MONOGRAPH 40 volume 1

69 Research monograph 40 2. Findings 2.2.7.1 Value of Additional Orders imposed A large proportion of Additional Orders are made by the LEC pursuant to s 250(1)(c) and (e) of the POEO Act and involve the court directing a monetary penalty towards a specified environmental restoration or enhancement project, or to the Environmental Trust for general environmental purposes. 407 Additional Orders can be made with, without, or in lieu of, a fine. 408 The information presented in Table 9 details the value of Additional Orders imposed by the LEC — without or in lieu of a fine — during the period examined. 409 Only those Additional Orders that represented a discrete financial liability to the offender, such as orders made under s 250(1)(c) and (e) of the POEO Act are examined here. 407 POEO Act , Pt 8.3. It is not an uncommon practice for the LEC to impose a monetary penalty towards a specified environmental restoration project to remediate the environmental damage resulting from the offence. For recent examples see: EPA v Nulon Products Aust Pty Ltd [2015] NSWLEC 153 per Moore AJ at [210]; EPA v Hunter Valley Energy Coal Pty Ltd [2015] NSWLEC 120 per Pain J at [56]; EPA v Sydney Water Corp [2015] NSWLEC 80 per Preston CJ of the LEC at [129]; EPA v Causmag Ore Co Pty Ltd [2015] NSWLEC 58 per Preston CJ of the LEC at [131]; EPA v Big Island Mining Pty Ltd [2014] NSWLEC 131 per Pain J at [258]; and EPA v Peak Gold Mines Pty Ltd [2013] NSWLEC 158 per Preston CJ of the LEC at [31], [35]. The court may also utilise s 250(1)(h) to order a financial assurance to the EPA. As publication orders under s 250(1)(a) are rarely costed these are not included in calculating the value of Additional Orders. 408 Under s 250(1)(e) of the POEO Act , the LEC may, in lieu of imposing a fine, order the offender to pay an appropriate amount towards a project for the restoration or enhancement of the environment or for general environmental purposes. For example, see EPA v Peak Gold Mines Pty Ltd [2013] NSWLEC 158 per Preston CJ of the LEC at [29]. 409 There were 24 cases where the order was a “fine plus Additional Order” and the Additional Order was made under s 250(1)(c) or (e) of the POEO Act . Unfortunately, the value of the fines and not the value of these Additional Orders were downloaded to the research database. It was possible to manually obtain information on the value of these Additional Orders, where it was recorded, from the judgments of nine of the 24 cases. The mean value of the Additional Orders for these nine cases was $183,449 with a median value of $50,500. The substantially higher mean value is largely the result of an Additional Order of over $1.169 million imposed on one offender: EPA v Douglass [No 2] [2002] NSWLEC 94 per Lloyd J at [18]. Class of offender Corporation Individual Overall Special liability offender Small business owner “Ordinary Joe” Additional Orders (n) 44 0 2 1 47   (%)^ 93.6 0.0 4.3 2.1 100.0 Mean $60,785 n/a $11,000 $10,000 $57,586 Median $50,000 n/a $11,000 n/a $50,000 Middle 50% range $28,000–$80,000 n/a n/a n/a $28,000–$80,000 Lowest $5,600 n/a $11,000 n/a $5,600 Highest $175,000 n/a $11,000 n/a $175,000 Most common equal $28,000 equal $80,000 n/a $11,000 n/a equal $28,000 equal $80,000 Next most common $50,000 n/a n/a n/a $50,000 Sum a $2,674,550 n/a $22,000 $10,000 $2,706,550 ^ Percentage of the total number of “Additional Orders only” for that class of offender. Note: It is not uncommon in the LEC for an Additional Order to be made in lieu of payment of a fine. a Does not include 24 cases where the order was a “fine plus Additional Order” and the Additional Order was made under s 250(1)(c) or (e) of the POEO Act : The value of the Additional Order was identified from the judgment in nine of these 24 cases. The mean value of the Additional Orders in these nine cases was $183,449 with a median value of $50,500. The substantially higher mean value is the result of an Additional Order of over $1.169 million imposed on one offender: EPA v Douglass [No 2] [2002] NSWLEC 94 at [18]. Table 9: Value of Additional Orders a imposed for environmental planning and protection offences in the LEC — 2000 to 2015 (principal offence only)