Environment Protection Authority v Charlotte Pass Snow Resort Pty Ltd

Environment Protection Authority v Queanbeyan (2012) 192 LGERA 412; [2012] NSWLEC 220 Environment Protection Authority v Sydney Water Corporation [2015] NSWLEC 80 Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 17 Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 [2006]; NSWLEC 242 Harris v Harrison (2014) 86 NSWLR 422; [2014] NSWCCA 84 Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15 Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Martin v R; R v Martin [2021] NSWCCA 316 Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 Owens v R [2017] NSWCCA 16 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 R v AB (2011) 59 MVR 356; [2011] NSWCCA 229 R v Dodd (1991) 57 A Crim R 349 R v Nichols (1991) 57 A Crim R 391 R v Oliver (1980) 7 A Crim R 174 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Visconti [1982] 2 NSWLR 104 Secretary, Department of Planning and the Environment v Sell & Parker Pty Ltd [2022] NSWLEC 60 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Walden v Hensler (1987) 163 CLR 561; [1987] HCA 54 Water NSW v Barlow (2019) 244 LGERA 1; [2019] NSWLEC 30 Category: Sentence Parties: Environment Protection Authority (Prosecutor) Charlotte Pass Snow Resort Pty Ltd (Defendant) Representation: Counsel: A Rose (Prosecutor) C Ireland (Defendant)

Solicitors: NSW Environment Protection Authority (Prosecutor) Norton White (Defendant) File Number(s): 2020/200270 2022/200271 Publication restriction: Nil

Charlotte Pass Pleads Guilty to One Pollution Offence and One Breach of Licence Offence

1. Charlotte Pass Snow Resort Pty Ltd ("Charlotte Pass") has pleaded guilty to one offence against s 64(1) and one offence against s 120 of the Protection of the Environment Operations Act 1997 ("the POEOA") committed at or near the Charlotte Pass Village sewerage treatment plant, Charlotte Pass Village, Perisher Valley NSW ("the STP"). Charlotte Pass has been charged as follows: 1. one count of polluting waters with partially treated sewage effluent containing elevated levels of ammonia and total nitrogen between 9 July and 24 September 2019 (matter 2020/200270) ("the pollution offence"); and 2. one count of contravening condition O2.1 of its Environment Protection Licence No 1591 ("the EPL") by failing to maintain the diffusers installed in aeration tanks 2 to 5 of the STP in a proper and efficient condition between 9 July and 18 September 2019 (matter 2020/200271) ("the licence offence").
2. The summons for the pollution offence charged as follows: 1. An order that the Defendant, Charlotte Pass Snow Resort Pty Ltd, whose registered office is at Kosciuszko Road, Kosciusko 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 s 120(1) of the Protection of the Environment Operations Act 1997 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.
3. The summons for the licence offence was in the following terms: 1. An order that the defendant, Charlotte Pass Snow Resort Pty Ltd, whose registered office is at Kosciuszko Road, Kosciusko 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 s 64(1) of the Protection of the Environment Operations Act 1997 in that it was the holder of a licence, a condition of which was contravened by a person. Particulars a. Licence Environment 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 Legislative Regime Creating the Offences

1. Section 120(1) of the POEOA creates an offence of polluting waters: 120 Prohibition of pollution of waters (1) A person who pollutes any waters is guilty of an offence.
2. The terms "pollution of waters" and "waters" are defined in the Dictionary of the POEOA as: 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. 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.

Charlotte Pass Operates a Snow Resort

1. The basal facts that follow were agreed to by the parties.
2. Charlotte Pass is a company incorporated in NSW. It changed its name from Charlotte Pass Village Pty Ltd to its current name in about March 2018.
3. Charlotte Pass is the lessee of a parcel of land in Perisher Valley, pursuant to a lease that commenced on 1 May 2018 with the National Parks and Wildlife Service ("NPWS").
4. Relevantly, during 2019 Charlotte Pass operated the Charlotte Pass Snow Resort which includes accommodation ("the resort") and the STP. The resort and the STP are located within the Kosciuszko National Park in Perisher Valley in the Snowy Mountains of NSW.
5. The road to the resort is snow bound in winter requiring over-snow transport from the township of Perisher Valley. Charlotte Pass has a license to operate such transport. It is the only way that staff, visitors, freight and waste can move in and out of the resort during the winter season.
6. The winter season runs for about 16 to 17 weeks from the June long weekend to the October long weekend each year.

The STP

1. The STP accepts wastewater from the resort throughout the year and is designed to treat sewage from an estimated population of 1,117 people. It is located approximately 300-400 m from the main resort area, as depicted below:
2. Treated water is discharged from the STP into an unnamed tributary ("the tributary") which flows into Spencers Creek and then into the upper Snowy River. The headwaters of the Snowy River begin upstream of the resort and the tributary joins Spencers Creek approximately 400 m downstream of the village.
3. The STP operates all year round, but for it to be at optimal performance in winter (when the resort has a much higher occupancy), a ramp-up or feed procedure is instigated approximately six weeks prior to the start of the ski season in late April or early May to establish the biomass. Charlotte Pass does not discharge high volumes over the summer period due to low visitation outside of the peak winter season.
4. For the ramp-up procedure in 2019, Charlotte Pass used donor activated sludge (existing biomass) sourced from the nearby sewage treatment plant at Jindabyne.
5. The original STP was installed in the mid to late 1980s. The STP is known as a continuous aeration system, however, it was later upgraded to a Biological Batch Reactor ("BBR") treatment plant based upon extended aeration activated sludge technology. The STP is designed to operate automatically under the control of a Programmable Logic Control ("PLC").
6. The main bioreactor consists of five interconnected tanks arranged in a series, as shown below:
7. As depicted above, the raw sewage is macerated and pumped from the main pump station near the village into tank 1 (the biosorption tank). The sewage then passes sequentially through tanks 2, 3, 4 and 5 for aeration purposes. Tanks 1 and 2 are housed inside an insulated shed. Tanks 3 to 5 located are outside. Treatment of the effluent through the STP requires the aeration to cycle on and off to provide a settlement period which assists in the treatment of components of nitrogen in the effluent. The treated sewage then passes into a lagoon, where it is pumped (automatically or manually) by a set of filter feed pumps through sand filters and a UV sterilizer, to a digital flow meter which records the outflow amounts, and then through a pipe with a discharge point from which Charlotte Pass can take samples to monitor the quality of the treated sewage. This discharge point is referred to as the "Sampling Point" in Condition P1.2 and as "Point 2" in conditions L2, L3 and M2 of the EPL.

The EPL

1. On 24 November 2000 the Environment Protection Authority ("the EPA") issued Charlotte Pass with the EPL pursuant to s 55 of the POEOA. The EPL authorises Charlotte Pass to carry out sewage treatment processing by small plants (of a scale of 20-100 ML annual maximum volume of discharge) at the STP.
2. 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 at the time of the offending conduct was dated 17 September 2018 ("the 2018 EPL"). This version of the EPL references Charlotte Pass's former name.
3. The 2018 EPL contained the following relevant conditions:
4. Accordingly, Charlotte Pass was required to take a total of 17 samples from the Sampling Point/Point 2 during the relevant reporting period, that is, 1 March 2019 to 29 February 2020 ("the reporting period").
5. In 100% of the samples taken during the reporting period, the concentration of ammonia was not permitted to exceed 5 mg/L and the concentration of total nitrogen was not permitted to exceed 15 mg/L.
6. Australian Laboratory Services conducts regular testing of samples collected by Charlotte Pass to ensure that the STP is discharging within its licence parameters. During the period November to May testing is conducted monthly. From June to October testing is conducted fortnightly.

The Commission of the Pollution and Licence Offences

1. On 4 July 2019 Charlotte Pass became aware that elevated nitrogen and ammonia concentrations were being carried through the STP through daily operational procedures and effluent quality testing.
2. On 5 July 2019 Charlotte Pass notified the EPA that the ammonia levels at the STP were above normal levels but that they were not currently discharging effluent from the STP. Charlotte Pass also contacted the NPWS, who agreed to send Rob Naisby, a process engineer, to attend the STP to assist Charlotte Pass to address the ammonia levels the following morning.
3. Charlotte Pass 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.
4. In an effort to bring the ammonia levels down, Charlotte Pass increased the aeration in the tanks to 100%, which decreased the settlement time (this aids in the reduction of nitrates, a component of nitrogen).
5. From 7 to 10 July 2019, Charlotte Pass engaged Southeast Water Waste Recovery to remove raw effluent from the pump well and transport it by truck from the STP to the Perisher Valley sewage treatment plant for treatment and to increase the capacity at the STP. This ceased on 10 July 2019 as the contractor was concerned with deteriorating weather conditions.
6. Charlotte Pass also engaged the services of Simmonds & Bristow ("S&B") for engineering support. An engineering representative from S&B, Jason Keane, arrived at the resort on 11 July 2020. He remained onsite until 23 July 2020.
7. On 8 July 2019 EPA officers inspected the STP.
8. On 9 July 2019 Charlotte Pass discharged 12,087 L of effluent from the STP into the tributary by a pipe at the Discharge Point into Spencers Creek/Point 1. This is the start of the charge period for both the licence offence and the pollution offence.
9. During the charge period, Charlotte Pass's staff recorded readings from the STP's digital flow meter at various times of the day by hand onto daily log sheets. They also recorded when the discharge process was stopped.
10. Charlotte Pass continued to discharge effluent from the STP into the tributary by a pipe at the discharge point into Spencers Creek/Point 1 between 10 July to 24 September 2019. The amounts of effluent discharged varied from 3,298 L (on 17 August 2019) to 232,016 L (on 22 September 2022). The total volume of effluent discharged from the STP between 9 July 2019 and 24 September 2019 was 11,645,632 L or 11.65 ML.

The Testing of the Effluent

1. As part of Charlotte Pass's quality assurance testing, it conducted daily onsite measurements of the concentration of ammonia in samples of the effluent taken from the sampling point, referred to as Point 2 in its EPL. It did this between 9 July and 5 October 2019. The results of this testing and the total volume of effluent discharged each day are summarised in the tables below. July August NH-3 in mg/L Discharge Litres NH-3 in mg/L Discharge Litres 9/07/2019 5.90 12087.00 1/08/2019 20.20 68306.00 10/07/2019 6.40 58000.00 2/08/2019 20.60 165000.00 11/07/2019 4.80 52000.00 3/08/2019 21.80 78976.00 12/07/2019 3.75 217627.00 4/08/2019 16.80 175150.00 13/07/2019 3.10 234303.00 5/08/2019 19.40 135923.00 14/07/2019 9.00 159000.00 6/08/2019 16.60 133044.00 15/07/2019 9.00 159106.00 7/08/2019 17.60 135824.00 16/07/2019 13.60 37180.00 8/08/2019 21.80 148211.00 17/07/2019 18.10 218001.00 9/08/2019 24.80 168118.00 18/07/2019 21.00 152008.00 10/08/2019 25.20 176162.00 19/07/2019 19.00 124111.00 11/08/2019 24.80 71667.00 20/07/2019 18.50 210375.00 12/08/2019 27.80 212563.00 21/07/2019 24.50 61393.00 13/08/2019 27.00 111812.00 22/07/2019 166306.00 14/08/2019 27.50 130682.00 23/07/2019 19.00 102153.00 15/08/2019 26.20 86826.00 24/07/2019 18.00 90118.00 16/08/2019 28.20 153169.00 25/07/2019 24.20 225017.00 17/08/2019 29.40 3298.00 26/07/2019 21.00 96766.00 18/08/2019 29.60 205300.00 27/07/2019 26.40 915710.00 19/08/2019 22.10 112106.00 28/07/2019 25.10 220828.00 20/08/2019 25.20 136431.00 29/07/2019 19.10 90739.00 21/08/2019 22.40 108596.00 30/07/2019 23.80 6161.00 22/08/2019 25.40 180490.00 31/07/2019 20.00 105768.00 23/08/2019 28.20 162415.00 24/08/2019 30.00 1598800.00 25/08/2019 30.40 121982.00 26/08/2019 22.50 120872.00 27/08/2019 30.20 170036.00 28/08/2019 28.40 46638.00 29/08/2019 28.20 61139.00 30/08/2019 28.60 110129.00 31/08/2019 27.80 47098.00

September October NH-3 in mg/L Discharge Litres NH-3 in mg/L Discharge Litres 1/09/2019 28.00 45231.00 1/10/2019 3.40 217286.00 2/09/2019 30.10 48370.00 2/10/2019 2.20 161860.00 3/09/2019 27.60 10907.00 3/10/2019 2.05 138923.00 4/09/2019 39020.00 4/10/2019 2.10 111427.00 5/09/2019 24.20 103116.00 5/10/2019 1.25 135239.00 6/09/2019 20.60 165546.00 7/09/2019 20.20 114948.00 8/09/2019 19.00 163252.00 9/09/2019 13.20 169119.00 10/09/2019 16.50 172710.00 11/09/2019 18.40 167276.00 12/09/2019 17.80 209073.00 13/09/2019 18.40 187902.00 14/09/2019 17.20 170196.00 15/09/2019 17.60 101343.00 16/09/2019 16.20 178300.00 17/09/2019 16.20 229800.00 18/09/2019 14.90 182516.00 19/09/2019 15.00 134226.00 20/09/2019 13.80 34823.00 21/09/2019 13.10 225316.00 22/09/2019 8.20 232016.00 23/09/2019 7.10 221697.00 24/09/2019 7.20 111549.00 25/09/2019 5.10 140588.00 26/09/2019 6.30 112408.00 27/09/2019 5.95 163437.00 28/09/2019 5.30 182861.00 29/09/2019 5.00 101770.00 30/09/2019 4.65 212863.00

1. Charlotte Pass did not conduct any internal testing on the concentration of total nitrogen in the effluent.
2. The results of Charlotte Pass's internal testing indicated that: 1. the concentration of ammonia in the effluent that was discharged from the STP on 9 and 10 July 2019, and between 14 July and 28 September 2019, exceeded the 5 mg/L limit set out in condition L2.4 of the EPL; 2. the concentration of ammonia in the effluent that was discharged from the STP between 11 and 13 July 2019, exceeded the 2 mg/L limit (but was below the 5 mg/L limit) set out in condition L2.4 of the EPL; and 3. the concentration of ammonia in the effluent that was discharged from the STP did not fall below 2 mg/L until 5 October 2019.
3. The results of the external testing on the samples of effluent that both the EPA and Charlotte Pass sent on various dates to NATA accredited laboratories indicated that: 1. the concentration of ammonia in the effluent that was discharged from the STP on 10, 16, 18, 23 and 24 July, 1, 5 and 21 August, 2, 18 and 24 September 2019 exceeded the 100 percentile limit set out in condition L2.4 of the EPL; 2. the concentration of total nitrogen in the effluent that was discharged from the STP on 10, 16, 18, 23 and 24 July, 1, 5 and 21 August, 2, 18 and 24 September 2019 exceeded the 100 percentile limit set out in condition L2.4 of the EPL; 3. the concentration of total nitrogen in the effluent that was discharged from the STP on 16 July, 18 September and 24 September 2019 exceeded the 90 percentile limit (but was below the 100 percentile limit) set out in condition L2.4 of the EPL; and 4. the concentration of total nitrogen in the effluent was below the 90 percentile limit set out in condition L2.4 when it was next tested on 11 December 2019.

Dissolved Oxygen

1. The O&M Manual that Charlotte Pass's operations staff were relying on during the commission of the offences stated that: Bacteria, of the type in the BBR liquor at Charlotte Pass Village, require oxygen to survive. The submerged diffusers in the BBR tank and blowers in the plant room supply this oxygen to the bacteria. If the aeration system should fail and remain off for more than six [6] hrs. the bacteria in the tank will begin to die in large numbers... The BBR tank should operate at a D.O. of 0.5-2mg/L in Tanks 2-5. Levels below this indicate severe overloading of the plant or chemicals using oxygen. Levels above 2mg/L indicate that toxins may be killing the bacteria or that the plant is under loaded. If the D.O. drops below 0.5mg/L (this can be an indication of organic overload or a high COD caused by contamination by organic substances like beer milk or juice) for longer than [24 hours]... DO probe calibration is done automatically and manual tests of both DO and DO uptake are done daily. High dissolved oxygen can cause pinfloc in underloaded situation and hence degrade the effluent quality. Aeration tank DO concentrations vary from tank to tank and this will be a function of the load and aeration mode. When the mode matches the load (during periods of heavy load) the DO after 10mins of any cycle should be; Tank 1 = 0 Tank 2 = 0 to 0.5 Tank 3 = 0.5 to 1 Tank 4 = 1 to 1.5 Tank 5 = 1.5 to 2"
2. However, because the STP was in a cold climate, the dissolved oxygen ("the DO") concentrations in the tanks generally needed to be closer to 4 mg/L to achieve efficient ammonia removal.
3. The O&M Manual also set out the daily testing requirements, which included recording the DO uptake and the DO levels (twice per day and time taken). The O&M Manual stated that the DO uptake was measured by placing a DO probe in a sample of the effluent which "will indicate the biological activity of the sample". It also stated that the PLC would record the DO levels six times a day in the PLC data log.
4. Charlotte Pass measured the DO levels in the tanks at various times during the commission of the offences and recorded the levels by hand in daily log sheets. This testing was not, however, undertaken every day.
5. A graphical representation of the DO testing is below:
6. The O&M Manual also set out the chemical dosing systems for the STP including ferric chloride and lime. Iron is added to the sewage for removal of phosphorus. Lime, comprising apatite and gypsum, is added for alkalinity control to increase nitrification and phosphorus removal.

The Testing of the Water in the Tributary and Spencers Creek

1. The results of the water quality testing that the NATA accredited laboratories conducted on the samples of the water that both the EPA and Charlotte Pass collected at various stages during the commission of the offences from upstream and downstream of the STP are summarised in the following table. Sample date Sample taken by Tributary Spencers Creek Upstream of STP Downstream of STP Upstream of STP Downstream of STP 10/07/19 EPA Ammonia (mg/L N) <0.1 <0.1 - <0.1 (3kms) 16/07/19 EPA Total nitrogen mg/L N 0.09 0.85 - 0.14 (3kms) Ammonia (mg/L N) <0.1 2.94 <0.01 <0.01 (3kms) Total nitrogen mg/L N <0.1 5.8 <0.1 <0.1 (3kms) 18/7/19 CPSR Ammonia (mg/L N) - - <0.1 <0.1 (500M) Total nitrogen mg/L N - - 0.10 0.17 (500m) 23/7/19 EPA Ammonia (mg/L N) 0.02 13.2 <0.01 0.70 (500m) Total nitrogen mg/L N <0.1 13.2 <0.1 0.1 (500m) 24/7/19 CPSR Ammonia (mg/L N) - - <0.1 1.1 (500m) Total nitrogen mg/L N - - 0.11 <0.94 (500m) 01/08/19 CPSR Ammonia (mg/L N) - - 0.2 <0.1 (500) Total nitrogen mg/L N - - 0.56 0.06 (500m) 05/08/19 EPA Ammonia (mg/L N) <0.1 10.4 <0.1 0.5 (500m) 0.3 (750m) Total nitrogen mg/L N 0.14 12.7 0.09 0.84 (500m) 0.46 (750m) 21/08/19 CPSR Ammonia (mg/L N) - - - - Total nitrogen mg/L N - - - - 02/09/19 EPA Ammonia (mg/L N) <0.1 1,9 <0.1 0.8 (500m) Total nitrogen mg/L N 0.15 2.29 0.23 1.06 (500m) 18/09/19 CPSR Ammonia (mg/L N) - - <0.1 <0.1 (500m) Total nitrogen mg/L N - - 0.08 .31 (500m) 24/09/19 EPA Ammonia (mg/L N) <0.1 0.02 <0.1 <0.1 (500m) Total nitrogen mg/L N 0.10 1.33 0.09 0.23

1. Charlotte Pass collected additional water samples from the tributary and Spencers Creek between 12 and 28 July 2019, which it tested for the concentration of ammonia onsite.
2. The results of this internal and external testing can be compared to default guideline values provided in the Australian and New Zealand Guidelines of Fresh and Marine Water Quality 2018 ("ANZG 2018"). These guideline values provide an indication of chemical concentrations below which effects on aquatic organisms are unlikely to occur. Exceedance of a guideline value does not necessarily mean a biological or ecological effect will occur, but it does indicate that the likelihood of such an effect is increased and that further investigation is warranted.
3. The default water quality guideline value for ammonia is 0.013 mg/L. The default water quality guideline value for NOx is 0.015 mg/L, and the default water quality guideline value for total nitrogen (which is the combined concentration of all forms of nitrogen, including ammonia, NOx and organic forms) is 0.25 mg/L.
4. When either the concentration of ammonia is more than 0.026 mg/L or the concentration of total nitrogen is more than 0.2 mg/L, the water quality is considered poor as each concentration is more than twice the ANZG 2018 trigger level.
5. Since ammonia can also be toxic to aquatic organisms, comparisons can be made against the default water quality guideline values for ammonia as a toxicant.
6. The default guideline value for ammonia as a toxicant for systems with high conservation value, such as the Kosciuszko National Park, is 0.32 mg/L. However, when this is adjusted for the pH of the water in the tributary and Spencers Creek during the charge period, the guideline value for ammonia is 0.862 mg/L.
7. Nitrate and nitrite can also be toxic to aquatic organisms. There is currently no default guideline value for nitrite. However, the parties agreed that the default water quality guideline value for nitrate in high conservation areas, such as Kosciuszko National Park, is 1 mg/L.
8. The results of the internal and external testing indicated that: 1. the concentration of total nitrogen in the water samples that the EPA took from the tributary downstream of the STP on 10 July 2019 were nine times greater downstream of the STP than upstream of the STP, and the water quality was poor; 2. the concentrations of ammonia in the water samples that Charlotte Pass took 2 m and 20 m downstream of the STP on 12 July 2019 exceeded the guideline value for ammonia as a toxicant (when adjusted for the pH of the water) by up to two times, and the water quality was poor; 3. the concentration of ammonia in the water samples that the EPA took from the tributary downstream of the STP on 16 July 2019 exceeded the default water quality guideline for ammonia as a toxicant (when adjusted for the pH of the water) by more than three times. It also showed that the concentration of total nitrogen exceeded the default water quality guideline value by more than 20 times, and the water quality was poor; 4. the concentration of total nitrogen in the water samples that Charlotte Pass took from the tributary on 18 July 2019 was 1.7 times greater downstream of the STP than upstream; 5. the concentrations of ammonia in the samples that Charlotte Pass collected between 18 to 28 July 2019 250 m downstream of the STP were significantly elevated, the highest concentration being 7.4 mg/L, which exceeded the default water quality guidelines value for ammonia as a toxicant (when adjusted for the pH of the water) by almost nine times and for ammonia as a nutrient by more than 500 times. Ammonia was also detected up to 500 m downstream from the STP, with concentrations up to 64 times higher than upstream of the STP and exceeding the default guideline value for ammonia as a nutrient; 6. the water quality on 12, 18 to 21 and 27 to 28 July 2019 was poor; 7. the concentrations of ammonia in the water samples that the EPA took from the tributary downstream of the STP on 23 July 2019 was more than 600 times greater than the concentration of ammonia upstream of the STP and more than 15 times the default water quality guideline for ammonia as a toxicant (when adjusted for the pH of the water). The ammonia concentration in Spencers Creek 500 m downstream of the STP was also elevated relative to the upstream location in Spencers Creek, and the water quality was poor; 8. the concentration of total nitrogen in the water samples that Charlotte Pass took from the tributary on 24 July 2019 was eight times greater downstream of the STP than upstream, and ammonia, NOx (as nutrients) and total nitrogen concentrations all exceeded water quality guideline values downstream of the STP, and the water quality was poor; 9. the concentration of ammonia, NOx (as nutrients) and total nitrogen in the water samples that Charlotte Pass took from the tributary on 1 August 2019 exceeded water quality guideline values downstream of the STP, and the water quality was poor; 10. the concentrations of ammonia and total nitrogen in the water samples that the EPA took from the tributary and Spencers Creek, downstream of the STP on 5 August 2019 were still significantly elevated, being similar to the results from the testing on 23 July 2019, and the water quality was poor; 11. the concentrations of ammonia and total nitrogen in the water samples that the EPA took from the tributary downstream of the STP on 2 September 2019 were still elevated 10 times above the upstream concentrations and the concentrations of ammonia and total nitrogen in the water samples taken from Spencers Creek were elevated downstream of the STP compared to upstream, and the water quality was poor; 12. the concentration of NOx and total nitrogen in the water samples that Charlotte Pass took from the tributary on 18 September 2019 exceeded the water quality guideline values downstream of the STP, and the water quality was poor; and 13. the concentrations of ammonia, NOx and total nitrogen in the water samples that the EPA took from the tributary downstream of the STP on 24 September 2019 still exceeded the ammonia, NOx (as nutrients) and total nitrogen guideline levels, and the water quality was poor.

The EPA's Investigation

1. On 15 October 2019 the EPA issued Charlotte Pass with a s 193 Notice to Provide Information and Records ("the notice").
2. On 29 October 2019 Charlotte Pass responded to the notice.
3. EPA officers conducted an interview with Maclean on 4 November 2019. EPA officers also conducted an interview with Berkery on 4 and 5 November 2019.
4. On 5 November 2019 EPA officers conducted an interview with Andrew Dunkerley, who was the Blyton Group's Operations Manager, and Charlotte Pass's Corporate Representative.
5. In April 2020 the EPA requested that Charlotte Pass arrange for samples of the diffusers that Charlotte Pass had removed from tanks 2, 3, 4 and 5 to be packaged and sent to the Department of Planning and Environment's ("the Department") laboratory. The remaining diffusers were destroyed. The Department transferred the samples to Microanalysis Australia in Perth.
6. Microanalysis Australia is a NATA accredited laboratory, for scanning electron microscopy with elemental analysis by energy dispersive spectroscopy. Microanalysis Australia sent the results of their analysis of the diffusers to Anil Gautam, Senior Scientist, Environmental Forensics, Science Division, at the Department.
7. Gautam collated the reports into a final report and provided it to the EPA on 3 June 2020.

Charlotte Pass's Actions After the Commission of the Offences

1. On 27 September 2019 S&B provided Charlotte Pass with a proposal for the summer upgrade program to the STP.
2. On 24 October 2019 Charlotte Pass made amendments to its Pollution Incident Response Management Plan for the STP.
3. On 1 November 2019 Charlotte Pass provided the EPA with S&B's STP Engineering Review and Upgrade: Recommendation Report, dated October 2019 ("the Recommendation Report").
4. On 6 December 2019 Charlotte Pass agreed to carry out the high priority and other relevant works outlined in the Recommendation Report. The normal summer maintenance program was interrupted by the Black Summer Bushfires that occurred from December 2019 to January 2020. This meant that S&B had to delay the commencement of its works on the STP to early March 2020.
5. On 10 February 2020 the EPA varied the EPL to incorporate a Pollution Reduction Program to capture Charlotte Pass's imminent upgrades to the STP.
6. Between February and April 2020, and in advance of the 2020 ski season, Charlotte Pass undertook upgrade works at the STP. Tanks 2 to 5 were drained and the diffusers were removed and replaced, along with the droppers.
7. On 3 April 2020 the EPA further varied the EPL, extending Charlotte Pass's reporting deadlines due to travel restrictions and other contractor limitations relating to COVID-19.
8. On 10 June 2020 Charlotte Pass provided the EPA with a report prepared by S&B dated May 2020 detailing the completion and commissioning of the STP upgrades ("the upgrade report").
9. The upgrade report confirmed, relevantly, that Charlotte Pass had installed new locally acquired diffusers and droppers in the aeration tanks and replaced the header pipe. The fixed media had also been removed from the aeration tanks to allow the diffusers to be lifted to the surface without draining the tanks.
10. Charlotte Pass also upgraded its O&M Manual in June 2020 and again in December 2020.
11. Charlotte Pass completed installation of a new aeration system in the lagoon on 8 April 2022, which provides back up aeration for tanks 2 to 5.

The Evidence Relied Upon by the Parties

1. The EPA relied upon tendered documentary evidence, including the expert report of Dr Brace Boyden dated 23 June 2020 ("the Boyden report").
2. Charlotte Pass, in addition to a number of exhibits and the expert report of Dr Daniel Martens dated 5 April 2022 ("the Martens report"), read the following affidavits: 1. Maclean, sworn on 25 November 2020 ("the Maclean affidavit"); and 2. Lucy Blyton, General Manager - Projects and Implementation for the Blyton Group of companies who operate the resort owned by Charlotte Pass, affirmed on 1 July 2022 ("the Blyton affidavit").
3. Drs Boyden and Martens were required for cross-examination and gave concurrent expert evidence.

The Purposes of Sentencing

1. The purposes of sentencing are sets out in s 3A of the Crimes (Sentencing Procedure) Act 1999 ("CSPA") as follows: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.

Statutory Matters Required to be Taken into Account in Sentencing

1. Subsections 21A (2) and (3) of the CSPA set out the relevant aggravating and mitigating factors that the Court must consider: 21A Aggravating, mitigating and other factors in sentencing … (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows- … (g) the injury, emotional harm, loss or damage caused by the offence was substantial, … The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows- … (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), … (k) a plea of guilty by the offender (as provided by section 22), … (m) assistance by the offender to law enforcement authorities (as provided by section 23)…
2. For offences created by the POEOA, the Court is also required to consider the relevant matters set out in s 241(1) of that Act: 241 Matters to be considered in imposing penalty (1) In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant) - (a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence, (b) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence, (d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence…
3. The appropriate sentence for Charlotte Pass is to be determined by an instinctive synthesis of all of the relevant objective and subjective circumstances (Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25).

Objective Seriousness of the Offences

1. The objective gravity of the offences fixes both the upper and lower limits of the proportionate punishment. It fixes the upper limit insofar as the sentence must not exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances (Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 and Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 at 354). It fixes the lower limit because allowance for the subjective factors of the case ought not produce a sentence which fails to reflect the objective gravity or seriousness of the offence (R v Dodd (1991) 57 A Crim R 349 at 354 and R v Nichols (1991) 57 A Crim R 391 at 395).
2. The objective gravity of an offence is to be judged by two principal components, the precise acts or omissions of the offender and the consequences of those acts or omissions (Environment Protection Authority v Baiada Poultry Pty Ltd (2008) 163 LGERA 71; [2008] NSWLEC 280 at [22]).

Nature of the Offences

1. The nature and purpose of the statutory provision that has been contravened, and its place in the statutory scheme, are relevant to the determination of the objective seriousness of the commission of an environmental offence (Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34 at [168]-[172]).
2. The relevant objects contained in s 3 of the POEOA identify the purpose of creating the offences with which Charlotte Pass has been charged: 3 Objects of Act The objects of this Act are as follows - (a) to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development, … (d) to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following - (i) pollution prevention and cleaner production, (ii) the reduction to harmless levels of the discharge of substances likely to cause harm to the environment, (iia) the elimination of harmful wastes, (iii) the reduction in the use of materials and the re-use, recovery or recycling of materials, (iv) the making of progressive environmental improvements, including the reduction of pollution at source, (v) the monitoring and reporting of environmental quality on a regular basis, (e) to rationalise, simplify and strengthen the regulatory framework for environment protection, (f) to improve the efficiency of administration of the environment protection legislation, …
3. These objects reinforce the protective nature of the statutory framework and the essential role that the regulation of pollution, notably through the promulgation of a licensing regime, plays in achieving those objects (Environment Protection Authority v Bartter Enterprises Pty Ltd (No 4) [2021] NSWLEC 45 at [49]-[51]).
4. There is a need for strict compliance with the conditions imposed by an EPL. The EPL is the statutory instrument that authorises pollution. It is the price to be paid by polluters for engaging in such an activity. As such, failure to observe the conditions of authorisation undermines the achievement of the objects of the POEOA (Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) (2014) 206 LGERA 239; [2014] NSWLEC 103 at [204]).
5. The pollution of water is considered a "result offence where the proscribed result directly undermines the object" of the POEOA (Baiada Poultry at [23]). As Robson J observed in Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 17 at ([80]-[81]): 80 The offence of water pollution plays an important role in giving effect to the objects in s 3 of the POEO Act, which include to protect the quality of the environment and to prevent pollution of it. As Preston CJ of LEC observed in Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280; (2008) 163 LGERA 71 ('Baiada') at [23]: "[p]ollution of waters is a result offence where the proscribed result directly undermines the object of the Protection of the Environment Operations Act." 81 The prohibitions on pollution in the POEO Act are moderated by the licencing regime in the legislation, which allows holders of environment protection licences to undertake activities that would otherwise constitute pollution (based on an assessment by the relevant regulator). Relevantly, the conditions of Sydney Water's EPL 378 allow sewage discharges in specific circumstances (such as the approximately 8,600,000 litres constituting the Wet Weather Discharge). By polluting waters, other than in accordance with the conditions of EPL 378 that were assessed and imposed by the regulator, Sydney Water undermined the objects of the POEO Act and the statutory scheme that prohibits pollution unless in accordance with an environment protection licence.

Maximum Penalty

1. The maximum penalty provided for an offence indicates the seriousness with which Parliament views the commission of the offence (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359 and Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698).
2. Charlotte Pass is charged with a breach of s 64(1) of the POEOA which carries a maximum penalty of $1,000,000 for a corporation. Similarly, the maximum penalty for an offence against s 120(1) of the POEOA by a corporation is $1,000,000 (s 123(1) of that Act).

Charlotte Pass's State of Mind at the Time of the Commission of the Offences

1. The offences are crimes of strict liability which means that mens rea is not an element of the offence. However, the state of mind of Charlotte Pass at the time of their commission is nevertheless relevant in the determination of an appropriate sentence (Environment Protection Authority v Maules Creek Coal Pty Ltd [2022] NSWLEC 33 at [153]). A strict liability offence that is committed intentionally, negligently, or recklessly, will be objectively more serious than one committed accidentally (Camilleri's Stock Feeds at 700A-700E, Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189 [2006]; NSWLEC 242 at [123] and Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 at [42]).
2. Having said this, the EPA did not make submissions in this respect and there is no evidence that Charlotte Pass committed the offences with any particular state of mind. The Court therefore makes no findings in this regard.

The Environmental Harm Occasioned or Likely to be Occasioned by the Commission of the Offences

1. Section 241(1)(a) of the POEOA requires that the Court take into account the extent of the harm caused, or likely to be caused, to the environment by the commission of the offences. "Harm" is defined in the Dictionary of the POEOA to include: Harm to the environment includes any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution.
2. The concept of harm in the context of environmental offences is broad, extending to both actual and potential harm (Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 at [145]-[149]).

The Extent of the Actual and Potential Environmental Harm Caused by the Commission of the Pollution Offence

1. The EPA contended, and Charlotte Pass accepted, that the pollution offence occasioned actual harm and potential environmental harm (s 241(1)(a) of the POEOA).
2. The EPA conceded, however, that the actual harm occasioned by the commission of the pollution offence was not substantial. Based on the evidence this concession was correct.
3. Actual harm to the environment was limited to the changed chemical condition of the water in the tributary and in Spencers Creek from 9 July to 24 September 2019. The extent of that harm was from Point 1, where the effluent entered the tributary, to 750 m downstream of the STP.
4. In relation to potential harm occasioned by the commission of the pollution offence, the ecotoxicity tests that the NATA accredited laboratory did on the biota in the receiving waters did not observe any toxicity to the cladocerans (the micro-crustacean Ceriodaphnia dubia) for the samples collected on 16 July 2019.
5. Similarly, there was no acute toxicity observed to the larval fish, bacterium or micro­ crustacean in the samples collected on 23 July 2019 and 5 August 2019.
6. Nor was there any acute toxicity observed to the test organisms in the samples collected on 24 September 2019.
7. However, discharging effluent to receiving waters can cause damage to the aquatic biota. For example, an overabundance of nitrogen in waterways has the potential to damage the ecological integrity of streams insofar as it can cause the overstimulation of growth of aquatic plants and algae. This can lead to larger scale changes in aquatic ecosystems and habitat degradation, such as clogging of lakes and rivers with algal/plant biomass, a reduction in water clarity and the blocking of light to deeper waters, together with reductions in DO through increased respiration and decomposition.
8. Excess levels of nitrogen (including ammonia) in waterways can also cause toxicity to aquatic organisms, particularly fish. Even short term (acute) exposures of fish to ammonia concentrations as low as 1 to 2 mg/L can produce adverse effects such as loss of equilibrium, increased breathing rate and increased oxygen uptake. A decrease of instream invertebrate diversity is also common.

The Extent of the Actual and Potential Environmental Harm Occasioned by the Commission of the Licence Offence

1. The extent of the actual or potential environmental harm occasioned by the commission of the licence offence was a matter of controversy between the parties, to which a considerable amount of time, evidence, especially expert evidence, and submissions were devoted to during the sentence hearing.
2. According to Charlotte Pass, the EPA had not proven beyond reasonable doubt that the commission of the licence offence was casually connected to the elevated levels of ammonia and nitrogen in the effluent discharged into the tributary and Spencers Creek, which caused actual and potential harm to the environment.
3. Charlotte Pass submitted that the EPA had to demonstrate to the requisite degree that the manner of breach particularised in the licence offence, that is, that the diffusers installed in aeration tanks 2 to 5 of the STP were not kept in a proper and efficient manner, caused the elevated levels of ammonia and nitrogen in the effluent discharged into the tributary and Spencers Creek. The EPA failed to do so, for the following reasons: 1. first, the Martens report concluded that there were five possible causes for the out of specification STP effluent being discharged during the charge period for the licence offence (at [46]): 46. Based on my review of the data and documents made available to me in respect of the lead up to and during the Relevant Period, I am not able to determine with any level of certainty, the precise cause of the out of specification STP effluent during the Relevant Period. The following are possibly contributing factors: a. It is possible that the electrical surge or faut that occurred very late in June or in early July impeded the growth of micro-organisms, or caused dieback, by affecting the heating or air supply system. b. It is conceivable that the STP biomass reseeding process using mixed liquor taken from the Jindabyne STP in mid-May was not able to thrive under the lower influent temperatures. c. It is possible that very cold influent for a period of a number of days at the beginning of the Relevant Period impeded the growth of micro-organisms or caused microbial dieback. d. It is possible that elevated chlorine levels within STP influent caused impeded growth or microbial dieback of micro-organisms. e. it is possible that the cause of the out of specification effluent was none of the above, but rather another random and unforeseeable shock event as yet undetermined, which occurred near the start of the relevant period. In oral evidence, Dr Martens agreed, however, that a sixth possible cause of the out of specification discharges was the poor state of the diffusers prior to and during the commission of the licence offence (T135:7). Notwithstanding this concession, he nevertheless opined that any failure to maintain the diffusers could not be isolated as the sole cause of the elevated levels of ammonia and nitrogen in the effluent; 1. second, the potential causes identified by Dr Martens in his report and oral testimony were corroborated by other evidence, namely: 1. there was a power outage between 23 and 25 April 2019 that led to the complete shutdown of the STP which may have contributed to the degradation of the biomass in the aeration tanks (Maclean affidavit at [36]-[39]); 2. it was likely that the biomass was less "efficient" due to the low temperature of the effluent. Drs Boyden and Martens were in agreement in this respect (T80:42-43 and 81:37); 3. Berkery indicated in his interview with the EPA on 4 November 2019 that the chlorine levels in the biomass could have inhibited nitrification during the charge period; 4. there was evidence that a random and unforeseeable shock event impacted the biomass prior to the offending period. For example, the sudden increase in DO within tank 4 on 19 July 2019 suggested that there may have been an event such as an air leak in tank 4 causing air to be preferentially diverted to tank 4. This could have caused the sudden drop in diffuser performance in tanks 2, 3 and 5 (Martens report at [40a]-[40d]); and 5. the diffusers were fouled to varying degrees such that they were not efficiently transferring oxygen through the aeration tanks (T135:7); 1. third, the evidence of Dr Boyden that the fouled diffusers caused the elevated levels of ammonia and nitrogen in the effluent discharged was not compelling and did not rise above speculation; and 2. fourth, the EPA's evidence did not establish any major defects in the diffusers during the charge period.

Whether the Potential Environmental Harm Occasioned by the Commission of the Offences Was Substantial

1. The EPA contended that the potential harm caused by the commission of the offences was substantial, and therefore, an aggravating factor pursuant to s 21A(2)(g) of the CSPA (citing Environment Protection Authority v Sydney Water Corporation [2015] NSWLEC 80) because: 1. of the nature of the pollutant as partially treated sewerage with high levels of ammonia detected in the receiving waters of the tributary and Spencers Creek; 2. of the high volume of effluent discharged during the offending periods; and 3. of the duration of the offending periods over multiple months.
2. Charlotte Pass contested the submission on the basis that the potential harm was minimal and limited in location. I agree.
3. The potential harm occasioned by the commission of the licence and pollution offences, while not trivial, was in no way sufficiently substantial for it to amount to an aggravating factor. This is because: 1. first, the effluent was discharged into a tributary where the discharge was authorised by the terms of the EPL. Notably, at no point did the volume of the partially treated effluent discharged exceed the limits imposed by conditions L3.1 and L3.2 of the EPL. Furthermore, there is no evidence before the Court that the volume of effluent, as distinct from the concentrations of toxins in that effluent, caused potential environmental harm; 2. second, the Nichols report concluded that the potential harm occasioned by the offending conduct was not significant and was transient (at p 15); and 3. third, the EPA's own expert on the matter provided equivocal findings on whether the potential harm was substantive. The Doyle report concluded that the elevated levels of ammonia were "known to be toxic to aquatic organisms" (at [45]) but nevertheless recognised that the potential harm was for a duration shorter than the charge period, that is, from 12 July to 5 August 2019 (at [49] and only extended 250 m downstream (at [47]). The Doyle report did not indicate that the potential harm was long-term or carried the risk of irreparable environmental harm.
4. On any view, the above evidence does not prove to the requisite criminal standard that the potential harm caused by Charlotte Pass's offending conduct was substantial, and therefore, I do not take this factor into account.

Reasonable Foreseeability of the Harm Caused or Likely to be Caused to the Environment by the Commission of the Offences

1. Section 241(1)(c) of the POEOA obliges the Court to have regard to the extent to which the offender could reasonably have foreseen the harm caused, or likely to be caused, to the environment.
2. Charlotte Pass accepted that the harm occasioned by the pollution offence was reasonably foreseeable.
3. Charlotte Pass submitted that because there was no actual or potential harm occasioned by the commission of the licence offence, it was not reasonably foreseeable that the commission of the licence offence would cause harm. However, actual and potential harm was occasioned by the commission of the licence offence in the manner found above.
4. Charlotte Pass as the holder of an EPL had notice of the possibility of harm arising from the activities regulated by that licence (see Environment Protection Authority v Centennial Newstan Pty Ltd [2010] NSWLEC 211 at [81] and Environment Protection Authority v Eveston (No 3) [2022] NSWLEC 128 at [66]).
5. Furthermore, Charlotte Pass had actual knowledge that the diffusers needed to be repaired prior to the commission of the licence offence. Both the 2017-2018 and 2018-2019 Environmental Work Plans developed by Charlotte Pass identified that the aeration pipeline between tanks 2 and 5, the diffusers and the control valves required replacement as a matter of high priority (see also the Maclean affidavit at [24]). The 2020 Environmental Work Plan expressly stated that Charlotte Pass needed to "replace all diffusers as the required dissolved oxygen levels can not [sic] be currently achieved". Similarly, independent reviews of the STP prior to the commission of the licence offence also identified that STP plant and equipment was not in a proper and efficient condition, including the diffusers. For example, the HunterH20 report noted the aeration process as "operational" but "not ideal" and identified that process risk as "high", and the Operations & Maintenance Summary Report prepared by S&B stated that the "fine air diffusers have not been replaced in more than nine years".
6. I am therefore satisfied beyond reasonable doubt that the harm occasioned by the licence offence was reasonably foreseeable.

Control over the Causes of the Commission of the Offences

1. Section 241(1)(d) of the POEOA requires the Court to take into account the extent to which the person who committed the offence had control over the causes that gave rise to it.
2. The EPA contended that Charlotte Pass, as the sole operator of the resort and STP, had control over the causes of the offending conduct. Charlotte Pass accepted that this was so.

Practical Measures Which Could Have Been Taken to Prevent or Mitigate the Environmental Harm

1. Charlotte Pass accepted that there were a number of practical measures that could have been taken by it to prevent, control, abate or mitigate the harm caused by the commission of both offences (s 241(1)(b) of the POEOA): 1. it could have instituted an inspection and maintenance program for the diffusers such that staff would regularly inspect, clean and replace them to maintain their functionality. This could have included: 1. incorporating diffuser maintenance into its annual and biannual maintenance systems. This has been introduced in the 2020 O&M Manual; 2. if the operator identified issues with the diffusers, it could have removed and replaced those diffusers during the off season even with the presence of mixed media on tanks 2 and 3; 3. the diffusers could have been cleaned either by removing them and soaking them in acid or by cleaning them in-situ by ejecting acid into the diffusers (Boyden report at p 21). This should have been done at least once every two years; 4. the diffusers should have been replaced approximately every six years, given EPDM membrane suppliers only give a guarantee of six years for membrane diffusers (Martens report at [52]); and 1. Charlotte Pass could have improved the functionality of the STP with additional monitoring and automated control, and replaced aging equipment including pipework and air delivery lines (Martens report at [31b]-[31c]).

Conclusion on the Objective Seriousness of the Offending Conduct

1. Considering all of the objective circumstances of the commission of the offences, I therefore consider that the licence offence and the pollution offence to be in the low to moderate range of objective seriousness, having particular regard to the degree of actual and potential harm caused by elevated levels of ammonia and nitrogen being discharged into the environment by the effluent over a period of many months.

Subjective Circumstances of Charlotte Pass

1. A proportionate sentence requires the Court to take into account any mitigating factors that are personal to Charlotte Pass (s 21A(3) of the CSPA). The relevant subjective circumstances are considered below.

Contrition and Remorse

1. Pursuant to s 21A(3)(i) of the CSPA, remorse will only be a mitigating factor if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),
2. In Waste Recycling Preston J remarked that "contrition and remorse will be more readily shown by the offender taking actions, rather than offering smooth apologies through their legal representatives" (at [203]). His Honour went on to summarise four ways by which an offender may demonstrate genuine contrition and remorse: 1. the efficiency of action rectifying the harm caused or likely to be caused by the commission of the offences (at [204]); 2. the voluntary reporting of the commission of the offences and any consequential environmental harm to the authorities (at [210]); 3. the measures taken to address the causes of the commission of the offences to prevent their occurrence in the future (at [212]); and 4. the personal appearance of corporate executives in court to give evidence of the defendant's regret and a plan of action to avoid the repetition of the offences (at [214]).
3. Blyton deposed in her affidavit to Charlotte Pass's remorse as follows: 34. As the most senior working executive of CPSR, on behalf of CSPR I record that it takes full responsibility for and apologises for the incidents in 2019 which resulted in STP effluent discharging in exceedance of the EPL Limits, charges to which CPSR has pleaded guilty in these proceedings. CPSR expresses, though me, its sincere remorse for these incidents. 35. I have personally had a long and close association with CPR. For over 15 years I have regularly stayed at CPR with my family and worked at the resort and its owned accommodation facilities periodically over that time in a variety of roles. I personally known and appreciate the pristine national part environment in which CPR exists and operates and would never intentionally case or inflict damage on the environment. 36. CPSR takes its responsibility for the environment very seriously. This is not only in relation to the treatment of wastewater but to environmental matters generally as they relate to the resort, for example our management of waste disposal transfers within and out of the resort every day.

Early Pleas of Guilty

1. A guilty plea entered at the earliest available opportunity entitles a defendant to the full 25% discount for the utilitarian value of that early plea (ss 21A(3)(k) and 22 of the CSPA and R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [160]).
2. The EPA contended that the utilitarian value of Charlotte Pass's guilty pleas was eroded by the way in which it conducted the sentence proceedings. A defendant who pleads guilty but puts the prosecution to proof on numerous factual issues, and who subsequently loses that contest, is not entitled to the same discount for a plea of guilty (see R v AB (2011) 59 MVR 356; [2011] NSWCCA 229 at [2]-[3]). In particular, the EPA submitted that Charlotte Pass put the prosecution to proof on the factual issue of whether the licence offence caused environmental harm, requiring the preparation of expert evidence and the cross-examination of those experts thereby unnecessarily extending the duration of the sentence hearing.
3. Conversely, Charlotte Pass argued that because it had entered a plea of guilty at the earliest opportunity it was entitled to the full 25% discount.
4. In R v AB Johnson J stated that (at [32]-[33], Bathurst CJ agreeing at [2]-[3]): 32 Likewise, a person who pleads guilty but puts the Crown to proof on certain factual issues and who loses that dispute, is not entitled to the same discount for a plea of guilty, on utilitarian grounds, as a person who does not require such a contested hearing. 33 These observations will have no application to the determination of the present Crown appeal. However, as a matter of general principle, this Court should state that the utilitarian value flowing from a plea of guilty is not a fixed element, and is capable of erosion as a result of the manner in which the sentencing hearing is conducted. This involves no more than an acknowledgment of the fact that what may be gained in utilitarian terms as a result of the avoidance of a trial may be lost, also in utilitarian terms, by way of a protracted sentencing hearing involving the adducing of evidence and the consumption of public resources for a purpose ultimately determined adversely to an offender.
5. These principles have been applied in previous cases, resulting in varying reductions to the discount for a defendant's plea of guilty (see Owens v R [2017] NSWCCA 16 at [64], Martin v R; R v Martin [2021] NSWCCA 316 at [64]-[78] and Secretary, Department of Planning and the Environment v Sell & Parker Pty Ltd [2022] NSWLEC 60 at [404]-[409]).

Assistance to the EPA

1. There is no doubt that Charlotte Pass provided assistance to the EPA in the investigation and prosecution of the offences (ss 21A(3)(m) and 23 of the CSPA) as follows: 1. it promptly reported exceedances of the limits imposed by the EPL to the EPA and did so prior to the first controlled discharge of effluent; 2. it co-operated with all site inspections by the EPA at the STP; and 3. it participated in the preparation of two statements of agreed facts that reduced the factual issues in dispute between the parties.
2. I take this factor in mitigation into account.

Prior Convictions of Charlotte Pass

1. Charlotte Pass has no prior convictions (s 21A(3)(e) of the CSPA).

The Good Character of Charlotte Pass and the Likelihood that It Will Reoffend

1. I find Charlotte Pass to be of good character notwithstanding the commission of the offences (s 21A(3)(f) of the CSPA).
2. Because Charlotte Pass is of good character, has demonstrated genuine contrition and remorse, and has put measures in place to prevent similar future offending, I find the likelihood that Charlotte Pass will reoffend to be low and that its prospects of rehabilitation are good (s 21A(3)(g) and (h) of the CSPA).

The Offences Could Have Been Prosecuted in the Local Court

1. While the offences could have been prosecuted in the Local Court, given their duration and complexity, such a course would have been highly undesirable (Harris v Harrison (2014) 86 NSWLR 422; [2014] NSWCCA 84 at [92]).

Deterrence, Denunciation and Retribution

1. The Court is required to take into account both specific and general deterrence (Walden v Hensler (1987) 163 CLR 561; [1987] HCA 54 at 569-570).
2. The penalty imposed by the Court must serve as a general deterrent (Axer at 359; Camilleri's Stock Feeds at 701 and Bentley at [139]. See also s 3A(b) of the CSPA). In Environment Protection Authority v Ballina Shire Council (2006) 148 LGERA 278; [2006] NSWLEC 289 Preston J discussed general deterrence in the context of sentencing for environmental crime (at [66]-[68]). Those principles are applied here without repetition.
3. The Court finds that embedded in the determination of the appropriate sentence to be imposed on Charlotte Pass is an element of general deterrence in order to ensure that holders of EPLs comply with the conditions attached to those licences when undertaking sewerage activities, and to undertake those activities in a manner that does not pollute waters.
4. In relation to specific deterrence (s 3A(b) of the CSPA), the EPA submitted that because Charlotte Pass continues to operate the STP under the EPL, the new diffusers in the STP require ongoing maintenance and there is no evidence that Charlotte Pass's staff have received any particular training on how to clean or replace the diffusers, warranting specific deterrence.
5. I disagree. Charlotte Pass has no prior convictions, is of good character and its offending conduct is of low to moderate objective seriousness. Charlotte Pass has taken numerous actions to prevent reoffending. I am not satisfied beyond reasonable doubt that specific deterrence is applicable in this case.
6. Finally, the Court must impose a sentence that achieves the purposes of denouncing the conduct the subject of the offences and making Charlotte Pass accountable for its actions.

Financial Capacity of Charlotte Pass to Pay a Fine

1. There was no suggestion that Charlotte Pass would be unable to pay any monetary penalty likely to be imposed upon it by this Court (see s 6 of the Fines Act 1996).

The Totality Principle

1. The totality principle is a relevant consideration when determining an aggregate penalty in sentencing for multiple offences (Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 at 62 -63, Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [40], Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15 at [18] and Water NSW v Barlow (2019) 244 LGERA 1; [2019] NSWLEC 30 at [111]-[112]).
2. Because there are multiple offences arising out of the same, common or related conduct, the totality principle applies. The effect of the totality principle is to require the Court to review the totality of the sentence to consider whether the penalty imposed is just and appropriate and whether it reflects the overall criminality of the offender before the Court.

Consistency in Sentencing

1. The task of the sentencing court is to seek even-handedness in the imposition of a sentence (R v Oliver (1980) 7 A Crim R 174 at 177 and R v Visconti [1982] 2 NSWLR 104 at 107). Care must be taken in comparing cases where the circumstances of, and facts relating to, the offences may be quite different (Axer at 365).
2. A pattern of sentencing for offences against ss 64(1) and 120(1) of the POEOA was identified by the EPA. In particular the EPA directed the Court's attention to: Environment Protection Authority v Forbes Shire Council [2014] NSWLEC 26, Sydney Water Corporation [2015] and Environment Protection Authority v Hawkesbury City Council [2017] NSWLEC 39.
3. Charlotte Pass directed the Court to consider the following cases that concerned a breach of s 64(1) of the POEOA: Bartter Enterprises (No 4), Orica (Nitric Acid Air Lift Incident) and Environment Protection Authority v Morgan Cement International Pty Ltd [2016] NSWLEC 140.
4. Charlotte Pass also relied upon the following comparable cases concerning an offence against s 120(1) of the POEOA: Environment Protection Authority v Crown in the Right of New South Wales [2019] NSWLEC 66, Environment Protection Authority v Crown in the Right of New South Wales [2019] NSWLEC 178, Environment Protection Authority v John Michelin & Son Pty Ltd [2019] NSWLEC 88, Hawkesbury City Council, Environment Protection Authority v Hunter Water Corporation [2016] NSWLEC 76, Forbes Shire Council, Sydney Water Corporation [2015] and Environment Protection Authority v Queanbeyan (2012) 192 LGERA 412; [2012] NSWLEC 220.
5. I have read and had regard to these cases, noting those that concern operators of STPs, their relative comparable objective seriousness and the presence of similar mitigating factors. However, it must be acknowledged that the Court should exercise caution in considering cases with different factual circumstances (Environment Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90 at [70] and Environment Protection Authority v Borg Panels Pty Ltd [2016] NSWLEC 71 at [45]).
6. Having made these observations, the Court has had particular regard to Hawkesbury City Council as a decision most comparable to the present proceedings. In that case, the defendant council was charged with one count of polluting waters, under s 120(1) of the POEOA and two counts of breaching its EPL pursuant to s 64(1) of that Act for overflows from the South Windsor STP. The offending conduct caused approximately 643,840 L of sewage sludge to be discharged into the environment and a nearby ephemeral creek over a number of days. The Court held that there was no actual harm but significant likely environmental harm in the short term, and therefore, that the offending conduct was in the low to moderate range of objective seriousness. The Court took into account the principle of totality, the council's early pleas of guilty and substantial remediation efforts in imposing a total fine of $175,000. The council was also ordered to pay the prosecutor's professional and investigation costs, and a publication order was made.

Costs

1. The EPA sought an order for its professional costs, as agreed or assessed, pursuant to ss 257B and 257G of the Criminal Procedure Act 1986. The EPA estimates these costs to be $337,000 (T220:5).
2. The EPA also sought, under s 248 of the POEOA, an order for the reimbursement of investigation costs fixed in the sum of $92,453.79.
3. Charlotte Pass did not cavil with the payment of the EPA's professional or investigation costs.
4. In the exercise of its sentencing discretion the Court can take into account any costs payable by the defendant (Environment Protection Authority v Causmag Ore Company Pty Ltd [2015] NSWLEC 58 at [123] and Environment Protection Authority v Barnes [2006] NSWCCA 246 at [78]-[88]). In doing so, the Court must be mindful that the payment of the EPA's costs is not a reason for reducing any penalty to be imposed in a particular case lower than that suggested by the general pattern of sentencing for the relevant offence (Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 at [50]).
5. I have taken the payment of the costs for which Charlotte Pass is liable into account in determining the sentence to be imposed upon it.

Appropriate Sentence

1. Having regard to the objective seriousness of the offences and the mitigating subjective factors of Charlotte Pass, together with the penalties imposed in the relevant comparable cases, I find that the imposition of a monetary penalty is warranted for each offence as follows: 1. for the pollution offence a fine of $120,000; and 2. for the licence offence a fine of $120,000.
2. Each penalty must be discounted by 20% for the utilitarian value of Charlotte Pass's early plea of guilty resulting in the imposition of a monetary penalty for each offence as follows: 1. for the pollution offence a fine of $96,000; and 2. for the licence offence a fine of $96,000.
3. After the application of the totality principle, the penalty for the commission of the licence offence should be reduced to $48,000. This brings the total penalty to $144,000.

Moiety

1. The EPA contended that half of any monetary penalty imposed by the Court ought to be paid to it pursuant to s 122 of the Fines Act. Charlotte Pass agreed with the making of such an order.
2. Having regard to all of the circumstances of the case, I find that it is appropriate to make such an order.

Publication Order

1. Finally, Charlotte Pass has consented to a publication order being made, pursuant to s 250(1)(a) of the POEOA (T220:29). The terms of the publication order were, after some discussion, largely agreed and are set out in annexure 'A' to this judgment.
2. I find that the making of a publication order to be appropriate (Ditchfield Contracting at [76] and Waste Recycling at [242]).

Orders

1. In conformity with the reasons given above, the Court makes the following orders: In proceedings 200270 of 2020 (1) Charlotte Pass is convicted as charged of an offence against s 120(1) of the Protection of the Environment Operations Act 1997; (2) Charlotte Pass is fined the sum of $96,000; In proceedings 200271 of 2020 (3) Charlotte Pass is convicted as charged of an offence against s 64(1) of the Protection of the Environment Operations Act 1997; (4) Charlotte Pass is fined the sum of $48,000; In proceedings 200270 and 200271 of 2020 (5) pursuant to s 122(2) of the Fines Act 1996, 50% of the fines imposed on Charlotte Pass are to be paid to the EPA; (6) pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, Charlotte Pass is, at its own expense, to cause a notice in the form of annexure 'A' publicising the Court orders to be placed in the following publications and on the following websites, within 28 days of the date of this order: (a) The Sydney Morning Herald (within the first 12 pages on an odd numbered page at a minimum size of 12cm x 12cm). Such notice must also appear on the website www.smh.com.au or the applicable website for The Sydney Morning Herald; (b) The Monaro Post (within the first five pages on an odd-numbered page at a minimum size of 12cm x 12cm). Such notice must also appear on the website www.monaropost.com.au or the applicable website for The Monaro Post; (c) www.charlottepass.com.au/latest-news/ or, in the alternative, the applicable website for Charlotte Pass in the "News" section (a copy of the notice must remain on the website for 60 days). A link to the decision of the Court must be included in this notice; and (d) on Charlotte Pass's Facebook and Instagram pages (a copy of the notice must remain on the website for 60 days). A link to the decision of the Court must be included in this notice; (7) Charlotte Pass must, within seven days of publication of the notices referred to above, provide to the EPA a complete copy of the pages of the publications and websites in and upon which the notices appear; (8) Charlotte Pass is to pay the EPA's legal costs as agreed or assessed, pursuant to ss 257B and 257G of the Criminal Procedure Act 1986; (9) Charlotte Pass is to pay the EPA's costs and expenses of the investigation pursuant to s 248(1) of the Protection of the Environment Operations Act 1997, fixed in the amount of $92,453.79; and (10) the exhibits are to be returned. Charlotte Pass Snow Resort Pty Ltd is Convicted of Two Environmental Offences On 21 November 2022 Charlotte Pass Snow Resort Pty Ltd ("the Resort") was convicted by the Land and Environment Court of New South Wales ("the Court") of the following offences against the Protection of the Environment Operations Act 1997: (a) one offence of water pollution contrary to s 120(1); and (b) one offence of breaching its environment protection licence, contrary to s 64(1). The offences were committed between 9 July and 24 September 2019. Over this period, effluent from the Charlotte Pass Snow Resort Sewage Treatment Plant ("the STP") was discharged into Spencers Creek with ammonia and total nitrogen levels in excess of the Resort's Environment Protection Licence limits. The total volume of effluent discharged from the STP during the charge period was approximately 11.65 ML including amounts of partially treated effluent both above and within the licence limits. The Resort was prosecuted by the NSW Environment Protection Authority ("the EPA") and pleaded guilty to the two offences. Following a hearing on sentence, the Court: (a) fined the Resort a total of $144,000; and (b) ordered it to pay the EPA's costs fixed in the amount of $92,453.79 and its professional costs as agreed or assessed. This notice was placed by order of the Court and was paid for by the Resort.

Amendments 23 November 2022 - Amendment to [196], [207(9)] and Annexure 'A' pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005. 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 November 2022