Farrell v Alkair Limited

[1989] NSWLEC 209

Land and Environment Court

of New South Wales

CITATION:	Farrell v Alkair Limited [1989] NSWLEC 209
PARTIES:	APPLICANT Farrell RESPONDENT Alkair Limited
FILE NUMBER(S):	50033; 50034; 50035; 50071 of 1989
CORAM:	Stein J
KEY ISSUES:	:-
LEGISLATION CITED:	Waste Disposal Act, 1970
CASES CITED:
DATES OF HEARING:
DATE OF JUDGMENT:	06/23/1989
LEGAL REPRESENTATIVES:	RESPONDENT Mr. Preston

JUDGMENT:

HIS HONOUR: The defendant Alkair Limited pleads guilty to four charges brought under s.22(1) of the Waste Disposal Act, 1970 in that it did on various dates and at various places occupy a depot which was not the subject of a Certificate of Registration under that Act.

More specifically:-

Summons No. 50035/89 alleges an offence on 13 October 1988 at premises situate at 94 Epsom Road, Zetland.

Summons No. 50034/89 alleges an offence on 14 October 1988 at premises situate at Lot 51 Hill Road, Lidcombe.

Summons No. 50033/89 alleges an offence on 22 October 1988 at premises situate at Broughton Street, Canterbury, and

Summons No. 50071/89 alleges an offence on 14 December 1988 at the same Canterbury premises.

Section 22(8) of the Act provides for a maximum penalty of $5,000.

The Zetland premises

These premises were inspected by inspectors of the Metropolitan Waste Disposal Authority on 13 October 1988. The premises were being used to store some 60 waste bins. 30 x 43 bins were observed to contain waste and 30 x 43 bins were empty. The site was generally in a messy state with rubbish strewn around the area. Photographs tendered in evidence graphically depict this state of affairs. A further inspection was carried out the next day when some 30 odd bins were seen, some empty and some containing rubbish. The premises were marginally less untidy. On 18 October 1988 Inspector Austin returned to the premises and reported that they were considerably cleaned up. While there were still 2 bins on the premises, they were empty. On 25 October 1988 Mr. Stephenson, the Manager of Alkair Ltd., trading as Mini Skips Australia, stated that there were still bins being used by Beaurepaires to clean up the site before they moved out. Mr. Stephenson told the Authority that the site had been used to transport wastes for st

orage.

The Lidcombe premises

On 14 October 1988 inspectors of the Authority visited premises at Lot 51 Hill Road, Lidcombe. Approximately 20 mini skip bins were observed on the premises, several containing waste material. Again photographs reveal the nature of the premises, the skips and waste material. On 17 October 1988 the premises were again visited and some 10-12 mini skips were observed containing waste, as were several empty containers. Mr. Stephenson was interviewed and advised the inspector that the bins would be removed that afternoon. By the 25 October 1988 it appears that this site was cleaned up. Mr. Stephenson told the Authority that the site had been used for storage of waste prior to its removal to a transfer station.

The Canterbury premises

On 22 October 1988 an inspector from the Authority went to premises at Broughton Street, Canterbury. He observed 46 x 33 mini skip bins stored on the premises, some 35 of which were full of builders' rubbish. The site was very messy with rubbish and waste spilt all over the area. Photographs again reveal a most unsightly situation. When interviewed on 25 October 1988 Mr. Stephenson stated that "the drivers have been directed to cease using the site, it is being cleaned up". However, on 14 December 1988 the site was again inspected and 15 x 43 bins and 2 x 63 bins were found to be stored at the south-western end of the premises. The 15 bins were full of general builders' rubbish. A gate was open and the area was extremely untidy and messy with wind blown litter scattered around.

The defendant's case is that the branch manager, Mr. Stephenson, did not pass on to senior management any of the concerns of the Metropolitan Waste Disposal Authority. Mr. Stephenson ceased his employment on 23 March 1989 when Mr. Burn took over as manager. Mr. Burn did not become aware of the Authority's investigations until 21 April 1989 when the summonses were served. Mr. Burn immediately instructed drivers to go to the sites and remove any full containers and not to use the sites for storage of waste materials. The drivers were sub-contractors. Mr. Burn says that later visits to the sites by him have not revealed any breaches of his directions. Mr. Burn also met with the prosecutor and acquainted himself with the requirements of the law. Containers are now taken immediately to licensed tips and no full containers are stored at any site. Mr. Preston, on behalf of the defendant, makes the point that the premises were being used for storage and not for treatment or disposal of waste and the environmental har

m was visual only.

The defendant's business involves the transporting of dry, non-toxic waste materials - mostly building materials and garden refuse. Most of the company's customers are builders. The company does not transport putrescible waste. It is the defendant's contention that the situation will not be repeated.

I take account of the evidence in mitigation and the fact that the company has no prior convictions in New South Wales or elsewhere in Australia where it operates. Nonetheless the offences are serious. It appears that the defendant was using various unlicensed premises for the storage of large amounts of builders' waste either in ignorance or disregard of its obligations under the Waste Disposal Act. Large quantities of waste material was involved at 3 different sites in the metropolitan area. All of the premises were very unsightly. Some efforts were apparently made to tidy up the Zetland and Lidcombe premises. However, contrary to the former manager's statement that the Canterbury premises would be cleaned up and cease to be used for storage, it appears that they still were so used as late as 14 December 1988. Indeed, it seems that no positive action was taken by the defendant until late April 1989 after the summonses were served. In the meantime Mr. Stephenson had ceased to be the Division Manager. I am sa

tisfied that the defendant has instituted management steps to see that it does not again breach the requirements of the Act.

Taking account of all the circumstances it seems to me that the defendant should be fined $1,000.00 for each offence committed on 13 October 1988 (Zetland), 14 October 1988 (Lidcombe) and 22 October 1988 (Canterbury). However, in my opinion a considerably more severe penalty is warranted for the offence of 14 December 1988 at the same Canterbury premises. The defendant must accept responsibility for its former manager's conduct. For this offence I conclude that the appropriate penalty is a fine of $3,000.00.

The Prosecutor's costs are agreed at $2,768.00 and the defendant will be ordered to pay those costs.

The defendant is convicted of each of the offences charged under the Waste Disposal Act. The defendant is ordered to pay a penalty of $1,000.00 in respect of each of the offences 50033/89, 50034/89 and 50035/89. The defendant is further ordered to pay a penalty of $3,000.00 in respect of the offence 50071/89.

I order that the fines, in total $6,000.00, be paid to the Registrar of the Land and Environment Court on or before 23 July 1989 to be dealt with according to law.

I further order that the defendant pay the prosecutor's costs in the sum of $2,768.00, on or before 23 July 1989, to the Crown Solicitor on behalf of the prosecutor.