Environment Protection Authority v Eveston - [2022] NSWLEC 128 - NSWLEC 2022 case summary — Zoe

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Environment Protection Authority v Eveston

[2022] NSWLEC 128

Land and Environment Court (NSW)|2022-10-12|Before: Pepper J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2022-10-12

Before

Pepper J

Catchwords

Cessnock City Council v McCudden (2010) 172 LGERA 52
[2010] NSWLEC 3 Chief Executive Officer of Environment and Heritage v Fish (No 2) (2014) 202 LGERA 188
[2014] NSWLEC 67 Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137
[2008] NSWLEC 280 Environment Protection Authority v Ballina Shire Council (2006) 148 LGERA 278

Source

Original judgment source is linked above.

Catchwords

Cessnock City Council v McCudden (2010) 172 LGERA 52[2010] NSWLEC 3 Chief Executive Officer of Environment and Heritage v Fish (No 2) (2014) 202 LGERA 188[2014] NSWLEC 67 Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137[2008] NSWLEC 280 Environment Protection Authority v Ballina Shire Council (2006) 148 LGERA 278[2006] NSWLEC 419 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242(2006) 145 LGERA 189 Hoare v The Queen (1989) 167 CLR 348[1989] HCA 33 Johnson v The Queen (2004) 78 ALJR 616[2004] HCA 15 Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 Markarian v The Queen (2005) 228 CLR 357[2005] HCA 25 Mill v The Queen (1988) 166 CLR 59[1988] HCA 70 Pearce v The Queen (1998) 194 CLR 610[1998] HCA 57 Plath v Rawson (2009) 170 LGERA 253R v Houlton (2000) 49 NSWLR 383[1988] HCA 14 Walden v Hensler (1987) 163 CLR 561[1987] HCA 54 Water NSW v Barlow (2019) 244 LGERA 1

Judgment (38 paragraphs)

[3]

Christopher Eveston Pleads Guilty to Two Offences of Breaching the Conditions of his Environmental Protection Licence

Christopher Eveston has pleaded guilty to two offences against s 64(1) of the Protection of the Environment Operations Act 1997 ("the POEOA") committed at 2-12 Common Street, Goulburn ("the property"). Eveston has been charged with two breaches of conditions of a Notice of Revocation of Environment Protection Licence no 20036 ("the notice"), as amended on 12 February 2019 by order of the Court, as follows: 1. one count of non-compliance with condition 6 of the notice by failing to ensure that no more than 3,195m3 of waste was on the property as at 21 May 2019 (matter 2020/145596) ("the exceedance offence"); and 2. one count of failing to comply with condition 5 of the notice in that he did not remove all waste from the property by 5pm 21 September 2019 (matter 2020/145597) ("the removal offence").
The summons for the exceedance offence was in the following terms: 1. An order that the defendant, Christopher James Eveston, of 12 Common Street, Goulburn in the State of New South Wales, appear before a judge of the Court to answer the charge that, on or about 21 May 2019, at or near 2-12 Common Street, Goulburn in the State of New South Wales (the Premises), he committed an offence against section 64(1) of the Protection of the Environment Operations Acct 1997, in that he was the former holder of a licence which was revoked subject to conditions, and a condition of which was contravened by a person. Particulars a. Revoked Licence Environment Protection Licence number 20036. b. Notice of Revocation Notice of Revocation of Environment Protection Licence number 20036 - notice number 1557623, as amended on 12 February 2019 by orders of the Court c. Condition of Notice of Revocation Contravened Condition 6 of the Notice of Revocation, which states: "6. There must be no more than 3,195m3 of waste on the Premises after 20 May 2019." d. Manner of breach There was more than 3,195m3 of waste on the Premises after 20 May 2019.
The summons for the removal offence charged: 1. An order that the defendant, Christopher James Eveston, of 12 Common Street, Goulburn in the State of New South Wales, appear before a judge of the Court to answer the charge that, on or about 21 May 2019, at or near 2-12 Common Street, Goulburn in the State of New South Wales (the Premises), he committed an offence against section 64(1) of the Protection of the Environment Operations Acct 1997, in that he was the former holder of a licence which was revoked subject to conditions, and a condition of which was contravened by a person. Particulars a. Revoked Licence Environment Protection Licence number 20036. b. Notice of Revocation Notice of Revocation of Environment Protection Licence number 20036 - notice number 1557623, as amended on 12 February 2019 by orders of the Court c. Condition of Notice of Revocation Contravened Condition 5 of the Notice of Revocation, which states: "5. All waste at the Premises, including the two waste stockpiles identified in the PHL Surveyor's report of 19 November 2018 as Pile 1 and Pile 2 must be removed from the Premises by no later than 5pm on 21 September 2019, being 9 months from the date of issue of this Notice." [original emphasis] d. Manner of breach The defendant failed to remove all the waste at the Premises by 5pm on 21 May 2019.

[5]

Eveston is a Manager at a Waste and Recycling Business

The basal facts were agreed between the parties. Additional facts relating to Eveston's interactions with the Council were contained in his affidavit sworn on 23 September 2021 ("the first Eveston affidavit"). They were not disputed by the Environment Protection Authority ("the EPA") (T71:16-20 and 72:9-10).
The immediate locality of the property includes a mix of commercial and industrial properties, vacant land, a cemetery and residential buildings. The Goulburn Waste Management Centre ("the Goulburn WMC"), managed by the Goulburn Mulwaree Council ("the Council"), is located nearby.
On 21 August 2001 the Council issued development consent 2000/0165/DA ("the consent") approving a waste disposal depot on the property. The consent was subject to condition 39 which provided that: This consent is limited to a period of 12 years from the date of this consent. All site closure works shall be completed within this time period.
On 26 May 2008 an officer of the Council stated in a letter addressed to Benbow Environmental, an environmental consultant engaged by the then landowner of the property, that in relation to condition 39 of the consent: Condition 39 - Council interprets the condition as 12 years from the date of commencement of operation i.e. issue of Occupation Certificate
The property was purchased by Northern Park Pty Ltd ("NPPL") on 7 February 2014, and remains in the ownership of NPPL. Eveston is the sole beneficiary of a trust which holds a 48% shareholding in NPPL. Eveston's father is the sole director of NPPL. Eveston is involved in running the business of NPPL.
At all material times Eveston has held the position of Operations Manager for Common Street Recycling Pty Ltd ("Common Street"), which, until recently, operated a waste recycling and transfer station business at the property.
On 4 September 2013 an officer of the Council said the following in a letter to Eveston: Condition 39 - Time Limit. Note Council's previous advice in a letter dated 26 May 2008 advising the 12 year time limit to commence from the date of operation i.e. Occupation Certificate.
On 29 September 2014 the Council issued a construction certificate in respect of building and stormwater works on the property and on 7 August 2015 it issued an interim occupation certificate for the roofed wheel wash on the property.
It was not a matter of contention that contrary to previous representations to Eveston, the Council formed the view that the consent had expired on 22 August 2013. Thus on 22 January 2018 the Council advised NPPL that: Formed the opinion that the in the absence of the Consent having been modified to extend the time period or a new consent being granted, as of 22 August 2013 (12 years after the original consent as per condition 39), the use of the Land for a waste depot under the EPA Act was unlawful.
In March 2019 NPPL, Common Street and Southern State Waste Recycling Pty Ltd ("SSWR") commenced proceedings in the Supreme Court of New South Wales against the Council seeking damages for losses occasioned by them as a consequence of the representations by the Council as to the duration of the consent ("the Supreme Court proceedings"). Those proceedings were settled on 10 July 2022in favour of the plaintiffs.
In August 2022 the plaintiffs in the Supreme Court proceedings subsequently agreed amongst themselves to use the settlement sum of $850,000 to pay for waste management contractors to remove and dispose of the waste at the property. Shortly thereafter, Eveston (alongside waste removal contractors) commenced removing waste from the property.

[9]

Waste at the Property

Waste is primarily stored at the property in two stockpiles, referred to as "Pile 1" and "Pile 2" (collectively, "the stockpile").
Pile 1 is the smaller of the two waste piles and is located toward the northern boundary of the property. It abuts a brick chimney and is partially located on concrete slabs.
Pile 2 is the larger waste pile and is located in the south-eastern portion of the property. The eastern boundary of Pile 2 abuts a retaining wall along the eastern boundary of the property. Some of Pile 2 is located on concrete slabs. To the southern end and around the western edge this concrete gives way to an earthen base.
The stockpile comprises the following waste materials: 1. building and demolition waste, including PVC and HDPE pipe, steel, timber, rubble, concrete, fencing, electrical wires, treated timber and wood products (plywood, fencing, chipboard and MDF), carpet and underlay, ceramic tiles, corrugated iron, insulation, aluminium, asphaltic concrete and plastics; and 2. miscellaneous items, including chairs, coats, toys, containers, bags, builder's plastic, mattresses, pillows, bricks, garden hoses, cloth, fabric, vacuum cleaners, plastic tarps, Styrofoam, stuffed animals, foam, rubber tyres, hessian bags, irrigation equipment, baby capsules/seats, office furniture, coffee machines, soft plastics and hard plastics.
While the majority of the waste in the stockpile could be characterised as General Solid Waste (non-putrescible), some of the waste comprised Special Waste. It is not possible to determine what proportion of the waste is Special Waste.
The EPA commissioned three aerial volumetric surveys to be undertaken to assess the volume of waste at the property. The results of those volumetric surveys are summarised below:
Eveston did not comply with condition 6 of the notice by 21 May 2019, nor did he comply with condition 5 by 21 September 2019.
The financial surety held by the EPA only covered approximately 20% of the cost of the tipping fee.
At no point between 12 February and 21 September 2019 did Eveston or his lawyers write to the EPA to request an extension of time for compliance with conditions 5 or 6 of the notice. Rather, the first request for an extension of time was made on 11 February 2021.
Eveston deposed that, as of the day of the hearing, approximately 2,300m3 of waste remained stockpiled at the property in Piles 1 and 2 (T39:42-44).

[12]

Statutory Matters Required to be Taken into Account in Sentencing

Subsections 21A (2) and (3) of the CSPA set out aggravating and mitigating factors that the Court must consider). Relevant to the facts of this case are: 21A Aggravating, mitigating and other factors in sentencing (d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences), … (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows- … (d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences), … The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows- … (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), … (k) a plea of guilty by the offender (as provided by section 22), … (m) assistance by the offender to law enforcement authorities (as provided by section 23)…
For offences created by the POEOA, the Court is also required to consider the matters set out in s 241(1) of that Act: 241 Matters to be considered in imposing penalty (1) In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant) - (a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence, (b) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence, (d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence, (e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee, (f) the presence of asbestos in the environment.
The appropriate sentence for Eveston is to be determined by an instinctive synthesis of all the relevant objective and subjective circumstances (Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25).

[14]

Nature of the Offences

The nature and purpose of the statutory provision that has been contravened and its place in the statutory scheme are relevant to the determination of the objective seriousness of the commission of an environmental offence (Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [168]-[172]).
The relevant objects contained in s 3 of the POEOA identify the purpose of creating the offences with which Eveston has been charged: 3 Objects of Act The objects of this Act are as follows - (a) to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development, … (d) to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following - (i) pollution prevention and cleaner production, (ii) the reduction to harmless levels of the discharge of substances likely to cause harm to the environment, (iia) the elimination of harmful wastes, (iii) the reduction in the use of materials and the re-use, recovery or recycling of materials, (iv) the making of progressive environmental improvements, including the reduction of pollution at source, (v) the monitoring and reporting of environmental quality on a regular basis, (e) to rationalise, simplify and strengthen the regulatory framework for environment protection,…
These objects reinforce the protective nature of the statutory framework and the essential role that the regulation of pollution, notably through the promulgation of a licensing regime, plays in achieving those objects (Environment Protection Authority v Bartter Enterprises Pty Ltd (No 4) [2021] NSWLEC 45 at [49]-[51]).
There is a need for strict compliance with the conditions imposed by an EPL. The EPL is the statutory instrument that authorises pollution. It is the price to be paid by polluters for engaging in such activity. As such, failure to observe the conditions of authorisation undermines the achievement of the objects of the POEOA (Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) (2014) 206 LGERA 239; [2014] NSWLEC 103 at [204]).

[17]

The Environmental Harm Occasioned or Likely to be Occasioned by the Commission of the Offences

Section 241(1)(a) of the POEOA requires the Court to take into account the extent of the harm caused, or likely to be caused, to the environment by the commission of the offences. "Harm" is broadly defined in the Dictionary of the POEOA to include: Harm to the environment includes any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution.
The concept of harm in the context of environmental offences extends to both actual and potential harm (Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 at [145]-[149]).
On 6 March 2020 Dr Martens inspected the property for the purpose of forming the opinions contained in the Martens report.
Relying upon the report and affidavit of Dr Martens, the EPA initially submitted that the commission of the exceedance and removal offences occasioned actual and likely environmental harm as follows (see the Martens report): 1. until recently, there was 6,860 m3 waste that remained stockpiled at the property. This was significant. The waste included different materials and had been deposited in such a volume, consistency and manner that it caused changes to the topography of the environment; 2. the waste contained materials that were high in metal content and may have contained hydrocarbons. Therefore the material may have been hazardous. Dr Martens, however, did not sample or undertake a laboratory analysis of the waste in expressing this opinion; 3. the waste altered the hydrological processes and the groundwater at the property. It also modified the chemistry of water leaving the property by surface and groundwater runoff causing an ongoing impact on the surrounding environment; 4. the rain that had fallen on the waste had, and would continue to, dissolve contaminants contained in the stockpile resulting in leachate being generated that had the potential to enter other parts of the property; 5. until removed the waste had the potential to cause harm to human health; and 6. until the waste was removed in its entirety the impact had been ongoing over a substantial period of time.
On 16 July 2021 Martens was requested by the EPA to provide a supplementary expert opinion to assess whether, assuming the composition of the stockpile remained the same, any conclusion could be drawn regarding the nature of the environmental harm occasioned by the ongoing offending conduct.
Dr Martens provided his supplementary expert opinion on 5 August 2021 and concluded that there was "nothing that would alter the opinions" he had "previously expressed" in his report regarding the extent or nature of the environmental harm (the Martens affidavit at [6]).
However, Dr Martens conceded in cross-examination that: 1. by reason of his instructions, there were no temporal limits to his findings and that he had assessed the harm to the environment caused by the existence of the stockpiles in a way that had included harm that had occurred prior to the commission of the offences (T10:33-35); 2. Dr Martens had not established a baseline that had taken into account the property's history as an approved waste management facility in order to compare the state of the environment before and after the commission of the offences; 3. Dr Martens had not been provided with the consent or any approved plans prior to inspecting the property (T11:35-37). He therefore did not have access to information regarding leachate monitoring and management in place at the property prior to preparing his report (T15:23-31); 4. during his inspection, Dr Martens did not inspect the land south to the property that received stormwater and where the swales were located (T12:35-40); and 5. Dr Martens did not make findings in relation to what level of rainfall would cause water to discharge offsite and did not undertake any testing of surface water or groundwater that left the property (T13:14-25 and 17:9-19). Therefore, he could not conclusively determine whether any contaminated water had left the property during (or even after) the commission of the offences (T13:35-14:6 and 21:1-34).
In light of Dr Martens's oral evidence, the EPA agreed that it could no longer submit that Eveston's offending conduct occasioned actual or likely environmental harm. The concession was correctly made.
However, it was nevertheless accepted by the parties that the commission of the exceedance and removal offences occasioned potential environmental harm by reason of the generation of leachate from the waste that remained on the property after May and September 2019, respectively.
In his report, Dr Martens determined that the stockpiles would generate approximately 1.0 ML/year of leachate until the waste was removed from the property. He concluded that: 51. My conclusion is that in its present state, the waste material has caused degradation of the land and is causing actual environmental harm which is not trivial. The harm will be manifest in an on-going and increasing rates of significant leachate production, with that leachate being released to the environment in an untreated and uncontrolled manner, that will degrade the quality of surface and groundwater systems, modify terrestrial ecosystem function and composition, and pollute soils. The harm is not trivial because it will persist in the environment for a period of months to years before a recovery to natural conditions is possibly achieved.
However, Dr Martens's findings regarding leachate must be weighed against the following evidence: 1. there was nothing before the Court indicating that leachate had escaped the property. Any potential environmental harm was therefore limited to the impact of leachate on the property; and 2. Eveston's testimony that there was a leachate management system in place at the property (T45:10-21). However, Eveston accepted that the landfill environmental management plan for the property had not been designed or approved for the management of leachate generated from waste that was retained on the property on a permanent basis (T44:13-27).
I am satisfied beyond reasonable doubt that Eveston's offending conduct occasioned potential environmental harm by the generation of leachate from the waste that remained on the property after May and September 2019.

[23]

Contrition and Remorse

Pursuant to s 21A(3)(i) of the CSPA, remorse is only a mitigating factor if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),
In Waste Recycling Preston J remarked that "contrition and remorse will be more readily shown by the offender taking actions, rather than offering smooth apologies through their legal representatives" (at [203]). His Honour went on to suggest four ways by which an offender may demonstrate genuine contrition and remorse which are relied upon without repetition (at [204], [210], [212] and [214]).
In his first affidavit, Eveston said (at [134]): 134. I was surprised by the EPA's allegation of environmental damage as this was the first time this sort of allegation has been made against me. Although I do not believe environmental damage has occurred, and in the unlikely event that it may somehow have been caused by the waste remaining on the Site after 2019 I sincerely regret that I have not been able to do anything about it until August 2022.
Eveston submitted that his actions demonstrated contrition and remorse insofar as he was actively attempting to make reparations for the commission of the offences by removing the waste from the property (T87:16-18), and that he had commenced doing so as soon as possible after the settlement of the Supreme Court proceedings and the release of the surety held by the EPA.
However, the EPA submitted that given that Eveston initially contested that any environmental harm had been occasioned by his offending conduct and that he had taken no practical measures to reduce the harm caused by the commission of the offences, only limited weight could be attributed to his expression of remorse. Given that only limited potential harm by the commission of the offences has been established by the EPA, Eveston's submission in this regard may be accepted.
However, I am unable to attach full weight to Eveston's expression of sorrow having regard to the fact that: 1. he continued to blame the Council and the EPA for his offending conduct. Eveston's oral evidence was to the effect that his inability to comply with the notice was ultimately because he "worked for [the] company which was robbed from [him] by the Council and their actions" rendering him impecunious (T53:6-9); and 2. he did not demonstrate any insight into the impact of his offending. Notably Eveston has not apologised for his conduct or recognised the unlawfulness of his actions. Rather he has merely expressed regret that he was hindered from removing the waste by the actions of the Council (the first Eveston affidavit).
I therefore place limited weight on this factor in mitigation.

[24]

Early Pleas of Guilty

A guilty plea entered at the earliest available opportunity entitles a defendant to the full 25% discount for the utilitarian value of that early plea (ss 21A(3)(k) and 22 of the CSPA and R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [160]).
The EPA submitted that the value of Eveston's guilty pleas was diminished because the pleas were entered at the third mention for the proceedings after the prosecutor had been put to the expense of putting on all of its evidence (T85:8-10). It further contended that the utilitarian value of Eveston's guilty pleas had been eroded by the way in which he had conducted the sentence proceedings, referencing the delay caused by his vacation of the sentence hearing to allow him the opportunity of filing expert evidence in reply when none in fact was filed (Environment Protection Authority v Eveston (No 2) [2021] NSWLEC 150 and T86:5-9).
By contrast, Eveston contended that he entered his pleas of guilty at the first available opportunity after being served with the entirety of the EPA's evidence and, critically, upon being informed of the quantity of waste on the property. He was therefore entitled to the full discount for the utilitarian value of his plea.
The EPA commenced proceedings on 15 May 2020. There were three mentions of for the proceedings prior to Eveston entering his pleas of guilty on 14 August 2020. He did so upon the first available opportunity after the EPA furnished him with particulars of the changes laid against him.
Pain J vacated the sentence hearing listed on 9 and 10 February 2022 on two bases: first, in order to allow Eveston's counsel, Jeremy Farrell, who had only recently been briefed on a pro bono basis, to prepare the matter (Eveston (No 2) at [2]), and second, to enable Eveston to finalise expert evidence in reply to the Dr Martens report (at [4]).
The hearing dates were vacated to uphold Eveston's right to a fair trial (Eveston (No 2) at [10]-[12]). That Eveston ultimately did not tender expert evidence is irrelevant. Indeed, as it transpired, the decision not to do so was forensically correct because there was ultimately very little contest between the parties in relation to the environmental harm.
In my view, Eveston's conduct did not erode the utilitarian value of his guilty plea (cf Secretary, Department of Planning and Environment v Sell & Parker Pty Ltd [2022] NSWLEC 60 at [401]-[409]). He was, moreover, entitled to wait for particulars concerning the volume of evidence remaining on the property from the EPA before entering his pleas.
Eveston has not acted in a manner that disentitles him to the full discount for the utilitarian value of his guilty pleas and I therefore find that he is entitled to a 25% discount for his early pleas of guilty.

[30]

Consistency in Sentencing

The task of the sentencing court is to seek even-handedness in the imposition of a sentence (R v Oliver (1980) 7 A Crim R 174 at 177 and R v Visconti [1982] 2 NSWLR 104 at 107). Care must be taken in comparing cases where the circumstances of, and facts relating to, the offences may be quite different (Axer at 365).
A clear range of penalties for offences of this type has not been established by past sentencing decisions. The EPA provided to the Court a table of five comparable cases that it submitted could be of assistance in ensuring even-handedness in sentencing. They were: Cessnock City Council v Quintaz Pty Limited; Cessnock City Council v McCudden (2010) 172 LGERA 52; [2010] NSWLEC 3, Environment Protection Authority v Imad Osman-Kerim [2017] NSWLEC 63, Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 4, Environment Protection Authority v Christopher Binos (unreported, Local Court of New South Wales, 11 May 2021) and Environment Protection Authority v Pasminco Cockle Creek Smelter Pty Ltd [2003] NSWLEC 439.
Having considered these cases I accept that there is no directly comparable case or pattern of sentencing for the type of offence the subject of these proceedings. I further accept the submissions of both parties that the Court should exercise caution in considering cases with different factual circumstances and the importance of deciding each case on its own facts (Environment Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90 at [70] and Environment Protection Authority v Borg Panels Pty Ltd [2016] NSWLEC 71 at [45]).
Having made these observations, the Court has had particular regard to Imad Osman-Kerim because it is the decision most comparable to the present proceedings. That case concerned the failure of a defendant to properly contain liquid waste from chemical containers in breach of ss 64(1) and 91(5) of the POEOA. The Court found that the deliberate commission of offences caused significant environmental harm that was reasonably foreseeable (at [70]). Mitigating factors included, the prior good character of the defendant and his expression of remorse and contrition (at [75] and [83]). The Court applied a 15% discount for the utilitarian value of the defendant's early guilty plea and imposed a fine of $51,000 for the s 64(1) offence and $50,00 for each of the two s 91(5) offences. The Court also made a publication order.

[31]

Capacity to Pay a Fine

Section 6 of the Fines Act 1996 provides that: 6 Consideration of accused's means to pay In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider-- (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount.
A defendant's capacity to pay is only a factor of many for the Court to consider when imposing a sentence. In Environment Protection Authority v Hanna [2018] NSWLEC 80 Preston J opined (at [267]): 267 However, whilst the means of an offender to pay any fine is a mandatory consideration, it may not be decisive. Other sentencing considerations, such as achieving general deterrence, may justify imposing a fine in a certain amount, even if the offender is unlikely to be able to pay the fine: Smith v The Queen at 23, 24; Darter v Diden (2006) 94 SASR 505; [2006] SASC 152 at [29]-[32]; Mahdi Jahandideh v R [2014] NSWCA 178 at [15]-[17]. This may particularly be the case in sentencing for offences where general deterrence is needed and where the offender is a corporation rather than a natural person: see Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 at 353; Environment Protection Authority v Emerald Peat Pty Ltd (in liq) [1999] NSWLEC 147; Environment Protection Authority v Douglass (No 2) [2002] NSWLEC 94 at [16]; Bentley v BGP Properties Pty Ltd at [270]-[275].
Eveston submitted he was impecunious and relied upon the following evidence in support of this claim: 1. the notice and the Supreme Court proceedings have had a significant adverse financial impact on him because it has resulted in the waste facility being unable to lawfully operate, thereby removing Eveston's sole source of income. This has resulted in difficulty in removing the waste from the property; 2. he is wholly supported by his wife; 3. he lives in rental accommodation; and 4. he does not have any property or other assets of financial value, nor does he have any savings.
Eveston put before the Court bank account statements from January 2020 - January 2022 that purported to indicate that he did not have any sources of income, relied upon monetary transfers from family members, including his wife, and that he did not have any savings.
Eveston's unequivocal oral evidence was that he was unemployed and received no income (T51:34-48).
Section 6 of the Fines Act places the onus upon Eveston to prove that he is unable to pay any monetary penalty imposed by the Court. To discharge this onus Eveston must provide financial information to the Court that is reasonably and practically available to him that shows that he is impecunious (see Environment Protection Authority v Albiston [2020] NSWLEC 80 at [183]-[184]).
Only limited weight is placed upon Eveston's evidence-in-chief in light of his cross-examination and the documentary evidence before the Court. This is because: 1. Eveston did not adduce any contemporaneous financial records, such as tax returns. This was so notwithstanding an acknowledgment of their existence in his testimony. They were therefore reasonably and practically available to him. Eveston did not provide an explanation to the Court as to their absence in the material that was provided to the Court; 2. Eveston adverted to the existence of at least one additional credit card that he had access to, a SSWR company credit card, which was used by him exclusively for fuel (T55:42-43). Bank statements from that credit card were not furnished to the Court; 3. despite Eveston attesting to being the sole beneficiary of the trust that holds 48% of the shares in NPPL, no financial records of that entity (or any other corporate entity with which he is associated) were provided to the Court; 4. Eveston gave oral evidence that while he had earlier been receiving unemployment benefits, he ceased to be a recipient of Centrelink payments in January 2022. Eveston's explanation for the cessation was that Centrelink had decided, of its own volition notwithstanding that there had been no change to Eveston's financial circumstances, to stop his payments (T52:39-49). The evidence was far from compelling; 5. the bank statements showed a substantial level of discretionary spending on items such as Uber Eats; and 6. the bank statements that he produced to the Court did not extend past January 2022.
I therefore find that Eveston has not discharged his onus of proving that he is unable to pay whatever monetary penalty that the Court is likely to impose. Nevertheless I accept and take into account the adverse consequences that the Council's change of position in respect of the duration of the consent has had on his financial circumstances (R v Rahme (1989) 43 A Crim R 81 at 86-87 and Chief Executive Officer of Environment and Heritage v Fish (No 2) (2014) 202 LGERA 188; [2014] NSWLEC 67 at [42]-[43]).

[37]

Orders

In conformity with the reasons given above, the Court makes the following orders: In proceedings 145596 of 2020 1. Christopher Eveston is convicted of the offence against s 64(1) of the Protection of the Environment Operations Act 1997 as charged; 2. Eveston is fined the sum of $37,500; In proceedings 145597 of 2020 1. Christopher Eveston is convicted of the offence against s 64(1) of the Protection of the Environment Operations Act 1997 as charged; 2. Eveston is fined the sum of $18,000; In proceedings 145596 and 145597 of 2020 1. pursuant to s 122(2) of the Fines Act 1996, 50% of the fine imposed on Eveston is to be paid to the EPA; 2. pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, Eveston must, at his own expense, cause a notice in the form of annexure 'A' to be published within 28 days of the date of this order in The Goulburn Post; a half-page notice within the early general news section; 3. within seven days of the date of the publication referred to in order (6), Eveston must provide the EPA with a complete copy of the page of The Goulburn Post on which the notice appears; 4. pursuant to s 248 of the Protection of the Environment Operations Act 1997, Eveston must pay the EPA's investigation costs of these proceedings fixed in the amount of $22,660; 5. pursuant to ss 257B and 257G of the Criminal Procedure Act 1986, Eveston is to pay the EPA's professional costs of these proceedings as agreed or assessed; and 6. the exhibits are to be returned. Annexure A CHRISTOPHER EVESTON IS CONVICTED OF FAILURING TO REMOVE WASTE FROM PREMISES AT COMMON STREET, GOULBURN AND ORDERED TO PAY $55,500 IN PENALTIES On 28 October 2022 in the Land and Environment Court of New South Wales ("the Court"), Christopher Eveston was convicted of failing to comply with two conditions of a notice issued to him by the Environment Protection Authority ("EPA"). The notice revoked the environment protection licence issued to him in respect of a waste storage facility at 2-12 Common Street, Goulburn NSW ("premises"). The notice required the partial and then full removal of waste stored at the premises by 21 May and 21 September 2019, respectively. Eveston failed to remove the waste from the premises within the required timeframes. In addition to convicting Eveston, the Court made the following orders: (1) Christopher Eveston is fined a total sum of $55,500; (3) pursuant to s 122(2) of the Fines Act 1996, 50% of the fine imposed on Eveston must be paid to the EPA; (4) pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, Eveston must, at his expense, cause this notice to be published; (5) Eveston must provide the EPA with a complete copy of the page of The Goulburn Post on which the notice appears; (6) pursuant to s 248 of the Protection of the Environment Operations Act 1997, Eveston must pay the EPA's investigation costs fixed in the amount of $22,660; and (7) pursuant to ss 257B and 257G of the Criminal Procedure Act 1986, Eveston is to pay the EPA's professional costs of the proceedings in an amount agreed or assessed.

Environment Protection Authority v Eveston

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