Byron Shire Council v Wain - [1999] NSWLEC 13

Land and Environment Court

of New South Wales

CITATION:

Byron Shire Council -V- Wain & Anor. [1999] NSWLEC 13

This judgment revised on:

09/03/99

PARTIES

PROSECUTOR:
Byron S.C.

DEFENDANTS:
Wain, B.
Wengarin Pty Ltd

NUMBER:

50116 and 50119 of 1998

CORAM:

Bignold J

KEY ISSUES:

:- Pollution of waters by unauthorised deposition of fill reclaiming land - environmental consequences of reclamation - whether appropriate to make order under s.14 to restore land or to ameliorate reclamation

LEGISLATION CITED:

Pollution of waters by unauthorised deposition of fill reclaiming land - environmental consequences of reclamation - whether appropriate to make order under s.14 to restore land or to ameliorate reclamation

DATES OF HEARING:

02/04/1999; 02/05/1999

EX TEMPORE JUDGMENT DATE:

02/05/1999

LEGAL REPRESENTATIVES:

PROSECUTOR:
Mr J. Maston, Barrister
Solicitors:
Wilshire Webb
DEFENDANTS:
Mr M. Tobias QC with Mr G. Newport, Barrister
Solicitors:
Abbott Tout

JUDGMENT:

1. These are two charges of an offence against s 16 of the Clean Waters Act 1970, which in turn becomes an offence against s.8B of the Environmental Offences and Penalties Act 1989, brought against the Defendant Barry Wain and the Defendant Wengarin Pty Limited, said to be committed between 31 July 1997 and 5 August 1997, whereby the Defendant Wain did pollute waters of Belongil Creek by placing in the waters material consisting of soil, gravel and rocks contrary to s.16 of the Clean Waters Act.

2. The offence against the Company, of which Mr Wain is a director and principal shareholder, is a similar offence, namely the offence of “did cause the waters of Belongil Creek to be polluted”.

3. Each Defendant has pleaded guilty to the charge and by consent, the charges have been heard together.

4. The circumstances of the commission of the offence are set forth in the evidence that has been given. Briefly stated, it can be summarised as follows. The Defendant Mr Wain, on or about 31 July 1997, directed some contractors to deliver to the site at which the offences were committed clean fill material of some 105 cubic metres, together with a large quantity of gabion rocks. Those materials were delivered to the foreshores of Belongil Creek in the vicinity of Manfred Street and Charles Street in Byron Bay, when Mr Wain arranged for the delivered materials to be deposited on the foreshores and banks of the Belongil Creek. Although the evidence is not entirely clear I infer the majority of the clean fill material was deposited in the waters of the creek in the form of a reclamation.

5. The dimensions of the fill material are set forth in a survey of Mr Canty, (Exhibit D), and generally speaking involve a linear dimension along the creek bank of some 35 metres and a maximum width of 2.5 metres. In all, some 70 m2of surface area of the creek bed for a depth of one metre was occupied by the fill material. That dimension excludes the further intrusion into the waters of Belongil Creek created by…

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: [1999] NSWLEC 13
Decision Date: 09/03/99

CaseChat Overview and Summary

Byron Shire Council brought charges against Barry Wain and Wengarin Pty Ltd under the Clean Waters Act 1970, alleging that they had polluted Belongil Creek by depositing fill material into the waterway. The court heard two charges, one against Wain personally and another against Wengarin Pty Ltd, of which Wain is a director and principal shareholder. Both defendants pleaded guilty. The court found that Wain had directed the deposition of clean fill material and gabion rocks into Belongil Creek, leading to the charges. The court considered the environmental consequences of the defendants' actions and whether an order under section 14 of the Environmental Offences and Penalties Act 1989 should be made to restore the land or mitigate the harm caused. The Council sought an order to remove the fill and rehabilitate the bank, while the defendants sought an order to retain the fill and undertake additional works to make the reclamation more environmentally acceptable. The court concluded that the evidence did not support the making of an order under section 14 as sought by the Council. However, the court found that the power to make an order to mitigate harm to the environment was available to sanction the type of order sought by the defendants. The court deferred making a final order along the lines outlined in the defendants' proposal to allow the parties to confer and provide an agreed form and content of the order. In terms of penalty, the court imposed a fine of $15,000 on Wain and a fine of $5,000 on Wengarin Pty Ltd, recognising the objective gravity of the offence and the respective personal culpability of the offenders.

Orders