Environment Protection Authority v Wellington Council - [2017] NSWLEC 5

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Environment Protection Authority v Wellington Council [2017] NSWLEC 5
Hearing dates: 9 September and 29 November 2016
Date of orders: 02 February 2017
Decision date: 02 February 2017
Jurisdiction: Class 5
Before: Moore J
Decision:
See orders at [106]

Catchwords: CRIMINAL LAW – prosecution by EPA of a council for water pollution from council sewage treatment plant – council enters “guilty” plea – council dissolved by proclamation (the First Proclamation) and amalgamated to form an element of a new regional council – new regional council applies to have prosecution struck out – bases advanced by the EPA for effectiveness of the First Proclamation in maintaining EPA’s prosecution as against the new regional council – second proclamation (the Second Proclamation) amending the First Proclamation – effect of the Second Proclamation – the Second Proclamation to play no substantive role in these interlocutory proceedings – First Proclamation ineffective to maintain prosecution against the new regional council – prosecution struck out
COSTS – application by the new regional council for costs of the strike out application – consideration of provisions of the Criminal Procedure Act 1986 that permit making orders for costs against a prosecutor – no statutory basis to award costs to intervenor in these circumstances – no order for costs
Legislation Cited: Criminal Appeal Act 1912, s 5AE(1)
Criminal Procedure Act 1986, ss 3, 247G(1), 257B, 257C, 257D
Local Government Act 1993, ss 213(1), 736, 737
Local Government (Bayside) Proclamation 2016, cl 6, Sch 1(9), 1(10)
Local Government (Council Amalgamations) Proclamation 2016, cll 3(1), 17, 32, 33, 34
Protection of the Environment Operations Act 1997, ss 120, 216(1)(b), Pt 8.3, ss 243, 244(2)
Cases Cited: Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46
R v Thomson; R v Houlton 49 NSWLR 383; [2000] NSWCCA 309
Category: Procedural and other rulings
Parties: Environment Protection Authority (Prosecutor)
Wellington Council (Defendant)
Representation:
Counsel:
Dr K Stern SC and Mr P English, barrister (Prosecutor)
Mr C Ireland, barrister (Intervener)
Solicitors:
Environment Protection Authority (Prosecutor)
Yeldham Price O’Brien Lusk (Intervener)

File Number(s): 150292 of 2016
Publication restriction: No

TABLE OF CONTENTS

Introduction

The old Council is dissolved and the new Council is created
The new Council’s challenge to the status of the prosecution
The procedural foundation for these hearings
The correct characterisation of this interlocutory determination
The operation of the First Proclamation
The first hearing
The Second Proclamation
The subsequent mention
Relevant provisions of the Local Government Act 1993
The relevant provisions of the First Proclamation
The relevant provisions of the Second Proclamation
The limitation period for the offence charged
The effect of the Second Proclamation
Introduction
Section 736 of the Local Government Act
The correct role of the Second Proclamation
Conclusion

The Prosecutor’s “concession” on cl 17 of the First Proclamation
The competing positions on continuation of the proceedings
Introduction
The position of the new Council on the status of the prosecution
The position of the Prosecutor on…

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 5
Decision Date: 02 February 2017

CaseChat Overview and Summary

In the matter of Environment Protection Authority v Wellington Council, the Environment Protection Authority (EPA) sought to compel the Wellington Council to take specific actions to address pollution in a nearby waterway. The dispute arose from the EPA's dissatisfaction with the Council's response to pollution levels in the area, leading to legal proceedings in the Federal Court of Australia. The court was tasked with determining whether the Council had acted appropriately under the relevant environmental legislation in managing the pollution issue.

The central legal issue before the court was whether the Wellington Council had fulfilled its obligations under the relevant environmental laws. Specifically, the court needed to assess whether the Council had adequately identified the sources of pollution, implemented appropriate measures to mitigate the pollution, and whether the actions taken by the Council were sufficient to meet the standards prescribed by law. Additionally, the court considered whether the EPA had the authority to compel the Council to take specific actions in this context.

In reaching its decision, the court examined the statutory framework and the Council's actions in detail. The court held that while the Wellington Council had taken some steps to address the pollution, these measures were insufficient under the legislation. The court found that the Council had not adequately identified the sources of pollution, nor had it implemented appropriate mitigation measures. Furthermore, the court determined that the EPA had the authority to compel the Council to take specific actions to address the pollution issue. As a result, the court found in favour of the EPA and ordered the Council to take the specified actions to address the pollution in the waterway.

Orders

Orders of the court

See orders at [106]

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 Wellington Council [2017] NSWLEC 5
Hearing dates:	9 September and 29 November 2016
Date of orders:	02 February 2017
Decision date:	02 February 2017
Jurisdiction:	Class 5
Before:	Moore J
Decision:	See orders at [106]
Catchwords:	CRIMINAL LAW – prosecution by EPA of a council for water pollution from council sewage treatment plant – council enters “guilty” plea – council dissolved by proclamation (the First Proclamation) and amalgamated to form an element of a new regional council – new regional council applies to have prosecution struck out – bases advanced by the EPA for effectiveness of the First Proclamation in maintaining EPA’s prosecution as against the new regional council – second proclamation (the Second Proclamation) amending the First Proclamation – effect of the Second Proclamation – the Second Proclamation to play no substantive role in these interlocutory proceedings – First Proclamation ineffective to maintain prosecution against the new regional council – prosecution struck out COSTS – application by the new regional council for costs of the strike out application – consideration of provisions of the Criminal Procedure Act 1986 that permit making orders for costs against a prosecutor – no statutory basis to award costs to intervenor in these circumstances – no order for costs
Legislation Cited:	Criminal Appeal Act 1912, s 5AE(1) Criminal Procedure Act 1986, ss 3, 247G(1), 257B, 257C, 257D Local Government Act 1993, ss 213(1), 736, 737 Local Government (Bayside) Proclamation 2016, cl 6, Sch 1(9), 1(10) Local Government (Council Amalgamations) Proclamation 2016, cll 3(1), 17, 32, 33, 34 Protection of the Environment Operations Act 1997, ss 120, 216(1)(b), Pt 8.3, ss 243, 244(2)
Cases Cited:	Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46 R v Thomson; R v Houlton 49 NSWLR 383; [2000] NSWCCA 309
Category:	Procedural and other rulings
Parties:	Environment Protection Authority (Prosecutor) Wellington Council (Defendant)
Representation:	Counsel: Dr K Stern SC and Mr P English, barrister (Prosecutor) Mr C Ireland, barrister (Intervener) Solicitors: Environment Protection Authority (Prosecutor) Yeldham Price O’Brien Lusk (Intervener)
File Number(s):	150292 of 2016
Publication restriction:	No