Environment Protection Authority v Transfield Pty Ltd - [2001] NSWLEC 45

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Transfield Pty Ltd [2001] NSWLEC 45

PARTIES: PROSECUTOR
Environment Protection Authority
DEFENDANT
Transfield Pty Ltd

FILE NUMBER(S): 50029 of 2000

CORAM: Sheahan J

KEY ISSUES: Prosecution :- pollution of waters - plea of guilty

LEGISLATION CITED: Protection of the Environment Operations Act 1997 s120(1) and s 241

CASES CITED: EPA v Attard [2000] NSWCCA 242;
EPA v Orange City Council (50045 of 1995 23 June 1995 Stein J)

DATES OF HEARING: 01/02/2001

EX TEMPORE
JUDGMENT DATE :
02/01/2001

LEGAL REPRESENTATIVES:
PROSECUTOR
Mr C McElwain Solicitor
Solicitors
Mr A Ritchie of EPA
DEFENDANT
Mr P Tomasetti (Barrister)
Solicitors
Holding Redlich

JUDGMENT:

IN THE LAND AND Matter No: 50029 of 2000

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

TRANSFIELD PTY LTD

Defendant

JUDGMENT

1. The defendant Transfield Pty Ltd has pleaded guilty to a “pollution of waters” charge under s 120(1) of the Protection of the Environment Operations Act 1997.

2. The hearing has been greatly abbreviated by agreement on a Statement of Facts (Exhibit P1), and by the presentation of comprehensive submissions.

3. The subject incident occurred on 15 July 1999 as the company was nearing the end of its work on the West Ryde Stormwater Tunnel project, in particular works in and near the Smalls Creek Stormwater Channel, which enters the Parramatta River from Meadowbank Park, a large recreation area on an old landfill site opposite Homebush Bay (see Annexure ‘A’ to Exhibit P1 for the street directory map).

4. The court is familiar with that channel and its environs, and Mr Fennessy’s affidavit displays photographs of the poor quality of the water which used to enter the river via the channel prior to the subject works.

5. Work began on the project in early 1998, and on the channel itself in early 1999, and the project was concluded mid 2000. Details of it appear in Mr Fisher’s affidavit, and in the agreed Statement of Facts (“ASF”), and need not be repeated.

6. Transfield held a Pollution Control Act licence 1 April 1998 to 1 April 2000 ( Exhibit P2), which permitted it to discharge water from a designated discharge point into the channel. The relevant conditions of the licence for this present case are :

W1 The volume of liquid waste discharged must not exceed 500 kilolitres per day.

The wastes that may be discharged must not:

W2.1 contain more than 50 milligrams per litre of non-filtrable residue.

W2.2 have a pH value below 6.5 or greater than 8.5 pH units.

W2.3 contain more than 35 milligrams per litre of the coagulant Floctreat 71-34.

W2.4 contain more than 5 milligrams per litre of the flocculant Floctreat 73-00.

7. Mr Fisher deposed to the cost and nature of steps taken by Transfield to treat and test a total of 150 million litres of water, in order to comply with the terms of the licence.

8. Substantially less water was collected…

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: [2001] NSWLEC 45
Decision Date: 02/01/2001

CaseChat Overview and Summary

In the case of Environment Protection Authority v Transfield Pty Ltd, Transfield Pty Ltd pleaded guilty to a charge of pollution of waters under section 120(1) of the Protection of the Environment Operations Act 1997. The incident occurred during Transfield's involvement in the West Ryde Stormwater Tunnel project. The court was required to determine whether Transfield was liable for the pollution of Smalls Creek Stormwater Channel, which flows into the Parramatta River. The key issues included whether the pollution was caused by Transfield's failure to adhere to the conditions of its Pollution Control Act licence, and whether Transfield was negligent in not ensuring proper supervision of its personnel on site.

The court considered the evidence presented, including the terms of Transfield's licence, the measures taken by Transfield to treat and test the water, and the circumstances surrounding the incident. The court found that Transfield had taken numerous precautions to prevent harm, but failed to secure the premises properly and supervise its personnel adequately, leading to the foreseeable harm. Although the breach was relatively minor, the court imposed a monetary penalty to reinforce the importance of environmental compliance and to encourage vigilance within the industry. The court also considered Transfield's good environmental record and its level of cooperation during the proceedings, which resulted in a substantial discount in the penalty.

The court found Transfield guilty of the charge and imposed a fine of $12,500. Additionally, Transfield was ordered to pay the reasonable costs of the Prosecutor. The court also specified that certain exhibits would remain with the court file, while others could be returned. This decision underscores the need for companies to adhere strictly to environmental regulations and the consequences of failing to do so, even in relatively minor breaches.

Orders