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) Solicitors: Hones Lawyers (Appellant) RMB Lawyers (Respondent) File Number(s): 2018/371367 Publication restriction: Nil Judgment 1. Mr Roderick Maund appeals against the conviction imposed on him by the Local Court on 5 November 2018 for an offence against s 91(5) of the Protection of the Environment Operations Act 1997 ("POEO Act") of failing to comply with a clean-up notice. The Local Court convicted Mr Maund for the offence, fined him $1,500 and ordered him to pay the prosecutor's professional costs in the amount of $2,000. 2. Mr Maund's appeal against conviction is as of right under s 31 of the Crimes (Appeal and Review) Act 2001 ("CAR Act"). The appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, unless this Court is satisfied that it is in the interest of justice that leave be granted to adduce fresh evidence (s 37(1) and (2) of the CAR Act). This Court may determine an appeal against conviction by, amongst other orders, setting aside the conviction (s 39(1) of the CAR Act). 3. The Council filed a submitting appearance, save as to costs. Mr Maund does not seek any order for costs against the Council. 4. Mr Maund contended that the Court should set aside the conviction imposed by the Local Court on two grounds: 1. the clean-up notice, with which Mr Maund was alleged to have failed to comply, was not validly issued; and 2. the prosecutor failed to prove that Mr Maund did in fact fail to comply with the clean-up notice. The clean-up notice given 1. Shoalhaven City Council (the Council) issued a direction to take clean up action dated 16 December 2015 under s 91 of the POEO Act ("the clean-up notice"). The clean-up notice was issued to Mr Maund "as the occupier of the premises" at lot 2 deposited plan 1154597, Woncor Avenue, Nowra Hill, New South Wales. The clean-up notice recited in the "Background" that: "1. Shoalhaven City Council believes that a pollution incident has occurred at the subject property, listed above, in accordance with Section 91 of the Act. 2. Shoalhaven City Council is the appropriate regulatory authority (ARA) with respect to the premises concerned. 3. This notice is being issued to Mr Roderick Maund as the occupier of the premises at/or from which Shoalhaven City Council reasonably suspects that the pollution incident has occurred/is occurring. 4. Since 26 November 2015 Council has granted Mr Maund a number of extensions to undertake Clean-up action prior to issuing the formal Clean-up Notice. An inspection of the subject property on 15 December 2015 revealed that while some progress had been made to clean up the subject property a significant amount of scrap metal and other waste remained on site. 5. The inspection revealed a large quantity of second hand/scrap materials and waste that included, but is not limited to, a caravan containing waste material, continental sedan, boats of various descriptions mainly fibreglass, plastic pallecons, van, street cleaner, shipping containers, tyres, assorted car doors, lengths of chain, steel offcuts and assorted pieces of machinery was still located on the subject property. (see attached photographs) 6. A search of Council failed to reveal any approval for the subject property to receive or be used for the storage or sorting or processing of these types of materials." 1. The clean-up notice directed Mr Maund "to take the following Clean-up Action" by 4pm on 11 January 2016: "1. All items brought onto the subject property by or at the direction of Roderick Maund are to be removed from the subject property. 2. Items are to be transported to a registered waste facility or location approved to accept the items. 3. Copies of waste receipts demonstrating appropriate disposal of waste are to be submitted to Council. 4. Address of approved storage site for items not disposed of at a waste facility or recycle centre." 1. The Council alleged that Mr Maund had failed to comply with direction 1 of the Clean-up Action. The statutory provisions for issuing the clean-up notice 1. Under s 91(1) of the POEO Act, the appropriate regulatory authority may, by notice in writing, do either or both of the following: "(a) direct an owner or occupier of premises at or from which the authority reasonably suspects that a pollution incident has occurred or is occurring, (b) direct a person who is reasonably suspected by the authority of causing or having caused a pollution incident, to take such clean-up action as is specified in the notice and within such period as is specified in the notice." 1. The Council is an appropriate regulatory authority to issue a clean-up notice in its local government area. 2. The concept of a "pollution incident" is defined in the Dictionary to the POEO Act as follows: "pollution incident means an incident or set of circumstances during or as a consequence of which there is or is likely to be a leak, spill or other escape or deposit of a substance, as a result of which pollution has occurred, is occurring or is likely to occur. It includes an incident or set of circumstances in which a substance has been placed or disposed of on premises, but it does not include an incident or set of circumstances involving only the emission of any noise." 1. This definition refers to "pollution", which is defined to mean: "(a) water pollution, or (b) air pollution, or (c) noise pollution, or (d) land pollution." 1. Each of these types of pollution is defined. In the circumstances of this case, the only potentially relevant type of pollution was "land pollution", which is defined as follows: "land pollution or pollution of land means placing in or on, or otherwise introducing into or onto, the land (whether through an act or omission) any matter, whether solid, liquid or gaseous: (a) that causes or is likely to cause degradation of the land, resulting in actual or potential harm to the health or safety of human beings, animals or other terrestrial life or ecosystems, or actual or potential loss or property damage, that is not trivial, or (b) that is of a prescribed nature, description or class or that does not comply with any standard prescribed in respect of that matter, but does not include placing in or on, or otherwise introducing into or onto, land any substance excluded from this definition by the regulations." 1. In this case, the Council relied on s 91(1)(a) to issue the clean-up notice to Mr Maund. The Council asserted that he was an occupier of the premises at Nowra Hill. An "occupier" of premises is defined in the Dictionary to the POEO Act to mean "the person who has the management or control of the premises". 2. The power under s 91(1)(a) of the POEO Act to issue a clean-up notice to an owner or occupier of premises is conditional on the appropriate regulatory authority (the Council here) reasonably suspecting that a pollution incident has occurred or is occurring at or from the premises. 3. In Kempsey Shire Council v Slade (2015) 214 LGERA 214; [2015] NSWLEC 135, Biscoe J considered the phrase "reasonably suspected" in s 104(2)(b) of the POEO Act. Section 104(2) empowers a public authority to take clean up action under s 92 of the POEO Act to require, by a notice in writing, "(b) the person who is reasonably suspected by the authority of having caused the pollution incident" to pay the reasonable costs and expenses incurred by the public authority in undertaking the clean-up action. Biscoe J said at [22] and [23]: "In my opinion, adapting the authorities in other contexts on "reasonable suspicion", the following principles of interpretation relevantly emerge in relation to s 104(2)(b) of the POEO Act: The public authority must have formed a genuine suspicion that a particular person (or persons) caused the pollution incident. A reasonable suspicion involves less than a reasonable belief but more than a possibility. The public authority's suspicion must be reasonable in that there is some objective and factual basis for the suspicion, which would create in the mind of a reasonable person in the position of the public authority an apprehension that that person caused the pollution incident to which the s 92 clean-up order relates. A reasonable suspicion may be based on hearsay material or material that is inadmissible in evidence but it must have some probative value. The objective circumstances do not have to establish on the balance of probabilities that that person in fact caused the pollution incident nor that there has in fact been a pollution incident. Under s 104(2)(b), a public authority's reasonable suspicion that a person has caused a pollution incident is a jurisdictional fact because it enlivens the authority's power to issue a compliance cost notice. The jurisdictional fact is partly subjective and partly objective. The subjective criterion is the mental state of suspicion as to the subject matter. The objective criterion is whether the suspicion was reasonable. If the word "reasonably" was absent from s 104(2)(b), judicial review would be limited to determining, first, whether the mental state of suspicion that the person caused the pollution incident existed and, secondly, whether that mental state was manifestly unreasonable in the Wednesbury sense (Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223): Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50 at [39] (Biscoe J); Terranora Group Management Pty Ltd v Director-General Office of Environment & Heritage [2013] NSWLEC 198, 200 LGERA 1 at [48] (Biscoe J); Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 at [156]-[160] (Pepper J). The injection of the word "reasonably" into the statutory provision requires the Court on a judicial review to determine objectively the reasonableness of the suspicion (not merely whether it was manifestly unreasonable in theWednesbury sense), on the evidence before the Court…" 1. In Environment Protection Authority v Sydney Drum Machinery Pty Ltd (No 4) [2016] NSWLEC 59, Craig J explained at [190] the requirement under s 91 of the POEO Act: "The prosecutor accepts that the formulation by the prosecutor, through its officers, of a reasonable suspicion that a pollution incident, as defined, had occurred or was occurring is a fact that must be satisfied before a valid clean-up notice could be given (Ryding v Kempsey Shire Council [2008] NSWLEC 306 at [14]). The section requires that a subjective suspicion be proved and that, objectively judged, the suspicion is reasonable." 1. As to the first element of the subjective suspicion, Craig J said at [191]: "The statutory requirement that there be a suspicion of a given state of affairs as a prerequisite to the exercise of a statutory power has been considered in a number of cases. In Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266, Kitto J said at 303: 'A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to 'a slight opinion, but without sufficient evidence', as Chamber's Dictionary expresses it." 1. As to the second element that the suspicion be reasonable, Craig J said at [192]-[194]: "Other descriptions of a 'suspicion' have been given. In R v Rondo [2001] NSWCCA 540; 126 A Crim R 562 at [53] Smart AJ (Spigelman CJ and Simpson J agreeing) said that a 'reasonable suspicion involves less than a reasonable belief but more than a possibility'. In State of New South Wales v Hunt [2014] NSWCA 47, Leeming JA (Barrett JA and Tobias AJA agreeing) said at [68] that a 'reasonable suspicion is a state of mind less certain than a belief'. In Goldie v Commonwealth of Australia [2002] FCA 433; 117 FCR 566, Gray and Lee JJ said at [5]: 'The context of the phrase 'reasonably suspects' suggests that something substantially less than certainty is required. Reasonable suspicion, therefore, lies somewhere on a spectrum between certainty and irrationality'. Clearly, a subjective apprehension of fear is insufficient to found a reasonable suspicion. Whether a suspicion is reasonable is an objective question (McKinnon v Secretary, Department of Treasury [2006] HCA 45; 228 CLR 423 at 429 per Gleeson CJ and Kirby J). The determination of that question must be considered in light of all the facts known, or reasonably capable of being known, to the decision-maker at the time of making the decision (Ruddock v Taylor [2005] HCA 48; 222 CLR 612 at [40]). Those facts upon which the suspicion is based must, in order to found a reasonable suspicion, be sufficient to induce such suspicion in a reasonable person (George v Rockett [1990] HCA 26; 170 CLR 104 at 112). As was also observed in the latter case, it is the very nature of suspicion, as opposed to knowledge or belief, that proof is lacking (at 115)." The proceedings in the court below 1. Pursuant to s 224 of the POEO Act, the Council issued Mr Maund with a penalty notice for the offence against s 91(5) of the POEO Act of failing to comply with a clean-up notice. As was his right, Mr Maund elected, under s 23A of the Fines Act 1996, to have the matter dealt with by the Local Court instead of under the statutory provision providing for the issue of the penalty notice. 2. Once Mr Maund elected to have the matter dealt with by the Local Court, the Council could bring proceedings against Mr Maund in respect of the offence as if the penalty notice had not been issued (s 37 of the Fines Act). The Council did so pursuant to s 221(3) of the POEO Act, by the issue of a Court Attendance Notice for the offence against s 91(5) of the POEO Act. These are the proceedings in which Mr Maund was convicted in the Local Court. The challenge to the validity of the clean-up notice 1. Mr Maund did not, in the court below, raise a collateral challenge to the validity of the clean-up notice as part of his defence. However, the appeal against conviction under s 31 of the CAR Act is a rehearing (s 37 of the CAR Act) and Mr Maund is able to raise the issue as a basis for setting aside the conviction: see Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349; [2006] NSWLEC 47 at [12]. 2. Mr Maund's first ground of challenge to the validity of the clean-up notice was that it was not established that he was an "occupier" of the premises, as that term is defined in the POEO Act. The evidence established that Mr Maund was not the owner of the premises and he did not lease the premises from the owner. He was given verbal permission to use the premises to store various materials, but Mr Maund submitted that this was insufficient to make him an occupier. 3. I reject this challenge. The evidence in the court below was sufficient to establish that Mr Maund was an occupier; he did not have to be the only occupier as that term is defined in the POEO Act. Mr Maund's oral evidence at the hearing in the court below established that: Mr Maund knew the owner of the premises; the owner verbally gave Mr Maund permission to go onto the property and store his materials; the owner asked Mr Maund for some money to go towards rates, which was approximately $50 per week; there was no written agreement or lease but rather a verbal agreement between the owner and Mr Maund; and Mr Maund thereupon entered upon the premises and stored his materials until he was asked to leave at a later date. The evidence of the Council officer, Mr Staples, was that Mr Maund did store his materials on the premises, Mr Maund attended the premises to meet the Council officer concerning the clean-up notice, and Mr Maund reorganised and removed some of the materials from the premises. This evidence is sufficient to establish that Mr Maund was one person at least who had management and control of the premises. 4. Mr Maund's second ground of challenge was that the Council did not in fact form the required subjective satisfaction that a pollution incident had occurred or was occurring at the time the Council issued the clean-up notice. Mr Maund referred to four site investigations undertaken by the Council before it issued the clean-up notice, on 24 November 2015, 7 December 2015, 12 December 2015 and 15 December 2015. The clean-up notice was issued on 16 December 2015. Mr Maund submitted that none of the reports of these investigations record the Council officer observing that a pollution incident had occurred or was occurring at the premises. The Council officer who undertook the investigation, Mr Staples, also gave evidence at the trial in the court below. His evidence did not record him observing that any pollution incident had occurred or was occurring at the time of any of his site visits. Finally, Mr Maund's evidence at the trial did not establish that any pollution incident had occurred or was occurring at the premises. 5. Instead, what the evidence established is that the Council was concerned that the premises were being used as a waste facility without lawful authority, contrary to s 144 of the POEO Act. The use of the premises as a waste facility might also be in breach of the Environmental Planning and Assessment Act 1979 ("EPA Act"). The Council officer referred a number of times to searching the Council records to ascertain whether there was an approval (presumably under either or both of the POEO Act and the EPA Act) for a waste facility on the premises and finding that there was no such approval. The Council officer considered that a breach of s 144 of the POEO Act, and possibly also the EPA Act, could be remedied by issuing a clean-up notice under s 91 of the POEO Act. 6. I agree with Mr Maund that the evidence establishes that the Council did not form the required subjective suspicion under s 91(1)(a) of the POEO Act that a pollution incident had occurred or was occurring at or from the premises. There is not one statement in the site investigation reports of 24 November 2015, 7 December 2015, 12 December 2015 or 15 December 2015 that preceded the issue of the clean-up notice on 16 December 2015, which evidences that the Council observed that a pollution incident had occurred or was occurring at or from the premises. The evidence does not establish that the Council even identified "an incident or set of circumstances" that could found a "pollution incident" within the meaning of that term under the POEO Act. The best the evidence established is that there was storage of materials on the premises, but the presence of these materials on the premises was not identified as an "incident or set of circumstances" for the purposes of the definition of "pollution incident". 7. The site investigation reports do not expressly state, or provide any evidentiary foundation to support a conclusion that, as a consequence of the storage of materials on the premises, "there is or is likely to be a leak, spill or other escape or deposit of a substance, as a result of which pollution has occurred, is occurring or is likely to occur", which is required in order for there to be a "pollution incident". The site investigation reports are completely silent as to any pollution having occurred, occurring or being likely to occur. If anything, the various risk assessments of the site on each occasion, contained in the site investigation reports, state, in various ways, that there are no hazards or pollution on the site by answering "not applicable" to various questions. 8. The site investigation reports do not address any of the definitions of pollution, including "land pollution", or even the elements of these definitions. In relation to land pollution, there is no evidence that the storage of materials on the premises "causes or is likely to cause degradation of the land, resulting in actual or potential harm to the health or safety of human beings, animals or other terrestrial life or ecosystems, or actual or potential loss or property damage, that is not trivial". 9. I note that it was insufficient for the Council to rely on the second sentence of the definition of "pollution incident" in the POEO Act. The second sentence enlarges the acts that can constitute the "incident or set of circumstances" that is a "pollution incident" but does not remove the requirement of the first sentence that during or as a consequence of that incident or set of circumstances there is or is likely to be "a leak, spill or other escape or deposit of a substance, as a result of which pollution has occurred, is occurring or is likely to occur". That is to say, the placing or disposing of a substance on the premises can be an incident or set of circumstances, but that action must still have the consequence that there is or is likely to be a leak, spill or other escape or deposit of a substance, as a result of which pollution has occurred, is occurring or is likely to occur. After all, it is a "pollution incident" that must occur. 10. The explanation for the Council not forming the subjective suspicion required by s 91(1)(a) of the POEO Act may be that the Council erroneously believed that it could issue a clean-up notice to remedy a breach of s 144 of the POEO Act or even of the EPA Act. But it could not. A clean-up notice could only be issued under s 91 of the POEO Act in the circumstances stated in s 91(1) and then only after the Council formed the requisite subjective suspicion. 11. Mr Maund's third ground of challenge was that, even if the Council had formed the subjective suspicion that a pollution incident had occurred or was occurring, that suspicion was not reasonable because there was no evidentiary foundation for the suspicion. I agree with this third challenge. The evidence provided no basis on which a reasonable regulatory authority, in the position of the Council, could suspect that a pollution incident had occurred or was occurring at the premises, so as to enliven the power to issue a clean-up notice. 12. For these reasons, the Council had no basis upon which to issue the clean-up notice to Mr Maund and it is invalid. Mr Maund could not be convicted of failing to comply with an invalid notice. The conviction should be set aside on this basis. The challenge to proving a failure to comply with the clean-up notice 1. The clean-up notice required Mr Maund to take the clean-up action: "1. All items brought onto the subject property by or at the direction of Roderick Maund are to be removed from the subject property." 1. The Council adduced evidence that Mr Maund removed some, but not all, of the materials, which were referred to in the clean-up notice as items, that were on the premises. But Mr Maund argued that this was insufficient to prove that he failed to comply with direction 1 of the clean-up notice. The Council had to prove that the materials or items remaining on the premises after the date of 11 January 2016 answered the description given in direction 1 of being items "brought onto the subject property by or at the direction of Roderick Maund". The Council did not do so. 2. I agree with Mr Maund. The evidence adduced by the Council in the court below, primarily the oral evidence of Mr Staples and his written site investigation reports, concerning the items remaining on the premises after 11 January 2016, was silent as to whether those items had been brought onto the premises by or at the direction of Mr Maund. Mr Maund's evidence in the court below did not assist on this question. The Council therefore failed to prove this essential element of the offence. The conviction should be set aside on this ground as well. Orders 1. Mr Maund's appeal against conviction is successful and should be upheld. 2. 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. ********** 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: 24 June 2019