Environment Protection Authority v Bega Valley Shire Council

[1998] NSWLEC 86

Land and Environment Court

of New South Wales

CITATION:	Environment Protection Authority v. Bega Valley Shire Council [1998] NSWLEC 86
PARTIES:	PROSECUTOR Environment Protection Authority DEFENDANT Bega Valley Shire Council
FILE NUMBER(S):	50011; 50012; 50013 of 1998
CORAM:	Sheahan J
KEY ISSUES:	:-
LEGISLATION CITED:	Clean Waters Act 1970 Environmental Offences and Penalties Act 1989 Waste Minimisation and Management Act 1995 National Parks & Wildlife Act 1974 Crimes Act 1900 Clean Waters Regulations 1972
CASES CITED:	Axer Pty Limited v EPA ("Axer") (60763 of 1992, 22 November 1990); Camilleri's Stock Feeds Pty Limited v EPA ("Camilleri") (1993) 82 LGERA 21; Environmental Protection Authority v Corowa Shire Council ("Corowa") (50044 of 1997, 14 November 1997); R v Rahme (1989) 43 ACrimR 41 and Farrell v Ussher (Land & Environment Court, Cripps J, Unreported, 24 July 1990).; EPA v Capdate Pty Ltd (Stein J, 50030-31 of 1992, 10 February 1993); EPA v Iron Gates Pty Limited (Land & Environment Court, Sheahan J, No.50083 of 1997, 12 June 1998).
DATES OF HEARING:	16/07/98
DATE OF JUDGMENT:	08/14/1998
LEGAL REPRESENTATIVES:	PROSECUTOR Ms J Kelly, Barrister Steven Garrett of EPA DEFENDANT Mr S Austin, QC Mr J Sautelle, Sautelle & White

JUDGMENT:

1. INTRODUCTION

Bega Valley Shire Council ("Council") appears in response to three charges in Class 5 of the Court's jurisdiction.

They arise out of the same incident in January 1997, which did not come to the notice of the Prosecutor ("EPA"), until late in 1997.

In matters numbered 50011 and 50013, charges are brought for offences against the Environmental Offences & Penalties Act 1989 ("EOPA") in respect of alleged breaches of s 16(1) of the Clean Waters Act 1970. The Prosecutor offers no evidence in respect of those two charges and agrees that they should be dismissed.

In matter No.50012 of 1998, the Council entered a plea of guilty on 16 April 1998 to the charge that:

"between 13 and 16 January 1997 inclusive at Merimbula ... it committed an offence against the [EOPA] in that it did, without lawful authority, dispose of waste on land, contrary to s 63(1) of the Waste Minimisation and Management Act 1995" ("the Waste Act") (emphasis added).

Section 63(1) provides:

"If a person, without lawful authority, disposes of waste on any land, the person and, if the person is not the owner of the waste, the owner, are each guilty of an offence against the [EOPA]."

Council is now before the Court on questions of conviction, penalty, and costs in respect of that remaining charge, the particulars of which are that:

* the "waste" was "leachate containing phosphorus, ammonia, BOD's, COD's, organic nitrogen and suspended solids"; and

* the "land" was Bournda Nature Reserve, having an area of 5831 ha, which was gazetted on 28 June 1972. (See s 49(3) of the National Parks & Wildlife Act 1974).

Landfill leachate is defined in the evidence as the liquid that percolates through landfills, as a result of the infiltration of rainwater and/or groundwater, and the decomposition of waste. It typically contains high concentrations of dissolved substances and suspended solids, and may cause serious water pollution if not properly managed.

The volume of leachate which found its way onto the lands within Bournda Nature Reserve in this case is unknown, but the evidence suggests, and it has been agreed between the parties, that it amounted to "a large quantity, possibly millions of litres" (par 19 of Exhibit P1). In fairness to Council, none of the evidence suggests that any more than 2 million litres was involved.

The offence charged carries a maximum penalty, for a corporation, of $125,000 under EOPA s 8D(1)(a).

2. THE RELEVANT FACTS

The parties agreed to a Statement of Facts which was tendered as Exhibit P1. Not all of the contents of that agreed statement need be repeated in this judgment but the salient details are included in what follows.

2.1 The tip and the nature reserve

Council is a multi-purpose country local government council, which has a population of 28,000 people, an area of 6,000 square kilometres, and a budget of $40 million per annum, but only 28% of its land is rateable.

It runs 6 landfill waste depots and 5 transfer stations (Exhibit C2).

One of the Council's landfill waste depots is located on Sapphire Coast Drive, Merimbula ("the tip"), which is on a Crown Reserve, vested in Council.

It would appear that the tip site was set aside in 1953, and that the nature reserve was established or declared on 28 June 1972.

The presence of landfill odours within parts of the nature reserve must, therefore, be considered as typical of its background conditions, and the odours generated by the leachate in this case would be typical of those generated by a landfill operation. (Exhibit C1).Maps of the district show the tip's proximity to Bournda Nature Reserve, the southern and south-eastern boundary of which it adjoins (see Exhibits P3, P8, P9, P10 and P11).

The tip is located on the top of a ridge.

The terrain in the nature reserve near the tip is hilly and uneven, with the ground falling steeply to the north.

The area contains several gullies which all lead to a valley located some 400-500 metres from the northern boundary of the tip. A creek flows along the base of the valley in a north-east direction.

The water courses leading away from it are normally dry and would eventually reach perennial streams or water bodies. The topographic map indicates the creeks in the area are relatively small and would have limited capacity to dilute contaminants.

Dry conditions prevailed at the relevant time, and no leachate pollution is alleged to have occurred in any known watercourse.

Council appears to have adopted a rationalisation strategy which will reduce the number of landfill depots to two, one of which will be the existing facility at Eden, and the other a new facility at Jellat near Bega. The tip has a life expectancy of 6-12 months, and is expected to be closed in the near future.

Exhibit P2 indicates that Council makes no charge at the tip for what might be generally described as domestic loads, carried in by sedans, station wagons, and single axle trailers, but charges are levied for loads deposited by vehicles in excess of 1 tonne capacity.

Relevant information about the nature reserve is included in the extract of the relevant Plan of Management (Exhibit P13).

In conjunction with nearby Bournda National Park, the nature reserve "protect[s] a major part of a coastal land system" which in turn is part of "a beautiful, interesting, and in places spectacular, landscape. The nature reserve provides a scenic backdrop to the south-eastern Bega Valley".

It has "geologically interesting features", "most diverse temperate moist forests", "significant plant species", "a range of Aboriginal sites", and a "variety of habitats" for "a diverse range of plant and animal communities, including several which are poorly preserved in the region".

It is agreed between the parties that the nature reserve contains Late Devonian sediments/soils which are naturally low in nutrients, and that the vegetation in the area near the tip has adapted to soils of low nutrients (Exhibit P1 par 20).

2.2 The decisions and actions of Council relevant to the charge (1996)

In or around late 1995 or early 1996, Council's Northern Manager of Building & Planning Services ("Fuller") became concerned about the collection of leachate from the waste at the tip.

He instructed Council staff to construct a dam on the site to collect leachate and to allow the contents of the "operating cell" of the tip to be emptied into it.

The "operating cell" is the pit which is, at any particular time, currently receiving waste brought to the tip for disposal.

Exhibit P4 shows the collection of leachate waters in the dam, and Exhibit P11 shows the location of the cell close to the boundary of the nature reserve, and generally north of the dam, in the north-western end of the tip, parallel to the nature reserve which was about 3 metres away on a downhill slope.

In July 1996, there were discussions between Fuller and officers of the EPA about ensuring that no pollution occurred from the dam.

The relevant EPA officer was concerned about the stability of the wall of the leachate dam and that there be no over-topping or breach of that wall. Fuller told him that the Council intended pumping the leachate "back to the existing pits which are up the top".

Following a further inspection by Fuller and an EPA officer in December 1996, the EPA wrote to Council on 10 December 1996 (Exhibit P5) setting out its concerns about the waste depot including the structure of the leachate dam, and recommending that the dam be drained prior to its removal or reinforcement:

"Council is directed to take immediate action to pump the polluted material from the poorly constructed dam and dispose or store such material in a (sic) environmentally acceptable manner. The dam should then be either removed or converted to a structurally sound and appropriately designed leachate catch and treatment dam".

The letter observed that a failure of the dam, involving:

"The release of such a large volume of polluted waters (the black staining of the waters probably indicating that the leachate collected has a significant biochemical oxygen demand), would undoubtedly cause a significant adverse effect to the environment downstream".

Council responded by letter dated 17 December 1996 (Exhibit P6) noting the concerns and indicating that "the dam will be pumped out and spray irrigated over the rest of the site. It is then Council's intention to remove the dam". On or about 20 December 1996, Fuller instructed a contractor to pump leachate from the dam to the cell.

The Agreed Statement of Facts indicates that after some days of pumping it became apparent that there was a substantial amount of water in the cell, and that garbage was floating in it.

In late December 1996, Fuller took one month's leave. No-one was specifically delegated to look after his job during that period, but Council had an "understanding" that two other officers, Allison and Arkinstall, would "oversee matters" at the tip.

2.3 The events of January 1997

Fuller visited the tip on 7 January 1997 and gave instructions to someone (unidentified) to remove the hose from the cell, cut a drain and allow the leachate to run onto and irrigate the ground while the cell dried out.

Fuller did not notify anyone else of this decision and instructions - in particular, he did not tell Arkinstall or Allison.

The pump operator, Griffin, placed the hose outside the cell in an area close to the nature reserve, but when his pump failed, he left the site.

Fuller has since stated that he "trusted those involved to stop when they considered that the area had reached saturation".

Council ganger, Grant, took over pumping operations on 10 January but no pumping took place on 10, 11 or 12 January.

After collecting a new pump and changing the battery, pumping recommenced on 13 January 1997.

The hose was on the ground, secured on or about 13 January 1997 to a steel "star picket" by a short length of wire, and the picket driven into the ground near the discharge end of the hose.

Grant followed the leachate flow into the nature reserve for a distance of about 500 metres. He dug two trenches into a V-shape to "act as a contour drain to allow the discharge to disperse into the bushland rather than just pour out in one continuous stream".

Grant attended the site on a number of occasions on 13, 14, 15 and 16 January 1997 to fill the pump with fuel in order to continue the pumping operation.

The hose remained in its same position throughout that period, providing a 3 inch flow, observed by Wells, Council's Tip Manager and Recycling Supervisor (a contractor to the Council).

On the afternoon of 16 January 1997, Allison followed the leachate path for approximately 65 metres into the nature reserve. Although the leachate was observed to be "foaming" and "green", he did not order that the pumping be stopped.

On 16 January 1997 Wells saw "dark smelly water coming from the pipe and into the bush". He neither reported what he had seen, nor tried to stop it (see photographs in Exhibit P12, taken approximately 16 January 1997).

Another Council officer, Everett, visited the tip on the afternoon of 16 January 1997.

He observed that the dam was nearly empty and ordered the pumping to cease. He had earlier arranged for three holes to be cut in the dam wall to act as a spillway. (The breaches of the dam wall are shown in the two photographs in Exhibit P7, taken 29 January 1997).

He also saw leachate flowing from the hose in the direction of the nature reserve.

It is agreed that pumping ceased at approximately 4pm on Thursday 16 January 1997.

2.4 Finding and conviction

I am satisfied beyond reasonable doubt that Council, by its servants and agents, without lawful authority, disposed of waste, to wit leachate, on land, to wit Bournda Nature Reserve, contrary to the provisions of s 63(1) of the Waste Act, and I convict Council accordingly.

2.5 The impact of the incident

It was Allison who estimated that a large quantity of leachate, possibly millions of litres, had been discharged into the nature reserve.

The flow of leachate knocked over bracken fern, and washed leaves out of its path within the nature reserve.

Its path within the nature reserve was traced for 500 metres.

The leachate flow paths were confirmed by a National Parks & Wildlife Officer, Gall, (Exhibit P10) and display a flow generally north into the reserve.

The leachate dam is in the catchment of Back Lake. The location at which the pumped leachate was discharged onto the ground drains into the Bournda lagoon catchment.

The evidence indicates that leachate entered a normally dry watercourse leading away from the depot. There is no evidence that it reached a perennial stream in either catchment. If it had, the expert evidence indicates that it would have had deleterious effects on the aquatic environment, even under dry weather conditions.

2.6 Subsequent events

On 13 November 1997 the EPA issued a notice to Council under Regulation 21 of the Clean Waters Regulations 1972 in respect of the tip and its generation of leachate. (Exhibit P16).

The notice recites that the EPA has "on a number of occasions requested that the existing unauthorised lechate (sic) collection and treatment facilities on site be replaced with adequate facilities so as to not pose an undue risk to the environment" and that "To date, adequate facilities have not been installed".

Council was required by the notice to "do" 14 particularised things.

The EPA inspected the tip on 8 July 1998, and confirmed informally by facsimile message dated 9 July 1998 (Exhibit P14), "that the major components of works required by the Notice are complete".

The facsimile message lists some details requiring attention, and the EPA's further letter of 15 July 1998 (Exhibit P15) acknowledges assurances that "the sub-surface works required by the Notice have been installed as per the consultant's design".

The letter goes on to discuss what are identified to be "a very positive advance" and thanks Council "for your assistance in completing these works".

Photos of the improvements, taken on 14 July 1998, (Exhibit C4) speak for themselves and impress the Court that substantial improvement appears to have been made.

3. THE SCIENTIFIC EVIDENCE

The Prosecutor relied upon affidavits and oral testimony by Margaret Dorothy Burchett, a professor of plant biology at the University of Technology Sydney, and on an affidavit sworn by Paul Stuart Rendell, a senior environmental scientist employed by the EPA.

Rendell's testing indicated that the leachate flowing from the dam had high concentrations of ammonia-N, total nitrogen, total phosphorus and suspended solids, and a high biochemical oxygen demand (BOD). "Of most concern are ammonia-N, total nitrogen, total phosphorus and BOD".

The ammonia concentration of the leachate sample was "a high value" indicating "the potential to produce toxic effects including mortality in a variety of aquatic fauna".

Nitrogen and phosphorus are among the 20 or so elemental plant nutrients that are essential for plant nutrition and growth; indeed, in the context of fertiliser, they are the most commonly applied elements.

They were described in the evidence as two of the three major elements which are produced from the soil and absorbed into plant roots. However, they are also potentially serious pollutants that encourage nuisance growth of algae and other aquatic plants, and it is possible for plants to receive toxic doses of them. As Burchett observed, "fertiliser should only be applied sparingly".The samples in this case had "high values" of these two elements, indicating the potential "to stimulate excessive plant growth in receiving waters".

BOD had a similarly high result, indicating that the leachate had the potential to lower dissolved oxygen levels in receiving waters.

Burchett is an acknowledged authority on relevant matters, with a high profile beyond Australia.

She was asked by the EPA to prepare a report on environmental harm to native flora exposed to high amounts of nitrogen and phosphorus, and was given access to relevant affidavits and photographs. She did not, however, visit the site.

She testified that:

* "human-induced increases in the levels of either or both of these nutrients are likely to have detrimental effects on the native vegetation, ranging from death or the onset of overt toxic symptoms, to at the least, the favouring of the invasion of weed species into bushland areas".

* "native plants are adapted to soils low in nutrients, whereas introduced plants require higher levels. This explains why enriching the soil with urban waste such as an outflow from septic tanks and garden refuse promotes the growth of introduced plants (ie weeds)".

* "acute deficiencies of nitrogen and phosphorus are common ... once we increase the amount of plant nutrient in the soil by adding fertiliser, these mechanisms often backfire and the native plants are at a disadvantage; the weeds often enjoy the new conditions".

* while N and P levels from unpolluted water in the area were of the area of 0.5mg/l and 0.05mg/l respectively, those in the leachate samples had nitrogen levels of around 240mg/l and 2.4mg/l respectively; in other words, approximately 50-500 times greater than the natural levels in the area.

* assuming that the leachate was absorbed in part into the substrate, these events "could be expected to produce both acute and chronic toxicities, and other disturbances, in the vegetation growing in this soil". The outcome could be acute toxicity responses or more subtle long lasting chronic effects.

* the ecology of the environment affected by this incident being a declared nature reserve, the impacts could be quite long term, e.g. the washaway of seed banks and the inhibition of germination resulting in subtle changes in the balance of vegetation.

* phosphorus is less soluble and therefore less mobile in soils than nitrogen and its effects may therefore produce more long term toxic results to native flora than the nitrogen.

* the effects of nitrogen and phosphorus together in the soil are complex. "It can be speculated that there could be an interaction between the two elements in terms of toxicities, at least in some plant species".

* the different susceptibilities of species to either or both toxicities can be expected to result in an unbalancing of the relative abundances among the species in the plant community. Some might disappear from the flow path completely while others may be relatively favoured by their absence. Long term changes in the plant community alter the faunal balance of the eco system as well.

* a higher soil nutrient regime favours the invasion of weeds which are normally prevalent when there is a waste dump. "Once weed invasion occurs in an area of bushland it is almost impossible to eradicate and therefore permanently impoverishes the natural area. A weed infestation is also a very costly nuisance to manage in perpetuity".

* if high concentrations do not allow any growth for a time, erosion will occur.

* acute toxic effects in the path would not be obviously visible 15 months after the discharge.

Burchett summarised the consequences of a massive volume of leachate containing high concentrations of nitrogen and phosphorus flowing over soil and native vegetation as likely to include:

* physical damage to plants and soil in the flow path

* possible erosion because of reduction in plant cover

* acute toxicity responses in plants

* longer-term chronic effects, particularly in susceptible species

* eco system imbalances

* weed invasion (of which there is no evidence as yet).

The Defendant relied upon the report, affidavit, and oral testimony of Dr Ian Christopher Swane, the "Managing Principal" of Dames & Moore Pty Limited. Swane is a contaminated land auditor, accredited by the EPA, and is the principal environmental engineer in Dames & Moore's Sydney office. He is a well recognised and experienced practitioner in environmental engineering and auditing.

Burchett was critical of Swane for drawing conclusions without an ecological response analysis which would involve field measurements and comparative measurements in un-impacted local reference areas. The controlled monitoring she insists upon would take place over a considerable period of time such as approximately 7 years.

Burchett held to her view that Swane's approach and reference materials covered only human-potential impacts and not those impacts specific to plants and other wildlife.

Swane has substantial experience in contaminated sites and at least some substantial experience in landfill projects. He visited the site for a day on 8 May 1998, comprising 10am-6pm, some 15 months after the event. His methodology is described in detail in Exhibit C1 and appears to the Court to be thorough.

His conclusion is that no significant or long term environmental harm was caused to the nature reserve. The release of leachate did not cause any measurable environmental harm, either in the short or long term, to surface waters, soil chemistry, toxicity responses in plants or eco system imbalances.

The only short term impacts he acknowledges are odour, soil staining, erosion of leaf matter, and knocking over of bracken firm. "These impacts have been on a relatively small scale and have not caused any measurable long term environmental harm to the nature reserve".

He found no evidence that the general public was affected in any way.

Having come to these conclusions, he recommended that no remedial works were required to the Bournda Nature Reserve. He did, however, recommend an environmental improvement programme at the depot be continued so that the facility operates at best practice standards.

He rejected the criticism of his methodology as having relied upon reference materials which do not deal with botanical matters but his credit and the relevance of his observations were not damaged by the cross examination.

His methodology complied with that recommended by the NSW EPA for the investigation of a possibly contaminated site.

His credentials, credit and the relevance of his observations were not damaged by the cross examination.

He was not shaken in his optimism about the site, nor in his assertion that the erosion which is evident had resulted from natural causes.On 15 July 1998 he provided a further report responding to some of the Burchett material. Swane was not persuaded to change his conclusion in any respect as a result of her criticisms.

The dispute between Burchett and Swane is of little moment in the overall scheme of this case.

The documents to which Swane referred, and upon which he relied, were tendered in evidence as Exhibit C5. One is a set of guidelines for Australia & New Zealand for the assessment and management of contaminated sites and dated 1992. The other is a document issued as "Draft Guidelines for the NSW Site Auditor Scheme" issued by the EPA of NSW in January 1998 endorsed as "a draft document ... scheduled for review in mid-1998", requiring comments to be submitted to the EPA by 13 March 1998.

The documents upon which Burchett relied are apparently extracts from a draft revision of that guidelines document, provided to her by the EPA (Exhibit P17).

The original document in Exhibit C5 refers to soil investigation levels which are either, or both, of health based investigation levels and/or provisional phytotoxicity-based investigation levels. The document refers to a limitation of soil investigation levels in that they do not "take into account all environmental concerns (for example, the potential effects on wildlife)".

Page 25 of Exhibit P17 certainly is formatted differently, but does not seem to make any substantial change in emphasis, except that it includes a specific section on phytotoxicity (ie toxicity to plants), which is used as the indicative environmental effect to be dealt with in the context of urban redevelopment.

Assuming that pages 25, 26, 28, 29, 30 and 31 of Exhibit P17 are meant to replace pages 29-31 of Exhibit C5, I attach no substantial importance to the differences I have just summarised.

On balance, I basically accept the evidence of both experts, given that, in practical terms after an on-site inspection, Swane has concluded that there is not only no evidence of harm, but no potential harm, and Burchett, without an inspection, says that Swane's latter conclusion cannot be confirmed until some observation and monitoring takes place over a period of, say, 7 years.

The Court has to deal with the matter now, and, accordingly, accepts that there is some likelihood of future ecological change, resulting from the pollution, but that, on the basis of Swane's assessment, it is likely to be minimal.

Council also relied upon affidavit evidence from Ian Richard McComb, an associate of Environmental Management Services Pty Limited, engaged by Council to review the leachate collection systems and make appropriate recommendations.

McComb attaches detailed documents regarding what was identified and recommended and testifies that as at 11 June 1998 an inspection indicated to him that "the most significant elements of the proposed works were substantially completed".

His second affidavit annexes a July 1998 report certifying that "overall the works have been completed to a level that meets the aims of the project and only minor works items require finalisation".

4. THE COUNCIL'S MANAGEMENT RESPONSE

Council also relied upon affidavit and oral testimony by its General Manager, David George Jesson. He has been with the Council in senior positions for some 6 years, and its General Manager for 5 years.

He testified that he did not become aware until October 1997 that the EPA was investigating allegations that leachate had "escaped from Council's Merimbula landfill site".

He met EPA officials on 13 November 1997 and subsequently directed Council staff to co-operate fully with the EPA investigation. He also directed them to make themselves available for interview.

Environmental Management Services Pty Limited were engaged on 19 November 1997 to prepare a landfill environmental management plan for all of the Council's landfills.

The same company was commissioned on or about 15 February 1998 to design and supervise the construction of improvements to the Merimbula landfill. The recommended works have been carried out at a cost estimated at $80,000.

On 10 February 1998, Council resolved to engage experts to carry out a full environmental audit of all Council's activities within the shire. As at 14 July 1998 Council had short listed three tenderers for this work (see Exhibit C3). It is anticipated that the audit will cost approximately $100,000.

Pursuant to a decision also taken on 10 February 1998, Swane was engaged on 27 March 1998 to assess the nature of any environmental damage occasioned as a result of the escape of leachate. From the oral evidence the Court understands that this cost Council some $12,000.

On Council's behalf, Jesson has now commissioned an inquiry into "the circumstances which resulted in the Council being charged with offences relating to the escape of leachate". Mr John Woodward of the Office of Environmental Mediation & Inquiry was appointed on 3 April 1998 to conduct this inquiry, and Jesson believes that it will cost $30,000-$35,000.

5. SENTENCING CONSIDERATIONS

As noted above, the maximum penalty for this offence is $125,000, and Counsel for the Council conceded that this was not an appropriate case for s 556A of the Crimes Act 1900.

The only sentencing option available in this matter is the imposition of a fine, and, in determining the appropriate amount, the Court must have regard to the objective gravity of the offence and other relevant factors.

In environmental offences, the amount and types of environmental harm are key indicators of gravity, but the factual circumstances of the behaviour involved is also relevant.

Sentencing Judges have the benefit of the guidelines contained in the judgments of the Court of Criminal Appeal in two leading cases on appeal from this Court.

The judgments of both Mahoney JA and Badgery-Parker J in Axer Pty Limited v EPA ("Axer") (60763 of 1992, 22 November 1990), and that of Kirby P in Camilleri's Stock Feeds Pty Limited v EPA ("Camilleri") (1993) 82 LGERA 21, provide useful guidance and it is to be noted that the other Judges who sat in those two cases agreed with those judgments.

Some guidance is also provided by s 9 of the EOPA, which provides that in imposing a penalty for an environmental offence, the Court must take into consideration, in addition to any other matter that it considers relevant (my emphasis):

"(a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence; and

(b) the practical measures which may be taken to prevent, control, abate or mitigate that harm; and

(c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence; and

(d) the extent to which the person who committed the offence had control over the causes which gave rise to the offence; and

(e) whether in committing the offence, the person was complying with orders from an employer or a supervising employee."

"Environment" is relevantly defined in s 4 of the EOPA as including:

"all aspects of the surroundings of human beings, including:

(a) the physical factors of those surroundings, such as the land, the waters and the atmosphere; and

(b) the biological factors of those surroundings, such as the animals, plants and other forms of life; and

(c) the aesthetic factors of those surroundings, such as their appearance, sounds, smells, tastes and textures."

In addition to the five matters listed in s 9 the Court has been asked in this case to consider, as relevant matters, that Council:

* has a leadership role in the community;

* plays a role in pollution control and the provision of environmental services, including its responsibility to prosecute others under the very Act under which it is itself now charged;

* is/was not operating this tip as a commercial facility, and so (Council submits) gained or saved nothing from the commission of the offence;

* has co-operated with the EPA, at least since Mr Jesson became personally involved; and

* is contrite and remorseful.

The Court has also been asked to consider that the burden of a fine imposed on Council will fall directly on the ratepayers, who played no role in the behaviour which attracts the sanction.

In respect of s9(a), actual or likely harm, the Court notes:

(i) the large quantity of leachate admitted to have been discharged into the nature reserve;

(ii) that the leachate contained, inter alia, concentrations of nitrogen and phosphorus that were 50 and 500 times respectively the normal for that environment;

(iii) that the flow of leachate was observed by Council's officers and agents to have continued over a 3 day period;

(iv) that the leachate was coming out of a hose in a 3 inch flow;

(v) that the flow was such that bracken fern and leaf litter were damaged or dislodged in its path (events which admittedly could have been caused by natural occurrences);

(vi) that the path of the leachate was traced 500 metres into the nature reserve;

(vii) that the land onto which this leachate flowed was within a long standing nature reserve; and

(viii) that, the impact being basically non-toxic, there was no likely serious and lasting environmental harm.

The Court concludes that the amount of actual harm done in this case was, fortunately, quite small, and that while there is little likely harm there is certainly the possibility of some further harm eventuating.

As to s 9(b), practical measures to mitigate harm, the Council is to be commended for the dramatic actions it has taken since the event came to the notice of the General Manager.

However, the Court notes that much of this took place after the summonses were issued, and that only the environmental audit that has been commissioned, and the Woodward Inquiry, go beyond any statutory requirement already imposed on the Council.

In the context of the relatively small amount of actual harm in evidence in this case,

s 9(b) has little relevance to the Court, except in so far as it might refer to practical measures the defendant may have been able to take in advance to prevent the action which caused the harm, as distinct from preventing the harm itself (the latter being the only aspect of consideration to which many of the cases refer in the context of this provision).

I need hardly add that what actually occurred in this case was not a case of failing to prevent or mitigate harm, but a case of deliberately doing something which could not fail but to cause some harm, and must have been known by those responsible to be almost certain to do so.

As to s9(c), reasonable foreseeability of harm, the Court observes that in this case the Council has had its tip in this location for a long period, and the nature reserve is obviously a significant feature of this section of Council's area.

It must have been foreseeable, on the part of Council, that deliberate acts such as were carried out in this case would almost certainly harm or threaten in some way the sensitive environment of the nature reserve, an expanse of land set aside by law for the conservation, maintenance and protection of its environmental values.

As to s9(d), control over causes of harm, there is no question in this case that the defendant Council was in total control.

Indeed, by its Counsel, Council accepts responsibility for what are patently serious failures on the part of its officers and agents, not only in respect of the decisions they took to order and carry out the pump-out operation, but in the cavalier approach they adopted in:

* taking leave without giving appropriate information or proper instructions to those left in charge,

* failing to turn the flow off until the dam was virtually empty, and

* failing to bring the circumstances to the notice of their superiors and the elected Councillors until an EPA investigation was well underway.

Section 9(e), orders from above, is of little direct relevance in the circumstances where the employing/contracting corporation is charged, as here.

However, the Council might be rightly criticised for its chain of command, its obviously inadequate environmental training of staff, its staff supervision arrangements, and its apparently casual attitude to real accountability in serious environmental matters.

It could well be argued in the wider community that Council was obliged to be proactive in respect of the protection of the nature reserve, and that that policy and attitude would be expected to cascade down throughout such a public body. In this case, drains were deliberately dug into the dam wall, and the hose fixed in position, to ensure that the leachate flowed into the nature reserve.

In terms of the other "relevant matters" to be considered, I observe that in Camilleri, the processing of waste products was actually a commercial enterprise.

As Kirby P said, "Although doubtless of utility to the community, the appellant's enterprise was not an act of benevolence for the environmental benefit of society".

In this case I have taken into account the operational realities of managing a tip nearing the end of its life.

However, there is no evidence at all upon which the Court might conclude whether or not the behaviour of Council officers on this occasion was an "uncharacteristic aberration".

The Council officers are entitled to the benefit of the doubt in respect of any intention to cause environmental harm, but their actions were deliberate, and I am satisfied beyond reasonable doubt that they should have foreseen that environmental harm, perhaps of major proportions, would flow from them.

6. RELEVANT AUTHORITIES

6.1 Counsel for the Council drew the Court's attention to four specific cases, two of which I find of markedly more assistance in this case than the others:

(i) In Environment Protection Authority v Gosford City Council (50005 of 1997, 7 August 1997, Pearlman J), the Council pleaded guilty to an offence involving water pollution caused by roadworks. There was no evidence of actual environmental harm and Council had nil prior offences despite having done such roadworks over a period of many years but her Honour found that they had taken inadequate measures to prevent environmental harm in the circumstances. She considered the offence to be in the "lower range" and imposed a penalty of $10,000 plus costs.

(ii) In Environment Protection Authority v Orange City Council ("Orange") (50045 of 1995, 23 June 1995, Stein J), the Council pleaded guilty to an offence involving the escape of a substantially large, but unknown, quantity of chlorine, somewhat diluted by water, from premises at its swimming pool complex on a Saturday.

The factual situation in the matter was complex and chlorine was admitted to be highly toxic to all aquatic life, often with chronic effects.

His Honour found that quite serious environmental harm had been caused, but that remedial action had led to reasonable recovery.

His Honour considered many matters that had been attended to by Council following the spill and commented (at p6) that there was:

"nothing like an incident such as this to galvanise an authority into action".

His Honour in applying Camilleri took into account that the swimming pool was "not a business enterprise", and that the act was "obviously unintended" and not "deliberate in any way", the pollution having been caused by the carelessness of an employee.

The Council had no convictions and was noted by his Honour to be a "Council which takes pride in its environmental duties and responsibilities". It co-operated with the Prosecutor and took many commendable measures of its own volition. It demonstrated contrition and concern and entered an early plea of guilty.

His Honour specifically stated that "a matter which I bear in mind is the fact that the imposition of a fine will be an added burden to the Council" which has "only certain sources of income which include the ratepayers and those who enter the pool".

His Honour considered it was quite inappropriate to give the Council the benefit of s 556A of the Crimes Act 1900 and, in assessing the penalty, considered that environmental harm and the lack of simply identified and easily procured precautions was more significant than the lack of training and supervision systems.

His Honour attempted to grade offences into five percentile categories - lowest range 0-10%, low-mid range 10-30%, mid range 30-60%, mid to high range 60-80%, highest range 80-100%.

His Honour determined that a gradation of 20% recognised the seriousness of the offence and the substantial mitigating circumstances in Orange. He imposed a fine of $25,000 and an order for costs in the sum of $8,675.

His Honour said:

"This has been a most unfortunate incident for the Council and its residents .... The Council has its own duties to enforce environment law ... within its local government area."

His Honour went on to say that there should be, from the circumstances of the case:

"A lot to be learned ... for all Councils within the State ....".

(iii) In Environmental Protection Authority v Corowa Shire Council ("Corowa") (50044 of 1997, 14 November 1997) Cowdroy AJ dealt with a matter in which there was some legal technicality and no real dispute on the facts.

It and the related matter 50043 of 1997 concerned the discharge of effluent from a concrete saleyards operation conducted and maintained by the Council.

His Honour said that the Council was "an organisation which should be ... setting an example to the public" and later commented that "the conduct of the Council has been unmeritorious".

In the matter in which the legal technicality had been raised and discharged, a fine of $25,000 was imposed. In the related matter a fine of $20,000 was imposed. Council was also ordered to pay costs of $16,500 covering both matters.

His Honour commented:

"Council, of all organisations, should have been conscious of its obligations in relation to discharge of its own waste".

(iv) In Environment Protection Authority v Ravensworth Beef Pty Limited ("Ravensworth") (50099 and 50100 of 1996, 23 July 1997), I took into account in setting the penalty that the company involved was at the time of the hearing in serious problems and had abandoned the subject operation. [See also R v Rahme (1989) 43 ACrimR 41 and Farrell v Ussher (Land & Environment Court, Cripps J, Unreported, 24 July 1990).]

Although I imposed a penalty of only $5,000 on one charge and $1,000 on another, plus costs of $4,000, I noted that "the company and the community would seem to be very fortunate to have escaped substantial environmental harm".

6.2 Counsel for the EPA also referred the Court to my recent decision in Environment Protection Authority v Nestle Australia Limited ("Nestle") (50115 and 50116 of 1997, 29 May 1998), in which a serious quantity of malt extract was pumped into the river.

The circumstances were, in my view, accurately described as a serious mishap in which "everything that could possibly have gone wrong, in fact went wrong". The only actual harm caused was odour, but there was certainly a high potential for environmental harm.

I imposed a penalty of $25,000 across the two offences, plus costs, but quoted the injunction of Mahoney JA in Axer that:

"Business must be arranged and precautions taken so as to ensure the pollution will not occur".

7. FINDINGS AND OBSERVATIONS ON PENALTY

Applying, to all the circumstances of this case, the principles of sentencing that are set out in the judgments in Camilleri and Axer, and bearing in mind, especially, the above-quoted comments of Stein J and Cowdroy AJ, regarding the responsibilities of Councils, the Court makes the following findings and observations:

7.1 This offence in terms of actual environmental harm is at the lower, but not quite the lowest, end of the scale of seriousness adopted by Stein J in Orange.

7.2 The potential harmfulness of the nitrogen, phosphorus, etc. involved here is not quite as high as that of chlorine in Orange, or the waste in Camilleri, but higher than the malt extract in Nestle. The leachate in this case was, if toxic at all, at least only temporarily so, and there was no appreciable impact on any watercourse, aquatic fauna, animals or humans.

7.3 The attitude and behaviour of the defendant since the incident occurred is not all to its credit. From the time the events were brought to the attention of the General Manager of the defendant Council in November 1997 it is certainly the case that he, as leader of the organisation, co-operated fully with the EPA and directed his staff to do likewise. However, the dealings, in person and in writing, between Council and the EPA, during 1997, regarding the tip, and, in particular, the leachate dam, did not disclose to the EPA, until late 1997, the circumstances underpinning the charge.

7.4 The Court takes into account the responsibilities of Council to enforce environmental law within its area, and the senior positions of trust and relevant responsibility occupied by the Council officers directly implicated in the offence by the agreed facts.

7.5 It would seem that, contrary to the hope expressed by Stein J in Orange, the Council charged in this matter did not learn any particular lessons from relevant prosecutions prior to January 1997.

7.6 The Court is also entitled to take into account that many of the actions taken, that are quoted to the Court as mitigating circumstances and as evidence of contrition and remorse, were in fact taken in response to statutory duties and notices, etc., and, in most cases, only after the summonses were issued.

7.7 On the other hand, the Court must take into account that it is not the ratepayers or even the elected Councillors who are responsible for this unfortunate event, and that any fine imposed by the Court will be an added burden on those ratepayers, and also possibly on users of waste management facilities within Council's area.

7.8 This case involves deliberate acts which can in no way be described as accidental, careless or negligent. The facts disclose an appalling and total failure of duty on the part of Council, and a wanton disregard, on the part of at least some of its officers and agents, for the consequences of their actions on Council's behalf.

7.9 The EPA had in fact put Council clearly on notice, several times in 1996, of the danger of leachate leaking from this site. Council responded by proposing to the EPA that the leachate would be pumped back across the area of the tip, and yet a senior Council officer, who was directly involved in those discussions with the EPA, within weeks of that proposal (Exhibit P5), personally and deliberately organised the pumping of the leachate in circumstances where pollution of the neighbouring nature reserve was virtually inevitable.

7.10 Although the tip did not operate on a fully commercial basis, and I have not found that environmental harm was deliberately caused, the Court can only infer that the deliberate actions involved here were taken in order to save Council some trouble and/or the costs, financial or otherwise, which it would have incurred in proper management of the tip as a whole, and of the seriously taxed leachate dam in particular, and in the appropriate response to the requirements stipulated by the EPA.

As Cowdroy AJ said in Corowa, this Council "should have been conscious of its obligations in relation to the discharge of its own wastes".

As noted in Ravensworth, likewise in this case, the Council and its community would seem to be very fortunate indeed that substantial environmental harm did not result from these deliberate acts.

Deliberate acts, as distinct from oversight, distraction, or carelessness, attract special significance in sentencing.

As Badgery-Parker J observed in Axer, when reviewing EPA v Capdate Pty Ltd (Stein J, 50030-31 of 1992, 10 February 1993):

"The finding that the polluting conduct was deliberate elevated the offence in that case to a major level of gravity."

The direct actions and decisions by people in authority in defendant corporations are relevant to penalty. See, for example, EPA v Iron Gates Pty Limited (Land & Environment Court, Sheahan J, No.50083 of 1997, 12 June 1998).

General deterrence of the community, and of local government bodies in particular, must be considered in determining the penalty to be imposed in this case.

The public interest in environmentally satisfactory waste management supports the educative/deterrent role to be played by sentencing Courts in cases such as this (see e.g. Badgery-Parker J in Axer).As noted above, Counsel for Council conceded that this is not a case for the application of s 556A, but it is to be noted that although the agreed facts in this case do the Council no credit, it appears to have no relevant prior infringements recorded against it.

In arriving at the appropriate monetary penalty to impose the Court has also taken into account the following additional considerations:

* The EPA requested Council on many occasions to take action regarding the tip, and eventually felt constrained to issue a formal notice requiring substantial works.

* Council has incurred no costs whatever in actual remediation of the damage caused, but has incurred some expenditure in the programmes referred to in the evidence, especially the environmental audit and the landfill management plan (Exhibit C2), and in commissioning the investigation by Mr Woodward.

* Council will be responsible to find the amount of funds necessary to discharge not only any fine imposed, but also the "just and reasonable" costs of the EPA, which could prove to be substantial.

* The burden of any penalty really falls quite directly upon the ratepayers and not upon a broad base of consumers at large, or of shareholders in a public corporation.

* Counsel for the Council has submitted that this, on the "scale" set out by Stein J in Orange, would be in the lowest (0-10%) range of offence, and Counsel for the EPA submits that this offence would fall within the mid (30-60%) range, close to 50%.

8. CONCLUSION AND ORDERS

While I have some sympathy for the strong submissions made by Counsel for the EPA, the appropriate penalty in this case must be moderated by the fact, fortuitous though it may be for Council, that little actual environmental harm was caused, and that any harm which may eventuate at a time after the matter has been dealt with by the Court, is not likely to be substantial.In the circumstances, and in view of the strong submissions for leniency made by Counsel for the Council, I have determined that the appropriate penalty in this case is a fine of $50,000, representing 40% of the maximum penalty provided by law.

Accordingly, the formal orders of the Court will be as follows:

In Matter No.50011 of 1998:

The summons is dismissed, with no order as to costs.

In Matter No.50013 of 1998:

The summons is dismissed, with no order as to costs.

In Matter No.50012 of 1998:

1. The Defendant is convicted of the offence charged in the summons.

2. The Defendant is ordered to pay a fine of $50,000 within one month.

3. The Defendant is ordered to pay the just and reasonable costs of the Prosecutor, as agreed or as determined according to law, within one month of such agreement or determination.

All the exhibits may be returned except Exhibit P1 (the Statement of Facts) and Exhibits P11 and P12, which will remain attached to various Court papers.