Environment Protection Authority v Slade, a H - [2004] NSWLEC 773

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Slade, A H [2004] NSWLEC 773

PARTIES:
PROSECUTOR:
Environment Protection Authority
DEFENDANT:
Slade, A H

FILE NUMBER(S): 50033 of 2004

CORAM: Bignold J

KEY ISSUES: Environmental Offences :- Land Pollution - Permitting land to be used as a waste facility - Guilty plea - Mitigating factors.

LEGISLATION CITED: Protection of the Environment Operations Act 1997, s 144(1)

CASES CITED:

DATES OF HEARING: 16/08/2004

EX TEMPORE
JUDGMENT DATE : 08/16/2004

LEGAL REPRESENTATIVES:

PROSECUTOR:
Mr D. Samuels (Solicitor)
SOLICITORS
Environment Protection Authority
DEFENDANT:
Ms S. Duggan (Barrister)
SOLICITORS
Whitelaw McDonald

JUDGMENT:

- 1 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BIGNOLD J

16 August 2004

50033 of 2004 ENVIRONMENT PROTECTION AUTHORITY v ANDREW HOWARD SLADE

HIS HONOUR:

1 The Defendant has pleaded guilty to a charge of an offence against the Protection of the Environment Operations Act, s144(1) in that he being the owner of land that could not lawfully be used as a waste facility permitted the land to be used as a waste facility between approximately 4 May 2001 and 25 May 2001. That land is situated at Tomago Road, also known as Cabbage Tree Road, Williamtown in the shire of Port Stephens.

2 The Summons filed in the proceeding gives the particulars of the land as I have identified it. The waste facility particular is the disposal and/or storage of waste. The particulars of the waste have been amended in the course of today’s proceedings to reflect the Statement Of Agreed Facts so that the waste is limited to building and/or demolition waste.

3 The offence covered by s144 is one of a number of offences provided for in the Act under the heading Part 5.6, “Land Pollution” it relevantly provides in subs 1:

A person who is the owner or occupier of any land that cannot lawfully be used as a waste facility and who permits the land to be used as a waste facility is guilty of an offence.

4 The maximum penalty imposed in the case of a corporation is $250,000 with a further penalty of $120,000 for each day the offence continues. In the case of an offence committed by an individual (such as in the present case) the maximum penalty prescribed is $120,000 with a further penalty of $60,000 for each day the offence continues.

5 Another separate offence created by that part of the Act and one in respect of which there have been a number of charges and convictions in this Court is the offence of unlawful transporting of waste. This offence is provided for in s143 of the Act:

If a person transports waste to a place that cannot lawfully be used as a waste facility for that waste, the person, and, if the person is not the owner of the waste, the owner of the waste, are each guilty of an offence.

6 I mention that matter at the outset because…

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: [2004] NSWLEC 773
Decision Date: 08/16/2004

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the Environment Protection Authority brought a case against Andrew Howard Slade, who had permitted his land to be used as a waste facility. The court considered Slade's guilty plea and mitigating factors. The defendant had allowed waste to be transported and deposited on his property, despite not having the necessary permits. The court acknowledged that Slade had genuinely relied on incorrect advice regarding the need for development consent and licensing requirements.

The court deliberated on the appropriate sentence, considering both the objective facts and subjective factors. It was noted that no environmental harm resulted from the incident, and Slade had cooperated with authorities and expressed genuine remorse. The court took into account the disparity in penalties between Slade's case and that of Terrace Earthmoving Pty Ltd, the company responsible for transporting the waste. The maximum penalty for Slade's offence was $120,000, while Terrace Earthmoving faced a maximum penalty of $250,000.

Ultimately, the court decided that a fine would be disproportionate given the circumstances. Instead, it imposed an environmental services order, requiring Slade to erect a five-strand barbed wire fence along the boundary with the Kooragang Nature Reserve. The court also ordered Slade to pay the prosecutor's legal costs in the sum of $10,000. The court's decision was based on the absence of environmental harm, Slade's cooperation, and his genuine contrition. The court believed that the combination of the environmental services order and the payment of legal costs would provide adequate deterrence and accountability for Slade's actions.

Orders