EPA v Gilmour & Anor [No.5] - [2001] NSWLEC 123

Land and Environment Court

of New South Wales

CITATION: EPA v Gilmour & Anor [No.5] [2001] NSWLEC 123

PARTIES: PROSECUTOR
Environment Protection Authority
DEFENDANT
Glenn Rex Gilmour
PROSECUTOR
Environment Protection Authority
DEFENDANT
Tableland Topdressing Pty Ltd

FILE NUMBER(S): 50006; 50007 of 2000

CORAM: Sheahan J

KEY ISSUES: Environmental Offences :- pollution of waters - aerial agriculture - pleas of not guilty - identification of pilot - act of pollution - reliability of test results

LEGISLATION CITED: Clean Waters Act 1970
Clean Waters Regulations 1972
Evidence Act 1995
Protection of the Environment Operations Act 1997

CASES CITED: Azzopardi v The Queen [2001] HCA 25;
EPA v Multiplex [2000] NSWLEC 6;
EPA v Taylor Woodrow (1997) 101 LGERA 226;
RPS v The Queen (2000) 199 CLR 620;
Shepherd v The Queen 91990) 170 CLR 573;
Weissensteiner v The Queen (1993) 178 CLR 217

DATES OF HEARING: 5/12/2000-6/12/2000; 8/12/2000; 14/12/2000-15/12/2000; 21/12/2000-22/12/2000; 30/1/2001-31/01/2001; 06/06/2001

DATE OF JUDGMENT:
06/15/2001

LEGAL REPRESENTATIVES:
PROSECUTOR
Barrister
Mr T Howard
Solicitor
Solicitor for Environment Protection Authority
DEFENDANT
Barrister
Mr M Baird with Mr M Johnson
Solicitor
Mr S Rugendyke

JUDGMENT:

IN THE LAND AND Matter No: 50006-7 of 1999
ENVIRONMENT COURT Coram: Sheahan J
OF NEW SOUTH WALES 15 June 2001

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

GLENN REX GILMOUR

Defendant

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

TABLELAND TOPDRESSING PTY LTD

Defendant

JUDGMENT

Introduction

1. These two cases are being heard together and concern alleged pollution of waters, contrary to the Clean Waters Act 1970 (“the CW Act”), near Yarrowyck, on the northern tablelands of NSW, about 40km from Armidale, and 25km from Uralla, on or about 17 February 1999.

2. The purpose of this judgment, the fifth written judgment delivered so far in the proceedings, and my fourth, is to make relevant findings on the evidence.

3. The prosecutor alleges that, in the period Monday 15 to Wednesday 17 February 1999, the defendant Gilmour, on behalf of the defendant company, applied fertiliser from a light plane, registered call-sign VH-CCH, to the paddocks of the rural property “Myanbah”, near the Gwydir River, and that, on Wednesday 17 February 1999, during the course of the aerial application of fertiliser, pellets of fertiliser, dropped from the plane, entered the river, and landed immediately adjacent to it, thereby polluting it, in breach of s 16(1) of the CW Act.

4. The summonses in both matters provide the following “particulars of charge”:

WATERS:
Gwydir River
POLLUTANT
Fertilizer pellets

5. The summonses were issued on 16 February 2000, and both defendants entered pleas of “not guilty” on 26 April 2000.

6. There is no contest about the defendant company’s ownership of the relevant plane. The defendant Gilmour, and his wife Bridget Mary Gilmour, had been, since 1991, and were at the relevant time, the only shareholders and directors of the defendant company (Exhibit P1), and both are employed by it, the defendant Gilmour as a pilot.

7. “Myanbah

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 123
Decision Date: 06/15/2001

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the Environment Protection Authority (EPA) prosecuted Glenn Rex Gilmour and Tableland Topdressing Pty Ltd for allegedly polluting waters in breach of the Clean Waters Act 1970. The alleged offence occurred on 17 February 1999, when fertiliser pellets were dropped from a plane into the Gwydir River, near Yarrowyck. The court had to determine whether the defendants were responsible for the pollution and whether the act constituted an offence under the Act. The court concluded that the pellets dropped from the plane belonged to the defendant company and were likely to have caused the pollution. The company was vicariously liable for the actions of its employee, Gilmour, who was identified as the pilot of the plane. The court found that Gilmour was the pilot on the day of the alleged offence, despite his failure to give evidence. The court held that the offences charged against both defendants were proven beyond reasonable doubt. The matters were stood over for further directions.

Orders