Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie (No 4) [2021] NSWLEC 123

Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie (No 4) [2021] NSWLEC 123

Grafil Pty Ltd operated a waste facility without an environment protection licence, as neither resource recovery exemption applied due to non-compliance with record keeping and absence of requisite planning approval; the offence is of strict liability and low objective seriousness, with no moral culpability or proof of environmental harm, warranting conviction and remediation order for Grafil, and a dismissal without conviction for Mackenzie due to substantial extenuating circumstances.

Jurisdiction
Australia
Judgment Date
05 November 2021
Procedural Posture
Criminal / Sentencing
Outcome
Grafil Pty Ltd convicted; Mackenzie charge dismissed without conviction under s 10(1)(a).
Legal Topics
['waste Management' 'strict Liability Offences' 'sentencing' 'environmental Protection Licences' 'resource Recovery Exemptions' 'asbestos Management']
['environmental Law' 'criminal Law'] ['waste Management' 'strict Liability Offences' 'sentencing' 'environmental Protection Licences' 'resource Recovery Exemptions' 'asbestos Management']

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Procedural Posture

Criminal / Sentencing

Legal Issues

  1. 1 ['Whether Grafil Pty Ltd operated a waste facility without an environment protection licence contrary to s 144(1) POEO Act' 'Whether Robert Mackenzie is liable under special executive liability s 169(1) POEO Act' 'Whether resource recovery exemptions applied' 'Whether conduct caused environmental harm' 'Assessment of objective seriousness and culpability' 'Appropriateness of cap and contain remediation order' 'Appropriateness of s 10(1)(a) dismissal for Mackenzie' 'Allocation of legal and investigation costs']

Ratio Decidendi

Grafil Pty Ltd operated a waste facility without an environment protection licence, as neither resource recovery exemption applied due to non-compliance with record keeping and absence of requisite planning approval; the offence is of strict liability and low objective seriousness, with no moral culpability or proof of environmental harm, warranting conviction and remediation order for Grafil, and a dismissal without conviction for Mackenzie due to substantial extenuating circumstances.

Court Disposition

Grafil Pty Ltd convicted; Mackenzie charge dismissed without conviction under s 10(1)(a).

Orders

  • ['Grafil Pty Ltd convicted of offence under s 144(1) POEO Act.' "Grafil Pty Ltd ordered to pay 25% of EPA's legal costs as agreed or assessed, subject to prior costs order." "Grafil Pty Ltd ordered to pay 25% of EPA's investigation costs ($46,772)." 'Grafil Pty Ltd ordered under s 245 POEO Act to engage...