Environment Protection Authority v Port Stephens Council
[2011] NSWLEC 209
•21 November 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Environment Protection Authority v Port Stephens Council [2011] NSWLEC 209 Hearing dates: 18 August 2011 Decision date: 21 November 2011 Jurisdiction: Class 5 Before: Craig J Decision: 1.The defendant is convicted of the offence against s 48(2) of the Protection of the Environment Operations Act 1997, as charged.
2.The defendant is fined the sum of $40,000.
3.The defendant, at its expense, and pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997 must, within 28 days of this order, place a notice in the first 12 pages of the early general news section of both the Port Stephens Examiner and Newcastle Herald newspapers at a minimum size of 10 cm x 20 cm in the form of Annexure A to these orders.
4.The defendant must pay the prosecutor's costs, as agreed, in the sum of $44,000 within 28 days of this order.
5.The defendant, pursuant to s 248(1) of the Protection of the Environment Operations Act 1997, must pay the prosecutor's investigation expenses, as agreed, in the sum of $27,000 within 28 days of this order.
6.Exhibits may be returned.
Catchwords: PROSECUTION - sentence - offence against s 48(2) of the Protection of Environment Operations Act 1997 - Council carrying on a "waste facility" without a licence contrary to provisions of the Act - no actual environmental harm - contrition demonstrated by defendant - mitigating factors - low end of scale of objective seriousness - penalty imposed - publication order made Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Environmental Planning and Assessment Act 1979
Local Government Act 1919 (now repealed)
Protection of the Environment Operations Act 1997
Waste Avoidance and Resource Recovery Act 2001
Waste Minimisation and Management Act 1995Cases Cited: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280; (2008) 163 LGERA 71
Environment Protection Authority v Smart Skip NSW Pty Ltd [2009] NSWLEC 204
Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278
Environment Protection Authority v Robinson [2004] NSWLEC 629
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
R v White, CCA, 25 July 1991, unreported
Veen v The Queen (No 1) [1979] HCA 7; (1979) 143 CLR 458Category: Sentence Parties: Environment Protection Authority (Prosecutor)
Port Stephens Council (Defendant)Representation: COUNSEL
Mr M Kelly (Prosecutor)
Mr T G Howard with Mr J Connors (Defendant)
SOLICITORS
Office of Environment and Heritage (Prosecutor)
Harris Wheeler Lawyers (Defendant)
File Number(s): 50039 of 2010
Judgment
Port Stephens Council ( the Council ) has pleaded guilty to an offence against s 48(2) of the Protection of the Environment Operations Act 1997 ( the POEO Act ) in that from about 1 July 1999 to 7 July 2008 ( the charge period ) it occupied premises at which a scheduled activity was carried on and, at the time the activity was carried on, it did not hold a licence that authorised that activity to be carried on at those premises. The scheduled activity referred to in the charge is a "waste facility". The activity was conducted on the site of a former quarry, being lot 21 in deposited plan 570152, located at Medowie Road, Medowie ( the Site ). It is now necessary to sentence the Council for that offence.
At all times throughout the charge period, s 48 relevantly provided:
" 48 Licensing requirement - scheduled activities (premises - based)
(1) Application of section
This section applies to scheduled activities where Schedule 1 indicates that a licence is required for premises at which the activity is carried on.
(2) Offence
A person who is the occupier of any premises at which any such scheduled activity is carried on is guilty of an offence, unless the person is, at the that activity is carried on, the holder of a licence that authorises that activity to be carried on at those premises."
During the period from 1 July 1999 to 30 April 2006 inclusive, the maximum penalty stipulated in s 48 for the commission of an offence by a corporation was $250,000 and, in the case of a continuing offence, a penalty of $120,000 for each day the offence continues. During the period from 1 May 2006 to 7 July 2008, the maximum penalty for the commission of the offence by a corporation was increased to $1,000,000 while the daily penalty for a continuing offence remained as it had been. Although the conduct constituting the offence commenced prior to 30 April 2006, the fact that it continued until 7 July 2008, that is during the period in which the higher maximum penalty was applicable, that increased maximum penalty applies when determining the appropriate penalty in the present case ( R v White, CCA, 25 July 1991, unreported).
During the charge period, the Site was used by the Council in the following way:
(i) for storage of materials produced from road works, pavement works and drainage works intended for recycling or re-use, such as soils, road base materials, concrete and pipes; and
(ii) for the disposal of surplus materials produced from road works, pavement works and drainage works that were considered unsuitable for recycling. These materials were used to fill the void space created by the quarrying activities formerly carried out on the Site.
The use of the Site in this manner involved activities that fell within the relevant definition or description found in Sch 1 to the POEO Act and thus required a licence pursuant to s 48. Relevantly, they were activities that engaged the definition of "waste facilities", as that expression was defined in Pt 1 of Sch 1 to the Act between 1 July 1999 and 27 April 2008. Between 28 April 2008 and 7 July 2008 those same activities fell within those described under the heading "waste disposal (application to land)" found in cl 39 of Pt 1 of Sch 1 to the Act.
The facts
The essential facts are not in contest between the parties. They are recorded in a statement of agreed facts compiled co-operatively between the prosecutor and the Council and supplemented by a bundle of documents tendered, without objection from the prosecutor, by the Council. The latter illuminated some of the historical facts and events leading to the Council's ownership and use of the Site, although given the period of time over which the Site has been held by the Council, there are significant gaps in those records.
From the 1930's until the early 1970's, the Site was used as a quarry for extraction of soil, clay, siltstones and mudstones. Quarrying over that period had created a significant void in the Site, the base of which, from time to time, contained water.
From the early 1970's until late 1976 the Site was used by its former owner as a "garbage dump". Records indicate that as at December 1975 the former owner was collecting garbage from the RAAF Williamtown Base on a daily basis and depositing it at the Site. That waste included putrescible waste and household garbage. Members of the local community were also depositing garbage into the quarry void.
Use of the Site in that manner was reported to the Council by a health inspector who recommended that the use cease. However, in February 1976 the Council sought the approval of the Health Commission of NSW to use the Site as a sanitary depot for the disposal of garbage. While s 283 of the Local Government Act 1919 (now repealed) authorised a council to provide, maintain, manage, control and regulate "sanitary depots" for the disposal of "depot-rubbish", by subsection (4) of the section, the "situation" of any such depot required the approval of the Secretary of the Department of Health. The expression "depot-rubbish" was defined in s 282(2)(a) to be -
"any kind of rubbish which in the interests of public health or convenience it is expedient or desirable to remove to a sanitary depot or elsewhere for sanitary disposal or destruction, and in particular shall include nightsoil, garbage, trade refuse, and articles of human food unfit for human consumption".
No doubt the Council made application to the Health Commission for approval to use the Site as a sanitary depot for the disposal of garbage by reason of the provisions of s 283(4) of the Local Government Act.
On 30 July 1976, the Health Commission reported to the Council that the Site had been inspected, as a result of which it indicated that no approval had been or would be given for use of the Site as a garbage depot. The Council was requested to take action to prevent the continuation of garbage disposal on the Site.
There followed an exchange of correspondence between the Health Commission and the Council as to the waste materials that might be used for filling on the Site, thereby keeping space available on other garbage waste sites for putrescible waste. This exchange of correspondence concluded when the Health Commission wrote to the Council on 8 November 1976 in which the following statements were made:
"The Commission has no objection to the excavation at Medowie being filled with builders' debris, hard fill and similar materials, unless they come within the meaning of depot-rubbish.
Council's attention is drawn to the fact that if at any time disposal of this material creates any nuisance, action should be taken to prevent the nuisance re-occurring."
In December 1976, the Council commenced negotiations to purchase the Site. A contract was later entered into and the purchase completed on 26 July 1977.
The minutes of a Council meeting held on 23 August 1977 record that the Site had been purchased "to help meet future requirements for waste disposal and recycling". The minutes of that meeting further record that "the Site may only be used for disposal of non-toxic and non putrescible matter." It is agreed by the prosecutor that the minutes record the purpose for which the Site was acquired, a purpose that includes its use as a recycling yard.
There is an absence of Council records relevant to the Site between 1977 and 1984. The manner in which the Site was used during that period is not recorded and is, in fact, unknown by any Council officer or representative.
The 1986 development application
In January 1985 the Council received a report that it had commissioned from consultants, Sinclair Knight, in the form of a Waste Disposal Study. This Study identified the Site as one being appropriate to be used for landfill, subject to more detailed investigation to ensure that it could be properly engineered to achieve that purpose.
In 1986 the Council commissioned another study to assess the subsoil and groundwater conditions on the Site for the purpose of developing a landfill. The study was undertaken by Douglas and Partners ( the 1986 Douglas Report ). That study also reported the need for further investigation and control mechanisms, including leachate control, before use as a "sanitary landfill facility".
Having considered the two studies, the Council caused a development application to be prepared on its behalf so as to consider granting consent for use as a waste disposal facility under the provisions of the Environmental Planning and Assessment Act 1979. The development proposed by its own development application was described as "Proposed Public Utility - reclamation of disused quarry for recycling, resource storage, land fill and future recreational purposes". However, the development application was subsequently "abandoned" by the Council following receipt of legal advice to the effect that the development it proposed was prohibited under the statutory planning controls then applicable to the Site.
There is no record of when it was that the Council commenced use of the Site as a waste facility. Nonetheless, it accepts that from around 1987 the Site was used by it for both storage and disposal of material from road works, pavement works and drainage works as stated in [4].
The 1995 development consent
In February 1995, the Council submitted to itself a further development application for use of the Site as "land fill and storage area for recycling". The development application was advertised, circulated among the various departments within the Council and also notified to the Department of Lands. Following assessment of the development application, the Council granted development consent to itself, subject to the imposition of a number of conditions.
The new regime of waste regulation
The Waste Minimisation and Management Act 1995 (now repealed) commenced on 21 June 1996. That Act heralded a new regime of waste regulation. It established a broad licensing system that has since continued and evolved under the POEO Act. That regime effectively mandated the issue of a licence by a central regulator for the conduct of landfill and recycling facilities even if they were being conducted by a local council.
Notwithstanding the introduction of this new licensing regime, the Council failed to obtain a licence under the Waste Minimisation and Management Act and subsequently, under the POEO Act. The evidence indicates that no consideration was ever given by the Council to making application for such a licence. As a consequence, it has never held a licence for those activities earlier described and constituting scheduled activities under the POEO Act.
Use of the Site during the charge period
There were three groups of employees within the Council's structure that used the Site during the charge period. They were the drainage team that carried out drainage, maintenance and installation activities; the road works team that carried out road works within the local government area of the Council and the pavement patching team that carried out pavement works within the same area. Each of these groups, together with contractors retained by them, acted on an "understanding" that the Site could be used in conjunction with those works carried out by each group in the manner described in [4].
This "understanding" among the groups is not recorded in or the consequence of any official document of the Council. However, it is accepted to be an understanding that was passed down through employees in these teams as personnel changed over the years. Although the three groups fell within the department of the Council known as Engineering Services, no member of management or subordinate employee was given responsibility for management of the Site at any time during the charge period. In particular, it is accepted by the Council that during this time -
(a) there was no weighbridge facility or docket system recording the volume or quantity of material either being taken to or removed from the Site;
(b) there was not in place any process for assessing or classifying material brought onto the Site;
(c) there was no training of Council employees in classifying waste taken to the Site;
(d) none of the materials taken to the Site were the subject of any testing;
(e) the Council did not have in place a waste classification system, procedure or policy relating to unlicensed premises;
(f) access to the Site was controlled by a gate that was locked;
(g) any persons with general Council authority could access the Site;
(h) the maintenance co-ordinator for the Council held the master key for the lock on the access gate;
(i) there was no register by which the holder of that key at any particular time could be identified;
(j) on occasions contractors would be given the access key from employees supervising the work of those contractors;
(k) there was no management plan or policy for the Site;
(l) there were no sediment control or environmental control measures in place for the Site except for a weir at the discharge point of the Site at which retained water flowed into the Medowie Road table drain, the purpose of that weir being to retain stormwater and suspended solids in the quarry void other than during periods of intense or extended rainfall; and
(m) periodically (probably every two or three months) a bulldozer was taken to the Site for the purpose of levelling it and pushing stockpiles of waste into the quarry void area.
DECCW investigation
Evidence of the offence first became known to the prosecutor on 25 June 2008. A newspaper journalist contacted a senior officer, indicating that illegal dumping of waste in the Port Stephens area was being investigated, including what appeared to be illegal dumping on the Site.
Inspection on 7 July 2008
On 7 July 2008 the Site was inspected by two officers of DECCW. They observed a large flat area of soil that appeared to have been bulldozed which contained waste from roads and drainage construction mixed through it. They also observed:
(i) approximately 11 stockpiles of material containing predominantly soil but with black plastic pipe, pieces of tiles and asphalt or bitumen and concrete mixed with it. Each stockpile was approximately 1 to 1.5 m in height and there was no barrier between the stockpile and the water standing in the base of the quarry void;
(ii) some material from these stockpiles had been pushed into the quarry void which, at the time, retained water;
(iii) two sections with piles of timber and garden waste;
(iv) concrete blocks and pipes that appeared to have come from drainage or road works; and
(v) the diary and log book of an employee of the Council lying among the materials on the ground.
Inspection by DECCW - 19 August 2008
A further inspection of the Site was carried out by officers of DECCW on 19 August 2008. At the time of this inspection it was observed that:
(i) sediment snakes had been installed along the entrance path and to the north east side of the Site;
(ii) sediment fencing had been installed along the north western side of the water body standing within the quarry void;
(iii) stockpiles of waste material that had been observed on the prior inspection had been removed; and
(iv) the concrete blocks and pipes observed on the previous occasion had also been removed.
On this occasion water samples were taken from the Site for the purpose of analysis.
Inspection by DECCW - 17 February 2009
A further inspection of the Site was carried out by officers of DECCW on 17 February 2009. Further changes to the Site were evident. On this occasion it was observed:
(i) that sediment fencing along the north western and southern boundaries of the water body standing in the base of the former quarry had been damaged and, in some sections, had been buried beneath waste soil material. Soil had also breached this fence in some sections and appeared to be entering the standing water; and
(ii) six large concrete pipes were lying on or near the western boundary of the Site.
Material brought to the Site and its quantification
The material brought to the Site by the Council during the charge period was that which fulfilled the purpose or manner of use of the Site as described in [4]. In short, the materials that it acknowledges as having been brought to the Site for its purposes was material intended for recycling or disposal and was sourced from road works, drainage work or pavement works. To the extent that materials observed on the Site by officers of DECCW comprised quantities of glass bottles, tyres or other waste, inconsistent with the purpose of use by the Council, it is not material to which weight will be given when addressing the consequence of the Council's activities. Despite the fact the Site was kept locked by Council employees, it is accepted that, from time to time, the Site may have been used for the dumping of small volumes of waste by trespassers. It is also to be remembered that for some years prior to the Council assuming ownership, the Site was used for the disposal of general waste and some of that material would have become admixed with the material brought onto the Site by the Council.
Of more significance in considering the impact of the Council's activities on the Site is an assessment of the volume of material brought onto the Site by it. In an endeavour to estimate this volume, Mr Richard McClenahan, a registered surveyor, was retained to make an estimate, based upon available aerial photography, historic survey plans and site surveys. As a result of his analysis of these materials, it was estimated that 23,500 m 3 of waste was brought onto the Site between 20 October 1998 and 11 May 2010.
Although the calculation does not precisely correspond to the charge period, it being referable to the data available for analysis, the Council accepts that this is the most reliable calculation of waste material disposed of at the Site. The calculations are consistent with rough estimates made by staff of the Council at the time at which the prosecutor commenced investigations into the Council's use of the Site. From the evidence available to the Council, it estimated that 33,000 m 3 of material was taken to the Site between 1991 and July 2008. As at the latter date, the Council acknowledged that there was stored at the Site approximately 100 m 3 of timber waste and 15 m 3 of concrete blocks and pipes.
Site cleanup
In August 2008 the prosecutor issued to the Council a Notice of Clean Up Action in respect of the Site. It was a requirement of that notice that the Council obtain and furnish to the prosecutor a report in relation to the waste deposited on the Site. Such a report was commissioned from and provided by Douglas Partners, consulting geotechnical and environmental engineers, in September 2008 ( the 2008 Douglas Report ). That Report was prepared following upon a systematic site assessment that included 31 soil test pits and water sampling from a number of locations. The 2008 Douglas Report included findings, summarised by the prosecutor, in the following way:
(a) fill layers with glass, metal and/or brick were generally encountered in the south-western section and central portion of the Site at depths greater than 2 m;
(b) fill containing asphalt, concrete and bricks in the majority of test pits;
(c) fill layers with abundant organics and timber in the central and northern portions of the Site at varying depths;
(d) asbestos or asbestos fibres in 5 soil and fibro samples obtained from 3 separate test pits at a depth no greater than 3.4 m below ground level;
(e) eight of the 29 samples returned levels exceeding DECCW General Solid Waste Guidelines for one or more parameters including Benzo(a)pyrene and heavy metals such as cadmium, chromium, lead and nickel. Based on these results, the fill materials at the Site were classified as 'General Solid Waste' and 'Hazardous Waste' under the DECC Guidelines;
(f) no visual or olfactory evidence to suggest the presence of gross contamination within the soils investigated, with the exception of one test pit, where a light to moderate hydro carbon odour was experienced in the fill materials;
(g) all four water samples returned levels exceeding ANZECC 2000 criteria for Anions including chloride, ammonia and total phosphorous, and for metals including zinc and arsenic. Two of the water samples also returned levels exceeding ANZECC 2000 criteria for copper; and
(h) no visual or olfactory evidence to suggest gross contamination within the water body.
The 2008 Douglas Report also outlined the potential contamination arising from the operation of the Site by reason of the following matters:
(a) the presence of abundant deleterious material within the fill, including concrete, asphalt and timber/organics spread across the majority of the Site;
(b) the presence of polycyclic aromatic hydrocarbon impact at several pit locations exceeding 'commercial/industrial land use' and 'restricted soil waste' criteria for benzo(a)pyrene. The presence of this material may have been due to the asphalt found in the fill material;
(c) the presence of elevated heavy metal concentration in fill material exceeding 'restricted solid waste' criteria;
(d) the presence of asbestos material (as bonded asbestos in fibro fragments and as asbestos fibre bundles in fill material) located in the south-western portion of the Site; and
(e) slightly elevated nutrient and heavy metal concentrations in water samples collected from the water body.
The Report concluded, in this regard, that given the proximity of residential premises to the Site, there was some potential for harm arising from the operation of the Site.
In the context of the matters recorded in the 2008 Douglas Report, there must also be considered the further report of Douglas Partners prepared in May 2011, following a review of the Council's remediation plan for the Site. The findings of that review are not challenged by the prosecutor. There are three matters of present relevance to be noticed from that further report. They are:
(a) the likely harm occasioned by the Site, given its proximity to residential premises, is pollution in the form of dust and odour emissions;
(b) the materials observed in the quarry predominantly comprised sand, gravel and clay with some organics and asphalt materials which are not likely to generate leachate having any significant impact upon the surrounding environment; and
(c) the hydrogeological study indicated a low permeability rock strata within the quarry, suggesting that groundwater flow into and out of the former quarry Site would be low, thereby reducing the potential for leachate migration.
Sentencing considerations
When determining the appropriate sentence to be imposed for the commission of an offence it is necessary that both the subjective and objective circumstances be taken into consideration ( Veen v The Queen (No 1) [1979] HCA 7; (1979) 143 CLR 458 at 490). That penalty which is considered to be appropriate should be determined by an instinctive synthesis of all relevant objective and subjective circumstances ( Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357).
The purposes of sentencing are relevantly identified in s 3A of the Crimes (Sentencing Procedure) Act 1999 ( the CSP Act ). Those purposes include the imposition of adequate punishment, deterrence, making the offender accountable for his or her actions and the denunciation of the conduct of the offender. The imposition of a sentence or penalty for an offence against the POEO Act engages a particular regime of consideration. That regime is established by s 241 of the POEO Act which provides:
" 241 Matters to be considered in imposing penalty
(1) In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant):
(a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence,
(b) the practical measures that may be taken to prevent, control, abate or mitigate that harm,
(c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence,
(d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence,
(e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee.
(2) The court may take into consideration other matters that it considers relevant."
Objective seriousness of the offence
As I have earlier indicated, the maximum penalty for an offence by a corporation against s 48(2) of the POEO Act is $1,000,000. The fixing of the maximum penalty in that amount reflects the public expression by Parliament of the seriousness of such an offence ( Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698). As would be obvious, the maximum penalty is reserved for an extremely serious case, it not being suggested by the prosecutor that the present offence falls into that category. Nonetheless, the seriousness with which the community, through the Parliament, views the offence by imposition of the maximum penalty imposed must be kept firmly in mind.
Relevant to the seriousness or gravity of an offence against s 48(2) is the circumstance that the maximum penalty was increased from $250,000 to the present maximum of $1,000,000 on 1 May 2006. This increase is not only a recognition of seriousness but also an indication that sentencing patterns need to be adjusted.
In the context of offences against the POEO Act, there are two principal elements to be considered. They are first the acts or omissions of the offender and secondly the consequences of those acts or omissions ( Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280; (2008) 163 LGERA 71 at [22]). Before turning to those matters that will generally inform consideration of the elements that I have identified, namely those matters arising from the consideration under s 241, it is necessary to make an observation about the objects of the POEO Act itself.
The objects of the POEO Act are stated in s 3. They include protection, restoration and enhancement of the quality of the environment of this State and also the reduction of risks to human health and degradation of the environment by the use of mechanisms promoting pollution prevention, the reduction to harmless levels of the discharge of substances likely to cause harm to the environment, the making of progressive environmental improvements including the reduction of pollution at source and the monitoring and reporting of environmental quality on a regular basis. A significant mechanism created by the Act itself is the establishment of a licensing regime for activities which, by their nature, have the potential for environmental degradation or harm.
The defendant accepts that conduct conducted outside the regulatory requirements of the POEO Act "tends to undermine the statutory scheme for regulated use of premises used for the carrying out of activities scheduled under that Act". The prosecutor submits that, by reference to the objects of the POEO Act, the statutory scheme was compromised by -
(i) the operation of unregulated waste facility having no control and containment measures installed on the premises;
(ii) conduct of a waste facility in circumstances where there was no system in place for testing, assessment and classification of waste thereby increasing the risk of harm to the environment;
(iii) operating a waste facility which involved the defendant avoiding the payment of levies payable to the prosecutor for facilities of that kind.
While the activities of the Council did involve an undermining of the statutory scheme in the matter identified by the prosecutor, the actions of the Council were less subversive of the objects of the Act than the brief description earlier given might suggest. In the context of assessing seriousness, it must also be acknowledged that part of the activities carried on at the Site involved recycling of materials that came from road, drainage and pavement works. It was seen to comprise "inert" waste and satisfied the definition of such material until amendment of the POEO Act in April 2008. Objectives of the POEO Act stated in s 3 also included "re-use, recovery or recycling of materials" as well as assistance in the achievement of the objectives of the Waste Avoidance and Resource Recovery Act 2001. It was an objective of the latter Act to address resource recovery including reuse, reprocessing and recycling. Albeit unregulated, this in part is what the Council did on the Site.
I turn now to consider those matters identified in s 241 of the POEO Act.
Actual or likely harm to the environment
The defendant accepts that the deposition of waste at the Site did result in environmental harm. The word "harm", as used in the phrase "harm to the environment" is defined in the Dictionary to the POEO Act to include -
"any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution."
As the defendant indicates, the admission that harm to the environment was occasioned by its activities is the inevitable consequence of the admission of each of the elements of the offence with which it is charged. Almost inevitably, disposal of waste will involve some degradation of the environment. In the present case that degradation is amply demonstrated by the 2008 Douglas Report, the essential findings of which I have earlier summarised. While the Site itself was already degraded by reason of the activities conducted upon it prior to the stewardship of the Council, the defendant accepts that those findings must, at least in large part, be attributed to its activities.
In the context of potential harm, the statement of agreed facts records "the extent of likely harm" to be that deduced from the May 2011 Report of Douglas Partners. It will be remembered that the potential or likely harm there described was pollution in the form of dust and odour with a low potential for leachate migration from the Site. There is no evidence that either dust or odour pollution has in fact occurred nor is there any evidence of complaint being made as to the Council's activities on the Site during the charge period.
The statement of agreed facts records that the environmental harm occasioned by the event "was at the low end of the scale." While not resiling from the acceptance of this fact, the prosecutor submits that the potential for harm was more serious given the absence of any measures on the part of the Council to monitor or address that potential. While I accept that the potential was higher than the reality, the evidence does not allow me to conclude how I should categorise this higher potential. It was not in contest that the materials deposited by the Council had generally fallen into the category of "inert" waste, perhaps with the exception of some asphaltic material. Overall, I am unable to assess the environmental harm as being other than at the low end of moderate. I have to assume that had the Council assessed its activities and the consequences for them before embarking upon use of the Site, it would have received advice similar to that given by Douglas and Partners in its May 2011 report.
Practical measures
There can be no doubt that practical measures were available to the Council to "prevent, control, abate or mitigate" the environmental harm occasioned by its activity. The defendant acknowledges as much, indicating that it failed to address the need for a licence and had it done so it would have been subject to a number of obligations imposed under the licensing regime to monitor and control materials brought onto the Site and conduct periodic tests in order to monitor environmental performance. It acknowledges the inadequate management of the Site that led to its ad hoc use for deposition of waste without controls in place.
It is likely that had controls been in place, including separation of deposited or stored materials away from the water body in the base of the quarry, together with those other measures taken following inspection of the Site by DECCW officers, pollution of the Site might, at the very least, have been controlled and mitigated, if not avoided.
Foreseeability of harm
Where harm from the commission of an offence is foreseeable, the purpose of the environment protection legislation is to ensure that the defendant has properly addressed the risk of that harm ( Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359). The Council accepted that, to the extent that there was harm caused or likely to be caused by the commission of the offence, it could reasonably have foreseen it. This concession is properly made.
As my earlier recitation of fact discloses, in 1985 the Council had obtained a Waste Disposal Study when investigating use of the Site as a waste facility. While identifying its potential for that purpose, the study had identified the need for further engineering investigation and also identified the need to investigate the source of the unknown depth of water on the Site before land fill activities took place.
The 1986 Douglas Report to which I have also referred is relevant to this head of consideration. That Report had noted:
(i) that a range of control and seal mechanisms would be needed in order to collect and control leachate if the Site was to be used for a sanitary landfill;
(ii) further investigation was required to deal with "some uncertainties of the Site" before it could be used as a sanitary landfill.
While the Council did not use the Site as a sanitary landfill, information contained in the Report ought to have been sufficient to alert the Council to the prospect of harm from waste materials being deposited on the Site without further investigation and measures both to control contaminants onsite and address any offsite effects.
No further investigation of the Site was carried out before the deposition and storage of waste in the manner earlier described occurred from about 1988. These matters demonstrate that the concession of foreseeability of likely harm to the environment was properly made by the Council.
Control over causes
It could not be gainsaid that the Council had control over those causes that gave rise to the offence. The Council accepts that this is so.
Reasons for commission of the offence
It is accepted by the prosecutor that the commission of the offence was not intentional. It was the consequence of a failure on the part of the Council to consider its obligations under the POEO Act as they related to the activities on the Site. The fact that those activities were conducted for such a lengthy period without adverting to the provisions of the legislation identified the absence of any proper management of the Site and failure to assign responsible personnel to undertake that task.
Although accepting that commission of the offence was not deliberate, the prosecutor submits that the failure to seek a licence to conduct the waste facility was the result of negligence on the part of the Council. It points to the fact that the Council itself had a role to play in enforcing compliance with the POEO Act and would have been responsible for activities within its local government area that required it to address and apply the provisions of that legislation. However, no evidence was adduced identifying those other activities or facilities which would or could have required the Council to consider and enforce the provisions of the POEO Act.
Related to this submission on the part of the prosecutor is a further submission that the objective seriousness of the offence is exacerbated by the fact that the Council is itself an environmental regulator. I do not accept this submission. A submission to similar effect was considered by Preston CJ in Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278. After reviewing authorities in this Court, his Honour determined at [85] that "there is no principle that a penalty should be increased by reason that the defendant is a public authority rather than a private person." His Honour also determined at [86] that a Council, as a public body, "should not receive a more lenient penalty merely because of its status as a public body."
The Council's failure to advert to its obligation to obtain a licence under the POEO Act when it ought reasonably to understand that obligation is relevant to the penalty to be imposed upon it. Beyond that, its existence as a public body neither aggravates nor mitigates the offence.
Conclusions on objective gravity
Having regard to the nature of the offence, the high maximum penalty, the extent of actual harm to the environment and the potential for environmental harm together with those other factors that I have identified, I conclude that the offence is at the low end of medium seriousness.
Subjective factors
When determining the penalty appropriate to be imposed for this offence, it is necessary to take account of those factors that are personal to the defendant and that either aggravate or mitigate the seriousness with which the conduct of the defendant should otherwise be considered. So much is required by the provisions of s 21A of the CSP Act.
None of the aggravating factors identified in s 21A(2) of the CSP Act are demonstrated in the facts before me. However, there are a number of the mitigating factors identified in s 21A(3) that are demonstrated by that evidence.
Prior criminality
The Council has no prior convictions for environmental offences.
Plea of guilty
The Council pleaded guilty at an early stage of the proceedings although not on the first return date. It did so on the third mention date when the prosecutor had filed all of its evidence.
An early plea of guilty warrants a discount of up to 25 percent for the utilitarian value of that plea ( R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383). Although the plea was not entered at the first available opportunity, the prosecutor acknowledges that there was utilitarian value in the timing of the Council's plea and indicates that the Council should receive "near to the full" discount for its plea. In the circumstances, I consider it appropriate to apply a discount of 20 percent.
Contrition and remorse
There is ample evidence before me demonstrating the contrition of the Council for commission of the offence with which it has been charged. It has been demonstrated, in part, by its entry of a plea of guilty at an earlier stage in the proceedings.
Perhaps of more significance is the evidence that has come from the Council's General Manager and from a resolution of the Council itself. The General Manager, Mr Peter Gesling, has sworn an affidavit that was read in these proceedings. He acknowledged the inadvertence of the Council in failing to obtain a licence and in failing to have personnel responsible for management of the Site. He expressed his regret at the failure of the Council to fulfil its legal obligations; he expressed an apology to the Court and acknowledged contrition.
In the present context the resolution of the Council itself, unanimously adopted at its ordinary meeting on 9 August 2011, must be noticed. The resolution then adopted is in the following terms:
"Council expresses its concern and regret at the failure of its systems resulting in it not obtaining an Environmental Protection Licence for the former Medowie Quarry Site. It was and is the intention of Council to adhere to its legal obligations. Council apologises to the Court and the community for the system failure and confirms that all is being done to ensure there are no such failures in the future."
These expressions of contrition and remorse are supported by action that has been taken by the Council. Mr Gesling has indicated that the Council has arranged to pay the prosecutor the sum of $591,137.40 by way of levies that it would otherwise have paid pursuant to s 88 of the POEO Act for depositing waste on the Site. It has also commissioned an environmental audit of all of the Council's waste management systems and sites so as to ensure that it fulfils all its legal obligations. One step taken by the Council in this regard is to cease operating any licensed waste facilities within its area.
The Council's Operations Manager, Mr Peter Murray, has provided evidence to the effect that the cost of rehabilitating the Site is $307,000. The prosecutor accepts this to be a reasonable estimate. The Council's General Manager, Mr Gesling has deposed to the Council's commitment to complete this work and indicated that the overall costs incurred by the Council in relation to the Site arising from the offence and undertaking other remedial action will be in excess of $650,000. This does not include the payment of levies that would otherwise have been payable to the prosecutor had the facility been licensed, being the amount of $591,137.40 to which I have earlier referred. Further, the estimate does not take account of any penalty to be imposed upon the Council for the commission of the offence.
While all of these actions, evidencing the contrition and remorse of the Council, are no less than would be expected of a public authority, they do demonstrate that the Council under its current governance and management fully recognises and takes seriously its environmental responsibilities. These are matters that are therefore properly to be weighed in mitigating the penalty to be imposed for the offence with which the Council has been charged.
Cooperation with the prosecutor
The prosecutor acknowledges the full cooperation that it has received from the Council in both investigating the offence and addressing the need for remedial action. Council staff were readily made available for interview by the prosecutor and documents sought were readily made available.
Further, the Council has cooperated in the presentation of evidence to the Court on this sentence hearing, including participating in the preparation of facts resulting in the statement of agreed facts that became Exhibit A.
That cooperation has also been made manifest in the environmental audit undertaken by the Council of all waste management sites within its area. This process was undertaken voluntarily by the Council following a suggestion in that regard that came from the prosecutor. Further, the Council has agreed to pay the prosecutor's investigation costs in the sum of $27,000.
These matters properly engage the provisions of s 21A(3)(l) and (m) of the CSP Act.
Appropriate sentence
General Deterrence
One of the purposes of imposing a sentence on an offender identified in s 3A of the CSP Act may be identified under the rubric of general deterrence. It requires that a penalty imposed upon an offender be sufficient so as to deter others who might otherwise consider that commission of the offence attracts only a nominal penalty ( Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [140]).
In this context I accept the submission of the prosecutor that the POEO Act was enacted by the legislature to reflect the community's concern for the environment and the expectation that those who breach its requirements will be appropriately punished. By reason of the legislation, the community is entitled to expect that the environment will be protected conformably with legislation that includes observance of the licensing regime whereby the statutory regulator is afforded the opportunity to prevent or control the environmental impacts of those forms of land use to which the legislation applies, either by refusing a licence or imposing conditions. This opportunity so to do is denied when a form of land use, requiring an application for a license, is carried out without any application being made for the issue of such a licence. That omission is potentially no less serious than an act of commission, involving a breach of licence conditions. As Lloyd J observed in Environment Protection Authority v Robinson [2004] NSWLEC 629 (at [30]):
" ... a penalty for a breach must be sufficient to compel attention to the environmental issues to ensure that the defendant, and others, are encouraged to comply with the law and that the environment is not exposed to risk of harm."
Specific deterrence
There is little in the evidence before me to suggest the need for specific deterrence. The circumstances in which the commission of the present offence came to light suggests the need for diligence on the part of the Council to ensure that regulatory requirements are met in respect of all of its activities, particularly those in respect of which the Council is not itself the regulator. The evidence before me suggests that the Council is now alert to the need for this diligence.
Parity
The principle of even-handedness or parity in sentencing requires the Court to have regard to the general pattern of sentencing for an offence of the kind being considered. However, care must be taken in essaying this task. Facts and circumstances that result in the imposition of a penalty in each case will, almost inevitably, vary from case to case. This divergence exemplifies the need for caution when considering penalties imposed for the commission of an identical or similar offence in another case.
Both parties in the present case recognise the need for the caution that I have identified. Each suggest that some assistance may be gained from the decision of this Court in Environment Protection Authority v Smart Skip NSW Pty Ltd [2009] NSWLEC 204.
In Smart Skip the defendant pleaded guilty to an offence against s 144 of the POEO Act in that it used land as a waste facility without lawful authority. Section 144 would appear to be a provision that is complementary to s 48, it being the latter provision that imposes the obligation for a licence to be held where land is used as a waste facility that falls within the description of that activity in Sch 1 of the Act. The offence by Smart Skip involved the use of a Site for the transfer of more than 55,000 tonnes of waste per year, consisting of demolition waste that included concrete, metal, bricks, plastic and soil.
The evidence in the case revealed that despite the volume of material taken to and from the land in question, there was no actual environmental harm. Other factors led to the conclusion by the trial judge that the offence was "at the low to medium end of the spectrum" (at [29]). It was found that the defendant in that case was a commercial operator in the waste industry and that by using the land that it did without a licence it had gained some commercial advantage over its competitors. That is not a consideration relevant to the determination of penalty in the present case. Otherwise, the subjective circumstances found to apply to Smartskip were generally similar to those that apply to the Council in the present case.
A fine of $50,000 was imposed with costs in the sum of $20,000 agreed to be paid to the prosecutor by the defendant. While that determination is useful, the divergence of facts and circumstances between that case and the present must clearly be taken into account.
Conclusion as to penalty
Synthesising the objective circumstances of the offence, its objective gravity and the subjective circumstances of the Council, I consider that an appropriate penalty to be imposed is the sum of $40,000. This includes the discount of 20 percent to which I have earlier referred by reason of the Council's plea of guilty. In fixing this sum I also take account of the fact that the Council has agreed to pay the prosecutor's costs in the sum of $44,000 and investigation costs of $27,000.
Publication order
The prosecutor has sought and the defendant has agreed that there should be a publication order made under the provisions of s 250(1)(a) of the POEO Act. A form of order has been tendered by the prosecutor and that form is accepted by the defendant. It is accepted that the notice should be published in two newspapers, namely the Port Stephens Examiner and the Newcastle Herald.
Costs
As I have indicated, the prosecutor has sought the payment of legal costs in the sum of $44,000 which the Council has agreed to pay. An order requiring payment will be made.
Orders
For these reasons the orders that I make are as follows:
1. The defendant is convicted of the offence against s 48(2) of the Protection of the Environment Operations Act 1997, as charged.
2. The defendant is fined the sum of $40,000.
3. The defendant, at its expense, and pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997 must, within 28 days of this order, place a notice in the first 12 pages of the early general news section of both the Port Stephens Examiner and Newcastle Herald newspapers at a minimum size of 10 cm x 20 cm in the form of Annexure A to these orders.
4. The defendant must pay the prosecutor's costs, as agreed, in the sum of $44,000 within 28 days of this order.
5. The defendant, pursuant to s 248(1) of the Protection of the Environment Operations Act 1997, must pay the prosecutor's investigation expenses, as agreed, in the sum of $27,000 within 28 days of this order.
6. Exhibits may be returned.
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Annexure A
PORT STEPHENS COUNCIL
Guilty of depositing waste without a Licence
On 21 November 2011, the Land and Environment Court of New South Wales convicted Port Stephens Council ( Council ) for depositing waste at Medowie Road, Medowie NSW ( the Site ) without having a licence authorising the depositing of that waste.
The Council pleaded guilty to the charge.
The offence occurred between 1 July 1999 and 7 July 2008 when Council used the Site for the disposal and storage of materials produced from Council road works, pavement works and drainage works.
The Council disposed of about 23,500 cubic metres of waste at the Site during the charge period.
The Council failed to obtain an environment protection licence from the Environment Protection Authority ( EPA ) for the depositing of the waste.
Council was ordered by the Land and Environment Court to:
1.pay a fine in the sum of $40,000
2.pay the prosecution and investigation costs of $71,000 and
3.place this publication notice (paid for by Council) in this newspaper.
Council was prosecuted by the EPA which is part of the Office of Environment and Heritage, Department of Premier and Cabinet (NSW).
Decision last updated: 21 November 2011
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