Blacktown City Council v Aland B & W Pty Ltd

[2022] NSWLC 15

Local Court

New South Wales

Medium Neutral Citation:

Blacktown City Council v Aland B & W Pty Ltd [2022] NSWLC 15

Hearing dates:

8 July 2022 and 29 July 2022

Date of orders:

29 July 2022

Decision date:

29 July 2022

Jurisdiction:

Criminal

Before:

van Zuylen LCM

Decision:

See paragraph [33]

Catchwords:

Criminal Law – pollute waters

Legislation Cited:

Protection of the Environment Operations Act 1997 (NSW)

Crimes (Sentencing Procedure) Act1999 (NSW)

Cases Cited:

R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317

Environment Protection Authority v Gosford City Council (1997) 95 LGERA 338

Environment Protection Authority v Ravensworth Pty Ltd [2012] NSWLEC 222

Blacktown City Council v Danny Constructions (Unreported, Local Court of NSW, Robinson LCM, 28 May 2019)

Blacktown City Council v Betacon Constructions Pty Ltd (Unreported, Local Court of NSW, Brown LCM, 24 October 2017)

Environment Protection Authority v Tomingley Gold Operations Pty Ltd [2015] NSWLC 21

Fairfield City Council v Quality Handling Systems Pty Ltd [2013] NSWLC 7

Category:

Sentence

Parties:

Blacktown City Council (Prosecutor)
Aland B & W Pty Ltd (Defendant)

Representation:

Solicitors: Ms Sinclair for Blacktown City Council
Mr Saleam for Aland B & W Pty Ltd

File Number(s):

2022/123489

JUDGMENT

1. The defendant Aland B & W Pty Ltd has pleaded guilty to 2 charges of Pollute Waters pursuant to section 120 of the Protection of the Environment Operations Act 1997 (NSW). Sequence 1 occurred on or shortly before 2 July 2021 and Sequence 2 occurred shortly before 9 July 2021.

2. An offence under section 120 carries a maximum penalty for a corporation of $1,000,000 pursuant to section 123 of the Protection of the Environment Operations Act 1997. The maximum monetary penalty that can be imposed in the Local Court is $110,000. The principles stated by the Court of Criminal Appeal in R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317 apply in that the jurisdictional maximum is not a maximum penalty for any offence triable within that jurisdiction.

3. The defendant’s solicitor Mr Saleam, in an email dated 24 May 2022, advised that the Defendant would plead guilty to all sequences on 26 May 2022. That date was in fact the first mention date for the case. The first sentence date of 23 June 2022 was adjourned because the Defendant’s solicitor had Covid. Sentencing submissions were heard on 8 July 2022. I am satisfied that the plea was entered at the earliest possible opportunity. I allow a 25% discount for the early plea of guilty.

4. The Protection of the Environment Operations Act 1997 (NSW) defines water pollution or pollution of waters to include placing any matter (whether solid, liquid or gaseous) in a position where it is washed, or likely to be washed into any drain, channel or gutter.

FACTS

5. The Defendant company is the designer and constructor of 2 developments at Isla Street Schofields. The total development is for 6 residential flat buildings containing a total of 374 units. The Court was advised in the sentencing hearing by the solicitor for the Defendant that the value of the contract is around 50 million dollars. One of the conditions of the Development Consent requires the Defendant to implement, manage and monitor soil erosion and sediment control measures on the properties. More specifically, some of the soil erosion and sediment control measures included correctly stabilising the site access to reduce the likelihood of vehicles tracking soil onto public roads and ensuring all weather entry and exit. The Defendant was to install and maintain a sediment filter and sand bags to prevent stormwater pollution.

6. On 7 May 2021 at 10.58 am, the Council Environment Health Officer, Amelia Tabrett attended the properties in response to resident complaints of truck movements tracking mud and other inorganic material on roads in the vicinity of the construction site, which was polluting the area.

7. Ms Tabrett observed that there was no stabilised access point for entry or exit to the site. The unstabilised area on the site was approximately 16m by 12m. Consequently, there was a thick layer of mud and sediment on the road approximately 70m by 10m. There was no sediment fence installed on the southern side of the property.

8. Ms Tabrett had a conversation with Mr Ash Goro the site manager, Ms Tabrett said:

“You have a large site here, usually with sites this big, with many vehicle movements there are much more extensive sediment and erosion controls to prevent sediment being tracked from the site onto the road.”

Mr Goro said:

“Yeah, I understand. I’ll have this end closed off again and get some better stabilised access off Isla Street for the trucks.”

Ms Tabrett thanked him and said she would do a reinspection. Mr Goro later sent a text with photos showing a road had been cleaned and temporary fencing installed.

9. On 2 July 2021, Ms Tabrett reinspected the site. She observed that there was still unstabilised access to the site so consequently, there was a significant amount of mud tracked from the properties onto Isla Street being 170 metres long and 14 metres wide. There are 5 photographs attached to the Facts Sheet which clearly show the large amount of mud and sediment on Isla Street.

10. On 9 July 2021, Ms Tabrett again attended the site for reinspection. It was raining lightly at the time and it had been raining earlier that day. Photos taken on that day showed there was still unstabilised access to the site with a large amount of mud and sediment being tracked onto the length of Isla Street. From my observations of the photographs, there appeared to be even more mud and sediment on Isla Street than there was shown on photographs taken on 2 July 2021. Photographs taken on this occasion also show mud and sediment washing into the gutter and stormwater drain on Isla Street.

11. While Ms Tabrett was taking these photos, the Project Manager Mr Goro approached her and during their conversation, Ms Tabrett advised that stabilised access had not been maintained which was causing sediment to be tracked onto the road and being washed into the gutter. Mr Goro said they were cleaning the road throughout the day, but Ms Tabrett advised that if the site was properly stabilised, the dirt should not be entering the street in the first place.

12. Ms Tabrett again inspected the site on 23 July 2021 and observed that further sediment and erosion control measures had been implemented, including new stabilised access and stormwater drain protection for Isla Street. Although there was still some soil tracked from the site and evident on the road.

13. The property, the subject of the prosecution, is part of the Eastern Creek catchment. Specifically, the stormwater drains into Jerralong Creek and another natural waterway before flowing into Eastern Creek. From my investigations, Eastern Creek is part of the Hawkesbury Nepean catchment located in Greater Western Sydney.

14. Mud, sediment or similar inorganic matter in water can cause turbidity, which reduces the amount of light which is able to penetrate the water, and has the potential to adversely affect organisms living in the water. Turbidity is known to cause environmental harm. However, the Council does not know what volume of mud or sediment was washed into the drain or gutter and has no evidence of any actual environmental harm.

15. Section 241 of the Protection of the Environment Operations Act 1997, says that the matters to be considered in penalty include, the extent of the harm likely to be caused to the environment by the commission of the offence, the practical measure that may be taken to prevent, control, abate or mitigate that harm, the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused by the offence. Subsection 2 says the Court may take into consideration other matters that it considers relevant.

Prosecution Submissions

16. The Prosecutor for the council Ms Sinclair submitted that the defendant could have complied with stabilising the site access and soil should not be tracked onto the roadway and then into the stormwater drains. Ms Sinclair further stated that Blacktown City Council is a rapidly developing area and the council comes across these type of building site issues time and time again. Her written sentencing submissions stated that since February 2020, 150 penalty notices of $8000 have been issued by the Prosecutor’s officers in respect of non-compliant building sites for either water pollution or failing to comply with a prevention notice. She stated that offences of this type have a huge impact on local waterways. The Prosecutor assessed the criminality in the low to mid range of objective seriousness.

Defendant’s Explanation for the Offence and Subjective Circumstances

17. Mr Saleam, for the defendant company, submitted that it was an early plea of guilty. There are no offences of a similar nature and this is out of character. The company cleared up the site on 21 July 2021. He further submitted there was no evidence of environmental damage.

18. Mr Saleam also submitted a Letter of Contrition from Mr Andrew Hrsto, a director of Aland B & W Pty Ltd. His letter expressed remorse on behalf of the company for its failure to observe sediment control measures at the building site. There was consistent and heavy rainfall which hindered the company’s ability to maintain sediment control and difficulties arose with obtaining subcontractors to assist them. However, the Court notes that the project manager was advised of sediment control issues by the Council officer on 7 May 2021, no control measures had been taken by 2 and 9 July 2021, but when Mr Goro spoke to Ms Tabrett while she was taking pictures on 9 July 2021, stabilisation of the site and cleaning of the sediment all over the road took place on 21 July 2021.

19. Mr Hrsto’s Letter of Contrition goes on to describe his company, of over 100 staff, as a reputable builder that considers protection of the environment to be a priority and will strictly adhere to ongoing compliance. The company accepts full responsibility.

20. Also tendered, was a large number of receipts and invoices for road sweeping at the construction site. The Court has considered these carefully. There were 3 inspection dates of the site by Ms Tabrett of Blacktown City Council; 7 May 2021, 2 July 2021 and 9 July 2021. From the receipts, road sweeping took place on 1,3,4,5,9,12,16,18 and 26 June 2021, and 1,6, and 12 July 2021. The cost of road sweeping on the receipts provided is $480 per service. The receipts further show sediment control procedures took place on 12 April 2021, 5 May 2021, 28 August 2021 and periodically thereafter. The Court has not been given any information on how effective the road sweeping was in removing sediment from the road because photographs 3 and 4 taken 2 July 2021, and photographs 3,5,12 and 13 taken on 9 July 2021 show vehicles parked on both sides of Isla Street which would clearly prevent road sweeping of the entire roadway.

Remarks on Sentence and Penalty

21. What is concerning to the Court is the large amount of sediment seen on Isla Street in the photos taken on 2 and 9 July 2021, notwithstanding that there was road sweeping on 1 and 6 July 2021. Road sweeping appears to at best only mitigate the pollute waters offence and does not address the root cause of the sediment getting on to the road, ie, the unstable access points to and from the building site.

22. The Court regards the pollute waters offences as very serious breaches of the Protection of the Environment Operations Act 1997. There is a large amount of sediment on the roads as seen in the photographs. It is important to the environmental health of Eastern Creek and eventually the Hawkesbury Nepean catchment area that it not be polluted by sediment inadequately managed at building sites in Isla Street Schofields flowing into stormwater drains.

23. The Court also observes from the photographs there appears to be inhabited apartment blocks with facing balconies on the other side of Isla Street to the building site. Residents appear to have had to suffer a large amount of sediment all over Isla Street outside their balconies and on the road on which their vehicles may be parked on 2 and 9 July 2021. It was sufficiently concerning to the residents of the area to complain to the council in May 2021.

24. What is also concerning to the Court is that the project manager was alerted to the issue on 7 May 2021, he said he would, “Get better stabilised access off Isla Street for the trucks” and then sent a text with photos showing the cul-de-sac on Manchester Drive cleaned and temporary fencing installed. However, no stabilised main entry/exit was completed until 21 July 2021, while serious pollute waters offences occurred on 2 and 9 July 2021. All that had occurred was that there had been 10 road sweeping procedures in the 47 days between 1 June 2021 and 12 July 2021.

25. Whilst the submissions of the defence and prosecution are that it is in the low to mid range of offences of this type, taking into account the size of the construction site, the scale of pollute waters as set out in the Facts Sheet and photographs, and the undertaking given by the project manager to better stabilise access which did not occur until after 9 July 2021, the Court assesses the level of offending as very much in the mid range of offending.

26. The Court does not give any significance to the director, Mr Hrsto’s letter that there was a period of heavy rainfall hindering them from complying with sediment control. The Court, from its own investigations, looked at the Australian Government Bureau of Meteorology website summarising the weather of Greater Sydney in 2021 which states, “It was very wet in March (2021) with many sites having their wettest March on record with significant flooding on the Hawkesbury River.” The company was alerted by the council in May 2021 and did not appear to properly address the issue until 21 July 2021. The Court is critical of this delay.

27. The Court was provided with a table of sentencing decisions for offences against section 120 of the Protection of the Environment Operations Act 1997. The first decision, EPA v Gosford City Council is a 1997 decision, which the Court gives little weight as it is a 1997 decision, so 25 years ago, the section has been repealed and maximum penalties greatly increased. The next decision is EPA v Ravensworth [2012] NSWLEC 222, sediment laden water (approximately 1.64 megalitres) discharged into Bowman’s Creek, a tributary of the Hunter River, fine of $50,000. The final 2 cases in the table are 2 Local Court matters where there was Court election of penalty notices, first was Blacktown City Council v Danny Constructions Pty Ltd (Unreported, Local Court of NSW, Robinson LCM, 28 May 2019), the defendant was building a dwelling and silt fencing had been installed but not maintained and rock, sand and soil were in a position where it could get into the adjoining gutter, there was a fine of $7500. The final case submitted was Blacktown City Council v Betacon Constructions Pty Ltd (Unreported, Local Court of NSW, Brown LCM, 24 October 2017) where there were 2 dwellings being constructed, a sediment fence was installed but it had been pulled down and not maintained and council officers observed the contractor using a high pressure hose to clean the site with sediment laden water exiting the site and into a stormwater drain. The Local Court cases are of limited assistance in the current case as they of an entirely different scale and are court elections. The Land and Environment case of Ravensworth is also of a very different factual scenario.

28. The Court has also considered 2 other Local Court decisions published on the Judicial Commission of NSW Judicial Commission JIRS system. The first is EPA v Tomingley Gold Operations Pty Ltd [2015] NSWLC 21. The brief facts are that the mine reported to the EPA that sediment laden waters had overflowed from a dam into a paddock downstream leaving a visual layer of sediment. His Honour Magistrate Stewart imposed a fine of $60,000 on count 1 and a fine of $35,000 on count 2. His Honour also quoted at paragraph 43 an earlier Land and Environment Judgment that,

“Care must be taken in essaying the task, as the wide divergence of facts and circumstances leading to the imposition of penalties in a given case for water pollution render guidance from other cases to be of limited utility.”

29. The second Local Court case to be considered is Fairfield City Council v Quality Handling Systems Pty Ltd [2013] NSWLC 7. The brief facts were that the defendant company had been washing stainless steel pickling paste, which is hazardous and dangerous and contains nitric and hydrofluoric acid, into a nearby stormwater drain. The company admitted this procedure had been occurring for 18 months. The fine imposed in that case for one count was $75,000.

30. While the facts are different for both these cases to the current case being considered, it does demonstrate that the Local Court will impose substantial fines in appropriate cases.

31. The Court also considers the Purposes of Sentencing as set out in section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), which include; ensuring that the offender is adequately punished for the offence, to prevent offences by deterring the offender and other persons from committing similar offences, to make the offender accountable for their actions, to denounce the conduct and to recognise the harm done to the community.

32. In the Court’s view, taking into account the scale of the construction site, the amount of sediment all over the road as shown in the photograph, the council officer alerting the defendant to the issue after a resident’s complaint, the delay in addressing the issues after being alerted to them by a council officer, the large amount of sediment on the road which was the pollute waters offence and all the other matters referred to earlier, that an appropriate fine for sequence 1 is $90,000, and for sequence 2 is $100,000.

33. The Court will apply the maximum discount of 25% for the reasons as set out earlier. Therefore, the fine for Sequence 1 is $67,500, and for Sequence 2 is $75,000. Total fines of $142,500.

34. The Court orders that the Defendant company pay the Prosecution legal costs agreed at $12,000.

Magistrate van Zuylen

Blacktown Local Court

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Decision last updated: 23 March 2023