Australia: Pollution – Recent Case Law Developments

The "polluter pays" principle requires those persons or entities that pollute to take responsibility for the costs that arise from the pollution. This principle requires the polluter to take responsibility for the costs arising from the pollution by either cleaning it up or restoring the environment to the condition it was in prior to being polluted.

The "polluter pays" principle is in essence reflected in the:

  • drafting of pollution provisions in environmental legislation
  • granting approval for a development subject to conditions relating to the prevention, control and abatement of pollution);
  • issuing of administrative orders by regulatory authorities; and
  • sentencing metered out by the Courts for environmental crime;

This article examines the last of those scenarios and reviews the latest decisions made by the Courts in order to determine the impact and relevance of the "polluter pays" principle in sentencing considerations.

It is worth pointing out that the majority of the decisions in the Courts of Australia, including the most recent, stem from the Land and Environment Court of New South Wales. The reason for this may be due to the fact that Magistrates Court decisions are not reported in the other states and taped records of proceedings are in any event destroyed within a short period of time. As a result, there is no other developed body of recorded law on the reasons and approaches adopted by the judiciary in applying the relevant environmental legislation in enforcement matters.

The most recent decisions handed down in the New South Wales Land Environment Court in relation to the commission of environmental offences include:

  1. Minister for Planning v Coalpac Pty Ltd [2008] NSWLEC 271

    Coalpac Pty Ltd ("Coalpac") owned and operated an open cut coal mine near Lithgow in NSW. In September 2006, the Minister for Planning granted project approval for extensions to the mine and rehabilitation activities. The approval permitted an annual production cap of 350,000 tonnes of coal in a year. However, between 7 September 2006 and 6 September 2007, Coalpac produced 635,000 tonnes of saleable coal from the mine and represented the production of 80% more coal than that allowed under the annual cap.

    Coalpac pleaded guilty to carrying out development without approval of the Minister pursuant to s15D(2) of the Environment Planning and Assessment Act 1979 (NSW) ("EP & A Act") (contrary to s125 of EP & A Act). The Maximum fine for an offence under this section of the EP & A Act was $1.1m.

    Coalpac had no record of any prior offences, however the Court determined that the appropriate penalty to impose in this matter was a fine of $200,000 stating that (at paras 55-56)

    "notwithstanding the absence of actual environmental harm, there has been damage to the integrity of the planning system. The Defendant acted quite intentionally over a significant period of time, particularly after June 2007, in committing this offence, in order to obtain a financial advantage. Importantly, the Defendant has, as a result, derived gross revenue amounting to millions of dollars."

    This decision highlights the consideration taken into account by the Courts in sentencing and indicates the view that tougher penalties will be warranted to deter offenders even in the circumstances that the offence results in no actual environmental harm.
  2. Director-General of the Department of Environment and Climate Change v Hudson [2009] NSWLEC 4

    The defendant in this matter Mr Hudson owned a property 60km east of Moree (with his wife) and had authorised the clearing of 486 hectares of native vegetation on the property between 2006 and 2007 for the purposes of "weed management". A prosecution was brought against Mr Hudson for clearing the native vegetation otherwise than in accordance with a development consent or property vegetation plan contrary to s.12 of the Native Vegetation Act 2003 (NSW). A further charge was brought in that Mr Hudson had , without reasonable excuse, failed to comply with a notice requiring him to produce evidence about the commission of the offence (contrary to s.36(4) of the Native Vegetation Act 2003 (NSW)).

    Mr Hudson pleaded "not guilty" to the charges on the basis that the clearing had been taken out for the purposes of routine management activities and accordingly permitted under Division 2 or 3 or otherwise excluded by Division 4 of the Act. The court found Mr Hudson guilty and in imposing the sentence, pointed out that the penalty should probably reflect the large area of land cleared, the deliberate nature of the offence, the absence of any contrition or remorse and the need for the penalty to act as both a general and specific deterrent.

    The court concluded that as the clearing was carried out as part of the agriculture activities on the land and in that sense was part of a commercial operation (i.e. "motivated by commercial considerations") that a significant fine totalling $408,000 (for both offences) was appropriate. This decision again highlights the importance the Court places on the deterrent effect of the penalty imposed in matters involving the environment.
  3. Hawkesbury City Council v Johnson [2008] NSWLEC 138 and Hawkesbury City Council v Johnson (No. 2) [2009] NSWLEC 6

    The decisions in these matters resulted in penalties of over $30,000 for illegal tree clearing. The landowner, Mr Johnson, and his company, were found guilty of the same offence under s125 of the EP & A Act of an authorised land clearing.

    In determining the objective seriousness of the offence, the Judge (Pain J) held that although the defendants relied on advice that the clearing was lawful, they acted recklessly as more should have been done to clarify whether the clearing was lawful before it commenced. The decision demonstrates once again that the Courts are more likely to hand down tougher penalties if the offence results in significant environmental harm.
  4. Garrett v Freeman (No. 5); Garrett v Port Macquarie Hastings Council; Carter v Port Macquarie Hastings Council [2009] NSWLEC 1

    In Garret v Freeman (No.5) the Court delivered sentence against both the Port Macquarie Hastings Council ("the Council") and its Director of Infrastructure Services, Mr Freeman.

    Mr Freeman had been charged with two offences under the National Parks and Wildlife Act 1974 in his capacity as "a person concerned with the management of the Council". Mr Freeman was a senior Council employee authorising the construction of road works owned by the Council. The Court found that Mr Freeman had failed to comply with the requirements of the environment assessment for the construction of a road on environmentally sensitive land with the effect that damage was caused to the habitat of certain protected species. The Council, charged in its corporate capacity, pleaded guilty and Mr Freeman pleaded not guilty.

    In the penalty judgment, the Court ordered Mr Freeman to personally pay fines in the sum of $57,000 plus prosecutor's costs in the sum of $167,500 and the Council were ordered to pay total fines in the sum of $80,500 plus the prosecutor's costs in the sum of $194,000.

    This case is significant as it not only demonstrates that the Department of Environment and Climate Change's willingness to prosecute an individual for breaching environmental laws in addition to the punitive approach it takes against corporations, but also the fact that the Court placed significant weight on the deterrence effect in it's sentencing considerations..

It is clear from the decisions in the above matters that courts, in being faced when determining the appropriateness of a sentence for environmental offences, will take into account not only the degree of environmental harm as well as the need for deterrence. The trend, however, is clearly for significant monetary penalties to be imposed on environmental offenders, particularly for more serious offences.

It is arguable that the increase in the size of fines imposed at the upper end is not only as a result of the Courts desire to deter the commission of similar offences, but also the fact that the defendant, normally a corporation, has a greater capacity to financially absorb the penalty.

Corporations must accordingly take particular care in how they act to prevent, contain or abate incidents of pollution, because if prosecuted and convicted, they are likely to face significant penalties in future.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions