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Environment Protection Authority v Fletcher

Environment Protection Authority v Fletcher

Case [2001] NSWLEC 104 31 May 2001

Environmental Offences

Land and Property Law

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Reported Decision: 114 LGERA 187

Land and Environment Court

of New South Wales

CITATION: EPA v Fletcher [2001] NSWLEC 104

PARTIES: PROSECUTOR
Environment Protection Authority
DEFENDANT
Leslie James Fletcher

FILE NUMBER(S): 50016 of 2000

CORAM: Sheahan J

KEY ISSUES: Environmental Offences :- land used as a waste facillity without lawful authority - plea of guilty to part of charge

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Environmental Planning and Assessment Act 1979
Environmental Offences and Penalties Act 1989
Local Government Act 1919
Protection of the Environment Operations Act 1997
Waste Minimisation & Management Act 1995 s 64
Waste Minimisation & Management Regulaltion 1996
Hawkesbury City Local Environmental Plan 1989

CASES CITED: Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404;
Brown v EPA & Anor (1992) 78 LGERA 119;
EPA v Daracon Engineering Pty Ltd (1998) 97 LGERA 415;
EPA v Orange City Council (Stein J, 50045 of 1995, 23 June 1995);
Holroyd City Council v Murdoch (1994) 82 LGERA 197;
Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132;
Lizzio & Anor v Ryde Municipal Council (1983) 155 CLR 211;
Proudman v Dayman (1994) 67 CLR 536;
Regina v Dodsworth (1837) 8 Car.&P.467;
R v Minchington (1998) 104 A.Crim.R 502;
R v Olbrich (1999) 199 CLR 270;
R v Thomson [2000] NSWCCA 309;
Surrey County Council v Battersby [1965] 2 QB 194;
Taylor v Hornsby Shire Council (1990) 69 LGRA 281

DATES OF HEARING: 18/12/2000-20/12/2000, 9/02/01

DATE OF JUDGMENT:
05/31/2001

LEGAL REPRESENTATIVES:
PROSECUTOR
Barrister
Mr D Buchanan SC
Solicitors
EPA Legal Branch
DEFENDANT
Solicitor
Mr J Simpson
John Simpson & Co

JUDGMENT:

IN THE LAND AND Matter No: 50016 of 2000
ENVIRONMENT COURT Coram: Sheahan J
OF NEW SOUTH WALES 31 May 2001

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

LESLIE JAMES FLETCHER

Defendant

JUDGMENT

Introduction

1. Leslie James Fletcher is charged with causing, between about 1 July 1996 and 24 November 1998, land, which he owned, to be used as a waste facility, without lawful authority, contrary to s 64(1) of the Waste Minimisation & Management Act 1995 (“Waste Act”).

2. Pursuant to s 8G(1)(b) of the Environmental Offences & Penalties Act 1989 the maximum penalty for the offence charged is $60,000. No daily penalty, and no remediation order under s 14, are sought by the Prosecutor (“EPA”).

3. Section 64(2) of the Waste Act provides that the onus of proving “lawful authority” lies on the person asserting he had it. Mr Buchanan SC, for the EPA, conceded that the onus in this regard was “to the civil standard” (T150 L34-42). R v Olbrich (1999) 199 CLR 270 (at 281).

4. The charge period divides conveniently into four components:

(a) in respect of the period between 1 July 1996 and 29 June 1997, the Prosecutor contends that Fletcher required a development consent from Hawkesbury City Council (“Council”) for his landfill activities (but no Waste Act licence), and did…

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.

Continue reading Environment Protection Authority v Fletcher

Details

AGLC: EPA v Fletcher [2001] NSWLEC 104
Case: [2001] NSWLEC 104
Decision Date: 05/31/2001

CaseChat Overview and Summary

The Land and Environment Court of New South Wales heard a case involving Leslie James Fletcher, who was charged with using his land as a waste facility without lawful authority. The court had to determine if Fletcher's actions constituted an offence under the Waste Minimisation and Management Act 1995, specifically for operating a waste facility without the necessary consents and licenses. The Environment Protection Authority (EPA) alleged that Fletcher had been using his land to store and dispose of various types of waste, including demolition materials, from September 1996 to November 1998. The key legal issues revolved around whether Fletcher had the lawful authority to conduct such activities and if his actions caused environmental harm. The court found that Fletcher had indeed operated a waste facility on his land without the required development consent from Hawkesbury City Council and a Waste Act licence from the EPA. The court also determined that Fletcher's activities had caused significant environmental harm, including soil erosion, increased salinity, and contamination with toxic chemicals. The court convicted Fletcher and imposed a fine of $36,000, along with an order to pay the costs of the prosecution.

Orders