(Long SC DCJ - 11 April 2014)
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Planning and Environment – appeal against conviction – where at first instance the Magistrate convicted the appellant of an offence pursuant to s440ZG of the Environmental Protection Act 1994 – where at first instance the Magistrate did not address specific requirements as to proof of the element of unlawfulness – rehearing on the record – appeal against sentence – sentence manifestly excessive or inadequate – whether in the first instance the Magistrate erred by placing "great importance" on deterrence - deterrence of the offending conduct, rather than any proven environmental harm - appeal against costs order – where the appellant contends that the award of a higher amount of costs was not justified – whether the Magistrate erred in deciding to allow the recovery of the higher amount of costs
Palmgrove Holdings Pty Ltd (Palmgrove) appealed under s 222 of the Justices Act 1886 against its conviction for unlawfully depositing a prescribed contaminant in a storm water drain pursuant to s 440ZG of the Environment Protection Act 1994 (EPA) by the Magistrates Court at Maroochydore. Palmgrove also appealed against the fine of $15,000 imposed by way of sentence and a costs order in the sum of $14,766.62.
The Magistrate Court proceedings were commenced by a complaint against Palmgrove. The complaint alleged that Palmgrove, in the course of carrying out operational works in accordance with a development approval over land at Peregian Springs (Land), unlawfully deposited a prescribed water contaminant in storm water drainage.
The particulars stated on the complaint included that Palmgrove was engaged by the registered owner of the Land to carry out works such as the implementation of erosion and sediment control measures on the Land. It was further specified that on 11 August 2010, water was released from the Land which contained a concentration of suspended solids measuring 600 milligrams per litre (a prescribed water contaminant under the EPA) and entered storm water drainage outside of the Land.
It was common ground that the release was triggered by a significant rain event on 10 August 2011 of 90mm in a 24 hour period which caused erosion on the Land. A sediment basin with a storage capacity adequate for a 48mm rain event had been constructed on the Land which drained through 2 PVC pipes into a channel. The channel flowed through retained vegetation and into stormwater drainage. The rainfall water was intended to be contained in this sediment basin, however, Palmgrove had failed to block off the PVC pipes before the rain event, which caused the sediment basin to empty out into the channel through the PVC pipes.
On 11 August 2010, the site was inspected by two Council officers who observed a channel of flowing and turbid water originating from the Land. A water sample was taken in the channel adjacent to the PVC pipes, which was tested to confirm 600 milligrams per litre. Mr Rowlands (a civil engineer employed by the Council who took the sample) believed that the taking of one sample was appropriate to get a representation of the flow as it was a well-mixed strongly flowing stream, particularly by reference to the available guidelines issued in that regard.
Palmgrove contended that the offence was not proven beyond reasonable doubt on the evidence adduced because:
- no sample was taken at or sufficiently near the boundary line of the Land 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 and 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.
Palmgrove also contended that the imposition of a fine of $15,000 was a manifestly excessive sentence. It pointed to mitigating factors such as the fact that it had no previous findings against it in 30 years of business and that the event was a one-off in that there was a significant amount of rain as well as that there was no resultant evidence of environmental harm.
Palmgrove also identified that the Magistrate placed "great importance" on deterrence and argued that this was not a good vehicle for reflection of general deterrence given the intervening rain event and that the Council issued it with an infringement notice for $2000. It submitted that this was a relevant consideration pursuant to s9(2)(r) of the Penalties and Sentences Act 1992 and was a "starting point for the consideration of an appropriate sentence".
In addition, Palmgrove appealed against an award of costs in excess of the scale amounts pursuant to section 158B of the Justices Act 1886, in the form of Counsel's fees. It contended that the case was not one of special difficulty or complexity because there were four prosecution witnesses, the evidence was heard over 2 days and there were essentially no disputes as to questions of law before the Magistrate.
Held, in dismissing the appeal:
- In order to prove that the release of turbid water was unlawful, the prosecution needed only to prove that the concentration of solids, at the point of release of the water from the Land exceeded 50mg/l. No attention was paid or drawn to this in the Magistrate's reasons, and therefore, little or no weight can be given to the Magistrate's decision.
- The evidence adduced at trial proved beyond reasonable doubt that the concentration of suspended solids in the water released at the boundary of the Land exceeded 50mg/l. That is the only rational inference that could be drawn from the circumstances.
- Palmgrove was generally responsible for compliance with the requirements of the EPA and the conditions of the development approval for that work as reinforced by contractual arrangements under which Palmgrove performed the work. Therefore, Palmgrove was liable for the result of causing or allowing the water emanating from the sediment basin to mix with water from the culvert, irrespective of the respective contributions of the combined result, given the end result was that the water flowing through the channel and at the boundary of the Land had a concentration of solids exceeding 50mg/l.
- There was no rational possibility of a potential contribution of other sources of water (for which Palmgrove did not bear responsibility) to the turbidity at the point of release of the boundary of the Land.
- The contention relating to the possible contributing factor of an overflow event engaged the concept of the general environmental duty under section 319 of the EPA, and in particular, the defence in section 493A(3) EPA which acts to place the onus of proof upon the Palmgrove to prove this contention. No attempt was made by Palmgrove to discharge that onus.
- The charge against Palmgrove was proven beyond reasonable doubt, and accordingly, the appeal against the conviction is dismissed.
- No error was demonstrated in the exercise of the Magistrate's sentencing discretion and it was not established that the sentence imposed was manifestly excessive.
- There was no demonstrated error in the Magistrate's decision as to costs such as to warrant interference with it.
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