Cabonne Shire Council v Environment Protection Authority

Cabonne Shire Council was prosecuted by the Environment Protection Authority for a breach of a direction given under the Protection of the Environment Operations Act 1997 (NSW). The Council had discharged liquid waste into a creek, resulting in a significant fish kill. The Local Court found the Council guilty and imposed a penalty of $200,000, which was 30% of the maximum penalty before any discount for an early plea. The Council appealed the penalty as manifestly excessive.

The legal issue was whether the penalty imposed was manifestly excessive and, if so, whether the penalty should be reduced. The Council argued that the penalty was manifestly excessive because it was disproportionate to the offence, which was described as having a low degree of gravity. The Authority argued that the penalty was appropriate and that the legislature had recently increased the maximum penalty, which warranted a higher fine.

The Court found that the penalty was indeed manifestly excessive. It observed that the offence, while serious, did not warrant a penalty at the top end of the scale, particularly given the low degree of gravity. The Court substituted a penalty of $30,000, which was more commensurate with the seriousness of the offence. The Court also noted the legislature's recent increase in the maximum penalty but found that it did not warrant an increase in this case.