In recent judgement delivered in EPA v Ashmore (No 2)  NSWLEC 142 in the Land and Environment Court a test has been established to determine when investigation costs incurred by a prosecutor can be ordered against a defendant. Justice Craig found that the relevant test was that:
“there must be a relevant nexus between the facts that pertain to the charges to which a plea of guilty has been entered and the claim for costs sought to be recovered”
The facts of the case involve the defendant pleading guilty to infringing its environmental responsibilities by transporting waste to a place that could not be lawfully used as a waste facility under s 143 of the POEO Act. The prosecutor in the case, the EPA, sought an order from the court for the defendant to pay its investigation costs under s 248(1). The costs were incurred when investigating the stability of the dam wall which impacted the investigators ability to inspect the downstream area where the fill was deposited. The court applied the test and held that for costs to be ordered, the costs of the investigations must have been ‘directly occasioned by the depositing of waste’. In the circumstances the investigations did not arise because of waste being deposited on or in the vicinity of the wall, therefore there was no relevant nexus and costs were not ordered.
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