Environment Protection Authority v Sydney Water

Environment Protection Authority v Sydney Water - [2022] NSWLEC 100 - NSWLEC 2021 case summary — Zoe

[6]

The Statement of Agreed Facts

The Prosecutor and Sydney Water settled the SOAF which was tendered in these proceedings. It is set out below, in full, to provide details of background context of the events giving rise to these proceedings. The SOAF is in the following terms: The defendant 1. Sydney Water is a statutory State owned corporation established under the State Owned Corporation Act 1989. As a State owned corporation, Sydney Water has all the powers and responsibilities of a natural person. BACKGROUND Environment Protection Licence 372 2. At all relevant times, Sydney Water held Environment Protection Licence No. 372 (Licence) issued under the POEO Act for the scheduled activity of "Sewage treatment" at the Southern Suburbs Sewage Treatment System. The licensed activity of "sewage treatment" means: The operation of sewage treatment systems (including the treatment works, pumping stations, sewage overflow structures and the reticulation system) that involve the discharge or likely discharge of wastes or by-products to land or waters. 3. For the purposes of the Licence, the premises was described in Condition A2.1 of the Licence as the "Southern Suburbs Sewage Treatment System", which includes the following sewage treatment plants (STPs): a. "Malabar STP at Fishermans Road Malabar"; b. "Fairfield Storm STP, Symons Street, Fairfield"; c. "Glenfield STP, Victoria Road, Macquarie Fields"; and d. "Liverpool STP, Scrivener Street, Liverpool". 4. Condition A2.2 of the Licence provided that the premises also included "the reticulation system owned and operated by the licensee that is associated with the sewage treatment plant(s) identified in condition A2.1." 5. Condition E1.1 of the Licence further defined "reticulation system" as meaning "that part of the sewage treatment system which collects and transports sewage to the sewage treatment plant and includes all sewer pipes (whether greater or less than 300 mm diameter), access chambers, vent shafts, directed overflow structures and sewage pumping stations…". 6. The Licence contained the following relevant Limit Conditions: L1 Pollution of waters L1.1 Except as may be expressly provided in any other condition of this licence, the licensee must comply with section 120 of the Protection of the Environment Operations Act 1997. L1.2 Subject to the conditions of the licence, sewage must not be discharged from the components of the reticulation system except from those components identified on the system map. L1.3 Notwithstanding the provisions of the condition above, this licence does not permit the pollution of waters at any time during dry weather from: a) uncontrolled overflows, or b) directed overflows other than from sewage pumping stations, if a cause of the pollution is failure to: i) operate any part of the reticulation system in a proper and efficient manner; or ii) maintain any part of the reticulation system in a proper and efficient condition. L1.4 This licence does not permit the pollution of water at any time during dry weather from any pumping station. This condition is effective from 1 July 2006. … L7.4 Dry weather overflow limits The total number of dry weather overflows reaching waterways from the sewage treatment system subject to this licence must not exceed 122 in any reporting period. 7. In addition, the Licence contained the following relevant Operating Condition: 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. The Pumping Station 8. Sewage Pumping Station SP0213 (Pumping Station) was situated at Waterside Crescent, Carramar and formed part of the "reticulation system" the subject of Condition A2.2 of the Licence. The Pumping Station was originally constructed in 1965 and renewed in 1992. 9. From the time of its constitution as a State Owned Corporation in 1994 and the transfer to it of the business undertaking of the (former) Water Board, Sydney Water was responsible for the management, operation, inspection, maintenance and repairs of the Pumping Station. Furthermore, by virtue of the provisions of the Water Board (Corporatisation) Act 1994, any act, matter or thing, done or omitted to be done in relation to the business undertaking before the transfer, by, to or in respect of the Water Board is (to the extent that that act, matter or thing has any force or effect) taken to have been done or omitted by, to or in respect of Sydney Water. 10. The Pumping Station's purpose was to collect wastewater from the Lansvale Wastewater System Area (also referred to as Lansvale Sewer Catchment Asset Management Plan (SCAMP)) and to pump it uphill into the North Georges River Submain (NGRS). The flows into the Pumping Station came from both the local catchment (which consists of parts of Canley Vale and parts of Lansvale) and the nearby Sewage Pumping Station SP0187, located in Cabramatta. 11. The Pumping Station contained a designed overflow pipe which was located in the collecting maintenance hole. The designed overflow pipe flowed directly to Prospect Creek, with the end of the designed overflow pipe submerged in Prospect Creek. In the event that the pumps did not operate (or the flows into the Pumping Station exceeded the pumping capacity of the Pumping Station), the wet well continued to fill until it overflowed. The designed overflow pipe ensured that any wastewater that overflowed from the wet well was directed into Prospect Creek in order to protect public health and safety. The Rising Main 12. The Rising Main ran from the Pumping Station at Waterside Crescent, Carramar, underground through Carrawood Reserve and to Tuncoee Road, Carramar, and formed part of the "reticulation system" the subject of Condition A2.2 of the Licence. The Rising Main was a 600 mm diameter cast iron cement lined (CICL) pipe with a total length of 1,163 m (from the Pumping Station to Tuncoee Road, Carramar). The Rising Main was constructed in 1965 and was commissioned and operational in 1966. 13. The Rising Main's function was to transport wastewater from the Pumping Station to the main sewer carrier for the area, the NGRS. The flows were pumped from the Pumping Station to the Rising Main, then to the NGRS, and eventually to the Malabar STP. The Isolation Valve 14. Sewage Pumping Station SP0187 was situated at Sussex Street, Cabramatta. There was a 600 mm rising main used to pump wastewater from Sewage Pumping Station SP0187 to the Pumping Station. There was a junction in the 600 mm rising main, which is the point where it connected to a secondary 450/375 mm rising main capable of being used to pump wastewater to the Liverpool Water Recycling Plant (also known as the Liverpool STP). An Explanatory Schematic of SP0187 is at Appendix A to this Agreed Statement of Facts. In total, Sewage Pumping Station SP0187 contributed approximately 80% of flow into the Pumping Station. 15. The Isolation Valve (Valve 2 in Appendix A) was a 450 mm gate/isolation valve (which was closed during normal operation) located on the secondary 450/375 mm rising main which led to the Liverpool Water Recycling Plant. Prospect Creek and Carrawood Reserve 16. The Pumping Station and Rising Main were located in the vicinity of Prospect Creek and Carrawood Reserve. 17. Prospect Creek is a major tributary of Georges River and is a brackish creek, influenced by tides at Carramar, NSW. Prospect Creek is in a largely urbanised catchment area with residential and open spaces for recreation. 18. Carrawood Reserve is managed by Fairfield City Council and includes Carrawood Oval, a playground and open space for the community. These structures are for purposes of environmental and heritage protection, recreation and sport, and open space. At the northern part of Carrawood Reserve are several residential properties. DETAILED CHRONOLOGY 14 January 2019 19. At 5:37 pm on Monday, 14 January 2019, Sydney Water received a report that an overflow had occurred at Quest Avenue, Carramar. 20. At about 6:54 pm, a Sydney Water Network Technician attended the site and carried out an inspection. An overflow had occurred. Upon inspection, the overflow was traced to the Rising Main. At this time, the Network Technician installed advisory signage. 21. At about 7:30 pm, Sydney Water declared the incident as a Part 1 Material Harm Incident. 22. At about 7:35 pm, Sydney Water issued a job to its contractor, Ventia Pty Ltd (Ventia), to attend the site with a bypass pump and bypass tankering manifold and to investigate the operation of the Pumping Station. 23. At about 8:10 pm, Sydney Water's Networks Team Leader arrived at the site to carry out an assessment of the overflow incident. 24. At about 8:27 pm, a Ventia technician arrived at the site to provide assistance and manually operate the Pumping Station. 25. At about 8:30 pm, Sydney Water's Customer Liaison Officer (CLO), Mr Otto Lupo, notified the EPA's After-Hours Incident Response Duty Officer, Ms Tenille Lawrence‑Haskew, of the incident via Environment Line. The report received by Ms Lawrence- Haskew stated: "Significant sewerage incident declared, broken 600 mm Rising main At waterside Cres Carramar. NT on site signs erected Veolia engaged for tankers, Ventia enroute to set up bypass FST required." 26. At about 8:52 pm, Sydney Water's Civil Field Crew confirmed that the sewage overflow had reached Prospect Creek. Sydney Water's Civil Field Crew installed perimeter fencing around the affected area to prevent public access and requested additional sandbags to set up containment around the overflow location. 27. At about 8:53 pm, Mr Lupo completed notification to five authorities, being the NSW EPA, NSW Fire & Rescue, NSW Health, WorkCover and Fairfield Local Council. 28. At 8:56 pm, Ms Lawrence‑Haskew contacted Mr Lupo by telephone and had a conversation, which included an exchange to the following effect: Mr Lupo: "The location of the break is near pump station SP0213. There are crews onsite. I cannot confirm whether the main line has been shut off. At this stage, I am not sure if there is enough capacity within the pump station to curb the flow and to allow a bypass to be set up." Ms Lawrence‑Haskew: "Can you please contact me directly and provide further updates as the Incident progresses?" 29. At about 9:00 pm, the Sydney Water dispatcher started organising additional resources to attend the site, including tankers, an aerator, bypass pump/manifold, civil repairs crew, Sydney Water's CLO, and Sydney Water's Specialised Environmental Response Team (SERT) and Sydney Water's Field Sampling and Testing Team (FST). 30. At about 9:50 pm, a 14‑tonne excavator and one Veolia Environmental Services (Australia) Pty Ltd (Veolia) tanker arrived at the site. During the evening, the works undertaken by Sydney Water (or its contractors) to divert sewage and reduce the overflow included: a. Using the tanker on site to remove sewage from the surface in the vicinity of the split on the Rising Main to a sewer in a different sewerage catchment (being the catchment for Sewage Pumping Station SP0419). b. Using the excavator to create a channel and coffer dam around the location of the Rising Main to contain and direct the overflow to sewer manholes on a nearby 300 mm gravity main. 31. At about 10:00 pm, Sydney Water started flushing the area affected by the sewage overflow with freshwater. 15 January 2019 32. At 2:43 am on Tuesday 15 January 2019, EPA Officer, Tenille Lawrence‑Haskew had a conversation with Sydney Water Engineer, John McKeon, which included an exchange to the following effect: Mr McKeon: "Ventia, a Sydney Water Contractor, is onsite and has instated a bypass to tankers which has significantly reduced the flow. There are signs and barrier tape in place to deter access to the affected area. There is partial containment in place. Trenches have been dug in to curb the ongoing flow. A large area, approximately 50% of Coleman Park, as well as the public playing fields at Carrawood Oval, have been affected. The discharge is predominantly liquid and brown sludge. Prospect Creek is approximately 50 to 70m from the affected area." Ms Lawrence‑Haskew: "Has any containment been installed and what type of containment controls do you have in place?" Mr McKeon: "We are unable to use water gates. There is no containment in Prospect Creek. Compressed air aerators will be deployed and FST are due onsite first thing in the morning. We have not yet sighted the breach. It will be necessary to bypass the pumping station in order to shut down the rising main. The rising main is pressurised and approximately 1km long. A repair to the line will require a full isolation of the pumps but there is a 2.4m gravity main to assist with backflow. More resources and more tankers are to be deployed. We anticipate a full bypass of the pump station between 7 am and 8 am." 33. At about 6:40 am, Ms Lawrence‑Haskew, arrived at the site. Shortly after arriving at the site, Ms Lawrence‑Haskew had a conversation with Mr Peter Rennex, Sydney Water Area Manager. 34. Ms Lawrence‑Haskew then conducted an inspection of the area. 35. By about 7:21 am, five tankers were present on site to remove sewage from the vicinity of the overflow to the sewer in a different sewage catchment. 36. At about 7:30 am, Sydney Water's Civil Field Crew reconstructed the coffer dam around the location of the Rising Main to allow better diversion of the sewage into sewer manholes on the nearby 300 mm gravity main. 37. At about 7:33 am, Sydney Water's Field Sampling and Testing (FST) team attended the site to carry out an environmental assessment. The FST team provided clean-up recommendations that included installing aerators upstream and downstream of the inflow point in Prospect Creek and arranging for a boom to hold up any surface debris and oil. Aerators and booms were subsequently installed in Prospect Creek by approximately 5.00 pm on 15 January 2019. 38. At about 8:15 am, Mr Zane Ke, Sydney Water Engineer, sent Ventia contractors, Mr Luke Aquilina and Mr Joel Saad, to operate the Isolation Valve located near Sewage Pumping Station SP0187. 39. At about 11:35 am, EPA Officers Aleesha Rodgers and George Orel, arrived at the site of the overflow and at about 11:40 am, they were taken by Mr Rennex and Mr Ke to a location where sewage had pooled in Carrawood Reserve. In this area, Ms Rodgers and Mr Orel observed the following: a. pooled liquid which was a turbid brown-grey colour extending east to west over a distance of about 175 metres, and south towards Prospect Creek; b. pressurised liquid flowing to the surface in one area, indicating the approximate location of the break in the Rising Main; c. sewage flowing towards the south on the outside of a constructed bund which did not appear to be effective; d. a moderate ambient sewage odour. 40. At this time, Ms Rodgers and Mr Orel had a conversation with Mr Rennex, Mr Ke and other Sydney Water staff. 41. Ms Rodgers and Mr Orel then continued their inspection of Carrawood Reserve and Prospect Creek and subsequently sampled the untreated sewage flowing overland at Carrawood Reserve and took water samples at various locations in Prospect Creek. During that inspection, Ms Rodgers and Mr Orel observed the following: a. brown-grey liquid sewage pooling within the oval and flowing down gradient, across a footpath toward Prospect Creek; b. a sewage odour varying in strength from slight to strong. 42. At about 11:50 pm, Sydney Water took steps to shut down the Pumping Station and replace the broken section of the Rising Main. To replace the broken section of the Rising Main, Sydney Water was required to shut down the Pumping Station, drain the Rising Main and insert a plug in the end of the Rising Main to stop flows from the gravity main coming back down the Rising Main to the repair area. Sydney Water considered the risk that sewage would overflow from the Pumping Station while it was shutdown. Sydney Water arranged for tankers to be present to manage the level of sewage flowing into the wet well of the Pumping Station by removing it from the wet well and transferring it to an alternative location. 43. There was an overflow from the Pumping Station into Prospect Creek. Sewage overflowed from the Pumping Station. The overflow from the Pumping Station ceased at 1:26 am on Wednesday, 16 January 2019 when the tankers were able to keep up with the inflow into the Pumping Station. Only two tankers were filled at any time. 16 January 2019 44. At about 7:47 am, the repair of the Rising Main was complete. OTHER MATTERS Duration and estimated volume of the overflows 45. Sydney Water has provided the following information in relation to the duration and estimated volume of the overflows: Dates and Times Location Total duration Volume of overflow Between 5:37 pm on 14 January 2019 and 1:28 am on 16 January 2019 Rising Main 31 hours 51 minutes 318,000 litres Between 11:59 pm on 15 January 2019 and 1:26 am on 16 January 2019 Pumping Station 1 hour 27 minutes 282,000 litres Total 600,000 litres

[10]

Matters relevant to the overflow from the Rising Main between 14 and 16 January 2020 Cause of the Rising Main failure 49. Sydney Water has stated that the Rising Main failed longitudinally along the bottom of the pipe due to erosion of the invert of the pipe. Sydney Water has obtained the following reports in relation to the possible root cause of the split in the Rising Main: a. In 2019, Sydney Water prepared a report titled: "Water Main/Pressure Sewer Pipe Inspection Report", dated 22 January 2019. b. In February 2019, Philip Ferguson, of Pipeline Condition Assessment, prepared a report titled, "Failure Investigation SPS213 SRM - Preliminary Comments", dated 4 February 2019. c. In July 2019, Philip Ferguson and Ronald Christian prepared a further report titled: "SPS0213 - DN600 CICL Failure Investigation Report", dated 15 July 2019. d. In September 2019, Philip Ferguson and Ronald Christian prepared, and Tania Gonzalez reviewed, a further report titled: "SPS0213 - DN600 CICL Failure Investigation Report", dated 12 September 2019. e. In November 2019, Philip Ferguson prepared a report titled: "Failure Investigation Final Report of SP213", dated 15 November 2019. f. In December 2019, Philip Ferguson prepared, and Dr Matthew Tai reviewed, a report titled: "Failure Investigation Final Report of SP213", dated 17 December 2019. Previous conditions assessments relating to the Rising Main 50. In March 2007, Sydney Water obtained a report titled: "Condition Assessment of SPS213 Sewer Rising Main for SWC", dated 5 March 2007, prepared by Philip Ferguson, EarthTech. Matters relevant to the overflow from the Pumping Station between 15 and 16 January 2020 Cause of the overflow from the Pumping Station 51. Before the shutdown of the Pumping Station, Sydney Water considered the risk that sewage would overflow from the Pumping Station while it was shutdown. Sydney Water arranged for tankers to be present to manage the level of sewage flowing into the wet well of the Pumping Station by removing it from the wet well and transferring it to an alternative location. An overflow from the Pumping Station into Prospect Creek commenced, which occurred when the tankers were not able to keep up with the inflow into the Pumping Station. Only two tankers were filled at any time. Matters relevant to the Isolation Valve Reports relating to the Isolation Valve 52. In October 2019, Ventia was engaged by Sydney Water to prepare a report titled: "Ventia Mechanical Report SPS0187 - Valve Preliminary Inspection". The report related to the isolation valve (see par 15 above). Maintenance schedule relating to the Rising Main 53. Sydney Water has advised that the Isolation Valve was replaced on 12 September 2019. Actual and potential harm to the environment 54. The overflows that are the subject of proceedings 2020/11340 and 2020/11341 resulted in actual harm to the environment in the form of direct alteration of the chemical and biological characteristics of Prospect Creek waters. 55. The direct alterations to the characteristics of Prospect Creek waters relative to background conditions were: a. increased density of indicator organism faecal coliforms exceeding the Australian and New Zealand Environment and Conservation Council (ANZECC) Australian Guidelines for Water Quality Monitoring and Reporting (2000) by up to 7,800 times; b. increased density of indicator organism enterococci exceeding background level by up to 1,120 times; c. increased levels of ammonia; d. reduced dissolved oxygen levels; e. observed sewage odour; f. observed turbidity and/or change in colour. Appendix A

[19]

The rising main charge

One element of Sydney Water's EPL requires consideration solely in the context of the rising main charge. This is in the following terms: L7.4 Dry weather overflows limits. The total number of dry weather overflows reaching waterways from the sewage treatment system, subject to this license must not exceed 122 in any reporting period.
Also relevant to the rising main charge are a number of definitions in the Special Dictionary in E1.1 of Part 9 Special Conditions of the EPL. The relevant definitions have been extracted and are set out below: Term Definition directed overflow Means a directed overflow structure within the reticulation system. directed overflow structure Means a designed structure (excluding access chambers) in the reticulation system which operates as a relief to allow sewage to discharge at a planned location or a sewage pumping station, but does not include a bypass from a sewage treatment plant. dry weather Dry weather occurs when less than 10 millimitres [sic]of rainfall has been measured at a rain gauge in the catchment of the sewage treatment system during a 24 hour period (where there is no rain gauge in the catchment, at the rain gauge closest to the centre of the catchment). Dry weather SPS discharge occurs when less than 10mm rainfall has been measured at a rain gauge in the catchment of the SPS during a 24 hour period (where there is no rain gauge in the catchment at the rain gauge closest to the SPS). dry weather overflow Means an overflow in the reticulation system not caused by wet weather, as determined by the hydraulic sewer system model. overflow Is a discharge of untreated or partially treated sewage from the sewage treatment system. Overflows may occur as directed overflows or uncontrolled overflows. uncontrolled overflow Means an overflow from any part of the reticulation system that is not a directed overflow. Leakage or overflows from access chambers are examples or uncontrolled overflows. wet weather Wet weather occurs when 10 millimetres or more of rainfall has been measured at a rain gauge in the catchment of the sewage treatment system during a 24 hour period (where there is no rain gauge in the catchment, at the rain gauge closest to the centre of the catchment). wet weather overflow Means an overflow in the reticulation system caused by wet weather as determined by the hydraulic sewer system model.

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Introduction

A significant volume of documentary material was provided electronically. Not all of this material was necessary to be tendered (or selected by Sydney Water for tendering) for the purposes of this phase of the proceedings against Sydney Water. During the course of the hearing, I was able to access documents to which the advocates were making reference and have them display on a secondary screen on the Bench. In addition, the commercial service which had been engaged for the purposes of preparation of the electronic materials provided an operator who was available throughout the hearing. The operator was able to access referenced documents and, using a screen‑sharing function, was able to pull up relevant extracts from documents identified by one of the advocates, so that those documents were visible to those attending the proceedings electronically (including to any witness who was being cross‑examined concerning the contents of documents relating to that person's evidence).
It is to be observed that, in addition to the witnesses who were foreshadowed as being required for cross‑examination by one party or another, there was also other extensive evidentiary material provided electronically in the Court Book. As later noted (ignoring for present purposes objections to evidence), not all the electronic material was in fact tendered.
Although it is appropriate to reference, where necessary, other affidavit or documentary evidence which is potentially relevant and had been referred to in submissions (whether oral or written) by one or both of the parties, it has also been necessary to rely on the fact that the documentary material has been provided in searchable PDF format, as undertaking a word‑by‑word examination of all of the documents would have been an impossible task. Where relevant documents were referenced in submissions, I have considered the entirety of, or the relevant elements in, such documents in the context in which they were referenced.

[30]

The reopening topics

In an e‑mail on 17 September 2021, the Prosecutor had advised Mr Hemmings of the detail of the two topics for which the Prosecutor proposed to seek leave to reopen. After addressing the issue of principle as to whether reopening was available (as discussed above), a copy of the e‑mail, which had been sent to Mr Hemmings, was forwarded to my Associate. The terms of the two matters (said to be matters of law) which the Prosecutor proposed to address were conveyed to Mr Hemmings (and subsequently relayed to me): The two matters of law are: 1. It was submitted for the Defendant to the effect that, via its employees, it held a belief it held a belief as to the likelihood and timing of any failure of the Rising Main, and to the likely failure mechanism of the Rising Main (see end of para [176] of the defendant's written closing submissions). This was said to prove the defence of Mistake of Fact in relation to the offence. It was submitted that the Defendant had a reasonable belief targeted to the specific subject-matter of the offence. This erroneous as a matter of law. Section 122(1) provides an onus to prove the fact that no cause of the water pollution was a failure to maintain. That onus cannot be avoided by proving a belief in facts amounting to s 122(1) factors. The reasonable belief has to be as to an element of the offence (Ostrowski v Palmer). Evidence as to a belief about s 122(1) factors is not evidence as to an element or the elements of the offence. There is no evidence capable of proving that SWC had a state of mind in relation to an element of the Rising Main offence as is required for the 'defence' of Mistake of Law. 2. When addressing written submissions around [295]-[296] and [300]-[303], it was submitted for the Defendant to the effect that, in trying to operate the isolation valve, Mr Aquilina failed to operate the valve properly. It was submitted that it follows that what occurred was that there was a failure to operate the valve in a proper and efficient manner, not a failure (as charged) to maintain the valve in a proper and efficient condition. Mr Aquilina did not have put to him failed to operate the valve properly. He was not given the opportunity to respond to the accusation that he failed to operate the valve properly. He has been denied procedural fairness. The Prosecutor has been denied procedural fairness in that it has been deprived of an opportunity to re‑examine Mr Aquilina on such a question. Denial of procedural fairness is jurisdictional error. The Court should not accept that submission.
As the submissions of the Prosecutor and Mr Hemmings on each of these matters were concise, it is appropriate to set out, in full, the oral submissions of each of them on each of the topics prior to my consideration of that topic.
In each instance, the Prosecutor took me to elements of matters from the transcript of Mr Hemmings' closing oral submissions. It is not necessary to reproduce the extracts to which I was taken.

[32]

The Prosecutor's submissions

The Prosecutor's submissions were (Transcript 17 September 2021, page 312, line 36 to page 313, line 48): PROSECUTOR: … As to the first matter, it arises, your Honour, from transcript p 279 line 9 going down to line 15 and‑‑ ... You see the edit at line 9, your Honour, the words "Sydney Water held a belief"? ... PROSECUTOR: This is from my friend's address yesterday in relation to the light and failing - I don't think he said "light", but a failing mechanism for the rising main. And that belief was that "The rising main could fail due to a combination of internal and external corrosion probably combined with the increase in pressure at pump at the start‑up or possibly combined with the water hammer effect. And Sydney Water further, reasonably believes that it would not be until approximately 2023 that the annual probability of failure would reach 10%." I could take your Honour, then to line 30. … "The Court would be satisfied, in our submission, that Sydney Water held a belief, it's a reasonable belief, there's no suggestion it was not honestly held, plainly it relates to matter of fact, not law and it's relevantly targeted to the specific subject matter of the offence." This is around the end of my learned friend's written submissions at para 176 of his written submissions as well. In para 176, my learned friend says, "In these submissions…would reach 10 percent." We submit, your Honour, as I conveyed to our learned friends last night, that the defendant had submitted to the effect that, via its employees, it held a belief as to the likelihood and timing of any failure of the rising main, and to the likely failure mechanism of the rising main. This was said to prove the defensive mistake of fact in relation to the offence. It was submitted that the defendant had a reasonable belief targeted to the specific subject matter of the offence. We submit this is erroneous as a matter of law, via condition L 1.3 (ii), and s 122(1) of the EOPOA. The EOPOA provides an onus to establish the fact that no cause of the water pollution was a failure to maintain in a proper and efficient condition, that onus, your Honour, being a statutory onus, cannot be avoided by proving a belief in facts amounting to a s 122(1) factors. That is to say, to the extent that it does, the legislature has impinged upon the onus of proof, in relation to matters, by casting it, without qualification, upon the defendant to prove s 122(1) factors. The second submission is that it's erroneous for a second reason, and that is that the reasonable belief has to be as to an element of the offence. Your Honour will recall that, at the very end, in the last page of our written submissions, we provided your Honour, we hope, with some assistance as to what the authorities have to say as to how to approach the defence of mistake of fact. One of the authorities was the High Court's decision in Ostrowski v Palmer [2004] HCA 30, and at the passages there cited, your Honour, it's made plain that mistake of fact as a defence is available only when it is as to an element of the offence. We submit that evidence as to a belief about s 122(1) is not evidence as to an element, or the elements, of the offence.

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Consideration

For reasons outlined in detail in the substantive sections of this decision dealing with the rising main charge, Sydney Water's lack of guilt was sought to be established on the basis of two separate and unconnected defences.
The first was the statutory defence provided for by s 122 of the POEO Act. This defence was said by Sydney Water to be available via a path founded on what was submitted to be the correct interrelationship of Limit Conditions L1.3 and L7.4 of Sydney Water's EPL. Properly understood, it was submitted, the effluent which reached Prospect Creek by travelling across Carrawood Reserve from the split in the rising main was authorised by the EPL as, at the time it occurred, Sydney Water had not reached the maximum number of dry weather (non‑pumping station‑sourced) effluent overflows permitted by the EPL in any accounting period.
This defence (which, for reasons I later explain, has been made out) is not based on any mistake of law in the fashion raised by the Prosecutor during the submissions on Topic 1, after leave was granted to reopen.
The second, separate basis upon which Sydney Water founds its "not guilty" plea to the rising main defence is a Proudman v Dayman defence (Proudman v Dayman (1941) 67 CLR 536 - Proudman v Dayman) of an honest and reasonably held mistake of fact as the exculpatory basis.
In my later consideration of this separate defence (where I explain how Sydney Water has established that the various factors described by Pepper J in Environment Protection Authority v Unomedical Pty Limited (No 3) (2010) 79 NSWLR 236; [2010] NSWLEC 198 (Unomedical (No 3)), at [262], have been satisfied by Sydney Water and thus provide a foundation for this second defence), this required a purely factual analysis, not one which involved any questions of law, as here proposed by the Prosecutor during its post reopening submissions. Indeed, as can later be seen, if any issue of a mistaken understanding of the law arose during consideration of a defence based on "honest and reasonably held mistake of fact" did arise, that automatically rendered that potential defence unavailable.
As a consequence, there is nothing arising out of Topic 1 pressed by the Prosecutor after reopening that requires further separate consideration.

[37]

The Prosecutor's submissions

The Prosecutor's submissions were (Transcript 17 September 2021, page 314, line 36 to page 315, line 25): PROSECUTOR: The transcript references, in yesterday's transcript - if I could ask the operator again to pull up the transcript for yesterday, please, and go to p 291. Could you focus on the bottom half of the page, please, so that we can see line 30. Thank you. So the submission was made commencing, "So the prosecutor…error by Aquilina." I suspect that the word that my friend used was "unable", but he will have a better idea than I do. … PROSECUTOR: But it's the first reference to operator error by Aquilina, that's the context, your Honour. Operator, could we please go to p 293, top half of the page. Thank you. In the second paragraph, the second sentence: "In our submission…operator error only." Then p 295 please, operator, top half of the page again, please. The first paragraph, line five, "and so the…by Mr Aquilina." Those are the passages which give rise to our application, in this regard, your Honour, and our submission, as conveyed to our learned friends last night: When addressing those submissions, it was submitted for the defendant to the effect that in trying to operate the isolation valve, Mr Aquilina failed to operate the valve properly. It was submitted that it follows that what occurred was that there was a failure to operate the valve in a proper and efficient manner. Not a failure as charged to maintain the valve in a proper and efficient condition. Mr Aquilina did not have put to him that he failed to operate the valve properly. He was not given the opportunity to respond to the accusation that he failed to operate the valve properly. We submit that he has been denied procedural fairness. Your Honour would be aware that witnesses can be denied procedural fairness as much as parties can. But in addition, we submit that the prosecutor has been denied procedural fairness in that it has been deprived of an opportunity to re examine Mr Aquilina on such a question, and the denial of procedural fairness is jurisdictional error, and your Honour should not fall into that error by accepting that submission.

[38]

Sydney Water's response

Mr Hemmings' submissions were (Transcript 17 September 2021, page 315, line 29 to page 316, line 30): HEMMINGS: Your Honour will recall the framing of the question by Mr Buchanan is the starting point of the, with respect, error in the submission, and that is Mr Aquilina failed to operate the valve properly. And in the second paragraph, Mr Aquilina did not have put to him that he failed to operate the valve properly. I've done a search both of transcript and written submissions, and no suggestion was ever made about a proper or an improper operation, because it's not the point. The Court will recall the transcript that I took the Court to yesterday, from the cross‑examination of Mr Aquilina. It's at p 292. There's the two extracts there: "Q. So, there were two valves and the two different covers and the overgrown grass. A. Yeah. Q. You haven't worked in either of them in the past before. A. No. Q. Did you find the covers when you went to the site. A. Yeah. Q. Mr Aquilina, it's correct, is it not, you found two covers. A. Yes. Q. You opened both covers? A. Yes. Q. Did you try and operate those valves? A. Yes. Q. When you tried to operate both valves, both of them failed to operate, and they were spinning freely. A. That's correct." There is no rule of fairness or otherwise in the prosecutor's case, which is this evidence is to demonstrate that the valves were broken, and I asked him plainly and clearly, was he able to operate. No rule of fairness required to then ask another question, which is apparently the suggestion, and to say, "And when you tried to operate both valves, both of them failed to operate, because you couldn't operate them," there's no requirement for me to do that. And if there was any unfairness, any uncertainty that was left over, had the opportunity to re‑examine, to say, "I'm confused by your questions, Mr Aquilina. When you said both of them failed to operate and they were spinning freely, why was that?" This rule that my friend relies upon is one of fairness, and there is nothing unfair about the questions that we asked, the answers that we elicited, especially when the prosecutor was plainly on notice because of their own evidence that they had put on by Mr Kelly, that the valves were in fact working condition when Mr Kelly removed them. The fact that they now regret that they didn't ask questions in re‑examination, or ask something in chief to clarify what his affidavit meant, doesn't lead to any unfairness, either to Mr Aquilina or to the prosecutor.

[39]

Consideration

As can be seen from my subsequent detailed consideration of Sydney Water's defence to the valve charge, successful advancing of the defence was not predicated upon me reaching the conclusion that Sydney Water had positively proved that Mr Aquilina had failed to operate the valve correctly.
Sydney Water's defence, for reasons I have later explained, is clearly based on the proposition (founded on cumulative consideration of the evidence of Mr Aquilina, Mr Saad and Mr Kelly) that the Prosecutor has not proved beyond reasonable doubt that the failure by Mr Aquilina to operate the valve, as directed by Mr Ke, could not have been as a result of Mr Aquilina's failure to operate the valve to achieve the desired diversion of effluent to the Liverpool Treatment Plant.
The burden of proof clearly falls on the Prosecutor to prove this charge against Sydney Water beyond reasonable doubt. Sydney Water's defence, founded on the evidence of Mr Aquilina and Mr Saad, as to the valve key "spinning freely", when considered in conjunction with the evidence of Mr Kelly as to the operability of the valve when removed, means that the Prosecutor has not excluded the possibility of operator error, thus resulting in the Prosecutor not proving its case on this charge to the standard of proof required.
As a consequence of this apparent misunderstanding or misconsideration of the basis upon which Sydney Water has founded its defence to the valve charge, I am satisfied that Mr Hemmings' cross‑examination of Mr Aquilina was not defective in the fashion raised by the Prosecutor in the fashion pressed after leave to reopen was granted. The alleged defects in cross‑examination are not, in fact, defects in the fashion now raised. As the necessary further consequence, for the reasons later discussed in detail by me concerning the valve offence, I am satisfied that, on a proper understanding of the facts, the Prosecutor has not demonstrated Sydney Water's guilt of a breach of condition O2.1(a) of Sydney Water's EPL.

[41]

Introduction

On 2 March 2022, the Court of Criminal Appeal handed down its decision in Bartter Enterprises Pty Ltd v Environment Protection Authority [2022] NSWCCA 43 (Bartter CCA). The appeal was against the decision of Duggan J in Environment Protection Authority v Bartter Enterprises Pty Ltd (No 3) [2020] NSWLEC 114 (Bartter (No 3)) where, at first instance, her Honour had convicted Bartter Enterprises of a breach of s 64(1) of the POEO Act by virtue of a breach of a condition of Bartter Enterprises' environment protection licence, with that condition being in the following terms: 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.
As can be seen, the environment protection licence condition in the Bartter Enterprises proceedings is in the same terms as condition O2.1 of Sydney Water's EPL (earlier reproduced).
In light of the fact that her Honour's decision in Bartter (No 3) had been cited during the course of submissions on behalf of Sydney Water during the trial (including the submission that Duggan J "was clearly wrong"), I felt it appropriate to provide the parties the opportunity to make submissions on what relevance, if any, the decision of the Court of Criminal Appeal in Bartter CCA had for the purposes of my consideration of the charges against Sydney Water. I had my Associate contact the parties concerning this and, as a result, the parties agreed on a timetable that would permit, first, the Prosecutor to make short written submissions concerning the decision in Bartter CCA, with Sydney Water having an opportunity to respond to those submissions. Both the Prosecutor and Sydney Water provided submissions concerning the decision of the Court of Criminal Appeal and, to the extent necessary, they are addressed below in the context of both the rising main and the valve charges.
The Prosecutor submitted that the decision in Bartter CCA is relevant to both the valve offence and the rising main offence in these proceedings.
For Sydney Water, the position is advanced that Bartter CCA has little to no relevance for the rising main offence (given the difference in wording between the Bartter Enterprises proceedings condition O2.1 and Limit Condition L1.3 in these proceedings for the rising main offence) and that, although the Bartter proceedings' condition and the condition engaged here for the valve offence proceedings are in identical terms, the relevant factual circumstances are different so that the decision in Bartter CCA is not relevant for my consideration of the valve offence charge.
Part of the argument in Bartter (No 3) was whether the equipment (known as the southern circuit) from which a piece had been removed and not refitted should be regarded as a single integrated piece of equipment or as a series of individual pipes and valves, each of which was to be regarded separately as an item of plant and equipment. On the basis of the latter proposition, Bartter Enterprises had submitted that the failure to reinstall the existing element whose absence had led to the escape of the ammonia did not give rise to the availability of a charge of failing to maintain the plant because there was no defect in any of the elements of the plant that remained installed at the time of the escape of the ammonia.
It was in this context that Duggan J (at first instance) and Basten JA (on appeal) dealt with the southern circuit as a single coherent but relevantly incomplete piece of equipment giving rise to the charge laid against Bartter Enterprises. It was in that confined context that Basten JA, at [25], made the comments relied on here by the Prosecutor that there is no "bright" line between the two elements of condition O2.1 of Bartter Enterprises' EPL.

[42]

Duggan J's decision in Bartter (No 3)

In Bartter (No 3), Duggan J addressed the approach to be taken to interpreting condition O2.1, in the factual circumstances there engaged, at [40] to [48], in the following terms: 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.
It is to be noted that, in Environment Protection Authority v Charlotte Pass Snow Resort Pty Ltd [2021] NSWLEC 37, at [121], Pepper J endorsed and adopted the above passage from Duggan J's decision in Bartter (No 3).

[43]

The decision of the Court of Criminal Appeal

In Bartter CCA, the Court of Criminal Appeal dismissed Bartter Enterprises' appeal against her Honour's finding that the company was guilty of breaching condition O2.1 of that defendant's EPL (Basten JA writing the leading judgment; Davies J agreeing with additional remarks; Dhanji J agreeing with both).
At [25], Basten JA said, relevant to the circumstances here engaged for consideration: 25 It is evident that there is no bright line to be drawn between the circumstances in which par (a) may be engaged and those in which par (b) may be engaged. That is, the manner of operation of the plant must be assessed in relation to its condition, which may, in turn, be dependent upon the way in which the plant is expected to be operated.
However, at [30], Basten JA also said: 30 … the character of the condition of the plant depended upon the function it was serving at a particular time. Indeed, there is an easy assumption that, because a particular state of a part of the plant led to a discharge, the plant was not maintained in a proper condition. As noted above, the proper condition of the plant depended on its use at a particular time.
Davies J, in his additional concurring remarks, at [36] and [37], said: 36 The relevant plant and equipment referred to in the licence was the blast freezer and the ammonia refrigeration system. That system had to be viewed as a whole, both because of what it was designed to achieve and for the possible environmental consequences arising from it, either from a failure to maintain it or to operate it in a proper and efficient manner. As the trial judge correctly said, the Southern Circuit was an integrated system relying upon a series of valves and pipes to allow the function of refrigeration of the building whilst containing the refrigerant (ammonia) within that circuit. Her Honour, correctly in my opinion, went on to say: 61 …To view the individual elements of that circuit, valve by valve and pipe by pipe, is inappropriate when the plant operates as a circuit and each element performs part only of the function for which the circuit was designed. This is not a case where a single isolated piece of plant is able to operate, in isolation, in order to achieve the design purpose. This clear design interdependence between the composite parts in this case has the consequence that the Southern Circuit as a whole must be considered as the relevant plant for the purposes of condition O2.1(a). To consider the plant as separate components would fail to recognise that the independent parts cannot achieve the design purpose of the plant as an individual element. Each component part has a role to play in achieving the design purpose and therefore must be treated as parts of a single integrated whole. 37 Once it is accepted, as it must be, that the plant and equipment was the whole system, the conclusion is inevitable that there was a failure to maintain the plant and equipment in a proper and efficient condition, for the reasons more particularly explained by Basten JA.

[44]

The Prosecutor's submissions

On 4 March 2022, the Prosecutor provided short written submissions outlining how the Prosecutor proposed that I should have regard to the decision in the Bartter appeal. It is appropriate to reproduce those submissions in full (footnotes omitted): Introduction 1. These submissions are made pursuant to a grant of leave on 3 March 2022 to make supplementary submissions following the decision of the Court of Criminal Appeal in Bartter Enterprises Pty Ltd v Environment Protection Authority [2022] NSWCCA 43 (Bartter v EPA). (In that case, the leading judgment was by Basten JA, with whom both Davies and Dhanji JJ relevantly agreed.) Proceedings 2020/11340 - 'the rising main offence' 2. In these proceedings, the Defendant raises a defence under s 122 Protection of the Environment Operations Act 1997 (POEO Act). The Defendant contends that licence condition L1.3 was not breached during the events the subject of the offence charged. The Defendant has acknowledged: "L1.3 does not permit the pollution of waters from an uncontrolled dry weather overflow if a cause of the pollution is failure to, relevantly, "maintain any part of the reticulation system in a proper and efficient condition"." 3. Relying upon its submissions made in proceedings 2020/11340 in respect of "the rising main offence", the Defendant submits: "the Rising Main was, for the purposes of condition L1.3, maintained in a proper and efficient manner." (scil condition) 4. In its written and oral submissions, the Defendant invited this Court to reject the Prosecutor's reliance on the approach taken by Duggan J in EPA v Bartter Enterprises Pty Ltd (No 3) [2020] NSWLEC 114 (Bartter (No 3)) as plainly wrong. 5. In Bartter v EPA, the Court of Criminal Appeal endorsed the approach taken by Duggan J in the hearing in this Court to the construction of licence condition O2.1(a). The counterpart licence condition in that case, also numbered O2.1(a), was in identical terms to condition O2.1(a) in this case and in relevantly very similar terms to condition L1.3 in this case. In Bartter v EPA, in its context, condition O2.1(a) provided: "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." 6. The terms of licence condition L1.3 in this case are set out in the Prosecutor's Written Closing Submissions (PWCS) at [18]. 7. The Court's attention is drawn to Bartter v EPA at [25]-[31]. In particular, the Prosecutor relies upon Basten JA's approach at [27]-[28]: "[C]onsistently with Genkem, the question was whether the plant was maintained in a condition which would minimise possible environmental consequences. One harmful environmental consequence which came to pass was the release of ammonia gas. As the trial judge reasoned, the plant was not in a condition to prevent the release of gas at the relevant time. The events in question demonstrated that fact. Gas was released into the pipe- circuit at a time when it was not maintained in a condition to retain gas. If the offence depended on a finding of fault by one person or another, there may have been difficult factual questions to be resolved; however, the offence did not involve such a finding". 8. This Court is bound to follow Bartter v EPA. It must reject the Defendant's submission that Duggan J's approach in Bartter (No 3) was plainly wrong. 9. Adapting Basten JA's approach to this case, the question is whether the rising main was maintained in a condition which would minimise possible environmental consequences. One harmful environmental consequence which came to pass was the release of untreated sewage. The rising main was not in a condition to prevent the release of untreated sewage at the relevant time. This was an agreed fact and the events in question demonstrated that fact. Untreated sewage was released into the rising main at a time when it was not maintained in a condition to retain untreated sewage. 10. As a result, the untreated sewage was discharged from the rising main into the environment and polluted the waters of Prospect Creek. It follows that a cause of the pollution was the failure to maintain a part of the reticulation system, namely the rising main, in a proper and efficient condition in breach of condition L1.3. The defence under s 122 POEO Act is therefore not available to the Defendant in respect of the Rising Main Offence. Proceedings 2020/11342 - 'the isolation valve offence' 11. In these proceedings the charge was of a contravention of s 64 POEO Act by reason of a breach of licence condition O2.1(a). The terms of this condition were identical to those of the same numbered condition in the licence in Bartter v EPA. 12. In its closing submissions, the Defendant submits: (a) that condition O2.1 "contains two potential different offences" - failure to maintain in a proper and efficient condition, and failure to operate in a proper and efficient manner" (emphasis added); (b) that the Court cannot be satisfied that the reason the isolation valve at SP 187 was not opened was not operator error; and (c) that the Prosecutor charged a breach of the wrong sub-condition. 13. The Prosecutor submits that the relevant witnesses were not challenged in their claimed inability to operate the valve - "operator error" - on the day in question and that there is a body of other evidence that the valve was unable to be operated and therefore had not been maintained in a proper and efficient condition. 14. When the Appellant in Bartter v EPA made the argument that it had been charged with breach of the wrong sub-condition in the hearing in this Court it was rejected by Duggan J as being a distraction from the question of whether there had been a breach of condition O2.1(a). The argument was also rejected in the Court of Criminal Appeal. Basten JA said at [25]: "It is evident that there is no bright line to be drawn between the circumstances in which par (a) may be engaged and those in which par (b) may be engaged. That is, the manner of operation of the plant must be assessed in relation to its condition, which may, in turn, be dependent upon the way in which the plant is expected to be operated. Further, par (a) refers to maintaining the plant in a particular condition, rather than carrying out maintenance work on the plant. That is consistent with the purpose of the licence which is to protect the environment from harm. Risks may inhere in plant and equipment whether or not it is in active operation. Faulty electrical wiring, for example, may pose a risk of fire even if the plant is not in use. If a fire breaks out during the operation of the plant, for example when a switch is operated, it may be possible to characterise the cause of the fire as an act undertaken in the operation of the plant, but the cause is also the faulty condition of the electrical system." 15. It is submitted that this Court should apply those observations from Bartter v EPA. 16. Applying Basten JA's approach to this case, the question is whether the isolation valve was maintained in a condition which would minimise possible environmental consequences. One harmful environmental consequence which came to pass was the release of untreated sewage from SP 187 into the main that led to SP 213 at a time when SP 213 was unable to accommodate that untreated sewage without a discharge into the environment. The valve was not in a condition to redirect flows from SP 187 away from SP 213 and thereby prevent or limit the release of untreated sewage from SP 213. The events in question demonstrated that fact.

[45]

Sydney Water's submissions

Written submissions on behalf of Sydney Water in response to those reproduced above from the Prosecutor were subsequently filed. It is appropriate to reproduce the terms of those submissions in full (footnotes omitted): 1. Further submissions are made on behalf of Sydney Water in light of the recent decision by the Court of Criminal Appeal in Bartter Enterprises Pty Ltd v Environment Protection Authority [2022] NSWCCA 43 handed down on 2 March 2022. This decision is submitted by the prosecutor to have relevance to the rising main charge and the valve charge. Proceedings 2020/11340 - The rising main 2. The CCA decision in Bartter does not change the following two matters in relation to which detailed submissions have already been made: (1) The Prosecutor's erroneous approach to L1.3 and O2.1 (see Sydney Water's Closing Submissions at [72]-[80]). (2) That Bartter is distinguishable and so provides no assistance in relation to a L1.3, s 122 defence (as opposed to an O2.1, s 64 offence). 3. The only thing that has changed is that the decision is now a decision of the Court of Criminal Appeal and so potentially binding. Nevertheless, Bartter remains distinguishable and of no assistance. Indeed, if anything, Basten JA's concern about context (at [23]) further highlights the differences between the offence, facts and circumstances in Bartter and these proceedings. 4. Fundamental differences remain: ● Bartter was a breach of licence offence, Sydney Water relies upon a pollute waters defence. That is both the statutory basis (s 64 vs s 120) and the nature (offence vs defence) are different. ● The proceedings involved different conditions: L1.3 vs O2.1. ● Although the language in those conditions is similar, it is not the same. ● Each condition must be considered within its own context (Basten JA[23] and Sydney Water submissions at [82]-[94]). ● The approach to the protection of the environment, and the subsequent construction of the licence conditions, is materially different (see Sydney Water submissions at [17]-[21], [82]-[94]). 5. Finally, nothing changes the - plainly wrong it is submitted - consequentialist logic of the Prosecutor already criticised at [79]-[81]. Indeed, if anything, the decision in Bartter highlights the necessary difference in approach to the s 64 offence provision compared to the s 122 defence. 6. If Bartter is to be applied, as the Prosecutor would appear to suggest, the fact of a pollution event means that there was a relevant failure to maintain. Obviously, that cannot be applied to the s 122/L1.7 defence. If it were, the condition, and the defence, would have no work to do. Proceedings 2020/11342 - The valve 7. Again, Bartter in the CCA provides no assistance to the Prosecutor. 8. The fundamental distinction between Bartter and these proceedings is that in Bartter the Prosecutor was able to establish, and the Defendant accepted, the facts that gave rise to the offence: see Bartter CCA at [10] and [28]. 9. Sydney Water does not accept that the plant and equipment was not maintained in a proper and efficient manner. The Prosecutor therefore took on that burden and failed (see Sydney Water's Closing Submissions at [276]- [278]). Evidence the valve was operational 10. The Defendant's submissions made reference to the evidence before the Court of the recent use of the valve: at [296]- [300]. 11. The Court had evidence that the valve had been operated successfully in 2017: at [296] and 2018: at [297]. There was also evidence that the valve was opened when it was inspected for the purposes of preparing a report in August 2019: at [298]. It was Mr Kelly's evidence that (following its removal) the valve at that time was open (ie it had been opened) but was unable to be closed and the possible explanations for that were explored with him: at [300]. 12. Dr Marten's gave evidence that valve 1 was (contrary to Mr Aquilina's evidence) open at the time of the pollution event: at [302]. 13. That, it was submitted, gave rise to the inference of operator error on the part of Mr Aquilina who said he had been unable to operate (ie open) either valve: at [303]. 14. At [14] of the Prosecutor's Supplementary Submissions, comfort appears to be drawn from Duggan J's description of the difference between the two offences as a "distraction". To similar effect, Basten JAnotes there is "no bright line" between them (Prosecutor's Submissions at [14] and Basten JAat [25]). 15. There is little comfort for the Prosecutor in Bartter. The Prosecution cannot establish beyond reasonable doubt that valve 2 was not operable and had not been maintained in a proper and efficient condition at the relevant time. That is due to the inference that, having been operational both before and after the incident, it was Mr Aquilina who was unable to operate the valve. 16. While this might be said to raise the issue of the 'correct charge', the defendant's position is that the Prosecution has failed to establish that there has been a failure of the "plant and equipment" in the form of valve 2. Unlike the case in Bartter (at [28]), Sydney Water does not accept that the condition of the valve was ineffective for containing pollution 17. The question of "whether the plant was maintained in a condition which would minimise possible environmental consequences": see Bartter at [27] does not arise where, as here, the Prosecution cannot establish beyond reasonable doubt that the condition of the valve was ineffective for containing the pollution.

[46]

Consideration of Bartter CCA

As a consequence of the decision of the Court of Appeal upholding Duggan J's decision, the submission made on behalf of Sydney Water that Duggan J's decision was clearly wrong is to be ignored. However, it is necessary that I address the proposition that Duggan J's decision (and its affirmation on appeal) is to be distinguished in the present circumstances.
I have, earlier, cited the relevant paragraphs from Duggan J's decision in Bartter (No 3) setting out the terms of the charge that was the basis of the proceedings against Bartter Enterprises. It is now, in the present context, appropriate to set out the relevant charges laid against Sydney Water in the rising main proceedings and in the valve proceedings.
First, I set out the relevant terms of the charge (but not the supporting particulars) in the rising main proceedings. These are: From about 14 January 2019 to about 16 January 2019 inclusive, at or near the Southern Suburbs Sewage Treatment System reticulation system, including the 600mm pressurised rising main leading from sewage pumping station SP0213 at or near Waterside Crescent, Carramar, it committed an offence against section 120(1) of the POEOA in that it polluted waters.
Next, I set out the relevant terms of the charge (but not the supporting particulars) in the valve proceedings. These are: From about 14 January 2019 to about 16 January 2019 inclusive, at or near the Southern Suburbs Sewage Treatment System reticulation system (Premises), including the sewage pumping station SP0187 (Pumping Station) at or near Sussex Street, Cabramatta, in the State of New South Wales, it committed an offence against section 64(1) of the POEOA in that it was the holder of a licence, a condition of which was contravened by a person.
I turn, first, to the rising main charge proceedings. These proceedings arise in the context of a charge pursuant to s 120(1) of the POEO Act. A number of conditions of Sydney Water's EPL arise for consideration, notably Limit Conditions L1.3 and L7.4. The charge is not one laid pursuant to s 64 (1) of the POEO Act of failing to maintain the rising main in breach of condition O2.1 of Sydney Water's EPL. In particular, the terms of that condition in Sydney Water's EPL (although identical to the condition that gave rise to the Bartter Enterprises proceedings) is not expressly utilised as a foundation for the rising main charge. In addition, the terms of condition O2.1 of Sydney Water's EPL is not, in terms, replicated in the relevant elements of Limit Condition L1.3 as to the obligations that are placed on Sydney Water (although there is a general similarity between them).
I am satisfied that, for the reasons advanced by Sydney Water in its supplementary submissions concerning Bartter CCA, the question of the interoperability of Limit Conditions L1.3 and L7.4, in the context of a "pollute waters" charge and Sydney Water seeking to invoke the statutory defence provided for in s 122 at the POEO Act, means that the matters considered in, and the decision of, the Court of Criminal Appeal in the Bartter appeal do not give rise to matters which automatically operate to preclude the potential availability of the statutory defence sought to be invoked by Sydney Water for the rising main charge. In this instance, the detailed path sought to be traversed by Sydney Water through various conditions and definitions in its EPL to reach the s 122 defence require consideration - not automatic rejection.
With respect to the valve offence, it is to be noted that the Bartter Enterprises' proceedings arose in light of the consequences of the omission by Bartter Enterprises' contractor to reassemble the southern circuit so that the entirety of that circuit was installed in a fashion that would prevent any ammonia leakage from it. It is in that precise context that the remarks of Basten JA earlier set out about there being no "bright line" between condition O2.1(a) and O2.1(b) arose.
However, in this instance, the basis of the valve charge is not the absence of any piece of equipment which could cause any arguable breach of the obligations under each of the limbs of condition O2.1, but circumstances where there is no dispute that all the physically necessary parts of equipment (required to be utilised to divert portion of the effluent stream that would otherwise go to the Carramar pumping station to be able to be diverted to the Liverpool Treatment Plant) were all in position.
The Prosecutor has elected, on the basis of the evidence adduced by Mr Aquilina and Mr Saad, to proceed on a charge specifically pleaded as founded on the first limb of condition O2.1.
Sydney Water defends itself from that accusation on the basis that the system necessary to divert effluent to the Liverpool Treatment Plant was complete, not relevantly defective and, on the evidence of Mr Kelly, was capable of being operated so as to effect the outcome which Mr Ke had directed Mr Aquilina to effect.
The defect, on Sydney Water's case as later examined in detail, is that Mr Aquilina failed to operate the valve, which was a valve capable of being operated, to the desired outcome, and thus the failure was one of operation rather than of some defect in the equipment itself.
For the facts and circumstances in the Bartter proceedings to have been analogous, it would have been necessary for the whole of the southern circuit to have been reinstalled but for the ammonia escape to have arisen as a consequence of some specific failure to operate those valves and pipes comprising the southern circuit in a fashion which would have prevented the ammonia from escaping.
That was not what had arisen in Bartter and the significant difference in the facts between those proceedings and the circumstances requiring consideration in the valve offence means that, in my opinion, any matter of principle capable of being derived from the decision of the Court of Criminal Appeal in Bartter appeal has no applicability when applied to the facts applicable to the valve offence with which Sydney Water is charged.
Consistent with the quoted remarks of Basten JA and Davies J in the Bartter CCA judgment, it can be seen that, at the time Mr Aquilina attempted to operate the valves, the critical valve was performing the function which it was intended to perform in the state that it was then in (that is, not diverting effluent to the Liverpool Treatment Plant).
However, the evidence of Mr Kelly demonstrates that, had Mr Aquilina correctly engaged the valve key and attempted to alter the status of the valve so that it did divert effluent to the Liverpool Treatment Plant, the valve could have operated to achieve that outcome.
This failure is, for the reasons explained in detail below in my detailed assessment of the factual position requiring consideration for the valve charge, completely different to that which was addressed at first instance and on appeal in the Bartter Enterprises' proceedings.

[47]

Introduction

As earlier set out, the valve charge brought against Sydney Water concerned its alleged failure to maintain a valve that formed an element of Sydney Water's structures for their wastewater system. This valve was in the vicinity of sewage pumping station SP0187. The inability to operate this valve (to divert sewage from the pumping station on the site to the Liverpool Treatment Plant) resulted in the filling of the wet well in sewage pumping station SP0213 and its overflow into the nearby Prospect Creek (thus giving rise to the pumping station "pollute waters" charge). The overflow resulted from the inability for the implemented tanker pump‑out and removal process to keep pace with the sewage inflow into the wet well of SP0213.
As was earlier set out in the details of the charge alleging a breach of condition O.2.1(a) of Sydney Water's EPL, the charge concerning the valve finds its foundation in the fact that, on the morning of the incident in January 2019, two employees of a contractor engaged by Sydney Water (Mr Aquilina and Mr Saad) were despatched to operate a valve in the immediate vicinity of SP0187.
The statutory basis for this charge is s 64(1) of the POEO Act. It is unnecessary to repeat, here, the terms of this provision. However, it is appropriate to repeat the terms of condition O2.1 of Sydney Water's EPL, as this condition contains two separate and different elements, each of which provide a potential basis for the foundation of a charge of breaching s 64(1) of the POEO Act. The condition is in the following terms: 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
As can be seen from the charge and its supporting particulars for the valve offence (set out earlier), the valve charge alleges that the inability of Mr Aquilina to be able to operate the valve in the vicinity of SP0187 arose as a consequence of Sydney Water breaching the first of the two limbs of condition O2.1 of its EPL - in that the inability of Mr Aquilina to be able to operate the valve on the night of the incident was as a result of the failure of Sydney Water to maintain the valve in a proper and efficient condition.
Sydney Water's defence does not seek to deny that the fact that the valve was not operated by Mr Aquilina as instructed and that this denied Sydney Water the operational ability to divert sewage flow at SP0187 away from sewage pumping station SP0213 and toward the Liverpool Sewage Treatment Plant, thus reducing the volume of sewage reaching pumping station SP0213 and discharging into Prospect Creek from the overflow pipe from that pumping station.
Sydney Water does not deny that the valve, the subject of this charge, was not operated in a fashion which would have provided this operational benefit. Sydney Water's response, however, is that a proper understanding of the evidence concerning the attempted operation of this valve discloses that the Prosecutor has not proved beyond reasonable doubt that it was the condition of the valve that prevented its use to obtain the intended environmental benefit sought but that: 1. Mr Aquilina, in his attempts to operate the valve, may have failed to do so in a fashion which was a breach of the second limb of condition O2.1 of its EPL; 2. Such a failure by Mr Aquilina (if proved) could have given rise to Sydney Water being charged with a different offence against s 64(1) of the POEO Act; 3. The Prosecutor had not charged Sydney Water with that potentially available offence; and 4. Sydney Water should be acquitted of the valve offence as actually charged because the offence charged had not been proved beyond reasonable doubt.
In order to understand this "wrong charge" defence advanced for Sydney Water, it is necessary to consider: 1. The evidence of what took place, relevantly, on 15 January 2019 as it concerns the valve the subject of the charge; 2. The evidence concerning the history of operation of the valve prior to the incident; 3. The evidence concerning the removal of the valve and its examination in August/September 2019; 4. The submissions advanced by the Prosecutor as to how this evidence is to be understood as supporting the charge laid by the Prosecutor concerning the valve; and 5. The submissions advanced on behalf of Sydney Water that a proper understanding of the evidence should lead to the "wrong charge" conclusion.
Consideration of all of these matters will permit a conclusion to be drawn as to whether or not Sydney Water is guilty of the valve charge as laid by the Prosecutor.

[49]

The pre‑trial circumstances of Mr Aquilina's evidence

Sydney Water's written submissions, at paragraphs 280 to 287, criticised the process by which Mr Aquilina's evidence for the trial had been prepared. It is appropriate to set out the terms of these paragraphs in full. They read: 280. There are a number of problems with Mr Aquilina's evidence. The first is in relation to the way the evidence was first obtained, and disclosed, by the Prosecutor. The second is then with the evidence itself. The third is that, taken at its highest, it demonstrates operator error only. 281. The circumstances surrounding the interviewing and preparation of Mr Aquilina's evidence is a matter of some concern. The Prosecutor provides a Record of Interview of Mr Aquilina for an interview made on 4 March 2020. 282. At that interview the Prosecutor was able to provide Mr Aquilina with a draft affidavit (see questions 32-36). That draft affidavit had been able to be prepared because there had been an earlier interview in 2019. 283. According to Mr Aquilina that earlier interview had been recorded. No record, or transcript, of that interview has ever been provided to the Defendant. 284. Although that draft affidavit was expressed by Mr Aquilina to accurately reflect his recollections of the earlier conversation, clearly they do not. At A33.001.035 in paragraphs [11], [13], [17] and [18] Mr Aquilina is referring to Mr Aquilina. In the Defendant's submission, that is not a mere typographical error. The importance of the error is that Mr Aquilina clearly did not, at the time of the second interview, pay adequate, if any, regard to the text of the draft. 285. The importance of that, and the failure to provide any transcript of the original interview, is that it is at paragraph [11] of the draft affidavit that Mr Aquilina is recorded as saying "attempts to open or close the valve did not appear to be working and that the wheel was just spinning freely either way." 286. The reference to "the wheel" raises questions of uncertainty. The valve was not one operated by a wheel (although some valves are operated by wheels)134. The second is the reference to the fact that the wheel was "just spinning freely". That raises questions of uncertainty because in answer to question 95135 Mr Aquilina states that "I think they were seized from memory". 287. This answer raises two matters. Firstly, the reference to "they" suggesting - as he ultimately conceded - that he attempted to operate both valves at SP 187. Secondly, his recollection as first recorded in the transcript was that the valves were "seized". Mr Aquilina was asked in cross‑examination whether that was the correct recollection. He agreed that was the correct recollection. Further uncertainty therefore arises where there is: • a draft affidavit prepared, apparently, by reference to a recorded interview where transcript is not provided where the "wheel was spinning freely" • a second interview where the valves were seized; followed by • his final affidavit at paragraph [14] where the language returns to "the wheel was just spinning freely".
I address this criticism later.

[50]

Mr Aquilina's evidence

Mr Aquilina described, in his affidavit of 3 August 2021 (Document A33.001), what had occurred when he and Mr Saad had been instructed to attend pumping station SP0187 and operate the valve in order to divert effluent to the Liverpool Treatment Plant and thus limit the inflow of sewage into sewage pumping station SP0213. Doing this would assist in enabling work to be undertaken on the rising main that had failed.
The relevant paragraph of his affidavit, paragraph 14, is in the following terms: 14. About 9.30am, I left the site and travelled a short distance by car with Mr Saad to SP0187. When we arrived at SP0187, we confirmed the location of the isolation value, underneath a hatch cover next to the pumping station's main building. I opened the hatch cover and use a valve key tool to attempt to open the valve. I attempted to open or close the valve, but this did not appear to work, and the wheel was just spinning freely either way. I saw that there appeared to be no signs of damage or corrosion to the valve or wheel or reason for the fault. I continued to try and open the valve for about 5 to 10 minutes. I understood that there were no alternative options or tools available to Mr Aquilina [sic] and I to use to open or fix the isolation valve.
As can be seen from the inadvertent non‑correction of the second‑last line, this paragraph is otherwise in identical terms to paragraph 13 of Mr Saad's affidavit set out later. Nothing turns on this.
On 4 March 2020, Mr Aquilina had been interviewed by officers of the Prosecutor, with a transcript of this interview being attached to his affidavit. The relevant questions and answers from this transcript are reproduced below: Q 125: - - - to 187? A 125: …. So, 187 has a bypass valve which was shut at the time so we could divert flow to that station instead of running - instead of sewer running to 213. So, we could shut 213 down which would have stopped it - if I'm correct. But at the time we arrived on site, I hadn't worked on the valves myself in the past. We opened up the covers, put the valves key on, tried to operate - it was spinning freely. At that time I assumed that was - they were either snapped or they couldn't operate. …. Q 130: Can you describe what the valve key is that you've used? A 130: So, the valve key is - it's pretty much just solid piece of stainless. It's got a attachment on the - the bottom of it, and it's just a T-piece. So, like, they help open and close valves, so - that's all it does, really. Q 131: All right. And can you describe when you attempted to open the valve, the observations that it was not working properly? A 131: So, usually we know if they're - sometimes the valves are stiff but we can get them - like, free. But, at the time, it was just spinning freely. So, it was pretty much just - yeah, you could spin it with one hand. Usually they're not like that. They take a bit of force to open and close them. Q 132: Yep. A 132: So, for about five to ten minutes I was just spinning the valve freely to see if it was actually - what was going on with it. And at that time we knew it wasn't operating. …. Q 143: - - - (indistinct). Okay. You said you've been - it was free spinning, you attempted to open it for 15, 20 minutes - sorry, 10, 15 minutes? A 143: Five to ten minutes. Q 144: Five to ten minutes? A 144: Yeah. …. Q 151: So, in effect, rather than being an alternative method, in - in this case I understand because it was free spinning - - - A 151: Yeah. Q 152: - - - and is free spinning another, say - like a threaded nut? A 152: Yeah. Q 153: Okay - - - A 153: So - - - Q 154: - - - and that valve actuator would not have - - - A 154: Would have helped, no. Q 155: - - - assisted and actually opening it? It just would have kept spinning? A 155: Yeah.
Mr Hemmings cross‑examined Mr Aquilina concerning his recollection of his experience with the valve on the evening of the incident. It is not necessary to reproduce, for present purposes, the entirety of the transcript of this cross‑examination.
The first of the relevant passages, in my assessment, is in the following terms (Transcript 31 August 2021, page 86, lines 23 to 36) - starting with a question to Mr Aquilina concerning a question and answer in the record of his March 2020 interview by officers of the Prosecutor: MR HEMMINGS: And over the page [in his ROI] you tell us, "A. Yep, at the time that was it, what was happening. Q. Yep. Were you provided with any instructions or directions from Zane? A. Yeah, we were advised by him to go check this SPS187. There was bypass valve at the time. So we travelled over there to see if they'd operate. Yeah, they didn't. I think they were seized from memory." That was your recollection. Was that right? That you tried to operate the valves. That you travelled to SP187, you tried to operate valves and to the best of your recollection they were seized. A. Yes, that's correct. Q. Going down to question 120 for me, if you would. Before I ask about question 120, in that question and answer to question 95 that we were just looking at and to the best of your recollection the valve was seized. A. Yep. Q. To the best of your recollection, was that the same answer you would've given to the EPA in the 2019 interview? A. Yeah, I think from memory that was right.
The second of the relevant passages (objections omitted), in my assessment, is in the following terms (Transcript 31 August 2021, page 88, line 22 to page 90, line 29 ): Q. But you say that what was e‑mailed to you were drawings where the valves were located, but in an answer you gave to me a moment ago it was a schematic diagram, the arrangement of SP187 and its valves, is that right? A. Yes, which if you look on it, they're drawings of it. Q. So they're schematics, they show the way in which‑‑ A. They show how the station's outlaid. Q. But they're not attempting to show the relationship of the station to how it appears on the ground, are they? A. No, it's like a overview of the..(not transcribable).. Q. It's showing directions of flows and what valves are doing and which ones are kept closed and which ones are kept open and where a reflux valve is and that sort of thing? A. That's correct. Q. It's not actually showing the physical - if you were to take a schematic and go to the site and try to compare the schematic to what you see on the ground, it's not showing you what's on the ground? A. No, they give you a rough idea to where they are. Q. Okay, so you then went to the site. You hadn't been to the site before, had you? A. No‑‑ Q. You hadn't been to SP187 before? A. No, I've been there plenty of times, definitely at times. Q. Before the time you were sent out to the isolator valve? A. Yes, that's correct. Q. I'm sorry, that's my misunderstanding of the transcript then. You'd been there before but you hadn't operated the valve before? A. I - I hadn't operated that valve. Q. Right. Now, how many valves are there that have an appearance on the surface of the land? A. I don't really remember that, sorry. Q. So, as I understand it, and you're telling us this in paragraph - in answer to question 125 - actually, look at the answer to question 126, bottom of the page. When you go out to site, it's overgrown with grass? A. Yeah, so the bypass valve is outside of the station, if you know where the pumping station is. Everything's pretty much downstairs except a few valves. That valve was covered in grass, it's obviously overgrown, but there's a little hatch or little cover, so we lifted that up and that's probably - I think from memory - they were saying it's a metre or two underground. So you only got a spindle coming out of the ground. Q. So go back to the question and answer 125 for me, please - only some of this has been read, but you don't need to worry about that, but I'll just need be careful with asking you some questions about it. So about halfway through you say that, "At the time we arrived on site, I hadn't worked on the valves myself in the past." A. Well that - that valve specifically. Q. You say "valves". So it is correct, isn't it, that you had not worked on either of the valves yourself in the past? A. Well there was only one valve there. I - that - that was the only valve I worked on. Q. But there were two valves there. There were two valves, each having a cover, one which was the valve for the 600 mil and one which was the valve for the 450 mil. That's right, isn't it? A. Yeah, sorry. That's right, yeah. Q. So there were two valves under two different covers in the overgrown grass, correct? A. Yeah. Q. And you hadn't worked on either of them in the past before? A. No. Q. Did you find both covers when you went to the site? A. Yep. … Q. When you went to site, Mr Aquilina, it's correct, is it, that you found two covers? A. Yes. That's correct. Q. You opened both covers. A. Yep. Q. Did you try and operate those valves? A. Yes. Q. When you tried to operate both valves, both of them failed to operate and they were spinning freely? A. That's correct.
The third of the relevant passages (objections omitted), in my assessment, is in the following terms (Transcript 31 August 2021, page 92, lines 1 to 37): Q. You say in the fifth line, "The wheel was just spinning freely either way." Do you see that? A. Yes. Q. This might be just me not understanding the way the valve works, but I'm picturing when you say that, I've got a wheel sitting on top of the valve that I'm turning and it's spinning freely. A. It would have been the spindle arm I meant. Q. Right. A. So, because the valve is in the ground, so you've got a long shaft coming out and we would have sat our valve key on top and tried to spin it left or right and..(not transcribable)..spinning freely. Q. Because there are some valves, of course, at the -- A. At - at some sites, yes, that's correct, they got - they got -- Q. Some have a wheel on them. A. That's correct. Yes. But this one didn't because it was in the ground. … Q. The valve key tool that you used, Mr Aquilina, where do you get that from? A. That's in our utes. So we're given it to, like - we're given them - we're given them from Sydney Water, if that makes sense
The fourth of the relevant passages (objections omitted), in my assessment, is in the following terms (Transcript 31 August 2021, page 93, lines 8 to 35): Q. You then went to 187. A. Yes. Q. You'd been to 187 before but you'd never operated either of the two external valves before. A. Yes. That's correct. Q. The external balance were both below the ground - I'll do this in pieces. Both external valves were below the ground. A. Yeah. Q. They had covers at the surface. A. Yeah. Q. But the covers were covered by overgrown grass. A. That's correct. Yes. Q. But you discovered both covers. A. Yeah. Q. You then tried to operate both valves. A. Yes. Q. You couldn't operate either of the valves. That's right? A. Yes. That's correct. Q. That was because both of the valves were spinning freely. A. Yeah
The Prosecutor re‑examined Mr Aquilina. The first relevant element of the re‑examination was in the following terms (Transcript 31 August 2021, page 93, line 39 to page 94, line 47): Q. Can I just ask you about that last answer that you gave? The question was, "Because both valves were spinning freely." What was it that was spinning freely? A. It would have been the spindle. So the way the valve works, because it was in the ground, they have a steel spindle coming out. So that would have been spinning freely. Q. Can I ask you to describe the valve key. A. That's just a T. So it's a T piece, probably a metre and a half long. Half a metre wide. It's just got two handles on it and it's got a little cut out in the bottom that sits on top of the spindle. Q. And when you say "cut out", could that be described as a socket? A. Yeah, similar to a socket. So it's - it's slots on top of the - the spindles or valves itself. Q. Can you remember how far below the surface of the ground the socket went? A. No, I - it would - it pretty much just sits there. Like as soon as you open up the little cover, it's there. Q. What is just there? A. The spindle itself. Q. On this occasion, could you see the spindle in each - underneath the covers, once you'd opened the covers, for each valve? A. Yes, that's correct. Q. Can I ask you just to go back now a couple of questions, you said that there were two values and you gave descriptions of them with numbers. What were those numbers relating to? A. The - where are abouts you are looking at this? Q. No, well don't worry about I've got in front of me. You used one number 450. A. That's the - that's the size of the valve itself. So I think from memory it was a 450 size and a 600. That's the - sorry, that's the incoming pipe which has a 600 valve on it, or a 450 valve on it. Q. How far away from each other were the two valves? A. I couldn't tell you that, mate, to be honest. They're buried in the ground. Q. How far away were the two places you went to, to operate them? A. They were side by side. It's over two years ago, I haven't been to that station since. Q. Now, did you know when you were operating or trying to, which valve was which? Which was for the 450, and which was for the 600? A. From memory, yes. Because of Q. How - I'm sorry I interrupted you, what did you say? A. Well, from memory, yes. Because on the schematics it - you can - you got a rough idea which one's which. So if you're standing at the front of a station there's a valve on the left, and it says 600 or, valve 1, for example, that could be the one. And on the right valve 2. That make sense? Q. According to your memory of the schematic, the two valves were marked differently from each other? A. Yes.
The second relevant element of his re‑examination (Mr Aquilina being shown the schematic reproduced at the conclusion of the SOAF and irrelevant interruptions omitted) was in the following terms (Transcript 31 August 2021, page 95, lines 35 to page 96, line 50): Q. Can you see that Mr Aquilina? A. Yep, that's correct. Q. Do you recognise it? Don't worry about appendix A at the top. I'm talking about what's inside the dotted lines. Or was it different? A. Yeah, I can recognise it. Q. Was that the schematic you were shown? A. Sorry, mate? Q. Is that the schematic that you received from Mr Ke? A. No. Q. Fair enough. Thank you. A. There would have been more - something similar, yes, but there would have been more on the actual schematic itself. Q. Thank you. When you say you tried to operate both valves but failed to operate them because they were both spinning free‑‑ A. Yep. Q. Did you use the valve key, the same valve key, to do this in respect of both valves? A. That's correct, yes. Q. Can I ask you to tell us about the valve key that you kept in the ute. A. What do you want to know? Q. Well, is that - I'm going to use the word generic. Is that a generic valve key? Is it used for all sorts of valves, or is it just for this valve? A. No, it's used for multiple valves. … Q. Were you provided on the day you went out to 187 with anything other than the schematic in order to operate this valve that you were asked to operate? A. No.

[52]

Mr Kelly's evidence

Mr Kelly provided an affidavit dated 3 August 2021. Paragraphs 5 and 6 of that affidavit were in the following terms: 5. In October 2019, I conducted an inspection of an isolation valve located near sewage pumping station SPS0187, with Mr Joel Scott of Sydney Water Corporation. 6. I then prepared a draft report entitled "Ventia Mechanical Report SPS 0187 - Valve Preliminary inspection". …
The report is dated 17 October 2019 and is seven pages long. A copy of that report was annexed to Mr Kelly's affidavit. His inspection took place after the valve had been removed and taken to Sydney Water's Potts Hill depot.
The text of Mr Kelly's report was interspersed with a number of photographs of elements of the valve. It is reproduced below (with the image sizes reduced): 2. INITIAL INVESTIGATIONS Visual Inspection The valve was visually inspected. The outside shows no evidance [sic] of failure. Some rust is present, although the valve is still covered in dirt. The visual inspection of the inside of the valve revealed: ● The valve was in the open position when we inpsected [sic] it. ● A build up of rags has accumulated from the top of the valve body, originating from the top of the body guide area. ● The housing seal appears to be intact and not interfering with the operation of the gate. Operational check As the gate was closed the condition of the seal on the gate itself seems to be intact. The maximum we could close the valve was 31 turns. (Maximum close for a 450mm valve is 41 turns.) Once the valve reached 31 turns, the spindle began lifting from the bonnet of the valve. If we tried to close the valve further, the spindle kept lifting. This would indicate a failure in the spindle nut, or where the spindle attach's [sic] to the sliding gate. 3. FINDINGS lntial finding indicate the valve will close approximately 31 turns out of 41. This would not be enough to seal the valve. The failure is in either the spindle attachment to the gate or the spindle nut itself. (If rag was blocking the gate guide are [sic], as the gate closed the spindle would become hard to turn, and the gate would seal on the rags in the seal area.) This failure would mean the valve could not seal the flow no matter how hard the spindle was turned. To further detirmine [sic] the cause of failure, the valve would need to be cleaned and have the bonnet removed for internal inspection of the moving parts.
Mr Hemmings cross‑examined Mr Kelly on 31 August 2021. It is appropriate to reproduce the entirety of his cross‑examination. It was in the following terms (objections/interruptions omitted) (Transcript 31 August 2021, page 103, line 5 to page 107, line 37): Q. This is the valve that was removed from SP187, the photograph that we see at page 3, correct? A. Yes. Q. And it's the 450 mil - it's on about the 450 mil line, there were two lines as far as you're aware. One, a 600 mm rising main and one, a 450 mil rising? A. Yes. Q. So, this is the one that was removed from the 450 mil rising main, occasionally being called in these proceedings, but out of two? A. Mechanic. Q. You are also aware it was removed after there had been a pollution incident at SP213 in January 2019? A. Yes. Q. Are you aware that at the time of that incident, this valve was closed? A. No, I only saw the valve in the - it's right where you see the picture there, that's where I saw the valve. Q. So you don't know what its position was at the time it was in situ, you only know what it looked like once it was cut out and removed. A. Yes, as it's - as you see there, yeah. Q. You may well not be aware of this either then but let me ask it, were you aware that the valve had last been operated in October 2018? A. No, I wasn't. Q. Are you familiar with the arrangement generally of the pumping station SP187 and the two rising mains? A. Generally, yes. Q. I want to put a serious of propositions to you. In this valve, valve number 2, connected to the 450‑mill rising main that went to the Liverpool Sewerage Treatment Plant - actually, I might do this by putting a diagram in front of you. HEMMINGS: Can I ask the operator to please, appendix A in the statement of facts, so it's A17001 at p 014, could that please be brought up. Can you just enlarge that bit, thank you. Q. This is a schematic, Mr Kelly, obviously not diagrammatic, but this shows valve 2 as we are calling it, which is the valve that you were inspecting which is on the 450‑mill rising main to Liverpool Sewerage Treatment Plant. Do you see that? A. Yeah, I can see it. Q. Then valve 1, which was obviously 600 mil which feeds up to SP213. … Q. In order to remove valve 2, it was going to be necessary to bypass valve 1 and valve 2. Is that right? A. Yes, you would probably need to. Q. So you would make a connection between the wet‑well and the downstream size [side] of the stop valve in the 600‑mil rising main. A. Yes, you would have to go down the street, yes, yeah. Q. So that way you could close valve 1 of the rising main so that there was nothing flowing back to the wet‑well. A. Yes. Q. You would then be able to remove valve 2. A. Yes. Q. In order to remove valve 2, because it's connected to its own rising main, it was necessary to open valve 2. A. If that's what was needed to be done. I - I wasn't on site at the time. It's - I only inspected the valve. Q. When you did inspect the valve, we start to see some photographs. HEMMINGS: At p 3, if we can go back to his report, please, operator. Q. Then at page 3 of your report, you tell us you visually inspected it and the outside shows no evidence of failure, and that's in effect what you're showing in that first photograph. Is that right? A. Yes, that's the valve as we found it - was when we shown it. Q. It's in that location after it's been, if I understand the process, cut out with an angle grinder or something, and then craned out of the hole and transported to this location. A. Yes. Q. If you go over the page to page 4, I've got a photograph, and that's a photograph looking into the valve. Is that right? A. Yes, that is. Q. Keep that image in our mind but actually go to the next page, please. When I look at the photograph on the top of the page, I see something which looks about, sort of two thirds, or three quarters or a long way closed but not all the way closed. Is that the gate? A. Yes, that's the gate. Q. If I go back to the photograph on the previous page, this photograph has been taken at generally the same angle as the one we were just at. Is that right? A. Yes, it is. Q. What we don't see is we don't see the gate. A. That's correct. Q. If we look at the first bullet point on this page, we don't see the gate because the valve was in the open position. A. Yes, when I inspected it, that's what the position was in. Q. Someone had been able to open the valve. You don't know whether it was open before the valve was removed or after. A. No, I don't know. Q. We see some rags in that picture on page 4. A. Yes. Q. That's the clump, is it? A. Yes, it is. Q. If I go over the page again to page 5, you're telling me that as the gate was closed - so that's the thing we're seeing coming down in the top photograph - the condition the seal on the gate itself seemed to be intact‑‑ A. Yes. Q. ‑‑but it looks like it's starting to - at the bottom of the picture it's closing down on the rags, and on the top right‑hand side of that picture it looks like there's some rags in the gate. Would that be a correct description? A. Yes. Q. Then we get to the bottom photograph, if I look at the words in brackets firstly, it's a fact, is it, that for a 450‑mill valve, the maximum extent to which it can be closed is to turn the valve 41 times? A. That's correct. Q. Something was stopping this valve from turning 41 times. When you tried to close the valve, it could only be closed 31 times. A. Correct. HEMMINGS: Can I ask you to go to page 9, please. WITNESS: I only go to 7. Q. I'm sorry, I'm talking to the operator. Your page 6, I apologise, sir. A. Got it, yep. Q. Folio 9, your page 6. The fact that it could only turn 31 times instead of 41 would indicate a failure in the spindle nut, or where the spindle attached to the sliding gate. So you're suggesting two possible hypotheses for failure. Is that right? A. Possibilities, yes. Q. They are possibilities which demonstrate a failure which results in an inability to close the gap. A. Yes. Q. That failure wouldn't have existed if the gate could be closed. A. Yes. Q. I want to put an assumption to you for a moment. I want you to assume that on the date of the pollution event, the gate was closed. Can you assume that for me. A. Yeah, we can assume that, yeah. Q. When you saw it, it had been opened. A. Yes. Q. There was then a problem which demonstrated that for some reason it could no longer be closed. A. I'm led to believe that in the field. All I'm - as I said, all I saw was the valve and the paddock. Q. Can I suggest to you two possible reasons for the inability to close it more than 31 out of 41 turns. If I go to page 7 of the report, or folio 10, if the rags that we saw in the photographs were blocking the gate, is that a possible explanation as to why you could only turn the valve 31 out of 41 times because you couldn't get past the rags A. That would be correct. Q. I want to ask you another question based upon an assumption. I want you to assume for a moment that in order to remove the valve, it was necessary to dewater the 450‑mil rising main up to the Liverpool sewage treatment plant. I want you to assume that for me. A. Yeah, you would need to dewater it, yes. Q. To dewater it, someone would have needed to open the valve. A. Yes, they would need to open the valve, yeah. Q. When you open the valve, the effluent in the rising main comes down the rising main and through the valve, which is an open position. Yes? A. Yeah. Yes. Q. It could be that in that sewage that was coming down the rising main, that is where the rags came from that you found stuck in the valve when you found it in the open position? A. Quite possibly, yes. Q. Is another possibility that the failure that you've described as being in either the spindle attachment to the gate or the spindle nut itself, was caused by either the removal or the transport process? A. Potentially in the removal process, if they hit the machine, possibly. But there's no indication of any hit marks or anything on the valve. Q. So you think it's less likely, if you expressed it in that way, or even likely unlikely if you want to say - I'll let you choose the word, "less likely" or "unlikely" that the failure is in either the spindle attachment or the spindle nut itself was caused by the process of removal. A. Unlikely, yes. Q. When you were just speaking about being hit by the machine, you're talking about the fact that in order to remove it, the valve was underground, you need to excavate out and cut it out and then remove it. A. That's correct. Q. There's the possibility, but you haven't seen any evidence of it, that it was hit by the excavator when they were seeking to remove it. A. That's correct.
The Prosecutor did not re‑examine Mr Kelly.

[53]

The Prosecutor's submissions

The Prosecutor submitted the valve was incapable of completing its environmental protective function because if was incapable of diverting the inflow away from SP0213 and, thus, diverting the flow toward the Liverpool Treatment Plant.
The Prosecutor addressed the concept of "maintain in a proper and efficient condition" in relation to the valve; condition O2.1. He submitted that all licensed activities must comply with the condition O2.1. The valve offence centred around a failure of Sydney Water to maintain the valve in a proper and efficient manner because the valve was not useable at the time of the overflow event. The failure of the valve to divert sewage flow to the Liverpool Treatment Plant was submitted as proof that the valve was inoperable on the morning of 15 January 2019. The Prosecutor submitted that Bartter (No 3) would again apply in this instance and the Court would reach the conclusion the valve was not maintained in a proper and efficient manner and the valve could not perform its environmental protection function.
The Prosecutor identified the evidence that went to proving the valve was inoperable on 15 September 2019. One aspect of evidence that went against Sydney Water, in the Prosecutor's submission, was the fact that the valve key did not work for operating the valve. In 2017, the Defendant's records showed that a valve actuator truck had to be used to operate the valve through the application of high torque. In the months prior to the event, the subject of the offence, and again in September of 2019, the valve had to be operated with the use of a valve actuator truck. The necessity of high torque to attempt to operate the valve was suggestive that the spindle of the valve was held in position. The Prosecutor submitted Sydney Water had attempted to operate the valve to no effect, to which Sydney Water has admitted that the valve was broken, inoperable, and broken shut. I enquired of the Prosecutor if he thought subs 64(2) of the POEO Act shifted the burden of proof for the "wad of cloth" aspect of the defence, to which he responded in the affirmative.
The Prosecutor submitted that during 15 to 16 January 2019, Sydney Water attempted to stem the discharge from the overflow, but this was hampered by the isolation valve being inoperable. Had the valve been operable at the time of the event the flow into the pumping station and rising main could have been reduced. He submitted that the overflow occurred because of the inflow of sewage. The overflow ceased, according to Sydney Water, only when the tankers were able to deal with the inflow volume. Therefore, he submitted, the environmental protective function of the valve was compromised by the failure of Sydney Water to maintain the isolation valve in a proper and efficient condition. Its function was also compromised because it could not be operated manually, as was its design; this assertion had not been challenged by Sydney Water. Sydney Water's argument that the valve had been opened in October 2018 was submitted to be a bare assertion by the Prosecutor. However, the Court would not determine the valve to have been maintained in a proper and efficient condition by this assertion.
The Prosecutor relied on the uncontradicted evidence of Dr Martens that the isolation valve should have been inspected, tested, and maintained every six to 12 months. The Prosecutor submitted the Court would be satisfied, beyond a reasonable doubt, that Sydney Water breached condition O2.1(a) by failing to maintain the isolation valve in a proper and efficient condition and, through this failure to maintain, the isolation valve could not perform its environmental protective function.
The Prosecutor briefly addressed the defence of "mistake of fact" for this charge. The Prosecutor submitted that Sydney Water could not provide or prove the necessary state of mind, or the necessary belief, for Sydney Water to rely upon the defence of "mistake of fact".

[54]

The submissions for Sydney Water

Mr Hemmings submitted that the Prosecutor had not been successful in proving beyond reasonable doubt that the valve was inoperable.
It is to be noted that the written closing submissions of Sydney Water summarised, in paragraph 1, each of the separate and distinct bases upon which Sydney Water submitted that it was not guilty of each of the charges laid against it. With respect to the valve charge, this was summarised in the following terms: ● Valve 2 at SP 187: The Prosecutor says that Sydney Water breached condition O2.1 because valve 2 was not maintained in a proper and efficient condition. That alleged failure to maintain resulted in the isolation valve being inoperable from about 14 January 2019 to about 16 January 20191. The Prosecutor simply cannot establish beyond reasonable doubt that the valve was inoperable. At its highest, the evidence discloses that there was a failure to operate that valve by Mr Aquilina. Sydney Water has not been charged with that - different - offence that, if proved, would amount to a breach of licensed condition O2.1(b).
As can be seen, this is not an explicit statement proposing that, in absolute terms, Sydney Water had been charged with the wrong offence (of breaching condition O2.1(a) of its EPL), simply that the Prosecutor had not proved the charge that had been laid against Sydney Water beyond reasonable doubt.
Mr Hemmings addressed condition O2.1 as it applied to the valve offence. He identified that condition O2.1 had two offences in paragraphs (a) and (b), the former being the requirement to maintain in a proper and efficient condition the subject of the valve charge. The second potential charge, one to be founded on condition O2.1(b), was the requirement to operate the valve in a proper and efficient manner, not the subject of this charge. Mr Hemmings submitted that a failure to maintain was different from a failure to operate and the Prosecutor had, at most, provided evidence and submissions for the latter, which was not the charge brought against Sydney Water.
Mr Hemmings took me to Mr Aquilina's evidence. Mr Aquilina had made the statement that he had received a schematic by e‑mail, but the evidence provided by Mr Ke was that he had not e‑mailed anything to Mr Aquilina. Mr Aquilina said that he was unsuccessful in operating valve 2 (450 millimetre line); the spindle was "spinning freely". Mr Aquilina called Mr Ke to advise him of circumstances. Mr Hemmings submitted that only one conclusion could be determined from this information, the failure to operate valve 2 was operator error. Mr Hemmings continued, submitting that a finding that valve 2 was not maintained in a proper and efficient condition could not be proven beyond reasonable doubt. Mr Hemmings submitted that it was known the valve was operated in 2017, 2018, and 2019 (this latter occasion being after removal and during testing).
Mr Hemmings also submitted that it was known that valve 1 (600 millimetre line) could be operated because that valve had to be closed in order to remove valve 2; this could not support a finding beyond reasonable doubt that valve 2 had not been maintained in a proper and efficient condition when considered with the other evidence before the Court. Mr Hemmings submitted that the use of a valve actuator truck was not evidence of a failure to maintain and could not demonstrate beyond reasonable doubt that Sydney Water failed to maintain the valve, only that it was a tight valve. This fact could only lead to a conclusion that it took more than one individual to operate the valve, so a valve actuator truck was used.
The Prosecutor had submitted the valve failure had occurred after the pollution event and before its repair. The evidence from Mr Aquilina that the spindle was "spinning freely" suggests operator error as the only conclusion that could be reached, Mr Hemmings submitted.
Mr Hemmings turned to the issue of admissions. He submitted the probative value of Mr Aquilina's admissions could be not higher than his evidence. No higher admission could come from his admission than to identify operator error. Because there was no additional evidence led by the Prosecutor, the reliance on Mr Aquilina's admission to prove a failure to maintain valve 2 in a proper and efficient condition did not provide proof beyond reasonable doubt and, thus, the Prosecutor had not discharged the necessary evidentiary burden. All other admissions were based on Mr Aquilina's mistaken belief that the valve was seized.
Mr Hemmings submitted there was no probative force from the admissions until after Mr Kelly's review was completed in October 2019, because that is when the valve had been inspected after being physically cut from the pipe. The rising main was buried and so the only point at which the line and valve could be examined properly was at the time of excavation when it was removed from the system. Mr Hemmings noted that the valve was found to be in the open position and could not be closed, which did not provide support for the Prosecutor's position. Mr Hemmings made the submission that the Prosecutor had failed to prove beyond a reasonable doubt that the valve, the subject of this charge, was not maintained in a proper and efficient condition. The only conclusion that could be applied to this charge was a failure to operate.
Sydney Water's closing written submissions summarised this position concisely, saying at paragraph 316: 316. The Prosecutor cannot prove beyond reasonable doubt that valve 2 had not been maintained in a proper and efficient condition. At its highest, the evidence shows that Mr Aquilina was not able to operate the valve. Consideration of the valve charge

[55]

Mr Aquilina's evidence

I have earlier set out the terms of Sydney Water's written criticism of the manner of preparation of Mr Aquilina's pre‑trial evidence and the submission made, as a consequence, proposing that I should have concerns about his evidence's reliability.
The failure of the Prosecutor to provide a transcript and/or sound recording of Mr Aquilina's first record of interview and the obvious errors in paragraphs 11, 13, 17 and 18 of Mr Aquilina's affidavit where he refers to himself in a disembodied fashion (demonstrating both sloppiness on behalf of the member of the Prosecutor's staff who prepared the draft for Mr Aquilina's consideration and the obvious inattention of Mr Aquilina to reading, closely, the terms of the document he was being asked to adopt) are cautionary factors. However, I am nonetheless satisfied, in light of Mr Aquilina's oral evidence, what is to be discerned from the relevant terms of his affidavit and second record of interview transcript (that is available), coupled with the confirmatory affidavit evidence of Mr Saad, that I should conclude that the accurate position of what had taken place when Mr Aquilina had attempted to operate the valve to divert the sewage stream to the Liverpool Treatment Plant was that the valve key which he was attempting to operate was, as he described it, "spinning freely".
It is also to be observed that, as Mr Aquilina confirmed in his evidence, he had also attempted to use the valve key on the second valve at the relevant location (being a valve on a 600 millimetre rising main, a different rising main to that valve he had been instructed to operate). Mr Aquilina's evidence concerning his attempt to operate that second valve had also resulted in the valve key "spinning freely" - that is, for his attempts to operate each of these valves utilising the valve key with which he had been provided, neither valve was able to be operated with the valve key "spinning freely" in each instance.
I am satisfied that I should accept the accuracy of Mr Aquilina's description of what had occurred when he had attempted to engage and operate each of the valves at SP0187 - that is, that he was unable to operate not only the valve on the 450 millimetre main which he had been requested to operate, but also that he had been unable to operate the second valve at that location, that is, the 600 millimetre valve - these being the two valves shown on the schematic which he had had provided to him by Mr Ke (being the two valves also shown on the different schematic appended to the SOAF as earlier reproduced.

[56]

Dr Martens' evidence

During the course of his oral evidence, Dr Martens was shown the schematic earlier reproduced immediately before [14]. Dr Martens was cross‑examined by Mr Hemmings concerning the process for removal of valve 2 (being the valve giving rise to this charge). The relevant portion of his evidence was in the following terms (Transcript 3 September 2021, page 156, lines 10 to 47): Q. I just want to discuss with you the process as you would see it necessary in order to remove valve two. If we are trying to pump out from this pumping station, in order to remove valve two, you would need to bypass valve one and valve two? A. Yes. Q. You would need to connect a bypass from the pumping station to the downstream side of valve one? A. Or valve two. If you're removing valve two, you need to bypass the two valves, so you would have a connection from the pumping station to one of the rising mains downstream of the valve. Q. Yes, but you need to make sure that the flow can't come back at valve two, for example, so you wouldn't connect to valve two, you'd have to connect to valve one, would you not? Sorry, downstream of valve one. A. Downstream of valve - yes. Q. So you would bypass by connecting the pumping station to downstream to valve one, and then you would close valve one? A. Correct. Q. And by closing valve one, the pump out from the pumping station can continue up the rising main, but you have now isolated valve two? A. Yes. Q. Valve two being at the time of the incident in closed position, correct? A. Yes. Q. It would be necessary to dewater the 450 mil rising main as it goes to the Liverpool Sewage Treatment Plant? A. Yes. Q. So you would open valve two in order to dewater that main? A. Yes. Q. So in order to place valve two, it's necessary to close valve one and then open valve two? A. Yes.
It is appropriate to assume that this process was followed for the purpose of the removal of the valve on the 450 millimetre main for the purposes of its examination by Mr Kelly. As can be seen from the fourth question and answer in the above transcript extract, closure of the valve on the 600 millimetre main was a necessary step in the removal and replacement process for the valve on the 450 millimetre main.
It is not in contest that the removal process took place and included closing the valve on the 600 millimetre main).
This ability to effect closure of the 600 millimetre main valve is directly contradictory of Mr Aquilina's evidence that that valve was unable to be operated and that, as with his attempt to operate the valve on the 450 millimetre main, his valve key was "spinning freely" when he endeavoured to operate the valve on the 600 mililmetre main.

[57]

The relevance of the 600 millimetre valve at SP0187

I have earlier described the conclusion that I have drawn as to how I should understand Mr Aquilina's evidence concerning his attempts to operate the valves on both the 450 millimetre and 600 millimetre mains at SP0187.
The position to be accepted is that Mr Aquilina found that the valve key with which he was attempting to operate each of those valves was "spinning freely" when he attempted to do so. It is relevant, for present purposes, to understand not merely what was subsequently discovered as to the state of the valve offence valve when it was removed for inspection by Mr Kelly, but also what is known, from subsequent operations, about the state of the 600 millimetre valve at the same pumping station as the removed valve. It is not controversial that the 600 millimetre valve needed to be operated (closed) in order to permit the cutting of the pipe on either side of the 450 millimetre valve to effect its removal for inspection. Such removal (and replacement with a substituted valve) could not be effected unless the sewage flow in the 600 millimetre rising main was prevented by the closure of the valve on that 600 millimetre main.
Notably, when the allegedly defective valve was replaced on 10 September 2019, it required the use of a valve actuator truck and the application of high torque to forcefully open it: During the valve replacement, Sydney Water staff opened this isolation valve with a valve actuator truck during the valve replacement on 10th September 2019. The valve actuator placed high torque on the valve to forcefully open it and allow the de-watering of the 450mm rising main prior to the valve's replacement.
According to the Sydney Water, the Isolation Valve could not be operated by a valve actuator truck on 15 January 2019 because: … undertaking these forceful valve operations on a faulty valve can cause catastrophic failure of the valve and as such carry with it the risk of a pumping station overflow. Thus, utilising the valve actuator truck was only possible under controlled conditions.
This evidence is significant for two related reasons. First, it establishes that the use of a valve actuator truck is not the usual means by which such a valve is operated. That is an obvious inference to be drawn from the fact that the use of an actuator truck involves a forceful valve operation that can cause catastrophic failure.
Second, it should be inferred from the evidence of Mr Aquilina that isolation valves like this are ordinarily manually operated. He told the Court he used a valve key to try to operate the valve and that the valve key came from his ute and the key was supplied to him by Sydney Water - for the purpose of opening multiple valves.
The fact that an actuator truck was required to operate it in October 2017 and September 2019 supports a conclusion that, on both occasions, the valve was in a state where it could not be operated properly or efficiently. The Prosecutor goes further and submits that the only rational inference from the fact that it was necessary to use an actuator truck to operate the valve in October 2017 and September 2019 is that the valve was not in a proper and efficient condition on either of those occasions.
The necessity to utilise equipment of this type of truck in order to operate the valve in order to effect the removal of the 450 millimetre valve is, quite clearly, the antithesis of the minimalist force that could reasonably be regarded as being exerted by Mr Aquilina on the 600 millimetre valve in order to have the valve key be "spinning freely" as a result of his endeavours on that second valve.
This position, entirely independent of, and unrelated to, the state of the 450 millimetre main valve is corroborative of a possible failure by Mr Aquilina to operate either valve effectively rather than being any demonstration of the status of either of the valves.

[58]

Conclusions based on the evidence

Sydney Water's closing written submissions, at paragraph 303, proposed the following concerning the valve on the 600 millimetre main and the inference to be drawn from it. The submission said: That is, valve 1 was able to be operated. The reasonable inference available is that Mr Aquilina was not able to operate valve 1 (or valve 2) not because of a problem with the valve but rather because of his operator error.
I am satisfied that, on the basis of the various evidentiary elements earlier outlined, that conclusion is the only one available and capable of being drawn from the facts as they have been revealed after the event.
The position concerning the valve charge is comparatively easy to resolve, bearing in mind the burden of proof placed on the Prosecutor to demonstrate beyond reasonable doubt that the inability of Mr Aquilina to be able to close the valve during the incident was because the valve was incapable of being so operated (because Sydney Water had failed to maintain it). I am satisfied that the evidence establishes:

on the evening of the incident, Mr Aquilina attempted to close the valve using the equipment (the valve key) with which he was equipped to undertake this operation; and
having discovered the location of the relevant shafts that enabled the key to be engaged with the below‑ground operating mechanism of the two valves at SP0187, Mr Aquilina endeavoured to engage the relevant mechanism with the valve key;
Mr Aquilina considered that he had so engaged the valve key; and
when he endeavoured to use the valve key to operate the required valve he was unable to do so; and
his evidence (corroborated by the evidence of Mr Saad) was that the valve key spun when he endeavoured to utilise it to operate the valve. This, Mr Aquilina concluded, meant that he was unable to operate the valve because the valve was defective; and
the valve was subsequently cut out of the rising main and removed for examination; and
that examination was undertaken by Mr Kelly; and
Mr Kelly was appropriately qualified to undertake an examination of the condition of the valve and he did so; and
Mr Kelly's examination of the valve disclosed that, although it could not be opened completely, there was no mechanical inhibition that prevented the valve being closed if the valve mechanism was operated correctly; and
there was no evidence that the valve had been damaged or its condition altered during the course of its being cut out of the rising main and removed for inspection.

There is no suggestion that any of the three witnesses who gave evidence relevant to this aspect of these events gave their evidence other than honestly and accurately to the best of their recollection (and in Mr Kelly's case supported by his technical report). The only rational explanation capable of reconciling this evidence must be that, when Mr Aquilina attempted to use the valve key to close the valve giving rise to this charge, he failed to engage the key with the spindle in a fashion so as to permit him to use that key for its intended purpose and operate the valve by closing it.
Whilst, as advanced by Mr Hemmings, the failure to operate the valve in a proper closing fashion demonstrated by Mr Kelly's report as being both possible and available, this was not the basis of the allegation levelled by the Prosecutor as founding the valve charge.
Although undoubtedly there were significant pollution consequences arising from the failure to operate the valve and cause the diversion of the sewage stream from the pumping station by bypassing and diverting sewage to the Liverpool Treatment Plant, that consequence arose not because the valve was incapable of being operated in order to achieve that outcome, but could have been because the valve was not operated by Mr Aquilina to achieve that result.
Although the non-operation of the valve had this adverse effect, the Prosecutor must prove, beyond reasonable doubt, that it was not capable of being so operated,
As a consequence, the charge of "failure to maintain" which has been laid against Sydney Water could not possibly be regarded as having been proved beyond reasonable doubt.

[59]

Admissions

The Evidence Act 1995 (the Evidence Act) makes provision, in s 187, for an exception to the hearsay rule that renders statements made by an individual (whether on their own behalf or on behalf of an organisation on whose behalf they are authorised to speak) capable of being taken as an admission, although the statements were made on the basis of information obtained from a second person (that is, on a hearsay basis).
In these proceedings, for the purposes of the valve charge, the Prosecutor relies on a number of statements made by representatives of Sydney Water as admissions where those statements were to the effect that the valve which Mr Aquilina had been instructed to operate was, variously, seized, inoperative or broken (its operation being necessary to divert portion of the sewage stream that would otherwise go to the pumping station to be redirected to the Liverpool Treatment Plant). These constituted, it was submitted, admissions that the valve was, in fact, seized, inoperative or broken.
It is not necessary, to address this proposition, to set out the terms of s 187 of the Evidence Act. Neither is it necessary, in my assessment, to resort to authority to explain why these so‑called admissions provide no assistance to the Prosecutor.
For reasons I have explained in the preceding portion of this decision, I am satisfied that the Prosecutor has not proved, beyond reasonable doubt, that the valve was defective in the manner charged. To the contrary, I have found that the failure of Mr Aquilina to operate the valve in the fashion in which he had been directed by Mr Ke potentially gives rise to the conclusion that the failure arose from Mr Aquilina's operator error rather than from the state of the valve.
However, Mr Aquilina's failure to operate the valve as directed did give rise to his belief as to the state of the valve. That belief was, for reasons earlier explained, not established beyond reasonable doubt. However, Mr Aquilina communicated that belief to Mr Ke and, the evidence discloses by inference, that Mr Ke communicated that belief to others.
Mr Ke and others to whom he communicated Mr Aquilina's belief were persons who have made statements recorded in the evidence that are now relied upon by the Prosecutor as admissions. That is, the source of all of the alleged admissions is Mr Aquilina's opinion as to the reason why he was unable to operate the valve in order to divert the effluent flow to the Liverpool Treatment Plant.
The fallacy in seeking to rely upon those statements as admissions is reminiscent of the childhood hymn concerning the house built upon the sand rather than upon the rock. If the foundations are lacking in support, the house will fall down.
In the present circumstances, the foundation (Mr Aquilina's conclusion concerning the valve) is a "foundation in the sand" for the subsequent comments sought to be relied upon as admissions. Such statements, based on a likely fallacy, can have no probative value for the purposes of the Prosecutor seeking to prove the valve charge beyond reasonable doubt.

[61]

Observations on the burden of proof

Before turning to the detail of the rising main and pumping station charges, it is, first, appropriate to note two obvious matters. First, the offences with which Sydney Water is charged are ones of strict liability, that is, there is no issue of intention arising for consideration. Second, although trite to say, the Prosecutor must prove all the relevant factual elements of each offence beyond reasonable doubt.
The additional element that arises for consideration in both the rising main and the pumping station charges is where a potentially available defence is raised by Sydney Water and sought to be established on the balance of probabilities in circumstances where the facts might otherwise be capable of establishing the charge. In such circumstances, the position is more complex. The issue of how the burden of proof falls in such circumstances was addressed by the High Court in Taiapa v The Queen (2009) 240 CLR 95; (2009) 214 A Crim R 486; (2010) 261 ALR 488; [2009] HCA 53 (Taiapa), proceedings where that accused had raised the defence of compulsion in the context where, charged with unlawful trafficking in a dangerous drug, he proposed that he had done so under compulsion on the basis that he did the act that was said to constitute the offence in order to save himself and members of his family from threatened serious harm.
A statutory defence was provided by s 31(1)(d) of the Criminal Code 1899 (Qld) where a defence of "compulsion" was made available to an accused. In [5], the Court said (footnotes omitted): 5 While it is conventional to describe s 31(1)(d) as providing the defence of compulsion, it is well-settled that if there is some evidence capable of raising the issue, the legal or persuasive burden is on the Crown to exclude the proposition that the accused was acting under compulsion beyond reasonable doubt - that is, exclude any reasonable possibility that the proposition is true. In deciding whether the evidence sufficiently raises the issue to leave compulsion to the jury, it is necessary for the trial judge to be mindful of the onus of proof. The question is whether, on the version of events most favourable to the accused that is suggested by the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the accused was not acting under compulsion. It was not disputed that the onus on that question - an evidential burden - is on the accused. It is the accused who must tender evidence, or point to prosecution evidence, to that effect.
The broad principle here relevant is that, should Sydney Water demonstrate, on the balance of probabilities, the evidence sufficiently establishes the availability of a defence, it then falls on the Prosecutor to exclude any reasonable possibility that the propositions advanced by Sydney Water are true - that is, rebuttal beyond reasonable doubt.
To the rising main charge, Sydney Water raises the defence of "honest and reasonable mistake of fact". With respect to the pumping station charge, Sydney Water raises the defence of "necessity".
For present purposes, it is unnecessary to address the details of these defences or the Prosecutor's response to them - this is to be done below in considering, in detail, each of the charges. It is sufficient now to note how the evidentiary burden falls in such circumstances as a general proposition derived from the element of Taiapa set out above.

[62]

Introduction

During the course of his opening oral submissions, Mr Hemmings said (Transcript 30 August 2021, page 29, lines 37 to 43): In terms of the rising main, we rely upon a defence of necessity. The rising main had to be prepared. It was on - different evidence depends on who's got it right or wrong, but the crack appeared to be discharging somewhere between about 21 or 28% of the flow that was going out the rising main. So it needed to be fixed. But that repair process was both difficult and complicated.
Although, as can be seen above, Mr Hemmings foreshadowed that Sydney Water would rely on the doctrine of necessity as a defence to the rising main charge, as matters unfolded in the written and oral submissions at the close of the proceedings, this proposition was not developed in detail.
The defence of necessity was only, as later discussed, expressly raised in detail in the context of Sydney Water's defence of the pumping station charge.
However, to the extent that it is appropriate to be noted in the context of the rising main charge, my subsequent detailed explanation as to why "the defence of necessity" has not been established, on the balance of probabilities, to the pumping station charge is equally applicable to found rejection of such a defence on the rising main charge.
In paragraph 1 of Sydney Water's written closing submissions, it was submitted that the rising main charge should be dismissed because: ● Sydney Water relies upon the section 122 POEO Act defence. The pollution event was authorised by Sydney Water's EPL. Alternatively, Sydney Water is entitled to the defence of honest and reasonable mistake.
It is, therefore, necessary to consider, first, Sydney Water's primary defence to the rising main charge, the statutory offence created by s 122 of the POEO Act, and whether, on a proper consideration of the facts and the relevant conditions of Sydney Water's EPL, that defence is available.
Second, it will also be necessary to consider the alternative defence of "honest and reasonable mistake of fact".

[66]

Mr McDonald's evidence

The transcript of a record of interview with Mr Stuart McDonald had been tendered by the Prosecutor. The interview took place on 9 September 2019. His interview was carried out by several of the Prosecutor's officers (Ms Jones and Mr Rutherford). One element of his record of interview (to which his oral evidence was not directed) concerned Sydney Water's condition assessment program for sewers that were regarded as critical assets. This element of his record of interview was in the following terms (interruptions omitted): MS JONES: Q 169. Stuart, are you aware of what this particular rising main is classified as within this plan? A An avoid fail sewer. Q 170. Okay. Are there any specific requirements with regard to avoid fail sewers? A That we manage them proactively. That we undertake condition assessment programs on these sewers. They' re classified as avoid fail. We don' t want them to fail. Q 171. Mmmm. A So, we have a proactive approach. Q 172. So with regard to that approach for the rising main involved in this incident, what were the activities? A It was condition assessed in 2007. Q 173. Was there any further assessment? A No. Not in relation to condition assessment. MR RUTHERFORD: Q 174. Have you made any requests in between 2007 and 2019 in relation to condition assessments for this rising main? A We had considered it for condition assessment in 2017. However, at that time I was not aware of the 2007 condition assessment being undertaken. And then on review of that report, I then subsequently withdrew that, withdrew that condition assessment. Q 175. So, prior to becoming aware of the knowledge of the 2007 assessment, could you explain to me the decision making process in relation to confirming that or intent that you were intending to undertake that condition assessment 2017? A So, using the prioritisation list - - - Q 176. Yeah. A - - - we were working through those at that time when we first - in 2017 when we were going to put forward that I was not aware of the 2007 report and therefore, we were working down that list. When I became aware of the 2007 report, I had a review of it, it showed it didn't have a failure predicted until about 2023. I therefore withdrew that so we could focus our expenditure on the next priority rising main. Q 177. Okay. Was there any other information other than the 2007 report that impacted on your decision to withdraw that request? A I' m not too sure. I mean I know I produced an e‑mail. You would have been furnished with that e‑mail. So, whatever the contents of that e‑mail are. … MR RUTHERFORD: Q 179. Upon withdrawing the request to have the rising main condition assessed in 2017, did you provide any further information as to the next predicted or intended condition assessment for that rising main? A No. Q 180. The condition assessment that was planned in 2017 are you able to describe what takes place during the assessment, a condition assessment of that sort? MR IBBOTSON (a lawyer for Sydney Water): Well, a condition assessment wasn't planned in 2017. It was thought about. MR RUTHERFORD: Initially. MR MCDONALD: Yeah. MR RUTHERFORD: Q 181. So, the 2017 - the intention to carry out a condition assessment on the rising main , so specifically - this is not a hypothetical, but I'd like to know what is your knowledge of condition assessments that are taking place and rising mains as was intended in 2017? A We have condition assessment consultants that do this work for us. So, we provide them with base documentation. There is a specification which they work to and they would undertake the condition assessment in line with that specification. So, as part of that we did receive a - I guess a quote for the work from our - one of our condition assessment companies at the time.
Mr McDonald was required for cross‑examination. His oral evidence was given on 1 September 2021. Although somewhat lengthy, it is appropriate to set out his evidence in full.
He was cross‑examined on behalf of Sydney Water by Ms Hall. His evidence in cross‑examination was in the following terms (Transcript 1 September 2021, page 110, line 41 to page 114, line 24): Q. Mr McDonald, can you see there that there's a question at around 198 where it just says: "Q. Okay. A. With regard to internal inspection of the pipe, it is very difficult for this main." Do you see that there? A. Yes. Q. When you were talking about "this main", you were talking about rising main 0213, is that right? A. Correct. Q. There are a number of reasons why an internal inspection of that particular rising main is difficult, is that right? A: That's correct. Q. The first thing you have to consider is you've got to get inside the pipe, is that right? A. Yes. Q. Rising main 0213 is 1,163 metres long? A. I'll take your word for that. Q. It's over a kilometre, you know that? A. Yep. Yes. Q. For the most part of it, it's underground? A. Yes. Q. That means that, in parts, it runs under parks and other areas? A. Yes. Q. It also runs under roadways. A. Yes. Q. One of the significant roadways that it runs under is the Horsley Drive? A. Yes. Q. And you know that that's a major thoroughfare in that area? A. Correct. Q. In order to get inside the rising main, you would need to excavate the areas to be able to access that rising main? A. Not necessarily. We do have two valve chambers, however it's still a significant exercise to take the rising main offline and dealing with the operational flows coming through that station. Q. So in order to take it offline, you need to isolate the rising main, is that right? A. That's my understanding, yes. Q. You'd need to dewater the rising main? A. Correct. Q. You're aware of the possibility of putting CCTV into a rising main to inspect it, is that right? A. That's a methodology, yes. Q. It's one of the methodologies that are available, is that right? A. Correct. Q. For the most part, when you're doing an inspection of a rising main, you're looking towards the top of the pipe for corrosion. Correct? A. That's generally our understanding for corrosion, internal corrosion on rising mains. Q. That's what you're focused on when you do an internal inspection. Correct? A. We focus on the - the entire main inside, whatever we can see in the vision. Q. When you say, "Whatever we can see in the vision," that is limited by the extent to which a rising main has been able to be emptied for the inspection? A. Agreed. Q. To be able to see the very bottom of the pipe, you would need to effectively clean it out. A. We've had instances where, yes, there's material on the bottom which makes it hard to see the bottom of the pipe. The other thing is, if it's on a very flat grade you'll often - latent water ponding on the bottom of the pipe. Q. So in order to be able to get a clear view of the bottom of the pipe, it needs to be entirely cleaned out. A. True. Q. One of the limitations of using CCTV to inspect a rising main is the extent to which or the length of the cable of the CCTV. Is that right? A. That's correct. There's different limitations on - on - on the cable length. Q. They certainly don't extend for a kilometre. Is that right? A. There are some providers, but not currently with Sydney Water. Q. At the most you're probably looking around 200 metres. Is that right? A. I understand that the capability is about 300 metres. That's one limitation. The other limitation is about the - essentially the traction of the device inside the rising main over longer lengths. Q. When you say, "the traction of the device", what do you mean by that? A. Inside a - so a rising main over longer lengths, you can - you're pulling a cable and so the - the - the traction of the wheels to continue to propel the device in a forward motion can start to slip at - at certain distances, and also depending on how clean the pipe is. Q. So again we come back to the issue of needing to have these things cleaned out to be able to effectively inspect them? A. That's correct. Q. That's a reasonably common impediment that you deal with. A. Correct. Q. You told me that there are two valve chambers that enable you to access rising main 0213. Is that right? A. That's my understanding. Q. As far as you understand, they're the only two points of access on that particular rising main? A. The other point of access is at the discharge end of the rising main which has got its own complications in terms of how to get in there, because there is a secondary rising main that discharges at the same location. So the - the confined space - space environment is - is - has potential - certain risks associated with it, which also need to be managed. Q. That third point you were talking about, the access point, is that where the rising main 0213 meets up with the NGRS? A. Correct. Q. So there are a number of other rising mains effectively meeting at that point? A. There's, I - I believe it's rising main from SP0384, that's a ten-50 rising main and it discharges in the same chamber. Q. Do you also understand that rising main 0419 discharges at that same chamber? A. Zero - okay, it might be 419. I - I thought it was 384. I'd have to have a look at the plan. Q. All right. You know at least there's one other that discharges A. Yes. Yes. Q. So in order to be able to access 213, the other rising main at that point also needs to be isolated, or at least the point of connection needs to be disabled in some way? A. Yeah, we - we can't have that one pumping while people are in that chamber. Q. In terms of putting the CCTV machinery into the rising main to do the inspection, do you also need to have at the same time people in the chamber operating the equipment? A. We need someone in the chamber to essentially put the device into the rising main. We also need someone to manage the cable and feed the cable. My understanding is that the access point to that chamber is a couple of metres away from the actual chamber itself, which makes it a little bit more problematic. The operation of the device is typically managed in the truck. Q. So at least for getting it in and the cable being manoeuvred, there does need to be access by people into the chamber as well? A. In - in installation certainly. I'm - I'm not a CCTV operator handling this device. So that kind of question is best managed by others. Q. Certainly. I spoke to you before about the point at which 213 meets up with the other rising main at the NGRS. In order to access 213 you spoke about having to isolate that other rising main, and that would be usually by way of a plug. Is that right? A. Are you talking about rising main 213, or Q. Yes, at the point where it makes the NGRS and the other rising main. A. My - my understanding is that during normal daytime flows, the NGRS flow levels is such that a back - back flows back into SPS213 rising main. So we have a constant flow down the rising main during normal day - day of operations. Q. So that would need to be dewatered for all of these processes to actually implement a CCTV inspection? A. Yes, there are some complexities. In terms of the - the exact operations, there's area team operators that would be better to provide that information. Q. In order - and this, again, may be something that the actual technicians can answer and you can't, and tell me if that's the case, but once you've plugged up one end of 213 to ensure you're not getting back flow from the other rising main at the point where they meet, how do you actually get the CCTV equipment into the rising main? A. At the discharge end, you can't. If you've got a - if you've got a Mooney ball - a - a Mooney ball plug in there, you can't launch the camera down there. Q. So it can only be launched from one end? A. At the time of the failure, most certainly. That's my understanding. The - the other locations for insertion requires an excavation and a piece of pipe cut out.
Mr McDonald was re‑examined by the Prosecutor. His re‑examination was as follows (Transcript 1 September 2021, page 114, line 28 to page 115, line 37): Q. You described the flow level of the NGRS at daytime. Is the flow level of the NGRS different at night-time? A. We have higher flows during the day. It is lower flows at night. It's - it's safer to access that at night-time from what I understand certainly through the process of this investigation. Q. So as at the time of the incident in January 2019, it would have been safer to engage in an exercise of examination of the inside of the rising main from its junction with the NGRS during night time hours? A. Sorry, can you repeat the question? Q. Is it the case that at the time that the incident occurred in January 2019, it would have been safer to access the rising main for the purposes of conducting CCTV examination of its insides from its junction with the NGRS, if it was conducted at night time rather than in the daytime. A. Safer to access the chamber, yes. However, my understanding - and again, others will need to respond - the NGRS continues to backflow down the rising main at night time flows, as well, but others would have to be able to answer that question. Q. You told Ms Hall that the rising main would need to be entirely cleaned out for CCTV inspection to be effective. Would flushing the rising main go a long way to achieving that goal, sticking a hose down or up? A. It is a long rising main. There's certain pressures in the injecting that would need to be done. You'd need to also be able to draw back any sealed biofilm, any of that material. It's quite an exercise. Q. It's not impossible. A. I - look, again, you know, there are some complexities onsite. It all takes time. It needs to be managed with the operation of the pumping station. Q. Have you been involved in an exercise of conducting an inspection of the inside of a main using CCTV? A. I've seen a number of CCTVs inside pressure mains, yes. Q. When you say you've seen it, do you mean you've seen the images? A. That's correct, the video footage. Q. You've not been involved in what had to be done to obtain those images. Is that right? A. In terms of being onsite, I gather you are asking about. Q. Yes. A. I've been onsite for other CCTV operations, to understand how to launch a camera. I have seen the footage and I've seen that after it has been attempted to be cleaned. Q. Sorry, that last answer A. After it has been attempted to be cleaned. Q. After the main concerned being, or the CCTV camera? A. So, the - the rising main. After the rising main has been attempted to be cleaned, I've seen the - the video footage after that. Q. And it is the case, is it, that it is possible to ensure that the footage obtained by the use of CCTV to inspect the inside of a main captures the bottom of the pipe? A. As I explained previously, sometimes there is still latent water lying in the inverter pipe, so any inspection is going to be hit and miss. There will be portions that you will see, portions you won't see.

[68]

Mr Holland's oral evidence

Mr Holland was required for cross‑examination. This took place on the morning of the fifth day of the hearing. The first element of his evidence concerned condition L7.4 and its permitting of dry weather overflows in certain circumstances. This evidence was in the following terms (Transcript 7 September 2021, page 183, line 25 to page 184, line 41): PROSECUTOR: ‑‑and down the bottom of the page, you'll see para 22. A. Yes. Q. You have reproduced condition L 7.4 of the environment protection licence. Do you see that? A. Yes, I do. Q. Do you see that the language that the conditions uses is the total number of dry weather overflows reaching waterways from the sewage treatment system. Do you see that? A. Yes, I do. Q. Can you go to the next page, please. Do you see that, at the moment para 23 reads, "There were 79 dry weather overflows to waterways in the Malabar wastewater system in the reporting period, 2018‑2019"? A. Yes. Q. Right. We'll just test this then. What do you mean by 79 dry weather overflows to waterways in the Malabar wastewater system? A. So the number that was reported there in that statement is in line with the reporting that was done to the EPA to meet that condition, so it would be affecting waterways. Q. That's not what the condition says, is it? A. No, it says breaching waterways. Q. Yes. So why did you say "affecting" waterways? A. I'm not sure but Interruption excised WITNESS: I think as part of the reporting process, each overflow is assessed to determine whether or not it reaches a waterway, and I guess, also in line with the Protection of the Environment Operations Act 1997, whether there is a change in the condition of the environment to overflow effects, and that assessment is done on an individual basis for each overflow, and then the accumulation of that is the 79 dry weather overflows to waterways. PROSECUTOR Q. Sorry, I don't understand what you mean by the second part of your answer. A. I guess each individual overflow is assessed to determine by a reporting officer, or I guess, it varies with different stages, currently, there's an environmental liaison officer that works in part of Sydney .. (not transcribable)..water, that engages with the EPA, and as part of their determination, they assess whether the overflow was to a waterway, and then that's recorded, and then the total number of reaching waterways is then what's recorded as part of that clause. Q. And as you understand it, the person conducting the assessment in each case is using the yardstick of dry weather overflow reaching waterways to determine whether it should be included in the number of overflows to be reported under condition L7.4. A. That is my understanding. Yes.
Mr Holland was then shown a spreadsheet entitled "Pressure main risk classification.org.aug 2017, V3 (version 1)" (Defendant's evidence C75.072). He was cross‑examined about this document (Transcript 7 September 2021, page 185, lines 25 to 43): Q. … It's the 213 rising main. A. Yes. Because this is the - I think the rising main spreadsheet. Yeah. Q. And can you see that on the left-hand column, a risk rank of 5 has been assigned to that main. A. Yes. Yes, I can. Q. Do you know the basis on which the 213 rising main was classified as equal fifth in the risk ranking of mains? A. Generally speaking, but not specific detail. Q. What can you tell us, generally speaking? A. That there's essentially a - I think, elsewhere in the material that was provided was the guidelines for how the risk assessment is to be formed, based on the types of consequence of failure. So, environment safety, public health, community, there's a general guide around different types of failure consequences, and then there's also a likelihood of failure. So the risk ranking is a combination of what is perceived to be the likelihood of failure and the type of consequences that could occur if the failure was to occur.
Mr Holland was next shown another document produced by the CSIRO and Water Services Association Australia entitled "Condition assessment and risk management guidelines: rising main subsystems" (Prosecutor's evidence A23.037).
Mr Holland accepted that relevant Sydney Water staff have "taken this kind of document as a guide, and they're not specifically necessarily specifically referred to in our direct strategies and how we implement, but they're in similar practice with our own practices at Sydney Water" (Transcript 7 September 2021, page 186, lines 23 to 26).
The Prosecutor then quoted from page 21 of the document (A23.037.035) as follows (Transcript 7 September 2021, page 186, line 32 to page 187, line 31): A rising main is the pressure pipeline used to convey sewage from the pumping station to a discharge point in terms of layout. There are three types of rising main, type 1, always rising, type 2, rising with a single high point, type 3, rising with multiple high point. continued quotation: To the vast majority of rising mains (greater than 90%) are buried and between 100 and 900 millimetres in diameter. As with other pressure pipes, pipe diameter is used in some utilities as a basic measure of relative asset importance, though, in the face of rising mains, other factors such as environmental sensitivity, must be taken into account. Rising mains can be constructed as twin pipelines to allow maintenance to be undertaken while retaining capacity to continue pumping, but many are single pipelines. Some dual pipelines exist where the second pipeline was constructed to provide more capacity, not for redundancy. Rising mains that convey a major portion of the municipalities sewage with no backup or redundancy would have a high consequence of failure rating.
Mr Holland was asked if he agreed with that which the authors had expressed in the quoted passage and he said that he did.
Mr Holland was next taken to matters relating to issues arising from investigation of a breach incident involving the rising main which had occurred during 2013. He was taken to details of what that investigation had revealed. The Prosecutor then questioned him concerning the matters to which he had been taken (Transcript 7 September 2021, page 190, line 41 to page 191, line 9): Q. These matters that I've taken you to would suggest that Sydney Water was on notice as at January 2019, that there was, in respect of 213 rising main, a high risk of future failure. You'd agree with that? A. Yes. Q. You'd agree that these matters that I've taken you to would suggest that Sydney Water was on notice, but in the event of a failure, there would be difficulties in addressing, or effecting any emergency repairs, because of the pump station's low detention time, the need to isolate pump station 187, and its very low detention time? A. Yes, that would be reasonable to take that. Q. Do you think that, given these matters, given the risk ranking of 213 rising main, it would have been prudent for Sydney Water, by no later than January 2019, to have constructed a redundant main alongside 213 rising main? A. I'm not across the detail of what would have been developed in terms of a capital business case to do such a piece of work, and I guess, as part of our process, there's always the demonstration of that being prudent to our pricing regulator as well.
The final element of Mr Holland's evidence involved him responding to a hypothetical advanced by the Prosecutor (Transcript 7 September 2021, page 192, lines 28 to 39): Q. If there had been a redundant main sitting alongside 213 rising main as at 14 January 2019, it would have been possible to divert the flow that otherwise went into 213 rising main, into that redundant main, would it not? A. Assuming that configuration had also been done in the pumping station and bypass arrangements in place to take advantage of that rising main, the secondary rising main, then, yes, it would have been possible to divert flow to the redundant rising main. Q. And in that event, it would have been possible to empty the 213 rising main for detailed inspection and repairs, if not refurbishment. A. I'm not 100% across the details of the configuration of it, but it's possible that it could be done, yes.
Mr Hemmings did not re‑examine Mr Holland.

[69]

Introduction

Evidence was given on 1 September 2021, immediately following Mr McDonald, by Mr Philip Ferguson, a pipeline condition assessment consultant. Mr Ferguson deposed two affidavits. The first was on 6 October 2020 and the second on 3 August 2021.
As can be seen from the outcome of my consideration of the rising main charge, Mr Ferguson's evidence is of critical importance. It is appropriate to set out, first, his summary curriculum vitae. It is in the following terms: Mr Philip Ferguson holds a Bachelor of Science in Metallurgy from UNSW where he specialised in underground corrosion of ferrous metal pipelines and associated measurement, evaluation techniques and methodologies. Mr Ferguson has over 30 years' experience in the industry and has worked on projects that examined the condition of pipelines, corrosion engineering in water and wastewater, underground corrosion, the performance of cementitious materials, and the performance of ferrous pipelines. To date, Mr Ferguson has been involved in the condition assessment of over 3800 km of pipeline and over 100 pipeline failures. Currently, Mr Ferguson serves as the Manager and Principal Consult and for Pipeline Condition Assessment, or PCA, based in Silverwater, NSW. Mr Ferguson has collaborated and investigated with water authorities in the Asia Pacific Region including, water corporations and public utilities boards in Australia, Hong Kong, and Singapore.
Mr Ferguson had authored a number of relevant reports. Copies of these reports formed part of the exhibited documents to his first affidavit. His first affidavit records these, at paragraphs 7 to 15, relevantly: March 2007: Condition Assessment Report- SPS213 Fairfield 7 In about 2007, I was requested by Sydney Water Corporation to carry out a condition assessment of the Sewage Pumping Station 213 ("SPS213") sewer rising main between the pump station, located at end of Waterside Crescent, Carramar and Tuncoee Rd, to the east of Horsley Drive, Carramar. 8 In about 2007, I personally undertook an investigation of the SPS213 rising main. The investigation involved the determination of soil corrosivity, using SoilCorr, and occurrence of internal corrosion, using RFT Mainscan®, and a prediction of likely time to failure. 9 On about 5 March 2007, I prepared a report titled: "Condition Assessment Report - SPS213 SRM Fairfield" which set out details of my findings in relation to the condition assessment. February 2019: Failure Investigation SPS213 SRM - Preliminary comments 10 At about 8:40am on 25 January 2019, I was contacted by Rohit Narain of Sydney Water Corporation and asked to "complete a failure investigation" of the 600mm SPS213 rising main. As a result of receiving this request, I instructed a sub-ordinate to go to Potts Hill site and take photographs of the removed pipe. I requested that a piece be cut and sent to me for closer scrutiny. I then personally undertook an investigation of the SPS213 rising main. 11 On about 4 February 2019, I prepared a report titled: "Failure Investigation SPS213 SRM - Preliminary Comments" which set out details of my preliminary findings in relation to my investigation of the failure of the SPS213 rising main. July 2019: SPS0213 - DN600 CICL Failure Investigation Report 12 At about 7pm on 25th June, 2019, I was contacted by Stuart McDonald of Sydney Water Corporation and asked to provide the first draft of the SP0213 rising main report (post failure). As a result of receiving this request, I reviewed all available data and requested some additional photographs of pipe. 13 On about 15 July 2019, I prepared a report titled: "SPS0213 - DN600 CICL Failure Investigation Report" which set out details of my findings in relation to my investigation of the failure of the SPS213 rising main. November 2019: Failure Investigation Final Report of SPS213 14 At about 5.22pm on 28th October, 2019, I was contacted by James McCulloch of Sydney Water Corporation and asked to provide "timeline for delivery of revised SP0213 failure investigation report". As a result of receiving this request, I reviewed comments from Stuart McDonald and James McCulloch, and previous issued reports. 15 On about 15 November 2019, I prepared a report titled: "Failure Investigation Final Report of SPS213" which sets out details of my final findings in relation to my investigation of the failure of the SPS213 rising main. A copy of the report dated 15 July 2019 is exhibited to me at the time of affirming this affidavit and is marked Tab 5 of Exhibit PF-1.

[70]

Mr Ferguson is interviewed by officers of the Prosecutor

Mr Ferguson was interviewed by officers of the Prosecutor on 2 September 2019. A copy of the transcript of that interview formed part of the exhibited documents to his second affidavit.
Relevant extracts from the transcript of Mr Ferguson's interview are reproduced below: Q 118. Non Destructive Testing? A Yeah. Q 119. And where is that undertaken (indistinct) A Well, well this one would have been - certainly the priority was in those days to do it on the crown of the pipe, the top of the pipe - - - Q 120. Okay. A - - - we probably realised a little more now you can go down even further, or with this one actually we're gonna go all the way around because the failure of this thing actually occurred recently on the bottom of the pipe and a different mechanism in my view - - - … Q 144. Yes. A - - - so I think that the - we were of, of the view in those days that the internal corrosion would only manifest itself on the, on the top side of the pipe, I, I - it probably changed a little bit recently we, we - if we done this now we would have gone a little bit further down - - - Q 145. Okay. A - - - and as a matter of fact if we knew - know what we know - knew from the failure we could all - would have gone all the way around it. That adds another considerable cost and effort to the operations which we didn't think was justified at the time. Q 146. Okay. That was my question obviously to explain the rationale and that - you've explained that. Whose decision was it in relation to the rationale - executing the rationale? A It would have been my recommendation and Sydney Water would have agreed - - - … Q 164. If I can just draw your attention to Page 15 and - the conclusion page and Point 4, "The main will be at future risk of internal corrosion failure in the medium term." Are you able to describe firstly what the risk of internal corrosion means? I think you've sort of explained it before if you could just - - - A Yeah - - - Q 165. - - -read the (indistinct) page? A - - - that's, that's to do with - on recollection I doubt it was in this document, but basically we measured that there was loss of wall on the inside of the, the top of the pipe and if you like, that drawing I said before there was some taking simple extrapolation then it was likely to reach through wall in the medium term which presumably 10 to 15 years that's my understanding of that. Q 166. Yes. And just in relation to medium term is that what you define to be medium that - those? A Yeah, well the way I, I get it is to have a look at the, the graph and the graph's showing it's failing roughly 20 - 22, or something or rather if you look at this. … Q 268. In response to the phone call and information from Stuart McDonald could you tell me what you did in response? A I think he, he informed that there was a piece available that had been cut and I asked some - one of my guys to go and pick it up basically and I had a look at it and when I saw it and it's very unusual it's not what I expected, as I said it was not the failure mechanism that I actually anticipated. Q 269. Could you elaborate on what you understand or what you mean by, "anticipated?" A I, I anticipated a corrosion on the top of the pipe basically through water corrosion from internal corrosion, septic sewerage being eroded as was, if you like, predicted within the 2007 report - - -
In the following extract, the correct year reference clearly should be 2007 not 2017. Q 353. - - - where you look at a probability that exists and you're able to apply a particular timeframe to that probability and - I think you've referred to it as, "a medium term" a medium term existing at a point roughly 22 years after this report was completed in 2017 was - what I understand to be that time which is considered to be the potential or probable failure is it? A Yeah, based on the, on the information we had and, and the model we, we - we're using. Q 354. And is that based on corrosion? A That was purely based on internal corrosion due to acidic corrosion of the top of the pipe so, that, that model did not predict this.

[71]

Mr Ferguson's 2007 condition report

In 2007, Mr Ferguson produced a report for Sydney Water which included an assessment of the condition of the rising main and what might be the risks of failure (at A39.001.019). Relevant elements of this report are reproduced below: Discussion … The investigation shows that the external condition of the pipe is likely to be in good condition for essentially its entire length, and only those areas which have been subjected to internal corrosion are likely to be at risk of failure in the medium term (see Figure 13). Of course, this is neglecting the possible occurrence of brittle mechanical fracture of the grey cast iron pipe. This can occur if there is excessive internal loading from water hammer, or traffic loading. It is difficult to estimate over what time period the internal corrosion has taken place. Initially the pipeline would most likely have been lined with cement mortar, and the sewage may not always have been septic, or aerated after septicity. It has been estimated that the internal corrosion of the wall has taken place over a 25 year time period, at a rate of approximately 0.3mm/yr. If the period is shorter, the rate is higher, and the future probabilities of short term failures also higher. There is also a possibility that the reduction in sound metal wall thickness is a consequence of a casting defect. This is uncommon with centrifugally cast iron pipe, but the location of the inspection position along the pipeline is not usually subjected to the effects of internal corrosion.
The conclusions in Mr Ferguson's 2007 report were (at A39.001.020): Conclusions 1. The natural soil surrounding the pipeline is moderately corrosive; 2. The sand surround in contact with a large percentage of the external surface is non- corrosive; 3. The main is not at high risk of external corrosion failure; 4. The main will be at future risk of internal corrosion failure in the medium term; 5. This risk is greatest at high points where air accumulates; 6. As the main is grey cast iron it is always at risk of failure due to excessive rapid loading.

[72]

Mr Ferguson's initial responses to the January 2019 rising main failure

On 4 February 2019, Mr Ferguson e‑mailed Sydney Water with preliminary comments concerning the failure of the rising main (at A39.001.021-23). He observed: I've looked at the removed piece, and offer the following initial observations and comments. (Some of these will address your queries below). 1. The thin area of pipe wall is reportedly located on bottom of pipe (?); 2. The thin area is approximately 90-100mm wide, with a smaller area being ultra-thin (approximately 20mm wide) (assuming adjacent pipe sample is a "mirror" image of the one cut-out; 3. There appears to be a relatively sharp boundary at edge of the thinner region; 4. The thinner region is smooth and exhibits some 'undulations" (varying thickness); (Can we determine the direction of flow of sewage with regards to pipe sample?); 5. The cement mortar lining is absent for some cm's adjacent to thinner area - (to be expected); 6. There is rust staining of cml and rusting of surface of pipe bore adjacent to the thin area (this would not normally be expected - this area extends well beyond the adjacent area - see photo below which shows lime depleted mortar as stained sand-rich mortar - PCA needs to check pH of cml - but quite sure for this will be low - as a result of lime depletion - the question is why?); Also - it appears as though the failed pipe is located at about 5m height as per: Preliminary comments: 1. The observations suggest that erosion has occurred - but doesn't explain the undulations and "narrow" ultra-thin area. (Possibly in combination with a casting defect. Spun Cast iron pipes can exhibit "laps"). Need to ascertain if adjacent pipes exhibit same thinned areas. 2. Chemical attack has occurred of cml - why? (First thoughts are a "corrosive" solid material has been conveyed - what is condition of upstream pipework and cement (including-wet well), and what is a possible source of this corrosive material - chemical plant?) 3. The erosion could be a consequence of sand from cml.
At A39.001.024, Mr Ferguson made this relevant observation: 1. …; 2. …; 3. No need to perform Pressure Monitoring - as it doesn't appear to be a "mechanical" failure of pipe due to surge; 4. …; 5. ….

[73]

Mr Ferguson's first pipe failure report

On 12 September 2019, Mr Ferguson provided Sydney Water with a revised, formal "SPS0213 - DN600 CICL Failure Investigation Report" (at A41.001.106). Its executive summary was in the following terms: A DN600 1966 sewer rising main underwent a longitudinal crack failure in January 2019, near Prospect Creek, Carramar. The failed pipe exhibited a crack along the entire length of the 5.5m pipe length, with internal loss of metal, manifested as a smooth deep groove, possibly the result of erosion from fine particulate material. Brown staining of the lining had occurred, with significant degradation (loss of structural strength) of the lining occurring. Chloride ion attack is suspected with causing rapid deterioration of the lining. It was not possible to determine the orientation of the crack, although it was most likely either on pipe obvert or invert. It is recommended to conduct a Detailed Inspection of 3-4 sites around full circumference of main following a CCTV inspection to identify areas of potential loss of cement mortar lining.
Commenting on the conclusions of the 2007 report, this report observed (at A41.001.111): A failure was predicted to occur in 2023, with internal corrosion of pipe obvert due to acidic attack a contributing factor.
The report then addressed the then state of the pipe's wall defect as follows (at A41.001.117): 2.21 Thickness of metal The pipe exhibited two grooves along the inspected length of pipe - one deeper than the other of about 6-10mm wide, with as little 1-2mm at some locations, and the broader groove of up to 25‑30mm wide, and approximately 50% original wall thickness. The crack is contained within the deeper groove along the full length of inspected pipe (piece).
This was followed by a schematic - one presently unnecessary to reproduce (at A41.001.117). The report then said (at A41.001.120): 3 Cause of 2019 Failure The cause of the failure is from the significant reduction in pipe wall thickness on pipe invert. The reduction was due to mechanical movement of fine hard particulate matter (erosion or "scouring"). Pumping the sewage under a pressure of approximately 18m-head produces a hoop stress, exerting an outwards stress on pipe wall. The "residual strength" of the pipe wall (as a consequence of reduction in thickness) is not sufficient to accommodate the stress, and the pipe wall "cracks". The crack propagates along an extended length until arrested by the pipe joint. 3.1 Predicted Failure from 2007 Report PPS2258 Report predicted a failure at higher elevations due primarily to the reduction in pipe wall thickness as a consequence of internal acidic attack of pipe obvert. The acid was likely generated from oxidation of septic sewage. Accordingly, 2019 failure didn't occur as a consequence of this mechanism.
A footnote recorded that the location conclusion as being on the invert was deduced from observation - a location now agreed to be correct (SOAF at paragraph 49).
The preliminary conclusions drawn by Mr Ferguson and set out in this report were (at A41.001.094): Conclusions 1. Lining of failed pipe has been exposed to iron ions around full internal circumference; 2. Cement mortar lining has been chemically attacked -leaching calcium - possibly to some extent around full circumference - but as yet, undetermined; 3. Loss of total cement content of lining has occurred around 1/6 of pipe bore; 4. Reduced metal wall thickness within a narrow band - 6-10mm wide; 5. Surface of reduced wall is very smooth - indicative of erosion; 6. Cause of loss of calcium in lining is yet to be determined; 7. Chloride ion attack should be considered a likely suspect; 8. Cause of metal wall reduction is yet to be determined; 9. Likelihood of extended (but yet to be determined) length of both cement mortar degradation and metal wall reduction.
This report provided a "Summary of results" (at A41.001.122) in the following terms: From the information available to date, the failure mechanism of the most recent failure appears to have occurred through significant loss of metal thickness (scouring) caused by conveying relatively fine particulate matter. The source of this material is unknown, possibly being derived from a variety of sources. It's also considered likely that the occurrence of such scouring extends beyond the failure pipe, and will result in additional failures. It is however, noted that there also still remains a potential risk of failure on pipe obvert, at higher levels, as was indicated within the 2007 report.

[74]

Mr Ferguson's final pipe failure report

Mr Ferguson provided Sydney Water with a revised (and expanded) "Failure Investigation Final Report of SP213 SRM" dated 17 December 2019.
The executive summary of this report was in the following terms (at A41.001.132): A DN600 1966 cement mortar lined grey cast iron (CICL) sewer rising main underwent a longitudinal crack failure in January 2019, near Prospect Creek, Carramar. This rising main is known as SP0213 Pressure Main. The failed pipe exhibited a crack, on bottom of pipe, along the entire 5.5m length, with internal loss of metal, manifested as a smooth deep groove, probably the result of scouring from intermittent flow of fine particulate material, accompanied by minor external corrosion. The source of the fine particles was not determined. Brown staining of the exposed lining had occurred, with loss of calcium content, and associated loss of structural strength, where lining had been exposed to sewage (absence of seal coat). A combination of chemical attack by chloride ion or acid attack, where seal coating had been removed, along with scouring, is suspected of causing the deterioration of the lining. Based on available information to date, the likely cause of failure was due to a combination of significant reduction in pipe wall thickness of the pipe, and an increase in pressure at pump start‑up, causing a brittle fracture of pipe wall. A crack formed, at an area of high stress, and in turn, propagated along the full length of the individual pipe. The significant reduction in pipe wall occurred due to internal scouring. However, there may have been a minor, but contributing effect, of external corrosion. It is recommended to conduct a Detailed Inspection, using a combination of techniques, including the Pulsed Eddy Current (PEC) technique at 2 in-situ pipeline sites around a full circumference of pipe ideally following a CCTV inspection to identify areas of potential loss of cement mortar lining, as well as additional measurements and testing of failed pipe.
The portion of this report dealing with wall thickness of the failed pipe was in the following terms (at A41.001.150): 5.2.1 Area of reduced wall thickness The pipe piece exhibited two grooved areas along the "ragged" edge seen in Figure 19 - one deeper at about 6-10mm wide, with as little as 1-2mm remaining pipe wall at some locations. The broader groove was up to 25-30mm wide (less than 5% of circumferepipe (piece).
At 5.3.3, the report relevantly noted (at A41.001.154): 1. …; 2. Small surge pressure occurs during pump start‑up and shutdown; 3. …; 4. Crack occurred on bottom of pipe.
Part 7 of this report is headed "Cause of 2019 failure" (at A41.001.155). The entirety is reproduced below: 7 Cause of 2019 Failure Based on available information to date, the likely cause of failure was due to a combination of significant reduction in pipe wall thickness of a pipe, and an increase in pressure at pump start‑up, causing a brittle fracture of pipe wall. A crack had formed, at an area of high stress, and in turn, propagated along the full length of the individual pipe, along a path of least resistance. The significant reduction in pipe wall occurred due to internal scouring. However, there may have been a small contribution of external corrosion. The area identified in Figure 10, was likely the crack initiation location. Scouring was caused by movement of fine hard particulate matter during flow, producing variable extent of removal of pipe wall along the pipe invert. It was not possible to determine the source of the particulate matter. External corrosion eventuated where damaged, missing or thin coating had been in contact with external soil, and produced a small reduction in pipe wall. The pumped sewage under a pressure of 18m-head produced a hoop stress, which exerted an outwards stress on the pipe wall. Additional internal pressure loading during start‑up, may also have caused an impact load. The "residual strength" of the pipe wall (as a consequence of reduction in thickness) was not sufficient to accommodate the stress or impact, and the pipe wall "cracked" at point of highest stress (probably the thinnest wall). The crack propagated along the full length of pipe following the line of least resistance, until arrested at the pipe joint.
Part 9 of this report is headed "Conclusion" (at A41.001.158). For completeness, the entirety of Mr Ferguson's final report conclusions are reproduced below: 1. Pipe bore of (failed) pipe was exposed to iron ions around full internal circumference; 2. Iron ions were present in reduced state in operating pipeline (Fe2+); 3. Reddish-brown staining due to oxidation of iron II (Fe2+) compound to iron III (Fe3+) compound - oxide or hydroxide; 4. Degradation of lining has occurred as a combination of erosion and chemical attack (leaching calcium); 5. The period of this loss has not been determined; 6. Cause of loss of calcium in lining is yet to be determined; 7. Chloride ion or acid attack is considered a likely suspect; 8. Cement lining was originally coated with a seal coat, which afforded protection against chemical attack; 9. Cement lining has been preferentially attacked where seal coat was absent; 10. Erosion of metal has been a major contributor to loss of metal thickness; 11. Erosion (scouring) has been caused by transport of hard particulate matter during pumping; 12. The period of this erosion has not been determined; 13. Reduced metal wall thickness within a narrow band - 6-10mm wide - was on pipe invert; 14. Surface of reduced wall was very smooth - indicative of erosion (scouring); 15. Some minor external corrosion has also occurred, contributing to loss of wall; 16. There is a high likelihood of extended (still yet to be determined) length of both cement mortar degradation and metal wall reduction; 17. Internal pressure loading has caused the pipe to crack at high stress points; 18. High stress point likely to be area of thinnest wall; 19. This area has been identified near middle of pipe, where crack was widest; 20. Initially formed crack has propagated along full length of pipe - along line of least resistance; 21. Future failures expected as a consequence of the above failure mechanism.
Although Mr Ferguson made a number of recommendations (at A41.001.159), it is not necessary to reproduce them.

[75]

Mr Ferguson's oral evidence

Mr Ferguson was required for cross‑examination. His oral evidence was given on 1 September 2021. The first relevant portion was in the following terms (Transcript 1 September 2021, page 122, lines 20 to 45): Q. You see in the first paragraph there about halfway through, "The investigation primarily consisted of determining the soil corrosivity profile of the area and determining the extent of any internal corrosion." So that's the two different things that you are potentially looking at in this failure report. A. Correct. Q. The latter - so that's any internal corrosion, was performed using an NDT technique, and NDT stands for non destructive testing. Is that right? A. (No verbal reply) Q. It's, "NDT technique at a convenient high location along the pipe." Can I ask you in relation to that description of - I'm not so much concerned about the convenience, but the high location, you're carrying out the non destructive testing for internal corrosion at a high location, because that's where you anticipate there might be air pockets that might potentially corrode the pipe. A. Correct. Q. It's also correct, is it not, that since you are looking at air pockets that might not be acidic and corrode pipe, obviously the corrosion you are looking for is in the top of the pipe, or the obvert? A. Yes, it - it can be a little bit lower than that, it can come down from the obvert but, yes, that's fundamentally correct, it will be - be more inclined to be the spring line than above. Q. Sorry, did you say, "spring line"? A. "Spring line" being the middle of the pipe.
The second relevant portion was in the following terms (Transcript 1 September 2021, page 124, lines 25 to 28) Q. But importantly, the location that you are choosing on the pipe is one that's in a high point of the pipe because you are looking for a location that's likely to be a source of air pockets for the internal acidic corrosion. A. Yes, that's correct.
The third relevant portion was in the following terms (Transcript 1 September 2021, page 125, lines 4 to 24): Q. And you go over the page 13, please, or folio 18, and above the table there, you say, "Apart from the soil test results" - and I think apart is really in addition to, so you've got the soil test results and there were three other factors that you needed to consider for the probability of failure analysis. That's the presence of the imported backfill, the presence of the external barrier that we were just speaking about, and the likely occurrence of internal corrosion at high spots. Those were the matters you were taking into account to consider the probability of failure of this pipe. A. That's correct. Q. And you took all of those matters into account, and as we see underneath figure 13, this model takes into account the effects of internal corrosion, as measured by the non‑destructive testing inspection. That's the main scan inspection, correct? A. That's correct. Q. By taking all those matters into account in this report as you have, you came to a conclusion that by about - I think the date has been said to be about 2023. By about 2023, there was a 10% probability of failure or there is the potential for a single failure. A. Yes, that's correct.
The fourth relevant portion was in the following terms (Transcript 1 September 2021, page 125, line 33 to page 126, line 21): Q. But this tells us that having carried out the soil data, looked at these materials, knowing there's a coating, looking for internal corrosion in high spots, there's a 10% chance of a failure of this pipe by 2023. A. There a 10% annual probability of failure in that - in that year. The way you interpret the graph actually, it's the area under the probability curve. When it reaches 100%, it equates to the likelihood of a failure. The accumulation on a year by year, the percentage for the year reaches 100%, and that's when we predict the failure, annual probability. Q. So if I then ask you to go, please, to your page 14 - no, sorry, I want you to go to your page 15, the conclusion, folio 20. The conclusion of this report was that the soils are moderately corrosive. There's some sand in the backfill in the soils. The main is not at high risk of external corrosion failure. The main will be at a future risk of internal corrosion in the medium term. Can I just ask you that. That's internal corrosion failure at high points due to acidic gas attack. A. Yes. Q. And the medium term is the term that you've demonstrated or described in figure 13 that we were looking at earlier. A. That's correct. Q. And that is, there is a risk, but in 2007, predicted not to be before about 2023. A. Yeah, I mean, it - because there's some ranges - because there's some variability of ranges in some of the input data than in real terms, that can occur. I would say, plus or minus five years. Q. But in terms of the description there of the medium term, that that the opinion that you were expressing through the words, "medium term", reflects the term that you had otherwise shown diagrammatically in the graph in figure 13. A. Correct. Q. And then five, "The risk is greatest at high points where air accumulates." Again, I don't want to be repetitive but just to make sure we are absolutely, clear, that is, the risk of the internal corrosion is greatest at the high points of the pipe where the acidic gas can accumulate. A. That's correct.
The fifth relevant portion was in the following terms (Transcript 1 September 2021, page 126, line 30 to page 127, line 17): Q. And you are aware that it failed not as a consequence of internal or external corrosion, but failed because of internal erosion. A. That's my understanding, yes. Q. And in terms of where the erosion caused the failure to the pipe, whereas that the internal corrosion, we have been looking at the invert, or at least focusing on the spring line, the erosion event occurred - sorry, I said that the wrong way. Although in relation to the internal corrosion, you were focusing upon the obvert, the top of the pipe or above the spring line, the actual erosion event occurred in the invert, the bottom of the pipe. A. That's correct. Q. And thirdly, although, in terms of a consideration of the internal corrosion, you were looking at high points where the air might accumulate, the actual breach occurred at a low point in the main. A. That's correct. Q. Sir, do not take this as a criticism. It is a question. Your condition assessment report did not consider the probability of failure from a combination of events which was erosion of the invert at a low point of the pipe. You didn't do that. A. That's correct. Q. Can I ask why you didn't consider in that probability of failure report the possibility of erosion of the invert at a low point of the pipe? A. Put simply, I hadn't experienced it before in failure, and wasn't aware that that mechanism would lead to a failure. Q. Sir, to be fair to you, it wasn't just you that wasn't aware. Was there any knowledge in the industry that you were aware of, firstly in 2007, of the potential failure of cast iron rising mains from erosion in invert at the low point of the pipe? A. I certainly wasn't aware of them in 2007. As a general - I mean, sewer pipe failures don't really see - aren't - the failure of the rising mains is not well publicised in the public arena. By and large, I've fallen back on my own personal experience as being - and in my role at Tubemakers and working with Sydney Water, Department of Water, and Melbourne Water, I've looked at several hundred failures, most water. So therefore I hadn't come across. Other colleagues that work for the water authorities weren't aware of it either, so back in 2007 it probably wouldn't have been a consideration. Since that time, however, I have changed the methodology and what we're looking for, largely influenced by the failure at Carramar.
The sixth relevant portion was in the following terms (Transcript 1 September 2021, page 128, lines 18 to 22): Q. ….. I'll start with the state of your knowledge - whether I'm talking about 2007 or 2017, indeed, prior to this failure in 2019 you would not be looking for the potential for a probability of failure caused by internal erosion of the invert. A. That's correct.
The seventh relevant portion was in the following terms (Transcript 1 September 2021, page 128, line 40 to page 129, line 7): Q. Then at 144, "So I think that the - we were of the view in those days that the internal corrosion would only manifest itself on the - on the top side of the pipe. In those days, that" - I want to suggest any day that was prior to you becoming aware that the pipe in these proceedings failed because of erosion of the invert. A. Yes, that's correct. Q. Because you then say, "It probably changed a little bit recently. We - if we - if we've done this now, we would have gone a little bit further down," and that is because of what you would now know as a consequence of the failure of this pipe. A. Yes, and related to that point, we had changed the methodology of the condition assessment of sewer rising mains as a consequence of this failure. Q. Yes, so if a probability of failure report, or whatever one might want to call it, was to be prepared in any time after this failure in 2019, in your expert opinion, it should take into account the potential for erosion of the invert. A. Yes. ….
The eighth relevant portion was in the following terms (Transcript 1 September 2021, page 130, lines 17 to 32): Q. …... I think I had asked you about 144. I want to go to 145 now, please, so you say, "And as a matter of fact, if we knew what we know, knew from the failure, we would have gone all the way around it," so that, if I understand it correctly, sir, is saying, once you gained the knowledge that you did from the failure the subject of these proceedings, you would have gone a different way about checking for the potential failure of the pipe. A. Yes, we would have specifically looked for it. Q. And at 146, you were asked, "Whose decision was it in relation to the rationale?", that is, whether you did or didn't go all the way around the pipe. Do I understand it correctly, your answer there, to say, "It would have been my recommendation and Sydney Water would have agreed," that is, at the time, with the state of knowledge that you had, the recommendation was only that you needed to use the main scan to measure about the spring line of the pipe. A. Yes, that's correct, and my recollection is that that was the general methodology we had in place for inspecting sewer or rising mains at the time.
The ninth relevant portion was in the following terms (Transcript 1 September 2021, page 131, lines 1 to 30): Q. I didn't mean to mislead you there, Mr Ferguson. I apologise if I did, so the answer to 152, "I don't think - yeah. I think it was mainly that just the - the most likely problem was going to be in that area of the pipe," that is, above the spring line. Is that right? A. Yeah, that would be my understanding. Q. "And certainly, from memory, I don't recall there being a problem with a pipe on the bottom or the sewer pipe before this," and when you say you don't recall from memory, you don't recall from memory there ever being a problem with the pipe on the bottom or the sewer pipe before the breach the subject of these proceedings. A. Yes, that's correct. I - I never saw one. Q. Would a fair description of the circumstances you saw on this pipe in 2019 - would you describe it as unique, in your experience? A. Yes. Q. And in fact, you've said in a couple of places that it was a change and it changed the way you were then going to make recommendations for the carrying out of failure probability assessments. Can I suggest to you that it was more than just you. This incident sent ripples through your industry as to how to react to this new kind of failure. A. Look, I'm really not in a position to comment on that, to be quite honest. I've spoken to several people, cause this - this failure was unique in quite a few areas. You'll probably raise some of those, I would imagine, later in the questioning. Of those, they are basically people who have some experience with - with sewer pipe failures. There was one in Queensland, a former colleague of mine, who had experienced situations similar to this in Queensland, but none of the others in New South Wales and Victoria have.
The final relevant portion was in the following terms (Transcript 1 September 2021, page 132, lines 10 to 27): Q. …. Can I ask you, I want you to assume you were asked to update your probability failure report you'd done in 2007 in 2017, so before the failure the subject of these proceedings. If you can put yourself in the position in 2017, would you have recommended the carrying out of CCTV inspection of the rising main? A. Possibly. Q. And what changed between seven and 17 that meant you possibly might do it? A. The big difference is, if you go back to what I said before, every technique has its limitations, and provides very extended information. The current NDT techniques have their limitations. That's what I mentioned before. So does CCTV, but if it was possible to do it and you could get clear pictures, it would be worthwhile. Q. But again, of course, in 2017, being prior to the incident the subject of these proceedings, you wouldn't be looking - you might discover it, but you wouldn't be looking for erosion in the invert. A. No, that's correct.

[77]

The Prosecutor's submissions

Sydney Water carries the burden of proof that its EPL permitted the pollution from the rising main by virtue of the operation of s 122(1) of the POEO Act.
The Prosecutor submitted that the licence contained six relevant conditions, not three. The Prosecutor submitted that conditions L1.1, L1.2, L1.3, and L1.4 should be considered separate conditions rather than a single condition composed of sub-conditions. The other two relevant conditions identified by the Prosecutor were conditions L7.4 and O2.1.
The Prosecutor submitted that condition L7.4 did not expressly authorise pollution events from either the rising main or the pumping station because it interacted with condition L1.1. The Prosecutor identified that condition L1.1 required the licensee to comply with s 120 of the POEO Act. The Prosecutor contended that there was no provision that permitted a licensee to release pollution into the environment, and condition L7.4 was no exception.
The Prosecutor advanced the proposition that there was a difference between dry weather overflows reaching waterways and the pollution of waters. The former is defined in the special dictionary of the licence, while the latter is defined in the POEO Act (and is prohibited).
The Prosecutor submitted that Sydney Water could not establish that condition L7.4 regulated the pollution event because the scheduled activity, as defined in the dictionary of the POEO Act, identified that the licence was for the treatment of sewage, not the discharge of pollution, with the relevant provision of the POEO Act identified as item 36 of Sch 1 of that Act. The Prosecutor continued his submission regarding item 36, explaining that it "involves the discharge or likely discharge of wastes or by-products to land or waters." "Waste" was a term defined in the dictionary as "any substance discharged in the environment in such volume, constituency, or manner as to cause and alteration to the environment". This formed the evidentiary basis for the Prosecutor's submission that the licence authorised sewage treatment as the scheduled activity.
It was conceded by the Prosecutor that condition L1.1 contemplated the pollution of waters could be authorised by other conditions and that s 44(2) of the POEO Act also contemplated that licences could regulate permitted water pollution for scheduled activities or scheduled development. The Prosecutor then considered the effect of s 122(1) on the regulation of the pollution of waters through a licence. The Prosecutor accepted that this licence regulated the pollution of waters, through conditions L1.1 to L1.4. However, to access the defence in s 122(1), the Prosecutor proposed that Sydney Water bore the burden of proving that the conditions of the licence were not contravened. So, in this case, Sydney Water bore the burden of proof that it did not breach conditions L1.1 to L1.4 on the balance of probabilities. The Prosecutor then directed me to the special dictionary to the licence, where it stated that the cause of the pollution must not be the result of a failure to maintain the reticulation system, in this instance, in a "proper and efficient condition". This, the Prosecutor submitted, was relevant for condition L1.3.
The Prosecutor took me to Duggan J's decision in Bartter (No 3) and submitted that it would assist the Court in determining the meaning of the phrase "maintain plant in a proper and efficient condition" within condition L1.3(ii). The Prosecutor submitted that Duggan J had dealt with a similar issue in Bartter (No 3) and that her Honour's decision should be applied as it addressed the "state" of the equipment. Application of her Honour's decision would result in conditions L1.3 and O2.1 (which has a similar effect to condition L1.3 as submitted by the Prosecutor) being regarded as contravened when sewage escaped from the rising main between 14 and 16 January 2019. Sydney Water could not establish that it did not contravene these licence conditions.
The Prosecutor opined that Sydney Water would put forward a use of "manner" or "way" for the word "condition" for the phrase "maintain plant in a proper and efficient condition". The Prosecutor continued arguing there was clear evidence Sydney Water accepted that the rising main was not to be permitted to fail; knew the rising main was "critical plant"; was old; and was vulnerable to physical stresses such as those from water hammer. Because of the state of the rising main, prior to and at the time of the sewage escape, there was a high risk of failure that Sydney Water would have known about but did nothing to prevent. As a consequence, even with the construction of the word "condition" that was suggested would be used by Sydney Water for conditions L1.3 and O2.1, the Prosecutor submitted that Sydney Water failed to maintain the rising main in a "proper and efficient condition".
The Prosecutor argued that, had Sydney Water maintained the rising main in "proper and efficient condition", there would be little likelihood any of the charges would have been laid because Sydney Water's knowledge of the failing condition of the rising main would have led to preventative maintenance.
The Prosecutor submitted that Sydney Water bore the onus of proof that condition L7.4 of the licence could give rise to any defence against a "pollute waters" charge from the failure of a rising main.
The Prosecutor made the submission that condition L7.4 was unique in that many of the elements that it contained had their own special meanings as defined in the special dictionary of the EPL. Another unique characteristic of this condition was that the concept of dry weather overflow was included with its "very particular technical meaning". However, unlike "pollution of waters", in condition L7.4, which finds expression within the POEO Act, having the same meaning as that found in Sydney Water's EPL, the concept of dry weather overflow does not. The Prosecutor submitted that "pollution of waters" and "dry weather overflow reaching waterways" were two different concepts and condition L7.4 limited the latter and was a prohibition separate to "pollution of waters" - constraining the dry weather overflows to 122 or fewer in a reporting period. The Prosecutor continued submitting that dry weather overflows did not permit the pollution of waters, nor any biological, chemical of physical alteration of the receiving waters, especially as it related to condition L1.1.
The Prosecutor submitted that a dry weather overflow reaching waters did not necessarily result in the alteration of the biological, chemical, or physical conditions of the receiving waters.
I raised the issue with the Prosecutor that there has been the suggestion that even the release of potable water can be considered pollution of waters if it causes an adverse impact on aquatic biota because of the difference in water properties. The Prosecutor responded that there were two concepts involved. The first involved the flow from the source over a distance but did not require an impact on any receiving waters. The second did not involve the movement; but prohibited the impact on the receiving waters. This translated into the difference between condition L7.4, concerned with dry weather overflow, and the separate issue of pollution of waters. The Prosecutor submitted that conditions L1.1 to L1.4 were separate conditions and not one condition in parts. Therefore, condition L1.1 prohibited the pollution of waters, condition L1.2 added further restrictions and condition L1.3 identified the pollution of water events that were not permitted.
The Prosecutor submitted that condition L7.4 was a separate prohibition to those encompassed by condition L1. I questioned the Prosecutor as to the operation of condition L7.4 and whether its operation meant that dry weather overflows must not pollute the receiving waters if it was within the cap set for these events. The Prosecutor replied in the affirmative, saying that was the case. I then enquired of the Prosecutor if he agreed with the statement that as long as the number of dry weather overflows was within the cap set by condition L7.4 then each event must be a dry weather overflow reaching a waterway that does not affect the receiving waters. He responded in the negative, saying there were two factors at play because the drafters of the licence had identified dry weather overflows as a separate condition from the pollution of waters. This was exemplified by the fact that a dry weather overflow that did not reach waters could occur - in other words, a preliminary event that might or might not result in the pollution of waters.
The Prosecutor referred to s 63(2) of the POEO Act when he quoted "a condition cannot be attached to a licence" and he expressed his concern that compliance with a licence condition could result in permission to breach the POEO Act. The Prosecutor submitted that the subsection must be read down for it to work harmoniously with the licensing power in Ch 3. He submitted that this was especially important for those activities, like sewage treatment, which carry an inherent risk of water pollution and are subject to conditions, as in subs 63(2), that must necessarily be read in conjunction with the licensing power in Ch 3. The Prosecutor submitted that Pepper J made a similar observation in her dicta in Environment Protection Authority v Queanbeyan City Council [2010] NSWLEC 237 (Queanbeyan) at [157] and [158]. Reading down s 63(2) to account for the licensing power, while still providing work for the subsection to do, was consistent with s 63(2) being involved in the construction of condition L7.4 while still permitting pollution of waters for sewage treatment, a scheduled activity, it was submitted. Therefore, the Prosecutor submitted, condition L7.4 did not expressly allow the pollution of waters because it did not satisfy the requirements of condition L1.1.
I questioned the Prosecutor again on whether any dry land overflow reaching a waterway must necessarily cause water pollution unless it was of identical biological, chemical, and physical characteristics as the receiving waters. The Prosecutor replied that it did not, but he could not identify any authority for that proposition. He submitted that it was through the proper construction of condition L7.4 which did not expressly allow for the pollution of waters, and that dry weather overflow was necessarily an antecedent to, and separate from, any pollution of waters event. I quoted condition L7.4, which is in the following terms: [i]f that dry weather overflow reaching a waterway does not act in a fashion which causes no change in the receiving waters.
I put to the Prosecutor that the words of condition L7.4 must necessarily result in pollution of waters unless the exception were met. The Prosecutor submitted in response that I was going beyond the words of the condition and was examining what might happen as the result of the dry weather overflow reaching a waterway. It was simply that the overflow reached a waterway.
The Prosecutor turned to the requirement to produce annual sewage treatment reports to the EPA. He identified the section of the report that dealt with the "number of dry weather overflows to waterways for the whole system and for each catchment", the comparison with the previous four 12-month periods of dry weather overflows to waterways, and the total number of dry weather overflows. The Prosecutor submitted that this information showed an impact on the waterway was not the concern, just that the overflow had occurred, because there was no requirement to report an impact on receiving waters.
The Prosecutor also submitted that reporting on the number of dry weather overflows was a much simpler measure than the sampling and analysis to determine the pollution of waters. I asked whether condition L7.4 provided a shield for dry weather overflow events that occurred prior to the 123rd dry weather overflow event - assuming no other regulatory condition had been violated. The Prosecutor agreed that, barring any other breach of a condition, it was the 123rd dry weather overflow event that triggered a breach of L7.4 for the number of overflows reaching waterways.
I questioned whether condition L1.1 was one condition or four, to which the Prosecutor responded with the submission that it was four to be read sequentially. I then asked the Prosecutor about the chapeau in condition L1.3, which read "[t]he provision of the condition above" and whether it was concerned with conditions L1.1 and L1.2 or just condition L1.2. The Prosecutor's submission was that it only related to condition L1.2 because the chapeau was written in the singular.
The Prosecutor submitted that condition L1 was a heading with four individual conditions, L1.1 to L1.4, listed under that heading.
The Prosecutor summarised his submissions regarding condition L7.4, submitting that it did not authorise the pollution of waters. He supported this position by submitting that there were no words in the condition that expressly stated that pollution of waters was permitted and did not refer back to condition L1.1. Condition 7.4 was only concerned with dry weather overflows reaching waterways for reporting purposes; it was different from the pollution of waters prohibition contained within the POEO Act; and, the Prosecutor submitted, operated in a different period of time compared to the time period during which the pollution of waters event occurred during 14 to 16 January 2019 - the time period when s 120 was breached.
Both conditions L1.3 and O2.1A, considered together, in the Prosecutor's submission, were concerned with the maintenance of the equipment in a "proper and efficient condition". The Prosecutor submitted that the expressions in both conditions had the same meaning.
The Prosecutor turned his attention to s 122 of the POEO Act which had been raised as a defence by Sydney Water. The Prosecutor addressed the word "maintain" as it related to the phrase "must be maintained in a proper and efficient condition". He conceded that the word "maintain" may have different meanings based on its context; however, the Prosecutor favoured the meaning that was applied in Bartter (No 3) - being "to keep or preserve". The Prosecutor submitted that Bartter (No 3) would assist my determination in the present case. I reminded the Prosecutor that the circumstances in Bartter (No 3) were not the same as in the present case because Bartter (No 3) was concerned with the failure to replace a part when reassembling a piece of equipment. The Prosecutor responded, submitting that it was a matter of construction of the instrument in this case that was the important consideration ensuring the instrument's obligations were applied. Therefore, application of her Honour's conclusions in Bartter (No 3) would result in a proper construction of the words contained in condition O2.1A because the wording of the licence in Bartter (No 3) was identical to that in the licence in this matter.
The Prosecutor submitted that, for the rising main, it was the duty of Sydney Water to maintain, keep it, or preserve it in a condition where the rising main would perform its environmental function and not split and release sewage. Thus, he submitted, it was the failure to maintain the rising main in a proper and efficient condition which resulted in the breach of the conditions for the rising main offence.
The Prosecutor submitted that following Duggan J's conclusions in Bartter (No 3) was the appropriate course for interpretation because her Honour's decision had been approved and adopted in Environment Protection Authority v Charlotte Pass Snow Resort Pty Ltd [2021] NSWLEC 37 (Charlotte Pass Snow Resort) by Pepper J. The Prosecutor submitted comity would lead me to determine the proper construction of the licence in this matter and Sydney Water would not be able to demonstrate that the reasoning in Bartter and Charlotte Pass Snow Resort was "plainly wrong". Therefore, he submitted, the proper construction of "maintain" in this case was an obligation to keep the rising main in a proper and efficient state.
The Prosecutor drew my attention to the "objectives" clause of the licence, A1.4. He submitted that the objectives were plainly of a nature that was concerned with the protection of nature that would be satisfied if the rising main performed its function of conveying wastewater and sewage without harm to the environment. I enquired of the Prosecutor if he accepted the proposition that a failure of the rising main could occur that did not breach the requirement, to which he responded that he could not think of any possible circumstance where a failure of the rising main did not breach the requirement. I then queried the Prosecutor whether an earthquake that damaged the rising main, such as the damage that occurred to Newcastle's sewage system, and whether Mr Hemmings' client would be held in breach for such an event. The Prosecutor responded with the submission that, as a result of such an event, a regulator that brought a charge for a breach of condition O2.1A would be dealt with by the Court in short order, and a conviction would likely not be recorded, being an event out of the control of Sydney Water. I then enquired if the Prosecutor accepted the proposition that such a circumstance would extend to any adverse impact that was not reasonably foreseeable. The Prosecutor submitted that the obligation would extend to a such matters, but if foreseeability was at issue then what was done to avoid the breach would be considered by the Court.
The Prosecutor proposed that Sydney Water bore the burden of proving that it did not breach the licence conditions. Sydney Water was required to establish that it did not pollute waters in contravention of the licence. Condition L1.2 specifically related to the pollution of waters and, therefore, Sydney Water had to prove a case on the balance of probabilities that the discharge from the rising main was a discharge from a component of the reticulation system that was identified on the system map.
The following day, the Prosecutor returned to the question of foreseeability that I had raised with him. He submitted that, in the matter here, there was no element of the offence of polluting waters where foreseeability was enlivened. The Prosecutor submitted that this was a strict liability offence and, therefore, there was no component of foresight of possible consequences within reckless behaviour that might serve as a defence. The only possible defence, the Prosecutor submitted, was that of "honest and reasonable mistake of fact" if Sydney Water raised it. The Prosecutor continued, saying that there was no element of the subs 122(1) defence that included a lack of foreseeability. Therefore, the Prosecutor argued that there was no element of the lack of foreseeability for any of the conditions. He opined that the only potential involvement of foreseeability might occur in condition L1.3(ii) if the interpretation of that sub-condition was of the effect "to perform maintenance in a proper and efficient matter," which he submitted was not an interpretation available to Sydney Water and would be an erroneous construction of the phrase.
The Prosecutor submitted that there would not be a breach of condition L1.3 if the failure of the pipe was not a result of a failure to maintain. There would be no pollution of waters that was the result of a dry weather overflow because the failure would not be due to a failure to maintain; however, those were not the conditions of the present matter; the rising main failed because of a failure to maintain on the part of Sydney Water.
The Prosecutor made the concession that the licence was poorly drafted in places. However, he submitted there was a method to determine the proper construction of the licence provisions. He argued that the proper construction was that which allowed harmonious operation of the licence provisions with each other and with the legislation. The Prosecutor referred me to Plaintiff S297-2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179 as authority for this submission. He quoted [25] from the joint judgment of Crennan, Bell, Gaegler, and Keane JJ: 25 Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible in the manner indicated in Project Blue Sky Inc v Australian Broadcasting Authority, "by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of provisions while maintaining the unity of all the statutory provisions".
The Prosecutor returned to conditions L1.1 to L1.4 in relation to how they were to be read and stated they were related to each other. He submitted the licence conditions related to pollution of water for the purposes of s 122 of the POEO Act. He argued condition L1.1 formed the overarching rule regarding the pollution of waters and the subsequent conditions narrowed in focus down to condition L1.4. Because the conditions became increasingly narrow in focus, the Prosecutor submitted they should be read and applied sequentially.
The Prosecutor identified that condition L1.1 referred to the obligation to comply with s 120 of the POEO Act. He identified that Ch 3 of the POEO Act contained the provisions that govern the creation of a licence and Sch 1 of the POEO Act listed those activities that were required to have a licence should a person engage any of those activities. Condition L1.2 was submitted to say two things: 1. As long as other conditions of the licence were complied with, discharges were allowed from components of the reticulation system if they were identified on the system map; and 2. Discharges from components that were not identified on the system map were prohibited.
The Prosecutor continued, submitting that Sydney Water must prove the rising main was identified on the system map as a component of the reticulation system from which discharges might occur, pursuant to condition L1.2. The Prosecutor then turned to condition L1.3 and made the submission that a failure to maintain the reticulation system or its parts in a "proper and efficient condition", as identified in Bartter, would be a breach of this condition. He further submitted that Sydney Water could not establish that there was not a failure to maintain in a proper and efficient condition pursuant to subs 122(1) and condition L1.3. He also made the submission that condition L1.4 did not apply to the charge of the rising main.
The Prosecutor took me to condition L5.5 where the concept of dry weather overflows appeared again. His submission was that, in relation to condition L5.5, condition L7.4 was to guard against events antecedent to pollution of waters, "namely dry weather overflows from the sewage treatment system". He made the additional submission that, if I were against him in his primary submission, I would need to take account of the fact that not all dry weather overflows reaching waters resulted in pollution of waters.
The submission was made by the Prosecutor that the potential for alteration of a receiving waterway will lie in the facts of the case. He hypothesised that, in some instances, water samples may not indicate alteration of the receiving waters due to an intrusion of an overflow event. For a substantial waterway or a minimal intrusion from an overflow that reached the waterway and only intruded minimally, the de minimis principle might have effect: the alteration so trifling that it did not warrant a criminal offence. The Prosecutor offered Williams v The Queen (1978) 140 CLR 591 (Williams) as authority for his proposition because, in Williams, the Court applied the de minimis principle to its maximum effect for its decision that the amount of cannabis found in the accused's jacket was too little to warrant a criminal conviction.
I questioned the Prosecutor as to the criminality of the 123rd dry weather overflow event, even if it did not pollute waters. The Prosecutor responded with the submission that the 123rd event did create the offence and was separate from pollution of water. He submitted that the words of the condition identified dry weather overflow reaching waterways as the offence for which protection was provided, pollution of water was separate.
The Prosecutor reiterated his submission that condition L7.4 (dry weather overflow events) did not "trump" condition L1.3 (the requirement to maintain in a proper and efficient matter). He submitted that condition L1.3 acted as a gateway for condition L7.4 - the latter should not be considered unless condition L1.3 had been satisfied. In other words, if the components of the reticulation system were not maintained in a proper and efficient condition, then condition L7.4 does not, and could not, permit pollution of waters resulting from a dry weather overflow.
I asked the Prosecutor if he conceded that if the condition L1.3 "gate" were open, then condition L7.4 barred prosecution for events that also did not contravene condition L1.3, to which the Prosecutor agreed in the affirmative. The Prosecutor clarified his position that condition L7.4 could not permit pollution of waters resulting from a dry weather overflow event if the reticulation system were not maintained in a proper and efficient manner as required by condition L1.3.
The Prosecutor submitted, in the alternative to his primary submissions, should I be persuaded the decisions of Duggan and Pepper JJ were manifestly incorrect and I was to favour the construction of the obligation to be "to perform the action of maintenance in a proper and efficient way", then the submission was that Sydney Water's Asset Management Plan required Sydney Water to maintain the structural integrity for repair and renewal of deteriorating sewers and required monitoring of the condition of sewers. He submitted Sydney Water was also required to assess the risk of failure and implement a plan to halt their further deterioration. The Prosecutor argued that Sydney Water had an avoidance of failure program that required routine condition inspections which was used to help assess the remaining service life of reticulation system components. He submitted Sydney Water's maintenance performed on the rising main was subpar to its own maintenance program standards. This rising main had been classified as having the fifth highest risk of failure within the entire system - a system totalling 677 pressure mains. He submitted the only maintenance that appeared to have been performed, from the evidence, was the fixing of leaks when they occurred.
The Prosecutor submitted that, on evidence from Dr Martens, there was nothing before the Court that indicated Sydney Water had taken remedial action in relation to preventing deleterious impacts from water hammer on the rising main.
The Prosecutor made the submission that it was irrelevant as to what factors caused the thinning of the wall of the rising main. The operable factor in this matter was that Sydney Water had been on notice of the risk of the rising main failing due to reduced wall thickness and the impacts of increased internal pressure during start‑up, shut‑down, and from water hammer.
The Prosecutor submitted Sydney Water had the ability to construct a redundant, parallel rising main that would have alleviated pressure on the current rising main and into which effluent could have been diverted when the split occurred. The unchallenged evidence from Dr Martens regarding CCTV inspections would have identified indicators of the thinning wall leading to the conclusion there was a reasonable likelihood of failure. Sydney Water should have known about the thinning wall of the rising main and the impacts of increased pressure from normal operation, start‑up, shut‑down, and water hammer on the rising main. The failure of the rising main was not an unforeseen or unforeseeable event.
The Prosecutor next addressed the proportionality element and submitted that Sydney Water had alternatives to the "necessity" argument that the offence had to be committed to avoid harm. The alternatives were to maintain the rising main in a proper and efficient manner, so the rising main did not rupture, and to maintain the valve in good working order so that it could have reduced the pressure on the rising main if necessary.
The Prosecutor submitted that, even though there were differences in the estimation from the experts of the sewage discharge volume from the pumping station, the discharge from the pumping station was significantly greater than the discharge from the rising main. As a result of the discharge differential, the extent of the water pollution resulting from the discharge from the pumping station was equal to or, likely, greater than the discharge from the rising main. So, while Sydney Water pleaded a defence of necessity, the Prosecutor submitted that there were alternatives which would not have resulted in the release of sewage from the pumping station, which increased the harm to the local environment and waterway.

[78]

The submissions for Sydney Water

Mr Hemmings outlined Sydney Water's response to each of the three charges at the commencement of his closing address. For the rising main charge, Mr Hemmings submitted that the licence authorised the offence and Sydney Water was also entitled to a defence of "honest and reasonable mistake". Here relevant, he turned to address the detail of Sydney Water's defences to the rising main charge.
Mr Hemmings submitted that the licence authorised pollution of waters if Sydney Water had complied with the other requirements of its EPL. He gave the example of deep-water ocean outfalls which were permitted under licence requirements. This submission was in response to the Prosecutor's submission that neither s 63 of the POEO Act nor condition L7.4 allowed pollution of waters.
Mr Hemmings advanced the argument that the purpose of an environmental protection licence was to grant permission to pollute under prescribed circumstances. In this instance, the prescribed circumstance was pollution that occurred because of dry weather overflow, pursuant to condition L7.4. He continued proposing that an authorised discharge permitted by condition L7.4 could not be an aggravating factor for sentencing. Mr Hemmings submitted that a condition L1.3 discharge would not be lawful if the discharge resulted from a failure of Sydney Water to conform with its obligations. Mr Hemmings took me to Pain J's decision in Environment Protection Authority v Sydney Water Corporation [2020] NSWLEC 153, at [37], a paragraph in the following terms: 37 Condition L1.1 requires compliance with s 120 of the POEO Act except in circumstances expressly provided for in the EPL. The overflow was an authorised discharge per Condition L7.4, meaning it cannot amount to an aggravating circumstance. Condition L7.4 authorises 142 dry weather overflows per reporting period, however under Condition L1.3 a discharge will not be lawful if it can be discerned that the cause of the pollution was a relevant failure on Sydney Water's behalf, such as a failure to operate any part of the reticulation system in a proper and efficient manner or a failure to maintain any part of the reticulation system in a proper and efficient manner. That obligation sits across the ability to lawfully pollute. A failure to comply with obligations under Condition L1.3 is not the subject of a charge. Condition L7.2 relates to wet weather overflows, unlike this dry weather overflow, but shows a fundamental acceptance by the regulatory authorities that pollution events are inevitable. There are no limits on wet weather overflows. Sydney Water's EPL anticipates the inevitability of discharges and expressly allows them, subject to the operation of the EPL as a whole.
This paragraph, Mr Hemmings' submitted, meant that condition L7.4 allowed dry weather overflows which resulted in pollution events, provided the other applicable requirements of the EPL (here condition L1.3) were satisfied. In this instance, that condition was satisfied.
Mr Hemmings took me to the decision of Pepper J in Queanbeyan, where her Honour was dealing with a licence condition that allowed 18 dry weather overflows and how the issue of chokes impacted upon that allowance. He submitted that both Pain J's and Pepper J's determinations contemplated and allowed dry weather overflows if there was compliance with other relevant conditions in the relevant licence. Mr Hemmings submitted that this was the proper approach to the construction and application of condition L7.4. Mr Hemmings also made the submission that there was no ambiguity in the licence as argued by the Prosecutor. Mr Hemmings added that the rule of last resort, though it was well‑accepted principle, was that where ambiguity does exist at the conclusion of the construction exercise, that doubt should be resolved to favour the defendant. He concluded that this exercise would not be required in this instance as the combined operation of the licence conditions was clear.
Mr Hemmings accepted the Prosecutor's submissions on the principles of interpretation and submitted that they also apply to the interpretation of the licence. Interpretation was conducted in a manner that would promote the objectives of the licence in addition to the scope and purposes of the licence, he submitted. Mr Hemmings argued the objectives were instructive because they did not identify the prevention of pollution among them. He continued, submitting the licence expressly contemplated that pollution would occur from Sydney Water's sewer system; that was the subject of the licence along with the minimisation of those anticipated pollution events. The minimisation of pollution events was contemplated in three ways. First, through the proper and efficient management of the system and its components. Second, through the minimisation of harm to the environment and public health (he noted that to prevent pollution was not listed). Third, the licence identified that overflow frequency and volume were to be minimised by setting a limit. Therefore, Mr Hemmings submitted, the proper construction of these three objectives was to minimise, not prevent, harm to the environment and public health by minimising dry weather overflow frequency and volume.
Mr Hemmings turned to the definition of "overflow" in the special dictionary of the licence, which was identified as "a discharge of untreated or partially treated sewage" from a sewage treatment plant, which was also defined in the special dictionary. Mr Hemmings identified the two types of discharge that are defined in the special dictionary: "directed" or "uncontrolled". Mr Hemmings quoted the definition of "directed overflow": A directed overflow structure within the reticulation system and directed overflow structure, itself, is defined to mean a designed structure, excluding access chambers, in the reticulation system, which operates as a relief to allow sewage to discharge at a planned location, or a sewage pumping station, but does not include a bypass from the sewerage treatment plant.
Mr Hemmings submitted that the definition of a directed overflow acknowledged that specific locations within the reticulation system were designed to be points of discharge. Mr Hemmings contrasted "directed" with "uncontrolled" overflows. The latter was a discharge from any location within the reticulation system that was not directed overflow.
Mr Hemmings submitted the EPL expressly contemplated and allowed the discharge of untreated or partially treated sewage. The discharges could be directed, from identified locations within the reticulation system, or uncontrolled, from any location within the reticulation system, that was not attributable to a directed overflow. Mr Hemmings continued, saying the licence provided an exception to compliance with s 120. Mr Hemmings submitted condition L1.2 was drafted in a similar way to condition L1.1 which mandated the compliance with s 120. However, he submitted, the only way to properly understand condition L1.2 was in the context that directed overflow locations identified on the system map were exceptions to the prohibition on discharges
Mr Hemmings submitted that, on his reading of condition L1.2, the designed, directed overflow locations were the starting point of the exercise. Condition L1.2 allowed discharges from these locations, but these discharges had other conditions that were to be satisfied. Mr Hemmings submitted the rising main was neither a designed overflow point nor a direct overflow structure. He continued that the conditions applied sequentially - condition L1.1 - do not pollute waters; condition L1.2 - you could pollute waters from directed points; and condition L1.3 - operated as an exception to conditions L1.1 and L1.2.
Mr Hemmings submitted condition L1.3 had a textual indicator that designated its status as an exception to conditions L1.1 and L1.2, "notwithstanding the provisions of the condition above". He continued his submission, arguing that condition L1.3 had work to do for both conditions L1.1 and L1.2. He proposed this must have been the case, otherwise he would be able just to state that he had an exception to pollute waters. He continued, proposing that if condition L1.3 did not have any work to do regarding condition L1.1, then it did not connect to s 120. If condition L1.3 only acted against condition L1.2 then there was no need for condition L1.3(a) - uncontrolled overflows, which, he submitted, were not part of the identified locations for discharges within the reticulation system
Mr Hemmings continued his examination of the construction of condition L1.3. He identified that the language of the condition was in the negative and submitted that it contemplated allowing something that was not otherwise permitted to occur. He continued saying whether an overflow was not permitted was conditional on the cause of the overflow, that cause of the pollution being a failure to operate or maintain. He submitted, using positive language, that condition L1.3 worked as an exception to conditions L1.1 and L1.2 and that the licence could permit the pollution of waters at any time during dry weather. Mr Hemmings reiterated that the permission to pollute waters was only for dry weather, and it allowed the pollution of waters during dry weather from uncontrolled overflows (subject to the limit in condition L7.4). He noted that it was an agreed fact the event was a dry weather overflow event.
Mr Hemmings then turned to the cause of this dry weather overflow event. He submitted that condition L1.3 would not permit pollution of waters if the cause of the pollution was an uncontrolled, dry weather overflow, if the cause of the overflow were a failure to maintain the reticulation system in a proper and efficient manner. Therefore, he submitted, the condition did allow pollution of waters from an uncontrolled, dry weather overflow event that was not the result of a failure to maintain in a proper and efficient manner. Mr Hemmings submitted that the pollution event, in this instance, was not a result of Sydney Water failing to main the reticulation system in a proper and efficient manner and Sydney Water was entitled to the defence provided by s 122(1).
Mr Hemmings then proceeded to address condition L7.4. He submitted that the Prosecutor had taken an unusual approach regarding this condition because it was contrary to the approach taken by the Court and the Prosecutor in previous decisions. He argued against the position forwarded by the Prosecutor that condition L7.4 did not sit across the top of condition L1.3; in Mr Hemmings' submission it did. Mr Hemmings added this submission was against Sydney Water to an extent. He submitted this was the case because, without the operation of condition L7.4, Sydney Water would be able to have an unlimited number of dry weather overflow events; however, that was not what condition L7.4 imposed; condition L7.4 limited the number of dry weather overflow events.
Mr Hemmings addressed the Prosecutor's submission that condition L7.4 was an administrative provision because of its reference to the reporting (R) conditions. Mr Hemmings submitted that the R conditions, in particular R5, did not require reporting on dry weather overflows reaching waterways, which was the language in condition L7.4. The R conditions only required a subset of dry weather overflows.
Mr Hemmings then turned to chokes, which were defined in the special dictionary of the licence. "Chokes" were defined as a partial or full blockage of a sewer pipe, which results in sewage being discharged to the environment. A choke could be the result of a structural blockage, such as the collapse of the pipe. Mr Hemmings submitted that part of the monitoring of the system was to identify chokes or their potentiality and reduce their probability of occurring. This was part of the regular monitoring of the system; however, the "internal cross-referencing … doesn't assist the Prosecutor in its approach to its limited reading of the limit condition in L7.4."
Mr Hemmings took me back to the L7 conditions, which he submitted were "plainly limit conditions". Condition L7.4 included the wet weather overflows, for which there was no limit. Then there were the dry weather overflows that reached a waterway; these were limited, unlike the wet weather events. Mr Hemmings referred me to the definition of "waterway" in paragraph 53 of his written submissions, but he also identified that the definition was contained in the special dictionary. "Waterway" was defined as a subset of waters, with the latter having the same meaning as defined in the POEO Act. He submitted "waterway" was a more limited term and could mean the whole or any part of any river, stream, lake, ravine, swamp, or wetland, for example. He proposed that the definition of "waterway" did not apply to dry watercourses that were dry at the time of the overflow event. However, that did not mean dry watercourses did not fall under the definition of "waters" in the POEO Act, therefore waterway excluded some types of waters. Mr Hemmings also submitted that the definition of "waterways" excluded underground pipes, channels, or gutters used to collect and direct rainwater that would otherwise be caught by the POEO Act's definition of "waters".
Mr Hemmings submitted that just because the definition of "waterways" was narrower than the definition of "waters" did not change the limit on pollution events. The licence only sought to authorise a maximum number of pollution events to a subset of the receiving waters, and was carefully chosen drafting. Mr Hemmings submitted that using a more expansive definition, in this case "waters", would have meant that pollution of waters could have occurred through dry weather overflows that reached waters but not waterways, such as through percolation, being washed into waterways, blown, descended, or fallen into waterways.
Mr Hemmings addressed the Prosecutor's concern regarding the term "reaching". Mr Hemmings submitted that this term should not be of concern because the target was not waters and because it was not the "mere escape from the system". He submitted that the condition could not use the "language of 'pollute'" because that language had a specific definition in the licence, which was not trying to limit events that reached waters but limiting events that reached waterways. Mr Hemmings proposed that the deliberate drafting did not use the concept of "pollute" but used the language of "reaches waterways". Mr Hemmings said there was some debate between the parties surrounding the Prosecutor's concern; overflows reaching waterways did not necessarily result in the pollution of waters. He submitted that the Prosecutor's concern was incorrect and irrelevant. He submitted it was irrelevant because if there was an overflow as defined in the licence, and the overflow reached a waterway, being a subset of waters and, somehow, the overflow reaching a waterway did not pollute waters, then Sydney Water would not need to rely upon a s 122(1) defence. He proposed the Prosecutor's submission was wrong because it was impossible to conceive how uncontrolled overflows consisting of partially or wholly untreated sewage that reached waterways (as defined in the licence) would not result in pollution of waters.
Mr Hemmings moved to address the concept of "pollution of waters". He discussed his time in the Court of Appeal where senior counsel was defending the pollution of a lake from a coal‑fired power plant. The Court of Appeal was attempting to determine the breadth of the term "pollution" and it was submitted that making a cup of tea or brushing one's teeth resulted in pollution of waters. He therefore submitted the definition of "pollution of waters" could easily be satisfied. The next step in the reasoning was that "pollution" is defined in the licence and so it did not matter that the pollution event needed to be a priori conceived. Mr Hemmings took me to item F of Sch 5 which stated: [t]here can be no doubt the treatment of untreated sewage coming from an overflow of the reticulation system will, as a matter of definition, pollute those waterways once it reaches them.
Mr Hemmings submitted "the plain intention of the licence" was to authorise 122 dry weather overflows that reached waterways as long as there was compliance with condition L1.3. Mr Hemmings submitted the event, the subject of the offence that was before the Court, was the 79th dry weather overflow event during the reporting period, which was still within the limits permitted by the licence. He continued by proposing that you do not need to wait until the end of the reporting period to determine if an overflow event had breached the maximum permitted as at the date of the event. It was allowable at the date of the event because the total number of events on that date had not crossed the maximum number of events that was the threshold for criminality. Mr Hemmings submitted that the licence sought to minimise the harm, frequency, and volume of overflows. This was accomplished by allowing pollution in waters that were subject to the other conditions within the licence.
Mr Hemmings addressed the Prosecutor's submissions regarding conditions L1.3 and O2.1A. Mr Hemmings submitted that it was erroneous to deal with these two conditions together and the Prosecutor's submission that the Defendant could not establish that the pollution did not involve a contravention of licence conditions L1.3 or O2.1 was incorrect. He submitted that the L conditions did relate to the s 122 defence regarding pollution of waters, but the O2 conditions were not so related. Mr Hemmings identified that the L conditions were seated within Part 3 of the licence, while the O conditions were contained in Part 4 and he referred to the O conditions as the operating conditions. He submitted a failure to comply with the operating conditions was a s 64 offence, not a s 122 offence, a limit breach. Mr Hemmings continued arguing that the Prosecutor bore the burden of proof for a breach of condition O2.1, which was accepted by the Prosecutor for the valve offence because it related to a failure to maintain. He submitted that it was incorrect for the Prosecutor to seek to have the Defendant demonstrate that a cause was not the result of a failure to maintain.
Mr Hemmings turned the Court's attention to the concept of "failure to maintain in a proper and efficient condition" found in condition O2.1 and identically in condition L1.3. The Prosecutor advanced that the failure of the rising main was a failure to maintain and caused pollution of waters. Mr Hemmings argued this submission from the Prosecutor should be rejected. He submitted the effect of condition L1.3 was that a system could be maintained in a proper and efficient manner, but a pollution event still occurred, otherwise there would be no defence. Mr Hemmings submitted that, on his reading of condition L1.3, this was the correct approach to its construction. He proposed that the wording of condition L1.3 was concerned with the regulation of overflows from a system that was properly and efficiently maintained; it was concerned with minimising the frequency and volume of overflows and by this reasoning the Prosecutor's interpretation was incorrect. The Prosecutor also sought to rely upon Bartter in defence of his position on condition L1.3. Mr Hemmings countered that reliance by submitting that the facts before the Court in this matter were easily distinguished from Bartter because of the difference in licensing regimes. Mr Hemmings submitted the alternative - should I conclude that Bartter could not be distinguished, and if the Court were to adopt the conclusion in Bartter, that would be erroneous.
Mr Hemmings proposed that the offences before the Court were potential offences and, in actuality, were not offences because of the protection afforded by s 122 and the language of that provision. Mr Hemmings submitted the attempt to use the findings for condition O2.1 in one licence, Bartter, and directly apply it to condition O2.1 in this licence was incorrect, as there was no regard to the different requirements for the two licences. There was also the difficulty in trying to apply condition O2.1 directly to condition L1.3. Mr Hemmings submitted the best way to interpret condition L1.3 was to consider it using positive language, which made it easier to identify that this condition permitted pollution events if there was not a failure to maintain the system in a proper and efficient condition. He continued his submission that a sewage treatment system that was properly and efficiently maintained would still have overflow events, which was the concern of condition L7.4, which required the minimisation of dry weather overflows by capping the number of events to less than 123, or the offence was triggered.
Mr Hemmings submitted further distinguishing characteristics between the current matter and Bartter (No 3). Mr Hemmings argued, in Bartter (No 3), there were no conditions that were similar to conditions L7.2 to L7.4, nor were the objectives similar. These stood as additional reasons to distinguish Bartter (No 3), whether Duggan J was not taken to them for her decision or they did not exist could explain her Honour's conclusion in the matter. Mr Hemmings added that there was a difference between the large reticulation system in this matter and the equipment under consideration in Bartter (No 3). Mr Hemmings proposed that the correct way to address the construction of the conditions was to consider the licence as a whole and in context. This led to another factor that would distinguish Bartter (No 3). Mr Hemmings quoted from [46] of Bartter (No 3): 46 … whilst the licence under POEO 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.
Mr Hemmings proposed that, to determine what the licence made permissible, it had to be interpreted in light of conditions A1.5, A1.4 (objectives), L1.3, L7.2, L7.3, and L7.4. Duggan J's decision related to condition A2.1 and, therefore, it had no application to condition L1.3 in this matter. Mr Hemmings submitted that I would not apply Bartter (No 3) and would come to a different conclusion.
Mr Hemmings next addressed Pepper J's decision in Charlotte Pass Snow Resort. He submitted that her Honour had adopted the reasoning of Duggan J in Bartter (No 3). It, too, was distinguishable from the current matter - being in a different context and there being different licences. Another distinguishing characteristic, he proposed, arose because it was a smaller sewage treatment plant with a treatment capacity of between 20 and 100 megalitres per year. This was to be compared to the sewage treatment plant in this matter, which has a treatment capacity of 30,000 megalitres per year, orders of magnitude greater. In Charlotte Pass Snow Resort, her Honour addressed condition L1.2 of that licence, which was markedly different to the limit conditions in Sydney Water's EPL and did not have any bearing on any potentially equivalent condition like condition L1.3.
Mr Hemmings conceded one point regarding Charlotte Pass Snow Resort. That licence did consider an objective that was similar to that in the current matter - the requirement for the proper and efficient management of the sewage treatment plant to minimise harm, minimise frequency, and minimise volume of pollution; it did not require prevention. Mr Hemmings proposed that her Honour did not seem to address those additional matters in her reasoning. As a consequence, Charlotte Pass Snow Resort was to be distinguished from these circumstances, he submitted.
The "cause" element in condition L1.3 was the next considered by Mr Hemmings. He separated this condition into parts, commencing with the requirement to "maintain".
He proposed that this issue should be addressed in two parts, the first being to acknowledge the fact that Sydney Water had hundreds of pumping stations and tens of thousands of kilometres of pipes to maintain and, second, the approach needed to be applied because of the scale of Sydney Water's task required by the condition. Regarding the first part of his submission, he proposed that the focus should be what the phrase "maintain in a proper and efficient condition" meant. He submitted the phrase could not be considered out of context; the interpretation of the phrase needed to be informed by experts who understood pipes and the physical pressures and processes that impacted upon them. The information received from experts would then direct how pipes like those in question needed to be maintained in a proper and efficient condition. Mr Hemmings submitted that the failure of the rising main pipe was a unique failure issue - referencing the evidence given by Mr Ferguson.
Mr Hemmings submitted that, on the balance of probabilities, I would find that Sydney Water did maintain the rising main in a proper and efficient condition. This meant that the burden of proof passed to the Prosecutor to prove, beyond reasonable doubt, that other steps should have been undertaken to maintain the rising main in a proper and efficient condition to account for the unique failure that occurred in this rising main.
Mr Hemmings next addressed propositions advanced concerning the possible use of CCTV. He discussed the evidence from Dr Martens - it was something that could be done - while the evidence from Mr Ferguson was that CCTV would not have worked to reveal the cause of the split (even if Sydney Water could have used it - which, on his evidence, was not possible). Mr Hemmings continued proposing that, either way, there would be difficulties using the CCTV camera in the rising main due to access problems. Mr Hemmings identified that the rising main that was the subject of these proceedings was connected to the NGRS but it was not possible to access the rising main from this point. The NGRS would have needed to be plugged as there is no access hatch to this rising main at this point, so the rising main would have had to be physically disrupted. The rising main would have needed to be dewatered, and there were limitations on the length of CCTV cables. These were the physical difficulties for using CCTV in this rising main, he submitted.
Mr Hemmings addressed the next difficulty concerning what, on the Prosecutor's case, would constitute the maintenance of the rising main in a proper and efficient condition. This was that if it was concluded that an "excavation and disruptive investigation" of the rising main should have been part of a proper maintenance regime, this would only be used at targeted locations. The targets for such a regime would only be on locations with identified potential issues and would not have been implemented for failure issues that were unique, such as investigation of obvert pipe erosion.
The third issue in Mr Hemmings submissions on system maintenance was that the Prosecutor could not satisfy me beyond reasonable doubt that the invert erosion channel in the rising main would have been found, even if CCTV could have been, and was, used after dewatering the rising main. Mr Hemmings argued finding the invert erosion channel in the rising main, on the evidence, would not have occurred.
Mr Hemmings next proceeded to address the evidence given by Dr Martens that it might have been necessary to clean the rising main to undertake a proper inspection of it. He submitted there would be difficulties with this process; where would you put the water source and what do you do with the water being flushed out of a system that had little or no detention time. Mr Hemmings submitted that, in light of all these impracticalities, I would conclude that Sydney Water did maintain the rising main in a proper and efficient matter.
Mr Hemmings next turned his attention to the Prosecutor's submission that a redundant rising main could have been constructed. Mr Hemmings submitted the Prosecutor's proposition was mere speculation and lacked foundation as to why it should have been considered by Sydney Water. Mr Holland had provided evidence on this proposition, with Mr Holland offering the where and how this could have possibly been accomplished through the addition of a new pumping station. Mr Hemmings submitted that if all the issues raised by Mr Holland could have been overcome, at the time of the event and prior to it, construction of an unnecessary redundant rising main would not have been considered within the realm of a proper maintenance regime.
Mr Hemmings proposed that the aim of the licence was to prevent deterioration so as to avoid crossing the threshold of the maximum allowable events that impacted the environment. This submission was made regarding the objectives of Sydney Water's EPL and this was a system that did potentially create (acceptable) environmental impacts. He proposed the requirement to maintain the system in a proper and efficient manner was not a requirement to maintain, in an absolutely fail‑safe condition against unforeseeable eventualities, this specific six‑metre section of a rising main that was 1,172 metres long, with that being one of thousands of kilometres of pipes in the entirety of Sydney Water's system.
Mr Hemmings took me to the risk assessment that had been completed and which had identified some of the factors that were taken into consideration - age, water hammer, previous failures of component parts and other matters (which included design life, materials used in constructing the pipe and in its installation, diameter, length, capability, and system detention time). The risk assessment did not use "potential failure resulting from unique circumstances" as a factor to aid assessment, he submitted. Mr Hemmings proposed that Sydney Water could not be held accountable for not including unique (and unforeseeable) failure mechanisms in the assessment.
Mr Hemmings noted that the rising main in question was ranked equal fifth overall, according to the assessment, for age. Even though it was installed in 1966, it was ranked 138 out of 1,901 pipes that "caused my client difficulties." He next made submissions on the concept of previous failure of the components, where he argued that: 1. previous component failures were not the result of erosion to the invert of the pipes; 2. the failure was not the result of any part of the bearing rising main; and 3. there was a leak from the rubber seal in one part of the pipe and there was a broken valve that had needed to be replaced.
However, these previous circumstances had been accounted for in the risk assessment conducted by Sydney Water which produced the risk ranking. Mr Hemmings said that the actions taken by Sydney Water in its risk assessment could not be taken as proof of Sydney Water's failure to implement a program to maintain the rising main in a proper and efficient condition - the contrary conclusion should be drawn.
Mr Hemmings turned to the criticisms from Dr Martens' original report regarding what he called a failure to perform water hammer tests. Dr Martens said he had been given information that indicated the rising main was impacted by water hammer in 2016 and that remedial action had not been completed. Dr Martens had then discussed the increased pressure which occurred during the start‑up of SP0213 and was advanced as a likely cause of the rising main failure.
Mr Hemmings submitted this information conflated the Prosecutor's submissions and was incorrect. Mr Hemmings took me to the after‑event assessment report (document A41, folio 132). He drew my attention to the second‑last paragraph that said, "[b]ased on available information to date, the likely cause of failure …". Mr Hemmings paused at that point to submit that both opinions expressed by Dr Martens and those he presented in his report had the advantage of hindsight. It was conceded that it was known, after the event, that the rising main pipe failed due to unique circumstances. The interior wall on the invert of the pipe had reduced in thickness due to scouring which had resulted in the failure of the pipe, with minor, only potentially contributory external pipe erosion. Mr Hemmings submitted, based on these factors, the opinions expressed by Dr Martens prior to the after‑event assessment could not be taken to prove that Sydney Water had failed to maintain the rising main in a proper and efficient manner. Mr Hemmings added the Prosecutor bore the burden of proving the negative on the balance of probabilities and the Prosecutor would not be able to satisfy that burden.
Mr Hemmings conceded that failure due to water hammer in cement‑lined, cast iron pipes was a known failure mechanism for such pipes and that factor was included in the system assessment report. He submitted, however, that, in 2019, Sydney Water would not have considered the unique factors that caused this rising main's failure. Mr Hemmings proposed I would be satisfied on the balance of probabilities that Sydney Water had maintained the rising main in a proper and efficient condition. He made the submission that the time period in which the failure might have happened was irrelevant for my determination because of the unique nature of the failure. He submitted that any hypothesised reliance on a CCTV assessment would not have been "adequate to displace the finding the Court would make." Mr Hemmings submitted that this was a dry weather overflow that had not crossed the limit for the maximum number of events contained in condition L7.4; in addition, there was no failure to maintain the rising main on behalf of Sydney Water. Therefore, he argued, Sydney Water was entitled to rely upon the statutory defence provided by s 122 of the POEO Act.
Mr Hemmings next addressed Sydney Water's alternative defence of "honest and reasonable mistake of fact". He confirmed the Prosecutor's expectation that Sydney Water also sought to rely on this defence, and he agreed with the Prosecutor's detail of the applicable principles concerning availability of the defence.
Mr Hemmings submitted that the Prosecutor had "fallen into the same error" as had arisen for Sydney Water's defence of necessity to the pumping station charge. This error into which the Prosecutor had fallen was to submit that Sydney Water had not led any evidence or demonstrated any facts that would support a foundation to raise this defence. Mr Hemmings submitted that common law principles provided the broad basis for my determination as to the availability of this defence. However, he submitted that there was a relevant statutory provision relevant to such consideration, this being s 169C of the POEO Act. Mr Hemmings responded to the Prosecutor's submission that Sydney Water had not provided evidence of any person or from any member of the Board of Directors whose state of mind could demonstrate the required state of mind needed for the defence. Mr Hemmings proposed that s 169C provided the necessary basis for attribution to that end. He submitted that the operation of s 169C attributed the necessary state of mind to any employee, officer, or agent of a corporation who held that belief as the basis to attribute that belief to the corporation. Mr Hemmings added that the state of mind included the opinion or belief of the person and the reasons that person held that opinion or belief. He submitted that this section had been considered in the Court of Criminal Appeal in Environment Protection Authority v Wollondilly Abattoirs Pty Limited & Davis [2019] NSWCCA 312 and was authority for his submission.
Mr Hemmings submitted that Sydney Water therefore held the belief in relation to the adequacy of the condition of the rising main when the failure took place. That belief, he submitted, was that the rising main could only fail due to a combination of factors: internal and external corrosion, potentially coupled with the increase in pressure from start‑up operations, and possibly combined with the effects generated from water hammer - but not from corrosion of the invert of the pipe. Sydney Water also held the belief that it would be 2023 before the annual probability of failure from foreseeable events would reach 10%. Mr Hemmings added that failure of the rising main due to the unique circumstances here occurring had no bearing on whether the belief was reasonable or honest. He submitted the only way the Prosecutor could refute the defence was if the Prosecutor could convince me that the belief should have included the unique characteristics of the rising main failure, which was not a conclusion that could be reached on the evidence. Mr Hemmings asserted that Sydney Water reasonably and honestly held the belief about the state of the rising main in a fashion which would allow s 169C of the POEO Act to be engaged to demonstrate, on the evidence, that the main should not be anticipated to fail in the fashion which had taken place.
Mr Hemmings summarised his submissions on the defences concerning the rising main as being that: 1. I would be satisfied that the rising main offence did not result from a failure of Sydney Water to maintain the rising main properly and efficiently and, thus, condition L7.4 made the s 122 defence provided by the POEO Act available and established; and 2. Sydney Water also held an honest and reasonable belief, on the facts, that proved that the split in the pipe's invert would not occur. The Prosecutor had failed to demonstrate that s 169C did not operate to permit this defence being available to Sydney Water.

[82]

The legal issue

First, I turn to consider how condition L7.4 is to be construed and whether, on its proper construction, it can potentially provide Sydney Water with the potential to have the benefit of the exculpatory defence in s 122(1) of the POEO Act.
The most convenient way to address the detail of the Prosecutor's complex submissions concerning how condition L7.4 of Sydney Water's EPL is to be understood (and applied to the effluent discharge from the split rising main and its entering Prospect Creek) is to work through the detail of the relevant portions of the Prosecutor's written submissions on this point.
The Prosecutor's closing written submissions propose that, properly construed, Sydney Water's EPL, by condition L1.1, prohibits activities undertaken pursuant to the licence which might pollute waters unless otherwise expressly permitted by the terms of the licence. This is self‑evident from the condition's terms as earlier set out.
The Prosecutor has noted that the term used in condition L7.4 is one which imposes a limit on the number of dry weather overflows reaching waterways. The Prosecutor notes that there is no composite definition of the expression "dry weather overflows reaching waterways", although there is, in the Special Dictionary to Sydney Water's EPL, a definition of "dry weather overflow" (a definition earlier set out). There is no dispute that the discharge of effluent from the split in the rising main constituted a dry weather overflow and, moreover, that it was an uncontrolled overflow as also defined in the Special Dictionary to the EPL.
The Prosecutor submitted that the expression "dry weather overflows reaching waterways" in condition L7.4 of EPL 372 "… has a very particular, technical meaning. That meaning is divorced from the ordinary and natural meaning of the expression" (written closing submissions at paragraph 52).
The Prosecutor also submitted that, given that the expression in condition L1.3 references "pollution of waters" rather than "overflows reaching waterways": 56. … It should be concluded that the expressions in EPL 372, "overflows reaching waterways" and "pollution of waters" convey different concepts.
This proposition is followed by paragraph 57 of the Prosecutor's written closing submissions, a paragraph in the following terms: 57. Apart from the definitional differences, the concept of "overflows reaching waterways" does not require (or necessarily result in) a change in the physical, chemical or biological condition of the waters in the waterway. In other words, overflows reaching waterways do not necessarily involve "pollution of waters" under the POEOA.
I am unable to accept this proposition. I have earlier set out the relevant element of the definition of "pollution of waters" from the Dictionary to the POEO Act. For present purposes, it is appropriate to repeat this. It is in the following terms: 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,
From its terms, it can be seen that a discharge of effluent which constitutes an overflow reaching a waterway must necessarily cause pollution of waters - unless the waterway so reached is already one that has the identical physical, chemical, and biological condition of that effluent. Self‑evidently, it is an absurdity to suggest that Prospect Creek would be in such a state that it had the same properties as the effluent which reached it from the split in the rising main.
The effluent from the split in the rising main reaching Prospect Creek necessarily resulted in pollution of that waterway. It is in the context of this correct factual understanding that it is appropriate to turn to paragraphs 58 to 61 of the Prosecutor's closing written submissions as they provide the specific framework advanced by the Prosecutor as providing a further understanding of why, in the Prosecutor's submission, condition L7.4 cannot provide a path for Sydney Water to be able to avail itself of the statutory defence in s 122(1) of the POEO Act. These paragraphs are in the following terms (footnotes omitted): 58. On its proper construction, condition L7.4 is a stand-alone requirement which does not bear a relevant relationship to other provisions of EPL 372 other than condition R5.5. On their proper construction, conditions L7.4 and R5.5 evince a concern on the part of the regulator to monitor and place a cap on the phenomenon of "dry weather overflows reaching waterways" which is separate from the obligation imposed by the Act to avoid "pollution of waters". 59. In addition, it is erroneous to regard condition L7.4 as in any way permitting either incident of water pollution, from the rising main or from the pumping station, that occurred in this case. To be precise, the events of water pollution (as defined by the Act) the subject of the Rising Main and the Pumping Station Offences were not regulated by condition L7.4 - or by that condition in combination with any other condition. 60. An offence of Pollute Waters is complete when the offender's conduct has brought about the result of water pollution as defined by the Act. So, for example, once the foreign matter has entered the waters and relevantly altered its condition - or has been placed into a dry gully such that it would be water pollution if it had been placed in waters - the offence of Pollute Waters is complete. It cannot be known whether there has been a breach of condition L7.4, however, until the end of the relevant reporting period - in the case of this Licence, on 1 July of any calendar year. 61. It would be wrong to conflate the offence of Pollution of Waters under the Act with the concept of a limit on the total number of dry weather overflows reaching waterways from the sewage treatment system during a reporting period under EPL 372 - or to regard the elements of the offence of Pollution of Waters as contained within the requirement of condition L7.4 to limit the total number of dry weather overflows reaching waterways from the sewage treatment system during a reporting period under EPL 372.
The fallacy in the Prosecutor's paragraph 60 (and carrying over into paragraph 61) is that compliance with condition L7.4 is unable to be assessed until the expiry of the whole of the relevant reporting period. This is not a correct understanding of how the condition is to be understood, as any breaches of that condition will only arise by the occurrence of the 123rd (or subsequent) "dry weather overflows reaching waterways" (other than from pumping stations).
To suggest that, as is implicit in the above submission paragraphs, that any 123rd or subsequent overflow permits some retrospective return to determine which earlier events might give rise to, and pursuit of, a breach of s 120(1) of the POEO Act is to seek to force an interpretation which is contrary to what would be the ordinary language understanding of the terms of the condition.
As a consequence, the rising main effluent discharge, by its reaching Prospect Creek, falls within the 122 event limit created by condition L7.4.
It is now appropriate to turn to paragraphs 62 and 63 of the Prosecutor's written submissions. These are in the following terms (footnotes omitted): 62. Further, to construe condition L7.4 as authorising conduct amounting to the offence created by the POEOA of Pollute Waters would be: ● in breach of s 63(2) of the POEOA: "A condition cannot be attached to a licence if compliance with the condition would result in a breach of a requirement made by or under this Act" ● inconsistent with the objectives of EPL 372, as expressed in condition A1.4, and thus also ● inconsistent with the requirement of condition A1.5, to construe EPL 372 in a manner that will promote the objectives in condition A1.4. 63. In addition, the other conditions contemplated by condition L1.1 of EPL 372 as authorising the licensee to not comply with s 120 POEOA is limited to such other conditions "as may be "expressly provided". It cannot sensibly be said that condition L7.4 expressly provides that the Defendant may not comply with s 120 of the Act.
With respect to the above propositions, both the Prosecutor and Mr Hemmings referred to the decision of Pepper J in Queanbeyan. In that decision, her Honour was addressing whether or not the Prosecutor's prosecution of Queanbeyan City Council (the Council) should be stayed as an abuse of process because the Prosecutor had not issued the Council with an environment protection licence for, relevantly, the Council's effluent pumping stations and had, thus, deprived the Council of an opportunity to seek to rely on the statutory defence in s 122(1) in the absence of such a licence.
The background factual circumstances are unusual, in that the Council had its sewage treatment plant in the Australian Capital Territory rather than in this state. As a consequence of this, the Prosecutor had advised the Council that the Council's sewerage reticulation system was not to be licensed by the Prosecutor. The Prosecutor had advised that the Local Government (Approvals) Regulation 1999 set the relevant performance standards for the reticulation system, including preventing contamination of waterways. When there were a series of failures of a pumping station leading to overflows, the Prosecutor served a total of four prevention notices on the Council.
In November 2007, following the above outlined events, there was what appeared to be a significant overflow caused by a further failure of a pumping station leading to a spill into the Queanbeyan River. The Prosecutor did not charge the Council for that incident.
Later, on the day of the above described incident, the same pumping station failed again. As a consequence of this second failure, approximately 1.85 million litres of effluent overflowed into the Queanbeyan River. The Prosecutor laid a "pollute waters" charge against the Council with respect to the second of these overflows on 4 November 2007. It was with respect to this charge arising out of the second overflow that her Honour gave her decision.
Relevantly, for present purposes, it is appropriate to set out the terms of [157] and [158] of her Honour's decision (these paragraphs having been referenced by both parties in these proceedings). These paragraphs were in the following terms: 157 In my view, it is, moreover, highly unlikely that a licence would have been issued permitting the second overflow event the subject of the charge. The position of the EPA in this regard was consistent with the Act insofar as s 63(2) prevents the attachment of conditions to a licence "if compliance with the condition would result in a breach of a requirement made by or under" the Act. 158 Having said this, it must be recognised that activities are regularly licensed that would, absent the licence and any conditions attached, result in a breach of the Act. Construed literally s 63(2) would create the absurd result that almost no licences could be issued. The fact remains that polluting activities are sanctioned under the regulatory framework permitted in the Act by, amongst other things, compliance with conditions.
Pain J's decision in Environment Protection Authority v Sydney Water Corporation, earlier referenced, was to the same effect as the opinion of Pepper J in [158] above and was in the context of what was permitted by condition L7.4 of a different Sydney Water EPL (the EPL conditions L1.3 and L7.4 - however, being in identical terms save for a difference in the number of permitted condition L7.4 events).
At this point, it is appropriate (although out of sequence) to set out paragraphs 27 to 37 of the Prosecutor's written closing submissions addressing the broad scope of Sydney Water's EPL. These paragraphs were in the following terms (footnotes omitted): First limb of defence - did EPL 372 regulate the pollution? Meaning 27 The first limb of the defence under s 122(1) is that: "(a) the pollution was regulated by an environment protection Licence held by the person or another person". 28 To determine whether the Defendant can establish this, it is necessary to consider the meaning of the words "regulated by" as they appear in paragraph (a). 29 In their context, and having regard to the text and its purpose, the words "regulated by" bear their ordinary and natural meaning. 30 When construing a particular word, a court may take judicial notice of the ordinary meaning of a word and can do so with the assistance of an authoritative dictionary. In Australia, the "most authoritative" dictionary is said to be The Macquarie Dictionary. 31 The Macquarie Dictionary defines "regulate" as follows: "1. to control or direct by rule, principle, method, etc. 2. to adjust to some standard or requirement, as amount, degree, etc.: to regulate the temperature. 3. to adjust so as to ensure accuracy of operation: to regulate a watch. 4. to put in good order: to regulate the digestion." 32 Having regard to the context in which the term is used in s 122(1), the only applicable meaning is (1) above. First, the heading of s 122 is relevantly "Defence of authority conferred by protection of environment licence". Second, s 122(1)(a) specifies the means by which the water pollution may be regulated so as to give rise to the defence, namely "by an environment protection Licence", which is relevantly defined in the Dictionary to the Act as: "a Licence authorising the carrying out of ... scheduled activities or controlling the pollution of water arising from non-scheduled activities, being a Licence issued under Chapter 3 and in force". (It should be noted that the reference to controlling the pollution of water arising from non-scheduled activities in this definition does not apply.) 33 Third, s 122(1)(b) imposes a requirement that the person seeking to rely on the defence must establish that the conditions to which the environment protection Licence were subject relating to the pollution of waters were not contravened. 34 These textual indications indicate that the meaning of "regulated by" in s 122(1)(a) intended by Parliament is one of control or direction (authorise) by rule, principle, method etc (eg, conditions). In this sense, the word "regulated" bears the meaning described by Dixon J in Shire of Swan Hill v Bradbury: "… the force of the word "regulating" has been discussed repeatedly, and the cases dealing with its application have grown only too familiar. Primá facie, a power to make by-laws regulating a subject-matter does not extend to prohibiting it either altogether or subject to a discretionary Licence or consent. By-laws made under such a power may prescribe time, place, manner and circumstance, and they may impose conditions; but under the primá facie meaning of the word they must stop short of preventing or suppressing the thing or course of conduct to be regulated (citation of authority omitted)." 35 In Environment Protection Authority v Australian Iron and Steel, the Court of Criminal Appeal said: "The point of a Licence is that it permits something to be done. The nature of this Licence is to be understood in the light of the legislation pursuant to which it was issued: s 16 of the Clean Waters Act and s 17 of the State Pollution Control Commission Act. Although the drafter of the Australian Iron & Steel Licence appears to have devoted more attention to stating what was prohibited than what was permitted, the various conditions must be understood in the light of the essential nature of the instrument, that is to say, that it was an instrument permitting, on terms, conduct that would otherwise be unlawful." 36 See also Environment Protection Authority of NSW v Goulburn Wool Scour Pty Ltd. 37 Circumstances in which Pollution of Waters would be regulated by an environment protection licence for the purposes of the first limb of the statutory defence under s 122(1)(a) would be, for example, pollution which occurred by reason of discharges where they were expressly permitted by the licence from discharge points or utilisation areas identified by conditions P1.1 to 1.3 of EPL 372. That is not the case here.
What is to be drawn from the above elements of these early portions of the Prosecutor's written closing submissions concerning the rising main charge is that Sydney Water's EPL, as can be seen from the cited extract from Environment Protection Authority v Australian Iron and Steel (1992) 28 NSWLR 502 (at 505B) is that Sydney Water's EPL is "an instrument permitting, on terms, conduct that would otherwise be unlawful".
Condition L7.4 is precisely such a permissive condition, one which sets out in terms (by the nominated 122 limit on the number of events which are to be permitted, in specified circumstances, before criminal liability could arise) what otherwise unlawful conduct is permitted.
Viewed in this properly understood context, the conclusion set out in paragraph 64 of the Prosecutor's written submissions that condition L7.4 was not a condition "to which the licence was subject 'relating to the pollution of waters' within the meaning of s 122(1)(b)" is to be rejected.
The consequence is that, subject to the factual analysis I discuss below arising from consideration of condition L1.3(ii), the statutory defence provided for by s 122(1) of the POEO Act is available to Sydney Water.

[83]

The facts concerning the failure of the rising main

It is next critical to consider whether a proper understanding of the facts leads to the conclusion that condition L7.4 (to be understood as explained above) applies to the rising main's discharge of sewage into Prospect Creek. This requires consideration of whether the uncontrolled dry weather overflow from the split main arose in circumstances where condition L1.3(ii) was satisfied because there was no lack of diligence on Sydney Water's part concerning this rising main in its activities between 2007 and 2019. It is thus necessary for me to be satisfied that Sydney Water, reasonably, could not have anticipated the failure which actually occurred and, therefore, was not prevented.
The requirement in condition L1.3(ii) that arises to be assessed imposes an obligation on Sydney Water to: ii) maintain any part of the reticulation system in a proper and efficient condition
Although the Prosecutor addressed the question of foreseeability in the following terms (Transcript 15 September 2021, page 221, lines 39 to 42): On the question of foreseeability, we submit that there is no element of the offence of pollute waters consisting of foreseeability. We reiterate our submission that the offence is one of strict liability and accordingly there's no element such as recklessness which might entail foresight of consequences and proceeding regardless. The only mental element is that which comes into play if a defendant raises a defence of honest and reasonable mistake fact.
what I am required to address here is not the issue of foreseeability of water pollution but foreseeability of compliance with an EPL condition in the context of the obligation imposed on Sydney Water pursuant to condition L1.3(ii). That, in my assessment, is a distinctly different proposition than that which was addressed by the Prosecutor in the above transcript extract. Foreseeability can play a role in that assessment.
It is unnecessary to repeat any of detailed extracts earlier set out from the earlier evidence. It is sufficient that I rely on that evidence as the basis for drawing the following conclusions: 1. The split of the rising main was unforeseen; 2. The split of the rising main was unforeseeable (Mr Ferguson's evidence); 3. The testing of the rising main for the purposes of Sydney Water's condition assessment process was carried out in accordance with the testing regime and technical equipment available at the time in 2007; 4. The resulting assessment that there was only a 10% possibility of failure of this rising main and that that possibility would not arise until 2023 was an entirely appropriate conclusion to draw from the testing undertaken; 5. The testing which was undertaken was testing of the potential for impact on the rising main because of corrosion of the obvert of the pipe; 6. Testing of the invert of the pipe was not undertaken and would have been entirely contrary to what was regarded as appropriate industry practice at the time and there is no suggestion, in the evidence, that there is any technical reason to dispute this; 7. No subsequent incidents with this rising main gave rise to any reason to revisit that assessment; 8. CCTV could not have been deployed to examine the interior of the rising main without the necessity for significant intrusions being cut into the pipe because of the distance limitations that applied to the use of this technology; 9. Even if CCTV had been able to be utilised for the internal inspection of this rising main, such inspection would have been confined to examination of the interior of the obvert of the pipe above its spring line (that is, the midpoint of the wall of the pipe); 10. Even had CCTV inspection (a) been possible across the length of the pipe and (b) sought to be focused on the invert of the pipe (contrary to accepted industry standards), such inspection would not have detected the potential for the split in this rising main giving rise to the pollution event because there would have been residual liquid material in the invert of the pipe that would have prevented such observation; 11. Fresh water flushing of the pipe to permit such observation of the invert (had this been attempted contrary to the above findings), it would still have been highly unlikely that the channel which had been abraded in the centre of the invert of the pipe would have been detected.
Having regard to all of the above facts, the only possible conclusion to be drawn from them is that the split in the rising main and its resultant uncontrolled overflow of effluent did not arise from any failure by Sydney Water to maintain any part of its reticulation system in a proper and efficient condition.

[89]

Sydney Water's submissions

Sydney Water's written closing submissions addressed this alternative defence to the rising main charge in detail by reference to the process of assessment undertaken prior to the rising main splitting and causing the event founding this charge. These submissions were at paragraphs 172 to 185 of Sydney Water's written closing submissions. Those paragraphs were in the following terms: Honest and reasonable mistake of fact 172. The Prosecutor has correctly anticipated that the Sydney Water relies upon the defence of honest and reasonable mistake of fact. Sydney Water relies upon that defence only in relation to the Rising Main charge. 173. The Prosecutor's submissions are brief. At [257] and [258] the Prosecutor sets out a summary of the defence. The totality of the Prosecutor's submissions necessarily made in order to negative the defence beyond reasonable is contained at paragraph [259]. In that paragraph the Prosecutor submits "the Defendant has led no evidence that it believed in any particular facts at all. Accordingly, no basis to raise a defence of a mistake of fact has been established." 174. In its attempt to rebut the defence of honest and reasonable mistake, the Prosecutor has made the same error that it makes in relation to the belief held by Sydney Water in relation to the defence of necessity. That is, in order to prove the belief was honestly held, the Prosecutor has assumed it was necessary to lead evidence from the Board of Sydney Water. That is simply incorrect. The relevant state of mind of Sydney Water is proved by evidence of the relevant state of mind of Sydney Water's employees (see the submissions on s 169C below at [269] to [273]). 175. Alternatively, if the reason for the Prosecutor's failure to address the defence of honest and reasonable mistake is because of the Prosecutor's suggestion that Sydney Water "has led no evidence" and by that statement the Prosecutor suggests it was necessary to lead the evidence in the Defendant's case, that is plainly wrong. As Justice Biscoe held in Kinnarney (The Hills Shire Council v Kinnarney Civil & Earthworks Pty Ltd [2012] NSWLEC 45) at [172}: "The evidentiary burden of establishing a defence of honest and reasonable mistake of fact is in the first place upon the defendant. There must be evidence that makes it appear that the defendant had reasonable grounds for believing in the existence of a state of facts which, if true, would take this act outside the operation of the enactment and that on those grounds he did so believe. The necessary foundation in evidence will in most cases have to be provided in the defendant's case. But it is conceivable that during the prosecution case sufficient evidence may be elicited by way of cross‑examination or otherwise to prove the necessary evidentiary foundation. The evidentiary burden in this context is to be understood in light of the concept of honest and reasonable belief. The concept has a subjective element of a kind that ordinarily is peculiarly within the knowledge of the defendant, and an objective element that must be capable of being measured by the Court against the evidence. If that evidentiary burden is satisfied, then ultimately it is for the prosecution to prove beyond reasonable doubt that the accused did not honestly believe, on reasonable grounds, in the existence of that state of facts." 176. In these submissions addressing the failure to maintain the Rising Main in a proper and efficient condition Sydney Water has already addressed, in detail, its belief in relation to the likely failure mechanism for the Rising Main. That belief was that the Rising Main could fail due to a combination of internal and external corrosion possibly combined with the increase in pressure at pump start up or possibly combined with the water hammer effect. Sydney Water further reasonably believed that it would not be until approximately 2023 that the annual probability of failure would reach 10%. 177. Additional relevant extracts from the evidence are discussed below. The Court would be satisfied, on the balance of probabilities, that Sydney Water (through its employees: (s 169C) honestly and reasonably believed in that state of facts. If that state of facts was correct, then the Rising Main pollution event would not have occurred. 178. The fact that the pipe did fail due to the unique failure mechanism is of no relevance to whether the belief was either honestly nor reasonably held. The only way the Prosecutor could negative the defence would be to satisfy the Court that any reasonably held view in relation to potential failure needed to include a concern that the pipe might fail due to the unique failure mechanism. The Court would reject that submission, if in fact it were to be made. 179. The defence of honest and reasonable mistake of fact is made out in relation to the Rising Main charge on the balance of probabilities. The Prosecutor has failed to negative that beyond reasonable doubt. 180. Without repeating the detailed submissions that have already been made above, Sydney Water identifies the following evidence that demonstrates Sydney Water through its employees, honestly and reasonably believed in the relevant state of facts. 181. Mr McDonald in his evidence confirms that the belief he held as the manager at Sydney Water responsible for programming the condition assessment program was that the risk of failure was not until 2023. Mr MacDonald said: ● Transcript of Interview with Stuart McDonald: MS JONES: Q 134. Okay. What can you tell me about the 2007 condition assessment? A It was done by ADE or their, their previous name, EarthTEC I think. And, yeah, it essentially suggested a failure in 2023 is likely. That was done through LPR assessment and a scanning of the top of the pipe. ● Transcript of Interview with Stuart McDonald: Q 142. Okay, so this is a copy of the condition assessment of SPS213, sewer rising main for SWC. Document PS2258, dated 5/3/2007. Report by Philip Ferguson. And we've labelled it SM4. So, in your response to - what, what did Sydney Water do or did you do in response to the findings of this report? A Essentially, we were monitoring its performance. Q 143. Can you explain how you do that? A Essentially we're just seeing - well, when there's any failures we want to respond and understand the causes of any failures. There's - we condition assessed it in 2007 and it didn't highlight any future failures until 2023. ● Transcript of Interview with Stuart McDonald: A Again, the - sorry. Again, the, the report said a failure around 2023. 182. Indeed in 2017 when a condition assessment was requested he decided that it was not appropriate for this very reason. Mr MacDonald said: A - - - we were working through those at that time when we first - in 2017 when we were going to put forward that I was not aware of the 2007 report and therefore, we were working down that list. When I became aware of the 2007 report, I had a review of it, it showed it didn't have a failure predicted until about 2023. I therefore withdrew that so we could focus our expenditure on the next priority rising main. 183. Similarly when Mr Hurley was asked about the time period between condition assessments he identified that failure was not expected until the mid 2020s: MS JONES: Q 216. This is a question relating to the - particularly the rising main. But are you aware if there's a maximum time between asset - between inspection condition assessment inspections? A It's based on condition. So again, it's - the objective of these avoid fail strategies is to have an intervention prior to end of service life. There's - there are indicative numbers, but in this instance my understand was their condition assessment was conducted in 2007, with an estimated onset of performance deterioration in the mid-20s. 2025, et cetera. MR RUTHERFORD: I think we've got a copy of that if you - - - MS JONES: We do. MR RUTHERFORD: - - - want it. MS JONES: Yep. It's around here somewhere. (Indistinct) MR RUTHERFORD: (Indistinct) consistent with the - - - MS JONES: Yeah, I think so. Yeah, it was 2023 or 2025, somewhere around there. MR HURLEY: And that was a probability? MS JONES: We don't seem to have a copy. Okay. 184. Further evidence of Sydney Water's belief is set out in Sydney Water response to Notice No. 158145558: 17. Sydney Water's response to question 14 of the initial notice includes a document dated 5/3/2007 by Phillip Ferguson from EarthTech titled "Condition Assessment for SPS213 Sewer Rising Main for SWC" which concludes that the main will be at future risk of internal corrosion failure in the medium term. Sydney Water's response to question 14 of the initial notice states that no failures were predicted in the medium term. Provide an explanation for the inconsistency in the documentation in this regard. The statement in the response is incorrect. The response to question 14 should instead Read "A condition assessment report from 2007 was subsequently identified with no failures predicted in the short term." The report in question states that "the analysis predicts the likelihood of a failure, primarily due to the effects of internal corrosion, in the medium term." Furthermore, the time to first failure was predicted around 2023. This can be found in Figure 13 of the 2007 Condition Assessment Report. And b. If the answer is 'yes' to question 18, provide details of how it was concluded that no short-term failures were likely in 2017, given medium term failures were identified as likely 10 years previously in the 2007 condition assessment. See answer to Question 17, which is relevant to this answer. Failures were not considered to be imminent in 2017 due to the fact that the 2007 Condition Assessment report predicted the first failure around 2023; there had been no previous failures due to poor pipe condition; and Sydney Water undertaking new research on pipe condition assessment in conjunction with Sydney water's research partners. 185. Indeed on 5 July 2019, the author of the 2007 Condition Assessment, Mr Ferguson provided a report to Sydney Water titled "SPS0213 - DN600 CICL Failure Investigation Report" in which he summarises his review of his own 2007 Condition assessment and confirms that failure was not predicted until 2023: 1.1.1 Conclusion of Report The following is an extract from the report. 1. The natural soil surrounding the pipeline is moderately corrosive; 2. The sand surround in contact with a large percentage of the external surface is non-corrosive; 3. The main is not at high risk of external corrosion failure; 4. The main will be at future risk of internal corrosion failure in the medium term; 5. This risk is greatest at high points where air accumulates; 6. As the main is grey cast iron it is always at risk of failure due to excessive rapid loading. A failure was predicted to occur in 2023.

[90]

Introduction

As conceded by the Prosecutor, a defence of "honest and reasonable mistake of fact" is potentially available to a defendant as an exculpation for a criminal charge laid against that defendant (Proudman v Dayman at 540 per Dixon J). A defendant is required to demonstrate that the necessary elements are established on the balance of probabilities for such a defence to be successful. If a defendant does so, the prosecutor is required to disapprove the defence beyond reasonable doubt (Proudman v Dayman at 541).
There are a number of tests which must be satisfied before Sydney Water (here with respect to the rising main charge) can demonstrate that this defence is established on the balance of probabilities.
In Unomedical (No 3), Pepper J set out, at [262], the matters which were required to be satisfied before a defendant can successfully establish such a defence to the mandated standard. Her Honour set out those tests in the following terms (cited authority in support of each proposition omitted): (a) a positive belief in a state of facts which, if they existed, would make the act innocent and take the act outside the operation of the statute; (b) the act must be based on a reasonable belief; (c) the mistake must not be one of law; (d) a mixed mistake of fact and law will generally be a mistake of law; (e) the defendant has the evidentiary burden of raising the defence; (f) the prosecutor must then negative the defence beyond reasonable doubt; (g) a lack of knowledge or mere ignorance is insufficient to establish the defence; (h) there must be more than a general understanding that everything is in order; (i) the mistaken belief must be sufficiently specific to relate to elements of the offence in question; (j) an absence of fault or an absence of negligence is not an element of the defence; and (k) the ground of exculpation is a narrow one.
In order to determine whether Sydney Water has established this defence on the mandated standard of proof, it is necessary that I turn to consider whether each of the matters set out above in the extract from Pepper J's decision have been satisfied on the basis of the evidence in these proceedings (noting that proposition (k) does not give rise to a question - it is a conclusionary observation). However, I have reordered them to provide what I consider is the appropriate sequencing for their necessary consideration.

[104]

The relevant factual framework

The following are the relevant factual elements relating to the pumping station within which Sydney Water's response to the incident was conducted:

the split section of the rising main required to be removed and replaced;
to do this, the rising main required to be dewatered;
dewatering the rising main required both prevention of inflow from the NGRS at the upper end of the rising main and prevention of further sewage being pumped into the rising main from the pumping station;
for reasons of safety for the Sydney Water personnel who needed to plug the upper end of the rising main in the chamber where it joined the NGRS, such plugging (and post repair unplugging) could only happen at times of night‑time low flow (referred to as the diurnal flow period) into the chamber in the NGRS;
in order to prevent further sewage being introduced into the rising main from the pumping station, it was necessary to shut down the pumping station;
Sydney Water arranged for tankers to attend the site to pump sewage from the wet well of the pumping station and transport it to another pumping station via which it could be discharged into portion of Sydney Water's sewage disposal system not impacted by the split of the rising main;
site constraints on the ability for the tankers to access the pumping station for the purpose of pumping sewage from the wet well meant that only two tankers at a time were able to undertake this operation;
because of these site constraints, the tankering operation was unable to remove sewage from the wet well at a rate equal to or greater than the rate that sewage was entering the wet well of the pumping station; and
flow into the pumping station needed to be reduced by operation of the valve at SP0187 to divert effluent away from the pumping station and to the Liverpool Treatment Plant;
the failure of Mr Aquilina to operate that valve so as to divert portion of the flow that would ordinarily enter the pumping station (and be transmitted via the rising main) by redirecting it to the Liverpool Treatment Plant meant that the combination of the backflow from dewatering the rising main and the inflow arising from Mr Aquilina's failure produced too great a volume of sewage accumulation in the wet well of the pumping station for the tankering operation to remove sewage from the wet well without that wet well overflowing into Prospect Creek.

[107]

Sydney Water's foundational submissions

Mr Hemmings submitted that Sydney Water had established all elements necessary for availability to it of this defence and that the Prosecutor had not rebutted it in the required fashion. Therefore, he submitted Sydney Water should be acquitted of this charge.
There were three separate bases upon which Mr Hemmings proposed I should conclude that "the defence of necessity" was established for Sydney Water with respect to the pumping station offence. Those bases were: 1. The increased general impact on the environment if Sydney Water had not acted in the fashion that it did giving rise to the conduct underpinning this charge; 2. The significant impact on the aquatic environment; and 3. The immediate risk to the health or lives of people using Prospect Creek for recreation (or the Georges River in the vicinity of the Prospect Creek's discharge into that larger waterway).
Mr Hemmings proposed that the nature of environmental duties imposed on relevant decision‑makers was continuing to evolve - with that evolution being expansionary of the obligations on those bearing the responsibility for making decisions having a greater weight imposed on them in favour of protecting the environment. As exemplars of this expansion, he cited the decisions of Bromberg J in Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560 (Sharma) (overturned on appeal by the Full Federal Court in Minister for the Environment v Sharma [2022] FCAFC 35 after I had reserved in these proceedings) and that of Preston CJ in this Court in Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority [2021] NSWLEC 92 (Bushfire Survivors) (a decision with respect to which the (then) New South Wales Minister for Energy and Environment announced that there would be no appeal).
He submitted that this evolutionary process warranted me adopting an expansionary view of what was capable of being encompassed by "the defence of necessity" and therefore meant that the first and second of the above foundations for the defence should be adopted by me.
As later discussed in detail, he submitted that the third (conventional) basis for the defence had been established and was a sufficient basis to found the defence.

[108]

Introduction

On 9 December 2021, the Court of Appeal handed down its decision in Veira v Cook [2021] NSWCA 302 (Veira). In June 2018, Ms Veira and five others had entered a poultry farm near Picton; removed chickens contained in cages; and taken them from the poultry farm. Those involved were subsequently convicted in the Local Court of the offence of entering inclosed lands without lawful excuse and interfering with a business in breach of s 4B(1)(a) of the Inclosed Lands Protection Act 1901.
Ms Veira's defence, and that of each of the other defendants, was that their otherwise criminal conduct was excused by "the defence of necessity". They relied on their belief that the chickens were being subject to cruelty, including by being deprived of food and water, and that their conduct was done to protect the chickens from further harm. The Local Court Magistrate rejected that defence, concluding that there was no "situation of imminent peril" that would enliven the defence, and that the actions of the six participants were not "proportionate". RSPCA officers had attended the property earlier that day and ensured the chickens were provided with sufficient feed and water.
All those convicted were granted leave to appeal to the Supreme Court pursuant to s 52 of the Crimes (Appeal and Review) Act 2001. Adamson J, in Lopes v Cook [2020] NSWSC 1776, dismissed their appeals (Ms Lopes was another of those convicted at the same time as Ms Veira). Her Honour described "the defence of necessity" as having three elements, two of which were not satisfied. In particular, the "purpose" element was not satisfied because it required the unlawful conduct to be in response to a threat of death or serious injury to one of those convicted or some other person. The "proportionality" element also was not satisfied, that element requiring, as a matter of objective fact, that there was no alternative response to the threatened harm other than to engage in the wrongful conduct.
Ms Veira sought leave of the Court of Appeal to appeal from Adamson J's decision. Because this method of seeking to invoke the jurisdiction of the Court of Appeal involved a mixed question of fact and law, leave to appeal was required as an antecedent step to the matter proceeding to a substantive hearing. The decision given on 9 December 2021 was confined to the question of whether leave to appeal should be granted. Leave was refused. The judgment of Meagher JA (Basten JA and Emmet AJA agreeing) explained why leave was refused.
Two paragraphs of Meagher JA's reasons are potentially critically relevant to the pumping station charge laid against Sydney Water with which I am dealing in these proceedings.
At [38], Meagher JA said: 38 Leave to appeal should be refused. Neither of the grounds of appeal has any prospect of success. In addition, the terms of the agreed facts and the applicant's reliance on them as establishing the objective reasonableness of her belief as to the necessity of her unlawful conduct would have made this case an inappropriate one for resolving questions as to the elements or requirements of the necessity defence.
Critically, at [41], he also said: 41 There is no support in any of the Australian or English authorities for the necessity defence extending to excuse criminal conduct undertaken otherwise than in response to an imminent threat of death or serious injury, either to the accused or to someone else. That is because the defence exists only where the circumstances are such as to overwhelmingly impel disobedience to the law.
After reading the decision in Veira, I drafted an e‑mail for my Associate to send to the Prosecutor and to the legal representatives of Sydney Water. That e‑mail, sent on the morning after the decision in Veira, was in the following terms: His Honour has read yesterday's decision of the Court of Appeal in Veira v Cook [2021] NSWCA 302 concerning the doctrine of necessity. His Honour has asked me to enquire whether, in light of the reasoning of Meagher JA (particularly at [41]), either party wishes to be heard concerning what might arise from this decision with respect to the Defendant's reliance on the defence of necessity in these proceedings. His Honour requests that I be advised urgently if either party wishes to do so. If so, his Honour will arrange a mention next week to discuss with the representatives of the parties how this will be dealt with in light of the imminent commencement of the law vacation.
Independently, senior counsel for the Prosecutor had also e‑mailed my Associate on the morning after the decision in Veira had been handed down (the e‑mail being copied to Mr Hemmings and Sydney Water's solicitors) drawing my attention to the decision.
The replies to my Associate's e‑mail indicated that the Prosecutor and Sydney Water both wished to be heard as to how I should have regard to the Court of Appeal's decision for the purposes of my consideration of Sydney Water's "not guilty" plea to the pumping station charge, a plea founded on "the defence of necessity".

[110]

The Prosecutor's submissions on Veira v Cook

The position advanced for the Prosecutor was that the decision in Veira acted to preclude Sydney Water from relying on the doctrine of necessity as its defence to the pumping station charge. The Prosecutor's written submissions (footnotes omitted) are set out in full below: Introduction 1 The Prosecutor makes these supplementary submissions in response to the recent decision of the NSW Court of Appeal in Veira v Cook [2021] NSWCA 302, delivered on 9 December 2021. That decision concerned an appeal from the decision of Adamson J in Lopes v Cook [2020] NSWSC 1776, relied upon by the Prosecutor in its written and oral submission in these proceedings, which are presently reserved. 2 For the reasons that follow, the Prosecutor submits that Veira v Cook is binding authority that the defence of necessity is not available for unlawful acts done otherwise than in response to an imminent threat of death or serious injury, either an accused individual or another human being. The Prosecutor further submits that the defence of necessity is not available to the Defendant in these proceedings because any harm to humans sought to be avoided by the Defendant's unlawful acts was not a threat of serious injury or death and was not imminent. The cases put at trial in respect of the defence of necessity The Prosecutor's case 3 The Prosecutor's case at trial was that the defence of necessity was not open to the Defendant. 4 In that regard, the Prosecutor relied on the decision of Adamson J in Lopes v Cook in its written and oral submissions concerning the defence of necessity sought to be relied upon by the Defendant in respect of the Pumping Station Offence. In particular, the Prosecutor relied on Lopes v Cook for the proposition that the defence of necessity does not extend to circumstances where the harm sought to be avoided by the commission is harm to non-humans, chattels or inanimate objects. 5 The Prosecutor's case in this regard was twofold. First, the defence is not available in respect of acts done to avoid harm to non-humans or to inanimate objects, and would therefore not extend to harm to the environment. Second, the Defendant has not satisfied the requirement to identify the imminent and irreparable harm to persons it was bound to protect. These two propositions are summarised at sub-paragraphs [152(a)] and [152(b)] of the Closing Submissions for the Prosecutor. 6 During the Prosecutor's oral closing submissions, Senior Counsel for the Prosecutor informed the Court that the decision of Adamson J in Lopes v Cook was under appeal, that the appeal had been heard, and that the decision of the New South Wales Court of Appeal was at that time reserved. The Defendant's case 7 The Defendant's case in respect of the Pumping Station Offence was that the acts taken by the Defendant in relation to that offence were necessary because the Rising Main had to be fixed. 8 The Defendant, relevantly, submitted the following in its Closing Submissions (citations omitted): The pumping station offence [186] The broken Rising Main had to be fixed. [187] For so long as the Rising Main was broken untreated sewage was being discharged to the environment including to Prospect Creek. Whatever the volume of that discharge actually was, it involved many hundreds of thousands of litres of untreated sewage. Unarguably, that discharge was causing harm to the environment. Similarly, it posed a significant risk of actual harm to human health. As was made clear by the cross‑examination by the Prosecutor of Mr Holland, Prospect Creek was used for municipal recreation. … [188] Further, Prospect Creek flowed to the Georges River. It was not possible to stop the flow to the Prospect Creek. Nor was it possible to effectively use water gates in Prospect Creek. The only options available to prevent further harm to the environment and human health were: ● the attempts to reduce the flow making its way to Prospect Creek; and ● the use of aerators in Prospect Creek. [189] To stop those impacts it was necessary to turn off pumping station 213. The Rising Main could not be repaired when under pressure. … [204] Nevertheless, a decision was made as it was necessary to repair the rising main in order to prevent the imminent continued harm to human health and the environment, the risk of a pollution event from the pumping station had to be taken. … [238] In oral submissions the Prosecutor addressed, in detail, the decision in Lopes. One purpose of that analysis was to support the submission at [152(a)] that the defence of necessity is not available "where the harm sought to be avoided by the commission of the offence is harm to non-humans or inanimate objects such as the land or the waters in a creek." [239] Although Lopes may come to that conclusion in relation to the specific facts and circumstances of that case it is not a conclusion that must be drawn from the authorities. … [244] The categories are not closed. It is, with respect, difficult to conceive that in 2021 the category of the defence of necessity cannot arise in order to protect the environment. The Prosecutor went so far as to suggest your Honour would be "courageous" in apply the defence of necessity to the circumstances of this case. In response to that submission, Sydney Water says firstly that no question of courage arises in the correct application of the common law defence of necessity. [245] To the extent it may be that the category of cases to which the defence can apply might be expanded, that is the usual occurrence in the application of any common law principle… [247] As your Honour noted during the course of discussion "environment" includes both animate and inanimate objects. Even taking the constrained approach to the authorities that the Prosecutor does, there is no reason to assume that the reference in the first element to "others" is to be read down so as to limit its application to humans only. … [253] Clearly, it was in the public interest that an ongoing discharge of significant quantities of untreated sewage to the environment be stopped. It was also necessary to prevent that ongoing pollution event to avoid the inevitable impacts upon human health. [254] The second element of the defence is then frequently expressed (and again regard is had to the element expressed in Mattar) in the following terms: "That the accused honestly believed on reasonable grounds that he or she was placed in a situation of imminent peril." [255] This "element" of imminent peril has been considered by Gleeson J in Rogers. In his Honour's view, it is not a technical condition for the existence of the necessity, rather it goes to the facts in relation to the peril and the proportionate response. [256] Here, the peril was plainly immediate. In fact, it was already occurring. It was ongoing. The pollution event from the break in the Rising Main needed to be stopped and it needed to be stopped urgently. … [267] In relation to the irreparable evil or dire consequences Sydney Water does submit that the continuing harm to the environment itself is enough to satisfy the first element of the defence. As already submitted above, the categories to which the defence will apply are ill-defined and are not closed. The need to avoid harm to the environment sits comfortably with the essence of the defence. The real focus should not be upon whether those dire consequences of harm to the environment needed to be stopped, but rather whether the response was proportionate. [268] Even if that submission is rejected, the pollution event from the Rising Main was one that inevitably must continue until the Rising Main was repaired. Significant volumes of untreated sewage were already making their way to Prospect Creek. If that flow was not stemmed the prospect of actual harm not only to the environment, but to human health was inevitable. Whether because of the public or private necessity, the dire consequences plainly satisfy the requirements of the first element. 9 Senior Counsel for the Defendant dealt with the defence of necessity in oral submissions at T279.48 to T291.22. The thrust of the Defendant's case in this regard, and specifically in relation to the "first element" of the defence of necessity, was as follows. 10 First, it was contended that Adamson J's decision in Lopes v Cook that the defence of necessity did not extend to harm to non-humans and inanimate objects was "not supported by the authorities upon which Adamson J's decision was based"; that "the limits of this element are at present ill-defined"; and that given how common law evolves with changes in society, "the protection of the environment is appropriate for the operation of the defence". 11 To this point, Senior Counsel for the Defendant submitted: "We suggest harm to the environment, of itself, is good enough, but we also suggest that there is the dire consequences of harm to the aquatic environment, and that's good enough…" 12 Second, that because Prospect Creek is used for human aquatic activity, there was a risk of harm to persons using Prospect Creek. Effect of the decision in Veira v Cook 13 At paragraph [41] of Veira v Cook, Meagher JA(with whom Basten JAand Emmett AJA each agreed) held that: "[t]here is no support in any of the Australian or English authorities for the necessity defence extending to excuse criminal conduct undertaken otherwise than in response to an imminent threat of death or serious injury, either to the accused or to someone else. That is because the defence exists only where the circumstances are such as to overwhelmingly impel disobedience to the law." 14 The Prosecutor submits that as a result of the decision in Veira v Cook, in particular paragraph [41], it is now settled law in this State that the defence of necessity does not extend to acts done to avoid harm to non-humans or to inanimate objects. In order to successfully raise the defence of necessity, the Defendant must show that it acted in response to "an imminent threat of death or serious injury, either to the accused or to a person". 15 Veira v Cook is binding on this Court. 16 The Defendant here is unable to satisfy those matters. That is because: 17 First, Carrawood Reserve and Prospect Creek are not human beings. 18 Second, the only threat to humans asserted by the Defendant is an otherwise unspecified risk to "human health" arising from the use of Prospect Creek for "municipal recreation". There was no evidence that any human was exposed to a "threat of death or serious injury". 19 Third, even if the defence was capable of extending to an unspecified threat to human health, the evidence in this case does not permit a finding of even a reasonable possibility that any such threat was "imminent" for the reasons identified at paragraphs [180]-[185] of the Closing Submissions for the Prosecutor. 20 In circumstances where the "irreparable evil" that was sought to be avoided by the Defendant was harm to the environment, and not an imminent threat of death or serious injury to a person, the defence of necessity is not available.

[111]

The submissions for Sydney Water on Veira v Cook

On the other hand, it was submitted for Sydney Water that the decision in Veira did not operate to preclude Sydney Water's reliance on "the defence of necessity", as the Veira decision, for reasons explained, was not binding on me to that effect. However, Mr Hemmings also submitted that, even if, contrary to that submission, I was satisfied that the decision in Veira was binding on me, nonetheless, a proper consideration of the facts relevant to the pumping station charge established "the defence of necessity". Sydney Water's written submissions on Veira are set out in full below. 1. Detailed submissions have already been made in relation to the defence of necessity (see in particular Sydney Water submissions at [234]-[275] and also Transcript Day 8 pages 285-291). In making those submissions, Sydney Water has already submitted that the first element of the defence is often described as being a response to "irreparable evil" (submissions at [237]). 2. Relevantly, it was noted that the limits of that element of the defence are "ill-defined and where those limits lie is a matter of debate." 3. In that context, Sydney Water submitted (and still submits) that the defence is available where the irreparable evil may be inflicted upon: 1. the environment; 2. aquatic life; and 3. human health. 4. For the reasons already submitted, in relation to the third of those categories, there will be dire consequences, being the impact on human health of those persons accessing Prospect Creek. Those submissions are not repeated. 5. The decision in Veira has the potential to be relevant to the Court's consideration of any limits to the element of the defence by reference to dire consequences to the environment or to aquatic animals. These submissions address that potential. The decision in Veira is not binding 6. The first point to note about the Court of Appeal's discussion of any limitations on the elements of the defence of necessity is that the reasoning of the Court of Appeal on that topic is not binding. 7. That decision concerned only the question of leave to appeal (contrary to the Prosecutor's submission at Transcript, Day 7, T229.20). 8. Bell P makes observations about the precedential value of reasons of intermediate · appellate Court's refusing leave to appeal in Blacktown. As the President notes at [23l "in strict terms, all that the Court of Appeal's judgment... decided was that the criteria for the grant of leave to appeal... were not satisfied." 9. Accepting, of course, that observations from the Court of Appeal may be persuasive for Judges at first instance (see [28]) the utility, and in particular the precedential value, depends upon whether the question being determined was solely the question of leave, or as is sometimes the case, concurrent leave and appeal. 10. The decision in Veira did not involve concurrent hearing ofleave and the appeal. The sole question considered was the question ofleave. In those circumstances, and as a general matter, the decision does not precedential effect. 11. There is however further compelling reasons from the decision in Veira itself, as to why care must be taken in the application of principles discussed (in obiter) in that decision. As is noted at [38] the particular facts and circumstances in Veira "would have made this case an inappropriate one for resolving questions as to the elements or requirements of the necessity defence." 12. As a result, applying both the President's observations and the actual Court of Appeal's approach on the application for leave in Veira the obiter reasoning cannot be said to amount to binding precedent. 13. There is a further problem, and it is one which arises from -the circumstances identified in the observations of the President. That is, that it would appear from the reasons in Veira that no detailed argument was had in relation to what the ill-defined limits of the defence should be. For example, no reference is made in Veira to the statement in Loughnan that the limits are ill-defined. 14. Further, Sydney Water addressed this Court in closing submissions in relation to the 2012 Court of Appeal decision in Mattar (and see the submissions at [236]). In Mattar the limits of the defence were not expressed as being limited to threatened death or serious injury to humans. Rather it was that (and the quote at submissions [236] is repeated for convenience): "As the common law defence or excuse of necessity operates in circumstances that bear upon an accused persons in such a way as to ensure him or her to offend in order to avoid even more dire consequence.s The accused bears the evidentiary onus of raising the evidentiary basis of the defence but the Crown bears the legal onus of negativing the defence to the criminal standards." 15. Sydney Water notes that the Court in Veira does cite Mattar at paragraph [17]. However, no reference is made to the description of the elements of the offence adopted by the Court of Criminal Appeal in that matter (and summarised at [7] of Mattar). 16. In Sydney Water's submission, the state of the binding authority on this Court remains as already submitted. That is, that the limits of the element remain ill defined and remain a matter of debate. 17. On those authorities, and for the reasons already submitted and addressing in the submissions the first element of the defence only, it is open to the Court to find the defence of necessity available in circumstances where the dire consequences will be inflicted upon the environment, aquatic animals or human health.

[115]

The "necessity" defence and human health

However, it remains necessary to consider whether or not Sydney Water can rely on "the defence of necessity" with respect to what is submitted to be the heightened risk of adverse impacts on human health or life had Sydney Water not acted in the fashion which it did.
First, it is to be observed that the Prosecutor does not submit that "the defence of necessity" is not available to Sydney Water (Prosecutor's written closing submissions at paragraph 153) but does submit that, although available, the three essential elements requiring to be satisfied to establish such a defence cannot be established.
Although I have a reservation as to whether an incorporated entity such as Sydney Water can avail itself of "the defence of necessity" (all of the cases to which I have been referred concerned instances where the defence has sought to be relied upon by one or more individuals and the language used reflects the imminence of harm to the individual or others associated with that person), I proceed on the basis that, as the Prosecutor has not questioned the theoretical availability of this defence to Sydney Water, I should assume that it is, at law, available to a corporate entity.
The essence of the Prosecutor's position is that the three elements required to be established for "the defence of necessity" to prevail (derived from the Victorian case of R v Loughnan [1981] VR 443 - Loughnan) - particularly the first of them - have not been established. It is not necessary to set out the passage relied upon in Loughnan for these propositions.
The three factual elements required to be satisfied here are that: 1. There must be a belief on reasonable grounds of the need to avoid immediate and irreparable harm to human health or life in the circumstances - where Sydney Water (or a relevant person on its behalf) believed Sydney Water had a responsibility to prevent that harm from occurring; 2. The risk of such harm was one which arises with urgency or immediacy; and 3. The unlawful act committed in order to prevent the harm must have been appropriately proportionate to the harm avoided by its commission.
In R v Rogers (1996) 86 A Crim R 542 (Rogers), Gleeson CJ said (at 546): The corollary of the notion that the defence of necessity exists to meet cases where the circumstances overwhelmingly impel disobedience to the law is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law. Nor can the law encourage juries to exercise a power to dispense with compliance with the law where they consider disobedience to be reasonable, on the ground that the conduct of an accused person serves some value higher than that implicit in the law which is disobeyed. This is why, historically, it has been regarded as important to seek to limit the scope of the defence by referring to requirements such as urgency and immediacy. However, I accept the appellant's submission that, consistently with the approach to self-defence taken by the High Court in Zecevic [Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; 162 CLR 645], it is now more appropriate to treat those 'requirements', not as technical legal conditions for the existence of necessity, but as factual considerations relevant, and often critically relevant, to the issues of an accused person's belief as to the position in which he or she is placed, and as to the reasonableness and proportionality of the response.
The above authorities are those that fortify me that, in these circumstances, the decision in Veira is both correct and is binding on me. It is in this context that I now turn to address the three elements which I have set out above.
The written closing submissions for Sydney Water summarised, at paragraphs 187 to 189, the reasons why the pumping station was turned off, thus resulting in the filling and overflowing of its wet well causing discharge of untreated sewage into Prospect Creek. These paragraphs were in the following terms: 187. For so long as the Rising Main was broken untreated sewage was being discharged to the environment including to Prospect Creek. Whatever the volume of that discharge actually was, it involved many hundreds of thousands of litres of untreated sewage. Unarguably, that discharge was causing harm to the environment. Similarly, it posed a significant risk of actual harm to human health. As was made clear by the cross‑examination by the Prosecutor of Mr Holland, Prospect Creek was used for municipal recreation. 188. Further, Prospect Creek flowed to the Georges River. It was not possible to stop the flow to the Prospect Creek. Nor was it possible to effectively use water gates in Prospect Creek. The only options available to prevent further harm to the environment and human health were: ● the attempts to reduce the flow making its way to Prospect Creek; and ● the use of aerators in Prospect Creek. 189. To stop those impacts it was necessary to turn off pumping station 213. The Rising Main could not be repaired when under pressure.
In this context, it is next appropriate to set out the element of the Prosecutor's cross‑examination of Mr Holland that is relevant. The relevant element is slightly longer than that cited by Mr Hemmings at the conclusion of paragraph 187 of the written submissions reproduced above. The relevant passage reads (Transcript 7 September 2021, page 189, lines 2 to 6): Q. And the western half of 213 rising main was adjacent to a waterway? A. That is my understanding, yes. Q. That waterway was used for municipal recreation? A. I'm not exactly sure what the use is in that area, but I can assume so, yes
The first matter to be explored is whether there was a person in authority for Sydney Water when the pumping station was shut down and who caused, or contributed to causing, that decision to be taken because of the fear of immediate and irreparable harm to human health or life. Such a fear must be articulated in some fashion that clearly demonstrates it as being held.
It is, therefore, appropriate to examine all the evidence that might inform me as to who had the authority to make that decision and, in making that decision, what motivated the taking of that decision.

[117]

Prospect Creek, recreational use and impacts on the creek

That Prospect Creek is used by the public for aquatic recreational purposes was a proposition advanced by the Prosecutor during cross‑examination of Mr Holland as earlier set out. This position was not disputed (Mr Holland assuming it to be the position but not positively asserting that he knew this to be the position).
It is self‑evidently the position that the incident occurring, as it did on 14 January 2019, took place in mid‑summer. It took place during a period of dry weather. It is also self‑evident that the incident took place during the Christmas school vacation. These factors combined meant there was the potential of risk to human health by a significant volume of sewage being discharged into Prospect Creek. However, for the purposes of determining whether Sydney Water has, on the balance of probabilities, established that the decision to shut down the pumping station and causing the discharge of sewage to Prospect Creek was the belief it was necessary to avoid an immediate and irreparable risk of harm to human health or life, requires examination of any evidence concerning the decision‑making reasons of those responsible for Sydney Water's response to the incident and the decision to shut down the pumping station.
I have undertaken a document search of all the material contained in the Court Book comprising the Prosecutor's evidence which was relied upon for the purposes of these proceedings (that is all of the material in Part A of the Prosecutor's material - Part B being relevant only for any possible future sentencing proceedings). The search was for the words "recreation" and "recreational".
Although there were references to these two terms, they were generally in the context of broad policy documents (not only those of Sydney Water, but also those published by external organisations such as the CSIRO). The two Sydney Water documents that contained specific references to these terms in the context of the discharge of sewage into Prospect Creek were both prepared after the event (being documents A21.005 and A21.007). Neither of these provide any specific assistance to Sydney Water in my consideration of "the defence of necessity" here being discussed.
It is also to be noted that one Sydney Water document (A23.034) refers to recreational use in the context of one of Sydney Water's sewer main assets but references this at a location unrelated to that being considered in these proceedings.
As a consequence, the only direct evidence in these proceedings on the recreational use of Prospect Creek is that which arises from the two questions and answers in Mr Holland's oral evidence as set out above.
I turn now to the impacts on Prospect Creek. The SOAF notes, at paragraph 46, Sydney Water's estimates of the duration and volume of the sewage overflows. For present purposes, it is appropriate to note that the overflow from the rising main (over approximately thirty-two hours) and the pumping station (over approximately one‑and‑a‑half hours) were estimated to total about 600,000 litres, with that volume being approximately equally divided between the two sources.
The introductory text to paragraph 46 of the SOAF, being the paragraph which sets out the Prosecutor's position concerning the volumes of sewage discharged from the two sources (the duration of the discharges not being in dispute), was in the following terms: 46. Dr Fleur Pablo, Senior Scientist, Environmental Forensics - Ecotoxicology, with the NSW Department of Planning, Industry & Environment, has identified a number of errors in the calculation by Sydney Water of the estimated volume of the overflows. Correcting for those errors, Dr Pablo has estimated the total volume of the overflows to be approximately 1.5 megalitres as follows:
Dr Pablo's estimates were that 821,000 litres had been discharged from the rising main and 652,000 litres had been discharged from the pumping station - thus resulting in a total discharge of 1,473,000 litres of sewage. It is to be observed that Dr Pablo had deposed an affidavit dated 9 October 2020, but that this affidavit, being in Part B of the Prosecutor's evidence, was not relied upon for the purposes of this hearing to address the question of whether or not Sydney Water was guilty of the three offences with which it has been charged. I therefore confine myself, to the extent that it is necessary to do so, to having regard only to the limited information provided as to the sewage volume calculations proposed by Sydney Water and by the Prosecutor. This does not, as will be seen, require any evaluation of which calculation might be correct.
The Prosecutor's closing oral submissions concerning the volume of sewage discharged from the pumping station were in the following terms (Transcript 15 September 2021, page 240, lines 2 to 24): We ask your Honour just to look at the evidence as to the quantity of sewerage discharged from the pumping station over the one hour and 27 minutes duration of that overflow which was reported by the defendant to be 282,000 litres, which, on the evidence, represented 47% of the total sewerage discharged from both the rising main and the pumping station over the period from 14 January up to and including 16 January. In addition, there's evidence from a Dr Pablo that estimated the quantity of sewerage discharged from the pumping station to be much larger, 652,000 litres or 44% of the total sewerage estimated to be discharged from both the rising main and the pumping station over that three-day period. We make the submission, para 142, that regardless of which figure is accepted, it's clear that the rate of discharge of sewerage from the pumping station was significantly higher than the rate of discharge from the split rising main, and we give some additional explanations as to why that might be so, but what it means is that the extent of water pollution as a result of the discharge from the pumping station was likely at least equal to, if not greater than, that which resulted from the discharge of sewerage from the split rising main. This is not a case where the accused had no alternative to doing what it did to avoid the harm, in our respectful submission, having regard to the proportionality of the harm flowing from the charged conduct when compared with the harm which it was trying to bring to an end.
Paragraphs 141 and 142 of the Prosecutor's written closing submissions (mentioned in the above transcript passage) should also be set out in full. It was in the following terms (footnotes omitted): 141. The quantity of sewage discharged from the Pumping Station over the 1 hour 27 minutes duration of the overflow was reported by the Defendant to be approximately 282,000 litres. As such, it represented 47% of the total sewage discharged from both the Rising Main and the Pumping Station over the period from 14 January 2019 up to and including 16 January 2019. Dr Fleur Pablo, however, has estimated the quantity of sewage discharged from the Pumping Station to be 652,000 litres, or 44% of the total sewage she estimated was discharged from both the Rising Main and the Pumping Station over the period from 14 January 2019 up to and including 16 January 2019. 142. Regardless of which figures are accepted, it is plain that the rate of discharge of sewage from the Pumping Station was significantly higher than the rate of discharge from the split Rising Main. Moreover, the sewage discharged from the Rising Main had to flow across land before entering waters and by the use of bunds and tankers was partially either redirected into the gravity main (and thereby inevitably returned to the Pumping Station) or removed and conveyed by tanker to another sewer in a different sewage catchment. Accordingly, not all of the sewage discharged from the Rising Main reached waters. By contrast, the entirety of the sewage discharged from the Pumping Station was discharged directly into waters. This means that the extent of water pollution as a result of the discharge from the Pumping Station was likely equal to if not greater than that which resulted from the discharge of sewage from the split Rising Main.
It is to be noted that the Prosecutor did not seek to adduce evidence that went any further than this position outlined in the SOAF. The Prosecutor's opening written submissions said relevantly, at paragraph 77: 77. Because the Defendant objects on the ground of relevance to a fact in issue in the hearing as to guilt, there will be little evidence at this hearing as to the details of the pollution and volume of polluting material. For the same reason, until and unless there is a hearing on sentence, there will be no evidence as to collection and analysis of samples from the affected waters.

[118]

Submissions on knowledge and/or belief

The Prosecutor submitted that there is no evidence of any articulation, by any person with relevant authority, at any level of Sydney Water (up to and including Board level) as to the existence of the necessary state of mind required to satisfy the first of the prerequisites derived from Loughnan as necessary to found "the defence of necessity".
Sydney Water's written closing submissions responded to this in some detail, proposing that there was, in fact, such evidence. It is necessary to set out all the relevant passages from those submissions and then undertake an evidentiary analysis in order to determine which of the Prosecutor or Sydney Water is correct on that point.
The relevant portion of Sydney Water's written closing submissions detailing the processes involved with the shutting down of the pumping station (the shutting down being that which caused its overflow into Prospect Creek) were contained at paragraphs 203 to 211. Those paragraphs are set out below: 203. It is an agreed fact that Sydney Water considered the risk that sewage would overflow from the Pumping Station while it was shutdown and arranged for tankers to be present to manage the level of sewage. It was 'Sydney Water's assessment … that there would be a partial overflow if the inflow and draining of the rising main was occurring and exceeding tankering capacity during the shut down period'. In particular, this assessment was made by Sydney Water personnel Peter Rennex (Area Manager West), John McKeon (Operator West) and John Daoud (Delivery Manager and Site Project Manager). 204. Nevertheless, a decision was made as it was necessary to repair the rising main in order to prevent the imminent continued harm to human health and the environment, the risk of a pollution event from the pumping station had to be taken. 205. The belief as to the imminent harm was reasonable, and was held by Sydney Water. The R3 report dated 18 February 2019 states: Sydney Water considered that this [a shut down of the pumping station during low flow] would minimise the overall volumes of wastewater flow released and therefore would minimise the impact on the wider environment. Due to safety issues associated with installing the plug, Sydney Water decided to shut down the pumping station at the next low flow period which also minimised the amount of any overflows, and therefore impact on the wider environment. (emphasis added) … If the shutdown had been delayed any later, then there may have been a greater overflow from the pumping station as flows increased during the morning peak 206. The following Sydney Water personnel in particular were aware of making sure the overflow did not continue into the morning peak: a. Zane Ke, the engineer coordinating the repair of the rising main on 15-16 January 2019: Minimising spillage into the environment and recommissioning the rising main before the morning peak was 'the main goal'; 'If we're going to allow a station to go to overflow, we would prefer in a controlled manner in the off peak period …'; 'that's another reason why we undertake the isolation be cause we know downstream we set out the best containments possible and let's make the most out of the off peak period so make sure it doesn't all flow to the morning peak'; 'unfortunately time was against us, we just had to make a decision.' b. Tracey Foster, the network team leader who managed Sydney Water's response to the incident on the nights of 14-15 and 15-16 January 2019: 'I know we needed to have it on by a certain time. I believe that was like a [sic] 7 o'clock.' c. Gary Hurley, manager Sydney Water Networks: 'the whole objective of the entire approach was to minimise the environmental impacts' and that the rising main replacement needed to occur 'within as short a window as possible'; the peak flow observations 'definitely' come into consideration in the flow isolation plan and the execution of the repair. 207. Mr McKeon informed Tenille Lawrence‑Haskew on 15 January 2019: 'It will be necessary to bypass the pumping station in order to shut down the rising main.' 208. Options for the replacement were discussed and the site was prepared. 209. Sydney Water engineers were responsible for making calculations in relation to what measures would be required to deal with the flow isolation.94 A site risk assessment was carried out between all relevant stakeholders including the Network Area Team, Network Services, Construction Contractor (Interflow) and Field Supervisors: They evaluated the options available to protect the environment, ensure safety and repair the broken rising main. … Due to safety concerns, flow volumes and direction of flow, it was agreed to cut into the broken rising main once the downstream carrier was traversed during a low flow period. 210. Sydney Water prepared a Flow Isolation Flow Management Plan (FIFM).96 The goal of the FIFM was to safely repair the rising main while at the same time minimising the amount of overflow to the environment and recommission the rising main before the morning peak of flows. 211. Sydney Water had all possible containment measures in place to limit the volume of the overflow from the pumping station. The Prosecutor does not say that Sydney Water did not take all necessary and reasonable steps to repair the broken main as quickly as possible. Such steps include the measures put in place to manage the isolation of the pumping station. These steps included reconstructing the coffer dam, installing aerators and booms in Prospect Creek, making an attempt to operate valve 2 at SP 187, having the maximum number of tankers present to manage the wet well level of SP 213 by pumping out wastewater to an alternative location, setting up a manifold to allow fast extraction from the wet well to the tankers, installing booms around the pumping station overflow point.
In addition to the above more general extracts from Sydney Water's closing written submissions concerning the shutting down of the pumping station, the written submissions also expressly addressed, at paragraphs 270 to 274, the Prosecutor's submission that the requisite state of mind was not held by or able to be attributed to Sydney Water. It is appropriate, before turning to consider in detail the evidence on this point, to set out these further paragraphs from Sydney Water's written submissions. They are in the following terms: 270. In the Prosecutor's submissions at [188] the Prosecutor states "in the absence of any specific statutory provision to the contrary or otherwise, the question of whether the Defendant had a particular state of mind is to be determined by reference to common law principles." That statement may be accepted. The problem, for the Prosecutor, is that the POEO Act does contain a specific statutory provision to the contrary or otherwise. That is s 169C. 271. In relation to the need for Sydney Water to have held the honest belief, the Prosecutor relies upon the fact that "no evidence has been identified that the Board of Directors of the defendant, or any person whose state of mind may be properly attributed to the defendant, held the requisite honest belief…". That is, with respect, a plainly flawed approach to the state of mind of Sydney Water. That is because s 169C of the POEO Act is a provision specific to "evidence as to state of mind of corporation". That provision provides: "(1) Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular state of mind, is evidence that the corporation had that state of mind. (2) In this section, the state of mind of a person includes - (a) the knowledge, intention, opinion, belief, or purpose of the person, and (b) the person's reasons for the intention, opinion, belief or purpose." 272. The effect of s 169C has been considered by the Court of Criminal Appeal in Wollondilly Abattoirs. At [33] and [34] the Court held: "[33] It facilitates proof of a corporation's state of mind, in that if the only evidence adduced is that of the state of mind of a relevant individual, that will be sufficient evidence to discharge the prosecutor's onus of proof. But where there is other evidence, all the evidence must be considered. [34] However, the section performs a useful function in facilitating proof of a corporation's state of mind, by providing that evidence of the state of mind of a relevant individual is some evidence of the state of mind of the company. This enables a prosecutor to adduce legally sufficient evidence of the company's state of mind by relying on evidence of the state of a single relevant individual. As explained in the passage extracted above from Ex parte Ryan; re Johnson, it has the practical effect of casting on the corporation the evidentiary onus of adducing some evidence to the contrary. Absent evidence from the directors to the contrary, a Court would be entitled to treat that evidence as proving that the company had the relevant state of mind. However, where there is other evidence, all the evidence must be weighed to determine the ultimate question, which is whether the company, by its controlling mind, had the relevant stet of mind." 273. Contrary to the Prosecutor's submission set out above there is no necessity for there to be evidence of the Board of Directors. Further, there is clear evidence that employees of Sydney Water had the relevant particular state of mind. That can be seen from the following extracts: a. Tracey Foster, the network team leader who managed Sydney Water's response to the incident on the nights of 14-15 and 15-16 January 2019: "I know we needed to have it on by a certain time. I believe that was like a 7 o'clock. I just can't put my finger on the actual date" b. Zane Ke, the engineer coordinating the repair of the rising main on 15-16 January 2019: "containment was in place before we commenced isolation so that's another reason why we undertake the isolation because we know downstream we set out the best containments possible and let's make the most out of the off peak period so make sure it doesn't all flow to the morning peak" c. Gary Hurley, manager Sydney Water Networks: "Again, the whole objective of the entire approach was to minimise the environmental impacts. The root cause of that was a - a flow of wastewater into the environment. So the whole plan was predicated on minimising the volume - total volume of wastewater that flowed to the environment. So there were a number of actions put in place. During the replacement of the pipe, it would have been - there was a need to go and isolate the inflow - incoming flows into the station. There was a need to arrange tankering (as said) to supplement the function of the pumping station, and then to actually get in and get the pipe - the defective pipe out and replaced with - within as short a window as possible. Whilst maintaining the safety of the crews" "129. Does peak flow observations have come into that consideration? Definitely. Definitely. 130. Do you know what specifically was - was identified as being - - - The - - - 131. - - - peak flow (indistinct)? No - not specifically, but those - that station is 660 litres a second discharge, so it's a bi station. So the flow is diurnal. It's got patterns through the course of the day. In this individual station it - the lowest flow is early morning, as you might imagine. Overnight and early morning. It ramps up pretty rapidly in the morning as people start to get up and have showers and breakfast and do clothes washing and stuff, so the flow rapidly increases early in the morning. It slows down a little bit in the middle of the day and then rapidly increases again after when people start to get home again and do normal domestic things. So that's a pretty typical pattern of a-of a-a local pumping station. And this one has-its discharge point during high flows, if the pipe is empty it will run backwards down the pipe. Under high flows. So it's not only the flow into the station; it's the flow into the carrier that it's…" 274. Finally, it is also an agreed fact that "before the shutdown of the pumping station, Sydney Water considered the risk that sewage would overflow from the pumping station while it was shutdown.
In both the oral and written closing submissions for Sydney Water, questions of authority and how it arose for consideration of the availability of "the defence of necessity" were canvassed in the fashions set out above.
For reasons which I set out earlier, I am satisfied that the first and necessary step to be considered is that which is to be derived from Loughnan and from Rogers. In this context, it is clear that "the defence of necessity", in the terms considered by those authorities, is different from either consideration of urgency to prevent an impact of some general kind (in this instance, I am not to be taken to be questioning the urgency of the requirement to repair the rising main, nor am I to be taken to be suggesting that the limits of what might potentially fall within the defence are clear and precise) or broader adverse environmental impacts. Indeed, as identified in Sydney Water's written submissions, the limits of "the defence of necessity" are "ill-defined and where those limits should lie is a matter of debate".
I have also carefully read that which was set out in Sydney Water's written closing submissions at paragraphs 234 to 268. The latter portion of this element of the written submissions, in my assessment, go to the question of the second and third matters derived from Loughnan and, given the conclusion I have reached that I do not have sufficient and adequate evidence concerning the state of mind of those who determined to shut down the pumping station to make "the defence of necessity" available to Sydney Water, it seems to me that those matters are likely to arise for consideration in sentencing Sydney Water for the pumping station offence.
Under those circumstances, it is not appropriate for me to comment on them in this decision as those matters will be inevitably part of the material requiring consideration at the future sentencing hearing.

[119]

Consideration of the first of the Loughnan tests

Whether there is a factual basis upon which this element of Sydney Water's defence to this charge has been established requires detailed examination of what can be drawn from the evidence of all those known to have been involved in decision‑making at the site in response to the failure of the rising main (including, but not confined to, the specific decision to shut down the pumping station).
As can be seen in the earlier set out extracts from Sydney Water's closing written submissions, a number of members of Sydney Water's staff have been nominated (expressly or by inference) as decision‑makers on the site in the context of the decision to close down the operation of the pumping station.
In order to glean what is capable of being understood concerning the decision‑making process, and what might have been the motives of those involved in in decisions being made (particularly to what extent, if any, matters necessary to be demonstrated in satisfaction of the first of the matters arising from Loughnan), it is appropriate to consider, where I have it, the evidence of each of those nominated individuals as potentially relevant on that point. For those with respect to whom I do have evidence (oral and/or written contained in the material tendered by the Prosecutor), it is convenient to consider the evidence of those individuals in the order that those persons are nominated in the first of above extracts from Sydney Water's written submissions.
Before doing so, I should note relevant points concerning two of the nominated Sydney Water personnel:
as a consequence of the forensic decision for Sydney Water to limit its evidence to that of Mr Holland (as earlier described), although Mr John McKeon, Sydney Water's Operator West, is nominated in an above extract from Sydney Water's closing written submissions at paragraph 203, Mr McKeon's affidavit (at Document C76.001) and related documents (at Document C77.001) were not tendered by Sydney Water and are not in evidence. As a consequence, I have not examined this material or considered it in the context of the above extracted submissions; and
no material from Mr Daoud, the final member of Sydney Water's personnel listed in paragraph 203 of Sydney Water's closing written submissions, appears to have been provided in the Court Book.
In paragraph 203 of the above extract from Sydney Water's written closing submissions, the first person nominated as being involved in making the decision to shut down the pumping station was Mr Peter Rennex, Sydney Water's Area Manager West. Mr Rennex was interviewed by officers of the Prosecutor on 9 September 2019. A transcript of his record of interview is in evidence at Document A30.027. I have read the entirety of this transcript of his interview. It is appropriate to set out those matters from his record of interview transcript that I consider are potentially informative of his role and of the making of the pumping station shutdown decision.
The transcript of Mr Rennex's interview records the following at questions and answers 39 and 40: Q. 39 So, tell me about what your involvement was in relation to the incident? A. My involvement happened some time post the initial response. When the page was upgraded to a, to a - something a little bit more than what the initial page came out. I think the initial page came out as just a sewer overflow and then there was an incident declared so I attended site and yeah, didn 't take charge. I was there purely as an observer. The team leaders were in charge of the site. The team leaders and the staff. I was there more to provide any support that they required in - they're the experts. Q. 40 And who were the team leaders involved? A. The initial team leader was Tracy Foster. She was there on that night with her crew and then the following day was Andy Ryder. 'Cause they work different shift patterns, so.
It is to be noted that there is no evidence from Mr Ryder.
The next relevant element of Mr Rennex's record of interview is contained in questions and answers 127 to 130. These were in the following terms: Q. 127 Were you on site when the overflow occurred from the pumping station? A. I was. Q. 128 Okay. Are you able to describe how you became aware of it and what you were - the information you were provided with? A. Yeah. I was woken up. I was asleep at that stage. I was having a nana nap in my car. Yeah. So, I was, I was woken up by my, by the STO that was on site. Saying we had a potential overflow. At that stage, it was potentially but we were too far committed at that stage to, to turn back. Q. 129 Do you recall what time that was? A. No, I do not. Q. 130 No? Do you recall if you recorded that time anywhere? A. Zane Ze who is the STO was able to record that. I believe that was put into one of the documents.
The third element of Mr Rennex's record of interview is contained at questions and answers 142 to 146. These were in the following terms: Q. 142 Okay. Was there a team leader on site? A. That would have been Tracy Foster again. Q. 143 At the commencement of the operation to replace the pipe and the isolation of the flow, who was the team leader? A. It would have been Tracy. Q. 144 Tracy. Were you provided any information about the cause of the overflow from the pumping station? Other than rising water? A. Water comes in, water's got to go out. No. Q. 145 Okay. Were you provided any information which you understood to be - we talk about the assessment that's taken - you spoke of the assessment that's taken place prior to the isolation of flow? A. Yeah. Q. 146 And the factors, the factors that are considered and that you understood that the response prior to the isolation of flow was sufficient to - that you didn't believe that an overflow would occur? Is that correct? Q. That's correct. That is correct.
The fourth relevant of Mr Rennex's record of interview was questions and answers 225 to 228. These were in the following terms: Q. 225 Okay. I just wanted to quickly ask a question about when you became aware from Zane that an overflow was occurring from the pumping station. A Yeah. Q. 226 Were you aware of any - and I understand you said before the containment measures were deployed in relation to the, to the containment of the flow from the pumping station. Are you aware of any further response measures that were added to reduce the flow going into the pumping station at that time? A. At that, at that stage? We were already in a, in a situation where we were holding back upstream so there was nothing else we could do upstream. It was literally what was coming in to the catchment. Q. 227 Okay. A. And we just couldn' t - you can't contain that. Q. 228 Yeah. Sorry if you 've answered this question, but the detention time of the pumping station was that taken into consideration? A. Yes, it was.
The final relevant element of Mr Rennex's record of interview is questions and answers 236 to 238. These were in the following terms: Q. 236 Do you know if that specific detention time was considered - the 40 minute detention time was nominated and you' re aware of that? Now that we've - - - A. 100 percent. Q. 238 Okay. A. Yeah. It was definitely considered as part of our, our risk planning for the night time shut down. Q. 239 I understand that prior you've indicated that you have fairly limited or no involvement in scheduled or decisions that relate to the scheduled maintenance of rising mains? That's correct? A. That's correct.
In paragraph 206(a) of the above extract from Sydney Water's written closing submissions, the person nominated as potentially being involved in making the decision to shut down the pumping station was Mr Zane Ke.
On 26 September 2019, Mr Ke was interviewed by officers of the Prosecutor. In the above extract from Sydney Water's written closing submissions, elements of the transcript of Mr Ke's record of interview are quoted. In this context, it is appropriate to turn further to the terms of his interview and, subsequently, to the terms of his oral evidence.
A copy of the transcript of his record of interview is in evidence at Document A23.079. Mr Ke confirmed that his role at Sydney Water was Lead Network Corporations [Operations] Engineer and that he was in this role at the time of the incident giving rise to the charges against Sydney Water (questions and answers 17 and 18).
It is to be noted that, at several points in his record of interview, Mr Ke notes that Mr Rennex was his immediate supervisor.
The first relevant element from Mr Ke's record of interview are questions and answers 26 and 27. These were in the following terms: Q. 26 So the EPA understands that between 14 and 16 January 2019, a large 6 metre long crack on the rising main caused overflows to occur from the rising main and from the pumping station during a subsequent response to the overflows by Sydney Water. These overflows resulted in sewage spreading and pooling over a large area of Carrawood Reserve before spilling into Prospect Creek and we'll refer to that description as the incident from now on. Were you involved in Sydney Water's response to the incident? A. Yes I was. Q. 27 Can you tell me what your involvement with that response was? A. Yeah I was the operations engineer on call and then also, but onsite to undertake site coordination with repair and (indistinct) asset to be repaired and eventually recommissioned.
The second relevant element of Mr Ke's record of interview is that contained in question and answer 33, these being in the following terms: Q. 33 So you agreed that you attended the site on the 15th so can you explain what you did when you arrived on site? A. What I recall was when I attended the site, approximately 8 o'clock, I had a site meeting with everyone on site including (indistinct) Ventia and all the responsible people on site. I assessed the situations and reported back to my manager about what I witnessed and then we got everyone together to diverse a plan on how we can repair the issue whilst minimise the environment impact yeah.
Mr Ke was questioned concerning the overflow from the pumping station. This is set out in his record of interview from questions and answers 117 to 144. It is not necessary to reproduce all of this element of the transcript. It is sufficient to note that no mention is made by Mr Ke of concerns about environmental consequences of the discharge of sewage into Prospect Creek (whether from the split in the rising main or from the pumping station).
It is, however, appropriate to set out questions and answers 131 to 133 as they provide a further understanding of the process of site decision-making relevant to the overflow from the pumping station. These questions and answers were in the following terms: Q. 131 Were you involved in the containment response to that second overflow from the pumping station? A Sorry you mean the setup of the containment? Q. 132 Yes. A. No, I recall - I got feedback from the site supervisor, team leader that a containment was in place before we commenced isolation so that's another reason why we undertake the isolation because we know downstream we set out the best containments possible and let's make the most out of the off peak period so make sure it doesn't all flow to the morning peak. Q. 133 Who is the team leader that provided that confirmation? A. The team leader I talked to was Tracy.
The final relevant extract from Mr Ke's record of interview is questions and answers 191 to 193. These were in the following terms: Q. 191 Sorry, I should have asked this question back when we were talking about the pumping station overflow but - - - A. Sure. Q. 192 - - - do you have any knowledge of the cause of the overflow at the pumping station in understanding that you believed it to be the low peak time? Just, I don't know whether I'm able to answer the question correctly but we do know there ' s a high chance the station will overflow during the isolation but at the time, we picked the ideal period where the flow has gotten down, to this day I believe we made the right decision to do this work in a controlled manner given all the uncertainties. For example isolation, that at the time the whole area was submerged under water, you weren't able to dig on it until you do the isolation, until you do the dewatering but to do that, you have to pretty much expose the pipe to see the length of the pipe is broken. If the crack happened to extend beyond one length, we took six hours to repair one six metre length and you would say if you do two, we probably we extend that to two to three hour if not more so therefore we definitely enter the morning peak period and then the station would not be able to cope with the inflow even with the tankering as proven previously, and then we would have to pump the rising main to alleviate once more or (indistinct) the station but pumping the rising main is not feasible because it's been plugged and you can't remove the plug because the flow is too high so there's - yeah we believe we made the right decision. Q. 193 Given what you've just said so is it correct in saying you understood that the likelihood of overflow was increased from a manageable position taking all steps to mitigate it at the point where you decided to isolate the flow that you had maximum resources applied to it with no other alternative to mitigate an overflow that had increased the risk of an overflow? A. I believe at the time we took all measures possible to mitigate the consequence of the overflow yes.
During the course of his interview, Mr Ke made several mentions of, and was asked questions about, a document referred to as the FIFM (the Flow Isolation/Flow Management plan). A copy of this document was initialled by Mr Ke and is reproduced in Document A23.081. It nominates Mr Ke as the plan coordinator for actions to be taken pursuant to this document. An examination of the document shows that only one mention is made of potential adverse environmental outcomes of any of the activities proposed to be undertaken in the implementation of the FIFM (this document being the complete operational plan for addressing replacement of the split element of the rising main).
The mention is in a table at Document A23.081.009. On this page, in the column headed "Hazard", the subheading is "What can harm you?" and the FIFM records "Overflow at SPS". The second and third column are jointly headed "Impact". The first column subheading is "What can happen?" and the FIFM there records "Pollution of the environment". The second column subheading is "How can it happen?" and the FIFM there records "High wet well level at SP0419 and SP0384".
The next column records that the consequence would be "Severe" whilst, in the next column, this outcome was recorded as "Unlikely".
Mr Ke gave oral evidence on the second day. The above elements of the FIFM were touched upon in Mr Ke's cross‑examination.
He was cross‑examined by Mr Hemmings. The only element of his oral evidence raising any matter in the FIFM concerning the environment was in the following terms (Transcript 31 August 2021, page 76, lines 30 to page 77, line 13): Q. Thank you for that correction. Yes. Then the third item on this page is overflow at SPS. So this is identifying a risk of harm from an overflow at the SPS. That's the pumping stations. Is that right? A. That's right. Q. And this is the potential harm is pollution to the environment and firstly this addressing 419 and 384 under "How it can happen." Do you see that? A. That's right. I do see it now. Yes. Q. So do I understand it that in at the time of low flow in turning off 419 and 384, there is the possibility that they might overflow and pollute the environment? That's what this risk is trying to assess? Sorry, that is the risk this is attempting to assess. A. That is right. First station ... (not transcribable) ... pumping station ... (not transcribable). Q. And so that's being controlled by monitoring the levels and letting you know when they reach 70%? A. That's right. Q. That's what the control is suggesting to be done? A Yeah. Q. And the reference at the bottom of "Controls to tanker flows from SPO213", what is that referring to? A. That is referring to..(not transcribable)..from 213 where the tank is. Q. So the way in which an overflow - to prevent pollution to the environment at 213 was to be dealt with by the FIFM was the tanker in..(not transcribable).. A. Sorry. I missed the last part. Q. Looking at the third entry in this table, the way in which overflows at SP0213 that might pollute the environment was to tanker flows from SP0213. A. That is right.
In paragraph 206(b) of the earlier reproduced extract from Sydney Water's written closing submissions, the second person nominated as potentially being involved in making the decision to shut down the pumping station was Ms Tracey Foster. I have read, carefully, the transcript of her interview by officers of the Prosecutor which took place on 26 September 2019. The transcript is in evidence at Document A 23.073.
Ms Foster described, at questions and answers 99 to 101, her role on site during the incident (noting, as not presently relevant, that she had a "shift break" during her involvement on the site). These questions and answers were in the following terms: Q. 99 Okay. Yeah. And who were you reporting to throughout the incident? A. Peter Rennex. Q. 100 And he's your supervisor? A. Yeah. He's my manager. Q. 101 So, in your - on the 14th were you in charge of the incident response? A. Yes.
Ms Foster was also asked about the role of Mr Rennex during the incident. She said (questions and answers 122 to 124): Q. 122 That's okay. Did you understand that Peter Rennex had any particular responsibilities or duties at the site in response to the incident? A Yeah. Definitely backing myself and that's why he was there to back everyone up. Make sure that everything, if there were any communication or if there were any delays he was there to - - - Q. 123 Okay. Were you required at any time to seek his approval or authority to make any decisions during your shift? A No. If I felt something was needed. I made the call. Q. 124 Did you request any specific assistance from Peter Rennex in relation to any of the decisions that you were making at the site during that time? A There were discussions. There were discussions throughout the night. But I think we were both on the same page so we knew what we needed to do basically.
Ms Foster was also questioned, during the interview, about her understanding of and cessation of operation of the pumping station and the consequent spill from its wet well. This questioning commenced, specifically, with question and answer 257 and concluded at question and answer 275. It is not necessary to repeat any of this portion of her record of interview. It is clear, from these questions and answers, that she had no active role in determining that the pumping station should be switched off; it was merely her role (to the extent that she was involved with the pumping station) to ensure that there was efficient and appropriate rotation, given the access constraints, of the pump‑out tankers removing the sewage from the wet well of the pumping station.
It is, however, appropriate to record question and answer 308 and 311 to 313. These were in the following terms: Q. 308 Okay. In relation to your role at the pumping station during the flow isolation and pump removal process were you provided with any information that related to any concerns about the risk of overflow from the pumping station during the operation. A. I was aware there was a risk. Detailed. I wasn't involved. I was purely making sure that the continuation of the repairs and containment. and Q. 311 During your involvement in the presence of the pumping station did you make any or were you required to undertake any inspections of the condition of the pumping station - - - A No. Q. 312 - - - or adjoining assets? A. No. Q. 313 As provided with the introduction, the EPA understands that there is a second overflow that's occurred in response to - during the, the operation of removing the pipe that occurred from the pumping station, are you aware or have knowledge of that overflow? A. No.
It is to be observed that what followed from the above questions and answers was also potentially relating to a pumping station to which the tankers were transporting sewage and discharging it at that pumping station. The officers of the Prosecutor undertaking the questioning of Ms Foster at this point simply refer to "the pumping station" without distinguishing between the pumping station at the site which had overflowed into Prospect Creek and the pumping station to which the tanker-carried sewage was being transported. However, it is clear that, by question and answer 341, those interviewing Ms Foster returned to questioning about the pumping station at the site - having, at some earlier point not able to be discerned from the transcript, stopped questioning about that pumping station and having asked questions about a pumping station at Fairfield. Nothing relevant arises from this transcript portion, however.
Finally, it is appropriate to note that, at question and answer 364 to 368, the transcript makes it clear that Ms Foster had attended the pumping station at the site and a pumping station at Fairfield but that she was not aware of any further overflow that had occurred during the time of the response to the incident (question and answer 368).
Ms Foster was required for cross‑examination, a cross‑examination which took place on 31 August 2021. The cross‑examination was comparatively brief. The only relevant portion (Transcript 31 August 2021, page 66, line 44 to page 67, line 8) confirmed that, on the night of the incident, it was her role to manage Sydney Water's response at the site.
The final member of Sydney Water's staff cited in the above extract from Sydney Water's written closing submission is Mr Gary Hurley, Manager Networks. Mr Hurley was interviewed by two officers of the Prosecutor (Ms Jones and Mr Rutherford) on 28 November 2019. A copy of the transcript of his record of interview is in evidence at Document A23.091. Although Mr Hurley was on the list of those proposed to give oral evidence, Mr Hurley was not required by Mr Hemmings for cross‑examination.
I have carefully read the entirety of the transcript of Mr Hurley's interview by the two officers of the Prosecutor.
Mr Hurley was questioned concerning his role at the site (question and answer 43): Q. 43 Upon receiving that information, did you instruct any further or assist any further response to the incident for Sydney Water? A. It would have only been to initiate the declaration of an incident and the establishment of a team, but that's again a - a very routine activity. In terms of taking direct line control of the response, no.
Mr Hurley was questioned concerning his knowledge of the site (questions and answers 59 to 62): MR RUTHERFORD: Q. 59 I understand, Gary, that you previously said that you were aware of the site - - - A Yeah. Q. 60 - - - (indistinct). MS JONES: Q. 61 Yeah. A. Yep. Q. 62 Yes. Yep. A. So yeah I under - I know the location of the site, I know it' s - the location, I know - I've tracked around where the flow had been. It was quite evident where the flow had been, which you've got labelled here. I understand that it' s a pumping station. It' s a - it - which drains the local catchment area. And I know that that's a - quite a degraded waterway. And I'm not saying that as a pejorative. It's just that it's a quite tidally locked location and it's quite an urbanised environment. So I know - yeah, I know - true, I've walked around this site on a number of occasions.
However, Mr Hurley expressly stated that he had had no role in decision‑making concerning operational matters at the site during the incident (questions and answers 98 and 99): Q. 98 Did you provide instructions or directions on the day that you were there, to people on the site, in relation to - - - A Not - no. Q. 99 - - - the incident? A. No.
Mr Hurley is quoted in Sydney Water's written closing submissions at paragraph 206(c). The quotation in the written submissions is in the following terms: 'the whole objective of the entire approach was to minimise the environmental impacts' and that the rising main replacement needed to occur 'within as short a window as possible'
The entirety of what is reproduced in that paragraph as a quotation and footnoted as being extracted from his record of interview at page 17 does not actually reflect what he said, commencing with the answer to question 109 and concluding with the answer to question 112. Elements from the answers to questions 110 and 112 have been conflated and not identified in their appropriate contexts. The relevant passage from his record of interview (on page 17 of that document) is set out below: Q. 109 Mm hmm. Were any further measures put in place? A. In terms of? Q. 110 To mitigate harm. A. Again, the whole - whole objective of the entire approach was to minimise the environmental impacts. The root cause of that was a - a flow of wastewater into the environment. So the whole plan was predicated on minimising the volume - total volume of wastewater that flowed to the environment. So there were a number of actions put in place. Q. 111 Can you - have you already described those or is there anything additional? A. Yeah, at what phase? Q. 112 At the pumping station in - during the replacement of the pipe. A. During the replacement of the pipe, it would have been - there was a need to go and isolate the inflow - incoming flows into the station. There was a need to arrange tankering (as said) to supplement the function of the pumping station, and then to actually get in and get the pipe - the defective pipe out and replaced with - within as short a window as possible. Whilst maintaining the safety of the crews.
Reading these passages in their entirety demonstrates a somewhat different contextual analysis being expressed by Mr Hurley at that time.
At questions and answers 120 and 121, Mr Hurley reconfirmed clearly that he had no direct decision‑making role concerning activities on the site.
It is to be observed that, in his answer to question 128, Mr Hurley said that the safety of the staff would have been paramount. However, as this was an observation made after the event and in circumstances where Mr Hurley had no direct line responsibility for managing the site during the incident, I disregard the observation.
For completeness, it is to be noted that paragraph 209 earlier quoted (extract from Sydney Water's written closing submissions) footnotes Sydney Water's response to a notice given by the Prosecutor pursuant to s 193 of the POEO Act (Document A23.004). It is appropriate to set out the relevant elements of that response document (at pages 8 and 9). They were in the following terms: 15. Sydney Water's response to question 12 of the initial notice states that "by doing the work during the low flow periods of late night, Sydney Water considered that this would minimise the overall volume of wastewater flow released and therefore would minimise the impact on the wider environment'. Was it Sydney Water's assessment that the pumping station would release wastewater flow (overflow) during the replacement of the failed section of rising main? Yes, Sydney Water's assessment was that there would be a partial overflow if the inflow and draining of the rising main was occurring and exceeded tankering capacity during the shut down period. a. If the answer is 'yes' to question 15, explain how this conclusion was reached. It was determined that the pumping station may overflow during the replacement of the failed section due to: • The pumping station had a theoretical detention time less than 1 hour, calculated based on filling the wet well under the peak dry weather flow rate (PWDF) from Above Top Water Level (ATWL) to overflow. • However for tankers to operate, the wet well was required to operate at a higher level to provide sufficient suction pressure to allow removal of wastewater into the tankers. This meant the detention time before overflow would occur was reduced. • For the rising main to be repaired , it needed to be drained of the remaining wastewater stored in side of it, and this was drained back to the wet well/pumping station. This further increased the inflow for the duration the draining occurred. b. Provide the name and contact details of the person/s who made this assessment. Peter Rennex - Sydney Water (Area Manager West) - Site Manager - Ph 8763 8609 John McKeon - Sydney Water (Operator West) - Operating Systems Expert - Ph 8763 8612 John Daoud - Sydney Water (Delivery Manager) - Site Project Manager - Ph 9644 0156 c. Provide all documents related to the planning for isolation of the pumping station including contingency measures for managing the release of wastewater flow, but not limited to notes, worksheets, memos, risk assessments. Due to the emergency nature of the works, the only records that exist from the isolation are the Flow Management Plan (FIFM) which can be found in the Appendix as Document 19. This and the site risk assessment was carried out verbally between all the relevant stakeholders including the Network Area Team, Network Services, Construction Contractor (Interflow) and Field Supervisors. They evaluated the options available to protect the environment, ensure safety and repair the broken rising main. This was done referring to the pumping station contingency plans. Due to safety concerns, flow volumes and direction of flow, it was agreed to cut into the broken rising main once the downstream carrier was traversed during a low flow period. A plug was inserted in the rising main of the pump station once it was determined to be safe. This would prevent any backflow to the station and allow the repair work to be undertaken on the rising main. During this period, several measures were put in place to minimise material harm: • Tankers and pumps to transfer wastewater to tankers were being used to remove wastewater from the wet well and transport it into discharge points in other sewage catchments • Interflow assisted Ventia by installing a manifold on the rising main connection points to allow for easier tankering operations. • Booms were installed around the pumping station overflow point to contain any discharge of solids in the creek should an overflow occur. Due to the reactive nature and urgency of this work, this information was drawn on site and action taken immediately.
As can be seen from the above set out evidentiary extracts relating to decision making on the site during the incident (responding to all the references in Sydney Water's detailed written closing submissions concerning the doctrine of necessity as a foundational defence to the pumping station charge), there is no evidence that any of those Sydney Water employees (having any authority or control of any activities on the site during the course of Sydney Water's response to the incident) have expressed any opinion supporting the proposition that a reason, let alone the dominant or sole reason, for shutting the pumping station down, in circumstances where an overflow to Prospect Creek would be the necessary consequence, was to avoid immediate and irreparable harm to human health or life.
Equally, there is nothing that necessarily infers that such a belief was held by any of those nominated by Sydney Water's submissions as potentially having a decision‑making role on the site that might have encompassed a decision to shut down the pumping station.
Although it can be concluded that there may have been some health risk arising from possible recreational use of Prospect Creek as a consequence of the discharge of large volumes of raw sewage into that water body (whether that volume was as proposed by Sydney Water or as proposed by the Prosecutor being irrelevant, in my assessment), the first step in "the defence of necessity" is not an objective one, as noted by Gleeson CJ at the end of the second paragraph earlier quoted from Rogers - there must be an identified belief held by an individual (here needing to be a belief attributable to Sydney Water pursuant to s 169C of the POEO Act) where that belief was held in a fashion satisfying the first of the propositions derived from Loughnan.
None of the evidence from those actually or potentially having control or authority at the site during the course of the response to the incident discloses any such belief being held as a basis for shutting down the pumping station.
For this reason, there is no available foundation upon which to conclude that the first of the necessary prerequisites derived from the decision in Loughnan is satisfied. "The defence of necessity" is, therefore, not available to Sydney Water.
It follows that Sydney Water is to be found guilty of the pumping station charge and convicted of the second "pollute waters" charges laid pursuant to s 120(1) of the POEO Act.

[124]

Introduction

During the course of the hearing, the Prosecutor requested that, if I was to conclude that Sydney Water was not to be convicted of any (or all) of the charges, that I publish my reasons for that conclusion prior to entering any formal orders for acquittal. If I was to so conclude, the Prosecutor wished to have time to consider any potential courses which it might conclude were available to it in light of my reasons for reaching the "not guilty" conclusion with respect to the relevant charge(s).
I have concluded that the appropriate finding is "not guilty" with respect to two of the three charges made against Sydney Water. One of those findings (concerning the valve charge) arises as a result of my conclusion that the Prosecutor has not satisfied the onus of proof on the Prosecutor by proving, beyond reasonable doubt, all factual elements of that offence.
The appropriate course, therefore, with respect to this charge, is to find Sydney Water "not guilty" and to enter an acquittal on it. I have reached this conclusion based on my understanding of the limited range of matters capable of being referred to the Court of Criminal Appeal on a stated case pursuant to s 5AE(1) of the Criminal Appeal Act 1912 (see Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220, at [31] to [74], per Bathurst CJ and Bell P).
With respect to the pumping station charge, I propose to proceed to convict Sydney Water today and list this matter on Tuesday 6 September 2022 for setting dates for, and a timetable leading up to, a sentencing hearing.
However, I am satisfied that the appropriate course to take concerning the rising main charge (Matter No 11340 of 2020) is for me to publish my reasons for reaching my conclusions concerning this charge and to adjourn those proceedings for a sufficient period to enable the Prosecutor to consider whether it wishes to make any application with respect to my reasons for concluding that Sydney Water was not guilty of that charge and should be acquitted of it.
As there is no prejudice to Sydney Water in me allowing a reasonable time for that consideration by the Prosecutor, I will adjourn further consideration of that matter on the basis that it will be mentioned before me at 8.30 am on Tuesday 6 September 2022.
Should the Prosecutor advise my Associate prior to the close of business on Friday 2 September 2022 that the Prosecutor did not wish to propose that I state a case to the Court of Criminal Appeal in that matter, I will make orders finding Sydney Water "not guilty" of the rising main charge and enter an acquittal in that matter. However, if the Prosecutor does propose that I state a case to the Court of Criminal Appeal, the Prosecutor is to file and serve a copy of any proposed questions by the close of business on Friday 2 September 2022.

Parties

Applicant/Plaintiff:

Environment Protection Authority

Respondent/Defendant:

Sydney Water

Cases Cited (26)

ection Authority v Sydney Water Corporation [1998] NSWLEC 144 Environment Protection Authority v Sydney Water Corporation [2020] NSWLEC 153 Environment Protection Authority v Unomedical Pty Limited (No 3) (2010) 79 NSWLR 236; [2010] NSWLEC 198 Environment Protection Authority v Wollondilly Abattoirs Pty Limited & Davis [2019] NSWCCA 312 Lopes v Cook [2020] NSWSC 1776 Minister for the Environment v Sharma [2022] FCAFC 35 Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 Plaintiff S297-2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179 Proudman v Dayman (1941) 67 CLR 536 Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560 Taiapa v The Queen (2009) 240 CLR 95; (2009) 214 A Crim R 486; (2010) 261 ALR 488; [2009] HCA 53 Veira v Cook [2021] NSWCA 302 Williams v The Queen (1978) 140 CLR 591 Environment Protection Authority v Australian Iron and Steel (1992) 28 NSWLR 502 Category: Principal judgment Parties: Environment Protection Authority (Prosecutor) Sydney Water (Defendant) Representation: Counsel: Mr D Buchanan SC/Mr R Ranken and Ms S Constable, barristers (Prosecutor) Mr I Hemmings SC/Ms S Hall, barrister (Defendant)

TABLE OF CONTENTS Introduction The charges Introduction The valve charge - Matter No 11342 of 2020 The rising main charge - Matter No 11340 of 2020 The pumping station charge - Matter No 11341 of 2020 The Statement of Agreed Facts Sydney Water's "not guilty" pleas Relevant statutory provisions Introduction The valve charge The rising main charge and the pumping station charge Sydney Water's statutory defence to the rising main charge Sydney Water's environment protection licence Introduction The valve charge The rising main and pumping station charges The rising main charge Representation The hearing Introduction The general progress of the hearing The parties' closing submissions The evidence Introduction Notes on terminology The oral evidence The Prosecutor's witnesses Sydney Water's evidence The Prosecutor's written evidence The Prosecutor's application to reopen Introduction The reopening topics Topic 1 - reliance on the s 122 POEO Act defence Introduction The Prosecutor's submissions Sydney Water's response Consideration Topic 2 - Sydney Water's "wrong offence" defence to the valve charge Introduction The Prosecutor's submissions Sydney Water's response Consideration Conclusion on reopening application matters The Bartter Enterprises decisions Introduction Duggan J's decision in Bartter (No 3) The decision of the Court of Criminal Appeal The Prosecutor's submissions Sydney Water's submissions Consideration of Bartter CCA The valve charge Introduction The evidence Introduction The pre‑trial circumstances of Mr Aquilina's evidence Mr Aquilina's evidence Mr Saad's evidence Mr Kelly's evidence The Prosecutor's submissions The submissions for Sydney Water Mr Aquilina's evidence Dr Martens' evidence The relevance of the 600 millimetre valve at SP0187 Conclusions based on the evidence Admissions Conclusion on the valve charge Observations on the burden of proof The rising main charge Introduction The damaged section of the rising main Sydney Water's defence The evidence Mr McDonald's evidence Mr Holland's evidence Mr Holland's affidavit evidence Mr Holland's oral evidence Mr Ferguson's evidence Introduction Mr Ferguson is interviewed by officers of the Prosecutor Mr Ferguson's 2007 condition report Mr Ferguson's initial responses to the January 2019 rising main failure Mr Ferguson's first pipe failure report Mr Ferguson's final pipe failure report Mr Ferguson's oral evidence What actually took place on the night of the incident The Prosecutor's submissions The submissions for Sydney Water Consideration of the statutory defence Introduction The statutory provisions The relevant EPL conditions The legal issue The facts concerning the failure of the rising main The Prosecutor's rising main duplication proposition Conclusion on the availability of the statutory defence Sydney Water's defence of "honest and reasonable mistake of fact" Introduction The Prosecutor's submissions Sydney Water's submissions Consideration Introduction Addressing the required questions Introduction Was there a positive exculpatory factual belief honestly held? Was the act (or here, omission) based on the belief? Was the mistaken belief one of law? Was the mistaken belief a mixed one of fact and law? Was a lack of knowledge or mere ignorance a basis for the defence? Was the mistaken belief based on nothing more than a general understanding that everything is in order? Was the mistaken belief sufficiently specific to relate to elements of the offence in question? Was the mistaken belief said to be supported by an absence of fault or an absence of negligence? Has Sydney Water established the defence on the balance of probabilities? Has the Prosecutor negatived the defence beyond reasonable doubt? Conclusion on the defence of honest and reasonably held mistake of fact The pumping station charge Introduction The relevant factual framework The basis of Sydney Water's defence The Prosecutor's submissions Sydney Water's foundational submissions The decision of Veira v Cook [2021] NSWCA 302 Introduction The hearing of 16 December 2021 The Prosecutor's submissions on Veira v Cook The submissions for Sydney Water on Veira v Cook Consideration of the applicability of Veira v Cook Consideration and conclusion on the pumping station charge Introduction The "necessity" defence and human health The extent of Sydney Water's evidence Prospect Creek, recreational use and impacts on the creek Submissions on knowledge and/or belief Consideration of the first of the Loughnan tests Conclusions introduction The valve charge The pumping station charge The rising main charge The Prosecutor's adjournment application Introduction Directions Orders

(2010) 79 NSWLR 236

(2020) 103 NSWLR 36

(2014) 255 CLR 179

(1941) 67 CLR 536

(2009) 240 CLR 95

(2010) 261 ALR 488

(1978) 140 CLR 591

(1992) 28 NSWLR 502