The Land and Environment Court of NSW
("Court") has again reminded directors
of their obligations to ensure that the companies for which they
are responsible comply with environmental laws. Recently, the Court
gave its decision in the first prosecution of a director under the
Water Management Act 2000 for the unauthorised taking of
water from the Lachlan River during a severe water shortage.
Mr Baring, the Defendant, was the sole director of Baring Park
Pty Ltd, a company now deregistered with the ASIC.
Mr Baring was found guilty of 10 offences. Mr Baring was ordered
to pay $370,000 being fines totalling $290,000 and the
Prosecutor's costs of $80,000.
Mr Baring did not appear nor was he legally represented at
either of the hearings.
During a period of severe drought, between 280 and 632
megalitres of water was taken by Baring Park Pty Ltd from the
Lachlan River, NSW, to water:
a wheat crop in mid April 2008 and late July / early August
a canola crop in mid May 2008 and late August / early September
Expert evidence was submitted to the Court as to the amount of
At the time the water was taken, the Water Sharing Plan for
the Lachlan Regulated River Water Sources 2003 was suspended
due to severe drought conditions. No water was allocated to the
water licences held by Baring Park Pty Ltd, under the regulated
river (general security) access licences, for the years 2006/7,
2007/8 and 2008/9.
Further, the water available for purchase was relatively
expensive, being traded up to $1,000 per megalitre.
The Court found that Mr Baring knowingly authorised the taking
of the water from the Lachlan River on 4 occasions and permitted
the use of that water on 4 occasions.
Further, at the time the water was taken, the water meters on
the property held by Baring Park Pty Ltd were not functioning and
as a result, Mr Baring was also found guilty of 2 failures to
notify the Office of Water of the broken meters.
Section 363 of the Water Management Act 2000 provides
for charges against a director of a company, if the person
knowingly authorised or permitted the act or omission constituting
The Court found Mr Baring guilty of all 10 offences, as
On 4 occasions Mr Baring breached section 341(1)(a) by taking
water from a water source other than in accordance with an access
On 4 occasions Mr Baring breached section 343(1)(a)(i) for the
use of a Water Supply Work to take water other than in accordance
with a Water Supply Work approval; and
On 2 further occasions Mr Baring breached section 343(1)(a)(i)
by failing to report that the meter was not functioning and
subsequently using a Water Supply Work to take water other than in
accordance with a Water Supply Work approval.
Factors in Sentencing
When considering factors relevant to the sentencing of Mr
Baring, the Court found that:
the distribution of a vital public resource underpins the
scheme for water licensing and access, hence the taking of the
water constituted a breach of public trust;
the State was precluded from effectively monitoring water
taken, due to the broken meters;
the circumstances of the offence were in the moderate to
serious range; and
in this circumstance, a general deterrent was a particularly
important consideration in sentencing for the offences
The Court further commented that, during severe water shortages,
most if not all licence holders are likely to experience
significant reductions in their expected water allocations and
most, if not all, farmers are likely to come under significant
financial pressure because of lack of water.
Implications for holders of Water Access Licences and Water
Supply Work approvals
Harrison v Baring and Harrison v Baring (No. 2)
demonstrate the seriousness of non compliance with Water Access
Licences and Water Supply Works approvals.
These cases further indicate that directors of companies that
breach these authorisations can personally face significant
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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