Environment Protection Authority v Allan Andrew Keogh

[1999] NSWLEC 129

Land and Environment Court

of New South Wales

CITATION:

Environment Protection Authority v Allan Andrew Keogh [1999] NSWLEC 129

PARTIES

PROSECUTOR
Environment Protection Authority

DEFENDANT
Allan Andrew Keogh

NUMBER:

50088 of 1998

CORAM:

Cowdroy AJ

KEY ISSUES:

Environmental Offences :- Contempt - plea guilty - waste disposal.

LEGISLATION CITED:

Supreme Court Rules 1970
Environmental Offences and Penalties Act 1989, s 14(1)

DATES OF HEARING:

02/04/1999; 02/05/1999; 04/06/1999; 04/09/1999; 04/19/1999

DATE OF JUDGMENT DELIVERY:

06/08/1999

LEGAL REPRESENTATIVES:

PROSECUTOR
Mrs J Kelly (Barrister)

SOLICITORS
Environment Protection Authority

DEFENDANT
Mr N S Williamson (Barrister) (for part)

SOLICITORS
Reimer Winter The Lawyers

JUDGMENT:

Statement of Charge filed 6 April 1999

1. On 6 April 1999 the prosecutor by notice of motion charged the defendant with contempt of court as follows:-

The Defendant is in contempt of the Court’s orders of 21 September 1998 by failing to comply with Order 3 (1) in that he has failed to remove all tyres and baled plastic from the property known as and situated at 34-60 Bradley Street, Orchard Hills (Lot 2 DP 541090).

The orders resulted from a prosecution instituted against the defendant pursuant to s 14(1) of the Environmental Offences and Penalties Act 1989, and are hereafter referred to as “the Orders”.

2. The defendant has pleaded guilty to such charge.

3. The defendant has adduced no evidence in mitigation of penalty other than to state that the breach resulted from “the rain”.

4. On 21 September 1998 the defendant consented to orders being made which required him to remove all tyres and baled plastic from the property known as and situated at 34-60 Bradley St, Orchard Hills being Lot 2 in Deposited Plan No 541090. The details concerning such property are contained in a judgment of this court delivered this day in respect of a previous notice of motion filed by the prosecution against the same defendant concerning the identical property.

5. I do not accept that there has been any valid reason to excuse the defendant for failure to comply with the Orders. In the six month period from the 21 September 1998 until the 31 March 1999 the defendant had ample opportunity to bring to the court’s attention any difficulty or problem associated with the remediation of the site in order to comply with the Orders. The defendant appeared before this Court during February 1999 in respect of the earlier charge of contempt and no suggestion was made that he would have any difficulty in complying with the Orders. As at the 5 February 1999 the defendant had removed no tyres or baled plastic from the site.

6. Surprisingly on 5 February 1999 the defendant conceded that the whole task of removing the tyres and the baled plastic could have been completed within a period of 2 to 3 weeks. When the original orders were made the prosecution agreed to permit the defendant a period of 6 months to comply with the Orders and therefore allowed him a considerable period in which to comply.

7. The failure therefore of the defendant can only be regarded as deliberate and his conduct challenges the court’s authority.

Penalty

8. The defendant is found guilty of the charge of contempt. Having considered the pre-sentence report the court orders that the defendant should be afforded a final opportunity to comply with the Orders by removing all tyres and baled plastic from the site. Accordingly, sentence will be deferred until Monday 9 August 1999. If the Orders have been totally fulfilled by this date, that circumstance will be reflected in the penalty. Similarly, if there has been a failure to do so it will also be taken into consideration. The court on this occasion will be guided by evidence from the prosecution to establish whether the Orders have been fulfilled.