Environment Protection Authority v Hochtief - [2005] NSWLEC 506

Land and Environment Court

of New South Wales

CITATION:
Environment Protection Authority v Hochtief; Thiess Pty Ltd [2005] NSWLEC 506

PARTIES:
PROSECUTOR:
Environment Protection Authority
DEFENDANTS:
Hochtief; Thiess Pty Ltd

FILE NUMBER(S):
50067-68 of 2004

CORAM:
Bignold J

KEY ISSUES:
Environmental Offences :- Polluting waters—2 Defendants create "joint venture" which causes pollution—whether penalty imposed on co-offenders should recognise that pollution was caused by joint venture.

LEGISLATION CITED:
Protection of the Environment Operations Act 1997, ss 120, 257 and 258

CASES CITED:
Empress Car Co (Abertillery) Ltd v National Rivers Authority (1998) 1AllER 481;
Environment Protection Authority v New Generation Beverages Pty Ltd & Anor [2000] NSWLEC 130;
EPA v Forestry Commission of NSW [2004] NSWLEC 751;
Haynes v CI & D Manufacturing Pty Ltd (No 2) (1995) 60 IR 455;
Mill v The Queen (1988) 166 CLR 59;
Postiglione v The Queen (1997) 189 CLR 295

DATES OF HEARING: 26/04/2005, 28/04/2005, 04/05/2005

DATE OF JUDGMENT:

09/14/2005

LEGAL REPRESENTATIVES:
PROSECUTOR:
Mr G Plath, Solicitor
SOLICITORS
Solicitor Environmental Protection Authority
DEFENDANTS:
Mr I Lloyd QC
SOLICITORS
Minter Ellison

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BIGNOLD J

14 September 2005
50067 of 2004
ENVIRONMENT PROTECTION AUTHORITY
v
HOCHTIEF AG
50068 of 2004
ENVIRONMENT PROTECTION AUTHORITY
v
THIESS PTY LTD
JUDGMENT

: HIS HONOUR

1 Each Defendant, which together created a Joint Venture known as Theiss Hochtief Joint Venture (the Joint Venture) which in July 2002 was awarded by the NSW Transport Infrastructure Development Corporation the contract for the construction of the Epping to Chatswood component of the Parramatta Rail Link Project, is charged with the same offence against s 20(1) of the Protection of the Environment Operations Act 1997 (the PEO Act) in that on or about 27 October 2003 at or near Wicks Road, Macquarie Park, it polluted waters.

2 According to the Particulars endorsed upon each Summons:

Liquid from a water treatment plant; and/or soil, earth, mud, stones, and/or similar inorganic matter; and/or liquid containing suspended solids; and/or nitrogen; and/or phosphorous;

Being the occupier of premises from which the Pollutants entered a service trench leading to a stop valve on Wick Road; and/or operating a water treatment plant or causing a water treatment plant to be operated in such a manner that liquid containing the Pollutants overflowed from a pH tank; and/or omitting to repair or to cause the repair of a hole in the wall of a bunded area into which the Pollutants entered;

- entered the Waters; and/or

- were placed in a position where they fell or descended into the Waters; and/or

- were placed in a position where they were likely to fall or descend into the Waters.

3 Section 120(1) of the PEO Act provides as follows:

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: [2005] NSWLEC 506
Decision Date: 09/14/2005

CaseChat Overview and Summary

The case of Environment Protection Authority v Hochtief involved the Environment Protection Authority prosecuting Hochtief AG and Thiess Pty Ltd for an offence under the Protection of the Environment Operations Act 1997. The defendants had entered a joint venture for the construction of the Epping to Chatswood component of the Parramatta Rail Link Project. They were charged with polluting waters at or near Wicks Road, Macquarie Park. The defendants pleaded guilty to the charge. The primary legal issue was how to determine the appropriate penalty for each defendant, given that the offence was committed by the joint venture, which lacks legal personality. The defendants argued for an equal apportionment of the penalty, while the prosecutor argued for separate consideration of each defendant's culpability. The court held that the penalty should be determined by considering the objective gravity of the offence and the indistinguishable culpability of the defendants, followed by equal apportionment to ensure parity.

The court found that the pollution incident was caused by the joint venture, which could not be charged due to its lack of legal personality. The court decided to apportion the penalty equally between the defendants, taking into account the objective gravity of the offence and the indistinguishable culpability of each defendant. The court found that a penalty of $24,000 was appropriate, reflecting the objective seriousness of the offence and significant mitigating factors. This penalty was then equally apportioned between the defendants, resulting in each defendant being fined $12,000. The court also ordered that each defendant pay half of the agreed costs of $21,000. The exhibits were retained on the court file.

Orders