EPA v Gilmour & Anor [No.6] - [2001] NSWLEC 257

Land and Environment Court

of New South Wales

CITATION: EPA v Gilmour & Anor [No.6] [2001] NSWLEC 257

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 - conviction - environmental harm - mitigation - penalty - costs

LEGISLATION CITED: Environmental Offences and Penalties Act 1989

CASES CITED: Axer Pty Ltd v EPA (1993) 113 LGERA 357;
EPA v Gilmour & Anor [2001] NSWLEC 123;
Morrison v Che Mat & Ors (1997) 95 LGERA 212;
R v Thomson (2000) 49 NSWLR 383

DATES OF HEARING: 24/09/2001

EX TEMPORE
JUDGMENT DATE :
09/24/2001

LEGAL REPRESENTATIVES:
PROSECUTOR
Mr T Howard (Barrister)
Ms D Buck, Solicitor for the EPA
DEFENDANT
Mr M Baird (Barrister)
Mr S Rugendyke (Solicitor)

JUDGMENT:

IN THE LAND AND Matter No: 50006-7 of 2000
ENVIRONMENT COURT Coram: Sheahan J
OF NEW SOUTH WALES 24 September 2001

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

GLENN REX GILMOUR

Defendant

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

TABLELAND TOPDRESSING PTY LTD

Defendant

JUDGMENT No.6

Introduction

1. On 15 June 2001 I published the fifth judgment in these matters – EPA v Gilmour & Anor [2001] NSWLEC 123 - in which I made the relevant findings on questions of liability, and today the defendants appear on the question of penalty. (See pars 59, 84, 86, 99 and 100 of that judgment for the relevant conclusions).

2. The facts of the matter need not be repeated; they are set out in detail in that judgment of 15 June. Suffice to say that the defendant Gilmour is a principal of, and the main pilot employed by, the corporate defendant, which was retained for a fertiliser spreading operation near the Gwydir River, and Mr Gilmour, in carrying out that operation on the company’s behalf, “allowed” some pellets of fertiliser to fall in and near the river, with the result that a small amount of phosphorus (no more than 700 grams, the evidence would suggest) was released into those waters.

3. The facts as proven constitute a breach on 17 February 1999 of the now repealed Clean Waters provisions of the regime within the Environmental Offences & Penalties Act 1989 (see pars 12-16 of the June judgment). The maximum penalty to which the company is exposed is $125,000, and the maximum to which Mr Gilmour is exposed is $60,000. Mr Baird has asked me to put Mr Gilmour on a good behaviour bond pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999.

The issues of culpability

4. There is a suggestion in the evidence now before the court that a malfunction in the doorway in the bottom of the fuselage of the defendants’ aeroplane may have caused the relevant discharge of fertiliser pellets beyond the boundaries of the area contracted to be fertilised.

5. The court accepts the witness Patton’s written and oral evidence (see Exhibit D3

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 257
Decision Date: 09/24/2001

CaseChat Overview and Summary

The Land and Environment Court of New South Wales considered the case of EPA v Gilmour & Anor [No.6], involving the Environment Protection Authority (EPA) as the prosecutor against Glenn Rex Gilmour and Tableland Topdressing Pty Ltd as defendants. The dispute centred around allegations of environmental offences, specifically pollution of waters due to aerial agricultural activities, and the subsequent conviction, environmental harm, mitigation efforts, penalty, and costs. The court had to determine the appropriate penalty for the defendants following the findings of liability made in a previous judgment.

The primary legal issues addressed by the court were the degree of culpability of the defendants and the appropriate penalty for the environmental harm caused by the release of phosphorus into the waters near the Gwydir River. The court also considered mitigating factors such as the purchase of new equipment to prevent future incidents and the defendants' lack of prior convictions. The court examined whether the offence was trivial enough to warrant a good behaviour bond for the individual defendant.

In its reasoning, the court acknowledged the possibility of a malfunction in the defendants' aeroplane contributing to the discharge but concluded that insufficient care and precautions were the primary cause. The court found that while the environmental harm was not severe, it was still significant enough to warrant a penalty. The court also noted the defendants' efforts to mitigate the risk and their lack of prior convictions but determined that these factors did not justify a trivial penalty. The court decided on fines of $6,000 each for Mr Gilmour and the company, amounting to 10% and about 5% of their respective maximum penalties.

The final orders of the court included convictions for both defendants, fines of $6,000 each, and orders for the defendants to pay the prosecutor's costs. The court also allowed the return of all exhibits.

Orders