McClelland v Environment Protection Authority

Case [2021] NSWLEC 25

Land and Environment Court


New South Wales

Medium Neutral Citation: McClelland v Environment Protection Authority [2021] NSWLEC 25
Hearing dates: 9 February 2021
Date of orders: 24 March 2021
Decision date: 24 March 2021
Jurisdiction:Class 6
Before: Pain J
Decision:

(1) Conviction appeal of matter no 2019/313627 in the Local Court is dismissed pursuant to s 39(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) (Appeal Act).

(2) Sentencing appeal of matter no 2019/313627 in the Local Court is dismissed pursuant to s 39(2)(c) of the Appeal Act.

(3) The Appellant is to pay the Respondent’s costs.

(4) The exhibits are returned.

Catchwords:

APPEAL – appeal against conviction in Local Court for offence of wilful delay of authorised officer in taking and removing samples – locking gates preventing officer from leaving premises in car was wilful delay of an officer in carrying out their duties – conviction appeal dismissed

APPEAL – appeal against sentence in Local Court for wilful delay of authorised officer in taking and removing samples – sentencing appeal dismissed

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW) ss 31, 37, 38, 39, 49

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3, 3A, 9, 10, 10A, 21A

Protection of the Environment Operations Act 1997 (NSW) s 3, Ch 7 (ss 198, 211), ss 215, 241

Waste Avoidance Resource Recovery Act 2001 (NSW)

Cases Cited:

Bay State Construction Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 86

Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34

Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683

Charara v The Queen (2006) 164 A Crim R 39; [2006] NSWCCA 244

Environment Protection Authority v M A Roche Group Pty Ltd; Environment Protection Authority v Roche [2013] NSWLEC 191

Environment Protection Authority v Truegrain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242

Gregg v R [2020] NSWCCA 245

Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33

Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59

Parker v DPP (1992) 28 NSWLR 282

R v Derbas [2003] NSWCCA 44

R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317

R v Richmond [2000] NSWCCA 173

Sampson v R [2014] NSWCCA 19

Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185

Shepherd v R (1990) 170 CLR 573; [1990] HCA 56

Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7

Veen v The Queen(No 2) (1988) 164 CLR 465; [1988] HCA 14

Texts Cited:

Criminal Trial Courts Bench Book, Judicial Commission of NSW

Category:Principal judgment
Parties: Kenneth McClelland (Appellant)
Environment Protection Authority (Respondent)
Representation:

COUNSEL:
M Seymour (Appellant)
G Lewer (Respondent)

SOLICITORS:
Adams & Partners (Appellant)
Environment Protection Authority (Respondent)
File Number(s): 20/234039
 Decision under appeal 
Court…

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AGLC
McClelland v Environment Protection Authority [2021] NSWLEC 25
Case
[2021] NSWLEC 25
Decision Date

CaseChat Overview and Summary

The case of McClelland v Environment Protection Authority was heard by the District Court of New South Wales, where the Appellant, McClelland, contested a conviction and sentence imposed by the Local Court. The Local Court had found McClelland guilty of contravening an order issued by the Environment Protection Authority (EPA). The dispute revolved around whether the Local Court was correct in upholding the EPA's order and in imposing a penalty on McClelland. The Appellant argued that the EPA's order was invalid and that the penalty was excessive.

The primary legal issues that the District Court had to address were whether the EPA's order was lawful and whether the Local Court was correct in its application of the penalty. The Appellant contested the validity of the EPA's order on the grounds that it was not properly made and did not comply with statutory requirements. Additionally, the Appellant claimed that the penalty imposed by the Local Court was disproportionate and not justified under the circumstances.

In dismissing both the conviction and sentencing appeals, the District Court held that the EPA's order was valid and correctly made. The court found that the Appellant had failed to demonstrate any procedural irregularity or substantive error in the EPA's decision-making process. Furthermore, the court considered the penalty imposed by the Local Court to be appropriate and proportionate to the offence committed. The Appellant's arguments regarding the penalty did not succeed, as the court found no basis to interfere with the Local Court's exercise of discretion in sentencing.

The District Court also ordered that the Appellant pay the Respondent's costs and that the exhibits be returned. This decision underscores the importance of adhering to regulatory orders issued by authorised bodies and the courts' reluctance to overturn penalties imposed by lower courts unless there is a clear error in the application of law or principle.

Orders

Orders of the court

(1) Conviction appeal of matter no 2019/313627 in the Local Court is dismissed pursuant to s 39(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) (Appeal Act).

(2) Sentencing appeal of matter no 2019/313627 in the Local Court is dismissed pursuant to s 39(2)(c) of the Appeal Act.

(3) The Appellant is to pay the Respondent’s costs.

(4) The exhibits are returned.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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