Lismore City Council v Ihalainen
[2013] NSWLEC 149
•12 September 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Lismore City Council v Ihalainen [2013] NSWLEC 149 Hearing dates: 20 August 2013 Decision date: 12 September 2013 Jurisdiction: Class 5 Before: Pain J Decision: 1. The charges specified in par 5 - 15 of the summons relating to an alleged clean-up notice dated 9 July 2012 are summarily dismissed.
2. Costs are reserved.
Catchwords: PROSECUTION - several charges of failure to comply with clean-up notice - notice of motion seeking summary dismissal of charges for failure to comply with clean-up notice - failure by council to afford procedural fairness to defendant before clean-up notice issued - charges dismissed Legislation Cited: Criminal Procedure Act 1986 s 247G
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979 s 23
Protection of the Environment Operations Act 1997 s 91Cases Cited: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Gray v Woollahra Municipal Council [2004] NSWSC 112
Liverpool City Council v Cauchi [2005] NSWLEC 675; (2005) 145 LGERA 1
Precision Products (NSW) Pty Ltd v Hawkesbury City Council [2008] NSWCA 278; (2008) 74 NSWLR 102
Ryding v Kempsey Shire Council [2008] NSWLEC 306
Twist v Randwick Municipal Council (1976) 136 CLR 106Texts Cited: Thomson Reuters, Environmental Responsibilities Law NSW Service, Vol 1, July 2013 Category: Interlocutory applications Parties: Lismore City Council (Prosecutor)
Jari Ihalainen (Defendant)Representation: Mr I Lloyd QC with Mr S Nash (Prosecutor)
Mr T Howard (Defendant)
McCartney Young Lawyers (Prosecutor)
Mallik Rees Lawyers (Defendant)
File Number(s): 50172 of 2013
Judgment
The summons in matter no 50172 of 2013 identifies 11 charges of failing to comply with a clean-up notice dated 9 July 2012 issued by the Council (the second clean-up notice). The notice related to the building of an access track on the Defendant's property in Town Road, Terania Creek (DP 1025898, lot 2) (the land). An earlier clean-up notice dated 24 May 2012 in relation to the road work on the land was also issued (the first clean-up notice). The Notice of Motion dated 20 June 2013 before me seeks an order of summary dismissal of charges 5 - 15 in the summons. Other pollute waters charges will remain if the motion is successful. The basis for the motion is the failure of the Council to afford procedural fairness to the Defendant as no notice of the second clean-up notice was provided to the Defendant before it was issued. The Council accepts that the Court has power to make an order for summary dismissal under s 23 of the Land and Environment Court Act 1979 (the Court Act).
The Defendant has been granted development consent DA 2005/842 which includes consent for building an access track on the land. I was informed that where the access track is built the land is steeply sloping down to a watercourse in some sections.
As the Defendant submitted, it is open to a defendant to mount a collateral challenge to the validity of a statutory direction in defence of a criminal charge for alleged contravention of that statutory direction: Gray v Woollahra Municipal Council [2004] NSWSC 112 at [51] - [112]; Liverpool City Council v Cauchi [2005] NSWLEC 675; (2005) 145 LGERA 1 at [41]-[42].
A clean-up notice may be issued under s 91 of the Protection of the Environment Operations Act 1997 (the PEO Act). Section 91 provides:
91 Clean-up by occupiers or polluters
(1) Notices
The appropriate regulatory authority may, by notice in writing, do either or both of the following:
(a) direct an occupier of premises at or from which the authority reasonably suspects that a pollution incident has occurred or is occurring,
(b) direct a person who is reasonably suspected by the authority of causing or having caused a pollution incident,
to take such clean-up action as is specified in the notice and within such period as is specified in the notice.
...
(3) Reports
The clean-up notice may require the person to whom the notice is given to furnish reports to the appropriate regulatory authority regarding progress on the carrying out of the clean-up action.
...
(5) Offence
A person who, without reasonable excuse, does not comply with a clean-up notice given to the person is guilty of an offence.
Maximum penalty:
(a) in the case of a corporation-$1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or
(b) in the case of an individual-$250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.
Pollution incident is defined in the dictionary to the PEO Act as:
... an incident or set of circumstances during or as a consequence of which there is or is likely to be a leak, spill or other escape or deposit of a substance, as a result of which pollution has occurred, is occurring or is likely to occur. It includes an incident or set of circumstances in which a substance has been placed or disposed of on premises, but it does not include an incident or set of circumstances involving only the emission of any noise.
Clean-up action is defined as:
clean-up action, in relation to a pollution incident, includes:
(a) action to prevent, minimise, remove, disperse, destroy or mitigate any pollution resulting or likely to result from the incident, and
(b) ascertaining the nature and extent of the pollution incident and of the actual or likely resulting pollution, and
(c) preparing and carrying out a remedial plan of action.
The principles in relation to failure to afford procedural fairness are agreed by the parties and I can repeat these from the Defendant's submissions. The obligation to afford procedural fairness to the recipient of a clean-up notice under s 91 of the PEO Act is an incident of the exercise of power under s 91 of the Act: Precision Products (NSW) Pty Ltd v Hawkesbury City Council [2008] NSWCA 278; (2008) 74 NSWLR 102 at [155] (negligence suit); Cauchi at [34] - [36]. The content of the duty to afford procedural fairness to individuals will vary depending on the relevant circumstances of the case Precision Products at [155] - [156]; Cauchi at [49] - [51]. Relevant circumstances will include the seriousness of any pollution event and the immediacy of the alleged threat. However, if significant affectation of the business of a party will be required and no apparent imminence of any particular pollution incident is apprehended, prudence and fairness would dictate a clear enunciation of the concerns of the issuing authority prior to the issuing of the notice: Precision Products at [156].
There was considerable discussion during the hearing about who bears the onus of proof of establishing whether procedural fairness was afforded to the Defendant. This was linked in the Council's submissions to the submission that the principles applicable to summary dismissal applications, as identified in Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at 575 to the effect that such a power must be exercised with caution, should be considered in this case. I advised at the end of the hearing that applying an onus of proof, however framed, to the issue of the satisfaction of whether procedural fairness was afforded is an odd fit. Consequently I do not intend to canvass the argument about onus of proof as it is not helpful in concluding this matter. I will determine if I am satisfied in the circumstances of this case whether procedural fairness was afforded to the Defendant by the Council. This was the approach taken in Cauchi and Ryding v Kempsey Shire Council [2008] NSWLEC 306 both of which considered the same question.
Evidence
The Council filed a statement of facts and bundle of documents which was supplemented by two affidavits the Defendant agreed could be read only for the purposes of the motion being considered. The Defendant tendered Council policy documents referred to in the affidavit of Mr Graeme Bailey dated 5 March 2013 including a letter dated 27 July 2012 from the Defendant to Mr Bailey seeking particulars about the second clean-up notice and rainfall data for the surrounding area for May, June and July 2012. Mr Bailey is a compliance officer employed by the Council. A bundle of documents referred to in the second clean-up notice was tendered by the Defendant which included the NSW Rural Fire Service Planning for Bushfire Protection 2001 Chapter 4, the Council's Vehicular Access Policy and three manuals including the Northern Rivers Local Government Development and Design Manual, section D7 Erosion and Control and Stormwater Management, Northern Rivers Local Government Construction Manual sections C211 and C220 and Department of Water and Energy Guidelines for Controlled Activities: Watercourse Crossings and In Stream Works.
The affidavit of Graeme Bailey was read. Mr Bailey states that he attended the land on 22 May 2012 following a complaint received by the Council regarding alleged unlawful road construction works. From his initial research Mr Bailey determined the reported road works may be being undertaken without the required consents or other than in compliance with a consent. Mr Bailey observed that an extensive amount of excavation works were being conducted on the side of a steep escarpment. He noticed that no sediment and erosion controls had been installed at any location.
On the morning of 23 May 2012 Mr Bailey had a telephone conversation with Mr Ihalainen to the effect that Mr Bailey was concerned that there were no sediment and erosion controls which should be in place at all times whether it was raining or not. Mr Bailey requested Mr Ihalainen to stop the construction works until the sediment and erosion controls were installed. Mr Ihalainen agreed and said he would put the controls in place by the following afternoon. Mr Bailey then said that Council would be sending Mr Ihalainen some correspondence in relation to this matter and would be out to ensure the controls are constructed.
Mr Bailey attended the land on 24 May 2012 when he said to Mr Ihalainen that he was there to inspect the installation of the erosion and sediment controls and to give him a clean-up notice. At this time Mr Bailey was concerned whether the track satisfied the standards required by s 4.3.3 of the NSW Rural Fire Services Planning for Bushfire Protection 2001, whether it complied with the conditions of development consent to DA 2005/842, whether the sediment and erosion control fences being installed conformed with section D7 of the Northern Rivers Local Government Development and Design Manual, and the Council's guidelines for the control of soil erosion and sediment on building and development sites. Mr Bailey considered that the sediment and erosion control measures he observed being installed would not be effective long term solutions.
Between 28 May 2012 and 1 June 2012 a number of emails passed between Mr Bailey and Mr Ihalainen including a sediment and erosion control plan prepared by Orchard Floor Protection Service dated 31 May 2012. Mr Bailey consulted with Council's development engineers, including Mr Lacey, and came to the view that the sediment and control plan was inadequate to address the requirements of the first clean-up notice. This was communicated to Mr Ihalainen on 1 June 2012 with a request for more detailed sediment and erosion control works.
On 4 June 2012 Council received four plans from Mr Ihalainen. Mr Bailey believed these plans did not address the necessary issues on large sections of track. Mr Bailey sent Mr Ihalainen a "show cause" letter dated 7 June 2012. On 12 June 2012 Mr Ihalainen responded to this letter. Council did not receive any further information to show that the unacceptable elements of the sediment and erosion control plan had been addressed. On 21 June 2012 Council received an email from Mr Kennedy, a principal of Tricend Design and Engineering, attaching a plan which in Mr Bailey's opinion was substandard. Mr Bailey believes that no serious attempt was made to address the requirements of the first clean-up notice.
On 27 June 2012 Mr Bailey and Mr Lacey attended the land to conduct a planned meeting with Mr Kennedy whilst it was raining. Mr Ihalainen had emailed Mr Bailey saying that because it was raining he was attempting to reschedule. Mr Bailey did not receive this email. Mr Bailey decided to conduct an inspection in any case to determine the effectiveness of sediment and control measures put in place. Mr Bailey observed that the installed controls were not operating in a manner that captured the sediment transported in the stormwater and protected the environment. Mr Bailey took water samples.
After this inspection Mr Bailey, Mr Lacey, Mr Kennedy and Mr Ihalainen conducted another inspection on 6 July 2012. Mr Bailey recalled that Mr Lacey advised Mr Kennedy and Mr Ihalainen what issues should be addressed and suggested solutions. On Mr Bailey's return to the office he drafted a plan of the land and detailed the issues raised at the on-site meeting. This plan was reviewed by Mr Lacey and emailed to Mr Kennedy and Mr Ihalainen on 9 July 2012.
At a later meeting with Council's development engineers (including Mr Lacey), Environmental Health Coordinator and the Manager of Development and Compliance it was concluded that the sediment and erosion control plans supplied to Council had not satisfactorily addressed the requirements of the first clean-up notice. It was decided that a second clean-up notice should be issued in an attempt to compel compliance with Council's requirements. This was issued on 9 July 2012. Amongst the factors that were considered by Mr Bailey in deciding to issue the second clean-up notice were the occurrence of a pollution event comprising the entry of sediment laden water into the watercourse located on the land because of inadequate installation and poor maintenance practices, and the potential for further pollution events to occur.
A record of rainfall in the surrounding area from the Bureau of Meteorology for the months of May, June and July was exhibited to Mr Bailey's affidavit.
The affidavit of Mr Lacey, development engineer employed by the Council, dated 6 March 2013 was also read. Mr Lacey stated that on 27 June 2012 he and Mr Bailey attended the land when it was raining quite heavily. He observed that the fence and gate access at the entrance to the land looked newly constructed. He also observed that the track was incomplete and that sections of the track required substantial cut and fill to form the track, being cut and fill which he estimated to be over 1.2 m high and batters with a slope greater than 45 degrees.
Following the inspection of 27 June 2012 and reading the development consent granted by the Council for DA 2005/842 Mr Lacey considered whether development consent condition 9 requiring sediment and erosion controls to be implemented had been complied with. Mr Lacey was also aware that Planning for Bushfire Protection 2001 also regulates soil and erosion management associated with fire access tracks such as the partially completed track he had observed on the land. That track is identified in the plan annexed to the development consent for DA 2005/842 and described as "proposed secondary driveway access" depicted by a black dotted line.
Following Mr Lacey's observations on 27 June 2012 of the construction of the access track he undertook an assessment of the access track against the requirements of Planning for Bushfire Protection 2001, Council's Development Control Plan No. 1 - Residential Development, Council's Guidelines for the Control of Soil Erosion and Sedimentation on Building and Development Sites, Council's Guidelines for Erosion and Sediment Control on Building Sites and the Northern Rivers Local Government Design and Construction Manual.
Mr Lacey is not aware, following his review of the Council's file concerning DA 2005/842, of any engineered road design being carried out by a practising civil or structural engineer in respect of the access track. Mr Lacey had only seen a concept design or layout for the access track being the plan for consent DA 2005/842 in his review of the files and documents held by Council depicting any specifications of the access track.
Mr Lacey's opinion is that at the time of the 27 June 2012 inspection, the erosion and sediment controls that had been installed were not being maintained to prevent soil erosion and the transportation of sediment from the land into the natural watercourse present on the land. Excessive cut and fill (batters) had been carried out on the land, an example of which he estimated to be over 1.2 m and a batter of greater than 45 degrees.
Mr Lacey states that there are various standards for establishing suitable slope for batters. Excess fill for road construction would require consideration in the context of suitability of the material and compaction in order to comply with s 4.3.3 of Planning for Bushfire Protection 2001 and in particular the requirement to have appropriate drainage and erosion controls. The access track needs to be constructed to a standard that would last and serve the purpose for which it was being constructed because it must be maintained in a serviceable condition by the landowner and must be trafficable under all weather conditions. The material used for the road construction appeared to be sourced from the site as Mr Lacey did not observe any stockpiling of imported quality road base material and he observed evidence of quarrying at the site by the presence of large areas of cut in the surface of the land. A lack of quality road base or a reliance on site-sourced material carries a high risk of being inadequate for a fully loaded fire fighting vehicle or of being unsuitable for all water access as required under s 4.3.3. To confirm whether the track could handle the required loading, a suitable engineering design would be needed which Mr Lacey had not sighted on the Council file. In Mr Lacey's opinion, if the road base material had been sourced from a professional supplier, the likelihood of the surface being slippery and muddy, such as observed on the site view of 27 June 2012, would be much lower.
During the 27 June 2012 inspection, Mr Lacey observed that stormwater drainage along the access track appeared to have a general lack of adequately sized and formed drainage channels along the roadside. There was insufficient depth for open drains and there were open drains with slopes in excess of 12 per cent without a form of suitable lining, which is required to prevent soil erosion and sediment flow into the watercourse.
Based on Mr Lacey's observations on 27 June 2012, the access track construction did not comply with the requirements of s 4.3.3 of Planning for Bushfire Protection 2001, for access with respect to bend radius. Section 4.3.3 requires that access curves have a minimum inner radius of 6 m. Based on Mr Lacey's observations and rough estimates, the two hairpin bends each had an inner radius of less than 6 m.
Section 4.3.3 of Planning for Bushfire Protection 2001 provides a maximum grade of 15 degrees. Mr Lacey observed that a number of sections of the track were above 10 degrees and close to the maximum grade. Mr Lacey considered that although strictly speaking the access track complied with the maximum gradient controls, the manner in which the track had been constructed made the gradients more likely to contribute to sediment laden water entering the watercourse. In his experience steep roads with gradients above 10 degrees which have a dirt and low quality road base are less stable and therefore more likely to cause water pollution.
During the 27 June 2012 inspection Mr Lacey observed bank instability on a sharp bend with an inner radius of less than 6 m and a small land slop on an embankment. Eroded soil was filling and overloading the silt fencing that was in place as a result of the uncontrolled water flowing over the construction site. As a result, the silt fencing had collapsed because of the pressure put against it by the soil, debris and rock which had come loose from the road surface.
Following the 27 June 2012 inspection, a further site meeting was arranged to take place on 6 July 2012 with Mr Kennedy. On 6 July 2012 Mr Bailey, Mr Kennedy, Mr Ihalainen and Mr Lacey attended the land. They stopped at various locations along the access track and had conversations at those stops as follows:
(a) Identifying locations where sediment and erosion control measures were ineffective, where Mr Lacey said that the silt fencing needed to be relocated to more suitable positions, observing the stormwater flows when it is raining and other locations where water flow has been going to indicate areas that need protection. Mr Kennedy said "yes" to this.
(b) Identifying locations where further and/or additional sediment and erosion controls were required. Mr Lacey pointed out the long sections or length of drainage channel where there was a reasonable slope with no additional measures to control the water flow. Mr Lacey said that the slope and the need for riprap or rock lining of the drain and measures to slow the water velocity need to be considered suggesting the placement of hay bales or multiple sections of silt fencing across the drain to slow and catch sediment. Mr Kennedy said "yes" to this.
(c) Discussion regarding the timing and manner in which the culvert and creek crossing was to be constructed. Mr Lacey asked whether Mr Kennedy could advise when he could respond to the Council concerning when and how he plans to construct the culvert shown on the plan. The plan needs to describe how Mr Kennedy is going to manage the water flow during the work and what measures he proposed to manage the disturbed soil during the excavation. Mr Kennedy said "yes" to this.
(d) Discussion regarding the sizing of piped culverts and providing some approximate calculation to prove the pipe size election was adequate based on the area of each catchment discharging through each pipe. Mr Lacey asked Mr Kennedy whether he knew who had sized the concrete pipes being used for the crossings and culverts to which Mr Kennedy replied "no." Mr Lacey said that he noticed that all the pipe crossings were the same size and that he would need to use the volumes from each catchment and confirm that the pipe sizing was adequate to which Mr Kennedy replied "yes, I understand I will do that."
(e) Discussion regarding stormwater energy dissipaters on the exist [sic] side of each piped culvert which took place at each section where there was a proposed pipe crossing such as near the landslip. Mr Lacey said to Mr Kennedy that when he submits a plan he would need to show detail of his piped outlets, how he proposed to construct the outlet apron to limit soil and show the spread of flow rather than simply providing a short length of hard surface. Mr Kennedy said "yes, I can do that" in response.
(f) Discussions regarding general compliance of the track with the requirements for access by the Rural Fire Service, other emergency services and reference to Planning for Bushfire Protection 2001. Mr Lacey said that Mr Kennedy needs to comply with the access track requirements for the Rural Fire Service and that Mr Lacey believed the bends in the track did not have proper turning circles. Mr Lacey said Mr Kennedy needed to do an overall assessment on compliance with the standard including nominating or constructing passing bays. Mr Kennedy said "yes, I will do that" in response.
Mr Bailey then said to Mr Kennedy and Mr Ihalainen words to the effect of "I will put down our requirements in a letter to confirm our expectations." Mr Bailey and Mr Lacey then left the land. The second clean-up notice was served on 9 July 2012.
Defendant's submissions
The Defendant submitted no notice of the second clean-up notice was given by the Council and should have been in the circumstances. No imminent pollution incident was threatened to justify providing such an extensive clean-up notice without any consultation about its contents.
The relevant events in the lead-up recitals to the second clean-up notice are as follows:
(a) On 22 May 2012, Mr Bailey of the Council inspected the land and saw that earthworks had been carried out to construct the internal access track. In Mr Bailey's opinion, the earthworks had the potential for "contamination of the subject premises and surrounding waterways as sediment and erosion control measures were not in place".
(b) On 24 May 2012, Mr Bailey issued the first clean-up notice without any prior notification to the Defendant that he intended to do so.
(c) On 31 May 2012, an initial sediment and erosion control plan was provided to Mr Bailey.
(d) On 4 June 2012, a more detailed sediment and erosion control plan was provided to Mr Bailey.
(e) In the period after the first clean-up notice was issued, sediment and erosion control measures were installed on the land in the vicinity of the internal access track.
(f) On 26 and 27 June 2012, there was a significant rain event in the locality in which the land is situated. More than 100mm of rain fell over those two days.
(g) On 27 June 2012, Council officers Mr Bailey and Mr Lacey inspected the land during the said rain event and saw sediment runoff from sections of the internal access track. Mr Bailey, as author of the second clean-up notice records his view in the notice recitals that the sediment and erosion controls installed in response to the initial clean-up notice were not effective and were not being maintained in a satisfactory manner. It became apparent that a pollution event had occurred as a result. Mr Bailey expanded his observations of the event which occurred on 27 June 2012 in par (c) and (d) of the "Particulars" on page 2 of the notice.
(h) On 6 July 2013, there was an on-site meeting between Council officers Mr Bailey and Mr Lacey and Mr Ihalainen and his engineer at which there was discussion of the erosion and sedimentation controls installed on sections of the alignment of the internal access track. At the conclusion of that meeting, Mr Bailey said to Mr Ihalainen and his engineer words to the effect that: "I will put down our requirements in a letter to confirm our expectations"
(i) On 9 July 2012, without any intervening communication, the second clean-up notice was issued to Mr Ihalainen.
Assuming for the purpose of argument that there was a pollution incident on 27 June 2013 during a rain event, involving some runoff of sediment laden waters from disturbed soils on the internal access track, such incidents are commonplace in rain events. There is no evidence that this was a pollution incident which caused or threatened any material harm to the environment. The Council officers obviously did not consider that this was an event which did cause or threaten any material harm or one which required immediate remedial attention. Indeed, as the affidavit of Mr Bailey makes clear, he did nothing at all during the period from 27 June 2012 for a period of eight days which elapsed before the on-site meeting of 6 July 2012.
Had this been a significant pollution incident requiring any immediate action to be taken, then one would reasonably infer that Mr Bailey or one of his colleagues would have taken some significant regulatory steps on 27 June 2012 or in the days which immediately followed. Eight days of inaction by the Council officers in relation to the incident suggests that there was no serious or immediate threat of environmental harm posed by the incident.
That the Council officers did not perceive the incident as one which posed any serious or immediate threat of environmental harm is consistent with the fact that the discussions at the on-site meeting held on 6 July 2012, deposed to by Mr Lacey and Mr Bailey, did not include any suggestion that there was any serious or immediate threat of environmental harm. Nor was there any discussion during that meeting about the need to take any urgent or immediate measures to prevent or mitigate any actual or potential environmental harm. Short term deadlines are absent from the discussions held on that day.
In these circumstances, the only reasonable conclusion that may be drawn as to the content of the obligation on the part of the Council to afford procedural fairness in exercising power under s 91 of the PEO Act is that this case is devoid of the type of serious event or immediate threat which might possibly displace the expectation that the intended recipients of clean-up directions under s 91 be given some advance notice of the intention to issue the proposed directions and an opportunity to make representations or submissions about the proposed clean-up directions prior to them being made.
Notwithstanding that there was no immediate threat of any material environmental harm at the time the Defendant was given the directions under the second clean-up notice, he was not given the opportunity to make any submissions in relation to the three tranches of directions contained in the second clean-up notice. These tranches required substantial work within 7, 14 and 30 days respectively of the notice. The Defendant should have been afforded the opportunity to comment on a draft notice before a final notice was issued, given the extent and complexity of the work required and that failure to comply with a notice is a criminal offence.
Without purporting to canvass the range of submissions Mr Ihalainen could fairly and reasonably have made had he been given prior notice of the intention to issue these directions, it is obvious that such submissions could reasonably have included submissions as to:
(1) the absence of any necessity to issue the second clean-up notice having regard to the directions contained in the first clean-up notice;
(2) the substance of the directions in the second clean-up notice, including by reason of the circumstance that there were some directions overlapping those made under the first clean-up notice;
(3) the unreasonableness of the timeframes set out in the second clean-up notice; and
(4) the unfairness and unreasonableness of attempting to use a clean-up notice as a vehicle to duplicate requirements imposed under a development consent such as measures to satisfy the Council's Planning for Bushfire Protection 2001.
Cauchi supports the Defendant's approach. The work required was not simple erosion control measures unlike in Ryding. The second notice is invalid and all the charges relying on it should be dismissed.
Council's submissions
The Council accepts that the Court has power to make orders for summary dismissal. Such orders are not lightly made and are rare in criminal proceedings. Relevant facts will vary from case to case.
That the charges against the Defendant in respect of the second clean-up notice ought not be dismissed summarily is put beyond doubt once the further observations in Ryding are understood and appreciated. Ryding was a Class 6 appeal. Inter alia, the defendant in that case, Mr Ryding, alleged, relying on Cauchi, that there was a failure to afford him procedural fairness. Ryding is similar, factually speaking, to the circumstances of the present case, but has not been cited by the Defendant.
Both Cauchi and Ryding make plain that whether or not a person was afforded procedural fairness in accordance with law is not to be determined solely by reference to a decision by a government authority to not serve a document giving prior notice of an intention to issue a clean-up notice or inviting representations to be made with respect to such an intended notice. The background facts, as outlined above, can vary considerably from case to case, and procedural fairness obligations need to be assessed and determined having regard to all of the circumstances of the case and in light of all of the evidence, tested or otherwise.
Cauchi does not assist the Defendant as it does not provide any statement of general application. There is no general principle mandating a particular type or form of procedural fairness in any circumstance, these being infinite as recognised in Cauchi at [50]. Each case depends on its own facts. The facts here are more akin to those in Ryding than in Cauchi. The notice requires relatively straightforward soil and erosion prevention measures which the Defendant failed to adequately install and maintain after the first clean-up notice, similar to the facts in Ryding.
As alluded to above, the fact that a notice of intention was not served on the Defendant prior to issuing the second clean-up notice does not mean the clean-up notice was or is legally defective. The evidence shows that the Defendant had a telephone conversation with a Council officer and the following day was served with the first clean-up notice which squarely put the Defendant on notice of Council's concerns, both in terms of non-compliance with development consent conditions and the potential for environmental harm, including pollution events (affidavit of Mr Bailey 5 March par 23, 25-29; statement of facts par 16-17). Although the Council has withdrawn the charges relating to the first clean-up notice, the fact of service of that notice critically informs the circumstances for the service of the second clean-up notice and thus defines the nature, scope and content of the Council's duty or otherwise in relation to the second clean-up notice. The Defendant ought to have known, in the circumstances, that if he did not comply with the first clean-up notice, the Council may take further action. The obligation of procedural fairness is informed by those circumstances.
The Defendant's attempts to comply with the first clean-up notice were inadequate. While he engaged consultants and procured documents these were inadequate in the Council's view. In the meantime further environmental harm or risk of environmental harm was occurring with the rain event on 26 and 27 June 2012 resulting allegedly in a pollution event. There was no prospect of any significant affectation of the Defendant's business. The Defendant ought to have known his actions were likely to cause ongoing concern to the Council.
The Defendant was undertaking works pursuant to a development consent. The second clean-up notice was directed at ensuring the Defendant complied with his obligations under the development consent. Unlike Cauchi, the Defendant must have been aware that his actions would inevitably have led the Council to serve the second clean-up notice in the circumstances.
The exchange of correspondence between the Council and the Defendant demonstrates the Defendant was fully aware of the matters of concern to the Council, such that the fact of service of the notice, and its content, could have come as no surprise to the Defendant (affidavit of Mr Bailey 5 March par 38, 41-45; statement of facts par 20-21).
When the facts are considered, procedural fairness was afforded to the Defendant in the circumstances. The works specified in the second clean-up notice were responsive in part to the first clean-up notice which had not been complied with. The Defendant agreed at the on-site meeting on 6 July 2012 with the Council officers to undertake work, the meeting being also attended by the Defendant's consulting engineer Mr Kennedy who acknowledged the nature of the work required and the timeframe by agreement. This meeting afforded an opportunity to the Defendant to raise any concerns about the Council's approach with its officers.
Failure to afford procedural fairness
The Council submitted that it was premature to determine whether procedural fairness had been afforded in advance of a final hearing where all the relevant facts could be considered. The Defendant submitted the matter could and should be determined as a discrete and preliminary matter which appropriately deals with the question decisively. As the Defendant submitted that was the approach embraced in Cauchi, as can be seen from the costs judgment Liverpool City Council v Cauchi [2005] NSWLEC 676 and means that the Defendant if successful avoids the considerable expense of a more protracted criminal trial. This approach is supported by Div 2A Pt 5 Ch 4 s 247G of the Criminal Procedure Act 1986. The Court has the power to make the orders sought, the Council has read the affidavits of the Council officers Mr Lacey and Mr Bailey and these can be taken at their highest. The officers were not subject to cross-examination and their evidence to the extent it was read was uncontested. It is appropriate in these circumstances that I consider the Defendant's motion for summary dismissal on the basis pressed.
While I can accept that orders for summary dismissal of criminal proceedings should not be lightly made, as advised above in par 8 I must determine whether I am satisfied in the circumstances of this case that procedural fairness obligations owed by the Council to the Defendant were met.
No appeal mechanism against a notice is available under the PEO Act and there is no statutory right to be consulted before one is issued. The notice is administrative in nature and affects the rights of the recipient. A failure to comply can give rise to an offence under the PEO Act. It is agreed by the parties and confirmed by the authorities referred to by the parties of Cauchi and Ryding that there is a duty to afford procedural fairness, meaning a right to be heard when a clean-up notice under the PEO Act is contemplated by a regulatory authority. In Cauchi McClellan J at [26 - [29] referred to the relevant principles commencing with Twist v Randwick Municipal Council (1976) 136 CLR 106 where Barwick CJ stated that the common law rule that a statutory authority exercising a power which affects the rights of a person is bound to hear that person before exercising the power is fundamental.
Whether procedural fairness has been afforded to the Defendant depends on the particular circumstances before the Court. In Cauchi the circumstances did not give rise to a finding that procedural fairness had been afforded to a defendant. The clean-up notice required a large amount of fill to be removed which was very expensive to undertake. In Ryding I considered procedural fairness did not require further notice to be given of a clean-up notice which required implementation of straightforward erosion and control measures on a building site. This case not surprisingly is different again.
The first clean-up notice required the installation of appropriate and effective sediment and erosion controls along the whole access track, to be installed to a certain standard. A sediment and erosion control plan prepared by an appropriately qualified person was also to be undertaken and provided within seven days. Certification that all controls had been undertaken was required within 14 days.
The second clean-up notice served on the Defendant required three different tranches of work to be carried out within 7, 14 and 30 days respectively. I will not set out the work required here as the whole notice is attached to the judgment. Work required in such a notice must be directed to clean-up action as defined in the dictionary to the PEO Act in relation to a pollution incident, also as defined in the dictionary.
In relation to work required to be done in seven days, that work overlapped with the first clean-up notice in that sediment controls were required to be implemented. These were specified in more detail by reference to a hand drawn plan provided by the Council of areas where work was required. The nature of the work was specified on the plan and in the clean-up notice at par 1 (a) - (f) which corresponded with numbers 1 - 6 on the plan. There was no number 6 on the plan. An additional requirement not specified in the first clean-up notice was that all disturbed areas had to be stabilised and revegetated, par 2.
The work required within 14 days to ensure potential for pollution events occurring was minimised included the provision of a soil and water control plan, a requirement of the first clean-up notice, this time specified to be designed in accordance with the Northern Rivers Local Government Development and Design Manual (Version 2) section D7 and with reference to the blue book. Specific areas of content were also identified in par 1. A final set of engineering plans was also required in par 2, which complied with s 4.3.3 of Planning for Bushfire Protection 2001 and the Council's Vehicular Access Policy and had to take into account certain specified information. A certificate from a suitably qualified person that all of the requirements as detailed within the soil and water control plan had been carried out also had to be provided under par 3. Such a certificate was also required by the first clean-up notice but was to be more detailed under the second clean-up notice.
The work required within 30 days of the notice was that a suitably qualified engineer must verify that civil engineering works associated with the internal access track had been assessed as structurally adequate and the track would not be affected by landslip and all works were complete in accordance with the various specified manuals. Other matters requiring verification related to stormwater disposal and that construction of vehicular and stock crossing of the watercourse was in accordance with specified guidelines.
Issuing clean-up notices which have overlapping but not identical requirements is potentially confusing. A clean-up notice can be revoked or varied under s 110 of the PEO Act.
Clean-up notices are intended for urgent and/or prompt measures necessary to avoid pollution occurring or the imminent likelihood of pollution occurring, as can be seen in the commentary in the Thomson Reuters, Environmental Responsibilities Law NSW Service, Vol 1, July 2013 on Pt 4.2 of the PEO Act at p 18619-18620. In this case the Defendant had caused an access track to be built over 1.2 km which in several places is along steep hillside above a watercourse. The affidavits of the Council's officers Mr Lacey and Mr Bailey are summarised above and identify in their view the absence, or inadequacy, of necessary sediment controls in place along the track. When Council officers first attended the site no sediment control measures were installed resulting in the first clean-up notice being issued on 24 May 2012. The Council officers considered the measures put in place were inadequate and the engineering consultant's documents produced on behalf of the Defendant were inadequate. Rain had fallen on 26 and 27 June 2012 leading the officers to consider that water pollution had occurred. A site visit on 27 June 2012 was arranged but the Defendant sought to postpone it because rain made access difficult. The Council's officers attended as they did not receive the request to postpone and were concerned by what they saw. The postponed site visit was held on 6 July 2012 with the Defendant's consultant Mr Kennedy also attending. He agreed to all the measures requested by the officers on the site according to the affidavits of the Council officers. A number of these measures are the subject of the second clean-up notice but not all.
The last communication from the Council officers to the Defendant at the end of the meeting on 6 July 2012 before the second notice was served was that the Defendant would receive a letter outlining the work required. While the Council submitted that the Defendant should not have been surprised that a second clean-up notice would be issued given the communications in writing and at the site meeting on 6 July 2012, no notice was given by the Council officers that a second clean-up notice was to be issued and what its contents would be. Whether the Defendant would be surprised by the issue of a notice is not the correct question.
Much of the Council's evidence is essentially directed to whether a clean-up notice should have been issued at all, which is not a matter in issue. While there was lengthy and detailed discussions with the Defendant and his consultant on 6 July 2012 this did not cover all aspects of the requirements in the second clean-up notice. Nor was that discussion anchored in the context that a clean-up notice would be issued. Further, the history of no action by the Council between 27 June 2012 and 9 July 2012 does not suggest that the officers perceived there was an immediate threat of material environmental harm such that no notice should be given by the Council of the second clean-up notice. This is because the Council officers took no action between 27 June 2012 and 6 July 2012 when the postponed site meeting occurred. I agree with the Defendant the events do not suggest that the officers acted as if they believed a pollution incident was imminent.
Further, the work required by the notice is substantial, requires the engagement by the Defendant of potentially more than one expert and requires application of a number of lengthy policy documents and manuals by the Defendant's consultants in three different but short timeframes. I agree with the Defendant that the entirety of work required by the notice was unreasonable to impose without notice and without providing the Defendant an opportunity to comment on and/or query the work required in the timeframe specified. A request for particulars was sent by the Defendant dated 27 July 2012 and identifies matters which it was reasonable to seek clarification about including as to the timeframes selected for the work to be completed.
Slightly contrary to my finding in par 61 above, had the notice been confined to sediment and erosion control measures only, as the work required within 7 days and part of the work required within 14 days did, it may have been reasonable to serve this without notice given the possibility of water pollution from sediment in the event of more rain and the consultation with the Defendant and his consultant on the 6 July 2012 site visit. The consultant agreed to the measures referred to on site by the officers, as identified in the affidavit of Mr Lacey summarised above at par 29. As already noted, however, the work required under the notice is more extensive than was discussed at the site meeting on 6 July 2012. Further, it also related in part to compliance with the conditions of development consent DA 2005/842 issued under the Environmental Planning and Assessment Act 1979 in par 1 of the directions for action within 7 days and par 2 of the direction for actions within 14 days requiring compliance with Planning for Bushfire Protection 2001 s 4.3.3. Such measures should not be the subject of a clean-up notice issued under the PEO Act as a means of preventing actual or imminent pollution unless perhaps they are inextricably bound up with achieving that outcome. These circumstances do not suggest that connection arises.
Particularly problematic in terms of lack of notice to the Defendant is the requirement for reporting by an engineer within 30 days on work required to be carried out by then. Firstly, the extent of work required in order for an engineer to provide the necessary verification is extensive and some consultation with the Defendant to see whether this was reasonable appears necessary if procedural fairness was to be afforded. Secondly, some of that work appears aimed at ensuring compliance with development consent DA 2005/842 beyond the implementation of sediment and erosion controls in condition 9 given the requirements referred to in par 1 such as verifying that stormwater is properly disposed of, and that documents have been complied with such as Planning for Bushfire Protection 2001. These are not self evidently matters appropriately the subject of the second clean-up notice issued under the PEO Act.
I am not satisfied that procedural fairness has been afforded to the Defendant in all the circumstances of the second clean-up notice being issued by the Council. The charges in par 5 - 15 of the summons rely on a clean-up notice I have found was not issued legally. It follows from that finding that these parts of the summons should be dismissed.
Orders
The Court makes the following orders:
(1) The charges specified in par 5 - 15 of the summons relating to an alleged clean-up notice dated 9 July 2012 are summarily dismissed.
(2) Costs are reserved.
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Annexure A
Decision last updated: 19 September 2013
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