Environment Protection Authority v Richardson; Environment Protection Authority v Behnfeld - [2002] NSWLEC 205 - NSWLEC 2002 case summary — Zoe

NSWNSWLEC

Environment Protection Authority v Richardson; Environment Protection Authority v Behnfeld

[2002] NSWLEC 205

Land and Environment Court (NSW)|2002-11-18|Before: Talbot J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2002-11-18

Before

Talbot J

Source

Original judgment source is linked above.

Judgment (44 paragraphs)

[1]

Introduction 1 The defendant in matter No. 50001 of 2002 and matter No. 50002 of 2002, John Gordon Richardson, is charged with two offences against the Environmental Offences and Penalties Act 1989 ("the EOP Act") for unlawfully transporting waste to a place that could not lawfully be used as a waste facility contrary to s 63 of the Waste Minimisation and Management Act 1995 ("the Waste Minimisation Act"). Mr Richardson is charged on the basis that he caused the transport of discarded, rejected, unwanted, surplus or abandoned used tyres collected from various tyre retailers, service stations and council tips. It is alleged that between 15 January 1999 and 13 April 1999 approximately 29,700 used car tyres were transported to a site located on the corner of Tomago Road and Campbell Street, Tomago. During that time approximately 12,700 used tyres were removed from the site. It is agreed that at least some of the tyres removed during that time would have been transported to the site after 15 January 1999. 2 It is further alleged that between 15 January 1999 and 14 May 1999 the defendant, Mr Richardson caused the equivalent of between approximately 43,000 to 45,000 used tyres to be transported to a site at 10-12 Denham Street, Port Macquarie. 3 The defendant in matter No. 50003 of 2002, Klaus Otto Behnfeld, is charged that he caused or permitted the transport of waste in the form of scrap tyres at various times between 15 January 1999 and 13 April 1999 to the site at Tomago.

[2]

[29]

(11) Although, to some extent, Mr Richardson carried out the bidding of Mr Behnfeld, he nevertheless was complicit in the transport of tyres and exercised his own discretion in relation to many matters particularly in respect of the Port Macquarie site. However, his actions in transporting tyres to the two sites are rightly to be regarded as part of a single course of conduct. Not only were the acts of transportation directly contemporaneous, they were related events tied up in the same overall business enterprise. 17 Both defendants have committed serious breaches of the legislation. They each acted irresponsibly by having regard to their own financial interests ahead of the regime imposed by the statute. Although charged only with the offence in respect of the Tomago premises, Mr Behnfeld must bear the brunt of a heightened responsibility having regard to his major entrepreneurial role and managerial responsibility. His was the motivating force behind the business enterprise that was allowed to develop and continue notwithstanding there was no realistic expectation that the ultimate lawful disposal of the tyres could take place. 18 The Court adopts the final submission made by Mr Buchanan as follows:- The wilful disregard by the Defendants of the requirements of the legislation for regulatory control of waste facilities which received used tyres takes this case out of the realm of that level of seriousness of offending referable to the need to ensure that the cost of preventing pollution is absorbed into the costing of the relevant industries ( Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359). A significant income stream for the Defendants was the payments they received from tyre retailers and service stations for relieving them of the environmental cost of disposal. Messrs Behnfeld and Richardson committed their offences as a way of exploiting the retail industry's knowledge of the burden on the environment posed by their waste product. By reason of their motive for their offences and their contumacious disregard of the law, the sentences to be imposed upon these Defendants need to reflect high levels of general deterrence, individual deterrence and punishment.

[31]

s consequent upon the conviction of the Defendant for the offence that between 15 January 1999 and 13 April 1999 at Tomago in the State of New South Wales he caused or permitted waste to be transported to a place that could not lawfully be used as a waste facility for that waste, contrary to s63(1) of the Waste Minimisation Act 1995, · and pursuant to s14(2) of the Environmental Offences and Penalties Act 1989, the Defendant be ordered to pay to Williams River Steel Pty Limited ("WRS") the sum of $41,567 being the costs incurred by WRS by reason of the commission of the offence in respect of loss of or damage to property and as expenses in preventing or mitigating, or in attempting to prevent or mitigate, any such loss or damage. 2. That, s consequent upon the conviction of the Defendant for the offence that between 15 January 1999 and 13 April 1999 at Tomago in the State of New South Wales he caused or permitted waste to be transported to a place that could not lawfully be used as a waste facility for that waste, contrary to s63(1) of the Waste Minimisation Act 1995, · and pursuant to s14(2) of the Environmental Offences and Penalties Act 1989, the Defendant be ordered to pay to the Environment Protection Authority ("the EPA") the sum of $27, 127.66 for the express purpose of payment into the Waste Fund, being the costs and expenses incurred by the State of New South Wales by reason of the commission of the offence in respect of loss of or damage to property and as expenses in preventing or mitigating, or in attempting to prevent or mitigate, any such loss or damage. Environmental harm Port Macquarie site 24 Following unsuccessful negotiations between Boral, as owner of the site and the defendant, the used tyres remained on site until June 2000. The defendant or Recycle Technology did not remove any tyres from the site. The cost of removing the tyres from the site and disposing of them was subsidised by the Hunter Waste Planning and Management Board. Boral also incurred some costs in having the tyres removed from the site and disposed of. 25 The following matters are agreed as the risks of environmental harm:- (1) A serious fire risk; (2) Water pollution, particularly in the event of a fire which would likely result in the release of toxic fire, water and oil;

[38]

Tomago site 27 The same conditions applied at the Tomago site with identical risks to those posed at Port Macquarie. 28 Once again, the cost of removing the tyres was borne by the owner and Hunter Waste Planning and Management Board. 29 The defendants were both aware of the environmental harm associated with the transportation to and storage of the tyres at the site. In his record of interview, Mr Behnfeld, in respect of the risks posed to the environment by tyre storage, stated, "any amount of tyres of a reasonable quantity represents a problem…any large quantity of tyres, depending on how large, you know, would pose as a certain danger". Penalty 30 In the case of Mr Richardson there should be a downward adjustment of the penalty in respect of the second offence, following an assessment of the overall criminality involved in the two offences. This will be done by considering whether the aggregate penalty is just and appropriate (R v Holder and Johnston [1983] 3 NSWLR 245 and Mill v The Queen (1988) 166 CLR 59). 31 The penalty imposed on each defendant must take account of the need for general deterrence having regard to the recognised prevalence of tyre dumping and the potential environmental consequences. 32 Both defendants present with an enhanced degree of culpability although, as I have already said, Mr Behnfeld must be regarded as playing the leading role in the enterprise. 33 The maximum penalty of $60,000 for each offence has since been doubled to $120,000 following amendments made by the Protection of the Environment Operations Act 1997. The doubling in itself does not entitle the Court to increase the penalty on that account, but it does serve to demonstrate the ongoing serious concern expressed by the Parliament about this type of offence. 34 Having regard to the whole of the circumstances, an appropriate penalty for the offence committed by Mr Behnfeld, after allowing a discount for the utilitarian value of the plea of guilty, the contrition of the defendant (to the extent it was expressed at the trial), the acceptance of liability for the costs of the clean up of the site and co-operation with the prosecutor, is $30,000. Mr Behnfeld has also agreed to pay the whole of the prosecutor's costs in the sum of $40,000. 35 The appropriate penalty for each offence proved against Mr Richardson is $20,000. Applying the totality principle an aggregate penalty, taking into account the overall criminality in respect of both offences, is $30,000. 36 Accordingly, the proper penalty to be imposed on Mr Richardson in matter No. 50001 of 2002 in respect of transportation to the Port Macquarie site is $20,000. In matter No. 50002 of 2002 the appropriate penalty in respect of the Tomago site is $10,000.