Environment Protection Authority v Tenterfield Shire Council - [2000] NSWLEC 229

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Tenterfield Shire Council [2000] NSWLEC 229

PARTIES:
PROSECUTOR:
Environment Protection Authority
DEFENDANT:
Tenterfield Shire Council

FILE NUMBER(S): 50015 of 2000

CORAM: Lloyd J

KEY ISSUES: Environmental Offences :- water pollution - overflow from council sewage treatment plant - guilty plea - principles in sentencing public utilities - penalty

LEGISLATION CITED: Clean Waters Act 1979 s 16(1)
Crimes (Sentencing Procedure) Act 1999 s 22
Environmental Offences and Penalties Act 1989 s 8B(1), s 9

CASES CITED: Environment Protection Authority v Bega Shire Council, Sheahan J, NSWLEC, 14 August 1998, unreported;
Environment Protection Authority v Forestry Commission, Sheahan J, NSWLEC, 23 July 1997, unreported;
Environment Protection Authority v Gosford City Council [2000] NSWLEC 154, unreported;
Environment Protection Authority v Lake Macquarie City Council [1999] NSWLEC 4, unreported;
Environment Protection Authority v Orange City Council, Stein J, NSWLEC, 23 June 1995, unreported;
Environment Protection Authority v Sydney Water Corporation [2000] NSWLEC 156, unreported;
Environment Protection Authority v The Shell Company of Australia Limited [2000] NSWLEC 156, unreported;
R v Olbrich (1999) 73 ALJR 1550; 166 ALR 330;
R v Storey (1998) 1 VR 359

DATES OF HEARING: 25/08/2000

DATE OF JUDGMENT:
11/07/2000

LEGAL REPRESENTATIVES:

PROSECUTOR:
Mr M M Kelly (Solicitor)
SOLICITORS:
Stephen Garrett
DEFENDANT:
Mr J B Maston (Barrister)
SOLICITORS:
Taylor Kelso

JUDGMENT:

IN THE LAND AND Matters No: 50015 of 2000

ENVIRONMENT COURT Coram: Lloyd J

OF NEW SOUTH WALES Decision date:7 November 2000

Environment Protection Authority

Prosecutor

Tenterfield Shire Council

Defendant

REASONS FOR JUDGMENT

Introduction

1. The defendant, Tenterfield Shire Council (the “council”) is charged with polluting water, in breach of section 16 of the Clean Waters Act 1970. The council has pleaded guilty at an early stage in these proceedings and has co-operated with the prosecutor, the Environment Protection Authority (the “EPA”) in its investigation of the offence.

2. The council operates a sewage treatment plant to the north of Tenterfield, which receives sewage from the majority of the town of Tenterfield. The plant is licensed by the EPA.

Summary of Facts

3. The facts which I now describe are derived from an agreed statement of facts and supplemented by affidavit evidence.

4. The council’s licence for the sewage treatment plant allows the discharge of treated effluent from the plant to a detention pond about 600m to the north of the plant. Following detention of the treated effluent for 30 days the effluent is then used for irrigation on adjacent land and the Tenterfield Golf Course. The licence allows excess tertiary treated effluent in the detention pond to be directly discharged into the creek.

5. On 20 April 1999, a relief employee of the council carried out a standard procedure of opening a valve to drain sludge from the secondary settling tank to a sludge digester at the plant. As the sludge was slow to drain from the settling tank , the employee decided to continue with other tasks…

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: [2000] NSWLEC 229
Decision Date: 11/07/2000

CaseChat Overview and Summary

The Tenterfield Shire Council was prosecuted by the Environment Protection Authority for an offence against the Clean Waters Act 1970, which occurred when partially treated sewage overflowed from the council's sewage treatment plant into Tenterfield Creek. The council pleaded guilty and co-operated with the EPA's investigation. The court had to consider various factors in determining an appropriate penalty for the offence, including the extent of harm caused, the foreseeability of the harm, the extent of the council's control over the causes of the offence, and the public nature of the council's activities. The court found that there was a certain degree of environmental harm, but not to the extent measured by the EPA. The council had a list of "close-down" procedures but failed to introduce a "sign-off" protocol to help ensure that lapses of memory by staff were minimised. The court found that the foreseeability of the harm and the council's control over the causes of the offence were clear. The court considered the arguments for and against mitigating the penalty due to the council's public nature, but ultimately decided that the primary consideration was the absolute prohibition contained in the Clean Waters Act. The court imposed a penalty of $15,000.00, taking into account the council's plea of guilty and its co-operation with the EPA.

The court made the following orders: (1) the defendant is convicted of the offence as charged; (2) the defendant must pay a penalty of $15,000.00; (3) the defendant must pay the prosecutor’s costs in accordance with section 52(2) of the Land and Environment Court Act 1979; and (4) the exhibits may be returned.

Orders