This case is of interest to local government prosecutors because it:
- considers the type of evidence that should be lead in order to prove the elements of an environmental offence (and serves as a gentle reminder about appropriate evidence gathering);
- reviews factors the Court considers when imposing a penalty; and
- clarifies when it is appropriate to award costs above the scale.
Of special interest in respect of the sentencing are the following:
- Both the Magistrate and the District Court considered too much emphasis was placed on the circumstances of the "extreme rainfall event";
- The issuing of an infringement notice will not constrain the Magistrate's exercise of discretion in respect of determining an appropriate penalty;
- 10% of the maximum penalty was not manifestly excessive and was not disproportionate to the capacity of the appellant to meet it; and
- On the basis that the relevant offence implies potential environmental harm, deterrence may be an appropriate consideration and does not need to relate to proven environmental harm.
Palmgrove was engaged by the registered owner of land to carry out works on the land (the site) which were authorised by a valid development approval. The nature of the works required Palmgrove to implement appropriate sediment and erosion controls. The Development Approval contained the following condition:
"29. No release, or flow is permitted from the site, throughout the earthworks and construction period, to any waterway, or stormwater drain or drainage line leading to a waterway or area of native vegetation, unless the level of Total Suspended Solids does not exceed a concentration of 50 milligrams per litre (refer to Advisory Notes)."
Importantly, Palmgrove was contractually bound to comply with all legislative requirements including the conditions of the development approval. By the terms of the contract Palmgrove was entirely responsible for the implementation, monitoring and maintenance of erosion and sediment control measures on the site and was liable for any breaches of legislative requirements and conditions of approval.
On the site there were two sediment basins. Sediment basin number 2 and its associated pipe network, had capacity for a 48mm rainfall event. Notably, at the time of the incident, two white PVC pipes which were connected with sediment basin 2 and drained to a channel outside of the site were open.
On August 10 2010, there was a significant rainfall event of about 90mm in 24 hours. As a result of the PVC pipes being open, large amounts of sediment laden water escaped from the site and ultimately flowed into a wetland.
On August 11, two officers of the Sunshine Coast Regional Council inspected the site and conducted several tests including visual tests of the water after it had entered the channel and sampling of water once it had mixed in with other sources of water feeding into the channel; (the sampling point being approximately 30 - 60metres inside the site boundary). Both Council officers were of the opinion that the discharge of the water from the site was in contravention of condition 29 because the total suspended solids exceeded a concentration of 50 mg/L. The sample was subsequently found to contain a concentration of 600 mg/L.
Whilst no sample was taken at or near the site boundary, the Council officers were able to say that the stormwater was highly turbid and it was inferred that the concentration exceeded 50mg/L at the boundary by reference to a field test of the turbidity of water using an empty coke bottle and filling it with water whereby if you can see your fingers through the other side the bottle, the turbidity is less than 50mg/L. An officer was able to testify that "There was – was no way you could (sic) your fingers through the other side of the bottle."
Upslope of sediment basin 2, erosion occurred and sediment entered straight into the stormwater system. There was an absence of treatment measures, including the absence of sandbags around a manhole and topsoil not stabilised by either mulch or hydro-mulch spray. These lack of erosion and sediment control measures meant that the velocity of water and movement through the site was uncontrolled.
The appellant was charged and convicted of an offence under s440ZG of the Environmental Protection Act 1994 (EPA) for unlawfully depositing a prescribed water contaminant into a waterway.
Palmgrove appealed against the conviction on numerous grounds including that:
- The offence was not proven beyond reasonable doubt;
- The fine was manifestly excessive and that deterrence was an inappropriate consideration in sentencing; and
- The costs awarded against the appellant were above the scale and not justifiable.
WAS THE OFFENCE PROVED BEYOND REASONABLE DOUBT?
The offence under s440ZG relevantly provides that "A person must not unlawfully deposit a prescribed water contaminant...in a roadside gutter or stormwater drainage".
An element of the offence is that the act of depositing a contaminant must be unlawful. A relevant act is unlawful unless it is authorised to be done under, amongst other things, a development condition of a development approval.1 Accordingly, the development approval is relevant.
Evidence confirmed that the defendant had not blocked off the stormwater pipes from sediment Basin 2 and that as a result, contaminated water flowed into the sediment basin and through the pipes out into a channel. Less turbid water from a side culvert also flowed into the channel but the predominant source of contamination was the water that flowed through the stormwater pipes.
Although the sample was taken within the boundary of the site (at the boundary of the construction site and adjacent to the PVC pipes and about 80 metres from the culvert near the storm water drainage where the contaminated water eventually flowed), the Magistrate found the charge proven on the basis that:
- there was no evidence of any possibility of the water being contaminated from any other location; and
- the contaminated water flowed along the channel, through vegetation and into stormwater drainage further downstream.
Palmgrove claimed that this was an unreasonable conclusion by reference to "the evidence of the collection of a single sample of water taken in the investigation".
Palmgrove argued that the evidence "did not allow for proof beyond reasonable doubt of commission of the offence because:
- No sample was taken at or sufficiently near to the boundary line, to prove it;
- No sample was taken sufficiently close to the source of the movement of water from the sediment basin and into the channel before it became mixed with the water coming from the side culvert, also emptying into that channel; and
- The possibility of an overflow event, given the overnight rainfall in a quantity that exceeded the capacity of the sediment basin, was not excluded as potentially contributing to the state of the water in the channel from which the sample was taken."
The last contention is of note because Palmgrove sought to draw upon the concept of general environmental duty as set out in s319(1) of the EPA which provides:
"that a person must not carry out any activity that causes, or is likely to cause, environmental harm unless the person takes all reasonable an practicable measures to prevent or minimise the harm."
Under section 493A(3) it is a defence to a charge of unlawfully doing a relevant act to prove the relevant act was done while carrying out an activity that is lawful apart from the EPA and the defendant complied with the general environmental duty.
To enliven s493A, the defendant must specifically raise it, and then the onus of proof falls upon the defendant. Palmgrove did not raise the defence and, in any event, from the evidence of the Council officers, it was inferred that the pipes had not been capped
In relation to the other grounds, the Council only had to prove that the release of the turbid water was unlawful if the concentration of solids at the point of release of the water from the land, exceeded 50mg/L and not that the turbidity of the water was 600mg/L in a channel downstream of the appellant's site. The Council had to prove that the deposit was "unlawful" by reference to the condition of the DA because if it had been complied with, the relevant act would not have been unlawful.
Whilst no samples were taken near the boundary of the actual land (but rather in the channel adjacent to the two PVC pipes and with the boundary of the construction site) and no evidence lead as to the visual observations made at the boundary of the land (but rather what was seen at the point of the sample), the Court was able to infer beyond reasonable doubt that the concentration of suspended solids in the water at the point of release at the boundary of the land exceeded 50mg/L.
WAS THE FINE MANIFESTLY EXCESSIVE AND WAS DETERRENCE AN APPROPRIATE CONSIDERATION IN SENTENCING?
The fine was not manifestly excessive and deterrence was an appropriate consideration in sentencing:
The $15,000 fine was only 10% of the maximum availability penalty
- Proof that the appellant committed an offence under the Act did not require proof that any environmental harm had been caused
- It is the deterrence of this offending conduct, rather than any proven environmental harm, which is the principle to be recognised
- Infringement notice penalties are standard and do not have regard to any individual or particular circumstance. They are obviously designed to be an incentive towards the earliest and least burdensome method of dealing with such offences from the perspective of both a prosecuting authority and the relevant court.
- And the appellant failed to take advantage of that opportunity
- The Court did not agree that the issuing of a penalty infringement notice should have limited the Magistrate's discretion as to the penalty amount awarded.
WERE THE COSTS ORDERED AGAINST THE APPELLANT ABOVE THE SCALE, JUSTIFIABLE?
Under s157 of the Justices Act 1886, the Magistrate exercised his discretion and ordered the appellant to pay the respondent Council, "such costs as....seem just and responsible." Section 158B fetters the discretion exercised in awarding costs and, in particular, an amount higher than the scale may only be allowed if the Court is satisfied having regard to the special difficulty, complexity or importance of the case.
His Honour, Judge Long SC noted that whilst it may not necessarily be enough that a case is of a particular type, for example, a prosecution under the EPA, it is a relevant factor that the case may involve concepts and legislation that are not regularly encountered and is more complicated than usual.
Further, it is unnecessary that special difficulty or complexity be identified by the length or the case, whether determined by a number of witnesses or duration.
It was held that this was a case that had features that significantly departed from the usual or ordinary, in terms of complexity, difficulty and importance. Accordingly, the Magistrate had not erred in allowing costs above the scale.
This case is important because it serves as a reminder that:
- an investigator should be fully cognisant of which offence (and the elements of it) he or she is investigating;
- investigators should take as much evidence as he or she can – that evidence may be able to be used to prove a different offence, prove the unlawfulness of the relevant act or omission, or go to prove the harm caused by the commission of the offence;
- it is best practise to take more than one sample but that visual observations may be used to support the evidence of samples, for example, an observation that stormwater was highly turbid. It is useful if visual observations are scientific in their own right and be measured against a recognised benchmark;
- samples should be taken as close as practicable to the contamination source and the boundary as well as upstream and downstream;
- a rule of thumb in terms of a "starting" penalty is that 10% of the maximum penalty amount may be reasonable. The overall penalty will of course depend on other mitigating or aggravating factors;
- should a defendant wish to rely upon the s493A defence it must specifically do so and then the onus of proof will fall upon the defendant.
Whilst this case did not depend upon evidence regarding the concentration of sediment in the stormwater run-off (other than to prove the act was not lawful), it is a reminder that it is important to conduct a thorough investigation. This will enhance the prospects of securing a conviction against the defendant, but may also lead to a greater penalty and more information about the effects on the environment. Samples of water at the source of contamination, at the boundary, downstream and upstream are usually helpful not only in proving the offence but the potential harm or actual harm caused by the commission of the offence.
It is also important to take samples near any other possible source of contamination. Walking the site and adjoining properties is usually beneficial. Where practicable, an investigator should obtain as much information about the incident prior to the attending the incident site. It is common for a defendant to argue that other sites, particularly, development sites in the locality contributed to run-off or the concentration of sediment laden water. An investigator should satisfy him or herself that no other site has contributed to the sediment laden water, or if so, where possible, to what extent.
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.
|Most awarded firm and Australian deal of
Australasian Legal Business Awards
|Employer of Choice for
Equal Opportunity for Women
in the Workplace (EOWA)