Reported Decision : (2000) 111 LGERA 365 Land and Environment Court of New South Wales CITATION : Environment Protection Authority v Cabonne Shire Council [2000] NSWLEC 272 PROSECUTOR Environment Protection Authority PARTIES : DEFENDANT Cabonne Shire Council FILE NUMBER(S) : 50047 of 2000 CORAM: Cowdroy J KEY ISSUES: Prosecution :- dumping of raw sewerage from septic pump - offence deliberate - plea of guilty - penalty LEGISLATION CITED: Clean Waters Act 1970 s 16(1) Protection of the Environment Operations Act 1997 s 120 Axer Pty Limited v Environment Protection Authority (unreported 22 November 1993 NSWCA) ; Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 ; CASES CITED: Majury v Sunbeam Corporation Limited (1974) 1 NSWLR 659; R v Thomson and R v Coulton [2000] NSW CCA 309 ; R v Winchester (1992) 58 A Crim Reports 345 ; Veen v R (2) (1988) 164 CLR 465 DATES OF HEARING: 30/11/00 EX TEMPORE 11/30/2000 JUDGMENT DATE : PROSECUTOR Mr R Kelly (Solicitor) SOLICITORS Environment Protection Authority LEGAL REPRESENTATIVES: DEFENDANT Mr A Bradbury (Solicitor) SOLICITORS Minter Ellison JUDGMENT: IN THE LAND AND MATTER No. 50047 of 2000 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 30/11/00 Environment Protection Authority Prosecutor v Cabonne Shire Council Defendant JUDGMENT 1. By summons class 5 filed on 16 August 2000 the prosecutor alleges that the defendant, Cabonne Shire Council ("the council"), committed an offence against s 120(1) of the Protection of the Environment Operations Act 1997 ("the PEO Act") in that it polluted waters on or about 1 September 1999 at Cargo landfill. The proceedings are not contested and the council has entered a plea of guilty to which it adheres. The facts 2. The salient facts are set out in an agreed statement. The council operates a landfill located off Main Road 237 at Cargo ("the Cargo landfill"). The landfill off Main Road 237 had no provision for receipt of septic waste disposal. As at 1 September 1999 the defendant had three landfill sites with septic disposal pits. Those pits were located at Canowindra, Eugowra and Manildra. 3. The council had delegated the task of clearing septic tanks to a Mr Greg Whiley who had been an employee of the defendant for 27 years. For the past 26 years his employment duties included the responsibility for cemetery maintenance and the pumping out of septic tanks. He is the only employee who pumped out septic tanks for the defendant. 4. Due to the size of the Cabonne Shire, which covers some 6,017 square kilometres, Mr Whiley was given a substantial amount of autonomy in the carrying out of his duties. Mr Whiley undertook his duties by pre-booked commitments. Residents who wished to have septic tanks pumped out would contact council and tasks would be allocated to Mr Whiley. Mr Whiley attended a workshop relating to the operation of the PEO Act held on 10 August 2000. Mr Whiley's performance appraisal stated he was a responsible and reliable employee who would benefit from more contact with his supervisor. 5. On 1 September 1999 Mr Whiley was booked for several jobs which would have taken him approximately nine hours to complete. On that morning he attended the workshop and then drove the council's septic pump out truck ("the truck") to Cargo. He met the first customer, a Mr Dudley Frecklington, who was his cousin. Thereafter Mr Frecklington accompanied Mr Whiley to Mr Darren Frecklington's residence. Mr Darren Frecklington is Mr Frecklington's son. The septic tank at that residence was pumped out and the quantity of effluent filled the truck. Mr Whiley with Mr Frecklington then drove the truck to the Cargo landfill at about 10am. The truck was backed to the rear of the Cargo landfill which comprised a pit used for rubbish disposal. The contents of the truck's tank comprising raw sewerage was then emptied onto the ground. It flowed down the embankment and into a water course. 6. Shortly thereafter Mr Whiley drove to Mr Frecklington's shop. Mr Whiley pumped out the septic tank at that shop and then again proceeded to the Cargo landfill where the contents of the truck were emptied in the same manner as previously. Later that morning Mr Whiley and Mr Frecklington drove to Mr Frecklington's residence where the septic tank at that place was also pumped out. When that task was completed an adjoining neighbour who apparently had made no booking, namely Mr Max Sargent, requested his septic tank be also pumped out. That was undertaken and the truck again returned to the Cargo landfill where the raw sewerage was emptied. It is estimated that between 10am and 2pm on 1 September 1999 approximately 13,500 litres of raw sewerage was disposed of at the Cargo landfill. 7. Subsequently Mr Whiley drove to other sites where he deposited waste in the appropriate septic pits such as the one at Manildra. 8. Due to an anonymous complaint to councillor Mr Robert Stewart the council's director of environmental services attended the Cargo landfill at about 3.05 pm on 1 September 1999. He observed the raw sewerage and took prompt steps to stop it moving further down the water course. Mr Stewart arranged for a truck and employees to attend the site at about 5.20 pm on that day and action was taken to ensure that the spillage was contained. Hydrated lime was spread over the water and septic waste. Straw bales were also placed in the water course. The clean up continued on ensuing days. 9. Mr Stewart on the morning of 2 September 1999 contacted Mr Mark Clyne an environment protection officer employed by Environment Protection Authority ("the prosecutor") to report the incident. Mr Clyne attended the Cargo landfill on 3 September 1999 with Mr Stewart and observed the spill and also the measures that had been taken to prevent the raw sewerage travelling down the water course. Inquiries were undertaken by the prosecutor. The council and its officers have co-operated from the outset with the prosecution in establishing the facts surrounding the discharge of the sewerage. 10. Samples were taken at the site and were provided for laboratory analysis by Ms Stephanie Wallace an environment protection officer. She has provided affidavit evidence in which she has referred to the chemical oxygen demand and the scientific effect which the raw sewerage had on the water course. Ms Wallace concluded as follows:- The disposal of 13,500 litres of septage at the Cargo landfill on 1 September 1999 resulted in contaminated effluent entering and progressing down a dry water course. The samples taken indicate that the effluent was highly contaminated with the up stream sampling site (five to ten metres from the landfill) meeting the characteristic parameter ranges of raw septage and the down stream sampling site (120 metres down the gully) typical of septic waste water. The environmental effects of this pollutant discharge include the potential to contaminate further water courses down stream and thus possibly a potential threat to fresh water quality and aquatic eco systems. The high levels of COD and nutrients could have damaging effects on aquatic life in the receiving waters and the nutrients could encourage the growth of nuisance algae and macrophytes. High concentrations of suspended solids have the potential to reduce biological activity, cause possible mortality of aquatic organisms and lead to a decrease in the aesthetic value of the water body. The principal immediate environmental effect of such a discharge was the threat of serious harm to livestock through pollutant contamination of livestock water supply. 11. Mr Whiley was interviewed. He was a reliable employee of the council and there is no evidence that there had been any prior incident of this kind. A factual dispute exists concerning Mr Whiley's instructions that he could only deposit septic waste at the disposal pits at Canowindra, Eugowra and Manildra. Mr Whiley says that he did not receive written instructions and that he understood the preferred dump for such waste was at the disposal pits at those sites but that it was not mandatory. Council evidence establishes that instructions were given orally some years ago to Mr Whiley that only these three sites were to be so utilised. The Court concludes that Mr Whiley was aware of the requirement that septic waste was to be deposited in the authorised places. 12. For the defendant a report has been prepared by Mr Martin Haege a director of Terra Consulting (NSW) Pty Limited. Mr Haege has qualifications in environmental engineering science. He has considered the evidence of Ms Wallace and her opinion concerning the effects of the discharge. In response Mr Haege states:- In considering the extent of the harm caused or likely to be caused to the environment it is my opinion that there was no actual or lasting harm to the environment as a result of the effluent discharge. I base this on the fact that council's containment and neutralising measures were effective in stopping the movement of discharge and reducing the pathogen risk. The EPA testing indicates that the contaminant levels in the down stream coffer dam were significantly lower than the up stream samples. This shows the pollutants were trapped at the up stream end of the council's measures. The septic tank wastes are organic and can be assimilated in the environment without harm. The volume of discharge was relatively small and our previous investigations which included soil sampling along the gully three months after the incident did not show any measurable lasting impact from the discharge. He continued:- On the basis that I consider that there was no actual or lasting harm to the environment the critical question is the extent of potential harm to the environment as a result of the discharge. Mr Haege concluded:- I consider that the samples collected by the EPA show the containment and neutralising measures employed by Cabonne Council were effective in mitigating any harm. The effluent discharge was contained to 100 metre section of dry gully and the effluent which did reach the coffer dam was significantly less polluted compared to the up stream sample. After consideration of EPA sampling results and our previous investigations it is considered that the extent of harm caused to the environment as a result of the effluent discharge was not significant. Penalty 13. The council has raised numerous matters in mitigation of penalty. They include the circumstance surrounding the service of Mr Whiley; that he was responsible and reliable; that he had been delegated autonomy; that he acted contrary to directions, that it was a "one off" incident. The council also points to the fact that it has co-operated at all times and has been responsive once the incident came to its attention. All those matters are clearly relevant matters for consideration in the assessment of penalty. 14. Section 120(1) of the PEO Act provides:- A person must not pollute any waters. The definition of waters includes the placing of any such matter on the dry bed of any waters or in any drain, channel or gutter used or designed to receive or pass rain water, flood water or any water that is not polluted. 15. There are similarities with the facts in Majury v Sunbeam Corporation Limited (1974) 1 NSWLR 659 where the Chief Judge at Common Law, Justice McClemens considered an offence pursuant to s 16(1) of the Clean Waters Act 1970. His Honour said at 664:- I turn now to the question of penalty. I have made it plain that in my opinion I would be unjustified in finding negligence against the defendant. The defendant has also shown a commendable degree of concern and co-operation with public authorities in minimising the effects of this accident. 16. The same observation may be made in this case. His Honour continued:- Nevertheless it is a serious matter. The public interest requires that the polluting of waters be prohibited and if caused by a defendant to the extent that pollution was caused here, even if purely accidentally and without negligence, in my opinion it requires one to look at the matter seriously but to impose a penalty which as far as one can does justice between the prosecution and the defendant. 17. There have been numerous authorities to guide the Court in fixing the appropriate penalty. The maximum penalty for this offence is a fine of $250,000. In Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 the New South Wales Court of Appeal considered the matters which are to be taken into consideration in the assessment of penalty, such as whether there has been a plea of guilty, whether there has been co-operation with the prosecution once the offence was known to have occurred and whether the offences were unforeseen, non negligent and an unintended accident (see Kirby P at 699-700). 18. In this case the Court can conclude that the events of 1 September 1999 were not the result of an accident. Mr Whiley's actions were deliberate. They were repeated on three occasions. In Axer Pty Limited v Environment Protection Authority (unreported 22 November 1993 NSWCA) Mahoney JA observed that business must be arranged so as to ensure that pollution offences will not occur. Whilst such principle does not necessarily have automatic application the Court must take into consideration the circumstances in each case. 19. Mr Whiley's conduct appears to have been utterly out of character there is no evidence that prior to 1 September 1999 he was ever instructed or otherwise educated so that the seriousness of environmental penalties and offences were made known to him. Mr Whiley was given a 'free rein' which has led undoubtedly to these offences for which the defendant must bear the ultimate responsibility. 20. The plea of guilty is to be taken into consideration as is the commendable conduct of the defendant following the incident of 1 September 1999. That consideration has been referred to recently by the Court of Criminal Appeal in R v Thomson and R v Coulton [2000] NSW CCA 309 and also in R v Winchester (1992) 58 A Crim Reports 345 at 350. Further the council has not been charged with any similar offence and the antecedent history can be taken into consideration: see Veen v R ( 2) (1988) 164 CLR 465 at 477. 21. Taking all these matters into consideration the Court finds that the discharge of raw sewerage into an unauthorised place warrants a penalty which reflects the gravity of the offence. Also taken into consideration is the fact that the offence was committed intentionally. 22. In these circumstances the Court but for the plea of guilty would have imposed a fine of $100,000. The plea of guilty and the defendant's co-operation merits mitigation of up to 25 percent. The Court does not consider that the penalty should be in the lower end of the mid range as is urged by the defendant or in the low range. The appropriate penalty, making allowance of 25 percent for the plea of guilty, is $75,000, which represents approximately 30% of the maximum fine. The parties have agreed as to the amount of costs. Orders 23. The Court therefore makes the following orders:- 1. The defendant is convicted of the offence as charged and fined $75,000. 2. The defendant is ordered to pay the costs of the prosecutor in the sum of $7,000 within four weeks of today. 3. The exhibit 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.