Land and Environment Court
New South Wales
- Amendment notes
Medium Neutral Citation: Environment Protection Authority v Moolarben Coal Operations Pty Ltd (No 2) [2012] NSWLEC 80 Hearing dates: 14, 15 July 2011 Decision date: 19 April 2012 Jurisdiction: Class 5 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 $112,500.
3. The defendant must pay the prosecutor's legal costs of the proceedings, agreed in the sum of $63,000.
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 $314.
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; and
(ii) the Mudgee Guardian.
6. Exhibits may be returned.
Catchwords: ENVIRONMENTAL OFFENCES:- water pollution - s 120(1) of the Protection of the Environment Operations Act 1997 - release of sediment-laden water by unblocking a culvert beneath an embankment retaining that water - inadequate pumping capacity to move retained sediment run-off to dirty water storage dams - failure to carry out adequate erosion and sediment control works - potential for discharge of sediments identified before the offence was committed - plea of guilty - sentencing principles - utilitarian value of early guilty plea when evidence on sentence is contested - prior offence - application of the totality principle - publication order Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Environmental Planning and Assessment Act 1979
Protection of the Environment Operations Act 1997
Threatened Species Conservation Act 1995Cases Cited: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2011] NSWLEC 36
Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65
Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299
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 AB [2011] NSWCCA 229
R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
R v Finnie [2002] NSWCCA 533
R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267
R v Holder (1983) 3 NSWLR 245
R v M.A.K.; R v M.S.K. [2006] NSWCCA 381; (2006) 167 A Crim R 159
Regina v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481
R v McNaughton [2006]…
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- Case
- [2012] NSWLEC 80
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether Moolarben Coal Operations breached its duty of care as stipulated in section 120(1) of the Act. This required an examination of the company's actions, their adherence to regulatory standards, and the extent of the environmental harm caused. Additionally, the court had to determine the appropriate penalty for the breach, including the fine and other ancillary orders under the Act.
In its judgment, the court found that Moolarben Coal Operations did indeed breach its duty of care, resulting in environmental harm. The court considered the seriousness of the breach, the company's culpability, and the need for deterrence and rehabilitation. Consequently, the court convicted the defendant and imposed a fine of $112,500, along with additional costs for legal and investigative expenses. The court further mandated the publication of a notice in specified newspapers to ensure public awareness of the offence and its consequences.
The final orders included a conviction, a fine, payment of legal and investigation costs, and a requirement for the defendant to publish a notice in the Sydney Morning Herald and the Mudgee Guardian. These orders aimed to penalise the company, ensure compliance with environmental laws, and promote public awareness of environmental breaches.
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 $112,500.
3. The defendant must pay the prosecutor's legal costs of the proceedings, agreed in the sum of $63,000.
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 $314.
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; and
(ii) the Mudgee Guardian.
6. Exhibits may be returned.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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