THE NSW Land and Environment Court will redetermine a waste dumping case against former Port Stephens mayor Bruce MacKenzie's family company after an appeal court found a judge made errors of law to find the company not guilty.
The NSW Court of Criminal Appeal found Justice Nicola Pain made errors of law, "misconstrued" the definition of waste under environmental law, misdirected herself, made findings that were not open to her on the facts in the case and "rewrote the language" about exemptions available to the MacKenzie company Grafil to accord with what she "considered to be a sensible and practical outcome".
Land and Environment Court Justice Brian Preston, one of three judges on the appeal court, found Justice Pain erred in a majority of 15 questions raised by the Environment Protection Authority after it lost its case against Grafil and Mr MacKenzie's son Robert in June, 2018.
After a three-week trial in 2018 Justice Pain savaged the EPA case that Grafil and Robert MacKenzie ran an unlawful waste dump at their Salt Ash business site where demolition waste containing asbestos was stockpiled.
Justice Pain found the EPA case "consistently failed to recognise" a 2009 sand extraction approval that included road construction and Grafil's argument the demolition waste was stockpiled to build the roads rather than being dumped.
Up to 40,000 tonnes of material was dumped between October, 2012 and May, 2013. The court was told remediating the stockpiles could cost $12 million in asbestos waste disposal fees.
The Court of Criminal Appeal rejected Justice Pain's findings that the demolition material was not waste as defined under NSW environmental law and that it was temporarily stockpiled.
It also rejected her assessment that the demolition material was not asbestos waste because of the small amount of asbestos detected.
"Very small amounts of asbestos can pose unacceptable risks to human health and the environment. Here, the trial judge found that the total amount of asbestos in the bulk samples was 634.64 grams. Whilst that might be 'incredibly minor' in comparison to the upper estimate of 44,000 tonnes of materials in the stockpiles, it nevertheless was sufficient to cause severe risk to human health if people were to be exposed to the asbestos," Justice Preston said.
"The amount of asbestos that the material contains or its relative proportion to the volume of material are not relevant to whether the material contains asbestos."
The charge of running a waste facility without lawful facility carries a maximum $1 million fine.
The matter was returned to the Land and Environment Court for a new determination based on the appeal court's responses to the 15 questions.