Environment Protection Authority v Sydney Water Corporation

Catchwords

[2014] HCA 2 Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234[2006] NSWLEC 34 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683[2009] NSWLEC 137 Director of Public Prosecutions (Cth) v De La Rosa (2010) 243 FLR 28[2010] NSWCCA 194 Elias v The Queen (2013) 248 CLR 483[2013] HCA 31 Environment Protection Authority v Baiada Poultry Pty Ltd (2008) 163 LGERA 71[2008] NSWLEC 280 Environment Protection Authority v Ballina Shire Council (2006) 148 LGERA 278Fairfield City Council v Bellagio Investments Pty Ltd [2021] NSWLEC 81 Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189[2006] NSWLEC 242 Garrett v Williams (2006) 160 LGERA 115[2006] NSWLEC 785 Harris v Harrison (2014) 86 NSWLR 422[2014] NSWCCA 84 Harrison v Perdikaris [2015] NSWLEC 99 Hoare v The Queen (1989) 167 CLR 348[1989] HCA 33 Markarian v The Queen (2005) 228 CLR 357[2005] HCA 25 Mill v The Queen (1988) 166 CLR 59[1988] HCA 70 Muldrock v The Queen (2011) 244 CLR 120[2011] HCA 39 Pearce v The Queen (1998) 194 CLR 610

Judgment (52 paragraphs)

[1]

Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 Environment Protection Authority v Sydney Water Corporation [2020] NSWLEC 153 Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 4 Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 17 Environment Protection Authority v Sydney Water (No 2) [2023] NSWLEC 2 Environment Protection Authority v University of Sydney [2022] NSWLEC 41 Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 Environment Protection Authority v Wollondilly Abattoirs Pty Ltd & Davis [2019] NSWCCA 312 Fairfield City Council v Oztech Developments Pty Ltd; Fairfield City Council v Bellagio Investments Pty Ltd [2021] NSWLEC 81 Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242 Garrett v Williams (2006) 160 LGERA 115; [2006] NSWLEC 785 Harris v Harrison (2014) 86 NSWLR 422; [2014] NSWCCA 84 Harrison v Perdikaris [2015] NSWLEC 99 Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 R v De Simoni (1981) 147 CLR 383; [1981] HCA 31 R v Kilic (2016) 259 CLR 256; [2016] HCA 48 R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 R v Peel [1971] 1 NSWLR 247 R v Van Ryn [2016] NSWCCA 1 Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Water NSW v Barlow (2019) 244 LGERA; [2019] NSWLEC 30 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 Texts Cited: Nil Category: Sentence Parties: Environment Protection Authority (Prosecutor) Sydney Water Corporation (Defendant) Representation: Counsel: C Leggat SC with F Berglund (Prosecutor) S Hall SC and J Caldwell (Defendant) Solicitors: Litigation Branch, Environment Protection Authority (Prosecutor) Clayton Utz (Defendant) File Number(s): 2021/302715; 2021/302716; 2021/302718 Publication restriction: Nil

[2]

JUDGMENT Nature of proceedings Outcome Evidence Statement of Agreed Facts Affidavit of Iain Fairbairn, Head of Wastewater and Environment, Sydney Water Corporation Summary of agreed facts The locations and parts of the reticulation system at Naremburn Condition of the Dawson Street Maintenance Hole and the Oviform Sewer The cause of the incident Rainfall during the period of the offences The defendant's actions during the period of the offences Volume of sewage overflows during the period of the offences Harm caused to the environment as a result of the offences Relevant statutory provisions Objective seriousness of the offences Nature of the offences Maximum penalty for the offence Harm caused to the environment by the commission of the offences; s 241(1)(a) of the POEO Act Offence 1, and harm caused to the environment Offence 2, and harm caused to the environment Offence 3, and harm caused to the environment The defendant's state of mind in committing the offences The defendant's reasons for committing the offences Practical measures taken to avoid harm to the environment; s 241(1)(b) of the POEO Act The reasonably foreseeable risk of harm to the environment by the commission of the offences; s 241(1)(c) of the POEO Act The defendant's control over the causes of harm to the environment; s 241(1)(d) of the POEO Act Conclusions in relation to the objective seriousness of the offences Offence 1 Offences 2 and 3 Subjective circumstances of the offender Prior criminality (s 21A(3)(e) of the CSP Act) Good character (s 21A(3)(f) of the CSP Act) Likelihood of reoffending (s 21A(3)(g) of the CSP Act) Remorse shown by the offender (s 21A(3)(i) of the CSP Act) Guilty pleas (ss 21A(3)(k), 22 of the CSP Act) Assistance to authorities (s 21A(3)(m) of the CSP Act) Conclusions in relation to the subjective circumstances of the offender Other principles of sentencing to be considered Proportionality Specific and general deterrence (s 3A(b) CSP Act) Denunciation and retribution (s 3A(a), (e), (f) of the CSP Act) Even-handedness and consistency in sentencing Capacity to pay fine (s 6 of the Fines Act) The appropriate penalty to be imposed Totality principle Conclusions in relation to the appropriate penalty to be applied in relation to each of the offences Payment of share of fine to prosecutor (s 122 Fines Act) Costs Publication order and notice to affected persons Orders

[3]

Nature of proceedings

The defendant, Sydney Water Corporation, owns and operates the Northern Suburbs Sewage Treatment System (STS), which includes the sewage treatment plant at Blue Fish Road, Manly, New South Wales.
The defendant is a statutory State-owned corporation established under the State Owned Corporations Act 1989 (NSW). As a State-owned corporation, for or in connection with the exercise of its powers, the defendant has all the powers of a natural person.
On 24 February 2023, the defendant pleaded guilty to three offences of polluting waters contrary to s 120(1) of the Protection of the Environment Operations Act 1997 (POEO Act): to a first offence as charged in the prosecutor's summons filed 25 October 2021, and to second and third offences as charged in the prosecutor's amended summonses filed 24 February 2023.
The three offences against s 120(1) of the POEO Act to which the defendant has pleaded guilty are: 1. between about 26 October 2020 and about 30 October 2020, at or near the STS, the defendant polluted waters contrary to s 120(1) of the POEO Act, when sewage escaped from a 225mm gravity reticulation sewer (the 225mm Sewer) and an adjoining maintenance hole located to the rear of Dawson Reserve Naremburn (the Playground Maintenance Hole), and flowed over land and entered Flat Rock Creek (Offence 1); 2. between about 27 October 2020 and 29 October 2020, at or near the STS, the defendant polluted waters contrary to s 120(1) of the POEO Act, when sewage discharged from an emergency relief structure near Gaza Road, Naremburn (Gaza Road ERS), and entered Flat Rock Creek (Offence 2); and 3. between about 27 October 2020 and 29 October 2020, at or near the STS, the defendant polluted waters contrary to s 120(1) of the POEO Act when sewage discharged from an emergency relief structure at Garland Road, Naremburn (Garland Road ERS), and entered Flat Rock Creek (Offence 3).
The particulars to each of the three offences are that the waters the subject of the offences was at Flat Rock Creek, Naremburn and downstream thereof, and that the pollutant was untreated sewage which included the following matter: 1. excrete and urine; and/or 2. matter that contains faecal coliform; and/or 3. matter that contains a nitrogen compound; and/or 4. matter that contains a phosphorous compound.
The offences arise from an incident whereby sewage discharged from three parts of the STS in the suburb of Naremburn, and was introduced to the environment, ultimately entering Flat Rock Creek (the incident). It was agreed that the sewage overflows were caused by the partial collapse of an oviform-shaped sewer (the Oviform Server) and an adjoining maintenance hole, located at or near Dawson Street, Naremburn, which resulted in a blockage in the reticulation system, causing sewage to back up into and discharge from the upstream locations. As a result of the overflows in the period between 26 October 2020 and 30 October 2020, about 16,000,000 litres of sewage discharged to the environment. That is, on any view, a considerable volume of sewage.

[4]

Outcome

The defendant has pleaded guilty to, and is convicted of three offences against s 120(1) of the POEO Act as charged. It arises to sentence the defendant for each of those offences.
I have determined to impose the following monetary penalties on the defendant, reflecting the utilitarian value of the guilty pleas: 1. a penalty in the amount of $337,500 in relation to Offence 1; 2. a penalty in the amount of $112,500 in relation to Offence 2; and 3. a penalty in the amount of $112,500 in relation to Offence 3, to which I have applied a further discount of 35 percent having regard to the totality principle, and the circumstance that the three offences arose from the same incident. This produces a total penalty for the three offences in the amount of $365,625. I propose to make an order that 50 percent of that amount be paid to the Environment Trust established under the Environmental Trust Act 1988 (NSW), pursuant to s 250(1)(e) of the POEO Act for general environmental purposes, and the remaining 50 percent be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996 (NSW). My orders to that effect and related orders are set out at the conclusion of these reasons for decision.

[5]

Statement of Agreed Facts

The parties filed an extensive Statement of Agreed Facts on 4 May 2023 (SOAF) which sets out the relevant background to the three offences.
The prosecutor relied on no evidence beyond the SOAF. However, at the hearing, the prosecutor provided to the Court an aide-memoire which was subsequently the subject of an agreed tender which identifies the principal locations and parts of the reticulation system at Naremburn. The tendered annotated map (the annotated map) is reproduced below at [26], and has assisted the Court in these reasons for decision.

[6]

Affidavit of Iain Fairbairn, Head of Wastewater and Environment, Sydney Water Corporation

The defendant read an affidavit of Mr Iain Fairbairn, head of wastewater and environment at the defendant, affirmed 9 May 2023. Mr Fairbairn was not required for cross-examination.
Mr Fairbairn deposed that he had responsibility and oversight of the defendant's staff who liaised with the prosecutor and other regulators during the time of the incident, and assisted with investigations conducted by the prosecutor subsequent to the incident. Mr Fairbairn deposed to being familiar with the defendant's policies, procedures and practices relating to the environment, and the management systems flowing from those policies, procedures and practices. Among those is the defendant's Environmental Management System (EMS) which is certified to international standard "Environmental Management System - ISO14001:2015", certification of which was annexed to Mr Fairbairn's affidavit, and which Mr Fairbairn said is monitored annually for its ongoing suitability, adequacy and effectiveness. Mr Fairbairn set out the corporate, group and operational levels at which the defendant monitors its environmental performance and compliance with relevant legislation and regulations through audits and inspections.
Mr Fairbairn deposed that the wastewater network operated by the defendant was constructed between 1888 and 2023, servicing approximately 5,161,000 people, and collecting and treating approximately 536 billion litres of wastewater annually. The sewer the subject of the incident is part of a system initially constructed between 1916 and 1930, comprising some 6,300 kilometres of pipes and still growing, servicing approximately 1,440,000 customers.
In relation to the defendant's response to the incident, Mr Fairbairn said that the defendant "took all reasonable and feasible actions to minimise harm to the environment and protect public health". Those actions included: 1. engaging internal and external specialists, including ecology and heritage consultants, to ensure the site clean-up and remediation activities were conducted in a manner that minimised environmental harm; 2. regularly communicating with the local community and providing alternate accommodation options to those residents directly affected by the response works; 3. providing regular updates and situation reports on the defendant's response, clean-up progress, water quality, pollution control and mitigation measures to the prosecutor, the Department of Health, and local councils; 4. continuing testing of the water quality and stream health after the incident: the defendant prepared a report titled "Naremburn Wastewater Overflow - Stream Health - Flat Rock Creek" (annexed to Mr Fairbairn's affidavit) which provided the results of the testing conducted one month and six months after the incident, concluding that "[a]nalysis of the rapid riparian assessment, long-term SIGNAL-SF and post incident SIGNAL-SG biotic index scores, and multivariate analyses suggests wastewater overflow from the incident in October 2020 has not had a lasting impact on the macroinvertebrate community structure in Flat Rock Creek"; and 5. undertaking an investigation of the incident and response to the incident, resulting in the defendant making improvements to its governing procedure for the work programming and reporting process and its decision framework for allocating resources. The defendant also reviewed its standards for asset valuation and condition assessment, and maintenance inspections programs to reassess asset prioritisation.

[7]

Summary of agreed facts

The following factual background is derived from the SOAF.
The defendant owns and operates the STS. The defendant holds environment protection licence No 378, issued under the POEO Act (the licence). The licence authorises the scheduled activity of "sewage treatment" at the STS.
The annotated map, identifying the principal locations and parts of the reticulation system at Naremburn, is reproduced below:

[8]

The locations and parts of the reticulation system at Naremburn

The locations and assets in the reticulation system at Naremburn identified in the annotated map are as follows: 1. Dawson Playground is a public playground located opposite 18 and 20 Dawson Street, Naremburn (Dawson Playground).1 There is a walking track with some stairs behind the playground which leads to Flat Rock Creek. 2. Flat Rock Creek is situated downhill from Dawson Playground, extending from Artarmon, through Naremburn to Tunks Park at Cammeray where it meets Long Bay, Middle Harbour. [1] The upper section of Flat Rock Creek is an ephemeral watercourse, part of a stormwater system consisting of a main concrete stormwater channel and a series of connecting underground stormwater pipes that captures flows from Artarmon, Willoughby, Naremburn and St Leonards. During wet weather, diluted sewage can overflow into the upper section of Flat Rock Creek from the Garland Road ERS and the Gaza Road ERS. The middle section of Flat Rock Creek is an open creek, situated to the north of Dawson Playground, before continuing east downstream. Overflows from the 225mm Sewer and the Playground Maintenance Hole entered Flat Rock Creek from this middle section. The lower section of Flat Rock Creek runs from the confluence of Flat Rock Creek and Quarry Creek to a weir under Long Gully Bridge into an underground stormwater tunnel at Tunks Park, and towards outlets under Mortlock Reserve to Long Bay in Cammeray. 3. Tunks Park is a public park in Cammeray which extends west from the foreshore of Long Bay under the Cammeray Suspension Bridge to Flat Rock Gully Reserve. 4. Long Bay and the wider Middle Harbour area is a "secondary contact" waterway used for recreational activities that have less frequent body contact with water, such as fishing and boating. 5. Both the Garland Road ERS and the Gaza Road ERS discharge into an underground section of Flat Rock Creek between Willoughby Road and to the east of Flat Rock Drive. [2] They are designed to discharge excess diluted sewage from the STS when the capacity of the system is exceeded due to wet weather infiltration. The Garland Road ERS and the Gaza Road ERS each includes a maintenance hole, an overflow weir and a discharge pipe which connects to the council stormwater network. The Garland Road ERS maintenance hole is located on the northern side of the roadway at Garland Road, approximately 15 metres east of the intersection with Willoughby Road. The Gaza Road ERS maintenance hole is located on a cycle way, approximately 27 metres due north of the end of Gaza Road. 6. The Playground Maintenance Hole is a maintenance hole located behind the Dawson Playground at or near Dawson Street. It is adjacent to the 225mm Sewer which allows access for inspection and maintenance. [3] 7. The 225mm Sewer is a circular 225mm buried, non-pressurised gravity reticulation sewer located at or near Dawson Reserve at Dawson Street, Naremburn (Dawson Reserve). [4] 8. The Dawson Street Maintenance Hole is a maintenance hole located 2 metres from the north-west corner of 24 Dawson Street (Dawson Street Maintenance Hole). [5] It was installed on 15 June 1910, and is at the junction of four sewers, including the 225mm Sewer and the Oviform Sewer, providing access for inspection and maintenance works. 9. The Oviform Sewer is a 533mm x 736mm oviform-shaped sewer main located at or near Dawson Street. [6] It was also installed on 15 June 1910, and is part of a submain that captures flows from Willoughby (Willoughby Submain). 10. The Grafton Avenue Maintenance Hole is a maintenance hole located in the middle of Grafton Avenue, opposite 16A Grafton Avenue (Grafton Avenue Maintenance Hole). [7] It allows access for inspection and maintenance and is downstream of the Oviform Sewer and the Dawson Street Maintenance Hole. 11. The Flat Rock Gully Walking Track is an unsealed walking track near Flat Rock Creek (Flat Rock Gully Walking Track). [8] One of its paths, the Dawson Street Track, is located behind Dawson Street and Dawson Playground, with a number of rock steps leading downhill toward Flat Rock Creek (Dawson Street Track). [9] 12. At the time of the incident, an excavation pit (the Excavation Pit) had been dug out by contractors of the defendant to allow access to the 225mm Sewer between the Playground Maintenance Hole and the Dawson Street Maintenance Hole for the purpose of repair works. [10]

[9]

Condition of the Dawson Street Maintenance Hole and the Oviform Sewer

At the time of the incident, the agreed condition of the Dawson Street Maintenance Hole was as follows: 1. The shaft and lower chamber were in poor condition, mainly as a result of poor construction and poor concrete quality. There was significant softening of the original surface to a 40 millimetre depth. Patches of bony concrete were present, and the exposed aggregate was loose and poorly bonded as a result of very little cementitious mix. Evidence of previous patch repairs was present. 2. A large void was present as a result of the partial collapse of the concrete capping and lower chamber surrounding the concrete pipe section. 3. The quality of mass concrete capping at the downstream face was poor. 4. The concrete benching was significantly eroded. At the downstream side, the benching and lower section of the chamber base was completely missing, with the upper portion of the pipe bulkhead suspended.
The Oviform Sewer, over 100 metres in length, runs between the Dawson Street Maintenance Hole (upstream) and the Grafton Avenue Maintenance Hole (downstream). The Oviform Sewer is 8.15 metres deep at the Dawson Street Maintenance Hole, and 20.89 metres deep at the Grafton Avenue Maintenance Hole.
At the time of the incident, the crown of the Oviform Sewer had collapsed into the void of the Oviform Sewer, within 2 metres of the Dawson Street Maintenance Hole.

[10]

The cause of the incident

The cause of the incident which occurred between 27 October 2020 and 30 October 2020, agreed between the prosecutor and the defendant, was as follows: 1. The incident occurred as a result of a blockage in the Oviform Sewer and the Dawson Street Maintenance Hole. This caused sewage to back up into and overflow from the 225mm Sewer and the Playground Maintenance Hole, as well as to back up to the Willoughby Submain to discharge from the Gaza Road ERS and the Garland Road ERS. 2. The blockage was a result of the Oviform Sewer partially collapsing within 2 metres of the Dawson Street Maintenance Hole and a portion of the Dawson Street Maintenance Hole also failing and collapsing, contributing to debris that was already present in the Oviform Sewer. 3. The partial collapse of the Oviform Sewer occurred due to a loss of structural integrity in the crown of the Oviform Sewer. This resulted in the crown collapsing in the void of the Oviform Sewer with mixed material from above the pipe. A portion of the adjacent Dawson Street Maintenance Hole also failed.

[11]

Rainfall during the period of the offences

There was rainfall during the period of the offences. The defendant operates two proximal rain gauges which recorded levels of rainfall at the time of the incident. Closer to the location of the incident was the rain gauge at Chatswood Bowling Club (Chatswood Gauge). Further from the location of the incident was the rain gauge near Taronga Zoo, Mosman (Mosman Gauge).
The following table, reproduced from the SOAF, summarises rainfall between 6:00pm on 25 October 2020 and 7:10pm on 30 October 2020, as recorded at the Chatswood Gauge and at the Mosman Gauge:

[12]

The defendant's actions during the period of the offences

On 26 October 2020 at about 6:00pm, after and during rainfall, sewage began to overflow from the 225mm Sewer and from the Playground Maintenance Hole.
On 27 October 2020: 1. Sewage overflowed from the Gaza Road ERS and from the Garland Road ERS. 2. From about 7:00am, staff from IPC Projects Pty Ltd, the sub-contractor engaged by Comdain Infrastructure Pty Ltd, contractor for the defendant, (IPC Projects) were present at the Playground Maintenance Hole and the Excavation Pit to carry out repair works to the 225mm Sewer and the Playground Maintenance Hole. Between about 7:00am to 8:30am, staff from IPC Projects observed sewage leaking from gaps in the side wall of the Playground Maintenance Hole chamber, discharging through the rock face adjacent to the Playground Maintenance Hole and filling the Excavation Pit. Sewage was subsequently observed to be discharging along the rock face for around 15 metres downstream of the Playground Maintenance Hole and below the Excavation Pit. 3. At about 8:54am, Mr Christian Groeneveld, site foreman of IPC Projects, called the defendant's emergency hotline to report that sewage was escaping from the Playground Maintenance Hole. 4. At about 9:00am, Mr Groeneveld called the defendant's contracts officer, Mr Tony Ciliegi, to notify him of the sewage overflows. Mr Groeneveld subsequently called Mr Kyle Wilson, from a contractor referred to as IC Pipes, to arrange a tanker to reduce flows in the sewer main and a jetter to clear the blockage in the sewer. From about 10:00am to 6:30pm, an IC Pipes truck was on site to perform tankering and jetting. 5. At about 10:58am, the defendant's first response "jetter" crew member, Mr Greg Smith, arrived at the Dawson Street Maintenance Hole. At this location, Mr Smith did not observe any sewage discharging and was advised by IPC Projects crew that he was not needed, so he left Naremburn without attending Dawson Playground, the Playground Maintenance Hole or the vicinity of the 225mm Sewer at this time. 6. At about 6:38pm, Mr Steven Dann from the defendant arrived at Dawson Reserve. Between about 6:38pm and 7:40pm, Mr Dann installed containment below the Excavation Pit, but that containment was washed away by high sewage flows. Between about 8:11pm and 9:30pm, Mr Dann installed signage and cordoning tape at the Flat Rock Gully Walking Track at both the top of the Dawson Street Track at the Dawson Playground, and at the end of Dawson Street. 7. At 9:19pm, the defendant declared the sewage overflow an "incident" and reported it to the EPA at 9:34pm.

[13]

Volume of sewage overflows during the period of the offences

Reproduced below is a summary from the SOAF of the overflows from each of the three discharge locations in relation to each of Offences 1 to 3: 1. Offence 1 caused an estimated discharge volume of 14,656kL, being 14,656,000 litres during the period 26 to 30 October 2020. 1. Offence 2 caused an estimated discharge volume of 704kL, being 704,000 litres during the period 27 to 29 October 2020. 1. Offence 3 caused an estimated discharge volume of 640kL, being 640,000 litres during the period 27 to 30 October 2020.

[14]

Harm caused to the environment as a result of the offences

The sewage discharged from the reticulation system was predominantly comprised of domestic residential wastewater including greywater and wastes excreta, urine and faecal bacteria. "Faecal coliforms" and "Enterococci" were used as faecal indicator organisms for pathogenic risk in recreation waters as they are present in high concentrations in sewage-contaminated environments relative to uncontaminated environments.
The Australian and New Zealand Guidelines for Fresh and Marine Water Quality 2000 (ANZECC Guidelines) and the Australian and New Zealand Guidelines for Fresh and Marine Water Quality 2018 (ANZ Guidelines) are used to assess water quality and levels of contaminants within waterways. When concentrations exceed the default guideline values (DGVs), also referred to as guideline trigger values (GTVs) in the ANZ Guidelines and ANZECC Guidelines, there is a risk of impact occurring, including adverse health or environmental impacts. There are separate GTVs in relation to primary recreational contact, such as swimming (primary contact), and secondary recreational contact, such as fishing (secondary contact).
The overflows charged in Offences 1 to 3 altered the chemical and biological characteristics of the receiving environment. This had the effect of degrading the waters of Flat Rock Creek to the foreshore of Long Bay, Middle Harbour (foreshore Middle Harbour) for a period of approximately 6 to 7 days.
In relation to Offence 1, the estimated 14,656,000 litres of sewage that overflowed from the 225mm Sewer and the Playground Maintenance Hole between 26 to 30 October 2020 caused a significant flow of sewage into Flat Rock Creek. The sewage discharged on 26 October 2020 was likely to have been diluted due to rainfall between 25 to 26 October 2020, with much less dilution in the discharge on 27 October 2020. It was agreed that sewage discharged on 29 October 2020 "would have been" diluted with some rainfall ingress to the sewer system, with the dilution lessening on 30 October 2020.
Offence 1 resulted in the pollution of the receiving waters with faecal coliforms and Enterococci for approximately 7 days at Flat Rock Creek, and 6 days at foreshore Middle Harbour. During those periods, as a result of Offence 1, the GTVs for faecal coliforms and Enterococci in relation to secondary contact were exceeded by: 1. between 8 to 5,038 times (faecal coliforms), and 16 to 4,779 times (Enterococci) in Flat Rock Creek; and 2. between 2.5 to 641 times (faecal coliforms), and 0 to 195 times (Enterococci) at foreshore Middle Harbour. These results were agreed, and recorded in tables annexed to the SOAF.

[15]

Relevant statutory provisions

The purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) are as follows: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.
The objects of the POEO Act set out in s 3 relevantly provide: 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, (e) to rationalise, simplify and strengthen the regulatory framework for environment protection, (f) to improve the efficiency of administration of the environment protection legislation, (g) to assist in the achievement of the objectives of the Waste Avoidance and Resource Recovery Act 2001.
The three offences to which the defendant has pleaded guilty are offences against s 120(1) of the POEO Act which provides: 120 Prohibition of pollution of waters (1) A person who pollutes any waters is guilty of an offence. Note - An offence against subsection (1) committed by a corporation is an offence attracting special executive liability for a director or other person involved in the management of the corporation - see section 169. (2) In this section - pollute waters includes cause or permit any waters to be polluted.

[16]

Objective seriousness of the offences

The objective seriousness of the offences is measured without reference to matters personal to the offender. It is to be determined wholly by reference to the nature of the offending. [11]
In determining the objective gravity or seriousness of the offences in this case, the circumstances to which I may have regard include: [12] 1. the nature of the offences; 2. the maximum penalty for the offences; 3. the harm caused to the environment by the commission of the offences; 4. the defendant's state of mind in committing the offences; 5. the defendant's reasons for committing the offences; 6. the foreseeable risk of harm to the environment by the commission of the offences; 7. the practical measures to avoid harm to the environment; and 8. the defendant's control over the causes of harm to the environment.
I am also required to take into account the statutory matters in s 241 of the POEO Act set out above at [59]. Some of these factors overlap with the factors concerning objective seriousness set out at [62] above.
In relation to the objective seriousness of the offences, the prosecutor referred to R v Kilic, [13] where the High Court said that a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the "spectrum" that extends from the least serious instances of the offence to the worst category. In R v Van Ryn, [14] the NSW Court of Criminal Appeal held that it is erroneous to fail to say anything at all about the objective seriousness of the offence.
The prosecutor also referred to the approach adopted by Robson J in Environment Protection Authority v Sydney Water Corp [2021] NSWLEC 17 (the Northmead decision) at [130] to [132], where his Honour said: 130. The prosecutor submits that the Offences each fall within the medium range of objective seriousness, having regard to the circumstances that led to the collapse of the inner wall and failure of the Pumping Station; the volume of sewage that was discharged; the foreseeability of the harm occurring; the temporal and special features of the harm; and the extent of Sydney Water's control over the harm (albeit recognising that the Offences were not committed intentionally, recklessly or negligently). 131. Sydney Water supports the submission that the Offences were within the medium range of objective seriousness, however for different reasons to the prosecution, including that the events were limited spatially and temporally, the foreseeability and control of the offending conduct, and the offending conduct in the context of the overall Incident. In oral submissions, Sydney Water submitted that the Second Offence must be considered at a lower level of objective seriousness than the First Offence, which I take to mean a mid to low level of objective seriousness. 132. Conscious that the task in which the Court is engaged is one of instinctive synthesis and not what may otherwise be described as two-staged sentencing, and that an assessment of objective seriousness referable to a notional point on a spectrum of culpability, despite being a convenient shorthand descriptor, is not a necessary component of the sentencing task, I consider that, on account of the objective factors noted above, each of the Offences is at the mid-range of objective seriousness for offences of this kind. However, the Second Offence is of less objective seriousness within that range than the First Offence.

[17]

Nature of the offences

In relation to the nature of the offences, in sentencing for environmental offences, a fundamental consideration is the degree to which, having regard to the maximum penalties provided in the statute, the offender's conduct would offend against the legislative objectives expressed in the statutory offence. [17] The nature of the provision creating the offence and its place in the statutory scheme shed light on the objective seriousness of the offence. [18] Ascertaining the purpose of creating an offence is assisted by consideration of the objects of the statute. [19]
The prosecutor submitted, and it is plainly correct, that the offence of water pollution plays an important role in giving effect to the objects in s 3 of the POEO Act. [20]

[18]

Maximum penalty for the offence

The maximum penalty for a statutory offence serves as an indication of the relative seriousness of the offence and a yardstick against which to measure the relevant features of the offence for which the defendant is to be sentenced. [21] Careful attention to maximum penalties will almost always be required because, amongst other things, they invite comparison between the worst possible case and the case before the court. [22]
Here, in the case of a corporation, the maximum penalty for each of the three offences against s 120(1) of the POEO Act, stipulated in s 123 of the POEO Act, is $1,000,000.

[19]

Harm caused to the environment by the commission of the offences; s 241(1)(a) of the POEO Act

The Dictionary to the POEO Act defines "harm" as follows: harm to the environment includes any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution.
The prosecutor submitted, and I accept, that "harm" in environmental offences includes both actual harm and potential harm. In Environment Protection Authority v Waste Recycling and Processing Corporation, [23] Preston CJ said: 145. Harmfulness needs to not only be considered in terms of actual harm, the potential or risk of harm should also be taken into account: Axer Pty Ltd v Environmental Protection Authority (1993) 113 LGERA 357 at 366 and Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 (6 February 2006) at [175]. Harm should not be limited to measurable harm such as actual harm to human health. It can also include a broader notion of the quality of life. 146. Harm can include harm to the environment and its ecology. Harm to an animal or plant not only adversely affects that animal or plant, it also affects other biota that have ecological relationships to that animal or plant: Bentley v BGP Properties Pty Ltd at [174]. 147. Harm can be direct or indirect, individual or cumulative. Activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernable direct harm to human interest, should also be treated seriously. 148. The culpability of the defendant depends in part on the seriousness of the environmental harm. Sentencing courts have exercised their discretion in relation to penalty on the principle that the more serious the lasting environmental harm involved, the more serious the offence and, ordinarily, the higher the penalty: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority at 701; 39. If the harm is substantial, this objective circumstance is an aggravating factor: s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 NSW. 149. The fact that the environment harmed by the offender's conduct was already disturbed or modified is not a mitigating factor: State Pollution Control Commission v White Wings Ltd (unreported, Land and Environment Court, NSW, Bignold J, No 50129 of 1991, 1 November 1991) at 4; Environment Protection Authority v Ecolab Pty Ltd (2002) 123 LGERA 269 at [14]; Environment Protection Authority v Coggins (2003) 126 LGERA 219 at [18]; Environment Protection Authority v Abigroup Contractors Pty Ltd [2003] NSWLEC 342 (15 December 2003) at [24]; Environment Protection Authority of New South Wales v Arenco Pty Ltd [2006] NSWLEC 244 (9 May 2006) at [26].

[20]

Offence 1, and harm caused to the environment

In relation to Offence 1, the prosecutor submitted that the extent of the harm to the environment caused by the offence was substantial. In Environment Protection Authority v Sydney Water Corporation [2015] NSWLEC 80 (the Malabar decision) Preston CJ at [62] considered that factors relevant to whether harm caused by the offences in that case was substantial included the nature of the pollutant, the volume of the pollutant, the number of days over which the pollutant was discharged, and interference with public amenity.
Here, the prosecutor submitted, Offence 1 involved a relatively large volume of sewage (14,656,000 litres), particularly when compared to the volumes of sewage discharged in previous EPA prosecutions of the defendant. In the Northmead decision, the discharged volume of sewage was 2,800,322 litres. In the decision of Moore J in Environment Protection Authority v Sydney Water (No 2) [2023] NSWLEC 2 (the Carramar decision), the prosecutor submitted that the discharged volume of sewage was approximately 1,100,000 litres. However, the prosecutor did not draw to attention that in the Carramar decision, while the total volume of discharge was approximately 1,103,000 litres, the volume of discharge that was subject to sentencing was only 282,000 litres. [24]
Further, in relation to Offence 1, the prosecutor referred to the following matters said to demonstrate substantial harm: 1. The harm in relation to Offence 1 took place over 6 to 7 days. 2. The GTVs for faecal coliforms and Enterococci (secondary contact) were exceeded by up to 5,038 times and 4,779 times respectively in Flat Rock Creek, and by up to 641 times and 195 times respectively at foreshore Middle Harbour. [25] 3. The incident was sufficiently serious to warrant: 1. installation of danger tape, warning signs and cordoning off; 2. customer advocate interactions with the public; and 3. relocation of 39 residents and 14 complaints.
The prosecutor relied on the agreed fact that the three offences resulted in: 1. Concentrations of ammonia which exceeded the DGVs for the 95 percent level of protection of species by: 1. between 0 and 15 times at Flat Rock Creek (freshwater) for approximately 5 days; and 2. between 0 and 3 times at Middle Harbour (marine waters) for approximately 4 days; and 1. Dissolved oxygen levels below the ANZECC Guidelines for slightly disturbed ecosystems in a lowland river in south east Australia for approximately 6 days around the area of Long Gully Bridge at the lower section of Flat Rock Creek near Tunks Park. At foreshore Middle Harbour, some measurements slightly below the ANZECC Guidelines for slightly disturbed ecosystems in a lowland river in south east Australia were recorded for approximately 3 days.

[21]

Offence 2, and harm caused to the environment

In relation to Offence 2, the prosecutor submitted that the extent of the harm to the environment that was caused by the offence was not insubstantial for the following reasons: 1. The volume of sewage overflow was 704,000 litres. 2. The GTVs for faecal coliforms and Enterococci (secondary contact) were exceeded by up to 242 times and up to 230 times respectively in Flat Rock Creek, and by up to 31 times and up to 9 times respectively at foreshore Middle Harbour.
The prosecutor accepted that the environmental harm caused by Offence 2 was less than that caused by Offence 1.
The defendant agreed that Offence 2 involved a discharge of 704,000 litres of sewage, and lasted over a period of 6 hours on one day, and just over 10 hours on the second. The impact on the receiving waters lasted some 4 days at the foreshore of Long Bay, Middle Harbour and 7 days at Flat Rock Creek. The tables annexed to the SOAF set out the relevant contamination figures for Offence 2.
I find, as shown in the agreed tables, that there was a significantly more limited impact of Offence 2 on the receiving waters, and that the receiving waters recovered from the discharge of sewage more expeditiously than they did in relation to Offence 1.

[22]

Offence 3, and harm caused to the environment

In relation to Offence 3, the prosecutor submitted that the extent of harm to the environment that was caused by the offence was not insubstantial, but was less that that caused by Offence 1 by reason of the following matters: 1. The volume of overflow was about 640,000 litres. 2. The GTVs for faecal coliforms and Enterococci (secondary contact) were exceeded by up to 220 times and up to 209 times respectively in Flat Rock Creek, and by up to 28 times and up to 9 times respectively at foreshore Middle Harbour.
The defendant submitted that Offence 3 concerned a discharge of 640,000 litres. It took place on 27 October 2020 for a period of 4.5 hours and on 29 October for just short of 10 hours. As with Offence 2, the harm was said to have lasted at the foreshore of Middle Harbour for 4 days and at Flat Rock Creek for 7 days. The tables annexed to the SOAF were said to demonstrate the impact of Offence 3 to be less than that of Offence 2.
I am likewise satisfied that the agreed tables show the impact of Offence 3 on the receiving waters to be less than the impact of Offence 2 on the receiving waters.

[23]

The defendant's state of mind in committing the offences

In determining the objective seriousness of the strict liability offences in this case, the circumstances to which the Court may have regard include the defendant's state of mind in committing the offence. [26] A strict liability offence, such as that against s 120 of the POEO Act, that is committed intentionally, negligently or recklessly will be objectively more serious than one that is not so committed. The prosecutor accepted that the defendant's breaches of s 120 of the POEO Act were inadvertent and not deliberate, and were not committed intentionally, negligently or recklessly.
The defendant, in turn, submitted (and the prosecutor accepted) that the offences were inadvertent and not deliberate, and that there was no basis for a finding of intention, recklessness or negligence on the part of the defendant. In any event, due to the principle in R v De Simoni, [27] the Court, it was submitted, is precluded from considering whether the offences were committed intentionally, recklessly, or negligently by reason of the existence of a more serious water pollution offence in s 116 of the POEO Act. [28] I accept that submission.
Consistently with the parties' submissions and the evidence, I find that the defendant's breaches of s 120 of the POEO Act were inadvertent and not deliberate, and were not committed intentionally, negligently or recklessly.

[24]

The defendant's reasons for committing the offences

There is nothing in the evidence which suggests anything untoward in the defendant's reasons for committing the offences. As Mr Fairbairn deposed, the sewer the subject of the incident is part of a system initially constructed between 1916 and 1930, comprising some 6,300 kilometres of pipes and still growing, and servicing approximately 1,400,000 customers. As I have found in relation to the defendant's state of mind, there is no basis for a finding of anything untoward in the defendant's reasons for committing the offence.

[25]

Practical measures taken to avoid harm to the environment; s 241(1)(b) of the POEO Act

In relation to practical measures to avoid harm to the environment, the prosecutor submitted that there were practical measures that could have been taken by the defendant to prevent, control or mitigate the harm that occurred as a result of the incident. The practical measures were submitted to be apparent from a consideration of the agreed causes of the incident, which causes are set out above at [31].
It was an agreed fact that there was a blockage in the Oviform Sewer and in the Dawson Street Maintenance Hole. The prosecutor submitted, and the defendant did not suggest to the contrary, that the blockages could have been the subject of practical investigation and practical timely maintenance.
It was also an agreed fact that the relevant blockage was a result of the Oviform Sewer partially collapsing and a portion of the Dawson Street Maintenance Hole failing and collapsing, contributing to debris that was already present in the Oviform Sewer. The clearing of debris was a practical measure that could have been taken. Again, the defendant did not suggest to the contrary.
I find that investigation of the causes of the debris that was present in the Oviform Sewer was a practical measure that could have been taken to avoid harm to the environment. Likewise, maintenance responsive to such investigation was another practical measure that could have been taken by the defendant. Again, the defendant did not suggest to the contrary. This is so particularly where, as here, it was an agreed fact that the relevant shaft and lower chamber of the Dawson Street Maintenance Hole were in poor condition as a result of poor construction and poor concrete quality.
Likewise, it was an agreed fact that the partial collapse of the Oviform Sewer occurred due to a loss of structural integrity in the crown of the Oviform Sewer (see above at [31(3)]). Investigation of the structural integrity and responsive maintenance were practical measures that could have been taken in relation to that part of the Oviform Sewer. Additionally, having regard to the timeline of actions, particularly those undertaken on 27 October 2020 (as to which see above at [35]), I find that the defendant could have reduced the environmental harm caused by the incident by commencing preventative and clean-up actions earlier.

[26]

The reasonably foreseeable risk of harm to the environment by the commission of the offences; s 241(1)(c) of the POEO Act

For harm to be foreseeable, the precise cause of an incident is not required to be foreseen. [29] Here, the prosecutor submitted, the question is not whether the defendant could have reasonably foreseen the "precise cause" of the collapse of the inner wall of the Oviform Sewer and the Dawson Street Maintenance Hole, or that the collapse would occur. Rather, the prosecutor submitted that the question is whether the defendant could have reasonably foreseen that the harm caused or likely to be caused to the environment would occur as a result of the collapse of the Oviform Sewer and the Dawson Street Maintenance Hole.
The prosecutor submitted that it was reasonably foreseeable to the defendant that harm would occur as a result of a failure of the Oviform Sewer and the Dawson Street Maintenance Hole. The defendant is the owner and occupier of the STS, and ought to be taken to have an extensive understanding of the relevant infrastructure. Further, it was agreed that at the time of the incident, repair works were already being undertaken on the Playground Maintenance Hole and part of the 225mm Sewer. Accordingly, the defendant was on notice as to the likelihood that maintenance or repair work might be needed on other of its cognate assets in the vicinity.
The defendant submitted that the collapse of the Oviform Sewer and the Dawson Street Maintenance Hole may have been relevant to foreseeability if the defendant were being sentenced for failing to maintain the Oviform Sewer and the Dawson Street Maintenance Hole in a proper and efficient condition, an allegation that was the subject of two charges which had been withdrawn by the prosecutor. In other words, the defendant submitted, if the defendant were being sentenced for those offences, it would have been open to the prosecutor to argue that Sydney Water could have foreseen the harm caused or likely to be caused to the environment by the failure to maintain the Oviform Sewer and the Dawson Street Maintenance Hole in a proper and efficient condition.
However, as the defendant submitted, and I accept, the defendant is not being sentenced for a failure to maintain the Oviform Sewer and the Dawson Street Maintenance Hole in a proper and efficient condition, but for its conduct in polluting waters contrary to s 120 of the POEO Act. The defendant accepted, and I find, that it was reasonably foreseeable that harm to the environment would likely be caused by the commission of the three offences against s 120(1) of the POEO Act.

[27]

The defendant's control over the causes of harm to the environment; s 241(1)(d) of the POEO Act

In relation to the defendant's control over the causes of harm to the environment, the parties agreed that: 1. the incident occurred as a result of a blockage in the Oviform Sewer and the Dawson Street Maintenance Hole; 2. the blockage was a result of the Oviform Sewer partially collapsing and a portion of the Dawson Street Maintenance Hole also failing and collapsing; and 3. the partial collapse of the Oviform Sewer occurred due to a loss of structural integrity in the crown of the Oviform Sewer.
The prosecutor submitted that as owner, occupier and user of the STS, the defendant was the person with the legal, physical and technical ability to undertake inspections that might have resulted in the identification of the degraded condition of the Oviform Sewer and undertake appropriate remedial action that may have averted the agreed causes of the incident. The defendant had control over the failure of the Oviform Sewer, as the owner and occupier of the STS. As the partial collapse of the Oviform Sewer caused the incident, the defendant had control over the cause of the incident which gave rise to the offences.
The defendant, Sydney Water, accepted that it had control over the causes that gave rise to the offences.

[28]

Conclusions in relation to the objective seriousness of the offences

[29]

Offence 1

Having regard to the matters set out above at [84] to [92], and the parties' submissions in relation to objective seriousness, I find that Offence 1 is in the mid-range of objective seriousness, a conclusion with which the defendant did not cavil.
Further, I accept the prosecutor's submission and find that consistent with the approach adopted by Robson J in the Northmead decision set out above at [65], Offence 1 lies at the upper end of the mid-range of objective seriousness. In so finding I have had regard, in particular, to the following: 1. the large volume of sewage discharged (namely, 14,656,000 litres), particularly when compared to the volumes of sewage discharged in previous prosecutions of the defendant (see above at [85]); 2. the environmental impact of the offence, including the significant exceedance of the GTVs and DGVs for faecal coliforms and Enterococci (secondary contact) (see above at [86]); 3. the period of 5 days over which the offence occurred, and the harm taking place over 6 to 7 days (see above at [89]); 4. while practical measures were undertaken by the defendant after the incident to minimise harm caused by the incident, prior to the incident the defendant could have undertaken preventative practical measures such as clearing of debris, investigations and maintenance (see above at [105] to [108]); and 5. while the offence was inadvertent and not deliberate, the defendant had control over the cause of the incident (see above at [102] and [120]).

[30]

Offences 2 and 3

Having regard to the matters set out at [93] to [96]; and [97] to [99] above, and the parties' submissions in relation to objective seriousness, I find, as submitted by the defendant, that Offences 2 and 3 are in the low-range of objective seriousness. In so finding, I have regard, in particular, to the following matters: 1. the lower volume of sewage discharged (see above at [70(1)]); 2. the shorter period over which the sewage was discharged (see above at [70(2)]); 3. the more limited environmental impact of the offences (see above at [70(3)]); 4. the fact that the offences were inadvertent and not deliberate (as was accepted by the prosecutor) (see above at [70(4)] and [100]); 5. the condition of the receiving environment (see above at [70(5)]); and 6. the practical measures which were taken by the defendant to prevent, control, abate and mitigate the environment harm (see above at [70(6)]).

[31]

Subjective circumstances of the offender

In relation to the subjective circumstances of the offender, the prosecutor submitted that the only aggravating factor in s 21A(2) of the CSP Act that may be relevant is "the injury, emotional harm, loss or damage caused by the offence was substantial". I have considered harm caused by the offences in my assessment of objective seriousness: at [84] to [99] above.
I have regard to the following subjective matters which are mitigating factors within s 21A(3) of the CSP Act.

[32]

Prior criminality (s 21A(3)(e) of the CSP Act)

In relation to prior criminality, the prosecutor submitted that this potentially mitigating factor was not available to the defendant in circumstances in which it was agreed that Sydney Water has a record of prior convictions for environmental offences. Key elements of those convictions (as agreed) can be summarised as follows: 1. On 1 February 2023, the defendant was convicted of one offence against s 120 of the POEO Act in relation to the overflow of at least 282,000 litres of sewage into Prospect Creek at Carramar: the Carramar decision (Moore J) (see above at [85]). 2. On 9 March 2021, the defendant was convicted of two offences against s 120 of the POEO Act in relation to overflows of approximately 2,800,000 litres of sewage into Toongabbie Creek: the Northmead decision (Robson J) (see above at [65]. 3. On 28 January 2021, the defendant was convicted of one offence against s 64(1) of the POEO Act, and one offence against s 91(5) of the POEO Act for failing to clean up an overflow of approximately 57,000 litres of raw sewage into an unnamed creek in Bangor: Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 4 (Pepper J) (the Bangor decision). 4. On 11 November 2020, the defendant was convicted of one offence against s 120 of the POEO Act, and one offence against s 64(1) of the POEO Act in relation to a sewage incident in the Lane Cove River, North Epping: Environment Protection Authority v Sydney Water Corporation [2020] NSWLEC 153 (Pain J) (the Lane Cove decision). 5. On 16 July 2020, the defendant was convicted of two offences against s 120 of the POEO Act and an offence against s 64(1) of the POEO Act in relation 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 (Pepper J) (the Mill Stream decision). 6. On 21 April 2015, the defendant was convicted of an offence against s 120 of the POEO Act and an offence against s 64(1) of the POEO Act in relation to an incident at the Malabar Waste Water Treatment Plant: the Malabar decision (Preston CJ) (see above at [84]. 7. On 21 July 2000, the defendant was convicted of an offence of pollution of waters contrary to s 16(1) of the then Clean Waters Act 1970 (Clean Waters Act) in relation to 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 (Lloyd J). 8. On 3 March 2000, the defendant was convicted of an offence of pollution of waters contrary to s 16(1) of the Clean Waters Act during the operation of its West Camden Sewerage Treatment Plant, causing about 7,000-8,000 litres of aluminium sulphate being discharged into a tributary of a creek: Environment Protection Authority v Sydney Water Corporation [2000] NSWLEC 80 (Sheahan J). 9. On 12 November 1998, the defendant was convicted of an offence against s 17D(9) of the then 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 condition: Environment Protection Authority v Sydney Water Corporation [1998] NSWLEC 144 (Talbot J).

[33]

Good character (s 21A(3)(f) of the CSP Act)

In relation to good character, the prosecutor submitted that it is relevant that the defendant has a number of prior convictions for similar offending.
The defendant submitted, having regard to the affidavit of Mr Fairbairn, that it is of good character. It submitted that it takes its environmental responsibility very seriously, closely monitoring its compliance with relevant legislation and regulations, continuously working to address and improve its environmental performance and striving to ensure that its processes are in line with best environmental practice within the industry. The programs in which the defendant has invested to sustain and enhance the environment (as to which see above at [20]), as well as the community's enjoyment of waterways were also said to demonstrate its good corporate character.
At the hearing, the prosecutor accepted that Mr Fairbairn's evidence provided a reasonable basis for a finding that Sydney Water is of good character. I so find. Such an approach is consistent with the approach taken by Robson J in the Northmead decision at [151].

[34]

Likelihood of reoffending (s 21A(3)(g) of the CSP Act)

The prosecutor submitted that the defendant's prior convictions for similar offences is a relevant factor in relation to the likelihood of reoffending.
The defendant submitted, referring to the evidence of Mr Fairbairn, that following a detailed investigation of the incident and a debrief of the incident response, it has made several improvements to its policies and procedures (see [16] to [18] above). The steps taken to improve its ability to recognise and address problems in its sewer network were said to demonstrate that the defendant takes very seriously its responsibility to ensure there are no pollution events in the future. It was submitted that the defendant has, amongst those steps listed above at [18], introduced an artificial intelligence CCTV program that will limit the time it takes to identify and respond to potential problems in the sewer system. It has installed around 10,000 sensors across its network to detect blockages in wastewater pipes which have already led to the early detection of more than 400 blockages. It has introduced a canine detection program to detect leaks and faults across the wastewater system, and invested in a root cutting program and a maintenance hole inspection program to reduce the risk of overflows from its wastewater networks.
Accordingly, the defendant submitted, the Court can be satisfied that the steps being taken are genuine, and that systemic changes are being implemented to drive environmental and cultural change. Mr Fairbairn's evidence that the defendant's introduction of its EPIP, referred to above at [17], has rendered consistent reductions in wastewater overflows.
At the hearing, Mr Leggat SC for the prosecutor said in relation to the likelihood of reoffending: Mr Fairbairn's evidence does provide a basis for optimism that the likelihood of reoffending is potentially lowered; however, notwithstanding Mr Fairbairn's evidence, on the basis of Sydney Water's prior convictions and taking into account the nature and the characteristics of the sewerage system that Sydney Water manages, and taking into account the existence legally of strict liability offences in relation to the ‑ if I might call it the aging system, the Court, in our respectful submission, would not find that Sydney Water is unlikely to reoffend. Therefore, that is not a mitigating factor for those reasons. That's a different approach to that which the defendant seeks, but that is the approach for our reasons I've given. Such an approach that I've just described is consistent with the approach of Robson J in the 2021 case at para 153 [31] and is also consistent with the approach of Moore J at para 58 in the 2023 judgment. [32]

[35]

Remorse shown by the offender (s 21A(3)(i) of the CSP Act)

Genuine remorse is a mitigating factor in sentencing 21A(3)(i) of the CSP Act, but only if: 1. the offender has provided evidence that he or she has accepted responsibility for his or her actions, and 2. the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both).
I find that the defendant genuinely regrets both the commission and the consequences of the three offences to which it has pleaded. That contrition and remorse is expressed by the defendant's highest officer, Mr Cheroux, its managing director, in an annexure to the affidavit of Mr Fairbairn (see above at [22]).
I also find that the defendant has demonstrated remorse by pleading guilty to the three offences. The defendant, through the affidavit of Mr Fairbairn and the annexed letter of Mr Cheroux, has accepted responsibility for its offending and confirmed its determination to avoid a similar occurrence in the future.
At the hearing, Mr Leggat SC, for the prosecutor, said: "We accept that Mr Fairbairn's evidence provides a reasonable basis for a finding that Sydney Water is contrite and has demonstrated remorse." I find accordingly.

[36]

Guilty pleas (ss 21A(3)(k), 22 of the CSP Act)

Section 22(1) of the CSP Act provides that a court must take into account whether, when and in what circumstances a defendant has entered a plea of guilty and may accordingly impose a lesser penalty than it would otherwise have imposed. The defendant entered pleas of guilty in relation to all three offences. However, the timing differs between Offence 1, and Offences 2 and 3.
In relation to Offence 1, the prosecutor submitted that matters relevant to s 22(1) are as follows: 1. the defendant has pleaded guilty; and 2. the summons was issued on 25 October 2021, and the guilty plea was entered on 24 February 2023.
I find that the defendant should have some benefit for the utilitarian value of entering of a guilty plea in relation to Offence 1, but not the maximum benefit as it cannot be said to have been entered at the earliest opportunity.
In relation to Offences 2 and 3, the prosecutor submitted that the matters relevant to s 22(1) are as follows: 1. the amended summons for each of Offences 2 and 3 was filed on 24 February 2023; 2. pleas of guilty were entered on the same day; and 3. there are no other relevant circumstances.
Accordingly, the prosecutor accepted that the defendant entered pleas of guilty to Offences 2 and 3 at the earliest opportunity.
The defendant entered pleas of guilty to each of the three offences on the same date, 24 February 2023. This has relieved the Court of the need to proceed to a four-week trial. The benefits to the administration of justice will be reflected in the discount applied in relation to the plea of guilty for each of Offences 1, 2 and 3.
In relation to Offence 1, I apply a discount of 10 percent. In relation to each of Offences 2 and 3, I apply a discount of 25 percent.

[37]

Assistance to authorities (s 21A(3)(m) of the CSP Act)

The defendant agrees, as is usual, to pay the prosecutor's costs in each of the proceedings. This ought be taken into account in determining the appropriate sentences. [33] However, the prosecutor submitted, and I accept, that an order for costs does not justify reducing a penalty to an amount lower than that suggested by the general pattern of sentencing for like offences. [34]
The prosecutor agreed that the defendant cooperated with the EPA at the time of the offences and over the course of the investigation into the offences. Mr Fairbairn deposed that the defendant provided "regular updates and situation reports that included information about [the defendant's] response and clean-up progress, water quality, pollution control and mitigation measures" to the prosecutor, the Department of Health, local councils, and other stakeholders during the incident (see above at [15(3)]).
Mr Fairbairn deposed that in his experience, "Sydney Water at all times strives to cooperate with regulatory authorities, including the EPA". I find, on the evidence before the Court in relation to this incident, that the defendant has consistently provided assistance to the authorities in the investigation of the offences.

[38]

Conclusions in relation to the subjective circumstances of the offender

In determining sentence for Offences 1 to 3, I find the following subjective circumstances to be taken into account as mitigating factors: 1. the defendant's good character, demonstrated by Mr Fairbairn's evidence in relation to the defendant monitoring compliance with relevant legislation and regulations, working to address and improve its environmental performance, striving to ensure its processes are in line with best environmental practice, and engaging in a number of environmental improvement and community projects (see above at [130] to [132]); 2. remorse shown by the defendant, in particular, by its highest officer (see above at [141] to [144]); 3. the defendant's pleas of guilty, particularly in relation to Offences 2 and 3, which were entered at the earliest opportunity (see above at [145] to [151]); and 4. the assistance provided by the defendant to authorities, to which the prosecutor agreed (see above at [152] to [154]).
I find the defendant's prior criminality and likelihood of reoffending to be neither mitigating nor aggravating factors on sentence. Having regard to the defendant's prior convictions in relation to similar offences, and what Mr Leggat for the prosecutor referred to as the defendant's "aging system", I could not find that the defendant will not reoffend in the future, despite there being a lower likelihood of the defendant reoffending.

[39]

Proportionality

It is a fundamental principle of sentencing that the sentence should not exceed what is proportionate to the gravity of the offence, having regard to its objective circumstances. [35] I have considered this principle in arriving at the sentence to be imposed for the three offences here.

[40]

Specific and general deterrence (s 3A(b) CSP Act)

Specific and general deterrence are enumerated as a purpose of sentencing in s 3A(b) of the CSP Act, which provides that the purposes for which a Court may impose a sentence include "(b) to prevent crime by deterring the offender and other persons from committing similar offences".
In the context of environmental offences, general deterrence is of particular significance. [36] It is the duty of the Court to send a powerful message. Persons will not be deterred from committing environmental offences by nominal fines. [37] By its sentence, the Court "show[s] its abhorrence of crimes against the environment and significant components of it", [38] and "promotes the achievement of ecologically sustainable development", including the "internalisation of external environmental costs." [39]
The prosecutor submitted that because the prohibition against water pollution is a critical aspect of the regulatory framework for environment protection established by the POEO Act, there is a need for general deterrence in the case of pollution offences. In Environment Protection Authority v Ballina Shire Council at [65]-[68], [40] Preston CJ considered general deterrence in the context of environmental offences as follows: 65. The sentence of the Court is an important denunciation of the conduct of the defendant. 66. The sentence must also serve as a public deterrent. 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 a light punishment will be imposed: R v Rushby (1977) 1 NSWLR 594 at 597-598. 67. 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 (27 September 2002) at [85] and [93]. 68. The deterrent effect of a fine must send an important message that laws requiring the conservation of the environment and compliance with approvals to carry out activities that may harm the environment, must be complied with. Also, the community must be satisfied that, by the Court's sentence, the offender is given his just desserts.

[41]

Denunciation and retribution (s 3A(a), (e), (f) of the CSP Act)

In accordance with s 3A(a), (e) and (f) of the CSP Act, I take into account retribution and denunciation as purposes of sentencing. A sentence represents "a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law". [42] Existing principles require many sentences to be retributive in nature. [43]
Here, I do not find that the sentences to be imposed need be retributive in nature. That is because I have found in the case of the incident, and the offences arising from it, that there is a need for special and general deterrence. There is nothing in the evidence before me which suggests a need for denunciation.

[42]

Even-handedness and consistency in sentencing

The consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence. [44] In seeking consistency, judges must have regard to what has been done in other cases which may establish a range of sentences which have been imposed. [45] However, that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. [46] The history stands as a yardstick against which to examine a proposed sentence: Hili at [54]; see the plurality referring to Simpson J in Director of Public Prosecutions (Cth) v De La Rosa (De La Rosa) at [304]. [47] 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". [48]
As the chief judge observed in Environmental Protection Authority v Ditchfield Contracting Pty Ltd (Ditchfield) at [72], [49] the more appropriate yardstick against which the sentence in that case should be compared was the penalty set by Parliament, rather than the amount of fines imposed in past cases.
Noting that every case turns on its own objective and subjective facts and circumstances, the prosecutor submitted that penalties imposed previously may assist here in determining consistent sentencing. The prosecutor annexed to its submissions a schedule summarising the main facts underlying and sentences imposed in the following cases: the Carramar decision; the Northmead decision; the Bangor decision; the Lane Cove decision; the Mill Stream decision; the Malabar decision; and three further decisions not concerning the defendant, Environment Protection Authority v Crown in the Right of New South Wales [2019] NSWLEC 178 (EPA v Crown); Environment Protection Authority v Hawkesbury City Council [2017] NSWLEC 39 (EPA v Hawkesbury); and Environment Protection Authority v Forbes Shire Council [2014] NSWLEC 26.
In the Carramar decision, Moore J found the defendant guilty of one offence against s 120(1) of the POEO Act for causing, between 14 January 2019 to 16 January 2019, approximately 282,000 litres of untreated sewage to overflow from a pumping station at Carramar directly into Prospect Creek. The offence occurred in the context of the defendant attempting to fix a broken rising main, from which approximately 821,000L of untreated sewage had overflowed onto land and into Prospect Creek. Moore J considered the offending conduct to be "toward, but not at, the lower end of the low range of conduct" falling within the scope of breaches of s 120 of the POEO Act (at [75]). His Honour imposed a total monetary penalty of $200,000, and ordered the defendant to pay the prosecutor's investigation costs in the amount of $14,645.80, and the prosecutor's legal costs as agreed or assessed.

[43]

Capacity to pay fine (s 6 of the Fines Act)

In exercising my discretion to fix the amount of a fine in relation to each and all of the three offences, I am required to consider: 1. such information regarding the means of the accused as is reasonably and practicably available to the Court for consideration, and 2. such other matters as, in the opinion of the Court, are relevant to the fixing of that amount. [51] There is no evidence before me on which I could find other than that the defendant has the capacity to pay a fine.

[44]

Totality principle

The totality principle requires that in imposing sentences for related offences, after calculating the appropriate sentence for each offence, the Court should consider whether the aggregate sentence imposed is just and appropriate having regard to the totality of the criminal behaviour. [52] The prosecutor acknowledged that the first, second and third offences all arose from the same incident, being the collapse of the Oviform Sewer and the Dawson Street Maintenance Hole, and that the criminal behaviour associated with each offence was causally, temporally and spatially linked. The prosecutor accepted that the totality principle applies to the penalty to be imposed here in relation to the three offences.
In accordance with the totality principle, I have considered the appropriate sentence for each offence and reviewed the aggregate to ensure that it reflects the total criminality of the defendant. [53]

[45]

Conclusions in relation to the appropriate penalty to be applied in relation to each of the offences

Synthesising the relevant objective and subjective circumstances of the offences and the offender, and considering the relevant purposes of sentencing, the maximum penalty now set by Parliament in the case of a corporation ($1,000,000 for each of the offences), the check or yardstick provided by the cases in this Court referred to at [170] to [182] above, in particular, the Carramar decision, the Northmead decision, and the Mill Stream decision, I consider that the appropriate monetary penalty: 1. for Offence 1 is $375,000; 2. for Offence 2 is $150,000; and 3. for Offence 3 is $150,000.
These amounts should be discounted by for the utilitarian value of the pleas of guilty: 1. in the case of Offence 1 by 10 percent; 2. in the case of Offence 2 by 25 percent; and 3. in the case of Offence 3 by 25 percent.
This results in a monetary penalty: 1. for Offence 1, in the amount of $337,500; 2. for Offence 2, in the amount of $112,500; and 3. for Offence 3, in the amount of $112,500.
Having regard to the totality principle, the circumstance that the three offences arose from the same incident and that the criminal behaviour associated with each offence was causally, temporally and spatially linked, I apply a further discount of 35 percent.
This results in a total penalty for the three offences in the amount of $365,625. I will make an order that 50 percent of that amount be paid to the Environmental Trust established under the Environmental Trust Act 1998 (NSW), pursuant to s 250(1)(e) of the POEO Act, for general environmental purposes, and the remaining 50 percent be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996 (NSW).

[46]

Payment of share of fine to prosecutor (s 122 Fines Act)

The prosecutor seeks an order than one half of any monetary penalties imposed on the defendant be paid to the prosecutor under s 122 of the Fines Act 1996 (NSW) (Fines Act). Section 122 of the Fines Act applies where "the Act imposing or authorising the imposition of a fine or other penalty does not make any provisions for its application when recovered", and "the prosecutor is not a police officer": s 122(1). In this case, section 122 applies because the POEO Act does not make any provision for the application of a fine once recovered by the courts, and the prosecutor is not a police officer.
Section 122(2) of the Fines Act relevantly provides that "the court before which proceedings are taken to recover any such fine or other penalty may direct that such portion of it (not exceeding one-half) is to be paid to the prosecutor". The court before which proceedings "are taken to recover" a fine refers to the court which has power to impose the fine. An order may be made under s 122(2) at the time the fine is imposed. [54]
The prosecutor submitted, and I find, that the making of an order under s 122 of the Fines Act is appropriate to compensate the prosecutor for the time spent investigating the offences and to "support the sustaining, on a more general basis, of environmental law enforcement activities of the prosecuting authority". [55] It would not represent a "windfall gain" to the prosecutor even if it were to be separately compensated for its professional costs. [56]

[47]

Costs

In relation to costs, the defendant did not oppose an order to pay the prosecutor's costs in each of the proceedings, as agreed or assessed. I have taken this into account in determining the appropriate penalties. [57] I note, however, that an order for costs does not justify reducing a penalty to an amount in relation to the offences lower than that suggested by the general pattern of sentencing for like offences. [58]

[48]

Publication order and notice to affected persons

The parties agreed on the form of publication orders and the terms of a publication notice, reproduced at Annexure A to these reasons for decision, and a notice to affected persons, to be provided to occupiers of premises surrounding the location of the incident, reproduced at Annexure B to these reasons for decision.

[49]

Orders

I make the following orders: 1. In proceedings 2021/302715, the defendant is convicted of the offence against s 120(1) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) as charged. 2. In proceedings 2021/302716, the defendant is convicted of the offence against s 120(1) of the POEO Act as charged. 3. In proceedings 2021/302718, the defendant is convicted of the offence against s 120(1) of the POEO Act as charged. 4. In proceedings 2021/302715, the defendant is to pay a monetary penalty in the sum of $219,375. 5. In proceedings 2021/302716, the defendant is to pay a monetary penalty in the sum of $73,125. 6. In proceedings 2021/302718, the defendant is to pay a monetary penalty in the sum of $73,125. 7. Pursuant to s 250(1)(e) of the POEO Act, 50 percent of the monetary penalty imposed on the defendant in orders 4, 5 and 6 is to be paid to the Environmental Trust established under the Environmental Trust Act 1998 (NSW). 8. Pursuant to s 122(2) of the Fines Act 1996 (NSW), the remaining 50 percent of the monetary penalty imposed on the defendant in orders 4, 5 and 6 is to be paid to the prosecutor. 9. Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW) (CPA), the defendant is to pay the prosecutor's professional costs of these proceedings in an amount as agreed or assessed under s 257G of the CPA. 10. Pursuant to s 250(1)(a) of the POEO Act, the defendant, at its expense, is to: 1. within 28 days of the date of these orders, cause a notice of size 139mm x 129mm to be published within the first 12 pages of The Sydney Morning Herald (or as close to the first 12 pages as can be accommodated having regard to the editorial requirements of the newspaper) with the Sydney Water Corporation logo (of reasonable size) and the text as set out in Annexure A to these orders; 2. within 28 days of the date of these orders, cause a notice of size 70mm x 129mm to be published within the first 12 pages of The Daily Telegraph (or as close to the first 12 pages as can be accommodated having regard to the editorial requirements of the newspaper) with the Sydney Water Corporation logo (of reasonable size) and the text as set out in Annexure A to these orders. 1. Pursuant to s 250(1)(a) of the POEO Act, the defendant, at its expense, is to: 1. within 14 days of the date of these orders, publicise the offences and the orders made against it by posting on its Facebook wall the text as set out in Annexure A to these orders, together with Photograph 22 of Annexure F to the Statement of Agreed Facts filed in these proceedings on 4 May 2023 and a hyperlink directly to the Court's judgment as published on the New South Wales Caselaw website, and tagging the Environment Protection Authority in the post. The post is to be made between the times of 8.00am and 10.00am 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 7 days; 2. within 14 days of the date of these orders, publicise the offences and the orders made against it by tweeting the following text (subject to any technical limitations of the Twitter platform) from its Twitter account: @SydneyWaterNews was prosecuted by @NSW_EPA and convicted of polluting waters following an overflow of about 16 million litres of sewage at Naremburn in 2020. Flat Rock Creek and the foreshore of Long Bay, Middle Harbour were polluted for about 6-7 days. Fined $365,625. The tweet must be made between the times of 8.00am and 10.00am 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 7 days. The Environment Protection Authority may tag Sydney Water's Twitter account in any Environment Protection Authority tweets about the judgment; and 1. within 14 days of the date of these orders, publicise the offences and the orders made against it by posting Photographs 17 and 24 of Annexure F to the Statement of Agreed Facts filed in these proceedings on 4 May 2023 with the words "Sydney Water convicted of polluting waters" in bold text inserted over the top of the first photograph on its Instagram account (subject to any technical limitations of the Instagram platform), with the following caption: @sydneywater was prosecuted by @NSW_EPA and convicted of polluting waters following an overflow of about 16 million litres of sewage at Naremburn in 2020. Flat Rock Creek and the foreshore of Long Bay, Middle Harbour were polluted for about 6-7 days. Sydney Water was fined $365,625 and ordered to publish this post. Sydney Water apologises to the community for these sewage discharges and has implemented actions in an effort to prevent recurrence of the circumstances leading to the offences. #sydneywater #environment #pollution #guilty #NSWEPA #Naremburn #Cammeray #MiddleHarbour #willoughbycouncil #northsydney The post must be made between the times of 8.00am and 10.00am or between 4.30pm and 6.30pm on a weekday. This post must remain on its Instagram account for a minimum of one month. 1. Within 7 days of the date of publication of the notices referred to in Orders 10 and 11, the defendant must provide the prosecutor a complete copy of the notices as published pursuant to those orders. 2. Pursuant to s 250(1)(b) of the POEO Act, the defendant must, at its expense, within 14 days of the date of these orders, cause a notice in the form of Annexure B, at a minimum size of A4 and on the defendant's letterhead, to be placed in the mailboxes of all properties (including but not limited to residential and commercial properties) at: 1. Dawson Street, Naremburn NSW 2065, 2. Grafton Avenue, Naremburn NSW 2065, 3. Marks Street, Naremburn NSW 2065, 4. Hamilton Avenue, Naremburn NSW 2065, 5. Market Street East, Naremburn NSW 2065, 6. West Street, Naremburn NSW 2065, 7. Cliff Avenue, Northbridge NSW 2063, and 8. The Boulevarde and Rowlison Parade, Cammeray NSW 2062. 1. Within 7 days of delivering the notice pursuant to Order 13, the defendant must provide the prosecutor with a complete copy of the final notice as delivered to each of the specified properties.

[50]

Annexure A (58655, pdf) Annexure B (72965, pdf)

[51]

Endnotes

Number 10 on the annotated map at [26].
Number 8 on the annotated map at [26].
Numbers 5 and 6 on the annotated map at [26].
Number 4 on the annotated map at [26].
Number 3 on the annotated map at [26].
Number 2 on the annotated map at [26].
Number 1 on the annotated map at [26].
Number 11 on the annotated map at [26].
Number 12 on the annotated map at [26].
Number 7 on the annotated map at [26].
Number 9 on the annotated map at [26].
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27] (Muldrock) (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34 (Bentley) at [163] (Preston CJ); Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 (Plath) at [48] (Preston CJ); Fairfield City Council v Oztech Developments Pty Ltd; Fairfield City Council v Bellagio Investments Pty Ltd [2021] NSWLEC 81 (Oztech Developments) at [57] (Robson J).
(2016) 259 CLR 256; [2016] HCA 48 at [19] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[2016] NSWCCA 1 at [130], [133], [141] (R A Hulme J, Leeming JA and Johnson J agreeing).
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 (Markarian) at [36]-[37] (Gleeson CJ, Gummow, Hayne and Callinan JJ), [51] (McHugh J), [137] (Kirby J).
Markarian at [37] (Gleeson CJ, Gummow, Hayne and Callinan JJ) quoting Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [75] (Gaudron, Gummow and Hayne JJ).
R v Peel [1971] 1 NSWLR 247 at 262 (Herron CJ, Manning JA and O'Brien J); Garrett v Williams (2006) 160 LGERA 115; [2006] NSWLEC 785 at [89] (Preston CJ).
Bentley at [168]-[172] (Preston CJ).
Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 (Rae) at [15] (Preston CJ); Environment Protection Authority v University of Sydney [2022] NSWLEC 41 at [29] (Pain J).
Environment Protection Authority v Baiada Poultry Pty Ltd (2008) 163 LGERA 71; [2008] NSWLEC 280 (Baiada Poultry) at [23] (Preston CJ).

[52]

Amendments 05 July 2023 - Corrected link in DOCX version. 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: 05 July 2023

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