Liverpool City Council v Cauchi

[2005] NSWLEC 675

Land and Environment Court

of New South Wales

CITATION:	Liverpool City Council v L Cauchi Liverpool City Council v M A Farrugia t/as D&M Farrugia Excavating Liverpool City Council v D Farrugia t/as D&M Farrugia Excavating Liverpool City Council v J&L Cauchi Pty Ltd Liverpool City Council v J Cauchi [2005] NSWLEC 675
PARTIES:	Liverpool City Council Louise Cauchi (Def) Joseph Cauchi (Def) J & L Cauchi (Def) M A Farrugia (Def) D Farrugia (Def)
FILE NUMBER(S):	50115; 50116; 50117; 50118; 50119 of 2003
CORAM:	McClellan CJ
KEY ISSUES:	Prosecution :- Not guilty plea Failure to comply with clean up notice Defence of reasonable excuse Procedural fairness
LEGISLATION CITED:	Environmental Planning & Assessment Act 1979 Protection of the Environment Operations Act 1997 Local Government Act 1919
CASES CITED:	Attorney General (Commonwealth) v Breckler (1999) 197 CLR 83; Cooper v Wandsworth Board of Works (1863) 14 CB(NS) 180 [143 ER 414]; Cox & Hazell Pty Ltd v Gidney (1981) 1 NSWLR 468; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Calvin v Carr [1980] AC 574; Ousley v R (1997) 192 CLR 69; Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476; R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171; Twist v The Council of the Municipality of Randwick (1976) 136 CLR 106
DATES OF HEARING:	1-3 August 2005
EX TEMPORE JUDGMENT DATE:	08/03/2005
LEGAL REPRESENTATIVES:	I J Hemmings (Prosecutor) Matthews Folbigg (Sol - Prosecutor) M S Henry (Counsel - Cauchi) P S Barham ((Counsel - Farrugia) Balmain Lawyers (Sol - Cauchi) Stoikovich Macri (Sols - Farrugia)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

McCLELLAN CJ

WEDNESDAY 3 AUGUST 2005

50115/03 LIVERPOOL CITY COUNCIL v L CAUCHI
50116/03 LIVERPOOL CITY COUNCIL v M A FARRUGIA (trading as D&M Farrugia Excavating)
50117/03 LIVERPOOL CITY COUNCIL v D FARRUGIA (trading as D&M Farrugia Excavating)
50118/03 LIVERPOOL CITY COUNCIL v J&L CAUCHI PTY LTD
50119/03 LIVERPOOL CITY COUNCIL v J CAUCHI

JUDGMENT – On motion for dismissal of proceedings; see p 246 of transcript

1 HIS HONOUR: The defendants in these proceedings bring a motion for their dismissal. There are five separate proceedings and accordingly five different defendants. Two of the defendants are Mrs L Cauchi and Mr J Cauchi, a husband and wife, who are the directors and shareholders of the company, J&L Cauchi Pty Ltd, which is another defendant.

2 The other two defendants are Mrs MA Farrugia and Mr D Farrugia, who are also husband and wife, who have carried on the business of D&M Farrugia and who, after the alleged offences occurred, were the shareholders and directors of Farrugia Excavating Pty Ltd.

3 The proceedings arise from events which occurred on land known as 81 Greendale Road, Greendale. That property is owned by Mr and Mrs Galea. It is a property of some 11 hectares in area and, when purchased by the Galeas at some time before the relevant events, had one house constructed on it.

4 The Galeas determined that a new dwelling should be erected, which was to provide accommodation for their daughter and her family. To this end, an application was lodged with the council and arrangements were made for a project home to be constructed.

5 Before that project home could be constructed, the builder asked that an improved driveway facility be provided, which required the undertaking of earthworks and construction of a pavement.

6 Mr Galea, who has for many years conducted a business as an egg-producer and farmer, made arrangements with Mr Farrugia for that driveway to be constructed. Mr Farrugia, as I understand it, carries on a business which includes earthmoving activities and has equipment suitable for that task.

7 At about the time the driveway was being constructed, Mr Galea had discussions with Mr Farrugia about the possibility of fill being brought to the site and placed at the rear of the existing and proposed dwelling in a location where it could form a level pad for a proposed machinery shed. The land falls generally from the location of the houses to the north, and it was on the northern side of the houses that the machinery shed was proposed.

8 It is unnecessary for me to detail the evidence beyond indicating that Mr Farrugia apparently entered into an arrangement whereby Mr Cauchi or his company brought fill to the site, which was spread by Mr Farrugia. Mr Cauchi, as I understand it, carries on some sort of trucking operation.

9 The council became aware of the introduction of fill and carried out inspections of the site. Mr McLaggan was, at that stage, the senior environmental health officer (pollution control) of the council, and he attended the premises on a number of occasions with Mr Robert Stone, who was the senior planning and development enforcement officer of the council.

10 They were apparently concerned that fill was being introduced to the site without development consent being obtained. They were also concerned that the fill contained within it quantities of asbestos, which had the potential to create a serious health risk if it was allowed to be deposited in an inappropriate environment, which would be the case if it were allowed to remain on the subject site.

11 There is little difficulty in understanding their concerns not only because of the potential presence of asbestos, but because it would seem that at least 7,500 tonnes, but possibly up to 9,000 tonnes, of material was introduced to the site. Photographs are in evidence, and it is plain that whatever be the precise volume, it brought a significant change to the rural landscape.

12 The concerns of the council were ultimately expressed to Mr Galea, and he was served with a notice pursuant to s 121B of the Environmental Planning and Assessment Act 1979 on 30 May 2002. As I understand the position, that notice required him to remove unauthorised landfill from the premises. It is plain that having regard to the volume of fill that had been introduced, that was a significant task. The fill was ultimately removed at a cost in excess of $750,000.

13 Mr Galea did not obey that notice, and inspections continued to be carried out by Mr McLaggan, who interviewed Mr Galea and also spoke with Mr Cauchi and Mr Farrugia. In the course of those interviews, Mr Cauchi made plain that he was responsible for bringing at least some of the material to the site. There is a dispute as to how much of it he was responsible for. Mr Farrugia made plain that he had utilised his equipment in dispersing the material on site.

14 It is unnecessary, for the purpose of this application, to refer to the detail of those interviews, except the interview which occurred on 19 September. On that day, Mr McLaggan, together with Mr Stone, met with Messrs Galea, Farrugia and Cauchi. They had a discussion about the material in the context of an obligation falling upon Mr Galea to remove it. Although it was made plain in the course of the discussion that Messrs Cauchi and Farrugia would be involved in the removal, at no time during that discussion was it suggested that, without further contact with them, any formal notice would be served upon Mr Cauchi or Mr Farrugia carrying with it a legal obligation for them to remove the material.

15 It is necessary to pick up part of the conversation as recorded by Mr McLaggan in a document headed "Record of Interview". The following occurred:

"Robert Stone said: How long is that going to take?

Joe (Cauchi) said: Dave, ya reckon 2-3 weeks.

David (Farrugia)[nodded].

Robert Stone said: Where would this be done?

Joe said: Anywhere over there. We could put the stockpiles where the bricks and that pile there is. The bricks and stuff like that are for the road. Dave would run the excavator over it a few times.

I (Mr McLaggan) said: This may be acceptable for the material or wastes that is not contaminated with asbestos. The asbestos material has to be taken off the site and taken to an approved waste facility licensed by the EPA. That must occur. There are public health and safety issues that need to be resolved. All the asbestos contaminated material or wastes cannot be dumped or left on the premises.

Paul (Galea) said: Rob, can you give us the time to do all this then?

I said: Paul, the Clean-Up Notice issued to you requires that the material to taken off the site by the 23rd September. That's only 4 days away. I'll grant an extension of time to complete the works to 31st October. That's reasonable and gives Joe and David enough time to complete the work. You need to erect sedimentary control fences around the stockpile and platform.

Paul said: Thanks Rob. That's good. Joe and David will do what you want.

I said: Let's make it quite clear here and now, if the work is not completed or the asbestos is not removed, Council will initiate legal action against those involved.

Robert Stone said: I think Paul you should get Joe and David to give you details of what is proposed and then you should send it to Council with your D/A application. If you want I'll send you an application form.

Paul said: Please Robert. You send that to me and I'll send it back with what you want. We'll get all this done for you. You've been fair to me. You know Catherine has to be in the house before Christmas. We have to leave Benera Road in December.

I said: Is there anything else Paul, Joe or you David want to ask me...or Robert?

Paul said: No. It'll be all done like you want.

Joe said: Not really.

David [shook his head sideways]

I said: We will be conducting inspections regularly. I need to confirm the extent of the asbestos in the stockpile and platform. If the asbestos is found to be throughout the wastes and the stockpile it will have to be removed. Is that clear to everyone.

Joe said: Ah yeah.

Paul said: Yes Rob. If that's what the Council want then we'll do that. OK.

I said: Thank you for your time regarding this matter. If you need to contact me please call or leave a message. You have our cards with the phone numbers."

16 The notice referred to in the conversation was a notice served upon Mr Galea pursuant to s 91 of the Protection of the Environment Operations Act 1997. At that point a notice had not been served on any of the present defendants.

17 As I understand the position, work to remove the fill was commenced and a volume was removed over four days. However, the work then ceased and no further fill was removed. Thereafter, without any further discussion with or indication to any of the defendants, the council issued notices upon the defendants pursuant to s 91 of the relevant Act.

18 The notice headed "Direction to Take Clean-Up Action" provided a statement as to the person to whom the notice was served, being identified in the notice "as entity involved in the activity at the premises/property", being the subject premises. A statement as to the background was provided and was said to be:

"Unlawful Use of premises as Waste Facility. Transport waste material and excavated material to premises and accept and dispose of waste building and demolition materials, store waste materials, excavated landfill materials, on premises."

19 It also referred to complaints about and the presence of demolition materials including asbestos-contaminated fill material. The notice required the premises to be cleaned up within 28 days of the notice or before 6 December 2002 and specifically required the following:

"1. Remove all asbestos contaminated waste material, demolition waste material and other excavation or landfill materials from the premises.
2. Transport the asbestos contaminated waste material, demolition wastes and other excavated or landfill materials to an approved waste facility licensed by the N.S.W. Environment Protection Authority.
3. Provide Council copies of all transport and/or disposal dockets issued by the waste facility for receipt of the wastes and materials within 7 days of completion of disposal.
4. All work to be carried out during normal working hours 7am to 5pm Monday to Friday and 8am to 1pm Saturday with no work permitted Sunday or public holidays.
5. Provide suitable sediment control measures along the boundary/ies of the premises to prevent the egress from the premises or discharge of pollutants from the premises to the natural water course or flow path drainage system or other receiving water system.
6. Cease unauthorised activity on the premises resulting in the deposition of wastes to the premises or egress of pollutants to the receiving water system or course or stormwater drainage system.
7. Reinstate the land to the natural contour/s and state prior to the deposition of waste materials on the said premises."

20 That notice having been served, as I understand the position, no further material was removed from the site. The defendants have indicated during the course of the proceedings that they propose to pursue a number of matters by way of defence.

21 Section 91 is in the following terms:

“(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.

Note: pollution incident and clean-up action are defined in the Dictionary.

(2) Notices by EPA in emergency
The EPA may, if it considers that it is necessary to do so because of an emergency, give the clean-up notice even if it is not the appropriate regulatory authority with respect to the pollution incident.


(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.

(4) Recovery by person given notice
If the person given a clean-up notice complies with the notice but was not the person who caused the pollution incident, the cost of complying with the notice may be recovered by the person who complied with the notice as a debt in a court of competent jurisdiction from the person who caused the pollution incident.

(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:
• in the case of a corporation—$250,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or
• in the case of an individual—$120,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.”

22 One of the defences which has been identified is that which arises pursuant to s 91(5), the defendants intending to submit that for various reasons they did not comply with the notice, having a reasonable excuse. The present motion has been brought before the defendants have gone into evidence and, accordingly, I need say no more about that aspect of the matter at this stage.

23 The issue raised by the present motion is whether or not the council can sustain this prosecution in circumstances where it is submitted that before the s 91 notice could be issued, the council was required to give the defendants procedural fairness and that obligation, not having been fulfilled, the notice is accordingly of no effect. Being of no effect it is submitted that the prosecution must fail and the various summonses should be dismissed.

24 Section 91 falls within chapter 4 of the Act. Within that chapter provision is made in part 4.3 for prevention notices and in part 4.4 for prohibition notices. With respect to a prevention notice, a right of appeal is provided by s 289(1) of the Act which provides a right of appeal within 21 days of the service of the notice. Consistent with that right, s 99 provides that the prevention notice does not operate until the time for any appeal has expired.

25 In contrast to part 4.3, part 4.2, and in particular s 91, is not complemented by any right of appeal. Accordingly, the Act affords a person, who might be affected by such a notice, no express right to appeal that notice, nor any express right to be consulted before the notice issues. However, it is clear that the issue of a notice has a capacity to impose significant burdens on the person who receives it. Those burdens may, as in the present case, involve the expenditure of considerable sums of money. It is possible to imagine an infinite variety of circumstances in which such a notice might be issued with significant practical consequences for the recipient. A failure to comply with the notice renders a person liable to prosecution and, if found guilty, that person may suffer the possibility of significant monetary penalties. In these circumstances the defendants submit that, before the notice could be lawfully issued, they were entitled to be heard.

26 The relevant principles have been discussed on many occasions. Although referred to in earlier decisions, the modern law is sourced from the decision of the High Court in Twist v The Council of the Municipality of Randwick (1976) 136 CLR 106. In that case the appellant had received a notice pursuant to s 317B of the Local Government Act 1919 requiring the demolition of his house. The Act, which has since been repealed, provided that a recipient of such a notice has a right of appeal to the District Court against the making of an order. That right of appeal provided a hearing de novo.

27 Mr Twist did not exercise his right of appeal and did not demolish the house. The council, when Mr Twist was apparently absent overseas, exercised its statutory power and demolished his house. He submitted that the council's act was illegal and the order requiring demolition upon which it was based had been issued without Mr Twist having an opportunity to be heard in relation to it.

28 In his judgment Barwick CJ identified the common law rule that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power. His Honour said that this rule was "both fundamental and universal" p 109 see Cooper v Wandsworth Board of Works (1863) 14 CB(NS) 180 [143 ER 414]; and R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171. The Chief Justice went on to observe at 109:

"...the legislature may displace the rule and provide for the exercise of such a power without any opportunity being afforded the affected person to oppose its exercise."

29 Again expressed in clear language, his Honour said at 110:

"However, if that is the legislative intention it must be made unambiguously clear. In the event that the legislation does not clearly preclude such a course, the court will, as it were, itself supplement the legislation by insisting that the statutory powers are to be exercised only after an appropriate opportunity has been afforded the subject whose person or property is the subject of the exercise of the statutory power. But, if the legislation has made provision for that opportunity to be given to the subject before his person or property is so affected, the court will not be warranted in supplementing the legislation, even if the legislative provision is not as full and complete as the court might think appropriate. Thus, if the legislature has addressed itself to the question whether an opportunity should be afforded the citizen to be relevantly heard and has either made it clear that no such opportunity is to be given or has, by its legislation, decided what opportunity should be afforded, the court, being bound by the legislation as much as is the citizen, has no warrant to vary the legislative scheme. But, if it appears to the court that the legislature has not addressed itself to the appropriate question, the court in the protection of the citizen and in the provision of natural justice may declare that statutory action affecting the person or property of the citizen without affording the citizen an opportunity to be heard before he or his property is affected is ineffective. The court will approach the construction of the statute with a presumption that the legislature does not intend to deny natural justice to the citizen. Where the legislation is silent on the matter, the court may presume that the legislature has left it to the courts to prescribe and enforce the appropriate procedure to ensure natural justice."

30 In the result in Twist the High Court decided that because a right of appeal which provided that a hearing de novo was available to the District Court, the recipient of a demolition order did not have to be afforded natural justice before the order issued. It has been suggested (see Aronson, Dyer & Groves, "Judicial Review of Administrative Action", third edition) that the presence of a statutory right of appeal does not logically displace an obligation to afford natural justice (see page 449). However, it is unnecessary to consider that debate further in the present case because, as I have indicated in relation to s 91, no right of appeal was provided.

31 Accordingly, the question of whether or not procedural fairness had to be afforded to the present defendants falls to be considered without any right in them to appeal the notice once issued. Counsel for the council submits that the legislature has made plain an intention to displace the rules of procedural fairness notwithstanding the lack of any right of appeal in s 91 by providing that the council may revoke or vary a notice once issued. The relevant power is provided in s 110 of the Act.

32 It is submitted, and for present purposes the submission may be accepted, that without s 110 once a notice has issued, the council has exhausted its power in relation to that notice and it could not be revoked or varied. It is submitted that because the statute provides this power in the council, and in the ordinary course the recipient of a notice may write to the council and ask that the notice once issued be revoked or varied, the legislature has made plain that there is no obligation to give notice to a prospective recipient before the primary notice is issued.

33 In the alternative, counsel for the council submits that the obligation, if there is an obligation to provide procedural fairness, is confined to the question of whether or not the regulatory authority should harbour a reasonable suspicion that the pollution incident has occurred or that a particular person is causing or has caused a pollution incident. It is submitted that, once that opinion has been formed, the section will operate without any obligation to inform the person who might be the recipient of the notice of an intention to issue it and provide that person with an opportunity to make representations as to whether or not a notice should issue and, as may be more important in particular cases, make representations as to the terms of that notice including the period of time in which it is provided for the clean-up to occur. This submission is founded upon the fact that, if a notice is issued to a person who it is later determined did not cause the pollution incident, then the recipient of the notice, having complied with it, may recover the cost of compliance from the person who caused the pollution pursuant to s 91(4) of the Act.

34 I do not accept either limb of the council's submission. It is plain that the issue of a clean-up notice has a capacity to significantly affect the rights of an individual or corporation and impose significant financial and other obligations.

35 Accordingly, unless the legislation in clear and unambiguous language displaces the common law obligation to provide procedural fairness, then in circumstances appropriate to the facts of the particular case, that obligation must be met.

36 To my mind, that obligation extends not only to the question of identifying the person who might reasonably be suspected but also to providing an opportunity to that person to make representations as to why a notice should not issue or as to the terms of that notice.

37 The fact that the council is provided by s 110 with a capacity to revoke or vary the notice does not, in my opinion, alter the primary obligation of the council. It may have been different if the power in s 110 was provided together with a statutory right to make representations or seek a review of the decision. But such a right has not been afforded by the legislature, and even if a recipient of a notice were to make representations asking that it be revoked or varied, there is no obligation on the council to consider those representations. In these circumstances, it seems to me that it could not be said that the legislature has made plain that the common law obligation has been displaced.

38 The council has submitted that Twist was decided some years ago and might properly be described as of venerable antiquity but less relevance. However, in cases too numerous to mention, the fundamental principles in that decision have been embraced and repeated in successive decisions in the High Court.

39 The only other question which requires consideration is whether or not a challenge to the effectiveness of the notice may be brought in these proceedings. That problem has been addressed on a number of occasions and is infected by the discussion, both in the authorities and in academic writings, of the concepts of "void" and "voidable" and the utility of the expressions "a nullity" or "valid and operative until challenged" and similar expressions, including the expression "void ab initio".

40 Such matters were recently addressed by the High Court in the Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, where Gaudron and Gummow JJ identified the conceptual difficulties which have been discussed. After referring to the decision in Calvin v Carr [1980] AC 574, their Honours said:

"In our view, it is neither necessary nor helpful to describe erroneous administrative decisions as 'void', 'voidable', 'invalid', 'vitiated' or, even, as 'nullities'. To categorise decisions in that way tends to ignore the fact that the real issue is whether the rights and liabilities of the individual to whom the decision relates are as specified in the decision. And, perhaps more importantly, it overlooks the fact that an administrative decision has only such force and effect as is given to it by the law pursuant to which it was made."

41 There are now a number of decisions in which it has been determined that an administrative decision which has no effect may be challenged in collateral proceedings, particularly proceedings in which the recipient of a notice or order is being prosecuted for a failure to comply with it: see Ousley v R (1997) 192 CLR 69 at 79-80 and 86-87, McHugh J at 100 and Kirby J at 146; Attorney-General (Commonwealth) v Breckler (1999) 197 CLR 83 at 108 and 131; see also the discussion in Cox & Hazell Pty Ltd v Gidney (1981) 1 NSWLR 468, in particular the judgments of Hope and Mahoney JJ.

42 It is plain that in circumstances in which an administrative decision has been made by a person, which is infected with jurisdictional error, which would include a failure to afford procedural fairness, that decision has no effect and is regarded in law as no decision at all: see Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476.

43 In those circumstances and given that the statute provides no right of appeal, it is, to my mind, inconceivable that if proceedings are brought in which it is alleged that a criminal offence has occurred by reason of a failure to comply with a notice, a defendant could not plead in its defence that the notice had no effect, there being no valid decision to issue it.

44 Accordingly, I am satisfied that in the present case, the council was required to provide the defendants with an opportunity to be heard with respect to whether or not the relevant notices should be issued. The defendants are entitled to defend these proceedings on the basis that because the duty of procedural fairness was not discharged, the summons should be dismissed.

45 I have previously related the conversation which occurred between the defendants and Mr McLaggan on 19 September. It is submitted by the council that that conversation includes material which would discharge the more confined obligation for procedural fairness, which, if the submission that there was no obligation at all is rejected, the council submits was the extent of the obligation. That submission, as I have indicated, is that the council was obliged to receive submissions as to whether or not a reasonable suspicion could be entertained.

46 It is correct that during the course of that conversation, consideration was given to the persons who were responsible for bringing the material to the site and spreading it, and in one sense the question of a reasonable suspicion was the subject of the conversation. As part of that conversation, the opportunity for the present defendants to deny any involvement and thus displace any suspicion was available. They did not do so, for the apparent reason that they accepted, to a limited extent, that each of them had a part in the process.

47 However, the conversations which occurred were confined to Messrs Cauchi and Farrugia. Their wives were not present, and accordingly it could not be said that any obligation to consult them in relation to the question of a reasonable suspicion was afforded.

48 However, leaving aside the question of who was present, it is apparent that the conversation did not take place in the context of the service of a notice upon the present defendants, the understanding of the participants being that the obligation fell upon Mr Galea to comply with the existing notices. There was no suggestion in the conversation that a notice might be issued which imposed any of those obligations upon any of the present defendants.

49 In any event, to my mind, the council's submission, as I have already indicated, must be rejected. Although the content of the duty to afford procedural fairness to individuals will vary depending upon the circumstances of the particular case, in relation to the present matter, to my mind, that duty required the council to inform the defendants that the question of whether a notice should be issued to them was under consideration and an opportunity should have been afforded to them to make submissions as to why that notice should not have issued.

50 Although I am satisfied that the duty in the present case required the defendants to be informed of the possibility of the issue of a notice and an opportunity to make representations in relation to whether that notice should issue and possibly its terms, I accept that there will be an infinite variety of circumstances in which a council or other authorised body may have to give consideration to the issue of a notice under s 91.

51 There will be cases where a pollution incident has occurred which requires urgent attention or where it is continuing to occur and immediate response may be required. In those circumstances, there may be only confined obligations which have to be fulfilled before an effective notice can be given. Each case will depend upon its own facts.

52 In the present case, the pollution incident was the bringing onto the land of a very considerable volume of fill which was allegedly contaminated with asbestos. Although that activity was, in the volume in which the material was deposited and because of its potential inclusion of asbestos, a very serious pollution incident undoubtedly requiring remedial action, it did not require an urgent response or at least did not require the issue of a notice without a reasonable opportunity for the defendants to make representations in relation to whether or not it should be issued.

53 Accordingly, although I have come to the conclusion that in the present case, notice was required to be given to the defendants and a reasonable opportunity afforded to them to make submissions, I should not be understood as providing any statement of general application.

54 For those reasons, the order I make is that each of the summons be dismissed.

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