Prior's Bus Service Pty Ltd v Eurobodalla Shire Council

[2003] NSWLEC 98

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Reported Decision: (2003) 126 LGERA 116

Land and Environment Court

of New South Wales

CITATION:	Prior's Bus Service Pty Ltd v Eurobodalla Shire Council [2003] NSWLEC 98
PARTIES:	APPELLANT Prior's Bus Service Pty Ltd RESPONDENT Eurobodalla Shire Council
FILE NUMBER(S):	60002 of 2002
CORAM:	Pain J
KEY ISSUES:	Appeal :- prosecution - appeal from decision of magistrate in Local Court - whether elements of offence proved - definition of water pollution - whether proven that oil was placed in a position where it was "likely" to get to a gutter
LEGISLATION CITED:	Evidence Act 1995 s 144 Justices Act 1902 s 133AO Protection of the Environment Operations Act 1997 s 120(2) Protection of the Environment Operations (General) Regulation 1998 Sch 3
CASES CITED:	Environmental Protection Authority v Brazel (2002) 119 LGERA 72
DATES OF HEARING:	20/01/2003
DATE OF JUDGMENT:	01/21/2003
LEGAL REPRESENTATIVES:	APPELLANT Mr D Wilson (barrister) SOLICITORS Thomson Rich O'Connor RESPONDENT Mr D Jordan (barrister) SOLICITORS Kennedy & Cook

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

50120 of 2002

Pain J

21 January 2003
PRIOR'S BUS SERVICE PTY LIMITED
Appellant
v
EUROBODALLA SHIRE COUNCIL
Respondent
Judgment

1. This is an appeal by the Appellant against the conviction, which was entered on 29 July 2002 at Bateman’s Bay Local Court, in relation to a charge of causing pollution of waters contrary to s 120(2) of the Protection of the Environment Operations Act 1997 (the PEO Act). The appeal has been brought in the Land and Environment Court pursuant to Pt 5B of the Justice Act 1902 and in that sense it is a re-hearing conducted on the transcript of the evidence before the Local Court.

2. The information from the Local Court includes the following particulars:
On 19/3/2001 Geoffrey Roy Castle, an employee of the defendant, did transport from the premises at 2 Hughes Street, a drum containing waste engine oil and oil pit refuse, on the back of a Toyota Hilux Utility registered No. SKB 771 and at the intersection of Beach Road and Glenella Rd, a large quantity of oil spilled onto the roadway and continued to spill onto Glenella Rd as the vehicle proceeded along the road. The intersection of Glenella Rd and Beach Rd are part of the storm water catchment for Joe’s Creek and the Clyde River.


3. At the commencement of its case the Prosecutor made clear it is confining its case to a spill of oil on the roadway at the intersection of Beach Road and Glenella Road only, and not in relation to any spilling of oil along Glenella Road (as the information as filed stated). Only the intersection at Beach Road and Glenella Road is relevant on this appeal.

4. Essentially the matter before me is to decide, in the circumstances of the evidence as contained in the transcript, whether there was water pollution, as defined under the PEO Act, at the intersection of Beach Road and Glenella Road. The definition of water pollution will be referred to in more detail later in the judgment. I should also note that oil is a prescribed substance under Sch 3 to the Protection of the Environment Operations (General) Regulation 1998.

5. The Prosecutor argued there are essentially four elements which needed to be proved.

First element
6. The first element was whether oil dripped from the utility truck identified in the information. The Prosecutor relied on the transcript of evidence before the magistrate of Peter Wallace, an off-duty police officer, who observed the utility dripping oil near the council tip on Beach Road and followed the utility into the tip where he made further observations, including that the utility had an oil like substance dripping from the rear tray at the tip. This officer had experience as a police officer in dealing with oil spills but also prior experience before he joined the police force as a fitter machinist, had "hands on" experience working with his own motor vehicles and was well acquainted with issues related to the characteristics of oil. His observations were confirmed by Senior Constable Lutze who also attended at the tip. It is also clear from photographs taken that day at the tip and exhibits in the hearing before the magistrate that there was an oil like substance in the back of the utility. There was also evidence relied on by the Prosecutor from the tip manager, Mr Rickson, who also identified a black viscous substance which was splashed from the utility at the tip.

7. I should also record that Mr Castle, the vehicle driver, agreed the utility was dripping oil when questioned by Senior Constable Lutze at the tip on the day of the alleged offence and he in fact signed a handwritten statement to that effect at the time.

8. There was contrary evidence given at the hearing before the magistrate, particularly from Mr Timothy Downey the Appellant's manager who gave evidence that the material he loaded into the truck was a quite dry slurry. The Appellant's counsel did not particularly argue any issues in relation to this matter before me at the appeal hearing. I am prepared to accept on the basis of the evidence as recorded in the transcript that the substance leaking from the drum in the rear of the utility truck was oil.

Second element
9. The second element I need to consider is whether the oil spilled at the intersection of Beach Road and Glenella Road came from the Appellant's utility. The evidence the Prosecutor relied on as disclosed in the transcript was circumstantial because there was no witness who directly saw the spill come from the utility. The Prosecutor argued that oil was seen at the intersection by Constable Wallace who shortly after saw oil dripping from the utility onto Beach Road on its way to the Prosecutor's tip. He noticed that the spill was still shiny when he saw it, suggesting it was recent. Senior Constable Lutze, who saw the fire brigade cleaning up the spill at the intersection, confirmed that the oil at the intersection appeared to be the same oil as that observed on the utility when he was at the tip. Senior Fire Officer Van Luin also confirmed the spill was recent. There was no dispute the utility did travel through that intersection.

10. The Appellant argued that there was no direct evidence that oil was spilt from the utility and further that the utility was not carrying oil. The route taken by the Appellant's utility was also disputed before the magistrate in relation to the original information which cited spills along Glenella Road. As I have already noted this was not pursued before me at the appeal.

11. I accept that on the circumstantial evidence before me the Prosecutor has proved this part of the offence, as set out in par 17 of the Prosecutor’s written submissions. This element has been proved beyond reasonable doubt.

Third element
12. The third element is the question of whether the spill constitutes water pollution. This is the crux of the matter from my perspective. It is necessary for the purposes of this appeal that the Prosecutor prove that there is water pollution within the meaning of the PEO Act. In the dictionary section of the PEO Act water pollution has a number of meanings including, under par (d):
placing any matter (whether solid, liquid or gaseous) in a position where:

(i) it is likely to fall, descend, be washed, be blown or percolate,
(ii) into any waters, onto the dry bed of any waters, or into any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted

13. Essentially the Prosecutor has to show the oil spill at the intersection of Beach Road and Glenella Road was likely to get to a gutter in these circumstances.

14. The first question I have to consider is was there guttering at the intersection? The Appellant argued that the evidence was equivocal on this issue but having read the relevant portion of the transcript in the overall context of the evidence I think there is sufficient evidence that there was guttering at this intersection. I note particularly the evidence of Constable Wallace and the transcript on pages 24 and 25 running from line 40 on page 24 to line 2 on page 25 and I also note that there was judicial notice taken by the magistrate that there was guttering along Beach Road, so that I am satisfied on that matter. However, I should note that there was no evidence of the volume of oil spilt at the intersection nor its location on the road at the intersection nor the distance from the gutter of the oil spilled. Nor was any evidence given as to the camber of the road to suggest in which direction an oil spill would flow.

15. It was argued by the Prosecutor that I could take judicial notice pursuant to s 144 of the Evidence Act 1995 of two matters. Firstly, the purpose of gutters being constructed by roadways was for the collection of water or liquid running off road surfaces and secondly, that roads are designed so that water runs off the road into the gutter, due to the camber of the road.

16. There is also evidence which the Prosecutor relied on from the fire officer, Mr Van Luin, to the effect that the fire brigade, which was called to clean up the oil spill at the intersection, used approximately 30 litres of dispersant for what was termed a minor incident. In the case of the fire brigade this means less than 100 litres spilt.

17. The Prosecutor also referred to evidence that there was a large amount of an oil like substance dripping from the utility while it was observed on the way to the tip and at the tip. It was also clear from the photos tendered that there was a large amount of oil in the rear of the utility.

18. Senior Constable Lutze also gave evidence that when he saw the fire brigade "they appeared to be cleaning up the oil spill because there was stuff spread on the ground and they had brooms out and they were sweeping in the thicker end of the oil spill" (transcript at p 43).

19. The question is what does "likely" mean in the context of the extended definition of water pollution under the PEO Act? Both the Appellant and the Prosecutor relied on Environment Protection Authority v Brazel (2002) 119 LGERA 72, a decision of Talbot J where his Honour had to consider the meaning of “likely”. It is worth setting out some of the facts briefly of that matter. An employee of the defendant’s pest control business injected chemicals into holes that had been drilled in a concrete slab in order to treat a termite infestation at a customer’s premises. The chemical reached the street gutter. Although there was no conclusive explanation as to how it reached the stormwater pipe or discharged into the street, Talbot J held that it was proven beyond reasonable doubt that the chemical that was injected into the holes in the concrete slab had found its way into the street gutter. The street gutter led to a stormwater sump which then connected by tunnel to a drainage channel which in turn ran into a tributary of a creek. After the house down pipes had been flushed out and the liquid contained and removed, none having then reached the creek, a council officer washed out the road gutter, the water travelling down the gutter and into the creek. Talbot J held, at par 47, that although the chemical made its way into the creek it occurred as a consequence of an instruction given by a council officer to flush the system with water.

20. In relation to the definitions in paragraphs (c) and (d) of the definition of water pollution in the dictionary for the PEO Act, (see [3] of Talbot J's judgment) his Honour accepted that the meaning of the word “likely” meant "a real or not remote chance or possibility" (at [63]). Talbot J held that on the facts of that case that (at [63]):
In the absence of a rational explanation and notwithstanding that the chemical actually reached the street gutter, the Court cannot be satisfied beyond reasonable doubt that the matter was placed in a position where it was "likely" to percolate into the drainage system.


21. The Prosecutor primarily relied on the evidence, as I have noted, of the fire brigade officer, Mr Van Luin, that if the material had not been absorbed it would have flowed down the gutter and then into the drains (par 21 of the Prosecutor’s written submissions, which was an extract from the transcript at p 91 to 92). This was said to be conclusive on this element.

22. The Prosecutor also distinguished the facts in Brazel , which I have just outlined, because in the matter before me the spill on the roadway is clearly in the vicinity of the gutter so that Brazel , where the potential connection between the defendant’s action and the water pollution was held not to be likely, could not be said to apply in this case.

23. However, the Appellant argued that there was no evidence of the actual surroundings at the spill, there was no evidence of the volume of the spill and there was also no evidence as to whether there was likely to be any flow from the road into the gutter. Based on the Brazel decision, the Appellant submitted that the evidence relied on by the Prosecutor in relation to Mr Van Luin did not suggest this spill was likely to descend into the gutter and was not sufficient to discharge the legal onus on the Prosecutor.

24. It was also argued by the Appellant that the cleanup operations referred to by Mr Van Luin by their nature alone could have caused oil to go down the drain if the dispersal method of flushing down the drains had been used. In that regard the Appellant drew an analogy to Brazel and relied on the references at par 46 and 47 of Talbot J in that case, which I have noted above at par 19, where he referred to the fact that it was the council officer’s flushing of the system which caused the pollution to occur.

25. The Appellant further argued that it was not appropriate to take judicial notice of the matters identified by the Prosecutor in relation to the purpose of the gutter and the road camber at this point so as to satisfy myself that there would be a flow of oil from the road to the gutter.

Finding on element 3
26. The Prosecutor must prove each element of the offence beyond reasonable doubt. On the evidence available was there is a real chance that oil was likely to descend into the gutter from the road? In the circumstances I do not think the Prosecutor has proved this element of the offence beyond reasonable doubt. I do not think it appropriate that I take judicial notice that the road camber generally is designed to ensure run off in all cases.

27. The circumstances of each individual case has to be proved and this has not been done to a sufficient extent in my view. The fact that a lot of oil was in the tray of the utility at the tip and there was some dripping down at the tip does not provide any information to the Court on what volume was dropped at the intersection. There are simply no observations in evidence presented to the Court as to the volume or the location of the oil spill at the intersection. The statement of Mr Van Luin relied on by the Prosecutor in my view is insufficient proof on its own to discharge the onus of proof held by the Prosecutor and it seems to me that the interpretation attributed to this by the Appellant is open. There is insufficient detail provided as to the circumstances of the spill for me to be satisfied beyond reasonable doubt on this element.

Fourth element
28. I should note for completeness that the fourth element of the offence and the Prosecutor's submissions in relation to that element that the utility was wholly in the Appellant's control was not disputed.

29. Given my finding that I do not consider there was sufficient evidence in relation to water pollution the Prosecutor has not made out the water pollution charge under the extended definition in the PEO Act.

30. I note that under s 133AO of the Justice Act 1902 I have power to set aside or quash the magistrate’s decision.

Orders
31. The Court orders that:
1. The appeal is allowed.
2. The conviction entered in the Local Court is set aside.
3. The sentence imposed in the Local Court in set aside.
4. The order made in relation to costs in the Local Court is set aside.
5. The hearing on costs is set down for 9.15 am on 22 January 2003.