Environment Protection Authority v S J Perry - [2004] NSWLEC 715

Reported Decision: 135LGERA 431

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v S J Perry [2004] NSWLEC 715

PARTIES:
PROSECUTOR:
Enviornment Protection Authority
DEFENDANT:
S J Perry

FILE NUMBER(S): 50038 of 2004

CORAM: Bignold J

KEY ISSUES: Environmental Offences :- 3000 tonnes of used tyres abandoned by Corporation-Liability of Director of Corporation for offence committed by Corporation-Appropriate penalty-Clean-up-Order too financially burdensome to Defendant with limited financial means-penalty also to reflect Defendant's limited financial capacity.

LEGISLATION CITED: Protection of the Environment Operations Act 1997, ss 115, 169

CASES CITED: Millner v Raith (1942) 66 CLR 1;
Rahme (1989) 43 Aust Crim R 81

DATES OF HEARING: 15/12/2004

DATE OF JUDGMENT: 12/17/2004

LEGAL REPRESENTATIVES:

PROSECUTOR:
Mr J Rushton SC
SOLICITORS
Department of Environment and Conservation
DEFENDANT:
Mr J Maston, Barrister with Mr M Seymour, Barrister
SOLICITORS
Baldock Stacey and Niven

JUDGMENT:

- -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BIGNOLD J

17 December 2004

50038 of 2004 ENVIRONMENT PROTECTION AUTHORITY v STANLEY JAMES PERRY

HIS HONOUR:

1 The Defendant has pleaded guilty to a charge that “as a director of K P Recycling Pty Ltd (ACN 094 910 817) between 1 May 2001 and 31 July 2001 inclusive, he committed an offence against the Protection of the Environment Operations Act 1997, s 115(1) by reason of s 169(1) of that Act, in that K P Recycling Pty Ltd did negligently dispose of waste in a manner that harmed or was likely to harm the environment”.

2 The particulars endorsed upon the Summons were as follows:

(ACN 094 910 817)

at a property known as Lot 9, DP 7775454, Arthursleigh Lane, Gilgandra, New South Wales (the “premises”).

Approximately 3000 tonnes of used tyres.

The corporation negligently abandoned the waste it had previously stored at the premises.

(i) of the amount of the waste involved; and/or

(ii) the waste was stored too close to the boundary of the premises; and/or

(iii) the waste was not separated into stockpiles.

(ii) land pollution, namely, the degradation of land because of the disposal of the waste on the land;

(iii) disposal of the waste in such a manner as to pose a risk of fire and air pollution

(iv) disposal of the waste in such a manner as to increase the likelihood of air pollution in the event of a fire;

(v) disposal of the waste in such a manner as to increase the amount of air pollution in the event of a fire;

(vi) disposal of the waste in such a manner as to…

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.

Keep reading for free

Create a free CaseChat account to read Environment Protection Authority v S J Perry and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] NSWLEC 715
Decision Date: 12/17/2004

CaseChat Overview and Summary

Environment Protection Authority v S J Perry involved a director of a corporation being charged with an environmental offence under the Protection of the Environment Operations Act 1997. The defendant, S J Perry, pleaded guilty to a charge of negligently disposing of approximately 3000 tonnes of used tyres, causing harm to the environment. The court was required to determine an appropriate penalty, considering the defendant's limited financial means and his subjective culpability in the commission of the offence. The key issues included the appropriate penalty, the financial burden of a clean-up order, and the defendant's personal circumstances.

The court found that while the defendant was responsible for the corporation's actions due to his position as a director, his culpability was influenced by the corporation's failure and his lack of prior experience in the used tyre recycling business. The court considered the defendant's personal circumstances, including his age, health, and financial situation, which included limited assets and significant debt. The court also noted mitigating factors such as the defendant's early guilty plea, his regret for the offence, and the unlikelihood of future offences.

The court concluded that imposing a significant penalty and a clean-up order would be financially oppressive for the defendant. Instead, the court imposed a penalty of $30,000, considering the defendant's limited financial capacity and the seriousness of the offence. The court also ordered the defendant to pay the prosecutor's reasonable legal costs. The final orders included the conviction of the defendant, the imposition of the penalty, the payment of costs, and the return of exhibits.

Orders