CITATION: Environment Protection Authority v TransGrid [2003] NSWLEC 18

PARTIES:
PROSECUTOR:
Environment Protection Authority
DEFENDANT:
TransGrid

FILE NUMBER(S): 50022 of 2002; 50023 of 2002; 50024 of 2002 and 50025 of 2002

CORAM: Lloyd J

KEY ISSUES:
Environmental Offences :- water pollution - plea of guilty - penalty -aggravating factors - State owned corporation - special obligation of - non-compliance with standards and procedures - mitigating factors - rehabilitation and remediation work - totality principle inapplicable for four separate offences at four separate locations

LEGISLATION CITED: Energy Services Corporations Act 1995
Energy Services Corporations Amendment (TransGrid Corporatisation) Act 1998 s 6B
Protection of the Environment Operations Act 1997 s 120, s 123, s 241
Protection of the Environment Administration Act 1991
Rural Fires Act 1997 s 63
State Owned Corporations Act 1989 s 8

CASES CITED: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683;
Department of Land and Water Conservation v Orlando Farms Pty Ltd (1998) 99 LGERA 101;
Environment Protection Authority v Boral Resources (NSW) Pty Ltd [2002] NSWLEC 232;
Environment Protection Authority v Sydney Water Corporation [2000] NSWLEC 156;
Environment Protection Authority v Tenterfield Shire Council (2000) 112 LGERA 173; [2000] NSWLEC 229;
R v Holder [1983] 3 NSWLR 245;
R v Thomson (2000) 49 NSWLR 383;
The Queen v De Simoni (1981) 147 CLR 383

DATES OF HEARING: 18/11/2002, 19/11/2002 and 20/11/2002

DATE OF JUDGMENT:
02/13/2003

LEGAL REPRESENTATIVES:

PROSECUTOR:
Mr S J Rushton SC
SOLICITORS:
Stephen Garrett
DEFENDANT:
Mr N Hemmings QC (solicitor)
SOLICITORS:
Allens Arthur Robinson

JUDGMENT:

- 38 -

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

50022 of 2002

50023 of 2002

50024 of 2002

50025 of 2002

Lloyd J

13 February 2003

Environment Protection Authority

Prosecutor

TransGrid

Defendant

JUDGMENT

Introduction

1 The defendant pleaded guilty to four offences against s 120 of the Protection of the Environment Operations Act 1997 (“PEO Act”) in that it caused waters to be polluted. That section headed “Prohibition of pollution of waters” provides as follows:

(1) A person who pollutes any waters is guilty of an offence.

(2) In this section:

pollute waters

includes cause or permit any waters to be polluted.

2 The summonses allege offences against s 120(2) of the PEO Act. This appears to be a misnomer. There is no offence created by s 120(2). The offence is created by s 120(1). Section 120(2) is merely a definition of the word “pollute”: see Environmental Protection Authority v Boral Resources (NSW) Pty Ltd [2002] NSWLEC 232 at [3]. The defendant, however, has not taken the point and wishes to have the matters disposed of by way of pleas of guilty.

3 The maximum penalty for the offence in the case of a corporation is $250,000 and in the case of an individual is $120,000 (s 123 of the PEO Act).

4 The relevant facts which gave rise to the commission of the…

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.

Continue reading Environment Protection Authority v Transgrid

Details

AGLC: Environment Protection Authority v Transgrid [2003] NSWLEC 18
Case: [2003] NSWLEC 18
Decision Date: 02/13/2003

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the Environment Protection Authority prosecuted TransGrid for four offences of water pollution under section 120 of the Protection of the Environment Operations Act 1997. The defendant pleaded guilty to all charges. The court had to consider the extent of the harm caused, the steps taken to prevent, control, abate or mitigate that harm, the foreseeability of the harm, and other relevant considerations such as the defendant’s status as a State-owned corporation and its special obligation to comply with environmental laws. The court also had to decide whether the principle of totality should apply to the four separate offences. The court found that while the potential harm was significant, the rehabilitation efforts undertaken by the defendant had considerably mitigated the actual harm. It also found that the principle of totality did not apply to these offences as they were separate and distinct. The court imposed a penalty of $20,000 in each case, discounted by 20% for the early pleas of guilty, and ordered the defendant to pay the prosecutor’s costs of $12,500 in each case.

Orders