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)…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Environment Protection Authority v Pullinger (No 2) [2024] NSWLEC 51
Case
[2024] NSWLEC 51
Decision Date
CaseChat Overview and Summary
The matter before the Local Court of New South Wales was a prosecution brought by the Environment Protection Authority against Robert Lenard Pullinger. The dispute arose out of allegations that Pullinger had failed to comply with certain environmental clean-up notices issued under the Protection of the Environment Operations Act 1997 (NSW). Specifically, the charges against Pullinger included failure to comply with directions in a clean-up notice and failure to comply with a prohibition notice.
The court was tasked with determining whether Pullinger had indeed failed to comply with the directions and prohibition in the notices, and if so, whether he had a reasonable excuse for not doing so. The primary legal issue was whether the Prosecution had proven beyond reasonable doubt that Pullinger had failed to comply with the environmental notices and whether any excuse he had was reasonable.
The Court found that the Prosecution had proven each of the charges against Pullinger beyond reasonable doubt. The evidence demonstrated that Pullinger had failed to comply with the specific directions in the clean-up notice and the prohibition notice. Moreover, the Court determined that Pullinger did not provide a reasonable excuse for his non-compliance. As a result, Pullinger was found guilty on all counts. The Court ordered that the proceedings be listed before the list judge to set a date for a hearing concerning the sentence and to provide directions for the preparation of the sentence hearing.
Orders
Orders of the court
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.