In brief

The case of Chief Executive v Di Carlo [2019] QPEC 40 concerned an application for enforcement orders commenced by the Department of Environment and Science (Department) against a tenant (Tenant) who allegedly failed to comply with an Environmental Protection Order (EPO) and allegedly caused serious and material environmental harm. 

The Department sought relief under section 505(5) of the Environmental Protection Act 1994 (EPA) to remedy or restrain the Tenant from further commission of an offence. 

The Court found that the relief sought by the Department ought to be granted and held that the Tenant committed an offence by failing to comply with the EPO under section 361 of the EPA.

Background

The subject land is located in a developed industrial area at Grindle Road, Rocklea, and is subject to a tenancy agreement under which the Tenant is a lessee. 

A company, for which the Tenant was a Chief Executive Officer in 2015, applied to the Department for an environmental authority for two environmentally relevant activities on the subject land, namely tyre recycling and transporting tyres. Subsequently, the Department issued the environmental authority for the environmentally relevant activities. 

Proceeding the issuance of the environmental authority, the Tenant began to transport and store tyres on the subject land.

The tyres stored on the subject land have been the subject of two fires. After the first fire, the Queensland Fire and Emergency Service issued a requisition to the Tenant requiring him to take steps to reduce the risk of tyre fires. After the second fire, the Department issued an EPO requiring the Tenant to establish and maintain a 10 metre firebreak around the entire boundary of the subject land and to conform to specific storage and stacking requirements. The second fire was the largest of the two fires and resulted in approximately $68,000 of remedial costs. 

The Department alleged that the Tenant had failed to comply with the EPO and therefore had committed an offence under section 361 of the EPA. Additionally, the Department alleged that the Tenant was guilty of unlawfully causing serious and material environmental harm under section 437 and section 438 of the EPA. 

Issues

The Court considered the following issues:

  • whether failing to comply with the EPO constituted the commission of an offence under section 361 of the EPA;
  • whether the Tenant is a "related person" to respond to the EPO under section 363AB of the EPA;
  • whether the Tenant has committed an offence under sections 437 and 438 of the EPA; 
  • whether the Court should make an order under section 505(5) of the EPA to remedy and restrain the Tenant from committing an offence.

Legislative framework 

Section 361 of the EPA relevantly states that it is an offence to not comply with an EPO, and that the recipient of an EPO must not wilfully contravene it. 

Sections 437 and 438 of the EPA make it an offence to wilfully cause serious or material environmental harm respectively. 

Section 363AB of the EPA relevantly states who is a related person of a company to respond to an EPO. Relevantly, a related person may be any of the following persons:

  • a person who is a holding company of the company; 
  • a person who owns land on which the company carries out a relevant activity; 
  • a person who has a relevant connection to the company; 
  • a person who is capable of significantly benefitting financially from the carrying out of the relevant activity by the company; 
  • a person who significantly influences the company.

Under section 363AC of the EPA an EPO may be issued to a related person. 

Section 505(5) of the EPA relevantly states that if the Court is satisfied that an offence against the EPA will be committed or that an offence against the EPA will be committed unless restrained, the Court may make the orders it considers appropriate to remedy or restrain the purported offence. 

Did the Tenant commit an offence under section 361 of the EPA?

The Court firstly considered whether an offence was committed under section 361 of the EPA. The Department relied on evidence of the Director of the Research and Scientific branch of the Queensland Fire and Emergency Services (Expert). The Expert opined that the estimated tyre mass on the subject land was between 6,214 to 9,957 tonnes. The Tenant, however, stated that the subject land at one stage contained up to 48,000 tonnes of rubber which has now decreased to an estimated 26,000 tonnes. 

The Expert noted that when tyres are densely stacked and compacted, there is a genuine risk of combustion. The Expert observed that as a consequence of the current conditions of the subject land, there is a genuine risk of a major fire which may cause significant consequences on the environment and surrounding area. The Expert also identified that the current conditions on the subject land pose significant life safety hazards to firefighters because of the storage and access arrangements. 

The Court accepted the Expert's evidence and held that the Tenant had committed an offence under section 361 of the EPA as the EPO had not been complied with. 

Was the Tenant a related person to respond to an EPO under the EPA?

The Court considered whether it was reasonable for the Tenant to be held responsible for the offence under section 361 of the EPA. The Department had issued to the Tenant's company and the Tenant an EPO as a result of the second fire to secure compliance with the general environmental duty under section 358(d)(i) of the EPA. The Tenant throughout the proceeding, however, maintained an argument that the Tenant's company did not seek an environmental authority for conducting the environmentally relevant activities on the subject land and that the signature was forged on the application.  

The Court rejected the Tenant's argument, as the Tenant provided no evidence to support the assertion that the signature was forged or another claim that two other people were in fact the Chief Executive Officer of the company. Additionally, the Court observed that on the two instances when the tyre fires occurred, the Tenant was on the subject land and assisted on both occasions in the firefighting effort. Furthermore, the Department had corroborating evidence that Departmental officers only dealt with the Tenant with respect to the subject land. The Court also observed that the Tenant significantly benefited financially from the operations being carried out on the subject land and was in a position of influence for at least two years with respect to the company's conduct. Consequently, the Court held that the Tenant was a related person under section 363AB of the EPA to respond to the EPO.

Was an offence committed under section 437 and 438 of the EPA? 

The Court observed that the second fire constituted an offence of causing serious environmental harm under section 437 of the EPA. 

The Court referred to section 17(1)(c) of the EPA, which defines serious environmental harm as being harm "that causes actual or potential loss or damage to property of an amount of, or amounts totalling, more than the threshold amount". Additionally, section 17(1)(d) states that serious environmental harm is harm "that results in costs of more than the threshold amount being incurred in taking appropriate action to prevent or minimise harm and rehabilitate or restore the environment to its condition before the harm", the threshold amount being $50,000. 

The Court observed that the remedial cost of the second fire was just under $68,000, and therefore noted that the fire resulted in serious environmental harm in accordance with section 17(1)(d) and section 437 of the EPA. The Court found, however, that it was unnecessary to make a final determination on the issue as the evidence established that an offence under section 361 had been committed.  

Whether the Court ought to make an order under section 505 of the EPA?

The Court held that if the Tenant is not restrained by appropriate orders it would be likely that an offence will be committed in the future. The Court therefore made the following orders under section 505(5) of the EPA:

  • the Tenant must establish and maintain a clean 10 metre firebreak around the entire property of the subject land that is to be free from obstacles and flammable and combustible materials within 30 days of the order;
  • the Tenant must maintain that individually stacked tyres must not exceed 45 m long x 5 m wide x 3 m high within 60 days of the order;
  • the Tenant must maintain that baled tyres must not exceed 45 m long within 60 days of the order;
  • the Tenant must maintain for all tyre stacks a batter slope not exceeding 1:1 within 60 days of the order; 
  • the Tenant must maintain a minimum of 10 m separation distance between stacks or stacks separated by a protective wall in accordance with the Fire and Rescue Service Act Requisition (No. 1) 2011 within 60 days of the order. 

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.

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