Environment Protection Authority v Excel Fuels Pty Limited - [2002] NSWLEC 160

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Excel Fuels Pty Limited [2002] NSWLEC 160

PARTIES:
PROSECUTOR:
Environment Protection Authority
DEFENDANT:
Excel Fuels Pty Limited

FILE NUMBER(S): 50138 of 2001

CORAM: Bignold J

KEY ISSUES: Environmental Offences :- pollution of waters-mitigating circumstances-application for discharge without conviction.

LEGISLATION CITED: Protection of the Environment Operations Act 1997, s 120
Crimes (Sentencing Procedure) Act 1999, s 10

CASES CITED: Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304;
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 701/702;
Environment Protection Authority v BHP Steel (AIS) Pty Ltd (2001 NSWLEC 214;
Environment Protection Authority v Byron Shire Council (2001) NSWLEC 54;
Environment Protection Authority v Devro-Teepak (2001) NSWLEC 275;
Environment Protection Authority v Haylan (2001) NSWLEC 89)· Environment Protection Authority v Middle Harbour Constructions (2002) 119 LGERA 440;
Environment Protection Authority v Timber Industries Ltd (2001) NSWLEC 25;
The Queen v Olbrich (1999) 199 CLR 270;
Thorneloe v Filipowski (2001) 116 LGERA 56

DATES OF HEARING: 13 June 2002

DATE OF JUDGMENT:
09/13/2002

LEGAL REPRESENTATIVES:

PROSECUTOR:
Mr G Plath, Solicitor
SOLICITORS:
Solicitor Environment Protection Authority
DEFENDANT:
Mr D Olney, Solicitor
SOLICITORS
Booth Brown Samuels and Olney

JUDGMENT:

IN THE LAND AND

Matter No. 50138 of 2001

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

13 September 2002

ENVIRONMENT PROTECTION AUTHORITY

PROSECUTOR

EXCEL FUELS PTY LIMITED (ACN 003 363 835)

DEFENDANT

JUDGMENT

Bignold J:

A. INTRODUCTION

1. The Defendant has pleaded guilty to the charge of an offence against the Protection of the Environment Operations Act 1997 (the PEO Act) in that on or about 13 December 2000 at Lithgow it polluted waters.

2. According to the Particulars endorsed upon the Summons—

(i) the pollutant was “matter containing diesel fuel and/or petroleum product and/or oil”;

(ii) the waters were “a stormwater drain leading to Farmers Creek and downstream thereof”; and

(iii) the manner in which the pollution occurred was “the transfer of the pollutant from a bunded area at the premises at or near the corner of Main Street and Enfield Avenue, Lithgow, to an oily water Separator from which it was pumped to the waters”.

3. The PEO Act, s 120(1) and (4) respectively provide as follows:

(1) A person must not pollute waters.

…….

(4) A person who contravenes this section is guilty of an offence.

4. The terms “pollution” and “waters are terms defined very expansively by the Dictionary to the PEO Act as is the expression “water pollution or pollution of waters”.

5. It is clear that the aforesaid particulars of the offence fall within the ambit of those expansively defined terms.

6. The PEO Act, s 123 prescribes a maximum penalty of $250,000 for an offence under Part 5.3 (which includes s 120) committed by a corporation.

7. The only issue for decision by the Court is sentence, in respect…

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: [2002] NSWLEC 160
Decision Date: 09/13/2002

CaseChat Overview and Summary

The case before the court was an appeal by the Environment Protection Authority (EPA) against a decision of the Land and Environment Court. The defendant, Excel Fuels Pty Limited, a fuel distributorship, had pleaded guilty to a charge of polluting waters by transferring diesel fuel from a bunded area to an oily water separator, from which it was pumped into a stormwater drain leading to Farmers Creek. The court was required to decide on the appropriate penalty for the offence, with the EPA arguing for a conviction and penalty, and the defendant arguing for a discharge without conviction or a reduced penalty due to mitigating factors. The court considered the defendant's lack of proper training and procedures, the seriousness of the offence, and mitigating factors such as the defendant's cooperation with authorities and the accidental nature of the incident. The court found that while the offence was serious, the mitigating factors warranted a 50% reduction in the penalty. The court imposed a penalty of $25,000, representing 10% of the maximum penalty, and ordered the defendant to pay the EPA's legal costs.

Orders