Citation: Blacktown City Council v Aland B & W Pty Ltd [2022] NSWLC 15
Court: Local Court of New South Wales
Date: 29 July 2022
Judge(s): van Zuylen LCM
Background
The defendant, a construction company engaged to design and build a large residential development of 374 units across six flat buildings at Schofields in Western Sydney, pleaded guilty to two charges of polluting waters under section 120 of the Protection of the Environment Operations Act 1997 (NSW). The total contract value was approximately $50 million, and a condition of the development consent required the company to implement, manage, and monitor soil erosion and sediment control measures on site.
A council environmental health officer first attended the site on 7 May 2021 following resident complaints about trucks tracking mud onto surrounding roads. She observed no stabilised site access and a significant layer of mud and sediment on the road. The site manager acknowledged the problem and indicated he would address it.
Despite that early warning, inspections on 2 July 2021 and 9 July 2021 revealed the problem had not been remedied. On the second occasion, photographs showed an even greater accumulation of mud and sediment along the length of Isla Street, with material washing directly into gutters and stormwater drains. The stormwater drains flowed into Jerralong Creek and ultimately into Eastern Creek, part of the Hawkesbury-Nepean catchment.
Legal Issues
- Whether the defendant's conduct satisfied the elements of the "pollute waters" offence under section 120 of the Protection of the Environment Operations Act 1997 (NSW)
- What discount, if any, should apply for an early guilty plea
- How to assess the objective seriousness of the offending and the appropriate penalty for each count
- How to weigh the defendant's subjective circumstances, including remorse, remediation, and absence of prior offending
Decision
The defendant pleaded guilty to both charges. The magistrate was satisfied the plea was entered at the earliest possible opportunity, noting that the defendant's solicitor indicated the intention to plead at the first mention date on 24 May 2022. A 25% discount was applied to the penalty for each count.
The magistrate assessed the objective seriousness of the offending in the low to mid range, consistent with the prosecution's submission. Key aggravating features included the scale of the construction site, the volume of sediment visible in photographs covering much of Isla Street, and the delay in remediation after the council officer had explicitly raised the issue with the site manager in early May 2021. No control measures had been put in place by either of the July inspection dates, despite clear forewarning. While no actual environmental harm was proven, the potential for harm to aquatic organisms through turbidity was acknowledged.
The magistrate weighed the defendant's subjective circumstances, including a letter of contrition from a company director, the absence of any prior similar offending, the cleaning of the site in late July 2021, and the company's expressed commitment to future compliance. The explanation that heavy rainfall and difficulty obtaining subcontractors hindered remediation was noted, though the magistrate observed that the delay between the May warning and the July offences undermined that explanation.
Referring to comparable Local Court decisions, including matters involving sediment discharge from a dam and industrial chemical washing into a stormwater drain, the magistrate determined that a pre-discount penalty of $90,000 for the first count and $100,000 for the second was appropriate, reflecting the escalating seriousness of the second incident. After applying the 25% early plea discount, the fines were reduced to $67,500 and $75,000 respectively.
Orders Made
- Fine of $67,500 imposed for Sequence 1 (offence on or shortly before 2 July 2021)
- Fine of $75,000 imposed for Sequence 2 (offence on or shortly before 9 July 2021)
- Total fines: $142,500
- Defendant to pay prosecution legal costs of $12,000
Key Takeaways
- Under section 120 of the Protection of the Environment Operations Act 1997, "pollute waters" includes placing matter in a position where it is likely to be washed into a drain, channel, or gutter. A construction company tracking mud onto a public road adjacent to stormwater infrastructure can satisfy this definition.
- A 25% discount for an early guilty plea was applied where the defendant indicated its intention to plead at the very first court mention date.
- The Local Court confirmed that substantial fines are appropriate for water pollution offences even where no actual environmental harm is proven. The potential for harm, the scale of the pollution, and the failure to act on prior warnings all informed penalty.
- Forewarning by a regulatory officer is a significant aggravating factor. The delay between the council officer's May 2021 notification and the defendant's eventual remediation in late July 2021 weighed heavily against the defendant at sentencing.
- Proportionality between the two counts reflected the escalating nature of the second offence. The second incident occurred one week after the first, involved what appeared to be a greater volume of sediment on the road, and included visible washing of material into the stormwater drain during rainfall.
Legislation and Cases Referenced
Legislation:
- Protection of the Environment Operations Act 1997 (NSW), ss 120, 123, 241
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
Cases:
- R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317
- Environment Protection Authority v Gosford City Council (1997) 95 LGERA 338
- Environment Protection Authority v Ravensworth Pty Ltd [2012] NSWLEC 222
- Blacktown City Council v Danny Constructions (Unreported, Local Court of NSW, Robinson LCM, 28 May 2019)
- Blacktown City Council v Betacon Constructions Pty Ltd (Unreported, Local Court of NSW, Brown LCM, 24 October 2017)
- Environment Protection Authority v Tomingley Gold Operations Pty Ltd [2015] NSWLC 21
- Fairfield City Council v Quality Handling Systems Pty Ltd [2013] NSWLC 7