The operator of a "hard rock" quarry located at Corindi Beach on the north coast of NSW near Coffs Harbour, Wyanga Holdings Pty Ltd, as well as the company's directors, have been convicted in the Land and Environment Court for breaching the Protection of the Environment Operations Act by failing to disclose on their Annual Return to the EPA that the company had exceeded production limits imposed in its Environment Protection Licence. The company directors were held personally liable for the offence due to the application of section 169(1) of the POEO, which provides that when a corporation contravenes the Act, the directors of the company are also taken to have committed the same breach.
The circumstances of the offence were that the company submitted an Annual Return for the 12 month period from 1 February 2011 - 30 January 2012 which did not acknowledge that a licence condition limiting the quantity of material that could be lawfully extracted at the quarry to 50,000 tonnnes a year had been breached. The actual level of production during that period was actually nearly twice that amount, more than 96,000 tonnes.
The company and the directors were prosecuted under section 66(2) of the POEO. This section of the Act provides that the holder of a licence that provides information to the EPA under the conditions of an environment protection licence that is false or misleading in a material respect is guilty of an offence and is subject to substantial penalties ($1 million in the case of a corporation and $250,000 in the case of an individual).
Although the company and its directors pleaded not guilty to the charge, they did not contend either that the company had not exceeded the production quote imposed by the condition of its environment protection licence, nor did they contend that they had in fact disclosed the exceedence in their Annual Return. Instead, they advanced submissions to the Court that the prohibition in section 66(2) of the Act against submitting false or misleading information to the EPA extends only to information of the kind that is identified in section 66(1) - namely, information relating to monitoring.
The Court, per Justice Craig, rejected the defendants' proposed interpretation of section 66(2) of the Act, finding that there is no language in section 66(2) which limits or qualifies the prohibition against submitting false or misleading information only to the type of monitoring information that is required by section 66(1). The Court's decision thus makes clear that providing any false or misleading information that is required to be submitted under the condition of an environment protection licence may give rise to criminal sanctions.
The Court's decision, Environment Protection Authority v Wyanga Holdings Pty Ltd; Environment Protection Authority v Cauchi (2014) NSWLEC 68 can be found at the following link:
http://www.caselaw.nsw.gov.au/action/pjudg?jgmtid=171862
It appears that this prosecution is only one aspect of an ongoing legal battle between the NSW EPA and Wyanga concerning exceedence of the quarry's production limits. News articles have reported that the EPA suspended the quarry's environment protection over additional exceedences of the production quota in August 2013, effectively shutting the quarry down (see http://www.coffscoastadvocate.com.au/news/epa-shuts-corindi-quarry-after-alleged-over-limit-/2004963/). An article also indicates that the company appealed against the licence suspension to the Land and Environment Court, but that the appeal was subsequently withdrawn before the case was heard: http://www.dailyexaminer.com.au/news/quarry-ends-dispute/2106364/
The Court's Website has not yet published a judgment on sentence regarding this prosecution so the fines imposed for this offence are not yet known. In a prosecution that was brought by the NSW Department of Planning for a related offence - exceeding the production quote imposed by a condition of a development approval granted under the Environmental Planning and Assessment Act - Minister for Planning v Hunter Quarries Pty Ltd [2010] NSWLEC 246 the defendant was fined $70,000. Refer to http://www.lawlink.nsw.gov.au/lecjudgments/2010nswlec.nsf/2010nswlec.nsf/WebView2/101D7098E2196DB7CA2577E700065236?OpenDocument.
It is therefore clear that the substantive offence of breaching the condition of an approval imposing a production limit can attract very substantial penalties. It will be interesting to learn how an offence involving the failure to truthfully disclose such a breach to the regulatory authorities will be dealt with by the Court.
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