Environment Protection Authority v Eveston

Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [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 253; [2009] NSWLEC 178 R v Dodd (1991) 57 A Crim R 349 R v Nichols (1991) 57 A Crim R 391 R v Oliver (1980) 7 A Crim R 174 R v Rahme (1989) 43 A Crim R 81 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Visconti [1982] 2 NSWLR 104 Secretary, Department of Planning and Environment v Sell & Parker Pty Ltd [2022] NSWLEC 60 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Walden v Hensler (1987) 163 CLR 561; [1987] HCA 54 Water NSW v Barlow (2019) 244 LGERA 1; [2019] NSWLEC 30 Category: Sentence Parties: Environment Protection Authority (Prosecutor) Christopher James Eveston (Defendant) Representation: Counsel: T Epstein (Prosecutor) J Farrell (Defendant)

Solicitors: Environment Protection Authority (Prosecutor) N/A (Defendant) File Number(s): 2020/145596 2020/145597 Publication restriction: Nil

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

1. 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").
2. 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.
3. 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.

The Legislative Regime Creating the Offences

1. Section 78 of the POEOA relevantly sets out the power to suspend or revoke an environment protection licence ("EPL"). Section 81 of that Act provides that the suspension or revocation of an EPL may be subject to conditions: 81 Conditions of suspension, revocation or surrender (1) A licence may be suspended or revoked, or the surrender of a licence may be approved, unconditionally or subject to such conditions as the appropriate regulatory authority imposes. (2) Those conditions may include (but are not limited to) any conditions to which the licence was subject immediately before it was suspended, revoked or surrendered. (3) The appropriate regulatory authority may, by notice in writing given to the former holder of the licence, attach new conditions to, or vary or revoke any existing conditions of, the suspension, revocation or surrender of the licence.
2. Section 64(1) of the POEOA creates an offence of failing to comply with a condition of a licence: 64 Failure to comply with condition (1) Offence If any condition of a licence is contravened by any person, each holder of the licence is guilty of an offence. Maximum penalty - (a) in the case of a corporation - $1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or (b) in the case of an individual - $250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.

Eveston is a Manager at a Waste and Recycling Business

1. 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).
2. 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.
3. 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.
4. 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
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.

The EPL

1. On 12 July 2012 an EPL was issued to Goulburn Holding Group conditionally authorising the scheduled activities under the POEOA of "waste storage" and "waste disposal" at the property ("the scheduled activities").
2. Eveston has held the EPL since 16 May 2014.
3. Following receipt of a financial surity from Eveston in the sum of $250,000, on 15 January 2016, the EPA permitted the scheduled activities at the property in accordance with the EPL.
4. On 28 January 2018 the Council advised the EPA that the Council considered that Eveston did not hold a current development consent for the scheduled activities on the property. As a consequence, on 26 April 2018 the EPA revoked the EPL by issuing Notice of Revocation no 1557623 ("the original revocation notice"). The original revocation notice required the removal of all waste at the property by 18 October 2018.
5. Prior to the revocation of the EPL, the scheduled activities authorised by the EPL were being undertaken at the property. However, following the revocation, the waste stored at the property remained on it.

The Amended Revocation Notice

1. On 21 May 2018 Eveston commenced proceedings appealing the original revocation notice in Class 1 of the Court's jurisdiction ("the 2018 Class 1 proceedings").
2. In December 2018 the Council resolved to reduce the tipping fee that would be charged for the disposal of the waste from the property at the Goulburn WMC from $224 to $184 per tonne for a period of nine months. The Goulburn WMC was the only facility in the local area that could lawfully receive the waste from the property and had the capacity to do so.
3. On 21 December 2018 Eveston and the EPA entered an agreement regarding amendments to be made to the original revocation notice pursuant to s 34(3) of the Land and Environment Court Act 1979. On 12 February 2019 the Court made orders in the 2018 Class 1 proceedings reflecting this agreement. These orders relevantly included: (2) The Notice of Revocation of Licence No. 20036 (bearing notice number 1557623) (Revocation) is amended as shown in Attachment 1. … (6) The dates at paragraphs 5 and 6 of the conditions of revocation in Attachment 1 may be extended by the EPA in the following circumstances: (a) extenuating circumstances beyond the control of the [Eveston] which prevent removal of waste for more than 7 consecutive days where the [Eveston] provides written evidence of the extenuating circumstances to the EPA within 2 weeks of the [Eveston] becoming aware of the relevant circumstances; or (b) where the [Eveston] can demonstrate that he has used his best reasonable endeavours to dispose of the waste by the times specified in this Notice but has not, acting reasonably, been able to meet that timeframe. (7) Any extensions of time granted by the EPA under (6) are not to exceed 3 months calculated on a cumulative basis.

The Financial Impact Upon Eveston

1. It was not in dispute that the Council altered its position in respect of the expiration of the consent. The change in position had the following adverse impacts on Eveston (as explained in the first Eveston affidavit and in his oral evidence): 1. first, the period within which Common Street could lawfully undertake the scheduled activities on the property was retrospectively reduced from 12 years to three years. This was contrary to Common Street and NPPL's intentions to continue to operate a waste facility at the property until August 2027; 2. second, the expiry of the consent and revocation of the EPL had an immediate and significant financial effect on Eveston, Common Street and NPPL insofar as they could no longer operate a waste facility at the property and generate income from this activity; 3. third, all options other than the Goulburn WMC were prohibitively expensive to remove and dispose of the waste located on the property; 4. fourth, the Council's late change on tipping fee charges in May 2019 and the refusal of the EPA to apply Eveston's security bond monies to the Council pursuant to the orders made on 12 February 2019 (in separate proceedings before the Court) meant that Eveston could not even afford to process the waste at Goulburn WMC; and 5. fifth, it was only after the Supreme Court proceedings were settled in favor of Common Street and NPPL, that Eveston had access to adequate funds to remove the waste from the property. This occurred after the present Class 5 litigation was commenced.

Waste at the Property

1. Waste is primarily stored at the property in two stockpiles, referred to as "Pile 1" and "Pile 2" (collectively, "the stockpile").
2. 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.
3. 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.
4. 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.
5. 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.
6. 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:
7. 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.
8. The financial surety held by the EPA only covered approximately 20% of the cost of the tipping fee.
9. 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.
10. 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).

The Evidence Relied Upon by the Parties

1. The EPA relied upon the following affidavits: 1. Janine Goodwin, Unit Head South East Region of the EPA, affirmed on 8 May 2020; 2. Dr Daniel Martens, sworn on 19 June 2020, annexing his expert report titled Investigation of Waste at 2-12 Common Street, Goulburn, NSW of the same date ("the Martens report"). A second Martens affidavit was sworn on 5 August 2021 ("the Martens affidavit"); and 3. Emma Rooney, solicitor for the EPA, affirmed on 20 September 2022 ("the Rooney affidavit").
2. Eveston read the following affidavits: 1. the first Eveston affidavit; 2. a second Eveston affidavit sworn on 23 September 2021 ("the second Eveston affidavit"); and 3. a third Eveston affidavit sworn on 29 September 2022 ("the third Eveston affidavit").

The Purposes of Sentencing

1. The purposes of sentencing are sets out in s 3A of the Crimes (Sentencing Procedure) Act 1999 ("CSPA") as follows: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender 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.

Statutory Matters Required to be Taken into Account in Sentencing

1. 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)…
2. 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.
3. 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).

Objective Seriousness of the Offences

1. The objective gravity of the offences fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit insofar as the sentence must not exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances (Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 and Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 at 354). It fixes the lower limit because allowance for the subjective factors of the case ought not produce a sentence which fails to reflect the objective gravity or seriousness of the offence (R v Dodd (1991) 57 A Crim R 349 at 354 and R v Nichols (1991) 57 A Crim R 391 at 395).
2. The objective gravity of the offence is to be judged by two principal components, first, the acts or omissions of the offender, and second, the consequences of those acts or omissions (Environment Protection Authority v Baiada Poultry Pty Ltd (2008) 163 LGERA 71; [2008] NSWLEC 280 at [22]).

Nature of the Offences

1. 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]).
2. 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,…
3. 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]).
4. 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]).

Maximum Penalty

1. The maximum penalty provided for an offence indicates the seriousness with which Parliament views the commission of the offence (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359 and Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698).
2. Eveston is charged with two breaches of s 64(1) of the POEOA that each carry a maximum penalty of $250,000 in the case of an individual.

Eveston's State of Mind at the Time of the Commission of the Offences

1. The offences are crimes of strict liability which means that mens rea is not an element of the offence. However, the state of mind of Eveston at the time of their commission is nevertheless relevant in the determination of an appropriate sentence (s 241(1) of the POEOA and Environment Protection Authority v Maules Creek Coal Pty Ltd [2022] NSWLEC 33 at [153]). A strict liability offence that is committed intentionally, negligently, or recklessly, will be objectively more serious than one committed accidentally (Camilleri's Stock Feeds at 700A-700E, Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [123] and Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [42]).
2. Having said this, the EPA did not make submissions in respect of Eveston's state of mind during the commission of the offences and there is no evidence that Eveston committed the offences with any particular state of mind (T72:5-6).
3. The Court therefore makes no findings as to Eveston's state of mind as at the commission of the offences.

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

1. 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.
2. 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]).
3. On 6 March 2020 Dr Martens inspected the property for the purpose of forming the opinions contained in the Martens report.
4. 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.
5. 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.
6. 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]).
7. 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).
8. 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.
9. 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.
10. 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.
11. 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).
12. 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.

Reasonable Foreseeability of the Harm Caused or Likely to be Caused to the Environment by the Commission of the Offences

1. Section 241(1)(c) of the POEOA obliges the Court to have regard to the extent to which the offender could reasonably have foreseen the harm caused, or likely to be caused, to the environment.
2. Eveston agreed to the inclusion of the two conditions in the notice. He was therefore aware of the possibility of potential environmental harm caused from non-compliance with those conditions.

Control over the Causes of the Commission of the Offences

1. Section 241(1)(d) of the POEOA requires the Court to take into account the extent to which the person who committed the offence had control over the causes that gave rise to it.
2. By operation of s 258(2) of the POEOA Eveston is deemed to be the occupier of the property as the holder of the EPL. Accordingly, he had control over the waste that remained on it. In other words, he had control over the causes of the commission of the offences.
3. However, Eveston argued that there were several aspects of the commission of the offences that were not within his control, namely, that: 1. the Council had altered its position as to when the consent would expire leading to the premature closure of the waste facility at the property and his inability to pay for the removal of the waste; 2. there was a significant cost associated with the removal of the waste, that Eveston was unable to meet because of his parlous financial position; and 3. there were delays in settling the Supreme Court proceedings which meant that Eveston did not have access to settlement monies to fund the removal of the waste until after the Class 5 proceedings had been commenced.
4. I accept that Eveston suffered financial difficulties due to the Council's misleading conduct with respect to the expiration of the consent. This must be weighed against the fact that Eveston could have, but chose not to, seek a further time extension for compliance with conditions 5 and 6 of the notice.
5. While I have taken into account the matters raised by Eveston, I nevertheless find that at all times Eveston was in control of the causes of the commission of the offences.

Practical Measures That Could Have Been Taken to Prevent or Mitigate the Environmental Harm

1. Eveston contended that he could not have taken any practical measures to prevent or mitigate the harm occasioned by the commission of the offences (s 241(1)(b) of the POEOA) because he was not in a financial position to do so, and moreover, that the consent would not have authorised any other activities to mitigate environmental harm (for example, the building of a bund to contain all leachate on the property).
2. Eveston's oral evidence was to the effect that he agreed to the notice because he "didn't feel like [he] had a choice" despite being concerned that he would not be able to comply with it due to his financial insecurity (T50:28-37 and 42-43). Nonetheless, Eveston acknowledged in cross-examination that (T51:9-16): Q: Now at no point did you contact the EPA pursuant to that order and ask for time for you to remove the waste to be extended did you? A: I did not, but I'm not sure if my solicitors at the time did. Q: Well I'll ask you to confine your answer to matters within your knowledge. You are not aware of any attempts being made to contact the EPA to extend that time are you? A: I did not contact the EPA.
3. Despite Eveston's asserted impecuniosity, there were practical measures he could have taken to reduce the environmental harm occasioned by his offending conduct, namely: 1. he could have negotiated further amendments to conditions 5 and 6 in the notice permitting him further time to comply with the conditions. He did not do so; and 2. he could have covered the stockpile to reduce the generation of leachate occasioned by rain (T94:5).
4. These measures could and ought to have been taken.

Conclusion on the Objective Seriousness of the Offending Conduct

1. Considering all of the objective circumstances of the commission of the offences, I consider that the exceedance and removal offences are of low objective seriousness.

Subjective Circumstances of Eveston

1. A proportionate sentence requires the Court to take into account any mitigating factors that are personal to Eveston (s 21A(3) of the CSPA). The relevant subjective circumstances are considered below.

Contrition and Remorse

1. 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),
2. 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]).
3. 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.
4. 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.
5. 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.
6. 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).
7. I therefore place limited weight on this factor in mitigation.

Early Pleas of Guilty

1. 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]).
2. 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).
3. 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.
4. 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.
5. 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]).
6. 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.
7. 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.
8. 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.

Assistance to the EPA

1. Eveston provided assistance to the NRAR in the investigation and prosecution of the offences (ss 21A(3)(m) and 23 of the CSPA) and by participating in the preparation of an agreed statement of facts. I take this factor in mitigation into account.

Prior Conviction of Eveston

1. On 5 November 2014 Eveston was convicted of an offence against s 169(1) of the POEOA as an occupier of land for using that land as a waste facility without lawful authority. He was fined $6,000 by the Local Court. I have taken this into account as a factor in aggravation (s 21A(3)(e) of the CSPA).

The Good Character of Eveston and the Likelihood He Will Reoffend

1. Despite a prior conviction, I find that Eveston is nonetheless of good character (s 21A(3)(f) of the CSPA).
2. I also find the likelihood that Eveston will reoffend to be low, but not totally negligible, and moreover, that his prospects of rehabilitation are good (s 21A(3)(g) and (h) of the CSPA).

Deterrence, Denunciation and Retribution

1. The Court is required to take into account both specific and general deterrence (Walden v Hensler (1987) 163 CLR 561; [1987] HCA 54 at 569-570 per Brennan J).
2. The penalty imposed by the Court must serve as a general deterrent (Axer at 359; Camilleri's Stock Feeds at 701 and Bentley at [139]. See also s 3A(b) of the CSPA). In Environment Protection Authority v Ballina Shire Council (2006) 148 LGERA 278; [2006] NSWLEC 289 Preston J discussed general deterrence in the context of sentencing for environmental crime (at [66]-[68]). Those principles are applied here without repetition.
3. The Court accepts that embedded in the determination of the appropriate sentence to be imposed on Eveston is an element of general deterrence in order to ensure that holders of EPLs comply with the conditions attached to those licences when undertaking waste management activities.
4. In relation to specific deterrence (s 3A(b) of the CSPA), the EPA submitted that because Eveston continues to operate in the waste industry, has a prior conviction relating to waste management and was the director of a company that has also been convicted of a waste offence (namely, Citlight Environment Pty Ltd), this justifies the need for specific deterrence.
5. I agree. Eveston has now committed three environmental offences. He remains the manager of recycling operations for Common Street and continues to be involved in the waste industry. The penalty imposed upon Eveston must serve to ensure that the activities carried out by him are in compliance with the terms of any EPL that he holds.
6. Finally, the Court must impose a sentence that achieves the purposes of denouncing the conduct the subject of the offences and making Eveston accountable for his actions.

The Totality Principle

1. The totality principle is a relevant consideration when determining an aggregate penalty in sentencing for multiple offences (Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 at 62 -63, Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [40], Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15 at [18] and Water NSW v Barlow (2019) 244 LGERA 1; [2019] NSWLEC 30 at [111]-[112]).
2. Because there are multiple offences arising out of the same, common or related conduct, the totality principle applies. The effect of the totality principle is to require the Court to review the totality of the sentence to consider whether the penalty imposed is just and appropriate and whether it reflects the overall criminality of the offender before the Court.
3. Care must nevertheless be taken "to ensure that any adjustment of individual sentences does not cause the aggregate sentence not to reflect the total criminality of the offender's conduct or the sentence for any individual offence to become disproportionate to the objective gravity of that offence" (Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 at [222] and Gittany Constructions at [199] and [201).

Consistency in Sentencing

1. 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).
2. 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.
3. 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]).
4. 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.

Capacity to Pay a Fine

1. 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.
2. 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].
3. 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.
4. 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.
5. Eveston's unequivocal oral evidence was that he was unemployed and received no income (T51:34-48).
6. 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]).
7. 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.
8. 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]).

Costs

1. The EPA sought an order for its professional costs pursuant to s 215(1)(a) of the Criminal Procedure Act 1986, as agreed or assessed under ss 257B and 257G of that Act. The EPA also sought, under s 248 of the POEOA, an order for the reimbursement of investigation costs fixed in the sum of $22,660 (see the Rooney affidavit). Eveston did not cavil with the payment of the EPA's costs (T103:36-43).
2. In the exercise of its sentencing discretion the Court can take into account any costs payable by the defendant (Environment Protection Authority v Causmag Ore Company Pty Ltd [2015] NSWLEC 58 at [123] and Environment Protection Authority v Barnes [2006] NSWCCA 246 at [78]-[88]).
3. In doing so, the Court must be mindful that the payment of the prosecutor's costs is not a reason for reducing any penalty to be imposed in a particular case lower than that suggested by the general pattern of sentencing for the relevant offence (Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 at [50]).
4. I have taken the payment of the costs for which Eveston is liable into account in determining the sentence to be imposed upon him.

Order for Restoration

1. Eveston submitted that it was appropriate for the Court to make a rectification or restoration order in lieu of a fine (relying upon Pasminco). The EPA neither contested to nor opposed the making of such an order.
2. Pasminco is distinguishable, in my opinion. That case concerned a corporate defendant's failure to rehabilitate a slag dump at a smelter in breach of s 64(1) of the POEOA. The defendant was in voluntary administration at the time of sentencing, and therefore, the Court did not impose a financial penalty. Rather, pursuant to s 245 of the POEOA and the Contaminated Land Management Act 1997, Lloyd J ordered the defendant to remediate the slag dump and that the sentence hearing otherwise be stood over for a period of seven months pending remediation (at [11]).
3. Eveston ultimately abandoned his submission in this regard on the basis that he did not want the Court to engage in any ongoing supervisory function that might require him to return to the Court.
4. I would have been disinclined to make such an order in any event given that the order would effectively be in the same terms as the extant notice and would require Eveston to do no more than that which he is already obliged to do by law.

Appropriate Sentence

1. Having regard to the objective seriousness of the offences and the mitigating subjective factors of Eveston, together with the penalties imposed in the relevant comparable cases, I find that the imposition of a monetary penalty is warranted for each offence as follows: 1. for the exceedance offence a fine of $50,000; and 2. for the removal offence a fine of $50,000.
2. Each penalty must be discounted by 25% for the utilitarian value of Eveston's early plea of guilty resulting in the imposition of a monetary penalty for each offence as follows: 1. for the exceedance offence a fine of $37,500; and 2. for the removal offence a fine of $37,500.
3. After the application of the totality principle, the penalty for the commission of the removal offence should be reduced to $18,000. This brings the total penalty to $55,500.

Moiety

1. The EPA contended that half of any monetary penalty imposed by the Court ought to be paid to it pursuant to s 122 of the Fines Act. Eveston did not cavil with the making of the order.
2. Having regard to all of the circumstances of the case, I find that it is appropriate to make such an order.

Publication Order

1. Finally, the EPA sought a publication order pursuant to s 250(1)(a) of the POEOA. The terms of the publication order are set out in annexure 'A' to this judgment.
2. Eveston opposed the making of such an order because his overall culpability was "well short" of warranting it and because he had already been publicly shamed in relation to the commission of the offences. Notably, there have already been numerous local newspaper articles relating to the proceedings and to Eveston's failure to remove waste from the property (first Eveston affidavit).
3. In the context of sentencing, a publication order serves the functions of general deterrence, denunciation and a recognition of the harm caused by the offending conduct (Bartter Enterprises (No 4) at [105]).
4. In Ditchfield Preston J emphasised that the primary purpose of publicising the detection, prosecution and punishment of offenders is to enhance general deterrence (at [76]). His Honour observed that by the public becoming aware of offending conduct, people and businesses will be deterred from committing environmental offences (see also Environment Protection Authority v Dyno Nobel Asia Pacific Pty Ltd [2017] NSWLEC 64 at [163]-[165]).
5. Eveston's offending conduct was not trivial and it occasioned potential environmental harm. It was also sustained. Eveston has a prior conviction for a waste management offence. He continues to work in the waste management industry. These factors weigh in favour of making a publication order. The order reflects the seriousness of Eveston's offending conduct and serves as a deterrent to others.
6. Having regard to the circumstances of this case, I find that the making of a publication order is appropriate.

Orders

1. 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.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 October 2022