Environment Protection Authority v Graham
[2003] NSWLEC 408
•10/01/2003
>
Land and Environment Court
of New South Wales
CITATION: Environment Protection Authority v Graham [2003] NSWLEC 408 PARTIES: PROSECUTOR
Environment Protection AuthorityDEFENDANT
Kenneth Martin GrahamFILE NUMBER(S): 50016 of 2003 CORAM: Talbot J KEY ISSUES: Prosecution :- failure to comply with prevention notice - offence proved - plea of guilty - penalty
LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 10
Protection of the Environment Operations Act 1997 s 95, s 96, s 96(2), s 241CASES CITED: Oberon Council v Australian Game Meats Limited [2002] NSWLEC 96, unreported DATES OF HEARING: 01/10/2003 EX TEMPORE
JUDGMENT DATE :
10/01/2003LEGAL REPRESENTATIVES: DEFENDANT
PROSECUTOR
Ms J M Moore (Solicitor)
SOLICITORS
Environment Protection Authority
Mr A J J Thompson (Barrister)
SOLICITORS
Aubrey Brown Partners
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
50016 of 2003
1 October 2003Talbot J
- Prosecutor
- Defendant
Introduction
1 HIS HONOUR: The defendant is charged that he committed an offence against s 97 of the Protection of the Environment Operations Act 1997 (“the PEO Act”) in that on 14 March 2002 he had by that date failed to comply with a prevention notice issued to him pursuant to s 96 of the PEO Act.
2 That section, pursuant to s 96(2) in particular, allows the prosecutor, by notice in writing, to direct an occupier of premises to take action as is specified in the notice and within the period that is specified in the notice to ensure that the activity is carried out in future in an environmentally satisfactory manner.
3 The meaning of “environmentally unsatisfactory manner” is set out in s 95 of the PEO Act. The activity that is the subject of the complaint appears to be the rehabilitation of the site, following the introduction of waste to what essentially is part of an old quarry.
4 The Environment Protection Authority (“the EPA”) issued a prevention notice on 12 February 2002 (“the notice”). The notice required the defendant to carry out a number of things. The issue that is the subject of complaint in the proceedings is the failure to, within 30 days of the issue of the notice, submit a plan of management for the rehabilitation of the premises to the EPA. There were seven matters listed in the notice that needed to be addressed.
5 The defendant, it must be said, was initially dilatory in responding to the notice. Even when he eventually managed to instruct somebody to address the issue it was by then at least a month after the compliance date. It became apparent to the defendant at that time that the proposal put forward by the consultant that he engaged was significantly beyond his means. For that reason the consultant appears to have elected not to continue with the project and decided to reject any further instructions, even if they were forthcoming.
6 The matter then appears to have laboured under a lack of direct address until these proceedings were either threatened or placed on foot. It was not until 29 September 2003 that the defendant ultimately provided a plan of management prepared by a civil engineer engaged for that purpose, the document that is now before the Court, to the EPA. Understandably, the EPA has not had the opportunity to fully appreciate, understand and comment upon the contents of the plan of management submitted on behalf of the defendant on Monday of this week. However, it is clearly a document which addresses the issues, even if in some respects it does not deal with the details that the EPA was hoping it would. Nevertheless it is properly conceded, as I apprehended by the EPA through Ms Moore, who appears on behalf of the EPA, that it does substantially comply. There are some issues about whether or not it deals with both blocks of land that are the subject of the original notice but they are matters that can be resolved when there has been an opportunity to consider the plan in a measured way.
7 The history of the use of this property for the purpose which gives rise to the issue of the notice goes back to the early 1980’s when it appears that the road authority, as it then was, took material from the site and used it as a quarry and that other contractors associated with works involved in the Pacific Highway and the Freeway also used the site for the purposes of recovering road base for use in road works.
8 The defendant has been operating a landfill at the premises since approximately 1983. Much of the waste that is now the subject of complaint has been deposited in the former quarry at the premises. The defendant was granted development consent on 12 November 1985 for the restoration of the quarry. That consent was for a period of five years. After that consent expired in 1990 no further licences, permits, consents or otherwise have either been applied for or have been granted in respect of the use of the premises for either a restoration of the quarry, a waste facility, a dump or as a repository for secondhand building waste. Nevertheless, it has been operated since that time without authority.
9 The EPA has had the premises under consideration for a number of years. The first communication made by the prosecutor in regard to its concerns about restoration and clean up of the site was in July 2001 when a draft prevention notice under s 96 of the PEO Act was issued to the defendant. Since then there have been communications and formal notices culminating in the notice which is the subject of these proceedings. So that, in effect, if he did not know beforehand, the defendant has certainly known since 27 July 2001 that he had to do something about preparing a plan of management because the EPA was concerned about the uncontrolled manner in which he was conducting the task.
10 I have had the opportunity to observe Mr Graham in the witness box. I formed the view that he gave his evidence sincerely. There has been no full explanation of why the notice was not previously complied with in some way or other, except to the extent as I have explained already, the early quote that he received would have involved him in costs that was, so he says, way beyond his means. I have evidence of that cost. It was certainly some hundreds of thousands of dollars as opposed to the present estimated cost of fifty to sixty thousand dollars in respect of the plan that has now been prepared and lodged on 29 September 2003.
11 Mr Graham, I infer from listening to him and observing his actions in the witness box was no doubt aware that he had a responsibility to do something about it but his dilatoriness can be explained by frustration at the first attempt. I accept that it was not addressed with the amount of urgency that should have been applied and that he would have been better advised to seek alternative advice more expeditiously than he did. He did in that respect ask the EPA for some assistance. They declined, but I can understand that there may well have been a dilemma in his own mind. That is not altogether to the point. The scheme of the PEO Act is directed towards protecting the environment and ensuring that activities such as those which are clearly taking place on this land, or the lack of activities that are clearly taking place on this land at the present time, are not those which are conducive to the protection of the environment. Accordingly, the EPA was well-justified in issuing a notice as it did.
12 Mr Graham has no record of previous offences. For the purpose of s 241 of the PEO Act, the Court notes that it is very difficult to take into consideration any of those matters in respect of an offence which required the preparation and lodgement of a plan. The offence is not pollution per se, it is not operating a waste facility in a way that is contrary to law, it is not anything to do with the nature and type of the materials or the way in which they have been deposited on the land. It is a specific offence of failing to comply with a notice issued pursuant to the PEO Act. I would have expected the fact that there has been no harm to be self-evident, even if it had not been conceded by the prosecutor.
13 I am referred to an earlier decision in Oberon Council v Australian Game Meats Limited [2002] NSWLEC 96, unreported where there was a similar non-compliance with a requirement to provide a plan of management in circumstances not dissimilar to the present case except that the nature of the operation was quite distinct. I can see that there are quite considerable similarities to the facts in the present case.
14 To an extent Mr Graham has been his own worst enemy by being so dilatory in finding alternative means. The offence would not be so serious if matters had not been left to drift along until Monday of this week. The Court is entitled to assume, and infer, that if the prosecutor had not taken the action that it has done by issuing the summons such a plan may never have materialised.
15 The defendant formally submits, through Mr Thompson, that the Court should consider applying the provisions of s 10 of the Crimes (Sentencing Procedure) Act 1999. Apart from the fact that this is an environmental offence, an offence which attracts strict liability and the reluctance of the Court heretofore to apply the section to offences of this kind, I do not think that those circumstances apply in this case, namely in particular that the nature of the offence should be regarded as trivial. I think quite the contrary. There is sufficient serious element to this offence which justifies the imposition of a penalty.
16 Furthermore, the late response to the requirement of the notice to provide a plan of management suggests that Mr Graham has not fully appreciated just exactly what his responsibilities are. He may need some coercion in the future to comply with his obligations. Accordingly, there needs to be some element of personal deterrence as well as the usual message that needs to be sent to would be offenders that non-compliance with the provisions of an Act such as the PEO Act will not be tolerated.
17 I agree with the submission made by Ms Moore that this is not an appropriate case to impose a nominal fine. It is, in my view, appropriate for the fine to reflect firstly, the seriousness of the offence and secondly, the antecedents of the defendant. I take into account the means of the defendant not only for the purposes of determining what is a reasonable fine but also explaining the dilemma that he experienced immediately following the receipt of the notice and the initial advice he received about the cost of carrying out the management plan that was proposed by the first consultant. I think that it is appropriate that he be given the full benefit of the discount to which he is entitled for entering a plea of guilty at an early opportunity following the return of the summons in this Court.
18 Having regard to the whole of those circumstances, I propose to impose a penalty in the sum of $9,500. There has been no submissions as to costs, is there any agreement?
19 MOORE: No, your Honour.
20 HIS HONOUR: Mr Graham, stand up please. Mr Graham you have listened to the reasons and the analysis that I have given following the submissions, you have heard the evidence against you and you have heard the submissions made against you and the submissions made in your favour. The fine that I have imposed is what might be regarded as being at the lower end of the scale where the maximum penalty is $120,000. In that respect, you must regard the way in which you have been dealt with by the Court in these proceedings as being the most lenient way that you can expect to be dealt with in the circumstances of your case.
21 Now the future work that needs to be done and your dealings with the EPA are ahead of you. They may not be altogether to your liking. The unfortunate situation that you are now in is that you have been found guilty of an offence and so you now have a record. A return to this Court for any future offence in relation to the clean-up of this site or for that matter any other sort of environmental offence is going to have a much more serious element to it in terms of the consequences that flow.
22 I am sure you appreciate that but I am saying it so that there can be no doubt, if you do re-appear that you do not expect the same sympathetic treatment that Mr Thompson has persuaded the Court to give you on this occasion.
23 The formal orders of the Court are as follows:-
(1) I find the offence proved.
(2) I find the defendant guilty of the offence as charged.
(3) I order that the defendant pay a penalty by way of a fine in the sum of $9,500.
(4) I order that the defendant pay the prosecutor’s costs in such sum as may be agreed or assessed pursuant to the Land and Environment Court Act 1979 and the Regulation.
(5) The exhibits may be returned.
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