Land and Environment Court New South Wales Medium Neutral Citation: Environment Protection Authority v Dial-A-Dump (EC) Pty Ltd [2024] NSWLEC 21 Hearing dates: 11 and 12 December 2023 Date of orders: 20 March 2024 Decision date: 20 March 2024 Jurisdiction: Class 5 Before: Pepper J Decision: See orders at [181]. Catchwords: SENTENCE: occupier of landfill charged with emission of offensive odour – plea of guilty – odour affected local residents over a three month period – substantial environmental harm caused – multiple victims – harm reasonably foreseeable – practical measures available to avoid or mitigate the harm – objectively serious – subjective factors – moiety ordered – environmental services order – publication order made – notice to residents ordered. Legislation Cited: Crimes (Sentencing Procedure) Act 2000, ss 3A, 21A(2), 21A(3), 22, 23 Criminal Procedure Act 1986, ss 257B, 257G Fines Act 1996, s 122 Protection of the Environment Operations Act 1997, ss 3, 64(1), 91, 129, 129(1), 132, 241, 241(1), 241(2), 248, 250(1)(a), 250(1)(b), 250(1)(e) Protection of the Environment Operations (Waste) Regulation 2014, cl 80(4) Cases Cited: ACE Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4 Andrews v The Queen (2006) 160 A Crim R 505 Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Chief Executive, Office of Environment and Heritage v Rummery [2012] NSWLEC 271; (2012) 192 LGERA 314 Chief Executive, Office of Environment Heritage v Orica Pty Ltd [2015] NSWLEC 109 Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483 Elyard v R [2006] NSWCCA 43 Environment Protection Agency v Nulon Products Pty Ltd [2015] NSWLEC 153 Environment Protection Authority v Baiada Poultry Pty Limited [2008] NSWLEC 280; (2008) 163 LGERA 71 Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278 Environment Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Bartter Enterprises Pty Ltd (No 4) [2021] NSWLEC 45 Environment Protection Authority v Burrangong Meat Processors Pty Ltd [2003] NSWLEC 102 Environment Protection Authority v Cargill Australia Ltd [2004] NSWLEC 334 Environment Protection Authority v Cargill Australia Ltd (No 2) [2004] NSWLEC 421 Environment Protection Authority v Causmag Ore Company Pty Ltd [2015] NSWLEC 58 Environment Protection Authority v Centennial Newstan Pty Ltd [2006] NSWLEC 732 Environment Protection Authority v CPB Contractors Pty Limited [2019] NSWLEC 134 Environment Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90 Environment Protection Authority v Elf Farm Supplies Pty Ltd [2017] NSWLEC 60 Environment Protection Authority v Hunter Valley Energy Coal [2015] NSWLEC 120 Environment Protection Authority v Illawarra Coke Company Pty Ltd [2002] NSWLEC 21; (2002) 118 LGERA 451 Environment Protection Authority v Nationwide Oil Pty Ltd [2002] NSWLEC 201 Environment Protection Authority v Shoalhaven Starches Pty Ltd [2006] NSWLEC 685 Environment Protection Authority v Sydney Water (No 2) [2023] NSWLEC 2 Environment Protection Authority v Wambo Coal Pty Ltd [2016] NSWLEC 125 Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Environment Protection Authority v Whitehaven Coal Mining Ltd [2019] NSWLEC 27; (2019) 239 LGERA 31 EPA v Minto Recycling Pty Ltd [2019] NSWLEC 193 Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Budvalt Pty Ltd; Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Harris [2020] NSWLEC 113 Hei Hei v The Queen [2009] NSWCCA 87 Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 Hunter Valley Energy Coal, Environment Protection Authority v Unomedical Pty Ltd (No 4) [2011] NSWLEC 131 Kassoua v The Queen [2017] NSWCCA 307 King v The Queen [2010] NSWCCA 33 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 R v Dodd (1991) 57 A Crim R 349 R v Milat [2014] NSWCCA 29 R v Nichols (1991) 57 A Crim R 391 R v Oliver (1980) 7 A Crim R 174 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Visconti [1982] 2 NSWLR 104 Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 Secretary, Department of Planning, Industry and Environment v Wollongong Recycling (NSW) Pty Ltd [2020] NSWLEC 125; (2020) 245 LGERA 241 Stephen James Orr v Narrabri Coal Operations Pty Ltd; Stephen James Orr v Narrabri Coal Pty Ltd [2021] NSWLEC 85 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 Category: Sentence Parties: Environment Protection Authority (Prosecutor) Dial-A-Dump (EC) Pty Ltd (Defendant) Representation: Counsel: P English with E Dunlop (Prosecutor) P Larkin SC with J Caldwell (Defendant) Solicitors: Environment Protection Authority (Prosecutor) Ashurst (Defendant) File Number(s): 2022/135414 Publication restriction: Nil JUDGMENT Dial-A-Dump (EC) Pty Ltd Pleads Guilty to Emitting an Offensive Odour 1. The defendant, Dial-A-Dump (EC) Pty Ltd ("DADEC"), has pleaded guilty to an offence against s 129(1) of the Protection of the Environment Operations Act 1997 ("POEOA"), in that it was the occupier of the premises at which scheduled activities were carried out under the authority conferred by a licence and it caused the emission of offensive odour from the premises to which the licence applied between 26 March and 16 June 2021 ("the charge period"). 2. Over the course of the charge period DADEC caused the emission of offensive odour associated with landfill gas ("LFG") from Bingo Eastern Creek Landfill at Honeycomb Drive, Eastern Creek New South Wales ("NSW") 2766 ("the landfill"). The odour was detected regularly during the charge period by residents in the nearby suburb of Minchinbury, and intermittently during the charge period by residents in the nearby suburbs of Eastern Creek and Horsley Park. The odour was variously described as smelling like "rotten eggs", "a sewer" or "sulphur" ("the odour"). Legislative Regime Creating the Offence 1. Section 129 of the POEOA creates the following offence: 129 Emission of odours from premises licensed for scheduled activities (1) The occupier of any premises at which scheduled activities are carried on under the authority conferred by a licence must not cause or permit the emission of any offensive odour from the premises to which the licence applies. … (3) A person who contravenes this section is guilty of an offence. 1. The definition of an "offensive odour" is set out in the Dictionary to that Act as: offensive odour means an odour— (a) that, by reason of its strength, nature, duration, character or quality, or the time at which it is emitted, or any other circumstances— (i) is harmful to (or is likely to be harmful to) a person who is outside the premises from which it is emitted, or (ii) interferes unreasonably with (or is likely to interfere unreasonably with) the comfort or repose of a person who is outside the premises from which it is emitted, or (b) that is of a strength, nature, duration, character or quality prescribed by the regulations or that is emitted at a time, or in other circumstances, prescribed by the regulations. 1. The maximum penalty for the offence is set out in s 132 of that Act, which states that: 132 Maximum penalty for air pollution offences A person who is guilty of an offence under this Division is liable, on conviction— (a) in the case of a corporation—to a penalty not exceeding $1,000,000 and, in the case of a continuing offence, to a further penalty not exceeding $120,000 for each day the offence continues… DADEC Operates the Landfill 1. The facts of this case were largely contained in a statement of agreed facts ("SOAF"), which is summarised below. 2. DADEC operates landfills and is engaged in waste disposal. Since 9 April 2019 it has been a fully owned subsidiary of Bingo Industries Limited ("Bingo"). 3. The landfill is located within the Blacktown local government area, approximately 36 km west of the Sydney CBD and 18 km west of Parramatta. Importantly, it is approximately 400 m south of the closest residential properties in Minchinbury and approximately 1.2 km east of residential properties in Erskine Park. 4. The landfill is situated in the void of a former quarry, which has a maximum depth of approximately 150 m, and dimensions of around 600 m x 400 m. As at 2011 the void was estimated to be 11 million m3 in volume. 5. Since March 2012 DADEC has held Environment Protection Licence No 13426 ("the EPL"). The EPL authorises the scheduled activities of waste disposal and waste storage at the landfill. 6. DADEC also holds Environment Protection Licence No 20121 for a resource recovery facility that is located adjacent to the landfill. This resource recovery facility reprocesses waste from construction, demolition, commercial and industrial sectors. Residual waste from the resource recovery facility is transferred to the landfill through a chute that runs from the resource recovery facility into the landfill void. 7. On 22 November 2009 project approval was granted to the landfill and resource recovery facilities by the then Minister for Planning under s 75J of the Environmental Planning and Assessment Act 1979. The facilities commenced operation in June 2012. From its commencement to the date of the SOAF, the landfill had received over 5.6 million m3 of waste. 8. DADEC owns the land on which both the landfill and resource recovery facility are located and is the occupier of both premises. 9. Throughout the charge period, the EPL permitted the storage and disposal of non-putrescible general solid waste, including treated acid sulphate soil, treated potential acid sulphate soil, tyres and asbestos waste. 10. From 8 May 2021 and for the remainder of the charge period, the EPL prohibited the receipt, or land application, of the following types of waste at the landfill: 1. mixed waste organic outputs which is the end product of a practice that separates the organic waste in red household bins from other waste. This consists of pasteurised and biologically stabilised organic outputs produced from the mechanical biological treatment of general solid waste; 2. waste resulting from flood clean up works or activities; and 3. any other waste that emits, or has the potential to emit, offensive odours. 1. During the charge period, the EPL permitted the receipt of up to 1 million tonnes per calendar year of non-putrescible waste, excluding any residual waste from the resource recovery facility. Components of non-putrescible waste can, however, generate LFG over time. During the charge period non-putrescible waste was present in the landfill. The Generation of Landfill Gas and Its Odour 1. LFG is generated in a landfill when anaerobic bacteria break down the waste and through chemical processes involving waste. The volume of LFG generated depends on the type and volume of the waste, the length of time it has been in the landfill and climatic conditions, such as rainfall. The rate at which LFG is generated is influenced by moisture content and distribution, waste compaction, leachate management, changes in waste composition over time, pH levels, nutrient availability and temperature. The amount of LFG that is produced in a landfill generally increases as the amount of waste increases. 2. LFG consists of about 99.5% methane and carbon dioxide, both of which are odourless, and around 0.5% trace gases. It is the trace gases that give LFG its odour. There are hundreds of trace gases in LFG, including hydrogen sulfide ("H2S"). The odour of LFG varies depending on the concentrations of trace gases present. Sulphur compounds such as H2S at detectable concentrations have an unpleasant smell of rotten eggs. People can usually smell H2S at low concentrations in the atmosphere, with the odour detection threshold depending on the individual. The odour detection threshold is the concentration at which 50% of the population can detect the presence of the odour. The threshold for H2S can be as low as 0.00041 parts H2S per million parts of air ("ppm"), but is more frequently reported to be between 0.008 ppm and 0.13 ppm. 3. H2S is produced from sulphate in waste. It is found in a range of waste streams, particularly in gyprock and acid sulphate soils, but also in non-putrescible organic materials (timber and textiles), shredder floc and water treatment plant residues. High moisture levels in waste in a landfill, together with sulphate materials and anaerobic conditions, can lead to increased production of H2S. 4. Odour production rates from LFG within landfills are highly variable and depend on the type of waste, its moisture content, the extent of decomposition, the type and extent of material covering the waste, whether or not any LFG collection infrastructure is installed, the terrain, the temperature and the wind conditions. 5. H2S usually breaks down in air progressively over about three days from the time of its generation and is dispersed by wind. Therefore, exposure is likely to continue only if there is an ongoing source. 6. Liquid, known as leachate, also has the potential to impact upon LFG emissions. Leachate is generated when water comes into contact with waste in a landfill. Increasing leachate levels may impact LFG emissions in three ways: 1. first, by saturating waste which can amplify the processes that lead to gas generation; 2. second, by pushing the gas up and out as the waste becomes more saturated with leachate; and 3. third, by limiting the effectiveness of an LFG extraction and treatment system (if installed). 1. Finally, weather conditions impact odour dispersion. The weather conditions in autumn are often associated with poor atmospheric dispersion properties in the Sydney basin, including lighter winds and temperature inversions. A temperature inversion occurs when there is a stable mass of warmer air sitting above a layer of cooler air. This typically leads to elevated odour exposure from a source to a downwind receptor. The LFG will rise to the bottom of the warm air layer and move horizontally to the atmosphere. Odours can therefore be trapped close to the ground and travel long distances under light breeze before being diluted and dispersed. Very light winds result in little atmospheric dispersion and little dilution of odour. Odour is generally worse in the evening or early morning, but better during rainfall. Surface and Subsurface Gas Readings Prior to the Charge Period 1. Surface gas emissions can be monitored for methane. Methane can be used as a proxy for the presence of trace gases in LFG, although the relationship can vary from site to site. Sites with surface methane and LFG emissions do not necessarily emit odour offsite. Increased methane concentrations onsite, however, mean that it is more likely that offsite odour will become an issue. 2. A surface gas emissions monitoring program is designed to detect emissions through the cover material over waste. The Environment Protection Authority's ("EPA") Environmental Guidelines: Solid Waste Landfills (2016) ("the Landfill Guidelines") provide that the threshold for further investigative and corrective action is 500 ppm of methane at any point on the landfill surface for intermediate and finally capped areas. The Landfill Guidelines provide that if methane is detected at levels of 500 ppm or above, investigative and corrective actions should include: 1. the repair or replacement of the cover material; 2. the installation of emissions monitoring to quantify emission rates and to help identify the extent of gas loss; 3. the installation of sub-surface monitoring wells to gauge the extent of any lateral migration of gas; and 4. the installation of LFG controls to extract and treat gas. 1. Under its EPL DADEC was required to implement a LFG monitoring program in accordance with the Landfill Guidelines. As a result, DADEC had engaged Consulting Earth Scientists ("CES") as an independent landfill expert to undertake monitoring and advise it on further action. This included surface and subsurface gas monitoring at the landfill. 2. Quarterly gas monitoring reports prepared by CES recorded surface gas methane levels greater than 500 ppm at various locations on the landfill surface on 12 out of the 17 days that readings were taken in the five year period between December 2016 and 2020. On those 12 days, levels greater than 500 ppm were detected at between one and seven points on the landfill surface. In the absence of any regulatory requirement or consultant advice that anything further needed to be done, DADEC deployed additional cover in response to the findings. Otherwise it considered that the issue had been addressed. 3. Onsite surface gas methane readings above 500 ppm are common at landfill sites and do not necessarily indicate the presence of a LFG problem. Surface gas readings above 500 ppm were generally responded to by DADEC taking corrective actions such as applying more cover to the surface of the waste in the landfill and improving the effectiveness of cover over "hotspots" where methane concentrations had been detected above the investigative and corrective action threshold. LFG Management and Monitoring Plans for the Landfill 1. DADEC retained numerous independent and appropriately qualified experts to provide advice and to undertake various activities at the landfill including: CES, Cardno, ERM, Barnett & May, Arcadis, Mockinya Consulting, Northstar Air Quality ("Northstar"), Run Energy and Australian Environmental Auditors. 2. Since commencing its operation of the landfill in 2012, DADEC has undertaken a range of measures to manage odour, including: 1. undertaking odour surveys to monitor for compliance with environmental conditions and standards, including the Landfill Guidelines; 2. engaging external consultants to undertake Independent Environmental Audits ("IEA"); and 3. since 2016 engaging landfill specialists for environmental monitoring services, including gas monitoring of the wells on a quarterly basis. 1. Between 31 January 2010 and 31 December 2020, DADEC received nine complaints in connection with odour at the landfill. 2. The last IEA prepared prior to the charge period was prepared by Barnett & May on 20 May 2020. Based on the field odour assessment undertaken, the IEA concluded that it was "not considered that the odour generated by the operations at the Premises will cause an adverse impact on any surrounding receptors (i.e. an offensive odour) should management measures be continued to be implemented as observed". 3. During the charge period, DADEC had access to a number of plans that referred to the potential emission of LFG at the landfill. These plans were either prepared or reviewed by independent and appropriately qualified experts. They included the: 1. Air Quality Management Plan: Eastern Creek Landfill, Waste Transfer & Processing Facility, dated 22 December 2009; 2. Landfill Environmental Management Plan, dated December 2011 ("LEMP"); 3. Landfill Gas Monitoring Program, dated 27 February 2017 ("LFGMP"); and 4. Air Quality, Odour and Greenhouse Gas Management Plan, dated 16 March 2017 ("AQOGGMP"). 1. H2S was listed as a proposed trace gas analyte in the LEMP and AQOGGMP. 2. The AQOGGMP stated that if elevated methane or carbon dioxide levels were confirmed in quarterly LFG emission surveys, then remediation measures should be immediately considered and a proposal for remediation should be provided to the NSW Office of Environment and Heritage. Identified remediation measures were noted as dependent on the scale of the problem and included: …additional capping, the construction of a local cut-off on interceptor trench to enable venting to the atmosphere, installation of passive (or active) gas venting structures beneath buildings, installation of methane and carbon dioxide alarm systems, or the installation of positive gas abstraction in the area of the landfill considered to be causing the gas migration problem. 1. Based on the observed monitoring results and physiographic features of the landfill at the time, the AQOGGMP only recommended cover and capping. 2. However, the AQOGGMP further noted that: …the waste characteristic of the landfilled waste are non-putrescible, it is expected that landfill gas will not represent a major issue. However, since a small proportion of waste will be of organic nature (but not necessarily putrescible) gas emissions in the future cannot be entirely ruled out. 1. The LFGMP additionally identified that if greater than 500 ppm of methane was found at any point on the landfill surface, corrective action should take place, such as repairing or replacing cover material or adjusting or installing LFG extraction equipment. 2. The LEMP and AQOGGMP stated that trace gas sampling and analysis should be undertaken if methane emissions were observed at the surface. Methane surface emissions were detected by CES and reported to DADEC between 2016 and the commencement of the charge period, however, there is no record of any trace gas sampling and analysis being undertaken. Leachate 1. DADEC had in place a leachate treatment system used to treat leachate generated in the landfill. A key component of the system was the leachate riser, which was a concrete column in the waste surrounded by an aggregate outer layer that allowed water to drain into a sump at the base of the landfill. The leachate was then pumped up through a leachate pipe inside the riser to a leachate treatment plant at the top of the landfill. The leachate pipe and riser were extended upwards as the height of the waste in the landfill increased. 2. Once the leachate was treated it was discharged to a sewer pursuant to a Consent to Discharge Industrial Trade Wastewater granted by Sydney Water. Leachate from the leachate treatment plant was not a source of odour detected offsite during the charge period. Extreme Rainfall Event of March 2021 1. In March 2021 there was a significant rainfall event in the location of the landfill. The Special Climate Statement 74 – extreme rainfall and flooding in eastern and central Australia in March 2021, dated 21 June 2021 ("BoM Report"), stated that eastern NSW was affected by a major rain event in the second half of March 2021. A moist easterly flow was reportedly established over coastal NSW on 17 March 2021, that persisted for approximately a week. That week "was the wettest week for the region since national daily records began in 1900". This was in addition to antecedent wet conditions in 2020, which contributed to flooding being more widespread and severe in 2021 than from a comparable rain event in February 2020. 2. Accordingly, in March 2021 it was reported that the Hawkesbury-Nepean catchment in Sydney experienced its most significant flooding for more than 30 years. The rainfall caused extended periods during which the waste in the landfill was in contact with water. 3. Monthly rainfall recorded at the closest Bureau of Meteorology ("BoM") weather station to the landfill, the Erskine Park Reservoir, for the months of January to March in 2020 and 2021 were as follows: Month Rainfall (mm) January 2020 48 February 2020 440 March 2020 113 January 2021 53 February 2021 93 March 2021 353 1. The total rainfall for the first quarter of 2020 was 601 mm and for the first quarter of 2021 it was 499 mm. Generation of H2S and Methane During the Charge Period 1. H2S was present in the LFG that was generated at the landfill during the charge period. H2S readings taken by DADEC at the landfill between 9 May and 16 June 2021, ranged from <0.1 ppm to 18 ppm. There were frequent readings above 5 ppm. 2. Surface gas emissions data from at least nine dates between 26 May and 9 June 2021, demonstrate that LFG was being emitted from multiple locations across the landfill surface, with increased concentrations being emitted around the edges of the landfill. 3. Surface emissions of methane above the investigative and corrective action threshold were detected by CES at the landfill between 25 May to 5 June 2021. 4. LFG extracted from the landfill on 3 and 4 June 2021, contained H2S levels of up to 550 ppm at a number of wells, and at some wells the level exceeded the upper detectable limit (over 500 +/- 10%). On 15 June 2021 levels of H2S measured in three flares were 528 ppm, 706 ppm and 967 ppm. Gas Readings in Nearby Suburbs and Offensive Odour Surveys During the Charge Period 1. The EPA installed three H2S monitors at various sites in Minchinbury and four at various sites in Eastern Creek from 9 June 2021. They continuously monitored H2S for the remainder of the charge period by recording an H2S reading every 10 minutes. Over 1,000 readings were taken. 2. The monitors in Minchinbury recorded 0 ppm on all days that they were installed during the charge period, except on 9 June 2021, when five readings of 0.003 ppm and one reading of 0.004 ppm was recorded. 3. The monitors in Eastern Creek were directly adjacent to the landfill and not in close proximity to any residential receivers. They recorded readings between 0.003 ppm and 0.050 ppm from 9 June to 16 June 2021. 4. On all but one day of the charge period, the EPA received odour complaints. It received approximately 750 complaints from approximately 250 individuals about the offensive odour in the vicinity of the landfill, particularly in Minchinbury. Complaints about odour from nearby residents were also made directly to DADEC. It is possible, however, that not all of the complaints related to the landfill as there were other potential sources of odour in the area at that time. 5. During the 32 days of the charge period, the EPA received 10 or more complaints about odour in the area. The odour was often described as having a "rotten egg" or "sulphur" smell. 6. Between 10 April and 11 June 2021 EPA officers and its consultant, Odour Unit Pty Ltd, carried out odour surveys in residential areas around Eastern Creek, including Minchinbury and Erskine Park. No odour was detected on 13 days, "very weak" odour was detected on five days, "weak" odour was detected on eight days, and "distinct" or "strong" odour was detected on three days. 7. DADEC carried out daily odour surveys in various sites in Minchinbury and nearby suburbs between 13 May and 16 June 2021. DADEC's consultant, Northstar, also carried out odour surveys. No odour was detected on 11 days, "very weak" odour was detected on two days, "weak" odour was detected on five days, "noticeable" or "distinct" odour was detected on five days, and "strong" odour was detected on one day. 8. Odour inspections or surveys were also carried out in residential areas by two Blacktown City Council ("Council") employees. An environmental scientist employed by the Council conducted a daily odour inspection in the Minchinbury/Eastern Creek/Erskine Park area between 8 and 11 April 2021. In residential areas she detected a "weak" odour on three days and a "strong" odour on one day. A coordinator in environmental health carried out an odour survey in Minchinbury and Eastern Creek on 29 March 2021. She detected a "very strong" rotten egg odour at one residential location. Actions Taken by DADEC to Address the Odour 1. Once the odour became apparent in autumn of 2021, DADEC undertook a range of actions to manage and control the odour at the landfill. One of these measures included DADEC's engagement of Northstar to undertake an odour assessment on 8 April 2021. 2. On 23 April 2021 the EPA issued DADEC with a clean-up notice under s 91 of the POEOA requiring that by 4 pm on 27 April 2021, it: Take reasonable action to manage odorous gas emissions from the leachate riser and the leachate vent pipe, such as by sealing gaps or cracks in the leachate riser, capping the leachate vent pipe, or otherwise filtering the outlet to the leachate vent pipe such as by use of activated carbon or compost / mulch material. 1. DADEC took immediate action to seal and filter the leachate riser and leachate vent pipe with mulch and activated carbon. DADEC also applied additional cover to the entirety of the landfill to a thickness of 200 mm, that is, in excess of the requirement set out in the notice. 2. In May 2021 DADEC engaged Mockinya Consulting and Australian Environmental Auditors to provide advice and to assist it in its response to the odour. On 3 May 2021 DADEC also engaged Run Energy to assist it with LFG management. Amended EPL Adds Condition E5 to Address Odour 1. The EPA amended the EPL on 7 May 2021, to add condition E5 relating to odour. Condition E5 placed additional limits on the types and volumes of waste that could be received at the landfill, imposed further controls as to immediate and daily cover, prohibited the stripping back of daily and intermediate cover before depositing waste, and limited the size of the active tipping face to 1,000 m2. The amended EPL also required DADEC to conduct daily LFG surface emissions monitoring of the active tipping face. 2. During the early part of the charge period DADEC undertook the following action in consultation with the EPA, in response to the clean-up notice and in compliance with EPL condition E5, namely, it: 1. applied lime to the area in the vicinity of the leachate riser and vent on 21 April 2021; 2. expanded the scope of its odour audit; 3. commissioned a consultant to undertake a gas assessment; 4. reduced the size of the active tip face, applied additional cover and further compacted fill at various locations across the landfill; 5. attempted to seal the gaps or cracks in the riser, added mulch as a bio-filter to the riser and the vent and applied additional cover; 6. applied activated carbon around the leachate riser and vent; 7. conducted further monitoring, including to identify "hot spots"; 8. applied to Sydney Water to increase rates of leachate permitted to be discharged to sewer; 9. undertook capping and sealing of the leachate vent; 10. increased the volume of clean soil applied across the landfill; and 11. investigated gas capture and management options. 1. On 5 May 2021 another DADEC consultant, Lightbody, recommended that DADEC take a series of short-term and medium-term measures. The short-term measures included: 1. seal the leachate sump with a properly fitting steel lid with a resilient seal; 2. install a mix of pin and gas wells to provide sufficient flow to sustain a flare and to target point sources; 3. bleed gas from the leachate sump to the gas flare to avoid air ingress into the waste mass; 4. develop an appropriate sealing method for the area immediately outside the sump; 5. oxidise LFG in a flare equipped with a blower and a dedicated power supply, slam-shut valve, ultraviolet flame sensor and automated combustion controls; and 6. operate, monitor and manage the system as necessary. 1. The medium-term measures included: 1. implement a sitewide LFG management system based on the data from the gas pumping trial; 2. implement effective leachate management processes to ensure LFG system performance; and 3. where necessary, implement changes to the landfill operations to accommodate and improve the performance of the LFG control system. 1. DADEC undertook all of these measures. Installation of the LFG Extraction and Treatment System 1. Prior to the installation of the temporary LFG extraction and treatment system, DADEC did not extract, capture or treat the LFG generated by the waste in the landfill. However, from May 2021 it used other measures to control the LFG generated by the waste: 1. on 15 May 2021 installation of infrastructure for the extraction of LFG commenced; 2. a gas pumping trial commenced on 17 May 2021. The pumping trial involved the progressive installation and operation of an LFG extraction system. Initially this involved six gas collection wells drilled into the waste mass and a single elevated flare (operating at 500 m3 per hour); 3. on 26 May 2021 a second flare (which operated between 500 m3 and 800 m3 per hour) was commissioned with 20 LFG wells in operation and a connection to the leachate riser; 4. by 29 May 2021 another eleven LFG wells and a horizontal well at the leachate riser were installed; 5. on 11 June 2021 a third flare was commissioned (operating at 500 m3 per hour); 6. by 26 June 2021 the system was operating with 31 wells and three flares; 7. on 11 October 2021 a fourth flare (at 500 m3 per hour) was commissioned, bringing the total flaring capacity to 2,000-2,300 m3 per hour; 8. as at 29 November 2021 the elevated flares, known as "candlestick" flares, were extracting a combined 2,239 m3 per hour of LFG from the landfill; 9. in September 2021 DADEC commenced the preparation of a development application for a permanent flare system. On 11 March 2022 the development application was approved; and 10. construction of the permanent flare system was completed in December 2022. Thereafter, two permanent flares were operating at the landfill. Each flare had a capacity of 1,500 m3 per hour, which was greater than the capacity of the temporary flares. 1. By mid 2021 Bingo had spent over $1.9 million to control the odour at the landfill, and by 18 July 2023 Bingo had incurred external costs of approximately $6,278,820 to control the odour. 2. With the LFG extraction and treatment system in place and operating with increasing capacity, together with the other measures implemented by DADEC, there was a reduction in complaints by the end of the charge period. The installation of the LFG extraction and treatment system proved critical to remedying the issue of the offensive odour leaving the site. Evidence of the Parties 1. In addition to the SOAF, the EPA relied on the following evidence: 1. an initial, supplementary, and additional supplementary expert report prepared by Dr Michael Robertson, pharmacologist and forensic toxicologist, dated 3 August 2022, 11 July and 28 November 2023, respectively; 2. an email from Graham Peace at Select Civil Pty Ltd to Renaud Chauvet and John Hassett, dated 2 June 2021 ("the Peace email"); 3. a diagram of the leachate system as at 12 December 2023, showing the leachate riser; and 4. an email from Heather Tilley to Anthony Reid, dated 17 January 2020, attaching a gaps analysis from Arcadis Consultants, dated 3 December 2019 ("the Arcadis email"). The gap analysis was in the following terms: 1. Together with the SOAF, DADEC relied upon the following evidence: 1. a series of documents relating to Bingo attached to the affidavit of Roslyn Dent, affirmed 13 November 2023 ("the Dent affidavit"). Dent is employed by Bingo, the parent of DADEC, as Head of Environmental Operations; 2. an affidavit from Hassett, the sole director of DADEC and an employee of Bingo, reporting to the Chief Executive Officer of Bingo, affirmed 9 November 2023 ("the Hassett affidavit"). The Hassett affidavit annexed Bingo's Sustainability Report 2022; 3. the affidavit of Christopher Zaccazan, affirmed 13 November 2023 ("the Zaccazan affidavit"). Zaccazan is the General Manager Engineering at Bingo. Annexed to his affidavit was material relating to the Eastern Creek Recycling Ecology Park modification applications, invoices for the consultancy services engaged by DADEC, and invoices for other equipment, materials and labour costs relating to works carried out at the landfill; 4. the expert report of Dr Jacqueline Wright, an environmental toxicologist, dated 15 November 2023 ("the Wright report"); 5. a bundle of six A3 sheets, with the first page comprising of an aerial photograph of "Locations of the homes/workplaces of resident witnesses and H2S monitors"; 6. a factsheet prepared by the Government of Western Australia Department of Health entitled "Hydrogen sulfide and public health"; 7. a Department of Environment and Conservation of NSW report entitled Technical Framework: Assessment and management of odour from stationary sources, dated November 2006 ("the Technical Framework"); 8. a record of complaints relating to the landfill from 2 February to 8 April 2020; 9. an internal EPA email communication from Katie McCallum to Rashad Danoun, dated 8 April 2021; 10. the BoM Report; and 11. a letter from the Council to the Registrar of the Court, dated 7 December 2023, detailing a project proposed to be the subject of an environmental services order and attaching a Tree Assessment and Management Report, dated November 2022. Sentencing Principles The Purpose of Sentencing 1. The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act 2000 ("CSPA"), and are not recited here. Statutory Matters Required to be Taken into Account in Sentencing 1. Subsections 21A(2) and (3) of the CSPA set out aggravating and mitigating factors that the Court must consider. Relevant to the facts of this case are: 21A Aggravating, mitigating and other factors in sentencing … (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows– … (d) the offender has a record of previous convictions … … (g) the injury, emotional harm, loss or damage caused by the offence was substantial, … (m) the offence involved multiple victims or a series of criminal acts, … The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows– (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, … (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), … (k) a plea of guilty by the offender (as provided by section 22 or Division 1A), … (m) assistance by the offender to law enforcement authorities (as provided by section 23)… 1. For offences created by the POEOA, the Court is also required to consider the matters set out in s 241 of that Act: 241 Matters to be considered in imposing penalty (1) In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant)— (a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence, (b) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence, (d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence, … (2) The court may take into consideration other matters that it considers relevant. 1. The appropriate sentence for DADEC is to be determined by an instinctive synthesis of all of the relevant objective and subjective circumstances of the case (Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357). Objective Circumstances of the Offence 1. The objective gravity of the offence fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit insofar as the sentence must not exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances (Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 and Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 354). It fixes the lower limit because allowance for the subjective factors of the case ought not produce a sentence which fails to reflect the objective gravity or seriousness of the offence (R v Dodd (1991) 57 A Crim R 349 at 354 and R v Nichols (1991) 57 A Crim R 391 at 395). 2. The objective seriousness is to be determined by reference to the nature of the offences and not by reference to matters that are personal to a particular offender (Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27]). Nature of the Offence 1. The nature and purpose of the statutory provision that has been contravened, and its place in the statutory scheme, reflect the objective seriousness of the environmental offence (Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [168]-[172], Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [49] and Chief Executive, Office of Environment Heritage v Orica Pty Ltd [2015] NSWLEC 109 at [59]). 2. The relevant objects contained in s 3(a), (d), (e) and (g) of the POEOA assist in identifying the purpose of the offence with which DADEC has been charged. 3. The EPA submitted that the offence was contrary to the legislative objectives of the POEOA because it caused actual environmental harm by way of the emission into the air of impurities (Environment Protection Authority v CPB Contractors Pty Limited [2019] NSWLEC 134, Environment Protection Authority v Hunter Valley Energy Coal [2015] NSWLEC 120 at [17] and Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [15]). I agree. The commission of the offence contravened the legislative intent of protecting the quality of the environment (s 3(a) of the POEOA). 4. DADEC accepted that the emission of the offensive odour was caused by its failure to have an adequate LFG extraction and treatment system in place. However, it emphasised that it was not being sentenced for a failure to have in place an LFG extraction and treatment system at the landfill, which would constitute an offence against s 64(1) of the POEOA. This submission is correct. Maximum Penalty 1. The maximum penalty provided for an offence indicates Parliament's view as to the seriousness of that offence (Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483 at [27], Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 and Rawson at [57]). 2. At the time of the commission of the offence the maximum penalty for a corporation was $1,000,000 under s 129 of the POEOA. DADEC's State of Mind in the Commission of the Offence 1. An offence under s 129 of the POEOA is one of strict liability which means that mens rea is not an element of the offence. However, a strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than an offence committed accidentally (Environment Protection Authority v Whitehaven Coal Mining Ltd [2019] NSWLEC 27; (2019) 239 LGERA 31 at [201] and Chief Executive, Office of Environment and Heritage v Rummery [2012] NSWLEC 271; (2012) 192 LGERA 314 at [122]). 2. Neither party advanced any submission in respect of DADEC's state of mind at the time of the commission of the offence and I therefore make no findings in this regard. The Environmental Harm Occasioned or Likely to Be Occasioned By the Commission of the Offence 1. Section 241(1)(a) of the POEOA requires the Court to take into account the extent of the harm caused, or likely to be caused, to the environment by the commission of the offence. 2. The composite term "harm to the environment" is broadly defined in the Dictionary of the POEOA: Harm to the environment includes any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution. 1. The concept of harm in the context of environmental offences extends to both actual and potential harm (Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 at [145]-[149]). 2. There is, however, a distinction between actual harm to the environment and harm to the regulatory regime (ACE Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4 at [65]). While the former should be taken into account under s 241(1)(a) of the POEOA, the latter is a relevant factor pursuant to s 241(2) of that Act only. 3. The EPA submitted that the commission of the offence caused actual environmental harm by way of the emission of impurities into the air and harm to human health in addition to consequential harm to the statutory scheme. Both submissions should be accepted. 4. It was an agreed fact that the odour emitted from the premises interfered unreasonably with the comfort and repose of local residents. Moreover, it was not in dispute that these residents experienced varying symptoms, including throat and eye irritation, coughing, breathing difficulties, headaches, nausea, loss of appetite, insomnia, stress and anxiety, all caused by the presence of the odour. 5. Specific examples of the impacts of the odour from the landfill during the charge period included: 1. a resident of Minchinbury smelt the odour regularly at and in her home from 31 March until 22 May 2021. She described the odour as "foul, putrid rotten eggs", "rotten egg gas", "abhorrent rotten egg/sulfur odours" and "obnoxious rotten egg odour". She noted that on one occasion she was "forced to remain indoors" due to the smell and had to close her windows and doors to minimise the odour entering her home; she was unable to hang out her washing to dry; on occasion, she felt sick, extremely uncomfortable and anxious; she experienced eye and throat irritation, difficulties breathing, coughing, nausea, a gag reaction, a headache and a "stuffy nose and head". She was not able to have family and friends visit, describing the odour as "an annoyance and an embarrassment". This included her grandson, who has asthma, due to a concern that it may trigger his condition. The smell was most apparent when it was cooler with a southerly wind; 2. a resident who lives with her family in Minchinbury smelt the odour from the commencement of the charge period until the flares were installed at the landfill in June 2021. The odour was particularly noticeable to her in April and May 2021. During this period there were times when she felt sick, stressed and unable to sleep due to the odour. She also experienced nausea, vomiting, headaches and eye irritation. Due to the odour, she took a day off work in April following a sleepless night, used towels under doors to prevent odour entering the house and stated that she considered selling her house; 3. a resident who lives in Minchinbury less than 2 km from the landfill smelt the odour from the commencement of the charge period until 6 June 2021. It was detected consistently at night and sometimes during the day. She described the odour as a "rotten egg odour", an "egg fart", and on one occasion, as a "foul overpowering stench". She experienced nausea, respiratory symptoms, coughing, breathing difficulties, headaches, dizziness, difficulty sleeping, fatigue, eye and throat irritation, anxiety and panic. The odour often infiltrated her house causing her to feel unable to relax in her home. She felt "gross" even when the odour was weaker. She did not notice the odour after 6 June 2021; 4. an owner, operator and resident of a motel in Minchinbury smelt the odour from the commencement of the charge period and said that it got worse until late May or June 2021, when he said it became unbearable. The odour was bad in the afternoon, very bad in the evening and worse with little or no wind and after rain. The odour entered his motel, affected his breathing, and caused throat and eye irritation and a dry, persistent cough; 5. a Minchinbury resident smelt the odour from the commencement of the charge period until May 2021. He described the odour as "rotten egg gas/acrid sulfur" and on one occasion "faecal". He suffered a "niggly tickly, horrible cough", throat irritation and difficulty breathing and sleeping due to the odour. He reported the odour to the EPA on 18 April 2021, when it became so bad that he could not sleep. He noticed an improvement in the odour from May 2021 onwards; 6. a resident of Minchinbury experienced the odour during the charge period and found that it was worse when there was no or little breeze coming from the south-west. She described the odour during the charge period as "rotten egg gas and sulfur odour". She suffered throat irritation, a persistent cough and itchy and dry eyes. She also experienced stress and disturbed sleep. Between March and April 2021, she kept all the doors and windows locked and constantly ran the air conditioner to ventilate the odour, which had penetrated the house. Following the charge period she remained anxious that the odour would return and was worried about the impacts that long term exposure to H2S gas could have on her family; 7. a Minchinbury resident to the north of the landfill experienced the odour during the period from March to June 2021. She could detect the odour with or without wind. Her life became "heavily impacted by the smell" insofar as: 1. the odour caused her to use her home in a different manner. She was unable to have guests over due to the smell, unable to use the barbeque, or hang washing outside, kept the windows and doors closed, used towels to block air gaps in the doors (but the smell sometimes still entered), and was unable to use the downstairs toilet because the odour entered through the toilet vent; and 2. one night the odour caused her to wake from sleep, her eyes to sting and her throat to feel sore; 1. a resident of Minchinbury experienced the odour most nights and sometimes during the day from mid April until 31 May 2021. The odour penetrated her home, interfered with her sleep and the sleep of her children and seeped into her clothes. She described the odour as a mixture of "gas, rotten eggs and sewage". She suffered headaches, itchy eyes, nausea, loss of appetite, stress, and was anxious because her "kids were constantly complaining about the smell and there didn't seem to be anything [she] could do about it". She reported that the smell also affected her children's appetites, and her son sometimes experienced headaches and itchy eyes. She and her son would take Panadol and Nurofen for the headaches. She also incurred costs in efforts to deal with the odour, spending $580 on air purifiers and door and window sealers; 2. a resident of Minchinbury noticed the odour around and within her home from 23 March to 2 June 2021. She described the odour as a "mix between a sewer and a rubbish tip", "a toilet", a "rotting garbage" and "strong rotten eggs"; that was on occasion "absolutely vile" to the point that her "nostrils shrivelled". The odour caused her to have sleepless nights, to delay outdoor activities such as gardening and exercise; and to feel stressed and anxious. On 11 May 2021 she felt "like throwing up/vomiting" as a result of the odour; 3. the acting Principal at Minchinbury Public School noticed the odour permeating the school from 19 April to 25 June 2021. The odour was consistent, but its intensity varied over time. She described the smell as "a chemical smell, similar to rotting garbage and egg gas". The odour was bad enough to make her feel repulsed and uncomfortable, and that she did not want to stay outdoors. On a couple of occasions she noticed some of the staff members and students coughing. On two mornings she instructed staff and students to move indoors before class commenced and to close the windows because the odour was so strong; and 4. a Minchinbury resident noticed the odour in the area around his home three or four times a week for extended periods of the day from the commencement of the charge period. He described the smell as a "strong rotten egg" odour. He had to keep the doors and windows closed when it was present. If the windows were left open, the odour entered the house and lingered. He reported that the odour gave him headaches and sometimes made him feel like vomiting. He and his wife could not mow the lawn, garden, sit, or work outside for extended periods when the odour was present. His daughter and grandchildren lived next door. When the odour was present, he and his grandchildren avoided playing outside, which was an activity he enjoyed. 1. Of the 750 complaints received about the offensive odour in the vicinity of the landfill, 301 described the odour as "egg odour", 158 as "sulphur odour" and on 260 occasions no description was given. The EPA submitted that the 459 complaints describing the odour as "egg" or "sulphur" were referrable to the landfill. It is possible, however, that not all of the complaints received related to the odour given that there were other potential sources of odour in the area. Nevertheless, as DADEC conceded, there were a "high number of complaints". 2. DADEC argued that no direct adverse health effects had resulted from the commission of the offence. It relied upon the evidence of Dr Wright who opined as follows in her report: 5.2 Effects/ symptoms reported 53) Affidavits from community members provided in the Brief have identified the presence of a rotten egg odour. This is consistent with the presence of H2S at concentrations above the detection and recognition thresholds in the community at times as indicated in the measured data. 54) The affidavits from community members provided in the Brief, also included a number of symptoms reported by residents which included nausea, vomiting, cough, dry or irritated throat, respiratory issues (wheezing and difficulty breathing), dry or itchy eyes, headache, sleep issues. 55) The available H2S monitoring data do not indicate concentrations that are high enough to result in direct adverse health effects. However, the symptoms reported are consistent with those that may occur as a response to an offensive odour, as discussed in Section 4. These effects/symptoms would be transient in nature in response to variable levels of H2S in air and changes in the presence and perceived intensity of odours. This is consistent with information provided by NSW EPA for other communities impacted by odours from landfills (refer to Footnote 1). 5.3 Overview of opinion on potential for health effects 56) As detailed in Section 1, this SOE has been prepared to provide an opinion on specific questions. The following provides an overview of my opinion in relation to these questions. 57) Question: The likely health effects (if any) from exposure to H2S levels identified in the offsite monitoring results. 58) Response: This question has been addressed in Section 5.1. The off-site monitoring results have not identified the presence of H2S concentrations in excess of guidelines based on the protection of direct adverse health effects relevant to short-term exposures. The concentrations exceed the odour thresholds for H2S at times, for short periods of time. As odour detection and response is highly variable, some members of the community may perceive the odour as offensive. Offensive odours have been associated with a number of transient effects/symptoms (as detailed in Section 4). These symptoms relate to the body's response to an offensive odour. 59) Question: The likely duration of any health effects from the H2S exposure. 60) Response: The symptoms reported are consistent with the body's response to offensive odours. These symptoms would be expected to be transient in nature and would stop once the offensive odour is no longer present. 61) Question: Whether the effects reported by residents are consistent with exposure to the H2S levels identified. 62) Response: The effects reported by residents are consistent with symptoms associated with exposure to perceived offensive odours. While data is not available for the whole period of interest, based on the available H2S data the concentrations are not high enough to indicate that the symptoms would be the result of direct adverse effects of exposure to H2S. Further, all the symptoms reported by residents are consistent with those that are associated with exposure to offensive odours, and are not indicative of direct adverse health effects from exposure to H2S. 1. During cross-examination of the experts, the following relevant evidence emerged: 1. both experts agreed that the levels of H2S in the monitoring data from 9 June 2021, did not exceed the Western Australian Department of Health's guidelines ("the WA guidelines"), which state that "real human impacts from hydrogen sulphide are not likely until air levels reach at least 2 ppm for 30 minutes"; 2. the experts disagreed, whether, given that from the start of the charge period to 9 June 2021 there was no data available but the volume of complaints was considerably higher, the levels of H2S would have exceeded the WA guidelines (T22:25-26 and 44:25-28). Dr Wright opined that the monitoring data from 9 June 2021 onwards was so far below the levels of harm outlined by the WA guidelines that that it was "highly unlikely" for the concentrations of H2S in the period prior to that date would trigger those guidelines (T27:15-24); 3. there is a difference between physiological responses to odour triggering the vagal nerve and the body's nervous system thereby causing nausea and vomiting, and toxicological responses, causing changes at a cellular level, such as eye irritations, from contact with H2S. While the experts agreed that a physiological response is an adverse effect from exposure to H2S (for example, T17:01-04; 21:12-13 and 26:18), they disagreed on whether the adverse effect came from the emitted odour alone, or whether the odour combined with a concentration of H2S adversely affected persons (T21:17-28 and 58:47-50). Dr Wright stated that responses such as nausea and vomiting were caused by the offensive odour, rather than H2S levels being high enough to result in these symptoms (T26:20-23). Whereas, Dr Robertson stated that the effects described by the residents were consistent with direct exposure to H2S (a toxicological response) (T44:49-50), and stated that he was not aware of any studies that demonstrated that simply smelling an odour can result in eye irritation or coughing (T25:35-26:02); 4. it was agreed that terms such as "psychological" or "psychosomatic" to describe the adverse responses to the odour were unhelpful and should be avoided (T17:01-04 and 21:12-13); 5. the experts agreed that a person's perception of the source of an odour will influence their response to it. Dr Wright stated that the residents' responses may have been stronger because they believed the odour came from the landfill (T23:47; 24:01-19 and 32:22-34); and 6. the experts agreed that there was a high variability in the manner in which people respond to odours, with the most sensitive group 250 times more sensitive than the least sensitive group (T34:50-35:05). 1. Notwithstanding the areas of disagreement between the experts, DADEC ultimately accepted in oral argument that there was actual harm to the residents due to the emission of the offensive odour from the premises (T65:23-32). 2. DADEC resisted, however, the EPA's submission that the emission of H2S reached levels described as toxic consistent with the WA guidelines thereby causing direct irritative effects to the residents. The EPA eventually conceded that it could not prove beyond reasonable doubt that the H2S emitted consequence upon the commission of the offence exceeded WA guidelines (T145:36-42). 3. This concession was correctly made, in my view, on the evidence before the Court. I therefore do not find that the H2S levels were such that the WA guidelines were exceeded or that the commission of the offence caused toxicological harm to the affected residents. However, to reiterate, this is not to find that actual environmental harm, which includes harm to the residents, did not occur. It did. There can be no doubt whatsoever that the very real symptoms suffered by these individuals over several months amounted to "harm" as defined in the POEOA. This is so even if there were no long term sequelae and the adverse effects were transitory. 4. Finally, DADEC submitted that the Court could not take into account harm to persons outside the landfill premises as an aggravating factor. It submitted that to do so would constitute double counting because the definition of "offensive odour" in the POEOA includes harm to persons outside of the premises, making it an inherent characteristic of the offence (citing Elyard v R [2006] NSWCCA 43 at [10], [40]-[44], Andrews v The Queen (2006) 160 A Crim R 505 at [18], Hei Hei v The Queen [2009] NSWCCA 87 at [13]-[16], King v The Queen [2010] NSWCCA 33 at [34], R v Milat [2014] NSWCCA 29 at [94] and Kassoua v The Queen [2017] NSWCCA 307 at [14]). 5. It is not necessary to determine the correctness of this submission because, in my opinion, the Court can nevertheless take into account the harm caused to persons by the commission of the offence under s 241(1)(a) of the POEOA, and I do so. Whether the Offence Caused Substantial Injury, Emotional Harm, Loss or Damage 1. Whether the harm was substantial is a relevant consideration pursuant to s 21A(2)(g) of the CSPA. 2. The EPA submitted that the harm caused by the commission of the offence was substantial and that it therefore constituted an aggravating factor. It relied on the high number of complaints received in relation to the odour to suggest that a broad section of the local community was impacted. 3. In making this submission, the EPA relied upon the decision in CPB. That case involved four charges of the emission of an offensive odour caused by leachate generated from a landfill by drilling associated with the construction of WestConnex. The charges related to four distinct periods between 7 and 10.5 hours (at [47]-[50]). There was evidence from four local residents as to harm (at [71]). Harm to local residents included physical pain, illness, and difficulties breathing (including asthma attacks) (at [45]). Justice Pain found that the harm caused by the commission of the offences was "substantial and extensive" (at [46]). The EPA submitted that in the present case, the harm caused by DADEC was comparatively more serious than that caused by the defendant in CPB because the duration of the offences was longer, there were more complaints and the symptoms were more serious. 4. By contrast, DADEC disputed that the harm occasioned was not substantial. It submitted that CPB was distinguishable because the harm in that case was more serious, including severe health-related impacts to residents, such as asthma attacks and physical pain (at [47]-[50]). Comparatively, the symptoms reported by residents here did not transcend beyond the normal impacts of an offensive odour. 5. In addition to the expert evidence referred to above, DADEC relied on the Technical Framework to argue that the impact of the offensive odour was within the normal range and could not be described as "substantial": 1.1 Introduction Odours can affect public amenity and the community's quality of life. Within the community, there is a large range of reaction to odour. On the one hand there are people who are very sensitive to odour. This odour-sensitive sector of the population will react, often strongly, to odours that are barely noticeable to others, or will have an expectation of very low environmental odour levels. On the other hand there are others within the community (often because of their association with the odour-generating activity) who are more tolerant of higher odour levels. The bulk of the population lies between these two, being unaffected by low levels of odour and being prepared to accept certain levels of odour. Odours are the largest source of air pollution complaints to the Department's of Environment and Conservation (NSW) Environment Line. Odour problems generally arise when: • an activity is not operating in accordance with best management practice • odour has not been appropriately considered in the planning and approval of an activity • new or expanded urban development occurs near an existing odour-generating activity • an odour-generating activity is inappropriately located near residential development, or • an existing activity changes technology or increases the size of its operations, and this increases odour-generating activities. Controlling and managing odour is difficult for consent authorities, regulators, industry and the wider community because: • odours may cause psychological or physiological effects • the sensitivity to odours is variable • odour emissions are variable • the impact of odours can be subjective • odour dispersion modelling is not an exact science • odour emissions are difficult to monitor (creating difficulties in verifying performance). … Assessing whether odour is causing 'harm'. In determining if the odour-generating activity is causing harm to the complainant/s the number of complainants and complaints is irrelevant. Factors for consideration: • Is the odour causing physical harm (for example, headaches, asthma or nausea)? • Is the odour causing psychological harm? It would need to be established that there was a serious impact on the complainant, supported by medical evidence/advice. Assessing whether odour is causing 'unreasonable interference'. Factors for consideration: • Is the odour impact of short or long duration (for example, more than 1 hour)? • What is the frequency of odour impacts (for example, less than once per month or more then once per month)? • Is the complainant's normal activity affected by the odour impact (for example, sleep interruption, unable to open windows because of odour)? 1. In my opinion, there can be no doubt whatsoever that the harm caused by the commission of the offence was "substantial" for the purpose of the CSPA. While there was no evidence of any harm to the residents at a cellular level, there was a plethora of evidence that the many residents affected by the odour suffered very real psychological and physical harm, as well as considerable harm to their amenity. Although the harm caused was short-term and reflected normal incidents of offensive odour as set out in the Technical Framework, it nevertheless had profound physical and emotional consequences, which continued for several months, and which affected a significant number of people. Practical Measures That Could Have Been Taken to Prevent, Control, Abate or Mitigate the Harm 1. Section 241(1)(b) of the POEOA requires the Court to take into account the practical measures that may be taken to prevent, control, abate or mitigate harm to the environment. 2. The EPA submitted that the principal practical measure that DADEC could have taken, and which was ultimately implemented, was to install a LFG extraction and treatment system of sufficient capacity to remove malodorous compounds. When the third flare in the LFG extraction and treatment system became operational in June 2021, there was a material reduction in offsite odour and a consequent reduction in complaints. 3. In response, DADEC contended that it had undertaken extensive practical measures to prevent, control, abate and mitigate environmental harm caused by the emission of the offensive odour. Preventative measures taken prior to the commission of the offence included: 1. undertaking odour surveys to monitor for compliance with environmental conditions and standards, including the promulgation of the Landfill Guidelines; 2. engaging three independent and appropriately qualified consultancy companies, namely Barnett & May, Cardno and ERM, to undertake environmental audits, including an odour audit; and 3. applying cover to the surface of the waste, including additional cover where methane levels were above 500 ppm. 1. When the offensive odour became apparent in March 2021, DADEC undertook the following steps: 1. applying additional cover to the entirety of the landfill to a thickness of 200 mm, which was in excess of the requirements set out in the clean-up notice issued by the EPA; 2. sealing the leachate sump with a steel lid with a resilient seal and sealing gaps or cracks in the leachate riser; 3. engaging at least ten expert consultants to provide advice, undertake monitoring, auditing, testing and surveying in relation to the management of LFG and odour, and the installation and ongoing operation of a LFG treatment system; 4. installing a temporary LFG treatment system at the landfill between May and October 2021; 5. installing a permanent LFG treatment system at the landfill between October and December 2022; and 6. undertaking upgrades to improve the function of the leachate treatment system and to improve the drainage to the leachate sump, which had been impacted by the actions to cap and seal the leachate riser. 1. The EPA was critical of these measures on the basis that DADEC did not act sufficiently quickly in implementing them. Notably, the first expert was not engaged until 8 April 2021, approximately 13 days after the commencement of the charge period. Further, the temporary LFG extraction and treatment system was not trialled until 17 May 2021, 52 days after the commencement of the charge period. 2. In this context, the EPA relied upon the Peace email summarising the state of management at the landfill site in June 2021: …At present there is little or no forward planning or vision as to where the landfill is going in the coming months, the operators are doing what they can to keep things moving but have no direction as to what they are trying to achieve and just survive on a day to day basis… As of yet I am to see any sort of plan to manage stormwater in the event of heavy rainfall, at present this will pond at the leachate riser until either draining into the cell creating leachate, or contaminating on the surface creating leachate & odour. In the absence of any stormwater retention ponds we have suggested that a pump be put in place with a bowser. This is so that in a rain event we can pump from the low point to the water truck and use the water to pray or dust suppression etc around site, this may not be the final solution but it would be better than having no plan at all. … In summary 1. Need for a landfill manager, landfill foreman and a landfill engineer. Site is not planned and is just coping day to day. This is essential for the ongoing operation. 2. Operators on site making their own calls on site. Operators calling up dump trucks etc when the wish instead of a structured approach. … 5. Storm water management is non existent ! Urgently need the development of storm water management plans and contingencies! Currently nowhere for storm water to be pumped. … 11. No monitoring of cover usage, and cover not being controlled. When cover is placed its is not placed evenly to levels and rolled. Cover placed with soil compactor leaving holes which will hold water in rain events. … 17. Majority of operators in experienced and uneducated in plant efficiencies. 18. No policing of equipment Pre start checks or maintenance 19. No policing of company policies or rules on site, despite an array of procedures on paper. 1. In cross-examination Hassett accepted the criticisms contained in the email (T79:18-41): Q. All right. As you read those points 1 to 19, do they reflect comments from Mr Peace that suggests the landfill was being properly and efficiently run as at the date of his email? A. No, but I think ‑ I think two contexts should be put in relation to his comments. Graham was putting a ‑ a view together that for them to take over on a longer‑term basis. So, obviously he was putting what he would do as a contractor and taking over, as in what they did at Suez, and I think, you know, some of the comments there, I don't think there's any inaccuracies in there, but I think they're probably a little bit harsh in some areas. Q. All right, but you engaged Mr Peace because you were familiar with his capabilities, correct? A. I was familiar with his capabilities, and he was the only person that was available at the time, to be honest. Q. Well, if you thought he was no good, you wouldn't‑‑ A. No, no, that's correct. I know Graham, yes. Q. He was a respected former colleague at your time at Suez? A. Yes. Q. And you must have taken proper note of what he raised in this email at the time, correct? A. Yes. 1. Hassett also conceded that a reasonable landfill operator would have installed a LFG extraction system prior to the odour issue arising in the manner that it did (T80:03-81:02). 2. It must be acknowledged that prior to the charge period, DADEC had implemented a number of measures to manage odour. In addition, during the charge period DADEC undertook further action to mitigate the environmental harm caused by the commission of the offence. There were, however, further practical measures that DADEC could, and should, have taken to prevent and minimise the harm caused, for example, installing a LFG extraction system. Reasonable Foreseeability of the Harm Caused or Likely to be Caused to the Environment 1. Section 241(1)(c) of the POEOA states that the Court must have regard to the extent to which the offender could reasonably have foreseen the harm caused, or likely to be caused, to the environment. 2. The EPA submitted that the harm caused or likely to be caused by the commission of the offence was reasonably foreseeable because: 1. the AQOGGMP stated that if elevated methane or carbon dioxide levels were confirmed in quarterly LFG emission surveys, then remediation measures should be immediately considered and a proposal for remediation be provided to the NSW Office of Environment and Heritage. Identified remediation measures were dependent on the scale of the problem. In addition, that document observed that because "the waste characteristic of the landfilled waste are non-putrescible, it is expected that landfill gas will not represent a major issue. However, since a small proportion of waste will be of organic nature (but not necessarily putrescible) gas emissions in the future cannot be entirely ruled out"; 2. DADEC's LFGMP which identified that if greater than 500 ppm of methane was found at any point on the landfill surface, corrective action should be taken, such as repairing or replacing cover material, or adjusting or installing gas extraction equipment; 3. that despite being notified of 12 methane detections above 500 ppm during 2016-2020, prior to the installation of the temporary gas extraction and treatment system in May 2021, DADEC had no system in place to extract, capture or treat the LFG generated by the waste in the landfill. This was notwithstanding the fact that the landfill was located in an area of Sydney with nearby residents who could be affected by the emission of an offensive odour emanating from it; and 4. the analysis attached to the Arcadis email identified "major gaps" in DADEC's LEMP, including the absence of an LFG extraction system and an LFG flare. 1. DADEC did not accept that the harm was reasonably foreseeable. It submitted that it had acted consistently with the advice that it had received from independent experts and that it had not been advised that the emission of offensive odour from the landfill was likely to be an issue. Furthermore, it had not been advised that an LFG treatment system, or any system, was required to address methane at the landfill. It was not until the extreme rainfall event occurred in March 2021 that the offensive odour was emitted. 2. DADEC also refuted the gaps analysis in the Arcadis email. It submitted that the analysis was no more than "high-level" advice forming part of Arcadis's fee proposal. An LFG extraction system was identified in the "Major Gaps" column, however, it was not referred to in the "Recommendation" or "Comments" columns. DADEC further stated that while the LFG extraction system was identified as a gap in its LMP, it was nonetheless present in other plans. 3. I am satisfied to the requisite extent that the emission of offensive odours from the landfill was reasonably foreseeable. DADEC's knowledge of the risk of the generation of LFG and its associated odour, including the impact of weather conditions on odour dispersion, the fact that methane levels were detected above 500 ppm on 12 occasions prior to the charge period, and the fact that there was a similar rainfall event in February 2020 which preceded the event in March 2021, all disclose the reasonable foreseeability of the emission of offensive odours from the landfill. Further, the identification of an LFG extraction and treatment system as a major gap in the gaps analysis in the Arcadis email put DADEC on notice of the inherent risk of environmental harm by not installing such a system and that its failure to do so could cause harm to the environment. Control over the Causes of the Commission of the Offence 1. The extent to which the person who committed the offence had control over the causes that gave rise to it must be considered by the Court (s 241(1)(d) of the POEOA). 2. The EPA submitted that DADEC exercised control over the landfill from which the offensive odour emanated and over the measures that could have been adopted to mitigate that odour, insofar as it owned and occupied the land where the landfill was located. 3. DADEC accepted that it had control over the landfill and the measures taken to control the odour. It disputed, however, that it had control over the extreme rainfall in March 2021 which precipitated the commission of the offence. 4. DADEC submitted that prior to this event, the measures that it had implemented to control odour from the landfill had been effective. Further, it had not been advised that an LFG extraction and treatment system was required to mitigate the possibility of odour created by a severe rainfall event. 5. I find that as the owner and occupier of the landfill, DADEC had complete control over the commission of the offence. It was within DADEC's power to implement measures to prevent and mitigate odour emitted from the landfill. By failing to install a LFG extraction and treatment system, I find that DADEC did not implement a practical measure available to it to avoid or mitigate the impact of offensive odour emitted. 6. Regarding the rainfall event of March 2021, it was incumbent upon DADEC to anticipate and plan for the possibility of an extreme weather event, especially where the frequency of such events has increased as a result of climate change (which may be accepted as a matter of judicial notice), and to implement measures to mitigate the risks such an event posed to its operation. This is necessary for companies operating in the waste industry where extreme weather events occur and can pose acute risks. DADEC had control over the implementation of measures to mitigate against severe climate related risks, and therefore, had complete control over the commission of the offence. Whether the Offence Involved Multiple Victims 1. Section 21A(2)(m) of the CSPA requires the Court to consider whether the commission of the offence involved multiple victims as a factor in aggravation. 2. The EPA submitted that it did, applying the reasoning in Environment Protection Agency v Nulon Products Pty Ltd [2015] NSWLEC 153 (at [126]-[129]): 126 I now turn to consider the extent of the engagement of s 21A(2)(m) of the Sentencing Procedure Act, a provision in the following terms: (m) the offence involved multiple victims or a series of criminal acts, 127 During the course the proceedings, I invited Mr Nash to address me on this point given the wide range of complaints (particularly those of the employees of Sphere Healthcare) concerning the impact that the incident had on members of the general public. In response, Mr Nash made the following submissions on this point: Your Honour, the submission that is put — and I think I say this with the agreement of the prosecutor — is that the words "multiple victims" as used in that incident would not be captured by the type of victim, as you might call it, in this instance. Yes, members of the public were affected by the emission of the odour and the compounds that were released into the atmosphere, but I think the agreed position of the parties is that for the purposes of the description of multiple victims of crime, they are not victims of crime in the sense used in that provision of the Act. 128 I am unable to accept Mr Nash's submission as to how this element of the Sentencing Procedure Act should be viewed in the circumstances of the incident giving rise to these proceedings. 129 I have earlier set out in some detail the extent of the actual harm that was occasioned by the incident and the number of people impacted over a wide geographic spread. It seems to me that this specifically engages the concept of "multiple victims" as it is properly to be understood (see R v Tadrosse [2005] NSWCCA 145 ; 65 NSWLR 740 at [28]–[29] per Howie J). 1. In the present case, to the extent that a considerable number of residents were adversely impacted by the odour, I find that the commission of the offence involved multiple victims. Conclusion on Objective Seriousness 1. Considering the objective circumstances of the commission of the offence, I find that it is in the upper mid-range of objective seriousness. Subjective Circumstances 1. A proportionate sentence requires the Court to take into account any mitigating factors that are personal to DADEC (s 21A(3) of the CSPA). The relevant subjective circumstances are considered below. Early Guilty Plea 1. A guilty plea entered at the earliest available opportunity entitles a defendant to the full 25% discount for the utilitarian value of that early plea (ss 21A(3)(k) and 22 of the CSPA and R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [160]). 2. DADEC pleaded guilty to the offence on 2 June 2023, approximately one year after the proceedings were commenced, but on the same day that the EPA filed an amended summons. The amended summons particularised what DADEC did to cause the emission of the odour, which had previously not been provided. DADEC submitted that it was unreasonable to plead to the charge before particulars were given (relying on Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 at [20]-[25]). 3. By contrast, the EPA submitted that DADEC's guilty plea was not entered at the earliest possible opportunity. 4. I accept that DADEC entered an early guilty plea, albeit not at the earliest opportunity. It is therefore entitled to a substantial discount on penalty to reflect this fact. I find that it is entitled to a 20% discount for its early plea of guilty. Assistance to the Authorities 1. The EPA submitted that DADEC's actions in taking steps to reduce the odour by complying with the revised conditions of its EPL and the clean-up notice should not be taken into account as a factor in mitigation (ss 21A(3)(m) and 23 of the CSPA), because in doing so it was merely complying with the law and a failure to do so could constitute further transgression of the POEOA (EPA v Minto Recycling Pty Ltd [2019] NSWLEC 193 at [121]-[123] and Secretary, Department of Planning, Industry and Environment v Wollongong Recycling (NSW) Pty Ltd [2020] NSWLEC 125; (2020) 245 LGERA 241 at [63]-[64]). 2. DADEC submitted that it had provided complete cooperation with, and assistance to, the EPA, including by: 1. arranging for employees of all levels of seniority, including operations staff and members of Bingo's executive team, to meet with the EPA's inspectors at its offices and at the landfill. These meetings occurred frequently and often at short notice; 2. responding to requests for information from the EPA on a voluntary basis during and following the charge period, in addition to responding to statutory notices to produce information and records and to answer questions; 3. providing the EPA with regular updates, on a voluntary basis, of the works undertaken at the landfill; 4. agreeing to a lengthy statement of agreed facts, which included a number of admissions; and 5. only requiring one of the EPA's witnesses for cross-examination. 1. While the submission of the EPA is correct insofar as to merely comply with a statutory duty is not "assistance" for the purpose of the provision, I nevertheless find that DADEC's actions went beyond this and that it provided assistance to the EPA in the prosecution of the offence (ss 21A(3)(m) and 23 of the CSPA). I take this factor in mitigation into account. Contrition and Remorse 1. Pursuant to s 21A(3)(i) of the CSPA, remorse is only a mitigating factor if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), 1. In Waste Recycling Preston J remarked that "contrition and remorse will be more readily shown by the offender taking actions, rather than offering smooth apologies through their legal representatives" (at [203]). His Honour went on to suggest four ways by which an offender may demonstrate genuine contrition and remorse, which are relied upon here without repetition (at [204], [210], [212] and [214]). 2. In his affidavit, Hassett expressed contrition and remorse for the impact that the offensive odour had on the residents of suburbs near the landfill. He stated that "the Group recognises and accepts that the emission of offensive odour from the landfill was not acceptable" and that "some residents of nearby suburbs suffered as a result of the odour and that the odour interfered with the enjoyment of their homes". He observed that DADEC has spent a considerable sum of money on addressing and resolving the causes of the odour. 3. The EPA conceded that it was open to the Court to find that DADEC has accepted responsibility for its actions and has acknowledged the injury, loss and damage that it has caused by the commission of the offence. I agree. Prior Convictions 1. DADEC has prior convictions for two offences contrary to cl 80(4) of the Protection of the Environment Operations (Waste) Regulation 2014 for failing to cover asbestos waste at the landfill. DADEC was fined $23,300, ordered to pay the EPA's costs of $25,000, and to publish details of the offences in Inside Waste magazine on 19 July 2018. 2. By way of mitigation, DADEC noted that both offences were committed on the same date and concerned asbestos fragments which had been tipped into the landfill. DADEC has had no history of failing to control the emission of offensive odour from its premises. Furthermore, as soon as the offence was committed DADEC acted to address the problem. The commission of the offence in the present case was therefore an uncharacteristic aberration. 3. While DADEC's prior convictions do not manifest a pattern of disobedience with the law, I nevertheless take them into account. Good Character of DADEC and the Likelihood That It Will Reoffend 1. In the Hassett and Dent affidavits, DADEC adduced evidence as to the good character of the corporate "Group" to which it belongs and of its parent company, Bingo. Relevantly, that Bingo: 1. is committed to the environment and sustainability, as evidenced by its move towards a circular economy through its corporate vision of "Pushing for a waste free Australia"; 2. is committed to lowering its greenhouse gas emissions as demonstrated by, for example, the installation of solar panels at the landfill premises and Bingo's Climate Change Statement, its abatement of green gas emissions, and the development of a decarbonisation pathway, with a target of reducing baseline carbon emissions by 50% by 2030; and 3. is dedicated to the environment and sustainability as demonstrated by Bingo's involvement, on behalf of itself and DADEC, with a number of community partners, including: 1. Planet Ark, which assists businesses to reduce their impact on the planet through positive environmental actions and education; 2. the Australian Circular Economy Hub, Australia's first national coordinated circular economy platform; 3. Djurwa Waste Management, a majority First Nations owned and led recycling and waste management service provider, which aims to generate employment and training opportunities for Indigenous people; 4. the Green Building Council of Australia, a not-for-profit organisation committed to the development of a sustainable property industry; 5. the Infrastructure Sustainability Council, a not-for-profit organisation committed to sustainability in infrastructure that maintains the Infrastructure Sustainability Rating Scheme; and 6. RE100, a global initiative aimed at bringing together influential businesses committing to achieving 100% renewable electricity. 1. In reply, the EPA submitted that there was no evidence that any community or charitable based activities had been engaged in by DADEC itself. Just as it would be impermissible to take into account the antecedents of the other corporate entities in the "Group", including Bingo, it was impermissible to consider the positive contributions of the other related entities for the purposes of mitigation (Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Budvalt Pty Ltd; Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Harris [2020] NSWLEC 113 at [65]). Accordingly, the good character of the "Group" cannot, without more, be attributed to DADEC (Stephen James Orr v Narrabri Coal Operations Pty Ltd; Stephen James Orr v Narrabri Coal Pty Ltd [2021] NSWLEC 85 at [216]-[219]). Alternatively, only limited weight can be placed on the evidence (Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 at [25]). 2. During cross-examination Hassett clarified his evidence by stating that Bingo participates in a number of charitable industries on behalf of itself and the other members of its Group, including DADEC (T69:20-40). 3. On the basis of this clarification I take into account DADEC's evidence of its good character, however, I give it less weight than I otherwise would if the activities had been undertaken exclusively by DADEC. 4. In relation to the likelihood of re-offending, DADEC noted that the offence was inadvertent and that it had taken steps to ensure no future offensive odour was emitted from the landfill (including employing a full-time landfill manager and developing a new LFGMP), thereby demonstrating that its likelihood of re-offending is low. 5. In cross-examination, Hassett stated that, in his view, the risk of DADEC re-offending was low because (T82:35-43): Q. With the best will in the world, you can't say hand on heart, can you, that there's no risk of future reoffending in relation to odour at the landfill? A. I can - I can't say never, but what I can say is that the now we have contractors who are fully engaged in the maintenance of the landfill. I think that the - you know, both from a regulator perspective, from inspections of the landfill, they would see probably the best run landfill in Sydney at this point in time, leachate systems that are operating to capacity, so I don't see this landfill as being any more problematic than any other landfill in the market to create odour. 1. Later he added (T87:11-23 and 87:47-50): Q. Could I show you this document. I've opened it at page 11 of the exhibit, and just can you confirm that that is the document that refers to the modification that we've spoken that you've just given evidence about? You'll see at section 2.1, the applicant has lodged a modification application under to install a permanent LFG flare system. A. Yes. LARKIN: Could you go to page 19 of that document. Could I direct your attention to the last paragraph, above the heading 5.2 other issues. Firstly, were you aware that the department had concluded in its assessment of that application that potential air impacts would be adequately minimised and managed to ensure no detrimental air quality or odour impacts on nearby residents? … Q. And is the department ‑ was the department's assessment that I've just taken you to a matter which informs your assessment that the risk of any future problems in relation to odour is low? A. Yes, I believe it's low. 1. I find on the evidence before the Court that the likelihood that DADEC will reoffend is low. Deterrence, Denunciation and Retribution 1. The Court is required to take into account both specific and general deterrence (Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 at [569]-[570]). 2. The penalty imposed by the Court must serve as a general deterrent (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at [359], Camilleri's Stock Feeds at [701] and Bentley at [139], see also s 3A(b) of the CSPA). In Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278 Preston J discussed general deterrence in the context of sentencing for environmental crime (at [66]-[68]). Those principles are respectfully adopted and applied here. 3. I accept that embedded in the determination of the appropriate sentence to be imposed on DADEC is an element of general deterrence in order to ensure that other operators in the waste industry prevent offensive odours resulting from their operations from being emitted (Camilleri's Stock Feeds at [701] and Axer at [357]). 4. In relation to specific deterrence (s 3A(b) of the CSPA), the EPA submitted that because DADEC is the holder of two EPLs and is a large active participant in the waste industry in NSW, including in the operation of landfills, the penalty imposed upon it must serve to reinforce its overriding responsibility to ensure that the activities that it conducts are lawful (Environment Protection Authority v Elf Farm Supplies Pty Ltd [2017] NSWLEC 60 at [97]). I agree. 5. Finally, the Court must impose a sentence that achieves the purposes of denouncing the conduct the subject of the offence and making DADEC accountable for its actions. Consistency in Sentencing 1. The task of the sentencing court is to seek even-handedness in the imposition of a sentence (R v Oliver (1980) 7 A Crim R 174 at [177] and R v Visconti [1982] 2 NSWLR 104 at [107]). Care must be taken in comparing cases where the circumstances of, and facts relating to, the offences may be quite different (Axer at 365). 2. The parties referred the Court to a number of comparable cases that they submitted were of assistance in ensuring even-handedness in sentencing. These included: CPB, Environment Protection Authority v Wambo Coal Pty Ltd [2016] NSWLEC 125; Hunter Valley Energy Coal, Environment Protection Authority v Unomedical Pty Ltd (No 4) [2011] NSWLEC 131, Camilleri's Stock Feeds, Environment Protection Authority v Illawarra Coke Company Pty Ltd [2002] NSWLEC 21; (2002) 118 LGERA 451; Environment Protection Authority v Nationwide Oil Pty Ltd [2002] NSWLEC 201; Environment Protection Authority v Burrangong Meat Processors Pty Ltd [2003] NSWLEC 102; Environment Protection Authority v Cargill Australia Ltd [2004] NSWLEC 334; Environment Protection Authority v Cargill Australia Ltd (No 2) [2004] NSWLEC 421 and Environment Protection Authority v Shoalhaven Starches Pty Ltd [2006] NSWLEC 685. 3. Many of the cases concerning similar offences were helpfully summarised in Unomedical (No 4) (at [143]-[147]) and a useful summary of the decisions in Hunter Valley Energy Coal and Wambo is contained in CPB (at [78]-[81]). 4. The Court has considered the comparable cases referred to it, having regard to the similarities and differences in their objective and subjective circumstances compared to the facts of the present case. 5. In particular, it has taken into account CPB as the decision most factually analogous to the present proceedings. In that case (see the facts summarised above at [103]), the Court found the commission of the offences were in the mid-range of objective seriousness (at [61]) because the harm caused by the offensive odour was "substantial and extensive" (at [46]), was reasonably foreseeable (at [51]), there were practical measures the defendant could have taken to prevent the odour being emitted (at [54]-[59]) and because the defendant had ultimate control over the commission of the offences (at [60]). Mitigating factors included the defendant's early guilty plea (at [65]), the absence of any prior convictions for environmental offences (at [67]), its good character (at [69]), that it was unlikely to reoffend (at [70]), its expression of contrition and remorse (at [71]) and its cooperation with the EPA (at [73]). The Court ultimately ordered the defendant to pay $295,000 to the Environmental Trust in lieu of a fine pursuant to s 250(1)(e) of the POEOA (at [84]). In addition, the Court made a publication order under s 250(1)(a) of the POEOA (at [83]). Costs 1. The EPA sought an order for its professional costs pursuant to s 257B of the POEOA, as agreed or assessed under s 257G of that Act. The costs are likely to be sizable. Indeed, the EPA estimates that they are approximately $365,000. 2. The EPA also sought an order that DADEC pay its investigation costs and expenses pursuant to s 248 of the POEOA, in the sum of $42,575. 3. DADEC did not oppose the making of either order. 4. In the exercise of its sentencing discretion the Court can consider any costs payable by the defendant (Environment Protection Authority v Causmag Ore Company Pty Ltd [2015] NSWLEC 58 at [123] and Environment Protection Authority v Barnes [2006] NSWCCA 246 at [78]-[88]). I have therefore taken the payment of the costs for which DADEC is liable into account in determining the appropriate sentence to be imposed upon it. Appropriate Sentence 1. Having regard to the objective seriousness of the offence and the mitigating subjective factors of DADEC, together with the penalties imposed in the relevant comparable cases, I find that the imposition of a monetary penalty of $350,000 is warranted for the commission of the offence. 2. After the application of the 20% discount for the utilitarian value of the early guilty plea, the penalty is reduced to $280,000. Moiety 1. The EPA contended that half of any monetary penalty imposed by the Court ought to be paid to it pursuant to s 122 of the Fines Act 1996. DADEC did not cavil with the suggestion. Having regard to all of the circumstances of the case, I find that it is appropriate to make such an order, notwithstanding that DADEC is liable for the EPA's costs, including investigation costs. Environmental Service Order 1. The EPA also sought an environmental service order pursuant to s 250(1)(e) of the POEOA, for DADEC to pay a certain amount towards a specified project for the restoration or enhancement of the environment or for general environmental purposes. The amount was to be paid to the Western Sydney Parklands Trust for the "Bringing Back the Bush at Bungarribee Park" project. 2. While DADEC agreed to the making of an environmental service order, it proposed an alternate project, namely, payment of part of its monetary penalty to the Council for the remediation of the Olive Grove along the Katamala walkway and the planting of street trees along Minchin Drive, Minchinbury. The project is described in a letter from the Council to the Registrar of the Court, dated 7 December 2023. The letter details the project and attaches a Tree Assessment and Management Report, dated November 2022. DADEC submitted that the project would have a more positive impact on the community most adversely affected by the commission of the offence. 3. In my opinion, while both projects are laudable and are capable of delivering tangible environmental benefits to the community affected by the commission of the offence, the project proposed by DADEC will have a more significant impact and provide a greater benefit to the affected community. Given that the commission of the offence had serious impacts on the local community, the project proposed by DADEC is more appropriate than that suggested by the EPA. The making of such an order is consistent with the purpose of sentencing found in s 3A(g) of the CSPA, which recognises the harm done to victims of the crime and the community. 4. A brief description of the project is annexed at 'A' to this judgment. 5. It is important that an order made under s 250(1)(e) of the POEOA be accompanied by publicity informing the public that the works carried out as a result of the environmental services order are because DADEC committed an offence and not for some other reasons, such as altruism (Environment Protection Authority v Baiada Poultry Pty Limited [2008] NSWLEC 280; (2008) 163 LGERA 71 at [59] and Environment Protection Authority v Centennial Newstan Pty Ltd [2006] NSWLEC 732 at [141]). Publication Order 1. In the context of sentencing, a publication order serves the functions of general deterrence, denunciation and a recognition of the harm caused by the offending conduct (Environment Protection Authority v Bartter Enterprises Pty Ltd (No 4) [2021] NSWLEC 45 at [105] and Environment Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90 at [76]). 2. The EPA seeks a publication order pursuant to s 250(1)(a) of the POEOA. DADEC does not oppose the making of such an order. The terms of the agreed publication order are set out at annexure 'B' to this judgment. Notice to Residents 1. The EPA also seeks notification by letterbox drop, that is, an order that DADEC cause a notice to be placed in the mailboxes of all properties, whether residential or commercial, in 66 streets in Eastern Creek, Erskine Park, Minchinbury, Rooty Hill and St Clair, which are said to comprise all non-industrial streets in Minchinbury and any street from which two or more complaints were received by the EPA in respect of the odour. 2. The order is resisted by DADEC, which submits that it is unnecessary, given that it is proposed that the local community will be notified of the commission of the offence and the sentencing outcome in the Blacktown Advocate. Details of the commission of the offence and the sentencing outcome will also be available on Bingo's Facebook wall and LinkedIn page. Publication by these mediums would "sufficiently address the question of local publication" (Environment Protection Authority v Sydney Water (No 2) [2023] NSWLEC 2 at [116]). 3. DADEC's offending conduct was not trivial and occasioned substantial actual environmental harm, including harm to many of the residents who lived proximate to the landfill. The harm continued for a period of months. These factors weigh in favour of making a letterbox drop notification order. The order reflects the seriousness of DADEC's offending conduct and serves as a deterrent to others. The making of such an order also serves to denounce the conduct of DADEC in the community in which it offended. The terms of the letter to be distributed and the streets where distribution is to take place are annexed at 'C' and 'D', respectively, to this judgment. Orders 1. In conformity with the reasons given above, the Court makes the following orders: 1. the defendant is convicted of an offence contrary to s 129 of the Protection of the Environment Operations Act 1997, as charged; 2. the defendant is to pay a monetary penalty in the sum of $280,000; 3. pursuant to s 122 of the Fines Act 1996, 50% of the monetary penalty payable by the defendant pursuant to order 2 is to be paid to the prosecutor by way of moiety; 4. pursuant to s 250(1)(e) of the Protection of the Environment Operations Act 1997, in lieu of payment of the monetary penalty referred to above in order 2, the defendant is to pay $140,000, within 28 days of this order, to the Blacktown City Council ("the Council") for the purposes of the restoration or enhancement of the environment as described in the letter from the Council to the Registrar of this Court dated 7 December 2023 and annexed at 'A' to these orders ("the Sustainability Initiative"); 5. pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, for the period of 24 months from the date of these orders all public references made by the defendant (including all public references it causes to be made by Bingo Industries Limited) to its contribution to the Sustainability Initiative are to be accompanied by the following statement: Dial-A-Dump (EC) Pty Ltd's contribution to the Sustainability Initiative is part of a penalty imposed by the Land and Environment Court of New South Wales. Dial-A-Dump (EC) Pty Ltd was convicted of an offence against s 129 of the Protection of the Environment Operations Act 1997 (NSW) for the emission of offensive odour from the Bingo Eastern Creek Landfill at Honeycomb Drive, Eastern Creek NSW between 26 March 2021 and 16 June 2021. 1. pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, the defendant, at its own expense, is to: 1. within 28 days of the date of this order, cause a notice of a minimum size of 139 mm x 129 mm to be published within the first 12 pages of The Sydney Morning Herald, with the text of such notice and the Bingo Industries Limited logo (of a reasonable size) to be as set out in accordance with annexure 'B' to these orders; 2. cause a notice of a minimum size of a quarter of a page to be published within the first 12 pages of the next available edition of Inside Waste following the making of this order, with the text of such notice and the Bingo Industries Limited logo (of a reasonable size) to be as set out in accordance with annexure 'B' to these orders; and 3. cause a notice of a minimum size of a quarter of a page to be published within the first 12 pages of the next available edition of the Blacktown News following the making of this order, with the text of such notice and the Bingo Industries Limited logo (of a reasonable size) to be as set out in accordance with annexure 'B' to these orders; 1. pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, the defendant, at its own expense, is to: 1. within 14 days of the date of this order, cause Bingo Industries Limited to publicise the offence and the orders made against the defendant by posting the text of annexure 'B' to these orders on its Facebook wall together with a hyperlink directly to the Court's judgment as published on the New South Wales Caselaw website, tagging the Environment Protection Authority in the post. The Facebook post is to be made between the times of 8 am and 10 am or between 4.30 pm and 6.30 pm on a weekday. The post must remain as a pinned post at the top of the Bingo Industries Facebook page for a minimum of seven days; and 2. within 14 days of the date of this order, cause Bingo Industries Limited to publicise the offence and the orders made against the defendant by posting the text of annexure 'B' to these orders on its LinkedIn page together with a hyperlink directly to the Court's judgment as published on the New South Wales Caselaw website, tagging the Environment Protection Authority in the post. The LinkedIn post is to be made between the times of 8 am and 10 am or between 4.30 pm and 6.30 pm on a weekday. The post must remain pinned at the top of the Bingo Industries Limited LinkedIn page for a minimum of seven days; 1. within seven days of the date of publication of the notices referred to in order 6 and the posts referred to in order 7, the defendant must provide the prosecutor with a complete copy of the notices as published and a screenshot of the pinned posts; 2. pursuant to s 250(1)(b) of the Protection of the Environment Operations Act 1997 the defendant is to cause a notice in the form of annexure 'C' to these orders to be delivered to the street addresses referred to in annexure 'D' to these orders; 3. pursuant to s 248 of the Protection of the Environment Operations Act 1997, the defendant is to pay the prosecutor's investigation costs of the proceedings in the amount of $42,575; 4. pursuant to s 257B of the Criminal Procedure Act 1986, the defendant is to pay the prosecutor's costs as agreed or assessed under s 257G of that Act; and 5. the exhibits are to be returned. Annexure A – Environmental Services Order Annexure B - Terms of Media Publication Notice [Bingo Industries Limited logo] Dial-A-Dump (EC) Pty Ltd convicted and fined for the emission of rotten egg gas odour from the Bingo Eastern Creek Landfill, impacting community members Dial-A-Dump (EC) Pty Ltd ("DADEC"), a fully owned subsidiary of Bingo Industries Limited, was prosecuted by the NSW Environment Protection Authority ("EPA") for causing the emission of offensive odour from the Bingo Eastern Creek Landfill ("landfill"). Between 26 March and 16 June 2021, a rotten egg gas odour associated with landfill gas was emitted from the landfill. This impacted residents in nearby suburbs including Minchinbury, Eastern Creek, and Horsley Park. The landfill gas contained hydrogen sulfide gas, which has an unpleasant rotten egg odour. In addition to the unreasonable interference with their comfort, affected residents suffered symptoms as a result of exposure to the odour, which varied from person to person, including throat and eye irritation, coughing, breathing difficulties, headache, nausea, insomnia, stress and anxiety. There is no evidence of any long-term health effects as a result of the odour. During the offence period, DADEC had not installed a landfill gas extraction and treatment system of sufficient capacity to extract landfill gas and to treat it to remove malodorous compounds. Dial-A-Dump is sincerely remorseful for the impact of the odour on the community. Since the commission of the offence, Dial-A-Dump has spent over $6 million on a range of measures to control and prevent future odour issues, including to install and commence operation of a permanent landfill gas extraction and treatment system in the landfill. On 20 March 2024 the Land and Environment Court of New South Wales convicted DADEC for causing the emission of the offensive odour and ordered that it: 1. pay a total monetary penalty of $280,000, half of which is to be paid to the EPA and half of which is to be paid to Blacktown City Council for the purposes of a specified project for the restoration or enhancement of the environment for the benefit of the community affected by the commission of the offence; 2. pay the EPA's investigation and legal costs; 3. at its own expense, publish this notice in The Sydney Morning Herald, the Blacktown News and Inside Waste magazine, and put a pinned post of this notice on Bingo Industry Ltd's Facebook and LinkedIn pages; and 4. provide notice of the outcome of the proceedings to street addresses in the area affected by the commission of the offence. The Court's judgment may be accessed at [insert URL for judgment on Caselaw NSW]. Annexure C - Notice to residents [Bingo Industries Limited letterhead] Dear Resident, I am writing to you in respect of the emission of an offensive odour that occurred between late March to mid June 2021 from the Bingo Eastern Creek Landfill at Honeycomb Drive, Eastern Creek ("landfill"), operated by Dial-A-Dump (EC) Pty Ltd ("DADEC"). Between 26 March and 16 June 2021, rotten egg gas odour associated with landfill gas was emitted from the landfill. This impacted residents in nearby suburbs including Minchinbury, Eastern Creek, and Horsley Park. The landfill gas contained hydrogen sulfide gas, which has an unpleasant rotten egg odour. In addition to the unreasonable interference with their comfort, affected residents suffered symptoms as a result of exposure to the odour, which varied from person to person, including throat and eye irritation, coughing, breathing difficulties, headache, nausea, insomnia, stress and anxiety. There is no evidence of any long-term health effects as a result of the odour. During the offence period, DADEC had not installed a landfill gas extraction and treatment system of sufficient capacity to extract landfill gas and to treat it to remove malodorous compounds. On behalf of Dial-A-Dump and Bingo, I express my genuine and sincere apologies to the community for the odour and the impact it had on the community. Dial-A-Dump and Bingo take their environmental responsibilities very seriously and, by committing the offence, Dial-A-Dump did not meet the high environmental standards it sets for itself in providing its services. Since the commission of the offence, we have invested over $6 million on a range of measures to control odour, including to install a landfill gas extraction and treatment system to remove odours to prevent a similar offence from being committed in the future. The New South Wales Environment Protection Authority ("EPA") subsequently prosecuted DADEC in relation to the incident. DADEC pleaded guilty to one offence of causing the emission of offensive odour contrary to s 129(1) of the Protection of the Environment Operations Act 1997. On 20 March 2024, the Land and Environment Court of New South Wales convicted DADEC of the offence and ordered it to: 1. pay a total monetary penalty of $280,000, half of which is to be paid to the EPA and half of which is to be paid to Blacktown City Council for the purposes of a specified project for the restoration or enhancement of the environment for the benefit of the community affected by the commission of the offence; 2. pay the EPA's investigation and legal costs; 3. at its own expense, publish this notice in The Sydney Morning Herald, the Blacktown News and Inside Waste magazine, and put a pinned post of this notice on Bingo Industry Ltd's Facebook and LinkedIn pages; and 4. provide notice of the outcome of the proceedings to street addresses in the area affected by the commission of the offence. The Court's judgment may be accessed at [insert URL for judgment on Caselaw NSW]. [Signature block of Chief Development and Stakeholder Officer] Annexure D – List of Streets to Which a Notice in the Form of Annexure 'C' is to be Delivered to Properties Eastern Creek Erskine Park Minchinbury Rooty Hill St Clair Seppelt Street Fantail Crescent Agrafe Place Labrador Street Explorers Way Wallgrove Road Cockatoo Road Alicante Street Ann Minchin Way Aspinall Avenue Ava Close Bament Place Barossa Drive Bayly Street Bergin Place Bernier Street Booth Place Bouchet Crescent Bunker Street Burgundy Place Buring Crescent Chablis Place Chalet Place Charmer Crescent Cobbler Crescent Combet Place Cuvee Place Eber Place Eskdale Street Espalier Place Everitt Crescent Fairburn Crescent Farrington Street Ferrier Crescent Fizell Place Fleurs Street Gamay Place Grazier Place Hermitage Place Hyland Place Ivan Street Jacques Place Kalimna Grove Kington Street Lucan Place McFarlane Drive McKay Place Minchin Drive Molloy Place Nicol Place Parkinson Grove Pinot Place Piper Place Robinson Street Rookin Place Rutherglen Place Sauterne Crescent Shand Place Sherry Place Shiraz Place Tanner Place Tirage Place Traminer Place Walton Place Weaver Place Yves Place ******* Amendments 27 March 2024 - 'Slip-rule' amendment to Environment Protection Authority v Dial-A-Dump (EC) Pty Ltd [2024] NSWLEC 21 Note: On 27 March 2024 annexures B and C to the orders to the above judgment were substituted pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 with the following annexures: Annexure B - Terms of Media Publication Notice [Bingo Industries Limited logo] Dial-A-Dump (EC) Pty Ltd convicted and fined for the emission of rotten egg gas odour from the Bingo Eastern Creek Landfill, impacting community members Dial-A-Dump (EC) Pty Ltd ("DADEC"), a fully owned subsidiary of Bingo Industries Limited, was prosecuted by the NSW Environment Protection Authority ("EPA") for causing the emission of offensive odour from the Bingo Eastern Creek Landfill ("landfill"). Between 26 March and 16 June 2021, a rotten egg gas odour associated with landfill gas was emitted from the landfill. This impacted residents in nearby suburbs including Minchinbury, Eastern Creek, and Horsley Park. The landfill gas contained hydrogen sulfide gas, which has an unpleasant rotten egg odour. In addition to the unreasonable interference with their comfort, affected residents suffered symptoms as a result of exposure to the odour, which varied from person to person, including throat and eye irritation, coughing, breathing difficulties, headache, nausea, insomnia, stress and anxiety. During the offence period, DADEC had not installed a landfill gas extraction and treatment system of sufficient capacity to extract landfill gas and to treat it to remove malodorous compounds. Dial-A-Dump is sincerely remorseful for the impact of the odour on the community. Since the commission of the offence, Dial-A-Dump has spent over $6 million on a range of measures to control and prevent future odour issues, including to install and commence operation of a permanent landfill gas extraction and treatment system in the landfill. On 20 March 2024 the Land and Environment Court of New South Wales convicted DADEC for causing the emission of the offensive odour and ordered that it: 1. pay a total monetary penalty of $280,000, half of which is to be paid to the EPA and half of which is to be paid to Blacktown City Council for the purposes of a specified project for the restoration or enhancement of the environment for the benefit of the community affected by the commission of the offence; 2. pay the EPA's investigation and legal costs; 3. at its own expense, publish this notice in The Sydney Morning Herald, the Blacktown Advocate and Inside Waste magazine, and put a pinned post of this notice on Bingo Industry Ltd's Facebook and LinkedIn pages; and 4. provide notice of the outcome of the proceedings to street addresses in the area affected by the commission of the offence. The Court's judgment may be accessed at [insert URL for judgment on Caselaw NSW]. Annexure C - Notice to Residents [Bingo Industries Limited letterhead] Dear Resident, I am writing to you in respect of the emission of an offensive odour that occurred between late March to mid June 2021 from the Bingo Eastern Creek Landfill at Honeycomb Drive, Eastern Creek ("landfill"), operated by Dial-A-Dump (EC) Pty Ltd ("DADEC"). Between 26 March and 16 June 2021, rotten egg gas odour associated with landfill gas was emitted from the landfill. This impacted residents in nearby suburbs including Minchinbury, Eastern Creek, and Horsley Park. The landfill gas contained hydrogen sulfide gas, which has an unpleasant rotten egg odour. In addition to the unreasonable interference with their comfort, affected residents suffered symptoms as a result of exposure to the odour, which varied from person to person, including throat and eye irritation, coughing, breathing difficulties, headache, nausea, insomnia, stress and anxiety. During the offence period, DADEC had not installed a landfill gas extraction and treatment system of sufficient capacity to extract landfill gas and to treat it to remove malodorous compounds. On behalf of Dial-A-Dump and Bingo, I express my genuine and sincere apologies to the community for the odour and the impact it had on the community. Dial-A-Dump and Bingo take their environmental responsibilities very seriously and, by committing the offence, Dial-A-Dump did not meet the high environmental standards it sets for itself in providing its services. Since the commission of the offence, we have invested over $6 million on a range of measures to control odour, including to install a landfill gas extraction and treatment system to remove odours to prevent a similar offence from being committed in the future. The New South Wales Environment Protection Authority ("EPA") subsequently prosecuted DADEC in relation to the incident. DADEC pleaded guilty to one offence of causing the emission of offensive odour contrary to s 129(1) of the Protection of the Environment Operations Act 1997. On 20 March 2024, the Land and Environment Court of New South Wales convicted DADEC of the offence and ordered it to: 5. pay a total monetary penalty of $280,000, half of which is to be paid to the EPA and half of which is to be paid to Blacktown City Council for the purposes of a specified project for the restoration or enhancement of the environment for the benefit of the community affected by the commission of the offence; 6. pay the EPA's investigation and legal costs; 7. at its own expense, publish this notice in The Sydney Morning Herald, the Blacktown Advocate and Inside Waste magazine, and put a pinned post of this notice on Bingo Industry Ltd's Facebook and LinkedIn pages; and 8. provide notice of the outcome of the proceedings to street addresses in the area affected by the commission of the offence. The Court's judgment may be accessed at [insert URL for judgment on Caselaw NSW]. [Signature block of Managing Director] 02 April 2024 - Annexure 'B' and annexure 'C' of the judgment in Environment Protection Authority v Dial-A-Dump (EC) Pty Ltd [2024] NSWLEC 21 are substituted. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 April 2024