In a decision handed down by Chief Justice Preston of the Land and Environment Court on 25 August 2014, a coal company has been fined $82,000 for placing a large stockpile of processed "interburden" material in a disused rock quarry, in breach of the approval that was granted for an open cut coal mine: See Secretary, Department of Planning and Environment v Boggabri Coal Pty Limited, (2014) NSWLEC 154 (25 August 2014). The case can be found at the following link:
http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=174356
The offence arose from the fact that the quarry where the stockpile was established was located outside the area that was approved for the carrying out of works associated with the mine. At the time that the original development consent was issued for the mine, the terms of the consent approved the use of a block of land in conjunction with the mining operations, but did not delineate which portions of this land could be used for mine infrastructure. However. a modification to the consent included project layout plans which specified that only a part of the subject land could be utilised. The approved area did not include the inactive rock quarry. Thus, while there was a lack of clarity in the original approval as to whether the quarry could be affected by further mining operations, the plans approved in conjunction with the amended approval plainly specified that it could not be used.
Although the stockpile that was created at the quarry was quite sizable - it contained 90,000 cubic metres of material - no evidence was produced by the prosecutor that the stockpile had caused, or was likely to cause, harm to the environment (there was no evidence, for example, that any material had been eroded from the stockpile or had been washed into local waterways. Nonetheless, the fine imposed by Justice Preston was significantly larger than penalties that have been imposed by the Court in other cases where there has been evidence of actual environmental.
It appears that a significant factor in the determination of the penalty in this case was the "harm to the regulatory scheme" of the Environmental Planning and Assessment Act that was occasioned by the use of land for mining support facilities without the prior grant of development approval. In his analysis of the "objective seriousness of the offence", Chief Justice Preston observed that the unauthorised use of the quarry had deprived the "consent authority" of the opportunity to perform an environmental assessment of the possible impacts of the stockpile, and to impose conditions to prevent or minimise adverse impacts.
The result in this case brings home the point that persons carrying out activities under the authority of an amended development consent - particularly major works like a mine - must use care to ascertain whether the amended approval restricts activities that otherwise could have been lawfully carried out lawfully under an original approval, and must closely adhere to the terms and limitations of the amended approval if they wish to avoid the risk of a penalty action by the regulator.
Commissioner Judy Fakes has recently handed down a judgement which re-enforces the principle that the Land and Environment Court does not have jurisdiction to grant relief under the Trees (Disputes Between Neighbours) Act unless most of the trunk of the tree in question is growing on the "respondent's" property. See Frith & anor v Devile & anor, (2014) NSWLEC
1198:
http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=174349
Accordingly, in situations where the branches of a tree overhang a neighbouring property, but it cannot be proven through a survey that most of the tree trunk is on the "respondent's" land, the Court is powerless to order that remedial action be taken with respect to the tree, or that compensation be paid for damages caused by falling branches from the tree.
The Frith case arose from an application which sought the removal of an Ironbark tree that was growing on an embankment on the side of the respondents' driveway. Part of the canopy of the tree overhung the applicants' property. They alleged that falling branches from the tree had nearly caused injury to persons on their land, and had caused damage to the sarking of the roof of their home.
Following the lodging of the application seeking removal of the tree and the payment of compensation, the Court made directions requiring that a survey be conducted. Under section 4(3) of the Trees Act, the Act does not apply unless the tree that is the subject of an application is situated "wholly or principally on the land" of the property owners from whom a remedy is sought. The Court has ruled that the location of a tree must be determined "at ground level" (in other words, based on where the trunk is situated) even where branches of the tree overhang the adjacent property.
In the Frith case, the survey that was carried out pursuant to the Court's directions found that more than half of the trunk of the Ironbark tree in question was located on a property that was next to the respondents' land. Because the majority of the tree was not on the respondents' land, Commissioner Fakes concluded that she did not have authority to order any remedial action with respect to the tree or payment of compensation for damage caused by falling branches from the tree. Therefore, the application was dismissed.
The decision in this case illustrates that in cases where trees a growing near a common boundary, prospective applicants would be prudent to commission surveys to confirm that most of the trunk of the offending tree is growing on the land owned by the prospective respondent (in any event, if they do not do so they may nonetheless required to do so before a hearing is held). In situations where it cannot be proven through a survey that the majority of the tree trunk is on the respondent's land, the application will fail, and the applicant will not only be denied a remedy but may even suffer a costs order.
The Land and Environment Court has sentenced a defendant, Dib Hanna Abdallah Hanna, to pay some of the largest penalties ever levied in Australia for committing offences involving the illegal dumping of asbestos-containing waste. In a judgment that was handed down by Chief Justice Preston on 23 September 2014, Mr Hanna was fined $225,000 for four separate offences that he committed on 5 April 2012. He was also ordered to publish prominent advertisements giving notice of the offences both in the Sydney Morning Herald and in the local newspapers circulating in the area where the offences were committed. A news article about the case can be found at the following link: http://www.smh.com.au/nsw/serial-offender-fined-225000-for-illegally-dumping-asbestos-waste-20140923-10kpko.html and the Court's judgment in the case, Bankstown City Council v Hanna, (2014) NSWLEC 152 can be found here:
http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=174257
Although the fines that were meted out to Mr Hanna were undoubtedly very large by Australian standards, it is our view that they were actually low by international standards (similar conduct would have garnered much larger fines in US jurisdictions). The penalties were also substantially less than the maximum that could have been imposed under the applicable legislation (the Protection of the Environment Operations Act) of $1 million. In view of the defendant's lengthy record of prior offences, and the fact that the dumping incidents with which he was charged took place after orders were made by the Land and Environment Court restraining him from transporting waste to any location other than a properly approved disposal site, it is our observation that this defendant could surely have been dealt with even more severely, and that a more stringent sentence would not have been disproportionate to the conduct involved in this prosecution.
The conduct that gave rise to this case involved the transportation of truckloads of asbestos containing building waste both to a privately owned property and to a public park located in the "Picnic Point" area of Bankstown Council's local government area. The defendant dumped 8 loads of material, comprising eighty tonnes of waste, onto the private land, and 10 tonnes of waste onto the public park. The stockpiles of waste that were deposited both on the private land and the public park contained both chrysotile and amosite asbestos.
Although Chief Justice Preston found that the waste dumping incidents had caused substantial environmental harm as well as financial loss both to the owners of the private land and the Council which maintained the public park where the waste was dumped (for removal of the waste stockpiles); that the offences had been premeditated, intentional and committed with knowledge that the dumping activity was illegal; and that the defendant illegally dumped the waste in order to achieve financial gain by avoiding landfill tipping fees, Chief Justice Preston characterised the offences as being only of "medium objective gravity".
It is our opinion that these incidents, involving the purposeful and knowing dumping of asbestos containing waste both on a public park and on the private property of innocent landowners could easily have been classified by the Court as an offence falling on the higher end of the range of objective seriousness, and not just of "medium" gravity (and thus deserving of even greater penalties).
Similarly, it is our perspective that this particular defendant's lengthy record of previous offences was an "aggravating circumstance" that could well have justified even more serious penalties. Chief Justice Preston's judgement recites that the defendant's prior record of waste dumping offences included 5 prior convictions in the Local Courts of NSW; 4 prior convictions in the Land and Environment Court; and a previous finding of contempt of court for breach of the restraining order (the contempt proceedings involved the same dumping incidents that gave rise to this prosecution against Mr Hanna). Furthermore, Chief Justice Preston's judgement recites that the defendant did not pay the majority of the fines that were imposed as a result of those previous prosecutions. Again, it is our opinion that this virtual "laundry list" of previous environmental offences would have supported an exceptionally large penalty.
While it could surely be argued that the penalties imposed in this case could and should have been higher, there can be no doubt that they are quite severe by the standards of previous environmental prosecutions in NSW and Australia. Undoubtedly, Chief Justice Preston's judgement should send a loud and unmistakable message that persons who engage in multiple incidents of dumping asbestos containing waste will receive large penalties. Indeed, the defendant was fortuitously "lucky" that the offences in this case were committed prior to the time that the POEO was amended to provide for the possibility of imprisonment for a person who commits a "waste offence" (waste offences include illegal dumping) within 5 years of being convicted of an earlier offence. Clearly, a future defendant with a record of flagrant noncompliance with the law such as the defendant in this case will be at grave risk of jail time.
In a judgement that was handed down by Justice Craig on 28 August 2014 (Environment Protection Authority v Ashmore (2014) NSWLEC 136. a company director has been convicted of two "waste" offences in the Land and Environment Court in very unusual circumstances: namely that he was allegedly "pressured" into committing the offences by implied threats of violence by a business associate. To our knowledge, this is the first case where claims of duress have been put forward as a mitigating factor in an environmental prosecution in NSW. Although the Court found the defendant's assertions that he was in fear that either he or members of his family might be harmed if he did not comply with his business associate's demands that he act illegally, these claims were not sufficient in the end to enable the defendant to escape having a criminal conviction or the imposition of significant monetary penalties.
The background of the case was that the defendant was the director of two related companies, one of which was involved in civil engineering works and the other in the transport of waste. The civil engineering company was awarded a contract calling for the bulk excavation of asbestos contaminated soil at a refinery. Under the terms of the contract, the civil engineering company was also responsible for supervising the loading of trucks to transport the waste to a disposal site. The contract contained conditions requiring the company to comply with all legislation regarding the disposal of asbestos, and to provide copies of waste receipts to confirm that the material had been taken to a properly licensed disposal site.
On the evening before the excavation of the asbestos-contaminated material was scheduled to begin, the defendant had a telephone conversation with his business associate during which the associate informed him that drivers of the trucks carrying the waste material would be instructed to transport the waste to a rural property, and that none of the material would be taken to a licensed landfill. When the defendant told his associate that the proposed course of action would be "stupid", the associate made statements to him that he said caused him to fear that there would be retribution against him and his family if he did not go along.
In the next several weeks, nearly 4,000 tonnes of material that originated on the refinery site was transported to the unlicensed rural property. The defendant asserted that he did not take steps to prevent the unlawful transport of the waste due to his fear of the business associate.
Subsequently, the business associate provided false weighbridge dockets to the defendant which stated that the material that had been excavated from the refinery site had been taken to a properly licensed waste facility. The defendant forwarded these false dockets on to the company that had engaged his own company to excavate the waste. The falsity of these dockets was quickly discovered, and the defendant's company was thereafter barred from carrying out any further work at the refinery site.
The charges that were brought by the EPA were filed directly against the defendant, and not his company, under the so-called "executive liability" provisions of the Protection of the Environment Operations Act.
These provisions, which are contained in section 169 of the POEO, specify that whenever a corporation commits an offence against the Act,, the directors of the company will be taken also to have contravened the Act unless the director is able to establish that she or he was not in a position to influence the conduct of the company or that she or he "used all due diligence to prevent the contravention". The defendant was charged with a breach of section 143 of the POEO for permitting waste to be transported to a place that could not lawfully be used as a waste facility, and with an offence against section 144AA(1) for providing information to another person about the waste that was "false in a material respect" (in this case, sending the false dockets which stated that the waste had been taken to a licensed waste disposal site.
Despite the fact that Justice Craig was persuaded that the defendant had committed the offences due to a genuine sense of fear that he and his family might be harmed by the business associate, he did not find that the overall circumstances of the case provided a basis for exonerating the defendant entirely. Accordingly, Justice Craig rejected the defendant's suggestion that the charges should be dismissed under section 10 of the Crimes (Sentencing Procedure) Act without conviction or penalty. Justice Craig indicated that he might have given greater weight to the allegations of intimidatory conduct on the part of the business associate if the defendant had disclosed that conduct to the EPA at an early stage when he had the opportunity to do so (during initial telephone calls from the EPA when he was questioned about the circumstances concerning the transport of the waste to the unlicensed rural property) or immediately to the police. Thus, instead of dismissing the charges entirely, Justice Craig saw fit to impose penalties of $36,000 against the defendant for the two offences.
The plain moral that is brought home by Justice Craig''s judgement is that a person who is coerced into committing an environmental offence through express or implied threats of violence may nonetheless be held responsible for the offence unless the person promptly tells the EPA and the NSW Police about the circumstances. This may appear to be a high expectation to place upon someone who is in a state of fear, but it is clearly an expectation that must be met if the person who has been forced into committing an environmental rime hopes to avoid prosecution and punishment.
A citizens' organisation, "Save the Trees Group" has successfully sued the State of NSW in the Land and Environment Court to prevent the removal of 9 fig trees located on the grounds of the Alstonville Primary School in Ballina Shire Council. The judgments of the Court in the case, Cooke v State of New South Wales (2014) NSWLEC 82 and Cooke v State of New South Wales (No.2) NSWLEC 148 can be found on the Court's Website at the following links:
http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=172280 and
http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=174049
The history of the case was that the trees had been present on the school grounds in 1945, when the president of Save the Trees, Mr Ian Cooke, was a student. At that time, the trees were all taller than 6 metres, and were large enough for children to climb.
Many years later, in February 2014, a branch from one of the trees fell onto the grounds of a neighbouring school, without hurting anyone. Although an arborist's report that was commissioned by the State concluded that each of the trees was in good health, it nonetheless found that there was a 1:62,000 risk that the trees could cause injury, and therefore concluded that they were inappropriate for retention on the school grounds.
The State thus sought to remove the trees without consent from the Council, under the authority of clause 31 of the State Environmental Planning Policy (Infrastructure) 2007. This clause of the SEPP provides that removal or lopping of a tree is exempt from the requirement for development consent if the tree poses a risk to human health or safety at a school.
After the report by the State's arborist was released, the members of Save the Trees wrote to the State opposing the removal of the trees and seeking permission for an independent arborist to enter the school grounds to assess the trees. The State did not respond to this letter, nor did it respond to a subsequent letter which asked the State to give an undertaking that it would not remove the trees until the independent arborist had completed an inspection. After these letters were sent, the president of Save the Trees, Mr Cooke, attended the school and observed that contractors were making preparations to cut the trees down. Save the Trees then approached the Court on an urgent basis and obtained a temporary injunction to restrain the State from proceeding with the removal of the trees.
Following the grant of the temporary injunction, an arborist engaged by Save the Trees carried out an inspection of the trees and concluded that the fig trees on the school grounds did not in fact pose a risk to either human health or safety. The State accepted the conclusions of Save the Trees' arborist, and thus conceded that removal of the trees would not constitute exempt development under the SEPP and that it did not otherwise have a required development consent or permit from the council to go forward with the removal of the trees.
Accordingly, the State essentially conceded that Save the Trees was entitled to an injunction preventing it from removing any of the trees unless and until it had received the necessary consent from the council. Save the Trees was also successful in recovering a portion of the legal costs that it had incurred in the proceedings.
The result in this case demonstrates that "David" can sometimes "beat Goliath" and that a vigilant citizens' organisation can effectively use the legal process to save a valuable and irreplaceable environmental resource. The case also indicates that statistical "guesstimates" concerning the level of risk posed by trees can be "trumped" by careful, first-hand observations concerning the health and condition of the trees in question.
The Land and Environment Court has upheld substantial fines of $95,000 that were imposed against a family trust company in the Burwood Local Court. The fines that were levied consisted of two elements - $35,000 for carrying out building works without the benefit of either a development consent or a complying development certificate, and $60,000 for repeatedly disobeying a "Stop Work" Order that was issued by the Council. The outcome in this case, Alarmon Pty Limited v City of Ryde Council, (2014) NSWLEC 100, provides a cautionary lesson that people who choose to disregard compliance orders issued by local government authorities do so at their peril, and run the risk of very significant sanctions.
The circumstances of the case were that the family trust company owned a residential property that was occupied by the director of the company and his family. In late 2012 and early 2013, major renovation works were carried out without the benefit of development approval from the Council, including demolition of the rear of the house, an attached covered area, an outbuilding and a detached garage, extension of the rear of the house for living and dining areas, and construction of a new addition which included a rumpus room and three bedrooms at the first floor level. The unauthorised building work attracted complaint to the council by local residents, who described them as an "eyesore" and a "monstrousity". The Council issued an order in response to the complaints which required the defendant company to immediately cease all building works. Nonetheless, on several occasions after the Stop Work order was issued, observations were made that the building works were continuing.
The explanation given by the director of the defendant company for continuing building works in disregard of the order was that he felt that it was necessary to carry out the works to protect the house from exposure to the elements and against the risk of theft.
In his judgement affirming the sentence of the Local Court, Justice Sheehan stated that he agreed with the local court magistrate's conclusion that the defendant's behaviour in disregarding the Stop Work order for a period of 6 weeks amounted to a "deliberate disregard of the law". Justice Sheehan found that the case called both for "general deterrence" and "serious punishment" and noted that he would have been inclined to impose even more substantial penalties had they been sought by the prosecuting council.
The result in this case shows that defendants who are prosecuted for breaches of the Environmental Planning and Assessment Act in the Local Court rather than in the Land and Environment Court may nevertheless receive substantial penalties. Where the circumstances of the case are sufficiently serious, as they were in this case, an appeal to the LEC against the severity of sentence may very well not be successful. A severity appeal to the LEC may thus compound the overall financial sanction that a defendant may suffer, as an unsuccessful defendant is virtually certain to pay the Council's additional legal costs associated with the appeal.
