Warringah Council v Koch and Severino

Land and Environment Court

of New South Wales

CITATION:

Warringah Council v Koch and Severino [2006] NSWLEC 551

PARTIES:

50070 of 2005

PROSECUTOR:
Warringah Council

DEFENDANT:
Horst Koch

50071 of 2005

PROSECUTOR:
Warringah Council

DEFENDANT:
Santo Angelo Severino

FILE NUMBER(S):

50070; 50071 of 2005

CORAM:

Biscoe J

KEY ISSUES:

Environmental Offences :- Prosecution for polluting waters – proof of pollution – circumstantial evidence

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s 96(2)
Protection of the Environment Operations Act 1997 120(1)

CASES CITED:

Cliftleigh Haulage Pty Ltd v Byron Shire Council [2005] NSWLEC 692;
Doney v The Queen (1990) 171 CLR 207;
Environment Protection Authority v All Chrome Shop Pty Ltd (1996) 89 A Crim R 474;
Environment Protection Authority v Munters Pty Ltd (1998) 98 LGERA 279;
Eslarn Holdings Pty Ltd v Tumut Council (Lloyd J, NSWLEC, 20 October 1998, unreported);
Imnetu v R [2006] NSWCCA 203;
Shepherd v R (1990) 170 CLR 573;
Stevens v R (2005) 222 ALR 40

DATES OF HEARING:

26-28/04/2006, 01-02/05/2006, 09/05/2006, 30/05/2006

 
DATE OF JUDGMENT: 

08/31/2006

LEGAL REPRESENTATIVES:

PROSECUTOR:
Mr A Galasso, barrister
SOLICITORS
Mathews Folbigg

DEFENDANT
Mr M Baird, barrister
SOLICITORS
Wood Marshall Williams

DEFENDANT
Mr T Howard, barrister
SOLICITORS
Cara Marasco & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

31 August 2006

50070 of 2005

WARRINGAH COUNCIL v KOCH

50071 of 2005

WARRINGAH COUNCIL v SEVERINO

JUDGMENT

HIS HONOUR

:

INTRODUCTION

1 These two water pollution cases have been heard together. The charge against each defendant is that on or about 21 February 2005 he committed an offence against section 120(1) of the Protection of the Environment Operations Act 1997 (“the Act”) by causing waters to be polluted from land at 48 Myoora Road, Terry Hills.

2 It is alleged that sediment-laden water and suspended solids were pumped from 48 Myoora Road into the waters on the western fork of a watercourse running through the adjoining property to the south, 46 Myoora Road. The point of discharge was a small pond on that western fork referred to in the evidence as “the commencement point”. The watercourse connects to Kieran’s Creek which joins Cowan’s Creek. The “waters” for the purposes of s 120(1) constitute the watercourse and Kieran’s Creek.

3 The contravention is alleged to have occurred during the course of construction of a function and reception centre at 48 Myoora Road. These works were authorised under a conditional development consent granted by the prosecutor council on 1 March 2004, which was modified pursuant to Environmental Planning and Assessment Act 1979 s 96(2), and under a construction certificate issued by Insight Development Consultants Pty Limited on 7 February 2005.

4 The defendant in the first proceedings, Mr Horst Koch, was at all material times the holder of a builder’s licence and the person nominated as the builder on the construction certificate. It is alleged that he was the person implementing the development consent and the construction certificate. The…