Environment Protection Authority v Minto Recycling Pty Limited - [2019] NSWLEC 193 - NSWLEC 2019 case summary — Zoe

NSWNSWLEC

Environment Protection Authority v Minto Recycling Pty Limited

[2019] NSWLEC 193

Land and Environment Court (NSW)|2019-08-08|Before: Moore J, Mr P

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2019-08-08

Before

Moore J, Mr P

Catchwords

[2013] NSWLEC 185 Environment Protection Authority v Clarence Colliery Pty Ltd
[2006] NSWLEC 419 Environment Protection Authority v Wyanga Holdings Pty Ltd
Environment Protection Authority v Cauchi [2015] NSWLEC 78 Liversidge v Anderson [1941] UKHL 1
[1942] AC 206 Markarian v The Queen (2005) 228 CLR 357

Source

Original judgment source is linked above.

Catchwords

[2013] NSWLEC 185 Environment Protection Authority v Clarence Colliery Pty Ltd[2006] NSWLEC 419 Environment Protection Authority v Wyanga Holdings Pty LtdEnvironment Protection Authority v Cauchi [2015] NSWLEC 78 Liversidge v Anderson [1941] UKHL 1[1942] AC 206 Markarian v The Queen (2005) 228 CLR 357[2005] HCA 25 Muldrock v The Queen (2011) 244 CLR 120[2011] HCA 39 Plath v Rawson (2009) 170 LGERA 253[2009] NSWLEC 178 R v Olbrich (1999) 199 CLR 270[1999] HCA 54 R v ThompsonR v Houlton 49 NSWLR 383[2000] NSWCCA 309 R v Wickham [2004] NSWCCA 193 Secretary, Department of Planning and Environment v AGL Energy LimitedSecretary, Department of Planning and Environment v AGL Upstream Infrastructure investments Pty Limited [2017] NSWLEC 2 Veen v The Queen (1979) 143 CLR 458[1979] HCA 7 Veen v The Queen (No 2) (1988) 164 CLR 465

Judgment (64 paragraphs)

[1]

[2]

The Defendant's Statement of Admissions

Although there was not a Statement of Facts agreed to by both the Prosecutor and the Defendant, the Prosecutor tendered the Defendant's Statement of Admissions dated 21 June 2019 (Exhibit A). This provided the factual context for the matters giving rise to the charge being laid by the Prosecutor.
It is appropriate, for the purposes of understanding both this decision and the course that was followed during the sentencing proceedings, that this Statement of Admissions be reproduced in full. It was in the following terms: The Defendant 1 Minto Recycling Pty Ltd (ACN 608 599 935) is an Australian registered company and is a subsidiary of Bingo Industries Limited (ACN 617 748 231) (Bingo) within the meaning of section 46 of the Corporations Act 2001 (Cth). Environment Protection Licence 20638 2 The Defendant is the holder of Environment Protection Licence 20638 (EPL) which applies in respect of a premises located at Lot 1 DP 1013852, being 13 Pembury Road Minto NSW 2566 (Premises). 3 The EPL was transferred to the Defendant from Hlias Property & Consulting Pty Ltd (formerly Waste Transfer Stations Pty Ltd) on or about 1 February 2016. 4 The EPL permits the Defendant to carry out the activity of "waste processing (non-thermal treatment)", which is a scheduled activity as referred to and defined in sections 5 and 48 and Schedule 1 of the Protection of the Environment Operations Act 1997 (POEO Act). 5 The EPL permits the Defendant to receive only the following types of waste at the Premises for the activity of resource recovery: a. building and demolition waste, comprising concrete, masonry, tiles, ceramics, timber, plastic, glass, paper and cardboards; and b. scrap metal, comprising ferrous and non-ferrous material. 6 The EPL contains the following relevant condition: L2.3 - the total amount of waste received must not exceed 30,000 tonnes per annum. 7 Pursuant to condition R1 of the EPL, the Defendant is require to lodge an Annual Return to the EPA, which includes a statement of compliance with the conditions of the EPL, in respect of each reporting period. The reporting period for the EPL is the 12-month period between 25 November, being the Anniversary Date of the EPL, to 24 November the following year. The offence 8 The defendant has entered a pleas of guilty to an offence against s 64(1) of the POEO Act for the contravention of condition L2.3 of the EPL, in that the total amount of waste received at the Premises exceeded 30,000 tonnes in the year from 25 November 2016 to 24 November 2017 (inclusive) (Charge Period). 9 As part of its investigation, the EPA issued the Defendant with a notice under s 191 of the POEO Act, requiring it to provide the EPA with the weighbridge records for the Premises during the Charge Period. The weighbridge records show that the Defendant received 169,695.34 tonnes of waste at the Premises during the Charge Period, being 139,695.34 tonnes more than the total amount permitted under the EPL. The Premises 10 The Defendant is the lessee of the Premises pursuant to registered lease AM103829P. 11 The western boundary of the Premises is located adjacent to Bow Bowing Creek, which flows into the Georges River. 12 During the Charge Period, the process for receipt and transport of waste at the Premises included (without limitation) the following steps: a. incoming waste was delivered to the Premises in skip and hook bins and larger trucks including truck-and-dog combinations from various sources across Sydney. b. Upon entry to the Premises trucks were weighed in and inspected at the weighbridge (located approximately 20 metres from the entrance on Pembury Road). c. Trucks would then drive through the yard and reverse to the edge of the tipping shed, which is a semi-enclosed shed at the rear of the Premises facing the outdoor yard area. Waste would be tipped from the truck onto the floor and after tipping the trucks would exit the Premises onto Pembury Road via the same two way entry/exit. d. After the waste was processed and sorted on the Premises it was stockpiled in a semi-enclosed shed containing waste bays. The shed faces the outdoor yard area. e. Processed waste was collected from the Premises in B-Doubles, semi-trailers and truck-and-dog combinations. Trucks collecting the processed waste entered the Premises through the two way entry/exit point on Pembury Road. Processed waste was loaded onto the trucks parked in the yard area using dozers which moved between the stockpile of processed waste and the trucks parked in the yard to load the waste onto the trucks. f. Processed waste was transported from the Premises for either the purpose of reuse or landfill. 13 On 18 September 2017, the EPA commenced civil enforcement proceedings against the Defendant in the Class 4 jurisdiction of the Land and Environment Court seeking, amongst other things, orders to restrain the Defendant from receiving further waste at the Premises for the remainder of the reporting period; and, orders to restrain the Defendant from receiving more waste than it is licenced (sic) to receive the Premises for the 12-month reporting period commencing 25 November 2017. 14 On 26 October 2017, the hearing of the civil proceedings was vacated and the Court made orders by consent restraining the Defendant from receiving more than 30,000 tonnes of waste at the Premises: a. for the annual reporting period commencing on 25 November 2017 and ending on 24 November 2018; and b. for each subsequent annual reporting period, unless authorised by an EPL permitting otherwise. 15 The Defendant offered to and did pay the EPA's costs in the class 4 proceedings of $50,000.00. 16 The Defendant continued to receive waste at the Premises until 24 November 2017. The Defendant's reports of waste received during the Charge Period 17 As the operator and licensee of a licensed waste facility, each month the Defendant is required to lodge an online Waste Contribution Monthly Report (WCMR) to the EPA via the EPA's online Waste and Resource Reporting Portal (WARRP). Each WCMR contains information in respect of the previous month's operations, including the quantity and type of waste received at the Premises. 18 The Defendant report into the WARRP that the following amount of waste was received at the Premises: Annual Return for the reporting period: 25/11/2016-24/11/2017 19 On 16 January 2018, the EPA received the Defendant's Annual Return in respect of the reporting period 25 November 2016 to 24 November 2017 (being the Charge Period). 20 In its Annual Return, the Defendant identified non-compliance with condition L2.3 of the EPL.

[3]

The relevant legislative provisions

The legislative provisions requiring consideration in these sentencing proceedings are to be found in two statutes. The first of those is the POEO Act, whilst the second is the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act). There are a number of provisions of each statute which require consideration. I turn, first, to set out the relevant provisions of the POEO Act. The first of them is the provision creating the offence to which the Defendant has pleaded guilty. This provision, s 64(1) is in the following terms: 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) …. 1. The second provision, one which sets out the factors required to be taken into account when sentencing for a breach of the POEO Act, is s 241, a provision in the following terms: 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.
A number of other provisions of the POEO Act also arise for consideration in a quite confined context. It is not necessary to reproduce those provisions at this point, but they are set out at the appropriate point later in this decision.
The relevant provisions of the Sentencing Procedure Act are to be found, first, in s 3A which sets out the purposes for which sentencing is to be undertaken. This provision is in the following terms: 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.
The next relevant elements of the Sentencing Procedure Act are to be found in s 21A of this Act. This provision, relevantly, sets out the potential aggravating factors which might arise to increase the culpability of the Defendant. These are contained in s 21A(2). Other factors which require to be considered, concerning the Defendant and its conduct, are to be found in s 21A(3). The relevant elements of s 21A(2) and (3) requiring consideration in these proceedings are as follows: 21A Aggravating, mitigating and other factors in sentencing (1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters - (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law. (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows - (a) …, (b) …, (c) …, (ca) …, (cb) …, (d) …, (e) …, (ea) …, (eb) …, (f) …, (g) the injury, emotional harm, loss or damage caused by the offence was substantial, (h) …, (i) …, (ia) …, (ib) …, (j) …, (k) …, (l) …, (m) …, (n) …, (o) the offence was committed for financial gain, (p) …. 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 - (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, (b) …, (c) …, (d) …, (e) the offender does not have any record (or any significant record) of previous convictions, (f) …, (g) the offender is unlikely to re-offend, (h) …, (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), (j) …, (k) a plea of guilty by the offender (as provided by section 22 or Division 1A), (l) …, (m) assistance by the offender to law enforcement authorities (as provided by section 23), (n) …
The final provision of the Sentencing Procedure Act to which regard is to be had is to be found in s 22 of this Act. The relevant element of this provision reads: 22 Guilty plea to be taken into account for offences not dealt with on indictment (1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account - (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty, and (c) the circumstances in which the offender indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed.

[9]

The Prosecutor's EPA officer witnesses

Three EPA officers provided evidence in the Prosecutor's case. These witnesses were: 1. Mr Matthew Corradin, presently a Senior Operations Officer at the Newcastle office of the EPA. Mr Corradin was the Unit Head, Regional Waste Compliance Section, based at the Wollongong office of the EPA during the charge period. Various relevant documents were in an exhibit to his affidavit. This became Exhibit G. Mr Corradin was required for cross-examination. 2. Mr Marc Cooper, an Operations Officer in the Waste Compliance Section based at the Wollongong office of the EPA. Mr Cooper deposed three affidavits. They were dated 8 December 2017; 15 February 2018; and 2 July 2018. Various relevant documents were in exhibits to each of his affidavits. These became Exhibits H, J and K. Mr Cooper was not required for cross-examination. 3. Ms Sarah Sutton, the Unit Head, Waste Information Unit. Ms Sutton gave evidence concerning the provenance of various relevant documents from the EPA's records. These documents were in an exhibit to her affidavit. This became Exhibit L. Ms Sutton was not required for cross-examination.
Given the conclusions I have reached, for the reasons later explained, that the only factor of aggravation to be taken into account in this sentencing process arises from the fact that the Defendant's offending conduct was committed for financial gain, the substantive evidence (both written and oral), given on behalf of the Prosecutor by its officers, can be dealt with in a quite abbreviated fashion. In doing so, I mean no disrespect to either Mr Corradin or Mr Cooper.
It is sufficient to note, with respect to their evidence, that a number of broad propositions can be extracted. These are set out below (in no particular order): 1. Although the Prosecutor had received complaints concerning dust from the premises and some inspection activities had been undertaken of the premises, Mr Corradin was not aware of and had not had any investigations made concerning any other possible sources of dust in the locality of the site; 2. Although complaint investigations were undertaken by the Prosecutor during the charge, no enforcement action was taken against the Defendant for air or land pollution; 3. An inspection report prepared by Mr Cooper following a visit in March 2017 (approved by Mr Corradin) recorded general satisfaction with the operational standards on the site; 4. Mr Corradin himself had not observed any dust emissions from the Defendant's activities on the site and had observed the misting systems in operation; 5. A State Significant Development application had been lodged on 2 February 2017. This application proposed that a new limit of waste permitted to be accepted would be approved. This limit would be higher than the amount received during the charge period. An Environmental Impact Statement (EIS) was provided in support of the application. At a time some three months later, the Defendant sought to revise downward the volume of material sought to be permitted to be processed on the site from 300,000 tonnes to 220,000 tonnes; and 6. The Prosecutor had commenced a process of engagement with the Defendant that was envisaged could lead to approval of the Defendant's State Significant Development application but did not undertake a formal assessment of the Defendant's EIS.

[11]

Summary of lay witness affidavit evidence about dust

Set out below is a summary of the affidavit evidence of each of the lay witnesses concerning the dust which they considered was caused by or in conjunction with the activities of the Defendant at the site. Although traffic and parking issues are mentioned in this summary, they are later dealt with separately. The relevant source paragraph of the summarised material in each affidavit is identified in the summary. Name Affidavit date Evidence Since Minto facility has closed has noticed changes around Pembury Road [5]. This includes there no longer being a visible brown haze in the air or a daily accumulation of a fine layer of brown dust on cars in his yard. Previously had to wash cars and factory on a weekly basis to get rid of dust, which he no longer has to do [6]. Mark Jones 17 May 2018 Had considered moving business from Pembury Road, partially due to the dust and traffic issues faced at that location [8]. Prior to February 2018, and on top of washing down cars and factory weekly, also had to re-do paint work on cars on several occasions that had been ruined by fine dust particles costing several thousand dollars each time. Also worries about the effect of the dust on his son who works with him at factory [9]. Peter Kalandis 18 June 2018 Notes that the photos attached to his 2017 affidavit are behind Tab 2 of Exhibit PK-1 (Exhibit C) and are photos taken by him on 8 may 2017 at about 1pm of customer vehicles parked on his premises and coated in dust [4]. Since Minto took over the premises at 13 Pembury Road, and particularly since beginning of the year, the dust on Pembury Road has increased significantly [8]. Took a number of photos depicting dust on vehicles and in his workshop [8]-[11]. Since beginning of 2017 had to tell employees to spend time washing down client's cars because they get so dusty sitting in the driveway and workshop. Estimates a loss of labour of at least a few hours a week to washing vehicles because of dust [12]. The dust made his business particularly difficult as a vehicle servicer and engine builder, cannot afford to get dust into the engines he is working on [13]. At least twice in the last couple of months sent mechanics home early as dust was so bad could not work on vehicles [14]. Peter Kalandis 8 September 2017 (for earlier Class 4 proceedings but also relied on in these proceedings) Knows that dust is coming from Minto and the trucks carrying waste that enter that premises because has seen it coming off the trucks. Also has seen trucks and skips entering the 9b Pembury Road premises. Most trucks and skips have loads covered but not all do. Even with a cover on, if trucks hit a speed bump when turning into premises has seen clouds of dust fly off the load, especially when they are strong winds [15]. Over Christmas closed his business down for 3 weeks and when he came back on 9 January 2017 his workshop was completely coated in dust and it was on the road and driveway of his business [16]. Since beginning of the year, has been using eye drops as eyes more blood shot. Has lung cancer, had 2 lobectomies and fifty per cent lung capacity. When it is particularly dusty at workshop it becomes even harder for him to breathe [17]. Has made complaints to the EPA and Campbelltown City Council. Also has spoken to Dale Hall from Bingo Industries at least twice about dust and traffic. Recalls a Bingo representative came to his workshop about his complaints, however problem remains [18]. Prior to about late 2016 - early 2017 does not recall having a problem with dust on Pembury Road. Since that time has observed brown/tan coloured dust visible at Pembury Road - in the air, on vehicles and on the road itself [16]. During 2017 observed plumes of dust stirred up within confines of Minto's premises. On or around 20 July 2017 at approximately 2.40pm stood on Pembury Road outside number 13 looking down the driveway into Minto. Observed the front-loader at work in and near the sheds at the back of the premises, lifting up waste and moving it around. Observed dust rising up from the material as it was moved around. Took both video and photos of this and the dust on vehicles and the road [17], [19], and [20]. John Harris 17 May 2018 On windy days observed dust blowing around the street outside of the Minto terminal. Avoided going outside on windy days as dust was so bad. On such days, vehicles parked outside the Minto terminal were frequently coated in brown dust [18]. Between late 2016 and up to about late August-September 2017, recalled that Minto operated a street sweeper to drive up and down Pembury Road hosing down the dust on the road. Frequently would observe the street sweeper driving down the middle of the road and turning. The spraying of water from the street sweeper onto the dusty road made the road surface slippery and wet, and sometimes muddy [21]. Observed trucks leaving 13 Pembury Road with wet, muddy tyres, and the street sweeper driving behind the trucks and hosing down the dirt and mud which fell from the truck tyres onto the road [22]. Between the beginning of 2017 up until about late August 2017 used to see the street sweeper on the road every day [24]. On 15 July 2017 at approximately 9.40am took two photos of the street sweeper on Pembury Road, dust is visible on the cars parked on the side of the road [24]-[25]. When Minto closed noticed the cessation of brown dust collecting on cars parked in Pembury Road and on road itself. Also noticed since closure that even on windy days no brown dust flying around the street [33]. After Minto Recycling closed the dust and dirt on Pembury Road began to clear up quite quickly. Before there was dirt from Minto premises all the way to Airds Road. Used to see trucks with dirt attached exiting the Minto premises [9]. Anthony Patrick Carroll 17 May 2018 Only has to clean his work vehicle and service vans once a week since Minto closed as less dusty than when Minto was trading [10]. Had concerns for himself, wife and staff regarding the dust they were inhaling and its effects from when Minto was open [11]. Has found that some items in his factory which are not used very often or haven't been moved since Minto closed are still dusty. Gives example of insulated panels that were stored on the top of storage racks [12]. Russell Kenneth Findlay 17 May 2018 Since facility shut down in February 2018 there is still some dust in street but not nearly as bad as the dust problems from previous year [7]. 8 September 2017 Increase in dust around office site since a year and a half ago. Parks new car under his building in an under-cover garage and by end of each day car is cover in dust and leads to him washing his car twice a week because of this. Notices dust also on his employees cars and also noticed on his previous car [8]-[9]. Russell Findlay (for earlier proceedings) Has seen plumes of dust coming from the open yard area at Minto and blown in the wind out onto Pembury Road [10]. Minto has a street sweeper which he has seen being operated up and down Pembury Road. It sprays water onto Pembury Road as it goes up and down the street. Because of all the dust in the air, the street sweeper creates mud on the street by spraying the dust with water [11]-[12].

[16]

Air pollution

Causing air pollution gives rise, relevantly, to two specific potential offences and relevant causation matters. Three sections of the POEO Act are potentially here relevant. They are ss 124, 126 and 127. These provisions are in the following terms: 124 Operation of plant (other than domestic plant) The occupier of any premises who operates any plant in or on those premises in such a manner as to cause air pollution from those premises is guilty of an offence if the air pollution so caused, or any part of the air pollution so caused, is caused by the occupier's failure: (a) to maintain the plant in an efficient condition, or (b) to operate the plant in a proper and efficient manner. 126 Dealing with materials (1) The occupier of any premises who deals with materials in or on those premises in such a manner as to cause air pollution from those premises is guilty of an offence if the air pollution so caused, or any part of the air pollution so caused, is caused by the occupier's failure to deal with those materials in a proper and efficient manner. (2) In this section: deal with materials means process, handle, move, store or dispose of the materials. materials includes raw materials, materials in the process of manufacture, manufactured materials, by-products or waste materials. 127 Proof of causing pollution To prove that air pollution was caused from premises, within the meaning of sections 124-126, it is sufficient to prove that air pollution was caused on the premises, unless the defendant satisfies the court that the air pollution did not cause air pollution outside the premises.
In addition, there is a relevant definition to be considered, one to be found in the dictionary to the POEO Act. This definition is in the following terms: air pollution means the emission into the air of any air impurity.
In addition, there is nothing in Pt 5 Air impurities emitted from activities and plant of the Protection of the Environment Operations (Clean Air) Regulation 2010 that would operate to protect the Defendant should it have been charged with any air pollution offence arising from dust allegedly emitted from the site and caused by the Defendant's activities on the site.

[19]

The conundrum arising for consideration Introduction

The rhetorical question requiring consideration, in this metaphysical sense, is "How can something which is not air, water or land pollution give rise to a finding of substantial environmental harm in these circumstances?" The Prosecutor's position
The Prosecutor's position is, in very brief summary relevant to this immediate consideration, that the depositing of dust on the road and on premises in the vicinity of the site (including vehicles parked nearby - whether parked in the street or on nearby premises being irrelevant for this consideration) constituted environmental harm and that that harm was substantial in a fashion warranting a finding of aggravation.
However, the Prosecutor has not charged the Defendant with air, land or water pollution and has expressly disavowed any proposition that a finding of aggravation could be founded on the conclusion that any or all of these potential statutorily defined bases for establishing pollution could be relied upon for this purpose.
The Prosecutor's position, in this regard, was made expressly clear on a number of occasions during the course of the hearing. This can be seen from a number of extracts from the transcript where the Prosecutor's position was explained. These elements were set out in Annexure A to the Defendant's closing submissions. These are lengthy and it is not appropriate to reproduce them at this point. However, the full terms of the annexure to the Defendant's closing submissions is reproduced as Annexure B to this decision. The Defendant's position
The position advanced by Mr Larkin concerning the question here discussed is that, in light of the Prosecutor's disavowals, there is no rational basis upon which a finding of substantial environmental harm would be able to be made. Answering the conundrum
I have earlier noted that I rejected a pre-trial submission on behalf of the Defendant concerning the potential application of the exclusionary principle in De Simoni. It is not necessary to revisit the conclusion I reached, and my explanation for it, in that earlier decision.
It is, however, necessary now to consider whether there is any proper basis to conclude that it is logically possible for the Prosecutor to propose that I should make a finding of substantial environmental harm against the Defendant in circumstances where the Prosecutor has expressly disavowed any reliance on an assertion that the Defendant has caused air, land or water pollution as a conduct consequent of its breach of the relevant condition of its EPL.
For the purposes of my consideration of this metaphysical conundrum, issues relating to water pollution (or the potentiality for engagement of this concept) can be set aside. The same cannot be said for the concepts of air and land pollution.
To explain the fascinating conundrum with which I am faced, it is to be observed that there is absolutely no doubt that significant and substantial elements of dust were deposited on the road and premises (in what might be described at an appropriate level of generality) at the locality of the site.
For the purposes of this consideration, the question of whether causal links to the site, in a proper evidentiary sense, have been established does not require analysis. That discussion is in the next section of this decision.
What now requires consideration is the creation of the presence of the dust, in a metaphysical sense, given the position that the Prosecutor proposes - that the deposited dust should be regarded as causing substantial environmental harm.
First, dust that causes substantial environmental harm cannot, on the Prosecutor's semantic logic, have been caused by its airborne transmission to the location where the various witnesses have observed its presence. This must necessarily be the case because, if it was transmitted by air, that would constitute air pollution and the Prosecutor has expressly disavowed any assertion that the Defendant has caused air pollution.
Similarly, the Prosecutor has expressly disavowed any proposition that the presence of the dust, where it has been deposited, constitutes land pollution.
In Lewis Carroll's Through the Looking-Glass, Humpty Dumpty is recorded as saying: "When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean - neither more nor less."
In Liversidge v Anderson [1941] UKHL 1; [1942] AC 206, at 245, Lord Atkin cited this passage with approval when discussing what he considered was a forced and unrealistic approach to construction of words.
The approach is here equally applicable. How can a substance, transmitted by air but not causing air pollution, and deposited on surfaces, but not causing land pollution when so deposited, cause substantial environmental harm?
Humpty Dumpty might say that it can but, for the legal purposes here engaged, I cannot. The proposition advanced by the Prosecutor is a nonsense.
However, despite that conclusion, it is now appropriate to consider - against the possibility that the above conclusion is in error - whether the Prosecutor's position concerning factual causation or existence of substantial environmental harm from the dust deposits could be regarded as being established beyond reasonable doubt.

[22]

Introduction

Mr Larkin cross-examined witnesses on factors potentially relating to causation of dust in the locality of the site. In summary, three matters could be regarded as providing the underpinning foundations for this cross‑examination. These were: 1. The existence and operation of a dust suppression misting system on the site. This misting system, when operating, emits a spray of very fine droplets of water designed to attach to, and cause the depositing of, fugitive dust particles. This misting system, relevantly, was located along the upper portion of the outside wall of the waste receival shed on the site. The evidence established that, when operating, water mist from this system was able to be observed from the street looking down the access driveway into the site; 2. A landscape supply business operated from 5 Pembury Road for at least a significant portion of the charge period. The photographic evidence showed that some elements of the bulk landscaping supplies elements of this business were uncovered and were comparatively proximate to the entrance to this business from Pembury Road. These premises are located some 150 metres to the east of the site; and 3. The existence of a road-base-making enterprise (known as Fulton Hogan) with its frontage being to Airds Road. The materials' stockpiles and processing plant on the Fulton Hogan premises are some 150 metres to the south of Pembury Road behind the site of the landscape supply business.
The questioning not only went to the issues of emission of the dust but also to matters relating to tracking of the dust in Pembury Road.
Self-evidently, these lines of questioning were designed to seek concessions concerning causation from the witnesses and to provide a proper foundation to advance the proposition, subsequently, on behalf of the Defendant that the Prosecutor had not proved, beyond reasonable doubt, that any or all of the dust deposited in the locality had been caused by the activities of the Defendant on the site.

[23]

Summary of concessions from lay witnesses

I set out below a table containing the details of, and source location for, the various matters arising from the evidence of the Prosecutor's lay witnesses that I am satisfied should bear on my consideration of whether or not, as a purely factual matter, the Prosecutor has established that dust emitted from the site caused substantial environmental harm. Lay Witness Concession Transcript Reference Mark Jones - That there are many other dust sources apart from Minto Recycling in the immediate area of Pembury Road Transcript, 28 June 2019, page 94, lines 46-47 - That dust is being tracked in and out of the logistics company property opposite his Transcript, 28 June 2019, page 96, lines 37-42 - Could not say with certainty where any individual piece of dust came from, and didn't believe anyone would be able to do so Transcript, 28 June 2019, page 98, lines 38-41 - That he could not identify with certainty the origin of the dust on vehicles on Pembury Road Transcript, 28 June 2019, page 99, lines 21-24 - Many of the trucks that were stationary and queuing outside Minto property did not bear the logos of Bingo or any Bingo companies Transcript, 28 June 2019, page 100, lines 19-31 Peter Kalandis - That the tracks of vehicles going in and out of 5 Pembury Road (landscape supplies business) tracked dust and vehicles came in and out of that address often Transcript, 2 July 2019, page 129, lines 6-24 - Accepts that there are other sources of dust apart from Minto Recycling Transcript, 2 July 2019, page 168, lines 19-21 - Accepts the difficulties ascribed to Minto Recycling trucks in affidavit isn't accurate (Prosecutor clarifies in re-examination witness meant "Bingo" trucks, Transcript, 2 July 2019, page 169, lines 30-33) Transcript, 2 July 2019, page 168, lines 23-31 John Harris - Had not sought to locate any other potential sources of dust in Pembury Road other than Minto Recycling Transcript, 2 July 2019, page 184, lines 16-22 - Accepts landscape supply business as a source of dust which might arrive on Pembury Road Transcript, 2 July 2019, page 184, lines 26-35 - Accepts that if misters were doing their job, unlikely dust would have left the shed Transcript, 2 July 2019, page 198, lines 1-8 Anthony Patrick Carroll - Accepts that in Pembury Road there are a large number of businesses that generate truck movements Transcript, 3 July 2019, page 232, lines 3-5 - Accepts that he does not know how some of the dust got into Pembury Road Transcript, 3 July 2019, page 237, lines 44-46 Russell Kenneth Findlay - Accepts that he has not stood there and worked out if trucks on Pembury Road are going into Minto Recycling or not Transcript, 3 July 2019, page 271, lines 13-15 - Accepts that it is likely that some of the trucks in Pembury Road were not going into Minto Recycling Transcript, 3 July 2019, page 271, lines 32-35 - Accepts could not recall date or dates upon which he saw plumes of dust Transcript, 3 July 2019, page 238, lines 9-16

[26]

The Defendant's Further Statement of Admissions

During the course of the hearing, the Defendant tendered a Further Statement of Admissions dated 4 July 2019. This became Exhibit 4. In effect, these admissions were a concession that the factor of aggravation in s 21A(2)(o) of the Sentencing Procedure Act was no longer contested. It is appropriate to set out the terms of this document in its entirety: 1 The Bingo group of companies' (Bingo Group) operates a network of resource recovery and recycling centres across NSW and Victoria, including ten waste processing centres in the Sydney area as well as waste collection and transportation businesses. 2 At all relevant times, the Defendant is and has been a wholly owned subsidiary of Bingo Industries Ltd ACN 617 748 231 (Bingo Industries). 3 At all relevant times, Bingo Equipment Pty Ltd is and has been a wholly owned subsidiary of Bingo Industries and owns all of the equipment including trucks that are deployed around the Bingo network and to locations as needed. 4 During the period of 25 November 2016 to 24 November 2017 (the Charge period): a. the Defendant's operations at 13 Pembury Road Minto NSW (Premises) generated revenue for the Bingo Group (but not the Defendant) through gate fees charged on incoming waste from unrelated third-party external customers to the Premises and from the sale of recovered material to unrelated third party external customers. b. there was sufficient capacity to process all of the waste received at the Defendant's Premises at other facilities within the Bingo Group's network of waste processing and recycling centres, thereby ensuring that the revenue earned as indicated in the preceding paragraph would have still been earned by the Bingo Group. 5 The commission of the offence resulted in a financial benefit to the Bingo Group in the range of $306,626 and $816,885 (before tax) or $229,102 to $586,283 (after tax). This was in the form of a saving on waste transportation costs to other processing and recycling centres within the Bingo Group's network. 6 In addition to this, 494 tonnes of waste were received at the Premises by the Defendant during the Charge Period from cash on delivery customers, generating an additional financial benefit of $20,662 (before tax) or $14,463 (after tax) to the Bingo Group (and not the Defendant). Had the Defendant only accepted 30,000 tonnes of waste at its Premises during the charge period, this revenue would have been lost to the Bingo Group. 7 During the Charge Period, there were waste related truck movements into and out of the Premises as follows: Month Truck movements moving waste into the Premises (trucks operated by the Bingo Group) Truck movements moving waste out of the Premises From 25 November 2016 448 (136) 154 December 2016 2092 (620) 595 January 2017 1885 (514) 585 February 2017 2137 (429) 557 March 2017 2284 (562) 631 April 2017 1556 (455) 568 May 2017 2365 (498) 681 June 2017 1565 (336) 350 July 2017 1789 (358) 470 August 2017 1781 (122) 274 September 2017 1657 (286) 628 October 2017 1612 (306) 391 Up to 24 November 2017 1442 (392) 412 Total 22,613 (5,014) 6,296

[30]

The Prosecutor's position

The position advanced by the Prosecutor was that two aspects of truck movements, arising from the acceptance by the Defendant of significantly higher volumes of waste on them were permitted by the EPL, caused impacts that warranted being regarded as a further factor of aggravation. The first of them related to the practice of removing the legally required load covering (such removal being known as "untarping") by truck drivers in the street when they were queued prior to entry to the site. Although this was not a universal practice, there was evidence from the Prosecutor's lay witnesses that this occurred on a significant number of occasions.
It is unnecessary to set out that evidence in any detail as it was not disputed for the Defendant. This untarping constituted an activity which the Prosecutor relied upon on the question of harm caused by dust but is also equally a matter potentially to be considered as an element of the traffic congestion issues pressed by the Prosecutor.
The Prosecutor's position concerning impacts in the locality caused by additional queuing and, thus, street congestion, caused by the increased truck movements to the site as a consequence of the very large volume of material accepted in breach of the EPL condition, was succinctly set out in the Prosecutor's written submissions (at [9] and [10]) as set out below: 9 The operation of the Premises at a throughput rate of approximately 169,695 tonnes during the charge period generated additional truck movements in and out of the facility each trading day, causing increased congestion on Pembury Road. 10 There were instances during the charge period where the increase in vehicles associated with the Premises caused inconvenience to occupiers of other premises on Pembury Road in the vicinity of the Premises, in the following ways: a. trucks waiting to enter the Premises weighbridge queued onto Pembury Road and across neighbouring properties' driveways, including on occasion by double parking; b. reduced availability of street parking due to the increase in traffic and trucks on Pembury Road associated with the Premises; c. trucks, including B-Double trucks, used the cul de sac in Pembury Road to make turning circles, causing a safety hazard to other road users.

[31]

The Defendant's position

The Defendant's answer to the complaints about untarping and queueing in the street can be succinctly shown at [178] to [191] of the Defendant's written closing submissions. These are set out below: Untarping vehicles before arriving at the Minto facility 1 Some of the civilian witnesses complained about trucks untarping their loads on the approach to the Minto facility, rather than in the confines of the yard. 2 The Defendant should not be held liable for the unpermitted actions of vehicles from unrelated organisations. 3 At the entrance of the Minto facility there is a sign that clearly states "No untarping outside gates". 4 There was no evidence that the trucks allegedly untarping outside of the premises were Bingo branded trucks. 5 The photographs put into evidence from the civilian witnesses were unbranded trucks. 6 In any event, it is common ground that those trucks are owned by a separate, albeit related entity, Bingo Equipment Pty Ltd. Double parking vs queuing in traffic 1 Some of the civilian witnesses also complained of trucks queuing and double parking in Pembury Rd. Those terms were used interchangeably despite having different meanings. 2 For example, Mr Jones described the activity of the trucks as "double parking" in his September 2017 affidavit. He clarified in cross-examination that what he meant was that those trucks were "stationery and queueing". Mr Jones also accepted that the trucks that he had observed that were stationery and queueing did not bear the logos of Bingo or any Bingo company. 3 Double parking is an offence by virtue of section 189(1) of the Road Rules 2014, which prohibits a driver from stopping on a road if to do so would put any part of the vehicle that he or she is driving between a vehicle that is parked on the road and the centre of the road. 4 In the Road Rules "stop" is defined as "in Part 12 and for a driver, includes park, but does not include stop to reverse the driver's vehicle into a parking bay or other parking space". According to the evidence, the trucks were not parked, they were in a line of traffic. Queuing in a line of traffic is plainly not intended to be caught by the concept of double parking. 5 Parking on the side of a road or on a median strip is excluded from the offence by section 189(2). 6 The Prosecutor Said, "we don't say that we can prove that a [road] rule was being breached …". 7 The Prosecutor said he "believed" that there was only one instance that may be an exception, that is, as contained in Mr Findlay's evidence. This was on one occasion when Mr Findlay said trucks were blocking both sides of the street and he had to ask them to move. 8 In any event, queuing traffic is lawful and does not constitute environmental harm.

[33]

The State Significant Development application process and the EPA response

Many activities took place during the charge period concerning a State Significant Development application made by the Defendant, an application which sought to increase the permitted waste receivable levels at the site significantly beyond the receivable levels which have given rise to the charge underpinning these proceedings.
Although the State Significant Development proposal underwent a deal of refinement during the course of the charge period and the course of its consideration by the relevant consent authority, I am satisfied that nothing of this detail warrants specific consideration.
It is also to be observed that, although approval has been granted to this application, at least at the time of conclusion of this hearing, that approval had not been acted upon. Although, as also elsewhere noted, the relevant position was that, at the conclusion of the hearing, the site was no longer trading and the Defendant had indicated to the Prosecutor that it proposed to surrender its EPL, the State Significant Development approval, being a development consent, is one which is granted in rem and will continue for the site whether or not the site is operated by this Defendant.
To the extent that State Significant Development application does require consideration, it is on an extremely limited basis, a basis which does not require detailed analysis of the EPA officers' evidence or any documentary exchanges between the Defendant's employees, consultants or legal advisers and the Prosecutor or any correspondence from the Prosecutor to the Defendant.
This is because, although there had been elements of shifting in the timing of the expected determination of the State Significant Development application and, at least by inference, a modest degree of forbearance on behalf of the Prosecutor in taking criminal proceedings against the Defendant, this is a factor which, if satisfied, can only play a very limited role in my sentencing consideration. This is because the Defendant knowingly continued with its unlawful conduct in a fashion where the making of a State Significant Development application provided no cloak of respectability or permissibility for such unlawful conduct.
The fact that the Defendant had expert reports in support of its State Significant Development application, reports which concluded that there would be no adverse environmental impacts arising from such an expanded operation if it was to be approved, also does not provide assistance to the Defendant in any sense providing justification for its breach of the limiting provision in its EPL.
Indeed, it is to be observed that the operational circumstances that would necessarily apply when (and if) the State Significant Development consent is acted upon require significantly varied physical operating facilities on the site, facilities imposing greater environmental controls than presently exist (or existed during the course of the charge period).
Whether or not there was, for some element of the charge period, a Nelsonian element to the Prosecutor's conduct, this cannot act to excuse the deliberate, continuous and wilful breach by the Defendant of the specific limits set by the EPL to constrain the Defendant's activities on the site.

[39]

General

The fourth relevant factor is that in s 21A(3)(i) of the Sentencing Procedure Act as to whether the Defendant "has shown remorse for the offence".
It was proposed to me that the Defendant's contrition was evidenced by (written submissions at [240]): (a) its guilty plea; (b) its unilateral notification of the breach; (c) its early and continued attempts to regularise the position; and (d) its co-operation with the EPA (including in relation to the class 4 proceedings and including the payment of costs of the class 4 proceedings).
In Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419, Preston CJ explained why remorse is better demonstrated through "the offender taking actions" rather than "offering smooth apologies" (at [203]).
However, apologies are also an element of contrition and remorse - indeed, a necessary precursor to a genuine expression of contrition and remorse. Although Mr Buffier, a director of the Defendant's parent company (the Bingo Group) was in Court during the sentencing hearing, he gave no evidence and thus cannot be taken to be displaying the Defendant's regret at its offending conduct.
Of the above factors, the first is not one, in my view, demonstrating contrition but is merely an acknowledgement of reality. The Defendant obtains a specific sentencing benefit (later discussed for this).
The second factor is one of minor import under this head of consideration. This is because of the Defendant's obligation to furnish returns on a regular basis to the Prosecutor of the tonnages of waste received. These statutorily required returns would have disclosed the breach without specific "fessing up" by the Defendant.
The question of the Defendant's endeavours to regularise its unlawful activities through a State Significant Development application does not assist in my assessment of this factor, given that the Defendant continued to operate in breach of its EPL throughout the charge period and in a fashion clearly in its own corporate self-interest. The question of cooperation with the Prosecutor is a matter of separate assessment arising under s 21A(3)(m) and is later dealt with under that heading.
I am not satisfied that the Defendant is to be regarded as having expressed any contrition and remorse for its unlawful conduct. It is certainly not, in my view, to be regarded as a factor weighing in its favour.

[40]

Assistance to the Prosecutor

The fifth relevant factor is that in s 21A(3)(m) of the Sentencing Procedure Act as to the extent to which the Defendant has provided assistance to the Prosecutor.
The Defendant proposes that I should have regard to a number of factors which it submits demonstrate that the Defendant has appropriately provided assistance to the Prosecutor. The matters pressed on the Defendant's behalf were set out in its written submissions on penalty at [27] to [49]. It is not necessary to quote this passage.
These submissions can be dealt with comparatively briefly: 1. First, it is submitted that the Defendant provided the Prosecutor with its annual return for the reporting period which is the subject of this charge. It was put on behalf of the Defendant that: In its annual return, the Defendant identified non-compliance with condition L2.3 of the EPL. There was no attempt by the Defendant to hide or obfuscate the breach. This may be accepted to be true. However, in this regard, the Defendant was merely meeting its mandated statutory responsibility to provide this information. Indeed, had it attempted to hide or obfuscate the breach, it could well have been prosecuted for a separate offence. Failure to commit a criminal act cannot, in any way, be regarded as something that weighs in the Defendant's favour. 1. Second, the Defendant says it assisted the Prosecutor by providing weighbridge records ordered to be provided by a statutory notice. A similar position to the first matter pleaded applies with respect to the provision of all weighbridge records. Failure to do so would, in itself, have constituted a separate breach of the POEO Act. Again, failing to commit another offence cannot, in any way, be regarded as being assistance to the Prosecutor. 2. Third, I have earlier dealt with the question of the lack of utility of the State Significant Development application as a factor weighing, generally, in the Defendant's favour. As well as that general position as earlier discussed, although I accept that there may have been elements of forbearance, I am unable to accept that this weighs in the Defendant's favour. To the extent that the Defendant relies on comments by Sheahan J at [158] in Environment Protection Authority v Wyanga Holdings Pty Ltd; Environment Protection Authority v Cauchi [2015] NSWLEC 78 (Cauchi), it would appear that his Honour did not draw a distinction between the role of the Environment Protection Authority as a regulator and its separate role as a Prosecutor. I discuss this further below in the context of the earlier Class 4 proceedings being settled. However, it is sufficient for this point to note that attempting to regularise a position, whilst continuing, wilfully, to remain in breach of the licence condition in the EPL that gave rise to these proceedings cannot, in any sense, in my view, be regarded as "providing assistance" to the Prosecutor.

[41]

The earlier, settled Class 4 proceedings

At [13] to [15] of the Defendant's Statement of Admissions dated 21 June 2019 (Exhibit A) earlier reproduced, the outcome of separate Class 4 proceedings commenced by the Prosecutor against the Defendant concerning waste received volumes was earlier set out. It is appropriate to reproduce those paragraphs at this point. They were in the following terms: 13 On 18 September 2017, the EPA commenced civil enforcement proceedings against the Defendant in the Class 4 jurisdiction of the Land and Environment Court seeking, amongst other things, orders to restrain the Defendant from receiving further waste at the Premises for the remainder of the reporting period; and, orders to restrain the Defendant from receiving more waste than it is licenced (sic) to receive the Premises for the 12-month reporting period commencing 25 November 2017. 14 On 26 October 2017, the hearing of the civil proceedings was vacated and the Court made orders by consent restraining the Defendant from receiving more than 30,000 tonnes of waste at the Premises: (a) for the annual reporting period commencing on 25 November 2017 and ending on 24 November 2018; and (b) for each subsequent annual reporting period, unless authorised by an EPL permitting otherwise. 15 The Defendant offered to and did pay the EPA's costs in the class 4 proceedings of $50,000.00.
The settlement of the earlier Class 4 proceedings is a matter, in my view, entirely irrelevant to my consideration of the extent to which the Defendant may have given assistance to the Prosecutor in the context of s 21A(3)(m) of the Sentencing Procedure Act.
Given the evidence in these proceedings concerning the volumes of waste received by the Defendant in breach of its EPL conditions, the only conclusion inevitable to be drawn, with respect to the Class 4 proceedings, is that those regulatory proceedings (not conducted by the Environment Protection Authority in its capacity as Prosecutor of these proceedings, but in its regulatory capacity), had the Defendant contested those proceedings, would have failed on the documentary evidence contained in its own records.
To suggest that a perfectly rational forensic decision, obviously made on behalf of the Defendant to settle those Class 4 proceedings facing the inevitability of defeat, should be regarded as something for which the Defendant should receive some "big tick" or "pat on the back" for the purposes of these proceedings is an absurdity.

[46]

Fitting the offence in a range of seriousness

Although the POEO Act sets out the statutory maximum penalty defined for the offence, it is necessary to consider whereabouts in a range of offending conduct the breach to which the Defendant has pleaded guilty should be regarded as falling. This assessment is necessary to take account of the fact that the legislature has, in determining the maximum penalty for such offences, reflected the seriousness with which the community regards breaches of this legislative provision. This process is descriptive and is not one of mathematical precision.
Nor is it appropriate to endeavour to consider how the facts in a particular instance might relate to the "worst case", as it is always possible to hypothesise some instance that might be regarded as worse than that under consideration in the particular proceedings. It is sufficient to consider what might be the broad category within which an offence should be regarded as falling (Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 (Veen (No 2) at [15]).
The range within which the offending conduct might fall is defined by the maximum of the range of the penalties created by the statute and how the pertinent objective factors play together.
I observe that the Prosecutor proposed that I should conclude that the Defendant's offending conduct should be characterised as being "within the high range" (Prosecutor's submissions on penalty at [62]).
On the other hand, the Defendant submitted (outline of closing submissions) that I should conclude that: The offence is in the low to moderate range of the spectrum of objective seriousness. In any event, it is clearly less objectively serious than the offending in Cauchi.
My assessment in this regard is to be informed entirely by the objective factors of the Defendant's offending conduct (Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]).
Weighing all the objective factors, and having particular regard to the sole factor of aggravation (financial gain) proved by the Prosecutor, I have concluded that it is appropriate to characterise it as being at the top of the low range of objective seriousness.

[47]

Evenhandedness

Whilst each sentencing process must be undertaken in light of the specific facts and circumstances of the offending conduct, nonetheless, regard must be had to such guidance as may be obtained from such other cases as might have some degree of comparability with the offending conduct to be assessed (Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd (2013) 199 LGERA 236; [2013] NSWLEC 185). This is to ensure the sentence imposed is not inconsistent with the general pattern of sentencing for offences of the kind here being considered where such comparable sentencing information is available.
In doing so, it is relevant to note that the use of such comparative material does not provide some basis for a purely mathematical analysis to be derived for the exercise of my sentencing determination.
There are three cases to which it is appropriate that I give, at least initially, some consideration on this point. The first is a decision given by Sheahan J on 29 July 2019 in Environment Protection Authority v Mortdale Recycling Pty Ltd [2019] NSWLEC 106 (Mortdale) when he determined that the appropriate penalty for exceeding a 30,000 tonnes of waste receivable licence condition by an amount of nearly a further 30,000 tonnes was $30,000.
Although questions of financial gain are mentioned in his Honour's decision, for example at [109], it would appear that his Honour was not expressly asked to make a finding that financial gain was an aggravating factor of the commission of the offence and he did not do so. It is also the position that the extent of the offending conduct here engaged in by this Defendant is of far greater volumetric significance than arose in Mortdale. I find this decision of little assistance in the present circumstances.
The Prosecutor also relied on two further cases that it described as "(partially) comparable" (Prosecutor's submissions on penalty at [76] to [80]).
The first of the further cases proposed by the Prosecutor was another decision of Sheahan J. This was Cauchi - this case involved a quarrying operation where the breach of the licence condition related to permitted annual extraction limits on the winning of rock material from the quarry. The facts and circumstances of those proceedings involved significant differences in the nature of the activities that occasioned the breach.
The second further case pressed by the Prosecutor as potentially comparable was Environment Protection Authority v Custom Chemicals Pty Ltd [2016] NSWLEC 146. In this case, Preston CJ was dealing with a defendant which had no EPL and was charged with a specific water pollution offence, circumstances markedly different to those involved with the offending conduct of this Defendant.
The cases noted above demonstrate that there has been a variety of starting penalties and discounts on them for the idiosyncratic facts and circumstances of each circumstance of offending conduct where the prosecution has been for the breach of a licence condition.
Given the nature of this Defendant's offending conduct, combined with the factor of aggravation here established and, for Bentley and Cauchi, the industries in which the conduct arose, these cases provide negligible assistance in assessing where in the sentencing range this offending conduct should be placed.

[56]

Publication order

The Prosecutor sought a publication order pursuant to s 250(1)(a) of the POEO Act. Although the Defendant initially resisted the making of a publication order, I made some observations (Transcript, 5 July 2019, page 418, line 11 to page 419, line 13) concerning the content of, and obligations attaching to, the potential making of a publication order.
On 8 August, Mr Larkin indicated the Defendant's final position on the making of a publication order (Transcript, 8 August 2019, page 454, lines 6 to 18): We don't oppose the making of the order subject to two matters. Firstly, the changes as to page numbers that your Honour contemplated at p 418 of the transcript, so your Honour suggested - this is about line 33 - 11 to 13 of the financial review of the Daily Telegraph, et cetera. Now, there is one matter. The publication inside waste, I'm instructed is not going to be published again until - we think - October. In any event, we need to adjust the form of the order to allow for the fact that there won't be a publication any time soon. We don't oppose the making of it in principle. HIS HONOUR: Next edition is - LARKIN: Yes, we'd be content with that.
Obviously, the terms of the publication order are necessarily contingent on the findings that I have made in these proceedings. The orders sought by the Prosecutor concerning publication were in the following terms: The Offender is, at its own expense and within 28 days of the date of this order, to cause a notice in the form of Annexure A to this order to be placed within the first 11 pages of the following publications, at a minimum size of 12 cm x 15 cm, pursuant to section 250(1)(a) of the POEO Act: a. Australian Financial Review; b. The Daily Telegraph; c. Campbelltown-Macarthur Advertiser; and d. Inside Waste. 4 The Offender is, within 28 days of the date of this order, to cause a notice in the form of Annexure A to this order to be placed on the website https://www.bingoindustries.com.au/news pursuant to section 250(1)(a) of the POEO Act. 5 Within 35 days of the date of this order, the Offender must provide to the Prosecutor a complete copy of the pages of the publications an website in which the notices have appeared pursuant to Order 3 and 4. 6 The Offender is to cause a notice in the form of Annexure A to this order to be placed in the Annual Report of Bingo Industries Ltd published to the Australian Stock Exchange pursuant to section 250(1)(a) of the POEO Act.
The notice that the Prosecutor proposed I order be published was in the following terms: Annexure A Minto Recycling Pty Ltd convicted of breaching its environment protection licence and ordered to pay [insert total amount of fine] Minto Recycling Pty Ltd (Minto), a wholly owned subsidiary of Bingo Industries Ltd, has been convicted and been ordered to pay to the Environmental Trust the sum of $[insert total amount of fine] by the Land and Environment Court of NSW for breaching a condition of its Environment Protection Licence (Licence) issued by the Environment Protection Authority (EPA). The Licence authorised Minto to receive and process up to 30,000 tonnes of waste at Minto's premises at 13 Pembury Road Minto NSW 2566 in the period 25 November 2016 to 24 November 2017. However, in that time, Minto received and processed 169,695.34 tonnes of waste in contravention of its Licence. As a result of Minto unlawfully receiving and processing 139,695.34 tonnes of waste in excess of the Licence limits, it generated excessive dust and traffic movements that caused real inconvenience and harm to Minto's neighbours. Additionally, as a result of the offence, Minto derived financial benefits in the approximate amount of $[insert amount based on the Court's finding of financial benefits derived]. On [date to be inserted] the Land and Environment Court convicted Minto of an offence against s. 64(1) of the Protection of the Environment Operations Act 1997 for contravening a condition of its Licence and ordered it to:
Pay an amount of $[insert total amount] to the Environmental Trust in lieu of a fine;
Pay the EPA's legal costs; and
Publish this notice in the Australian Financial Review, the Daily Telegraph, the Campbelltown-Macarthur Advertiser, Inside Waste magazine and on the website of Bingo Industries Ltd website and the Annual Report of Bingo Industries Ltd published to the Australian Stock Exchange.

[62]

ANNEXURE B Set out below in full is Annexure A to the Defendant's closing submissions. Concessions made by the Prosecutor No Reference Concession (statements by the Prosecutor - unless stated otherwise) 1 T.30.20-26 This is where we say we're at odds with my learned friend's application. There is no finding pressed by the prosecutor that the offending conduct caused air, water and/or land pollution. That's not a finding that's pressed upon your Honour to make. That's not a finding that's pressed upon your Honour to make. The circumstances in our submission are available to be put before your Honour to make findings although your Honour may have to tread carefully in certain respects but to make findings as to the environmental harm that occurred in this case. 2 T.30.28-30 We don't say that whatever your Honour may find, we don't ask that your Honour even consider whether it amounts to "land pollution" or "water pollution" or "air pollution" and we don't suggest that it does. 3 T.30.37-43 Here, his Honour says, "The reasoning set…not been charged." This goes back to this point about air pollution, land pollution, and water pollution. There are not findings that we're asking your Honour to make. My friend is saying that you would make them. If anyone is to lead your Honour into error, it's my friends application. We don't want those findings to be made. Now, if I can turn to what is the more serious offence that is put against us on the application, that's 1161 of the PEOA Act. ENGLISH: There's no evidence that it degraded land, and I'll take your Honour to that. 4 T.31.4-9 HIS HONOUR: No, but you're not submitting that it causes land pollution. ENGLISH: Correct. 5 T.32.9-12 Your Honour, the distinction I seek to draw is that the land, point one, needs to be degraded, and then through the degradation of the land must result actual or potential harm to human health, or the safety of human beings, animals or other extra-terrestrial life. Now, the dust fell from the air into ‑ some witnesses claims ‑ irritated their lungs and eyes, has nothing to do with degradation of the land. It's a completely separate fact that your Honour is asked to find there. Degradation of the land in that respect may be ‑ can I give an example ‑ asbestos being placed into the land which is then worked, or dug up and then results in actual or potential harm to the health or safety of human beings. Or somehow what is placed into the land can be absorbed by a plant, or a fruit that is then eaten by humans. There needs to be annexes between the degradation of the land there, and the result being the actual or potential harm to human health in that particular respect. 6 T.32.32-39 Now, there's no suggestion at all on our case that the land has been polluted. Your Honour, with respect, wouldn't even need to get to this definition because your Honour doesn't need to look at the offence provision which is 142A. 7 T.33.1-11 I respond to the postulated offences. Now, if we can just deal with these one by one. Polluted waters in and around Bow Bowing Creek, that's just not part of our case, and if there was confusion in that regard caused by those paragraphs of Mr Harris's affidavit, they're not sought to be read. That's not part of our case, so that shouldn't be in issue. Polluted land is the point that I just raised with your Honour, that there's no evidence that the dust which fell on and around Pembury Road caused or was likely to cause any degradation of the land, and there's no suggestion that the offender has polluted land around that area. An air pollution offence only‑‑ HIS HONOUR: I think in very simplistic terms, what I'm putting to you in response to 21B is, if there is no degradation from the deposition of the dust, what is the harm that you say is effected? ENGLISH: Well, the harm is to human health in the matters complained of by the various civilian witnesses and in terms of lost productivity because dust got into, I think, a spray gun or its parts and jobs had to redone, spray painting jobs had to be recompleted because of effectively the work not being performed to a proper standard due to the contamination of dust. That's not land degradation, that's a business and financial loss that your Honour, in my respectful submission, can take into account in 241 subs (2). I mean there was other lost productivity in terms of cars being washed. HIS HONOUR: How does that not fit within actual or potential loss or property damage? ENGLISH: I'm sorry, your Honour. 8 T.33.13- T.34.5 HIS HONOUR: How does that not fit within actual or potential loss or property damage, part of the definition of land pollution? ENGLISH: Well, property damage there‑‑ HIS HONOUR: Property damage must encompass the consequences of property damage. It would seem to me property damage also encompasses the rendering of equipment unfit for purpose. ENGLISH: Will your Honour just give me one moment, please. The word "land" is not defined in the PEOA Act. There is a definition, and I haven't looked at this for a while under the Interpretation Act. I don't know if it assists, I'm really speaking out aloud. I'm helpfully assisted and instructed that the PEOA Act says, "Land does not include waters," and then there's a definition in the Interpretation Act your Honour might have - has your Honour found that? HIS HONOUR: I do. ENGLISH: Where it says, "Land includes messages…or interest therein." My submission would be that land doesn't include chattels belonging to a business that are used for the purposes of running that business or to customers' cars that come onto the land for the purposes of mechanical work and then are taken away, that's not part of the land, in my respectful submission, nor are computers that sit on a desk in an office of a neighbouring building. 9 T.34.11-14 I do concede that air pollution is a broader concept as defined in the dictionary to the PEOA Act, particularly because of the use of the word "air impurity" which includes dust. 10 T.34.21-25 In relation to air pollution, your Honour would need to make a finding that air pollution resulted as a consequence of a failure to maintain plant in an efficient and proper condition, or a failure to deal with materials in a proper and efficient manner. There's no evidence that goes to that at all. Indeed, I could never suggest to your Honour that that's what occurred. 11 T.34.30-34 … competency in relation to the operations, in handling materials, et cetera, and the, I think, efficient and proper maintenance of plant and equipment, then we might be in this line of territory, but we're not there and your Honour couldn't find the necessary facts to punish the offender for such an offence. 12 T.34.38-44 If I go back to the allegation in relation to 116, the offence of 116, your Honour, we say respectfully that the mental elements sought to be attributed to the offender is not the mental element that your Honour would need to find in relation to that offence. The submission is in this case that the offender wilfully and deliberately received waste at the premises in excess of the waste limit, it's not that it wilfully or negligently caused a substance to leak, spill or otherwise escape. 13 T.34.46-48 Your Honour couldn't, especially to beyond reasonable doubt, make a finding of mens rea that would make the offender liability to punishment in respect of 116 14 T.35.18-24 So we would submit in respect of that 116 posited offence there's two reasons why your Honour would not accept my learned friend's submissions, one that there's been an incorrect attribution of the mental element that is sought, or the finding in respect of the mental element which we seek is not the same finding in respect of a mental element under 116, and secondly there's Pepper J's decision which would provide the Court with further comfort in relation to the prosecutor's position on that particular aspect of the application. 15 T.35.26-32 So where does this all boil down to. In my respectful submission, the position that Basten J alluded to in Einfeld and spoke more clearly of in Cassidy that it's proper for these facts to be put before your Honour, what your Honour makes of them is a matter for your Honour to determine beyond reasonable doubt in accordance with some care that needs to be taken in this area because of the potential issues that can be enlivened in relation to De Simoni, but that doesn't mean your Honour is precluded from hearing the evidence. 16 T.35.34-36 We say in the written submissions that there's no real risk that the offender could be punished for an offence with greater moral culpability or heightened objective seriousness. The 116 offence I've dealt with. 17 T.36.37-44 …your Honour would have to make a finding as to either water pollution, land pollution or air pollution, and these are the findings that we're not pressing upon your Honour and not asking your Honour to make. Then your Honour would have to look at the elements of the offence and see whether those elements were made out. Again, they're not matters that are being pressed before your Honour to take into consideration, 18 T.37.13-16 The consequences here would have to be consequences in the nature of land pollution, air pollution and water pollution. Again, we're not asking your Honour to make a finding of those consequences 19 T.37.31-35 "Care must be taken to ensure that an offender is not punished for an offence with which" - in this case, it is not charged, and no doubt that's care that your Honour would take when writing a judgment and deciding on the appropriate penalty pursuant to the obligations of instinctive synthesis in this case. ENGLISH: Your Honour, the finding that was just mentioned, or the admission against interests as it was put against me in relation to air pollution, your Honour what we say in relation to‑‑ 20 T.51.44-52.21 HIS HONOUR: It wasn't just put about air pollution. It was put about all three vehicles of pollution, if I could use that expression. ENGLISH: And the point - in the written submission, there's a difference between how we treat those at 21 - we don't rely on water pollution. That's point A. Point B we say - my friend correctly characterised the submission that we don't say there's land pollution, because there's no evidence to prove that the land was degraded or likely to be degraded. And C, my friend interrupted me earlier, your Honour, and said, "What about air pollution?" and I said that falls in a different class, looking at the definition of air pollution in the dictionary to the PEOA Act and air impurity. Of course dust falls in air impurity, but the point we make, as said at 21C is that there's no allegation that the offender or no suggestion that the offender committed an air pollution offence, and I took your Honour to the reasons why. Your Honour, can I address on what my friend said that - again putting what his understanding of my submission was that my note was the effect of what we put was that dust was not emitted. That's not what we put that dust wasn't emitted. Clearly dust was emitted. What the prosecutor can't prove is how and where the dust was emitted from. If your Honour allows the evidence, your Honour will see that there's some evidence that goes to trucks entering the premises without a tarp on. Your Honour, there's no evidence as to - well, there's no - certainly no expert evidence as to how the plant runs inside this premises. 21 T.52.23-25 HIS HONOUR: Are these un-tarped trucks of the defendant? ENGLISH: I don't know. 22 T.52.43-48 And the dust has been - is not limited to the premises. It escapes beyond the premises and affects the nearby landholders. We don't know the precise manner by which the dust escapes. We don't know exactly where it came from, other than the fact that there's evidence to say that some residents saw trucks coming in that didn't have a tarp on them. 23 T.53.15-17 And there's a suggestion that your Honour could find and indeed punish the offender for these offences, and we strongly say otherwise. 24 T.53.29-31 … even if your Honour found that the defendant's actions were willful, your Honour couldn't punish the defendants for willfully causing a substance to leak or spill. 25 T.53.38-49 … similarly in relation to ss 124 and 126, my friend says it will be open for your Honour to find that these offence provisions have been breached. As a prosecutor I can submit to the Court that in the absence of expert evidence as to what operating a plant in proper and efficient manner and what dealing with materials in a proper and efficient manner may involve - in the absence of expert evidence on those issues, a charge could never be brought before this court. It wouldn't have a prima facie hope. And the same applies in relation to a land pollution offence. In the absence of expert evidence that land has been degraded, the charge would never be brought before this court on a prima facie level. ENGLISH: Perhaps this might assist the parties. There's two parts of our submissions that we no longer rely on. So my friends know this, I can inform them. On p 7, the final sentence that starts, "When that occurred," to the bottom of the page and travelling over to p 8, that sentence is no longer relied upon. On p 17, your Honour, para 63(a), there's the word "wilful". HIS HONOUR: Page 17, 63(a), yes. 26 T.63.6-20 ENGLISH: Strike the word "wilful". They are the matters that we no longer rely on in the submissions. LARKIN: But we still have a planned and organised criminal activity. ENGLISH: I made that clear that I was only conceding a relinquishing of the word "wilful". I made that quite clear. Your Honour, it's‑‑

Environment Protection Authority v Minto Recycling Pty Limited

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Cases Cited (29)

Cited By (7)