MONOGRAPH 40 volume 1

33 Research monograph 40 1. Introduction • Marine pollution (s 8(1) of the Marine Pollution Act 1987): – Newcastle Port Corp v MS Magdalene Schiffahrtsgesellschaft MBH — discharged oil from ship into State waters (Newcastle Harbour). 279 • Land pollution/unlawful disposal of waste (s 142A and s 143 of the POEO Act ): – Bankstown City Council v Hanna — disposal of building waste materials unlawfully on vacant private land and on a public park to avoid paying tipping fees at an approved waste facility. 280 • Air pollution (s 128(2) of the POEO Act ): – EPA v Unomedical Pty Ltd (No 4) — failed to conduct activity on premises by such practicable means as to prevent or minimise air pollution. 281 • Unlawful clearing of native vegetation (s 12 of the NV Act): – Chief Executive, Office of Environment and Heritage v Rummery — cleared native vegetation on rural property without development consent and without a property vegetation plan. Approximately, 18,000 to 20,000 trees were cleared across 248 hectares. 282 • Harming an endangered ecological community (s 118A(2) of the NPW Act ): – Chief Executive, Office of Environment and Heritage v Kyluk Pty Ltd (No 4) — illegally cleared land, which amounted to picking plants that were part of an endangered ecological community (EEC). 283 • Contravening a condition of a threatened species licence (s 175(1)(a) of the NPW Act ): – Director-General, Dept of Environment, Climate Change and Water v Forestry Commission of NSW — NSW Forestry Commission carried out a specified forest activity, namely a bush fire hazard reduction burning, in an exclusion zone, breaching a condition of its threatened species licence and affecting a key habitat of a nationally endangered species. 284 • Breach of conditions of Environment Protection Licence (s 64(1) of the POEO Act ): – EPA v Wyanga Holdings Pty Ltd; EPA v Cauchi — deliberate disregard of licence conditions in operating a quarry; exceeding prescribed output and failure to report exceedances. 285 279 [2013] NSWLEC 210 at [253]. Sheahan J found that the environmental harm caused by the oil spill “was substantial and significant, but, fortunately, neither long-lasting, nor permanent”. 280 (2014) 205 LGERA 39; [2014] NSWLEC 152 at [24]–[27]. Preston CJ of the LEC at [69] found that “the harm to the environment and human health and the financial loss to the owners of the lands caused by commission of the offences are ‘substantial’ and an aggravating factor under s 21A(2)(g) of the Sentencing Act ”. Note: The Sentencing Act 1989 was repealed by the Crimes Legislation Amendment (Sentencing) Act 1999 with effect from 3 April 2000. 281 [2011] NSWLEC 131 at [111]. Pepper J found that the level of environmental harm caused by the offence was “not substantial”. 282 (2012) 192 LGERA 314; [2012] NSWLEC 271 per Pepper J at [1], [85]. After considering considerable expert evidence from both parties, Pepper J concluded at [120] that “the commission of the offence caused moderate to substantial environmental harm, although not as substantial as the prosecutor posited … in these circumstances the harm is to be considered as an aggravating factor”. 283 (2014) 212 LGERA 1; [2014] NSWLEC 74. Pain J at [52] considered the interpretation of “harm” in POEO Act prosecutions should apply to NPW Act prosecutions. Her Honour noted “the similarity in wording between s 194(1)(a) [of the NPW Act ] and s 241(1)(a) [of the POEO Act ] … with the former introduced as part of Pt 15 to make offences under the NPW Act “broadly consistent” with Pt 8 of the POEO Act (according to the explanatory notes for the National Parks and Wildlife Amendment Bill 2010)”. The level of environmental harm was considered by Pain J at [60] as “substantial” and “ongoing but will diminish over the next fifteen years if the regeneration of the EEC [forming a Shale/Sandstone Transition Forest] continues successfully given the estimation of up to twenty years being required for complete regeneration to occur”. 284 [2011] NSWLEC 102. Pepper J at [75] held: “having regard to, in particular, the endangered nature of the [impacted] species and the sizable area (approximately 90%) of habitat affected by the burn” found that “the environmental harm caused by the commission of the offence to be in the low to moderate range”. 285 [2015] NSWLEC 78. Although it was conceded by the prosecutor that there was “no actual environmental harm” at [111], Sheahan J stated at [126] that “the prosecutor has satisfied me beyond reasonable doubt that there was a ‘potential’ for harm to arise, at a general level. Increasing the intensity of an activity for which an EPL is issued, contrary to that EPL, must, generally, give rise to a potential risk of harm to the environment”.