Problem Question 1:

Late in the afternoon on 1 January 2023, Lu;y who owns a waste product removal business,
collects a truckload of contaminated soil from excavations at a building site in Paddington. He
drives the full truck back to his company’s yard in Mascot. He leaves it parked there overnight,
intending to drive it to a remote dump the next day. A municipal inspector sees the truck in the
yard and discovers that the soil in the truck is contaminated by toxic waste. The inspector tells
Lu;y that the law forbids storing such materials near a river or river bed without a special
permit. Lu;y admits that the soil is contaminated and says that he cannot produce a permit.
The Cooks River is two kilometres from the haulage company’s yard. The inspector makes a
report to the Police, who charge Lu;y with a breach of s 3 of an Act called the Toxic
Contamination Avoidance Act (‘The Act’). Lu;y is given the option of admitting guilt and paying a
fine of $1,000. Otherwise, he will have to defend the charge in court. Lu;y asks for your advice.
He admits the soil was left in the yard, but says it was only left there overnight and that he
always intended to move it the next day. He says that, in these circumstances, he does not think
he contravened the Act.

Section 3 of the Act

“A person shall not store or permit the storage of toxic materials within five kilometres of a river
or river bed without first obtaining a permit from the Minister.”

Objects of the Act

“to protect the water resources of New South Wales; and to prevent harm caused by the
accidental spread of contaminants”

Advise Lu*y as to whether he should pay the $1,000 fine or defend the charge in court.

SUMMARY OF RELEVANT FACTS

• Lu;y collects a truckload of contaminated soil
• Lu;y parks the truck in Mascot overnight, 2 kilometres away from the Cooks River.
• Lu;y intends to drive it to a remote dump the next day
• Lu;y can’t provide a permit
• Lu;y claims he is not in breach of that Act as he did not “store” the material

ISSUE(S)
• The main issue on which Lu;y requires advice is whether or not he was in contravention
of s 3 of the Toxic Contamination Avoidance Act (‘the Act’).
• Section 3 of the Act contains elements that need to be satisfied before a breach of that
section can be established (see below).
• These elements need to be explored to determine whether they are satisfied.

RULE/RELEVANT LAW
1. Section 3 of the Act
o “A person shall not store or permit the storage of toxic materials within five
kilometres of a river or river bed without first obtaining a permit from the
Minister.”
o Therefore, it must be proved that:
• A person has stored or permitted the storage of toxic materials.
• The toxic material are stored within five kilometres or a river or riverbed
• The person did not first obtain a permit from the Minister
APPLICATION
1. A person has stored or permitted the storage of toxic materials
• Clearly Lu;y is a person, and clearly the materials in the truck have been
established as toxic/contaminated (see facts).
• However, Lu;y says that he intended to only temporarily leave them
overnight before disposing of them the next day.
• Thus, Lu;y may be able to argue that he did not “store” the materials for
the purposes of s 3 of the Act.
• This raises a question of statutory interpretation. Three principles are
relevant:
• Literal approach: ordinary, actual, everyday meaning, or
dictionary use of words.
• Golden rule: allows words to be interpreted so as to make the
resulting definition not “absurd”.
• Purpose approach: interpret an Act (or provisions of that Act) in
accordance with the stated purposes or objects of the Act.
• Of these approaches, s 33 of the Interpretation Act 1987 (NSW) requires
the purposive approach to be taken in interpreting provisions of a
statute.
• The objects of the Act are:
• to protect the water resources of New South Wales; and
• to prevent harm caused by the accidental spread of
contaminants”
• Taking into account the objects of the Act, it appears that the main
purpose of the Act is to protect water resources in NSW against
accidental contamination.
• It is likely that a truckload of toxic materials, especially left unattended
overnight, would result in an accident that may cause contamination of
the Cooks River, which is only 3 km from the haulage yard.
• Thus it is likely that “store” will include the temporary leaving of a
truckload of toxic materials overnight, taking into account the objects of
the Act.
• Interpreting “store” as to exclude Lu;y’s situation would also seem to
work against the objects of the Act, as then anyone who leaves toxic
material close to water sources in NSW on a temporary basis would not
seem to be in breach of this section.
• So, it is most likely that Lu;y will be found to have ‘stored or permitted
the storage of toxic materials’ – the first element of s 3 of the Act.
2. The toxic materials are stored within five kilometres of a river or riverbed.
o This element is satisfied. The facts state that the haulage yard is 3km from the
Cooks River – within 5km of a river/riverbed.
3. The person did not first obtain a permit from the Minister
o This element is also conceded in the facts – Lu;y has admitted that he cannot
produce a permit, and assumedly did not obtain one.
CONCLUSION
• Based on the preceding analysis, the court will likely find Lu;y guilty of an o;ence under
s 3 of the Act.
• On this basis, I would advise Lu;y to pay the $1,000 fine and not defend the charge in
court.