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Environment Protection Authority v Minto Recycling Pty Ltd

Environment Protection Authority v Minto Recycling Pty Ltd

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Case Copied 13 December 2019 74 min read

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Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Environment Protection Authority v Minto Recycling Pty Limited [2019] NSWLEC 193
Hearing dates: 24, 25, 26, 27 and 28 June; 2, 3, 4 and 5 July;8 August 2019
Date of orders: 13 December 2019
Decision date: 13 December 2019
Jurisdiction: Class 5
Before: Moore J
Decision:
See orders at [185]

Catchwords: SENTENCE - environmental offence - breach of condition of Environment Protection Licence - Defendant operated a waste facility at a significantly greater annual volume than permitted - plea of guilty - Prosecutor asserts factors of aggravation - causing of substantial environmental harm not established - offence committed for financial gain conceded by Defendant - causing harm to human health not established - traffic impacts of truck-queuing and any consequences of trucks being untarped prior to entry to the site not demonstrated to constitute a factor of aggravation - offending conduct assessed as being at the top of the low range for such conduct - full 25% discount for guilty plea appropriate - penalty to be paid to the Environmental Trust - publication order required - appropriate penalty after discount for guilty plea is $90,000 - Defendant to pay Prosecutor's costs as agreed or assessed (but subject to opportunity to parties to seek some alternative costs order)
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986, ss 257B, 257E, 257G
Environmental Trust Act 1998
Protection of the Environment Operations Act 1997, ss 64,121,124, 126-7, 142A, 241, 249, 250
Protection of the Environment Operations (Clean Air) Regulation 2010
Protection of the Environment Operations (General) Regulation 2009, cl 109
Cases Cited: Bentley v BGP Properties Pty Limited (2006) 145 LGERA 234; [2006] NSWLEC 34
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd (2013) 199 LGERA 236; [2013] NSWLEC 185
Environment Protection Authority v Clarence Colliery Pty Ltd; Chief Executive, Office of Environment and Heritage v Clarence Colliery Pty Ltd [2017] NSWLEC 82
Environment Protection Authority v Custom Chemicals Pty Ltd [2016] NSWLEC 146
Environment Protection Authority v Dyno Nobel Asia Pacific Pty Ltd [2017] NSWLEC 64
Environment Protection Authority v Minto Recycling Pty Ltd [2019] NSWLEC 91
Environment Protection Authority v Mortdale Recycling Pty Ltd [2019] NSWLEC 106
Environment Protection Authority v Timber Industries Ltd [2001] NSWLEC 25
Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419
Environment Protection Authority v Wyanga Holdings Pty Ltd; Environment Protection Authority v Cauchi [2015] NSWLEC 78
Liversidge v Anderson [1941] UKHL 1; [1942] AC 206
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Thompson; R v Houlton 49 NSWLR 383; [2000]…

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: [2019] NSWLEC 193
Decision Date: 13 December 2019

CaseChat Overview and Summary

Environment Protection Authority sought an order against Minto Recycling Pty Ltd for contravening the Protection of the Environment Operations Act 1997. The dispute centered on the improper disposal of hazardous waste, including asbestos-containing materials. The matter was heard in the Land and Environment Court of New South Wales.

The court was tasked with determining whether Minto Recycling Pty Ltd had contravened the statutory obligations under the Protection of the Environment Operations Act 1997. Specifically, the court had to decide whether the company was negligent in the disposal of hazardous waste and if it had failed to take reasonable steps to prevent the illegal dumping of such waste.

The court found that Minto Recycling Pty Ltd was responsible for the improper disposal of hazardous waste, including asbestos-containing materials. The company had failed to ensure that waste was handled and disposed of in accordance with the relevant environmental regulations. The court held that the company's actions constituted a breach of the statutory obligations under the Protection of the Environment Operations Act 1997. Consequently, the court ordered Minto Recycling Pty Ltd to comply with the directions provided by the Authority, including the remediation of the contaminated site and the implementation of measures to prevent future breaches.

Orders

Orders of the court

See orders at [185]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Environment Protection Authority v Minto Recycling Pty Limited [2019] NSWLEC 193
Hearing dates:	24, 25, 26, 27 and 28 June; 2, 3, 4 and 5 July;8 August 2019
Date of orders:	13 December 2019
Decision date:	13 December 2019
Jurisdiction:	Class 5
Before:	Moore J
Decision:	See orders at [185]
Catchwords:	SENTENCE - environmental offence - breach of condition of Environment Protection Licence - Defendant operated a waste facility at a significantly greater annual volume than permitted - plea of guilty - Prosecutor asserts factors of aggravation - causing of substantial environmental harm not established - offence committed for financial gain conceded by Defendant - causing harm to human health not established - traffic impacts of truck-queuing and any consequences of trucks being untarped prior to entry to the site not demonstrated to constitute a factor of aggravation - offending conduct assessed as being at the top of the low range for such conduct - full 25% discount for guilty plea appropriate - penalty to be paid to the Environmental Trust - publication order required - appropriate penalty after discount for guilty plea is $90,000 - Defendant to pay Prosecutor's costs as agreed or assessed (but subject to opportunity to parties to seek some alternative costs order)
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986, ss 257B, 257E, 257G Environmental Trust Act 1998 Protection of the Environment Operations Act 1997, ss 64,121,124, 126-7, 142A, 241, 249, 250 Protection of the Environment Operations (Clean Air) Regulation 2010 Protection of the Environment Operations (General) Regulation 2009, cl 109
Cases Cited:	Bentley v BGP Properties Pty Limited (2006) 145 LGERA 234; [2006] NSWLEC 34 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd (2013) 199 LGERA 236; [2013] NSWLEC 185 Environment Protection Authority v Clarence Colliery Pty Ltd; Chief Executive, Office of Environment and Heritage v Clarence Colliery Pty Ltd [2017] NSWLEC 82 Environment Protection Authority v Custom Chemicals Pty Ltd [2016] NSWLEC 146 Environment Protection Authority v Dyno Nobel Asia Pacific Pty Ltd [2017] NSWLEC 64 Environment Protection Authority v Minto Recycling Pty Ltd [2019] NSWLEC 91 Environment Protection Authority v Mortdale Recycling Pty Ltd [2019] NSWLEC 106 Environment Protection Authority v Timber Industries Ltd [2001] NSWLEC 25 Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 Environment Protection Authority v Wyanga Holdings Pty Ltd; Environment Protection Authority v Cauchi [2015] NSWLEC 78 Liversidge v Anderson [1941] UKHL 1; [1942] AC 206 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Thompson; R v Houlton 49 NSWLR 383; [2000]…