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Environment Protection Authority v Moolarben Coal Operations Pty Ltd

Environment Protection Authority v Moolarben Coal Operations Pty Ltd

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Case Copied 30 March 2012 41 min read

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Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65
Hearing dates: 10 November 2010
Decision date: 30 March 2012
Before: Craig J
Decision:
1.The defendant is convicted of the offence against s 120(1) of the Protection of the Environment Operations Act 1997, as charged.
2.The defendant is fined the sum of $105,000.
3.The defendant must pay the prosecutor's legal costs of the proceedings, agreed in the sum of $53,000.
4.The defendant must pay the prosecutor's investigation costs under s 248 of the Protection of the Environment Operations Act agreed in the sum of $8,632.
5.The defendant, at its expense, and pursuant to s 250(1)(a) of the Protection of the Environment Operations Act must, within 28 days of the date of this order, cause a notice in the form of Annexure "A" to be placed within the first 12 pages of the following newspapers at a minimum size of 10cm x 20cm:
(i)the Sydney Morning Herald in the early general news section;
(ii)the Mudgee Guardian.
6.Exhibits may be returned.

Catchwords: ENVIRONMENTAL OFFENCE: water pollution - s 120(1) of the Protection of the Environment Operations Act 1997 - multiple discharges of pollutant sediment-laden waters into creek - plea of guilty - conditional approval for coal mining under Pt 3A of the Environmental Planning and Assessment Act 1979 required water management plan - water management plan included erosion and sediment control plan - latter plan required measures to be in place before land clearing commenced - majority of measures not in place when substantial clearing commenced - defendant's failure to implement practical measures at time of offence - harm reasonably foreseeable - contrition and remorse - deterrence - parity - publication order
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Environmental Planning and Assessment Act 1979
Protection of the Environment Operations Act 1997
Cases Cited:
Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Environment Protection Authority v Albury City Council [2009] NSWLEC 169
Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79
Environment Protection Authority v Boral Australian Gypsum Limited [2009] NSWLEC 26
Environment Protection Authority v Hanson Precast Pty Limited [2008] NSWLEC 285
Environment Protection Authority v Illawarra Coke Company Pty Limited [2005] NSWLEC 296
Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd [2003] NSWLEC 70; (2003) 128 LGERA 240
Environment Protection Authority v Snowy Hydro Ltd [2008] NSWLEC 264; (2008) 162 LGERA 273
Environment Protection Authority v Straits (Hillgrove) Gold Pty Ltd [2010] NSWLEC 114; (2010) 174 LGERA 314
Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299
Gosford City Council v Australian Panel Products Pty Ltd [2009] NSWLEC 77
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Minister for Planning v Moolarben Coal Mines Pty Ltd [2010] NSWLEC 147; (2010) 175 LGERA 93
R v Tadrosse [2005] NSWCCA 145; (2005) 65 NSWLR…

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: [2012] NSWLEC 65
Decision Date: 30 March 2012

CaseChat Overview and Summary

The Environment Protection Authority brought proceedings against Moolarben Coal Operations Pty Ltd in the Land and Environment Court of New South Wales. The defendant was charged with an offence against section 120(1) of the Protection of the Environment Operations Act 1997, which pertains to the improper disposal of waste. The nature of the offence was that the defendant failed to ensure that waste generated from its coal operations was managed in a manner that did not pose a risk to human health or the environment. The legal issues before the court included whether the defendant breached the statutory duty to manage waste appropriately, the extent of the breach, and the appropriate penalty for the offence.

The court found that the defendant did indeed fail to comply with its obligations under the Act by not ensuring proper waste management practices were in place. The breach was significant, as it involved a substantial amount of waste being improperly disposed of, leading to environmental harm. The court considered various factors in determining the penalty, including the seriousness of the offence, the defendant's culpability, and the need for deterrence and rehabilitation. The court concluded that a substantial fine, coupled with additional requirements such as publication of the conviction and payment of legal and investigation costs, was appropriate to achieve these objectives.

The Environment Protection Authority was awarded a fine of $105,000 against the defendant. The defendant was also ordered to pay the prosecutor's legal and investigation costs, totalling $61,632. Furthermore, the defendant was required to place a notice of the conviction in specified newspapers to ensure public awareness and deterrence. The court's decision underscores the importance of compliance with environmental regulations and the consequences of failing to meet these obligations. The final orders included the conviction, financial penalties, and public notification requirements, reflecting the court's aim to enforce the law and promote environmental protection.

Orders

Orders of the court

1.The defendant is convicted of the offence against s 120(1) of the Protection of the Environment Operations Act 1997, as charged.

2.The defendant is fined the sum of $105,000.

3.The defendant must pay the prosecutor's legal costs of the proceedings, agreed in the sum of $53,000.

4.The defendant must pay the prosecutor's investigation costs under s 248 of the Protection of the Environment Operations Act agreed in the sum of $8,632.

5.The defendant, at its expense, and pursuant to s 250(1)(a) of the Protection of the Environment Operations Act must, within 28 days of the date of this order, cause a notice in the form of Annexure "A" to be placed within the first 12 pages of the following newspapers at a minimum size of 10cm x 20cm:

(i)the Sydney Morning Herald in the early general news section;

(ii)the Mudgee Guardian.

6.Exhibits may be returned.

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 Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65
Hearing dates:	10 November 2010
Decision date:	30 March 2012
Before:	Craig J
Decision:	1.The defendant is convicted of the offence against s 120(1) of the Protection of the Environment Operations Act 1997, as charged. 2.The defendant is fined the sum of $105,000. 3.The defendant must pay the prosecutor's legal costs of the proceedings, agreed in the sum of $53,000. 4.The defendant must pay the prosecutor's investigation costs under s 248 of the Protection of the Environment Operations Act agreed in the sum of $8,632. 5.The defendant, at its expense, and pursuant to s 250(1)(a) of the Protection of the Environment Operations Act must, within 28 days of the date of this order, cause a notice in the form of Annexure "A" to be placed within the first 12 pages of the following newspapers at a minimum size of 10cm x 20cm: (i)the Sydney Morning Herald in the early general news section; (ii)the Mudgee Guardian. 6.Exhibits may be returned.
Catchwords:	ENVIRONMENTAL OFFENCE: water pollution - s 120(1) of the Protection of the Environment Operations Act 1997 - multiple discharges of pollutant sediment-laden waters into creek - plea of guilty - conditional approval for coal mining under Pt 3A of the Environmental Planning and Assessment Act 1979 required water management plan - water management plan included erosion and sediment control plan - latter plan required measures to be in place before land clearing commenced - majority of measures not in place when substantial clearing commenced - defendant's failure to implement practical measures at time of offence - harm reasonably foreseeable - contrition and remorse - deterrence - parity - publication order
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Environmental Planning and Assessment Act 1979 Protection of the Environment Operations Act 1997
Cases Cited:	Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Environment Protection Authority v Albury City Council [2009] NSWLEC 169 Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79 Environment Protection Authority v Boral Australian Gypsum Limited [2009] NSWLEC 26 Environment Protection Authority v Hanson Precast Pty Limited [2008] NSWLEC 285 Environment Protection Authority v Illawarra Coke Company Pty Limited [2005] NSWLEC 296 Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd [2003] NSWLEC 70; (2003) 128 LGERA 240 Environment Protection Authority v Snowy Hydro Ltd [2008] NSWLEC 264; (2008) 162 LGERA 273 Environment Protection Authority v Straits (Hillgrove) Gold Pty Ltd [2010] NSWLEC 114; (2010) 174 LGERA 314 Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Gosford City Council v Australian Panel Products Pty Ltd [2009] NSWLEC 77 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Minister for Planning v Moolarben Coal Mines Pty Ltd [2010] NSWLEC 147; (2010) 175 LGERA 93 R v Tadrosse [2005] NSWCCA 145; (2005) 65 NSWLR…