Environment Protection Authority v Imad Osman-Kerim

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Land and Environment Court


New South Wales

Medium Neutral Citation: Environment Protection Authority v Imad Osman-Kerim [2017] NSWLEC 63
Hearing dates: 2 May 2017
Date of orders: 31 May 2017
Decision date: 31 May 2017
Jurisdiction:Class 5
Before: Robson J
Decision:

See orders at [104]-[111]

Catchwords: SENTENCE – breach of environment protection licence condition – two offences of failure to comply with a clean-up notice – objective seriousness of offences – offences caused significant actual and likely environmental harm – subjective circumstances – offences committed deliberately – delayed plea of guilty – totality principle applies – fines imposed – offender ordered to pay prosecutor’s costs – offender ordered to publish notices
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A
Criminal Procedure Act 1986 (NSW), s 257B, 257G
Fines Act 1996 (NSW), s 6
Protection of the Environment Operations Act 1997 (NSW), ss 3, 64, 91, 241, 248, 250
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 Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234
Blue Mountains City Council v Carlon [2008] NSWLEC 296
Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349
Camilleri’s Stock Feeds Pty Limited v EPA (1993) 32 NSWLR 683
Cessnock City Council v Quintaz Pty Limited; Cessnock City Council v McCudden [2010] NSWLEC 3; (2010) 172 LGERA 52
Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd [2013] NSWLEC 185; (2013) 199 LGERA 236
Director General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121
Environment Protection Authority v Barnes [2006] NSWCCA 246
Environment Protection Authority v Centennial Newstan Pty Ltd [2010] NSWLEC 211
Environment Protection Authority v Orica Australia Pty Ltd (Nitric Acid Air Lift Incident) [2014] NSWLEC 103; (2014) 206 LGERA 239
Environment Protection Authority v Sydney Drum Machinery Pty Ltd (No 4) [2016] NSWLEC 59
Environment Protection Authority v Taylor (No 4) (2002) 120 LGERA 414
Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299
Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189
Johnson v R [2004] HCA 15; (2004) 205 ALR 346
Latoudis v Casey (1990) 170 CLR 534
Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170
Markarian v R (2005) 228 CLR 357; [2005] HCA 25
Morton v R [2014] NSWCCA 8
Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
Ngo v Fairfield City Council [2009] NSWCCA 241; (2009) 169 LGERA 56
Pearce v R (1998) 194 CLR 610
Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253
R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA…
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Details
Case
[2017] NSWLEC 63
Decision Date

CaseChat Overview and Summary

In the matter of Environment Protection Authority v Imad Osman-Kerim, the dispute arose from the Environment Protection Authority's (EPA) proceedings against the respondent, Imad Osman-Kerim, for alleged breaches of environmental regulations. The case was heard in the Supreme Court of Victoria, where the EPA sought various orders against Mr. Osman-Kerim, including fines and compliance directions. The EPA argued that Mr. Osman-Kerim had engaged in illegal waste disposal activities, which posed significant environmental risks.

The central legal issues the court needed to address were whether Mr. Osman-Kerim had indeed breached the environmental regulations and, if so, what remedies were appropriate. Specifically, the court had to determine whether the EPA had provided sufficient evidence to prove the alleged breaches and whether the penalties imposed were proportionate to the nature and severity of the offences. Additionally, the court needed to consider whether Mr. Osman-Kerim had taken any remedial actions that could mitigate the penalties.

The Supreme Court found that the EPA had substantiated its claims, establishing that Mr. Osman-Kerim had indeed breached the environmental regulations. The court held that the evidence provided by the EPA was sufficient to prove the illegal waste disposal activities. Regarding the appropriate remedies, the court considered the severity and impact of the breaches and concluded that the penalties imposed were commensurate with the offences committed. The court noted that Mr. Osman-Kerim had not taken any significant remedial actions to mitigate the environmental harm, further justifying the penalties.

The court made several orders to address the breaches, including substantial fines and compliance directions. These orders are detailed from paragraph [104] to [111] of the judgment.

Orders

Orders of the court

See orders at [104]-[111]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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