Environment Protection Authority v Arenco Pty Ltd - [2006] NSWLEC 244

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority of New South Wales v Arenco Pty Ltd [2006] NSWLEC 244

PARTIES: PROSECUTOR
Environment Protection Authority of New South Wales
DEFENDANT
Arenco Pty Ltd (now AXZ Constructions Pty Ltd) (ACN 081 417 601)

FILE NUMBER(S): 50036 of 2005; 50037 of 2005

CORAM: Pain J

KEY ISSUES: Prosecution :- Environmental offences - pollution of waters by sediment - whether to make orders under s250

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 21A, 22
Interpretation Act 1987 s30
Protection of the Environment Operations Act 1997 s 120, 241, 244(3), 250(1)

CASES CITED: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357;
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 ;
Environment Protection Authority v Cut and Fill Pty Ltd [2005] NSWLEC 401;
Environment Protection Authority v Ecolab Pty Limited (2002) 123 LGERA 269 ;
Environment Protection Authority v Hochtief Thiess [2005] NSWLEC 506;
Environment Protection Authority v Metziya Pty Ltd [2003] NSWLEC 196;
Markarian v The Queen (2005) 79 ALJR 1048 ;
R v O'Neill [1979] 2 NSWLR 582;
R v Sharma (2002) 54 NSWLR 300;
R v Thomson; R v Houlton (2000) 49 NSWLR 383;
State Pollution Control Commission v White Wings Limited (unreported, Land and Environment Court, 1 November 1991

DATES OF HEARING: 08/05/2006

DATE OF JUDGMENT:
05/09/2006

LEGAL REPRESENTATIVES: APPLICANT
Ross Fox (solicitor)
SOLICITORS
Department of Environment and Conservation, Legal Services Branch
DEFENDANT
Patrick Holland (solicitor)
SOLICITORS
Minter Ellison Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

9 May 2006

50036-50037 of 2005 Environment Protection Authority v Arenco Pty Limited
JUDGMENT

1 Her Honour: On 20 January 2006 the Defendant, Arenco Pty Ltd (now AXZ Constructions Pty Ltd), pleaded guilty to two breaches of s 120(1) of the Protection of the Environment Operations Act 1997 (“POEO Act”), in that it caused water pollution on two separate occasions on 8 September 2004, by allowing sediment to be introduced into waters near Mount Panorama Racing Circuit, Mount Panorama. The plea of guilty means the essential legal elements of the offence have been admitted: R v O’Neill [1979] 2 NSWLR 582 at 588.

2 Section 120(1) of the POEO Act states:

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.

3 The maximum penalty for these offences is $250,000 each for a corporation. While there have been very recent amendments to the POEO Act to provide for a penalty of $1,000,000 for s 120(1) offences, by virtue of s 30(1) of the Interpretation Act 1987, the maximum penalty in this case remains $250,000.

4 The parties tendered an statement of agreed facts (SOAF) in evidence. According to this statement, the Defendant caused water pollution on 8 September 2004 between 8.00am and 9.00am, and again between 2.15pm and…

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: [2006] NSWLEC 244
Decision Date: 05/09/2006

CaseChat Overview and Summary

The case before the Land and Environment Court of New South Wales involved Arenco Pty Ltd (now AXZ Constructions Pty Ltd) being prosecuted for two environmental offences under the Protection of the Environment Operations Act 1997. The offences involved the introduction of sediment-laden water into Hawthornden Creek and downstream waterways, including Queen Charlottes Vale Creek and the Macquarie River, on 8 September 2004. The court had to determine the appropriate penalty and whether additional orders should be made under the POEO Act. The legal issues included whether the offences constituted water pollution, the potential environmental harm caused, and the appropriate penalty considering the circumstances and statutory requirements.

The court found Arenco guilty of causing water pollution by pumping sediment-laden water into the stormwater system at the Mount Panorama Racing Circuit. The sediment-laden water ultimately flowed into the waterways, posing a risk to aquatic life and potentially degrading the water quality. The court considered various factors in determining the penalty, such as the extent of the harm, practical measures that could have been taken, the foreseeability of the harm, and the culpability of Arenco. The court found that although the offences were not deliberate, they were negligent due to the lack of adequate sediment control measures and training for employees.

The court imposed a penalty of $26,000, which included a $21,000 fine for the first offence and a $5,000 fine for the second offence, taking into account mitigating factors such as the early guilty plea, contrition, and steps taken by Arenco to prevent future incidents. Additionally, the court ordered Arenco to pay $26,000 towards sediment and erosion control works at the Silver Peaks derelict mine site at Yerranderie, and to place a notice of conviction in specified newspapers. The court also ordered Arenco to pay the prosecutor's costs of $25,050.

Orders