A prominent developer who failed to remove thousands of cubic metres of construction waste dumped in Darwin Harbour has lost a Supreme Court bid to avoid a $300,000 fine.
In a long-running environmental protection case, Michael Anthony and his company, DWD Project Pty Ltd, were convicted and fined in October last year for intentionally failing to comply with orders from the Northern Territory Environmental Protection Authority (EPA), to clean up pollution at his waterfront property.
The court heard evidence EPA officers physically observed significant amounts of material, including steel, concrete blocks, tiles and electric cabling, being bulldozed over the edge of Mr Anthony's premises into the harbour in April 2018.
But earlier this year, the developer took his case to the Supreme Court in an attempt to have the conviction thrown out, claiming, in part, the pollution abatement notices were incorrectly worded and the combined $300,000 fine was "manifestly unreasonable".
Justice John Burns today rejected all eight grounds of appeal filed by Mr Anthony and his company, dismissing his claim.
Years-long dispute over alleged dumping
Charges against Mr Anthony and his company have been before the courts for several years, in several long-running prosecutions.
In October 2018, January 2019 and June 2020 Mr Anthony and DWD Project Pty Ltd were issued pollution abatement notices by the EPA, requiring the waste and contaminants be removed from the harbour.
Mr Anthony and his company were later charged with failing to comply with the clean-up notices, as well as separate breaches of the Planning Act and contravening the Waste Management and Pollution Control Act by allegedly dumping the waste.
In its judgement dismissing the appeal, the court noted that the EPA alleged that since October 2015, Mr Anthony and his company dumped around 13,430 cubic metres of waste, containing traces of arsenic, copper, PFAS and asbestos, into the Darwin Harbour to increase the size of his waterfront block of land.
Justice John Burns's judgement noted that the charges related to the actual alleged dumping, laid in April 2019, are currently before the Darwin Local Court and have not been resolved.
Mr Anthony and his company were found guilty in October 2021 of the failure to comply with pollution abatement notices.
At the time, the EPA said it was the largest fine of its kind ever handed down in the Local Court.
"This incident was totally avoidable had the company and its sole director complied with accepted industry standards for the disposal and recycling of construction and demolition waste," the EPA's Peter Vasal said.
Appeal dismissed
Mr Anthony and his company launched an appeal before Justice John Burns, claiming eight reasons why the Local Court decision was incorrect.
One of the main issues claimed was the penalties Judge Woodcock imposed were "manifestly unreasonable", in part because he had been "encouraged" by the Northern Territory planning department.
The court heard Mr Anthony was in talks with the Northern Territory Government about his plans to purchase two adjacent blocks of Crown land for development, but that no agreement ever materialised.
"Nothing in that correspondence suggests that the Northern Territory government encouraged DWD, or Mr Anthony, to dump the waste that DWD did on any of the premises," Justice Burns wrote in his judgement.
Penalties imposed were 'moderate'
Justice Burns also found negotiations had taken place between Mr Anthony and the EPA which "evidences an unwillingness on the part of the [DWD Project Pty Ltd and Mr Anthony] to undertake the remediation of the premises the [EPA] considers necessary."
The maximum penalty faced by Mr Anthony for failing to abide by the pollution abatement notices was $2.5 million, while his company faced a maximum penalty in excess of $3 million.
"By any measure the penalties imposed by [Judge Woodcock] were moderate," Justice Burns found.
Mr Anthony and his company also claimed one of the three pollution abatement notices they were issued was worded incorrectly and was therefore invalid.
Justice Burns rubbished the claim as 'unsubstantial.'
Mr Anthony and DWD Project Pty Ltd will return to the Darwin Local Court at a later date for the other pending charges.
