Shoalhaven City Council v DP Druce P/L [2005] NSWLEC 123

Land and Environment Court of New South Wales

CITATION : Shoalhaven City Council v DP Druce P/L [2005] NSWLEC 123

PROSECUTOR: Shoalhaven City Council

PARTIES : DEFENDANT: DP Druce Pty Limited

FILE NUMBER(S) : 50048 of 2004

CORAM: Bignold J

Environmental Offences :- polluting waters-failure of sediment control works on a major development site-mitigating factors justifying reduction in penalty of 40 percent KEY ISSUES:

LEGISLATION CITED: Protection of the Environment Operations Act 1997, s 120(1)

DATES OF HEARING: 17/02/2005 EX TEMPORE JUDGMENT DATE : 02/17/2005

PROSECUTOR: Mr S Duggan, Barrister SOLICITORS Morton and Harris LEGAL REPRESENTATIVES:

DEFENDANT: Ms A Pearman, Barrister SOLICITORS Marriott Oliver

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

BIGNOLD J

17 FEBRUARY 2005

50048 OF 2004 SHOALHAVEN CITY COUNCIL V DP DRUCE PTY LIMITED

JUDGMENT CORAM: HIS HONOUR 1 The Defendant has pleaded guilty to a charge of an offence committed on 22 May 2003 at Erowal Bay in the St Georges Basin in that it did pollute waters contrary to of the Protection of the Environment Operations Act 1997, s 120(1). That section creates an offence of polluting waters, subs (1) providing that a person must not pollute waters, subs (2) and (3) deal with the related offence of causing pollution or permitting pollution. 2 The Act contains a very wide definition of the terms "waters" and "pollute" and "pollution" covering a wide spectrum of physical phenomena. In the present case, as the particulars of the Summons disclose, the pollutant, or the relevant act of pollution, was allowing or causing sediment-laden waters to leave a construction site upon which the Defendant was engaged in earthmoving contractual works so that they entered adjacent wetlands identified in State Environment Planning Policy No 14—Coastal Wetland (SEPP14) being identified by the number 323, and thereafter made their way into the adjacent waters of Erowal Bay. 3 The circumstances of the commission of the admitted offence are comprehensively set forth in the Statement Of Agreed Facts (Exhibit 1). Those facts reveal that the Defendant Company had entered into a contractual agreement with the owner of a site fronting Walter Hood Parade, Worrowing Heights, being a site containing an area of some 38 hectares to carry out certain construction works, including earth works, sediment control works, storm water drainage works which included the construction of water quality control ponds. 4 The Defendant commenced those contractual works towards the end of August 2002 and was engaged at the site thereafter up until the date of the offence which was committed on 22 May 2003 and no doubt thereafter, because at the time of the offence, the Defendant was still engaged in those earth works and related works. 5 The subject land comprised the development site which had the benefit of a development consent granted by the Shoalhaven City Council for the establishment of an extensive retirement village, comprising up to 300 residential units. The consent had been granted in stages and the Defendant was engaged in the earth and civil works on the whole of the site at the time that Stage 1 works were also underway for the initial construction of the earliest residential component of the approved development. 6 The southern portion of the development site contains a number of natural watercourses and slopes steeply from the road level which approximates the northern boundary down to the south where its boundary is contiguous with the SEPP14 wetlands and close to the northern foreshores of Erowal Bay. 7 Part of the contract works being undertaken by the Defendant at the relevant time involved the creation of water control ponds known as ponds 2A and 2B located near the southern boundary of the development site which had been, according to the specifications, prepared by consulting engineers Patterson Britton. Overland flow from the stormwater and runoff in this particular catchment of the overall development site was designed and directed to enter those particular water quality control ponds which form part of the overall scheme for the sedimentation and erosion control devices and engineering system to cater for overland flow and stormwater runoff. The overall scheme for water control was being undertaken in stages, including of course pre-construction stages, for the approved retirement village. 8 As it happened in the months of April and May 2003 prior to and at the time the admitted offence was committed, there had been experienced above average rainfall at the location. The Statement of Agreed Facts in pars 17 through to 29 describe under the heading "Significant events immediately preceding the pollution event". They indicate that by 6 May 2003 the Defendant had only partially constructed the two water control ponds (2A and 2B). But they nonetheless were liable to be filled with sediment-laden water simply by dint of their existence and location at the lowest part of the site and this might occur before they were fully completed in accordance with the Patterson Britton design specification. 9 Paragraph 18 of the Statement of Agreed Facts explains why by that date the two water quality control ponds (2A and 2B) had not been completed in accordance with the specification, and the contents of that paragraph indicate that the causes included the fact that the decision had been taken to redesign the overland flow swales, which of course formed an integral part of the stormwater overland flow control system. Higher than average rainfall events contributed to the delay in the overall construction program, including work on these two ponds. Work had been undertaken in contemplation of the redesign of pond 2B and the Defendant had been given instructions by the owner of the site (the other contracting party) to give greater priority to other aspects of site works. 10 By 6 May sediment-laden waters had found their way into both ponds 2A and 2B and for two or three days thereafter, the Defendant, conscious of the likely imminent danger of failure of the pond walls because the ponds were holding volumes of water greater than the engineering capacity of the ponds as partially constructed to maintain them, took action to pump out the contents of the ponds and siphon out their contents and direct the waters on to adjoining lands with the benefit of sediment control devices in place. This action, I infer, was remedial action designed to save the collapse of the ponds in their partially completed state whilst they were filled with water collected on the site. As it turned out, on 8 May a Council officer directed the Defendant to stop this activity. No reason is given for the direction but I infer that the officer was concerned at the deposit upon neighbouring lands which would necessarily have included the wetlands of the contents of the ponds. At the time, the site was extensively the subject of earth works and there were extensive areas of bare earth without vegetation up slope, including a large number of stock piles, again located up slope of the ponds which were not protected by silt control fences. 11 At the same time that the Council officer directed the Defendant to stop its activity of relieving pressure from the ponds in the manner that I have described, he directed the Defendant to take action in relation to protecting the site and the stockpiled materials (i) by creating silt control fences up the slope from the ponds; (ii) to immediately seed the bare earth so that revegetation might occur; and (iii) to install more silt control fences between ponds 2A and 2B and the southern boundary of the land which as I have indicated is coincident with the existence of the SEPP14 lands. The Defendant was also directed to clean up the existing silt and sediment control fixtures on the land. 12 The Statement Of Agreed Facts in par 27 goes on to recite that by 19 May, some 11 days after the directions by the Council officer had been given, the situation on the site was that no silt control fences had been placed around the soil stock piles up slope the ponds, nor had they been installed at 10 and 15 metres intervals up slope, nor had the earth been seeded. Nor had control fences been installed between the ponds and the southern boundary of the land, although some silt control fences had been installed in the vicinity of the ponds and although attempts had been made to clean up the existing sedimentation controls, the attempt had proven insufficient to prevent the dispersal of sediment-laden water on to the adjoining land. 13 Other physical features are noted in pars 28 and 29 but I need not recite them here. In any event, on 22 May 2003 the southern wall in pond 2A failed, the failure having been caused by the development of a large hole 500 millimetres in diameter being formed below the existing water level. The hole, or the failure in the wall occurred, because of the water pressure being exerted on the upper part of the pond wall which had not been designed or built to hold that volume of water. Both ponds 2A and 2B failed because they had become over-filled with stormwater runoff which was heavily laden with sediment. 14 Paragraph 33 of the Agreed Statement of Facts indicates by way of explanation that the ponds had become over-filled because the construction of them had not been completed in accordance with the design specification before stormwater filled the ponds. In particular, the designed overflow structure allowing for the transfer of flow from pond 2A to 2B had not been constructed. 15 Paragraph 34 records that the circumstance of the waters being heavily laden with sediment had been occasioned by virtue of the fact that not all of the temporary sediment and erosion control measures required by the conditions of development consent were in place. 16 Paragraph 35 states: When the wall of pond 2A was breached a large amount of sediment and sediment-laden water flowed under relatively high pressure into the SEPP wetlands and then throughout the bushland area located to the south. It spread throughout the bushland and SEPP14 wetland contiguous with the southern boundary of the land. In the wetland and bushlands area the sediment laden water ponded. Some settling of fine silt and clay material occurred in the bed of the wetland and to the east of the development site the coffee coloured sediment-laden water flowed into the waters of Erowal Bay causing a plume of coffee coloured water. 17 The Defendant immediately on its own initiative took remedial action to plug the hole that had developed in the wall of pond 2A and constructed the spillway between ponds 2A and 2B and lowered the spillway in pond 2B. Action was taken to insert a pipe in the area of the overflow of pond 2B to operate as a gravity line to prevent water running over the sediment which had spilled out. The Defendant also installed additional silt fences in the area of the failed ponds and in the wetland areas closer to the bay. 18 Following the pollution incident, the Council issued a clean-up notice on the owner of the property who in turn commissioned an ecologist to advise. The Defendant itself carried out much of the remedial work which had been recommended by the ecologist and this work was carried out at its own expense. The details of the works so carried out in compliance with the clean-up notice and the recommendations of the consultant ecologist are set forth in par 40 of the Agreed Statement of Facts. 19 Paragraph 41 states: There is no evidence of any permanent environmental damage as a result of the pollution incident. However it is accepted that absent the works undertaken to clean up the pollution environmental harm could have occurred. 20 I am asked to take that second sentence as also referring to the works volunteered by the Defendant upon it becoming aware of the failure of the pond wall and the subsequent discharge of the sediment-laden waters over adjacent lands. 21 The sole Director of the Defendant company has worked in the earthmoving industry in the area (ie the Shoalhaven area) for approximately 32 years. The Defendant has expressed remorse and contrition about this pollution incident. 22 The competing submissions that have been made to me helpfully by Counsel representing respectively the Prosecutor and the Defendant have canvassed comprehensively the nature of the particular offence and the culpability of the Defendant in its commission and have addressed the attendant circumstances with considerable attention. It has been suggested to me in the competing submissions that there exists in the case both aggravating and mitigating circumstances. In relation to aggravating circumstances my attention has been drawn to the record of the Defendant company and Exhibit 3 contains a brief analysis of antecedent offences. It is confined to recent years and involves four instances of penalty infringement notices and one conviction by the Nowra Local Court. Two of the four penalty infringement notices relate to the same incident involving the Defendant's contractual works undertaken at a site in Anderson Street, Sanctuary Point. The first penalty infringement notice was in respect of conduct of the Defendant on 23 June 2000 involving the removal of trees from a road reserve being a public place and said to constitute an offence under of the Local Government Act 1993, s 629(2). 23 The second and third penalty infringement notices relate to the same incident which occurred on 22 February 2001 for an offence against Protection of the Environment Operations Act, s 120 (the same as the offence charged in the present case) relating to inadequate and defective sediment and erosion control measures put in place at the development site in Anderson Street, Sanctuary Point and the related penalty infringement notice relates to a related offence of failing to comply with a clean-up notice issued pursuant to Protection of the Environment Operations Act, s 91. 24 The last of the penalty infringement notices is in respect of an offence against Environmental Planning and Assessment Act, s 125 for conduct committed on 10 December 2001 involving the carrying out of unauthorised earthworks on the site of the Bomaderry Anglican School. The only conviction was recorded by the Nowra Local Court on 18 December 2002 and the offence for which the Defendant entered a plea of guilty was in respect of Environmental Planning and Assessment Act, s 125 involving the unauthorised clearing of an area of 10 acres on a parcel of land at Sussex Inlet comprising some 18 acres. On that occasion, the Defendant was convicted and fined $1000. 25 The Crime Sentencing Procedure Act 1999, Section 21A(2) at par (d) stipulates as a relevant aggravating factor a record of previous convictions by the Defendant. 26 The parties Counsel's submissions took different views of the events that I have earlier recorded, being the events immediately preceding the pollution event. 27 Prosecuting Counsel have relied upon the contents of pars 17 through 29 to indicate that those matters were aggravating circumstances. Defence Counsel submitted to the contrary. My own assessment of the facts there recorded satisfies me that the events there recorded explain in part how the particular pollution incident was caused some days later on 22 May. I do not think it is correct to label them as aggravating circumstances. They are more part of the train of circumstances which gave rise to the commission of the offence. They explain how it was that the water control ponds 2A and 2B came to be filled with sediment-laden waters flowing down the site in times of higher than average rainfall, at a time when they had not been completed, but there is no suggestion in the facts that the Defendant deliberately directed waters to the partially completed ponds and there is no suggestion but for the fact that they were not completed before they were filled with water, as to what the Defendant may have done to preclude that phenomenon from happening. What they do reveal, of course, is that the sedimentation control devices required on the site were not effective to prevent considerable sediment to be collected in runoff and although the Defendant was fully cognisant of the risk of the partially completed ponds failing by dint of the collection therein of considerable volumes of runoff with heavy sedimentation levels and was taking remedial action that involved depositing the contents of the ponds on adjacent lands. No doubt it was this last mentioned fact which prompted the Council officer to insist upon the formation of that self help remedy. 28 In all of the circumstances, the facts helpfully collected in the Statement of Agreed Facts, weigh up in my mind as outlining an offence which must be regarded as coming within the moderately serious part of the spectrum of overall gravity of offences covered by the offence created by Protection of the Environment Operations Act, s 120. 29 As the competing submissions have helpfully pointed out, the conduct constituting an offence against s 120 potentially is very wide and various in all of its manifestations both as to what it is and who commits it (and in this respect, I refer to the passage from the judgment of Hulme J in the Court of Criminal Appeal in Environment Protection Authority v Middle Harbour Constructions (2002) 119 LGERA 440 at 450 pars 57 and 58). I would respectfully adopt what his Honour there says, which is to similar effect to the observations that fell from the presiding judge, Beazley JA at par 8 and following of her judgment. 30 Within the extremely wide disparate spectrum of conduct and activity that may constitute an offence of polluting waters, the present case as I say, should fairly and reasonably be regarded as moderately serious. This is because as the facts reveal, the development site was extremely extensive in its scale of the earthworks and civil works being undertaken by the Defendant for a project which contemplated ultimately a retirement village with 300 residential units, located in a sensitive environment involving adjoining wetlands area and the waters of St George's Basin. I infer from the facts that the contract work being undertaken by the Defendant was a major earthworks civil works contract for a major project in that particular part of the Shoalhaven City and it is trite to say that major earthworks activities conducted on environmentally sensitive sites or sites geographically proximate to environmentally sensitive lands have of course the capacity of creating significant pollution events for those sensitive environments. 31 It is of course true that the definition of "pollution" under the Act covers a wide spectrum of matters and here the pollutant is relevantly sediment-laden rainwater—certainly not the most environmentally offensive phenomenon, but nonetheless one that can have a deleterious environmental effect on sensitive lands and sensitive waters. 32 Having established that the facts of the present case justify an opinion and a judgment that the relevant admitted offence should be regarded as moderately serious in its objective qualities, the Defendant's culpability likewise should be so evaluated. That is, as a very experienced earthworks contractor, the Defendant must be taken to have been alive to the difficulties that might be encountered on no doubt a sensitive site and major development project. The fact that rainfall fell in the area for the month preceding the offence and in the month that the offence was committed, at higher than average levels was something which an earth contractor charged with the superintendence and undertaking of sediment control works should be well aware of, and would be concerned to ensure that it would not involve untoward environmental consequences. 33 All in all my evaluation of the objective facts of the offence, its nature, the Defendant's culpability in it, would lead me to the conclusion that a fine in the order of $50,000 would be the appropriate fine to impose. However, that amount should be reduced in deference to the mitigating factors that have been relied upon in the present case. Those mitigating factors include the very good record in the industry that the Defendant, especially through its sole Director, enjoys (a fact attested by the character references that have been produced which attest to an impressive recognition in the local community—both in community life and in the industry—of the sole Director of the Defendant Company). Additionally, as I have noted, the Defendant acted responsibly after the event (ie after the pollution event was set in train by taking the initiative in remedial action and in complying with the statutory clean-up Notice served on the land owner) and he is also to be given the benefit of a plea of guilty at the earliest opportunity. 34 All up, I would consider that the mitigating factors justify a reduction of the penalty that otherwise would be called for in the present case, to the extent of 40 percent, thereby reducing the penalty to be imposed to $30,000. In imposing that penalty, I also have taken into account the Defendant's preparedness to pay the not inconsiderable amount of legal costs of the Prosecutor in the sum of $40,000. However, for the reasons given, a reduced penalty of $30,000 is in my judgment called for in the present case for all of the reasons that I have given. 35 Accordingly, I make the following orders: 1. The Defendant is convicted of the offences charged. 2. A penalty of $30,000 is imposed in respect of the conviction. 3. The Defendant is ordered to pay the costs of the Prosecutor in the agreed sum of $40,000. 4. The exhibits should remain with the Court papers.