Environment Protection Authority v Simplot Australia Pty Ltd - [2001] NSWLEC 264

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Simplot Australia Pty Ltd [2001] NSWLEC 264

PARTIES:
PROSECUTOR
Environment Protection Authority
DEFENDANT
Simplot Australia Pty Ltd

FILE NUMBER(S): 50056 of 2001

CORAM: Pearlman J

KEY ISSUES: Environmental Offences :- water pollution - plea of guilty - penalty - joint submission that no monetary penalty be imposed - defendant ordered to carry out specified environmental projects

LEGISLATION CITED: Protection of the Environment Operations Act 1997 s 120(1), s 123, s 241, s 250(1)(c)

CASES CITED:

DATES OF HEARING: 25/10/2001

EX TEMPORE
JUDGMENT DATE :
10/25/2001

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr G J Plath (Solicitor)
SOLICITORS
Environment Protection Authority
DEFENDANT
Mr C H Shaw (Solicitor)
SOLICITORS
Andersen Legal

JUDGMENT:

IN THE LAND AND 50056 of 2001
ENVIRONMENT COURT

Pearlman J

OF NEW SOUTH WALES 25 October 2001

ENVIRONMENT PROTCTION AUTHORITY

Prosecutor

SIMPLOT AUSTRALIA PTY LTD

Defendant

JUDGMENT

1. This case is a prosecution by the Environment Protection Authority against the defendant Simplot Australia Pty Limited. The defendant is charged with an offence against s 120(1) of the Protection of the Environment Operations Act 1997 (“the POEO Act”), in that on 7 April 2000 it polluted waters.

2. In the summons the pollutant is particularised as matter that causes biochemical oxygen demand, and/or oil and/or fat, and/or vegetable matter, and/or batter. The waters are particularised as an open stormwater drain leading to Raglan Creek.

3. The defendant has entered a plea of guilty to the charge, and the only task of the Court in those circumstances is to consider the appropriate penalty and costs.

4. The parties have filed an agreed statement of facts from which the following salient facts are derived.

5. The defendant operates food processing facilities at Bradford Street, Kelso. In the course of the operation of its business, food waste is discharged and there is a system of treating the food waste. Under a trade waste agreement with the local council, treated effluent is discharged to the sewer.

6. In the incident that occurred on 7 April 2000, food waste was being discharged into a pipe across the factory roof. Because of some cuts that had been made in that pipe, the food waste discharged into a gutter, and it then discharged to an underground stormwater pipe, from which it was carried by water (which had emitted from the spiral freezers in the factory) to an open stormwater drain.

7. The pipe had been cut in three places by employees of the defendant in an effort to remove a blockage that they had discovered and about which they had some concern. Before they made the three cuts, they bunded some of the guttering around the pipe, but they left one gutter unbunded, and it was into that gutter that the waste material drained. The operator who failed to bund the gutter at this point did so because he was under the mistaken belief that the gutter had previously been connected to the food waste system…

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: [2001] NSWLEC 264
Decision Date: 10/25/2001

CaseChat Overview and Summary

The Land and Environment Court of New South Wales presided over a case involving the Environment Protection Authority (EPA) prosecuting Simplot Australia Pty Ltd for water pollution under section 120(1) of the Protection of the Environment Operations Act 1997. The defendant admitted guilt, and the court was tasked with determining the appropriate penalty and costs. The incident involved food waste discharging into an open stormwater drain leading to Raglan Creek, causing potential environmental harm due to high levels of biochemical oxygen demand, total kjeldahl nitrogen, and total phosphorus. However, there was no evidence of actual harm as there was no aquatic life present in the drain.

The court considered several factors in determining the penalty, including the extent of the harm, the defendant’s measures to prevent and mitigate the harm, and the foreseeability of the incident. The defendant had invested significantly in reviewing and commissioning a new trade waste system, had a comprehensive education and training system in place, took prompt action to clean up the discharge, and cooperated with the EPA. The defendant also expressed contrition and agreed to pay the prosecutor's costs.

Given these mitigating factors and the joint submission by the parties for environmental projects instead of a monetary penalty, the court decided to impose orders under section 250(1)(c) of the POEO Act. These orders included undertaking specified environmental projects such as stabilising river banks, removing invasive trees and plants, and planting native species, as well as assessing ways to reduce greenhouse gas emissions. The court made these orders to enhance environmental protection and restoration, and mandated reporting to the EPA to ensure compliance.

Orders