Environment Protection Authority v Chillana Pty Ltd - [2010] NSWLEC 255

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Chillana Pty Ltd [2010] NSWLEC 255

PARTIES:
PROSECUTOR
Environment Protection Authority
DEFENDANT
Chillana Pty Ltd

FILE NUMBER(S): 50040 of 2009

CORAM: Sheahan J

KEY ISSUES: PROSECUTION :- Plea of guilty - water pollution - actual and likely environmental harm - sentencing principles - s 250 orders instead of fine - investigation expenses and costs - capacity to pay

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Fines Act 1996
Protection of the Environment Operations Act 1997

CASES CITED: Aref Rahme v R (1989) 43 A Crim R 81
Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Environment Protection Authority v Ecolab Pty Ltd (2002) 123 LGERA 269
Environment Protection Authority v Rail Infrastructure Corporation [2002] NSWLEC 37; 119 LGERA 409
Environment Protection Authority v Cargill Australia Limited [2007] NSWLEC 337
Environment Protection Authority v Nalco Australia Pty Ltd [2007] NSWLEC 831
Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280;163 LGERA 71
Environment Protection Authority v Nowra Chemical Manufacturers Pty Ltd [2008] NSWLEC 187
Environment Protection Authority v CSR Building Products Ltd [2008] NSWLEC 224
Environment Protection Authority v Pal [2009] NSWLEC 35
Environment Protection Authority v Albury City Council [2009] NSWLEC 169
Environment Protection Authority v Ramsay Food Processing Pty Ltd [2010] NSWLEC 23
Environment Protection Authority v Straits (Hillgrove) Gold Pty Limited [2010] NSWLEC 114
Environment Protection Authority v George Weston Foods Ltd [2010] NSWLEC 120
Environment Protection Authority v Ramsay Food Processing Pty Ltd (No.2) [2010] NSWLEC 175
Georgopolous v R [2010] NSWCCA 246
Markarian v The Queen [2005] HCA 25, 228 CLR 357
Minister for Planning v Hunter Quarries Pty Ltd [2010] NSWLEC 246
R v McNaughton [2006] NSWCCA 242, 66 NSWLR 566
R v Olbrich [1999] HCA 54; 199 CLR 270
R v Storey [1998] 1 VR 359
R v Thomson [2000] NSWCCA 309; 49 NSWLR 383
State Pollution Control Commission v White Wings Limited (unreported, Bignold J, Land and Environment Court, 1 November 1991)
Veen v R (1979) 143 CLR 458

DATES OF HEARING: 23 June 2010, 24 June 2010, and 25 June 2010 (written submissions re proposed orders)

DATE OF JUDGMENT:
8 December 2010

LEGAL REPRESENTATIVES:
PROSECUTOR
Ms M England, Barrister
SOLICITORS
Department of Environment, Climate Change and Water
DEFENDANT
Mr T Howard, Barrister
SOLICITORS
Minter Ellison

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

8 December 2010

50040 of 2009 Environment Protection Authority v Chillana Pty Ltd
JUDGMENT

Introduction

1 His Honour: The defendant company has pleaded guilty to an offence against s 120(1) of the Protection of the Environment Operations Act 1997 (“POEO Act”) in respect of polluting waters, namely Salty Creek and the Castlereagh River, with untreated “abattoir effluent”, from the premises apparently leased by the defendant-owned Bunganbah Meat Co, between 7 and 13…

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: [2010] NSWLEC 255
Decision Date: 8 December 2010

CaseChat Overview and Summary

The defendant, Chillana Pty Ltd, pleaded guilty to a charge of water pollution under s 120(1) of the Protection of the Environment Operations Act 1997. The court had to decide the appropriate penalty and orders to be imposed on the defendant. The court considered the extent of the environmental harm caused by the pollution, the defendant’s culpability, and its capacity to pay. The court also had to consider the principles of sentencing and the precedents set by other similar cases. The court found that the defendant had caused actual harm to Salty Creek, but not lasting harm. The court also found that the defendant had taken steps to mitigate the harm and had shown remorse. The court decided to impose a penalty of $60,000, to be paid in instalments over two years and five months, and to be applied to a restoration and enhancement project on the Castlereagh River. The court also ordered the defendant to pay the prosecutor’s investigation costs and legal costs, and to publish a notice of its conviction in two local newspapers. The court took into account the defendant’s financial difficulties and its impact on the local community.

Orders