Land and Environment Court of New South Wales CITATION: Byron Shire Council -V- Wain & Anor. [1999] NSWLEC 13 This judgment revised on: 09/03/99 PARTIES PROSECUTOR: Byron S.C. DEFENDANTS: Wain, B. Wengarin Pty Ltd NUMBER: 50116 and 50119 of 1998 CORAM: Bignold J KEY ISSUES: :- Pollution of waters by unauthorised deposition of fill reclaiming land - environmental consequences of reclamation - whether appropriate to make order under s.14 to restore land or to ameliorate reclamation LEGISLATION CITED: Pollution of waters by unauthorised deposition of fill reclaiming land - environmental consequences of reclamation - whether appropriate to make order under s.14 to restore land or to ameliorate reclamation DATES OF HEARING: 02/04/1999; 02/05/1999 EX TEMPORE JUDGMENT DATE: 02/05/1999 PROSECUTOR: Mr J. Maston, Barrister Solicitors: Wilshire Webb LEGAL REPRESENTATIVES: DEFENDANTS: Mr M. Tobias QC with Mr G. Newport, Barrister Solicitors: Abbott Tout JUDGMENT: 1. These are two charges of an offence against s 16 of the Clean Waters Act 1970, which in turn becomes an offence against s.8B of the Environmental Offences and Penalties Act 1989, brought against the Defendant Barry Wain and the Defendant Wengarin Pty Limited, said to be committed between 31 July 1997 and 5 August 1997, whereby the Defendant Wain did pollute waters of Belongil Creek by placing in the waters material consisting of soil, gravel and rocks contrary to s.16 of the Clean Waters Act. 2. The offence against the Company, of which Mr Wain is a director and principal shareholder, is a similar offence, namely the offence of "did cause the waters of Belongil Creek to be polluted". 3. Each Defendant has pleaded guilty to the charge and by consent, the charges have been heard together. 4. The circumstances of the commission of the offence are set forth in the evidence that has been given. Briefly stated, it can be summarised as follows. The Defendant Mr Wain, on or about 31 July 1997, directed some contractors to deliver to the site at which the offences were committed clean fill material of some 105 cubic metres, together with a large quantity of gabion rocks. Those materials were delivered to the foreshores of Belongil Creek in the vicinity of Manfred Street and Charles Street in Byron Bay, when Mr Wain arranged for the delivered materials to be deposited on the foreshores and banks of the Belongil Creek. Although the evidence is not entirely clear I infer the majority of the clean fill material was deposited in the waters of the creek in the form of a reclamation. 5. The dimensions of the fill material are set forth in a survey of Mr Canty, (Exhibit D), and generally speaking involve a linear dimension along the creek bank of some 35 metres and a maximum width of 2.5 metres. In all, some 70 m2of surface area of the creek bed for a depth of one metre was occupied by the fill material. That dimension excludes the further intrusion into the waters of Belongil Creek created by the batter and toe of the fill. 6. During the course of this operation, which was conducted in of the morning (involving some three or four hours) a Council officer came to the site and inspected what was happening and told Mr Wain to cease work. By that time the fill material had been deposited and compacted (in the sense of being rolled) but the gabion rocks had not been placed upon the bank to retain the fill material. That was subsequently done later that day. 7. Mr Wain's action of causing the fill to be so deposited on the banks and in the waters of the Belongil Creek are explained in his affidavit evidence upon which he was not substantially cross-examined. In short, he deposes to the fact that his Company, acquired lot 34 in Section 3 of Deposited Plan 1623, being a residential allotment situate on the Belongil Spit (and being a lot in a subdivision dating back to last century involving some 60 residential lots situate upon the Spit) in March 1996 for the sum of $470,000 In June 1997 he obtained development consent for the erection of a dwelling house on the lot, that consent having been obtained by virtue of the consent orders granted by this Court in an appeal brought by him against the Council's refusal of consent. 8. Some three weeks later, Mr Wain gave instructions for the aforesaid work to be undertaken on the foreshore. He said he took this action because he was frustrated with the problems of obtaining access to his property over a right-of-way running along the creek foreshore which benefited his land. Access to almost all of the lots on the Belongil Spit depends upon physical access via Manfred Street by way of a de facto extension of Charles Street. That access starts at Manfred Street by traversing lots 1 and 2 both in the ownership of the Council. Lot 1 has been substantially lost to the creek by the process of erosion and in fact, the bitumen formation road traverses lot 2 owned by the Council (also fronting Manfred Street) and then traverses lots 11, 12 and the south-eastern corner of lot 13, those three last-mentioned lots being owned by Mr Vaughan, before proceeding in a northerly direction, giving access to a number of the lots situated to the north, including lot 34 owned by the Defendant company. Although there are a large number of lots on the Belongil Spit, only about ten or so lots north of Mr Vaughan's home have in fact been developed with dwelling houses. 9. Mr Wain, in his affidavit, deposes to the fact that he was aware of access problems having been experienced by other persons in common with him situate to the north of Mr Vaughan's three lots and the fact that action that he took giving rise to the present charges was taken in his attempt to provide access along the legal right-of-way (created by the subdivision last century) so as to avoid the existing access which is located outside the boundaries of the right-of-way over the Vaughan lots. 10. There is a suggestion in the evidence that continuing right of access over the access traversing the Vaughan lots was uncertain and was not guaranteed in the future and it appears that Mr Wain, acting on behalf of himself and the interests of his own company and the interests of other land owners situate to the north of the Vaughan properties on the Belongil Spit, took the action that he did (involving the commission of the offence) in order to guarantee ongoing unobstructed access to his property. The question of access is a vexed and continuing problem and I have been informed that proceedings are pending in the Supreme Court of New South Wales involving an application by the Defendants and multiple other land owners situate on the Belongil Spit, north of the Vaughan property, pursuant to s.88K of the Conveyancing Act 1919. These proceedings are taken against the Council (the Prosecutor in this case) to seek legal access by way of the creation of an appropriate easement or right of way over lot 2 owned by the Council (it being recalled that the right of way created at the time of the residential subdivision last century running along the bank of the Belongil Creek traversed only lot 1 but that lot has essentially been lost to the creek by virtue of ongoing erosion occurring over the past century.) Those proceedings have been apparently expedited and are to be heard in May of this year. 11. The present proceedings were brought by the Council by summonses filed on 30 July last year (almost 12 months to the day after the commission of the offences). Before that, it appears that Mr Wain had been in discussion with the Council through its senior officers and as late as March 1998, i.e. five months before the Council commenced the present proceedings, he spoke to Mr Peter Fryar, a senior officer of the Council, seeking to resolve the issue concerning the placement of the fill and the access question. 12. In paragraph 18 of his affidavit, Mr Wain said that he asked Mr Fryar whether he should just remove the works to which Mr Fryar is said to have replied, "no don't take them out that will cause more problems why don't you come in and see me and to discuss it." 13. Mr Wain, in paragraph 18 of his affidavit on which he was not cross-examined, and which testimony I accept, goes on to say that the following week he met with Mr Fryar and the General Manager of the Council with one of his neighbours at which meeting he said, "All I want is access to my land, I didn't know that I needed your permission, I'm sorry, can I seal the road I want to do this properly". 14. I interpose at this point that there are pending in this Court class 4 proceedings brought by the Council against Mr Wain and the Defendant company seeking declaratory and injunctive relief in relation to the deposition of the fill on the bank of the Belongil Creek (being the very matter the subject of the present charges). Those proceedings were filed in the Court at the end of July, I take it at the same time that the present criminal charges were filed. 15. Evidence at the trial has tended to focus upon the expert opinions of various witnesses called for the Prosecution and the Defence concerning the question of the environmental consequences of the commission of the offence. This evidence is not only relevant to the question of pecuniary penalty as provided in s.9 of the Environmental Offences and Penalties Act, but has been more particularly directed to the question of whether there ought be an order made pursuant to s.14 of that Act. The Council in the proceedings seeks an order which in effect requires the removal of all of the fill deposited on the bank of the creek and its rehabilitation or restoration, The terms of the order claimed are set out in Exhibit 5. 16. The Defendants have resisted such orders, both on the merits and on the basis of legal submissions which I will presently relate. However, because the works have remained in a state of incompletion since 31 July 1997,the Defendants seek an order from the Court pursuant to s.14 not for the removal of the material and the rehabilitation or restoration of the bank, but for the retention of the fill material and for the carrying out of other works which are designed to render more environmentally acceptable the reclamation activity undertaken by the Defendants. The proposed order or the elements of an order sought under s.14 proposed and sought by the Defendants are set forth in the text and diagrams which have become Exhibit H in the proceedings. 17. Prosecuting Counsel, in his helpful address has asked the Court to regard the present offences as serious offences which have been committed by the Defendant knowingly, wilfully and with the object of gaining some advantage for himself and itself, being a land owner of one of the lots on the Belongil Spit, and also, evidently, for a number of other land owners who are apt to be advantaged by the work undertaken if it can be used as part of the legal access from Manfred Street and Charles Street to the various lots (which I infer it has been in recent times). 18. Prosecuting Council has urged the Court to impose significant penalties, both in terms of fine and in terms of the order sought by the Council under s.14. However, he fairly concedes that if the Court were minded to make the order sought under s.14 by the Council, then this would be reflected in a reduced fine, recognising the fact, that according to the evidence, the cost of satisfying the restoration order sought by the Council would be in the order of $20,000. 19. Prosecuting Counsel has put to the Court that in committing the offence, the Defendant is to be seen not only as wilful and seeking to gain some advantage for itself as landowner but that it has not (and Mr Wain in particular has not) expressed any contrition for the wrongdoing and that essentially what it seeks by way of the order that it proffers to the Court under s.14 is to gain some advantage from its wrongdoing. 20. As I have said, the question of legal and actual access to many of these residential lots including the Defendant's lot on the Belongil Spit is vexed and is far from being finally resolved. In particular, the question of whether an easement is to be created over lot 2 owned by the Council is yet to be resolved in the aforesaid pending Supreme Court proceedings. 21. I do not accept the submission that Mr Wain has evinced an attitude which does not show contrition for the offence committed. His affidavit evidence (upon which he was not cross-examined materially) indicates that before taking the action that he did he sought and obtained some legal advice from a Sydney solicitor well experienced in planning and environmental law. He asked particularly whether he could maintain his right of way to render it useable and apparently, he was told that he had the right so to do. Mr Wain was criticised by Prosecuting Counsel for maintaining, in correspondence to the Council after being asked to show cause in respect of the action taken, that the works undertaken were "minimal works". I do not accept that criticism. 22. However, I find that the work was more than minor maintenance work and did involve as I say a de facto reclamation of upwards of two metres laterally into the waters of Belongil Creek to widen the distance within which to locate this particular curved and section of the right of way. But for the fact of the erosion and loss of lot 1 through the erosion process, the Defendant was in fact carrying out work on what, as a matter of title, is the site of the legal right of way. However, at the time that the work was done the legal right of way in this section of it had become water and part of the Belongil Creek, hence the Defendants' liability to the present charges of polluting waters and causing them to be polluted. 23. I do not accept Prosecuting Counsel's submission that I should not accept that Mr Wain (as he has deposed) did not believe that he needed development consent to carry out the filling operation. On the contrary, in his affidavit he deposes to the fact that he did not know that he needed permission of the Council and that he was sorry. The evidence satisfies me that Mr Wain, acting in the interests of his own Company as one owner of a lot on the Belongil Spit, which depended upon access along the bank of the creek from Manfred Street in common with many other lots, and evidently acting on behalf of these lot owners as well, took this action because he felt that he had no other choice in the situation, than to take self help in order to preserve what he thought were his entitlements in respect of the right of way. 24. Mr Vaughan, the owner of lots 11, 12 and 13 over which there is a de facto accessway has not given evidence in these proceedings but I accept Mr Wain's evidence that he at least apprehended, if not in the present then at least in the future, a problem with the continuation of access over Mr Vaughan's property, i.e. over that part of Mr Vaughan's property which is not burdened by the legal right of way. 25. In accepting Mr Wain's evidence of adopting the remedy of self help I am not to be taken to be condoning what he did, because what he did (as is attested by his plea of guilty and his company's plea of guilty to the present charges) obviously involved violation of the law although I tend to agree with Senior Defence Counsel's submission that most persons doing what Mr Wain did would not have seen themselves in those circumstances as being engaged in the commission of an offence of "polluting waters". However, because of the breadth of the concept of water pollution contained in the Clean Waters Act, obviously the undertaking of a reclamation in the manner where the present fill has been deposited on the creek bank so as to reclaim the waters, obviously falls within the concept of "water pollution". 26. As I have said, Prosecuting Counsel has acknowledged the connection between the imposition of a fine and the order sought under s.14, so that before I come to consider the appropriate fine to be imposed (as to which I will say something presently) I must first resolve the principal issue in dispute in these proceedings between the parties, namely the question of the s.14 order. 27. Senior Counsel for the Defendants in a helpful address has analysed the power contained in s.14 as not being readily available to sustain the order of the type sought by the Council. The Council has founded its claim to an order under s.14 on two alternate bases. The first basis is that the order is justified to "prevent the continuance of the offence". This basis is strongly disputed by Senior Counsel for the Defence. The second basis put by Prosecuting Counsel for the order is that it is justified "in order to prevent control, abate or mitigate any harm to the environment caused by the commission of the offence". Senior Counsel for the Defence acknowledges the theoretical availability of the power in such circumstance, but urges the Court to find that the Council's evidence has not established any relevant harm to the environment of such a nature as to require in all the circumstances any relevant "abatement or mitigation". That submission in truth, depends upon my evaluation of the competing evidence although I accept the Defence submission that the Court, before making an order of the type sought by the Council,would need to be satisfied very comfortably and beyond, perhaps, the ordinary civil standard of proof, of the matters conferring jurisdiction to make such an order and in this respect, the Defence submission is that the Council's evidence falls far short of that degree of satisfaction. 28. In my opinion, the Defence submission on the first basis which Prosecuting Counsel has formulated for justifying the order under s.14 is sound, i.e. that the power to give an order "to prevent the continuance or the recurrence of the offence" (the recurrence question does not arise in the present case) is concerned with "continuing offences" and the prevention of their continuance. An attractive argument was put to the Court by Prosecuting Counsel that the expression "prevent the continuance of the offence" in s.14(1) is to be read as involving something different from a "continuing offence" for which s.8B (in the case of a breach of the Clean Waters Act) makes particular provision for a daily penalty where "the offence continues". However, I am not ultimately persuaded of the correctness of that submission. In my opinion, the Defence submission should be accepted namely that that aspect of the enabling power of s.14 is concerned to bring about a termination of a "continuing offence". 29. This brings me to the alternative basis upon which the Prosecution seeks an order, namely the "abatement or mitigation of harm to the environment". Again, there has been some dispute as to the proper meaning to be given to s.14 of the words "harm" and "environment" and Prosecuting Counsel has helpfully drawn my attention to the very broad definitions contained in s.4 of the Environmental Offences and Penalties Act of both terms "environment" and "harm". In relation to "harm", he draws attention to the last phrase in the definition which would suggest that harm is caused "by any act or emission that results in the pollution of waters". That certainly appears to be the literal meaning of the definition, but as I have pointed out in a recent case, the literal meaning of that definition may require modification: see Owen v. Willtara Constructions Pty Ltd (unreported 3 September 1998) However, I do not need to resolve that matter here because I accept the Defence submission that the context of s.14 suggests a refinement or modification of the statutory definition, and as he points out the case has been presented on the basis of expert evidence going to the question of whether or not this reclamation has caused actual or future harm to the environment, and the "environment" that has been the subject of the expert testimony has not been the mere existence of the fill on the banks of the creek. In my view, contextual considerations of s.14 support the interpretation urged by Senior Counsel for the Defence, which I accept. 30. This brings me then, to my evaluation of the evidence, particularly having regard to what I have said about the standard of proof that is required of a party such as the Prosecutor here supporting the order that it has sought. In my view, the evidence does not support the making of an order under s.14. I accept, and I do not think that it is in dispute, that some element or degree of harm to the environment has been created by the loss of fish habitat of an area of some 100m2. This is not trivial and is not to be lightly passed over. However, of itself and by itself, I do not think that it is of such a degree or dimension as to require the drastic action of requiring the total removal of the existing reclamation. Other aspects of environmental harm albeit more problematical are referred to in the engineering evidence. These are of the creation of additional accretion upstream of the reclamation and the creation of a greater rate of erosion on the banks downstream the reclamation. The evidence is in dispute in respect of these matters and ultimately, I have not been satisfied by the Prosecutor that I should find that the differing opinions on such matters justify a finding that the likely harm or actual harm is of such a magnitude as to justify total abatement or mitigation in the manner sought by the Prosecutor's proposed s.14 order. 31. Mr Zerk's opinion was to the effect that sufficient time has probably already passed since the reclamation came into existence for conditions in the creek and in the creek dynamics, and environment, to have settled down so that the prediction of possible future damage or harm caused by erosion downstream referred to by Mr Lucena in his engineering evidence is not a real probability. I am inclined to accept Mr Zerk's opinion in preference to Mr Lucena on this matter. 32. The evidence concerning the nature of the lost riverine bank vegetation is even more problematical and I am not satisfied on the evidence that the vegetation removed from the length of embankment (some 35m), now occupied by the reclamation, was significant to anything like the degree of the significance of the vegetation located further north along the Spit and on the other side of the creek where, of course, substantial mangrove cropping occurs. 33. In short, the Prosecutor has not persuaded me that an order of the type sought by it is justified under s.14 and even if the power to make such an order had been shown to be available, I would not, in the exercise of discretion, having regard to my assessment of the evidence concerning the harm to the environment caused by the commission of this offence, have been disposed to make the order sought. 34. This brings me to consider the order sought by the Defendants, i.e. an order for additional work to be undertaken to the reclamation to render it more environmentally acceptable, particularly insofar as it may itself provide an area of fish habitat to offset the loss of what was previously available as fish habitat. Prosecuting Counsel did not ultimately put to me that it would be inappropriate to make an order of the type sought by the Defendant, but merely stated that he had no instructions one way or the other. In the circumstances, I am satisfied that the power to make an order to "mitigate harm to the environment" is available to sanction the type of order that the Defendants seek, namely that without appropriate completion action the present condition of the reclamation is likely to deteriorate and thereby cause environmental problems in the creek. 35. Accordingly, I propose to adopt the suggestion that fell from Senior Defence Counsel and that is to intimate that I propose to exercise the power under s.14 by making an order along the lines outlined in exhibit H but at this stage, propose to defer the final terms of such an order to enable the parties to confer and desirably to provide me with an agreed form and content of the order the Defendants seek. Failing agreement, of course, I will issue the order, after giving the parties an opportunity to address me on its precise form and terms. 36. The consequence of my decision in relation to the s.14 order sought by the Prosecutor on the one hand and that sought by the Defendants on the other, is that the question of pecuniary penalty or fine is to be addressed, uninfluenced by my decision to make the order along the lines of Exhibit H. (Senior Defence Counsel acknowledged that the making of an order sought by the Defendants ought not be reflected one way or the other in the imposition of an appropriate penalty). 37. I have been greatly assisted by the submissions of Counsel on the question of penalty and I do not propose to revisit the evidence in any great detail other than to note that s.8B of the Environmental Offences and Penalties Act provides a maximum penalty of $125,000 for an offence involving a violation of the Clean Waters Act such as the present charge brought against the Company is concerned, and a maximum penalty of $60,000 in the case of a similar offence committed by an individual. 38. I should also note Senior Defence Counsel's submission that in terms of fine, the Court should be guided by "the totality principle" of sentencing to in effect regard this as the one offence committed by both Mr Wain and his Company, and that in terms of personal culpability, Mr Wain should be regarded as chiefly culpable, he being the person who gave directions for the landfilling operation and that in consequence, the company should only receive a nominal fine. This is a little different from the basis of apportionment of culpability and penalty suggested by Prosecuting Counsel but I think little turns on it. I am content to adopt (because I consider them to be correct) the submissions of Senior Counsel for the Defence to apply the totality principle when it comes to imposing fines on both Defendants and to regard Mr Wain as principally culpable for the commission of the offences. 39. The matters of relevance to penalty are those set out in s.9 of the Environmental Offences and Penalties Act on which I have heard extensive and helpful submissions. The question of the environmental harm, actual or likely, has been canvassed in my consideration of the evidence relevant to s.14. I do not repeat it other than to say that it is obvious to me that if a creek of the nature of the Belongil Creek is reclaimed in the manner in which the present offences were committed, then there is an obvious change and alteration and degradation of the environment physically and aesthetically. It has been conceded that Mr Wain was responsible. I accept that he was not aware that he was causing environmental damage of the type canvassed in the evidence in this case but for present purposes, I am satisfied that he was aware that in doing what he did he would have foreseen that he was changing the environment and in that process that involved some element of harm, albeit aesthetic, but I accept that he most probably did not foresee the loss of fisheries habitat and the like. 40. However, the extent of loss to the fisheries habitat is .03 of one percent of the overall fish habitat in the creek. That is not to trivialise it, as I have said earlier, but it is to put it objectively into its proper perspective. It was even as Mr Parker admitted "minor". 41. In all the circumstances, I have come to the conclusion that the offence ought to be regarded as a serious offence, although of course I accept that in carrying out a relatively small scale reclamation, 70m2 of surface area plus the batter and toe, in a large creek front by utilising clean fill and gabion rocks is not to pollute with toxic materials and the like and is to that extent something which ordinarily may not connote in peoples' minds an act of pollution. Nonetheless by statute it is "pollution" and the Court would not want to be seen to condone persons taking self help action for whatever reason, in undertaking reclamations of waterways such as has here been undertaken. 42. In all the circumstances, I consider that a fine of $15,000 is the appropriate fine to impose upon the Defendant Wain and that a fine of $5,000 ought to be imposed upon the Defendant Company. In my judgment, such fines appropriately recognise the objective gravity of the offence, and the respective personal culpabilities of the offenders. 43. For all of the foregoing reasons, I make the following orders: 1. In proceedings 50116 of 1998, the Defendant Barry Wain is convicted of the offence as charged and a fine of $15,000 is imposed in respect of the conviction, such fine to be paid to the Byron Shire Council pursuant to s.694 of the Local Government Act 1993 within three months of today's date. 2. The Defendant is to pay the Prosecutor's costs in the amount determined in accordance with s.52(2) of the Land and Environment Court Act 1979. 3. I defer making an order pursuant to s.14 of the Environmental Offences and Penalties Act 1989 of the type contemplated by Exhibit H and invite the parties to bring in short minutes of such an order within 21 days which I will adopt as the order, if it is presented to me by consent or alternatively, will formulate my own order after hearing from the parties if they wish to be heard on that matter. 4. The exhibits may be returned except for Exhibit H and Exhibit 5. 5. In proceedings No 50119 of 1998 the Defendant Company is convicted of the offence as charged. 6. A fine of $5,000 is imposed in respect of that conviction, such fine to be paid to the Byron Shire Council pursuant to s.694 of the Local Government Act 1993 within three months of today's date. 7. I order the Defendant to pay the Prosecutor's costs in the sum determined in accordance with s.52(2) of the Land and Environment Court Act 1979. 8. I defer making an order pursuant to s.14 of the Environmental Offences and Penalties Act 1989 in similar terms to the order referred to in Order 3. 9. The exhibits to be returned. 10. Liberty to restore by direct contact with my Associate. --------------OoO-------------- I HEREBY CERTIFY THAT THIS AND THE PRECEDING 19 PAGES ARE A TRUE AND ACCURATE COPY OF THE REASONS FOR JUDGMENT HEREIN OF HIS HONOUR MR JUSTICE N R BIGNOLD. Associate 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.