EPA v Waight [No 3] - [2001] NSWLEC 126

Land and Environment Court

of New South Wales

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 50021 and 50022 of 1999
OF NEW SOUTH WALES Coram: Sheahan J
22 June 2001

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

MICHAEL JEFFREY WAIGHT

Defendant

JUDGMENT

Introduction

1. This judgment concerns two serious criminal charges to which the defendant lodged late pleas of guilty. Two “backup” charges have not been proceeded with.

2. The main function of the court in this judgment is to deal with questions of conviction and appropriate penalty. In this regard, counsel for the defendant (Mr Preston SC) conceded that this was not an appropriate case for the exercise of the court’s discretion under s 10 of the Crimes (Sentencing Procedure) Act 1999 (T1224), and counsel for the prosecutor (Mr Buchanan SC) consistently argued that a term of imprisonment was the only appropriate sentence to impose in this case (T1284 L42-3).

3. On or about 18-19 May 1998, one or more large rain events, or storms, in the Glenorie/Forest Glen area north-west of Sydney, struck a partially completed enlargement of an embankment, on the downstream side of an earthen farm dam, at the top of a gully, on a property owned by the defendant Waight and his wife.

4. Material came away from the “soil and rubble” embankment, and/or associated structure(s), and was deposited on the land, and in a “creek”, below. There are conflicting theories as to the engineering detail of such “collapse” - turning largely on whether it was the face of the “batter”, or the base or “toe” of the embankment, or a combination of the two, which actually came away, and/or caused the deposit below. There is also a dispute between the parties to the proceedings as to the true nature of the dam enlargement project.

5. Some fairly prompt remediation works were undertaken, mainly mechanical and manual removal of materials from the “creek”, but these also caused some disturbance of the “creek” and its environs.

6. The dam, the embankment works, and the creek below were all on Waight’s land, and he was in charge of the works, which were the subject of, firstly, a development consent (“DC”) from Baulkham Hill Shire Council (“BHSC”), and, later, some consent orders made in class 4 proceedings in this court (matter 40176 of 1995), which amended the terms of the DC.

The passage of the proceedings

7. Waight has remained on bail throughout the hearing and consideration of the matter, following orders made by Talbot J on 20 May 1999.

8. After 20 hearing days, over 5 weeks between 16 October and 17 November 2000, I had the benefit of a comprehensive site inspection on Monday 20 November 2000, and detailed written submissions. During the hearing counsel provided also some valuable “aide-memoires” to assist me in finding my way through, and evaluating, the enormous amount of material in evidence.

9. On 16 November 2000, the day upon which he made his oral submissions, the prosecutor had filed Notice of Motion seeking, pursuant to s 14 of the Environmental Offences and Penalties Act 1989 (“EOPA”), detailed and particular orders for remediation works (“s 14 orders”) to be performed by the defendant. When the hearing concluded on 17 November 2000, I adjourned the matter to Friday 9 February 2001 for the delivery of judgment, and I stood that Notice of Motion over for hearing on a date to be fixed, after 1 December 2000, granting leave for the parties to notify the Registrar of any agreement reached between them on the form of such s 14 orders.

10. On 17 January 2001 the prosecutor advised the Registrar that agreement had not been reached regarding the s 14 orders, and arrangements were made for the matter to be relisted before me on 29 January 2001.

11. On 24 January 2001 Waight’s solicitor on the record filed a notice of ceasing to act, and Mr Waight represented himself on 29 January. Confronted by the tender of some documentation he steadfastly maintained he had not seen beforehand, regarding the negotiations his former solicitor had had with the prosecutor regarding the s 14 orders, Waight asked for an adjournment, and the matter was stood over to 9 February 2001. On that occasion Mr Laucis of counsel appeared for Waight on a “pro bono” basis. Having just come into the matter, he sought a further adjournment to prepare submissions, and an alternative set of draft s14 orders, in response to the EPA’s Notice of Motion, and the matter was again adjourned, to 12 March 2001.

12. On 12 March 2001 further evidence was presented, relevant to the s 14 matters, and judgment was again reserved, but no date was fixed.

The charges in brief

13. On 8 April 1999 Waight was charged with four offences arising out of these and relevant preceding events. Two of the charges were tier 1, and the other two tier 2, under the EOPA.

14. Waight entered and maintained pleas of not guilty to all four charges until the scheduled commencement of their defended trial on Monday 16 October 2000, but on that date he entered, and the court later accepted, pleas of guilty in the two Tier 1 matters, Nos. 50019 and 50020 of 1999, respectively charges under s 5 and s 6 of the EOPA.

15. Matter 50019 refers to environmental harm caused by the actual construction of the embankment, up until and including 18 May 1998, and 50020 refers to environmental harm which flowed from its collapse on or immediately after 18 May 1998.

16. In 50019 the actual charge is that:

Between about 1 August 1997 and about 18 May 1998 , at or near Lot 204, Old Northern Road, Glenorie in the State of New South Wales, he committed an offence … in that without lawful authority he negligently disposed of waste in a manner that harmed the environment, in contravention of section 5(1) of the EOPA . (emphasis added).
(1 August 1997 was nominated because the moratorium on the need to have various Waste Act licences expired 31 July 1997).

17. In 50020 the actual charge is that:

Between about 1 October 1997 and about 19 May 1998 , at or near Lot 204, Old Northern Road, Glenorie in the State of New South Wales, he committed an offence … in that without lawful authority he negligently caused a substance to escape in a manner which harmed the environment , in contravention of section 6(1) of the EOPA . (emphasis added).
(1 October 1997 was nominated because an important geotechnical inspection of the subject earthworks took place on 30 September 1997).

18. Although the defendant pleaded guilty to the two tier 1 offences, no agreement could be reached on the relevant facts, and virtually every aspect of the prosecutor’s case on penalty was contested by the defence.

19. The guilty pleas represent admissions of every element of each of the two tier 1 offences charged, namely lack of lawful authority, criminal negligence, and the fact of harm to the environment, but not admissions of each and every particular of each charge.

20. The summonses in matters 50019 and 50020 also sought orders for costs, and such orders pursuant to s 14 of the EOPA (i.e. remediation orders) “as the court in its discretion sees fit to make”.

21. The defendant maintained his pleas of “not guilty” to the two tier 2 “back-up” charges, which have not been proceeded with, and no order for the prosecutor’s costs in regard to them has been sought. Those matters, 50021 and 50022 of 1999, respectively involved charges of:

(i) occupying a “ controlled waste facility ” without a licence, daily on and from about 4 November 1997 until about 18 May 1998, and
(ii) polluting “ clean waters ”, namely Little Cattai Creek, on or between 18-19 May 1998.

22. Key dates relevant to the charges

October 1977 Waight and his wife purchase the subject property.
10 November 1994 Waight first consults psychiatrist, Dr Graham Altman.
30 November 1994 BHSC issues a notice to Waight regarding his alleged use of unauthorised fill on the subject property.
16 December 1994 Waight lodges a development application (“ DA ”), and then negotiates with Council during January 1995.
24 February 1995 BHSC grants development consent for “ dam enlargement ”, on conditions.
29 September 1995 BHSC commences class 4 proceedings (matter No.40176 of 1995) against Waight and his wife, and obtains an interlocutory injunction restraining further work on Waight’s project.
13 February 1996 Waight gives undertakings to the court that he will receive no more fill and will perform some remedial work.
12 August 1996 BHSC and Waight agree upon consent orders , which are then made by Talbot J, requiring the project to be completed within three years under expert supervision.
30 July 1997 Moratorium on need for Waste Act licences expires.
4 November 1997 EPA officers learn of the landfill/dam enlargement operation.
8 May 1998 Council issues an order to Waight to “ stop work ”, pending a geotechnical appraisal of progress with the enlargement of the dam wall.
15 May 1998 EPA serves a notice requiring Waight to cease receiving waste.
18-19 May 1998 Serious rainfall event results in partial collapse of the dam wall .
29 May 1998 EPA executes a search warrant at Waight’s home.
31 August 1998 EPA gives Waight a notice under s 65(1) of the Waste Minimisation and Management Act 1995 (“ Waste Act ”).
March 1999 The supervised construction works are completed.
1 April 1999 EPA gives Waight a notice under s 27A of the Clean Waters Act 1970 (“ CW Act ”).
8 April 1999 These charges are laid.
11 August 2000 Waight and his wife sell the subject property.

The particulars given to support the Tier 1 charges

23. The summons in 50019, to which I will refer as the “negligent construction” charge, includes the following particulars:

Particulars of waste
(a) Refuse from building or demolition work, including whole and broken bricks, soil, sand, broken cured concrete, concrete blocks, road base, bitumen, timber, reinforcing steel, glass fragments, leaves, seeds, unformed wood and plastic;
(b) Garbage, including concrete blocks, steel drums, plastic, polystyrene foam, discarded clothing and beer cans;
(c) The materials in (a) and/or (b), or any of them, that were discarded, rejected, unwanted, surplus and/or abandoned substances; and, or in the alternative,
(d) The materials in (a) and/or (b), or any of them, or any of them in combination, that were deposited in the environment (a bushland gully north-east of an unnamed, west and south-west flowing tributary of Little Cattai Creek, Lot 204 and the tributary) in such volume, and/or constituency, and/or manner as to cause an alteration to that environment.

Particulars of manner
(a) Causing or permitting the tipping of waste from trucks on Lot 204, including:
(i) into the bushland gully on the property;
(ii) in positions where the waste rolled, seeped, leached, or was otherwise introduced into the unnamed tributary of Little Cattai Creek flowing at the base of the bushland gully; and, or in the alternative,
(b) Causing or permitting waste tipped from trucks on Lot 204, to be pushed over the crest of the bushland gully, so that it rolled down the gully and in some cases entered the unnamed tributary of Little Cattai Creek.
Particulars of harm to the environment
(a) Placing or otherwise introducing matter onto Lot 204, in the bushland gully and its surrounds, causing direct and/or indirect alteration of the environment, with the effect of degrading it, including by:
(i) smothering and killing vegetation;
(ii) modifying and destroying habitat for fauna;
(iii) changing the appearance of the bushland gully and its surrounds, namely from a naturally vegetated landscape to a filled landscape;
(iv) introducing offensive smells, namely a hydrocarbon smell and an organic composting type odour; and, or in the alternative,
(v) causing or facilitating the termination of weed species;
(b) Causing the emission into the air of odours, namely a hydrocarbon smell and an organic composting type odour;
(c) Placing or otherwise introducing matter into the waters of an unnamed tributary of Little Cattai Creek:
(i) so that the physical, the chemical and, or in the alternative, the biological condition of the waters was changed;
(ii) so that the physical, the chemical and, or in the alternative, the biological condition of the waters was changed with the effect of degrading the environment;
(iii) so that the change in the condition of the waters made or was likely to make the waters unclean, noxious, poisonous or impure, poisonous to aquatic life, or animals in or around the waters;
(iv) that was of a prescribed nature, namely inorganic matter, including soil, earth, mud, stones and sand; and, or in the alternative,
(v) that was of a prescribed nature, namely scrap metal, glass, junk, plastics, and, or in the alternative, rubbish;
(d) Placing or otherwise introducing matter into the waters of an unnamed tributary of Little Cattai Creek causing direct or indirect alteration of the environment, with the effect of degrading it, including by
(i) modifying and destroying habitat for fauna;
(ii) causing or facilitating the germination of weed species;
(iii) changing the appearance of the creek, namely from a natural creek to a creek containing the matter; and, or in the alternative,
(iv) introducing offensive odours in the creek, namely the smell of hydrocarbons;
(e) Placing or otherwise introducing matter into the surrounds of an unnamed tributary of Little Cattai Creek causing direct or indirect alteration of the environment, with the effect of degrading it, by causing or facilitating the germination of exotic plant species; and, or in the alternative,
(f) Placing or otherwise introducing matter into the bushland gully, the unnamed tributary of Little Cattai Creek and/or their surrounds causing direct or indirect alteration to the environment, with the effect of degrading it, by adversely affecting its heritage values.
Particulars of matter
See particulars of “Waste” above.
Particulars of negligence
(a) Disposal of the waste without any or any adequate sediment controls;
(b) Disposal of the waste particularised in the manner particularised;
(c) Disposal of the waste particularised in such a manner (namely the manner particularised) that a reasonable person in the position of the Defendant could have foreseen that it would be likely to harm the environment (in the ways particularised); and, or in the alternative,
(d) Disposal of the waste particularised in the manner particularised and, in particular, in a landfill of large size in close proximity to a watercourse, namely the unnamed tributary of Little Cattai Creek.

24. The summons in 50020, to which I will refer as the “negligent escape” charge, includes the following particulars:

Particulars of substance
(a) Refuse from building or demolition work, including whole and broken bricks, soil, sand, broken cured concrete, concrete blocks, road base, bitumen, timber, reinforcing steel, glass fragments, leaves, seeds, unformed wood and plastic; and, or in the alternative
(b) Garbage, including concrete blocks, steel drums, plastic, polystyrene foam, discarded clothing and beer cans;
Particulars of manner
A part of the batter of the landfill on Lot 204 collapsed and flowed downhill and downstream into the unnamed tributary of Little Cattai Creek and its surrounds.
Particulars of harm to the environment
(a) Placing or otherwise introducing matter into the waters of the unnamed tributary of Little Cattai Creek:
(i) so that the physical, the chemical and, or in the alternative, the biological condition of the waters was changed;
(ii) so that the physical, the chemical and, or in the alternative, the biological condition of the waters was changed with the effect of degrading the environment;
(iii) so that the change in the condition of the waters made or was likely to make the waters unclean, noxious, poisonous or impure, poisonous to aquatic life, or animals in or around the waters;
(iv) that was of a prescribed nature, namely inorganic matter, including soil, earth, mud, stones and sand; and, or in the alternative,
(v) that was of a prescribed nature, namely scrap metal, glass, junk, plastics, and, or in the alternative, rubbish;
(b) Placing or otherwise introducing matter into the waters of an unnamed tributary of Little Cattai Creek causing direct or indirect alteration of the environment, with the effect of degrading it, including by:
(i) smothering and killing plants;
(ii) modifying and destroying habitat for fauna;
(iii) creating anoxic conditions;
(iv) causing the formation of iron oxide and iron oxide deposits;
(v) causing the formation of hydrogen sulphide gas;
(vi) causing or facilitating the germination of exotic plant species; and, or in the alternative,
(vii) changing the appearance of the creek, namely from a natural creek to a creek containing the matter, and, or in the alternative,
(c) Placing or otherwise introducing matter in the surrounds of the unnamed tributary of Little Cattai Creek, causing direct or indirect alteration of the environment, with the effect of degrading it, including by:
(i) smothering and killing vegetation;
(ii) modifying and destroying habitat for fauna;
(iii) changing the appearance of the surrounds, namely from a natural bushland area to an area containing the matter; and, or in the alternative,

(iv) causing or facilitating the germination of exotic plant species.
Particulars of matter
See “Particulars of substance” above.
Particulars of negligence
(a) construction of unstable batter of the landfill;
(b) construction of batter of landfill by loose dumping/end tipping of materials rather than by construction of horizontal layers, from the bottom up;
(c) construction of batter of landfill from the substances particularised above rather than materials having an appropriate particle size for each layer;
(d) construction of the landfill without any or any adequate filter or transition zones;
(e) construction of the landfill without any or any adequate temporary diversion works or spillway;
(f) construction of the landfill without any or any adequate stripping of vegetation and loose natural ground beneath the fill;
(g) construction of core zone of the landfill from material other than compacted clayey fill;
(h) construction of the batter of the landfill so that the slope of the downstream face was greater than 35o;
(i) failing to compact or to adequately compact the matter used to construct the batter of the landfill;
(j) failing to conduct any or any appropriate compaction tests;
(k) carrying out major landfill construction works without the supervision of a geotechnical engineer; and, or in the alternative,
(l) construction of the landfill in such a way that a reasonable person in the position of the Defendant could have foreseen that it would be likely to collapse in heavy rain.

The relevant provisions of the EOPA

25. The EOPA relevantly provided, in respect of the offences charged, as follows:

4(1) “environment” includes all aspects of the surroundings of human beings, including:

(a) the physical factors of those surroundings, such as the land, the waters and the atmosphere, and
(b) the biological factors of those surroundings, such as animals, plants and other forms of life, and
(c) the aesthetic factors of those surroundings, such as their appearance, sounds, smells, tastes and textures.

“harm” , in relation to the environment, includes any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the foregoing, includes:

(a) any act or omission that results in air pollution, within the meaning of the Clear Air Act 1961, and
(b) any act or omission that results in the pollution of any waters, within the meaning of the Clean Waters Act 1970.
“ waste ” means:
(a) effluent, being any matter or thing, whether solid or liquid or a combination of solids and liquids, which is of a kind that may be removed from a septic tank, septic closet, chemical closet, sullage pit or grease trap, or from any holding tank or other container forming part of or used in connection with a septic tank, septic closet, chemical closet, sullage pit or grease trap; or
(b) trade waste, being any matter or thing, whether solid, gaseous or liquid or a combination of solids, gases and liquids (or any of them), which is of a kind that comprises refuse from any industrial, chemical, trace or business process or operation, including any building or demolition work; or
(c) garbage, being all refuse other than trade waste and effluent.

4(3) For the purposes of this Act, a substance is not precluded from being waste merely because it may be refined or recycled.

5. Disposal of waste without lawful authority
(1) If a person, without lawful authority, wilfully or negligently disposes of waste in a manner which harms or is likely to harm the environment:
(a) the person, and
(b) if the person is not the owner of the waste, the owner,
are each guilty of an offence.

6. Leaks, spillages etc
(1) If a person, without lawful authority, wilfully or negligently causes any substance to leak, spill or otherwise escape (whether or not from a container) in a manner which harms or is likely to harm the environment:
(a) the person, and
(b) if the person is not the owner of the substance, the owner,
are each guilty of an offence.

8. Penalty for Tier 1 offences
A person who is guilty of an offence against this Division is liable to a penalty not exceeding $1,000,000 in the case of a corporation or, in any other case, $250,000 or 7 years imprisonment, or both.
9. Matters to be considered in imposing penalty
In imposing a penalty for an offence against this Act, the court is to take into consideration (in addition to any other matter the court considers relevant):
(a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence, and
(b) the practical measures which may be taken to prevent, control, abate or mitigate that harm, and
(c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence, and
(d) the extent to which the person who committed the offence had control over the causes which gave rise to the offence, and
(e) whether, in committing the offence, the person was complying with orders from an employer or a supervising employee.

10A. Onus of proof concerning lawful authority
The onus of proving that a person had lawful authority (as referred to in sections 5, 6 and 8F) lies with the defendant.

11. Nature of proceeding for Tier 1 offences
…
(3) If proceedings are brought in the Land and Environment Court, the maximum penalty that the Court may impose for the offence is, notwithstanding any other provision of this Act, $1,000,000 in the case of a corporation or, in any other case, $250,000 or 2 years imprisonment, or both.

14. Orders for restoration, prevention and compensation
(1) In addition to imposing a penalty for an offence arising under Division 1 or 2 of Part 2, a court may order the person convicted to take such steps as are specified in the order, within such time as is so specified (or such further time as the court on application may allow), to prevent, control, abate or mitigate any harm to the environment caused by the commission of the offence or to prevent the continuance or recurrence of the offence.
(2) In addition to imposing a penalty for an offence arising under Division 1 or 2 of Part 2, a court may, where it appears to the court that:
(a) a public authority has incurred costs and expenses in connection with the prevention, control, abatement or mitigation of any such harm, or
(b) a person (including a public authority) has, by reason of the commission of the offence, suffered loss of or damage to property or has incurred costs and expenses in preventing or mitigating, or in attempting to prevent or mitigate, any such loss or damage,
order the person so convicted to pay to the public authority or person the costs and expenses so incurred, or compensation for loss of or damage to property so suffered, as the case may be, in such amount as is fixed by the order.
(3) An order made by the Land and Environment Court under subsection (2) is enforceable as if it were an order made by the Court in Class 4 proceedings under the Land and Environment Court Act 1979.

26. Section 9 above has now been re-enacted as s 241 of the Protection of the Environment Operations Act (“POEO”) Act 1997.

The Waight land and its environs

27. At all material times, Michael Waight and his wife Rita owned, as joint tenants, and resided upon, a property of some 16.58ha (41 acres), known as lot 204 in Deposited Plan 75209, and located on the western side of Old Northern Road, at Forest Glen near Glenorie (“lot 204”).

28. Lot 204 is located 15km north of Dural in the local government area of Baulkham Hills Shire Council and zoned Rural 1(b) under Baulkham Hills Local Environmental Plan 1991 (“the LEP” - Exhibit P135). In that zone “agriculture” is permissible without consent, “dams” are permissible only with development consent, and “waste disposal” is “advertised development”, which requires a development application to be advertised before it is considered by Council.

29. The Waights bought lot 204, originally in the name of a family company, in October 1977, and went to live on it in 1978. They transferred it into their own names in May 1980, and had “cleared and fenced” it by1981. They built their permanent home on it 1981-83. Electricity was connected in 1982. Waight appears to have worked the subject land full-time 1978-81 (T1210).

30. They completed the sale of lot 204 on 11 August 2000 to Maha Budhi Company Pty Ltd for $925,000 (M. Waight affidavit pp 80ff), and it is now used as a “monastery” (T1252). Full particulars of these proceedings were provided to the purchaser.

31. The Maroota Crown Lands are located to the west of lot 204, and they cover a large area of land (4,000-4,500ha or 40-45km2), with high natural heritage values like a national park.

32. On lot 204 there are springs, tiny feeder creeks, and a series of small gullies. Lot 204 occupies a “head of catchment” position on an unnamed natural watercourse, which is fed from an area close to Old Northern Road, and flows intermittently in a direction, generally east to west, at the foot of the relevant gully in which the embankment central to these charges was constructed. That gully runs generally north to south downhill. Although it was dammed because it is itself a natural watercourse, I will refer to it as the/a “gully”, and to the unnamed watercourse at its base as the/a “creek”.

33. The unnamed creek then runs into the Maroota Lands, where it joins Little Cattai Creek some 4.2km downstream. Little Cattai Creek flows into the Broadwater Wetland, and then feeds into the Hawkesbury-Nepean river system at Ebenezer. The waters of Little Cattai Creek have enjoyed a reputation for being potable. (Smith, affidavit 16 September 1998, par 28).

34. Lot 204 and those creeks allegedly damaged by the incidents involved in the charges are generally described by one expert witness (White, affidavit 16 April 1999, pars 5, 6 and 9) in these terms:

5. The area in which the creeks are located consists of a dissected part of the Hornsby plateau. The top of the plateau consists of horizontal layers of Hawkesbury sandstone with a general elevation of between 200 and 215 metres above sea level. The small feeder creeks descend quickly over a series of sandstone steps to a level of about 160-170 metres above sea level, where the secondary creeks form. The watercourses for the secondary creeks are not steep and descend very slowly as they travel horizontally across major sandstone strata.
6. The Glenorie sites that I examined were fairly typical of sites on the upper Hornsby plateau. The general elevation was over 200 metres above sea level. The erosion of the Hawkesbury sandstone layers has produced an intricate series of small gullies that contain numerous tiny feeders creeks that descend quickly to the base level where secondary creeks form. As the primary creeks are on steep slopes, there are few sites where water can be retained for long periods. In general, water is available in rocky pools in the watercourses or as seepage across less permeable sandstone layers. These features mean that large pools of water do not exist in the primary watercourses. Any pool that is present is small and many are transient.
…
9. The four surveyed creeks are part of the upper headwaters of Little Cattai Creek. They receive most of their run-off from the main north-south ridge that carries Old Northern Road, although minor flows appear to come from several smaller transverse spurs. The north-south ridge-top has been partly developed, with a mixture of light industry and low density, semi-rural residential dwellings …

The creek system in more detail

35. Defence witness Paul Anink carried out a detailed survey/study of the creek system of which the relevant gully and creek form part. Figure 3 in his affidavit was adopted by both the prosecutor and defence counsel to deal with the evidence in this hearing, and a copy of it is attached to this judgment as Annexure “A”. The court notes the relative steepness of the country at each extremity of that plan.

36. The relevant embankment enlargement works were carried out on the gully Anink calls Creek “MN”, and the dislodged materials affected the creek he calls “ME”.

37. A series of creeks join ME downstream of its confluence with MN. Most of the alleged effects on ME occurred within the boundaries of lot 204. ME’s confluence with MN occurs at a point 12,950m upstream of the Hawkesbury River. The groundwater course of waters from springs near the house on lot 204 is referred by Anink as “creek” MW, and it meets ME a short distance downstream from the MN/ME confluence. A short distance further downstream (at 12,820m) MS meets ME.

38. Just upstream from the MS/ME confluence is a large natural rockledge across ME, and, just downstream from that confluence, a gross pollutant trap has now been erected (approximately on the boundary of lot 204). Further downstream ME is joined by creek NN (at 12,2770m from the Hawkesbury). Further downstream again creek SS joins ME (at 11,920 from the Hawkesbury). ME, so augmented, joins Little Cattai Creek (at 8,990m), and Little Cattai Creek then meets the Broadwater Swamp (at 8,170m).

39. On the questions of environmental harm, the length of ME from the “toe” of the dam wall, as it now exists, to the natural rockledge has been referred to during the hearing as Phase 1, the length of ME from the rockledge to the gross pollutant trap as Phase 2, and the length from that trap to the NN/ME confluence as Phase 3.

40. It is alleged by the prosecutor that, prior to the construction of the subject embankment, the unnamed creek and its surrounds were in “pristine” condition. On behalf of the defence, Anink disputes that the affected areas were truly “pristine”. However, they were the home for rare and threatened native plants; and they provided habitat for tree frogs, two of which are on the “vulnerable” list, and one of which was found to occupy the land (the Red Crowned Toadlet). Three regionally significant native mammals - wombat, koala and glider - were also found there. The Little Cattai Creek area displayed rich biodiversity, whether truly “pristine” or not.

The actual harm alleged

41. The threshold for proving the harm element required for a conviction for such offences is quite low, but quite substantial environmental harm is alleged here, largely because of the material used to construct the embankment, and because its failure essentially “dammed” the unnamed intermittent “creek” at its base. It is further alleged that substantial environmental harm also resulted when the material smothered habitat, and destroyed some of the “riparian zone”.

42. In his written closing address (pp 48-49), Mr Buchanan particularised the environmental harm, alleged by the prosecutor to have been sustained by the affected area and its creek system, in these terms:

Summary of harm to the environment for s.5(1) offence
Mr Waight’s construction of the landfill embankment harmed the environment in the following ways -
(a) Creek ME was polluted with fill material and hydrocarbons;
(b) native vegetation was smothered and killed in the riparian zone in Creek ME by fill material extending too far down the bushland gully;
(c) native vegetation was smothered and killed in the bushland gully by the landfill extending too far laterally in the gully;
(d) frog habitat, including that of the Red Crowned Toadlet, was destroyed in the area of the embankment toe; and
(e) macroinvertebrate habitat was destroyed in the area of the embankment toe.
Summary of harm to the environment for s.6(1) offence
The landslide and erosion that Mr Waight caused on 18/19 May 1998 harmed the environment in the following ways -
(a) Creek ME was polluted with fill material, hydrocarbons, organochlorine pesticides and excessive deposits of iron oxide;
(b) native vegetation was smothered and killed in the riparian zone of Creek ME downstream of embankment toe;
(c) exotic species were introduced into the riparian zone of Creek ME requiring bush regeneration work over a number of years for distances of up to 2 kilometres downstream of the embankment toe;
(d) frog habitat was destroyed in Creek ME for a period of time and whilst there has been colonisation by ‘tolerant’ species, the threatened Red Crowned Toadlet has not returned to Creek ME downstream of the embankment;
(e) macroinvertebrate habitat was destroyed in Creek ME upstream of the confluence of Creek MS. The macroinvertebrate fauna was still far poorer than expected at the date of the last thorough survey in November 1998.

The Waight farming operation and the dam pre-1994

43. In their early years on lot 204, the Waights farmed/bred vegetables, geese, chickens, guinea fowl and cattle dogs (R Waight affidavit, pars 6 & 10), and then cattle (up to 12 head) and nectarines (600 trees), from about 1985 and 1991 respectively, until the onset of drought and bushfire, especially in the years 1991-94.

44. The defence claims that the Waights were anxious to improve the water supply to the house, the garden, the orchard, and the stock troughs, by increasing the capacity of an existing farm dam, and that this was the defendant’s only or major motivation for undertaking the relevant works on the dam.

45. A fairly major farm dam had been constructed close to the top of the relevant gully on lot 204, apparently about 10 years before the Waights bought the property in 1977, and it was bisected, into what I will call the “North” and “South” dams, by the construction of a “driveway” from Old Northern Road to their house in 1982. The North dam is sometimes referred to as the “silt (entrapment) dam”, and the South dam as the “(sole) water storage dam”, and the North dam drains clean water into the South dam through two 150mm pipes. Defence witness Joliffe suggested that the total catchment area draining to the South dam is 4.1ha.

46. The dam which the Waights chose to enlarge, and which is now the subject of these charges, is the South dam. In 1984 Waight put an electric pump in that dam to move water around to various points on the property, and in 1991-92 he set up an irrigation system from the dam for the orchard, the garden, and the cattle trough. (Mrs Waight is a keen and noted gardener).

47. The subject embankment was designed as an addition to the gully (southern) side of the South dam, to increase its capacity.

48. There was some suggestion in the evidence that it would have been better for farm water supply purposes if Waight had sought to enlarge the North dam, rather than the South dam. His motives for choosing the South dam were questioned by the prosecutor, but Waight contends that he was advised against developing the North dam, by the man who built the original dam (one Jim Saunders), apparently because of a sandstone “fault” in the North dam’s floor, and he chose to accept that advice. The expert evidence on both sides indicates that that “difficulty” does exist, but could be easily overcome.

The fundamentals of the Prosecutor’s case

49. The prosecutor alleges that the purpose of enlarging the embankment of the dam was to receive waste for profit, rather than to enlarge the dam to hold farm water.

50. It is asserted that Waight has failed to comply both with the 1995 DC, and with the court’s August 1996 consent orders. Suffice it to say that the allegations are that it was negligent to place the waste where he did, to do so in the way in which he did, and to do so without adequate sedimentation and other controls or precautions.

51. In general terms, the assertions in the charges are that the embankment was not built to the J&K specifications, that the embankment spread outside its approved design footprint, that it was not properly compacted, that it was not built in such a way that its toe finished above the creek, that it was not reasonable of the defendant not to build it in such a way as it would withstand such a rainfall event, and that the defendant did not have any excuse, as a result of it being “under construction”, when he had to revise plans for it in May 1998.

52. The prosecutor alleges that, by late 1997, the defendant was operating a profitable landfill at the subject site, and that it had become his dominant activity. The embankment by then had the same attributes as had led to the Council’s 1995 class 4 proceedings. The toe had been established at the stipulated level (RL 52?), but was overwhelmed by the sheer quantity of fill material, largely demolition waste. Yet the defendant failed to consult his geotechnical “supervisor”, as required by the DC and the court’s orders, until BHSC expressed its renewed concerns in May 1998.

53. The prosecutor also alleges that:

(i) the defendant’s choice of the southern dam over the northern dam was driven by profit rather than water needs.
(ii) the defendant’s method of tipping showed more interest in getting waste in, than building a good dam wall.
(iii) the defendant’s inclusion of garbage tip type waste was not consistent with the fill appropriate for a properly constructed dam wall.
(iv) as an experienced project manager and “ environmental consultant ”, the defendant must have been aware that he was not complying with the DC, as modified by orders of this court.
(v) that the defendant told his customers (e.g. Sam Emerzidis) that lot 204 was a tip, and sent out documents, calling it a tip or waste facility, and boasting about the competitiveness of his fees.

The prosecution witnesses

54. The prosecutor relied upon the evidence of 51 witnesses.

55. For simplicity I will now group them and outline their evidence briefly, for easy understanding, and relation of their respective roles in the case.

56. The first group of witnesses comprises EPA Officers involved in the investigation:

(1) Leslie Johnston (Affidavits 24 September 1998, 5 February 1999 and 8 March 2000), is a mechanical engineer with substantial landfill experience. He visited the site on 4, 7, 11 and 19 November 1997, and on 8 and 27 May 1998, held several discussions, and took a number of photographs (see also Exhibit P12 and Exhibit P13 taken 4 November 1997).
Of his first inspection on 4 November 1997, he said (24 September, par 8):

I considered there was some danger if I were to go down to the bottom of the batter on this occasion because of falling waste.

On 7 November 1997, Waight said to him (24 September, par 13):

The Court gave orders which said I had to use certain types of demo waste to get the strength out of the dam.

On 19 November 1997, Waight said to him (24 September, par 18):

I have had legal advice which says I don’t need a waste licence. I am making this dam bigger so I have enough water for my cattle and fruit trees. … I’m using the dam for agricultural purposes and don’t need a licence.

In his affidavit of 8 March 2000, Johnston expresses the following views:
12. … the Michael Waight landfill was considered by me to present an unacceptably high level of risk because of:

(a) its construction in a watercourse;
(b) no evidence of provision of upslope surface water runoff diversion;
(c) the hay bale structure in the watercourse below the landfill was not of sufficient capacity;
(d) lack of facility for total capture of leachate, that is, capture of surface runoff that has come into or was likely to have been in contact with waste;
(e) no provision of low permeability layer below waste or leachate (as groundwater) collection system; and
(f) potential for contaminated soil to be disposed of at the site without operator being made aware.

…
15. The landfill at Michael Waight’s property did not have the necessary surface water management system to control the entry of pollutants caused by surface water runoff from landfilling activities. The landfilling activity had similarities with the Eastern Creek Racecourse landfill in that waste was being deposited above the ground surface. The risk of water pollution from the Michael Waight landfill was even greater than that from Eastern Creek Raceway because the waste was being deposited in an intermittent watercourse to form a dam wall without any surface water runoff storage dam.

(2) Christopher Bowles (Affidavit 9 October 1998), is a science graduate with landfill regulation experience, who visited the site on 19 November 1997, then on 8, 22 and 29 May, 23, 28 and 31 July, and 4 September 1998, and took photographs and soil samples. Bowles was involved in the execution of a search warrant on 29 May 1998, during which visit he took video footage ( Exhibit P4 ).

Of his inspection on 19 November 1997, Bowles said (par 7):

During the course of the inspection I saw that the fill material consisted of a mixture of excavated material (soil, clay etc) and demolition type waste (broken up cured concrete, bricks etc). There were two men and a small bulldozer on site. It was obvious that fill material had been progressively tipped on the surface of the filled area, and the bulldozer had been used to progressively push this material over the top of the fill batter into the gully below. I was reluctant to walk too close to the top of the fill batter where the surface appeared to be very soft.

Bowles’ photographs of 8 May 1998 show the extensive fill then on site.

(3) Jan Dekker (Affidavit 17 November 1998) is a science graduate in a management role in the Waste Section of the EPA. He visited the site on 8 May 1998, issued a notice to Waight on 15 May 1998 to cease receiving waste, and later issued notices to him under the Waste Act ( Exhibit P137 , 31 August 1998), and CW Act ( Exhibit P138 , 1 April 1999).

(4) David Taylor (Affidavits 9 November 1998 and 27 October 2000), is a science diplomate with extensive landfill experience, who visited the site on 16 and 22 May 1998, and was the senior EPA officer on the site when the search warrant was executed on 29 May 1998. He was also involved in surveillance of the site on 23 July 1998, and in the taking of video footage on 16 May 1998 ( Exhibit P2 ) and 22 May 1998 ( Exhibit P3 ).

(5) Danielle Playford (Affidavits 9 October 1998 and 26 October 2000), is a science graduate employed in the Waste section of the EPA. She visited the site on 16, 23, 24 and 29 May 1998 and was involved in taking some of the video footage ( Exhibit P2 , 16 May, and Exhibit P4 , 29 May), and in the execution of the search warrant, being responsible for compiling the folder of documents obtained on the search ( Exhibit P21 ).

(6) Stephen Durrington (Affidavit 27 October 2000), is a Senior Regional Operations Officer, based at Penrith in 1998, who attended the site on the execution of the search warrant on 29 May 1998.

(7) Marina Slavez (Affidavit 27 October 2000), is a financial auditor and chartered accountant, who audits landfills to ensure that waste levies remitted to the EPA are accurate and complete, and was involved in the execution of the search warrant on 29 May 1998.
(8) Taylor , Playford and Slavez also gave oral evidence, largely regarding events at lot 204 during the execution of the EPA’s search warrant (T327-339).

57. The second group of witnesses comprises BHSC Officers:

(9) Peter Zadeian (Affidavit 24 February1999), Council’s Strategic Planning Co-ordinator, gave evidence about:

(i) Council notices to Waight dated 30 November 1994 and 11 June 1998;
(ii) Council’s granting of Development Consent 94/679 on 24 February 1995;
(iii) Council’s class 4 proceedings against Waight (Matter 40176 of 1995);
(iv) visits to lot 204; and
(v) various meetings and correspondence regarding lot 204.

Waight allegedly told Zadeian he would not disturb the south-eastern area of lot 204 but during the fill operations he appears to have constructed a sub-standard alternative access for trucks.

Relevant contents of Council’s files are annexed to Zadeian’s affidavit, but there is no evidence as to whether or not the original dam was the subject of any DC.

Zadeian also gave oral evidence (T222-233), in particular reference to Council’s liaison with the EPA, a meeting with Waight on 8 May 1998, and a relative lack of contact between Council and Waight before that meeting regarding any concerns Council had with his works on the site.

(10) David Savage (Affidavit 8 April 1999), was a development control officer 1994-1996. He swore an affidavit on Council’s behalf in matter 40176, and gave evidence of his observations of lot 204 in 1994 and 1995, annexing numerous photographs he took. Savage gave an estimate of the amount of fill on the site as at 29 September 1995 (see ‘ J ’ in Annexure “ A ” to his April 1999 affidavit). Also, when Savage visited the site on 5 September 1995 he found Waight in an “ agitated ” state after falling “ over the edge of the fill on my tractor ”.

(11) John May (Affidavit 17 March 1999), is a development control officer since 29 July 1996, and gave evidence of several inspections of lot 204, between 19 March 1997 and 10 June 1998, and of a meeting with Waight at Council’s offices on 8 May 1998.

Stuart

Nunn

decided it was not safe to descend further down the landfill embankment

about one third of the way down

58. The third group of witnesses comprises the EPA’s Surveyor and Technical witnesses:

(13) Thomas Nicholson (Affidavit 24 August 1998),
(14) Andrew Sloot (Affidavit 26 August 1998), and
(15) Paul Fameli (Affidavit 17 September 1998) are all geophysicists employed by Coffey Geosciences Pty Ltd. They were engaged by the EPA, and/or by the EPA’s consultant expert, Dr Pells, to carry out seismic refraction studies of lot 204 on 28 July 1998, to “ determine the natural profile ”. Coffey submitted its report dated 21 August 1998 to the EPA (Annexure “ B ” to Fameli), and it was used by Dr Pells to prepare his evidence. Sloot deposes to:
(i) observing on 28 July 1998 “ white smoke ” emerging from augur holes he made,
(ii) to detecting that the ground near those holes was “ warm to the touch ”, and,
(iii) to experiencing “ a noticeable foul odour … I would associate with the smell of a rubbish tip ” (pars 8-9).

(16) Andrew Swane (Affidavits 31 August 1998 and 28 November 1998) is a registered surveyor, employed by Proust and Gardner, who collaborated with the Coffey on-site studies, and then considered Coffey’s report, inter alia, in carrying out survey work for the purpose of estimating the relevant volumes of fill, whether they were present on the site, and/or slid into the creek.

He first visited the site on 29 May 1998 and located approximately 90% of the fill material in these two categories, but “ the extent of the fill on the site [was] actually greater than the area that I was able to survey ” (31 August, par 4).
On 10 June 1998 he surveyed the site in relation to the Australian Height Datum. From all the data obtained on these two visits, and on 28 July 1998, he prepared plans “ APS1 ” and “ APS2 ” (in Exhibit P24 ). After considering the draft Coffey report he prepared “ APS3 ” ( Exhibit P24 ). By comparing those plans he prepared “ APS4 ” ( Exhibit P24 ), “ showing depth of fill material ”, and “ volume of fill on the site ”. He said (31 August par 11):

The figure I calculated was 90,000 cubic metres. I believe that this may underestimate the volume of fill on the site, because:

· I was not able to locate the entire quantity of fill in my survey on 29 May 1998; and
· some of the levels taken around the edge of the fill were on filled material, rather than on the natural surface. This means that in some instances, the base level used is higher than the natural level and some fill has been excluded from the calculation.

In respect of fill material in the creek, he said (31 August, par 12):

When I carried out survey work on 29 May 1998, I surveyed an area in which it appeared that part of the fill material had slid further into the creek on the property. When I carried out survey work on 28 July 1998, a part of the fill that had slid into the creek had been removed (‘ the exposed creek area’ ). I surveyed this area and included the levels in the plan of the base level which is marked ‘APS 3”. I calculated the quantity of fill that was in this section of creek on 29 May 1998, by the same method I used to calculate the total quantity of fill on the site. The volume of fill in that was in the exposed creek area on 29 May 1998 was 1550 cubic metres. However, there is considerably more fill that slid into the creek that is not included in this calculation.

In his later affidavit Swane deposed to carrying out additional survey work on 23 October 1998 “for the purpose of locating any section of creek upstream of the toe of the batter of the landfill and preparing a locality plan of the site”. He, in fact, prepared two locality plans, and a transparency to overlay aerial photographs of lot 204 (“APS5”, “APS6” and “APS7” in Exhibit P25).

(17) Stephen Lellyet (Affidavit 16 April 1999) is a very senior meteorologist with the Bureau of Meteorology, and he deposed to rainfall records at the Bureau’s Glenorie Station 6km from Forest Glen between 1 and 21 May 1998. The Bureau records rainfall only in 24 hour periods. Rain fell during each 24 hour period to 9am on 16, 17, 18, 19 and 20 May 1998 with 126.0mm recorded in the 24 hours to 9am on 19 May 1998. Lellyett says that rainfall of this intensity occurs in this location about once in every two to five years. In the 48 hours to 9am on 19 May 184.0mm of rain fell - such rainfall occurs about every 5 years.
(18) Roger Riley (Affidavit 18 May1999), is an experienced senior hydrographer with “ Australian Water Technologies ” and provided relevant rainfall data for Mr LePlastrier’s work.

(19) Philip Pells and

(20) Barry LePlastrier are both consulting civil engineers, whose evidence, in report form on affidavit, and oral, will be referred to in greater detail later in this judgment.

Pells filed three affidavits, dated respectively 8 October 1998, 6 May 1999, and 29 September 2000. Reports separately tendered were dated 2 September 1998 (Exhibit P26) and 27 October 2000 (Exhibit P127). He was first engaged 28 May 1998 as principal of Pells Sullivan Meynink Pty Ltd. He is an expert in slope stability analysis. (His oral evidence is at T613-654).

LePlastrier is an expert in water flow modelling and hydrology studies. His only affidavit is dated 13 May 1999. His first inspection on 8 April 1999 involved the taking of photographs. (His oral evidence is at T655-664).

59. The fourth group of witnesses gave evidence regarding the arrangements for the taking, nature and amount of fill taken to the site:

(21) Mark Vaughan (Affidavit 5 July 1999 and oral evidence T257-307) is a director of GCJF Services Pty Ltd. He met Waight in 1994 and he personally, his company and his employees, were very much involved in the relevant taking, depositing and dispersion of fill between late 1996 and about April 1998. I will return to his evidence later in this judgment. (See also Exhibits P14-P20 ).

(22) Warren Birkinshaw (Affidavit of 21 January 1999, and oral evidence T248-251) is a qualified civil engineer, formerly employed by Ku-ring-gai Council to manage the construction of all Council’s road and drainage works and to locate sites for disposal of fill material from such civil construction works. He contacted Waight in early 1997 and inspected lot 204 in mid 1997, in the knowledge that it was owned by Waight, and noting “ an active tipping area ” and a “ long and steep ” batter of the landfill.

He obtained details of Waight’s BHSC development consent (“ DC ”), the consent orders, and the J&K specifications, and then concluded an arrangement with Waight’s company Neligh Holdings Pty Ltd and Vaughan’s company GCJF Services Pty Ltd to tip Council’s waste material at lot 204. Vaughan was nominated as the “ facility operator ”.

Birkinshaw deposed (par 8) that Council’s “ fill material was predominantly a mix of clay, soil, roadbase, concrete and asphalt ” from Council’s Gordon depot, and that it was transported in “a bogie truck with a dog trailer, which together carry about 23 tonnes ”. He produced invoices for 341 loads (7843 tonnes) in 1997-98 and cheque records for payments to Neligh Holdings totalling $43,300.

(23) Frederick De Vries (Affidavit 17 February 1999) is a plant allocator with Ku-ring-gai Council. He accompanied Birkinshaw on an inspection of lot 204 in about September 1997, and then arranged for Cockerill Contracting Pty Ltd to cart fill to lot 204. The fill so carted was “a mixture of dirt, clay, road base, concrete, bitumen and shale from Council’s work sites ” (par 5). Carting ceased in May1998.

(24) Jon Harrison (Affidavit 21 January 1999) is a plant operator and yardman at Ku-ring-gai Council’s Gordon depot, and he deposed to the sorting of waste at his depot resulting in the inclusion among the “ mixed waste ” pile of some “ smaller rocks, dirt, bitumen, concrete, leaves and blue metal ”. He loaded Cockerill trucks from that pile between September 1997 and May 1998. He annexed a photograph of “ typical ” material sent to lot 204, and De Vries and Cockerill corroborate that photographic evidence.

(25) Robert Cockerill (Affidavit 2 February 1999) is responsible for the day to day management of the family “ civil contracting, haulage and plant hire business ” which transported “ mixed waste ” from Council’s Gordon depot to Enviroguard at Erskine Park, and later to lot 204. He deposed to the record keeping arrangements.

(26) Sam Emerzidis (Affidavits 7 December 1998 and 15 February 1999, and oral evidence T252-256), is a director of Civil National Landworks Pty Ltd (“ CNL ”) and says he became aware of landfilling at lot 204 in about 1991-92. He has sent trucks also to other sites, including one at Kellyville Park, in respect of which he made payments to Waight. From October 1997 CNL carted excavation waste, comprising “ road base material, basalt, sand, clay and some fragments of concrete ” and classified as “ inert ” (par 4 of 7 December), in 25 tonne loads from a Mirvac site at Pyrmont to lot 204. Waight charged CNL a total of $38,520 for 578 loads (14,350 tonnes).

Sam Emerzidis also deposed to carting to lot 204 smaller quantities of waste from three other jobs, and to taking a telephone call from Waight in August 1998 asking him to tell the EPA he carted only topsoil, and not “ concrete or rubble ”, to lot 204. He annexed invoices received from Waight, many of them bearing the heading “ M. Waight t/a Glenorie Tip Facility ” and are signed off “ M. Waight Site Owner ”.

Sam Emerzidis’ later affidavit links the affidavits (all dated 20 January 1999) of
(27) Roberta Lindbeck ,
(28) Michael Long , and
(29) Ronnie Tong , all from Douglas Partners Pty Ltd, to the “ inert ” nature of the fill from the Mirvac Pyrmont site which was taken to lot 204.

(30) Simon Emerzidis (Affidavit 15 April 1999), is a director of Simons Earthworks Pty Ltd, which tipped material at lot 204, from July 1997, being demolition waste from sites at Rushcutters Bay (bricks and concrete), North Ryde (top soil and vegetation, excluding trees and stumps), Strathfield (concrete), and Sydney (bricks, concrete and some soil). Simon Emerzidis annexes some invoices from Micato Holdings Pty Ltd T/a Glenorie Tip (facility) and some from Michael Waight, so trading, all signed by Waight as “ Facility Owner ” or “ Site owner ”. He deposes further that Waight sent him nine photographs of fill material including “ stumps, vegetation, timber and junk ” (now Exhibit P27 ) which Simon Emerzidis denies having tipped at lot 204.

(31) Russell Harrison is an EPA Investigator who swore an affidavit (5 August 1999) solely for the purpose of putting in evidence a Record of Interview he conducted with

(32) Stephen Bassett on 9 June 1999. Bassett owns a “ company ” known as Bassett Demolitions, of Lidcombe, which delivered “ clean fill ” from a site at West Ryde to a “ landfill ” at lot 204. Whenever Bassett’s demolition waste included “ brick and concrete rubble ”, Bassett says he ran it through a crusher “ about 150ml (sic) down to 70ml (sic) no contaminants - no sort of rubbish in the loads ”. Some of the invoices received by Bassett were from “ M Waight t/a Glenorie Facility ”, and others simply from “ M Waight ”.

(33) Nicholas Drake (Affidavit 8 August 2000) was at relevant times a plant operator with Bassett Demolitions and, in late 1997, worked on the demolition of a large brick building at Hornsby, which had been burnt out. Among the materials involved were asbestos, glass, lead and steel, and he says they were, largely, neither sorted nor crushed, but were taken to lot 204. There were about 220 loads from the Hornsby site and Drake estimates there were about 60 other 22 tonne truck loads from house demolitions.
(34) Stephen Sarkis (Affidavit 18 January 1999) was a partner of
(35) Robert Bechara (Affidavit 18 January 1999) in “ Get Fast Waste Bins ” in 1997. He was approached by Waight, at a take-away store in Glenorie one day in November 1997 and invited to deliver soil to lot 204. Sarkis passed on the contact phone number to Bechara who rang Waight. At the time Get Fast carried demolition material (including from the Sydney GPO project) to a depot in Camellia where it was sorted into “ hard ” and “ light ” fill. “ Hard ” fill, comprising “ dirt, shale, clay, bricks, pieces of concrete and rock mixed together ” (Bechara par 4), was taken to lot 204 at a usual cost of $100 per 10-12 tonne load, which Get Fast paid to Blue Print Corporation. Bechara estimates he sent 130 loads and paid $13,020.
(36) Sam Gabrael (Affidavit 18 January 1999) deposed that the “ hard ” fill referred to in Bechara’s evidence contained no contaminated material.

60. The prosecutor helpfully collated an “aide memoire” of its evidence as to the amount of waste/fill received at lot 204 between 17 June 1997 and 15 May 1998. The sources of the calculations were the affidavits of Vaughan, Birkinshaw, Sam Emerzidis, Simon Emerzidis, Bechara and Russell Harrison, and the business records tendered (Exhibits P14, 15, 17, 18 and P139). All the material was assumed to comprise waste, any item specifically marked “clean fill” or duplicated in the evidence was excluded, and conservative tonnage estimates for various vehicles were adopted. The prosecutor calculated total deliveries of 71,782 tonnes of waste, but described those calculations as “conservative” (T1246f) due to limitations on the evidence available.

61. The fifth group is the EPA’s expert witnesses on resulting environmental harm (whose evidence will be dealt with in more detail later in this judgment):

(37) Moreno Julli (Affidavits 30 November 1998, 20 July 2000 and 9 March 2001, plus oral evidence T520-542 and T12.3.01 pp 9-13) is Research and Testing Services Manager at the EPA (CV Exhibit P125 ), carried out inspections and sampling on 22 May 1998, 13 March 2000, and 11 December 2000 (see also Exhibit P30 , Exhibit P31 , Exhibit P32 , Exhibit P142 , and Videos Exhibit P2 and Exhibit P3 ).

(38) Timothy Ingleton (Affidavit 9 March 2001, plus oral evidence T12.3.01 pp 15-17), an environmental technician who took samples and made observations on 11 December 2000.

(39) Eren Turak (Affidavit 27 November 1998, plus oral evidence T190-218) is a senior environmental scientist at the EPA, with special responsibility for the National River Health programme in NSW. He carried out inspections and sampling of the relevant creek system on 29 May 1998, 2 November 1998 and 23 February 2000 (see also Video Exhibit P4 , and Exhibits P5-P10 ).

(40) Arthur White (Affidavits 16 April 1999 and 7 September 2000 and oral evidence T543-558) is a self-employed environmental consultant specialising in threatened frog species (CV Exhibit P126 ), and inspected the area on 17 February 1999 and 23 February 2000.

(41) Rodney Buckney (Affidavits 30 November 1998 and 12 September 2000, plus oral evidence T558-577), is a biologist and Associate Dean of Science at UTS Sydney, who works in the field of ecotoxicology. He inspected lot 204 on 2 November 1998, with Turak, and took water samples and photographs. He returned to the site on 23 February 2000 and took further photographs.

(42) Roger Lembit (Affidavits 16 October 1998 and 14 September 2000) is a self employed environmental consultant who conducts flora and fauna surveys and impact studies. He inspected the creek system on 31 July 1998 and 13 March 2000.

(43) Gunther Theischinger (Affidavit 3 July 2000) works as a technician at the EPA’s Water Science Laboratory, identifying aquatic macroinvertebrates, and analysed various samples taken in the relevant investigations.
(44) Martin Smith (Affidavits 16 September 1998 and 6 September 2000) is a ranger with the National Parks and Wildlife Service (“ NPWS ”), and gave evidence regarding the conservation values of the Maroota Crown Lands, the relevance thereto of runoff from lot 204, and the complaints made by the NPWS to BHSC regarding tipping at lot 204. He carried out inspections and took photographs on 4 September 1998, and on 13 March 2000. See also Exhibit P132 .

62. The sixth group of witnesses is comprised of miscellaneous other witnesses relied on by the EPA:

(45) Neville Burkett (Affidavit 29 January 1999), an architect employed by the NPWS, is a “ direct neighbour ” of the Waight property (to its south). He observed extensive tipping activity, and large trucks queued up near a second access gate to Waight’s property, close to Burkett’s boundary, particularly “ in about the twelve months leading up to May 1998 ”.

(46) Bernard Moriarty (Affidavit 30 November 1998) is a consultant surveyor who provided the EPA with enlarged aerial photographs of lot 204 ( Exhibit W1 flown 20 March 1992; Exhibit P22 flown 25 November 1997; and Exhibit P23 flown 30 August 1995).

(47) Bruce Walker is a Director of, and
(48) Linton Speechley is an engineer employed by, Jeffery and Katauskas Pty Ltd (“ J&K ”), the consultant geotechnical and environmental engineers, engaged by Waight regarding the works on lot 204 between 1995 and 1998. They declined to swear affidavits in these proceedings, but both gave oral evidence (T394-519, 578-612, 665-750), to which I will return in more detail later. (See also Exhibits P33 to P124 , and Exhibits P128-9 ).

(49) John Mackay (Affidavit 18 July 2000) is a Telstra Corporation officer, who deposed to records he produced linking certain telephone numbers used by the defendant and related entities such as Blue Print Corporation and a company (Jemby Corporation Ltd - Exhibit P29 ) closely linked to Waight’s surveyor Barrie Green .

(50) Peter Tattersall (Affidavit 5 August 2000) is the licensed postal agent at Dural Post Office who deposed to records he produced linking a certain private mail box address (PO Box D405 Dural 2158) to Mr Waight, Blue Print Corporation, and other Waight companies and GCJF.

Edward

Curran

organise the paperwork that had to go to the Council

the actual filling

landscaping

engineering

The Defence case

63. A lot of exhibits to the affidavits filed in the defendant’s case were bound into the affidavits upon which he relies, and were accepted by the court as part of that evidence.

64. The defendant himself gave evidence (Affidavit 10 November 2000 - “MW” - plus oral evidence for 2 days T1013-1216), but he also relied upon evidence from the following:

(i) His wife Rita (Affidavit 4 November 2000 - “ RW ”).

(ii) His treating Psychiatrist Dr Graham Altman (Affidavit 30 October 2000, annexing detailed reports dated 6 March 1995 and 30 October 2000, covering treatment since 10 November 1994).

(iii) Gary Leonard (Affidavit 28 October 2000, plus oral evidence T752-773), an environmental and landscape consultant, and Senior Associate of Gunninah Environmental Consultants (see also Exhibits W4-W6 ).

(iv) Paul Anink (Affidavit 28 October 2000, plus oral evidence T813-926), an environmental scientist, who is Managing Director of Marine Pollution Research Pty Ltd, and specialises in the investigation of pollution effects in marine and fresh water aquatic environments. He is the author of two major reports, dated March and October 2000, updated by Exhibits W8-W15 . See also Exhibit P133 , and a report dated 19 February 2001, in respect of proposed s 14 orders (in Exhibit W22 ).

(v) Ian Joliffe (Affidavit 27 October 2000, plus oral evidence T774-811), a Resources Engineer with Gutteridge Haskins & Davey Pty Ltd, specialising in rural drainage, catchment and flood plain management, and hydrology. See also Exhibit P134 .
(vi) Warwick Davies (Affidavits 11 and 27 October, and 4 and 9 November 2000, plus oral evidence T928-1010), consulting geotechnical engineer, also acting as the Principal Geotechnical Engineer of GHD Longmac Pty Ltd, to whose reports and affidavits extensive fill testing results are attached. His reports and affidavits are updated by Exhibit W16 , Exhibit W17 , and Exhibit W19 . See also Douglas Partners’ report ( Exhibit P136) , and reports dated 15 November 2000 and 26 February 2001, in respect of the proposed s 14 orders (in Exhibit W22 ).

65. With his comprehensive written submissions, Mr Preston provided, for the assistance of the court, the following 6 schedules:

1. Schedule of evidence that the defendant’s purpose was to build a dam to increase water supply for residential agricultural and bushfire fighting purposes.
2. Schedule of Revenue/Income calculations.
3. Schedule of Fill Volumes and Types.
4. Schedule of the evidence of Mr Waight’s co-operation with responsible authorities.
5. Schedule of sentences imposed in relation to Tier 1 offences.
6. Schedule of the affidavit/report evidence of Dr Pells and Mr Davies - Design and Construction Issues and Mechanism of “ Failure ”.
as well as a schedule of references, in MW affidavit, to other documents in the case.

66. In summary, the “fill figures” in Schedule 3 indicate as follows:

(a) As at 21 September 1995, BHSC estimates 24,740 tonnes of fill on lot 204, but Waight estimates 2,500 tonnes.
(b) Deliveries to site after consent orders were made 12 August 1996, meant the following estimated cumulative tonnages on site:

By end January 1997 238-241 tonnes

February/March 1997 2,859-3,208 tonnes

By end of April 1997 5,509-6,022 tonnes

By end of May 1997 9,839-10,546 tonnes

By end of June 1997 10,863-11,654 tonnes

By end of July 1997 14,061-15,024 tonnes

By end of August 1997 16,514-17,669 tonnes

By end of Sept. 1997 19,086-20,315 tonnes

By end of October 1997 36,738-38,276 tonnes

By end of Nov. 1997 47,228-49,142 tonnes

By end of Dec. 1997 52,577-54,729 tonnes

By end of January 1998 58,724-61,122 tonnes

By end of February 1998 75,044-78,690 tonnes

By end of March 1998 81,438-85,630 tonnes

By end of April 1998 84,396-88,800 tonnes

By 18 May 1998 84,780-89,184 tonnes

The Defendant’s Development Application 1994

67. BHSC complained in late 1994 about what looked to be landfill activities being carried on in the relevant gully of lot 204, without Council’s consent, and, on 30 November 1994, Council issued Waight with a notice regarding his alleged use of unauthorised fill.

68. In response Waight ceased work, lodged a development application (DA 94/679), and a supporting letter, on 16 December 1994, together with a survey dated 13 December 1994 by Barrie Green (not annexed as “E” to Zadeian’s affidavit at p 23, but a stamped version appears at pp 33-34).

69. The DA sought approval for “enlargement of existing water supply dam” to be used for “residence/rural” purposes. Waight estimated that he would need 9,000 cubic metres of fill, and that the proposal would cost $2,500. He claimed to be a “qualified Project Manager”.

70. Surveyor Green (from whom Waight subleased an office in Dural at the time), had drawn relevant plans and diagrams, based on a desire to raise the “dam full” water level from RL 92.5 to RL 96.5. (See Zadeian p 34). To achieve this objective the wall had to be raised by approximately 4m from RL 93.2 to RL 97.

71. There is some dispute about Waight’s assertion at the time that he himself had relevant qualifications to “do” the job. He says that he has a 1986 Certificate or Diploma in Building and Construction Management from the University of Western Sydney, and that he has worked in the construction industry since 1970, with 15 years supervision experience on “numerous construction projects in the Baulkham Hills and Hornsby shires including: (a) dams of varying sizes; (b) subdivisions; and (c) various buildings” (see unfiled Waight affidavit 5 July 1996 at Zadeian p 36).

72. Waight’s letter to Council dated 16 December 1994 relevantly included the following (Zadeian pp 20-22):

…The (mostly dry) watercourse leading away from the dam - for some further 500m - is in fact, all within the boundaries of this property.
…
The very sharp southern contours of the existing dam mean that the expansion had to be executed in two stages.
1. A quantity of hard fill had to be brought in to create a wider top of the existing dam that then allowed,
2. clay (impervious) material, as a second stage, to be placed on the top of the wall itself to hold the dam.

There was (and remains) no opportunity to simply “top up” - make higher - the existing wall with clay only. The existing top of the dam wall does not have enough bulk and dimensional lateral (sideways) area (and therefore strength) to hold any additional water.

…
5. Fill consists of:
(a) Bricks and cement blocks for majority of dam wall to stabilise the southern wall area contours. This will be dressed with clay/topsoil.
(b) Impervious Clay for top of dam wall used as a waterproof membrane to increase the height directly associated with held water storage. The clay compacted by bulldozer.
…
9. … The gradient will allow natural shedding of rain; but clay soil mix will form into the natural cavities formed by bricks allowing the material to stabilise.
Note that 5m from the toe of the wall will have 10 staked (sic) hay bales installed to prevent any minor soil erosion permeating into the (dry) watercourse area.
…
This report shows that as the right material becomes available the works will be completed. It is not a matter of “any material” being acceptable, or usable. I am a qualified project manager well versed in this area of works; and can therefore make professional judgments as to the type and quality of acceptable materials.

Given the proposed new height of the dam wall, the works will be completed in correct stages to properly allow the raising of the wall another 4 metres above existing levels as the plans allow. This will allow when completed, an added estimated 4.5 megalitres of water to be stored.

73. During the assessment of the DA Waight wrote to Council again on 27 January 1995 and said, inter alia, in response to Council inquiries regarding various dams on lot 204 (Zadeian p 26):

I also point out that the facts are that the property has been specifically engineered along its entire driveway length - 300m - and over a number of the paddocks surrounding and above this “silt entrapment dam” with all or any rainwater to flow into that silt trap dam in the first instance, and then into the sole water storage dam.

Not guessed, but planned for its purpose; and subsequently engineered. Its depth is never over 1m, in an area of just 600sm. This water is clearly not used for residential, cattle or fruit tree use; and it is obviously not connected to any pump. Useless for, and not intended for water storage.

Therefore its capacity “.. to be near full” or otherwise - given its engineered use and purpose - is an entirely inaccurate statement, and not worthy of being made by Council.

There is a second dam to the LHS of this - which is in fact the dam for enlargement.

The silt trap dam is indirectly connected to this dam via twin 150mm pipes at the maximum exit point of that silt dams exit; placed under the road, and emerging some 2m above the top level of the lower dam to allow water enhancement by “water oxygenation”.
This dam is clearly - and visually - still down about 2 metres from its peak capacity - despite the recent heavy rains - and that means it is some 500,000 litres below its actual capacity, as at the date of this letter.

The Council’s Development Consent 1995

74. BHSC’s DC (D94/679), granted by delegated authority, and advised in writing to Waight on 24 February 1995, was stated to be for “dam enlargement”, and included relevant conditions (especially Nos.2, 6, 9, 11 and 12).

75. Waight contends that Council had satisfied itself he was “genuine”, but imposed conditions which were inconsistent with each other (especially No.11, which he claimed was not consistent with Nos. 1 and 9, regarding the slope of the embankment).

76. The major relevant conditions (Zadeian pp 30-32) required Waight to:

(i) carry out the approved works “ substantially in accordance with the approved plans and details, stamped and returned … ” (Cond.1 - Zadeian pp 33-34).
(ii) use “ only clean fill ”, but no builders waste, industrial waste or putrescible materials (Cond.2);
(iii) engage a geotechnical engineer to supervise “ site filling and compaction ” (Cond.7), which was to be carried out in accordance with levels indicated on Plan No.2618 prepared by Barrie R Green … dated 13 December 1994 (Cond.9);
(iv) remove top soil and vegetation prior to placement of fill (Cond.6);
(v) compact the embankment to 95% (Cond.7);
(vi) limit the grade or slope on any batters to “ 2 metres horizontal to 1 metre vertical ” (Cond.11);
(vii) observe Council’s erosion and sedimentation control standards prior to commencement of works (Cond.12); and
(viii) construct a suitable overflow on a natural overflow path (Cond.13).

77. The Council’s covering letter (Zadeian 30), advising of the grant of consent, relevantly included the following paragraph:

This Consent does not relieve the developer of the obligation to obtain further approvals with reference to Building and/or Health Regulations or any other Acts”.

78. The DC was forwarded to Waight with a letter from Council, dated 28 February 1995, drawing his attention especially to Condition 2, and directing him to remove from the site within 14 days “the builders’ rubble and concrete” which had been observed during Council’s pre-consent inspections.

79. Work recommenced following the grant of consent.

The Class 4 proceedings and consent orders 1995-6

80. Later in 1995 Waight allegedly failed to observe Council’s notice to cease work - he says he thought it just meant “accept no more fill” - and, following an inspection by Savage on 21 September 1995, Council commenced matter 40176 of 1995 on 29 September 1995 (Exhibit P11), against both Waight and his wife.

81. In his affidavit of 8 April 1999, Savage says (in par 9):

9. My inspection of lot 204 on 21 September 1995 … confirmed what I had seen on 5 September 1995. I made the following observations:
(a) the fill consisted of builders rubble: timber, concrete, wire reinforcing, tree branches/stumps, plastic conduit, corrugated sheeting, window frames, insulation, tyres, a television, gyprock, an otto bin, plastic drums and other miscellaneous rubbish….;

(c) foreseeability:

305. The defendant acknowledged to Walker as early as 8 March 1996 (Exhibit P38) that the safety factor of the project appeared low.

306. He was, and held himself out to the consent authority and the court to be, a professional person experienced in proper dam construction methods. As such, he cannot be said to have misunderstood the terms and import of the DC conditions and/or the class 4 orders, especially as to matters of slope, layering, compaction, testing, avoidance of the watercourse, expert supervision, and the need for proper sediment and erosion controls.

307. The collapse, and all the harm that eventuated in this case, were, in my view, reasonably foreseeable.

(d) control:

308. Waight was the owner of the landfill site, but relied upon experts, especially when it came to questions regarding placement of the toe in the east-west watercourse. He had, obviously, no control over the magnitude of the storm event, nor, on the evidence, the overtopping of the dam.

309. There was an attempt in the defendant’s submissions to sheet blame home to others, including Mr Walker of J&K, but Waight was the owner; he was the one who engaged the experts; he presented himself as an experienced project manager; he showed a preparedness to sack consultants; if he expected Walker to be more active (e.g. “like” Walker’s colleague Hawkins had allegedly been on the Dural job), he was in the best position to insist upon more active supervision (Waight affidavit par 71), and he frequently telephoned J&K to “run things past” Walker.

310. Obviously, to some extent, “trusted advisors”, such as Green, Maxwell and Walker, exert some degree of indirect control over what occurred on site, but I am satisfied, by the evidence, that Vaughan had little real control of relevant events on site.

Consciousness of Guilt

311. The prosecutor relies on Waight’s pre-offence conduct to establish his consciousness of guilt, despite his pleas of guilty (T1352 L25-31).

312. Waight made important mistakes - such as relying on the DC and the court orders as directions to enlarge the dam without other approvals - but I am not convinced beyond reasonable doubt that he told any lies, and, in any event, no element of deceit or fraud forms part of the offences charged.

313. Much of the defendant’s version of relevant events relied upon by the prosecutor is entirely corroborated by relevant evidence, and/or an adverse inference against the defendant is not “the only rational inference to be drawn” from the relevant evidence (T1356 L25-26).

314. Nor am I convinced beyond reasonable doubt that he either deliberately withheld evidence, or tried to destroy or exclude evidence, that may have implicated him in worse wrongdoing than appears on the face of the factual evidence. He categorically denied those allegations (T1203-4).

“Subjective” Considerations

1. The personal circumstances of the defendant himself

315. Waight was born on 26 March 1945. After leaving school in 1962 he worked as a trainee sales representative with Ciba Geigy until conscripted into army service 1965-67, during which time he worked in the Engineering Corps in Vietnam.

316. On return and discharge, he undertook, on scholarship, an agriculture degree at Hawkesbury College 1967-70, and then went jackerooing 1970-73. He had delicatessen businesses 1973-78, worked on his Glenorie property 1978-81, and was involved in real estate, home construction, and securities 1981-89. By late 1986 he had a certificate in Building and Construction Management at the University of Western Sydney and he undertook study of further units in that field in 1991. He traded from 1989, through Blueprint Corporation Pty Ltd as a project manager.

317. He married in 1970, divorced in 1976, and then married his present wife, Rita, and assumed responsibility for her three sons (born 1958, 1960 and 1962), two of whom have health problems. The youngest son lives in Queensland.

318. Mr & Mrs Waight control several small companies such as Neligh Pty Ltd and Micato Pty Ltd, and the evidence refers also to Lawrence Marks Pty Ltd, which is apparently now Michael Waight Pty Ltd (T1212), as well as Blueprint Corporation.

319. Mrs Waight, now 63, apparently suffered a nervous breakdown in 1991 and has had chronic fatigue syndrome since then. She no longer works outside the home. Having sold their Glenorie property, the Waights now live at Booker Bay, near Ettalong - apparently in a shed while they build their new home.

320. Mrs Waight says in her affidavit (par 7) that the defendant had a great appreciation of the environmental attributes of their Glenorie property, when and after they acquired it in 1977, due to their shared love of the bush (MW par 252, RW par 3).

321. Mrs Waight attributes her 1991 breakdown to “a number of factors, including the strain of living with Michael’s post-traumatic stress disorder” (RW par 12), which causes violent mood swings, difficulties sleeping, recurring flashbacks to Vietnam and suicidal impulses (submissions par 573). “Whilst he shows a confident face to the world, I am aware of the extreme anxieties from which he suffers” (RW par 43). The court accepts that she lives in a very stressful relationship.

322. In his own evidence, Waight acknowledged that he can appear abrupt and abrasive. He shared with the court some of his very troubling experiences in Vietnam (MW par 260). Over the years 1967-1994, he sought help from General Practitioners for “nerves” (T1210-11), but since 1994 he has been under the continuing care of Dr Altman, a psychiatrist in private practice. Since being under Dr Altman’s care he “no longer drinks” (T1020 L8, and T1210). With the support of Dr Altman he was accepted in September 1999 (MW par 10) as totally and permanently incapacitated for work, and now does only about 8 hours per week through the office he shares with Green (T1212). He is on regular medication.

323. The prosecutor did not challenge the sworn testimony of Dr Altman. Due to the sensitive nature of that evidence, I will not repeat it here. Waight was strenuously cross-examined by Mr Buchanan, who conceded, in his submissions, that the defendant had responded robustly (T1282). Mr Buchanan challenged him as “not really incapacitated”, and “highly intelligent, if not cunning” (T1204), and Waight responded that he coped only “with the help of a lot of pills” (T1204).

324. I attach great significance to the evidence of Dr Altman, who has treated Waight since 10 November 1994, before any of his current troubles commenced, and especially to his report of 6 March 1995 to Waight’s then local doctor.

325. Dr Altman acknowledged the court’s expert witness practice direction, which commenced 1 September 1999, and opined, as at 30 October 2000 that Waight “suffers from a severe chronic Post-traumatic Stress Disorder with an associated Major Depression”, and that “imprisonment would be a most undesirable option for Mr Waight in light of his severe chronic” condition, which would be exacerbated by imprisonment to the extent that “suicide would become a realistic possibility”. Waight’s condition has been aggravated by the events of 18-19 May 1998 and their aftermath.

326. I ordered the defendant to report for pre-sentence assessment by the Probation and Parole Service. The report (Exhibit P140) was helpful to the court, and acknowledged consideration of Dr Altman’s report, “perusal of court depositions”, and a “lengthy interview”. It assessed him as “not suitable” for Periodic Detention or Community Service. Were he to be placed on a Good Behaviour Bond, the service submitted that its supervision “does not seem warranted”.

327. Waight appears to have undertaken this dam project somewhat in the role of “owner-builder” (T11650. He argues now that the court’s consent orders actually “direct” J&K to be more proactive than they were in supervision of him (T1211 L35-49). Walker, on the other hand, accepted Waight’s representations that he knew about the dam building, and was content to be “called in” as required.

328. Waight says (affidavit par 9) “I do not consider myself to be an expert in relation to the construction and enlargement of dams”, but he had worked on relevant projects in his army days and since, and in the class 4 proceedings, on 5 July 1996, he swore to having “both worked on and supervised numerous construction projects … including (a) dams of varying sizes …” (Zadeian affidavit 24 February 1999 p36 par 5). He certainly had landfill experience (e.g. T1029-30), but in his cross-examination he played down his qualifications as a “project manager” (T1109 L24-27), and said he had “over-relied” on his experience with Hawkins, of J&K, on a dam project (as part of a subdivision in flatter terrain - T1110 L15-18), and on his discussions with local dam builders Christie and Nicholson (T1074 and 1165). He acknowledged he needed expert help (T1111 L1-2).

329. In his affidavit (pars 122, 123) he acknowledges, with hindsight, that, as at 30 September 1997, “the rockfill toe clearly intruded upon what I now know to be an unnamed tributary of Little Cattai Creek”, but “I did not appreciate that” at the time. He goes on (at par 151) to complain that J&K never advised him about the hydrological conditions in the watercourse or its relevance to the stability of the J&K design. From a man of his bush and work experience, I find that evidence hard to accept - he had lived on this land for 20 years, is a keen bushwalker, and he told me there was not “any part of the place and well beyond that I have not been” (T1210 L11-28). He simply must have known the topography of the slight depression in the valley below the dam, and that it would carry water from time to time.

330. Much is made, in the prosecution case, of Waight’s dealings with two particular individuals, Vaughan and Walker.

Vaughan

331. Waight entered a barter-like commercial arrangement with Vaughan, late 1996/early 1997 and they have both sworn to different versions of how it evolved, worked and ended.

332. It survived until about 9 April 1998, during which time an enormous amount of fill was received and handled. During the course of the arrangement, Waight signed Vaughan’s name on three letters (T1211), and the prosecutor alleges that at least two of these letters played a role in Waight’s alleged deceit of Ku-ring-gai Council.

333. The Waight/Vaughan joint venture concluded an arrangement with Ku-ring-gai Council, but Vaughan did none of the negotiations. The evidence establishes that Waight was truthful in his discussions with Birkinshaw about Waight’s ownership of the land, and the on-ground operation of the landfill by Vaughan. Waight’s company name (Neligh Pty Ltd) was on all letters and invoices to Birkinshaw. Birkinshaw did not assert that he was deceived, and there is no evidence that he was.

334. The prosecutor also alleges that Waight urged Vaughan to destroy evidence and not cooperate with the EPA investigation, but the evidence does not support those allegations beyond reasonable doubt.

Walker

335. Waight had worked with J&K’s Brett Hawkins for about twelve months on a job at Dural 1993-94, but when he contacted Hawkins to help him with the subject job, he recommended Bruce Walker.

336. Walker did the basic design work based on Green’s early survey work. Walker’s first report of 13 November 1995 (Exhibit P34) was based on Green’s survey of 13 December 1994 (Exhibit P33), and Walker’s Figure 6 was “superimposed” upon Green’s survey dated 19 February 1996. RL 43 and RL 52 were alternative locations for the toe of the embankment.

337. The three J&K reports of 15 April, 28 June and 31 July 1996 became annexures to the court’s consent orders on 12 August 1996, but Walker had then no involvement with Waight again until 20 June 1997, when Waight wrote to him. There was then a fair bit of involvement until 30 September 1997 (Exhibit P46 to Exhibit P56).

338. Walker then dealt with Waight and BHSC, and (unbeknown to Waight) with the EPA, in November 1997, and then there was another “quiet” period until 11 May 1998, when Waight called Walker in for help with Council’s 8 May 1998 “list of issues” (Exhibit P69).

339. When Walker got to the site on 14 May 1998, he became more concerned with what he saw than with the Council list. He struggled with the survey material, and drew a profile of the project as at 16 May 1998 (figure 6A). Then the collapse occurred and Walker became closely involved in the early remediation and redesign works. Strangely, he did not see the 12 August 1996 court orders until 19 August 1998, by which time they left only one year to finish the project.

340. In his evidence, Walker admitted that on 14 May 1998 it became apparent to him that the creek was located at RL 43 and not RL 42. In adopting and adapting Green’s February 1996 survey to draw figures 6 and 11, he had thought RL 43 would put the toe 5m from the creek, and RL 52 30m from it, but the plans were wrong. Figure 6 also adopted Green’s direct access track route (T584 L49 to T585 L4) without checking its feasibility.

341. Walker does not acknowledge the court orders as being directive of him (T735-7). He expected Waight to call him in, as and when required. Certainly not much occurred or went wrong until after Speechley’s visit on 30 September 1997, and there was no real reason for alarm, in what he then knew of the project, when the EPA contacted him first in November 1997. He had no knowledge of the vastly increased fill activity on site in that period - activity during which Waight saw no need to call him in.

342. Walker had several conversations with the EPA without briefing Waight on them, and that eventually brought about the termination of the arrangement between Waight & J&K.

343. Waight saw that arrangement as requiring closer ongoing “supervision”, not just occasional inspections, and says that he wanted such supervision and believed it was required by BHSC and the court - “… the court … in fact instructed him …” (T1113 L9-10). “I did need help and I expressed that view” (T1111 L1-2). Walker saw J&K’s role as responsive to Waight, rather than proactive (T1112 L50-3). Pells testified that he, in Walker’s position, would have contracted Waight, and visited the site, after the EPA expressed some concerns in November 1997 (T645).

344. The respective roles of designer, builder and supervisor do not appear ever to have been clearly defined, but the defendant has been very critical of Walker’s role in the project. It is also noteworthy, however, that Walker asked Waight in July 1997 for an up-to-date survey from Green and none was supplied before May1998 - hardly the response of a client wanting closer supervision (c.f. MW par 256), albeit that Walker did not follow-up either.

2. Other matters of mitigation

(a) Plea of Guilty

345. Under s 22 of the Crimes (Sentencing Procedure) Act 1999, and the principles in the “guideline” judgment in R v Thomson (2000) 49 NSWLR 383, the defendant is entitled to a discount of 10% to 25% in response to the “utilitarian benefit” of his pleas of guilty.

346. The prosecutor argued that a last minute plea, coupled with a major contest on every element of the prosecution case on sentence, meant there was no “utilitarian benefit”, but, in the light of the fact that the determination of guilt or innocence was expected to take 30 days, I cannot accept that argument.

347. The guilty plea was very late, and the sentencing hearing went over at least some ground that would have been covered in a primary trial, but I am prepared to allow a discount of 15% for it.

(b) Remorse and contrition

348. The prosecutor argued that there was absolutely no evidence of any remorse or contrition on the defendant’s part, and that such an argument was strengthened by the lateness of the plea. However, the fact that the defendant chose to contest the matter until the “last moment” does not mean that remorse and repentance cannot be present. R v Gray [1977] VR 225 (at 231).

349. It is clear, from his evidence, that Waight for a long time did not believe that he had done anything for which he should incur the wrath of the criminal law. With the benefit of proper legal advice he came to realise that he did, or failed to do, some things which a reasonable person in the circumstances would have avoided, or done, as the case may be, and he then entered his plea.

350. The objective evidence of contrition is hardly overwhelming, but it is present in the material before me (see also T1198-9 and T1350-2), and some allowance should be made for it. His reaction to the collapse was swift, even if not environmentally sophisticated, and credit should be given for his evident love of “the bush”, for such good intentions about remediation, and for the expenditure so far incurred in that regard, namely $162,500 of a capital nature (MW par 248), and approximately $150,000 for consultants (MW par 246).

351. I do note, however, that he does not appear to have complied completely with various post-collapse notices.

352. It is conceded that he has no prior convictions and that there is no evidence, other than that relied on to establish motive in this case, that he is a man of other than good character.

353. I have no concern that he is likely to re-offend. I have no reason whatsoever to detect a “continuing attitude of disobedience of the law” on his part. Veen v The Queen (No.2) 164 CLR 465.

(d) Co-operation with the authorities

354. Prior to the collapse of the embankment, Waight’s primary dealings with public authorities were with BHSC. Those dealings were over a period of some years and the evidence suggests that he was certainly always responsive, even if not proactive. He appears to have obeyed all Council’s instructions, except one he claims to have misunderstood, and to have provided all information requisitioned, and he has negotiated his way through all Council’s concerns since his initial response to its requirement of a DA in late 1994.

355. Prior to 18 May 1998, his main dealings with the EPA appear to have concerned his possible need for a Waste Act licence, and possible exposure to liability for the payment of waste levies. I accept the evidence that he sought, and accepted, professional advice on those issues, and hence continued to operate on the basis that he was primarily accountable to BHSC for what happened on his land, the Council being the relevant consent authority (T1198 and T1350 L44), and the other party to the court’s consent orders which redefined his project.

356. In those circumstances, I am not troubled by the evidence that he chose not to report the collapse to the EPA when he reported it to BHSC, and to the designated supervisor (J&K).

357. When the EPA came to see him on 22 May 1998, he offered paperwork (Taylor par 30), and the next he heard from the EPA was the dramatic scenario surrounding the execution of the search warrant on 29 May, after which he was certainly less co-operative with that agency. The relationship could hardly be expected to improve after such an event, no matter how justified the warrant was, and the commencement of these proceedings was certainly not likely to improve it.

358. While he has not been co-operative with the prosecutor since 29 May 1998, there appears to have been absolutely no effort on his part to keep his activities secret in any way.

359. I make no criticism of the conduct of the EPA, during the search on 29 May 1998, as it appears from the evidence adduced and tested at the hearing, but I accept the evidence as to its impact on Mrs Waight, and the “knock-on” effect of that reaction on Mr Waight.

(e) Reliance on Experts

360. The plea of guilty is appropriate because the evidence established that Waight should have done more to protect the environment from harm.

361. One culpable aspect of Waight’s conduct was his unjustified self-assurance that the project was within his own capacity, a self-assurance which resulted in his not seeking sufficient advice or supervision from experts. Nonetheless, he did rely on experts to the extent that he sought their advice, and a mistake by the surveyor Green played a role in the eventual collapse of the embankment. The storm hit the embankment while Waight was addressing the mistake.

362. It is a mitigating circumstance that Waight accepted and relied upon expert advice, the competence of which, prior to the events of 11 to 18 May 1998, he had no reason to doubt. EPA v Baiada Poultry Pty Ltd [2000] NSWLEC 249.

(f) Costs

363. I have taken into account the defendant’s preparedness to at least contribute to the prosecutor’s costs, subject to his capacity to fund payment of any fine and the fulfilment of any s 14 remediation orders.

(g) Remediation

364. I have taken into account the defendant’s attempts to remedy the environmentally harmful consequences of his negligence and the offer he made in respect of submitting to certain s 14 orders.

(h) Bail

365. I have also taken into account that Waight has been on conditional bail from 20 May 1999 until today.

The appropriate penalty

366. The prosecutor submitted that a term of imprisonment is the only appropriate penalty to impose in this case. The objective features were serious - the defendant was guilty of “thumbing his nose at the law, dramatically harming the environment” (T1280 L48-9), and sought to blame everyone else for the result. There are no grounds for leniency, and a heavy sentence in this case is needed to deter the defendant and others.

367. The defence says that Waight had an honourable purpose, obtained consent to build his dam, and “bit off more than he could chew” (T1360 L23-4). In the result he has been ruined financially and emotionally, imprisonment is “disproportionate” to the objective seriousness of the offences, and “deterrence must give way to proportion” (T1359 L28-29). A substantial fine would be appropriate, and cannot be regarded as “a weak option” (T1357 L32-5).

368. Under s 8 of the EOPA each of the offences with which Waight has been charged attracts a fine of up to $250,000, and/or two years imprisonment.

369. Section 5(1) of the Crimes (Sentencing Procedure) Act 1999 provides:

A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

370. This court has sentenced only one environmental offender to a term of imprisonment, and also imposed the maximum fine. In EPA vGardner (50072 and 50074 of 1996) - see Lloyd J’s sentencing judgment 7 November 1997 - the defendant had pleaded not guilty to a charge under s 5(1) of the EOPA, but his was a very different situation indeed from Waight’s. His conduct was wilful, deliberate, deceitful, sustained over 128 weeks, and posed a major threat to public health. Financial motivation was proven beyond reasonable doubt.

371. Given Waight’s state of health and personal circumstances, it would be inhumane and unwise for me to send him to prison, but, although the harm resulting from his offences is serious, it does not justify such a penalty in any event.

372. The combined environmental consequences of these offences are far more serious than the overlapping acts of negligence that comprise them. Several mitigating circumstances have been made out; the area of environmental impact was, fortunately, contained by the intervention of nature; and none of the aggravating circumstances advanced by the prosecutor have been made out.

373. The court expects him to take full personal responsibility for the comprehensive remediation programme I am ordering today - see par 252 and Annexure ‘B’.

374. A substantial fine is the appropriate penalty.

375. Capacity to pay a fine is a relevant consideration. Fines Act 1996 s 6, and Smith v The Queen (1991) 25 NSWLR 1.

376. The total amount to be found by the offender, including costs, is also to be taken into account. Zanol v Newtown (1974) 10 SASR 199. The Fines Act regulates how and when fines are paid.

377. The evidence of the defendant’s means is not conclusive, but he claims an excess of liabilities over assets of $28,459, after all his estimated remaining legal expenses are paid. It is clear that he has already been put to substantial expense as a result of these events - he testified to expenditure of more than $300,000 on consultants and capital works to rectify the damage, leaving aside his legal expenses thus far, which have been substantial (at least $487,000).

378. I have already determined that he must bear a very onerous responsibility for remediation works, including substantial upfront and on-going expenditure over a period of up to 20 years - see Buckney’s estimate of $35,000 plus perhaps $10,000 pa in par 240. It is also appropriate that he be ordered to pay at least a proportion of the prosecutor’s costs which, the court was told, may amount to $350,000 (T1363 L25-6).

379. He has been accepted as totally and permanently incapacitated for work, but tries to work for about 8 hours per week. He has a sick wife and two sons in need of at least some care and support. His own psychiatric conditions are said to have worsened, and his family relationships have been seriously strained, by the subject matter of these proceedings.

380. Mrs Waight said in her affidavit (RW par 42):

We have been destroyed financially as a result of part of the dam being washed away into the creek. I never thought our late years would end with us in such a precarious situation. I put all my inheritance from my father and my savings into our property at Glenorie. We are currently living in a shed on a block of land at Booker Bay, while we build another home. We have lost all hope for a comfortable retirement.

381. Having regard to all these matters, to the other mitigating features referred to in this judgment, and to the principles of “proportionality” and “totality” discussed above, I have decided that this is a case in which justice must be tempered with mercy, Cobic v Liddey (1969) 119 CLR 257 (at 269), and I intend to impose fines of $30,000 and $120,000, for the section 5(1) and 6(1) offences respectively.

382. Mr Preston’s submission on the question of the prosecutor’s costs was simply that Mr Waight would not have the means to pay the full $350,000 suggested, as well as a large fine, and the further remediation expenses.

383. The defendant must at least contribute to the prosecutor’s costs (see offer in Exhibit W21), but those costs must be “just and reasonable”. Now that the questions of penalty and remediation have been determined, perhaps the parties can reach some agreement on the amount of costs and how and when they should be paid. If they are not agreed, the defendant has a right to seek their assessment. To facilitate negotiations I will not nominate a payment time in respect of the prosecutor’s costs.

Orders

384. I, therefore, make the following orders:

385. In Matter 50019 of 1999

1. The defendant is convicted of the offence charged in the summons.
2. The defendant is ordered to pay a fine of $30,000.
3. The defendant is ordered to pay the just and reasonable costs of the prosecutor, as agreed, or assessed according to law.

386. In Matter 50020 of 1999

4. The defendant is convicted of the offence charged in the summons.
5. The defendant is ordered to pay a fine of $120,000.
6. The defendant is ordered to pay the just and reasonable costs of the prosecutor, as agreed, or assessed according to law.

7. Pursuant to s 14 of the EOPA I make the orders sought in the Prosecutor’s Amended Notice of Motion, filed in court in both matters on 29 January 2001, a copy of which is annexed to this judgment.
8. By consent, the charges in matters 50021 and 50022 of 1999 are dismissed, with no order as to costs.
9. Exhibit P11 is to be returned to the court file in matter 40176 of 1995. Exhibits P140, P141, W8, W9, W21 and W22 are to remain with the court files in these class 5 matters, but all other exhibits may be returned.

I HEREBY CERTIFY THAT THE PRECEDING 386 PARAGRAPHS ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT OF THE HONOURABLE JUSTICE T.W. SHEAHAN.

Associate:

Dated: 22 June 2001

IN THE LAND AND ENVIRONMENT COURT ANNEXURE ‘B’

OF NEW SOUTH WALES

TAKE NOTICE that the Prosecutor

Nos. 50019 - 50020 of 1999 will, at 2pm on, 29 January 2001

move the Court for orders as follows:

Works and Structures At the Premises

1. Within 3 months of the date of

Applicant these orders, cause to be

constructed and/or installed on

MICHAEL JEFFREY WAIGHT the embankment, support

FILED FOR THE PROSECUTOR greater than 0.5 metres in

Stephen Garrett height, but less than or

Solicitor

Environment Protection Authority equal to 1.5 metres in

59-61 Goulburn Street

SYDNEY NSW 2057 height:

DX 11587 Sydney Downtown

Ref: Stuart Simington

Tel: (02) 9995 6090

Fax: (02) 9995 5951.

(i) cause to be constructed a dry stacked rock toe wall with a suitable base dimension as determined by a suitably qualified geotechnical engineer.

(i) where in the opinion of a suitably qualified geotechnical engineer the width of the zig-zag track permits such support structures, cause to be installed structures of the type required by order (b)(i) above. The dimensions of the dry rock toe wall, and any trimming of the slope above the top of the dry rock toe wall are to be as determined by a suitably qualified geotechnical engineer for each location where the existing cut face is greater than 1.5 metres in height; or

(ii) where in the opinion of a suitably qualified geotechnical engineer the width of the zig-zag track does not permit installation of support structures of the type required by order (b)(i) above, cause to be installed a timber post wall or equivalent retaining wall. The dimensions of the wall, and any trimming of the slope above the top of the wall are to be as determined by a suitably qualified geotechnical engineer for each location where the existing cut face is greater than 1.5 metres in height; and

(d) cause a registered bush regenerator to plant suitable indigenous plant species on

any areas of the embankment disturbed by works required by orders (a), (b) and (c).

2. By not later than one month following the completion of the support structures required by order 1, cause a suitably qualified geotechnical engineer to provide a certification in writing to the Manager, Sydney Waste, Environment Protection Authority as to whether or not the support structures have been constructed in accordance with the design specifications.

3. Within 3 months of the date of these orders, cause to be installed, scour protection works downstream of the stilling basin.

4. Within 3 months of the date of these orders:

(a) cause to be installed at the toe of the embankment, a sediment and nutrient catch basin by a person experienced in the installation of such structures; and
(b) cause to be planted around the edges of the catch basin so installed, indigenous macrophytic plants such as Ghania sieberiana (saws edge) and juncus usitatus (common rush).

5. Following installation of the structures and works as required by orders 1, 3, and 4:

(a) cause the structures and works required to be installed by orders 1 and 3 to be inspected by a suitably qualified geotechnical engineer:

(i) at least once each year for the period of 5 years following the date of these orders; and
(ii) at least once every five years during the period commencing 5 years from the date of these orders and ending 20 years from the date of these orders,

(b) cause the structures and works required to be installed by order 4 to be inspected by a person experienced in the maintenance of such structures at least once each year for a period of 20 years following the date of these orders;

(c) by not later than the end of each year during which an inspection is required by (a) or (b) to be carried out by a geotechnical engineer, registered bush regenerator or other experienced person as relevant, cause the person so engaged to prepare a report regarding the inspection of those structure/s and works, such report to specify any measures necessary to be implemented to maintain the structure/s and works in a proper and efficient condition; and

(d) within 14 days of the end of each year in which a report is required to be prepared by a registered bush regenerator, geotechnical engineer or other experienced person as relevant, submit to the Manager, Sydney Waste, Environment Protection Authority a copy of the Report.

6. Following installation of the structures and works required to be installed by orders 1 and 3 until the date 20 years from the date of these orders, maintain those structures and works in a proper and efficient condition.

7. Following installation of the structures and works required to be installed by order 4 until the date 20 years from the date of these orders, maintain those structures and works in a proper and efficient condition.

Rehabilitation of the Affected Creek

8. Within 6 months of the date of these orders:

(a) cause the artificial embankment to be removed; and
(b) following removal of the artificial embankment, cause to be planted in the area from which the artificial embankment has been so removed, suitable indigenous species such as Calicoma seratifolia and Syncarpia glomulifera.

9. Within 6 months of the date of these orders:

(a) to the extent reasonably practicable having regard to the need for the protection of the regrowth of indigenous species, cause all weeds present in and about the affected creek (including in the riparian zone and on its banks) to be removed by a registered bush regenerator; and

(b) to the extent reasonably practicable having regard to the need for the protection of the regrowth of indigenous species, cause to be removed by a registered bush regenerator, all non-indigenous material (including any non-indigenous soils and sediments) deposited in and about the affected creek (including in the riparian zone and on its banks).

10. Following the expiry of the period of 6 months after the date of these orders,

And once every three months thereafter, ending 30 months after the date of these

orders, cause:

(a) a survey to be conducted by a registered bush regenerator of the affected creek to identify any new weeds in and about the affected creek (including in the riparian zone and on its banks); and

(b) to the extent that it is reasonably practicable, cause a registered bush regenerator to remove any newly existing weeds in and about the affected creek (including in the riparian zone and on its banks).

11. Following the expiry of the period of 6 months after the date of these orders, once each year ending on the date 5 years and 6 months after the date of these orders,

cause a registered bush regenerator to inspect the affected creek and

prepare a report specifying:

(a) the incidence (or otherwise) of weeds in and about the affected creek (including in the riparian zone and on its banks); and
(b) such reasonably practicable measures (if any) as are, in the opinion of the bush regenerator, necessary so as to prevent the recolonisation of new weeds in and about the affected creek (including in the riparian zone and on its banks); and
(c) the manner in which those measures (if any) should be carried out.

12. Cause a copy of each report prepared in accordance with order 10 to be submitted to the Manager, Sydney Waste, Environment Protection Authority, within 14 days following preparation of the Report.

13. During the period commencing 6 months from the date of these orders and expiring 5 years and 6 months from the date of these orders, so far as is reasonably practicable, cause the affected creek to be maintained in a weed free condition.

14. There be liberty to the parties to apply in relation to these orders on 14 days written notice.

In these orders:

"affected creek" means the section of the creek, being the creek which runs in a generally east/west direction from the toe of the embankment to the confluence of that creek with the creek marked SS, being the creek so referred to on page 166 to the affidavit of Paul John Anink sworn 28 October 2000 and filed in these proceedings.

“artificial embankment” means so much of embankment located adjacent to the affected creek on its southern bank, approximately 50 metres downstream of the existing retaining wall as shown on the Barrie Green survey dated 28 February 2000 as comprises non-indigenous materials.

"embankment” means the landfill embankment at the premises;

"Manager Sydney Waste, Environment Protection Authority" means, the person occupying that position from time to time, or if no such position exists, the person occupying the position of Director-General, Environment Protection Authority.

“premises" means lot 204, Old Northern Road, Glenorie

"registered bush regenerator" means a bush regenerator registered as such with the Australian Association of Bush Regenerators.

“retaining wall" means the existing retaining wall for the embankment.

“scour protection works" means works determined as necessary by a suitably qualified geotechnical engineer to ensure water cascades from the stilling basin in such a way as not to cause significant erosion of the natural hillside.

"sediment and nutrient catch basin" means a catch basin, the design of which has been determined by a person experienced in the design of such structures, that is suitable to collect:

(a) the leachate emanating from the embankment; and

(b) the liquid exiting from the pipe that passes through the toe of the embankment into the affected creek.

“spillway" means the existing spillway for the embankment.

"stilling basin" means the energy dissipating basin located in the position marked on the survey of Barrie Green dated 28 February 2000.

"suitably qualified geotechnical engineer" means a specialist geotechnical engineer experienced in dams engineering.

“support structure/s” mean structure/s, the design of which has been determined by a suitably qualified geotechnical engineer to:

(a) be suitable to prevent the collapse of the overstep cut faces of the zig zag track; and
(b) not be such as will prevent or inhibit free vehicular access to the embankment toe by encroachment of the structures onto the zigzag track.

"weeds" means plant species that are not indigenous to the environment of the affected creek.

"zig-zag track" means the existing zig-zag track leading from the crest of the embankment to the toe of the embankment.

……………………………

Solicitor for the Prosecutor

by Stuart Simington (employed solicitor)

Dated: 29 January 2001

TO: MICHAEL JEFFREY WAIGHT

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