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
RESPONDENT
Baranov
Lane Cove CouncilFILE 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, 258CASES 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 642DATES OF HEARING: 4/10/01, 18/12/01, 19/12/01 EX TEMPORE
JUDGMENT DATE :
12/19/2001LEGAL REPRESENTATIVES:
APPLICANT
Mr T Howard (Barrister)SOLICITORS
Arraj LawyersRESPONDENT
SOLICITORS
Mr D Parry (Barrister)
Pike Pike and Fenwick
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMATTER No. 60002 of 2001
CORAM: Cowdroy J
DECISION DATE: 19/12/01
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:-
(3) A person must not permit any waters to be polluted.(2) A person must not cause 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.…
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- Case
- [2001] NSWLEC 292
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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