Environment Protection Authority v Alan Andrew Keogh

[1998] NSWLEC 112

Land and Environment Court

of New South Wales

CITATION:	Environment Protection Authority v. Alan Andrew Keogh [1998] NSWLEC 112
PARTIES:	PROSECUTOR Environment Ptotection Authority DEFENDANT Alan Andrew Keogh
FILE NUMBER(S):	50088 ; 50089 of 1998
CORAM:	Cowdroy J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmental Offences and Penalties Act 1989 s14(1) Waste Minimisation and Management Act 1995 s 8DA(2), s 63, s 65, s 65(1), s 65(3)
CASES CITED:
DATES OF HEARING:	21/09/98
DATE OF JUDGMENT:	09/21/1998
LEGAL REPRESENTATIVES:	PROSECUTOR Mrs J Kelly Environment Protection Authority DEFENDANT By Himself

JUDGMENT:

1. In these proceedings the Defendant is charged that between 2 June 1997 and 4 March 1998 at Orchard Hills he committed an offence against the Environmental Offences and Penalties Act 1989 ("the Act") by failing to comply with a direction given to him by Notice pursuant to Section 65(1) of the Waste Minimisation and Management Act 1995 ("the Waste Management Act"), contrary to Section 65(3) of that Act. The Act by Section 8DA(2) provides that a person who commits an offence referred to in Part 5 Schedule 1 of the Act is liable to a penalty not exceeding the amount specified in that Part in respect of that offence. Such schedule identifies the failure to comply with a direction under Section 65(3) of the Waste Management Act and specifies a penalty of $15,000.

2. The Defendant is also charged that, between 6 March 1997 and 4 march 1998 he disposed of waste, namely tyres, on the said land contrary to Section 63 of the Waste Minimisation and Management Act 1995.

3. The evidence discloses that Oscearth Pty Limited purchased lands known as Lot 2 Bradley Street, Orchard Hills in 1983 ("the land"). In September 1984 Oscearth Pty Limited leased to the Defendant and Lynne Keogh a portion of the land being the house and immediate surrounds. The director of that company, Mr John Mario Stillone was aware that the Defendant conducted a trucking business. During 1993 Mr Stillone became aware that the Defendant had placed a large quantity of rubbish on the leased property, including a quantity of tyres.

4. At the instigation of Mr Stillone, the managing agent of the property, Mr Bruce Kilgour of M J Davis Real Estate, Penrith by letter dated 31 January 1994 drew the attention of the Defendant to a fact that piles of tyres had not been cleared from the land and gave notice that the lessor required immediate steps to be taken to reinstate the land to its former condition. A further letter in similar terms was addressed to the Defendant on 1 February 1994, but this time with a fourteen day time limit. Legal action was threatened if the request was not met. Further correspondence ensued in February. Photographs attached to the affidavit of Mr Stillone sworn 6 April 1998 demonstrate the piles of tyres accumulated on the property, in close proximity to a series of earth dams. Despite the requests, the tyres remained on site.

5. On 10 May 1994 the land was sold at auction by Oscearth Pty Limited to Mint Holdings Pty Limited, apparently subject to the tenancy of the Defendant. In July 1994 a lease was entered into between the new owner and the Defendant of portion of the land. Initially the lease was to operate for period of two years from 11 July 1994 to 10 July 1996. A second lease was signed on 18 February 1997 which was retrospectively to commence on 11 July 1996 and terminate on 10 July 1998. The evidence of the director of Mint Holdings Pty Limited namely Mr Bee Hong Leo discloses that the current owner has purchased the land for investment purposes and conducts no activities thereon. The only activities are conducted by Mr Keogh. Mr Leo's affidavit also disclose that there have been numerous telephone conversations with the Defendant concerning removal of the tyres and rubbish dumped on the premises. In addition correspondence from the owner's solicitors confirms that the current owner had demanded that the tyres and rubbish

were to be removed by mid April 1997. Again, the tyres and rubbish remained.

The Offence

6. Mr Kenneth Ralph Hardy, an environmental protection officer has visited the subject premises on many occasions since 1993. His evidence confirms that the Defendant operates a transport business from his leased portion of the property but that the property is otherwise of a rural nature. In an area of about 1,200 square metres, located partially upon the area leased by the Defendant, but manly upon land adjoining owned by the lessor, piles of tyres exist. Five Notices pursuant to the Clean Waters Regulation 21 have been issued to companies associated with Mr Keogh directing him to clean up the tyres and baled plastic located on the property. For example, one Notice required all baled plastic, tyres and debris to be removed from the vicinity of the dam on the premises within sixty days of the 1 February 1995. Two of such Notices had been served in or around 1 February 1995. In addition, the local Council has since 1992 issued Notices requiring removal of the tyres. All Notices and requests of the Council and

of the respective owners have been ignored.

7. In 6 March 1997 Mr Hardy visited the subject premises and observed that the pile of tyres remained in the same position as it had been when the Notice with him was served. After a discussion with the Defendant, a Notice under Section 65 of the Waste Management Act was served requiring the removal of all used tyres and baled plastic to be removed by 31 May 1997. On 17 June a further inspection revealed that no effort had been made to remove the tyres. On 9 October 1997 a record of interview took place between the Defendant and Mr Hardy and on 5 October the video footage was taken. The final inspection took place on 4 March 1998 which revealed that approximately 10,000 tyres remained at the site.

The Evidence

8. The photographs and video tendered in evidence show that the vacant land has become a dump for old vehicles and for old tyres. The location of such rubbish is in close proximity to the system of dams. The evidence discloses that the storage of tyres in such a manner is likely to cause a risk of fire and constant pollution, the generation of conditions likely to promote disease such as Ross River Fever and possible water pollution in the event that burning of tyres occurred through any cause. Certain principles have been adopted by the New south Fire Brigades in their draft guidelines known as Bulk Storage of Rubber Tyres Guideline. The Code of practice adopted has been followed in most states of Australia and is based upon a standard adopted by the United States of America National Fire Protection Association Standard NFPA 231D-Standard for Storage Rubber Tyres 1994 Edition. Such standard provides for storage of scrap rubber tyres in an orderly manner, on level surfaces to prevent runoff, the conduct of an

effective maintenance program to control weeds, grass and other combustible materials, and appropriate measures for fire fighting operations. No such practices were adopted by the Defendant.

The Penalty

9. The Defendant has pleaded guilty to the offence as charged in proceedings No 50088 of 1998. In view of this plea, the Prosecutor offers no evidence in proceedings No 50089 of 1998.

10. The Defendant has been provided with five Notices prior to the institution of this prosecution. The Defendant chose to ignore such Notices and chose to ignore the Notice provided to him under the Waste Management Act, as well as requests from the local Council and lessors. The record of interview discloses that he had a disregard for any legal requirements concerning the maintenance of the premises in accordance with the requirements of a relevant environmental statutes. It appears that he has permitted another company or firm to use the premises as a dump. Further, additional tyres have been added to the piles since the Notices were first served under the Clean Water Act.

11. The Defendant, who appears unrepresented, has now co-operated with the Prosecutor by his agreement to remove all of the tyres from the site, as is reflected in the Order made hereunder. The Defendant has also agreed to pay the Prosecutor's costs. In view of the history, the Court, but for the co-operation, would have imposed the maximum penalty.

Orders

12. The Court orders that:

In proceedings No 50088 of 1998:

1) The Defendant is convicted of the offence as charge and fined the sum of $12,000.

2) The payment of such fine is to be made by 21 March 1999.

3) Pursuant to Section 14(1) of the Act the Defendant is to:

(1) Remove from the property known as 34-60 Bradley Street, Orchard Hills (Lot 2 DP 541090) (the property), all tyres and baled plastic (the waste) currently on the property by 31 March 1999.

(2) (a) Dispose of the waste at a waste facility legally able to accept that type of waste;

(b) obtain receipts for the disposal of the waste from the waste facility which receives it;

(c) send the receipts referred to in Order 2(b) to:

The Manager

Sydney Indusrty,

EPA,

Locked Bag 1502,

Bankstown NSW 2200

by no later than 16 April 1999.

(3) Not unlawfully deposit, place or otherwise dispose of any further waste on the property.

4) The Defendant to pay the Prosecutor's costs in the agreed sum of $6,500 to be paid by 21 March 1999.

In proceedings No 50089 of 1998:

1) The summons be withdrawn and dismissed.