Environment Protection Authority v Olex Australia Pty Ltd - [2005] NSWLEC 475

Land and Environment Court

of New South Wales

CITATION:
Environment Protection Authority v Olex Australia Pty Ltd [2005] NSWLEC 475

PARTIES:
PROSECUTOR: Environment Protection Authority
DEFENDANT: Olex Australia Pty Ltd

FILE NUMBER(S):
50075 of 2005

CORAM:
Bignold J

KEY ISSUES:
Environmental Offences :- water pollution caused by overflow of chemical solution in factory - plea of guilty - application for discharge - mitigating factors - conviction and penalty justified

LEGISLATION CITED:
Protection of the Environment Operations Act 1997 s120(1)
Crimes (Sentencing Procedure) Act 1999 s10

CASES CITED:
Thorneloe v Filipowski (2001) 52 NSWLR 60

DATES OF HEARING: 22 April 2005

DATE OF JUDGMENT:

08/31/2005

LEGAL REPRESENTATIVES:
PROSECUTOR: Mr M. Johnston, Barrister
Solicitors: Solicitor for the Environment Protection Authority
DEFENDANT: Mr I. Lloyd QC
Solicitors: Freehills

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT

OF NEW SOUTH WALES

BIGNOLD J

31 August 2005

50075 OF 2004 ENVIRONMENT PROTECTION AUTHORITY V

OLEX AUSTRALIA PTY LTD

CORAM: HIS HONOUR

INTRODUCTION

The Defendant has pleaded guilty to the charge of an offence against s120(1) of the Protection of the Environment Operations Act 1997 (the PEO Act) in that on or about 27 January 2004 at Wetherill Park it did pollute waters.
2
According to the Particulars endorsed upon the Summons:

(i) the pollutant was “drawing solution containing oil and /or copper;”

(ii) the waters were “Wetherill Park drainage channel adjacent to and downstream of premises known as No. 29 Davis Road Wetherill Park”; and

(iii) the manner in which the pollution occurred was

A. “

During the course of the defendant’s operations at the premises, the pollutants overflowed from a floor waste pit adjacent to the Rod Breakdown machine and escaped into a stormwater drain on the premises, from which the pollutants flowed into the Wetherill Park drainage channel and then into Prospect Creek”

Section 120(1) of the PEO Act provides as follows:

(1) A person who pollutes any waters is guilty of an offence.

(2) In this section:

"pollute" waters includes cause or permit any waters to be polluted.

The terms “pollute” and “waters” are expansively, defined in the Dictionary to the PEO Act.

Section 123 of the PEO Act prescribes a maximum penalty of $250,000 where the offence is committed by a corporation.

B.
THE RELEVANT FACTS

6

The relevant facts are chiefly found in the Agreed Statement of Facts (Exhibit 1) jointly prepared and tendered by the parties. This is a very comprehensive Statement which admirably sets forth the background facts, the circumstances in which the admitted offence was committed and the nature and extent of the pollution incident, the resulting clean up operations and the immediate follow up action taken by the Defendant.
7
The Statement is far too lengthy to recite and it will be sufficient if I merely extract in these reasons a very abbreviated summary. The facts included in the Agreed Statement substantially emanate from the evidence of Mr Dennis Dogger who up to February 2005 had been for 18 years employed by…

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: [2005] NSWLEC 475
Decision Date: 08/31/2005

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the Environment Protection Authority (EPA) prosecuted Olex Australia Pty Ltd for an environmental offence under section 120(1) of the Protection of the Environment Operations Act 1997 (PEO Act). The defendant pleaded guilty to polluting waters by allowing drawing solution containing oil and/or copper to overflow from its factory premises at Wetherill Park into the Wetherill Park drainage channel and then into Prospect Creek. The court had to decide whether to record a conviction and, if so, what penalty to impose on the defendant. The court considered the statutory objectives of environmental protection and deterrence, the nature of the offence, and the defendant's culpability, including its failure to prevent the pollution incident by deploying better equipment and maintenance. The court also considered the mitigating factors, such as the defendant's plea of guilty, its remorse and co-operation, and its unblemished record in industry. The court found that the offence was not trivial and that the defendant could have prevented the pollution incident by reasonable maintenance and supervision. The court concluded that the objectives of deterrence and denunciation required the recording of a conviction and the imposition of a penalty. The court imposed a penalty of $15,000, which reflected the mitigating factors and the range of penalties for similar offences. The court also ordered the defendant to pay the EPA's reasonable costs of $13,000.

Orders