Palmgrove Holdings Pty Ltd v Sunshine Coast Regional Council [2014] QDC 77

District Court of Queensland|2014-04-11

APPEAL - APPEAL AGAINST CONVICTION - GROUNDS FOR INTERFERENCE - APPEAL BY CONVICTED PERSONS - Where at first instance the Magistrate convicted the appellant of an offence pursuant to s440ZG of the Environmental Protection Act 1994 - Whether that offence was proven beyond reasonable doubt - Where at first instance the Magistrate did not address specific requirements as to proof of the element of unlawfulness - Rehearing on the record

APPEAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE - Where appellant contends that the fine of $15,000.00 was a manifestly excessive sentence - Whether in the first instance the Magistrate erred by placing "great importance" on deterrence - Deterrence of the offending conduct, rather than any proven environmental harm - Whether the fine of $15,000.00 is within the range of appropriate penalties under the Penalties and Sentences Act

APPEAL - PROCEDURE - COSTS - Where the Magistrate ordered the appellant to pay costs of $14,766.62, allowing a claim for a higher amount pursuant to s158B Justices Act - Where the appellant contends that the award of a higher amount of costs was not justified - Whether the Magistrate erred in deciding to allow the recovery of the higher amount of costs

Commissioner of Police v Al Shakaji [2013] QCA 319

House v R (1936) 55 CLR 499

Ipswich City Council v Dixonbuild [2012] QCA 98

Mbuzi v Torcetti [2008] QCA 231

Merrin v Commissioner of Police; Merrin and Anor v Commissioner of Police [2012] QCA 18

Rowe v Kemper [2008] QCA 175

Teelow v Commissioner of Police [2009] QCA 84

Tierney v Commissioner of Police [2011] QCA 327

State Penalties Enforcement Regulation 2000, s 4, Schedule 2

[1] On 5 September 2012, the appellant filed a notice of appeal against each of the orders made in the Magistrates Court at Maroochydore:

(a) On 25 July 2012, convicting the appellant of an offence of unlawfully depositing a prescribed contaminant in a storm water drain, pursuant to s 440ZG of the Environmental Protection Act 1994 ("EPA")[1]; and

(b) On 13 August 2012, fining the appellant $15,000 by way of sentence and ordering it to pay costs in the sum of $14,766.62.

[2] On 19 November 2012, a further notice of application for extension of time for the filing of the aforementioned notice of appeal "as far as it related to the appeal against conviction, was also filed." In the grounds relied upon in that notice it was pointed out that whilst the notice of appeal was filed within the requisite one month of the date of the imposition of sentence and making of the costs order, it was filed about six weeks after the conviction of the appellant. That notice also frankly acknowledged the not unprecedented and not necessarily excusable error, of waiting until the proceeding in the Magistrates Court was finalised before making the decision to appeal. However and in circumstances and where no prejudice to the respondent was identified, the application for extension of time was not opposed and should be granted. Accordingly the appellant will be referred to as such in these reasons.

[3] It is convenient, at the outset, to note the terms of the particularised charge in the complaint made against the appellant, in the amended form in which it was heard by the Magistrate below:

"On or about the 11 August 2010, Palm Grove Holdings Pty Ltd ACN 010 870 925 ('Palm Grove') being a company duly incorporated according to the corporations law and having its registered office at 2 Misty Court, Yandina in the State of Queensland, whilst carrying out operational works at premises located at Lot 5 SP 221523 ('the Land') within the Magistrates Court District of Maroochydore, did, contrary to s 440ZG of the Environmental Protection Act 1994, unlawfully deposit a prescribed water contaminant in storm water drainage.

IT IS AVERRED THAT the said contravention was not authorised under s 468 of the Environmental Protection Act 1994.

by decision notice dated 21 January 2010, the Sunshine Coast Regional Council ('Council') issued a development permit for operational works (Engineering Works - Road works, Drainage, Storm water, Sewer and Water) OPW09\0259 ('the Approval') with respect to land located at Ridgeview Drive, Peregian Springs formally described as Lot 5 SP190754 and Lot 1 SP190750.
The registered owner of the land during the period October 2009 to August 2010 was FKP Residential Developments Pty Ltd ACN 010 442 241.
The Council issued a negotiated decision notice in respect of the Approval on 25 February 2010 ('the Changed Approval').
In or about March 2010, Palm Grove was engaged by the registered owner of the Land to carry out works on the Land that were authorised by the Approval and Changed Approval, including but not limited to works requiring the implementation of erosion and sediment control measures on the Land ('the Works').
In or about March 2010 to August 2010, Palm Grove carried out operational works on the Land in reliance upon the Approval and the Changed Approval.
On 11 August 2010, water was released from the boundary of the land which:
1. contained a concentration of suspended solids measuring 600 milligrams per litre; and
2. entered storm water drainage outside of the Land.
the water released from the Land on 11 August 2011 contained a Prescribed Water Contaminant ('PWC') as defined in the Environmental Protection Act 1994 by reference to sections 440ZD and 440ZF and schedule 9 of the Environmental Protection Regulation 2008.
Palm Grove unlawfully caused the PWC to be released from the Land."

[4] Although it can be noted that there had been an objection to amendments which were allowed by the Magistrate at the hearing and that there is a ground of appeal alleging error in respect of the allowance of those amendments, this issue was not pursued at the hearing of the appeal and it suffices to note for present purposes that the purpose of the amendments, as noted in the Magistrate's reasons, was to modify the description of the land at which the offence occurred, having regard to various changes in description that had occurred as a result of resurvey of the land and to accord with the correct description of the land subject to the charge as at 11 August 2010 and as it was described in an infringement notice that was issued in respect of this matter. As was noted, an effect of that was to narrow the description of that land to an area of some 26.33 hectares and not to include a further 80.96 hectares described as Lot 1 on SP190750. Although and as can be noted from the first particular of the charge, the approval referred to, related to both Lots.

[5] Although later conceded (in further written submissions) to be contrary to binding authority, initially the appellant sought to make a point about the nature of an appeal conducted by way of rehearing and particularly that such an appeal against an exercise of discretion, such as in respect of sentence, would not be constrained by the principles established in House v R (1936) 55 CLR 499. However, it is convenient to here set out the general principles which are to be applied in the resolution of this matter.

[6] As required by s 223 of the Justices Act, an appeal brought pursuant to s 222 of that Act, is conducted by way of re-hearing and (in the absence of any order giving leave to adduce new evidence), that occurs on the evidence given in the proceedings before the Magistrate. The Court of Appeal has emphasized this requirement in a number of decisions.[2] The principle was stated as follows in Mbuzi v Torcetti:[3]

"On such an appeal the Judge should afford respect to the decision of the Magistrate and bear in mind any advantage the Magistrate had in seeing and hearing the witnesses give evidence, but the Judge is required to review the evidence to weigh the conflicting evidence, and to draw his or her own conclusions; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [25]; Rowe v Kemper (2008) QCA 175 at [5]."

[7] It can be discerned that the outcome in Mbuzi v Torcetti was ultimately reached on a conclusion that "there was no error in the Magistrate's conclusion"[4] and as was noted in Tierney v Commissioner of Police,[5] this type of appeal involves a review of the record and "to succeed an appellant needs to show some legal, factual or discretionary error." Subsequently it was further observed:[6]

"In appeals pursuant to s 222 of the Justices Act 1886 (Qld), this Court has

consistently applied what the High Court said in Fox v Percy in determining whether a magistrate erred in making findings of fact based on assessment of the credibility of witnesses. See, for example, Rowe v Kemper."

[8] Further and more recently, in Merrin v Commissioner of Police; Merrin and Anor v Commissioner of Police,[7] the earlier observations made in Teelow v Commissioner of Police[8] were cited with approval. This included the following:

"[3] A characteristic of an appeal "by way of rehearing" is that the appellate court, subject to its powers to admit fresh evidence, rehears the matter on the record of the court from which the appeal comes. In Scrivener v Director of Public Prosecutions, McPherson JA, referring to an appeal "by way of rehearing" under r 765(1) of the Uniform Civil Procedure Rules 1999, observed:

"It is well settled that a provision that characterises an appeal to this Court as a 'rehearing' ordinarily refers to a rehearing on the record, and not to what is sometimes called a rehearing de novo: see Powell v Streatham Manor Nursing Home [1935] AC 243, 263. On such a rehearing the appellate court has power to draw inferences from primary facts, including facts found and facts not disputed, which is as complete as that of the primary judge: see Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, 537-541. On the other hand, an appeal under that form of procedure does not involve a rehearing of witnesses ... Further evidence may be received on appeal, but only on special grounds: see r 766(1)(c) ..."

[4] It is a normal attribute of an appeal by way of rehearing that 'the powers of the appellate court are exercisable only where the applicant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error ... At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance.' On an appeal by way of rehearing an appellate court can substitute its own decision based on the facts and the law as they stand at the date of the decision of the appeal."[9]

[9] More recently again and in Commissioner of Police v Al Shakaji[10], the Court of Appeal reinforced these principles[11] but otherwise enforced the requirement that those principles be applied in the context of the rehearing that is required under the legislative provisions and that particularly where that involves a contention of factual error, there is necessity to conduct a real review of the evidence and for this court to make its own assessment of the evidence and form its own conclusions as to any impugned factual conclusion, having due regard to the finding and conclusion of the Magistrate[12].

[10] In this case and as required by s 222(8)(a), grounds of appeal have been stated, as follows:

1. The finding of guilt was unreasonable and cannot be supported having regard to the evidence.

2. The finding by the learned Magistrate that the Appellant deposited contaminated water into a stormwater drainage was unreasonable and cannot be supported having regard to the evidence.

3. In the alternative to ground two, the finding by the learned Magistrate that the Appellant's deposit of a contaminant was unlawful was unreasonable and cannot be supported having regard to the evidence.

4. The learned Magistrate erred in allowing amendments to the complaint during trial.

1. The penalty is in all of the circumstances excessive.

1. The learned Magistrate erred in finding the prosecution case had special difficulty, complexity or importance that warranted an order for costs in excess of the scale prescribed under regulation."

[11] Particularly in relation to the appeal against sentence, which is an appeal brought against the exercise of discretion by the Magistrate, the appellant sought to emphasize the requirement of conducting the appeal as a rehearing, to the exclusion of any application of the principles established in House v R[13]. However that contention is not consistent with the approach of the Court of Appeal in Teelow v Commissioner of Police[14].

[12] I will subsequently return to the specific issues raised in respect of sentence and costs.

[13] As far as is relevant to this matter the offence of which the appellant was convicted was described in s 440ZG of the EPA as follows:

(a) unlawfully deposit a prescribed water contaminant -

(ii) in a roadside gutter or stormwater drainage..."

[14] As to the four critical constituent components or elements of this offence it can be noted that:

(a) Some relevant definitions were provided in s 440ZD as follows:

Storm Water Drainage means a drain, channel, pipe, chamber, structure, outfall or other work used to receive, store, transport or treat storm water."

(b) Section 440ZF allows for prescription of contaminants by way of regulation and for present purposes it suffices to note that under the Environmental Protection Regulation 2008 schedule 9, item 3, a prescribed water contaminant was "a liquid containing suspended or dissolved solids".

"(1) A person deposits a contaminant in waters or at another place if the person -

(a) drops, places or throws the contaminant in the waters or onto the place; or

(b) releases the contaminant, or otherwise causes it to move, into the waters or onto the place."; and

(d) The requirement of unlawfulness is informed by s 493A which relevantly provided:

"493 A When environmental harm or related acts are unlawful

(1) This section applies in relation to any of the following acts (relevant acts) -

(2) A relevant act is unlawful unless it is authorised to be done under -

(e) a development condition of a development approval..."

[15] In this context, the gravamen of the charge made against the appellant was that it released water from Lot 5 on SP 221523 ("the Land") and into storm water drainage external to the land, which contained a concentration of suspended solids which contravened a development condition in the relevant development approval and therefore, it was alleged, this occurred unlawfully. It can be noted that the relevant condition, precluded any discharge of water from the land that exceeded a concentration of 50 mg/L of total suspended solids.[15] It was further alleged and not in contention that the external storm water drain led to a waterway and eventually in the nature of an environmental wetland.

[16] In his decision, the Magistrate set out the broader factual context, as far as is largely uncontroversial, as follows:

"[17] The Sunshine Coast Regional Council issued on 21 January 2010 a conditional Development Permit for Operational Works (Engineering Works - Roadworks, Drainage, Stormwater, Sewer and Water for Land at Ridgeview Drive, Peregian Springs[16].

[18] The registered owner of the land was FKP Residential Developments Pty Ltd.

[19] A changed approval issued on 25 February 2010[17].

[20] Palmgrove Holdings Pty Ltd was contracted by FKP Residential Developments Pty Ltd on 27 May 2010 to carry out construction of roadworks, drainage, sewerage reticulation, water reticulation and conduiting in accordance with the approvals given by the Sunshine Coast Regional Council[18]. Included were works requiring the implementation of erosion and sediment control measures on the land.

[21] Notice of the appointment as the principal contractor of Palmgrove Holdings Pty Ltd trading as Carruthers Contracting was given to the Sunshine Coast Regional Council on 12 March 2010[19].

[22] The construction works commenced in March 2010 and was ongoing in August 2010.

[23] On 11 August 2010 as a result of heavy rainfall overnight, turbid water flowed from the construction site down a channel entering stormwater drainage outside the land. It is alleged that the turbidity of the water was caused by the failure of the defendant to implement proper controls to contain the sediment flow.

[24] The operation works performed by the defendant was on land with the real property description of Lot 5 on SP 221523. This was the land for stages 41, 42 and 44 of the Coolum Ridges East Village, Peregian Springs. Stage 41 is the relevant stage so far as this matter is concerned. The adjacent roads to the land for this stage are Harvard (sic) Road West, on the north boundary of the construction site and Brindabella Avenue, which was under construction in this stage.

[25] Brown Consulting (QLD) Pty Ltd was employed by the owner of the land to provide design and contract administration services for the project. The design work completed was the roads, drainage, water, sewerage, and conceptual erosion and sediment control design. The contract administration process included the tender process and ultimate contract.

[26] The owner of the land entered into a contract with the defendant for the construction clearing works and associated sediment and erosion control for the residential subdivision at Coolum Ridges East Village - Stage 41 to 46. The construction works required to be undertaken included the stripping of top soil, the cutting and filling of the land to create development parcels, the installation of drainage pipes, the installation of pavement materials, the preparation of the site in terms of erosion and sediment control, installation of sewerage works and water reticulation and conduiting works. Additionally, there were also some landscape and electrical works.

[27] The defendant was required under the contract with the owner to satisfy all legislative requirements[20]. Also, the defendant was required to comply with all legislative requirements relating to the protection or preservation of the environment and all environmental management plans provided by or on behalf of the owner to the defendant[21]. The defendant was contractually bound to meet those requirements.

[28] The contractor was entirely responsible for the implementation, monitoring and maintenance of erosion and sediment control measures on the site[22]. All necessary precautions were to be taken to control erosion and prevent the movement of sedimentation within and from the job site to downstream water courses in accordance with best practice measures as defined in the Manual for Erosion and sediment Control (Maroon Manual). The contractor was required to familiarise themselves with the Maroon Manual and the requirements therein. Also, there was responsibility for ensuring that discharges from the site did not exceed 50mg/l total suspended solids for all events up to and including the design storm event (as specified in Brown Consulting's Conceptual Design for Erosion and sediment Control).

[29] Under the contract, Brown Consulting (QLD) Pty Ltd was appointed Superintendent. The duties were processing claims, attending to any requests for information form the contractor, processing extensions of time claims and facilitating the projects progression through to completion of construction. Mr Studiman was the employee from Brown Consulting (QLD) Pty Ltd who undertook the role.

[30] Mr Studiman did give an advice about the shaping of the external batters of the sediment basin and the installation of white PVC outlet pipes. Mr Studiman was not called to give evidence by either party.

[31] The contract provides that the defendant had to ensure no release or flow from the site, throughout the earthworks and construction period, to any waterway, or stormwater drain or drainage line leading to a waterway area of native vegetation, unless the level of Total Suspended Solids did not exceed a concentration of 50 milligrams per litre[23]. Irrespective of what advice was given by the Superintendent, the defendant still had a contractual responsibility for erosion and sediment control measures on the site. Any contaminated water escaping from the construction site was the responsibility of the defendant.

[32] A significant rain event occurred overnight from 10 August 2011. The rainfall was according to Brown Consulting (QLD) Pty Ltd 90mm in a twenty-four hour period[24]. Construction works were occurring within the road reserves, sediment basins and some portions of lot areas in the days prior to the rain. Two sediment basins had been constructed[25]. Sediment basin 2 had previously been constructed, nearly twice the required capacity. Shaping of the external batters during construction work had reduced the basin in size. The storage capacity of the sediment basin, together with the pipe network was adequate for a 48mm rain event. However, the defendant had not blocked off the pipes, and thus the capacity of the sediment basin had been reduced.

[33] Mr Rowlands in his evidence expressed surprise when he attended the site that there was a very low level of water in sediment basin 2. This was due to two storm water field inlets being installed within the basin which had allowed the basin to drain. Two white PVC pipes were connected to the two field inlet pits. The pits drained through the pipes and into a channel which flowed through retained vegetation into stormwater drainage.

[34] Upslope of sediment basin 2, erosion occurred and sediment entered straight into the stormwater system. There was an absence of treatment measures. The stormwater manhole could have been covered and sandbagged off, so water could not enter it. There was also a gap between the concrete cover and the manhole, and stormwater entered into the stormwater system around the manhole cover. The manhole was round and the cover top was square. Topsoil had been spread over future allotments; but had not been stabilised with either mulch or a hydro-mulch spray. Erosion occurred off these lots. There was an absence of controls to control the velocity of water and the movement of soil through the site.

[35] The photographs taken supported the observations made by Mr Rowlands. The photos depict turbid water in the channel and turbid water from the channel coming out of the culvert south of Havana Road West.

[36] At the time of the rainfall event, the two white PVC pipes leading into the channel had not been capped off. The rainfall water was intended to be contained in sediment basin 2, but the sediment basin emptied out through the two white PVC pipes into the channel. It was a high rainfall event over night, more than the sediment basin had been designed for. Nevertheless, the sediment basin could not fulfil its function due to the error in not capping off the pipes. The volume of rainfall that occurred could have led to overtopping of the sediment basin; but that possibility did not occur as the sediment basin did not function as it should have." [some minor typographical errors corrected]

[17] Subsequently and immediately after a reference to the decision in Ipswich City Council v Dixonbuild[26] and the requirement for the prosecution to prove the elements of the offence beyond reasonable doubt, the critical question to be determined was then identified and addressed as follows:

"[50] In this case, the critical question is whether contaminated water from the construction site, being Stage 41, did flow into storm water drainage. Two experienced Council officers went to the construction site and saw an obvious implementation error[27]. The defendant had not blocked off the storm water pipes from Sediment Basin 2. Contaminated water flowed into the Sediment Basin through the pipes and out into the channel. Water less turbid came from a side culvert: but the predominant contamination of water flowed from the pipes into the channel, along the tunnel and into the storm water drainage by the culvert south of Havana Road West. The contaminated water was described as turbid water with a high level of sediment which the sample taken verified. The sample was taken with the boundary of the construction site. The contaminated water flowed along the channel, through the natural vegetation and came out through the culvert which was at a low point on Havana Road West. There was no evidence of any possibility of the water being contaminated from any other location. The water that flowed from the channel through the culvert into the adjacent wetland was contaminated water. Therefore, the charge against the defendant has been proven guilty beyond a reasonable doubt."

[18] The appellant complains that this was an unreasonable conclusion and invites review as to whether this offence was proven beyond reasonable doubt on the evidence adduced. More specifically the appellant draws attention to the evidence of the collection of the single sample of water taken in the investigation of this matter and which was later analysed to contain of a concentration of suspended solids, measuring 600mg/l. The Magistrate's findings in respect of this evidence were as follows:

"[37] On 11 August 2010, Mr Rowlands[28] and Mr Salt[29] went to the Coolum Ridges site at 11.30am. Mr Rowlands is an engineer by profession. He was the lead officer and took the water sample. Mr Salt took the photographs tendered in evidence. Both were experienced officers in the collection of water samples.

[38] A water sample was taken in the channel adjacent to the two white PVC pipes. A visual test based on their experience was whether their fingers could be seen clearly through a clear plastic bottle. The water sample collected was in the view of the two officers beyond the release limit for the operational works permit.

[39] Mr Rowlands collected a water sample in a clear plastic bottle[30] from the location in the channel as identified in photograph 6. The location is immediately downstream of sediment basin 2. The water collected in the bottle was highly turbid and had a significant amount of sediment in it. Mr Rowlands was aware of condition 29 Sunshine Coast Regional Council Decision Notice[31]. The condition is a standard condition in development approvals. It had the requirement no release or flow is permitted from the site, through the earthworks and construction period, to any waterway, or stormwater drain or drainage line leading to a waterway or area of native vegetation, unless the level of total suspended solids does not exceed a concentration of 50 milligrams per litre. Mr Rowlands did a visual check of the water supply. The usual check is to hold up a Coke bottle containing the turbid water. The fingers can be just seen through the other side at 50 milligrams per litre. He recalled the water was highly turbid and that he could not see his fingers through the other side of the bottle.

[40] After he collected the water by dipping the collection bottle in the channel, he placed the bottle in an esky containing ice which was in Mr Salt's vehicle. The sample bottle was subsequently taken to Unity Water for testing. The sample of water collected was tested at the laboratory of Unity Water. The laboratory is NATA accredited. The result for the two tests conducted on 11 August 2010 was for pH 6.7 and suspended solids 600 milligrams per litre.

[41] Mr Rowlands took one sample as it was a well-mixed strongly flowing stream. He believed that the taking of one sample was appropriate to get a representation of the flow and was consistent with the manual. The Monitoring and Sampling Manual 2009[32] states that unless the material to be sampled is known to be well mixed, it is unlikely for a single measure to be representative of the source body of material. Mr Rowlands saw that the water was well-mixed and decided to take a single sample. As statistical testing for the different locations was not being carried out, he saw no need for further samples. The process undertaken by Mr Rowlands is unremarkable in that he was an experienced officer, aware of the sampling standard and had a well-mixed sample that was beyond the sediment level in the standard development condition. The legislation does not contain any set procedure for the collection of a water sample. The collection process for the sample was adequate.

[42] Mr Rowlands observed that turbid water was flowing out of the white PVC pipes into the channel where the sample of water was collected. Also, water was flowing out of a culvert from a clean water diversion drain under Brindabella Road; but this water was reasonably clear. This water came from another construction site of the defendants. The turbid water was coming predominantly from the two white PVC pipes. The turbid water flowed down the channel through the natural vegetation coming out of the culvert as depicted in photograph 6. at Havana Road West. Downstream of the culvert where the turbid water was flowing is a wetland area. Mr Rowlands and Mr Salt drove up to the end of Havana Road West to see if there was any potential source of sediment and didn't identify any. There was no obvious sign of sediment contamination on Havana Road West.

[43] No water sample was taken further downstream from where the sample was taken. Mr Rowlands was satisfied that the turbid water leaving the site flowed underneath the road from the other side and left the site at the location of the culvert. The sample was taken where identified, which was in the vicinity of 30 - 60 metres distance from the culvert at Havana Road West. Mr Rowlands had a clear line of sight along the straight channel to Havana Road West. Mr Rowlands says he did progress further into the vegetation area adjacent to the channel as part of his inspection.

[44] Mr Salt observed the turbid water in the channel and it looked beyond the release limit for the operational works permit. Through similar experience to Mr Rowlands, he could tell from the water in a sample bottle whether it exceeded the release limit. The sample of the water take did not pass the visual test.

[45] Mr Salt stated that the channel through the vegetation went to a culvert system underneath Havana Road West and flowed onto an environmentally defined wetland. He recalls spending five to ten minutes at the culvert observing the water flowing. He looked back up into the site and saw the turbid water flowing through the vegetation to the culvert. He estimates the distance from the collection point to the culvert at Havana Road West at about 80 metres. Mr Salt recalls that he and Mr Rowlands travelled up and down Havana Road West for inspection purposes." [some minor typographical errors corrected]

[19] Essentially the appellant contends that the evidence underpinning and as described in these findings, did not allow for proof beyond reasonable doubt of the commission of the offence, because:

(a) no sample was taken at or sufficiently near to the boundary line, to prove it;

(b) no sample was taken sufficiently close to the source of the movement of water from the sediment basin and into the channel and before it became mixed with the water coming from the side culvert, also emptying into that channel; and

(c) the possibility of an overflow event, given the overnight rainfall in a quantity that exceeded the capacity of the sediment basin, was not excluded as potentially contributing to the state of the water in the channel from which the sample was taken.[33]

[20] It is convenient to first deal with the last of these contentions. As was recognised in the course of oral submissions on the appeal, the contention is complicated by the need to understand that, although no reference was made to this before the Magistrate, the contention engages the concept of the general environmental duty, as set out in s 319 of the EPA as follows:

(1) A person must not carry out any activity that causes, or is likely to cause, environmental harm unless the person takes all reasonable and practicable measures to prevent or minimise the harm (the general environmental duty).

(2) In deciding the measures required to be taken under subsection (1), regard must be had to, for example -

(b) the sensitivity of the receiving environment; and

(d) the likelihood of successful application of the different measures that might be taken; and

(e) the financial implications of the different measures as they would relate to the type of activity."

[21] That concept would be engaged because of s 493A(3), which provided:

"(3) However, it is a defence to a charge of unlawfully doing a relevant act to prove -

(a) the relevant act was done while carrying out an activity that is lawful apart from this Act; and

(b) the defendant complied with the general environmental duty."

[22] However the problem with this contention is that there was therefore clearly an onus of proof placed upon the appellant and a review of the record indicates that the Magistrate was not specifically referred to the general environmental duty. This appears to be because no attempt was made to discharge that onus. In any event, and as the Magistrate found[34], the possibility of overflow of the sediment basin was apparently adverted by the escape of water through the PVC pipes which had been previously installed.

[23] A related point effectively involved criticism of the Magistrate's finding that:

"At the time of the rainfall event, the two white PVC pipes leading into the channel had not been capped off."[35]

It was contended that there was no proof that the pipes had been left in an uncapped state. However that was only true as to any direct evidence as to that fact and such an inference may have arisen from the evidence of Mr Rowlands and Mr Salt, of their observations after the event. More fundamentally, this was also a point that potentially went only to the defence in s 493A(3) of the EPA and as to which the appellant bore the onus of proof. Again, a review of the record indicates that no attempt was made to discharge that onus and the matter effectively proceeded on the common ground, that the pipes had been uncapped.

[24] For instance and although there was reference on the appeal, to the absence of a Mr Studiman, as a witness in the prosecution case, Mr Thomas, a civil engineer employed by Brown Consulting and who provided design and contract administration services for the project and completed the conceptual erosion sediment control design, amongst other things[36], was called and through him and without objection, Exhibit 11 was tendered and he provided the following explanation in respect of part of the contents of that letter:

"And the last sentence of the large paragraph at the top of that page you say, 'this basin had not been intentionally compromised'? - yes.

Excuse me, 'and a combination of unintentional human error has resulted in a compromised outcome'? - - Mmm.

Could I just ask um you what you meant by that? - - What I meant by that was that as construction works proceeded there was a requirement to landscape the external batters of the basin. As part of those landscaping works and to avoid unnecessary rework, the installation of pipes through the embankment was necessary. The volume was achievable in the basin, however, the contractor had not blocked the outlets of the basin which resulted in sediment laden water leaving the site.

If the pipes had been blocked, what was the likely outcome in that instance? - - the basin - given the storm event the basin still would have overtopped, however, there was - it would have had more capacity than what - than what it did have which was effectively zero."[37]

[25] Otherwise, Mr Thomas explained that he was the superintendant of the project and Mr Studiman was his representative "attending to the day to day instructions".[38]

[26] The remaining contentions of the appellant are factually related. Each draws attention to what was criticised as a flawed investigation, particularly by way of sampling of the turbid water in the drainage channel. Only one sample was taken and that returned an analysis result of 600mg/l of suspended solids or contaminant.[39] The principal investigator and taker of that sample, Mr Rowlands, a civil engineer employed by the respondent, was cross-examined about the desirability of further sampling, particularly by reference to the available guidelines issued in that regard. However, he maintained his decision to only take one sample, both by reference to those guidelines and from a logical perspective, on the basis of his visual inspection of the drainage channel and his assessment of the apparently mixed and highly turbid appearance of the water flowing in that channel.

[27] In his evidence, Mr Rowlands described that:

(a) when he arrived and inspected the site, on 11 August 2010, he was surprised at the low level of water in the sediment basin and ascertained this was because of the water field inlets which had been installed within it and had allowed it to drain through the white PVC pipes and this was described both as "an obvious implementation error" and a "very obvious mistake";[40]

(b) he identified an absence of other erosion and sediment controls, upslope of the basin and such as might have minimised the concentration of contaminants that entered the basin;[41]

(c) that although the sample was taken at a location that may have been as much as 60 or 80 metres from the boundary of the property[42], visual inspection of the channel through vegetation and leading to and through the boundary line of the land and then into stormwater drainage into a wetland area (together with water collected from another drainage channel external to the land), indicated a continuing highly turbid discharge of water.[43]

[28] The appellant's contentions are based upon an analysis that, in order to prove the charged offence, it was necessary to establish not only that the turbid water that flowed through the channel contained, at the boundary line of the land, a concentration of suspended solids exceeding 50mg/l, but also that the water which came from the PVC pipes and allowed the escape of water form the sediment basin, also contained such a concentration. As it was understood, this analysis proceeded on the basis that the appellant's offending conduct or acts were those by which it made alterations to the sediment basin, which provided for the uncapped PVC pipes allowing the escape of water from the basin and directly into the channel.

[29] If that analysis is correct, then the absence of any sampling of the water referable directly to the flow from those pipes, may be of some significance. This is because, as has been noted, the evidence disclosed that the water containing the sediment and other solids and which came from the sediment basin and through the uncapped PVC pipes, was at or about the point it entered the channel which led to the boundary of the land and ultimately to the storm water drainage which in turn led to the wetland area, mixed with other water which came from a different area and which drained to the channel through a broad culvert.[44] On the evidence, that mixing of the sources of water occurred prior to the point at which Mr Rowlands took his sample and he sought to explain what he had done on the basis that his visual inspection of the situation and the position of the PVC pipes and what he described as a "culvert headwall", each draining into the channel from which he took the water sample, disclosed that:

"... the water coming out of the headwall was - was a much smaller flow. It was still slightly turbid, but - but more clear than the water coming out of the pipes. The majority of the flow was coming out of the two white pipes and it was highly turbid."[45]

And he went on to describe the channel depicted in the photograph at page 7 of the bundle in exhibit 13 as:

"A channel flowing through an area of - of retained vegetation within the development and the channels' full of highly turbid water."[46]

However and in cross-examination, he also explained that the culvert related to drainage from a different area of land to that which drained to the sediment basin and which was, partly a portion of retained vegetation and also partly a portion also subject to construction or development works conducted by the appellant. When asked if the water he saw being discharged from the culvert, was turbid or slightly turbid, he responded:

"Yes it was - it was very shallow flow so it was hard to gage... it was shallow when I made my observations and it was - it still appeared turbid... It was slightly turbid - yeah."

[30] In re-examination Mr Rowlands clarified that: in respect of the water he saw coming from the culvert:

"The assumption I made was that if anything, it would be reducing the concentration of suspending solids that were sampled in the channel downstream, compared to if I just sampled - or been able to sample the - the flow from the PVC pipes alone .... the flow from the culverts would have been cleaner than the flow out of the two pipes. That was the base - that was the assumption I made ... because the catchment that it was servicing, it was coming from that culvert, was largely treed."[47]

[31] It may be that, some explanation for the second aspect of the appellant's contention is to be found in the following passage of the cross-examination of Mr Rowlands, in respect of the particulars set out in the complaint:

"And particular 6 says that on 11 August water was released from the boundary of the land which contained a concentration of suspended solids measuring 600 mils, and entered storm water drainage outside the land. See that? - - yes.

Can you tell me where in the particulars, anywhere in the particulars, where you might have been relying upon those matters contained in photographs 11 onwards?- - Well, they all go to - towards the - the level of suspended solids which was released from the land.

But isn't your evidence that if the parts were closed off the solids would have been retained at the basin? - - Yes, correct.

Regardless of what happened upstream. That's your evidence, isn't it? - - That's a - that's a - that's part of it.

But that's the effect of why you prosecuted my clients, because the two white pipes weren't closed off? - - That - that was certainly the - the main cause of the infringement being issued, but I - I - I believe there also would have been defence even if - - - - - -

I - where we're charged with one offence? - - yes, it's the same offence of releasing the prescribed water contaminant. That if the basin - if the pipe's been blocked off and the basin had overtopped as it should have done, the concentration of that contamination would have still been in excess of what ought to have been by the lack of controls up the slope of the basin.

Did it overtop at any point? - - I don't know whether it overtopped or not. I doubt it would have because of the fact that it had the - the field inlet pits.

The field - these two white pipes?- - I was referring to the - the concrete grates that are the - the structures connected to the pipes.

But aren't you saying that they discharged through the white pipes? - - when I was there; correct.

And the field inlets all discharged to that one area is what you're saying, aren't you? - - correct.

All right. So, it still gets back to whatever occurred upstream was to be caught in these sediment pits? - - Correct.

All right. And we get back to the reason it didn't overtop on your version, if it didn't overtop, was because of the two white pipes? - - I believe that would have been the reason.

So that - on your version it didn't overtop, so it can only be the white pipes not being blocked off? - - I don't know whether it overtopped or not, but when I was there it was discharging - - - - - -.

I know you've said that you don't know whether it overtopped or not, so when you prosecuted you can't have been relying on it having overtopped, can you? - - I wasn't relying on it being overtopped.

So, it's the white pipes? - - It's the white pipes for the discharge, but the concentration of the contamination is also linked to the absence of upstream controls."[48]

[32] However, this particular aspect of the appellant's contention is not canvassed in the Magistrate's reasons, as it was not specifically raised with him.[49] Moreover, the contention raised in this court was based on a false premise. As the particulars of the charge made plain, it was concerned with the causation of a particular result, by the release of the prescribed water contaminant from the land. In the circumstances, that required only proof of the release, at the boundary of the land, of water that contained suspended solids in a concentration that exceeded 50 mg/l. By undertaking the construction or development work at the site, the appellant was generally responsible for compliance with the requirements of the EPA and the conditions in the development approval for that work, as far as they related to the appellant's conduct in performing that work. On the evidence in this case, that position was both clarified and reinforced by the contractual arrangements under which the appellant performed the work.

[33] Accordingly the appellant was necessarily responsible for its conduct in the performance of, that work might lead to any proscribed result. Therefore omissions, in the sense of failure to take appropriate steps to avoid or prevent such an outcome, may be regarded, as much as positive acts that may be identified as causative of such an outcome. More particularly and in relation to the specific circumstances of this case, the appellant would be liable for the result of causing or allowing the water emanating from the sediment basin to mix with the water from the culvert, irrespective of the respective contributions to the combined result, if the end result is that the water flowing through the channel and at the boundary of the land, had a concentration of suspended solids, that exceeded 50 mg/l.

[34] That conclusion is at the core of the appellant's first contention and in that regard, an obvious difficulty with giving any particular weight to the Magistrate's decision is that not only was there no specific finding that there had been such a release, at the boundary of the land, but the reasons also included the following:

"[46] The complaint avers that water was released from the boundary of the land which contained a concentration of suspended solids measuring 600 milligrams per litre and entered storm water drainage outside the land. There was a sample collection some 30-60 metres inside the boundary, which was 600 milligrams per litre. No water sample was collected on the boundary or outside the boundary. Thus, there has been a variance between a fact alleged in the averment and the actual evidence.

[47] A defendant to any prosecution has to be informed of the legal nature of the offence charged and the particular act, matter or thing alleged to substantiate the charge. This requires particulars of the time, the place and the manner of the defendant's acts or omissions.

[48] It is not an element of the offence alleged that the contaminated water released from the land had to have a particular concentration of suspended solids. The observation of the two experienced Council officers that the water was contaminated is sufficient. The evidence that has been led is sufficient to satisfy the charge. The error that has occurred is not that the defendant has been incorrectly charged with this offence. The particularisation of fact is in error on the fact that the water released from the boundary of the land was at the concentration alleged. This is to be distinguished from the situation where the complaint alleges a different offence to that which is established on the evidence. The defendant could not be in doubt as to the charge being brought. The complaint sets out the section of the legislation being relied upon and the offence particulars required to support the offence. It tells with reasonable particularity how the defendant is alleged to have broken the law."

[35] The first thing to note is that the matters referred to, were not the subject of any averment in the complaint, unlike the specific averment made in relation to any perspective issue under s 468 of the EPA[50]. Accordingly, there has been no suggestion and there is no issue, that arises as to the onus of proof in respect the particularised charge, otherwise[51]. That onus remained upon the prosecution in respect of all of these matters, including the element of unlawfulness, which, although expressed in s 493A(2) as providing stated exceptions to the general proposition that all relevant Acts are unlawful, stands in stark contrast to the succeeding provision in s 493A(3), (4) and (5), which expressly provide for defences that may be proved by a defendant.

[36] Secondly, it can be noted that the Magistrate's concern is really with the effect of the particular of the charge which asserted a concentration of solids measuring 600mg/l, at the point of the release of the water at the boundary of the land, when in reality it was obviously a reference to the evidence that a sample taken somewhere between 30 and 80 metres from that boundary and in a channel flowing to it, had such a concentration.

[37] Again there has been no suggestion otherwise, on this appeal and it is clear that in the circumstances of this case and in order to prove that the release of the turbid water was unlawful, the prosecution had only to prove that the concentration of solids, at the point of release of the water from the land, exceeded 50mg/l.

[38] However and at the trial, the defendant submitted that there had been a failure to prove the particularised concentration at the boundary line and therefore a failure to prove the charge beyond reasonable doubt. The prosecution response was to point out the requirements of schedule 9 of the EPR and the visual observations of the turbid nature of the water in the channel, up to and beyond the boundary line and concluded with the following submission:

"Ultimately, your Honour, in any event, I am not as - the prosecution's not bound by its particulars. If your Honour takes the view that the offence is proven at the point, absent proving 600 milligrams per litre, that's sufficient. The 600 milligrams per litre is not an essential element of the offence. The essential element is that there are suspended solid - a liquid containing suspended solids discharged from the boundary of the land. In my submission, that has been proven beyond reasonable doubt."

[39] This was unfortunate, in that there was no attention paid or drawn, to the element of unlawfulness and the need for proof of at least a concentration of 50mg/l of solids in the released water, in order to satisfy that element. This difficulty is incorporated in paragraph [48] of the Magistrate's reasons, and notwithstanding other reference in those reasons to the requirements of condition 29 of the development approval, the specific requirements as to proof of the element of unlawfulness, were not expressly noted or apparently adverted to.

[40] Accordingly this means that little or no weight can be given to the Magistrate's decision and this court must, if it is able to, review the evidence and draw its own conclusions.

[41] As to the aspect of visual inspection of the water is concerned, it can be noted that Mr Rowlands' evidence was, in addition to his observations of water which he described as "turbid water", flowing in the channel and which he particularly sourced to the flow from the white PVC pipes (as already noted above), that the sample of the water taken in a clear plastic bottle was:

"... highly turbid - it obviously had - had significant amount of sediment in it."[52]

Then and after being referred to condition 29 and describing it as "a common condition", he was asked and responded:

"Is there a visual way as opposed to a testing way you can determine whether there are 50mg per litre of concentration? - - yes, the - the - the visual way that we - we teach site operators to - to check is if you hold up an empty coke bottle, you can just see your - your fingers through the other side, at 50 milligrams per litre.

And do you recall whether the water in photograph - sheet 9 would have passed that visual test? - - I do recall and, no, it was - it was highly turbid. There was - was no way you could (sic) your fingers through the other side of the bottle."[53]

[42] In cross-examination and in the context of explaining the inspections made by he and Mr Salt, of the area depicted in the photograph on page 16 of the bundle in exhibit 13 and which depicted the side of a culvert under Havana Road West, on the opposite side of the road to that nearest to the boundary of the land, and into which the channel leading to the boundary of the land, drained after it became mixed (externally to the land) with other sources of drainage not related to any responsibility of the appellant[54] and after identifying that photo as depicting a "catchment pit" on that side of the culvert, there was the following exchange:

"And do we also have a similar catchment pit on the opposite side, that is the side that's got the culvert shown? - - It's not depicted, but on - there would be, it's a sag point in the road - there would be a - a pit - - - - - -

A what? - - it's a sag point in the road, so you would expect there'd be a pit on the other side, yes.

Now, did you check for arguments sake what water, or what was able to drain into those two pits? - - yes. I'll - I'll just point out that those - - those pits are downstream of where the sample was - was -was collected, but; yes, we did drive all the way up the - to the end of Havana Road West to - to see if there was any potential source of - of sediment from there and we didn't identify anything at the time.

Well, you'd have sediment from the road? - - You could have - have small concentrations of - of sediment.

And you don't know as at the date with which my client's charged what in fact was on that road at that point, whether it'd been contaminated by trucks? - - I can only - - - - -

Dirt from trucks? - - Only what we saw of - at the time of the inspection which - well, there was no obvious sign of sediment contamination at that time."[55]

Then and after questions establishing that Mr Rowlands' inspection was on the 11th August 2010 and that he did not know what had occurred prior to his attendance and his acceptance otherwise that there had been a rainfall event involving approximately 76 millimetres on the evening of the 10th and into the early morning of the 11th, the questioning continued:

"Alright. So, to put it simply, to suggest that might well be turbid water in photograph 16 that we can see, you didn't test it? - - no, the - the only sample we collected was - was upstream of these culverts. We didn't test the water downstream at the culverts.

And you knew at that point, when we see photograph 16, that there are other intervening possibilities.? - - that's exactly why we didn't take a sample at 16, because of the - the potential for it to be contaminated with other - other sources.

So you're not suggesting that your evidence earlier about - that that's clearly turbid water necessarily comes from the subject site where you took the sample because there are other intervening circumstances? - - The turbid water - - - --

Correct? - - - --- I saw leaving the site ended up in this location and there - there could have been other contributors as well - ---

You - the turbid water you saw leaving the site, at what location do you say you saw that? - - I saw it - it flow in under - underneath the road, from one side to the other and - and leaving the site at this location. When did you say that? - - I said it just now.

Are you telling us now that you inspected the area at Havana Road West on both sides of the carriage way? - - Yes, we did, and we - from the - from the retained vegetation - ---

Who's 'we'? - - my - my colleague - or photograph - ---

I'm sorry? - - Photograph 16. My colleague was Steven Salt. He and I were in - were in the vehicle together.

In the vehicle? Did you get out? - - yeah, we got out for that photograph, that's right. Question: For that one photo? - - No, I - I explained before that we drove up into the community to - at the - to the end of Havana Road West to - to see what was - what was occurring up there, and then we came back and we stopped the vehicle and - and we got out to - to take the photographs.

Photographs. I want to know how many photographs you took of Havana Road West, that culvert? - - One, I believe.

So you concentrated on that side of the culvert where the photograph was taken? - - we did, because we'd already sampled on the - - the upstream side of the culvert.

But you'd sampled, what, 60 metres away, hadn't you? - - I'm not sure of the distance exactly but there's a clear line of site.

Well - - - - ? - - It's a straight channel to the - it was - I was just going to say it's a straight channel linking - - - - -

Yes? - - - - - to Havana Road West. Question: It's in vegetation, isn't it? - - It's in vegetation but it's - it's a straight channel.

There's vegetation in the channel, isn't there? - - There's vegetation adjacent to the channel.

In the channel itself? - - well, we couldn't really see that because of the fact that the - the water was so turbid. It was - it was definitely vegetated - - - - -

Mr Rowlands, you've taken some photographs of what your activity was on the site, haven't you? - - Correct.

Right. And is it fair to say that you - and I'll go to the photograph so we don't have to - if we go to photograph 7. Is it fair to say that that point on photograph 7 is the farthest point from the sediment point that you stood - in other words, I'll rephrase it this way: you didn't progress further into the vegetation or conservation area on site? - - I did walk further in but I don't have any photographs of - of being further in.

You did walk further in? Have you recorded that anywhere in your statement? - - No. No, I - I don' think so."[56]

[43] Mr Salt confirmed that he was responsible for taking photographs when he and Mr Rowlands inspected the land, at about 11.30am on 11 August 2010. In that regard it can be noted that there is no photograph of the channel depicting its appearance at or near to the boundary of the land and the only depictions of the channel and the water flowing in it, are those on pages 6, 7 and 8 of the bundle in exhibit 13. Those pictures do, however, depict what appears to be correctly described by the witnesses as a channel of flowing and turbid water. It can also be noted that the photograph at page 9 of that same bundle, depicts the bottle of turbid water which is opaque rather than translucent in appearance, as held in the hand of a person in the photograph and obscuring rather than allowing any observation of the features of the hand behind the bottle.

"And in terms of your observation along the channel - ---? - - Yes.

- - - - - How far down the channel did you progress? - - Probably to the point where Leon is standing in - on sheet 8, and that - - - - -

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