Environment Protection Authority v Brazel - [2002] NSWLEC 7

Reported Decision: 119 LGERA 72

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Brazel [2002] NSWLEC 7

PARTIES:
PROSECUTOR:
Environment Protection Authority
DEFENDANT:
Donald William Brazel

FILE NUMBER(S): 50018 of 2001

CORAM: Talbot J

KEY ISSUES: Prosecution :- proof of causal link between placing matter and pollution not essential - defence of honest and reasonable mistake - offence as particularised not proved - opportunity to consider reasons

LEGISLATION CITED: Evidence Act 1995 s 184
Land and Environment Court Act 1979 s 43
Protection of the Environment Operations Act 1997 s 120, s 120(1)

CASES CITED: Australian Iron & Steel Pty Ltd v Environment Protection Authority (1992) 29 NSWLR 497;
Cooper v Coffs Harbour City Council (1997) 97 LGERA 125;
Environment Protection Authority v Anning (1998) 100 LGERA 354;
Environmental Protection Authority v Taylor Woodrow (Australia) Pty Ltd (1997) 101 LGERA 226;
John L. Proprietary Limited v Attorney-General for the State of New South Wales (1987) 163 CLR 508;
Mathews v Goulburn Wool Processors Pty Limited (Smart J, Supreme Court of NSW, 6 November 1986, unreported);
Mathews v Goulburn Wool Processors Pty Ltd (1987) 10 NSWLR 419;
R v Cassell (Court of Criminal Appeal, NSW, 24 July 1996, unreported);
R v Duff (1924) 41 WN (NSW) 23;
R v Wampfler (1987) 11 NSWLR 541;
Shoalhaven City Council v State Police Control Commission (1997) 52 A Crim R 291;
Stanton v Abernathy and Another (1990) 19 NSWLR 656 ;
State Rail Authority of NSW v Hunter Water Board (1992) 28 NSWLR 721

DATES OF HEARING: 29/11/2001; 30/11/2001; 13/12/2001

DATE OF JUDGMENT:
02/05/2002

LEGAL REPRESENTATIVES:

PROSECUTOR:
Mr D.J. Jordan (Barrister)
SOLICITORS:
Environment Protection Authority
DEFENDANT:
Mr P.G. Maiden (Barrister)
SOLICITORS:
Robson & Oliver

JUDGMENT:

IN THE LAND AND Matter No. 50018 of 2001
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 5 February 2002

Environment Protection Authority

Donald William Brazel

Defendant

REASONS FOR JUDGMENT

1. The defendant, Donald William Brazel (“Mr Brazel”), has entered a plea of not guilty in answer to the charge that between 21 February 2000 and 24 February 2000, at or near Toormina, he committed an offence against s 120(1) of the Protection of the Environment Operations Act 1997 (“the PEO Act”) in that he did pollute waters.

2. The offence relates to events that occurred on 22 February 2000.

a) Pollution/Pollutants:

Liquid (the “Pesticide”) applied to premises at 13 Cavanba Road, Toormina (the “Premises”), which contained the chemicals bifenthrin and ethyl – chlorpyrifos.

b) Waters:

A tributary of Middle Creek;

and/or

Downstream thereof (the “Waters”)

c) Pollution of waters:

_ Placing in or on or otherwise introducing the Pesticide into or onto the Waters; and/or

Placing the Pesticide in or about holes in a concrete slab at the Premises where…

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.

Continue reading Environment Protection Authority v Brazel

Details

AGLC: Environment Protection Authority v Brazel [2002] NSWLEC 7
Case: [2002] NSWLEC 7
Decision Date: 02/05/2002

CaseChat Overview and Summary

The Land and Environment Court of New South Wales presided over by Talbot J heard a case between the Environment Protection Authority and Donald William Brazel, a pest exterminator. The Authority accused Brazel of contravening s 120(1) of the Protection of the Environment Operations Act 1997 by polluting waters between 21 and 24 February 2000 at Toormina. The alleged offence involved placing a pesticide containing bifenthrin and ethyl-chlorpyrifos into or onto waters near the premises at 13 Cavanba Road, Toormina, and failing to prevent it from reaching the waters. The Court considered the arguments regarding the causal link between Brazel's actions and the alleged pollution, the defence of honest and reasonable mistake, and the particularisation of the offence in the summons. The Court found that while Brazel's employees had placed the pesticide in the drilled holes, the causal link between this action and the pollution was not sufficiently established. Moreover, the Court determined that the defence of honest and reasonable mistake was not applicable in this case, as absence of fault or negligence did not constitute a valid defence. Lastly, the Court concluded that the particularisation of the offence in the summons was inadequate, as it failed to prove beyond reasonable doubt that the pesticide had reached a tributary of Middle Creek or downstream of those waters. Consequently, the Court decided to allow both parties to review the reasons before making a final determination.

Orders