Wollongong City Council v Belmorgan Property Development Pty Limited

[2008] NSWLEC 291

Land and Environment Court

of New South Wales

CITATION:

Wollongong City Council v Belmorgan Property Development Pty Limited [2008] NSWLEC 291

PARTIES:

PROSECUTOR:
Wollongong City Council

DEFENDANT:
Belmorgan Property Development Pty Limited

FILE NUMBER(S):

50013 of 2008

CORAM:

Biscoe J

KEY ISSUES:

Environmental Offences :- plea of guilty to oil pollution of waters contrary to s 120(1) Protection of the Environment Operations Act 1997 - appropriate sentence.

LEGISLATION CITED:

Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(e)
Protection of the Environment Operations Act 1997 (NSW), s 120(1), 123(a), 203(2), 241(1), 257

CASES CITED:

Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304
R v Thompson; R v Houlton (2000) 49 NSWLR 383

DATES OF HEARING:

23-24 September 2008

EX TEMPORE JUDGMENT DATE:

24 September 2008

LEGAL REPRESENTATIVES:

PROSECUTOR:
Mr T. Howard
SOLICITORS:
Kells The Lawyers

DEFENDANT:
Mr J. Doyle
SOLICITORS:
Thomson Playford

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

24 September 2008

50013 of 2008

WOLLONGONG CITY COUNCIL v BELMORGAN PROPERTY DEVELOPMENT PTY LIMITED

JUDGMENT

1 HIS HONOUR: The defendant has pleaded guilty to the charge that on 27 February 2007 at Wollongong it committed an offence against s 120(1) of the Protection of the Environment Operations Act 1997 (POEO Act) in that it did pollute waters. The pollutant was oil or liquid containing oil. The waters that were polluted were wetlands located at and near the Wollongong Golf Club and water stored in the stormwater pipes and channels located upstream of and draining to the wetland, being stormwater pipes and channels in Burelli Street, Corrimal Street and Bank Street, Wollongong.

2 The defendant has the management or control of the premises from which the pollution occurred, which was a development site located on the corner of Burelli and Corrimal Streets. The defendant is taken to have caused the pollution pursuant to s 257 of the POEO Act because it was the occupier of the premises.

Circumstances of the offence

3 There is a comprehensive agreed statement of facts which are set out at [4] to [95] below.

The site

4 The land from which the pollution emanated was the property known as 26 Burelli Street and 23-37 Crown Street, Wollongong (the Site) which is owned by Wollongong City Plaza Pty Limited (WCP), an associated entity of the defendant. At the time of the pollution incident there were four separate buildings on the Site. Each of those buildings was further structurally partitioned into different workshops and salesrooms. The Site is 1.09 hectares in area.

5 Specifically, the pollution emanated from the “Holden Workshop Area” forming part of a building located on the southern boundary of the Site.

6 WCP purchased the Site from Dwyers Properties Pty Limited as a development site. Prior to purchase, the Site had for many decades been used as a vehicle repair shop and sales facility by entities associated with Dwyers. The contract for sale was signed on 28 January 2004. It was completed on 9 July 2004.

7 The Site was purchased subject to a lease back to Dwyers. Dwyers continued to operate its business at the Site under the lease until it vacated the Site on or about 1 October 2006.

8 The contract for sale under which WCP purchased the Site included at condition 46 provision for Dwyers to, within the 6 month period following completion of the contract, serve on WCP for negotiation a draft remediation action plan for the remediation of contamination of the Site, and then to complete the remediation according to that plan as finalised. Prior to WCP taking possession of the site, Dwyers provided to WCP a number of contamination reports each authored by Heggies (New Environment).

9 The contamination reports completed for Dwyers which were supplied to WCP included:

(a) Stage 1 Site Contamination Investigation Report No JET 1828_003 prepared by Johnstone Environmental Technology Pty Ltd dated October 2003;
(b) Stage 2 Detailed Site Investigation prepared by Heggies (New Environment) dated 26 November 2004 ( Detailed Site Investigation );
(c) Hazardous Materials Survey Report No 6389/01/HMR dated 29 November 2004 ( Hazardous Materials Survey );
(d) Preliminary Soil Sampling in Dwyer Holden, Showroom Areas prepared by Heggies (New Environment) dated 28 October 2005;
(e) Additional Soil Sampling report prepared by Heggies (New Environment) dated 8 August 2005;
(f) letter from Heggies (New Environment) to the defendant dated 26 March 2006 re Response to enquiries from Wollongong City Council regarding the potential presence of underground storage tanks below the footpath/roadway areas of the Crown Street frontage of the Holden special vehicle and Ute showrooms (including the results of subsurface radar investigations conducted by GBG Australia) ( Underground Tanks Letter ); and
(g) “ Remedial Action Plan – no 6478/03/RAP ” prepared by Heggies (New Environment) dated 22 May 2006 ( Remedial Action Plan ).

10 In July 2006, after receiving the Remedial Action Plan from Dwyers, WCP accepted a contractual obligation with Dwyers to remediate the site by Deed of Novation dated July 2006.

11 On 27 July 2006 the defendant engaged Adrian Hall of URS to act in the role as accredited auditor for the remediation of the site.

12 Heggies (New Environment) prepared Proposal 9616 Expression of Interest for Environmental Consulting Services dated 24 August 2006 (containing advice concerning the site) for the defendant (Heggies Proposal).

13 The Site had been substantially vandalised immediately before the defendant commenced occupation. The Holden Workshop Area particularly had been strewn with rubbish including asbestos fragments. Liquids associated with automobile repairs (such as brake fluid) had been overturned. The ground was covered in a thick grease and oil build-up.

14 The defendant did not conduct any business from the Site during its occupation before demolition.

15 Dwyer’s waste oil contractor, Nationwide Oil, attended the site on 3 October 2006 after Dwyers had left the site and pumped out 300 litres of oil.

2006 development consent

16 On or about 25 July 2006 the defendant made a development application to the prosecutor for development on land described as Lot 1 DP 1078311, known as 31 Crown Street, Wollongong (development site). The proposed development was described in the application form as “Demolition of existing buildings including site remediation works”.

17 On 28 July 2006 the prosecutor granted consent to the development application (DA-2006/1100). Condition 1 of the consent required the approved development to be carried out in compliance with the Remedial Action Plan which was approved by the prosecutor. The council stamped the approved sediment control plan.

18 The Remedial Action Plan required the removal and disposal of underground storage tanks from the development site.

19 The locations of the underground storage tanks on the site were identified in a site plan which comprised Figure 2 to the Remedial Action Plan, appearing at page 6 of the Plan. At page 8 of the Plan, New Environment states that “Figure 2 shows that the site has a total of five underground storage tanks (USTs). Of these USTs, only one UST is in use for storing waste oil in the Holden Workshop Area. The other four USTs (three at the Dwyers Mazda car yard and one in the courtyard near the Dwyers Holden spray booth section) have been decommissioned (New Environment 2004a)”. This is confirmed at page 18 of the Plan.

20 During demolition, 21 underground storage tanks were in fact identified and removed. There was no mention in the Remedial Action Plan of any steps to be taken to empty or secure the contents of any underground tank.

21 Section 9.3.6 of the Remedial Action Plan recommended that occupational health and safety risk assessments and safe work method statements be prepared before removal of the tanks commenced. A “Site Safety Management System” and “Environment Management Plan” were prepared by the safety officer of the defendant and checked by the Managing Director of the defendant to address that requirement before the pollution incident. The Site Safety Management System was sent to the Council for approval.

22 None of the reports referred to in [9] above identified a risk of a pollution event being caused by inundation of any part of the site.

23 The defendant had installed sediment controls as required for the stage of the demolition in accordance with the approved demolition plan before the pollution incident occurred.

24 The council conducted an audit of compliance with conditions of consent to be satisfied before the approved development could commence, and was satisfied that all material conditions had been satisfied.

25 The defendant had materials ready on site at the time of the incident to address a minor spill of hazardous materials including absorbent material, straw bales, and a spill kit. Spill procedure information was posted on the walls to be read by workers on site. Rob Hanson and a number of other employees of the defendant had training about dealing with hazardous materials from Hazmat.

26 The site specific Site Safety Management System for the Site addressed spills of hazardous materials.

Demolition works

27 On 1 December 2006 (three months before the pollution incident), the defendant entered into a building contract with WCP covering demolition of buildings and removal of debris. Under clause 13(a) of the building contract, the defendant was to take possession of the Site as necessary to complete that work. The defendant had possession of the Site at the date of the pollution incident.

28 By exchange of emails dated 30 and 31 January 2007, steps were taken towards the engagement of Heggies (New Environment) to carry out the works associated with the remediation of the site as per the Heggies Proposal for the remediation works (referred to at [10] above). Those works included:

(a) removal of hazardous materials;
(b) site inspection and clearance by Heggies;
(c) removal of five underground storage tanks, waste classification and validation; and
(d) test pit excavation works in the Holden Workshop Area.

29 The following persons held positions within the defendant company with respect to the development at the time of the incident:

(a) Anthony Kosseris – general manager;
(b) Rob Hanson – contract administrator and project manager;
(c) Sam Emerzidis – Site manager (with demolition experience);
(d) Stephen Boyle – safety officer.

30 Interactive Services Pty Ltd was engaged as the licensed demolisher engaged for the demolition.

31 The Heggies Proposal observed that the underground storage tank in the Holden Workshop Area was still in use by Dwyers and observed that “No gross contamination/leakage around the tanks is assumed”. No observation as to the potential for leakage or flooding of any UST was made. The proposal included underground storage tank pit water sample collection and analysis. Heggies was also engaged to advise on and prepare appropriate site specific health and safety plans.

32 The Heggies Email of Engagement records that its author, Takeshi Itakura PhD MIEAust CPEng CPSS, Principal Land Contamination at Heggies, had inspected the Holden Workshop Area on 30 January 2007 and recommended that it be barricaded against vandals. The defendant complied with that advice by securing the building against entry and propping heavy items against openings in the building for the four weeks prior to the pollution incident in anticipation of the commencement of works by Heggies and the licensed demolisher.

33 In the days leading up to 27 February 2007, strip-out works had commenced on the Site, but no works at all had been carried out in the Holden Workshop Area. The strip out works involved removal of various valuable items and materials from the building for salvage. A licensed demolition contractor had been appointed by the defendant to supervise demolition of the buildings. By 27 February 2007, approximately six to eight feet of roof panels had been removed during strip-out from the building located in the southeast of the development site on its southern boundary, which was previously used as the Dwyers Mazda service centre (building).

34 That portion of the building was physically separate from the Holden Workshop Area, and did not drain towards it. There were no UTS’s evident in that portion of the building.

Overnight rainfall on 27 February 2007

35 Bureau of Meteorology observations indicate that on 27 February 2007, Wollongong received 69.6 millimetres of rainfall. University of Wollongong rainfall data indicates that same amount of rain fell between 3:00pm on 26 February 2007 and 9:00am on 27 February 2007. Flash flooding was experienced in Wollongong that evening.

Pollution within the development site

36 During that period of rainfall, rain entered the Holden Workshop Area through a faulty box gutter which had overflowed and directed the rainwater into the building rather than outside or into the stormwater drainage system.

37 The building containing the Holden Workshop Area had a series of pitched roof sections parallel to the street, with each draining to a box gutter. The defendant was unaware of any defect in the gutter prior to the pollution incident. There was no advice that predicted a likelihood of water inundation from that gutter in any document in the possession of the defendant (including the reports referred to at [9] above).

38 The council s 149 Certificate indicates that council’s flood hazard/flood assessment maps did not show that the land was flood-prone or likely to be the subject of inundation.

39 The rainwater concentrated by the defective gutter accumulated within the Holden Workshop Area where an underground storage tank was located. Unknown to the defendant, that tank contained oil presumably left over from Dwyers’ occupation of the Site. The rainwater entered a tank or subsurface void underneath the Holden Workshop Area containing oil, causing it to fill with rainwater and to overflow with a mixture of oil and water.

40 There were numerous holes, grates and plates throughout the Holden Workshop Area. The Holden Workshop Area floor was littered with debris from the vandalism.

41 The mixed oil/water substance then filled the workshop area and flowed out of the building in a westerly direction, through hay bales and a sand sock which were in place to contain soil runoff, down the driveway and into the gutter on the northern side of Burelli Street just east of Corrimal Street.

42 The defendant’s site manager, Sam Emerzidis, arrived on site at 6:30am. He noticed the pollution incident at 6:35am.

Pollution of stormwater drainage system

43 From the gutter, the oily substance flowed into the adjacent stormwater drainage inlet pit and then through the stormwater pipes and channels in Burelli Street, Corrimal Street and Bank Street, Wollongong. The substance then discharged from a stormwater outlet approximately 200 metres away into the wetland located at and near the Wollongong Golf Club.

44 The substance was not discovered in any other stormwater pits, nor was any source discovered (other than the underground storage tank in the Holden Workshop Area at the site) which could have contributed to the pollution of the stormwater drainage system. There was no evidence of contamination downstream from the Wollongong Golf Club wetland. In accordance with the drainage plans, the substance ran directly through the stormwater drainage system from the Burelli Street gutter to the wetland, which was accordingly the main area of contamination.

45 The above was further confirmed by fluorescene dye testing carried out by officers employed by the prosecutor during constant steady rainfall on 24 April 2007. Bureau of Meteorology observations indicate that on 24 April 2007, Wollongong received 87.8 millimetres of rainfall. University of Wollongong rainfall data indicates that same amount of rain fell between 3:00pm on 23 April 2007 and 9:00am on 24 April 2007.

Pollution of wetland at Wollongong golf club

46 By shortly after 6:00am on 27 February 2007, the substance that had discharged from the stormwater outlet had spread through the wetland to the first bridge near Bank Street, and the water level was almost level with the top of the bridge. The substance had a petrolic, oily smell and was accessible from the bridge.

47 At approximately 7:30am, a Wollongong fire brigade crew and two Hazmat trucks arrived at the wetland and started working. Within ten minutes of their arrival, the fire brigade and the Hazmat crew had installed oil containment booms into the wetland.

48 By approximately 7:40am, because the water level was so high, the first bridge had acted to stop a lot of the substance which was floating on the top of the water from getting through to the rest of the wetland. However, although a thick layer of the substance was banked up behind the bridge, quantities of the substance had travelled under the bridge into the other sections of the wetland. Additional booms were deployed, including a secondary containment boom on the other side of the bridge.

49 At that time, what appeared to be several large deposits of the substance were seen both on the grass of the golf course and within the wetland. The substance had collected in certain pockets or pools of the wetland. The substance was observed up to a distance of approximately 600 metres from the first bridge of the wetland. At this distance it was not as concentrated as the ponds closest to the stormwater outlet, but there was still a slick on the surface of the water in some parts.

50 All of the plants observed at that time in the affected area of the wetland were covered in the substance. This included grasses and reeds around the edges of the wetland and aquatic water plans within the wetland itself.

51 The honorary horticulturalist for the Wollongong Golf Club, Graeme Cook, took photographs of the above during an inspection undertaken at the time. Michael Rampling, a fire fighter, took photographs later in the day showing the colour of the substance near the stormwater culvert and the containment booms that had been laid within and around the stormwater culvert near the Bank Street entrance.

Clean-up actions at the development site

52 By the time that officers of the NSW Fire Brigade, Department of Environment and Climate Change (DECC) and the prosecutor were arriving at the development site, the substance remained in the stormwater pit and gutter but had been contained by a sausage inserted by the defendant to prevent the substance from further entering the adjacent stormwater pit. A trail of oil remained in the gutter in an easterly direction to the driveway of the development site.

53 Mr Rampling took photographs later in the day of the stormwater pit and the fencing and driveway entrance. Mr Brooke, an environment protection officer employed by the prosecutor, took photographs of the oily substance in the gutter, and of the entrance to the site.

54 Approximately five metres beyond the open gate to the development site, hay bales had been placed in a row parallel to Burelli Street. From the gutter and up to the hay bales the oil that had crossed that area had been cleaned to some degree. The hay bales and other measures that were in place around the perimeter of the site were originally designed for sediment control rather than for oil, but sawdust, geotechnical fabric boom socks and hay bales were used by the defendant to stop the flow of oil.

55 Beyond the hay bales and leading into the building a large quantity of the substance remained collected on the ground. There were three or four workmen spreading sawdust and the defendant had sent workmen to acquire further quantities of sawdust to assist in containing and absorbing the oil. This sawdust-like material was concentrated mainly north of the hay bales. The substance had reached the hay bales, which were acting as a makeshift dam. There were also smaller dams of the sawdust-like material located to the east of the hay bales, in front of the building. The substance led into the building.

56 A large quantity of the substance had pooled inside the building. The substance covered the entire floor area of that part of the building that was visible from standing just outside the entrance of the building.

57 Mr Brooke took photographs of the area looking east towards the building and of the floor inside the building.

58 At different stages of the morning, the defendant’s worker shovelled sawdust-like material and/or sand on the ground inside the development site to further absorb the substance. The material was later removed from the site by the defendant together with asbestos which had previously been packaged and moved from inside the Holden Workshop Area to a safer location within the site. Those materials were taken to an asbestos tip. Mr Rampling took photographs showing the locations and removal of the bundles of asbestos to a safe location within the site.

59 The environmental scientist responsible for the contamination remediation of the site was contacted by the defendant for advice during the day.

60 The defendant arranged for two tanker trucks to assist in clean-up actions at the development site and the wetland. One truck was filled with rainwater extracted from the nearby “Zita’s” development site, and then used to flush the water into the stormwater pit on the northern side of Burelli Street at the frontage of the development site, to flush the stormwater drain before it became contaminated with the substance. The other truck was then used at the wetland to suck up the water from the bunded culvert area where the flushed water and contaminates collected.

61 Late in the morning, the area outside the workshop was pumped out, using one tanker truck. The area inside the workshop was not pumped out until about 3:00pm that afternoon, as preventative measures were in place which stopped any further runoff and the tanker used to perform that pump out was being used for a pump out at the wetland earlier in the day.

62 At around 5:00pm on 27 February 2007, the defendant capped all of the many openings in the floor of the Holden Workshop Area which could be an opening to an underground storage tank with concrete and then put a diversion drain in place to ensure that any subsequent rainfall was diverted away from the tanks. The capping of the tanks was performed as an alternative to instantly removing the tanks, because until the building was demolished there would not be sufficient room for head cranes. Mr Rampling took photographs of the workshop floor area in the afternoon of 27 February 2007, showing some of the concrete caps on the various tank openings.

63 On 28 February 2007 at approximately 11:20am, Mr Brooke and another officer of the prosecutor, Dr Iradj Yassini, attended the development site and observed the following:

(a) the substance had been removed from the entrance to the building and from the floor within the building. The floor had been covered with an absorbent material;
(b) there were a number of oil drums standing adjacent to the southern wall of the building. There was no bunding observable around the drums. Mr Brooke took photographs of the drums. Mr Boyle reports that he had earlier inspected the drums and found them to be empty;
(c) approximately five or six metres north of the drums the absorbent material had been cleared, revealing the concrete floor. In the centre of the clearing was a hole measuring approximately 450 millimetres in diameter. The hole contained some form of liquid. The building had skylights in the roof. Light from the skylights was reflecting off liquid in the tank. The tank was quite full; and
(d) the hole in the concrete floor was located generally in the same location as the underground storage tank in the Holden Workshop Area located on the Remedial Action Plan. Mr Brooke printed a map from the prosecutor’s records which shows the development site and surrounding properties, on which he has indicated the approximate location of the hole.

64 On or about 1 March 2007, Dr Yassini and Mr Brooke attended the development site. A Collex waste tanker truck was on site at the time. By that time the liquid that was observed in the underground tank on 28 February 2007 had been removed.

65 An underground tank from the workshop, which may have been the source of the oil, was pulled out of the ground in or about April 2007, and was later removed from the site in or about May 2007.

Clean-up actions at Wollongong golf club

66 Early on the day of the incident, upon learning of the pollution of the wetland, the defendant contracted with Veolia to send two “super sucker” trucks to be employed at the direction of the Hazmat officers. The first tanker was used to flush the drainage system with fresh water, and both tankers were sent to pump contaminants from the golf course, and then from the Site.

67 The fire brigade officers continued to work at the wetland throughout the day on 27 February 2007, assisted by workmen from the defendant. This included:

(a) laying containment barriers;
(b) scooping the substance from the surface of the pond using long handled tools;
(c) depositing the substance into large red plastic drums;
(d) using high-pressure hoses to force the oil floating on the surface of the water to an area that could be accessed by a tanker located in the driveway of the Golf Club;
(e) after the first tanker truck at the development site had flushed the stormwater drain, using the second truck at the wetland to suck up the flushed water and contaminates from the bunded culvert area; and
(f) laying absorbent matting on the surface of the pond, which absorbed some of the substance.

68 The defendant made several workmen available to assist the fire brigade throughout this process and for days afterwards.

69 Mr Brooke and Mr Rampling took photographs of the wetland and the Hazmat cleanup actions at the Wollongong Golf Club.

70 After attending the development site on 28 February 2007, Dr Yassini and Mr Brooke then attended the wetland. A big brown oily scum was seen on the surface of the water contained in the wetland adjacent to the point of entry of the stormwater drain on the Bank Street frontage. Mr Brooke took photographs of the oily scum. Pools of the substance had collected where the vegetation had reduced the velocity of the water flow.

71 After attending the development site on or about 1 March 2007, Dr Yassini attended the wetland. It was raining at the time. A thin oily layer was seen on the surface of the wetland, which was being washed downstream by the stormwater.

72 The containment booms in the wetland remained in place for the next seven or eight days. Various fire brigade officers inspected the site on a number of occasions during that period to ascertain the effectiveness of the clean-up and the state of the booms.

Final decontamination of the wetland and discovery of dead ducks

73 Mr Rampling returned to the wetland on 7 March 2007 to collect the booms and to supervise final decontamination of the wetland. While there, he discovered a number of dead ducks on the edge of the wetland, between the bridge in front of the club house and the next bridge to the south. Altogether, he collected seven carcasses and put them in a bag for disposal. Mr Brooke attended the wetland at approximately 3:00pm on that day and collected the bag from Mr Rampling.

74 Mr Brooke then emptied the bag onto the ground beside the car park before Mr Rampling and representatives of the defendant who were assisting. Mr Brooke took photographs of the seven ducks. Mr Rampling took photographs of the final decontamination and of the dead ducks. Mr Cook took a photograph of the culvert while the fire brigade officers were collecting the booms and conducting the final decontamination of the wetland.

75 Mr Brooke then found two more dead ducks on the edge of the water, approximately 200 metres along the waterway from the Bank Street frontage. The duck bodies were intact, showing no sign of attack by a predator. He took a photograph of one of the dead ducks, and then took the two ducks to a veterinary practice for an autopsy to determine their cause of death. He has indicated the locations from which he collected the dead ducks on a map.

Harm to other wildlife and to wetland vegetation
Birds

76 On the morning of the incident on 27 February 2007, in and around the area of the first bridge of the wetland Mr Cook observed a family of moorhens, including some young, who were completely covered in oil. Several wood ducks and spoonbills were also covered in oil.

77 Kate Morris, wildlife volunteer and qualified zookeeper, chased as many birds as she could away from the wetland on the day of the incident.

78 Tanya Fisher, trained wildlife volunteer, likewise spent most of that day trying to chase birds away from the wetland so they would not become covered in oil. Chemicals present in oil take away the waterproofing in the birds’ feathers, so they find it difficult to keep warm and they do not fly as well as normal. They also ingest the oil during the process of preening themselves and this can be poisonous.

79 Throughout the course of the day Ms Morris saw what she estimated to be between 50 and 80 birds going down to the wetland to drink. There was really nothing that could be done to protect them. The oil had gone all the way up through the golf course.

80 Despite her efforts and those of the other members of the trained team of WIRES volunteers to chase the birds away, Ms Fisher saw many wood ducks coming into the wetland to drink that day. Many types of birds are visitors to the wetland, meaning that they fly in and out.

81 Ms Fisher saw a white faced heron with oil up his legs very close to the discharge point into the wetland. She tried but was unable to catch him.

82 Ms Fisher also saw a family of moorhens on an island in the wetland. She and the other volunteers were unable to get to them so they did a head count of the chicks so that they could monitor their survival. The chicks were particularly vulnerable because they get cold easily if their mothers are unable to keep them warm. She counted eleven moorhen chicks on that day.

83 On 28 February 2007 Ms Fisher returned to the wetland in the afternoon. She undertook another head count of the moorhen chicks. This time she could only find six.

84 On 1 March 2007 Ms Fisher returned to the wetland once again. She spent the whole day searching for moorhen chicks and went through the whole wetland She could only find one chick. Chicks cannot fly so it is highly unlikely that they left the wetland.

Turtles

85 Prior to the incident Mr Cook had seen a couple of turtles in the wetland at the Bank Street end. He had not seen them previously in the wetland for years. As at the date of his affidavit, he had not seen any turtles in that area since the incident occurred.

86 Between 8:30am and approximately 10:30am Ms Morris observed what she counted to be eight turtles in the wetland. She saw six of them at different times gasping for air and swimming sideways. After a short time of doing this she saw them drop straight down to the bottom of the wetland. This behaviour was different to the behaviour she had witnessed of other turtles in the past. Ms Morris did not see the turtles again.

Vegetation

87 In 2005, the Wollongong Golf Club commenced a significant golf course redevelopment. This incorporated the relocation and expansion of the existing club house, the upgrading of the course and the dedication of land in the south-west corner of the site for a seniors living development.

88 As an integral part of this redevelopment, the existing wetland system was also reconfigured and extended to enhance its capacity, improve its ecological values and complement the new golf course reconfiguration. The wetland system continues to be planted out and maintained by Mr Cook and volunteers.

89 Since May 2006, Mr Cook and the volunteers have planted more than 60,000 plants in and around the wetland system which extends for approximately one kilometre in a north-south direction along the entire length of the golf course between Bank and Ross Streets, Wollongong. Annexed to Mr Cook’s affidavit is a copy of the vegetation management plan of the riparian corridor.

90 The thousands of plants that they have planted in the wetland are endemic to the area. They were grown from seed stock which had been collected from wetlands already on the site and in the nearby catchments including Tom Thumb Lagoon.

Interviews

91 On 18 April 2007 the prosecutor gave notice to the defendant, requiring it to nominate its representative for the purpose of answering questions, under s 203(2) of the POEO Act. On 6 June 2007 the prosecutor received a reply to the notice from the defendant, nominating Anthony Kosseris as its representative for the purpose of answering questions.

92 On 23 May 2007 Craig Paterson (from the DECC) and Mr Brooke interviewed Stephen Boyle (project engineer), Sam Emerzidis (site supervisor) and Rob Hanson (contracts administrator/project manager). On 28 August 2007 Mr Paterson and Mr Brooke interviewed Anthony Kosseris in his capacity as nominated representative (under s 203(2) of the POEO Act) for the defendant and Wollongong City Plaza Pty Ltd. The four interviews were recorded on a triple-deck tape recorder, and the resulting records of interview were entered in the prosecutor’s records.

93 Exhibit RLB-1 contains 37 numbered photographs taken by Mr Brooke between 27 February 2007 and 26 April 2007. Those photographs can be described as follows:

(a) pages 1 to 8 comprise photographs taken at the development site on 27 February 2007, including:
(i) at pages 1 to 2 and 5 to 7, photographs of the oily substance in the gutter outside the development site;
(ii) at page 3, a photograph of the entrance to the site;

(iii) at page 4, a photograph taken from the driveway to the site, looking east towards the building;

(iv) at page 8, a photograph of the floor inside the building;

(b) pages 9 to 22 comprise photographs taken of the wetland and the Hazmat cleanup action at the Wollongong Golf Club on 27 February 2007;
(c) pages 23 and 24 comprise photographs taken at the development site on 28 February 2007 of oil drums standing adjacent to the southern wall of the building (reported by Mr Boyle to have been empty);
(d) pages 25 and 26 comprise photographs taken at the wetland on 28 February 2007 of the oily scum on the surface of the water;
(e) pages 27 to 29 comprise photographs taken on 7 March 2007 of the dead ducks discovered at the wetland;
(f) page 30 comprises a photograph taken of the waste oil tank at Dwyers BMW on 17 April 2007;
(g) page 31 comprises a photograph taken of the drum storage area at Trevor Jordan Motocycles on 26 April 2007;
(h) pages 32 to 37 comprise photographs taken on 24 April 2007 of the carrying out and results of fluorescene dye testing carried out at the development site and the wetland.

94 Exhibit MJR-1 contains 65 numbered photographs taken by Mr Rampling on 27 February 2007 and 7 March 2007. Those photographs can be described as follows:

(a) pages 1 to 9 comprise photographs taken at the wetland on 27 February 2007 showing the colour of the oil substance near the stormwater culvert and the containment booms that had been laid within and around the stormwater culvert near the Bank Street entrance to the Wollongong Golf Club;
(b) pages 10 to 33 comprise photographs taken at the development site on 27 February 2007, including:
(i) at pages 10 to 12, photographs of the stormwater pit and the fencing and driveway entrance to the site;
(ii) at pages 13 to 16 and 19, photographs taken from just outside the entrance to the workshop;
(iii) at pages 17 and 18, photographs showing part of the demolition process on the site in the service bay area, viewed from outside and inside the building respectively;
(iv) at pages 20 to 22, 24 to 26 and 32 to 33, photographs showing the locations and removal of the bundles of asbestos to a safer location within the complex;
(v) at page 23, a photograph of an oil sump which was immediately on the left as Mr Rampling walked into the workshop area;
(vi) at pages 27 to 29, photographs of the openings in the ground;
(vii) at page 30, a photograph of a pit on the opposite side of the workshop area to the oil sump; and
(viii) at page 31, a photograph of a Collex truck that had been used to extract the oil from the floor of the workshop area;
(c) pages 34 to 45 comprise additional photographs taken at the wetland later in the day on 27 February 2007;
(d) pages 46 to 53 comprise photographs taken at the development site on 27 February 2007 of the capping of the openings in the ground including the opening to the underground storage tank from which the pollution incident occurred, and photographs of two other floor pits within the workshop area;
(e) pages 54 and 55 comprise photographs of the final clean-up of the wetland for 27 February 2007;
(f) pages 56 to 65 comprise photographs taken at the wetland on 7 March 2007 of the final decontamination and of the dead ducks.

95 Exhibit SB1 contains a number of photographs taken by Stephen Boyle on or around February 2007. Those photographs can be described as follows:

(a) pages 2-9 are photographs showing vandalism of the property generally, in which the broken up fibrous cement can be seen;
(b) page 10 is a photograph showing the Holden workshop area;
(c) pages 140-144 are photographs of the bunds constructed in operation at the site;
(d) pages 145-147 are photographs showing water drained from the outside area of the site on Burelli Street with sawdust spread over the residue;
(e) page 148 is a photograph of the Veolia supersucker truck;
(f) page 149 is a photograph of the floor once the water was sucked away and a number of tank inspection points;
(g) pages 150-152 are photographs of the smaller holes in the floor with the caps removed and the 400mm shaft;
(h) pages 153-154 are photographs of the outlets on the floor of the Holden workshop area capped with quick set concrete;
(i) pages 155-156 are photographs of the leaking roof drain;
(j) pages 157-158 are photographs of two Belmorgan workmen working at the golf course site;
(k) page 159 is a photograph of residues and rubbish at the golf course site.

Other evidence

96 The circumstances of the offence and the defendant’s response to the incident are further described in the evidence of the following persons, which I have taken into consideration: Anthony Kosseris, the defendant’s general manager; Stephen Boyle, the defendant’s project engineer and safety officer; and Michael Rampling, the station commander of the Hazardous Material Response Unit at the Shellharbour Fire Station.

Finding on source of oil

97 The Remedial Action Plan (referred to in the agreed statement of facts) states that figure 2 shows that the site has a total of five underground storage tanks and that the only one in use for storing waste oil was in the Holden Workshop Area. The location of that storage tank is shown on figure 2 just beneath what is described thereon as a waste water pit. The evidence of Mr Boyle and the agreed facts at [36] – [42] above satisfy me that: (a) the oil that polluted the waters came from the underground tank in that location, and that the mechanism for rainwater entry to the tank was via the waste water pit, which had an oil line leading to the underground tank; (b) the source of the rainwater was a faulty box gutter; (c) the box gutter cracked during the storm on the night preceding the incident and there was no indication of any prior inundation in the Holden Workshop Area.

Objective gravity of the offence

98 The maximum penalty for the commission of an offence against s 120(1) of the POEO Act by a corporation is a fine in the sum $1 million (s 123(a)). The maximum penalty is the expression by parliament of the seriousness of the offence. The maximum penalty was raised from $250,000 to $1 million as from 1 May 2006. Although the increase highlights the objective gravity of the offence as perceived by the community, it does not follow that for every offence committed after the maximum penalty has been increased the increase in penalty will be by the same multiple as the increase in the maximum penalty: Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304 at 312.

Environmental harm

99 A measure of objective gravity is whether there has been any environmental harm and, if so, its seriousness: s 241(1)(a) POEO Act. The pollution incident led to a serious but, it seems, short term impact on the local environment. The impact comprised the degradation of water quality in the wetland, the associated emission of odours associated with hydrocarbons, and direct impact on fauna.

100 There were many birds present in the wetlands at the time of the incident. Between fifty and eighty birds were observed going down to the wetland to drink, and there were some eight turtles in the wetland area affected by the oil pollution. The commission of the offence caused the death of nine wood ducks. Birds of other species were wholly or partly coated with the oil. Oil takes away the waterproofing in birds’ feathers making it difficult for them to keep warm and impeding their capacity to fly. Birds also ingest the oil in the process of preening, which can be poisonous. A number of turtles were observed gasping for air, swimming sideways and dropping straight down to the bottom of the wetland – behaviour which is quite abnormal for turtles.

101 The site was clean by no later than 7 March 2007.

Practical measures

102 A factor which bears on the objective gravity of an offence is the practical measures that may be taken to prevent, control, abate or mitigate the harm to the environment: s 241(1)(b) POEO Act. The prosecutor submits that there were simple practical measures that could and should have been taken by the defendant to prevent oil from escaping from the site: first, checking underground storage tanks, particularly in the Holden Workshop Area, and removing all oil as soon as feasible after taking possession of the site in October 2006; secondly, properly capping the tanks after taking possession of the site.

103 It is not suggested that there were any practical measures which the defendant could or should have taken to prevent the water inundation. However, I accept that if the defendant had checked the underground storage tanks and removed the oil or had capped those tanks, then those practical measures would have prevented the pollution. In that regard the defendant had placed reliance on an oral representation by someone from Dwyers in October 2006 that a third party had emptied the tank. Mr Kosseris’ cross-examination was punctuated by a luncheon adjournment, after which he said that he now recalled that an employee of the defendant had told him that he had actually checked that the tank was empty before the incident. Mr Kosseris had no such recollection when he swore his affidavit, nor when providing answers to questions during an investigation by the council prior to the incident. I do not doubt that he genuinely believed in his recollection, but in the circumstances I do not regard his recollection as sufficiently reliable for the Court to accept.

104 It is common ground that after the incident the defendant acted promptly and properly in responding to it and in complying with directions of regulatory authorities. The defendant has also indicated, and I accept, that it is committed to adopt measures aimed at preventing a similar incident occurring in the future.

Foreseeability of the risk of harm

105 A factor bearing on the objective gravity of the offence is the extent to which the offender could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence: s 241(1)(c) POEO Act.

106 The prosecutor submits that in the period leading up to the commission of the offence the defendant was aware that there were five underground storage tanks on the site and that the only one that had recently been in use was that located in the Holden Workshop Area, the remaining four tanks having been decommissioned. That is so on the evidence.

107 The prosecutor submits that in an abandoned building which had been vandalised and which formed part of a construction site and in which some strip-out works had been carried out, there was a foreseeable risk that any oil located in tanks located on the site could escape the site whether by inundation or otherwise. The evidence indicates that there was ongoing vandalising of this site even in the short period between the departure of Dwyers and the occupation by the defendant, but particularly in the period of some weeks over Christmas when it seems that there was actually a person or persons living on the site.

108 The defendant submits that the incident was either unforeseeable or had a very low foreseeability. The defendant concedes that, if it was foreseeable, the introduction of oil into the stormwater system would be likely to cause harm to the environment. However, the defendant submits that the sequence of events that led to the oil leaving the site was unexpected and substantially unforeseeable. In that regard the defendant directs attention to the following factors.

109 First, the incident was caused by the inundation of underground oil tanks located inside a building that had recently operated as a business and there was no evidence of any significant water leaks in the relevant area prior to this event. Secondly, a council s 149 certificate which the defendant had obtained did not indicate that the land was flood-prone or likely to be the subject of inundation. Thirdly, the defendant had made an inquiry and had been informed that the tanks had been drained. Fourthly, a licensed demolisher had been appointed to the demolition job and a firm of environmental engineers and a site auditor had been engaged, or was in the process of being engaged, to remove the underground storage tanks under a council-approved Remedial Action Plan which had made no mention of an inundation risk. Fifthly, the inundation occurred through the failure of a box gutter but the defendant was unaware of any defect in the gutter and there was no indication of a likelihood of a water inundation from the gutter in any document in the possession of the defendant. Sixthly, the inundation was caused by unexpected rain indicative of overnight flash flooding. Finally, the risk of such a pollution incident had not been remarked on in any report obtained from the defendant’s environmental consultant concerning the site and its remediation.

110 The defendant concedes that a prudent regime of monitoring the site would involve checking whether any known subterranean oil tanks contained oil, that being relevant to risks of ongoing contamination, possibly fire risks and to the demolition which was soon to commence. The defendant disputes, however, that it would logically follow that it was foreseeable that a failure to check the known tank would lead to a flooding incident.

111 In my opinion, it was reasonably foreseeable that if there was inundation then the underground tank could flood causing any oil therein to escape. I earlier commented upon the failure of the defendant to check whether that tank was empty of oil. However, in my opinion, the foreseeability of inundation of this precise nature was very low because, on the evidence, the box gutter failed during the heavy storm on the night preceding the incident and there was no evidence of any previous flooding.

112 Some emphasis was placed by the prosecutor on the email of 30 January 2007 from the defendant’s environmental consultant to the defendant, referred to at [28] above. In the email, the consultant summarised a discussion that morning with an officer of the defendant. The first matter summarised was that the defendant would send the consultant an electronic copy of the confirmation of the consultant’s engagement that day in response to a proposal that the consultant had submitted to the defendant in August 2006. It was noted that the consultant’s services would commence upon reception of the confirmation. The second matter summarised was the identity of the demolition contractor to be engaged by the defendant. The third matter summarised was the consultant’s understanding of the work sequence that had been proposed. The first step in that sequence was the preparation of a technical scope of works report by the consultant. The third step in the sequence was a site inspection and clearance by the consultant. The proposed work sequence then moved on to demolition and removal of the five then known underground storage tanks.

113 The prosecutor’s ultimate submission is that if the defendant had proceeded in accordance with that sequence and in a more timely way, then the preparation of the technical scope of works report by the consultant or the site inspection by the consultant should have revealed the oil in the subject underground tank. That is true. However, in the defendant’s favour, the very next day after receipt of the email of 30 January, the defendant did send the consultant a consultancy services agreement for the remediation of the work confirming the consultant’s engagement on the site and requesting the consultant to sign and return it. The consultant did not do so until March, some time after the incident. The only residual criticism by the prosecutor, I think, is that if the defendant had moved more quickly, and not left it to 30 January 2007 to crystallise the engagement with the consultant, that could and should have led to, at least, disclosure of the fact that the tank had oil in it. There is some substance in that proposition. In circumstances where there was an abandoned building which had been vandalised and which formed part of the construction site, it would have been prudent to get on with that process more quickly.

Control over the causes

114 A factor bearing on the gravity of the offence is the extent to which the offender had control over the causes that gave rise to the offence: s 241(1)(d) POEO Act. The prosecutor concedes that the defendant inherited a difficult site but submits that it nevertheless had control and management of the site and substantial control over the causes of the commission of the offence. The defendant acknowledges that it had ultimate control over the site. However, it submits with, I think, some force that its effective control over the faulty box gutter was limited in the sense that there was nothing to indicate that it was faulty prior to the incident.

Deterrence

115 The prosecutor submits that there is a need for the penalty to serve as a powerful general deterrent. I do not accept that the need for a general deterrent is aptly described as powerful in the circumstances of this case where the foreseeability of the inundation was very low. That is not, however, to negate the proposition that the need for some general deterrence is a consideration.

Prior convictions

116 The defendant has no prior convictions. This is a mitigating factor: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.

Discount for early plea

117 It is common ground that the defendant entered a guilty plea at an early stage and that it is entitled to a full discount of twenty-five per cent for the utilitarian value of the plea: R v Thompson; R v Houlton (2000) 49 NSWLR 383.

118 The defendant makes the following additional submissions in mitigation, which I accept:

(a) the facts disclose an objectively low degree of criminality on the part of the defendant;
(b) the defendant took its safety and risk responsibility seriously in that it prepared environmental management guidelines, employed a dedicated safety officer, sought advice and supervision of professional environmental engineers and engaged a site auditor and a licensed demolition contractor;
(c) the defendant acted promptly to address the impact of the pollution when it was detected;
(d) the defendant gave substantial assistance to the regulatory authorities and incurred costs in that regard. It has continued to cooperate in the running of the case in the sense of coming to an accord in relation to the statement of agreed facts;
(e) the defendant has considered the lessons learnt from the incident and has acted to adopt recommendations.

Consistency of sentencing

119 I have considered the sentences in other cases to which I have been referred. However, I consider that the circumstances of this case are sufficiently different that I do not derive any significant assistance from those cases.

120 In my opinion, taking into account all the circumstances, including a twenty-five percent discount for the early guilty plea, the appropriate fine is $40,000. The orders of the Court will be as follows:

1. The defendant is convicted of the offence as charged;
2. The defendant is fined the sum of $40,000;
3. The defendant is to pay the prosecutor’s costs as agreed or assessed;
4. The exhibits may be returned.