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Ryding v Kempsey Shire Council [2008] NSWLEC 306 (11 November 2008)

Last Updated: 14 November 2008

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Ryding v Kempsey Shire Council [2008] NSWLEC 306


PARTIES:
APPELLANT
Richard Ryding

RESPONDENT
Kempsey Shire Council


FILE NUMBER(S):
60005 of 2008


CATCHWORDS:
Appeal :- appeal on conviction and sentence from local court - collateral challenge to validity of clean up notice on judicial review grounds - whether jurisdictional facts satisfied - whether procedural fairness accorded before issue of the notice - whether reasonable measures required - appeal on conviction and sentence dismissed


LEGISLATION CITED:
Crimes (Appeal and Review) Act 2001 s 31, s 37, s 39
Crimes (Sentencing Procedure) Act 1999 s 10
Protection of the Environment Operations Act 1997 s 91, s 93, s 94
Protection of the Environment Operations (General) Regulation 1998 cl 60

CASES CITED:
Advanced Arbor Service Pty Ltd v Strathfield Municipal Council [2006] NSWLEC 485
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223
Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Cliftleigh Haulage Pty Ltd v Byron Shire Council [2005] NSWLEC 692
Gray v Woollahra Municipal Council [2004] NSWSC 112
Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1998) 45 NSWLR 661
Liverpool City Council v Cauchi [2005] NSWLEC 675; (2005) 145 LGERA 1
Pace Farm Eggs Products Pty Limited v Newcastle City Council  [2006] NSWCCA 403 ; (2006) 151 LGERA 260


CORAM:
Pain J

DATES OF HEARING:
5 November 2008

JUDGMENT DATE:
11 November 2008


LEGAL REPRESENTATIVES

APPELLANT
Mr T S Hale SC
SOLICITORS
Falvey Associates

RESPONDENT
Mr S Docker
SOLICITORS
Wrights Legal



JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES


Pain J


11 November 2008


60005 of 2008 Ryding v Kempsey Shire Council


JUDGMENT

1 Her Honour: On 12 March 2008, the Local Court at Kempsey found the Appellant guilty of failing to pay the prescribed fee within 30 days of being given a clean up notice issued under s 91 of the Protection of the Environment Operations Act 1997 (the POEO Act). The notice required erosion control measures to be carried out at a property at Gregory Street, South West Rocks (the property). The offence was a breach of s 94(4) of the POEO Act. The Local Court found the charge proved but recorded no conviction against the Appellant pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act) on the basis that the Appellant enter into a good behaviour bond for 12 months.

2 The Appellant has appealed to this Court pursuant to s 31(1) of the Crimes (Appeal and Review) Act 2001 (the Appeal and Review Act) against both the conviction and the sentence. Subsections 37(1) and (2) of the Appeal and Review Act provide:

(1) An appeal is to be dealt with by way of rehearing on the basis of certified transcripts of evidence given in the original Local Court proceedings, except as provided by section 38.

(2) Fresh evidence may be given, but only by leave of the Land and Environment Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given.
3 Section 39 of the Appeal and Review Act provides:
39 Determination of appeals

(1) The Land and Environment Court may determine an appeal against conviction:

(a) by setting aside the conviction, or
(b) by dismissing the appeal.

(2) The Land and Environment Court may determine an appeal against sentence:

(a) by setting aside the sentence, or
(b) by varying the sentence, or
(c) by dismissing the appeal.

...

Appeal against conviction
4 While no conviction was recorded against the Appellant, for the purpose of the appeal the Appellant has the same right as if he had been convicted of the offence, s 10(5) of the Sentencing Procedure Act. The order that the bond be imposed pursuant to s 10(1)(b) of the Sentencing Procedure Act is also a sentence for the purpose of the Appeal and Review Act by virtue of the definition of sentence in s 3(1) of the Appeal and Review Act. The nature of a rehearing in an appeal of this nature was identified in Cliftleigh Haulage Pty Ltd v Byron Shire Council [2005] NSWLEC 692 at [17]- [20] by Talbot J. His Honour noted at [18]:
In Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1998) 45 NSWLR 661 James J after referring to Camilleri’s Stock Feeds [Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683] reiterated at 678

...where... there is a challenge to correctness of the trial judge’s ultimate conclusion, it is not incumbent on the appellant to show that such conclusion was not open to the trial court in the sense of being a conclusion to which on the evidence, it should not have come. It is merely necessary to persuade this Court on a review of the evidence that guilt is not, to the necessary standard, proved by the prosecutor.

5 I need not find error in the magistrate’s decision as part of this appeal determination.

Relevant legislation
6 Section 89 of the POEO Act states that a clean up notice means a notice under Pt 4.2. Part 4.2 contains s 91 – s 94. Section 91 of the POEO Act provides:
91 Clean-up by occupiers or polluters

(1) Notices

The appropriate regulatory authority may, by notice in writing, do either or both of the following:

(a) direct an occupier of premises at or from which the authority reasonably suspects that a pollution incident has occurred or is occurring,
(b) direct a person who is reasonably suspected by the authority of causing or having caused a pollution incident,

to take such clean-up action as is specified in the notice and within such period as is specified in the notice.

Note. pollution incident and clean-up action are defined in the Dictionary.
...

(5) Offence
A person who, without reasonable excuse, does not comply with a clean-up notice given to the person is guilty of an offence.

Maximum penalty:

(a) in the case of a corporation—$1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or
(b) in the case of an individual—$250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.


7 Section 94 of the POEO Act provides:
94 Fee

(1) The purpose of this section is to enable a regulatory authority to recover the administrative costs of preparing and giving clean-up notices.

(2) A person who is given a clean-up notice by a regulatory authority must within 30 days pay the prescribed fee to the authority.

(3) The regulatory authority may:
(a) extend the time for payment of the fee, on the application of a person to whom subsection (2) applies, or
(b) waive payment of the whole or any part of the fee, on the authority’s own initiative or on the application of a person to whom subsection (2) applies.

(4) A person who does not pay the fee within the time provided under this section is guilty of an offence.

Maximum penalty: 200 penalty units.


8 The fee prescribed by cl 60 of the Protection of the Environment Operations (General) Regulation 1998 is $320.

9 The Appellant mounted a collateral challenge to the validity of the clean up notice before the Local Court. If successful that would have resulted in the clean up notice being held to be invalid with the effect that no notice was served. Consequently there could be no breach of s 94(4) because no obligation to pay the prescribed fee could arise. The magistrate accepted that such a challenge was available but held that the notice was validly issued and that a breach of s 94(4) had therefore occurred. It was also common ground in this appeal that a collateral challenge to the validity of the clean up notice on the basis of judicial review grounds was available; see Gray v Woollahra Municipal Council [2004] NSWSC 112 and Liverpool City Council v Cauchi [2005] NSWLEC 675; (2005) 145 LGERA 1 at [41]- [42]. That is also the basis of the Appellant’s appeal proceedings before me. There is otherwise no challenge to the issuing or service of the written clean up notice dated 17 August 2006.

Evidence
10 The evidence consisted of the transcript of proceedings before the Local Court on 12 March 2008 and the exhibits before that court. These consisted of witness statements by Mr Nelson, the Council officer who issued the clean up notice (exhibit 1), and Mr Davies, another council officer who took photographs of the property on 16, 18 and 21 August 2006 (exhibit 2), a copy of those photographs (exhibit 3) and a weather report (exhibit 4). Additional evidence rejected by the magistrate was also sought to be relied on by the Appellant’s counsel pursuant to s 37(2) of the Appeal and Review Act but I did not grant that application for the reasons given in a separate ex tempore decision delivered in the course of the hearing.

11 The evidence discloses that, following a complaint to the Respondent, Mr Nelson attended the property in the afternoon of 16 August 2006. His witness statement says:
3. On or about 16 August, 2006 as a result of my employment I became aware that Council received a complaint in relation to works being done at the site of the old school house at Gregory Street, South West Rocks. As a result of that complaint I drove to the site of the old school house at Gregory Street, South West Rocks. Mr Michael Davies, an employee of Kempsey Shire Council came with me. When I arrived at the site I could see from the street that the site had apparently been cleared of various trees and vegetation. I saw that trees and vegetation had been uprooted from the ground and put into stockpiles. I saw substantial amounts of disturbed and upturned soil with no grass or vegetation holding the soil to the ground. I saw that some limbs had been removed from various trees, and that various trees had been damaged. I saw various items of heavy machinery and trucks on the site.

4. I then entered the site with Mr Davies and approached one of the workmen and said words to the following effect: “Who’s in charge here?” The workman directed us to the defendant Mr Richard Ryding.

5. I had a conversation with Mr Ryding in words to the following effect:

I said “We are Kempsey Shire Council Officers. Is it okay for us to come onto the site and take photos?”

He said “Yes”.

6. Mr Davies and I then walked around the site with Mr Ryding. I saw Mr Davies taking photographs at the site.

7. As a result of what I saw on site I suspected that it was likely that in the event of wind or rain the disturbed and upturned soil was likely to be washed off the site into neighbouring land and/or into the nearby waterway. I was a particularly [sic] concerned about the disturbed and upturned soil escaping from the south west corner of the site. After forming this suspicion I then had a conversation with Mr Ryding in words to the following effect:

I said “There are no controls in place to stop that earth washing away if it rains”.

He said “I’ll do that after we have finished the work. I’m going to put up controls and use geo-tech style fabric. I am also going to mulch that vegetation.”

I said “Those controls needed to be in place before to you [sic] did these works. I am issuing you with a verbal clean-up order. I don’t think I will fine you but that will depend of what my manager says. I’ll follow this order up with a written clean-up notice.”

12 He issued a written clean up notice to Mr Ryding the Appellant on 17 August 2006. The clean up notice stated:
I, Grant Nelson, an authorised officer under Section 187 of the Protection of the Environment Operations Act 1997 [“the Act”], conducted an inspection in accordance with Section 196 of the Act, of the premises to which this notice refers at 3:00 pm on the 16 August 2006 and observed areas of vegetation clearing on the subject premises. The resultant exposed material (soil/earth) is in such a position as could pollute adjacent properties. No erosion and sediment controls were in place, to prevent such a pollution incident from occurring.

Kempsey Shire Council, being the Appropriate Regulatory Authority under the Act, hereby directs that you, Richard Ryding (as the person responsible for the vegetation clearing) or a nominated representative, take the following clean-up action by the stated times and dates. This direction considered a follow-up to directions verbally provided to you during the site inspection on the 16th August 2006:
(a) Install and maintain sediment control fencing and any other controls necessary to prevent soil/exposed earth from leaving the premises or entering the local stormwater system by 5.00 p.m. Friday 18 August 2006. Guidelines for sediment and erosion control are contained in Council’s DCP no. 36 Guidelines for Engineering and Subdivision. Relevant material has been attached for your information.

Note: All sediment control fencing is to be trenched into the ground a minimum of 200mm.

(b) To ensure long term stability of the disturbed area you shall seed the disturbed area with a quick growing grass seed mix, alternatively the area shall be suitably mulched. This action shall be completed by 5.00 p.m. Friday 18 August 2006.
...


The clean up notice stated on the last page that the administrative fee of $320 may be waived if an application to do so is made or the time for payment may be extended. This is provided for by s 94(3) of the POEO Act.

13 It is not disputed that the work being carried out by the Appellant on the land was essentially completed when Mr Nelson went onto the property on 16 August 2006. There is no evidence that Mr Nelson was aware of that fact. There is also oral evidence in the transcript at p 31 suggesting that the Appellant put in place the sediment fencing required by the clean up notice dated 17 August 2006 in the afternoon of 16 August 2006 after Mr Nelson left the site. There is also evidence from the Appellant in the transcript at p 31 suggesting that the laying of mulch commenced and was completed on 16 August 2006. The photographs taken by Mr Davies show that on 21 August 2006 there were still large areas of the property that did not have mulch laid down however.

(i) Failure to be satisfied about jurisdictional facts
14 The grounds of challenge to the clean up notice included that Mr Nelson had failed to be satisfied of two matters that were jurisdictional facts and therefore the clean up notice was invalid. Section 91 states that a notice can be issued by a regulatory authority under subsection (1)(a) to a person who is reasonably suspected of causing or having caused a pollution incident to undertake clean up action. There is no dispute that Mr Nelson is properly authorised to act on behalf of the regulatory authority. It is not disputed that the Appellant was the person who undertook the tree clearing activity which gave rise to the clean up notice being issued. The Dictionary to the POEO Act defines “pollution incident” as:
... an incident or set of circumstances during or as a consequence of which there is or is likely to be a leak, spill or other escape or deposit of a substance, as a result of which pollution has occurred, is occurring or is likely to occur. It includes an incident or set of circumstances in which a substance has been placed or disposed of on premises, but it does not include an incident or set of circumstances involving only the emission of any noise.

The Dictionary defines “clean-up action, in relation to a pollution incident” as:
(a) action to prevent, minimise, remove, disperse, destroy or mitigate any pollution resulting or likely to result from the incident,
...

“Substance” is also defined as “matter or thing”. “Pollution” is defined as “(a) water pollution, or (b) air pollution, or (c) noise pollution, or (d) land pollution”. “Water pollution” is defined as
...

(c) placing in or on, or otherwise introducing into or onto, the waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, that is of a prescribed nature, description or class or that does not comply with any standard prescribed in respect of that matter,

and, without affecting the generality of the foregoing, includes:

(d) placing any matter (whether solid, liquid or gaseous) in a position where:
(i) it falls, descends, is washed, is blown or percolates, or
(ii) it is likely to fall, descend, be washed, be blown or percolate,
into any waters, onto the dry bed of any waters, or into any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted, or

...

“Land pollution” is defined as:
land pollution or pollution of land means placing in or on, or otherwise introducing into or onto, the land (whether through an act or omission) any matter, whether solid, liquid or gaseous:

(a) that causes or is likely to cause degradation of the land, resulting in actual or potential harm to the health or safety of human beings, animals or other terrestrial life or ecosystems, or actual or potential loss or property damage, that is not trivial, or
(b) that is of a prescribed nature, description or class or that does not comply with any standard prescribed in respect of that matter,

but does not include placing in or on, or otherwise introducing into or onto, land any substance excluded from this definition by the regulations.


(a) No likelihood of land pollution – jurisdictional fact
15 The Appellant argued that the basis for issuing the clean up notice was that land pollution was going to occur because it refers to pollution of adjacent properties in the first paragraph (see extract at par 12) and that means land pollution. In order to issue a notice on that basis, Mr Nelson had to reasonably suspect that the soil/earth on the subject land was likely to cause degradation of the adjoining land resulting in actual or potential harm in accordance with the definition of land pollution in the POEO Act (see par 14). There was no basis on which he could have concluded that land pollution as defined in the POEO Act was likely to occur.

Finding
16 There is no specific form for a written clean up notice identified in the POEO Act or Regulation except that s 91(1) refers to clean up action specified in the notice and to the period specified in the notice. As submitted by the Respondent and as is clear from the terms of the clean up notice issued, the erosion control measures specified are directed to the prevention of water pollution. The POEO Act or Regulation does not specify that the type of pollution to be addressed must be identified in a clean up notice. The notice issued by Mr Nelson clearly contemplates a likelihood of water pollution as defined in the dictionary to the POEO Act given that the measures described are to prevent soil leaving the premises and entering the local stormwater system. The fact that Mr Nelson referred in the opening paragraph of the notice to pollution of adjacent properties, which is said by the Appellant to refer to the definition of land pollution in the POEO Act, does not mean the notice must be directed to land pollution only. While the opening words refer to pollution of adjacent properties that is general wording which could cover a range of pollution, including water pollution.

17 Clean up notices while provided for under statute are not intended to be drafted by lawyers but by officers of a regulatory authority who may or may not have legal training. Provided the notice is unambiguous and clear in what it seeks to achieve, as this does, an approach akin to strict legal drafting should not be applied. That imposes an unrealistic burden on those drafting such notices. The Appellant is unsuccessful on this ground.

(b) No reasonable suspicion of water pollution – jurisdictional fact
18 A further jurisdictional fact said not to be satisfied by the Appellant was that there was no basis on which Mr Nelson could have reasonably suspected that pollution was likely to occur when he visited the property on 16 August 2006 and when he issued the clean up notice on 17 August 2006. There was no rain on 16 August 2006. The Appellant told Mr Nelson that he was going to put up controls and use geo-tech style fabric and mulch when the work was completed. The clearing work was almost complete when Mr Nelson came onto the site. The measures required by the clean up notice were undertaken after Mr Nelson left the site on the same day. It should have been obvious to Mr Nelson that the works and therefore the erosion control measures would be implemented either that day or shortly thereafter. The Appellant told Mr Nelson that it was impossible to erect sediment control fences when the whole property was covered by camphor laurel trees (transcript p 28). At the time the clean up notice was issued on 17 August 2006 there was no possibility of a pollution incident occurring because all the erosion control measures specified in the notice were in place.

19 In order to have a reasonable suspicion Mr Nelson had to be aware of all reasonable facts, including by making proper inquiries about what and when erosion control measures were to be implemented. He failed to ask the Appellant when he was going to implement erosion control measures. If he had asked he would have been told that was to be done that day.

20 The Respondent submitted that there was clear evidence on which Mr Nelson was able to form a reasonable suspicion that a pollution incident had occurred, as defined in the POEO Act. It includes circumstances where there is likely to be an escape of a substance as a result of which pollution has occurred or is likely to occur. Pollution includes placing matter where it is likely to be washed or blown into any water, drain or gutter designed to receive stormwater. “Likely” was held by the Court of Appeal in Pace Farm Eggs Products Pty Limited v Newcastle City Council  [2006] NSWCCA 403 ; (2006) 151 LGERA 260 at  [54]  – [69] per Handley JA, Kirby J concurring, to mean a real and not remote chance or possibility, rather than more probable than not. That Mr Nelson was able to reach such a suspicion is clear from his witness statement where he states what he saw when he arrived at the property and as shown in the photographs taken on 16 August 2006 by Mr Davies in exhibit 3. There were large areas of exposed soil and fallen vegetation including trees. The site was sloping, steeply in some places and a waterway and drain were in close proximity. There were no measures in place to control erosion when he arrived. He stated that he considered:
it was likely that in the event of wind or rain the disturbed and upturned soil was likely to be washed off the site into neighbouring land and/or into the nearby waterway. (exhibit 1).

His evidence should be accepted in the absence of any challenge in the Local Court. The measures put in place after Mr Nelson left the property support the measures required in the clean up notice. The soil had been placed so that it was likely to be washed or blown into the drain and/or waterway and there was a set of circumstances where it was likely that soil would escape to the drain.

21 It is Mr Nelson’s intentions when issuing the clean up notice that are relevant not those of the Appellant. If the Appellant’s argument is accepted anybody could avoid a clean up notice simply by promising to do the necessary work. The argument that it was impossible to erect a sediment fence earlier is irrelevant because the relevant time was when Mr Nelson inspected the site on the afternoon of 16 August 2006 and it was not impossible at that stage.

Finding
22 I essentially agree with and adopt the Respondent’s arguments as set out at par 20 – 21. Further, I would expect that the formation of a reasonable suspicion of a pollution incident must be arrived at close to the time of issuing a clean up notice. Whether that has occurred must depend on the circumstances of a particular case.

23 The decision to issue the notice was made by Mr Nelson at 3pm on 16 August 2006 before the erosion controls were put in place on the property. That is reflected in the opening paragraph of the notice. In Mr Nelson’s witness statement, extracted in part at par 11, he issued a verbal clean up order on 16 August 2006 and said that he would follow that order up with a written clean up notice. Verbal clean up orders are provided for by s 93 of the POEO Act. Section 93(4) states that such directions have the same effect as a written notice. He issued the written clean up notice the subject of these proceedings on 17 August 2006. While there was some debate about whether the verbal direction on 16 August 2006 was a valid clean up notice because it lacked a time frame in which to do the work, I do not need to resolve that issue. Mr Nelson issued a verbal order, confirming that he arrived at a reasonable suspicion that a pollution incident as defined in the POEO Act would occur at 3pm on 16 August 2006. That suspicion was the foundation for issuing the written clean up notice the next day. There is no evidence that Mr Nelson knew the work had been completed when he issued the written notice on 17 August 2006. The Appellant did not tell him. There was no obligation on him to further enquire after the visit on 16 August 2006 about whether measures had been implemented. The Appellant is unsuccessful on this ground.

(ii) Failure to accord procedural fairness
24 In the course of oral submissions the Appellant’s counsel also relied (without notice) on an additional ground of failure to accord procedural fairness, relying on Cauchi. In Cauchi McClellan J held that a s 91 clean up notice was invalidly issued because procedural fairness had not been accorded to the recipients of the notice. The recipients were not told that the council intended to issue a clean up notice so that they could make submissions before that occurred. The lack of procedural fairness alleged by the Appellant was Mr Nelson failing to ask the Appellant when the erosion control measures of installing sediment fences and mulching were intended to be put in place.

Finding
25 I agree with the Respondent’s submission that there was no lack of procedural fairness in this matter. Whether there is a breach of procedural fairness must always depend on the particular circumstances and the statutory context for the issuing of clean up notices. That context was usefully discussed in Cauchi at [24] – [25] where his Honour noted that there is no right of appeal against a clean up notice but that it could be applied in a range of circumstances including emergency situations. McClellan J also stated at [53] that he was not establishing a statement of general application in relation to the obligation to accord procedural fairness because of the wide range of circumstances in which such notices are issued. I consider the circumstances of that case are quite different to this matter. In Cauchi very large amounts of fill were brought on to a property over an extended period which was very costly to remove. This case concerns straightforward erosion control measures which the Appellant told Mr Nelson he intended to implement at the end of the job.

26 In this case according to Mr Nelson’s witness statement set out in part at par 11, Mr Nelson attended the site and saw it was in a state which gave rise to a reasonable suspicion that pollution was likely to occur. He spoke to the Appellant and raised his concerns with him. The Appellant had the chance to respond and did so. The circumstances do not suggest there was a further obligation on Mr Nelson to inquire when the erosion control measures would be put in place. It is not obvious that even if he had and was told it would be done that day that would suggest he should not have issued the clean up notice. The effect of the notice is to require preventative action in a certain time frame. If the Appellant was going to do the work anyway it placed an obligation on him to do it in a certain time. If the Council officer has formed a reasonable suspicion of a pollution incident occurring then he is able to issue a notice if he considers it necessary to do so.

27 The POEO Act does not specify any particular procedures must be followed subject to the general requirement that procedural fairness must be accorded. There is no obligation on Mr Nelson to provide an opportunity to the Appellant to undertake the measures and return to establish that these have been undertaken before deciding to issue a notice. Such an obligation would place an unworkable burden on local council officers exercising their powers to issue a clean up notice.

28 To the extent there is an unreasonable burden placed on the recipient of the clean up notice by the imposition of the administrative fee that can be alleviated by applying for time to pay or for a fee waiver under s 94(3). The Appellant is unsuccessful on this ground.

(iii) Notice issued beyond power
29 The Appellant argued that the issuing of a clean up notice was beyond power if it required unreasonable clean up action when the terms of the statute are considered. Section 91(1) refers directly to clean up action where a regulatory authority reasonably suspects that a pollution incident has occurred. “Reasonably suspected” in s 91 suggests that the action must be reasonable in all the circumstances. Further the clean up action must not be manifestly unreasonable in the Wednesbury sense; see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223. Mr Nelson failed to properly exercise his discretion due to his lack of experience or understanding of sediment fencing. His oral evidence in the Local Court was that he had no experience in constructing sediment fences. In the conversation he had with the Appellant when he attended the property on 16 August 2006 he referred to the need for the installation of fences before the Appellant did the works but that was physically impossible to achieve given the presence of camphor laurel trees.

30 The Respondent argued that the Appellant must overcome a high hurdle to establish the requisite level of unreasonableness. There is no basis to argue the measures required by the notice were unreasonable. They were clearly considered necessary by both Mr Nelson and the Appellant who intended to implement them, according to what he told Mr Nelson. It is irrelevant to consider whether they were impossible to implement beforehand, rather Mr Nelson arrived to find that none were in place. At the time he formed the view that they were necessary the measures could have been implemented.

Finding
31 For the reasons stated by the Respondent (par 30) this ground also fails. Mr Nelson expressed the view to the Appellant that the erosion control measures should have been put up earlier, which view the Appellant contests on the basis that was not physically possible to achieve. As submitted by the Respondent, the measures were able to be implemented at the time Mr Nelson attended the property on 16 August 2006. The measures required in the notice are not unreasonable in the statutory context and/or in a Wednesbury sense in these circumstances. The Appellant is unsuccessful on this ground.

32 The notice is valid and a breach of s 94(4) by the Appellant occurred. There is no basis on which to overturn the conviction of the Local Court. The appeal against conviction is dismissed.

Appeal against sentence
33 The Appellant also argued that the sentence imposed by the magistrate was too harsh and asked that the sentence be set aside. His counsel argued that no behaviour bond should be imposed. The offence was trivial and there is no evidence of environmental harm. The Appellant wanted to engage in a collateral attack on the clean up notice because he did not believe it should have been issued.

34 The Respondent referred to sentencing principles in s 3A of the Sentencing Procedure Act, Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 and s 241 of the POEO Act which identifies matters to be considered in imposing penalty. The maximum penalty is 200 penalty units under s 94 of the POEO Act, $22,000 as one penalty unit equals $110 under s 17 of the Sentencing Procedure Act. This is a substantial penalty demonstrating the legislature does consider it is important. There is no environmental harm caused by the offence, which is an objective and mitigating factor. However in terms of the Appellant’s state of mind, he deliberately chose not to pay the fee. Nor did he apply to waive the fee despite this being referred to by Mr Nelson on 18 August 2006 in conversation with the Appellant. There is a need for deterrence in relation to upholding the integrity of the planning and development system; see Advanced Arbor Service Pty Ltd v Strathfield Municipal Council [2006] NSWLEC 485.

35 Subjective factors which favour the Appellant are the lack of prior convictions from which the Court may infer he is of good character. He has not shown remorse however. Further, the Appellant could have avoided committing the offence by paying the fine or applying for it to be waived.

Finding on sentence
36 The Appellant has not placed before me any material specific to the sentencing considerations identified in s 21A of the Sentencing Procedure Act or in s 241 of the POEO Act. It is agreed there has been no environmental harm caused as a result of the offence. Essentially his counsel has made brief submissions that the magistrate imposed an unnecessarily harsh sentence because the offence is trivial. While I must consider this matter anew in this appeal it is instructive to consider the magistrate’s reasoning, particularly as there is no material before me that was not before the magistrate. The magistrate’s reasons for imposing the good behaviour bond of 12 months was that the Appellant was continuing to undertake similar work and an element of deterrence was necessary. “The intention... is to regulate and ensure that he complies with EPA requirements throughout the business that he conducts in this area” (transcript p 39).

37 There is nothing presented to me by the Appellant which suggests I should overturn the sentence imposed by the magistrate. As submitted by the Respondent the maximum penalty does suggest the offence is not trivial albeit that the amount of the clean up notice administrative fee is relatively small. The aim of clean up notices is clearly to require prompt action to be taken to protect the environment and to enable a regulatory authority such as local council to cover the cost of issuing such notices. The notices are an important part of the regulatory framework for environmental protection under the POEO Act. There was a deliberate decision by the Appellant not to pay the fee. He continues in the same area of work as gave rise this offence.

38 There is utility in the magistrate’s decision to require a good behaviour bond of 12 months in these circumstances and I do not consider it is harsh. An order discharging the person on condition of the imposition of a good behaviour bond under s 10(1)(b) of the Sentencing Procedure Act may be made if the Court is satisfied under s 10(2) that it is inexpedient to inflict any punishment other than nominal punishment (subsection (a)) or that it is expedient to release the person on a good behaviour bond (subsection (b)).

39 Another matter suggesting I should not reduce the sentence imposed is that the Appellant did not apply for a waiver of the administrative fee as provided under s 94(3) of the POEO Act. This was specifically referred to by Mr Nelson in a conversation with the Appellant on 18 August 2006. It is also stated on the last page of the clean up notice he received. If his primary objection to the notice was the payment of the administrative fee, as his counsel submitted, that was an obvious avenue he failed to avail himself of. There is no explanation of why he did not apply for a waiver. Rather he has pursued a collateral attack on the notice as a point of principle and has been unsuccessful.

40 The appeal against sentence should be dismissed.

Costs
41 Under s 49(4) of the Appeal and Review Act the Court can order costs as seem just. The Respondent has argued that if the appeal fails costs should follow the event. The Appellant’s counsel has essentially agreed with that proposition. Section 70 concerning limitations on the award of costs against public prosecutors is not relevant. Under s 72 of the Appeal and Review Act the Court must order costs be paid to the registrar of the original Local Court within a stated time. In the absence of any circumstance suggesting that costs should not follow the event, the Appellant having been entirely unsuccessful should pay the Respondent’s costs of these proceedings. I will allow two months (60 days) to pay those costs to the Kempsey Local Court.

Orders
42 The Court makes the following orders:
1. The appeal against conviction is dismissed.
2. The appeal against sentence is dismissed.
3. The Appellant is to pay the Respondent’s costs of the appeal as agreed or assessed to the registrar of the Kempsey Local Court within 60 days of the amount of costs being either agreed or assessed.