EPA v Waight

[2001] NSWLEC 126

Land and Environment Court (NSW)|2001-07-01|Before: Sheahan J, Mr J

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Court

Land and Environment Court (NSW)

Decision date

2001-07-01

Before

Sheahan J, Mr J

Source

Original judgment source is linked above.

Judgment (519 paragraphs)

[1]

CITATION : EPA v Waight [No 3] [2001] NSWLEC 126 PROSECUTOR PARTIES : Environment Protection Authority DEFENDANT Michael Jeffrey Waight FILE NUMBER(S) : 50019; 50020; 50021; 50022 of 1999 CORAM: Sheahan J KEY ISSUES: Environmental Offences :- Tier 1 - collapse of embankment - negligence - waste - lawful authority - environmental harm - foreseeability - pleas of guilty - aggravation and mitigation - sentencing principles - remediation orders - prosecutor's costs Clean Waters Act 1970 Crimes (Sentencing Procedure) Act 1999 Environmental Planning and Assessment Act 1979 Environmental Offences and Penalties Act 1989 LEGISLATION CITED: Fines Act 1996 Pollution Control Act 1970 Protection of the Environment Operations Act 1997 Waste Minimisation and Management Act 1995 Baulkham Hills LEP 1991 Brown v EPA & Anor (No.2) (1992) 78 LGERA 119; Byron Shire Council v Wain & Anor [1999] NSWLEC 13; Camilleri Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683; Cobic v Liddey (1969) 119 CLR 257; CSR Ltd v EPA [2000] NSWCCA 373; EPA v ADI Pty Ltd [1999] NSWLEC 14; EPA v Ampol Ltd (1993) 81 LGERA 433; EPA v Daracon Engineering Pty Ltd (1998) 97 LGERA 415; EPA v Baiada Poultry Pty Ltd [2000] NSWLEC 249; EPA v Forestry Commission [1998] NSWLEC 318; EPA v Gadiner 50072 and 50074 of 1996; EPA v Gardiner [1997] NSWLEC 169; EPA v N (1992) 26 NSWLR 352; Gilmour v DPP (1995) 134 ALR 631; Hoare v The Queen (1989) 167 CLR 348; Holroyd City Council v Murdoch (1994) 82 LGERA 197; CASES CITED: Ibbs v The Queen (1987) 163 CLR 447; Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132; NSW Sugar Milling Cooperative Ltd v EPA (1992) 59 A.Crim.R6; O'Leary v The King (1946) 73 CLR 566; Pearce v The Queen (1998) 194 CLR 610; Royall v The Queen (1991) 172 CLR 378; R v Boyd [1975] VR 168; R v Boxtel [1994] 2 VR 98; R v De Simoni (1981) 147 CLR 383; R v Gray [1997] VR 225; R v Holder [1983] 3 NSWLR 245; R v Olbrich (1999) 199 CLR 270; R v Storey [1998] 1 VR 359; R v Thompson (2000) 49 NSWLR 383; Shire of Wyong v Shirt (1979) 146 CLR 40; Smith v The Queen (1991) 25 NSWLR 1; Zanol v Newtown (1974) 10 SASR 199; Veen v The Queen (No.2) 164 CLR 465 DATES OF HEARING: 16/10/2000-17/10/2000, 24/10/2000-26/10/2000, 30/10/2000-3/11/2000, 6/11/2000-10/11/2000, 13/11/2000-17/11/2000, 20/11/2000 (Site Inspection], 29/01/2001, 9/02/2001, 12/03/2001 DATE OF JUDGMENT: 06/22/2001

[28]

Particulars of manner (a) Causing or permitting the tipping of waste from trucks on Lot 204, including: (i) into the bushland gully on the property; (ii) in positions where the waste rolled, seeped, leached, or was otherwise introduced into the unnamed tributary of Little Cattai Creek flowing at the base of the bushland gully; and, or in the alternative, (b) Causing or permitting waste tipped from trucks on Lot 204, to be pushed over the crest of the bushland gully, so that it rolled down the gully and in some cases entered the unnamed tributary of Little Cattai Creek. Particulars of harm to the environment (a) Placing or otherwise introducing matter onto Lot 204, in the bushland gully and its surrounds, causing direct and/or indirect alteration of the environment, with the effect of degrading it, including by: (i) smothering and killing vegetation; (ii) modifying and destroying habitat for fauna; (iii) changing the appearance of the bushland gully and its surrounds, namely from a naturally vegetated landscape to a filled landscape; (iv) introducing offensive smells, namely a hydrocarbon smell and an organic composting type odour; and, or in the alternative, (v) causing or facilitating the termination of weed species; (b) Causing the emission into the air of odours, namely a hydrocarbon smell and an organic composting type odour; (c) Placing or otherwise introducing matter into the waters of an unnamed tributary of Little Cattai Creek: (i) so that the physical, the chemical and, or in the alternative, the biological condition of the waters was changed; (ii) so that the physical, the chemical and, or in the alternative, the biological condition of the waters was changed with the effect of degrading the environment; (iii) so that the change in the condition of the waters made or was likely to make the waters unclean, noxious, poisonous or impure, poisonous to aquatic life, or animals in or around the waters; (iv) that was of a prescribed nature, namely inorganic matter, including soil, earth, mud, stones and sand; and, or in the alternative, (v) that was of a prescribed nature, namely scrap metal, glass, junk, plastics, and, or in the alternative, rubbish; (d) Placing or otherwise introducing matter into the waters of an unnamed tributary of Little Cattai Creek causing direct or indirect alteration of the environment, with the effect of degrading it, including by (i) modifying and destroying habitat for fauna; (ii) causing or facilitating the germination of weed species; (iii) changing the appearance of the creek, namely from a natural creek to a creek containing the matter; and, or in the alternative, (iv) introducing offensive odours in the creek, namely the smell of hydrocarbons; (e) Placing or otherwise introducing matter into the surrounds of an unnamed tributary of Little Cattai Creek causing direct or indirect alteration of the environment, with the effect of degrading it, by causing or facilitating the germination of exotic plant species; and, or in the alternative, (f) Placing or otherwise introducing matter into the bushland gully, the unnamed tributary of Little Cattai Creek and/or their surrounds causing direct or indirect alteration to the environment, with the effect of degrading it, by adversely affecting its heritage values. Particulars of matter See particulars of "Waste" above. Particulars of negligence (a) Disposal of the waste without any or any adequate sediment controls; (b) Disposal of the waste particularised in the manner particularised; (c) Disposal of the waste particularised in such a manner (namely the manner particularised) that a reasonable person in the position of the Defendant could have foreseen that it would be likely to harm the environment (in the ways particularised); and, or in the alternative, (d) Disposal of the waste particularised in the manner particularised and, in particular, in a landfill of large size in close proximity to a watercourse, namely the unnamed tributary of Little Cattai Creek.

[30]

Particulars of substance (a) Refuse from building or demolition work, including whole and broken bricks, soil, sand, broken cured concrete, concrete blocks, road base, bitumen, timber, reinforcing steel, glass fragments, leaves, seeds, unformed wood and plastic; and, or in the alternative (b) Garbage, including concrete blocks, steel drums, plastic, polystyrene foam, discarded clothing and beer cans; Particulars of manner A part of the batter of the landfill on Lot 204 collapsed and flowed downhill and downstream into the unnamed tributary of Little Cattai Creek and its surrounds. Particulars of harm to the environment (a) Placing or otherwise introducing matter into the waters of the unnamed tributary of Little Cattai Creek: (i) so that the physical, the chemical and, or in the alternative, the biological condition of the waters was changed; (ii) so that the physical, the chemical and, or in the alternative, the biological condition of the waters was changed with the effect of degrading the environment; (iii) so that the change in the condition of the waters made or was likely to make the waters unclean, noxious, poisonous or impure, poisonous to aquatic life, or animals in or around the waters; (iv) that was of a prescribed nature, namely inorganic matter, including soil, earth, mud, stones and sand; and, or in the alternative, (v) that was of a prescribed nature, namely scrap metal, glass, junk, plastics, and, or in the alternative, rubbish; (b) Placing or otherwise introducing matter into the waters of an unnamed tributary of Little Cattai Creek causing direct or indirect alteration of the environment, with the effect of degrading it, including by: (i) smothering and killing plants; (ii) modifying and destroying habitat for fauna; (iii) creating anoxic conditions; (iv) causing the formation of iron oxide and iron oxide deposits; (v) causing the formation of hydrogen sulphide gas; (vi) causing or facilitating the germination of exotic plant species; and, or in the alternative, (vii) changing the appearance of the creek, namely from a natural creek to a creek containing the matter, and, or in the alternative, (c) Placing or otherwise introducing matter in the surrounds of the unnamed tributary of Little Cattai Creek, causing direct or indirect alteration of the environment, with the effect of degrading it, including by: (i) smothering and killing vegetation; (ii) modifying and destroying habitat for fauna; (iii) changing the appearance of the surrounds, namely from a natural bushland area to an area containing the matter; and, or in the alternative, (iv) causing or facilitating the germination of exotic plant species. Particulars of matter See "Particulars of substance" above. Particulars of negligence (a) construction of unstable batter of the landfill; (b) construction of batter of landfill by loose dumping/end tipping of materials rather than by construction of horizontal layers, from the bottom up; (c) construction of batter of landfill from the substances particularised above rather than materials having an appropriate particle size for each layer; (d) construction of the landfill without any or any adequate filter or transition zones; (e) construction of the landfill without any or any adequate temporary diversion works or spillway; (f) construction of the landfill without any or any adequate stripping of vegetation and loose natural ground beneath the fill; (g) construction of core zone of the landfill from material other than compacted clayey fill; (h) construction of the batter of the landfill so that the slope of the downstream face was greater than 35o; (i) failing to compact or to adequately compact the matter used to construct the batter of the landfill; (j) failing to conduct any or any appropriate compaction tests; (k) carrying out major landfill construction works without the supervision of a geotechnical engineer; and, or in the alternative, (l) construction of the landfill in such a way that a reasonable person in the position of the Defendant could have foreseen that it would be likely to collapse in heavy rain.

[183]

· All vegetation to be stripped from the area to be occupied by the proposed embankment · Access for the construction works would be via an access track down the eastern side of the embankment area (Figure 6). This access track would be located within the embankment footprint and would be built over as the fill level is raised. The access road would be provided with a granular interlocking surface by use of brick rubble and fragmented concrete. · As there are a number of boulders present within the gully area, these would be used to form a boulder wall facing to the rock fill zone and the toe of the embankment. The rock fill toe would also include selected rock fragments, concrete and brick from the fill materials to provide a free draining toe. We note that it is likely that additional imported free draining fill may be required. The boulder facing wall would improve the FOS against surficial instability of the toe. · The drainage blanket would comprise finer free draining material having a typical maximum particle size of 300 millimetres (mm). Suitable recommended materials would include sandstone fragments, brick and concrete rubble. If finer material is adopted, such as a processed demolition spoil having a maximum particle size of say 40mm, then the thickness of this layer could be reduced. · Provision of a geotextile filter over the drainage blanket along the toe of the existing batter to protect it against internal erosion by seepage from within the existing embankment zone. · Fill materials would be used to form the compacted random soil and rubble fill (Zone 3) comprising the downstream shoulder of the embankment. It is anticipated that in the initial stages much of this material would be obtained by reworking the existing dumped fill. During the reworking process the visible majority of unsuitable materials such as organics, timber and oversized materials would be removed. Oversized materials could be separated for use in the drainage blanket at higher elevations or alternatively pushed to the western abutment to provide a scour protection zone down the embankment flank where it joins the natural valley hillside. · Provide an internal drainage layer at about existing crest level to control possible phreatic surface within the finished embankment. It is anticipated that this layer will either be a clean sand (less than 3% finer than 0.075mm) or a free draining aggregate protected by a non-woven geotextile filter fabric. · Use selected clayey fill materials on the upstream face of the raised crest portion, to provide a zone of lower than average permeability. · It is anticipated that a new spillway of similar dimensions to existing would be incorporated at the western abutment. Discharge downslope would occur at the western edge of the embankment necessitating scour protection shown on Figure 6. · Silt fences (similar to existing) would be established below the toe level of the embankment prior to commencement of construction. · During construction it will be necessary for a geotechnical engineer to carry out site inspections as follows:-

to check stripping prior to fill placement;
presence of the drainage blanket and filter materials;
to carry out Insitu Density Tests to confirm that adequate compaction has been achieved;
selection of clayey fill materials for the upstream face zone. · Compaction Tests are to be carried out at not less than 3 tests on every second layer. The compacted layer thickness is not to exceed 300mm ie. three tests per 600mm increase in fill level. · It is envisaged that the final embankment surface would be revegetated. We note that to achieve adequate compaction to the edge of the embankment it would be necessary to over-place fill materials and then trim back once compaction has been carried out. It is envisaged that this would take place in lifts of about 4m to 5m vertical height. After trimming, topsoil type materials and grassing could be carried out. · Install piezometers within the existing profile to monitor long-term phreatic levels within the critical upper portion of the dam (Figure 11). Three piezometers are envisaged on each of two cross-sections. For simplicity, standpipe piezometers are proposed and hence will require progressive installation as fill levels are raised.

[189]

In the second J&K report, dated 28 June 1996, prepared following a meeting between J&K and representatives of BHSC, a number of issues were addressed. Inter alia, J&K were insistent upon maintenance of their technical design requirements in order that they would "be in a position to give the subsequent certifications required". Particular issues dealt with included (Zadeian pp 69-71): (i) " The proposed timing of 12 months for removal of unclean fill and three years for completion of the project is considered reasonable ". (ii) " 'Process Demolition Spoil' … comprises crushed recycled concrete and brick which has been processed by crushing and screening " . (iii) In respect of the drainage blanket, J&K said " If the 40 millimetres (mm) free draining material is used, then the layer thickness can be reduced to 250mm". (iv) " We accept that … our design would be revised as necessary to accommodate conditions exposed by the works. This would generally be achieved by the Site Report [which] … would usually be prepared at the site on completion of the inspection. We would usually rely on the client/contractor to notify us as to when site works are ready for inspection. We propose that a copy of each Site Report be faxed to Council so they are kept informed as to site progress and our involvement ". (v) " We anticipate that the zones shown on our design drawings (Figures 6 and 11) will be progressively constructed as the fill embankment level is raised. Council require all recently dumped fill be reworked to remove unclean fill …. This can be achieved once the rockfill toe is constructed and for safety/stability will necessitate working down from the top of the recent fill. Acceptable material can then be placed directly in the Zone 3 fill ". (vi) " Since there are sandstone boulders within the proposed fill footprint, and the site stripping will require most of them to be removed to provide an appropriate fill placement surface, it would be wasteful not to allow those boulders to be reused in the works. We understand this was the Council's intent ".
The third J&K document annexed to the consent orders was the "proposed sequence of work" letter/report dated 31 July 1996, which was "to be read in conjunction with" the report of 15 April 1996, in particular Figures 6 and 11, and the letter dated 28 June 1996. The following sequence of work was set out (Zadeian pp 73-74):
1. Provide access track down eastern side of embankment to toe. Construct new silt fences across gully beyond toe in accordance with CALM "Urban Erosion and Sediment Control" (Rev.Ed.1992) Figures 3.21 and 3.22 as attached. Council to be notified when installed.
2. Clear all vegetation from embankment footprint area. This extent to be confirmed by survey.
3. Strip boulders from footprint using them to construct Zone 4A Boulder Facing and, if sufficient quantity available, Zone 4 Rubble Toe.
4. Augment rubble toe with available oversize rock, concrete and brick from existing fill, and imported material.
5. Start construction of the Zone 2 Drainage Blanket from rockfill toe to provide area and fill placement.
6. Bench into existing dumped fill and remove unsuitable materials (eg timber, refuse, vegetation etc). Carry out two or three test pits into bench areas to examine underlying fill materials to confirm unsuitable materials are not present below bench area. Council to be notified when test pits are being carried out. If unsuitable materials are found, then further excavation remedial works are to be carried out. For safety this may require excavation from top of the batter.
7. Place and compact fill at base of embankment for Zone 3.
8. Extend Zone 2 as filling progresses in Zone 3.
9. Install monitoring piezometers from temporary access benches or from fill when at required level.
10. Construct Zone 2B Internal Drainage Blanket and Zone 1 Upstream Clay fill as levels rise; leave spillway as existing temporarily.
11. Construct new spillway and infill existing to finalise raising of crest.
12. Progressively revegetate embankment face as levels rise.
13. Timing for completion of works confirmed by M Waight to be 12 months for removal of unclean fill, and a further two years for completion of the project.

[366]

Whereas Buckney opines that consent should probably never have been given for this project, it is not the defendant's "fault" that it was and that it approved a large landfill so close to the creek. However, it is alleged that the defendant did not adhere to the DC in several respects: (a) Technically, the use of pipes as a (temporary?) spillway device was a deviation from the approved specifications, but they were employed on the advice of the expert hydrologist, endorsed by Walker. (b) Technically, the commencement of construction of the zigzag access track across the face of the embankment was a deviation from the specification of a direct access track down the eastern edge of the embankment, but the specified access had too steep a slope and the defendant should not be regarded as criminally culpable for pursuing, albeit without formal approval, a desirable alteration of the project. (c) The zigzag track required some cutting of the hillside outside the approved envelope in order both to construct the track, and to facilitate its use by the vehicles usually employed on such projects. (d) The Council wanted a particular regime of " testpits ", but the supervising geotechnical engineer considered they were unnecessary. (e) A naturally occurring consequence of end-tipping was the spillage of some fill material beyond the bottom of the project's envelope, but even if Waight intended to comply with the " bottom up " strategy, the material had to get to the bottom, and end-tipping was seen as the only way. I am not satisfied from the evidence that there was any alternative, and the defendant now accepts, in any event, that it was negligent of him to continue end-tipping and not actively pursue alternative access arrangements. No expert, and no regulator, made any adverse comment to him about end-tipping until 11 May 1998. (f) The doing of work beyond the designed sides and base of the envelope (T984 and T1322-3) was obviously a necessary occurrence (T1328). Pells' Figure 2 (in Exhibit P26 ) shows the " excesses ". In the case of the base, it was more than the appropriate amount, partly the result of a surveying mistake, but it was necessary to do work there to some extent because sediment control measures required by the consent had to be installed. The construction of the toe in and across the watercourse, and at an angle to the line followed by the crest, instead of parallel to it, is entirely culpable. It was not approved, nor recommended, nor properly explained (T444 L30-50). (g) The failure to compact the fill adequately - there is evidence of some compaction, or compression effect greater than gravity, having been achieved (T1001 L18-25) - is certainly culpable, but the degree of culpability has to be tempered by recognition of the fact that as at the date of the collapse the embankment was " work in progress ". No access to the base had yet been achieved so systematic compaction " from the bottom up" was not yet possible. (h) Pells notes slopes 35 to 41o, c.f. 26.6o ( Exhibit P26 p14 par 7). Having a slope with a lower " factor of safety " than the specified slope of 2:1 is culpable (T1254), but the comments in (g) above, about " works in progress " and access for compaction, etc, are again apposite. (i) The use of concrete pontoons was contrary to specification and less desirable than what was approved, and the failure to comply in that respect is also culpable. Davies acknowledged that they were particularly unsuitable in the watercourse (T997 L50-55). (j) The failure to strip vegetation as required was in breach of the consent, but it was minor and played no role in the causation of environmental harm. That which remained unstripped may have died from the impact of fill, but would have died as a result of removal if the defendant fulfilled the condition. (k) Demolition material was acceptable as fill, but it was entirely foreseeable that it would contain nutrients. Anink's evidence is that the concentration of nutrients did not infringe the ANZECC guidelines. However, the evidence is clear (see video of 16 May 1998 Exhibit P2 ) and, indeed, Waight admitted (T1183 L15-33), that he accepted " small quantities " of putrescible waste, plastics, vegetative matter, steel, household goods, rubber gloves, tyres, drums, etc, but he said he was " pretty rigid about … keeping it out ".