Environment Protection Authority v Collex Pty Ltd - [2002] NSWLEC 196

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Collex Pty Ltd [2002] NSWLEC 196

PARTIES:
PROSECUTOR
Environment Protection Authority
DEFENDANT
Collex Pty Ltd
(ACN 051 316 584)

FILE NUMBER(S): 50026 of 2002

CORAM: Pain J

KEY ISSUES: Prosecution :- plea of guilty - pollution of waters - penalty - whether the Court can consider likely harm to a creek in the absence of evidence that the pollutant reached the creek - whether s 257 of the Protection of the Environment Operations Act 1997 creates a duty not to allow polluted water to escape from premises and enter other waters - matters in mitigation of penalty

LEGISLATION CITED: Clean Waters Act 1970 s 16
Protection of the Environment Operations Act 1997 s 120(1), s 123(a), s 241, s 257

CASES CITED: Axer Pty Ltd v Environment Protection Authority (2001) 113 LGERA 357;
Cameron v The Queen (2002) 76 ALJR 382;
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683;
Dyer v Borg & Anor (Stein J, NSWLEC, 28 April 1988, unreported);
Dyer v Borg & Anor (Stein J, NSWLEC, 5 September 1989, unreported);
Environmental Protection Authority v Collex Pty Ltd (2001) 115 LGERA 337;
Environment Protection Authority v Great Southern Energy (1999) 110 LGERA 254;
Environment Protection Authority v Pioneer Road Services Pty Ltd (1995) 86 LGERA 52;
Environment Protection Authority v Rail Infrastructure Corporation (2002) 119 LGERA 409;
Hoare v The Queen (1989) 167 CLR 348;
R v Ireland (1987) 49 NTR 10;
R v Sharma (2002) 54 NSWLR 300;
R v Thomson; R v Houlton [2000] NSWCA 309;
State Pollution Control Commission v Kelly (Hemmings J, NSWLEC, 21 June 1991, unreported);
State Pollution Control Commission v White Wings Limited (Bignold J, NSWLEC, 1 November 1991, unreported);
Veen v The Queen [No. 2] (1988) 164 CLR 465

DATES OF HEARING: 02/09/2002

DATE OF JUDGMENT:
11/22/2002

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr G Plath (solicitor)
SOLICITORS
Environment Protection Authority
DEFENDANT
Mr BJ Preston SC
SOLICITORS
Collex Pty Ltd

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

50026 of 2002

Pain J

22 November 2002

Environment Protection Authority

Prosecutor

Collex Pty Ltd

(ACN 051 316 584)

Defendant

Judgment

Introduction

1 The Defendant has pleaded guilty to a charge of polluting waters under s 120(1) of the Protection of the Environment Operations Act 1997 (PEO Act). The summons charges the Defendant with the pollution of waters at or near Riverstone, NSW on or about 29 March 2001. The waters the subject of the offence is a pond located inside the Defendant’s property at 127 Burfitt Road, Schofields. The pond is described in the summons as a pond by the side of Neville Road, Riverstone, near the intersection with Carnavaron Road Riverstone (the Pond).

2 Section 120(1) of the PEO Act provides that: “A person who pollutes any waters is guilty of an offence”. The Defendant admits all the elements of the offence by pleading…

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: [2002] NSWLEC 196
Decision Date: 11/22/2002

CaseChat Overview and Summary

The defendant, Collex Pty Ltd, pleaded guilty to polluting waters at or near Riverstone, NSW on or about 29 March 2001. The waters in question were a pond located inside the defendant's property. The court was required to decide on the penalty to be imposed, considering the extent of harm caused or likely to be caused to the environment, the practical measures that may be taken to prevent, control, abate or mitigate that harm, the reasonable foreseeability of the harm caused or likely to be caused, the extent to which the person who committed the offence had control over the causes that gave rise to the offence, and other relevant matters.

The court found that there was no evidence of actual harm caused to the environment as a result of this incident. The court also found that there was no evidence to show that the pollutant had reached Eastern Creek, and there was no evidence as to the actual flow rate of the pollutant in the unnamed channel and how far it went along that channel. Therefore, the court could not be satisfied beyond reasonable doubt that any pollutant reached the Creek or was likely to reach it. The court further found that the likely harm caused by the escaping leachate was foreseeable, and there were measures that the defendant could have put in place to prevent the actual incident from occurring.

Considering all the circumstances of the offence, the court found that the offence was properly viewed as being in the low range for offences of this type and that a penalty of 10%, or $25,000, was appropriate. However, the court also took into account the mitigating circumstances, such as the defendant's guilty plea, prompt and effective action in relation to the incident, contrition and remorse, full cooperation with the prosecutor in relation to the prosecution, and agreement to pay the prosecutor's costs in the amount of $9,500. The court considered that the defendant's penalty should be discounted by a total of 40%, and a fine of $15,000 was appropriate.

The court made the following orders: 1. The defendant is convicted of the offence with which it is charged. 2. The defendant is fined the sum of $15,000. 3. The defendant is to pay the costs of the prosecutor in the amount of $9,500. 4. The exhibits may be returned.

Orders