Environment Protection Authority v Albury City Council

Land and Environment Court (NSW)|2009-09-23|Before: Pepper J, Mr P

Introduction 1 HER HONOUR: The defendant, Albury City Council ("the council"), pleads guilty to the offence of polluting waters under s 120 of the Protection of the Environment Operations Act 1997 ("POEOA"). 2 The circumstances of the pollution are that in late May 2008 a pump failure caused sewage effluent to overflow from a manhole discharging via a gutter into a stormwater drain leading to a stormwater gully and then into the Murray River. While potential harm to the environment was present, no actual harm occurred. 3 This judgment concerns the sentence to be imposed consequent upon the guilty plea. 4 For the reasons set out below, the Court fines the council the amount of $45,500. Particulars of the Charge 5 The charge against the council was stated as follows in the Amended Summons: That, between about 28 May 2008 and 29 May 2008 at or near Hume Street, Albury in the said State, it committed an offence against section 120(1) of the Protection of the Environment Operations Act 1997 in that it polluted waters.

Stormwater gully running beside Hume Street, Albury; the Murray River.

Causing sewage effluent to overflow from a manhole which flowed via a gutter on Wodonga Place to a stormwater drain leading to the Waters. Factual Background to the Offence Agreed Statement of Facts

6 Except for the issue of the degree of potential harm caused to the environment, the facts in this matter were largely agreed and were contained in a comprehensive Agreed Statement of Facts (with attachments, including photos of the sewage spillage). Its contents are summarised below. 7 On 26 May 2008, the council commenced maintenance works at its main sewer pump station. In order to carry out the work it was necessary for the council to empty the eastern well and divert all sewage flows around this well. 8 The preparation for this work included: (a) completion of [a] Plant Maintenance and Safety Inspection Report by the Council for both of the two large mobile "Sykes" Pumps dated 26 May 2008 with a notation stating "clean suction strainers daily";

(b) the drafting of [a] Risk Assessment by the Council dated 22 May 2008 in relation to the set up of the two large mobile "Sykes" Pumps around the sewer; and

Sections 3, 4 and 5 of each of the Safe Work Method Statements include assessment of "environmental pollution" as a potential hazard identified with Council relying on its standard procedure for "Clean Up of Sewer Overflow to a Water Course" to deal with any overflows. 9 Further risk assessment by the council comprised a: (a) "sewage overflow notification flow chart and notification details" for notification to the EPA and Department of Health of incidents of sewage overflow in order to comply with its Environmental Protection Licence No. 231; and (b) contact list listing relevant authorities required to be notified in the event of a sewage overflow occurring into the Murray River; and (c) standard procedure for "Clean Up of Sewer Overflow to a Water Course" and "Incident Notification to Communities Exposed to Sewage Overflows". 10 In order to empty the well, the council placed a plug in a pipe between the sewer pump station and an external manhole. The council diverted the sewer flow around the well by using two large mobile Sykes pumps, which were placed near the manhole. Suction pipes connected to the pumps were placed within the manhole so that any sewage flows entering the manhole were pumped into the western well. 11 Each of the Sykes pumps had a strainer guard (filter) over the inlet of the pipe which were designed to filter large bulky material from blocking the inlet of the pipes. The strainers were checked and the suction hoses cleaned daily by council employees. 12 The two pumps were set up so that one was the primary pump and the other was the secondary or backup pump and that if the capacity of the primary pump was exceeded, the secondary pump would automatically arrest the excess flow and minimise the risk of sewage overflow if the first pump malfunctioned. 13 An electronic sensor was intended to operate so that when the sewage flow within the manhole reached a certain level, one of the mobile pump's engines would switch on and begin pumping the sewage to the western well. If the sewage rose even further then the second pump would start working so that two pumps worked together at any given time. 14 Further, if the sewage level in the manhole was approximately 1.2 m from its top, a telemetry system was activated. This system caused an SMS message, by way of alarm, to be sent to a council duty officer with the sewer call out phone. If the alarm sounded the duty officer then attended the site immediately to rectify any faults. This was the standard practice for monitoring the council's entire sewerage system. 15 Finally, the council had a "spotter", Mr Trevor Worthington. The spotter was the person whose duty it was to attend on-site to the maintenance and supervision of the Sykes pumps. Mr Worthington was the spotter on duty from 26 to 29 May 2008. During cross examination of one of the council's officers, Mr Barry Ferris, Mr Ferris conceded that Mr Worthington was not present on-site at all times on the days the pumps failed but was close by. Overflow on 28 May 2009 16 On 28 May 2009 an overflow of sewage effluent occurred at the manhole. It was caused by a blockage of the strainers thereby affecting the operation of the suction hoses. By reason of the blockages the upstream sewage flows to the manhole could not be pumped to the western well. Consequently the raw sewage built up and overflowed from the manhole. 17 The sewage flowed along a gutter until it entered the stormwater system via a drain. It then followed the stormwater system underground before emptying into an open stormwater drain. From there it flowed through a culvert near a public swimming pool, into an earthen channel beside the Murray River and then into the river itself ("the first overflow"). 18 The on-duty council officer attended the site immediately after receiving the telemetric alarm. Additional council staff also attended. The sewage overflow continued for approximately 20 minutes before the upstream pumping stations were shut down thereby preventing further discharge. 19 After the overflow ceased, the council took the following remedial action. It: (a) cleared the blocked strainer guards of the "Sykes" pumps and restarted the pumps; (b) implemented the council's overflow recovery plan which included; (i) placing two walls of sandbags in the open drain to try to prevent further discharge; (ii) engaging the services of Barry Brothers Pty Limited to provide tanker trucks to suck the sewage out of the open drain along Hume Street; (iii) using council's water trucks to wash the stormwater drain out from the overflow point; (iv) informing management at the council; and (v) contacting the Department of Environment Climate Change and Water (DECCW - at the time of the offence, the agency was actually the Department of Environment and Climate Change) at 11.40am. 20 Removal of waste water from the storm water channel was carried out by Barry Bros Pty Limited ("Barry Bros") and the clean up operations were assessed at 17.5 kilolitres or 2.5 tanker loads of sewage. 21 The council also instructed Waterview Laboratory to undertake representative sampling in the Murray River upstream of the discharge point, immediately downstream of the discharge point and approximately 1 km downstream of the discharge point. These samples revealed, unsurprisingly, the presence of coliforms and E coli in the water tested. 22 Department of Environment Climate Change and Water ("DECCW") officers arrived at the scene and took a number of photographs and samples from the open drain, the earthen drain and the Murray River. Once again, the downstream samples revealed material levels of bacterial contamination. 23 The council issued a written notification to NSW Health, Department of Water & Energy, Corowa Shire Council and Greater Hume Shire Council of the overflow but it was advised by DECCW that a public advertisement to restrict water activities in the river was not warranted. Overflow on 29 May 2008 24 On 29 May 2008, a second overflow took place from the manhole. This overflow was a brief affair lasting approximately three minutes. It was caused by a change in the cleaning procedure of the pumps to ensure that they did not become blocked again. Instead of the cleaning being undertaken while the flow entered the manhole, the council switched off an upstream sewer pump and significantly reduced inward flows. As a consequence, sewage built up in larger than usual quantities at the upstream pumping station. Thus the pumps were switched back on but were set to automatic mode. Due to the increased volume upstream, the pump ran continuously rather than pulsating under standard operating conditions and sent an increased load to the site that the Sykes pumps could not accommodate ("the second overflow"). 25 The course of the second overflow was similar to that of the first, except that it overtopped sandbags that had subsequently been placed to stop any flow from reaching the earthen drain. The sewage ran into the drain but did not continue into the Murray River. 26 The council once again implemented its overflow recovery plan. Samples were taken from the river. These showed bacterial contamination in the downstream samples. 27 Because, however, it was conceded by the prosecutor, the Environment Protection Authority ("EPA"), that the second overflow did not reach the Murray River, the Court infers that these results derive from the spill the day before. Post Overflow Agreed Facts 28 The council has cooperated with the EPA at all times, including voluntarily providing a report and other material in relation to the two overflow events and participating in a record of interview. 29 When the matter was first mentioned before the Court it was adjourned by consent because the defendant had recently filed a change of solicitor. 30 A plea of guilty was entered on the third mention date after continued negotiations between the parties which the prosecutor properly conceded were conducted reasonably and without delay and which were of utility. Expert Evidence on Environmental Harm Caused by Overflows 31 The EPA relied on the evidence of Dr Jocelyn Dela-Cruz, a senior environmental scientist employed by DECCW (contained in two affidavits sworn 11 June and 16 September 2009). 32 Under cross examination, Dr Dela-Cruz stated that her initial estimate of the likely risk of environmental harm caused by the first overflow had to be revised upward in light of the fact that the second overflow did not reach the Murray River. This was because the testing in relation to the second overflow still showed significant levels of contamination in circumstances where she expected the dilution rate of the contamination to have been greater. Accordingly, the persistent nature of the contamination due to the reduced flow of the river suggested that there was a greater risk of harm than she had previously considered likely. 33 However, the gravamen of her evidence was that due to the limited nature of the testing and sampling she could only opine that "potential" environmental harm had been caused by the overflows. Furthermore, she agreed that she could not assess the likely level of potential harm and stressed that no actual environmental harm had resulted from the overflows. Evidence of the Council Mr Colin Johnson 34 Mr Colin Johnson, the council's Group Leader of Water and Wastewater, was responsible for the daily management of all water and wastewater at the council. 35 In an affidavit sworn 21 September 2009 Mr Johnson relevantly deposed that: (a) the council took immediate steps to remediate the effect of the overflows and to report the incidents to the regulatory authorities;

(b) the Sykes pumps were bought in 2001 and 2002. Since their purchase they had been regularly maintained and had not required any major repairs;

(c) the filters "filtered too efficiently" blocking rags and other normal constituents of sewage from going into the pump, but the pumps were purchased with the filters fitted and the council had never experienced any blockages previously;

(d) the council had always used the pumps without incident and thus the overflows on 28 and 29 May 2009 were not foreseeable;

(e) the pumps are currently in use but the council's environmental assessment procedures have since been reassessed and changed "to reduce the probability and effect of another sewage overflow incident";

(f) since the overflows the council does not use the filters on the Sykes pumps at all;

(g) the quantity of the overflow on 28 May 2009 was between approximately 84,000 litres and 127,000 litres; and

(h) he and his staff were distressed by the two overflows. 36 Mr Johnson's evidence was not challenged by way of cross examination. Mr Bradley Ferris 37 Mr Ferris, the director of engineering at the council, also provided evidence to the Court by way of affidavit sworn 21 September 2009 and orally by way of cross examination. His evidence was to the following effect: (a) that the council had not been previously involved in or charged with an environmental offence and had "a good record in delivering good environmental outcomes";

(b) as part of the Safe Work Method Statements ("SWMS") the council had undertaken a specific environmental assessment in relation to the sewage pump works that commenced on 25 May 2009. This assessment took into account the area and works which were to occur and identified the environmental safety plans and procedures that were required. Critically, however, the assessment omitted to deal with the consequences of a sewage overflow;

(c) in June/July 2007 the council undertook sewage diversion works of a similar nature to those undertaken in May 2009 using the same Sykes pumps and diversion procedures were completed without incident;

(d) the second Sykes pump was installed as a precautionary measure against the malfunction of the first Sykes pump;

(e) the blockage that occurred on 28 May 2009 was unusual insofar as it was not normal for that quantity of rags to be contained in the effluent. Consequently, while it was foreseeable that blockages could occur, this type of blockage was unforseen, and moreover, the overflow and its geographical reach was unforseen;

(f) the council did not consider the possibility of both pumps failing and that another tier of protection was needed to mitigate the effects of an overflow, for example, by the use of sandbags;

(g) the large quantity of sewage sent to the main pump station on 29 May 2009 was unplanned and unforseen because the ramifications of the upstream pumps running for an extended period of time were unforseen;

(h) while with hindsight it had to be conceded that the council's procedures for dealing with potential overflows were "inadequate", since the overflows the council had implemented measures to ensure that such incidents did not occur in the future and none have in fact occurred. These measures include: (i) that future sewage diversion operations no longer use the filters on the Sykes pumps;

(ii) a comprehensive Environmental Checklist that includes a review of sewage catchment areas, average daily flows, peak flows and storage well retention times, in order to determine the most appropriate manner of carrying out operational works;

(iii) improvement to the timeliness of the response and updated procedures to the telemetry alarm system; and

(iv) further training of staff and a greater allocation of resources for future maintenance activities where by-pass or pump around procedures are in place; (i) feedback from the EPA and other regulatory stakeholders in respect of these measures had been positive;

(j) the council understood the significance of the local environment and in particular, the significance of maintaining the water quality of the Murray River; and

(k) as a director of the council he sincerely apologised for the events that occurred, about which he was extremely distressed. Consideration of Sentence Purpose of Sentencing 38 Section 3A of the Crimes (Sentencing Procedure) Act 1999 ("CSPA") provides that the purposes of imposing a sentence on an offender include: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. 39 The sentence of the Court is a form of public retribution and denunciation of the conduct of the offender (s 3A(f) of the CSPA). It must ensure that the offender is held accountable for his or her actions and is adequately punished (s 3A(a) and (e)). In this regard it must be borne in mind that despite the fact that this is a strict liability offence, breach by the council of s 120 of the POEOA is a crime and not a mere administrative breach (EPA v Waste Recycling and Processing Corporation (2006) 148 LGERA 299 at [226]). 40 The sentence must also deter the offender from committing a similar offence in the future (Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137 at [8]). Moreover, the sentence of the Court needs to operate as a "powerful factor" in preventing the commission of similar offences by persons who may be tempted to do so (Rae at [9]). Approach to Sentencing 41 It is a basic principle of sentencing law that the sentence imposed by the Court for an offence must both reflect and be proportionate to the objective circumstances of the offence and the personal or subjective circumstances of the offender: Veen v The Queen (1979) 143 CLR 458 at 490 and Veen v The Queen (No 2) (1988) 164 CLR 465 at 472. Objective Gravity of the Offence 42 The primary factor to consider in determining sentence is the objective gravity or seriousness of the offence. It fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit insofar as the sentence must not exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances: Veen v The Queen (No 2) at 472, 485-486, 490-491 and 496; Hoare v The Queen (1989) 167 CLR 348 at 354. It fixes the lower limit because allowance for the subjective factors of the case ought not produce a sentence which fails to reflect the objective gravity or seriousness of the offence: R v Dodd (1991) 57 A Crim R 349 at 354; R v Nichols (1991) 57 A Crim R 391 at 395; Garrett v Freeman (No 5) (2009) 164 LGERA 287 at [51] and Pittwater Council v Scahill (2009) 165 LGERA 289 at [50]. 43 In determining the objective gravity or seriousness of the offences, the circumstances of the offences to which the Court may have regard include (see Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 at [163]; Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 at [110], both cited in Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited (No 2) [2009] NSWLEC 6 at [36]-[38]): (a) the maximum penalty for the offence;

(b) the objective harmfulness of the defendant's actions;

(d) the defendant's reasons for committing the offence;

(e) the foreseeability of risk of harm to the environment;

(f) the practical measures to avoid harm to the environment; and

(g) the defendant's control over the causes of harm to the environment. 44 Section 21A of the CSPA further identifies matters which the Court must take into account when sentencing, including those in aggravation (s 21A(2)) and those in mitigation (s 21A(3)). 45 Other mandatory statutory considerations specific to the POEOA are set out in s 241(1) of that Act: 241 Matters to be considered in imposing penalty (1) In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant): (a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence, (b) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence, (d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence, (e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee. The Maximum Penalty 46 The maximum statutory penalty is of considerable significance in determining the objective gravity of the offence. In Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 it was stated that: the maximum penalty available for an offence reflects the "public expression" by parliament of the seriousness of the offence ... 47 In Markarian v The Queen (2005) 228 CLR 357 at [31], the High Court unequivocally referred to the need to have regard to the maximum penalty as a legislative yardstick to enable comparison between the worst possible case and that currently before the court (see also Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304 at [37]). 48 At the time the offences were committed, the maximum penalty for breach of s 120 of the POEOA was, in relation to the council, $1,000,000. This demonstrates the extreme seriousness with which offences against the POEOA are viewed. 49 The fourfold increase in the maximum penalty in 2006 highlights the approbrium with which the legislature regards environmental offences. The Offence is Not Serious But More Than Trivial 50 The EPA submitted that this was not a serious case where a penalty towards the upper end of the range ought to be imposed. But it emphasised that the objective gravity of the offence was more than trivial and not at the lower end of the scale. 51 The council agreed that the gravity in respect of the commission of the offence was more than trivial but disagreed that it was otherwise than at the lower end of the spectrum. 52 The council does bear some culpability given the volume of sewage (Mr Barley for EPA submitted that it was the equivalent of 10 tankers' worth) that was discharged into the Murray River on 28 May 2009. This is because, the council acted in partial disregard of the objects of s 3(d) of the POEOA by engaging in maintenance works without taking sufficient precautionary measures to advert the deleterious effects of an overflow where there was an identifiable risk of resulting harm to the environment and possibly to human safety. Section 3(d) of the POEOA relevantly states as one of the Act's objects: (d) to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following: (i) pollution prevention and cleaner production, (ii) the reduction to harmless levels of the discharge of substances likely to cause harm to the environment, (iia) the elimination of harmful wastes, (iii) the reduction in the use of materials and the re-use, recovery or recycling of materials, (iv) the making of progressive environmental improvements, including the reduction of pollution at source, (v) the monitoring and reporting of environmental quality on a regular basis 53 I agree that the gravity of the offence cannot be characterised as trivial. But for the reasons that follow, and notwithstanding that the volume of effluent discharged was considerable, I would nonetheless assess the objective gravity of the offence as relatively low. Harm to the Environment 54 The phrase "harm caused … to the environment" in s 241(1)(a) of the POEOA is effectively defined in the Act as: any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution. 55 In Newcastle City Council v Pace Farm Egg Products [2002] NSWLEC 66 at [44], the Court stated that "likely" harm in s 241(1)(a) of the POEOA should be construed as, "a real or not remote chance of possibility" of harm. 56 In Environment Protection Authority v Waste Recycling and Processing Corporation at [145]-[149] Preston CJ said further: [145] Harmfulness needs to not only be considered in terms of actual harm, the potential or risk of harm should also be taken into account: Axer Pty Ltd v Environmental Protection Authority (1993) 113 LGERA 357 at 366 and Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 (6 February 2006) at [175]. Harm should not be limited to measurable harm such as actual harm to human health. It can also include a broader notion of the quality of life. [146] Harm can include harm to the environment and its ecology. Harm to an animal or plant not only adversely affects that animal or plant, it also affects other biota that have ecological relationships to that animal or plant: Bentley v BGP Properties Pty Ltd at [174]. [147] Harm can be direct or indirect, individual or cumulative. Activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernable direct harm to human interest, should also be treated seriously. [148] The culpability of the defendant depends in part on the seriousness of the environmental harm. Sentencing courts have exercised their discretion in relation to penalty on the principle that the more serious the lasting environmental harm involved, the more serious the offence and, ordinarily, the higher the penalty: Camilleri's Stock Feeds Pty Ltd v Environment Protection (2006) 148 LGERA 299 at 326 Authority at 701; 39. If the harm is substantial, this objective circumstance is an aggravating factor: s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 NSW. [149] The fact that the environment harmed by the offender's conduct was already disturbed or modified is not a mitigating factor: State Pollution Control Commission v White Wings Ltd (unreported, Land and Environment Court, NSW, Bignold J, No 50129 of 1991, 1 November 1991) at 4; Environment Protection Authority v Ecolab Pty Ltd (2002) 123 LGERA 269 at [14]; Environment Protection Authority v Coggins (2003) 126 LGERA 219 at [18]; Environment Protection Authority v Abigroup Contractors Pty Ltd [2003] NSWLEC 342 (15 December 2003) at [24]; Environment Protection Authority of New South Wales v Arenco Pty Ltd [2006] NSWLEC 244 (9 May 2006) at [26]. 57 Accordingly, while no actual harm to the environment occurred as a result of the overflows, given the statutory and judicial definitions above, given the volume of sewage discharged, given the test results of the sampling which demonstrated the presence of material levels of contaminants, and given the evidence of Dr Dela-Cruz, I find beyond reasonable doubt that potential harm to the environment was caused by the overflows. State of Mind of the Council 58 It is tolerably clear that the council was not in any way subjectively culpable, its culpability deriving from the offence's strict liability (Ngo v Fairfield City Council [2009] NSWCCA 241 at [23]-[24]). 59 It is also tolerably clear from the evidence (and was not in dispute) that the commission of the offence was unintended and thus not deliberate. Furthermore, the commission did not involve commercial expediency. 60 These factors decrease the objective gravity of the offence. The Practical Measures Which Could Have Been Taken to Prevent, Control, Abate or Mitigate the Harm 61 It was not disputed that feasible and inexpensive practical measures could have been taken to, at the very least, control, abate, or mitigate the harm (s 241(1)(b) of the POEOA). These are the very measures that the council has subsequently taken as the evidence of Mr Ferris demonstrates. Other measures included, for example: (a) ensuring that sandbags were in place before the discharge on 28 May 2009 rather than after;

(b) ensuring that the upstream pumping stations could be shut off quickly once the telemetric alarm was activated; or

(c) ensuring that the spotter was on site at all times while the maintenance was being carried out. 62 While the council undoubtedly sought to minimise the risk of a discharge prior to commencing the maintenance operations, and moreover, attended to the clean up of the overflows with due diligence and dispatch, I accept the submission of the EPA that the council did not have measures in place to deal with the consequences of both Sykes pumps failing and thus of a discharge taking place. That is to say, the council did not take practical measures to mitigate, control or abate any overflow once it occurred. Given the known and obvious deleterious effects of raw sewage being discharged into the environment, it should have done so. Reasonable Forseeability of the Harm 63 The council contended that there was no evidence to suggest that the resulting over flow could have reasonably been foreseen given that the system of using two Sykes pumps had previously been used for conducting similar maintenance works without incident (s 241(1)(c) of the POEOA). Further, it submitted that the extensive measures implemented by it to prevent an overflow occurring reduced the extent of any harm to the environment being foreseen to a level below that which would be deemed reasonable. Thus it argued that the harm was not foreseeable. The council relied on R v Way (2004) 60 NSWLR 168, specifically at [86], as authority for this proposition. 64 I did not find this decision to be of assistance to the facts in the present case. I prefer instead the decision of Environment Protection Authority v Boral Australian Gypsum Limited [2009] NSWLEC 26 (at [34]) where Pain J appositely stated: I accept the Defendant's submission to some extent that while the incident was foreseeable the probability of this incident arising was reasonably remote and depended on several circumstances combining to result in the incident giving rise to the offence… I consider the level of foreseeability was at the lower end of what could reasonably be expected of a responsible operator… 65 I therefore find that an overflow of sewage and its resulting harm were foreseeable. That a discharge could occur by reason of maintenance works being carried out was not so remotely unforeseeable that it can be wholly discounted. Blockages occur. Equipment fails. As such, precautionary measures ought to have been implemented by the council to guard against the consequences of any accidental discharge. They were not. 66 Having said this, that both pumps would malfunction due to an abnormally excessive quantity of rags present in the effluent flow was, in my view - particularly in circumstances where similar maintenance using almost identical methodology had been successfully conducted in the past without incident - at the lower end of reasonable foreseeability. As a corollary, the foreseeability of an overflow resulting from this failure was also at the low end of this scale. The Council Had Control Over the Causes Which Gave Rise to the Offence 67 Again it is not controversial that at all times the council, as the operator and licensee of the sewerage system, as well as the employer of all persons involved in the two overflows, had control over the causes which gave rise to the commission of the offence (s 241(1)(d) of the POEOA). Aggravating Features 68 There are no aggravating features of the council's conduct that increase the objective seriousness of the offence. The fact that another overflow occurred on 29 May 2009 is not, contrary to that which was submitted by the EPA, a matter in aggravation pursuant to s 21A(2)(m) of the CSPA, in that it was not an offence that "involved multiple victims or a series of criminal acts". 69 As the EPA conceded, the circumstances of that discharge were very different. In addition, the discharge was only for approximately three minutes before it was halted, practical measures such as sandbags were put in place to mitigate the effect of any overflow, and the discharge did not reach the Murray River. Viewed in context, it is difficult to accept the mere fact of another overflow on 29 May 2009 as a feature in aggravation of the offence pursuant to s 21A(2)(m). Conclusion on Objective Circumstances 70 Having regard to the circumstances of the commission of this offence, I am of the view that the offence must be considered to be of low objective gravity. Subjective Circumstances the Council 71 A proportionate sentence requires the Court to take into account any personal or mitigating factors present (Gittany at [144] and the authorities cited thereat). Mitigating Factors 72 The evidence discloses mitigating factors that the Court must take into account in determining the appropriate penalty (s 21A(3) of the CSPA). Prior Convictions 73 In Veen v R (No 2) the High Court stated (at 477): The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. 74 In the present case the council has no prior convictions and in my opinion the factual matrix leading to the commission of this offence clearly demonstrates that it was "an uncharacteristic aberration" by the council. Prior Good Character 75 There is no question on the evidence that, save for the commission of this offence, the council's prior good character is unblemished (see s 21A(3)(f) of the CSPA). Plea of Guilty 76 There was an early plea of guilty by the council, but it did not come at the first available opportunity (see ss 21A(3)(k) and 22(1)(a) and (b) of the CSPA). That is to say, it was not made on either the first or second mention date. 77 Having said this, the EPA submitted that the plea was entered at the first available opportunity once negotiations had concluded between it and the council and that these negotiations were not characterised by any delay on the part of the council. It therefore submitted that any reduction of the full 25% discount ought to be minimal (Rae at [63]). 78 I agree. I therefore conclude that the discount to be afforded for the utilitarian value of the early plea of guilty should be 24% (see Rae at [58]-[64] and the authorities cited at [61]). Contrition and Remorse and Likelihood of Reoffending 79 Both Mr Ferris and Mr Johnson have both expressed their deep contrition, remorse and distress on behalf of the council (s 21A(3)(i) of the CSPA). 80 This factor also makes it less likely that the council will re-offend in the future (s 21A(3)(g) of the CSPA). Cooperation with the Regulatory Authority 81 As the evidence unequivocally demonstrates, at all times the council cooperated and assisted the regulatory authorities in their investigation and prosecution of this offence (ss 21A(3)(m) and 23(1) of the CSPA). This cooperation, moreover, commenced at the earliest possible point in time. It culminated with the filing in Court of the Agreed Statement of Facts. Payment of the Prosecutor's Costs 82 The council has agreed to pay the costs of the EPA fixed in the sum of $15,500 for professional costs and disbursements and $2,544 for investigative costs, the total being $18,044. Capacity to Pay Fines 83 Turning to the financial position of the council, there is no suggestion that the council will not have the capacity to pay any fine imposed on it by way of penalty (see s 6 of the Fines Act 1996). Conclusion as to Subjective Circumstances 84 The subjective circumstances of the council substantially mitigate the sentence to be imposed. Appropriate penalty for each individual offence 85 In Gittany, the Court stated the following applicable principles in relation to deterrence as a component of an appropriate penalty for an environmental offence (at [188]-[190] and [192]): 188 In fixing the appropriate punishment for the offences, the Court needs to consider the purposes of sentences relevant to the offences in this case.

189 There is a need to ensure that the appellant is made accountable for its actions and is adequately punished for the offences it has committed. This requires the Court to ensure that the punishment for each offence adequately reflects the objective seriousness of the offences, whilst also taking account of the subjective circumstances of the appellant.

190 There is a need to deter specifically the appellant from repeating the conduct that resulted in the commission of the offences, when the appellant carries out development in the future. The appellant needs to be told, by the Court's sentence, that breaches of the EPA Act, including by failing to carry out development consent, will be visited with significant financial consequences.

192 To achieve general deterrence, courts need to impose a penalty that not only acts as a warning to others but also makes it worthwhile that the cost of taking precautions to avoid committing the offence (such as by obtaining and complying with development consents be undertaken): Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359-360; Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [139]-[141], [148]-[157]. 86 One of the purposes of the Court in imposing a sentence is to prevent crime by deterring the offender and other persons from committing similar offences. This purpose is enshrined in s 3A(b) of the CSPA. 87 A person will not be deterred from committing environmental offences by the imposition of nominal fines (Bentley at [140]). Equally, the sentence imposed by the Court must show the denunciation of the crime committed and take into account the moral outrage of the community (BGP at [143]). The community is entitled to expect that the Court will exercise its discretion to impose penalties commensurate with the community's views. 88 In the circumstances of the present case, the need to specifically deter the council from repeating the conduct that resulted in the commission of the offence in the future is, on the evidence outlined above, very limited. 89 There is, however, also a need to ensure general deterrence in relation to other councils who may conduct sewerage works without the necessary precautionary measures first being implemented. The need for such deterrence is particularly acute when there is a possibility that such works, if not performed properly, can cause environmental degradation to sensitive and already compromised waterways. It is, regrettably, beyond any doubt that the Murray River is such a waterway. It is also beyond any doubt that the council was aware of this. 90 The POEOA exists not only to prevent deliberate or negligent pollution but also to promote positive action to be undertaken to ensure that pollution does not occur. In Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Mahoney JA observed (at 359) that: The community has adopted a stern policy against pollution. The legislative scheme requires that proper, and strict, precautions be taken by those whose activities may cause proscribed pollution… The quantum of the fines which the legislation allows to be imposed has no doubt been fixed not merely to indicate the seriousness with which such pollution is regarded but also to deter those engaged in such activities and to procure that they will take the precautions necessary to ensure that is does not occur. 91 The EPA further submitted that the penalty imposed should be such that it makes precautionary expenditure worthwhile. I accept this submission but note that the council has already gone some way to embracing measures designed to ensure that no overflows occur in the future during maintenance operations. Consistency in Sentencing 92 A relevant consideration in sentencing is the ascertainment of the existence of a general pattern of sentencing by the courts for offences such as the offence in question (Gittany [179]-[183] and Camilleri's Stock Feeds at 701-702). 93 The proper approach is for the Court to look at (Gittany at [182]): 182 … "whether the sentence is within the range appropriate to the gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range": R v Morgan (1993) 70 A Crim R 368 at 371 and Capral Aluminium Ltd v Workcover Authority of NSW (2000) 49 NSWLR 610 at 641. 94 The EPA referred the Court to the decision in Environment Protection Authority v Boral Australian Gypsum Limited. In that case 6,400 litres of a liquid chemical known as Gardisperse was accidentally released into the Parramatta River during transfer when an electronic sensor failed. Its toxicity was low to moderate. The prosecutor submitted that there was no evidence of actual harm, but the Court stated that a lack of evidence did not mean that there was none (at [23] and [25]). The objective and subjective features of that case were not dissimilar to those of the present proceedings. After reviewing the penalties imposed in several other cases, Pain J imposed a penalty of $90,000 discounted by a total of 35%, resulting in a fine of $58,000. 95 The council sought to distinguish Boral on the basis that the chemical in that case, although released in smaller quantities, was more toxic than the discharge in the present case. It referred the Court to two decisions that it submitted were more comparable: (a) first, that of EPA v Cut and Fill Pty Ltd [2005] NSWLEC 401. The facts of that case concerned approximately 266,000 litres of sediment laden water flowing into a creek over a period of three days. It was estimated that 470 kg of sediment was carried into the creek. There was no actual environmental harm in that case and many of the mitigating factors present in these proceedings were also present on the facts of that case. Lloyd J held it appropriate to discount the penalty by 35% and imposed a fine of $7,800; and

(b) second, the decision in Gosford City Council v Australian Panel Products Pty Ltd [2009] NSWLEC 77. That case involved an accidental spill of approximately 20-50 litres of Phenolic resin products used by the defendant. The resin entered the stormwater system and flowed downstream into Piles Creek. No threatened flora or fauna species were likely to have been impacted by the pollution incident. Heavy rainfall diluted the pollution rapidly resulting in only short term environmental harm. Lloyd J imposed a fine of $25,000 after taking into account all mitigating factors, including a 22% discount for an early plea of guilty. Penalty to be Imposed 96 As discussed above, in my opinion, this case is at the lower end of the spectrum of seriousness. Taking into account all of the circumstances identified above and the penalties imposed in the cases referred to me and considered in those decisions, I am of the view that a penalty of $70,000 discounted by a total of 35% is appropriate (as to the availability of a composite discount see R v Sukkar 172 A Crim R 151 at [53]-[56], Boral at [53] and Cut and Fill at [37]). This results in a total fine of $45,500. Orders 97 The formal orders of the Court are as follows: (1) the council is convicted of the offence as charged;

(3) pursuant to s 247 of POEOA the council is to pay the EPA's professional costs of $15,500 and its investigation costs under s 248 of the POEOA of $2,544; and

(4) the exhibits are to be returned. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Environment Protection Authority v Albury City Council [2009] NSWLEC 169

Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137 Environment Protection Authority v Boral Australian Gypsum Limited [2009] NSWLEC 26 Environment Protection Authority v Waste Recycling and Processing Corporation EPA v Cut and Fill Pty Ltd [2005] NSWLEC 401 EPA v Waste Recycling and Processing Corporation (2006) 148 LGERA 299 Garrett v Freeman (No 5) (2009) 164 LGERA 287 Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 CASES CITED: Gosford City Council v Australian Panel Products Pty Ltd [2009] NSWLEC 77 Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited (No 2) [2009] NSWLEC 6 Hoare v The Queen (1989) 167 CLR 348 Markarian v The Queen (2005) 228 CLR 357 Newcastle City Council v Pace Farm Egg Products [2002] NSWLEC 66 Ngo v Fairfield City Council [2009] NSWCCA 241 Pittwater Council v Scahill (2009) 165 LGERA 289 R v Dodd (1991) 57 A Crim R 349 R v Nichols (1991) 57 A Crim R 391 R v Sukkar 172 A Crim R 151 R v Way (2004) 60 NSWLR 168 Veen v The Queen (1979) 143 CLR 458 Veen v The Queen (No 2) (1988) 164 CLR 465

(1993) 113 LGERA 357

(2006) 145 LGERA 234

(2001) 115 LGERA 304

(2006) 148 LGERA 299

(2009) 164 LGERA 287

(2006) 145 LGERA 189

(2009) 165 LGERA 289

(2002) 123 LGERA 269

(2003) 126 LGERA 219

At a glance

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Judgment (42 paragraphs)

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Cases Cited (27)

Cited By (6)