Environment Protection Authority v Aaron Plant Hire and Earthmoving Pty Ltd

[2000] NSWLEC 122

Land and Environment Court

of New South Wales

CITATION:

Environment Protection Authority v Aaron Plant Hire & Earthmoving Pty Ltd [2000] NSWLEC 122

PARTIES:

PROSECUTOR:
Environment Protection Authority

DEFENDANT:
Aaron Plant Hire & Earthmoving Pty Limited
ACN 060 834 193

FILE NUMBER(S):

50129 of 1998

CORAM:

Lloyd J

KEY ISSUES:

Environmental Offences :- water pollution - guilty plea - costs of remediation paid by defendant - need for general deterrence and even-handedness in sentencing

LEGISLATION CITED:

Clean Waters Act 1970 s16(1)
Crimes (Sentencing Procedure) Act 1999 s 22
Environmental Offences and Penalties Act 1989 s 14
Interpretation Act 1987 s 30(1)

CASES CITED:

Axer Pty Limited v Environment Protection Authority, Court of Criminal Appeal, 22 November 1993, unreported;
Environment Protection Authority v Taylor Woodrow Australia Pty Limited [No. 2] (1997) 97 LGERA 368;
Environment Protection Authority v Timber Industries [2000] Lloyd J, NSWLEC 39, 23 February 2000, unreported

DATES OF HEARING:

10/05/2000

DATE OF JUDGMENT:

05/10/2000

LEGAL REPRESENTATIVES:

PROSECUTOR:
M Kelly (solicitor)

SOLICITORS:
Environment Protection Authority

DEFENDANT:
K Stapley (solicitor)

SOLICITORS:
Kevin Stapley & Assoc.

JUDGMENT:

IN THE LAND AND Matters No: 50129 of 1998

ENVIRONMENT COURT Coram: Lloyd J

OF NEW SOUTH WALES Decision date: 10 May 2000

Environment Protection Authority

Prosecutor

v

Aaron Plant Hire & Earthmoving Pty Limited

ACN 060 834 193

Defendant

EXTEMPORE JUDGMENT

HIS HONOUR:

1. The defendant has pleaded guilty to an offence that between 14 and 23 August 1997 inclusive at Belrose in the state of New South Wales it committed an offence against the Environmental Offences and Penalties Act 1989 in that it did pollute waters contrary to s 16(1) of the Clean Waters Act 1970 . The waters which were polluted comprise an unnamed tributary of Deep Creek which flows into Narrabeen Lagoon.

2. The Clean Waters Act has since been repealed and its provisions are now generally repeated in the Protection of the Environment Operations Act 1997. Liability for offences committed under legislation which is subsequently repealed, however, continues: see section 31 of the Interpretation Act 1987.

3. Section 16(1) of the Clean Waters Act provides that a person shall not pollute any waters. Sub-section (2)(a) of section 16 provides that a person shall be deemed to pollute waters if the person places any matter whether solid, liquid or gaseous in a position where it falls, descends, is washed, is blown or percolates; or 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 rain water, flood water or any other water that is not polluted; or causes or permits any such matter to be placed in such a position.

4. The relevant facts which I now briefly describe are derived from a statement of agreed facts tendered by consent and supplemented by a number of affidavits and other material. The Warringah Radio Control Society was at all material times the holder of a permissive occupancy over a portion of Crown land at Madang Road, Belrose. On that site there was a silt dam which had the purpose of preventing the runoff of silt from the site of a former quarry, to Narrabeen Lagoon. By the middle of 1997 the dam was nearly full of silt and the Warringah Radio Control Society resolved to desilt the dam.

5. The defendant is an earthmoving contractor and has been in business for about five years. It was contracted to provide earthmoving equipment and operators for the purpose of desilting the dam. Between 14 and 23 August 1997 the defendant provided one and later a second excavator and operators who removed silt from the dam and placed it outside the dam perimeter. The defendant was paid a gross amount of $6,870 for the work. There is no evidence as to what the net return was to the defendant.

6. The defendant placed approximately 1600 cubic metres of the material it removed from the dam around the dam perimeter including the downstream side of the dam wall. The material was in a position where it was likely to migrate or wash into the unnamed tributary of Deep Creek, which as I have noted flows into Narrabeen Lagoon.

7. No controls were put in place to prevent this from occurring and the material itself was said to be “runny”. Whilst this work was continuing on 23 August 1997 the wall of the dam leaked and the dam wall was repaired by the defendant. After this breach of the dam wall the material downstream of it became very fluid and was seen to be visibly running downhill.

8. According to the affidavit of Mr K J Shugg, a member of Manly-Warringah Cycling Club, Mountain Bike Division, he was on a weekend during the latter half of 1997 at the Belrose site for a mountain bike ride. He saw two back hoes clearing out the dam located on the land occupied by Warringah Radio Control Society. One back hoe was actually in the dam, the other back hoe was on the dam wall and it was transferring a slurry of water and mud from the dam and moving it over the dam wall. The machines were placing material on the downward side of the dam wall. According to Mr Shugg the material was too muddy to stay where it was placed and it was running downhill towards the creek. There was nothing in place to stop the material from running downhill towards the creek.

9. On the day Mr Shugg was there, the material was seen to be visibly wet and was visibly moving downhill. According to Mr Shugg it looked like a big avalanche had just gone down the creek. The material was visible for as far as he could see which was approximately 100 metres. Subsequently, rainfall continued to wash the material downstream and into the watercourse.

10. I have referred to the fact that the defendant's contract was limited to providing only earthmoving equipment and the operators thereof. There is no agreement as to who directed the material to be placed on the downstream side of the dam. According to Mr J Simmons, managing director of the defendant, when there is a hiring of a machine and an operator it is up to the hirer to direct the operator. In the present case, however, no specific instructions were apparently given by the hirer other than to place the excavated material to the side of the watercourse and keep the watercourse free and, according to Mr Simmons, that was done. The hirer in this case claims that reliance was placed upon the expertise of the defendant in relation to protecting the watercourse from sediment.

11. As I have said, the material removed from the dam and placed below the dam wall totalled approximately 1600 cubic metres. The movement of the sediment was exacerbated by the breaching of the dam wall and rainfall on subsequent days. Most significantly there was heavy rainfall on 7 and 8 October 1997.

12. At the time of the first inspection by officers of the prosecutor on 31 October 1997 the sediment plume was approximately forty metres wide at the base of the dam wall and it tapered down to a width of about five metres at the head of the plume. The plume extended over the riparian vegetation along the watercourse smothering shrubs and herbs in its path. The sediment was about four metres deep near the dam wall and about one metre deep for most of the plume. The plume was in an unstable condition and very fluid and has continued to wash into and migrate down the watercourse after storm events.

13. At a meeting on the site on 21 October 1997 the defendant was represented by Mr Simmons. He expressed a willingness to assist in the cleanup if someone paid for it. The course that was followed was that the Warringah Radio Control Society voluntarily paid for the development of a remediation plan prepared by the Department of Land and Water Conservation and for remediation work by another earthmoving contractor. That contractor lowered the height of the dam spillway and removed some sediment to a suitable place for revegetation. The total cost to the Warringah Radio Control Society of remediation works, carried out during November 1997, was $30,080.

14. During November 1997 there had also been assistance by volunteers from the Australian Trust for Conservation Volunteers. It provided from six to ten volunteers for about ten days. They assisted to build temporary check dam structures from sandbags, black plastic and geotextiles. The purpose of these measures was to collect water flow and direct it over drainage channels lined with black builders’ plastic. These temporary structures were washed away by heavy rainfall in April 1998 and about one-third of the remaining sediment was also washed away.

15. On 14 May 1998 the prosecutor served a notice under section 27A(1) of the Clean Waters Act upon the defendant requiring it to reinstate, repair or replace the temporary sediment control structures and to prepare a remediation plan of management. This notice was not complied with.

16. These proceedings were commenced on 25 September 1998. On 8 July 1999 a plea of guilty was entered by the defendant and an undertaking was given by the defendant to perform remediation works in lieu of the prosecutor seeking any orders under section 14 of the Environmental Offences and Penalties Act. This work has now been completed to the satisfaction of the prosecutor and no order under that section is now sought. This work encompassed all that could reasonably be done by way of remediation. Further environmental damage could be caused by any further attempt to remediate. The defendant has submitted a schedule of costings which discloses that the cost to it of carrying out the remediation works was $32,965.

17. I turn now to the question of environmental harm. Dr A C Roach is an environmental scientist employed by the prosecutor. He holds a degree of Bachelor of Applied Science majoring in environmental biology, and a doctorate of philosophy in science. He inspected the site on 14 November 1997 and was asked to assess the impact of the incident on the water quality of the creek. According to Dr Roach some of the sediment had been transported downstream past the dumped material and there had been significant erosion of the material in the first thirty six (36) days after the incident was first reported.

18. Dr Roach took samples of water in order to check its turbidity and the concentration of suspended solids. He took a number of samples not only from the unnamed tributary that was affected but from another tributary which was unaffected and from an area upstream of the particular dam in this case. It was Dr Roach's opinion that the level of suspended solids in the creek below the dumped material appeared to be higher than that which may be normally expected for this creek and the action of dumping the material appears to have polluted the water below the dam wall by increasing the suspended solid load in the water.

19. The principal effect on the environment caused by the incident according to Dr Roach is that where there is a discharge of water with a high concentration of suspended solids there is a reduction in the degree of light penetration into the water column, possible mortality of aquatic organisms, siltation and a decrease in aesthetic value.

20. As to turbidity, Dr Roach concluded that the effect appears to be mostly sublethal and therefore not permanent. According to Dr Roach the concentration of suspended solids were below those considered necessary to cause direct mortality to most animals, but the water below the dumped material did have a turbid appearance which was not evident in the unaffected turbidity or in the subject creek above the dam. The dumping of this material according to Dr Roach had a significant local effect where it smothered the vegetation. In terms of increases in turbidity, downstream water quality was degraded but not to acute levels. At the time of his inspection it appeared possible, however, that the material could move further downstream during a heavy rainfall event.

21. Professor M D Burchett is professor of plant biology at the University of Technology in Sydney and she made an inspection of the site on 10 February 1999. In her opinion an immediate result of the incident was that all of the low shrub and ground layer plants buried under the flow would have been killed by a mixture of uprooting, crushing, suffocation and absence of light. A number of shrubs and young trees that were caught in the flow were pushed over and then washed away, the remains of some of them being visible along the creek. Some of the other plants emerging through the sediment layer which are still standing are dead or apparently dying with severe loss and die back of branches. Other emergent trees and tall woody shrubs which are still buried for the first metre or more of their trunks may well be dying. This is because the trunks often rot if buried in soil.

22. According to Professor Burchett, in addition to the above impacts, the normal soil fauna and micro-organisms that comprise the soil ecosystem and live in a symbiotic relationship with plant roots will also have been destroyed by burial under a depth of sediment. While some may re-establish others will not since the life in the first metre of soil is different in composition from that which occupies deeper levels.

23. As to the likely future environmental harm, Professor Burchett is of the opinion that it seems likely that more of the emergent plants will die. The creek has re-established its path and in so doing has disturbed part of the sediment deposit further down the valley which will continue to have an effect further downstream. Native plants may recolonise the whole of the disturbed surface in time, but the area is also vulnerable to a massive weed invasion since there are some weeds higher up in the local area.

24. According to Professor Burchett, even if it were natives that would eventually recolonise the whole surface of the silt deposit, since the substrate is of different texture it will have a different mineral availability and organic matter content from the original soils and it can be expected that it will be a different subset of species and a different community structure from the original.

25. Since this would have been caused by human disturbance it must be regarded as anthropogenic harm to the ecosystem. There can also be expected to be new balance and relative abundance of faunal species which again is a human caused disturbance of the pre-existing ecosystem.

26. In considering the question of penalty, I am required to take into account a number of considerations set out in section 241 of the Protection of the Environment Operations Act.

27. The first is the extent of the harm caused or likely to be caused to the environment by the commission of the offence. Although there is some dispute in the evidence as to the amount of material which had been removed from the dam and deposited outside it, I accept the amount agreed upon by the parties and stated in the statement of agreed facts, namely approximately 1600 cubic metres of material. However the exact volume is secondary to the visible effect of the incident.

28. I accept the opinion in particular of Professor Burchett who summarised the environmental consequences and likely future consequences as follows: physical destruction to plants and soil in the flow path which is much wider than the creek bed itself; some continued erosion from the surface down the waterway and along the banks so long as it is not covered and stabilised by vegetation; possible massive weed invasion and even if completely colonised by native plants it can be expected to have a different subset of species and relative abundances from the original; and whether covered by weeds or native plants, the formal suite of species supported and their relative abundances will also be different from that of the pre-existing ecosystem.

29. Further runoff of suspended solids has the potential to cause the effect outlined by Dr Roach, principally a reduction of light penetration into the water column, possible mortality of aquatic organisms, siltation and decrease in aesthetic value.

30. The next consideration is the practical measures which may be taken to prevent, control, abate or mitigate that harm. No measures were taken by the defendant or by anyone else before the work was commenced. Sediment control measures could and should have been in place as it was likely that sediment would descend into waters. Alternatively, the material could have been placed where if adequate sediment controls were in place it was not likely to descend into waters.

31. I note that the prosecutor concedes that the measures taken since the entering of the plea by the defendant to mitigate the harm are all that could reasonably be done to mitigate that harm. It would appear that the primary reason that the defendant did not start earlier with the remediation works was that it did not accept responsibility for the incident, arguing that the Warringah Radio Control Society was responsible.

32. The next consideration is the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence. I accept the submission of the prosecutor that the defendant was in the business of earthmoving and should have foreseen the likely harm, that it should have been aware of the need for sediment controls and that its operators should have been aware of the danger of placing material in a position where it was likely to pollute waters.

33. Next is the extent to which the person who committed the offence had control over the causes which gave rise to the offence. Again I accept the submission of the prosecutor that the defendant had ultimate control over the works performed by its employees.

34. The next consideration is whether in committing the offence the person was complying with orders from an employer or a supervising employee. This factor has no relevance in this particular case.

35. I am also required to take into consideration a number of other matters. First is the fact that the defendant has pleaded guilty to the offence. In pleading guilty to the offence I accept that it is contrite and remorseful and pursuant to section 22 of the Crimes (Sentencing Procedure) Act 1999 I am required to take that factor into account.

36. Next, I accept that the defendant has co operated with the prosecutor and has carried out remediation works to the satisfaction of the prosecutor at a cost of $32,965. The defendant has also agreed to pay the prosecutor's costs in the sum of $10,000. The defendant must also bear its own costs. The defendant has had no prior convictions for environmental offences. The fact that this has been a costly exercise for the defendant I think makes it unlikely that it will re-offend.

37. As I have said, the defendant’s gross return on the contract was $6,870 and it has been required to meet the costs of remediation, the prosecutor's costs and its own costs. Nevertheless there remains an element of general deterrence in the policy of fixing penalties and I can do no better than quote from the judgment of Mahoney JA in Axer Pty Limited v Environment Protection Authority in the Court of Criminal Appeal delivered on 22 November 1993 unreported:

The legislation does not seek merely to prevent deliberate or negligent pollution. It envisages that at least in many cases proper precautions must be taken to ensure that pollution does not occur. Experience has shown that it is not enough merely to take care, accidents will happen. The legislation envisages that in many cases care must be supplemented by positive precautions. Business must be arranged and precautions taken so as to ensure that pollution will not occur.

Mahoney JA continues:

But I believe legislation of this kind contemplates that in general the cost of preventing pollution will be absorbed into the cost of the relevant industries and in that way will be borne by the community or by that part of it which uses the product which the industry produces. In assessing the quantum of a fine considerations of this kind are to be taken into account. The fine should be such as will make it worthwhile that the cost of precautions be undertaken.

And then finally Mahoney JA states:

I do not mean by this that the legislature saw the legislation as providing by payment of a fine a licence to pollute. In the end the object of the legislation is to prevent pollution and to do this inter alia by the deterrent effect of a substantial fine and by in consequence persuading the industries concerned to adopt preventive measures"

38. I conclude from these remarks of Mahoney JA that there is necessarily included, therefore, an element of general deterrence in any penalty.

39. When imposing a penalty the Court is required to have regard to the principle of even-handedness. This principle has been described by the then Chief Justice Sir Laurence Street in The Queen v Visconti (1982) 2 NSWLR 104 at 107 in which the Chief Justice quoted from his earlier decision in The Queen v Oliver (1987) ACR 174:

The second initial consideration is the ascertainment of the existence of the general pattern of sentencing by criminal courts for offences such as those under consideration. The task of the sentencing judge no less than the task of an appellate court is to pursue the ideal of even-handedness in the matter of sentencing. Full weight is to be given to the collective wisdom of other sentencing judges in interpreting and carrying into effect the policy of the legislature. This collective wisdom is manifested in the general pattern of sentences currently being passed in cases which can be recognised judicially as relevant to the case in hand.

40. In Axer Pty Limited v Environmental Protection Authority, to which I have referred, Badger-Parker J referred to the difficulty of applying the principle of even-handedness. His Honour said:

There is always a difficulty in attempting to compare the penalty in one case with the penalty in another because of the wide divergence of facts and circumstances. That task is difficult enough when one has the full text of all the relevant judgments and more difficult where the material is provided in summary form.

41. Doing the best I can, it seems to me that there are other judgments in this Court in which the facts are relatively similar to those in the present case. The first is the case of Environment Protection Authority v Taylor Woodrow Australia Pty Limited [No.2] (1997) 97 LGERA 368. That was a case where there had been pollution of a creek by silt and soil when a cofferdam that had been negligently constructed, failed. The environmental effect of that occurrence was similar to that in the present case and I imposed a penalty of $20,000.

42. A more recent example is Environment Protection Authority v Timber Industries Limited [2000] NSWLEC 39. In that case the polluting event caused no lasting environmental harm. The defendant, in order to prevent the incident re-occurring, modified its operations and in so doing expended the sum of $16,917 and bore the cost of a cleanup of the affected creek which cost it the sum of $30,000. In the light of those facts I was prepared to reduce the penalty to $15,000.

43. In my opinion an appropriate penalty in the present case is $15,000. The formal orders of the Court are therefore as follows:

1. The defendant is convicted of the offence as charged.

2. The defendant must pay a penalty of $15,000.

3. The defendant must pay the prosecutor's costs in the sum of $10,000.

4. The exhibits may be returned.