Bartter Enterprises Pty Ltd v Environment Protection Authority

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Bartter Enterprises Pty Ltd v Environment Protection Authority [2022] NSWCCA 43

Hearing dates:

18 February 2022

Date of orders:

2 March 2022

Decision date:

02 March 2022

Before:

Basten JA at [1];
Davies J at [33];
Dhanji J at [38]

Decision:

Appeal dismissed.

Catchwords:

ENVIRONMENT AND PLANNING – offences – appeal – failure to comply with condition of environment protection licence – condition to maintain plant in a proper and efficient condition – meaning of “maintain” – release of ammonia gas during upgrade works – circuit piping not able to contain ammonia – Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33 applied

Legislation Cited:

Clean Air Act 1961 (NSW), s 14

Protection of the Environment Operations Act 1997 (NSW), s 64

Cases Cited:

Environment Protection Authority v Bartter Enterprises Pty Ltd (No 4) [2021] NSWLEC 45

Genkem Pty Ltd v Environmental Protection Authority (1994) 35 NSWLR 33

Category:

Principal judgment

Parties:

Bartter Enterprises Pty Ltd (Appellant)
Environment Protection Authority (Respondent)

Representation:

Counsel:
Mr T Howard SC / Dr J Smith (Appellant)
Mr D Buchanan SC / Ms G E Lewer

Solicitors:
Hones Lawyers (Appellant)
Legal Services Branch, Environment Protection Authority (Respondent)

File Number(s):

2019/201063

 Decision under appeal 

Court or tribunal:

Land and Environment Court

Jurisdiction:

Class 5

Citation:

[2020] NSWLEC 114

Date of Decision:

12 August 2020

Before:

Duggan J

File Number(s):

2019/201063

Judgment

1. BASTEN JA: The appellant, Bartter Enterprises Pty Ltd, operates a poultry processing business in Beresfield, north-west of Newcastle. Part of the facilities included a blast freezer and cold store building for processed poultry meat awaiting distribution. On 29 June 2018, while new fan-coil units were being installed, there was a release of ammonia into the atmosphere. Some two weeks earlier, the supply line piping liquid ammonia through the freezer had been evacuated and shut down. A flange, known as a “base plate”, at the bottom of the suction valve had been removed, so that the valve remained open. When the contractor responsible for replacing the fan-coil units had completed its work, an employee opened a “liquid stop valve” which released liquid ammonia from the plant room into the “southern circuit”. No check was made before taking that step to see that the circuit was otherwise intact so as to prevent the release of ammonia directly into the atmosphere. In fact, the base plate had not been replaced in the suction valve, so that the system was not intact. Further, a valve which permitted the outward-bound ammonia to be diverted directly across to the return pipe was not closed, so that the newly circulating ammonia was almost immediately released into the atmosphere.

2. The immediacy of the release allowed the employee who had opened the stop valve to reverse the action, with the result that the ammonia release lasted for only some 10 seconds. The possibility of a serious threat to human health was thus brought under control.

3. The appellant…