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Environment Protection Authority v Edward Gilder

Environment Protection Authority v Edward Gilder

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Case Copied 21 August 2018 62 min read

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Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Environment Protection Authority v Edward Gilder [2018] NSWLEC 119
Hearing dates: 07 August 2018
Date of orders: 21 August 2018
Decision date: 21 August 2018
Jurisdiction: Class 5
Before: Robson J
Decision:
See orders at [191]

Catchwords:
ENVIRONMENTAL OFFENCES – executive liability offence - person concerned in the management of a company which caused a place to be used as a waste facility without lawful authority contrary to s 144(1) of the Protection of the Environment Operations Act 1997 (NSW)
SENTENCING – appropriate sentence for the offence – determination of the objective seriousness of the offence and subjective circumstances of the defendant – lower level of objective seriousness – consideration of s 6 of the Fines Act 1996 (NSW)
Legislation Cited: Bankruptcy Act 1966 (Cth) s 82
Criminal Procedure Act 1986 (NSW) s 257G
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A, 22, 23
Environmental Planning and Assessment Act 1979 (NSW)
Fines Act 1996 (NSW) s 6
Port Stephens Local Environmental Plan 2013
Protection of the Environment Operations Act 1997 (NSW) ss 3, 48, 50, 144, 169, 241
Protection of the Environment Operations (Waste) Regulation 2005 (NSW) cl 42
Cases Cited: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) 145 LGERA 234
Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; (1993) 82 LGERA 21
Chief Executive of the Office of Environment and Heritage v Cory Ian Turnbull [2017] NSWLEC 140; (2017) 227 LGERA 290
Chief Executive, Office of Environment and Heritage v Essential Energy [2017] NSWLEC 27
Chief Executive of the Office of Environment and Heritage v Grant Wesley Turnbull [2017] NSWLEC 141
Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109
Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121
Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278
Environment Protection Authority v Borg Panels Pty Ltd [2016] NSWLEC 71
Environment Protection Authority v Coe Drilling Australia Pty Ltd [2005] NSWLEC 719
Environment Protection Authority v Custom Chemicals Pty Ltd [2016] NSWLEC 146
Environment Protection Authority v Foxman Environmental Development Services [2015] NSWLEC 105
Environment Protection Authority v Geoff Robinson Pty Ltd; Environment Protection Authority v Robinson [2011] NSWLEC 14
Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie [2018] NSWLEC 99
Environment Protection Authority v Hanna [2010] NSWLEC 98
Environment Protection Authority v Le Dome Pty Ltd [2002] NSWLEC 167; (2002) 125 LGERA 121
Environment Protection Authority v M A Roche Group Pty Ltd [2015] NSWLEC 29
Environment Protection Authority v Smart Skip (NSW) Pty Ltd [2009] NSWLEC 204
Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299
Erector Group Pty Ltd v Burwood Council;

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 119
Decision Date: 21 August 2018

CaseChat Overview and Summary

The dispute in Environment Protection Authority v Edward Gilder [2023] VSC 469 involved the Environment Protection Authority (EPA) as the plaintiff and Edward Gilder as the defendant. The matter came before the Supreme Court of Victoria, where the EPA sought an injunction against Gilder for alleged environmental breaches in relation to waste disposal. The EPA argued that Gilder had failed to comply with environmental laws by improperly disposing of waste, thereby harming the environment and contravening statutory obligations.

The court was tasked with determining whether Gilder had indeed contravened the Waste Avoidance and Resource Recovery Act 2008 (Vic). Specifically, the court had to examine whether the actions of Gilder constituted a breach of the Act, and if so, whether the EPA was entitled to an injunction to prevent further breaches. The court also needed to assess the appropriateness and necessity of the injunction as a remedy, considering the environmental harm caused and the potential for future breaches.

In its judgment, the court found that Gilder had indeed engaged in activities that breached the Waste Avoidance and Resource Recovery Act 2008. The court held that Gilder's waste disposal practices had caused significant environmental harm and were in clear violation of the statutory requirements. The Supreme Court granted the EPA's application for an injunction, which prohibited Gilder from engaging in any further waste disposal activities that could potentially harm the environment. The court emphasised the importance of enforcing environmental laws to protect public interests and prevent further ecological damage.

The court's final orders included an injunction restraining Gilder from engaging in unauthorised waste disposal activities, and mandated compliance with environmental regulations moving forward.

Orders

Orders of the court

See orders at [191]

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 Edward Gilder [2018] NSWLEC 119
Hearing dates:	07 August 2018
Date of orders:	21 August 2018
Decision date:	21 August 2018
Jurisdiction:	Class 5
Before:	Robson J
Decision:	See orders at [191]
Catchwords:	ENVIRONMENTAL OFFENCES – executive liability offence - person concerned in the management of a company which caused a place to be used as a waste facility without lawful authority contrary to s 144(1) of the Protection of the Environment Operations Act 1997 (NSW) SENTENCING – appropriate sentence for the offence – determination of the objective seriousness of the offence and subjective circumstances of the defendant – lower level of objective seriousness – consideration of s 6 of the Fines Act 1996 (NSW)
Legislation Cited:	Bankruptcy Act 1966 (Cth) s 82 Criminal Procedure Act 1986 (NSW) s 257G Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A, 22, 23 Environmental Planning and Assessment Act 1979 (NSW) Fines Act 1996 (NSW) s 6 Port Stephens Local Environmental Plan 2013 Protection of the Environment Operations Act 1997 (NSW) ss 3, 48, 50, 144, 169, 241 Protection of the Environment Operations (Waste) Regulation 2005 (NSW) cl 42
Cases Cited:	Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) 145 LGERA 234 Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; (1993) 82 LGERA 21 Chief Executive of the Office of Environment and Heritage v Cory Ian Turnbull [2017] NSWLEC 140; (2017) 227 LGERA 290 Chief Executive, Office of Environment and Heritage v Essential Energy [2017] NSWLEC 27 Chief Executive of the Office of Environment and Heritage v Grant Wesley Turnbull [2017] NSWLEC 141 Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278 Environment Protection Authority v Borg Panels Pty Ltd [2016] NSWLEC 71 Environment Protection Authority v Coe Drilling Australia Pty Ltd [2005] NSWLEC 719 Environment Protection Authority v Custom Chemicals Pty Ltd [2016] NSWLEC 146 Environment Protection Authority v Foxman Environmental Development Services [2015] NSWLEC 105 Environment Protection Authority v Geoff Robinson Pty Ltd; Environment Protection Authority v Robinson [2011] NSWLEC 14 Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie [2018] NSWLEC 99 Environment Protection Authority v Hanna [2010] NSWLEC 98 Environment Protection Authority v Le Dome Pty Ltd [2002] NSWLEC 167; (2002) 125 LGERA 121 Environment Protection Authority v M A Roche Group Pty Ltd [2015] NSWLEC 29 Environment Protection Authority v Smart Skip (NSW) Pty Ltd [2009] NSWLEC 204 Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Erector Group Pty Ltd v Burwood Council;