Environment Protection Authority v Ashmore (No 2) [2014] NSWLEC 142

Environment Protection Authority v Ashmore (No 2) [2014] NSWLEC 142

Although the omission to seek investigation costs at the sentence hearing was inadvertent and the case was allowed to be re-opened, the Prosecutor did not establish that the geotechnical site stability costs were reasonably incurred as a consequence of investigating the offences charged. The evidence did not show that the waste transported from the Shell site and deposited on or near the dam wall caused the need to investigate site stability, especially where other fill or waste had also been deposited and the volume of charged waste at the dam wall was unknown. The required nexus between the charged offences and the claimed costs was not proved.

Jurisdiction
Australia
Judgment Date
05 September 2014
Procedural Posture
Class 5 Prosecution / Application to Re Open After Sentence Hearing to Seek Investigation Costs
Outcome
Case re-opened; application for investigation costs refused.
Legal Topics
['investigation Costs' 'protection of the Environment Operations Act 1997 (nsw)' 'nexus Between Charged Offences and Claimed Costs' 're Opening Case']
['environmental Law' 'costs' 'criminal Prosecution'] ['investigation Costs' 'protection of the Environment Operations Act 1997 (nsw)' 'nexus Between Charged Offences and Claimed Costs' 're Opening Case']

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Procedural Posture

Class 5 Prosecution / Application to Re Open After Sentence Hearing to Seek Investigation Costs

Legal Issues

  1. 1 ['Whether the Prosecutor should be permitted to re-open the case to adduce evidence in support of an order for investigation costs.' 'Whether the claimed geotechnical investigation costs were reasonably incurred during the investigation of the offences charged within s 248(1) of the Protection of the Environment Operations Act 1997 (NSW).' 'Whether there was a relevant nexus between the facts pertaining to the charges to which the Defendant pleaded guilty and the costs sought to be recovered.']

Ratio Decidendi

Although the omission to seek investigation costs at the sentence hearing was inadvertent and the case was allowed to be re-opened, the Prosecutor did not establish that the geotechnical site stability costs were reasonably incurred as a consequence of investigating the offences charged. The evidence did not show that the waste transported from the Shell site and deposited on or near the dam wall caused the need to investigate site stability, especially where other fill or waste had also been deposited and the volume of charged waste at the dam wall was unknown. The required nexus between the charged offences and the claimed costs was not proved.

Court Disposition

Case re-opened; application for investigation costs refused.

Orders

  • ['The case is allowed to be re-opened.' 'The Court declines to make an order pursuant to s 248 requiring the Defendant to pay the investigation costs.']