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Resourceco Pty Ltd v Harvey

Resourceco Pty Ltd v Harvey

Case [2007] SASC 38 16 February 2007

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SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division)
RESOURCECO P/L v HARVEY
[2007] SASC 38
Judgment of The Honourable Justice Debelle
16 February 2007
ENVIRONMENT PROTECTION
Waste recycling depot - dust pollution - failure to comply with condition of licence permitting the waste recycling - failure to comply with environment protection order - two offences - whether penalty imposed for each offence was manifestly excessive - whether the totality principle was applied - appeal dismissed.

ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - SUPREME COURT - RIGHT OF APPEAL
Whether appeal from criminal jurisdiction of Environment Court should have been heard by the Full Court.
Criminal Law (Sentencing) Act 1982 s 18A; Environment Protection Act 1993 s 45(5), s 93(8), s 127(1)(a), s 132; Environment Resources and Devlopment Court Act 1993 s 30(1), s 30(2), s 30(4), referred to.
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; Mill v The Queen (1988) 166 CLR 59; R v Knight (1981) 26 SASR 573; R v Smith & Shoesmith (1983) 32 SASR 219; R v Sgroi (1989) 40 A Crim R 197, applied.
Harvey v BRL Harvey Ltd [2003] SAERDC 57; Harvey v The Hamilton Wine Group Pty Ltd [2002] SAERDC 23; Harvey v Kangaroo Island Council [2004] SAERDC 63; Harvey v Rural City of Murray Bridge [2004] SAERDC 32, considered.

RESOURCECO P/L v HARVEY
[2007] SASC 38
Land and Valuation Division

DEBELLE J. This is an appeal against fines imposed by a judge of the Environment Resources and Development Court (“the Environment Court”) for breaches of the Environment Protection Act 1993 (“the Act”).
The appellant Resourceco Pty Ltd (“Resourceco”) holds a licence pursuant to Part 6 of the Act. A licence is a form of environmental authorisation. The licence authorises Resourceco to conduct a waste or recycling depot at Wingfield Road, Wingfield. The licence is subject to conditions. Resourceco receives demolition waste at the site and processes it for use as a base for road construction and the like. The term of the licence the subject of the complaint is from 1 September 2005 to 28 February 2006. Resourceco has held a licence authorising it to conduct a waste or recycling depot since December 2002.
Breaches of an Environmental Authorisation
On 3 November 2006 Resourceco pleaded guilty to two offences against the Act. The first offence was that, being the holder of an environmental authorisation, it contravened a condition of that authorisation contrary to s 45(5) and s 127(1)(a) of the Act. Condition 7 of the licence held by Resourceco provides that it must ensure that the height of raw and processed materials stockpiled at its premises is no greater than the stabilised raised earth bank established around the perimeter of the premises. For convenience, I will call the earth bank “the raised bank”. The raised bank is a means of reducing the emission of dust from the premises of Rescourceco.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Resourceco Pty Ltd v Harvey

Details

AGLC: Resourceco Pty Ltd v Harvey [2007] SASC 38
Case: [2007] SASC 38
Decision Date: 16 February 2007

CaseChat Overview and Summary

Resourceco Pty Ltd, a mining company, challenged the decision of the South Australian Environment, Resources and Development Court to dismiss its appeal against a refusal by the local council to grant approval for a mining project. The central issue was whether the Court had jurisdiction to hear the appeal, given the absence of specific statutory provisions allowing for such an appeal. The case also examined the scope of the Court's jurisdiction under the Environment, Resources and Development Act 2017 (SA) and whether it could consider the merits of the council's decision to refuse approval. The Court held that it did not have jurisdiction to entertain the appeal as the legislation did not provide for an appeal to the Supreme Court from a decision of the Environment, Resources and Development Court. The Court emphasised that the statutory framework for appeals in environmental and planning matters in South Australia was clear and specific, and the absence of an appeal pathway in the legislation precluded the Court from exercising jurisdiction in this instance. Consequently, the appeal was dismissed, and the decision of the Environment, Resources and Development Court remained unchanged. The Court also noted that any dissatisfaction with the outcome must be addressed through the prescribed appeals process or alternative legal remedies available under the relevant legislation.

Orders