Australia: Not my job! How important is it to identify the person who caused the breach of a NSW EPA licence?

A recent NSW Court decision provides a reminder of how broad an EPA licence holder's responsibility is, but it also held that the EPA must identify the person alleged to have breached the EPA licence, or at least say it doesn't know who it was, when prosecuting the licence holder.

Environment protection licence (EPA licence) holders were reminded recently just how broad their responsibility for ensuring compliance with that EPA licence is.

The reminder came as the NSW Land and Environment Court ordered the EPA to provide more detail of who the EPA believed caused the breach of the licence before its prosecution of the licence holder could proceed, in Environment Protection Authority v Steggles Food Mt Kuring-Gai Pty Ltd [2017] NSWLEC 33.

While that decision was important for that prosecution, and should assist others who face EPA enforcement action, it also highlights the fact that a licence holder can be in breach of its EPA licence without even knowing it.

How (and by whom) did it come to this?

Steggles operates a food processing facility, and holds an EPA licence under the Protection of the Environment Operations Act 1997 (NSW) for the "scheduled activity" of "livestock processing activities".

The EPA prosecuted Steggles for contravention of a condition of the licence, which relevantly requires that "all plant and equipment installed at the licensed premises or used in connection with the licensed activity must be maintained in a proper and efficient condition".

Section 64 of the Act relevantly states that:

  • if any condition of a licence is contravened by any person, each holder of the licence is guilty of an offence;
  • it is a defence if the licence holder establishes that the contravention was caused by another person who was not "associated with" the licence holder at the time and the licence holder took all reasonable steps to prevent the contravention; and
  • a person is "associated with" a licence holder if the person is an employee, agent, licensee, contractor or sub-contractor of the holder.

The EPA's Summons alleged that the contravention occurred because Steggles "failed to maintain a refrigeration system ... in a condition in which it did not leak ammonia". So the effect of the alleged contravention was an ammonia leak from a refrigeration plant. However, the Summons also stated that the contravention of the licence condition was done by "a person".

Steggles' lawyers wrote to the EPA saying that the EPA's Summons was not specific enough about who caused the contravention and how it occurred, and requested further particulars of the allegations, not only to prepare its defence but also to enable it to decide whether to defend the charge at all.

The EPA refused to provide the particulars, saying that they were not necessary for Steggles to understand the allegations against it and decide how to plead.

After further exchanges, and some direction from the Court, the EPA provided some specific detail about the manner in which the contravention is alleged to have occurred, but not about who caused it. Steggles sought a further direction about this from the Court.

How important is it to know who caused the contravention?

The Court confirmed that the offence under section 64 of the Act is a "status offence", which essentially means that the offence relates to the position of the person being accused of the offence (ie. the licence holder) and not necessarily what they have (or haven't) done.

Steggles did not dispute this, but said that, since the availability of the statutory defence depends on who caused the contravention and their relationship (if any) to the accused, the EPA should be required to say who it alleges that person is.

During submissions in Court, the parties both accepted that the EPA should say at least that the contravention was by "a person unknown to the prosecutor", and that is what the Court accepted.

It seems the Court also accepted that the EPA must say whether it is alleging that the accused did or failed to do something which led to the contravention and, if so, what that was. A statement by the EPA that the contravention was by a person unknown to it would help the accused, because then it would know that it was not the cause.

As the Court said, paraphrasing Steggles' barrister:

"The operator of a chicken business is not expected to be 'expert in the operation and maintenance of sophisticated refrigeration or freezer systems', but is responsible, under section 64, for ensuring their proper maintenance, by 'persons' on its behalf".

What does this mean for licence holders?

Perhaps the most important message for EPA licence holders from this case is a reminder - as licence holder, you will be responsible for the acts and omissions of your contractors, sub-contractors and others on your licensed premises.

It's not often that an accused challenges an EPA Summons because, as Steggles' barrister (and the Court) acknowledged:

"[The] modern statutory regime ... takes away sensible defences and basically makes it harder and harder for a person to escape liability".

In this case, however, the Court decided that the EPA had fallen short in the information it had provided in its Summons, given the nature of the alleged offence and the available statutory defence.

The case highlights the importance of having a good understanding of your legal obligations and the scope of those obligations - not only if you are accused of contravening those obligations, but (preferably well before that) so you can manage your operations to minimise the risk of any contravention.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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