Environment Protection Authority v Port Stephens Council [2011] NSWLEC 209

Land and Environment Court New South Wales

Medium Neutral Citation: Environment Protection Authority v Port Stephens Council [2011] NSWLEC 209 Hearing dates: 18 August 2011 Decision date: 21 November 2011 Jurisdiction: Class 5 Before: Craig J Decision: 1.The defendant is convicted of the offence against s 48(2) of the Protection of the Environment Operations Act 1997, as charged. 2.The defendant is fined the sum of $40,000. 3.The defendant, at its 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 both the Port Stephens Examiner and Newcastle Herald newspapers at a minimum size of 10 cm x 20 cm in the form of Annexure A to these orders. 4.The defendant must pay the prosecutor's costs, as agreed, in the sum of $44,000 within 28 days of this order. 5.The defendant, pursuant to s 248(1) of the Protection of the Environment Operations Act 1997, must pay the prosecutor's investigation expenses, as agreed, in the sum of $27,000 within 28 days of this order. 6.Exhibits may be returned. Catchwords: PROSECUTION - sentence - offence against s 48(2) of the Protection of Environment Operations Act 1997 - Council carrying on a "waste facility" without a licence contrary to provisions of the Act - no actual environmental harm - contrition demonstrated by defendant - mitigating factors - low end of scale of objective seriousness - penalty imposed - publication order made Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Environmental Planning and Assessment Act 1979 Local Government Act 1919 (now repealed) Protection of the Environment Operations Act 1997 Waste Avoidance and Resource Recovery Act 2001 Waste Minimisation and Management Act 1995 Cases Cited: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280; (2008) 163 LGERA 71 Environment Protection Authority v Smart Skip NSW Pty Ltd [2009] NSWLEC 204 Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278 Environment Protection Authority v Robinson [2004] NSWLEC 629 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v White, CCA, 25 July 1991, unreported Veen v The Queen (No 1) [1979] HCA 7; (1979) 143 CLR 458 Category: Sentence Parties: Environment Protection Authority (Prosecutor) Port Stephens Council (Defendant) Representation: COUNSEL Mr M Kelly (Prosecutor) Mr T G Howard with Mr J Connors (Defendant) SOLICITORS Office of Environment and Heritage (Prosecutor) Harris Wheeler Lawyers (Defendant) File Number(s): 50039 of 2010