Environment Protection Authority v Delta Electricity - [2009] NSWLEC 11

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Delta Electricity [2009] NSWLEC 11

PARTIES:
PROSECUTOR
Environment Protection Authority
DEFENDANT
Delta Electricity

FILE NUMBER(S): 50068 of 2008

CORAM: Pain J

KEY ISSUES: PROSECUTION :- sentence - breach of environment protection licence condition - failure to minimise or prevent the emission of dust from premises in accordance with licence condition - whether
environmental harm - level of culpability where specialised contractor responsible for dust control of flyash under contract - mitigating factors

LEGISLATION CITED: Crimes Sentencing Procedure Act 1999 s 3A(b) s 21A s 22 s 23
Protection of the Environment Operations Act 1999 s 64(1) s 241(1)
State Owned Corporations Act 1989

CASES CITED: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Environment Protection Authority v BHP Steel (AIS) Pty Ltd (NSWLEC, Talbot J, 19 April 2000, unreported)
Environment Protection Authority v BHP Steel (AIS) Pty Ltd [2003] NSWLEC 46
Environment Protection Authority v Coastal Recycled Cooking Oils Pty Limited [2008] NSWLEC 242
Environment Protection Authority v Lithgow Coal Company Pty Ltd [2003] NSWLEC 430
Environmental Protection Authority v Incitec Limited [2003] NSWLEC 381
Environment Protection Authority v Nowra Chemicals [2008] NSWLEC 187
Environment Protection Authority v Shoalhaven Starches Pty Ltd [2003] NSWLEC 107
Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299
Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189
R v Thomson; R v Houlton (2000) 49 NSWLR 383
R v Sharma (2002) 54 NSWLR 300
Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465

DATES OF HEARING: 4 February 2009

DATE OF JUDGMENT:
11 February 2009

LEGAL REPRESENTATIVES: PROSECUTOR
Mr M Kelly (solicitor)
SOLICITOR
Environment Protection Authority
DEFENDANT
Mr C Leggat SC with Ms H Irish
SOLICITOR
Middletons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

11 February 2009

50058 of 2008 Environment Protection Authority v Delta Electricity
JUDGMENT

1 Her Honour: The Defendant is charged that on 14 September 2007, at or near Wallerawang Power Station (WPS) in New South Wales, it committed an offence against s 64(1) of the Protection of the Environment Operations Act 1997 (the POEO Act) in that it was the holder of Environment Protection Licence 766, condition 03.1 of which was breached. That condition provides:

The premises must be maintained in a condition which minimises or prevents the emission of dust from the premises.

The breach was a failure to maintain the premises in a condition which minimises or prevents the emission of dust from the premises.

2 The Defendant has pleaded guilty and has therefore admitted the essential elements of this offence. The offence is one of strict liability so that mens rea is not an element of the offence.

3 The maximum penalty applicable to offences under s 64(1) of the…

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: [2009] NSWLEC 11
Decision Date: 11 February 2009

CaseChat Overview and Summary

The Land and Environment Court of New South Wales was required to decide a case brought by the Environment Protection Authority against Delta Electricity. Delta Electricity was charged with breaching a condition of its environment protection licence by failing to maintain its premises in a manner that minimised or prevented the emission of dust. The breach occurred at the Kerosene Vale Flyash Repository, a flyash storage facility at Wallerawang Power Station. Delta Electricity pleaded guilty to the charge. The court had to consider various legal issues, including the level of culpability on the part of Delta Electricity, whether environmental harm had occurred, and the appropriate penalty to impose. The court found that while Delta Electricity had some responsibility for the breach, its culpability was at the lower end of the spectrum due to its reliance on a specialised contractor, Thiess, to manage the flyash repository. The court also found that while there was potential for environmental harm, the actual harm was not substantial. In sentencing, the court considered factors such as the maximum penalty, the objective harmfulness of the defendant’s actions, and mitigating factors including Delta Electricity's early guilty plea and cooperation with authorities. The court ultimately fined Delta Electricity $45,000 and ordered it to pay the prosecutor's costs of $35,000.

Orders