Warringah Council v Koch and Severino Pays/Territoire Australie Type de cour Autres Date Aoû 31, 2006 Source UNEP, InforMEA Nom du tribunal Land and Environment Court of New South Wales Juge Biscoe Numéro de référence NSWLEC 551 Langue Anglais Sujet Eau, Questions juridiques Mot clé Lutte contre la pollution Normes de qualité de l'eau Résumé These two water pollution cases had been heard together. The charge against each defendant was that he committed an offence against section 120(1) of the Protection of the Environment Operations Act 1997 by causing waters to be polluted from land at 48 Myoora Road, Terry Hills. It was alleged that sediment-laden water and suspended solids were pumped from 48 Myoora Road into a watercourse running through the adjoining property. The point of discharge was a small pond. The contravention was alleged to have occurred during the course of construction of a function and reception centre at 48 Myoora Road. These works were authorised under a conditional development consent. The witness for the prosecution, a Catchment Liaison Officer, was of the opinion that the discoloured water which he saw at the commencement point, and which flowed downstream to the gross pollutant trap, emanated from the subject land. To confirm this opinion, he carried out a non-toxic dye test on the watercourse. The court analyzed all elements of section 120 (1) of the Protection of the Environment Operations Act 1997 to determine whether the actual situation fell within the terms of the said section. In order to prove the charges the prosecution had to prove three propositions beyond reasonable doubt: (a) Waters from the construction site on 48 Myoora Road, were discharged via a blue hose into the waters of the watercourse (the discharge issue); (b) The waters thus discharged polluted the waters of the watercourse (the pollution issue); and (c) The defendants caused the pollution of the waters (the causation issue). With regard to the pollution issue and s 120(1) of the Protection of the Environment Operations Act, in order to establish the element of pollution, it was required to prove that the physical, chemical or biological condition of the waters in the watercourse had been changed by the discharge from the blue hose which led from 48 Myoora Road. There was evidence that a system of drainage and sediment control, was employed on 48 Myoora Road and that the water discharging could have been filtered water which had passed through that system. There was no direct evidence of the concentration of suspended solids in the waters discharged from 48 Myoora Road or in the receiving waters. That was because the sample in the test was taken not from the blue hose, but from the commencement point pond, after the water had mixed with the waters in the pond. In addition, there was evidence of alternative sources of waters in the pond. The prosecutor’s pollution case was therefore based on circumstantial evidence. The court referred to another case where it was decided that circumstantial evidence was evidence which proved a fact from which the fact to be proved may be inferred. Circumstantial evidence could prove a fact beyond reasonable doubt only if all other reasonable hypotheses were excluded. This Court had applied that principle in a number of water pollution cases where it had determined that a reasonable hypothesis consistent with innocence did exist. The court analyzed a number of possible alternative sources: Stormwater from the swale, stormwater from the northern easement, or waters seeping through or overtopping the hay bale and silt fence. It was significant that the witness did not take a sample directly from the blue hose which undoubtedly led from the construction site on No 48. Had he done so, there would have been no question as to the source of the water. Under these circumstances, the defendants could adduce evidence in support of hypotheses that the water included waters from other sources that had entered the commencement point pond as a result of storms over the preceding two days. In the result, the court was of the opinion that there were reasonable hypotheses that the sample taken included water from the suggested alternative sources to, and that the prosecutor has not excluded those hypotheses. For these reasons, the prosecution had not proved beyond reasonable doubt that the waters discharged from 48 Myoora Road polluted the waters of the watercourse. Consequently, the prosecution had not proved that the defendants were guilty as charged. The charge against each defendant was dismissed. Texte intégral 17cf010ff9ba1c36ca2571db0012e5b3