Blacktown City Council v Aland B & W Pty Ltd

Prosecution Submissions

1. The Prosecutor for the council Ms Sinclair submitted that the defendant could have complied with stabilising the site access and soil should not be tracked onto the roadway and then into the stormwater drains. Ms Sinclair further stated that Blacktown City Council is a rapidly developing area and the council comes across these type of building site issues time and time again. Her written sentencing submissions stated that since February 2020, 150 penalty notices of $8000 have been issued by the Prosecutor's officers in respect of non-compliant building sites for either water pollution or failing to comply with a prevention notice. She stated that offences of this type have a huge impact on local waterways. The Prosecutor assessed the criminality in the low to mid range of objective seriousness.

Defendant's Explanation for the Offence and Subjective Circumstances

1. Mr Saleam, for the defendant company, submitted that it was an early plea of guilty. There are no offences of a similar nature and this is out of character. The company cleared up the site on 21 July 2021. He further submitted there was no evidence of environmental damage.
2. Mr Saleam also submitted a Letter of Contrition from Mr Andrew Hrsto, a director of Aland B & W Pty Ltd. His letter expressed remorse on behalf of the company for its failure to observe sediment control measures at the building site. There was consistent and heavy rainfall which hindered the company's ability to maintain sediment control and difficulties arose with obtaining subcontractors to assist them. However, the Court notes that the project manager was advised of sediment control issues by the Council officer on 7 May 2021, no control measures had been taken by 2 and 9 July 2021, but when Mr Goro spoke to Ms Tabrett while she was taking pictures on 9 July 2021, stabilisation of the site and cleaning of the sediment all over the road took place on 21 July 2021.
3. Mr Hrsto's Letter of Contrition goes on to describe his company, of over 100 staff, as a reputable builder that considers protection of the environment to be a priority and will strictly adhere to ongoing compliance. The company accepts full responsibility.
4. Also tendered, was a large number of receipts and invoices for road sweeping at the construction site. The Court has considered these carefully. There were 3 inspection dates of the site by Ms Tabrett of Blacktown City Council; 7 May 2021, 2 July 2021 and 9 July 2021. From the receipts, road sweeping took place on 1,3,4,5,9,12,16,18 and 26 June 2021, and 1,6, and 12 July 2021. The cost of road sweeping on the receipts provided is $480 per service. The receipts further show sediment control procedures took place on 12 April 2021, 5 May 2021, 28 August 2021 and periodically thereafter. The Court has not been given any information on how effective the road sweeping was in removing sediment from the road because photographs 3 and 4 taken 2 July 2021, and photographs 3,5,12 and 13 taken on 9 July 2021 show vehicles parked on both sides of Isla Street which would clearly prevent road sweeping of the entire roadway.

Remarks on Sentence and Penalty

1. What is concerning to the Court is the large amount of sediment seen on Isla Street in the photos taken on 2 and 9 July 2021, notwithstanding that there was road sweeping on 1 and 6 July 2021. Road sweeping appears to at best only mitigate the pollute waters offence and does not address the root cause of the sediment getting on to the road, ie, the unstable access points to and from the building site.
2. The Court regards the pollute waters offences as very serious breaches of the Protection of the Environment Operations Act 1997. There is a large amount of sediment on the roads as seen in the photographs. It is important to the environmental health of Eastern Creek and eventually the Hawkesbury Nepean catchment area that it not be polluted by sediment inadequately managed at building sites in Isla Street Schofields flowing into stormwater drains.
3. The Court also observes from the photographs there appears to be inhabited apartment blocks with facing balconies on the other side of Isla Street to the building site. Residents appear to have had to suffer a large amount of sediment all over Isla Street outside their balconies and on the road on which their vehicles may be parked on 2 and 9 July 2021. It was sufficiently concerning to the residents of the area to complain to the council in May 2021.
4. What is also concerning to the Court is that the project manager was alerted to the issue on 7 May 2021, he said he would, "Get better stabilised access off Isla Street for the trucks" and then sent a text with photos showing the cul-de-sac on Manchester Drive cleaned and temporary fencing installed. However, no stabilised main entry/exit was completed until 21 July 2021, while serious pollute waters offences occurred on 2 and 9 July 2021. All that had occurred was that there had been 10 road sweeping procedures in the 47 days between 1 June 2021 and 12 July 2021.
5. Whilst the submissions of the defence and prosecution are that it is in the low to mid range of offences of this type, taking into account the size of the construction site, the scale of pollute waters as set out in the Facts Sheet and photographs, and the undertaking given by the project manager to better stabilise access which did not occur until after 9 July 2021, the Court assesses the level of offending as very much in the mid range of offending.
6. The Court does not give any significance to the director, Mr Hrsto's letter that there was a period of heavy rainfall hindering them from complying with sediment control. The Court, from its own investigations, looked at the Australian Government Bureau of Meteorology website summarising the weather of Greater Sydney in 2021 which states, "It was very wet in March (2021) with many sites having their wettest March on record with significant flooding on the Hawkesbury River." The company was alerted by the council in May 2021 and did not appear to properly address the issue until 21 July 2021. The Court is critical of this delay.
7. The Court was provided with a table of sentencing decisions for offences against section 120 of the Protection of the Environment Operations Act 1997. The first decision, EPA v Gosford City Council is a 1997 decision, which the Court gives little weight as it is a 1997 decision, so 25 years ago, the section has been repealed and maximum penalties greatly increased. The next decision is EPA v Ravensworth [2012] NSWLEC 222, sediment laden water (approximately 1.64 megalitres) discharged into Bowman's Creek, a tributary of the Hunter River, fine of $50,000. The final 2 cases in the table are 2 Local Court matters where there was Court election of penalty notices, first was Blacktown City Council v Danny Constructions Pty Ltd (Unreported, Local Court of NSW, Robinson LCM, 28 May 2019), the defendant was building a dwelling and silt fencing had been installed but not maintained and rock, sand and soil were in a position where it could get into the adjoining gutter, there was a fine of $7500. The final case submitted was Blacktown City Council v Betacon Constructions Pty Ltd (Unreported, Local Court of NSW, Brown LCM, 24 October 2017) where there were 2 dwellings being constructed, a sediment fence was installed but it had been pulled down and not maintained and council officers observed the contractor using a high pressure hose to clean the site with sediment laden water exiting the site and into a stormwater drain. The Local Court cases are of limited assistance in the current case as they of an entirely different scale and are court elections. The Land and Environment case of Ravensworth is also of a very different factual scenario.
8. The Court has also considered 2 other Local Court decisions published on the Judicial Commission of NSW Judicial Commission JIRS system. The first is EPA v Tomingley Gold Operations Pty Ltd [2015] NSWLC 21. The brief facts are that the mine reported to the EPA that sediment laden waters had overflowed from a dam into a paddock downstream leaving a visual layer of sediment. His Honour Magistrate Stewart imposed a fine of $60,000 on count 1 and a fine of $35,000 on count 2. His Honour also quoted at paragraph 43 an earlier Land and Environment Judgment that, "Care must be taken in essaying the task, as the wide divergence of facts and circumstances leading to the imposition of penalties in a given case for water pollution render guidance from other cases to be of limited utility."
9. The second Local Court case to be considered is Fairfield City Council v Quality Handling Systems Pty Ltd [2013] NSWLC 7. The brief facts were that the defendant company had been washing stainless steel pickling paste, which is hazardous and dangerous and contains nitric and hydrofluoric acid, into a nearby stormwater drain. The company admitted this procedure had been occurring for 18 months. The fine imposed in that case for one count was $75,000.
10. While the facts are different for both these cases to the current case being considered, it does demonstrate that the Local Court will impose substantial fines in appropriate cases.
11. The Court also considers the Purposes of Sentencing as set out in section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), which include; ensuring that the offender is adequately punished for the offence, to prevent offences by deterring the offender and other persons from committing similar offences, to make the offender accountable for their actions, to denounce the conduct and to recognise the harm done to the community.
12. In the Court's view, taking into account the scale of the construction site, the amount of sediment all over the road as shown in the photograph, the council officer alerting the defendant to the issue after a resident's complaint, the delay in addressing the issues after being alerted to them by a council officer, the large amount of sediment on the road which was the pollute waters offence and all the other matters referred to earlier, that an appropriate fine for sequence 1 is $90,000, and for sequence 2 is $100,000.
13. The Court will apply the maximum discount of 25% for the reasons as set out earlier. Therefore, the fine for Sequence 1 is $67,500, and for Sequence 2 is $75,000. Total fines of $142,500.
14. The Court orders that the Defendant company pay the Prosecution legal costs agreed at $12,000. Magistrate van Zuylen Blacktown Local Court

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