Environment Protection Authority v Pullinger (No 2) - [2024] NSWLEC 51

Land and Environment Court

New South Wales

Medium Neutral Citation: Environment Protection Authority v Pullinger (No 2) [2024] NSWLEC 51
Hearing dates: 21 to 25 August 2023
Date of orders: 22 May 2024
Decision date: 22 May 2024
Jurisdiction: Class 5
Before: Pritchard J
Decision:
In proceeding 2020/327089, the Court makes the following orders:
(1) Robert Lenard Pullinger is guilty of the offence against s 91(5) of the Protection of the Environment Operations Act 1997 (NSW) of, without reasonable excuse, not complying with direction 7 of the varied clean-up notice given on 18 May 2018 pursuant to s 110 of the Protection of the Environment Operations Act 1997 (NSW).
(2) The proceedings are listed before the list judge to obtain a date for a hearing in relation to sentence and directions in relation to preparation for the sentence hearing.
In proceeding 2020/327090, the Court makes the following orders:
(1) Robert Lenard Pullinger is guilty of the offence against s 91(5) of the Protection of the Environment Operations Act 1997 (NSW) of, without reasonable excuse, not complying with direction 10 of the varied clean-up notice given on 18 May 2018 pursuant to s 110 of the Protection of the Environment Operations Act 1997 (NSW).
(2) The proceedings are listed before the list judge to obtain a date for a hearing in relation to sentence and directions in relation to preparation for the sentence hearing.
In proceeding 2020/327091, the Court makes the following orders:
(1) Robert Lenard Pullinger is guilty of the offence against s 102 of the Protection of the Environment Operations Act 1997 (NSW), of not complying with the prohibition notice given on 25 August 2020 pursuant to s 101 of the Protection of the Environment Operations Act 1997 (NSW).
(2) The proceedings are listed before the list judge to obtain a date for a hearing in relation to sentence and directions in relation to preparation for the sentence hearing.

Catchwords:
ENVIRONMENT AND PLANNING — offences — prosecutions — defendant charged under s 91(5) of the Protection of the Environment Operations Act 1997 (NSW) — validity of direction 7 of the varied clean-up notice — whether there was a connection between direction 7 and the pollution incident the subject of the varied clean-up notice — whether the prosecutor held reasonable suspicion of pollution incident — whether the prosecutor was the appropriate regulatory authority — construction of ss 212C and 212D of the Protection of the Environment Operations Act 1997 (NSW) — failure to comply with direction 7 of clean-up notice — defence of reasonable excuse
ENVIRONMENT AND PLANNING — offences — prosecutions — defendant charged under s 91(5) of the Protection of the Environment Operations Act 1997 (NSW) — failure to comply with direction 10 of varied clean-up notice — defence of reasonable excuse
ENVIRONMENT AND PLANNING — offences — prosecutions — defendant charged under s 102 of the Protection of the Environment Operations Act 1997 (NSW) — whether the giving of the prohibition notice was warranted under s 101(1)(a) of the Protection of the Environment Operations Act 1997 (NSW) — construction of ss 101 and 102 of the Protection of the Environment Operations Act 1997 (NSW) —failure to comply with prohibition notice —definition of cease — definition of keeping — definition of storing — defence of reasonable excuse

Legislation Cited:
Bankruptcy Act 1966 (Cth) s 58
Corporations Act 2001 (Cth) s 601AD
Evidence Act 1995 (NSW) ss 141, 191, 192
Protection of the Environment Operations Act 1997 (NSW) (as in force on 16 November 2020) ss 3, 6, 91, 92, 96, 101, 102, 104, 110, 212C, 212D, 217, 256, Sch 1, Dictionary
Maitland Local Environmental Plan 2011 (NSW)

Cases Cited:
Beckwith v The Queen (1976) 135 CLR 569; [1976] HCA 55
Boddington v British Transport Police [1999] 2 AC 143; [1998] 2 All ER 203; [1998] 2 WLR 639
Burwood Council v Pan Pac Investments Pty Ltd [2018] NSWLEC 110
Council of the City of Sydney v Blue Chips Franchise Pty Ltd (Local Court (NSW), 9 August 2016, unrep)
Council of the City of Sydney v Blue Chips Franchise Pty Ltd [2017] NSWLEC 24
Environment Protection Authority v Lithgow City Council [2007] NSWLEC 695
Environment Protection Authority v O’Brien [2023] NSWLEC 118
Environment Protection Authority v Pullinger (2021) 252 LGERA 102; [2021] NSWLEC 144
Environment Protection Authority v Ramsey Food Processing Pty Ltd [2009] NSWLEC 152
Environment Protection Authority v Sydney Drum Machinery Pty Ltd (No 4) [2016] NSWLEC 59
Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204
George v Rockett (1990) 170 CLR 104; [1990] HCA 26
Gray v Woollahra Municipal Council [2004] NSWSC 112
Kempsey Shire Council v Slade (2015) 214 LGERA 214; [2015] NSWLEC 135
Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1
Liverpool City Council v Cauchi (2005) 145 LGERA 1; [2005] NSWLEC 675
Maund v Shoalhaven City Council [2019] NSWLEC 89
Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No 3) (1980) 47 FLR 163; [1980] FCA 94
Precision Products (NSW) Pty Limited v Hawkesbury City Council (2008) 74 NSWLR 102; [2008] NSWCA 278
R v Filiopovic; Gelevski (2008) 181 A Crim R 83; [2008] VSCA 14
R v Rondo (2001) 126 A Crim R 562; [2001] NSWCCA 540
Ryding v Kempsey Shire Council [2008] NSWLEC 306
Selby v Pennings (1998) 102 LGERA 253; (1998) 19 WAR 520
Sutherland Shire Council v Benedict Industries Pty Ltd (No 4) [2015] NSWLEC 101
Sutton v R (1984) 152 CLR 528; [1984] HCA 5
Taikato v The Queen (1996) 186 CLR 454; [1996] HCA 28
Udy v Hornsby Shire Council [2007] NSWLEC 242

Texts Cited:
Macquarie Dictionary, 9th ed (2023)

Category: Principal judgment
Parties: Environment Protection Authority (Prosecutor)
Robert Lenard Pullinger (Defendant)
Representation: Counsel:
F Berglund (Prosecutor)
L Sims (Defendant)
Solicitors:
Legal Services Branch, Environment Protection Authority (Prosecutor)
Carmody Lawyers (Defendant)

File Number(s): 2020/327089
2020/327090
2020/327091
Publication restriction: Nil

JUDGMENT

Introduction
The three charges
Direction 7 charge – proceeding 2020/327089
Direction 10 charge – proceeding 2020/327090
Prohibition notice charge – proceeding 2020/327091

Issues
Outcome
The initial clean-up notice given on 5 June 2017
The varied clean-up notice given on 18 May 2018
The prohibition notice given on 25 August 2020
The relevant legislative provisions
Chapter 4 of the POEO Act

Relevant legal principles
Separate consideration of the three charges
Burden and standard of proof
Notices under ss 91, 96 and 101 of the POEO Act

Agreed facts
The premises
The defendant, Glowbye and Truegain
Truegain’s activities at the premises between 7 December 2000 and 1 April 2016
Prevention notices given to Glowbye and the defendant on 30 September 2016
The nature and extent of the defendant’s compliance with the initial clean-up notice in the period between June 2017 and March 2018
The EPA’s inspections in March and April 2018, and the engagement by the EPA of Tox Free and GHD
The nature and extent of the defendant’s compliance with the varied clean-up notice in the period May 2018 to May 2019
The activities of EPS at the premises and the defendant’s breach of the contract with EPS

The nature and extent of the defendant’s compliance with the varied clean-up notice in the period between May 2019 and June 2020
The prohibition notice, and the nature and extent of the defendant’s compliance with the varied clean-up notice and the prohibition notice in the period from June 2020 onwards
Rainfall at the premises in the period between 3 June 2018 and 27 November 2021
The engagement of Suez by the EPA in January 2021, and the operation of the interception system at the premises by Suez
Cost compliance notices given by the EPA in relation to voluntary clean-up actions
Donpat, Truegain, Glowbye, Bellham, JM&BP
Defendant’s financial capacity to comply with the varied clean-up notice and the prohibition notice
The EPA’s investigation into the defendant’s financial circumstances from June 2020 onwards
Registration of cost compliance notices on the premises

Not agreed facts
Evidence
Mr Howat
Ms Marler
Mr Klepetko
Mr Gleeson
Mr Cowman
Mr Matthews
The defendant, Mr Pullinger

The direction 7 charge: alleged offence against s 91(5) of the POEO Act
The defendant’s challenge to the validity of direction 7 of the varied clean-up notice
(1) Whether there was a connection between direction 7 and the “pollution incident” the subject of the varied clean-up notice
Defendant’s submissions
Prosecutor’s submissions
(2) Whether the prosecutor had a reasonable suspicion that a “pollution incident” had occurred or was occurring in relation to the above ground tanks
Defendant’s submissions
Prosecutor’s submissions
(3) Whether the prosecutor was the appropriate regulatory authority in relation to the above ground tanks
Defendant’s submissions
Prosecutor’s submissions

Conclusion in relation to the validity of direction 7 of the varied clean-up notice
Failure to comply with direction 7 of the varied clean-up notice

The direction 10 charge: alleged offence against s 91(5) of the POEO Act
The prohibition notice charge: alleged offence against s 102 of the POEO Act
Whether the giving of the prohibition notice was “warranted” within the meaning of s 101 of the POEO Act
Prosecutor’s submissions
Defendant’s submissions

Conclusion in relation to whether the giving of the prohibition notice was warranted
Whether the defendant complied with the prohibition notice
Prosecutor’s submissions
Defendant’s submissions

Conclusion in relation to whether the defendant complied with the prohibition notice
Conclusion in relation to the prohibition notice charge

Defence of reasonable excuse
Defendant’s submissions on the defence of reasonable excuse in relation to the direction 7 charge, the direction 10 charge and the prohibition notice charge
The direction 7 charge
The direction 10 charge
The prohibition notice charge
The surrounding circumstances
(1) The steps required to be taken to comply with the notices and other environmental obligations in relation to the premises
(2) The resources required to carry out those actions
(3) The resources available to the defendant
(4) The actual steps taken by the defendant to attempt to comply with the notices and factors outside the control of the defendant that inhibited his ability to comply with the notices

Prosecutor’s submissions on the defence of reasonable excuse in relation to the direction 7 charge, the direction 10 charge, and the prohibition notice charge
(1) Whether compliance with the notices was technically possible
(2) Whether the defendant’s financial circumstances resulted in an inability to comply with the notices

Defendant’s submissions in reply on the defence of reasonable excuse in relation to the direction 7 charge, the direction 10 charge and the prohibition notice charge
Conclusion on the defence of reasonable excuse in relation to the direction 7 charge
Conclusion on the defence of reasonable excuse in relation to the direction 10 charge
Conclusion on the defence of reasonable excuse in relation to the prohibition notice charge

Conclusion and orders

JUDGMENT

Introduction

Robert Lenard Pullinger (also known as Bob Pullinger and Robert Leonard Pullinger) (the defendant) is charged by the Environment Protection Authority (the EPA) (the prosecutor) with three offences under the Protection of the Environment Operations Act 1997 (NSW) (POEO Act).
The three alleged offences occurred at or near 62 Kyle Street, Rutherford (the premises), a former waste oil processing facility that was operated by Truegain Pty Limited (ACN 055 126 497) (Truegain) between December 2000 and April 2016. The defendant was a director of Truegain from 26 March 1992, and its secretary from 24 February 1997. From 20 August 2016 until Truegain was deregistered on 3 February 2022, the defendant was the sole director of Truegain.
On 5 June 2017, the EPA (Mr Mark Hartwell, head regional operations unit, Hunter) by delegation, gave the defendant clean-up notice no 11548804 (the initial clean-up notice). On 18 May 2018, the EPA (Ms Karen Marler, director North-Hunter), by delegation, gave the defendant clean-up notice no 1564650 (the varied clean-up notice). On 25 August 2020, the defendant was given a prohibition notice ref: DOC20/565127 (the prohibition notice) by the Honourable Matt Kean MP, the then NSW Minister for Energy and Environment (the Minister).

The three charges

The three charges are as follows.

Direction 7 charge – proceeding 2020/327089

By summons filed on 16 November 2020 and amended on 29 March 2022, the defendant is charged with an offence against s 91(5) of the POEO Act (the direction 7 charge). The amended summons dated 29 March 2022 alleges as follows:

The Prosecutor claims:
1. An order that the Defendant, Robert Lenard Pullinger of 1 Church Street, Bowral in the State of New South Wales, appear before a Judge of the Court to answer the charge that, from about 31 August 2018 and continuing to 16 November 2020, at or near 62 Kyle Street, Rutherford (the Premises) in the State of NSW, he committed an offence against s 91(5) of the Protection of the Environment Operations 1997 (the Act), in that he was given a Clean-Up Notice and, without reasonable excuse, he did not comply with the Clean-Up Notice.
Particulars
(a) Clean-Up Notice
Clean-Up Notice No. 11548804 issued 5 June 2017 as varied by the Notice of Variation of Clean-Up Notice No. 1564650 issued 18 May 2018.
(b) Direction not complied with:
“7. By no later than 5pm on Friday 31 August 2018, process, remove and lawfully dispose from the Premises all liquids contained within all above ground tanks.”
(c) Manner of breach
The Defendant failed to process, remove and lawfully dispose from the Premises all liquids contained within all above ground tanks by 5pm on 31 August 2018 and continuing to 16 November 2020.
…

Direction 10 charge – proceeding 2020/327090

By summons filed on 16 November 2020 and amended on 29 March 2022 and 23 August 2023, the defendant is charged with an offence against s 91(5) of the POEO Act (the direction 10 charge). The amended summons dated 23 August 2023 alleges as follows:

The Prosecutor claims:
1. An order that the Defendant … answer the charge that, from about 7 February 2020 and continuing to 5 November 2020, at or near 62 Kyle Street, Rutherford (the Premises) in the State of NSW, he committed an offence against section 91(5) of the Protection of the Environment Operations Act 1997 (the Act), in that he was given a Clean-Up Notice and, without reasonable excuse, he did not comply with the Clean-Up Notice.
Particulars
(a) Clean-Up Notice
Clean-Up Notice No. 11548804 issued 5 June 2017 as varied by the Notice of Variation of Clean-Up Notice No. 1564650 issued 18 May 2018.
(b) Direction not complied with:
“10. Upon the completion of Direction 6, immediately remove and lawfully dispose of all liquids from the onsite bunds (or similar structures) and the underground tank and pit system as a result of the following circumstances:
a) after 10mm or more of rainfall in any 24 hour period at Maitland Airport or recorded on Premises; or
b) when the underground tank is over 1/3 full.”

(c) Manner of breach
Direction 6 of the Varied Clean-Up Notice was completed on or about February 2019. From about 7 February 2020, the Defendant then failed to immediately remove and lawfully dispose of all liquids that accumulated in the onsite bunds and similar structures and the underground tank and put system at the Premises as a result of the following circumstances which occurred on an ongoing basis from 7 February 2020 and continuing to 5 November 2020:
a) after 10mm or more rainfall in any 24 hour period at Maitland Airport or recorded on the Premises; or
b) when the underground tank is over 1/3 full.

…

On the third day of the hearing, 23 August 2023, the prosecutor filed amended consolidated particulars for the direction 10 charge. The amended consolidated particulars are as follows:

1) The manner of the breach particularised in the summon[s] states that "Direction 6 was completed on or about February 2019". On what dates "on or about February 2019" does the prosecutor allege that either of the circumstances referred to in Direction 10 occurred (ie on what dates or dates did "10mm or more of rainfall in any 24 hour period at Maitland Airport or recorded on the premises" OR "the underground tank is over 1/3 full" occur?"
The Prosecutor alleges that the underground tank was more than one third full on the following occasions after February 2019, with reference to the relevant parts of the Prosecutor's evidence:
i.   4 June 2020 …
ii.   11 June 2020 …
iii.   12 June 2020 …
iv.   16 June 2020 …
v.   22 June 2020 …
vi.   22 June 2020 …
vii.   1 August 2020 …
viii.   19 August 2020 …
ix.   4 September 2020 …
x.   5 September 2020 …
xi.   15 October 2020 …
xii.   24 October 2020 …
xiii.   26 October 2020 …
xiv.   5 November 2020 …

Additionally, the Prosecutor alleges that 10mm or more of rainfall in any 24-hour period occurred at Maitland Airport and/or the Premises on the following occasions with reference to the Prosecutor's evidence:
1.   7 February 2020: 35.4mm
2.   8 February 2020: 12.2mm
3.   9 February 2020: 66.4mm
4.   10 February 2020: 20.6mm
5.   6 March 2020: 24.2mm
6.   7 March 2020: 21.8mm
7.   4 April 2020: 15.6mm
8.   26 May 2020: 22.2mm
9.   10 June 2020: 12.4mm
10.   14 June 2020: 13.6mm
11.   13 July 2020: 13.0mm
12.   26 July 2020: 15.8mm
13.   27 July 2020: 46.8mm
14.   28 July 2020: 11.6mm
15.   10 September 2020: 10.4mm
16.   21 September 2020: 12.4mm
17.   25 October 2020: 15.4mm
18.   26 October 2020: 26.6mm
19.   29 October 2020: 10.6mm

"2) For each date in answer to the above, does the prosecutor allege that the Defendant did or did not carry out Direction 10 to "immediately remove and lawfully dispose of all liquids from the onsite bunds (or similar structures) and the underground tank and pit system"?
Yes.
"3) If there is more than one occasion during the charge period that the prosecutor alleges Direction 10 was triggered but not complied with, which of those occasions is the subject of the charge in the summons?"
The Prosecutor alleges that the Defendant failed to comply with the requirement in Direction 10 from February 2019 on each of the occasions set out at above in response to paragraph 1.

On the fourth day of the hearing, the prosecutor conceded that there was nothing in evidence in relation to particulars (i) to (iv), and that particular (vi) was not pressed.

Prohibition notice charge – proceeding 2020/327091

By summons filed on 16 November 2020 and amended on 29 March 2022, the defendant is charged with an offence against s 102 of the POEO Act (the prohibition notice charge). The amended summons dated 29 March 2022 alleges as follows:

The Prosecutor claims that the Defendant … answer the charge that, from 25 August 2020 and continuing to 16 November 2020, at or near 62 Kyle Street Rutherford (Premises) in the State of NSW, he committed an offence against s 102 of the Protection of the Environment Operations Act 1997 (the Act), in that, without reasonable excuse, he did not comply with a prohibition notice given to him.
Particulars
(a) Prohibition Notice
The Prohibition Notice issued and signed by the Honourable Matt Kean MP, Minister for Energy and Environment and dated 25 August 2020.
(b) Direction not complied with
“You, Robert Lenard Pullinger, are directed to cease carrying on the following activities for the period specified below: Storing waste and keeping substances that are harmful or potentially harmful to the environment, including hydrocarbons and PFAS chemicals, in the System and in tanks, containers, drums, sheds, vehicle trailers and other receptacles at the Premises, for a period of two years from the date of this Notice.”
(c) Manner of breach
The Defendant failed to cease carrying on the activities of storing waste and keeping substances that are harmful or potentially harmful to the environment in a spill containment system at the Premises comprised of tanks, containers, drums, sheds, vehicle trailers and other receptables at the Premises from 25 August 2020 and continuing to 16 November 2020.

…

On the third day of the hearing, 23 August 2023, the prosecutor filed amended consolidated particulars for the prohibition notice charge. The amended consolidated particulars are as follows:

1) What physical acts does the Prosecutor allege were carried out by the Defendant that amounted to the "activities of storing waste and keeping substances that are harmful or potentially harmful to the environment?"
The Prosecutor alleges that, at the relevant times, the Defendant was the occupier of the Premises where quantities of waste and substances harmful or potentially harmful to the environment were kept, and he continued to store waste and keep substances harmful or potentially harmful to the environment.
"2) What waste does the Prosecutor allege that the Defendant "stored" on the premises during the charge period?"
Liquid waste, including waste oils and water contaminated with per- and poly-fluoroalkyl substances.
“3) What substances that are harmful or potentially harmful to the environment does the Prosecutor allege the defendant “kept” on the premises during the charge period?”
Liquid waste, including waste oils and water contaminated with per- and poly-fluoroalkyl substances.

Issues

The issues which arise for determination are:

whether direction 7 of the varied clean-up notice was valid;

whether the giving of the prohibition notice was “warranted” within the meaning of s 101 of the POEO Act;

if the giving of the prohibition notice was warranted, whether the defendant complied with the prohibition notice; and

whether the defendant had a reasonable excuse for not complying with directions 7 and 10 of the varied clean-up notice and with the prohibition notice (it was not disputed that the defendant failed to comply with directions 7 and 10 of the varied clean-up notice).

Outcome

For the reasons that follow, I have decided that:

direction 7 of the varied clean-up notice was valid, I being satisfied beyond reasonable doubt that:

there was a connection between direction 7 of the varied clean-up notice and the “pollution incident” the subject of the notice;

the prosecutor had a reasonable suspicion that a “pollution incident” had occurred or was occurring in relation to the above ground tanks on the premises; and

the prosecutor was the appropriate regulatory authority in relation to the above ground tanks;

as admitted, the defendant did not comply with directions 7 and 10 of the varied clean-up notice;

the giving of the prohibition notice was “warranted” within the meaning of s 101 of the POEO Act;

the defendant did not comply with the prohibition notice;

the defendant had no reasonable excuse for not complying with directions 7 and 10 of the varied clean-up notice, and with the prohibition notice;

the defendant is guilty of the offence of not complying with direction 7 of the varied clean-up notice given on 18 May 2018 pursuant to s 110 of the POEO Act;

the defendant is guilty of the offence of not complying with direction 10 of the varied clean-up notice given on 18 May 2018 pursuant to s 110 of the POEO Act; and

the defendant is guilty of the offence of not complying with the prohibition notice given on 25 August 2020 pursuant to s 101 of the POEO Act.

The initial clean-up notice given on 5 June 2017

The initial clean-up notice was given to the defendant under cover of a letter dated 5 June 2017 which provided:

The NSW Environmental Protection Authority (“EPA”) reasonably suspects that a pollution incident is occurring as a result of current circumstances at 62 Kyle St Rutherford NSW 2320.
…
On the 28 April 2017 the EPA provided a draft notice to you for review and provide any comments. On 30 May 2017 the EPA received your response. The EPA has considered your comments and has decided to issue the notice as originally drafted with the exception of an extension to the date for compliance contained in direction 1 of this Clean-Up Action Notice from Friday 16 June 2017 until Friday 23 June 2017.

The initial clean-up notice was given on 5 June 2017 pursuant to s 91(1) of the POEO Act, and included the following by way of background:

[9] The EPA is aware from previous inspections of the Premises and information provided to it by Truegain that Truegain constructed and operated a Spill Containment System at the Premises:
(i) to capture spillage of substances received, used, blended, manufactured or stored at the Premises;
(ii) to capture rainwater, including rainwater contaminated with those substances; and
(iii) to prevent the escape of any spillage of those substances, and any liquid contaminated with those substances, from the Premises entering waters.

[10] The EPA is aware, from previous inspections of the Premises and information provided by Truegain, that the Premises Spill Containment System includes the following:
• The bunded area surrounding the area known as the Southern Tank Farm;
• The bunded area surrounding area known as Tank Farm 112;
• The bunded area surrounding area known as the Drum Tank Farm;
• The bunded area surrounding area known as Tank Farm 108;
• The bunded area surrounding area known as Waste Water Treatment Plant (“WWTP”) Tank Farm;
• The bunded area surrounding area known as Process Area Tank Farm;
• The underground tank and pit system that causes liquids falling or spilling onto the Premises roadway to be captured and drained to the underground wastewater storage tank. This underground tank and put system is identified in Attachment 1 to this Clean-Up Action Notice.

Attachment 1 to this Clean-Up Action Notice shows the approximate location of the areas and Spill Containment System referred to above. …
[11] The EPA is also aware that, as part of the Spill Containment System, a roadway drainage, collection and liquid capture system was constructed, and operated at the Premises. The pits and pipes that form part of this liquid capture system drain via gravity to an underground wastewater tank. This liquid capture system and the underground waster tank is designed to prevent the escape of substances received, used, blended, manufactured or stored at the Premises including but not limited to rainwater contaminated with those substances that may have been placed or split at the Premises, from discharging into waters.
…
[13] During its inspection of the Premises on 16, 19 and 26 September 2016 the EPA officers observed the following:
(i) the bund walls of the Southern Tank Farm, Tank Farm 112, Tank Farm 108 and the Drum Tank Farm were observed to have a number of seeps;
(ii) the south-eastern section of the Southern Tank Farm also had a layer of what appeared to be emulsified waste oil. It was also noted that this material had a strong oily odour;
(iii) the underground wastewater storage tank and associated pits appeared full. The EPA understands that this underground tank collects hydrocarbon contaminated water from within the Premises. Hydrocarbon contaminated water was present directly adjacent to the pit system, which is associated with the underground storage tank;
(iv) hydrocarbon contaminated water was observed on parts of the internal road system and within the main refinery building;
(v) sections of the hardstands around the Premises were cracked and/or slumping;
(vi) the bunded storage area known as the Water Treatment Plant Tank Farm was approximately one third full of rainwater and potentially containing unknown contaminants; and
(vii) the Premises appeared abandoned and no site personnel were present. The inspections were undertaken during business hours.

…
[17] The EPA has, based on observations made during the site inspections described above, and information provided by [the defendant], determined that liquid in the [p]remises Spill Containment System compromises the [p]remises ability to contain a spill from the bulk storage tanks, IBCs and 205 litre drums within the [p]remises Spill Containment System. This is due to the fact that the storage capacity of the bunds has been reduced to less than 50% design capacity and less than 20% in the Southern Tank Farm (as at 5 April 2017).
[18] The EPA has, based on its observations of the [p]remises made during the site inspections described above, also determined that liquids containing PFOS/PFOA and hydrocarbons and other unknown chemicals contained within the [p]remises Spill Containment System would discharge, via the stormwater drains located at the [p]remises, to the environment, including nearby watercourses, in a rainfall event if not removed and lawfully disposed of in an environmentally acceptable manner.
[19] Based on the information above, the EPA is of the opinion that the presence of contaminated liquid in the [p]remises Spill Containment System, and the inability of that system to contain the contaminated liquid in the event of rainfall, constitute a set of circumstances, as a consequence of which there is likely to be, a leak, spill or other escape of a substance, as a result of which pollution is likely to occur. …

The initial clean-up notice required the defendant to take clean-up actions including the following:

1. By Friday 23 June 2017, remove from the Premises and lawfully dispose of all liquid from the Premises Spill Containment System, which is defined in paragraph 10 above.
2. Remove from the Premises and lawfully dispose of at a facility that can lawfully receive it, all liquid in the Premises Spill Containment System within 48 hours of the conclusion of any rainfall event recorded at the Premises or at the Commonwealth Government’s Bureau of Meteorology (Maitland Airport) Weather Monitoring Site.
3. By 7 July 2017, provide to the EPA in respect of the removal of liquid from the premises, pursuant to direction 1 above, the following:
(i) A receipt from the transporter showing the name of the driver and registration of all vehicle(s) used to transport the liquid and the date that the liquid was transported and disposed;
(ii) A receipt from the facility which received the liquid showing the business name/company name and the Australian Business Number … of the waste facility (or facilities) to which the liquid was transported, location of each facility where the liquid was transported; receipts/weighbridge dockets/invoices for liquid transport and disposal, showing the amount of liquid received at the facility.

…

The varied clean-up notice given on 18 May 2018

On 18 May 2018, the prosecutor varied the initial clean-up notice pursuant to s 110(1) of the POEO Act.
The varied clean-up notice included a background section which provided as follows:

D. The EPA is of the opinion that a Pollution Incident has occurred or is still occurring at the Premises as:
a) the EPA understands that since the Notice was issued, contaminated liquid from the spill containment system has been pumped into above ground tanks located on the Premises and that these tanks are now full;
b) the EPA understands that there has been minimal or no maintenance of the above ground tanks since the former occupier of the Premises, Truegain Pty Limited, as placed in liquidation in September 2016. The structural integrity of the tanks is uncertain;
c) on 11-Apr-2018, an EPA Authorised Officer observed that the spill containment system was almost at full capacity;
d) there is a risk that more rainfall will result in further discharges of Per- and poly-fluoroalkyl substances (“PFAS”) and other contaminants discharging into Stony Creek; and
e) The inability of the contaminated liquid to be contained on the Premises in the event of rainfall, constitutes a set of circumstances, as a consequence of which there is likely to be, a leak, spill or other escape of substance, as a result of which pollution is, or is likely to occur.

The varied clean-up notice “removed and replaced” directions 1, 2, 3, 4 and 5 of the initial clean-up notice as follows:

1. No waste is to be received at the Premises
2. By no later than 5pm on Wednesday 30 May 2018, install, operate and maintain on the Premises a standard rain gauge complying with relevant Australian Standards that measures rainfall in millimetres.
Note: this Direction relates to Direction 10 below
3. By no later than 5pm on Wednesday 30 May 2018, place or cause to be placed, a sign (as depicted in Attachment A) at each entrance to the Premises.

The varied clean-up notice required further actions to be taken to reduce pollution including the following:

6. By no later than 5pm on Friday 29 June 2018, process, remove and lawfully dispose from the Premises all liquids contained within all onsite bunds and the underground tank and pit system.
7. By no later than 5pm on Friday 31 August 2018, process, remove and lawfully dispose from the Premises all liquids contained within all above ground tanks.
8. Processing of liquids as required in Direction 6 and 7 must be undertaken by an operator who holds a current in-force Environment Protection Licence issue by the EPA for the scheduled activity of ‘Mobile waste processing’.
9. Mobile plant must not be on the Premises for longer than six (6) months in any 12-month period.
10. Upon the completion of Direction 6, immediately remove and lawfully dispose of all liquids from the onsite bunds (or similar structures) and the underground tank and pit system as a result of the following circumstances:
a) Following a rainfall of 10mm or more in any 24 hour period (9:00am to 9:00am) recorded at the Commonwealth Government’s Bureau of Meteorology (Maitland Airport) Weather Monitoring Site and/or recorded on the Premises.
b) When the underground tank is over 1/3 full. For the purposes of determining if the underground tank is over 1/3 full the tank shall be dip tested at 9:00am each day or levels monitored by installing monitoring equipment.

The prohibition notice given on 25 August 2020

The cover letter to the prohibition notice dated 25 August 2020 provides as follows:

The NSW Environmental Protection Authority (EPA) has recommended I give you a notice in writing directing you to cease carrying on the activity of waste storage and the keeping of substances harmful to the environment at the Premises (the activity).
The EPA has made this recommendation because it advises me that it is of the opinion that there is an ongoing discharge of pollutants within the Premises arising from the activity, that activity is likely to cause harm to the environment and be injurious to public health and that the giving of the notice is warranted. …

The prohibition notice given on 25 August 2020 provided the following by way of background, and made the following direction:

BACKGROUND
…
N. On 4 February 2019, Mr Pullinger and Glowbye provided the EPA with a preliminary investigation report examining groundwater and soil contamination at the Premises. Sampling involved targeting PFAS, petroleum hydrocarbons, polycyclic aromatic hydrocarbons and heavy metals as contaminants of concern, but did not include solvents despite a solvent wash area and a drum storage area in the northern parts of the Premises. The report found groundwater exceedances against the PFAS National Environment Management Plan (NEMP) drinking water guidelines, concentrations of copper, nickel and zinc exceeding NEPM groundwater investigation levels and soil detections of PFAS and NEPM Ecological Investigation Level exceedances for zinc.
…
P. On 12 September 2019, the EPA undertook sampling of the bund storage areas at the Premises confirming high levels of PFAS and other contaminants in bund water. It is believed that the above ground tanks are still holding waste material with similar pollutant characteristics to the bund water. There is an ongoing risk that contaminated liquids will be discharged from the System to areas within the Premises, especially during or after rain.
Q. Under s 101 of the Act the EPA may recommend the issuing of a prohibition notice, including if it is of the opinion that there is an ongoing discharge of pollutants within premises arising from an activity, and that the continued activity is likely to cause harm to the environment or be harmful to public health. The EPA has made such a recommendation in respect of the activities at the Premises.
…
DIRECTION TO PROHIBIT ACTIVITIES
You, Robert Lenard Pullinger, are directed to cease carrying on the following activities for the period specified below:
1. Storing waste and keeping substances that are harmful or potentially harmful to the environment, including hydrocarbons and PFAS chemicals, in the System and in tanks, containers, drums, sheds, vehicle trailers and other receptacles at the Premises, for a period of two years from the date of this Notice.

The relevant legislative provisions

Section 3 of the POEO Act (as in force at all relevant times) identifies the objects of the Act as including:

The objects of this Act are as follows—
(a)  to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development,
…
(d)  to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following—
(i)  pollution prevention and cleaner production,
…

Section 6 of the POEO Act (as in force at all relevant times) provides as follows in relation to the appropriate regulatory authority:

6   Appropriate regulatory authority
(1) EPA The EPA is the appropriate regulatory authority for the purposes of this Act, except as provided by this section.
(2) Local councils and other local authorities A local authority is the appropriate regulatory authority for non-scheduled activities in its area, except in relation to—
(a)  the exercise of functions under Chapter 3 (Environment protection licences), or
(b)  premises defined in an environment protection licence as the premises to which the licence applies, and all activities carried on at those premises, or
(c)  activities carried on by the State or a public authority, whether at premises occupied by the State or a public authority or otherwise, or
(c1)  activities carried on by an authorised network operator (within the meaning of the Electricity Network Assets (Authorised Transactions) Act 2015) whether at premises occupied by the authorised network operator or otherwise, or
(d)  a matter for which a public authority (other than the local authority) is declared under subsection (3) to be the appropriate regulatory authority …

Chapter 4 of the POEO Act

Part 4.2 of Chapter 4 of the POEO Act concerns clean-up notices. As in force at 16 November 2020, the date of the commencement of the direction 7 charge and direction 10 charge proceedings, s 91(1) and (5) provided as follows in relation to clean-up notices that may be given by the appropriate regulatory authority:

91 Clean-up by occupiers or polluters
(1) Notices The appropriate regulatory authority may, by notice in writing, do either or both of the following—
(a) direct an owner or occupier of premises at or from which the authority reasonably suspects that a pollution incident has occurred or is occurring,
(b) direct a person who is reasonably suspected by the authority of causing or having caused a pollution incident,

to take such clean-up action as is specified in the notice and within such period as is specified in the notice.
…
(5) Offence A person who, without reasonable excuse, does not comply with a clean-up notice given to the person is guilty of an offence.
Maximum penalty—
…
(b) in the case of an individual—$250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.

Also in Part 4.2, s 92 (as in force at all relevant times) provided as follows in relation to clean-up by public authorities:

92 Clean-up by public authorities
(1) Directions to public authorities to take clean-up action If the EPA reasonably suspects that a pollution incident has occurred or is occurring, the EPA may, by notice in writing, direct a public authority to take such clean-up action as is specified in the notice. The public authority is authorised and required to take that action.

(2) Voluntary clean-up action by public authorities If a public authority reasonably suspects that a pollution incident has occurred or is occurring, the public authority may take such clean-up action as it considers necessary. The public authority is authorised to take that action, whether or not it is directed to take clean-up action under subsection (1).
…

Part 4.3 of Chapter 4 is concerned with prevention notices. Section 96 of the POEO Act (as in force at all relevant times) provides as follows in relation to preventive action:

96   Preventive action
(1) Application of section This section applies when the appropriate regulatory authority reasonably suspects that an activity has been or is being carried on in an environmentally unsatisfactory manner at any premises or by any person (otherwise than at premises).
(2) Prevention notices The appropriate regulatory authority may, by notice in writing, do either or both of the following—
(a)  direct the occupier of the premises,
(b)  direct the person carrying on the activity (whether or not at premises),

to take such action, as is specified in the notice and within such period (if any) as is specified in the notice, to ensure that the activity is carried on in future in an environmentally satisfactory manner.
(3) Examples The action to be taken may (without limitation) include any of the following—
(a)  installing, repairing, altering, replacing, maintaining or operating control equipment or other plant,
(b)  modifying, or carrying out any work on, plant,
(c)  ceasing to use plant or altering the way plant is used,
(d)  ceasing to carry on or not commencing to carry on an activity,
(e)  carrying on an activity in a particular manner,
(f)  carrying on an activity only during particular times,
(g)  monitoring, sampling or analysing any pollution or otherwise ascertaining the nature and extent of pollution or the risk of pollution,
(h)  action with respect to the transportation, collection, reception, re-use, recovery, recycling, processing, storage or disposal of any waste or other substance,
(i)  preparing and carrying out a plan of action to control, prevent or minimise pollution or waste,
(j)  reviewing the carrying out of an activity.

…

Part 4.4 of Chapter 4 concerns prohibition notices. In Part 4.4, s 101 of the POEO Act (as in force at 16 November 2020, the date of the commencement of the proceedings in relation to the prohibition notice charge) provided as follows in relation to prohibition on activities:

101   Prohibition on activities
(1) Application of section This section applies where the EPA recommends to the Minister that a notice be given under this section because it is of the opinion that the emission or discharge of pollutants from (or within) any premises in which any activity is carried on—
(a)  is causing or is likely to cause such harm to the environment, or
(b)  is or is likely to be so injurious to public health, or
(c)  is causing or is likely to cause such discomfort or inconvenience to any persons not associated with the management or operation of the activity,

that the giving of the notice is warranted.
(2) Notice The Minister may, by notice in writing, do either or both of the following—
(a) direct the occupier of the premises,
(b) direct the person carrying on the activity,

to cease carrying on the activity, or any specified aspect of it, for such period as is specified in the notice.
…

Also in Part 4.4, s 102 (as in force at 16 November 2020) provided as follows in relation to the offence of not complying with a prohibition notice:

102 Offence
A person who, without reasonable excuse, does not comply with a prohibition notice given to the person is guilty of an offence.
Maximum penalty—
…
(b) in the case of an individual—$250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.

Part 4.6 of Chapter 4 contains various miscellaneous provisions. In Part 4.6, s 110 (as in force at all relevant times) provides as follows in relation to the variation or revocation of a notice given under Chapter 4:

110 Revocation or variation
(1) A notice given under this Chapter may be revoked or varied by a subsequent notice or notices.
(2) A notice may be varied by modification of, or addition to, its terms and specifications.
(3) Without limiting the above, a notice may be varied by extending the time for complying with the notice.
(4) A notice may only be revoked or varied by the Minister or by the regulatory authority or public authority that gave it.
…

Chapter 7 of the POEO Act concerns investigation. In Part 7.7 of Chapter 7, s 212C (as in force at all relevant times) provides as follow in relation to actions by incorrect regulatory authority:

212C   Actions by incorrect regulatory authority
(1) This section applies if a regulatory authority or an authorised officer of the authority exercises functions under this Act or the regulations relating to an activity or work that—
(a)  is not authorised or controlled by an environment protection licence, and
(b)  in relation to which the authority is not the appropriate regulatory authority.

(2) A regulatory authority must, as soon as practicable after becoming aware of any such exercise of functions, notify the appropriate regulatory authority in writing of the functions so exercised and of any such functions that it proposes to continue to exercise or to cease to exercise in relation to the matter.
(3) A regulatory authority or an authorised officer of the authority may (but is not required to), if notice is given in accordance with subsection (2), continue to exercise functions under this Act or the regulations relating to the activity or work until—
(a) directed to do otherwise by the appropriate regulatory authority, or
(b) an environment protection licence is granted in respect of the activity or work concerned.

(4) The appropriate regulatory authority may, by notice in writing, direct a regulatory authority (including its authorised officers) not to exercise functions under this Act or the regulations in relation to an activity or work if it becomes aware that the other authority or an authorised officer of that authority is exercising, or has exercised, functions of the appropriate regulatory authority in relation to that activity or work.
…

Section 212D (as in force at all relevant times) provides as follows in relation to the continuation of exercise of functions by the appropriate regulatory authority:

212D Appropriate regulatory authority may continue to exercise functions
(1) If a regulatory authority (including an authorised officer) is required to cease to exercise functions, or ceases to exercise functions, under section 212C (3) or (4), the appropriate regulatory authority or an authorised officer of that authority may continue to exercise any functions commenced by the other regulatory authority or an authorised officer, as if the functions had been exercised by the appropriate regulatory authority or an authorised officer of that authority.
(2) For the purposes of this Act and the regulations and any proceedings, any function previously exercised by the other regulatory authority (including an authorised officer) relating to the activity or work concerned is taken to have been exercised by the appropriate regulatory authority (or an authorised officer of that authority) and this Act applies accordingly.
(3) Without limiting subsection (2), any notice or direction given by the other authority or an authorised officer of the authority may be enforced, or varied or revoked, as if it had been given by the appropriate regulatory authority or an authorised officer of that authority.
(4) A notice issued by the other authority or an authorised officer of the authority is taken to be varied, to the extent of any inconsistency, if a subsequent inconsistent notice is issued by or on behalf of the appropriate regulatory authority or an authorised officer of that authority.
(5) Nothing in this section affects the right of the other regulatory authority to recover a fee, charge or cost under this Act in relation to a notice given while exercising functions as referred to in section 212C (1) or (3).

Chapter 8 of the POEO Act concerns criminal and other proceedings. Part 8.2 concerns proceedings for offences. In Part 8.2, s 217(1) (as in force at all relevant times) provides as follows:

217 EPA or other appropriate regulatory authority may institute proceedings
(1) EPA Proceedings for an offence against this Act or the regulations may be instituted by the EPA.
(2) Other appropriate regulatory authority Any such proceedings may also be instituted by the appropriate regulatory authority, if it is not the EPA, in connection with a matter for which it is the appropriate regulatory authority.

In Part 8.5, which concerns evidentiary provisions, s 256(1) provides in relation to the onus of proving that a person had a reasonable excuse:

256 Onus of proof of certain matters
(1) In any proceedings under this Act, the onus of proving that a person had a reasonable excuse or lawful excuse (as referred to in any provision of this Act or the regulations) lies with the defendant.

Schedule 1 to the POEO Act concerns scheduled activities. Clause 42 (as in force at all relevant times) provides relevantly as follows in relation to waste storage:

42   Waste storage
(1) This clause applies to waste storage, meaning the receiving from off site and storing (including storage for transfer) of waste.
(1A) Waste is taken to be stored at premises for the purposes of this clause even if the waste is only being transferred at those premises between units of rolling stock, motor vehicles or trailers.
(2) However, this clause does not apply to any of the following—
(a)  the storage of stormwater,
(b)  the storage of up to 60 tonnes at any time of any of the following kinds of waste (but not when accompanied by any other kind of waste)—
…
(iv)  waste oil,

(c) the storage of sewage within a sewage treatment system,
(d) the storage and transfer of liquid waste that is generated and treated on site prior to sewer discharge, or lawful discharge to waters.

…
(3) The activity to which this clause applies is declared to be a scheduled activity if—
(a)  more than 5 tonnes of hazardous waste, restricted solid waste, liquid waste or special waste (other than waste tyres) is stored on the premises at any time, or
(b)  more than 5 tonnes of waste tyres or 500 waste tyres is stored on the premises at any time (other than in or on a vehicle used to transport the tyres to or from the premises), or
(c)  more than the following amounts of waste (other than waste referred to in paragraph (a) or (b)) are stored on the premises at any time—
(i)  in the case of premises in the regulated area—more than 1,000 tonnes or 1,000 cubic metres,
(ii)  in the case of premises outside the regulated area—more than 2,500 tonnes or 2,500 cubic metres, or

(d)  more than the following amounts of waste (other than waste referred to in paragraph (a) or (b)) is received per year from off site—
(i)  in the case of premises in the regulated area—6,000 tonnes,
(ii)  in the case of premises outside the regulated area—12,000 tonnes.

(4) For the purposes of this clause, 1 litre of waste is taken to weigh 1 kilogram.

The Dictionary to the POEO Act (as in force as at the date of the commencement of all three proceedings) included the following definitions:

clean-up action, in relation to a pollution incident, includes—
(a) action to prevent, minimise, remove, disperse, destroy or mitigate any pollution resulting or likely to result from the incident, and
(b) ascertaining the nature and extent of the pollution incident and of the actual or likely resulting pollution, and
(c) preparing and carrying out a remedial plan of action.
It also includes (without limitation) action to remove or store waste that has been disposed of on land unlawfully.
…
occupier of premises means the person who has the management or control of the premises.
…
pollution incident means an incident or set of circumstances during or as a consequence of which there is or is likely to be a leak, spill or other escape or deposit of a substance, as a result of which pollution has occurred, is occurring or is likely to occur. It includes an incident or set of circumstances in which a substance has been placed or disposed of on premises, but it does not include an incident or set of circumstances involving only the emission of any noise.

Section 191 of the Evidence Act 1995 (NSW) (Evidence Act) provides as follows in relation to agreed facts:

191 Agreements as to facts
(1) In this section—
agreed fact means a fact that the parties to a proceeding have agreed is not, for the purposes of the proceeding, to be disputed.
(2) In a proceeding—
(a) evidence is not required to prove the existence of an agreed fact, and
(b) evidence may not be adduced to contradict or qualify an agreed fact,
unless the court gives leave.

(3) Subsection (2) does not apply unless the agreed fact—
(a) is stated in an agreement in writing signed by the parties or by Australian legal practitioners, legal counsel or prosecutors representing the parties and adduced in evidence in the proceeding, or
(b) with the leave of the court, is stated by a party before the court with the agreement of all other parties.

Section 192 of the Evidence Act provides as follows in relation to the court giving leave:

192   Leave, permission or direction may be given on terms
(1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.
(2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account—
(a)  the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and
(b)  the extent to which to do so would be unfair to a party or to a witness, and
(c)  the importance of the evidence in relation to which the leave, permission or direction is sought, and
(d)  the nature of the proceeding, and
(e)  the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.

Relevant legal principles

Separate consideration of the three charges

Although the three charges were heard together, the Court must consider the charges separately. In Environment Protection Authority v O’Brien,^[1] Robson J said at [110] that “[i]t would be impermissible to reason that if the prosecutor proved that [the defendant] committed one offence, he must necessarily have committed another, or the others” citing R v Filiopovic; Gelevski^[2] at [127] (Curtain AJA). Robson J further said at [110] that “in circumstances where the prosecutor has relied upon one body of evidence in respect of the charges, I may nevertheless, in reaching my verdict(s), consider the totality of the evidence in the case as relevant to each charge”: citing Sutton v R (Brennan J).^[3]
1. [2023] NSWLEC 118 at [110] (Robson J).
2. (2008) 181 A Crim R 83 at [127]; [2008] VSCA 14 at [127] (Curtain AJA).
3. (1984) 152 CLR 528; [1984] HCA 5 (Brennan J).

Burden and standard of proof

For each charge, the prosecutor bears the onus of proof to establish the guilt of the defendant beyond reasonable doubt: s 141(1) of the Evidence Act.
The legal onus of proving that a person had a reasonable excuse for their failure to comply with a notice lies with the defendant: s 256(1) of the POEO Act. The standard of proof for the defendant is on the balance of probabilities: s 141(2) of the Evidence Act, and Environment Protection Authority v Sydney Drum Machinery Pty Ltd (No 4)^[4] (Sydney Drum Machinery (No 4)) at [353] (Craig J).
4. [2016] NSWLEC 59 at [353] (Craig J).

Notices under ss 91, 96 and 101 of the POEO Act

In Precision Products (NSW) Pty Limited v Hawkesbury City Council^[5] at [101], Allsop P (Beazley and McColl JJA agreeing) said that the following could be stated from the provisions in ss 91, 96 and 101 of the POEO Act:
5. (2008) 74 NSWLR 102; [2008] NSWCA 278 (Allsop P) (Beasley and McColl JJA agreeing).

101. From the above provisions the following can be stated:
(1) The exercise of the power in s 91 is one of judgment for the regulatory authority (or the EPA: s 91(2)). The notice “may” be given.
(2) The power in s 91 is not exercised for the benefit of either the occupier or the person to whom it is given; rather, the exercise of the power is only for the benefit of the public by dealing with, or preventing, the escape of polluting substances.
(3) The nature of the possible action contemplated by the phrase “cleanup action” in s 91 is likely, in the ordinary course, to place a financial burden on the person obliged by the notice to act.
(4) The notice in s 91 must be complied with, unless a person has a reasonable excuse.
(5) The circumstances that may give rise to a clean-up notice under s 91, or a preventative notice under s 96, or a prohibition notice under s 101 are not clearly segregated. There is, to a degree, a hierarchy of importance or seriousness, but there is potential for overlap of the sections. This multiplicity of bases for action should not be used to limit the scope of any particular step provided for. All are concerned with the public good, by protecting the environment.
(6) The relevant suspicion or belief or opinion is as to the occurrence of a pollution incident (s 91), or the carrying on of an activity in an environmentally unsatisfactory manner, including the occurrence of a pollution incident (s 96) or the serious matters of environmental damage (s 101). The relevant state of apprehension or belief is not one required (at least in terms of the provisions) to be judged having regard to the interests of the person or persons to whom the notice is directed.
(7) The financial consequences of the notices are, to a degree, dealt with. Parliament has not, however, sought to create a statutory avenue for compensation should the views of the relevant authority turn out to be wrong.
(8) The power in s 91 (and ss 96 and 101) is compulsory and enforced by the criminal law. To that extent, an obligation to consider the interests of the person to whom the notice is directed may be seen as inherently in conflict with the direction and focus of compulsory state power.

In Udy v Hornsby Shire Council^[6] at [14], Jagot J said in relation to ss 91, 96 and 101 of the POEO Act:

The circumstances in which environment protection notices may be issued, and the actions such notices may require, self-evidently overlap to some extent. For example, a pollution incident can trigger (in terms) a clean-up notice (s 91(1)) and a prevention notice (s 95 and s 96(1)). A pollution incident of sufficiently serious consequence may also trigger a prohibition notice (s 101(1)).

6. [2007] NSWLEC 242 at [14] (Jagot J).

Agreed facts

On 21 August 2023, the parties filed an extensive statement of agreed facts (the SOAF). On 24 August 2023, the SOAF was substituted with an amended agreed statement of facts and a supplementary statement of agreed facts (the SSOAF). The amended SOAF and SSOAF form the final SOAF (the final SOAF). The following recitation of agreed facts is largely derived from the final SOAF with some immaterial alterations in light of the Court’s own review of the underlying documents and reordering and editing of the document agreed by the parties.
One of the facts agreed in the final SOAF was that the “EPA is the appropriate regulatory authority and may institute proceedings for offences against the Act: s 217(1) of the Act”. A dispute arose during the hearing as to the meaning of the agreed fact and whether the defendant could resile from that agreed fact. That is addressed below at [210]-[211], and [237]-[241].

The premises

The premises are located on Lot 29 of Deposited Plan 221102 at 62 Kyle Street, Rutherford on land zoned IN1 Industrial pursuant to Maitland Local Environmental Plan 2011 (NSW). In the satellite photo reproduced below, the red site boundary shows the general location of the premises in Rutherford:

The following structures are located on the premises:

a brick office building, including a laboratory, on the northern frontage to Kyle Street;

plant buildings associated with former waste oil processing facilities;

a spill containment system (the spill containment system) comprising “9 bunded areas around approximately 70 above ground tanks”, built on concrete hardstands with drains which drain liquids to an underground tank with approximately 60,000 litres (L) of capacity (the underground tank) (together, the system);

access roads; and

various sheds and storage buildings across the premises.

The site layout diagram below depicts the various structures on the premises (the site diagram):

The site diagram depicts the following features of the premises:

bunded areas described in black rectangle-shaped labels and marked in grey lines, including the areas marked:

southern tank farm (the southern tank farm);

tank farms 112 and 108 (tank farm 112 and tank farm 108);

drum tank farm (the drum tank farm);

waste water treatment plant (the waste water treatment plant); and

process area tank farm (the process area tank farm);

above ground tanks marked as circles with identifying tank numbers;

plant marked in purple; and

access roads marked in green.

There have been changes to the structures on the site from time to time, and the parties did not agree that the site diagram reflects the arrangement of structures on the site at all relevant times. However, the site diagram was referred to in the final SOAF.
A stormwater canal runs adjacent to the eastern boundary of the premises, and joins Stony Creek approximately 20 metres (m) south of the premises. The southern part of the premises is covered in vegetation extending to the southern boundary of the premises adjacent to Stony Creek. Stony Creek flows into Fishery Creek, Wallis Creek and the Hunter River, as shown on the map of watercourses provided to the EPA by WaterNSW below:

The defendant, Glowbye and Truegain

The defendant and Glowbye Pty Ltd (ACN 054 785 054) (Glowbye) are the registered proprietors of the premises as tenants in common in equal shares. Since 29 November 1990, the defendant has been a registered proprietor of the premises. Since 14 January 1994, Glowbye has been a registered proprietor of the premises. On 28 June 2020, Glowbye was deregistered by the Australian Securities and Investments Commission (ASIC). As a consequence of Glowbye’s deregistration, its interest in the premises is vested in ASIC pursuant to s 601AD of the Corporations Act 2001 (Cth). Until Glowbye was deregistered in 2020, from 2022 the defendant was the sole director and secretary of Glowbye.
On 12 October 2021, the defendant became bankrupt, as a consequence of which his interest in the premises is vested in the trustee in bankruptcy pursuant to s 58 of the Bankruptcy Act 1966 (Cth).
Between 26 March 1992 and 3 February 2022, the defendant was a director of Truegain. Between 26 March 1992 and 26 August 2016, the defendant was the sole director of Truegain. Between 14 September 2016 and 3 February 2022, Truegain was under administration. On 3 February 2022, Truegain was deregistered.

Truegain’s activities at the premises between 7 December 2000 and 1 April 2016

Between 7 December 2000 and 1 April 2016, Truegain undertook the scheduled activities of waste oil processing and waste storage at the premises under Environment Protection Licence no 7638 (the Truegain EPL). During this period, Truegain received, stored and processed waste oils and waste water at the premises by refining and processing waste oils into re-usable petroleum-based products, and processed waste water for discharge to a sewer spill containment system operated by the Hunter Water Corporation (Hunter Water).
Truegain also conducted waste oil processing activities at the premises with Australian Waste Oil Refineries Pty Ltd (ACN 081 415 661) (AWOR). The defendant was a director and secretary of AWOR until it was placed into liquidation on 14 September 2016, and deregistered by ASIC on 17 September 2018.
Between 19 October 2005 and 24 February 2016, Truegain held a major trade waste permit issued by Hunter Water which permitted Truegain to discharge liquid waste from the premises to sewer, subject to certain conditions (the trade waste agreement). On 24 February 2016, Hunter Water directed Truegain to stop discharging waste water into Hunter Water’s sewers due to Hunter Water detecting per- and poly-fluoroalkyl substances (PFAS) in discharges from the premises in samples taken by Hunter Water on 12 February 2016 (the Hunter Water direction). This fact was agreed on the basis that:

prior to February 2016, the defendant was not aware of the presence or likely presence of PFAS on the premises;

the trade waste agreement between Truegain and Hunter Water did not require monitoring for PFAS or place any limits on discharge of PFAS;

the Truegain EPL did not require monitoring for PFAS; and

the source of PFAS at the premises has not been identified.

It was agreed that the Hunter Water direction “caused significant difficulties for Truegain’s continued operations, as it was prevented from discharging any waste water from the [p]remises, including treated waste water generated from waste oil processing and waste water from toilets and offices on the [p]remises.”
On 9 March 2016, the EPA varied the Truegain EPL to require it to monitor rainfall at the premises and to conduct a mandatory environmental audit. On 1 April 2016, the EPA suspended the Truegain EPL by suspension notice no 1539166 (the suspension notice). On the same day, the EPA wrote to Truegain and directed it to store all waste in adequately bunded areas.
On 23 August 2016, the EPA inspected the premises and identified oily water in the main bunds. The EPA subsequently wrote to the defendant and Mr Paul Lucas, the then directors of Truegain, to remind them of Truegain’s obligations under prevention notice no 1524877 to manage accumulated rainwater in the bunds at the premises. On 26 August 2016, Mr Lucas replied stating that he was retiring that day from Truegain and that all further decisions and administrative and financial control lay with the managing director of Truegain, the defendant.
As at 8 September 2016, there were approximately 200,000 L of waste oil and 60,000 L of PFAS-contaminated waste water stored at the premises. On 15 September 2016, JLA Insolvency & Advisory Pty Ltd, the administrator of Truegain, disclaimed Truegain’s liabilities for the premises. On the same day, Mr Javier Parent, the former manager of Truegain, advised the EPA that he had informed the administrator’s agent of the ongoing obligations under the conditions of the suspension of the Truegain EPL and the prevention notice no 1524877.
On 19 September 2016, EPA officers inspected the premises and observed that they appeared to be abandoned, that the bunds contained water apparently contaminated by hydrocarbons, and that the underground tank appeared full. On 26 September 2016, EPA officers again inspected the premises to investigate a complaint received by the EPA’s environment line that oily water from the premises was entering the stormwater drain. EPA officers observed that the underground tank was full and was overflowing, but that the bunds in the spill containment system had not overflowed.

Prevention notices given to Glowbye and the defendant on 30 September 2016

On 29 September 2016, the defendant met with EPA authorised officers Mr William George and Mr Michael Howat in relation to a draft prevention notice. During that meeting, the defendant acknowledged the following:

it was his responsibility to prevent contaminated water discharging from the premises;

the EPA would take legal action against him should pollution of waters occur;

the underground tank required immediate attention to prevent waste water from discharging to the stormwater system; and

it would be crucial to engage or employ someone to manage the site to ensure that all waste water would be managed appropriately to prevent any discharge from the premises.

On 30 September 2016, the EPA gave prevention notice no 1545252 to the defendant and prevention notice no 1545280 to Glowbye pursuant to s 96(2) of the POEO Act. The prevention notices required the removal and lawful disposal off-site of all liquids or waste materials within bunded areas (including waste oil and contaminated rainwater) to prevent discharge of contaminated water from the premises.
Mr Konstanin (Kosta) Vujkovic is an engineer and was formerly a maintenance and production manager employed by Truegain until its liquidation in September 2016. Mr Vujkovic says that he was directly employed by the defendant on a casual basis from about October 2016 until the defendant ceased paying him in or about mid-2019.
Between 12 October 2016 and 11 February 2017, the defendant and the EPA corresponded by email.
On 17 January 2017, Clean-tech Partnerships Pty Ltd (CTP) was registered as an Australian company. On 9 June 2019, CTP was deregistered. Between 17 January 2017 and 9 June 2019, the defendant was one of three directors of CTP and its secretary.
On 5 April 2017, the defendant wrote to the EPA and advised:

Due to the recent rainfall, the bunds are filling up with rainwater. The main southern tank farm is approximately 80% full and the others are approximately 50% full. I do not have the financial resources to empty the bunds or tanks. You requested my accountant’s details and I emailed them you on 10 March 2017. I’ve instructed my accountant to respond to any request regarding my financial position. In October 2016, Toxfree removed 40,000[L] for $10,106.80. The breakdown is as follows: 40,000 [L] x 0.13 [cents] per litre plus liquid waste levy @ $72.70 per tonne plus truck hours = 6 x $170 per hour (2 loads) and two waste tracking fees @ $30 each. TOTAL COST = $ 9188 PLUS GST = $10,106.80.

The nature and extent of the defendant’s compliance with the initial clean-up notice in the period between June 2017 and March 2018

On 28 April 2017, the EPA gave draft notice of clean-up action no 1548804 to the defendant, inviting comment. On 30 May 2017, the defendant sent a letter to the EPA in response to the draft clean-up notice. On 5 June 2017, the EPA gave the initial clean-up notice to the defendant pursuant to s 91(1) of the POEO Act. At the time the initial clean-up notice was given, the EPA was the appropriate regulatory authority under s 6(1) of the POEO Act as the premises were still subject to the Truegain EPL, and the defendant was the owner and occupier of the premises. On 26 June 2017, the defendant sent a letter to the EPA in response to the initial clean-up notice.
On 10 July 2017, EPA officers inspected the premises and observed as follows:

Spill containment system.
• A murky dark black/yellow colour liquid was observed in the concrete bunding to the drum and southern tank farms.
• The liquid height in the bunds varied from approximately a third to three quarters full.
• Liquid was pooling and tricking on the concrete apron outside the bunding adjacent to the join between the drum farm and southern tank farm. This liquid appeared to be seeping from inside the bunding to outside thorough a metal plate at the join of the two (2) bunded area.

On 10 July 2017, the defendant spoke with EPA authorised officer Ms Jenny Lange. Ms Lange’s file note records the defendant telling her as follows:

Where managing the site as best we can with what we’ve got.
• Has a site manager Kosta
• Is hampered by not having the money to undertake works
• Restricted by Hunter Water Corporation, who require PFAS standards below enHealth guidelines. If it was enHealth guidelines he could treat the water himself.
• Believes has the technology to treat PFAS by separation of water with filtration and distilling and then activated carbon.
• In relation to the notice, he has no assets but has been managing the water generation on the site thorough installation of gauges on all the tanks, pumping the water into the tanks and evaporation. This has been quite good.
• The hydrocarbon film to the top of the water has been removed and pumped into the tanks. Occurred during January to May.
• Believes bunding area is at worst 70% and at best 40% full.
• There are no suitable alternatives for the removal and treatment of the PFAS.
• [the defendant] said that he is hoping to meet with Kosta towards the end of this week to come up with a plan for the site.

On 25 July 2017, the defendant sent an email to the EPA attaching photographs of him “locking off” tanks at the premises. On 1 September 2017, EPA authorised officer Ms Lange conducted an inspection of the premises with the defendant. Ms Lange’s notes provide as follows:

• [the defendant] said the underground tank forming part of the spill containment system has a capacity of approximately 50,000[L]. This tank was observed to have a dark to black colour liquid in it and was very close to capacity. [The defendant] stated that they would have to pump it out soon to the on-site storage tanks.
• [the defendant] said that the tank is pumped out into the existing tanks on site as they don't have any oil in them they have been used to hold water from the bund areas.
• Prior to water/oils entering the underground tank, it goes thorough an under and over oil separator. In the separator was a dark coloured liquid with very little colour or consistency change between each of the chambers. The separator appeared to be at least 3/4 full.
• Numerous intermediate bulk containers (IBC's), with the wording oily water were stacked along the driveway access.
• Sumps and grates to the concrete handstand areas were mostly full with black coloured liquid or sludge.
• A dark green/brown coloured liquid was in the concrete bunded area of the southern tank farm, ranging from approximately 200-400mm in height (10% -60% capacity). An oily sheen was observed to the top of the liquid in some locations. [The defendant] said that the tanks have a capacity of approximately 3 million litres.
• A dark green/brown coloured liquid was observed in the tank farm bunded area. The volume of liquid in this area was less than was observed on my inspection of 10 July 2017. No liquid was observed escaping from the tank farm bund. [The defendant] said that there are approximately 100 drums in this area. and the drums contained oily rags. The drums were mostly stacked two (2) high with some at single height.
• IBC's containing oil were located in a bunded area adjacent to the [waste water treatment plant tank farm]. A black coloured oil was in the bund and close to overflowing indicating that one or some of the IBC had been damaged and leaked into the bund.
• A murky green/grey liquid was in the bund area to the [waste water treatment plant] Tank Farm (approximately 1/3 full).
• A number of tanks throughout the site were in a rusty condition.
• 11 shipping containers were located behind the [waste water treatment plant] tank farm, which [the defendant] said some are full with drums with grease oil and others with work equipment.
• At the rear at the premises was a 'grave yard' of empty tanks, tankers, equipment and machinery.
• I ran thorough the clean-up notice 1548804 directions with [the defendant]. I said “Have you removed and disposed of the liquid from the [s]pill containment system?” (direction 1 of the Notice), [the defendant] said “No one will take it”. I asked similar questions for directions 2-4 and [the defendant] had the same response “No one will take it”.
• [The defendant] said he had quotes from Toxfree to take the waste water but it's $800 per tonne and clean-away cannot take it.
• Currently on-site they are [trailing] activated carbon filters on the premises to remove PFAS from the oily water.
• [The defendant] was requested to undertake an audit of the volume and capacity left in the tanks on site.
• Kosta is managing the premises and is on site for approximately 5 days a week for 4 hours a day.

On 5 January 2018, the EPA revoked the Truegain EPL. On 20 March 2018, EPA authorised officer Ms Lange inspected the premises with Mr Vujkovic and Mr Steve Matthews, the general manager of CTP. Ms Lange’s notes provide as follows:

I introduced myself and spoke with Mr Matthews and we had a conversation to the effect of:
• Mr Matthews is the general manager for a new company Clean-tech partnerships Pty Ltd (CTP), who intends to lease the premises from [the defendant].
• Mr Matthews has previous involvement with a number of liquid waste companies.
• CTP is proposing once the site is cleaned-up to lease the premises and commence a business of removing and treating PFAS, and to have RMIT as a technological partner in the process.
• For now Mr Matthews has been seconded from CTP to the property owner [the defendant] to clean-up the premises.
• Mr Matthews intended to come and talk with the EPA about what they can do with the site, but his first priority has been to discuss with Hunter [W]ater (Greg Heeney) getting a trade waste agreement. First starting with a domestic connection.
• Also looking at removing IBC's and drums - believes mostly hydrocarbon impacted waters.
• Kosta is on site everyday between 8am and 4pm. He is employed by [the defendant].
• Mr Matthews said that he would email thorough a proposal for removing waste from the premises.
• I advised it is ok to remove waste provided it meets with requirements of clean-up notice and removed to a lawful facility with documentation. I suggested taking in-situ photographs prior to removal and matching with testing and disposal documentation.
• Considering getting a mobile plant to process the contaminated liquid on the premises. I advised to ensure have consents and licences.
• I advised that wet weather is forecast and need to ensure no discharges into the adjoining creek.
OBSERVATIONS
• The level in the bunds was the lowest I had seen it, approximately 400-500mm freeboard in the southern tank farm. Green shade to the bottom of the bund floor.
• The drum farm was almost completely empty.
• Kosta advised the underground tank is at full capacity.

The EPA’s inspections in March and April 2018, and the engagement by the EPA of Tox Free and GHD

On 21 March 2018, EPA authorised officer Ms Lange made an unannounced inspection of the premises. Ms Lange’s notes of the inspection provide as follows:

• The [p]remises had commenced to flood, a liquid with a hydrocarbon sheen was across the driveway to a depth of up to 200-300mm at the southern end of the driveway and adjacent to the underground tank,
• I could not see the grates to the oil separator near the underground tank thorough the liquid.
• The driveway was flooded from the front to the rear of the southern tank farm.
• The bunds were at approximately 50% full and rapidly filling.
• A strong hydrocarbon odour was present.
• I went along the rear of the buildings adjoining the creek and observed liquid rushing from the [p]remises through a rectangular shape hole at the base of the colourbond wall sheeting. Liquid was flowing from the hole over the ground and into the creek.
• The liquid was flowing from the driveway into and thorough the building and then out as described above into the creek.
• Mr Matthews and Kosta said they had not detected the discharge.
• I notified [Fire and Rescue NSW] (FRNSW) to undertaken an assessment of the premises.
• FR arrived on the premises at approximately 1.30pm, it was agreed to sandbag across the entrance to the premises, the entrance to the building, the rear of the western driveway and rear of IBC's at the end of the driveway. Steve Matthews and Kosta agreed to pump from the underground tank and into the southern tank farm to reduce the immediate flooding.
• FRNSW checked the creek and advised that foaming had been observed in Stony Creek at the end of Gardner Street. Booms were installed at this location.

Ms Sims submitted that Mr Pullinger’s evidence should be accepted. His affidavit was read with limited objections. He had been challenged on his estimate of $2.5 million and said that “he was confident of that number, approximately”. At no point in cross-examination was it put to him that he was mistaken or lying about that estimate. His evidence was that he did not hold the books and records of Truegain and related entities because these were long ago delivered up to the respective liquidators. His financial arrangements during this period were conducted through related entities, including Glowbye, Donpat and Bellham. The prosecutor had conducted extensive investigations into the defendant’s financial position, the result of which was consistent with the defendant’s evidence.

(4) The actual steps taken by the defendant to attempt to comply with the notices and factors outside the control of the defendant that inhibited his ability to comply with the notices

For the purpose of determining whether he had a reasonable excuse for failing to comply, or failing fully to comply with direction 7 and direction 10 of the varied clean-up notice, and with the prohibition notice, the defendant submitted that it was relevant to consider the steps taken by him to seek to comply with those requirements, and the steps taken by him to seek to comply with other environmental obligations. The other environmental obligations submitted to be relevant were the defendant's obligation to comply with “an earlier prevention notice”, the requirement not to pollute waters, other directions in the varied clean-up notice, and other directions (formal and informal) given by the prosecutor.
The defendant submitted that when Truegain went into liquidation in September 2016, there were various waste and other materials on the premises, including waste hydrocarbons, and the premises were contaminated with PFAS. As rain fell on the premises, it accumulated in the bunds and “underground tanks” and became contaminated with hydrocarbons and PFAS. There was a risk, without active management, that contaminated water would be discharged from the premises, resulting in water pollution. From time to time, the prosecutor directed the defendant to take steps to avoid such discharges. Between October 2016 and mid-2019, the defendant took steps to avoid discharge of contaminated water from the premises, including pumping water from the “underground tanks” into the bunded areas and pumping water from the “underground tanks” or bunded areas into the above ground tanks to create freeboard in the underground tank and bunds. The prosecutor advised the defendant that “it would be crucial to engage or employ someone to ensure that all wastewater would be managed appropriately to prevent any discharges from the [p]remises”. He employed Mr Vujkovic to do this.
The defendant referred to the actions he was required to take specified in the prevention notice given on 20 September 2016 which included removing from the premises and lawfully disposing of liquids contained within the underground tank and bunds. On 5 October 2016, he arranged for all liquid waste materials within the underground storage tank and associated pits to be removed and disposed of by Tox Free. He attempted to arrange for removal and disposal of the liquid within the bunds, but was unable to find a suitable contractor once it was identified that the liquid was contaminated with PFAS.
The initial clean-up notice required him to remove from the premises and lawfully dispose of all liquid from the spill containment system (bunds, underground tank and pits) by 23 June 2017, and within 48 hours of any rainfall event. He “attempted to identify and engage a waste transport operator and waste disposal facility to remove and lawfully dispose of the liquid” from the spill containment system. He was “unable to do so, so continued to manage water on the [p]remises by … pumping from the underground tank into the bunds and above ground tanks”. Once it was discovered that the liquid contained PFAS, it became impossible for him to comply with the initial clean-up notice because there were no waste facilities within NSW licensed to receive PFAS material, as was agreed by Ms Marler (director, Hunter Region, EPA). The defendant “investigated whether the wastewater could be treated onsite and the treated water transported from the [p]remises for disposal or disposed of into the sewer (with the appropriate approval from the water authority).”
Mr Matthews (the general manager of CTP) put together a plan, set out in a letter to the prosecutor dated 29 March 2018, which had been prepared in consultation with the defendant and Mr Vujkovic for cleaning up the premises, included some steps required to comply with the initial clean-up notice and other steps. Mr Matthews consulted with mobile waste operators and gave his best estimate of the time required to carry out the steps. Mr Vujkovic and the defendant both recalled that the EPA had told them that the timeframes for compliance with the varied clean-up notice were based on this plan. The defendant submitted that, as explained by Mr Matthews, a number of mobile waste operators were considered, the only operators then licensed to process PFAS being South Coast Liquid Treatment Pty Ltd (South Coast Liquid Treatment) and Haldon. South Coast Liquid Treatment was eliminated because it was located too far away. The defendant obtained a quote from Haldon which “may have been a similar price to that of EPS”. EPS was selected because the defendant believed that it had the capability to treat the water and had a convenient facility in Newcastle. Although EPS did not have an EPL, the defendant understood that one could be obtained within 30 days. Mr Matthews gave evidence that EPS was his preferred operator. Mr Klepetko, (principal technical advisor of waste assessment, EPA) gave evidence that “every circumstance is different, and a particular plant can't necessarily treat every circumstance where PFAS is present in liquid waste”.
The defendant also referred to EPS having applied on 1 May 2018 for an EPL which was granted on 29 August 2018. The defendant was “not involved in and had no control over the application or determination of the application.” As set out in the affidavit of Mr Klepetko, the assessment of an EPL application is “technical and involved numerous correspondence between EPS and the EPA licensing team”. The day after the EPS EPL was granted (29 August 2018), the defendant entered a contract with EPS for mobile waste treatment on the premises. On 13 September 2018, EPS mobilised to the site, and on 15 November 2018, commissioning was complete and waste processing had commenced. By about February 2019, water from the bunds and the underground tank was processed in compliance with direction 6. The timeframe for completing this was “much longer than the [d]efendant had anticipated based on the [Mr Matthews’] letter dated 29 March 2018”, and was incorporated into the varied clean-up notice. The defendant submitted that “[t]he delays were not within the control of the [d]efendant”. In April 2019, EPS ceased processing waste water at the premises, by which time EPS had processed 1,866,900 L from the underground tank, pits and bunded areas, and had not commenced treating water from the above ground tanks.
The defendant submitted that he was also undertaking other activities to clean-up the premises to prevent pollution or contamination from the waste and other materials left behind after Truegain went into administration. Cleaning up the premises was also “required in order to be able either to establish a new business, to lease out the [p]remises, or to dispose of the [p]remises.” One of those options was required to fund the clean-up of the premises. The defendant engaged Mr Matthews “to assist him to clean-up the [p]remises for these future uses and to comply with the varied clean-up notice.” Mr Matthews arranged for Mr Vujkovic and a range of contractors to “carry out general clean-up of the [p]remises and reported these activities to the EPA regularly.” The general clean-up included general site maintenance, including repairs to buildings and electricity, and packaging waste grease in drums for removal by Environmental Treatment Solutions (ETS); the collection of drums of used oil filters by Coast and Valley Oil; the pumping of waste oil out of storage tanks and taken by Coast and Valley Oil; the loading of solid waste into skip bins and taken by JR Richards to landfill; and the taking of scrap steel by Matthews Metal Management. Until about early 2020, Mr Vujkovic continued to attend the premises periodically to manage water accumulating in the underground tank and pumping it into the bunds. After March 2018, no more water was pumped into the above ground tanks.

Prosecutor’s submissions on the defence of reasonable excuse in relation to the direction 7 charge, the direction 10 charge, and the prohibition notice charge

In relation to the defence of reasonable excuse, in its opening submissions, the prosecutor submitted, uncontroversially, referring to Sydney Drum Machinery (No 4) at [353] (Craig J), that the onus falls on the defendant to prove the existence of reasonable excuse on the balance of probabilities. In closing submissions, the prosecutor submitted that the two bases for a defence of reasonable excuse upon which the defendant had indicated he would rely were that:

compliance with the notices was not technically possible; and

financial circumstances resulted in an inability to comply with the notices.

(1) Whether compliance with the notices was technically possible

In relation to whether compliance with the notices was technically possible, the prosecutor submitted that the evidence “in totality” was that EPS had the technical capacity to undertake the processing and disposal of the waste, but not in the time required, and that the defendant did not make any application to extend the time for compliance and there was no onus on the EPA to make such an application. The evidence of Ms Marler was that such an “extension would likely have been granted, if applied for, to enable EPA to obtain the necessary licence”. Mr Matthews' evidence was that Haldon may have had capacity and already held the necessary licence, but the decision was made to engage EPS instead. The timeframes in the varied clean-up notice were set on the basis of the letter of 29 March 2018 sent on behalf of the defendant by Mr Matthews as the defendant’s employee and/or agent, and not unilaterally by the EPA.

(2) Whether the defendant’s financial circumstances resulted in an inability to comply with the notices

In relation to financial circumstances resulting in an inability to comply, the prosecutor also referred to Environment Protection Authority v Lithgow City Council^[30] (EPA v Lithgow City Council) at [68] (Preston CJ of LEC). There his Honour said:

Compliance with environmental laws is not optional; it is not contingent on a person having sufficient funds or sufficient willingness to expend funds to comply with environmental laws. The laws mandate compliance; it is a criminal offence not to comply. Persons must assign first priority to compliance with the laws and arrange their organisational structure, management, human resources and financial resources to ensure that this occurs.
30. [2007] NSWLEC 695 at [68] (Preston CJ of LEC).

The prosecutor submitted that on the defendant’s evidence, had the defendant paid EPS for the remainder of the contract, a sum of about $100,000, the initial clean-up notice and varied clean-up notice would have been fully complied with. This amount should have been prioritised over other expenses “for which there is evidence the defendant engaged after EPS left the site in April 2019”. Further, the prosecutor submitted, the defendant had conceded that of the $2.5 million he asserted (but could not quantify) spent on remediating the premises, he spent significant sums on exploring options to sell the property, legal fees, other clean-up actions not the subject of the clean-up notice, and that he paid himself and his wife about $250,000 “in the relevant period” for living expenses. The defendant had not demonstrated on the balance of probabilities, that he prioritised the expenditure of available funds on the balance of the EPS contract to achieve compliance with the clean-up notice. Further, the defendant had failed to provide any evidence in the form of financial statements, profit/loss statements, tax returns or similar documentary evidence regarding his finances in the relevant period 2019 to 2020. The defendant’s affidavit evidence included assertions uncorroborated by any documentary evidence, his oral evidence did not provide further assistance as to his affairs “at the relevant time”, and he had failed to discharge his onus to prove, on the balance of probabilities, financial incapacity to comply with the notices.

Defendant’s submissions in reply on the defence of reasonable excuse in relation to the direction 7 charge, the direction 10 charge and the prohibition notice charge

In relation to the prosecutor’s submission that compliance with directions 7 and 10 of the varied clean-up notice and with the prohibition notice was technically possible, the defendant submitted in reply that it was not necessary for him to establish that compliance was not technically possible, the defence being one of “reasonable excuse”, not “impossibility”. However, it was notable that the prosecutor conceded “that it was not possible to comply in the time required”, and that this “would provide a reasonable excuse for at least part of the charge period”.
In relation to the prosecutor’s submissions on “financial excuse”, the defendant referred to the observations of Preston CJ of LEC in EPA v Lithgow City Council at [68], and submitted that that case was in a different statutory context where the chief judge considered the sentence to be imposed for the offence of a failure to comply with the conditions of an EPL, and there was no defence of reasonable excuse available to that offence. By contrast, where, as here, there is a statutory defence of reasonable excuse, not having the funds to comply with notices can provide a defence. In relation to the prosecutor’s submissions concerning financial circumstances relating to an inability to comply with the notices, the defendant said that the prosecutor was concerned with the payment of about $100,000 owing to EPS in April 2019. The defendant's evidence was that the trustee of the Gevin loan refused to release funds from about March 2019. This was consistent with the trust ledger showing a balance of $400 on 20 February 2019. All payments out of the account after that date had equivalent payments into the account. Accordingly, there were no funds in the account to pay the EPS invoice.

Conclusion on the defence of reasonable excuse in relation to the direction 7 charge

In Sydney Drum Machinery (No 4), the defence of reasonable excuse was raised in the context of an offence of failing to comply with a clean-up notice which required the recipient immediately to engage a suitably qualified expert to isolate the stormwater retention tank so that any liquid waste spilt at the premises did not leave the premises by 5.00pm Tuesday 17 January 2012. The defence was considered by Craig J at [262]-[264] (emphasis added) as follows:

262. The only measures taken by Mr Osman-Kerim to address the 17 January Notice are those to which I have already referred. … the evidence discloses that upon receipt of the oral notice on 16 January 2012, Mr Osman-Kerim telephoned Mr Sidaros, requesting that he attend the [p]remises to “look at the matters raised” in the clean-up notice. He understood that Ms Kemp contacted another plumber who came to the [p]remises but indicated that he was unable to undertake the required task. When Mr Sidaros did not attend promptly, he was contacted “on a few occasions” thereafter concerning the work but had not attended to undertake the work by the time the second fire occurred on 23 January. Mr Sidaros was the only plumber that Mr Osman-Kerim contacted.
263. I am not satisfied that, on the balance of probabilities, Mr Osman-Kerim has established a reasonable excuse on the part of the Company for its failure to comply with the 17 January Notice. The evidence does not disclose any particular or unreasonable difficulty in complying with that Notice. The fact that a plumber was contacted who did not arrive when he promised to do so does not, to my mind, constitute a reasonable excuse. If Mr Osman-Kerim was genuine in his endeavours to have what ultimately proved to be a task that could be completed within the space of a little more than two hours on an urgent basis, it is inconceivable that he would make contact with only one plumber and accept that plumber’s statement that he would be there “as soon as I can”. The fact that the prosecutor was able to negotiate with that same plumber to undertake the task and then to have the task undertaken all on the same day, rather suggests that the efforts of Mr Osman-Kerim to secure the services of that plumber were not consistent with establishing the necessary will to address the requirements of the Notice.
264. … No reasonable explanation emerges from the evidence as to why a plumber could not be retained to carry out the work between 17 January and 30 January.

The facts of Sydney Drum Machinery (No 4) are far removed from those of the present case which concern the removal of a significant volume of waste in a materially different physical environment.
In Sydney Drum Machinery (No 4), Craig J at [336]-[337] also made the following remarks about the phrase “reasonable excuse”:

336. … the phrase “reasonable excuse” derives its content and meaning from the context of the particular statute in which it appears, particularly having regard to the purpose of the provision to which “reasonable excuse” is a defence (Taikato v The Queen [1996] HCA 28; 106 CLR 454 at 464; SD v New South Wales Crime Commission [2013] NSWCA 48; 84 NSWLR 456 at [17]). The purpose of s 91(5) is a mechanism to punish non-compliance with a notice given under s 91(1) which, in turn, is directed to the prevention or mitigation of environmental harm. The defence of reasonable excuse does not import a choice on the part of the recipient of the notice as to whether he, she or it will comply.
337. In Corporate Affairs Commission (NSW) v Yuill [1991] HCA 28; 172 CLR 319 Dawson J said at 336 that reasonable excuse “aptly refers to any physical or practical difficulties in complying with” the statutory requirement. Although being considered in a different statutory context, his Honour’s observation is apt to be applied to the present offence. At least, factors having the character that he identified must be the primary focus of the reasonable excuse defence under s 91(5).

In Council of the City of Sydney v Blue Chips Franchise Pty Ltd^[31] Preston CJ of LEC considered the defence of reasonable excuse in the context of an offence of failing, without reasonable excuse, to comply with a requirement made by an officer of the Council of the City of Sydney in accordance with Division 1C of Part 6 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). The requirement made pursuant to s 119M(1) of the EPA Act was to produce “all documents” relating to 33 apartments. The decision was on appeal from the decision of Magistrate Atkinson who dismissed the charge, having found that the prosecutor had proved the elements of the offence, but that the defendant had a reasonable excuse for failing to comply.^[32] The chief judge concluded as follows at [39]-[40]:

39. I find that the Council has not established Ground 2, that there was no evidence for the Magistrate’s finding that there was a reasonable excuse for Blue Chips not to comply with the requirement. I agree with the reasons given by Blue Chips in its submissions. There was some evidence for both the conclusion that there was a reasonable excuse for Blue Chips not to comply with the requirement and the reason given for that conclusion that there was insufficient time to complete the searches for the information and provide all of it to Mr Stevens. The Magistrate summarised that evidence in her reasons.

40. It may be that there was other evidence that might have supported making different findings, but that does not show that the findings that the Magistrate did make were made without evidentiary foundation. Much of the Council’s argument was, at base, a challenge to the factual soundness and alleged illogicality of the findings made by the Magistrate. But neither a wrong finding of fact nor want of logic in fact finding is an error of law.
31. [2017] NSWLEC 24 (Preston CJ of LEC).
32. See Council of the City of Sydney v Blue Chips Franchise Pty Ltd (Local Court (NSW), 9 August 2016, unreported) (Atkinson LCM).

In Taikato v The Queen, the majority (Brennan CJ, Toohey, McHugh and Gummow JJ) said at 464 and 466 in relation to the use of the term “reasonable excuse” (citations removed):

“Reasonable excuse”
… The term “reasonable excuse” has been used in many statutes and is the subject of many reported decisions. But decisions on other statutes provide no guidance because what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of “reasonable excuse” is an exception.
…
… the reality is that when legislatures enact defences such as “reasonable excuse” they effectively give, and intend to give, to the courts the power to determine the content of such defences. Defences in this form are categories of indeterminate reference that have no content until a court makes its decision. They effectively require the courts to prescribe the relevant rule of conduct aper the fact of its occurrence. That being so, the court must give effect to their own ideas of what is a “reasonable excuse” in cases coming within s 545E(2) [of the Crimes Act 1900 (NSW)] even when it requires the courts to make judgments that are probably better left to the representatives of the people in Parliament to make.^[33]
33. The footnote at the end of the first sentence in the above extract from Taikato v The Queen refers to the following cases: Clough v Leahy (1904) 2 CLR 139 (refusal of witness to be sworn without reasonable excuse); R v Lichaa (1980) 3 A Crim R 355 (reasonable excuse for possession of drugs); Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1985) 156 CLR 385 (reasonable excuse for failure to produce documents); Ganin v NSW Crime Commission (1993) 32 NSWLR 423 (reasonable excuse for refusal to answer question); MacDonald v Australian Securities Commission (1994) 48 FCR 210 (failure without reasonable excuse to comply with notices to produce issued under the Australian Securities Commission Act 1989 (Cth)); R v Hill (1994) 74 A Crim R 59 (found in a place reasonably suspected of being used for the purpose of prostitution without reasonable excuse); Conners v Craigie (1994) 76 A Crim R 502 (reasonable excuse for offensive language).

In dissent in the result, Dawson J said at 470 that “[a] reasonable excuse is not more or less than an excuse which would be accepted by a reasonable person”.
In Burwood Council v Pan Pac Investments Pty Ltd^[34] Pain J considered the defence of reasonable excuse in the context of an offence of failing to comply with a requirement to provide information and records under s 119J of the EPA Act. At [122] Pain J said (emphasis added):

122. Ms Wu on behalf of Pan Pac has not established on the balance of probabilities that Pan Pac had a reasonable excuse not to provide the records sought in the time stated in the Notice. That Ms Wu submitted that to properly respond to the Notice she would have to go through her records for each resident which would take her a week to do and that she did not have time to do this is insufficient evidence to establish reasonable excuse in circumstances where the Notice was not proven to be oppressive and burdensome.
123. Ms Wu’s submission that the Notice was an invasion of privacy in the absence of a privacy notification as required under the Privacy Act (Cth) is legally incorrect. Section 10 of the Privacy and Personal Information Act 1988 (NSW) which specifies requirements for public sector agencies when collecting information has no application in the circumstances of a statutory notice issued by an authorised council officer performing law enforcement functions by virtue of s 23(3) of that Act.
124. That to fully comply with the Notice required Ms Wu in her view to supply her personal bank statements and tax returns does not arise from the terms of the Notice. That arises from how she chooses to conduct her personal affairs and those of Pan Pac. The request for company records in the Notice is reasonable.
125. Ms Wu’s offer to provide the documents physically in a suitcase if council officers asked her to come back another day did not place an onus on the council officers to ask Ms Wu to return. The responsibility to comply with the notice rests with the recipient.
126. That Ms Wu considered the request was unethical is irrelevant.
127. The Council has established the elements of the Notice offence beyond reasonable doubt. Pan Pac is guilty of the Notice charge.
34. [2018] NSWLEC 110 (Pain J).

I accept, as submitted by the defendant, that a “reasonable excuse need not be a single reason but could involve a number of reasons that together cause the defendant not to comply, or not fully comply, with a notice”. I also accept, as submitted by the defendant, that the reasons may vary over the charge period, and that the Court should assess the reasonableness of the excuse having regard to all the surrounding circumstances and the purpose of the legislation. Having regard to the features of the legislation summarised above at [265]-[266], I also find, as submitted by the defendant, that the purpose of the power to give a clean-up notice is to facilitate the rapid clean-up of a pollution incident.
I am not satisfied that the defendant has proved, on the balance of probabilities, a reasonable excuse for his failure to comply with direction 7 of the varied clean-up notice given on 18 May 2018 requiring him by no later than 5pm on Friday 31 August 2018 to process, remove and lawfully dispose from the premises all liquids within all above ground tanks. The defendant’s submissions in relation to reasonable excuse in relation to his failure to comply with direction 7 as well as direction 10 of the varied clean-up notice and with the prohibition notice essentially reduce to two propositions: compliance was not technically possible and his financial circumstances resulted in an inability to comply.
In relation to the direction 7 charge which concerns non-compliance with the direction given on 18 May 2018 requiring compliance by no later than 5pm on 31 August 2018, it may be, as submitted by the defendant, that between 31 August 2018 and mid-April 2019, he was focusing his efforts and resources on complying with direction 6 and direction 10 of the varied clean-up notice. Directions 6 and 10 provided as follows:

6. By no later than 5pm on Friday 29 June 2018, process, remove and lawfully dispose from the Premises all liquids contained within all onsite bunds and the underground tank and pit system.
…
10. Upon the completion of Direction 6, immediately remove and lawfully dispose of all liquids from the onsite bunds (or similar structures) and the underground tank and pit system as a result of the following circumstances:
a) after 10mm or more of rainfall in any 24 hour period at Maitland Airport or recorded on Premises; or
b) when the underground tank is over 1/3 full.

However, I am not satisfied, on the balance of probabilities, that between 31 August 2018 and 16 November 2020 the defendant had a reasonable excuse for failing to comply with direction 7 because compliance with the direction was not technically possible. In so finding, I have regard, in particular to the following:

as at the date of the varied clean-up notice, the liquids in the above ground tanks “was likely contaminated with waste hydrocarbons and PFAS due to contamination of the premises”;

Mr Matthews, general manager of CTP who commenced full-time employment at the site in March 2018, gave evidence that Haldon would also have been able to process the waste on the site; that Haldon was “cheaper than EPS”; that at that time, Haldon had the relevant EPL and EPS did not; that the timeframes in the varied clean-up notice were based on the timeframes in Mr Matthews letter to the EPA of 29 March 2018; and

Mr Pullinger gave evidence confirming that the variation of the clean-up notice in 2018 was to match the timetable for clean-up works that he formulated with Mr Matthews and EPS; that it was fair to say that he did not recall making a formal application to vary the varied clean-up notice; that he did not ask for more time to comply with the clean-up notice when he became aware that EPS did not yet have an EPL (not that he could recollect); and that when he engaged EPS, he was aware they did not have the relevant licence.

As it transpired, the plan put together by Mr Matthews, the general manager of CTP, for cleaning up the premises set out in the letter to the prosecutor dated 29 March 2018 which was prepared in consultation with Mr Vujkovic and the defendant was not achieved within the time required. However, the defendant did not make any application to extend the time for compliance, and there was no onus on the EPA to make such an application.
In relation to the defendant’s financial circumstances, again, it might be accepted that the resources to carry out the steps required to be taken in order to comply with direction 7 required considerable financial resources, and that there was a dispute in relation to the cost of disposing of untreated waste water from the above ground tanks. However, the EPS contract entered into by the defendant on 30 August 2018 for the payment by the defendant to EPS of amounts for scheduled items and milestone payments totalling $302,158.61. Accordingly, there was considerable force to the prosecutor’s submission that had the defendant paid EPS a sum in the order of $115,000 for completion of milestones 4 and 5, the clean-up notices may well have been fully complied with. I find that this amount should have been prioritised over other expenses.
It might also be accepted that after Truegain went into liquidation in September 2016, the defendant was unable to obtain income from the premises to fund the clean-up, and that the defendant spent considerable amounts in trying to clean-up the premises between 2016 and 2020. However, after Truegain went into liquidation in September 2016, there remained various waste and other materials on the premises, including waste hydrocarbons, and the premises were contaminated with PFAS.
I am not satisfied that the defendant has established on the balance of probabilities an inability to comply with direction 7 of the varied clean-up notice arising from his financial circumstances on 31 August 2018. There were, as summarised above at [183] and [285], significant other amounts spent by the defendant in the period 2016 to 2020 on matters not relating to remediating the premises, including exploring options to sell the property, legal fees, other clean-up actions not the subject of the clean-up notice, and the payment to the defendant and his wife of about $250,000 for living expenses. I find that the defendant did not prioritise the expenditure of available funds on the balance of the EPS contract to achieve compliance with direction 7 of the varied clean-up notice given on 18 May 2018, by no later than 5pm on 31 August 2018.
In particular, I find, as submitted by the prosecutor, that the defendant did not provide evidence in the form of financial statements, profit and loss statements, tax returns, accounting records or similar documentary evidence regarding his finances in the period from 18 May 2018 onwards (or at all) capable of permitting an assessment of his financial circumstances in the period of the direction 7 charge. The defendant no doubt found himself in deeply distressing financial circumstances in the period following the liquidation of Truegain in September 2016. His affidavit evidence was that he estimated his personal net worth in 2015 “would have been in excess of $45 million”, and he estimated that “about $35 million would have been through my shareholding in the Truegain Business and about $10 million would have been the net equity of the properties that I owned personally or with my wife, and some saving”. However, neither his affidavit nor his oral evidence provided the Court with assistance in relation to his financial affairs in the period of the direction 7 charge. The defendant did not assist the Court in relation to the circumstances surrounding the sale of the Hunter’s Hill property by his spouse on 2 September 2019 for $4,375,0000 or the $245,000 he drew on in superannuation.
The defendant has not established, on the balance of probabilities, a reasonable excuse for failing to comply with direction 7 of the varied clean-up notice during the charge period.

Conclusion on the defence of reasonable excuse in relation to the direction 10 charge

I have also found that the defendant has not proved, on the balance of probabilities, a reasonable excuse for not complying with direction 10 of the varied clean-up notice which concerned the period between 7 February 2020 and 5 November 2020. As in relation to the direction 7 charge, he has not established, on the balance of probabilities, that compliance with direction 10 was not technically possible. Again, the timeframe stipulated in direction 10 of the varied clean-up notice was on the basis of the letter of 29 March 2018 to the EPA sent on behalf of the defendant by Mr Matthews. The defendant made no application to the EPA to extend the time for compliance.
Nor, for the reasons given above at [307]-[317] in relation to reasonable excuse for not complying with direction 7 of the varied clean-up notice, do I find on the balance of probabilities that the defendant’s financial circumstances resulted in an inability to comply with direction 10 in the relevant period (namely, between 7 February 2020 and 5 November 2020). As I have found in relation to the direction 7 charge, the defendant’s evidence in relation to his financial circumstances included assertions in relation to his financial incapacity to comply with direction 10, uncorroborated by financial statements, profit and loss statements, tax returns, accounting records or similar documentary evidence.

Conclusion on the defence of reasonable excuse in relation to the prohibition notice charge

As set out above at [264], I have found that the prosecutor has established, beyond reasonable doubt, that the defendant failed to comply with the prohibition notice given 25 August 2020.
As with the direction 7 and direction 10 charges, I find that the defendant has failed to establish, on the balance of probabilities, that he had a reasonable excuse for failing to comply with the prohibition notice during the charge period.

Conclusion and orders

In proceeding 2020/327089, the Court makes the following orders:

Robert Lenard Pullinger is guilty of the offence against s 91(5) of the Protection of the Environment Operations Act 1997 (NSW) of, without reasonable excuse, not complying with direction 7 of the varied clean-up notice given on 18 May 2018 pursuant to s 110 of the Protection of the Environment Operations Act 1997 (NSW).

The proceedings are listed before the list judge to obtain a date for a hearing in relation to sentence and directions in relation to preparation for the sentence hearing.

In proceeding 2020/327090, the Court makes the following orders:

Robert Lenard Pullinger is guilty of the offence against s 91(5) of the Protection of the Environment Operations Act 1997 (NSW) of, without reasonable excuse, not complying with direction 10 of the varied clean-up notice given on 18 May 2018 pursuant to s 110 of the Protection of the Environment Operations Act 1997 (NSW).

The proceedings are listed before the list judge to obtain a date for a hearing in relation to sentence and directions in relation to preparation for the sentence hearing.

In proceeding 2020/327091, the Court makes the following orders:

Robert Lenard Pullinger is guilty of the offence against s 102 of the Protection of the Environment Operations Act 1997 (NSW), of not complying with the prohibition notice given on 25 August 2020 pursuant to s 101 of the Protection of the Environment Operations Act 1997 (NSW).

The proceedings are listed before the list judge to obtain a date for a hearing in relation to sentence and directions in relation to preparation for the sentence hearing.

**********

Endnotes

Decision last updated: 22 May 2024

Medium Neutral Citation:	Environment Protection Authority v Pullinger (No 2) [2024] NSWLEC 51
Hearing dates:	21 to 25 August 2023
Date of orders:	22 May 2024
Decision date:	22 May 2024
Jurisdiction:	Class 5
Before:	Pritchard J
Decision:	In proceeding 2020/327089, the Court makes the following orders: (1) Robert Lenard Pullinger is guilty of the offence against s 91(5) of the Protection of the Environment Operations Act 1997 (NSW) of, without reasonable excuse, not complying with direction 7 of the varied clean-up notice given on 18 May 2018 pursuant to s 110 of the Protection of the Environment Operations Act 1997 (NSW). (2) The proceedings are listed before the list judge to obtain a date for a hearing in relation to sentence and directions in relation to preparation for the sentence hearing. In proceeding 2020/327090, the Court makes the following orders: (1) Robert Lenard Pullinger is guilty of the offence against s 91(5) of the Protection of the Environment Operations Act 1997 (NSW) of, without reasonable excuse, not complying with direction 10 of the varied clean-up notice given on 18 May 2018 pursuant to s 110 of the Protection of the Environment Operations Act 1997 (NSW). (2) The proceedings are listed before the list judge to obtain a date for a hearing in relation to sentence and directions in relation to preparation for the sentence hearing. In proceeding 2020/327091, the Court makes the following orders: (1) Robert Lenard Pullinger is guilty of the offence against s 102 of the Protection of the Environment Operations Act 1997 (NSW), of not complying with the prohibition notice given on 25 August 2020 pursuant to s 101 of the Protection of the Environment Operations Act 1997 (NSW). (2) The proceedings are listed before the list judge to obtain a date for a hearing in relation to sentence and directions in relation to preparation for the sentence hearing.
Catchwords:	ENVIRONMENT AND PLANNING — offences — prosecutions — defendant charged under s 91(5) of the Protection of the Environment Operations Act 1997 (NSW) — validity of direction 7 of the varied clean-up notice — whether there was a connection between direction 7 and the pollution incident the subject of the varied clean-up notice — whether the prosecutor held reasonable suspicion of pollution incident — whether the prosecutor was the appropriate regulatory authority — construction of ss 212C and 212D of the Protection of the Environment Operations Act 1997 (NSW) — failure to comply with direction 7 of clean-up notice — defence of reasonable excuse ENVIRONMENT AND PLANNING — offences — prosecutions — defendant charged under s 91(5) of the Protection of the Environment Operations Act 1997 (NSW) — failure to comply with direction 10 of varied clean-up notice — defence of reasonable excuse ENVIRONMENT AND PLANNING — offences — prosecutions — defendant charged under s 102 of the Protection of the Environment Operations Act 1997 (NSW) — whether the giving of the prohibition notice was warranted under s 101(1)(a) of the Protection of the Environment Operations Act 1997 (NSW) — construction of ss 101 and 102 of the Protection of the Environment Operations Act 1997 (NSW) —failure to comply with prohibition notice —definition of cease — definition of keeping — definition of storing — defence of reasonable excuse
Legislation Cited:	Bankruptcy Act 1966 (Cth) s 58 Corporations Act 2001 (Cth) s 601AD Evidence Act 1995 (NSW) ss 141, 191, 192 Protection of the Environment Operations Act 1997 (NSW) (as in force on 16 November 2020) ss 3, 6, 91, 92, 96, 101, 102, 104, 110, 212C, 212D, 217, 256, Sch 1, Dictionary Maitland Local Environmental Plan 2011 (NSW)
Cases Cited:	Beckwith v The Queen (1976) 135 CLR 569; [1976] HCA 55 Boddington v British Transport Police [1999] 2 AC 143; [1998] 2 All ER 203; [1998] 2 WLR 639 Burwood Council v Pan Pac Investments Pty Ltd [2018] NSWLEC 110 Council of the City of Sydney v Blue Chips Franchise Pty Ltd (Local Court (NSW), 9 August 2016, unrep) Council of the City of Sydney v Blue Chips Franchise Pty Ltd [2017] NSWLEC 24 Environment Protection Authority v Lithgow City Council [2007] NSWLEC 695 Environment Protection Authority v O’Brien [2023] NSWLEC 118 Environment Protection Authority v Pullinger (2021) 252 LGERA 102; [2021] NSWLEC 144 Environment Protection Authority v Ramsey Food Processing Pty Ltd [2009] NSWLEC 152 Environment Protection Authority v Sydney Drum Machinery Pty Ltd (No 4) [2016] NSWLEC 59 Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204 George v Rockett (1990) 170 CLR 104; [1990] HCA 26 Gray v Woollahra Municipal Council [2004] NSWSC 112 Kempsey Shire Council v Slade (2015) 214 LGERA 214; [2015] NSWLEC 135 Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Liverpool City Council v Cauchi (2005) 145 LGERA 1; [2005] NSWLEC 675 Maund v Shoalhaven City Council [2019] NSWLEC 89 Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No 3) (1980) 47 FLR 163; [1980] FCA 94 Precision Products (NSW) Pty Limited v Hawkesbury City Council (2008) 74 NSWLR 102; [2008] NSWCA 278 R v Filiopovic; Gelevski (2008) 181 A Crim R 83; [2008] VSCA 14 R v Rondo (2001) 126 A Crim R 562; [2001] NSWCCA 540 Ryding v Kempsey Shire Council [2008] NSWLEC 306 Selby v Pennings (1998) 102 LGERA 253; (1998) 19 WAR 520 Sutherland Shire Council v Benedict Industries Pty Ltd (No 4) [2015] NSWLEC 101 Sutton v R (1984) 152 CLR 528; [1984] HCA 5 Taikato v The Queen (1996) 186 CLR 454; [1996] HCA 28 Udy v Hornsby Shire Council [2007] NSWLEC 242
Texts Cited:	Macquarie Dictionary, 9th ed (2023)
Category:	Principal judgment
Parties:	Environment Protection Authority (Prosecutor) Robert Lenard Pullinger (Defendant)
Representation:	Counsel: F Berglund (Prosecutor) L Sims (Defendant) Solicitors: Legal Services Branch, Environment Protection Authority (Prosecutor) Carmody Lawyers (Defendant)
File Number(s):	2020/327089 2020/327090 2020/327091
Publication restriction:	Nil