Environment Protection Authority v Lithgow City Council

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Land and Environment Court


of New South Wales


CITATION: Environment Protection Authority v Lithgow City Council [2007] NSWLEC 695
PARTIES:

PROSECUTOR
Environment Protection Authority

DEFENDANT
Lithgow City Council
FILE NUMBER(S): 50046 of 2006; 50047 of 2006
CORAM: Preston CJ
KEY ISSUES: Environmental Offences :- sentencing - breach of conditions of environment protection licence - conditions requiring pollution studies and reduction programs - systemic failure in management and operation of premises - failure to prioritise asset management and need for regulatory compliance - conscious decision not to comply for financial reasons - non-compliance continued over lengthy periods - potential for environmental harm - forseeable risk of harm - practical measures to prevent risk of harm - control over causes - prior criminal convictions for breach of condition of an environment protection licence - plea of guilty - contrition and remorse - sentence to achieve retribution, denunciation and deterence (both general and specific) - penalty of fine, orders under s 245 of Protection of the Environment Operations Act 1997 and costs order
LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 3A
Protection of the Environment Operations Act 1997 s 64(1), s 241(1), s 245
CASES CITED: Axer Pty Limited v Environment Protection Authority (1993) 113 LGERA 357;
Bentley v BGP Properties Pty Limited (2006) 145 LGERA 234;
Byres v Leichhardt Municipal Council [2006] NSWLEC 82 ;
Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683;
Environment Protection Authority v Ballina Shire Council (2006) 148 LGERA 278;
Environment Protection Authority v Barnes [2006] NSWCCA 246 (17 August 2006);
Environment Protection Authority v Lithgow City Council [2003] NSWLEC 425 (18 August 2003);
Environment Protection Authority v Sydney Water Corporation [2000] NSWLEC 156 (21 July 2000);
Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299;
Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 ;
Majury v Sunbeam Corporation Ltd [1974] 1 NSWLR 659;
Mill v The Queen (1988) 166 CLR 59;
Pearce v The Queen (1998) 199 CLR 610 ;
R v McNaughton [2006] NSWCCA 242 (11 August 2006);
R v Thomson; R v Houlton (2000) 49 NSWLR 383 ;
Veen v The Queen (No 2) (1988) 164 CLR 465 at 477;
Weininger v The Queen (2003) 212 CLR 629
DATES OF HEARING: 24 July 2007; 20 August 2007; 24 September 2007; 28 September 2007
 
DATE OF JUDGMENT: 
26 October 2007
LEGAL REPRESENTATIVES:

PROSECUTOR
Mr M Kelly (Solicitor)
SOLICITORS
Environment Protection Authority

DEFENDANT
Mr I Lloyd QC
SOLICITORS
Pike Pike & Fenwick


JUDGMENT:

        THE LAND AND
        ENVIRONMENT COURT
        OF NEW SOUTH WALES

        PRESTON CJ

        26 OCTOBER 2007

        50046 OF 2006
        50047 OF 2006

        ENVIRONMENT PROTECTION AUTHORITY V LITHGOW CITY COUNCIL

        JUDGMENT

1 HIS HONOUR: Lithgow City Council has pleaded guilty to two offences against s 64(1) of the Protection of the Environment Operations Act 1997 by contravening conditions of its environment protection licence in respect of a water treatment plant. The Court’s task is to determine the appropriate…

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Details
Case
[2007] NSWLEC 695
Decision Date

CaseChat Overview and Summary

The Environment Protection Authority brought proceedings against Lithgow City Council in the Local Court of New South Wales. The dispute centered on alleged breaches of environmental regulations by the council at the Oakey Park Water Treatment Plant, Lithgow. Specifically, the EPA accused the council of contravening environmental protection orders, including the illegal discharge of wastewater into a local creek.

The court was required to determine whether the council had indeed breached the environmental protection orders and, if so, what penalties and remedial actions should be imposed. The issues included the interpretation of the environmental protection orders, the council’s compliance with these orders, and the appropriate sanctions for any breaches.

The court found that the Lithgow City Council had indeed contravened the environmental protection orders by discharging wastewater into Farmers Creek. The court noted that the council's actions had caused environmental harm, violating the specific terms of the orders. Consequently, the court convicted the council on the charges brought by the EPA and imposed a fine. Additionally, the court ordered the council to undertake specific remedial actions at the water treatment plant, including the relining and commissioning of sludge lagoons, decommissioning of an old lagoon, and installation of a backwash diversion system. These works were intended to prevent future breaches and mitigate environmental harm. The council was also required to provide detailed reports to the EPA on the completion of these works, including evidence of the permeability achieved. Finally, the council was ordered to pay costs to the prosecutor.

Orders

Orders of the court

The Court orders that:

1. Lithgow City Council is convicted of each of the offences in proceedings no 50046 of 2006 and proceedings no 50047 of 2006 with which it is charged.

2. Lithgow City Council is fined $37,500 for the offence in proceedings no 50046 of 2006 and $11,250 in proceedings no 50047 of 2006.

3. Lithgow City Council is to:

1. Undertake the following work at the Oakey Park Water Treatment Plant, Lithgow in accordance with the specifications annexed hereto and marked “A”:

(a) Reline and commission sludge lagoon No 1 by 31 December 2007.

(b) Commission Backwash Diversion system to sludge lagoon No 1 and discontinue backwash discharge into Farmers Creek by 3 March 2008.

(c) Decommission and dry and remove sludge from lagoon No 2 by 1 April 2008.

(d) Reline and recommission sludge lagoon No 2 to enable the commissioning of the Backwash Diversion system to sludge lagoon No 2 by 9 June 2008.

2. Notify Mr Richard Whyte, Regional Manager, Bathurst Climate Change and Environment Protection Group, Department of Environment and Climate Change, PO Box 1388 Bathurst NSW 2795 within 7 days of the completion of each work milestone referred to in paragraphs 1(a) to (d) hereof.

3. Provide a written report to Mr Richard Whyte, Regional Manager, Bathurst Climate Change and Environment Protection Group, Department of Environment and Climate Change, PO Box 1388 Bathurst NSW 2795 within 14 days of the completion of all of the works specified in paragraph 1(a)-(d) hereof that includes:

(a) the date the works were completed;

(b) the permeability achieved by the works (in metres per second),

(c) documents that demonstrate or certify the permeability achieved by the works.

4. Lithgow City Council is to pay to the Registrar of the Court, for payment to the prosecutor, costs in the sum of $20,000.

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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