Environment Protection Authority v Pancorp Australia Pty Limited

[2002] NSWLEC 38

Land and Environment Court

of New South Wales

CITATION:	Environment Protection Authority v Pancorp Australia Pty Limited [2002] NSWLEC 38
PARTIES:	PROSECUTOR Environment Protection Authority DEFENDANT Pancorp Australia Pty Limited
FILE NUMBER(S):	50106; 50107; 50108 of 2001
CORAM:	Talbot J
KEY ISSUES:	Prosecution :- cause waters to be polluted - mitigation
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 s 10 Evidence Act 1995 s 184 Land and Environment Court Act 1979 Pesticides Act 1978 Protection of the Environment Operations Act 1997 s 120(1), s 241(1), s 241(1)(a), s 241(1)(b), s241(1) (c) Land and Environment Regulation 2000
CASES CITED:
DATES OF HEARING:	04/03/2002, 05/03/2002
DATE OF JUDGMENT:	03/22/2002
LEGAL REPRESENTATIVES:	PROSECUTOR Mr T G Howard (Barrister) SOLICITORS Environment Protection Authority DEFENDANT Mr A M Gruzman (Barrister) SOLICITORS Shipton & Associates

JUDGMENT:

IN THE LAND AND Matter No. 50106 – 8 of 2001
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 22 March 2002

Environment Protection Authority
Prosecutor

v
Pancorp Australia Pty Limited

Defendant

REASONS FOR JUDGMENT


1. The defendant has pleaded guilty to three charges that it committed an offence against s 120(1) of the Protection of the Environment Act 1997 (“the PEO Act”) in that it polluted waters on or about 2 June 2000.

2. Each summons refers to separate waters, namely:-


(1) Matter No 50106 of 2001 – The Ram Paddock Dam on property called “Werribee” owned by James Bruce Rowlands;

(2) Matter No 50107 of 2001 - The dam in Paddock No: 10 on property called “Swan Ponds” owned by Anthony James Blackmore; and
(3) Matter No 50108 of 2001 - The Woolshed Dam on property called “Aziel Te-Ar-Maru” owned by Barbara Gladys Marsden.


3. The underlying facts are associated with the events and circumstances explained in judgment delivered in matters numbered 50103 - 5 of 2001, where the defendant, Rail Infrastructure Corporation Pty Limited (“RIC”), has also entered a plea of guilty to each of three charges. However, the facts are not identical in all respects and accordingly, the proceedings against the present defendant have been heard separately, although immediately following the proceedings against RIC.

4. A document to the effect of a statement of agreed facts arising out of admissions made under s 184 of the Evidence Act 1995 is in evidence and is relied upon by both parties.

Background

5. Pancorp Australia Pty Limited (“Pancorp”) was contracted by Kingston Industries Pty Limited (“Kingston”) to carry out a pesticide application program for Rail Services Australia (“RSA”) (now called RIC). The contract included the application of herbicide along the Blayney/Cowra Line on 2 June 2000. The contract was for a “wet hire” of plant and an operator.

6. RSA issued instructions in respect of the type, quantity, rate and mix of pesticides to be used together with spray output instructions.

7. Generic instructions issued to the defendant by RSA included as follows:-


That the spray boom was to be turned off over viaducts, bridges, level crossings and similar areas.

Spraying was to be avoided in cuttings that had water in them or looked as if they carried water.



8. In respect of an earlier program, regarding the Parkes/Orange Line, the company had been issued with an instruction identifying specific spray zones between Parkes and Orange at mileages nominated by the instruction.

9. The following general instruction was also given in respect of the Parkes/Orange Line:-

If any other cuttings have water in them or look as if they carry large volumes of water do not spray them & note kms.



10. The spray output instructions for 2 June 2000 included a direction to apply the herbicide mixture at the rate of 75-80 litres per hectare on the ballast area of the tracks and at the rate of 100 litres per hectare on the cess area.

11. It has been explained to the Court that the ballast area refers to the area where the track and sleepers are supported by crushed rock, whereas the cess areas are approximately 1.5 to 2 metres from the edge of the ballast formation on either side. One of the functions of the cess is to aid with drainage of water from the railway line.

12. At all relevant times, Gary James Cramp, an employee of the defendant, was the Unimog Spray Unit operator who carried out, on behalf of the defendant, the spray application for RSA.

The spray application

13. The following evidence has been extracted from the agreed facts:-


_ Mr Cramp arrived in Dubbo on 14 May 2000 to commence the spray program for RSA under the direction of James Gunther.

_ At all relevant times Mr Gunther was an employee of RSA and gave further instructions to Mr Cramp relating to the spray program on 14 May 2000.

_ On or about 2 June 2000 Mr Cramp attended a location approximately 500 to 600 metres from the Blayney station to commence the spray application along the Blayney to Cowra rail corridor. This location had been pre-determined by Mr Gunther as the initial meeting place.

_ Mr Gunther, Robert Sullivan and Ronny Betts (all employees of RSA) met Mr Cramp at the pre-determined location referred to above.

_ Prior to commencing the spray application, Mr Sullivan gave all persons, namely Mr Gunther, Mr Betts and Mr Cramp a pre-work briefing in which the work site protection planner, the site specific and activity specific hazards for the work to be carried out and the controls to be adopted were explained.

_ On the morning of 2 June 2000 Mr Betts supplied Mr Cramp with the chemicals for loading the spray unit from the RSA truck.

_ Mr Gunther and Mr Betts both assisted Mr Cramp to mix the chemicals and load it on the spray unit prior to commencing the application. Both Mr Gunther and Mr Betts met up with Mr Cramp at two other pre-determined reloading locations and assisted Mr Cramp to reload the spray unit.
_ The pesticides that were mixed and loaded on the spray unit on 2 June 2000, on the three occasions referred to above, were in accordance with the instructions in relation to the pesticides mixture as follows:-


Oust 700 g/ha
Simazine 5kg/ha
Roundup Dry 2.4kg/ha
Synertrol 0.5ltr/ha

Synertrol rates needed to increase to 1ltr/ha if windy.
The water mixing rate was 100 ltr/ha.
_ The containers and labels for the herbicides used for the Blayney/Cowra spray run have been disposed of. The contents of the labels are not known. The label of Oust approved by the National Registration Authority states the following:-


_ Do not apply Oust in drainage ditches and channels.

_ Do not apply Oust during periods of intense rainfall or to soils saturated with water, as off-target migration may occur.
_ Mr Cramp did not read the label on the pesticide containers on the day of the spray application, although he had applied the pesticides and read the labels on numerous prior occasions.

_ The spray unit used on 2 June 2000 had three sections of booms. The rear boom, which sprayed the ballast, was approximately three metres in width. Each of the two side booms were approximately two metres in length and sprayed the cesses. The spray pattern from these side booms extended approximately 1.5 metres beyond the end of these booms. There were four nozzles and seven fan jets on the booms.

_ Mr Cramp commenced the spray application at approximately 8.30am from Blayney and completed it around 1.00pm at Cowra. The spray unit travelled at 30 kilometres an hour.

_ Mr Sullivan travelled with Mr Cramp in the spray unit during the entire application from Blayney to Cowra to supervise safe working practices for personnel during the application.

_ Neither the defendant nor Mr Cramp carried out any pre-spray assessment of the area along the Blayney to Cowra rail corridor that was sprayed on 2 June 2000. The defendant was not engaged to carry out any preliminary or pre-spray assessment of the area.
_ During the application of the herbicide, Mr Cramp was unable to make satisfactory observations in respect of some of the drainage lines in the area being sprayed due to the heavy vegetation along the railway line.
_ The pesticides that were sprayed by Mr Cramp were a liquid mixture of pesticides containing Oust (sulfometuron-methyl), Roundup Dry (glyphosate), Simazine and Synertrol (emulsifiable vegetable oil).
_ The spray application was carried out along the railway line, including the ballast, the cess and the land beyond the cess.
_ Mr Cramp did not switch off the spray boom during the application unless he was travelling over a viaduct, bridge or level crossing. In particular, Mr Cramp did not switch off the spray boom along the railway cuttings adjacent to the dam in Paddock No: 10 on Mr Blackmore’s property, the Ram Paddock on Mr Rowlands’ property and the Woolshed Dam on Mrs Marden’s property.
_ On 2 June 2000 Mr Sullivan was the safe working officer travelling with Mr Cramp from Blayney to Cowra on the contracted Hyrail Vegetation spray unit. He was on the unit for the entire trip.
_ Mr Sullivan observed, during the course of that trip, that it did not rain on that day. During his monitoring of the track ahead, there was no water observed lying on or about the track.
_ The defendant relied on the expertise of RSA in the formulation of the chemical mixture to be applied on the Blayney/Cowra rail line and the rate of application. The rates of application were within the specified allowances for application of such chemicals.
_ The defendant was paid by Kingston Maintenance Pty Limited the sum of $960.00 in respect of the line spraying carried out on 2 June 2000.
_ There is no permanent damage to the areas affected by the migration of the pesticides.
_ The pre-spray assessment of the site was carried out by RSA. There was no requirement, either in the contract or by the site supervisor, for anyone else to carry out such an assessment. In any event, neither Kingston nor Pancorp had been afforded the opportunity to conduct any assessment. Therefore, the spray application was carried out by Pancorp under the instruction and supervision of RSA.
_ RSA did not take adequate precautions to ensure that off target migration did not occur, particularly in relation to obtaining rainfall data prior to the spray application and making an adequate assessment of cuttings or drainage areas off the line in the vicinity of farms.
_ An analysis of the soil samples taken from around the dam in Paddock No: 10 on 18 September 2000 detected sulfometuron-methyl in the top three centimetres and 10 to 15 centimetres of soil. Both sulfometuron-methyl and simazine were detected in the analysis of the water samples taken on the same day in both the dam in Paddock No: 10 and the Ram Paddock.
_ Glyphosate (an active constituent in Roundup), Simazine and Sulformeturon-methyl (an active constituent in Oust) are pesticides within the meaning of the Pesticides Act 1978.

The results
Matter No 50107 of 2001

14. Around 12 September 2000 Anthony James Blackmore noticed a large dead strip of grass in a depression down the middle of Paddock No: 10 on his property, namely “Swan Ponds”. The affected vegetation started from the apron of the railway and extended through the boundary fence down through Paddock No: 10 into a dam. There was a trail of affected vegetation below the dam leading down to Limestone Creek. The above-mentioned depression carries water that flows from the side of the railway line and a culvert under the line. Prior to September 2000, the paddock was covered in solid vegetation. No damage to other vegetation was noticed on the property.

15. On 20 October 2000, Dr Michael St. John Warne, an Environment Protection Officer and Ecotoxicologist, visited Swan Ponds. He made observations in respect of the vegetation in the paddock adjacent to the railway line. The zone of plant death extended from the railway line for approximately 150 metres to a dam. He observed that from the southern end of the dam the plant death continued on for approximately 50 metres until it reached a creek. There was no evidence, either up-stream or down-stream, of any plant death in the creek. He explained that an analysis of samples taken from the dam indicated the presence of sulfometuron-methyl and simazine in the dam. The concentration of sulfometuron-methyl was 0.78ug/L, whereas the concentration of simazine was 2.0ug/lL. Assuming there were two aquatic half lives of two months between the date of spraying and sampling, he estimated the original concentration of sulfometuron-methyl would have been 3.28ug/L. On the assumption that three half-lives of 30 days had passed after the date of spraying simazine, Dr Warne estimated the original concentration would have been 16ug/L. However, assuming a longer half-life of one hundred days was used, the concentration of simazine would have been 4ug/L. Therefore, Dr Warne concludes, the initial concentration in the dam on the Blackmore property would have been between 4 and 16ug/L.

16. Dr Warne made no observations in relation to the effect on the dam itself.

17. The dam was inspected on 21 February 2002 by Paul John Anink, an Environmental Scientist, retained by the defendant, who specialises in the investigation of marine and freshwater aquatic pollution effects. While Mr Anink recognised there may have been some merit in the back calculation method undertaken by Dr Warne, he holds grave concerns regarding the validity of the data relied upon. Mr Anink accepts that regardless of the validity of the actual values obtained from the samples, in order for herbicide damage to have occurred below the dam, in the absence of observed damage around the dam, the herbicides must have migrated through the dam. Mr Anink categorises the polluting event as a pulse disturbance in that the application of the elevated herbicide concentrations occurred over a finite and relatively short time and ceased immediately after the application vehicle had moved on. However, the effect of the event on the local environment was a press disturbance in that the herbicides retained some unknown toxicity for an unknown, and potentially unquantifiable time, meaning that potential toxic effects would have been operating for some unknown time after the pollution event. Mr Anink is not aware of any indication that there were significant aquatic plant communities in the dam. He concludes that the observations of the high use of the dam as a working dam for stock watering leads to the conclusion that it had little or no significant emergent vegetation around the rim of the dam. In his opinion, there is no indication of either medium or long-term impact on the dam. There is unlikely to have been secondary impacts on the invertebrate fauna of the dam arising from possible breakdown of aquatic plant material as the dam was not likely to have had significant plant material available for breakdown. The impact on frogs, reptiles and birds is judged by Mr Anink to have been insignificant by virtue of the limited habitat available for these animals.

Matter No 50106 of 2001

18. In the last week of August 2001 Mr Rowlands noticed there was dead grass in two water flow lines in the Forty Acre Paddock on his property, namely “Werribee”. The grass had a burnt blackish appearance and was different from the surrounding pasture which had grass that was healthy and green in appearance. He told the Court that the water that drains in the flow lines in the Forty Acre Paddock comes from an embankment on the railway line. Water also flows from a cutting from the railway line on the eastern side of the paddock. Furthermore, during winter there is a persistent seepage of water off the railway area and into the property, whereas during summer the flow of water down the flow line is run off associated with rainfall events. He also noticed damage to vegetation in a drainage line that led from the railway line to a dam in the Ram Paddock. This drainage line is approximately 250 metres long and the water that flows into it comes from the railway line. This charge relates only to the water in the dam in the Ram Paddock.

19. From his 20 years experience in the use of herbicides in farming activities Mr Rowlands was able to say that the dead vegetation on his property is similar in appearance to plants killed by herbicide use. After he noticed the damage he isolated cattle from the paddocks for a period of three months. He re-commenced the use of both of the paddocks for grazing in March 2001.

20. Dr Warne did not visit Werribee.

21. Using the information obtained from sampling, Dr Warne carried out calculations using the same assumptions as were used in the case of Swan Ponds to estimate that the original concentration of sulfometuron-methyl would have been 13.6ug/L and between 0.96 and 3.92ug/L for simazine.

22. Mr Anink visited Werribee and inspected the Ram Paddock Dam on 21 February 2002. No crayfish were observed and only one crayfish burrow was noticed. Frogspawn was observed in the dam. Black duck, Musk duck, Coot and Australasian grebes were observed at the dam. Based on observations made in reports by others, Mr Anink noted there was damage to plants evident in the swale but no evidence of damage beyond the dam. He expressed the same reservations in regard to Dr Warne’s evidence that the Court has already noted in respect of Swan Ponds.

23. He re-iterated that the actual polluting event was a pulse disturbance and that the effect on the local environment was a press disturbance.

24. Again, he could find no indication of any significant communities. However, aquatic plant communities would in all likelihood, according to Mr Anink, have been protected by virtue of the size (and therefore the dilution potential) of the water body contained in the dam.

25. Mr Anink judges the incident to have been a possible short-term pulse disturbance upon a localised section of emergent vegetation in the vicinity of the inlet swale. There was no indication of either there being medium or long-term impacts on the dam. There is unlikely to have been secondary impact on the invertebrate fauna arising from possible breakdown of aquatic plant material as the dam was not likely to have had significant plant material available for breakdown.

26. The impact on frogs, reptiles and birds is again judged by Mr Anink to have been insignificant by virtue of the limited habitat available to these animals and the direct availability of alternate habitat on the dam by virtue of its size.

27. In these proceedings a letter dated 26 February 2002 from Mr Rowlands to the defendant’s solicitor is in evidence. The letter concludes as follows:-

The affected areas have now recovered and I was very happy with the concern shown by State Rail and Chemical Company representatives.


Matter No 50108 of 2001

28. According to Barbara Marsden, there was heavy rainfall during August, September and October 2000 and subsequently a lot of water drained through a depression on her property that starts from a cutting on the railway line and runs into the Woolshed Dam. The distance from the railway line to the dam is approximately 300 metres.

29. In or about late August 2000 she noticed that some of the winter active grasses in the depression between the railway line and the Woolshed Dam were not growing. She told the Court that prior to the damage appearing, about two-thirds of the dam was covered by water hyacinth and had rushes around the edges of the dam. Further, a pair of grebes nested in the water hyacinths each year. Moreover, the dam was full of crayfish, bugs and insects. A number of birds also fed on the dam and frogs lived around the dam. In addition, according to Mrs Marsden, the water in the dam was clear and the plant growth in the water was visible.

30. Towards early October she noticed that the water hyacinth was no longer visible in the dam. She observed dead crayfish in the dam. The frogs had disappeared. The grebes and teal ducks stayed away. In October 2000 foam was observed in the dam, which Mrs Marsden says resulted from the water that flowed down from the cutting.

31. Moreover, other dams on the property, which do not receive any run off from the railway line, have not suffered damage similar to the damage at the Woolshed Dam.

32. Dr Warne visited “Aziel Te-Ar-Maru” on 10 November 2000 and examined the Woolshed Dam. There was a clear entry point of the toxicant from the railway line. The dam contained some dead vegetation which consisted predominantly of rush like plants. There were no lilies. In addition, rushes were badly affected and in some cases dead. Dr Warne makes no reference to water samples collected from the Woolshed Dam. He nevertheless appears to draw on the results of the testing on the other two properties to conclude that the off-site migration of herbicide from the railway had quite marked effects on the terrestrial vegetation and also on both plants and animals. These biological changes were the destruction of aquatic plants and insects and, possibly, the death of frogs. He concluded that while the effects of the herbicide do appear to be highly localised they are quite devastating and long lasting.

33. On the other hand, Mr Anink summarised his conclusion based on an analysis of the likely aquatic community of the dam as follows:-

The impact on frogs, reptiles and birds on the Marsden Dam is judged to have been a short to medium term pulse disturbance , in that none of the animals would have been directly impacted by the herbicides but their use of the dam would have been altered by virtue of the alterations in the ecosystem; particularly the loss of the aquatic plants and, for a short time, the probable degradation in water quality arising from the decay of the aquatic plants. It should be noted that there was (and remains) abundant alternative habitat of the same type and quality close to the Marsden Dam, and that frogs and other animals would have been able to utilise these alternative habitats. In the long-term the recovery of the Marsden Dam to the state described by Mrs Marsden would appear to be more related to the problems of rim erosion and grazing due to the stocking rates of the paddocks serviced by the dam.

34. Mr Anink opines that Dr Warne’s conclusion that the effects of the herbicides appear to be quite devastating and long lasting must be read in the context of the actual operation of the Woolshed Dam. The dam is a working dam. The water quality and quantity plus the quality of the rim vegetation is closely linked to both stocking rates and overall water availability. Stock do trample down and graze the rim vegetation. Mrs Marsden herself reported that the water level of the dam can be drawn down to “very low levels” due to stock numbers.

35. Mr Anink concludes that by virtue of the use made of the dam, the aquatic ecology of the Woolshed Dam would be subject to a whole range of perturbations by virtue of its working nature. Protection of aquatic ecological attributes comes second to the utility of the dam to provide drinking water for stock.

36. He again re-iterates that the actual polluting event was a pulse disturbance in that the application of the elevated herbicide concentrations, in his opinion, occurred over a finite and relatively short time and ceased as soon as the vehicle moved on. The effect of the event on the local environment was, according to Mr Anink, a press disturbance in that the herbicides contained some unknown toxicity for an unknown and potentially unquantifiable time.

37. Mr Anink recognises that the aquatic invertebrate community within the Woolshed Dam may have been at risk from toxicity initially when the pollutants first reached the dam.

38. Based on the documented low toxicity of the particular herbicides to animals, Mr Anink thinks it is unlikely that either amphibians or any other invertebrate animals (for example, tortoise and birds) were directly at risk from ingestion of contaminated water within the dam, although the impact on tadpoles cannot be ruled out. It is likely that the use of the dams by these animals would have been altered by virtue of habitat modification (loss of plants and secondary water quality changes) arising from the incident. Apart from the possible secondary water quality impacts arising from the death and decay of plant life, Mr Anink says there was no medium or long term disturbances arising directly from the incident as the particular herbicides would have decayed or been diluted down over a relatively short period.

39. He judges that the aquatic impact of the incident is a short-term pulse perturbation on the aquatic vegetation of the Woolshed Dam in that, in all likelihood, most of the aquatic plants and some of the emergent rim plants were killed by the event. Nevertheless, recovery of the aquatic plant communities is occurring. Recovery of the rim vegetation could be limited by active grazing by stock or rabbits.

40. Mr Anink also concludes that the impact on the aquatic invertebrate fauna was a short-term pulse perturbation either by virtue of some possible direct synergistic effects of the pollutants working in consort and/or by virtue of the secondary alterations to water quality arising from the death and decay of the aquatic plant life in the dam following the incident. He is inclined to favour the second explanation over the first.

41. In the case of frogs, reptiles and birds on the Woolshed Dam, Mr Anink judges the impact to have been a short to medium-term pulse disturbance in that none of the animals would have been directly impacted by the herbicides but their use of the dam would have been altered by virtue of the alteration in the ecosystem, particularly the loss of the aquatic plants and, for a short period, the probable degradation in water quality arising from the decay of aquatic plants.

42. Finally, Mr Anink says that, in the long-term, the recovery of the Woolshed Dam to its previous state, described by Mrs Marsden, would appear to be more related to the problem of rim erosion and grazing due to the stocking rates of the paddock serviced by the dam.

43. The above findings in relation to the result of the application of the herbicide by Pancorp are identical to the findings made by the Court in the proceedings against RIC. The findings are based on the same evidence. The conclusions of Mr Anink are preferred and adopted by the Court.

The defendant’s evidence

44. Ulf Lorenz is a director of Pancorp. He told the Court that the company received $960.00 to carry out the spraying operation on 2 June 2000. He also expressed regret that the incident had occurred and that he had resolved, on behalf of the company, not to use residual chemicals in future to ensure that the same consequences could not happen again. His only direct knowledge of the spraying operation itself was from reports made to him by Mr Cramp.

45. Mr Cramp also gave evidence. He has had 10 years experience of spraying herbicides. He takes notice of weather forecasts and takes weather conditions into account before commencing operations. Mr Cramp told the Court that he had not previously had problems with off target damage as a consequence of herbicide spraying.

46. In cross-examination Mr Cramp explained that it had not occurred to him that there would be areas where spraying should not take place. He said there are other lines sprayed by the company where no instructions akin to those given for the Parkes/Orange Line are given. He does not consider it unrealistic to travel 76 kilometres, which is the length of the Blayney/Cowra Line, without any identification of “no spray” zones. Moreover, he did not notice any areas containing water where there was a slope down to the paddocks. He confirmed, however, that he ran the whole 76 kilometres without turning off the sprays except at railway crossings, viaducts and obvious creeks. Nevertheless, he believed he acted in a safe manner on the day. In his opinion, the cess does not carry large volumes of water, it did not appear to be eroded and there was no water lying on that area. Therefore, in his opinion, it was not necessary to turn off the sprays in any areas of the cess.

The elements of the offence

47. It is clear from the evidence that run off occurred to the three dams as a consequence of the spraying undertaken by Pancorp on 2 June 2000. The herbicide was placed in a position on or adjacent to the Blayney/Cowra Line where it did subsequently run off into the dams after attaching to soil particles following a rainfall event in either late August or early September.

48. Although there were no direct instructions in writing from RSA, the experience of the company and its operator should have dictated that they take care to ensure that the herbicide was not applied in areas vulnerable to run off.

Consideration of matters in s 241 of the PEO Act

49. The evidence discloses that, for the purposes of s 241(1)(a), actual harm occurred when the chemicals entered the three dams described above.

50. In no case has it been proved that there will be long-term consequences. In the cases of the Rowlands and Blackmore Dam, the damage was minimal. The harm caused to the Woolshed Dam was more extensive but nevertheless did not have a long-term effect. There was evidence that there was loss of aquatic flora as a consequence of the herbicide entering the Woolshed Dam. That would have had effect on the amenity of the aquatic fauna, although no direct harm to any fauna, apart form some crayfish, has been observed. In assessing the overall criminality involved in the commission of the three offences, for the purposes of applying the totality principle, the beneficial result in the spraying activity and modified environment where the harm occurred will be taken into account.

51. Section 240(1)(b) requires the Court to take into consideration the practical measures that may be taken to prevent, control, abate or mitigate the harm. It is not apparent whether Mr Cramp took the opportunity to spray arbitrarily in the absence of any formal written instructions or whether he failed to properly assess the terrain from time to time as he drove down the line. Irrespective of what caused him to do so, it is clear that sufficient caution was not taken and that herbicide was sprayed in areas where it was likely to remain until the opportunity for run off occurred. The company is vicariously liable for the omissions made by Mr Cramp. The company also failed to instruct him more fully, notwithstanding the vast previous experience of Mr Cramp himself and the company itself and previous directions and warnings by RSA. The company, through Mr Cramp at least, was aware that one of the functions of the cess was for drainage and that commonly there are “no spray” zones on most railway lines. The company could have been in no doubt about the nature and properties of the chemicals used, particularly Oust. The Court agrees with the prosecutor that the company and Mr Cramp should have considered whether there were additional areas where spraying should not have occurred, particularly where the vegetation was thick and the terrain could not be adequately assessed.

52. The Court does not necessarily agree with the prosecutor that the Court is entitled to take into account the damage to the vegetation of the respective dams in circumstances where the offence is limited to the pollution of waters the subject of the charge.

53. Pursuant to s 240(1)(c) of the PEO Act the Court is directed to take into consideration the extent to which the defendant could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence. The observations already made above in relation to s 241(1)(b) are apposite to the consideration under s 241(1)(c).

54. The extent of the experience of Mr Cramp and the company generally points to an understanding of the consequences that can flow from not taking proper care in a spraying operation.

55. Mr Cramp was clearly in charge of the vehicle during the whole of the spraying operation and he was the only person who had control of the application as it moved down the line.

56. In the whole of the circumstances of the case, including the matters to be taken into account pursuant to s 241(1) of the PEO Act, the Court finds that it is appropriate for the defendant to be convicted notwithstanding a submission by Mr Gruzman on its behalf that the Court should give consideration to the application of s 10 of the Crimes (Sentencing Procedure) Act 1999.

57. Nevertheless, the offence is at the lower end of the scale. The actual harm generally was minimal. There was no real potential for harm to other waters. The defendant has not been previously the subject of any charge in relation to an environmental offence. The maximum fine is $250,000. Having regard to the total criminality in respect of all three offences, a total fine in the sum of $45,000 is warranted.

58. The defendant is entitled to a discount on the penalty that would otherwise be imposed for its early plea of guilty, co-operation with the prosecutor in its enquiries and facilitation of the liability evidence on an uncontested basis. The total fine to be imposed will be $32,000.

59. Accordingly, in matter No 50108 of 2001 the Court imposes a fine of $20,000. In matter No 50106 of 2001 the Court imposes a fine of $8,000. Finally, in matter No 50107 of 2001 the fine imposed is $4,000.

Orders

60. The formal orders of the Court are as follows:-


(1) In matter No 50108 of 2001 the defendant is convicted and fined the sum of $20,000.

(2) In matter No 50106 of 2001 the defendant is convicted and fined the sum of $8,000.

(3) In matter No 50107 of 2001 the defendant is convicted and fined the sum of $4,000.
(4) The defendant is ordered to pay the costs of the prosecutor in each of the matters in a sum to be agreed or, if not agreed, to be assessed in accordance with the Land and Environment Court Act 1979 and the Land and Environment Court Regulation 2000.
(5) The exhibits may be returned.