Environment Protection Authority v Geoff Robinson Pty Ltd, Environment Protection Authority v Robinson

Introduction 1These sentencing proceedings relate to two offences with respect to s 144(1) of the Protection of the Environment Operations Act 1997 ("the POEOA"). The defendants have pleaded guilty to each offence. In so doing they have admitted the essential elements of the offence. 2Both the first defendant, Geoff Robinson Pty Ltd ("the company"), and the second defendant, Mr Geoffrey Allan Robinson, are charged with an offence under s 144(1) of the POEOA. 3Both of the offences to which each of the defendants have pleaded guilty are that from about 1 January 2007 to 22 June 2007 inclusive, the company and Mr Robinson used their land as a waste facility without lawful authority contrary. 4For the reasons given below a monetary penalty of $13,400.00 is imposed on the company and a monetary penalty of $10,050.00 is imposed on Mr Robinson.

Agreed Facts 5The evidence in both sets of proceedings was contained almost exclusively in a comprehensive agreed statement of facts that was filed with the Court. Below is a relevant summary of that evidence. 6The company's business, operating as Robinsons Resources, concerned the receipt, storage and future removal of the disposal of waste on Lot 2822 DP 1050546 near Anna Bay within the Port Stephens Council ("the council") local government area ("the land"). 7At all material times Mr Robinson was the sole director of the company. He was responsible for, and personally involved in, the day-to-day operations of the company. 8From approximately 1995 until 2008 Mr Robinson was also a councillor of the council. 9Mr Robinson's mother, Ms Sylvia Robinson, owns the land. However, at all relevant times the company was the occupier of the land and its principal place of business was situated on the land. 10The land was zoned 1(a) Rural Agricultural "a" zone under the Port Stephens Local Environment Plan 2000 ("the LEP"). 11Under the LEP, development for the purposes of agriculture is exempt development. Other development is allowed but with development consent. This included "earthworks" which was defined to mean: The addition to or removal of any solid material on any land or any other work which will alter the existing ground level or character of the surface of that land, including landfilling, drainage works and excavation of open drains. 12It is not disputed that the defendants' activities giving rise to the commission of the offences constituted "earthworks". 13The land itself is dominated by four to five acres of paddock. It contains a mobile telephone tower accessed by a construction road, both of which were constructed in or about 2003. The southern portion of the land contains a number of structures. 14The paddock has the following features: (a) a modified stream; (b) a swamp forest; (c) an area containing a mixture of pasture and wetland; (d) a culvert or drain under the constructed road; and (e) a row of casuarinas. 15The southern portion of the land was (and still is) leased in various parcels to third parties. 16It is common ground that at no time did either of the defendants hold an environmental protection licence under s 48 of the POEOA in relation to activities at the land involving the deposit of waste. Similarly, no development consent was obtained from the council as required for the lawful disposal of the waste on the land or for the earthworks. 17On 28 March 2002, development consent was issued to a section of the land leased by the company to a third party permitting a materials recycling facility. Application for the consent was made by a company called Port Stephens Bins ("PSB"). The consent did not relate to any of the land the subject of the charges. 18After the consent was issued, PSB began operating the materials recycling facility and PSB truck drivers brought skip bins onto the leased property. The contents of the skip bins were primarily construction and demolition waste, and household waste. To the best of PSB's knowledge no asbestos contaminated waste was brought onto the leased property. Moreover, PSB took a cautious approach to identifying asbestos waste. However, it was acknowledged that on some occasions, asbestos may have unintentionally come to the PSB leased property in skip bins. Any waste identified to be potentially asbestos was taken to a waste management facility elsewhere. 19PSB processed the waste delivered to them expeditiously so that there was sufficient room to continue accepting more waste onto the PSB leased property. Tipped waste was separated and sorted into recyclable and non-recyclable materials. The non-recyclable sorted material was transported to a waste management facility off the leased property. Metals that were separated during sorting were loaded onto trucks and sold to third parties. Other recyclable materials, such as bricks and concrete, were received by the company under an agreement with PSB. 20Soon after PSB started leasing the PSB property, the company purchased a crusher. Typically an employee of PSB would move the crusher either onto the PSB leased property or onto the border of the PSB leased property on the land and feed the recyclable waste materials into the crusher. The type of waste fed into the crusher included gyprock, dirt and sand, and general building and demolition waste. Then a loader owned by the company was used to move the crushed waste onto the land. Once on the land, the crushed waste was often fed through the crusher again by Mr Robinson. 21From about 2004, the company charged PSB for receiving and processing the crushed waste. Although the amount of waste provided by PSB to the company would vary from month to month, usually the company would charge a fixed rate of about $3,000 per month to PSB for receiving and processing the crushed waste. 22Waste provided by PSB to the company was then taken to a location on the land just north of the PSB leased property to a site known as 'the mound'. 23Waste was also brought onto the land by the general public for a fee from June 2005 onwards. The waste included that brought in by trades people, contractors, lawn mowing contractors and other members of the public. The waste was brought in by a variety of vehicles, including: semi trailers, bogey tippers, small tippers, box trailers, concrete trucks, utes and cars with box trailers. The waste that was delivered was shredded, often screened and placed on the mound. Typically the type of waste included: demolition waste, concrete, gyprock, paint tins, steel, garden waste, tree stumps, household waste and plastic, including plastic bags and bottles. Some of the waste contained asbestos. The defendants, in effect, operated a form of tip on the land. 24Some of the waste received onto the land was not processed and was placed directly onto the mound. Other waste was processed by crushing and/or screening. The screening process produced three piles of waste. However, having screened the waste into separate piles, the defendants moved the screened waste onto the mound or onto other areas on the land known as 'raised areas', thereby intermingling the screened waste. 25On 1 December 2004, Mr Robinson on behalf of the company, authored a letter under the Robinsons Resources letterhead to the Environment Protection Authority ("EPA"). The letter referred to the fact that Robinsons Resources was developing a resource recovery facility at the land in alliance with the existing PSB waste transfer station. A description of the operation included the operation of a shredder machine and secondary processing of the waste by screening and crushing. Comment from the EPA was sought in relation to the operation, which would accompany an integrated development application to the council. The letter concluded by stating that "as the Anna Bay operations will not be exceeding 30,000 tonnes per year there is no requirement for a licence at this site." The significance of this letter to the defendants' state of mind at the time of the commission of the offences is explained below. 26On 22 June 2007, an inspection of the land took place with officers of the council. The council officers observed the raised areas, which were made out of uncompacted building and demolition waste. The raised areas were parallel to the waterway and was being used as an access road. The raised areas were approximately 335 m long, about 1.2 m high and about 6 m wide, with batters down to natural ground level. The raised areas appeared to be freshly formed and had two distinct layers. The base layer was composed of shredded building waste such as wood, brick, tile, concrete, plastic, metal, paint cans and plastic drums. The top layer was a soil like material containing small shredded pieces of waste such as plastic and wood. Pieces of the waste from the road had fallen into the waterway and were floating on its surface. Building waste material, such as bits of tile, brick and concrete, was also submerged in the water of the adjacent waterway. The council officers took photos depicting their observations. 27The council officers proceeded further onto the land. In addition to the raised areas, they observed the mound, together with a materials sorting area adjacent to the mound. The mound is a large hill of waste about 80 m long, 10 m wide at the base, 5 m wide across the apex and with batters 5-8 m in length and approximately 4-6 m high. The creation of the mound does not form part of the charges. 28Other smaller stockpiles of material adjoin the mound, including a stockpile of soil type material. All other stockpiles appeared to be of a general building waste material that had been shredded or had been stockpiled in various stages of shredding. There was a stockpile of large pieces of concrete up to 1-2 m in length. 29During the inspection, council officers had a conversation with Mr Robinson who explained the sorting process of the building materials. Mr Robinson told the council officers that the soil material resulting from the sorting and shredding process had value because it could be used for landscaping. Mr Robinson also indicated that he wanted to use the building material for the construction of roads and landscape mounds elsewhere. 30The council officers directed Mr Robinson not to undertake any more work on the raised areas and left the land. 31Following the inspection of the land by the council officers, the council wrote to Mr Robinson requesting him to immediately put into place erosion and sediment controls to protect the surrounding area. 32An officer from the Department of Environment, Climate Change and Water ("DECCW") inspected the land on 6 July 2007. The DECCW officer divided the raised areas into various discrete areas (areas A-G). Area A comprised building and demolition waste, including pieces of tile, glass, plastics, timber, metals, labels, paper, fibreboard, containers, plastic piping and what appeared to be asbestos. The officer observed similar waste floating within the waterway close to one of the sections adjacent to area A. 33The officer also took a number of samples of waste from the mound suspected to be asbestos. Due to the expense of analysing numerous samples for asbestos, only a small number of items of waste that were suspected to be asbestos were collected. In four out of the six areas sampled asbestos was detected. 34On 31 July 2007, a further inspection of the land by DECCW officers occurred. The DECCW officers observed that the condition of the land was similar to that which he had observed during the inspection on 6 July 2007. The only change was the installation of the small sediment fence pursuant to the earlier council request. However, the officers did not consider the fence effective, as it was not long enough and did not prevent waste from falling or blowing into the waterway. The DECCW officers observed that waste had spilled over the top of the fence and into the waterway. 35During this inspection, one of the DECCW officers noticed waste that she suspected to be asbestos every 10 to 20 steps on various sections of the raised areas. A number of samples were taken to determine whether asbestos material was present. Again, due to the expense of analysing numerous samples for asbestos, only a small number of items of waste that were suspected to be asbestos in each area were collected for sampling. With the exception of area F, all other areas in which samples were taken (areas A-G) returned a positive result for asbestos. 36DECCW officers measured each of the separate areas of the raised areas on the land. At its highest the raised areas were 1.2 m. At their widest they measured 8.5 m. The approximate combined length of each of the areas of the raised areas was 548 m. 37On 7 August 2007, Mr Robinson was served with a draft clean up notice. The notice required further sediment fencing and that the waste on the land not be moved. Mr Robinson requested that the notice give further time for compliance. On 14 August 2007, a final clean up notice was issued. 38On 22 November 2007, the land was surveyed by registered surveyors. The results indicated that 2,230 m 3 of waste was contained in the raised areas. 39During the course of interviews with the investigating authorities, Mr Robinson stated his reasons for constructing the raised areas (these are discussed in greater detail below). He also disclosed that the raised areas were constructed by him operating a case loader and its construction commenced in January 2007. 40The waste materials that were fed into the crusher and, ultimately, deposited on the raised areas were sourced from both PSB and the public. 41The waste deposited on and in the raised areas was deposited in an environmentally sensitive area.

Statutory Framework 42Section 48 of the POEOA requires: 48 Licensing requirement-scheduled activities (premises-based) (1) Application of section This section applies to scheduled activities where Schedule 1 indicates that a licence is required for premises at which the activity is carried on. (2) Offence A person who is the occupier of any premises at which any such scheduled activity is carried on is guilty of an offence, unless the person is, at the time that activity is carried on, the holder of a licence that authorises that activity to be carried on at those premises. 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. 43Section 144(1) of the POEOA provides as follows: 144 Use of land as waste facility without lawful authority (1) A person who is the owner or occupier of any land and who uses the land, or causes or permits the land to be used, as a waste facility without lawful authority 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. 44Clause 1(b) of the "waste facilities" category in Pt 1 of Sch 1 to the POEOA states: Hazardous, industrial, Group A or Group B waste disposal facilities, being waste facilities that dispose of hazardous waste, industrial waste, Group A waste or Group B waste (or any combination of those types of waste). 45Division 2 of the special interpretive provisions relating to waste contained in Sch 1 to the POEOA, defines industrial waste in terms of the Appendix to Sch 1, which in turn defines "industrial waste" to include stabilised asbestos in a bonded matrix. 46Clause 1(g) of the "waste facilities" category in Pt 1 of Sch 1 to the POEOA states: landfill or application sites in environmentally sensitive areas, being landfill or application sites that are located in an environmentally sensitive area described in Technical Appendix 8 of the Waste Guidelines... 47The site does not fall within any of the exceptions to clause 1(g). 48The term "waste" is defined in the Dictionary to the POEOA as: waste includes: (a) any substance (whether solid, liquid or gaseous) that is discharged, emitted or deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment, or (b) any discarded, rejected, unwanted, surplus or abandoned substance, or (c) any otherwise discarded, rejected, unwanted, surplus or abandoned substance intended for sale or for recycling, processing, recovery or purification by a separate operation from that which produced the substance, or (d) any processed, recycled, re-used or recovered substance produced wholly or partly from waste that is applied to land, or used as fuel, but only in the circumstances prescribed by the regulations, or (e) any substance prescribed by the regulations to be waste. A substance is not precluded from being waste for the purposes of this Act merely because it is or may be processed, recycled, re-used or recovered. 49Technical Appendix 8 of the POEOA identifies landfill sites within "environmentally sensitive areas" as: (a) landfill sites in or within 40 m of a permanent or intermittent waterbody. Technical Appendix 8 defines a waterbody to include any constructed waterway; and (b) landfill sites within 250 m of a dwelling not associated with the facility. 50Liability of the company was attributed to Mr Robinson pursuant to s 169(1) of the POEOA which relevantly states: 169 Offences by corporations (1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision...

Evidence of the Defendants 51In addition to the agreed statement of facts, the defendants also relied on an affidavit of Mr Geoffrey Robinson sworn 7 February 2011. In that affidavit Mr Robinson deposed to the following: (a) that he regarded the material the company had been crushing and storing since June 2005 as a resource and that he and the company had hoped to develop a market in selling locally recovered and processed materials. It was not the defendants' intention to create the raised areas as a means of simply disposing of the waste; (b) that on 24 October 2007, Mr Robinson wrote to DECCW seeking, in effect, its permission to remove all of the stockpiled material on the land. DECCW replied to Mr Robinson on 5 November 2007, indicating that the material could not be removed because it was evidence; (c) that at the time he built the raised areas he did not know that he needed development consent or an environmental protection licence to do so. This is because he knew his land was zoned 'agricultural' and he understood that he did not need consent for agricultural development. He did not, however, know or even consider that he might need a separate licence from the EPA; (d) that he initially commenced fixing the road to the Optus mobile telephone tower because, on occasion, trucks that had come to service the tower had gotten bogged and had to be towed by him. Later he decided to continue the track along the creek; (e) that he constructed the raised areas in the middle of the paddock for agricultural purposes. He intended to graze beef cattle once he had built internal paddocks by putting fences on the raised areas; (f) that the Robinson family have lived on the land since approximately 1830; (g) that because of Mr Robinson's age, 62, he was finding it difficult to obtain full-time employment. Since 22 June 2007, he had only obtained casual employment. From December 2010 he had been casually employed as a boilermaker. While he hoped to keep his current work until June 2011, this was dependant upon the company currently employing him obtaining further work contracts; (h) that both himself, his wife and his mother had lent substantial amounts of money to the company, of which there was little prospect of recovery; (i) that in 2008 the company sold a crusher it had used on the land for significantly less than the value recorded in the company accounts for this asset; (j) that the waste material present on the land would be expensive to both himself and the company to remove and dispose of; (k) that all other property owned by him was heavily mortgaged; and (l) that he owned no other significant assets. 52In the affidavit Mr Robinson stated that he was very sorry for what he and the company had done. Mr Robinson stated that he understood that what he did was wrong and that he should have obtained advice and sought approvals before building the raised areas with the waste. 53Mr Robinson stated that neither he nor the company are engaged in the waste recovery business. The only business the company is presently engaged in is managing and receiving rents from the third party leases on the land. 54Finally, Mr Robinson stated that because of the embarrassment resulting from what he has done, he had decided not to stand for re-election for the council. 55References were tendered attesting to Mr Robinson's good character and good standing in the local community. 56In addition, evidence was tendered as to the state of Mr Robinson's mental health. Mr Robinson suffers from an anxiety disorder exacerbated by the stress of the prosecution. However, as there was no evidence that this disorder was present at the time he or the company committed the offences, its only relevance is to a determination of the defendants' likelihood of re-offending. It has no bearing on any assessment of the objective seriousness of the offences committed ( Environment Protection Authority v Wattke; Environment Protection Authority v Geerdink [2010] NSWLEC 24 at [81]-[87]). 57Reliance was also placed on an affidavit of Mr John Edmunds sworn 26 November 2010. Mr Edmunds is the solicitor for the defendants. He attached a quote given by Hunter Tech Services Pty Ltd ("HTS"). HTS carry on the business of demolition, earthmoving and waste removal and disposal. HTS estimates the cost of removal and disposal of the waste material to be over $6 million. This estimate, however, includes the cost of removal of the mound, which, as is stated above, is not the subject of either charge. To remove and dispose only of the waste from the raised areas was estimated at $730,873.

Purposes of Sentencing 58The purposes of sentencing are stated in s 3A of the Crimes (Sentencing Procedure) Act 1999 ("the CSPA") as: 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. 59The correct method of sentencing is the instinctive synthesis method having regard to all of the relevant objective and subjective circumstances surrounding the commission of the offences ( Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [35]-[39], [50]-[84] and [136]-[139]).

Approach to Sentencing 60It is a basic principle of sentencing law that the sentence imposed by the Court for an offence must both reflect, and be proportionate to, the objective circumstances of the offence and the personal or subjective circumstances of the defendant ( Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 at 490 and Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472). 61Section 21A of the CSPA further identifies matters which the Court must take into account when sentencing, including those in aggravation (s 21A(2)) and those in mitigation (s 21A(3)). 62Further, the POEOA also provides the following matters for consideration in the imposition of penalty under s 241: 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. (2) The court may take into consideration other matters that it considers relevant.

Objective Considerations 63The primary factor the Court must consider when determining sentence is the objective gravity or seriousness of the offence. This is determined by consideration of the upper most limit of a sentence that is justified as appropriate or proportionate to the gravity of the crime in light of its objective circumstances ( Veen v The Queen (No 2) at 472, 485-486, 490-491 and 496; Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 354) and the lower limit of the offence by allowing for consideration of the subjective factors of the matter to produce a proportionate range that reflects the objective gravity of the offence ( Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 at [50] and Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [46]). 64The objective circumstances of the offence and the purposes of punishment inform the lower limit of sentencing discretion, a bottom line beneath which a sentence cannot legitimately be set ( Rawson at [46] and Graham v R [2009] NSWCCA 212 at [43]-[44]). 65In determining the objective gravity or seriousness of the offence, the circumstances of the offence to which the Court may have regard include ( Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [163], Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [110] and Rawson at [48]): (a) the nature of the offence; (b) the maximum penalty for the offence; (c) the objective harmfulness of the defendants' actions; (d) the defendants' state of mind in committing the offence; (e) the defendants' reasons for committing the offence; (f) the foreseeability of risk of harm to the environment; (g) the practical measures to avoid harm to the environment; and (h) the defendants' control over the causes of harm to the environment.

Nature of the Offences 66A fundamental consideration of relevance to environmental offences is the degree by which, having regard to the maximum penalties provided by the statute in question, the offenders conduct would offend against the legislative objectives expressed in the statutory offence ( Rawson at [49]). 67The primary objective of the POEOA is to protect, restore and enhance the quality of the environment of New South Wales by, amongst other things, reducing risks to human health and preventing the degradation of the environment through mechanisms that reduce the discharge of substances likely to cause harm to the environment (s 3 of the POEOA). 68The defendants' actions in permitting waste to be deposited on the land without first applying for, and obtaining, the necessary approvals, either by way of development consent or environmental protection licence, undermine the legislative objectives of not only the protective regulatory scheme contained in that legislation, but the legislative objectives of the offence itself ( Environment Protection Authority v Hanna [2010] NSWLEC 98 at [38]-[39]).

Maximum Penalty 69The maximum statutory penalty is of considerable significance in determining the objective gravity of the offence ( Rawson at [57]). It demonstrates the seriousness with which these offences are viewed ( Scahill at [52], Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 and Markarian at [31]). 70The maximum penalty at the time of the commission of the offences for breach of s 144(1) of the POEOA was $1 million for the company and $250,000 for an individual.

Environmental Harm 71The parties agreed that the actual harm caused by the commission of the offences was: (a) the pollution of the waters of the waterway with waste materials; (b) the adverse impact on the amenity of neighbouring residential premises until mid 2009, insofar as the raised areas acted as a barrier to water running off the land and prevented at least one neighbour from slashing grasses as part of the maintenance of his property; and (c) the smothering of wetland plants in those parts of the raised areas constructed in the paddock areas of the land. 72Thus it was agreed that proper remediation of the land would require the complete removal of the raised areas. 73In terms of the potential environmental harm the parties agreed that: (a) work on the land prior to the construction of the raised areas may have inhibited surface flow of waters to the waterway. Similarly the construction of the road to the mobile phone tower may have inhibited surface flow of water to the drain; (b) the building of the road has increased the potential for forested land to the east of the land to receive more flooding; (c) the changes in hydrology occasioned by the construction of the raised areas has the potential to affect species diversity, the rates at which nutrients are released from the soil, the rates at which organic litter is degraded by bacteria, the rates at which blue-green algae form, the rates at which phytoplankton photosynthesise in the water column and the rates at which zooplankton feed, breed and provide food for vertebrates; and (d) the raised areas have the potential to increase weeds, resulting in new plant species and weeds being introduced into the local wetland system, including into the swamp forest. 74Although the defendants accepted that the commission of the offences had caused actual and potential harm to the environment, they submitted that there was no evidence of any current or likely adverse effects on the environment caused by the deposited waste. 75I accept the submissions of the prosecutor that given the nature of the offences and the scope of the deposited waste material, that any likely (see Newcastle City Council v Pace Farm Egg Products [2002] NSWLEC 66 at [44] as to the meaning of 'likely' in these circumstances) adverse effects could be anticipated to be medium to long term. 76As was stated by Preston J in Environment Protection Authority v Waste Recycling and Processing Corporations [2006] NSWLEC 419; (2006) 148 LGERA 299 at [147] and [149]: 147 Harm can be direct or indirect, individual or cumulative. Activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernable direct harm to human interest, should also be treated seriously. ... 149 The fact that the environment harmed by the offender's conduct was already disturbed or modified is not a mitigating factor: State Pollution Control Commission v White Wings Ltd (unreported, Land and Environment Court, NSW, Bignold J, No 50129 of 1991, 1 November 1991) at 4; Environment Protection Authority v Ecolab Pty Ltd (2002) 123 LGERA 269 at [14]; Environment Protection Authority v Coggins (2003) 126 LGERA 219 at [18]; Environment Protection Authority v Abigroup Contractors Pty Ltd [2003] NSWLEC 342 (15 December 2003) at [24]; Environment Protection Authority of New South Wales v Arenco Pty Ltd [2006] NSWLEC 244 (9 May 2006) at [26]. 77Unlawfully deposited waste can be a danger to human and animal health. It can, as in the present case, be washed into waterways and result, also in the present case, in a loss of community amenity. While it is a fact that the defendants complied with the request of the council to erect a sedimentation fence and that when clearing the drain to the waterway, the council disposed of the acid soil and weed on site, these considerations do not, contrary to the submission of the defendants, greatly assist in reducing the gravity of the offences (cf Environment Protection Authority v Ecolab Pty Limited [2002] NSWLEC 206; (2002) 123 LGERA 269 at [14]). It remains the fact that the defendants, by their actions, have caused real environmental harm to an ecologically sensitive area (s 241(1)(a) of the POEOA). 78Finally, the actual and potential harm caused to the environment by the presence of asbestos on the land must not be forgotten. 79In my opinion, the fact of actual and potential harm to the environment having been caused by the presence of asbestos, together with the extensive size of the waste deposited on the land, and its close physical proximity to a waterway, increases the objective gravity of the offences. The estimated cost given to remediate the land reinforces this conclusion.

Practical Measures to Avoid the Harm 80In terms of the practical measures the defendants could have taken to avoid the harm to the environment (s 241(1)(b) of the POEOA) these include: (a) disposing of the waste at a licensed waste facility; (b) obtaining the appropriate licence and consent and adhering to any conditions imposed; (c) making appropriate enquiries of the council and the EPA in order to ascertain the regulatory requirements necessary to lawfully deposit the waste on the land; (d) promptly implementing appropriate environmental controls such as effective sediment fencing to prevent waste materials from spilling into the waterway; and (e) not depositing the waste material on the land.

Foreseeability of Risk of Harm and Control Over Causes of Harm 81The risk of environmental harm in disposing of the waste on the land on and in the raised areas was plainly foreseeable. That risk must have been all the more apparent when the waste was deposited adjacent to a waterway (see s 241(1)(c) of the POEOA). 82Further, given Mr Robinson's position as sole director of the company, it is clear that at all times both defendants had full control of the causes of the commission of the offences (s 241(1)(d) of the POEOA).

State of Mind of the Defendants 83Although an offence against s 144(1) of the POEOA is one of strict liability, if committed intentionally, recklessly or negligently this will serve to increase the objective seriousness of the offence. 84There was no evidence to suggest that either of the defendants committed the offences intentionally. 85The prosecution submitted that the offences were committed recklessly. However, this submission cannot, in my view, be supported on the available evidence. Rather, in my opinion, the defendants acted negligently in the commission of the offences insofar as - particularly having regard to the fact that Mr Robinson was a councillor for approximately 13 years and he admitted to having had familiarity with the process of obtaining development consents and environmental protection licences - they did not seek appropriate advice or make appropriate enquiries concerning the regulatory requirements to dispose of the waste on the land. Instead, it was assumed that because the land was zoned agricultural and because, at least in part, the construction of the raised areas was to permit cattle to be grazed on the land, that is to say, for an agricultural purpose, no consent or licence was needed. 86Similarly, to the extent that Mr Robinson stated in cross-examination that he did not realise that the deposited material constituted 'waste' for the purposes of the POEOA, this was, at best, an erroneous assumption on his part that could easily have been clarified by appropriate enquiries. Enquiries which, as his letter dated 1 December 2004 to the EPA demonstrated, he was capable of making and which demonstrated his awareness that there was a regulatory regime governing the processing of waste. His assumption that it did not apply to him ought, in my view, be characterised as negligent.

Reasons for Committing the Offences 87Both the seriousness of the actions involved in committing the offences and the reasons for their occurrence bear upon the criminality involved ( Hanna at [49]). I have concluded that these offences were committed in the course of a business and thus for financial gain ( Bentley at [247] and s 21A(2)(o) of the CSPA). 88Mr Robinson indicated the reason for constructing the raised areas in areas A and B as the desire to help clear acid sulphate soils that had been placed on the embankment during the widening of the waterway in December 2006 and to allow for greater access for council trucks and the defendants' vehicles to remove alligator weed, which had been removed from the drain and placed on the banks of the waterway. This evidence, however, is contradicted by the agreed fact that from 1999 onwards the acid sulphate soils were removed during the cleaning of the drains by the council and treated on site by the application of lime, and that the removed vegetation was deliberately left on site by the council to prevent the spread of alligator weed. 89According to Mr Robinson, the raised areas in and around areas C and D were constructed to consolidate motor vehicle access to the mobile telephone tower and for fire mitigation purposes. However, given that Mr Robinson constructed the original road to the mobile telephone tower as early as 2003 and that the material placed by him forming the raised areas in areas C and D did not comply with Optus' specifications for access track performance for cable and wireless installations, it may be inferred, which I do, that this consolidation was done purely for the defendants' benefit. 90In relation to the waste placed in areas E, F and G, the reason given by Mr Robinson for depositing the waste in these areas was to facilitate placing fences in these locations to establish three distinct paddocks as part of plans to improve the land for the purposes of beef cattle farming, albeit on a small scale. 91While none of the reasons given by Mr Robinson were the subject of direct challenge by the prosecutor, notwithstanding the submissions of the defendants, the Court is prepared to infer that in their totality the criminal activity was carried out for financial benefit, even if only, in part, indirect benefit. 92First, it must be recalled that the waste was accepted and deposited onto the land for a fee from PSB and the public. 93Second, Mr Robinson regarded some of the waste as having value, at least for landscape purposes. 94Third, with respect to the construction of the raised areas the Court infers that these activities were individually and collectively carried out to permit the defendants to carry on their business of operating as a receiver and recycler of waste, to enhance the land, and to facilitate the carrying out of a future commercial activity, namely, beef cattle farming. All of these purposes can be characterised as commercial in nature. 95In the alternative, even if I am wrong in this conclusion, the explanations given by Mr Robinson for committing the offences cannot be regarded, in my view, as reasonable. 96This is not to say that the evidence establishes that the defendants carried out the activity of disposing of waste on the land for the purpose of constructing the raised areas with the intention of making a profit or saving an expense or avoiding the cost of obtaining and implementing the necessary approvals ( Environment Protection Authority v Hardt [2007] NSWLEC 284 at [46]). To the extent that the defendants' reasons for committing the offences increase the objective seriousness of the offences, I find that it does so to a very limited degree.

Conclusion on Objective Circumstances 97The nature of the offences; the penalties that attach to each offence; the degree of harm to the environment, both actual and potential; the negligent commission of the offences; the reasons for the commission of the offences; the foreseeability of risk of harm to the environment by reason of the unlawful dumping of waste in the locations identified; the existence of practical measures to avoid the risk of harm and the control over causes which the defendants had, all form the basis upon which the objective gravity of the offences is to be determined. 98The prosecutor submitted that the offences were of moderate objective gravity. The prosecutor, in particular, emphasised the quantity of the waste involved and its placement in an ecologically sensitive area, namely, next to a waterway and wetlands. In addition, the prosecution emphasised that the waste contained contaminants in the form of asbestos, although it conceded that the risk to human health occasioned by its presence on the land was low. 99Based on the considerations referred to above, in my view, the offences should be regarded as low to medium objective gravity.

Subjective Circumstances of the Defendants 100Within the limits set by the objective gravity of the offence, the Court may take into account the mitigating factors personal to the offender (s 21A(3) of the CSPA) and the Court has taken into account the following subjective circumstances of the defendants: (a) neither defendant has any prior convictions (s 21A(3)(e) of the CSPA); (b) the defendants pleaded guilty on the second occasion the proceedings were before the Court. While not pleaded guilty on the first available occasion, it cannot be said that the utilitarian value of the early plea of guilty was diminished in any way, coming as it did prior to the prosecutor filing any further evidence, and accordingly, the defendants should be afforded the full 25% discount (see ss 21A(3)(k) and 22 of the CSPA and R v Thomson [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [160]); (c) Mr Robinson, as the director of the company, gave both affidavit and oral evidence clearly demonstrating the defendants' contrition and remorse for their unlawful actions. I accept this expression as genuine (see s 21A(3)(i) of the CSPA); (d) the Court readily accepts that both defendants are, but for the commission of these offences, of good character (s 21A(3)(f) of the CSPA). However, the Court notes the limited weight to be given to this factor in light of the comments made by Preston J in Rawson at [142]-[149]; (e) the defendants cooperated fully with the authorities at the first available opportunity. This assistance is demonstrated by numerous interviews with investigators and by agreeing to a compendious statement of facts (s 21A(3)(m) of the CSPA); (f) the defendants acknowledge that proper remediation of the land will require removal of the raised areas. While there is insufficient detail in the HTS quote attached to the affidavit of Mr Edmunds to permit the Court to determine with any necessary degree of specificity what the actual cost will be to remove the waste in the raised areas, the parties agree that the cost will be very substantial. I accept this qualitative estimate and take it into consideration. I further take into account that while no remediation order is sought in these proceedings, the prosecution has confirmed that it intends to issue a clean up notice under s 91 of the POEOA to remove the waste in the raised areas, the mound and elsewhere on the land in the very near future ( Environment Protection Authority v Buchanan (No 2) [2009] NSWLEC 31; (2009) 165 LGERA 383 at [118]; and (g) the prosecutor seeks, and the defendants have agreed to pay subject to an appropriate apportionment in accordance with their respective culpability, professional costs in the amount of approximately $41,000 and investigation costs in the amount of approximately $7,000. 101The payment of a prosecutor's costs is an aspect of punishment ( Environment Protection Authority v Barnes [2006] NSWCCA 426 at [78]). There is no question that this Court is empowered to order a defendant to pay the prosecutor's costs as specified or as may be determined under s 257G of the Criminal Procedure Act 1986 (see s 257B of that Act). 102In Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 Biscoe J noted that in this jurisdiction an order for costs against a defendant is routinely made. Thus his Honour opined (at [50]): Consequently, payment of the prosecutor's costs is a constant aspect of punishment such that it is embedded in the general pattern of sentencing for all offences. Therefore, of itself , it does not generally seem to be a reason for reducing a penalty in a particular case lower than that suggested by the general pattern of sentencing for the relevant offence. Something more would seem to be required. 103I do not construe his Honour's comments as resiling from the general principle stated in Barnes that the payment of a prosecutor's costs may be considered in the determination of the appropriate penalty, including as a factor that acts to reduce that penalty. In any event, as is apparent from the defendants' financial means to pay any fine imposed by the Court, "something more" is present in these proceedings. 104The defendants requested that the costs be apportioned between them in such a way so as to reflect their criminal culpability. Given that Mr Robinson was the sole director of the company and in circumstances where he had complete control over the day-to-day activities of the company, there is naturally a degree of artificiality involved in any apportionment exercise. Accordingly, subject to the consideration of each defendant's capacity to pay any monetary penalty imposed upon them, I have determined to apportion the costs equally between the two defendants.

Capacity to Pay 105Barnes also stands as authority for the proposition that payment of the prosecutor's costs may also impact on the financial means of a defendant to pay a fine, which is a consideration under s 6 of the Fines Act 1996 (see Rahme v R (1989) 43 A Crim R 81 at 87, Environment Protection Authority v Wattke; Environment Protection Authority v Geerdink [2010] NSWLEC 24 at [95]-[96] and Leppington at [49]). 106The evidence of Mr Robinson overwhelmingly demonstrates that neither he nor the company are persons of means. On the contrary, the evidence demonstrates that Mr Robinson has suffered great financial detriment as a consequence of the commission of the offences by both himself and the company. This evidence was not challenged by the prosecutor. 107It is therefore clear that neither defendant has anything more than a limited capacity to pay a substantial fine, particularly when regard is further had to the prosecutor's professional fees and investigations costs, and the likely very high cost of remediating the land.

Extra Curial Punishment 108The Court also takes into account the public humiliation Mr Robinson has suffered, and will undoubtedly continue to suffer, by reason of his previous position as a councillor on the council and his standing and profile in the local community ( Abdel Alameddine v R [2006] NSWCCA 317 at [25]-[27] and Cessnock City Council v Quintaz Pty Limited; Cessnock City Council v McCudden [2010] NSWLEC 3; (2010) 172 LGERA 52 at 115).

Deterrence 109One of the purposes of the Court in imposing a sentence is to prevent crime by deterring the offender and other persons from committing similar offences. This purpose is enshrined in s 3A(b) of the CSPA ( Gittany at [188]-[190] and [192]). 110A person will not be deterred from committing environmental offences by the imposition of nominal fines ( Bentley at [140]). Equally, the sentence imposed by the Court must show the denunciation of the crime committed and take into account the moral outrage of the community ( Bentley at [143]). The community is entitled to expect that the Court will exercise its discretion to impose penalties commensurate with the community's views. 111One of the purposes of imposing a sentence is to prevent crime by deterring other persons from committing similar offences. There is a need for general deterrence in a case such as this involving the unlawful depositing of waste, including hazardous waste such as asbestos, in an environmentally sensitive area. The penalty imposed must be sufficient to ensure that those contemplating the receipt and disposal of waste materials ensure that prior to doing so all regulatory controls have been met in order to ensure that the environment is not degraded in any way ( Hanna at [38]). The regulatory system under both the Environmental Planning and Assessment Act 1979 ("the EPAA") and the POEOA would be rendered ineffective and the environment harmed if persons were allowed to deposit waste on land without either development consent or an environmental protection licence. 112Given the defendants' evidence that neither he nor the company are currently engaged in the business of the receipt and recycling of waste and nor do they intend to so engage in the future, and given the defendants' absence of any prior convictions, I have determined that there is no need for specific deterrence. I am satisfied that both defendants have learnt their lesson and they are unlikely to re-offend.

Conclusion as to Subjective Considerations 113The subjective circumstances of both the company and Mr Robinson mitigate the sentence imposed to a significant degree.

Consistency in Sentencing 114A relevant consideration in sentencing is the ascertainment of the existence of a general pattern of sentencing by the courts for offences such as those in question ( Gittany at [179]-[183]). 115Care must nevertheless be taken because each case is different and a sentence in one case does not demonstrate the limits of a sentencing judge's discretion ( Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 365 and Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at 312). 116The prosecutor referred the Court to four decisions of comparison: (a) Environment Protection Authority v Nechakoski [2002] NSWLEC 61; (2002) 120 LGERA 426; (b) Environment Protection Authority v Sorcevski [2002] NSWLEC 115; (c) Environment Protection Authority v Pannowitz & Steepleton Pty Ltd [2005] NSWLEC 175; and (d) Environment Protection Authority v Robinson [2004] NSWLEC 629. 117Both Nechakoski and Pannowitz were summarised by Craig J in Hanna (at [71] and [72]). I have read both decisions and I adopt his Honour's summary of the facts and penalties awarded in those cases as set out in Hanna . 118The decision of Sorcevski arose out of the same factual nature as Nechakoski . The defendant owned the land on which the building and demolition materials was placed. The waste was placed near an agricultural drain and the land was low lying and flood zone prone. The defendant pleaded guilty at a late stage, there was a finding of actual harm to the environment and wetland and a finding of potential harm to amphibian species. The defendant agreed to remediation orders to remove some of the waste, had limited means to pay any fine and was contrite. The defendant was fined $6,000 for an offence against s 64 of the Waste Minimisation and Management Act 1975 and $2,500 for a similar offence against the POEOA. 119Similarly, Robinson arose from the same factual matrix as Pannowitz . The commission of the offence was characterised as serious given the quantity of waste involved and the potential for the contaminated top soil to find its way into a local waterway. The receipt of the waste was found to be for commercial purposes and the Court held that the defendant had constructed the mound in an environmentally sensitive area where the risk of environmental harm was foreseeable. The defendant was fined $8,000 in respect of an offence against s 144(1) of the POEOA. The maximum penalty at the time was $120,000. 120The defendants submitted that the decision of Hardt was the most comparable having regard to the facts of the commission of the present offences. After trial the Court found Mr Hardt guilty of committing an offence against s 144(1) of the POEOA. That decision concerned the construction by the defendant of a waste stockpile. The stockpile included hazardous waste. The stockpile was surveyed at 7,200 m 3 . It resulted in actual environmental harm by way of destruction of vegetation and potential environmental harm both to the native vegetation and the nearby aquatic environment. The Court held that the reasons for committing the offence were not financial. The Court found that the defendants belief that he was authorised to build a road was not reasonable. Further, the defendant could reasonably have foreseen the harm caused and there were practical measures that could have been taken to prevent the risk of harm. At all times the defendant had control over the causes that gave rise to the offence. The defendant had no prior criminal record, expressed contrition and remorse and agreed to carry out remediation. The defendant provided some assistance to the authorities. The defendant had the capacity to pay a fine depending on the quantum of that fine. A fine in the amount of $12,000 was imposed along with an order to pay the prosecutor's legal costs agreed in the sum of $105,000. The defendant was also ordered to remediate the site. The maximum penalty at the time was $120,000. 121In Eurobodalla Shire Council v Leth [2007] NSWLEC 599 the defendant pleaded guilty to an offence against s 144(1) of the POEOA. The defendant made his land available to a friend, did not earn any money out of the commission of the offence and there was no ongoing environmental harm caused by the commission of the offence. There was, however, the potential for environmental harm occasioned by the waste. The defendant wholly mitigated any potential harm by removing the material from the land. The materials contained no hazardous substances and the defendant foresaw no environmental harm. The defendant expressed remorse for what he had done and had complied fully with the authorities. The defendant was ordered to pay a fine of $2,500 together with the prosecutor's costs of $24,000. 122In Environment Protection Authority v Hogan [2008] NSWLEC 125 the defendant was the general manager of a company which undertook landfill activities. He was charged with using land as a waste facility without lawful authority. The company held an environment protection licence which had been suspended. The defendant permitted trucks to enter the premises and deposit waste despite the licence suspension. The Court considered that the defendant did not take adequate steps to inform himself of the consequences of the suspension. The defendant also held the erroneous belief that some of the waste was not waste within the meaning of the POEOA. No actual harm was caused by the offence, the defendant had no prior convictions and a guilty plea was entered, albeit on the second day of the hearing. Some weight was given to his difficult financial circumstances. A penalty of $18,000 was imposed and the defendant was required to pay the prosecutor's costs. 123In Environment Protection Authority v Ghossayn [2009] NSWLEC 181 the defendant was the managing director of a company which operated a waste facility receiving demolition waste contrary to s 144(1) of the POEOA. Its environment protection licence was suspended by the EPA and the company continued to transfer waste after the suspension of the licence. The defendant was fined $14,000, taking into account a number of mitigating circumstances and the fact that he was charged with an additional offence under s 126 of the POEOA. 124In Environment Protection Authority v Smartskip (NSW) Pty Ltd [2009] NSWLEC 204 the defendant was similarly charged with committing an offence under s 144(1) of the POEOA. The Court found that there was a likelihood of potential harm to the environment and that this likelihood was foreseeable. The offence was committed in order to obtain a commercial advantage and to save the defendant from the expense of complying with the development control legislation and the requirements of the POEOA. The defendant pleaded guilty at an early opportunity and expressed remorse. The defendant cooperated with the prosecuting authority and demonstrated that it had taken reasonable measures to prevent any further breaches of the waste tonnage limits under the POEOA and was unlikely to re-offend. The defendant was fined the sum of $50,000 and ordered to pay the prosecutor's costs in the sum of $20,000. 125In the decision of The Hills Shire Council v Suciu (No 3) [2009] NSWLEC 192, the defendant was found guilty of an offence contrary to s 143 of the POEOA. He had deposited approximately 3,000 m 3 of demolition waste in a disused quarry without the permission of the owner of the quarry to do so. The content of the waste material was such that remediation was required at an estimated cost of $76,000. There were, however, unlike the present case, considerable aggravating factors attending the commission of the offence. In particular, the dishonesty of the defendant towards the land owner and towards the prosecutor. As a consequence, a penalty of $80,000 was imposed for a single offence and the defendant was ordered to pay the prosecutor's costs. The maximum penalty at the time was $120,000. 126In referring to the decisions above, I am conscious that some of these cases concern the intentional commission of offences, which makes them readily distinguishable from the present proceedings.

Totality Principle 127Both parties submitted, and I accept, that the totality principle applies to the present offences given that they arise from the one incident. Furthermore, as the sole director of the company, the reality is that it will be Mr Robinson who will in all likelihood suffer both penalties ( Keir v Sutherland Shire Council [2004] NSWLEC 754 at [16] and Gittany at [196], [199] and [200]). 128However, as was stated in Rawson (at [222]), care must be taken to ensure that any adjustment of individual sentences does not cause the aggregate sentence not to reflect the total criminality of the individual offenders' conduct or the sentence for any individual offence to become disproportionate to the objective gravity of that offence.

Penalty to be Imposed on the Company 129Taking into account the objective circumstances of the offences mitigated by the subjective circumstances of the company, including the purposes of sentencing, I am of the view that the penalty of $20,000, discounted by a total of 33%, which includes an allowance for an early guilty plea, and the application of the totality principle, is appropriate. This results in a total fine of $13,400.

Penalty to be Imposed on Mr Robinson 130Again taking into account all of the circumstances identified above, including the totality principle and having regard to the purposes of sentencing, I am of the view that a penalty of $15,000, discounted by a total of 33% is appropriate. This results in a total fine of $10,050.

Publication Order 131The prosecutor seeks an order pursuant to s 250(1)(a) of the POEOA requiring publication of the conviction and fine in a newspaper. 132While the defendants did not cavil with the content of the proposed publication, they submitted that no publication order should be made because of the potential unfairness that could result in the publication to Mr Peter Robinson, Mr Robinson's brother, who operates a business known as 'Robinson's Earthmoving and Construction'. It would, the defendants submitted, be natural for a member of the public reading the publication to confuse either Geoff Robinson Pty Ltd or Robinsons Resources with Robinson's Earthmoving and Construction, thereby causing unintended harm to that business. 133While there was evidence in the agreed statement of facts that Mr Peter Robinson was the director of Anna Bay Sands Pty Ltd, there was no evidence before the Court as to the size of Robinson's Earthmoving and Construction, the extent of its operations or how well known it is in the local community. While it is not fanciful to suppose that there may be some people who, upon reading the publication in the newspaper, will erroneously assume that it refers to Mr Peter Robinson's business, insufficient evidence was placed before the Court from Mr Peter Robinson either in respect of his attitude to the publication order or in respect of the potential adverse impact this would have on Robinson's Earthmoving and Construction. Accordingly, I reject this reason against making a publication order. 134In the context of offences of the kind with which the defendants have been charged, and in order to serve as a deterrent and denunciation of the conduct giving rise to the commission of offences, it is appropriate that a publication order be made. 135The form of the order was tendered and because no challenge was made to that form by either of the defendants, I make it as proffered by the prosecution.

Orders 136The orders that the Court makes are as follows: Proceedings 50030 of 2010 (against the company): (1) the defendant is convicted of the offence as charged; (2) the defendant is fined the sum of $13,400.00; (3) the defendant is to pay the prosecutor's professional costs and disbursements as agreed in the sum of $20,500; (4) the defendant is to pay prosecutor's investigation costs agreed in the sum of $3,500 Proceedings 50029 of 2010 (against Mr Robinson): (5) the defendant is convicted of the offence as charged; (6) the defendant is fined the sum of $10,050.00; (7) the defendant is to pay the prosecutor's costs and disbursements as agreed in the sum of $20,500; (8) the defendant is to pay the prosecutor's investigation costs as agreed in the sum of $3,500; Both proceedings: (9) pursuant to s 250(1)(a) of the POEOA within 28 days of this order, the defendants are to place a notice in the first 12 pages of the early general news section of The Sydney Morning Herald and The Port Stephens Examiner at a minimum size of 8 cm by 12 cm in the form of Annexure 'A' to this order; (10) within 35 days of this order, the defendants are to provide to the prosecutor a copy of the notice as published in the newspapers in accordance with the preceding order; and (11) the exhibits are to be returned.

Annexure A PROSECUTION of Geoff Robinson Pty Limited and Geoffrey Allan Robinson for USE OF LAND AS WASTE FACILITY WITHOUT LAWFUL AUTHORITY On 9 February 2011, the Land and Environment Court of New South Wales found Geoff Robinson Pty Limited (ACN: 093 360 582) and its director Geoffrey Allan Robinson each guilty of an offence against section 144(1) of the Protection of the Environment Operations Act 1997, in relation to being the occupier of land at 21 Gan Gan Road, Anna Bay, New South Wales and using that land as a waste facility without lawful authority. Geoff Robinson Pty Limited and Mr Robinson pleaded guilty to the charges and the Court found that, Geoff Robinson Pty Ltd and Mr Robinson had disposed of building and demolition waste including waste contaminated with asbestos at 21 Gan Gan Road Anna Bay, within 40 metres of the Fernvale Drain and within 250 metres of nine residential dwellings not associated with the land. The disposal was unlawful because there was no approval from the EPA and no development consent from Port Stephens Council. Geoff Robinson Pty Limited and Mr Robinson were order to pay a penalty of $13,400 and $10,050 respectively. Geoff Robinson Pty Limited and Mr Robinson were also ordered to pay the EPA's costs. Geoff Robinson Pty Limited and Geoffrey Allan Robinson were prosecuted by the EPA, a part of the Department of Environment, Climate Change and Water. This notice is placed by order of the Land and Environment Court and is paid for by the defendants Geoff Robinson Pty Limited and Geoffrey Allan Robinson.

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: 25 March 2011