Baranov v Lane Cove Council - [2001] NSWLEC 292

Reported Decision: (2001) 117 LGERA 412

Land and Environment Court

of New South Wales

CITATION: Baranov v Lane Cove Council [2001] NSWLEC 292

PARTIES:
APPLICANT
Baranov
RESPONDENT
Lane Cove Council

FILE NUMBER(S): 60002 of 2001

CORAM: Cowdroy J

KEY ISSUES: Environmental Offences :- causation

LEGISLATION CITED: Justices Act 1902 ss 133AD, 133AM, 133AN
Protection of the Environment Operations Act 1997 ss 120, 257, 258

CASES CITED: Bagge v Whithead [1892] 2 QB 355;
Coleshill v Manchester Corporation [1928] 1 KB 776;
Environment Protection Authority v Multiplex Constructions Pty Limited (2000) 112 LGERA 1;
Environment Protection Authority v Metalcorp Recyclers Pty Limited [2001] NSWLEC 207;
Hollis v Vabu Pty Limited (2001) 75 ALJR 1356;
Huggins (1730) Ld Raym 1574; 92 ER 518;
McConnell Dowell Constructors (Aust) Pty Lmited v Environment Protection Authority (2000) 50 NSWLR 127;
Rao v Canterbury City Council (2000) 112 LGERA 360;
Royall v The Queen (1990) 172 CLR 378;
Tiger Nominees Pty Limited v State Pollution Control Commission (1991) 25 NSWLR 715;
Wentworth v Rogers (No 3) (1986) 6 NSWLR 642

DATES OF HEARING: 4/10/01, 18/12/01, 19/12/01

EX TEMPORE
JUDGMENT DATE :
12/19/2001

LEGAL REPRESENTATIVES:

APPLICANT
Mr T Howard (Barrister)
SOLICITORS
Arraj Lawyers
RESPONDENT
Mr D Parry (Barrister)
SOLICITORS
Pike Pike and Fenwick

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES MATTER No. 60002 of 2001
CORAM: Cowdroy J
DECISION DATE: 19/12/01

Mark Baranov

Lane Cove Council

JUDGMENT

1. The appellant appeals pursuant to Part 5B of the Justices Act 1902 (“the Justices Act”) against a conviction and sentence imposed by Magistrate O’Shane of the Local Court sitting at Ryde on 8 March 2001. Leave to appeal was granted by this Court on 4 October 2001 pursuant to s 133AD(1) of the Justices Act because the appellant was convicted in his absence. The appeal is a rehearing ‘on the transcripts of evidence heard before the Magistrate who made the conviction’ pursuant to s 133AM(1) of the Justices Act however leave was granted to both the prosecutor (“the council”) and the appellant to adduce further evidence pursuant to s 133AN of that Act.

Facts

The penalty infringement notice

2. On 3 March 2000 the council posted to the appellant an infringement notice (“the notice”). The notice required the appellant pay $750 for allegedly committing the offence of ‘cause/permit waters to be polluted’ pursuant to s 120 of the Protection of the Environment Operations Act 1997 (“the PEO Act”). Section 120(2) of the PEO Act provides:-

(2) A person must not cause any waters to be polluted
(3) A person must not permit any waters to be polluted.

3. The notice was issued pursuant to s 224 of the PEO Act.

4. Pursuant to s 223 of the PEO Act the appellant elected not to pay the amount specified in the penalty notice but elected to have the matter delt with by a court.

The hearing of 18 December 2000

5.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] NSWLEC 292
Decision Date: 12/19/2001

CaseChat Overview and Summary

In the case of Baranov v Lane Cove Council, the appellant, Mark Baranov, appealed against a conviction and sentence imposed by the Local Court for allegedly causing water pollution. The council issued an infringement notice under the Protection of the Environment Operations Act 1997, alleging that Baranov caused or permitted water pollution at a construction site. Baranov opted to contest the charge in court rather than pay the penalty. The primary legal issues in this case were whether Baranov was the "occupier" of the premises as defined by the PEO Act, and if his failure to prevent the pollution could be attributed to him under the principles of vicarious liability or as a non-delegable duty.

The Court considered the terms of the building contract between Baranov and the builder, which indicated that Baranov had limited control over the builder's actions and the site. The Court found that Baranov did not exercise sufficient control over the builder or the site to be considered an "occupier" under the PEO Act. Furthermore, the Court held that the requirement to maintain sediment control was not a non-delegable duty that could be attributed to Baranov as he had no legal control over the builder's actions.

As a result, the Court held that the council had not proven beyond a reasonable doubt that Baranov caused the pollution. Consequently, the Court ordered the appeal to be upheld, the conviction quashed, and the charge dismissed.

Orders