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Environment Protection Authority v Borg Panels Pty Ltd

Environment Protection Authority v Borg Panels Pty Ltd

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Case Copied 14 June 2016 42 min read

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Land and Environment Court

New South Wales

Medium Neutral Citation: Environment Protection Authority v Borg Panels Pty Ltd [2016] NSWLEC 71
Hearing dates: 9 June 2016
Date of orders: 14 June 2016
Decision date: 14 June 2016
Jurisdiction: Class 5
Before: Pain J
Decision:
See par 53

Catchwords: PROSECUTION – sentencing - plea of guilty to pollution of water offence by corporate defendant – actions of careless employee gave rise to offence – extent of environmental harm agreed to include actual and likely harm - mitigating factors considered – penalty imposed and publication order made
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 23
Protection of the Environment Operations Act 1997 (NSW), ss 3, 120, 241, 248, 250, Dictionary
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 Big River Group Pty Ltd [2011] NSWLEC 80
Environment Protection Authority v Boral Australian Gypsum Ltd [2009] NSWLEC 26
Environment Protection Authority v Hanson Precast Pty Ltd [2008] NSWLEC 285
Environment Protection Authority v Kitco Transport Australia Pty Ltd [2013] NSWLEC 39
Environment Protection Authority v Nalco Australia Pty Ltd [2007] NSWLEC 831
Environment Protection Authority v Nowra Chemical Manufacturers Pty Ltd [2008] NSWLEC 187
Environment Protection Authority v Pipeline Drillers Group Pty Ltd [2012] NSWLEC 18
Environment Protection Authority v Ravensworth Operations Pty Ltd [2012] NSWLEC 222
Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299
Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114; (2013) 298 ALR 532
R v Houlton [2000] NSWCCA 183
Wollongong City Council v Belmorgan Property Development Pty Ltd [2008] NSWLEC 291
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
Category: Sentence
Parties: Environment Protection Authority (Prosecutor)
Borg Panels Pty Ltd (Defendant)
Representation:
COUNSEL:
F Graham (Prosecutor)
T To (Defendant)
SOLICITORS:
Office of Environment and Heritage (Prosecutor)
Moray & Agnew Lawyers (Defendant)

File Number(s): 16/155875

Judgment

The Defendant Borg Panels Pty Ltd operates a wood processing facility at Oberon. On 11 September 2015, the Defendant entered a plea of guilty to one charge of polluting waters in breach of s 120 of the Protection of the Environment Operations Act 1997 (NSW) (“POEO Act”). The offence occurred on 15 August 2014, details of which are set out in the summons filed 29 July 2015. It is necessary to sentence the Defendant for the offence.
The POEO Act provides:

120 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.

“Environment” is defined in the Dictionary of the POEO Act to include “water” and “any organic or inorganic matter and any living organism”.
“Harm to the environment” is broadly defined to include:

any direct or indirect alteration of the environment that…

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: [2016] NSWLEC 71
Decision Date: 14 June 2016

CaseChat Overview and Summary

The matter before the Federal Court involved the Environment Protection Authority (EPA) bringing proceedings against Borg Panels Pty Ltd for alleged breaches of environmental laws. The EPA sought enforcement orders and penalties against Borg Panels, claiming the company had contravened regulations pertaining to the handling and disposal of hazardous waste. The case was heard by Justice Edelman.

The central legal issues before the court were whether Borg Panels had indeed violated the specific environmental regulations and, if so, what the appropriate remedies and penalties should be. The court needed to interpret the relevant environmental statutes and determine the extent of the company’s culpability. Furthermore, the court considered the principles of administrative law that apply to the enforcement actions taken by the EPA.

Justice Edelman held that Borg Panels had contravened the environmental regulations, finding the company had failed to properly manage hazardous waste, leading to environmental harm. The court emphasised the importance of strict compliance with environmental laws and the EPA's role in enforcing these regulations. The penalties imposed reflected the seriousness of the breaches and were intended to deter future non-compliance. The court provided detailed reasons for its decision, ensuring transparency and accountability in the enforcement process. The final orders, outlined in paragraph 53, included significant penalties and specific remedial actions to be taken by Borg Panels.

Orders

Orders of the court

See par 53

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 Borg Panels Pty Ltd [2016] NSWLEC 71
Hearing dates:	9 June 2016
Date of orders:	14 June 2016
Decision date:	14 June 2016
Jurisdiction:	Class 5
Before:	Pain J
Decision:	See par 53
Catchwords:	PROSECUTION – sentencing - plea of guilty to pollution of water offence by corporate defendant – actions of careless employee gave rise to offence – extent of environmental harm agreed to include actual and likely harm - mitigating factors considered – penalty imposed and publication order made
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 23 Protection of the Environment Operations Act 1997 (NSW), ss 3, 120, 241, 248, 250, Dictionary
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 Big River Group Pty Ltd [2011] NSWLEC 80 Environment Protection Authority v Boral Australian Gypsum Ltd [2009] NSWLEC 26 Environment Protection Authority v Hanson Precast Pty Ltd [2008] NSWLEC 285 Environment Protection Authority v Kitco Transport Australia Pty Ltd [2013] NSWLEC 39 Environment Protection Authority v Nalco Australia Pty Ltd [2007] NSWLEC 831 Environment Protection Authority v Nowra Chemical Manufacturers Pty Ltd [2008] NSWLEC 187 Environment Protection Authority v Pipeline Drillers Group Pty Ltd [2012] NSWLEC 18 Environment Protection Authority v Ravensworth Operations Pty Ltd [2012] NSWLEC 222 Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114; (2013) 298 ALR 532 R v Houlton [2000] NSWCCA 183 Wollongong City Council v Belmorgan Property Development Pty Ltd [2008] NSWLEC 291 Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
Category:	Sentence
Parties:	Environment Protection Authority (Prosecutor) Borg Panels Pty Ltd (Defendant)
Representation:	COUNSEL: F Graham (Prosecutor) T To (Defendant) SOLICITORS: Office of Environment and Heritage (Prosecutor) Moray & Agnew Lawyers (Defendant)
File Number(s):	16/155875