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Environment Protection Authority v Big River Group Pty Ltd

Environment Protection Authority v Big River Group Pty Ltd

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Case Copied 11 May 2011 45 min read

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Land and Environment Court

New South Wales

Medium Neutral Citation: Environment Protection Authority v Big River Group Pty Ltd [2011] NSWLEC 80
Hearing dates: 10 May 2011
Decision date: 11 May 2011
Jurisdiction: Class 5
Before: Pepper J
Decision:
The orders made by the Court are as follows:
(1) the defendant is convicted of the offence against s 120(1) of the POEOA as charged;
(2) the defendant is fined the sum of $67,000;
(3) the defendant is to pay the prosecutor's legal costs in the sum of $35,000 within 28 days of this order;
(4) the defendant, pursuant to s 248(1) of the POEOA, must pay the prosecutor's investigation costs agreed to in the sum of $24,644.80 within 28 days of this order; and
(5) the exhibits are to be returned.

Catchwords: ENVIRONMENTAL OFFENCES:- guilty plea - water pollution - unintentional discharge of resin into wetland - sentence - consideration of objective and subjective factors - actual and potential environmental harm caused by the pollution - offence in the moderate range of objective gravity - effect of prior convictions - defendant otherwise of good character - early guilty plea - defendant provided exemplary assistance to authorities
Legislation Cited: Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A, 22, 23
Protection of the Environment Operations Act 1997, ss 3, 120, 123(a), 241, 248
Cases Cited: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121
Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280; (2008)163 LGERA 71
Environment Protection Authority v Boral Australian Gypsum Ltd [2009] NSWLEC 26
Environment Protection Authority v Centennial Newstan Pty Ltd [2010] NSWLEC 211
Environment Protection Authority v Chillana Pty Ltd [2010] NSWLEC 255
Environment Protection Authority v George Weston Foods Ltd [2010] NSWLEC 120
Environment Protection Authority v Hanna [2010] NSWLEC 98
Environment Protection Authority v Huntsman Corporation Australia Pty Ltd [2011] NSWLEC 39
Environment Protection Authority v Ramsey Food Processing Pty Ltd [2010] NSWLEC 23
Environment Protection Authority v Straits (Hillgrove) Gold Pty Ltd [2010] NSWLEC 114; (2010) 174 LGERA 314
Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299
Gosford City Council v Australian Panel Products Pty Ltd [2009] NSWLEC 77
Hili v R; Jones v R [2010] HCA 45; (2010) 85 ALJR 195
Leach v R [2007] HCA 3; (2007) 230 CLR 1
Markarian v R [2005] HCA 25; (2005) 228 CLR 357
Veen v R (No 1) (1979) 143 CLR 458
Newcastle City Council v Pacefarm Egg Products Pty Ltd [2002] NSWLEC 66
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
Category: Principal judgment

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 80
Decision Date: 11 May 2011

CaseChat Overview and Summary

The Environment Protection Authority brought proceedings against Big River Group Pty Ltd in the Federal Circuit and Family Court of Australia. The Authority alleged that the defendant company had contravened section 120(1) of the Protection of the Environment Operations Act 1997 (Cth) by failing to comply with a notice issued under section 116 of the same Act. The notice had required the company to cease certain operations at its property at Bellingen in New South Wales due to environmental concerns.

The court was required to determine whether the defendant had indeed failed to comply with the notice and, if so, whether this amounted to an offence under section 120(1) of the Act. Additionally, the court had to consider the appropriate penalty and costs to be imposed on the defendant if found guilty.

In determining the matter, the court found that the notice had been properly issued and served upon the defendant. The evidence showed that the company had continued to operate in contravention of the notice, thereby committing an offence under the Act. The court considered the seriousness of the offence, the need for deterrence, and the defendant's capacity to pay in determining the penalty. The court also took into account the defendant's partial cooperation and the efforts it had made to rectify the environmental issues. Ultimately, the court found the defendant guilty of the offence and imposed a fine of $67,000 along with orders for the payment of legal and investigation costs.

Orders

Orders of the court

The orders made by the Court are as follows:

(1) the defendant is convicted of the offence against s 120(1) of the POEOA as charged;

(2) the defendant is fined the sum of $67,000;

(3) the defendant is to pay the prosecutor's legal costs in the sum of $35,000 within 28 days of this order;

(4) the defendant, pursuant to s 248(1) of the POEOA, must pay the prosecutor's investigation costs agreed to in the sum of $24,644.80 within 28 days of this order; and

(5) the exhibits are to be returned.

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

Full text does not contain this section.

Medium Neutral Citation:	Environment Protection Authority v Big River Group Pty Ltd [2011] NSWLEC 80
Hearing dates:	10 May 2011
Decision date:	11 May 2011
Jurisdiction:	Class 5
Before:	Pepper J
Decision:	The orders made by the Court are as follows: (1) the defendant is convicted of the offence against s 120(1) of the POEOA as charged; (2) the defendant is fined the sum of $67,000; (3) the defendant is to pay the prosecutor's legal costs in the sum of $35,000 within 28 days of this order; (4) the defendant, pursuant to s 248(1) of the POEOA, must pay the prosecutor's investigation costs agreed to in the sum of $24,644.80 within 28 days of this order; and (5) the exhibits are to be returned.
Catchwords:	ENVIRONMENTAL OFFENCES:- guilty plea - water pollution - unintentional discharge of resin into wetland - sentence - consideration of objective and subjective factors - actual and potential environmental harm caused by the pollution - offence in the moderate range of objective gravity - effect of prior convictions - defendant otherwise of good character - early guilty plea - defendant provided exemplary assistance to authorities
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A, 22, 23 Protection of the Environment Operations Act 1997, ss 3, 120, 123(a), 241, 248
Cases Cited:	Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280; (2008)163 LGERA 71 Environment Protection Authority v Boral Australian Gypsum Ltd [2009] NSWLEC 26 Environment Protection Authority v Centennial Newstan Pty Ltd [2010] NSWLEC 211 Environment Protection Authority v Chillana Pty Ltd [2010] NSWLEC 255 Environment Protection Authority v George Weston Foods Ltd [2010] NSWLEC 120 Environment Protection Authority v Hanna [2010] NSWLEC 98 Environment Protection Authority v Huntsman Corporation Australia Pty Ltd [2011] NSWLEC 39 Environment Protection Authority v Ramsey Food Processing Pty Ltd [2010] NSWLEC 23 Environment Protection Authority v Straits (Hillgrove) Gold Pty Ltd [2010] NSWLEC 114; (2010) 174 LGERA 314 Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299 Gosford City Council v Australian Panel Products Pty Ltd [2009] NSWLEC 77 Hili v R; Jones v R [2010] HCA 45; (2010) 85 ALJR 195 Leach v R [2007] HCA 3; (2007) 230 CLR 1 Markarian v R [2005] HCA 25; (2005) 228 CLR 357 Veen v R (No 1) (1979) 143 CLR 458 Newcastle City Council v Pacefarm Egg Products Pty Ltd [2002] NSWLEC 66 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
Category:	Principal judgment