Pest company fined over Jamison Creek damage

A Blue Mountains pest company was fined $10,000 and an individual pest controller $5000 for damage caused to the iconic Jamison Creek in Wentworth Falls in July last year.

Their actions inadvertently decimated the crayfish population in a 2km section of the creek above Wentworth Falls.

They were also ordered to pay the creek clean-up fees of more than $13,000 and a small portion of Blue Mountains City Council’s legal costs. 

The fines were meted out in Katoomba Local Court on Monday following lengthy investigations by Blue Mountains City Council.

Two brothers pleaded guilty — David Douglas Kennedy and Peter Kennedy — to charges of polluting waters under section 120 of the Environment Operation Act. Peter  Kennedy is the director of   F.T.G.O.G  Pty Ltd  which operates as Barrier Pest Control in Blaxland. His brother, David administered the pesticide at the Cale Lane villas in Wentworth Falls which caused the damage to the creek 700 metres away.

In an expert report tendered to the court it was heard that 10 times the correct amount of chemicals  that was required at the units was injected into the pipe system — some 200 litres. The pesticide (Bifenthrin) was also applied too close to a drain pipe. Excess pesticide solution made its way into the street and eventually into Jamison Creek via a stormwater drain. The report said a “competent pest manager” would have been alerted to take extra caution in the application because of the features of the sloping site.

The mistake was made because on July 5 David Kennedy measured out the whole perimeter of the site and injected the chemicals to that ratio not being aware the termite reticulation system did not cover the entire perimeter.  He did not recognise the nearby agricultural pipe because it had moss on its cover.

In the length of the creek between the weir and the waterfall, the court heard there were five dead or dying crayfish for each 10 metre length of the creek. Bushwalkers notified council of dead crayfish on Darwin’s Walk later that month and investigations and a clean-up started soon after involving council and the Environmental Protection Agency, Sydney Catchment Authority, National Parks as well as NSW Fire and Rescue, among others.

Peter Kennedy told the court he was “devastated” about the incident and had not encountered anything like it in 14 years in the business. He had originally wanted  to refill the creek with yabbies but was “told by a scientist it would naturally happen”.

He told the court he wanted to set up a “foundation to protect the environment” depending on fines set by the court. The maximum penalty that can be imposed in a local court is $110,000 for the offence — in a superior court the maximum penalty  for a company reaches $1 million and for an individual $250,000.

Council asked for $13,608 for the clean-up bill which involved multiple agencies and said legal fees amounted to $32,262.  It did not seek the additional $25,000 for investigations costs.

But Magistrate Fiona Toose criticised the legal bill saying council had overspent  on “a posse of lawyers” awarding  just $2000.

“Why on earth you need senior counsel in what looks like a lay down misere is beyond me?”

The prosecutor said “a lot of the work was to verify if there was sufficient evidence”.

The brothers were visibly relieved by the fines and hugged their family members outside the court. Magistrate  Fiona Toose said it was clear “a lot greater care needed to be taken”.

A council spokeswoman said the  fine “was a matter for the court”. She said council was pleased by its successful prosecution which “sent a message to other pest control operators of their responsibility to the environment”.