Bruce MacKenzie's family company and environment watchdog vacated court date because of likely High Court appeal bid

Appeal: Former Port Stephens mayor Bruce MacKenzie and son Robert. Their family company, Grafil Pty Ltd, could seek leave to appeal to the High Court after the NSW Supreme Court overturned their Land and Environment Court win on an unlawful dump case.
Appeal: Former Port Stephens mayor Bruce MacKenzie and son Robert. Their family company, Grafil Pty Ltd, could seek leave to appeal to the High Court after the NSW Supreme Court overturned their Land and Environment Court win on an unlawful dump case.

FORMER Port Stephens mayor Bruce MacKenzie's family company could seek leave to appeal to the High Court after losing an appeal that potentially exposes the company to $12 million in asbestos waste costs.

Grafil Pty Ltd and the NSW Environment Protection Authority vacated a September 6 directions hearing date in the Land and Environment Court after the EPA successfully challenged a 2018 judgment that found the Mackenzie family company did not run an unlawful waste dump at their Macka's Sand business at Salt Ash.

The EPA case alleged pp to 40,000 tonnes of material was dumped and stockpiled at Macka's Sand from Sydney building demolition sites between October, 2012 and May, 2013 without lawful authority. The maximum fine is $1 million.

The EPA also alleged some of the material contained asbestos.

Land and Environment Court Justice Nicola Pain savaged the EPA case in a June, 2018 judgment, but in August three members of the NSW Court of Criminal Appeal found Justice Pain made errors of law to find the company not guilty.

The court found Justice Pain "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 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 EPA after Justice Pain's decision.

Dumped: Some of the stockpiled building demolition material at the Macka's Sand site at Salt Ash. Picture: Environment Protection Authority.

Dumped: Some of the stockpiled building demolition material at the Macka's Sand site at Salt Ash. Picture: Environment Protection Authority.

The appeal court 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 appeal court referred the case back to the Land and Environment Court for redetermination, but the September 6 directions hearing to set new dates for a new determination was vacated.

A spokesperson for the court advised the parties confirmed a special leave application would be made to the High Court.

Bruce MacKenzie and son Robert, who are directors of Grafil Pty Ltd, did not respond to requests for comment.

A spokesperson for the EPA confirmed the application.

"The EPA is aware that on 29 August 2019, Grafil Pty Ltd and its director Robert Mackenzie lodged applications for special leave to appeal to the High Court against the Court of Criminal Appeal's 2 August, 2019 decision," the spokesperson said.

"The EPA has no further comment to make given that the proceedings are currently before the court."

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