Land and Environment Court of New South Wales CITATION : Environment Protection Authority v Robinson [2004] NSWLEC 629 PROSECUTOR: Environment Protection Authority PARTIES : DEFENDANT: Allan William Robinson FILE NUMBER(S) : 50023 of 2004 CORAM: Lloyd J KEY ISSUES: Environmental Offences :- land unlawfully used as waste facility - guilty plea - relevant considerations in imposing penalty Crimes (Sentencing Procedure) Act 1999 s 3A, s 10 Criminal Procedure Act 1986 s 253 Fines Act 1996 s 6 LEGISLATION CITED: Protection of the Environment Operations Act 1997 s 3, s 144, s 241, Sch 1 Water Management Act 2000 s 256 Environmental Guidelines: Solid Waste Landfills (Environment Protection Authority 1996) Technical App 8 Maitland Local Environmental Plan cll 10, 44 Maitland City Council Hunter River Floodplain Management Development Control Plan Axer Pty Ltd v Environmental Protection Authority (1993) 113 LGERA 357; Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 61; Fletcher Constructions Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66; Hannah v Wonah Pty Ltd (1992) 34 AILR 333; Inspector Petar Ankucic v William George Young [2004] NSWIRComm 184; CASES CITED: Latoudis v Casey (1990) 170 CLR 534; Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1990) 90 IR 464; R v Oliver (1980) 7 A Crim R 174; R v Rushby [1977] 1 NSWLR 594; R v Thomson; R v Houlton (2000) 49 NSWLR 383; R v Visconti (1982) 2 NSWLR 104; Walden v Hensler (1987) 163 CLR 561; WorkCover Authority of New South Wales (Inspector Kelsey) v University of Sydney [1977] NSWIRComm 44 DATES OF HEARING: 08/11/2004 DATE OF JUDGMENT: 11/12/2004 PROSECUTOR: Mr D Galpin (barrister) SOLICITORS: Stephen Garrett LEGAL REPRESENTATIVES: DEFENDANT: Mr D P M O'Dowd (barrister) SOLICITORS: Turnbull Hill Lawyers JUDGMENT: - 13 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Lloyd J Friday, 12 November 2004 LEC No. 50023 of 2004 ENVIRONMENT PROTECTION AUTHORITY v ALLAN WILLIAM ROBINSON [2004] NSWLEC 629 JUDGMENT Introduction 1 The defendant, Mr Allan William Robinson, pleads guilty to an offence that between about 1 January 2001 and 30 June 2001 at or near Phoenix Park, New South Wales, he committed an offence against s 144(1) of the Protection of the Environment Operations Act 1997 ("the POEO Act"). Section 144(1) of that Act states: A person who is the owner or occupier of any land that cannot be used as a waste facility and who permits the land to be used as a waste facility is guilty of an offence. 2 The Dictionary to the POEO Act defines "waste facility" as follows: waste facility means any premises used for the storage, treatment, reprocessing, sorting or disposal of waste (except as provided by the regulations). 3 "Waste" is defined in the Dictionary as including "any discarded, rejected, unwanted, surplus or abandoned substance", among other things. 4 The question for determination is the appropriate penalty for the offence. The maximum penalty is $120,000 in the case of an individual. Background 5 At the relevant time, the defendant owned and occupied land at 150 Hinton Park Road, Phoenix Park, New South Wales ("the property"). The property is approximately 28 acres in area and is located on the banks of the Paterson River, which is a tributary of the Hunter River. The property is low lying and flood prone. There is a levee bank on the south-eastern boundary of the property adjacent to the Paterson River. 6 During the first few months of 2001, the defendant made enquiries as to where he could obtain fill material to construct a cattle mound on his property. The cattle mound was intended to provide an area of refuge for cattle owned by the defendant, during any future flood event. As a result of those enquiries, the defendant went to a property located at 174 and 175 High Street, Maitland where Steepleton Pty Limited ("Steepleton") was demolishing various buildings on the Blue Ribbon Coach premises. While at the Blue Ribbon premises the defendant informed Mr Peter Wallace, a contractor working for Steepleton, that his premises were approved for the dumping of demolition material. The defendant entered into an agreement with Mr Kenneth Pannowitz, the sole director, proprietor and manager of Steepleton. The defendant and Mr Pannowitz agreed for Steepleton to transport demolition material from the Blue Ribbon site to the property. The agreement did not involve any exchange of money. 7 Employees and contractors of Steepleton subsequently transported building and demolition material to the property from the Blue Ribbon site using trucks owned by Steepleton. That material included bricks, concrete, dirt, soil, steel, roof tiles, crushed timber and other matter. 8 In early 2001, the defendant had informed Mr Wallace, one of Steepleton's drivers, that he did not want asbestos or anything toxic transported to the property. On his first visit to the property, Mr Wallace noticed that there was already an existing mound of material in front of the shed located on the property. The existing mound consisted of dirt, parts of sheds, machinery, old fencing, scrap tin and scrap steel posts. Between one and three weeks after this date, Mr Pannowitz attended the site with a bobcat. On that occasion, and on three or four subsequent occasions, Mr Pannowitz used the bobcat to level out the pile of building and construction waste. 9 When the defendant first began receiving waste, a lock was placed on the front gate to the property and a key was placed on a nail at the bottom of the gate to give Steepleton's drivers access to the property. On several occasions the padlock was cut off or removed by unknown persons, and subsequently replaced by the defendant or Mr Craig Bishop whose evidence I later describe. Mr Pannowitz and Mr Jimmy Cea informed the defendant that someone other than Steepleton was dumping material at the property. The defendant also consented to receive material from persons other than Steepleton. They included septic workers who operated backhoes and excavators and deposited soil on the mound. 10 On 22 June 2001 the defendant received a letter from Maitland City Council ("the council") advising him to immediately cease dumping fill on the property. Consequently, the defendant ceased receiving waste at the property. 11 The defendant received a total of between 1310 and 1661 tonnes of material from Steepleton. The overall dumping of material on the property resulted in a mound, located behind a shed on the property and approximately 50 metres from the house. On 11 May 2001, the mound was 2.15 metres above the natural ground level at its highest point and was close to the levee bank, which is adjacent to the Paterson River. At that time, the mound consisted of large pieces of concrete, pieces of metal reinforcing mesh, scraps of metal roof sheeting, brick and rubble, soil, metal pipes, construction timbers, green waste including bales of hay and tree stumps, sections of concrete with floor or wall tiles still attached, masonry blocks with a dressed finish, and cloth and general household rubbish. By 18 June 2001, the mound was much higher and larger and situated up against the levee bank. At that time the mound had been levelled out by a mechanical device and vegetation, soil and hay bales had been added around part of the perimeter of the mound. A survey conducted on 19 July 2002, determined that the waste received by the defendant at the property was 2026 cubic metres in volume and 1539 square metres in area. At 20 September 2001, the mound was partially covered with soil and levelled on top to provide a flat surface. Approvals 12 The property is zoned 1(a) Prime Rural Land under the Maitland Local Environment Plan 1993 ("the Maitland LEP"). Within that zone, agriculture is permissible without consent under cl 10 of the Maitland LEP. Development for the purpose of a waste facility is prohibited within that zone. Even if the mound were characterised as ancillary to agriculture, cl 44 of the Maitland LEP requires development consent for alteration of the natural ground level of land by way of filling. At all material times, the defendant did not hold a development consent from the council to construct the cattle mound. 13 Schedule 1 to the POEO Act provides that an environment protection licence is required for a waste facility that is of landfill or application sites in environmentally sensitive activities being landfill or application sites that are located in an environmentally sensitive area described in Technical Appendix 8 of the Waste Guidelines. The Waste Guidelines describe a landfill site located in or within 40 metres from a permanent or intermittent waterbody as an environmentally sensitive area. The statement of agreed facts states that at all material times the mound was within 40 metres of the Paterson River, a river flowing in a natural channel with an established bed. The boundary of the mound was 26 metres from the high bank of the Paterson River at the closest point. The Waste Guidelines also state that a landfill site within a floodway that may be subject to washout and/or inundation during a major flood event is an environmentally sensitive area. A major flood event is defined as a 1:100 year event. The Maitland City Council Hunter River Floodplain Management Development Control Plan No. 29 shows that the mound was located within a floodway. That floodway is subject to washout or inundation during a 1 in 100 year flood event. At all material times, the defendant did not hold an environment protection licence. 14 The statement of agreed facts states that the defendant constructed the mound adjacent to the levee bank on the property. Section 256 of the Water Management Act 2000 provides that Ministerial consent is required for the construction of any structure in, or, or adjacent to, a levee bank. The defendant did not have such approval. The evidence Dr Barbara Baginska 15 Dr Baginska, a Senior Environmental Scientist employed by the prosecutor, inspected the property on 19 July 2002. In her affidavit, Dr Baginska observed that the mound was adjacent to, but on the inland side, of the levee bank. Although Dr Baginska stated in her affidavit evidence that an unnamed creek, a tributary of the Paterson River, was located approximately 100 metres north-east of the mound and was the lowest land in the vicinity of the mound, she corrected this in her oral evidence to state that the creek was about 300 metres from the mound. She also stated that on 19 July 2002 the waste pile was relatively uncompacted and prone to erosion during heavy rainfall. If waste and topsoil were eroded from the pile in heavy rainfall it would likely be washed towards lower ground and into the unnamed creek, which flows into the Paterson River. If this happened, the waste and soil could have adverse effects on aquatic vegetation and habitat. Dr Baginska also stated that it would also be likely to cause silting of the receiving channel, which can lead to smothering of aquatic vegetation and bottom-dwelling organisms and to a loss of suitable habitat or feeding grounds for aquatic organisms. Particulate matter suspended in the water could also decrease light penetration, limiting the growth of plant life. The suspension of solids in the water may also cause the water to become aesthetically unattractive. Dr Baginska also inspected the property on 6 November 2004 and stated that the mound no longer posed any potential risk of environmental harm due to the vegetation now covering the mound. She stated that, at present, it is unlikely that any waste would be transferred from the mound to the waterway. Mr Wayne Balcomb 16 Mr Balcomb, a self-employed scrap metal merchant, states in his affidavit that the defendant requested him to remove scrap metal from his property. Mr Balcomb states that he did not receive any money for the metal, nor did he charge the defendant to take it away. Over a three-day period, Mr Balcomb collected approximately three loads of scrap metal in his six tonne truck and two loads in his two tonne truck. The material included scrap metals, corrugated iron, old farm machinery implements such as hay racks, ploughs and various white goods such as stoves, refrigerators and beams. Mr Craig Bishop 17 Mr Bishop has known the defendant for 30 years and assisted him with work on the property. In his affidavit, Mr Bishop states that the defendant requested him to open the gate to the farm and show the truck drivers where to place the fill. Mr Bishop states that he did so and observed that for about two weeks the trucks dumped dirt on the property. After this, Mr Bishop acted on instructions from the defendant not to let anyone dump on the property by affixing a padlock to the front gate. The following day, Mr Bishop states that he observed that the padlock was broken, the front gate was open and that more fill had been dumped consisting of dirt, concrete fill, rubble and building waste. Mr Bishop states that the dumping continued for another two weeks despite instructing the drivers of the trucks that they could not dump on the property. Mr Allan William Robinson 18 In his affidavit, the defendant stated that he purchased the property in late 1999. In the previous year a flood had occurred on the property causing the defendant to lose seven of his stud Charolais Heifers, who were also in calf. The defendant stated that as a result of this event and his observations of other farms, he realised that he needed to build a cattle mound on his property. In late 2000 or early 2001, he made enquiries with Mr Grant Beattie of Public Works as to whether he could add to the existing fill on his property to build a yard for his cattle to keep them high in times of flood. The defendant states in his affidavit, that Mr Beattie responded: "As long as you don't put it up to the levy [sic] and don't put it over the levy [sic]. Just clean up the site and you'll be right." 19 In his oral evidence, the defendant admitted that he did not tell Mr Beattie that he was planning to receive demolition material. The defendant also spoke to the council and was instructed to contact the Flood Mitigation Board, which he understood to be the Public Works Department. The defendant states that he was unaware of any need to gain a licence or development consent for the construction of the cattle mound. 20 The defendant said that he did not pay anything for the material he received. He did, however, purchase a backhoe that he used to remove timber from the mound, which he subsequently burnt in bonfires on his property. The defendant stated that Mr Pannowitz would push and level the mound on a weekly basis, and also remove any steel from the pile, which the defendant then arranged for Mr Balcomb to collect at no charge. Later, the defendant added soil, manure and hay to the mound. 21 The defendant received a letter from the prosecutor in early June 2001. After speaking with Mr Mitchell Bennett, an employee of the prosecutor, he responded to the prosecutor's requests for information in writing and subsequently attended a meeting with the prosecutor in October 2001. The defendant stated that prior to that meeting, Mr Terry Muir, an employee of the prosecutor, told him, "Fill in what you have to fill in quickly, then put soil over the top of it…". The defendant subsequently arranged for five to six trucks and dog trailers of topsoil to be delivered to the property for use on the mound and for the bill to be sent to Mr Pannowitz. The defendant also said that he irrigated the mound to assist the growth of vegetation on it and also planted 180 trees on his property. In his oral evidence, the defendant accepted that his actions were wrong and expressed contrition for his conduct. He indicated that he has since sold the farm and no longer intends to be a farmer. Consideration 22 Section 241(1) of the POEO Act sets out the matters that the Court is to take into consideration in imposing a penalty for an offence under the Act. I shall consider each of these in turn. 23 The Court must consider the extent of harm caused or likely to be caused to the environment by the commission of the offence. Due to the vegetation now covering the mound there is currently no risk of actual or potential harm to the environment by way of erosion of the mound. However, the evidence of Dr Baginska shows that between 30 June 2001 and 19 July 2002 there was clearly a potential risk of harm. At that time the mound was in such a condition that in the event of heavy rainfall it was likely that the erosion of the material on the mound would harm the environment by entering the unnamed channel flowing into the Paterson River and damaging aquatic vegetation and organisms. This harm would also extend to visual harm by altering the aesthetic value of the river. 24 In imposing the penalty it is also relevant to consider whether any practical measures were taken to prevent, control, abate or mitigate that harm. The defendant did not take any specific steps to mitigate the harm until an EPA officer instructed him to cover the mound with topsoil. The defendant subsequently placed manure, hay and topsoil on the mound and irrigated it to assist the growth of vegetation on the mound. This action was a necessary step in the construction of the cattle mound in any event. Notably, during the dumping of landfill on the property the only measure taken to prevent the erosion of materials was the compaction of the mound using the backhoe. That action was insufficient to prevent the likely environmental harm that would occur in the event of heavy rainfall. 25 It is also necessary to consider the extent to which the defendant could have reasonably foreseen the harm that he caused or was likely to cause as a result of his conduct. The mound was constructed adjacent to the levee bank, contrary to the instructions of Mr Beattie at Public Works. Given the proximity of the mound to the levee bank, the unnamed channel and the Paterson River, the defendant could have reasonably foreseen the environmental harm that was likely to occur in heavy rainfall. This is particularly so, given that the defendant knew that the land was flood prone and that the mound was not covered with any vegetation or any other stabilising material. The foreseeability of risk is also relevant to assessing the culpability of the defendant and the seriousness of the offence: Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay)(2000) 49 NSWLR 610 at 646; Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng)(1990) 90 IR 464 at 476. 26 Another relevant factor for consideration is the extent to which the defendant had control over the causes that gave rise to the offence. The defendant was the owner of the property. He decided to construct the mound on the property and to receive demolition material in order to construct the mound. The defendant also determined the location in which the mound would be constructed. 27 The Court must also consider, where relevant, whether the defendant was complying with orders from an employer or supervising employee. That matter is not relevant in this instance as the defendant was acting independently in relation to the work conducted on his own property. 28 Section 241(2) of the POEO Act states that the Court may take into consideration other matters that it considers relevant. 29 The primary consideration in sentencing is the objective gravity or seriousness of the offence: Fletcher Constructions Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 77-81; Lawrenson Diecasting at 474. The actual or likely consequences of a breach may be taken into account in assessing the gravity of the offence: Hannah v Wonar Pty Ltd (1992) 34 AILR 333; WorkCover Authority of New South Wales (Inspector Kelsey) v University of Sydney [1977] NSWIRComm 44 at [10]. A number of factors highlight the seriousness of the offence in this instance. The quantity of waste received by the defendant consisted of 1300 to 1600 tonnes of waste, which is not an insignificant amount. This waste was received without the necessary approvals, with the exception of the defendant's conversation with Mr Beattie (with which the defendant failed to comply by constructing the mound adjacent to the levee bank). The defendant received demolition material, instead of other more appropriate material, to his financial advantage. Importantly, the defendant constructed the mound in an environmentally sensitive location, within 40 metres of the bank of a river in a flood prone area, where the risk of environmental harm was clearly foreseeable. The potential harm to the environment resulting from sedimentation included damage to aquatic vegetation and organisms. These factors highlight the seriousness of the offence. 30 General deterrence is also a major consideration in the imposition of penalties for environmental offences: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359; Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 701; Capral Aluminium. Therefore, a penalty for a breach must be sufficient to compel attention to the environmental issues to ensure that the defendant, and others, are encouraged to comply with the law and that the environment is not exposed to risk of harm. For strict liability offences, however, care must be taken to ensure that the penalty imposed does not cause the offender to shoulder an unfair burden of community education: Walden v Hensler (1987) 163 CLR 561 at 570. Section 144 of the POEO Act prohibits landowners and occupiers from permitting their land to be used as a waste facility where it cannot lawfully be used for that purpose. That provision reinforces the need for landowners and occupiers to gain approval for such a facility. The assessment process provides an important procedural step in the protection of the environment. The offence created under s 144 also serves the objectives of waste minimisation and waste avoidance: sub-ss 3(d)(iii) and 3(g) of the POEO Act. The penalty, therefore, should reflect the need to ensure future compliance with such objectives. 31 Specific deterrence aims to deter the offender from repeating the environmental offence that has been committed. The prosecutor concedes that there is no such risk in this instance. The defendant has sold the property and no longer wishes to be a farmer. He has also expressed his contrition concerning his actions and is now aware of the appropriate laws and approvals required. 32 The principle of even-handedness requires the Court to consider any pattern in sentencing for the particular offence in order to pursue a consistent approach in the imposition of penalties. Street CJ described this consideration in R v Visconti (1982) 2 NSWLR 104 at 107, where his Honour quoted a passage from his earlier judgment in R v Oliver (1980) 7 A Crim R 174 at 177: The second initial consideration is the ascertainment of the existence of the general pattern of sentencing by criminal courts for offences such as those under consideration. The task of the sentencing judge, no less than the task of an appellate court, is to pursue the ideal of even-handedness in the matter of sentencing. Full weight is to be given to the collective wisdom of other sentencing judges in interpreting and carrying into effect the policy of the legislature. That collective wisdom is manifested in the general pattern of sentences currently being passed in cases which can be recognised judicially as relevant to the case in hand. 33 In Axer, however, Badgery-Parker J acknowledged the difficulty in applying this principle (at 365): There is always a difficulty in attempting to compare the penalty in one case with the penalty in another because of the wide divergence of facts and circumstances; that task is difficult enough when one has the full text of all the relevant judgments and more difficult where the material is provided in this summary form. 34 Although there are previous cases where this Court has imposed a penalty for an offence under s 144 of the POEO Act, the facts in those cases differ significantly from the circumstances in these proceedings. The Court is thus not assisted by other cases in the application of the principle of even-handedness to the imposition of a penalty in this instance. 35 Several subjective and mitigating factors are also relevant in considering an appropriate penalty, but are secondary to the factors relating to the seriousness of the offence: R v Rushby [1977] 1 NSWLR 594 at 598; Fletcher Constructions at 77; Lawrenson Diecasting at 474-475. This is because the objective features of an offence relate to the facts concerning the offence, whereas the subjective features relate to the facts concerning the offender: Inspector Petar Ankucic v William George Young [2004] NSWIRComm 184 at [38]. The subjective factors relevant in this instance are that the defendant cooperated with the prosecutor, the defendant has no previous convictions under legislation administered by the prosecutor, the defendant has expressed contrition for his actions, and the defendant entered a plea of guilty early in the proceedings. No evidence was adduced of the defendant's financial means or character. 36 The defendant seeks an order under s 10 of the Crimes (Sentencing Procedure) Act 1999 dismissing the charge. Subsection (3) of that section provides that in determining whether such an order should be granted the Court is to have regard to: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) and any other matter that the Court thinks proper to consider. 37 The defendant adduced no evidence, however, relating to the first element. As stated in par [29], the offence is a serious one. The defendant constructed a mound using waste materials in an environmentally sensitive area, within 40 metres of a river in an area that was flood prone, and adjacent to a levee bank. In these circumstances, the offence cannot be described as trivial. Neither were there any extenuating circumstances in which the offence was committed. For these reasons the defendant is not entitled to an order dismissing the charge against him. Penalty 38 The Court is required to consider the means of the defendant in fixing the amount of the fine: Fines Act 1996 s 6. As noted above, no evidence was adduced of the defendant's means and no submission was made that the defendant would not be able to meet any appropriate fine. Accordingly, the offence being a serious one, the penalty should reflect the objective seriousness of the offence as the primary consideration. 39 The maximum penalty under the POEO Act for a breach of s 144 by an individual is $120,000. The purpose of imposing penalties is to ensure that the offender is adequately punished for the offence and for the prevention and deterrence of similar offences: Crimes (Sentencing Procedure) Act s 3A. Having regard to all the circumstances of this case and the factors considered above, I consider that an appropriate penalty is $12,000. This amount is to be discounted by 25% for the early plea of guilty: R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 419. I also allow a further discount of 10% taking into account all relevant matters. This results in a penalty of $8,100 rounded down to $8,000. The defendant opposes an order for costs. However, in applying the principles in Latoudis v Casey (1990) 170 CLR 534, it is appropriate that the defendant pay the prosecutor's costs. 40 The Court makes the following orders: (1) The defendant is convicted of the offence as charged; (2) The defendant is fined an amount of $8,000; (3) The defendant pay the prosecutor's costs in accordance with s 253(2) of the Criminal Procedure Act 1986; and (4) The exhibits may be returned. I hereby certify that the preceding 40 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd. Associate Dated: 12 November 2004 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. 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