Wollongong City Council v Ensile Pty Limited; Wollongong City Council v Hogarth (No 2)

[2008] NSWLEC 146

Land and Environment Court

of New South Wales

CITATION:

Wollongong City Council v Ensile Pty Limited; Wollongong City Council v Hogarth (No 2) [2008] NSWLEC 146

PARTIES:

PROSECUTOR
Wollongong City Council

DEFENDANTS
Ensile Pty Limited &
Robert Martin (aka Bob) Hogarth

FILE NUMBER(S):

50019 of 2007; 50021 of 2007; 50047 of 2007; 50048 of 2007

CORAM:

Jagot J

KEY ISSUES:

Prosecution :- evidence - admissibility - entry onto property without notice - whether authorised - whether evidence improperly or illegally obtained - if not whether desirability of admitting outweighs undesirability of admitting evidence obtained in that way - evidence admitted

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Evidence Act 1995
Protection of the Environment Operations Act 1997

DATES OF HEARING:

15 April 2008

EX TEMPORE JUDGMENT DATE:

15 April 2008

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr C W McEwen SC with Mr Matthew Fraser and Mr Michael Staunton
SOLICITORS
Kells the Lawyers

DEFENDANTS
Mr T F Robertson SC with Mr T G Howard
SOLICITORS
Burrell Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

15 April 2008

50019 of 2007
50047 of 2007

WOLLONGONG CITY COUNCIL
Prosecutor

ENSILE PTY LIMITED
Defendant

50021 of 2007
50048 of 2007

WOLLONGONG CITY COUNCIL
Prosecutor

ROBERT MARTIN (AKA BOB) HOGARTH
Defendant

JUDGMENT

Jagot J:

1 This involves an objection to paragraphs 14 to 21 of the affidavit of Jedda Saffron Lemmon sworn 25 January 2007.

2 The basis of the objection is that the evidence was obtained improperly or in contravention of an Australian law with the consequence that s 138(1) of the Evidence Act 1995 operates so that the evidence is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way in which the evidence was obtained.

3 The contravention or impropriety referred to by the defendants is that before entry onto the property the defendant Mr Hogarth was told that the Council officers had a right of entry and required permission to be given to enter. Accordingly, there was no real consent to enter because in all of the circumstances the Council did not in fact have that right of entry.

4 The rights of entry in dispute relate to those under the Environmental Planning and Assessment Act 1979 (where it is clear that in this particular case there was an obligation to give notice before entry) and those in the Protection of the Environment Operations Act 1997 (which, if engaged, did not require any notice to be given before entry).

5 I accept that Ms Lemmon was an authorised officer under the Protection of the Environment Operations Act. Accordingly, the powers under that Act were available to her (but obviously were to be exercised in accordance with the provisions of that Act).

6 Ms Lemmon gave evidence on the voir dire indicating that she did hold some apprehension of a pollution incident given the nature of the clearing activity which had been reported to her. True it is that once she entered the site and saw the area of the clearing (after about one minute from entering the site from the roadway) she readily dismissed any idea of a pollution incident; but her evidence was that unless and until she saw the clearing for herself she did have a concern about potential pollution of creeks in the general area.

7 In my view it is not strictly necessary to determine whether Ms Lemmon’s state of mind and the objective circumstances gave rise to a reasonable suspicion of a pollution incident within the meaning of the relevant provisions of the Protection of the Environment Operations Act, in particular s 196(1)(b) and s 111 with s 91.

8 I have determined that in all the circumstances the desirability of admitting this evidence outweighs the undesirability of admitting this evidence obtained in this way and my reasons are as follows.

9 First, whether or not the provisions of the Protection of the Environment Operations Act were satisfied there was some basis for Council officers believing that they had a right to enter this property at this time without notice. I do not accept that I should draw an inference that references to the Protection of the Environment Operations Act by Ms Lemmon in her evidence constitute any form of recent invention. The circumstances are explicable in a manner consistent with her evidence. For example, that she did not refer to the Protection of the Environment Operations Act in her affidavit is explicable by reason of the fact that she readily dismissed that Act as irrelevant as soon as she had seen the clearing and the affidavit was prepared much later in time.

10 In these circumstances the inference I draw is that any impropriety or contravention (which I am assuming for the purposes of exercising the discretion under s 138) was unintended and not wilful.

11 Secondly, later events confirm the unintentional nature of any contravention or impropriety. This is because the subsequent inspection in July was the subject of a notice of entry under the Environmental Planning and Assessment Act. This is consistent with Ms Lemmon’s evidence that once she had seen the clearing she dismissed the Protection of the Environment Operations Act. In other words, the Council officers knew that the second entry was only for the purpose of the Environmental Planning and Assessment Act under which notice was required. This suggests that the earlier entry was not part of some course of conduct in defiance of a person’s rights to prevent a trespass to their property.

12 Thirdly, there was nothing underhanded about the Council’s entry. The defendant was present and was aware of the entry and in fact accompanied the Council officers during the inspection.

13 Fourthly, the charge is a serious one. The allegation is the clearing or partial clearing of some 2.2 hectares of land.

14 Fifthly, the entry was onto a large rural property and did not involve the Council officers in entering a building such as a home. Accordingly, if there was impropriety or contravention I am satisfied it was not at the most serious end of the scale.

15 This conclusion does not involve the Court in condoning what would otherwise be a trespass (putting aside the Protection of the Environment Operations Act source of authority). It is merely to recognise that when this matter is viewed realistically, the entry in April (if not supported by the Protection of the Environment Operations Act) was made on the basis of, at worst, a mistaken belief that it was lawful. The entry was effected in an open manner with the defendant’s full knowledge even if not with his informed consent, and involved entry onto open areas of a large property rather than into the privacy of someone’s own home.

16 In these circumstances the defendants’ reference to the International Covenant on Civil and Political Rights (which is specifically referred to in s 138(3)(f) of the Evidence Act) has to be weighed in the overall context.

17 When I do weigh this matter in the overall context I am satisfied that the evidence is of potentially high probative value in circumstances where the entry was made to observe whether clearing was being carried out and various observations were recorded about the nature and extent of the clearing. Therefore the evidence is also potentially important.

18 It is true that the Council officers could have avoided any issue or suggestion in this matter of impropriety or contravention of the law by the simple mechanism of either giving notice or, if they really thought the matter was urgent, obtaining an authority from the general manager under s 118C(3)(c) of the Environmental Planning and Assessment Act. I accept that it is important that these powers of entry be exercised consistent with the law and with care, and that any doubt in the officer’s mind about their powers should ideally have been resolved in favour of a cautionary approach and strict compliance. However these factors cut both ways. They confirm that the entry could have been achieved in compliance with the Environmental Planning and Assessment Act either on the same day or shortly thereafter suggesting that the impropriety, such as it was, was unintentional.

19 Weighing up these factors as referred to in s 138(3) I am satisfied that, if this entry was not supported by the Protection of the Environment Operations Act, then nevertheless the desirability of admitting this evidence outweighs the undesirability of admitting evidence that has been obtained in the way this particular evidence was obtained.

20 Accordingly, I am prepared to admit the evidence under s 138(1).

****************************