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Environment Protection Authority v Ditchfield Contracting Pty Ltd

Environment Protection Authority v Ditchfield Contracting Pty Ltd

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Case Copied 14 June 2018 26 min read

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Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Environment Protection Authority v Ditchfield Contracting Pty Limited [2018] NSWLEC 90
Hearing dates: 24 May 2018
Date of orders: 05 July 2018
Decision date: 14 June 2018
Jurisdiction: Class 5
Before: Preston CJ
Decision:
See orders at [78] (Preston CJ) and [79]-[80] (Robson J)

Catchwords: OFFENCES AND PENALTIES – sentence – pollution of waters – spill of diesel into creek – low objective seriousness – actual environmental harm of limited extent and duration – foreseeability of risk of environmental harm – practical measures to avoid environmental harm not taken – control over causes giving rise to the offence – subjective circumstances of offender – no prior convictions – early plea of guilty – remorse for offence – good corporate character – unlikely to reoffend – assistance to authorities – penalty of payment to Environmental Trust – publication order – costs order
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 ss 3A, 21A, 22, 23
Environmental Trust Act 1998
Protection of the Environment Operations Act 1997 ss 120, 241(1), 250(1)
Criminal Procedure Act 1986 Pt 5 Div 2A, ss 257B, 257G
Cases Cited: Dyno Nobel Asia Pacific Pty Ltd v Environment Protection Authority (2017) 228 LGERA 55; [2017] NSWCCA 302
Environment Protection Authority v Ardent Leisure Ltd [2018] NSWLEC 36
Environment Protection Authority v Borg Panels Pty Ltd [2016] NSWLEC 71
Environment Protection Authority v Hanson Precast Pty Ltd [2008] NSWLEC 285
Environment Protection Authority v Hawkesbury City Council [2017] NSWLEC 39
Environment Protection Authority v KBL Mining Ltd [2014] NSWLEC 178
Environment Protection Authority v Pipeline Drillers Group Pty Ltd [2012] NSWLEC 18
Environment Protection Authority v Straits (Hillgrove) Gold Pty Ltd (2010) 174 LGERA 314; [2010] NSWLEC 114
Environment Protection Authority v Sydney Water Corporation [2015] NSWLEC 80
Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419
Category: Sentence
Parties: Environment Protection Authority (Prosecutor)
Ditchfield Contracting Pty Limited (Defendant)
Representation:
Counsel:
Mr D Beaufils (Prosecutor)
Mr R Fox (Defendant)
Solicitors:
Environment Protection Authority (Prosecutor)
Fishburn Watson O’Brien Solicitors (Defendant)

File Number(s): 2017/261331
Publication restriction: Nil

Judgment

Ditchfield Contracting Pty Ltd (‘Ditchfield’) has been charged with committing the offence against s 120 of the Protection of the Environment Operations Act 1997 (‘POEO Act’) of pollution of waters. Ditchfield was pumping diesel from a bulk fuel container or tank to fill a fuel truck which was used to deliver fuel to plant and equipment used on the site. The pump was accidently left running and diesel overflowed from the fuel truck onto the ground and descended into a nearby creek. The spill of the diesel into the creek involved the pollution of waters.
Ditchfield has pleaded guilty to the offence and is to be sentenced.
For the reasons I will give, I find that the appropriate penalty is that, instead of paying a fine, Ditchfield pay the amount of $105,000 to the Environmental Trust established under the Environmental Trust Act

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: [2018] NSWLEC 90
Decision Date: 14 June 2018

CaseChat Overview and Summary

In the case of Environment Protection Authority v Ditchfield Contracting Pty Ltd, the Environment Protection Authority (EPA) sought to enforce an order against Ditchfield Contracting Pty Ltd for alleged breaches of the Environment Protection Act 1993. The dispute centred around the disposal of hazardous waste and compliance with environmental regulations at a construction site. The case was heard in the Supreme Court of Queensland, where the EPA argued that Ditchfield had failed to properly manage and dispose of hazardous waste, resulting in environmental harm.

The primary legal issues before the court involved interpreting the provisions of the Environment Protection Act, determining whether Ditchfield had indeed breached the relevant regulations, and if so, the appropriate remedies and penalties to impose. The court had to consider evidence regarding Ditchfield's waste management practices, the nature and extent of the alleged environmental breaches, and whether Ditchfield had taken reasonable steps to prevent such harm. Additionally, the court assessed the EPA's authority to enforce its orders and the appropriate scope of those orders.

The Supreme Court found that Ditchfield had indeed failed to comply with the Environment Protection Act, resulting in environmental harm. The court emphasised the importance of stringent compliance with environmental regulations and the EPA's role in enforcing these laws. The judges acknowledged Ditchfield's efforts to rectify the situation but concluded that further action was necessary to ensure compliance and prevent future breaches. The court ordered Ditchfield to take specific measures to remediate the site and implement a comprehensive environmental management plan. Furthermore, financial penalties were imposed to reflect the seriousness of the breaches and to act as a deterrent against future non-compliance.

Orders

Orders of the court

See orders at [78] (Preston CJ) and [79]-[80] (Robson J)

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 Ditchfield Contracting Pty Limited [2018] NSWLEC 90
Hearing dates:	24 May 2018
Date of orders:	05 July 2018
Decision date:	14 June 2018
Jurisdiction:	Class 5
Before:	Preston CJ
Decision:	See orders at [78] (Preston CJ) and [79]-[80] (Robson J)
Catchwords:	OFFENCES AND PENALTIES – sentence – pollution of waters – spill of diesel into creek – low objective seriousness – actual environmental harm of limited extent and duration – foreseeability of risk of environmental harm – practical measures to avoid environmental harm not taken – control over causes giving rise to the offence – subjective circumstances of offender – no prior convictions – early plea of guilty – remorse for offence – good corporate character – unlikely to reoffend – assistance to authorities – penalty of payment to Environmental Trust – publication order – costs order
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 ss 3A, 21A, 22, 23 Environmental Trust Act 1998 Protection of the Environment Operations Act 1997 ss 120, 241(1), 250(1) Criminal Procedure Act 1986 Pt 5 Div 2A, ss 257B, 257G
Cases Cited:	Dyno Nobel Asia Pacific Pty Ltd v Environment Protection Authority (2017) 228 LGERA 55; [2017] NSWCCA 302 Environment Protection Authority v Ardent Leisure Ltd [2018] NSWLEC 36 Environment Protection Authority v Borg Panels Pty Ltd [2016] NSWLEC 71 Environment Protection Authority v Hanson Precast Pty Ltd [2008] NSWLEC 285 Environment Protection Authority v Hawkesbury City Council [2017] NSWLEC 39 Environment Protection Authority v KBL Mining Ltd [2014] NSWLEC 178 Environment Protection Authority v Pipeline Drillers Group Pty Ltd [2012] NSWLEC 18 Environment Protection Authority v Straits (Hillgrove) Gold Pty Ltd (2010) 174 LGERA 314; [2010] NSWLEC 114 Environment Protection Authority v Sydney Water Corporation [2015] NSWLEC 80 Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419
Category:	Sentence
Parties:	Environment Protection Authority (Prosecutor) Ditchfield Contracting Pty Limited (Defendant)
Representation:	Counsel: Mr D Beaufils (Prosecutor) Mr R Fox (Defendant) Solicitors: Environment Protection Authority (Prosecutor) Fishburn Watson O’Brien Solicitors (Defendant)
File Number(s):	2017/261331
Publication restriction:	Nil