Posted on May 12, 2021 by Anna Sinclair 168

Land and Environment Court considers what constitutes the wilful delay or obstruction of an authorised officer

The Land and Environment Court’s decision in McClelland v Environment Protection Authority [2021] NSWLEC 25, considers what constitutes the wilful delay or obstruction of an authorised officer in the exercise of the officer’s powers of investigation, contrary to s211(3) of the Protection of the Environment Operations Act 1997 (POEO Act). This decision confirms that a person may commit an offence where they know that there actions will delay or obstruct an authorised officer exercising their powers, or if they are wilfully blind to that knowledge.

Facts

In October 2018, two EPA officers attended Mr McClelland’s property to investigate a complaint in relation to illegal dumping. Soon after they begun their inspection, Mr McClelland arrived and asked them what they were doing. The EPA officers explained that they were exercising their authorised officer powers under the POEO Act, and had the power to be on the property. Mr McClelland was not satisfied with this explanation and threatened to lock the gate, to which the EPA officers advised that this would likely be an offence under the POEO Act. After further discussions between the parties, Mr McClelland locked the front gates so that the EPA officers could not leave in their car, and called the police. Mr McClelland refused to unlock the gates at the requests of the EPA officers. The EPA officers stopped what they were doing and stayed with their vehicle in accordance with a job safety analysis. Mr McClelland only unlocked the gates once the police arrived at the property.

Mr McClelland was subsequently charged, and convicted in the Local Court for an offence against s211(3) of the POEO Act, which provides that ‘[a] person who wilfully delays or obstructs an authorised officer in the exercise of the authorised officer’s powers [under Chapter 1] is guilty of an offence‘. The Local Court found that Mr McClelland had wilfully delayed the EPA officers in exercising their powers under s198(2) of the POEO Act, namely the power to take and remove samples from the property. Mr McClelland was fined $10,000 and ordered to pay the EPA’s costs of $25,000.

Mr McClelland subsequently appealed to the Land and Environment Court against the conviction and the severity of the sentence, which was heard by Justice Pain.

Appeal against conviction

Mr McClelland appealed against his conviction on the basis that there was insufficient evidence before the Local Court to establish that he ‘wilfully’ intended to delay the EPA officers in the exercise of any specific power by locking the gates. Rather, the evidence established that his intention in locking the gates was to detain the officers until the police arrived to enable him to find out what the officers’ powers were to enter private property, and not to delay them in taking of samples. It was the EPA officers’ decision to pause in their work, but that was not relevant to the intent of Mr McClelland.

Justice Pain accepted the magistrate’s reasoning and conclusions in the Local Court proceedings, and accepted that it was an inevitable conclusion that Mr McClelland intended to delay or at least disturb the EPA officers from doing what it was they were doing when he first arrived. Even if the EPA officers had collected samples they could not have removed them, hence they were delayed in carrying out their functions under the POEO Act as a direct result of Mr McClelland’s actions.

Her Honour further found that Mr McClelland’s aggressive act of locking the front gates, in addition to calling the police and refusing to unlock the gates when asked to do so by the EPA officers created a situation in which the officers determined to follow their job safety analysis which was to remain in or close to their car. It was an inevitable result of Mr McClelland locking the front gates that the EPA officers were delayed in taking and removing samples. Mr McClelland had knowledge that this is what the officers were attempting and he intended through his actions to prevent them, or he was wilfully blind to the consequences of his actions in locking the front gates until the police arrived.

Appeal against sentence

Mr McClelland further appealed against the severity of the $10,000 sentence, arguing that it was manifestly excessive.

Justice Pain considered the objective and subjective factors relevant to sentencing, including that Mr McClelland had acted wilfully, and the principal harm resulting from the offence was impeding the carrying out of the regulatory scheme under the POEO Act, and affecting the integrity of that scheme. Her Honour confirmed that the conviction and fine of $10,000 was appropriate, and dismissed the sentencing appeal. Mr McClelland was also liable for the EPA’s costs of the appeal.

Takeaways

This decision demonstrates the scope of the offence and confirms that a person does not need to directly physically prevent an authorised officer from exercising their powers for them to be wilfully delaying or obstructing an authorised officer in the exercise of the authorised officer’s powers. A person may commit an offence under s211(3) of the POEO Act where the person knows that there actions will delay or obstruct an authorised officer exercising their powers, or if they are wilfully blind to that knowledge.

This case is also a useful reminder that state government and local council officers exercising powers of entry or investigation under legislation (such as the POEO Act or the Environmental Planning and Assessment Act 1979) may have to confront hostile or aggressive people during their investigations that may seek to delay or obstruct their investigations. It is critical from a workplace health and safety perspective that state government agencies and local councils have procedures in place to deal with such incidents, and that the relevant officers are trained in those procedures, and know how to respond to such individuals to ensure their safety.

Please find a link to the decision here.

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