Environment Protection Authority v Camberwell Coal Pty Ltd

[1999] NSWLEC 193

Land and Environment Court

of New South Wales

CITATION:

Environment Protection Authority v Camberwell Coal Pty Ltd [1999] NSWLEC 193

PARTIES

PROSECUTOR
Environment Protection Authority

DEFENDANT
Camberwell Coal Pty Ltd

NUMBER:

50013 of 1999

CORAM:

Cowdroy J

KEY ISSUES:

Environmental Offences :- Noise control - breach of licence condition limiting blasting - 'environment' as defined includes buildings for the purposes of assessment of damage pursuant to s 9(a) of the Environmental Offences and Penalties Act 1989

LEGISLATION CITED:

Environmental Offences and Penalties Act 1989 s 9
Pollution Control Act 1970 17D(9)

DATES OF HEARING:

08/17/1999

DATE OF JUDGMENT DELIVERY:

08/27/1999

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr D Samuels (Solicitor)

SOLICITORS
Environment Protection Authority

DEFENDANT
Mr P Rigg (Solicitor)

SOLICITORS
Deacons Graham & James

JUDGMENT:

Background

1. By summons class five issued on 22 March 1999 the prosecutor charges Camberwell Coal Pty Ltd (“the defendant”) that it committed an offence on 27 March 1998 against the Environmental Offences and Penalties Act 1989 (“the EOP Act”) by contravening a condition of licence no 3390 granted under the Pollution Control Act 1970 (the “PC Act”). The defendant has pleaded guilty to such charge.

2. The condition breached was condition A8 which provides:-

Noise emanating from blasting operation must not exceed an over pressure level of 115 dB (linear peak) when measured at any residence outside the zone of affectation (as specified in the Development Consent).

Up to 5 per cent of the total number of blasts may exceed the 115 dB (linear peak) value provided the over pressure level at the above location does not exceed 120 dB (linear peak) at any time.

3. On 27 March 1998 at 12.15 pm a blast was fired at the defendant’s mine. At three monitoring sites located beyond the zone of affectation and near residences of Alan Noble, Shane Hardy and David Proctor, over pressure levels of 1 to 5.52, 1 to 1.56 and 1 to 1.93 dB respectively were recorded. Previously five infringement notices against the defendant had been issued for exceeding the 120 dB (linear) condition of its licence.

4. The defendant has suggested to the prosecutor by letter dated 1 October 1998 that the breach resulted from extra explosive being added to several holes which apparently blew out causing a phenomena known as “ blast wave reinforcement ”. No further particulars were provided on that occasion. Subsequently the defendant has acknowledged there was no record of the depth of each hole referred to, nor was there any record of the actual amount of explosive placed into each hole. According to the evidence of the prosecutor it is common practice to use a loading sheet to estimate the volume of explosive to be placed in each hole prior to firing. Such record would assist in minimising the risk of the phenomena which is suspected to be the cause of the offence.

5. Evidence has been obtained from the owners of two of the residences in close proximity namely Alan Charles Noble and Shane Victor Hardy concerning the blast on 27 March 1998. Mr Hardy has provided an affidavit which alleges that all the cupboard doors in his house were opened, photos were turned around and one large photo had fallen off a wall and broken. Mr Hardy has claimed that bathroom tiles in his residence cracked in consequence of the explosion. He said that cracks in the gyprock sheeting have occurred in his house since blasting was undertaken by the defendant. Similarly Mr Noble experienced cupboard doors being forced open with articles falling out on various occasions since blasting by the defendant commenced in 1992. On 27 March 1998 he heard the loud blast and found tiles had fallen off the walls of his bathroom and kitchen and an asbestos pipe used for irrigation purposes had broken.

Penalty

6. Section 9(a) of the EOP Act requires the court to consider:-

The extent of the harm caused or likely to be caused to the environment by the commission of the offence.

Section 4(1) of the EOP Act defines the term “environment” inter alia, as follows:-

environment includes all aspects of the surroundings of human beings, including:

(a) the physical factors of those surroundings, such as the land, the waters and the atmosphere, and

(b) the biological factors of those surroundings, such as the animals, plants and other forms of life, and

(c) the aesthetic factors of those surroundings, such as their appearance, sounds, smells, tastes and textures.

7. The defendant submits that such definition does not include buildings. If regard is directed only to the matters contained in s 4(1)(a)(b)(c) the definition suggests that only the natural aspects of the environment are to be considered. In such event the defendant’s submission may have force. However, to do so would exclude the effect of the introductory words of the definition which refer to “ all aspects of the surroundings of human beings ”. The definition includes those matters incorporated in the sub-paragraphs but they do not limit the much broader definition. The Court can consider whether harm has been occasioned to buildings occupied by human beings or whether there was the likelihood of such harm.

8. The defendant has adduced evidence from a builder which suggests that damage allegedly sustained to the residence of Mr Hardy was not caused in consequence of the events of 27 March 1998 but rather has resulted from general deterioration and poor maintenance or construction. Although the oral evidence adduced from Mr Noble and Mr Hardy strongly suggests that damage, namely cracking to wall tiles and internal walls resulted from the blast, further investigation would be required before the court could make any finding.

9. The prosecutor does not seek any order for restoration or compensation arising out of the offence pursuant to s 14 of EOP Act. The court does however, make the finding that harm was likely to be caused to the environment namely the residences of Mr Hardy and Mr Noble arising out of the offence.

10. Pursuant to s 9(b) of the EOP Act the court is required to consider whether practical measures might have been taken to prevent, control, abate or mitigate the harm. The most likely cause is being addressed but it is of concern that the defendant which undertakes approximately 200 blasts per year was not sufficiently competent to avoid the exceedence. The court also takes into account the fact that there has been a history of complaints directed to its blasting operations. It was foreseeable that poor blasting techniques could cause or were likely to cause harm if the licence conditions were breached.

11. As to the requirements of s 9(d) of the EOP Act it was obvious the defendant had control of the operations and the provisions of s 9(e) thereof are irrelevant.

Mitigation

12. Since the occurrence the defendant has engaged a consultant specialising in blasting procedures to investigate the cause. Such investigations have not conclusively proved the cause of the excessive blast. The expert’s affidavit states:-

Not withstanding these investigations, some uncertainty remains regarding the specific cause or combination of factors leading to the incident on 27 March 1998. Possible causes include the existence of an unknown geological feature or the occurrence of a relatively recently understood phenomenon known as blast wave front reinforcement . This phenomenon arises as a result of the combining and reinforcement of air overpressure waves from a number of separate blast holes.

13. The defendant has acknowledged that its procedures required alteration and measures have now been implemented to avoid a repetition. A sum of $130,000 has been allocated by the defendant to appoint a new Drill and Blast Co-ordinator. It has purchased a new computer based system to analyse the potential for blast wave front reinforcement from blasts. Such system will permit blasts to be designed to avoid the blast phenomena.

14. The defendant has pleaded guilty at an early stage of the proceedings and has co-operated with the prosecutor. In accordance with the principle in R v Winchester (1992) 58 A Crim Reports 345 at 350 this factor is to be taken into consideration in assessment penalty. Such principle has been repeatedly affirmed: see for example Neal v The Queen (1982) 149 CLR 305 at 315.

15. The Court notes the defendant has agreed to engage a consultant to be chosen in consultation with the prosecutor on a without prejudice basis and at its expense. The expert will assess the cause of the alleged damage to the nearby residences. On a without prejudice basis the defendant has also agreed to meet the cost of any repairs to the residences of Messrs Noble and Hardy in the event that expert opinion concludes the harm was caused by the defendant’s blasting. Such a gesture justifies consideration in respect of the penalty.

16. There have been no previous convictions of the defendant for any environmental offence and it has been conducting its operations since approximately 1992. The maximum penalty is $30,000 for the offence as charged. The court takes into consideration the above factors and mitigates the fine accordingly.

Orders

17. The Court orders:-

1. The defendant is convicted of the offence charged.

2. The defendant is fined the sum of $14,000.

3. The defendant is to pay the prosecutor’s costs agreed in the sum of $7,000.

4. The exhibits be returned.