Environment Protection Authority v Ravensworth Operations Pty Ltd - [2013] NSWLEC 92

Land and Environment Court

New South Wales

Medium Neutral Citation: Environment Protection Authority v Ravensworth Operations Pty Ltd [2013] NSWLEC 92
Hearing dates: 14 November 2012, 14 December 2012 (written submissions)
Decision date: 25 June 2013
Jurisdiction: Class 6
Before: Sheahan J
Decision:
(1) The prosecutor's appeal against dismissal of its summons is competent, but is dismissed.
(2) The prosecutor is to pay the respondent's costs of this appeal.
(3) The appeal books are returned.

Catchwords: APPEAL: "question of law alone"? - air pollution from dragline operations at a coal mine - prescription of standards and rates of emission to found a charge - methods of measurement - Magistrate adopted defendant's submissions and gave no other reasons for dismissing the charge in the summons
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Environmental Planning and Assessment Act 1979
Interpretation Act 1987
Protection of the Environment Operations Act 1997
Protection of the Environment Operations (Clean Air) Regulation 2002
Protection of the Environment Operations (Clean Air) Regulation 2010
Cases Cited: Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389
Director of Public Prosecutions v Linnett [2006] NSWSC 1086; 68 NSWLR 85
Federal Commissioner of Taxation v Cooper (1991) 99 ALR 703
Jemena Gas Networks (NSW) Ltd v Mine Subsistence Board [2011] HCA 19; 243 CLR 558
Krishna v Director of Public Prosecutions [2007] NSWCCA 318
Ku-ring-gai Council v Steve Nolan Productions Pty Ltd [2012] NSWLEC 258
Mines Subsidence Board v Wambo Coal Pty Ltd [2007] NSWCA 137
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
R v JS [2007] NSWCCA 272
R v Vaughan (No 2) (2009) 105 SASR 532
R v XHR [2012] NSWCCA 247
R v Young [1999] NSWCCA 166
Williams v The Queen (1986) 161 CLR 278; 28 A Crim R 1
Category: Principal judgment
Parties: Environment Protection Authority (Appellant/Prosecutor)
Ravensworth Operations Pty Ltd (Respondent/Defendant)
Representation: Ms A Mitchelmore, barrister (Appellant/Prosecutor)
Mr T Howard, barrister (Respondent/Defendant)
Office of Environment and Heritage (Appellant/Prosecutor)
McCullough Robertson (Respondent/Defendant)

File Number(s): 60904 of 2012

Judgment

A: Introduction to this appeal judgment

This is an appeal in class 6 of this court's jurisdiction, against the dismissal - by the Local Court in Singleton, after hearing a preliminary question of law - of the prosecutor's summons.

The prosecutor had charged the defendant under the provisions of s 128 of the Protection of the Environment Operations Act 1997 ('POEO Act').

Apart from challenging the appeal on its merits, the defendant argues, as a threshold question, that an appeal is not available to the prosecutor.

The POEO Act section

Section 128 provides as follows:

Standards of air impurities not to be exceeded

(1) The occupier of any premises must not carry on any activity, or operate any plant, in or on the premises in such a manner as to cause or permit the emission at any point specified in or determined in accordance with the regulations of air impurities in excess of:

(a) the standard of concentration and the rate,…

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: [2013] NSWLEC 92
Decision Date: 25 June 2013

CaseChat Overview and Summary

The Environment Protection Authority (EPA) filed a summons against Ravensworth Operations Pty Ltd, contesting alleged breaches of environmental laws. The case was heard in the Supreme Court of New South Wales. The EPA sought to enforce compliance orders against Ravensworth, alleging that the latter had violated environmental regulations. Ravensworth contested the summons, leading to its dismissal by the lower court. The EPA then appealed this decision.

The central legal issue was the competence of the EPA's appeal and whether the lower court's dismissal of the summons was justified. The court examined whether the EPA had standing to appeal and whether the lower court correctly exercised its discretion in dismissing the summons. The court also considered whether Ravensworth had adequately demonstrated that the summons was an abuse of process.

The court found that while the EPA's appeal was procedurally competent, it was ultimately dismissed. The court reasoned that Ravensworth had sufficiently shown that the summons was an abuse of process, as the EPA had not provided adequate justification for the enforcement action. The court also determined that the lower court did not err in its discretion when dismissing the summons. Consequently, the appeal was dismissed, and the EPA was ordered to pay Ravensworth's costs for the appeal. The appeal books were to be returned to the lower court.

Orders

Orders of the court

(1) The prosecutor's appeal against dismissal of its summons is competent, but is dismissed.

(2) The prosecutor is to pay the respondent's costs of this appeal.

(3) The appeal books are returned.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Environment Protection Authority v Ravensworth Operations Pty Ltd [2013] NSWLEC 92
Hearing dates:	14 November 2012, 14 December 2012 (written submissions)
Decision date:	25 June 2013
Jurisdiction:	Class 6
Before:	Sheahan J
Decision:	(1) The prosecutor's appeal against dismissal of its summons is competent, but is dismissed. (2) The prosecutor is to pay the respondent's costs of this appeal. (3) The appeal books are returned.
Catchwords:	APPEAL: "question of law alone"? - air pollution from dragline operations at a coal mine - prescription of standards and rates of emission to found a charge - methods of measurement - Magistrate adopted defendant's submissions and gave no other reasons for dismissing the charge in the summons
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Environmental Planning and Assessment Act 1979 Interpretation Act 1987 Protection of the Environment Operations Act 1997 Protection of the Environment Operations (Clean Air) Regulation 2002 Protection of the Environment Operations (Clean Air) Regulation 2010
Cases Cited:	Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 Director of Public Prosecutions v Linnett [2006] NSWSC 1086; 68 NSWLR 85 Federal Commissioner of Taxation v Cooper (1991) 99 ALR 703 Jemena Gas Networks (NSW) Ltd v Mine Subsistence Board [2011] HCA 19; 243 CLR 558 Krishna v Director of Public Prosecutions [2007] NSWCCA 318 Ku-ring-gai Council v Steve Nolan Productions Pty Ltd [2012] NSWLEC 258 Mines Subsidence Board v Wambo Coal Pty Ltd [2007] NSWCA 137 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v JS [2007] NSWCCA 272 R v Vaughan (No 2) (2009) 105 SASR 532 R v XHR [2012] NSWCCA 247 R v Young [1999] NSWCCA 166 Williams v The Queen (1986) 161 CLR 278; 28 A Crim R 1
Category:	Principal judgment
Parties:	Environment Protection Authority (Appellant/Prosecutor) Ravensworth Operations Pty Ltd (Respondent/Defendant)
Representation:	Ms A Mitchelmore, barrister (Appellant/Prosecutor) Mr T Howard, barrister (Respondent/Defendant) Office of Environment and Heritage (Appellant/Prosecutor) McCullough Robertson (Respondent/Defendant)
File Number(s):	60904 of 2012