Smirneos v Lane Cove Council

[2000] NSWLEC 241

Land and Environment Court

of New South Wales

CITATION:

Smirneos v Lane Cove Council [2000] NSWLEC 241

PARTIES:

APPELLANT:
Peter Smirneos

RESPONDENT:
Lane Cove Council

FILE NUMBER(S):

60001 of 2000

CORAM:

Lloyd J

KEY ISSUES:

Environmental Offences :- water pollution - plea of not guilty - whether Proudman v Dayman defence available

LEGISLATION CITED:

Clean Waters Act 1970 s 16(1), s 16(3), s 16(7)
Crimes (Sentencing Procedure) Act 1999 s 10
Environmental Offences and Penalties Act 1989 s 8G
Justices Act 1902 Pt 5B

CASES CITED:

Proudman v Dayman (1941) 67 CLR 563;
State Rail Authority of New South Wales v Hunter Water Board (1992) 28 NSWLR 721

DATES OF HEARING:

24/07/2000

DATE OF JUDGMENT:

07/24/2000

LEGAL REPRESENTATIVES:

APPELLANT:
K R Newell (Barrister)
SOLICITORS:
Lyon Law Firm

RESPONDENT:
A M Hawkes (Solicitor)
SOLICITORS:
Pike Pike & Fenwick

JUDGMENT:

5

IN THE LAND AND Matters No: 60001 of 2000

ENVIRONMENT COURT Coram: Lloyd J

OF NEW SOUTH WALES Decision date: 24 July 2000

Peter Smirneos
Appellant
v
Lane Cove Council
Respondent

EXTEMPORE JUDGMENT

HIS HONOUR:

1. This is an appeal under the Justices Act 1902 Part 5B against the conviction of the appellant by a magistrate on 1 November 1999 of the offence of causing waters to be polluted contrary to the Clean Waters Act 1970 section 16(3). By dint of section 16(7) of the Clean Waters Act a person who contravenes section 16(1) of that Act is guilty of an offence against the Environmental Offences and Penalties Act 1989. The appeal in this case is governed by the Justices Act Part 5B and is a rehearing.

2. The facts may be briefly described. On Wednesday 5 May 1999 Mr J N Reilly who is the regulatory officer of the prosecutor went with Mr G W Dryburgh, the prosecutor’s manager, Environmental Health Services, to a building site at No. 1 Penrose Street, Lane Cove. There he observed a hose coming from an underground garage that was being built at the front of the property. The hose had been placed across the footpath and ran into the kerb and gutter of Penrose Street. The hose was emitting a dark brown liquid substance which ran downhill into an open stormwater drain.

3. Mr Reilly observed that there was a person standing in the garage, that the hose was attached to a pump, that there were some inches of dark brown muddy water in the garage, that the person was wearing Wellington boots and there was silt and clay at the bottom of the water in the garage. The person told Mr Reilly that the foreman had told him to pump the water out of the garage.

4. The appellant was then spoken to and the appellant said that the water was clean enough to drink. Subsequently a penalty infringement notice was prepared and served on the defendant by post on 11 May 1999.

5. Mr G W Dryburgh gave evidence. He says that on 5 May 1999 he was driving along Penrose Street towards the city. He saw a dark brown liquid coming down the gutter from a hose at number 1 Penrose Street, which was discharging into the gutter from a garage. He returned to the site with Mr Reilly. He observed that there were no sedimentation controls in place. He approached the appellant and said: “We are looking for the foreman” . The appellant said: “I am that person .” Mr Dryburgh said: “We want to talk to you about the water coming from the site and no sediment controls.” Thereafter the pump was turned off and the flow ceased.

6. Mr Dryburgh further says that he was advised by the appellant at the time that the water was clean and there was no need for any filter. He further says that it was never mentioned to him by anyone that there was a filter on the site and no filter was pointed out to him.

7. Ms N C Schultz is the present manager of Environmental Services employed by the prosecutor. She says that she was contacted by the appellant by telephone on 29 October 1999 ( after the penalty infringement notice was served) and she was told by the appellant that he could not afford to pay the fine and that he had a young family. The appellant also told her “it was only water” . She said: “It contains pollutants” . He said: “It is only water containing soil and sand.”

8. The appellant had previously written and sent two letters to the council in December 1998 in which he indicated that pollution control measures would be taken. It is clear that he was aware of the responsibility of persons to prevent any pollution escaping from the site.

9. The appellant himself gave evidence. He says that the licensed builder was his wife, Barbara Smirneos. They had invested some money in the building project on the site. He knew it was an offence to discharge dirty water into the kerb and guttering. On the date in question he had arrived at about 8am. It had been raining the previous week and he instructed a young labourer to pump the water out of the basement. He also says that on every previous occasion when that had been done, use had been made of a “geotech” filter at the outlet of the pipe. He says that he expected the filter to be used on this occasion. He accepts that on this occasion the filter was not used, but says that it was on the site. As to his role, he says he was assisting and overseeing the people who were there and again emphasised that as far as he was aware the filter was in use.

10. The offence under section 16(3) of the Clean Waters Act is a strict liability offence. That means that it is not necessary for the prosecutor to prove mens rea on the part of a defendant. It is nevertheless necessary for the prosecutor to prove every element of the offence. That is to say, that a polluting event occurred, that someone caused the pollution to occur and that that someone was the defendant.

11. In my opinion the prosecutor has established those elements. It is clear from the defendant’s own evidence that he instructed the labourer to pump the water out of the basement. That event caused the pollution and the prosecutor has therefore discharged the onus upon it.

12. Nevertheless the defendant relies upon the defence of an honest and reasonable belief known as the Proudman v Dayman defence ( Proudman v Dayman (1941) 67 CLR 563). That is to say, he was entitled to rely upon his previous instructions to the labourer, or alternatively, he was entitled to expect that the “geotech” filter would be used.

13. It has been held that mere lack of knowledge that pollution was occurring or was likely to occur based upon a general understanding or assumption that everything was in order is not be sufficient to amount to a mistaken belief so as to give rise to the defence: see State Rail Authority of New South Wales v Hunter Water Board (1992) 28 NSWLR 721 in the Court of Criminal Appeal.

14. In the present case, in my opinion, the defence has not been established. That is to say the reliance by the defendant upon an assumption that the “geotech” filter was in place is not sufficient to amount to the defence upon which he relies. Moreover I am satisfied by the evidence of Mr Reilly and Mr Dryburgh that the appellant had said to them on the site on the date of the offence that the water was clean and hence there was no need for a filter. It follows, in my opinion, that the offence is proved.

15. On the question of penalty I have noted that the appellant received a penalty infringement notice which specified a penalty of $600. The Local Court magistrate had imposed a penalty of $500. Under section 8G of the Environmental Offences and Penalties Act, if a person elects to have the matter dealt with by a court rather than by payment of the penalty infringement notice, the maximum penalty that may be imposed on the person in respect of the offence is three times the amount payable under the penalty notice, or the maximum penalty that may be imposed for the offence if dealt with otherwise than by way of penalty notice, whichever is the lesser. In the present case it is three times the amount payable under the penalty notice which is the lesser. That is to say, the maximum penalty that can be imposed by the Court is $1800.

16. The prosecutor accepts that this particular offence is one which might be said to be at the lower end of the scale. The appellant applies for dismissal of the charges pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999. In deciding whether to make an order under that section, the Court is to have regard to the following factors (a) the person’s character, antecedents, age, health and mental condition; (b) the trivial nature of the offence; (c) the extenuating circumstances in which the offence was committed; and (d) any other matter that the Court thinks proper to consider.

17. The appellant in this case has been in the construction business for some thirteen years and has no conviction of any kind I am told in that time. He has recently apparently started a new construction business with his wife. He is aged thirty-two and has a young family, and it is put on his behalf that there is no evidence of actual environmental harm.

18. The invoking of section 10 of the Crimes (Sentencing Procedure) Act 1999 and its predecessor, section 556A of the Crimes Act 1900, has only rarely occurred in this Court in the case of environmental offences. This is for a number of reasons, one of which is the need for not only a specific deterrent but, in particular, a general deterrent. It must be remembered that this is a strict liability offence: the offence provides that a person must not cause any waters to be polluted. I am also mindful of the fact that in the present case the appellant had asserted that there was in this instance no need for a filter since, the water was asserted by him to be clean.

19. I do not think the offence can be described as trivial but I accept that it is at the lower end of the scale. I therefore propose to confirm the penalty imposed by the magistrate, that is, a sum of $500 (which is about twenty eight percent of the maximum fine).

20. The formal orders of the Court are:

1. The appellant is convicted of the offence as charged.
2. I confirm the orders made by the magistrate including the order for the payment of penalty in the sum of $500.
3. The exhibits may be returned.
4. The appellant must pay the prosecutor’s costs as agreed or assessed.