Environment Protection Authority v Lithgow City Council - [2003] NSWLEC 425

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Lithgow City Council [2003] NSWLEC 425

PARTIES: PROSECUTOR
Environment Protection Authority
DEFENDANT
Lithgow City Council

FILE NUMBER(S): 50125 of 2002

CORAM: Pain J

KEY ISSUES: Prosecution :- guilty plea - failure to comply with licence condition requiring a toxicity analysis to be undertaken - actual harm or likelihood of harm caused by breach - defendant is a public authority

LEGISLATION CITED: Local Government Act 1993
Protection of the Environment Operations Act 1997, s64(1), s241

CASES CITED: Camilleri Stock Feeds v Environment Protection Authority (1994) 82 LGERA 21 ;
Environment Protection Authority v Pasminco Broken Hill Mine Propriety Limited 2002 NSWLEC (8 May 2002);
Environmental Protection Authority v Port Kembla Copper Pty Limited (2001) 115 LGERA 391;
Environmental Protection Authority v Tenterfield Shire Council (2000) 112 LGERA 173 ;
R v Thompson; R v Houlton (2000) 49 NSWLR 383

DATES OF HEARING: 12/08/2003

EX TEMPORE
JUDGMENT DATE :
08/18/2003

LEGAL REPRESENTATIVES:

PROSECUTOR
M Arch
SOLICITORS
Environment Protection Authority
DEFENDANT
S Griffith
SOLICITORS
Pike, Pike and Fenwick

JUDGMENT:

50125 of 2002

Pain J

18 August 2003

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

LITHGOW CITY COUNCIL

Defendant

Judgment

Should the algal identification prove the presence of a toxic species of blue green algae and the cell count concentration is greater than 15,000 cells per millilitre, a toxicity analysis must be completed. A regional officer of the Authority must be immediately notified by phone and confirmed by fax or mail.

2. The particulars of the offence charged are that the Defendant failed to perform a toxicity analysis on or about 11 March 2002 and failed to notify the Prosecutor in accordance with condition R5.1 despite there being identification of algal discharge from the sewage treatment plant with a cell count concentration of blue green algae greater than 15,000 cells per millilitre. The maximum penalty applicable to this offence is $250,000. The Defendant has pleaded guilty to this offence.

The treatment process at the Lithgow STP involves passing wastewater through a series of three large tertiary ponds. The ponds are used…

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 425
Decision Date: 08/18/2003

CaseChat Overview and Summary

The Lithgow City Council was charged with a contravention of its Environment Protection Licence, specifically breaching a condition that required a toxicity analysis to be undertaken when the algal identification proved the presence of a toxic species of blue-green algae and the cell count concentration exceeded 15,000 cells per millilitre. The breach occurred on or about 11 March 2002, when the Council failed to perform the required toxicity analysis and did not notify the Environment Protection Authority. The Council pleaded guilty to this offence, which was punishable by a fine of up to $250,000.

The court had to decide on the appropriate penalty to impose, taking into account various factors, including the extent of harm caused or likely to be caused by the offence, the practical measures that could have been taken to prevent, control, abate or mitigate harm, the extent to which the Council could reasonably have foreseen the harm, and the extent to which the Council had control over the causes that gave rise to the offence. The court also considered general sentencing principles and the principle of evenhandedness, comparing the current case with previous cases involving similar breaches of licence conditions.

After weighing all the factors, the court concluded that the breach was not serious in the given context, but it was not a matter to be taken lightly. The court decided that the appropriate penalty should be 4% of the maximum penalty, which is $10,000. However, due to mitigating factors such as the early guilty plea, the Council's remorse, full cooperation with the Prosecutor, and steps taken to prevent a recurrence of the offence, the court discounted the penalty by 40%. Consequently, the court ordered that the Council be fined $6,000 and pay the Prosecutor's costs of the proceedings. The court also noted that the Prosecutor intended to withdraw the prosecution in a related matter.

Orders