Budd v Northern Midlands Council
[2008] TASSC 62
•24 October 2008
[2008] TASSC 62
CITATION: Budd v Northern Midlands Council [2008] TASSC 62
PARTIES: BUDD, Malcolm Francis
v
NORTHERN MIDLANDS COUNCIL
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 894/2007
DELIVERED ON: 24 October 2008
DELIVERED AT: Launceston
HEARING DATE: 17 June 2008
JUDGMENT OF: Tennent J
CATCHWORDS:
Environment and Planning – Pollution – Waste disposal – Offences – Defences – Tasmania - Environmental Management and Pollution Control Act 1994, s55(1)(c) – Nature and extent of obligation.
Environmental Management and Pollution Control Act1994 (Tas), s51A(2), 53(2), 55(1)(c) and 55(3).
Environmental Management and Pollution Control (Waste Management) Regulations2000 (Tas), r8(1).
State Rail Authority of NSW v Hunter Water Board (1992) 28 NSWLR 721; in R v Tolson (1989) 23 QBD 168; Dinko Tuna Farmers Pty Ltd v Markos [2007] SASC 166; referred to.
Aust Dig Environment and Planning [423]
REPRESENTATION:
Counsel:
Appellant: S J Bender
Respondent: S B McElwaine
Solicitors:
Appellant: Director of Public Prosecutions
Respondent: Shaun McElwaine
Judgment Number: [2008] TASSC
Number of paragraphs: 15
Serial No 62/2008
File No LCA 894/2007
MALCOLM FRANCIS BUDD v NORTHERN MIDLANDS COUNCIL
REASONS FOR JUDGMENT TENNENT J
24 October 2008
The Council was prosecuted on complaint number 70744/2007 for breaches of the Environmental Management and Pollution Control Act 1994 ("the Act"), ss51A(2) and 53(2), and the Environmental Management and Pollution Control (Waste Management) Regulations 2000 ("the Regulations"), reg8(1). The particulars of the charges on the complaint against the Council were in the following terms:
"1That the Northern Midlands Council between on or about the 22nd August, 2006 and on or about the 23rd August, 2006 caused a pollutant, ie; approximate coverage of 7,800 square metres at varying depths of untreated sewage, to be deposited at a place where it could reasonably be expected to cause material environmental harm, ie; the 'Belmont' property near Longford in Tasmania CONTRARY TO Section 51(A)(2) of the Environmental Management and Pollution Control Act 1994.
2That the Northern Midlands Council between on or about the 22nd August, 2006 and on or about the 23rd August, 2006 caused a pollutant, ie; approximate coverage of 7,800 square metres at varying depths of untreated sewage, to be deposited at a place where it unlawfully caused an environmental nuisance, ie; the 'Belmont' property near Longford in Tasmania CONTRARY TO Section 53(2) of the Environmental Management and Pollution Control Act 1994.
3That the Northern Midlands Council between on or about the 22nd August, 2006 and on or about the 23rd August, 2006 did deposit at a place, ie; the 'Belmont' property near Longford in Tasmania, a controlled waste, ie; approximate coverage of 7,800 square metres at varying depths of untreated sewage, in a manner that was likely to cause environmental harm CONTRARY TO Regulation 8(1) of the Environmental Management and Pollution Control (Waste Management) Regulations 2000."
Although it did not appear on the complaint, the second count was an alternative to the first and the third was in the alternative to the first and second.
After a hearing before a magistrate, the complaint was dismissed. The learned magistrate expressed himself satisfied that the deposit of pollutant on "Belmont" could reasonably have been expected to cause material environmental harm. He then considered the nature of any defence available to the Council. He concluded that a defence pursuant to the Act, s55(1)(c), had been made out by the Council. The complainant, an officer on behalf of the government body having responsibility for the particular legislation, has sought a review of the learned magistrate's decision. The sole ground of review is that the learned magistrate erred in fact and/or in law in holding that a defence pursuant to the Act, s55(1)(c), had been made out.
The Act, s55(1)(c), provides that it is a defence to certain offences if it is proved that an alleged offence did not result from any failure on a defendant's part to take all reasonable and practicable measures to prevent the commission of the particular offence. That defence is qualified in the case of the body corporate by s55(3). If a body corporate seeks to rely on a defence under s55(1)(c), by proving the establishment of proper workplace systems and procedures designed to prevent a contravention of the Act, proof of that must be accompanied by proof that proper systems and procedures were also in place whereby any such contravention or risk of it, that came to the knowledge of a person at any level in the workplace, was required to be reported promptly to the governing body of the body corporate, or to a person or group with the right to report to the governing body. It must also be accompanied by proof that the governing body of the body corporate actively and effectively promoted and enforced compliance with the Act and with all such systems and procedures within all relevant areas of the workforce.
When considering the nature of any defence available to the Council, the learned magistrate, as I understand his decision, determined that the common law "defence" of honest and reasonable mistake was not available in this matter because of the specific defences provided for in the Act. That approach was not the subject of any ground in the notice to review, nor was it argued at the hearing of the review that his Honour's approach was incorrect and that he should have considered both honest and reasonable mistake and the defence available under s55.
All the charges against the Council arose out of the same facts. The Council maintained a sewage pump house at Paton Street in Longford. A pipeline ran from the pump house across a property known as "Belmont". A failure occurred in the system which resulted in untreated sewage being deposited over an area of approximately 7,800 square metres on that property. The learned magistrate, in considering whether the defence pursuant to s55 was available to the Council, made the following findings:
"I am satisfied that the alleged offence did not result from any failure on the defendant's part to take all reasonable and practicable measures to prevent the commission of the offence of the same or similar nature. It has not been shown that any standard or scheme applied to the operation of the mains system, which the defendant has not complied with. I'm satisfied that the defendant had a scheme in place that caused reports of any failure with environmental consequences to be reported promptly up the line to him and through him to the Engineering division and onwards to the Environmental Department. The Works division shared responsibility for the environmental matters as it related to the sewage system with the Engineering division of the defendant, that is there was systems overlap. There was a mechanism of reports of incidents to the notice of Council that had environmental consequences; for them to be placed on the next monthly agenda, with recommendation for the remedy of the causes; the Council ensured compliance with the Act, that the Council expected to be fully informed of any failures, and the Council would want to know what was done about it and expect you to fix it. In respect to these kind of matters, there were rostered officers on duty 24/7 to deal with environmental issues should they arise. There was in place a programme of capital works to prevent problems arising, having prior to this failure built new pumping stations, and completing the upgrading of the Paton street Pumping station; capital works included the telemetering system, new rising mains, with an ongoing programme of renewal of mains.
On all the evidence I am satisfied on the balance of probabilities, of the matters of defence set out in S55 were relevant."
At the hearing before the learned magistrate, counsel for the complainant relied on State Rail Authority of NSW v Hunter Water Board (1992) 28 NSWLR 721. Indeed, in his opening address to the learned magistrate, he indicated without objection that the principal offence being dealt with was one of strict liability and that therefore an honest and reasonable mistake-type defence was available to the Council. At that stage in the proceedings, he made no mention at all of the Act, s55. In his closing submissions, by reference to State Rail, he discussed whether the Council could avail itself of the "defence" of honest and reasonable mistake but, again, made no reference at all to s55. On the other hand, counsel for the Council said at the conclusion of his submissions that in fact his client had two escape routes, that of the honest and reasonable mistake defence, and the specific defence under s55.
On the hearing of this review, counsel for the complainant submitted that from the evidence before the learned magistrate it could reasonably be inferred that the Council had formed the view that everything was in order with its pumping station and pipes to the extent that it was only necessary to walk along the pipeline once every three months to maintain the necessary supervision of the system. He submitted further that this was, in fact, a mistaken belief in that the proper application of the reasoning in State Rail would lead to the conclusion that the Act, s55(1)(c), did not provide a defence in the circumstances of this case. Counsel then quoted in his submissions extensively from the judgment of Gleeson CJ.
In State Rail, the relevant authority was charged with a breach of the Clean WatersAct 1970 (NSW), s16(1). There was no dispute that the offence was one of strict liability. The authority argued that, if the facts of the case were sufficient to raise the issue of honest and reasonable mistake, then it was for the prosecution to show that the authority was not acting under an honest and reasonable mistake. Gleeson CJ outlined the nature of the "defence" and referred to its genesis in a statement of Cave J in R v Tolson (1989) 23 QBD 168. His Honour then acknowledged that in a number of different contexts, courts have stressed the need to show an affirmative belief in a certain fact or state of affairs as distinct from a mere absence of knowledge. No issue arose in this case about a statutory defence. The court held that assuming the "defence" of honest and reasonable mistaken belief could be raised to the particular charge there being dealt with, such belief, to be a defence, would need to be sufficiently specific to relate to the elements of that particular offence so that the mere lack of knowledge that pollution was occurring, or was likely to occur, based on a general understanding or assumption that everything was in order would not be sufficient to amount to a mistaken belief. The court went on to say that accordingly, a defendant to such a charge, would not be excused simply on the basis that he or she had no particular reason to apprehend that the operation of the plant and equipment in question would, or might, result in pollution. In effect, the court found that the defence might be available, but was not for the reasons outlined above.
With respect, it would appear to me that counsel for the complainant has confused the concepts discussed in State Rail with the statutory requirements in the Act, s55(1)(c). The Council did not have to satisfy the Court about any belief that it might have held, mistaken or otherwise, and that that belief was an honest and reasonable one. What it had to prove were the following:
(i)that the offence did not result from any failure on its part to take all reasonable and practicable measures to prevent the commission of the offence, and
(ii)if it relied on there having been established proper workplace systems and procedures designed to prevent the contravention,
(a)that proper systems and procedures were in place whereby if the contravention or risk of contravention came to the knowledge of any worker, that worker was required to promptly report the contravention or risk, and
(b)that it actively and effectively promoted and enforced compliance with the Act and with any systems and procedures in force within all relevant areas of its workforce.
However, notwithstanding that apparent confusion, counsel for the complainant submitted that on the facts of this case, the Council had not taken all reasonable steps. He submitted that the Council had clearly identified already a need to replace the rising main from the pump station and that since it had not undertaken that work, more frequent inspections should have been undertaken to ensure there were no leaks from that pipeline. Since those further steps could have been taken by the Council and it was reasonable for them to do so and they had not, the Council had not established that the contravention did not arise from its failure to take all reasonable and practicable steps.
Counsel for the Council, in his submissions, addressed the issue of what the obligation imposed by the Act, s55(1)(c), actually entailed. Counsel took the Court through the judgment of Gray J in Dinko Tuna Farmers Pty Ltd v Markos [2007] SASC 166. That case dealt with a prosecution for a breach of the South Australian Occupational Health Safety and Welfare Act 1986, s19(1). An employer was required by that section to ensure, so far as was reasonably practicable, that an employee was safe at work. The court considered the extent of the obligation placed upon an employer by that section. His Honour determined that what was "reasonably practicable" in any given case may be expected to involve considerations such as the magnitude of the potential harm, the likelihood that harm will arise, the availability of any measures that could be taken to eliminate or minimise the risk, the cost and time involved in those measures being taken, and their effectiveness in addressing the risk. His Honour also noted in the context of s19(1) that the words "so far as is reasonably practicable" modified verbs "provide and maintain" and it was those verbs that provided and created the obligation. He said that the words of qualification prescribe the measure of the precautions to be taken to ensure the safety of an employee. He also commented that the word "ensure" carried with it a heightened obligation.
While the Act, s55(1)(c), does not use the term "reasonably practicable", by analogy, the reasoning of Gray J can be of assistance in interpreting the section because it is a failure to take "all reasonable and practicable" measures which needs to be considered.
In the present case, the leaking of sewage resulted from the breakdown of effectiveness of what were described as O rings in joins of pipes in the pipeline. The issue for the learned magistrate was whether the Council, on the balance of probabilities, had satisfied him that the breakdown of those rings and the resulting leak did not result from any failure on the Council's part to take all reasonable and practicable measures to prevent the leak. Counsel for the complainant emphasised in his submissions the need for the Council to have taken all measures. With respect, the duty which he seeks to impose is, in my view, too high. The word "all" is qualified by the words "reasonable and practicable" and is not used absolutely. Therefore, the question which needs to be asked is, firstly, what steps could the Council reasonably and practicably have taken to prevent the risk in the circumstances of the matter as it stood at the time of the leak, and secondly, did it take all of those steps?
If, as a matter of fact, the Council took all steps reasonably and practicably available to it at the time to prevent the particular risk, then it would have been open to the learned magistrate to conclude that the offence charged did not arise from any failure to take those steps. On the facts in this case, there was no expectation that the particular rings would fail. There was no step, short of digging up the pipes at the points where the rings were installed, by which the Council could have ascertained whether any particular ring might be about to break down. As the learned magistrate found, the Council had in place a capital works program and was aware of the need to replace the rising main which was part of that program. Counsel for the complainant appeared to suggest that, given the Council's knowledge of the need to replace the main, inspections of the pipeline should have been done far more often than they were. Those inspections, however, would still have only involved a person physically walking along the line, which would not have prevented the risk.
In my view, the finding made by the learned magistrate was open to him on the facts as presented to him. With respect, I am unable to be satisfied that the learned magistrate made any error either of fact or law when he determined that a defence pursuant to the Act, s55(1)(c), had been made out. In the circumstances, the notice to review is dismissed.
0
2
2