Environment Protection Authority v Daryl McCarthy Constructions Pty Ltd - [2000] NSWLEC 223

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Daryl McCarthy Constructions Pty Ltd [2000] NSWLEC 223

PARTIES:
PROSECUTOR:
Environment Protection Authority
DEFENDANT:
Daryl McCarthy Constructions Pty Ltd

FILE NUMBER(S): 50101; 50102; 50103 of 1999

CORAM: Bignold J

KEY ISSUES: Environmental Offences :- polluting waters—wastes exceeding permitted level of non-filtrable residues—Mitigating factors—principle of totality.

LEGISLATION CITED: Environmental Offences and Penalties Act 1989
Clean Waters Act 1970, s 16(1)

CASES CITED: Environment Protection Authority v Norco Co-operative Limited, [2000] NSWLEC 35

DATES OF HEARING: 19 May 2000

EX TEMPORE
JUDGMENT DATE : 05/19/2000

LEGAL REPRESENTATIVES:

PROSECUTOR:
Mr S Simington, Solicitor
SOLICITORS
Environment Protection Authority
DEFENDANT:
Mr H Scotting, Barrister
SOLICITORS
Sutton and Byrne

JUDGMENT:

IN THE LAND AND Matter No . 50101, ENVIRONMENT COURT OF 50102 and 50103 of 1999

NEW SOUTH WALES Coram : Bignold J.

19 May 2000

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

DARRYL MCCARTHY CONSTRUCTIONS PTY LTD

Defendant

JUDGMENT

Bignold J:

1. The Defendant has pleaded guilty to three separate charges of an offence against the Environmental Offences and Penalties Act 1989, in that it did pollute waters contrary to the Clean Waters Act 1970, s 16(1).

2. The first offence occurred on or about 19 January 1999; the second offence occurred on or about 22 February 1999; and the third offence occurred on or about 30 June 1999. The offences all occurred at the same place, namely the waters of Tenterfield Creek when they were polluted, by virtue of the discharge from the Defendant's premises situated Sunnyside via Tenterfield, some 10 km removed from the township of Tenterfield, of waste containing non filtrable residues.

3. The Defendant operates at the aforesaid premises, a gravel manufacturing plant. The premises were licensed under the Pollution Control Act at the time the offences took place, and in terms of the conditions of licence it was permitted to discharge wastes from a drain leading from the waste water treatment ponds established on the Defendant's premises, into Tenterfield Creek. Condition W1 of Licence limited the volume of wastes discharged so that they would not exceed 400 kilolitres on any day.

4. Condition W1 also limited the wastes that might be so discharged by proscribing the discharge of waste which contained more than 150 milligrams per litre of non-filtrable residue.

5. The Court has had the benefit of a Statement of Agreed Facts which sets out the extent whereby the sampled waste waters discharging into Tenterfield Creek exceeded the licensed maximum. In the case of the first offence the laboratory result of the sample indicated non-filtrable residues of some 1100 milligrams per litre.

6. In the case of the second offence, the laboratory results of the sampled discharge waste indicated a level of non-filtrable residues of 2,000 milligrams per litre, and in the case of the third offence, the laboratory results of the sample discharge revealed a level of non-filtrable residues of some 800 milligrams per litre. It is apparent that each of the discharges…

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: [2000] NSWLEC 223
Decision Date: 05/19/2000

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the Environment Protection Authority prosecuted Daryl McCarthy Constructions Pty Ltd for three separate charges of polluting waters, in contravention of the Clean Waters Act 1970. The charges stemmed from the discharge of waste containing non-filtrable residues exceeding the permitted levels into Tenterfield Creek from the Defendant's gravel manufacturing plant. The key issues involved determining the objective seriousness of the offences, the Defendant's moral culpability, and the applicability of the principle of totality to the offences. The court considered the Defendant's cooperation, the absence of prior convictions, and the steps taken by the Defendant to mitigate the environmental impact as mitigating factors.

Bignold J found that the offences were serious, given the significant non-filtrable residue levels and the resultant environmental harm to the macro invertebrate community in Tenterfield Creek. The court also noted the Defendant's moral culpability, which was acknowledged by the defence as either negligent or recklessly indifferent. The court accepted that the principle of totality applied to the first two offences due to their close proximity but did not extend it to the third offence, which occurred four months later. The mitigating factors, including the Defendant's early guilty plea, cooperation, and community standing, were considered in determining the penalty.

The court imposed a total penalty of $50,000, with $10,000 for the first offence, $20,000 for the second offence, and $20,000 for the third offence. The Defendant was also ordered to pay the prosecutor's costs of $11,400. The court's decision emphasized the seriousness of environmental offences and the importance of compliance with licence conditions to prevent harm to aquatic ecosystems.

Orders