Environment Protection Authority v Peter Charles Attard
[1999] NSWLEC 220
•09/03/1999
Land and Environment Court
of New South Wales
CITATION:
Environment Protection Authority v Peter Charles Attard [1999] NSWLEC 220
PARTIES
PROSECUTOR
Environment Protection AuthorityDEFENDANT
Peter Charles Attard
NUMBER:
50026-7 of 1999
CORAM:
Cowdroy J
KEY ISSUES:
Environmental Offences :- Waste water disposal - pollution - s 556A
LEGISLATION CITED:
Environmental Offences and Penalties Act 1989
Clean Waters Act 1970 s 16(1)
Crimes Act 1900 s 556A
DATES OF HEARING:
09/03/1999
EX TEMPORE JUDGMENT DATE:
09/03/1999
LEGAL REPRESENTATIVES:
PROSECUTOR
Mr G Plath (Solicitor)SOLICITORS
Environment Protection AuthorityDEFENDANT
SOLICITORS
Mr M Connolly (Barrister)
Peter Lander (Barrister)
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMATTER No. 50026-7 of 1999
CORAM: Cowdroy J
DECISION DATE: 3/9/99
Prosecutor
Defendent
Facts
1. Two charges have been brought against Peter Charles Attard (“the defendant”) for breaches of s 16(1) of the Clean Waters Act 1970. One charge relates to an offence that occurred on 28 April 1998 and the other on the following day 29 April 1998. They are proceedings number 50026 and 50027 of 1999 respectively. The defendant has pleaded guilty to each charge.
2. The defendant is the proprietor of a chicken processing business known as Supreme Chickens. The defendant operates such business upon land situated at 590 Great Western Highway, Arndell Park (“the site”) and holds a licence number 003706 issued pursuant to the provisions of s 27A of the Pollution Control Act 1970 to dispose of waste water upon the site.
3. The defendant has been operating the business for 15 years and it was originally established in 1960. The events which gave rise to these proceedings first came to the attention of the prosecutor on 28 April 1998. Following a complaint, an officer of the prosecutor Mr Durrington attended the site at about 4.30 pm on 28 April and observed black coloured water flowing from the dam wall into an adjoining property and then into a drainage system.
4. The defendant was not present at that time and the premises were locked. A sample of water was taken on that occasion from several places. It is apparent that the water had travelled via drains across a roadway known as Penelope Crescent and ultimately into a creek system.
5. On 29 April 1998 at about 6.55 am, Mr Durrington again attended the site. He had a conversation with the defendant which establishes that the defendant was unaware of the leak from the dam wall. Samples were again taken at various points leading to the creek system. In the conversation the defendant indicated that he would endeavour to arrange for tankers to empty the dam. Later that day at about 4.34 pm Mr Durrington visited the site and noticed that dark coloured water continued to flow across the end of Penelope Crescent.
6. On 30 April 1998 at about 6.55 am Mr Durrington visited the site and noticed a small amount of dark coloured water was flowing across the end of Penelope Crescent into the pit that was connected to the drainage system, and another conversation took place with the defendant. The defendant informed Mr Durrington that he had tried to dispose of some of the water in the pond on the preceding day. Processing of chickens had taken place earlier that morning and he said that he was intending to remove more of the water later that day. In July 1998 the defendant participated in an interview and a record was made thereof.
7. In the processing of chickens the defendant used a substantial quantity of water. He employs twenty people on a permanent part time and casual basis. As at April 1998 waste water disposed of by gravity flow from the processing plant to a 45,000 litre plastic holding tank was then pumped into a tanker for removal from the site. If the plastic holding tank overflowed it discharged into the dam. Water accumulation in the dam was periodically removed by tanker.
8. As at 28 April a substantial amount of water accumulated in the holding pond. The water level had risen to a point where it reached a weakness in the dam wall which allowed water to leak. The unchallenged facts establish that the escape of water from the defendant's premises resulted from a breach in the dam wall and that the defendant was unaware of the leak until Mr Durrington brought it to his attention.
9. There are various matters which the Court must take into consideration under s 9 of the Environmental Offence and Penalties Act 1989 in relation to the charges. The Clean Waters Act 1970 has been repealed by the Protection of the Environment Operations Act 1997, which came into force on 1 July 1999. However by virtue of s 30(1) of the Interpretation Act 1987 the current proceedings remain unaffected. The provisions of s 30(2) and the application of cl 17 of the Protection of the Environment Operations Savings and Transitional Regulation 1988 would otherwise give effect to provision of s 241 of the Protection of the Environment Operations Act 1997. The requirements of s 9 of the Environmental Offences and Penalties Act 1989 (“the Act”) in so far as the matters which the Court is required to take into consideration are virtually identical to those set out in s 241 of the current legislation.
10. Section 9(a) of the Act requires the Court to consider the extent of harm caused or likely to be caused to the environment by the commission of the offence. That evidence is provided by the affidavit of Penelope Ajani sworn 19 April 1999, a scientist engaged by the prosecutor, who diposed that high concentrations of bio-chemical oxygen demand, total suspended solids, nitrogen, phosphorous and ammonia as found in all samples in the stormwater system at the site were well above the ANZECC Guidelines for the protection of aquatic ecosystems. Her conclusion reads as follows:
These concentrations would most likely have an environmental effect on the water quality....environmental effect would be proportional to the quantity and duration of the discharge.
11. It is not known how much liquid escaped from the premises in consequence of the offences. During the investigations Mr Durrington estimated about sixty to eighty litres per minute flowed into the drain. Whether that was continuous cannot be assessed with certainty. However there is no evidence of actual harm being occasioned to the environment.
12. Section 9(b) of the Act requires the Court to consider measures that could have been taken to prevent, control, abate or mitigate that harm. The defendant received infringement notices in 1997 and 1998. They were unrelated to the cause which gave rise to the present offences. It is clear the defendant did not know of the leak and it was only brought to his attention on 29 April 1998. With hindsight he could have inspected the wall to ensure that it was not leaking but I am of the opinion it was reasonable for him to assume the dam would not leak.
13. Section 9(c) of the Act requires the Court to consider the extent to which the defendant could have foreseen the harm to the environment or the likely harm. It was foreseeable that in the event that there was an escape of pollutants from the poultry processing operation harm to the environment could result. The defendant does not assert otherwise. However in the circumstances the leak was scarcely foreseeable.
14. Section 9(d) of the Act requires the Court to consider whether the defendant had control over the causes which gave rise to the offence. The defendant did have control over the plant and of the processing operations.
15. The requirements of section 9(e) of the Act are irrelevant.
16. Prior to 1998 the defendant was authorised to dispose of waste water over his lands. This practice ceased in consequence of complaints from neighbours. Instead the water was contained on the site in the manner described above. Since the offences the defendant has changed the method of disposal of waste water so that such an offence cannot occur again and the dam has been filled in. In doing so it was discovered that there was an old car body buried in the dam wall which was responsible for the breach of the dam wall. The defendant has also purchased another tanker so that waste water will be transported directly from the premises. The prosecutor accepts there is no suggestion of a recurrence.
17. The defendant has conducted his business on the site for fifteen years without conviction for any environmental offence. He pleaded guilty at an early stage of the proceedings, and in accordance with the principle in Camilleri Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683, such plea is to be taken into consideration in assessing penalty. Further, he has cooperated fully with the prosecutor. He has expressed, and I accept, in his sworn testimony that he is very conscious of matters concerning the environment and did not wish to be the subject of any breach of the environmental legislation. His testimony was not challenged in any way.
18. Those matters are to be taken into consideration as is the fact that this offence did not result from any contrived or deliberate action on his part. The defendant is not a man of substantial means. According to his income tax returns, a summary of which has been provided to the Court his nett annual income is approximately $38,000. He has agreed to pay the costs of the prosecutor assessed in the sum of $2,100. The Court is conscious that he will have incurred expense in relation to his own legal representation. In view of the fact the defendant has had no prior convictions and has shown a degree of responsibility the Court does not consider it necessary to impose a penalty but rather to give the defendant the benefit of section 556A of the Crimes Act in respect of each matter.
Orders
19. Accordingly, the Court in each case finds the offences proved. The Court orders that no conviction be recorded in respect of the offences. The Court orders the defendant to pay the costs of the prosecutor amounting to $2,100. The exhibits may be returned.
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