The NSW Land and Environment Court has fined a property owner $25,000 and been ordered to pay the EPA’s professional costs after pleading guilty to the offence of using a place as a waste facility for the storage of over 10,000 waste tyres at a property in Jindera NSW without an environmental licence, in contravention of the Protection of the Environment Operations Act.

Key Takeaways

• A property owner who was in a short-term business arrangement with tyre processor Carbon MF Pty Limited has been fined $25,000 for storing over 10,000 tyres at his property in Jindera without an environmental licence.
• Carbon MF Pty Limited and its director were previously fined approx. $500,000 and $60,000 respectively for other offences in relation to waste tyre storage at another site.
• This is the latest in a number of fines imposed as a result of regulatory action taken by the NSW EPA in relation to unlawful tyre storage.

Background

Mr Appleton was the owner and occupier of a 20 ha semi-rural property in Jindera, north of Albury (Premises). In late 2020, Mr Appleton entered into a business arrangement with Mr Fair and became a shareholder in Carbon MF Pty Limited (Carbon MF), which was a company involved in the processing of waste tyres.

From around August 2020 to early 2022, Carbon MF transported waste tyres to the Premises, which were then placed and stored as directed by Mr Appleton. An environmental licence is required to store more than 5 tonnes of waste tyres or 500 waste tyres on a site in NSW. Neither Mr Appleton, Mr Fair or Carbon MF sought an environmental licence for the activities undertaken at the Premises during this time, nor did Mr Appleton receive any monetary compensation from Carbon MF. In early 2022, the relationship between Mr Appleton and Mr Fair deteriorated to the extent that Mr Appleton ceased to be a shareholder of Carbon MF and, as a result, tyres ceased to be brought onto or taken from the Premises.

Investigation

In January 2021, the Greater Hume Shire Council notified the EPA that around 1,000 tyres were being stored at the Premises. An EPA officer conducted a drive-by inspection but was not able to determine whether there were more than 500 tyres on the Premises.

Nothing then appears to have occurred until the Council made a further report in January 2022, shortly after which the EPA executed a search warrant of the Premises. Through the conduct of a manual count and volumetric survey, the EPA determined that there were approximately 7,500 tyres being stored at the Premises.

On 17 October 2023, the EPA issued a Clean-Up Notice to Mr Appleton requiring the removal of the waste tyres such that the total number at the Premises did not exceed 500, including all buried tyres. Mr Appleton then removed approx. 9,500 whole tyres and 45 tonnes of shredded tyres. Between 1,500 and 2,500 whole tyres then remained on the Premises.

Proceedings

The EPA commenced proceedings against Mr Appleton alleging a breach of section 144(1) of the Protection of the Environment Operations Act 1997 (POEO Act) which makes it an offence for a person who is the owner or occupier of any place to use that place, or cause or permit that place to be used, as a waste facility without lawful authority.

At the time of the offence, the maximum penalty for an individual (where no asbestos is involved) was $250,000 plus $60,000 for each day the offence continues.

Sentencing

The Court determined that the offence was at the upper end of the low range of objective seriousness, based on a number of factors:

• While no harm to the environmental actually occurred as a result of Mr Appleton’s conduct, there was a real potential of serious harm arising from the risk of a fire. While tyres are not easily ignitable, once started, tyre fires generate intense heat, produce toxic smoke and are difficult to extinguish.
• Mr Appleton acknowledged that there were a number of steps that he could have taken to prevent, control, abate and mitigate harm, such as ensuring storage was compliant with the Fire & Rescue NSW’s guideline for bulk storage of rubber tyres. Further, Mr Appleton accepted that, while he was not aware of authorisation requirements under the POEO Act for such activities, a person in his position ought reasonably to have made appropriate enquiries and known the serious risk of fire posed by the storage.

The Court also found that subjective considerations were overwhelmingly favourable to Mr Appleton as he had demonstrated a ‘conspicuous and commendable level of remorse’, the financial consequences of his business enterprise with Mr Fair were catastrophic, and he had taken extensive steps to clean up the tyres. The Court also had regard to Mr Appleton’s capacity to pay, given his bankrupt status and reliance on his mother for financial support in the carrying out of clean-up action.

Orders

As a result of its consideration of the above, the Court determined a $50,000 fine with the application of a 50% discount was appropriate, resulting in a fine of $25,000.

The Court made the following further orders:

•  an order requiring Mr Appleton to remove and lawfully dispose of remaining waste tyres at the Premises; and
• an order that Mr Appleton pay the EPA’s professional costs

Of note

This case is the latest in a number of cases that have been brought by the NSW EPA in relation to unlawful tyre storage and reuse.

Notably:

• in November 2023, Carbon MF Pty Limited and Mr Fair were fined approx. $500,000 and $60,000 respectively for other offences in relation to waste tyre storage at another site (see our article on that case here);
• in June 2024, BSV Tyre Recycling Australia Pty Ltd was fined approx. $160,000 in relation to 10 offences for storing tyres and tyre products in contravention of licence conditions for its facility in Revesby;
• in November 2024, Bald Hill Quarry Pty Ltd was fined $341,000 for offences relating to the use of shredded rubber tyres as landfill cover material, in the absence of lawful authorisation (see our article on that case here); and

in April this year, the NSW EPA fined D & N Rubber Refinery under a penalty infringement notice for failing to comply with a prevention notice regarding the unlawful storage of around 130 tonnes of waste tyres at its premises in Smithfield.