Environment Protection Authority v Davis - [2005] NSWLEC 643

Land and Environment Court

of New South Wales

CITATION:
Environment Protection Authority v Davis [2005] NSWLEC 643

PARTIES:
PROSECUTOR:
Environment Protection Authority
DEFENDANT:
Geoffrey James Davis

FILE NUMBER(S):
50072 of 2004

CORAM:
Lloyd J

KEY ISSUES:
Environmental Offences :- unlawful disposal of septic tank waste - deliberate act - potential harm - plea of guilty - penalty - mitigation

LEGISLATION CITED:
Fines Act 1996 s 6
Protection of the Environment Operations Act 1997 s 143(1)(a), s 241(1)

CASES CITED:
Waldon v Hensler (1987) 163 CLR 561

DATES OF HEARING: 03/02/2005

EX TEMPORE JUDGMENT DATE:
02/03/2005

LEGAL REPRESENTATIVES:
PROSECUTOR:
Ms J Coburn (solicitor)
SOLICITOR:
Stephen Garrett
DEFENDANT:
Ms M L Sneddon (barrister)
SOLICITORS:
Hannigans

JUDGMENT:

- 1 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Lloyd J

Thursday, 3 February 2005

LEC No. 50072 of 2004

ENVIRONMENT PROTECTION AUTHORITY v DAVIS [2005] NSWLEC 643

EX TEMPORE JUDGMENT

1 His Honour: The defendant, Geoffrey James Davis, pleads guilty to an offence against s 143(1)(a) of the Protection of the Environment Operations Act 1997 in that he transported waste to a place that could not lawfully be used as a waste facility for that waste.

2 The relevant facts may be briefly described and in this respect the Court has been assisted by an agreed statement of facts.

3 The offence occurred on or about 20 February 2004 at or near Uki in the State of New South Wales. The offence arose out of the discharge of septic tank waste onto the ground at the Uki recreation ground on the banks of the Tweed River. I should note that Mr Davis has pleaded guilty to this offence and did so at the earliest opportunity and has at all relevant times fully co-operated with the prosecutor.

4 The waste was septic tank waste that had been collected from two residential properties on that day. The defendant owns and operates a business known as Kyogle Pumping Services. As part of that business the defendant pumps out septic tanks at residential premises. He holds an environmental protection licence for the transport of waste. The licence stipulates that he is authorised to transport waste in a particular vehicle. That vehicle is a truck that has a tank on the tray which holds approximately 4,000 litres of liquid.

5 The defendant had consent to dispose of the septic tank waste into the council’s sewer at Kyogle. In May 2003 he was told that he could no longer dispose of septic tank waste into the council’s sewerage system. Accordingly, in November 2003 an interim arrangement involving Kyogle Council and Rouse Water in Lismore was made whereby the defendant could discharge waste at the Rouse water facility for six months at a reduced disposal rate, the six-month period expiring in May 2004.

6 At about 10 am on 20 February 2004 an officer then of the Department of Infrastructure Planning and Natural Resources, Mr Peter Boyd, was driving along the Kyogle Road into the village of Uki.…

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 Davis

Details

AGLC: Environment Protection Authority v Davis [2005] NSWLEC 643
Case: [2005] NSWLEC 643
Decision Date: 02/03/2005

CaseChat Overview and Summary

In this case, the defendant, Geoffrey James Davis, pleaded guilty to an offence under the Protection of the Environment Operations Act 1997 for transporting waste to a place that could not lawfully be used as a waste facility for that waste. The offence occurred when the defendant discharged septic tank waste onto the ground at the Uki recreation ground on the banks of the Tweed River. The court was required to determine the appropriate penalty for the defendant, taking into account various factors such as the potential harm caused, the defendant's control over the situation, and his financial means.

The court considered several legal principles in determining the penalty, including the objective gravity of the offence, the need for general deterrence, and the defendant's ability to pay. The court found that the offence was serious due to the quantity of waste involved, the deliberate nature of the offence, and the potential environmental harm to the Tweed River, which is a source of drinking water for the town of Uki. The court also noted the defendant's full cooperation with the prosecutor, his early plea of guilty, and his expressed remorse. Considering the defendant's financial situation, the court determined that an appropriate penalty would be at the lower end of the prescribed range.

In conclusion, the court imposed a fine of $5,000 on the defendant, ordered him to pay the prosecutor's costs of $9,000, and formally convicted him of the offence. The court emphasized the importance of environmental protection and the need for strict enforcement of relevant legislation to prevent similar offences in the future.

Orders