Land and Environment Court of New South Wales CITATION : Environment Protection Authority v Brucic [2000] NSWLEC 213 PROSECUTOR PARTIES : Environment Protection Authority DEFENDANT Darko Brucic FILE NUMBER(S) : 50108 of 1999 CORAM: Sheahan J KEY ISSUES: Prosecution :- pollution of waters - plea of guilty - fine - costs Clean Waters Act 1970 s 16(1) LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 10 Environmental Offences and Penalties Act 1989 s 14 CASES CITED: DATES OF HEARING: 18/08/2000 EX TEMPORE 08/18/2000 JUDGMENT DATE : PROSECUTOR Mr M Kelly of EPA DEFENDANT LEGAL REPRESENTATIVES: Barrister Ms K Nomchong Solicitors Gary Robb & Associates JUDGMENT: IN THE LAND AND Matter No: 50108 of 1999 ENVIRONMENT COURT Coram: Sheahan J OF NEW SOUTH WALES 18 August 2000 ENVIRONMENT PROTECTION AUTHORITY Prosecutor v DARKO BRUCIC Defendant JUDGMENT 1. In matter 50108 of 1999, the defendant Darko Brucic has pleaded guilty to the charge that between 29 January 1997 and 29 January 1999 he " polluted waters ", contrary to s 16(1) of the Clean Waters Act 1970, by dumping waste in an erosion gully, constituting an unnamed perennial creek or watercourse, on a property known as " Lumley ", off Mac's Reef Road at Sutton in New South Wales. 2. The gully leads into Donnellys Creek, which in turn runs into the Yass River, approximately 500m downstream of that creek's confluence with the unnamed creek. 3. The defendant admits to placing on the dry bed of the creek a range of material, but not all of the materials particularised in the summons. He agreed to a statement of facts, made an affidavit, and gave oral evidence. 4. The court is satisfied that, whatever else, including perhaps some small amounts of domestic garbage, may have been dumped there at material times, the defendant himself dumped some 50 or more ten tonne loads of mainly clean soil, concrete, rock and general building rubble and materials. 5. He did so with the oral permission of the property owner, but with no relevant permits from either the Council or the EPA. The owner wanted the gully filled in, but with clean fill, to be covered by soil. 6. The gully site is said to be about 163m long, up to 8m wide, and up to 2.5m deep. Mr Brucic thought that the dumping of such clean fill in a dry gully was acceptable, and he was told by the owner's representative that necessary approvals were not the defendant's concern. 7. The defendant says he sought the owner's agreement to the erection of a dam of some sort at the end of the fill site, but that agreement was not forthcoming. 8. He gave evidence also of his own familiarity with the use of hay bales on construction sites, for sedimentation control purposes, but admits no controls were put in place at the subject site. 9. To his credit, the defendant took precautions to ensure that he dumped only clean waste, containing no rubbish or asbestos; but, also to his credit, he conceded that some sealant containers and other materials could have ended up in the building rubble. He says in par 8 of his affidavit, and I quote the paragraph in full: During the period January 1997 to January 1999 I dumped building waste material at the 'Lumley' property. The building rubble that I dumped consisted mostly of bricks, concrete, soil, timber, gyprock, cardboard boxes. It is possible that there were some paint tins, plastic conduit and polypipe but they formed a small part of the overall waste and they were usually part of a separate dump. I never dumped kitchen oil tins, glass bottles or domestic waste. 10. Also to the defendant's credit the court takes account of the following: (i) His reasonably early plea of guilty. Any delay in the plea has been adequately explained by his need to seek technical advice on the relevant legal status of the gully; (ii) His frankness and co-operation with the Prosecutor. (iii) His 15 years of activity in the excavation industry without adverse environmental notice. (iv) The commendations he received in the four character references tendered in support of him ( Exhibit B2 ). (v) His willingness, indeed sense of urgency, in respect of the necessary rectification works to be done at the subject site, by way of stabilisation rather than removal, the need for at least some of which was not created by the activities proved against, or admitted by, him. 11. It is expected the works agreed upon will cost some seven to ten thousand dollars, and I note that that amount is probably quite close to the amount of tip fees he saved by using the subject site. 12. The maximum penalty available to the Court in this case is a fine of $60,000. 13. The defendant seeks the benefit of s10 of the Crimes (Sentencing Procedure) Act 1999, but such leniency is not lightly given in environmental matters. 14. The defendant also seeks the benefit of the court's discretion on the question of costs. 15. The s 9 or s241 considerations are quite clear in this case, and there is little dispute to be found in the evidence. 16. There is no evidence of actual harm , and the potential for slight harm exists, but is not high. It will be eliminated by the doing of the proposed and agreed remediation works, and it is not the defendant's fault that they have not been done by now. There is some evidence that the works will not only eliminate the harm and potential harm, but do the local environment some good by reducing the erosion of topsoil on " Lumley ". 17. The defendant was born in 1963. He is married with four children. He and his wife conduct an excavation/earthmoving business, with the help of one employee, and apparently have done so for fifteen years. 18. His industry in the Canberra region must realise that waste such as this cannot be dumped in rural gullies without the necessary permits and precautions. 19. I have decided in all the circumstances that the defendant should not have the benefit of either s10 or the court's discretion on costs. 20. After applying the appropriate discounts, I have decided to impose a penalty of $6,000. 21. The orders of the court will, therefore, be: 1. The defendant is convicted of the offence charged in the summons. 2. The defendant is fined $6,000, payable by 31 March 2001. 3. The defendant is ordered to pay the reasonable costs of the Prosecutor, to be agreed or assessed according to law, within six months after such agreement or assessment. 4. The defendant is ordered, pursuant to s 14 of the Environmental Offences & Penalties Act 1989, to take the steps set out in the draft order filed in court today, which document I have signed and dated today. 5. Exhibit B2 may be returned. The other exhibits are to remain in the court file. 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.