Environment Protection Authority v Queanbeyan City Council - [2010] NSWLEC 237

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Queanbeyan City Council [2010] NSWLEC 237

PARTIES:
PROSECUTOR
Environment Protection Authority
DEFENDANT
Queanbeyan City Council

FILE NUMBER(S): 50080 of 2008

CORAM: Pepper J

KEY ISSUES: CRIMINAL LAW :- whether a prosecution for water pollution caused by the unintentional discharge of sewage should be premanently stayed because of a refusal by the regulatory authority to issue an environment protection licence - whether the licence was required to be issued - whether had the licence been issued the defendant would have been afforded a statutory defence to a strict liability offence - whether if the proceedings continued they would be unfair - whether the public interest in permitting the prosecution to proceed outweighed any unfairness - permanent stay refused

LEGISLATION CITED: Evidence Act 1995 s 136
Protection of the Environment Operations Act 1997 ss 42, 43, 45, 48, 53, 63(2), 120(1), 122, 123, 287

CASES CITED: ADI Ltd v Environment Protection Authority [2000] NSWCCA 333; 118 A Crim R 335
Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Director-General, Department of Environment and Climate Change v Gleeson; Director-General, Department of Environment and Climate Change v Epacris Pty Ltd [2009] NSWLEC 42; (2009) 165 LGERA 99
Dupas v R [2010] HCA 20; (2010) 267 ALR 1
Grey v R [2001] HCA 65; (2001) 184 ALR 593
Jago v District Court (NSW) (1989) 168 CLR 23
Kirk v Industrial Court (NSW) [2010] HCA 1; (2009) 239 CLR 531
Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210
Mraz v R (1955) 93 CLR 493
R v Edwards [2009] HCA 20; (2009) 255 ALR 399
R v Glennon (1992) 173 CLR 592
R v Ulman-Naruniec [2003] SASC 437; (2003) 143 A Crim R 531
Walton v Gardiner (1993) 177 CLR 378
Wilde v R (1988) 164 CLR 365
Wilson v State Rail Authority of New South Wales [2010] NSWCA 198

DATES OF HEARING: 24-27 August 2009

DATE OF JUDGMENT:
21 December 2010

LEGAL REPRESENTATIVES:
PROSECUTOR
Mr J Glissan QC with Ms G Preston
SOLICITORS
Department of Environment and Climate Change
DEFENDANT
Mr R McIlwaine SC with Mr T To
SOLICITORS
Herring & Associates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PEPPER J

21 December 2010

50080 of 2008 Environment Protection Authority v Queanbeyan City Council

JUDGMENT

Introduction

1 HER HONOUR: Queanbeyan City Council (“the council”), has been charged with an offence of polluting waters in contravention of s 120(1) of the Protection of the Environment Operations Act 1997 (“the Act”). The council has pleaded not guilty.

2 By notice of motion filed 22 July 2009, the council seeks a permanent stay of the prosecution on the basis that the proceedings are an abuse of process because the conduct of…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2010] NSWLEC 237
Decision Date: 21 December 2010

CaseChat Overview and Summary

The matter before the Land and Environment Court of New South Wales was an application by the Queanbeyan City Council for a permanent stay of criminal proceedings brought against it by the Environment Protection Authority (EPA) for an offence of polluting waters in contravention of s 120(1) of the Protection of the Environment Operations Act 1997. The council pleaded not guilty. The council sought a permanent stay of the prosecution on the basis that the proceedings were an abuse of process because the conduct of the EPA, in not issuing an environment protection licence under the Act deprived the council of the opportunity to avail itself of the only statutory defence provided to the charge. Pepper J determined that a stay ought not to be granted and the notice of motion should be dismissed. The court found that no licence was required to be issued by the EPA in respect of the Morisset Street sewage pumping station. Even if a licence should have been issued, the unfairness about which the council complained did not exist because as both the evidence and the Act demonstrated, no conditions attaching to any licence issued would have permitted the second overflow incident the subject of the charge. In any event, in light of the council’s history of sewage overflows, with their attendant risk of harm to the environment and to human safety, the public interest in permitting the prosecution to proceed outweighed any unfairness created by the absence of the licence.

Orders