Environment Protection Authority v Allan Andrew Keogh

LEGISLATION CITED: Supreme Court Rules 1970 Environmental Offences and Penalties Act 1989, s 14(1)

DATES OF HEARING: 02/04/1999; 02/05/1999; 04/06/1999; 04/09/1999; 04/19/1999

DATE OF JUDGMENT DELIVERY: 06/08/1999

PROSECUTOR Mrs J Kelly (Barrister)

SOLICITORS Environment Protection Authority LEGAL REPRESENTATIVES: DEFENDANT Mr N S Williamson (Barrister) (for part)

SOLICITORS Reimer Winter The Lawyers

The prosecution charges that Allan Andrew Keogh ("the defendant") disobeyed Order 4(3) of this Court made on 21 September 1998 ("the Orders") which restrained the defendant from doing the following:- "(3) Not unlawfully deposit, place or otherwise dispose of any further waste on the property." The Orders resulted from a prosecution instituted against the defendant pursuant to s 14(1) of the Environmental Offences and Penalties Act 1989. The Statement of Charge alleges:- The Defendant is in contempt of the Court's orders of 21 September 1998 by failing to comply with Order 3 (3) in that he has unlawfully deposited, placed or otherwise disposed of waste on the property known as and situate at 34-60 Bradley Street, Orchard Hills.

The defendant was present in court upon the making of the orders and consented thereto. In accordance with the principle in United Telephone Corporation v Dale (1884) 25 Ch. D 778, the defendant had notice of the orders from this date. Part 6 Rule 1 of the Land and Environment Court Rules apply the Supreme Court Rules Part 42 Rule 8(6). Pursuant thereto personal service of the court's order was not required.

The Orders related to premises known as Lot 2 Bradley St (otherwise known as 34-60 Bradley St) Orchard Hills ("the site"). The site is owned by a company Mint Holdings Pty Limited ("the lessor") which has leased a portion thereof to the defendant. Upon such lands the defendant has conducted the business of a road haulier and is the sole director according to his evidence, of a company known as Nepean Haulage Contractors Pty Limited ("the company"). A site office comprising a demountable shed has been erected on the property. For some years the defendant has illegally transformed the site into a waste dump of old car bodies, baled plastic, old motor car tyres, demolition waste and apparently refuse from the photographs tendered in evidence. The landform is sloping and three levels have been created for the purpose of the dump. The top level appears to have been occupied essentially by the demountable site office. Old motor car bodies, bricks and similar debris were located on the middle level and tyres, plastic and other rubbish were on the lowest level in close proximity to a dam.

At 5.45 pm on 22 September 1998, namely the day after the Orders were made Mr Kenneth Ralph Hardy, an officer of the Environment Protection Authority inspected the site. He observed large stockpiles of used bricks, demolition waste, waste asphalt and a huge pile of soil. He testified that the stockpiles were "far in excess of waste" which had been observed on the site during his prior visit on 2 September 1998. In conversations with the defendant, Mr Hardy was informed that some of the bricks were to be sold, and others used to create a roadway to lower levels of the site to enable access for the removal of dumped tyres and plastic which was to be completed by 31 March 1999 in accordance with the Orders of 21 September 1998.

Mr Hardy has visited the site on many occasions since 1994. On his more recent visits prior to 22 September 1998 he had usually been accompanied by a surveyor. He said that on no occasion before that date did he see any bricks or rubble in piles or otherwise on the lowest level of the premises, other than a quantity of bricks in an area known as the hard stand area.

A survey which was tendered in evidence shows that the tyre dump lies outside the boundaries of the land which is the subject of the lease. It has been deposited on other land owned by the lessor without its permission. On his visit on 6 October 1998, Mr Hardy observed that two hard stand areas had been completed at the site and a roadway had been completed allowing access to the area where the tyres were stored. On this occasion he observed there was more waste on site than on any of his previous visits.

On 30 October 1998 Mr Hardy again returned to the land and observed that a large amount of additional waste in the form of used bricks, timber and demolition waste had been placed on the site in addition to the material that had previously been observed by him on his earlier visits. Photographs were taken on such visits. The photographs show a substantial amount of additional bricks and rubble when compared to photographs taken on earlier dates. Mr Hardy also prepared a sketch plan which demonstrates an increase in such waste material on the site, compared to its condition in September 1998. Mr Hardy ascertained that approximately 80 semi-trailer loads of soil had been transported from a demolition site in Buckland Street Chippendale, in trucks operated by the defendant between September 1998 and October 1998.

Ms Bee Hong Leo, the secretary of the lessor testified that the site was visited on many occasions by her since the purchase of the land by the company in May 1994. On 24 September 1998, she visited the site with a director of that company, Mr Lim. Ms Bee Hong Leo observed the construction of the roadway to the lower level. She saw piles of demolition waste including bricks, soil sand and concrete which she had not seen on her previous visits. On 20 November 1998 a further inspection was made by her. She observed that there were more piles of broken brown bricks and dirt in a long row or wall about one metre in height and about 30 metres in length. It was arranged around the perimeter of the area in which there had previously been much smaller piles of material. She had not seen a number of compressed car bodies on her previous visits.

Mr Kim Sing Lim, a director of the lessor inspected the site on 24 September 1998 and observed large stockpiles of bricks, demolition material and material of the same description as observed by the company secretary. On this visit Mr Lim saw a person known as Richard at the site. Mr Lim asked him what was happening and he was informed that a road was being constructed down to a dam to allow truck access to remove the tyres. Mr Lim returned to the site on 20 November 1998. He observed that there more piles of bricks and demolition waste arranged in a long row.

Photographs were tendered in evidence which were taken on 22 September 1998 and 6 October 1998. It is obvious from such photographs that piles of bricks, rubble, soil, and other waste have increased substantially between the two dates.

The defendant denies that any waste, including bricks, demolition material, soil, car bodies or any other material has been brought to the site since 21 September 1998. He explained that the altered appearance of the site has arisen solely in consequence of a re-arrangement of waste on the site. He testified that the pile of bricks photographed on 22 September 1998 was altered and relocated, and about one third of the "hard stand" area on the lowest level had been removed, and bricks forming part of it were carried up and added to the pile on the middle level. He also testified that a car body, not previously observed by Ms Bee Hong Leo had been on the site before 21 September 1998 and was compressed on the site.

Whilst the defendant was emphatic in such denials the defendant's answers were inconsistent. When asked subsequently during the course of the hearing whether any additional material had been brought onto the site since the 21 September 1998 he said:- Well, as I said I might have control of it [the site] but I do have trucks going in and out and there's quite a number of trucks I don't see everything that goes in and out but to my knowledge I don't believe anything - no, nothing. 13. In his oral evidence the defendant originally explained that the bricks on site were being used to make roadway down to the lowest level and on the hard stand to enable removal of the car tyres. Subsequently the defendant said that the presence on the upper of bricks and demolition waste resulted from the recovery for sale of approximately one-third of the hard stand area. Such explanation was in view of the inconsistency, a nonsense. No tyres or baled plastic have been removed from the site yet the defendant's sworn purpose for the creation of the road and hard stand was to enable such undertaking.

No evidence was called to corroborate the evidence of the defendant. When questioned concerning the destination of the estimated 80 loads of soil from the demolition site at Chippendale the defendant said that it had been delivered to a farm at Agnes Banks owned by a person known as "Farmer Jim". The defendant, when giving this evidence, could not recall the name of this person. "Farmer Jim" was not called in evidence, nor was any employee of the company which was controlled by the defendant.

The defendant's testimony was totally unreliable. This conclusion can readily be drawn from the answers provided by him which he later conceded were totally false. At one stage during the course of the evidence an inconsistency emerged and I asked the question as follows:- Q. So may we take it then that the whole of the evidence you gave about the one-third of the hard stand area being remove and uplifted was wrong? A. Incorrect, totally.

The defendant in his sworn evidence given in February 1999 emphatically denied that he had brought onto the property bricks, asphalt, concrete, clay sludge, sandstone to the land after the date of the Orders. He subsequently said that nothing had been brought onto the land " to his recollection ". However in a letter written by the defendant to the court and admitted into evidence on 9 April 1999, he stated:- To the best of my knowledge nothing went on to the property after the 31st [sic] September 1998. Neither Ken Hardy nor myself would really have an accurate idea how much material is on the property, the only real way is to do a quantity survey, before and after the dumping to accurately asses[sic] the site.

Such letter is typical of the obfuscation indulged in by the defendant throughout the conduct of these proceedings and further undermines the credibility of any part of his evidence. There was no attempt by him to explain the invoices of his company which reveal that between the 22 September 1998 and 3 October 1998 its trucks transported more than 120 loads of clay, soil and other fill from the Chippendale site. Upon the evidence I am satisfied that this material was deposited on the land in breach of the Orders and that the version given by the defendant concerning the source of the soil, asphalt, broken concrete and bricks is a fabrication.

The prosecutor, to succeed in its charge must prove that the defendant brought waste or other material as described to the site after 21 September 1998. Such proof must be to the criminal standard of proof; Witham v Holloway (1995) 183 CLR 525 at 550.

I am satisfied beyond doubt that the defendant did, in breach of the Orders permit additional material to be brought to the premises after the 21 September 1998.

The conduct of the defendant demonstrates his total disregard for the law. Not only is the defendant guilty of the contempt of court with which he is charged. He has also been contemptuous of the conduct in this hearing. That has been displayed by his deliberate refusal to comply to the subpoena which required him to produce documents at court. The documents called for by the prosecution were held in the defendant's possession but they were not produced. When invited to provide an explanation for his failure to produce them at court the defendant simply said:- I have no excuse. 21. This is a separate contempt, for which the defendant will be punished. It strikes at the very heart of the administration of justice that a citizen seeks to place himself in deliberate defiance of the law as has been done in this case.

22. Throughout the proceedings the defendant showed a marked lack of respect for the court. This gave rise to the issue of a warrant for the arrest of the defendant who subsequently claimed that he confused the hearing dates. I do not accept this explanation. Further, during the course of the trial the defendant caused disruption to the hearing by arriving late at court and being granted several adjournments. Finally, there is clear evidence that the defendant deliberately attempted to evade service of the notice of motion upon him which instituted these proceedings.

23. The defendant was represented for the greater part of the hearing. During an interval in his representation the defendant attempted to tender an affidavit of a former employee. The hearing was specifically adjourned to ensure the defendant was given an opportunity to adduce such evidence. It was made clear to the defendant that the deponent would be required to attend cross-examination at 10 am on the adjourned hearing day. Despite the latitude given to the defendant the witness did not materialise and the affidavit evidence of the potential witness was rejected. There was no attempt subsequently by his legal advisers to re-open the hearing. The defendant later stated that such witness was not for the court, but for "moral support".

24. The environmental damage which has been done to the area has been graphically displayed in the photographs tendered in evidence and in video tapes. The site has obviously been rural land which gently slopes down to a lagoon which is surrounded by trees and reeds. In its natural setting the bushland was, prior to the creation of the dump, an area of natural beauty. It has been converted by the defendant into an unsightly waste dump. Such dumping is illegal. It is puzzling how such extensive environmental damage could have been carried on over several years without the intervention of the local council. The owners of the land have on numerous occasions demanded that the defendant cease his illegal activities, but to no avail. The defendant is clearly a person who has no regard for the interests of the community, nor respect for the law.

1. In respect of the defendants failure to comply with the production of documents in answer to the subpoena issued by the prosecution the defendant is judged guilty. In respect of this offence the defendant is fined the sum of $5000. In default of payment of such fine within 28 days the defendant is to be imprisoned for a period of 50 days.
2. In respect of the breach of the Orders of 21 September 1998 the defendant is judged guilty in contempt of court as charged.
3. The defendant has deliberately defied the Orders of this Court. This is a serious matter. It is also of serious concern that the dumping has continued. The pre-sentence report indicates some concern of the practicality of imposing a heavy fine upon the defendant. The restoration of the site is of itself of the utmost importance. In these circumstances, the court is concerned to ensure that all debris and other rubbish brought to the site in defiance of the Orders since 21 September 1998 is promptly removed. For this purpose, the court will defer imposing any sentence for a period of two months from this date to afford an opportunity to the defendant to clear the site. The court will be guided by evidence from the prosecution to establish whether the Orders have been fulfilled. If the site is cleared by this date it will be taken into consideration in the assessment of the penalty. Accordingly the court orders the determination of sentence be deferred until Monday 9 August 1999.

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