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Environment Protection Authority v Buchanan (No 2)

Environment Protection Authority v Buchanan (No 2)

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Case Copied 30 March 2009 75 min read

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Reported Decision: 165 LGERA 383

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Buchanan (No 2) [2009] NSWLEC 31

PARTIES: PROSECUTOR
Enivronment Protection Authority
DEFENDANT
Ruth Buchanan

FILE NUMBER(S): 50074 of 2007

CORAM: Pain J

KEY ISSUES: ENVIRONMENTAL OFFENCES :- sentencing - breach of conditions of environment protection licence - operation of hazardous industrial waste treatment and storage facility - clean up notices issued not complied with - sole director liable for environmental offence - potential for significant environmental harm - harm foreseeable - negligent conduct of business - consideration of means to pay as defendant bankrupt - mitigating factors - whether third party clean up costs payable - whether legal costs payable - appropriate penalty

LEGISLATION CITED: Protection of the Environment Operations Act 1997 s 3, s 64, s 169, s 241, s 246, s 298(1)
Crimes (Sentencing Procedure) Act 1999 s 3A, s 21A, s 22
Criminal Procedure Act 1986 s 257
Fines Act 1996 s 6
Land and Environment Court Act 1979 s 41
Occupational Health And Safety Act 2000

CASES CITED: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Bentley v BGP Properties Pty Limited (2006) 145 LGERA 234
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Carbonne Shire Council v Environmental Protection Authority (2001) 115 LGERA 304
Environment Protection Authority v Ableway Waste Management Pty Ltd and Anor [2005] NSWLEC 469
Environmental Protection Authority v Australian Waste Recyclers 1 Pty Ltd [2005] NSWLEC 739
Environmental Protection Authority v Ballina Shire Council (2006) 148 LGERA 278
Environment Protection Authority v Barnes [2006] NSWCCA 246
Environmental Protection Authority v BlueScope Steel (AIS) Pty Limited [2004] NSWLEC 400
Environment Protection Authority v Buchanan [2008] NSWLEC 315
Environment Protection Authority v Douglass [No 2] [2002] NSWLEC 94
Environment Protection Authority v Eljo Pty Limited;Environment Protection Authority v Solo Waste Australia Pty Limited [2005] NSWLEC 341
Environment Protection Authority v Emerald Peat Pty Ltd (in liq) [1999] NSWLEC 147
Environment Protection Authority v Hogan [2008] NSWLEC 125
Environment Protection Authority v HTT Huntley Heritage Pty Ltd [2003] NSWLEC 142
Environment Protection Authority v Incitec Ltd (2003) 131 LGERA 176
Environmental Protection Authority v Nalco Australia Pty Ltd [2007] NSWLEC 831
Environment Protection Authority v Obaid [2005] NSWLEC 171
Environment Protection Authority v Rethmann Australia Environmental Services [2003] NSWLEC 351
Environment Protection Authority v Sydney Ship Repair and Engineering Pty Ltd [2005] NSWLEC 236
Environment Protection Authority v Taylor (No 4) (2002) 120 LGERA 414
Environmental Protection Authority v Timber Industries Ltd [2001] NSWLEC 25
Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299
Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189
Latoudis v Casey (1990) 170 CLR 534
Newcastle City Council v Pace Farm Egg Products [2002] NSWLEC 66
R v Carroll [2008] NSWCCA 218
R v Rahme (1989) 43 A Crim R 81
R v Sharma (2002) 54 NSWLR 300
R v Slattery (1996) 90 A…

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: [2009] NSWLEC 31
Decision Date: 30 March 2009

CaseChat Overview and Summary

The Land and Environment Court of New South Wales was asked to sentence Ruth Buchanan, the sole director of Plastech Operations Pty Ltd, for a breach of her environmental licence. The offence occurred between 29 September 2006 and 12 April 2007 at St Mary's. Buchanan had pleaded guilty to the offence. The Court had to consider the objective and subjective factors relevant to sentencing under the Protection of the Environment Operations Act 1997. The maximum penalty for the offence was $250,000. The Court also had to consider whether Buchanan should be liable for clean up costs incurred by the Environment Protection Authority and by the owners of the premises which Buchanan had leased for her business. The Court ordered Buchanan to pay a fine of $39,500, the EPA's clean up costs of $88,395.75 and the Wongs' clean up costs of $375,933.43. Each party was ordered to pay its own costs of the vacation of the hearing. The Defendant was ordered to pay the Prosecutor's costs of the proceedings.

Orders