Measures to limit a council’s exposure to prosecution proceedings
Local government plays an integral role in the provision of a wide range of services as well as being responsible for the day-to-day management and operation of important community facilities. This article considers how councils may be held responsible for environmental incidents that occur at these facilities and what prosecution action a council might face.
Enforcement action taken against councils
Councils may bring prosecution proceedings against individuals or corporations for breaches of a range of legislation including the Local Government Act 1993, Environmental Planning and Assessment Act 1979, Protection of the Environment Operations Act 1997 (POEO Act) or associated regulations. Such proceedings can be commenced by a council for a range of offences, many of which often relate to the breach of orders, development consents (for which council is the consent authority) and environmental planning instruments. Despite councils often playing the role of prosecutor, it is important to be aware that councils themselves are not immune to also being the subject of enforcement action being taken against them.
In recent times, a number of local councils have been the subject of prosecution proceedings following incidents occurring which involve council managed and/or operated facilities. Looking at some of these incidents more closely, and with the benefit of hindsight, some common mistakes have led to these incidents occurring. Examining a council’s response to such incidents and the subsequent disciplinary action taken by the prosecutor can serve as a useful warning and lesson for councils. What becomes clear is that it is the action (or inaction) that is subsequently taken by a council following an incident having occurred that often constitutes a further (avoidable) breach and serves as an aggravating factor for the prosecutor to consider when it is determining what enforcement action is appropriate to take.
As a recent example, Lithgow City Council (Lithgow Council) recently entered into an enforceable undertaking with the NSW Environment Protection Authority (EPA) following an incident that occurred in August 2019. The incident involved the discharge of 13,000 litres of highly corrosive caustic soda at a sewerage treatment plant into an unnamed waterway after a storage tank fitting failed at the Wallerawang Sewage Treatment Plant. This incident constituted a number of serious breaches of the POEO Act, including the pollution of waters, land pollution and breaches of Lithgow Council’s environment protection licence. Immediately following the incident, Lithgow Council failed to notify the EPA or implement a Pollution Incident Response Management Plan. As a result of the incident having occurred and due to Lithgow Council’s failure to effectively respond to ensure that any environmental damage caused by the incident was mitigated and appropriately managed, an enforceable undertaking was entered into so as to improve its environmental performance. In total, the enforceable undertaking was estimated to cost Lithgow Council $543,000 and consisted of the following:
- $417,000 to go towards improving Lithgow Council’s environmental performance including providing additional staff and training for the Wallerawang Sewage Treatment Plant;
- $100,000 to benefit the local environment and community;
- $26,759 to cover the EPA’s costs of investigating the incident;
- $5,000 towards the EPA’s costs associated with future monitoring of Lithgow Council’s environmental performance; and
- a requirement for Lithgow Council to publish the notice of the enforceable undertaking on its website, as well as in the Village Voice, Lithgow Mercury and Sydney Morning Herald newspapers.
Over the past few years, other local councils have also entered into enforceable undertakings or received fines following incidents that resulted in breaches to planning and environmental legislation and associated environment protection licences. For example:
- Newcastle City Council was fined $55,000 by the EPA after committing three offences involving the discharge of contaminated, sediment-impacted and ammonia-impacted water. They were further required to pay $50,000 in EPA costs and publish a notice about the incident on multiple platforms;
- Queanbeyan-Palerang Regional Council entered a $50,000 enforceable undertaking with the EPA following a water pollution incident where two million litres of sewerage was discharged into the Quenbeyan river; and
- Clarence Valley Council were ordered to pay $300,000 in 2018 following prosecution by the Office of Environment and Heritage after the lopping of a culturally significant scar tree.
How can councils minimise their exposure to prosecution?
It is clear that local government managed operations are not immune to prosecution for environmental offences, especially in key areas involving the operation of waste infrastructure and management of public spaces and public services.
Having regard to the above examples and based on our experience, incidents that arise and expose councils and other bodies to prosecution typically occur in circumstances where there is:
- a failure by a council to have or follow environmental management plans;
- inadequate communication with employees of council managed and/or operated facilities in the areas of general operations and environmental protection procedures;
- a lack of awareness within the council of the legislative or environment protection licence requirements that apply to a facility or site;
- a delayed response time to an incident, often occuring due to communication errors or lack of oversight in day-to-day operations;
- lack of ongoing environmental training with a focus on environmental compliance in place for employees; and
- no or limited legal advice obtained by the council immediately following an incident.
Whilst the prevention of incidents altogether is preferable, in circumstances where incidents do occur, having preventative measures and effective response plans in place is critical. These measures and plans provide evidence of a well-managed council operation and are mitigating factors, which the enforcement agency and potentially the Court are required to consider when deciding what action to take and what penalties to impose.
When an incident does occur, it is always recommended that advice be immediately sought from legal professionals. The Planning and Environment team at McCullough Robertson Lawyers are experienced and specialised solicitors who are able to assist council in all areas of incident response, environmental training and high-level compliance and operational advice.
This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.