EPA v Colenden Pty Ltd - [2007] NSWLEC 289

Land and Environment Court

of New South Wales

CITATION: EPA v Colenden Pty Ltd [2007] NSWLEC 289

PARTIES:
APPLICANT
Environment Protection Authority
RESPONDENT
Colenden Pty Ltd

FILE NUMBER(S): 50038 of 2006

CORAM: Jagot J

KEY ISSUES: Prosecution :- sentence - pollution of waters - guilty plea - first offence - penalty

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Protection of the Environment Operations Act 1997

CASES CITED: Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299;
R v Thomson (2000) 49 NSWLR 383;
The Queen v Olbrich (1999) 199 CLR 270

DATES OF HEARING: 17/5/07

DATE OF JUDGMENT:
25 May 2007

LEGAL REPRESENTATIVES:
APPLICANT
Mr E Bateman (solicitor)
SOLICITORS
Department of Environment and Climate Change NSW
RESPONDENT
Mr McCall
SOLICITORS
Bourke Love McCartney Young

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

25 May 2007

50038 of 2006

ENVIRONMENT PROTECTION AUTHORITY
Prosecutor

COLENDEN PTY LTD
Defendant
JUDGMENT

Jagot J:
A. Introduction

1 Colenden Pty Ltd (the defendant) operates a timber treatment plant at Cavanagh’s Road, Lowanna, inland from Coffs Harbour. The treatment process involves the use of copper chromium arsenate. During the evening of 30 November 2005, a buffer tank containing a mixture of copper chromium arsenate solution and rainwater ruptured. At least 1000 litres of contaminated wastewater leaked from the buffer tank. The wastewater entered a dam and samples disclosed elevated levels of arsenic, chromium and copper in a nearby creek, which was a tributary of the Little Nymboida River. The defendant has pleaded guilty to the offence of polluting waters (s 120(1) of the Protection of the Environment Operations Act 1997). I must now determine sentence.

2 The maximum penalty for the offence under s 120(1) is $250,000 (s 123(a) of the Protection of the Environment Operations Act).

B. Facts

3 Most of the facts were recorded in an agreed statement of facts.

4 The defendant carries out its activities under an environment protection licence. The licence does not contain any authorised discharge points.

5 The defendant receives cut saw logs, trims and cuts the logs into sleepers and palings, and pressure treats the sleepers and palings with a copper chromium arsenate product. Copper chromium arsenate is a hazardous substance used as a wood preservative. The treatment involves placing cut wooden palings or sleepers into a timber treatment vessel to which the copper chromium arsenate solution is added. The timber treatment vessel is then pressurised to infuse the wood with the solution.

6 The treatment activities are carried out in the treatment plant, which is contained within a roofed area surrounded by a bund. The copper chromium arsenate product is stored in a bulk concentrate tank. The product is usually mixed in a mixing tank with clean water from the main clean water tank located just outside the treatment plant. The solution is then usually placed in the working solution tank from which it can be sourced for the pressure treatment that takes place in the timber treatment…

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 EPA v Colenden Pty Ltd

Details

AGLC: EPA v Colenden Pty Ltd [2007] NSWLEC 289
Case: [2007] NSWLEC 289
Decision Date: 25 May 2007

CaseChat Overview and Summary

Colenden Pty Ltd, which operates a timber treatment plant, has pleaded guilty to an offence under the Protection of the Environment Operations Act 1997 (POEO Act) arising from the escape of contaminated wastewater from a buffer tank on its property. The Land and Environment Court was required to determine an appropriate penalty. The maximum penalty for the offence is $250,000 under s 123(a) of the POEO Act. The Court found that the potential for harm to the environment was real and not remote, but was limited by the operation of a dam on the property and the steps taken by the defendant to rectify the harm. The Court accepted that the defendant had taken appropriate steps to minimise and rectify the harm and put in place measures to prevent any repetition of the offence. The Court found the offence to be one of moderate objective seriousness, but was satisfied that the defendant’s conduct warranted a discount of 25% on account of the utilitarian value of its early guilty plea. Having regard to the circumstances, the Court imposed a penalty of $25,500, being a 25% discount on the fine of $25,500. The defendant is to pay the prosecutor’s costs as agreed in the sum of $18,000. The exhibits are to be returned.

Orders