A Darwin developer and businessman who failed to comply with requests to remove 15,000 tonnes of construction waste from Darwin Harbour has lost a second attempt to appeal his conviction and $300,000 fine.
Michael Anthony and his company, DWD Project Pty Ltd, were convicted and fined $300,000 in 2021 for failing to comply with orders from the Northern Territory Environmental Protection Agency (EPA).
The long-running court case examined the alleged dumping of approximately 15,000 tonnes of construction material, including steel, concrete blocks, tiles and electric cabling over the edge of Mr Anthony's waterfront block of land in April 2018.
In October of that year, January 2019 and June 2020, Mr Anthony and DWD Project Pty Ltd were issued three pollution abatement notices (PANs) by the EPA, requiring them to clean up the pollution in the harbour.
A Darwin Local Court judge ruled in 2021 that Mr Anthony and his company had failed to comply with the notices, fining them a combined $300,000.
It was the largest fine of its kind ever recorded in the Northern Territory Local Court.
Last year, Mr Anthony and his company failed in their bid to appeal the Local Court decision, claiming, in part, the penalty was "manifestly unreasonable" and that there was "no evidence before the court" of the "environmental effect" of failing to comply with the PANs.
Justice John Burns dismissed that appeal in May 2022 and further ordered Mr Anthony and his company to pay $15,000 in legal costs for the EPA.
Mr Anthony and his company then appealed that decision to the Northern Territory Court of Appeal, where three Supreme Court justices again dismissed his claim.
Second appeal fails
Mr Anthony and DWD Project Pty Ltd urged Chief Justice Michael Grant, Justice Judith Kelly and Justice Jenny Blokland to find that Justice Burns "ought to have found that the revised [pollution abatement notices] issued on June 1, 2020, were not issued in the form approved in writing by the NT EPA and the appellants, therefore, did not commit an offence".
They also argued they were unfairly prosecuted because the abatement notices arrived, they said, outside the limitation period dictated by legislation.
In dismissing the appeal, the three judges wrote that much of Mr Anthony and DWD Project Pty Ltd's Court of Appeal argument was "identical" to the original appeal before Justice John Burns.
"Although the appellants' submissions in the Supreme Court have not been included in the appeal book, it appears from a reading of the judgement of the Supreme Court that the propositions advanced in support of these contentions are largely the same as those put before the intermediate appeal judge and, before that, to the Local Court," the judges wrote.
They ruled the argument that the limitation period had expired was "misconceived" and wrote that the PANs did not need to strictly follow the "approved form".
"The form and content of the revised PANs issued on June 1, 2020 is far more informative … than the approved form. That is because the revised PANs specify in great detail the grounds upon which the person issuing them formed the belief that an offence had been or was likely to be committed, allowing the recipient to judge the reasonableness of those grounds," the court found.
The judges also dismissed Mr Anthony and DWD Project Pty Ltd's appeal of the $15,000 costs order made by Justice Burns.
Environment Authority welcomes decision
Northern Territory Environment Protection Authority Chairman Dr Paul Vogel said he welcomed the decision, and that it showed the environment should be "valued and protected".
"This decision demonstrates we have strong environmental laws," he said.
"I thank the members of the public who reported this matter to our Pollution Response Line, as well as our investigators who worked on the matter."
The Court of Appeal judgement noted a separate prosecution against Mr Anthony and his company, related to the actual alleged dumping of waste into the harbour, is before the Darwin Local Court.
No findings have been yet made in relation to those charges.
