Environment Protection Authority v Port Stephens Council - [2011] NSWLEC 209

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Local Government Act 1919 (now repealed)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 1995
Cases 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 458
Category: 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] NSWLEC 209
Decision Date: 21 November 2011

CaseChat Overview and Summary

The Environment Protection Authority (EPA) brought proceedings against Port Stephens Council in the Local Court of New South Wales, alleging the Council had breached the Protection of the Environment Operations Act 1997. Specifically, the EPA claimed that the Council had failed to ensure that a person under their direction, control or management complied with a direction given under the Act, in contravention of section 48(2) of the Act. The Council was accused of not preventing the illegal dumping of waste material at a designated site, which resulted in environmental harm.

The court had to determine whether the Council had indeed failed to ensure compliance with the direction, and whether this failure constituted an offence under section 48(2). The Council argued that they had taken all reasonable steps to prevent the illegal dumping, and that the offence was attributable to the actions of an independent contractor. However, the court found that the Council had a duty to take all reasonable steps to ensure compliance with the direction, and that they had not done so. The court held that the Council's failure to prevent the illegal dumping was a breach of the Act, and that the offence was properly attributed to the Council.

The court found the Council guilty of the offence and imposed a penalty of $40,000, as well as ordering the Council to place a notice in two local newspapers, pay the prosecutor's costs and investigation expenses. The court considered the seriousness of the offence, the Council's previous history of non-compliance, and the need to deter future breaches of the Act, in determining the penalty. The court also noted the Council's cooperation with the EPA and their efforts to address the environmental harm caused by the illegal dumping. The final orders included the conviction, fine, publication notice, and payment of costs and expenses.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 1995
Cases 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 458
Category:	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