Russell Kennedy Lawyers were engaged by Hobsons Bay City Council to prosecute a breach of the Planning and Environment Act 1987 (Vic) (Act) regarding land developed in contravention of a Planning Permit.
Charge
The owner of the land (a company) was originally charged with four breaches of the Act before negotiations resolved the matter to proceed with one breach of the Act as follows:
Between 23 February 2019 and 18 April 2019, you (the corporate accused) did develop land, namely (the land) in Victoria, in contravention of a Planning Permit in contravention of section 126(2)(a) of the Planning and Environment Act 1987.
Particulars
Permit PA (number) did not permit you to move soil and other material containing asbestos excavated from a part of the Land to another part of the Land.
You undertook work comprising:
- excavating more than 26,000 cubic metres of soil and other material containing asbestos from one part of the Land; and
- moving approximately 26,000 cubic metres of soil and other material containing asbestos to, and reburying approximately 26,000 cubic metres of soil and other material containing asbestos at, another part of the Land.
The maximum penalty for a breach of section 126(2)(a) is 1200 penalty units which equated to at the time of the offending $193,428.00.
Background Facts
The land which was the subject of the charge included a former quarry which had Asbestos Containing Material (ACM) buried within it, most likely arising from the operation of a James Hardie factory which operated 500 metres away between 1927 and 1998.
The owner purchased the land in June 2008 and sought various planning approvals for the purposes of rehabilitating and transforming the land into both residential housing and open parkland.
Between July 2018 and December 2018, the owner removed from the land approximately 12,536 tonnes of ACM in accordance with an environmental Remediation Action Plan at a cost of approximately $3.5 million. In January 2019, further investigations revealed that the amount of ACM at the land was estimated to be 6-7 times the original estimate (approximately 60,000 tonnes).
The owner subsequently met with the EPA in January 2019 with a proposed alternative remediation strategy which included retaining the ACM onsite at an appropriate depth and capping it. ACM located beneath future residential dwellings was to be relocated to proposed public open space to be vested in the Council.
Between 23 February 2019 and 18 April 2019, the owner authorised the excavation and movement of ACM from one part of the land to another part of the land. Approximately 30,000 tonnes of ACM contaminated soil was moved and buried (and was proposed to be “capped”) to the part of the land that was intended to be Council parkland.
By its plea of guilty the owner admitted that the movement of the ACM was not authorised by a Planning Permit issued in November 2015 for bulk earthworks and fill for the Land (earthworks to fill the depression in the Land).
The agreed summary of facts stated that the work to relocate the ACM for on-site burial and capping, occurred without any discussion with Council.
The owner was under the impression they had permission from the EPA to do the above work.
A representative of the company stated when questioned:
- "we thought we had permission and so we shifted the asbestos material from under the apartments to under the proposed oval”
- "we wouldn't have done it if we didn't think we had permission."
- “we had a meeting with EPA in January".
- "we are not like not like that."
- "there may be 90,000 tonnes of asbestos material on site. About 30,000 tonnes was shifted from under the apartments to under the open space."
- "about 10,000 tonnes was properly disposed of offsite"
Council’s environmental expert’s opinion is that the cost which the owner would have incurred in 2019 to transport 26,000 cubic metres of asbestos contaminated soil to the nearest EPA licenced landfill for disposal at that landfill was approximately $4 million.
The asbestos contaminated soil remains at the land.
Magistrates’ Court Decision
On 11 August 2023 the plea hearing for the charge against the Accused was heard in the Online Magistrates’ Court.
The matter was heard before Her Honour Magistrate McCarthy. The Accused entered a plea of guilty to the charge. The facts as broadly outlined above were read to the Court. The Accused accepted the summary and Her Honour found the charge proven.
The prosecution and defence both made submissions on sentence to the Court.
The sentence was delivered at the Melbourne Magistrates’ Court on 17 August 2023.
In sentencing Her Honour Magistrate McCarthy made the following remarks:
- she had regard to the purpose of the Act namely:
- to establish a framework for planning the use, development and protection of land in Victoria in the present and long-term interests of all Victorians.
- she took into account the agreed statement of facts and both the prosecution and defence submissions and that the maximum penalty was approximately $193,000;
- that the Accused stated the offending was of low objective seriousness and that they were acting on a reasonable but mistaken mistake belief that approval had been given by the EPA to remediate the land;
- that she considered the defence submissions that there was no subterfuge and no permanent or irreversible damage to the land;
- that she considered the prosecution submission that the mistake was not honest and reasonable citing meetings in January 2019 where Council was not present;
- that it could not be said to be an honest and reasonable mistake noting the Accused was aware of previous proper works and the costs of those works (got a permit and disposed of ACM at a cost of $3.5 million);
- subterfuge was not that relevant to sentence;
- the Accused had no actual or possible permission [from council];
- the Court takes judicial notice of ACM and that this material causes significant harm to the health of the community and that it has a long term effect on those who are exposed to it;
- there was no evidence before the court as to what remediation will occur, that the court does not take this into account;
- the community relies on the permit system contained in the Act for the development and protection of land in Victoria in the present and long-term interests of all Victorians;
- the court places weight on this being the purpose of the Act;
- the court took into account the Accused’s lack of prior convictions and otherwise good character;
- it is a strict liability offence and previous sentencing statistics are not helpful as each matter turns on its own facts;
- it is considered to be a serious breach that involved the removal of dangerous material in the circumstances where the court has no evidence as to the steps required to remediate it; and
- it was common ground and the Court accepts that both general and specific deterrence are relevant sentencing principles that loom large in this matter.
Her Honour Magistrate McCarthy, imposed a fine on the Accused of $125,000 with conviction and ordered the Accused to pay Council’s costs in the sum of $154,697.10. But for the plea of guilty the Court would have imposed a fine of $150,000.
County Court Appeal
The Accused has filed a notice of appeal on sentence alone which will be heard in the County Court in March 2024.
Further information
Please contact our Prosecution and Enforcement Team should you require any further advice: Daniel Silfo, Marcus Heath, Elizabeth Flanagan, Karmen Markis and Matt Taylor.
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