Environmental & Earth Sciences Pty Ltd v Environment Protection Authority

[1999] NSWCCA 192

NSW Court of Criminal Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Environmental offences
3. › Pollution of waters
4. › Whether pollutant placed into or on to or otherwise introduced into or on to waters
5. › Whether erosion and sediment from excavation works constituted pollution
6. › Clean Waters Act 1970 (NSW), ss 5, 16(1)
7. › Clean Waters Regulations 1972, reg 2(b)(iii)
1. Criminal Law
2. › Defences
3. › Honest and reasonable mistake of fact
4. › Proudman v Dayman defence
5. › Whether sufficient basis raised on the evidence
6. › Environmental offence of strict liability
1. Criminal Law
2. › Appeal
3. › Appeal from Land and Environment Court to Court of Criminal Appeal
4. › Appeal by way of rehearing
5. › Whether guilt proved beyond reasonable doubt
6. › Criminal Appeal Act 1912 (NSW), s 5AB

Quick Take

A defendant who exposes soil through excavation works and fails to implement adequate erosion and sediment controls, resulting in sediment being washed into defined waters, commits the offence of polluting waters under s 16(1) of the Clean Waters Act 1970. It is not necessary to prove an active act of placing the pollutant directly in the water; it is sufficient that the pollutant gets into the water as a direct result of being where the defendant placed it. The Proudman v Dayman defence of honest and reasonable mistake of fact requires a reasonable basis for the belief that protective works were adequate, which is not established where photographic evidence demonstrates the works were manifestly inadequate.