Woollahra Municipal Council v. Atlen Pty Ltd [1998] NSWLEC 135

The prosecutor's case is summarised in the written submissions by stating that the defendant, Atlen Pty Limited, was responsible for the installation of plumbing and drainage works on a site having a frontage to New South Head Road and a rear alignment to Edgecliff Road on the 29 January 1997, and that accordingly it had the necessary control of the site to fix it with liability for the escape of sand and other material from the site into the gutters of New South Head Road and beyond, into a drainage or stormwater system which ultimately leads to Sydney Harbour. The allegation is that the defendant had the necessary control as the contract builder engaged to carry out works on the site pursuant to a building approval granted by the prosecutor. It is alleged that the defendant permitted the pollution event on 29 January 1997 and failed, notwithstanding its alleged knowledge of the problem, that is an existing problem with stormwater pipes on the site, to prevent the pollution. It is further alleged that a m odified stormwater pipeline failed to operate efficiently and that its defective nature permitted matter on the site to descend into the gutters in New South Head Road.

The primary evidence upon which the prosecutor relies to establish the necessary fact of control of the site is a written building contract entered into between the defendant, Atlen Pty Limited, and a company, Opportune Pty Limited. The Court's attention has been drawn to a number of clauses within that contract one of which, as might be expected in a contract of that nature, provides that the builder shall have exclusive and uninterrupted possession of and access to the site for the performance of the contract. The contract states that the date of commencement is to be 23 January 1997. The evidence discloses, however, that the written form of the contract was not entered into until a date in February 1997, and that at the date of the alleged offence on the 29 January 1997 the final terms of the contract had not been negotiated.

One of the conditions of the approval to the building work issued by the prosecutor was that the applicant for the approval of the works under the Local Government Act should be responsible for the cost of relocating council's stormwater drainage pipe through the property. It was a further condition of the building approval that the prosecutor be provided with details of the proposed sediment and erosion control plan for the site.

The Court has the benefit of an affidavit sworn by Raymond Touma, a director of the defendant, and it has heard oral evidence from him. The only witness called by the prosecutor was Peter Morison who is the Environmental Protection Coordinator employed by the prosecutor. Mr Morison inspected the site and its environs, particularly in New South Head Road on 29 January 1997, and observed road crews engaged by the council removing sediment from the road directly outside the premises. He also agreed that other debris was in the roadway, including bricks. He followed the trail of sediment up New South Head Road and he identified the source as being from within the premises known as 335 New South Head Road, Double Bay. Those premises are the subject of the contract to which I have already referred.

Mr Morison's observations were made primarily at a time after the time it is alleged the offence occurred. In other words the material had already been washed into New South Head Road as a consequence of the flow of water across the site. Mr Morison recognised that the primary cause of the flow of water across the site, to the extent that material appeared to have been washed from the site into New South Head Road, was the failure of an existing stormwater pipe which flowed under a tennis court, and presumably other parts of the site. He also acknowledged that it was his understanding that some damage may have been caused to the stormwater pipe during demolition of an existing tennis court.

Mr Touma denied any responsibility for the demolition work. He explained that although the written contract executed in February made references to demolition work, a separate contract had been made with a company other than Atlen Pty Limited for the removal of former embassy buildings on the site, including the tennis court. It was the fact, however, that the contract with his company did encompass some demolition work, none of which up to 29 January had been attempted or commenced.

Mr Touma explained to the Court that on 14 January 1997 he had been informed that stormwater pipes on the site required repair. At the request of a third party he telephoned a representative of a company, AAA Plumbing, which the defendant employed from time to time to carry out contract plumbing work, and requested that representative, Mr Sam Touma, to see what they needed done and to do it for them. In fact Mr Raymond Touma himself attended at the site on 20 January and 21 January, but there is no evidence to suggest that he was present on that day for any reason which appears to be directly associated with the events of 29 January. The evidence establishes that the plumber did undertake work on the site and that the work was finished on or about 24 January 1997. The work involved installation of a silt trap and some pipes in an area which the Court accepts was unrelated to the stormwater pipes which had suffered damage.

It is alleged by the prosecutor that as a consequence of Atlen's association with the site through Mr Raymond Touma, and the work carried out by AAA Plumbing, through Mr Sam Touma, that the company had the necessary knowledge of problems associated with the site. This knowledge is alleged also to have arisen as a consequence of the arrangements made with Opportune Pty Limited for the building works to be carried out. It is alleged, therefore, that Atlen had the necessary control to fix liability upon it for the polluting event which is alleged to have occurred on 29 January. It is also alleged that because it was actively involved in earthworks on the site prior to 29 January, it had a responsibility for the stormwater drainage system. It is further alleged that the lack of appropriate attention by Atlen Pty Limited created direct and vicarious liability for the pollution event which occurred on 29 January.

The prosecutor's case has a number of difficulties. Section 16(1) provides simply that a person shall not pollute any waters. Pollute is comprehensively defined in s 5 of the Act. It is not difficult to reach the conclusion that the matter which was observed by Mr Morison on 29 January in and about the site, and in particular in New South Head Road, is matter which is relevantly referred to in the definition of pollute. Subsection (2) of s 16 of the Act provides that a person shall be deemed to pollute if the person places any matter in a position where it falls, descends, is washed or blown or percolates, or is likely to fall, descend, be washed, be blown or percolate into any waters.

Although the offence is one of strict liability, a prosecutor nevertheless bears the onus of establishing an act of placing matter either directly or vicariously in a way which answers the description of pollute where it is used in s 16. The prosecutor's case is not a strong one, in that the evidence does not establish directly what event actually occurred on the site which caused the material to be washed from the site into New South Head Road. Mr Morison had an understanding that it was caused by the failure of the council's stormwater pipe which ran through the site. Mr Raymond Touma shared that understanding.

The evidence of Mr Touma is that the pipes laid by AAA Plumbing had already been covered over. Furthermore the area adjacent to the site of the works carried out by AAA Plumbing fell away from that point to the east. The flow off the site observed by Mr Morison, or at least the consequences of the flow off the site observed by Mr Morison, was clearly a flow which occurred in a northerly direction towards New South Head Road.

There is no evidence to even suggest that the material observed by Mr Morison was material which had been placed on the site either by being brought on to the site or as a consequence of excavation and stockpiling by the actions of AAA Plumbing. The involvement of AAA Plumbing on the site was a minor event of no consequence in terms of the general major activity of demolition which was occurring on the site at the time. Although it might be accepted that some of the work carried out by AAA Plumbing was ultimately for the benefit of the defendant, as the contractor, to carry out the building work, it was not in any sense an action taken in any material way on behalf of Atlen Pty Limited who at that time had no contract to do anything. The highest point to which the prosecutor's case can be taken would show only that Atlen Pty Limited facilitated some assistance to the contractor who was already on the site to overcome a problem which had occurred in respect of stormwater pipes. The evidence is that the ass istance which was requested involved obtaining pipes which at the time of the request were said to be urgently required, although at the time of the event on 29 January, Mr Touma told the Court, those pipes had not been used.

Although the contract entered into by the defendant indicated that the commencement date of the contract was 23 January 1997, there is no doubt that the contract did not operate from that date. Mr Touma explained that the reason the date of 23 January 1997 was adopted was to do with insurance to cover the circumstance of AAA Plumbing carrying out the work that it did at about that date.

The contract contains a special condition in Schedule 2 which provides:-

All demolition and all site clearing including old fences other than the St Neots building is not included in this contract.

Mr Touma told the Court that at all relevant times associated with this alleged offence, the St Neots building was still standing.

The Court is not satisfied that Atlen Pty Limited was responsible for the site or in control of the site, either directly or vicariously, in any relevant way, on 29 January 1997. No evidence has been given which supports the prosecutor's case that the resulting wash of matter into the gutters and drains on 29 January 1997 was as a consequence of any action or inaction on behalf of the defendant company. There is no evidence which would support a contention that any material was washed from the particular area where AAA Plumbing had carried out the work, which I have already described, prior to 29 January. The Court accepts that the most probable cause of the occurrence was the bursting of a stormwater pipe and that the bursting of that pipe caused a significant flow of water across the site and that material was washed away by that flow of water, in particular from an area adjacent to and below the existing tennis court which was in the course of demolition. If that be the cause of what occurred, then the re is no evidence to implicate the defendant in that event. The prosecutor did not call any evidence from either the contractor who was carrying out the demolition work on 29 January or the developer of the site which had entered into the contract with Atlen Pty Limited, namely Opportune Pty Limited. The Court is entitled to infer that evidence from either the developer or the demolisher would have rendered no assistance to the prosecutor's case. The only direct evidence the Court has is from Mr Raymond Touma. He denied responsibility for the site on the day in question. Furthermore he provided a logical, rational and believable explanation for the nomination of the 23 January as the commencement date for the contract. The Court accepts that the real and effective date for the commencement of any relevant control of the site on the part of the defendant was from the date of signing of the contract on 20 February 1997. Even if the actions of AAA Plumbing were such that they amounted to the commission of the of fences charged, which the prosecutor has not proved, there is no evidence which would attach vicarious liability to the defendant, Atlen Pty Limited, for the actions of AAA Plumbing prior to 29 January. There is a logical alternative explanation for what occurred on 29 January which is consistent with the innocence of the defendant company. Any doubt should in any event be resolved in favour of the defendant company.

The prosecutor has not proved its case against the defendant company. Accordingly the defendant is entitled to an acquittal. The offence has not been proved. The summons is dismissed.

Having regard to the provisions of s 52 of the Land and Environment Court Act, the Court has a discretion to make an order whereby the prosecutor is to pay the defendant's costs, and subject to any submission by Mr Rigg which persuades me that the discretion should not be exercised in favour of the defendant in the circumstances, I propose to make an order that the prosecutor pay the defendant's costs. If the costs are not agreed and if no agreement is reached, then the costs shall be determined in accordance with the regulations.

RIGG: I have no submissions to make in that regard.

HIS HONOUR: The formal orders of the Court are:-

2. I order the prosecutor to pay to the defendant such costs of the defendant as may be determined by agreement between the prosecutor and the defendant, or if no such agreement can be reached, in accordance with the regulations pursuant to s 52(2) of the Land and Environment Court Act 1979.

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