Environment Protection Authority v Slade, A H

SOLICITORS Whitelaw McDonald

JUDGMENT:

• 1 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

50033 of 2004 ENVIRONMENT PROTECTION AUTHORITY v ANDREW HOWARD SLADE

JUDGMENT HIS HONOUR: 1 The Defendant has pleaded guilty to a charge of an offence against the Protection of the Environment Operations Act, s144(1) in that he being the owner of land that could not lawfully be used as a waste facility permitted the land to be used as a waste facility between approximately 4 May 2001 and 25 May 2001. That land is situated at Tomago Road, also known as Cabbage Tree Road, Williamtown in the shire of Port Stephens. 2 The Summons filed in the proceeding gives the particulars of the land as I have identified it. The waste facility particular is the disposal and/or storage of waste. The particulars of the waste have been amended in the course of today's proceedings to reflect the Statement Of Agreed Facts so that the waste is limited to building and/or demolition waste.

3 The offence covered by s144 is one of a number of offences provided for in the Act under the heading Part 5.6, "Land Pollution" it relevantly provides in subs 1: A person who is the owner or occupier of any land that cannot lawfully be used as a waste facility and who permits the land to be used as a waste facility is guilty of an offence. 4 The maximum penalty imposed in the case of a corporation is $250,000 with a further penalty of $120,000 for each day the offence continues. In the case of an offence committed by an individual (such as in the present case) the maximum penalty prescribed is $120,000 with a further penalty of $60,000 for each day the offence continues.

5 Another separate offence created by that part of the Act and one in respect of which there have been a number of charges and convictions in this Court is the offence of unlawful transporting of waste. This offence is provided for in s143 of the Act: If a person transports waste to a place that cannot lawfully be used as a waste facility for that waste, the person, and, if the person is not the owner of the waste, the owner of the waste, are each guilty of an offence. 6 I mention that matter at the outset because it is an agreed fact that in this particular case the transporter of the waste, Terrace Earthmoving Pty Ltd, was recently prosecuted in this Court and convicted by orders of the Court on 19 July in respect of charges arising out of the same facts with which the present Defendant has been prosecuted except for the fact, to which I will need to refer again later, that in the case of the conviction of Terrace Earthmoving of the offence of unlawfully transporting waste, the relevant facts included, in addition to the solid building demolition waste which is the subject of the present charge, waste comprising 19 damaged 200 litre chemical drums containing chemical residues. I take that fact from the publication order that the Court required in that case when the Defendant was convicted and fined the sum of $30,000 where the maximum penalty in the case of a corporation Defendant is $250,000, again a matter that I will need to refer to again later in these reasons. 7 The parties have tendered a Statement Of Agreed Facts (Exhibit 1) which essentially sets out all the material facts relevant to the question of sentence in this particular case. That Statement Of Agreed Facts is supplemented in some measure by the affidavit sworn by the Defendant on 13 August 2004.

8 The subject premises were acquired by the Defendant and his wife in or about 1998. Two separate houses are erected on the premises which contain some acreage, those houses being used by the Defendant to derive rental income. The remainder of the property is being used as a farming property upon which the Defendant runs a small number of cattle and horses.

9 The Defendant obtained development consent from the Port Stephens Council on 3 April 2001 to establish some cattle mounds and batter along one of the internal roadways to the property and was desirous of obtaining fill to carry out that approved development.

10 In that behalf, the Defendant entered into an agreement for the transport to his property of some waste from the Newcastle transfer station, being a waste transfer station operated at Throsby Street Wickham in the City of Newcastle by Mr David Curran. Mr Curran had been looking for a place where he could shred waste material that was removed from the Newcastle City area. His intention was to find a locale where the waste could be deposited and shredded by the use of a mobile shredding machine.

11 The Defendant was contacted a short while before the offence was committed regarding the possibility of using his premises for that purpose. The Defendant agreed to the use of his premises for the storage, shredding and disposal of the waste material. The Defendant met with Mr Curran and another about a week before the transport of waste to the Defendant's premises commenced. It was then agreed that Mr Curran would pay Terrace Earthmoving per load to transfer the waste to the Defendant's premises. The amount involved in the commercial agreement is not known and in the event neither Terrace nor Mr Slade, the Defendant, were paid anything by Mr Curran.

12 It was the Defendant's intention to use some of the shredded waste material to implement the recent approval he had obtained for the creation of the cattle mounds and providing a batter for the internal road on the property. It was agreed that any surplus waste would be disposed of at the nearby Bedminster Waste Facility.

13 As it turned out, Terrace transported and deposited on the Defendant's property additional waste to that which had been agreed, this including the steel drums and piping etcetera being particulars of the waste transported by Terrace, the subject of the charge brought against that company but not the subject of the charge brought against the present Defendant who had not given permission for such materials to be deposited on his property.

14 Terrace transported at least two and possibly three semi-trailer loads of waste from the Newcastle transfer station to the Defendant's premises in the short period of time that I have earlier mentioned being the period covered by the charge. Each load weighed approximately 12 tonnes and as I have noted earlier the nature of the waste was building demolition waste.

15 As it turned out, no more than 40 tonnes of material was received at the Defendant's premises before officers of the Environment Protection Authority arrived on the scene, evidently having been informed by an unknown source of the activity. They arrived on 25 May 2001 whilst a load was being unloaded. The Defendant was operating the excavator which was being deployed to remove the demolition waste from the back of a truck which had brought the waste to the premises. No shredding ever took place at the premises and the officers of the Environment Protection Authority issued an on the spot clean-up direction to the representative of Terrace Earthmoving to dispose of the waste in a lawful manner. This clean-up notice was duly observed and executed within the next few days. In the process, the Defendant participated in assisting the reloading of the deposited material onto trucks to be removed to the Bedminster waste facility. As it turned out, the deposition fees at that facility were paid by Mr Curran. The cleanup was entirely successful and no residual contamination of the site was created. 16 The Defendant's premises have a boundary with land vested in the National Parks and Wildlife Service. They are proximate to the Kooragang Nature Reserve, a wetland of international, national and regional significance in terms of relevant international treaties and the like.

17 The Defendant knew that land in proximity to his, and in fact adjacent to one of the boundaries, was owned by the National Parks and Wildlife Service. Because of the proximity of the Defendant's land to the Kooragang Nature Reserve, being environmentally sensitive land within the meaning of the Protection of the Environment Operations Act, any waste facility established on the land required the issue of an environment protection licence under that Act. No such licence was issued in the present case.

18 Additionally, the activity undertaken on the Defendant's premises and proposed to be undertaken on his premises relevantly required the grant of development consent under the Port Stephens Local Environmental Plan.

19 When interviewed by Environment Protection Authority personnel on the day that they arrived on the scene, that being 25 May 2001, the Defendant admitted that he did not have any consent to use his premises as a waste facility. He said that he had relied upon information given to him by Mr Curran, the owner of the waste, and the operator of the Newcastle Waste Transfer Station from whence the waste deposited on the Defendant's land had originated and that Mr Curran had checked with the Newcastle Council and had been informed that the waste material could be shredded on the Defendant's farm premises.

20 They are the facts relevant to the charge. Questions of aggravated circumstances and mitigating circumstances have been raised in the hearing today and I will presently consider the relevant evidence going to both of those matters but at the outset I should note the issues in dispute between the parties on the question of sentence.

21 Solicitor for the Prosecution submitted that, in the present case, conviction of the admitted offence was called for, together with the imposition of an appropriate fine at the lowest end of the spectrum of gravity for an offence of this kind. Additionally, the Prosecution submitted that it would be appropriate to make an environmental service order pursuant to the provisions of the Protection of the Environment Operations Act, s250(1)(c). That order requires the Defendant to erect a five strand barbed wire fence with timber or concrete posts and gate over the length of the common boundary between the Defendant's premises and the Kooragang Nature Reserve. According to the Defendant's affidavit evidence (which is not challenged), that work will incur an expenditure of some $20,000.

22 In seeking such sentence, the Prosecuting Solicitor has reasoned that the sentence to be imposed in the present case should achieve both general and specific deterrence and should recognise the element of criminal responsibility on the part of the Defendant in the commission of the offence.

23 The competing submission advanced on behalf of the Defendant was to the effect that whereas conviction of the admitted offence is appropriate, the Court's evaluation of the Defendant's responsibility in the commission of the offence, together with the undisputed evidence relevant to an evaluation of the objective elements of the offence, would lead the Court to conclude that it is not appropriate to impose a fine or pecuniary penalty in addition to the impost proposed by the making of an order as earlier indicated in the knowledge of the fact that the Defendant also agrees to pay the Prosecutor's legal costs in the agreed sum of $10,000.

24 Upon analysis, it will be seen that there really is very little in dispute between the rival submissions because at the end of the day there is no dispute that the Court should convict, should impose an order for the payment of the Prosecutor's costs in the sum agreed and should make the Environmental Services Order pursuant to s250(1)(c). The only area of dispute in the rival submissions goes to the question of whether there ought, in addition to those aforesaid orders, be the imposition of a fine. Ultimately, the Prosecuting Solicitor's submission was that a very modest fine of some few thousand dollars should be imposed being the appropriate level of fine having regard to all of the circumstances.

25 Notwithstanding the modesty of the nature of the fine called for by the Prosecutor, Defence Counsel has submitted that even a modest fine would involve an element of disproportion of penalties having regard to the nature of this particular charge and having regard in particular to the penalty imposed upon Terrace Earthmoving in relation to the allied prosecution to which I have earlier referred.

26 To get to that point, Defence Counsel has helpfully analysed the evidence in the present case touching and concerning the proper assessment of the Defendant's criminal responsibility in the case and also drawing attention to what is indisputably the fact that no environmental harm was caused in this particular case. Indeed, Defence Counsel goes further and submits that there was no risk of environmental harm having regard to the nature of the waste material, namely building and demolition waste, that was deposited on the land both in terms of its nature and quantity as well as the very short duration, that being a matter of days, during which it remained upon the land before it was entirely cleaned up pursuant to the clean-up notice.

27 Additionally, the Defence submission has drawn attention to the personal circumstances of the Defendant pertaining both to his state of health and his financial circumstances. In relation to the former, the Defendant carries an ongoing disability as a result of a workplace accident sustained in 1990. He still receives workers compensation in respect of that injury which is attested by the medical certificates to be of some significance involving a considerable amount of disability on the part of the Defendant. He is married with two young children to support and a wife. The evidence also establishes that his financial position is modest. Though owning two properties, their combined capital value once current mortgage commitments are deducted are of modest dimensions.

28 In my opinion and judgment, the Defence submissions should be accepted in all respects concerning both the proper assessment of the objective facts of the admitted offence, in particular the absence of evidence of environmental harm occasioned by the deposit of a little less than 40 tonnes of building and demolition waste on the Defendant's property which, notwithstanding its propinquity to the wetlands of the Kooragang Nature Reserve, by dint of its nature and volume and location on the site did not create an environmental risk. In relation to subjective factors, I am of the opinion that although perhaps over-trusting of the persons with whom the arrangements were set, to the extent I refer here to the fact that Terrace Earthmoving brought to the premises types of waste which were not sanctioned by the Defendant and are not the subject of the admitted offence, the Defendant genuinely relied upon the advice obtained from Mr Curran concerning the lack of need for development consent to be obtained for the proposed activity of handling the materials on the property particularly in the circumstances when he hoped to be able to deploy some of the shredded material as filling for his approved development of creating cattle mounds on his property. Although that information was wrong and although the Defendant was ignorant of the licensing requirements in relation to such an activity on his land because of its propinquity to environmentally sensitive land, I am satisfied that the level of subjective responsibility on the part of the Defendant was not such as to lead to a conclusion that in giving permission for the use of his land the Defendant knew or was aware of the requirements of planning law and environment protection law including the requirement for the obtaining of a licence.

29 The offence created by the Protection of the Environment Operations Act, s144 has been held to be an offence of strict liability but that does not mean that the subjective factors influencing the Defendant's decision to give permission for the use of this land for the aforesaid purpose is not relevant to the assessment of overall criminal responsibility. 30 I of course accept the Prosecution's submission concerning the owners of land upon which waste type materials are deposited. However in the present case I am satisfied that, but for the making of the order pursuant to the Protection of the Environment Operations Act, s 250(1)(c), a fine in the order of $10,000 would have been appropriate having regard to my findings and evaluation of both objective and subjective factors pertaining to the admitted offence and giving the Defendant the benefit of mitigating factors attracted in this case. Those mitigating factors include the early plea of guilty, the total co-operation of the Defendant with the Environment Protection Authority investigating officials, the co-operation in the conduct of this hearing today and the undoubtedly genuine contrition expressed by the Defendant in the present case.

31 In saying that, I also accept the Defendant's willingness to subject himself to the consequences of this offence. In this respect, I refer in particular to the fact that no application on his instructions has been made to the Court for the exercise of any discretion that may have been invoked pursuant to the Crime Sentencing Procedure Act, s10. In other words I am entirely satisfied that though entirely contrite for the offence committed, the Defendant candidly and commendably stands to face the consequences.

32 In arriving at a fine in the order of $10,000 for all of the foregoing reasons I am, of course, particularly influenced by the outcome of the prosecution of Terrace Earthmoving. As noted earlier, the fine imposed by Cowdroy J in that case was $30,000 where the maximum penalty prescribed for the offence is $250,000. The maximum penalty prescribed for that offence, that is transporting waste unlawfully, is the same as the maximum penalty prescribed for the offence of unlawfully permitting land to be used as a waste facility, the section that creates the liability of the Defendant in the present case and although the offences are separate offences they do manifest themselves in the present case in a virtually common set of facts. However those common set of facts are materially different for the reasons that I have earlier articulated that in the case of Terrace Earthmoving, the demolition waste transported and deposited on the Defendant's land included 19 damaged 200 litre drums with chemical residues and the nature of the admitted offence in that charge is obviously more serious than that in the present charge where the waste material was confined to building and demolition waste. 33 Accordingly, using the Terrace Earthmoving sentence as a guide, and in my respectful judgment a good guide to assessing an appropriate penalty in the present case, it would be necessary to adjust it to reflect the different maxima imposed, in this case $120,000 compared with the $250,000 in Terrace. If applying the same level of penalty that would bring a $30,000 penalty on a $120,000 maximum to below $15,000 and the objective circumstances of the Terrace conviction are, for the reasons that I have given, properly to be regarded as more serious when considered objectively as they included the risk of environmental damage of leaking liquid in a wetland environment compared with the static and solid nature of demolition and building waste in the present case.

34 That downwards adjustment would again produce a commensurate penalty of around $10,000. However in this case, where the Prosecutor also seeks the imposition of the order under 250(1)(c) of the Protection of the Environment Operations Act, I am of the opinion that it is appropriate for the reasons given that that obligation be imposed without there being any other penalty imposed upon conviction. Such an outcome is conformable with the provisions of s243(3) of the Act.

35 For all of the foregoing reasons, therefore, I make the following orders: 1. The Defendant is convicted of the offence as charged. 2. Pursuant to the Protection of the Environment Operations Act , s250(1)(c), I make the order in accordance with Exhibit 2. 3. The Defendant is ordered to pay the prosecutor's legal costs in the agreed sum of $10,000. 4. The exhibits may remain with the Court papers.

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.