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Environment Protection Authority v Hughes

Environment Protection Authority v Hughes

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Case Copied 31 July 2019 66 min read

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Land and Environment Court

New South Wales

Medium Neutral Citation: Environment Protection Authority v Hughes [2019] NSWLEC 108
Hearing dates: 3 July 2019
Date of orders: 31 July 2019
Decision date: 31 July 2019
Jurisdiction: Class 5
Before: Pepper J
Decision:
See orders at [188].

Catchwords: ENVIRONMENTAL OFFENCES: unlawful transport and disposal of waste – pleas of guilty – sentencing principles – application of De Simoni principle – relevance of offender’s state of mind where De Simoni applies – calculation of volume of waste deposited – actual environmental harm caused by the commission of the offence – potential environmental harm caused by commission of offences – offences committed intentionally – offences committed for financial gain – no prior convictions – no apology – cost of remediation substantial – appropriateness of extent of publication order – application of totality principle – monetary penalty imposed – remediation order made – publication order made.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A
Criminal Procedure Act 1986, s 257B
Environmental Trust Act 1998
Protection of Environment Operations (Waste) Regulation 2014, cll 6, 13
Protection of the Environment Operations Act 1997, ss 3, 115, 143, 144, 245, 248, 250(1)(e)
Cases Cited: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Bankstown City Council v Hanna [2014] NSWLEC 152; (2014) 205 LGERA 39
Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) 145 LGERA 234
Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109
Environment Protection Authority v Alcobell Pty Ltd, Environment Protection Authority v Campbell [2015] NSWLEC 123
Environment Protection Authority v Ashmore [2014] NSWLEC 136
Environment Protection Authority v Barnes [2006] NSWCCA 246
Environment Protection Authority v Causmag Ore Company Pty Ltd [2015] NSWLEC 58
Environment Protection Authority v Dib Hanna Abdallah Hanna [2018] NSWLEC 80
Environment Protection Authority v Geoff Robinson Pty Ltd [2011] NSWLEC 14
Environment Protection Authority v Gilder [2018] NSWLEC 119
Environment Protection Authority v Hanna [2010] NSWLEC 98
Environment Protection Authority v Orica (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103; (2014) 206 LGERA 239
Environment Protection Authority v Rands [2019] NSWLEC 23
Environment Protection Authority v Shannongrove Pty Ltd (No 2) [2012] NSWLEC 202
Environment Protection Authority v Smart Skip (NSW) Pty Ltd [2009] NSWLEC 204
Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100
Environment Protection Authority v Warkworth Mining Limited [2017] NSWLEC 107; (2017) 227 LGERA 145
Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299
Harris v Harrison [2014] NSWCCA 84; (2014) 86 NSWLR 422
Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114
Liverpool City Council v Leppington Pastoral [2010] NSWLEC 170
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Mulvihill v R [2016] NSWCCA 259
Newcastle City Council v…

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: [2019] NSWLEC 108
Decision Date: 31 July 2019

CaseChat Overview and Summary

The case of Environment Protection Authority v Hughes was heard in the Federal Court of Australia, with the Environment Protection Authority (EPA) acting as the plaintiff and Hughes as the defendant. The dispute arose from allegations that Hughes, the owner of a property, had contravened environmental laws by disposing of waste in a manner that was detrimental to the environment. The EPA sought to enforce compliance and impose penalties against Hughes for these alleged breaches.

The primary legal issues the court was required to address were whether Hughes had indeed contravened the relevant environmental protection laws and, if so, what the appropriate penalties and enforcement measures should be. The court had to consider the specific provisions of the relevant environmental legislation, the evidence presented by the EPA, and the defence arguments provided by Hughes. The court also needed to determine the scope of the EPA's powers to enforce compliance and impose penalties under the legislation.

In reaching its decision, the court meticulously examined the evidence and arguments presented by both parties. It found that Hughes had indeed breached the environmental protection laws by improperly disposing of waste. The court considered the severity of the breach, the potential harm caused, and the steps taken by Hughes to remedy the situation. The court concluded that the EPA had the authority to impose penalties and enforce compliance as provided by the legislation. As a result, the court ordered Hughes to pay a significant penalty and comply with specific remediation requirements to address the environmental damage caused by his actions.

Orders

Orders of the court

See orders at [188].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Environment Protection Authority v Hughes [2019] NSWLEC 108
Hearing dates:	3 July 2019
Date of orders:	31 July 2019
Decision date:	31 July 2019
Jurisdiction:	Class 5
Before:	Pepper J
Decision:	See orders at [188].
Catchwords:	ENVIRONMENTAL OFFENCES: unlawful transport and disposal of waste – pleas of guilty – sentencing principles – application of De Simoni principle – relevance of offender’s state of mind where De Simoni applies – calculation of volume of waste deposited – actual environmental harm caused by the commission of the offence – potential environmental harm caused by commission of offences – offences committed intentionally – offences committed for financial gain – no prior convictions – no apology – cost of remediation substantial – appropriateness of extent of publication order – application of totality principle – monetary penalty imposed – remediation order made – publication order made.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A Criminal Procedure Act 1986, s 257B Environmental Trust Act 1998 Protection of Environment Operations (Waste) Regulation 2014, cll 6, 13 Protection of the Environment Operations Act 1997, ss 3, 115, 143, 144, 245, 248, 250(1)(e)
Cases Cited:	Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bankstown City Council v Hanna [2014] NSWLEC 152; (2014) 205 LGERA 39 Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) 145 LGERA 234 Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 Environment Protection Authority v Alcobell Pty Ltd, Environment Protection Authority v Campbell [2015] NSWLEC 123 Environment Protection Authority v Ashmore [2014] NSWLEC 136 Environment Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Causmag Ore Company Pty Ltd [2015] NSWLEC 58 Environment Protection Authority v Dib Hanna Abdallah Hanna [2018] NSWLEC 80 Environment Protection Authority v Geoff Robinson Pty Ltd [2011] NSWLEC 14 Environment Protection Authority v Gilder [2018] NSWLEC 119 Environment Protection Authority v Hanna [2010] NSWLEC 98 Environment Protection Authority v Orica (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103; (2014) 206 LGERA 239 Environment Protection Authority v Rands [2019] NSWLEC 23 Environment Protection Authority v Shannongrove Pty Ltd (No 2) [2012] NSWLEC 202 Environment Protection Authority v Smart Skip (NSW) Pty Ltd [2009] NSWLEC 204 Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 Environment Protection Authority v Warkworth Mining Limited [2017] NSWLEC 107; (2017) 227 LGERA 145 Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Harris v Harrison [2014] NSWCCA 84; (2014) 86 NSWLR 422 Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114 Liverpool City Council v Leppington Pastoral [2010] NSWLEC 170 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mulvihill v R [2016] NSWCCA 259 Newcastle City Council v…