FORMER Port Stephens mayor Bruce MacKenzie's family company faces a multi-million dollar clean-up bill and fines after a failed High Court appeal bid over unlawful waste dumping.
The High Court on Friday refused special leave to appeal applications by Grafil Pty Ltd, and Mr Mackenzie's son Robert, against a ruling last year that leaves them open to clean-up costs and potential fines in the millions of dollars.
The NSW Environment Protection Authority launched a criminal prosecution in 2016 against Grafil, with Bruce and Robert Mackenzie as sole directors, and a separate prosecution against Robert Mackenzie, after 44,000 tonnes of Sydney demolition waste was dumped at Macka's Sand at Salt Ash from 2012.
The prosecution was launched three years after stockpiles of waste up to eight metres high, 40 metres wide and 100 metres long were found near and in waterways.
Grafil successfully defended a charge of operating an unlawful waste dump at the site, and Robert MacKenzie of special executive liability as a director, after a Land and Environment Court hearing in 2018, that included evidence of asbestos in some of the demolition material.
The unlawful waste dumping charge, under the Protection of the Environment Operations Act, carries a $1 million maximum penalty with a further penalty of $120,000 for each day the offence continues.
The not guilty finding was overturned by the NSW Court of Criminal Appeal in August after Land and Environment Court Justice Nicola Pain was found to have erred in a majority of 15 questions raised by the EPA after the decision against it.
The 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 Grafil to accord with what the judge "considered to be a sensible and practical outcome".
In the High Court on Friday Grafil and Robert MacKenzie were represented by leading Australian barrister Bret Walker, SC.
The case is returned to Justice Pain for a redetermination at a later date after the High Court rejected the Grafil application for special leave to appeal the Court of Criminal Appeal decision.
The 2018 hearing was told four Sydney recycling centres dumped the unauthorised waste at the Salt Ash site between October, 2012 and an EPA raid on the property in May, 2013.
Bruce and Robert MacKenzie challenged the EPA to prove Grafil needed a licence to accept the waste, despite Robert MacKenzie conceding in writing shortly after the raid that development approval was needed for "use of materials designated as waste on the site".
The hearing in 2018 was told the two men were "the only targets" of the EPA, with no prosecutions against the recycling centres or companies that transported the waste from Sydney to Salt Ash using an unknown number of trucks.
The court heard the material was to be used on an internal road within the site as part of a new sand mining project. The EPA declined to comment while the matter is before the courts.