Hair v Sydney Harbour Tunnel Company Limited

[1989] NSWLEC 177

Land and Environment Court

of New South Wales

CITATION:	Hair v Sydney Harbour Tunnel Company Limited [1989] NSWLEC 177
PARTIES:	APPLICANT Douglas Hair RESPONDENT Habour Tunnel Company Limited
FILE NUMBER(S):	50019-48 of 1988
CORAM:	Cripps J
KEY ISSUES:	:-
LEGISLATION CITED:	Clean Wtaers Act 1970 State Pollution Commisssion Act
CASES CITED:	Nicolaisen v. Coalcliff Colleries Pty Ltd (1984)
DATES OF HEARING:
DATE OF JUDGMENT:	04/05/1989
LEGAL REPRESENTATIVES:

JUDGMENT:

His Honour: The Sydney Harbour Tunnel Company Limited (the Company) is charged with three offences under the Clean Waters Act and three offences under the State Pollution Control Commission Act. It has pleaded guilty to all six charges. Specifically, it has pleaded guilty to charges that on 11, 13 and 14 April 1988 it polluted the waters of Sydney Harbour in breach of s.16 of the Clean Waters Act and that on 11, 13 and 14 April 1988 in breach of a licence issued to it pursuant to the State Pollution Control Commission Act it contravened a condition of its licence.

Section 16(1) of the Clean Waters Act provides:

"A person shall not pollute any waters or cause or permit any waters to be polluted".

Section 16(6) of the Clean Waters Act provides that if a polluter holds a licence to pollute and does not pollute in contravention of the conditions of the licence, no offence under s.16(1) is committed. The maximum penalty for an offence under s.16(1), in respect of a corporation, is $40,000 for each offence.

Section 17A of the State Pollution Control Commission Act permits a person to apply to the Commission for a licence in respect of, inter alia, the pollution of waters within the meaning of the Clean Waters Act 1970. Section 17D empowers the Commission to grant a licence either subject to conditions or unconditionally. Section 17D(9) provides that any person, being the holder of the licence, contravening a condition of that licence is liable, in the case of a corporation, to a penalty not exceeding $40,000 for each offence.

A licence was issued to the Company on 30 March 1988 in force until 30 April 1988. The licence contained the following conditions:

"2. Coffer dam construction area dam shall be totally enclosed by means of a floating boom adequately secured at two points on the shoreline in such a manner as to allow it to rise and fall with tidal movement.

3. The boom (referred to in condition number 2 above) shall be equipped with a curtain, securely attached to the boom and extending a minimum 2 metres below the surface of the water".

It was also a requirement of the licence that the boom and curtain be positioned no further than 20 metres from the proposed final alignment of the coffer dam wall.

The Company is the corporate successor to the Sydney Harbour Tunnel Joint Venture. For present purposes it is sufficient to note that the joint venturers were Transfield Pty. Limited and Kumagai Company Limited. The actual work being undertaken at the time the offences were committed was undertaken by Thiess Bros. Pty. Limited. I mention these facts only to demonstrate that the Company itself and corporations undertaking work for the Company were experienced in major construction projects.

It is common ground that on 11 April 1988 there was no boom or curtain in place as required by the licence conditions and that on 13 and 14 April the boom and curtain, although generally in position, did not enclose the area satisfactorily. As a result, sandstone fines were deposited in the Harbour causing the waters to become turbid. The case has been conducted upon the basis that the sole purpose of the SPCC as licensing authority was to reduce adverse visual impacts of turbid water in Sydney Harbour and it was not intended that the fines be wholly contained within the area enclosed by the boom because the conditions did not require the curtain to be beyond 2 metres below the surface. If the boom and curtain was in position and functioning properly, some turbidity, outside the enclosed area, would have been visible from, for example, the walkway over the Harbour Bridge.

The Company submits that, notwithstanding the dumping of material into the Harbour, there was no environmental damage other than temporary adverse visual impact. It called evidence to the effect that 31,000 tonnes of siltation pollution is deposited upon the bed of the Harbour each year. I am asked to infer, I assume, that the amount illegally dumped by the Company is insignificant by comparison. I am not prepared to assume that 31,000 tonnes of siltation has no adverse impact and I do not know how much material was illegally deposited by the Company. It is therefore not possible to draw any relevant inferences (favourable or unfavourable) to the Company by this fact alone. More relevantly, however, in the Company's favour I have regard to the circumstance that the Company was given permission to pollute the Harbour within a confined area and it is accepted by the SPCC that the Company's illegal activities had no adverse consequences greater than those which were permitted by the licence. Accordingly, I appro

ach the case upon the basis that the environmental damage over the three days was limited to temporary adverse visual impact.

To the forefront of the Company's case in mitigation of penalty is the submission that the SPCC knew throughout 1987 that the Company would be constructing a coffer dam on the water adjacent to Bradfield Park and that the construction of such a dam would necessarily involve the deposit of large quantities of material into the Harbour. It relies on the fact that it sought and received approvals from the SPCC pursuant to ss. 17I and 17K of the State Pollution Control Commission Act for pollution control. The Company submits that the SPCC knew all about its proposed activities and that it knew that its advice was being relied upon as to what appropriate steps the Company should take. It says that it was not aware that the dumping of many tonnes of material into Sydney Harbour would constitute an offence under s.16(1) of the Clean Waters Act in the absence of a licence granted pursuant to the State Pollution Control Commission Act and that the SPCC never told it that it was.

It asks me to infer that the SPCC encouraged the Company to believe that it could continue the work of building the coffer dam with the inevitable dumping of material into the Harbour provided only it applied for a licence. It relies on a telephone conversation from an officer of the SPCC on 25 March 1988 (which was about two days after the work on the coffer dam commenced) in which the Company was told that it did not have a licence to place material in the Harbour and that the Commission would give it permission to place a "float boom" around the area where the material would be dumped. In particular, the Company relies on the statement attributed to Mr. Train, an officer of the SPCC, in which it is alleged he said "If you don't get a boom in place quickly, we might have to order you to stop work" as evidence that the Commission had no objection to the work being undertaken provided only that at some time in the reasonably near future a boom was placed around the said dam. Further, it submits that the Commi

ssion's attitude in this regard was made obvious by the notice given to the Company towards the middle of April 1988 (referred to as a "Regulation 21 Notice") which required it to do work on the boom to make it effective.

In all these circumstances, I am asked to apply the provisions of s.556A of the Crimes Act. Reliance is placed on a decision of the Court in Nicolaisen v. Coalcliff Collieries Pty. Limited (18 June 1984 unreported). I do not think it appropriate to apply the provisions of s.556A of the Crimes Act in the present case. I do not regard the offences generally or indeed any one of them as insignificant. The facts in Nicolaisen's case are entirely different to the facts in the present case. The circumstances leading up to the commission of the offences in the present case do not even remotely approach those dealt with by the Court in Nicolaisen. I do not think the Company gains any comfort at all from the circumstance (if it be the fact) that the SPCC's conduct led it to believe it did not need to apply for a licence in order to avoid the liability it would otherwise incur by dumping material into the Harbour. The obligation was on the Company to ensure either that it did not pollute the Harbour or that it had a li

cence to pollute the Harbour and it conducted its activities in accordance with the conditions of that licence.

But in any event, I am not satisfied that the SPCC misunderstood its statutory obligations or misled the Company. Reliance has been placed upon the circumstance that application was made by the Company to the Commission for pollution control approval pursuant to s.17I of the State Pollution Control Commission Act 1970. Section 17I provides that the Commission may grant such an approval to do things specified in, inter alia, s.19(1)(a) of the Clean Waters Act 1970. Section 17I does not refer to s.16 of the Clean Waters Act. The SPCC never told the Company it could pollute without a licence. I do not think its conduct led the Company to believe it could pollute the Harbour without a licence. But even if it did, that, in my opinion, would not excuse the Company in the circumstances of this case. It must have been as plain as a pikestaff to the Company that it was polluting the Harbour by constructing the coffer dam. I reject the submission that because the SPCC did not seek to compel the Company not to break the

law that, in some way, is a mitigating factor. The circumstance (if it existed) that the SPCC itself believed that the dumping of the material into the Harbour was not polluting the Harbour or that it would turn a blind eye has almost negligible relevance in the present case. If either allegation were true, it may reinforce conclusions expressed elsewhere that the enforcement of environmental laws ought not be left solely to established regulatory authorities. But it cannot mean that people who break the law can shelter behind the failure of the SPCC to discharge its function. As I have said, I am not satisfied in the present case there was any failure of the SPCC in the discharge of its functions. But I make it plain that even if there were, that would not excuse the conduct of the Company nor or should it be used in mitigation of a penalty otherwise appropriate.

On 11 April 1988 the Company knew that it was polluting the Harbour because it had not installed the boom and the curtain. On 13, and again on 14, it knew that it was in breach of the licence conditions because, as was obvious to it, the boom and the curtain were not working efficiently. When questioned about the matter in April 1988, a suggestion was made by an officer of the Company that the boom was damaged by a boat. However, that excuse was not pursued in these proceedings. The inference I draw is that the Company elected to continue building the coffer dam on 11, 13 and 14 April even though it knew that what it was doing was illegal. However, I take account of the fact that the environmental damage was temporary and visual only. The maximum fine is $40,000 for each offence. In my opinion, I think I should have regard to the circumstance that the Company was licensed to pollute and that the breaches, essentially, were that it failed adequately to comply with the conditions of its licence. That is to say,

I do not think it appropriate to impose a separate penalty (otherwise than nominally) for breaches of s.16 of the Clean Waters Act because the real offences were the failure to comply with the licence issued under the State Pollution Control Commission Act. Nonetheless, I think three separate offences were committed. The most serious was committed on 11 April when no boom or curtain was in position at all. The offences on 13 and 14 are also serious because the Company was polluting knowing that the boom and curtain were not properly positioned. As I have said, these were deliberate breaches by the Company of the conditions of its licence. In my opinion, three separate offences were committed and I impose the following penalties.

For the offence under the State Pollution Control Commission Act (matter No. 50021) on 11 April $10,000.00

For offences on 13 and 14 April

(Matters Nos.: 50023 and 50024) 7,000.00 ea

All other offences (Matters Nos.: 50019,

50020 and 50021) 10.00 ea

I order the fines in total $27030.00 to be paid to the Registrar of the Land and Environment Court to be dealt with according to law. I further order the sum of $2979.00 be paid to the Crown Solicitor to be paid to the Prosecutor. Furthermore, the fines and costs to be paid within 28 days.