Land and Environment Court of New South Wales CITATION : Oberon Council v Australian Game Meats Limited [2002] NSWLEC 96 PROSECUTOR Oberon Council PARTIES : DEFENDANT Australian Game Meats Pty Limited FILE NUMBER(S) : 50122 of 2001 CORAM: Talbot J KEY ISSUES: Prosecution :- plea of guilty - mitigation LEGISLATION CITED: Protection of the Environment Operations Act 1997 s 96, s 96(3)(i), s 99, s 100, s 241, s 241(1)(a), s 241(1)(b), s 241(1)(c), s 241(1)(d) CASES CITED: EPA v Alkem Drums [2000] NSWCCA 416, unreported; R v Thomson; R v Houlton (2000) 49 NSWLR 383 DATES OF HEARING: 13/05/2002 EX TEMPORE JUDGMENT DATE : 05/13/2002 PROSECUTOR Mr P R Clay SOLICITORS McIntosh McPhillmany & Co LEGAL REPRESENTATIVES: RESPONDENT Mr W H Andrews (Solicitor) SOLICITORS Cornwall Stodart Incorporating Marshall Marks Kennedy JUDGMENT: IN THE LAND AND Matter No. 50122 of 2001 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 13 May 2002 Oberon Council Applicant v Australian Game Meats Pty Limited Respondent REASONS FOR JUDGMENT 1. HIS HONOUR: The defendant company pleads guilty to the charge that it has failed to comply with a direction, dated 29 November 2000, served on the company on 8 December 2000, pursuant to s 96 of the Protection of the Environment Operations Act 1997 ("the PEO Act"). 2. Section 96 of the PEO Act applies when the appropriate regulatory authority, in this case the prosecuting council, reasonably suspects that an activity has been, or is being carried out in an environmentally unsatisfactory manner, at any premises, or by any person. 3. The premises the subject of these proceedings are situated in Hazelgrove Road, Oberon. According to an agreed statement of facts, the defendant conducts a game meats abattoir at those premises. 4. The premises were inspected on 3 October 1998 and certain unsatisfactory matters in terms of the control of waste were observed. As a consequence of the inspection an infringement notice was issued. Subsequently, a fine was paid to the council in respect thereof. 5. The specific details of the events and observations that led to the issue of the infringement notice are not relevant except to the extent that they go to the manner in which the activity of slaughtering and processing was being conducted on the premises at that time. 6. The premises were again inspected on 23 December 1998, and 16 August 2000, when again observations were made which related to the operations of slaughtering and processing of animals. No action was taken by the council immediately following those inspections until the subject notice was issued as a direction to take preventative action under s 96 of the Act. 7. The notice required and directed that the defendant take three specified actions. Firstly, it was required to prepare and submit to the council an environmental audit of all operations of the premises. The direction indicated the extent of the detail and information required, and specified that the environmental audit report be prepared and submitted to the council within 30 days of the date of the notice. 8. Secondly, the defendant was required to prepare and submit to the council a waste water design and management plan to address all aspects of on-site waste water management and disposal. The direction required that the plan be prepared and submitted to the council within 60 days of the date of the notice. 9. Finally, the defendant was required to prepare and submit to the council a waste management plan incorporating all aspects of waste management including Oberon's waste water problems. That plan was to be prepared and submitted to the council within 60 days of the date of the notice. 10. Pursuant to s 99 of the PEO Act a prevention notice does not operate until a period within which an appeal under the Act can be lodged. The time for compliance with the notice has been calculated taking into account the moratorium provided by s 99. In the case of the first direction it is 28 January 2001. In the case of the other two directions it is 1 March 2001. 11. At the time these proceedings were commenced by summons on 30 October 2001, none of the directions had been complied with. It is appropriate to note that the action required by the prevention notice falls within the category of examples described in s 96(3)(i) of the PEO Act. It refers to "preparing and carrying out a plan of action to control, prevent, or minimise pollution of waste". The notice did not require the carrying out of the plans referred to, but merely the preparation of the plans and the submission thereof to the council. 12. The evidence is that documents, described as the documents referred to in the prevention notice, were not lodged with the council until the last day before this hearing, which was effectively 10 May 2002, that is last Friday. It is not surprising that the council has not had an opportunity to examine and consider the documents. They have been tendered as evidence and hence are before the Court. 13. The Court has not been invited to examine the contents of the documents, but rather to note that they are the documents which are said to comply with the prevention notice, albeit out of time, and also to demonstrate that the material is such that the council obviously requires some time to examine it. 14. It is true that the evidence shows that in recent months, or perhaps more correctly recent weeks, that the defendant has shown a spirit of co-operation and consultation with council officers, directly and through its consultants, by discussing the preparation and lodgement of the material required by the notice. 15. It is acknowledged by the prosecutor that in the meantime there has been no cause for complaint of any actual pollution occurring as a consequence of the operation of the premises. It should be noted in this regard, however, that the evidence, such as it is, suggests there have been only 44 operating days in that period. 16. The submission that the prosecutor makes in terms of the consequence of the failure to comply with the direction is not that pollution has directly occurred, or that there is likely to have been direct harm to the environment as the consequence of any pollution event, but rather that the council has not been given the opportunity to be placed in the position where it can assess the current situation and decide what further measures may be required. 17. It may well transpire that no further measures are required and that the council is satisfied with the material that has been submitted to it, but in the meantime it has not had that capacity and, accordingly, the premises have continued to operate without the ability of the council to be satisfied that the environment is not unnecessarily endangered by the operations. 18. There is one other element to the offence and that is that a fee was required to be paid in relation to the issue of the notice, pursuant to the provisions of s 100 of the PEO Act. That amount in the sum of $100 was due for payment on 28 January 2001. It was not paid until 10 December 2001. 19. Originally, the prosecutor proceeded on the basis that the defendant was liable to a daily fine whilever the offence continued. However, the prosecutor has not pursued the recovery of a fine for a continuing offence, but rather a fine for the offence which occurred at the expiration of the time specified in the notice. 20. The concession made by the prosecutor in that respect is, in the Court's opinion, properly made in the light of the decision of the Court of Criminal Appeal in Environment Protection Authority v Alkem Drums [2000] NSWCCA 416, unreported. 21. Nevertheless, the Court agrees with Mr Clay who submits, on behalf of the prosecutor, in his own words, that "the delay has been for an awful long time, namely 14 to 15 months, and that there is no evidence by way of an explanation for that delay". The Court agrees with Mr Clay's submission that s 96 is an important weapon as a provision to ensure that an operation such as an abattoir is carried on in an environmentally satisfactory manner in the future in circumstances where that is not already the case. 22. In some respects it is difficult to apply the provisions of s 241 of the PEO Act to the circumstances of this case. Nevertheless, that section requires the Court, in imposing a penalty for an offence against the PEO Act, to take into consideration those matters so far as they are relevant. 23. Given that the plea of guilty entered by the defendant recognises that there was grounds for suspicion that the activity was being carried on in an environmentally unsatisfactory manner, the extent of the harm caused or likely to be caused by the commission of the offence indirectly might flow from the incapacity of the council to understand what steps were proposed, and to have some involvement in the establishment of processes to prevent harm across the whole spectrum of the company's operations. 24. The evidence does not disclose any harm other than the difficulty that the council has encountered, if any, as a consequence of the failure to comply. That harm, however, could not be said to be harm caused to the environment. Accordingly, it is only the likelihood of harm that needs to be taken into account pursuant to s 241(1)(a). 25. The evidence is that there is a by-product of the operations of an abattoir which might be encompassed to a very large extent by the description of kiff, which is described by the council's manager of development, Rafael John Tambasco, as a term used to describe the combination of blood, flesh, skin, hair and excrement, which are the waste products produced by abattoirs during the slaughtering and processing of livestock. It is appropriate, therefore, to recognise that the potential for harm to the environment as a consequence of this process is inherently real. 26. In regard to s 241(1)(b) as to the practical measures that may be taken to prevent, control, abate, or mitigate that harm, again it is the likely harm that is relevant in the context of the present proceedings. The notice is specifically directed to the practical measures that may be taken to prevent, control, abate, or mitigate the harm, whereas the direct practical measure was the lodgement of the reports. 27. It should have been obvious to the defendant that unless the reports were provided to the council, and the council given an ability to have regard to what measures were proposed by the plans and reports required, that harm could be caused to the environment in the meantime within the meaning of s 241(1)(c). 28. Insofar as s 241(1)(d) is concerned it is clear that the defendant had control over the preparation of the reports. 29. There have been two previous offences dealt with by infringement notices. There is a history of unsatisfactory conduct of the premises leading up to the issue of the notice in December 2000. 30. There has been a gross failure in terms of the time that has expired since the notice was issued with a specific time limit in it. However, it does not seem that the council has been concerned sufficiently to follow up on the failure except as reflected in the commencement of these proceedings in October last year. That in itself should not be regarded as an excuse, or mitigating circumstance in favour of the defendant where there was a continuing risk of pollution by continuing to operate the premises without the proper understanding on the part of the council as the control authority. 31. Mr Andrews submits that the degree of seriousness of the offence should be regarded as being at the lowest end of the spectrum in circumstances where the Parliament has seen fit to impose a maximum penalty in the case of a corporation of $250,000. On the other hand, Mr Clay describes the degree of seriousness as being in the medium range. 32. There is no doubt that the offence is to be regarded as serious in itself, having regard to the amount of the maximum penalty specifically provided in Pt 4.3 of Ch 4 of the PEO Act. The Court should nevertheless recognise that the preventative action could be directed at a wide spectrum of activities, and that the particular circumstances should be considered in each case against what might be the worst-case scenario. 33. The Court needs to take into account not only the element of individual deterrence to this defendant, but also the issue of general deterrence so that this Court indicates generally that it recognises the legislation provides for the steps to be taken which the council took, and that a failure to comply with a notice issued pursuant to s 96 must be regarded seriously. In other words, notices of this kind are meant to be complied with, and it is no answer to the charge that the defendant ultimately did it on the day before this prosecution was listed for hearing. 34. I accept that the evidence in favour of the defendant, their degree of contrition and intentions for the future are unrefuted. An assurance has been given to the Court that the company proposes to maintain a constant lookout, to use its own words, or the words of its director, for matters which may require preventative action. The director, Roderick McClure, has indicated that it is company policy to immediately take corrective action should any environmental matter occur. 35. Although that may be an expression of contrition and an indication of awareness of its responsibilities, in the absence of an explanation it does not amount to a mitigating factor in regard to the reason the notice was not complied with. However, the Court recognises that some action has been taken. Even though the reports have not been furnished, there is evidence before the Court, which is not disputed, that physical steps have been taken on the site to prevent future pollution events. 36. The defendant indicated some contrition by entering a plea of guilty at the earliest opportunity. The prosecutor takes no issue with the fact that it is entitled to the full amount of the discount indicated by the guideline judgment of the Court of Criminal Appeal in R v Thomson; R v Houlton (2000) 49 NSWLR 383. 37. Mr Andrews, on behalf of the company, asks the Court to recognise that if the reports and the recommendations in them are implemented then considerable expense will be incurred. It is difficult for the Court to give a great deal of weight to that submission in the absence of any evidence by way of an indication of the expense incurred. However, the Court does appreciate that this is a rural industry taking place in a country town, and that ultimately the lodgement of the plans may indicate good intentions for the future. 38. Furthermore, the defendant has agreed to pay the prosecutor's costs in the sum of $8,500. Although not at the lowest end of the spectrum of seriousness, the Court finds that the offence is at the lowest end of the next level of seriousness which might be described as a matter of convenience as the medium level (care needs to be taken not to apply any prescriptive element in identifying the level of seriousness in those terms). 39. Taking all of the matters I have just described into account, the Court is satisfied that a fine should be imposed in the sum of $27,000. 40. Accordingly, the formal orders of the Court are as follows:- (1) The offence is proved. (2) The defendant is convicted. (3) The defendant is ordered to pay a penalty by way of fine in the sum of $27,000. (4) The Court notes the agreement by the defendant to pay the prosecutor's costs in the sum of $8,500. (5) The Court allows 60 days to pay the fine. (6) Exhibits may be returned. 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