Clarence Valley Council v Lanai Pty Ltd

[2006] NSWLC 40

Local Court of New South Wales

CITATION:	Clarence Valley Council v Lanai Pty Ltd [2006] NSWLC 40
JURISDICTION:	Criminal
PARTIES:	Clarence Valley Council Mr R Wright (Prosecutor) Lanai Pty Ltd
FILE NUMBER:
PLACE OF HEARING:	Maclean Local Court
DATE OF DECISION:	01/23/2006
MAGISTRATE:	Magistrate C Bone
CATCHWORDS:	Polluted waters - Envionment - Soil sediment
LEGISLATION CITED:	Protection of the Environment Operations Act 1997
CASES CITED:	Environment Protection Authority v Brazel (2002) NSWLEC 7 Environment Protection Authority v Cianfrano (unreported McLellan CJ, NSW Land & Environment Court, 26/11/2006 Environment Protection Authority v Metziyal Pty Ltd (2003) NSWLEC 196 Majury v Sunbeam Corporation Ltd (1974) NSWLR 659
REPRESENTATION:	Mr S Priestley - Solicitor Mr A Gallagher - Solicitor
ORDERS:	The offence is proved.

Reasons for Decision

1 It is alleged by Rodney Wright, an officer of Clarence Valley Council, that Lanai Pty. Ltd. committed an offence against s.120(1) of the Protection of the Environment Operations Act, 1997, in that it polluted waters at Gulmarrad on 24th January, 2005. The accused company pleaded not guilty and all of the evidence has been taken

Background

2    Lanai Pty. Ltd. was, at 24th January, 2005, the owner of land at Gulmarrad, which is near Maclean. The company had purchased the land in 2004 with a view to development. At the time of purchase the land had a deal of timber on it. In the latter part of 2004 the company commenced a clearing operation. About thirty hectares, representing approximately 85% of the land, was cleared of vegetation and the soil was then prepared for the development programme. The process by which the soil was prepared involved dragging across the land a bar with ripping devices attached to it. The ripping devices, set at a depth of 600mm., break up the subsoil and increase infiltration, thus preparing the soil for the next stage of the process which involves light cultivation to form a seed bed followed by light rolling. A laser grader was used to ensure an even run-off rate in the event of rain.

3    The western and northern boundaries of the land were bordered by Sheehan’s Lane. This rural thoroughfare had a ninety degree turn at the north-west boundary of the property. Apart from a small length of sealed surface adjacent to the ninety degree turn, Sheehan’s Lane is a gravel road. A gutter runs along the side of Sheehan’s Lane and there is a drain or culvert which goes under the road - that drain or culvert is near to the ninety degree turn.

4    The land which had been cleared sloped down towards the north-west boundary. In order to minimise the amount of water which ran from the land (and then into the gutter and drain/culvert) the company built a bund wall. A bund wall is a type of earthen mound or wall. The bund wall built by the company was roughly semi-circular and was in the area of the north-west boundary. Running away from each end of the bund wall was a silt fence. A silt fence is constructed of fine mesh. The bund wall and the silt fence were on the company’s property and were generally about fifty to sixty metres from the boundary. The area between the constructions and the boundary was undisturbed, with a coverage of native grasses. The idea was that, in the event of heavy rain, most of the water which ran off from the cleared ground would be caught by the bund wall and any sediment would fall to the bottom. The fine mesh of the silt fencing would allow water to pass through but would catch any sediment. The constructions were set well back from the boundary so that any water which did get through the barriers would be likely to be trapped or, at the least, slowed, by the flat area of undisturbed grass between the constructions and Sheehan’s Lane.

5    On 24th January, 2005, heavy rain fell in the Gulmarrad area.

6    It is the prosecution’s contention that a significant amount of water ran from the company’s land and that the water contained an unacceptable amount of sediment.

Prosecution evidence

7    Rodney Wright is the co-ordinator of environmental services with Clarence Valley Council. He has the degree of Bachelor of Science in Environmental Health and has been an Environmental Officer in Local Government for nineteen years; he has investigated more than one hundred cases of pollution. He had visited the site on a number of occasions in the months leading up to 24th January, 2005, and was familiar with the land and the work which was being undertaken there. He visited the site on the afternoon of 24th January. He took a number of photographs and made a number of observations. He saw water coming from the land into the gutter which led to the drain/culvert. That water contained much more than the usual amount of sediment. He had seen water coming off the land prior to the clearing and on those occasions it was relatively clear. On this occasion it was discoloured and contained solids. Mr. Wright described one of the photographs as depicting “a river of sediment”. He indicated that the culvert led to an open drain on the other side of Sheehan’s Lane and that that drain led in turn to a number of other drains which emptied into a dam, water from which went into the Clarence River.

Defence evidence

8    Andrew Baker, a cane farmer and a director of Lanai Pty. Ltd., gave evidence in the defence case. He described the way in which the work outlined in earlier paragraphs was undertaken. He indicated that the work was about 90% completed at the time of the downpour and that, had it not been for the clearing and subsequent procedures, there would have been a great deal more water and sediment come from the land.

9    On the afternoon of 24th January, Mr. Baker was contacted by one of the company’s employees to say that water was over Sheehan’s Lane. He went to the site and took about seventy photographs. He indicated that a lot of the water which had gone through the silt fence had been slowed by the grass between the fence and the boundary and that any sediment which had passed the fence had settled onto the grass. Mr. Baker said that, under normal circumstances, any water which is unable to be retained by a bund wall is released along spillways which are at the end of the wall and which direct overflow onto a grassed area. The problem in this case, he indicated, was that “the volume was enough to exceed the capacity of the spillway and once that happened, the water made its own spillway by breaching the bund wall in the middle”.

10    Mr. Baker said that the open drain which was on the other side of Sheehan’s Lane fed into two pipes which were smaller than the pipe which was in the drain/culvert under the road. This caused the water to bank up. Any water which went down those pipes would eventually end up in Lloyd Skinner’s drain and then fizzle out.

11    The prosecution submission, in essence, is that each of the elements of the offence has been made out - the accused company was in control of the land, matter in the form of soil sediment washed from the land into a drain which led to a watercourse which led to a river and that constitutes the offence of polluting waters. The accused company’s solicitor submitted that (a) the company had not placed anything on the land, it had merely re-arranged what had always been there, (b) in the absence of the analysis of a sample of the water flowing from the land, it cannot be proved that the water was polluted and (c) the water flowing from the land did not and could not have ended up in a river and could have gone no further than Lloyd Skinner’s drain.

Statutory provisions

12 Section 120 of the Protection of the Environment Operations Act, 1997, states:

120 Prohibition of pollution of waters

(1) A person who pollutes any waters is guilty of an offence.

(2) In this section:

“pollute” waters includes cause or permit any waters to be polluted.

13    Relevant excerpts from the Act’s dictionary state:

“water pollution” or “pollution of waters” means:

(a)

placing in or on, or otherwise introducing into or onto, waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, so that the physical, chemical or biological condition of the waters is changed, or

(b)

placing in or on, or otherwise introducing into or onto, the waters (whether through an act or omission) any refuse, litter, debris or other matter, whether solid or liquid or gaseous, so that the change in the condition of the waters or the refuse, litter, debris or other matter, either alone or together with any other refuse, litter, debris or matter present in the waters makes, or is likely to make, the waters unclean, noxious, poisonous or impure, detrimental to the health, safety, welfare or property of persons, undrinkable for farm animals, poisonous or harmful to aquatic life, animals, birds or fish in or around the waters or unsuitable for use in irrigation, or obstructs or interferes with, or is likely to obstruct or interfere with persons in the exercise or enjoyment of any right in relation to the waters, or

(c)

placing in or on, or otherwise introducing into or onto, the waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, that is of a prescribed nature, description or class or that does not comply with any standard prescribed in respect of that matter,

and, without affecting the generality of the foregoing, includes:

(d)

placing any matter (whether solid, liquid or gaseous) in a position where:
(i)
it falls, descends, is washed, is blown or percolates, or
(ii)
it is likely to fall, descend, be washed, be blown or percolate,
into any waters, onto the dry bed of any waters, or into any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted, or

(e)

placing any such matter on the dry bed of any waters, or in any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted,

if the matter would, had it been placed in any waters, have polluted or have been likely to pollute those waters.

“waters” means the whole or any part of:

(a)

any river, stream, lake, lagoon, swamp, wetlands, unconfined surface water, natural or artificial watercourse, dam or tidal waters (including the sea), or

(b)

any water stored in artificial works, any water in water mains, water pipes or water channels, or any underground or artesian water.

Legal principles

14    The accused company is alleged to have committed a criminal offence. In order to secure a conviction, the prosecution must establish beyond reasonable doubt that the offence has been committed.

15 An offence under s.120 of the Act is an offence of strict liability, although a defence of honest and reasonable mistake is open to an accused (see, e.g., Environment Protection Authority v. Brazel (2002 NSWLEC 7).

16    The offence of pollution of waters can occur in circumstances in which soil is washed from land following the clearing of that land. In Environment Protection Authority v. Cianfrano (unreported McLellan, C.J., NSW Land & Environment Court, 26th November, 2003 ) and Environment Protection Authority v. Metziyal Pty. Ltd. (2003 NSWLEC 196), the court considered cases in which soil had washed from land which had been the subject of land clearing and/or earth moving works. In each case the accused was convicted. The factual circumstances regarding the use of the land in those cases is, for all intents and purposes, identical to the factual circumstances in the present case. In Majury v. Sunbeam Corporation Ltd. (1974 1 NSWLR 659) McClemens, J., held that in order for there to be a “placing” of material in or on waters for the purposes of pollution, it is not necessary that there be an overt act of placing the matter in or on the waters. Matter is placed in or on waters if the material is in the possession of the accused and on his land and gets into the water as a direct result of it being where it is.

17    In the case of Metziyal Pty. Ltd. the waters into which pollutant had flowed was a table drain. The waters adjacent to the accused company’s land in the present case consisted at the very least of a gutter, a drain/culvert and an open drain.

Conclusion

18    The eye-witness evidence and the photographic evidence establish conclusively that a considerable amount of water came from the accused company’s land into the gutter which led to the drain/culvert which was under Sheehan’s Lane and which in turn led to the open drain on the other side of Sheehan’s Lane. Whether that water eventually entered the Clarence River or fizzled out in Lloyd Skinner’s drain I am unable to say but this is irrelevant to the issue of guilt. “Waters” are defined in the Act as including any “natural or artificial watercourse” and the drains into which the water from the accused company’s land flowed come within that definition. The cases mentioned in paragraph 16 establish that waters can be polluted in circumstances in which rainwater containing earth from cleared lands flows into a drain.

19    The remaining issue relates to the content of the water which came from the accused company’s land. For the offence to have been committed, I must be satisfied that it contained “matter, whether solid, liquid or gaseous, so that the physical, chemical or biological condition of the waters is changed” or “matter, whether solid or liquid or gaseous, so that the change in the condition of the waters or the refuse, litter, debris or other matter, either alone or together with any other refuse, litter, debris or matter present in the waters makes, or is likely to make, the waters unclean, noxious, poisonous or impure, detrimental to the health, safety, welfare or property of persons, undrinkable for farm animals, poisonous or harmful to aquatic life, animals, birds or fish in or around the waters or unsuitable for use in irrigation, or obstructs or interferes with, or is likely to obstruct or interfere with persons in the exercise or enjoyment of any right in relation to the waters”.

20    Rain which comes from uncleared land will invariably contain soil. Mr. Wright indicated that research suggested that an average of one tonne per hectare is washed from an uncleared site in the course of a year. Most of the cases which I have considered have involved the taking of samples of the water which are then available for analysis to determine the concentration of earth and other material which was in the water flowing from the land (e.g. Cianfrano and Metziyal Pty. Ltd.). The taking of samples is no doubt the best way to assess pollution. In the present case, however, despite the fact that samples were not taken, the eye-witness evidence of Mr. Wright who was familiar with the land before and after it was cleared together with the graphic nature of his photographs satisfies me that the water which flowed from the land into the gutter and thence into the drain contained so much earth that it made the water unclean and impure.

I find that the offence is proved.