Environment Protection Authority v CollexPty Ltd - [2001] NSWLEC 177

Reported Decision: 115 LGERA 337

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v CollexPty Ltd [2001] NSWLEC 177

PARTIES:
PROSECUTOR:
Environment Protection Authority
DEFENDANT:
Collex Pty Ltd

FILE NUMBER(S): 50032 of 2001

CORAM: Bignold J

KEY ISSUES: Environmental Offences :- Breach of condition of Licence-Plea of Guilty-Mitigating factors-Penalty.

LEGISLATION CITED: Protection of the Environment Operations Act 1997

CASES CITED: Environment Protection Authority v Norco Co-operative Limited (2000) 108 LGERA 137;
Genkem Pty Ltd v Environment Protection Authority (1994) 85 LGERA 197;
State Pollution Control Commission v Broken Hill Prop. Corp Ltd (No 1) (1991) 74LGRA 351

DATES OF HEARING: 12 June 2001

DATE OF JUDGMENT:
08/06/2001

LEGAL REPRESENTATIVES:

PROSECUTOR:
Mr M Kelly, Solicitor
SOLICITORS
Environment Protection Authority
DEFENDANT:
Mr B Preston SC
SOLICITORS
Baker and McKenzie

JUDGMENT:

IN THE LAND AND

Matter No. 50032 of 2001

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

6 August 2001

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

COLLEX PTY LIMITED

Defendant

JUDGMENT

Bignold J:

1. The Defendant has pleaded guilty to a charge of an offence against the Protection of the Environment Operations Act 1997, s 64(1) (PEO Act) in that on or about 13 March 2000 at Camellia, it was the holder of an environmental protection licence in force under that Act when a condition of that licence was contravened.

2. The PEO Act, s 64(1) relevantly provides as follows:
(1) Offence

If any condition of a licence is contravened by any person, each holder of the licence is guilty of an offence.

Maximum penalty (except where it is an offence relating exclusively to noise):

· in the case of a corporation—$250,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or

· in the case of an individual—$120,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.

3. The offence so created is a status offence in that it imposes liability for a contravention of a condition of licence on “the holder of the licence” in respect of which liability subsection (2) provides a composite statutory defence (to be established by the holder of the licence). The offence is classified as a Tier 2 offence: vide s 114(2) and is an offence of strict liability: cf State Pollution Control Commission v Broken Hill Prop. Corp Ltd (No 1) (1991) 74LGRA 351.

4. The relevant particulars of the offence (as endorsed on the Summons) are as follows:

(i.) the relevant licence held by the Defendant is Licence No 0005418 issued pursuant to the Pollution Control Act 1970 in force for one year from 17 April 1999;

(ii.) the relevant condition of the Licence is Condition S2 which provides as follows:

All activities carried out on the premises must be carried out in a competent manner

In this condition activities includes:

(a) the processing, handling, movement and storage of materials and substances; and
(b)…

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.

Continue reading Environment Protection Authority v CollexPty Ltd

Details

AGLC: Environment Protection Authority v CollexPty Ltd [2001] NSWLEC 177
Case: [2001] NSWLEC 177
Decision Date: 08/06/2001

CaseChat Overview and Summary

The defendant, Collex Pty Ltd, pleaded guilty to a charge of contravening a condition of its environmental protection licence under the Protection of the Environment Operations Act 1997, specifically by failing to handle and store a load of caustic soda solution in a competent manner. The Court heard the matter and considered the appropriate penalty for the offence. The Court assessed the gravity of the offence as being on the lower end of the spectrum, given the absence of evidence of harm to the environment and the mitigating factors presented by the defendant. The mitigating factors included the defendant's first-time offence, genuine contrition, early guilty plea, active cooperation with the EPA's investigation, and subsequent upgrades to its resources and stormwater system to prevent future occurrences. The Court imposed a penalty of $30,000, representing 12 per cent of the maximum penalty, and ordered the defendant to pay the prosecutor's reasonable costs in the sum of $10,500. The Court also made orders for the return of exhibits other than the Statement of Agreed Facts.

Orders