NSWNSWLEC

Environment Protection Authority v Sydney Water Corporation

[2019] NSWLEC 100

Land and Environment Court (NSW)|2019-06-21|Before: Pepper J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2019-06-21

Before

Pepper J

Catchwords

(2006) 145 LGERA 234 Bourke v R [2010] NSWCCA 22
(2010) 199 A Crim R 38 Burns v The Queen [2012] HCA 35
(2012) 246 CLR 334 Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280
(2001) 115 LGERA 304 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Cassidy v The Queen [2012] NSWCCA 68

Source

Original judgment source is linked above.

Catchwords

(2006) 145 LGERA 234 Bourke v R [2010] NSWCCA 22(2010) 199 A Crim R 38 Burns v The Queen [2012] HCA 35(2012) 246 CLR 334 Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280(2001) 115 LGERA 304 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Cassidy v The Queen [2012] NSWCCA 68(2012) A Crim R 420 Chief Executive, Office of Environment & Heritage v Orica Pty Ltd [2015] NSWLEC 109 Chiro v The Queen [2017] HCA 37(2017) 260 CLR 425 Cittadini v R [2009] NSWCCA 302 Croaker v R [2008] NSWCCA 232(2017) 228 LGERA 55Einfeld v R [2010] NSWCCA 87(2010) 200 A Crim R 1 Elias v The QueenIssa v the Queen [2013] HCA 31(2014) 206 LGERA 239 Environment Protection Authority v Queanbeyan City Council (No 3) [2012] NSWLEC 220(2018) 232 LGERA 304 Gordon Plath of the Department of Environment and Climate Change v Fish [2010] NSWLEC 144(2010) 179 LGERA 386 Gore v The QueenHunter v The Queen [2010] NSWCCA 330(2010) 208 A Crim R 353 Harris v Harrison [2014] NSWCCA 84

Judgment (65 paragraphs)

[1]

Background to the Overflow Incidents

The premises include the sewage carriers known as the Southern and Western Suburbs Ocean Outfall Sewer ("SWSOOS").
The SWSOOS consists of SWSOOS1, a single concrete sewer carrier, and two additional concrete twin sewer carriers (which merge at Perry Street to form a single barrel) that carry sewage to the MWTP for treatment ("SWSOOS2").
SWSOOS1 is located between General Holmes Drive, Mascot and McFall Street, Botany. It is a large above-ground trunk sewer, 3.4 m wide by 1.8 m deep which is constructed on a nearly flat gradient. As a consequence of the nearly flat gradient and the sewer design and configuration, the flow becomes slower allowing the silt to more readily settle. The localised accumulation of silt can impede the flow of sewage to MWTP and in wet weather may cause overflows of sewage out of SWSOOS1.
SWSOOS2, at the location of the desilting works which gave rise to the commission of the offences ("desilting works", discussed in more detail below), consists of two closed sewer carriers (south and north) which are 2.8 m wide x 2.0 m deep.
SWSOOS1 and SWSOOS2 are connected by cross connection channels at several points to facilitate flow routing or diversions between the sewers.
SWSOOS1 also receives flow from the Southern Diversion Sewer which intersects with SWSOOS1 near cross connection 1 adjacent to Mill Pond. A wet weather siphonic overflow structure ("overflow structure") is located off the Southern Diversion Sewer a few metres from the stop board location known as "SBD113" (discussed further below). The overflow structure is designed to operate in wet weather by acting as a relief outlet when the sewer is reaching capacity.
A gauge is installed near the overflow structure and points down into the flow point to measure inflow to the overflow structure ("gauge"). As at May 2017 the gauge was connected to Sydney Water's remote monitoring network ("IICATS"). Once a day data was transferred to Hydstra (a database used by Sydney Water's Hydrometrics team for viewing data) which received data from about 200 other gauge locations daily. The gauge data was reviewed approximately twice a week. The gauge data was not subject to live or more frequent monitoring by Sydney Water's System Operating Centre because the gauge was installed for the purpose of recording when wet weather overflows occurred to satisfy annual reporting requirements on wet weather overflow performance under the EPL.

[2]

The Overflow Structure

The overflow structure comes off the Southern Diversion Sewer which is connected to SWSOOS1. It is located a few metres upstream of SBD113.
The overflow structure activates when flow levels in the sewer reach such a height that flow will overtop the crest of the pipe leading into the overflow structure (known as the "weir crest"). Based on Work-as-Executed ("WAE") drawings the trigger point at which the overflow structure activates is when flow level depths reach 1.22 m in the Southern Diversion Sewer adjacent to the overflow structure. Based on the WAE drawings this equates to a flow level depth of 1.73 m in the SWSOOS1 near SBD113. As calculated, when flow depth in SWSOOS1 reaches a height of 1.73 m at SBD113 the overflow structure activates.
As flow levels rise the overflow becomes siphonic in nature whereby air is pushed out of the overflow structure. Once the siphonic overflow is primed, the rate at which flow travels through the overflow structure increases (about 80 times greater based on a comparison between flows from a gravity weir and a siphonic overflow). The overflow stops when flow levels drop again to a height that allows air to be drawn in to break the siphonic action, which occurs at the height of the weir crest.
Wastewater that enters the overflow structure flows through an underground pipe which runs from the overflow structure and discharges out of an outlet into the tidal section of Mill Stream, downstream of Mill Pond weir. The outlet is located inside a culvert which runs under SWSOOS1. The culvert connects Mill Pond to Mill Stream. The outlet is not visible from the site of the desilting works. All wastewater that is discharged from the outlet enters Mill Stream.

[3]

Traverse and Prior Desilting Works

Periodically Sydney Water conducts a "traverse" of its sewers, which involves manned entry by specialists into the sewer to assess the condition of the sewer.
A traverse of SWSOOS1 carried out in November 2011 identified silt accumulations of up to 700 mm at certain locations, prompting the initiation of a project by Sydney Water to clean out and de-silt SWSOOS1. The clean out was to occur in stages.
Prior to 2017, SWSOOS1 was last desilted by Sydney Water in 2007. Prior to 2007, SWSOOS1 was last desilted in 2002.
SWSOOS2 was last desilted in 2003/2004 for the south carrier and 2004/2005 for the north carrier.

[4]

The 2017 Desilting Works in SWSOOS1

From approximately October 2016 onwards, Sydney Water undertook a desilting project to restore capacity in SWSOOS1 from the Sydney Airport Grit Pits to Bunnerong Road.
The fourth stage of the desilting project was to be carried out in a 250 m section of SWSOOS1 located to the east of Sydney Airport at the southern side of General Holmes Drive up to the access opening adjacent to the roundabout at Hale and Luland Street adjacent to Mill Stream in Botany ("desilting works").
The desilting works commenced on 22 May 2017. At that time, the estimated time to complete the desilting works was about six to eight weeks.
The section of SWSOOS1 that was the subject of the desilting works is lined internally to prevent leakage of sewage from joints and cracks. The liner was installed when the sewer was last desilted in 2007. Due to the risk of damaging the liner, Sydney Water determined that the most appropriate method for carrying out the desilting works was manual cleaning by work crews who entered the sewer equipped with shovels and vacuum hoses to manually remove the silt and debris.
Veolia Water Technologies Pty Ltd ("Veolia") was engaged by Sydney Water to perform the desilting works under an existing Waste Management Silt and Debris Removal contract dated 18 June 2010.

[5]

Flow Isolation Flow Management Plan

In order to carry out the desilting works Sydney Water implemented flow isolations for manned entry (discussed below). These isolations consisted of physical obstructions in the sewer carrier to isolate sections of the carrier from flow. They included stop boards and a coffer dam.
Prior to installing flow isolations, Sydney Water requires the preparation of an approved Flow Isolation Flow Management Plan ("FIFM Plan") which identifies risks and sets minimum controls for planning and implementing flow isolation safely.
For the desilting works a FIFM Plan was prepared. The scope of the works as described in the FIFM Plan were: 1. insert stop boards in accordance with the FIFM Plan; 2. build coffer dam downstream; 3. pump out excess water; and 4. enter SWSOOS1 and clean silt.
The controls in the FIFM Plan, including the proposed locations of the stop boards, were developed at the Hazard Identification and Risk Assessment ("HIDRA") meeting on 26 October 2016. The HIDRA meeting attendees comprised: 1. Ms Michelle Howard (Contract Manager - Sydney Water); 2. Mr James Campbell (Contract Officer - Sydney Water); 3. Mr Terry Robinson (Project Manager - Veolia); 4. Mr Cameron Glegg (Project Supervisor - Veolia); and 5. Mr David Birian (Engineer - Veolia).
The FIFM Plan was subsequently prepared by Mr Campbell (identified as the FIFM Plan Coordinator). The FIFM Plan was reviewed by Mr Enrico Coiro (a Sydney Water engineer from Networks) and ultimately signed off and approved by Mr David Cantlon (the Sydney Water Acting Area Manager, Networks South) on 9 May 2017. Mr Luke Williams (Veolia Job Supervisor) was the person responsible for the implementation of the FIFM Plan.
The FIFM Plan identified the following risks and controls in respect of overflows: 1. "Overflow of SWSOOS1" was a risk due to "High Flows". The control identified to manage this risk was to: Monitor weather forecast prior to work. Also periodically check the forecast during work to ensure no rainfall is predicted. Work to be stopped in the event of any rain >20mm in a 24 hour period. Monitor level against upstream stopboards and top of cofferdam. If flow level is approaching top of boards (100mm) stop work and evacuate. Divert SWSOOS1 flow at X-Con 2 allowing storage in SWOOS2 [sic] Sth to be used as well. Should also reduce the potential turbulence caused by both SWSOOS1 and MSD flows being diverted at X-Con 1. This will reduce the activation of the Mill Pond overflow. 1. "Overflow of SWSOOS1" was a risk due to "Reduction of capacity due to SWSOOS1 being offline". The control identified to manage this risk was to: Consider informing EPA of the likelihood of increased overflows, through appropriate Networks contacts. If overflow is likely consider removing top couple of boards to allow flow to travel down SWSOOS1.

[6]

Flow Isolations Installed

To isolate the working area of the sewer and to enable manned entry by Veolia personnel into SWSOOS1 to carry out the desilting works, flow isolations were installed into SWSOOS1 commencing on 22 May 2017.
Flow isolations were achieved by placing two sets of stop boards (about 10 stop boards make up one isolation, with each individual stop board being a wooden board approximately 120 mm in height and weighing between 45 to 120 kg) into SWSOOS1 at stop board locations SBD113 and SBD114 immediately upstream of the site of the desilting works, in order to block flow travelling downstream and divert flow through nearby cross connection 1 into the parallel SWSOOS2 north carrier. Cross connection 1 only connects SWSOOS1 with SWSOOS2 north and does not connect through to SWSOOS2 south.
The stop boards were installed to the height of about 1.8 m, approximately 10 cm below the height of the top of the carrier.
A further single set of stop boards was inserted in SWSOOS1 about 160 m upstream of the site of the desilting works and the overflow structure, at stop board location SBD102. These stop boards were installed to about three quarters of the height of the carrier and operated to divert normal flow away from SWSOOS1 into SWSOOS2 through cross connection 2, which also connected SWSOOS2 North to SWSOOS2 South.
A coffer dam (a temporary dam of stockpiled sandbags) was constructed in SWSOOS1 downstream of the work area to prevent any backflow entering the work area of SWSOOS1.
Mr Campbell was on site on 22 and 23 May 2017, to oversee the installation of the stop boards and the coffer dam.

[7]

Commencement of the Desilting Works

Manned entry into the sewer commenced on 24 May 2017 to begin desilting. Veolia employees were onsite to carry out the desilting works at approximately 6.00-7.00 am each morning until approximately 2.00-3.00 pm each afternoon, between Monday and Friday, during 22 May to 6 June 2017. No work was carried out on weekends.
Each morning before commencing works Veolia employees checked SBD114 for signs of overflow over the top of the stop boards. Veolia Flow Monitoring Log Sheets were recorded in respect of checks made of the flow height against SBD114 and the coffer dam during the desilting works for 25, 26, 29, 30 May and 1, 2, 6 June 2017.
There were no Flow Monitoring Log Sheets for the remaining nine days within the relevant period, five of which were work days. Sydney Water has not been able to locate records for these days.
At the end of work each day the stop boards at SBD113 and SBD114 were not removed. The decision to leave stop boards in place on a continuing basis was made by Sydney Water because: 1. it considered that it would not be appropriate to remove and re-install the stop boards and coffer dam from the carriers and to pump out the isolated work area each morning due to time constraints and the need to undertake the work in a safe manner; and 2. the same method had been successfully employed for desilting works which had occurred further upstream in SWSOOS1 during late 2016 and early 2017.

[8]

The Dry Weather Overflows From 22 May to 6 June 2017 Giving Rise to the First Water Pollution Offence

From the evening of 22 May to 6 June 2017, intermittent overflows of sewage occurred from the overflow structure each night, discharging directly into the northern weir channel of Mill Stream downstream of Mill Pond weir.
During the period 21 May to 6 June 2017, there was no rainfall above 10 mm at any rain gauge owned and operated by Sydney Water within the Southern Suburbs Sewage Treatment System catchment.
The material discharged from the overflow structure was sewage with trace quantities of ferrous chloride (FeCI2), a chemical which is used by Sydney Water to control dissolved sulphides in the sewage.
Neither Sydney Water nor Veolia staff on site during the desilting works observed any signs of the overflows.
Gauge data revealed that the overflow structure was activated and that sewage was discharged into Mill Stream during the time periods in the table below. The gauge data from 10.00 am on 19 May 2017 to 1:38 pm on 30 May 2017 was not recorded because the battery in the gauge was flat.
Accordingly, the italicised entries in the table below are based on extrapolated gauge data. The extrapolated gauge data was calculated by taking flow levels from nearby gauges and adjusting those levels to derive approximate flow levels at which the overflow structure was activated. Date and time overflow commences (2017) Date and time overflow ceases (2017) Monday 22 May at 21.36 Tuesday 23 May at 2.00 Tuesday 23 May at 21.27 Wednesday 24 May at 2.10 Wednesday 24 May at 13.52 Wednesday 24 May at 18.50 Wednesday 24 May at 20.50 Thursday 25 May at 2:00 Thursday 25 May at 21:52 Friday 26 May at 0:01 Friday 26 May at 21.52 Saturday 27 May at 1:21 Saturday 27 May at 14.31 Sunday 28 May at 1:55 Sunday 28 May at 17:30 Sunday 28 May at 21:00 Monday 29 May at 21:21 Tuesday 30 May at 2:00 Tuesday 30 May at 21:40 Wednesday 31 May at 1:28 Wednesday 31 May at 21:45 Thursday 1 June at 1:35 Thursday 1 June at 21:58 Friday 2 June at 1:05 Friday 2 June at 21:21 Saturday 3 June at 0:54 Saturday 3 June at 16:05 Sunday 4 June at 0:31 Sunday 4 June at 18:38 Monday 5 June at 1:09 Monday 5 June at 21:11 Tuesday 6 June 1:13

[9]

Volume of the Overflows

Subsequent to the identification of the sewage overflows at Mill Stream, Sydney Water utilised two methods to calculate the estimated volume of sewage discharged into Mill Stream during the period 22 May to 6 June 2017: 1. first, by using a mass balance approach which compared the differences in inflow volumes at MWTP shortly prior to the incident to that during the incident. Sydney Water estimated that approximately 168 million litres ("ML") of sewage was discharged into Mill Stream during the dry weather overflows of 22 May to 6 June 2017. To account for uncertainties and variabilities in the calculation method Sydney Water applied a margin of uncertainty of +/- 14%. When that margin was applied the overflow volume was in the range of 145 ML - 192 ML; and 2. second, by using hydraulic modelling Sydney Water calculated that between 151 ML and 334 ML of sewage was discharged during the incident. The wide range in this estimate accounts for uncertainty as to whether the overflow structure was in siphonic flow or not. If the overflow structure was in full siphonic flow during the overflows then the volume of sewage discharged would likely be at the upper end of the estimated range.
The dry weather discharge of sewage from the overflow structure between 22 May and 6 June 2017, prior to the onset of rainfall late in the evening of 6 June 2017, was not authorised by the EPL.
All of the sewage discharged from the overflow structure entered the tidal section of Mill Stream and flowed downstream into the waters of Botany Bay.

[10]

The Cause of the Dry Weather Overflows

The overflows were caused by the continuing presence of stop boards SBD113 and SBD114 in SWSOOS1 between 22 May and 6 June 2017, together with a number of additional contributing factors. Those factors were: 1. the daily peak dry weather volume of sewage flowing in the SWSOOS during the evenings on both weekdays and weekends; 2. the height of stop boards SBD113 and SBD114 compared to the height of the weir crest on the overflow structure; and 3. the capacity of cross-connection 1 and SWSOOS2 to transfer and receive peak dry weather flows without triggering overflows from the overflow structure.
It was not in dispute that there were no other known reportable incidents in the SWSOOS catchment from the beginning of May to 6 June 2017 that could have contributed to the discharge and pollution which occurred in Mill Stream and the immediate area of Botany Bay into which Mill Stream discharges.

[11]

Sydney Water Becomes Aware of the Overflows

As stated above, at the time of the incident the gauge on the overflow structure was not utilised by Sydney Water for monitoring any overflows during the desilting works. Veolia had been monitoring the height of the flow against the stop boards SBD113 and SBD114 based on an incorrect assumption that the flow would overtop the stop board before it reached the height of the weir crest in the overflow structure.
As also stated above, on 19 May 2017, that is three days before the desilting works commenced, the battery in the gauge on the overflow structure expired.
The flat battery caused the gauge to stop recording data. The fault was not detected as part of Sydney Water routine inspections of gauge data on 22, 24 and 29 May 2017.
On 30 May 2017, the flat battery was identified and replaced on the same day resulting in the recording of flow data from the time of its replacement.
On 5 June 2017, upon a routine inspection of data from the gauge, Mr Paul McVicar of Hydrometrics Services at Sydney Water, noticed that the gauge was indicating that the weir crest level had been overtopped and the overflow structure was active. Mr McVicar emailed Ms Howard (Project Manager at Sydney Water) at 8.37 am on 5 June 2017 with the subject line "SWSOOS1 desilting work - Dry Weather Overflows" to inform her that the data from the gauge was "indicating instances of sewer overflow at night". He attached a screen shot of plot data.
Because there was a gap in data from the gauge (due to the flat battery) until 30 May 2017, a team was sent to check the accuracy and functionality of the gauge the following morning on 6 June 2017.
At about 7.45 am on 6 June 2017, Mr McVicar's team, together with Ms Howard, attended the site of the desilting works to inspect the gauge and confirmed that it was operating correctly. Odour and evidence of sewage overflows were identified by Ms Howard in Mill Stream weir in the vicinity of the overflow structure.
Ms Howard observed that the water downstream of the weir to which the outlet of the overflow structure discharged was a light brown colour and several wet wipes were floating in the water.
Ms Howard and Mr Coiro held a series of phone conversations between approximately 9.00 am to 11.00 am on 6 June 2017, including with Veolia staff and Mr Cantlon, and a decision was made to remove the top three stop boards from SBD113 and SBD114 at the conclusion of that work day. This decision was based on predictions of wet weather in the following days, the weir crest height in the overflow structure, and the need to reduce the height of the stop boards at SBD113 and SBD114 to a level at which peak dry weather flows could pass over the top without activating the overflow structure.

[12]

Wet Weather Overflows From 6 to 10 June 2017 That Are Not the Subject of a Water Pollution Charge

Late in the evening of 6 June 2017, rain began to fall in the SWSOOS catchment. On the morning of 7 June 2017, under Sydney Water's instructions, Veolia commenced clean-up and began to pump out sewage water back to the SWSOOS1 from the site of the overflow at Mill Stream. However, pumping was suspended that morning due to the onset of heavy wet weather. The overflow structure was again activated due to rain.
Wet weather overflows occurred into Mill Stream between the evenings of 6 and 10 June 2017. Wet weather overflows from the overflow structure are not prohibited by the EPL, however, the hydraulic modelling indicates that the wet weather overflows which occurred between the evenings of 6 June to 10 June 2017 were exacerbated by the continuing presence of the stop boards at SBD113 and SBD114.
During the period above there was heavy rain (over 10 mm recorded at individual rain gauges) in the Southern Suburbs Sewage Treatment System catchment. Once wet weather conditions were present in the system Sydney Water was unable to remove the stop boards or coffer dam because the working conditions were unsafe to do so.
Sydney Water hydraulic modelling estimated that approximately 683 ML of sewage and stormwater was discharged from the overflow structure into Mill Stream between the evenings of 6 to 10 June 2017.
Sydney Water modelling also simulated overflows in the same scenario but with no stop boards in place. The model estimated that with no stop boards 535 ML of wastewater would have been discharged. Therefore, Sydney Water's modelling indicated that due to the presence of SBD113 and SBD114, an additional 148 ML of wastewater was discharged into Mill Stream during the wet weather overflows commencing on the evening of 6 June and continuing into the evening of 10 June 2017.

[13]

The Dry Weather Overflows From 11 June to 16 June 2017 Giving Rise to the Second Water Pollution Offence

Rain in the SWSOOS catchment ceased by 11 June 2017. However, the overflow structure continued to activate and sewage continued to intermittently overflow into Mill Stream and into Botany Bay for a further five days until 16 June 2017. Although there was less than 10 mm of rain recorded in the SWSOOS catchment during the period between 11 and 16 June 2017, high level flow conditions from the wet weather were still present in the system until 16 June 2017, and therefore, the stop boards or coffer dam could not be removed until 16 June 2017.
Again, Sydney Water modelling indicated that had there been no stop boards in place an estimated 16 ML of sewage and stormwater would have been discharged from the overflow structure over 11 and 12 June 2017 due to the previous wet weather which had a lag time to pass through the system.
The EPL does not recognise this lag effect in the definition of "wet weather" and "dry weather". Due to the partial isolations in place caused by the 1.5 m stop boards at SBD113 and SBD114, Sydney Water modelling indicated that an estimated 189 ML of sewage was discharged into Mill Stream during this period.
Therefore, between 11 and 16 June 2017 dry weather overflows occurred discharging an estimated 173 ML of sewage from the overflow structure into Mill Stream. These overflows were not authorised by the EPL.
The causes of the 173 ML dry weather overflows into Mill Stream are the same as the causes for the previous dry weather overflows (discussed above). Had the stop boards been totally removed on 6 June 2017, it is estimated that the overflow volume would have only been 16 ML of wastewater.
The stop boards and coffer dam were totally removed from SWSOOS1 on 16 June 2017, when it was deemed safe by Sydney Water for Veolia workers to enter the sewer.

[14]

The Polluted Waters

The dry weather overflows the subject of the charges caused sewage to discharge from the outlet of the overflow structure into Mill Stream. The sewage flowed down Mill Stream and into the waters of Botany Bay.
The length of Mill Stream encompasses several separate parcels of land owned by a mixture of both State and Commonwealth entities as follows: 1. public road reserve owned by Bayside Council (formerly Lot 12 DP 787029); 2. Lot 13 DP 787029 owned by the Commonwealth; and 3. Lot 401 DP787029 owned by the Commonwealth, encompassing the section of Mill Stream downstream of Foreshore Drive and adjacent to Sydney Airport runway, and which is incorporated into the leased area for Sydney Airport and regulated under the Airports Act 1996 (Cth) and the Airports (Environment Protection) Regulations 1997 (Cth) made under that Act.
The waters polluted as a result of the dry weather overflows the subject of the charges include the waters of Mill Stream, to the extent that they are not owned by Commonwealth, and the downstream waters of Botany Bay.
The section of SWSOOS1 that was being desilted is located on land owned by Sydney Water. The overflow structure manhole and weir crest where the overflowing sewage left the Southern Diversion Sewer is located on land owned by Bayside Council. The overflowing sewage travelled through the overflow structure pipework from Bayside Council land onto Commonwealth land. At least some of that pipework is located on Commonwealth land. The outlet of the pipe that discharged into the Mill Stream stormwater channel at a point adjacent to and under the cover of SWSOOS1 is located on Commonwealth land.

[15]

Sydney Water Carried Out the Licenced activity in a Less Than Competent Manner (the EPL Offence)

The removal of silt and associated works are part of operating the sewage treatment system to which the EPL applies.
The parties agreed that the risk of dry weather sewage overflows into Mill Stream as a result of the desilting works was a foreseeable and material risk and was not appropriately considered and mitigated by Sydney Water.
The parties further agreed that a competent operator would have: 1. investigated whether the flow diversion proposed at this location could be carried out without causing dry weather overflows; 2. monitored the overflow structure during desilting works to confirm that overflows were not occurring once the flow isolations were installed; and 3. had a clear written procedure to determine when the coffer dam and stop boards would need to be removed.

[16]

Sydney Water Should Have Investigated the Proposed Diversion

As part of the FIFM Plan Sydney Water ought to have, but did not: 1. confirm the height of the weir crest in the overflow structure which is the height of flow levels in the sewer at which the overflow structure activates. Such information was readily available to Sydney Water; 2. review or monitor sewer flow data from any gauge in SWSOOS1 or SWSOOS2 to determine the pattern or timing of peak sewer flow height in SWSOOS1. Sydney Water assumed that peak dry weather flows occurred mid-morning which was incorrect because sewer gauge data in SWSOOS1 indicated that peak dry weather flows typically arrived each day in the late evening; and 3. consider, for example by carrying out hydraulic modelling, the condition and capacity of cross-connection 1 and SWSOOS2 north to transfer and carry flows from SWSOOS1 and the Southern Diversion Sewer without the flow depth increasing above the weir crest level. Instead, Sydney Water relied on the diversion of flows from SWSOOS1 to SWSOOS2 working successfully for the earlier desilting work carried out upstream in SWSOOS 1.
Each is discussed in greater detail immediately below.
Sydney Water obtained a Traverse Report of SWSOOS2 in April 2015. The traverse was undertaken in November 2014. The report made a number of conclusions in the Executive Summary, including that: …apart from a major silt bank downstream of Perry St elsewhere silt levels were generally considered moderate. Some lengths had intermittent silt banks which averaged 150-200mm in depth, with up to 600mm found within bends on the alignment of the sewer. For these remaining areas, silt levels currently do not have any adverse effect on the operational capacity of the sewer, however should be monitored in subsequent inspections to determine when action needs to be undertaken to remove silt. … Major work is required within this section of sewer inspected over the next 10 years with the extent of work and required timing as set out below. Sewer Description and Location Length Rehabilitation Timing Estimate Cost • Protective coating of SWSOOS 2 North and South Cells between Exell Street and Botany Goods Railway (including removal of silt). • Protective coating of SWSOOS 2 North and South Cells between Cooks River Syphon and Hayden (including removal or silt). 5 km 0-3 years $ 30m • Projective coating of two flat roof areas in tunnel Perry St and Malabar STP. • Protective coating of SWSOOS 2 from Perry Street to Dacre Street within Malabar STP (including removal of silt) 2 km 8-10 years $ 25m

[17]

Sydney Water Should Have Monitored the Overflow Structure Once the Flow Isolations Were Installed

During the desilting works Sydney Water did not: 1. direct or require the use of any gauges owned and operated by Sydney Water to monitor flows in the sewer or for dry weather overflows occurring at the overflow structure; 2. check that the gauge was functioning prior to commencing works; 3. direct or require Veolia to carry out specific monitoring (whether visual or otherwise) of the overflow structure; or 4. direct or require any monitoring for overflows to be carried out when no workers were on site after hours or on weekends.
Sydney Water directed and required Veolia to monitor the height of the flow at stop boards SBD113 and SBD114 during working hours based on the incorrect assumption that: 1. the height of the stop boards SBD113 and SBD114 was lower than the weir crest of the overflow structure, and therefore, wastewater would overtop the stop boards before it would overtop the weir crest. Whereas, the height of the weir crest was lower than the height of the stop boards at SBD113 and SBD114; 2. peak dry weather flows occurred about mid-morning (peak dry weather flows in SWSOOS1 in fact typically occurred in the late evening); and 3. workers outside of the SWSOOS carrier would notice dry weather overflows in siphonic mode occurring during the day.

[18]

Sydney Water Should Have Had a Procedure to Remove Flow Isolations in the Event of an Emergency

The decision on 6 June 2017 to remove only the top three stop boards was made based on the knowledge that dry weather overflows had already occurred for the past five nights (at a minimum).
Sydney Water did not have a clear written procedure to determine when the coffer dam and all of the stop boards (not merely the top three) would need to be removed.

[19]

Sampling Undertaken

At approximately 5.00 pm on the evening of 6 June 2017, Sydney Water directed its Field Sampling and Testing team ("FST") to attend the site of the overflow to conduct an assessment. The FST arrived at Mill Stream at approximately 5.45 pm and water samples were undertaken from eight locations including the Mill Pond weir, several points downstream in Mill Stream, and at Foreshore Beach in Botany Bay.
Faecal coliform and enterococci sampling data showed elevated levels of both within Mill Stream. Elevated concentrations of both also existed where Mill Stream confluences with Botany Bay. Bacteriological levels were also elevated at Foreshore Beach.
On the evening of 6 June 2017, the FST provided clean-up recommendations to Sydney Water including pumping polluted waters from Mill Stream back into the sewer before the next tide and installing warning signage at the confluence of Mill Stream and Botany Bay until bacteriological results indicated no sewage.
Signage was installed by Sydney Water near the boat ramp at Foreshore Beach in Botany Bay on 6 June 2017, to alert the public to the presence of sewage in the water.
Mr Coiro visited the area at the confluence of Mill Stream and Botany Bay near Foreshore Beach on either 6 or 7 June 2017, and observed residual sewage material including sanitary items along the edge of the shore. Mr Coiro was, however, unable to determine whether the observed residual sewage material emanated from the wet weather overflow events that occurred prior to the desilting works.
Further sampling was undertaken by Sydney Water on 17 June 2017. Between sampling rounds, Sydney Water considered that the rain and wet weather overflows that occurred from 7 June 2017 would have caused any samples collected during that period to be unrepresentative due to the Antecedent Wetness Index ("AWI") being greater than five. The AWI is a measure of catchment wetness based on the rainfall that has occurred over preceding days. The FST does not ordinarily sample in conditions where the AWI is greater than five.
The sampling results taken on 17 June 2017 by the FST at the same eight locations showed elevated bacteriological levels that were indicative of the presence of sewage within Mill Stream and Botany Bay.
The FST continued water quality sampling in certain locations in Mill Stream and Botany Bay twice a week until 20 July 2017. The results of the water quality sampling were provided to the EPA each week.

[20]

The Clean-Up

The desilting works were suspended on 6 June 2017 and have not been recommenced by Sydney Water.
On 18 June 2017, on instruction from Sydney Water, Veolia commenced the pump out of the polluted water in Mill Stream which continued until 6 July 2017. An estimated 190 ML of sewage contaminated water was pumped from Mill Stream back into the sewage network. Pumping could only occur for about 12 hours each day when the tide was high enough to enable pumping on the downstream side of the weir at Mill Pond.
Sydney Water carried out the flushing of Mill Stream by opening a stand pipe which discharged water into a storm water channel flowing into the northern end of Mill Stream.
In addition to the FST sampling, Sydney Water engaged JSA Environmental Pty Ltd to undertake an environmental assessment and to provide advice on the impact of the overflows and the required clean-up action. The environmental assessment was completed on 21 June 2017.
On 22 June 2017, the EPA issued a clean-up notice to Sydney Water pursuant to s 92 of the POEOA requiring it to clean up sewage contaminated water of all affected areas of Mill Stream and to undertake water quality sampling and analysis twice a week at least three days apart until water quality reached background levels.
Clean-up along Mill Stream at low tide was completed by Veolia on 23 and 24 June 2017, using an excavator and manual brooming to remove solids from the creek bed and to move clean sand to cover sewage contaminated sand exposed at low tide.

[21]

Odour

On 18 June 2017, Sydney Water self-reported odour issues to the EPA which were thought to be the result of residual wastewater from the overflows at the overflow structure.
On 22 June 2017, Sydney Water engaged JBS&G Australia Pty Ltd ("JBS&G") to carry out odour monitoring and surveillance in the Botany area commencing on 22 June 2017 and to assess the mitigation of odour during the clean-up process. The odour monitoring and surveillance continued until JBS&G concluded that no further odour emission measurements or odour surveys were required to be carried out.

[22]

The Purposes of Sentencing

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

[23]

Statutory Matters Required to be Taken into Account in Sentencing

In addition to the matters set out in Div 1 of the CSPA, the POEOA sets out the factors which are required to be taken into account when sentencing offences committed under that Act. Section 241(1) and (2) of the POEOA relevantly provides that: 241 Matters to be considered in imposing penalty (1) In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant): (a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence, (b) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence, (d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence, (e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee. (2) The court may take into consideration other matters that it considers relevant.
Subsections 21A(2) and (3) of the CSPA also set out aggravating and mitigating factors that the Court must consider. Relevant to the facts of this case they are: 21A Aggravating, mitigating and other factors in sentencing (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: … (d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences), … (g) the injury, emotional harm, loss or damage caused by the offence was substantial, … (o) the offence was committed for financial gain… The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, (b) the offence was not part of a planned or organised criminal activity, … (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), … (k) a plea of guilty by the offender (as provided by section 22 or Division 1A), … (m) assistance by the offender to law enforcement authorities (as provided by section 23)…

[24]

Objective Circumstances of the Offences

The objective gravity of the offences fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit insofar as the sentence must not exceed that which can be justified as appropriate or proportionate to the gravity of the crimes considered in light of its objective circumstances (Veen v The Queen (No 2) and Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 354). It fixes the lower limit because allowance for the subjective factors of the case ought not produce a sentence which fails to reflect the objective gravity or seriousness of the offences (R v Dodd (1991) 57 A Crim R 349 at 354 and R v Nichols (1991) 57 A Crim R 391 at 395).
The objective seriousness is to be determined by reference to the nature of the offences and not by reference to matters that are personal to a particular offender (Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27]).
In determining the objective seriousness or gravity of the offences the relevant objective circumstances include the factors discussed below.

[25]

Nature of the Offences

The nature and purpose of the statutory provision that has been contravened, and its place in the statutory scheme, are illustrative of the objective seriousness of an environmental offence (Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [168]-[169], Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [49] and Chief Executive, Office of Environment and Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 at [59]).
The relevant objects of the POEOA contained in s 3 of that Act identify the rationale in Parliament creating the offences.
In respect of the first and second water pollution offences, as Preston J stated in Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280; (2008) 163 LGERA 71, "pollution of waters is a result offence where the proscribed result directly undermines the object of the [POEOA]" (at [23]).
In relation to the EPL offence, as the EPA submitted, environmental protection licenses are the primary means of regulation under the POEOA and the commission of the offence therefore undermined the statutory scheme set out in that Act. In Orica Australia (the Nitric Acid Air Lift Incident) the Court opined that (at [104]): 104. …Compliance with licence conditions is the price that entities must pay for permission to engage in potentially polluting manufacturing processes. The conditions imposed in any licence are aimed at maximising beneficial environmental outcomes and minimising environmental harm. They represent a balancing exercise between fostering economic growth and development, on the one hand, and protecting and preserving the environment now and for the future, on the other. Strict compliance with the conditions of any environmental licence is therefore necessary to ensure that this balance is achieved and that the objectives of the POEOA are met.
Sydney Water's conduct during the desilting works breached condition O1.1 of the EPL because it failed to undertake the works in a "competent manner". thereby contravening s 64(1) of the POEOA. The transgression was clearly incompatible with the regulatory regime and the objects of the POEOA, especially with respect to the protection of the environment (see, in particular, s 3(d)) (Orica Australia (the Nitric Acid Air Lift Incident) at [105]).

[26]

Maximum Penalty

The maximum penalty provided for an offence indicates the seriousness with which the legislature views the commission of the offence (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 and Rawson at [57]). It also provides a sentencing yardstick for the case before the Court (Markarian at [31] and Elias v The Queen; Issa v the Queen [2013] HCA 31; (2013) 248 CLR 483 at [27]).
The maximum penalty for an offence against s 120(1) of the POEOA by a corporation is $1,000,000.
The maximum penalty for an offence against s 64(1) of the POEOA by a corporation is also $1,000,000.

[27]

Sydney Water's State of Mind in the Commission of the Offences

[28]

The Application of the Principle in De Simoni

The offence under s 120(1) of the POEOA is one of strict liability. The principle in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 (at 389) applies to offences committed under s 120(1) of the POEOA, and therefore, the Court is precluded from considering Sydney Water's state of mind for the s 120(1) offences by reason of the existence of a more serious water pollution offence under s 116 of the POEOA (Environment Protection Authority v Tea Garden Farms Pty Ltd [2012] NSWLEC 89 at [101]-[102]; Environment Protection Authority v Snowy Hydro Ltd [2008] NSWLEC 264; (2008) 162 LGERA 273 at [145]-[151]; Environment Protection Authority v Queanbeyan City Council (No 3) [2012] NSWLEC 220; (2012) 192 LGERA 415 at [178] and Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) at [127]-[139]). Accordingly, the Court cannot consider whether the first and second water pollution offences were committed intentionally, recklessly, or negligently by Sydney Water.
Sydney Water made the same submission with respect to the commission of the s 64 offence, citing the Court's decision in Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident). Sydney Water argued that having regard to whether or not it acted negligently in the commission of the EPL offence offended the De Simoni principle because it would amount to sentencing it for a more serious crime than that to which it had pled guilty, namely, an offence against s 116 of the POEOA.
Section 116 of the POEOA relevantly provides that: 116 Leaks, spillages and other escapes (1) If a person wilfully or negligently causes any substance to leak, spill or otherwise escape (whether or not from a container) in a manner that harms or is likely to harm the environment: (a) the person, and (b) if the person is not the owner of the substance, the owner, are each guilty of an offence. (2) If: (a) the person in possession of the substance at the time of the leak, spill or other escape, or (b) the owner of any container from which the substance leaked, spilled or escaped, or (c) the owner of the land on which the substance or any such container was located at the time of the leak, spill or other escape, or (d) the occupier of the land on which the substance or an such container was located at the time of the leak, spill or other escape, wilfully or negligently, in a material respect, caused or contributed to the conditions that gave rise to the commission of the offence under subsection (1), that person, owner or occupier is guilty of an offence.

[29]

Sydney Water's Conduct Was Not Criminally Negligent

In order to determine whether or not Sydney Water's conduct was criminally negligent, it is first necessary to identify the correct test for this mental state.
In Gordon Plath of the Department of Environment and Climate Change v Fish [2010] NSWLEC 144; (2010) 179 LGERA 386 the Court articulated the test for criminal negligence as follows (at [81]): 81. The Defendants submitted that the relevant principles (accepted by the Prosecutor) as to whether they were negligent in relation to their advice was that, in the criminal context, negligence means more than a breach of a duty of care. To amount to criminal negligence, the degree of carelessness must be such as to show such a disregard for the objects of the statute as to amount to a crime against the state (R v Bateman [1925] All ER Rep 45; (1925) 19 Cr App R 8; see also Andrews v DPP [1937] AC 576 per Lord Atkin at 583; applied in Cittadini v The Queen [2009] NSWCCA 302 at [38]-[40]). For there to be negligence, there must have been an indifference to an obvious risk (R v Taktak (1988) 14 NSWLR 226 at 247, applied in Cittadini).
Therefore, to amount to criminal negligence the EPA must prove more than a breach of a duty of care or a failure to take relevant precautions.
The test referred to above in Fish been cited and applied on many occasions in this Court (see, for example, Chief Executive, Office of Environment & Heritage v Orica Pty Ltd at [114] per Preston J).
Curiously, the concept of an 'indifference to an obvious risk', which is often quoted in the context of the commission of environmental crime, does not appear to find recent favour in the context of the test for criminal negligence for involuntary manslaughter.
In King v The Queen [2012] HCA 24; (2012) 245 CLR 588 the plurality of the High Court described the evolution of the test for criminal negligence resulting in death as follows (at [26]-[29] per French CJ, Crennan and Kiefel JJ): 26. In 1925 in Bateman, Hewart LCJ referred to epithets, including "culpable", "criminal" and "gross", used to describe the degree of negligence necessary to establish criminal liability. He said: "whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment." In Andrews v Director of Public Prosecutions Lord Atkin effectively endorsed that rather instrumental criterion of criminal negligence. 27. Culpable negligence giving rise to criminal liability at common law was not the subject of elaboration beyond the kind of directions approved in Bateman and Andrews. In Akerele v The King the Privy Council referred to the impossibility of defining culpable negligence and the impossibility of making the distinction between actionable negligence and criminal negligence "except by means of illustrations drawn from actual judicial opinions". 28. The common law of criminal negligence as enunciated in Bateman, Andrews and Akerele, was considered in Australia in connection with the construction of ss 289 and 266 of the Criminal Codes of Queensland and Western Australia respectively. Those sections imposed a legal duty on persons in charge of dangerous things "to use reasonable care and take reasonable precautions" to avoid danger to the life, safety or health of any person. Section 266 of the Criminal Code (WA) was considered by this Court in Callaghan v The Queen and s 289 of the Criminal Code (Q) by the Supreme Court of Queensland in R v Scarth. They were construed as importing the common law of criminal negligence. The common law distinction between criminal and civil negligence was to be maintained. The Court in Callaghan referred to Doherty and Andrews, the derivation of the Criminal Code (WA) from the English Criminal Code Bill, and Stephen's discussion, in his History, of killing by omission. 29. The common law standard of criminal negligence expounded in Bateman and Andrews was also accepted in Victoria in its application to involuntary manslaughter. In Nydam v The Queen a unanimous Full Court of the Supreme Court, in a decision dealing primarily with the question of mens rea, described the requisite standard of negligence as involving: "such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment." The criterion of "a high risk that death or grievous bodily harm would follow" was adopted by the plurality in Wilson v The Queen.

[30]

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

Section 241(1)(a) of the POEOA requires the Court to take into account the extent of the harm caused, or likely to be caused, to the environment by the commission of the offence. "Harm" is defined in the dictionary to the POEOA as: harm to the environment includes any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution.
In Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Preston J stated that harm includes both actual harm and potential harm (at [145]-[148]): 145. Harmfulness needs to not only be considered in terms of actual harm, the potential or risk of harm should also be taken into account: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 and Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [175]. Harm should not be limited to measurable harm such as actual harm to human health. It can also include a broader notion of the quality of life. 146. Harm can include harm to the environment and its ecology. Harm to an animal or plant not only adversely affects that animal or plant, it also affects other biota that have ecological relationships to that animal or plant: Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [174]. 147. Harm can be direct or indirect, individual or cumulative. Activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernible direct harm to human interest, should also be treated seriously. 148. The culpability of the defendant depends in part on the seriousness of the environmental harm. Sentencing courts have exercised their discretion in relation to penalty on the principle that the more serious the lasting environmental harm involved, the more serious the offence and, ordinarily, the higher the penalty: Camilleris Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 701. If the harm is substantial, this objective circumstance is an aggravating factor: s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999.
The meaning of the words "likely to be caused to the environment" was considered by Lloyd J in Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66, where his Honour stated (at [44]), "in considering the harm likely to be caused to the environment, it is to be noted that the word 'likely' in this context has been held to mean "a real or not remote chance or possibility regardless of whether it is less or more than a fifty per cent chance".

[31]

Mill Stream and Botany Bay

Mill Stream is an engineered tidal channel, commencing from the downstream side of Mill Pond weir. It flows into Botany Bay approximately 1 to 1.2 km downstream of the weir.
Mill Stream is highly modified as the result of development, with Sydney Airport's third runway forming its western boundary and Foreshore Road located along its eastern shoreline.
Mill Stream and the north-eastern areas of Botany Bay (including where Foreshore Beach is located) are considered to be degraded estuarine systems.
Mill Stream forms a shallow (less than 2-3 m) estuarine channel, bounded at its most upstream point by Mill Pond weir, which restricts freshwater flow to and from Mill Pond. At its downstream end, near Foreshore Beach, Mill Stream is tidal and has a shoaled and narrow entrance. Circulation within Mill Stream is dominated primarily by tidal flows under dry weather conditions and freshwater inflows from Mill Pond under wet weather conditions.
The Mill Pond catchment extends upstream to Centennial Park. Due to the highly urbanised catchment, the aquatic environment within Mill Stream and the northern parts of Botany Bay, including Foreshore Beach, is under significant pressure and has been impacted by various sources of pollution, such as sewage overflows, stormwater runoff and other discharges from the urban catchment.

[32]

Beachwatch Grading at Foreshore Beach

The NSW Office of Environment and Heritage's ("OEH") Beachwatch program monitors and publishes information about recreational water quality at swimming sites in the Sydney, Central Coast, Hunter and Illawarra regions. The Beachwatch program samples water at Foreshore Beach approximately every five days and publishes a risk rating on its website indicating whether it is safe to swim at the beach or whether there is a risk to the health of swimmers from water pollution.
In accordance with the National Health and Medical Research Council's Guidelines for Managing Risks in Recreational Water (2008) ("NHMRC Guidelines"), the Beachwatch program only tests for enterococci as the single preferred faecal indicator in marine waters. These bacteria are excreted in faeces and are rarely present in unpolluted waters.
The OEH publishes an annual State of the Beaches Report which grades swimming sites in New South Wales as "Very Good", "Good", "Fair", "Poor" or "Very Poor" in accordance with NHMRC Guidelines. These annual "Beach Suitability Grades" provide a longer-term assessment of how suitable a beach is for swimming. For locations with a beach suitability grade of "Very Poor" the State of the Beaches Report indicates that "it is generally recommend to avoid swimming at these sites almost all of the time".
For 2016-2017 and 2017-2018, the annual beach suitability grade for Foreshore Beach was "Very Poor" and the beach was stated as being "very susceptible to pollution from sewerage overflows discharging to nearby Mill Stream".
From June to July 2017, the Beachwatch program's enterococci count trigger value for Foreshore Beach was 40 colony forming units ("CFU")/100 mL. This means that where a water sample contains an enterococci count of 40 CFU/100 mL or higher, the OEH publishes a warning on its website that there is an increased risk to human health and that it is unsafe to swim at Foreshore Beach.
During FST's sampling at the eastern end of Foreshore Beach from 20 June to 21 July 2017, levels of enterococci at that site exceeded the Beachwatch trigger value of 40 CFU/100 mL only once on 13 July 2017.

[33]

ANZECC Guidelines

The Australian and New Zealand Guidelines for Fresh and Marine Water Quality (2000) ("ANZECC Guidelines 2000") are used by the New South Wales Government to assess levels of contaminants, including bacterial contamination, within waterways.
When concentrations exceed the guideline trigger values ("GTVs"), there is a risk of impacts, including adverse health or environmental impacts, occurring.
For faecal coliform and enterococci there are GTVs for primary and secondary recreational contact with humans. Primary contact is swimming, and secondary contact encompasses other activities with less direct contact with water, such as sailing, fishing and dog walking.
The GTVs for faecal coliforms are 150 CFU/100 mL (primary contact) and 1000 CFU/100 mL (secondary contact). The GTVs for enterococci are 35 CFU/100 mL (primary contact) and 230 CFU/100 mL (secondary contact).
The GTVs for dissolved oxygen in estuaries are 80% (lower limit) and 110% (upper limit) saturation. The GTV of 80% saturation would be the equivalent of approximately 6.8 mg/L of dissolved oxygen.
The GTVs for pH in estuaries are 7.0 (lower limit) and 8.5 (upper limit).

[34]

The Water Sampling Results

From 6 June to 20 July 2017, water samples were taken from various locations at increasing distances from the overflow structure (excluding sample site 1, which was taken at Mill Pond upstream of the overflow structure and Mill Pond weir). Sample site 9 was in Botany Bay at the eastern end of Foreshore Beach and at the end of the northern pier of Port Botany boat ramp. Images of sites 1 to 8 from which water samples were taken are reproduced below:
Samples of water taken from the sites 2 and 3 (Mill Stream weir channel), 6 (Mill Stream west) and 7 (Mill Stream east) exceeded the GTV for faecal coliform (secondary contact) from 6 to 23 June 2017. A water sample taken from site 8 (towards the western end of Foreshore Beach) exceeded the GTV for faecal coliform (secondary contact) on 17 June 2017). All sampling sites were below the GTV (primary contact) by 3 July 2017.
On 6 June 2017, levels of faecal coliform in Mill Stream ranged from 33,000 to 67,000 CFU/100 mL, which was 220 to 446 times the GTV for primary recreation and 33 to 67 times the GTV for secondary recreation.
At sample site 1 (located in Mill Pond upstream of the overflow structure and Mill Pond weir), water samples also exceeded the GTV for faecal coliform (primary contact) on 6, 17, 23, 26 and 29 June 2017.
The level of enterococci at all sites sampled on 6 June 2017 within Mill Stream and Botany Bay (Foreshore Beach) exceeded both the GTV (primary contact) of 35 CFU/100 mL and the Beachwatch 40 CFU/100 mL trigger value. All sampling sites except sampling site 1 (Mill Pond upstream of the overflow structure), 4 (Mill Stream) and the Beachwatch sample (near site 9, on the eastern end of Foreshore Beach) also exceeded the GTV (secondary contact) of 230 CFU/100 mL on 6 June 2017.
On 6 June 2017, levels of enterococci in Mill Stream at sites 6 (Mill Stream west) and 7 (Mill Stream east) ranged from 980 to 1,100 CFU/100 mL, which was 24 to 27 times the Beachwatch trigger value of 40 CFU/100 mL, and the level of enterococci at sample site 8 (towards the western end of Foreshore Beach) was 14 times the Beachwatch trigger value of 40 CFU/100 mL.
Water samples from sample site 1 (Mill Pond upstream of the overflow structure), also indicated the presence of elevated levels of enterococci exceeding the GTV (primary contact) on 6, 17, 23, 26 and 29 June 2017.

[35]

Actual Environmental Harm Caused by the First Water Pollution Offence

The parties agreed that the dry weather sewerage overflows of 22 May to 6 June 2017 (the first water pollution offence) caused actual harm to the environment by polluting the aquatic environment and degrading the water quality of Mill Stream and Foreshore Beach.

[36]

Likely Environmental Harm Caused by the First Water Pollution Offence

The first water pollution offence also caused likely harm to the environment by creating an aquatic environment less able to support and accommodate aquatic plants and organisms. This conclusion is based on the following agreed facts.
First, on the morning of 26 May 2017, an EPA authorised officer, Mr George Orel, attended Foreshore Beach, Botany Bay by boat as part of an unrelated project to carry out biota sampling. Mr Orel was accompanied by his assistant and a commercial fisherman, who helped with sampling. Mr Orel identified a sewage odour as he landed on Foreshore Beach approximately 200 m north west of the Port Botany Boat Ramp.
Upon inspection of the sand around Mill Stream lookout and the mouth of Mill Stream, Mr Orel observed areas of darker, turbid water within odorous pools on the beach, occurring intermittently over an area of about 100 m (approximately in the same location as sampling site 7). The pools were odorous with black sediment at the bottom. The sewage odour increased towards the mouth of Mill Stream.
As at the morning of 26 May 2017, overflows had been occurring from the overflow structure into Mill Stream during the four prior evenings. It may be inferred that the sewage odour and pools of dark turbid water identified by Mr Orel near Mill Stream lookout contained sewage contaminated water from the previous nights' overflows.
Second, results reported for dissolved oxygen on 6 June 2017, indicated that potential environmental harm as a result of dissolved oxygen levels below the GTV (less than 80%) within Mill Stream, but not at Foreshore Beach (Botany Bay), had occurred at the time of sampling.
Dissolved oxygen is required by aquatic organisms to perform cellular processes such as respiration and needs to be maintained at a certain level for organisms to survive. Dissolved oxygen is often measured in aquatic systems to determine if a waterway can support aquatic life. The GTV of 80% in the ANZECC Guidelines 2000 was developed to provide a range within which the majority of plants and animals can be sustained within a waterway. Low dissolved oxygen may cause environmental harm such as inducing fish kills or be lethal to benthic invertebrates, such as mussels and worms, living within the sands on the seabed. Benthic invertebrates are unable to move away from areas of low sustained dissolved oxygen which results in mortality.

[37]

Actual Environmental Harm Was Caused by the Second Water Pollution Offence

Again, the parties agreed that the dry weather sewerage overflows of 11 to 16 June 2017 (the second water pollution offence) caused actual harm to the environment by polluting the aquatic environment and degrading the water quality of Mill Stream and Foreshore Beach.

[38]

Likely Environmental Harm Caused by the Second Water Pollution Offence

There was equally no serious dispute that likely harm to the ecological environment of Mill Stream and Botany Bay was caused by the commission of the second water pollution offence.
Dissolved oxygen was below the GTV (80% saturation) at Botany Bay sampling sites until at least 23 June 2017 and at Mill Stream sampling sites until at least 26 June 2017.
Daily volumes and nominal concentrations of sewage delivered to Mill Stream during the second overflow period were similar to the first overflow period and I find that as a consequence there were adverse impacts on the ecology of the receiving environment.
The dry weather overflows from 11 to 16 June 2017 occurred directly following a wet weather event which polluted the receiving waters (for example, from stormwater runoff) therefore diluting the effect of the dry weather sewage overflows.
As the influence of the wet weather overflows from 6 to 11 June 2017 on the receiving environment declined with time, the relative influence of the dry weather sewerage overflows continued. At least during the latter part of 11 to 16 June 2017, dry weather sewage overflows were a dominant influence on the water quality within Mill Stream and Foreshore Beach.
There was also the potential for harm to aquatic ecosystems from nutrients and metal concentrations within the sewage discharged during 11 to 16 June 2017.
Further, dry weather overflows during at least part of the period 11 to 16 June 2017 posed an increased risk to human health in Botany Bay. The risk to human health would have been the most significant during 13/14 to 16 June 2017 when public use of the waterway recommenced after the rainfall event.

[39]

Extent of the Environmental Harm

While it may be concluded based on the facts above that actual and likely environmental harm were caused by the commission of the first and second water pollution offences, the extent of that harm was in dispute primarily due to the nature of the receiving waters.
When considering the extent of harm caused by an offence it is relevant for the Court to turn its mind to the condition of the receiving environment. However, the fact that receiving waters have been modified, disturbed or degraded prior to a polluting event cannot be a factor mitigating Sydney Water's conduct (Environment Protection Authority v Ecolab Pty Limited [2002] NSWLEC 206; (2002) 123 LGERA 269 at [14], Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 at [149] and Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 4) [2011] NSWLEC 119 at [89]).
As was noted in Ecolab (at [13]-[14]): 13 In assessing the extent of environmental harm it is necessary for the Court to consider the modified state of the environment: see Environment Protection Authority v Rail Infrastructure Corporation [2002] NSWLEC 37 at par 80. Such inquiry requires a comparison of the condition of the creek before and after the contamination event. 14 Findings that the pre-existing condition of the creek was polluted do not serve to mitigate the defendant's conduct: see State Pollution Control Commission v White Wings Limited (unreported, Land & Environment Court, 1 November 1991). As Bignold J observed in that decision: "...a Defendant discharging effluent into a degraded waters is not to be given any advantage by way of mitigation simply because the receiving waters are in a degraded state." Nevertheless, it is important to determine the condition of the receiving waters in order to assess the extent of the environmental harm occasioned by the pollution.
As the agreed facts demonstrate, the receiving environment in the present case was considerably modified and degraded.
In addition to agreeing to the facts referred to above, Sydney Water made the following submissions on the condition of the receiving waters: 1. there could be no suggestion that there was any pollution of Mill Pond. It was for this reason that the sampling location 1 was in Mill Pond immediately upstream of the weir; 2. the sewage discharged into the weir and then through a pipe into Mill Stream into a "highly modified" "engineered tidal channel". Both Mill Stream and the proximate areas of Botany Bay, including Foreshore Beach, were "degraded estuarine systems" and the aquatic environment within Mill Stream and the northern parts of Botany Bay (including Foreshore Beach) were likely to be under significant pressure from various sources of pollution. Foreshore Beach was graded in the State of the Beaches Report between 2016 to 2018 as "Very Poor", which meant that the general recommendation was to avoid primary contact at that beach; 3. neither the weir nor Mill Stream was used by persons for activities involving either primary or secondary contact with the waters therein; 4. the EPL permitted the discharge of sewage effluent during wet weather. While this effluent was diluted in wet weather due to increased stormwater entering the sewage system, Mill Stream also received other pollutants during wet weather which were captured and stored in Mill Pond in dry weather but which could be flushed out in wet weather if Mill Pond overtopped; 5. faecal coliform levels in Mill Stream upstream of the discharge point (tested at sample site 1) on 6 June 2017 were 450 CFU. That is, unsuitable for primary contact but nevertheless suitable for secondary contact. Faecal coliform levels at the end of Foreshore Beach closest to the discharge point of Mill Stream (tested at sample site 8) on 6 June 2017 were 500 CFU. That is, unsuitable for primary contact but, again, suitable for secondary contact. This was the common condition of Foreshore Beach. Moreover, the unaffected upstream waters of Mill Pond had levels of 450 CFU, which would also have necessitated avoiding primary contact; 6. by 17 June 2017, the faecal coliform levels had increased significantly due to rain events between 7 to 10 June 2017, but by 20 June 2017 secondary contact was permissible as was primary contact near the Port Botany boat ramp; 7. similar results existed for enterococci, which were also found in elevated levels in Mill Stream, upstream of the discharge point. On 6 June 2017, secondary contact was available at sampling point 9 near Port Botany boat ramp. The rain events from 7 to 10 June 2017 explained the elevated enterococci levels on 17 June 2017, which returned to below secondary contact levels by 20 June 2017. By 20 June 2019 primary contact was available at sampling site 9 and secondary contact available at sampling point 8; 8. upstream of the weir in Mill Pond there was only one occasion where those waters, which discharged into Mill Stream and then Botany Bay, met the primary contact GTV for enterococci, namely, on 17 June 2017; 9. the dissolved oxygen levels in Mill Stream were "far from conclusive". Upstream in Mill Pond the water did not meet the GTV of 80% on 6 June 2017 at sampling site 6 where the oxygen was significantly depleted. However, at sample sites 7 and 8 the GTV exceeded 80%; 10. after the wet weather event on 7 to 10 June 2017, the 17 June 2019 sampling showed, not unexpectedly given the rain event, reduced dissolved oxygen levels; and 11. while there may have been the presence of benthic invertebrates in the Mill Stream susceptible to adverse impacts consequent upon low dissolved oxygen levels caused by the discharges, they were already part of a highly modified, degraded estuarine system under significant pressure.

[40]

Environmental Harm Caused by the EPL Offence

In respect of the harm, both actual and likely, and its extent, caused by the commission of the EPL offence, the Court relies on the evidence and its findings with respect to the water pollution offences discussed above.

[41]

There is No Double-Counting

Sydney Water submitted that to the extent that the harm caused to the environment by the commission of the first water pollution offence was found to be an aggravating factor under s 21A(2)(g) of the CSPA, this finding could not be taken into account with respect to either the second water pollution offence or the EPL offence because to do so would result in double, or possibly, triple counting (citing R v Johnson [2005] NSWCCA 186 at [22] and Kassoua v R [2017] NSWCCA 307 at [14]).
In cases where an aggravating factor is an element of the offence or is an inherent characteristic of offences of the kind for which a sentence is being imposed, it is necessary to consider the risk of double counting by increasing punishment for a factor that has already been taken into account as an element of the offence (Andrews v R (2006) A Crim R 505 at [18]).
In Kassoua Basten JA cautioned as follows (at [14]): 14. There is a more general risk involved in the counting of aggravating factors by reference to the paragraphs of s 21A(2). The relevance of aggravating factors is in determining the culpability of the offender. Often aggravating factors will not be independent of each other and there is a risk that any attempt to give particular weight to a particular factor will result in double counting, or worse.
With respect to the water pollution offences and the EPL offence, harm to the environment is not an element of the offences and consideration of the extent of the harm caused by the commission of the offences will not infringe the rule against double counting on this basis. Having said this, at least in respect of the water pollution offences, harm to the environment is arguably an inherent characteristic of the offences of the kind for which a sentence is being imposed. But substantial harm to the environment is not, and it is therefore difficult to understand the application of the rule to the present facts. For each offence, consideration of the harm caused to the environment must be separately assessed and determined. To do so is necessary in order to assess the objective seriousness of the offending conduct for each of the charges to which Sydney Water has entered a guilty plea.
Where, as with the present incident, a single series of events has given rise to the commission of several different criminal offences to which separate penalties attach, the Court must, however, take into account the totality of the penalties to be imposed. To do otherwise would be contrary to the totality principle (discussed further below). But of itself, there is nothing erroneous to simply determine a penalty for each of the two s 120 offences or to separately punish for the EPL offence, even if the offences have resulted from overlapping conduct. On the contrary, provided that the totality principle is applied, such an approach is appropriate and the proscription against double counting is not enlivened.

[42]

Sydney Water's Reasons for Committing the Offences

The criminality involved in the commission of the offence by an offender is measured not only by the seriousness of what actually occurred but also by reference to the reasons for its occurrence (Axer at [366] and Bentley at [237]). An offence committed for financial gain is objectively more serious than one which is not.
There is no evidence that the offences were committed for financial gain.

[43]

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

Section 241(c) of the POEOA obliges the Court to have regard to the extent to which the person who committed an offence could reasonably have foreseen the harm caused or likely to be caused to the environment.
It was agreed, and I find on the evidence, that the actual and potential harm caused by the commission of the offences was reasonably foreseeable.

[44]

Control Over Causes

Section 241(1)(d) of the POEOA requires the Court to take into account the extent to which the person who committed the offence had control over the causes that gave rise to it.
It was not in dispute that Sydney Water had control over the causes of the commission of the offences.

[45]

Practical Measures Which Could Have Been Taken to Prevent or Mitigate the Environmental Harm Caused by the Commission of the Offences

The Court must take into account the practical measures available to the defendant to control, abate or mitigate the environmental harm caused by the commission of an offence (s 241(1)(b) of the POEOA).
The parties detailed a number of practical measures which Sydney Water should have, but failed to, implement in order to prevent or mitigate the actual and potential environmental harm caused by the commission of the offences. These measures are the same as those outlined above in the discussion of how Sydney Water carried out the licensed activity in a less than competent manner, giving rise to the EPL offence and the water pollution offences (see above at [99]-[106]). They are relied upon without repetition here.

[46]

Conclusion on Objective Seriousness

In R v DP [2019] NSWCCA 55, Fullerton J opined that (at [42]): 42. While his Honour's assessment of the objective seriousness of the offending might have been expressed differently consistently with the circumstances of aggravation he found established on the evidence, I am not persuaded that his appointment of the offending "in the middle of a very wide range" was not open to him, the more so given that the distinction between offending in the mid-range or above it is imprecise to say the least. I would also add my agreement with the observations of McCallum J (as her Honour then was) in Yeung v R [2018] NSWCCA 52 where, at [19]-[30] (Hoeben CJ at CL and Simpson JA agreeing), her Honour said that the appointment of objective seriousness referable to a notional point on a spectrum of culpability (although convenient as a shorthand descriptor) is not a necessary component of the sentencing task, and to express objective seriousness in that way is rarely definitive of that part of the sentencing exercise that requires the sentencing judge to make an evaluative assessment of the gravity of the particular offending or the culpability of the offender.
Nevertheless, a specific characterisation of the objective seriousness of the offences remains convenient.
I find, for the reasons discussed above, that the first water pollution offence is at the upper end of the moderate range of objective seriousness having regard to (among other circumstances): the 16 day duration of the dry weather sewage overflows; the volume of sewage discharged (hundreds of millions of litres); the degraded state of the receiving environment; the fact that the pollution reached the waters of Botany Bay at Foreshore Beach; the actual and likely harm to the aquatic environment of Mill Stream and Botany Bay and the likely harm to human health; the amenity impacts; the foreseeability of the harm; and the practical measures that a competent operator could have taken to avoid the harm.
I find that the second water pollution offence should, however, be assessed as slightly lower than the objective seriousness of the first pollution offence, but still characterised as moderately objectively serious having regard to (among other circumstances): the five day duration of the dry weather sewage overflows; the volume of sewage discharged (again millions of litres, albeit not anywhere near as much as that discharged during the first water pollution offence); the state of the receiving environment; the fact that the discharges continued to pollute the waters of Botany Bay at Foreshore Beach until at least 23 June 2017; the ongoing amenity impacts; the foreseeability of the harm; and the practical measures that a competent operator could have taken to avoid the harm. The Court has taken into account that but for the rain event of 7 to 10 June 2017, the two water pollution offences would have constituted a single pollution offence.

[47]

Subjective Circumstances of Sydney Water

A proportionate sentence requires the Court to take into account any mitigating factors that are personal to Sydney Water (s 21A(3) of the CSPA). Relevant subjective circumstances include: 1. whether the environmental harm caused by the commission of the offences was not substantial (s 21A(3)(a)); 2. whether Sydney Water has demonstrated remorse for its commission of the offences (s 21A(3)(i) of the CSPA); 3. whether, and when, Sydney Water entered a guilty plea (ss 21A(3)(k) and 22 of the CSPA and R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [152]-[155]); 4. whether Sydney Water provided assistance to the regulatory authorities in the investigation and prosecution of the offences (ss 21A(3)(m) and 23 of the CSPA); 5. whether Sydney Water is of good character (s 21A(3)(f) of the CSPA); and 6. whether Sydney Water has a prior criminal record (s 21A(3)(e) of the CSPA).

[48]

The Environmental Harm Was Substantial

Given the findings above concerning the extent of the environmental harm caused by the commission of the offences, Sydney Water cannot avail itself of this factor in mitigation.

[49]

Contrition and Remorse

In his affidavit, affirmed 12 June 2019, Mr Gary Hurley, the Manager - Networks at Sydney Water, expressed contrition and remorse for the commission of the offences on behalf of Sydney Water. In addition to Mr Hurley, a number of senior personnel from Sydney Water were present in Court during the sentencing hearing: 1. Mr Bernie Sheridan (Acting General manager - Customer Delivery); 2. Mr Ian Fairbairn (Environmental Performance Improvement Lead); and 3. Mr Peter Chapman (Area Manager - South).
Sydney Water submitted that its actions immediately following the incident were also demonstrative of its contrition and remorse: 1. it promptly reported the incident to the EPA upon becoming aware of the offences; 2. it ceased all high-risk works across its networks until such time that Sydney Water could be sure of no "repeat impacts to the environment"; 3. it removed the stop boards as soon as it was safe to do so in order to prevent further discharging; and 4. it immediately voluntarily commenced clean-up works (discussed further below).
In addition, Mr Hurley deposed that since the commission of the offences Sydney Water has made "important changes" to its operating procedures, including: 1. improvements to the FIFM planning process to make it more comprehensive and accountable; and 2. improvements to its monitoring of the SWSOOS.
As a result of the review of the FIFM process Sydney Water has identified a number of weaknesses in the FIFM Plan for the desilting works. In particular, the Plan did not adequately: 1. identify the height of the overflow point on the overflow structure and did not adequately assess the potential for overflows occurring by reason of the flow isolations at this location; 2. require monitoring of the overflow structure or the gauge to confirm that overflows were not occurring; 3. describe a clear written procedure to determine when the coffer dam and stop boards would be removed; 4. require the review of sewer flow data to determine the pattern or timing of peak sewer flow height in SWSOOS1; and 5. require the carrying out of hydraulic monitoring to confirm that there was sufficient hydraulic capacity in SWSOOS2 and cross connection 1 to transfer and carry flows.
Sydney Water has amended its FIFM planning process to make it more comprehensive and accountable. These improvements include that: 1. all FIFM Plans are now incorporated into Sydney Water's electronic workflow system (SW Connect) meaning that all information is captured at a single location and available in real time for team members and project managers. Had this been in place at the time of the desilting works the project managers would have had access to all relevant data and would have been more capable of identifying project risks as they occurred; 2. two new hold points have been incorporated into the planning phase for complex FIFM Plans. The first hold point requires a peer review of the FIFM Plan, in addition to the review processes already encapsulated in the existing FIFM planning process. The second hold point requires mandatory endorsement of the FIFM Plan by a Level 3 Sydney Water Manager where the plan involves a significant asset; and 3. the learnings from the offences have been used to develop new criteria for reviewers tasked with assessing and approving FIFM Plans.

[50]

Assistance to the EPA

Sydney Water cooperated with the EPA during its investigation of the incidents by: 1. providing it with all necessary incident reporting; 2. providing it with action plans for the clean-up of Mill Stream in response to the clean-up notice; 3. promptly implementing and completing the clean-up measures both prior to and following the issuing of the clean-up notice; 4. providing it with the results of water quality sampling and odour surveillance and monitoring as required by the clean-up notice; 5. providing it with updates on clean-up measures; and 6. providing it with detailed modelling and analysis of the incident.

[51]

Early Plea of Guilty

Sydney Water entered a plea of guilty at the earliest available opportunity. It is therefore entitled to the full 25% discount for the utilitarian value of its plea.

[52]

Prior Convictions of Sydney Water

Prior convictions are an aggravating factor under s 21A(2)(d) of the CSPA. On the other hand, a lack of significant prior convictions can act as a mitigating factor under s 21A(3)(e) of the CSPA.
Sydney Water has four prior convictions for similar offences. The EPA has also accepted a number of enforceable undertakings given by Sydney Water, however, because these are not criminal convictions they are irrelevant for the purposes of s 21A(2)(d).
First, on 21 April 2015 Sydney Water was convicted of an offence against s 120 of the POEOA and an offence against s 64(1) of the POEOA in respect of an incident at the MWTP (the Malabar Beach case).
Second, on 21 July 2000 Sydney Water was convicted of an offence of pollution of waters contrary to s 16(1) of the Clean Waters Act 1970 in respect of an overflow of sewage from a manhole in Helensburgh to Camp Creek on 12 October 1998 (Environment Protection Authority v Sydney Water Corporation [2000] NSWLEC 156).
Third, on 3 March 2000 Sydney Water was convicted of an offence of pollution of waters contrary to s 16(1) of the Clean Waters Act (Environment Protection Authority v Sydney Water Corporation [2000] NSWLEC 80). During the operation of its West Camden Sewage Treatment Plant on 22 to 23 October 1998, approximately 7,000-8,000 L of aluminium sulphate was discharged into a tributary of a creek.
Finally, on 12 November 1998 Sydney Water was convicted of an offence against cl 17D(9) of the Pollution Control Act 1970 for contravention of a condition of a pollution control licence requiring it to maintain and operate plant and equipment in a proper and efficient manner and condition (Environment Protection Authority v Sydney Water Corporation [1998] NSWLEC 144). The incident involved a cliff face discharge at North Head Sewage Treatment Plant.
Sydney Water submitted that apart from the 2015 conviction, its prior convictions related to different premises and to conduct which occurred almost twenty years ago.
Sydney Water urged the Court to adopt a similar approach as that taken by Preston J in the Malabar Beach case (at [83]-[84]): 83 Sydney Water has had four prior convictions over the last 20 years. The most recent conviction related to conduct in 1998, about 15 years before the conduct giving rise to the current offences in 2013. The prior offences related to different plants and different infrastructure to the Plant at Malabar. The causes of, and circumstances giving rise to, the prior offences were different to the causes of, and circumstances giving rise to, the current offences. The consequences of the offences, including the nature and extent of environmental harm caused, in each case was different to one another and to the current offence. In these circumstances, I do not consider that Sydney Water's prior convictions manifest a continuing attitude of disobedience of the law or that Sydney Water has not been deterred from reoffending by the sentences imposed for the prior offences, or that it has a propensity to reoffend. I do not view Sydney Water's record of prior convictions as an aggravating factor: s 21A(2)(d) of the CSP Act. 84 On the other hand, it cannot be viewed as a mitigating factor under s 21A(3)(e) of the CSP Act. Sydney Water does have a record of four prior convictions for environmental offences arising from its operation of the sewerage system in Sydney. It cannot be treated as a first time offender or as an offender with little criminal history.

[53]

The Environmental Harm Caused Was Not Substantial

Given my earlier finding that the harm caused by the commission of the offences was substantial, s 21A(3)(a) of the CSPA does not apply to mitigate any sentence likely to be imposed.

[54]

The Likelihood of Sydney Water Reoffending

Given Sydney Water's prior criminal record, I find that there is a likelihood, albeit relatively low, that it will reoffend (s 21A(3)(g) of the CSPA). In arriving at this conclusion, I am mindful of Mr Hurley's evidence that Sydney Water had a number of controls in place to manage the risk of harm to people, the environment, and infrastructure during the flow isolations necessary for the desilting works. These controls were outlined in the FIFM Plan. Furthermore, shortly after becoming aware of the incident Sydney Water commissioned a detailed review of the incident and the FIFM process and improved its monitoring of the SWSOOS.

[55]

The Good Character of Sydney Water

Despite its prior convictions, I find that Sydney Water is of good corporate character. In his affidavit, Mr Hurley detailed the extensive community work undertaken by Sydney Water, including the delivery of the following projects: 1. a partnership with the Parramatta River Catchment Group to make the Parramatta River swimmable by 2025; 2. an infrastructure project to eliminate the need for Sydney Water to discharge raw sewage into the ocean at Vaucluse and Diamond Bay (which it is currently licensed to do); 3. an extensive infrastructure upgrade project to improve beach and harbour quality and the development of water quality models of Sydney Harbour and Botany Bay; 4. partnerships with local councils to better treat stormwater before it enters waterways to improve waterway and wetland health; 5. education programs in local primary schools to inform students about Sydney Water's systems and the challenges associated with water management; 6. participation in educational events such as the Australian Museum Science Festival, Youth Eco Summit, and NSW Geography and Science Teachers Association conferences; 7. conducting public tours of treatment plants and heritage sites owned by Sydney Water; 8. "Brand Without a Bottle", a program aimed to promote tap water in schools; 9. "Beat the Bottle", a campaign to reduce bottled water usage; 10. partnerships with 25 local councils to deliver 170 permanent water stations in public places; 11. a fleet of 50 portable water stations which it provides at events; 12. contributions to the Climate Change Fund for the "WaterSmart Cities" program totalling $6.38 million; 13. a drought response water efficiency campaign called "Love Water Don't Waste It" to promote water saving behaviour; and 14. a community grants program to support projects in areas such as health and wellbeing, education and environment, safety, arts and heritage.

[56]

The Offence Could Have Been Prosecuted in the Local Court

In Harris (at [92]) the Court of Criminal Appeal held that this Court must take into account whether the offence could have been prosecuted in the Local Court. While I have taken this factor into account, I place limited weight on it given the complexity of the present proceedings.

[57]

Deterrence, Retribution and Denunciation

The Court is required to take into account both specific and general deterrence (Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 (at 569 per Brennan J).
The penalty imposed by the Court must serve as a general deterrent (Environment Protection Authority v Crown in the Right of New South Wales (Office of Environment and Heritage) [2019] NSWLEC 66 at [175]-[177] and see s 3A(b) of the CSPA).
The Court accepts that embedded with the determination of the appropriate sentence to be imposed on Sydney Water must be an element of general deterrence to ensure that operators of large scale sewerage utilities do so in a competent manner that does not harm the environment.
In relation to specific deterrence (s 3A(b) of the CSPA), Sydney Water submitted that there was no need for this element to be considered in the imposition of an appropriate penalty in this case because "compliance with the environmental laws of this State and the protection of the environment form a fundamental element of Sydney Water's day to day operations" and that, therefore, "Sydney Water is acutely aware of its responsibilities."
While this may be so, Sydney Water has a history of prior offending. In addition, it continues to operate the Southern Suburbs Sewage Treatment System and other similar systems. Accordingly, consideration of specific deterrence is necessary (Environment Protection Authority v Ravensworth Operations Pty Limited [2012] NSWLEC 222 at [48] and Environment Protection Authority v Whitehaven Coal Mining Limited [2019] NSWLEC 27 at [251]).

[58]

Consistency in Sentencing

The task of the sentencing court is to seek even-handedness in the imposition of a sentence (R v Oliver (1980) 7 A Crim R 174 at 177 and R v Visconti [1982] 2 NSWLR 104 at 107C). However, care must be taken in achieving consistency. There is always difficulty comparing the penalty in one case with that in another because of the wide divergence of facts and circumstances in each case (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 365). The sentence imposed in a single case does not demonstrate the limits of a sentencing court's discretion (Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at [35] and Environment Protection Authority v Barnes [2006] NSWCCA 246 at [79]).
The EPA relied on three cases where an offender was sentenced for pollution of waters (s 120(1) under the POEOA) and a breach of an EPL (s 64(1) under the POEOA).
The first was the Malabar Beach case. The offences in that case related to the discharge over two days of treated effluent which leaked from a split joint in an effluent pipe into the ocean at a location not authorised by the EPL. A significant volume of treated effluent was discharged (at least 117,000 to 500,000 L), but there was no evidence of actual environmental harm to marine organisms, ecological communities, or human health. The beach was closed to the public for two days. Overall, Preston J found the harm to be substantial but the objective seriousness to be in the "low to moderate range." Sydney Water was ordered to pay $78,750 for each offence after discounting for an early plea of guilty and the application of the totality principle.
Second, Environment Protection Authority v Hawkesbury City Council [2017] NSWLEC 39, which involved a discharge of sewage (approximately 643,840 L) from a council's sewage treatment plant over two charge periods from 16 to 20 July 2015 and from 6 to 9 August 2015, to a nearby nature reserve and into a watercourse. The Court found no evidence of actual harm, but that there was likely temporary harm to the aquatic environment of the watercourse from the July incident and a potential risk to the public from the August incident. The objective seriousness of the July incident was found to be at the low end of the moderate range and the objective seriousness of the August incident was found to be at the high end of the low range. The Council had no prior convictions. The offender was ordered to pay a total of $175,000 to National Parks and Wildlife Service ($119,000 for the July incident and $56,000 for the August incident) after discounting for various mitigating factors and the application of the totality principle.

[59]

Costs

Sydney Water agreed to pay the EPA's investigation costs fixed in the sum of $3,267.60 pursuant to s 248 of the POEOA.
Sydney Water has also agreed to pay the EPA's professional costs, however, these have not been agreed. Because there was no agreement between the parties, under s 257B of the Criminal Procedure Act 1986 the professional costs will need to be assessed under s 257G(b) of that Act.
While it is legitimate to take into account any associated costs order in determining the appropriate penalty to be imposed (Harris at [100], Barnes (at [78]) and Environment Protection Authority v Causmag Ore Company Pty Ltd [2015] NSWLEC 58 at [123]), an order for costs does not result in a reduction in any monetary penalty imposed to an amount lower than that suggested by the general pattern of sentencing for the relevant offence (Liverpool City Council v Leppington Pastoral [2010] NSWLEC 170 at [50]).
In the present case, while the EPA's professional costs payable by Sydney Water were not, in the absence of agreement as to quantum, able to be quantified, evidence was nevertheless before the Court to indicate that these costs would be sizable, and were likely to be in excess of $100,000 inclusive of GST.

[60]

Totality Principle

Because there are multiple offences arising out of the same conduct, the totality principle applies. In Orica (the Nitric Acid Air Lift Incident) the Court discussed the totality principle and its application at length (at [224]-[229]. More recently, see Water NSW v Barlow [2019] NSWLEC 30 at [111]-[112]). Those principles are relied upon without repetition in these proceedings.
It is therefore appropriate to reduce the penalties for the second water pollution offence and the EPL offence by applying the totality principle.
It was also submitted by Sydney Water, and I accept and take into account, that but for the period of rainfall in between the first and second water pollution offences resulting in the discharge becoming temporarily lawful under the EPL, the first and second offence would have in fact constituted a single continuing offence.

[61]

Appropriate Sentence

Having regard to the objective seriousness of the offence and the mitigating subjective factors of Sydney Water, together with the penalties imposed in the relevant comparable cases, I consider that the appropriate sentence to be imposed for the first water pollution offence is a monetary penalty of $250,000.
Given that I have found that the objective seriousness of the second water pollution offence to be less than that of the first, the appropriate sentence to be imposed for the second water pollution offence is a monetary penalty of $150,000.
Finally, for the EPL offence the appropriate sentence to be imposed on Sydney Water is a monetary penalty of $200,000.
These figures must be discounted by 30% for the utilitarian value of Sydney Water's early plea of guilty and other factors in mitigation as follows: 1. $175,000 for the first water pollution offence; 2. $105,000 for the second water pollution offence; and 3. $140,000 for the EPL offence.
The second water pollution offence and the EPL offence must be further reduced to $52,500 and $42,000 respectively, after the application of the totality principle.
The total monetary penalty imposed on Sydney Water for the commission of the three offences is therefore $269,500.

[62]

Publication Order

Pursuant to s 250(1)(a) of the POEOA the parties have agreed to a publication order being made. The details of the publication order have been agreed and are set out in the orders and in Annexure "A" to this judgment.
Having regard to the circumstances of this case, I find that the making of a publication order is appropriate, including that the commission of the offences and the penalty imposed be publicised on social media (it is, after all, 2019). Initially Sydney Water opposed the extension of the publication order to various social media platforms on the basis that adverse commentary (trolling) could not be controlled or moderated by it. However, as was accepted during the hearing, adequate steps can be taken to prevent any comments from being posted or disseminated further.

[63]

Monetary Penalty Imposed to be Paid to the Bayside Council's Bushland Restoration and Community Access Improvement Project for Sir Joseph Banks Park and the Environmental Trust

The parties have agreed, and I consider it appropriate that, pursuant to s 250(1)(e) of the POEOA a portion of the monetary penalty imposed by the Court is to be paid to Bayside Council for the purposes of the Sir Joseph Banks Park Bushland Restoration and Community Access Improvement Project as described in Annexure "B" to this judgment ("the project").
The EPA has submitted that an order be made that all future public references made by Sydney Water to its contribution to the project, until 12 months after the date the project is completed, are to be accompanied by the statement that: Sydney Water Corporation's contribution to the Sir Joseph Banks Park Bushland Restoration and Community Access Improvement Project is part of a penalty imposed by the Land and Environment Court after Sydney Water Corporation was convicted of two offences against s 120(1) (water pollution) and one offence against s 64(1) (breach of licence condition) of the Protection of the Environment Operations Act 1997 (NSW).
There was no opposition to this course by Sydney Water.
Accordingly, $150,000 of the total monetary penalty imposed on Sydney Water is to be paid to Bayside Council for the purpose of the project in the manner described above.
The parties further submitted that any additional monetary penalty not paid to Bayside Council (that is, the remaining $119,500) should be paid to the Environmental Trust established under the Environmental Trust Act 1998 for general environmental purposes pursuant to s 250(1)(e) of the POEOA. Again, I consider that such an order is appropriate in the circumstances of this case.

[64]

Orders

In conformity with the reasons given above, the Court makes the following orders: In proceedings 174230 of 2018 1. Sydney Water Corporation ("Sydney Water") is convicted of the offence against s 120(1) of the Protection of the Environment Operations Act 1997 ("POEOA") as charged; In proceedings 174255 of 2018 1. Sydney Water is convicted of the offence against s 120(1) of the POEOA as charged; In proceedings 174274 of 2018 1. Sydney Water is convicted of the offence against s 64(1) of the POEOA as charged; In proceedings 174230 of 2018, 174255 of 2018 and 174274 of 2018 1. pursuant to s 250(1)(e) of the POEOA, Sydney Water is to pay the amount of $150,000 to Bayside Council within 28 days of this order for the purposes of the Sir Joseph Banks Park Bushland Restoration and Community Access Improvement Project as described in Annexure "B" to these orders ("the project"); 2. all future public references made by Sydney Water to its contribution to the project, until 12 months after the date the project is completed, are to be accompanied by the following statement: Sydney Water Corporation's contribution to the Sir Joseph Banks Park Bushland Restoration and Community Access Improvement Project is part of a penalty imposed by the Land and Environment Court after Sydney Water Corporation was convicted of two offences against s 120(1) (water pollution) and one offence against s 64(1) (breach of licence condition) of the Protection of the Environment Operations Act 1997 (NSW). 1. pursuant to s 250(1)(e) of the POEOA, Sydney Water is to pay the amount of $119,500 to the Environmental Trust established under the Environmental Trust Act 1998 within 28 days of the date of this order for general environmental purposes; 2. pursuant to s 248(1) of the POEOA, Sydney Water is to pay the Environment Protection Authority's ("EPA") reasonable costs and expenses incurred during the investigation of the offences agreed in the sum of $3,267.60; 3. pursuant to s 257B of the Criminal Procedure Act 1986, Sydney Water is to pay the EPA's professional costs as may be determined under s 257G of that Act; 4. pursuant to s 250(1)(a) of the POEOA, Sydney Water, at its expense, is to: 1. within 28 days of the date of this order, cause a notice of a minimum size of 10 cm x 18 cm to be published within the first five pages of The Sydney Morning Herald, The Daily Telegraph and the Southern Courier, with the text of such notice to be that as set out in Annexure "A" to these orders; and 2. within 42 days of the date of this order, provide to the EPA a copy of the entire page of each of The Sydney Morning Herald, The Daily Telegraph and Southern Courier on which the notice was published in accordance with the order (9)(a) above; 1. pursuant to s 250(1)(a) of the POEOA, Sydney Water is to: 1. within 14 days of the date of this order, publicise the offences and the orders made against it by posting the text of Annexure "A" to these orders on its Facebook wall, together with a hyperlink directly to the Court's judgment as published on the New South Wales Caselaw website and tagging the EPA in the post; 2. within 14 days of the date of this order, publicise the offences and the orders made against it by tweeting the following text from its Twitter account: @SydneyWaterNews prosecuted by @NSW_EPA and convicted of 3 offences involving the discharge of up to approximately 507 million litres of untreated sewage into Mill Stream, Botany in May and June 2017. Ordered to pay $269,500 in penalties: [insert hyperlink to judgment as published on NSW Caselaw website] together with a hyperlink directly to the Court's judgment as published on the New South Wales Caselaw website (as indicated above); and 1. within 21 days of the date of this order, publicise the offences and the orders made against it by posting a photo of Sir Joseph Banks Park on its Instagram account with the following caption: @sydneywater was prosecuted by @NSW_EPA and convicted of 3 offences involving the discharge of up to approximately 507 million litres of untreated sewage into Mill Stream, Botany in May and June 2017. Sydney Water pleaded guilty to 2 offences of water pollution and 1 offence of breaching its environment protection licence. Sydney Water was ordered to pay a total of $269,500 in penalties, including $150,000 to Bayside Council for the Sir Joseph Banks Park (pictured) Bushland Restoration and Community Access Improvement Project. Sydney Water apologises to the community for these untreated sewage discharges and has implemented actions in an effort to prevent recurrence of the circumstances leading to the offences. Sydney Water takes its responsibility to protect the environment and public health very seriously: [insert url to judgment as published on NSW Caselaw website] #sydneywater #sydneyparks #sirjosephbankspark #cleanup #community #botany #botanybay #waterways #foreshorebeach #environment together with a url to the Court's judgment as published on the New South Wales Caselaw website (as indicated above); 1. if the parties identify any practical constraints with the Facebook, Instagram or Twitter platforms in connection with the implementation of order 10 the parties have liberty to restore the proceedings on three days' notice to seek further orders; and 2. the exhibits are to be returned Annexure A (38.0 KB, pdf) Annexure B - 2019 EPA Proposal Sir Joseph Banks Bushland Restoration and Community Access Improvement Project Re (6.32 MB, pdf)

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Amendments 31 March 2022 - Removal of duplicate cases listed on the coversheet and in the Judgment. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 March 2022

Environment Protection Authority v Sydney Water Corporation

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