Environment Protection Authority v HTT Huntley Heritage Pty Ltd - [2003] NSWLEC 142

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v HTT Huntley Heritage Pty Ltd [2003] NSWLEC 142

PARTIES:
PROSECUTOR
Environment Protection Authority
DEFENDANT
HTT Huntley Heritage Pty Ltd

FILE NUMBER(S): 50066 of 2002

CORAM: Pearlman J

KEY ISSUES: Environmental Offences :- breach of licence conditions - continuing offence - mitigation - penalty - restoration and prevention order - publication order

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Protection of the Environment Operations Act 1997 s 64, s 241, s 245, s 250
Waste Minimisation and Management Act 1995

CASES CITED: Environment Protection Authority v HTT Huntley Heritage Pty Ltd [2003] NSWLEC 76;
Environment Protection Authority v Port Kembla Copper Pty Ltd (2001) 115 LGRA 391;
R v Olbrich (1999) 199 CLR 270

DATES OF HEARING: 12/06/2003; 13/06/2003

DATE OF JUDGMENT:
06/20/2003

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr T G Howard (Barrister)
SOLICITORS
Environment Protection Authority
DEFENDANT
N/A
SOLICITORS
N/A

JUDGMENT:

50066 of 2002

Pearlman J
20 June 2003

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

HTT HUNTLEY HERITAGE PTY LTD

Defendant

Judgment

Introduction

1 On 11 April 2003, the Court found the defendant, HTT Huntley Heritage Pty Ltd, had contravened condition L5.3 of its environment protection licence – see Environment Protection Authority v HTT Huntley Heritage Pty Ltd [2003] NSWLEC 76 (“the principal judgment”).

2 The proceedings were adjourned so that submissions could be made on conviction and penalty. At the adjourned hearing, the defendant was unrepresented by counsel or solicitors, and Mr D Hickie, a director of the defendant, was authorised by the defendant to adduce evidence and make submissions on its behalf.

3 The facts as found appear in the principal judgment, and need not be repeated here in any detail. Suffice it to say that the defendant was engaged in the rehabilitation of the Huntley Colliery at Avondale (“the site”) and it held an environment protection licence (“the licence”) in respect of its activities. Condition L5.3 of the licence limited the nature of waste material that could be brought upon the site to virgin excavated natural material (VENM) or non-hazardous bulk agricultural or crop waste that is not putrescible. It was found that the defendant had accepted at the site approximately 37,000 tonnes of waste, being construction and demolition material, commencing from 15 March 2001 and continuing until 29 August 2001.

4 Contravention of a condition of a licence is an offence under s 64(1) of the Protection of the Environment Operations Act 1997 (“the POEO Act”). In the case of a corporation, it attracts a maximum penalty of $250,000, and a further maximum penalty of $120,000 for each day the offence continues.

5 The prosecutor seeks the imposition of a penalty, together with a daily penalty. In addition it seeks orders under pt 8.3 of the POEO Act requiring the removal of the waste under s 245 and the publication of the offence under s 250.

The degree of culpability

6 The prosecutor submits that the defendant’s contravention of the licence was not…

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: [2003] NSWLEC 142
Decision Date: 06/20/2003

CaseChat Overview and Summary

The matter before the court was a prosecution by the Environment Protection Authority against HTT Huntley Heritage Pty Ltd, a company engaged in the rehabilitation of the Huntley Colliery at Avondale. The prosecution alleged that the defendant had contravened condition L5.3 of its environment protection licence by accepting approximately 37,000 tonnes of construction and demolition waste at the site, which was not permitted under the terms of the licence. The legal issues for the court to decide included the degree of culpability of the defendant in contravening the licence, the extent of the harm caused or likely to be caused to the environment, and the appropriate penalty for the offence. The court found that the defendant's contravention of the licence was deliberate and culpable, as it had full knowledge of the licence conditions and the nature of the waste it was accepting. The court also found that the contravention was likely to cause environmental harm due to the presence of lead and asbestos in the waste. However, the court did not find sufficient evidence to conclude that the harm was caused by the commission of the offence. The court imposed a penalty of $60,000, which is 24% of the maximum penalty, and a daily penalty of $3000 for each of the 19 days during which the defendant continued to accept construction and demolition waste in contravention of its licence. The court also ordered the defendant to cause an advertisement to be placed in the Illawarra Mercury and the Sydney Morning Herald and to send a notice to all shareholders of the defendant, publicising the offence and its environmental and other consequences and any other orders made against the person.

The court did not impose orders under s 245 of the Protection of the Environment Operations Act 1997, which would have required the removal of the waste to a licensed waste facility, as the court considered it unjustified to preclude the defendant from exploring options for using the waste for the purpose of rehabilitating the site. The court also did not impose orders under s 250 of the Act, which would have required the defendant to take specified action to publicise the offence and its environmental and other consequences and any other orders made against the person, as the court considered it appropriate to impose such an order. The court ordered the defendant to pay the costs of the prosecutor as determined in accordance with the Land and Environment Court Act 1979.

Orders