Ryding v Kempsey Shire Council

Ryding v Kempsey Shire Council - [2008] NSWLEC 306 - NSWLEC 2008 case summary — Zoe

[8]

JUDGMENT 1 Her Honour: On 12 March 2008, the Local Court at Kempsey found the Appellant guilty of failing to pay the prescribed fee within 30 days of being given a clean up notice issued under s 91 of the Protection of the Environment Operations Act 1997 (the POEO Act). The notice required erosion control measures to be carried out at a property at Gregory Street, South West Rocks (the property). The offence was a breach of s 94(4) of the POEO Act. The Local Court found the charge proved but recorded no conviction against the Appellant pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act) on the basis that the Appellant enter into a good behaviour bond for 12 months. 2 The Appellant has appealed to this Court pursuant to s 31(1) of the Crimes (Appeal and Review) Act 2001 (the Appeal and Review Act) against both the conviction and the sentence. Subsections 37(1) and (2) of the Appeal and Review Act provide: (1) An appeal is to be dealt with by way of rehearing on the basis of certified transcripts of evidence given in the original Local Court proceedings, except as provided by section 38. (2) Fresh evidence may be given, but only by leave of the Land and Environment Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given. 3 Section 39 of the Appeal and Review Act provides: 39 Determination of appeals (1) The Land and Environment Court may determine an appeal against conviction: (a) by setting aside the conviction, or (b) by dismissing the appeal. (2) The Land and Environment Court may determine an appeal against sentence: (a) by setting aside the sentence, or (b) by varying the sentence, or (c) by dismissing the appeal. … Appeal against conviction 4 While no conviction was recorded against the Appellant, for the purpose of the appeal the Appellant has the same right as if he had been convicted of the offence, s 10(5) of the Sentencing Procedure Act. The order that the bond be imposed pursuant to s 10(1)(b) of the Sentencing Procedure Act is also a sentence for the purpose of the Appeal and Review Act by virtue of the definition of sentence in s 3(1) of the Appeal and Review Act. The nature of a rehearing in an appeal of this nature was identified in Cliftleigh Haulage Pty Ltd v Byron Shire Council [2005] NSWLEC 692 at [17]-[20] by Talbot J. His Honour noted at [18]: In Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1998) 45 NSWLR 661 James J after referring to Camilleri's Stock Feeds [Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683] reiterated at 678 …where… there is a challenge to correctness of the trial judge's ultimate conclusion, it is not incumbent on the appellant to show that such conclusion was not open to the trial court in the sense of being a conclusion to which on the evidence, it should not have come. It is merely necessary to persuade this Court on a review of the evidence that guilt is not, to the necessary standard, proved by the prosecutor.

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I then entered the site with Mr Davies and approached one of the workmen and said words to the following effect: "Who's in charge here?" The workman directed us to the defendant Mr Richard Ryding. 5. I had a conversation with Mr Ryding in words to the following effect: I said "We are Kempsey Shire Council Officers. Is it okay for us to come onto the site and take photos?" He said "Yes". 6. Mr Davies and I then walked around the site with Mr Ryding. I saw Mr Davies taking photographs at the site. 7. As a result of what I saw on site I suspected that it was likely that in the event of wind or rain the disturbed and upturned soil was likely to be washed off the site into neighbouring land and/or into the nearby waterway. I was a particularly [sic] concerned about the disturbed and upturned soil escaping from the south west corner of the site. After forming this suspicion I then had a conversation with Mr Ryding in words to the following effect: I said "There are no controls in place to stop that earth washing away if it rains". He said "I'll do that after we have finished the work. I'm going to put up controls and use geo-tech style fabric. I am also going to mulch that vegetation." I said "Those controls needed to be in place before to you [sic] did these works. I am issuing you with a verbal clean-up order. I don't think I will fine you but that will depend of what my manager says. I'll follow this order up with a written clean-up notice." 12 He issued a written clean up notice to Mr Ryding the Appellant on 17 August 2006. The clean up notice stated: I, Grant Nelson, an authorised officer under Section 187 of the Protection of the Environment Operations Act 1997 ["the Act"], conducted an inspection in accordance with Section 196 of the Act, of the premises to which this notice refers at 3:00 pm on the 16 August 2006 and observed areas of vegetation clearing on the subject premises. The resultant exposed material (soil/earth) is in such a position as could pollute adjacent properties. No erosion and sediment controls were in place, to prevent such a pollution incident from occurring. Kempsey Shire Council, being the Appropriate Regulatory Authority under the Act, hereby directs that you, Richard Ryding (as the person responsible for the vegetation clearing) or a nominated representative, take the following clean-up action by the stated times and dates. This direction considered a follow-up to directions verbally provided to you during the site inspection on the 16th August 2006: (a) Install and maintain sediment control fencing and any other controls necessary to prevent soil/exposed earth from leaving the premises or entering the local stormwater system by 5.00 p.m. Friday 18 August 2006. Guidelines for sediment and erosion control are contained in Council's DCP no. 36 Guidelines for Engineering and Subdivision. Relevant material has been attached for your information. Note: All sediment control fencing is to be trenched into the ground a minimum of 200mm. (b) To ensure long term stability of the disturbed area you shall seed the disturbed area with a quick growing grass seed mix, alternatively the area shall be suitably mulched. This action shall be completed by 5.00 p.m. Friday 18 August 2006. …

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(b) No reasonable suspicion of water pollution - jurisdictional fact 18 A further jurisdictional fact said not to be satisfied by the Appellant was that there was no basis on which Mr Nelson could have reasonably suspected that pollution was likely to occur when he visited the property on 16 August 2006 and when he issued the clean up notice on 17 August 2006. There was no rain on 16 August 2006. The Appellant told Mr Nelson that he was going to put up controls and use geo-tech style fabric and mulch when the work was completed. The clearing work was almost complete when Mr Nelson came onto the site. The measures required by the clean up notice were undertaken after Mr Nelson left the site on the same day. It should have been obvious to Mr Nelson that the works and therefore the erosion control measures would be implemented either that day or shortly thereafter. The Appellant told Mr Nelson that it was impossible to erect sediment control fences when the whole property was covered by camphor laurel trees (transcript p 28). At the time the clean up notice was issued on 17 August 2006 there was no possibility of a pollution incident occurring because all the erosion control measures specified in the notice were in place. 19 In order to have a reasonable suspicion Mr Nelson had to be aware of all reasonable facts, including by making proper inquiries about what and when erosion control measures were to be implemented. He failed to ask the Appellant when he was going to implement erosion control measures. If he had asked he would have been told that was to be done that day. 20 The Respondent submitted that there was clear evidence on which Mr Nelson was able to form a reasonable suspicion that a pollution incident had occurred, as defined in the POEO Act. It includes circumstances where there is likely to be an escape of a substance as a result of which pollution has occurred or is likely to occur. Pollution includes placing matter where it is likely to be washed or blown into any water, drain or gutter designed to receive stormwater. "Likely" was held by the Court of Appeal in Pace Farm Eggs Products Pty Limited v Newcastle City Council (2006) 151 LGERA 260 at [54] - [69] per Handley JA, Kirby J concurring, to mean a real and not remote chance or possibility, rather than more probable than not. That Mr Nelson was able to reach such a suspicion is clear from his witness statement where he states what he saw when he arrived at the property and as shown in the photographs taken on 16 August 2006 by Mr Davies in exhibit 3. There were large areas of exposed soil and fallen vegetation including trees. The site was sloping, steeply in some places and a waterway and drain were in close proximity. There were no measures in place to control erosion when he arrived. He stated that he considered: it was likely that in the event of wind or rain the disturbed and upturned soil was likely to be washed off the site into neighbouring land and/or into the nearby waterway. (exhibit 1). His evidence should be accepted in the absence of any challenge in the Local Court. The measures put in place after Mr Nelson left the property support the measures required in the clean up notice. The soil had been placed so that it was likely to be washed or blown into the drain and/or waterway and there was a set of circumstances where it was likely that soil would escape to the drain. 21 It is Mr Nelson's intentions when issuing the clean up notice that are relevant not those of the Appellant. If the Appellant's argument is accepted anybody could avoid a clean up notice simply by promising to do the necessary work. The argument that it was impossible to erect a sediment fence earlier is irrelevant because the relevant time was when Mr Nelson inspected the site on the afternoon of 16 August 2006 and it was not impossible at that stage.

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Finding 22 I essentially agree with and adopt the Respondent's arguments as set out at par 20 - 21. Further, I would expect that the formation of a reasonable suspicion of a pollution incident must be arrived at close to the time of issuing a clean up notice. Whether that has occurred must depend on the circumstances of a particular case. 23 The decision to issue the notice was made by Mr Nelson at 3pm on 16 August 2006 before the erosion controls were put in place on the property. That is reflected in the opening paragraph of the notice. In Mr Nelson's witness statement, extracted in part at par 11, he issued a verbal clean up order on 16 August 2006 and said that he would follow that order up with a written clean up notice. Verbal clean up orders are provided for by s 93 of the POEO Act. Section 93(4) states that such directions have the same effect as a written notice. He issued the written clean up notice the subject of these proceedings on 17 August 2006. While there was some debate about whether the verbal direction on 16 August 2006 was a valid clean up notice because it lacked a time frame in which to do the work, I do not need to resolve that issue. Mr Nelson issued a verbal order, confirming that he arrived at a reasonable suspicion that a pollution incident as defined in the POEO Act would occur at 3pm on 16 August 2006. That suspicion was the foundation for issuing the written clean up notice the next day. There is no evidence that Mr Nelson knew the work had been completed when he issued the written notice on 17 August 2006. The Appellant did not tell him. There was no obligation on him to further enquire after the visit on 16 August 2006 about whether measures had been implemented. The Appellant is unsuccessful on this ground. (ii) Failure to accord procedural fairness 24 In the course of oral submissions the Appellant's counsel also relied (without notice) on an additional ground of failure to accord procedural fairness, relying on Cauchi. In Cauchi McClellan J held that a s 91 clean up notice was invalidly issued because procedural fairness had not been accorded to the recipients of the notice. The recipients were not told that the council intended to issue a clean up notice so that they could make submissions before that occurred. The lack of procedural fairness alleged by the Appellant was Mr Nelson failing to ask the Appellant when the erosion control measures of installing sediment fences and mulching were intended to be put in place.

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Finding 25 I agree with the Respondent's submission that there was no lack of procedural fairness in this matter. Whether there is a breach of procedural fairness must always depend on the particular circumstances and the statutory context for the issuing of clean up notices. That context was usefully discussed in Cauchi at [24] - [25] where his Honour noted that there is no right of appeal against a clean up notice but that it could be applied in a range of circumstances including emergency situations. McClellan J also stated at [53] that he was not establishing a statement of general application in relation to the obligation to accord procedural fairness because of the wide range of circumstances in which such notices are issued. I consider the circumstances of that case are quite different to this matter. In Cauchi very large amounts of fill were brought on to a property over an extended period which was very costly to remove. This case concerns straightforward erosion control measures which the Appellant told Mr Nelson he intended to implement at the end of the job. 26 In this case according to Mr Nelson's witness statement set out in part at par 11, Mr Nelson attended the site and saw it was in a state which gave rise to a reasonable suspicion that pollution was likely to occur. He spoke to the Appellant and raised his concerns with him. The Appellant had the chance to respond and did so. The circumstances do not suggest there was a further obligation on Mr Nelson to inquire when the erosion control measures would be put in place. It is not obvious that even if he had and was told it would be done that day that would suggest he should not have issued the clean up notice. The effect of the notice is to require preventative action in a certain time frame. If the Appellant was going to do the work anyway it placed an obligation on him to do it in a certain time. If the Council officer has formed a reasonable suspicion of a pollution incident occurring then he is able to issue a notice if he considers it necessary to do so. 27 The POEO Act does not specify any particular procedures must be followed subject to the general requirement that procedural fairness must be accorded. There is no obligation on Mr Nelson to provide an opportunity to the Appellant to undertake the measures and return to establish that these have been undertaken before deciding to issue a notice. Such an obligation would place an unworkable burden on local council officers exercising their powers to issue a clean up notice. 28 To the extent there is an unreasonable burden placed on the recipient of the clean up notice by the imposition of the administrative fee that can be alleviated by applying for time to pay or for a fee waiver under s 94(3). The Appellant is unsuccessful on this ground.

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Appeal against sentence 33 The Appellant also argued that the sentence imposed by the magistrate was too harsh and asked that the sentence be set aside. His counsel argued that no behaviour bond should be imposed. The offence was trivial and there is no evidence of environmental harm. The Appellant wanted to engage in a collateral attack on the clean up notice because he did not believe it should have been issued. 34 The Respondent referred to sentencing principles in s 3A of the Sentencing Procedure Act, Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 and s 241 of the POEO Act which identifies matters to be considered in imposing penalty. The maximum penalty is 200 penalty units under s 94 of the POEO Act, $22,000 as one penalty unit equals $110 under s 17 of the Sentencing Procedure Act. This is a substantial penalty demonstrating the legislature does consider it is important. There is no environmental harm caused by the offence, which is an objective and mitigating factor. However in terms of the Appellant's state of mind, he deliberately chose not to pay the fee. Nor did he apply to waive the fee despite this being referred to by Mr Nelson on 18 August 2006 in conversation with the Appellant. There is a need for deterrence in relation to upholding the integrity of the planning and development system; see Advanced Arbor Service Pty Ltd v Strathfield Municipal Council [2006] NSWLEC 485. 35 Subjective factors which favour the Appellant are the lack of prior convictions from which the Court may infer he is of good character. He has not shown remorse however. Further, the Appellant could have avoided committing the offence by paying the fine or applying for it to be waived. Finding on sentence 36 The Appellant has not placed before me any material specific to the sentencing considerations identified in s 21A of the Sentencing Procedure Act or in s 241 of the POEO Act. It is agreed there has been no environmental harm caused as a result of the offence. Essentially his counsel has made brief submissions that the magistrate imposed an unnecessarily harsh sentence because the offence is trivial. While I must consider this matter anew in this appeal it is instructive to consider the magistrate's reasoning, particularly as there is no material before me that was not before the magistrate. The magistrate's reasons for imposing the good behaviour bond of 12 months was that the Appellant was continuing to undertake similar work and an element of deterrence was necessary. "The intention… is to regulate and ensure that he complies with EPA requirements throughout the business that he conducts in this area" (transcript p 39). 37 There is nothing presented to me by the Appellant which suggests I should overturn the sentence imposed by the magistrate. As submitted by the Respondent the maximum penalty does suggest the offence is not trivial albeit that the amount of the clean up notice administrative fee is relatively small. The aim of clean up notices is clearly to require prompt action to be taken to protect the environment and to enable a regulatory authority such as local council to cover the cost of issuing such notices. The notices are an important part of the regulatory framework for environmental protection under the POEO Act. There was a deliberate decision by the Appellant not to pay the fee. He continues in the same area of work as gave rise this offence. 38 There is utility in the magistrate's decision to require a good behaviour bond of 12 months in these circumstances and I do not consider it is harsh. An order discharging the person on condition of the imposition of a good behaviour bond under s 10(1)(b) of the Sentencing Procedure Act may be made if the Court is satisfied under s 10(2) that it is inexpedient to inflict any punishment other than nominal punishment (subsection (a)) or that it is expedient to release the person on a good behaviour bond (subsection (b)). 39 Another matter suggesting I should not reduce the sentence imposed is that the Appellant did not apply for a waiver of the administrative fee as provided under s 94(3) of the POEO Act. This was specifically referred to by Mr Nelson in a conversation with the Appellant on 18 August 2006. It is also stated on the last page of the clean up notice he received. If his primary objection to the notice was the payment of the administrative fee, as his counsel submitted, that was an obvious avenue he failed to avail himself of. There is no explanation of why he did not apply for a waiver. Rather he has pursued a collateral attack on the notice as a point of principle and has been unsuccessful.

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