Environment Protection Authority v Charlotte Pass Snow Resort Pty Ltd [2021] NSWLEC 37 | Case summary

Land and Environment Court (NSW)|2021-04-23|Before: Pepper J

A Ski Resort Discharges Partially Treated Effluent into the Tributary of a Creek

The Resort Deliberately Discharged Effluent from a Sewage Treatment Plant to Avoid an Uncontrolled Discharge

The background facts giving rise to the charges and to the motions were contained in an agreed statement of facts filed for the purpose of the applications to set aside the summonses, the DSOAF, and the documentary and affidavit evidence referred to above.
The Resort changed its name from Charlotte Pass Village Pty Ltd to its current name in about March 2018. The Resort is the head lessee of Charlotte Pass Village pursuant to a lease with the New South Wales ("NSW") Government which commenced on 1 May 2018.
The Resort runs a ski resort at Charlotte Pass Village with accommodation and facilities. It also operates a sewage treatment plant ("the STP").
The Resort and the STP are located within the Kosciusko National Park in Perisher Valley in the NSW Snowy Mountains. The road to Charlotte Pass Village is snow bound in winter requiring over-snow transport from the town of Perisher Valley.
As the evidence of Rizzuto indicates, on 9 July 2019 the Resort (Maclean and Berkery) informed the NSW Environment Protection Authority ("EPA") that it would undertake a controlled discharge of approximately 50,000L of effluent from the STP into the environment in order to avoid an uncontrolled discharge (or overflow). Rizzuto advised the Resort that this would constitute a water pollution offence under the POEOA.

The Environment Protection Licence

On 24 November 2000 the EPA issued the Resort with an environment protection licence ("EPL") pursuant to s 55 of the POEOA (EPL 1591). The EPL authorises the Resort to carry out sewage treatment processing by small plants (of a scale > 20 to 100ML annual maximum volume of discharge) at the STP.
The EPA has varied the conditions of the EPL from time to time since it was issued in 2000. The version of the EPL that was in force as at the time of the alleged offending (dated 17 September 2018) identifies the Resort by its former name.
Relevantly, the EPL contained condition O2.1: 4 OPERATING CONDITIONS … O2 Maintenance of plant and equipment O2.1 All plant and equipment installed at the premises or used in connection with the licensed activity: a) must be maintained in a proper and efficient condition; and b) must be operated in a proper and efficient manner. Note: The requirements of O2.1 apply to the whole of the premises, including the reticulation system.

The STP

The STP accepts wastewater from the Charlotte Pass Village throughout the year. It is located approximately 300-400m from the main resort area. It operates year round. The STP operates both automatically and manually, and must be attended to daily by an operator. The Resort employs Damien Berkery as a full-time environmental services manager to operate and maintain the STP.
The STP is designed to operate automatically under the control of a Programmable Logic Control ("PLC") but it can be operated manually.
According to the DSOAF, the original STP was installed in the mid to late 1980s. The STP was originally designed as a continuous aeration system, however, it was later upgraded to a Biological Batch Reactor treatment plant based upon extended aeration activated sludge technology. In 2002, fixed media was placed in two of the aeration tanks to assist with the treatment process. There were no further major upgrades to the STP until 2020.
The main bioreactor consists of five interconnected tanks arranged in a series (the old STP was incorporated into the new system in 2001):
The raw sewage is ground up and pumped from the main pump station into tank 1 (the biosorption tank) where various chemicals are added. The sewage then passes sequentially through tanks 2, 3, 4, and 5 for aeration purposes. Adequate treatment of the effluent through the STP requires the aeration to cycle on and off in order to provide a settlement period which assists in the treatment of nitrogen in the effluent. The treated sewage then passes into a lagoon, where it is pumped (automatically or manually) through a set of filter feed pumps through sand filters and a UV steriliser, before being directed, through a pipe, into an unnamed tributary of Spencers Creek ("the tributary"). The discharge point is referred to as "Discharge Point 1" in condition P1.2 of the EPL. The effluent from the STP does not discharge into the tributary continuously.
Excess biomass can, as required, also be pumped manually by the operator from tank 5 and the lagoon into a sludge storage tank where it is stored for a number of months. The supernatant liquid from the holding tank is then directed back into tank 1 for retreatment.
Tanks 1 and 2 are housed inside an insulated shed. All other tanks are outside and are exposed to the elements.
The operation of the STP, whether in automatic or manual mode, requires daily deliberate decisions and assessments.
The volume of effluent leaving the STP is measured by flow meters, which the Resort records and retains. The average daily flow during the 2019 winter was approximately 200kL per day.
Prior to the upgrade to the STP in 2020, tanks 2 to 5 were equipped with a series of fine bubble diffusers, which are 300-400mm diameter rubber disks. The diffusers were attached to cast iron pipework via droppers that were submerged in the tanks. Air was pumped through the pipes and the diffusers by a roots style blower.
Diffusers promote aerobic activity by pumping air into the effluent in the tanks to facilitate oxygen dissolution, which the bacteria in the wastewater needs to survive. If the aeration system fails and remains off for more than six hours, the bacteria in the tanks will begin to die in large numbers. The aeration cycles are controlled by the PLC, which is supposed to automatically adjust the plant aeration mode to coincide with the load, as determined by the flow meter, by either changing the aerator time or by switching to another blower.
The diffusers are illustrated below:
The diffusers in tanks 2 to 5 were installed in the late 1980s when the STP was constructed. The normal lifespan of diffusers is about six years. The Resort did not replace any of the diffusers until 2020.
It is industry practice for diffusers to be chemically cleaned at least every two years by either removing them from the tanks and soaking them in acid, or by leaving them in place and injecting acid into the air lines to clean the diffusers of chemical fouling that builds up on the membrane surface and in the holes. The Resort had not cleaned the diffusers at any time since they were first installed in the late 1980s.
In about 2002, fixed media was installed in tanks 2 and 3 on top of the bolted down diffusers. Accordingly, the diffusers in those tanks could not be changed while the STP was operating at full capacity. The diffusers in tanks 2 and 3 could have been changed during the off season (with a crew and a crane) but the Resort did not do so.
In the Resort's 2017-2018 and 2018-2019 Environmental Work Plans prepared in about October 2016 and 2017 respectively, it was noted that the aeration pipeline between tank 2 and tank 5 needed to be replaced as a matter of urgency, together with the unions, risers, diffusers, and control valves.
The Resort's 2020 Environmental Work Plan prepared in about October 2018 stated that the steel aeration line or header pipe needed to be replaced as "it has holes in it and no longer fit for purpose". It also recommended to "replace all diffusers as the required dissolved oxygen levels cannot be currently achieved" and it noted that "there is no record of these being replaced since the STP construction in 1989".

The Acts Giving Rise to the Alleged Offences

On 4 July 2019 the Resort became aware, through daily operational procedures and effluent quality testing, that there was an elevated nitrogen (ammonia) concentration in the STP.
The next day the Resort notified the EPA that the ammonia levels at the STP were above normal, but that it was not currently discharging effluent from the STP.
In an effort to reduce ammonia levels, the Resort increased the aeration in the tanks to 100%, which decreased the settlement time assisting in the reduction of nitrates, a component of nitrogen.
On 6 July 2019 an officer from the National Parks and Wildlife Service attended the STP to assist the Resort in addressing the ammonia levels.
From 7 to 9 July 2019 the Resort transported effluent from the STP to the Perisher Valley sewage treatment plant to increase capacity at the STP.
On 8 July 2019 EPA officers inspected the STP.
On 9 July 2019 the Resort discharged 12,087L of effluent from the STP into the tributary at Discharge Point 1. The discharge was not continuous over a 24 hour period. The concentration of ammonia in the discharged effluent exceeded the 100th percentile limit in the EPL. The Resort also engaged the services of engineers for assistance.
The following day, the Resort transported some of the effluent from the STP by truck to the Perisher Valley sewage treatment plant. However, the Resort also discharged 58,000L of effluent from the STP into the tributary at Discharge Point 1. The concentration of ammonia in the discharged effluent exceeded the 100th percentile limit in the EPL.
On 11 July 2019 the Resort discharged 52,000L of effluent from the STP into the tributary at Discharge Point 1. The Resort's onsite testing indicated that the effluent had a 4.8 mg/L ammonia-N concentration, exceeding the 90th percentile limit in the EPL.
A technician from Simmonds & Bristow, Jason Keane, arrived to assist the Resort in the operation of the STP. He remained on site until approximately 23 July 2019.
On 12 July 2019 the Resort discharged 217,627L of effluent from the STP into the tributary at Discharge Point 1. The Resort's onsite testing indicated that the effluent had a 3.75 mg/L ammonia-N concentration, exceeding the 90th percentile limit in the EPL. The ammonia concentration downstream of the STP also exceeded the guideline value for ammonia as a toxicant by up to two times.
The Resort began to observe a pattern of coarser air bubbles in tanks 2, 3, and 5.
Between 14 July and 24 September 2019, the Resort manually discharged differing amounts of effluent from the STP each day. The Resort's onsite testing indicated that the concentration of ammonia-N in samples of discharged effluent varied each day and that on each occasion it exceeded the 100th percentile limit in the EPL.
During this period effluent was not discharged from the STP on a continuous basis.
Samples of effluent discharged on 16 July 2019 and 18 and 24 September 2019 were taken. On 16 July 2019 EPA officers inspected the STP and took samples of the effluent and water samples from upstream and downstream of the STP which were subsequently analysed by an accredited laboratory. The samples indicated that the effluent had a 11.5mg/L ammonia-N concentration, exceeding the 100th percentile limit in the EPL, and a 14.6mg/L concentration of total nitrogen, exceeding the 90th percentile limit in the EPL. The testing also revealed that the ammonia concentration in the tributary downstream of the STP, was 2.94 mg/L, exceeding the water quality guideline value for ammonia as a toxicant by more than three times. The total nitrogen concentration at this site was 5.8 mg/L, exceeding the water quality guideline value for total nitrogen by more than 20 times.
For example, on 18 July 2019 the Resort discharged 152,008L of effluent from the STP into the tributary. The Resort's onsite testing indicated that the effluent had a 21.00 mg/L ammonia-N concentration, exceeding the 100th percentile limit in the EPL. The total nitrogen concentration was 26.4 mg/L, exceeding the 100th percentile limit in the EPL.
The Resort also sent samples of the effluent that it had collected on that day to an accredited laboratory. The results indicated that the samples had a 21.6 mg/L ammonia-N concentration and a 26.4 mg/L total nitrogen concentration.
From 18 to 28 July 2019, the ammonia concentrations 250m downstream of the STP exceeded the default water quality guideline value for ammonia as a toxicant by almost nine times and for ammonia as a nutrient by more than 500 times. The ammonia concentration 500m downstream of the STP also exceeded the default water quality guideline value for ammonia as a nutrient.
The effluent discharged on 10, 18, 23 and 24 July, 1, 5 and 21 August, and 2 September 2019 was sampled, revealing that the concentration of total nitrogen exceeded the 100th percentile limit in the EPL.
For example, on 23 July 2019 the Resort discharged 102,153L of effluent from the STP into the tributary. The Resort's onsite testing indicated the effluent had a 19.00 mg/L ammonia-N concentration, exceeding the 100th percentile limit in the EPL.
That day EPA officers inspected the STP and took samples of the effluent and water from upstream and downstream of the STP which were subsequently analysed by an accredited laboratory. The samples indicated that the effluent had a 39.3 mg/L ammonia-N concentration and a 40.2 mg/L total nitrogen concentration, both exceeding the 100th percentile limit for those pollutants in the EPL. The testing also revealed that the ammonia concentration downstream from the STP was 13.2 mg/L, which was more than 600 times greater than the concentration of ammonia upstream of the STP, and more than 15 times the water quality guideline value for ammonia as a toxicant.
On 26 July 2019 the Resort discharged 96,766L of effluent from the STP, some of which was discharged into the tributary at Discharge Point 1 and some of which was discharged through a snow gun onto the snow near Discharge Point 1. The onsite testing indicated the effluent had a 21.00 mg/L ammonia-N concentration, exceeding the 100th percentile limit in the EPL.
The Resort kept the EPA informed about the functioning of the STP on an almost daily basis up until 28 July 2019, and thereafter, as directed by the EPA.
By 17 September 2019 the Resort had completed the installation of a temporary aeration solution in tank 3, after which the levels of dissolved oxygen in that tank immediately increased.
Nonetheless, further discharges occurred in varying amounts each day from 17 to 24 September 2019.
From 29 September 2019 to 4 October 2019, the ammonia-N concentrations in the effluent that the Resort discharged started to decrease but continued to exceed the 90th percentile limit in the EPL.
By 5 October 2019 the ammonia-N concentration in the effluent that the Resort discharged complied with the limits in the EPL.
In order to avoid tendering voluminous material at the hearing of the motions, the parties agreed that the Review of Charlotte Pass Snow Resort STP by Dr Boyden ("the Review") indicated that the diffusers were "heavily fouled with iron salts…and apatite and gypsum" which "would have greatly impeded the performance of the diffusers for the efficient transfer of oxygen." Only the diffusers in tank 4 (easily replaceable) were operating adequately. The Review noted that the diffusers could have easily been removed and chemically cleaned in the offseason, which if carried out every two years and preferably after each ski season, would have maintained optimum performance.

The Pollute Waters Offence

In determining whether or not there is asserted duplicity, the first step in any analysis is to identify the act or conduct prohibited by the law creating the offence (Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373; (2006) 165 A Crim R 151 at [9] and Kiangatha Holdings Pty Ltd v Water NSW [2020] NSWCCA 263 at [26]).
In the pollute waters offence, the prosecutor alleges that the Resort, as occupier of the STP, discharged partially treated effluent containing elevated levels of ammonia and total nitrogen into the tributary of Spencers Creek near the STP and downstream.
The summons for the pollute waters offence seeks the following order ("the pollute waters summons"): 1 An order that the Defendant, Charlotte Pass Snow Resort Pty Ltd (ACN 001 261 892), whose registered office is at Kosciuszko Road, Kosciuszko in the State of New South Wales, appear before a Judge of the Court to answer the charge that, from about 9 July 2019 to about 24 September 2019 inclusive, at or near the Charlotte Pass Village sewage treatment plant, Charlotte Pass Village, Perisher Valley in the State of New South Wales (the STP), committed an offence against section 120(1) of the Protection of the Environment Operations Act 1997 (POEO Act) in that it polluted waters. Particulars a. Waters An unnamed tributary of Spencers Creek near the STP, and downstream thereof. b. Pollutant Partially treated sewage effluent containing elevated levels of ammonia and total nitrogen. c. Manner of breach The Defendant, being the occupier of the STP, discharged the Pollutant from the STP into the Waters.
The pollute waters offence is not alleged to be a continuing offence.
Section 120 of the POEOA relevantly provides that: 120 Prohibition of pollution of waters (1) A person who pollutes any waters is guilty of an offence.
"Waters" is defined in the Dictionary of the POEOA to mean: waters means the whole or any part of - (a) any river, stream, lake, lagoon, swamp, wetlands, unconfined surface water, natural or artificial watercourse, dam or tidal waters (including the sea), or (b) any water stored in artificial works, any water in water mains, water pipes or water channels, or any underground or artesian water.
The term "water pollution" is broadly defined in the Dictionary as follows: water pollution or pollution of waters means - (a) placing in or on, or otherwise introducing into or onto, waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, so that the physical, chemical or biological condition of the waters is changed, or (b) placing in or on, or otherwise introducing into or onto, the waters (whether through an act or omission) any refuse, litter, debris or other matter, whether solid or liquid or gaseous, so that the change in the condition of the waters or the refuse, litter, debris or other matter, either alone or together with any other refuse, litter, debris or matter present in the waters makes, or is likely to make, the waters unclean, noxious, poisonous or impure, detrimental to the health, safety, welfare or property of persons, undrinkable for farm animals, poisonous or harmful to aquatic life, animals, birds or fish in or around the waters or unsuitable for use in irrigation, or obstructs or interferes with, or is likely to obstruct or interfere with persons in the exercise or enjoyment of any right in relation to the waters, or (c) placing in or on, or otherwise introducing into or onto, the waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, that is of a prescribed nature, description or class or that does not comply with any standard prescribed in respect of that matter, and, without affecting the generality of the foregoing, includes - (d) placing any matter (whether solid, liquid or gaseous) in a position where - (i) it falls, descends, is washed, is blown or percolates, or (ii) it is likely to fall, descend, be washed, be blown or percolate, into any waters, onto the dry bed of any waters, or into any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted, or (e) placing any such matter on the dry bed of any waters, or in any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted, if the matter would, had it been placed in any waters, have polluted or have been likely to pollute those waters.
The elements of the pollute waters offence are: 1. the act of polluting, or likely to pollute, by the action of placing or introducing; 2. in a prescribed manner; 3. into waters; 4. by a person.
The pollute waters offence is a result offence. That is, the pollution is an essential ingredient of the offence (Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78 at 83). This observation was made in Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority [2000] NSWCCA 367; (2000) 50 NSWLR 127 where the Court of Appeal opined that (at [48] and [49]): 48. Section 16 has been called a "result offence", in the sense that the consequence, i.e. the pollution, is an essential ingredient of the offence. (Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78 at 83). However as Hunt CJ at CL said in Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79 at 82, after referring to the classification as a "result offence": "In Brownlie v SPCC, Gleeson CJ said that he was adopting and modifying the classification so that, so far as s16(1) is concerned, the prosecution is required to prove both the conduct of the defendant in placing the material in the waters and the pollution of the waters as a consequence of the defendant having done so." 49. I agree. Both the polluting and the pollution are essential ingredients of the offence under s16. The charge in this case referred only to the pollution.
In the context of the pollute waters summons the prosecutor must therefore prove beyond reasonable doubt that: 1. the Resort placed or introduced partially treated sewage effluent into (or in a place where it was likely to move into) the tributary; and 2. that the partially treated sewage effluent polluted, or would have been likely to pollute, the tributary and downstream thereof.
Relevant particulars of the conduct relied upon by the prosecutor for the purpose of the pollute waters offence in the DSOAF are as follows: 1. treated water is discharged from the STP into the tributary; 2. the STP is designed to operate automatically but it can be operated manually, and it must be attended to daily by an operator; 3. during the charge period the STP did not operate automatically; 4. following treatment in the STP's tanks, the treated sewage passes into a lagoon where it is pumped (automatically or manually) via a set of filter feed pumps through sand filters and a UV steriliser before being directed by a pipe into the tributary; 5. from about 9 July to 24 September 2019 inclusive, the Resort discharged partially treated effluent containing elevated concentrations of ammonia-N and total nitrogen, thereby polluting the tributary; 6. on the days immediately preceding the charge period the Resort was operating the STP but any discharge of effluent from the STP into the environment was within licence conditions; 7. the Resort kept the EPA informed about the function of the STP on an almost daily basis up until 28 July 2019; 8. each allegation of discharge into the tributary is by reference to a single day. Each allegation specifies a volume of effluent discharge from the STP and in most cases provides the ammonia-N concentration of the discharge; 9. there is no allegation that there was a single discharge spanning a period greater than one day; and 10. when read together, paragraphs 13, 16, and 47 to 59 of the DSOAF indicate that discharges of effluent into the tributary from the STP were caused by deliberate decisions taken daily to direct effluent from the storage lagoon into the tributary. Those decisions were given effect to by manual action causing the effluent to be pumped from the lagoon into the tributary.

The Breach of Licence Offence

As particularised, the prosecutor essentially alleges that the Resort contravened condition O2.1(a) of the EPL by failing to maintain the diffusers installed in tanks 2 to 5 of the STP in a proper and efficient condition insofar as the diffusers were not able to efficiently transfer oxygen through the effluent in the aeration tanks.
The summons for the breach of licence offence charges the Resort as follows ("the breach of licence summons"): 1 An order that the Defendant, Charlotte Pass Snow Resort Pty Ltd (ACN 001 261 892), whose registered office is at Kosciuszko Road, Kosciuszko in the State of New South Wales, appear before a Judge of the Court to answer the charge that, from about 9 July 2019 to about 18 September 2019, at the Charlotte Pass Village sewage treatment plant, Charlotte Pass Village, Perisher Valley in the State of New South Wales (the STP), committed an offence against section 64(1) of the Protection of the Environment Operations Act 1997 (POEO Act) in that it was the holder of a licence, a condition of which was contravened by a person. Particulars a. Licence Environmental Protection Licence number 1591. b. Licence condition contravened Condition O2.1, which states: "O2.1 All plant and equipment installed at the premises or used in connection with the licensed activity: a) must be maintained in a proper and efficient condition; and b) must be operated in a proper and efficient manner." c. Manner of breach The Defendant failed to maintain the diffusers installed in aeration tanks 2 to 5 of the STP in a proper and efficient condition, in that they were not maintained in such a condition that they were able to efficiently transfer oxygen through the effluent in the aeration tanks.
The breach of licence offence is alleged to be a continuing offence.
Section 64(1) of the POEOA provides that: 64 Failure to comply with condition (1) Offence If any condition of a licence is contravened by any person, each holder of the licence is guilty of an offence.
The elements of the breach of licence offence are that: 1. the Resort held an EPL; and 2. any person contravened a condition of that EPL.
The breach of licence offence is a status offence. That is, it does not matter why, by whom, or how condition O2.1 of the EPL was contravened (Environment Protection Authority v Bartter Enterprises Pty Ltd (No 3) [2020] NSWLEC 114 at [23]). Accordingly, the prosecutor must establish to the criminal standard that a person contravened condition O2.1 of the EPL requiring that "all plant and equipment installed at the premises or used in connection with the licensed activity…must be maintained in a proper and efficient manner".

The Rule Against Duplicity

The applicable legal principles in determining when a summons will infringe the rule against duplicity are often easier stated than applied, especially in the context of environmental crime, where the offending conduct can occur over an extended period of time (for example, in cases concerned with the unlawful clearing of native vegetation or development absent, or contrary to, consent). The reasoning in Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202; (2018) 362 ALR 359 and Kiangatha Holdings Pty Ltd v Water NSW [2020] NSWCCA 263 is not, for example, easy to reconcile with that contained in earlier decisions such as Hakim v Waterways Authority (NSW) [2006] NSWCCA 376; (2006) 149 LGERA 415.
The history, purpose and legal principles concerning the doctrine of duplicity were set out comprehensively by Leeming JA in Environment Protection Authority v Truegain Pty Ltd [2013] NSWCCA 204; (2013) 85 NSWLR 125 (at [31]-[52]). These were repeated in Environment Protection Authority v Riverina Australia Pty Ltd [2015] NSWCCA 165; (2015) 90 NSWLR 57 (at [91]-[98] per Hall J) and again in Tropic Asphalts (at [47]-[54] per Bathurst CJ).
Having regard to those authorities and the cases cited therein, the legal principles may be summarised as follows: 1. the rule against duplicity prohibits a single count in an indictment (in this Court, a summons) charging a person with the commission of more than one offence (Truegain at [31] and [34] and Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77 at 104); 2. the rule is one of fairness to a defendant (S v R [1989] HCA 66; (1989) 168 CLR 266 at 285). The object or purpose of the rule against duplicity is that there should be no uncertainty as to the offence charged (Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 487 per Dixon J). The rule has been described as "an essential part of the concept of justice in criminal cases" and as one of the "fundamental rights" of an accused (Miller at 497-498 per Evatt J quoted in Truegain at [44]-[45] per Leeming JA); 3. an indictment or summons is patently bad for duplicity where it is apparent on its face that more than one offence has been charged in the one count (Miller at 487 per Dixon J and Hamzy v R (1994) 74 A Crim R 341 at 343-344); 4. alternatively, there may be latent duplicity (or latent ambiguity or uncertainty) where the duplicity is not apparent on the face of the charge but arises from the manner in which the prosecution presents its case (Miller at 486 per Dixon J and S v R at 274); 5. where the acts form part of the same transaction or criminal enterprise, they may be charged in a single count (Truegain at [48] and Walsh at 107-109 per Kirby J). In this regard the Court examines whether the criminal acts occurred in close temporal and physical proximity in order to be susceptible to treatment as a single count (Walsh at 107); 6. the question of whether a statute attaches criminality to an ongoing criminal enterprise, as opposed to a particular act, is one of construction (Truegain at [51]-[52]); 7. if a court concludes that a charge is duplicitous, in the first instance the Court should require the prosecutor to amend the charge to cure the defect if it can be cured (Hedberg v Wodhal [1913] HCA 2; (1913) 15 CLR 531 at 536 and Walsh at 110 per Kirby J); and 8. the authorities emphasise that a strict approach to duplicity remains the law in this country (Tropic Asphalts at [50]-[53] citing Johnson at 483 per Dixon J and Walsh at 110 per Kirby J). But matters of fact and degree are apt to arise in the application of the principles (Truegain at [72] per Leeming JA).
Most recently, the Court of Criminal Appeal summarised the legal principles in the context of an offence against s 120 of the POEOA in Kiangatha, where Fagan J relevantly stated (at [34]-[36]): 34. "[T]he general rule of our legal system is still this: that a prosecutor may not ordinarily charge in one count of an indictment, information or complaint two or more separate offences provided by law": Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26 at p 107 (Kirby J). Two exceptions are recognised. The first is where the alleged offence is of a continuing nature, such as maintaining a brothel or carrying on a business without a statutory licence. In such cases conduct that continues over an extended period, any part of which would constitute the offence, may all be charged in one count. The second exception is that a single charge may be laid in respect of multiple acts that may each individually constitute a separate offence if those acts are sufficiently connected with each other to amount to a single compendious instance of offending. This exception was expressed by Lord Diplock in the following terms in Director of Public Prosecutions v Merriman [1973] AC 584 at 607: The rule against duplicity, viz that only one offence should be charged in any count of an indictment ... has always been applied in a practical, rather than in a strictly analytical, way for the purpose of determining what constituted one offence. Where a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the eighteenth century, to charge them in a single count of an indictment. 35. In Walsh v Tattersall Kirby J drew together and analysed the authorities concerning the second exception in the following passages (at pp 107-109; some citations omitted): 5. The apparent artificiality of insisting on applying the rule against duplicity in its full rigour has been highlighted by actual and theoretical instances that have arisen, or been contemplated, where criminal acts occurred in very close proximity to each other. If, for example, criminal acts occurred within a few minutes of time and in close physical proximity, could they be regarded as components of the one activity, so as to be susceptible to treatment as a single count? (Jemmison v Priddle [1972] 1 QB 489). If the events were seen as part of the one transaction or criminal enterprise this approach has been held to be permissible in England: Director of Public Prosecutions v Merriman. … Many of the apparently conflicting judicial opinions, so criticised by the commentators, represent nothing more than attempts by judges to characterise multiple acts upon which the prosecution relied and to decide whether or not they could be fairly viewed as the one transaction or criminal enterprise so as to escape an attack on the ground of alleged duplicity: Jemmison v Priddle. […] 6. … Various verbal formulae have been offered as a suggested test for whether the criminal acts are sufficiently close in time and space as to "fairly and properly be identified as part of the same criminal enterprise or the one criminal activity": Hamzy (1994) 74 A Crim R 341 at 348. … Ultimately, what is presented is a question of fact and degree for decision in each case: Eades (1991) 57 A Crim R 151 at 156. Various indicia are proposed to sustain a single count against the charge of duplicity, notwithstanding that it may permit evidence to be adduced of events which, taken individually, could constitute separate offences. The indicia include: (a) the connection of the events in point of time; (b) the similarity of the acts; (c) the physical proximity of the place where the events happened; and (d) the intention of the accused throughout the conduct: Weinel v Fedcheshen [1995] SASC 5216; (1995) 65 SASR 156 at 170 per Perry J. Perhaps an indication of the considerable difficulty of the task is to be found in the fact that, in many of the leading cases, there is (as in this case) a division of judicial opinion. For instance, Latham CJ dissented in Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77 at 472; Kitto J dissented in Montgomery v Stewart; and Brennan J (as he then was) dissented in S v The Queen (1989) 168 CLR 266; [1989] HCA 66 at 267. 36. Kirby J rejected (at p 110) any reduction in "the strict approach to resolving questions of duplicity in the pleading of criminal charges" and noted that "a strict approach has been consistently applied by this Court", citing Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77, Iannella v French (1968) 119 CLR 84; [1968] HCA 14 and S v The Queen (1989) 168 CLR 266; [1989] HCA 66. Whilst emphasising strictness of application, his Honour did not question the recognised exceptions to the rule against duplicity in cases of, first, continuing offences and, secondly, single criminal transactions. At p 112 his Honour said: This Court should adhere to its longstanding insistence that, save for statutory warrant and for the exceptional cases of continuing offences or facts so closely related that they amount to the one activity, separate offences should be the subject of separate charges.
Kiangatha concerned the construction of a road in sections which created significant areas of disturbed soil and sediment upon the land. The defendant failed to implement sediment and erosion control measures that adequately dealt with the sediment and erosion flow from the earthworks, that then fell or was washed into ephemeral drainage lines in dry gullies leading to Murdering Creek and Gibraltar Creek. The Court of Criminal Appeal held that each instance of placement of material in a position where it was likely to make its way into a dry gully was a complete offence at the moment of placement. The offence could not therefore be characterised as a continuing offence (at [50]): 50. Each instance of placement of material in a position where it was likely to make its way into a dry gully was a complete offence against s 120 at the moment of placement. Each placement directly into a dry gully, for the purposes of the actual pollution charges, was likewise a complete offence at the moment of placement. A number of individual acts, each one complete at the moment of its performance, do not become something that is "continuing" just by being drawn together under the one charge. Taken together, they remain a number of completed acts. The combination of all of the placements that are relied upon in this case under each charge respectively does not assume the character of a continuing infringement so as to be excused as an exception to the rule against duplicity.
Similarly, the totality of the activity did not constitute a single criminal enterprise for the purpose of laying one charge in respect of acts that ought to have been prosecuted as multiple offences (at [55]-[58]): 55. The respondent submitted to this Court that, notwithstanding that individual constituents of the overall conduct alleged under each of the likely pollution charges may have involved separate offences, the totality falls within the exception to the general rule against duplicity as constituting a single criminal enterprise. The following was submitted: [T]he indicia of commonality include the period of time over which the act took place (continuous over several months), the similarity in repetition of the acts required to build the road (ie driving a bulldozer over many days), the physical proximity of a place where the events happened (a continuous road, built across multiple parcels of land with the same ownership), and the intention of the [applicants) throughout the conduct (to build one road). [T]here was one contractor, acting an instruction from the [applicants] throughout, who carried out the activity in an unchanged fashion over the course of 6 months, almost without interruption, pursuant to an overall scheme designed by the [applicants]. It is artificial to view the construction of each part of the road closest to each specified drainage line as activities separate from one another. 56. I do not accept that these features are sufficient to unify the alleged conduct into a single criminal transaction for the purposes of laying one charge in respect of acts that could be prosecuted as multiple offences. The fact that the numerous placements of soil and sediment took place in the course of building one road has been a constant refrain in the respondent's submissions at first instance and in this Court. But it is not a significant consideration when one has regard to the fact that the construction took place over five months (from early May to the beginning of October) and extended over a length that has been alternately referred to as 8 km or 10 km, through variable features of terrain and in proximity to a significant number of distinct dry gullies. 57. The learned primary judge was impressed with the common sense of regarding "the construction of the Road as one activity which involved various acts which were closely related to the next and were part of one overall transaction": at [80]. But it does not follow from recognising the road construction as a single engineering project that one may regard numerous individual acts, committed in the course of that project and being of a kind that s 120 forbids, as an "overall transaction" from the point of view of criminal pleading. The fact that all placements of soil took place during five months of construction of one road means that the placements of soil in proximity to widely separated gullies necessarily took place at distinct times and locations as work progressed. 58. The uniformity of the construction method by which each separate placement of soil is likely to have been made, namely, using a bulldozer operated by a single contractor, contributes no weight to the respondent's endeavour to construe numerous placements as a single transaction. The allegedly consistent method simply means that the many separate acts, each allegedly infringing s 120 of the Protection of the Environment Act, were of a similar kind. Repetition of similar acts at different locations and times does not weld those acts into one. The fact that the applicant had only one intention, to construct a road, is also not a significant feature in support of the single transaction argument in this case.
The Court nevertheless acknowledged that there was "a lower limit to the analysis" (at [60]): 60. There must certainly be a lower limit to the analysis of soil placements along this road into separate infringements of s 120. I accept that it would not be necessary, in order to avoid duplicity, for a prosecutor to lay a separate charge for each bucket load from an excavator or each thrust of a bulldozer. A number of such applications of a machine leading to a placement of material where it was likely to find its way into single dry gully, could no doubt be properly charged as one offence. Depending upon the circumstances, it may be that even if such actions continued over more than one day they could properly be so charged. But what the respondent has endeavoured to consolidate into a single instance of infringement of s 120, to be prosecuted on one count, is far more ambitious than joining up as one event several bucket loads or dozer pushes at a single location near a single gully.
In Truegain a company held an EPL under the POEOA which authorised it to carry out "waste processing (non-thermal treatment)" on its premises. By single summons the prosecuting authority alleged that the company had committed one breach of s 64(1) of the Act by contravening a condition of the EPL in failing to carry out authorised activities in a competent manner insofar as the adequate treatment and storage of liquid waste was concerned. As particularised, the allegations related to acts and omissions occurring on different days in respect of different areas of the company's premises.
In holding that the summons was duplicitous, the Court of Criminal Appeal rejected an argument by the prosecuting authority to the effect that it did not matter how often, or in how many ways, the licensee failed to carry out the scheduled activities in a competent manner. As Leeming JA observed (at [65] and [72]): 65. So too here. Section 64 brings all forms of contraventions of licence conditions into a single section. But that merely requires one to turn to the conditions of the licence alleged to have been contravened. Although the prosecutor has relied only on a contravention of condition O.1, that of itself cannot in my view be determinative of the question of duplicity. The question is one of substance, not form, and as soon as one considers the activities which are authorised by the Licence and which are particularised by the prosecutor, one can immediately see the distinct conduct (both acts and omissions) which suffices to constitute an offence. … 72. Matters of fact and degree are apt to arise where duplicity is alleged. However, storage is different from treatment, and the storage alleged to have been performed incompetently took place on different days, and with different equipment, from the treatment which is alleged to have been performed incompetently. In the present case, the charge extends to failure to store and failure to treat. Let it be assumed, favourably to the EPA, that all of the machinery and facilities on Truegain's premises formed a single "entity". Nevertheless, it is plain on the face of the particulars that the conduct and omissions giving rise to the alleged incompetent storage is different (in time, in location, and in content) from the conduct and omissions giving rise to the alleged incompetent treatment.
The result in Truegain may be contrasted with the decision in Environment Protection Authority v Sydney Water Corporation Ltd (1997) 98 LGERA 361, where the charge was for the failure to maintain an industrial plant in an efficient manner contrary to an EPL condition. The charge was particularised by reference to five separate items of equipment on the basis that the sewage treatment plant was a single entity. It was not clear if there was a factual dispute as to whether the five items in question were separate items of plant, but their nature indicated that they were closely linked operationally. The Court of Criminal Appeal remarked that charging a single offence in those circumstances was consistent with authority and practice (at 362 and 363 per Gleeson CJ).

The Pollute Waters Summons is Duplicitous

In addition to the DSOAF and the agreed statement of facts, the Resort relied upon the following evidence to support its submission that the prosecution case essentially comprises numerous discrete discharges of effluent resulting in multiple discrete contraventions of s 120(1) of the POEOA occurring within the charge period.
First, the affidavit evidence of Berkery. Berkery deposed that on 26 and 27 July 2019 effluent was not discharged in the usual way but through a snow gun onto the snow: 14. 26 July 2019: on this day effluent was not discharged in the usual way but through a snow gun. This was done by redirecting the lagoon effluent through a sand filter and UV light treatments and then via the discharge pipe and into a snow gun. The effluent was then sprayed on to snow in the direction of the discharge point near Spencers Creek. Annexed hereto and marked "B" is a map in which I have marked in blue outline the general area that the effluent through the snow gun was sprayed. 15. I decided to try this as an alternative form of discharge as we considered that spreading effluent over the snow might assist with the breakdown of substances in the effluent because of dilution with the snow and sun exposure. This mode of discharge was very labour intensive because it required additional manual intervention to set up the gun and to redirect the lagoon effluent via the snow gun. The actual distribution area by virtue of the snow gun differs according to prevailing weather conditions, principally wind. So, this process was a lot more labour intensive because we had to constantly move and re-adjust the snow gun to account for the wind. Discharging through the snow gun began at around 3:00pm on this day which is confirmed by my handwritten notations "15:00 - snow gun discharge 21mg/L @ 90 L/m" and "Discharge snow gun start 5390235 stop 5487001 90kL - snow gun". 16. 27 July 2019: following the implementation of the snow gun it was necessary to replumb the normal discharge mechanism. Accordingly, in the morning on this day the discharge process was stopped to allow me to carry out the reconnection of the discharge mechanism. This is recorded by my handwritten notation "0830 - change discharge to normal".
Second, Berkery was interviewed by the EPA on 4 and 5 November 2019 and questioned as to the specific time and volumes of certain discharges, including the discharge using the snow gun. He told the EPA that he had used the snow gun after the school holidays "when there wasn't anyone around" (ROI Q/A 265). In relation to the decision-making around the use of the snow gun, he stated that (Q/A 266 to 269): Q.266. Yep, and what was the decision making sort of process around using a snow gun? A. So that was to try assist the dilution of the discharge hitting the waterway by spraying the - the discharge over the snowpack it would take longer to melt and enter the waterway. Q.267. Did you - did you find it to be effective? A. What we found was that the - in the trial that we did of it the - a snow sample was taken from where the snow gun was pointed and was found to be substantially lower in ammonia than what it would have been if it was just discharged. What we did find though is that our infrastructure and pumps weren't obviously designed to pump through a snow gun, which put a bit more load on our discharge pumps and didn't want to continue the risk of those pumps failing, So it was quite a labour-intensive process and reliant on wind direction, intensity, 'cause we obviously were doing it in a controlled fashion and didn't want it to be blowing anywhere else either. Q.268. So roughly how long of a period did you use that snow gun for? A. It was probably 48 hours, yeah. That was not just 48 - like, not just a snow gun. That was - it was only operated when it could be observed. So it would have operated for 12 to 24 hours, I guess, over the two days. Q.269. Constantly or did you have like, you know, maybe an hour or two and then a break? A. No, I had to turn it off and go back to my normal discharge because we could only put a limited amount through the snow gun of - and - but then obviously our capacity was increasing. It wasn't able to keep up with our inflows, essentially. So then they'd have to go back to a normal discharge method and then, when I had a bit of time or capacity, I could then use the snow gun again.
Third, at around the same time, Lachlan Maclean, the Resort's General Manager was also interviewed by the EPA about, among other things, the use of the snow gun. His evidence was as follows (ROI Q/A 417 to 422): Q.417. Great. All right, and in terms of the snow gun that was used? A. Yep. Q.418. When was the snow making gun first used to assist with the - - A. Yeah - - - Q.419. - - - discharge? A. - - - again it was probably towards - probably into - we were probably, sort of, towards the latter part of July by that stage I would say, by the time we started to see whether that was going to give us any opportunity to, you know, to at least reduce any environmental harm that was going because it was at the discharge point and without going into the mechanics of it and the detail of pump pressures and so on and so forth but we did have that ongoing but my understanding is we weren't quite getting enough pressure from the existing pump system that was required to make it effective, if you know what I mean. So, it wasn't really creating the air that we needed - - - Q.420. Okay. A. - - - to try and aerate the - even though it was coming out as, you know, a liquid it wasn't - it was almost just not changing its form or - - - Q.421. Okay. A. Because we weren't getting the pressure and the air required. So, we, we tried it. I'm not sure - it didn't - it lasted for about a week or so but it wasn't really achieving what we thought it would achieve so we - - - Q.422. Yep. A. - - - didn't continue with it as far as I know.
Fourth, on 11 July 2019 Maclean told Matthew Rizzuto from the EPA that (see the affidavit of Rizzuto affirmed 19 June 2020): We transported more than 70,000 litres of influent to the Perisher STP each day on Monday, Tuesday and Wednesday. We had 180,000 litres of inflow yesterday and we were able to remove 70,000 litres of influent by truck to the Perisher STP. Poor weather and snow are currently preventing road access by the pump out truck this morning. Due to large inflows to the plant the treated effluent storage lagoon is reaching capacity. To avoid an uncontrolled discharge from the lagoon to the environment, we have now undertaken another discharge of 50,000 litres to the environment which exceeded the 100th percentile licence limit for ammonia. We have been monitoring the river and that has showed that ammonia levels 20 meters downstream of the discharge point were 2.5mg/L during the discharge. We intend to discharge an additional 50,000 litres to the environment today at an ammonia concentration of 4.8mg/L. Mr Jason Keen from Simmonds and Bristow consulting firm arrived on Wednesday night and will stay here for 7 days to review the STP and provide advice on how to improve the treatment. Results this morning showed that ammonia is at 4.8mg/L in the final storage lagoon. We are going to have to discharge 50,000 litres of effluent now as the snow conditions are making it too difficult to get a pumpout truck into a point where influent can be removed and taken to the Perisher STP.
Earlier in his affidavit, Rizzuto described in detail what he was told about the management of each release of effluent that occurred from 9 to 12 July 2019.
Fifth, in response to a notice issued by the EPA proceeding on the basis that all of the discharges were controlled, on 29 October 2019 the Resort provided particulars of each effluent discharge in a spreadsheet, which included the date of each discharge and its volume. Information regarding the discharge from the snow gun on 26 and 27 July 2019 was also provided.

The Polluting Activity Did Not Constitute a Continuing Offence

As was noted in Kiangatha, "it is not difficult to envisage cases where pollution of waters, contrary to s 120, may be a continuing offence. An example would be where the owner of industrial property permits effluent to toxic waste to discharge from its land into a body of water continuously for days at a time or longer" (at [49]).
However, that is not this case. It was no doubt for this reason that the prosecutor expressly disavowed any suggestion that the offence the subject of the pollute waters summons was a continuing offence (T52:36-42).
When regard is had to the manner by which the pollute waters offence is charged and particularised, especially as further particularised in the DSOAF, and as the evidence outlined above makes plain, each instance of discharge of effluent into the tributary or onto the snow was a complete offence against s 120(1) as at the moment of discharge. Each discharge was discrete, planned, and manually carried out. The Resort did not allow the effluent to discharge continuously, or even automatically, over a number of days. Rather, a deliberate decision was made on each occasion and on separate days to discharge effluent into the tributary or onto the snow. Each discharge constituted an individual act that was complete as at the moment of its performance. Even viewed as a whole, the discharges remained a number of separate completed acts.

The Polluting Activity Was Not a Single Criminal Enterprise

The prosecutor submitted that the Resort's acts of discharging effluent into the tributary during the charge period were sufficiently connected with each other to constitute a single criminal enterprise, thereby falling within the second exception to the rule against duplicity (citing Director of Public Prosecutions v Merriman [1973] AC 584 at 607 per Lord Diplock and Walsh). This was because: 1. the discharges were connected in time insofar as they occurred daily between 9 July and 24 September 2019; 2. the discharges occurred at the same place, that is, through the pipe at Discharge Point 1 leading directly into the tributary; 3. the Resort's intention was consistent, namely, to conduct controlled discharges so that the lagoon in the STP would not overflow; and 4. the acts were similar in nature in that the physical process for discharging effluent was the same each time, namely, an employee manually turned on the feed filter pumps to pump effluent from the lagoon through the UV and sand filters through the pipe and into the tributary at Discharge Point 1.
Although finely balanced, I do not accept that these features are sufficient to unify the alleged conduct into a single criminal transaction for the purpose of laying one charge in respect of acts that ought to be prosecuted as multiple offences. In this regard it is noted that: 1. the discharges took place over approximately three months; 2. the fact that there was an almost uniformly consistent method of discharge merely means that the multiple separate acts of discharge were of a similar kind. The repetition of similar acts does not meld those acts into a continuous whole (Kiangatha at [58]); 3. the discharges were not uniform in volume and resulted in varying levels of pollutant entering the tributary on each occasion. For example, according to the DSOAF, the discharges that occurred on 11, 12, and 13 July 2019, are alleged to have exceeded the 90th percentile limit in the EPL, but not the 100th percentile limit. The Resort may therefore have a defence pursuant to s 122(1)(b) of the POEOA to any act concerning a discharge on those days if it can be demonstrated that over the 12 month reporting period 90% of the samples did not exceed 2mg/L of ammonia concentration. While the prosecutor stated that this defence was not plausible given the Resort's on-site testing, this is ultimately a matter for evidence before the trial judge; and 4. only limited weight ought to be placed on the fact that the Resort's intention in committing the alleged offences was consistent. In Kiangatha the defendant's intention was equally consistent, viz, to construct the road.
By consolidating into a single breach of s 120(1) of the POEOA multiple discharges of effluent occurring over a three month period, the prosecutor is going well beyond, borrowing the example in Kiangatha, "joining up as one event several bucket loads or dozer pushes at a single location near a single gully" (Kiangatha at [60]). As the facts here demonstrate, a decision was made by the Resort to manually stop and manually start discharging varying quantities of effluent into the tributary each day. Testing of the effluent sometimes occurred prior to recommencing its discharge. These characteristics rendered the offence separate and complete on each occasion that a decision was made, and executed, to turn the pump on and to discharge effluent.
In Kiangatha factors such as the different location of the placement of the excavated material where it was likely to, or did, find its way into multiple dry gullies, together with the effluxion of time between excavation events, weighed heavily, if not determinatively, against the acts constituting a single criminal enterprise.
It is acknowledged that such factors are not apparent on the facts of this application. However, there is nothing about the offending that took place on 9 July 2019 and the offending that occurred on 24 September 2019 that can be described as close in time (Walsh at 109 per Kirby J). Equally, the snow gun discharge on 26 and 27 July 2019 was neither close in time, space, or method, to the other alleged offending acts occurring within the charge period.
Furthermore, while the overall intention of the Resort may have remained constant during this period (to avoid an overflow), the Resort's daily intention varied insofar as a decision was separately made each day to discharge differing volumes of effluent into the tributary.
In my opinion, therefore, the difference between the facts underlying this application and those in Kiangatha are not so great that a different conclusion as to the duplicitous content of the summonses is demanded.
The present case is not dissimilar to the decision in Tropic Asphalts, where the defendant contravened a condition of a development consent by operating a temporary mobile asphalt batching plant in excess of its permitted maximum daily production capacity of no more than 150 tonnes "per day". The summons particularised the contravention as occurring between 20 January 2015 and 18 March 2015.
It was held that the charges were bad for duplicity because, properly construed, the conditions made it plain that each time the daily prescribed maximum output was exceeded the offence was complete (at [59]): 59. In my opinion, each breach of condition 4 and condition 6 constitutes a separate contravention of s 76A(1)(b) of the EPA Act because the relevant contravention is the carrying out of the relevant act stated in the condition on a particular day. A separate contravention occurs on each day that the plant produces more than 150 tonnes (the Second Charge) or where more than 12 trucks enter or leave the site of the plant on the day in question (the Third Charge). This is consistent with the plain language of each of the conditions, which refer in terms to the particular limitations being imposed "per day".
This meant that the offending was neither a continuing course of conduct nor a single criminal enterprise and that each day the cap was exceeded constituted a separate offence that had to be charged as such.
Although there is no equivalent to the "per day" proscription in the present case, it remains the fact that, applying the reasoning underlying the decisions in Tropic Asphalts and Kiangatha, each time that it was decided that a discharge of a certain quantity of effluent should occur into the tributary and each time that this intention was manually and deliberately carried out, a pollute waters offence was complete and ought to have been separately charged.
Even if I am wrong in the above analysis, if nothing else, the events of 26 and 27 July 2019 render the pollute waters summons bad for duplicity and the prosecutor must be put to an election to amend the summons to avoid the duplicity in respect of these incidents. As the evidence discloses, on those days an entirely different method of discharge of effluent at a different location (that is, by way of snow gun onto the snow) occurred. In no way can this action be viewed as part of any single compendious criminal activity of discharging effluent into the tributary at Discharge Point 1. The fact that the effluent was on those days discharged partly through the snow gun and partly through Discharge Point 1 into the tributary does not, contrary to the submission of the prosecutor, render it "similar enough".
While the prosecutor need not prove every particular of an offence as charged, and while it may be accepted that discharging effluent using a snow gun may constitute the offence of pollute waters within the meaning of paragraph (d) of the definition of "water pollution", that is not the offence as charged. Were it otherwise, the manner of causation of the pollution would be different from that pleaded because the discharging of the pollutant did not occur "into the Waters" (that is, the tributary). Such distinctions are not matters of form, but of substance (Truegain at [65] per Leeming JA).
As was stated by Kirby J in Walsh (at 112): The Act under which the appellant was charged clearly contemplated that obtaining each payment or benefit was a separate offence. Each should have been the subject of a separate charge. This was apparently the original intention of the police and perhaps of the prosecutor. Unwisely, and in my view unlawfully, it was departed from. That departure resulted in a count which manifested the defect of latent duplicity. The significance of that defect was not really demonstrated until all of the evidence was produced. The result was that nobody - prosecutor, accused or magistrate - directed attention, or sufficient attention, to the ingredients of each individual offence. That is enough to strike at the validity of the trial.
In Walsh a majority of the High Court of Australia held that a charge that alleged that between October 1992 and October 1993 the defendant obtained by dishonest means the payment of benefits by pretending to be ill was duplicitous or was not an offence under the relevant legislation. Nine periodic payments had been obtained over 11 months. The charge rolled up in the one count nine acts of obtaining by dishonest means. Kirby J held that a separate offence was created by the relevant statute for each payment made. A single charge in respect of the whole course of conduct could not be justified and was duplicitous.
The prosecutor submitted that a finding of duplicity would result in an excessive number of charges having to be laid against the Resort (78 in total: T52:24). But administrative inconvenience is no answer to the rule against duplicity. Nor is the contention that no unfairness results to the Resort in charging multiple separate acts of pollute waters in the one summons (Kiangatha at [66]). As was opined in Kiangatha (at [68]-[69]): 68. None of the difficulties identified by Smart AJ would be any impediment to the prosecutor in the present case identifying a series of discrete offences against s 120 and charging them individually. Each such charge could be pleaded as having been committed between 1 May 2017 and 4 October 2017, if the prosecutor is unable to obtain more specific information about when particular placements of soil may have taken place at relevant locations. With respect to the allegations of actual pollution, there would be no difficulty about pleading three separate charges, one in respect of each of the Priority Areas. With respect to the instances of likely pollution, the respondent could readily identify by map coordinates the separate locations at which soil was placed in proximity to a gully that was likely to be polluted by erosion of the soil into it. The specific part of the gully that was placed at risk of such transfer of soil could also be identified by map coordinates. 69. Determination of how many such charges should be laid would be a matter for the exercise of the prosecutor's discretion. As in all such cases of multiple offending the prosecutor would no doubt take account of the comparative strength of the evidence as between the various infringements and would charge a sufficient number of offences to reflect the overall criminality. Making such judgments is a routine daily activity of prosecuting authorities that enforce the general criminal law.
For these reasons, I find the pollute waters summons duplicitous.
The pollute waters summons ought therefore be stayed until the prosecutor elects and particularises in relation to the pollute waters summons the single offence contrary to s 120(1) of the POEOA upon which it will proceed.

The Breach of Licence Summons is Not Duplicitous

The Resort argued that the breach of licence summons was duplicitous on two bases: 1. first, because the failure to maintain the diffusers in a proper and efficient condition as particularised occurred over a nearly 10 week period wherein multiple offences were committed. Once a diffuser was not maintained so that it was not able to perform its function of aeration to an appropriate standard, the act constituting the offence with respect to that diffuser was complete; and 2. second, the contravention of the requirement that the diffusers be maintained occurred at different times and involved different conduct, not all of which was within the charge period. For example, the diffusers in tanks 2 and 3 (but not 4 and 5) could not be physically removed or accessed during a ski season because of the fixed media installed on top of them. Any failure to inspect, clean or replace the diffusers in tanks 2 and 3 therefore occurred before the commencement of the ski season and before the commencement of the charge period.
Thus, unlike Sydney Water Corporation, where there was an allegation of a failure to maintain the sewage treatment plant as a whole, in the breach of licence summons "the charge is pleaded as several failures to maintain individual diffusers" and is therefore bad for duplicity.
In order to determine whether or not the breach of licence summons is duplicitous, in addition to properly construing the provision creating the offence (see earlier in this judgment), it is also necessary to ascertain the correct meaning of condition O2.1(a) of the EPL.

The Proper Construction of Condition O2.1(a) of the EPL

In Bartter, Duggan J considered in detail the proper construction of condition O2.1(a) of an EPL that was identical terms to the condition the subject of the breach licence summons. I respectfully adopt her Honour's findings as to the condition's meaning (at [40]-[48]): Findings on meaning of condition O2.1(a) 40. The text of the condition should be the starting point of any construction of its meaning. Where a term is not defined it is to be given its ordinary meaning, determined by the text and context. In this case, whilst the focus is upon the word "maintained" that word cannot be properly construed without reference to the whole of the condition, importantly, the balance of the phrase in which it is found. The pairing of the term "maintained" (the action) with the objective of "a proper and efficient condition" indicates the meaning of the term used. It is intended, by the text, to be an act (maintained) that produces a state of affairs (condition). That textual indication is consistent with the term "maintained" being a reference to the preservation of the state of "proper and efficient condition". 41. The condition, when read as a whole, reinforces the appropriateness of that construction. Condition O2.1 indicates that the provision of subparagraph (a) is different to that referred to in subparagraph (b). Subparagraph (a) directs attention to the plant being maintained in a …condition; whereas sub-paragraph (b) directs attention to the plant being operated in a …manner. That distinction in terms is identifying a difference in the meaning such that subparagraph (a) is looking to the state of the plant and the plant being preserved in that state; whereas subparagraph (b) is directed at the manner in which that plant is used and whether such use is appropriate to the purpose for which it was designed. The first is an assessment of what was the state the plant at the relevant date - and the second is whether the plant was being used to achieve its design purpose in a way that was appropriate for its design purpose at the relevant date. 42. Condition O2.1 requires both maintenance and operation to be proper and efficient, however, in this case the Defendant has only been charged with respect to the condition of the plant, that is, relating to how the plant was maintained as opposed to operated. That is why it is necessary in this case to only ask whether the contravention of condition O2.1 was as a result of the plant not being maintained in a proper and efficient manner. 43. The state in which the plant is to be maintained is also to be derived from the text and context of the legislative provision. As has been observed, the reference to proper and efficient condition must be read as not being at large but rather referring to the environmental protective functions of that plant and equipment: Genkem at 41. The fact that the condition, in the context of the EPL as a whole, is intended to control or limit the capacity of the plant and equipment to cause an unacceptable environmental impact indicates that it is appropriate to constrain the meaning of those words to that object, as opposed to the efficiency being measured by some ancillary desire or function of the user - for example, in this case, the plant achieving a desired temperature range within the Premises. 44. The reference to maintaining the plant in a certain condition must also be construed consistent with that context. That is, the plant must be preserved in a state that it is able to perform the function of environmental protection that it was designed to perform. 45. Adopting similar approaches to the construction of a phrase such as "a proper and efficient condition" in similar licence conditions past authority (for which there is no reason not to adopt) has also determined a similar meaning, namely, to keep something in existence in a state which enables it to serve the purpose for which it exists: Environment Protection Authority v Water Board at 118; and Environment Protection Authority v Sydney Water Corporation at [69] ; and State Pollution Control Commission v Metropolitan Collieries Limited at p13. 46. The Defendant's observation that the POEO Act, being the statutory context for the licensing regime, is one that permits economic activity as well as protecting the environment does not alter the construction of the condition as that dual function is fundamentally still protective. That is, whilst a licence under the POEO Act regime may permit some pollution, it sets the appropriate limits of that pollution and protects the environment from unacceptable impacts that would occur if the licence conditions were not met. The protective regime of the legislation may recognise that some pollution is acceptable in some circumstances, but the primary objective of the legislative regime is the protection of the environment from unacceptable impact from pollution. Therefore, there is no statutory warrant from the legislative regime that would indicate a different meaning to be given to either the term "maintained" as meaning preserve or "proper and efficient condition" as meaning something other than the performance capacity of the plant to provide the relevantly determined environmental protection as required by the licence. 47. For those reasons, the appropriate construction of the reference to the concept of the plant being "maintained" in condition O2.1(a) is a reference to the state (its physical state) of that plant, in that the plant is in a state that permits it, at the relevant time, to perform in the manner in which it was designed for the purpose it was designed, when considered in the context of its ability to manage impacts on the environment. That is, to the extent that the design of the plant had some capacity to protect the environment in the manner envisaged by the terms of the EPL it was to be in a state that permitted an achievement of that goal. 48. In order to determine whether there has been a contravention of condition O2.1(a) it is necessary to determine what is the relevant plant and what is the purpose the plant is intended to serve to protect the environment. Upon determining that purpose the question then arises as to whether the relevant plant was not maintained in a state that enabled it to serve that design purpose.
Distilling her Honour's analysis, it is necessary to, first, identify what the relevant "plant" is. And second, identify its design purpose.
The Resort submitted that each diffuser is a separate piece of "plant" within the meaning of condition O2.1 of the EPL and that the contravention of the requirement that each diffuser be properly and efficiently maintained is a separate offence against s 64(1) of the POEOA, on the basis that each diffuser is in a different physical location within the STP, has different features, different operations, and suffers from different defects in its maintenance.
In other words, "the plant" to which the charge in the breach of licence offence relates is not the STP as a whole, or even the diffusion system as a whole, but the individual diffusers insofar as the summons particularises a failure to maintain each of the four sets of diffusers in aeration tanks 2, 3, 4, and 5. It was the failure to maintain the diffusers in those tanks that resulted in the condition of the diffusers not being able to efficiently transfer oxygen through the effluent in the tanks.
The Resort relied upon the following further particulars provided in the DSOAF in support of its submission, namely, that: 1. the function of the diffusers is to promote aerobic activity by pumping air into the effluent in the tanks to facilitate dissolved oxygen in the tanks which the bacteria in the waste water need to survive; 2. the Resort failed to maintain the diffusers installed in aeration tanks 2 to 5 of the STP so that they were not in such condition that they were able to effectively transfer oxygen through the effluent in the aeration tanks; 3. the diffusers in tanks 2 to 5 were installed in the late 1980s; 4. the Resort did not relevantly replace any of the diffusers until after the events giving rise to the alleged offences; 5. the diffusers had not been cleaned at any time since they were installed in the late 1980s; 6. in about 2002 fixed media were installed in tanks 2 and 3 so that the diffusers in those tanks could only be changed during the off season; 7. by 2016, or at the very least by 2018, the diffusers were in a state such that they could not achieve the required dissolved oxygen levels in the STP tanks; 8. on 12 July 2019 the diffusers in tanks 2, 3, and 5 (but not 4) were observed to be emitting a pattern of coarser bubbles; 9. on 16 August 2019 the Resort provided the prosecutor with an action plan providing for the installation of temporary fine bubble diffusers and droppers in tank 3; 10. by 17 September 2019 the Resort had completed the installation of the temporary fine bubble diffusers and droppers in tank 3; 11. by 20 September 2019 the installation of the temporary fine bubble diffusers and droppers in tank 3 on 17 September 2019 had resulted in the dissolved oxygen in tanks 3, 4, and 5 being well balanced; 12. the installation of the temporary fine bubble diffusers and droppers in tank 3 on 17 September 2019 eventually resulted in the STP operating within licence limits; 13. the diffusers present in tanks 2, 3, 4, and 5 during the period charged were aged and weathered with chemical deposits occluding various holes; 14. the Resort contravened condition O2.1 by failing to inspect the diffusers for wear and tear and chemical fouling, by failing to replace the diffusers regularly or indeed at all, and by failing to chemically clean the diffusers on a regular basis or indeed at all; 15. these transgressions occurred over the preceding years and had culminated in the Resort's failure to maintain the diffusers in the off season every two years; and 16. the Resort's failure to replace the diffusers or to chemically clean them during the off seasons resulted in them being aged and weathered and heavily fouled with iron salts which greatly impeded their efficiency for oxygen transfer.
The Resort submitted that, as particularised, the state or condition in which the separate diffusers were maintained is alleged to have differed insofar as: 1. on 13 July 2019 the diffusers in tanks 2, 3, and 5 (but not 4) appear to have failed such that they were emitting coarser bubbles; 2. there are no particulars indicating that the diffusers in tank 4 were not maintained to the required standard, which is consistent with the Review; and 3. on 17 September 2019 a temporary diffuser in tank 3 was installed and was functional, leading to the diffusers in tanks 3, 4, and 5 (but not tank 2) being maintained to a state in which they were able to deliver the required standard of environmental performance as demonstrated by the fact that tanks 3, 4, and 5 were balanced by 20 September 2019.
The Resort's arguments ought not be accepted for several reasons. First, as expressly particularised, the charge is that all of the diffusers collectively in tanks 2 to 5 were not maintained in a proper and efficient condition, not that the contravention of s 64(1) of the POEOA was attributable to the failure to maintain an individual diffuser in a specific tank.
Second, there is, as the prosecutor submitted, an insufficient factual basis for the submissions. The diffusers are all of the same type and were all installed at the same time (in the late 1980s). The diffusers operate in the same way and have the same function, that is, to transfer oxygen through the effluent in the tanks. The diffusers form part of an integrated aeration system whereby air is pumped from blowers through holes in the diffusers into the effluent. Critically, the diffusers cannot be operated individually. In addition, if one diffuser is not working, the whole cluster of diffusers must be removed and replaced. The diffusers in tanks 2 to 5 ought therefore be regarded as a single entity, or the relevant "plant" for the purpose of the charge. Although not determinative, this conclusion is reinforced by the Resort's Environmental Work Plans from 2017 to 2020, that did not regard the diffusers as individual items of plant.
That the diffusers in tanks 2 and 3 could not be easily removed because there was a layer of fixed media covering them thereby requiring the STP to be taken offline to change them does not matter because the plant was not maintained in such a condition that the diffusers - that is, all of them working in unison - were not able to sufficiently transfer oxygen through the effluent in the aeration tanks.
For the same reason, the fact that the failure to maintain the diffusers in aeration tanks 2 to 5 arises in different ways, or that the diffusers in tank 4 were operational, is immaterial. Again this is because, taken as a whole, the plant comprising the diffusers in the aeration tanks was not properly and efficiently maintained; whether this was due to a failure to clean, replace, or inspect the diffusers is irrelevant for present purposes.
Third, as indicated above, the design purpose of the plant was to promote dissolved oxygen in the effluent that was in the tanks so that the bacteria worked to reduce the ammonia and nitrogen in the effluent in order to release it into the environment within the limits prescribed by the EPL. The DSOAF discloses that the failure to achieve this condition occurred during the date range particularised in the summons. Thus, not only were the diffusers not in a fit state throughout the entirety of the charge period, the diffusers were, moreover, not able to achieve their design purpose during the totality of this time.
Viewed this way, the breach of licence offence may be characterised as an offence of a continuing nature. In this instance, the failure to maintain the diffusers in a proper and efficient condition as particularised in the summons was a continuous failure over the entirety of the charge period. Provided the failure endured throughout this time, which it did as alleged in the DSOAF, then the fact that the commencement of that failure was outside the charge period is not material.
The Resort appeared to further submit that the offence could not be characterised as a continuing offence because there was no duty on the Resort to ensure compliance with condition O2.1(a) of the EPL. This was because that condition did not expressly impose a personal obligation on anyone, including the Resort as the licence holder, to maintain the plant in a proper and efficient condition. This meant that, having regard to the elements contained in s 64(1) of the POEOA, an offence was committed and completed for each day that the plant was in a state rendering it unable to fulfil its design purpose.
The EPL is a statutory instrument and falls to be construed according to the ordinary principles of statutory construction (Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v MacKenzie [2019] NSWCCA 174; (2019) 238 LGERA 147 at [257]-[260]). Regard must therefore be had to the text, context and purpose of the condition (Bartter at [30]), which includes the terms of the EPL and the nature and extent of the powers pursuant to which the condition was issued.
The Resort was correct to note that the terms of condition O2.1(a) do not expressly state who must ensure that the plant is maintained in a proper and efficient condition. It is also correct to observe that the s 64(1) of the POEOA does not require identification of the entity whose responsibility it is to ensure that the condition is complied with. By contrast, there exists conditions within the EPL which expressly impose a positive obligation on the licensee to do something (for example, conditions L4.1 and L4.2, among others).
Moreover, when condition O2.1(a) is read in conjunction with condition L1.2 of the EPL, it is tolerably clear that the licensee - the Resort - has a duty to ensure compliance with condition O2.1. Condition L1.2 states: L1.2 The licensee may only discharge untreated or partially treated sewage from the sewage treatment plant and/or the reticulation system subject to the conditions of this licence, including O1 and O2.
Such a construction is harmonious with the objectives of the EPL to require the proper and efficient management of the STP to minimise harm to the environment and public health (see, especially, conditions A1.2(b) and A1.3). The STP is managed by the licensee, who is the only person authorised to discharge the sewage from it. Compliance with condition O2.1(a) therefore rests with the Resort as licensee to control the discharges of sewage from the STP in order to achieve the aim of minimising harm to the environment and public health in conformity with the EPL.
Compliance with condition O2.1(a) by the Resort, as the licensee, is also necessary to ensure that the objectives of the POEOA are met (see ss 43(d), 55 and 63 of that Act).
Therefore, contrary to the contention of the Resort, a duty is imposed upon it as the holder of the EPL to maintain all plant and equipment installed at the premises or used in connection with the licenced activity in a proper and efficient condition (condition O2.1(a)). This duty continued throughout the charge period. The failure by the Resort to ensure compliance with it during this time resulted in a continuous contravention of condition O2.1(a) of the EPL and a correlative continuous contravention of s 64(1) of the POEOA.
To the extent that the Resort suggested that there was confusion as to the identity of the "person" alleged to have contravened condition O2.1 of the EPL (the submission was not clear), the breach of licence summons expressly states in the "Manner of breach", that it was the Resort that failed to maintain the plant referred to therein in a proper and efficient condition.
For these reasons, the breach of licence summons is not bad for duplicity.

The Breach of Licence Offence is Known to Law and is Not Statue Barred

Further and in the alternative, relying on the passages quoted above from Bartter, the Resort contended that the breach of licence summons was defective because the allegation in that charge that it had failed to properly and efficiently maintain the diffusers was not the act that constituted the offence. As discussed above, in the context of the alleged breach of condition O2.1(a), the holder of the EPL commits an offence at the moment that a person fails to maintain the plant in a proper and efficient condition. In the present case, the Resort has been charged with a failure to separately maintain each of the four diffusers in tanks 2, 3, 4, and 5 resulting in a condition (or state of affairs: see Bartter at [40]) whereby each of the diffusers were not able to efficiently transfer oxygen through the effluent in the aeration tanks. However, because of the poorly maintained state of the diffusers, a state that was in existence before the commencement of the charge period, this condition was extant prior to the charge period commencing. It follows that the Resort has engaged in no offending act during the charge period because the offence had already been committed.
In the result, the Resort submitted that the breach of licence offence as pleaded was either not an offence known to law (relying upon Walsh at 89 and 91 per Gaudron and Gummow JJ and Attorney General (NSW) v Built NSW Pty Ltd [2013] NSWCCA 299; (2013) 239 IR 102), or was time barred by s 216(1)(b) of the POEOA.
There are several reasons why this contention should be rejected. First, the Court's reasoning in Bartter does not assist the Resort. As explained above, as particularised, condition O2.1(a) of the EPL requires that all of the diffusers in tanks 2 to 5 ("the plant") be in a condition that permitted them during the charge period to efficiently transfer oxygen through to the effluent in the aeration tanks. As alleged, the diffusers were not maintained in a state that enabled them to fulfil this purpose during the entirety of the charge period. While the defective state of the diffusers was in existence before the commencement of the charge period, the inability of the diffusers to achieve their design function of delivering sufficient dissolved oxygen into the tanks arose wholly within the charge period. This is sufficient for the offence to be known to law. That this condition or state of affairs pre-existed the commencement of the charge period does not matter provided that it continued uninterrupted into, and throughout, the charge period, which it did.
Second, again as discussed above, not only were the diffusers not in a fit state throughout the entirety of the charge period, they were also not able to achieve their design purpose of properly transferring oxygen through to the effluent in the tanks. Whilst ever this condition or state of affairs endured, the holder of the EPL was in breach of condition O2.1(a) and in contravention of s 64(1) of the POEOA. The offence was therefore one known to law.
The facts in the present case may be contrasted with the circumstances in Walsh, where there were multiple occasions of offending resulting from obtaining multiple but discrete payments and benefits by dishonest means. It was held that once a payment or benefit was obtained by dishonest means, the offence was complete. The rolling up of the separate commission of individual offences into a single offence spanning multiple days was to convict the appellant of an offence not known to law. For the reasons given above, that case is distinguishable.
The facts can also be distinguished from those in Built, where the summons pleaded elements of a different offence that could have no application to the persons charged, and therefore, was not an offence known to law. No such assertion arises here.
Applying similar reasoning, the offence as charged is also not statute barred in the manner contended for by the Resort.
Section 216(1)(b) of the POEOA requires a prosecution for an offence under s 64 to be commenced "within but not later than 12 months" after the date upon which the offence has alleged to have been committed: 216 Time within which summary proceedings may be commenced (1) Proceedings for an offence under this Act or the regulations may be commenced - … (b) in any other case - within but not later than 12 months after that date.
The summons was filed on 7 July 2020 and the charge period stated therein is from 9 July 2019 to 18 September 2019. As stated above, as particularised, condition O2.1(a) of the EPL required the Resort to keep the diffusers in a state that permitted them to efficiently transfer oxygen to the effluent at all times, including during the charge period. That the diffusers were not in this condition prior to the charge period commencing does not matter so long as they continued in this state during the relevant period, which they did. The summons is not defective merely because the contravention started at an earlier point in time to that particularised in the summons.
Accordingly, the breach of licence offence is not time barred.

Costs

As was discussed and determined in Truegain (at [75]-[99] per Leeming JA) the costs of these motions must be reserved for determination at the conclusion of the proceedings.

Orders

The prosecution requested that in the event that the Court found against it in relation to the Resort's notices of motion, the Court refrain from making formal orders to enable the prosecution to review the judgment and consider whether it would request the Court to submit a question of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination pursuant to s 5AE of the Criminal Appeal Act 1912. In the result, this request is relevant to the Court's findings in respect of the pollute waters summons.
The orders of the Court are therefore as follows:

Proceedings 200271/2020 (1) the notice of motion is dismissed save for the determination of the relief sought in order 4b (leave to withdraw plea of guilty); (2) costs of the notice of motion filed on 27 November 2020 is reserved; (3) the exhibits are to be returned; and

Proceedings 200270 and 200271/2020 (4) the matters are to be listed for directions before Pepper J within 14 days of the publication of this judgment.

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. Decision last updated: 23 April 2021

(2019) 238 LGERA 147

(2006) 149 LGERA 415

Environment Protection Authority v Charlotte Pass Snow Resort Pty Ltd

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