Environment Protection Authority v Abigroup Contractors Pty Limited [2007] NSWLEC 712 | Case summary

EX TEMPORE JUDGMENT 1 HIS HONOUR: The defendant, Abigroup Contractors Pty Limited, has been charged with a breach of s 120 of the Protection of the Environment Operations Act 1997 ("the POEO Act") in that on or about 15 February 2006 at or near Yelgun in the state of New South Wales it polluted waters. The pollutant is said to be sediment-laden waters containing soil, clay, earth, mud, stones and/or similar inorganic matter, and/or liquid that contains suspended solids. 2 The waters are a wetland situated adjacent to or within the Billinudgel Nature Reserve at Yelgun in New South Wales. The manner of the breach is that the defendant caused the pollutants to pass through a culvert under the Pacific Highway and adjacent land and that the pollutants then flowed to and entered the waters, and/or were placed in a position where they fell or descended into the waters, or were likely to fall or descend into, or wash or percolate into the waters. 3 The defendant, at an early opportunity, entered a plea of guilty to the charge. The only question before me is that of penalty and consequential orders. The parties have sensibly furnished an agreed statement of facts. The statement of facts is unusually long and complex and I refer only to the more salient facts in that statement. The statement of facts has also been supplemented by an affidavit furnished by Mr Ronald James Yates, who is manager, commercial and projects services for the defendant. 4 The defendant was involved in the construction of a dual carriageway motorway over a length of 8.7 kilometres from Brunswick Heads to Yelgun in northern New South Wales. It holds an authority issued by the Environment Protection Authority (EPA) to carry out the works but under conditions, one condition of which states: The drainage from all areas that will mobilise suspended solids when stormwater runs over these areas must be controlled and diverted through appropriate erosion and sediment control / pollution control measures or structures. 5 On 19 August 1999, the then Minister for Urban Affairs and Planning granted planning approval for the project under Pt 5 of the Environmental Planning and Assessment Act 1979 (the EP&A Act). On 3 February 2005, the Roads and Traffic Authority (RTA) determined to carry out what is called the Yelgun Rest Area, which was assessed by the Roads and Traffic Authority as a separate project under Pt 5 of the EP&A Act. 6 The Billinudgel Nature Reserve is adjacent to the Yelgun Rest Area which is part of the works which the defendant was involved in constructing. A Melaleuca forest wetland covers an area of approximately 200 hectares of flood plain within the nature reserve. The characteristics of the wetland indicate that it may be described as a swamp sclerophyll forest on coastal flood plain. This kind of community has been listed as an endangered community under the Threatened Species Conservation Act 1995 since December 2004. 7 Moreover, the wetland is gazetted under the State Environmental Planning Policy No. 14 - Coastal Wetlands ("SEPP No. 14). That policy aims to ensure the protection and preservation of coastal wetlands in New South Wales by defining as designated development any development that involves clearing, draining or filling wetlands or constructing levees on wetlands. 8 The defendant has developed and implemented an erosion and sediment control regime for the project. The elements of that regime comprise firstly, an overarching soil and water management plan; secondly, an inspection and monitoring regime; thirdly, progressive sediment and erosion control plans which are progressively updated as construction progresses; fourthly, training of relevant personnel on erosion and sediment control measures and fifthly, ongoing special technical advice from a suitably qualified soil conservationist. 9 In addition, an independent environment management representative, Mr Bill Gardyne, has been appointed for the project as required by the planning approval. That appointment was approved by the Director General of the Department of Infrastructure, Planning and Natural Resources (DIPNR), as it was then called. 10 In July 2005, the defendant prepared a document titled "Construction, Soil and Water Management Plan", for the project which was completed and approved by DIPNR prior to commencement of construction. It forms part of the construction and environmental management plan which sets out the framework for environmental management on the project during construction. In preparing the soil and water management plan the defendant consulted the RTA and other relevant regulatory authorities. 11 The soil and water management plan provides for the preparation of progressive sediment and erosion control plans which set out specific erosion and sediment controls to be implemented within a particular construction area. These are to be progressively updated as construction progresses to account for changes in the nature of the works and the physical characteristics of the site. 12 The incident which gave rise to this prosecution occurred in February 2006. February is on average the wettest month - the mean rainfall for February being 230.9 millimetres. The soil and water management plan states: Because of the seasonality of the rainfall, special attention to erosion and sediment control measures will be made during the months of February and March. 13 The soil and water management plan recognises that the project is located in close proximity to SEPP No. 14 wetlands and specifically outlines the environmental controls that are to be taken in relation to wetlands located near the project site. The defendant conducts ongoing site inspections to monitor erosion and sediment control measures. 14 Weekly inspections are typically conducted by representatives of the defendant, together with the soil conservationist. The defendant invites the independent environmental management representative and the RTA to the weekly inspections. The defendant also requires all employees and contractors working on the project to complete site induction, covering environmental management issues. 15 As I have noted, as the project develops day-to-day and week-to-week, it is necessary for the defendant to update and modify the sediment controls which are in place. Throughout the course of the project there were significant practical constraints on the installation of erosion and sediment controls. In relation to the Yelgun Rest Area the following factors were present: (i) the proximity of the existing Pacific Highway which gave rise to traffic safety issues; and (ii) sediment control structures must not impact on native vegetation or threatened species and threatened ecological communities, some of which were known to be between the service road and the Billinudgel Nature Reserve, and (iii) the steepness of the terrain. 16 The defendant asserts that the following additional factors constrained the installation of erosion and sediment controls at the Yelgun Rest Area. First, as a result of the narrowness of the road corridor there was insufficient land to install a large sediment basin, and secondly, there were unusually boggy ground conditions down slope of the rest area, and thirdly the potential for acid sulphate soil issues which meant that sediment collection sump or basin below ground level could not be constructed without great difficulty. 17 The prosecutor on the other hand asserts that these were not factors that constrained the installation of erosion and sediment controls at the Yelgun Rest Area for the following reasons. Firstly, given that there was land available to install the sediment basin between the edge of the earthworks footprint and the project boundary after the incident, there was no reason that a sediment basin could not have been installed prior to 15 February 2006, and secondly, the defendant has the technology and resources to be able to install sediment and erosion controls in wet and boggy conditions. 18 This appears to be the only real dispute of fact between the parties. I am unable to resolve it. It is said by the defendant, for example, that no need for a sedimentation basin had been identified at this location prior to the incident and that seems to be so. I am required to resolve any reasonable doubt in favour of the defendant, and for that reason I accept the defendant's assertion rather than the prosecutor's assertion on this issue. 19 There were a number of site inspections prior to the incident. In the period August 2005 to 19 January 2006 the defendant installed a range of erosion and sediment controls in the vicinity of the Yelgun Rest Area and conducted regular site inspections to monitor the effectiveness of these controls. On 7 October 2005, an inspection was carried out by Mr Mark Sabloch, the defendant's environmental manager, Ms Rebecca Walker-Edwards, the defendant's environmental officer, and Mr Greg Collins, RTA senior environmental officer, during which Mr Collins formed the view that the area needed special attention and was very high risk. 20 On 17 December 2005, a further inspection disclosed dirty water running across the Pacific Highway as sheet flow at the Yelgun Rest Area, and dirty water was observed leaving the site at the northern side of the rest area into the Billinudgel Nature Reserve. 21 January 2006 was a period of heavy and intense rainfall, with 710 millimetres of rainfall being recorded at the project site workshop for that month. This is approximately four times the expected historical average for January. 22 Between 19 and 21 January 2006, over 400 millimetres of rain fell. The January 2006 storm resulted in major flooding in the area and caused extensive damage to the erosion and sediment controls across the entire project site. The January 2006 storm caused sediment laden water to be discharged from the Yelgun Rest Area into the wetland in Billinudgel Nature Reserve. 23 The Department of Environment and Conservation decided to take no regulatory action in relation to this incident as the unusually high rainfall event had caused localised flooding in the area and would have exceeded the capacity of best practice erosion and sediment control measures. Following the January 2006 storm the defendant carried out a risk-based assessment in order to prioritise the works required to rectify damage to the project site. This was done to ensure that areas of the project site posing the highest environmental and safety risks were addressed first. 24 The defendant first addressed any safety issues affecting the travelling public (for example, flooding of roads) and structural safety concerns (for instance, bridge structures, foundations and embankments). There were particular constraints on undertaking repair works at the Yelgun Rest Area after the January storm. The primary constraint was the difficulty in accessing the low-lying area at the base of the service road, which remained soft and boggy for some time. 25 The defendant asserts that prior to the incident on 15 February 2006 it was unable to complete all of the moderate and low risk works to rectify damage to controls caused by the January storm. The prosecutor disputes this. Again, for the reasons previously indicated, in this area of dispute I find in favour of the defendant's version. 26 On 31 January 2006, there was an inspection of the premises by Mr Chris Howarth, the RTA environmental officer, and Mr Gardyne, who I referred to earlier. Both had concerns that the capacity of the sediment and erosion controls at the Yelgun Rest Area needed to be improved. They verbally advised Mr Sabloch and Ms Walker-Edwards of their concerns. Subsequent to that inspection the defendant continued the process of implementing measures specified in the environmental inspection form which had been furnished earlier on 24 January 2006, and in addition the defendant carried out further hydromulching of the Yelgun Rest Area batters. 27 On 3 February 2006, the defendant prepared a revised progressive sediment and erosion control plan for the Yelgun Rest Area in consultation with the soil conservationist. As at 4 February 2006 the defendant had installed extensive erosion and sediment controls in the Yelgun Rest Area. On 4 February 2006, Mr Scott Hunter of the Department of Environment and Climate Change (DECC) inspected and observed a large quantity of sediment within a sediment fence and rock groyne located approximately 25 metres up slope from the boundary fence to the Billinudgel Nature Reserve. In addition, he observed a large quantity of sediment downstream of the rock groyne towards the Billinudgel Nature Reserve boundary. 28 Following the inspection, Mr Hunter and Kelly Roche of the DECC returned to the project office and verbally advised Mr Sabloch and Mr Will MacDonald of their concerns. Following that inspection the defendant continued the process of implementing the measures specified in the progressive sediment and erosion control plan. The defendant also continued to conduct regular site inspections between 4 and 15 February 2006, on some occasions accompanied by the RTA's environmental officer, Mr Chris Howarth. 29 On 8 February 2006, the defendant carried out a further stage of hydromulching at the Yelgun Rest Area batters. On 9 February 2006, an inspection was carried out by Ms Walker-Edwards and Mr David Purdy, the RTA project engineer, during which Mr Purdy observed that the erosion and sediment controls were not preventing sediment from entering waterways at the Yelgun Rest Area. The defendant asserts that the sediment observed by Mr Purdy in any waterways had resulted from the January 2006 storm. 30 Also on the same day Mr Allan Goodwin, Department of Environment and Climate Change ranger, conducted an inspection and observed a thick sediment fan consisting of deposited clay that extended over twenty metres into the melaleuca forest wetland. On 4 February 2006, Ms Walker-Edwards sent an email to Mr Hunter outlining the works that had been undertaken to address the concerns raised by Mr Hunter on 4 February 2006. 31 Between the January 2006 storm and 15 February 2006 the following rainfall events occurred at the site office. Firstly, 16 millimetres on 5 and 6 February 2006, and secondly, up to 38 millimetres over the weekend to 13 February 2006. An inspection was carried out on the morning of 15 February 2006 by Mr Hunter, Ms Roche, Mr Sabloch, Mr Voight, the defendant's earthworks project manager, Mr Purdy, the RTA project engineer, and Mr Collins, RTA's northern region environment centre. The inspection disclosed certain defects in the erosion and sediment controls on that date. The defendant asserts that those conditions were the result of residual damage caused by the January 2006 storm. 32 At approximately 4.10 pm on 15 February 2006, an apparently severe thunderstorm struck the Yelgun Rest Area. As a result, sediment-laden water was observed flowing through an unlined drainage channel and into the melaleuca forest wetland. Sediment-laden water was observed flowing through the geofabric lining in the upper section of the drainage channel and the pipe outlet below the site was discharging large volumes of sediment-laden water through a rock groyne and into the melaleuca forest wetland. Sediment-laden water was observed flowing through the boundary fence of the Billinudgel Nature Reserve and into the melaleuca forest wetland located within the reserve, inundating the forest wetland for a distance of no less than 20 to 30 metres. 33 The defendant took immediate steps to prevent potential environmental harm arising from the incident, firstly, by damming up and redirecting the run-off to stop flow across the road and contain it in a detention area, and secondly, by replacing sandbags and other control measures to ensure run-off was directed into the best flow path to minimise erosion. 34 Following the incident the defendant implemented a number of additional erosional and sediment control measures at and around the Yelgun Rest Area. On 28 February 2006, Mr Sabloch, the defendant's environmental manager, emailed Mr Hunter advising that the defendant was to construct a sediment basin at the Yelgun Rest Area designed to contain an eightieth percentile five-day rainfall event. 35 As I have noted, the defendant asserts that a large sediment basin had not been constructed prior to the incident on 15 February 2006 because of the lack of available land and other practical constraints, and neither had the need for it been identified prior to the incident. I accept the defendant's assertion. 36 The defendant has also, since the incident, implemented a number of practical preventive steps to improve its system. The defendant does not consider that the steps which arose from its system review after the incident would have prevented the incident had they been in place prior to the incident. 37 The defendant maintains its own rain gauge at the site office at the project site. The readings from the gauge suggest that on 15 February 2006 approximately 19.5 millimetres of rain fell over the course of approximately half an hour. Storms of the magnitude of the storm on 15 February 2006 occur relatively frequently in the Yelgun Rest Area, with at least sixteen daily records of more than 20 millimetres at the defendants gauge site between June 2005 and February 2006. 38 It is not known however whether these rainfall events occurred throughout the whole of the day or whether they relate to a single thunderstorm event within half an hour, as occurred on this day. 39 According to Mr Paul Anink, the defendant's expert aquatic ecologist, the erosion and sediment controls in place prior to the January 2006 storm would appear to have been at least sufficient to prevent excessive run-off from a storm of the magnitude of the incident storm reaching and entering the Billinudgel Nature Reserve. He considers that if the measures in place prior to the January storm had remained in place prior to the January 2006 storm and that storm had not occurred, there would most likely not have been sediment deposition into the wetland resulting from the incident. 40 According to Mr Anink, most of the sediment deposited into the wetland occurred as a direct result of the January 2006 storm. He considers that the contribution of the sediment from the incident would have been insignificant in comparison to the January storm and confined to the area already impacted by the January storm. 41 According to the defendant's expert hydrologist, Mr James Ball, the progressive sediment and erosion control plans developed by the defendant were in accordance with the philosophical basis of the environmental control manual, and he concludes that the progressive sediment and erosion control plans prepared by the defendant prior to the January storm would have been adequate for the incident had the January storm not occurred. He concludes that amongst other things: The mass of deposited sediment in the Billinudgel Nature Reserve significantly exceeds the mass that could have been transported during the 15 February 2006 storm event. 42 Dr Kerrilee Rogers conducted an inspection on 10 January 2005 and observed a layer of fine red sediment on the surface of the melaleuca forest wetland adjacent to the Yelgun Rest Area extending to a depth of approximately 15 centimetres. The layer was evident to an approximate distance of 50 metres from the boundary of the Yelgun Rest Area, diminishing towards the interior of the melaleuca forest wetland. 43 Neither Dr Rogers nor a ranger, Mr Goodwin, found evidence of actual environmental harm to the flora and fauna in the wetland as a result of the pollution event. The defendant's expert aquatic ecologist, Mr Anink, considers there would not have been any significant harm to the flora and fauna of the nature reserve arising directly from the incident over and above that arising from the January storm. 44 Mr Anink concludes amongst other things that: The swamp sclerophyll forest vegetation within and surrounding the wetland is healthy and in good condition, and a common ground layer fern… is recolonising the areas buried by the clay sediment deposited by the January 2006 storm. 45 Dr Rogers has stated that based on her experience, if flows of sediment to the wetland of similar magnitude to the clay plumes she had observed on 10 January 2007 continued for the period of the project, the deposition of sediment within the wetland would have implications for the geomorphology, hydrology and vegetation of the site. 46 Mr Anink considers that the likelihood of such potential harm is unlikely for two reasons. Firstly, the observed clay plume was primarily the result of the 1:20 year storm, for which there is an extremely low likelihood of occurrence, and secondly, the possibility that there would be no site stabilisation works and no activities to remediate the erosion and sediment control measures at the area after the subject event is unlikely. 47 I turn now to the evidence of Mr Yates, to which I have referred. As I have said, he is the manager, commercial and projects services for the defendant, Abigroup Contractors Pty Limited which is a subsidiary of the Abigroup Limited group of companies. The Abigroup group employs between 1700 and 1800 employees in Australia and had total revenue for the year ending December 2006 of $1.47 billion. Abigroup Contractors has operations throughout Australia and currently has civil and building projects worth approximately $3.2 billion. It is undertaking and has undertaken various major projects, including major road projects, major water infrastructure works and major buildings. 48 It has developed an integrated environment management system which is audited to ensure that it satisfies the relevant Australian standard. The environment management system is certified by an independent external accredited order. Under the management system procedures manual which it has adopted, all employees are properly inducted prior to commencing work and have their training needs identified. The procedure specifies that training is to be provided on environmental management issues. The manual contains procedures for dealing with internal auditing. 49 The defendant provides quarterly reports to its board. The quarterly reports contain an assessment of the implementation of the environment management system and other management systems such as quality and occupational health and safety systems. 50 In addition, the defendant implements an overall system review of the environmental management system annually to ensure that the material remains current and reflects current industry best practices. Currently the defendant employs ten full-time and one part-time environmental personnel in New South Wales. The defendant is conscious, according to Mr Yates, of its role as a corporate citizen. It supports a variety of groups from local sporting teams to health, education and national research foundations. It is also committed to furthering the engineering profession. It offers a number of scholarships, cadetships and apprenticeships to those entering the civil engineering and building industry. This includes the sponsorship of two full-time environmental engineering scholarships at the University of Newcastle. It has received a number of awards relating to environmental management and other awards relating to excellence in construction. Mr Yates says that the defendant is proud of its environmental reputation, its contribution to the environment and its reputation in the construction industry. 51 I accept that the fact that the defendant regrets and is remorseful of the incident. Its remorse and contrition is reflected by its full cooperation with the prosecutor in all stages of investigation. It has entered a plea of guilty to the charge at the earliest opportunity. It took all reasonable and practical measures to prevent further pollution of waters immediately after it had been made aware of the incident. 52 In turning now to the questions that affect penalty, the primary consideration is the objective gravity of the offence. In considering the objective gravity of the offence the primary indicator is the maximum penalty prescribed by the legislature. At the time of this offence the maximum penalty was $250,000 for a corporation. This is a reflection by the legislature of the seriousness with which it regards offences of this nature. 53 Any sentencing consideration requires a consideration of the purposes of sentencing and these are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. They are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. 54 It is immediately apparent that many of these purposes overlap. I have referred to the objective gravity of the offence. This in turn requires consideration of the circumstances of the offence. I have described the circumstances of the offence in this case. In particular, I have found that the defendant was constrained by the absence of any recognition of any need for a sedimentation basin prior to the incident. I have referred to the difficulty of the constraints of the site and the unusually boggy ground conditions following the January 2006 storm, to which I have referred. 55 There are a number of particular considerations set out under s 241(1) of the POEO Act. The first of those is the harm caused or likely to be caused to the environment by the commission of the offence. The evidence shows that there was no actual harm to the vegetation within and surrounding the wetland, and in this respect I accept the evidence of Mr Anink that the ground fern layer is recolonising the areas buried by the clay sediment. 56 I accept that fact, however, that there was some harm because a large volume of sediment-laden water was discharged into the melaleuca forest wetland. The potential for ongoing environmental harm, however, is also limited, and again I accept Mr Anink's view that it was very remote. 57 I accept the fact that the pollution occurred in a wetland of sufficient significance to be gazetted under SEPP No. 14, which aims to ensure the protection and preservation of coastal wetlands, and that there was here an ecologically endangered community under the Threatened Species Conservation Act. There is, however, as I have noted, no evidence that there was actual harm to the endangered ecological community itself. 58 The next consideration is the practical measures to prevent, control, abate or mitigate that harm. In my view the defendant implemented a comprehensive erosion and sediment control regime in order to prevent, control, abate or mitigate any harm from any rainfall event. 59 The prosecutor submits that the defendant should have acted more quickly following the January 2006 storm to maintain, repair and replace any sediment and erosion controls that were damaged or overtopped by that storm. However, as I have observed, the defendant was working under significant constraints and its efforts were directed firstly to the question of traffic safety considerations and structural safety considerations in the first instance. 60 The defendant was of course also constrained by the proximity of the existing Pacific Highway, which in turn gave rise to traffic safety issues, the steepness of the terrain, and the fact that sediment control structures must not impact on native vegetation or threatened species and threatened ecological communities. 61 I am also mindful of the effect of the January 2006 storm which resulted in major flooding to the area and caused extensive damage to the erosion and sediment controls that had been put in place across the project site. I note that the defendant has taken additional steps since the incident, including action to repair residual damage from the January 2006 storm and which had been previously identified as low or medium risk items. 62 The next consideration is the extent of foreseeability of harm or likely harm caused or likely to be caused to the environment by the commission of the offence. The prosecutor says that the defendant was aware that February 2006 was on average the wettest month of the year in the project area, and the defendant could and should have foreseen that a further rainfall event would occur after the January 2006 event. 63 The evidence of Mr Anink, however, is that little or no further harm was caused to the area the subject of these proceedings by the February 2006 rain event beyond that caused by the January 2006 storm and moreover, had the January 2006 storm not occurred then the pre-existing sediment and erosion controls would have been sufficient to cope with the February 2006 rain event. 64 The next consideration is the extent of control over the causes that gave rise to the offence. I accept the fact that given the extraordinary magnitude of the January storm it is difficult to find that the defendant was wholly responsible for the control over the causes that gave rise to the offence. As I have said, the defendant had in place erosion and sediment controls which would have been sufficient to control any sediment run-off had they not previously been damaged by the January storm event. 65 There are a number of subjective factors that must be considered. I note that the defendant has two prior convictions for water pollution offences. The first of those occurred in 1996 when it was prosecuted for the discharge from a stormwater pit into a creek which ultimately discharged into the Lane Cove River. In that matter there was no evidence of actual harm, although there was some evidence of likely harm. The defendant pleaded guilty and was fined $25,000 and ordered to pay costs. 66 The court took into account the fact that the defendant had no previous offences and at that time the maximum penalty was $125,000. In 2003 the defendant was again prosecuted for an offence to which it pleaded guilty. This was an allegation that the defendant polluted waters by pumping waste water into a position where it descended or was likely to descend into a nearby watercourse which leads to Prospect Creek. Again there was no proven environmental harm, although there was potential for harm. The penalty in that case was $37,500, having regard to the defendant's plea of guilty, together with costs. 67 The defendant has also received a number of penalty infringement notices, first in March 2006, in relation to damage caused to an endangered Davidson's plum tree; another on 7 July 2006 in relation to failure to install appropriate sediment and erosion controls as required by a condition of the environment protection licence; on 29 September 2006, a penalty infringement notice in relation to alleged pollution of waters on the Tugun Bypass upgrade project; and on 14 May 2007 a penalty infringement notice again for failure to install appropriate sediment and erosion controls as required by a condition of the environment protection licence. 68 I am also entitled to take into account the early plea of guilty which was entered at the first opportunity. I am also entitled to take into account that the defendant has cooperated with the prosecutor throughout, has provided documents and information and made staff available for directed records of interview. The defendant also agrees to a publication order and to pay the prosecutor's costs in an agreed some of $30,000. 69 I accept that the commission of this offence was neither intentional nor negligent. Prior to the January storm the defendant had installed and regularly monitored and maintained specific erosion and sediment controls at the Yelgun Rest Area which satisfied the relevant guidelines. As a result of the January storm there was substantial flood damage across the entire project site. The defendant carried out a risk-based assessment to stage the repair works so that the highest risk elements were addressed first. In my opinion, the defendant acted properly in so doing. 70 In my opinion this defendant is unlikely to reoffend and there is no need in this case for any element of specific deterrence. The appropriate penalty in all the circumstances, in particular having regard to the minimal harm to the environment caused by the offence, is in my opinion $32,000. It is appropriate to discount this sum by 35 per cent in consideration of all the mitigating factors, to a rounded figure of $20,000 having regard to the principles explained by the Court of Appeal in R v Thomson; R v Houlton (2000) 49 NSWLR 383. 71 The prosecutor suggests, and the defendant agrees, that rather than impose a fine it is appropriate in this case to order the defendant to pay this sum to a specified environmental organisation for the purposes of a specified project or for general environmental purposes, as allowed by s 251(e) of the POEO Act. Evidence has been provided which shows that the New South Wales Department of Primary Industries has identified two viable rehabilitation options that would improve the aquatic health of the catchment within the Brunswick River estuary. I agree that it is appropriate to make such an order, but I decline to nominate which project the money should be directed to since that department is in a better position to determine which project should have priority. 72 The prosecutor seeks and the defendant agrees that a publication order under s 250(1)(a) of the POEO Act should be made. 73 The formal orders of the Court therefore are:

Environment Protection Authority v Abigroup Contractors Pty Limited

At a glance

Court

Decision date

Before

Source

Judgment (14 paragraphs)

Parties

Cases Cited (1)

Cited By (1)