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[2026] NSWLEC 18
General information, not legal advice.
Land and Environment Court (NSW)
2026-02-26
Pepper J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Environment Protection Authority v Tumut Waste Pty Ltd [2026] NSWLEC 18
Hearing dates: 8 and 9 December 2025
Date of orders: 26 February 2026
Decision date: 26 February 2026
Jurisdiction: Class 5
Before: Pepper J
Decision: See orders at [190].
Catchwords: OFFENCES AND PENALTIES: occupier of landfill charged with emission of offensive odour – contravention of an environment protection licence in respect of leachate management – pleas of guilty – sentencing principles – odour affected local residents over a three month period – actual environmental harm caused – multiple victims involved – harm reasonably foreseeable – practical measures available to avoid or mitigate the harm – control over the causes of the offences – moderate objective seriousness of odour offence – low objective seriousness of breach of licence offence – no previous convictions – good character – no likelihood of reoffending – remorse shown – assistance to the prosecutor – general deterrence warranted – totality principle applied – payment to Environmental Trust ordered – publication order and notification order made – costs agreed.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A(2), 21A(3)
Criminal Procedure Act 1986, ss 257B, 257G
Environmental Trust Act 1998, s 7
Fines Act 1996, ss 6, 122(2)
Protection of the Environment Operations Act 1997, ss 3(a), 3(d), 64, 116(1), 129, 241, 250(1)
Cases Cited: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234
Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304
Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339
Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109
Director-General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110
Director-General, Department of Environment and Climate Change v Jack & Bill Issa Pty Ltd (No 5) [2009] NSWLEC 232; (2009) 172 LGERA 225
Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483
Elyard v The Queen [2006] NSWCA 43; (2006) 45 MVR 402
Environment Protection Authority v Barnes [2006] NSWCCA 246
Environment Protection Authority v Bartter Enterprises Pty Ltd (No 4) [2021] NSWLEC 45
Environment Protection Authority v Crown in the Right of New South Wales [2019] NSWLEC 178
Environment Protection Authority v Dial-A-Dump (EC) Pty Ltd [2024] NSWLEC 21; (2024) 261 LGERA 103
Environment Protection Authority v Hanna [2018] NSWLEC 80; (2018) 235 LGERA 114
Environment Protection Authority v Orica (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103; (2014) 206 LGERA 239
Environment Protection Authority v Ravensworth Operations Pty Ltd [2012] NSWLEC 222
Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100
Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 4
Environment Protection Authority v Whitehaven Coal Mining Ltd [2019] NSWLEC 27; (2019) 239 LGERA 31
Gore v The Queen [2010] NSWCCA 330; (2010) 208 A Crim R 353
Harris v Harrison [2014] NSWCCA 84; (2014) 86 NSWLR 422
Harrison v Perdikaris [2015] NSWLEC 99
Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348
Jindalee Road Wines Pty Ltd v Natural Resources Access Regulator; Littore v Natural Resources Access Regulator [2025] NSWCCA 215
Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Mouawad v The Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28
Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253
R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
R v Dodd (1991) 57 A Crim R 349
R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
R v Nichols (1991) 57 A Crim R 391
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Oliver (1980) 7 A Crim R 174
R v Thomson [2000] NSWCCA 309; (2000) 49 NSWLR 383
R v Visconti [1982] 2 NSWLR 104
R v Wickham [2004] NSWCCA 193
Secretary, Department of Planning and Environment v Sell & Parker Pty Ltd [2022] NSWLEC 60; (2022) 253 LGERA 1
Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561
Category: Sentence
Parties: Environment Protection Authority (Prosecutor)
Tumut Waste Pty Ltd (Defendant)
Representation: Counsel:
P English and E Dunlop (Prosecutor)
P W Larkin SC and J Caldwell (Defendant)
Solicitors:
Environment Protection Authority (Prosecutor)
ClarkeKann Lawyers (Defendant)
File Number(s): 2024/263426 and 2024/263429
Publication restriction: Nil
Tumut Waste Pty Ltd (“Tumut Waste”) has pleaded guilty to two offences against the Protection of the Environment Operations Act 1997 (“POEOA”).
The first is an offence contrary to s 129(3) of the POEOA, in that Tumut Waste was the occupier of Bellettes Landfill Gilmore at 10 Killarney Road, Gilmore (Lots 62 DP 757252 and 94 DP 757252) (“premises”), in which waste disposal was carried out under the authority conferred by Environment Protection Licence number 20596 (“licence”) and caused the emission of offensive odour from the premises in contravention of s 129(3) of that Act (“the offensive odour offence”). The particulars of the offensive odour offence are that between 26 June and 29 September 2023, Tumut Waste failed to have adequate controls in place to collect landfill gas (“LFG”) and treat it to remove odorous compounds, causing the emission of odour from the premises.
The second offence concerns a contravention of s 64(1) of the POEOA, in that Tumut Waste contravened a condition of the licence (“the leachate management offence”). The particulars of the leachate management offence are that between 6 September 2022 and 2 August 2023, Tumut Waste contravened condition O1.1 of the licence by failing to appropriately manage leachate generated within cell 10A at the premises.
For the reasons below, I find that Tumut Waste is liable to pay a total monetary penalty of $270,000. It is also ordered to pay costs agreed in the amount of $250,000.
The factual background to the offences was not in dispute. It was contained principally in a comprehensive statement of agreed facts which is appended in full to these reasons at annexure ‘A’ and the salient features of which are summarised below.
The premises are located in the Snowy Valleys Council (“the Council”) local government area in Gilmore. It is located near several industrial businesses, including:
(a) Associated Kiln Driers Pty Ltd (“AKD”), an integrated forestry and timber processing sawmill located at 135-165 Snowy Mountains Highway, Tumut. AKD’s Timber Treatment Facility is located directly opposite the premises; (b) Australian Native Landscapes (“ANL”), a recycling and composting facility for forest industry and green waste, located at 28 Killarney Road, Gilmore; (c) the Snowy Valley Recycling Centre (“SVRC”), which accepts recycling and household putrescible waste, including food and garden organics, located at 6 Killarney Road, Gilmore; and (d) Visy Pulp and Paper Kraft Mill (“Visy”), which is a fully integrated unbleached kraft pulp and paper mill located at 436 Gadara Road, Gadara.
O1.1 Licenced activities must be carried out in a competent manner.
This includes:
a) the processing, handling, movement and storage of materials and substances used to carry out the activity; and
b) the treatment, storage, processing, reprocessing, transport and disposal of waste generated by the activity.
On 21 August 2020, development consent DA 2019/0172 was granted (“the consent”). It permitted an increase in the limit of general solid (non-putrescible) waste permitted at the premises from 5,000 tonnes per annum to 40,000 tonnes.
Additionally, the consent authorised the construction of a new landfill cell to be excavated and filled in two stages: cell 10A and cell 10B. Cell 9, an older landfill cell, was also in operation at the time the offending conduct took place.
The licence was varied to accommodate the construction of cell 10A and 10B.
An Environmental Impact Statement submitted in support of the development application, dated October 2019 (“the EIS”), stated that leachate would be collected through a leachate collection system and pumped into a leachate storage pond.
Appended to the EIS was a “Risk Assessment”. It stated that “operational phase odour impacts on surrounding receptors” had a “major consequence risk”, that these risks were “likely” and that they had a “high” risk rating absent mitigation measures being implemented. The “proposed mitigation” column in the “Risk Assessment” indicated that a Landfill Environmental Management Plan (“LEMP”) was to “include appropriate mitigation measures”.
The LEMP (dated February 2021) provided for a “landfill gas monitoring program” located “over the current landfill site and over the rehabilitated site occasionally if deemed necessary”. It noted that:
…should landfill surface levels of methane above 500 ppm [(parts per million of air)] be detected, remedial action will be implemented. This action will be to repair, replace or add to the existing cover material.
The LEMP did not make any provision for management or monitoring of odour at the premises. Section 2.2.5 of the LEMP provided that the operator should cover compacted waste daily to “limit run-on and infiltration of water, controlling and minimising the risk of fire, minimising the emission of landfill gas and windblown litter, suppressing odour, reducing fly propagation and rodent attraction”. It stated that the “material selected for cover purposes ideally should be free draining and, preferably, of low clay content”.
The relevant NSW Environment Protection Authority’s (“EPA”) Environmental Guidelines Solid W**aste L**andfills (2nd ed, 2016) (“the Guidelines”) described what a leachate extraction and level-control system should comprise, namely (as summarised by the EPA and agreed to between the parties):
(a) that “a leachate monitoring program should be established”, which should address “data on the volumes of leachate being generated and removed from a landfill cell” (s 4.1); (b) that management practices must be adopted to “minimise emissions of untreated landfill gas to air and through sub-surface strata and services” and that “appropriate response action must be taken if the trigger or limit values specified in these guidelines are exceeded” (s 5); (c) that “the extent of gas controls will depend on a landfill gas risk assessment for the site”, which “should be done initially and should then be updated as gas monitoring data is obtained” (s 5.1); (d) that “a surface gas monitoring program should be established to detect any emissions through the cover/capping material” and that “the threshold level for further investigation and corrective action is 500 parts per million (volume/volume) of methane at any point on the landfill surface for intermediate and finally capped areas” (s 5.2); (e) that a required outcome is that “the landfill must not adversely affect amenity in the locality, in particular: offensive odour impacts must not occur at off-site locations” (s 6); and (f) that steps should be taken to minimise the emission of offensive odour, including by adopting the technique outlined for landfill gas management in s 5 of the Guidelines (s 6.1).
The construction of cell 10A was completed on 29 July 2022, and plans were in place for the periodic pumping of leachate from that cell.
General solid (non-putrescible) waste was landfilled in cells 9 and 10A. This waste included:
(a) construction and demolition waste; and (b) waste from Visy, which included plastics, dregs and grits, ragger and plastic machine ejects.
Following cell 10A becoming operational, leachate levels within it were monitored by Martin Hay, a director of Tumut Waste. No records were kept of the level of leachate recorded, or when leachate monitoring occurred, although Hay states that this took place “at least once a week, maybe more when it started to rain a lot”.
Between 24 August 2022 and 2 August 2023, leachate accumulated in cell 10A, with the level of leachate exceeding 300 mm above the basal liner from at least 6 September 2022.
As at 2 August 2023, the level of leachate in cell 10A would have measured 3.6 m above the cell floor.
The leachate was not removed until 2 August 2023, when it was pumped from cell 10A into the leachate pond at the premises.
On 19 July 2023 Hay estimated that the leachate levels in cell 10A were approximately 3 m deep. However, by 30 July 2023 the leachate levels in cell 10A were unknown.
It is the opinion of the EPA’s waste management expert, Paul Lightbody, that a competent operator of landfill would have undertaken sufficient monitoring to identify when leachate levels exceeded 300 mm at the cell 10A sump, and would have then commenced the transfer of leachate to the available leachate pond and that Tumut Waste failed to do so.
On 26 June 2023 the Environment Line (operated by the EPA) received a call with respect to odour from the premises. On 27 June and 3 July 2023, the EPA inspected the premises, but no odour was detectable.
On 19 July 2023 EPA officers Jessica Creed, Briohny Seaman, Cooper Harmer and Allan Price attended the premises and detected a strong rotten egg odour. Harmer and Price confirmed it was the same odour that they had smelt along the Snowy Mountains Highway in Gilmore near the premises earlier that day.
On 20 July 2023 Creed had a telephone conversation with Hay. Creed indicated that, among other things, “other landfills [with] non-putrescible cells had started generating hydrogen sulphide gas within the cell as a result of water and that those premises had to install landfill gas capture systems to treat the gas issue”.
From 20 July 2023 the EPA installed 13 wireless hydrogen sulphide (“H2S”) gas monitors on the border of the premises and in the community. The monitors recorded readings that varied depending on their position and the day on which the readings were taken:
a. On 20 July 2023, an Acrulog logger was installed on the fence-line between the Premises and the Snowy Valley Recycling Centre. This logger was moved inside a shed on that premises on 29 July 2023, and then back outside on 15 August 2023:
i. Between 22 July 2023 and 24 July 2023, the Acrulog logger detected a minimum daily reading of 0 ppb and a maximum daily reading of 2,500 ppb.
ii. Between 25 July 2023 and 31 July 2023, the Acrulog logger detected minimum daily readings of 0 ppb and maximum daily readings of between 13 ppb and 390 ppb.
iii. Between 1 August 2023 and 31 August 2023, the Acrulog logger detected minimum daily readings of 0 ppb and maximum daily readings of between 8 ppb and 248 ppb.
iv. Between 1 September 2023 and 29 September 2023, the Acrulog logger detected minimum daily readings of 0 ppb and maximum daily readings of between 0 ppb and 471 ppb.
v. The average reading between 20 July 2023 (the date of the Acrulog logger’s installation) and 29 September 2023 at the Snowy Valley Recycling Centre was 23.45 ppb.
b. On 22 July 2023, an Acrulog logger was installed outside 40 Whatmans Lane, Gilmore, residence of Donald and Helen Whatman:
i. Between 22 July 2023 and 31 July 2023, the Acrulog logger detected minimum daily readings of 0 ppb and maximum daily readings of between 14 ppb and 397 ppb.
ii. Between 1 August 2023 and 31 August 2023, the Acrulog logger detected minimum daily readings 0 ppb and maximum daily readings of between 3 ppb and 416 ppb.
iii. Between 1 September 2023 and 29 September 2023, the Acrulog logger detected minimum daily readings 0 ppb and maximum daily readings of between 0 ppb and 37 ppb.
iv. The average reading between 22 July 2023 (the date of the Acrulog logger’s installation) and 29 September 2023 was 1.89 ppb.
c. On 23 July 2023, an Acrulog logger was installed on the northern border of the Premises between ANL and the Premises:
i. On 23 July 2023, the Acrulog logger detected a minimum daily reading of 0 ppb and a maximum reading of 379 ppb.
ii. On 24 July 2023, the Acrulog logger detected a minimum daily reading of 0 ppb and a maximum daily reading of 2,500 ppb.
iii. Between 25 July 2023 and 31 July 2023, the Acrulog logger detected minimum daily readings of 0 ppb and maximum daily readings of between 100 ppb and 767 ppb.
iv. Between 1 August 2023 and 31 August 2023, the Acrulog logger detected minimum daily readings of 0 ppb and maximum daily readings of between 10.07 ppb and 1,188 ppb.
v. Between 1 September 2023 and 29 September 2023, the Acrulog logger detected minimum daily readings of 0 ppb and maximum daily readings of between 0 ppb and 848 ppb.
vi. The average reading between 23 July 2023 and 29 September 2023 was 15.79 ppb.
d. On 22 July 2023, an Acrulog logger was installed between Boundary Street and Clarke Street, Tumut:
i. The Acrulog logger detected a minimum daily reading of 0 ppb and a maximum daily reading of 42 ppb between 22 July 2023 (the date of the Acrulog logger’s installation) and 29 September 2023.
ii. The average reading between 27 July 2023 and 29 September 2023 was 0.08 ppb.
e. On 15 August 2023, an Acrulog logger was installed on Batlow Road, Tumut:
i. The Acrulog logger detected a minimum daily reading of 0 ppb and a maximum daily reading of 3 ppb between 15 August 2023 (the date of the Acrulog logger’s installation) and 29 September 2023.
ii. The average reading between 15 August 2023 and 29 September 2023 was 0.000918 ppb.
f. On 28 July 2023, an Acrulog logger was installed at the McCauley Catholic College, Tumut:
i. The Acrulog logger detected a minimum daily reading of 0 ppb and a maximum daily reading of 11 ppb between 28 July 2023 and 29 September 2023.
ii. The average reading between 28 July 2023 (the date of the Acrulog logger’s installation) and 29 September 2023 was 0.0310 ppb.
(a) on the morning of 12 July 2023, Jay Conte, an EPA Operations Officer, detected a “distinct, moderately unpleasant, rancid, gas-like odour” at the turn off from Killarney Road to the premises; (b) on the morning of 13 July 2023, Harmer detected a “strong egg or sulphur-like odour” above Sandy Creek, along the Snowy Mountains Highway, and between the premises and AKD. The odour also had a “fuel or smoky scent to it”; (c) on the evening of 17 July 2023, Harmer detected a “strong rotten egg smell, with a sour scent” at AKD and a “faint rotten egg smell” at Whatmans Lane, Gilmore; (d) on the evening of 19 July 2023, Conte detected a “very weak, mildly unpleasant sulphur” odour at Whatmans Lane, a “distinct, moderately unpleasant sulphur smelling, sewer odour” at ANL, and a “weak, mildly unpleasant sulphur smelling, sewer odour” at AKD; (e) on the morning of 20 July 2023, Conte detected a “distinct, very unpleasant, sulphur smelling sewer odour” at AKD; a “very weak, mildly unpleasant sulphur odour” at Whatmans Lane; a “very weak, mildly unpleasant sulphur smelling” odour at Burbury Mews, Tumut; a “very weak, mildly unpleasant sulphur smelling” odour at Bull Paddock, Tumut; and a “very weak, mildly unpleasant sulphur smelling” odour at ANL. That evening, Conte detected a weak, mildly unpleasant sulphur smelling odour at ANL; (f) on the morning of 21 July 2023, Conte detected a “very weak, mildly unpleasant sulphur smelling odour” at AKD, and a “very weak, mildly unpleasant sulphur smelling odour” at ANL; (g) on 22 July 2023 Ruby Sutherland, an EPA Project Officer, undertook an odour survey and smelt a “distinct unpleasant sulphur smelling odour” on Wynyard Street, Tumut, and a “strong unpleasant sulphur smelling odour” at the corner of Whatmans Lane and the Snowy Mountains Highway. Outside the entrance to the premises she smelt a “strong unpleasant rancid odour”; (h) on 24 July 2023 Ronald White, an EPA Waste Compliance Officer, conducted an odour survey at Killarney Road, and smelt a pungent sulphur odour that varied between “very weak” to “distinct”. He also detected a sulphur smell at the top of Whatmans Lane where Whatmans Lane adjoins the Snowy Mountains Highway. On 25 July 2023 White detected a “strong” sulphur/rancid smell at a location outside the front gates of the premises; a “strong sulphur smell” at the corner of Whatmans Lane and the Snowy Mountains Highway; a “distinct” sulphur smell at Jarrah Oval, Booral Street; a “weak” sulphur smell at 218 Snowy Mountain Highway and Whatmans Lane; and a “very weak” sulphur smell which disappeared within a few minutes outside Tumut Public School. On 26 July 2023 White smelt a “distinct” odour immediately outside the premises, and a “very weak” odour at the top of Whatmans Lane where it adjoins the Snowy Mountains Highway. On 27 July 2023 White smelt a “distinct” sulphur smell outside the front gate of the premises and in the AKD carpark; (i) between 28 July and 30 July 2023 Seaman undertook odour surveys in the Gilmore and Tumut areas. On the evening of 28 July 2023, she detected an intermittent distinct sulphur odour at AKD. On the morning of 29 July 2023, Seaman detected a very weak sulphur odour at AKD. On the evening of 29 July 2023, she detected unpleasant “pockets” of sulphur odour, like rotten egg gas, at AKD. On the morning of 30 July 2023, she detected “a very weak sulphur odour like rotten egg gas” on Clarke Street, Tumut, that “did not last long”. She also smelt a very weak sulphur odour, like rotten egg gas, at Whatmans Lane, which was detected approximately three minutes into the odour survey and which “did not last very long”; (j) on the morning of 31 July 2023, Harmer detected a “weak sulphur and rotten egg smell” at the Batlow Road and Snowy Mountains Highway turnoff, and a strong sulphur odour at AKD; (k) on 3 August 2023 Sutherland undertook an odour survey and smelt a “distinct sulphur smelling odour with minor unpleasantness” near “Tumut Old Bridge” and a “strong sulphur smelling odour with a moderate unpleasantness” on the side of the Snowy Mountains Highway, north of Whatmans Lane; (l) on the morning of 10 August 2023, Creed detected a very weak rotten egg smell at the Amaroo Motel, a distinct H2S smell at Whatmans Lane, and a weak H2S smell on Killarney Road; and (m) on the morning of 11 August 2023, Creed detected a “very weak” to “weak” sulphur odour at the corner of Whatmans Lane and Snowy Mountains Highway, and a “distinct” to “strong” sulphur smell at the corner of the Snowy Mountains Highway and Killarney Road.
(a) Visy in respect of 27 of the complaints; (b) SVRC in respect of 16 of the complaints; and (c) other sources in respect of three of the complaints.
The source of the odour was not identified in respect of 80 of the complaints.
Of the 213 complaints, most described the odour as a “Tip/Waste/Landfill/Leachate” smell, followed by an “egg” smell, and then a “sulphur/H2S’ smell”, or “No description”. Some callers described a mixture of these smells.
Approximately 126 of the odour complaints were attributed to “Bellettes/Tumut Waste” by the complainant or the EPA officer who received the complaint. The majority of these complaints described the strength of the reported odour as “Bad/Strong/Offensive” or “Very/High”. About 44 of the complaints offered no description as to the strength of the odour.
Of the 213 complaints, 139 individual complainants were identified. Of these, 112 of the complainants made one complaint, 27 complainants made multiple complaints. Of the 27 complainants who made multiple complaints, there were eight complainants who made between five and 10 complaints, and one complainant who made 21 complaints. That is, there were 67 complaints from nine complainants.
a. Cameron Ellison, a teacher at McAuley Catholic College in Tumut, resides at 474 Snowy Mountains Highway, Gilmore. On 3 July 2023, at the time he made a complaint to the Environment Line, Mr Ellison said that the Odour was present “almost constantly for the past 30-40 days”. The Odour “progressively got worse in frequency and intensity over time”, and was “most noticeable” from June 2023 to early August 2023. Mr Ellison noted that the Odour “interrupted my normal habits” and “at times, would cause me to suffer from headaches… I would generally suffer from them at least once or twice a week”. He was woken by the odour between 3-4am “5-10 times in June and early July 2023” and “did not open the windows or doors to my home, as I was trying to prevent the Odour from entering the house”. He noted that the Odour could be smelt at the school both inside and outside the rooms. An annexed EPIC notification record of his call on 4 August 2023 records a “[h]orrendous rotten egg odour... permeating throughout the house”. Mr Ellison noted that the Odour was “similar to the Visy Mill smell”, with which he was familiar. Mr Ellison noted [that] “odour is a noticeable, common and usual thing in Tumut due to industries like the VISY Mill”. Mr Ellison described the smell from the Visy Mill as a “sulphur like smell or wet sulphur, rotten gas smell or fart – like smell”. Mr Ellison described the Odour as similar to the smell from the Visy Mill but “on steroids, by that I mean it was extremely more concentrated and stronger than the usual Visy smell, much more offensive”.
b. John Lawson resides at 95 East Gilmore Road, Gilmore and is the partner of Susan Quinnell. He reported smelling a “horrendous and shocking” Odour on 13 July 2023, which he described as a “rotten egg, rotten potato, hydrogen sulphide smell”. Mr Lawson knew what H2S smelt like having worked in the timber industry for many years. Mr Lawson noted that the Odour “took my breath away and I had feelings of nausea…it was almost making me dry retch and I felt like I needed to throw up”. He said he also smelt the Odour at his home on 23 July 2023 (“absolutely unbearable… so strong and unpleasant it was causing me to physically dry retch”) and 29 July 2023 (“when I went outside the Odour was very strong and unbearable”). Mr Lawson also smelt the Odour on other occasions, including when driving with his grandchildren. He was concerned of the health effects the Odour may have on him and his grandchildren.
c. Susan Quinnell resides at 95 East Gilmore Road, Gilmore with Mr Lawson. She gave evidence of having smelt the Odour at home or outside her home on five days between 13 July 2023 and 28 September 2023 inclusive, and notes that it was “starting to be a daily occurrence”. On 19 July 2023, she described the Odour as “a very strong, offensive, rotten egg smell”. She also described the Odour like “a gas smell, rotten potatoes or sour rotten potato smell and/or rotten egg smell” and stated that “The smell is like you can taste it, and once the smell gets into your nose, you cannot get it out of your senses”.
d. Alexandra Walker lives at 4 Burbury Mews, Tumut. Her evidence was that she smelt a “putrid” – “rotten egg gas/sulphur based” smell from the start of the charge period in June 2023 that she had never smelt before. She continued to smell the Odour to September 2023, and would regularly be woken up by the smell around 3 or 4 am. The smell was “consistent” to early August, in that “the rotten egg odour could be smelt on most days and nights during the month”. Her “eyes felt irritated and watery” upon smelling the Odour, and after smelling the Odour on one occasion she had a mild headache. Ms Walker began closing all the windows to lock out the Odour, and felt anxious and stressed for herself and her family.
e. Donald Whatman lives at 40 Whatmans Lane, Gilmore and is 76 years old. He reported that, on one occasion, the Odour caused his eyes to water and he suffered from nausea, loss of appetite, headaches, coughing, and a sore throat. On 17 July 2023, Mr Whatman was at his home when he smelt the Odour which he described as “a very bad rotten egg smell” and Mr Whatman recalls “sweating and coughing”. He and his wife used duct tape to put seals around the house in the afternoons and could not use the air conditioning during this time as he had taped it up. They first put the seals from the beginning of the charge period and removed the seals in late September 2023. Mr Whatman also reduced the frequency of and eventually stopped taking his morning walks as he did not want to smell the Odour. On several occasions, Mr Whatman left his home at night and drove to Bila Park to sleep in his car or ute in order to avoid the Odour. Tumut Waste paid for Mr Whatman to reside at alternative accommodation on two occasions.
f. Helen Whatman is the wife of Donald Whatman. Her evidence was that she had suffered, but not to the same extent as Mr Whatman, and had felt stressed and frustrated watching him suffer. Mrs Whatman and Mr Whatman sealed up the back door of their home at about 4:30 pm every afternoon until 30 September 2023. She felt like she was living in jail and was scared that opening the door would let the Odour inside. She and Mr Whatman were also limited to using the inside fireplace, as they had to seal up the air conditioning unit, which was extra physical work at their age. During the charge period, she suffered from tiredness from lack of sleep when the Odour could be smelt inside the house. Tumut Waste paid for Ms Whatman to reside at alternative accommodation on two occasions.
g. Tony Whatman lives at 64 Whatmans Lane and is the son of Donald and Helen Whatman. Tony indicated that the Odour reminded him of “the smells I used to smell at VISY” but that he had never smelt an odour like he experienced since the beginning of the charge period. He smelt the Odour “on and off since early June 2023”, and on most mornings after waking up. He described the Odour as “a poison, caustic smell”. It caused his eyes to be “sore and stinging”, and not long after smelling the Odour he would have a headache. By late August, he was smelling the odour “nearly daily”. Due to concerns about his children using the bus stop because of the Odour, his wife started driving the children to school. Throughout the charge period, he would not let his children play outside the house, as he did not want them to be exposed to the Odour. From July 2023 until the end of the charge period, all their clothes smelt of the Odour, and would need to be dried in the dryer rather than on the clothesline to prevent the Odour from “getting in them”. This caused higher electricity bills.
h. John Kite lives at 5 Hassett Street, Tumut. Mr Kite gave evidence that he has smelt an odour in Tumut since the “Visy Mill commenced operations over 20 years ago”. However, in mid 2023 he detected in Tumut a new odour, being an “earthy sulphur odour” which was “similar”, but “much more concentrated, pungent and more offensive” than the “[h]istoric” odour. Mr Kite gave evidence that he could feel his body “screaming at me ‘don’t breathe it in’” and that he would try and hold his breath as long as he could before breathing out and having to breathe the new odour back in again. Mr Kite gave evidence that between June and September 2023, he experienced a number of symptoms which he attributed to the odour, including irritated sinuses, congested throat, “bubble-like” sensations in his upper stomach, heart palpitations (which he attributed to stress), watery eyes, trouble sleeping, and like his general wellbeing was gone. Mr Kite experienced mental angst about whether breathing in the new odour would have a negative health impact. During this period he would stay inside to avoid smelling the new odour.
(a) increased water entry into the waste due to a rainfall event at the premises. During the period from 23 August 2022 to 19 July 2023, the town of Tumut received an estimated 1,109.5 mm of rainfall, with the Riverina receiving its highest annual rainfall on record since 1900 (“the rainfall event”). The rainfall event generated leachate, created anaerobic conditions at the premises that were conducive to the production of H2S, and reduced the timeframe for the onset of significant LFG formation at the premises; and (b) LFG and odour mitigation actions were not undertaken until 27 July 2023, and leachate pumping did not occur from cell 10A until 2 August 2023.
On 21 July 2023 Creed issued a clean-up notice under the POEOA to Tumut Waste (“the clean-up notice”). The clean-up notice directed Tumut Waste to “take reasonable action to manage odorous gas emissions from within the main waste cell at the Premises, such as by covering and capping the cell or another suitable method as advised by a suitably qualified consultant” by 24 July 2023.
That same day, NorthStar Quality Pty Ltd (“NorthStar”) attended the premises to conduct an inspection in response to the clean-up notice, and offered its professional advice on the nature and extent of odour emissions at the premises.
On 27 July 2023 NorthStar conducted ground gas concentration monitoring for methane and H2S at the premises.
On 1 August 2023 the clean-up notice was varied so that Tumut Waste had to “take all reasonable actions to manage odours coming from within the Premises”.
On 9 August 2023 the EPA issued Tumut Waste with a prevention notice (“the prevention notice”). That notice required Tumut Waste to:
(a) cease accepting waste at the premises from Visy; (b) reduce the acceptance of non-putrescible waste to no more than 400 tonnes per week, which could only be disposed of in cell 9; (c) apply daily cover material to a minimum depth of 150 mm within cell 9 before the close of business each day; (d) take action to ensure that the leachate levels in cells 9 and 10A were kept at or below 300 mm above the basal liner of each cell; (e) prohibit the irrigation of leachate over waste cells at the premises; and (f) cease the use of cell 10A until LFG controls were implemented.
On 17 August 2023 NorthStar reported that based on initial data, “it would be likely that landfill cell 10A represents the dominant source of odour from the Premises”.
On 20 September 2023 the EPA varied the prevention notice to:
(a) allow waste from Visy to be accepted at the premises, except for “dregs and grits waste” which, after sampling the separate Visy waste streams was identified as containing a high sulphur and moisture content; and (b) increase the amount of non-putrescible waste permitted to be accepted at the premises to 500 tonnes per week.
In response to the odour emitted from the premises, by 26 July 2023 Tumut Waste had covered cell 10A with 1 to 1.5 m of clay.
On 13 September 2023 Tumut Waste entered into a contract with LGI Limited (“LGI”) to install a trial LFG extraction system for cell 10A (“the trial system”). The trial system comprised six drilled wells which were connected to a modular combustion flare unit.
The installation of the trial system was completed and commenced operation by 29 September 2023. Inspections of the trial system were conducted throughout October and November 2023.
By October 2023 only three complaints regarding odour in the Gilmore and Tumut area were made to the Environment Line. This represented a significant reduction in recorded grievances.
Cell 9 was also connected to the trial system in December 2023, and LFG from that cell was collected and combusted.
Under a contract between LGI and Tumut Waste executed on 20 December 2023, LGI permanently installed the gas extraction system at the premises following cessation of the trial. The expansion of the gas extraction system was registered as a carbon abatement project under the Emissions Reduction Fund, a scheme administered by the Clean Energy Regulator. Tumut Waste paid LGI $244,552.45 for installing and managing the trial system.
129 Emission of odours from premises licensed for scheduled activities
(1) The occupier of any premises at which scheduled activities are carried on under the authority conferred by a licence must not cause or permit the emission of any offensive odour from the premises to which the licence applies.
…
(3) A person who contravenes this section is guilty of an offence.
offensive odour means an odour—
(a) that, by reason of its strength, nature, duration, character or quality, or the time at which it is emitted, or any other circumstances—
(i) is harmful to (or is likely to be harmful to) a person who is outside the premises from which it is emitted, or
(ii) interferes unreasonably with (or is likely to interfere unreasonably with) the comfort or repose of a person who is outside the premises from which it is emitted, or
(b) that is of a strength, nature, duration, character or quality prescribed by the regulations or that is emitted at a time, or in other circumstances, prescribed by the regulations.
64 Failure to comply with condition
(1) Offence If any condition of a licence is contravened by any person, each holder of the licence is guilty of an offence.
In addition to the statement of agreed facts, the EPA relied upon a bundle of documents, including, in particular, the Guidelines.
One of the agreed facts was a summary of the Lightbody opinion. Lightbody was cross-examined and despite questioning, did not resile from his view that a competent operator would have undertaken sufficient monitoring to identify when leachate exceeded 300 mm above the basal liner at the bottom of cell 10A’s sump (T9:40-10:01).
Tumut Waste relied upon the statement of agreed facts and extracts of a webinar recording concerning the “NSW Environmental Guidelines for Solid Waste Landfills” held on 11 November 2025, which included the following conversation between Gayle Sloan, CEO of the Waste Management and Resource Recovery Association of Australia, and Christopher Burton, a Senior Technical Advisor from the EPA (emphasis added):
TIME - 0:01:45 - 0:02:43
SLOAN: We have Christopher Burton, Senior Technical Advisor at the NSW EPA. He is an experienced environmental scientist with over 30 years of experience in technical advisory, regulation, policy development for the NSW Government. He provides expert scientific and technical advice on umm...sorry lost my point…resource recovery and recycling technologies. He leads the assessment of complex landfill proposals and acts as subject matter expert supporting licensing and reg(ulatory) challenges in the sector. He has extensive experience in contaminated land management previously undertaken technical review of complex site investigation, for PFAS contamination from depenged sites and contributing to state-wide policy. He is a Chartered Chemist, and god we love chemists as we move away from just thinking about physical contamination to chemical, umm ... a Bachelor of Applied Science and Environmental Analysis, a Bachelor of Applied Science in Analytical Chemistry and a Graduate Diploma in Aquaculture. He is well qualified for this conversation today.
TIME - 0:03:52 - 0:04:19
BURTON: Now just to give you a bit of an overview of the landfill guidelines and how they fit into our decision-making process in NSW. So, under the Protection of the Environment and Operations Act, landfills are licensed under that Act and we use the guidelines to inform everything from licence conditions, assessment of planning proposals for new landfills or modifications to landfills, so overall it’s a guiding document and umm ... although it’s not a statutory document.
TIME - 0:49:14 - 0:49:57
SLOAN: Yeah, and someone anonymous has gone with, where is the 300 millimetre depth of leachate measured from, especially if there is a small recess sump? Is it from the bottom of the recess sump, or from the more substantial surrounding floor?
BURTON: It*’s the more substantial surrounding floor, ok ---*
SLOAN: Oh, there you go ---
BURTON: Its primarily across…it*’s the average height across the floor. We don’t want to see, umm you know people penalised for having a nice deep sump, but, um, yeah, in saying* that, it*’s the average across the floor, and we don’*t want to see nice sides that sort of go into this big V shape. Um, but in the end, its 300 mm off the base of the…the liner, and um, yeah, its usually, a nice average point.
TIME - 0:59:39-1:01:41
SLOAN: Um, so I’m going to finish on this question, because this is actually a bit’of a hot- not-fire topic. Because of what we’ve seen happening in other jurisdictions, um, you said earlier the guideline is not statutory or regulatory, so ... and not that were [sic] proposing not to follow it, just saying. Um, but what’s ... what’s the consequence of it not being complied or followed with, or will it be put as a licence condition, for example? So nominally becoming -
BURTON: Yes. So how we manage it is the *condi(tion)... I suppose the general requirements that are in the guidelines, they get transferred to the, um, to the licence. And so that’s how it’*s managed. So, the licence is the statutory instrument. And so, for example, yeah, we were talking about that 300 millimetres above the baseline. That would be a condition of, um…of the licence, um, things like…Because overall, the things like, you know, you must not omit an offensive odour off the, you know, outside the premises. You must not pollute groundwater, you know, and surface waters, which is the section 120. They’re all parts of the POEO Act. And then the licence is built off the POEO Act. So, I guess these guidelines are used to inform that process, um to inform the---
SLOAN: Yeah ---
BURTON: the writing of the licence conditions. So, although we say that they’re not statutory, they are definitely used for us to assess, um, new cells under the POEO Act, new landfills under the POEO Act, so they are the guiding piece of, um, of work that we use in all of our decision-making process, but the statutory instrument itself is the um, the landfill licence.
SLOAN: Yeah, and I guess, um, you know, one of the challenges we’ve had with, say the BEPM in Victoria is the BEPM just gets general reference. Um, in a licence, whereas we need actually the specificity of what parts of the BEPM, for example, and I guess it’s a bit of a shopping list, isn’t it, depending on the site. Um, what ultimately is approved in the design needs to be defaulted, so it needs to be specific enough to be certain. And, uh, give both parties an understanding of what’s required, where and when.
BURTON: Yep.
It also read the affidavit of Hay, a director of Tumut Waste and the operator of the landfill, affirmed on 11 September 2025, and relied upon documents exhibited to his affidavit.
Hay was cross-examined, during the course of which he admitted that:
(a) he became aware in December 2022 or January 2023 that water was in contact with waste in cell 10A and that, therefore, from that time onwards there was a potential for odour generation at the premises from that cell (T44:44-45:01); (b) had he, albeit “with benefit of hindsight”, pumped leachate from cell 10A out of the landfill to the leachate pond at that time, this would have removed the risk of odour generation (T45:03-06); (c) during the charge period dregs and grits from Visy were received at the premises and this waste stream contained the majority of the sulphur-containing materials which could contribute to odour generation (T44:11-17 and 32:45); (d) his practice for measuring leachate levels was guided by advice that he had received 15 years ago from the EPA (T39:05-12); (e) he had seemingly not altered his practice as a landfill operator with respect to leachate management since receiving this advice because he had never had a problem with leachate and odour before and he was of the view that “I still don’t believe that I have a problem” (T39:24-29); (f) he measured the 300 mm pumping requirement from “2.5 metres above the highest point of the sump in the centre” (T41:22-32); (g) he considered that it was not necessary to pump leachate from cell 10A until the leachate level rose to 2.8 m above the highest centre position of the sump, which was a level of 3.8 m above the base of the sump (T42:18-22 and 47:20-22); (h) he considered that the maximum leachate level of 3 m adopted in the concept design was a worse-case scenario that would not be met until 5.8 m of waste was submerged in leachate from the highest point in the sump (T47:36-39); and (i) contrary to the evidence given in his affidavit, he conceded that he had previously had odour problems with leachate (T52:04-38).
3A Purposes of sentencing
The purposes for which a court may impose a sentence on an offender are as follows—
(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the community.
(2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows—
(g) the injury, emotional harm, loss or damage caused by the offence was substantial,
…
(m) the offence involved multiple victims or a series of criminal acts,
…
The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.
(3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows—
(a) the injury, emotional harm, loss or damage caused by the offence was not substantial,
…
(e) the offender does not have any record (or any significant record) of previous convictions,
(f) the offender was a person of good character,
(g) the offender is unlikely to re-offend,
…
(i) the remorse shown by the offender for the offence, but only if—
(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and
(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),
…
(k) a plea of guilty by the offender (as provided by section 22 or Division 1A),
…
(m) assistance by the offender to law enforcement authorities (as provided by section 23),…
241 Matters to be considered in imposing penalty
(1) In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant)—
(a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence,
(b) the practical measures that may be taken to prevent, control, abate or mitigate that harm,
(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,
(d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence,
…
(2) The court may take into consideration other matters that it considers relevant.
The appropriate sentence for Tumut Waste is to be determined by an instinctive synthesis of all the relevant objective and subjective circumstances surrounding the commission of the offences (Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [35]-[39], [50]-[84] and [136]-[139]).
The EPA bears the onus of proving beyond reasonable doubt any aggravating factors for the purpose of sentencing (Gore v The Queen [2010] NSWCCA 330; (2010) 208 A Crim R 353 at [26] and [104] and R v Wickham [2004] NSWCCA 193 at [27]). Tumut Waste bears the onus of proving any factor in mitigation on the balance of probabilities (Wickham at [27] and R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]).
Importantly, the sentence to be imposed on Tumut Waste must be proportionate to the objective seriousness or gravity of the offences that it has committed, and its subjective circumstances (Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 at 490 and Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472).
The nature and purpose of the statutory provisions that have been contravened and their place in the statutory scheme are illustrative of the objective seriousness of the offences (Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [168]-[172]; Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [49] and Chief Executive, Office of Environment & Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 at [59]).
The objects of the POEOA are relevantly:
3 Objects of Act
The objects of this Act are as follows—
(a) to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development,
(b) to provide increased opportunities for public involvement and participation in environment protection,
(c) to ensure that the community has access to relevant and meaningful information about pollution,
(d) to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following—
(i) pollution prevention and cleaner production,
(ii) the reduction to harmless levels of the discharge of substances likely to cause harm to the environment,
(iia) the elimination of harmful wastes,
(iii) the reduction in the use of materials and the re-use, recovery or recycling of materials,
(iv) the making of progressive environmental improvements, including the reduction of pollution at source,
(v) the monitoring and reporting of environmental quality on a regular basis,
(vi) the proper environmental management of chemicals throughout their whole lifecycle,
(e) to rationalise, simplify and strengthen the regulatory framework for environment protection,
(f) to improve the efficiency of administration of the environment protection legislation,
(g) to assist in the achievement of the objectives of the Waste Avoidance and Resource Recovery Act 2001.
The offence against s 129 of the POEOA caused harm to the environment insofar as it emitted impurities into the air and impacted the amenity of multiple residents for a considerable period of time. In so doing, the offence contravened the legislative objects set out in ss 3(a) and (d) of the POEOA, respectively (Environment Protection Authority v Dial-A-Dump (EC) Pty Ltd [2024] NSWLEC 21; (2024) 261 LGERA 103 at [80]).
The offence against s 64(1) of the POEOA undermined the objects of the POEOA which are directed to protecting the environment by establishing a licencing regime that, among other things, manages and controls the discharge of pollutants into the environment and reduces risks to human health (Environment Protection Authority v Bartter Enterprises Pty Ltd (No 4) [2021] NSWLEC 45 at [51]).
The maximum penalty provided under the POEOA for the commission of an offence indicates Parliament’s view of the seriousness of that contravention. It provides a sentencing yardstick to measure the relevant features of the offences for which Tumut Waste is to be sentenced (Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483 at [27]; Camilleri*’*s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 697; and Plath v Rawson at [57]). Tumut Waste’s offending must be examined in this light (Harrison v Perdikaris [2015] NSWLEC 99 at [49]).
At the relevant time, the maximum penalty for the offence against:
(a) s 129(3) of the POEOA was $1,000,000 for a corporation (s 132(a) of the POEOA); and (b) s 64(1) of the POEOA was $1,000,000 for a corporation (s 64(1)(a) of the POEOA).
The offences created by ss 64 and 129 of the POEOA are offences of strict liability. A strict liability offence that is committed intentionally, negligently or recklessly is objectively more serious that one that is committed inadvertently (Environment Protection Authority v Whitehaven Coal Mining Ltd [2019] NSWLEC 27; (2019) 239 LGERA 31 at [201]).
However, because the POEOA contains a similar offence that attracts a higher maximum penalty involving “wilfully or negligently” causing a substance to leak, spill or otherwise escape in a manner that harms or is likely to harm the environment (s 116(1) of the POEOA) which carries a higher maximum penalty, it is not open to the Court to consider as an aggravating factor the state of mind of Tumut Waste during the commission of the offensive odour offence. To do so would infringe the principle expounded in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 (see Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [166]).
The De Simoni principle would similarly be infringed in relation to the leachate management offence if the Court were to take into account any negligence on the part of Tumut Waste as a factor in aggravation when imposing a sentence for the contravention of s 64 of the POEOA (Sydney Water Corporation at [166]).
Nevertheless, the Court is not precluded from taking into account Tumut Waste’s state of mind in determining the objective seriousness of the offences (Secretary, Department of Planning and Environment v Sell & Parker Pty Ltd [2022] NSWLEC 60; (2022) 253 LGERA 1 at [323] and Sydney Water Corporation at [167]).
Tumut Waste submitted that the offences arose from a set of inadvertent circumstances which could be rationally explained. Neither offence, it submitted, was committed intentionally, recklessly or negligently.
In particular, Tumut Waste relied upon the extract of the webinar recording and the comments of Burton to argue that its measurement of the depth of leachate was correct having regard to the Guidelines. This is because Burton opined that measuring the leachate 300 mm from the average height across the sump floor was compliant with the Guidelines.
By contrast, the EPA submitted that, in light of the admissions made by Hay during cross-examination and the limited weight to be attributed to the webinar recording extract, the degree of Hay’s incompetence with respect to leachate management practice, especially his measurement of the leachate in the sump, rendered his conduct either reckless or negligent. It relied upon the following statements made by Hay during his cross-examination (transcript reference omitted):
a. Mr Hay considers himself to be a competent landfill operator;
b. Mr Hay was aware that from the period December 2022 to January 2023:
i. The waste was in contact with water in Cell 10A;
ii. There was a potential for odour generation at the Premises from Cell 10A;
c. Mr Hay accepted that if, from December 2022 to January 2023, he had pumped leachate from cell 10A out of the landfill into the landfill pond, it would have removed the risk of odour generation;
d. Mr Hay ultimately conceded that during the charge period dregs and grits from Visy were received at the Premises, and that these waste streams contained the “majority of the sulphur” (which can contribute to odour generation);
e. Prior to 19 July 2023, Mr Hay had just assumed the rotten egg smell in and around the Premises had originated from Visy;
f. Mr Hay’s practice for measuring leachate levels was guided by advice he stated he received 15 years ago from the EPA;
g. When asked what he had done in the 15 years since receiving that advice, up until the offending, to improve his practices as a landfill operator in relation to leachate management, Mr Hay replied: “Well, I’ve never had a problem up until this time, and I still don’t believe that I had a problem with leachate management”;
h. Mr Hay measured the 300 mm requirement from “2.5 metres above the highest point of the sump in the centre”, which, assuming sump depth of 1 metre, would be 3.5 metres above the base of the sump;
i. Mr Hay considered that it was not necessary to pump leachate from Cell 10A until the leachate level rose to 2.8 metres above the highest centre position of the sump, being a level of 3.8 metres above the base of the sump;
j. Mr Hay considered that the “maximum leachate level” of 3 metres adopted in the Concept Design as a “worst-case scenario” would not be met until 5.8 metres of waste was submerged in leachate from the highest point of the sump;
k. Contrary to the denial in his affidavit at [73], Mr Hay conceded that he had, in fact, had odour problems at his Tumblong side, “with leachate”.
(a) it is an excerpt of a transcript only; (b) the Court does not have a copy of Burton’s curriculum vitae to understand whether he was qualified to make the observation or assess how much weight to be placed on it; (c) Burton appeared (according to Lightbody) to be discussing a proposed draft of the Guidelines, not the actual Guidelines themselves (although it should be acknowledged that the two documents were relevantly similar); and (d) Burton was not available for cross-examination.
In my view, the opinion of Lightbody ought to be accepted. First, the Court endorses the criticisms of the webinar recording extract by the EPA. Second, Lightbody’s evidence is more consistent with the intent and content of the Guidelines. Third, many of the various environmental protection licences referred to by Tumut Waste contained conditions demanding that the leachate had to be at no greater depth than 300mm above the liner floor. Furthermore, that the level at which the 300mm leachate pumping requirement was to be measured varied across landfills and included a stipulation that it be measured from the base of the landfill’s sump.
Having said this, I cannot find beyond reasonable doubt on the evidence before the Court that Tumut Waste’s state of mind at the time it committed the offences was intentional, reckless or negligent.
The evidence plainly does not disclose that Tumut Waste deliberately committed the offences.
Nor was Tumut Waste negligent. In the criminal context, negligence means more than a breach of a duty of care. As was stated in Environment Protection Authority v Orica (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103; (2014) 206 LGERA 239 (at [147]):
147 But as was stated in Gordon Plath of the Department of Environment and Climate Change v Fish [2010] NSWLEC 144; (2010) 179 LGERA 386 at [81], albeit in relation to an offence against s 118 of the National Parks and Wildlife Act 1974 (“the NPWA”), “in the criminal context, negligence means more than a breach of a duty of care”. To amount to criminal negligence (at [81]):
... the degree of carelessness must be such as to show such a disregard for the objects of the statute as to amount to a crime against the state (R v Bateman [1925] All ER Rep 45; (1925) 19 Cr App R 8; see also Andrews v DPP [1937] AC 576 per Lord Atkin at 583; applied in Cittadini v The Queen [2009] NSWCCA 302 at [38]-[40]). For there to be negligence, there must have been an indifference to an obvious risk (R v Taktak (1988) 14 NSWLR 226 at 247, applied in Cittadini).
The conduct of Tumut Waste does not meet this high threshold.
This leaves recklessness. A defendant is reckless if they are put on notice that an act or omission may be unlawful but nevertheless proceeds to engage in it. In Director-General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110 the Court said (at [136]):
136 And an offender’s conduct will be classified as reckless if he or she is put on notice, in the sense that he or she believes or suspects, that an act or omission may be unlawful but nevertheless proceeds to engage in it without making further enquiries (Chief Executive, Office of Environment and Heritage v Rummery [2012] NSWLEC 271; (2012) 192 LGERA 314 at [126] and Chief Executive of the Office of Environment and Heritage, Department of Premier and Cabinet v Turnbull [2014] NSLEC 150 at [141]).
Where the offender is a corporate entity, the relevant state of mind will be that of the directors as the ‘directing mind and will’ of the company (Director-General, Department of Environment and Climate Change v Jack & Bill Issa Pty Ltd (No 5) [2009] NSWLEC 232; (2009) 172 LGERA 225 at [79] and [82]–[83]).
In the present case, I do not accept that Hay was put on notice, insofar as he believed, or even suspected, that to commence pumping leachate to avoid odour generation when the leachate was no less than 2.8 m above the highest point of the sump, or 3.8 m from the lowest point of the sump, was unlawful. On the contrary, his evidence was consistently to the effect that this was the protocol that he had routinely followed as an experienced landfill operator.
In these circumstances I accept Tumut Waste’s submission that the offending in relation to both offences was inadvertent.
The parties agreed that no environmental harm was occasioned by the commission of the leachate management offence.
The EPA submitted, however, that the offensive odour offence caused actual harm to some residents, and moreover, environmental harm by reason of the emission of impurities into the air.
The EPA argued that the offensive odour offence caused actual harm to residents. Furthermore, the high number of complaints that it received indicated that the harm caused by the commission of the offence was substantial. The EPA referred the Court to surveys of local residents, who variously described the nature, strength and intensity of the odour as a “very strong, offensive, rotten egg smell”, “more concentrated, pungent and more offensive” than the background odours in Tumut, and with “a poison, caustic smell”.
The uncontested evidence of the residents was summarised by the EPA as follows (emphasis in original):
105 In relation to the nature, strength and intensity of the odour, local residents described the Odour as follows:
a. Mr Ellison described the Odour as similar to the smell from the Visy Mill, which he described as “sulphur like smell or wet sulphur, rotten gas smell or fart—like smell”, but “on steroids ... it was extremely more concentrated and stronger than the usual Visy smell, much more offensive”. The EPIC notification record of his call on 4 August 2023 records a “[h]orrendous rotten egg odour ... permeating throughout the house”.
b. John Lawson variously described the Odour as “horrendous and shocking” and “absolutely unbearable”, a “rotten egg, rotten potato, hydrogen sulphide smell”, that “took my breath away and I had feelings of nausea ... it was almost making me dry retch and I felt like I needed to throw up”. Mr Lawson knew what H2S smelt like having worked in the timber industry for many years.
c. Susan Quinnell described the Odour as “a very strong, offensive, rotten egg smell”; “a gas smell, rotten potatoes or sour rotten potato smell and/or rotten egg smell” and stated that “[t]he smell is like you can taste it, and once the smell gets into your nose, you cannot get it out of your senses”.
d. Ms Walker described the smell as “putrid” and “rotten egg gas/sulphur based”.
e. Donald Whatman described the Odour as “a very bad rotten egg” smell.
f. Tony Whatman described the Odour as “a poison, caustic smell”. Tony Whatman indicated that the Odour reminded him of “the smells I used to smell at VISY” but that he had never smelt an odour like he experienced since the beginning of the charge period.
g. John Kite described a new odour smelled in mid-2023 which was “similar”, but “much more concentrated, pungent and more offensive” than the “[h]istoric” odour smelled in Tumut.
106 In relation to the physical effects of the Odour, specific examples of its impacts on local residents included:
a. Mr Ellison noted that the Odour “interrupted my normal habits” and “at times, would cause me to suffer from headaches … I would generally suffer from them at least once or twice a week”.
b. Mr Lawson noted that the Odour “took my breath away and I had feelings of nausea ... it was almost making me dry retch and I felt like I needed to throw up”. He noted that the Odour caused him to “physically dry retch” on one occasion.
c. Ms Walker’s eyes felt “irritated and watery” upon smelling the Odour, and after smelling the Odour on one occasion she had a mild headache.
d. Donald Whatman noted that on one occasion, the Odour caused his eyes to water and he suffered from nausea, loss of appetite, headaches, coughing, and a sore throat. He also recalls “sweating and coughing”.
e. Tony Whatman noted that the Odour caused his eyes to be “sore and stinging”, and not long after smelling the Odour he would have a headache.
f. Mr Kite’s evidence is that between June and September 2023, he experienced a number of symptoms which he attributed to the odour, including irritated sinuses, congested throat, “bubble-like” sensations in his upper stomach, heart palpitations (which he attributed to stress), watery eyes, trouble sleeping, and like his general wellbeing was gone.
107 In relation to the duration of the Odour,
a. Mr Ellison said, in a complaint on 3 July 2023, that the Odour was present “almost constantly for the past 30-40 days”. The Odour “progressively got worse in frequency and intensity over time”, and was “most noticeable” from June 2023 to early August 2023.
b. Ms Quinnell gave evidence of having smelt the Odour at home or outside her home on five days between 13 July 2023 and 28 September 2023 inclusive, and noted that it was “starting to be a daily occurrence”.
c. Ms Walker smelt a “putrid” — “rotten egg gas/sulphur based” smell from the start of the charge period in June 2023, and continued to smell the Odour to September 2023. She said the smell was “consistent” to early August, in that “the rotten egg odour could be smelt on most days and nights during the month”.
d. Tony Whatman smelt the Odour “on and off since early June 2023”, and on most mornings after waking up. By late August, he was smelling the odour “nearly daily”.
108 In relation to the effect of the Odour on comfort and repose,
a. Mr Ellison, a teacher at McAuley Catholic College in Tumut, noted that the Odour could be smelt at the school both inside and outside the rooms. Mr Ellison was woken by the odour between 3-4 am “5-10 times in June and early July 2023” and “did not open the windows or doors to my home, as I was trying to prevent the Odour from entering the house”. He noted that the Odour “interrupted my normal habits”.
b. Mr Lawson smelt the Odour at his home and on other occasions, including when driving with his grandchildren. He was concerned of the health effects the Odour may have on him and his grandchildren.
c. Ms Walker was regularly woken up by the smell around 3 or 4 am. She began closing all the windows to lock out the Odour, and felt anxious and stressed for herself and her family.
d. Donald Whatman and his wife used duct tape to put seals around the house in the afternoons and could not use the air conditioning during this time as he had taped it up. They first put the seals from the beginning of the charge period and removed the seals in late September 2023. Mr Whatman also reduced the frequency of, and eventually stopped taking, his morning walks as he did not want to smell the Odour. On several occasions, Mr Whatman left his home at night and drove to Bila Park to sleep in his car or ute in order to avoid the Odour.
e. Mrs Whatman, the wife of Donald Whatman, gave evidence that she had suffered, but not to the same extent as Donald Whatman, and had felt stressed and frustrated watching him suffer. Mrs Whatman and Donald Whatman sealed up the back door of their home at about 4:30 pm every afternoon until 30 September 2023. Mrs Whatman felt like she was living “in jail”. Mrs Whatman and Donald Whatman were also limited to using the inside fireplace, as they had to seal up the air conditioning unit, which was extra physical work at their age. She suffered from tiredness from lack of sleep when the Odour could be smelt inside the house.
f. Tony Whatman’s wife started driving the children to school, due to concerns about his children using the bus stop because of the Odour. Throughout the charge period, he would not let his children play outside the house, as he did not want them to be exposed to the Odour. From July 2023 until the end of the charge period, all their clothes smelt of the Odour, and would need to be dried in the dryer rather than on the clothesline to prevent the Odour from “getting in them”.
It was not a matter of dispute that the symptoms described by the residents of Gilmore and Tumut were consistent with exposure to H2S or other sulphur compounds with a rotten egg gas odour. The physical effects of the odour on local residents included nausea, headaches, dry retching, coughing, sore throats, loss of appetite, irritated sinuses, watery eyes, trouble sleeping and diminished general wellbeing.
Additionally, the EPA submitted that the frequency of the odour was “nearly daily” and that it was “most noticeable” between June to early August 2023.
While Tumut Waste did not cavil with the submission that the offensive odour offence caused actual harm to, and interfered with, the comfort and repose of some of the local residents, it argued that the extent of the harm was more limited than that submitted by the EPA. This was because, first, there were relatively few complaints received by the EPA through the Environment Line. Tumut Waste submitted that the complaints and survey observations made it clear that odours were not uncommon in the Tumut area given the varied and extensive nature of industrial activity in and around that region. Additionally, there was no evidence to determine how many of the 139 individual complainants that were identified made reports about odour emitted from the premises, as opposed to odour emissions from other sources. Tumut Waste submitted that the Court could not be satisfied to the requisite standard that the complaints identified by the EPA concerned odour emitted exclusively from the premises.
Second, the duration of the odour was more limited than that particularised in the summons. While Tumut Waste accepted that the offensive odour was emitted from the premises intermittently from 26 June 2023, as well as during the second week of July 2023 continuing into August and September 2023, no odour was detected when EPA officers inspected the premises on 27 June and 3 July 2023.
Third, while the H2S concentrations detected by the majority of the Acrulog monitors were above the odour threshold of between 2000 to 5000 ppb, it was agreed that these concentrations would not typically be expected to cause adverse effects.
While the Court finds that actual harm was caused to the residents as described above by the odour emanating from the premises over a moderately sustained period of time, it takes into account the submissions made by Tumut Waste. The harm was, moreover, not permanent or long-term.
Having regard to the evidence of the residents, there can be no doubt that the harm caused by the commission of the offensive odour offence was substantial and would, as the EPA submitted, otherwise amount to an aggravating factor pursuant to s 21A(2)(g) of the CSPA.
The EPA submitted that there were two aggravating factors present in the commission of the offensive odour offence: first, the injury, emotional harm, loss or damage caused by it was substantial; and second, it involved multiple victims.
But s 21A(2) of the CSPA prevents the Court from having regard to an aggravating factor where the factor is also an element of the offence. The prohibition is directed at avoiding the risk of double counting (Environment Protection Authority v Hanna [2018] NSWLEC 80; (2018) 235 LGERA 114 at [157]).
Having regard to the definition of “offensive odour” in the POEOA, Tumut Waste argued that causing harm to persons outside the premises, or that interfering unreasonably with the comfort or repose of a person who is outside the premises from which the odour is emitted, forms part of the elements of the offence. Accordingly, the Court cannot take this aspect of the harm into account as an aggravating factor because it can be anticipated from the commission of the offence, and forms part of the objective element or underlying policy of the offence (Elyard v The Queen [2006] NSWCA 43; (2006) 45 MVR 402 at [10]-[12] per Basten JA and at [40]-[44] per Howie J).
But Tumut Waste’s submission, taken to its logical conclusion, would result in the Court never being able to take harm into account as an aggravating factor no matter how serious that harm was in respect of a contravention of s 129 of the POEOA. I do not understand this to be the proper construction of s 21A(2) of the CSPA.
In the present case, I find that the sustained nature of the harmful odour, its manifest physical effects, and its prolonged interference with the comfort and repose of a great number of persons outside the premises from which it was emitted are, in my view, matters that the Court can take into account as aggravating factors pursuant to s 21A(2)(g) of the CSPA.
The EPA submitted that the offensive odour offence caused actual environmental harm occasioned by the emission of impurities into the air. Tumut Waste agreed, but noted that H2S is a naturally occurring substance.
I accept the submission of the parties, noting again that the discharge did not cause any long term or permanent harm.
It was agreed that LFG and odour mitigation measures were not enacted at the earliest opportunity. As the statement of agreed facts makes clear, methodical LFG monitoring and leachate pumping from cell 10A was only undertaken approximately a month after the odour permeated the area surrounding the premises.
The EPA submitted that the measures that Tumut Waste could have taken to prevent the harm associated with the odour were:
(a) monitoring LFG levels; (b) pumping leachate to ensure that it did not inappropriately accumulate above the basal liner in cell 10A; and (c) the installation of an LFG collection and combustion system.
(a) the Guidelines required LFG monitoring to be conducted over areas of landfill surface with intermediate or final cover/capping, which cells 9 and 10A did not have; (b) it was not until 8 August 2023 that the licence was varied to include conditions relating to LFG monitoring on the premises; and (c) the EIS estimated that LFG emissions would not reach a level necessitating the installation of such a system until 2026.
(a) Hay and employees of Tumut Waste covered cell 10A with 42,000 tonnes of clay to a depth of approximately 1.2 m by 26 July 2023, which was seven days after the EPA had advised Tumut Waste of the source of the odour. Cracks that had developed in the clay were reinforced with sand in August 2023; (b) Tumut Waste ceased accepting waste into cell 10A on 22 July 2023; (c) Tumut Waste contacted NorthStar on 20 July 2023 to conduct site inspections and a Field Ambient Odour Assessment. NorthStar advised on the nature and extent of odour. It later recommended the installation of an LFG treatment system in cell 10A; (d) LGI was contacted to provide advice and implement a temporary LFG treatment system, which became operational on 29 September 2023. On that date, a three month trial began involving external monitoring of the system, weekly site attendance and engaging in “fielding tuning”. Following the cessation of the trial in December 2023, LGI installed a permanent LFG treatment system at the premises; and (e) Tumut Waste installed a leachate level control system to ensure that leachate levels in cell 10A do not rise 300 mm above the lowest point in the cell floor, as recommended by the Guidelines.
Hay estimated that as at September 2025, Tumut Waste had expended over $1.85 million to address the odour and leachate issues at the premises.
Having noted this, it was not suggested by Tumut Waste that any of these measures could not have been implemented by it earlier.
The Court, therefore, takes into account the practical measures that Tumut Waste could have, and in fact did, undertake to prevent, control, abate and mitigate the harm caused by the commission of the offence.
The parties agreed that statutory consideration of the reasonable foreseeability of the harm caused, or likely to be caused, to the environment was not relevant to the leachate management offence.
In respect of the offensive odour offence, Hay deposed to not foreseeing that cell 10A would generate odour because neither he nor the previous owner of the premises had similar issues with the other nine active landfill cells on the premises.
By contrast, the EPA submitted that, irrespective of his subjective foresight, a reasonable person standing in the shoes of Hay would have foreseen the harm caused, or likely to be caused, to the environment by the commission of the offensive odour offence.
I accept the submission of the EPA. In doing so, I note Hay’s concession in cross-examination that he had previously experienced odour problems with leachate at his Tumblong site (T52:25-38), and moreover, that from the period December 2022 to January 2023, that he was aware that waste was in contact with water in cell 10A and that there was the potential for odour generation at the premises as a consequence (T44:44-45:01).
The offensive odour offence was caused by a combination of factors, including increased water entry into the waste due in part to significant rainfall at the premises, which generated leachate.
The EPA submitted, and Tumut Waste accepted, that it was incumbent on Tumut Waste as a company operating in the waste industry to anticipate the possibility of an adverse weather event, and to implement measures to mitigate the risks that such an event posed to its operation. Tumut Waste also accepted that it had control over the fact that LFG and odour mitigation measures were not considered earlier by it.
Nevertheless, Tumut Waste argued that the volume of water received in Tumut during the rainfall event was a significant contextual matter in considering its culpability. The town of Tumut received 1,108.5 mm of rain during the period from 23 August 2022 to 19 July 2023. Further, in October 2022 Tumut received 169.5 mm of rain. The high volume and continuous nature of the rainfall at the premises increased the moisture content in the waste and the generation of leachate in cell 10A, especially during the early stage of filling cell 10A, when the ability to prevent rainwater from entering the cell was more limited.
Tumut Waste acknowledged, however, that it should have planned for the possibility of an extreme weather event and implemented measures to mitigate the risks that it presented.
While the Court takes into account the rainfall event as a factor contributing to the creation of the malodorous LFG emissions, the fact remains that at all relevant times Tumut Waste had control over the commission of the offences.
(a) offensive odour offence is moderately objectively serious; and (b) leachate management offence is in the low range of objective seriousness.
An offence committed for financial gain or a deliberate commercial purpose is objectively more serious that than one that is not the result of a pecuniary motivation (Sydney Water Corporation at [271]).
There was no evidence whatsoever that the commission of the offences was motivated by commercial considerations.
86 In the 2024-2025 financial year, Tumut Waste (via its business name “Bellette’s Bulk Bins”) sponsored the following organisations in the Tumut area:
(a) Snowy Valleys School, a special education school in Tumut;
(b) Can Assist, cancer assistance for Country NSW;
(c) Country Hope, a provider of emotional and financial support to country families who have a child diagnosed with cancer or life-threatening illness;
(d) Riding for the Disabled, a provider of equine assisted activities for people with disabilities;
(e) Tumut Regional Family Services;
(f) Battle on the Bidgee, a three-day stockman’s challenge held in Gundagai;
(g) Gundagai Horse Trials, an equestrian event held in Gundagai;
(h) Tumut Reined Cow Horse Show;
(i) Tumut Girl Guides;
(j) Gundagai Adelong Racing Club;
(k) Off Grid Fitness, which is a local gym that holds an annual competition called the “Off Grid Throwdown”;
(l) “Tumut Takes 2”, a local fundraiser;
(m) Wagga Wagga Show Society;
(n) Gundagai Truck Museum;
(o) Tumut Bulls Rugby Union Club;
(p) Group 9 Rugby League;
(q) Brungle Connections Rugby League Team;
(r) Gundagai-Adelong Junior Rugby League Club;
(s) Tumut Minor Rugby League Club;
(t) Gundagai District Rugby League Club; and
(u) Tumut Rugby League Club.
87 The above sponsorships and donations amounted to $95,875.00 in the 2024-2025 financial year.
88 Both the other director of Tumut Wate, David Tout, and I are active members of the local community. In recent times, we have completed a number of community projects and roles on a voluntary basis:
(a) since 2013, we have acted as the President and Secretary respectively, of the Gundagai District Rugby League Football Club;
(b) we both, at our personal cost, maintain and supply equipment for the Gundagai District Rugby League Football Club gymnasium;
(c) I am currently the Vice-President of Group 9 Rugby League;
(d) since 2016, David Tout has been on the management committee of the Gundagai Council in Exile, an incorporated association which was formed to instigate the demerger of the Cootamundra-Gundagai Regional Council;
(e) in recent times, David Tout has volunteered his time, expertise and plant and equipment to assist with:
(i) the installation of large sandstone blocks and various concreting work at the South Gundagai Public School;
(ii) consulting work for various projects associated with the Gundagai-Adelong Race Club; and
(iii) the installation of the first portion of concrete footpaths at Uralba Hostel for aged cared in Gundagai.
89 Since taking over the Premises, Tumut Waste has planted a number of trees onsite and spent considerable funds on lining drains with rocks to prevent erosion.
Remorse shown by an offender is a mitigating factor only if the offender has provided evidence that they have accepted responsibility for their actions and they have acknowledged any injury, loss or damage caused by their conduct (s 21A(3)(i) of the CSPA).
In his affidavit, Hay expressed remorse for the impact that the offensive odour had on the residents of suburbs near the premises in these terms:
78 I am very sorry for the impact the odour had on some members of the Gilmore and Tumut communities, who are part of my own community. I particularly regret the suffering of some of the nearby residents due to the odour. When the odour was affecting a couple who lived nearby, who were sensitive to the odour, I offered to pay for them to spend time away at Tumut Waste’s expense. In August and September 2023, Tumut Waste paid for accommodation and fuel expenses for those residents.
79 Being a locally owned and family operated business, the odour had a debilitating effect on some of Tumut Waste’s employees, who were worried about their job security when the odour was at its peak and Tumut Waste was required to accept a reduced waste intake at the Premises. The sense of responsibility I felt for my employees, some of whom had worked for me for over 10 years, caused me considerable anxiety.
80 The impact of the odour on people in the Tumut and Gilmore communities also had a profound effect on me, as well as my family members who live and work in the Tumut region. I was terribly embarrassed by the odour, as was my family. For some time, I was hesitant to show my presence in the Tumut community. It was a terrible time in my life.
81 I am committed to ensuring that Tumut Waste complies with all of its environmental obligations.
82 For all of these reasons, I am committed to ensuring that the offences are never repeated.
Hay further acknowledged that, had he conducted LFG monitoring and removed leachate from cell 10A earlier, both of which were odour mitigation strategies open to Tumut Waste at the time, the harm could have been avoided.
I find that Hay, in his capacity as director of Tumut Waste, has clearly shown remorse for the impact that the odour had on the surrounding community. His contrition is amplified by the steps that Tumut Waste subsequently undertook to prevent recurrence of the odour, namely, the expeditious coverage of cell 10A with clay and the installation of the trial system.
A plea of guilty entered at the earliest reasonable opportunity has utilitarian value to the criminal justice system and entitles an offender to a maximum discount of 25% (R v Thomson [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [152]-[155]). What is regarded as an early plea will vary in the circumstances of the case (Thomson at [160(iii)]).
Tumut Waste pleaded guilty to the offensive odour offence and the leachate management offence on 30 May 2025, the pleas coinciding with the filing of the further amended summons by the EPA.
The EPA argued that the pleas were not entered at the earliest reasonable opportunity given that, although both pleas were entered before a contested hearing, they were entered approximately 10 months after the initial filing of the summonses.
In response, Tumut Waste argued that, when viewed in light of a lengthy procedural history that “cannot be ignored”, it had entered pleas of guilty at the first reasonable opportunity (citing Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 4 at [204]). It summarised this history and submitted that the matter was “significantly delayed” due to the conduct of the EPA, for which Tumut Waste ought not be penalised (extensive procedural details were provided in its written submissions and are not repeated here for the sake of brevity):
In short, this matter was significantly delayed due to the conduct of the prosecutor, for which Tumut Waste should not be penalised. The prosecutor filed 32 affidavits and two expert reports after the commencement of the proceedings in contravention of r 5.3(2) of the Land and Environment Court Rules 2007 (NSW) and paragraph 12 of this Court’s Practice Note for Class 5 proceedings, which required the summonses to be accompanied by the affidavits intended to be relied on by the prosecutor as establishing prima facie proof of the offences charged. Most significantly, the prosecutor’s two expert reports — which were the foundation of three of the four charges — and 23 affidavits were filed on 6 December 2024. This was four and a half months after the proceedings were commenced. It was not until 11 April 2025, almost seven months after Tumut Waste first sought further and better particulars, that the prosecutor provided proper particulars of the s 64 charge. The parties subsequently engaged in negotiations about the charges for a short period. Tumut Waste entered its pleas of guilty on 30 May 2025, the same day the prosecutor filed the Further Amended Summons, which narrowed the s 64 charge for the second time, and advised the Court it would withdraw two of the four summonses.
According to Tumut Waste, the utilitarian value of the pleas, and whether it was possible for them to have been entered earlier, cannot only be determined by looking at the date when the summonses were filed. Rather the enquiry must be directed to when it was reasonable for the pleas to have been entered (Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 at [20]-[25]). When regard is had to the procedural history of the proceedings, it may be concluded that Tumut Waste entered pleas of guilty at the first reasonable opportunity and ought to be afforded the full 25% discount.
It further argued that its agreement to an extensive statement of agreed facts was also relevant to the utilitarian value of its pleas given that the agreement resulted in the EPA requiring only one witness for cross-examination during the sentence hearing.
I do not consider that the agreement to the statement of agreed facts is relevant to the utilitarian value of Tumut Waste’s guilty pleas. The timing of an entry of a plea of guilty and the assistance provided by an offender to a prosecuting authority give rise to different considerations, both of which the Court must take into account (as to the latter, see further below).
In my opinion, I do not consider that the delay alleged by Tumut Waste precluded it from entering its pleas of guilty earlier. That is, even assuming that there was delay by the EPA in finalising its evidence, the pleas were not entered at the first reasonable opportunity. The EPA’s expert evidence and statement of facts were filed on 6 December 2024, whereas the pleas were not entered for a further six months. By 6 December 2024 Tumut Waste ought to have been in a position to enter a plea to the elements of each offence. The further amended summons merely narrowed the charge period and withdrew some of the allegations against Tumut Waste.
Nevertheless, there can be no doubt that the entry of the pleas, when they eventuated, resulted in a considerable saving of resources by avoiding a costly and potentially lengthy hearing on liability.
On the basis of the matters discussed above, I find that Tumut Waste is entitled to a 20% discount for the utilitarian value of its pleas.
The Court is empowered to take into account any other objective or subjective factor that affects the relative seriousness of the offence (s 21A(1)(c) of the CSPA).
Tumut Waste submitted that it pleaded guilty to the leachate management offence notwithstanding that:
(a) the leachate extraction and level control criteria contained in s 1.9 of the Guidelines were ambiguous; (b) the licence contained no express requirement that Tumut Waste keep leachate levels below 300 mm, unlike other environment protection licences issued to other landfill operators who were permitted to accept non-putrescible general solid waste; and (c) the EPA did not direct Tumut Waste to keep leachate levels 300 mm above the basal liner until 9 August 2023 (by way of the prevention notice), which was a week after the conclusion of the charge period.
Tumut Waste, therefore, argued that its decision to enter a plea of guilty to the leachate management offence demonstrated its willingness to facilitate the course of justice, a matter that should be taken into account as a factor in mitigation pursuant to this provision.
As the EPA submitted in reply, however, the opinion of Lightbody – which was not in dispute – was that a competent operator of a landfill such as the premises would have undertaken sufficient monitoring to identify when leachate levels exceeded 300 mm at the cell 10A sump and would have then commenced the transfer of leachate to the leachate pond. Tumut Waste failed to do so, thereby breaching its licence.
Hay’s evidence that, in his opinion, the starting level for leachate pumping was 2.8 m above the highest point of the sump or 3.8 m from the lowest point of the sump was not supported by any other cogent evidence and was inconsistent with the concept design in the EIS and the Guidelines.
Rather, I accept Lightbody’s evidence that the measurement of the leachate pumping commencement level should be taken from the base of the sump. This means that the exceedance was 14 times over the 300 mm level.
Tumut Waste’s refusal to accept this proposition, necessitating the provision of expert evidence by the EPA and considerable debate at the sentence hearing, does not demonstrate a willingness to facilitate the course of justice.
(a) provided the EPA with access to the premises for inspections and field odour surveys, including before and after business hours; (b) met with the EPA officers at the premises, and on occasions at their office when requested to do so, often at short notice; and (c) voluntarily provided the EPA with regular updates about the works being undertaken at the premises to manage and mitigate odour.
General deterrence is essential “to ensure that the penalty imposed acts to deter those who might engage in similar activities from committing like offences” (Mouawad v The Hills Shire Council [2013] NSWLEC 165; (2013) 199 LGERA 28 at [188]).
Both parties accepted that general deterrence is warranted. The Court agrees. There must be an element of general deterrence embedded within the determination of the appropriate sentence to be imposed on Tumut Waste to ensure that other operators of landfills conduct their licenced activities in a competent manner and in a way that does not harm the environment.
Specific deterrence can catalyse rehabilitation so that an offender takes the requisite steps to prevent further offending (Environment Protection Authority v Ravensworth Operations Pty Ltd [2012] NSWLEC 222 at [48]).
The EPA submitted that despite the steps taken by Tumut Waste to prevent the recurrence of the emission of the odour, including the installation of the LFG collection and combustion system, there was a need for specific deterrence to reinforce to Tumut Waste its overriding responsibility of conducting itself in accordance with the POEOA and its licence conditions.
In response, Tumut Waste submitted that the need for specific deterrence had been significantly diminished because of its changed operating procedures. For example, Hay deposed to Tumut Waste now conducting:
(a) daily monitoring of H2S using hand-held monitors; (b) daily walkovers of the premises to check for any odour and the conditions of cell 10A’s landfill surface, the active tipping face, and the permanent LFG treatment system; and (c) monitoring of leachate generated within cell 10A to understand leachate generation rates, particularly after heavy rainfall.
Tumut Waste further submitted that it had already remedied the deficiencies in its infrastructure that caused the emission of offensive odour from the premises, namely, by the installation of the LFG treatment system. It relied upon Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 (at [56]) to argue that, in the case of small corporations such as Tumut Waste, changes in management practice can significantly diminish the need for individual deterrence.
In light of the remedial measures implemented by Tumut Waste, and given that it has no previous regulatory infractions that would establish a pattern of disobedience, I agree that specific deterrence has only a limited role to play in the sentencing for its commission of these offences.
The task of a sentencing court is to seek even-handedness in the imposition of a sentence (R v Oliver (1980) 7 A Crim R 174 at 177 and R v Visconti [1982] 2 NSWLR 104 at 106). However, care must be taken in achieving consistency. There is difficulty comparing the penalty in one case with that in another because of the wide divergence of facts and circumstances in each case (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 365). The sentence imposed in a single case does not demonstrate the limits of a sentencing court’s discretion (Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at [35] and Environment Protection Authority v Barnes at [79]).
The EPA helpfully furnished the Court with the following summaries of comparable cases, the content of which was not cavilled with:
133 Environment Protection Authority v Dial-A-Dump (EC) Pty Ltd [2024] NSWLEC 21 involved the emission of offensive odour associated with LFG from Bingo Eastern Creek Landfill (at [2]). The offender had pleaded guilty to a single offence under s 129(1) of the POEO Act (at [1]).
134 Over the course of the charge period (26 March to 16 June 2021), the offender caused the emission of offensive odour associated with LFG from Bingo Eastern Creek Landfill in NSW (at [1]-[2]). The odour was detected regularly during the charge period by residents in the nearby suburb of Minchinbury, and intermittently during the charge period by residents in the nearby suburbs of Eastern Creek and Horsley Park ([2]). The landfill was located approximately 400 m south of the closest residential properties in Minchinbury and approximately 1.2 km east of residential properties in Erskine Park ([7]).
135 The offender accepted that the emission of the offensive odour was caused by its failure to have an adequate LFG extraction and treatment system in place (at [81]).
136 It was an agreed fact that the odour emitted from the premises interfered unreasonably with the comfort and repose of local residents (at [91]). The Court found that the commission of the offence caused actual environmental harm by way of the emission of impurities into the air and harm to human health in addition to consequential harm to the statutory scheme (at [90]). The actual environmental harm so caused was characterised as substantial (at [180]).
137 The Court was satisfied that the emission of offensive odours was foreseeable (at [120]), and involved multiple victims (at [129]). Having considered the offender’s submissions on an extreme rainfall event, the Court found that it was incumbent on the offender “to anticipate and plan for the possibility of an extreme weather event, especially where the frequency of such events has increased as a result of climate change … and to implement measures to mitigate the risks such an event posed to its operation” (at [126]).
138 The offender entered its guilty plea approximately one year after the proceedings were commenced, on the same day that the Prosecutor filed an amended summons (at [133]). A 20% discount was granted for the utilitarian value of that plea (at [135]). The offender’s assistance to authorities was characterised as going beyond mere compliance with its statutory duties (at [138]). The offender was found to have accepted responsibility for its actions and acknowledged the injury, loss and damage caused (at [142]). It had two prior convictions, which were not found to manifest a pattern of disobedience with the law (at [143]-[145]). The Court found the likelihood of reoffending to be low (at [153]).
139 The Court found the offence to be in the upper mid-range of objective seriousness (at [130]). A fine of $350,000 was imposed, which was reduced to $280,000 on account of the discount for the utilitarian value of the early plea (at [132]-[135]; [168]-[169]).
140 Environment Protection Authority v CPB Contractors Pty Limited [2019] NSWLEC 134 involved the emission of an offensive odour, associated with leachate, from the new M5 St Peters Interchange (part of the WestConnex motorway scheme) at St Peters in Sydney (at [2]). The interchange occupied an area that had formerly been used for waste landfill (at [2]). At the time of the offences, CPB Contractors Pty Ltd (CBP) was the occupier of the interchange premises and held an EPL permitting it to undertake road construction (at [2], [12]). The offender pleaded guilty to four offences under s 129 of the POEO Act.
141 The offender had pleaded guilty to four offences against s 129(1) of the POEO Act (at [1]). The duration of each offence was as follows: 8:00 hours (Charge 1); 5:23 hours (Charge 2); 9:30 hours (Charge 3); 7:15 hours (Charge 4) (at [12]). In total, the EPA received 44 complaints in relation to odour across the four dates on which there were charges (at [12]).
142 It was agreed between the parties that the odour emitted caused actual harm to EPA officers, to persons at nearby businesses and to residents in the vicinity of the premises, and the potential for harm, and was foreseeable and preventable (at [12]).
143 The offender entered its guilty plea some five and a half months after the date of the summons (at [64]). The offender had no prior convictions for environmental offences, had made a number of self-reports in relation to odour issues, and had furnished written reports to the EPA upon request (at [12]; [67]; [73]).
144 The Court considered the environmental harm caused including to human health to be serious and considered the offences to fall at the upper end of the mid-tier range (at [61]). The Court noted that “[n]one of the offences were transient and all affected people living nearby, several severely in terms of health impacts, including within their homes” (at [61]). Fines of $175,000 (discounted from $250,000) for Charge 3; $80,000 for Charge 1; $20,000 for Charge 2; and $20,000 for Charge 4 were ordered (at [87]-[90]).
145 Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289 involved a failure to monitor leachate at a landfill site as required by a condition of the offender’s environment protection licence. The offender pleaded guilty to a single charge under s 64(1) of the POEO Act (at [1]). At the time of the commission of the offence, the maximum penalty for a contravention of s 64(1) by a corporation was $250,000 (the maximum penalty was increased to $1,000,000 for offences committed after 1 May 2006, a point noted by the Court) (at [71]).
146 The offender operated a solid waste landfill in Ballina. Condition M6.2 of its environment protection licence provided that it was required to monitor the volume if leachate reinjected into waste filled areas; the volume of leachate irrigated onto waste filled areas; and the volume of leachate discharged off site daily (at [2]). The charge was particularised as a failure to so monitor the leachate during the charge period (being 31 January 2002 to 1 May 2005) (at [1], [3]).
147 The Court noted that the monitoring condition was an important part of the environment protection licence and the licensing system established under the Act (at [72]). It found the seriousness of the offence to be evident in the statutory scheme and s 64 of the Act, and in the magnitude of the penalty for breach of the statutory provision (at [81]). The Court noted that the systemic nature of the failure to comply with condition M6.2, the “considerable longevity of the period of non-compliance”, and “the fact that the defendant’s failure undermined the integrity and effectiveness of the licence” (at [87]). There was no evidence that the failure to monitor in accordance with the condition occasioned environmental harm (at [100]).
148 The offender had no prior convictions for environmental offences (at [111]). It was afforded the full utilitarian value of an early plea of guilty (25%) (at [114]). Genuine contrition and remorse was expressed by the responsible manager, however, this was lessened by the failure to notify the EPA of the condition breach at any point until September 2004 (at [115]-[116]). After September 2004, the offender took effective steps to address the systemic and other failures that had led to the commission of the offence (at [120]).
149 The Court found the offence to be at the lower end of the middle range, and on the objective circumstances to warrant a penalty of about $55,000. Taking into account the subjective circumstances and the utilitarian value of an early plea of guilty, a fine of $35,000 was ordered (at [128]).
The totality principle is a relevant consideration when determining an aggregate penalty in sentencing for multiple offences as in the present proceedings (Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 62-63; Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [40]; Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346 at [18]; and Jindalee Road Wines Pty Ltd v Natural Resources Access Regulator; Littore v Natural Resources Access Regulator [2025] NSWCCA 215 at [156]-[172]). The task of the Court is to ensure that the overall sentence is neither too harsh nor too lenient.
Care must nevertheless be taken “to ensure that any adjustment of individual sentences does not cause the aggregate sentence not to reflect the total criminality of the offender’s conduct or the sentence for any individual offence to become disproportionate to the objective gravity of that offence” (Rawson at [222]). The application of the totality principle must not undermine public confidence in the administration of justice by any perception that “what is in effect being offered is some kind of discount for multiple offending” (R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [18]).
Both parties agreed that the two offences are connected insofar as the increased leachate in cell 10A created anaerobic conditions that produced the H2S at the premises and the concomitant odour. This warrants an adjustment of the overall sentence so that it is just and appropriate (Mill v The Queen at [8]).
(a) in respect of the offensive odour offense, a fine of $300,000; and (b) in respect of the leachate management offence, a fine of $80,000.
(a) in respect of the offensive odour offense, a fine of $240,000; and (b) in respect of the leachate management offence, a fine of $64,000.
After the application of the totality principle, the penalty for the leachate management offence is further adjusted to $30,000.
The total monetary penalty to be imposed is therefore $270,000.
The EPA sought an order for a moiety under s 122(2) of the Fines Act that Tumut Waste pay half of any monetary penalty ordered against it to the EPA.
Tumut Waste opposed the making of such an order on the basis that it would be more appropriately paid to an organisation for the purpose of a project for the restoration or enhancement of the environment under s 250(1)(e) of the POEOA. In particular, it would be most appropriate for it to be paid to an organisation in the Tumut area for the purpose of odour mitigation.
In this context, the Council had advised Tumut Waste that it was seeking to construct concrete aprons and industrial cover for the receival, sorting and decontamination areas at its Food Organics Garden Organics Waste Management Facility at the Tumut Resource Recovery Centre in order to improve odour outcomes for the community.
While there is no doubt that this is a laudable project that would have a direct environmental benefit to the Tumut community, the absence of detail in respect of the proposal renders the suggestion unattractive to the Court.
In the alternative, Tumut Waste submitted that any proposed moiety would be more appropriately directed to the Environmental Trust established under the Environmental Trust Act 1998, again pursuant to s 250(1)(e) of the POEOA.
In my opinion, the alternative suggestion by Tumut Waste ought to be accepted. Having regard to the objects of the Environmental Trust Act contained in s 7 of that Act, the payment of part of the monetary penalty to the Environmental Trust is to be preferred. The EPA have not explained why, in addition to the payment of their costs as agreed, an order under s 122(2) of the Fines Act is warranted.
The EPA sought a publication order and a notification order publicising the outcome of the sentencing proceedings to local residents by way of letterbox drop pursuant to ss 250(1)(a) and 250(1)(b) of the POEOA, respectively.
In Environment Protection Authority v Crown in the Right of New South Wales [2019] NSWLEC 178, Duggan J usefully set out the principles to be derived from the authorities in determining whether or not to make a publication order (at [84]), which I respectfully adopt and apply without repetition.
Tumut Waste did not cavil with the making of a publication order in the terms proposed by the EPA.
Tumut Waste also did not oppose the making of a notification order, but submitted that the geographical reach initially proposed by the EPA would extend well beyond the community affected by the odour and was, therefore, unwarranted and disproportionate to the offending.
After some discussion between the parties, the EPA agreed, and a 5 km radius of properties (including, but not limited to, residential and commercial properties) from the premises affected by the odour was suggested as an alternative. This was consistent with the furthest distance away from the premises where the odour was detected, namely, at Visy, which was located approximately 5.36 km from the premises, and on Wynyard Street, Tumut, approximately 4.29 km from the premises.
In my opinion, a 5 km geographical limit is reasonable in all the circumstances. While it is possible that, even when restricted to 5 km, the notification order may capture properties beyond the areas where the odour was detected, the streets nominated in annexure ‘D’ are the streets in which persons who made complaints about odour through the Environment Line reside. It is, therefore, appropriate that these complainants be notified of the outcome of the prosecutions. To do so serves the objects of the POEOA, particularly those contained in s 3(b) and (c) of that Act.
In proceedings 2024/263426 (the offensive odour offence)
(1) Tumut Waste Pty Ltd is convicted of the offence against s 129(3) of the Protection of the Environment Operations Act 1997;
(2) Tumut Waste Pty Ltd is fined the sum of $120,000;
(3) pursuant to s 250(1)(e) of the Protection of the Environment Operations Act 1997, Tumut Waste is to pay $120,000 to the Environmental Trust established under the Environmental Trust Act 1998 for general environmental purposes;
In proceedings 2024/263429 (the leachate management offence)
(4) Tumut Waste Pty Ltd is convicted of the offence against s 64(1) of the Protection of the Environment Operations Act 1997;
(5) Tumut Waste Pty Ltd is fined the sum of $15,000;
(6) pursuant to s 250(1)(e) of the Protection of the Environment Operations Act 1997, Tumut Waste is to pay $15,000 to the Environmental Trust established under the Environmental Trust Act 1998 for general environmental purposes;
In proceedings 2024/263426 and 2024/263429
(7) pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, Tumut Waste Pty Ltd is, at its expense, to:
(a) within 42 days of the date of these orders, cause a notice at a minimum size of 10 cm x 18 cm to be published within the first 12 pages of The Sydney Morning Herald, with the text of such notice to be as set out in annexure ‘B’ of these orders; and
(b) within 42 days of the date of these orders, cause a notice at a minimum size of 10 cm x 18 cm to be published within the first 12 pages of the Wagga Wagga The Daily Advertiser with the text of such notice to be as set out in annexure ‘B’ of these orders;
(8) within 7 days of the date of publication of each of the notices referred to in order (7), Tumut Waste Pty Ltd is to provide the Environment Protection Authority with a complete copy of the notices published pursuant to that order;
(9) pursuant to s 250(1)(b) of the Protection of the Environment Operations Act 1997, Tumut Waste Pty Ltd is, at its expense and within 14 days of the date of this order, to cause a notice in the form of annexure ‘C’, at a minimum size of A4, to be placed in the mailboxes of all properties within 5 km of the premises (including but not limited to residential and commercial properties) on the streets listed in annexure ‘D’;
(10) within 7 days of delivering the notice pursuant to order (9), Tumut Waste Pty Ltd must provide the Environment Protection Authority with a complete copy of the final notice as delivered to the streets specified in annexure ‘D’; and
(11) pursuant to s 257B of the Criminal Procedure Act 1986, Tumut Waste Pty Ltd is to pay the professional costs of the Environment Protection Authority in the sum of $250,000, as agreed pursuant to s 257G of that Act.
Annexure A: State****ment of A****greed Facts
Annexure 'A' (2.03 MB, pdf)
Annexure B**: Terms of** M****edia P****ublication Notice
| Tumut Waste Pty Ltd is convicted and fined for the emission of offensive odour from Bellettes Landfill Gilmore, impacting community members Tumut Waste Pty Ltd was prosecuted by the NSW Environment Protection Authority (“EPA”) for causing the emission of offensive odour from Bellettes Landfill Gilmore (“the Landfill”) and for breaching a condition of its Environment Protection Licence (“EPL”). Between about 6 September 2022 and 2 August 2023, Tumut Waste Pty Ltd failed to carry out licensed activities at the Landfill competently by failing to appropriately manage leachate generated within cell 10A of the Landfill. Between about 26 June 2023 and 29 September 2023, this caused the emission of offensive odour from the Landfill (“the odour offence”). The offensive odour was caused by a combination of factors. These included increased water entry into the waste due, in part, to significant rainfall which generated leachate, created anaerobic conditions at the Landfill that were conducive to the production of hydrogen sulphide, and reduced the time in which significant landfill gas (“LFG”) was formed. Between 24 August 2022 to at least 2 August 2023, leachate accumulated in cell 10A. No leachate was removed from cell 10A from when it became operational until 2 August 2023. During the offence period for the odour offence, Tumut Waste Pty Ltd did not have in place adequate controls, such as a flare, to collect LFG and treat it to remove odorous compounds. Because LFG monitoring was not undertaken until 27 July 2023 and because leachate pumping did not occur from cell 10A until 2 August 2023, LFG and odour mitigation actions were not considered at the earliest opportunity. Tumut Waste Pty Ltd completed installation of a trial flare system on 29 September 2023. It subsequently installed a permanent LFG collection and combustion system. On 26 February 2026 the Land and Environment Court of New South Wales (“the Court”) convicted Tumut Waste Pty Ltd of causing the emission of the offensive odour and for breaching a condition of its EPL with respect to its management of leachate at the Landfill. The Court fined Tumut Waste Pty Ltd a total amount of $270,000 and ordered that it pay the EPA’s costs in the agreed sum of $250,000. It also ordered that Tumut Waste Pty Ltd pay for this notice to be published and for a notice to be placed in the mailboxes of all properties on the streets affected by the commission of the odour offence within 5 km of the Landfill. The Court’s judgment may be accessed at [insert URL for judgment on Caselaw NSW]. |
Annexure C**: Letter to** Residents
Dear Resident,
I am writing to you in respect of the offensive odour that emitted between late June and late September 2023 from Bellettes Landfill Gilmore at 10 Killarney Road, Gilmore, New South Wales (“the Landfill”).
Between about 26 June 2023 and 29 September 2023, an offensive odour was emitted from the Landfill. This odour impacted some local residents.
Between about 6 September 2022 and 2 August 2023, Tumut Waste Pty Ltd failed to carry out licensed activities at the Landfill competently by failing to appropriately manage leachate generated within cell 10A of the Landfill. Between about 26 June 2023 and 29 September 2023, this caused the emission of offensive odour from the Landfill (“the odour offence”).
The offensive odour was caused by a combination of factors. These included increased water entry into the waste due, in part, to significant rainfall which generated leachate, created anaerobic conditions at the Landfill that were conducive to the production of hydrogen sulphide, and reduced the time in which significant landfill gas (“LFG”) was formed.
Between 24 August 2022 to at least 2 August 2023, leachate accumulated in cell 10A. No leachate was removed from cell 10A from when it became operational until 2 August 2023. During the offence period for the odour offence, Tumut Waste Pty Ltd did not have in place adequate controls, such as a flare, to collect LFG and treat it to remove odorous compounds.
Because LFG monitoring was not undertaken until 27 July 2023, and leachate pumping did not occur from cell 10A until 2 August 2023, LFG and odour mitigation actions were not considered at the earliest opportunity.
Tumut Waste Pty Ltd completed installation of a trial flare system on 29 September 2023. It subsequently installed a permanent LFG collection and combustion system.
The Environment Protection Authority (“EPA”) subsequently prosecuted Tumut Waste Pty Ltd in relation to the incident. Tumut Waste Pty Ltd pleaded guilty to two offences contrary to ss 64 and 129 of the Protection of the Environment Operations Act 1997 (NSW). These prosecutions were for causing the emission of an offensive odour from the Landfill, and for breaching a condition of its Environment Protection Licence.
On 26 February 2026, the Land and Environment Court of New South Wales (“the Court”) convicted Tumut Waste Pty Ltd of the two offences.
The Court fined Tumut Waste Pty Ltd a total amount of $270,000 and ordered that it pay the EPA’s costs agreed in the sum of $250,000. It also ordered that Tumut Waste Pty Ltd pay for a notice to be published in The Sydney Morning Herald and The Daily Advertiser, and for this letter to be placed in the mailboxes of all properties on the streets affected by the commission of the odour offence within 5 km of the Landfill.
The Court’s judgment may be accessed at [insert URL for judgment on Caselaw NSW].
[Signature block of director of Tumut Waste Pty Ltd]
Batlow Road, Gilmore
Blowering Road, Tumut
Bottlebrush Drive, Tumut
Boyd Grove, Tumut
Capper Street, Tumut
Carey Street, Tumut
Clarence Street, Tumut
East Gilmore Road, Gilmore
Forest Street, Tumut
Gadara Place, Tumut
Gilmore Mill Road, Gilmore
Godfrey Street, Tumut
Goobarragandra Road, Goobarragandra
Hassett Street, Tumut
Howick Street, Tumut
Killarney Road, Gilmore
Lambie Street, Tumut
Martin Place, Tumut
Orana Crescent, Tumut
Richmond Street, Tumut
Russell Street, Tumut
Simpson Street, Tumut
Snowy Mountains Highway, Tumut
Snowy Mountains Highway, Gilmore
Snubba Crescent, Tumut
Sydney Street, Tumut
Tumut Plains Road, Tumut Plains
Wynyard Street, Tumut
**********
6 March 2026 - Orders at paragraph 190 amended pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the "slip rule").
Environment Protection Authority
Tumut Waste Pty Ltd [2026] NSWLEC 18
(1993) 113 LGERA 357
(2006) 145 LGERA 234
(2001) 115 LGERA 304
(2002) 209 CLR 339
(1993) 32 NSWLR 683
(2009) 172 LGERA 225
(2013) 248 CLR 483
(2006) 45 MVR 402
(2024) 261 LGERA 103
(2018) 235 LGERA 114
(2014) 206 LGERA 239
(2019) 239 LGERA 31
(2014) 86 NSWLR 422
(1989) 167 CLR 348
(2004) 205 ALR 346
(2005) 228 CLR 357
(1988) 166 CLR 59
(2013) 199 LGERA 28
(1998) 194 CLR 610
(2009) 170 LGERA 253
(1981) 147 CLR 383
(1999) 199 CLR 270
(2000) 49 NSWLR 383
(2022) 253 LGERA 1
(1979) 143 CLR 458
(1988) 164 CLR 465
(1987) 163 CLR 561
(2010) 179 LGERA 386
(1988) 14 NSWLR 226
(2012) 192 LGERA 314