Land and Environment Court of New South Wales CITATION : Environment Protection Authority v Dubbo City Council [2000] NSWLEC 78 PROSECUTOR Environment Protection Authority PARTIES : DEFENDANT Dubbo City Council FILE NUMBER(S) : 50067 of 1999 CORAM: Pearlman J KEY ISSUES: Environmental Offences :- water pollution - plea of guilty - penalty - mitigation LEGISLATION CITED: Clean Waters Act 1970 s 16(1) Protection of the Environment Operations Act 1997 s 241 CASES CITED: Environment Protection Authority v Australand Holdings Limited [2000] NSWLEC 15 unreported; Environment Protection Authority v Dubbo City Council (1994) 82 LGERA 361 DATES OF HEARING: 28/02/00 EX TEMPORE 02/28/2000 JUDGMENT DATE : PROSECUTOR Mr P T Barley (Solicitor) SOLICITORS Environment Protection Authority LEGAL REPRESENTATIVES: DEFENDANT Mr D F Olney (Solicitor) SOLICITORS Booth Brown Samuels & Olney JUDGMENT: IN THE LAND AND 50067 of 1999 ENVIRONMENT COURT Pearlman J OF NEW SOUTH WALES 28 February 2000 ENVIRONMENT PROTECTION AUTHORITY Prosecutor v DUBBO CITY COUNCIL Defendant JUDGMENT [ NOTE: This record of reasons for judgment has been prepared from the transcript of the judgment given ex tempore on 28 February 2000. The Court Reporting Services Branch has advised that a malfunction occurred in the audiotape and part of the judgment was not recorded. It is not possible to reconstruct the reasons for judgment in the absence of transcript, and accordingly, a gap appears in par 10.] 1. This is a prosecution brought by the Environment Protection Authority against Dubbo City Council in which the defendant is charged with an offence against the Environmental Offences and Penalties Act 1989 in that on or about 29 September 1998 at Dubbo it polluted waters contrary to s 16(1) of the Clean Waters Act 1970. The particulars of the summons describe the matter as wastes containing nonfiltrable residues, phosphorus, ammonia and nitrogen and causing biochemical oxygen demand (BOD) and chemical oxygen demand (COD). 2. The defendant owns and operates the Dubbo Regional Livestock Markets. It is a substantial saleyard with an annual throughput, as the statement of agreed facts records, of 1.3 million sheep and 180,000 cattle. 3. What occurred on the day that the offence was committed was that a timer switch on a travelling irrigator failed to operate and as a consequence the irrigator continued to pump effluent into a paddock. The irrigator operated for approximately 4.5 hours longer than was scheduled, and it pumps out at the rate of 18 litres per second. The effluent ran into a stormwater drain that in turn runs through paddocks and into a stormwater run off collection pond, which I shall refer to as the "pond". 4. A pollution control licence held by the defendant in relation to the saleyards contains a condition that the pond be empty at all times other than in periods of heavy rain. The effluent went into the pond. It caused the pond to overflow, and effluent ran from the pond into a railway table drain where it met a discharge from a neighbouring property owned by Fletcher International Exports. The two discharges mingled and flowed in a drain alongside Old Gilgandra Road into the Talbragar and Macquarie River system. 5. In addition, the stream of effluent was fed by some effluent from manure stockpiles in a bunded solid waste storage area at the saleyards. There was a breach in the bund wall of that storage area, and that provided a source of effluent which also ran into the stormwater drain. 6. The discharge of effluent was cleaned up by the council. Two dams were constructed alongside Old Gilgandra Road, and, as they filled, the contents were pumped into a nearby paddock. 7. There is no evidence of precisely how much effluent flowed from the Dubbo saleyards into the river system. In the agreed statement of facts there is a note of an estimate of between 18,000 and 45,000 litres of effluent pumped in a 2.5 hour period from the dam that was established by the council as part of its clean up operations. 8. The defendant has pleaded guilty to the offence and it remains only for the Court to determine the question of penalty and costs. I am required under s 241 of the Protection of the Environment Act 1997 to take into account a number of matters. The reason that that Act applies, although this offence was committed prior to it coming into force, is set out at length on page 6 of my judgment in Environment Protection Authority v Australand Holdings Limited [2000] NSWLEC 15, unreported, and it is unnecessary for me to traverse that legislative background. 9. The first matter that I am required to take into account is the extent of the harm caused or likely to be caused to the environment by the commission of the offence. In this case there is no dispute that there was no actual or lasting harm. The critical question is the extent of the potential harm to the river environment. That was the subject of some considerable amount of evidence. In an affidavit sworn on 26 August 1999 Mr M J Currey concluded that high concentrations of ammonia, BOD, phosphorus, nitrogen and suspended solids in all the samples of effluent were likely to have an environmental effect on the water quality and possibly the aquatic flora and fauna in the receiving waterway. Mr Currey said that the seriousness of this environmental effect would be proportional to the quantity and duration of the discharge. 10. In response to that evidence, the council obtained and tendered a report by Terra Consulting NSW Pty Limited written by Mr Martin Haege. In his report Mr Haege examined the samples taken by the EPA as a consequence of the incident, as well as the evidence of Mr Currey and in particular the application made by Mr Currey of the ANZECC Guidelines [.. (fault in recording equipment tape A1 ends) (tape B1 begins) ..]. The discharge from the saleyards was about 324,000 litres, although as I have said, there is no evidence that that was the actual amount. But if that was a possible estimate and the pond was capable of some megalitres, then I draw the conclusion that it certainly was not empty when this incident occurred since it overflowed. 11. Secondly, the solid waste storage area was not bunded sufficiently, and that caused at least some additional effluent to escape from the saleyards. 12. Thirdly, there is no question that the timer could have been checked on a regular basis. I take into account however that the principal cause of the polluting circumstance was the failure of the timer, and there is no evidence that any practical measures could have been taken to prevent that failure. 13. I am next required to take into account 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. As I have said, the principal cause of the pollution was the failure of the timer on the travelling irrigator, a circumstance which I accept was not foreseeable. But the defendant knew that the operation of the saleyards involved a potential risk of environmental harm. And it was in control of all the factors which gave rise to the potential for the harm which ensued, that is, the failure of the timer, the failure to keep the pond at a low level, and the failure to maintain the bunding around the storage area. I conclude then that the defendant could reasonably have foreseen the harm which ensued. 14. I am required to take into account the extent to which the person who committed the offence had control over the causes that gave rise to the offence. There is no issue here that the defendant had control of all the mechanisms that I have outlined, and that it had the sole responsibility for the operation of the saleyards. However, in this connection I take into account, as submitted by Mr Olney on behalf of the defendant, that it has been co-operating and working with the EPA for some years in respect to the proper disposal of waste from the saleyards. Furthermore, there was an environmental audit in 1996 and investigations took place to find a suitable method of compliance with EPA requirements. The conclusion I come to is that the defendant has not ignored the potential risk from the saleyards and has taken an active approach as I would expect it to take since it is a local authority which has a duty itself to protect the environment. 15. I take into account the following matters in mitigation of penalty. First, the defendant has pleaded guilty to the charge. The formal plea of guilty was entered at the commencement of this hearing, but at the earliest possible time the defendant indicated to the Court that a plea of guilty was intended and hence I take that into account. 16. Secondly, I take into account the cooperation between the defendant and the prosecutor. The prosecutor has acknowledged that the defendant has been cooperative both in the investigation and in these proceedings. 17. Thirdly, I take into account the fact that I have already mentioned, namely, that the defendant has been working with the EPA in order to attempt to comply with relevant requirements. In particular it has now introduced a program of environmental monitoring which should go a great deal of the way to preventing an occurrence of this kind again. A report from the Director of Corporate Development of the defendant was tendered which showed that there is to be a policy of monitoring, in particular a monitoring of the irrigation system on an hourly basis. Guidelines have been put in place, according to this report, for the control of the activities relating to solid waste management, liquid waste management and irrigation management, which should ensure that there is no re-occurrence. 18. The defendant has a prior conviction. It was fined $5,000 in respect of a breach of the same section as this offence, s 16(1) of the Clean Waters Act. That incident, was described in the judgement of Justice Talbot in Environment Protection Authority v Dubbo City Council (1994) 82 LGERA 361. The situation which there led to the pollution of waters was quite different to the situation here and it rose, at least partly, from the freak nature of the storm event over which the council had no direct control. 19. I am required to adopt a principle of even handedness, and in that connection the prosecutor has asked me to take into account that Fletcher International Exports has been charged in respect of the discharge of effluent which occurred on the same occasion as the discharge the subject of this prosecution, and that it has been fined the sum of $12,000 ( Environment Protection Authority v Fletcher International Exports Pty Ltd [2000] NSWLEC 41, unreported and unpublished at the date of this judgment). I take that judgment into account as being a penalty imposed for an incident which contributed to the total amount of effluent that went into the river system at the date of this occurrence, but I do not know the detail of how that discharge occurred, and I am not prepared to draw inferences about the respective levels of culpability between the two defendants. 20. Finally, I take into account that the defendant has agreed to pay the costs of the prosecutor in the amount of $5,500. 21. Taking all those matters into account, I consider that an appropriate penalty in this case is an amount of $15,000. I make the following orders. (1) The defendant is convicted of the offence with which it is charged. (2) The defendant is fined the sum of $15,000 to be paid to the Registrar of the Court within one month of today's date. (3) The defendant must pay the costs of the prosecutor in the amount of $5,500. (4) The exhibits may be returned. 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