Environment Protection Authority v Cargill Australia Limited - [2004] NSWLEC 334

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Cargill Australia Limited [2004] NSWLEC 334

PARTIES: PROSECUTOR
Environment Protection Authority
DEFENDANT
Cargill Australia Limited

FILE NUMBER(S): 50121 of 2004

CORAM: Pain J

KEY ISSUES: Prosecution :- Emission of offensive odour from livestock slaughtering rendering plant - Guilty plea - Appropriate penalty - Whether publication order appropriate - Whether order for restoration or enhancement of the environment appropriate

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999, s 21A, s 23
Protection of the Environment Operations Act 1997 s 129(1), s241, s 250(1)(a), s 250(1)(c)

CASES CITED: Camilleri Stockfeeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683;
Environment Protection Authority v Biosolids Management Pty Limited [2004] NSWLEC 90;
Environment Protection Authority v Burrangong Meat Processors [2003] NWSLEC 102;
Environment Protection Authority v Illawarra Coke Company Pty Limited (2002) 118 LGERA 451;
Environment Protection Authority v Incitec Limited [2003] NSWLEC 381;
Environment Protection Authority v Metalcorp Recyclers Pty Limited [2004] NSWLEC 14;
Environment Protection Authority v Nationwide Oil Pty Limited [2002] NSWLEC 201;
R v Sharma (2002) 54 NSWLR 301;
R v Thompson; R v Houlton (2000) 49 NSWLR 383

DATES OF HEARING: 02/06/2004

EX TEMPORE
JUDGMENT DATE : 06/04/2004

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr D Jordan
SOLICITOR
Environment Protection Authority
DEFENDANT
Mr B Preston SC
SOLICITORS
Henry Davis York

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

4 June 2004

50121 of 2003 Environment Protection Authority v Cargill Australia Limited

JUDGMENT

1 Her Honour: The Defendant in this matter is charged with an offence against s 129(1) of the Protection of the Environment Operations Act 1997 (“the PEO Act”). The Summons alleges that the Defendant caused the emission of an offensive odour, between 13 and 14 January 2003, from occupied premises at which a scheduled activity, being a livestock slaughtering rendering plant, was carried on under authority of a licence.

2 The Defendant has pleaded guilty to the offence and, accordingly, all the requisite legal elements in relation to the offence are taken to have been proved. I note that the maximum penalty applicable in this case is $250,000. The parties helpfully supplied to the Court a Summary of Agreed Facts and I note that the particular circumstances in relation to the offence are set out at par 11 – 17 as follows:

11. On 13 and 14 January 2003 odour created in the rendering process escaped from the premises. The odour was detected at several locations outside the premises by EPA officers while conducting an odour survey.

12. On 13 January 2003 EPA officers detected odour from the rendering process at eight locations in the vicinity of the premises. The distance between these locations and the premises ranged from approximately 500 metres to 2.5 kilometres. On a scale of 1 to 6 (the most intense odour being 6), the intensity of the odour ranged from 2 to 4. In relation to each of the locations at…

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: [2004] NSWLEC 334
Decision Date: 06/04/2004

CaseChat Overview and Summary

The defendant, Cargill Australia Limited, was charged with an offence under the Protection of the Environment Operations Act 1997 for causing the emission of an offensive odour from its livestock slaughtering rendering plant. The defendant pleaded guilty to the offence, which involved the emission of an offensive odour from its premises on 13 and 14 January 2003. The Court was required to consider a number of factors in determining the appropriate penalty, including the practical measures that could have been taken to prevent or mitigate the harm, the extent to which the defendant could reasonably have foreseen the harm caused, and the extent to which the defendant had control over the causes that gave rise to the offence. The Court found that there were practical measures that the defendant could have taken to prevent or mitigate the harm, but that the likelihood of re-occurrence was minimal. The Court also found that the defendant had control over the causes that gave rise to the offence, but that the need to upgrade and improve the defendant’s operations was recognised by the defendant and that the defendant was actively taking the necessary steps to enable that to occur. The Court determined that a penalty of $32,000 was appropriate, taking into account a number of mitigating factors, including the defendant’s early guilty plea, expression of remorse, and cooperation with the investigation. The Court also declined to make a publication order or an order for the defendant to carry out a specified project for the restoration or enhancement of the environment, finding that such orders were not warranted in the circumstances. The defendant was convicted of the offence and ordered to pay the prosecutor’s costs in the sum of $40,000.

Orders