Land and Environment Court of New South Wales CITATION : Gosford City Council v Beresford and Beresford Concrete Products Pty Ltd [2001] NSWLEC 43 No 50030 of 1999, No 50051 of 1999 and No 50053 of 1999 PROSECUTOR Gosford City Council DEFENDANT Beresford PARTIES : No 50031 of 1999, No 50050 of 1999 and No 50052 of 1999 PROSECUTOR Gosford City Council DEFENDANT Beresford Concrete Products Pty Ltd FILE NUMBER(S) : Nos 50030-31 of 1999 and Nos 50050-53 of 1999 CORAM: Pearlman J KEY ISSUES: Environmental Offences :- water pollution - plea of guilty - penalty - mitigation LEGISLATION CITED: Clean Waters Act 1970 s 16 Environmental Offences and Penalties Act 1989 s 9 CASES CITED: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 82 LGERA 21 DATES OF HEARING: 01/12/99 EX TEMPORE JUDGMENT DATE : 12/01/1999 PROSECUTOR Mr M C Fraser (Solicitor) SOLICITORS P J Donnellan & Co LEGAL REPRESENTATIVES: DEFENDANTS Mr D G Henderson (Solicitor) SOLICITORS Tesoriero Henderson Cotter JUDGMENT: IN THE LAND AND 50030-31 and 50050-53 of 1999ENVIRONMENT COURT Pearlman J OF NEW SOUTH WALES 1 December 1999 No 50030 of 1999, No 50051 of 1999 and No 50053 of 1999GOSFORD CITY COUNCILProsecutorvCOLIN PAUL BERESFORDDefendant No 50031 of 1999, No 50050 of 1999 and No 50052 of 1999GOSFORD CITY COUNCILProsecutorvBERESFORD CONCRETE PRODUCTS PTY LTDDefendantJUDGMENT1. In this matter the defendants, Beresford Concrete Products Pty Ltd, and Mr Colin Paul Beresford have each been charged with three offences, each charge being brought under s 16 of the Clean Waters Act 1970 which provides that a person shall not pollute any waters. The incidents took place on 18 May 1998, on 28 July 1998 and on 6 August 1998 respectively and in relation to each charge the company defendant and Mr Beresford have each pleaded guilty. The only task therefore for the Court in this case is to fix a penalty. 2. The offences occurred on land which is lot 3 DP 730196 at Pile Road, Somersby ("the site"). The registered proprietor is the defendant company and Mr Beresford is a director of the defendant company. The defendant company planned to carry out a development on the site for the purposes of a factory and external storage. It had over the previous two years been engaged in obtaining approvals for that purpose from the council. Between December 1997 and March 1998 some erosion and sediment control devices were put in place on the site by the defendants and some works were carried out. On 18 May 1998, which is the date of the first offence, the council carried out a site inspection. It was raining at the time. Turbid water, which contained clay, silt and sand, was flowing from the site towards Pile Creek along the tributaries and watercourses that lead to Pile Creek. Pile Creek is a watercourse that runs into Mooney Mooney Creek which itself runs into the Brisbane Water National Park. 3. On 28 July 1998 the prosecutor carried out a further inspection. On that date it was not raining. The prosecutor observed circumstances that it believed constituted deemed pollution under s 16(2) of the Clean Waters Act: that is, the defendants had placed erosion and sediment controls on the site which were not adequate, so that clay, silt, sand and other material on the site was likely to fall or be washed into the waters of Pile Creek and beyond. 4. The last offence was 6 August 1998. Light rain was falling. The same events occurred. Turbid water laden with clay, silt and sand was passing from the site into the watercourses leading to Pile Creek and directly into Pile Creek. 5. The Court is required to consider the matters set out in s 9 of the Environmental Offences and Penalties Act 1979. The first of those is the extent of the harm caused or likely to be caused to the environment by the commission of the offence. There was no actual harm to the environment. The only evidence is of the likelihood of harm. According to the agreed statement of facts upon which I rely in this judgment there are areas near Pile Creek which are habitat of the red crowned toadlet, a threatened species. The habitat would be harmed by a discharge of the kind that occurred from the site, and such a discharge would interfere with smaller invertebrates within Pile Creek itself. I emphasise however that there is no evidence that no actual harm occurred. 6. The second matter that I am required to take into account are the practical measures which may be taken to prevent control, abate or mitigate that harm. The likelihood of harm to the environment could have been avoided. The defendants accept that the measures they took were inadequate and that they could have been made adequate. In fact, since the offences have occurred, the defendants have carried out work on the site and it is unlikely that there will be any more occurrences of pollution of waters as occurred on the three occasions. 7. Next I take into account 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. Mr Henderson, who appeared for the defendants, properly pointed out that the defendants accept that the likelihood of harm was foreseeable, although the defendants engaged a contractor for the work on the site and believed that what was done was adequate and proper. Nonetheless they accept that harm was likely to occur if the soil and erosion control measures were not adequate. 8. Lastly I take into account the extent to which the person who committed the offence had control over the causes which gave rise to the offence. There is really no debate about this matter. The company defendant was the registered proprietor of the site and the company is controlled by Mr Beresford. Mr Beresford was in control of the circumstances on the site and the causes which gave rise to the offences. 9. There are a number of matters that I take into account in mitigation of penalty. Firstly, this was not a case of blatant recklessness on behalf of the defendants, or negligent action or wilfulness in relation to what was occurring. When notified by the council that unauthorised works appeared to have been carried out and that erosion and sediment control measures across the site should be upgraded, Mr Beresford got in touch with the council, had a conversation with an officer of the council, and believed he knew what had to be done. He also wrote on 29 June 1998 to the council stating that no further development works had been carried out on the site, additional works of erosion control had been carried out, grass seeding had been completed and that he intended to monitor the site to see that it worked. 10. In relation to the unauthorised works that I have just mentioned, class 4 proceedings were commenced on 27 August 1998 by the council seeking declarations relating to them. Shortly thereafter consent orders were made. Those consent orders required the carrying out of work to correct the breaches to which the proceedings related. That work was done, and the approval process in relation to the development proposed for the site has been finally completed. 11. Secondly, I take into account the early plea of guilty entered into by both defendants. 12. Thirdly, I take into account the cooperation of the defendants with the prosecutor. This is evidenced by two matters. One is the agreed statement of facts which is substantial but clear and unambiguous and of great assistance in the proceedings. That required the cooperation of both the prosecutor and the defendants. I take into account that the defendants did not, as a matter of cooperation, take a technical defence which was available to them in relation to the offences which occurred on 28 July and 6 August 1998 but instead agreed to an amendment of the summonses in matters 50050, 50051, 50052 and 50053 of 1999 when the granting of leave to make that amendment was arguable. The defendants' cooperation has been, as Mr Henderson put it, less than absolute, but consent orders in the class 4 proceedings were promptly entered into. When Mr Beresford understood what was required, he did what was required, and the approval process was completed. 13. Fourthly, I take into account that the defendants have agreed to pay the prosecutor's costs in the amount of $16,660. 14. Fifthly I take into account the contrition expressed by Mr Beresford on behalf of himself and his company which he expressed in his affidavit of 24 November 1999. I accept that he is embarrassed and regrets the situation that has occurred. In addition, I accept Mr Henderson's submission that the remorse of the defendants is shown by their early plea, by their abandonment of the technical defence, by their agreement to pay costs and by their agreement as to the statement of facts. 15. Sixthly, an affidavit was sworn by Mr Beresford in which he set out circumstances of himself and his wife, Mrs Carol Lynette Beresford. They have each had important public positions and have, over many years, done important work in the community. Mr Beresford is still doing important work especially in relation to environmental matters. As he states in his affidavit, the defendant company has spent the past twelve months developing a new product in conjunction with Wyong Council in an attempt to provide young people with more socially acceptable ways of enjoying forms of entertainment such as skateboarding, by developing precast skateboard modules that can be arranged to form a complete skateboard park. Furthermore the defendant company has been working with the inventor of a gross pollutant trap to successfully develop a precast modular solution to his invention and a copy of the brochure about that gross pollutant trap is an annexure to Mr Beresford's affidavit. Furthermore, Mr Beresford is currently working with a person from the University of Western Sydney in relation to a pollution control device called Stream Guard. 16. I take these matters into account in showing that Mr Beresford is of good character, that he (and Mrs Beresford) have been doing important work in the community and that he has contributed in a major way to community life and especially environmental life. That is an important consideration. 17. Seventhly, I take into account that the defendants have no prior convictions. 18. In all these circumstances it is clear to me that the penalty should be at the lower end of the scale and the prosecutor has so acknowledged. The maximum penalty in case of a corporation for an offence of this kind is $125,000 and in the case of an individual the maximum penalty is $60,000. I am required to consider the totality principle stated in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 82 LGERA 21. I refer in particular to the judgment of Kirby P (as he then was) at p 41 where his Honour quoted the principle stated by Street CJ in R v Holder (1983) 3 NSWLR 245 at 260. It is only necessary for me to quote from that to the effect that the sentencing judge will evaluate in a broad sense the overall criminality involved in all of the offences and having done so will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. 19. This is a situation where the offences, though three of them for each defendant, were of the same kind and occurred in the same fashion. They each involved the discharge of clay, silt and soil from the site into waters by reason of inadequate erosion and sediment control measures. Mr Henderson put to me that the greater responsibility as between the two defendants rests in Mr Beresford, he being in control of the company and the person who is the mind of the company. 20. It seems to me that the appropriate penalty overall is $10,000. I propose to apportion that penalty in the following way. I propose to impose a penalty in relation to the first charge against Mr Beresford, (No 50030 of 1999) in the sum of $5000, and to impose a penalty of $1000 in relation to each of the other offences. 21. My formal orders are as follows:No 50030 of 1999:(1) The defendant is convicted of the offence with which he is charged. (2) I fine the defendant the sum of $5000 to be paid to the Registrar of the Court within one month of today's date. No 50031 of 1999:(1) The defendant is convicted of the offence with which it is charged.(2) I fine the defendant the sum of $1000 to be paid to the Registrar within one month of today's date.No 50050 of 1999:(1) The defendant is convicted of the offence with which it is charged.(2) I fine the defendant $1000 to be paid to the Registrar of the Court within one month of today's date. No 50051 of 1999:(1) The defendant is convicted of the offence with which he is charged.(2) I fine the defendant $1000 to be paid to the Registrar of the Court within one month of today's date. No 50052 of 1999:(1) The defendant is convicted of the offence with which it is charged.(2) I fine the defendant $1000 to be paid to the Registrar of the Court within one month of today's date. No 50053 of 1999:(1) The defendant is convicted of the offence with which he is charged.(2) I fine the defendant $1000 to be paid to the Registrar of the Court within one month of today's date.22. I order the defendants to pay the costs of the prosecutor in relation to all six offences in the amount of $16,660. 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.