Woollahra Municipal Council v. Atlen Pty Ltd [1998] NSWLEC 135

Land and Environment Court of New South Wales

CITATION : Woollahra Municipal Council v. Atlen Pty Ltd [1998] NSWLEC 135 PROSECUTOR Woollahra Municipal Council PARTIES : DEFENDANT Atlen Pty Ltd FILE NUMBER(S) : 50009 of 1998 CORAM: Talbot J KEY ISSUES: :- Statutes Clean Waters Act 1970 s 16 LEGISLATION CITED: Local Goverment Act Land and Environment Court Act CASES CITED: DATES OF HEARING: 13/07/98, 15/07/98 EX TEMPORE JUDGMENT DATE : 07/15/1998

PROSECUTOR Mr P R Rigg (Solicitor) Deacons Graham James LEGAL REPRESENTATIVES: DEFENDANT Mr A J Clout (Barrister) Pelosi & Associates

JUDGMENT: 1. HIS HONOUR: The defendant is charged that on 29 January 1997 at Double Bay it committed an offence against the Environmental Offences and Penalties Act in that it did pollute waters contrary to s 16(1) of the Clean Waters Act. It is well established, and indeed not disputed by either party, that the offence is one that attracts strict liability. It is also an accepted principle that an offence against s 16 of the Clean Waters Act attracts liability for vicarious acts of employees, and indeed contractors, where the circumstances of control are such that vicarious liability should be recognised.

2. The prosecutor's case is summarised in the written submissions by stating that the defendant, Atlen Pty Limited, was responsible for the installation of plumbing and drainage works on a site having a frontage to New South Head Road and a rear alignment to Edgecliff Road on the 29 January 1997, and that accordingly it had the necessary control of the site to fix it with liability for the escape of sand and other material from the site into the gutters of New South Head Road and beyond, into a drainage or stormwater system which ultimately leads to Sydney Harbour. The allegation is that the defendant had the necessary control as the contract builder engaged to carry out works on the site pursuant to a building approval granted by the prosecutor. It is alleged that the defendant permitted the pollution event on 29 January 1997 and failed, notwithstanding its alleged knowledge of the problem, that is an existing problem with stormwater pipes on the site, to prevent the pollution. It is further alleged that a m odified stormwater pipeline failed to operate efficiently and that its defective nature permitted matter on the site to descend into the gutters in New South Head Road.