Land and Environment Court
of New South Wales
CITATION: Environment Protection Authority v Caltex Refineries NSW Pty Limited [2008] NSWLEC 194 PARTIES: PROSECUTOR:
DEFENDANT:
Environment Protection Authority
Caltex Refineries (NSW) Pty Limited
ABN 19 000 108 725FILE NUMBER(S): 50075 of 2007 CORAM: Lloyd J KEY ISSUES: Prosecution :- contravention of a condition of an environment protection licence - emission of offensive odour - foreseeability - guilty plea - penalty LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 ss 3A, 21A, 22, 23
Criminal Procedure Act 1986
Protection of the Environment Operations Act 1997 ss 64(1), 241, 250(1)CASES CITED: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304
Cameron v The Queen (2002) 209 CLR 339
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Environment Protection Authority v Ballina Shire Council (2006) 148 LGERA 278
Environment Protection Authority v BHP Steel (AIS) Pty Ltd [1999] NSWLEC 197
Environment Protection Authority v BHP Steel (AIS) Pty Ltd (2004) 132 LGERA 213
Environment Protection Authority v Nalco Australia Pty Ltd [2007] NSWLEC 831
Environment Protection Authority v Sydney Water Corporation Ltd (1999) 102 LGERA 232
Environment Protection Authority v Timber Industries Ltd [2001] NSWLEC 25
Veen v The Queen (No.2) (1988) 164 CLR 465
R v Olbrich (1999) 199 CLR 270
R v Thompson; R v Houlton (2000) 49 NSWLR 383DATES OF HEARING: 27 May 2008
DATE OF JUDGMENT:
4 July 2008LEGAL REPRESENTATIVES: PROSECUTOR:
T G Howard (barrister)
SOLICITOR:
Gordon Plath
Environment Protection AuthorityDEFENDANT:
C J Leggat SC
SOLICITORS:
Freehills
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Lloyd J
Friday, 4 July 2008
1 HIS HONOUR : Caltex Refineries (NSW) Pty Limited has pleaded guilty to an offence under s 64(1) of the Protection of Environment Operations Act 1997 (“the Act”) in that it breached a condition of an environmental protection license.
2 The offence relates to an odour incident which took place between about 23 and 29 December 2006 inclusive (the “incident period”) at the Caltex oil refinery at No. 2 Solander Street, Kurnell in New South Wales. The odour incident occurred because Caltex failed to operate the plant in a proper and efficient manner in breach of condition O2.1 of the environment protection license No. 837, which prescribes:
a) must be maintained in a proper and efficient condition; and
All plant and equipment installed at the Premises or used in connection with the licensed activity:
b) must be operated in a proper and efficient manner
3 Caltex has pleaded guilty to the offence at the first mention of the proceedings on 8 February 2008.
4 The maximum penalty for an offence under s 64(1) of the Act was increased from $250,000 to $1,000,000 in the case of a corporation on 1 May 2006. The question for determination is the appropriate penalty for this offence in all the circumstances.
The Facts
The License
5 The Caltex refinery…
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- Case
- [2008] NSWLEC 194
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether the defendant had indeed allowed weeds to grow on its property and subsequently spread to the nature reserve. A further issue was whether the defendant had contravened the relevant provision of the Act, and if so, what penalties should be imposed. The court also needed to consider the appropriate use of any fines levied under section 250(1)(e) of the Act.
The court found that the defendant had allowed weeds to grow on its property and that these weeds had spread to the nature reserve, causing harm to the environment. The court concluded that the defendant had contravened the relevant provision of the Act. In terms of penalties, the court ordered the defendant to pay a fine of $78,000 to the Parks and Wildlife Group of the Department of Environment and Climate Change, to be used for the implementation of the Weed Management Strategy for Towra Point Nature Reserve. The court also ordered the defendant to pay the prosecutor's costs. The exhibits were to be returned to the defendant.
In summary, the court found the defendant guilty of contravening the Protection of the Environment Operations Act 1997 and imposed penalties, including a fine and payment of the prosecutor's costs. The fine was to be used for the implementation of the Weed Management Strategy for Towra Point Nature Reserve.
Orders
Orders of the court
1. The defendant is convicted of the offence as charged.
2. Pursuant to section 250(1)(e) of the Act, the defendant pay the Parks and Wildlife Group of the Department of Environment and Climate Change the amount of $78 000 to be used for the implementation of the Weed Management Strategy for Towra Point Nature Reserve.
3. The defendant must pay the prosecutor’s costs, in accordance with Chapter 4, Part 5 of the Criminal Procedure Act 1986.
4. The exhibits may be returned.
I hereby certify that the preceding 73 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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