Environment Protection Authority v Graham [2003] NSWLEC 408

> Land and Environment Court of New South Wales

CITATION : Environment Protection Authority v Graham [2003] NSWLEC 408 PROSECUTOR Environment Protection Authority PARTIES : DEFENDANT Kenneth Martin Graham

FILE NUMBER(S) : 50016 of 2003 CORAM: Talbot J KEY ISSUES: Prosecution :- failure to comply with prevention notice - offence proved - plea of guilty - penalty LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 10 Protection of the Environment Operations Act 1997 s 95, s 96, s 96(2), s 241 CASES CITED: Oberon Council v Australian Game Meats Limited [2002] NSWLEC 96, unreported DATES OF HEARING: 01/10/2003 EX TEMPORE JUDGMENT DATE : 10/01/2003

PROSECUTOR Ms J M Moore (Solicitor) SOLICITORS Environment Protection Authority LEGAL REPRESENTATIVES: DEFENDANT Mr A J J Thompson (Barrister) SOLICITORS Aubrey Brown Partners

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 50016 of 2003

Talbot J

1 October 2003 Environment Protection Authority Prosecutor v Kenneth Martin Graham Defendant Judgment

Introduction 1 HIS HONOUR: The defendant is charged that he committed an offence against s 97 of the Protection of the Environment Operations Act 1997 ("the PEO Act") in that on 14 March 2002 he had by that date failed to comply with a prevention notice issued to him pursuant to s 96 of the PEO Act. 2 That section, pursuant to s 96(2) in particular, allows the prosecutor, by notice in writing, to direct an occupier of premises to take action as is specified in the notice and within the period that is specified in the notice to ensure that the activity is carried out in future in an environmentally satisfactory manner. 3 The meaning of "environmentally unsatisfactory manner" is set out in s 95 of the PEO Act. The activity that is the subject of the complaint appears to be the rehabilitation of the site, following the introduction of waste to what essentially is part of an old quarry. 4 The Environment Protection Authority ("the EPA") issued a prevention notice on 12 February 2002 ("the notice"). The notice required the defendant to carry out a number of things. The issue that is the subject of complaint in the proceedings is the failure to, within 30 days of the issue of the notice, submit a plan of management for the rehabilitation of the premises to the EPA. There were seven matters listed in the notice that needed to be addressed. 5 The defendant, it must be said, was initially dilatory in responding to the notice. Even when he eventually managed to instruct somebody to address the issue it was by then at least a month after the compliance date. It became apparent to the defendant at that time that the proposal put forward by the consultant that he engaged was significantly beyond his means. For that reason the consultant appears to have elected not to continue with the project and decided to reject any further instructions, even if they were forthcoming. 6 The matter then appears to have laboured under a lack of direct address until these proceedings were either threatened or placed on foot. It was not until 29 September 2003 that the defendant ultimately provided a plan of management prepared by a civil engineer engaged for that purpose, the document that is now before the Court, to the EPA. Understandably, the EPA has not had the opportunity to fully appreciate, understand and comment upon the contents of the plan of management submitted on behalf of the defendant on Monday of this week. However, it is clearly a document which addresses the issues, even if in some respects it does not deal with the details that the EPA was hoping it would. Nevertheless it is properly conceded, as I apprehended by the EPA through Ms Moore, who appears on behalf of the EPA, that it does substantially comply. There are some issues about whether or not it deals with both blocks of land that are the subject of the original notice but they are matters that can be resolved when there has been an opportunity to consider the plan in a measured way. 7 The history of the use of this property for the purpose which gives rise to the issue of the notice goes back to the early 1980's when it appears that the road authority, as it then was, took material from the site and used it as a quarry and that other contractors associated with works involved in the Pacific Highway and the Freeway also used the site for the purposes of recovering road base for use in road works.