Posted on May 27, 2011 by

Council prosecuted in relation to threatened species

The recent prosecution of a council regarding threatened species emphasises the need for councils to have in place robust environmental systems, procedures and instructions to ensure that harm to the environment does not occur when performing routine public works.

Facts

Lithgow City Council (Council) was successfully prosecuted in the Land and Environment Court (LEC) for damaging threatened plant species that were listed as ‘endangered’ under the Threatened Species Conservation Act 1995 (TSC Act).

The damage occurred when the Council’s grader and self-propelled vibrating roller ‘cut, pulled up, destroyed, dug up, removed and/or injured’ the plants during unsealed road works to service mitre drains. The works were completed in accordance with the then accepted road maintenance practices of the Council.

In the proceedings, it was agreed that prior to the works:

• the Council did not consider the potential impact of the works on threatened species;
• no on-site assessment was undertaken by any supervisor or manager from Council staff; and
• no environmental assessment or review of environmental factors was undertaken, under Part 5 of the Environmental Planning and Assessment Act 1979 (EPA Act).

At the time of the road works, the Council had a ‘safe work method statement’ for maintenance grading works, but no documented procedure or written instructions for employees concerning site or works assessment, or completion of maintenance works on the road.

After the offence, the Council undertook the following measures:

• identification of threatened species by means of appropriate warning signs;
• instruction of employees that the use of machinery should avoid or minimise damage to roadside vegetation;
• training of employees in the identification of threatened species;
• preparation of standard working procedures for road maintenance works; and
• preparation of a ‘Property Management Plan’ under section 113B of the TSC Act to cover future road works on unsealed roads.

It was conceded by the Council that had these controls been in place at the time of the offence, it would have reduced the damage.

The Council, in its failure to implement these practical measures prior to the offence, failed to control the actions of its employees in carrying out works.

Court’s findings

In sentencing, the LEC found that the Council had not taken its obligations as a local government authority seriously, its environmental record was demonstrably quite poor, and significant environmental harm was done because the Council had failed in its public duty.

The LEC convicted the Council of the offence and fined it $140,000 in total. This penalty was discounted (25%) to $105,000 for an early guilty plea, plus $25,000 for the prosecutors costs.

Systems and controls

As councils are in the business of environmental assessment and regulation, they should be especially mindful of the importance of assessing their own works and activities where the environment may be affected. The Courts have previously held that councils are not entitled to leniency due to their status, and that sentences should be imposed to act as a deterrent to remind authorities of the need to observe maximum safeguards for the environmnet (EPA v Forestry Commission of NSW [2004] NSWLEC 751).

This case is a salient reminder that the carrying out of public works does not absolve a council of its responsibility to observe relevant environmental laws.

Positive steps must be taken by councils to ensure that their activities are conducted in accordance with sound planning and environmental systems and the law. Depending on the nature of the activity, systems may include the implementation of measures such as the following:

• provision of relevant information (including procedures for disseminating new information);
• warning signs;
• instruction, direction, guidance and advice to relevant personnel;
• training and formal induction;
• standard working procedures (incorporating controls to limit potential impacts);
• safe work method statements;
• job safety and environmental analysis;
• environmental management plans;
• property management plans; and
• environmental assessment and/or a review of environmental factors.

Having such systems in place should prevent damage to the environment, but if damage does occur, the existence of the system, and evidence that it had been observed, should reduce any fines imposed by the courts.