Environment Protection Authority v McMurray - [2024] NSWCCA 160

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Environment Protection Authority v McMurray [2024] NSWCCA 160
Hearing dates: 27 June 2024
Decision date: 22 August 2024
Before: White JA at [1];
Mitchelmore JA at [2];
Preston CJ of LEC at [3].
Decision:
(1) The answer to question 1 stated in CCA proceeding 2024/84188 is “yes”.
(2) Question 2 stated in the CCA proceeding is unnecessary to answer.
(3) Order 1 made by the Land and Environment Court on 7 February 2024 dismissing the appeal is set aside.
(4) In its place, the appeal to the Land and Environment Court is upheld.
(5) The order of the Local Court made on 12 May 2023 permanently staying the proceedings is set aside.
(6) Judicial review proceeding 2024/99713 is dismissed.

Catchwords:
CRIMINAL PROCEEDINGS – Stated question – question of law arising on appeal to Land and Environment Court – offence attracting special executive liability – cause place to be used as waste facility without lawful authority – law providing for special executive liability of executives for offence by corporation – offence committed by local council – liability of general manager of council – law applies to and in respect of council in same way as applies to and in respect of corporation – whether special executive liability law applies to and in respect of council – whether law applies to and in respect of general manager

Legislation Cited:
Crimes (Appeal and Review) Act 2001 (NSW), s 42B
Criminal Appeal Act 1912 (NSW), ss 5BA, 56A
Local Government Act 1993 (NSW), s 220
Local Government Amendment (Legal Status) Act 2008 (NSW)
Interpretation Act 1987 (NSW), s 34
Protection of the Environment Operations Act 1997 (NSW), ss 144, 169

Cases Cited:
Harrison v Melhem (2008) 72 NSWLR 380; [2008] NSWCA 67
Hoxton Park Residences Action Group Inc v Liverpool City Council (No 2) (2011) 256 FLR 156; [2011] NSWCA 363
Secretary, Department of Family and Community Services v Hayward (a pseudonym) (2018) 98 NSWLR 599; [2018] NSWCA 209
Technical Products Pty Ltd v State Government Insurance Office (Qld) (1989) 167 CLR 45; [1989] HCA 24

Category: Principal judgment
Parties: Environment Protection Authority (Applicant)
Phillip Anthony McMurray (Respondent)
Representation:
Counsel:
R Lancaster SC with Mr R Coffey (Applicant)
T Howard SC with Mr M Fraser (Respondent)
Solicitors:
Environment Protection Authority (Applicant)
Moray & Agnew Solicitors (Respondent)

File Number(s): 2024/00084188 (Court of Criminal Appeal)
2024/00099713 (Court of Appeal)
Publication restriction: NIL
Decision under appeal

Court or tribunal:

Land and Environment Court

Jurisdiction:

Class 6

Citation:

[2024] NSWLEC 6

Date of Decision:

7 February 2024

Before:

Duggan J

File Number(s):

2023/00184155

HEADNOTE

[This headnote is not to be read as part of the judgment]

The Environment Protection Authority (“EPA”) prosecuted the Cootamundra-Gundagai Regional Council (“Council”) for an offence against s 169(1) of the Protection of the Environment Operations Act 1997 (NSW) (“POEO Act”) of causing a place to be used as a waste facility without lawful authority. The Council operated…

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.

Continue reading Environment Protection Authority v McMurray

Details

AGLC: Environment Protection Authority v McMurray [2024] NSWCCA 160
Case: [2024] NSWCCA 160
Decision Date: 22 August 2024

CaseChat Overview and Summary

The appeal in Environment Protection Authority v McMurray concerned the enforcement of environmental regulations against the McMurray, a local council, for operating a waste facility without proper authorisation. The Environment Protection Authority (EPA) took action against the council and its general manager, Mr. McMurray, for violating environmental laws by using a place as a waste facility without lawful authority. The case was appealed to the Land and Environment Court, which was tasked with determining whether the law establishing special executive liability applied to the council and its general manager.

The primary legal issue was whether the special executive liability law, which typically applies to corporations, also applies to local councils and their executives. Specifically, the court had to interpret the legislation to determine if it extended to a local council's operation of a waste facility and if it imposed liability on the council's general manager. The court also needed to consider whether the law applied to the council and its general manager in the same manner as it applied to a corporation.

In its reasoning, the court found that the special executive liability law applied to the council and its general manager. The court held that the legislation was clear in its application to both corporations and local councils, and it did not distinguish between them. Furthermore, the court determined that the law applied to the council and its general manager in the same way it applied to a corporation, imposing liability on the general manager for the corporation's actions. Consequently, the appeal was dismissed, and the special executive liability law was upheld in respect of the council and Mr. McMurray.

As a result of the court's decision, the Environment Protection Authority's action against the council and Mr. McMurray for operating a waste facility without lawful authority stood. The court's ruling confirmed that the special executive liability law applied to both the council and its general manager, ensuring accountability for environmental breaches by local authorities.

Orders