Environment Protection Authority v Middle Harbour Constructions Pty Ltd - [2002] NSWCCA 123

Reported Decision:
(2002) 119 LGERA 440

New South Wales

Court of Criminal Appeal

CITATION: ENVIRONMENT PROTECTION AUTHORITY v MIDDLE HARBOUR CONSTRUCTIONS PTY LIMITED [2002] NSWCCA 123

FILE NUMBER(S): CCA 60197/01

HEARING DATE(S): 29 October 2001

JUDGMENT DATE:
8 April 2002

PARTIES :

Appellant: Environment Protection Authority
Respondent: Middle Harbour Constructions Pty Limited

JUDGMENT OF: Beazley JA at 1; Hulme J at 22; Barr J at 62

LOWER COURT JURISDICTION: Land and Environment Court

LOWER COURT FILE NUMBER(S) :

LOWER COURT JUDICIAL
OFFICER : Sheahan J

COUNSEL : Appellant: SJ Rushton SC
Respondent: PR Clay

SOLICITORS: Appellant: S Garrett
Environment Protection Authority
Respondent: R Burridge Solicitor
Grafton

DECISION: Appeal dismissed

No: 60197/01

BEAZLEY JA

HULME J

BARR J

ENVIRONMENT PROTECTION AUTHORITY v MIDDLE HARBOUR CONSTRUCTIONS PTY LIMITED

JUDGMENT

1 BEAZLEY JA: I have had the advantage of reading in draft the judgment of Hulme J. His Honour has set out the facts and I do not need to repeat them.

2 The respondent pleaded guilty to an offence under s 120 of the Protection of the Environment Operations Act 1997 (NSW) (the Act). That section provides:

“120 Prohibition of pollution of waters

(1) Prohibition on polluting
A person must not pollute any waters.

(2) Prohibition on causing pollution
A person must not cause any waters to be polluted.

(3) Prohibition on permitting pollution
A person must not permit any waters to be polluted.

3 Section 241 specifies matters to be taken into account in imposing a penalty for an offence. To the extent relevant those have been considered by Hulme J in his judgment.

4 The maximum fine which may be imposed for an offence under the Act is $250,000. This penalty provision doubled the previous penalty imposed by the Environmental Offences and Penalties Act 1989 (NSW).

5 The Environment Protection Authority (EPA) has appealed against the inadequacy of the penalty imposed. In its written submissions, the EPA relied additionally upon specific errors in his Honour’s sentencing remarks. These matters are referred to by Hulme J. I am in general agreement with Hulme J in relation to those issues, except in relation to Ground 3(ii), in respect of which I agree with the EPA’s submission, that it is a party’s environmental record which is the relevant issue. Having said that, I should add that there was absolutely no reason why his Honour should not have accepted Mr Burridge’s evidence. Notwithstanding the different position I have taken on this issue, I do not consider that the complained of reference to Mr Burridge had any appellable impact on his Honour’s determination of the appropriate fine. I wish to address more particularly, however, the question whether the penalty imposed was inadequate.

6 As I have said, the respondent pleaded guilty to an offence under s 120 of the Act, the objects of which are specified in s 3. They include:

“(a) to protect, restore and enhance the quality of the…

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: [2002] NSWCCA 123
Decision Date: 8 April 2002

CaseChat Overview and Summary

In the case of Environment Protection Authority v Middle Harbour Constructions Pty Ltd, the Environment Protection Authority (EPA) appealed against the adequacy of a penalty imposed by the Land and Environment Court against Middle Harbour Constructions Pty Ltd for contravening the Protection of the Environment Operations Act 1997 (NSW). The appellant argued that the penalty of $10,000 was inadequate, particularly in light of the significant environmental harm caused by the discharge of nearly half a million litres of wastewater from the respondent's property. The court had to determine whether the penalty imposed was commensurate with the seriousness of the offence and the need for deterrence.

The court considered the statutory objectives of the Act, which include protecting the environment and reducing pollution. It acknowledged the wide range of conduct that the Act covers, from deliberate to accidental pollution, and the difficulty in comparing penalties across different cases. The court also highlighted the importance of considering the maximum penalty prescribed by law and the need for penalties to act as a deterrent. The court found that the penalty imposed did not reflect the seriousness of the offence, the extent to which the respondent must ensure its operating systems function to minimise errors and breaches, and the need for penalties to act as a general deterrent.

The court concluded that the penalty imposed by the Land and Environment Court was inadequate and manifestly so. It considered that the appropriate penalty should be $20,000. The appeal was dismissed, and the penalty was increased to $20,000.

Orders