Environment Protection Authority v Wyong Shire Council

The facts 6The essential facts pertaining to the commission of each offence are not in contest between the parties. They are recorded in statements of agreed facts compiled cooperatively between the prosecutor and the Council for each charge. Those statements are supplemented by a bundle of documents tendered by the prosecutor without objection from the Council. Affidavit evidence was given by Julian Thompson on behalf of the prosecutor, directed to waste regulation, including the licensing regime under the POEO Act. Affidavit evidence was also received from several employees of the Council, including its General Manager, together with a further bundle of documents. These documents were admitted without objection from the prosecutor. 7It is convenient to address the facts separately for each Site. Because use of the Sites prior to the periods to which the charges relate differed, it is appropriate to separate each Site's history of use and then address the facts pertaining to the offence in respect of each Site.

The Toukley Site: history of use 8Land identified as Portion 369 in the Parish of Wallarah and County of Northumberland ( Portion 369 ) is Crown land. It is part of the Toukley Site. In September 1950 Portion 369 was reserved from sale for a depot for night soil under the Crown lands legislation. Later that same year the Council was appointed as trustee of that reserve. 9In December 1950 the Department of Public Health approved the use of Portion 369 as a sanitary depot. At the time, that Department was the waste regulator with no further planning control or authority necessary in order to implement that use. In consequence of the Department's approval, the Portion 369 was used not only for the disposal of night soil but also for the disposal of garbage. 10The area occupied by this activity was expanded in 1970 when the Department of Lands approved the addition of Portion 518 to the reserve, indicating that the additional area was reserved for "night soil and garbage disposal". Department of Health approval for the use of Portion 518 as a sanitary depot was given in 1971. This related to its use for receipt of garbage or rubbish, including putrescible garbage. 11The use of the Toukley Site as a garbage depot ceased in 1972. However, in that year the Toukley Sewage Treatment Plant ( the Toukley STP ) was constructed on Portion 369. Those treatment works continue to operate and do so under a licence issued by the prosecutor for that use. 12Following the closure of the garbage depot on the Toukley Site in 1972 and the subsequent construction and operation of the Toukley STP on Portion 369, the use of Portion 518 evolved. Once the sewage treatment plant was in operation, Portion 518 was used to dispose of night soil, sludge and septic tank effluent generated from the Toukley STP. When, in 1983, use of land adjoining Portion 518 was approved for a septic effluent treatment plant, sludge lagoons were located on Portion 518. 13From about 1985 until 1987 this night soil sludge was mixed with seaweed rack and sand to form a compost that was then used for gardening and landscaping works undertaken by the Council. It was not made available on a commercial basis. 14At the same time, part of Portion 518 was used by the Council for purposes ancillary to its undertaking of civil works. This use involved the temporary storage of material for use in road maintenance and building, as well as stockpiling virgin excavated natural material ( VENM ) and also the stockpiling and reprocessing of concrete and green waste. 15The agreed facts reveal that in 1999 the Toukley Site became the centre of the Council's activities involved in recycling of road construction material. That material was generally confined to gravel, recycled asphalt pavement, top soil and select fill. Material of that kind, together with other materials from Council works considered appropriate for recycling, continued to be brought to the Toukley Site. 16The Parish portions and other land to which I have earlier referred as generally comprising the Toukley Site, became Lot 11 in Deposited Plan 632403. The Toukley STP was located on the northern part of that lot. The activity that I have latterly described, involving storage and recycling of materials from Council works, was conducted on the southern part of Lot 11. The licence held by the Council from the prosecutor for the operation of the Toukley STP relates to the whole of Lot 11.

The Toukley Site: use during the charge period 17At the time of the offence, commencing in September 2007, staff of the Council believed that, having regard to the long history of use of the Toukley Site in general, existing use rights entitled it to dispose, store and recycle waste on the southern part of the Site. In carrying out this activity in the manner in which it was undertaken, senior staff of the Council believed, incorrectly as it turned out, that the requirements of the POEO Act were being addressed. I will discuss this evidence in due course but suffice for present purposes to note, consistent with the Council's plea of guilty, is that no licence required by the Act was held for the conduct of that activity. 18In August 2007, a contractor hired by the Council crushed a quantity of concrete that had been stockpiled on the southern part of the Toukley Site. The concrete was material that had been brought to the Site from road and pavement works being conducted by the Council elsewhere. Mixed with the concrete were broken drainage pipes. These pipes had been manufactured of asbestos concrete, a fact unknown both to the contractor or any member of the Council's staff. As a result of the crushing process, the material became contaminated with asbestos. The material being crushed was for use as a sub-grade replacement material or road base. 19As a result of analysing the cost of civil works projects undertaken by the Council in 2007, it was calculated that between 25 per cent and 35 per cent of that cost was being expended on fees for depositing waste material at a licensed landfill facility located at Buttonderry. The analysis also revealed that a portion of these fees was being paid for materials that were clearly capable of being recycled for use in other civil works. 20As a consequence, the decision was made to extend the use of the Toukley Site for recycling purposes. A direction was given to staff that materials suitable for recycling or re-use be delivered to the Toukley Site. 21In order to improve the facility at the Toukley Site for storage and recycling of material, improvement works were undertaken in September, October and November 2007. Those works involved the compaction of waste material that had been on the Site for some time in order to form a hard stand area upon which the storage and recycling process could be undertaken. 22Measures to control the use of the Site were also introduced. These included the permanent appointment of a Council staff member to the Site whose function, as gatekeeper, was to exclude members of the public from use of the Site; to keep itemised records of material brought to the Site as well as recording all material that was taken from the Site. It was thought that these records satisfied the waste tracking requirements of the prosecutor. 23It was also the function of the gatekeeper appointed to the Toukley Site to direct where material brought to the Site should be deposited. On occasions, this necessitated him moving from the gate in order to direct a carrier to a particular location, with the result that another waste carrier could enter the Site unobserved. 24A sign was erected at the gate of the Toukley Site warning the public against entry. The sign further indicated that only "authorised recyclable material" was to be tipped at the Site. As a result of the steps then taken, it is accepted by the Council that between October 2007 and July 2008 the waste deposited at the Toukley Site resulted from deliveries made either by members of the Council's staff or by contractors retained by the Council for the conduct of civil works. 25Details of the materials that were acceptable for deposit at the Toukley Site were circulated to all relevant personnel as were procedural requirements for those loading and delivering materials to the Site. The employed gatekeeper was made aware of all of these requirements. 26Between 2 October 2007 and 2 June 2008, 44,728 tonnes of waste was deposited at the Toukley Site. During the same period almost 14,500 tonnes of this material was transported from the Site, while the bulk of the remainder had been allocated for re-use.

Investigations by the prosecutor 27On 3 June 2008, the prosecutor wrote to the Council indicating that it was conducting an investigation in relation to waste facilities within the Council's area. It afforded the Council the opportunity to advise of any non-compliant sites of which it was aware. The Council responded promptly on 5 June, stating that it would be undertaking a Shire-wide audit of closed landfills and similar lands. The Council's letter also indicated that: "[p]reliminary investigations indicate that the transfer stockpile site at Toukley Sewage Treatment Plant and Mardi closed landfill MAY not be fully compliant with the ... requirements [of the POEO Act]". 28As a consequence of the Council's letter, there was a meeting later that month between Council staff and staff of the prosecutor concerning the nominated Sites. Following that meeting, the Council was requested by the prosecutor not to remove any material from the Toukley Site until investigations had been completed and evidence collected. It was indicated by the prosecutor that a clean up notice would be issued once the process was complete, such notice "facilitating" the removal of waste and rehabilitation of the Site. 29The Toukley Site was inspected by officers of the prosecutor on 20 July 2008. On the southern (and relevant) part of the Site they observed: "8 large stockpiles of waste along the northern and eastern sections of the site. The stockpiles had been separated into different waste types, including soil material, concrete for crushing and aggregate." 30Each of these stockpiles was inspected, materials contained within them described and samples taken for testing. The materials described in these stockpiles ranged from clayey soils mixed with gravel and vegetation to crushed concrete, some with steel reinforcement present, broken tiles, broken bricks, used quarry gravels, asphalt pieces dug from roads, tyres, wire and plastic materials. 31Two of the five samples taken by officers of the prosecutor were tested for the presence of asbestos. One such sample showed the presence of bonded chrysotile asbestos. Further sampling undertaken for the Council by Environmental Monitoring Services confirmed the presence of small particles of asbestos in some material. 32A draft clean up notice was issued by the prosecutor to the Council on 21 July 2008. This draft notice required removal of all stockpiled material by 12 September 2008. Discussion ensued between the Council and the prosecutor in relation to the removal of this material, resulting in the time for removal being extended to 24 October 2008. On that date, the responsible officer from the Council advised the prosecutor that the work that was the subject of the clean up notice had been completed. 33The cost incurred by the Council in complying with the clean up notice was $3,505,974. That sum included $1,446,829 in tipping fees and $950,530 in levies.

Use of the Mardi Site prior to September 2007 34In 1921, the Minister for Public Health approved the Mardi Site for use as a depot for the disposal of night soil and garbage. In 1922 the land was resumed by the Council for that purpose. From 1922 until 1981 the Site was used as a garbage depot. The area used within the Site for that purpose was extended in 1982, following receipt of approval so to do from the Health Commission of New South Wales. The entire Site then became known as the Mardi Landfill and continued to operate as such until April 1990 when the landfill was closed. 35Following closure of the Mardi Site as a landfill, the Council prepared a rehabilitation plan given that it, along with neighbouring land, was identified as an urban release precinct. Subsequently, consent was given to backfill and landscape the Mardi Site in order to provide open space to be used in conjunction with adjoining residential land. 36Before the Site could be used for its ultimate open space purpose, its remediation was required. To that end consultants were retained to address both the stability of the Site and the measures required for remediation. Following a number of preliminary investigations and reports, in 2006 the Council invited tenders for the detailed investigation of the Site to achieve its remediation. Ultimately, a company trading as Environmental & Earth Sciences was the successful tenderer. 37The remediation of the Mardi Site was being undertaken pursuant to the provisions of State Environmental Planning Policy No 55-Remediation of Land. The Site investigation for remediation included the undertaking of works that were described as Category 2 works under the provisions of the State Policy. In accordance with the remediation action plan prepared by Environmental & Earth Sciences, access to various parts of the Site by a drilling rig was required. Bore holes were necessary to be drilled as part of the investigation process. 38However, access to portions of the Site by a drilling rig was not possible due to the wet and unstable conditions of the landfill. In order to provide access, it was requested of the Council that it construct access roads within the Site to facilitate investigation.

Use of the Mardi Site during the charge period 39Between 6 and 10 September 2007 approximately 2,000 tonnes of crushed concrete was brought to the Site for the purpose of constructing the access roads. As I have earlier indicated, material of this kind was considered appropriate as a road base. Some seven roads were constructed using this material. These roads ranged in length from 9m to 249m with the depth of material ranging between 0.1m to 0.3m. 40The crushed concrete material used for construction of these internal access roads was sourced from the recycled materials at the Toukley Site. As it happened, the material used was that which had been crushed by a contractor at the Toukley Site in August 2007. It was the material which, at the time of crushing, had included broken asbestos cement pipes. As a result, the recycled waste used for construction of roads on the Mardi Site was contaminated with asbestos fragments. The fact that the material was contaminated in this manner was unknown at the time of its transportation to and use at the Mardi Site. 41The Council did not hold a licence to deposit waste at the Mardi Site.

Inspection by officers of the prosecutor 42The Site was visited by officers of the prosecutor on 16 July 2008. They observed that a gate prevented vehicular access to the Site. However, they observed a youth riding a bicycle along one of the roads that had been constructed, observing that the road material appeared to comprise crushed concrete, bricks and fragments of pipe. 43Further inspections were carried out by officers of the prosecutor in October and December 2008. The observations then made extended to identify the crushed material to include not only concrete and crushed bricks but also used plastic, small pieces of steel and material suspected to be asbestos. The officers also observed that there were about 40 residential dwellings within 250 metres of the access road at the Site, the closest of those being only about 15m from what was described as the eastern access road constructed with the materials brought to the Site in September 2007.

Clean up of the Mardi Site 44On 22 December 2008, the prosecutor requested information from the Council as to the activities conducted at the Mardi Site and also requested that the "unsealed rubble road" at the Site be the subject of an independent assessment report. As a result of that request, Environmental & Earth Sciences carried out an inspection and indicated that material from that road contained broken bonded "asbestos contaminated material" ( ACM ). The report indicated that the ACM was "of relatively low risk in the circumstances". The advice received from Environmental & Earth Sciences was immediately reported to the prosecutor. 45Subsequently, Environmental & Earth Sciences provided the Council with an Asbestos Management Plan. That Plan identified seven locations where the crushed material contained asbestos fragments and indicated that hand removal could be undertaken. 46A draft clean up notice was sent to the Council by the prosecutor on 3 March 2009. The initial time fixed for compliance was extended at the request of the Council. The Council met that deadline and in April 2009 provided a validation report to the prosecutor indicating that all ACM had been removed. 47The cost incurred by the Council in complying with the clean up notice was $479,512 which included $188,645 in tipping fees (excluding levies) and $76,369 in contractors fees for asbestos removal which included air monitoring during the process. The work undertaken by the Council included removal of all deposited material.

Organisational arrangements within the Council 48The Council acknowledges that at the time of the commission of the offences in each matter there was a significant lack of communication between two departments within the Council, namely the Shire Planning Department and the Shire Services Department. Personnel within the Shire Planning Department were responsible for planning and compliance matters while the Shire Services Department was responsible for carrying out works within the Council's local government area. 49Within the Shire Services Department were a number of sections including 'Parks and Gardens', 'Water and Sewer' and 'Roads and Drainage'. The Roads and Drainage section undertook road construction, maintenance, as well as curb and footpath works. The activities undertaken by that section included the excavation of roads and footpaths. This work almost inevitably resulted in the generation of waste material requiring disposal, including what was described as "road diggings", asphalt, bitumen, concrete, pipes, gravels and soils. Those materials were often capable of being recycled or reprocessed for use in other works of the Council. Works undertaken by employees in the Roads and Drainage Section produced a large proportion of the total waste generated by works undertaken by the Shire Services Department. 50At the relevant times, the Manager of the Roads and Drainage section of the Department was Mr Andrew Pearce. The Project Executive was Mr Andy Vestering and the Director of Shire Services until 2008 was Mr David Cathers and thereafter Mr Paul Wise. It was Mr Vestering's function to address systems for implementing projects undertaken by the Shire Services Department, which included the promotion of savings on works undertaken by that Department. He was also required to address projects when directed so to do by Mr Cathers. He saw his role as providing the Director of Shire Services with information as to the manner in which the functions of the Department were being performed. 51It was Mr Vestering who, in 2007, had identified the extent to which materials capable of being recycled were being taken to the Buttonderry landfill and thereby incurring tipping fees. Following discussion with Mr Cathers, it was Mr Vestering who ordered that materials capable of being recycled or reprocessed for use be taken to the Toukley Site for that purpose. He issued the circular to all relevant staff members as to the nature of the materials that were capable of being recycled and also setting out the protocols for delivery of those materials to the Toukley Site. He issued the instruction to the gate controller at the Site to turn away trucks carrying materials that did not meet the description identified in his circular or otherwise meet the protocols for delivery. 52The protocols for delivery which Mr Vestering had formulated included detailed record keeping for all loads delivered and subsequently carried from the Site, including not only identification of the vehicles used but a detailed description of the materials carried. It was believed by him that by establishing these detailed protocols, including the establishment of ledgers recording materials in and materials out, the Council was complying with the requirements under the POEO Act. In performing these tasks, Mr Vestering had regular contact with the Director of Shire Services, providing monthly reports to him upon the projects being undertaken, including the operation of the Toukley Site. 53The measures introduced by Mr Vestering in respect of the Toukley Site, including the appointment of a permanent gatekeeper, were seen by him to minimise the unauthorised dumping of material at that Site. Until those measures were introduced, unauthorised dumping of waste at the Site had been a problem for the Council. 54It is necessary to record that Mr Vestering had been responsible for directing excavated waste material to be taken to the Toukley Site to be processed for re-use since about 1999. The more specific procedures and requirements that he introduced in 2007 were directed to achieve the more efficient use of the Council's resources, having the potential to reduce the cost of undertaking the construction and repair of public roads and footpaths. 55In January 2008, Mr Cathers sent an email to Mr Vestering which stated: "Andy: I think we should now be getting things right in terms of the approval of the activity we are undertaking on the site. Would you pls commence the process in terms of obtaining consent (ie a DA) for what we are doing and what we want to do in the future on that site." 56At the time of sending that email, Mr Cathers expressed his belief that he and "most people that he was aware of" thought that the activities that were being undertaken on the Toukley Site were permissible in that it was "an extension of the original recycling that Council had been undertaking for many, many years". He had become aware of different opinions from some within the Council which prompted his observation to Mr Vestering. 57Following receipt of Mr Cathers email, Mr Vestering sought advice from Shire Planning in relation to activities at the Toukley Site, including the mixing of sludge with topsoil for use in landscaping projects. He was advised that any waste activity undertaken on the STP premises must be "ancillary to the licensed activity". He was also advised that the maximum quantity of waste brought to the Site had to be under 30,000 tonnes per annum in order to comply with the POEO Act. 58In February 2008, it was brought to Mr Vestering's attention that a load of material brought to the Toukley Site from works being carried out by the Roads and Drainage section contained asbestos concrete pipes. As a result of learning this, Mr Vestering sent an email to Mr Andrew Pearce, as Manager of the section, indicating that any material suspected to contain asbestos was to be taken to the Buttonderry landfill which had a facility to handle material of that kind. He also complained that the asbestos pipes had been delivered to the Toukley Site in a manner that bypassed the gatekeeper who, at the time of delivery, was supervising the deposit of other material away from the Site gate. This had resulted in the absence of any report to the gatekeeper of that delivery. 59The Council accepts that at the time of commission of the two offences with which it is charged, Council staff working within Shire Services had not been provided with any training in waste management or waste classification by the Council. Employees were left to learn "on the job". Apart from the instruction protocols established by Mr Vestering in respect of the Toukley Site in mid 2007, there were no written procedures provided in relation to waste management. Mr Vestering is recorded as indicating that "there was nothing specifically to say this waste that you have from here needs to go there and you need to treat it in this way". 60Consequent upon the commission of the present offences, the regime for addressing compliance with statutory processes has changed. This includes the appointment of a "duty planner" to deal directly with compliance by Shire Services of the Council's obligations to obtain approvals and licenses where required by statute or regulation. Further observations in this regard will be made later in these reasons.

Sentencing considerations 61When determining the appropriate sentence to be imposed for the commission of an offence, it is necessary that both the objective circumstances of the offence and subjective circumstances of the defendant be considered ( Veen v The Queen (No 1) [1979] HCA 7; (1979) 143 CLR 458 at 490). The penalty that is considered to be appropriate should be determined by an instinctive synthesis of all relevant objective and subjective circumstances ( Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357). 62The purposes of sentencing are identified in s 3A of the Crimes (Sentencing Procedure) Act 1999 ( the CSP Act ). When imposing a sentence or penalty against a provision or provisions of the POEO Act, s 241 of that Act requires the Court to consider five matters so far as they are relevant to the offence or offences in question. That section relevantly provides: " 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, (e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee."

Objective seriousness of the offence 63The maximum penalty for an offence by a corporation against s 144 of the POEO Act is $1M. Fixing of that maximum penalty reflects the public expression by Parliament of the seriousness with which a breach of the section is to be considered ( Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698). Further, in determining the objective seriousness of an offence against the POEO Act, the objects of the Act may be taken into account ( Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [168]-[172]). 64The objects of the POEO Act are stated in s 3. They include the protection, restoration and enhancement of the quality of the environment of this State together with the reduction of risks to human health and degradation of the environment by use of mechanisms promoting pollution prevention, the reduction to harmless levels of the discharge of substances likely to cause harm to the environment, the making of progressive environmental improvements including the reduction of pollution at source and the monitoring and reporting of environmental quality on a regular basis. A significant mechanism created by the Act to achieve these objectives is the establishment of a licensing regime for activities which, by their nature, have the potential for environmental degradation or harm. 65Conduct that does not meet with the regulatory requirements of the POEO Act tends to undermine the statutory scheme for the regulated use of premises undertaking activities that are scheduled under the Act. That proposition cannot be gainsaid. However, it must be acknowledged in the present case that the actions of the Council were less subversive of the objects of the POEO Act than the brief statement of principle might suggest. While failure to obtain a licence when one is required is an important consideration when addressing the seriousness of an offence, it must also be acknowledged that the activity carried out on the Toukley Site, involving the recycling of materials excavated from road and pavement works, was beneficial in fulfilling not only one of the objectives of the POEO Act but also other legislation. 66An objective stated in s 3 of the POEO Act is one directed to the "re-use, recovery or recycling of materials". An objective of the Waste Avoidance and Resource Recovery Act 2001 is to address resource recovery, including re-use, reprocessing and recycling of materials that would otherwise be directed to a waste facility. Thus, although the requirement to obtain a licence was breached, the nature of the offending conduct and its consequences must be considered in the broader context of the legislation. 67I turn now to consider those matters relevantly arising for consideration under s 241 of the POEO Act.

Harm caused to the environment: s 241(1)(a) 68The Council's plea of guilty to each charge carries with it the acceptance that the material deposited at each of the Toukley Site and Mardi Site was "waste" within the meaning of the POEO Act. The defendant accepts that the deposition of that waste at each Site did result in environmental harm. The word "harm", as used in the phrase "harm to the environment" is defined in the Dictionary to the POEO Act to include: "any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution." 69The statement of agreed facts tendered in respect of each offence indicates that the offence "technically resulted in 'environmental harm'" by reason of the definition to which I have just referred. The prosecutor accepts that the environmental harm was "at the low end of the scale". 70There is no evidence before me to indicate that the offence caused "pollution" at either Site. Further, there was no evidence presented supporting a submission made by the prosecutor that the improper disposal of waste at the Sites had potential human health risks. 71As the facts that I have summarised indicate, the Toukley Site had been used since about 1950 for night soil and garbage disposal while the Mardi Site had been used for garbage disposal since 1922. Each Site had therefore been "harmed" by that use and no evidence was presented indicating the extent to which the commission of the offences caused further harm to those Sites. 72Moreover, the response of the Council to the clean up notices issued in respect of each Site indicated that the "harm" represented by the deposition of waste which was the subject of the charges meant that such harm was of limited duration. All waste material was removed from each Site as the prosecutor's notices required. 73It must be acknowledged that during the time at which the road base containing asbestos fragments was located on the Mardi Site, there was potential for environmental harm by reason of that fact. However, in this regard the determination by Environmental & Earth Sciences that the ACM was "of relatively low risk in the circumstances" does not elevate the potential for harm to any significant level. Equally, while the presence of chrysotile asbestos identified in some soil samples taken from the Toukley Site would indicate the potential for harm, as I have said, the evidence does not reveal that potential being transformed into actuality. 74For these reasons I accept that the "harm" that is required to be considered by s 241(1)(a) is at "the lower end of the scale" and, as events occurred, was transitory. These circumstances reduce the objective gravity of the offence (cf Environment Protection Authority v Fulton Hogan Pty Ltd [2008] NSWLEC 268; (2008) 163 LGERA 345 at [148]).

Practical measures: s 241(1)(b) 75The Council accepts that practical measures could have been taken to prevent the commission of these offences, namely obtaining an environment protection licence under the provisions of the POEO Act. In the case of the Mardi Site, it also accepts that it could have used material from a licensed waste facility or waste that was accompanied by a certificate validating its origin and quality for the purpose of use at that site. 76Gina Vereker, the present Director of the Council Shire Planning Department, states in evidence that had Shire Services consulted her Department as to the need for a license to use recycled material for road construction at the Mardi Site, it is "unlikely" that officers of her department would have advised "that a waste license was required for that purpose." That evidence reflected the general understanding of the Council's officers at the time of the offence. It was not appreciated that an environment protection licence was required to apply road base to a road constructed to assist investigation of the Site for its remediation. The crushed concrete material at Mardi was used in the belief that the Council was acting lawfully in so doing.

Foreseeability of harm: s 242(1)(c) 77The Council accepts that, to the extent that there was harm caused or likely to be caused by the commission of the offences, it could reasonably have foreseen the potential for harm to the environment. This concession is properly made.

Control over causes: s 241(1)(d) 78The Council accepts that it had control over the operations at the Toukley Site and the activities being undertaken at the Mardi Site. 79The evidence reveals that, prior to the commission of the offences, problems with unauthorised dumping of waste at the Toukley Site occurred, with the result that controls were necessary in order to ensure that operations at that Site were conducted appropriately. The failure to implement all necessary controls at the Toukley Site was, in part, due to the lack of appropriate liaison between the Shire Services Department and the Shire Planning Department.

State of mind of the offender and reasons for the offences 80While an offence against s 144 of the POEO Act is a strict liability offence, the state of mind of the offender at the time of the offence is relevant. It can have the effect of increasing or decreasing the seriousness of the offence ( Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [42] and the cases there cited). 81The prosecutor submits that the seriousness of the offence relating to the Toukley Site is increased because that offence involved the Council "at a high level of its hierarchy, formulating a plan to use the Toukley Site in a way which was illegal". The evidence does not satisfy me to the requisite standard that the prosecutor's submission can be sustained. 82The prosecutor's submission is sought to be founded upon a string of emails passing between Mr Vestering and his superior, Mr Cathers. There are two aspects of these emails upon which reliance is placed. 83First it is submitted that Mr Vestering's direction that materials capable of recycling should be taken to the Toukley Site, following upon his cost analysis between May and September 2007, was a decision taken to avoid the payment of levies at licensed landfill sites. While it is correct that the capacity to save on landfill levies had caused Mr Vestering to focus more closely upon the recycling of materials capable of re-use on Council projects, the evidence does not establish that his motivation was to avoid compliance with relevant legislation. 84As I have earlier indicated, Mr Vestering was familiar with the use of the Toukley Site for recycling materials excavated during road work programs, a use of the Site that had been undertaken, to his knowledge, at least since 1999. The detailed measures that he put in place in 2007 for the use of the Toukley Site as a place for storage and recycling materials to be used in Council works were inconsistent with any nefarious motive. His specification of materials that could be taken to the Site, the controls that he sought to impose by circulating relevant personnel in relation to those materials, including the keeping of itemised records for materials taken to and removed from the Site, were all considered by him to meet the prosecutor's waste tracking requirements. His directions and protocols were seen to involve a more efficient use of the Council's own materials rather than wasting those assets. There is no proper basis, reasonably considering the documentary evidence, to conclude otherwise. 85The second basis upon which the prosecutor makes the submission of deliberate illegality is an inference, said to be available from the email exchanges, that regulation by way of licence was required but a decision made not to seek it. A consideration of the terms of the email string relied upon does not support the inference. 86Reliance in particular is placed upon an email dated 9 November 2007. In that email from Mr Vestering to Mr Cathers, the former describes the processes put in place at the Toukley Site to gather information in relation to "materials, sources, categories, quantities and drivers involved in [the] material handling process". Mr Vestering continued by indicating that the gathering of this information "provides a measure of control in identifying the excavation, transportation, use or disposal of materials involved in completing our civil works (helps to meet EPA requirements)". Other documents make apparent Mr Vestering's belief that waste tracking requirements were imposed by unspecified regulatory provisions but that landfill licensing provisions did not, in the circumstances, apply. 87Mr Vestering had reported to a number of people in January 2008 that up to 30,000 tonnes of waste per annum could be received at the Toukley Site without the necessity to obtain a licence. That statement would have been correct at the time (Sch 1, paragraph (d) of 'Waste facility', POEO Act) but for the fact that the Toukley Site was located within an "environmentally sensitive area" within the meaning of the POEO Act because it was within 250m from residential dwellings not associated with the facility. This additional qualification creating the need for a licence, was not understood by Mr Vestering nor, as it seems, by any other officer of the Council at the time. It is not suggested to the contrary by the prosecutor. 88In his email of 25 January 2008, Mr Vestering nominated the quantity of waste received to date and predicted the quantity of material likely to be delivered in the remaining 12 month period. He opined that upon his prediction, the quantity of waste taken to the Toukley Site would be "within the allowable limit". 89As it happened, more than 30,000 tonnes of waste material was delivered to the Toukley Site. However, there is no evidence to support an inference that this was an intentional breach of what was understood to be the threshold for licensing requirements. 90In operating the Toukley Site as it did, the defendant believed that it had existing use rights to conduct the waste processing and recycling facility as it was doing. As the statement of agreed facts in relation to that Site indicates, Mr Cathers, as director of the Shire Services Department had said that "he, and most people that he was aware of, were of the understanding that the activities that were undertaken on the Site were permissible, 'i.e, it was an extension of the original recycling that Council had been undertaking for many, many years'". Given the history of use of the Site dating back to the early 1950s when it operated following the grant of the only approval then required, namely that from the Department of Public Health, the belief held by Mr Cathers and other senior officers of the Council seems to me to have been a belief that was reasonably held, albeit that the legal consequence of the use, namely the need for a licence, was not understood for reasons already explained. 91I have already identified the circumstance in which crushed concrete containing asbestos fragments was taken to the Mardi Site for internal road construction. As the facts that I have recited indicate, the Council committed this offence when facilitating an environmentally beneficial aim, namely the remediation of a closed landfill site to permit its ultimate use as an area of open space, principally for the benefit of newly developed adjoining residential areas. The evidence of Ms Vereker indicates that substantial sums had been budgeted for expenditure on the Mardi Site in order to achieve the objective. Some $654,000 had been budgeted for site investigation through to 2011 while a total of a little over $6,000,000 had been budgeted for final site rehabilitation to be expended between 2011 and 2014. 92Taking account of all these matters, the evidence does not establish that the offences with which the Council has been charged should be viewed as being more serious because of the state of mind of the Council or the reasons for committing the offences. While the legal conclusion drawn by the senior staff of the Council as to the need for licenses under the POEO Act was wrong, the criminality involved is, to my mind, decreased rather than increased by reason of the circumstances that I have described.

Conclusions on objective gravity of the offence 93The prosecutor identified four matters in support of a submission that the objective seriousness of the offence should be considered as being "at least mid-range". Those four factors are: (i) the offence was premeditated; (ii) the offence was committed for commercial gain in that it was committed to avoid the cost of waste levies payable for depositing material at a licensed facility; (iii) the Council was a body charged with statutory responsibilities under the POEO Act; and (iv) the volume of waste deposited. 94I have already addressed factors (i) and (ii) identified by the prosecutor. I do not accept that the evidence establishes, to the requisite standard of proof, a basis to sustain those submissions. Although legally misconceived, I accept that senior staff within the Council undertook the actions that were taken at each of the Toukley Site and Mardi Site in the belief that they involved the proper use of those Sites and that the recycling of waste materials from the Council's own civil works was a beneficial exercise. 95A submission that the offences should be seen as being more serious because the Council itself is an environmental regulator needs to be considered in context. While it is true that the Council does have functions to perform under the POEO Act, its function, as regulator, does not extend to the regime of waste regulation. That function is, and has for some years, been vested in a central government authority, namely the prosecutor. 96Perhaps of greater significance is the circumstance that the submission made by the prosecutor in this regard is one that was considered by Preston CJ in Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278. There, his Honour determined at [85] that "there is no principle that a penalty should be increased by reason that the defendant is a public authority rather than a private person." His Honour continued by stating at [86] that a council as a public body, "should not receive a more lenient penalty merely because of its status as a public body." 97The Council's failure to recognise its obligation to obtain a licence under the POEO Act, when it ought properly to have understood that obligation, is relevant to the penalty to be imposed upon it. Beyond that, its existence as a public body neither aggravates nor mitigates the offence. 98While the quantity of material deposited at each Site is relevant to be considered, as is the content of that material, I do not think that the quantities involved significantly impact upon the seriousness of the offence. In the case of the Mardi Site, the quantity at 2,000 tonnes laid as road base was not significant, although the fact that it contained asbestos must be recognised. 99While a quantity of material in excess of 44,000 tonnes deposited at the Toukley Site during the charge period must necessarily be taken into account, it must also be recognised that the defendant believed it was entitled to deposit up to 30,000 tonnes of material without the necessity to obtain a licence. Exceedence of that limit occurred due, as I have determined, to unintentional oversight. Once again, the existence of a small quantity of asbestos within this material must be recognised. 100The submissions advanced by the Council in this context may be summarised in the following way: (i) the Toukley Site has been used for waste disposal, storage and recycling for a period in excess of 60 years; (ii) the Council held the reasonable belief that it had existing use rights for this purpose; (iii) the Council thought that it had been operating within the relevant threshold requirements such that an environmental protection licence was not required; (iv) use made of the Toukley Site was for the environmentally beneficial purpose of recycling; (v) the Council believed that the crushed material used for road construction at the Mardi Site was appropriate for that use, aiding the beneficial purpose of remediating and rehabilitating the closed landfill site; and (vi) there was minimal and no lasting environmental harm at either Site. 101As would be apparent from the various factors that I have discussed leading to consideration of the objective seriousness of the offences, I generally accept the submissions advanced on behalf of the Council. I do not overlook the fact that the offence is one of strict liability and, as I have already said, the Council failed to take those steps that it ought to have taken in order properly to investigate the need for a licence. It also failed to take sufficient steps to ensure that material it received for recycling contained no substances, such as asbestos, that, in themselves, had the capacity to impose a particular adverse impact upon the environment. Having regard to all the matters that I have addressed, I conclude that the offences are at the low end of medium objective seriousness.

Subjective factors 102When determining the penalty appropriate to be imposed for these offences, it is necessary to take account of those factors personal to the Council that either aggravate or mitigate the seriousness with which the conduct of the defendant should otherwise be considered. So much is required by the provisions of s 21A of the CSP Act. 103None of the aggravating factors identified in s 21A(2) of the CSP are established on the evidence before me. However, there are a number of mitigating factors identified in s 21A(3) that must be recognised.

Prior criminality 104The Council has no prior convictions for an environmental offence.

Plea of guilty 105The Council pleaded guilty at an early stage of the proceedings. So much is acknowledged by the prosecutor. That early plea warrants a discount of up to 25 per cent for the utilitarian value of that plea ( R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383).

Contrition and remorse 106The Council acknowledges and accepts that at the time of the commission of these offences, there was a lack of sufficient communication between Shire Services, the department responsible for conducting the Council's civil works operations, and Shire Planning, the department responsible for planning and compliance matters. Remorse has been expressed on behalf of the Council that this circumstance contributed to the breaches that occurred. I accept the expressions of remorse as being genuine. 107Mr Michael Whitaker has been the Council's General Manager since May 2010. In his affidavit evidence which was not challenged, he said that it was "unacceptable that the operation was conducted unlawfully, in breach of environmental legislation" and expressed "particular remorse" on behalf of the organisation. 108In her affidavit evidence, Ms Vereker, the Council's Director of Shire Planning, also said that the Council was "genuinely remorseful" that the offences had occurred. She further stated that during meetings with the then General Manager of the Council in August 2008, Mr Kerry Yates, he had "expressed his displeasure and remorse that this had occurred and that whatever action was necessary to address the situation must be taken." Mr Yates directed that Ms Vereker and Mr Wise, the Council's Director of Shire Services, work together on initiatives to implement organisational change concerning waste management and environmental awareness. 109These directions have been carried into effect. 110An external consultant having expertise in organisational reform was retained by the Council to conduct a review of its organisational structure. The Council accepted the recommendations of that review and created a new managerial position for the purpose of implementing the consultant's recommendations. Following appointment to that new managerial position a "Cultural Change Project Plan" was adopted by the Council and implemented thereafter. 111The Council also implemented a training program for Shire Services staff, particularly directed to environmental awareness. An external consultancy was retained in order to provide environmental training to staff. In addition, a new permanent position was created for an Environmental Management Coordinator, not only to implement and oversee the training program, but also to liaise with Shire Services operational staff in respect of environmental management issues. In the period of nine months to 30 June 2010 staff training conducted by the external consultant had resulted in a cost to the Council of $47,000. 112A further step taken by the Council to address the circumstances giving rise to the present offences was the introduction of a system of environmental auditing of activities conducted by staff within the Shire Services Department. That task is undertaken by the holder of a newly created position of Senior Environmental Auditor within the Shire Planning Department. 113In all, the Council has incurred a sum of about $527,000 in staffing costs in order to implement the reforms that followed the commission of these offences. This figure does not take account of the fees paid to consultants. 114Apart from the expressions of contrition and remorse by senior staff of the Council, its actions do, to my mind, reinforce the fact that it is genuinely contrite and remorseful for its breaches of the POEO Act.

Cooperation with the prosecutor 115The prosecutor acknowledges that the defendant fully cooperated with it once investigations revealed the likelihood that the current offences had been committed. That cooperation included the making of all relevant staff available for interview by the prosecutor's investigators. 116The Council also complied promptly with the clean up notices issued to it by the prosecutor in respect of each Site. Compliance required the complete removal of all waste material deposited at each Site. 117As I have earlier indicated, the cost of compliance with these clean up notices was significant. In the case of the Toukley Site, the total cost was $3,505,974 while the cost incurred at the Mardi Site was $479,512.

General deterrence 118Section 3A(b) of the CSP Act identifies a purpose of imposing a sentence which is described under the rubric of general deterrence. It requires that a penalty imposed upon an offender be sufficient to deter others who might otherwise consider that commission of the offence attracts only a nominal penalty ( Bentley v BGP Properties Pty Ltd at [140]). 119The POEO Act was enacted by the legislature as a reflection of the community's concern for the environment and the expectation that those who breach its requirements will be appropriately punished. By reason of that legislation, the community is entitled to expect that the environment will be protected conformably with its provisions which include the observance of the licensing regime, affording the statutory regulator the opportunity to prevent or control the environmental impact of scheduled activities either by refusing a license or imposing conditions. This opportunity is denied when a form of land use required to be licensed under the Act is carried out without such licence being sought and held. Omission to obtain a licence when one is required is, to my mind, potentially no less serious than an act of commission, involving a breach of licensed conditions. 120These are factors to be considered when determining an appropriate penalty reflecting the need for general deterrence.

Specific deterrence 121The evidence before me does not suggest the need for deterrence directed specifically to the Council. Once the circumstances giving rise to the present offences came to be appreciated, the Council acted responsibly and in a way that recognises the diligence that must be employed to ensure that all regulatory requirements imposed upon the conduct of its activities are observed. The evidence of the measures taken have been identified earlier in this judgment.

Parity 122The principle of even-handedness or parity in sentencing requires a court to have regard to the general pattern of sentencing for an offence of the kind being considered. This said, care must be taken in undertaking that task, as the wide divergence of facts and circumstances leading to the imposition of a penalty in a given case will almost invariably militate against direct comparison with the case under consideration. 123The only case in this Court in which an offence against s 144 of the POEO Act has been considered is the decision of Pain J in Environment Protection Authority v Smart Skip (NSW) Pty Ltd [2009] NSWLEC 204. The defendant in that case entered a plea of guilty. The offence involved the use of a site as a transfer station for more than 55,000 tonnes of waste per annum, consisting of demolition waste that included concrete, metal, bricks, plastic and soil. Notwithstanding the quantity of material that had been deposited on the site, there was no evidence of actual environmental harm. 124Her Honour concluded that the offence was "at the low to medium end of the spectrum" (at [29]). She observed that the defendant in that case was a commercial operator in the waste industry and that by using the land that it did without a licence, it had gained some commercial advantage over its competitors. That is not a consideration relevant to the determination of penalty in the present case. Otherwise, the subjective circumstances in mitigation included an early plea of guilty, expression of contrition and remorse, assistance to authorities and the taking of further steps to avoid recurrence of the offence. 125In Smart Skip a fine of $50,000 was imposed which included a discount for an early guilty plea. Legal costs in the sum of $20,000, were also agreed to be paid by the defendant. While that determination is useful, the divergence of facts and circumstances between that case and the present must clearly be recognised when determining the penalty in the present case. 126In Environment Protection Authority v Port Stephens Council [2011] NSWLEC 209, I was required to consider the penalty to be imposed upon the defendant Council for an offence against s 48(2) of the POEO Act. That offence seems to me to be complementary to an offence under s 144 in that it renders guilty a person who occupies premises at which a scheduled activity is carried out unless that person is the holder of a licence authorising that activity at those premises. The "scheduled activity" in that case was the operation by Port Stephens Council of a waste facility without a licence. 127Port Stephens had acquired a disused quarry site in 1977 that, prior to its acquisition, had been used to dispose of garbage. From about 1987 that council used the site for the storage and disposal of material excavated or removed from road works, pavement works and drainage works which it or its contractors had carried out. Use of the site for that purpose continued until 2008 when its use was discovered by officers of the prosecutor. Like the present case, officers of the defendant council had believed that the council was entitled to use the premises for the storage and disposal of waste material, given its historic use, but had overlooked the requirement to obtain a licence so to do. Again, in circumstances that are relevantly similar to the present case, upon the breach of the POEO Act being discovered, Port Stephens Council took extensive measures to ensure that further offences of that kind were not committed. That council had no prior convictions for an environmental offence and had entered a plea of guilty at the first opportunity. 128The offence by Port Stephens Council was a single offence for which I imposed a fine of $40,000. In addition, legal costs of $44,000 and investigation costs of $27,000 were agreed to be paid by the Council and were the subject of my orders. That case is of considerable assistance in fixing the penalty in the present case.

Conclusion as to penalty 129Undertaking the instinctive synthesis required to determine penalty, I consider that an appropriate penalty to be imposed for the commission of the offence relating to the Toukley Site to be $60,000 to which I would apply a discount of 30 per cent to allow for the subjective and mitigating factors applicable to the Council, including its early plea of guilty. This results in a penalty of $42,000. 130For the offence relating to the Mardi Site the appropriate penalty, seen as an isolated offence, would be $40,000, again discounted by 30 per cent resulting in a net penalty of $28,000. In fixing these penalties, I take account of the fact that the Council has agreed to pay the prosecutor's legal costs in the sum of $70,000 and its investigation costs in the sum of $3,830. 131However, these prospective penalties do not take account of the principle of totality. It is to that principle that I now turn.

Totality principle 132The prosecutor accepts that this case is one in which the principle of totality should be applied. That principle allows that once an appropriate penalty is fixed for each offence, the Court may adjust one of both penalties to achieve an aggregate sum that is "just and appropriate" as reflecting the total criminality of a defendant by reference to the offences charged ( Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority). 133In applying this principle the prosecutor urges that a distinction be drawn between two circumstances in which the principle is applied. One circumstance is said to arise where on the one occasion, the defendant is sentenced for a number of distinct offences. The second circumstance for application of the principle is one involving a single course of conduct having the consequence that the defendant has committed multiple offences. This case is said to be of the former kind. Each offence to which the Council has pleaded guilty is separate and distinct involving different conduct at different times. 134I accept that the distinction drawn by the prosecutor is, in principle, correct. However, it does need to be remembered that, on the facts of this case, the understanding of the Council as to its entitlement to do what it did in respect of each Site had a common foundation, namely the entitlement to operate the Toukley Site as a facility for storage and recycling of materials intended for use in its own civil works. The use of recycled material crushed at the Toukley Site as road base on the Mardi Site indicates the close correlation between use of the two Sites and the single purpose that informed that use. 135In these circumstances, it seems to me that it is "just and appropriate" to reduce the penalty that would otherwise result if the two monetary penalties to which I have earlier referred were aggregated. To the extent to which the penalty reflects the fact that the material at both Sites contained asbestos fragments, "double counting" of this factor is to be avoided. Asbestos contamination initially took place at the Toukley Site and a part of that contaminated material was then transported to the Mardi Site in the form of the crushed concrete road base. Further, the intended beneficial purpose for which the crushed material was brought to and used at the Mardi Site influences my conclusion that, in considering the aggregate penalty to be imposed, the fine otherwise applicable for the offence at the Mardi Site should be reduced. 136In the result, I have concluded that the penalty relating to the Toukley Site should remain at $42,000 but that the penalty in respect of the Mardi Site should be reduced to $20,000, resulting in an aggregate penalty for the two offences of $62,000.

Type of penalty that should be imposed 137The prosecutor submits and the Council accepts that this is a case in which it is appropriate for the Court to make an order under s 250(1)(e) of the POEO Act, coupled with a publication order under s 250(1)(a) in lieu of imposing a fine. The orders that are set out in Pt 8.3 of the POEO Act, which include orders under s 250, may be made by the Court regardless of whether any penalty is imposed or other action taken in relation to the offence (ss 244(2) and (3) of the POEO Act). 138The parties agree that the project for which an order should be made under s 250(1)(e) is the Pioneer Dairy Wetlands (South Tacoma Road Vegetation Corridor and Tuggerah Creek) Bush Regeneration and Weed Removal Project. The Pioneer Dairy Wetlands ( the Wetlands ) are located within the Tuggerah Lakes Reserve ( the Reserve ). Until recently, the Reserve land had been used for dairying which resulted in degradation of the remnant vegetation, streams and wetland areas. It is now Crown Land gazetted for environmental protection and public restoration, with the Reserve being administered by the Tuggerah Lakes Reserve Trust ( the Trust ). The Trust's principle responsibility is to administer the reparation of the Wetlands and waterways. 139The Bush Regeneration and Weed Removal Project is directed to approximately 30 hectares of land, focusing on the South Tacoma Road Vegetation Corridor. The first stage of this project will be to appoint a Bush Regeneration Project Manager and Bush Regeneration and Weed Removal contractor who is to work in conjunction with volunteers as part of the Pioneer Dairy Trust Land Care Group. The second stage will involve weed control and bush regeneration. Once that part of the project has been completed, walking tracks will be created and linked with other facilities in the Trust area. Interpretive signage will be erected to highlight the ecological benefits from the work undertaken. Finally, ongoing maintenance and monitoring will be undertaken by Trust volunteers. The project is estimated to cost approximately $150,000. 140I am satisfied that the Trust, established under the Crown Lands legislation, is an appropriate entity to whom the payment of funds is appropriately directed and that the purpose of the identified project is one that satisfies the requirements of s 250(1)(e) of the POEO Act. 141The parties have agreed on the form of order appropriate to be published pursuant to s 250(1)(a) of the POEO Act. I have considered the form of advertisement proposed and, subject to minor amendments to reflect the orders I make, I am of the opinion that it is appropriate to be published. The parties are also agreed upon the form of disclosure that should be made by the Council when referring to its payment to the Tuggerah Lakes Reserve Trust. I consider that form of disclosure to be appropriate.

Orders 142The orders that I make are as follows: Proceeding 50015 of 2010

1. The defendant is convicted of the offence against s 144(1) of the Protection of the Environment Operations Act 1997 as charged.
2. Pursuant to s 250(1)(e) of the Protection of the Environment Operations Act , the defendant must pay to the Tuggerah Lakes Reserve Trust within 28 days of this order the sum of $20,000 to contribute to the funding of the Pioneer Dairy Wetlands (South Tacoma Road Vegetation Corridor and Tuggerah Creek) Bush Regeneration and Weed Removal Project. Proceeding 50016 of 2010
3. The defendant is convicted of the offence against s 144(1) of the Protection of the Environment Operations Act 1997 as charged.
4. Pursuant to s 250(1)(e) of the Protection of the Environment Operations Act , the defendant must pay to the Tuggerah Lakes Reserve Trust within 28 days of this order the sum of $42,000 to contribute to the funding of the Pioneer Dairy Wetlands (South Tacoma Road Vegetation Corridor and Tuggerah Creek) Bush Regeneration and Weed Removal Project. In respect of both proceedings
5. Pursuant to s 250(1)(a) of the Protection of the Environment Operations Act , within 28 days of this order the defendant must place a notice in the first 12 pages of the general news section of the Sydney Morning Herald and the Central Coast Express Advocate (Wyong edition) newspapers at a minimum size of 8cm x 12cm in the form of Annexure "A".
6. All future references to its payments to the Tuggerah Lakes Reserve Trust towards the Pioneer Dairy Wetlands (South Tacoma Road Vegetation Corridor and Tuggerah Creek) Bush Regeneration and Weed Removal Project must be accompanied by the following passage: "Wyong Shire Council's funding of the Pioneer Dairy Wetlands (South Tacoma Road Vegetation Corridor and Tuggerah Creek) Bush Regeneration and Weed Removal Project is part of a penalty imposed on Wyong Shire Council by the Land and Environment Court after it was convicted of using two different parcels of land at Noraville and Mardi as waste facilities without lawful authority, offences against s 144(1) of the Protection of the Environment Operations Act 1997."
7. Pursuant to s 248(1) of the Protection of the Environment Operations Act , the defendant must pay to the prosecutor its costs and expenses of investigation of the offences, as agreed, in the sum of $3,830 within 28 days of this order.
8. The defendant must pay the prosecutor's legal costs, as agreed, in the sum of $70,000 within 28 days of this order.
9. Exhibits may be returned.

Annexure "A" PROSECUTIONS FOR UNLAWFUL USE OF WASTE FACILITIES On 9 March 2012, the Land and Environment Court of New South Wales found the WYONG SHIRE COUNCIL guilty of two offences against the Protection of the Environment Operations Act 1997, in relation to use of two different parcels of land as waste facilities without lawful authority: from 1 September 2007 to 31 July 2008, land known as the "Toukley Transfer Station", Wilfred Barrett Drive, Noraville, New South Wales. During this period the Council took approximately 44,728 tonnes of waste to the site, some of which included fragments of asbestos cement and fibrous cement from Council road maintenance works. from 1 September 2007 to 30 October 2007, land known as the "Mardi Closed Landfill", McPherson Road, Mardi, New South Wales. Approximately 2,000 tonnes of crushed concrete were applied to access roads at Mardi. The crushed concrete included fragments of crushed asbestos, cement pipes and fibrous cement. This material was sourced from the Toukley Transfer Station. For both sites, Wyong Shire Council was required to hold an environmental protection licence. Wyong Shire Council has cleaned up both sites. WYONG SHIRE COUNCIL was ordered to pay a total penalty of $62,000.00 to fund the Pioneer Dairy Wetlands (South Tacoma Road Vegetation Corridor and Tuggerah Creek) Bush Regeneration and Weed Removal Project. WYONG SHIRE COUNCIL was also ordered to pay the Environment Protection Authority's legal costs totalling $70,000.00 and investigation costs of $3,830.00. WYONG SHIRE COUNCIL was prosecuted by the Environment Protection Authority, now part of the Office of Environment and Heritage. This notice is placed by order of the Land and Environment Court and is paid for by the defendant WYONG SHIRE COUNCIL. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 March 2012