Environment Protection Authority v Smart Skip (NSW) Pty Ltd - [2009] NSWLEC 204

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Smart Skip (NSW) Pty Ltd [2009] NSWLEC 204

PARTIES: PROSECUTOR
Environment Protection Authority
DEFENDANT
Smart Skip (NSW) Pty Ltd

FILE NUMBER(S): 50035 of 2009

CORAM: Pain J

KEY ISSUES: PROSECUTION :- sentence - corporation using land as waste facility without environment protection licence - waste operations in excess of threshold where no licence required - no actual environmental harm - efforts made after offence to ensure compliance with legislation- mitigating factors - order for prevention made - publication order made

LEGISLATION CITED: Protection of the Environment Operations Act 1997 s 144, 241, 245, 250, Sch 1
Crimes (Sentencing Procedure) Act 1999 s 3A, 21A

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
Environment Protection Authority v Forgacs Engineering Pty Limited [2009] NSWLEC 64
Environment Protection Authority v Ghossayn [2009] NSWLEC 181
Environment Protection Authority v Hogan [2008] NSWLEC 125
Environment Protection Authority v Holley [2009] NSWLEC 124
Environment Protection Authority v Werris Creek Coal Pty Ltd
Gosford City Council v Australian Panel Products Pty Ltd [2009] NSWLEC 77
Hoare v R (1989) 167 CLR 348 at 354
R v Olbrich (1999) 199 CLR 270
R v Sharma (2002) 54 NSWLR 300
R v Thomson; R v Houlton (2000) 49 NSWLR 383
Veen v The Queen [No. 2] (1988) 164 CLR 465

DATES OF HEARING: 30 November 2009

EX TEMPORE JUDGMENT DATE: 30 November 2009

LEGAL REPRESENTATIVES: PROSECUTOR
Mr M Kelly
SOLICITOR
Environment Protection Authority
DEFENDANT
Mr I Lloyd QC
SOLICITOR
Colin Biggers & Paisley

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

30 November 2009

50035 of 2009 Environment Protection Authority v Smart Skip (NSW) Pty Limited
EX TEMPORE JUDGMENT

1 Her Honour: The Defendant, Smart Skip (NSW) Pty Ltd, is charged with committing an offence under s 144(1) of the Protection of the Environment Operations Act 1997 (the POEO Act) from 1 July 2006 to 30 June 2007, at or near Silverwater that as the occupier of land, it caused the land to be used as a waste facility without lawful authority. Section 48 of the POEO Act requires that specified premises must hold an environment protection licence. These are specified in Schedule 1 to include waste facilities which store, separate and process more than 30,000 tonnes of waste per year.

2 The particulars of the offence set out in the summons were the sorting at the site and/or transferring to and/or from the site more than 30,000 tonnes of waste per year without holding an environment protection licence and the sorting at the site of more than 80 tonnes per day of waste contrary to a development consent. The waste comprised demolition waste including concrete, metal, bricks, plastic and soil.

3 The Defendant pleaded guilty to the offence on 21 August 2009 (the third directions hearing) and has therefore admitted the essential…

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: [2009] NSWLEC 204
Decision Date: 30 November 2009

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the Environment Protection Authority prosecuted Smart Skip (NSW) Pty Ltd for using land as a waste facility without lawful authority. The charge related to the period from 1 July 2006 to 30 June 2007. The court had to decide the appropriate penalty to impose on the defendant for the offence. The court found that the defendant had committed the offence and that it had provided a commercial advantage over its competitors and saved it from the expense of complying with the development control legislation and the Protection of the Environment Operations Act 1997. The defendant had been warned by the Environment Protection Authority to stay below the licence threshold and was required to hold an environment protection licence for the premises. The defendant was operating at a level of throughput of waste above the limits specified in the development consent for the premises. The court considered the purposes of sentencing, the statutory scheme in which the offence provision appeared, and other objective and subjective circumstances. The court found that the culpability of the defendant was at the low to medium end of the spectrum. The court also found that the defendant had taken reasonable measures to prevent further breaches of the waste tonnage limits under the Protection of the Environment Operations Act 1997 and was unlikely to reoffend. The court imposed a penalty of $50,000 on the defendant and ordered it to pay the Environment Protection Authority’s costs of $20,000. The court also ordered the defendant to report its throughput monthly to the Environment Protection Authority.

Orders