Environment Protection Authority v Haylan - [2001] NSWLEC 289

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Haylan and Anor [2001] NSWLEC 289

PARTIES:
PROSECUTOR
Environment Protection Authority
FIRST DEFENDANT
Kenneth William Haylan
SECOND DEFENDANT
WWLS Blayney Pty Limited

FILE NUMBER(S): 50033-50036 of 2001

CORAM: Cowdroy J

KEY ISSUES: Environmental Offences :-

LEGISLATION CITED: Pollution Control Act 1970
Protection of the Environment Operations Act 1997 s 120, 169, 241 and 242

CASES CITED: Axer Pty Limited v Environment Protection Authority (1993) 113 LGERA 357;
Camilleri's Stock Feed Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683;
Environment Protection Authority v Orange City Council [1995] NSWLEC 103;
Environment Protection Authority v Dubbo City Council (1994) 2 LGERA 361 ;
Lowe v The Queen (1984) 154 CLR 606;
McDonagh (on behalf of Great Lakes Council) v Birdon Dredging Pty Limited (1998) 99 LGERA 198;
Pearce v The Queen (1998) 194 CLR 610;
Ryan v The Queen (2001)179 ALR 193;
R v Olbrich (1999) 199 CLR 270 ;
R v Postiglione (1997) 189 CLR 295

DATES OF HEARING: 3/12/01

DATE OF JUDGMENT:
12/14/2001

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr T Howard (Barrister)
SOLICITORS
Environmental Protection Authority
DEFENDANTS
Mr P Givorshner (Barrister)
SOLICITORS
N/A

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES MATTER No. 50033-36 of 2001
CORAM: Cowdroy J
DECISION DATE: 14/12/01

Environment Protection Authority

Kenneth William Haylan

WWLS Blayney Pty Limited

JUDGMENT

1. The second defendant has pleaded guilty to two charges pursuant to s 120 of the Protection of the Environment Operations Act 1997 (“the PEO Act”). The charges allege that the defendant polluted waters of the unnamed creek near Blayney by permitting phosphorous compounds in waste water from a laundry to be discharged.

2. The first defendant has also pleaded guilty to the two offences having been charged as a director of the second defendant pursuant to s 169 of the PEO Act.

3. The Court is therefore required to impose a penalty in respect of each offence.

Facts

4. The prosecutor and defendants have relied upon a Statement of Agreed Facts. Such facts were submitted in preference to the admission of affidavit evidence. Accordingly the Court is restricted to the facts set out in the statement for the purpose of assessing penalty. The prosecutor and defendants also rely upon a Joint Report of Technical and Environmental Considerations prepared by Mr Paul Rendell and Mr Noel Child (“the report”).

Effluent disposal system

5. The defendants manage an industrial laundry business (“the laundry”) at Blayney in central west NSW that is owned by a joint venture comprising Shreelane Pty Limited, Warra Pty Limited and CDC Nominees (WWLS) Pty Limited (“the joint venture”). The laundry has been in operation since 1991 and currently employs approximately 40 people.

6. The laundry generates, on average, 60,000 litres of effluent every day. Such effluent is disposed of by means of a spray irrigation system comprising a holding dam of a capacity of 3.6 megalitres and a connected series of sprinklers located on…

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.

Keep reading for free

Create a free CaseChat account to read Environment Protection Authority v Haylan and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2001] NSWLEC 289
Decision Date: 12/14/2001

CaseChat Overview and Summary

The Land and Environment Court of New South Wales dealt with a case where the Environment Protection Authority (EPA) prosecuted Kenneth William Haylan and WWLS Blayney Pty Limited for environmental offences under the Protection of the Environment Operations Act 1997. The defendants pleaded guilty to charges of polluting waters of an unnamed creek near Blayney by permitting the discharge of phosphorous compounds from their industrial laundry's wastewater. The Court was tasked with determining the appropriate penalty for each offence.

The key legal issues involved assessing the extent of harm caused or likely to be caused to the environment, considering practical measures that could have been adopted to avoid the harm, and evaluating the foreseeability and control the defendants had over the events. The Court had to balance these considerations with the need for general deterrence while also taking into account the defendants' pleas of guilty and the first defendant's good character.

The Court concluded that although the incidents did not cause actual harm, there was a potential for serious environmental harm. It found that while the defendants could have taken additional measures to prevent the harm, such as operating the effluent disposal system over the entire required area and better delegating responsibilities, these measures might not have prevented the specific harm caused by the severed hoses. The Court also noted the foreseeability of the discharge during heavy rainfall and the first defendant's control over the operations.

Taking all factors into consideration, the Court determined that the offences were less serious and imposed fines within the lowest range for the second defendant. For the first defendant, the Court dismissed the charges due to his good character and the circumstances of the case, opting for a more lenient approach than usual for environmental offences.

In summary, the Court imposed fines on the second defendant for the two offences, while dismissing the charges against the first defendant due to his good character and the specific circumstances of the case. The second defendant was also ordered to pay the prosecutor's costs.

Orders