Environment Protection Authority v Forgacs Engineering Pty Limited - [2009] NSWLEC 64

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Forgacs Engineering Pty Limited [2009] NSWLEC 64

PARTIES: PROSECUTOR
Environment Protection Authority
DEFENDANT
Forgacs Engineering Pty Limited

FILE NUMBER(S): 50087 of 2008

CORAM: Pain J

KEY ISSUES: PROSECUTION :- sentence - breach of environment protection licence condition - failure to prevent the emission of particles from ship repair business in breach of licence condition - potential for ecological harm - actual harm due to amenity impacts - steps taken to mitigate and prevent further harm - one of two causes of the harm foreseeable - whether loss of business after offence should be considered as extra-curial punishment - mitigating factors - publication order and order for contribution to environmental project made

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 3A, 21A, 22
Protection of the Environment Operations Act 1997 s 64, 241, 250

CASES CITED: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Environment Protection Authority v Ampol Refineries (NSW) [1998] NSWLEC 134
Environment Protection Authority v BHP Steel (AIS) Pty Ltd [2000] NSWLEC 19
Environment Protection Authority v BHP Steel (AIS) Pty Ltd [2003] NSWLEC 46
Environment Protection Authority v Biosolids Management Pty Ltd (2004) 141 A Crim R 573
Environment Protection Authority v Centennial Newstan Pty Ltd [2006] NSWLEC 732
Environment Protection Authority v Coastal Recycled Cooking Oils Pty Ltd [2008] NSWLEC 242
Environment Protection Authority v Delta Electricity [2009] NSWLEC 11
Environment Protection Authority v Incitec Limited [2003] NSWLEC 381
Environment Protection Authority v Lithgow Coal Company Pty Ltd [2003] NSWLEC 430
Environment Protection Authority v Port Kembla Copper Pty Ltd [2003] NSWLEC 256
Environment Protection Authority v Shoalhaven Starches Pty Ltd [2003] NSWLEC 107
Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419
Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189
Hoare v R (1989) 167 CLR 348
Newcastle City Council v Pace Farm Egg Products [2002] NSWLEC 66
R v Sharma (2002) 54 NSWLR 300
R v Thomson; R v Houlton (2000) 49 NSWLR 383
State Pollution Control Commission v White Wings Pty Ltd, NSWLEC, Bignold J, 1 Nov 1991, unreported
Veen v. The Queen (No. 2) (1988) 164 CLR 465

DATES OF HEARING: 29 April 2009

DATE OF JUDGMENT:
30 April 2009

LEGAL REPRESENTATIVES: PROSECUTOR
Ms K Frank (solicitor)
SOLICITORS
Department of Environment and Climate Change
DEFENDANT
Mr C Ireland
SOLICITORS
O'Sullivan Saddington

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

30 April 2009

50087 of 2008 Environment Protection Authority v Forgacs Engineering Pty Limited
JUDGMENT

1 Her Honour: The Defendant is charged with an offence under s 64(1) of the Protection of the Environment Operations Act 1997 (the POEO Act) in that it was the holder of an environment protection licence, a condition of which was breached. The offence occurred between 30…

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: [2009] NSWLEC 64
Decision Date: 30 April 2009

CaseChat Overview and Summary

The Land and Environment Court of New South Wales considered the case of Environment Protection Authority v Forgacs Engineering Pty Limited, a prosecution for the breach of an environmental protection licence condition, resulting in the emission of particles containing Tributyltin (TBT) from a ship repair business. The Court was required to determine the level of seriousness of the offence and sentence the Defendant, taking into account the objective circumstances and mitigating factors. The Court also needed to decide on any orders to be made under the Protection of the Environment Operations Act 1997.

The Court found the level of seriousness of the offence to be low due to the absence of actual harm and the temporary nature of the amenity impacts. While the emission of TBT particles had the potential to cause ecological harm, there was no evidence of actual harm. The Court also considered the foreseeability of harm, finding that while some harm was foreseeable, not all of it was. The Court concluded that the offence was not in the worst case scenario for which the maximum penalty is provided.

The Court imposed a penalty of $45,000, taking into account the mitigating factors such as the early guilty plea, contrition, and the Defendant's good environmental record. The Court also made two orders under the Protection of the Environment Operations Act 1997: a publication order to publicise the offence in the community, and an order for the Defendant to contribute $45,000 to an environmental project in the local area.

Orders