Environment Protection Authority v Eveston

[2020] NSWLEC 178

Land and Environment Court

New South Wales

Medium Neutral Citation:

Environment Protection Authority v Eveston [2020] NSWLEC 178

Hearing dates:

16 December 2020

Date of orders:

16 December 2020

Decision date:

16 December 2020

Jurisdiction:

Class 5

Before:

Preston CJ

Decision:

The Court:

(1)   Orders that proceedings 2020/145596 and 2020/145597 are adjourned to:

(a)   Seven days after the disposal of Class 1 proceedings 2020/319495 or

(b)   9 April 2021,

whichever occurs first.

(2)   Grants the parties leave to relist the proceedings on 3 days' notice.

Catchwords:

INTERLOCUTORY ORDERS – prosecution for offences – contravention of conditions of revocation of licence – pleas of guilty – sentence hearing yet to be fixed – application for adjournment of proceedings to allow for actions to mitigate environmental harm caused by commission of offences – adjournment granted

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 s 21A

Criminal Procedure Act 1986 s 40

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979 s 34

Native Vegetation Act 2003 s 12

Protection of the Environment Operations Act 1997 ss 64, 79, 81, 241, 287

Cases Cited:

Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683

Chief Executive of the Office of Environment and Heritage v Kennedy [2012] NSWLEC 93

Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419

HG v The Queen (1999) 197 CLR 414

McGrath v The Queen [2018] VSCA 134

R v Alexandroaia (1995) 81 A Crim R 286

R v Palu (2002) 134 A Crim R 174; [2002] NSWCCA 381

Category:

Procedural and other rulings

Parties:

Environment Protection Authority (Prosecutor) Christopher James Eveston (Defendant)

Representation:

Counsel:
Ms T Epstein (solicitor) (Prosecutor)
Ms C Novak (Defendant)

Solicitors:
Environment Protection Authority (Prosecutor)
Bradley Allen Love Lawyers (Defendant)

File Number(s):

2020/145596 & 2020/145597

Publication restriction:

Nil

Judgment

1. Mr Eveston has been charged with committing two offences against s 64(1) of the Protection of the Environment Operations Act 1997 ("the POEO Act"). He has applied for the proceedings to be adjourned for around three and a half months to allow him the opportunity to seek access to funds to mitigate the environmental harm caused by his commission of the offences.

The grant of an environment protection licence

2. Mr Eveston had carried out resource recovery and waste storage activities at 12 Common Street, Goulburn ("the premises"). These activities are scheduled activities for which an environment protection licence under the POEO Act was required. Mr Eveston did have such a licence, environment protection licence 20036 ("the licence").

3. One of the conditions of the licence, condition E1.1, required Mr Eveston to maintain a financial assurance from an approved financial institution in favour of the Environment Protection Authority (EPA) in the total amount of $250,000. The financial assurance was required to be maintained during the operation of the resource recovery and waste storage facility, and thereafter until such time as the EPA is satisfied that the premises are environmentally secure: condition E1.4.

4. Mr Eveston did provide the financial assurance required by the licence.

The revocation of the licence

5. On 28 April 2018, the licence was revoked by the EPA under s 79(1) of the POEO Act. The reasons given for the revocation of the licence were twofold: there was no development consent granted under the Environmental Planning and Assessment Act 1979 ("EPA Act") in force authorising waste activities at the premises and the EPA did not consider Mr Eveston to be a fit and proper person to hold the licence.

6. As is authorised by s 81(1) of the POEO Act, the notice of revocation of the licence was subject to conditions, three of which are now relevant.

7. Conditions 3 and 4 of the revocation of the licence provided:

"3. All conditions of Environment Protection Licence 20036 (Attachment 1) must continue to be complied with, except for:

(a) Condition A1.1 - the Scheduled Activities of Resource Recovery and Waste Storage are no longer permitted as of the date of this Notice.

(b) Condition L2.1 - which ceases to have effect as of the date of this Notice and is replaced by condition 9 of this Notice.

4. For the avoidance of doubt, EPL 20036 conditions E1 to E3 concerning financial assurance must continue to be complied with."

8. Section 81(2) of the POEO Act authorises the imposition of conditions of revocation of a licence any conditions to which the licence was subject immediately before it was revoked.

9. Condition 5 of the notice of revocation of the licence provided:

"5. All waste at the premises including the two waste stockpiles identified in the PHC Surveyor’s report of 5 December 2017 is Pile 1 Rubbish, and Pile 2 Rubbish (Attachment 2), must be removed from the Premises by no later than 5pm on Friday, 26 October 2018, being 6 months from the date of issue of this Notice."

10. On 21 May 2018, Mr Eveston appealed to the Court against the EPA's decision to revoke the licence under s 287(1) of the POEO Act. The Court arranged a conciliation conference between the parties under s 34 of the Land and Environment Court Act 1979 ("the Court Act"). The parties reached agreement at the s 34 conciliation conference as to the terms of a decision that would be acceptable to the parties. On 12 February 2019, the Court made orders in terms of the parties' agreement, including amending the notice of revocation of the licence as attached to the Court's order.

11. Amongst the amendments were:

1. a change in the date from which the revocation takes effect to 21 December 2018;

2. amendment of conditions 3 and 4 of the notice of revocation of the licence so as to require all conditions of the licence to continue to be complied with except for certain specified conditions, including conditions E1 to E3 of the licence concerning the provision of financial assurance, but importantly not excepting condition E4 requiring Mr Eveston to maintain the financial assurance until such time as the EPA is satisfied that the premises are environmentally secure;

3. insertion of a new condition, E1.2A, that:

"(i) When there is no more than 5,112 cubic metres of waste on the Premises, the amount of financial assurance required by condition E1.1 is reduced from $250,000 to $200,000;

(ii) When there is no more than 3,834 cubic metres of waste on the Premises, the amount of financial assurance required by condition E1.1 is reduced to $150,000;

(iii) When there is no more than 1,917 cubic metres of waste on the premises, the amount of financial assurance required by condition E1.1 is reduced to $75,000;

(iv) When there is no waste on the premises, the amount of financial assurance required by condition E1.1 is reduced to $0."; and

4. a change in the dates by which Mr Eveston needed to remove waste from the premises, by amending condition 5 and inserting a new condition 6, to read as follows:

"5. All waste at the Premises, including the two waste stockpiles identified in the PHL Surveyors' report of 19 November 2018 as Pile 1 and Pile 2 (Attachment 2), must be removed from the premises by no later than 5pm on 21 September 2019, being nine months from the date of issue of this notice.

6. There must be no more than 3,195 cubic metres of waste on the premises by 21 May 2019."

The failure to comply with conditions of the revocation of the licence.

12. Mr Eveston did not remove waste from the premises, so as to have only 3,195 cubic metres of waste on the premises at 21 May 2019 or no waste in the two waste stockpiles on the premises by 21 September 2019. Approximately 6,860 cubic metres of waste remains at the premises.

13. Mr Eveston said the reason he was unable to comply with the conditions to remove and dispose of the waste at a facility that could lawfully receive that waste was his impecuniosity. He does not have sufficient funds to be able to do so.

The prosecutions for two offences of breaching conditions of the revocation of the licence

14. On 15 May 2020, the EPA commenced two proceedings prosecuting Mr Eveston for offences against s 64(1) of the POEO Act of failing to comply with conditions 5 and 6 of the amended notice of revocation of the licence (the criminal proceedings). Section 64(1) states that a licence holder is guilty of an offence if a condition of a licence is contravened. Section 64 extends to any conditions on which a notice of revocation of a licence is issued under s 81, by operation of s 64(3) of the POEO Act.

15. On 14 August 2020, after the EPA had finalised and served its evidence in the criminal proceedings, Mr Eveston entered a plea of guilty to each of the two charges. The criminal proceedings were adjourned for further directions to 18 September 2020.

The application to amend conditions of the revocation of the licence

16. On 8 September 2020, Mr Eveston applied to the EPA for it to further amend certain conditions of the amended notice of revocation of the licence. The EPA has power under s 81(3) of the POEO Act to vary or revoke any existing conditions of the revocation of the licence.

17. Amongst the further amendments that Mr Eveston sought were:

1. an amendment of condition 3 and insertion of a new condition 4 to allow the storage of up to 4,812 tonnes of waste at the premises;

2. the deletion of the amended conditions 5 and 6 of the amended notice of revocation of the licence that was issued by the Court for the staged removal of waste from the premises;

3. the deletion of the new condition E1.2A that was inserted in the amended notice of revocation of the licence issued by the Court for the staged release of the financial assurance with the staged removal of waste from the premises; and

4. the insertion of a new condition 5 that would require Mr Eveston to deposit any part of the financial assurance held pursuant to condition E1.1 of the licence that is released by the EPA into a trust account to be established by Mr Eveston for the sole purpose of paying fees for the transportation and disposal of waste from the premises at an appropriately licensed facility, the new condition reading as follows:

"5. The licensee must establish a trust account within 14 days of the date the Notice is amended (the Trust Account), being an account for moneys to be held on trust for the sole purpose of paying fees for the transportation and disposal of waste from the premises at an appropriately licensed facility.

(a) On the release by the EPA to the licensee of any part of the financial assurance held pursuant to condition E1.1 of the EPL by the EPA (the released funds), the licensee must hold

(i) Within 2 business days deposit the whole of the released funds into the Trust Account;

(ii) Within 5 business days, submit a Trust Account Statement to the EPA evidencing the deposit of the released funds into the Trust Account.

(b) Within 10 business days of the released funds being deposited into the Trust Account, the licensee must make arrangements for the released funds to be used to fund the removal and disposal of so much of the removal, transportation, disposal of waste from the premises as the released funds will finance.

(c) The licensee must expend all of the released funds on the removal of waste from the Premises, and its transportation and disposal to a licensed waste facility. None of the released funds may be used for any other purpose. The licensee must notify the EPA of the volume of waste which has been removed from the Premises with 7 days of the date the released funds have been fully expended.

(d) Within 28 days of the date the released funds have been fully expended, the licensee must provide the EPA with:

(i) a volumetric survey of the Premises;

(ii) receipts for the disposal of the Waste;

(iii) details of:

(a) the facility or facilities to which waste from the Premises was taken;

(b) the name of the operator of each facility;

(c) the tipping fee (rate per tonne) charged by each facility which took the waste from the Premises."

18. On 17 September 2020, the Court made an order by consent adjourning the criminal proceedings until 6 November 2020, to allow the EPA time to determine Mr Eveston's application to further amend the amended notice of revocation.

The EPA’s refusal of the application to amend the conditions of revocation of the licence

19. On 19 October 2020, the EPA determined to refuse Mr Eveston's requested amendments of the amended notice of revocation. The EPA gave reasons for its decision:

(a) As to removal of condition 3 and insertion of a new condition 4, the ongoing storage of up to 4,812 tonnes of waste would be inconsistent with the lawful permitted use of the premises, as Mr Eveston has neither a development consent nor an environment protection licence authorising the carrying out of the activity of waste storage on the premises;

(b) As to removal of conditions 5 and 6, the EPA did not agree to deletion of these conditions requiring the staged removal of the waste from the premises;

(c) and (d) As to alternative conditions regarding release and use of the financial assurance, the proposed arrangements would be inconsistent with the purpose of Pt 9.4 of the POEO Act, which "is to provide (by way of conditions of environment protection licences) financial assurances to secure or guarantee funding for or towards the carrying out of works or programmes (such as remediation work or pollution reduction programmes) required by or under a licence", and leave the EPA with no recourse should funding for the carrying out of other works be required. The EPA is concerned that the waste on the premises has caused or is likely to continue to cause pollution of waters and harm to the environment. The premises are not environmentally secure, which is the state in which the premises must be before the EPA releases the financial assurance under condition E1.4 of the licence. The EPA wishes to be able to claim on the financial assurance to fund any work that needs to be done to either remove waste from the premises or make the premises environmentally secure if Mr Eveston has not done either action.

20. On 4 November 2020, the criminal proceedings were adjourned by consent to 13 November 2020.

The appeal against the EPA’s refusal to amend the notice of revocation

21. In the meantime, on 9 November 2020, Mr Eveston commenced an appeal against the EPA's refusal of his application to amend the conditions of the amended notice of revocation of the licence (the revocation of licence appeal). Mr Eveston claims the source of his right to appeal against the EPA's refusal of his application to amend the conditions of the amended notice of revocation of the licence is s 287(1) of the POEO Act. The first return date of the revocation of licence appeal was moved from 8 December to 9 December then again moved to 13 December 2020. On 13 December 2020, the Registrar fixed a conciliation conference under s 34 of the Court Act on 29 March 2021.

The application to dismiss the revocation of licence appeal

22. On 7 December 2020, the EPA filed a notice of motion seeking that the revocation of licence appeal be dismissed for want of jurisdiction. The EPA contends that Mr Eveston has no right of appeal against the EPA's refusal to amend the conditions of the amended notice of revocation of the licence, in the way sought by Mr Eveston in his application, under s 287(1) of the POEO Act or otherwise. The EPA's notice of motion was returnable on 15 December 2020, at which time it was listed for hearing on 28 January 2021, in the last week of the law vacation.

The application to adjourn the criminal proceedings

23. Mr Eveston has moved the Court by notice of motion filed on 11 November 2020 for the criminal proceedings to be adjourned until seven days after the determination of the revocation of licence appeal or 19 March 2021, whichever occurs first. At the directions hearing of the criminal proceedings on 20 November 2020, the motion was fixed for hearing today, 16 December 2020.

24. The Court has power to adjourn the criminal proceedings under s 40 of the Criminal Procedure Act 1986.

25. At the hearing of the motion, Mr Eveston varied the date of 19 March 2021 specified in the notice of motion to be 9 April 2021, being the first list date for criminal proceedings after the conciliation conference is scheduled to be held on 29 March 2021 and the directions hearing is scheduled to be held on 6 April 2021 in the revocation of licence appeal.

Mr Eveston's reasons for seeking the adjournment

26. Mr Eveston's reasons for seeking adjournment of the criminal proceedings are simple. He wishes to remove waste from the premises, as he was obliged to do under the conditions of the amended notice of revocation of the licence. He has not been able to comply with the conditions to date. That is the reason for the two charges for the offences against s 64(1) of the POEO Act to which he has pleaded guilty. The reason he has not been able to comply with the conditions is purely financial. He does not have sufficient funds to be able to remove, transport and dispose of the waste at a licensed waste facility, including paying the necessary tipping fees to the waste facility for disposal of the waste.

27. The financial assurance in the amount of $250,000 that he provided under condition E1.1 of the licence and that he is required to maintain under condition E1.4, if the EPA were to agree to release it, would provide funds to enable Mr Eveston to pay for the removal, transportation and disposal of at least a portion of the waste from the premises. This is the purpose of his application to the EPA to further amend the amended notice of revocation of the licence and of the revocation of licence appeal. If the revocation of licence appeal were to be successful, and the whole or a part of the financial assurance were to be released, Mr Eveston would be able to use such funds to pay for the costs of removal, transportation and disposal of waste from the premises.

28. Mr Eveston submits that any action he takes to remove and dispose of waste from the premises will be relevant to the sentence that the Court imposes for the offences against s 64(1) of the POEO Act to which Mr Eveston has pleaded guilty. Pursuant to s 21A(1) of the Crimes (Sentencing Procedure) Act 1999 ("Sentencing Act"), the Court is to take into account in determining the appropriate sentence for the offence, the aggravating factors in s 21A(2), the mitigating factors in s 21A(3), and any other objective or subjective factor that affects the relative seriousness of the offence.

29. One of the aggravating factors in s 21A(2)(g) of the Sentencing Act is if the offence caused any loss or damage, including any environmental harm, that is substantial. The EPA in its refusal of Mr Eveston's application for further amendment of the amended notice of revocation expressed concern that the waste on the premises has caused and is likely to continue to cause pollution of waters and harm to the environment. Mr Eveston submits that, if he is able to remove waste from the premises, the environmental harm caused or likely to be caused by the waste could be mitigated, so that any loss or damage caused or likely to be caused by the commission of the offence will not be substantial. The purpose of the revocation of licence appeal is to allow Mr Eveston access to funds that would enable him to remove waste from the premises and mitigate the environmental harm.

30. Any environmental harm caused by the commission of the offences and the practical measures that may be taken to prevent, control, abate or mitigate that harm are also relevant factors that the Court is required to take into account in sentencing Mr Eveston for the offences he has committed, under s 241(1)(a) and (b) of the POEO Act. Mr Eveston submits that his efforts to reduce the environmental problem by removing waste from the premises is relevant to the sentence the Court might impose, even if his efforts do not fully resolve the problem: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 701.

26. One of the mitigating factors in s 21A(3)(i) of the Sentencing Act that the Court can take into account is the remorse shown by Mr Eveston, but only if he has “acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)”. Again, the purpose of the revocation of licence appeal is to put Mr Eveston in funds so as to make reparation for the loss or damage caused by his failure to comply with the conditions of revocation of the licence.

27. Mr Eveston submits that if he is successful in the revocation of licence appeal he will be able to make at least partial reparation of the loss or damage caused by his commission of the offences for which he is to be sentenced. Even if he were to be unsuccessful in the revocation of licence appeal, he would be in a position to demonstrate to the Court that he has done all that is in his power to be done to put him in funds for the purpose of effecting such reparation.

28. Mr Eveston submits that it is important for his case that he does more than make bare statements accepting responsibility for his actions and acknowledging any loss or damage caused by his actions; he wants to demonstrate his remorse by making at least partial reparation for the loss or damage. Mr Eveston invokes the exhortation in Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 at [203]:

"Contrition and remorse will be more readily shown by the offender taking actions, rather than offering smooth apologies through their legal representative. The actions underlying genuine contrition and remorse may take at least four forms."

34. The decision then sets out the forms in which genuine contrition and remorse may be demonstrated. The first of these actions is "the speed and efficiency of action to rectify any harm caused or likely to continue to be caused by the commission of the offence": at [204].

35. Mr Eveston submits that in these ways, evidence of relevance to the sentencing task of the Court will be able to be obtained and put before the Court if the adjournment of the criminal proceedings were to be granted by the Court.

36. In R v Alexandroaia (1995) 81 A Crim R 286 at 289, the Court of Criminal Appeal was content to adopt a test of whether there was a reasonable possibility that material of substantial assistance to the accused's case would be obtained if the trial were delayed to allow the accused to conduct further investigations. Here, there is a reasonable possibility that material of substantial assistance to the plea in mitigation that Mr Eveston will wish to make at the sentencing hearing as to the sentence that the Court should impose on him for the offences he has committed, will be obtained if the adjournment is granted.

37. In Chief Executive of the Office of Environment and Heritage v Kennedy [2012] NSWLEC 93, this Court was inclined to adjourn the sentencing hearing to allow the prosecutor and the defendant time to finalise negotiations for a remediation order to remediate land that had been cleared by the defendant in contravention of s 12 of the Native Vegetation Act 2003. Influential in the Court's decision to grant the adjournment was "the fact that the defendant regards, and the sentencing judge may regard, the question of an amended remediation order and his compliance with it as important or at least significant": at [8].

38. Mr Eveston submits that a refusal to adjourn the criminal proceedings would deny him a full and fair opportunity to present his plea in mitigation at the sentencing hearing.  The Court should consider the potential prejudice to Mr Eveston's case if the adjournment were not to be granted:  HG v The Queen (1999) 197 CLR 414 at [126] and McGrath v The Queen [2018] VSCA 134 at [52].

39. Mr Eveston submits that his application for an adjournment of the criminal proceedings is timely.  There is no issue of delay or other disentitling conduct on the part of Mr Eveston:  McGrath v The Queen at [52].

40. The limited adjournment sought will not prejudice the legitimate public interest in seeking the timely finalisation of the criminal proceedings.  No substantive orders have been made by the Court to progress the criminal proceedings to a sentencing hearing, and the matter has not yet been set down for the sentencing hearing.

41. In the circumstances, any prejudice to the EPA caused by an adjournment will be minimal, if any, and there is no waste of Court resources or time involved in granting the adjournment.  In this respect, the present application is different to the case of R v Alexandroaia, where the adjournment was refused when it was sought after the jury trial had commenced.

42. Mr Eveston noted that the adjournment is sought for a definite period of up to three and a half months, until after the conciliation conference in the revocation of licence appeal is held.  By that time, more will be known as to whether the revocation of licence appeal was able to be settled, and whether Mr Eveston will be able to access funds to pay for the removal, transportation and disposal of waste from the premises.

43. In the alternative to the fixed date of 9 April 2021, the motion proposes a date of seven days after the disposal of the revocation of licence appeal.  The EPA's motion to dismiss the appeal for want of jurisdiction is listed for hearing on 28 January 2021.  If the EPA is successful and the Court dismisses the appeal, the criminal proceedings will be relisted seven days after the Court's decision dismissing the proceedings.

44. By adjourning the criminal proceedings for a limited period of time, and by fixing alternative dates, the Court will be able to maintain an appropriate degree of supervision over the criminal proceedings to satisfy itself that Mr Eveston is prosecuting the revocation of licence appeal with due despatch.

The EPA’s reasons for opposing the adjournment

45. The EPA contends that there is no utility in the adjournment sought by Mr Eveston of the criminal proceedings and that further delay in the sentencing of Mr Eveston is not wholly justified in order to ensure that the sentencing discretion is properly exercised.

46. As to the lack of utility in the adjournment, the EPA submits that it is not necessary for the revocation of licence appeal to be finalised in order for Mr Eveston to be able to demonstrate that he has taken all steps available to him to remove the waste from the premises.  The EPA accepted that if Mr Eveston establishes that he is unable financially to remove the waste from the premises, that would be a matter that the Court may take into account in sentencing, regardless of the outcome of the revocation of licence appeal.  The EPA accepted that Mr Eveston may also make submissions on sentencing that he has applied to the EPA to amend the financial assurance conditions of the amended notice of revocation of the licence, so as to be able to access funds to pay for the costs of removal, transportation and disposal of the waste, but that the EPA has refused to amend the conditions as sought.  This submission is open on the current facts and there is no need to use the revocation of licence appeal as a vehicle to enable the submission to be made.

47. The EPA submits similarly that Mr Eveston can make submissions on his remorse for committing the offence on the current facts. The terms of s 21A(3)(i) of the Sentencing Act do not require actual reparation for any loss or damage caused by commission of the offence to be made. Of course, if reparation has been made, that would demonstrate remorse. But remorse can still be demonstrated if the offender has acknowledged any loss or damage caused by the offender's actions: s 21A(3)(i)(ii) of the Sentencing Act.

48. The EPA submits that Mr Eveston can still remove, transport and dispose of such portion of the waste on the premises that is within his financial means to do, even if that is limited.  In short, Mr Eveston can do the best that he can.

49. This would still be the position even if Mr Eveston were to succeed in the revocation of licence appeal, and be able to access the whole amount of the financial assurance of $250,000.  The evidence is that the waste facility at which Mr Eveston is most likely to dispose of waste from the premises, the facility run by Goulburn Mulwaree Council, is likely to charge $1.2 million in tipping fees.  The financial assurance of $250,000 would only meet around 20% of that cost.  The consequence is that Mr Eveston could only remove and dispose of around 20% of the waste at the premises.  Hence, Mr Eveston will only be able to make partial reparation for the loss and damage caused by his commission of the offences.

50. The EPA submits that even if Mr Eveston were to be able to access funds and remove a portion of the waste from the premises, which might operate to mitigate the sentence that the Court would impose, this mitigating effect might be outweighed by the aggravating effect of the waste being allowed to remain on the premises for a longer period of time.  A delay in sentencing Mr Eveston will result in the waste having remained at the premises for a longer time.

51. As to the delay in sentencing, the EPA referred to the statement in R v Palu (2002) 134 A Crim R 174; [2002] NSWCCA 381 at [30]:

"Unless the further delaying of the sentencing of the offender is wholly justified in order to ensure that the sentencing discretion is properly exercised, there will be a miscarriage of justice...Delay unavoidably results in unfairness: unnecessary delay results in injustice. Steps have been taken throughout the criminal justice process to eliminate unnecessary delay wherever possible. Unless delay in the sentencing of the offender is essential in order to ensure a just result, the Court has failed in its duty both to the offender and the community."

52. The EPA submits that there is uncertainty as to when the revocation of licence appeal is likely to be concluded.  The EPA's motion to dismiss the appeal is fixed for hearing on 28 January 2021, but judgment may be reserved.  The conciliation conference in the appeal is arranged for 29 March 2021.  If no agreement is reached at the conciliation conference, the appeal will need to be fixed for hearing.  This could be many months later.  In these circumstances, the EPA submits the adjournment sought by Mr Eveston will not be for a limited period until a fixed date, such as 9 April 2021, because there is likely to be a further adjournment to await the finalisation of the revocation of licence appeal.  The total length of adjournment is therefore likely to be considerable, which weighs against the exercise of the Court's discretion to adjourn the proceedings.

The criminal proceedings should be adjourned

53. I consider it is appropriate to adjourn the criminal proceedings for a limited time to allow Mr Eveston the opportunity to see if he can succeed in his application to further amend the amended notice of revocation so as to be able to access funds to undertake the removal, transportation and disposal of waste from the premises.  My reasons include those advanced by Mr Eveston.

54. First, any action Mr Eveston is able to take to remove and dispose of waste from the premises will be of benefit to his case regarding the sentence that the Court should impose for the offences he committed in breaching conditions of the revocation of the licence requiring him to remove and dispose of waste from the premises.  The relevance of his removing and disposing of waste from the premises will be at least to the sentencing factors of the environmental harm caused or likely to be caused by his commission of the offences and the practical measures he has taken, is taking or will take to prevent, control, abate or mitigate that harm, and his remorse for committing the offences by making some reparation for any such environmental harm.

55. Mr Eveston is not currently in a financial position to undertake the removal, transportation and disposal of the waste from the premises; he needs access to the financial assurance that he is currently required by condition E1.4 of the licence (which is also a condition of the revocation of the licence) to maintain.  Such access can only be obtained if the amended notice of revocation of the licence is amended to allow access to the financial assurance.

56. As Mr Eveston submitted, he ought to be given a full opportunity to present his plea in mitigation at the sentencing hearing in the best way he is able to do.  Mr Eveston's plea at mitigation will be strengthened by going beyond mere words of apology to take meaningful action to make reparation for his actions.  He need not be restricted to making submissions along the lines the EPA submitted that he is able to make on the current facts, but rather should be given the opportunity to better advance his position by endeavouring to remove and dispose of at least a portion of the waste on the premises.

57. Secondly, putting aside for the moment the question raised by the EPA's motion of whether the Court has jurisdiction to deal with the revocation of licence appeal, the revocation of licence appeal cannot be said to be without any prospects of success.  Mr Eveston may not succeed in persuading the Court to amend the conditions of the amended notice of revocation of the licence in the precise terms he has requested, or in being able to access the whole of the amount of the financial assurance, but he might be able to secure access to at least some funds that could be used for the purpose of paying for the removal and disposal of some of the waste from the premises.  Such actions might not effect full compliance with the conditions for removal and disposal of waste from the premises or full rehabilitation of the premises, but they will be a start and will be of some benefit.

58. Thirdly, the adjournment of the criminal proceedings sought is for a definite and limited period of time, until the earlier of the date of disposal of the revocation of licence appeal or the date of 9 April 2021, which is after the conciliation conference in the revocation of licence appeal has been held on 29 March 2021 and the directions hearing has been held on 6 April 2021.  By either date, the parties and the Court will know if there is any real prospect that Mr Eveston will be able to access funds to pay for the removal, transportation and disposal of waste from the premises.  The criminal proceedings will not be adjourned generally.

59. Fourthly, the criminal proceedings have not yet been fixed for a sentencing hearing and will not be fixed for a sentencing hearing before the date to which the criminal proceedings will be adjourned.  The adjournment will not, therefore, affect the orderly and efficient management and disposal of the criminal proceedings.

60. Fifthly, the period of the adjournment will be over the Court's fixed law vacation so that no action in the criminal proceedings has been or is likely to be directed to be taken before the date to which the proceedings are adjourned.

61. Sixthly, there are no countervailing interests of justice or public interest that would justify refusing the adjournment.  The adjournment will not cause stress or distress to any victim (there is none) or prejudice to the EPA as prosecutor.  A delay in the sentencing hearing may mean that waste will have remained on the premises for a longer period of time but the holding of a sentencing hearing will not cause the waste to be removed any quicker.  The penalty that the EPA seeks for the Court to impose on Mr Eveston for the offences is a fine, not an order for removal of the waste.  Denial of an adjournment is therefore not likely to cause the waste to be removed from the premises any sooner, indeed the contrary is true.  Granting the adjournment has better prospects of allowing the waste to be removed sooner, by enabling Mr Eveston to have access to funds to be used to remove and dispose of the waste.

62. For these reasons, I consider it is appropriate to adjourn the proceedings as sought in the notice of motion as amended.

63. The Court:

1. Orders that proceedings 2020/145596 and 2020/145597 are adjourned to:

1. Seven days after the disposal of Class 1 proceedings 2020/319495 or

2. 9 April 2021,

whichever occurs first.

2. Grants the parties leave to relist the proceedings on 3 days' notice.

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Decision last updated: 21 December 2020