the complainant as those which are plainly so, far from demonstrating that they comprise “a significant element of the Goebbels business”, they point to the opposite conclusion.
105. [105]
     The complainant, at paragraph 36 of the submissions, identified 21 of the 131 items listed in the invoices in Exhibit 13.  Those 21 items have a total purchase price of $987.25.  The total purchase price of 131 items was $65,923.50.  The 21 items represent less than 1.5 percent of purchase costs; hardly indicative of it being a significant element of the business.
106. [106]
     For all of these reasons, contrary to the appellant’s submissions at paragraph 32, I cannot be satisfied that the material received on to the site from farm clearance sales considered by the trial Magistrate was waste for the purposes of the EP Act, such that I could be satisfied that ERA 62 was carried out by the company.
107. [107]
     The complainant failed to prove his case.  Having fully reheard the matter on appeal(even considering the contradictory approach on appeal), no different conclusion can be reached. 
108. [108]
     This ground of appeal fails.

The second error – misapplication of the 6t/6m³ general waste provision

109. [109]
     The second alleged error arises from the learned Magistrate’s statement in her reasons, having observed that there was “evidence that the business dismantles and sorts machinery and other items brought on to site”, that “the threshold issue and question in these proceedings, therefore, is whether the business received on to site waste for the purposes of the legislation and, if so, was more than 6m³ of such waste stored or sorted on site?”
110. [110]
     For the reasons already expressed, I consider the Magistrate’s formulation of this question using “stored or sorted”, incorrect.  In the context of this case, the relevant exception under paragraph 2(h)(i) of ERA 62 to the relevant activity involves sorting, not storage, of the waste.  It may be that sorted waste if it remains on site could also said to be stored, but that is not what paragraph 2(h)(i) is directed if the relevant activity is receiving and sorting, dismantling or baling of waste.
111. [111]
     While it might be argued that the company also operated the facility for receiving and  storing waste, for reasons already explained, it was no part of the complainant’s case that any storage of waste by the company was temporary before it was moved to a waste facility. 
112. [112]
     The appellant’s written submissions on this asserted error are as follows:

3. “37.
   But the way in which the trial Judge described the ‘threshold issue’ set out above exposes error in her Honour’s application of the exemption provision.  A review of the relevant parts of s 62 reveals that:

1. section 62(1) provides that the ERA includes, inter alia, the receipt of an unspecified quantum of waste on to the facility, and the subsequent sorting, dismantling or baling, and its subsequent sorting, dismantling or baling; and

2. section 62(2)(h)(i) excuses from the relevant activity the use of a facility for sorting or storing less than 6t/6m³ of general waste at any one time.

38. Excluding exemption 62(2)(h)(i) does not require a complainant to satisfy the court that general waste observed at the facility exceeding 6t/6m³ was also waste at the time it was received on to the site – instead, the ERA is determined to have occurred so long as:

1. first there is evidence that some waste was received on to the site, which was subsequently sorted, dismantled or baled; and

2. secondly, at the relevant time of the offending, there was greater than 6t/6m³ of general waste being sorted or stored on the site.

39. Put another way, the court is not required to determine the provenance of the general waste exceeding 6t/6m³ and, in particular, whether it was waste at the point of receipt on to the site.  This is inconsistent with the “threshold issue” as applied by the trial Magistrate, and exposes error which requires intervention by this Court.

40. For the purposes of this rehearing on the evidence, and upon a proper application of the s 62(2)(h)(i) exclusory provision, it is submitted that the court would be satisfied that:

1. First, there was then greater than 6t/6m³ of general waste observed at the facility by DES officers; and

2. Secondly, Goebbels received at least some material on to the site that was “waste” at the point of receipt on to the site.”

113. [113]
     In my view, the appellant’s submissions should be rejected; and not just because they are inconsistent with the case run at trial as already explained.
114. [114]
     First, for reasons already explained, the submissions seek to dissociate the exempted activity of sorting or storing from the otherwise prohibited activities of receiving and sorting, dismantling or baling waste, under paragraph 62(1)(a), or receiving and temporarily storing waste before it is moved to a waste facility, under paragraph 62(1)(b).  The contended for, dissociated, construction, fails to engage with the environmentally relevant activity being resource recovery and transfer facility operation which consists of operating a facility for the two prescribed activities in paragraphs 62(1).  The nature of the operation of a transfer facility inheres in the receipt of waste and that waste then being sorted, dismantled or baled, or temporarily stored before movement to a waste facility.
115. [115]
     The appellant’s contented for construction would result in the prescribed activity of resource recovery and transfer operation being engaged in if, on any given day, 6t/6m³ of waste was present at the facility, no matter when received nor whether received as waste, provided some waste, entirely unrelated and of an unknown quantity, had ever been received on site.^[16]
116. [116]
     The contented for construction would result in the prescribed activity being engaged in if 6t/6m³ of general waste was present on a day in year 5, if it were able to be proven that, for example, 0.5t/0.5m³ of unrelated waste was received on site in year 1; even though that received waste may have been disposed of in year 1 and no further waste received.
117. [117]
     The contended for construction would result in the prescribed activity being engaged in if, in the last example, none of the 6t/6m³ general waste found present in year 5 was in fact waste when it was received on to site and simply deteriorated to the point it was considered waste in year 5.
118. [118]
     It is to be borne in mind that, on the appellant’s submissions on appeal, whether the material was waste is to be determined according to the subjective state of mind of the person disposing of the material at the time of disposal.  In the last example that would never be able to be satisfied.^[17]
119. [119]
     By a footnote to paragraph 38 of his written submissions set out above, the appellant contends:

“Further, although the appellant submits it is not necessary to do so, it is submitted that the direct evidence and proper inferences from that evidence also shows that there was material, which was waste at the time it was received on site, which far exceeded 6t/6m³.  The alternative argument forms part of ground appeal 3.”

120. [120]
     I do not accept that submission.  In my view, it cannot be accepted because of the way in which the case was conducted at first instance.  I would concur with the learned Magistrate’s description of the case conducted by the complainant as being a broad brush approach without particular identification of items as waste.  The case was conducted, as already explained, on the basis that the complainant did have to prove that the material came on to the site as waste.  The complainant failed to prove that the material was received as waste. 
121. [121]
     On the appeal, the appellant eschews the need to prove that any of the waste which it says was present on site was received as waste.  The broad brush, unparticularised approach below makes it no easier for the appellant to establish its case on appeal.  The appellant submits that by looking at the physical evidence, the photographs and the video footage, the court would simply conclude that much of the material on site is “rubbish” on a site of which it submits “parts of it resemble a tip”.^[18]  He submits that a consideration of that evidence demonstrates that “there was an operating facility for the receipt, dismantling, sorting etcetera of waste”.^[19]  However, it invites the Court to consider material depicted in the photographs and video evidence as having that quality against the evidence of Mr Goebbels, which the Magistrate accepted, and without any real particularisation of what parts of the material should be considered in that way, bearing in mind Mr Goebbels evidence.  It further invites the Court to consider such unparticularised parts of the material as the Court may conclude fits that description as being more than 6t/6m³ and that this is sufficient regardless of whether that material was waste when received.
122. [122]
     Mr Goebbels’ evidence does not stand alone in this regard.  There is the evidence in Exhibits 12 and 13 and his evidence about those exhibits.  For reasons already explained, I do not accept that evidence demonstrates that the company was purchasing (receiving) waste.
123. [123]
     There is a further point that can be made in considering this asserted error and the appellant’s contended for construction. Because of the broad brush approach taken in proof of the complainant’s case and the failure to identify particular items, a piece machinery acquired in year 1 which remained untouched, unsold and sorted (or even stored) on site in year 5 would be liable to be labelled waste on the appellant’s construction.  On the construction now asserted, that could be so whether it was waste when received on site or not.  On the construction asserted below, its characterisation as waste in year 5 could be used to attribute, retrospectively, that characterisation of it when it was received.  Yet to take each of the examples referred to in Exhibit 12 referred to above, the sales of those items in years 6, 7 and 8 at great profit clearly demonstrates that considering them waste in year 5 would be a complete mischaracterisation.  This also demonstrates the arbitrariness of the appellant’s approach to viewing any particular item or material on site as waste at any point in time.
124. [124]
     In oral submissions, the appellant sought to identify some further items in a more particular way: “vast areas of old tyres, farm gates, rusting lengths of metal”.  Bed springs were also identified.  However, in my view, the same observations as to characterisation of them at an arbitrary time as waste may equally be applied to those items as to others.
125. [125]
     In my view, on the whole of the evidence, the inferences which the appellant seeks the Court to draw are not open or, at least, are certainly not the only inferences open.
126. [126]
     Again, in my view, the case now advanced by the appellant under the second alleged error is not able to be proven on the evidence, even if the Court were to accept the appellant’s contention (now) that all need be proven is that at some point some waste of any volume was received on the site; which the Court does not accept.
127. [127]
     The second ground of appeal fails.

The third error – making findings of fact contrary to evidence

128. [128]
     This third ground of appeal challenges the learned Magistrate’s finding that the complainant had not proven beyond reasonable doubt that an ERA was being carried out on the site.  That is, it challenges the learned Magistrate’s ultimate finding.  As already referred to, the findings of fact set out above, made by the Magistrate are not themselves challenged.  That is a relevant  and an important consideration.
129. [129]
     The appellant submission at paragraph 48 of his written submissions is:

“Having regard to that evidence, and in particular the nature and quantum of material observed on the site, it is submitted the Court would be satisfied that the trial Magistrate’s finding that the complainant had not proved the appropriate standard that an ERA was being carried out on the site was either ‘glaring improbable’ or ‘contrary to compelling inferences’, and that on the facts as found only conclusion open was that an ERA was being carried out as alleged by DES.”

130. [130]
     The appellant does not identify which of the facts found by the Magistrate compelled a conclusion that an ERA was being carried out.  In my view, none of the unchallenged, found facts set out above, alone or in any combination, compels such a conclusion to the exclusion of any other.  In my view, I could not conclude that they do.  To the contrary, I would conclude, as the Magistrate did, that an acceptance of those facts does not prove that the company was operating a facility for receiving and sorting, dismantling or baling waste (or for receiving and temporarily storing waste before it is moved to a waste facility).
131. [131]
     The appellant’s submission that the Magistrate finding that the complainant had not proved beyond reasonable doubt that an ERA was being carried out was “glaring improbable” or “contrary to compelling inferences” is based on aerial photographs, still images taken at the site and bodyworn camera footage taken on a walk-through of the site.  Those expressions are taken from the plurality reasons in Fox v Percy.^[20]
132. [132]
     In essence, the appellant’s submission is that one need look only at those photographs and video footage to be satisfied that much of what is depicted is waste and that the company thus carried on the ERA on site. The photographic and video evidence does not stand alone.  It must be considered in the context of all the evidence in the case.  That evidence includes Exhibits 12 and 13, the content of which has already been analysed, and Mr Goebbels’ evidence including about items which can be seen in the photographs and footage.  The Magistrate’s unchallenged findings of fact are consistent with the body of evidence.
133. [133]
     When the photographs and video recording are considered in that context, the learned Magistrate’s ultimate conclusion is not glaringly improbable.  It is, in my view, more probable than not; particularly where the case was being  conducted on a broad brush, unparticularised basis and an explanation of the presence of the items on site had been given by Mr Goebbels in the context of the business conducted by the company.  In her detailed reasons the learned Magistrate set out at length Mr Goebbels’ evidence concerning various items depicted in the exhibits.  It was uncontradicted evidence which the Magistrate expressly accepted and reflected in her findings of fact.
134. [134]
     Furthermore, considered in the context of all the evidence, the inference that the ERA was being conducted on the site is not compelling.
135. [135]
     Although the appellant maintains its contention that it need not be proven “that general waste exceeding 6t/6m³ which was present on site was waste at the point of receipt onto the site” it nonetheless submits that the same evidence, the photographs and video footage, compel “a finding that the waste exceeding 6t/6m³ which was present on site was waste at the point of its receipt on to the site”.  It contends that the Magistrate’s finding to the contrary was either glaringly improbable or contrary to compelling inferences.
136. [136]
     These submissions must also be rejected for the reasons already explained in respect of this ground of appeal.  They suffer from the same flaws.  They again seek a consideration of those limited parts of the evidence, the photographs and the footage, removed from the rest of the evidentiary body.  They also encounter even greater problems from the broad brush, unparticularised approach because they require the Court to consider the photographs and video images divorced from other evidence including evidence of the nature of the material depicted and explanatory of its presence on site, and to conclude for itself what items depicted would, contrary to that other evidence, nonetheless be found to be waste, both at the time at which the images were taken and at the unknown time of its receipt and such that the quantification requirements were satisfied at both the earlier and latter times.
137. [137]
     No such findings are compelled when all the evidence is considered.  The Magistrate’s finding is neither glaringly improbable or contrary to compelling inferences in the sense explained in Fox v Percy.^[21]
138. [138]
     The inference which the appellant seeks this Court to draw, and which it sought the Magistrate to draw below, is an impressionistic one based on one’s own opinion of what is depicted in images putting aside all the direct evidence of the owner of the premises, the business and the items, about them.  In challenging the learned Magistrate’s ultimate finding that the ERA was not being conducted as “glaringly improbable” requires the intermediate finding that all the evidence given about what was on site in the context of the company’s business was also glaringly improbable.  There is simply no basis to do so; especially in circumstances where the appellant has not challenged the facts found by her Honour.
139. [139]
     The appellant’s case is, in essence, that on the Court’s own consideration of photographs and video recordings it would find that much of it was “rubbish”.^[22]  The Court would then find that what it considers rubbish is waste; both now and “in the subjective minds of those who disposed of it” at the time it which it was received.  Those findings, in my view, are not consistent with the whole of the evidence and the unchallenged findings of fact made upon it by the learned Magistrate.
140. [140]
     No error has been demonstrated in her Honour’s fact finding, her conclusions or her reasons for reaching them.  The third ground fails.

The fourth error – regard to irrelevant considerations

141. [141]
     This ground may be dealt with briefly.
142. [142]
     The appellant identifies that the learned Magistrate in her reasons had regard to two matters: whether the company’s business achieved waste management by preventing the generation of waste and minimising the extent of waste; and an absence of any evidence that the material on site presented a risk to the environment.  It submits that those points are irrelevant to the meaning of waste and that the elements of each offence do not require the prosecution to prove either.  It submits that the fact that the material may be a risk to the environment would only become relevant at the time of sentence to distinguish the objective seriousness of such offences.
143. [143]
     The appellant submitted:

“All the prosecution was required to prove was that Goebbels Machinery received waste on its site and either dismantled, baled or sorted that waste.” (emphasis added)

144. [144]
     In my view, for the reasons set out above, that single sentence correctly states precisely what the prosecution was burdened to prove.  As already observed, its states accurately what the prosecution accepted it was burdened to prove at trial as demonstrated by the way in which the trial was conducted.  However, it also plainly contradicts what the appellant has otherwise contended on the appeal, (contrary to the way in which the case was conducted at trial) as that which the prosecution was burdened to prove.  It contradicts the submission that “the trial Magistrate erred in her application of ERA 62 excusal provisions 62(2)(h)(i), by conflating a requirement to be satisfied that there was greater than 6t/6m³ of general waste sorted and stored at any one time with a requirement to be satisfied that the same 6t or 6m³ of general waste was waste when received historically on the site.”^[23]
145. [145]
     It contradicts the submissions made at each of paragraphs 17, 31, 32, 37, 38, 39 and 40 of the written submissions on appeal set out above.
146. [146]
     It contradicts the appellant’s concluding submission in respect of the second asserted error at paragraph 42 that:

“In summary, the primary Magistrate erred in considering that it was incumbent on the complainant to demonstrate to at least 6t/6m³ of general waste was received on to the site.  Instead, upon being satisfied that there was presently greater than 6t/6m³ of general waste stored and sorted on the site, the only obligation upon the complainant was to demonstrate that some waste was received on to site and, have regard to the evidence set out above, the Court would be satisfied that this fact has been proved to the appropriate standard.”^[24]

147. [147]
     I do not accept that the points identified by the appellant are entirely irrelevant to the meaning of waste.  Her Honour was construing the meaning of “waste” in the context of a prescribed activity which, as explained above, was set out in a regulation only permitted to be prescribed if the Governor in Council was satisfied that a contaminate will or may be released into the environment when the activity is carried out and the release of the contaminant will or may cause environmental harm.^[25]
148. [148]
     In any event, in the part of her reasons in which her Honour referred to those matters, she was merely referring to submissions which each of the complainant and the defendants had made in relation to the objects of the Act set out s 3 and how those objects are to be achieved as set out in s 4.
149. [149]
     In my view, there is nothing in her Honour’s reasons from which it could be concluded that those matters were in any way material to: her Honour’s construing of the term “waste”; her Honour’s conclusions as to whether the material on site was waste; or her Honour’s ultimate conclusion that the complainant had failed to prove beyond reasonable doubt that the company was carrying on the environmental activity. 
150. [150]
     This grounds also fails.

Disposition

151. [151]
     For all the reasons set out above, the appellant has failed to demonstrate any error.  The appeal should be dismissed.