Hurstville City Council v Romanous Construction Pty Ltd; Hurstville City Council v Romanous Contractors Pty Ltd

Land and Environment Court (NSW)|2016-02-16|Before: Pain J

51018 of 2014 S Duggan SC and M Seymour (Prosecutor) C R Ireland (Defendant)

SOLICITORS: 51003 of 2014 HWL Ebsworth (Prosecutor) Cordato Partners (Defendant)

Judgment ON SENTENCEs

Romanous Contractors Pty Ltd ("Contractors") pleaded guilty to the charge following amendment to the particulars of charge on 26 October 2015 in proceedings 51018/14 that it did between 13 January 2010 and 21 December 2011 pollute land in Roberts Avenue, Mortdale contrary to s 142A(1) of the Protection of the Environment Operations Act 1997 (NSW) ("POEO Act"). The particulars to the charge state that fill containing elements of bonded asbestos was placed on those parts of the land comprising the bed and western bank of the watercourse on the land, together with all parts of that land lying west of that bank.
Romanous Construction Pty Ltd ("Construction") pleaded guilty to the charge 51003/14 following amendment to the particulars of charge on 26 October 2015 that it did between 14 May 2012 and 9 October 2013 pollute land in Roberts Avenue, Mortdale contrary to s 142A(1) of the POEO Act. The particulars to the charge state that fill containing elements of bonded asbestos was placed on those parts of the land comprising the bed and eastern bank of the watercourse on the land together with all parts of the land lying east of that bank (but excluding all parts of the land within the footprint of the commercial building on it). The pleas of guilty mean that the Defendants have admitted the essential elements of the offences.
Section 142A provides as follows: 142A Pollution of land (1) A person who pollutes land is guilty of an offence. Maximum penalty: (a) in the case of a corporation-$1,000,000, and in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, … (2) In this section: "pollute land" includes cause or permit any land to be polluted.
"Land pollution" or "pollution of land" is defined in the Dictionary to the POEO Act as: placing in or on, or otherwise introducing into or onto, the land (whether through an act or omission) any matter, whether solid, liquid or gaseous: (a) that causes or is likely to cause degradation of the land, resulting in actual or potential harm to the health or safety of human beings, animals … that is not trivial,…"
It is necessary to sentence the Defendants. The offences are tier 2 offences within the POEO Act framework. They are strict liability offences. The two offences concern the same land and broadly similar activity of filling different parts of that land by the two separate Defendants. An order that both sentencing matters be heard together was made.
In sentencing for the offence, the Court is to consider the objective and subjective circumstances of the offence and the offender. The Court is required to take into consideration the aggravating, mitigating and other factors in s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("CSP Act"), the matters in s 241(1) of the POEO Act and the purposes of sentencing. The purpose for which a sentence is to be imposed is reflected in s 3A of the CSP Act, which states: 3A Purposes of sentencing The purposes for which a court may impose a sentence on a defender are as follows: (a) to ensure that the defender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.
An appropriate sentence is to be determined mindful that: ...a basic principle of sentencing law is that a sentence...imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances (see Veen v. The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465, at pp 472, 485-486, 490-491, 496). per Hoare v R [1989] HCA 33; (1989) 167 CLR 348 at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ).
Section 241 of the POEO Act specifies matters which must be taken into account when sentencing for offences under that Act as follows: 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. (2) The court may take into consideration other matters that it considers relevant.

Maximum penalty

The maximum penalty that may be imposed for these offences is $1,000,000. That penalty reflects the public expression by Parliament of the seriousness with which the commission of the offence is to be considered: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 per Kirby P at 698.

Statement of Agreed Facts

The parties agreed on a Statement of Agreed Facts ("SOAF") for both matters which stated as follows: The Land 2. These proceedings relate to Lot 21 DP 542051 known as 84D Roberts Avenue, Mortdale ("Land"). The Land contains a stormwater drain ("Watercourse") running through the Land dividing the eastern portion from the western portion. The Watercourse leaves a covered stormwater drain as it enters the Land; it enters a covered stormwater drain as it leaves the Land. 3. Romanous Developments Pty Ltd is the registered proprietor of the Land. 4. At all material times Construction was in occupation of the Land for the purposes of its development. 5. In 2003, prior to the Defendants' involvement with the Land, the eastern portion of the Land held a Telstra utility site with buildings on it, and the western portion was unused and mainly bushland. The Development Consents 6. On 15 December 2009 the Prosecutor granted Construction development consent 08/DA411 for construction of a 3 storey mixed use development, comprising supermarket, bulky goods retail, gymnasium and office with basement parking on the Land ("Building Consent"). 7. On 24 December 2009, the Prosecutor granted development consent 08/DA-403 for the demolition of existing buildings and remediation of the Land ("Remediation Consent"). Summons 51018/2014 8. Between 13 January 2010 and 21 December 2011, during the implementation of the Building Consent and the Remediation Consent, the western portion of the Land on the western side of the Watercourse was filled with material taken from the eastern portion of the Land, and a top layer of road base, to create a working platform. No fill was obtained from external sources outside the site. 9. This fill included materials containing bonded asbestos. 10. Material suspected to contain asbestos and which was subsequently shown to contain asbestos was evident to Paul Anthony Gorman [scientist] and Michael Alexander [council officer] on walking over the Land in February 2014. 11. The areas of the Land affected by the above filling were the creek (including construction of a bridge over the northern pipeline), western embankment and western portion. 12. The filling of the western portion of the Land first came to the attention of an authorised officer of the Prosecutor on or about 19 February 2013. In May 2014, following investigations by Council, 1.8 tonnes of waste (including a much smaller amount of asbestos waste or debris) was disposed of by the Defendants at SITA, Elizabeth Drive, an EPA licensed facility. Actual or Likely Harm 13. The material placed on the western portion of the Land caused or was likely to cause degradation of those parts of the Land resulting in actual or potential harm to the health or safety of human beings that is not trivial and was not excluded from the definition of land pollution or pollution of the Land by the regulations under the Protection of the Environment Operations Act 1997. 14. Following initial investigations by Council, the Defendants commissioned Aargus to provide a plan for remediation of the Land ("Aargus 2014 Report"). 15. The Aargus 2014 Report identified that within the investigated areas on the Land, the risks to human health and the environment associated with Heavy Metal; Total Petroleum Hydrocarbons; Benzene, [Toluene], Ethyl Benzene and Xylene; Polycyclic Aromatic Hydrocarbons; Oganochlorine Pesticides; Polychlorinated Biphenyl; Phenols; Cyanide; and Asbestos were "medium" in the context of the use of the site for commercial purposes. 16. The Aargus 2014 Report separated the Land into four segments: • Area A: northern rock wall and easements area; • Area B: eastern embankment; • Area C: western flat land; • Area D: south east corridor and easement area. 17. The fill the subject of this charge relates to Areas C and, to the extent that Area A extends to land "comprising the bed and western bank of the watercourse on the Land", Area A. 18. The Aargus 2014 Report was prepared following a targeted site investigation. As part of that investigation: (a) Fifteen locations were sampled within Area A; and (b) Four locations were sampled within Area C. 19. Asbestos concentrations exceeding guideline levels were detected in 25 locations within Area A and in two locations in Area C in a range of depths. The two locations in Area C and five of the detected samples from Area A are shown in the Aargus 2014 Report worksheets for 10 September 2014. 20. The potential of the material that was placed on the western portion of the Land is also described in the Prosecutor's affidavit of Paul Anthony Gorman date 20 March 2015 ("Gorman Report"). 21. The western portion of the site was primarily open and relatively level as a result of the filling having been carried out to form a working platform. Testing has revealed that the work had left only relatively shallow fill comprising predominantly sand and sandstone gravel and rubble with minor inclusions of concrete, broken asphalt and brick pieces. The fill was covered in a thin layer of blue metal (Gorman Report page 3 of 14). 22. The Gorman Report confirms that asbestos only poses a risk to human health when asbestos fibres are made airborne and inhaled. If asbestos is bound in a matrix such as cement or resin, it is not readily made airborne except through substantial physical damage. Bonded ACM in sand condition represents a low human health risk provided the Land is well managed (page 12, Gorman Report). 23. The ACM found during site inspections and walk-overs by Mr Gorman in January and February 2014 are in a bonded form and therefore are not considered to present a significant health risk unless left in an environment where erosion and disturbance can occur over time (such as if there are intermittent creek flows in the Watercourse). 24. Mr Gorman concluded (at page 14 of 14): That the fill placed at the site prior to any asbestos management or remediation caused or is likely to cause degradation of the site resulting in actual or potential risks to humans which are not trivial. The risks relate to the presence of asbestos at the surface (highest risk) and at a depth in the fill profile in the asbestos being in fibrous form in numerous locations. 25. Pure Contracting Pty Ltd was appointed to undertake initial asbestos removal work within the surface soils between 14 May and 15 May 2014, and an Asbestos Clearance Certificate was issued and areas as nominated in the Asbestos Clearance Certificate were capped with Geofabric. 26. A weekly visual inspection is intended to be conducted by a competent NSW WorkCover approved Asbestos Assessor of the condition of the Geofabric (Aargus 2014 Report, page 13). 27. The western portion of the Land has been remediated and cleared of all visible signs of ACM by Contractors and managed, mainly in areas directly adjacent and on a lower bank of the watercourse, by the installation of impermeable Geo Fabric. 28. The filling of the western portion of the Land was supervised by John Allen Romanous, the sole director of Contractors. John Allen Romanous holds an asbestos licence. John Allen Romanous was responsible for directing employees and contractors regarding the sorting and placement of the fill and supervising those works. Such works were carried out before Aargus provided a validation certificate in November 2011. Summons 51003/2014 29. Between 14 May 2012 and 9 October 2013 excavation works were carried out, including the placement of material, which had been excavated from other parts of the Land, on the bed and eastern bank of a watercourse on the Land. The eastern portion of the land, between the building the subject of the Building Consent and the Watercourse, when filled, formed a relatively steep embankment. The fill, where exposed, comprised predominantly sand and sandstone gravels and cobbles, with variable inclusions of concrete in both size and quantity, broken asphalt, brick pieces, timber and metals. Geofabric (weed mat) had been placed and secured across the majority of the embankment, and plants (appearing to be mainly weeds) were establishing in parts of this cover. Fill was exposed at the surface for the length of the area adjacent to the southern boundary, between the main site access and the watercourse, a distance of about 50 m. The fill here also comprised predominantly sand and sandstone gravels and cobbles with variable concrete, broken asphalt, brick pieces, timber and metals (Gorman Report page 3 of 14). 30. No fill was obtained from external sources outside the site. The fill placed on the bed and eastern bank of the watercourse contained elements of bonded asbestos. 31. Material suspected to contain asbestos and which was subsequently shown to contain asbestos was evident to Paul Anthony Gorman and Michael Alexander on walking over the Land in February 2014. 32. The areas of the Land affected by the above filling were the creek (including augmentation of a bridge across the northern pipeline), stone embankment (including fill placed over the north-eastern easement and pipeline) and eastern embankment indicated approximately on the drawing at Annexure B. 33. On 9 October 2013 Construction received a Direction to Take Preventative Action under s 91 of the POEO Act from the Council ("Direction"). 33A. Construction has between 2005 and 2006 been issued penalty notices for the following offences: (a) Development not carried out in accordance with consent (x5); (b) Pollute waters (x4); (c) Expose article in/on/over road/let article be exposed at road without approval (x2); (d) Place thing on road likely restrict/endanger road use (x1). Actual or Likely Harm 34. The fill was likely to cause degradation of the Land, resulting in potential harm to the health and safety of human beings that is not trivial and was not excluded from the definition of land pollution or pollution of the Land by the regulations under the Protection of the Environment Operations Act 1997. 35. The Aargus 2014 Report took samples from four locations within Area B. Six samples were found to have levels exceeding the guidelines for AF/FA materials. Sample locations are shown in the worksheet for 8 September 2014. Based on the sample results the Aargus 2014 Report concluded that the eastern portion of the site was suitable for its current commercial land use if contaminants were managed. Any potential redevelopment into another commercial land use would need to be subject to a further appropriate remedial/management strategy, culminating in the preparation of an RAP in regards removal of the contaminated soil from the site and the classification of any soils requiring removal in accordance with the EPA's Waste Classification Guidelines. 36. The Gorman Report confirms that asbestos only poses a risk to human health when asbestos fibres are made airborne and inhaled. If asbestos is bound in a matrix such as cement or resin, it is not readily made airborne except through substantial physical damage. Bonded ACM in sand condition represents a low human health risk provided the Land is well managed (page 12, Gorman Report). 37. The ACM found during site inspections and walk-overs by Mr Gorman in January and February 2014 are in a bonded form and therefore are not considered to present a significant health risk unless left in an environment where erosion and disturbance can occur over time (such as if there are intermittent creek flows in the Watercourse). 38. Mr Gorman concluded (at page 14 of 14): That the fill placed at the site prior to any asbestos management or remediation caused or is likely to cause degradation of the site resulting in actual or potential risks to humans which are not trivial. The risks relate to the presence of asbestos at the surface (highest risk) and at a depth in the fill profile in the asbestos being in fibrous form in numerous locations. 39. Construction has been and is remediating the contamination in accordance with Court orders made by consent in Class 4 proceedings. At present the Land is in approximately the state shown in the aerial photograph at. 40. Pure Contracting Pty Ltd was appointed to undertake initial asbestos removal work within the surface soils between 14 May and 15 May 2014, and an Asbestos Clearance Certificate was issued and areas as nominated in the Asbestos Clearance Certificate were capped with Geofabric. 41. A weekly visual inspection is intended to be conducted by a competent NSW WorkCover approved asbestos assessor of the condition of the Geofabric (Aargus 2014 Report, page 13). 42. The western portion of the Land has been remediated and cleared of all visible signs of ACM by [Construction] and managed, mainly in areas directly adjacent and on a lower bank of the watercourse, by the installation of impermeable GeoFabric. Control 43. Construction was in control of the Land as the primary occupier. Guilty Pleas 44. Entry of a plea of guilty avoided a hearing of preliminary legal questions under s 247G of the Criminal Procedure Act 1986. That hearing would have been complex and taken up significant judicial resources and party costs and not resulted in the finalisation of the remaining proceedings in the time frame now achieved. If all original charges had gone to trial, a three week hearing would have been required. There has been utility in the pleas of guilty.

Affidavit of Allen Romanous sworn 3 February 2016 (Contractors - 14/51018)

Allen Romanous is the sole director and manager of the Defendant, Contractors. Construction was the occupier of the site at all relevant times. Contractors was the principal building contractor in relation to the site. The project commenced in June 2012 and was completed on 15 October 2013.

Circumstances of the offence

In or around September 2011, Contractors disposed properly of approximately 50 tonnes of asbestos obtained from the eastern portion of the site. In May 2014 Contractors disposed of 1.8 tonnes of waste obtained from the western portion of the site. In Allen Romanous' estimation, approximately one kilogram of that material was asbestos waste.
Allen Romanous believed that the work he authorised was closely related to the work authorised by the development consents and would cause no harm. Allen Romanous turned his mind to whether there was asbestos in the fill placed on the western portion. He believed that the work was likely to improve the environmental state of the western portion of the site. Allen Romanous holds an asbestos licence and formed the professional opinion that the fill contained either none or trivial amounts of asbestos containing material in bonded condition that represented a low human health risk.

Contrition and remorse

Allen Romanous regrets carrying out the unauthorised work and not following the planning approvals process. Contractors takes full responsibility for the work the subject of the offence. Allen Romanous accepts full responsibility on behalf of Contractors, and did so at a site meeting with Council officers in April 2013. The offence has been embarrassing to him and Contractors' employees as well as family members and employees of the owner of the land.

Efforts to ameliorate harm caused and prevent future incidents

Contractors took measures to minimise any environmental harm that may have been caused after being made aware of the offence by the Council by: 1. commissioning the Aargus Asbestos Management Plan dated 2 May 2014; 2. instructing Construction to engage Pure Contracting Pty Ltd to remove asbestos contaminated soil; and 3. installing Geofabric across the majority of the embankment that had been issued with an Asbestos Clearance Certificate.
Since the offence Contractors has concentrated its efforts on establishing processes and protocols that further minimise the risk of future environmental incidents and maximise environmental performance.

Prior conduct of the Defendant

This is Contractors' first conviction for any offence.

Cooperation with the Council

Allen Romanous has made a concerted effort to cooperate at all times with the Council in relation to its investigations, its response to the offence and in relation to these proceedings. Contractors has provided material assistance to the Prosecutor over a long period of time. Contractors has agreed to pay the Prosecutor's costs of these proceedings.

Affidavit of Anthony Romanous sworn 12 February 2016 (Construction - 14/51003)

Anthony Romanous is the director of Construction. Construction was the occupier of the site the subject of these proceedings and was the applicant for development consent 08/DA-411 for the construction of commercial and retail premises on the site.

Circumstances of the offence

The material placed on the eastern bank comprised of rock and fill to form a stacked rock face and Anthony Romanous believed it enhanced the stability of the land and the aesthetics of the natural environment. Anthony Romanous thought that the Council would be impressed by the works, and he was proud of the works completed. Anthony Romanous did not realise that there was asbestos in the fill used and believed that the material was clean and not contaminated. Anthony Romanous thought that the placement of the material was a reasonable incident of implementing the building consent and would cause no harm.

Contrition and remorse

Anthony Romanous regrets carrying out the filling of the eastern portion of the site, and is remorseful for the actions of the company under his control.

Efforts to ameliorate harm caused and prevent future incidents

Anthony Romanous now understands the importance of the environmental approval process to ensure proper assessment of such activities. Anthony Romanous is now aware of Construction's environmental responsibilities in relation to land filling, and has made his employees and other persons under his direction aware of those responsibilities to ensure that such actions are not repeated.
In December 2014 Construction modified its organisational structure, extending the role of the site manager to include ensuring that employees and contractors are provided with training with respect to environmental risks. Construction also updated its Safe Work Method Statement Review checklist to include activities that are likely to pose a risk to the environment. Also in December 2014 Construction modified its Site Induction Handbook to include a section addressing potential risks to the environment. In June 2015 Construction's Civil Works subcontract template was modified to include a penalty system whereby the contractor and its employees are fined for breaching environmental related provisions in the subcontract. Until the remediation is complete, weekly site inspections are being carried out by Aargus Pty Ltd to ensure remedial works remain effective.
Construction employs an accredited Greenstar professional and sends its staff to Green Building Council of Australia information nights and seminars.

Prior conduct of the Defendant

Construction has carried out three projects of similar size or larger to the project the subject of the proceedings with no convictions for environmental offences.
Construction was issued with a number of penalty notices in respect of a previous project with the infringements relating to incidents such as tracking of sediment onto a roadway, spilling of dirt on a road, cement slurry marks left in the road gutter, and concrete with steel hooks left on the road.

Cooperation with the Council

On commencement of the proceedings, Anthony Romanous instructed his solicitors to seek the best environmental outcome and attempt to agree with the Council appropriate remediation measures.

Consideration of summons 51018/2014 - Contractors (western portion)

Objective seriousness of the offence, POEO Act s 241(1)

I will first consider matters relevant to identifying the objective seriousness of this offence concerning the western flat land.

Extent of harm or likely harm caused to the environment by the commission of the offence, s 241(1)(a)

Based on pars 16-22 of the SOAF the Prosecutor submitted that asbestos concentrations on the western flat land exceeding guideline levels were detected in 25 locations within Area A and in two locations in Area C, both at a range of depths. The potential of the material that was placed on the western portion of the land to cause harm is described in the affidavit of Paul Anthony Gorman dated 20 March 2015 ("Gorman Report"). The Gorman Report identified asbestos containing material ("ACM"), asbestos fibres ("AF") and fibrous asbestos ("FA") materials at the surface and at depth in the fill. This is consistent with the Aargus 2014 Report.
On p 12 of his report Mr Gorman provides definitions of various types of asbestos. Bonded ACM: Asbestos containing material which is in sound condition, bound in a matrix of cement or resin, and cannot pass a 7 mm x 7 mm sieve. FA: Fibrous asbestos material including severely weathered cement sheet, insulation products and woven asbestos material. This material is typically unbonded or was previously bonded and is now significantly degraded and crumbling. AF: Asbestos fines including free fibres, small fibre bundles and also small fragments of bonded ACM that pass through a 7 mm x 7 mm sieve.
The Gorman Report identified that this material, particularly ACM, FA and AF could become exposed to potential receptors both on-site and off-site if washed down the watercourse bisecting the land. Further, the intended and actual use of the platform for vehicular access meant that the bonded asbestos at the surface of the land could degrade raising the potential for harm. While there is no evidence of particular harm to any person arising from the land pollution, there was the potential for harm of a significant degree.
Contractors submitted that this offence involved the rearrangement of fill from one side of a degraded industrial block of land to another. The western land was vacant and used historically as a rubbish dump. As Allen Romanous attested to in his affidavit, a substantial amount of junk (1.8 tonnes) was removed from the western part of the land in May 2014 with only 1 kg estimated by him to be asbestos waste. Asbestos was detected in the Aargus 2014 Report in the western portion of the land (Area C) in only two locations with exceedance of the fibrous asbestos/asbestos fines guidelines of 0.001% w/w at 0.004% and 0.016% respectively. Five test pits were dug on the western portion of the land, described in the Gorman Report at p 10, with suspected ACM identified at various depths in test pits ("TP") 2, 3, 5 and 7. Bonded ACM in sound condition represents a low human health risk provided the land is well managed. While low the risk is not trivial hence the present charge and plea.
As Contractors submitted, the Prosecutor did not correctly apply the definition of land pollution in the Dictionary to the POEO Act in all of its submissions on the extent of environmental harm. The Prosecutor submitted the land was not fit for any other use because of land degradation. Land pollution is defined in the Dictionary as the placing on land of any matter that causes or is likely to cause degradation of the land resulting in actual or potential harm to the health or safety of human beings that is not trivial. The Prosecutor's reliance on land degradation generally is not supported by the definition in the POEO Act which focusses on human health and safety.
The Prosecutor must establish beyond reasonable doubt matters adverse to the Defendant per R v Olbrich [1999] HCA 54; (1999) 199 CLR 270, namely that bonded asbestos was widespread across the western flat land. As Contractors' counsel submitted, in the Gorman Report the amount of asbestos actually detected on the western flat land was very limited and established only that there were limited hotspot locations. Mr Gorman concluded in his report that the fill caused or was likely to cause degradation of the site resulting in actual or potential risks to humans which are not trivial (at p 14).
The parties place different emphasis on the Aargus test results identified on page 9 of the Gorman Report. Twelve guideline exceedances in Area A, four in Area B, two in Area C and three in Area D are identified by Aargus. The admitted facts in the SOAF are that the Aargus 2014 Report identifies that of four locations in the western flat land in Area C two contained samples with asbestos concentrations exceeding guideline levels. Several more samples in Area A which extends along the northern border of the western and eastern portions were identified as having asbestos in excess of guideline concentrations. One hotspot identified in Area A is located within the western flat land. The Gorman Report is attached to the SOAF (Annexure H) and sets out in detail the Aargus 2014 Report tests. Mr Gorman or colleagues walked over the site with others on 16 January 2014 and 12 February 2014. Three samples collected on 16 January 2014 found to contain chrysotile and amosite asbestos referred to as "bonded fibre-cement pieces" were located on the eastern and southern portion of the land. TP 3-7 were drilled on 12 February 2014 on the western land and ACM was subsequently identified in TP 2, 3, 5 and 7. Chrysotile asbestos was identified in TP 3, 5 (and 9) but the particulars to the offence refer to bonded asbestos.
As Contractors submitted there is no agreement in the SOAF about the amount of fill placed on the western part of the land. The description in par 21 of the SOAF is that the fill was relatively shallow consisting predominantly of sand and sandstone gravel and rubble with some concrete, broken asphalt and brick pieces, covered in a thin layer of blue metal. The unchallenged estimate of Mr Allen Romanous that of 1.8 tonnes of waste removed from the western flat land in May 2014 about 1 kilogram was asbestos suggests that the quantities of bonded asbestos on the western flat land were low.
Further the asbestos identified on the western flat land is generally bonded and the offence is particularised as fill with bonded asbestos. The Gorman Report states that bonded asbestos only poses a risk to human health if physically damaged. Bonded asbestos in sand represents a low level human health risk if land is well managed. The Gorman Report at p 3 identifies that the western bank in February 2014 was well covered in weeds, shrubs and some trees, some rubbish and one piece of bonded fibre cement was observed on the ground surface in the northern portion of the western bank. The Prosecutor has not established beyond reasonable doubt that the area of fill was or is being disturbed such as by truck movements so that there is no evidence of actual physical damage to the bonded asbestos.
The risk to human health and safety from the low levels of bonded asbestos on the western land is low in the admitted circumstances of this offence.

Practical measures that may be taken to prevent control, abate or mitigate harm, s 241(1)(b)

The Prosecutor submitted that Allen Romanous holds an asbestos licence and either knew or ought to have known that the fill materials were likely to contain asbestos. The presence of the contaminated material at all tested levels, including at the surface, suggests a complete lack of practical measures put in place by Contractors to control, abate or mitigate the harm that could result from the land pollution let alone "proper and strict precautions" as ought to have been in place to prevent pollution: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359.
Contractors submitted that as Mr Allen Romanous did not consider there was any risk of environmental harm or harm to the safety of his contractors and employees at the time the filling was undertaken he did not identify the need to take precautionary measures. Once aware of the presence of ACM he arranged promptly for mitigating measures to be taken. The western portion of the land has been remediated and cleared of all visible signs of ACM by instructing Construction to engage Pure Contracting Pty Ltd to remove asbestos contaminated soil. In areas directly adjacent and on the lower bank of the watercourse impermeable geofabric had been installed. It is clear that practical and effective measures to mitigate harm since the offence have been taken.

Whether the harm was foreseeable, s 241(1)(c)

The Prosecutor submitted that Contractors knew or ought to have known that asbestos would be present in fill material taken from the eastern portion of the land and that the filled platform would be used for vehicular access. Accordingly the harm associated with the land pollution was a foreseeable consequence of placing that material as fill on the western portion.

Control over causes, s 241(1)(d)

Mr Allen Romanous admits that at all material times he was in control over the actions of Contractors which gave rise to the offence.

Defendant's state of mind/reasons for offence

The Prosecutor submitted that the fill on the land was either known to include ACM, included bonded asbestos, or ought to have been within the corporate knowledge of Contractors. This material was not placed in any careful or managed way and was not carried out under specialist supervision. Material suspected to contain asbestos and which was subsequently shown to contain asbestos was evident to Mr Gorman and Michael Alexander on the surface of the land when walking over it in February 2014. Contractors admits these matters. The Prosecutor submitted that Mr Allen Romanous could have seen asbestos material on the surface in 2011 when the work was done given that it was still detectable with the naked eye in 2014.
The Prosecutor submitted that given the direct control over the causes of the offence by Mr Allen Romanous the actions were either intentional, or caused by corporate recklessness to the presence of contaminated material: Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 ("Gittany") at [123]. Forming a subjective belief that the material might not contain bonded asbestos is not mitigating. The material was known to be present and unless strict controls were put in place to prevent ACM from being part of the fill this was a foreseeable outcome of moving that material across the land.
There is no evidence to establish beyond reasonable doubt the Prosecutor's submission that the actions of Contractors were intentional or reckless. Contractors' submission that the actions of its director Mr Allen Romanous did not demonstrate premeditated intention to flout the law in order to dispose of waste material is accepted. Mr Allen Romanous states in his affidavit he believed the fill was clean. Contractors' reasons for committing the offence did not involve any cost saving exercise. Mr Allen Romanous' unchallenged evidence is that the filling work was a result of a bona fide desire to properly carry out work referable to the building consent. The placement of fill on the western portion of the land was the culmination of the clean-up of the western portion of the land: Allen Romanous' affidavit at [29]. Mr Allen Romanous directed his mind to the question whether there was any asbestos and, if there was asbestos it was trivial amounts of ACM in a bonded condition representing a low human health risk: Allen Romanous affidavit at [30].

Low objective seriousness of the offence

The objective seriousness of the offence is low. While the risk to human health is not trivial its extent is as submitted by Contractors. The western portion of the land has been remediated and cleared of all visible signs of ACM by Contractors and managed mainly in areas directly adjacent and on a lower bank of the watercourse by the installation of impermeable geofabric. Contractors' state of mind as represented by its Director Mr Allen Romanous does not exacerbate Contractors' culpability. The offence was not carried out deliberately.

Mitigating factors, CSP Act s 21A(3)

A number of mitigating factors are identified in s 21A of the CSP Act which are relevant to this Defendant.

Early plea of guilty, ss 21A(3)(k), 22

The summons was filed on 6 February 2015. A plea of guilty was entered by Contractors as soon as the Prosecutor was granted leave by the Court to rely on an amended summons on 26 October 2015.
Contractors submitted it was entitled to the full 25% discount for its plea of guilty as it has had maximum or close to the maximum utilitarian value, given also that it was associated with resolving a number of other charges and was immediate upon the amendment of this particular charge. The amendment made was not trivial in nature as it removed the pejorative term "unauthorised fill", which carried the implication of fill from beyond the land. The principles in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 ("R v Thomson; R v Houlton") at [152], [160] identifying that a maximum discount for the utilitarian value of the plea of guilty should be accorded where a plea of guilty is made at the earliest opportunity. Given the commencement of proceedings on 6 February 2015 followed by lengthy negotiations leading to the amendment of the summons in October 2015 a discount of a little less than 25% is appropriate.

Contrition and remorse, s 21A(3)(i)

In his affidavit Mr Allen Romanous accepts full responsibility for the offence and expresses his remorse. The genuineness of Contractors' remorse is confirmed by the fact that in April 2013 the sole director of Contractors took full responsibility on behalf of the Defendant for the filling of the western portion of the site.

No prior convictions, s 21A(3)(e)

Contractors has no prior convictions.

Unlikely to re-offend, s 21A(3)(g)

Contractors submitted and I accept that there is no likelihood of re-offending given the correct understanding that Contractors' directing mind, Mr Allen Romanous, has in relation to the offence and Contractors' environmental responsibilities.

Assistance to law enforcement authorities, s 21A(3)(m)

Contractors submitted that it had provided significant assistance to law enforcement authorities, commencing with the sole director's acceptance of responsibility in April 2013 at a site meeting with Council Officers. In addition, there has been negotiation of a SOAF that has made significant concessions and Contractors' participation in an arrangement that on 26 October 2015 resulted in the resolution of a large number (some 22 other charges including the charges brought against the co-Defendant Romanous Construction Pty Ltd), and the saving of a three week trial and significant court time, legal resources and costs of all parties. As noted at [31] of the affidavit of Allen Romanous, Contractors has provided material assistance to the Prosecutor over a long period of time, including by admitting the substance of the amended charge in the letter at Annexure "A" to the affidavit sent on 13 January 2014. The Prosecutor did not disagree with these submissions.

Consideration of summons 51003/2014 - Construction (eastern portion)

Construction is liable for the offence as occupier of the land where the fill was placed and is deemed responsible pursuant to s 257 of the POEO Act. Matters relevant to the assessment of the objective circumstances of this offence are considered below.

Objective seriousness of the offence, POEO Act s 241(1)

A number of matters are relevant to consider in relation to the objective seriousness of the offence concerning the eastern portion of the land.

Extent of harm or likely harm caused to the environment by the commission of the offence, s 241(1)(a)

The Prosecutor submitted that the fill on the eastern side of the watercourse the subject of this charge was likely to cause degradation of the land, resulting in potential harm to the health and safety of human beings that is not trivial and was not excluded from the definition of land pollution or pollution of the land by the regulations under the POEO Act.
The Aargus 2014 Report took samples from four locations within Area B. Six samples were found to have levels exceeding the guidelines for AF/FA materials. Based on the sample results the Aargus 2014 Report concluded that the eastern portion of the site would be suitable for its current commercial land use if contaminants were managed and any potential redevelopment into another commercial land use would need to be subject to a further appropriate remedial/management strategy.
The ACM found during site inspections and walk-overs by Mr Gorman or colleagues in January and February 2014 were in a bonded form and not considered to present a significant health risk unless left in an environment where erosion and disturbance can occur over time (such as if there were intermittent creek flows in the watercourse). There was potential for harm that was not minor or trivial.
As Construction submitted, the offence must be considered in light of the definition of land pollution which focuses on the impact on human health and safety. The definition does not include land degradation more generally, contrary to some of the Prosecutor's submissions. There is no direct evidence of actual environmental harm. Construction acknowledges that there was and is a risk of harm to human health and the environment until remediation is completed. That risk is low as the land was and remains unoccupied.
The testing referred to in the Aargus 2014 Report identified asbestos in the fill on the eastern portion, most of it in bonded form. With proper management the risk to human health is low.

Practical measures that may be taken to prevent control, abate or mitigate harm, s 241(1)(b)

The Prosecutor accepted that some measures were in place to prevent, control or mitigate harm to the environment at the time the fill was placed on the land. Geofabric (weed mat) had been placed and secured across the majority of the embankment, and plants were establishing in parts of this cover.
Further, Construction has been and is remediating the contamination in accordance with Court orders made by consent in Class 4 proceedings. The Argus Site Validation Report dated 21 December 2011 confirmed that the remediation undertaken on the eastern part of the land the subject of the building consent was adequate, and that the site was suitable for the building consent works to commence. The excavation works were carried out by contractors of the company.

Whether harm was foreseeable, s 241(1)(c)

The Prosecutor submitted that Construction knew or ought to have known that asbestos was present in the fill material and hence that harm was a foreseeable consequence of the land pollution. Construction submitted that the risk of harm to the environment was not foreseeable given the very small quantities of bonded asbestos on the eastern portion.

Control over causes, s 241(1)(d)

At all material times Construction was in control of the land as the primary occupier.

Defendant's state of mind/reasons for offence

The Prosecutor submitted that the actions were either intentional, or caused by corporate recklessness to the presence of contaminated material: Gittany at [123]. The Prosecutor has not established these matters beyond reasonable doubt. Constructions' submission that the offence was committed carelessly should be accepted. Mr Anthony Romanous' unchallenged evidence is that he did not know that the fill used was contaminated. He genuinely believed that the material used was clean fill and that the cleaning up and placement of the fill would improve the environmental state and quality of the land.

Low objective seriousness of the offence

The objective seriousness of this offence is low given the low level of risk to human health and safety in the admitted circumstance of the offence. Precautions were taken in the course of filling with geofabric being placed over a large part of the filled area. The offence did not result from deliberate behaviour on the Defendant's part.

Mitigating factors, CSP Act s 21A(3)

There are a number of mitigating factors relevant to this Defendant.

Early plea of guilty, ss 21A(3)(k), 22

The summons was filed on 3 December 2014. Construction pleaded guilty immediately after the original summons was amended on 26 October 2015. Construction is entitled to a little less than the maximum discount of 25% for the utilitarian value of the entry of a plea of guilty at the earliest reasonable opportunity: R v Thomson; R v Houlton.

No prior convictions, s 21A(3)(e)

Construction does not have any convictions for environmental offences.

Good character, s 21A(3)(f)

Construction submitted it is a company of good character. It has been served with several penalty infringement notices (PINS) for projects undertaken about 10 years ago. These were for minor offences at building sites such as tracking sediment onto a roadway. The company has constructed other large-scale developments, and was awarded a 4 Star Green Star - Office Design award by the Green Building Council of Australia for one of those developments. Since the offence, the company has taken steps to prevent the re-occurrence of the offence, making its employees and persons under its control aware of its environmental responsibilities and upgrading its procedures.

Unlikely to re-offend, s 21A(3)(g)

The offender is unlikely to re-offend. Construction has changed its policies and procedures to ensure that employees and contractors are aware of environmental laws and responsibilities.

Contrition and remorse, s 21A(3)(i)

There is evidence before the Court of remorse. I accept the expression of the company and its director's regret for the incident. Construction has accepted responsibility for its actions.

Assistance to law enforcement authorities, s 21A(3)(m)

Construction has cooperated with law enforcement authorities, including negotiation of a SOAF that has made significant concessions and Construction's participation in an arrangement that on 26 October 2015 resulted in the resolution of a large number (some 22 other charges including the charges brought against Contractors), and the saving of a three week trial and significant Court time, legal resources and costs of all parties.

Aggravating factor not present

The Prosecutor submitted that the offence was committed without regard for public safety, which is an aggravating feature under s 21A(2)(i) of the CSP Act. The admitted circumstances do not justify such a finding in relation to either Defendant.

Sentencing principles relevant to both defendants

The gravity of the offence balanced against the personal circumstances provides the Court with the sense of proportionality that will set both the upper and lower limits of the available penalty: Bankstown Council v Hanna [2014] NSWLEC 152; (2014) 205 LGERA 39 ("Bankstown CC v Hanna (2014)") at [44] per Preston CJ.

Deterrence

General and specific deterrence are important matters for the Court to take into account. Persons will not be deterred from committing environmental offences by nominal fines: Environmental Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 at 354; Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [139]-[142], [150], [151].
The Prosecutor also submitted that the fact that Contractors is a company engaged in building projects and administered by a person who is licensed to carry out such works on the assumption that care is to be taken was relevant to the assessment of the penalty: Keir v Sutherland Shire Council [2004] NSWLEC 754 at [13], [20].
While the Prosecutor sought to characterise this offence as the unlawful dumping of asbestos waste, which I accept is an ongoing problem in NSW per Environment Protection Authority v Laison [2015] NSWLEC 89 ("EPA v Laison") at [38], that is not an accurate characterisation of the nature of these offences. While denunciation and general deterrence are important this particular basis is not warranted in this case.
As the likelihood of reoffending is low specific deterrence is not necessary for either Defendant.

Even-handedness

The principle of even-handedness requires that the Court consider if there is any general sentencing pattern for like offences in order to determine a consistent approach to penalty. This principle must always be applied subject to the particular circumstances of the case before the Court, mindful of the different circumstances leading to penalty in other cases.
Previous decisions of the Court regarding transport of asbestos waste and/or pollution of land offences referred to by the Prosecutor follow.
In Hills Shire Council v Suciu (No 3) [2009] NSWLEC 192 the defendant was fined $80,000 for an offence against s 143 of the POEO Act for the dumping of unclean waste on private property without consent. The defendant was found guilty of deliberately transporting and depositing waste on private property without consent (Hills Shire Council v Suciu [2009] NSWLEC 145; 168 LGERA 302). While the offence was not the worst type of case it was very serious, due to the defendant's blatant disregard for the law (at [28]-[29]). The defendant's conduct was premeditated and deliberate, carried out with knowledge of its illegality, and caused harm to the environment (at [30], [36], [38]). There were no mitigating subjective circumstances (at [66]).
In Environment Protection Authority v Hanna [2010] NSWLEC 98 the defendant was fined $32,000, $16,000, $32,000 and $24,000 for four offences under s 143 of the POEO Act of dumping building waste containing asbestos on private land, public roads and a public reserve. The defendant was found to have acted in a premeditated and deliberate manner in knowledge of the illegality of his actions, in order to save money (at [48]-[49]). The defendant had prior convictions for identical offences (at [56]) and failed to comply with clean-up notices served on him by the Prosecutor (at [68]).
In Hills Shire Council v Kinnarney Civil & Earthworks Pty Ltd and Kinnarney (No 2) [2012] NSWLEC 95 the first defendant (corporation) was fined $50,000 and the second defendant (individual) was fined $30,000 for an offence under s 143 of the POEO Act for the dumping of building waste containing contaminants including asbestos on rural land. The dumping of waste including asbestos caused significant actual and likely harm to the environment which was reasonably foreseeable by the defendants (at [23]-[24]). The offences were carried out for financial gain (at [28]), however at the instigation of the owner of the land on which the waste was dumped (at [18]). Mr Kinnarney, the sole shareholder of the defendant corporation, had been found guilty of earlier offences, and there was no evidence of remorse or of good character (at [30]-[33]).
In Kogarah City Council v Man Ho Wong [2013] NSWLEC 187 ("Man Ho Wong") the defendant was fined $5,000 for each of four offences under s 143 of the POEO Act for leaving cartons containing broken fibrous- cement sheeting removed from the defendant's domestic garage on the footpath at four separate locations. The defendant was found to have been aware that the depositing of the cartons of fibrous-cement waste was illegal (at [24]) and the risk of harm was reasonably foreseeable (at [23]). Although the defendant's actions were deliberate and known to be wrong, he was not aware that the material contained asbestos (at [26]). The defendant assisted with investigations and was genuinely remorseful (at [29-[30]).
In Environment Protection Authority v Ashmore [2014] NSWLEC 136 the defendant was fined $24,000 under s 143 of the POEO Act for the transportation of excavated material containing asbestos to a rural site to be used in the repair of a farm dam. The defendant was aware of the essential elements of the offence and that the waste contained asbestos however there were several relevant mitigating factors that were taken into account in imposing the penalty (at [61]). The defendant acted in accordance with orders of Mr Laison who was charged with a related offence in EPA v Laison. He was found to be in fear of Mr Laison, and therefore the commission of the offences was affected by duress however the defendant's actions were also governed by financial considerations (at [94]).
In Bankstown CC v Hanna (2014) the defendant was charged with multiple offences under ss 142A and 143 of the POEO Act. He was fined $48,000 and $40,000 respectively for the two offences under s 142A, for the pollution of private land and a public park with material including amosite asbestos. The defendant had been issued with at least 29 penalty notices and prosecuted in courts at least 11 times for offences related to the illegal dumping of waste (at [1]). A substantial fine was imposed due to the need to deter him from re-offending again (at [6]). The defendant knowingly and deliberately disposed of waste in locations where waste disposal was not permitted in order to save money (at [35], [82]).
In EPA v Laison the defendant pleaded guilty on the first day of hearing to an offence of unlawful transport and depositing of waste contrary to s 143(1). The waste soil included asbestos used as fill and was deposited deliberately. The defendant was fined $63,000 applying a 10% reduction for the guilty plea.
As the Defendants submitted the two offences before me are far less objectively serious than all these cases as they do not involve the deliberate dumping of waste on land not belonging to the Defendants. In all but Man Ho Wong the defendants were aware that the waste contained asbestos. For example, in Bankstown CC v Hanna (2014) the defendant dumped eight stockpiles of building waste on vacant land with each stockpile being 10 tonnes of soil, building debris such as concrete and pipes and asbestos fragments. Mr Hanna also deposited 10 tonnes of waste containing friable asbestos in a public park.
The far more culpable behaviour in all the above cases is reflected in charges under s 143 of the POEO Act which has as an element of the offence the unlawful transport of waste. Only in Bankstown CC v Hanna (2014) was the defendant also charged with offences under s 142A. The activity which gave rise to these offences cannot be characterised as knowingly dumping asbestos waste hence the offence charged is under s 142A not s 143(1).

Penalties imposed

Weighing up the objective and subjective factors for the Defendants, which are generally similar, I consider the penalties should be the same in both matters. In proceedings No 14/51018 the amount of $60,000 should be reduced for mitigating circumstances by 30% to $42,000. In proceedings No 14/51003 the amount of $60,000 should be reduced for mitigating circumstances by 30% to $42,000.

Costs

Contractors and Construction have agreed to pay the Prosecutor's costs of these proceedings and other charges originally laid and agreed to be withdrawn by the Prosecutor in the amount of $170,000. Those costs have not as yet been paid.

Publication orders to be made

Both Defendants have agreed to the making of a publication order in the terms identified in Annexures A and B respectively to the judgment. The making of such orders is enabled by s 250(1)(a) of the POEO Act and such orders are appropriate in this case.

Orders

In proceedings No 14/51018 the Court makes the following orders 1. The Defendant Romanous Contractors Pty Ltd is convicted of the offence charged. 2. The Defendant is to pay a penalty of $42,000. 3. Pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, within 28 days of this order the Defendant is to place a notice in the first 12 pages of the St George and Sutherland Shire Leader at a minimum size of 8 cm by 12 cm in the form of Annexure A to this order. 4. Within 35 days of this order, the Defendant is to provide to the Prosecutor a copy of the notice as published. 5. The Defendant must pay the Prosecutor's costs of the proceedings as agreed or assessed.
In proceedings No 14/51003 the Court makes the following orders 1. The Defendant Romanous Construction Pty Ltd is convicted of the offence charged. 2. The Defendant is to pay a penalty of $42,000. 3. Pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, within 28 days of this order the Defendant is to place a notice in the first 12 pages of the St George and Sutherland Shire Leader at a minimum size of 8 cm by 12 cm in the form of Annexure B to this order. 4. Within 35 days of this order, the Defendant is to provide to the Prosecutor a copy of the notice as published. 5. The Defendant is to pay the Prosecutor's costs as agreed or assessed.

ANNEXURE A PROSECUTION FOR POLLUTION OF LAND On 16 February 2016 the Land and Environment Court of New South Wales convicted and sentenced Romanous Contractors Pty Ltd for an offence of pollution of land. The offence occurred in the course of filling works during the development of the land at Lot 21 DP 542051 known as 84D Roberts Avenue, Mortdale. Between 13 January 2010 and 21 December 2011 Romanous Contractors Pty Ltd filled the western portion of the land with fill that included bonded asbestos. Romanous Contractors Pty Ltd pleaded guilty to the charges and was ordered to pay a penalty of $42,000. It was also ordered to pay the Council's costs. Romanous Contractors Pty Ltd was prosecuted by Hurstville City Council. This notice was placed by order of the Land and Environment Court and is paid for by Romanous Contractors Pty Ltd. ANNEXURE B PROSECUTION FOR POLLUTION OF LAND On 16 February 2016 the Land and Environment Court of New South Wales convicted and sentenced Romanous Construction Pty Ltd for an offence of pollution of land. The offence occurred in the course of filling works during the development of the land at Lot 21 DP 542051 known as 84D Roberts Avenue, Mortdale. Between 14 May 2012 and 9 October 2013 Romanous Construction Pty Ltd filled the eastern bank of the watercourse located on the land with fill that included bonded asbestos. Romanous Construction Pty Ltd pleaded guilty to the charges and was ordered to pay a penalty of $42,000. It was also ordered to pay the Council's costs. Romanous Construction Pty Ltd was prosecuted by Hurstville City Council. This notice was placed by order of the Land and Environment Court and is paid for by Romanous Construction Pty Ltd. 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: 29 March 2016

Environment Operations Act 1997(NSW)

(1993) 113 LGERA 357

(2006) 145 LGERA 234

(2006) 145 LGERA 189

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