Environment Protection Authority v Shoalhaven Starches

Land and Environment Court

of New South Wales

CITATION:

Environment Protection Authority v Shoalhaven Starches Pty Ltd [2006] NSWLEC 685

PARTIES:

PROSECUTOR
Environment Protection Authority
DEFENDANT
Shoalhaven Starches Pty Ltd

FILE NUMBER(S):

50011 of 2005

CORAM:

Jagot J

KEY ISSUES:

Prosecution :- sentence - offence of emitting offensive odours - environmental audit order

LEGISLATION CITED:

Crimes (Sentencing Procedure) Act 1999 s 3A, s 21A
Protection of the Environment Operations Act 1997 s 129, s 132(a), s 241, s 244, s 250

CASES CITED:

Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357;
Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683;
EPA v Barnes [2006] NSWCCA 246;
Environment Protection Authority v Incitec Limited [2003] NSWLEC 381;
Environment Protection Authority v Shoalhaven Starches Pty Limited [2006] NSWLEC 496;
Environment Protection Authority v Shoalhaven Starches Pty Ltd [2003] NSWLEC 107;
Regina v Darrell Terry McNaughton [2006] NSWCCA 242;
Reg. v O’Neill [1979] 2 NSWLR 582;
Veen v The Queen [No 2] (1988) 164 CLR 465

DATES OF HEARING:

30/10/2006, 31/10/2006

 
DATE OF JUDGMENT: 

11/02/2006

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr S Rushton SC
SOLICITORS
Department of Environment & Conservation

DEFENDANT
Mr I Lloyd QC
SOLICITORS
Kirkby & Associates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

2 November 2006

50011 of 2005

ENVIRONMENT PROTECTION AUTHORITY
Applicant

SHOALHAVEN STARCHES PTY LTD
Respondent

JUDGMENT

Jagot J:
A. Introduction

1 In my principal reasons delivered on 6 September 2006, I found that Shoalhaven Starches, on 15 April 2004, was the occupier of premises at which scheduled activities were carried on under authority conferred by a licence and caused the emission of offensive odours from the premises to which the licence applied, contravening s 129(1) of the Protection of the Environment Operations Act 1997 (see Environment Protection Authority v Shoalhaven Starches Pty Limited [2006] NSWLEC 496). The issue of sentence for that offence remains.

2 The maximum penalty for the offence is $250,000 (s 132(a) of the POEO Act). My remarks on sentence follow.

B. The offence

3 My findings about the offence are set out in my principal reasons.

4 In particular, I was satisfied beyond reasonable doubt about the following matters:

(1) The defendant operated six ponds on premises known as the environmental farm, north of Bolong Road, Bomaderry.

(2) The ponds were used to store wastewater from the factory operations, which involved the processing of flour, the conversion of wastewater into ethanol and stockfeed insofar as practicable, and the pumping of excess wastewater to the environmental farm for irrigation. About 50% of the wastewater could be immediately irrigated in dry weather (after the pH had been raised by the addition of lime). The balance was stored in the ponds. The ponds were also used for storage of wastewater in wet weather, when the wastewater could not be irrigated.

(3) Because the wastewater contained biodegradable material it would become malodorous when subject to anaerobic biological action. Anaerobic biological action…