Land and Environment Court of New South Wales CITATION : Environment Protection Authority v Sorcevski [2002] NSWLEC 115 PROSECUTOR Environment Protection Authority PARTIES : DEFENDANT Tony Sorcevski FILE NUMBER(S) : 50082; 50083 of 2001 CORAM: Talbot J KEY ISSUES: Prosecution :- using land as a waste facility - penalty Environmental Offences and Penalties Act 1989 s 14 LEGISLATION CITED: Protection of the Environment Operations Act 1979 s 144(1), s 241, s 241(1)(a), s 241(1)(b), s 241(1)(c), s 245 Waste Minimisation and Management Act 1995 s 64(1) Port Stephens Local Environmental Plan 1987 cl 25 CASES CITED: DATES OF HEARING: 28/05/2002 EX TEMPORE JUDGMENT DATE : 05/28/2002 PROSECUTOR Mr D Jordan (Barrister) SOLICITORS Environment Protection Authority LEGAL REPRESENTATIVES: DEFENDANT In Person SOLICITORS N/A JUDGMENT: IN THE LAND AND Matter No. 50082 – 3 of 2001 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 28 May 2002 Environment Protection Authority Prosecutor v Tony Sorcevski Defendant REASONS FOR JUDGMENT 1. HIS HONOUR: The defendant has pleaded guilty to two charges. Firstly, as the owner of land that cannot be lawfully used as a waste facility, he admitted that between 20 April 1999 and 30 June 1999 he allowed it to be used as a waste facility in breach of s 64(1) of the Waste Minimisation and Management Act (1995) ("the Waste Minimisation Act"). Pursuant to s 64(1) of the Waste Minimisation and Management Act, an owner who permits land to be used as a waste facility without lawful authority is guilty of an offence under the Environmental Offences and Penalties Act 1989 ("the EOP Act"). The second offence involves a breach s 144 (1) of the Protection of the Environment Operations Act 1979 ("the PEO Act") , arising from the receipt of waste after 1 July and up to 8 July 1999. 2. Up to 30 June 1999 when the Waste Minimisation Act was repealed, the defendant operated a land fill site located in or within 40 metres from a permanent or intermittent water body without a licence under the Waste Minimisation Act, or development consent under the EOP Act 3. After 30 June 1999 s 144 of the PEO Act came into force and provided that an owner who permits land to be used as a waste facility where it cannot be so used is guilty of an offence. Of the total 7,167 tonnes deposited on the defendant's land during the period up to 8 July 1999, the Court has been told that 14.3 per cent was deposited after 30 June. 4. The maximum penalty prescribed under the EOP Act up to 30 June 1999 was $60,000 whereas under the PEO Act the maximum penalty is now $120,000. 5. The defendant has agreed to the terms of proposed orders which are to be made pursuant to s 14 of the EOP Act ( which remains in force notwithstanding the repeal of that Act) and s 245 of the PEO Act whereby the site will be rehabilitated to a state satisfactory to the prosecutor within eight months. 6. The defendant is the owner of the subject land. It comprises about 6.88 hectares. The area adjacent to the deposited waste is a wetland area. No relevant licence or development consent or other lawful authority to deposit waste on the land is held by the owner or for that matter any other person. There are two relevant water bodies both situated within 40 metres of the dump area. One is a permanent water body known as the Fourteen Foot Drain, while the other consists of a series of surface drains across the site. 7. During 1999 the premises were zoned Rural Flood Plain under the Port Stephens Local Environmental Plan 1987 ("the LEP"). In that period activities that were permitted without consent were agriculture and flood mitigation works authorised by the Hunter Valley Flood Mitigation Act. Clause 25 of the LEP provides that a person shall not carry out development for any purpose on flood prone land or on land within a flood way except with the consent of the council. The whole of the premises is flood prone land under the definition in the LEP. 8. The defendant has obtained two development consents. Firstly, he obtained consent for a farm storage building in 1987. That consent included authorisation for the filling of a driveway access. In 1992 he obtained building consent and a second development consent for a dwelling house. The latter consent also authorised the receipt of fill, but only, for the purpose of creating foundations for the dwelling house. The fill the subject of the charges has been deposited in a distinct area of the site, at the eastern end. The defendant has explained that as the land is flood prone he intended to build a mound or platform as a cattle refuge in time of flood. The proposed s 14 orders will enable him to achieve this objective. 9. In or around April 1999 the defendant came to an agreement with his cousin, John Nechakoski. Mr Nechakoski has been engaged in the business of demolition and earth moving for the past 25 years. Mr Sorcevski told Mr Nechakoski that he had development consent from Port Stephens Council ('the council") that allowed him to fill the land. Mr Nechakoski agreed to provide the defendant with fill material comprising bricks, concrete and dirt. He was also to provide a bulldozer and operator to remove the transported material around in order to form the raised pad. In April 1999 Mr Nechakoski contracted for the demolition and removal of waste from St Joseph's nursing home at Sandgate near Newcastle. At about that time he was also involved in other demolition work at the Phoenix Club in Mayfield. The mound of waste is approximately 80 metres by 80 metres in rectangular dimension and around 1.5 metres in height. The deposit of the subject waste increased the height of the mound by at least 60 centimetres. The defendant was often on hand to give directions to drivers. At other times he was not. Water samples have not detected any significant contamination. The soil samples taken by the Environment Protection Authority ("the EPA") contain concentrations of polycyclic aromatic hydrocarbons ("PAH's") which are chemicals formed during the incomplete burning of coal, oil, and gas, garbage and other organic substances. It is consistent with residues from a coal-fired steam boiler used at St Josephs nursing home. The presence of DDT was consistent with pest control activities at the same site. Levels of contamination of the soil and other material in the mound would not render it toxic to humans or unsuitable for use in accordance with the New South Wales Site Auditors Scheme. 10. Part of the wetland has been destroyed together with the habitat of animals expected to live in that environment, principally frogs. A number of trees have been squashed or smothered. A regionally specific species of buttercup has been observed in the vicinity of the fill. An expert assessed the regional significance. It is not classified as a consequence of any statutory provision in respect of that particular species. 11. In summary, the statement of facts, agreed by both parties, states that the deposit of the waste had a significant detrimental effect on that part of the premises in which it was deposited by raising and drying the land, squashing and smothering vegetation, contaminating the soil and thereby reducing its suitability for frogs and other wetland species. The statement discloses that on a number of occasions the council has informed the defendant that the fill being received on the premises was not permitted by the development consents. 12. The defendant entered a plea of guilty on 8 May 2002. This was, in a sense, at a late stage of the proceedings. He had entered a plea of not guilty on an earlier occasion. He has no prior convictions for environmental offences. The Court is required to assess the seriousness of each offence in its own context. In this case 85.7 per cent or 6,145 tonnes was deposited during a period when the maximum penalty provided by the legislation was $60,000. On the other hand, 14.3 per cent of the material or 1,022 tons was deposited when the maximum penalty had become $120,000. Thus, having regard to the overall criminality, it is imperative that the Court achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. 13. The defendant was made aware some years ago by the council that he was not permitted to fill in any area beyond those areas covered by the two development consents. He has explained his misunderstanding in relation to the fill and alteration of the land form on the basis that he was led to believe that he could carry out that work without consent if it was in connection with agricultural purposes. 14. The Court must be careful to ensure that the public is assured and made aware that these offences are to be taken seriously. The prosecutor has not raised the prospect of the likelihood of re-occurrence by this defendant. Indeed the defendant has co-operated in all respects with the investigation and agreed on remedial action. The defendant is entitled to the maximum discount for his plea of guilty and the utilitarian value of his co-operation not only in respect of the investigation but also in the conduct of the proceedings. In this latter respect the hearing time has been significantly shortened by the defendant's agreement to a Statement of Agreed Facts. 15. Although the guilty plea was entered late in one sense, nevertheless the defendant entered it once he was in a position to properly assess his position. The original plea of not guilty was, so he says, entered into on legal advice which he subsequently appreciated was not well founded. 16. The Court is required to take into account the matters referred to in s 241 of the PEO Act. Relevantly, s 241(1)(a) refers to the extent of harm caused or likely to be caused to the environment by the commission of the offence. I have referred to the extent of the actual harm being the loss of vegetation and the removal of some potential habitat. The likely harm beyond that is in the event of rainfall or other events which could have transported some of the contaminants. Further harm could have occurred in relation to the two waterways. 17. Insofar as s 241(1)(b) and (c) are concerned, there is no dispute that the defendant invited the deposit of the material generally in accordance with his instructions. There can be no doubt that he had the necessary control to prevent it happening altogether. The Court is satisfied that the defendant could reasonably have foreseen that the introduction of material in the way that it was and in the position that it was placed, could or was likely to cause harm to the environment. Indeed, in his own statement he recognises that fact by indicating that he gave warnings to the operators of the trucks delivering the waste, from time to time, that he was concerned that the water sources on the land be adequately protected. 18. The prosecutor recognises that the tasks to be undertaken pursuant to the s 14 orders are significant and that work will be required by the defendant in order to satisfy the requirements of those orders. 19. The defendant has explained that he has a limited capacity to express himself in the English language not because he lacks the intelligence to do so but rather that he has not had the education in that language. His background is one where there has been limited opportunity for him to gain an education in that respect since he came to Australia. However, he has caused to be prepared and presented to the Court a comprehensive statement of explanation which contains what I believe to be sincere expressions of contrition on his part. More particularly, he trusted his cousin, Mr Nechakoski, (knowing that no money would change hands and he being family) not to bring any illegal or dangerous waste onto the land. That caution was recognised, as the prosecutor readily concedes, because no toxic materials are involved nor are there any putrescible or other types of waste beyond the contaminants which I identified earlier. He says he stressed that his cousin was not to use contaminated fill. The defendant relied on the bore water for his drinking and bathing and did not want to jeopardise the health of his family, friends, himself or his animals. On occasions when he was present he would check and often reject any fill with large concrete blocks or steel and other unsuitable debris ordering the drivers off the property. He did not always agree with the amount of fill that Mr Nechakoski brought onto the site but he was not always there to control what actually occurred. 20. I think it is worth recording his expression of contrition and concern about the impact of the commission of this offence from his own statement where he says as follows:- I have always tried my best to be a conscientious member of society having done whatever I could to help those around me and obey the laws of Australia. I worked hard all my life arriving from Macedonia as a teenager having to forego education in this country due to circumstances forcing me straight into employment. Unable to gain further education I have struggled in order to obtain and through financial difficulty keep the one place that I truly love. I believe that my limited literacy and comprehension of the English language may have attributed to my understanding of the choices I have made. I consider this land to be a legacy that will be passed down through generations of my family. Never would I have ever willingly done anything to put my family, myself or property at risk. 21. If it does nothing else that statement encapsulates the extent to which this defendant is concerned and contrite about what has occurred. The Court accepts that, as opposed to Mr Nechakoski, the defendant was not likely to gain any financial profit from the dumping of the waste on his land other than having the facility of the improvements to the property by the provision of the mound at relatively no cost to him. It is not disputed that the defendant has limited means. 22. The EPA has very fairly stated to the Court that it is as much interested in rectification of the environmental situation that presently inures on the property as much as it is interested in the recovery of a penalty. 23. The defendant has no prior convictions for environmental offences. He has clearly shown contrition. 24. Having regard to all of the circumstances, by taking into account the total criminality and the fact that each offence is to be regarded in its own right under the legislation that prevailed at the relevant period, the apparent means of the defendant and that ultimately the property will be placed in a condition which is satisfactory to the prosecutor in environmental terms at the expense of the defendant, it is appropriate in respect of the first charge there be a penalty in the sum of $6,000. In respect of the charge under the PEO Act there should be a penalty of $2,500. 25. There has been no mention of costs. 26. PROSECUTOR: Your Honour there is costs sought in the summons and there is an application for costs pursuant to s 52. But there is no agreement as to costs. 27. BENCH: No agreement as to costs. Mr Sorcevski there is the question of the prosecutor's costs in circumstance where you are convicted and in circumstances where you have pleaded guilty. Although the Court has an overall discretion in relation to costs nevertheless the Court would, unless there were exceptional circumstances, order that you pay the prosecutor's costs. Have you got submission to put to me in that regard? 28. DEFENDANT: What can I say your Honour. 29. HIS HONOUR: Not much. In a way it is part of what goes with the territory. In assessing the penalty I have taken into account the expectation that you will have a significant burden in relation to costs. If you have got nothing to put to me then I will order that you pay the prosecutor's costs. I will also make the orders for rehabilitation. I am inclined to encompass the orders pursuant to s 245 and s 14 respectively into the one document, reciting that they are made pursuant to those two sections. I see no legal difficulty with that Mr Jordan. Subject to anything further you have got to say I intend to do it. 30. PROSECUTOR: No your Honour and it is probably convenient to - simply from the order-- 31. HIS HONOUR: I will just insert it. 32. PROSECUTOR: After the s 245 under the Protection-- 33. BENCH: Insert "and s 14". 34. The formal orders of the Court are: (1) In matter No. 50082/01 the defendant is convicted. (2) In matter No. 50082/01 the defendant is ordered to pay a fine in the sum of $6,000. (3) In matter No. 50083/01 the defendant is convicted. (4) In matter No. 50083/01 the defendant is ordered to pay a fine in the sum of $2,500. (5) In matter No. 50082 and matter No. 50083 the defendant is ordered to pay the prosecutor's costs. (6) In matter No. 50082 and in matter No. 50083 the Court makes orders respectively pursuant to s 14 of the EOP Act and s 245 of the PEO Act to do each of those matters which are set out in the draft minutes of orders, filed, initialled by me and placed with the papers. (7) Exhibits 1 and A are retained, otherwise the exhibits are returned. 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.