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Monday 21 March 2016

Recent Land & Environment Court waste judgment of interest

Water NSW v Faulkner [2016] NSWLEC 17

On 11 March 2016 Chief Justice Preston of the New South Wales Land and Environment Court (LEC) handed down his judgement in Water NSW v Faulkner [2016] NSWLEC 17.

Administrative Issues
The LEC heard two administrative issues on i) whether the LEC had the jurisdiction to hear the matter and ii) whether Water NSW was empowered under the POEO Act to prosecute.

Both questions were answered by Preston CJ in the affirmative.

Background and Charges
Mr Faulkner was a garbage truck driver, employed by “Highland Tip Trips”. It was alleged that Mr Faulkner deposited waste in bushland off Rowlands Road at Kangaloon, in a catchment area (special area).

Mr Faulkner was charged with committing four offences under the Sydney Water Catchment Management Regulation 2008 (NSW) as follows:

1)    A person must not bring or leave any waste to a special area;

2)    A person must not enter or remain on land in a special area where a sign or notice has been erected requiring persons not to enter or remain on the land;

3)    A person must not drive a vehicle on special areas; and

4)    A person must not drive, ride or be a passenger in or on any vehicle, or damage or remove any plant or part of a plant on a special area.

Mr Faulkner was also charged with one offence under the Protection of the Environment Operations Act 1997 (NSW) for unlawfully transporting and depositing waste on land in a catchment area.
Mr Faulkner pleaded not guilty to all charges.

It was agreed between the parties that the evidence established that waste had been disposed of in the special area and that this area could not lawfully be used as a waste facility for that waste.

The critical question of the case whether it was Mr Faulkner who deposited the waste in the special area.

Prosecution’s Case
In order to succeed, the Prosecution had to prove their case beyond reasonable doubt (criminal standard). The Prosecution’s case was based on circumstantial evidence that drew the conclusion that Mr Faulkner was the only person who could have deposited the waste.

Mr Faulkner’s Defence
Mr Faulkner told the court that the truck he was driving at the time the offence was alleged to have occurred was defective, in that the rear door came open during waste collection allowing rubbish to fall off the truck. The person who reported the rubbish noted that the waste was strewn over the road not far from the pile of waste. Mr Faulkner submitted that the rubbish may have fallen off the back of his truck may have been collected by another person and deposited onto the waste pile.

Mr Faulkner also submitted evidence of a telephone call that he made reporting the defective rear door to a more senior employee as soon as he was made aware of it.

Findings
Preston CJ found that the Prosecution had not proved their case beyond reasonable doubt and accepted that the waste may have been deposited by a two-step process (i.e. falling of the back of Mr Faulkner’s truck and then being collected by another for deposit on the waste pile.)

Preston CJ dismissed all charges against Mr Faulkner.

Take home message
It is important to ensure that waste vehicles are maintained and fit for purpose at all times. Waste transport companies should also ensure that waste vehicle drivers are instructed on what their obligations under environment protection legislation are and what are the appropriate actions to take if they find their truck is defective.

Are your management plans and training manuals up to date?
Please follow the link below to the judgement.


If you require assistance contact: 

Kim Glassborow - Principal Lawyer on M: 0481 287 528 or kglassborow@gandblawyers.com.au;  

Katherine Edwards - Lawyer on M: 0401 175 934 or kedwards@gandblawyers.com.au.
 

 

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