Environment Protection Authority v Hochtief AG - [2006] NSWLEC 200

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Hochtief AG [2006] NSWLEC 200

PARTIES:
PROSECUTOR:
Environment Protection Authority
DEFENDANT:
Hochtief AG

FILE NUMBER(S): 50021; 50022 of 2005

CORAM: Biscoe J

KEY ISSUES: Environmental Offences - Prosecution :- intentional noise pollution – sentencing considerations

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 ss 21A, 22, 22A, 23
Protection of the Environment Operations Act 1997 ss 64(1), 241

CASES CITED: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357;
Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304;
Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683;
Chivers v Western Australia [2005] WASCA 97;
Dennison v Tasmania [2005] TASSC 54;
Environment Protection Authority v Bega Valley Shire Council [1998] NSWLEC 187;
Environment Protection Authority v Metalcorp Recyclers [2000] NSWLEC 259;
Environment Protection Authority v Metalcorp Recyclers Pty Ltd (2004) 136 LGERA 125;
Environment Protection Authority v Pasminco Broken Hill Mine Pty Ltd [2002] NSWLEC 70;
Environment Protection Authority v Port Kembla Copper Pty Ltd (2001) 115 LGERA 391;
Markarian v The Queen (2005) 79 ALJR 1048;
Moore v R [2005] NSWCCA 407;
R v Dib [2003] NSWCCA 117;
R v Holder [1983] 3 NSWLR 245;
R v MacBain [2005] NSWCCA 358;
R v Olbrich (1999) 199 CLR 270;
R v O’Neill [1979] 2 NSWLR 582;
R v Otto [2005] NSWCCA 333;
R v Sladic (2005) 92 SASR 36;
R v Thomson (2000) 49 NSWLR 383;
State Pollution Control Commission v CSR Ltd (1989) 75 LGRA 1

DATES OF HEARING: 10/04/2006-11/04/2006

DATE OF JUDGMENT:
04/28/2006

LEGAL REPRESENTATIVES:
PROSECUTOR:
Mr Rushton SC
SOLICITORS
Environment Protection Authority
DEFENDANT:
Mr I Lloyd QC
SOLICITORS
Minter Ellison

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

28 April 2006

50021 and 50022 of 2005

ENVIRONMENT PROTECTION AUTHORITY v HOCHTIEF AG (ARBN 101525651)
JUDGMENT

HIS HONOUR:
A. INTRODUCTION

1 The defendant Hochtief AG, with its joint venturer Thiess Pty Ltd, was the New South Wales State Government contractor for the construction of the Epping to Chatswood component of the Parramatta Rail Link Project. The defendant has pleaded guilty to two noise pollution charges concerning its excavation activities over the Queen’s Birthday long weekend in June 2004. Most of the facts are agreed. The main issues are whether the defendant committed the offences intentionally, or only as a result of failure to adequately supervise a subcontractor; and the appropriate penalty.

2 The first charge is that between about 10 am on Sunday 13 June 2005 and 1:50 am on Monday 14 June 2004 (a public holiday) the defendant committed an offence against the Protection of the Environment Operations Act 1997, s 64(1) in that it was the holder of a licence, a condition of which was contravened by a person. The second charge is in the same terms except that it relates to the period between…

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 Hochtief AG 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: [2006] NSWLEC 200
Decision Date: 04/28/2006

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Biscoe J heard the case of Environment Protection Authority v Hochtief AG. The defendant, Hochtief AG, was convicted of two charges of noise pollution in relation to its construction of the Epping to Chatswood component of the Parramatta Rail Link Project. The charges arose from the defendant's excavation activities over the Queen's Birthday long weekend in June 2004. The key issues were whether the defendant committed the offences intentionally or as a result of inadequate supervision of a subcontractor, and the appropriate penalty. The court found that the offences were intentional, based on an arrangement between a representative of the defendant and the subcontractor, and the actual harm caused to nearby residents was serious. In sentencing, the court considered the guilty pleas, the defendant's cooperation with the prosecutor, and the steps taken to prevent a recurrence of such incidents. The court also took into account the principle of totality, which requires that a total fine for multiple offences does not exceed what is called for in the whole of the circumstances. The court ordered the defendant to pay a fine of $44,000, pay the prosecutor's costs of $79,000, and publish an advertisement concerning its guilt and the penalty in the Financial Review and the Sydney Morning Herald.

Orders