Knowles v Maradono Pty Limited

[1989] NSWLEC 167

Land and Environment Court

of New South Wales

CITATION:

Knowles v Maradono Pty Limited [1989] NSWLEC 167

PARTIES:

APPLICANT
Knowles

RESPONDENT
Maradono Pty Limited

FILE NUMBER(S):

50019 of 1987

CORAM:

Stein J

KEY ISSUES:

:-

LEGISLATION CITED:

Clean Waters Act 1970

CASES CITED:

DATES OF HEARING:

DATE OF JUDGMENT:

03/09/1989

LEGAL REPRESENTATIVES:

JUDGMENT:

HIS HONOUR: The defendant company, Maradono Pty. Limited, pleads guilty to an offence that on 11 March 1987 it did pollute waters of the Horseshoe lagoon, Bedgerebong, contrary to s.16(1) of the Clean Waters Act, 1970.

The prosecutor, Terrence John Knowles, is a pollution control inspector with the State Pollution Control Commission. On 11 March 1987 he went to the defendant's property 'Kaloola' at Bedgerebong via Forbes. At the time the defendant carried on an intensively housed piggery on the property.

The prosecutor observed piggery waste being discharged from four sheds and flowing along a network of drains into the Horseshoe lagoon. The lagoon was then about three quarters full with water. At the point of discharge into the lagoon the flow of waste was estimated at 20 litres per minute. Mr. Knowles took a sample which was analysed by a senior technical officer at the Commission. The biochemical oxygen demand (BOD) was found to be 1,500 milligrams per litre and the total non-filterable residue l,l00 milligrams per litre.

Mr. Knowles spoke to a Mr. Hoffman, the Manager of the piggery. The Manager intimated that discharge of wastes into the lagoon was continuing to occur because a pump was still awaiting delivery. The pump, ordered some 7 months earlier, was, according to Mr. Hoffman, not expected for another 7 weeks.

The prosecutor took a series of photographs which showed a partially constructed treatment system, and piggery waste flowing down a channel and directly into the lagoon. Large quantities of waste was obvious in the drain and formed an extensive delta at the point of entry into the lagoon.

Mr. Knowles did not observe any fish life in the lagoon but noted algae growing around the edges of the lagoon and on the delta formed by masses of pig waste. He also noted a distinct bad odour which he described as like piggery faeces.

The defendant apparently purchased the property in late 1984 and operated it as a piggery, (housing at the relevant time some 1,100 sows, pigs and piglets), until around July or August 1987. The prosecutor had previously visited the premises in April 1985 and a notice under the Clean Water regulations was served on the defendant in June 1985 requiring a number of steps to be taken within 60 days. These included a requirement to cease all discharges of piggery waste.

According to the defendant, construction of an effluent system commenced in August 1985 after upgrading of the piggery itself. The cost of the system was considerable and its completion was dogged by delays. So much so that the system was not finished until late 1985 and not operational until January 1986. However, even then the final pump installation was not completed until July 1987.

In the meantime, and it appears from late 1984, piggery wastes continued to be discharged into the lagoon. The effluent disposal system, according to the defendant, only became fully operational in July 1987 when the piggery closed. The closure occurred for reasons associated with the question of existing use rights and the inapplicability of the zoning of the land to piggery operations. Apparently there was litigation in the Supreme Court between the defendant and the local council.

The Horseshoe lagoon is an anabranch or cowl of the Lachlan River and flows seasonally depending upon adequate rainfall. It is said to be typical of many lagoons and billabongs in the area. These, including the Horseshoe lagoon, are important areas for fish breeding, including the Murray Cod. The lagoon is also an important breeding ground for food organisms for larger fish and other fauna. It is also said to be an important area for the life cycle of a variety of waterfowl and ducks.

The biochemical oxygen demand of unpolluted water streams is usually 5 milligrams per litre or less, and the total non-filterable residue is usually 10 milligrams per litre or less in unpolluted water streams. The sample analysis taken from the lagoon on 11 March 1987 reveals a BOD of some 300 times that in unpolluted waters. It also reveals a total non-filterable residue in access of 100 times that of unpolluted waters. The latter is a measure of the total suspended solids in the water. Such a result would inevitably lead to damage to the ecological balance in the lagoon.

The BOD gives information on the oxygen required by water for biochemical degradation of any organic constituents in association with micro organisms. The effect of the depletion in the level of dissolved oxygen in the water reduces the ability of aquatic organisms to meet the demands of their environment.

It is apparent from the evidence lead by the prosecutor that the depletion of dissolved oxygen caused by the high biochemical oxygen demand in the lagoon could result in the death of animal life and interference with the life cycles of animals in the lagoon. The extent of non-filterable residue could also kill organisms by blanketing the bed of the lagoon and result in the reduction of light penetration, thus interfering with the growth of flora and fauna in the lagoon.

However, there does not appear to be any evidence of injury or danger to the health of humans. Further, the fact that the lagoon is not always a permanently flowing water course, but subject to rainfall and seasonal conditions, is of relevance to life in the lagoon.

Nevertheless, the offence is a serious one and the explanations in mitigation are not at all convincing. It appears that the defendant was slow to act to comply with reasonable and proper requirements of the Commission. When it did act, the completion of the system, (at considerable cost), took some 23 months.

In assessing the appropriate penalty to impose I take account of the fact that the prosecutor does not seek the imposition of a continuing penalty and the piggery apparently closed in around July or August 1987. I also note the maximum penalty imposed on a corporation for a breach of s.16 is $40,000. Costs of the prosecutor have been agreed at $3,000.00.

Taking into account all of the relevant circumstances, including the fact that the offence will not be repeated, I conclude that the appropriate penalty to impose on the defendant is $5,000.00.

The defendant is therefore convicted of an offence that contrary to the provisions of s.16(1) of the Clean Waters Act it did on 11 March 1987 pollute the waters of Horseshoe lagoon at Bedgerebong.

The defendant is ordered to pay a penalty of $5,000.00. The fine is to be paid to the Registrar of the Court on or before 10 April 1989. The defendant is ordered to pay costs of $3,000.00 to the Crown Solicitor on or before 10 April 1989. The exhibits may be returned.