Environment Protection Authority v Cargill Australia Limited (No 2)

[2004] NSWLEC 421

Land and Environment Court

of New South Wales

CITATION:	Environment Protection Authority v Cargill Australia Limited (No 2) [2004] NSWLEC 421
PARTIES:	PROSECUTOR Environment Protection Authority DEFENDANT Cargill Australia Limited
FILE NUMBER(S):	50121 of 2004
CORAM:	Pain J
KEY ISSUES:	Prosecution :- Form of order for restoration or enhancement of the environment
LEGISLATION CITED:	Protection of the Environment Operations Act 1997 s 250(1)(c)
CASES CITED:
DATES OF HEARING:	20/07/2004
EX TEMPORE JUDGMENT DATE :	07/20/2004
LEGAL REPRESENTATIVES:	PROSECUTOR Ms S Mahoney (solicitor) SOLICITOR Environment Protection Authority DEFENDANT Mr N Brunton (solicitor) SOLICITOR Henry Davis York

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

20 July 2004

50121 of 2003 Environment Protection Authority v Cargill Australia Limited (No 2)

JUDGMENT

1 Her Honour: On 4 June 2004 I gave a judgment in these proceedings in which I asked the parties to provide me with a re-drafted form of an order which the Defendant submitted I should make under s 250(1) of the Protection of the Environment Operations Act 1997 (“the PEO Act”). The parties are before me today in relation to the final form of the draft s 250(1) order contained in par 1(a) of Exhibit D.

2 I have before me a proposal from the Defendant which is somewhat different to that put to me on 4 June 2004. This proposal provides for the Defendant to provide fencing, labour and to plant at least 4500 trees on land near the Bomen Industrial Estate in the Wagga Wagga area, which is an area close to the locality where the offence the subject of these proceedings took place. The proposal essentially requires the Defendant to pay $32,000 to Wagga Wagga City Council (“the Council”), which will be the Defendant’s contractor, so that the Council will carry out the work on the Defendant’s behalf.

3 I think it is appropriate that I make this order under s 250(1)(c) of the PEO Act and, accordingly, I am ordering the Defendant to carry out a specified project for the restoration and enhancement of the environment in a public place. Further, I consider that the proposal will result in a public benefit, as provided for under s 250(1)(c). Given that it is part of a wider program of tree planting which the Council wishes to undertake in the area of the city of Wagga Wagga, I think that there is a clear public benefit in this volume of trees being planted in this location. It also appears to me that there is a public benefit as I am informed that the Council has an ongoing maintenance project so the Council will care for the trees once planted. Given the above, I think there is benefit to the community in the initial tree planting being carried out in accordance with the proposal.

4 I will make the orders sought by the Defendant, as amended in order 1 to show that the planting of at least 4500 trees will take place and as amended in order 5 so that the Defendant shall advise the Court and the Prosecutor within seven days of completion of the project or otherwise the matter is to be re-listed before me on three days notice.

5 I made orders on costs previously so that should resolve the matter at this stage.

Orders

6 The Court makes the following orders:

1. The Defendant shall ensure the carrying out of the planting of at least 4,500 trees along a road reserve near the Bomen Industrial Estate in Wagga Wagga shown on the plan attached hereto and marked “A”.
2. The tree planting shall include a variety of tree species set out in the list attached hereto and marked “B”.
3. The Defendant shall spend an amount of $32,000 on the tree planting project.
4. The Defendant shall ensure the tree planting is carried out prior to 30 May 2005.
5. The Defendant shall advise the Court and the Prosecutor in writing within 7 days of completion of the project or otherwise relist the matter before Pain J on 3 days notice.