Environment Protection Authority v AGL Upstream Investments Pty Ltd [2018] NSWLEC 32

Environment Protection Authority v AGL Upstream Investments Pty Ltd [2018] NSWLEC 32

The summons was not duplicitous. Although the three tanks differed in location, elevation, access and the amount of produced water that escaped, the alleged breach concerned one activity of storing produced water under the licence condition requiring licensed activities to be carried out competently. The tanks were all used for that storage purpose, the events occurred over a short period during the same flood event, and there was commonality in the Defendant's approach to weather, flooding and site monitoring. The differences between tanks were not material to the duplicity question and did not make the alleged conduct disparate in nature and content. Charging three offences would likely...

Jurisdiction
Australia
Judgment Date
16 March 2018
Procedural Posture
Class 5 Prosecution for an Alleged Offence Under S 64(1) of the Protection of the Environment Operations Act 1997 (nsw) / Procedural Ruling on the Defendant's Notice of Motion Dated 13 November 2017 Alleging Duplicity and Seeking Better Particulars and Redrafting of the Summons
Outcome
The Defendant's notice of motion dated 13 November 2017 was dismissed.
Legal Topics
['protection of the Environment Operations Act 1997 (nsw) S 64(1)' 'environment Protection Licence Condition' 'duplicity' 'summons' 'licensed Activities Carried Out in a Competent Manner' 'produced Water Tanks' 'flood Event']
['environmental Law' 'criminal Procedure'] ['protection of the Environment Operations Act 1997 (nsw) S 64(1)' 'environment Protection Licence Condition' 'duplicity' 'summons' 'licensed Activities Carried Out in a Competent Manner' 'produced Water Tanks' 'flood Event']

Case Brief

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Procedural Posture

Class 5 Prosecution for an Alleged Offence Under S 64(1) of the Protection of the Environment Operations Act 1997 (nsw) / Procedural Ruling on the Defendant's Notice of Motion Dated 13 November 2017 Alleging Duplicity and Seeking Better Particulars and Redrafting of the Summons

Legal Issues

  1. 1 ['Whether the summons was duplicitous because it particularised one alleged offence by reference to three separate produced water tanks at MP15, MP16 and EM21.' 'Whether the alleged conduct in relation to the three tanks was one closely related activity of waste water storage during a single flood event or three separate offences requiring separate charges.' 'Whether physical, topographical, access and volume differences between the tanks made the alleged failures disparate in nature and content for the purposes of duplicity.']

Ratio Decidendi

The summons was not duplicitous. Although the three tanks differed in location, elevation, access and the amount of produced water that escaped, the alleged breach concerned one activity of storing produced water under the licence condition requiring licensed activities to be carried out competently. The tanks were all used for that storage purpose, the events occurred over a short period during the same flood event, and there was commonality in the Defendant's approach to weather, flooding and site monitoring. The differences between tanks were not material to the duplicity question and did not make the alleged conduct disparate in nature and content. Charging three offences would likely...

Court Disposition

The Defendant's notice of motion dated 13 November 2017 was dismissed.

Orders

  • ["The Defendant's notice of motion dated 13 November 2017 is dismissed." 'The exhibits may be returned.']