Environment Protection Authority v Floyd - [2004] NSWLEC 214

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Floyd [2004] NSWLEC 214

PARTIES:
PROSECUTOR:
Environment Protection Authority
DEFENDANT:
Floyd

FILE NUMBER(S): 50053 of 2003

CORAM: Bignold J

KEY ISSUES: Environmental Offences :- Director of company contravening Act-being occupier of land and permitting it to be used as a waste facility-whether sentence should have regard to existing significant civil liability imposed on Defendant-whether additional penalty offends rule against double jeopardy

LEGISLATION CITED: Protection of the Environment Operations Act 1997, ss 144 and 169
Environmental Planning and Assessment Act 1979, ss 122-125, 127

CASES CITED: Australian Oil Refining Pty Ltd v Cooper (1987) 11 NSWLR 277;
Blacktown City Council v Reid [2003] NSWLEC 120;
Blacktown City Council v Wilkie and Ors [2001]NSWLEC 162;
Gray v Motor Accident Commission (1998) 196 CLR 1;
Hawkesbury City Council v Mushroom Composters Pty Ltd (1997) 96 LGERA 12;
Pearce v The Queen (1998) 194 CLR 614;
Penrith City Council v 24/7 Waste Bins Pty Ltd [2002] NSWLEC 186;
R v Hoar (1981) 148 CLR 32;
R v Thompson (2000) 49 NSWLR 383;
Wilkie v Blacktown City Council (2002) 121 LGERA 444;
Witham v Holloway (1995) 183 CLR 525;
Workcover Authority of NSW v State Rail Authority of NSW (2002) NSWIRC 72

DATES OF HEARING: 28/04/2004

DATE OF JUDGMENT: 05/21/2004

LEGAL REPRESENTATIVES:

PROSECUTOR:
Mr G Plath, Solicitor
Solicitor for Environment Protection Authority
DEFENDANT:
Mr B Dennis, Solicitor
SOLICITORS
Dennis & Co

JUDGMENT:

IN THE LAND AND Matter No

: 50053 of 2003

ENVIRONMENT COURT Coram

: Bignold J

OF NEW SOUTH WALES

21 May 2004

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

CRAIG FLOYD (ALSO KNOWN AS MARK REID, CRAIG ADAM AND CRAIG ADAM FLOYD)

Defendant

JUDGMENT

A. INTRODUCTION

1. The Defendant has pleaded guilty to a charge of an offence against section 144(1) of the Protection of the Environment operations Act 1997 (the PEO Act) in that being a director of Graveyard Recycling Pty Ltd (ACN 094 059 417) which did contravene that provision between about 1 January 2001 and 13 July 2001, he is by virtue of the PEO Act s 169(1), taken to have contravened the same provision.

2. According to the particulars endorsed upon the Summons, the offence was committed by the Company as the occupier of land known as lot 2 in Deposited Plan 781151 situate at the corner of Grange Avenue and Richmond Road, Marsden Park by virtue of the Company permitting the land to be used as a waste facility where that land could not lawfully be used as a waste facility.

3. The Summons alleging the present charge against the Defendant was filed on 8 July 2003. No charge for an offence against the PEO Act, s 144(1) was laid against the Company which is now a defunct company. However, this fact does not preclude the laying of the charge against the Defendant or the conviction of the Defendant of such charge: vide the PEO Act, s…

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 Floyd

Details

AGLC: Environment Protection Authority v Floyd [2004] NSWLEC 214
Case: [2004] NSWLEC 214
Decision Date: 05/21/2004

CaseChat Overview and Summary

In Environment Protection Authority v Floyd, the Land and Environment Court of New South Wales heard a case brought by the Environment Protection Authority (EPA) against Craig Floyd, who was a director of Graveyard Recycling Pty Ltd. Floyd pleaded guilty to an offence under the Protection of the Environment Operations Act 1997 (PEO Act) for permitting land to be used as a waste facility without lawful authority. The court examined the legal issues of whether the sentence should consider the significant civil liability imposed on Floyd in prior proceedings and whether an additional penalty would violate the rule against double jeopardy. The court found that the substantial civil liability and punishments already imposed on Floyd precluded further punishment for the same unlawful act, adhering to the principle against double punishment. Consequently, the court imposed a reduced fine of $10,000 on Floyd, along with an order to pay legal costs. The decision underscored the importance of considering existing penalties and avoiding double punishment when imposing sentences in related civil and criminal proceedings.

Orders