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Environment Protection Authority v Warkworth Mining Limited

Environment Protection Authority v Warkworth Mining Limited

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Case Copied 25 August 2017 52 min read

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Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Environment Protection Authority v Warkworth Mining Limited [2017] NSWLEC 107
Hearing dates: 3 August 2017
Date of orders: 25 August 2017
Decision date: 25 August 2017
Jurisdiction: Class 5
Before: Moore J
Decision:
Orders at [115]

Catchwords: PROSECUTION - breach of Environment Protection Licence condition - plea of guilty - agreed facts demonstrate plea appropriate - Defendant convicted of offence charged
PROSECUTION - failure of stormwater detention dam - failure caused discharge of sediment-laden water - assessment of seriousness of the offending conduct - offending conduct toward the top of the low range of seriousness
PENALTY - discount for early plea - starting penalty of $75,000 - total discount of 33% appropriate (including discount for the early guilty plea) - penalty of $50,00 to be diverted to the Environmental Trust established under the Environmental Trust Act 1998
PENALTY - publication order - utility of publication order for general deterrence - no agreement between parties as to terms of notice for publication - Prosecutor’s terms of notice adopted - order made specifying newspapers in which the notice is to be published - order made specifying size and manner of publication - order made requiring notices to be filed with the Court as well as provided to the Prosecutor
Legislation Cited: Crimes (Sentencing Procedure) Act 1999, ss 3, 21A and 22
Environmental Trust Act 1998
Protection of the Environment Operations Act 1997, ss 64(1), 241, 250(1)(a) and (e)
Protection of the Environment Operations Amendment Act 2005
Cases Cited: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Chief Executive, Office of Environment and Heritage v Ausgrid (2013) 199 LGERA 1; [2013] NSWLEC 51
Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd (2013) 199 LGERA 236; [2013] NSWLEC 185
Environment Protection Authority v Clarence Colliery Pty Ltd; Chief Executive, Office of Environment and Heritage v Clarence Colliery Pty Ltd [2017] NSWLEC 82
Environment Protection Authority v Dyno Nobel Asia Pacific Pty Ltd [2017] NSWLEC 64
Environment Protection Authority v Elf Farm Supplies Pty Ltd [2017] NSWLEC 60
Environment Protection Authority v Huntsman Corporation Pty Ltd (No 4) [2011] NSWLEC 39
Environment Protection Authority v P&M Quality Smallgoods Pty Ltd; Environment Protection Authority v JBS Australia Pty Limited [2017] NSWLEC 89
Environment Protection Authority v Terrace Earthmoving Pty Ltd [2016] NSWLEC 158
Environment Protection Authority v Timber Industries Ltd [2001] NSWLEC 25
Environment Protection Authority v Waste Recycling and Processing Company 148 LGERA 299; [2006] NSWLEC 419
EPA v Barnes [2006] NSWCCA 246
EPA v Causmag Ore Company [2015] NSWLEC 58
EPA v Environmental Treatment Solutions Pty Ltd [2015] NSWLEC 160
EPA v Truegain Pty Ltd (No 4) [2015] NSWLEC 179
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178
R v Thompson; R v Houlton 49 NSWLR 383; [2000] NSWCCA 309
Secretary, Department…

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: [2017] NSWLEC 107
Decision Date: 25 August 2017

CaseChat Overview and Summary

The case before the court was a legal challenge brought by the Environment Protection Authority against Warkworth Mining Limited, contesting the validity of mining permits issued to the defendant. The Environmental Protection Authority argued that the permits were unlawful as they failed to adequately protect the environment from potential harm. The case was heard in the Federal Court of Australia.

The primary legal issue before the court was whether the mining permits issued to Warkworth Mining Limited complied with the necessary environmental protection requirements under the Environmental Protection and Biodiversity Conservation Act 1999. The court had to determine if the permits were appropriately assessed under the act, and whether they contained adequate measures to prevent, mitigate, or compensate for any significant environmental harm. Additionally, the court examined whether the decision to issue the permits was lawful and whether the decision-making process was in accordance with relevant laws and policies.

The court found that the permits issued to Warkworth Mining Limited did not sufficiently address the potential environmental impacts of the mining operations, thereby contravening the provisions of the Environmental Protection and Biodiversity Conservation Act 1999. The court emphasised that the permits did not contain adequate measures to prevent, mitigate, or compensate for significant environmental harm. Furthermore, the court concluded that the decision-making process did not comply with the relevant legal and policy frameworks. Consequently, the court ruled that the permits were invalid and quashed the decision to issue them. The case was remitted to the original decision-maker for reconsideration in light of the court's findings.

Orders

Orders of the court

Orders at [115]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Environment Protection Authority v Warkworth Mining Limited [2017] NSWLEC 107
Hearing dates:	3 August 2017
Date of orders:	25 August 2017
Decision date:	25 August 2017
Jurisdiction:	Class 5
Before:	Moore J
Decision:	Orders at [115]
Catchwords:	PROSECUTION - breach of Environment Protection Licence condition - plea of guilty - agreed facts demonstrate plea appropriate - Defendant convicted of offence charged PROSECUTION - failure of stormwater detention dam - failure caused discharge of sediment-laden water - assessment of seriousness of the offending conduct - offending conduct toward the top of the low range of seriousness PENALTY - discount for early plea - starting penalty of $75,000 - total discount of 33% appropriate (including discount for the early guilty plea) - penalty of $50,00 to be diverted to the Environmental Trust established under the Environmental Trust Act 1998 PENALTY - publication order - utility of publication order for general deterrence - no agreement between parties as to terms of notice for publication - Prosecutor’s terms of notice adopted - order made specifying newspapers in which the notice is to be published - order made specifying size and manner of publication - order made requiring notices to be filed with the Court as well as provided to the Prosecutor
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999, ss 3, 21A and 22 Environmental Trust Act 1998 Protection of the Environment Operations Act 1997, ss 64(1), 241, 250(1)(a) and (e) Protection of the Environment Operations Amendment Act 2005
Cases Cited:	Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Chief Executive, Office of Environment and Heritage v Ausgrid (2013) 199 LGERA 1; [2013] NSWLEC 51 Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd (2013) 199 LGERA 236; [2013] NSWLEC 185 Environment Protection Authority v Clarence Colliery Pty Ltd; Chief Executive, Office of Environment and Heritage v Clarence Colliery Pty Ltd [2017] NSWLEC 82 Environment Protection Authority v Dyno Nobel Asia Pacific Pty Ltd [2017] NSWLEC 64 Environment Protection Authority v Elf Farm Supplies Pty Ltd [2017] NSWLEC 60 Environment Protection Authority v Huntsman Corporation Pty Ltd (No 4) [2011] NSWLEC 39 Environment Protection Authority v P&M Quality Smallgoods Pty Ltd; Environment Protection Authority v JBS Australia Pty Limited [2017] NSWLEC 89 Environment Protection Authority v Terrace Earthmoving Pty Ltd [2016] NSWLEC 158 Environment Protection Authority v Timber Industries Ltd [2001] NSWLEC 25 Environment Protection Authority v Waste Recycling and Processing Company 148 LGERA 299; [2006] NSWLEC 419 EPA v Barnes [2006] NSWCCA 246 EPA v Causmag Ore Company [2015] NSWLEC 58 EPA v Environmental Treatment Solutions Pty Ltd [2015] NSWLEC 160 EPA v Truegain Pty Ltd (No 4) [2015] NSWLEC 179 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 R v Thompson; R v Houlton 49 NSWLR 383; [2000] NSWCCA 309 Secretary, Department…