Environment Protection Authority v Huntsman Corporation Australia Pty Ltd [2011] NSWLEC 39

Land and Environment Court New South Wales

Medium Neutral Citation: Environment Protection Authority v Huntsman Corporation Australia Pty Ltd [2011] NSWLEC 39 Hearing dates: 11 March 2011 Decision date: 18 March 2011 Before: Craig J Decision: 1. The defendant is convicted of the offence against s 64 of the Protection of the Environment Operations Act 1997, as charged. 2. Pursuant to s 250(1)(e) of the Protection of the Environment Operations Act 1997, the defendant is ordered to pay to Randwick City Council, within 28 days of this order, the sum of $28,000 to be used for the Stormwater Harvesting and Recycling Project at Chifley Sports Reserve, Chifley. 3. The defendant, at his expense, and pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997 must, within 28 days of this order, place a notice in the first 12 pages of the early general news section of the Sydney Morning Herald newspaper and Southern Courier newspaper at a minimum size of 10 cm x 20 cm in the form of Annexure "A". 4. The defendant must, within 35 days of the date of these orders, provide to the prosecutor a complete copy of the page of the Sydney Morning Herald newspaper and Southern Courier newspaper on which the notice referred to in order 3 appears. 5. All future public references by the defendant to its contribution to the Stormwater Harvesting and Recycling Project at Chifley Sports Reserve must be accompanied by the following passage: "Huntsman Corporation Australia's contribution to the funding of the Stormwater Harvesting and Recycling Project at Chifley Sports Reserve is part of a penalty imposed upon it by the Land and Environment Court of New South Wales after it was convicted of an offence of contravening a condition of its environment protection licence, an offence against s 64(1) of the Protection of the Environment Operations Act 1997." 6. The defendant must pay the prosecutor's costs, as agreed, in the sum of $40,000 within 28 days of this order. 7. Exhibits may be returned. Catchwords: ENVIRONMENTAL OFFENCES:- sentence - breach of licence condition - s 64(1) Protection of the Environment Operations Act 1997 - offence of low to moderate objective gravity - no actual environmental harm - low risk of human harm - risk of harm reasonably foreseeable - mitigating subjective circumstances - lack of prior convictions - early guilty plea - finding of good character - remorse - co-operation with authorities - application for s 10 CSP Act refused Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Protection of the Environment Operations Act 1997 Protection of the Environment (Clean Air) Regulation 2010 Cases Cited: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278 Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280; (2008) 163 LGERA 71 Environment Protection Authority v BlueScope Steel (AIS) Pty Ltd [2004] NSWLEC 400 Environment Protection Authority v Caltex Refineries NSW Pty Ltd [2008] NSWLEC 194 Environment Protection Authority v Lithgow City Council [2007] NSWLEC 695 Environment Protection Authority v Tenterfield Shire Council [2000] NSWLEC 229; (2000) 112 LGERA 173 Environment Protection Authority v Transpacific Industries Pty Ltd; Environment Protection Authority v Transpacific Refiners Pty Ltd [2010] NSWLEC 85 Environment Protection Authority v Unomedical Pty Ltd (No. 3) [2010] NSWLEC 198 Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 R v Thomson; R v Houlton [2000] NSWCCA 309 (2000) 49 NSWLR 383 The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270 Thorneloe v Filipowski [2001] NSWCCA 213; (2001) 52 NSWLR 60 Veen v The Queen (No. 1) [1979] HCA 7; (1979) 143 CLR 458 Category: Principal judgment Parties: Environment Protection Authority (Prosecutor) Huntsman Corporation Australia Pty Ltd (Defendant) Representation: Counsel: Mr R M Fox (Solicitor) (Prosecutor) Mr I S Lloyd QC (Defendant) Solicitors: Department of Environment, Climate Change and Water (Prosecutor) Minter Ellison Lawyers (Defendant) File Number(s): 50035 of 2010