Maund v Shoalhaven City Council [2019] NSWLEC 89

Land and Environment Court New South Wales

Medium Neutral Citation: Maund v Shoalhaven City Council [2019] NSWLEC 89 Hearing dates: 17 June 2019 Date of orders: 17 June 2019 Decision date: 17 June 2019 Jurisdiction: Class 6 Before: Preston CJ Decision: The Court orders: (1) The appeal is upheld. (2) The conviction imposed by the Local Court on 5 November 2018 against Roderick Maund for the offence against s 91(5) of the Protection of the Environment Operations Act 1997 of failing to comply with a clean-up notice dated 16 December 2015 issued by Shoalhaven City Council is set aside. Catchwords: APPEAL – appeal from Local Court – appeal against conviction for environmental offence – failure to comply with clean-up notice – validity of clean-up notice – preconditions to issue of clean-up notice – subjective suspicion of pollution incident and suspicion is reasonable – authority did not form subjective suspicion – any suspicion not reasonable in circumstances – clean-up notice invalid – non-compliance with clean-up notice not proven – conviction set aside Legislation Cited: Crimes (Appeal and Review) Act 2001 ss 31, 37, 39 Environmental Planning and Assessment Act 1979 Protection of the Environment Operations Act 1997 ss 91, 92, 104, 144, 221, 222 Cases Cited: Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349; [2006] NSWLEC 47 Environment Protection Authority v Sydney Drum Machinery Pty Ltd (No 4) [2016] NSWLEC 59 Kempsey Shire Council v Slade (2015) 214 LGERA 214; [2015] NSWLEC 135 Category: Principal judgment Parties: Mr Roderick Maund (Appellant) Shoalhaven City Council (Respondent) Representation: Counsel: Mr G Shapiro (Solicitor) (Appellant) Mr R Bignell (Solicitor) (Respondent)