Clarence Valley Council v Lanai Pty Ltd [2006] NSWLC 40

Local Court of New South Wales

CITATION: Clarence Valley Council v Lanai Pty Ltd [2006] NSWLC 40 JURISDICTION: Criminal Clarence Valley Council PARTIES: Mr R Wright (Prosecutor) Lanai Pty Ltd FILE NUMBER: PLACE OF HEARING: Maclean Local Court DATE OF DECISION: 01/23/2006 MAGISTRATE: Magistrate C Bone CATCHWORDS: Polluted waters - Envionment - Soil sediment LEGISLATION CITED: Protection of the Environment Operations Act 1997 Environment Protection Authority v Brazel (2002) NSWLEC 7 CASES CITED: Environment Protection Authority v Cianfrano (unreported McLellan CJ, NSW Land & Environment Court, 26/11/2006 Environment Protection Authority v Metziyal Pty Ltd (2003) NSWLEC 196 Majury v Sunbeam Corporation Ltd (1974) NSWLR 659 REPRESENTATION: Mr S Priestley - Solicitor Mr A Gallagher - Solicitor ORDERS: The offence is proved.

Reasons for Decision

1 It is alleged by Rodney Wright, an officer of Clarence Valley Council, that Lanai Pty. Ltd. committed an offence against s.120(1) of the Protection of the Environment Operations Act, 1997, in that it polluted waters at Gulmarrad on 24th January, 2005. The accused company pleaded not guilty and all of the evidence has been taken

Background 2 Lanai Pty. Ltd. was, at 24th January, 2005, the owner of land at Gulmarrad, which is near Maclean. The company had purchased the land in 2004 with a view to development. At the time of purchase the land had a deal of timber on it. In the latter part of 2004 the company commenced a clearing operation. About thirty hectares, representing approximately 85% of the land, was cleared of vegetation and the soil was then prepared for the development programme. The process by which the soil was prepared involved dragging across the land a bar with ripping devices attached to it. The ripping devices, set at a depth of 600mm., break up the subsoil and increase infiltration, thus preparing the soil for the next stage of the process which involves light cultivation to form a seed bed followed by light rolling. A laser grader was used to ensure an even run-off rate in the event of rain. 3 The western and northern boundaries of the land were bordered by Sheehan's Lane. This rural thoroughfare had a ninety degree turn at the north-west boundary of the property. Apart from a small length of sealed surface adjacent to the ninety degree turn, Sheehan's Lane is a gravel road. A gutter runs along the side of Sheehan's Lane and there is a drain or culvert which goes under the road - that drain or culvert is near to the ninety degree turn. 4 The land which had been cleared sloped down towards the north-west boundary. In order to minimise the amount of water which ran from the land (and then into the gutter and drain/culvert) the company built a bund wall. A bund wall is a type of earthen mound or wall. The bund wall built by the company was roughly semi-circular and was in the area of the north-west boundary. Running away from each end of the bund wall was a silt fence. A silt fence is constructed of fine mesh. The bund wall and the silt fence were on the company's property and were generally about fifty to sixty metres from the boundary. The area between the constructions and the boundary was undisturbed, with a coverage of native grasses. The idea was that, in the event of heavy rain, most of the water which ran off from the cleared ground would be caught by the bund wall and any sediment would fall to the bottom. The fine mesh of the silt fencing would allow water to pass through but would catch any sediment. The constructions were set well back from the boundary so that any water which did get through the barriers would be likely to be trapped or, at the least, slowed, by the flat area of undisturbed grass between the constructions and Sheehan's Lane. 5 On 24th January, 2005, heavy rain fell in the Gulmarrad area. 6 It is the prosecution's contention that a significant amount of water ran from the company's land and that the water contained an unacceptable amount of sediment.