Environment Protection Authority v Metziya Pty Ltd - [2003] NSWLEC 196

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Metziya Pty Ltd [2003] NSWLEC 196

PARTIES:
PROSECUTOR
Environment Protection Authority
DEFENDANT
Metziya Pty Ltd

FILE NUMBER(S): 50123 of 2002

CORAM: Pain J

KEY ISSUES: Prosecution :- water pollution - plea of guilty - meaning of harm - appropriate penalty - matters in mitigation - whether order under s 250(1)(c) of the Protection of the Environment Operations Act 1997 should be considered

LEGISLATION CITED: Clean Waters Act 1970 s 16
Protection of the Environment Operations Act 1997 s 91, s 120, s 241, s250(1)(c)

CASES CITED: Axer Pty Ltd v Environment Protection Authority, (2001) 113 LGERA 357;
Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304;
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683;
Environment Protection Authority v Aaron Plant Hire & Earthmoving Pty Ltd (2000) 108 LGERA 300;
Environment Protection Authority v Australand Holdings Ltd [2000] NSWLEC 15;
Environment Protection Authority v Taylor Woodrow (Australia) Pty Ltd (No 2) (1997) 97 LGERA 368;
Liverpool City Council v Mardimiti Pty Limited, (Pain J, NSWLEC, 2 December 2002, unreported) (unpublished, matter no 50062 of 2002);
R v Oliver (NSWCCA, 20 March 1980, unreported);
R v Thompson; R v Houlton (2000) 49 NSWLR 383;
R v Visconti [1982] 2 NSWLR 105;
Veen v The Queen [No 2] (1988) 164 CLR 465

DATES OF HEARING: 25/06/2003

DATE OF JUDGMENT:
06/26/2003

LEGAL REPRESENTATIVES:

PROSECUTOR
Ms K Caruana (solicitor)
SOLICITORS
Environment Protection Authority
DEFENDANT
Mr P Clay (barrister)
SOLICITORS
McIntosh, McPhillamy & Co

JUDGMENT:

50123 of 2002

Pain J

26 June 2003

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

METZIYA PTY LTD

(ACN 097 844 785)

Defendant

Judgment

Introduction

the Defendant Metziya Pty Ltd having its registered office located at 307 Anzac Parade, Kingsford, New South Wales, 2032, appear before a judge of the Court to answer the charge that on or about 5 February 2002, at or near Newbridge Road, Blayney, in the State of New South Wales, it committed an offence against s 120(2) of the Protection of the Environment Operations Act

1997

in that it

caused waters to be polluted

2. The particulars of the waters then identified in the charge is "a table drain that passes alongside the Northern side of Newbridge Road, Blayney, from 61 Newbridge Road and downstream thereof" .

3. I note that the maximum penalty applicable in this case is $250,000. The Defendant has pleaded guilty to the offence

Facts
4. The parties have usefully filed with the Court and relied on an agreed statement of facts. I will repeat the most pertinent parts of that for the purpose of this judgment. As a result of earth moving works carried out at premises occupied by the Defendant at 137 Newbridge Road, Blayney on 5 February 2002 the pollutant, consisting largely of…

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.

Keep reading for free

Create a free CaseChat account to read Environment Protection Authority v Metziya Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2003] NSWLEC 196
Decision Date: 06/26/2003

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the Environment Protection Authority (EPA) prosecuted Metziya Pty Ltd for an offence under the Protection of the Environment Operations Act 1997 (NSW), specifically for causing water pollution. The Defendant, Metziya Pty Ltd, pleaded guilty to the charge that it had caused waters to be polluted on or about 5 February 2002, in Blayney, New South Wales. The court was required to determine the appropriate penalty and whether an order under section 250(1)(c) of the PEO Act should be considered.

The court considered various legal issues, including the definition of harm under the PEO Act, the foreseeability of the harm, and the appropriate penalty for the offence. The EPA argued that there was actual harm as defined by the PEO Act, evidenced by the discharge of sediment-laden water into a nearby creek and the Belubula River. The court accepted that there was actual harm, noting that the pollution itself constituted harm. The court also found that there was a likelihood of environmental harm due to the high levels of turbidity and suspended particulate matter in the discharged water. Metziya Pty Ltd argued that there was no actual harm beyond the pollution itself and that the likelihood of harm was uncertain due to a lack of evidence regarding the volume of polluted water and the pre-incident water quality of the Belubula River. However, the court found that the expert opinion provided by the EPA's scientific officer established a likelihood of harm.

The court further considered the practical measures that could have been taken to prevent or mitigate the harm, finding that adequate sediment controls could have been implemented. It also considered the foreseeability of the harm, concluding that it was reasonably foreseeable given the large-scale construction work and inadequate sediment and erosion controls. The court then assessed the gravity of the offence, the culpability of the Defendant, and general deterrence in determining the penalty. The maximum penalty applicable was $250,000. The court imposed a penalty of $19,500, representing 12% of the maximum penalty, reduced by 35% due to mitigating factors such as the guilty plea, the Defendant's cooperation, and its contribution to the local community.

Finally, the court allowed Metziya Pty Ltd more time to prepare a defined proposal for an order under section 250(1)(c) of the PEO Act, which could include a project to enhance the environment of the Belubula River. The court stood the proceedings over for mention at 9.30am on 11 August 2003, to allow for this preparation. The final orders included the conviction of the Defendant, the requirement to pay the EPA's costs of $14,000, and the standing over of the proceedings for further consideration of the section 250(1)(c) order.

Orders