Environment Protection Authority v Sorcevski - [2002] NSWLEC 115

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Sorcevski [2002] NSWLEC 115

PARTIES:
PROSECUTOR
Environment Protection Authority
DEFENDANT
Tony Sorcevski

FILE NUMBER(S): 50082; 50083 of 2001

CORAM: Talbot J

KEY ISSUES: Prosecution :- using land as a waste facility - penalty

LEGISLATION CITED: Environmental Offences and Penalties Act 1989 s 14
Protection of the Environment Operations Act 1979 s 144(1), s 241, s 241(1)(a), s 241(1)(b), s 241(1)(c), s 245
Waste Minimisation and Management Act 1995 s 64(1)
Port Stephens Local Environmental Plan 1987 cl 25

CASES CITED:

DATES OF HEARING: 28/05/2002

EX TEMPORE
JUDGMENT DATE :
05/28/2002

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr D Jordan (Barrister)
SOLICITORS
Environment Protection Authority
DEFENDANT
In Person
SOLICITORS
N/A

JUDGMENT:

IN THE LAND AND Matter No. 50082 – 3 of 2001
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 28 May 2002

Environment Protection Authority

Tony Sorcevski

Defendant

REASONS FOR JUDGMENT

1. HIS HONOUR: The defendant has pleaded guilty to two charges. Firstly, as the owner of land that cannot be lawfully used as a waste facility, he admitted that between 20 April 1999 and 30 June 1999 he allowed it to be used as a waste facility in breach of s 64(1) of the Waste Minimisation and Management Act (1995) (“the Waste Minimisation Act”). Pursuant to s 64(1) of the Waste Minimisation and Management Act, an owner who permits land to be used as a waste facility without lawful authority is guilty of an offence under the Environmental Offences and Penalties Act 1989 (“the EOP Act”). The second offence involves a breach s 144 (1) of the Protection of the Environment Operations Act 1979 (“the PEO Act”) , arising from the receipt of waste after 1 July and up to 8 July 1999.

2. Up to 30 June 1999 when the Waste Minimisation Act was repealed, the defendant operated a land fill site located in or within 40 metres from a permanent or intermittent water body without a licence under the Waste Minimisation Act, or development consent under the EOP Act
3. After 30 June 1999 s 144 of the PEO Act came into force and provided that an owner who permits land to be used as a waste facility where it cannot be so used is guilty of an offence. Of the total 7,167 tonnes deposited on the defendant’s land during the period up to 8 July 1999, the Court has been told that 14.3 per cent was deposited after 30 June.

4. The maximum penalty prescribed under the EOP Act up to 30 June 1999 was $60,000 whereas under the PEO Act the maximum penalty is now $120,000.

5. The defendant has agreed to the terms of proposed orders which are to be made pursuant to s 14 of the EOP Act ( which remains in force notwithstanding the repeal of that Act) and s 245 of the PEO Act whereby the site will be rehabilitated to a state satisfactory 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.

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Details

Case: [2002] NSWLEC 115
Decision Date: 05/28/2002

CaseChat Overview and Summary

The Land and Environment Court of New South Wales heard the case of Environment Protection Authority v Sorcevski, where Tony Sorcevski was prosecuted for using his land as a waste facility without lawful authority and for receiving waste after a certain date, in breach of the Waste Minimisation and Management Act 1995 and the Protection of the Environment Operations Act 1979. Sorcevski pleaded guilty to both charges. The court had to decide on the appropriate penalties and rehabilitation orders.

The legal issues before the court included determining the extent of the environmental harm caused by Sorcevski's actions and assessing the penalties under the Environmental Offences and Penalties Act 1989 for the two offences. The court also had to consider the factors under the PEO Act that would influence the penalty, such as the extent of harm caused, the defendant's ability to foresee the harm, and the defendant's cooperation with the investigation and remediation efforts.

Talbot J held that the deposit of waste had a significant detrimental effect on the land, destroying part of the wetland, squashing and smothering vegetation, and contaminating the soil. Despite the environmental harm, the soil and material in the mound were not toxic to humans or unsuitable for use according to the New South Wales Site Auditors Scheme. The court took into account Sorcevski's guilty plea, cooperation with the investigation, and expressions of contrition. Given the totality of the criminality and the circumstances, the court imposed a penalty of $6,000 for the first offence and $2,500 for the second offence. The court also ordered Sorcevski to pay the prosecutor's costs and mandated the rehabilitation of the site to a state satisfactory to the prosecutor.

The formal orders of the court were that Sorcevski was convicted on both charges, ordered to pay a fine of $6,000 for the first charge and $2,500 for the second charge, and ordered to pay the prosecutor's costs. Additionally, rehabilitation orders were made under the respective sections of the EOP Act and the PEO Act to ensure the site would be restored to an environmentally satisfactory condition.

Orders