Land and Environment Court of New South Wales CITATION : Environment Protection Authority v Forestry Commission of New South Wales [2004] NSWLEC 751 revised - 4/03/2005 PROSECUTOR Environment Protection Authority PARTIES : DEFENDANT Forestry Commission of New South Wales FILE NUMBER(S) : 50050 of 2004 CORAM: Cowdroy J KEY ISSUES: Prosecution :- Environmental Offence - pollution of waterways - plea of guilty - penalty. Crimes Act 1900 s 556A Crimes (Sentencing Procedure) Act 1999 s 22(1)(a) LEGISLATION CITED: Forestry Act 1916 The Forestry and National Park Estate Act 1998 Protection of the Environment Operations Act 1997 s 120(1)(2), s 123(a), s 241(1)(a), s 241(1)(b), s 241(1)(c), s 241(1)(d), s 241 (1)(e) Axer Pty Limited v Environmental Protection Authority (1993) 113 LGERA 357; Cabonne Shire Council v Environmental Protection Authority (2001) 115 LGERA 304; CASES CITED: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; R v Oliver (1980) 7 A Crim R 174; R v Thomson; R v Houlton (2000) 49 NSWLR 383 DATES OF HEARING: 06/12/2004 EX TEMPORE 12/06/2004 JUDGMENT DATE : PROSECUTOR Mr G J Plath (Solicitor) SOLICITORS Mr Stephen Garrett Department of Environment and Conservation LEGAL REPRESENTATIVES: DEFENDANT Mr G Bartley (Barrister) SOLICITORS Mr D Giles Forestry Commission of New South Wales JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Cowdroy J 6 December 2004 50050 of 2004 ENVIRONMENT PROTECTION AUTHORITY Prosecutor FORESTRY COMMISSION OF NEW SOUTH WALES Defendant Judgment Introduction 1 Cowdroy J: The defendant pleads guilty to the charge that between 26 May 2003 and 29 May 2003 at Chichester State Forest in the State of New South Wales it polluted waters and thereby committed an offence against s 120(1) of the Protection of the Environment Operations Act 1997 ("the Act"). 2 Section 120 of the Act provides:- Prohibition of pollution of waters (1) A person who pollutes any waters is guilty of an offence; (2) In this section: "pollute" waters includes cause or permit any waters to be polluted. 3 Section 123, which is contained in Part 5.3 of the Act, relevantly provides:- Section 123 Maximum penalty for water pollution offences. A person who is guilty of an offence under this part is liable on conviction: (a) in the case of a corporation to a penalty not exceeding $250,000 … 4 The summons alleges that the pollutants referred to comprise soil, earth, mud, stones and/or similar inorganic matter from parts of an unnamed dirt road known as 107/2 Trail ("the Trail"). The waters are identified as an unnamed watercourse in Chichester State Forest which flows to the Allyn River and downstream thereof ("the waters"). 5 The manner of the breach is particularised as the constructing and/or causing the construction of a dirt road in such a manner that parts of it collapsed as a result of which pollutants entered the waters. 6 An Agreed Statement of Facts ("the Facts") contains all of the facts upon which the prosecutor relies. 7 The Chichester State Forest is located 38 kilometres north-west of Dungog. The Forestry and National Park Estate Act 1998 provides a system of integrated government agency approvals for forestry operations. On 1 January 2000 the Integrated Forestry Operations Approval (IFOA) commenced in the lower north-east forest region. Such area includes compartment 107 of Chichester State Forest. The IFOA for the lower north-east forest region contains, inter alia, the provisions of the Environmental Protection Licence 3957 ("the licence") issued by the prosecutor to the State Forests of New South Wales. 8 The Facts establish that the defendant is constituted under the Forestry Act 1916 and that harvesting operations in compartment 107 commenced on 4 March 2003. The operations covered by the licence included the construction of two roads, one of which was the Trail. The Trail crossed two gullies or crossings (crossing H and L), one upstream of the other, each of which lead to the Allyn River. 9 On 27-28 May 2003, a rain event occurred. The recurrence interval for a rain even of that size is a period of less than one in one year. It was accordingly not heavy enough to cause the collapse of a properly constructed road. Road crossings should be able to wholly withstand a one in five year rain event and even to withstand a one in ten year rain event. 10 The Court has been provided with comprehensive photographs and a video which show the extent of the failure of the road and the resultant collapse of the batter and surface of the road. It is estimated that 600 cubic metres of fill, consisting of earth, rocks and soil, collapsed downwards into the crossings. 11 Prior to the construction of the Trail, which commenced on 10 February 2003, State Forests had consulted its Forest Engineering Services division ("Engineering Services"), which undertook design of roadways. The licence requires that an engineering design be prepared when the ground slope of the proposed road exceeds 30 degrees. The slope of the Trail exceeded 30 degrees. 12 The roadway was designed by Engineering Services and details were provided to State Forests' Hunter Office, where it appears that the design was modified to reduce the road's width and to reduce the amount of spoil to be disposed of. Those alterations were made without the approval of Engineering Services. State Forests' Hunter Office also modified the design in the vicinity of crossing L. Such alteration was again made without the approval of Engineering Services. 13 Clause 29 of Schedule 5 of the licence requires that all new and existing roads on ground slopes in excess of 30 degrees to be constructed in accordance with the engineering design developed in accordance with conditions 27 and 28 of the Schedule. In fact the crossings at both H and L were not so constructed. 14 Various defects have been identified with the design which was implemented by State Forests without the approval of Engineering Services. For example, infall drainage was not provided uniformly and all batter was insufficiently compacted. The cause of the failure at crossings H and L on the Trail resulted from the inflow of water into the insufficiently compacted sub-surface and into the face of the fill batters. In consequence the soil became saturated and mass movement occurred. 15 In addition, inappropriate construction equipment was used to create the Trail. Instead of using a roller for compaction, the batters were compacted with track machinery, namely a bulldozer and excavator, which provided insufficient compaction. Further, an ineffective and non-standard method was used in the compaction of the batters. An attempt was made to create that compaction by pounding them with an excavator bucket. Lastly, the batter material fill was inappropriate. It comprised a mix of boulders and trees. It should have been comprised of soil particles of an even size to assist compaction. 16 Quality assurance procedures were not implemented to ensure that the road was constructed in accordance with accepted procedures and guidelines. Accordingly the failure resulted from inadequate site planning, poor construction techniques and methodologies and unsuitable equipment. Environmental Harm 17 The photos and videos demonstrate graphically the effect of a collapse at crossings H and L on the Trail. Paragraph 47 of the Facts details the harm that has occurred, as follows:- Macrointervertebrate sampling showed that this drainage line, has a rich aquatic fauna including unusual species and those which are vulnerable to sedimentation. Visual assessment of the drainage line below crossing "L" indicated that numerous aquatic habitats had been directly harmed as a result of smothering by the deposition of soil and earth material. It is likely that aquatic organisms inhabiting these habitats would also have been harmed. However, in areas sampled for macrointervertebrates in the length of the drainage line where aquatic habitats had not been directly smothered, there was no evidence that aquatic organisms had been harmed. 18 Paragraph 48 of the Facts provides:- The finer portion of the soil and earth material introduced to the drainage line such as the silts and clays would have been transported further down the drainage line and into the Allyn River. At the time of the incident, this would have raised the turbidity and suspended sediment concentrations of the water in the drainage line and in the Allyn River and may have further impacted aquatic organisms there. 19 The Facts conclude:- As the sand and coarser materials remaining in the drainage line are remobilised in subsequent rainfall events and transported downstream towards the Allyn River, other aquatic habitats will be harmed. However, these impacts will decrease over time. If appropriate remediation measures are implemented for the existing road constructions works, then subsequent sediment input into the system should be avoided. Prior Offences 20 In August 1993 the defendant was prosecuted for an environmental offence, namely pollution of waters. On that occasion, no conviction was recorded but instead the benefit of s 556A of the Crimes Act 1900 was granted. Further proceedings were taken against the defendant in July 1997. The defendant pleaded guilty to that charge. In May 1998 five proceedings were instituted against the defendant for environmental offences which were heard together. The defendant was again convicted of those offences. Remediation 21 The Facts acknowledge that the defendant has participated in the remediation of the site at crossings H and L. The Trail has been repaired and the defendant has agreed to prepare a long term remediation plan. In September 2004 a final remediation plan prepared by the defendant was approved by the prosecutor. 22 The defendant relies upon an affidavit sworn by Michael John Bullen who is an officer of the defendant. Since 1 November 2004, Mr Bullen has been the director of the Native Forest Operations Branch. From March 2003 to October 2004 he was the acting General Manager of the Forestry Policy and Resources Branch. 23 Mr Bullen's affidavit describes the substantial undertaking of the defendant. It establishes that the defendant in 2003 harvested timber over 28,000 hectares of State forests within three regions along coastal New South Wales. There are some 24,000 kilometres of roads under the defendant's management and control within State forests in coastal New South Wales and in the Hunter region there are 3,341 kilometres. In the past five years 54 kilometres of roads have been constructed. Less than 300 metres of those have been on slopes exceeding 30 degrees. 24 The defendant has spent and will spend a total of $206,000 in the rectification of the roadway which will be closed for a period of three years. As a result of the deficiencies that became apparent with the failure of the Trail at crossings H and L, staff who had been in charge have either left the defendant's employ or been re-assigned to other duties. All staff engaged in road planning and construction of the region have been trained in road design and construction standards. 25 Workshops are conducted by the defendant for its employees entitled "Roading Workshops". Refresher courses are now held and, in addition, manuals such as the Roadworks Systems Manual and Technical Guidance Notes have been compiled. Monitoring of road construction is undertaken and a manual entitled "Monitoring and Measuring Compliance of Operations" is now available. Sentencing Considerations 26 The Court is required to consider the requirements of s 241 of the Act when imposing penalty. Pursuant to s 241(1)(a) of the Act, the Court is required to consider the extent of the harm caused, or likely to be caused, to the environment by the commission of the offence. In this event there has been actual harm proved and there is likely to be further harm occasioned as a result of the introduction of the material into the drainage systems. 27 Section 241(1)(b) of the Act requires the Court to consider the practical measures that may have been taken to prevent, control, abate or mitigate that harm. It is apparent that the defendant had total control of the operations and that measures were available to abate or mitigate the harm, if not entirely to prevent it. 28 Pursuant to s 241(1)(c), the Court is required to consider the extent to which the person who committed the offence could reasonably have foreseen the harm caused, or likely to be caused, to the environment by the commission of the offence. The Court concludes that the failure of the roadway clearly would have caused pollution and in consequence the Court concludes that the harm was foreseeable. 29 Pursuant to s 241(1)(d), the Court is required to consider the extent to which the person who committed the offence had control over the causes that gave rise to the offence. Since the defendant was the entity which was charged with the construction of the road, and was in fact carrying out its construction, it had total control over those operations. 30 The Court is required to consider whether the offence was committed as a result of orders from an employer or supervising employee pursuant to s 241(1)(e) of the Act. That paragraph is inapplicable to the circumstances in this case. 31 The Court is also required to consider the provisions of the Crimes (Sentencing Procedure) Act 1999. Section 22(1)(a) requires the Court to take into account the fact that the offender has pleaded guilty. A guilty plea, because of its utilitarian value, is to be taken into consideration: see R v Thomson; R v Houlton (2000) 49 NSWLR 383. In this instance the plea of guilty was made at the earliest stage and the defendant has totally co-operated with the prosecutor both in relation to its investigations and in relation to the remediation. The Court also notes that it was the defendant which reported the incident to the prosecutor and that the failure was reported promptly. 32 The Court takes into consideration the fact that the damage is being remediated, that the defendant has agreed to pay the costs to the prosecutor and that the defendant has introduced new systems which are designed and intended to avoid the failures which occurred. Those measures include new training provisions and new systems to ensure that roadworks of this nature are properly assessed by persons having the requisite competence before the work is undertaken. 33 The Court is also required to consider whether there is need for the penalty to reflect deterrence as was considered in Axer Pty Limited v Environmental Protection Authority (1993) 113 LGERA 357 at 359 and in Camilleri's Stock Feeds Pty Limited v Environmental Protection Authority (1993) 32 NSWLR 683 at 701. 34 The Court is satisfied that an element for general and specific deterrence is warranted in view of two matters. Firstly, there have been prior convictions of the defendant for environmental offences as detailed above. Secondly, the nature of the undertaking of the defendant requires a high degree of care in the fulfilment of its operations. For this reason there is a need for specific deterrence to remind those in authority of a need to observe maximum safeguards for the environment. 35 The Court has been referred by the defendant's counsel to numerous authorities relating to penalty such as Cabonne Shire Council v Environmental Protection Authority (2001) 115 LGERA 304. The Court acknowledges that authorities cannot necessarily provide any strict guideline when assessing penalty. However, a pattern of sentencing may exist which might be of assistance. 36 In R v Oliver (1980) 7 A Crim R 174 at 177, the following is stated:- 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 evenhandedness in the manner 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. 37 The Court is conscious that the defendant is a statutory body. However when considering penalty that fact should make no difference compared to any other private organisation or individual. 38 Taking into account all of the matters which have been referred to above, the Court considers that a penalty in the low to mid range is required. The Court considers that the appropriate penalty is a sum of $40,000. That sum will be reduced because of the plea of guilty, the co-operation demonstrated by the defendant, its promptness in reporting the event and its responsibility in implementing measures to minimise the risk of a further occurrence. The reduction will be made to the sum of $30,000. Orders 39 Accordingly, the Court makes the following orders: 1. The defendant is convicted with the offence as charged. 2. The defendant is fined a penalty in the sum of $30,000. 3. The defendant is to pay the prosecutor's costs as agreed or assessed. 4. The exhibits 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.