On
15 September 2016, Justice Sheahan of the NSW Land and Environment Court (LEC) handed down the long awaited
sentencing judgment in the matter of Environment Protection Authority v Foxman
Environmental Development Services; Environment Protection Authority v Botany
Building Recyclers Pty Ltd; Environment Protection Authority v Foxman (No 2)
[2016] NSWLEC 120.
On 22 December
2011 the NSW Environment Protection Authority (EPA) brought six charges against the Defendants and were successful in its
prosecution. The Defendants included:
-
Foxman Environmental Development
Services Pty Ltd;
-
Botany Building Recyclers Pty
Ltd; and
-
Mr Philip Foxman
Briefly, it
was found that waste material comprising processed construction and demolition
waste and asbestos, was transported from Botany Building Recyclers Pty Ltd
materials processing facility at Banksmeadow to 76 hectares of land known as
“Foxman’s Valley” and owned by Foxman Environmental Development Services Pty
Ltd in the Wollondilly Shire.
Foxman Environmental Development Services Pty Ltd
had purchased the land with the intention of it becoming Mr Foxman’s retirement
home and a place where roadbase could be developed. Mr Foxman conceded that he
was the “directing mind and will” of both the other Defendants.
The charges
laid against the Defendants by the EPA were for:
-
Using land as a waste facility
without lawful authority in contravention of section 144(1) of the Protection of the Environment Operations Act
1997 (NSW) (POEO
Act); and
-
Causing waste to be transported
to a place that could not lawfully be used as a waste facility in contravention
of section 143(1) of the POEO Act
Each of the
penalties described under the POEO Act carry a $250,000 fine for an individual
and a $1,000,000 fine for a corporation as well as daily penalties under
section 144 of the POEO Act where the offence continues in the amount of $60,000.
In the
sentencing judgment, Justice Sheahan stated that:
“Foxman
(directly, and as the controlling mind of his companies) clearly intended to transport
the offending material to Foxman’s Valley, and have it placed at particular
locations on that property.” [68]
“He was
fairly well informed of the detailed regime covering waste disposal and
exemptions, and admitted at the trial some consciousness of his material’s
non-compliance with that regime, but he considered the regime impractical and
too strict, and structured his operations accordingly.” [69]
“He
wanted, at the same time, to improve his proposed retirement property, to
maximise the capacity of his fee-charging Banksmeadow plant, and to develop at
Foxman’s Valley a profitable roadbase product, avoiding the payment of waste
levies (estimated to amount to $936,510.00).” [70]
“The major criminality in this
case is on the part of Foxman himself. He was deeply, and personally, involved
in every aspect of the behaviour proven against the two companies he dominated,
as well as himself.” [118]
“The financial penalty to be
imposed has to be proportionate to the proven criminality, viewed as a whole, but
the major burden should fall on Foxman, as the author and chief manager of the
scheme.” [121]
The orders of
the LEC are set out in summary below.
Total fines for offences
Foxman Environmental Development Services Pty Ltd $100,000
Botany Building Recyclers Pty Ltd $40,000
Phillip Foxman $250,000
Additional financial penalties
Prosecutor’s legal costs $500,000
(estimate)
Investigators Costs $4,646
The total
costs liable to be paid by Mr Foxman is approximately $900,000.
Other orders
Publication Order in the Sydney Morning Herald and Inside Waste Magazine
Clean up order within 90 days of the date of the order. At the trial, Mr
Foxman estimated that it could cost between $10-15 million to comply with the
clean-up notice.
The rules and
regulations that Mr Foxman believes are “too strict” and “impractical” [see para 75] but are in place to protect the environment, have now arguably caught up
with him.
Some may
question whether the penalty imposed is enough against Mr Foxman personally as
the $250,000 penalty (which is the maximum amount that can be penalised in the
case of an individual for contravention of section 143 or 144 of the POEO Act)
is in fact made up of three separate offences against both section 143 and 144
of the POEO Act.
The LEC did
have the power to order a higher penalty against Mr Foxman, but refrained from
doing so.
Perhaps, if
the protocol for calculating the monetary benefits that is supposedly being
developed by the EPA in accordance with section 249 of the POEO Act was in
place, the penalty imposed may have been much greater.
In any event,
this sentencing judgment should deter other operators within the waste industry
from having a complete disregard for the rules and operating as they see fit,
and may assist in creating a more level playing field for all.
If you have any queries, please contact G&B Lawyers | Kim Glassborow (Partner) on 0481 287 528 or kglassborow@gandblawyers.com.au
