Environment Protection Authority v Brown [2001] NSWLEC 148

Land and Environment Court of New South Wales

CITATION : Environment Protection Authority v Brown [2001] NSWLEC 148 APPLICANT: Environment Protection Authority PARTIES : RESPONDENT: Edmund Bruce Brown FILE NUMBER(S) : 50003; 50004; 50005 of 1999 CORAM: Talbot J KEY ISSUES: Environmental Offences :- plea of guilty - s 63 - Waste Minimisation and Management Act - totality principle extended to offences in Queensland. Environmental Offences and Penalties Act 1989 s 14(2)(a) LEGISLATION CITED: Waste Minimisation and Management Act 1995 s 63 Land and Environment Court Act 1979 s 52(1), s 52(2) Environmental Protection Act 1994 (Qld) s 112(1), s 112(2) CASES CITED: Camerilli's Stock Feeds Pty Ltd v Environment Protection Authority 32 NSWLR 683; R v Robert William Larsen [1989] 44 ACrimR 121 DATES OF HEARING: 10/08/99 EX TEMPORE JUDGMENT DATE : 08/10/1999

APPLICANT: Mr D A Buchanan SC SOLICITORS: Environment Protection Authority LEGAL REPRESENTATIVES: RESPONDENT: Mr A J Kimmins (Barrister) SOLICITORS: Price & Roobottom

JUDGMENT: IN THE LAND AND Matter No. 50003-5 of 1999 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 10 August 1999

Environment Protection Authority Applicant v Edmund Bruce Brown Respondent

REASONS FOR JUDGMENT 1. The defendant is charged that between about 20 February 1996 and 1 March 1996 at or near Bulahdelah, he committed an offence against the Environmental Offences and Penalties Act 1989 ("the EOP Act") in that he, without lawful authority, disposed of waste on land contrary to s 63 of the Waste Minimisation and Management Act 1995 ("the Waste Minimisation Act"). 2. He is also charged with an offence which is alleged to have occurred on 7 March 1996 and a further offence on or about 18 March 1996. 3. An additional matter before the Court is a notice of motion pursuant to s 14(2)(a) of the EOP Act seeking an order that the defendant pay to Great Lakes Council ("the council") costs and expenses incurred in connection with the prevention, abatement and mitigation of harm to the environment caused by the commission of the offences in the total sum of $22,300. 4. The defendant has entered a plea of guilty in each case. 5. Furthermore, no submission has been put to the Court that could substantiate a finding that the prosecutor was not entitled to the order, pursuant to s 14(2)(a) of the EOP Act, in respect of the amount claimed by the council. In that respect there is evidence from the prosecutor's witnesses to the effect that the sum of $22,300 was in fact the cost incurred by the council, who is the owner of the subject land. The number of drums removed during the course of the operation by the council's contractors was 265, together with nine pallecons. Having regard to the whole of the operation and in the light of a concession made by the defendant in that respect, it is reasonable to accept the claim made by the prosecutor. 6. The Court finds that on 17 February 1996 the defendant made arrangements with a person by the name of Bruce Richards, whereby the defendant rented the front part of a property for the purpose of storing a number of drums on pallets until they could be transferred to Brisbane. Mr Richards lives on a parcel of land adjacent to the Pacific Highway, just north of the town of Bulahdelah. 7. According to Richard Wales, an employee of the defendant, in late February or early March 1996 approximately 30 pallets containing four drums each and six large square drums were loaded onto semi-trailers at the premises of the firm Alkem Drums in a Sydney suburb under the direction of, and by arrangement with, the defendant. Mr Wales estimates a further 10 pallets were loaded onto one of the semi-trailers at the premises of the firm P & R Containers. The Court is satisfied that both truckloads were transported to the land of Mr Richards at Bulahdelah. They were unloaded and the drums were stacked on the land that same day. 8. According to records of payment made by the proprietor of Alkem Drums the number of drums taken from the premises was more like 40. The amount paid by P & R Containers reflects a total of approximately 34 drums, although the proprietor of the firm actually refers to approximately 28 drums in his evidence. Nevertheless, the evidence establishes that two semi-trailer loads of drums were transported to the land at Bulahdelah for and on behalf of the defendant. 9. On 7 March 1996 Mr Wales says he stacked 20 pallets, containing four 200 litre drums, onto a semi-trailer in Sydney. They were subsequently unloaded onto the land at Bulahdelah. These drums were also from the premises of Alkem Drums. According to the records kept by the proprietor of Alkem Drums the number of drums moved on this occasion was just over 100. After the drums had been added to the stockpile on the land the defendant and Mr Wales wrapped them in plastic. 10. According to Mr Wales, a further load of approximately 80 drums was loaded at Alkem Drums on 18 March 1996. The payment made by Alkem Drums indicates that there were approximately 80 drums in the load. The drums, however many, ultimately were unloaded and stacked on the land at Bulahdelah. 11. In June 1996 the defendant and Mr Wales visited the property at Bulahdelah. They observed that the drums previously stored there had been moved outside the property boundary fence. It is clear from the conversation that took place at that time that the movement of the drums caused the defendant some consternation. He and Mr Wales continued on to Sydney. A further load of drums, comprising about 20 pallets, was then transported to premises used by the defendant on the Gold Coast in Queensland. 12. The presence of the drums on the land at Bulahdelah was reported by a police officer to the Environment Planning Authority ("the EPA") on 12 June 1996. The drums were inspected and found to be in poor condition. Samples were collected for chemical analysis. It was observed, and it is clear from photographs in the evidence, that some of the contents had spilled onto the soil. 13. A clean-up operation was conducted. That operation was conducted at the cost of the council. The number of drums counted by an EPA officer in June was 265 of the larger variety and nine pallecons. The Court has been told the latter is a smaller square variety of drum. The Court accepts that was indeed the number of drums left on the land by the defendant. 14. Although the defendant agreed to pay rent for the use of the land at Bulahdelah, Mr Richards says he did not receive any money. Mr Wales states that an envelope was placed under the sunvisor of an old truck on the property at Bulahdelah. The placing of the envelope may have been referable to arrangements for payment of rent. 15. Given the fabric of deceit and dishonesty inherent in the defendant's behaviour and the arrangements made with the suppliers, the prosecutor's case is that the drums were disposed of within the meaning of s 63(1) and s 63(5)(a) of the Waste Minimisation Act. The prosecutor relies on a number of aspects of the evidence which disclose that the defendant dealt with the suppliers of the drums in a course of deception. Firstly, a mis-representation in relation to the identity of the business enterprise which removed the drums, and secondly, as to the manner of their disposal. 16. It is not necessary for me to elaborate on the particular evidence and facts relating to the establishment of the course of deceitful conduct. However, I make the finding that the documentary evidence discloses that the defendant did take a number of steps which were, on their face, designed to deceive the people he was dealing with. They include his intentions in relation to disposal of the drums and his real identity. 17. Mr Kimmins refers to the defendant's open disclosure to Mr Richards that his name was Eddy Brown. It should be noted, however, that the conversation took place prior to any arrangements being made in regard to the use of the land for the purpose the subject of these proceedings. 18. Mr Kimmins submits that the mis-representations made by the defendant were no more than normal representations made in the course of commercial negotiations where a person or a firm might be soliciting business. Having regard to the particular nature of the business involved in this case the submission is rejected. 19. The prosecutor submits that the defendant would have been well aware of the nature of the materials that would be reasonably expected to be contained in the drums. This is self evident from the nature of the type of business with whom the transactions were made. It can also be inferred from the defendant taking some trouble to conceal his true identity and further, making representations about the manner of disposal of the drums. The Court is satisfied he was under no misapprehension about the nature of the contents. 20. There is direct evidence that the drums were not in a satisfactory condition even before they were transported to Bulahdelah. On one occasion, leaking was detected to the extent that one of the truck drivers refused to carry out the delivery until something was done to rectify it. 21. The potential for environmental harm is clearly established by the evidence of two experts who undertook testing of the contents of drums in a random sampling exercise. The types of chemicals identified included toluene, zeoline, phenol and creosote. All of these have potential to cause significant harm, either by constituting a dangerous fire risk or creating serious problems if they are placed on skin or if odours are inhaled. 22. The evidence in regard to the prospect of environmental harm is not disputed, except to the extent that Mr Kimmins relies on evidence of a process of selecting the drums so that they generally contained materials which had been solidified. That is not confirmed by the testing. In any event, the evidence relied upon is that of Mr Kemp, the proprietor of Alkem Drums. His evidence is that he left the selection of the drums to the defendant and those working for him, notwithstanding directions he said he gave stipulating the category of drums that could be removed. 23. The potential for environmental harm involves a very strong suggestion that, in the event of a fire in the area, the odours, vapours and expected extent of fumes to be given off and the chemical nature of those fumes may have caused the evacuation of the town of Bulahdelah. 24. In respect to the submission made by the prosecutor in relation to the environmental harm, Mr Kimmins points out that the land was not pristine rural land. The site was formerly used for the purposes of a sawmill, and accordingly should not be regarded as pristine rural land. That may be the case, nevertheless, the overall concern is for the environment generally, not specifically the land itself. It is noted that the land is immediately adjacent to the Pacific Highway and is within close proximity to the outskirts of the town of Bulahdelah. 25. Furthermore, Mr Kimmins says that as there was no testing of the soil in the area where the drums had been stored, there is no evidence to suggest that there was an escape of any contaminants, more particularly, toxic substances. 26. Section 9 of the EOP Act not only imposes a duty upon the Court to consider the extent of harm caused to the environment, but the Court is obliged by that section to have regard to the extent of harm likely to be caused. 27. Whilst dealing with s 9 of the EOP Act it is also pertinent to note that the defendant apparently did not take any steps to prevent control or mitigate any potential for harm, other than the cursory action of wrapping the drums in plastic. There is no reason to doubt that the defendant was well aware of the potential for harm that could arise if the substances contained in the drums were released or otherwise escaped. There can be no doubt that Mr Brown had complete control over the actions which gave rise to the offence. 28. I dismiss any suggestion that the damage to the drums might have been caused when Mr Richards subsequently moved them off the property to some land immediately outside the boundary. 29. I find that the defendant was well aware, even if he was not aware to what extent, that the drums contained materials which had the potential to cause serious harm to the environment. 30. Mr Richards was told by the defendant that the drums would be stored on the property only until they could be transferred to Brisbane. There is no evidence to support this contention except the visit to the site in June 1996. In addition, there is evidence that a load which was picked up in Sydney at that time, namely June 1996, was sent to Brisbane. Furthermore, I recognise that in the context of establishing whether there had been permanent abandonment, the period between March and June of 1996 is relatively short. 31. It is necessary for the Court to draw an inference that the defendant intended to dispose of waste in the drums within the meaning of s 63(5) of the Waste Minimisation Act. In that regard it is significant that the defendant elected not to rely on any evidence of his ultimate intentions. Whether the defendant abandoned the drums or simply deposited them does not make a great deal of difference. It does, however, go to the aggravated nature of the offence. The Court is prepared to deal with the question of penalty on the basis that the drums were deposited on the land without any due regard to their protection and with the purpose of leaving them there for an indeterminate period. 32. There has been considerable debate about the antecedents of the defendant. In particular in relation to his conviction on two occasions in Queensland pursuant to s 112(1) and s 112(2) of the Environmental Protection Act 1994 (Qld). It is apparent that the potential for penalty for those offences is more severe than those applicable in New South Wales. 33. It is also clear from records in respect of those convictions that those offences involve the storage of 576 drums. As Mr Kimmins rightly points out, that is double the number of drums involved in the present case. 34. It is submitted by the defendant, and not seriously disputed by the prosecutor, that in assessing the penalty to be imposed in the present case the five offences, that is two in Queensland and three in New South Wales ("NSW"), should be treated as part of the same series of transactions which took place between February and June of 1996. There is no evidence that the defendant has been involved in the placing of drums containing toxic wastes since June 1996. The defendant entered a plea of guilty to the offences in Queensland. He was fined $10,000 and ordered to pay reparation cost of $80,000 in one case. He was fined $20,000 and ordered to pay costs in the sum of $2,000 in the other case. At the very least he has incurred a penalty in Queensland of a total of $30,000 whereas the overall financial burden is $112,000. 35. Mr Kimmins also draws the Court's attention to, what he says is, the unusual or even inordinate delay by the prosecutor in bringing proceedings in NSW. They were not brought to the defendant's attention until he was served with the relevant summons and order on 19 February 1999. There are circumstances when the delay in bringing proceedings can be taken into account. I am not persuaded, however, that delay in this case raises any relevant issue in regard to the assessment of penalty. 36. Mr Kimmins also refers to the prospect that these proceedings could have been commenced in the Local Court. He submits that the defendant could have been dealt with adequately in that court if the penalty for each offence proves to be less than the $10,000 limit of the jurisdiction of the Local Court. He supports this submission by referring to the more serious nature of the offence in Queensland. In one case there was the prospect of a fine significantly in excess of $60,000 plus a term of imprisonment. In the other case the maximum fine was also significantly greater than that applicable in NSW. 37. In those circumstances Mr Kimmins submits that if the notional penalty in NSW is accepted as being $10,000 then applying a 50 per cent discount, after having regard to the severity of the offence, it should attract a fine of $5000. That would then result in the defendant having been penalised to the total extent of $35,000. Furthermore, he then adds the $22,300 for removal and rehabilitation costs, making a total commitment in NSW of $27,300, plus costs yet to be assessed. 38. The submission is founded upon a finding that the prosecutor should have proceeded in the Local Court. This is not a case where there is an isolated incident involving some accidental or inconsequential behaviour. The defendant pursued a course of behaviour which resulted in 265 drums being left in the open, unattended for an extended period, without any intention to dispose of them in a responsible way. I am not persuaded that the prosecutor was obliged to proceed in the Local Court in the circumstances of this case. 39. Furthermore, I have determined that the appropriate penalty is greater than $10,000. 40. A submission that the penalty should take account of the delay in the proceedings is rejected. No relevant prejudice has been demonstrated. 41. The defendant embarked on a course of conduct for commercial gain. Irrespective of the ultimate profit made by him, about which I make no finding, this course of conduct resulted in the dumping of drums containing materials capable of causing significant environmental harm in circumstances where no adequate or, for that matter, any protection was provided. Without knowing all the details of the events involved in the offences in Queensland, nevertheless, the facts surrounding the offences in NSW show a serious disregard for the law with real potential for consequences resulting in serious harm to the environment. 42. The defendant, on the other hand, has demonstrated by his affidavit evidence that the prosecution for the offences in Queensland and in this state has resulted in humiliation to him and members of his family. I am satisfied that the defendant is unlikely to offend again in respect of this type of offence, having regard to the result whereby he has incurred liability of at least $112,000 in Queensland, and a minimum of $22,300 plus costs in NSW. Nevertheless, as Mr Kimmins accepts, general deterrence must be a relevant and indeed one of the dominating factors so far as this case is concerned. In this respect the Queensland convictions have already provided a significant element of general deterrence in that jurisdiction. 43. I accept that the defendant may have had some difficulties with his earlier life, and to some extent they are continuing, both on a personal and social basis. I also accept that at least in one respect he has made a worthwhile contribution to community welfare. However, none of those matters explain or provide a reason for what occurred. Certainly not in an adequate sense so far as the Court is concerned. Although some account can be taken of his good record and his unfortunate past in some respects, they are not matters which weigh heavily on the Court. This is a case where the appropriate penalty for a single offence would have been in the range of $30,000 to $40,000 having regard firstly, to the maximum fine of $60,000, and secondly, the seriousness with which the Court has dealt with other offenders on previous occasions. 44. After taking into account the convictions in Queensland as relating to part of the same series of transactions and that the three offences in NSW are relevantly related for the purposes of application of the totality principle, I have formed the view that an appropriate fine is $15,000 for the first offence, and $2,000 in each of the other cases. 45. The relevant authority for the adopted line of reasoning is summarised in the case referred to by Mr Buchanan, namely R v Robert William Larsen [1989] 44 ACrimR 121 at 125, and in the Court of Appeal decision in Camilleri's Stock Feed Pty Ltd v Environment Protection Authority 32 NSWLR 683. Camilleri was a case dealing with an appeal from this Court. 46. In making the Court's determination, I am mindful of the further reparation and legal costs incurred by the defendant in Queensland together with the proposed order to be made under s 14 of the EOP Act in this case, and the prospective costs order in these proceedings. The quantum of costs is not agreed. There is nothing which enables me to make an order in regard to the payment of costs pursuant to s 52(1) of the Land and Environment Court Act 1979 ("the Court Act"), other than to direct that they be determined pursuant to s 52(2) of the Court Act. 47. In matter 50003 of 1999, the defendant is convicted. The defendant is fined the sum of $15,000. The defendant is ordered to pay the costs of the prosecutor determined in accordance with s 52(2) of the Court Act. 48. In matter 50004 of 1999 the defendant is convicted. The defendant is fined the sum of $2,000. No order as to costs. 49. In matter 50005 of 1999 the defendant is convicted. The defendant is fined the sum of $2,000. No order as to costs. 50. In making no order as to costs in matters 50004 of 1999 and 50005 of 1999, I am taking account of the fact that the costs in matter 50003 of 1999 will incorporate and include all of the costs incurred in respect of the other matters. 51. The exhibits may be returned.