Citation: Bartter Enterprises Pty Ltd v Environment Protection Authority [2022] NSWCCA 43
Court: NSW Court of Criminal Appeal
Date: 2 March 2022
Judges: Basten JA; Davies J; Dhanji J
Background
The appellant operated a poultry processing facility in Beresfield, NSW, and held an Environment Protection Licence under the Protection of the Environment Operations Act 1997 (NSW). The facility included a blast freezer cooled by an ammonia refrigeration system. In June 2018, while contractors were installing new fan-coil units, a worker opened a liquid stop valve without first confirming the refrigeration circuit was fully intact. The base plate of a suction valve had not been replaced, and a diversion valve had been left open, causing liquid ammonia to escape into the atmosphere for approximately ten seconds.
The EPA prosecuted the appellant under s 64(1) of the Operations Act, which makes it an offence for a licence holder when any person contravenes a condition of that licence. The specific condition alleged to have been breached was O2.1(a), requiring all plant and equipment to be "maintained in a proper and efficient condition." The trial judge in the Land and Environment Court found the appellant guilty and imposed a fine.
The appellant appealed the finding of guilt, arguing that the contractor's conduct during commissioning work did not amount to a failure to "maintain" plant within the meaning of the licence condition.
Legal Issues
- Whether the contractor's actions during upgrade works constituted a failure to "maintain" plant in a proper and efficient condition under licence condition O2.1(a).
- Whether the trial judge erred by conflating condition O2.1(a) (maintenance of condition) with condition O2.1(b) (manner of operation).
- Whether the trial judge erred by treating the entire Southern Circuit as the relevant unit of "plant," rather than examining individual components separately.
- Whether the trial judge improperly relied on the removal of the base plate, which was carried out by a person not identified in the particulars of the charge.
Decision
The Court of Criminal Appeal dismissed all three grounds of appeal. Basten JA, with whom Davies J and Dhanji J agreed, held that the word "maintain" in condition O2.1(a) is not confined to ongoing or periodic upkeep. Drawing on Genkem Pty Ltd v Environmental Protection Authority (1994) 35 NSWLR 33, the court confirmed that "maintain" in this context encompasses keeping plant in a state that allows it to perform its design function, which includes preventing the escape of ammonia into the atmosphere.
The court rejected the argument that each valve and pipe in the ammonia circuit should be assessed in isolation. The Southern Circuit was an integrated system: no individual component could fulfil the plant's design purpose on its own. Viewed as a whole, the circuit was not in a proper and efficient condition at the moment the stop valve was opened, because the base plate had not been replaced and a diversion valve was left open.
The court also rejected the argument that the trial judge had conflated conditions O2.1(a) and O2.1(b). The finding was properly grounded in the condition of the plant, not merely how it was being operated. The fact that the base plate had been removed by a different person did not undermine the charge: the offence was a status offence, meaning it was not necessary to identify the precise mechanism or sequence of actions, only that the condition of the plant failed to meet the standard required at the relevant time.
Orders Made
No orders were made in this decision.
Key Takeaways
- The Court of Criminal Appeal confirmed that "maintain" in an environment protection licence condition is not limited to routine upkeep. It extends to keeping plant in a state that fulfils its design function, including the containment of hazardous substances.
- Where plant operates as an integrated system, the relevant unit of assessment under a maintenance condition is the system as a whole, not its individual components considered in isolation.
- A licence condition breach under s 64(1) of the Protection of the Environment Operations Act 1997 is a status offence. It does not require proof of why or precisely how the condition came to be contravened, nor does it require the same person to have caused every contributing factor.
- In dismissing the appeal, the court applied the principles from Genkem Pty Ltd v Environmental Protection Authority (1994) 35 NSWLR 33, reinforcing that those principles continue to govern the construction of maintenance conditions in environment protection licences.
- No error was established in the trial judge's approach to treating the Southern Circuit as a single integrated unit of plant for the purposes of assessing whether the maintenance condition was met.
Legislation and Cases Referenced
Legislation
- Protection of the Environment Operations Act 1997 (NSW), s 64
- Clean Air Act 1961 (NSW), s 14
Cases
- Genkem Pty Ltd v Environmental Protection Authority (1994) 35 NSWLR 33
- Environment Protection Authority v Bartter Enterprises Pty Ltd (No 4) [2021] NSWLEC 45
- Environment Protection Authority v Bartter Enterprises Pty Ltd (No 3) [2020] NSWLEC 114