Environment Protection Authority v Tenterfield Shire Council
[2000] NSWLEC 229
•11/07/2000
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 CouncilFILE 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 9CASES 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 359DATES OF HEARING: 25/08/2000 DATE OF JUDGMENT:
11/07/2000LEGAL REPRESENTATIVES: DEFENDANT:
PROSECUTOR:
Mr M M Kelly (Solicitor)
SOLICITORS:
Stephen Garrett
Mr J B Maston (Barrister)
SOLICITORS:
Taylor Kelso
JUDGMENT:
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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
v
Tenterfield Shire Council
Defendant
REASONS FOR JUDGMENTIntroduction
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 around the plant whilst waiting for the sludge to drain. He completed the other jobs before going home, but he forgot to close the valve. This omission was only noticed when he returned to the plant the following morning. The open valve had drained all its contents into sludge digesters 1 and 2 at the plant. The excess sewage overflowed therefrom into a stormwater drain and then to Tenterfield Creek. Once the secondary settling tank was empty it allowed all incoming sewerage to the plant to continue to overflow into the stormwater drain, instead of being treated through the plant and pumped to the detention pond, as per the design of the plant.
6. The council notified the EPA at 9:30 am on 21 April 1999, and EPA officers inspected the plant on the same day, taking photographs and samples. The EPA’s investigations led to an estimate that approximately 300,000 litres of “ primary settled sewage ” was discharged to Tenterfield Creek. The effects of the discharge had by then moved away from the discharge point but were detectable at a sample point 3 km downstream. The EPA calculated that the chemical oxygen demand was elevated to 30 mg/L. This is compared to upstream of the discharge where it was less than 20 mg/L. The ammonia level 3 km downstream was elevated to 1.1 mg/L compared to the upstream value of 0.04 mg/L. The elevated ammonia level was likely to have been the result of the discharge and potentially was harmful to organisms living within the creek. Nitrogen levels downstream were elevated to 2.33 mg/L, from an upstream value of 0.81 mg/L (which was already above the ANZECC national guideline of 0.75 mg/L for the protection of aquatic ecosystems). Elevated nitrogen levels have been known to cause adverse environmental effects such as algal blooms and excessive growth of nuisance plants. Total phosphorus downstream was 0.46 mg/L, with the upstream background level of 0.04 mg/ L. The ANZECC guideline for phosphorus is 0.10 mg/L. The relatively high proportion of “ free reactive ” phosphorous downstream had the potential to contribute to algal blooms and the growth of nuisance aquatic plants.
7. Clean-up of the spill was not practicable as the creek had diluted and moved the discharge downstream. Following this incident the council has implemented close-down procedures at the plant to incorporate a signed checklist to ensure that stormwater pits are sealed outside normal working hours. Various other measures are being considered by the council, such as the installation of a pH alarm in the stormwater outlet. The council has purchased an emergency generator to reduce the possibility of future spillage due to blackout, and has conducted a feasibility study for a new sewage treatment plant. The council’s services superintendent and its plant operator have enrolled in an advance training course in plant operation (sewerage and waste water control) and water treatment.
Statutory Considerations
8. Section 16(1) of the Clean Waters Act 1970 states:
A person shall not pollute any waters
9. Section 9 of the Environmental Offences and Penalties Act 1989 (now re-enacted in section 241 of the Protection of the Environment Operations Act 1997) requires the consideration of a number of factors in imposing a penalty. It provides as follows:
(1) In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant):
(a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence,
(b) the practical measures that may be taken to prevent, control, abate or mitigate that harm,
(c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence,
(d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence,
(2) The court may take into consideration other matters that it considers relevant.(e) whether, in committing the offence, the person was complying with orders from and employer or supervising employee,
10. Section 8B(1)(a) of the Environmental Offences and Penalties Act provides a maximum penalty of $125,000 for this offence, a Tier 2 category offence.
The Submissions of the Prosecutor
11. The prosecutor, Mr M M Kelly of the EPA, submits that there is evidence of actual harm caused to Tenterfield Creek including elevated levels of total phosphorus, free reactive phosphorus, total kjeldahl nitrogen (TKN), total nitrogen, chemical oxygen demand and ammonia, which were detectable 3km downstream. It was additionally submitted that the potential for algal blooms downstream has been increased. Testing for viruses and bacteria was not carried out. The prosecutor submits, however, that the fact that sewage effluent is known to contain these organisms should be considered as a component of the harm caused to the environment.
12. Mr Kelly relies on the judgment of Pearlman J in Environment Protection Authority v The Shell Company of Australia Limited ([2000] NSWLEC 16, unreported) in which her Honour stated:
In my judgment, where actual harm occurs, even though there will be no lasting potential harm, I regard the spill as serious and not minor.
13. In relation to the fact that the council is a public entity, Mr Kelly refers to judgment of Sheahan J in Environment Protection Authority v Forestry Commission (NSWLEC, 23 July 1997, unreported) in which his Honour said:
The Forestry Commission, although gaining a profit from its activities, carries out a function in the public interest, and the public looks to the public body involved in the industry to set some standard for the private sector of it, to be the ‘leading edge’ operator in the industry.
14. This case may be contrasted with Environment Protection Authority v Orange City Council (NSWLEC, 23 June 1995, unreported) in which Stein J said:
A matter which I bear in mind is the fact that the imposition of a fine will be an added burden to the Council. The Council has only certain sources of income which include the ratepayers and those who pay to enter the pool.
15. Mr Kelly argues that the fact the Act fixes the penalties it does for environmental offences indicates the seriousness with which such pollution is regarded by the legislature and also the need to deter potential polluters, offering an incentive to the implementation of precautionary measures.
16. The council could have implemented the signed checklist procedures previously, as well as a pH alarm; and Mr Kelly argues that human error is a reasonably foreseeable occurrence. The council had total control over the equipment and procedures at the plant
The Submissions of the Defendant
17. Mr J B Maston, appearing for the council, places emphasis on the council’s very prompt reporting of the incident to the EPA.
18. Mr Maston refers to the case R v Olbrich (1999) 73 ALJA 1550; 166 ALR 330, in which the principle explained in R v Storey (1998) 1 VR 359 was approved, namely, if there is a plea of guilty, the plea will stand as an admission of the elements of the offence charged, but, of course, of no more than those elements.
19. As I understand his submission, Mr Maston relies in particular on the joint judgment of Gleeson CJ, Gaudron, Hayne and Callinan JJ at 155 [par 27]:
As to the standard of proof that should be applied, we would adopt what was said by the majority in R v Storey - that a sentencing judge
‘may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which that judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.’
20. Mr Maston submits that this principle in sentencing should be applied in this case because, in Mr Maston’s submission, the council’s witnesses state that the existence of environmental harm is impossible to prove. The sewage was not “raw” and therefore the harm was not as great as may be expected. The cold temperature of the night reduced the ammonia solubility, and the high flow rate of the creek prevented any harm to animal or vegetative life. In Mr Maston’s submission. the harm to the environment has not been proved beyond all reasonable doubt.
21. Mr Maston argues that there was a list of normal “close-down” duties, but in this instance it was just inadvertence that these were not followed on the afternoon of the incident; and the situation was not one where nothing had been done to prevent such incidents. Mr Maston characterises the situation where there was a prevention system in place and that has since been improved, but one can always improve a system and this is an ongoing process.
22. Mr Maston relies upon the public benefit of the provision of sewage plant and submits that Orange City Council case should be similarly applied to the council’s sewage plant in this case and that swimming pool in that case produced some business income in contrast to the sewage plant in this case. Mr Maston submitted that the ultimate burden of a monetary penalty would fall on ratepayers, who would be indirectly funding the fine and he further submitted that this should act to mitigate the severity of penalty.
23. In Mr Maston’s submissions, this is not a case in which the fact the council held a licence should lead to a heightened penalty, because the licence permits waste water to be released into the stream and hence the discharge of partially treated sewage does not amount to a breach of the licence. Mr Maston submits that a low range penalty would be appropriate in this case.
24. I turn now to consider the matters which the court is required to consider in imposing a penalty.
Extent of harm caused or likely to be caused
25. I accept the principle relating to the standards of proof relied upon by Mr Maston, noted in paragraphs 18 and 19 above. In applying those principles I find as a fact that harm is proved to have occurred beyond all reasonable doubt. Partially treated sewage was spilt, sludge was deposited below the storm water outlets and a significant amount of this contaminant entered a flowing creek. It is obvious that such an occurrence has harmed the environment. At a very basic level, the aesthetic appearance of the area between the storm water outlets and the creek was harmed, and it can be assumed that a significant amount of contaminants entered the ecosystem.
26. What remains to be determined, then, is what degree of harm has been proved beyond reasonable doubt. Mr Robert A’Hern, an officer of the EPA, took samples from creek on the afternoon of 21 April 1999. These samples were then tested for three chemicals. Mr Anthony Church, a scientist employed by the EPA, deposed as to the elevated levels of phosphorus, nitrogen and an elevated chemical oxygen demand, as described in paragraph 6 above.
27. Mr Matthew Buchanan, an environmental scientist, who submitted an affidavit argues that the measurements taken 3 km downstream were not representative of water quality because only one sample was taken, instead of several samples to counter any variance at that point. In his opinion the behaviour of chemical and physical parameters in water are such that sampling strategies should include control samples. He does not believe that the sampling strategy used by the EPA in this case was sufficient to determine water quality and the degree of variance.
28. Mr Buchanan does agree that the oxygen demand in samples from the pond below the stormwater outlet were high with sewage and that this could lead to stress or death of aquatic organisms. Further, he believes that this particular effect of the discharge would have posed the greatest threat to aquatic life. Mr Buchanan’s evidence is corroborated by another witness, Ms Patrice Brown, an environmental scientist.
29. The conclusions I draw from this evidence is that there was a certain amount of environmental harm, but the precise level measured by the EPA has not been proven beyond reasonable doubt. It may be that the favourable conditions of a fast flowing creek on a cold night helped to minimise the actual harm caused by the overflow. I consider that a minor degree of harm has been proved beyond reasonable doubt. I also take into account the potential for greater harm had conditions been less favourable, such potential not being disputed.
Practical measures to prevent harm
30. The council had a list of “ close-down ” procedures which was supposed to be followed by staff of the treatment plant. The crucial practical measure that it failed to introduce was a “ sign-off ” protocol to help ensure that lapses of memory by staff were minimised.
31. The subsequent installation of a pH alarm and an emergency generator indicate that the council had not pursued all possible measures prior to the incident. I believe that the council has acted appropriately since the incident and it is unfortunate that these precautions had not been made beforehand.
Foreseeability of the harm
32. All employers who delegate responsibility must foresee the likelihood of human error on the part of their staff and it is the employer’s role to put in place mechanisms and procedures to minimise this likelihood. An audit system to identify risks, be they from human error, weather, blackouts or any other foreseeable cause could and should have been in place to reduce all such risks.
33. It is clear that a discharge of sewage into the creek, in the event of an overflow, was foreseeable. The licence terms allowed for discharge of treated sewage into the creek, and the layout of the site’s drainage system pointed clearly to this outcome. The foreseeability of such an overflow causing harm to the creek’s environment was equally clear, given that sewage necessarily requires removal from populated areas and complex treatment processes before it is rendered “safe”.
Extent of control over causes of offence
34. The sewage treatment plant was owned and operated by the council. The actions of the council employee were under the council’s control, in the sense that he was conducting his normal employment duties, as required by the council. Mr Maston accepts that the council is and was responsible for the acts of its employees.
Other relevant considerations
35. In Mr Maston’s submission, the public nature of the council’s activities should be taken into account. Since it will be the ratepayers of the council that will ultimately suffer the burden of any fine, they should not be penalised as heavily as other polluters and “constituents” of other kinds of polluting organisations.
36. In this respect I said in Environment Protection Authority v Lake Macquarie City Council , [1999] NSWLEC 4, unreported, (at p 35):
[I]n favour of the defendant I take into consideration the fact that it is providing a public facility for the community and not for the purpose of making a profit therefrom; and that it must not only pay a fine but also pay the costs of the prosecutor, which fine and costs would fall upon the general body of ratepayers.
37. There are several strands of reasoning to the argument that fines should be mitigated for public institutes as polluters. The simplest, on a purely economic basis, is that since any fine will go towards consolidated revenue, the ratepayers who will ultimately pay the penalty and who also benefit from consolidated revenue, should not have to pay the fine. This line of reasoning queries why benefit of one arm of the public should pay money to another arm of public administration.
38. Of course this economic argument fails to take account of the value of deterrence that penalties provide. Apart from the benefit to the environment of people refraining from polluting, there will undoubtedly be a long-term benefit of reduced costs of cleaning up pollution. Additionally, it should be noted that the two groups of public constituents referred to above, the ratepayers and the residents of the State, are different groups. It could be argued that the movement of money from ratepayers to State revenue is an appropriate response to notionally compensate the broader population for the wrongful actions in one area of the State. In essence, this counter-argument is premised on the principle that the whole population of the State is entitled to a pollution-free environment, and hence, if any sub-group of that population compromises a part of the environment, then the whole State has an interest in penalising the polluter, whether public or private.
39. The relatively restricted size of a body of ratepayers is raised as justification for leniency towards councils. In Environment Protection Authority v Bega Shire Council (NSWLEC, 14 August 1998, unreported) Sheahan J (at p 32) distinguishes ratepayers from other groups who may be ultimately liable for the cost of any penalties:
The burden of any penalty really falls quite directly upon the ratepayers and not upon a broad base of consumers at large, or of shareholders in a public corporation.
40. Another strand of reasoning which might justify a mitigation of penalty for councils is that ratepayers, who would ultimately bear the cost of any fines, have insufficient control over the actions of the council’s staff:
[T]he court must take into account that it is not the ratepayers or even the elected Councillors who are responsible for this unfortunate event, and that any fine imposed by the Court will be an added burden on those ratepayers, and also possibly on users of waste management facilities within Council’s area. ( Environment Protection Authority v Bega Shire Council , Sheahan J, NSWLEC, 14 August 1998, unreported, at p 30).
41. Whether the damage caused by employees of a council is intentional or unintentional, the council remains their employer, and the council remains responsible for the training and supervision of its staff. Just as councils employing staff are subject to occupational health and safety laws, and other employer obligations, councils are liable for the actions of their staff and hence are liable for any pollution caused by their staff.
42. The issue of whether ratepayers have sufficient control over the action of a council and its staff is relatively straightforward. Ratepayers have the right to control the affairs of council to greater degree than other groups who may carry the burden of penalties. Ratepayers have a basic democratic right to vote for the councillors they prefer. In this sense, ratepayers have the right to elect the personnel who, in turn, control the affairs of council, including appointment of staff and their supervision. Consumers of goods and services have no similar power. The power of consumers to influence manufacturers is not institutionalised in any way. The option to refrain from buying certain goods is not always a realistic option, particularly if the product is specialised. Shareholders in a public company have some democratic input, but this right is proportionate to holdings.
43. In Environment Protection Authority v Gosford City Council [2000] NSWLEC 154, unreported, Talbot J mitigated the penalty due to the nature of the council as a public body. This mitigation was given less weight, however, because the offence had occurred when the council was carrying out “non-government” activities:
I also take into account the fact that the council is a public body carrying out an administrative function in the public interest, counterbalanced on this occasion by the fact that it was involved in a non government enterprise.
The offence in that case occurred when a council employee was spraying pesticide for an army grub infestation at Kincumber High School pursuant to a commercial arrangement made by the council.
44. In this way, the nature of the council’s activity may be seen as relevant in deciding whether there should be any mitigation. Any activities that are commercial in nature would tend to negate any special mitigating consideration for public bodies. On a previous occasion I said:
Sydney Water is entrusted with the sole ownership and control of the sewage networks in the Sydney Region. In this way it can be likened to local councils who are entrusted with similar responsibilities and duties...
In addition to its public responsibilities, Sydney Water is constituted as an independent statutory corporation... [and] it cannot be given special exemptions simply because its shareholder, the state government, is not private. ( Environment Protection Authority v Sydney Water Corporation [2000] NSWLEC 156, unreported)
45. The question of whether the council’s activity is for the public benefit is not altogether straightforward. Undoubtedly the provision of services such as sewerage and garbage collection do benefit the community. Moreover, any industry that provides employment for local residents could be said to be providing a public benefit. In addition, there are many private not-for-profit and charitable organisations that may arguably deserve some mitigation of any penalty, if public benefit is a ground for reducing the penalty.
46. In response to the arguments that seek to mitigate penalties because the defendant is a council, there are corresponding arguments that seek to impose a heavier fine because of the higher responsibility attributed to public bodies. The public “trust” given to councils should mean that they must exercise a greater vigilance to balance that trust:
In my opinion, there should be no mitigation in the amount of penalty due to the nature of the defendant’s activities. Sydney Water is in a position of public responsibility and its duties must be carried out with proper regard to all of its obligations, including the need to protect the environment. ( Environment Protection Authority v Sydney Water Corporation [2000] NSWLEC 156, unreported)
47. The fact that councils themselves have duties to monitor and enforce environmental laws is a factor in favour of a heavier penalty. Councils are aware of the relevant provisions and the need for their enforcement. It is therefore expected that a council keep its own affairs in order, avoiding itself those offences it seeks to prevent others from committing. This consideration has been recognised in the past:
This has been a most unfortunate incident for the Council and its residents... The Council has its own duties to enforce environmental law. (Environment Protection Authority v Orange City Council (Stein J, NSWLEC, 23 June 1995, unreported, at p 12)
The Court takes into account the responsibilities of Council to enforce environmental law within this area, and the senior positions of trust and responsibility occupied by the Council officers directly implicated in the offence. (Environment Protection Authority v Bega Shire Council (Sheahan J, NSWLEC, 14 August 1998, unreported at pp 29-30)
48. In my opinion, the primary consideration, overriding all these factors relating to the nature and activities of councils, is the absolute prohibition contained in the Clean Waters Act: A person shall not pollute any waters. The offence is one of strict liability and neither the identity of the offender nor the function it performs is a factor in determining guilt. The Protection of the Environment Operation Act specifies the relevant considerations in imposing a penalty such as degree of environmental harm and extent of control over the causes of the offence, but the Act also allows for the consideration of any other matter that the court considers relevant.
49. From my above exploration of the issues surrounding the determination of a penalty for a local council, it is clear that the issues are by no means simple or uniform across different circumstances. It cannot be assumed that simply because the defendant is a council, the ratepayers need protection from high penalties. The wording of the statute is clear. The primary relevant considerations are the circumstances of the offence itself, not the precise nature of the offender. The other relevant considerations may include the nature of the defendant’s activity or business but the various strands of reasoning should be balanced against each other. Talbot J, in an ex tempore judgement said:
Mr Ayling has put to the Court that consideration should, in that regard, be given to the fact that the ultimate liability for penalty must come from the quasi public purse which the council administers. Nevertheless, the Court recognises that the penalty should be such that it signifies the seriousness with which the law and the Court, in enforcing the law, regards offences of this type and deters not only councils, but any other authority or enterprise or individual which, from time to time, has cause to dispose of liquids which may have toxic consequences in rivers and watercourses, from doing so without due regard to their responsibilities under legislation such as the Clean Waters Act.
Further, the penalty should be such that the council’s constituents are alerted to the performance of their public servants and electorate representatives who might be held accountable for their failure to comply with the law in some other way by other means at other times. As Mr Ayling recognised in his submissions, it becomes a question of balancing all of those factors. (Environment Protection Authority v Casino Council, NSWLEC, 21 November 1997, unreported)
50. I am prepared to adopt the approach of Talbot J in the Casino Council case. The primary consideration is, as I have noted, the absolute prohibition contained in the Clean Waters Act. It is to ensure that waters will not be polluted. In the present case the incident was preventible, as the means which the council has subsequently taken demonstrate. The council, as a public body, should be setting an example to other potential polluters in the preventing of pollution, rather then being itself a polluter. The fine to be imposed must also be sufficient to act as both a specific and a general deterrent to the commission of similar offences.
51. Section 22 of the Crimes (Sentencing Procedure) Act 1999 requires that I take into account the council’s plea of guilty, which I accept was in this case entered at an early stage. I do not place a great deal of weight on the utilitarian value of the plea, since the facts show that the case against the council, would, if defended, have been strong, and the evidence needed to establish the charge would not have been much different to that which was presented before me. I also take into account, however, the fact that it was the council itself which notified the EPA of the incident. Moreover, at the full meeting of the council, the council expressed its sincere regret about the incident and directed that all necessary action continue to be taken to prevent a further occurrence. Those factors suggest a total discount in the amount of twenty five percent in the penalty which would otherwise have been imposed. I thus reduce the penalty appropriate for this offence from $20,000.00 to a sum of $15,000.00.
52. I make 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.
4. The exhibits may be returned.
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