NSWNSWLEC

Environment Protection Authority v Sydney Water Corporation

[2020] NSWLEC 153

Land and Environment Court (NSW)|2020-10-06|Before: Pain J

View original source

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2020-10-06

Before

Pain J

Catchwords

[2014] NSWLEC 74 Cittadini v The Queen [2009] NSWCCA 302 Dare v Pulham (1982) 148 CLR 658
[1982] HCA 70 Director-General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121
[2009] NSWLEC 137 Einfeld v R (2010) 200 A Crim R 1
[2010] NSWCCA 87 Environment Protection Authority v Baiada Poultry Pty Ltd (2008) 163 LGERA 71

Source

Original judgment source is linked above.

Catchwords

[2014] NSWLEC 74 Cittadini v The Queen [2009] NSWCCA 302 Dare v Pulham (1982) 148 CLR 658[1982] HCA 70 Director-General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121[2009] NSWLEC 137 Einfeld v R (2010) 200 A Crim R 1[2010] NSWCCA 87 Environment Protection Authority v Baiada Poultry Pty Ltd (2008) 163 LGERA 71[2008] NSWLEC 280 Environment Protection Authority v Ecolab (2002) 123 LGERA 269[2014] NSWLEC 103 Environment Protection Authority v Queanbeyan City Council (No 3) (2012) 192 LGERA 415[2012] NSWLEC 220 Environment Protection Authority v Snowy Hydro Ltd (2008) 162 LGERA 273[2006] NSWLEC 419 Environment Protection Authority v Wattke[2009] NSWLEC 1 Garrett v Williams (2006) 160 LGERA 115[2006] NSWLEC 785 Gordon Plath of the Department of Environment and Climate Change v FishGordon Plath of the Department of Environment and Climate Change v Orogen Pty Ltd (2010) 179 LGERA 386[2010] NSWLEC 144 Gregg v The Queen [2020] NSWCCA 245 Hili v The QueenJones v The Queen (2010) 242 CLR 520[2010] HCA 45 Hoare v The Queen (1989) 167 CLR 348[1989] HCA 33 King v The Queen (2012) 245 CLR 588

Judgment (49 paragraphs)

[1]

Environment Protection Authority v Wollondilly Abattoirs Pty Ltd [2019] NSWLEC 72 Garrett v Freeman (No 5) (2009) 164 LGERA 287; [2009] NSWLEC 1 Garrett v Williams (2006) 160 LGERA 115; [2006] NSWLEC 785 Gordon Plath of the Department of Environment and Climate Change v Fish; Gordon Plath of the Department of Environment and Climate Change v Orogen Pty Ltd (2010) 179 LGERA 386; [2010] NSWLEC 144 Gregg v The Queen [2020] NSWCCA 245 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 King v The Queen (2012) 245 CLR 588; [2012] HCA 24 La Fontaine v The Queen (1976) 136 CLR 62; [1976] HCA 52 Nydam v R [1977] VR 430 Pemble v R (1971) 124 CLR 107; [1971] HCA 20 Plath v Vaccount Pty Ltd t/as Tableland Timbers [2011] NSWLEC 202 R v Bateman [1925] All ER Rep 45; (1925) 19 Cr App R 8 R v Crabbe (1985) 156 CLR 464; [1985] HCA 22 R v De Simoni (1981) 147 CLR 383; [1981] HCA 31 R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 R v Moore (2015) 91 NSWLR 276; [2015] NSWCCA 316 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Peel [1971] 1 NSWLR 247 R v Taktak (1988) 14 NSWLR 226 R v Thompson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Visconti [1982] 2 NSWLR 104 Secretary, Department of Planning and Environment v AGL Energy Limited; Secretary, Department of Planning and Environment v AGL Upstream Infrastructure Investments Pty Ltd [2017] NSWLEC 2 Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Category: Sentence Parties: Environment Protection Authority (Prosecutor) Sydney Water Corporation (Defendant) Representation: COUNSEL: G Wright (Prosecutor) I Hemmings SC and S Hall (Defendant)

[2]

SOLICITORS: Environment Protection Authority (Prosecutor) Maddocks (Defendant) File Number(s): 19/231066 and 19/231067

[3]

Judgment

The Defendant Sydney Water Corporation (Sydney Water) has pleaded guilty to two separate offences: 1. an offence against s 64(1) of the Protection of Environment Operations Act 1997 (NSW) (POEO Act), being a failure from about 26 July 2018 to 17 August 2018 (inclusive) to comply with Condition O3.1 of Sydney Water's environment protection licence (EPL) (proceedings 2019/231066) (the Licence Offence); and 2. an offence against s 120(1) of the POEO Act, being pollution of waters between about 29 July 2018 and 30 July 2018 (inclusive) (proceedings 2019/231067) (the Pollution Offence).
Both offences are strict liability offences. A plea of guilty is an admission of all the essential elements of an offence. When sentencing, any matter adverse to a defendant must be proved by a prosecutor beyond reasonable doubt: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27]. Any contested matter relied on by a defendant must be established on the balance of probabilities: R v Olbrich at [27].
The offences arise from the same circumstances. Following the discharge of approximately 64,000 litres of sewage from a maintenance hole into an unnamed creek in the Lane Cove National Park (the National Park) not the subject of a charge, efforts to clean up included limited manual clean-up followed by flushing the sewage with mains water. Pollution of water, the Lane Cove River, resulted from this activity. While the extensive Statement of Agreed Facts (SOAF) set out below reflects agreement about what gave rise to the offences, a key difference in the parties' approaches arises from if and how the initial discharge of a large amount of sewage, which resulted in water pollution in any event, is relevant to the two offences. The word "overflow" generally refers to the initial sewage overflow not the subject of a charge.

[4]

Protection of the Environment Operations Act 1997

Relevant sections of the POEO Act provide: Chapter 1 Preliminary … 3 Objects of Act The objects of this Act are as follows - (a) to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development, (b) to provide increased opportunities for public involvement and participation in environment protection, (c) to ensure that the community has access to relevant and meaningful information about pollution, (d) to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following - (i) pollution prevention and cleaner production, (ii) the reduction to harmless levels of the discharge of substances likely to cause harm to the environment, (iia) the elimination of harmful wastes, (iii) the reduction in the use of materials and the re-use, recovery or recycling of materials, (iv) the making of progressive environmental improvements, including the reduction of pollution at source, (v) the monitoring and reporting of environmental quality on a regular basis, … Chapter 3 Environment protection licences … Part 3.4 Licence conditions … 64 Failure to comply with condition (1) Offence If any condition of a licence is contravened by any person, each holder of the licence is guilty of an offence. Maximum penalty - (a) in the case of a corporation - $1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or (b) in the case of an individual - $250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues. … Chapter 5 Environment protection offences … Part 5.2 Tier 1 offences … 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 any 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. (3) A person may be proceeded against and convicted of an offence under subsection (2) whether or not a person has been proceeded against or convicted of an offence under subsection (1) in respect of the leak, spill or other escape. (4) It is a defence in any proceedings against a person for an offence under this section if the person establishes that the leak, spill or other escape was caused with lawful authority. (5) In this section - container includes anything used for the purpose of storing, transporting or handling the substance concerned. owner of a substance includes, in relation to a substance that has leaked, spilled or otherwise escaped, the person who was the owner of the substance immediately before it leaked, spilled or otherwise escaped. … Part 5.3 Water pollution 120 Prohibition of pollution of waters (1) A person who pollutes any waters is guilty of an offence. … 123 Maximum penalty for water pollution offences A person who is guilty of an offence under this Part is liable, on conviction - (a) in the case of a corporation - to a penalty not exceeding $1,000,000 and, in the case of a continuing offence, to a further penalty not exceeding $120,000 for each day the offence continues, or (b) in the case of an individual - to a penalty not exceeding $250,000 and, in the case of a continuing offence, to a further penalty not exceeding $60,000 for each day the offence continues. … Chapter 8 Criminal and other proceedings … Part 8.2 Proceedings for offences … Division 5 Sentencing 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, (f) the presence of asbestos in the environment. (2) The court may take into consideration other matters that it considers relevant. …

[5]

Summons in Pollution Offence proceedings no 2019/231067

The manner of breach in the summons is specified as follows: c. Manner of breach The Defendant opened a valve in a mains water system at or near 10 Hanover Avenue, North Epping, causing water to flow toward the Pollutant in the Unnamed creek resulting in the Pollutant flowing into the Waters.

[6]

Summons in Licence Offence proceedings no 2019/231066

The manner of breach in the summons is specified as follows: c. Manner of breach The Defendant, in response to a sewage overflow from the reticulation system at a maintenance hole approximately 250 metres north of the intersection of Woodridge Avenue and Malton Road in North Epping in the State of New South Wales, from about 26 July to about 27 July 2018, that harmed or was likely to harm the environment or present a significant public health risk (the Overflow), failed to take all reasonable and feasible actions as soon as practicable to minimise the impact of the Overflow on the environment and public health, in that the Defendant: i. failed to follow its own recommendations for the clean up of the Overflow, including a manual clean up of the area affected by the Overflow (Affected area) followed by washing the Affected area with mains water (Flushing); ii. failed to adequately monitor or check that the manual clean up of sewage in the Affected area was complete before commencing Flushing; iii. commenced Flushing on 29 July 2018 before manual clean up was completed in the Affected area; iv. failed to communicate with its staff involved in the clean up on 30 July 2018 that manual clean up had not been completed in the Affected area; v. continued Flushing on 30 July 2018 without any additional manual clean up occurring in the Affected area on 30 July 2018; and vi. failed to complete manual clean up of the Affected area until about 17 August 2018. As a consequence of which, the impact of the Overflow on the environment and public health was not minimised.

[7]

Statement of Agreed Facts

The parties provided a SOAF with several annexures (marked Ex A). It provided as follows (annexures excluded): Introduction 1. The defendant, Sydney Water Corporation (Sydney Water), has been charged with the following offences which occurred following an overflow of approximately 64,000 litres of sewage from a maintenance hole in Lane Cove National Park, North Epping (the overflow): a. an offence under s 64(1) of the POEO Act, in proceedings 2019/231066, being a failure to comply with condition O3.1 of Sydney Water's environment protection licence from 26 July 2018 to 17 August 2018. This offence relates, in summary, to a failure by Sydney Water to take all reasonable and feasible actions as soon as possible to minimise the impact of the sewage overflow on the environment and public health; b. an offence under s 120(1) of the POEO Act, in proceedings 2019/231067, being pollution of waters between 29 July 2018 to 30 July 2018. This offence relates, in summary, to pollution caused by the opening of a mains water valve, by which untreated sewage was flushed downstream to the Lane Cove River. 2. The relevant factual background, and a description of the conduct engaged in by Sydney Water which led to the commission of the offences, are set out below. The Licence and Premises 3. Sydney Water holds Environment Protection Licence No. 378 (Licence) for the scheduled activity of "sewage treatment". A copy of the Licence, being the version in force from 4 July 2017 to 6 August 2018 is found at Tab 1. A copy of the Licence, being the version in force from 7 August 2018 to 29 November 2018, is found at Tab 2. The licence conditions and definitions relevant to the above offences, including all conditions and definitions quoted below, are identical in these two versions of the Licence. 4. The Licence applies to premises defined as the "Northern Suburbs Sewage Treatment System" which includes the North Head Sewage Treatment Plant at Blue Fish Road in Manly. The premises are defined to include the "reticulation system" owned and operated by Sydney Water that is associated with the sewage treatment plant (together, the Premises). 5. The reticulation system includes the parts of the sewage treatment system that collect and transport untreated sewage to the sewage treatment plant, such as sewer pipes and mains (the Reticulation System). The Reticulation System includes a 225mm diameter sewer main located in the Lane Cover River valley at North Epping. Within the sewer main there are a number of assets comprising sections of pipeline and maintenance holes. Relevantly these assets include asset number 1335738 (the Maintenance Hole) and the section of pipeline immediately downstream of the Maintenance Hole asset number 3659691 (the Pipeline Section). The Maintenance Hole is located approximately 250 metres north of the intersection of Woodridge Avenue and Malton Road in Lane Cove National Park, North Epping. 6. Sydney Water is the occupier of the Premises and is responsible for the operation, inspection, maintenance and repairs of the Premises. 7. Under the Licence the licensed activity of "sewage treatment" means: The operation of sewage treatment systems (including the treatment works, pumping stations, sewage overflow structures and the reticulation system) that involve the discharge or likely discharge of wastes or by-products to land or waters. 8. Condition O3.1 of the Licence provides: O3 Emergency response O3.1 In the event of an overflow from the reticulation system or a bypass from a sewage treatment plant that harms or is likely to harm the environment or present a significant public health risk, the licensee must take all reasonable and feasible actions as soon as practicable to minimise the impact of the overflow or bypass on the environment and public health. For the avoidance of doubt, the requirements of this condition are in addition to any measures required to be implemented in accordance with the Pollution Incident Response Management Plan required to be prepared and implemented under Part 5.7A of the Protection of the Environment Operations Act 1997. The overflow 26 July 2018 to 27 July 2018 and Sydney Water's response 26 July 2018 9. On 26 July 2018, at approximately 7:17pm, Sydney Water received an odour complaint from residents in North Epping near Lane Cove National Park. 10. At approximately 7:36pm, Adam Herd, a Sydney Water network technician, arrived at bushland in North Epping. 11. Mr Herd confirmed that an odour was present but could not locate the source of the odour because of the density of the bushland and lack of light, given that it was after 7:30pm. 12. No further action was taken on 26 July 2018. 27 July 2018 13. On 27 July 2018, at approximately 7:24am, Mr Herd returned to the bushland in North Epping to continue Sydney Water's investigation into the odour complaint. 14. At approximately 7:41am, Mr Herd located evidence of a sewage overflow into the bushland, downhill to a rocky gully and unnamed creek (the unnamed creek) that flows downhill to the Lane Cove River. 15. At approximately 7:50am, Mr Herd located the Maintenance Hole in the bushland, from which sewage was overflowing (the overflow). 16. Maps showing the location of the overflow, the unnamed creek and the Lane Cove River are at Tab 3 and Tab 4. 17. At approximately 8am, Mr Herd reported the overflow and declared it to be an incident by phone to Robert Holmes, a Sydney Water resource coordinator. Mr Holmes subsequently arranged for more Sydney Water staff to travel to the bushland to assist Mr Herd with stopping the overflow. 18. At approximately 8:36am, Sydney Water notified the Environment Protection Authority (the EPA) of the overflow. 19. At approximately 8:53am, a Sydney Water "Field Sampling and Testing" (FST) team arrived at the bushland to conduct an environmental impact assessment. The FST team took six samples of the water in the Lane Cove River at different locations. A member of the FST team observed the overflow continuing to flow into the Lane Cove River at a rate in between a trickle and a gush. 20. At approximately 9am, Mr Herd finished installing: a. a warning sign; and b. a watergate in the unnamed creek, approximately 15m below the overflowing Maintenance Hole. A watergate is a plastic, dam-type gate that can be placed in water to contain flow. 21. At approximately: a. 9:24am, Sydney Water production employees Wayne Richards and Tom Kostis; and b. 10:08am, Sydney Water network technician Gary Dance; arrived at the bushland to assist Mr Herd with stopping the overflow. Mr Dance brought "hand rodding" equipment to use to clear the blockage. 22. Mr Herd, Mr Kostis and Mr Richards determined that the best way to access the overflowing Maintenance Hole was via the rear of 18 Hanover Avenue, North Epping, which is approximately 190m from the Maintenance Hole. 23. Between approximately 10am and 1pm, Mr Dance, Mr Herd, Mr Kostis and Mr Richards attempted to clear the blockage causing the overflow but were unsuccessful. 24. At approximately 1:18pm, Mr Herd left the bushland as he was assigned to other work. 25. At approximately 1:52pm, Mr Dance, Mr Kostis and Mr Richards made a request for urgent bypass installation, because they had were [sic] making no significant progress clearing the blockage causing the overflow. 26. At approximately 2:45pm, Mr Dance left the bushland as he was assigned to other work. 27. At approximately 2:50pm, Mr Kostis and Mr Richards cleared the blockage causing the overflow. 28. No further action was taken on 27 July 2018. The cause and estimated volume and duration of the overflow 29. The overflow was caused by a tree root blockage in the sewer main - in particular in the Pipeline Section. Sydney Water have estimated the overflow occurred for 19 hours and 33 minutes. This estimate assumes the overflow commenced at the time that Sydney Water received the odour complaint. 30. Sydney Water have estimated that approximately 64 kilolitres (kL) of raw untreated sewage was discharged from the Maintenance Hole. Recommendations for clean up of the overflow made by FST team 31. At approximately 1:23pm on 27 July 2018, Matthew Vernon, a member of the FST team sent the following clean-up recommendations to Charles Zammit, a Sydney Water service delivery officer and the "Environmental Response" Sydney Water group email (Environmental Response Group Email): • Fix fault. • Place signage on start of unnamed walking trail in front of 341 Malton road. • Place signage on Browns Waterhole Track on both sides of where the track crosses over Lane Cove River • Place sand bags in Lane Cove River 200m North East of 339A Malton Road. • Place water gate in Lane Cove River 1m downstream of where Browns Waterhole track crosses the River • Manual clean up of bushland affected by surcharge to Lane Cove River including rock face 10m before surcharge reaches Lane Cove River • Broome [sic] substrate rocks in Lane Cove River from surcharge inflow to sand bag location. The pulp removed from the substrate rocks will need to be manually collected and removed from the waterway as there is limited infrastructure in the area to pump out. • Remove sand bags. • Flush from above fault for 2 full day shifts while pumping out at water gate location. • Leave signage and water gate in place until FST have returned to resample water way. (the FST Recommendations) 32. The FST Recommendations were prepared by Mr Vernon after he inspected most of the area affected by the overflow (including the unnamed creek and the Lane Cove River, but not the Maintenance Hole). 33. At approximately 1:52pm, Mr Zammit sent the FST Recommendations to the EPA. 34. At approximately 3:05pm, the Environmental Response Group Email forwarded the FST Recommendations to Sydney Water resources coordinator Craig Dobson. Mr Dobson then forwarded the FST Recommendations to Mr Holmes and Vincenzo Mazzaferro, another Sydney Water employee, at approximately 3:08pm. 35. The order in which the FST Recommendations were written is the order in which they Mr Vernon intended that they be carried out. In particular, Mr Vernon recommended manual clean-up be carried out prior to flushing to avoid the flushing unnecessarily pushing sewage material from the bushland into the waterways. 36. The FST recommendations require "flushing" and "pumping". Flushing is carried out by directing mains water to flow over an affected area. Pumping is carried out by the pump out of liquid using a pumping unit, in this case pumping water out from the water gate location in the Lane Cove River, and discharging it into a nearby maintenance hole in a pipeline. Clean up following the incident 28 July 2018 37. On 28 July 2018, two crews of Sydney Water employees were assigned to carry out clean up of the overflow. 38. At approximately 6:45am, Mr Holmes forwarded the FST Recommendations by email to Peter Langton, a Sydney Water job supervisor who was supervising one of the crews carrying out clean-up. When questioned on 19 March 2019, Mr Langton could not specifically remember receiving this email or if he referred to it when undertaking clean-up activities. However, Mr Langton stated that they work from work orders on their computers, not from emails, when working out what to do at a job. 39. Sydney Water employees working in the field are provided with "Toughbook" computers, on which they can access information about jobs that they have been assigned to, through a program called "Field Resource Management" (FRM).The clean-up of the overflow on 28 July 2018 was assigned to Mr Langton. Certain details about the job (including the address of the job) were sent to Mr Langton's FRM. The FST Recommendations were not available to Mr Langton on his FRM. 40. At approximately 8:10am, Sydney Water production employees Murray Paul and Moape Vosanibola (the first crew) arrived at Woodridge Avenue in North Epping. 41. The first crew installed warning signs at: a. the unnamed walking track in front of 341 Malton Road, North Epping; and b. Browns Waterhole Track on both sides of the pedestrian crossing that crosses over the River. 42. At approximately 9:20am, Sydney Water production employee David Chhean and Mr Langton (the second crew) arrived in North Epping and began searching for the location of the overflow. 43. At approximately 12pm, the first crew finished installing a watergate and pumping unit at Browns Waterhole in the Lane Cove River, approximately 2 kilometres downstream from the Maintenance Hole. The pumping unit was turned on. 44. At approximately 3pm, the second crew reached the unnamed creek where the overflow had occurred. A team of Sydney Water contractors from lnterflow (lnterflow) were also at the unnamed creek. The presence of lnterflow at the unnamed creek confused the second crew so they thought that the overflow that they had been assigned to clean up was located elsewhere. They left the unnamed creek and continued to look for the site of the overflow, not realising that they had been at the correct location. The second crew then returned to the unnamed creek and realised that it was the site of the overflow that they had been assigned to clean up. 45. At approximately 4pm, Mr Chhean, Mr Paul and Mr Vosanibola finished installing sandbags in the unnamed creek, approximately ten metres from the confluence of the unnamed creek and the Lane Cove River. 46. While the others were installing sandbags, Mr Langton tried to locate a suitable hydrant from which to flush the unnamed creek. He could not locate a suitable hydrant, so flushing was not carried out. 47. Before leaving the area for the day, Mr Langton told Mr Paul that he had not been able to find a suitable hydrant and suggested that Mr Paul, who would be working on the job the next day, contact a Sydney Water network technician for assistance in finding one. Mr Langton also told Mr Paul that the area affected by the overflow needed cleaning, as no manual clean-up had been completed that day. Mr Langton did not provide any other details about the required clean up to Mr Paul. 48. No manual clean up took place on 28 July 2018. 49. At approximately 5pm, the second crew left and turned off the pumping unit at Browns Waterhole. 50. At approximately 6pm, the first crew left. 29 July 2018, including the flushing of sewage the subject of the water pollution charge 51. On 29 July 2018, a crew of Sydney Water employees was assigned to carry out clean up of the overflow. The crew consisted of Mr Paul and Mr Vosanibola. 52. Mr Paul and Mr Vosanibola were both members of Sydney Water's "civil projects" team. The civil projects team do not normally perform clean-up works such as responding to a sewage overflow. The civil projects team do not receive the same training in responding to sewage overflows as other Sydney Water teams. 53. At approximately 6:59am, the crew arrived in North Epping. 54. The crew installed a pumping unit at Browns Waterhole. Pumping from this pumping unit occurred from approximately 8:30am until approximately 4pm. 55. At approximately 8:31am, Jeffery Lane, a Sydney Water network technician, opened a valve on a sewer main located at 10 Hanover Avenue, North Epping (the Valve). The Valve was opened so that water would flow from the mains water system into the storm water system toward Lane Cove National Park. The water would then flow from the storm water system and down the unnamed creek, "flushing" part of the area affected by the overflow. 56. The map at Tab 4 shows the approximate path of the flushing. 57. The Valve was opened at approximately 8:31am, but the flow of the water was slow, such that water did not flow down the unnamed creek until approximately midday. 58. Between 8:30am and 10am, the crew broomed the rocks in the unnamed creek, between the watergate and the sandbags that had been installed the day before. 59. Between 3pm and 4pm, the crew turned off the pumping unit at Browns Waterhole. 60. At approximately 4pm, the crew closed the Valve and left the area. 61. On 29 July 2018: a six bags of waste material were collected and removed from the unnamed creek; and b. four bags of waste were collected and removed from the area around the Maintenance Hole where the overflow occurred. 62. Thus, a total of 10 bags were removed from the area at the end of the day and taken to Sydney Water's facility in North Ryde for disposal. 63 On 29 July 2018 the FST recommendations were not properly followed by the crew, because flushing took place before adequate manual clean up was carried out. 64 Mr Paul considered the manual clean up was "too big a job" and they ran out of time to continue with the manual clean up before mains water started flowing down the unnamed creek. Mr Paul: a. did not consider himself to be the designated supervisor at the site of the overflow on 29 July 2018; b. was not aware of any instructions as to the manual clean up being completed prior to flushing commencing; c. understood pumping and flushing to be a reference to setting up with watergate and pumping rather than flushing referring to the release of water over an affected area; d. had not previously seen flushing of a creek; e. had never received any training in responding to sewage overflows; f. was not familiar with the meaning of the term "FST recommendations"; g. did not see the FST recommendations; h. did not know how to access the work order information and relied on information on his FRM; i. did not know how much manual clean up to do at the site of the overflow; j. did not receive any instructions regarding completing manual clean up before flushing; k. had never done a manual clean up in combination with flushing before; and l had never done a manual clean up of a sewage overflow before. 65. Mr Vosanibola considered they needed more people to complete the manual clean up on 29 July 2018. Mr Vosanibola: a. had not received any training in responding to sewage overflows; b. had never been asked to complete FST recommendations before; c. did not see the FST recommendations; and d. was not aware the manual clean up should be completed prior to flushing. 66. The crew did not inform the Resources Coordinator that the manual clean up was not completed at the end of the day. 67. The crew did not make a record of their observations of: a. the area around the maintenance hole that overflowed; b. the unnamed creek; or c. the Lane Cove River, before or after the flushing and pumping took place on 29 July 2018. 30 July 2018, including the flushing of sewage the subject of the water pollution charge 68. On 30 July 2018, a crew of Sydney Water employees was assigned to carry out clean up of the overflow. The crew consisted of Jason Salt and Colin Gleadhill, both Sydney Water production employees. 69. At approximately 7:41am, the crew arrived at North Epping. The crew experienced difficulty locating and accessing the pumping unit at Browns Waterhole, and did not turn on the pumping unit until approximately 10am. 70. At approximately 9:20am, EPA officers George Orel and Adam Wethered arrived at Malton Road in North Epping to carry out an inspection of the area affected by the overflow. 71. Mr Orel and Mr Wethered located the unnamed creek. In the unnamed creek, there was: a. thick grey sewage pulp in numerous rockpools; b. sewage material caught in depressions and crevasses; c. a few empty hessian bags, approximately 20m upstream from the Lane Cove River; and d. a watergate, approximately 40-50m upstream from the Lane Cove River. There was also a strong ambient sewage odour along the length of the unnamed creek. 72. Photographs of the unnamed creek on 30 July 2018, before the 30 July 2018 flushing commenced, are at Tab 5. 73. Mr Orel and Mr Wethered walked uphill to the end of the unnamed creek and reached the Maintenance Hole that had overflowed, which was about 20m uphill from the end of the unnamed creek. The area downhill between the Maintenance Hole and the start of the unnamed creek, was covered in dark, boggy sewage material and smelled strongly of sewage. This material covered a space that was approximately 20 metres long and 5 metres wide. 74 Photographs of the area downhill between the Maintenance Hole and the unnamed creek at 30 July 2018 are at Tab 6. 75 At approximately 10am, the crew turned the pumping unit at Browns Waterhole on. At some point in time in the morning the crew opened the Valve and then returned to Browns Waterhole. 76. As a result of the opened Valve, at approximately 10am mains water began flushing down the unnamed creek. Solid sewage material, that was in the unnamed creek from the overflow, was flushed down the creek and into the Lane Cove River as a result of the flushing. 77. Photograph and video of the flushing in the unnamed creek on 30 July 2018 are at Tab 7. 78. Mr Wethered and Mr Orel were at the confluence of the unnamed creek and the Lane Cove River as the water from the flushing travelled down the unnamed creek. A grey slurry of sewage affected water cascaded down the unnamed creek and into the Lane Cove River. 79. Mr Wethered took samples of the water in: a. the unnamed creek, at approximately 10am (before the 30 July 2018 flushing reached the sampling location); b. the Lane Cove River, at approximately 10:20am and 11:35am (before the 30 July 2018 flushing reached the sampling locations), for the purposes of nutrient analyses and ecotoxicology testing. 80. At approximately 11am, Mr Orel and Mr Wethered arrived at Browns Waterhole. The pump was not containing the flow in the Lane Cove River, and water was passing the containment at Browns Waterhole. 81. Photographs of the containment at Browns Waterhole, Lane Cove River, on 30 July 2018 are at Tab 8. 82. At approximately 11:12am, Mr Orel and Mr Wethered had a conversation with Mr Salt. Mr Orel told Mr Salt that he considered that Sydney Water should obtain a second pumping unit in addition to the one already operating, to pump out all the sewage that was to be flushed out of the area affected by the overflow. Mr Salt agreed. 83. Between 11:30am and 12:10pm, Mr Orel and Mr Wethered walked back along the Lane Cove River in an upstream direction, towards the unnamed creek. By this stage, the Lane Cove River had turned a uniform dark grey colour, had an oily film on the surface and was highly turbid. 84. A photograph of the Lane Cove River on 30 July 2018, after the flushing, is at Tab 9. 85. At approximately 12:10pm, Mr Orel and Mr Wethered arrived at the unnamed creek. A steady flow of flush, transporting a grey, odorous solution of sewage and water, was flowing through the unnamed creek. The watergate in the upper reaches of the unnamed creek did not effectively contain the flow of the flush, as the sewage and water solution passed around the side of the watergate. 86. A photograph of the water gate in the unnamed creek during flushing on 30 July 2018 is at Tab 10. 87. Mr Orel and Mr Wethered observed that sewage material had been flushed out of the unnamed creek. In particular Mr Orel observed that a significant amount of sewage pulp had been dislodged and Mr Wethered observed that a majority of the thick sewage solids had been flushed out of the unnamed creek since their observations at 10am. Pockets of sewage pulp remained in low flow sections of the unnamed creek. Mr Orel and Mr Wethered were at an early stage of their investigation and did not complain about the flushing nor request or direct that the flushing should cease at this time. 88. At approximately 12:30pm, the second pumping unit was installed at Browns Waterhole. 89. At approximately 2:40pm, the crew stopped flushing and pumping, removed the two pumping units from Browns Waterhole, closed the Valve and left the area. The watergate at Browns Waterhole and warning signs were left in place. 90. There was no manual clean up on 30 July 2018. Mr Salt was not informed that manual clean up was not complete, and he assumed the manual clean up had been completed on the previous day, on 29 July 2018. The crew did not attend the Maintenance Hole or the unnamed creek to check the progress of the clean up. 91. At approximately 2:41pm, Mr Dobson issued a pager alert communicating that clean up work was complete and requesting that a Sydney Water field supervisor attend the area to assess the quality of the clean-up work. The pager message stated "clean up complete as per FST recommendations". 92. On 30 July 2018 the FST recommendations were not followed by the crew, because flushing continued without adequate manual clean up being carried out. 93. The crew did not make a record of any observations of: a the area around the maintenance hole that overflowed; b the unnamed creek; or c the Lane Cove River, d before or after the flushing and pumping took place on 30 July 2018. 31 July 2018 94. On 31 July 2018, at approximately 12:01pm, Sydney Water employee Hannah Lockie sent an email to Mr Wethered stating that the flush and pump had been carried out as recommended and that manual clean-up had been done around the Maintenance Hole. Ms Lockie also stated that a Sydney Water Field Supervisor would inspect the area affected by the overflow to assess the quality of the work done. 95. At approximately 1:10pm, EPA officers Benn Treharne and Mr Wethered arrived at Browns Waterhole to carry out an inspection. Water was passing around and beneath the watergate at Browns Waterhole. 96. Mr Treharne and Mr Wethered walked along the Lane Cove River in an upstream direction. 97. At approximately 2:15pm, Mr Treharne and Mr Wethered arrived at the unnamed creek. There was no flushing occurring in the unnamed creek at this time, but a strong sewage odour was present along the length of it. Grey sewage pulp and staining was visible in the rockpools in the unnamed creek. 98. A photograph of a rockpool in the unnamed creek on 31 July 2018 is at Tab 11. 99. Mr Treharne and Mr Wethered walked uphill to the Maintenance Hole. The area between the Maintenance Hole downhill to the start of the unnamed creek remained covered in sewage solids, sewage pulp and rags and smelled strongly of sewage. The material still covered an area 5 metres in width and 20 metres in length. No manual clean up had occurred in this location since Mr Orel and Mr Wethered inspected the area the day before, 30 July 2018. 100. Photographs of the bushland downhill of the Maintenance Hole on 31 July 2018 are at Tab 12. 101. Mr Treharne and Mr Wethered took samples of the water in: a. the unnamed creek, at approximately 2:20pm and 2:35pm; b. the Lane Cove River, at approximately 2:45pm, 3:20pm, 3:30pm and 3:35pm, for the purposes of nutrient analyses and ecotoxicology testing. 102. At the time that Mr Wethered was taking samples of the Lane Cove River, the water appeared very grey and grey material had settled on the substrate of the River. 103. A photograph of the substrate of the Lane Cove River on 31 July 2018 is at Tab 13. 104. At approximately 3:50pm, Mr Treharne and Mr Wethered left the area. 105. At approximately 5:22pm, EPA unit head Sarah Thomson sent an email to Ms Lockie, requesting that Sydney Water return to the area affected by the overflow to carry out further clean-up, based on the observations made by EPA officers on 30 July 2018 and 31 July 2018. 1 August 2018 106. On 1 August 2018, Emma Cooper, a Sydney Water area manager and Khodr Ghantous, a Sydney Water field supervisor, attended the area affected by the overflow to assess the quality of the clean-up that had been carried out. Ms Cooper and Mr Ghantous considered that further clean-up of the area affected by the overflow was required. 107. On 1 August 2018, a crew of Sydney Water employees arrived at the area affected by the overflow to carry out manual clean-up. The crew consisted of Sydney Water production employees Kyle Wheway, Mohamad Yaghi and Paul Davakis. Manual clean-up was to be done by placing sewage solids from around the Maintenance Hole that overflowed and from the unnamed creek in to bags and removing them from the area. 108. The crew collected approximately 40 bags of sewage material from the area affected by the overflow. 2 August 2018 109. On 2 August 2018, a crew of Sydney Water employees continued manual clean up of the area affected by the overflow. 110. At approximately 9:23am, during clean-up activities the crew on site advised that a second overflow was occurring on the same 225mm sewer approximately 180 metres downstream. The blockage was cleared at 2:00pm. 111. The FST team took six samples of the water in the Lane Cove River at different locations. 112. At approximately 3:10pm, Ms Lockie sent an email to Ms Thomson, in which she reported that solid sewage material in the gully leading down to the Lane Cove River had been placed into bags and that additional containment would be installed in the unnamed creek prior to any further flushing. 3 August 2018 113. On 3 August 2018, a crew of Sydney Water employees continued to carry out clean up activities and a pumping unit was installed at the watergate at Browns Waterhole. 114. At approximately 10am, the unnamed creek was flushed again. Prior to flushing: a. the watergate in the unnamed creek was removed; and b. silt fencing was installed at the bottom of the unnamed creek to capture any solids during flushing. 115. From approximately 1:53pm to approximately 7:35pm, water from the Lane Cove River was pumped out via the pumping unit at Browns Waterhole. 4 August 2018 116. Flushing and pumping continued on 4 August 2018. 5 August 2018 117. On 5 August 2018, the FST team took four samples of the water in the Lane Cove River at different locations. 118. The FST team also issued further recommendations for clean up on 5 August 2018: Place additional sandbags at inlets upstream of Lane Cover River crossing at Browns Waterhole Track. Pump and flush from above fault whilst pumping out at containment location as per original recommendations. Continue flush and pump until FST resample at containment location. If safe to do so, broom substrate rocks from lane Cove River from original surcharge inflow to containment location. FST to aim to resample after 2 days of flushing has been completed. 6 August 2018 119. Flushing and pumping continued on 6 August 2018. 7 August 2018 120. On 7 August 2018, a crew of Sydney Water employees continued manual clean-up of the area affected by the overflow. The crew consisted of Sydney Water production employees Patrick Mataele, Jae Pengkerego and Ahmad Yehia. 121. The crew collected approximately 30 bags of sewage material from the area affected by the overflow. These 30 bags, along with the 40 bags collected on 1 August 2018, were removed from the area. 122. Flushing and pumping continued on 7 August 2018. 123. At approximately 3:50pm, the watergate and pumping unit at Browns Waterhole were removed, because National Parks and Wildlife Services (NPWS) was intending to carry out hazard reduction burning in the area on 8 August 2018. 13 August 2018 124. On 13 August 2018, the FST team took four samples of the water in the Lane Cove River at different locations. 125. At approximately 12:30pm, EPA officers Mr Treharne and Mr Wethered arrived at the bushland in North Epping where the overflow had occurred. 126. Four half-filled bags of leaf litter and rags were positioned adjacent to the Maintenance Hole. There were also rags, wet wipes and damp sewage solids around the Maintenance Hole and downhill towards the top of the unnamed creek. This material smelled strongly of sewage when disturbed. 127. Photographs of the bushland downhill from the Maintenance Hole on 13 August 2018 are at Tab 14. 128. The water in the rockpools in the unnamed creek was turbid, had an oily surface film and emitted a sewage odour. A few areas of bushland appeared to have been raked. 129. The water in the Lane Cove River was relatively clear near the confluence with the unnamed creek, however the substrate was covered in grey pulp and pieces of this grey pulp were floating in the Lane Cove River. 130. A photograph of the substrate of the Lane Cove River on 13 August 2018 is at Tab 15. 131. The substrate of the River further upstream of the confluence with the unnamed creek was brown and not covered in grey pulp. 132. Mr Treharne took samples of: a. the sewage pulp adjacent to the Maintenance Hole that overflowed, at approximately 1pm; b. the water in the unnamed creek, at approximately 1:30pm and 1:35pm; and c. the water in the River, at approximately 1:45pm, 1:55pm, 2:15pm and 2:40pm. 133. Mr Treharne and Mr Wethered arrived at Browns Waterhole. A watergate had been installed upstream of the pedestrian crossing over the Lane Cove River and sandbags had been placed in front of the drain pipes under the crossing. A wide pool of liquid, approximately 4 to 5 metres in diameter, with a green, scummy layer on top, was in front of the sandbags. 134. There were no Sydney Water staff or vehicles at Browns Waterhole, but a Sydney Water warning sign was in place. 135. At approximately 3:05pm, Mr Treharne and Mr Wethered left the area. 14 August 2018 136. On 14 August 2018, at approximately 12:03pm, Sydney Water senior analyst Bala Selvananthan forwarded an email from Sydney Water service delivery officer Don Atkins to Mr Treharne. The email stated that clean-up of the unnamed creek was complete. 15 August 2018 137. On 15 August 2018, at approximately 9:30am, Ms Thomson and Mr Wethered attended the area in which the overflow occurred to conduct an inspection. Ms Thomson and Mr Wethered met With Mr Atkins and Ms Cooper. 138. The four half-filled bags of leaf litter and rags that had been observed by Mr Treharne and Mr Wethered on 13 August 2018 were still adjacent to the Maintenance Hole. Damp sewage material, consisting of raw faeces and rags, was around the Maintenance Hole and the area below the Maintenance Hole, downhill to the top of the unnamed creek. 139. Mr Atkins, Ms Cooper, Ms Thomson and Mr Wethered had a conversation, in which it was agreed that further manual clean-up of the bushland affected by the overflow was required and that NPWS should be consulted as to how this should be carried out. 140. The water in the rockpools in the unnamed creek was still discoloured with an oily film on the surface. 141. At approximately 1pm, Ms Cooper and Mr Atkins met with representatives from NPWS. Ms Cooper, Mr Atkins and NPWS representatives agreed that: a. all solid material (including sewage pulp and solids) in the bushland affected by the overflow should be placed in to bags and removed from the area; b. long term weed control in the bushland affected by the overflow would contribute to the effective rehabilitation of the area; and c. the rockpools in the unnamed creek affected by the overflow should be cleaned by pumping out liquid and removing sludge. 16 August 2018 142. On 16 August 2018, a crew of Sydney Water employees continued manual clean-up of the area affected by the overflow. The crew consisted of Sydney Water production employees Kurtis Tawa and Trifun Blazeski and six Sydney Water trainees. 143. The crew collected approximately 60 bags of sewage material from the area between the Maintenance Hole that overflowed and the unnamed creek. These bags were removed from the area. 144. The rockpools in the lower section of the unnamed creek were pumped twice. 17 August 2018 145. On 17 August 2018, a crew of Sydney Water employees continued manual clean up of the area affected by the overflow. 146. The crew collected approximately 10 bags of sewage material from the area around the Maintenance Hole that overflowed and from within the unnamed creek. 147. The rockpools in the unnamed creek were emptied multiple times and the sludge and leaf litter was removed. 148. Material captured by the silt fences at the confluence of the unnamed creek and the Lane Cove River was removed, as were the silt fences themselves. 20 August 2018 149. On 20 August 2018, at approximately 11:48am, Mr Selvananthan sent an email to Ms Thomson, forwarding an email from Mr Atkins. In that email, Mr Atkins stated that clean up of the overflow was complete. 29 August 2018 150. On 29 August 2018, at approximately 10:30am, Mr Orel and Mr Wethered attended the area in which the overflow occurred with Rochelle Irwin, a NPWS employee. 151. Damp leaf litter remained around the Maintenance Hole. An ambient sewage odour was present around the Maintenance Hole and the unnamed creek. Some of the rockpools in the unnamed creek appeared to be discoloured. 152. The water in the Lane Cove River was clear, but there was greyish black sewage material on the substrate, near the confluence with the unnamed creek. Upstream of the confluence with the unnamed creek, the substrate of the River consisted of sandy gravel. 153. Mr Orel and Mr Wethered took samples of: a. the water in the unnamed creek, at approximately 11:50am and approximately 12:20pm; b. the material on the substrate of the Lane Cove River, at approximately 12:10pm; and c. the water in the Lane Cove River, upstream of the confluence with the unnamed creek, at approximately 12:20pm. 13 November 2018 154. On 13 November 2018, EPA operations officer Shelley Nancarrow, EPA specialist investigator Mark Rutherford, EPA senior legal officer Ellen Chapple and Mr Wethered attended the area in which the overflow occurred. 155. Ms Nancarrow and Mr Wethered observed there were bright green weeds growing below the maintenance hole that overflowed, down to the unnamed creek along the path that had been affected by the overflow. The bushland either side of the overflow path was dry, covered with leaf litter and did not have any weeds growing from the ground. 156. A photograph of the bushland downhill of the maintenance hole on 13 November 2018 is at Tab 16. Summary of the breach of Licence Condition O3.1 from 26 July 2018 to 17 August 2018 157. The overflow was an overflow from the reticulation system. The overflow was likely to harm the environment or present a significant public health risk. The overflow did in fact harm the environment and in the opinion of Dr Chandra the overflow presented a public health risk and the severity of the harm was likely to be high. 158. The FST recommendations issued by Sydney Water's FST team were reasonable and feasible actions that Sydney Water could have taken to minimise the impact of the overflow on the environment and public health. 159. Sydney Water did not take all reasonable and feasible actions as soon as practicable to minimise the impact of the overflow in that Sydney Water: a. did not follow the FST recommendations, including by not adequately carrying out manual clean up of the area affected by the overflow before flushing on 29 July 2018 and 30 July 2018; and b. did not adequately carry out manual clean up of the unnamed creek and bushland downhill of the Maintenance Hole until about 17 August 2019 [sic]. Environmental harm 160. The overflow caused actual harm to the environment and posed a risk to human health. 161. The overflow caused harm to the bushland downhill of the Maintenance Hole, the unnamed creek, and the Lane Cove River. 162. The flushing of the unnamed creek would have had the effect of transferring additional sewage material into the Lane Cove River exacerbating the effects of the overflow. 163. The lack of a thorough manual clean up prior to the use of flushing meant that the potential to minimise the impacts of the overflow did not occur. 164. The sampling data indicates that the impacts extended to more than 2.4km into Lane Cove River in a downstream direction from the incident. 165. The sampling data from the Lane Cove River and the unnamed creek on 29 August 2018, the final day sampling took place, is summarised in table C6 to Dr Chandra's report and attached at Tab 17. The table indicates in red where levels exceeded the applicable guideline values and in black where the levels did not exceed the applicable guideline values. Prior Convictions 166. On 16 July 2019 Sydney Water was convicted of two offences against s 120 of the POEO Act and an offence against s 64(1) of the POEO Act in respect of the Licence with respect to an incident at the Southern & Western Suburbs Ocean Outfall Sewer in Mill Stream, Botany (Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100). Sydney Water was ordered to: a. pay $150,000 to Bayside Council for a bushland restoration and community access improvement project; b. pay $119,500 to the Environmental Trust; c. pay the EPA's investigation costs of $3,267.60 and the EPA's legal costs as agreed or assessed; d. place and pay for publication notices in three newspapers and on Sydney Water's Facebook, Twitter and lnstagram. 167. On 21 April 2015, Sydney Water was convicted of an offence against s 120 of the POEO Act and an offence against s 64(1) of the POEO Act in respect of the Licence with respect to an incident at the Malabar WWTP (Environment Protection Authority v Sydney Water Corporation [2015] NSWLEC 80). Sydney Water was ordered to: a. pay $102,500 to the NSW Environmental Trust; b. pay $55,000 to Randwick City Council to carry out a project to improve the quality of stormwater discharges to beaches in the Randwick local government area; c. pay the EPA's legal costs; and d. place and pay for a publication notice in The Sydney Morning Herald and The Southern Courier. 168. 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). Sydney Water was ordered to pay a fine of $40,000 plus the EPA's legal costs. 169. 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 1970, in the course of the operation of its West Camden Sewerage Treatment Plant, occurring on 22-23 October 1998 (Environment Protection Authority v Sydney Water Corporation [2000] NSWLEC 80). About 7,000-8,000 litres of aluminium sulphate was discharged into a tributary of a creek. Sydney Water was ordered to pay a fine of $30,000 plus the EPA's legal costs. 170. On 12 November 1998, Sydney Water was convicted of an offence against clause 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. On 19 March 1999, Sydney Water was ordered to pay a fine of $100,000 plus the EPA's legal costs. Enforceable undertakings accepted by the EPA 171. The EPA has accepted enforceable undertakings from Sydney Water pursuant to s 253A of the POEO Act on two occasions in respect of alleged breaches of the POEO Act relating to the sewage treatment system the subject of the Licence. a. on 6 June 2016: in respect of alleged breaches of ss 120 and 64(1) of the POEO Act relating to an overflow of approximately 372,000 litres of sewage into the Parramatta River at Rydalmere on 13 June 2015, Sydney Water undertook to pay $200,000 to Parramatta City Council to fund environmental projects, pay the EPA's legal and investigation costs in relation to the incident, expand its asset condition maintenance program and upgrade and improve training procedures, and publish a statement in respect of the incident in The Sydney Morning Herald and Daily Telegraph; and b. on 21 November 2014: in respect of an overflow on 22 to 24 November 2013 of approximately 153ML of sewage from the Glenfield Water Recycling Plant into the Bunbury Curran Creek which flows into the Georges River, Sydney Water undertook to pay $200,000 to fund two stormwater pollution reduction projects, pay the EPA's legal costs in relation to the incident, implement a pollution reduction program and publish a statement in respect of the incident in three newspapers. 172. On 19 March 2018, the EPA accepted an enforceable undertaking from Sydney Water pursuant to s 253A of the POEO Act in respect of alleged breaches of ss 120 and 64(1) of the POEO Act relating to sewage discharges from the Northern Suburbs Sewage Treatment System, the subject of environment protection licence 378 on 19 and 20 March 2017. Sydney Water undertook to pay $200,000 to fund environmental projects in the Middle Harbour area, pay the EPA's legal and investigation costs in relation to the incident, review and revise internal protocols and publish a statement in respect of the incident in three newspapers.

[8]

Prosecutor

The Prosecutor read the affidavit of Dr Anand Chandra, affirmed 10 July 2019. Dr Chandra is a lead consultant with Ramboll Australia Pty Ltd. At the time of the overflow incident he was a senior scientist in the Contaminants and Risk team of the Environment Protection Science Branch of the Science Division of the Office of Environment and Heritage (OEH). Annexed to the affidavit was Dr Chandra's expert report (the First Expert Report) dated 10 July 2019 (marked Ex B). The Prosecutor submitted that the First Expert Report was relevant to the Licence Offence as it dealt with the overflow and its consequences.
The First Expert Report was prepared at the request of the Environment Protection Authority (EPA) on 3 March 2019. The brief was to prepare an expert report in relation to the overflow of approximately 64,000 litres of raw untreated sewage from a sewerage maintenance hole located in bushland in the National Park. The summary states, with regard to the overflow incident, that there would have been "potential acute harm to ecological receptors within the unnamed creek and Lane Cove River". Turning in more detail to the degree and extent of the impact on the environment, Dr Chandra writes that by the time the EPA sampling commenced four days after the overflow incident started, ammonia and enterococci were found to be elevated well above the background within the Lane Cove River. These elevated levels were found more than 1.1 km downstream from the overflow incident. Sampling undertaken by Sydney Water one day after the overflow incident showed enterococci concentrations well above the background 2.4 km downstream. Dr Chandra concludes that impacts within the Lane Cove River extended beyond 2.4 km, impacts within the unnamed creek lasted for more than 34 days, and the extent of impacts would gradually decrease with time and distance from the incident.
Turning to the manual clean-up of affected bushland and the unnamed creek, Dr Chandra states that flushing of the unnamed creek prior to a manual clean-up would have transferred additional sewage material into the Lane Cover River and exacerbated toxic effects associated with contaminant concentrations, high suspended solids and high organic material. It would also have transferred additional loads of pathogenic organisms into the waters of the Lane Cove River, increasing the risk of contracting diseases related to enteric pathogenic organisms for recreational users. It would have been precautionary to undertake a thorough manual clean-up of the land and the unnamed creek to minimise ecological and public health impacts, instead of flushing contaminant loads into the Lane Cove River.

[9]

Sydney Water

Sydney Water read the affidavit of Ms Emanuela Cooper affirmed 21 August 2020. Annexures to the affidavit were: (i) asset map (Annexure A); (ii) photographs of the overflow location (Annexure B); (iii) topographical map (Annexure C); (iv) revised work instructions regarding clean-up (Annexure D); and (v) revised work instructions titled "Clear Choke Using Jetter Truck" (Annexure E).
Ms Cooper is the head of Network Regional Operations and Maintenance at Sydney Water. In that role, she is responsible for the teams within Sydney Water that operate and maintain the water, wastewater, recycled water and stormwater networks including ensuring network assets are fit for purpose and operate properly, ensuring contingency plans are in place to respond to faults, providing expertise for complex network operations, and providing repair and response capability for faults.
At the time of the overflow, Ms Cooper held the role of Area Manager, North. She was the "Incident Owner" meaning she had responsibility to ensure the findings and lessons were captured and implemented. The pipeline relevant to the overflow incident sits within a large sewer network consisting of approximately 24,850 km of pipes and tunnels across 24 licenced sewerage systems, through which Sydney Water collects and treats over 469,000 million litres of wastewater a year to provide wastewater services to about 4.64 million people.
The pipeline where the overflow occurred fits into a sewer system with a tree-like layout. Each house connects to a small reticulation sewer located within or adjacent to the property which joins up with larger reticulation sewers which then connect to sewers that are larger again. The overflow occurred in a 225 mm reticulation sewer. The pipeline was underground and located in a bushland area with difficult topography.
One of the difficulties with managing these assets is that tree roots can enter the pipelines and cause blockages referred to as "chokes". Chokes can cause overflows. Chokes are more common in dry weather because tree roots seek out the moisture along the buried pipelines. As at July 2018 there had been an extended period of drought conditions in Sydney resulting in more chokes and resultant greater demand on response crews. In the 12 months leading up to the overflow, there had been 5,870 chokes investigated and response crews mobilised in response to a number of incidents.

[10]

Sydney Water - EPL No 378

Relevant conditions of the Sydney Water's EPL provide: 1 Administrative Conditions A2 Premises or plant to which this licence applies … A2.2 The premises also includes the reticulation system owned and operated by the licensee that is associated with the sewage treatment plant(s) identified in condition A2.1. … 3 Limit Conditions L1 Pollution of water L1.1 Except as may be expressly provided in any other condition of this licence, the licensee must comply with section 120 of the Protection of the Environment Operations Act 1997. … L1.3 Notwithstanding the provisions of the condition above, this licence does not permit the pollution of waters at any time during dry weather from: a) uncontrolled overflows, or b) directed overflows other than from sewage pumping stations, if a cause of the pollution is failure to: i) operate any part of the reticulation system in a proper and efficient manner; or ii) maintain any part of the reticulation system in a proper and efficient condition. … L7 Other limit conditions … L7.2 Wet weather overflow limits Not applicable. … L7.4 Dry weather overflow limits The total number of dry weather overflows reaching waterways from the sewage treatment system subject to this licence must not exceed 142 in any reporting period. …. O Operating Conditions … O3 Emergency response O3.1 In the event of an overflow from the reticulation system or a bypass from a sewage treatment plant that harms or is likely to harm the environment or present a significant public health risk, the licensee must take all reasonable and feasible actions as soon as practicable to minimise the impact of the overflow or bypass on the environment and public health. For the avoidance of doubt, the requirements of this condition are in addition to any measures required to be implemented in accordance with the Pollution Incident Response Management Plan required to be prepared and implemented under Part 5.7A of the Protection of the Environment Operations Act 1997. … O4 Processes and management … O4.7 Level of reticulation system management, operations and maintenance activities The reticulation system must be managed, operated and maintained such that the operational and maintenance works and activities result in ongoing improvement in the system environmental performance, when compared with existing system environmental performance. The system environmental performance must not at any time fall below existing system environmental performance. O4.8 For the purposes of determining whether the system environmental performance has fallen below existing system environmental performance: a) in relation to chokes, the licensee is to compare the average number of chokes per year per 100km of pipe in the reticulation system of all of the licensee's sewage treatment systems averaged over the period 1 July 1995 to 30 June 2000 to the average annual number of chokes averaged over all of the licensee's sewage treatment systems over the reporting period and the preceding four twelve month periods; b) in relation to odour complaints, the licensee is to compare the number of odour complaints from the reticulation system per year averaged over the period 1 July 1995 to 30 June 2000 to the average annual number of odour complaints over the reporting period and the preceding four twelve month periods; c) in relation to wet weather overflows, the licensee is to compare the number of wet weather overflows per 10 years as predicted by the hydraulic sewer system model for 1994 to the number of wet weather overflows per 10 years as predicted by the hydraulic sewer system model for the reporting period. This comparison must use the 10 year rainfall time series data in each model. …

[11]

Purposes of sentencing

Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) states: Part 1 Preliminary … 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, … (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.
The sentence must reflect all the relevant objective circumstances of the offence and subjective circumstances of a defendant: Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 at 490 (Jacobs J) and Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 (Veen (No 2)) at 472-73 (Mason CJ, Brennan, Dawson and Toohey JJ), 490-91 (Deane J). The sentence should not exceed what is justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances: Veen (No 2) at 472, 485-86, 490-91, 496 and Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ).

[12]

Objective seriousness

A number of factors should be considered in determining the objective seriousness of these offences.

[13]

Nature of offences

A fundamental consideration for environmental offences is the extent to which the defendant's conduct offends against the legislative objectives expressed in the offence (R v Peel [1971] 1 NSWLR 247 at 262; Garrett v Williams (2006) 160 LGERA 115; [2006] NSWLEC 785 at [89]; Garrett v Freeman (No 5) (2009) 164 LGERA 287; [2009] NSWLEC 1 at [52]; and Director-General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 at [15]). The objects of the POEO Act are set out in [4] above.
The Prosecutor's submission that the offence of polluting water plays an important role in giving effect to the objects of the POEO Act and, in particular, pollution prevention is accepted. As Preston CJ observed in Environment Protection Authority v Baiada Poultry Pty Ltd (2008) 163 LGERA 71; [2008] NSWLEC 280 at [23] "pollution of waters is a result offence where the proscribed result directly undermines the objects of the [POEO Act]". By polluting waters, other than in accordance with the conditions of its EPL, Sydney Water undermined the statutory scheme.
In respect of the Licence Offence, as I observed in Environment Protection Authority v Wollondilly Abattoirs Pty Ltd [2019] NSWLEC 72 at [35], EPLs are the primary means of regulation under the POEO Act. A strong regulatory framework is the key mechanism by which objectives in s 3(a), (d), (e) and (f) (extracted in [4] above) of the POEO Act are achieved. Compliance with conditions imposed under an EPL is an essential part of the regulatory framework in the POEO Act.
The commission of the offences occurred in the National Park, the significance of which is identified in s 30E of the National Parks and Wildlife Act 1974 (NSW) (NPW Act).

[14]

EPL conditions

Relevant conditions of the EPL are extracted in [28] above. The EPL, through its conditions, requires pollution prevention. The Prosecutor submitted that the EPL specifically provides for Sydney Water's obligations in the event that an overflow from the reticulation system occurs. Condition O3.1 is important to the regulatory framework for environmental protection. Condition O3.1 foreshadows the possibility of harm or likely harm to the environment and public health risks caused by sewage overflows. That Sydney Water therefore had reason to foresee such potential consequences and to prepare systems for dealing with overflows cannot be gainsaid. Sydney Water's failure to provide an adequate emergency response to the overflow in this case not only contravened conditions of its EPL intended to prevent pollution (and to address its aftermath), but in fact resulted in pollution in this case, undermining the regulatory framework for environmental protection.
Sydney Water submitted the complexity of the sewerage system and how it is regulated under the EPL is relevant context. The purpose of an EPL is to give permission to pollute in prescribed circumstances. Condition L1.1 requires compliance with s 120 of the POEO Act except in circumstances expressly provided for in the EPL. The overflow was an authorised discharge per Condition L7.4, meaning it cannot amount to an aggravating circumstance. Condition L7.4 authorises 142 dry weather overflows per reporting period, however under Condition L1.3 a discharge will not be lawful if it can be discerned that the cause of the pollution was a relevant failure on Sydney Water's behalf, such as a failure to operate any part of the reticulation system in a proper and efficient manner or a failure to maintain any part of the reticulation system in a proper and efficient manner. That obligation sits across the ability to lawfully pollute. A failure to comply with obligations under Condition L1.3 is not the subject of a charge. Condition L7.2 relates to wet weather overflows, unlike this dry weather overflow, but shows a fundamental acceptance by the regulatory authorities that pollution events are inevitable. There are no limits on wet weather overflows. Sydney Water's EPL anticipates the inevitability of discharges and expressly allows them, subject to the operation of the EPL as a whole.
The Prosecutor disputed the claim that the dry weather overflow was authorised by the EPL. Ultimately Sydney Water submitted that it should not be sentenced as if charged with the sewage overflow, as it was not.

[15]

Maximum penalty

In setting a penalty, the Court should have regard to the maximum penalty applicable as this is an expression of the seriousness Parliament attributes to the offence. In Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 and 701: The task of a court is to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided... …the more serious the lasting environmental harm involved the more serious the offence and, ordinarily, the higher the penalty.
The maximum penalty for the Licence Offence in the case of a corporation is $1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues (POEO Act s 64(1)(a)).
The maximum penalty for the Pollution Offence in the case of a corporation is $1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues (POEO Act s 123(a)).

[16]

POEO Act s 241 factors

The POEO Act identifies in s 241 factors that must be considered in imposing a penalty where relevant.

[17]

The extent of the harm caused or likely to be caused to the environment by the commission of the offences (s 241(a))

The SOAF at pars 160-165 sets out agreed facts in relation to environmental harm. Paragraphs 160 and 161 state that the overflow caused actual harm to the environment and posed a risk to human health and harm to bushland downhill of the maintenance hole. The effect of flushing additional sewage material into the Lane Cove River, exacerbating the effects of the overflow, is identified at par 162. The lack of a thorough manual clean-up prior to flushing meant that the potential to minimise the impacts of the overflow did not occur, at par 163. Sampling data suggests impacts extended to more than 2.4 km into the Lane Cove River (at par 164). The issue that arises is whether the Prosecutor can establish beyond reasonable doubt that actual harm and/or likely harm arose from the offences charged beyond what has been agreed.

[18]

Relevance of overflow

The parties disagreed as to the overall context in which the offences should be considered. Whilst not the subject of a charge, the Prosecutor submitted that the evidence of harm to the environment caused by the overflow is relevant context to the Court's assessment of the offences. The harm caused by the flushing is inextricably connected with the pollution discharged into the environment by reason of the overflow. The act of flushing with mains water over the affected area transferred pollutants further into the National Park. This position is said to be supported by Einfeld v R (2010) 200 A Crim R 1; [2010] NSWCCA 87 (Einfeld) at [144], [146] per Basten JA, Hulme and Latham JJ agreeing, that surrounding conduct cannot give rise to a more serious offence, but can demonstrate the degree of seriousness with which the charged offence should be viewed. The overflow and the harm it caused are necessarily part of the factual context in which flushing occurred which had the effect of transferring contaminants further into the environment.
Sydney Water submitted that the overflow and pollution caused by it are irrelevant to these proceedings. To take it into account would be to punish Sydney Water for an offence with which it has not been charged.
I generally agree with Sydney Water's approach as that accords with correct sentencing principles. Einfeld, an appeal against the severity of a sentence for an offence of perjury related to a traffic incident to which the appellant pleaded guilty, considered at [144], [146] ways in which conduct constituting an uncharged offence may be taken into account in sentencing and not offend the De Simoni principle (R v De Simoni (1981) 147 CLR 383; [1981] HCA 31 (De Simoni)). There is no basis established for the Prosecutor to assert that the overflow is an uncharged offence in light of Condition L7.4 of the EPL which allows 142 dry weather overflows as not constituting a breach of the licence, on the assumption that Condition L.3 has been complied with, as Sydney Water identified. In the absence of agreement about how the EPL applies to the overflow, as set out above in [36]-[38], all that the Court can consider is that no charge in relation to the overflow has been pursued. Einfeld is not relevant given these entirely different circumstances.
The Prosecutor submitted that the evidence of Dr Chandra confirms that the overflow and flushing event are closely linked. That can be accepted but does not mean that the harm resulting from the overflow simply becomes part of the harm arising from the offences. The Prosecutor bears the burden of proof beyond reasonable doubt of matters in dispute which are adverse to Sydney Water. Consequently the Prosecutor bears the onus of proving the extent of harm caused by the events giving rise to the two charges, which is difficult to separate from the overflow event as I discuss below.

[19]

Difficulty in proving actual harm beyond reasonable doubt

Regarding the Pollution Offence, the Prosecutor relied on the Supplementary Report to submit that the flushing on 29 and 30 July 2018 transferred the majority of the sewage present in the unnamed creek as a result of the overflow into the Lane Cove River (see [13] above) and so caused actual and likely harm to the environment. The Prosecutor submitted that Dr Chandra considered that based on sampling from the unnamed creek and the Lane Cove River both before and after the flushing reached the sampling locations, the flushing added acutely toxic ammonia concentrations into the Lane Cove River and pathogenic organisms were also flushed into the Lane Cove River. This would have led to the effects outlined in the Supplementary Report, summarised in [13(b)]-[13(e)] above.
The Prosecutor submitted that the effects of the flushing were worsened due to inadequate physical containment by Sydney Water. In particular, a water gate placed in the unnamed creek was ineffective to contain the sewage and water solution, and the pumping which took place at Browns Waterhole two kilometres downstream, and the water gate in that location, were both inadequate to contain the flow into the Lane Cove River. In the Prosecutor's submission, Dr Chandra considered that the ineffectiveness of the pumping and water gate was likely due to the excess water flow from the flushing itself (see [13] above).
Sydney Water submitted that in preparing the Supplementary Report, Dr Chandra was attempting to identify the difference in harm to the receiving environment caused by the flushing the subject of these proceedings, in contrast to that caused by the overflow. Dr Chandra tried to prove that point beyond reasonable doubt in the section headed "Harm to the environment" (summarised in [13] above). The repeated use of the phrase "would have" means it is not possible for the Court to determine whether there was any actual increased harm. This was an appropriate way for Dr Chandra to phrase his findings as there was insufficient data for him to be able to express an opinion as to the temporal and spatial impacts of the flushing the subject of these proceedings. Sydney Water submitted that the Prosecutor must establish matters adverse to Sydney Water beyond reasonable doubt. The Supplementary Report had little relevance in that it did not establish that additional harm was caused by the flushing event over and above what was otherwise caused by the sewage overflow. Sydney Water should not be punished as if it was charged with that overflow event. I agree with Sydney Water that the overflow plainly did pollute the unnamed creek and the Lane Cove River, however Dr Chandra's evidence is not able to identify either quantitatively or qualitatively the actual harm caused by the further pollution event the subject of the Pollution Offence.

[20]

Receiving environment

The Prosecutor submitted that the condition of the receiving environment, in this case prior to the overflow, is relevant to the assessment of harm. There was no sampling of the receiving environment prior to the overflow but it is inherently unlikely that it was in a degraded state, being in a national park. The Prosecutor submitted that the fact that the overflow itself had already harmed the environment to some extent prior to the flushing was irrelevant, citing Environment Protection Authority v Ecolab (2002) 123 LGERA 269; [2002] NSWLEC 206 at [14] (Ecolab). In other words, the Prosecutor submitted that the Court should compare the condition of the unnamed creek and the Lane Cove River prior to the overflow not the subject of a charge with the condition after the flushing and clean-up the subject of charges.
In Ecolab, the defendant was charged with an offence against s 120(2) of the POEO Act for the spillage of between 500 and 600 litres of bleach from a ruptured tank into a stormwater drain and downstream into an unnamed creek in Castle Hill. Cowdroy J said at [13] that to determine the extent of environmental harm, it is necessary for the Court to compare the condition of the creek before and after the contamination event. At [14], Cowdroy J held that findings that the pre-existing condition of the waters was polluted should not serve to mitigate the defendant's conduct. Nevertheless, his Honour said it was important to determine the condition of the receiving waters in order to assess the extent of the environmental harm occasioned by the pollution. The Prosecutor submitted that when Cowdroy J described the receiving waters as of generally poor quality (at [15]), his Honour was looking at the receiving environment before the defendant did anything. Applied to the facts of this case, the Prosecutor submitted that the fact that the overflow itself had already harmed the environment to some extent, prior to the flushing, is irrelevant, relying on Ecolab at [14]. In other words, the fact that the receiving waters had been modified or disturbed by the overflow, prior to the flushing, cannot be a factor mitigating Sydney Water's conduct, particularly as Sydney Water's conduct caused the overflow: Environment Protection Authority v Sydney Water [2019] NSWLEC 100 (EPA v Sydney Water 2019) at [253] and cases cited therein.
For reasons already given above, this is not the correct approach to sentencing for these two offences. Firstly, it is not proven that Sydney Water caused the overflow. Secondly, the Prosecutor cannot rely on the pollution arising from the overflow as the relevant "before and after" comparison of the receiving waters. The facts of these offences are unlike all the other cases considered in this judgment such as Ecolab where the sewage pollution the subject of a charge caused the environmental harm being considered. Here the overflow incident which harmed the receiving waters is not the subject of a charge, it is the subsequent clean-up which has resulted in charges.

[21]

Conclusion on environmental harm

The Supplementary Report is relied on by the Prosecutor in relation to the Pollution Offence which focussed on the flushing events on 29 and 30 July 2018. The Prosecutor submitted that based on this report the majority of sewage present in the unnamed creek was flushed into the Lane Cove River. The Supplementary Report simply records Dr Chandra's understanding that this occurred. The basis for that understanding is not identified by him and it is not a matter agreed in the SOAF. That is not a matter established beyond reasonable doubt on the basis of any evidence. The concluding paragraph of the Supplementary Report is set out above at [15]. It identifies that it is not possible to specify the impacts of the flushing event separately from the overflow.
The Prosecutor submitted that actual and likely harm were caused by the Pollution Offence. The Prosecutor must prove matters adverse to Sydney Water beyond reasonable doubt. It is not open on Dr Chandra's evidence, which is couched in terms of what "would have" resulted from the flushing, to find that any actual harm was caused by the Pollution Offence. I accept Sydney Water's submission in [50] above that it is not possible for the Court to determine whether there was any actual increased harm. It is open to conclude that there was likely harm to the environment resulting from the flushing but how much is unquantifiable, essentially as recorded in par 162 of the SOAF.
Concerning the Licence Offence, the Prosecutor relies on the First Expert Report that the overflow occurred can be considered as context but Einfeld does not support the adoption of the Prosecutor's approach to environmental harm in this case which essentially seeks to punish Sydney Water on the basis of the environmental impacts of the overflow.
The Prosecutor submitted that the Licence Offence resulted in the exacerbation of likely harm to the environment and greater risk to human health. As Sydney Water submitted, the First Expert Report focussed on the environmental harm arising from the overflow event not the subject of a charge. The Prosecutor relied on this report in relation to the Licence Offence which focusses on the poorly executed manual clean-up over a three week period. The First Expert Report does not prove likelihood of harm to the environment beyond reasonable doubt as a result of the Licence Offence to any greater extent than is already recorded in the SOAF. The actions of carrying out the flushing were likely to cause harm to the environment and pose a risk to human health but it is difficult to identify the extent of that increased harm and risk over and above the overflow on the available evidence.

[22]

The practical measures that may be taken to prevent, control, abate or mitigate that harm (s 241(b))

The obligation to take "all reasonable and feasible actions as soon as practicable to minimise the impact of the overflow" is required by Condition O3.1. Paragraph 158 of the SOAF states that the Field Sampling and Testing (FST) recommendations made on 27 July 2018 were reasonable and feasible actions that Sydney Water should have taken to minimise the impact of the overflow on the environment and public health. Sydney Water accepted that more effective practical measures could have been taken to communicate the FST recommendations to staff and to have these implemented. Sydney Water pointed out that immediate action was taken as soon as the odour complaint was received in the evening of 26 July 2018. Nineteen minutes after the first odour report was made a Sydney Water staff member was on site looking for a cause of the odour. The cause could not be identified that night as it was dark and in dense rugged bushland in the National Park. After recommencing searching at 7.24am the next morning, the source of the overflow was identified and an incident declared after 36 minutes. This was a fast and appropriate response. By 9am, signs were put up to protect members of the public and a water gate was in place. By 2:50pm the blockage had been cleared (SOAF par 27).
While I accept that Sydney Water took immediate and appropriate action, implementation of the FST recommendations was non-existent in the first stages of clean-up, hence the flushing on 29 and 30 July 2018 before any effective clean-up (the Pollution Offence) took place. The prolonged failure to clean up over a three week period giving rise to the Licence Offence was unsatisfactory to say the least. The failures identified by the Prosecutor which resulted in the Pollution Offence, including the failure to communicate the FST recommendations to the appropriate supervisors of work crews and absence of training for staff that attended the overflow so that flushing occurred before an adequate manual clean-up, are identified below in [69(a)-69(f)]. These same failures essentially continued in relation to the Licence Offence as set out below in [69(g)-69(j)], whereby the failure to manually clean up adequately continued for a lengthy period and occurred only when Sydney Water was prompted by the Prosecutor to do so.

[23]

The extent to which the person who committed the offences could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offences (s 241(c))

Untreated sewage entering a waterway presents a foreseeable risk to downstream environments and to human health. These offences concern the ineffective clean-up of a sewage overflow in a waterway. In relation to the Pollution Offence, I agree with the Prosecutor that Sydney Water could reasonably have foreseen the likelihood of harm and greater risk to human health (both unquantifiable) of opening the mains water valve on 29 and 30 July 2018 before adequate clean-up took place. Similarly for the Licence Offence, the likelihood of greater harm to the environment and risk to human health was foreseeable.

[24]

The extent to which the person who committed the offence had control over the causes that gave rise to the offences (s 241(d))

Sydney Water accepts it had control over the flushing the subject of the Pollution Offence and steps taken to manage it, including the manual clean-up the subject of the Licence Offence.

[25]

State of mind aggravating?

Regarding the Pollution Offence, the Prosecutor submitted that the offence was committed intentionally. Sydney Water had control over the actions of its employees who deliberately flushed the affected area knowing that a substantial amount of untreated sewage had been discharged into the National Park. The Court can take the intentional commission of the offence into account in assessing its objective seriousness. In oral submissions the Prosecutor clarified that when it said "intentional" it did not submit that the flushing was committed with the purpose of causing harm to the environment. The word "intentional" was used to distinguish this case from those where an act of pollution may have resulted from carelessness or negligence, or inadvertence. In this case there was a deliberate turning on of the mains valve which is an inevitable part of the factual matrix as is clear from the SOAF. Sydney Water accepted this clarification and emphasised that there is no evidence to support a finding beyond reasonable doubt of intention in the strict sense. I agree. These circumstances do not warrant a finding of Sydney Water's corporate state of mind aggravating the Pollution Offence.
Regarding the Licence Offence, the Prosecutor submitted that it is open for the Court to find that the offence was committed negligently or, alternatively, recklessly. In Gordon Plath of the Department of Environment and Climate Change v Fish; Gordon Plath of the Department of Environment and Climate Change v Orogen Pty Ltd (2010) 179 LGERA 386; [2010] NSWLEC 144 at [81] (Plath v Fish) I held that for an act 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 (citing 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 (Cittadini) at [38]-[40]). There must have been an indifference to an obvious risk, per R v Taktak (1988) 14 NSWLR 226 at 247, applied in Cittadini at [39]. In EPA v Sydney Water 2019 Pepper J considered at length the relevant test for criminal negligence as enunciated in the authorities cited in Plath v Fish in the context of criminal manslaughter cases of King v The Queen (2012) 245 CLR 588; [2012] HCA 24, Nydam v R [1977] VR 430 and R v Moore (2015) 91 NSWLR 276; [2015] NSWCCA 316 focussing particularly on the absence of reference to indifference to obvious risk in Cittadini in those cases. Ultimately her Honour concluded at [186]-[187], in relation to Sydney Water's argument that an indifference to obvious risk was insufficient to establish criminal negligence, that such a test is not necessarily wrong provided that the stringent test that criminal negligence demands is not undermined.

[26]

Pollution Offence

It was not disputed that the De Simoni principle, that a court cannot take into account as an aggravating factor a circumstance that would warrant conviction for a more serious offence, applies to offences committed under s 120 of the POEO Act. The Court is not considering Sydney Water's state of mind in relation to the s 120 offence because of the more serious water pollution offence under s 116 which has not been charged: EPA v Sydney Water 2019 at [143] citing Environment Protection Authority v Tea Garden Farms Pty Ltd [2012] NSWLEC 89 at [101]-[102]; Environment Protection Authority v Snowy Hydro Ltd (2008) 162 LGERA 273; [2008] NSWLEC 264 at [145]-[151]; Environment Protection Authority v Queanbeyan City Council (No 3) (2012) 192 LGERA 415; [2012] NSWLEC 220 at [178] and Environment Protection Authority v Orica Australia Pty Ltd (2014) 206 LGERA 239; [2014] NSWLEC 103 at [127]-[139]).

[27]

Licence Offence

The Prosecutor submitted that the De Simoni principle is not applicable to the Licence Offence, the gravamen of which is the failure to minimise the impact of the overflow by conducting an effective manual clean-up in a timely manner. The state of mind of being reckless or negligent can therefore be considered as an aggravating factor. In EPA v Sydney Water 2019 (also a charge of failing to comply with a licence condition under s 64(1)) Pepper J held at [166] that, there being another more serious offence under s 116 with which the defendant had not been charged, the De Simoni principle would have been infringed if the Court had taken into account negligence on the part of the defendant in determining an appropriate sentence for a breach of s 64.
The Prosecutor submitted that the present case can be distinguished in that the licence condition breached is particularised as a failure to minimise the impact of an overflow, rather than the pollution of waters. This means there is no counterpart offence to s 64 which involves a higher maximum penalty or heightened state of mind. Section 116 is not a counterpart offence that engages De Simoni. The offending behaviour in this case does not sit within the ambit of s 116 as the Licence Offence is not about a breach of a condition dealing with water pollution.
In contrast, Sydney Water submitted that the De Simoni principle does apply to the Licence Offence. The facts and circumstances are very similar to EPA v Sydney Water 2019 in which Pepper J found that De Simoni did apply to the s 64 offence charged. The Prosecutor's allegation that the breach of the licence leading to polluted waters was negligent or reckless offends the De Simoni principle as it picks up elements of the s 116 offence. It is irrelevant that s 116 is differently worded to the condition breached in the Licence Offence. The focus should be upon the circumstances of the offence to make sure punishment is only for the offence charged and that matters of aggravation which would have warranted a different offence are not taken into account. The Prosecutor incorrectly submits that the particulars in EPA v Sydney Water 2019 that the licence condition breached related to pollution of water distinguish it from this case. This is the wrong approach. It is the circumstances of the offence for which a defendant is to be sentenced, rather than the particulars. The circumstances giving rise to the Licence Offence were a pollution event to which s 116 could have applied.

[28]

Conclusion on De Simoni

I consider that Sydney Water's submissions are correct in the sentencing context I am considering. As its counsel identified, the circumstances are very similar to EPA v Sydney Water 2019. In that case the particulars in the summons for the breach of s 64 were set out at [4] and the manner of breach of Condition O1.1 of the relevant EPL in failing to carry out licensed activities in a competent manner were specified (paraphrasing) as poorly executed maintenance works and failure to undertake monitoring, as a consequence of which sewage overflowed through an overflow structure and into a specified stream. That water pollution event was also the subject of a separate charge. A detailed consideration of whether the De Simoni principle operated in sentencing in those circumstances is set out at [143]-[165], Pepper J concluding at [166] that in asking the Court to consider if Sydney Water had been negligent in the criminal sense when sentencing invited the Court to punish on the basis of aggravated circumstances which could constitute a different offence under s 116, hence the De Simoni principle would be infringed.
In the Licence Offence, the particulars of the manner of breach extracted in [6] above allege a failure to follow the FST recommendations which included a manual clean-up of the area affected by the overflow, failure to properly monitor whether the manual clean-up was complete before flushing, continuing with flushing despite the manual clean-up not being completed inter alia, as a consequence of which the impact of the overflow on the environment was not minimised. While the words "pollution of water" or similar do not appear in the particulars of the manner of breach, that is the result giving rise to the offence. The summons in EPA v Sydney Water 2019 was similarly phrased. In both matters water pollution was and is the consequence of the s 64 offence. I consider the reasoning of Pepper J should be applied in the interests of judicial comity and because it is clearly correct. Accordingly, the De Simoni principle prevents the EPA alleging that Sydney Water acted negligently or recklessly in the criminal sense in relation to the Licence Offence.
I also wish to make observations concerning additional submissions made by Sydney Water which do not strictly arise given my conclusion immediately above. If De Simoni did not apply and the EPA could allege criminal negligence or recklessness, Sydney Water submitted that the offence was not properly particularised. The importance of the particularisation of the offence is to identify the case that the defendant is to meet: Gregg v The Queen [2020] NSWCCA 245 at [395], Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70. It was not alleged in the summons by the EPA that Sydney Water was negligent or reckless in the Licence Offence. That is not the offence with which Sydney Water has been charged. In Sydney Water's submission, a prosecutor must put a defendant on notice from the beginning that they think the conduct has been reckless, not allege that for the first time in written submissions.

[29]

Reasons for committing the offence

There is no evidence to suggest that the offences were committed for any reason such as financial gain that would increase the objective seriousness of the offences. The flushing was part of Sydney Water's usual operations in responding to overflows.

[30]

Conclusion on objective seriousness

The Prosecutor did not charge Sydney Water with the overflow event which was the trigger for the actions resulting in the two offences charged. Sydney Water responded promptly to the notification of a problem, clearing the blockage which caused the overflow quickly. It correctly identified the necessary measures to respond to the overflow in the FST recommendations. The failures resulting in these two offences were not implementing these recommendations in undertaking the first flushing before any adequate manual clean-up of sewage took place (the Pollution Offence) and continued failure to implement the identified measures over a reasonably lengthy period of some three weeks (the Licence Offence). The failure to implement any appropriate clean-up measures before the flushing on 29 and 30 July 2018 were matters completely within the control of Sydney Water. The extended period over which there was ongoing failure to clean up resulting in the Licence Offence was also within Sydney Water's control. The Prosecutor's case referred to in [69] above identifies failures in Sydney Water's procedures which resulted in these offences. The offences did result in an unspecified likelihood of harm to a waterway in a national park and increased risk (also unquantified) to human health.
Both offences are in the high end of the low range of objective seriousness.

[31]

General and specific deterrence

General deterrence is an important factor in sentencing for environmental offences. As held by Preston CJ in Bentley v BGP Properties Pty Limited (2006) 145 LGERA 234; [2006] NSWLEC 34 at [139]-[140]: The sentence must serve the purpose of general or public deterrence. It is the duty of the Court to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who might otherwise be tempted by the prospect that only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597-598. This factor is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Limited (1993) 78 LGERA 349 at 354 and Director-General, National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 at [85] and [93] per Lloyd J.
Specific deterrence is a purpose of sentencing under s 3A(b) of the CSP Act and has been considered relevant where a defendant continues in the same area of operation in which an incident has occurred. The principle was discussed by the High Court in Veen (No 2) at 477 in the following terms: The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.
According to the Prosecutor, there is a need for specific deterrence as Sydney Water continues to operate a large sewerage treatment network where there is an ongoing risk of water pollution. The penalty imposed must serve to reinforce Sydney Water's responsibility to ensure it complies with its EPL and does not cause water pollution.
Sydney Water submitted there is no need for specific deterrence. The affidavits of Mr Fairbairn (summarised in [23]-[27] above) and Ms Cooper (summarised in [16]-[22] above) demonstrate that the pollution event is antipathetic to the aims of Sydney Water. Sydney Water responded immediately to the overflow in an attempt to ensure it would not occur again. Prior convictions, discussed below, are relevant to the consideration of specific deterrence.

[32]

Prior convictions (CSP Act s 21A(2)(d))

An offender's prior convictions may be taken into account in determining what sentence, within the boundaries of an otherwise proportionate sentence range should be imposed, particularly with reference to the increased weight to be given to retribution, personal (or specific) deterrence and the protection of society (Veen (No 2) at 477-478, R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [17]-[34]).
Prior convictions can be an aggravating factor under s 21A(2)(d) of the CSP Act. I note that a lack of significant prior convictions can act as a mitigating factor under s 21A(3)(e) of the CSP Act: Environment Protection Authority v Sydney Water Corporation [2015] NSWLEC 80 (Malabar Beach Case) at [84] and EPA v Sydney Water 2019 at [307]. Five of Sydney Water's prior convictions under the POEO Act are set out at pars 166-170 of the SOAF. The Prosecutor submitted that the antecedents are significant and include convictions for similar offences.
In Malabar Beach Case in 2015 at [83], as the last of four prior convictions was 15 years earlier the Court concluded a continuing attitude of disobedience of the law was not manifested. In EPA v Sydney Water 2019 at [298]-[302] the Court took into account four prior convictions for similar offences as an aggravating factor in sentencing, as the offences were committed in reasonable temporal proximity to Malabar Beach Case.
The present offences were committed approximately one year after the offences in EPA v Sydney Water 2019 and thus are in reasonable temporal proximity to those earlier offences.
Sydney Water submitted that the prior convictions do not show a pattern of continuing disobedience given the very large scale of the sewerage reticulation system that it operates, and in particular the number of issues with chokes from tree roots invading pipes in drought conditions that it responds to, as identified in Ms Cooper's affidavit in [19]-[20] above. Prior convictions do not show a pattern of continuing disobedience. Regarding the circumstances giving rise to the Pollution Offence, a failure at a sewerage treatment plant at Malabar because of a broken valve (Malabar Beach Case) is entirely different to tree roots blocking a pipe in the Lane Cove River, such that this does not amount to an aggravating circumstance. Similarly, regarding the Licence Offence, to say there have been prior breaches of s 64 is meaningless as a breach of s 64 can be about something entirely different to the circumstances of this case, such as for a failure to report under an EPL. The Court needs to understand the nature of the offences put forward as prior convictions. The Prosecutor has not attempted to assist the Court in doing so. In any event, the number of prior convictions is low when the size of the systems maintained by Sydney Water and the number of chokes that occur are considered. Sydney Water's record shows its attention to its environmental ethos and commitment to preventing pollution events.

[33]

Enforceable undertakings

The Prosecutor submitted that in addition to prior convictions, the fact that the EPA accepted an enforceable undertaking from Sydney Water pursuant to s 253A of the POEO Act in respect of the alleged breaches of ss 120 and 64 relating to sewage discharges from the Northern Suburbs Sewerage Treatment system (SOAF par 172) was also relevant to the question of specific deterrence. However, as Sydney Water submitted, the making of an enforceable undertaking is not evidence of a criminal breach. An enforceable undertaking cannot be treated like a prior conviction because it is not an admission of guilt as stated in s 253A of the POEO Act.

[34]

Mitigating factors

Under s 21A of the CSP Act, in determining the appropriate sentence for an offence, the Court is to take into account relevant mitigating factors.

[35]

Good character (s 21A(3)(f))

Matters relevant to Sydney Water's good character are set out in the affidavit of Mr Fairbairn, including that it takes its environmental protection responsibilities seriously (at [25]), and takes part in a wide range of community projects to sustain and enhance community enjoyment of waterways (at [27]). I accept that Sydney Water is of good corporate character.

[36]

Unlikelihood of reoffending (CSP s 21A(3)(g)) and rehabilitation (CSP Act s 21A(3)(h))

The affidavit of Ms Cooper goes to Sydney Water's prospects of rehabilitation and unlikelihood of reoffending. As summarised in [22] above, Ms Cooper deposed that Sydney Water has improved its response systems to ensure the deficiencies in its response to the overflow are not repeated. This has included revision of work instructions for the clean-up of overflows, changes to the allocation of responsibility, improved manual clean-up instructions, staff training and recruitment of additional technicians, maintenance workers and clean-up contractors inter alia. Mindful of its prior conviction for similar offences, I consider the risk of re-offending is low but not non-existent.

[37]

Remorse (CSP Act s 21A(3)(i))

Sydney Water has expressed remorse and confirmed this by its actions as identified in Ms Cooper's affidavit. The affidavit of Mr Fairbairn attests to Sydney Water's remorse, summarised in [23]-[1] above. Sydney Water accepts responsibility for its actions, expresses remorse, and recognises and accepts the failings in the clean-up process and that the pollution was not acceptable. Mr Fairbairn also attached to his affidavit a letter from the managing director of Sydney Water expressing regret and remorse on its behalf.

[38]

Plea of guilty (CSP Act ss 21A(3)(k) and 22)

Under s 22(1) of the CSP Act, the Court must take into account the fact that an offender has pleaded guilty. The Court of Criminal Appeal has stated that the appropriate range for such a discount is 10 to 25 percent, reflecting the utilitarian nature of an early plea: R v Thompson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [152].
Sydney Water pleaded guilty to the Licence Offence on 7 February 2020. It is agreed that the plea to the Licence Offence was entered at the earliest opportunity and consequently I consider the maximum discount should apply.
The Prosecutor submitted that Sydney Water's plea of guilty to the Pollution Offence on 17 April 2020 was not entered at the first available opportunity. Sydney Water pleaded guilty to the Licence Offence after the Prosecutor had prepared its evidence. The plea had utilitarian value, but the discount should not be at the top of the range, according to the Prosecutor. Sydney Water submitted that the plea in relation to the Pollution Offence was entered before the matter was listed for hearing and in circumstances where the Prosecutor foreshadowed the discontinuance of two of the four matters then before the Court. I will apply a slightly reduced discount to the Pollution Offence given these circumstances.

[39]

Assistance to law enforcement authorities (CSP Act s 21A(3)(m))

Summarised in [26] above, Mr Fairbairn deposed and I accept that Sydney Water endeavoured to ensure its utmost cooperation with the EPA by providing prompt assistance throughout the reporting of, and response to, investigation of the incident.

[40]

Proportionality / even handedness

The principle of even-handedness requires that the Court consider if there is any sentencing pattern for like offences in order to determine a consistent approach to penalty: R v Visconti [1982] 2 NSWLR 104. This principle must always be applied subject to the particular circumstances of the case before the Court: Hoare v The Queen. The principle of even-handedness in sentencing so that like offences receive like sentences is recognised, but each case must be determined on its own facts: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 (Hili). A history of sentencing in other cases does not limit my sentencing discretion. In Hili the High Court (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) held at [54] that: In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: "Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts." But the range of sentences that have been imposed in the past does not fix "the boundaries within which future judges must, or even ought, to sentence". Past sentences "are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence" (emphasis added). When considering past sentences, "it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned".
The Prosecutor provided the Court with a table of comparable cases summarising the sentencing considerations and penalties imposed in six POEO Act cases. It is useful to consider three of these cases. In EPA v Sydney Water 2019, Sydney Water pleaded guilty to two offences against s 120(1) and one offence against s 64 of the POEO Act. The s 120 pollution offences related to intermittent overflows of sewage in May and June 2017 that were not authorised by the relevant EPL, resulting in the discharge of hundreds of millions of litres of sewage which flowed downstream into the waters of Botany Bay. The licence offence arose from a failure to carry out licenced activities in a competent manner, due to carrying out maintenance works in a manner that did not avoid the risk of sewage overflows. Regarding harm, the parties agreed that the first water pollution offence caused actual harm to the environment by polluting the aquatic environment and degrading the water quality (at [232]). 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, based on the agreed facts (at [233]). The parties also agreed that the second pollution offence caused actual harm (at [244]) and likely harm to the environment (at [245]).

[41]

Totality principle

The sentencing principle of totality is relevant where more than one similar offence is committed, to ensure that the sum of any fines imposed is not disproportionate to the total criminality of a defendant. In Environment Protection Authority v Wattke; Environment Protection Authority v Geerdink [2010] NSWLEC 24 at [98] I said: … That principle requires a judge to determine the appropriate sentence for each offence and when reviewing the aggregate sentence, consider whether it is just and appropriate. In this way the overall criminality of all the offences is reflected proportionately in the sentences imposed, Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 62, Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, and Pearce v The Queen [1988] HCA 57; (1988) 194 CLR 610.
The Prosecutor submitted that the Licence Offence involved criminality additional to the Pollution Offence as it resulted in a prolonged period during which the harmful impact of the overflow and flushing were not addressed or minimised. The failure to complete an urgent clean-up fell well short of the standard required by the EPL. The Court must ensure that the aggregate of the penalties is just and appropriate.
Sydney Water submitted that the two offences arise out of the same incident. The Pollution Offence arises out of the same conduct that constitutes the offending contrary to s 64, as absent the failure to comply with the EPL, the pollution by way of flushing would not have occurred. The Court should contemplate the appropriate sentence for each offence and then review the aggregate to ensure that it reflects total criminality.

[42]

Additional order sought under s 250(1)(e) of the POEO Act

The Prosecutor seeks an order that Sydney Water pay an amount to NSW NPWS for a bush regeneration project, as enabled by s 250(1)(e) of the POEO Act which allows for an order that an offender pay a specified amount to a specified organisation, for the purposes of a specified project for the restoration or enhancement of the environment or for general environmental purposes. Annexed to the Prosecutor's proposed orders is a document detailing a proposal for bush regeneration within the National Park. The costs of the proposed project over a five-year period are $127,000 in total.
The proposed project is generally responsive to the likely environmental harm arising from the offences and will enhance the quality of the National Park. It is appropriate to make such an order.

[43]

Publication order

The Prosecutor seeks a publication order, which is not opposed by Sydney Water, pursuant to s 250(1)(a) of the POEO Act. As I observed in Chief Executive, Office of Environment and Heritage v Kyluk Pty Limited (No 4) (2014) 212 LGERA 1; [2014] NSWLEC 74 at [102], the purpose of a publication order is to alert the public to the offence and to improve the effectiveness of sentences as a deterrent, citing Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 at [242]. It is appropriate to make such an order.

[44]

Investigation costs

The Prosecutor seeks an order for the reimbursement of specific investigation costs of $24,369 under s 248 of the POEO Act. Such an order is appropriate.

[45]

Costs

The Prosecutor seeks an order for costs which is not opposed by Sydney Water. An estimate of $220,000 was provided at the hearing, a substantial sum.

[46]

Moiety

The Prosecutor seeks an order that one half of any monetary penalty imposed by the Court be paid to the EPA pursuant to s 122 of the Fines Act 1996 (NSW). There is power to make such an order as s 122(1)(a) and (b) are satisfied, as is subs (3). Whether to make such an order is discretionary. Cases such as Secretary, Department of Planning and Environment v AGL Energy Limited; Secretary, Department of Planning and Environment v AGL Upstream Infrastructure Investments Pty Ltd [2017] NSWLEC 2 (AGL Energy) have considered whether a moiety should be ordered despite provision for the payment of investigation costs, as there is under the POEO Act. A moiety has been ordered in such circumstances. The Prosecutor seeks an order for the reimbursement of specific investigation expenses under s 248 of the POEO Act, as noted above in [114]. These expenses do not include the significant time spent by EPA officers investigating the offences and so do not fully compensate the EPA. The EPA's professional costs under the Criminal Procedure Act 1986 (NSW) also do not fully compensate the EPA as only a proportion of professional costs is likely to be recovered. An order for a moiety would therefore not represent a "windfall" or "benefit" to the EPA. The Prosecutor seeks an order for moiety to compensate it and to support the sustaining of environmental law enforcement activities, per Moore J in AGL Energy.
Sydney Water submitted that payment of any fine to the Prosecutor is inconsistent with the scheme under the POEO Act as Pt 8.3 sets out detailed provisions relating to Court orders which show that the legislature has turned its mind to the imposition of a penalty, payment of costs and investigation expenses within the scheme of that Act. The scheme does not anticipate that the Prosecutor will benefit from the proceedings. It is more appropriate that the fine go either to a specific environmental compliance program or to general revenue.
The orders proposed by the Prosecutor provide for the payment of an amount to NSW NPWS for the purposes of a bush regeneration project within the National Park. A moiety order of 50 percent of any additional monetary penalty determined by the Court not paid to the Project is proposed. I accept that the EPA does not obtain any windfall gain if such an order is to be made and theoretically I am open to doing so.

[47]

Conclusion on penalty

The appropriate penalty for the Pollution Offence is $120,000 which should be reduced by 30 percent in light of the early guilty plea and other mitigating circumstances to $84,000.
The Licence Offence is of similar seriousness and should have the same penalty of $120,000, reduced by 25 percent reflecting the slightly later guilty plea and other mitigating circumstances to $90,000.
I consider the totality principle should be applied to reduce both penalties, as the two offences arise from essentially the same circumstances. The penalties are reduced to $70,000 and $75,000 respectively, a total of $145,000.

[48]

Orders

The Court orders: In proceedings 231066 of 2019 1. The Defendant, Sydney Water Corporation, is convicted of the offence against s 64 of the Protection of the Environment Operations Act 1997 (NSW) as charged. In proceedings 231067 of 2019 1. The Defendant, Sydney Water Corporation, is convicted of the offence against s 120(1) of the Protection of the Environment Operations Act 1997 (NSW) as charged. In proceedings 231066 of 2019; 231067 of 2019 1. Pursuant to s 250(1)(e) of the Protection of the Environment Operations Act 1997 (NSW), Sydney Water Corporation is to pay the amount of $127,000 to NSW National Parks and Wildlife Service, within 28 days of this order, for the purposes of the Proposal for Bush Regeneration within Lane Cove National Park as described in Annexure A to these orders (the Project). 2. All future public references by Sydney Water Corporation to its contribution to the Project are to be accompanied by the statement that: Sydney Water Corporation's contribution to the Lane Cove National Park Bush Regeneration Project is part of a penalty imposed by the Land and Environment Court after Sydney Water Corporation was prosecuted by the Environment Protection Authority and convicted of one offence 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 122 of the Fines Act 1996 (NSW), a moiety of 50 percent of the additional monetary penalty of $18,000 be paid to the Prosecutor. 2. Pursuant to s 248(1) of the Protection of the Environment Operations Act 1997 (NSW), Sydney Water Corporation is to pay the Environment Protection Authority's reasonably incurred costs and expenses incurred during the investigation of the offences in the amount of $24,369. 3. Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), Sydney Water Corporation is to pay the Environment Protection Authority's costs in an amount as agreed or as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW). 4. Pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997 (NSW), Sydney Water Corporation, at its expense, is to: 1. within 28 days of the date of this order, cause a notice of a minimum size as near as practicable to 180cm2 to be published within the first 12 pages of the Sydney Morning Herald, The Daily Telegraph and the North Shore Times, with the text of such notice to be as set out in Annexure B to these orders; and 2. within 42 days of the date of this order, provide to the Environment Protection Authority, a copy of the entire page of each of the Sydney Morning Herald, The Daily Telegraph and the North Shore Times on which the notice was published in accordance with paragraph (8)(a) above. 1. Pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997 (NSW), 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 B to these orders on its Facebook wall, together with the photograph at Tab 7 of the Statement of Agreed Facts and a hyperlink directly to the Court's judgment as published on the New South Wales Caselaw website and tagging the NSW Environment Protection Authority and NSW National Parks and Wildlife Service in the post. The post is to be made between the times of 8am and 10am or between 4.30pm and 6.30pm on a weekday. This post must remain a pinned post on Facebook that remains at the top of the Sydney Water Facebook page for a minimum of seven (7) days; 2. within fourteen (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 offences related to inadequate clean-up of an overflow of 64,000 litres of untreated sewage into Lane Cove River and Lane Cove National Park in July 2018. Ordered to pay a total of $145,000 including $127,000 to the Lane Cove National Park Bush Regeneration Project: [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 together with the photograph at Tab 7 of the Statement of Agreed Facts. The tweet is to be made between the times of 8am and 10am or between 4.30pm and 6.30pm on a weekday. This tweet must remain a pinned tweet on Twitter that remains at the top of the Sydney Water Twitter page for a minimum of seven (7) days. The EPA may tag Sydney Water's Twitter account in any EPA tweets about the judgment; and 1. within 21 days of the date of this order, publicise the offences and the orders made against it by posting the photo at Tab 7 of the Statement of Agreed Facts on its lnstagram account with the following caption: @sydneywater was prosecuted by @NSW_EPA and convicted of offences related to inadequate clean-up of an overflow of 64,000 litres of untreated sewage into Lane Cove River and Lane Cove National Park in July 2018. Sydney Water pleaded guilty to an offence of water pollution and an offence of breaching its environment protection licence. Sydney Water was ordered to pay a total of $145,000 including $127,000 to the Lane Cove National Park Bush Regeneration Project: [INSERT URL TO JUDGMENT AS PUBLISHED ON NSW CASELAW WEBSITE] #sydneywater #environment #NPWS #LaneCoveRiver #LaneCoveNationalPark together with a URL to the Court's judgment as published on the New South Wales Caselaw website (as indicated above). The post is to be made between the times of 8am and 10am or between 4.30pm and 6.30pm on a weekday. This post must remain on its lnstagram account for a minimum of one month. 1. The exhibits are returned.

[49]

ANNEXURE A: 19-231066-67 ANNEXURE A (2056859, pdf) ANNEXURE B: 19-231066-67 ANNEXURE B (110611, pdf) 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: 12 November 2020

Environment Protection Authority v Sydney Water Corporation

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (49 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (76)

Cited By (19)