Environment Protection Authority v Collex Pty Ltd - [2002] NSWLEC 196 - NSWLEC 1988 case summary — Zoe

NSWNSWLEC

Environment Protection Authority v Collex Pty Ltd

[2002] NSWLEC 196

Land and Environment Court (NSW)|1988-04-28|Before: Pain J, Stein J, Hemmings J, Bignold J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

1988-04-28

Before

Pain J, Stein J, Hemmings J, Bignold J

Source

Original judgment source is linked above.

Judgment (61 paragraphs)

[1]

Introduction 1 The Defendant has pleaded guilty to a charge of polluting waters under s 120(1) of the Protection of the Environment Operations Act 1997 (PEO Act). The summons charges the Defendant with the pollution of waters at or near Riverstone, NSW on or about 29 March 2001. The waters the subject of the offence is a pond located inside the Defendant's property at 127 Burfitt Road, Schofields. The pond is described in the summons as a pond by the side of Neville Road, Riverstone, near the intersection with Carnavaron Road Riverstone (the Pond).

[2]

2 Section 120(1) of the PEO Act provides that: "A person who pollutes any waters is guilty of an offence". The Defendant admits all the elements of the offence by pleading guilty. Section 123(a) of the PEO Act provides that the maximum penalty for an offence of pollution of waters by a corporation is $250,000. THE FACTS 3 The parties filed a voluminous Agreed Statement of Facts of 19 pages, which is summarized in the following paragraphs. It is necessary to set out the facts in some detail, as while there was agreement on the elements of the offence committed, there were differences on matters relevant to sentencing, namely whether there was likely to be harm to the environment, whether the harm/likely harm was foreseeable and whether practical measures may have been taken to prevent, control, abate or mitigate that harm. The Defendant's operations 4 The Defendant conducts a waste management business with operations (including landfills and depots) in all Australian States and New Zealand and through its parent company, Vivendi Environnement, in over 70 countries.

[15]

25 In her affidavit sworn 15 April 2002 Ms Doherty discusses the results of the water testing of the samples taken on 29 and 30 March 2001 and the issue of harm to the environment. Analysis of samples 26 The samples taken on 29 March 2001 (the date of the incident) contained high concentrations of nutrients, chemical oxygen demand (COD), biological oxygen demand (BOD), electrical conductivity (EC) and some metals in comparison to national water quality guidelines. The samples taken on the 30 March 2001 had reduced levels of nutrients, COD and EC, but still exceeded the national water quality guidelines for certain substances. Total suspended solids, turbidity and some metal concentrations had increased. Samples taken on 30 March 2001 in Eastern Creek upstream and downstream of the point of discharge of the unnamed channel into Eastern Creek showed little difference in pollutant levels, with the exception of ammonia which was higher downstream than upstream. Assessment of environmental harm 27 Ms Doherty concludes in relation to the samples taken on 29 March 2001 that the high concentrations of nutrients, especially ammonia, posed potentially serious threats of environmental harm. Although there were no samples taken in Eastern Creek on that day she concludes that "if substantial quantities of a discharge of this nature reached Eastern Creek it would have potentially acute toxic and lethal effects on most aquatic organisms unless substantial dilution or sorption occurred." It would also have cumulatively increased the nutrient load of Eastern Creek, potentially leading to excessive algae and aquatic plant growth. Similar conclusions were drawn in relation to samples taken on 30 March 2001: In my opinion, the ammonia concentrations in the discharge of 30 March 2001 derived from the Riverstone Waste Disposal site would have added to the cumulative nitrogen load of the receiving water system and had the potential to contribute to eutrophication of Eastern Creek thus increasing the possibility of excessive growth of nuisance algae and aquatic plants and resulting in the deterioration of ecosystem health of Eastern Creek.

[16]

28 In relation to the samples taken in Eastern Creek on 30 March 2001, Ms Wicks concludes from the fact that there was little difference in concentrations of the samples up and downstream that the "environmental effects of such a discharge were limited to 100 metres downstream of the discharge entry point or were reduced or not detected due to the processes of dispersion, sorption and decay". Ms Wicks stated that as Eastern Creek is already a degraded system, its water quality should, at the least, be maintained. The Defendant's evidence of environmental harm 29 The Defendant relied on a report prepared for it by Mr Paul Anink, dated August 2002 and entitled "Contaminated Seepage Water Discharge to Stormwater Detention Pond, Riverstone Aquatic Ecological Impacts", in relation to environmental harm. Assessment of environmental harm 30 Mr Anink states (at 7 - 9) that there is no evidence to show that there was any aquatic plant or animal life in the Pond, Channel 2 or the unnamed channel. None were reported or observed during the March 2001 inspections by the EPA officers. This was also confirmed by Mr Anink's own inspections in August 2002. Furthermore, those bodies had little or no capacity for significant water storage, such that they could not support any significant aquatic plant or animal life. Consistently with this conclusion, there was no evidence of any harmed aquatic flora or fauna, which leads to the conclusion that there was "no significant effect on actual water quality or aquatic ecology" in the Pond, Channel 2 and the unnamed channel (at 25). Furthermore, although the water discharged was itself significantly polluted, as there was no indication of a significant aquatic community in the Pond, Channel 2 and the unnamed channel, there was no actual impact on aquatic biota in the Pond and said Channels, nor was there "potential for a pulse disturbance on aquatic biota" (at 26) (Mr Anink defines a pulse disturbance as "an acute, short-term episode of disturbance, which may cause a temporary response in a population". Essentially it is the lowest in magnitude of the three types of disturbances he identifies).

[32]

50 In relation to the judgment of Cowdroy J in Great Southern Energy relied on by the Prosecutor, the Defendant argued that if his Honour was proposing the test put forward by the Prosecutor, then his Honour was clearly incorrect. However, the Defendant argues that all his Honour meant was that the Court is entitled to take into account the extent of harm proven to be likely to have been caused by the commission of the offence. This is consistent with the decision of Bignold J in Environmental Protection Authority v Collex Pty Ltd (2001) 115 LGERA 337 where it was held that in relation to proving harm or likely harm, which is an aggravating circumstance, the Prosecutor bears the onus of proof to the standard of beyond reasonable doubt. Finding on likely harm to the environment 51 The Defendant has pleaded guilty to water pollution of the Pond on its property. The summons was amended before the hearing to remove reference to "and downstream thereof". Furthermore, the Prosecutor has not pleaded or argued its case on the basis that the pollution was placed in a position where it was likely to fall, descend, be washed, blown or percolate into Eastern Creek (as is contemplated by the definition of "water pollution or pollution of waters" in the dictionary to the PEO Act). On penalty however the Prosecutor is seeking to argue that there was potential for the pollution to reach Eastern Creek along the unnamed channel, with consequential harm to the environment of Eastern Creek. 52 Section 241(1)(a) states that the Court must consider the extent of the harm caused or likely to be caused to the environment by the commission of the offence. In this case the offence was the pollution of waters, the waters in question being the Pond. The evidence shows that the leachate which flowed into the Pond was toxic to aquatic flora and fauna so that there was clearly likelihood of harm in the sense of a real, not remote, possibility of harm to the environment of the Pond. 53 The Prosecutor also presented evidence that toxic liquid was seen for some 10 metres along the unnamed channel which leads from the Pond towards Eastern Creek. The Prosecutor sought to argue that there was also a likelihood of harm to Eastern Creek as a result of the commission of the offence because the Pond drained along the unnamed channel to Eastern Creek.

[33]

54 Applying s 241(1)(a), I consider the Prosecution has to show firstly, that there was a likelihood, which means "a real chance or possibility", (State Pollution Control Commission v Kelly (Hemmings J, NSWLEC, 21 June 1991, unreported)), that the toxic liquid in the Pond would have got to Eastern Creek and that secondly, if it was likely to get there that the environment is likely to be harmed. 55 In relation to the first issue, I do not think the evidence discloses such a likelihood if the real, not remote, test is applied. In this case, the Prosecutor accepted that there was no evidence that the Pollutant reached the Creek, although it argued it was likely that it had reached the Creek. In the circumstances of this case I cannot be satisfied beyond reasonable doubt that any pollutant reached the Creek or was likely to reach it. There was no evidence to show that the pollutants had reached the Creek, either by sampling or observation on the day of the incident, and there was no evidence as to the actual flow rate of the pollutant in the unnamed channel and how far it went along that channel. There is therefore no issue of likely harm to Eastern Creek to consider. 56 In relation to the reliance of the Prosecutor on Great Southern Energy it seems to me the decision of Cowdroy J should not be interpreted as the Prosecutor submits. If the cases which Cowdroy J refers to, namely Dyer v Borg & Anor (Stein J, NSWLEC, 5 September 1989, unreported) (judgment on penalty) and Environment Protection Authority v Pioneer Road Services Pty Ltd (1995) 86 LGERA 52 (see also Dyer v Borg & Anor (Stein J, NSWLEC, 28 April 1988, unreported) (judgment on guilt)), are considered those decisions do not support a submission that the Court was entitled to speculate on a possible consequence of an offence under s 16 of the Clean Waters Act where no actual overflow of water had occurred and no actual damage was caused and there was no evidence of the likelihood of this occurring. In both cases there was some evidence that pollution did or was likely to flow to the relevant environment. Cowdroy J's decision is not explicit on this matter but I think should be interpreted on this basis, which does not support the Prosecutor's contention. (b) the practical measures that may be taken to prevent, control, abate or mitigate that harm The Prosecutor's submissions 57 The Prosecution relied on the statement of Mahoney JA in Axer Pty Ltd v Environment Protection Authority (2001) 113 LGERA 357 at 359 where his Honour stated: The legislation does not seek merely to prevent deliberate or negligent pollution. It envisages that, at least in many cases, proper precautions must be taken to ensure that pollution does not occur. Experience has shown that it is not enough merely to take care: accidents will happen. The legislation envisages that in many cases care must be supplemented by positive precautions; business must be arranged and precautions taken so as to ensure that pollution will not occur.

Parties

Applicant/Plaintiff:

Environment Protection Authority

Respondent/Defendant:

Collex Pty Ltd

Cases Cited (12)

CITATION : Environment Protection Authority v Collex Pty Ltd [2002] NSWLEC 196 PROSECUTOR Environment Protection Authority PARTIES : DEFENDANT Collex Pty Ltd (ACN 051 316 584) FILE NUMBER(S) : 50026 of 2002 CORAM: Pain J KEY ISSUES: Prosecution :- plea of guilty - pollution of waters - penalty - whether the Court can consider likely harm to a creek in the absence of evidence that the pollutant reached the creek - whether s 257 of the Protection of the Environment Operations Act 1997 creates a duty not to allow polluted water to escape from premises and enter other waters - matters in mitigation of penalty LEGISLATION CITED: Clean Waters Act 1970 s 16 Protection of the Environment Operations Act 1997 s 120(1), s 123(a), s 241, s 257 Axer Pty Ltd v Environment Protection Authority (2001) 113 LGERA 357; Cameron v The Queen (2002) 76 ALJR 382; Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; Dyer v Borg & Anor (Stein J, NSWLEC, 28 April 1988, unreported); Dyer v Borg & Anor (Stein J, NSWLEC, 5 September 1989, unreported); Environmental Protection Authority v Collex Pty Ltd (2001) 115 LGERA 337; Environment Protection Authority v Great Southern Energy (1999) 110 LGERA 254; CASES CITED: Environment Protection Authority v Pioneer Road Services Pty Ltd (1995) 86 LGERA 52; Environment Protection Authority v Rail Infrastructure Corporation (2002) 119 LGERA 409; Hoare v The Queen (1989) 167 CLR 348; R v Ireland (1987) 49 NTR 10; R v Sharma (2002) 54 NSWLR 300; R v Thomson; R v Houlton [2000] NSWCA 309; State Pollution Control Commission v Kelly (Hemmings J, NSWLEC, 21 June 1991, unreported); State Pollution Control Commission v White Wings Limited (Bignold J, NSWLEC, 1 November 1991, unreported); Veen v The Queen [No. 2] (1988) 164 CLR 465 DATES OF HEARING: 02/09/2002 DATE OF JUDGMENT: 11/22/2002

(2001) 113 LGERA 357

(2002) 76 ALJR 382

(1993) 32 NSWLR 683

(2001) 115 LGERA 337

(1999) 110 LGERA 254

(1995) 86 LGERA 52

(2002) 119 LGERA 409

(1989) 167 CLR 348

(2002) 54 NSWLR 300

(1988) 164 CLR 465

[2000] NSWCA 309

Cited By (1)

Environment Protection Authority v Australian Waste Recyclers 1 Pty Ltd