Environment Protection Authority v Centennial Newstan Pty Ltd - [2006] NSWLEC 732

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Centennial Newstan Pty Ltd [2006] NSWLEC 732

PARTIES:
PROSECUTOR
Environment Protection Authority
DEFENDANT
Centennial Newstan Pty Ltd

FILE NUMBER(S): 50010 of 2006

CORAM: Preston CJ

KEY ISSUES: Environmental Offences :- sentencing - pollute waters - overflow of sediment - laden waters into creek and bay - low environmental harm - conduct resulting in offence deliberate and negligent - harm foreseeable - practical measures could have been taken to prevent harm - control over causes - offence of medium objective seriousness - no prior convictions - prior good character - early plea of guilty - contrition and remorse - assistance to authorities - payment of prosecutor's costs - appropriate to make alternative order in lieu of fine - order to pay specified amount for purposes of a project for the restoration of the environment and publication order

LEGISLATION CITED: Protection of the Environment Operations Act 1997 s 120(1), s 193, s 241(1), s 241(1)(a)-(e), s 244(2)-(3), s 250, s 250(1)(a), (c), (e)

CASES CITED: Camilleri's Stockfeeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683;
Environment Protection Authority v Barnes [2006] NSWCCA 246 (17 August 2006) ;
Environment Protection Authority v Simplot Australia Pty Limited [2001] NSWLEC 264 (25 October 2001);
Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419 (10 July 2006)

DATES OF HEARING: 30/10/2006
31/10/2006

EX TEMPORE JUDGMENT DATE: 10/31/2006

LEGAL REPRESENTATIVES: PROSECUTOR
Ms L Body (solicitor)
SOLICITORS
Environment Protection Authority
DEFENDANT
Ms S Duggan (barrister)
SOLICITORS
Sparke Helmore Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

31 OCTOBER 2006

50010 OF 2006

ENVIRONMENT PROTECTION AUTHORITY V CENTENNIAL NEWSTAN PTY LIMITED

JUDGMENT

1 HIS HONOUR: Centennial Newstan Pty Limited undertakes coalmining at Fassifern in the lower Hunter Valley. One of its coalmining activities is auger mining within the Newstan mining lease area. Auger mining has disturbed a sizeable area of previously naturally vegetated land. Soil and water management measures were required by the mining approval for the auger mining to be implemented in accordance with an approved soil and water management plan. The measures in the approved plan were not implemented. Instead wholly different measures were undertaken by Centennial Newstan. No expert advice or approval from the Department of Primary Industries was sought for the departure from the approved measures.

2 Storm events occurred between 10 to 13 February 2005. They were not unusual. Even the most intense rainfall event was only of an intensity and duration that could be expected to occur every two to five years in the Fassifern area. The storm and water measures implemented by Centennial Newstan were inadequate to control erosion and runoff from the site. The catchment dams overtopped, sediment-laden waters discharged into a creek called LT Creek and then into Fennell Bay, a part of Lake Macquarie. The physical conditions of the creek and Fennell Bay were affected by the turbid waters. Organisms would probably have responded biologically…

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: [2006] NSWLEC 732
Decision Date: 31/10/2006

CaseChat Overview and Summary

The Environment Protection Authority brought a prosecution against Centennial Newstan Pty Ltd for an offence under the Protection of the Environment Operations Act 1997. The defendant, a company involved in the construction industry, was alleged to have contravened an environmental approval by causing erosion and sediment to enter a watercourse. The matter was heard in the Local Court of New South Wales.

The primary legal issue before the court was whether the defendant had indeed breached the environmental approval and, if so, what penalties should be imposed. The court needed to consider the nature and extent of the contravention, the defendant’s culpability, and the appropriate remedial actions. The court also had to determine the appropriate fines and publication requirements under the Act.

The court found that the defendant had contravened the environmental approval by causing erosion and sediment to enter the watercourse, which constituted an offence under the Act. The court emphasised the seriousness of the breach and the need for deterrence and rehabilitation. In imposing penalties, the court considered the environmental harm caused, the defendant’s culpability, and the need to ensure compliance with environmental laws in the future. The court ordered the defendant to pay a substantial fine and to undertake specific remedial actions, including the publication of a notice summarising the conviction. Additionally, the court ordered the defendant to pay the prosecutor’s legal costs.

Orders

Orders of the court

1. The defendant is convicted of the offence as charged.

2. The defendant, pursuant to s 250(1)(e) of the

Protection of the Environment Operations Act 1997, is

ordered to pay the sum of $50,000 to the Hunter-Central

Rivers Catchment Management Authority to be held by that

authority for the purposes of undertaking the works

specified in the project brief - LT creek bushland

rehabilitation and in-stream works.

3. The defendant, at its expense, and pursuant to s

250(1)(a) of the Protection of the Environment

Operations Act 1997 must:

(a) within 14 days of today publish the contents

of annexure A in the first 12 pages of the early

general news section of the Sydney Morning Herald

at a minimum size of at least 137 millimetres in

width;

(b) within 14 days of today publish the contents

of annexure A in the first 5 pages of the

Newcastle Herald at a minimum size of one-quarter

of a page; and

costs of the proceedings agreed in the sum of

$28,000.

[Annexure A is a publications notice summarising the conviction and orders]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Environment Protection Authority v Centennial Newstan Pty Ltd [2006] NSWLEC 732
PARTIES:	PROSECUTOR Environment Protection Authority DEFENDANT Centennial Newstan Pty Ltd
FILE NUMBER(S):	50010 of 2006
CORAM:	Preston CJ
KEY ISSUES:	Environmental Offences :- sentencing - pollute waters - overflow of sediment - laden waters into creek and bay - low environmental harm - conduct resulting in offence deliberate and negligent - harm foreseeable - practical measures could have been taken to prevent harm - control over causes - offence of medium objective seriousness - no prior convictions - prior good character - early plea of guilty - contrition and remorse - assistance to authorities - payment of prosecutor's costs - appropriate to make alternative order in lieu of fine - order to pay specified amount for purposes of a project for the restoration of the environment and publication order
LEGISLATION CITED:	Protection of the Environment Operations Act 1997 s 120(1), s 193, s 241(1), s 241(1)(a)-(e), s 244(2)-(3), s 250, s 250(1)(a), (c), (e)
CASES CITED:	Camilleri's Stockfeeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683; Environment Protection Authority v Barnes [2006] NSWCCA 246 (17 August 2006) ; Environment Protection Authority v Simplot Australia Pty Limited [2001] NSWLEC 264 (25 October 2001); Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419 (10 July 2006)
DATES OF HEARING:	30/10/2006 31/10/2006
EX TEMPORE JUDGMENT DATE:	10/31/2006
LEGAL REPRESENTATIVES:	PROSECUTOR Ms L Body (solicitor) SOLICITORS Environment Protection Authority DEFENDANT Ms S Duggan (barrister) SOLICITORS Sparke Helmore Lawyers