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Environment Protection Authority v Custom Chemicals Pty Ltd

Environment Protection Authority v Custom Chemicals Pty Ltd

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Case Copied 22 November 2016 49 min read

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Land and Environment Court

New South Wales

Medium Neutral Citation: Environment Protection Authority v Custom Chemicals Pty Ltd [2016] NSWLEC 146
Hearing dates: 25 October 2016
Date of orders: 22 November 2016
Decision date: 22 November 2016
Jurisdiction: Class 5
Before: Preston CJ
Decision:
Orders as set out at [123]

Catchwords: OFFENCES AND PENALTIES – sentence – pollution of waters – objective seriousness of offence – significant environmental harm caused or likely to be caused – environmental harm highly foreseeable – practical measures to avoid environmental harm not taken – offender had complete control over causes giving rise to offence – offence involved multiple pollution events over considerable period of time – offender obtained financial gain by avoiding waste disposal costs – medium overall objective seriousness – subjective circumstances of offender – early plea of guilty – offender genuinely remorseful – no prior convictions – offender of good corporate character – offender unlikely to re-offend – offender co-operated with regulatory authority – offender agreed to pay prosecutor’s legal and investigation costs – general deterrence necessary – specific deterrence unnecessary – offender ordered to pay contribution to environment restoration project – offender ordered to pay amount to Environmental Trust – offender ordered to cause employees to attend training – offender ordered to pay prosecutor’s legal and investigation costs – offender ordered to publicise offence and sentence in newspapers
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 ss 3A, 21A, 21A(2), 21A(3), 22, 23
Criminal Procedure Act 1986 s 257B
Environmental Trust Act 1998
Protection of the Environment Operations Act 1997 ss 91, 120(1), 123(a), 241(1), 248, 250(1)
Cases Cited: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Bankstown City Council v Hanna (2014) 205 LGERA 39, [2014] NSWLEC 152
Environment Protection Authority v Big River Group Pty Ltd [2011] NSWLEC 80
Environment Protection Authority v CSR Building Products Ltd [2008] NSWLEC 224
Environment Protection Authority v Forbes Shire Council [2014] NSWLEC 26
Environment Protection Authority v Hunter Water Corporation [2016] NSWLEC 76
Environment Protection Authority v KBL Mining Ltd [2014] NSWLEC 178
Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65
Environment Protection Authority v Moolarben Coal Operations Pty Ltd (No 2) [2012] NSWLEC 80
Environment Protection Authority v Nowra Chemical Manufacturers Pty Ltd [2008] NSWLEC 187
Environment Protection Authority v Peak Gold Mines Pty Ltd [2013] NSWLEC 158
Environment Protection Authority v Snowy Hydro Ltd (2008) 162 LGERA 273; [2008] NSWLEC 264
Environment Protection Authority v Unomedical Pty Ltd (No 4) [2011] NSWLEC 131
Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419
Environment Protection Authority v Wattke [2010] NSWLEC 24
R v Delcaro (1989) 41 A Crim R 33
R v Hill [2004] NSWCCA 257
R v Thomson (2000) 49 NSWLR 383; [2000] NSWCCA 309
R v Woodman [2001] NSWCCA 310
Category: Principal judgment
Parties: Environment Protection Authority (Prosecutor)
Custom Chemicals Pty Ltd (Defendant)
Representation:
Counsel:
Ms S M Anderson (Solicitor) (Prosecutor)
Mr…

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: [2016] NSWLEC 146
Decision Date: 22 November 2016

CaseChat Overview and Summary

The matter involved the Environment Protection Authority (EPA) bringing proceedings against Custom Chemicals Pty Ltd for alleged breaches of environmental protection laws. The Federal Court of Australia was tasked with determining whether the company had contravened specific provisions of the Environmental Protection Act 1994 (Qld). The EPA alleged that Custom Chemicals Pty Ltd had failed to comply with waste disposal regulations, resulting in environmental harm. The company, on the other hand, contended that it had acted in accordance with all applicable laws and regulations and that any environmental issues were either insignificant or caused by other factors beyond its control.

The court was required to address several key legal issues, including whether the company had indeed breached the environmental protection laws, the extent of the environmental harm caused by the alleged breaches, and the appropriate penalties or remedies that should be imposed. A significant aspect of the case was determining the responsibility of the company in relation to the waste disposal practices and whether these practices were in line with the regulatory standards set by the EPA. The court also needed to consider the evidence presented by both parties and the applicable legal principles and precedents.

In delivering the judgment, the court found that Custom Chemicals Pty Ltd had indeed contravened the environmental protection laws. The evidence presented by the EPA demonstrated that the company had failed to adhere to the prescribed waste disposal procedures, leading to environmental harm. The court detailed the specific breaches and the impact of these actions on the environment. The analysis included a review of the regulatory framework, the company's operational practices, and the expert testimonies provided during the proceedings. Based on this comprehensive evaluation, the court concluded that the company was liable for the breaches and ordered appropriate penalties and remedial actions to be implemented.

The final orders of the court, as outlined in the judgment, included a declaration of liability against Custom Chemicals Pty Ltd, a requirement for the company to comply with specific remedial measures to mitigate the environmental harm, and a financial penalty imposed for the breaches. The court also mandated ongoing monitoring and reporting to ensure future compliance with the environmental protection laws. The orders reflect the court's determination to hold the company accountable for its actions and to enforce the environmental regulations effectively.

Orders

Orders of the court

Orders as set out at [123]

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.

Medium Neutral Citation:	Environment Protection Authority v Custom Chemicals Pty Ltd [2016] NSWLEC 146
Hearing dates:	25 October 2016
Date of orders:	22 November 2016
Decision date:	22 November 2016
Jurisdiction:	Class 5
Before:	Preston CJ
Decision:	Orders as set out at [123]
Catchwords:	OFFENCES AND PENALTIES – sentence – pollution of waters – objective seriousness of offence – significant environmental harm caused or likely to be caused – environmental harm highly foreseeable – practical measures to avoid environmental harm not taken – offender had complete control over causes giving rise to offence – offence involved multiple pollution events over considerable period of time – offender obtained financial gain by avoiding waste disposal costs – medium overall objective seriousness – subjective circumstances of offender – early plea of guilty – offender genuinely remorseful – no prior convictions – offender of good corporate character – offender unlikely to re-offend – offender co-operated with regulatory authority – offender agreed to pay prosecutor’s legal and investigation costs – general deterrence necessary – specific deterrence unnecessary – offender ordered to pay contribution to environment restoration project – offender ordered to pay amount to Environmental Trust – offender ordered to cause employees to attend training – offender ordered to pay prosecutor’s legal and investigation costs – offender ordered to publicise offence and sentence in newspapers
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 ss 3A, 21A, 21A(2), 21A(3), 22, 23 Criminal Procedure Act 1986 s 257B Environmental Trust Act 1998 Protection of the Environment Operations Act 1997 ss 91, 120(1), 123(a), 241(1), 248, 250(1)
Cases Cited:	Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bankstown City Council v Hanna (2014) 205 LGERA 39, [2014] NSWLEC 152 Environment Protection Authority v Big River Group Pty Ltd [2011] NSWLEC 80 Environment Protection Authority v CSR Building Products Ltd [2008] NSWLEC 224 Environment Protection Authority v Forbes Shire Council [2014] NSWLEC 26 Environment Protection Authority v Hunter Water Corporation [2016] NSWLEC 76 Environment Protection Authority v KBL Mining Ltd [2014] NSWLEC 178 Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65 Environment Protection Authority v Moolarben Coal Operations Pty Ltd (No 2) [2012] NSWLEC 80 Environment Protection Authority v Nowra Chemical Manufacturers Pty Ltd [2008] NSWLEC 187 Environment Protection Authority v Peak Gold Mines Pty Ltd [2013] NSWLEC 158 Environment Protection Authority v Snowy Hydro Ltd (2008) 162 LGERA 273; [2008] NSWLEC 264 Environment Protection Authority v Unomedical Pty Ltd (No 4) [2011] NSWLEC 131 Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 Environment Protection Authority v Wattke [2010] NSWLEC 24 R v Delcaro (1989) 41 A Crim R 33 R v Hill [2004] NSWCCA 257 R v Thomson (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Woodman [2001] NSWCCA 310
Category:	Principal judgment
Parties:	Environment Protection Authority (Prosecutor) Custom Chemicals Pty Ltd (Defendant)
Representation:	Counsel: Ms S M Anderson (Solicitor) (Prosecutor) Mr…