Recent Land and Environment Court Sentencing Judgment – Phillip Foxman

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.

 

See https://www.caselaw.nsw.gov.au/decision/57d74b9be4b0e71e17f54104.

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