Environmental Case Briefs: September 2003

Article by Tim Power, Tony van Merwyk and Michael Back

Commonwealth

Wilson on behalf of the Bandjalong People v Department of Land and Water Conservation

This was an application from a group of farmers affected by one of two applications lodged with the National Native Title Tribunal (NNTT) for determination of native title claims. The area covered by the claims is a large area of land and water that includes national parks, reserves, pockets of Crown land and State forests, in and around the town of Evans Head. This hinterland area is claimed to be the traditional country of the Bandjalong people and about 113 parties were included in the claim, including four indigenous respondents.

The farmers were seeking a motion to join the two applications, which were over adjoining areas of land, into one proceeding so that they could either be consolidated, or at least heard at the same time. Justice Hely dismissed the motion for a number of reasons, including the fact that the first of the claims had progressed to a point where it would be ready for trial in the relatively near future, while the second claim was nowhere near such a point. Furthermore, many of the respondents to the second claim were not party to the farmers' motion. However, no order for costs was made against the farmers because Justice Hely found that it was not unreasonable for them to make the application.

This was an action by Mr Keith Kemp under section 84(5) of the Native Title Act 1993 (Cth) for an order that he be 'accepted as a party opposing the Native Title claims in each of the two proceedings at issue'. In his notice of motion, Mr Kemp disclosed that if joined as a party to the proceedings he would move the Court for orders that the claim in each proceeding be struck out and that the Saltwater Tribunal Council be wound up.

Justice Branson found that it was uncontested that Mr Kemp was a descendent of the Pirripaayi people, who are traditionally associated by Aboriginal law and custom with an area that includes Saltwater. Although Justice Branson could not find that the proceedings would have a direct impact on Mr Kemp, his Honour was still willing to find that, in a broad sense, Mr Kemp's 'interests may be affected by a determination in the proceedings'. His Honour, therefore, held that he should be joined as a respondent party in the proceedings.

On 10 April 2003, the New South Wales Land and Environment Court fined Burrangong Meat Processors Pty Ltd (Burrangong) $58,875 and ordered it to pay the Environment Protection Authority's costs of $21,500 for processing more than 800 kilolitres of effluent daily (more than four times the amount permitted under its licence) at its Young abattoir. This amount was more than the wastewater treatment system could handle and resulted in a series of offensive odour problems.

The abattoir pleaded guilty to one charge of breaching a licence condition between 14–15 November 2001, and three charges of causing an offensive odour on 11 October, 15 November and 22 November 2001. The maximum penalty for these offences under sections 64(1) and 129(1) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) is $250,000 for a corporation. In calculating the fine, Justice Payne found that the defendant had a high level of culpability. Her Honour also took into account considerations under section 241 of the POEO Act, and found that:

• each of the three odour offences resulted in actual harm to the environment, in that they interfered unreasonably with the comfort or repose of a person who was outside the premises from which it was emitted (section 241(a))
• the offences were reasonably foreseeable and more practical measures should have been taken to prevent them from occurring (section 241(b) and (c))
• the defendant conceded that it had control of causes that gave rise to the offence (section 241(d)).

Justice Payne also took into consideration that the defendant pleaded guilty at the earliest opportunity and had expressed contrition, and that the defendant had agreed to spend $930,000 to undertake works aimed at minimising pollution. These considerations led to a discounting of 35 per cent on the defendant's penalty.

On 20 June 2003, the New South Wales Land and Environment Court sentenced former Warringah Golf Club course greenkeeper, Craig Rue Coggins, to 250 hours of community service for an offence under section 116(1) of the Protections of the Environment Operations Act 1997 (NSW) (POEO Act). He was also ordered to pay $1,236 in tipping fees and disbursement for the disposal of the dead fish to Warringah Council, and the Environment Protection Authority's costs, that are expected to be more than $50,000.

Mr Coggins pleaded guilty to a charge of negligently causing a substance to escape in a manner that harmed, or was likely to harm the environment, following the incident on 12 February 2001 where a pesticide spill in Manly Lagoon killed more than four tonnes of fish and bird life.

The maximum penalty for an individual for an offence under section 116(1) of the POEO Act is $250,000 or seven years imprisonment, or both, under section 119 of the POEO Act. In calculating the penalty, the Court took into account considerations under section 241, and found that:

• the offence resulted in actual harm to the environment (section 241(a))
• there was no evidence to prove that the defendant undertook any practical measures to prevent the environmental harm (section 241(b))
• the risk of harm to the environment was reasonably foreseeable (section 241(c))
• the defendant had full control over the offence (section 241(d)).

The Court also took into account the fact that the defendant did not plead guilty until at least six months following disclosure of the prosecution's case and that the defendant had not shown contrition during the hearing. For these reasons, the Court granted the defendant a discount only at the lower end of the 10–25 per cent range. The Court also took into account that the defendant was a person of 'excellent character', with no criminal record and an unblemished employment record. Finally, the Court considered the fact that the defendant had already incurred $220,000 in legal fees so far in the proceedings, had been forced to sell his home as a result and had suffered severe emotional stress.

Warringah Golf Club has been found guilty of a Tier One (most serious) charge relating to the same incident. The hearing on the penalty in that case is pending.

On 20 June 2003, the New South Wales Land and Environment Court convicted and fined HTT Huntley Heritage Pty Ltd $117,000 and ordered it to pay the Environment Protection Authority's costs, totalling approximately $50,000, after the company contravened condition L5.3 of its Environment Protection Licence by accepting about 37,000 tonnes of construction and demolition waste at the Huntley Colliery site.

Contravention of a condition of a licence is an offence under section 64(1) of the Protection of the Environment Operations Act 1997 (POEO Act) and attracts a maximum penalty of $250,000 for a corporation, and an additional maximum penalty of $120,000 for each day the offence continues. The penalty of $117,000 was composed of a fine of $60,000 for the primary offence and an additional $3,000 daily penalty for the period 11 August 2001 to 29 August 2001.

Huntley Heritage pleaded not guilty to the charge. Justice Pearlman, however, found that the defendant's contravention of its licence was deliberate and culpable and took this into account when imposing a penalty. Her Honour also took into account considerations under section 241 of the POEO Act, and found that:

• the prosecution conceded that the offence resulted in no actual harm to the environment. However Justice Pearlman did find that harm was likely to be caused by the presence of lead found in the stockpile (section 241(a))
• the likelihood of environmental harm could have been prevented by the defendant refusing to accept waste on the site (section 241(b))
• it was reasonably foreseeable that contaminants would be present in construction and demolition material (section 241(c))
• the defendant had complete control over the events that gave rise to the offence (section 241(d)).

In mitigation, Justice Pearlman took into consideration the fact that the defendant had no prior conviction for any environmental offences, and would be paying the prosecution's costs of about $50,000.

On 21 May 2003, the New South Wales Land and Environment Court fined Shoalhaven Starches Pty Ltd, part of the Manildra Group of companies, $160,000 and ordered it to pay costs of $30,000 for two breaches of section 64(1) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act), which resulted in the emission of offensive odours. Both charges stemmed from a breach of the defendant's environmental protection licence after the defendant irrigated excessively and, as a result, ponding of wastewater was not minimised as far as practical.

The maximum penalty for these offences under section 64(1) of the POEO Act is $250,000 for a corporation. In calculating the penalty, Justice Pearlman took into account considerations under section 241 of the POEO Act, and found that:

• the offence on each occasion caused harm to the environment in the form of an offensive and invasive odour (section 241(a))
• the defendant should have taken a number of different practical measures to prevent the offence from occurring (section 241(b))
• the defendant conceded that the harm caused to the environment by the commission of each offence was reasonably foreseeable (section 241(c))
• the defendant had control over the events that gave rise to the offence (section 241(d)).

Justice Pearlman also took into account the fact that:

• the defendant does not have a good environmental record, and that between 1978 and 2001 has been convicted of 16 environmental offences
• since 1985, the defendant has expended a great deal of time and considerable money in research and development designed to provide solutions to its environmental problems
• the total cost of the new wastewater system, that the defendant will be installing and commissioning by 31 December 2003, will be approximately $38.5 million
• the defendant pleaded guilty to the charges early in proceedings, and has shown contrition and remorse for both incidences and their consequential harm.

The Melbourne Magistrates Court has fined Mobil Oil Australia $50,000, the highest monetary environmental fine yet to be handed down by a Victorian Court, and ordered the company to pay $33,500 in costs.

Mobil Oil Australia pleaded guilty on charges of air and water pollution under the Environment Protection Act 1970 resulting from the incident on 5 July 2001 at Holden Dock in which 4,000 litres of petrol-contaminated ballast were discharged following a failure to undertake petrol vapour testing in contravention of international requirements and the ships own standard procedures. Melbourne Port was closed for several hours following the incident while the spill was investigated.

The captain of the vessel also pleaded guilty to the charges and was fined $7,500.

Pivot Limited was convicted for air pollution following the release of offensive odours from its Portland fertiliser factory in February 2002. Portland Magistrates Court ordered the company to fund a $30,000 community environmental project to help rehabilitate the Walook Swamp in Portland by eradicating the area of exotic species and replanting with native species.

The company was also fined $5,000 and received a 12 month good behaviour bond.

Three companies and their company director have been fined for various offences under the Environment Protection Act 1970 relating to the unlicensed and unsafe storage of waste PCBs and pesticides, abandoning industrial waste and environmental hazard. All defendants pleaded guilty to the charges, which also included the provision of false and misleading information to an Environment Protection Authority (EPA) officer.

Each company was fined $20,000 and their company director was ordered to undertake a community based order for 300 hours of community work over 24 months. Dandenong Magistrates Court imposed the penalties, despite submissions that the companies and their director had insufficient assets, citing the need for general deterrence. The defendants were jointly ordered to pay EPA's legal costs of $26,702.

The Rockhampton Magistrates Court has fined a Rockhampton resident $25,000 (plus over $8,000 in costs) after he pleaded guilty to offences under the Transport Operations (Marine Pollution) Act 1995 (Qld) following the sinking of a vessel in the Fitzroy River in late July 2001.

Maritime Safety Queensland prosecuted Mr Wolfe for ignoring legal directions from the Queensland Government and illegally discharging oil into coastal waters. At least 2,200 litres of diesel and engine sump oil were discharged into the river when the vessel sank.

The Magistrate described the incident as 'serious' and said that Mr Wolfe had failed to monitor the condition of the vessel and failed to take the necessary action when it sank.

The fine imposed by the Magistrate is the largest fine a Magistrate has ever imposed on an individual in a prosecution brought by Maritime Safety Queensland on marine pollution charges.

John Nominees purchased a rural farming property and cleared approximately 500 hectares of vegetation at the property. At trial it was found that it had not given 90 days prior notice of intention to clear the land as required by the Soil and Land Conservation Act 1989. Such notification applies to land of one hectare or more. The Act aims to conserve soil and land resources and reduce land degradation and the effects of erosion, salinity and flooding. Both the extent of clearing and the change in the use of the land following clearing are considered within those objectives when deciding whether notice should be given under the Act.

Before clearing, the land had been in a natural bush state (perennial vegetation of the low heath scrub type), or subject to natural bush regrowth having been roughly cleared a number of years earlier. The 'complete' clearing by John Nominees of more than 500 hectares of natural bushland by chaining, burning and ploughing the land to bare earth to ready it for sowing, was found to be sufficient enough to be of environmental concern under the Regulations such as to require notice be given prior to clearing. In addition, the change in the use of the land that followed the clearing by John Nominees was from natural bushland to ploughed land ready for sowing. The Court found that a notice was required to be given prior to the clearing. Maximum penalty for failing to give notice is $2,000 for a natural person or $10,000 for a corporate body. John Nominees was sentenced to a $6,000 penalty. There were a number of grounds of appeal raised by John Nominees, all of which were dismissed by the Supreme Court.

BRL Hardy Limited has pleaded guilty and been fined $97,600 in the Environment, Resources and Development Court on four counts of contravening EPA licence conditions, and ordered to pay $19,900 in costs.

The company was charged with offences under the Environment Protection Act 1993 relating to the disposal of winery effluent onto land without the approval of the Environment Protection Authority and in contravention of the company's environmental authorization for its Renmano winery at Renmark, South Australia. Two of these offences concerned separate incidents involving the deliberate discharge by a company employee of 1,800 kilolitres and 300 kilolitres of effluent. The company was fined $24,000 for each incident, which was caused by the opening of a valve in a diverting system to allow winery effluent to flow onto land not owned or occupied by the company. The third offence concerned the breach of a licence condition that required the company 'to ensure that every employee … responsible for carrying out any task controlled by [the] licence is properly advised as the requirements of [the] licence and the general environmental duty under section 25 of the Environment Protection Act 1993 that relates to that person's tasks and responsibilities as employee'. The Court found that the company had failed to comply with this condition, and fined the company $33,600.

The company was also fined $16,000 for the fourth offence, which concerned the contravention of the environmental licence for the Berri Estate Winery. This offence concerned the accidental discharge of winery effluent caused by the breach of a levee that had been built to contain effluent pumped to a woodlot.

In calculating the fines imposed, the Court articulated the need to send a message to the community that environmental offences concerning contraventions of environmental authorisations are to be viewed seriously and stern monetary punishment will result. The Court did consider the unblemished environmental protection record of the company, the actions taken to rectify the problems and the early plea of guilty in mitigating the penalties imposed.

This article provides a summary only of the subject matter covered, without the assumption of a duty of care by Freehills. The summary is not intended to be nor should it be relied upon as a substitute for legal or other professional advice.