McGerty v Borg [1991] NSWLEC 41 (11 April 1991)

[1991] NSWLEC 41

Land and Environment Court

of New South Wales

CITATION:	McGerty v Borg [1991] NSWLEC 41 (11 April 1991) [1991] NSWLEC 2
PARTIES:	McGerty v Borg
FILE NUMBER(S):	50028 of 1990
CORAM:	Bignold J
KEY ISSUES:	:-
LEGISLATION CITED:	Clean Waters Act 1970 Land and Environment Court Act) 1979 Clean Waters Regulations, 1972
CASES CITED:	John L. Proprietary Limited v. The Attorney-General for New South Wales (1987) 163 C.L.R. 508; Stanton v. Abernathy (1990) 19 N.S.W.L.R. 656 at 667; generally Mathews v. Goulburn Wool Processors Proprietary Ltd. (1987) 10 N.S.W.L.R. 419
DATES OF HEARING:
DATE OF JUDGMENT:	04/11/1991
LEGAL REPRESENTATIVES:

JUDGMENT:

Bignold J.: The Defendant is charged with an offence against s.16 of the Clean Waters Act 1970 in that it is alleged that on 10th August, 1989 he did pollute waters. The charge has been defended.

When the hearing commenced Counsel for the Defendant submitted that the summons was defective because it failed to specify "the waters" alleged to be polluted or to adopt the familiar words of the common law the summons was defective because it "did not specify the time, place and manner of the Defendant's acts or omissions: see John L. Proprietary Limited v. The Attorney-General for New South Wales (1987) 163 C.L.R. 508.

It is not denied that before the trial the Defendant's solicitors had sought and obtained from the Prosecutor particulars of the offence and those particulars included reference to the waters said to be polluted.

In these circumstances I held that the summons (and the related order under s.41 of the Land and Environment Court Act ) 1979 were not incurably defective and that s.43 of the Land and Environment Court Act operated to avoid any defect in substance in the process - cf. John L. Proprietary Ltd. at pp.529/530 (per Brennan J.) and Stanton v. Abernathy (1990) 19 N.S.W.L.R. 656 at 667 et seq, there being no suggestion of any denial of natural justice in the defective process.

However to avoid all doubt and possible unfairness to the Defendant I ordered the Prosecutor to provide further particulars of the charge, particularly in relation to the nature of the alleged "pollutant" and the nature of the alleged "act of pollution". The Prosecutor thereupon provided these further particulars - the pollutant was said to be "piggery effluent" and the act of pollution was said to be placing that piggery effluent on the Defendant's property (situate at Burley Road, Horsely Park) in a position where the effluent was observed on the day of the alleged offence to leave the property at its north western corner and flow down the hillside of an adjoining paddock towards and into an unnamed tributary of Reedy Creek. It is to be noted that in furnishing these particulars the Prosecution has elected to rely upon the offence of "deemed pollution" provided by s.16(2) of the Clean Waters Act 1970 which relevantly provides:

"Without limiting the generality of subsection (1), a person shall be deemed to pollute waters if -

(a) he places any matter, whether solid, liquid or gaseous, in a position where it falls, descends, is washed, is blown or percolates... into any waters or causes or permits any such matter to be placed in a position...

and the matter would had it been placed in any waters have polluted or have been likely to pollute those waters...": see generally Mathews v. Goulburn Wool Processors Proprietary Ltd. (1987) 10 N.S.W.L.R. 419.

The Prosecution case was based upon circumstantial evidence. For reasons that were never adequately explained, although the two investigating officers of the Fairfield City Council (including the Prosecutor) observed on the day of the alleged offence the flow of effluent from the Defendant's property (which is developed by a large scale piggery) down the hill of the adjoining paddock they did not on that occasion physically enter the Defendant's property and they did not observe the precise emanation or source of the flow of effluent so observed. Indeed their inadequate investigation left the actual cause of the flow or discharge of effluent from the Defendant's premises an unsolved mystery. Nor (for reasons that are not readily apparent) did the Council investigating officers collect a sample of the observed effluent flowing from the Defendant's property but instead collected a sample of the effluent as it entered the aforesaid creek some 250m distant from the point where the effluent had left the Defendant's property.

Moreover it was not until some 4 weeks had elapsed after their observation that the Council investigation officers spoke to the Defendant about the pollution incident. (There is a dispute as to the content of that conversation).

Despite these serious deficiencies in the investigation of the pollution incident by Council's officers, the Prosecution case establishes the following primary facts in respect of the alleged offence -

(i) on 10th August, 1989 the Defendant was the owner and occupier and operator of a rural property developed as a piggery accommodating some 3,000 pigs;

(ii) the Defendant's piggery generated, on a daily basis, a vast quantity of piggery effluent;

(iii) the method of treating piggery effluent at the Defendant's premises involved transferring the effluent to a series of anaerobic dams or ponds located below each other, on the property which process enabled waste waters to be recycled and where necessary disposed of, by spray irrigation onto a paddock on the property;

(vi) on that day two Council officers (who were familiar with the Defendant's piggery) were present in vicinity of the north-western corner of the Defendant's property and observed a flow of liquid coming from the Defendant's premises in a channel like formation and travelling in a south-westerly direction across an adjoining paddock down the natural slope of the landform towards the creek situate some 250m from the north western corner of the Defendant's property;

(v) the liquid so observed was dark or chocolate in colour, possessed a strong ammonia odour, (typical of piggeries), contained suspended solid materials and was described by both observers, (who were familiar with the Defendant's piggery premises and in the case of the Prosecutor who had some 25 years experience of inspecting piggeries), as "pig effluent";

(iv) the chemical analysis of a sample of the effluent collected immediately before it entered the creek disclosed high levels of -(i) biochemical oxygen demand; (ii) total kjeldahl nitrogen; and (iii) ammonia, and upon introduction into creek waters would change the chemical condition of the waters.

At the close of the Prosecution case the Defendant submitted that there was no case to answer. This submission was primarily founded on the proposition that the evidence did not establish any relevant link between the Defendant and the alleged act of pollution. In particular it was submitted that the Prosecution case wholly failed to establish that the Defendant had relevantly "placed" the alleged pollutant on his property.

I rejected the Defendant's "no case to answer" submission whereupon the Defendant called expert evidence and gave evidence himself.

In holding that there was a case for the Defendant to answer I was of the opinion that the primary facts were legally capable of supporting two inferences - (i) that the Defendant had placed (or caused to be placed) the effluent material on his property in a position where it fell or descended into the waters of Reedy Creek (or its unnamed tributary) and (ii) that the material so placed was a "pollutant" within the definition contained in s.5 of the Clean Waters Act (vide paragraph (a) and paragraph (c) (read together with cl.2(2)(a)(v) and (vi), of the Clean Waters Regulations , 1972)).

The expert evidence called by the Defendant described in greater detail the Defendant's premises (comprising some 12 hectares) the catchment area of the Defendant's premises and natural drainage lines on and from the Defendant's premises and contains an assessment of the Defendant's waste water treatment system. It also includes chemical analyses of samples collected from the first and final dams in the series of anaerobic dams on the Defendant's premises (collected some 1 year after the date of the alleged offences) and provides a discussion of possible causes of the pollution incident the subject of the present charge.

The Defendant vehemently denied that his piggery (which he has operated for some 16 years) has ever discharged piggery effluent into the nearby creek. He denied the Prosecutor's account of the conversation held some 4 weeks after the alleged offence and claimed that the first time he knew of the charge was when he had received the summons some 6 months after the alleged offence.

I do not accept the Defendant's testimony that the first time he became aware of the Council's allegation that he had polluted the creek was when he received the summons. This testimony is clearly at odds with a letter he wrote to the State Pollution Control Commission in September, 1989 shortly after the conversation he had with the Prosecutor. In his letter Defendant states, inter alia:

"I write to you about the problem I have with Fairfield Council, they intend to prosecute me for my water to the creek."

However there is no evidence that the Defendant knew on the day of the alleged offence that there was a substantial discharge of piggery effluent from his premises and the Prosecution evidence of the contents of the conversation with the Defendant (held some 4 weeks after the date of the alleged offence) is not satisfactory. In any event I do not regard the evidence of that conversation as containing any relevant admission of guilt by the Defendant.

Having regard to the whole of the evidence I am satisfied beyond reasonable doubt, as a matter of inference from the primary facts, that the Defendant is guilty of the offence charged.

In so concluding I am satisfied beyond reasonable doubt that the Defendant placed, or caused to be placed, the piggery effluent, being a "pollutant", in a position on his property where it descended or fell into the waters of Reedy Creek, and I am satisfied that the proven facts exclude all reasonable hypotheses consistent with the Defendant's innocence. The possibility of such hypotheses being available in the present case arose from the expert testimony called by the Defendant. Firstly there was the expert's opinion that having regard to topographical features it was possible that the effluent observed on 10th August, 1989 coming from the Defendant's property had emanated from the nearby piggery property of his brother, Michael Borg, if the discharge of piggery effluent from the latter's property onto the paddock separating his property from the Defendant's property was confined to a small section of the intervening paddock in its north western corner. However the Prosecution evidence of the observations made by the Council investigating officers of Michael Borg's property and the intervening paddock, immediately after they had witnessed the flow of effluent from the Defendant's property, wholly negates that possibility since they observed on the intervening land that the hose from Michael Borg's effluent dam was so positioned that any discharge would, because of land contours, run off and drain in the opposite direction from the Defendant's property, and that there was evidence of recent run-off and drainage of piggery effluent in that opposite direction. Moreover the chemical analysis of the sample of piggery effluent discharged from Michael Borg's piggery is substantially different (in terms of levels of concentration) from the chemical analysis of the aforesaid sample of the piggery effluent from the Defendant's property.

Secondly the expert's opinion that run-off and overflows from the Defendant's property would traverse a natural drainage line across paddocks grazed by horses (and possibly cattle) and through a garbage tip (and hence be subjected to contamination by pollutants from those sources) is contrary to the fact established by by the Prosecution evidence that the flow of piggery effluent from the Defendant's property traversed an entirely different pathway.

Accordingly at the end of the day my assessment of the whole of the evidence is that there is nothing in the Defence case which disturbs any of the primary facts established by the Prosecution case that I have earlier summarised. Indeed the expert testimony adduced by the Defendant supports and strengthens those primary facts - eg. it establishes from relevant land form and topography features and neighbouring land uses that there was no source, other than the Defendant's piggery, for the discharge of effluent observed coming from the Defendant's property on 10th August, 1989, and accordingly strengthens the inferences I have drawn from those primary facts.

The proven facts of the present case have excluded any reasonable hypothesis (raised or advanced by the Defendant) consistent with the innocence of the Defendant and I am satisfied beyond reasonable doubt of the Defendant's guilt.

Accordingly I find the Defendant guilty as charged.