CITATION: EPA v Waight [No 3] [2001] NSWLEC 126

PARTIES: PROSECUTOR
Environment Protection Authority
DEFENDANT
Michael Jeffrey Waight

FILE NUMBER(S): 50019; 50020; 50021; 50022 of 1999

CORAM: Sheahan J

KEY ISSUES: Environmental Offences :- Tier 1 - collapse of embankment - negligence - waste - lawful authority - environmental harm - foreseeability - pleas of guilty - aggravation and mitigation - sentencing principles - remediation orders - prosecutor's costs

LEGISLATION CITED: Clean Waters Act 1970
Crimes (Sentencing Procedure) Act 1999
Environmental Planning and Assessment Act 1979
Environmental Offences and Penalties Act 1989
Fines Act 1996
Pollution Control Act 1970
Protection of the Environment Operations Act 1997
Waste Minimisation and Management Act 1995
Baulkham Hills LEP 1991

CASES CITED: Brown v EPA & Anor (No.2) (1992) 78 LGERA 119;
Byron Shire Council v Wain & Anor [1999] NSWLEC 13;
Camilleri Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683;
Cobic v Liddey (1969) 119 CLR 257;
CSR Ltd v EPA [2000] NSWCCA 373;
EPA v ADI Pty Ltd [1999] NSWLEC 14;
EPA v Ampol Ltd (1993) 81 LGERA 433;
EPA v Daracon Engineering Pty Ltd (1998) 97 LGERA 415;
EPA v Baiada Poultry Pty Ltd [2000] NSWLEC 249;
EPA v Forestry Commission [1998] NSWLEC 318;
EPA v Gadiner 50072 and 50074 of 1996;
EPA v Gardiner [1997] NSWLEC 169;
EPA v N (1992) 26 NSWLR 352;
Gilmour v DPP (1995) 134 ALR 631;
Hoare v The Queen (1989) 167 CLR 348;
Holroyd City Council v Murdoch (1994) 82 LGERA 197;
Ibbs v The Queen (1987) 163 CLR 447;
Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132;
NSW Sugar Milling Cooperative Ltd v EPA (1992) 59 A.Crim.R6;
O'Leary v The King (1946) 73 CLR 566;
Pearce v The Queen (1998) 194 CLR 610;
Royall v The Queen (1991) 172 CLR 378;
R v Boyd [1975] VR 168;
R v Boxtel [1994] 2 VR 98;
R v De Simoni (1981) 147 CLR 383;
R v Gray [1997] VR 225;
R v Holder [1983] 3 NSWLR 245;
R v Olbrich (1999) 199 CLR 270;
R v Storey [1998] 1 VR 359;
R v Thompson (2000) 49 NSWLR 383;
Shire of Wyong v Shirt (1979) 146 CLR 40;
Smith v The Queen (1991) 25 NSWLR 1;
Zanol v Newtown (1974) 10 SASR 199;
Veen v The Queen (No.2) 164 CLR 465

DATES OF HEARING: 16/10/2000-17/10/2000, 24/10/2000-26/10/2000, 30/10/2000-3/11/2000, 6/11/2000-10/11/2000, 13/11/2000-17/11/2000, 20/11/2000 (Site Inspection], 29/01/2001, 9/02/2001, 12/03/2001

DATE OF JUDGMENT:
06/22/2001

LEGAL REPRESENTATIVES:
PROSECUTOR
Mr D Buchanan SC with Mr D J Galpin
Solicitors
Environment Protection Authority
DEFENDANT
16/10/2000-17/11/2000
Mr B Preston SC with Dr S Pritchard
Solicitors
Heidtman & Co
On 29/01/2001 Mr Waight - in person
On 9/02/2001 and 12/03/2001
Mr J Laucis, Barrister
Solicitors Nil

JUDGMENT:

IN THE LAND AND Matter Nos: 50019, 50020, ENVIRONMENT COURT…

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 Waight [No 3]

Details

AGLC: EPA v Waight [No 3] [2001] NSWLEC 126
Case: [2001] NSWLEC 126
Decision Date: 06/22/2001

CaseChat Overview and Summary

In the case of EPA v Waight [No 3], the Land and Environment Court of New South Wales dealt with two serious criminal charges against Michael Jeffrey Waight, arising from environmental offences related to the construction and collapse of an embankment on his property. The charges involved the disposal of waste without lawful authority and the negligent cause of a substance to escape, both resulting in environmental harm. The court accepted late pleas of guilty from Waight to the two Tier 1 offences, while the two Tier 2 "backup" charges were not proceeded with.

The court considered various legal issues, including the extent of harm caused to the environment, the foreseeability of the harm, Waight's control over the causes leading to the offence, and whether he was complying with orders from an employer or a supervising employee. The court also examined the principles of proportionality and totality in determining an appropriate penalty for the offences.

After considering the objective seriousness of the offences, the court found several mitigating circumstances, such as Waight's plea of guilty, remorse, and efforts to remedy the environmental harm. The court also took into account Waight's personal circumstances, including his health issues and financial situation.

Ultimately, the court decided that a substantial fine was the appropriate penalty, considering the proportionality and totality principles. Waight was ordered to pay a fine of $30,000 for the first offence and $120,000 for the second offence, along with the reasonable costs of the prosecutor. The court also made remediation orders to address the environmental harm caused by the defendant's actions.

Orders