Environment Protection Authority v Rixa Quarries (No.2) Pty Ltd

[2017] NSWLEC 48

Land and Environment Court

New South Wales

Medium Neutral Citation:	Environment Protection Authority v Rixa Quarries (No.2) Pty Ltd [2017] NSWLEC 48
Hearing dates:	1 May 2017
Date of orders:	01 May 2017
Decision date:	01 May 2017
Jurisdiction:	Class 5
Before:	Pain J
Decision:	See par 34
Catchwords:	PROSECUTION – offence of carrying out a scheduled activity without an environment protection licence – processing of sand for sale in excess of 30,000 tonnes per year – ex parte hearing on assumption of plea of not guilty by absent defendant – all elements of offence proven by prosecutor
Legislation Cited:	Criminal Procedure Act 1986 s 250 Protection of the Environment Operations Act 1997 ss 48, 258, Sch 1, Dictionary
Category:	Principal judgment
Parties:	Environment Protection Authority (Prosecutor) Rixa Quarries (No.2) Pty Ltd (Defendant)
Representation:	COUNSEL: J Smith (Prosecutor) No appearance (Defendant)   SOLICITORS: Office of Environment and Heritage (Applicant) No appearance (Defendant)
File Number(s):	16/297634

EX TEMPORE Judgment

1. Rixa Quarries (No. 2) Pty Ltd (Defendant) is charged with having committed an offence against s 48(2) of the Protection of the Environment Operations Act 1997 (POEO Act). It is alleged that from about 25 March 2013 until 10 October 2013, the Defendant was the occupier of premises at which a scheduled activity was carried out when it did not hold an environment protection licence (EPL) that authorised that activity to be carried on at the premises.

2. The Defendant has not appeared or been represented in court at any stage of these proceedings. The hearing was therefore conducted on the basis that the Defendant pleaded not guilty and the Prosecutor bore the onus of proving each element of the offence beyond reasonable doubt. I made an order under s 250(a) of the Criminal Procedure Act 1986 at the outset of the hearing that the matter ought proceed in the absence of the Defendant, being satisfied of adequate service of the initiating process and evidence and that more than adequate attempts to draw the Defendant's directors' attention to the hearing date today had been made.

3. The premises in question are located at Doonbah Quarry, being Lot 2 DP 1040274, 499 Woodburn Evans Head Road, Doonbah, New South Wales (the Premises). The scheduled activity alleged to have been carried on is land-based extractive activity involving the processing of more than 30,000 tonnes per annum of extractive materials (sand), either for sale or re-use, by means of screening and drying.

Summons

4. The summons filed by the Prosecutor the Environment Protection Authority (EPA) on 6 October 2016 contained the following particulars:

Particulars

(a) Premises:

Doonbah Quarry, being Lot 2 DP 1040274, located at 499 Woodburn Evans Head Road, Doonbah, New South Wales.

(b) Scheduled activity:

Land-based extractive activity involving the processing of more than 30,000 tonnes per year of extractive materials.

(c) Manner of breach:

The Defendant carried out the processing of more than 30,000 tonnes of extractive materials, either for sale or re-use, by means of screening and drying.

Elements of the charge

5. Section 48 of the POEO Act provides:

(1)   Application of section

This section applies to scheduled activities where Schedule 1 indicates that a licence is required for premises at which the activity is carried on.

(2)   Offence

A person who is the occupier of any premises at which any such scheduled activity is carried on is guilty of an offence, unless the person is, at the time that activity is carried on, the holder of a licence that authorises that activity to be carried on at those premises.

Maximum penalty:

(a)   in the case of a corporation—$1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or

(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.

6. The relevant scheduled activity particularised in the Summons is:

Schedule 1 Scheduled activities

...

19   Extractive activities

(1)   This clause applies to the following activities:

land-based extractive activity, meaning the extraction, processing or storage of extractive materials, either for sale or re-use, by means of excavation, blasting, tunnelling, quarrying or other such land-based methods.

water-based extractive activity, meaning the extraction of extractive materials, either for sale or re-use, by means of dredging or other such water-based methods.

(2)   In this clause, extractive materials means clay, sand, soil, stone, gravel, rock, sandstone or similar substances that are not minerals within the meaning of the Mining Act 1992.

(3)   Each activity referred to in Column 1 of the Table to this clause is declared to be a scheduled activity if it meets the criteria set out in Column 2 of that Table.

Table

Column 1	Column 2
Activity	Criteria
land-based extractive activity	involves the extraction, processing or storage of more than 30,000 tonnes per year of extractive materials
water-based extractive activity	involves the extraction of more than 30,000 cubic metres per year of extractive materials

7. The elements which constituted the offence are that during the period of the charge in 2013:

1. the Defendant was the occupier of the Premises;

2. land based extractive activities were carried on at the Premises from about 25 March 2013 until 10 October 2013 comprising:

1. processing of extractive materials;

2. either for sale or re-use;

3. by means of land-based methods;

4. involving processing of more than 30,000 tonnes per year; and

3. the Defendant was not the holder of an EPL for that activity to be carried on at those Premises at the relevant time.

Evidence

8. The Prosecutor relies upon the following affidavit evidence:

• Affidavit of Anthony Scott Weir affirmed 13 August 2014 (Dredge Operator – Employee of Dredging Solutions a subcontractor of the Defendant)

• Affidavit of Geff Cramb affirmed 26 September 2016 (Regional Operations Officer – EPA)

• Affidavit of Peter Lynch affirmed 21 April 2017 (Operations Officer – EPA)

First Element – Occupier of the Premises

9. The first element of the offence the Prosecutor must establish is whether the Defendant was the occupier of the premises during the charge period. The “occupier” of a premises is defined in the Dictionary of the POEO Act to mean:

the person with management or control of the premises

10. “Premises” is also defined in the Dictionary of the POEO Act to include:

(a)   a building or structure, or

(b)   land or a place (whether enclosed or built on or not), or

(c)   a mobile plant, vehicle, vessel or aircraft”.

11. The Defendant was granted a profit-a-prendre with a five year term (signed 18 March 2013 by Directors Joseph and Louise Cauchi) in relation to the Premises by the owners of that land, Mr and Mrs Uebergang. (Exhibit B Tab 2 and Tab 3, ASIC Search).

12. Under the terms of the grant, the Defendant had the right to enter and extract and haul stone, rock, sand, gravel or other like material from the Premises and to have exclusive possession of the Premises to do so.

13. Management and control of the Premises by the Defendant is also proved by the following evidence:

• A record of interview with Mr Richard Jamroz (quarry supervisor, employee of the Defendant) conducted on 28 July 2014 (Exhibit C Tab 95) which included:

Q10-19: Work for Rixa Number 2, from June/July 2013 as Quarry supervisor

Q22: And when you say Joe, who’s Joe? A: Joe Couchie (?), he’s my boss.

Q23: You said Joe would tell you what to do before your shift I gather? A: Yeah.

Q25: What was he role here, Joe? A: He was the boss.

Q32: Who employed other staff that worked here on those machines? A: That would’ve been Joe.

• A record of interview with Mr James Luland (truck driver employee of the Defendant) conducted on 29 July 2014 (Exhibit C Tab 94) which included:

Q15-17: A plant operator at Doonbah Quarry from May 2013.

A113: day to day instructions given by Richard .

A120: Richard gave instructions to “everyone onsite, he was the boss, that was all there was to it, no – no if, buts or maybes. There was one person on that job that was in charge unless Luke was in charge overruling him or Joe was in charge overruling both of them, Rick was the man”.

14. The Prosecutor also relies upon s 258(1) of the POEO Act:

258 Evidence relating to occupier of premises

(1)   In any proceedings under this Act, no proof is required (until evidence is given to the contrary) of the fact that a person is, or at any relevant time was, the occupier of any premises to which the proceedings relate.

15. As no evidence has been adduced by the Defendant disputing that it was the occupier of the premises during the charge period reliance on s 258 is sufficient to prove the offence. The evidence otherwise relied on by the Prosecutor also proves beyond reasonable doubt that the Defendant was the occupier during the charge period.

Second Element – Extractive activities

(a) processing of extractive materials;

16. The processing of extractive materials (sand) during from about 25 March 2013 until 10 October 2013 is evidenced by the affidavit of Anthony Weir dated 13 August 2014 which identified in the following paragraphs:

• [15] Mr Weir operated the Dredge at Doonbah Quarry from 27 May 2013 to October 2013.

• [21]-[25] Described the daily sand processing operations at the Premises.

• [28] The clean stockpiled sand was loaded onto trucks and left the premises.

17. The affidavit of Peter Lynch dated 21 April 2017 exhibits video footage from the site inspection by operations officers of the Prosecutor on 10 October 2013, marked DQ 4-7, which was viewed by the Court. This showed the dredging, extraction and conveying of sand to piles on land. The contents of the videos were summarised in paragraphs [9], [10], [11] and [12] of the affidavit. The place where the videos were taken from was identified on a map in Exhibit B Tab 34 (at [41] of Mr Cramb’s affidavit).

18. The affidavit of Geff Cramb dated 22 September 2016 at [46](a)-(e) described processing activities observed at the Premises on 10 October 2013.

19. The record of interview with Mr Richard Jamroz dated 28 July 2014 (Exhibit C Tab 95):

Q29: And what was the work that was being undertaken here at the quarry? A: We had long reach excavators pulling sand out, setting it up, it was drying for a day or 2 and then we’d screen it and put it in the trucks.

Q62: In regard to sand extraction here, can you just explain the step by step process, what would take place while you’ve been working here? A: You’d – you’d have a digger, pull it out, sit it on the bank and usually a day or 2 for it to dry so he’d move onto the next pile and start digging out another pile, so you might end up with 3 piles and then you’d back a screener up to one of them, the digger would put it in the screener, it’d come out the other end and that was your – your finished product.

20. The record of interview with Mr James Luland truck driver (Exhibit C Tab 94) stated:

A53: Well as I said, okay, the dredge – dredged the material up into a pond on up near where I’m sitting in that vicinity, I’d take the material out of that pond and send it across to stockpile and – to dry and then I’d feed it, which this machine’s doing at the moment. I didn’t always have held and I’d – then I’d be up here feeding it into the screen.

Q86: Why do you think they stopped using the long stick excavator? A: Because the dredge arrived. They were waiting on the dredge to arrive and they wanted to start making material so I assume – I assume they used the long sticks to start – to get the ball rolling so they were actually producing and then when the dredge arrived which is a much faster situation and he’s on a contract to pump X amount of sand, I don’t know how much or whatever, but he’s there to do his job, they don’t need to have two long sticks pulling sand out if they’ve got a dredger.

Q87: Because it does it a lot quicker you were saying? A: Oh yeah.

Q88: And how about the quality of the material that the long stick brought up as opposed to the dredge? A: Same.

Q89: It’s the same? A: You’re still pulling up clean sand, it still has to be dried, still has to be screened. Well that’s my interpretation of it.

(b) either for sale or re-use;

21. The process undertaken at the premises involved the drying and screening of the land for sale. Sale of the sand processed between about 25 March 2013 until 10 October 2013 is evidenced by the following materials.

• The affidavit of Geff Cramb dated 22 September 2016.

• Exhibit C Tabs 99-100 – supply of material for Sapphire to Woolgoolga highway upgrade.

• The record of interview with Mr Richard Jamroz at Q 71-Q78 identified that sand was loaded onto trucks and used for the “Sapphire” highway.

22. The EPA also issued a number of s 191 (POEO Act) notices to the Defendant (Mr Cramb affidavit at [132] and Exhibit C Tab 86). The s 191 notice response of the Defendant’s director dated 17 November 2015 identified that from 1 March 2013 to 31 May 2014 approximately 54 tonnes of processed sand extractive materials was removed from the Premises. A spreadsheet attached to the notice showed that almost all of this material was extracted during the charge period with the total extracted as of September 2013 being approximately 53 tonnes. The Defendant’s director also provided contact details for four customers of the Defendant who were also contacted by the Prosecutor.

(c) by means of land-based methods

23. The evidence set out in pars 16-19 above proves that the processing of the sand was taking place by a land-based method.

(d) involving processing of more than 30,000 tonnes per year

24. The evidence of Anthony Weir (affidavit at [28]) Richard Jamroz (Exhibit C Tab 95, Q29) and James Luland (Exhibit C Tab 94, Q53) proves that all of the sand that was being loading into trucks was first dried and screened.

25. The primary record of the weight of each load of material put onto a truck at the Premises was a loader docket according to Mr Jamroz (Exhibit C Tab 95, Q66-69). The docket information was collated progressively each day onto a daily run sheet.

26. During the charge period the Defendant's main supply of sand was to the Leighton Fulton Hogan Joint Venture (LFHJV) in relation to the upgrade of the Pacific Highway between Sapphire and Woolgoolga, NSW (Upgrade) (Exhibit C Tab 95, Q73).

27. On 28 August 2014 the EPA issued a s 191 notice to the LFHJV and a response was received on 12 and 19 September 2014 (Mr Cramb affidavit at [151]-[152] and Exhibit C Tabs 99-100). LFHJV advised that the total quantity, in tonnes, of sand obtained from the Premises and supplied for the purposes of the Upgrade between March 2013 and August 2013 was 36,529.14, and the quantity, in tonnes, of extractive material received from the Defendant for the month of September 2013 was 7,598.70, a total of 44,127.84 tonnes as follows:

DATE	AMOUNT	SOURCE
Mar-13	688.25	Exhibit C Tab 99
Apr-13	9,229.12	“
May-13	6,660.50	“
Jun-13	11,140.05	“
Jul-13	3,498.99	“
Aug-13	5,312.23	“
Sep-13	7,598.70	Exhibit C Tab 100
Total	44,127.84

28. The response of the Director of the Defendant to the s 191 notice referred to above attached a spreadsheet showing the number of tonnes delivered to various customers on various dates (Mr Cramb affidavit at [161] and Exhibit C Tab 86).

29. The Defendant’s s 191 notice response indicated that this spreadsheet was prepared using the daily run sheets. The total number of tonnes which the Defendant says was trucked off the Premises between 26 March 2013 and 27 September 2013 is 52,839.22 as follows:

DATE	AMOUNT	SOURCE
Mar-13	643.90	Exhibit D
Apr-13	10,990.77	“
May-13	8,085.25	“
Jun-13	12,893.25	“
Jul-13	3,960.79	“
Aug-13	5,646.13	“
Sep-13	10,619.13	“
Total	52,839.22

30. The Defendant's spreadsheet shows about 42,700 tonnes worth of sales to the LFHJV.

31. The Defendant's spreadsheet shows that about 8,109 tonnes were delivered to Serendipity or Corindi Quarry. According to the run sheets, the Defendant loaded its 30,000th tonne of sand on about 24 June 2013. The Defendant sold its 30,000th tonne to the LFHJV after about 5 July 2013.

32. This element of the offence has been established beyond reasonable doubt.

Third Element – Absence of EPL

33. In a certificate under s 261 of the POEO Act relied on by the Prosecutor (Exhibit E) a designated officer certified that during the charge period the premises occupied by the Defendant (Lot 2 DP1040274, located at 499 Woodburn Evans Head Road, Doonbah, NSW) were not the subject of an EPL under the POEO Act. This element of the offence has been established beyond reasonable doubt.

Conclusion

34. The Court is satisfied beyond reasonable doubt that the Defendant is guilty of the offence as set out in the Summons.

35. Arrangements for a sentencing hearing will now need to be made.

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Decision last updated: 04 May 2017