EPA v Fletcher

[2001] NSWLEC 104

Land and Environment Court (NSW)|1995-06-23|Before: Sheahan J, Stein J, Mr J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

1995-06-23

Before

Sheahan J, Stein J, Mr J

Source

Original judgment source is linked above.

Judgment (171 paragraphs)

[1]

CITATION : EPA v Fletcher [2001] NSWLEC 104 PROSECUTOR PARTIES : Environment Protection Authority DEFENDANT Leslie James Fletcher FILE NUMBER(S) : 50016 of 2000 CORAM: Sheahan J KEY ISSUES: Environmental Offences :- land used as a waste facillity without lawful authority - plea of guilty to part of charge Crimes (Sentencing Procedure) Act 1999 Environmental Planning and Assessment Act 1979 Environmental Offences and Penalties Act 1989 LEGISLATION CITED: Local Government Act 1919 Protection of the Environment Operations Act 1997 Waste Minimisation & Management Act 1995 s 64 Waste Minimisation & Management Regulaltion 1996 Hawkesbury City Local Environmental Plan 1989 Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404; Brown v EPA & Anor (1992) 78 LGERA 119; EPA v Daracon Engineering Pty Ltd (1998) 97 LGERA 415; EPA v Orange City Council (Stein J, 50045 of 1995, 23 June 1995); Holroyd City Council v Murdoch (1994) 82 LGERA 197; Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132; CASES CITED: Lizzio & Anor v Ryde Municipal Council (1983) 155 CLR 211; Proudman v Dayman (1994) 67 CLR 536; Regina v Dodsworth (1837) 8 Car.&P.467; R v Minchington (1998) 104 A.Crim.R 502; R v Olbrich (1999) 199 CLR 270; R v Thomson [2000] NSWCCA 309; Surrey County Council v Battersby [1965] 2 QB 194; Taylor v Hornsby Shire Council (1990) 69 LGRA 281 DATES OF HEARING: 18/12/2000-20/12/2000, 9/02/01 DATE OF JUDGMENT: 05/31/2001

[2]

[68]

A DC was granted 7 August 1997, and then issued, with the endorsed date 8 August 1997 (Exhibit P9, fol 11). The DC referred to consent for "Landfill of Existing Dam" and not to excavation. There were 22 conditions, which are, for completeness, now set out in full (emphasis added): 1. Clean filling only to be deposited on the site to fill the existing dam with no putrescible waste, domestic garbage, timber, vegetation, asbestos, cytotoxic or quarantine waste or any substance classified in the Australian Dangerous Goods Code to be deposited on the site. 2. Filling to be delivered, deposited, levelled and compacted only between the hours of 7.30am to 5.00pm Monday to Saturday. 3. All necessary steps to be taken to suppress dust generation during the delivery, depositing, levelling and compacting of the filling, such that no adverse impact occurs to the site and properties surrounding and adjacent to the site. 4. Erosion and sedimentation control devices shall be installed and maintained during all works. Details to be submitted and approved prior to any further filling being undertaken . 5. Noise generated as a result of the development must not exceed more than 5dB(A) above the ambient noise level, when measured at the nearest residential boundary. 6. All filling is to be placed in a maximum of 300mm layers and adequately compacted by track roller or similar. 7. Prior to any further work commencing, a plan is to be submitted for approval showing overland drainage flow paths, the proposed contoured depth of fill plan and the full dimensions of the fill area. 8. On completion of the works, a contour depth of fill plan is to be submitted. 9. The development shall be conducted in such a manner so as not to interfere with the amenity of the neighbourhood in respect of noise, vibration, smell, dust, waste water, waste products or otherwise. 10. The development shall be carried out in accordance with submitted amended plan , except where amended by conditions of this consent. 11. All necessary works being carried out to ensure that flow from adjoining properties is not impeded . 12. No excavated material, including soil, shall be removed from the site. 13. All loaded trucks arriving at the site shall have their payloads suitably covered to prevent spillage from the truck onto the road. 14. Council reserves the right to impose a condition to have a mechanism installed whereby wheels of trucks leaving the site are washed to minimise dust and debris being deposited on roads, however, it shall monitor the operation for 3 (three) months without such a facility to ascertain whether such is required. 15. Payment to Council of a contribution under Section 94 of the Environmental Planning and Assessment Act, 1979, towards the maintenance of roads based on 3 per tonne per kilometre of all material transported to the site. The contribution shall be paid and records of the amount of fill and transported distance to be submitted immediately upon completion of works. 16. The topsoil shall be stripped and stockpiled and used to cover the landfill. 17. The filled area, including batters, shall be grassed to the satisfaction of the Director Environment and Development immediately after filling takes place . 18. All works shall be completed within 12 (twelve) months of the date of this consent. 19. The landfill site shall be secured to prevent the depositing of any unauthorised material. 20. Stockpiles of topsoil, sand, aggregate, spoil or other material capable of being moved by running water to be stored clear of any drainage line, easement, natural watercourse, footpath, kerb or road surface. 21. No burning of demolition or construction material being carried out on the site. 22. The applicant is to submit details by way of dockets showing the origins of all fill material to ensure that fill material is not contaminated . Such dockets are to be submitted monthly .

[123]

Hardiman's expert conclusions (Affidavit 23 June 1999 pars 108-111) were not challenged, and should be quoted in full: 108. In conclusion, surface waters and leachate discharge samples collected showed that the leachate waters discharged from the defendant's Premises contained elevated levels of zinc, ammonia, TKN, FRP, dieldrin, gamma-chlordane and heptachlor epoxide when compared to concentrations of the above parameters in inflow waters to the Premises. The conductivity of the discharge also indicated elevated concentrations of saline materials. 109. The leachate appears to have led to the dominance of salt tolerant vegetation immediately downstream of the Premises and to an elevation of the concentration of ammonia in the downstream dam. 110. Due to ineffective sediment control works and equipment installed on the western perimeter of the Premises, earthworks and runoff from the Premises has caused a significant deposition of material (including building material fragments) on the adjoining premises to the west. This material was observed to have been deposited over the entire distance from the western boundary of the Premises to the downstream dam west of the adjoining premises. In my opinion sediment would also be highly likely (as a matter of course) to have been deposited in that dam thereby reducing its capacity and effective flood retention time. 111. For all the above reasons, I am satisfied that use of the Premises for the depositing of material has: (a) due to the nature of the material deposited, (i) led to changes in the chemical and biological process of material degradation; and (ii) in turn led to the pollution of those waters percolating or draining through the material; and (iii) led to the significant degradation in the quality of waters discharging from the Premises; (b) due to the degradation of the quality of waters discharged from the Premises, led to the development of predominantly salt tolerant vegetation on the portion of the western adjoining premises receiving the discharged waters; and (c) due to the manner of deposition of the material at the Premises, led to the deposition of sediment and other material on the western adjoining premises which, in my opinion is also likely, to have been caused to be deposited further downstream, including the dam.

[124]

Junor's evidence (affidavit 10 August 1999) was likewise unchallenged, and contains the following relevant paragraphs: 16. An embankment approximately 4.0 metres high has been formed by the deposition of fill material along the western boundary of the Premises. This embankment comprises mainly unconsolidated earth materials including shale, clays, sandstone fragments and building demolition materials that I observed included fragments of concrete, asphalt, tiles, aluminium, plastic pipes, carpet and copper cables. 17. This embankment has been sown with a seed mixture to stabilise the soil surface. At the time of inspection a vegetation cover of oats and ryegrass were growing on the embankment. These grasses had not developed sufficient density to prevent erosion occurring. (Photographs B, & C). 18. In an apparent effort to contain the sediment that may erode from this embankment a sediment fence had been installed at the toe of the embankment along the boundary fence. The major section of the sediment fence was observed to be full of sediment. Runoff water now overflows the fence and sediment is being deposited onto the neighbouring property to the west from the Premises. Photographs A, B, C & F show the condition of the sediment fence at the time of the inspection. Some of this sediment fence appears to have been removed from the northern section of the embankment and has been placed on the boundary fence as can be seen in Photograph A. 19. A 1200mm diameter concrete outlet pipe forming the dam spillway is located at a height of 2.0 metres above natural ground level and water discharging through this pipe has caused gully erosion of the embankment (Photographs C & F), Large rocks have been dumped in the gully erosion to reduce this erosion and provide some protection of the embankment. Extensive sedimentation of the natural drainage line has occurred with more than 200mm of sediment being deposited on the western adjoining Premises. (Photograph O). 20. Sediment (sand, silt, clay rock fragments and building demolition fragments including bricks concrete, tiles and packaging materials) have been deposited over the natural drainage plain. This sediment has covered and destroyed the previous vegetation. 21. Seepage through the embankment located on the Premises has caused the local water table to rise to the soil surface on the neighbouring Premises to the west and higher soil salinity levels are evident. Plant species that are more salt tolerant are now becoming the dominant species over this area. Larger grey box trees are showing signs of stress from water logging and higher soil salinity levels. I have read the affidavit of Mr Hardiman, particularly the conclusion in paragraph 108 in relation to elevated levels of saline material in the discharge liquid from the western boundary of the area where the sediment was deposited. I say that this evidence is consistent with the prevalence of salt tolerant vegetation that I observed. 22. Although deep excavation of the filled area was not carried out, analysis of the samples of deposited fill material that I collected show that the sampled material contained elevated levels of organochlorine pesticides. With the exception of sample SS4B which contained slight levels of lindane (possibly representing a prior "agricultural" treatment used at the Premises at the Premises) (sic): · samples SS2, SS3, SS5, SS7 contained elevated levels of dieldrin · samples SS6 contained elevated levels of dieldrin, gamma chlordane, and DDT. 23. I note Mr Hardiman's conclusion in paragraph 108 of this affidavit that leachate fro the Premises also contained elevated levels of dieldrin, gamma chlordane and heptachlor epoxide. I am familiar with the fact that each of these chemicals is prohibited to be used in New South Wales pursuant to the Pesticides Act 1978. I have consulted the document 'History of Approved Uses of Organochlorine Pesticides in New South Wales prepared by The Agricultural and Veterinary Chemicals Sub-program, NSW Agriculture dated 5 November 1996 and note that: · Deildrin has been prohibited for use since 30 September 1991. All urban use of it was prohibited other than for termite control from 1 January 1987. · Gamma Chlordane has been prohibited since 30 June 1995. All urban use of it was prohibited other than for termite control from 1 January 1987. · Heptachlor epoxide continued to be available for use for the protection of new or existing buildings from subterranean termites until 1995. 24. The presence of these chemicals in the leachate and the soils is consistent with my conclusion that these soils are not naturally occurring soils, but are in fact contaminated soils sourced from building sites. These chemicals are extremely resilient in soils and have traditionally been used as pest treatments in soils in and about buildings.

[126]

The submissions made on his behalf, as I understand them, are essentially as follows: (a) Having applied for a search warrant against Mr Fletcher as the occupier of the subject lands, it is wrong in law to then charge him as the owner of those lands. (b) As the five years stipulated in the DC is inconsistent with its twelve months lapsing provision, the consent is legally bad and cannot found any charge. Alternatively, the consent runs for five years from grant. Alternatively, the twelve months limit does not run while the Council's " stop work " notices apply. (c) As " agriculture " is permissible without consent - " horticulture " being caught by the definition - preparation of the subject land for an agricultural purpose, by filling and/or reorienting the dam, does not require DC. Alternatively, the consent granted is bad in law because it should not have been granted in view of the " environmental sensitivity " of the land. Alternatively, the Council wrongly determined that fact, and Fletcher is entitled to believe his property is/was not in an " environmentally sensitive area ". (d) Because of Council's incorrect advice to Fletcher, and its failure to more closely supervise his activities, in accordance with its own guidelines, the Prosecutor cannot sustain the " without lawful authority " point regarding the DC. Alternatively, as DC is not required, and/or is bad in law, Fletcher cannot be charged with breach of its conditions (T167 L39-44). (e) The Prosecutor's interpretation of clause 5(1)(j) of the Regulation is illogical in that it means that " if you receive no more than 20,000 tonnes per year of coal waste and you are not within 250 metres, well then you are not allowed to do it . But if you are within the 250 metres you are allowed to do it" (T168 L30-38). (f) Evidence of witnesses Veldman, Playford, Ritchie, Muir and Johnstone has been shown to be unreliable, and/or inconsistent, and should be disregarded (pars 44 to 80 of submissions), as should the video evidence, which was calculated to show Fletcher's land in the worst light (T176 L19-30). (g) Collection of money by Fletcher, for the dumping on his land of fill material, is not in breach of the law, as the Council intended him to pay a levy per tonne of fill delivered, and he should be able to recoup it. (h) On environmental harm, the Defendant should not be judged on video evidence of his unfinished project. The drums, tin and other rubbish pertained to Mr Fletcher's business, and whatever else appeared on the site had both Council approval, and " implied consent from the EPA as from February 1998 ", because Playford initiated no EPA action against Fletcher. The property below Fletcher's dam collects runoff from all the higher ground, including the market garden, and not just Fletcher's land, as conceded by Hardiman. In such a rural area some build-up of agricultural chemicals could be expected as Fletcher's land is a natural destination for runoff. (i) Honest and mistaken belief of fact (submissions par 103 - citing Proudman v Dayman (1994) 67 CLR 536). Mr Simpson accepts that ignorance of the law is no defence, but he claims that the Defendant relied on Council's failure to take action, and on the impression allegedly conveyed by a senior and " competent " (T179 L26) EPA officer, Playford, as at 2 March 1998, that a Waste Act licence was not required, and that his operations, therefore, continued " with the approval of the EPA " (T179 l34-5 and T180 L8-15).