Secretary, Department of Planning, Industry and Environment v Wollongong Recycling (NSW) Pty Ltd [2020] NSWLEC 125

Land and Environment Court New South Wales

Medium Neutral Citation: Secretary, Department of Planning, Industry and Environment v Wollongong Recycling (NSW) Pty Ltd [2020] NSWLEC 125 Hearing dates: 19 August 2020 Date of orders: 07 September 2020 Decision date: 07 September 2020 Jurisdiction: Class 5 Before: Preston CJ Decision: The Court makes the following orders: (1) Wollongong Recycling (NSW) Pty Ltd is convicted of the offence against s 76A(1)(b) and s 125(1) of the Environmental Planning and Assessment Act 1979 as charged. (2) Wollongong Recycling (NSW) Pty Ltd is fined $36,000. (3) Pursuant to s 122(2) of the Fines Act 1996, one half of the fine imposed by order (2) is to be paid to the Secretary, Department of Planning, Industry and Environment (the prosecutor). (4) Wollongong Recycling (NSW) Pty Ltd is ordered to: (a) at its expense, cause a notice in the form of Annexure A to this order, at a minimum size of 9cm x 12cm, to be placed within the first 10 pages of: (i) Illawarra Mercury, within 28 days of the date of this order; (ii) Inside Waste, within 60 days of the date of this order; (b) within 28 days of the date of this order, cause a notice in the form of Annexure A to this order to be placed on the website https://www.bingoindustries.com.au/news (5) Within 75 days of the date of this order, Wollongong Recycling (NSW) Pty Ltd is to provide to the prosecutor a complete copy of the pages of the publications and website in which the notices have appeared pursuant to order (4)(a) and (b). (6) Pursuant to s 257B of the Criminal Procedure Act 1986, Wollongong Recycling (NSW) Pty Ltd is to pay to the Registrar of the Land and Environment Court, for payment to the prosecutor, the prosecutor's costs of the proceeding in the amount of $26,000. Catchwords: OFFENCES AND PENALTIES – sentence – carrying out development in breach of development consent – waste facility – condition limiting quantity of waste received per year – waste received exceeded limit – low objective seriousness – no environmental harm – no recklessness or negligence proven – limited but unknown financial gain – no foreseeability or practical measures to prevent harm – control over causes of offence – subjective circumstances of offender – no prior convictions – early plea of guilty – remorse for offence not proven – limited assistance to authorities – fine – moiety of fine – publication order – costs order Legislation Cited: Crimes (Sentencing Procedure) Act 1999 ss 21A, 22 Criminal Procedure Act 1986 s 257B Environmental Planning and Assessment Act 1979 ss 76A, 125, 125B, 9.56 Fines Act 1996 s 122 Protection of the Environment Operations Act 1997 ss 64, 250 Protection of the Environment Operations (Waste) Regulation 2014 Cases Cited: Boughey v The Queen (1986) 161 CLR 10 Carlino v Leichhardt Municipal Council (2005) 144 LGERA 235; [2005] NSWLEC 198 Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114 Council of the City of Sydney v Adams [2015] NSWLEC 206 Director General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 Environment Protection Authority v Ampol Ltd (1993) 81 LGERA 433 Environment Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90 Environment Protection Authority v Minto Recycling Pty Ltd [2019] NSWLEC 193 Environment Protection Authority v Mortdale Recycling Pty Ltd [2019] NSWLEC 106 Environment Protection Authority v Waste Recycling and Processing Corp (2006) 148 LGERA 299; [2006] NSWLEC 419 Environment Protection Authority v Whitehaven Coal Mining Ltd [2019] NSWLEC 27 Environment Protection Authority v Wollondilly Abattoirs Pty Ltd & Davis [2019] NSWCCA 312 Environment Protection Authority v Wyanga Holdings; Environment Protection Authority v Cauchi [2015] NSWLEC 78 Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242 NSW Sugar Milling Cooperative Ltd v Environment Protection Authority (1992) 75 LGRA 320 R v Burke [2002] NSWCCA 353 R v XX [2017] NSWCCA 90 The Queen v De Simoni (1981) 147 CLR 383 Category: Sentence Parties: Secretary, Department of Planning, Industry and Environment (Prosecutor) Wollongong Recycling (NSW) Pty Ltd (Defendant) Representation: Counsel: Mr P English (Prosecutor) Mr P Larkin SC, with Ms S Ross (Defendant)