Environment Protection Authority v Viva Energy Pty Ltd [2019] NSWLEC 13

Land and Environment Court New South Wales

Medium Neutral Citation: Environment Protection Authority v Viva Energy Pty Ltd [2019] NSWLEC 13 Hearing dates: 6 and 7 November 2018 Date of orders: 15 March 2019 Decision date: 15 March 2019 Jurisdiction: Class 5 Before: Moore J Decision: See orders at [171] to [173] 1. For Matter No 358951 and Matter No 358952: 1. The Defendant, pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, must cause a notice in the form of Appendix D, at its expense: 1. ... 2. ... 3. to be placed within 28 days of the date of this order in the North Shore Times within the first 5 pages on an odd-numbered page at a minimum size of 7 cm x 26.2 cm; and Catchwords: ENVIRONMENTAL OFFENCES - two offences arising from a single pipe failure causing a spill of marine fuel oil into Gore Bay on Sydney Harbour - offences of water pollution and breach of an environment protection licence condition - guilty pleas entered at earliest opportunity - whether deficiencies in clean-up activities constitute a factor of aggravation - aggravation not established - extent of environmental harm - defendant's subjective factors - licence breach offence more serious than water pollution offence - no need for specific deterrence - need for general deterrence - breaches to be characterised as being toward the top of the lower end of the range - principle of totality engaged as both offences arose from the same course of conduct – payments ordered to be made to the Environmental Trust ENVIRONMENTAL OFFENCES - publication order - no dispute between the parties about the appropriateness of a publication order - disagreement as to terms of proposed notice - determination of appropriate terms - disagreement as to publications in which to publish - appropriate to require defendant's conduct and results of prosecution to be drawn to a wide business audience - appropriate to include requirement to publish in the Australian Financial Review in addition to other agreed publications Legislation Cited: Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A and 22 Criminal Procedure Act 1986, s 257G Protection of the Environment Operations Act 1997, ss 3, 64(1) and (2), 120(1), 152, 241, 243(1), 244(2), 248(1) and 250(1)(a) and (e) Protection of the Environment Operations (Underground Petroleum Storage Systems) Regulation 2014, cl 19(2) Lane Cove Local Environmental Plan 2009 Cases Cited: Barbaro v The Queen, Saveio Zirilli v The Queen [2014] 253 CLR 58; [2014] HCA 2 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Environment Protection Authority v Ballina Shire Council (2006) 148 LGERA 278; [2006] NSWLEC 289 Environment Protection Authority v Dyno Nobel Asia Pacific Pty Ltd [2017] NSWLEC 64 Environment Protection Authority v Barnes (2006) NSWCCA 246 Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 Environment Protection Authority v Ardent Leisure Ltd [2018] NSWLEC 36 Environment Protection Authority v Collex Proprietary Limited (2001) 115 LGERA 337; [2001] NSWLEC 177 Markarian v R (2005) 229 CLR 357; [2005] HCA 25 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 383 Shoalhaven City Council v Hayes [2018] NSWLEC 65 Veen v The Queen (No 2) 164 CLR 465; [1988] HCA 14 Category: Sentence Parties: Environment Protection Authority (Prosecutor) Viva Energy Pty Ltd (Defendant) Representation: Counsel: Mr P English, barrister (Prosecutor) Mr C Ireland, barrister (Defendant)