Environment Protection Authority v Pannowitz; Environment Protection Authority v Steepleton Pty Limited

Environment Protection Authority v Pannowitz; Environment Protection Authority v Steepleton Pty Limited - [2005] NSWLEC 175 - NSWLEC 2005 case summary — Zoe

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9 Mr Robinson accepted the demolition waste at his property for use as landfill in constructing a cattle mound. As such, Mr Robinson was using his premises as a waste facility within the meaning of the POEO Act. The landfill was placed on land that was within 40 metres of the Paterson River, adjacent to a levee bank of that river, and within a floodway liable to inundation during a flood event. The parties have agreed that Mr Robinson's use of the property was unlawful due to the his failure to obtain: · Development consent from Maitland City Council; · An environment protection licence from the Environment Protection Authority (the "EPA"); and · An approval from the Minister administering the Water Management Act 2000 under s 256(1) of that Act. 10 Mr Pannowitz and Steepleton knew that Mr Robinson required these approvals to receive demolition waste and to construct a cattle mound on his property. Mr Pannowitz was aware of the environmental laws and knew that Mr Robinson's land was flood-prone. In an interview conducted on 29 November 2001, Mr Pannowitz told the EPA the following regarding a conversation with Mr Robinson (answer 27): He rang me, Alan Robinson. He - I said to him, "Have you got approval to take the stuff?" He said, "Yes. … I've talked to council on it," and I said, "Well, you make sure you have your approval" before we took it. He said, "There is not a problem to take this stuff to the site". 11 Mr Pannowitz informed Mr Robertson that the land was flood prone, to which Mr Robinson replied that he had been to the Public Works Department. Mr Pannowitz (and Steepleton) made no further enquiries to ascertain whether Mr Robinson had obtained the relevant approvals. Mr Pannowitz did not seek to see a copy of the approvals, nor did he contact the prosecutor, Maitland City Council, or the Department of Public Works (which is now part of the Department of Infrastructure, Planning and Natural Resources). Further, Steepleton did not obtain written notice from Mr Robinson pursuant to sub-s 143(3A) of the POEO Act.

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28 The record of interview on 25 October 2001 with Mr Kasch relevantly states (pages 5-6): A.31 He said he would get back to me. Mr Robinson then, in about - couple of hours later rang me up and he said, "Matey", he said, "If you want to just drop some fill there", he said, "I want as much as you can possibly get me," and I said, "Fine, okay, have you got a development application", he said, "Yes, I have", I (indistinct). I then went and seen Noel Lane. I said to Noel, "Mate, instead of us taking it all to the tip, which is - you know, about four times the distance, if this man has got a development application to commence work, why don't we take it there?" He said, "Okay, well, you show me John". So we drove down to (Indistinct) Park Road, this is 150 - whatever, I can't think - 151 or whatever. Q.32 150 --- A. 150. We drove down there (indistinct) the site we talked to the man himself and he said, look, he'll take as much as he can. He said, "Do you have any good road base," and I said, "yes, we will", because we were taking gravel and stuff like that out off the road, "we could probably (indistinct) you a road surface". He said, "Well, I'll take as much as you can give me". After that I was out of the deal. Noel kept working, I hadn't spoke to him any more about it and I - nothing more was mentioned about it. It started to rain and we said he couldn't take the stuff down here, he said, "It's too wet", he said, "We're going to take everything to the tip", I said, "That's fine". And then basically, after that it just come to a head where somebody asked me who put all the stuff down there and I said, "Well, I haven't got a clue". …. 29 Further, the record of interview on 25 October 2001 with Mr Lane relevantly provides (at pages 10-11): Q.70 It is normal practice to go to sites to determine whether you're able to take some of council (indistinct) to then [sic]? A. If - if - well, there are people around that ring council and advertise, et cetera for fill and that sort of thing, and if it's a more cost effective - if it's a more - or seems to be, or we think it might be a more cost effective way for our job, rather than - well, to reduce the haulage distance basically, we'll investigate it, yes, we'll go and have a look where it's to go and then our practice is to go and check to see whether it's permissible as far as the DA goes and what the DA is all about with our council, or people in council to determine then whether it's even an option or - or we just forget about it. Because that's determined by the DA and what the DA says, what type of material we've got to have if they have got to have fill anywhere. ….. Q.73 McHugh. Did you advise him that you'd had a talk with a person on-site and they -- A. I told him we were investigating the possibility of being able to use that site but as - well, it was raining and that sort of thing, I said, we'd have to check out the possibility and check out that it was okay (indistinct). So as a result of it, it turned out that we never done any more about it. We never used it. …. 30 I conclude from the record of interview with Mr Kasch and the record of interview with Mr Lane that the evidence does not support the suggestion that the Council dumped any material on Mr Robinson's land.

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Mr Terence John Muir 31 Mr Terence John Muir, a Specialist Investigator employed by the prosecutor, interviewed Mr Pannowitz on 29 November 2001. The record of interview shows that Mr Pannowitz made several statements concerning the quantity of waste taken to the site. He initially stated that his drivers delivered 40 to 50 loads to Mr Robinson's premises, but later suggested there might have been 60 or 70 loads taken to the site. The record of interview contains the following relevant statements relating to the costs or benefits of the waste disposal (at pages 15-16): Q.105 As part of you tender you would have created documents to show to him the costs of waste disposal. Would that be right? A. No, not all - no, no, not all - only if you ask for it, right? We don't - we never show that. We do now but we never show it there. We just say, "Well, if you - if you've got an approval for a tip site" - or you know it's got to go to Maitland Council - or you know it's got to go to Boral, that's what we do. See, we hold a contract with Pacific Power, we supply them all the bricks now, The asbestos goes to the - whichever tip will take it or, in that particular area there now, we've been taking it to Collex out of Maitland area and to - what's the name - Green Valley - what's the name of that tip there? Q.106 Mount Vincent. A. Mount Vincent tip, we take it there and - and if we do it in Newcastle it goes to Newcastle, it goes to Wangi, Awaba, wherever it goes to and all the receipts are in our office for all the - all the tipping we do. And most of the builders are starting to come around now to - to know this and we tell them that if it's not approved landfill site and they're not prepared to pay the money, we're not prepared to go. Q.107 Pay what money? A. The tip fees. Q.108 So when you took this material to Mr Robinson's place, was there any exchange of money? A. No. Q.109 Did he pay for the waste? A. No. Q.110 Did you pay him to allow your drivers to take it there? A. No. Q.111 Why's that, mate? A. Well, we're doing him a service and he's doing us a service. Q.112 What service are you doing him? A. Well, we're building him a cattle mound to save his cattle being drowned. Q.113 What service is he doing you? A. Well, he's providing us a tipping spot that's handy to where we're going to, and he's providing the builder, otherwise we'd have to charge them X-amount of dollars extra for taking it to the tip. Q.114 So would it be fair to say that you company saved money by taking the fill to Mr Robinson's place? A. Well not only our company, all companies save money by doing that. It's logical, right? Q.115 Yes. A. And it's logical for the in-goer because the in-builder and the owner of the property is saving money, isn't he, and he's doing a service for a man that's - that's lost stock in the flood and that. … …. Q.117 No. Well, to go to Mt Vincent I just thought you might know what the tonnage weight was. A. Well, I don't know because - because some loads - as I explained to you, if he had crushed up timber it could be 4 tonne. If he had sold bricks it could be 12 tonne. I don't know. So - so most tips are saying if you put the bricks in now, which you've probably been around the tips, you know that they're trying to put channels in for recrushing. If we run it to Boral it's $14 a tonne if we sort it on site. Q.118 Yes. A. But he come to the site again and he said, "Look, just crush it all up and take it to my place". …

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40 It is clear that the defendants' actions were insufficient to prevent the risk of environmental harm that would have occurred in the event of a flood. (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 41 Given the proximity of the mound to the levee bank, the unnamed tributary and the Paterson River, Mr Pannowitz and Steepleton could have reasonably foreseen the environmental harm that could occur in the event of heavy rainfall. In fact, in the record of interview dated 29 November 2001, Mr Pannowitz admitted that he knew that the land was flood prone and of the need to properly compact and stabilise the mound to prevent the potential risk of environmental harm during a flood. Mr Pannowitz's and Steepleton's foreseeability of this risk is also relevant to assessing their culpability and the seriousness of the offence: Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay)(2000) 49 NSWLR 61at 81; Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng)(1999) 90 IR 464 at 476. (d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence 42 Mr Pannowitz and Steepleton had complete control over the events giving rise to the offences. That is, they were both in full control of the transportation of the waste to Mr Robinson's property. Despite their considerable experience in the demolition industry and knowledge of the legal requirements relating to the use of land as a waste facility, they decided to transport the waste based on Mr Robinson's assurances regarding the lawfulness of using the site as a waste facility, and in doing so committed these offences. I accept the prosecutor's submission that Mr Robinson's assurances were insufficient and too vague and varying to be properly relied upon and the defendants should have undertaken various other checks, including checking the status of the land with the local council. Thus, I find that at all relevant times both Mr Pannowitz and Steepleton had full control over the commission of the offences. (e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee 43 This is not a relevant consideration in this case as Mr Pannowitz and Steepleton had complete control over the transport of the waste to Mr Robinson's property.

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