Posted on February 18, 2015 by Frances Tse

Court considers that a ‘stop work notice’ may mean that an owner is not responsible for pollution from premises

A Council’s notice to a landowner to cease all construction and earthworks on a premises may mean that the landowner would no longer be taken to be responsible for pollution from the premises from the time of the notice because the landowner would no longer the ‘occupier’ of the premises within the meaning of s257 of the Protection of the Environment Operations Act 1997 (‘POEO Act’).

In Lismore City Council v Ihalainen (No 2) [2014] NSWLEC 198, the Land and Environment Court in its criminal jurisdiction considered a charge made against the defendant for  an offence under the POEO Act for the pollution of waters.

The Council alleged that the defendant polluted waters of a creek by introducing soil into the waters through sediment-laden stormwater runoff.

The background of the matter is as follows:

• In 2008, the defendant obtained development consent for the developent of a dwelling on a rural property at Terania Creek, NSW.
• The development consent contained conditions requiring the construction of a fire trail and installation of sediment controls. Separate criminal proceedings were commenced by the Council against alleged breaches of those conditions under the s125 of the Environmental Planning and Assessment Act 1979 (‘EPA Act’). Those proceedings were heard together with the proceedings under the POEO Act.
• In March 2012 the defendant commenced construction of the fire trail without first having installed sediment control fences.
• During May 2012, the Council’s development compliance officer inspected the property and requested the defendant to stop the construction works, prepare a sediment and erosion control plan and install sediment and erosion controls.
• A sediment and erosion control plan was prepared which proposed the installation of pipes to divert stormwater runoff to a filter area but this plan was not to the Council officer’s satisfaction.
• On 1 June 2012, the Council officer emailed the defendant stating that the sediment and erosion control plan had insufficient detail, requested a more detailed plan to be provided and ‘requires you to cease all construction and earthworks activities, including the installation of pipes until further notice’ (‘Stop Work Notice’).
• The defendant instructed his contractor to stop all work on the same day.
• On 8 June 2012 the defendant requested the Council officer lift the Stop Work Notice in order to install sand bags but did not receive any reply.
• On 27 June 2012 the alleged pollution event occured during heavy rainfall. The Council officer inspected the property and observed sediment-laden water  entering a nearby creek. The Council officer took water samples during the inspection.

The Court ultimately dismissed the charge because the way in which the Council officer collected water samples on the day of the alleged pollution incident meant that the Council could not prove beyond reasonable doubt that the creek had been polluted.

While it was therefore unnecessary to address the question of whether the defendant caused the pollution, Biscoe J nevertheless made an interesting comment that even if the pollution of waters had been proven, the defendant would not have been taken to have caused the pollution under s257 of the POEO Act.

Section 257(1) of the POEO Act provides that ‘the occupier of premises at or from which any pollution occurs is taken to have caused the pollution’

An ‘occupier’ of premises is defined in the POEO Act as ‘the person who has the management or control of the premises’.

Biscoe J stated that if it had been necessary to decide this point, he would not have considered the defendant to be an ‘occupier’ of the premises. This is because his management or control of the premises was taken away from him by the Stop Work Notice that was given by the Council.

While Biscoe J’s comment was not a deciding factor in the outcome of this case, it opens up the possibility in future proceedings for an argument to be made that an owner or occupier of premises is not automatically taken to be responsible for pollution from his or her premises despite s257 of the POEO Act because they were complying with a ‘stop work notice’ given by a council.

Councils would need to carefully consider the circumstances and effects of giving such notices particularly when it seems that a ‘stop work notice’ does not need to be in a particular form or pursuant to a particular power, such as in this case, where the Stop Work Notice was simply communicated in an email.