Environment Protection Authority v Abigroup Contractors Pty Ltd - [2003] NSWLEC 342

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Abigroup Contractors Pty Limited [2003] NSWLEC 342

PARTIES:
PROSECUTOR
Environment Protection Authority
DEFENDANT
Abigroup Contractors Pty Limited (ACN 000 201 516)

FILE NUMBER(S): 50085 of 2003

CORAM: Cowdroy J

KEY ISSUES: Prosecution :- Water pollution - dewatering of wastewater dam - escape of wastewater during pumping operations - penalty

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999, s 21A, s 22
Protection of the Environment Operations Act 1997, s 120(1), s 241(1)

CASES CITED: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357;
Cameron v The Queen (2002) 76 ALJR 382;
Environment Protection Authority v Anning (1998) 100 LGERA 354;
Environment Protection Authority v Collex Pty Ltd (2001) 115 LGERA 337;
Environment Protection Authority v Ecolab Pty Limited (2002) 123 LGERA 269;
Mathews v Goulburn Wool Processors Pty Limited (Smart J, Supreme Court of New South Wales, 6 November 1986, unreported);
R v Thomson; R v Houlton (2000) 49 NSWLR 383;
State Pollution Control Commission v White Wings Limited (Bignold J, Land and Environment Court, 1 November 1991, unreported)

DATES OF HEARING: 15/12/2003

EX TEMPORE
JUDGMENT DATE :
12/15/2003

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr D. Samuels (Solicitor)
SOLICITORS
Environment Protection Authority
DEFENDANT
Mr I. Lloyd QC
SOLICITORS
Clayton Utz

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

50085 of 2003

Cowdroy J

15 December 2003

Environment Protection Authority

Prosecutor

Abigroup Contractors Pty Limited (ACN 000 201 516)

Defendant

Judgment

Introduction

1 By summons filed 11 August 2003 the Environment Protection Authority (“the prosecutor”) charges Abigroup Contractors Pty Limited (“the defendant”) with an offence committed against s 120(1) of the Protection of the Environment Operations Act 1997 (“the POEO Act”). Such charge alleges that between 20 August 2002 and 21 August 2002 the defendant polluted waters by pumping or causing wastewater containing ammonia, phosphorus and nitrogen (“the wastewater”) to be pumped to a position where the pollutant descended or was likely to descend into a nearby watercourse which leads to Prospect Creek. The prosecutor alleges that the defendant caused such pollution while it was dewatering a wastewater dam at 1191 The Horsley Drive, Wetherill Park (“1191 Horsley Drive”).

2 Section 120(1) of the POEO Act provides:-

(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.

3 The defendant entered a plea of guilty on 27 October 2003. Accordingly the Court is only required to determine the appropriate penalty.

Agreed facts

4 The defendant has been incorporated since 1957 as stated in the agreed facts. The affidavit of Mr Ronald James Yates sworn 12 December 2003 deposes that the defendant was incorporated in 1961. It is a large construction and infrastructure company specialising in civil engineering and building construction, mining works, project management, asset management, maintenance and other related activities.

5 In February 2002 the defendant began a project subject to…

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: [2003] NSWLEC 342
Decision Date: 12/15/2003

CaseChat Overview and Summary

The Land and Environment Court of New South Wales heard a case between the Environment Protection Authority and Abigroup Contractors Pty Limited, a large construction and infrastructure company. The Environment Protection Authority charged Abigroup Contractors with an offence under Section 120(1) of the Protection of the Environment Operations Act 1997, alleging that the company polluted water by pumping wastewater from a dam, causing it to flow into a nearby watercourse leading to Prospect Creek. Abigroup Contractors pleaded guilty to the charge, and the court was required to determine the appropriate penalty. The court considered the extent of the potential harm caused, the measures taken to prevent harm, the foreseeability of the harm, and the extent of the defendant's control over the offence.

The court found that although no actual environmental harm occurred, the potential for harm was significant. Proper monitoring of the pumping operations could have prevented the incident. The court also found that the incident was foreseeable and that the defendant had control over the offence. The court considered the defendant's guilty plea, which qualified as an early plea of guilty, and granted a 25% discount on the penalty. The court also considered other sentencing factors, such as the defendant's cooperation with the prosecutor and its previous offence history.

Taking into account the absence of proven actual environmental harm and the circumstances of the offence, the court decided that the culpability of the defendant should be reflected by a penalty of $50,000, reduced by 25% to $37,500. The court ordered that Abigroup Contractors be convicted of the offence as charged, pay a penalty in the sum of $37,500, and pay the prosecutor's costs in the sum of $16,000. The court also ordered that the map and aerial photograph attached to Exhibit "A" be returned.

Orders