Environment Protection Authority v Belessis
[2000] NSWLEC 251
•07/27/2000
Land and Environment Court
of New South Wales
CITATION: Environment Protection Authority v Belessis [2000] NSWLEC 251 PARTIES: PROSECUTOR
DEFENDANT
Environment Protection Authority
BelessisFILE NUMBER(S): 50047 of 2000 CORAM: Pearlman J KEY ISSUES: Environmental Offences :- waste disposal - plea of guilty - penalty - mitigation LEGISLATION CITED: Environmental Offences and Penalties Act 1989 s 14(2), s 15
Interpretation Act 1987 cl 30(1)(c)
Protection of the Environment Operations Act 1997 s 241
Protection of the Environment Operations (Savings and Transitional) Regulation 1998 cl 17
Waste Minimisation and Management Act 1995 s 63, s 65CASES CITED: DATES OF HEARING: 27/07/2000 EX TEMPORE
JUDGMENT DATE :07/27/2000 LEGAL REPRESENTATIVES: DEFENDANT
PROSECUTOR
Mr M M Kelly (Solicitor)
SOLICITORS
Environment Protection Authority
in person
SOLICITORS
N/A
JUDGMENT:
IN THE LAND AND
50047 of 1999
ENVIRONMENT COURT Pearlman J
OF NEW SOUTH WALES 27 July 2000
- Prosecutor
Defendant
1. The defendant, Mr George Belessis, is charged with an offence against the Environmental Offences and Penalties Act 1989 (“the EOP Act”) of disposing of waste on land without lawful authority, which is contrary to s 63 of the Waste Minimisation and Management Act 1995 (“the Waste Act”).
2. That section is presently repealed but offences committed against the EOP Act and the liability incurred under the EOP Act is not affected by such repeal and I refer to s 30(1)(c) of the Interpretation Act 1987.
3. Mr Belessis has entered a plea of guilty. The prosecutor now seeks the imposition of a fine. I note that the maximum penalty for the commission of this offence is $60,000 in the case of an individual. The prosecutor also seeks an order under s 14(2) of the EOP Act for the payment to Sydney Water, on whose land the offence was committed, of the amount of $30,600. Lastly, the prosecutor seeks its costs. These have been agreed between it and the defendant in the amount of $15,000.
4. The facts are these. Some demolition waste, comprising sand, bricks, ash, oily waste, concrete and other material, was dumped on a site owned by Sydney Water at Young Street, Waterloo between 3 and 10 January 1997. The amount of waste that was dumped was about 3700 cubic metres. A local resident noticed the dumping, contacted the Environment Protection Authority (“the EPA”) and notices were issued to the owners of three of the trucks, the numberplates of which the resident had recorded, to give information about the dumping. They complied with those notices but the defendant, Mr Belessis, voluntarily contacted the EPA and he made a written statement about the dumping. He said in his statement that the dumping was organised by a Mr Frank Layor and that Mr Belessis had organised Vietnamese truck drivers on behalf of Mr Layor. He provided a mobile phone number for Mr Layor and an address.
5. As it turned out, that address was non-existent and the phone number was, according to Telstra records, in the name of Mr Fabo Layo. Mr Layo has sworn an affidavit to the effect that he has no knowledge of Mr Belessis. The Telstra records and Mr Layo’s evidence lead to an inescapable conclusion that Mr Belessis held himself the mobile phone that he referred to.
6. As a consequence of this statement and its investigations, the EPA issued an order under s 65 of the Waste Act requiring the removal of the waste. That notice was not complied with, the defendant notifying the EPA by telephone that he did not comply with it because he had a broken leg.
7. The drivers who received notices under s 68 of the Waste Act initially lied to the EPA but they have furnished affidavits in which they now depose to the true facts, which were that the dumping and their involvement in it was instigated entirely by Mr Belessis. They were told by him to tell the EPA that what they did was confined to the days which the EPA already knew about but in fact the dumping continued until 10 January 1997. They lied about the site where the waste was generated, which was at Redfern. That involved the EPA in considerable delay in identifying the true site of the generation of the waste.
8. The truck drivers all say now that they dealt with Mr Belessis, and that Mr Belessis organised the removal of waste from Redfern to Waterloo. There was a contract entered into between the developer of the Redfern site, Mr Touma, the defendant, Mr Belessis and Mr Hong, who was one of the drivers. Mr Hong however deposed to the fact that the whole arrangement was made by Mr Belessis. The contract price was $85,000 inclusive of tipping fees.
9. Before I turn to consider relevant matters which the Court is required to take into account under s 241 of the Protection of the Environment Operations Act 1997 (“the POEO Act”), it is appropriate that I say something about the claim made by the prosecutor on behalf of Sydney Water for an order for a payment of $30,600. That claim is made under s 14(2) of the EOP Act which provides as follows:
(2) In addition to imposing a penalty for an offence arising under Division 1 or 2 of Part 2 [of the EOP Act] a court may, where it appears to the court that:
(a) a public authority has incurred costs and expenses in connection with the prevention, control, abatement or mitigation of any such harm; or
(b) a person (including a public authority) has, by reason of the commission of the offence, suffered loss of or damage to property or has incurred costs and expenses in preventing or mitigating, or in attempting to prevent or mitigate, any such loss or damage,
order the person so convicted to pay to the public authority or person the costs and expenses so incurred, or compensation for loss of or damage to property so suffered, as the case may be, in such amount as is fixed by the order.
10. The evidence about this amount comprises a letter (ex G) from the solicitors for Sydney Water to the prosecutor. It states:
Sydney Water has instructed us that it incurred resource costs of $14,300 arising from the contamination to its Waterloo site caused by the illegal dumping of waste by Mr Belessis. We are instructed that Sydney Water also commissioned environmental reports for spoil analysis and incurred costs of $16,300 in obtaining these reports. Attached is a document headed Resources Expended Central Workshops Cleanup Project to 27/07/00.
11. The difficulty I have with this claim is that I am unable at this point to relate anything that is in ex G to “… costs and expenses incurred in connection with the prevention, control, abatement or mitigation of …” environmental harm. The attached document, Resources Expended, talks about:
project activities, liaise with Mr Belessis, site inspections, liaise with council, EPA, WorkCover, prepare safe work plans, incident management plan, environmental management plan, advise Sydney Water management, prepare submissions, liaise with SWC legal adviser, liaise with Mr Belessis, site inspections, advise Sydney Water management, advise project team, overview process, prepare initial project brief, overview process.
12. A document, called a draft report and prepared by a senior environmental scientist, Mr Brian Byrnes was tendered. It analyses the material that was dumped and makes recommendations for its removal. I would be satisfied that the cost of that report would be an item of cost incurred in connection with the “prevention, control, abatement or mitigation of any such harm” but the letter from Phillips Fox speaks of $16,300 as the fee for obtaining environmental reports and that figure is not broken down between the report of Mr Byrnes and other reports. I am not satisfied on the evidence before me that any of the items under the document “Resources Expended” that I have noted refer to “… costs or expenses in connection with the prevention, control, abatement or mitigation …” or “… loss of or damage to property …” . I am not prepared at this stage to make an order under s 14(2).
13. That is not to say that Sydney Water is shut out of a claim for proper expenses for the prevention, control, abatement or mitigation of any harm for loss of or damage to property, because it may, after the date of conviction, make an application for amounts referable to those items under s 15 of the EOP Act but on the evidence now available I am not satisfied that the claim has been established.
14. I turn now to the matters arising under s 241 of the POEO Act. That Act applies by virtue of cl 17 of the Protection of the Environment Operations (Savings and Transitional) Regulation 1998.
15. The first matter to be taken into account is the extent of the harm caused or likely to be caused to the environment by the commission of the offence. The only environmental harm of the nature that is contemplated by s 241(1)(a) that the prosecutor can point to is the aesthetic appearance of Sydney Water’s land and the need to remove the demolition waste before developing that site for any purpose. The prosecutor has said that a small portion of the waste was contaminated but there is no evidence of any harm occurring from that contamination.
16. Secondly, I am required to take into account the practical measures that may be taken to prevent, control, abate or mitigate that harm. There is no question that Mr Belessis could have prevented the harm entirely by lawfully disposing of the waste as the Waste Act requires.
17. Thirdly, I am required to take into account 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. The prosecutor submits that the defendant was in the business of excavation and disposal and I agree that I may infer that he was aware of the law which requires lawful disposal of waste and the consequences of not doing so.
18. I am required to take into account the extent to which the person who committed the offence had control over the causes that gave rise to the offence. The cause which gave rise to the offence was the illegal dumping of the waste on the land of Sydney Water. The defendant had complete control over the commission of the offence. The evidence establishes that he organised the Vietnamese truck drivers and I am satisfied that he had complete control.
19. I am required to take into account, lastly, whether, in committing the offence, the person was complying with orders from an employer or supervising employer. There is no evidence to establish that Mr Belessis was committing the offence except on his own account.
20. There are some matters which go to the seriousness of the offence. A considerable amount of waste was dumped. The estimate is 3700 cubic metres. There is a necessity for the penalty to reflect a general deterrence. The Waste Act has a number of objectives, one of which is to promote and ensure environmentally responsible handling of waste and to provide appropriate sanctions for unlawful waste disposal. The matter is serious on that account.
21. Although the prosecutor submitted that the dumping was done by the defendant purely for profit, I do not think the evidence entitles me to draw that conclusion. There was however a profit element in the dumping, because, had the defendant dumped the material lawfully, then no doubt there would have been some cost in so doing.
22. A serious matter is the defendant’s behaviour in relation to the EPA investigation. He did not co-operate with the EPA. He told lies to the EPA. He misled the EPA in relation to the extent of his involvement. He created a fictitious person to divert the blame and he relied on a mobile telephone which he controlled, the account of which seemed to be in somebody else’s name.
23. The defendant has committed no prior environmental offences but the prosecutor has tendered the criminal record of the defendant. That record reduces the leniency which I might otherwise take into account in relation to a first offender.
24. In the defendant’s favour, however, there are some things that I should take into account. He is contrite. He has said to the Court this morning that he made a mistake and he tried to get out of it. He pleaded guilty at the earliest possible opportunity and he has agreed to pay the costs of the prosecutor. He has also removed some of the waste, or attempted to remediate the site in some way, but not to its full extent. He has told the Court that he does not have regular work at the moment but he is looking for work. He said, to use his expression, that he is “just out” of bankruptcy. All those matters I take into account.
25. Mr Belessis, please stand up. Mr Belessis, it is a serious offence to dump waste. It is an offence which causes harm and expense to others. I have stated the matters that I take into account in coming to the question of the imposition of a penalty. I have decided that the appropriate penalty to require you to pay, taking into account all those matters, is the sum of $15,000. I propose to order you to pay that amount. I am required to order you to pay that amount within 28 days. However, s 10 of the Fines and Penalties Act 1901 entitles you to apply to the Registrar of this Court, for time to pay, and you may do that even though my order states 28 days. You must make that application if you need time to pay.
26. My orders are as follows:
(1) The defendant is convicted of the offence with which he is charged.
(2) I impose a penalty of $15,000 to be paid to the Registrar of the Court within 28 days of today’s date.
(3) I order the defendant to pay the costs of the prosecutor in the amount of $15,000.
(4) The exhibits may be returned.
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