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Environment Protection Authority v Hogan .

Country/Territory
Australia
Type of court
Others
Date
Mar 31, 2008
Source
UNEP, InforMEA
Court name
Land and Environment Court of New South Wales
Judge
Jagot.
Reference number
[2008] NSWLEC 125
Language
English
Subject
Waste & hazardous substances, Environment gen.
Keyword
Offences/penalties Enforcement/compliance Waste management Liability/compensation Transport/storage
Abstract
Riverside Earthmoving Pty Ltd (Riverside) permitted the disposal of virgin excavated natural material (VENM) at its unlicensed waste disposal facility, which was to be used as capping material. Under section 169 of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act), a director or other person concerned with the management of a corporation may be personally liable for environmental offences committed by the corporation. Two exceptions to this liability are: if the person was not in a position to influence the conduct of the corporation, or if the person used all due diligence to prevent the contravention. Management was of the opinion that VENM was not a ‘waste’ as defined by the POEO Act, and hence the unlicensed disposal of VENM did not constitute an offence. In support of his argument he pointed to the fact that Schedule 1 of the POEO Act defines ‘waste facilities’ in a manner that excludes VENM from the calculation of tonnages for various classes of facility. However the court disagreed with this interpretation. Mr Hogan, the General Manager, was found to have ‘a lack of understanding of the system of environmental regulation in New South Wales and his personal responsibilities under the POEO Act as the general manager of a corporation.’ He was therefore held to be personally liable for the offence committed by Riverside. The penalty imposed was $18,000 on Mr Hogan personally. It was held that Riverside had inadequate environmental due diligence procedures to mitigate against committing an environmental offence. This was coupled with ‘insufficient experience’ in managing environmental risk and ‘inadequate training to ensure [environmental] legal compliance.’ While the case considered company director and manager environmental liabilities under New South Wales legislation, the principles it considered are equally applicable to most Australian states and territories.
Full text
COU-156726.pdf