State Pollution Control Commission v CSR Limited - [1989] NSWLEC 213

Land and Environment Court

of New South Wales

CITATION: State Pollution Control Commission v CSR Limited [1989] NSWLEC 213

PARTIES:
APPLICANT
State Pollution Control Commission
RESPONDENT
CSR Limited

FILE NUMBER(S): 50001 - 50014 of 1989

CORAM: Cripps J

KEY ISSUES: :-

LEGISLATION CITED: Clean Waters Act
State Pollution Control Commission Act

CASES CITED: Hair v The Sydney Harbour Tunnel Company 5 April 1989 (unreported)

DATES OF HEARING:

DATE OF JUDGMENT:
07/01/1989

LEGAL REPRESENTATIVES:

JUDGMENT:

His Honour: The above fourteen prosecutions were heard together. Matters Nos: 50001/89, 50003/89 and 50006/89 were withdrawn and, accordingly, the formal order I make is that these proceedings be dismissed. In matters Nos: 50002/89, 50003/89, 50004/89, 50005/89, 50007/89, 50008/89, 50009/89, 50010/89, 50011/89, 50012/89, 50013/89, CSR Limited has pleaded guilty and, accordingly, the formal order I make is that in each case the Company stands convicted of the offence with which it is charged.

The offences, the subject of the pleas of guilty, occurred between 4 July 1988 and 11 August 1988. Four of the charges arise under s 16 of the Clean Waters Act and the remaining seven under s 17D(9) of the State Pollution Control Commission Act.

Section 16 of the Clean Waters Act provides that:

"A person shall not pollute any waters or cause or permit any waters to be polluted".

Section 16(6) provides that it shall not be an offence under s 16 for a person to pollute waters if he holds a licence and does not pollute the waters in contravention of the conditions of the licence.

Section 17D of the State Pollution Control Commission Act empowers the Commission to grant licences for the pollution of waters within the meaning of the Clean Waters Act 1970. Section 17D(9) makes it an offence for any person, being the holder of a licence, to contravene a condition of the licence.

In the present case, CSR Limited conducted an alluvial gravel crushing and concrete batching operation on the banks of the Bellingen River approximately 4 kilometres west of Bellingen. It was the holder of a licence granted pursuant to s 17D to discharge polluted material into the Bellingen River subject to a number of conditions, the relevant ones being that:

"The licencee shall be responsible for the operation and maintenance of the works and shall ensure that the works are operated at all times by a competent operator in accordance with the conditions of the licence". (Condition 3)

and

"The waste shall not ...

(a) contain any more than 150mg per litre of non-filtrable residues ... ". (additional Condition 2.

On 4 August 1988, Mr Greenbank, a Pollution Control Inspector employed by the State Pollution Control Commission, noticed turbidity in the Bellingen River adjacent to the operation being undertaken by CSR Limited. He visited the works and saw polluted water being discharged into the river from two points that have been described as the "lower point" of discharge and the "upper point" of discharge. He estimated that the polluted water was running into the Bellingen…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [1989] NSWLEC 213
Decision Date: 07/01/1989

CaseChat Overview and Summary

The State Pollution Control Commission (SPCC) brought proceedings against CSR Limited in the Land and Environment Court of New South Wales for multiple offences of water pollution. CSR Limited, a holder of a licence to discharge polluted material into the Bellingen River, was found to have discharged pollutants in excess of the permitted levels, violating both the Clean Waters Act and the State Pollution Control Commission Act. The court considered the severity of the breaches, the potential environmental harm, and CSR Limited's previous compliance record in determining penalties. CSR Limited pleaded guilty to the charges, leading to a conviction on all counts.

The court found that CSR Limited's actions constituted serious breaches of environmental law. The pollutants discharged included non-filtrable residues significantly exceeding the permitted limit of 150mg per litre, with measurements reaching as high as 2200mg per litre. This resulted in substantial potential environmental damage, including the potential to kill benthic life and other photosynthetic organisms, and to reduce light penetration in the river. The court emphasised that the potential harm was significant enough to warrant serious penalties, despite the lack of definitive evidence of actual damage.

In deciding the penalties, the court noted that while CSR Limited's actions were serious, it was not appropriate to impose daily penalties for the duration of the offences. Instead, the court assessed each set of offences separately and imposed fines accordingly. CSR Limited was fined a total of $60,000 for the breaches of both the Clean Waters Act and the State Pollution Control Commission Act. The court also considered CSR Limited's plea of guilty and its general compliance with environmental laws, though it noted the unexplained delay in stopping the pollution. Additionally, the court ordered CSR Limited to pay costs, with certain claims disallowed due to the early conclusion of the proceedings.

The court's final order mandated that the fines be paid to the Registrar of the Land and Environment Court, while the costs were to be paid to the Crown Solicitor, with a 28-day extension for payment. The decision underscored the importance of adhering to environmental regulations and the potential consequences of non-compliance.

Orders