Eurobodalla Shire Council v Leth [2007] NSWLEC 599 | Case summary

EX TEMPORE JUDGMENT 1 HIS HONOUR: The defendant, Mr Mike Leth, has pleaded guilty to an offence against s 144(1) of the Protection of the Environment Operations Act 1997 ("the POEO Act") in that from about August 2003 and continuing to about February 2004, being an owner of land which could not lawfully be used as a waste facility he did permit that land to be used as a waste facility. The land in question is known as No. 607 Tomakin Road, Tomakin, being within the local government area of Eurobodalla, and comprising lot 17 in deposited plan 837412 and lot 180 in deposited plan 868764 ("the land"). 2 The parties have conveniently agreed on a statement of facts and that statement has been supplemented by one affidavit of the defendant and some other documentary material. The facts are within a relatively small compass. The defendant is the owner of a property adjoining the land known as Tomakin River Tourist Resort on which he operates a caravan park. It seems that the defendant also operates another caravan park within the area. 3 The waste that was deposited comprised mainly demolition waste, vegetation, rubble, timber, plasterboard, steel, plastics, cardboard, waste packaging, glass and other like material. The land was used for the storage, sorting and/or disposal of the waste. The defendant consented and gave permission for the land to be so used. The land could not lawfully be used as a waste facility in the absence of a development consent under the Environmental Planning and Assessment Act 1979 ("the EP&A Act") and no such consent had been obtained or was in force. 4 The statement of agreed facts goes on to disclose that on 17 December 2003, an environmental health officer employed by the prosecutor inspected the land and observed an area measuring about twenty-five metres by ten metres which had been levelled and upon which there was a quantity of waste material piled in various locations on that area. The inspection also disclosed another part of land upon which waste had been deposited. In the second area there were several loads of soil and demolition waste placed in piles. 5 The prosecutor wrote to the defendant on 13 January 2004. On 17 January 2004 in reply the defendant said that he was unaware that consent was required for what he was doing. The defendant's letter states that the first area was being used as a storage area for waste bins and sorting of recyclable materials, and no waste was being left on the site permanently. The second area of the land was being filled to replace previously excavated material which had been removed some years ago. 6 On 8 March 2004, an officer of the prosecutor attended the land and saw that the waste material he had previously observed had been removed, and since the removal of that waste there was no ongoing environmental harm caused by the commission of the offence. 7 The defendant has furnished an affidavit in which he sets out his personal circumstances. He says that the material deposited on his land was at no stage intended to be permanently left there. It was deposited so that it could be sorted into appropriate or relevant bins prior to being taken to the tip and it was done as a favour for a friend. He received no money in relation to the depositing of the waste material on the land. He again states that he was unaware that a development consent was required and shortly after the matter was investigated by the prosecutor he arranged to have the land cleared of all the waste. This was done by 28 February 2004. The defendant says, and it appears to be undisputed, that no ongoing environmental harm has been caused as a result of what occurred. 8 In considering the question of penalty s 241 of the POEO Act sets out the matters that must be taken into consideration. 9 The first consideration is the extent of the harm caused or likely to be caused to the environment by the commission of the offence. I accept that all the defendant did was make his land available to a friend, that he did not earn any money out of what he did and that there is no ongoing environmental harm. There was however clearly potential for environmental harm, particularly if the waste had been left there for some time. 10 The next consideration is the practical measures that may be taken to prevent, control, abate or mitigate that harm. No measures were in place at the time the waste was placed there. The land was levelled and waste placed upon it, but the defendant has wholly mitigated any potential harm by removing the material from the land, as I have noted above, by 28 February 2004. 11 The next consideration is 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. In the present case the materials that were deposited contained no hazardous substances, were mainly building demolition waste, and the defendant foresaw no environmental harm. I accept that this was the case. 12 The next consideration is the extent to which the person who committed the offence had control over the causes that gave rise to the offence. In this case the defendant had complete control, since he was the owner of the land and permitted it to be used for that purpose. 13 The final consideration under s 241 of the POEO Act is whether in committing the offence the person was complying with orders from an employer or supervising employee. That consideration is not relevant in the present case. 14 Section 241 also provides that the Court may take into consideration other matters that it considers relevant. 15 The primary consideration in sentencing is the objective gravity or seriousness of the offence. An indication of the objective gravity or seriousness of the offence is the maximum penalty fixed by the legislature, which at the time was $120,000 for an individual. 16 The next consideration is the question of deterrence. I accept that there is no need for specific deterrence in the present case. There is, however, a need for general deterrence. As submitted by the prosecutor, the depositing of waste such as this frequently occurs on rural land and general deterrence is a major consideration in the imposition of the penalties for environmental offences: Axer Pty Limited v Environment Protection Authority (1993) 113 LGERA 357 at 359 and Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 701. A penalty for a breach must be sufficient to compel attention to the environmental issues and to ensure that others are encouraged to comply with the law and the environment is not exposed to a risk of harm. 17 This is, of course, a strict liability offence. I accept, however, that for strict liability offences care must be taken to ensure that the penalty imposed does not cause the offender to shoulder an unfair burden of community education: see Walden v Hensler (1987) 163 CLR 561 at 570. 18 The principle of even-handedness requires the Court to consider any pattern of sentencing for the particular offence, in order to pursue a consistent approach in the imposition of penalties. The court imposed a fine of $1,500 on a co-offender, namely Tip It Today Broulee Pty Ltd, for one incident of tipping on one day during the offence period. The Court also ordered that offender to pay the prosecutor's costs of $18,500 together with a publication order: Eurobodalla Shire Council v Tip It Today Broulee Pty Ltd [2007] NSWLEC 274. In the present case the offence occurred over a period of some six months and it may therefore be seen to be somewhat more serious. 19 In applying the principle of even-handedness I am aware of the judgment of this court in Environment Protection Authority v Robinson [2004] NSWLEC 629, where building waste and demolition waste had been deposited on some rural land. In that case the defendant was fined an amount of $8,000 after pleading guilty. I accept that the potential for environmental harm was more serious in that case, and in particular the waste had not been removed from the land but remained on the land and there remained a potential for environmental harm. 20 In the present case I accept that the objective gravity and harm is at the low end of the scale. The waste was deposited not for the purpose of remaining there indefinitely but was deposited so that it could be sorted into an appropriate manner before going to the tip. I accept, however, that there was one part of the land where the waste was deposited in the nature of fill. 21 There are a number of subjective circumstances that must be taken into consideration. In this respect, I have had regard to the affidavit of the defendant and to the documentary evidence furnished on his behalf. He is, as appears from the references that have been tendered, a person of good reputation in the area and I accept that this offence is totally out of character. 22 The defendant, as I have noted, operates together with his family two caravan parks at Tomakin in New South Wales. Both businesses are heavily mortgaged and the evidence establishes that he is indebted to the National Australia Bank for almost $2 million. He and his wife both work in the business and they each, according to their latest tax returns, earned a taxable income of $17,898, giving them a combined income for the last tax year of $35,796. 23 The defendant is forty-four years old, married, with four children. He has expressed remorse for what he has done. He has fully complied with the authorities. He employs his four children aged between 25 and 17 and two additional apprentice carpenters in the two businesses that he and his wife operate. 24 Section 6 of the Fines Act 1996 requires the Court to take into consideration the defendant's ability to pay the fine and in this respect I note that he has agreed to pay the prosecutor's costs of $24,000, which include investigation costs. That is a factor that I am required and able to take into account in fixing the amount of fine under the Fines Act. 25 As I have said, the offence occurred over a period of six months. It is, I think, more serious than the one for which Tip It Today Broulee Pty Ltd was fined. In my opinion an appropriate penalty is in the order of $5,000, but I am prepared to discount it to $2,500 in view of the mitigating factors to which I have referred. 26 The formal order of the court therefore is:

Eurobodalla Shire Council v Leth

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Judgment (13 paragraphs)

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