Secretary, Department of Planning and Environment v Sell and Parker Pty Ltd

[2022] NSWLEC 60

Land and Environment Court

New South Wales

Medium Neutral Citation:

Secretary, Department of Planning and Environment v Sell & Parker Pty Ltd [2022] NSWLEC 60

Hearing dates:

5, 6, 7, 8, 9, 22, 23 July and 17 August 2021

Date of orders:

19 May 2022

Decision date:

19 May 2022

Jurisdiction:

Class 5

Before:

Pepper J

Decision:

See orders at [467].

Catchwords:

ENVIRONMENTAL OFFENCES: offender charged with two offences of contravening ss 76A(1)(b) and 125(1) of the Environmental Planning and Assessment Act 1979 – determination of appropriate sentences – sentencing principles – extent of environmental harm caused by the commission of the offences – state of mind of the offender at the time of the commission of the offences – whether the defendant held a genuine and reasonable belief that the prosecutor had exercised its discretion not to prosecute and that it was entitled to continue to offend – De Simoni principle – objective seriousness of the commission of the offences – whether contrition and remorse demonstrated – specific and general deterrence warranted – comparable cases – application of the totality principle – defendant convicted and fined in respect of both offences – order for moiety made – publication order made.

Legislation Cited:

Blacktown Local Environmental Plan 2015, cl 2.1

Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A(2), 21A(3), 22, 23

Criminal Procedure Act 1986, ss 257B, 257G

Environmental Planning and Assessment Act 1979, ss 5, 76A(1), 119J, 119K(3), 121B, 125, 125A, 125B, 126(2A)

Fines Act 1996, ss 6, 122

Protection of the Environment Operations Act 1997, ss 64(1), 250(1)(a)

Cases Cited:

ACR Trading Pty Ltd v Fat-sel Pty Ltd (1987) 11 NSWLR 67

Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357

Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58

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

Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304

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

Chief Executive, Office of Environment and Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109

Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482

Dincel Constructions System Pty Ltd v Penrith City Council [2021] NSWCCA 133

Elyard v The Queen [2006] NSWCCA 43

Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278

Environment Protection Authority v Barnes [2006] NSWCCA 246

Environment Protection Authority v Crown in the Right of New South Wales (Office of Environment and Heritage) [2019] NSWLEC 66

Environment Protection Authority v Dib Hanna Abdallah Hanna [2018] NSWLEC 80; (2018) 235 LGERA 114

Environment Protection Authority v Gilder [2018] NSWLEC 119

Environment Protection Authority v GrainCorp Operations Limited [2019] NSWLEC 143

Environment Protection Authority v Koppers Carbon Materials & Chemicals Pty Ltd (the Spill Incident) [2021] NSWLEC 12

Environment Protection Authority v M A Roche Group Pty Ltd [2014] NSWLEC 114

Environment Protection Authority v M A Roche Group Pty Ltd [2015] NSWLEC 29

Environment Protection Authority v Minto Recycling Pty Limited [2019] NSWLEC 193

Environment Protection Authority v Mortdale Recycling Pty Ltd [2019] NSWLEC 106

Environment Protection Authority v Rands [2019] NSWLEC 23

Environment Protection Authority v Sam Abbas (also known as Osama Abbas) [2021] NSWLEC 57

Environment Protection Authority v Sell and Parker Pty Ltd [2006] NSWLEC 626

Environment Protection Authority v Sell and Parker Pty Ltd [2007] NSWLEC 64

Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100

Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299

Environment Protection Authority v Wyanga Holdings Pty Ltd; Environment Protection Authority v Cauchi [2015] NSWLEC 78

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

Harris vHarrison [2014] NSWCCA 84; (2014) 86 NSWLR 422

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

Hornsby Shire Council v Henlong Property Group Pty Ltd (No 2) [2019] NSWLEC 17

Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616

Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170

LN v The Queen [2020] NSWCCA 131

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Martin v R; R v Martin [2021] NSWCCA 316

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

Minister for Planning v Moolarben Coal Mines Pty Ltd [2010] NSWLEC 147; (2010) 175 LGERA 93

Morris McMahon & Co Pty Limited v SafeWork NSW [2019] NSWCCA 36

Mouawad v The Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120

Owens v R [2017] NSWCCA 16

Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610

Pesic v Sutherland Shire Council [2019] NSWLEC 38

Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289

Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253

R v AB [2011] NSWCCA 229; (2011) 59 MVR 356

R v De Simoni [1981] HCA 31; (1981) 147 CLR 383

R v Dodd (1991) 57 A Crim R 349

R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267

R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159

R v Nichols (1991) 57 A Crim R 391

R v Olbrich [1999] HCA 54; (1999) 199 CLR 270

R v Oliver (1980) 7 A Crim R 174

R v Solomon [2005] NSWCCA 158; (2005) 153 A Crim R 32

R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383

R v Toohey [2019] NSWCCA 182

R v Visconti [1982] 2 NSWLR 104

R v Wheeler [2000] NSWCCA 34

R v Youkhana [2004] NSWCCA 412

Secretary, Department of Planning and Environment v Boggabri Coal Pty Limited [2014] NSWLEC 154

Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 7) [2021] NSWLEC 26

Secretary, Department of Planning, Industry and Environment v Wollongong Recycling (NSW) Pty Ltd [2020] NSWLEC 125; (2020) 245 LGERA 241

The Council of the Municipality of Kiama v Pacific Real Estate (Warilla) Pty Limited [2009] NSWLEC 191

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

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

Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561

Water NSW v Barlow [2019] NSWLEC 30; (2019) 244 LGERA 1

Category:

Sentence

Parties:

Secretary, Department of Planning and Environment (Prosecutor)
Sell & Parker Pty Ltd (Defendant)

Representation:

Counsel:
S Buchen SC and A Bonnor (Prosecutor)
T Howard SC and J Johnson (Defendant)

Solicitors:
Secretary, Department of Planning and Environment (Prosecutor)
Allens (Defendant)

File Number(s):

2018/242442 and 2018/242443

Publication restriction:

Nil

Judgment

TABLE OF CONTENTS

TOPIC PARAGRAPH NO

Sell & Parker Contravenes a Condition of its Development Consent for its Kings Park Metal Waste Recycling Facility [1]

The Statutory Framework Creating the Offences [7]

The Consent [12]

Sell & Parker Receives Waste in Excess of the Limits Imposed by Condition A8 of the Consent [13]

Events Leading Up to the Granting of the Consent and the Imposition of Condition A8 [25]

The Department’s Site Inspection on 20 September 2016 [77]

Events After the 20 September 2016 Site Inspection and Meeting [86]

Lloyd's Independent Audit [92]

Further Site Inspection on 23 March 2017 [102]

Development Control Order [103]

Modifications to the Consent [106]

Approvals Under Condition A8 of the Consent [108]

Section 119 Notices [111]

The Breaches of the Consent [126]

Prosecutor’s Evidence [129]

The Evidence of Ritchie [130]

The Evidence of Bourne [139]

The Evidence of Dingle [150]

The Evidence of Pizzolato [173]

Records of Interview [188]

Richards’s ROI [188]

Luke Parker’s ROI [189]

Defendant’s Evidence [195]

The Evidence of Luke Parker [196]

Operations at the Site [206]

The Emissions Collection System [214]

The 20 September 2016 Site Inspection and Meeting [229]

The Consequences of Lowering Receipts Below 90,000tpa [234]

Lloyd’s Independent Environmental Audit [236]

November 2016 Board Meeting [242]

Sell & Parker’s Commitment to Protecting the Environment [247]

Remorse and Contrition [248]

Luke Parker’s Oral Evidence [250]

Measures to Avoid Re-offending [279]

Francis Bethwaite Evidence [281]

Sentencing Principles [282]

The Purposes of Sentencing [282]

Statutory Matters Required to be Taken Into Account in Sentencing [283]

Objective Seriousness of the Offences [287]

Nature of the Offences [291]

Conclusion Regarding the Nature of the Offences [309]

Sell & Parker’s State of Mind at the Time of the Commission of the Offences [317]

The Application of the Principle in De Simoni [319]

Did Luke Parker's Words Constitute an Offer That Was Accepted by the Department or a Threat? [338]

Sell & Parker’s Belief Formed at the 20 September 2016 Site Inspection Meeting was Neither Genuine Nor Reasonable [346]

Conclusion Regarding Sell & Parker’s State of Mind [368]

The Environmental Harm Occasioned or Likely to be Occasioned by the Commission of the Offences [369]

Maximum Penalty [375]

Reasonable Foreseeability of the Harm Caused or Likely to be Caused to the Environment by the Commission of the Offences [377]

Control Over the Causes of the Commission of the Offences [378]

Practical Measures Which Could Have Been Taken to Prevent or Mitigate the Environmental Harm [379]

Sell & Parker’s Reasons for Committing the Offences [380]

Conclusion on the Objective Seriousness of the Offences [388]

Subjective Circumstances of Sell & Parker [394]

Prior Convictions [395]

Assistance Provided to Authorities [397]

Early Pleas of Guilty [401]

Contrition and Remorse [410]

Likelihood of Reoffending and Prospects of Rehabilitation [419]

Corporate Character [421]

The Offences Could Have Been Prosecuted in the Local Court [425]

General and Specific Deterrence [426]

General Deterrence [427]

Specific Deterrence [438]

Sentencing Corporations [445]

Retribution and Denunciation [448]

Consistency in Sentencing [449]

Publication Order [452]

Financial Means of Sell & Parker [453]

Costs [454]

Totality Principle [456]

Moiety [462]

Appropriate Sentence [463]

Orders [467]

Annexure A

Sell & Parker Contravenes a Condition of its Development Consent for its Kings Park Metal Waste Recycling Facility

1. Sell & Parker Pty Ltd (“S&P”) pleaded guilty to two offences of contravening ss 76A(1)(b) and 125(1) of the Environmental Planning and Assessment Act 1979 (“EPAA”) committed between 26 May and 31 December 2016 (“2016 offence”) and 1 January and 23 October 2017 (“2017 offence”) at S&P’s metal waste recycling facility at Lot 2, DP550522 (23-43 Tattersall Road) and Lot 5, DP7086 (45 Tattersall Road) Kings Park near Blacktown, NSW (“the site”).

2. Each offence concerns the carrying out of development on land otherwise than in accordance with a development consent which had been obtained and was in force, contrary to s 76A(1)(b) of the EPAA. The contraventions related to S&P’s receipt of waste in excess of limits imposed by condition A8 of its development consent, State Significant Development (“SSD”) 5041, granted by the Minister for Planning on 12 November 2015 (“the consent”).

3. The further amended summons filed on 5 June 2019 with respect to the 2016 offence was in the following terms:

The Prosecutor seeks:

1. An order that the Defendant, Sell & Parker Pty Ltd (ACN 000 101 315) of Registered Office 11 Meadow Way, Banksmeadow, in the State of New South Wales, appear before a judge of the Court to answer to the charge that, between 26 May 2016 and 31 December 2016, at 23-43 and 45 Tattersall Road, Kings Park (Lot 2 DP 550522 and Lot 5 DP 7086) in the State of New South Wales, it committed an offence against section 125(1) of the Environmental Planning and Assessment Act 1979 (the Act) in that, it carried out development on land otherwise than in accordance with a development consent which had been obtained and was in force, contrary to section 76A(1)(b) of the Act.

PARTICULARS

Development consent obtained and in force

Development consent SSD 5041 granted by the Minister for Planning dated 12 November 2015 (Development Consent) for increasing the processing capacity of the existing metal recycling facility, including reconfiguration and expansion of the facility into the adjoining site at 23-43 Tattersall Road, Kings Park (the Development).

Conditions A7 and A8 of the Development Consent provide:

A7.   The Applicant shall not receive or process on the site more than 350,000 tonnes per calendar year of waste, subject to Condition A8.

A8.    Despite Condition A7, the Applicant shall not receive or process on the site more than 90,000 tonnes per calendar year of waste (on a weekly pro-rata basis) until:

a)    the Emissions Collection System for the hammer mill has been commissioned in accordance with Condition B20 and approved by the Secretary for operation; and

b)    a Final Occupation Certificate has been issued for the Development.

Land to which the Development Consent applies

23-43 and 45 Tattersall Road, Kings Park (Lot 2 DP 550522 and Lot 5 DP 7086) in the State of New South Wales (the Site).

Environmental planning instrument that provides that specified development may not be carried out except with development consent

The Site is zoned IN1 General Industrial under the Blacktown Local Environmental Plan 2015. No development is permitted without consent in zone IN1 General Industrial.

Development for the purposes of a resource recovery facility is permissible with development consent in zone IN1 General lndustrial. The Development is development for the purposes of a resource recovery facility.

Development carried out at the Site

At all relevant times, the Defendant, by itself, its servants and agents, was carrying out the Development at the Site pursuant to the Development Consent.

Manner of breach of the Development Consent

At all relevant times, the Emissions Collection System for the hammer mill had not been approved by the Secretary for operation and a Final Occupation Certificate had not been issued for the Development.

Contrary to condition A8, the Defendant received more than 90,000 tonnes of waste at the Site between 26 May 2016 and 31 December 2016, namely, not less than 195,386.751 tonnes of waste.

Date on which evidence of the offence first came to the attention of an investigation officer

At an inspection of the Site on 20 September 2016, Mr Luke Parker, Chief Executive Officer of the Defendant, disclosed to Chase Dingle that the Defendant was "exceeding the 90,000 tonne limit". Mr Dingle was an investigation officer as at 20 September 2016.

On 27 April 2017, in response to a notice issued to the Defendant by Mr Dingle pursuant to section 119J of the Act, Mr Parker sent an email to Mr Dingle detailing the amount, in tonnes, of waste received and processed on the Site during the 2016 calendar year demonstrating that the amount received was greater than 90,000 tonnes per annum.

2.    An order that the Defendant be dealt with according to law for the commission of the offence.

3. Such orders under Part 8.3 of the Protection of the Environment Operations Act 1997 as the Court sees fit to make.

4.    An order that the Defendant pay the Prosecutor's costs.

4. The further amended summons with respect to the 2017 offence was filed on 3 May 2019 and charged that:

The Prosecutor seeks:

1. An order that the Defendant, Sell & Parker Pty Ltd (ACN 000 101 315) of Registered Office 11 Meadow Way, Banksmeadow, in the State of New South Wales, appear before a judge of the Court to answer to the charge that, between 1 January 2017 and 23 October 2017, at 23-43 and 45 Tattersall Road, Kings Park (Lot 2 DP 550522 and Lot 5 DP 7086) in the State of New South Wales, it committed an offence against section 125(1) of the Environmental Planning and Assessment Act 1979 (the Act) in that, it carried out development on land otherwise than in accordance with a development consent which had been obtained and was in force, contrary to section 76A(1)(b) of the Act.

PARTICULARS

Development consent obtained and in force

Development consent SSD 5041 granted by the Minister for Planning dated 12 November 2015 (Development Consent) for increasing the processing capacity of the existing metal recycling facility, including reconfiguration and expansion of the facility into the adjoining site at 23-43 Tattersall Road, Kings Park (the Development).

Conditions A7 and A8 of the Development Consent provide:

A7.   The Applicant shall not receive or process on the site more than 350,000 tonnes per calendar year of waste, subject to Condition A8.

A8.    Despite Condition A7, the Applicant shall not receive or process on the site more than 90,000 tonnes per calendar year of waste (on a weekly pro-rata basis) until:

a)    the Emissions Collection System for the hammer mill has been commissioned in accordance with Condition B20 and approved by the Secretary for operation; and

b)    a Final Occupation Certificate has been issued for the Development.

Land to which the Development Consent applies

23-43 and 45 Tattersall Road, Kings Park (Lot 2 DP 550522 and Lot 5 DP 7086) in the State of New South Wales (the Site).

Environmental planning instrument that provides that specified development may not be carried out except with development consent

The Site is zoned IN1 General Industrial under the Blacktown Local Environmental Plan 2015. No development is permitted without consent in zone IN1 General Industrial.

Development for the purposes of a resource recovery facility is permissible with development consent in zone IN1 General Industrial. The Development is development for the purposes of a resource recovery facility.

Development carried out at the Site

At all relevant times, the Defendant, by itself, its servants and agents, was carrying out the Development at the Site pursuant to the Development Consent.

Manner of breach of the Development Consent

At all relevant times, the Emissions Collection System for the hammer mill had not been approved by the Secretary for operation and a Final Occupation Certificate had not been issued for the Development.

Contrary to condition A8, the Defendant received more than 90,000 tonnes of waste at the Site between 1 January 2017 and 23 October 2017, namely, not less than 268,645.476 tonnes of waste.

2.    An order that the Defendant be dealt with according to law for the commission of the offence.

3. Such orders under Part 8.3 of the Protection of the Environment Operations Act 1997 as the Court sees fit to make.

4.    An order that the Defendant pay the Prosecutor's costs.

5. It should be noted from the outset that the overwhelming majority of the sentence hearing was occupied by a factual dispute between the parties regarding statements made at a meeting that occurred at a site inspection on 20 September 2016 and the events that followed (“20 September 2016 site inspection meeting”) relating to:

1. whether a Department of Planning and Environment (“the Department”) official present at that meeting said words to the effect of “No. We don’t want you to do that” or “we don’t want you to do that” (“the Departmental response”) in response to a statement made by the Chief Executive Officer (“CEO”) of S&P, Luke Parker, that if the Department and the Environment Protection Authority (“EPA”) wanted S&P to comply with condition A8 of the consent it would do so but “lay off” 50 staff in the process, and moreover, that this would have a detrimental impact on the steel industry in New South Wales (“NSW”); and

2. whether the Departmental response constituted a statement that the Department was exercising its discretion not to prosecute S&P for the 2016 and 2017 offences.

6. The contest was relevant to the state of mind of the defendant at the time of the commission of the offences and its objective culpability for their commission. It resulted in a protracted sentence hearing of eight days, the tender of additional documentation, the need for extensive cross-examination of multiple witnesses and the provision of lengthy oral and written submissions by both parties.

The Statutory Framework Creating the Offences

7. Section 76A(1) of the EPAA relevantly provides:

76A    Development that needs consent

(1)      General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:

(a)    such a consent has been obtained and is in force, and

(b)    the development is carried out in accordance with the consent and the instrument.

8. Section 125(1) of the EPAA is in the following terms:

125     Offences against this Act and the regulations

(1)       Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Secretary, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act.

9. Section 125B of the EPAA states:

125B  Maximum penalties for offences against Act: Tier 2

(1) This section applies to an offence against this Act under section 125 (1), other than an offence to which section 125A applies or an offence for which a tier 3 maximum penalty applies.

(2)      A person who is guilty of an offence to which this section applies is liable to a tier 2 maximum penalty, being a penalty not exceeding:

(a)    in the case of a corporation:

(i)    $2 million, and

(ii)    for a continuing offence—a further $20,000 for each day the offence continues…

10. The site is located within the Blacktown City Local Government Area and at all relevant times was subject to the Blacktown Local Environmental Plan 2015 (“Blacktown LEP”).

11. Located on the site is a “resource recovery facility” within the meaning of the Blacktown LEP. The site is within an industrial land use zone described as “IN1 General Industrial” in cl 2.1 of the Blacktown LEP. The development of a resource recovery facility may only be carried out with consent on IN1 General Industrial land under the Blacktown LEP.

The Consent

12. At all material times, the consent included the following relevant conditions (emphasis added):

TERMS OF CONSENT

…

A4.    The Applicant shall comply with any reasonable requirement/s of the Secretary arising from the Department’s assessment of:

a)   any reports, plans, strategies, programs or correspondence that are submitted in accordance with this consent; and

b)   the implementation of any actions or measures contained in these reports, plans, strategies, programs or correspondence.

STATUTORY REQUIREMENTS

A5.   The Applicant shall ensure that all licences, permits, and approvals/consents are obtained as required by law and maintained as required throughout the life of the Development. No condition of this consent removes the obligation for the Applicant to obtain, renew or comply with such licences, permits, or approvals/consents.

…

LIMITS OF CONSENT

A7.   The Applicant shall not receive or process on the site more than 350,000 tonnes per calendar year of waste, subject to Condition A8.

A8.   Despite Condition A7, the Applicant shall not receive or process on the site more than 90,000 tonnes per calendar year of waste (on a weekly pro-rata basis) until:

a)    the Emissions Collection System for the hammer mill has been commissioned in accordance with Condition B20 and approved by the Secretary for operation; and

b)    a Final Occupation Certificate has been issued for the Development.

A9.    In deciding whether to grant approval to operate the Emissions Collection System for the hammer mill in accordance with Condition A8, the Secretary shall take into account the Commissioning Report submitted in accordance with Condition B21.

A10.    The Applicant must record the amount of waste (in tonnes) received at the site on a daily basis.

…

AIR QUALITY

Odour

B15.   The Applicant shall ensure the Development does not cause or permit the emission of any offensive odour (as defined in the POEO Act).

Emissions limits

B16.   The Applicant shall ensure that emissions from the Development do not exceed the emission limits specified in the EPL.

Air Quality Management Plan

B17.    Prior to the commencement of construction of the Development, the Applicant shall prepare an Air Quality Management Plan to the satisfaction of the Secretary. The plan must:

a)   be prepared by a suitably qualified and experienced person(s) in consultation with the EPA;

b)   describe the measures that would be implemented to ensure:

i.   all reasonable and feasible measures are employed to minimise air emissions;

ii.   compliance with the relevant conditions of this consent;

iii.   contingency measures are deployed to minimise impacts should adverse air emissions occur or appear likely to occur;

c)   include well defined triggers for the deployment of construction and operational air quality measures;

d)   include well defined triggers for ceasing or partially ceasing operations on site during adverse air quality conditions;

e)   include an Air Quality Monitoring System to evaluate the performance of the Development commensurate with the system proposed in the Air Quality Assessment prepared by ERM dated September 2015;

f)   include details of the location, frequency and duration of monitoring; and

g)   include a protocol to determine the occurrence of any exceedance of the criteria in the EPL should an exceedance occur.

B18.    The Applicant shall carry out the Development in accordance with the Air Quality Management Plan approved by the Secretary (as revised and approved by the Secretary from time to time), unless otherwise agreed by the Secretary.

Air emissions mitigation

B19.   The Applicant shall:

a)   operate the Development so that air emissions are minimised during all meteorological conditions; and

b)   implement best management practice, including all reasonable and feasible air and odour emissions mitigation measures to minimise emissions from the Development, including but not limited to:

(i)   installation of an Emissions Collection System servicing the hammer mill that is capable of achieving emission control performance equivalent to the system described in the Air Quality Assessment prepared by ERM dated September 2015;

(ii)   operating one oxy-acetylene torch at a time;

(iii)   operating the oxy-acetylene torch only between the hours of 9 am and 3 pm;

(iv)   cutting any metal beam that is up to 100 millimetres thick with the shear, where possible;

(v)   enclosure of all conveyors and conveyor transfer points;

(vi)   dust suppression through the use of water sprays/misters;

(vii)   sealing of on-site surfaces and regularly maintaining them to prevent dust re-entrainment from vehicle movements and other equipment use; and

(viii)   installation of appropriate dust screens at the property boundaries.

Emissions Collection System Commissioning

B20.   The Applicant shall commission the Emissions Collection System for the hammer mill. The Commissioning must:

a)   be undertaken by a suitably qualified and experienced person(s) in consultation with the EPA;

b)   test the performance of the system against the performance parameters set out in the Air Quality Assessment prepared by ERM dated September 2015; and

c)   identify and implement any changes to the system that may be necessary to achieve environmental air quality performance commensurate with that set out in the Air Quality Assessment prepared by ERM dated September 2015.

Commissioning Report

B21.   The Applicant shall submit to the Secretary a Commissioning Report detailing the outcomes of the commissioning of the Emissions Collection System for the hammer mill.

…

INDEPENDENT ENVIRONMENTAL AUDIT

C9.   Within 1 year of the date of this consent, and every 3 years thereafter, unless the Secretary directs otherwise, the Applicant shall commission and pay the full cost of an Independent Environmental Audit of the Development. This audit must:

a)   be conducted by a suitably qualified, experienced and independent team of experts whose appointment has been endorsed by the Secretary;

b)   led by a suitably qualified auditor, and include experts in fields specified by the Secretary;

c)   include consultation with the relevant agencies;

d)   assess the environmental performance of the Development and assess whether it is complying with the requirements in this consent, and any other relevant approvals and relevant EPL/s (including any assessment, plan or program required under the approvals);

e)   review the adequacy of any approved strategy, plan or program required under the abovementioned consents; and

f)   recommend measures or actions to improve the environmental performance of the Development, and/or any strategy, plan or program required under the consents.

C10.   Within three months of commissioning this audit, or as otherwise agreed by the Secretary, the Applicant shall submit a copy of the audit report to the Secretary, together with its response to any recommendations contained in the audit report.

Annual review

C11.   Within 1 year of the date of this consent, and every year thereafter, the Applicant shall review the environmental performance of the Development. This review must:

a)   describe the Development that was carried out in the previous calendar year, and the Development that is proposed to be carried out over the next year;

b)   include a comprehensive review of the monitoring results and complaints records of the Development over the previous calendar year, which includes a comparison of the results against the:

(i)   the relevant statutory requirements, limits or performance measures/criteria;

(ii)   requirements of any plan or program required under this consent;   

(iii)   the monitoring results of previous years; and

(iv)   the relevant predictions in the EIS;

c)   identify any non-compliance over the last year, and describe what actions were (or are being) taken to ensure compliance;

d)   identify any trends in the monitoring data over the life of the Development;

e)   identify any discrepancies between the predicted and actual impacts of the Development, and analyse the potential cause of any significant discrepancies; and

f)   describe what measures will be implemented over the next year to improve the environmental performance of the Development.

Sell & Parker Receives Waste in Excess of the Limits Imposed by Condition A8 of the Consent

13. S&P is a corporation with its registered office at 11 Meadow Way, Banksmeadow. Luke Parker is its CEO and managing director. S&P owns and operates 11 businesses, including metal recycling facilities at Blacktown, Nowra, Ingleburn, Banksmeadow, Newcastle and Coffs Harbour.

14. The Blacktown metal recycling facility is the site where the two offences were committed. S&P holds Environmental Protection Licence 11555 (“EPL”) in relation to its activities at the site.

15. S&P processes much of the scrap metal it receives at its metal recycling facilities, including at the site, and then sells it to end users.

16. The Australian metal recycling industry is dominated by two large firms, with S&P being smaller than those firms in size.

17. S&P operates a metal shredder at the site (known as a “hammer mill”) which, at the time of the commission of the offences, was one of only four shredders in the State. A metal shredder typically has capacity to process up to 500,000t per annum (“tpa”) of light gauge metals. Light gauge metal includes any metallic feedstock suitable for processing though the shredder, such as cars and whitegoods. A picture of a shredder is provided below:

18. The shredder has a large electric motor which turns a hammer mill that pulverises the light gauge feedstock into a marketable commodity, as depicted in the image below:

19. S&P’s hammer mill has the following features (which are not depicted in the above image):

1. an emissions collection system (“ECS”);

2. a projectile cover;

3. an acoustic shield; and

4. a pre-shredder.

20. In its metal recycling businesses S&P buys and sells ferrous (that is, iron and other heavy metals) and non-ferrous (including aluminium, copper, brass and bronze) scrap metals in varying quantities. Shred is purchased by operators of steel mills and electric arc furnaces to make new steel.

21. The major characteristics of the ferrous metal recycling stream are:

1. high-volume but low value metal scrap with high iron content;

2. light gauge ferrous materials processed through the hammer mill, such as vehicle bodies;

3. heavy metal materials that are too big to process through a shredder and are processed by shears which cut larger pieces of metal into smaller sizes, such as structural steel from demolition and old railway lines; and

4. over sized materials which need to be manually cut down using oxy-acetylene torches, such as large items of plant.

22. The major characteristics of the non-ferrous metal recycling stream are:

1. low volume but high value metal scrap with low iron content, such as brass, copper, aluminium, used lead acid batteries, radiators and catalytic converters; and

2. a high degree of manual handling and material separation when received by the scrap supplier with scales used to measure the weight of each non-ferrous metal.

23. Shredder floc (a mixture of plastics, glass, foam, rubber, dirt and other non-metal materials) is the waste material generated by metal shredders. It is typically disposed of in landfill, attracting a levy per tonne.

24. The potential environmental impacts associated with metal recycling facilities that have a shredder include dust emissions, other airborne emissions, noise, and vibrations.

Events Leading Up to the Granting of the Consent and the Imposition of Condition A8

25. Having regard to the chronology below, there can be no doubt that at all times leading up to the granting of the consent that imposed conditions A7 and A8, among others, in their final form, that the regulators were concerned about the potential adverse environmental impacts associated with metal recycling at the site (especially with respect to air quality), including the proposed increase of this activity.

26. On 25 November 2013 BBC Consulting Planners (“BBC”) wrote to the Department on behalf of S&P in these terms:

We write on behalf of Sell and Parker Pty Ltd, in relation to their intention to lodge a development application under Section 78A of the Environmental Planning and Assessment Act 1979 (“EP&A Act”) with the NSW Minister for Planning. The development application will seek the Minister’s approval to expand the facility and increase the capacity of the existing waste metal recovery, processing and recycling facility at 45 Tattersall Road, Kings Park, from 90,000 tonnes a year to 350,000 tonnes a year.

The Director-General’s environmental assessment requirements (DGRs) for the preparation of an environmental impact statement (EIS) for the above development were issued 22 December 2011 and were issued based on information provided at that time. This letter requests any modifications to the DGRs based on changes to the proposed development outlined below.

27. On 23 December 2013 the Department provided the Director-General’s Requirements (“DGRs”) to BBC for the preparation of an Environmental Impact Statement (“EIS”) for the proposed expansion of the site. It identified as “key issues”: waste management, noise, vibration, air quality, and odour. The letter relevantly stated that:

The EIS must address the following specific matters:

…

—   a quantitative assessment of the potential air quality and odour impacts of the development on surrounding landowners;

—   a description of how the handling, transporting, production and storage of waste materials would be managed to control dust generation; and

—   details of all proposed mitigation, management and monitoring measures.

28. On 17 March 2014 S&P lodged a SSD development application seeking consent for an increase in the handling capacity of the existing waste metal recovery, processing and recycling facility at 45 Tattersall Road, Kings Park to 350,000tpa of waste (“SSD application”). It was proposed that the expansion would incorporate the adjacent site at 23-43 Tattersall Road, Kings Park. The development constituted a SSD because it was seeking to handle more than 100,000tpa of waste. Luke Parker and Morgan Parker signed the landowner’s consent section of the SSD application.

29. By letter dated 26 March 2014 the Department sought comment from the EPA in relation to S&P's draft EIS, submitted as part of its application for development consent.

30. On 22 April 2014 the EPA’s Unit Head, Waste Compliance, Trevor Wilson, sent the Department a letter providing comments regarding S&P’s draft EIS. The letter included comments regarding S&P’s hammer mill operation on the site and odour and dust assessments required by the draft EIS. The letter concluded that:

We are concerned about the numerous and regular pollution line complaints we receive in relation smoke, odour and dust being emitted from the Premises. The consent conditions negotiated in the Land and Environment Court no longer reflect the way operations are currently conducted on the Premises. The increase in production from 90,000tpa to a possible 360,000tpa is likely to increase pollutants generated by the activity.

31. The Department wrote to S&P on 30 May 2014 advising that a revised EIS was required:

…the Department is of the view that the key issues which need to be adequately addressed and/or require the provision of additional information or clarification are the potential air quality, noise and vibration, soil and water and contaminated land impacts of the proposed development.

32. During the course of consultations between the EPA and S&P, the EPA was provided with an emission testing report prepared by EML Air Pty Ltd (“EML”) dated 18 June 2014, together with submissions in support of S&P’s SSD application prepared by Environmental Resources Management Australia Pty Ltd (“ERM”).

33. ERM, on behalf of S&P, provided a response on 31 July 2014. ERM also provided an Air Quality Assessment Report dated July 2014. That assessment concluded that:

The air dispersion modelling results indicated that:

…

•   the maximum predicted 24-hour average PM₁₀ concentration together with the maximum background concentration results in levels that exceed the assessment criteria at the sensitive receptors due to the elevated background ambient air quality concentration in this area;

34. On 28 September 2014 S&P provided the EPA with an emissions testing report by EML and submissions prepared by ERM.

35. On 7 January 2015 ERM provided a response to the Department in respect of submissions that had been received regarding the SSD application. ERM responded to the EPA’s concerns regarding:

1. noise and vibration impacts, which the EPA described as excessive and causing offsite impacts. ERM noted that a revised assessment of the noise and vibration impacts established that the vibration levels would comply with EPA guidelines;

2. air quality impacts caused by the hammer mill. The EPA required S&P to provide clarification that the characterisation and emission rates used in the modelling for the wet scrubber were representative of the hammer mill. ERM stated that this had been addressed by the reclassification and relocation of the wet scrubber, including the relocation of the release point; and

3. the potential for pollutants to be emitted from the hammer mill during the shredding process (other than pollutants from the oxy-cutting process). ERM said that the updated EIS indicated that concentrations of toxic air pollutants associated with the hammer mill were below their relevant assessment criteria at all sensitive receptors.

36. The letter from ERM attached an Air Quality Assessment Report dated December 2014 (“2014 Air Quality Assessment”) that relevantly concluded that:

The air dispersion modelling results indicated that:

…

•   the maximum predicted 24-hour average PM₁₀ concentration together with the maximum measured background concentration results in levels that exceed the assessment criteria at ten of the sensitive receptors due to the elevated background ambient air quality concentration in this area;

…

•   the maximum predicted 1-hour average NO₂ concentration together with the maximum measured background concentration results in levels that exceed the assessment criteria at nine of the sensitive receptors;

37. The 2014 Air Quality Assessment also noted elevated iron oxide fumes and manganese concentrations in excess of the assessment criteria at nine site receptors.

38. On 22 January 2015 a further response by ERM in relation to the SSD application was provided to the Department stating that:

It is Sell and Parker’s intention to comply with all conditions of consent, notwithstanding, any development consent issued will be strictly regulated by the EPA under an EPL, as well as being enforceable by either DP&I and Blacktown City Council.

…

2.3 AIR QUALITY

…The concentration of toxic air pollutants at sensitive receptor locations for both the oxy-cutting and hammermill operation were generally below the relevant assessment criteria at all sensitive receptor locations.

…

Odour concentrations at sensitive receptors were generally modelled below the assessment criterion with the exception of two receptors in the industrial estate.

…

While it is acknowledged that the air quality model reported concentrations of some pollutants (e.g. iron oxide fumes and copper and manganese compounds) above the assessment criterion outlined in the Approved Methods at some industrial area receptors, the exceedances were below the relevant criterion outlined in the Safe Work Australia Guidelines. Given this, it is considered that the emissions from the facility will not impact on the health of workers within the industrial area, and are located a sufficient distance from residential receivers (i.e. approximately 500m) not to cause any exceedances to the EPA Approved Methods.

39. The Department was forwarded a letter from ERM on 24 February 2015, in which ERM responded to matters raised by the EPA with respect to emissions from the hammer mill consequent upon the shredding process.

40. On 20 October 2014 the EPA’s then Acting Unit Head, Waste Compliance, Christy Groves, wrote to the Department stating that the EPA was unable to grant General Terms of Approval (“GTAs”) in relation to the SSD application because the EIS that had been publicly exhibited did not include all of the information required by the EPA.

41. Subsequently, on 16 February 2015 the EPA’s then Unit Head, Waste Compliance, Jacqueline Ingham, wrote to the Department advising that the EPA was unable to grant GTAs in relation to the SSD application until additional information that had been sought in the 26 March 2014 letter from the Department to the EPA was provided and assessed:

On 22 April 2014, the EPA provided comments to DP&E requiring that further information be included in the final Environmental Impact Assessment (EIS) regarding potential air, noise and odour issues together with an assessment of the hammermill. This information was requested because of the large number of complaints the EPA received about the facility regarding dust, odour and smoke from the existing operation.

EPA held a meeting to discuss this and other air quality issues with the applicant on 15 September 2014…

However, the EIS placed on public exhibition on 27 August 2014 did not include all additional information required by the EPA in relation to potential air, noise and odour impacts.

…

The EPA has reviewed the response and considers it inadequate. The response does not include all additional information required by the EPA in relation to potential air and stormwater impacts. The EPA is therefore unable to grant GTAs until this additional information is provided and assessed.

42. On 22 April 2015 the EPA’s Senior Manager, Waste Compliance, Chris McElwain, wrote to the Department, referring to its 26 March 2014 letter and to air quality modelling data that the EPA anticipated receiving. The letter indicated that the EPA would provide a further response to the Department following the EPA’s assessment of the data.

43. That same day, the EPA sent the following letter to the Department, which was subsequently provided to Mecone Pty Ltd (“Mecone”), advisors acting for S&P ("the 22 April 2015 letter"):

Summary of the EPA position

The EPA is of the clear position that the hammermill at the Premises is currently not operating in an environmentally satisfactory manner and improvements are required to prevent ongoing pollution incidents that are occurring at the current scale of processing. As a result, for the reasons set out below and in the attachments, the EPA cannot support the proposed increase in processing unless and until there is a clear, timely and legally enforceable proposal to address these environmental impacts.

The proposed development will increase the amount of material being processed per annum by 389%, with an increased rate of processing and an increase of hours of operation, however, there are no improvements to the air polluting process, being primarily the hammermill and the oxy-cutting, have been proposed.

Further, Sell & Parker have advised the EPA that the proposed development will breach air quality guidelines, and this means that the proposal will have impacts on the local community.

Sell & Parker have outlined a wide range of toxic water contaminants that may enter the stormwater system from the site activities but have failed to adequately characterise them or describe how the impacted water will be treated to mitigate the risk of those contaminants.

…

Given the long history of poor environmental compliance on the issues referred to above, and the failure to completely address the pollution issues associated with the hammermill, the EPA cannot support a proposal that will clearly impact the local environment and community unless and until these issues are addressed in a clear, timely and enforceable way.

44. That correspondence identified inadequacies in S&P’s attempts to address the air and water quality impacts of the SSD application from the EPA’s perspective:

The EPA considers it unacceptable that, despite the above mentioned written comments and meeting with the applicant to explain the EPAs requirements, the information supplied by Sell and Parker in about the air and water quality impacts of the proposal, has been inadequate. Hence, the EPA has been able to provide General Terms of Approval for the development.

…

The EPA expressed its opinion that the purpose of that condition was to ensure that the activity would only take place after the expiration of the 20 year time limit by taking advantage of any improved technologies as to prevent and mitigate any impacts on neighbours from hammermilling.

…

Current operations

…

Since January 2013 the EPA has received 99 complaints about polluted water, odour, smoke and dust emissions from the facility, with a large majority of these from adjacent industrial premises.

During this period the EPA has conducted 33 inspections of the Premises and the surrounding environment.

In June 2013 the EPA issued Sell & Parker a Draft Pollution Reduction Program to address the ongoing environmental issues.

Sell & Parker advised the EPA that the air pollution issues would be addressed in the proposed development (being the current matter the subject of the application) and, on that basis, the EPA did not finalise the Pollution Reduction Program.

…

Air Quality Related Issues

…

The existing facility has an ongoing history of complaints regarding odour, smoke and dust emissions, primarily from adjacent industrial receptors.

On 4 February 2015, Sell & Parker filed an appeal for Deemed Refusal of the development against Department of Planning & Environment…

…

Recommendation

Based on existing information including the Air Quality Assessment and operational experience of the existing facility, there is significant risk of adverse air quality impacts unless the proposal is re-designed to include additional adequate air quality controls and management.

45. Attachment 1 to that document noted that:

The operational history of the site has shown where identical activities are undertaken at a lesser scale, there are significant air quality impacts. The assessment results for the proposed expansion have also indicated that there is a significant risk of:

•   Offensive odour impacts offsite;

•   Adverse impacts due to particulate emissions; and

•   Adverse impacts due to toxic air emissions.

46. It also noted that while mitigation measures were available to S&P, these measures had not been properly considered in the project design to date.

47. The 22 April 2015 letter is significant insofar as it makes it abundantly clear that the EPA was not satisfied that the hammer mill was operating in an environmentally appropriate manner and that improvements were required to prevent ongoing pollution incidents that were occurring at the current scale of processing. This was especially important given the almost four-fold proposed increase in development capacity by S&P.

48. On 30 June 2015 Mecone provided to the Department a letter attaching revised proposed environmental mitigation measures in a report entitled Waste Metal Recovery, Processing and Recycling Facility Expansion – 45 and 23-43 Tattersall Road, Kings Park, Blacktown – Air Quality Assessment – Sell and Parker Pty Ltd, prepared by ERM and dated 19 June 2015 (“2015 ERM Report”), and another report entitled Waste Metal Recovery, Processing and Recycling Facility Expansion – 45 and 23-43 Tattersall Road, Kings Park, Blacktown – Air Quality Health Risk Assessment – Sell & Parker Pty Ltd, also prepared by ERM and dated June 2015 (“2015 Health Risk Assessment”).

49. The covering letter described the measures S&P had implemented on site to address the EPA’s concerns. These included:

1. enclosing all conveyors thereby preventing dust emissions from these sources;

2. proposing to seal the site to eliminate a large source of particulate matter emissions and to reduce the emission of particulate matter;

3. amending the site layout to no longer require trucks to enter the site twice;

4. installing a new ECS above the hammer mill exhaust vent to collect exhaust gases which would be passed through a cyclone and a wet scrubber to reduce particulate content from the exhaust air system and to reduce odorous emissions. After gases have passed through the cyclone and wet scrubber they would be ducted to a central point at the site and emitted by a 15 m high stack to increase vertical velocity and improve dispersion of emissions into the atmosphere;

5. upgrading the shearing equipment and technology to reduce the number of oxy-cutters and their hours of operation;

6. ensuring oxy-cutting only occurs under wet conditions in order to reduce metal fumes and NO_X emissions; and

7. the carrying out of additional equipment upgrades.

50. The 2015 ERM Report set out the PM₁₀ annual mean. It noted that 2009 included an extreme dust event and that, therefore, for years where the highest modelled year was 2009, total concentrations in the future for a year with similar meteorological conditions to those in 2009 would be lower.

51. Although not required pursuant to the DGRs, S&P also commissioned the 2015 Health Risk Assessment which concluded that site related emissions were unlikely to result in unacceptable health risks.

52. On 3 July 2015 Ashley Cheong sent an email to Alex Bourne (an EPA officer) requesting that the EPA review and provide comments with respect to further submissions S&P had made on 30 June 2015 regarding its SSD application. Cheong’s email included a link to the Department’s Major Project Assessments website from which Bourne accessed a letter dated 30 June 2015 from Mecone identifying the following documents:

1. the 2015 ERM Report; and

2. the 2015 Health Risk Assessment.

53. The EPA provided comments to the Department on the proposed ECS on 28 July 2015, noting that it was “generally pleased with the new direction in environmental compliance”, but that it required further clarification and updates. Attachment 2 to those comments identified a number of issues that the EPA recommended that S&P address, including the development of an Air Quality Management Plan, with details of the mitigation measures to be implemented on site, including a proposed real time dust management system. On 29 July 2015 the Department forwarded those comments to S&P.

54. S&P sent a letter to the Department enclosing its response to the EPA’s latest comments on 13 August 2015. The letter raised concerns regarding possible delay in the feedback process because the EPA Senior Operations Officer with oversight of the matter would be on leave for a month. S&P requested that the Department consider “transferring [the matters raised by the EPA]…from the consent format to the licensing format in order to assist in the assessment of a SSD that was lodged in March 2014 (18 months ago)”.

55. On 3 September 2015 S&P provided a revised ERM assessment (“2015 ERM Assessment”) detailing how the ECS would operate and setting out the parameters for the stack.

56. On 23 September 2015 the EPA provided the Department with recommended GTAs for the SSD application and informed the Department that it was able to issue a licence for the proposal, subject to conditions. The EPA noted that post-commissioning proof of performance of the air quality control infrastructure had to be completed by S&P prior to any increase in waste receipt or processing at the site. The GTAs relevantly provided that:

L5.    Waste

L5.2  A maximum of 90,000 tonnes of Scrap Metal is permitted to be received at the premises per annum on a weekly pro-rata basis until the Hammer Mill Emission Collection System has successfully passed post commissioning proof of performance trials to the satisfaction of the EPA.

…

L5.4  Once the Hammer Mill Emission Collection System is fully operational and has successfully passed post commissioning proof of performance trials to the satisfaction of the EPA, a maximum of 350,000 tonnes of Scrap Metal is permitted to be processed at the premises per annum.

57. The Department forwarded the proposed conditions of consent to S&P on 25 September 2015, and responded to questions previously raised by Catherine Maddox, Head of Planning and Business Development at S&P.

58. That same day S&P provided its initial comments regarding the GTAs and the Department provided S&P with draft conditions of consent.

59. On 12 October 2015 S&P emailed the Department proposing substantive amendments to draft conditions A7, A8 and A9 of the consent.

60. The Department published its Secretary’s Assessment Report and the draft conditions of consent on its website on 4 November 2015 (for a period of seven days).

61. On 10 November 2015 S&P sent the Department a letter providing a submission to the Secretary’s Assessment Report and the draft conditions of consent. The letter referenced S&P’s 12 October 2015 email response and draft condition A8. S&P raised the concern that, as drafted, condition A8 would not allow the site to continue current operations because it did not allow S&P to receive or process more than 90,000tpa of waste until it was granted a final occupation certificate (“OC”) with respect to the site.

62. On 12 November 2015 the consent was granted. The accompanying Secretary’s Assessment Report relevantly stated that:

Based on all information provided, the Department has undertaken a thorough assessment of the proposal in accordance with the EP&A Act and concludes that:

•   the facility would meet relevant air, noise and vibration criteria at sensitive receivers;

•   traffic generated by the facility can be satisfactorily accommodated on the local and regional road network without any significant impact on safety or level of service;

•   the expanded facility would provide for improved environmental and operational outcomes, including reduced air and odour emissions, improved on-site stormwater management and water quality impacts; and

•   the facility would provide a range of environmental and economic benefits for the region, through resource recovery and the provision of long term operational jobs.

The proposal is consistent with the NSW Government’s direction in achieving the targets of NSW 2021 and the Waste Avoidance and Resource Recovery Strategy. In particular, the proposed expansion of the facility would enable the Applicant to better respond to increasing demands and provide improved safety, environmental, processing and traffic outcomes, while assisting in diverting scrap recyclable metal from landfill.

…

The proposed development is important to ensure that the Sydney Metropolitan Area’s metal waste recycling needs are met, and, in this regard, it is noted that the subject facility is only one of two major scrap metal recycling facilities in the Sydney Metropolitan Area.

63. Ektimo Pty Ltd (“Ektimo”) prepared an Emission Testing Report in respect of the ECS (pursuant to the consent) dated 23 February 2016. In addition to the testing of the hammer mill, that Report recorded that:

Hammer Mill feed comprised 30% car content

Non-compliant sampling plane; the testing precision will be reduced

…

(1) The sampling plane is deemed to be non-ideal or non-compliant…

Comments

Hammer Mill feed comprised 17% car content.

Hammer Mill feed blacked and operating on idle from 1055 to 1120. Test suspended for that time.

Non-compliant sampling plane; the testing precision will be reduced

The discharge is assumed to be composed of dry air and moisture.

64. Air Quality Management Plans were submitted to the Department by S&P on 8 April and 20 October 2016. On 10 August and 4 November 2016, respectively, the Department responded to those plans.

65. On 14 April 2016 the Department’s Senior Planner, Industry Assessments, Kate Masters, emailed Lesley Corkhill, the EPA’s then Unit Head, Waste Compliance, requesting that the EPA review and provide comments with respect to S&P’s Air Quality Management Plan dated 8 April 2016 and Noise Management Plan dated 9 April 2016.

66. Corkhill responded to Masters’ email on 22 April 2016, providing comments on S&P’s plans.

67. On 26 May 2016 S&P surrendered existing development approvals applicable to the site, namely, DA-96-305 dated 27 November 1996 (granted in relation to the establishment of the original metal recycling facility at 45 Tattersall Road) and DA 10204-2000 dated 11 May 2001 (granted in relation to the establishment of the hammer mill and associated components at the same location).

68. In 2016 S&P installed the ECS on the site.

69. On 1 September 2016 S&P provided to the Department a Commissioning Air Quality Assessment by ERM dated August 2016 in relation to the ECS (“2016 Commissioning Report”) which included a comparison of stack parameters between those used in the EIS modelling and those as built and measured. There were discrepancies between the two sets of parameters. A comparison of emission concentrations used in the EIS modelling and as built and measured, revealed that while PM₁₀, PM_2.5 and zinc were measured at higher emission concentrations than previously modelled, they were still within the overall total suspended particulate limit.

70. The 2016 Commissioning Report went on to note that:

3.1 BUILDING DOWNWASH

The hammermill stack has been built to a height of 15 m. The current position of the stack is located adjacent to the hammermill as a temporary measure whilst the remainder of the site re-development takes place. Towards the end of the site re-development, the stack will be moved to the centre of the site as originally planned. Atmospheric dispersion modelling has been undertaken using the temporary position of the stack, adjacent to the hammermill. As this location is closer to the site boundary than the ultimate site design, this represents a worst-case location for the stack.

71. The Report concluded that:

6    CONCLUSION

An air quality assessment has been undertaken following an expansion and increase in the approved handling capacity of Sell and Parker’s existing waste metal recovery, processing and recycling facility at Blacktown, New South Wales. The expansion of the Site included the installation of a waste gas treatment system for the hammermill. Testing of the waste gas treatment system stack determined that in comparison to the atmospheric dispersion modelling undertaken as part of the EIS:

•   the stack was positioned in its temporary location adjacent to the hammermill;

•   emissions parameters of the stack were different; and

•   emission concentrations of compounds emitted form the stack were different.

…

The air dispersion modelling results indicated that:

…

•   the maximum predicted 24-hour average PM10 concentration together with the maximum measured background concentration (level 1 assessment) results in levels that exceed the assessment criteria at ten of the modelled sensitive receptors. In the case of eight of those receptors this is due to maximum background value substantially exceeding the assessment criterion…

The additional exceedances of the PM10 24 hour standard are minor… Given that additional exceedances occur up to 3 days out of five years, the frequency of these events is also very small. Sell & Parker will install an ambient air quality monitoring system as part of their site environment management plan by 30 September 2016 in accordance with the Environmental Protection Licence. The management plan requires that where measured the ambient dust measurements indicate exceedance of the criterion, operations will reduce or cease. The monitoring data will be provided on the Sell & Parker website and directly to the EPA on request.

72. On 13 October 2016 the EPA emailed Mazz Appleton, from the Department, regarding the 2016 Commissioning Report in the following relevant terms:

The Assessment report shows that the construction of the Emissions Collection System (ECS) has not yet been constructed to the DP&E approved design criteria. Rather has been installed as an interim measure while the reminder of the site is being redeveloped. It appears that the interim ECS as built is different to what was approved by DP&E…

While there is construction QA/QC value in assessing the interim ECS, the EPA is of the opinion that the Commissioning Assessment provided is premature and shouldn’t be used to validate the performance of the final ECS, which has not yet been built accordance to design specifications.

As such the EPA considers the Assessment inadequate for the purposes of meeting the requirement of consent condition B21 and recommends DP&E require Sell & Parker to conduct and submit a Commissioning Report following the completion of construction of the final ECS.

The EPA acknowledges the levels of air emissions meet the concentration limits in the Environment Protection Licence for the discharge point. However, the Total Solid Partial result of 19mg/m³ is approaching the licensing limit of 20mg/m³.

Noting the above, the EPA has conducted a brief review of the Assessment raises the following concerns:

•   There are exceedances of predicted Particulate Matter;

•   There are exceedances of predicted Zinc;

…

While the EPA will continue to provide advice to DPE, the EPA’s main regulatory focus is on compliance with the licence (Environment Protection Licence No. 11555). Throughout the assessment of the SSD-5041, DP&E sought the expertise of an independent air quality expert, Alex Toderoski. DP&E may wish to engage Mr Toderoski to provide more detailed expertise in relation to assessing the Commissioning Report/s.

…

As per the previous comments provided by the EPA, our focus is on whether the EMPs reflect the requirements of the Environment Protection Licence 11555 (EPL) issued to Sell & Parker for the premises. The EPA does not approve or endorse management plans, and are merely reviewing and providing comment to assist DP&E.

73. On 18 October 2016 Appleton sent an email to S&P stating that the Department did not accept the 2016 Commissioning Report because the study was carried out on the stack which was not situated in its approved location. The stack was also not designed based on the parameters modelled in the SSD application. Appleton noted that the Department agreed with the EPA’s concerns regarding the 2016 Commissioning Report, which included that:

•   There are exceedances of predicted Particulate Matter;

•   There are exceedances of predicted Zinc;

•   The Particulate Matter results do not appear comprehensive and additional undocumented exceedances may occur;

•   The ‘as built’ stack parameters are significantly different to what was originally modelled for the development application…

•   Inadequate details are provided about plant operating conditions at the time of testing the interim ECS. An estimate of the operating capacity and process rate of the hammermill at the time of the samples, and an explanation of how the estimate was arrived at, is necessary to support the conclusions in the Assessment; and

•   The Limit of Reporting is greater than the predicted analyte concentrations used in the modelling.

74. Appleton concluded by stating that:

In light of the concerns outlined above, The Commissioning Air Quality Assessment will need to be redone when the stack is located in the approved position with the issues as outlined above addressed.

75. Subsequently, S&P submitted another Air Quality Management Plan (prepared by Higgins Planning, dated March 2017) to the Department. On 7 July 2017 the Department approved that Plan and other environmental management plans, subject to certain amendments.

76. The consent permitted a reconfiguration and increase in the receipt and processing capacity of the original facility at 45 Tattersall Road, Kings Park to 23-43 Tattersall Road, Kings Park (“the development”), subject to certain conditions (quoted earlier in the judgment).

The Department’s Site Inspection on 20 September 2016

77. On 15 September 2016 the Department’s compliance officer, Anthony Pizzolato, emailed Maddox, copying in Chase Dingle (another Department compliance officer) and Bourne, informing S&P of the Department and the EPA’s intention to carry out a site inspection on 20 September 2016 for the purpose of assessing compliance with the consent:

The Department is interested in a general introduction of the site, with the view of:

—   Understanding how Sell and Parker are tracking with the conditions of the development consent and submission of relevant management plans; and

—   Ascertain whether any development has commenced on the site.

…

Also, can you please ensure that the relevant persons whom are authorised to make representations are available on the day.

78. Later that day, Maddox responded confirming the time, attendees, and requirements for the site inspection.

79. In the week commencing 12 September 2016, S&P engaged Lloyd’s Register Quality Assurance Limited (“Lloyd’s”) to conduct an independent environmental audit of its operations at the site and to provide a report in conformity with condition C9 of the consent.

80. On 17 September 2016 Paul Dzamko from Lloyd’s emailed Bourne advising him that Lloyd’s had been engaged by S&P to prepare the audit and requesting certain information from the EPA. The email attached a letter from the Department dated 28 July 2016 and an independent audit team approval.

81. Appleton emailed the EPA’s Waste Operations Unit on 19 September 2016, requesting that it review and provide comments on the 2016 Commissioning Report. Appleton’s request was referred to Bourne, who reviewed that Report in consultation with the EPA’s Air Technical Advice Branch. Corkhill also reviewed the 2016 Commissioning Report.

82. On 20 September 2016 Dingle and Pizzolato conducted an inspection of the site in conjunction with EPA officers, Bourne and Sam Preston-Stanley (“20 September 2016 site inspection”) to determine whether development had occurred on the site otherwise than in accordance with the consent. Luke Parker, Maddox and Howard Richards, the Group Environment Manager of S&P, also attended the 20 September 2016 site inspection.

83. The inspection commenced with an initial meeting, during which S&P representatives discussed the background and current status of the development on the site. A walk-around and inspection of the operations then took place.

84. There was a subsequent meeting with the same persons present (that is, the 20 September 2016 site inspection meeting). According to Pizzolato (as deposed to in his affidavit affirmed on 20 December 2014) during that meeting Luke Parker said the following words:

Sell & Parker are currently processing around 4,000 tonnes per week. To be blunt, we were over the 90,000 threshold at the time the application was lodged with the Department. Sell & Parker were processing 4,000 per week then just over 200,000 tonnes per year. The reason Sell & Parker put in the DA application was because Sell & Parker was exceeding previous processing limits. If you want Sell & Parker to slow down processing to the 90,000 tonne limit Sell & Parker will comply and lay off 50 staff in the process.

85. Because of the importance of what was said and by whom at the 20 September 2016 site inspection meeting, the meeting is discussed in detail below.

Events After the 20 September 2016 Site Inspection and Meeting

86. On 22 September 2016 Kelly McNicol from the Department sent a letter to Maddox in relation to a draft Construction Environment Management Plan submitted by S&P. The letter stated that:

I refer to our telephone conversation on Friday 9 September 2016 when it was conveyed to you that the Environmental Management Plans (EMPs) being submitted by Sell and Parker have been inadequate, requiring significant revision and input by staff at the Department… and the Environment Protection Authority. It was also communicated that should we receive any further EMPs that require significant work that we would return the document and request that a suitably qualified and experienced person(s) undertake the EMPs.

A draft Construction Environment Management Plan (CEMP) was submitted by Sell and Parker on 19 September and on a brief review of the document based on, but not limited to C1. Of Development Consent SSD 5041, the document was deemed to be deficient in the following areas:

…

the document does not set out the environmental management practices and procedures to be followed during construction in a logical or coherent manner. It is suggested the management practices and procedures during construction be set out under specific bolded headings such as traffic management, noise and vibration management, dust and emissions management, potential hazards/incidents associated with construction etc. Include all relevant reasonable and feasible mitigation measures to protect the amenity and surrounding environment during construction…

As previously explained, the department does not have the capacity or resources to continually review deficient management plans. It is recommended that you obtain the services of a suitably qualified and experienced person to prepare the CEMP and any other management plans required to be submitted to the Department.

87. The EPA emailed Pizzolato on 28 September 2016 in respect of the 20 September 2016 site inspection and meeting. The email did not mention Luke Parker’s statement that S&P would lay off 50 staff in order to comply with the condition A8 of the consent or the Departmental response.

88. On 13 October 2016 Bourne emailed Appleton setting out the EPA’s comments following its review of the 2016 Commissioning Report.

89. On 14 October 2016 Bourne emailed Dzamko responding to his email of 17 September 2016, attaching two documents and copying in representatives of S&P and the Department. The first document contained responses to Dzamko’s request for information in the following terms:

On 20 September 2016 officers from the EPA and Department of Planning & Environment (“DP&E”) inspected the Premises. The EPA is concerned that the development may not be in compliance multiple conditions of SSD-5041, and therefore also in potential breach of multiple conditions of EPL 11555.

In summary the EPA’s concerns include:

•   Construction, commencement and escalation of site activities without:

•   the required construction certificate.

•   environmental management plans approved by the DP&E potentially in breach of SSD 5041 Conditions B4, B17, B29 and C1.

•   environmental management controls in place, in particular, controls to manage air quality emissions and stormwater pollution. This may be in breach of SSD-5041 Conditions B5, B6, B7, B18, B30 and C2 and potentially in breach of EPL 11555 Condition E1.1.

Note: The conceptual stormwater management plans have varied from the design as approved in SSD-5041 and not yet been decided by Sell & Parker or reviewed by the EPA.

•   Air quality (PM10) dust monitoring in place required by EPL11555 Condition O3.5 by 30 September 2016 and by SSD 5041 Condition B17e.

Note: The EPA’s Environment Line regularly received complaints about emissions from Sell & Parker impacting air quality.

•   Advice from Sell & Parker is that it is currently exceeding the permitted thresholds of scrap metal received and processed at the Premises in breach of Development Consent SSD-5041 Conditions A8a and A8b in breach of EPL 11555 Conditions L3.2a, L3.2b, L3.3a, L3.3b, L3.5;

•   Excavations that encountered groundwater for the construction of a bailer within the northern building on the expansion site have occurred. The EPA is unaware of whether Sell & Parker have complied with SSD-5041 Conditions B12a, B13b and B13C in relation to the excavation work.

90. The second document attached his meeting report. It relevantly stated that the following representations were made by Luke Parker and Richards at the 20 September 2016 site inspection meeting:

•   Sell and Parker are currently processing 4000 tonnes per week. Prior to the new consent being issued Sell & Parker were processing 4000 per week. (this equates to 208,000 tonnes per annum far in excess of the 90,000 tonnes per annum threshold). The reason Sell & Parker put in DA application was because Sell and Parker was exceeding previous processing limits. Sell & Parker are currently exceeding the 90,000 tonne limit. (LP)

•   If you (EPA and DPE) want Sell & Parker to slow down processing to the 90,000 tonne limit Sell & Parker will comply and lay off 50 staff in the process. (LP)

•   The shredder (Hammermill) was and is running at 100% capacity. (HR)

91. Bourne noted in his report that the following concerns were raised by the Department and the EPA at the meeting:

•   I raised concern that the expansion site was in operation and Sell & Parker do not have the stormwater management system implemented or even a concept decided upon. I expressed my opinion that planning to flood the yard with contaminated stormwater, now with a much larger catchment area would present an increase environmental and operational risks.

…

•   I (and DP&E) raised concern that Sell & Parker were operating without the management plans being approved by DP&E and the plans that have been reviewed have been found inadequate.

…

During the meeting DP&E raised concern that development was commencing and site activities were occurring without a construction certificate and also in breach of multiple conditions of consent including the threshold limits. CM stated that a construction certificate was not required for demolition or the installation of plant and received that advice from their certifier Dean Morton. DP&E stated that the requirement for a construction certificate for demolition was clearly defined in the approved development consent.

Lloyd's Independent Audit

92. Lloyd’s conducted its independent environmental audit and provided its report to S&P on 13 November 2016 (“Independent Audit Report”). The Independent Audit Report noted that (footnotes omitted):

EPL waste limit of 90,000 tonnes is being exceeded without the specifically required approval of the Emissions Collection System.

93. It concluded that:

Based on activities and records sampled, the IEA Team found that the Development, at this stage, is non-compliant with a range of conditions in both the Development Consent 5041 and the Environment Protection License EPL 11555.

This is primarily due to development activities being initiated prior to the relevant approvals of the Construction Environment Management Plan and connected sub-plans. The works thus far are more than what could be considered only preparatory; in particular, it is noted that EPL waste limit of 90,000 tonne is being exceeded without the specifically required approval of the Emissions Collection System. Also, the current (albeit temporary) expanded site water run-off to Breakfast Creek is not approved.

It is noted that the various management plans (some revised) have been submitted to the DPE and that an ECS Commissioning Report has also been submitted – none were formally approved / accepted at the time of this IEA. It is also noted that there is a transition water run-off plan (via existing retention basin) that was stated to be scheduled in approx. 6 weeks.

94. And it found that:

There were a total of 14 individual non-compliances (NCs) with Consent Conditions:

•   High Risk (9): A1, A2, A7, A8, B17, B18, B19, C1, C2

•   Medium Risk (3): B20, B29

•   Low Risk (3): B10, B13, B39

95. With respect to environmental performance the Independent Audit Report stated that:

With the number and range of NCs identified, the environmental performance of the development thus far observed is inadequate. Amongst the range of NCs, of immediate concern is the waste limit exceedance with lack of acceptance / approval of the ECS and the water run-off from the expanded site.

96. The audit findings log of the Independent Audit Report recorded various non-compliances. Appendix 1, the consent compliance table, identified that conditions A7 and A8 of the consent had been contravened as follows:

LIMITS OF CONSENT
Waste Limits
A7	The Applicant shall not receive or process on the site more than 350,000 tonnes per calendar year of waste, subject to Condition A8.	Sell and Parker Management advised (email 31st October 2016) that the facility is exceeding the EPL limit of 90,000 tonnes per calendar year (on a weekly pro rata basis) but below the 350,000 tonne limit once this Development is fully completed. The EPA Return (2015 / 2016) C2 specified that the scale of activity on the premises exceeded volume prescribed. See also comments in A8 below. It is acknowledged that the purpose of this Development is to increase the licensed limit to 350,000 tonnes per calendar year.	Non-compliant High Risk
A8	Despite Condition A7, the Applicant shall not receive or process on the site more than 90,000 tonnes per calendar year of waste (on a weekly pro rate basis) until: a) The Emissions Collection System for the hammer mill has been commissioned in accordance with Condition B20 and approved by the Secretary for operation; and b) a Final Occupation Certificate has been issued for the Development.	The IEA auditors were advised that that license limit of 90,000 tonnes per calendar year (on a weekly pro-rata basis) is being exceeded and: • The ECS (which is operational) has not been approved by the Secretary (reference DPE email 18th October 2016 stating that the Commissioning Air Quality Statement undertaken by ERM August 2016 was not accepted by the Department as meeting Consent requirements • A Final Occupation Certificate has not been issued	Non-compliant High Risk

97. It noted that “the facility is processing in excess of the EPL limit of 90,000 tonnes per calendar year”. This was identified as a “Non-Compliant High Risk”.

98. With respect to condition B19 relating to air emissions mitigation, Lloyd’s identified as a “Non-compliant High Risk” that:

1. it has been an active supporter of RUOK Day since its inception in 2009;

2. in 2020 it donated $120,000 to purchase equipment for the Westmead Institute for Medical Research's Brain Dynamics Centre to support research focussed on the resolution of mental health disorders;

3. S&P has been approved by the EPA to operate various automated collection points for the NSW Government's "Return and Earn" drink container deposit scheme; and

4. since 2010, S&P has employed and trained 10 apprentices and three management cadets at the site.

422. To the extent that the prosecutor's records show that S&P has received and paid two penalty infringement notices ("PIN") for non-compliance with the conditions of consent, while this is not a conviction to be taken into account for the purpose of s 21A(3)(e) of the CSPA, there is a question as to whether the PINs can be taken into account in relation to good character (Environment Protection Authority v Koppers Carbon Materials & Chemicals Pty Ltd (the Spill Incident) [2021] NSWLEC 12 at [79]). In the absence of the circumstances surrounding the notices, the Court notes the fact that the PINs related to a breach of the consent but accords minimal weight to them in this context (Koppers at [81]).

423. The Court also notes the positive character evidence provided by Bethwaite in respect of Luke Parker (see earlier in the judgment).

424. I therefore find that, subject to remarks above and but for the commission of the offences, S&P is generally of good corporate character (s 21A(3)(f) of the CSPA).

The Offences Could Have Been Prosecuted in the Local Court

425. While the offences could have been prosecuted in the Local Court, given their duration and complexity, such a course would have been highly undesirable (Harris vHarrison [2014] NSWCCA 84; (2014) 86 NSWLR 422 at [92]).

General and Specific Deterrence

426. The Court is required to take into account both general and specific deterrence (Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 at 569-570 per Brennan J). One of the purposes of the Court in imposing a sentence is to prevent crime by deterring the offender and other persons from committing similar offences. This purpose is enshrined in s 3A(b) of the CSPA (Gittany at [101]-[103] and Environment Protection Authority v Rands [2019] NSWLEC 23 at [162]).

General Deterrence

427. The penalty imposed by the Court must serve as a general deterrent (Environment Protection Authority v Crown in the Right of New South Wales (Office of Environment and Heritage) [2019] NSWLEC 66 at [175]-[177]). General deterrence is vital “to ensure that the penalty imposed acts to deter those who might engage in similar activities from committing like offences” (Mouawad v The Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28 at [188] and see also Axer at 359-360).

428. In Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278 Preston J discussed general deterrence in the context of environmental offending in the following terms (at [66]-[68]):

66   The sentence must also serve as a public deterrent. It is the duty of the Court to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who might otherwise be tempted by the prospect that only a light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597-598.

67   This factor is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 at 354; and Director General of National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002) at [85] and [93].

68   The deterrent effect of a fine must send an important message that laws requiring the conservation of the environment and compliance with approvals to carry out activities that may harm the environment, must be complied with. Also, the community must be satisfied that, by the Court’s sentence, the offender is given his just desserts.

429. In Minister for Planning v Moolarben Coal Mines Pty Ltd [2010] NSWLEC 147; (2010) 175 LGERA 93, the defendant pleaded guilty to an offence against s 125 of the EPAA of clearing 4.1 ha of land for the purposes of erecting a boundary fence contrary to an approval granted under Pt 3A of that Act. During the course of explaining the purpose of sentencing the Court said (at [46]):

46 The sentencing purpose of general deterrence identified in s 3A(b) is of particular significance in this matter. So much was submitted by the prosecutor and not gainsaid, in terms, by the defendant. It is a corporation engaged in a multimillion dollar coalmining project, an activity which in all its aspects had the potential to have a very significant impact upon the environment. Corporations engaged in activities of this kind must be reminded of the obligations imposed upon them to ascertain the laws and controls applicable to the carrying out of any activity associated with a particular project in order to ascertain the need for any consent or approval to that activity so that the appropriate environmental assessment can be undertaken before any approval is given to it. The sentence therefore needs to make clear to the community at large that the failure of a corporation to take these steps will be visited with significant financial penalties.

430. And as this Court more recently stated in Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 7) [2021] NSWLEC 26 (at [585]):

585    A sentence must be imposed that makes it irrational for defendants to disobey the law in the development and construction industry (Axer at 359-360 and Waste Recycling at [229]-[232]). Any penalty imposed must be more than the cost of doing business.

431. In Gittany Preston J opined that in achieving general deterrence courts need to impose a penalty that acts as a warning to others not to transgress the law but that also makes the cost of taking precautions to avoid committing the offence worthwhile (at [192]).

432. The prosecutor submitted that general deterrence is a matter that should be given substantial weight in the present sentencing exercise having regard to S&P's intentional and continued commission of the offences and its lack of insight into its offending (citing The Council of the Municipality of Kiama v Pacific Real Estate (Warilla) Pty Limited [2009] NSWLEC 191 at [103]; Axer at 359-360; Gittany at [192] and Environment Protection Authority v Dib Hanna Abdallah Hanna [2018] NSWLEC 80; (2018) 235 LGERA 114 at [206]). As one of the principal participants in the metal recycling industry in this State, S&P had the capacity to offend on a large scale and it did so. These matters elevate the seriousness of the offences and may be taken into account in relation to general deterrence (Morris McMahon & Co Pty Limited v SafeWork NSW [2019] NSWCCA 36 at [90]).

433. S&P contended that if the Court accepted its case in mitigation concerning the events of the 20 September 2016 site inspection meeting, these proceedings were not a good vehicle for the expression of general deterrence. And that, in any event, general deterrence is invariably a consideration that the Court takes into account in the sentencing exercise for environmental crime and that this ought to be awarded no greater weight than ordinary.

434. As held above, the Court has largely not accepted S&P's case in mitigation. Furthermore, the fact that S&P continues to operate in the scrap metal recycling business is of significance (Scahill at [47] and Environment Protection Authority v Sam Abbas (also known as Osama Abbas) [2021] NSWLEC 57 at [106]). A penalty must be imposed that deters other operators in that industry from committing the same or similar offences.

435. It is also highly desirable to send a clear message about the need to uphold the integrity of the planning system and development controls in the carrying out of development on land. Integral to the planning system is that conditions of consent are complied with. As the Court observed in Pacific Real Estate (Warilla) (at [104]-[106]):

104   There is, moreover, a need to ensure general deterrence in relation to other developers who may be tempted to commence construction works without having obtained all of the necessary approvals. As was stated by Preston CJ in Scahill (at [44]-[45] and [47]):

[44]   Most importantly, the sentence of the Court needs to operate as a powerful factor in preventing the commission of similar crimes by persons who might be tempted to do so by the prospect that, if they are caught, only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597. This is particularly so in the context of unlawful development, having regard to the policy considerations articulated in a number of cases including Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89 at [32]-[35]; Sutherland Shire Council v Turner [2004] NSWLEC 774 at [24]; and Carlino v Leichhardt Municipal Council (2005) 144 LGERA 235 at [32]-[34].

[45]   For environmental offences, the purpose of sentencing of general deterrence is of central importance. Many of the cases in which courts have so stated are set out in the judgment in Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349 at [59], [71]-[80] and Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 at [103]-[106]. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 at 354; (2009) 165 LGERA 289 at 299 Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 at [139]-[142], [150], [151] and Eurobodalla Shire Council v Wheelhouse [2006] NSWLEC 98 at [17].

…

[47]   The sentencing purpose of general deterrence is particularly relevant where the offender is in a business or industry that undertakes development or action that is regulated by the system of planning and development control. Persons and corporations engaged in demolition, excavation, and building and development work need to be warned by the sentence imposed by courts in cases involving unlawful demolition, excavation, and building and development work that all necessary consents must be obtained and complied with: Mosman Municipal Council v Menai Excavations Pty Ltd at [31], [32], [35]; Sutherland Shire Council v Nustas [2004] NSWLEC 608 at [18]; Byron Shire Council v Fletcher at [62]; Kari & Ghossayn Pty Ltd v Sutherland Shire Council (2006) 150 LGERA 231 at [68](e).

105   Thus in Mosman Municipal Council v Menai Excavations Lloyd J (at [35]) stated:

The system of planning control would become somewhat ineffective if persons were to carry out development…without ensuring that necessary development consent has been obtained. Whilst I accept the defendant’s submission that it is unlikely to re-offend, there is in my opinion a need to impose a penalty which reflects a general deterrence and to reinforce this obligation on the defendant.

106   His Honour’s words resonate loudly on the facts of the present case (see also Furlong at [25] where a similar sentiment was expressed by Pain J).

436. In this regard it is noted that S&P's operations involve the receipt and processing of scrap metal for profit.

437. The Court therefore takes into account the need for general deterrence in the imposition of an appropriate sentence for both offences.

Specific Deterrence

438. Specific deterrence is an aspect of the sentencing exercise, especially where a defendant continues to operate in the same field in which the incident has occurred (Axer at 359).

439. The prosecutor’s position was that specific deterrence should constitute a material element in the exercise of the sentencing discretion in this case because:

1. S&P continues to engage in the metal recycling industry;

2. the evidence establishes that S&P took a cavalier approach to interactions with the Department and sought, on several occasions, to use those interactions to its advantage and to the detriment of the regulatory system. This is illustrated by S&P making the 20 September 2016 site inspection meeting central to its case in mitigation;

3. S&P’s failure to seemingly take seriously the findings of the Independent Audit Report demonstrated its unpreparedness, at least in 2016, to take seriously the regulatory oversight imposed by the consent;

4. S&P's conduct was driven by financial gain; and

5. S&P sought to justify its commission of the offences on delay by the regulator.

440. The prosecutor accepted, however, that these considerations were mitigated to some degree by Luke Parker’s evidence that S&P had applied to increase its threshold limits (T384:12-19).

441. S&P stated that the Court was not required to take specific deterrence into account because:

1. S&P has complied with the final pre-requisites of the consent to increase production to 350,000tpa;

2. S&P has lodged a further SSD application to allow for further increases in production at the site;

3. S&P has operated in the metal recycling industry for 55 years with an excellent record; and

4. S&P has not re-offended in the three and a half years since the offences were committed and is unlikely to do so.

442. S&P further argued that it has incurred costs in order to avoid committing the offences, such as the commissioning and installation of the ECS, and that this should be taken into account by the Court.

443. That it undertook this and other measures is afforded weight by the Court, however, what must also be taken into account is the fact that S&P did not incur the cost of slowing down production in order to ensure that condition A8 of the consent was complied with.

444. Although S&P has proactively applied for increased capacity limits, and in light of my finding above that S&P is unlikely to reoffend, I nevertheless take specific deterrence into account for the reasons given by the prosecutor which I accept.

Sentencing Corporations

445. In Pacific Real Estate (Warilla) the Court made the following observations about the sentencing of corporations (at [103]):

103   In the circumstances of the present case, the need to specifically deter the defendant from repeating the conduct that resulted in the commission of the offences in the future is, on the evidence outlined above, limited but it is not, contrary to the submission of the defendant, non-existent. The intentional nature of the defendant’s conduct in commencing construction absent development consent, driven as it was in part by financial gain, favours the need for, albeit minimal, specific deterrence.

446. Here the offence was committed with the knowledge of the most senior officer of the company – Luke Parker. Moreover, everyone on S&P's board had knowledge that S&P was breaching condition A8 (T359:39-41).

447. As the prosecution highlighted, S&P is a prominent participant in the metal recycling industry and its operations are sizable in scale. As a major operator, its capacity to negatively impact upon the integrity of the planning system is commensurate with the space that it occupies in that industry. It had the capacity to offend in a material way, and it did so, by exceeding its limit by a factor of multiple times. These matters have a real tendency to augment the seriousness of the offences and may be taken into account in relation to the Court's assessment of the objective culpability of the offending conduct and in assessing the need for general deterrence.

Retribution and Denunciation

448. The Court must impose a sentence that achieves the purposes of denouncing the conduct the subject of the offences and makes S&P accountable for its actions (Pesic v Sutherland Shire Council [2019] NSWLEC 38 at [41]).

Consistency in Sentencing

449. The task of the court is to seek evenhandedness in the imposition of a sentence (R v Oliver (1980) 7 A Crim R 174 at 177 and R v Visconti [1982] 2 NSWLR 104 at 107C). However, care must be taken in achieving consistency. There is always difficulty comparing the penalty in one case with that in another because of the wide divergence of facts and circumstances in each (Axer at 365). The penalty imposed in a single case does not demonstrate the limits of a sentencing court's discretion (Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at [35] and Environment Protection Authority v Barnes [2006] NSWCCA 246 at [79]).

450. The prosecutor provided a table of comparative cases to assist the Court in the sentencing exercise. These cases are summarised as follows:

1. in Wollongong Recycling the defendant was charged with contravening ss 76A(1)(b) and 125(1) of the EPAA for exceeding the volume of waste that was permitted to be received and processed under its applicable SSD consent. The defendant was permitted to receive 30,000tpa of waste but received 40,024t of waste in the 2017 calendar year. The maximum penalty for the offence was $2,000,000. The Court found that no actual environmental harm was caused as a result of the commission of the offence, however, harm was caused to the integrity of the planning system. The evidence was insufficient to establish that the offence was committed recklessly or negligently. The defendant had no prior convictions and there were no other aggravating factors. The time period of any financial gain was limited. Genuine remorse was not established. The penalty was discounted by 25% for the utilitarian value of the defendant’s early guilty plea. The defendant provided a limited degree of assistance to the prosecutor by agreeing to a statement of facts. The Court fined the defendant $36,000, half of which was to be paid as a moiety to the prosecutor, and a publication order was made. The defendant was liable for $26,000 in costs;

2. in Environment Protection Authority v Mortdale Recycling Pty Ltd [2019] NSWLEC 106 the defendant was fined $30,000 (after the application of a 25% discount for its early guilty plea) for contravening s 64(1) of the POEOA. Additionally, it was subject to a publication order and ordered to pay costs fixed in the sum of $40,000. The contravention related to the defendant’s exceedance of a limit regarding the amount of material that could be received and processed on its premises. The limit was 30,000tpa and the defendant exceeded it by 29,931t in the 2017/2018 reporting year. The defendant was granted a SSD consent in late 2017 for the increase in volume limits. The maximum penalty for the commission of the offence was $1,000,000. The Court found that the offence was of low to medium objective seriousness and constituted a clear case of negligence bordering on recklessness. There was potential environmental harm, albeit minimal, in addition to harm caused to the integrity of the planning regime. The defendant had no prior convictions, assisted the authorities and took prompt remedial action. The defendant demonstrated a level of contrition and remorse;

3. Environment Protection Authority v Minto Recycling Pty Limited [2019] NSWLEC 193 concerned the appropriate sentence to be imposed on the defendant for contravening s 64(1) of the POEOA for exceeding the 30,000tpa waste receipt limit contained in its EPL. The maximum penalty was $1,000,000. The defendant received 169,695t of waste in the relevant year. During the charge period, the defendant had made a SSD application to increase its permitted waste receipts. This increase was subsequently granted. The defendant had ceased trading prior to the imposition of the sentence, and therefore, specific deterrence was given no weight. The objective seriousness of the offence was at the top of the low range. The sole factor of aggravation was that the offence was committed for financial gain. The dispute regarding environmental harm resulted in the hearing taking over ten days. The defendant did not agree to a statement of facts but did tender a statement of admissions. Assistance to the prosecutor was not established. The defendant was fined $90,000 (after the application of a 25% discount for the entry of an early guilty plea). A publication order was made and the defendant was ordered to pay the prosecutor’s costs as agreed or assessed;

1. in Environment Protection Authority v Wyanga Holdings Pty Ltd; Environment Protection Authority v Cauchi [2015] NSWLEC 78 a corporate defendant and its directors were sentenced for three contraventions of s 64(1) of the POEOA. The maximum penalty was $1,000,000 for the corporate defendant and $250,000 for each of the directors. The defendants exceeded the volume limit of 50,000tpa imposed under their EPL in respect of quarried extractive material. Each offence related to a different charge period. The exceedances were substantial (96,597t for the first offence, 368,363t for the second, and 81,512t for the third). The EPL was suspended in 2013. The defendants had sought an increase in the volume limit in 2010 and there were extensive delays in the approval process. The Court found that the objective seriousness of the offences was low to moderate. There was the potential for environmental harm, albeit minimal. The Court took into account the defendants’ intentional disregard for the extraction limit, the long-running nature of the substantial exceedances in volume and the fact that the investigation and show-case notice were ignored. There were no relevant prior convictions. The offences were found to have been committed for financial gain. In mitigation, the defendants were held to be unlikely to reoffend given that a new increased volume limit was subsequently granted. Specific deterrence was, therefore, given no weight. Remorse was established. The Court applied a 40% discount for the defendants’ early pleas of guilty and other mitigating factors. The defendants were fined $81,000 after the relevant discounts and the application of the totality principle. The defendants were also sentenced for the provision of misleading information to the EPA;

2. a corporate defendant was fined $30,000 for contravening s 64(1) of the POEOA by handling 88,949tpa of extracted material, a quantity almost three times its EPL limit of 30,000tpa, in Environment Protection Authority v M A Roche Group Pty Ltd [2014] NSWLEC 114. Towards the end of the charge period the defendant had applied to increase its limit to 250,000tpa. The maximum penalty for the offence was $1,000,000. The offence was held to be of low objective seriousness. The defendant had prior offences for water pollution and for obstructing an authorised officer. The offences were held to be committed for financial gain. Moreover, there was no remorse or contrition. However, in mitigation, the sentences were discounted by 25% for an early guilty plea. Other factors in mitigation included the assistance provided by the defendant and its agreement to pay the prosecutor’s costs. The defendant was ordered to pay the prosecutor’s costs as agreed or assessed and to publish details of the offence in two publications; and

3. in Environment Protection Authority v M A Roche Group Pty Ltd [2015] NSWLEC 29 the same corporate defendant was sentenced for contravening s 64(1) of the POEOA for handling 62,475t of extracted material when its EPL limit was 30,000tpa. The objective seriousness of the offence was assessed as being low to medium. There was a risk of environmental harm as a result of the commission of the offence due to increased dust and noise emanating from the subject site. The offence also undermined the regulatory planning scheme in NSW. The Court considered specific deterrence in undertaking the sentencing exercise. The Court found that the defendant should have been on notice of the risk of the contravention having received a prior PIN. The Court found that the offence was committed for financial gain. Mitigating circumstances included that the defendant was fully cooperative and entered a plea of guilty at the earliest opportunity. The defendant was fined $52,000 after the application of a 35% discount for the utility of its early guilty plea and other mitigating factors. The defendant paid the prosecutor’s costs in the agreed sum of $9,751.

451. I have had regard to these cases, noting their similarities and differences, in the imposition of the penalties in these proceedings.

Publication Order

452. Pursuant to s 126(2A) of the EPAA, the Court is empowered under s 250(1)(a) of the POEOA to order S&P to publicise the commission of the offences (including the circumstances of their commission). The parties have agreed to a publication order in the terms provided at annexure A to this judgment.

Financial Means of Sell & Parker

453. There was no suggestion that S&P would be unable to pay any monetary penalty likely to be imposed upon it by this Court (see s 6 of the Fines Act 1996).

Costs

454. In the exercise of its sentencing discretion in relation to the quantum of any monetary penalty to be imposed on S&P, the Court can take into account the costs that S&P agrees to pay (Barnes at [78] and [88]). In doing so, the Court must be mindful that the payment of the prosecutor’s costs is not a reason for reducing any penalty to be imposed in a particular case lower than that suggested by the general pattern of sentencing for the relevant offence (Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 at [50]).

455. The prosecutor sought an order under s 257B of the Criminal Procedure Act 1986 for the payment of its professional costs as agreed or assessed. During the sentence hearing the parties agreed that S&P would pay the professional costs of the prosecutor fixed (see s 257G of that Act) in the sum of $269,630 (rounded down), excluding the costs associated with two of the prosecutor’s experts, Natalie Faulkner and Gregor Riese (T552:07-08), and the preparation and hearing of the notices of motion on 14 March 2019, which resulted in a finding of duplicity (T552:17-33).

Totality Principle

456. The totality principle is a relevant consideration when determining an aggregate penalty in sentencing for multiple offences (Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 62-63; Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [40]; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [18] and Water NSW v Barlow [2019] NSWLEC 30; (2019) 244 LGERA 1 at [111]-[112]). The task of the Court is to ensure that the overall sentence is neither too harsh nor too lenient.

457. Care must nevertheless be taken “to ensure that any adjustment of individual sentences does not cause the aggregate sentence not to reflect the total criminality of the offender’s conduct or the sentence for any individual offence to become disproportionate to the objective gravity of that offence” (Rawson at [222]). The identified risk is that if “sentences are reduced substantially, offenders may view that they can escape punishment for successive deliberate discrete offences” (Gittany at [199] and [201]; R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 at [45]-[46] and R v Wheeler [2000] NSWCCA 34 at [36]-[37]). That is to say, the application of the totality principle must not cause public confidence in the administration of justice to be undermined by any perception that “what is in effect being offered is some kind of a discount for multiple offending” (R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [18]).

458. In R v Toohey [2019] NSWCCA 182, Gleeson JA summarised the application of the principle as follows (at [56]):

56   As to totality, it is well established that questions of accumulation and concurrence are, generally speaking, matters for determination by a sentencing judge in the exercise of his or her discretion. The focus is on a consideration of the similarity, differences and the degree of connection between the offences both in time and type to ascertain the extent to which the sentence for one offence can comprehend and reflect the criminality of the other: Pannowitz v R [2016] NSWCCA 13 at [40] (Davies J, Hoeben CJ at CL and Beech-Jones J agreeing). That calls for the identification and an evaluation of the relevant factors pertaining to the offences and will include the nature and seriousness of each offence.

459. The principle applies with different force where the penalty imposed is a fine. In Camilleri’s Stock Feeds Kirby P (as he then was) said (at 704D):

The principle of totality is applicable where the penalty imposed is by way of fine: see R v Sgroi (1989) 40 A Crim R 197 at 203. However, it may be that the principle of totality may not have the same force in the case of the imposition of fines, as opposed to the imposition of imprisonment where it has a special operation: see R v Brown (1982) 5 A Crim R 404 at 407.

460. This passage was quoted with approval in Barnes (at [46]) where Kirby P explained the application of the totality principle to fines in this way (at [49] and [50]):

49   Dealing with these arguments, the totality principle clearly had application. Her Honour was sentencing for two offences. It was not simply a matter of fixing a fine for each offence. Her Honour was obliged to review the aggregate and consider whether it was just and appropriate, as a reflection of the criminality overall. That may require some moderation of the sentences imposed in respect of each offence.

50   Here, the fine in respect of count 1 ($4,000) was significantly different from that in respect of count 2 ($500). However, the disparity by itself does not suggest error. Where there are multiple offences, each punishable by a custodial sentence, the totality principle may find expression through the complete or partial accumulation of sentences, or through making all or some of the sentences concurrent (cf. Pearce v The Queen (1998) 194 CLR 610, per McHugh, Hayne and Callinan JJ at 624 (para 45)). However, there is obviously no room for partial accumulation or concurrence in the case of fines. If the sentencing Judge believed that the totality principle required an adjustment to the fines which may otherwise be appropriate, the amount of each fine had to be altered, applying the sentencing principles suggested in Johnson v The Queen (2004) 205 ALR 346.

461. The parties submitted that the totality principle applied in the present proceedings consistent with the principles articulated in the authorities quoted above. The submission may be accepted. The elements of each offence are identical and co-incident in respect of the offending conduct, the circumstances giving rise to the commission of the offences, and the provisions of the EPAA contravened. Accordingly, the application of the totality principle to both charges is warranted. That the offences related to different time periods and different quantities of waste received does not derogate from this conclusion.

Moiety

462. The prosecutor seeks an order pursuant to s 122(1) of the Fines Act directing the payment of half of any fine imposed upon S&P to the prosecutor. S&P did not contest the appropriateness of such an order and I make it.

Appropriate Sentence

463. Having regard to the objective seriousness of the offences and the mitigating subjective factors in favour of S&P, together with the penalties imposed in the relevant comparable cases, I consider that the appropriate sentence to be imposed is a monetary penalty of $200,000 for the 2016 offence and $225,000 for the 2017 offence.

464. The penalties must be discounted by 20% for the utilitarian value of S&P’s early pleas of guilty, resulting in a monetary penalty of $160,000 for the 2016 offence and $180,000 for the 2017 offence.

465. After the application of the totality principle, the penalty for the 2017 offence should be reduced to $90,000.

466. The total monetary penalty imposed on S&P for the commission of the two offences is, therefore, $250,000.

Orders

467. In conformity with the reasons given above, the Court makes the following orders:

Proceeding 2018/242442

1. the defendant is convicted as charged;

2. the defendant is fined the sum of $160,000, half of which ($80,000) is to be paid to the prosecutor under s 122(2) of the Fines Act 1996;

Proceeding 2018/242443

3. the defendant is convicted as charged;

4. the defendant is fined the sum of $90,000, half of which ($45,000) is to be paid to the prosecutor under s 122(2) of the Fines Act 1996;

Proceedings 2018/242442 and 2018/242443

5. pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, within 28 days of the date of this order, and at its own expense, the defendant is to cause a notice in the form of annexure A, at a minimum size of 12 cm x 15 cm, to be placed within the first 10 pages of the following publications:

1. The Daily Telegraph;

2. The Australian Financial Review; and

3. The Sydney Morning Herald;

6. pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, within 28 days of the date of this order, and at its own expense, the defendant is to cause a notice in the form of annexure A to this order to be placed on the home page of the website of Sell & Parker Pty Ltd (

7. within 35 days of the date of this order, the defendant is to provide to the prosecutor a complete copy of the pages of the publications and website in which the notices have appeared pursuant to orders 5 and 6 above;

8. pursuant to ss 257B and 257G of the Criminal Procedure Act 1986, the defendant is to pay the prosecutor’s costs fixed in the sum of $269,630 for both sets of proceedings; and

9. the exhibits are to be returned.

Annexure A

Sell & Parker Pty Ltd is Convicted of Contravening its Development Consent and Ordered to Pay $250,000

Sell & Parker Pty Ltd (“Sell & Parker”) has been convicted and has been ordered to pay a fine in the sum of $250,000 by the Land and Environment Court of NSW for two offences against s 125(1) of the Environmental Planning and Assessment Act 1979 (“EPAA”) of carrying out development on land, comprising an expansion of its metal recycling facility at Kings Park, NSW, to enable it to receive and process up to 350,000 tonnes of scrap metal per calendar year, otherwise than in accordance with a development consent issued by the then Department of Planning and Environment (“the Department”), contrary to s 76A(1)(b) of the EPAA.

The development consent included a condition that Sell & Parker was not permitted to receive or process at the facility more than 90,000 tonnes per calendar year of waste until the emissions collection system for a hammer mill had been commissioned and approved for operation, and before a final occupation certificate had been issued.

In the 2016 calendar year Sell & Parker received 105,386.751 tonnes of scrap metal in excess of its permitted limit.

In the 2017 calendar year Sell & Parker received 178,645.476 tonnes of scrap metal in excess of its permitted limit.

On 19 May 2022, the Land and Environment Court of NSW sentenced Sell & Parker for the two offences and ordered it to:

1.   pay a fine in the sum of $250,000;

2.   pay the Department’s costs fixed in the sum of $269,630;

3.   place a notice in news publications advising of the commission of the offences, and to pay for the placement of those notices; and

4.   place a notice on the home page of Sell & Parker’s website advising of Sell & Parker’s commission of the offences.

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Decision last updated: 23 May 2022