Land and Environment Court New South Wales Medium Neutral Citation: Environment Protection Authority v Clarence Colliery Pty Ltd; Chief Executive, Office of Environment and Heritage v Clarence Colliery Pty Ltd (No 2) [2017] NSWLEC 98 Hearing dates: 08 August 2017 Date of orders: 08 August 2017 Decision date: 08 August 2017 Jurisdiction: Class 5 Before: Robson J Decision: See orders at [7] Catchwords: SENTENCE – variation of orders – amendment to allocation of monetary penalties payable under s 250(1)(e) of the Protection of the Environment Operations Act 1997 (NSW) Legislation Cited: Protection of the Environment Operations Act 1997 (NSW) s 250 Category: Consequential orders (other than Costs) Parties: Environment Protection Authority (First Prosecutor) Chief Executive, Office of Environment and Heritage (Second Prosecutor) Clarence Colliery Pty Ltd (Defendant) Representation: Counsel: E Bateman, solicitor (First and Second Prosecutor) C Bartlett, solicitor (Defendant) Solicitors: Department of Environment Climate Change and Water (First and Second Prosecutor) Ashurst (Defendant) File Number(s): 2016/00154310; 2016/00154311 EX TEMPORE Judgment 1. On 14 July 2017 I gave judgment and made orders in proceedings 2016/00154310 and 2016/00154311 (Environment Protection Authority v Clarence Colliery Pty Ltd; Chief Executive, Office of Environment and Heritage v Clarence Colliery Pty Ltd [2017] NSWLEC 82). 2. In each of the proceedings I made an order that Clarence Colliery Pty Ltd ('Clarence Colliery'), pursuant to s 250(1)(e) of the Protection of the Environment Operations Act 1997 (NSW) ('POEO Act'), is to pay specified amounts to the Environmental Trust established under the Environmental Trust Act 1998 (NSW) for five separate projects ('Order 4'). The effect of Order 4 in each matter was that the monetary penalty imposed ($720,000 for the POEO Offence and $320,000 for the Parks Offence) was to be divided equally among the five specified projects. 3. I also made an order in each matter that the parties had liberty to apply in respect of allocation of the funds arising from the monetary penalty. Accordingly, the matter was relisted before me today at the request of the Environment Protection Authority and the Chief Executive, Office of Environment and Heritage (collectively 'prosecutor'). 4. Mr Bateman appeared on behalf of the prosecutor and Ms Bartlett appeared on behalf of Clarence Colliery. Mr Bateman requested (with the consent of Clarence Colliery) that the Court vary Order 4 in each of the matters such that the proportional allocation of the monetary penalty be reallocated in a manner agreed between the parties. The amendment does not change the total penalty amount to be paid by Clarence Colliery in each matter, but rather varies the amounts allocated to each of the projects. 5. The reason for the application to amend Order 4 is explained in the affidavit of Eric Bateman sworn 8 August 2017. In summary, Mr Bateman attested that, following the making of orders in Environment Protection Authority v Clarence Colliery Pty Ltd; Chief Executive, Office of Environment and Heritage v Clarence Colliery Pty Ltd [2017] NSWLEC 82, further information was received by the prosecutor that revised the estimated costs of each of the five projects. As such, the current allocation of the monetary penalties does not reflect the specific requirements of each project, and the prosecutor has proposed that the monetary penalties be reallocated in accordance with draft orders agreed between the parties. 6. In the circumstances, I accept that it is appropriate to vary Order 4 in each matter, and therefore make the following orders. Orders 1. The Court makes the following orders: In proceedings 2016/00154310: 1. The allocation of funds in Order 4 made 14 July 2017 by Justice Robson in matter number 2016/00154310 be amended as follows: Clarence Colliery, pursuant to s 250(1)(e) of the POEO Act, is to pay the following specified amounts to the Office of Environment and Heritage for the following specified projects for the restoration or enhancement of the environment, as follows, within 28 days of the date of this order: 1. The amount of $505,000 for the "Stabilisation of walking tracks in the Newnes Plateau and Wollangambe/Mt Wilson area". 2. The amount of $55,000 for "Enhancing the survival of the endangered Blue Mountains Water Skink". 3. The amount of $60,000 for "Water Quality Improvement – New Toilet at Deep Pass". 4. The amount of $100,000 for "Weed control in Wollangambe Catchment". In proceedings 2016/00154311: 1. That the allocation of funds in Order 4 made 14 July 2017 by Justice Robson in matter number 2016/00154311 be amended as follows: Clarence Colliery, pursuant to s 205(1)(d) of the Parks Act, is to pay: 1. The amount of $279,260 to Lithgow City Council for the "Farmer's Creek Precinct Master Plan", within 28 days of the date of this order. 2. The amount of $50,740 to the Environmental Trust established under the Environmental Trust Act 1998 (NSW) for general environmental purposes within 28 days. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 August 2017