Environment Protection Authority v Emerald Peat Pty Ltd - [1999] NSWLEC 28

Land and Environment Court

of New South Wales

CITATION:

Environment Protection Authority -V- Emerald Peat Pty Ltd [1999] NSWLEC 28

PARTIES

Prosecutor:
Environment Protection Authority

Defendant:
Emerald Peat Pty Ltd

NUMBER:

50125 of 1998

CORAM:

Talbot J

KEY ISSUES:

:- amendment of charge - duplicity - consent to institute proceedings - continuous offence

LEGISLATION CITED:

amendment of charge - duplicity - consent to institute proceedings - continuous offence

DATES OF HEARING:

02/22/1999

DATE OF JUDGMENT DELIVERY:

02/26/1999

LEGAL REPRESENTATIVES:

Prosecutor:
Mr D A Buchanan SC
Solicitor:
Stephen Garrett
Environment Protection Authority
Defendant:
Mr C W McEwen (Barrister)
Solicitor:
Minter Ellison

JUDGMENT:

IN THE LAND AND MATTER No. 50125 of 1998
ENVIRONMENT COURT CORAM: Talbot J
OF NEW SOUTH WALES DECISION DATE: 26 February 1999

ENVIRONMENT PROTECTION AUTHORITY
Prosecutor

v
EMERALD PEAT PTY LTD
Defendant

REASONS FOR JUDGMENT

1. The defendant has been ordered, pursuant to s 41 of the Land and Environment Court Act, to appear before a Judge of the Court to answer the charge that it has committed an offence against the Environmental Offences and Penalties Act 1989 (the EOP Act) in that on or about 25 August 1997 and continuing on each day thereafter until about 12 September 1997 at Burrawang it polluted waters contrary to s 16(1) and 16(7) of the Clean Waters Act 1970 (the CW Act).

2. On 24 August 1998 the Director-General of the EPA on behalf of the EPA consented to the institution of the proceedings for an offence in the above terms pursuant to s 13(1) of the EOP Act.

3. By Notice of Motion returnable 22 February 1999 the prosecutor moved the Court for orders that the dates 25 August 1997 and 12 September 1997 be substituted by 4 August 1997 and 17 September 1997 respectively.

4. The only evidence relied upon in support of the Notice of Motion is in an affidavit sworn by Thomas Howard, a solicitor employed by the EPA. At the time of filing the summons Mr Howard was of the view that “the offence was comprised in the activity of the Defendant in excavating a portion of the bed of the dredge pool in Wingecarribee Swamp known as the boat launching area or boat ramp and the resulting pollution of the (particularised) waters of the Swamp and Wingecarribee Reservoir”. Although Mr Howard was aware that before 25 August 1997 there had been activity of digging back of a dredge from the western bank of the dredge pool, he was not aware of evidence that there was a pollution of the particularised waters caused by that activity.

5. In December 1998 he became aware of evidence that polluted water was seen leaving the dredge pool prior to 25 August 1997 and that there was evidence available to the effect that a sample of water taken in the swamp downstream of the dredge pool on 18 September 1997 showed elevated levels of turbidity and other evidence.

6. According to Mr Buchanan SC who appears for the prosecutor,…

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: [1999] NSWLEC 28
Decision Date: 26 February 1999

CaseChat Overview and Summary

In the case of Environment Protection Authority v Emerald Peat Pty Ltd, the Environment Protection Authority (EPA) sought to amend the particulars of a summons charging Emerald Peat Pty Ltd with an offence under the Environmental Offences and Penalties Act 1989 and the Clean Waters Act 1970. The charge related to the alleged continuous pollution of waters at Burrawang, New South Wales, from approximately 25 August 1997 until about 12 September 1997. The EPA sought to amend the dates to include an earlier start date of 4 August 1997 and a later end date of 17 September 1997. The key legal issues before Talbot J were whether the amendment of the charge would result in a duplicitous charge and whether the amendment would require fresh consent from the EPA under section 13(1) of the Environmental Offences and Penalties Act.

Talbot J held that the Court had the power to amend the charge under section 68(1) of the Land and Environment Court Act and relevant rules, provided the amendment was necessary in the interests of justice. The Court found that the amendment did not constitute a new offence but merely extended the period over which the alleged continuous offence occurred. The rule against duplicity, which prohibits charging multiple offences based on the same conduct, would not be violated because the acts alleged were part of the same continuous criminal enterprise. The Court also concluded that the amendment did not require fresh consent from the EPA because the substance of the charge remained the same, namely the continuous pollution of waters between specified dates. The Court therefore allowed the amendment and ordered the summons to be amended accordingly.

The final orders were that the summons be amended to reflect the new dates of the alleged offence, the costs of the motion be reserved, and the prosecutor be directed to file an amended summons within seven days. The Court did not require fresh consent from the EPA for the amended summons.

Orders