Environment Protection Authority v Pullinger

Land and Environment Court (NSW)|2022-03-29|Before: Pepper J

Pullinger Files Notices of Motion Seeking to Set Aside Summonses

In three separate amended summonses filed on 29 March 2022, Robert Pullinger is charged with offences against ss 91(5) and 102 of the Protection of the Environment Operations Act 1997 ("the POEOA") committed at 62 Kyle Street, Rutherford NSW ("the property"), as follows: 1. one count of failing to comply with condition 7, from 31 August 2018 to 16 November 2020, in respect of Clean-Up Notice 11548804 issued 5 June 2017 ("the notice"), as varied by the Notice of Variation of Clean-Up Notice 1564650 issued 18 May 2018 ("the varied notice") (matter 2020/327089); 2. one count of failing to comply with a prohibition notice, issued pursuant to s 101 of the POEOA, by the Honourable Matt Kean MP, Minister for Energy and Environment on 25 August 2020 ("the prohibition notice") from 25 August to 16 November 2020 (matter 2020/327091) ("the prohibition notice offence"); and 3. one count of failing to comply with condition 10 of the varied notice from 31 August 2018 to 16 November 2020 (matter 2020/327090) ("the condition 10 offence").

The Relevant Legislative Scheme

Section 91(1) and (5)(b) of the POEOA relevantly provides that: 91 Clean-up by occupiers or polluters (1) Notices The appropriate regulatory authority may, by notice in writing, do either or both of the following - (a) direct an owner or occupier of premises at or from which the authority reasonably suspects that a pollution incident has occurred or is occurring, (b) direct a person who is reasonably suspected by the authority of causing or having caused a pollution incident, to take such clean-up action as is specified in the notice and within such period as is specified in the notice. … (5) Offence A person who, without reasonable excuse, does not comply with a clean-up notice given to the person is guilty of an offence. Maximum penalty - … (b) in the case of an individual - $250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.
The term "pollution incident" is defined in the Dictionary of the POEOA as follows: pollution incident means an incident or set of circumstances during or as a consequence of which there is or is likely to be a leak, spill or other escape or deposit of a substance, as a result of which pollution has occurred, is occurring or is likely to occur. It includes an incident or set of circumstances in which a substance has been placed or disposed of on premises, but it does not include an incident or set of circumstances involving only the emission of any noise
"Clean-up action" is also defined in the POEOA: clean-up action, in relation to a pollution incident, includes - (a) action to prevent, minimise, remove, disperse, destroy or mitigate any pollution resulting or likely to result from the incident, and (b) ascertaining the nature and extent of the pollution incident and of the actual or likely resulting pollution, and (c) preparing and carrying out a remedial plan of action. It also includes (without limitation) action to remove or store waste that has been disposed of on land unlawfully.

Pullinger Operated a Waste Oil Processing and Waste Storage Business at the Property

In support of his application Pullinger relied upon the varied notice, the prohibition notice, specific paragraphs of the EPA's statement of facts dated 15 December 2021, and an affidavit sworn on 22 March 2022 ("the Pullinger affidavit").
The EPA did not rely upon any additional evidence.
From the evidence before the Court, the following undisputed facts may be found. At all relevant times, Pullinger was the tenant in common of the property in equal shares with Glowbye Pty Ltd ("Glowbye").
The following structures are located on the property: 1. a brick office building, including a laboratory, on the northern frontage to Kyle Street; 2. plant buildings associated with former waste oil processing facilities; 3. a spill containment system comprising nine bunded areas around approximately 70 above-ground tanks, built on concrete hardstands with drains that void liquids into an underground tank with approximately 60,000 L of capacity ("the system"); 4. access roads; and 5. various sheds and storing buildings.
Until sometime in late 2016, Pullinger was the sole director of Truegain Pty Ltd ("Truegain"). On 15 September 2016 Truegain was placed under external administration.
Truegain formerly undertook the scheduled activities of waste oil processing and waste storage at the property pursuant to Environment Protection Licence 7638 between 7 December 2000 and 1 April 2016.
Between 2000 and 2016 Truegain received, stored and processed waste oils and wastewater at the property by refining and processing those oils into reusable petroleum-based products, and processing wastewater for discharge to a sewer system operated by the Hunter Water Corporation.
Truegain also conducted waste oil processing activities at the property in conjunction with Australian Waste Oil Refineries Pty Ltd ("AWOR"). Pullinger was a director and the secretary of AWOR until it was liquidated on 14 September 2016 and deregistered on 17 September 2018.
On 9 November 2016 the EPA inspected the property and identified that the liquid contained in the system was contaminated with varying levels of hydrocarbons, perfluorooctane sulfonate, perfluorooctanic acid and perfluorohexane sulfonate, known collectively as "PFAS".
On 5 June 2017 the EPA issued Pullinger with the notice requiring the removal of contaminated liquid from the system to reduce the risk of discharges of pollutants offsite.
On 21 March 2018 the EPA suspected that a pollution incident was occurring, or had occurred, at the property and it undertook clean-up action to address it pursuant to s 92 of the POEOA. The pollution incident occurred when contaminated stormwater containing PFAS was discharged from the property into the neighbouring waters of Stony Creek.
On 3 May 2018, in response to the ongoing risk of discharges from the property, the EPA engaged GHD Pty Ltd to assess options to prevent further potential discharges. Ongoing costs to remove the contaminated liquid in the existing bunds ranged from $400,000 to $1 million per year depending upon the level of surveillance and response required.
The EPA initially alleged that the underground tank system at the property was more than one third full on 16 occasions, and that Pullinger failed to empty out the tanks after 10 mm of rain fell in a 24 hour period on a further 61 occasions during the charge period (T16:16).
After the amendment of the summons reducing the charge period from 31 August 2018 to 16 November 2020, there were only 14 occasions when the underground tank system at the property was more than one third full and 29 instances when Pullinger failed to empty out the tanks after 10 mm of rain fell in a 24 hour period. That is, Pullinger is alleged to have breached condition 10 of the varied notice on 43 occasions.
On 24 August 2018 the EPA issued Pullinger and Glowbye compliance cost recovery notices to recover costs incurred by the EPA in connection with the clean-up of the pollution incident. No costs were recovered and on 2 September 2019, the compliance cost notices were registered as a charge on the property.
On 4 February 2019 Pullinger and Glowbye provided the EPA with a preliminary investigation report examining groundwater and soil contamination at the property. Sampling involved targeting PFAS, petroleum hydrocarbons, polycyclic aromatic hydrocarbons and heavy metals as contaminants of concern but did not include solvents, despite a solvent wash area, and a drum storage area in the northern parts of the property. The report found groundwater exceedances against the PFAS National Environment Management Plan ("the NEMP") drinking water guidelines, concentrations of copper, nickel and zinc exceeding the NEMP groundwater investigation levels and soil detections of PFAS and NEMP Ecological Investigation Level exceedance for zinc.
Between 19 October 2018 and 12 April 2019 Enviropacific Services Ltd were engaged to treat and remove approximately 1,700,000 L of contaminated liquid from the system.
On 12 September 2019 the EPA undertook sampling of the bund storage areas at the property confirming high levels of PFAS and other contaminants in the bund water. It is alleged that the above ground tanks are still holding waste material with similar pollutant characteristics to the bund water. According to the EPA there is an ongoing risk that contaminated liquid could be discharged from the system to other areas within the property, especially during or after rain.

The Rule Against Duplicity

The applicable legal principles for determining when a summons is bad for duplicity are often easier stated than applied, especially in the context of environmental crime, where the offending conduct can occur over an extended period of time.
The history, purpose and legal principles concerning the doctrine of duplicity were set out comprehensively by Leeming JA in Environment Protection Authority v Truegain Pty Ltd [2013] NSWCCA 204; (2013) 85 NSWLR 125 (at [31]-[52]). These have been repeated in Environment Protection Authority v Riverina Australia Pty Ltd [2015] NSWCCA 165; (2015) 90 NSWLR 57 (at [91]-[98] per Hall J) and more recently in Kiangatha Holdings Pty Ltd v Water NSW [2020] NSWCCA 263; (2020) 247 LGERA 1 (at [34]-[35] per Fagan J).
Having regard to those authorities, and the cases cited therein, the legal principles may be distilled for present purposes as follows: 1. the rule against duplicity prohibits a single count in an indictment (in this Court, a summons) charging a person with the commission of more than one offence (Truegain at [31] and [34] and Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77 at 104); 2. the rule is one of fairness to a defendant (S v The Queen [1989] HCA 66; (1989) 168 CLR 266 at 285). The object or purpose of the rule against duplicity is that there should be no uncertainty as to the offence charged (Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 487 per Dixon J). The rule has been described as "an essential part of the concept of justice in criminal cases" and as one of the "fundamental rights" of an accused (Miller at 497-498 per Evatt J quoted in Truegain at [44]-[45] per Leeming JA); 3. an indictment or summons is patently bad for duplicity where it is apparent on its face that more than one offence has been charged in the one count (Miller at 487 per Dixon J and Hamzy v R (1994) 74 A Crim R 341 at 343-344); 4. two exceptions to the rule against duplicity are recognised. The first is where the alleged offence is of a continuing nature. In such cases, conduct that continues over an extended period, any part of which would constitute the offence, may be charged as one count (Kiangatha at [34]); 5. the second exception is where the acts form part of the same transaction or criminal enterprise and may be charged in a single count (Truegain at [48] and Walsh at 107-109 per Kirby J). In this regard, the Court examines whether the criminal acts occurred in close temporal and physical proximity in order to be susceptible to treatment as a single count (Walsh at 108); 6. the question of whether a statute attaches criminality to an ongoing criminal enterprise, as opposed to a particular act, is one of statutory construction (Truegain at [51]-[52]); 7. if a court concludes that a charge is duplicitous, in the first instance the Court should require the prosecutor to amend the charge to cure the defect if it can be cured (Hedberg v Woodhal [1913] HCA 2; (1913) 15 CLR 531 at 536 and Walsh at 110 per Kirby J); and 8. the authorities emphasise that a strict approach to duplicity remains the law in this country (Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202; (2018) 362 ALR 359 at [50]-[53] citing Johnson at 483 per Dixon J and Walsh at 110 per Kirby J). But matters of fact and degree are apt to arise in the application of the principles (Truegain at [72] per Leeming JA).
Relevantly, in Walsh Kirby J provided a non-exhaustive list of indicia that suggest a continuous offence or series of offences could be properly charged in a single count (at 108, references omitted): Various indicia are proposed to sustain a single count against the charge of duplicity, notwithstanding that it may permit evidence to be adduced of events which, taken individually, could constitute separate offences. The indicia include: (a) the connection of the events in point of time; (b) the similarity of the acts; (c) the physical proximity of the place where the events happened; and (d) the intention of the accused throughout the conduct. Perhaps an indication of the considerable difficulty of the task to be found is in the fact that, in many of the leading cases, there is (as in this case) a division of judicial opinion. For instance, Latham CJ dissented in Johnson v Miller; Kitto J dissented in Montgomery v Stewart; and Brennan J (as he then was) dissented in S v The Queen.
In Truegain a company held an environment protection licence ("EPL") under the POEOA which authorised it to carry out "waste processing (non-thermal treatment)" on its premises. By a single summons the prosecuting authority alleged that the company had committed one breach of s 64(1) of that Act by contravening a condition of the EPL by failing to carry out authorised activities in a competent manner insofar as the adequate treatment and storage of liquid waste was concerned. As particularised, the allegations related to acts and omissions occurring on different days in respect of different areas of the company's premises.
In holding that the summons was duplicitous, the Court of Criminal Appeal rejected an argument by the prosecuting authority to the effect that it did not matter how often, or in how many ways, the licensee failed to carry out the scheduled activities in a competent manner. As Leeming JA observed (at [65] and [72]): 65 So too here. Section 64 brings all forms of contraventions of licence conditions into a single section. But that merely requires one to turn to the conditions of the licence alleged to have been contravened. Although the prosecutor has relied only on a contravention of condition O.1, that of itself cannot in my view be determinative of the question of duplicity. The question is one of substance, not form, and as soon as one considers the activities which are authorised by the Licence and which are particularised by the prosecutor, one can immediately see the distinct conduct (both acts and omissions) which suffices to constitute an offence. … 72 Matters of fact and degree are apt to arise where duplicity is alleged. However, storage is different from treatment, and the storage alleged to have been performed incompetently took place on different days, and with different equipment, from the treatment which is alleged to have been performed incompetently. In the present case, the charge extends to failure to store and failure to treat. Let it be assumed, favourably to the EPA, that all of the machinery and facilities on Truegain's premises formed a single "entity". Nevertheless, it is plain on the face of the particulars that the conduct and omissions giving rise to the alleged incompetent storage is different (in time, in location, and in content) from the conduct and omissions giving rise to the alleged incompetent treatment.
Kiangatha concerned the construction of a road in sections which created significant areas of disturbed soil and sediment upon the land. The defendant failed to implement sediment and erosion control measures that adequately dealt with the sediment and erosion flow from the earthworks that then fell or were washed into ephemeral drainage lines in dry gullies leading to Murdering Creek and Gibraltar Creek. The Court of Criminal Appeal held that each instance of placement of material in a position where it was likely to make its way into a dry gully was a complete offence at the moment of placement. The offence could not therefore be characterised as a continuing offence (at [50]): 50 Each instance of placement of material in a position where it was likely to make its way into a dry gully was a complete offence against s 120 at the moment of placement. Each placement directly into a dry gully, for the purposes of the actual pollution charges, was likewise a complete offence at the moment of placement. A number of individual acts, each one complete at the moment of its performance, do not become something that is "continuing" just by being drawn together under the one charge. Taken together, they remain a number of completed acts. The combination of all of the placements that are relied upon in this case under each charge respectively does not assume the character of a continuing infringement so as to be excused as an exception to the rule against duplicity.
Furthermore, the totality of the activity did not constitute a single criminal enterprise for the purpose of laying one charge in respect of acts that ought to have been prosecuted as multiple offences (at [55]-[58]): 55 The respondent submitted to this Court that, notwithstanding that individual constituents of the overall conduct alleged under each of the likely pollution charges may have involved separate offences, the totality falls within the exception to the general rule against duplicity as constituting a single criminal enterprise. The following was submitted: [T]he indicia of commonality include the period of time over which the act took place (continuous over several months), the similarity in repetition of the acts required to build the road (ie driving a bulldozer over many days), the physical proximity of a place where the events happened (a continuous road, built across multiple parcels of land with the same ownership), and the intention of the [applicants) throughout the conduct (to build one road). [T]here was one contractor, acting an instruction from the [applicants] throughout, who carried out the activity in an unchanged fashion over the course of 6 months, almost without interruption, pursuant to an overall scheme designed by the [applicants]. It is artificial to view the construction of each part of the road closest to each specified drainage line as activities separate from one another. 56 I do not accept that these features are sufficient to unify the alleged conduct into a single criminal transaction for the purposes of laying one charge in respect of acts that could be prosecuted as multiple offences. The fact that the numerous placements of soil and sediment took place in the course of building one road has been a constant refrain in the respondent's submissions at first instance and in this Court. But it is not a significant consideration when one has regard to the fact that the construction took place over five months (from early May to the beginning of October) and extended over a length that has been alternately referred to as 8 km or 10 km, through variable features of terrain and in proximity to a significant number of distinct dry gullies. 57 The learned primary judge was impressed with the common sense of regarding "the construction of the Road as one activity which involved various acts which were closely related to the next and were part of one overall transaction": at [80]. But it does not follow from recognising the road construction as a single engineering project that one may regard numerous individual acts, committed in the course of that project and being of a kind that s 120 forbids, as an "overall transaction" from the point of view of criminal pleading. The fact that all placements of soil took place during five months of construction of one road means that the placements of soil in proximity to widely separated gullies necessarily took place at distinct times and locations as work progressed. 58 The uniformity of the construction method by which each separate placement of soil is likely to have been made, namely, using a bulldozer operated by a single contractor, contributes no weight to the respondent's endeavour to construe numerous placements as a single transaction. The allegedly consistent method simply means that the many separate acts, each allegedly infringing s 120 of the Protection of the Environment Act, were of a similar kind. Repetition of similar acts at different locations and times does not weld those acts into one. The fact that the applicant had only one intention, to construct a road, is also not a significant feature in support of the single transaction argument in this case.
The Court nevertheless acknowledged that there was "a lower limit to the analysis" (at [60]): 60 There must certainly be a lower limit to the analysis of soil placements along this road into separate infringements of s 120. I accept that it would not be necessary, in order to avoid duplicity, for a prosecutor to lay a separate charge for each bucket load from an excavator or each thrust of a bulldozer. A number of such applications of a machine leading to a placement of material where it was likely to find its way into single dry gully, could no doubt be properly charged as one offence. Depending upon the circumstances, it may be that even if such actions continued over more than one day they could properly be so charged. But what the respondent has endeavoured to consolidate into a single instance of infringement of s 120, to be prosecuted on one count, is far more ambitious than joining up as one event several bucket loads or dozer pushes at a single location near a single gully.
Most recently, the Court of Criminal Appeal summarised the legal principles in respect of duplicity in the context of an offence against s 120 of the POEOA, in Environment Protection Authority v Charlotte Pass Snow Resort Pty Ltd [2021] NSWCCA 289; (2021) 250 LGERA 362 ("Charlotte Pass NSWCCA"), where Preston J relevantly stated (at [48]-[49] and [53]-[54], Price and Adamson JJ agreeing at [77]-[78]): 48 The question of whether a statute attaches criminality to an ongoing criminal enterprise, as opposed to a particular act, is inevitably a question of statutory construction: Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125 at [51]. 49 In the case of acts of water pollution, this involves statutory construction not only of the provision of the POEO Act that creates the offence of water pollution (s 120(1)) but also the provision that allows for a defence to the offence if the water pollution was regulated by an environment protection licence (s 122(1)) and the provisions of any environment protection licence that has been issued to regulate water pollution. … 53 The POEO Act and the EPL accordingly dictate that the acts of discharging effluent from the STP into the tributary, which involve the pollution of waters, not only will be similar (the second of the indicia in Walsh v Tattersall) but also will occur at the same place (the third of the indicia). As to the similarity of the acts, the volume of effluent discharged and the concentration of pollutants in the discharged effluent may vary from day to day, depending on, amongst other things, the volume of sewage and waste water received at the STP, the capacity of the lagoon at the time and the efficiency of operation of the STP. But the unifying characteristics are that the discharges must be by the same specified scheduled activity (sewage treatment), from the specified premises (the STP), of the specified nature (untreated or partially treated sewage), at the specified discharge point (discharge point 1) and not exceeding the specified concentration limits for pollutants or the specified volume/mass limit at the specified monitoring or discharge point. The need for the discharges from the STP to have these characteristics leads to the similarity of the acts of discharge. So too, the need for the discharges to be from the STP and at the same discharge point leads to the physical proximity, indeed identicality, of the place where the acts of discharge occur. 54 The acts of discharge were, therefore, sufficiently connected as to be fairly and properly identified as part of the same criminal enterprise or the one criminal activity of polluting the waters of the tributary: see R v Hamzy (1994) 74 A Crim R 341 at 348 (Hamzy).
Preston J concluded that the summons was not duplicitous because the defendant's offending conduct constituted a single criminal enterprise for the following reasons (at [60]-[61], Price and Adamson JJ agreeing at [77]-[78]): 60 The differences in the volume of effluent discharged or the concentrations of pollutants in the discharged effluent did not break the connection between the discharges that derives from them all being a necessary product of carrying on the STP in accordance with the EPL and POEO Act. The conditions of the EPL allow for differences in volume and concentration levels of the effluent discharged from the STP into the tributary, provided that the volume and concentration levels of pollutants do not exceed those set by the conditions of the EPL. That is particularly evident with regard to the concentration limits set by condition L2 of the EPL. The condition does not set a concentration limit for the specified pollutants for each and every discharge of effluent on any occasion, but rather the concentration limits are set by reference to the 90 percentile and 100 percentile of the concentration levels of discharges over an annual period. For example, 90% of the discharges over a year need to meet the concentration level for nitrogen (ammonia) of 2mg per litre. This would permit some discharges to have a concentration of nitrogen (ammonia) in excess of 2mg per litre. 61 Thus, the fact that there was variability in the volume and concentration levels of the pollutants in the effluent discharged is, by itself, uninformative and does not indicate that there is a lack of connection between the discharges. Other indicators of connectivity and commonality between the discharges are more informative, including the discharges being by the same scheduled activity, from the same premises, of the same nature, at the same location (the same discharge point into the same waters) and in accordance with the same conditions of the EPL.

Is the Condition 10 Summons Duplicitous?

Pullinger submitted that the condition 10 offence was duplicitous for the following reasons: 1. first, the proper construction of condition 10 of the varied notice required the removal of liquid from the system on each occasion that more than 10 mm rain fell in any 24 hour period or when the tanks became over one third full, rather than a continuous obligation. Section 91(5) of the POEOA was therefore triggered each time that condition 10 was breached. Accordingly, the 43 occasions during the charge period that condition 10 was breached constituted 43 potential separate offences; 2. second, Pullinger relied upon Bathurst CJ's observations in Tropic Asphalts that (at [60]): 60 The question may be tested in the following way. During the course of its submissions, the prosecutor indicated that it would seek to prove that the contraventions occurred on each day in the period specified in the Second and Third Charges. Notwithstanding if it could only be proved that a contravention occurred on only one of the days in that period, the offence as charged would be made out. In my opinion, this demonstrates that the charge encompasses multiple separate offences rather than a single offence. To similar effect, Pullinger submitted that if the EPA established a single occurrence when condition 10 was triggered and not complied with, then the condition 10 offence elements were complete, and therefore, the summons includes multiple separate offences; and 1. third, s 91(5) of the POEOA establishes a defence of reasonable excuse. The reasonable excuse that Pullinger may rely upon could be different for each breach of condition 10 of the varied notice, thereby indicating that the condition 10 offence as charged constitutes a series of discrete and separate offences.
In response, the EPA contended that: 1. first, the condition 10 offence is a continuing offence falling into the first exception to the rule against duplicity as identified in Kiangatha (at [34]). The offence was a continuous failure to remove polluted waters from the system over time. The condition 10 offence, which imposed an immediate and ongoing obligation upon Pullinger to remove accumulated liquid from the underground system, can be distinguished from the facts of Tropic Asphalts which concerned a condition that contained the words "per day" in the condition; 2. second, each occasion that Pullinger breached condition 10 of the varied notice was sufficiently connected so as to constitute a continuing offence; 3. third, in the alternative, Pullinger's offending conduct formed a single criminal enterprise analogous to that found in Charlotte Pass NSWCCA. In this case, each breach of condition 10 arose from the operation of the same underground tank system at the property, similar to the ongoing pollution from the operation of a sewage treatment plant in Charlotte Pass NSWCCA. The summons is not duplicitous because it encompasses "interrelated" breaches of condition 10 of the varied notice (T50:10-17); and 4. fourth, Pullinger has not given notice that he intends to rely upon the defence of reasonable excuse, and therefore, his submissions in relation to that issue were hypothetical. Nonetheless, the existence of multiple reasonable excuses does not in and of itself mean that an offence is not a continuing offence or a single criminal enterprise. For example, there may be multiple reasonable excuses available to Pullinger even if the offence was charged in relation to a single day.

The Condition 10 Offence as Charged

In determining whether or not there is asserted duplicity, the first step in any analysis is to identify the act or conduct prohibited by the law creating the offence (Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373; (2006) 165 A Crim R 151 at [9], Kiangatha at [26] and Charlotte Pass NSWCCA at [48]).
The elements of an offence against s 91(5) of the POEOA are: 1. a person; 2. who has been given a notice to take a clean-up action; 3. does not comply with one or more conditions in that notice; and 4. who does not have a reasonable excuse.
Section 91(5)(b) of the POEOA expressly applies to a continuing course of conduct (Secretary, Department of Planning and Environment v Sell & Parker Pty Ltd [2019] NSWLEC 48 at [46]).
In relation to the condition 10 offence, the EPA argued that Pullinger, as the recipient of the varied notice, failed to immediately remove and lawfully dispose of all liquids from the onsite bunds and the system at the property when a certain amount of water entered the system from February 2019 to 16 November 2020.
Relevant particulars of the conduct relied upon by the prosecutor for the purpose of the condition 10 offence, as provided by the EPA to Pullinger on 22 March 2022, are as follows: 1. from about February 2019 to 16 November 2020, Pullinger failed to immediately remove and lawfully dispose of all liquids accumulated in the onsite bunds and similar structures, and the underground tank and pit system at the property; 2. the underground tanks were more than one third full on the following occasions after February 2019: 4, 11, 12, 16 and 22 June, 1 and 19 August, 4 and 5 September, 15, 24 and 26 October and 5 November 2020; and 3. that 10 mm or more of rainfall in any 24 hour period occurred at Maitland Airport and/or the property, and Pullinger failed to dispose of all liquids accumulated in the system, on the following occasions: No. Date Rainfall
10 March 2019 42.4mm
17 March 2019 16.9mm
20 March 2019 23.8mm
30 March 2019 53.0mm
4 May 2019 14.4mm
2 June 2019 20.2mm
24 June 2019 15.4mm
4 July 2019 11.2mm
18 September 2019 38.2mm
4 November 2019 10.0mm
7 February 2020 35.4mm
8 February 2020 12.2mm
9 February 2020 66.4mm
10 February 2020 20.6mm
6 March 2020 24.2mm
7 March 2020 21.8mm
4 April 2020 15.6mm
26 May 2020 22.2mm
10 June 2020 12.4mm
14 Jun3 2020 13.6mm
13 July 2020 13.0mm
26 July 2020 15.8mm
27 July 2020 46.8mm
28 July 2020 11.6mm
10 September 2020 10.4mm
21 September 2020 12.4mm
25 October 2020 15.4mm
26 October 2020 26.6mm
29 October 2020 16.6mm

The Condition 10 Offence Does Not Constitute a Continuing Offence

The manner of breach particularised in the summons for the condition 10 offence is expressed in terms of a continuous offence, namely, that Pullinger breached condition 10 of the varied notice on "an ongoing basis from February 2019 and continuing to 16 November 2020".
Nonetheless, the further particulars provided by the EPA to Pullinger isolate instances during which Pullinger is alleged to have contravened condition 10 that indicate his offending conduct was not continuous. For example: 1. despite the charge period commencing in February 2019, the first time Pullinger is alleged to have breached condition 10(a) of the varied notice is on 10 March 2019 and the first alleged breach of condition 10(b) was on 4 June 2020. That is, for the first month of the charge period, Pullinger is not alleged to have breached condition 10 of the varied notice; 2. it is alleged that Pullinger did not empty the underground tank system once it became one third full on 4, 11, 12 and 16 June 2020. The gaps between those dates, however, suggest that the tanks were not one third full on 5 to 10 and 13 to 15 June 2020; and 3. similarly, Pullinger is alleged to have breached condition 10(a) of the varied notice on approximately 29 occasions on days when over 10 mm of rain had fallen. There are, however, gaps between the nominated occasions, for example, between 10 and 17 March 2019.
The ambiguity contained in condition 10 of the varied notice, which differs from the wording of the summons insofar as the latter contains the word "or" which does not appear in varied notice, further indicates that the condition 10 offence is not a continuing offence. Whether conditions 10(a) and (b) of the varied notice are disjunctive or cumulative is not clear. If they are cumulative, that is, if Pullinger only breached condition 10 after more than 10 mm of rain has fallen in the last 24 hour period and the tanks have become more than a third full, then there are even fewer instances upon which Pullinger is alleged over time to have breached condition 10, reinforcing the conclusion that the offence is not continuous.
When regard is had to the manner by which the condition 10 offence is charged and particularised, each breach of condition 10 of the varied notice is, in my view, a complete offence against s 91(5) of the POEOA.
I am therefore not satisfied that the condition 10 offence charged in the summons is a continuing offence.

The Condition 10 Offence Constitutes a Single Criminal Enterprise

However, in my opinion, Pullinger's offending conduct falls within the second exception to the rule against duplicity because it constitutes a single criminal enterprise.
Whether a statute attaches criminality to an ongoing criminal enterprise or a particular act is a question of statutory construction of the section, the available defences to that provision, and the relevant condition of the varied notice (Charlotte Pass NSWCCA at [48] and Truegain at [51]).
The offence provision and the varied notice are relevantly analogous to Charlotte Pass NSWCCA, in that the offending provision imposes a general prohibition on certain acts or omissions as determined by the provisions of the EPL and the varied notice. In that case, Preston J construed s 120 of the POEOA which concerns the pollution of waters, as follows: 50 Construction of these provisions of the POEO Act and any environment protection licence issued under the POEO Act will ordinarily reveal that multiple acts of water pollution resulting from carrying out the activity specified in the environment protection licence will be sufficiently connected to amount to a single compendious instance of offending.
In the present case, s 91(5) of the POEOA creates an offence for failing to comply with a clean-up notice issued under s 91(1) of that Act. The language of the provision is directed towards a single clean-up notice, which requires a person to carry out a specified clean-up action or series of actions that are connected to the pollution incident enlivening the operation of s 91(1) of the POEOA. The varied notice imposed obligations upon Pullinger by condition 10 in relation to the removal of all extant and accumulating contaminated liquid from the property. Pullinger, as the tenant in common of the property, was under a continuing obligation under the varied notice to clean-up the pollution on the property.
Accordingly, when assessed against the indicia in Walsh (at 108), the relevant provisions of the POEOA, and the varied notice, it is clear that Pullinger's failure to immediately and lawfully remove contaminated liquid from the property on various dates during the charge period constitutes a single criminal enterprise because: 1. the connection of the events in time indicates a single criminal enterprise (the first indicia in Walsh). The occasions during which Pullinger is alleged to have breached condition 10(a) and 10(b) although fragmented, are nonetheless temporally connected because each breach occurred as a result of the continuous operation of the onsite bunds and underground tank system that accumulated rain as it fell thereby leading to contaminated liquid in the system that had to be removed in order to satisfy condition 10 of the varied notice (see Charlotte Pass NSWCCA at [56]-[57]); 2. each of the particularised breaches of condition 10 of the varied notice was a similar act (the second indicia in Walsh). The volume of contaminated liquid that required removal and the concentrations of pollutants in that liquid may have varied during the charge period. However, there are critical unifying characteristics of each occasion that Pullinger breached condition 10, namely, each instance represented the accumulation of contaminated liquid in the same underground tank system, of the same specified nature, and in breach of the same ongoing obligation under the varied notice, giving rise to the risk of a pollution incident. Furthermore, because Pullinger had emptied the system prior to the charge period (as identified in the particulars) and the property was no longer treating waste oil or waste water, the cause of the accumulated liquid was also relevantly similar, that is, the inflow of rainfall into the onsite bunds and underground tank system, irrespective of whether that rain was over 10 mm in a 24 hour period, thereby directly triggering the obligation contained in condition 10(a) of the varied notice; 3. the offending conduct occurred at the same location and in respect of the same infrastructure (the third indicia in Walsh); and 4. adopting the reasoning in Charlotte Pass NSWCCA (at [58]), the Court must assess the intention of the accused throughout the charge period (the fourth indicia in Walsh). Pullinger's intention remained constant during the charge period, namely, to not immediately and lawfully remove any liquid from the underground tank system once a certain amount of liquid had accumulated in it, whether by the inflow of 10 mm of rain in the previous 24 hour period (condition 10(a)) or because the tanks had steadily accumulated liquid to the point they had become one third full (condition 10(b)).
The fact that there was variability in the dates that Pullinger is alleged to have breached condition 10 of the varied notice and different volumes of liquid that required removal on each occasion, does not indicate that there is a lack of connection between Pullinger's alleged breaches of the varied notice. Other relevant measures of connectivity and commonality exist, including that each alleged breach was of the same condition of the varied notice and, to reiterate, from the same location, and as a result of the same ongoing liquid collection function of the onsite bunds and underground tank system.
Finally, I do not accept Pullinger's argument that the available defence of a reasonable excuse, and the potential for Pullinger to offer different reasonable excuses in respect of each breach of condition 10 of the varied notice, means that the summons is bad for duplicity.
The defence of reasonable excuse remains regardless of whether or not the breaches of condition 10 are charged as one count or multiple counts; it is irrelevant if the specifics of that reasonable excuse vary. Pullinger will have a defence against the charge if, on any of the occasions that he is alleged to have breached condition 10 of the varied notice, he is able to demonstrate a reasonable excuse for the noncompliance. This is a further indicia that Pullinger's offending conduct constitutes a single criminal enterprise (see Charlotte Pass NSWCCA at [62]).
In any event, the mere existence of possible multiple reasonable excuses does not render the summons duplicitous. As the EPA submitted, on any single occasion that condition 10 was breached, Pullinger may have a plethora of reasonable excuses available to him.
I am therefore satisfied that the summons for the condition 10 offence is not duplicitous because as charged it constitutes a single criminal enterprise.

Costs

As was discussed and determined in Truegain (at [75]-[99] per Leeming JA) the costs of this motion must be reserved for determination at the conclusion of the proceedings.

Orders

In conformity with the reasons given above, the Court makes the following orders: (1) the notice of motion filed on 22 March 2022 in proceedings 327090 of 2020 is dismissed; (2) costs of the notice of motion are reserved; (3) the exhibits are to be returned; and (4) the matter is listed before the List Judge on 9 December 2022 for further directions.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 December 2022

(2021) 250 LGERA 362

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