Environment Protection Authority v Timber Industries Ltd - [2000] NSWLEC 39

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Timber Industries Ltd [2000] NSWLEC 39

PARTIES: Prosecutor:
Environment Protection Authority
Defendant:
Timber Industries Australia Ltd (ACN 000 049 221)

FILE NUMBER(S): 50079 of 1999

CORAM: Lloyd J

KEY ISSUES: Environmental Offences :- water pollution - guilty plea - penalty

LEGISLATION CITED: Clean Waters Act 1970, s16(1)
Crimes Act 1900, s439
Environmental Offences & Penalties Act 1989, s9
Interpretation Act 1987, s30(1)
Protection of the Environment Operations Act, s241

CASES CITED:

DATES OF HEARING: 23/02/00

EX TEMPORE
JUDGMENT DATE : 02/23/2000

LEGAL REPRESENTATIVES:
APPLICANT:
D Samuels (solicitor)
SOLICITORS:
S Garrett
DEFENDANT:
A L Hill (barrister)
SOLICITORS:
Pryor Tzannes & Wallis

JUDGMENT:

IN THE LAND AND Matter No: 50079 of 1999

ENVIRONMENT COURT Coram: Lloyd J

OF NEW SOUTH WALES Decision date: 23/02/00

Environment Protection Authority

Applicant

Timber Industries Pty Ltd

Respondent

JUDGMENT

HIS HONOUR:

1. The defendant has pleaded guilty to an offence against the Environmental Offences and Penalties Act 1989 in that on or about 3 November 1998 it did pollute waters contrary to s 16(1) of the Clean Waters Act 1970.

2. The Clean Waters Act has since been repealed and its provisions have been largely repeated in the Protection of the Environment Operations Act 1997. Liability for offences committed under legislation which is subsequently repealed however, continues (s 30(1), Interpretation Act 1987.)

3. The defendant is and was at all relevant times the occupier of a factory premises at 369 Stewart Street Bathurst. The main operation carried out within the factory is the treatment and moulding of dried timber. The process involves the storage and use of a product called Vascol Clear N-RTU Solution. The product is used as a wood preservative for the protection of timber against fungal and insect attack. The product was apparently kept in a steel tank within the plant, the level of the product within the tank being regulated by a float switch.

4. According to the evidence of Mr IJ Murray, who was the manager of the factory at the time, the float switch in the tank was set too high and at times the product seeped out at a gasket between the tank and a vent line.

5. 28 October 1998 the head operator employed by the defendant, Mr RB Wilson, had prepared a maintenance job request to have the high level switch lowered. According to the maintenance job request, the float switch was required to be lowered "as tank is over-filling and fluid is escaping into bund area".

6. On the morning of 3 November 1998 a contract electrician, Mr JV Ellison, worked on the float mechanism and adjusted it. Mr Ellison was unfamiliar with the switch mechanism. There was nothing written on the switch itself, except for a telephone number of a company called Temperature Control. He was unaware of the details of the mechanism of the switch. Mr Ellison had not received any specific training on the particular type of switch. He nevertheless…

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 39
Decision Date: 02/23/2000

CaseChat Overview and Summary

The case before the Land and Environment Court of New South Wales involves the Environment Protection Authority prosecuting Timber Industries Australia Ltd for an environmental offence under the Clean Waters Act 1970, which has since been repealed and replaced by the Protection of the Environment Operations Act 1997. The defendant, an occupier of a factory premises at Bathurst, pleaded guilty to polluting waters by allowing a wood preservative solution, Vascol Clear N-RTU Solution, to escape from a storage tank. The spill occurred due to a malfunction of the float switch mechanism, which was incorrectly adjusted by a contract electrician unfamiliar with its operation. Although the spill was promptly contained and there was no actual environmental harm, the product posed a significant risk to human health and aquatic life.

The key legal issues addressed by the court were the determination of an appropriate penalty under the Environmental Offences and Penalties Act 1989, and consideration of various factors stipulated in the legislation, such as the potential harm, measures taken to prevent recurrence, and the defendant's awareness and control over the incident. The court also considered the defendant's guilty plea, cooperation, and the costs incurred in rectifying the situation and cleaning up the spill. Lloyd J concluded that the penalty should reflect the lower end of the prescribed scale, taking into account the absence of actual environmental harm and the defendant's prompt action to mitigate the spill.

The court found that the penalty should be $15,000, considering the potential harm, the defendant's proactive measures post-incident, and the principle of even-handedness in sentencing. Additionally, the court ordered the defendant to pay the prosecutor's costs amounting to $5,250. This decision underscores the importance of both environmental compliance and the court's discretion in assessing penalties based on the specific circumstances of each case.

Orders