Environment Protection Authority v Yolarno Pty Limited [2004] NSWLEC 765

Land and Environment Court of New South Wales

CITATION : Environment Protection Authority v Yolarno Pty Limited [2004] NSWLEC 765 PROSECUTOR: Enviornment Protection Authority PARTIES : DEFENDANT: Yolarno Pty Limited FILE NUMBER(S) : 50108-112 of 2003 CORAM: Bignold J KEY ISSUES: Environmental Offences :- Penalty-Order pursuant to s 250(1)(c) in lieu of imposition of fine of $30 000 LEGISLATION CITED: Protection of the Environment Operations Act 1997, s 250(1)(c) CASES CITED: DATES OF HEARING: 16/08/2004 EX TEMPORE 08/16/2004 JUDGMENT DATE :

PROSECUTOR: Mr S Mahoney, Solicitor SOLICITORS Environment Protection Authority LEGAL REPRESENTATIVES: DEFENDANT: Dr N Brunton, Solicitors SOLICITORS Henry Davis York

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

BIGNOLD J

16 August 2004

50108-50112 of 2003 ENVIRONMENT PROTECTION AUTHORITY v YOLARNO PTY LIMITED

JUDGMENT HIS HONOUR: 1 On 7 July 2004 I delivered extempore reasons for judgment in these matters and ordered that the Defendant be convicted of the offence in each case as charged. By order 2, the question of penalty was reserved with liberty to restore on three days' notice in the event of a further order contemplated by Order 3 being made. Order 3 granted liberty for the Defendant to apply within 28 days for the making of an order pursuant to the Protection of the Environment Operations Act 1997, s 230(1)(c) in lieu of the imposition of any fine in respect of the conviction. 2 In my extempore reasons for judgment I had indicated that if the penalty were to be by way of fine, a fine in the order of $30,000 had been considered the appropriate fine. I also granted liberty for the Prosecutor to apply within the same period for a publication order made pursuant to s 250(1)(b) of the same Act and ordered the Defendant pay the Prosecutor's costs in the sum agreed or otherwise in accordance with the relevant provisions of the Criminal Procedure Act. 3 The matter initially came back to me as a result of the Defendant exercising the liberty to apply for an order under s 250(1)(c) of the Act. When the matter came before me on the last occasion, pursuant to the exercise of that liberty, the parties were not in agreement as to the precise project to be the subject of the relevant order, and it was in those circumstances that the proceedings were further adjourned to give the parties an opportunity to liaise with one another and negotiate with a view to reaching an agreement on the approved project. Today the matter has been returned to me and the parties have informed me that they have reached agreement upon the particular project being the project for the rehabilitation of a section of Ploughmans Creek in the city of Orange, and the Defendant has asked me to make orders appropriately. Those orders, it should be noted, accord with the orders in draft form handed up by the Prosecutor on the last occasion. 4 A minor difference has emerged between the parties today when the Prosecuting solicitor has suggested some refinement to the orders as originally propounded. In particular, she has expressed concern on behalf of the Prosecutor that the introduction or inclusion in the orders of the monetary value of the Defendant's liability to the project, namely $30,000, is apt to create some difficulties. In particular, it has been suggested that the nomination of the amount of $30,000 has the capacity to attenuate or in some fashion undermine the obligation to carry out the rehabilitation works. Those works are detailed in attachment B to the draft orders submitted to the Court and specify with some precision the nature of the task, the quantities in terms of area of weed control and the like, and the quantities of new plantings. 5 The attachment also includes a column showing the rates for the respective components of the task and a costing estimate, the total cost being nominated at $30,000. I am informed by the parties' representatives today that that costing has been undertaken by the Orange Council, which is desirous of seeing the restoration works or rehabilitation works in Ploughmans Creek carried out as part of its own independent long term project for renewal of the environment of Ploughmans Creek. 6 In my opinion, the inclusion of the cost factor in the orders is appropriate in the circumstances of this case, notwithstanding what has been put to me by Prosecuting Solicitor. The intent is that the works have been estimated and costed, as reliably as one would expect in a project of this nature, and I am told by the Defendant's Solicitor that it is proposed, following the disposal of these proceedings, that the Defendant enter into contractual arrangements with the Council for the undertaking of the works as specified in Attachment B. 7 In terms of the contractual arrangements, the contract will provide for total liability on behalf of the Defendant in the sum of $30,000. That amount may of course be exceeded in the actual carrying out of the work (which is not required to be completed until the end of next year in any event). It seems to me that in the event of the works exceeding the cost of $30,000 that that excess will be covered by the contractual arrangements. 8 We are here focussing upon a future contingency of over expenditure on a project which is not scheduled to be completed until the end of next year, and it cannot be anticipated that any excess is likely to be significant and, more importantly, that any excess will lead to the non-completion of the works. 9 Prosecuting Solicitor submitted that the order made by the Court pursuant to the statutory power should focus (and necessarily focus) upon the nature of the task in the environmental enhancement works. That is no doubt true, but where those works have cost components which can be costed (as the Attachment B indicates has occurred in this case) it would be unrealistic to put aside the question of cost. 10 In the circumstances, and notwithstanding what has been put by Prosecuting Solicitor, who has rightly pointed out that orders in the nature of environmental restoration project obligations are evolving and are still at a reasonably early stage of the development, nonetheless I am satisfied that the orders that the Defendant seeks to be made in this case, which do as I say reflect the position of the Prosecutor a few weeks ago when the orders were handed up in draft form, are the appropriate orders to make in this case. 11 It is appropriate that the statutory source of power for making the order, that is, the Protection of the Environment Operations Act, s 250(1)(c) be expressly included in Order 2. Subject to that amendment, the orders that I propose to make are those set forth in the form of orders handed up by the Defendant's Solicitor. Those orders go on to provide for the disposal of the other pending proceedings in which, as a result of the pleas of guilty to the three present charges, the Prosecutor offered no evidence and agreed that those other proceedings be dismissed. That is provided for in Order 1. The order also includes the anticipated publication order be made pursuant to s 250(1)(b) of the same Act. That is provided for in Order 7. Order 8 specifies the sum of costs for which the Defendant is to pay the Prosecutor's costs in the sum of $45,000. That order, which I also shall make, replaces Order 5 as made on 7 July this year. Order 9, of course, is no longer relevant and that order is not made. 12 For the foregoing reasons I make Orders 1 to 8 in the form submitted by the Defendant in this case, noting that Order 2 is prefaced by the words "pursuant to s 250(1)(c) of the Protection of the Environment Operations Act 1997 the obligation is cast." Those Orders are as follows (including copies of Attachments "A", "B" and "C " referred to therein): 1. Proceedings 50108 and 50109 of 2003 are dismissed. 2. Pursuant to s 250(1)(c) of the Protection of the Environment Operations Act 1997, the defendant shall carry out an environmental restoration project ("the project") along Ploughman's Creek, between Glendale Crescent and the Northern Distributor (currently under completion), Orange. The project is to be carried out along the bed and banks of Ploughman's Creek between the locations marked "X" and "Y" on the map attached hereto and marked "A". 3. In carrying out the project, the defendant shall ensure the completion of each of the works specified in the list attached hereto and marked "B". 4. The defendant shall ensure the project is completed before 31 December 2005. 5. The defendant shall spend an amount of $30,000 on the project. The defendant shall provide verification of the amount spent on the project to the prosecutor within 14 days of the completion of the project. 6. The defendant shall advise the Court and the prosecutor in writing of the completion of the project within 14 days of its completion or otherwise have the matter re-listed before the Court on three days notice. 7. The defendant shall ensure the publication of the notice attached hereto and marked "C" within 14 days of the date of this order. The notice shall be published in the Central West Daily as a ¼ page notice on page. 3. 8. That the defendant pay the Prosecutor's costs of $45,000.