Environment Protection Authority v Byron Shire Council [2003] NSWLEC 207

> Land and Environment Court of New South Wales

CITATION : Environment Protection Authority v Byron Shire Council [2003] NSWLEC 207 PROSECUTOR Environment Protection Authority PARTIES : DEFENDANT Byron Shire Council FILE NUMBER(S) : 50145; 50146 of 2001 CORAM: Talbot J KEY ISSUES: Prosecution :- penalty in lieu of capacity to comply with order to carry out work under s 250 of the Protection of the Environment Operations Act 1997 - order to publish advertisement in specified newspapers LEGISLATION CITED: Protection of the Environment Operations Act 1997 s 250, s 251 CASES CITED: DATES OF HEARING: 20/08/2003 EX TEMPORE JUDGMENT DATE : 08/20/2003

PROSECUTOR Mr T G Howard (Barrister) SOLICITORS Environment Protection Authority LEGAL REPRESENTATIVES: DEFENDANT Mr S M Berveling (Barrister) SOLICITORS Abbott Tout

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 50145 of 2001 50146 of 2001

Talbot J

20 August 2003 Environment Protection Authority Prosecutor v Byron Shire Council Defendant Judgment

Introduction 1 HIS HONOUR: I have set out my findings in relation to this matter in the judgment published on 31 July 2002 (Environment Protection Authority v Byron Shire Council [2003] NSWLEC 128, unreported). The matter was stood over following conviction of the defendant in matter No. 50145 of 2001 and matter No. 50146 of 2001. 2 To enable the assessment of the prospect of making an order pursuant to s 250 of the Protection of the Environment Operations Act ("the PEO Act"), as it then stood and presumably still stands, I am now advised that Byron Shire Council ("the council") having carried out the obligations referred to in [20] of the judgment insofar as items 4(a) and 4(b) thereof are concerned, has now concluded that there is not a realistic prospect of carrying out option B, namely the removal of Mullumbimby Creek weir at an estimated cost of $30,000 within a time frame that can be regarded as reasonable. 3 I have been informed by Mr Berveling, appearing for the council, that as a consequence of carrying out the consultation and investigation process it has become apparent that although the removal of the weir structure is in itself a matter that can be achieved in a practical sense there is a serious concern that the consequence of removal of the weir would be to deprive the Mullumbimby Golf Club of the opportunity to continue drawing water from Yanki Creek for the purpose of maintaining its greens and fairways. 4 The council recognises that outcome as an unacceptable price to pay and in the circumstances has advised the Court that it is not now prepared to consent to the making of an order for the removal of the weir pursuant to s 250. Mr Howard, who appears for the prosecutor, no longer presses for such an order to be made and expressly approves of the decision by the council not to proceed with the works for the reasons explained by Mr Berveling. 5 On the last occasion the Court expressed the view that, having regard to the cost of removing the weir as then estimated, the proposed expenditure indicated a monetary sum commensurate with the range of penalty that would be appropriate in the circumstances of the offences for which the defendant has been convicted. Mr Howard although not expressly accepting that was the position nevertheless acquiesced in the Court's preference for a recommendation that the council proceed with option B and to carry out its investigations accordingly. 6 I am not sure that the outcome in this case necessarily shows that the legislative scheme proposed through s 250 is unworkable. Indeed, the Court can foresee that there will be circumstances when it is appropriate, practicable and convenient for the provisions of that section to be implemented as part of the process of dealing with a conviction for an offence under the PEO Act. However, the process that has been undertaken in this particular case confirms the apprehension that the Court indicated on the last occasion that care needs to be taken in the making of such an order to ensure that all of the practicalities, financial implications and legal requirements for the carrying out of a project are properly understood and investigated before such an order is made. Technically, if the order had been made on the last occasion the council could be now exposed to a further penalty for an offence pursuant to s 251 of the PEO Act or alternatively, at the discretion of the prosecutor, perhaps the offences for which the council had been convicted may have in effect gone unpunished as a consequence of the inability to comply with the orders. 7 There is no provision in the PEO Act which facilitates the capacity for the matter to be referred back to the Court for re-assessment in the event of there being an impediment to the compliance with the order made pursuant to s 250 if that order is made unconditional and implementation becomes impossible. 8 The Court may, in certain circumstances, perhaps deal with that issue by reserving liberty to apply. I do not, however, find that to be the appropriate course today because I can foresee that in itself may create problems in the sense that a defendant having been dealt with finally by the Court in relation to a criminal prosecution effectively may find itself re-appearing for re-conviction. They are all matters that may arise on a future occasion and can fall for consideration then if the legislation remains in its present form. 9 I have asked both parties to address me in respect of the quantum of penalty in the light of the indication given to the Court on the last occasion that option B, at a cost of $30,000, appeared to be within the range of the penalty that would otherwise be imposed. The prosecutor, quite properly in my view, offered no further submission in regard to penalty and leaves the matter entirely at the discretion of the Court without further assistance in that regard. 10 Mr Berveling, again quite properly, indicates that although expressing regret that the orders proposed cannot now be made and implemented there is nothing that he can put on behalf of his client that would persuade the Court that the appropriate range for a penalty in respect of both offences is properly represented by the understood cost of removing the weir, namely $30,000. 11 Both of the offences are related not only in time but in relation to the events which occurred. The malfunction at the water treatment plant was an ongoing malfunction which took some time to first of all identify and secondly, to detect and remedy. I am satisfied that the penalty for the two offences should be assessed on the basis of the overall criminality in accordance with the principle of totality. I assess that sum at $30,000, after taking into account the matters that have been raised in mitigation and which I have expressly referred to in the earlier reasons for my judgment, including the co-operation of the defendant and the early plea of guilty. I am also mindful of the fact that the council will be responsible for the costs of the prosecutor in the proceedings.