Environment Protection Authority v Hardt - [2007] NSWLEC 284

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Hardt [2007] NSWLEC 284

PARTIES:
Environment Protection Authority
PROSECUTOR
Bernard Hardt
DEFENDANT

FILE NUMBER(S): 50066 of 2004

CORAM: Preston CJ

KEY ISSUES: Environmental Offences :- sentencing - use of land as waste facility without lawful authority - substantial environmental harm - harm forseeable - practical measures could have been taken to prevent harm - control over causes - no prior convictions - late contrition and remorse - assistance to authorities - payment of prosecutor's costs - order for restoration of environment harmed - fine

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 3A(a)-(b), (e)-(g), s 21A(2)(g), s 21A(3)(e), (i), (m), s 23(1)
Fines Act 1996 s 6
Protection of the Environment Operations Act 1997 s 144(1), s 191, s 241(1)(a)-(e), s 245
Protection of the Environment Operations Amendment Act 2005 Sch 1 [70]
Protection of the Environment Operations (Waste) Regulation 2005 cl 42

CASES CITED: Environment Protection Authority v Barnes [2006] NSWCCA 246;
Environment Protection Authority v Hardt (2006) 148 LGERA 61;
R v Rahme (1989) 43 A Crim R 81

DATES OF HEARING: 30 April 2007
1 May 2007

EX TEMPORE JUDGMENT DATE: 1 May 2007

LEGAL REPRESENTATIVES:
PROSECUTOR
DA Buchanan SC
SOLICITORS
Environment Protection Authroity
DEFENDANT
Mr I Hemmings (barrister)
SOLICITORS
Hones Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

1 May 2007

50066 OF 2004

ENVIRONMENT PROTECTION AUTHORITY V HARDT

JUDGMENT

1 HIS HONOUR: After a trial the Court has found Mr Hardt guilty of committing an offence against s 144(1) of the Protection of the Environment Operations Act 1997: see Environment Protection Authority v Hardt (2006) 148 LGERA 61. The Court now needs to sentence Mr Hardt.

Evidence

2 A sentence hearing has been held. In addition to the evidence tendered at the trial, the prosecutor tendered a statement of agreed facts; photographs and tables prepared by Mr Geoff Winning, an ecologist; and agreed orders under s 245 of the Protection of the Environment Operations Act to mitigate the environmental harm caused by the offence.

3 The prosecutor read an affidavit of Mr David Lane, an expert in industrial remediation, on the means of remediating the waste deposited on the land. Mr Lane stated:

(a) Removal of the waste would be prohibitively expensive. It would involve considerable excavation by an excavator and require a very large number of vehicle movements to transport the material as well as removing vegetation to obtain vehicular access to the waste. Removal of the waste would encounter property access problems as most of the access road is not suitable for short-term high volume truck movements. The cost of removal of the waste would exceed one million dollars although some of the material might be able to be recycled. Land fill fees alone would be around $907,000 if all the imported material was disposed of at a licensed inert and solid waste land fill;

(b) Leachate collection involves the containment of all…

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 Hardt

Details

AGLC: Environment Protection Authority v Hardt [2007] NSWLEC 284
Case: [2007] NSWLEC 284
Decision Date: 1 May 2007

CaseChat Overview and Summary

In the matter of a prosecution by the Environment Protection Authority against Bernard Hardt, the Land and Environment Court of New South Wales considered the appropriate penalty for Hardt's commission of an offence under the Protection of the Environment Operations Act 1997. Hardt had been found guilty of using his land as a waste facility without lawful authority, causing substantial environmental harm. The Court considered the objective gravity of the offence, including the foreseeability of harm, the potential for harm to human health, and the substantial environmental harm caused. The Court also considered the subjective circumstances of Hardt, including his lack of prior convictions, his contrition and remorse, and his cooperation with the Environment Protection Authority. The Court determined that an appropriate fine for Hardt was $12,000, taking into account his financial means, the costs of remediation, and the agreed sum of $105,000 for the prosecutor's legal costs. The Court also made orders under the Protection of the Environment Operations Act 1997 for the remediation of the waste and the restoration of the environment.

Orders