Land and Environment Court of New South Wales CITATION : Environment Protection Authority v Mangha Singh & Sons Pty Limited [2000] NSWLEC 277 PROSECUTOR Environment Protection Authority PARTIES : DEFENDANT Mangha Singh & Sons Pty Limited FILE NUMBER(S) : 50059 of 1999 CORAM: Cowdroy J KEY ISSUES: Prosecution :- plea of guilty - adoption of new waste water treatment system mitigating factor - imposition of fine Clean Waters Act 1970 s 16(1) LEGISLATION CITED: Pollution Control Act 1970 Protection of the Environment Operations Act 1997 s 241 Camilleri Stockfeeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683; CASES CITED: Environment Protection Authority v Axer (unreported NSWCCA 22 November 1993) ; Environment Protection Authority v Peter Charles Attard [1999] NSWLEC 220 unreported DATES OF HEARING: 1/5/00 EX TEMPORE 05/01/2000 JUDGMENT DATE : PROSECUTOR Mr P Barley (Solicitor) SOLICITORS Environment Protection Authority LEGAL REPRESENTATIVES: DEFENDANT Mr C Hoy (Barrister) SOLICITORS Rummerys Solicitors JUDGMENT: IN THE LAND AND MATTER No. 50059 of 1999 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 1/5/00 Environment Protection Authority Prosecutor v Mangha Singh & Sons Pty Limited Defendant JUDGMENT Facts 1. By an order and summons dated 15 September 1999, the defendant, Mangha Singh & Sons Pty Limited ("the defendant"), was charged that it committed an offence against the Environmental Offences and Penalties Act 1989 in that on or about 30 September 1998 it polluted waters contrary to s 16(1) of the Clean Waters Act 1970. The particulars referred to in the summons identified the waterway which was the subject of pollution as an unnamed watercourse running from north to south on land at lot 130 of DP755725 at Newrybar also described as Migden Flat Road, Newrybar, in northern New South Wales ("the site"). The site was leased by the defendant. The pollution was specified as waste containing non-filterable residues which impacted upon the biochemical oxygen demand in the waterway. The defendant has pleaded guilty to the charge. 2. The facts, which are contained in the affidavits filed by the Environmental Protection Authority ("the prosecutor") and the defendant, disclose that the defendant operated a 200 sow piggery ("the piggery") upon the site. 3. The defendant possessed a licence number 003605 issued pursuant to the Pollution Control Act 1970 ("the licence"). Condition S1 of the licence provided that the licensee must not pollute waters except as expressly permitted by the licence. Condition W4 of the licence provided that ' irrigation of waste water must not be carried out within 50 metres of any watercourse' . The conditions of the licence foreshadowed the installation of a system to treat waste water ("treatment system") at the piggery. As at the date of the offence, namely 30 September 1998, it appears that the treatment system envisaged in the licence was in the process of installation. 4. On 30 September 1998 Mr Ian Paul Greenbank, an officer of the Environmental Protection Authority based at Grafton, attended the site. The inspection on that day was apparently for the purpose of investigating the installation of the treatment system. In the course of his visit Mr Greenbank observed that an irrigator spraying a paddock with waste water from the piggery had moved into a position where its spray arc was permitting waste water to come into contact with water in a small creek or depression. Mr Greenbank has described the small creek in a plan which has been tendered in evidence. 5. Mr Greenbank estimated that the irrigator had been set up within 10 metres of the small creek. He observed that the water channel which was being affected by the spray entered another larger water channel which was running from east to west. This channel held a much larger volume of water and it flowed into the Newrybar Swamp. 6. Mr Graham Harvey Plumb, an environmental health officer, attended the site on the same day, namely 30 September 1998. He said that the irrigator was running in a generally southerly direction along a wire some 75 m or so in length. The wire was strung generally parallel to the man-made drain. He said:- As we approached closer to the irrigator I could see drops of effluent falling regularly into the drain causing the water to splash. I could clearly hear the sound as the effluent splashed over the surface of the water already in the drain. The amount of effluent dropped directly into the drain was dependent on the north-easterly breeze. A decent gust would carry the plume back toward the irrigator but when it dropped a quantity would fall in the water at each pass . Later in his affidavit he said:- I saw that the water became brown and cloudy at the point where the irrigator had been and was more cloudy where the drops were falling in. I observed that downstream of the irrigator the drain ran at approximately twice the rate it did upstream of it and the bottom was not visible. I walked along the channel and I saw that cloudiness was evident downstream all the way to the confluence with the channel containing water which was running from west to east. Where the north-south channel entered there was a surface scum at the point of entry. In the east-west channel clear water to the west upstream of the confluence became cloudy downstream of the junction but not to the degree present in the drain entering. 7. A conversation took place between Mr Greenbank and Mr John Singh the manager and director of the defendant. When it was drawn to Mr Singh's attention the spray arc of the irrigator was passing into the waterway he promptly took steps to remove the irrigator. 8. Ms Penelope Ajani, an environment protection officer with qualifications in science has investigated and assessed the samples which were taken from the waterway on 30 September 1998. In her affidavit she described the effect of the polluted water entering the waterway. In par [17] thereof she said:- Because of the potential threat to the oxygen levels in receiving waters from organic waste discharges, considerable emphasis is placed in the laboratory on the estimation of the oxygen demand of wastes, that is the amount of oxygen utilised in breaking down the wastes. This is measured by a laboratory test known as the five day biochemical oxygen demand test, that test is otherwise known as the BOD5. Ms Ajani continued:- The three samples taken on 30 September 1998 were tested for their biochemical oxygen demand using this test. As a result of her examination she found as follows:- The BOD5 concentrations of the samples, labelled 'pig effluent and creek downstream' taken on 30 September 1998 in the EPA laboratory report 9800953, are 3,300 and 3,900 mg/L respectively. The BOD5 of the sample point "creek U/S", (ie. the channel upstream of the influence of the irrigator), was reported as < 3 mg/L. The discharge, therefore, caused more that a 1000-fold increase in the BOD5 of the receiving water. This is a significant increase and means that the receiving water had a level of BOD5 more than 1,000 times higher than the level of 2 - 4 mg/L specified in the ANZECC guidelines and several times greater than raw sewage. In Ms Ajani's affidavit sworn on 7 May 1999, she said at par [21]:- The chronic effects of a discharge with such a high BOD5 concentration would lead to high oxygen demand in the receiving waters and subsequent reduced levels of dissolved oxygen in those waters which would have a deleterious effect on any resident aquatic communities. In her affidavit Ms Ajani listed the possible undesirable effects of the effect upon the waters of the creek as follows:- These concentrations would most likely have an environmental effect on the water quality and possibly aquatic flora and fauna in the receiving waterway. The pH levels were higher downstream of the irrigation effluent although the effect of this on the receiving environment is unclear. The seriousness of the environmental effect from this waste water would be proportional to the quantity and duration of the discharge. The potential for environmental harm is clearly established by the evidence. There is, however, no actual evidence of any harm being occasioned. 9. Mr Singh has given both oral evidence and evidence contained in an affidavit sworn on 29 April 2000. He stated that he has been involved in the pig industry for many years, having previously operated a smaller piggery for 50 sows for 21 years at Coorabell. The site has been operated as a piggery since 1917. The piggery employs three permanent and two casual workers and operates full-time for 52 weeks of the year. 10. Mr Singh has deposed that he did not set the line of the travelling irrigator on 30 September 1998 but that it was set by an employee. Mr Singh estimates that the irrigator travelled to a 20 metre distance from the watercourse. Whether it is 10 m or 20 m does not assist in view of the uncontested fact that the spray from the boom of the irrigator affected the watercourse. 11. The defendant had obtained professional advice concerning a management plan which included matters relating to pollution. Such plan demonstrates an attempt to establish a responsible method of treating effluent from the piggery. A treatment system has now been installed at the site. 12. Mr Ian Kruger an expert engaged by the New South Wales Department of Agriculture, carried out an inspection of the piggery's housing and effluent management systems. He noted that in the past 18 months the defendant has invested between $20,000 and $30,000 in upgrading facilities particularly relating to the environmental design and implementation of the industry standard lagoon treatment and irrigation system. 13. The effluent treatment system, provides for effluent water to be pumped from various sumps to a primary treatment pond of approximately 2.5 megalitres at a distance of 1 kilometre from the sheds housing the sows. The effluent then flows into a secondary aerobic pond of approximately 9 megalitres. From that secondary treatment pond effluent is sprayed onto pasture used for grazing cattle. There is approximately 150 acres of land available for irrigating effluent and the system has been properly designed and approved by the Environmental Protection Authority. The treatment system meets best industry practice. 14. Mr Thomas William Madden has sworn that he had previously conducted the piggery, although apparently in smaller proportions, on the same site for 38 years and has substantial experience in the conduct of piggeries. He has visited the piggery frequently and has observed that effluent is now being dispersed in such a manner as to avoid the pollution of any watercourse on the property. Prior to the installation of the current system piggery effluent had been dispersed in an untreated form onto pastures on the property. 15. Mr Paul John Williams, a farmer operating a piggery nearby, has expressed the opinion that the practices adopted for the management and treatment of effluent are of a high standard. Mr Phillip Denison, who prepared the various management plans, has said that it is now impossible for pollution of the type which occurred on 30 September 1998 to reoccur. Penalty 16. Section 241 of the Protection of the Environment Operations Act 1997 ("PEO Act") requires the Court to consider the extent of the harm caused or likely to be caused to the environment by the commission of the offence. The measures taken to prevent, control, abate or mitigate such harm have been dealt with in the evidence. 17. A remaining question posed by s 241(1)(c) of the PEO Act requires the Court to consider ' 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' . 18. Mr Hoy, who appears for the defendant, relied upon Environment Protection Authority v Peter Charles Attard [1999] NSWLEC 220 unreported. That decision concerned a different factual circumstance. In Attard the defendant had no way of knowing that the dam wall which held the effluent had a weakness caused by a rusting car body, which had previously been buried in the wall. In this case it was foreseeable that if the irrigator travelled close to a watercourse there could be environmental harm. The defendant had full control of the irrigator, even though it was an employee who actually undertook the work of positioning it. 19. The defendant has pleaded guilty and in accordance with principles of Camilleri Stockfeeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683, the defendant is entitled to a mitigation of the penalty which would otherwise be applicable. The Court is also mindful that the defendant has co-operated with the prosecutor and has now implemented steps to ensure that a re-occurrence will not be possible. 20. Mahoney JA in Environment Protection Authority v Axer (unreported NSWCCA 22 November 1993) said:- In the end the object of the legislation is to prevent pollution and to do this, inter alia, by the deterrent effect of a substantial fine and by, in consequence, persuading the industries concerned to adopt preventative measures . A maximum penalty for this offence if committed by a corporation is $125,000. The defendant has pleaded guilty and has had no prior convictions for environmental offences, albeit that there have been three notices which are unrelated to the question of water pollution and measures have now been taken to prevent a recurrence of the events of 30 September 1998. 21. The Court considers that an appropriate penalty would be reflected by imposing a fine. Matters pertaining to the environment require strict and rigid enforcement. The appropriate penalty is 10 per cent of the maximum fine. The Court does not consider it appropriate that a bond should be provided and no conviction recorded. Orders 22. The Court orders that: (1) In respect of the offence as charged, the Court imposes upon defendant a fine of $12,500.00 (2) The Court orders that the defendant pay the costs of the prosecutor as agreed or as fixed by the registrar pursuant to the regulations. (3) The exhibits be 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.