Environment Protection Authority v Terrace Earthmoving Pty Ltd & Page

Judgment 1Land known as 168 Cabbage Tree Road, Williamtown is a rural/residential allotment having an area of about 20.3 hectares. It is a long narrow allotment with a frontage of about 142m to the northern side of Cabbage Tree Road and a side boundary length of about 1427.5m. The legal description of the land is Lot 132 in Deposited Plan 609165 (Lot 132). 2Mario Ciccanti, together with this wife, commenced to reside on Lot 132 early in 2002. The dwelling in which they reside is erected close to the road frontage, as were some ancillary buildings. While Lot 132 is described as generally being flat, both the front and rear sections are at levels that are higher than the central section of the land. The low lying central section was for periods throughout the year, particularly during the winter months, boggy and generally impassable by conventional motor vehicles and trucks. It is also an area on Lot 132 that has a significant tree cover. 3When Mr and Mrs Ciccanti moved to Lot 132, they had no experience of rural life. Shortly after taking occupation, they purchased a number of cows to graze on the land. Within a short space of time their livestock disappeared. In the course of investigating their disappearance, they came to appreciate that they could not readily gain access through the central section of Lot 132 for the purpose of checking and repairing boundary fences around the more elevated northern section of their property. 4They also experienced bushfires both on and adjacent to Lot 132. Fire fighting vehicles were not able to traverse the wet and boggy central section in order to gain access to the rear of the property. 5All of these events caused Mr Ciccanti to propose the construction of an internal access road adjacent to the eastern boundary of the property in order to provide access from the higher ground at the southern end to the higher ground on the northern section of the property. To this end, he engaged the services of the defendant, Terrace Earthmoving Pty Ltd (Terrace). 6The various business activities conducted by Terrace included earthmoving, land excavations, land clearing and building demolition. Terrace had also undertaken road construction, including the construction of internal farm roads in the Cabbage Tree Road area of Williamtown. Geoffrey Page was at all relevant times the sole director of Terrace. As a consequence of agreement reached between Mr Ciccanti and Mr Page, on behalf of Terrace, the construction of the internal access road proposed by Mr Ciccanti commenced late in November 2005. That construction work continued until 1 March 2007. 7The process of road construction generally involved excavation along its proposed path to a depth of 600mm to 800mm and then placement of fill into the excavation sufficient to achieve a road level after compaction that had a surface about 800mm above the surrounding ground level. The excavated material was used as a form of road batter. 8The fill material used for road construction was obtained from sites at which Terrace was carrying out demolition or excavation works. Demolition or excavated material was taken from those sites and transported to Lot 132 in trucks belonging to Terrace. The material utilised generally comprised broken concrete, bricks, tiles, soil and rock. There is conjecture as to whether other materials were included within the matrix of material that I have described. 9As a consequence of Terrace's transportation of these materials and their use for road construction on Lot 132, Terrace has been charged with two offences against s 143(1)(a) of the Protection of the Environment Operations Act 1997 (the POEO Act). As the sole director of Terrace at the time at which these activities were undertaken, Mr Page has also been charged with the identical offences pursuant to s 169 of the POEO Act. 10Each of Terrace and Mr Page have pleaded not guilty to the charges brought against them. A trial having been held, it is necessary to determine whether each charge is proven to the requisite criminal standard.