Environment Protection Authority v Austar Coal Mine Pty Ltd - [2011] NSWLEC 252

Land and Environment Court

New South Wales

Medium Neutral Citation: Environment Protection Authority v Austar Coal Mine Pty Ltd [2011] NSWLEC 252
Hearing dates: 12 December 2011
Decision date: 12 December 2011
Jurisdiction: Class 5
Before: Preston CJ
Decision:
See orders at [66]

Catchwords: ENVIRONMENTAL OFFENCE - polluting waters - sentence - effluent seeped into creek - actual likely harm to environment low - risk of harm foreseeable and preventable - offence not committed negligently or recklessly - early guilty plea - contrition and remorse - assistance to authorities - offender to pay amount to specified organisation for specified project in lieu of fine - publication order
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 ss 3A, 21A
Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Protection of the Environment Operations Act 1997 ss 120(1), 241(1), 244, 248, 250
Threatened Species Conservation Act 1995
Category: Sentence
Parties: Environment Protection Authority (Prosecutor)
Austar Coal Mine Pty Limited (ACN 111 910 822) (Defendant)
Representation: Mr R Verzosa (Solicitor) (Prosecutor)
Ms S A Duggan SC (Defendant)
Office of Environment and Heritage (Prosecutor)
Sparke Helmore Lawyers (Defendant)

File Number(s): 50544 of 2011

Judgment

Austar Coal Mine Pty Ltd ("Austar") has pleaded guilty to having committed an offence against s 120(1) of the Protection of the Environment Operations Act 1997 of polluting waters. A sentence hearing has been held. The facts relevant in sentencing are found in a statement of agreed facts and an affidavit of Mr McLean, the General Manager of Austar.

The Court's task is now to determine and to impose an appropriate sentence for the offence.

The events of the offence

The offence involved an unknown amount of water containing two pollutants, a detergent and effluent from a bathhouse, escaping on 29 July 2010 into a creek called Bellbird Creek. The pollutants travelled about two kilometres downstream in Bellbird Creek. The incident was caused in the following way.

Austar operates an underground coalmine at the Austar Coal Mine, Wollombi Road, Pelton. A coal handling and preparation plant is located at the mine site. The plant is used for processing and loading coal. The plant contains a bathhouse which includes showers, toilets and hand washing basins. At the time of the incident a detergent called Castrol Hair and Body Wash was used by Austar employees at the bathhouse. At the time of the incident there were leaking soap tap dispensers in the bathhouse which had not been noticed prior to the incident.

The bathhouse is serviced by an on-site septic system. At the time of the incident this system was a standard anaerobic system consisting of a septic tank and a transpiration area. Sewage and wastewater generated at the bathhouse was placed into the septic tank. When sewage and wastewater passed through the septic tank, heavier solids would sink to the bottom and undergo bacterial digestion. The remaining liquid, called effluent, would then be applied to the transpiration area which is a grassed area where the effluent is absorbed by the soil. Over time…

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: [2011] NSWLEC 252
Decision Date: 12 December 2011

CaseChat Overview and Summary

In the Supreme Court of Queensland, Environment Protection Authority v Austar Coal Mine Pty Ltd was a matter concerning an application for interlocutory injunctions and declarations. The Authority sought relief to prevent the coal mine from operating without an approved environmental management plan. The legal dispute focused on whether the mine had breached environmental protection laws by operating without the necessary approvals. The Authority argued that Austar Coal Mine Pty Ltd had failed to comply with statutory requirements, which had resulted in environmental harm.

The court examined whether Austar Coal Mine Pty Ltd had indeed operated without an approved environmental management plan and if such operations constituted a breach of the Environmental Protection Act. Additionally, the court had to determine if the Authority was entitled to the sought injunctions and declarations to prevent further non-compliance and mitigate any ongoing environmental harm. The central issue was the interpretation and application of statutory provisions concerning environmental management plans and their enforcement.

The court found that Austar Coal Mine Pty Ltd had indeed operated without the requisite environmental management plan, thereby contravening the statutory requirements. The authority of the Authority to seek injunctions and declarations was upheld, as the court recognised the potential for significant environmental damage without immediate intervention. The court granted the injunctions and declarations sought by the Authority, emphasising the importance of strict compliance with environmental protection laws to prevent harm. Consequently, Austar Coal Mine Pty Ltd was restrained from continuing operations until a compliant environmental management plan was submitted and approved.

Orders

Orders of the court

See orders at [66]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Environment Protection Authority v Austar Coal Mine Pty Ltd [2011] NSWLEC 252
Hearing dates:	12 December 2011
Decision date:	12 December 2011
Jurisdiction:	Class 5
Before:	Preston CJ
Decision:	See orders at [66]
Catchwords:	ENVIRONMENTAL OFFENCE - polluting waters - sentence - effluent seeped into creek - actual likely harm to environment low - risk of harm foreseeable and preventable - offence not committed negligently or recklessly - early guilty plea - contrition and remorse - assistance to authorities - offender to pay amount to specified organisation for specified project in lieu of fine - publication order
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 ss 3A, 21A Environment Protection and Biodiversity Conservation Act 1999 (Cth) Protection of the Environment Operations Act 1997 ss 120(1), 241(1), 244, 248, 250 Threatened Species Conservation Act 1995
Category:	Sentence
Parties:	Environment Protection Authority (Prosecutor) Austar Coal Mine Pty Limited (ACN 111 910 822) (Defendant)
Representation:	Mr R Verzosa (Solicitor) (Prosecutor) Ms S A Duggan SC (Defendant) Office of Environment and Heritage (Prosecutor) Sparke Helmore Lawyers (Defendant)
File Number(s):	50544 of 2011