EPA v Waight

PROSECUTOR Mr D Buchanan SC with Mr D J Galpin Solicitors Environment Protection Authority DEFENDANT 16/10/2000-17/11/2000 LEGAL REPRESENTATIVES: Mr B Preston SC with Dr S Pritchard Solicitors Heidtman & Co On 29/01/2001 Mr Waight - in person On 9/02/2001 and 12/03/2001 Mr J Laucis, Barrister Solicitors Nil

IN THE LAND AND Matter Nos: 50019, 50020, ENVIRONMENT COURT 50021 and 50022 of 1999 OF NEW SOUTH WALES Coram: Sheahan J 22 June 2001

This judgment concerns two serious criminal charges to which the defendant lodged late pleas of guilty. Two "backup" charges have not been proceeded with.

The main function of the court in this judgment is to deal with questions of conviction and appropriate penalty. In this regard, counsel for the defendant (Mr Preston SC) conceded that this was not an appropriate case for the exercise of the court's discretion under s 10 of the Crimes (Sentencing Procedure) Act 1999 (T1224), and counsel for the prosecutor (Mr Buchanan SC) consistently argued that a term of imprisonment was the only appropriate sentence to impose in this case (T1284 L42-3).

On or about 18-19 May 1998, one or more large rain events, or storms, in the Glenorie/Forest Glen area north-west of Sydney, struck a partially completed enlargement of an embankment, on the downstream side of an earthen farm dam, at the top of a gully, on a property owned by the defendant Waight and his wife.

Material came away from the "soil and rubble" embankment, and/or associated structure(s), and was deposited on the land, and in a "creek", below. There are conflicting theories as to the engineering detail of such "collapse" - turning largely on whether it was the face of the "batter", or the base or "toe" of the embankment, or a combination of the two, which actually came away, and/or caused the deposit below. There is also a dispute between the parties to the proceedings as to the true nature of the dam enlargement project.

Some fairly prompt remediation works were undertaken, mainly mechanical and manual removal of materials from the "creek", but these also caused some disturbance of the "creek" and its environs.

The dam, the embankment works, and the creek below were all on Waight's land, and he was in charge of the works, which were the subject of, firstly, a development consent ("DC") from Baulkham Hill Shire Council ("BHSC"), and, later, some consent orders made in class 4 proceedings in this court (matter 40176 of 1995), which amended the terms of the DC.

Waight has remained on bail throughout the hearing and consideration of the matter, following orders made by Talbot J on 20 May 1999.

After 20 hearing days, over 5 weeks between 16 October and 17 November 2000, I had the benefit of a comprehensive site inspection on Monday 20 November 2000, and detailed written submissions. During the hearing counsel provided also some valuable "aide-memoires" to assist me in finding my way through, and evaluating, the enormous amount of material in evidence.

On 16 November 2000, the day upon which he made his oral submissions, the prosecutor had filed Notice of Motion seeking, pursuant to s 14 of the Environmental Offences and Penalties Act 1989 ("EOPA"), detailed and particular orders for remediation works ("s 14 orders") to be performed by the defendant. When the hearing concluded on 17 November 2000, I adjourned the matter to Friday 9 February 2001 for the delivery of judgment, and I stood that Notice of Motion over for hearing on a date to be fixed, after 1 December 2000, granting leave for the parties to notify the Registrar of any agreement reached between them on the form of such s 14 orders.

On 17 January 2001 the prosecutor advised the Registrar that agreement had not been reached regarding the s 14 orders, and arrangements were made for the matter to be relisted before me on 29 January 2001.

On 24 January 2001 Waight's solicitor on the record filed a notice of ceasing to act, and Mr Waight represented himself on 29 January. Confronted by the tender of some documentation he steadfastly maintained he had not seen beforehand, regarding the negotiations his former solicitor had had with the prosecutor regarding the s 14 orders, Waight asked for an adjournment, and the matter was stood over to 9 February 2001. On that occasion Mr Laucis of counsel appeared for Waight on a "pro bono" basis. Having just come into the matter, he sought a further adjournment to prepare submissions, and an alternative set of draft s14 orders, in response to the EPA's Notice of Motion, and the matter was again adjourned, to 12 March 2001.

On 12 March 2001 further evidence was presented, relevant to the s 14 matters, and judgment was again reserved, but no date was fixed.

On 8 April 1999 Waight was charged with four offences arising out of these and relevant preceding events. Two of the charges were tier 1, and the other two tier 2, under the EOPA.

Waight entered and maintained pleas of not guilty to all four charges until the scheduled commencement of their defended trial on Monday 16 October 2000, but on that date he entered, and the court later accepted, pleas of guilty in the two Tier 1 matters, Nos. 50019 and 50020 of 1999, respectively charges under s 5 and s 6 of the EOPA.

Matter 50019 refers to environmental harm caused by the actual construction of the embankment, up until and including 18 May 1998, and 50020 refers to environmental harm which flowed from its collapse on or immediately after 18 May 1998.

In 50019 the actual charge is that: Between about 1 August 1997 and about 18 May 1998 , at or near Lot 204, Old Northern Road, Glenorie in the State of New South Wales, he committed an offence … in that without lawful authority he negligently disposed of waste in a manner that harmed the environment, in contravention of section 5(1) of the EOPA . (emphasis added). (1 August 1997 was nominated because the moratorium on the need to have various Waste Act licences expired 31 July 1997).

In 50020 the actual charge is that: Between about 1 October 1997 and about 19 May 1998 , at or near Lot 204, Old Northern Road, Glenorie in the State of New South Wales, he committed an offence … in that without lawful authority he negligently caused a substance to escape in a manner which harmed the environment , in contravention of section 6(1) of the EOPA . (emphasis added). (1 October 1997 was nominated because an important geotechnical inspection of the subject earthworks took place on 30 September 1997).

Although the defendant pleaded guilty to the two tier 1 offences, no agreement could be reached on the relevant facts, and virtually every aspect of the prosecutor's case on penalty was contested by the defence.

The guilty pleas represent admissions of every element of each of the two tier 1 offences charged, namely lack of lawful authority, criminal negligence, and the fact of harm to the environment, but not admissions of each and every particular of each charge.

The summonses in matters 50019 and 50020 also sought orders for costs, and such orders pursuant to s 14 of the EOPA (i.e. remediation orders) "as the court in its discretion sees fit to make".

The defendant maintained his pleas of "not guilty" to the two tier 2 "back-up" charges, which have not been proceeded with, and no order for the prosecutor's costs in regard to them has been sought. Those matters, 50021 and 50022 of 1999, respectively involved charges of: (i) occupying a " controlled waste facility " without a licence, daily on and from about 4 November 1997 until about 18 May 1998, and (ii) polluting " clean waters ", namely Little Cattai Creek, on or between 18-19 May 1998.

Key dates relevant to the charges October 1977 Waight and his wife purchase the subject property. 10 November 1994 Waight first consults psychiatrist, Dr Graham Altman. 30 November 1994 BHSC issues a notice to Waight regarding his alleged use of unauthorised fill on the subject property. 16 December 1994 Waight lodges a development application (" DA "), and then negotiates with Council during January 1995. 24 February 1995 BHSC grants development consent for " dam enlargement ", on conditions. 29 September 1995 BHSC commences class 4 proceedings (matter No.40176 of 1995) against Waight and his wife, and obtains an interlocutory injunction restraining further work on Waight's project. 13 February 1996 Waight gives undertakings to the court that he will receive no more fill and will perform some remedial work. 12 August 1996 BHSC and Waight agree upon consent orders , which are then made by Talbot J, requiring the project to be completed within three years under expert supervision. 30 July 1997 Moratorium on need for Waste Act licences expires. 4 November 1997 EPA officers learn of the landfill/dam enlargement operation. 8 May 1998 Council issues an order to Waight to " stop work ", pending a geotechnical appraisal of progress with the enlargement of the dam wall. 15 May 1998 EPA serves a notice requiring Waight to cease receiving waste. 18-19 May 1998 Serious rainfall event results in partial collapse of the dam wall . 29 May 1998 EPA executes a search warrant at Waight's home. 31 August 1998 EPA gives Waight a notice under s 65(1) of the Waste Minimisation and Management Act 1995 (" Waste Act "). March 1999 The supervised construction works are completed. 1 April 1999 EPA gives Waight a notice under s 27A of the Clean Waters Act 1970 (" CW Act "). 8 April 1999 These charges are laid. 11 August 2000 Waight and his wife sell the subject property. The particulars given to support the Tier 1 charges

The summons in 50019, to which I will refer as the "negligent construction" charge, includes the following particulars:

Particulars of waste (a) Refuse from building or demolition work, including whole and broken bricks, soil, sand, broken cured concrete, concrete blocks, road base, bitumen, timber, reinforcing steel, glass fragments, leaves, seeds, unformed wood and plastic; (b) Garbage, including concrete blocks, steel drums, plastic, polystyrene foam, discarded clothing and beer cans; (c) The materials in (a) and/or (b), or any of them, that were discarded, rejected, unwanted, surplus and/or abandoned substances; and, or in the alternative, (d) The materials in (a) and/or (b), or any of them, or any of them in combination, that were deposited in the environment (a bushland gully north-east of an unnamed, west and south-west flowing tributary of Little Cattai Creek, Lot 204 and the tributary) in such volume, and/or constituency, and/or manner as to cause an alteration to that environment.

Particulars of manner (a) Causing or permitting the tipping of waste from trucks on Lot 204, including: (i) into the bushland gully on the property; (ii) in positions where the waste rolled, seeped, leached, or was otherwise introduced into the unnamed tributary of Little Cattai Creek flowing at the base of the bushland gully; and, or in the alternative, (b) Causing or permitting waste tipped from trucks on Lot 204, to be pushed over the crest of the bushland gully, so that it rolled down the gully and in some cases entered the unnamed tributary of Little Cattai Creek. Particulars of harm to the environment (a) Placing or otherwise introducing matter onto Lot 204, in the bushland gully and its surrounds, causing direct and/or indirect alteration of the environment, with the effect of degrading it, including by: (i) smothering and killing vegetation; (ii) modifying and destroying habitat for fauna; (iii) changing the appearance of the bushland gully and its surrounds, namely from a naturally vegetated landscape to a filled landscape; (iv) introducing offensive smells, namely a hydrocarbon smell and an organic composting type odour; and, or in the alternative, (v) causing or facilitating the termination of weed species; (b) Causing the emission into the air of odours, namely a hydrocarbon smell and an organic composting type odour; (c) Placing or otherwise introducing matter into the waters of an unnamed tributary of Little Cattai Creek: (i) so that the physical, the chemical and, or in the alternative, the biological condition of the waters was changed; (ii) so that the physical, the chemical and, or in the alternative, the biological condition of the waters was changed with the effect of degrading the environment; (iii) so that the change in the condition of the waters made or was likely to make the waters unclean, noxious, poisonous or impure, poisonous to aquatic life, or animals in or around the waters; (iv) that was of a prescribed nature, namely inorganic matter, including soil, earth, mud, stones and sand; and, or in the alternative, (v) that was of a prescribed nature, namely scrap metal, glass, junk, plastics, and, or in the alternative, rubbish; (d) Placing or otherwise introducing matter into the waters of an unnamed tributary of Little Cattai Creek causing direct or indirect alteration of the environment, with the effect of degrading it, including by (i) modifying and destroying habitat for fauna; (ii) causing or facilitating the germination of weed species; (iii) changing the appearance of the creek, namely from a natural creek to a creek containing the matter; and, or in the alternative, (iv) introducing offensive odours in the creek, namely the smell of hydrocarbons; (e) Placing or otherwise introducing matter into the surrounds of an unnamed tributary of Little Cattai Creek causing direct or indirect alteration of the environment, with the effect of degrading it, by causing or facilitating the germination of exotic plant species; and, or in the alternative, (f) Placing or otherwise introducing matter into the bushland gully, the unnamed tributary of Little Cattai Creek and/or their surrounds causing direct or indirect alteration to the environment, with the effect of degrading it, by adversely affecting its heritage values. Particulars of matter See particulars of "Waste" above. Particulars of negligence (a) Disposal of the waste without any or any adequate sediment controls; (b) Disposal of the waste particularised in the manner particularised; (c) Disposal of the waste particularised in such a manner (namely the manner particularised) that a reasonable person in the position of the Defendant could have foreseen that it would be likely to harm the environment (in the ways particularised); and, or in the alternative, (d) Disposal of the waste particularised in the manner particularised and, in particular, in a landfill of large size in close proximity to a watercourse, namely the unnamed tributary of Little Cattai Creek.

The summons in 50020, to which I will refer as the "negligent escape" charge, includes the following particulars:

Particulars of substance (a) Refuse from building or demolition work, including whole and broken bricks, soil, sand, broken cured concrete, concrete blocks, road base, bitumen, timber, reinforcing steel, glass fragments, leaves, seeds, unformed wood and plastic; and, or in the alternative (b) Garbage, including concrete blocks, steel drums, plastic, polystyrene foam, discarded clothing and beer cans; Particulars of manner A part of the batter of the landfill on Lot 204 collapsed and flowed downhill and downstream into the unnamed tributary of Little Cattai Creek and its surrounds. Particulars of harm to the environment (a) Placing or otherwise introducing matter into the waters of the unnamed tributary of Little Cattai Creek: (i) so that the physical, the chemical and, or in the alternative, the biological condition of the waters was changed; (ii) so that the physical, the chemical and, or in the alternative, the biological condition of the waters was changed with the effect of degrading the environment; (iii) so that the change in the condition of the waters made or was likely to make the waters unclean, noxious, poisonous or impure, poisonous to aquatic life, or animals in or around the waters; (iv) that was of a prescribed nature, namely inorganic matter, including soil, earth, mud, stones and sand; and, or in the alternative, (v) that was of a prescribed nature, namely scrap metal, glass, junk, plastics, and, or in the alternative, rubbish; (b) Placing or otherwise introducing matter into the waters of an unnamed tributary of Little Cattai Creek causing direct or indirect alteration of the environment, with the effect of degrading it, including by: (i) smothering and killing plants; (ii) modifying and destroying habitat for fauna; (iii) creating anoxic conditions; (iv) causing the formation of iron oxide and iron oxide deposits; (v) causing the formation of hydrogen sulphide gas; (vi) causing or facilitating the germination of exotic plant species; and, or in the alternative, (vii) changing the appearance of the creek, namely from a natural creek to a creek containing the matter, and, or in the alternative, (c) Placing or otherwise introducing matter in the surrounds of the unnamed tributary of Little Cattai Creek, causing direct or indirect alteration of the environment, with the effect of degrading it, including by: (i) smothering and killing vegetation; (ii) modifying and destroying habitat for fauna; (iii) changing the appearance of the surrounds, namely from a natural bushland area to an area containing the matter; and, or in the alternative, (iv) causing or facilitating the germination of exotic plant species. Particulars of matter See "Particulars of substance" above. Particulars of negligence (a) construction of unstable batter of the landfill; (b) construction of batter of landfill by loose dumping/end tipping of materials rather than by construction of horizontal layers, from the bottom up; (c) construction of batter of landfill from the substances particularised above rather than materials having an appropriate particle size for each layer; (d) construction of the landfill without any or any adequate filter or transition zones; (e) construction of the landfill without any or any adequate temporary diversion works or spillway; (f) construction of the landfill without any or any adequate stripping of vegetation and loose natural ground beneath the fill; (g) construction of core zone of the landfill from material other than compacted clayey fill; (h) construction of the batter of the landfill so that the slope of the downstream face was greater than 35o; (i) failing to compact or to adequately compact the matter used to construct the batter of the landfill; (j) failing to conduct any or any appropriate compaction tests; (k) carrying out major landfill construction works without the supervision of a geotechnical engineer; and, or in the alternative, (l) construction of the landfill in such a way that a reasonable person in the position of the Defendant could have foreseen that it would be likely to collapse in heavy rain.

The EOPA relevantly provided, in respect of the offences charged, as follows: 4(1) "environment" includes all aspects of the surroundings of human beings, including: (a) the physical factors of those surroundings, such as the land, the waters and the atmosphere, and (b) the biological factors of those surroundings, such as animals, plants and other forms of life, and (c) the aesthetic factors of those surroundings, such as their appearance, sounds, smells, tastes and textures. "harm" , in relation 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 foregoing, includes: (a) any act or omission that results in air pollution, within the meaning of the Clear Air Act 1961, and (b) any act or omission that results in the pollution of any waters, within the meaning of the Clean Waters Act 1970. " waste " means: (a) effluent, being any matter or thing, whether solid or liquid or a combination of solids and liquids, which is of a kind that may be removed from a septic tank, septic closet, chemical closet, sullage pit or grease trap, or from any holding tank or other container forming part of or used in connection with a septic tank, septic closet, chemical closet, sullage pit or grease trap; or (b) trade waste, being any matter or thing, whether solid, gaseous or liquid or a combination of solids, gases and liquids (or any of them), which is of a kind that comprises refuse from any industrial, chemical, trace or business process or operation, including any building or demolition work; or (c) garbage, being all refuse other than trade waste and effluent.

4(3) For the purposes of this Act, a substance is not precluded from being waste merely because it may be refined or recycled.

5. Disposal of waste without lawful authority (1) If a person, without lawful authority, wilfully or negligently disposes of waste in a manner which harms or is likely to harm the environment: (a) the person, and (b) if the person is not the owner of the waste, the owner, are each guilty of an offence.

6. Leaks, spillages etc (1) If a person, without lawful authority, wilfully or negligently causes any substance to leak, spill or otherwise escape (whether or not from a container) in a manner which 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.

8. Penalty for Tier 1 offences A person who is guilty of an offence against this Division is liable to a penalty not exceeding $1,000,000 in the case of a corporation or, in any other case, $250,000 or 7 years imprisonment, or both.

9. Matters to be considered in imposing penalty In imposing a penalty for an offence against this Act, the court is to take into consideration (in addition to any other matter the court considers relevant): (a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence, and (b) the practical measures which may be taken to prevent, control, abate or mitigate that harm, and (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, and (d) the extent to which the person who committed the offence had control over the causes which gave rise to the offence, and (e) whether, in committing the offence, the person was complying with orders from an employer or a supervising employee. 10A. Onus of proof concerning lawful authority The onus of proving that a person had lawful authority (as referred to in sections 5, 6 and 8F) lies with the defendant.

11. Nature of proceeding for Tier 1 offences … (3) If proceedings are brought in the Land and Environment Court, the maximum penalty that the Court may impose for the offence is, notwithstanding any other provision of this Act, $1,000,000 in the case of a corporation or, in any other case, $250,000 or 2 years imprisonment, or both.

14. Orders for restoration, prevention and compensation (1) In addition to imposing a penalty for an offence arising under Division 1 or 2 of Part 2, a court may order the person convicted to take such steps as are specified in the order, within such time as is so specified (or such further time as the court on application may allow), to prevent, control, abate or mitigate any harm to the environment caused by the commission of the offence or to prevent the continuance or recurrence of the offence. (2) In addition to imposing a penalty for an offence arising under Division 1 or 2 of Part 2, a court may, where it appears to the court that: (a) a public authority has incurred costs and expenses in connection with the prevention, control, abatement or mitigation of any such harm, or (b) a person (including a public authority) has, by reason of the commission of the offence, suffered loss of or damage to property or has incurred costs and expenses in preventing or mitigating, or in attempting to prevent or mitigate, any such loss or damage, order the person so convicted to pay to the public authority or person the costs and expenses so incurred, or compensation for loss of or damage to property so suffered, as the case may be, in such amount as is fixed by the order. (3) An order made by the Land and Environment Court under subsection (2) is enforceable as if it were an order made by the Court in Class 4 proceedings under the Land and Environment Court Act 1979.

Section 9 above has now been re-enacted as s 241 of the Protection of the Environment Operations Act ("POEO") Act 1997.

At all material times, Michael Waight and his wife Rita owned, as joint tenants, and resided upon, a property of some 16.58ha (41 acres), known as lot 204 in Deposited Plan 75209, and located on the western side of Old Northern Road, at Forest Glen near Glenorie ("lot 204").

Lot 204 is located 15km north of Dural in the local government area of Baulkham Hills Shire Council and zoned Rural 1(b) under Baulkham Hills Local Environmental Plan 1991 ("the LEP" - Exhibit P135). In that zone "agriculture" is permissible without consent, "dams" are permissible only with development consent, and "waste disposal" is "advertised development", which requires a development application to be advertised before it is considered by Council.

The Waights bought lot 204, originally in the name of a family company, in October 1977, and went to live on it in 1978. They transferred it into their own names in May 1980, and had "cleared and fenced" it by1981. They built their permanent home on it 1981-83. Electricity was connected in 1982. Waight appears to have worked the subject land full-time 1978-81 (T1210).

They completed the sale of lot 204 on 11 August 2000 to Maha Budhi Company Pty Ltd for $925,000 (M. Waight affidavit pp 80ff), and it is now used as a "monastery" (T1252). Full particulars of these proceedings were provided to the purchaser.

The Maroota Crown Lands are located to the west of lot 204, and they cover a large area of land (4,000-4,500ha or 40-45km2), with high natural heritage values like a national park.

On lot 204 there are springs, tiny feeder creeks, and a series of small gullies. Lot 204 occupies a "head of catchment" position on an unnamed natural watercourse, which is fed from an area close to Old Northern Road, and flows intermittently in a direction, generally east to west, at the foot of the relevant gully in which the embankment central to these charges was constructed. That gully runs generally north to south downhill. Although it was dammed because it is itself a natural watercourse, I will refer to it as the/a "gully", and to the unnamed watercourse at its base as the/a "creek".

The unnamed creek then runs into the Maroota Lands, where it joins Little Cattai Creek some 4.2km downstream. Little Cattai Creek flows into the Broadwater Wetland, and then feeds into the Hawkesbury-Nepean river system at Ebenezer. The waters of Little Cattai Creek have enjoyed a reputation for being potable. (Smith, affidavit 16 September 1998, par 28).

Lot 204 and those creeks allegedly damaged by the incidents involved in the charges are generally described by one expert witness (White, affidavit 16 April 1999, pars 5, 6 and 9) in these terms: 5. The area in which the creeks are located consists of a dissected part of the Hornsby plateau. The top of the plateau consists of horizontal layers of Hawkesbury sandstone with a general elevation of between 200 and 215 metres above sea level. The small feeder creeks descend quickly over a series of sandstone steps to a level of about 160-170 metres above sea level, where the secondary creeks form. The watercourses for the secondary creeks are not steep and descend very slowly as they travel horizontally across major sandstone strata. 6. The Glenorie sites that I examined were fairly typical of sites on the upper Hornsby plateau. The general elevation was over 200 metres above sea level. The erosion of the Hawkesbury sandstone layers has produced an intricate series of small gullies that contain numerous tiny feeders creeks that descend quickly to the base level where secondary creeks form. As the primary creeks are on steep slopes, there are few sites where water can be retained for long periods. In general, water is available in rocky pools in the watercourses or as seepage across less permeable sandstone layers. These features mean that large pools of water do not exist in the primary watercourses. Any pool that is present is small and many are transient. … 9. The four surveyed creeks are part of the upper headwaters of Little Cattai Creek. They receive most of their run-off from the main north-south ridge that carries Old Northern Road, although minor flows appear to come from several smaller transverse spurs. The north-south ridge-top has been partly developed, with a mixture of light industry and low density, semi-rural residential dwellings …

Defence witness Paul Anink carried out a detailed survey/study of the creek system of which the relevant gully and creek form part. Figure 3 in his affidavit was adopted by both the prosecutor and defence counsel to deal with the evidence in this hearing, and a copy of it is attached to this judgment as Annexure "A". The court notes the relative steepness of the country at each extremity of that plan.

The relevant embankment enlargement works were carried out on the gully Anink calls Creek "MN", and the dislodged materials affected the creek he calls "ME".

A series of creeks join ME downstream of its confluence with MN. Most of the alleged effects on ME occurred within the boundaries of lot 204. ME's confluence with MN occurs at a point 12,950m upstream of the Hawkesbury River. The groundwater course of waters from springs near the house on lot 204 is referred by Anink as "creek" MW, and it meets ME a short distance downstream from the MN/ME confluence. A short distance further downstream (at 12,820m) MS meets ME.

Just upstream from the MS/ME confluence is a large natural rockledge across ME, and, just downstream from that confluence, a gross pollutant trap has now been erected (approximately on the boundary of lot 204). Further downstream ME is joined by creek NN (at 12,2770m from the Hawkesbury). Further downstream again creek SS joins ME (at 11,920 from the Hawkesbury). ME, so augmented, joins Little Cattai Creek (at 8,990m), and Little Cattai Creek then meets the Broadwater Swamp (at 8,170m).

On the questions of environmental harm, the length of ME from the "toe" of the dam wall, as it now exists, to the natural rockledge has been referred to during the hearing as Phase 1, the length of ME from the rockledge to the gross pollutant trap as Phase 2, and the length from that trap to the NN/ME confluence as Phase 3.

It is alleged by the prosecutor that, prior to the construction of the subject embankment, the unnamed creek and its surrounds were in "pristine" condition. On behalf of the defence, Anink disputes that the affected areas were truly "pristine". However, they were the home for rare and threatened native plants; and they provided habitat for tree frogs, two of which are on the "vulnerable" list, and one of which was found to occupy the land (the Red Crowned Toadlet). Three regionally significant native mammals - wombat, koala and glider - were also found there. The Little Cattai Creek area displayed rich biodiversity, whether truly "pristine" or not.

The threshold for proving the harm element required for a conviction for such offences is quite low, but quite substantial environmental harm is alleged here, largely because of the material used to construct the embankment, and because its failure essentially "dammed" the unnamed intermittent "creek" at its base. It is further alleged that substantial environmental harm also resulted when the material smothered habitat, and destroyed some of the "riparian zone".

In his written closing address (pp 48-49), Mr Buchanan particularised the environmental harm, alleged by the prosecutor to have been sustained by the affected area and its creek system, in these terms: Summary of harm to the environment for s.5(1) offence Mr Waight's construction of the landfill embankment harmed the environment in the following ways - (a) Creek ME was polluted with fill material and hydrocarbons; (b) native vegetation was smothered and killed in the riparian zone in Creek ME by fill material extending too far down the bushland gully; (c) native vegetation was smothered and killed in the bushland gully by the landfill extending too far laterally in the gully; (d) frog habitat, including that of the Red Crowned Toadlet, was destroyed in the area of the embankment toe; and (e) macroinvertebrate habitat was destroyed in the area of the embankment toe. Summary of harm to the environment for s.6(1) offence The landslide and erosion that Mr Waight caused on 18/19 May 1998 harmed the environment in the following ways - (a) Creek ME was polluted with fill material, hydrocarbons, organochlorine pesticides and excessive deposits of iron oxide; (b) native vegetation was smothered and killed in the riparian zone of Creek ME downstream of embankment toe; (c) exotic species were introduced into the riparian zone of Creek ME requiring bush regeneration work over a number of years for distances of up to 2 kilometres downstream of the embankment toe; (d) frog habitat was destroyed in Creek ME for a period of time and whilst there has been colonisation by 'tolerant' species, the threatened Red Crowned Toadlet has not returned to Creek ME downstream of the embankment; (e) macroinvertebrate habitat was destroyed in Creek ME upstream of the confluence of Creek MS. The macroinvertebrate fauna was still far poorer than expected at the date of the last thorough survey in November 1998.

In their early years on lot 204, the Waights farmed/bred vegetables, geese, chickens, guinea fowl and cattle dogs (R Waight affidavit, pars 6 & 10), and then cattle (up to 12 head) and nectarines (600 trees), from about 1985 and 1991 respectively, until the onset of drought and bushfire, especially in the years 1991-94.

The defence claims that the Waights were anxious to improve the water supply to the house, the garden, the orchard, and the stock troughs, by increasing the capacity of an existing farm dam, and that this was the defendant's only or major motivation for undertaking the relevant works on the dam.

A fairly major farm dam had been constructed close to the top of the relevant gully on lot 204, apparently about 10 years before the Waights bought the property in 1977, and it was bisected, into what I will call the "North" and "South" dams, by the construction of a "driveway" from Old Northern Road to their house in 1982. The North dam is sometimes referred to as the "silt (entrapment) dam", and the South dam as the "(sole) water storage dam", and the North dam drains clean water into the South dam through two 150mm pipes. Defence witness Joliffe suggested that the total catchment area draining to the South dam is 4.1ha.

The dam which the Waights chose to enlarge, and which is now the subject of these charges, is the South dam. In 1984 Waight put an electric pump in that dam to move water around to various points on the property, and in 1991-92 he set up an irrigation system from the dam for the orchard, the garden, and the cattle trough. (Mrs Waight is a keen and noted gardener).

The subject embankment was designed as an addition to the gully (southern) side of the South dam, to increase its capacity.

There was some suggestion in the evidence that it would have been better for farm water supply purposes if Waight had sought to enlarge the North dam, rather than the South dam. His motives for choosing the South dam were questioned by the prosecutor, but Waight contends that he was advised against developing the North dam, by the man who built the original dam (one Jim Saunders), apparently because of a sandstone "fault" in the North dam's floor, and he chose to accept that advice. The expert evidence on both sides indicates that that "difficulty" does exist, but could be easily overcome.

The prosecutor alleges that the purpose of enlarging the embankment of the dam was to receive waste for profit, rather than to enlarge the dam to hold farm water.

It is asserted that Waight has failed to comply both with the 1995 DC, and with the court's August 1996 consent orders. Suffice it to say that the allegations are that it was negligent to place the waste where he did, to do so in the way in which he did, and to do so without adequate sedimentation and other controls or precautions.

In general terms, the assertions in the charges are that the embankment was not built to the J&K specifications, that the embankment spread outside its approved design footprint, that it was not properly compacted, that it was not built in such a way that its toe finished above the creek, that it was not reasonable of the defendant not to build it in such a way as it would withstand such a rainfall event, and that the defendant did not have any excuse, as a result of it being "under construction", when he had to revise plans for it in May 1998.

The prosecutor alleges that, by late 1997, the defendant was operating a profitable landfill at the subject site, and that it had become his dominant activity. The embankment by then had the same attributes as had led to the Council's 1995 class 4 proceedings. The toe had been established at the stipulated level (RL 52?), but was overwhelmed by the sheer quantity of fill material, largely demolition waste. Yet the defendant failed to consult his geotechnical "supervisor", as required by the DC and the court's orders, until BHSC expressed its renewed concerns in May 1998.

The prosecutor also alleges that: (i) the defendant's choice of the southern dam over the northern dam was driven by profit rather than water needs. (ii) the defendant's method of tipping showed more interest in getting waste in, than building a good dam wall. (iii) the defendant's inclusion of garbage tip type waste was not consistent with the fill appropriate for a properly constructed dam wall. (iv) as an experienced project manager and " environmental consultant ", the defendant must have been aware that he was not complying with the DC, as modified by orders of this court. (v) that the defendant told his customers (e.g. Sam Emerzidis) that lot 204 was a tip, and sent out documents, calling it a tip or waste facility, and boasting about the competitiveness of his fees.

The prosecutor relied upon the evidence of 51 witnesses.

For simplicity I will now group them and outline their evidence briefly, for easy understanding, and relation of their respective roles in the case.

The first group of witnesses comprises EPA Officers involved in the investigation: (1) Leslie Johnston (Affidavits 24 September 1998, 5 February 1999 and 8 March 2000), is a mechanical engineer with substantial landfill experience. He visited the site on 4, 7, 11 and 19 November 1997, and on 8 and 27 May 1998, held several discussions, and took a number of photographs (see also Exhibit P12 and Exhibit P13 taken 4 November 1997).

Of his first inspection on 4 November 1997, he said (24 September, par 8):

I considered there was some danger if I were to go down to the bottom of the batter on this occasion because of falling waste.

On 7 November 1997, Waight said to him (24 September, par 13):

The Court gave orders which said I had to use certain types of demo waste to get the strength out of the dam.

On 19 November 1997, Waight said to him (24 September, par 18):

I have had legal advice which says I don't need a waste licence. I am making this dam bigger so I have enough water for my cattle and fruit trees. … I'm using the dam for agricultural purposes and don't need a licence.

In his affidavit of 8 March 2000, Johnston expresses the following views:

12. … the Michael Waight landfill was considered by me to present an unacceptably high level of risk because of: (a) its construction in a watercourse; (b) no evidence of provision of upslope surface water runoff diversion; (c) the hay bale structure in the watercourse below the landfill was not of sufficient capacity; (d) lack of facility for total capture of leachate, that is, capture of surface runoff that has come into or was likely to have been in contact with waste; (e) no provision of low permeability layer below waste or leachate (as groundwater) collection system; and (f) potential for contaminated soil to be disposed of at the site without operator being made aware. … 15. The landfill at Michael Waight's property did not have the necessary surface water management system to control the entry of pollutants caused by surface water runoff from landfilling activities. The landfilling activity had similarities with the Eastern Creek Racecourse landfill in that waste was being deposited above the ground surface. The risk of water pollution from the Michael Waight landfill was even greater than that from Eastern Creek Raceway because the waste was being deposited in an intermittent watercourse to form a dam wall without any surface water runoff storage dam.

(2) Christopher Bowles (Affidavit 9 October 1998), is a science graduate with landfill regulation experience, who visited the site on 19 November 1997, then on 8, 22 and 29 May, 23, 28 and 31 July, and 4 September 1998, and took photographs and soil samples. Bowles was involved in the execution of a search warrant on 29 May 1998, during which visit he took video footage ( Exhibit P4 ).

Of his inspection on 19 November 1997, Bowles said (par 7):

During the course of the inspection I saw that the fill material consisted of a mixture of excavated material (soil, clay etc) and demolition type waste (broken up cured concrete, bricks etc). There were two men and a small bulldozer on site. It was obvious that fill material had been progressively tipped on the surface of the filled area, and the bulldozer had been used to progressively push this material over the top of the fill batter into the gully below. I was reluctant to walk too close to the top of the fill batter where the surface appeared to be very soft.

Bowles' photographs of 8 May 1998 show the extensive fill then on site.

(3) Jan Dekker (Affidavit 17 November 1998) is a science graduate in a management role in the Waste Section of the EPA. He visited the site on 8 May 1998, issued a notice to Waight on 15 May 1998 to cease receiving waste, and later issued notices to him under the Waste Act ( Exhibit P137 , 31 August 1998), and CW Act ( Exhibit P138 , 1 April 1999).

(4) David Taylor (Affidavits 9 November 1998 and 27 October 2000), is a science diplomate with extensive landfill experience, who visited the site on 16 and 22 May 1998, and was the senior EPA officer on the site when the search warrant was executed on 29 May 1998. He was also involved in surveillance of the site on 23 July 1998, and in the taking of video footage on 16 May 1998 ( Exhibit P2 ) and 22 May 1998 ( Exhibit P3 ).

(5) Danielle Playford (Affidavits 9 October 1998 and 26 October 2000), is a science graduate employed in the Waste section of the EPA. She visited the site on 16, 23, 24 and 29 May 1998 and was involved in taking some of the video footage ( Exhibit P2 , 16 May, and Exhibit P4 , 29 May), and in the execution of the search warrant, being responsible for compiling the folder of documents obtained on the search ( Exhibit P21 ).

(6) Stephen Durrington (Affidavit 27 October 2000), is a Senior Regional Operations Officer, based at Penrith in 1998, who attended the site on the execution of the search warrant on 29 May 1998.

(7) Marina Slavez (Affidavit 27 October 2000), is a financial auditor and chartered accountant, who audits landfills to ensure that waste levies remitted to the EPA are accurate and complete, and was involved in the execution of the search warrant on 29 May 1998.

(8) Taylor , Playford and Slavez also gave oral evidence, largely regarding events at lot 204 during the execution of the EPA's search warrant (T327-339). 57. The second group of witnesses comprises BHSC Officers:

(9) Peter Zadeian (Affidavit 24 February1999), Council's Strategic Planning Co-ordinator, gave evidence about:

(i) Council notices to Waight dated 30 November 1994 and 11 June 1998; (ii) Council's granting of Development Consent 94/679 on 24 February 1995; (iii) Council's class 4 proceedings against Waight (Matter 40176 of 1995); (iv) visits to lot 204; and (v) various meetings and correspondence regarding lot 204.

Waight allegedly told Zadeian he would not disturb the south-eastern area of lot 204 but during the fill operations he appears to have constructed a sub-standard alternative access for trucks.

Relevant contents of Council's files are annexed to Zadeian's affidavit, but there is no evidence as to whether or not the original dam was the subject of any DC.

Zadeian also gave oral evidence (T222-233), in particular reference to Council's liaison with the EPA, a meeting with Waight on 8 May 1998, and a relative lack of contact between Council and Waight before that meeting regarding any concerns Council had with his works on the site.

(10) David Savage (Affidavit 8 April 1999), was a development control officer 1994-1996. He swore an affidavit on Council's behalf in matter 40176, and gave evidence of his observations of lot 204 in 1994 and 1995, annexing numerous photographs he took. Savage gave an estimate of the amount of fill on the site as at 29 September 1995 (see ' J ' in Annexure " A " to his April 1999 affidavit). Also, when Savage visited the site on 5 September 1995 he found Waight in an " agitated " state after falling " over the edge of the fill on my tractor ".

(11) John May (Affidavit 17 March 1999), is a development control officer since 29 July 1996, and gave evidence of several inspections of lot 204, between 19 March 1997 and 10 June 1998, and of a meeting with Waight at Council's offices on 8 May 1998.

(12) Stuart Nunn (Affidavit 31 March 1999) is a public health surveillance officer employed by Council since November 1997, who visited lot 204 on several occasions, and took a series of photographs during a visit on 2 March 1998, when he " decided it was not safe to descend further down the landfill embankment " beyond a ledge " about one third of the way down " (par 3).

58. The third group of witnesses comprises the EPA's Surveyor and Technical witnesses: (13) Thomas Nicholson (Affidavit 24 August 1998), (14) Andrew Sloot (Affidavit 26 August 1998), and (15) Paul Fameli (Affidavit 17 September 1998) are all geophysicists employed by Coffey Geosciences Pty Ltd. They were engaged by the EPA, and/or by the EPA's consultant expert, Dr Pells, to carry out seismic refraction studies of lot 204 on 28 July 1998, to " determine the natural profile ". Coffey submitted its report dated 21 August 1998 to the EPA (Annexure " B " to Fameli), and it was used by Dr Pells to prepare his evidence. Sloot deposes to:

(i) observing on 28 July 1998 " white smoke " emerging from augur holes he made, (ii) to detecting that the ground near those holes was " warm to the touch ", and, (iii) to experiencing " a noticeable foul odour … I would associate with the smell of a rubbish tip " (pars 8-9). (16) Andrew Swane (Affidavits 31 August 1998 and 28 November 1998) is a registered surveyor, employed by Proust and Gardner, who collaborated with the Coffey on-site studies, and then considered Coffey's report, inter alia, in carrying out survey work for the purpose of estimating the relevant volumes of fill, whether they were present on the site, and/or slid into the creek.

He first visited the site on 29 May 1998 and located approximately 90% of the fill material in these two categories, but " the extent of the fill on the site [was] actually greater than the area that I was able to survey " (31 August, par 4).

On 10 June 1998 he surveyed the site in relation to the Australian Height Datum. From all the data obtained on these two visits, and on 28 July 1998, he prepared plans " APS1 " and " APS2 " (in Exhibit P24 ). After considering the draft Coffey report he prepared " APS3 " ( Exhibit P24 ). By comparing those plans he prepared " APS4 " ( Exhibit P24 ), " showing depth of fill material ", and " volume of fill on the site ". He said (31 August par 11): The figure I calculated was 90,000 cubic metres. I believe that this may underestimate the volume of fill on the site, because: · I was not able to locate the entire quantity of fill in my survey on 29 May 1998; and · some of the levels taken around the edge of the fill were on filled material, rather than on the natural surface. This means that in some instances, the base level used is higher than the natural level and some fill has been excluded from the calculation.

In respect of fill material in the creek, he said (31 August, par 12): When I carried out survey work on 29 May 1998, I surveyed an area in which it appeared that part of the fill material had slid further into the creek on the property. When I carried out survey work on 28 July 1998, a part of the fill that had slid into the creek had been removed (' the exposed creek area' ). I surveyed this area and included the levels in the plan of the base level which is marked 'APS 3". I calculated the quantity of fill that was in this section of creek on 29 May 1998, by the same method I used to calculate the total quantity of fill on the site. The volume of fill in that was in the exposed creek area on 29 May 1998 was 1550 cubic metres. However, there is considerably more fill that slid into the creek that is not included in this calculation.

In his later affidavit Swane deposed to carrying out additional survey work on 23 October 1998 "for the purpose of locating any section of creek upstream of the toe of the batter of the landfill and preparing a locality plan of the site". He, in fact, prepared two locality plans, and a transparency to overlay aerial photographs of lot 204 ("APS5", "APS6" and "APS7" in Exhibit P25). (17) Stephen Lellyet (Affidavit 16 April 1999) is a very senior meteorologist with the Bureau of Meteorology, and he deposed to rainfall records at the Bureau's Glenorie Station 6km from Forest Glen between 1 and 21 May 1998. The Bureau records rainfall only in 24 hour periods. Rain fell during each 24 hour period to 9am on 16, 17, 18, 19 and 20 May 1998 with 126.0mm recorded in the 24 hours to 9am on 19 May 1998. Lellyett says that rainfall of this intensity occurs in this location about once in every two to five years. In the 48 hours to 9am on 19 May 184.0mm of rain fell - such rainfall occurs about every 5 years.

(18) Roger Riley (Affidavit 18 May1999), is an experienced senior hydrographer with " Australian Water Technologies " and provided relevant rainfall data for Mr LePlastrier's work.

(19) Philip Pells and (20) Barry LePlastrier are both consulting civil engineers, whose evidence, in report form on affidavit, and oral, will be referred to in greater detail later in this judgment.

Pells filed three affidavits, dated respectively 8 October 1998, 6 May 1999, and 29 September 2000. Reports separately tendered were dated 2 September 1998 (Exhibit P26) and 27 October 2000 (Exhibit P127). He was first engaged 28 May 1998 as principal of Pells Sullivan Meynink Pty Ltd. He is an expert in slope stability analysis. (His oral evidence is at T613-654).

LePlastrier is an expert in water flow modelling and hydrology studies. His only affidavit is dated 13 May 1999. His first inspection on 8 April 1999 involved the taking of photographs. (His oral evidence is at T655-664).

59. The fourth group of witnesses gave evidence regarding the arrangements for the taking, nature and amount of fill taken to the site: (21) Mark Vaughan (Affidavit 5 July 1999 and oral evidence T257-307) is a director of GCJF Services Pty Ltd. He met Waight in 1994 and he personally, his company and his employees, were very much involved in the relevant taking, depositing and dispersion of fill between late 1996 and about April 1998. I will return to his evidence later in this judgment. (See also Exhibits P14-P20 ).

(22) Warren Birkinshaw (Affidavit of 21 January 1999, and oral evidence T248-251) is a qualified civil engineer, formerly employed by Ku-ring-gai Council to manage the construction of all Council's road and drainage works and to locate sites for disposal of fill material from such civil construction works. He contacted Waight in early 1997 and inspected lot 204 in mid 1997, in the knowledge that it was owned by Waight, and noting " an active tipping area " and a " long and steep " batter of the landfill.

He obtained details of Waight's BHSC development consent (" DC "), the consent orders, and the J&K specifications, and then concluded an arrangement with Waight's company Neligh Holdings Pty Ltd and Vaughan's company GCJF Services Pty Ltd to tip Council's waste material at lot 204. Vaughan was nominated as the " facility operator ".

Birkinshaw deposed (par 8) that Council's " fill material was predominantly a mix of clay, soil, roadbase, concrete and asphalt " from Council's Gordon depot, and that it was transported in "a bogie truck with a dog trailer, which together carry about 23 tonnes ". He produced invoices for 341 loads (7843 tonnes) in 1997-98 and cheque records for payments to Neligh Holdings totalling $43,300.

(23) Frederick De Vries (Affidavit 17 February 1999) is a plant allocator with Ku-ring-gai Council. He accompanied Birkinshaw on an inspection of lot 204 in about September 1997, and then arranged for Cockerill Contracting Pty Ltd to cart fill to lot 204. The fill so carted was "a mixture of dirt, clay, road base, concrete, bitumen and shale from Council's work sites " (par 5). Carting ceased in May1998.

(24) Jon Harrison (Affidavit 21 January 1999) is a plant operator and yardman at Ku-ring-gai Council's Gordon depot, and he deposed to the sorting of waste at his depot resulting in the inclusion among the " mixed waste " pile of some " smaller rocks, dirt, bitumen, concrete, leaves and blue metal ". He loaded Cockerill trucks from that pile between September 1997 and May 1998. He annexed a photograph of " typical " material sent to lot 204, and De Vries and Cockerill corroborate that photographic evidence.

(25) Robert Cockerill (Affidavit 2 February 1999) is responsible for the day to day management of the family " civil contracting, haulage and plant hire business " which transported " mixed waste " from Council's Gordon depot to Enviroguard at Erskine Park, and later to lot 204. He deposed to the record keeping arrangements.

(26) Sam Emerzidis (Affidavits 7 December 1998 and 15 February 1999, and oral evidence T252-256), is a director of Civil National Landworks Pty Ltd (" CNL ") and says he became aware of landfilling at lot 204 in about 1991-92. He has sent trucks also to other sites, including one at Kellyville Park, in respect of which he made payments to Waight. From October 1997 CNL carted excavation waste, comprising " road base material, basalt, sand, clay and some fragments of concrete " and classified as " inert " (par 4 of 7 December), in 25 tonne loads from a Mirvac site at Pyrmont to lot 204. Waight charged CNL a total of $38,520 for 578 loads (14,350 tonnes).

Sam Emerzidis also deposed to carting to lot 204 smaller quantities of waste from three other jobs, and to taking a telephone call from Waight in August 1998 asking him to tell the EPA he carted only topsoil, and not " concrete or rubble ", to lot 204. He annexed invoices received from Waight, many of them bearing the heading " M. Waight t/a Glenorie Tip Facility " and are signed off " M. Waight Site Owner ".

Sam Emerzidis' later affidavit links the affidavits (all dated 20 January 1999) of (27) Roberta Lindbeck , (28) Michael Long , and (29) Ronnie Tong , all from Douglas Partners Pty Ltd, to the " inert " nature of the fill from the Mirvac Pyrmont site which was taken to lot 204.

(30) Simon Emerzidis (Affidavit 15 April 1999), is a director of Simons Earthworks Pty Ltd, which tipped material at lot 204, from July 1997, being demolition waste from sites at Rushcutters Bay (bricks and concrete), North Ryde (top soil and vegetation, excluding trees and stumps), Strathfield (concrete), and Sydney (bricks, concrete and some soil). Simon Emerzidis annexes some invoices from Micato Holdings Pty Ltd T/a Glenorie Tip (facility) and some from Michael Waight, so trading, all signed by Waight as " Facility Owner " or " Site owner ". He deposes further that Waight sent him nine photographs of fill material including " stumps, vegetation, timber and junk " (now Exhibit P27 ) which Simon Emerzidis denies having tipped at lot 204.

(31) Russell Harrison is an EPA Investigator who swore an affidavit (5 August 1999) solely for the purpose of putting in evidence a Record of Interview he conducted with (32) Stephen Bassett on 9 June 1999. Bassett owns a " company " known as Bassett Demolitions, of Lidcombe, which delivered " clean fill " from a site at West Ryde to a " landfill " at lot 204. Whenever Bassett's demolition waste included " brick and concrete rubble ", Bassett says he ran it through a crusher " about 150ml (sic) down to 70ml (sic) no contaminants - no sort of rubbish in the loads ". Some of the invoices received by Bassett were from " M Waight t/a Glenorie Facility ", and others simply from " M Waight ".

(33) Nicholas Drake (Affidavit 8 August 2000) was at relevant times a plant operator with Bassett Demolitions and, in late 1997, worked on the demolition of a large brick building at Hornsby, which had been burnt out. Among the materials involved were asbestos, glass, lead and steel, and he says they were, largely, neither sorted nor crushed, but were taken to lot 204. There were about 220 loads from the Hornsby site and Drake estimates there were about 60 other 22 tonne truck loads from house demolitions.

(34) Stephen Sarkis (Affidavit 18 January 1999) was a partner of (35) Robert Bechara (Affidavit 18 January 1999) in " Get Fast Waste Bins " in 1997. He was approached by Waight, at a take-away store in Glenorie one day in November 1997 and invited to deliver soil to lot 204. Sarkis passed on the contact phone number to Bechara who rang Waight. At the time Get Fast carried demolition material (including from the Sydney GPO project) to a depot in Camellia where it was sorted into " hard " and " light " fill. " Hard " fill, comprising " dirt, shale, clay, bricks, pieces of concrete and rock mixed together " (Bechara par 4), was taken to lot 204 at a usual cost of $100 per 10-12 tonne load, which Get Fast paid to Blue Print Corporation. Bechara estimates he sent 130 loads and paid $13,020. (36) Sam Gabrael (Affidavit 18 January 1999) deposed that the " hard " fill referred to in Bechara's evidence contained no contaminated material.

60. The prosecutor helpfully collated an "aide memoire" of its evidence as to the amount of waste/fill received at lot 204 between 17 June 1997 and 15 May 1998. The sources of the calculations were the affidavits of Vaughan, Birkinshaw, Sam Emerzidis, Simon Emerzidis, Bechara and Russell Harrison, and the business records tendered (Exhibits P14, 15, 17, 18 and P139). All the material was assumed to comprise waste, any item specifically marked "clean fill" or duplicated in the evidence was excluded, and conservative tonnage estimates for various vehicles were adopted. The prosecutor calculated total deliveries of 71,782 tonnes of waste, but described those calculations as "conservative" (T1246f) due to limitations on the evidence available.

61. The fifth group is the EPA's expert witnesses on resulting environmental harm (whose evidence will be dealt with in more detail later in this judgment): (37) Moreno Julli (Affidavits 30 November 1998, 20 July 2000 and 9 March 2001, plus oral evidence T520-542 and T12.3.01 pp 9-13) is Research and Testing Services Manager at the EPA (CV Exhibit P125 ), carried out inspections and sampling on 22 May 1998, 13 March 2000, and 11 December 2000 (see also Exhibit P30 , Exhibit P31 , Exhibit P32 , Exhibit P142 , and Videos Exhibit P2 and Exhibit P3 ).

(38) Timothy Ingleton (Affidavit 9 March 2001, plus oral evidence T12.3.01 pp 15-17), an environmental technician who took samples and made observations on 11 December 2000.

(39) Eren Turak (Affidavit 27 November 1998, plus oral evidence T190-218) is a senior environmental scientist at the EPA, with special responsibility for the National River Health programme in NSW. He carried out inspections and sampling of the relevant creek system on 29 May 1998, 2 November 1998 and 23 February 2000 (see also Video Exhibit P4 , and Exhibits P5-P10 ).

(40) Arthur White (Affidavits 16 April 1999 and 7 September 2000 and oral evidence T543-558) is a self-employed environmental consultant specialising in threatened frog species (CV Exhibit P126 ), and inspected the area on 17 February 1999 and 23 February 2000.

(41) Rodney Buckney (Affidavits 30 November 1998 and 12 September 2000, plus oral evidence T558-577), is a biologist and Associate Dean of Science at UTS Sydney, who works in the field of ecotoxicology. He inspected lot 204 on 2 November 1998, with Turak, and took water samples and photographs. He returned to the site on 23 February 2000 and took further photographs.

(42) Roger Lembit (Affidavits 16 October 1998 and 14 September 2000) is a self employed environmental consultant who conducts flora and fauna surveys and impact studies. He inspected the creek system on 31 July 1998 and 13 March 2000.

(43) Gunther Theischinger (Affidavit 3 July 2000) works as a technician at the EPA's Water Science Laboratory, identifying aquatic macroinvertebrates, and analysed various samples taken in the relevant investigations.

(44) Martin Smith (Affidavits 16 September 1998 and 6 September 2000) is a ranger with the National Parks and Wildlife Service (" NPWS "), and gave evidence regarding the conservation values of the Maroota Crown Lands, the relevance thereto of runoff from lot 204, and the complaints made by the NPWS to BHSC regarding tipping at lot 204. He carried out inspections and took photographs on 4 September 1998, and on 13 March 2000. See also Exhibit P132 . 62. The sixth group of witnesses is comprised of miscellaneous other witnesses relied on by the EPA:

(45) Neville Burkett (Affidavit 29 January 1999), an architect employed by the NPWS, is a " direct neighbour " of the Waight property (to its south). He observed extensive tipping activity, and large trucks queued up near a second access gate to Waight's property, close to Burkett's boundary, particularly " in about the twelve months leading up to May 1998 ".

(46) Bernard Moriarty (Affidavit 30 November 1998) is a consultant surveyor who provided the EPA with enlarged aerial photographs of lot 204 ( Exhibit W1 flown 20 March 1992; Exhibit P22 flown 25 November 1997; and Exhibit P23 flown 30 August 1995).

(47) Bruce Walker is a Director of, and (48) Linton Speechley is an engineer employed by, Jeffery and Katauskas Pty Ltd (" J&K "), the consultant geotechnical and environmental engineers, engaged by Waight regarding the works on lot 204 between 1995 and 1998. They declined to swear affidavits in these proceedings, but both gave oral evidence (T394-519, 578-612, 665-750), to which I will return in more detail later. (See also Exhibits P33 to P124 , and Exhibits P128-9 ).

(49) John Mackay (Affidavit 18 July 2000) is a Telstra Corporation officer, who deposed to records he produced linking certain telephone numbers used by the defendant and related entities such as Blue Print Corporation and a company (Jemby Corporation Ltd - Exhibit P29 ) closely linked to Waight's surveyor Barrie Green .

(50) Peter Tattersall (Affidavit 5 August 2000) is the licensed postal agent at Dural Post Office who deposed to records he produced linking a certain private mail box address (PO Box D405 Dural 2158) to Mr Waight, Blue Print Corporation, and other Waight companies and GCJF.

(51) Edward Curran (Affidavit 13 July 1999) is an earthmoving contractor, and related to Vaughan. He told the EPA (in a Record of Interview on 24 June 1999) that Waight was engaged by him to " organise the paperwork that had to go to the Council " for Curran to place fill on his own land. Curran denied that Waight was involved in " the actual filling ", " landscaping ", or " engineering " matters, but he arranged some surveying, landscaping and legal advice. Curran also told the EPA that Waight asked him in about May 1999 to tell Vaughan (i) not to give a statement to the EPA, and (ii) to have his solicitor talk to Waight's solicitor.

A lot of exhibits to the affidavits filed in the defendant's case were bound into the affidavits upon which he relies, and were accepted by the court as part of that evidence.

The defendant himself gave evidence (Affidavit 10 November 2000 - "MW" - plus oral evidence for 2 days T1013-1216), but he also relied upon evidence from the following: (i) His wife Rita (Affidavit 4 November 2000 - " RW ").

(ii) His treating Psychiatrist Dr Graham Altman (Affidavit 30 October 2000, annexing detailed reports dated 6 March 1995 and 30 October 2000, covering treatment since 10 November 1994).

(iii) Gary Leonard (Affidavit 28 October 2000, plus oral evidence T752-773), an environmental and landscape consultant, and Senior Associate of Gunninah Environmental Consultants (see also Exhibits W4-W6 ).

(iv) Paul Anink (Affidavit 28 October 2000, plus oral evidence T813-926), an environmental scientist, who is Managing Director of Marine Pollution Research Pty Ltd, and specialises in the investigation of pollution effects in marine and fresh water aquatic environments. He is the author of two major reports, dated March and October 2000, updated by Exhibits W8-W15 . See also Exhibit P133 , and a report dated 19 February 2001, in respect of proposed s 14 orders (in Exhibit W22 ).

(v) Ian Joliffe (Affidavit 27 October 2000, plus oral evidence T774-811), a Resources Engineer with Gutteridge Haskins & Davey Pty Ltd, specialising in rural drainage, catchment and flood plain management, and hydrology. See also Exhibit P134 .

(vi) Warwick Davies (Affidavits 11 and 27 October, and 4 and 9 November 2000, plus oral evidence T928-1010), consulting geotechnical engineer, also acting as the Principal Geotechnical Engineer of GHD Longmac Pty Ltd, to whose reports and affidavits extensive fill testing results are attached. His reports and affidavits are updated by Exhibit W16 , Exhibit W17 , and Exhibit W19 . See also Douglas Partners' report ( Exhibit P136) , and reports dated 15 November 2000 and 26 February 2001, in respect of the proposed s 14 orders (in Exhibit W22 ).

With his comprehensive written submissions, Mr Preston provided, for the assistance of the court, the following 6 schedules: 1. Schedule of evidence that the defendant's purpose was to build a dam to increase water supply for residential agricultural and bushfire fighting purposes. 2. Schedule of Revenue/Income calculations. 3. Schedule of Fill Volumes and Types. 4. Schedule of the evidence of Mr Waight's co-operation with responsible authorities. 5. Schedule of sentences imposed in relation to Tier 1 offences. 6. Schedule of the affidavit/report evidence of Dr Pells and Mr Davies - Design and Construction Issues and Mechanism of " Failure ".

as well as a schedule of references, in MW affidavit, to other documents in the case.

In summary, the "fill figures" in Schedule 3 indicate as follows: (a) As at 21 September 1995, BHSC estimates 24,740 tonnes of fill on lot 204, but Waight estimates 2,500 tonnes. (b) Deliveries to site after consent orders were made 12 August 1996, meant the following estimated cumulative tonnages on site: By end January 1997 238-241 tonnes February/March 1997 2,859-3,208 tonnes By end of April 1997 5,509-6,022 tonnes By end of May 1997 9,839-10,546 tonnes By end of June 1997 10,863-11,654 tonnes By end of July 1997 14,061-15,024 tonnes By end of August 1997 16,514-17,669 tonnes By end of Sept. 1997 19,086-20,315 tonnes By end of October 1997 36,738-38,276 tonnes By end of Nov. 1997 47,228-49,142 tonnes By end of Dec. 1997 52,577-54,729 tonnes By end of January 1998 58,724-61,122 tonnes By end of February 1998 75,044-78,690 tonnes By end of March 1998 81,438-85,630 tonnes By end of April 1998 84,396-88,800 tonnes By 18 May 1998 84,780-89,184 tonnes

BHSC complained in late 1994 about what looked to be landfill activities being carried on in the relevant gully of lot 204, without Council's consent, and, on 30 November 1994, Council issued Waight with a notice regarding his alleged use of unauthorised fill.

In response Waight ceased work, lodged a development application (DA 94/679), and a supporting letter, on 16 December 1994, together with a survey dated 13 December 1994 by Barrie Green (not annexed as "E" to Zadeian's affidavit at p 23, but a stamped version appears at pp 33-34).

The DA sought approval for "enlargement of existing water supply dam" to be used for "residence/rural" purposes. Waight estimated that he would need 9,000 cubic metres of fill, and that the proposal would cost $2,500. He claimed to be a "qualified Project Manager".

Surveyor Green (from whom Waight subleased an office in Dural at the time), had drawn relevant plans and diagrams, based on a desire to raise the "dam full" water level from RL 92.5 to RL 96.5. (See Zadeian p 34). To achieve this objective the wall had to be raised by approximately 4m from RL 93.2 to RL 97.

There is some dispute about Waight's assertion at the time that he himself had relevant qualifications to "do" the job. He says that he has a 1986 Certificate or Diploma in Building and Construction Management from the University of Western Sydney, and that he has worked in the construction industry since 1970, with 15 years supervision experience on "numerous construction projects in the Baulkham Hills and Hornsby shires including: (a) dams of varying sizes; (b) subdivisions; and (c) various buildings" (see unfiled Waight affidavit 5 July 1996 at Zadeian p 36).

Waight's letter to Council dated 16 December 1994 relevantly included the following (Zadeian pp 20-22): …The (mostly dry) watercourse leading away from the dam - for some further 500m - is in fact, all within the boundaries of this property. … The very sharp southern contours of the existing dam mean that the expansion had to be executed in two stages. 1. A quantity of hard fill had to be brought in to create a wider top of the existing dam that then allowed, 2. clay (impervious) material, as a second stage, to be placed on the top of the wall itself to hold the dam. There was (and remains) no opportunity to simply "top up" - make higher - the existing wall with clay only. The existing top of the dam wall does not have enough bulk and dimensional lateral (sideways) area (and therefore strength) to hold any additional water. … 5. Fill consists of: (a) Bricks and cement blocks for majority of dam wall to stabilise the southern wall area contours. This will be dressed with clay/topsoil. (b) Impervious Clay for top of dam wall used as a waterproof membrane to increase the height directly associated with held water storage. The clay compacted by bulldozer. … 9. … The gradient will allow natural shedding of rain; but clay soil mix will form into the natural cavities formed by bricks allowing the material to stabilise. Note that 5m from the toe of the wall will have 10 staked (sic) hay bales installed to prevent any minor soil erosion permeating into the (dry) watercourse area. … This report shows that as the right material becomes available the works will be completed. It is not a matter of "any material" being acceptable, or usable. I am a qualified project manager well versed in this area of works; and can therefore make professional judgments as to the type and quality of acceptable materials.

Given the proposed new height of the dam wall, the works will be completed in correct stages to properly allow the raising of the wall another 4 metres above existing levels as the plans allow. This will allow when completed, an added estimated 4.5 megalitres of water to be stored.

During the assessment of the DA Waight wrote to Council again on 27 January 1995 and said, inter alia, in response to Council inquiries regarding various dams on lot 204 (Zadeian p 26): I also point out that the facts are that the property has been specifically engineered along its entire driveway length - 300m - and over a number of the paddocks surrounding and above this "silt entrapment dam" with all or any rainwater to flow into that silt trap dam in the first instance, and then into the sole water storage dam.

Not guessed, but planned for its purpose; and subsequently engineered. Its depth is never over 1m, in an area of just 600sm. This water is clearly not used for residential, cattle or fruit tree use; and it is obviously not connected to any pump. Useless for, and not intended for water storage.

Therefore its capacity ".. to be near full" or otherwise - given its engineered use and purpose - is an entirely inaccurate statement, and not worthy of being made by Council.

There is a second dam to the LHS of this - which is in fact the dam for enlargement.

The silt trap dam is indirectly connected to this dam via twin 150mm pipes at the maximum exit point of that silt dams exit; placed under the road, and emerging some 2m above the top level of the lower dam to allow water enhancement by "water oxygenation".

This dam is clearly - and visually - still down about 2 metres from its peak capacity - despite the recent heavy rains - and that means it is some 500,000 litres below its actual capacity, as at the date of this letter.

BHSC's DC (D94/679), granted by delegated authority, and advised in writing to Waight on 24 February 1995, was stated to be for "dam enlargement", and included relevant conditions (especially Nos.2, 6, 9, 11 and 12).

Waight contends that Council had satisfied itself he was "genuine", but imposed conditions which were inconsistent with each other (especially No.11, which he claimed was not consistent with Nos. 1 and 9, regarding the slope of the embankment).

The major relevant conditions (Zadeian pp 30-32) required Waight to: (i) carry out the approved works " substantially in accordance with the approved plans and details, stamped and returned … " (Cond.1 - Zadeian pp 33-34). (ii) use " only clean fill ", but no builders waste, industrial waste or putrescible materials (Cond.2); (iii) engage a geotechnical engineer to supervise " site filling and compaction " (Cond.7), which was to be carried out in accordance with levels indicated on Plan No.2618 prepared by Barrie R Green … dated 13 December 1994 (Cond.9); (iv) remove top soil and vegetation prior to placement of fill (Cond.6); (v) compact the embankment to 95% (Cond.7); (vi) limit the grade or slope on any batters to " 2 metres horizontal to 1 metre vertical " (Cond.11); (vii) observe Council's erosion and sedimentation control standards prior to commencement of works (Cond.12); and (viii) construct a suitable overflow on a natural overflow path (Cond.13).

The Council's covering letter (Zadeian 30), advising of the grant of consent, relevantly included the following paragraph: This Consent does not relieve the developer of the obligation to obtain further approvals with reference to Building and/or Health Regulations or any other Acts".

The DC was forwarded to Waight with a letter from Council, dated 28 February 1995, drawing his attention especially to Condition 2, and directing him to remove from the site within 14 days "the builders' rubble and concrete" which had been observed during Council's pre-consent inspections.

Work recommenced following the grant of consent.

Later in 1995 Waight allegedly failed to observe Council's notice to cease work - he says he thought it just meant "accept no more fill" - and, following an inspection by Savage on 21 September 1995, Council commenced matter 40176 of 1995 on 29 September 1995 (Exhibit P11), against both Waight and his wife.

In his affidavit of 8 April 1999, Savage says (in par 9): 9. My inspection of lot 204 on 21 September 1995 … confirmed what I had seen on 5 September 1995. I made the following observations: (a) the fill consisted of builders rubble: timber, concrete, wire reinforcing, tree branches/stumps, plastic conduit, corrugated sheeting, window frames, insulation, tyres, a television, gyprock, an otto bin, plastic drums and other miscellaneous rubbish….; (b) any soil used for fill appeared to be mainly a mixture of splintered wood, rocks and soil; (c) the landfill embankment had a height of approximately 50 metres and a platform of approximately 25 metres by 150 metres. I paced the platform out to determine these measurements; (d) concrete and rock boulders had rolled away from the fill and lay further into the bushland….; (e) a sedimentation control device of hay bales, previously installed, had been destroyed by boulders and rocks smashing them to pieces. It appeared to me that these boulders and rocks had been end-tipped from the crest of the landfill. Indeed, end tipping appeared to me to be the method of placing all of the fill into gully; (f) the top of the landfill embankment had a large crack, approximately two metres away from the edge, that suggested to me that the part of the embankment might give way and slide. …

An interlocutory injunction was granted on 29 September 1995 by Bannon J, and it was continued for some time while negotiations continued. Waight appeared in person on 29 September 1995, but not on subsequent mentions. However, he gave undertakings to the court on 13 February 1996, and the court understands no more fill was received until early 1997.

Waight engaged consulting geotechnical engineers J&K in October-November 1995. He had apparently worked with them on other projects in the past.

J&K's Bruce Walker made his first inspection of the site on 8 November 1995. J&K formulated some engineering specifications for Waight's proposed embankment, and J&K's "requirements" became the subject of consent orders, made by Talbot J in the class 4 proceedings on 12 August 1996 as follows: The court orders by consent that: 1. In place of the undertakings 1-4 given to the Court by the Respondents on 13 February 1996, the Respondents:- (1) Carry out development on Lot 204 DP 752039, Old Northern Road, Glenorie ('the site'):- (a) in accordance with Development Consent No. D94/679 dated 24 February 1995 as amended by: (i) the report of Jeffrey & Katauskas Pty Limited ('J & K') dated 15 April 1996, a copy of which is Annexure 'A' hereto; (ii) which report is to be read as amended by the J & K letter dated 28 June 1996, a copy of which is Annexure 'B' hereto; and which together are referred to as the 'the J & K requirements'; and (b) in the sequence set out in the Proposed Sequence of Work prepared by J & K and dated 31 July 1996 ('the Sequence of Work'), a copy of which is Annexure 'C' hereto. (2) Remove unclean fill from the site in accordance with the J & K requirements and the Sequence of Works. (3) Provide and maintain soil erosion and sedimentation controls in accordance with the Department of Conservation and Land Management 'Urban Erosion and Sediment Control Field Guide' dated 18 August 1992. (4) Dispose of unclean fill from the site only at any of the following waste disposal sites:- (a) Bradshaws at Eastern Creek. (b) Rock and Dirt at Artarmon. Or at such other site as may be agreed between the parties in writing. (5) Rehabilitate the site in accordance with the J & K requirements and the Sequence of Works. 2. The Respondents to pay the Applicant's costs in the sum of $15,000 within twelve (12) months of today's date.

Attached to the consent orders were three detailed reports by J&K, dated 15 April 1996, 28 June 1996 and 31 July 1996, with which I will deal in the next section of this judgment.

The effect of the consent orders is summarised in Mr Preston's written submissions (p49-50, par 190-192) in these terms: The consequence was that the development that had been approved was the construction of a dam which would necessarily involve: the construction of silt fences beyond the embankment footprint area in the gully beyond the toe (and any necessary disturbance of the bush involved with placing those silt fences in situ); clearing all vegetation from the embankment footprint area; stripping boulders from the footprint and using them to construct the zone for rubble toe; augmenting the rubble toe with available oversize rock, concrete and brick from existing fill and imported material; constructing the Zone 2 drainage blanket from the rock fill toe and providing an area for fill placement; removing unsuitable materials from existing dumped fill; placing and compacting fill at the base of the embankment for Zone 3; extending the Zone 2 drainage blanket up the hill towards the dam and progressively filling in Zone 3 thereafter until the desired level in the Zone 1 area was reached; placing the Zone 1 clay fill; constructing the new spillway; and revegetating the embankment face as the levels rose. Furthermore, the dam that was approved required fill that not only included clean fill such as soil and earth but also required rocks, concrete, bricks and other rubble, especially for Zones 4 and 2 but also to be mixed with earth in Zone 3.

The approved design also required the extent of fill to be considerably enlarged from that which had been approved by the Council in the development consent dated 24 February 1995. The toe of the embankment now was authorised to go to RL43, being the alternative foundation level for the rockfill toe, which level was proximate to the unnamed east-west watercourse.

All of these changes were brought about by the Council's requirements that the batter grade or slope not exceed 2 horizontal to 1 vertical and that the batter be stable. Whilst these were desirable, indeed essential, criteria, the necessary consequence was a significant enlargement of the size of the dam. The larger size of the dam meant that the amount of fill that was required to carry out the works necessarily increased, as did the impact on the bushland gully that was necessitated thereby.

At some stage Waight appears to have erected, on the front fence of lot 204, a sign reading (Photo B1 of Bowles, at p15): " THESE WORKS HAVE BEEN APPROVED BY The Land & Environment Court 12th AUGUST 1996"

The evidence makes clear that Waight represented the court's formal sanctioning of his agreement with Council as not only permissive and facultative, but as directive of his operations on lot 204, and embracing of all licence, etc. requirements.

As noted above, the J&K report of 15 April 1996, as amended by J&K's letter of 28 June 1996, became of crucial importance to the proposed embankment works, as the class 4 consent orders replaced the undertakings given by the Waights on 13 February 1996 with a requirement that their works be carried out in accordance with DC 94/679, as amended by those two J&K documents read together.

The class 4 consent orders went on to indicate that the work at lot 204 was to be carried out in the sequence set out in the "proposed sequence of work" document prepared by J&K dated 31 July 1996, covering a period of 3 years from the date of the court's approval.

As the work done and advice given by J&K assumed enormous importance during this hearing, the principal contents of the three J&K documents need to be noted in this judgment.

In the first document, the J&K report dated 15 April 1996, J&K referred to some preliminary earlier advices they had provided, noted "the Council stipulated batter or 1 Vertical (V) in 2 Horizontal (H) from the final crest level of RL 97", and proceeded to outline "our design proposal" which included the following:

· a rock fill toe based on the flatter bench at about RL 52. We anticipate this bench will be a rock ledge. The rock fill toe will 'reinforce' the batter (by virtue of the higher shear strength for this type of material) and provide drainage of possible seepage from the dam. An alternative will be to start the rock fill toe at about RL 43 which will reduce the quantity of rock fill needed for construction of the toe, but extend the batter further down the gully. · a drainage blanket will be provided up the gully from the rock fill toe to the base of the existing fill. The blanket would extend up the valley sides along the base of the existing fill. This drainage blanket is required to minimise seepage pressures within the embankment and hence provide the required stability. · the batter face has been designed at 2H:1V except for the rock fill toe which would be at 1V:1H. Provision of this rock fill toe minimises the extent of batter down the gully which otherwise would almost reach the main watercourse. This minimises fill quantities and impact within the gully area. In addition it provides space for required silt fences to control sediment during the construction process.

J&K commented on their understanding that the original dam embankment "had performed satisfactorily for a number of years". That understanding underpinned much of J&K's work on the design of the new embankment.

At p6 of the April 1996 report (Zadeian p51) J&K commented: The shear strength of the embankment material to be placed will be dependent upon the nature of the material and its degree of compaction. In view of the nature of this embankment it is proposed that regular Insitu Density Tests will be carried out to confirm that adequate compaction has been achieved. It is likely that this compaction will result in higher shear strength than those applicable to the existing embankment. … However, it is considered appropriate to adopt the same shear strength parameters as it is possible that the fill materials will vary from clays to sandy clay type materials.

In s 4 of that J&K report "Design and Construction Requirements" (Zadeian pp 51-54) the essential features of the design are set out as follows:

· All vegetation to be stripped from the area to be occupied by the proposed embankment · Access for the construction works would be via an access track down the eastern side of the embankment area (Figure 6). This access track would be located within the embankment footprint and would be built over as the fill level is raised. The access road would be provided with a granular interlocking surface by use of brick rubble and fragmented concrete. · As there are a number of boulders present within the gully area, these would be used to form a boulder wall facing to the rock fill zone and the toe of the embankment. The rock fill toe would also include selected rock fragments, concrete and brick from the fill materials to provide a free draining toe. We note that it is likely that additional imported free draining fill may be required. The boulder facing wall would improve the FOS against surficial instability of the toe. · The drainage blanket would comprise finer free draining material having a typical maximum particle size of 300 millimetres (mm). Suitable recommended materials would include sandstone fragments, brick and concrete rubble. If finer material is adopted, such as a processed demolition spoil having a maximum particle size of say 40mm, then the thickness of this layer could be reduced. · Provision of a geotextile filter over the drainage blanket along the toe of the existing batter to protect it against internal erosion by seepage from within the existing embankment zone. · Fill materials would be used to form the compacted random soil and rubble fill (Zone 3) comprising the downstream shoulder of the embankment. It is anticipated that in the initial stages much of this material would be obtained by reworking the existing dumped fill. During the reworking process the visible majority of unsuitable materials such as organics, timber and oversized materials would be removed. Oversized materials could be separated for use in the drainage blanket at higher elevations or alternatively pushed to the western abutment to provide a scour protection zone down the embankment flank where it joins the natural valley hillside. · Provide an internal drainage layer at about existing crest level to control possible phreatic surface within the finished embankment. It is anticipated that this layer will either be a clean sand (less than 3% finer than 0.075mm) or a free draining aggregate protected by a non-woven geotextile filter fabric. · Use selected clayey fill materials on the upstream face of the raised crest portion, to provide a zone of lower than average permeability. · It is anticipated that a new spillway of similar dimensions to existing would be incorporated at the western abutment. Discharge downslope would occur at the western edge of the embankment necessitating scour protection shown on Figure 6. · Silt fences (similar to existing) would be established below the toe level of the embankment prior to commencement of construction. · During construction it will be necessary for a geotechnical engineer to carry out site inspections as follows:-

• to check stripping prior to fill placement;
• presence of the drainage blanket and filter materials;
• to carry out Insitu Density Tests to confirm that adequate compaction has been achieved;
• selection of clayey fill materials for the upstream face zone. · Compaction Tests are to be carried out at not less than 3 tests on every second layer. The compacted layer thickness is not to exceed 300mm ie. three tests per 600mm increase in fill level. · It is envisaged that the final embankment surface would be revegetated. We note that to achieve adequate compaction to the edge of the embankment it would be necessary to over-place fill materials and then trim back once compaction has been carried out. It is envisaged that this would take place in lifts of about 4m to 5m vertical height. After trimming, topsoil type materials and grassing could be carried out. · Install piezometers within the existing profile to monitor long-term phreatic levels within the critical upper portion of the dam (Figure 11). Three piezometers are envisaged on each of two cross-sections. For simplicity, standpipe piezometers are proposed and hence will require progressive installation as fill levels are raised.

The text of the April 1996 report concludes with the following comment: We note that the proposed design has been based on back analysis of the existing structure. We have assumed that site inspections would be carried out by a geotechnical engineer during the construction process and that the nature of the fill materials would be similar to the existing. Should these assumptions be shown not to be the case then some modifications to the embankment design may be required. Given the required volume of fill material we envisage that construction will require about three years to complete.

Attached to the April 1996 report were figures numbered 6 to 11 (Zadeian pp55-60), and a comprehensive series of explanatory notes to aid in the understanding of the report (Zadeian pp 61-68). Figures 6 and 11 in that first J&K report assumed great importance during the hearing.

It will be noted that Figure 11 "divided" the proposed embankment into various zones, and specified particular material types for each Zone: (i) Zone 1 , which would be the crest of the embankment on the upstream side (i.e. facing the stored water) was specified to be " compacted clay fill ". (ii) Zone 2 was the " free draining drainage blanket ", and its specification was " max particle size 300mm; rock, brick and concrete fragments ". (iii) Zone 2A was to be " non-woven geotextile figure fabric "; (iv) Zone 2B was to be an " internal drainage layer, clean sand ( 3% finer 0.075mm) or crushed aggregate with Zone 2A protection ". (v) Zone 3 (representing the bulk of the fill material) was to be " compacted random soil and rubble fill"; (vi) Zone 4 " select free draining rubble toe; rock concrete and brick fragments "; and (vii) Zone 4A " boulder facing to toe ".

As Mr Preston noted in his submissions (p 31 par 123): The construction materials varied to achieve the purposes of each zone. Zones 2 and 4 had free draining materials which would include rock fragments, concrete and bricks and other rubble. Although some of this material was available in the existing fill, additional imported selected fill would be required. Zone 3 could involve re-use of existing fill materials to form the compacted random soil and rubble fill for the main embankment. During the reworking, any unsuitable materials for Zone 3 could be removed and oversized material separated for use in the free draining toe in Zone 4. Accordingly, a necessary consequence of Mr Walker's design was that Council's previous condition number 2 in the development consent which required only clean fill to be used and not builders' waste, need to be varied.

A note on Figure 11 indicated that zones 1, 2B and 3 were to be "compacted to not less than 95% standard compaction with testing in accordance with our report of 15 April 1996". Readers were referred to Figure 6 for plan and existing survey details, and to that report of 15 April 1996 "for further discussion of requirements".

In the second J&K report, dated 28 June 1996, prepared following a meeting between J&K and representatives of BHSC, a number of issues were addressed. Inter alia, J&K were insistent upon maintenance of their technical design requirements in order that they would "be in a position to give the subsequent certifications required". Particular issues dealt with included (Zadeian pp 69-71): (i) " The proposed timing of 12 months for removal of unclean fill and three years for completion of the project is considered reasonable ". (ii) " 'Process Demolition Spoil' … comprises crushed recycled concrete and brick which has been processed by crushing and screening " . (iii) In respect of the drainage blanket, J&K said " If the 40 millimetres (mm) free draining material is used, then the layer thickness can be reduced to 250mm". (iv) " We accept that … our design would be revised as necessary to accommodate conditions exposed by the works. This would generally be achieved by the Site Report [which] … would usually be prepared at the site on completion of the inspection. We would usually rely on the client/contractor to notify us as to when site works are ready for inspection. We propose that a copy of each Site Report be faxed to Council so they are kept informed as to site progress and our involvement ". (v) " We anticipate that the zones shown on our design drawings (Figures 6 and 11) will be progressively constructed as the fill embankment level is raised. Council require all recently dumped fill be reworked to remove unclean fill …. This can be achieved once the rockfill toe is constructed and for safety/stability will necessitate working down from the top of the recent fill. Acceptable material can then be placed directly in the Zone 3 fill ". (vi) " Since there are sandstone boulders within the proposed fill footprint, and the site stripping will require most of them to be removed to provide an appropriate fill placement surface, it would be wasteful not to allow those boulders to be reused in the works. We understand this was the Council's intent ". 102. The third J&K document annexed to the consent orders was the "proposed sequence of work" letter/report dated 31 July 1996, which was "to be read in conjunction with" the report of 15 April 1996, in particular Figures 6 and 11, and the letter dated 28 June 1996. The following sequence of work was set out (Zadeian pp 73-74): 1. Provide access track down eastern side of embankment to toe. Construct new silt fences across gully beyond toe in accordance with CALM "Urban Erosion and Sediment Control" (Rev.Ed.1992) Figures 3.21 and 3.22 as attached. Council to be notified when installed. 2. Clear all vegetation from embankment footprint area. This extent to be confirmed by survey. 3. Strip boulders from footprint using them to construct Zone 4A Boulder Facing and, if sufficient quantity available, Zone 4 Rubble Toe. 4. Augment rubble toe with available oversize rock, concrete and brick from existing fill, and imported material. 5. Start construction of the Zone 2 Drainage Blanket from rockfill toe to provide area and fill placement. 6. Bench into existing dumped fill and remove unsuitable materials (eg timber, refuse, vegetation etc). Carry out two or three test pits into bench areas to examine underlying fill materials to confirm unsuitable materials are not present below bench area. Council to be notified when test pits are being carried out. If unsuitable materials are found, then further excavation remedial works are to be carried out. For safety this may require excavation from top of the batter. 7. Place and compact fill at base of embankment for Zone 3. 8. Extend Zone 2 as filling progresses in Zone 3. 9. Install monitoring piezometers from temporary access benches or from fill when at required level. 10. Construct Zone 2B Internal Drainage Blanket and Zone 1 Upstream Clay fill as levels rise; leave spillway as existing temporarily. 11. Construct new spillway and infill existing to finalise raising of crest. 12. Progressively revegetate embankment face as levels rise. 13. Timing for completion of works confirmed by M Waight to be 12 months for removal of unclean fill, and a further two years for completion of the project.

(Attached to that letter (Zadeian p75) were the two CALM figures referred to in item 1 of the letter). Work resumes on the Embankment after the consent orders 1996

At about the time the consent orders were made by Talbot J in August 1996, the defendant approached Vaughan to enter some sort of joint venture in respect of the filling operation. In those negotiations he relied upon the orders of the court and he erected the sign referred to above, apparently, the prosecutor argues, to influence people to dump waste there, on the assumption that his "waste facility" was licensed. He used a number of company names and business names and allegedly deceived Ku-ring-gai Council by using Vaughan's stationery when concluding a deal with that Council in June-August 1997, under which the Council brought "clean fill" - clay, soil and hard fill - to lot 204 from 1 September 1997.

A lot of his early fill apparently came from "a demolition and earthmoving company", Amtree Pty Ltd of Padstow (MW par 26), which delivered, spread and compacted it, without paying tip fees. Waight kept no records of the amount Amtree delivered to lot 204, but he mainly accepted road building and demolition waste in large quantities. Some of the Amtree material was delivered while he was offsite and did not meet Waight's specifications, and Waight requested its removal (Zadeian p37). It was also not satisfactory to the regulators and most of the unsatisfactory material was removed in due course.

In June 1997, as part of his preparation for escalating the operation, Waight got Green back to re-identify RL 52. Green could not locate the "dumpy" peg he had placed at RL 51.68 when he did his survey on 19 February 1996 (the basis of J&K design fig 6), so he used his theodolite to tell Waight when he was standing at "RL 52". Waight then marked a particular tree.

J&K carried out detailed inspections on 3 July (Walker) and 30 September 1997 (Speechley), and Council had an inspection on 16 July 1997. The evidence gives the impression that, since the consent orders, Waight had received fill (including bricks and concrete) for the establishment of the drainage blanket and the outline of the toe, but that J&K and Council appeared quite comfortable with their observations (Exhibits, P51, 55 and 56).

After 30 September 1997, Waight began receiving very large quantities of mainly demolition waste, including from Ku-ring-gai Council sources (after 1 September 1997). The prosecutor calculated that there was 7,605 tonnes on site as at 30 September 1997, but 23,632 by 3 November 1997. The toe outline at "RL 52" was overwhelmed by fill. As he did not have enough boulders at the toe he installed a series of "concrete pontoons" (MW par 139).

Inspections by the EPA, commencing in November 1997, and one at least including Council and DLWC representatives, gave rise to some internal concern, and discussion among regulators, regarding the "stability" of the embankment, but the EPA made no recommendations to Waight regarding its rectification. The EPA's communications with Waight largely concerned its position that he needed a Waste Act licence and would have to pay levies.

Council officers Nunn and Roberts inspected during March 1998, and made no adverse comment, but, on 8 May 1998, BHSC called Waight in to discuss his project and handed him a notice to cease work pending a fresh survey and a geotechnical appraisal. While he was at the Council, Mrs Waight let EPA officers onto lot 204 to do an inspection. No concerns were expressed to her, nor to any of the men on site, but, on 15 May 1998, the EPA served a notice requiring Waight to cease receiving waste, and Waight complied. Bowles told BHSC that Waight's sediment controls needed maintenance, and EPA officers inspected the site again on 16 May 1998 (video Exhibit P2).

In response to BHSC concerns, discussed on 8 May, Waight called in J&K and surveyor Green. Green advised Waight on 11 or 12 May that the tree Green had identified, and Waight had marked, as "RL 52" in June 1997 was actually at RL 42/43 (Exhibit P66). In working to the wrong RL the pontoon retaining wall Waight had erected at the toe had ended up in the creek.

It is, therefore, clear that, by 18 May 1998, Waight had constructed the toe of the embankment into and across a section of the creek ME, and it was 3 to 4m high, effectively burying the creek. Its retaining wall was made of large hollow concrete pontoons and building and demolition material. The creek travelled underneath that wall, and had already carried some fill material downstream.

Steady rain began to fall, soaking the project site, and became heavier on the evening of 18 May. The Glenorie meteorological station recorded continuous rain from 16 to 20 May, and 126mm in the 24 hours to 9am on 19 May. Overnight 18-19 May, Waight's rain gauge recorded 170mm (MW par 169).

The evidence indicates that the J&K specifications for the work should cover more than a heavy, but not an "extreme", rainfall event, but, on 18-19 May 1998, the embankment slipped down into the creek at the bottom of the gully.

At 6am on 19 May, Waight observed that the waters in the south dam had overtopped the embankment at the western end. Debris had collected around the inlet of the spillway pipes. Waight cleared that debris, but could not get down to the base of the embankment to see the extent of the damage it had sustained. During the afternoon of 19 May, Waight observed the slippage on the western side of the wall, and erosion of material from the toe and pontoons into the creek.

The defendant's experts, Joliffe and Davies, who were not familiar with the project prior to the collapse, opined that debris ended up in the creek as a result of erosion and collapse of the retaining wall, from the bottom, where the toe of the embankment had been built in the creek.

Davies said that a batter holds itself up if constructed properly, and he conceded that J&K's design had added strength, and kept the batter out of the creek (see T952f). He would adjust the design if he found that RL 43 was in the watercourse (T984).

Joliffe opined that waters from upstream in the creek, in the east, arrived at the toe on 18 May causing erosion of fine materials and some ponding behind the pontoon wall, saturating the fill and increasing water pressure on the wall, which failed sometime on 18 or 19 May. In his view, the dam would have overtopped at about 4.30am on 19 May, but, in his opinion, that discharge probably did not contribute significantly to the water flow at the toe, although it caused erosion of fine material higher on the wall, which slumped down when the toe failed.

The prosecutor accepts that both erosion and collapse took place, but asserts that there was a more major "slump" in the upper part of the batter face due to its saturation by rain, and the overtopping of the crest, causing scouring. The evidence of Walker and Pells supports the prosecutor's position, and the prosecutor also relies on the video, photographic and survey evidence, and on some "contemporaneous" statements by the defendant to J&K (Exhibits P70, P74, P79, P83).

Dr Pells' opinion is that the primary element underlying these collapse events was the defendant's failure to construct the batter by compacting layers from the bottom up (see his affidavit 8 October 1998 and Exhibit P26, especially the sketch in Figure 1).

Mr Preston's summary of the defence position on the collapse (omitting his extensive affidavit and transcript references, but taken from his written submissions, p90-1 pars 329-331) is that: The process of toe failure comprised three stages. First, there was movement of water in the east-west watercourse through the fill materials comprising the toe in the watercourse, thereby eroding and removing material. Secondly, as the flow of water in the watercourse increased beyond the rate of release of water through the fill materials, the water in the watercourse was dammed and rose until it overtopped the toe and retaining wall. This movement of water also caused erosion. Cumulatively, these two movements of water and consequential erosion of material from the toe lowered the factor of stability or safety of the toe. Thirdly, the toe would give way.

Meanwhile, the dam itself would have been filling during the nights of 18-19 May 1998. It would have overtopped at approximately 4.30am on 19 May 1998. Although there was some blockage of the outlet pipes in the temporary spillway of the dam, Mr Joliffe determines that overtopping would most probably have occurred irrespective of the blockage of these outlet pipes. The overflow and discharge from the dam appears to have been directed towards the west and most probably did not contribute significantly, if at all, to the water flow at the toe of the fill.

Overtopping of the dam wall did cause some erosion of fine materials on the surface of the fill, but the majority of sediment that discharged into the creek most probably did not result from surface flows as a result of the rainfall event (either surface sediments or gully erosion).

On behalf of the prosecutor, Pells would concede, in respect of the defence explanation, only that, on all the assumptions made, he could not say it was "impossible", but he preferred the "simpler" explanation (T636-7).

As Anink observed of Waight's early response to the events of 18-19 May 1998 (March report pp46 and 60): The initial remediation work was concerned with the stabilisation of the dam wall and overflow structures, the removal of deposited fill from the creek line below the toe of the dam and restoration of sedimentation structures in the creek line below the toe of the dam. These initial remediation works resulted in removal of the majority of the fill from the section of creek between the toe of the dam and the natural rock ledge. Initial remediation resulted in a partly restored creek line flowing over bed-rock through a 'U' shaped, low gradient (sloping) gully... … The impacts of the initial remediation works were positive in that there was a partial restoration of the aquatic habitat, to the extent that amphibian populations could (and does) show some degree of recovery. The removal of the fill material eliminated much of the sediments within the creek bed suitable for weed invasion and restored the creek to the extent that it provided functional amphibian habitat such as shallow bed-rock pools with sandy bottoms...

Those early steps no doubt caused damage to the area (phases 1 and 2) in which clean-up took place. There is no evidence of any serious or lasting damage, and Waight and his son kept collecting, bagging and removing debris until March 2000.

Walker provided advice in late May 1998, including recommending the re-engagement of the hydrologist Maxwell.

BHSC eventually responded in early June 1998 to Waight's advice of 21 May 1998 that there had been damage done by the storm. Inspections were carried out, liaison continued with Walker, and notices were issued. Waight assured Council he would cooperate, and would follow J&K's advice.

The EPA became more actively involved in investigating the landfill and discovered the collapse. Waight was directed on 22 May 1998 to call in Walker for advice on stabilisation prior to further works. A series of EPA inspections were carried out and evidence (including videos Exhibit P3 and Exhibit P4, taken 22 and 29 May 1998) collected. A search warrant was executed, in quite dramatic style, on 29 May 1998, much to the distress of Mr and Mrs Waight.

Walker continued to work with Waight, but they eventually severed their connections in October 1998 when Waight learned that Walker had been in occasional contact with the EPA and its advisors, both before and after the storm event, and had not so informed him. EPA officer Muir told Waight during a site visit on 1 October 1998 that the EPA had obtained copies of the J&K files on lot 204, and Waight then engaged Davies to advise him on geotechnical matters.

In September 1998, work commenced on a new concrete block wall at the base of the pontoon wall, pursuant to a J&K design. All the earthworks on the dam were completed in March 1999 and, after further environmental works, including installation of the gross pollutant trap downstream in December 1999 (MW pars 228ff), were carried out, Davies prepared a "works as executed" report for BHSC in April 2000 (Exhibit W19). Council had that report reviewed by Douglas Partners by September 2000 (Exhibit P136), and the court saw the outcome of these efforts during the site inspection.

The EPA post-storm issued two notices to Waight:

(a) on 31 August 1998 a notice under the Waste Act (Exhibit P137) requiring early engagement of an engineer to report on works required to remove waste from the creek and its environs, and to stabilise the filled area; (b) on 1 April 1999 a notice under the CW Act (Exhibit P138) to select a consultant and carry out various works of clean-up, rehabilitation, ongoing maintenance, and sediment control.

Waight claims to have done most of the works required by those notices (T1200-2). Certainly Davies commissioned Anink to help Waight respond to the latter notice.

The post-storm events are described at length in Mr Preston's written submissions (pp 92-106 pars 335-414) and there was little dispute about his summary of them.

What environmental harm flowed from the project and the collapse?

At the conclusion of the evidence there was little disagreement between the prosecution and defence experts on elements of harm; but serious disagreement between counsel as to how much of it is to be regarded as punishable in these proceedings, and as to what obligations are to be imposed on the defendant in respect of ongoing monitoring and remediation.

Anink who is the principal environmental expert relied upon by the defendant, gave this "executive summary" of the events that occurred on 18-19 May 1998 (affidavit dated 28 October 2000, p 13): Analysis of the hydrology of the incident indicates that at the peak of the storm on the 19th there was an estimated flow rate equivalent to a 1 in 10 year storm ARI. As a result of a storm of this intensity it is expected that run-off water would be deposited in the subject creek with sufficient force to cause localised erosion from the headwater creeks and for some distance downstream. This would bring mobilised sediments into the creek, remove and flush out most aquatic fauna from the headwaters, including those amphibians which had not moved onto high ground prior to the storm. Some riparian plants would have been removed by the force of the storm, with proportionally more plant loss from the toe and lower riparian slopes of the creek. This probably would have included habitat of the Red Crowned Toadlet where it existed.

Anink classified the effect of this rainfall event on 18-19 May 1998 thus: Deposition of sediments arising from the flooding alone would be considered a pulse to press perturbation as there would have been measurable ecological impacts (loss of plants & aquatic habitat to smothering plus possible water quality impacts associated with sedimentation downstream after the cessation of the storm). Recovery would have required additional time for plants and aquatic animals to adjust to the different nature of the habitat (ie finer sediments) with a further adjustment as these sediments were slowly winnowed through the system by subsequent storm related runoff.

Anink submitted that the flooding event on 18 and 19 May1998 caused a great deal of harm to the environment (March 2000 report, page 45): Given the widespread nature of the storms throughout the locality, the volumes and flow rates of stormwater in Creek ME downstream of the subject sub-catchment could also be expected to have been significant and would have done additional damage to aquatic habitat, aquatic fauna and riparian habitat throughout the greater ME catchment. Further, a storm flow of this intensity would have mobilised significant amounts of sediments from the rural developments in the headwaters of the catchment plus significant sandy material from the steep Hawkesbury sandstone slopes of the headwater creeks. Given the gradients of the creek plus the absence of large, deep pools, much of the sediment reaching the creek would probably have been transported through to the Little Cattai Creek floodplain.

Both Anink and Leonard, for the defendant, submitted that there were disturbances of creek ME and the area surrounding the subject site in general through human activity before the construction of the landfill and the landslide on 18-19 May 1998. As Anink stated (in his affidavit 28 October, 2000, p 13): Prior to the incident, the unnamed creek below the development (ME) comprised relatively undisturbed which probably, on balance and in line with many of the headwater creeks in the vicinity, suffered a number of long-term press disturbances...arising from rural and rural residential activities in the upstream catchments, both by virtue of the ribbon development in the watershed along the ridge-line and the imposition of two farm dams in-line on creek MN.

In his Supplementary Report (October 2000) Anink submitted that the environment of the subject site had been subjected to human interference prior to August 1997, and construction of the landfill (p 170): The aquatic habitat of the un-named creek (ME) below the toe of the existing dam built over the headwaters of creek MN would thus have been subjected to elevated nutrient plus elevated sediment concentrations brought down into the creek via stormwater run-off from the upper rural lands and from stormwater overtopping of the dam during high flows.

Turak, for the prosecutor, disagrees with the level of impact general human activity has had on this particular creek system stating (affidavit 27 Nov 1998, par 12) that: The subsidence incident has modified the creek of concern. Most of what distinguishes it from relatively undisturbed creeks of the same size in Eucalypt forests along the NSW coast can be attributed to the landfill. Notwithstanding the landfill, rural-residential activities are the greatest source of disturbance on both the creeks sampled. A common result of such disturbance is infestation by exotic plants of the riparian zone. I did not see any obvious infestation by exotic plants in the riparian zone at any of the three sites or along the creek reaches between the sites. The species were predominantly if not exclusively native. This indicates that the rural-residential activities on ridge tops near the two creeks are probably not having a serious impact on the creek ecosystems.

Smith agreed with Turak that the general area around the subject site was fairly pristine (Smith affidavit 16 September 1998, p 11): 28. The water in the upper and middle reaches of Little Cattai Creek is of potable quality, spring-fed and largely unaffected by large scale development within its catchment. As a result the soil and vegetation along this stream and its tributaries is largely natural and unaffected by weed infestation. The diverse and unusually rich biodiversity of this catchment is in large part dependent upon the retention of the upper parts of the catchment in a natural and undisturbed condition.

It would appear that the catchment was successfully resisting whatever environmental insults local activities were causing - the local area was zoned for uses incompatible with total preservation, and all the creeks had their origins in areas used for agriculture and horticulture.

Anink outlined the difference between a "disturbance" and a "perturbation", and concluded that the 18-19 May subject incident was a "perturbation", which is a disturbance plus some measurable ecological response notably in aquatic habitat, concluding (March 2000, p47): The two immediate and principal disturbances for the present incident were an initial flash flood which would have occurred regardless of the subsequent fill mobilisation.., followed by the mobilisation and deposition of fill material into the creek bed and onto riparian zone of the creek...Both these disturbances were perturbations as there would have been (and were) measurable ecological effects.

However, Anink pointed out that the impact of the deposited fill in creek ME dramatically decreased further downstream (Affidavit, report p 46): The major portion of the deposited fill material was located between the toe of the dam and the natural rock ledge some 90m downstream, with some spillage around the ledge to the area of creek above the confluence of Creek MS, particularly of milled timber and sediment. There was some deposition of material beyond this point but the volumes of deposited materials downstream were substantially less than upstream. It would appear that … deposited sediment petered out rapidly downstream with no significant deposits beyond creek NN confluence.

The prosecutor submits that the defendant polluted (i.e. physically and chemically altered) the waters of creek ME with a variety of materials contained in the landfill embankment. These pollutants have been discussed by a number of experts and include: (1) hydrocarbons (2) organochlorine pesticides (3) nitrogen (4) iron oxide deposits

A number of the prosecution affidavits (Buckney, Bowles, Julli and Turak) mention collection of water, sediment and soil samples following the subject incident with an analysis undertaken of these results by Turak and Julli. Some additional water, sediment and soil samples were collected for Anink's report as a supplement to the prosecutor's findings.

A number of prosecution affidavits observed and recorded the fill material containing sediment, bricks, broken up cured concrete, reinforcing steel, timber, carpet, bitumen, tiles, tyres, plastic, shoes, aluminium foil, other clothing, beer cans and household refuse (see affidavits of Bowles (par 2.1), Lembit (16 October 1998, par 10), and Smith (16 September 1998, par 14)). It is this composition of fill material that the prosecutor submits is the source of various chemical deposits in creek ME.

Buckney, Anink and Leonard made observations regarding the red-brown iron oxide deposits within creek ME and other water bodies. Buckney particularly focussed on the iron oxide deposits in creek ME and concluded that these resulted from the landslide (affidavit 30 November 1998, pars 24-28). Although Buckney was cross-examined on other examples of iron oxide deposits within the area such as creek MS at the confluence with creek ME and in a spring, he maintained in re-examination that the deposits in creek ME was a result of the fill present in the creek (T577 L34ff): Q. Does seeing those photographs today make you wish to change any of your evidence that you've given in your first affidavit about iron oxide deposits?

A. No I - I believe that the extensive appearance of iron oxide deposits in the affected stream was a direct result of large amounts of fill in the stream and particularly above the rock ledge where I reported anoxia in the sediment. I don't believe those iron oxide deposits would have been as extensive or as thick in the affected stream if that material was not sitting there in the stream bed.

However, Julli and Buckney, under cross-examination, admitted that iron oxide does occur naturally in Hawkesbury sandstone and in areas unaffected by fill (T531 L5-25ff; T568, L44-571ff).

With respect to nitrogen and phosphorus levels, Julli took water samples from creek ME and creek NN (Annexure 'C' to affidavit 20 July 2000), and concluded that the highest levels were recorded in creek ME nearest the embankment toe. Anink also took samples in January 2000 that were also consistent with Julli's conclusion that the highest levels were recorded near the embankment.

Lembit made some comments on the water samples taken by Julli on 13 March 2000 concluding that the elevated nutrient levels found in samples taken near the embankment toe will continue to be a problem as phosphorus is found tightly bound to clay particle in the landfill concluding that (affidavit 14 September 2000, p 6): In my opinion, the transport of such soil particles from the landfill site to deposition sites along the creek presents a long term threat to the bushland along the creek. Soil particulars are a vehicle for the transport of nutrients downstream.

Julli also discussed the presence of the organochlorine pesticide, dieldrin, which was measured at levels below acute toxicity but above the recommended Australian Water Quality Guidelines for Fresh and Marine Waters, 1992. This has been disputed by Anink.

With respect to soil samples, Julli referred to the samples taken by Bowles on 22 May 1998, which contained organochlorine pesticides. Julli commented that although now banned, these pesticides were once widely used as subfloor termaticides within buildings. Therefore, he concluded that the building rubble in the landfill would be the most likely to contain these pesticides, and, under cross-examination, he disagreed with Anink's view (p51) that the use of pesticides for rural purposes on lot 204 was the likely cause (T537-538).

Julli suggested that the presence of organochlorines pesticide is suggestive of the escape of the substances from the landfill, either as a result of the subsidence or through leaching, which can have harmful long-term effects upon the environment.

Julli had a second site visit on 13 March 2000 to collect waste samples to assess whether any nutrients had leached from the landfilled area. The analysis report (Annexure 'C', affidavit 20 July 2000, pp 11-21) indicated that the phosphorus levels were at their highest at the base of the landfilled area.

Table 11 in Anink's report summarises the EPA water sampling and ecotoxicological results for 22 May 1998 (p 50), and concludes that these results showed no significant water quality impacts. Anink also commented on the additional water quality results (Table 12, p 80) collected by Turak in May and November 1998 in that these results of creek ME had similar water quality to that of the other headwater creeks located below rural agricultural land-uses (p 51).

Anink also summarised the sediment and soil sample analysis undertaken by Bowles, and concluded (p51):

· There was no metal or organic contamination of the three top fill samples. · The impact creek sediment sample yielded positive results for a number of organic contaminants including some organochlorines. The values for individual organochlorines ranged from 4 to 6 ug/kg, all well within the ANZECC (1992b) range of background values of 5 to 50 ug/kg.

Anink collected additional water samples in January 1999 to identify the possible sources of various contaminants (see Table 14, p 82), and concluded from those results (affidavit p52):

· Total phosphorus concentrations were all low and well below the ANZECC (1992) guideline values. · Total Nitrogen concentrations in the upper impact creek below the toe of the dam were high and consistent with the use of nitrogenous fertilisers in the general rural area and on the dam face in particular. · All three reference headwater sites had low pH values (4.2 to 4.8 pH units) and all three reference sites had dissolved aluminium concentrations well above the ANZECC (1992) guideline value...One reference creek NN had the lowest pH (4.20pH units) and highest aluminium concentration... This combination of low pH and high aluminium concentration is toxic to fish and many other aquatic organisms... · Six sites had elevated iron concentrations and all supported iron flocculates and/or iron bacteria. The highest iron concentration...was in creek MS just above the confluence of Creek ME.

Anink also compared his results for the upstream impact creek with the downstream reference creek water quality, concluding that these comparisons (p53): confirm that the fill material is not a major contributor of water pollution to the ME creek sub-catchment. The results also confirm that rural activities including building of dams on-line over creeks using imported fill material can and does alter water quality of the locality creeks which generally have more neutral pH, elevated major ion contents and some elevated nutrient concentrations.

Anink took additional samples in February 2000, with the results of the soil and sediment analysis for metals and nutrients shown in Table 16 (p84), and concluded (affidavit p55) from these results, as well as from an additional soil and sediment analysis (Table 17 at p85): that the fill material used to construct the dam was uncontaminated fill with no metal contamination and only minor residues of individual organochlorine pesticides. As a whole, pesticide contamination is within the expected background range as specified in ANZECC (1992b). The fill is considered inert and contained and there is not expected to be any significant leachate to the environment. 159. There was some dispute as to whether the draft Guidelines 2000, which have lower acceptable levels, now places those results above the recommended levels. As the prosecutor stated in his written submissions (p28): However, ANZECC released an exposure draft for public comment in July 1999 of proposed new water quality guidelines. The draft document sets the trigger level at 0.02 ug/kg for further investigation of organochlorine contamination in sediments (see Exhibit 133 , p 33).

Julli (T521 L10ff) stated that these new guidelines are applicable to this case.

With respect to a change in chemical composition of creek ME, Anink concluded that (p 55-56): From the above consideration of all the water and soil quality data, it is concluded that the impacts of the incident with regard to chemical pollution should be classified as a pulse disturbance, as there were measurable contaminants in waters and soils after the event which may have been contributed from the fill material, and as there have been no subsequent contributions from the fill material which has been rendered stable and inert by virtue of the completion of the dam. The impacts of the incident with regard to chemical pollution could not be considered a perturbation as there were no measurable impacts on aquatic fauna (as demonstrated by the EPA ecotoxicology results).

Julli (affidavit 12 March 2001) conducted a further inspection and sampling programme on 11 December 2000 to confirm whether or not pesticides were leaching out of the toe of the embankment, and found a flow of 3L per minute from that source (i.e. creek MN) into creek ME, which he identified as the primary source of nutrients (especially ammonia and nitrous oxide, but also phosphorus) in creek ME.

Anink and Leonard discussed the impact of the development on the aquatic environment, if there had been no negligence, and the works had conformed to the class 4 consent orders (Anink affidavit October 2000 Report, p 171; Leonard affidavit, October 2000 Report, pp30-32). Both Anink and Leonard concluded that extensive impact still would have occurred to creek ME and its surrounding environment including the removal of vegetation and soil in the footprint of the approved dam. Leonard commented on the additional disturbances of machinery on the site (affidavit, p 31): Although the approved batter would not extend into the creekline, some room for machinery to maneuver (sic) below the retaining wall would have required removal of at least 50 sq m of riparian vegetation. This vegetation is considered by Douglas (1997) to be well conserved on a regional level, though not on a local level. No plant species of conservation significance are likely to have occurred in this stand. Disturbance in the creekline as part of the approved construction may have resulted in loss of habitat for Red-Crowned Toadlets Pseudophryne australis.

Leonard suggested the following areas of vegetation had been removed outside of the approved areas (October 2000 Report, p32): Upper slopes 750 sq.m (4% of approved area) Lower slopes 900 sq.m (slightly more than approved area) Riparian 125 sq.m (more than twice the approved area)

Anink also added that (October 2000 Report, p 171): It is concluded that, over the period August 1997 to May 1998, if the specified sediment and erosion control structures had been in place and maintained in the creek-line, there would have been negligible additional impact on the creek line aquatic ecology over and above that which already existed by virtue of the rural activities in the creek head-waters … That is, given the pattern of rainfall up to May 1998 the specified sediment control structures would probably not have been overwhelmed by any individual storm and there was sufficient time between storms to adequately maintain the structures.

Anink also addressed the possibility and impact of sediment escaping into creek ME during construction, prior to subsidence on 18-19 May 1998, and concluded that (affidavit p 176): … the possible impact of minor sediment escape from the sedimentation structures in early May must be judged insignificant. That is, even if the batter collapse had not occurred, the amount of stormwater and contained sediment brought down to the sedimentation structures by the storm alone was far more significant with respect to damage to the aquatic environment than the sediment which was released by the probable failure of sedimentation structures alone.

During his inspection on 11 December 2000, Julli noticed that the sediment control screens below the toe were full and under some stress.

There are two main aquatic faunal groups within the upper headwater creeks at the subject site - amphibians (frogs), and aquatic invertebrates.

White gave a detailed summary regarding any impact that the construction and subsidence of the landfill may have had on any threatened frog species (affidavits dated 16 April 1999 and 7 September 2000 plus oral evidence). He focussed on the presence of three frog species in this type of environment: Red Crowned Toadlet, Giant Burrowing Frog and Eastern Banjo Frog, but did not see any Giant Burrowing Frogs on his site visit.

White's survey (Table 1 of his affidavit 16 April 1999, p8) showed that creek ME had no tadpoles or adult frogs, whereas unaffected creeks MS and SS had a great deal more tadpoles and adult frogs. White suggested that this was due to the change in the topography and nature of the creek bed in creek ME, and the loss of rock pools where frogs breed, after being filled in by landfill. This damage caused the loss of frog habitat for shelter and breeding grounds along the banks of creek ME (see Table 2, White affidavit 16 April 1999, p9).

White concluded that these primary watercourses are suitable for Red Crowned Toadlets, and suggested that the Glenorie area should have a high population of them. The Red Crowned Toadlet has been listed as "vulnerable" under Schedule 2 of the Threatened Species Conservation Act 1995. The prosecutor said in his written submissions (p 43): … The Red Crowned Toadlet exists only in the Sydney Basin, where it has been almost completely removed from the sandstone areas of the lower North Shore end of the Hornsby Plateau and from large areas of the Woronora plateau in Sydney's south. Their loss has been associated with habitat disturbance, usually as a result of residential developments…

Anink conceded these observations in cross-examination (10 November 2000 T883 L8ff): Q. Is it right - you say there what the red-crowned toadlet has adapted to but in fact he is only found in the Sydney basin and in a particular part of the Sydney basin, these sort of Hawkesbury sandstone ridge tops? A.. That's principally the reason why it's listed, yes. Q. And the problem of the loss of them or their habitat and so far as the giant burrowing frog is concerned, their breeding grounds, is that the impact this has on biodiversity, isn't it? A. It's another small step towards less red-crowned toadlets certainly.

White summarised the impact on frog habitat to creek ME (White affidavit, p10): 27. The absence of the Red Crowned Toadlet from Creek 2 ('ME') would be surprising if it weren't for the extent of disturbance to the area. The steeper parts of the creek have been buried and the lower part of the creek has suffered extensive siltation. If Red Crowned Toadlets were present in this watercourse prior to the landfill embankment being constructed their habitat would now be buried. In its modified condition, Creek 2 emerges from the base of the landfill embankment, does not pass over sandstone ledges and does not offer suitable habitat … 28. … Given the suitability of the general terrain and the prevalence of frogs in the neighbouring sites, it seems most probable that the absence of frogs from this creek is a recent circumstance. In my opinion, the likely cause of the absence of frogs, including in particular the Red Crowned Toadlet, in Creek 2 is the destruction of habitat caused by: (a) construction of the landfill embankment in and across Creek 2; and (b) the subsequent transport of sediment and other material further down Creek 2.

White also pointed out that he did not find any frogs until much further downstream, almost at the junction of creek ME and SS indicating the extent of damage (White affidavit 16 April 1999, p11): 31. The siltation and damage to the low-ground vegetation has removed frog habitat from many parts of Creek 3. It has done this in two ways: (a) silt deposition has filled in shallow water pooling areas that some species use as breeding sites; (b) the loss of fringing vegetation along the creek has removed shelter habitat for the frogs. Most frogs will avoid open areas where they are more vulnerable to predation.

White made further submissions with regard to the suitability of frog habitats in the subject site by referring to Julli's water analysis on 13 March 2000, concluding that (White affidavit 7 September 2000): 5. The high levels of nitrogen and phosphorus in the water in dump creek on 13 March 2000 would be a deterrent to a number of species of frogs and in my opinion will prevent most from re-colonising the watercourse. … 7. If as I think is most likely, the elevated levels of nitrogen and ammonia are being caused by leaching of water through the landfill, then the high levels are likely to persist for a number of years…

White made another inspection of the site on 28 February 2000, and concluded: 11. …The time of year and the weather conditions were both favourable for frog activity. It is an appropriate time for detecting frogs. The fact that on 28 February 2000 I did not detect frog species other than the Broad-palmed frog in Creek 2 ('ME') and detected no frog species in Creek 3 ('ME" suggests that the landfill embankment and the landslide have caused lasting disturbance of frog habitat.

Anink stated that, in his view, the effect of the large storm alone on amphibian habitat (Anink affidavit, p60): …the impacts on amphibians would be considered a pulse perturbation for amphibians in the subject creek between the toe of the dam and for some considerable distance downstream. The amphibian populations would probably be considered to have moderate inertia (ie. good ability to avoid the impacts of natural events such as a storms (sic) but more susceptible to the impacts of major storms), moderate resilience (good ability to recover provided the complete population is not lost to a major storm) and moderate stability (good rate of recovery provided the complete population is not lost to a major storm.

Anink further conceded that the impact of fill mobilisation and the storm event would have been extensive through its scouring and smothering effect (Anink affidavit p60): The degree of disturbance is therefore assessed as ranging from a catastrophic perturbation in the section of creek between the toe of the dam and the natural rock ledge for a species such as the Red Crowned Toadlet … to a press perturbation for other species and for the Red Crowned Toadlet further downstream for which recovery would occur to some degree without the need for active remediation.

Macroinvertebrates are considered to be good indicators of river health (Turak affidavit 27 November 1998, p2): 5. Macroinvertebrates are considered to be good indicators of river health as they are abundant, differentially sensitive to various pollutants and respond quickly and often in a predictable manner to disturbance… They are sensitive to a wide range of disturbances including flow alteration, urban and agricultural development, salinisation, siltation, sewage and other organic wastes and heavy metals…

Turak made a site inspection on 29 May 1998 to investigate any harm caused to fauna in the east-west flowing watercourse in which the toe of the batter had been constructed. Turak submitted that the macroinvertebrate community would have been affected severely, due to the fact that its pre-existing habitat had been smothered by fill.

Turak also made observations at three different sites - two in creek ME and one in unaffected creek MS (see affidavit 27 November 1998, p5, par 10). Turak undertook a study to observe the macroinvertebrate communities at these sites (par 18 of affidavit 27 November 1998, p10), and concluded that significant environmental harm caused to creek ME was shown by the poor health of the macroinvertebrate fauna.

Turak made general comments on the significant change of the creek substratum and the subsequent habitat destruction of creek ME as a result of the subsidence burying the creek, and he pointed out that the destruction of the riparian vegetation has resulted in the loss of an important food source for aquatic macroinvertebrates, adversely affecting them.

Turak made a second site inspection on 2 November 1998, undertaking similar study as before with the results summarised in par 29 (affidavit 27 November 1998, p13). Turak supported his findings with similar conclusions with creek ME having very poor macroinvertebrate families. One site further downstream of creek ME had better results than the previous study, indicating a level of recovery.

Turak under re-examination reiterated his opinion that development along Old Northern Road would have far less impact on macroinvertebrates compared to deposition of fill material in creek ME (T212, L49ff): Q. What, if any, comparison are you able to make between the magnitude of that impact and firstly the impact resulting from construction of the toe of the landfill batter in the east west flowing creek? A. I think the impact from these cleared areas would be minimal in comparison with the impact of having the toe of the batter in the creek, because the impact from these cleared areas, they're a common feature of all pretty much - a lot of the creeks I have seen in the Sydney area which - many of which do have a rich macro-invertebrate fauna. This is so because while the impact of the small cleared areas of pastures in the headwaters are some sediment input and nutrient input, because the sediment often gets filtered and doesn't travel very far because the quantities aren't large, they don't smother invertebrate habitats and the nutrients usually are not in high enough concentrations to cause major alterations to the creeks…

Julli noted on his site visit on May 22 1998 (affidavit 30 November 1998, p6) that when he was attempting to net macroinvertebrates within the affected area and had not collected a single insect. He submitted that catching five to six different insect families was the usual indication for a healthy watercourse.

Anink made some comments on Turak's methods and results (March 2000 report p62), and, in cross examination, Turak conceded that the model used was not necessarily accurate for this particular environment (T210 L50ff): Q. Where you have a stream that is ephemeral and basically only flows at the time of high rainfall events, you'd agree would you not that the AusRivAS single season model can give unreliable results? A. That's correct. Q. You'll also accept that in your article you state that the AusRivAS model, whilst a useful model for assessing large scale geographic patterns throughout the State, nevertheless needs more refinement to make it reliable in relation to site specific streams such as the headwater catchments, the headwater creeks in this particular area?

However, Turak, under re-examination, also made the point that, in terms of an unreliability factor for the model used, he would allow for a 10% error. In this case the result would still be reliable as the difference was so large (T215, L7ff).

Anink discussed the potential aquatic habitats in the subject area, stating that (March 2000, p36-37): ...there are few opportunities for retention of water in the natural headwater creeks, and pools, where they exist at all, are mostly small, shallow with sandy bottoms. Whilst additional ground-water is available from seepage through the sandstone layers following rainfall, this source of surface water is only available for recharging drought refuge pools for a short period following rainfall events. As a result there is generally no permanent water, and streams plus seepage flows are ephemeral....The only other suitable (natural) aquatic habitat in the upper headwater creek lines are cool moist areas where seepage moisture may persist for longer periods due to shading and shelter from wind.

Anink also gave a general overview of the life cycle of aquatic invertebrates within this particular type of environment (Anink affidavit, March 2000, p38): Aquatic invertebrates, whether they be the aquatic stages of terrestrial insects or fully adapted aquatic invertebrate (eg insect, crustacean, mollusc or worm) forms, require pooled or flowing water for all or some of their life cycle. Since the aquatic ecosystems of intermittent headwater creeks such as the subject creek are highly variable, the invertebrate biota of the system have to contend with a range of often swiftly changing biotic and abiotic variables.

Anink also relied on evidence of expert authors that discussed the special adaptations of invertebrate aquatic fauna to survive in their environment. He added (Anink affidavit, March 2000 Report p 38): For intermittent creeks, the size and frequency of storms is an important determinant of the composition of the biota of the ecosystem. Storm size can determine whether the biota are diminished by storm related losses or enhanced by provision of additional habitat and linking of isolated pools. The frequency and timing of storms can also determine the type of community which develops in a given stream.

Leonard, Buckney, Lembit, Smith, Turak, White and Anink all dealt in detail with the types of vegetation on this subject site. Leonard's affidavit gives the main detailed analysis of flora in the catchment area.

Buckney visited the site on 2 November 1998 and took samples and recorded plant species at a number of locations down creek ME and an unaffected creek in the subject area (for location of sample sites see his affidavit 30 November 1998, Annexure 'C', p40). The results of the plant species recordings and their frequencies at these sample sites are summarised in Table 1 (affidavit 30 November 1998, Annexure 'D', p41). This also included any introduced species, which will be discussed below.

Buckney concluded that the species present were consistent with the vegetation of an open-forest typical of Sydney sandstone rock type in this area (affidavit 30 November 1998, p7): 17. The tributary system and the affected stream, as well as their valley slopes, are good examples of near-authentic vegetation for this part of Sydney. However, the vegetation beside the stream affected by the subsidence has suffered substantial impact and damage caused by material transported downstream from the subsidence site.

Many plants were smothered and killed, the fill deposits have encouraged the growth of different plant species, and original small herbs and seedlings are unlikely to recover (affidavit, pp 6-9, pars 14-21).

Buckney also discussed the presence of iron oxide deposits in creek ME and its affect on the native vegetation. He submitted that such deposits are present only in anoxic conditions, would prevent plant seedlings being established, and would affect stream fauna.

He also discussed the change in chemical composition of the creek water, namely the presence of hydrogen sulphide in creek ME, which can be toxic to some plants, and submitted that the presence of dead plants within and around creek ME is due to the presence of hydrogen sulphide. The unaffected creek had no dead plants (affidavit, pp9-11, pars 23-28).

Buckney predicted that trees present in the embankment toe and immediately downstream of the disturbed area would die, due to being smothered during the landfill construction and from the subsidence.

He came to the following conclusion (affidavit 30 November 1998, p13): 36… In summary, I consider the existence of the landfill before the landslip to have constituted an adverse impact upon this environment because it introduced an artificial element to an otherwise natural landscape. I consider the subsidence of the landfill to have dramatically exacerbated that impact.

On another site inspection on 23 February 2000 Buckney observed that many of the trees predicted to die had done so, and he anticipated that more trees would do so.

Lembit inspected the site on 31 July 1998 to assess the nature and extent of damage to flora and fauna habitats resulting from the construction and subsequent subsidence of the landfill. He commented, from aerial photos of the environment before and after the fill was dumped, that the "before" photo showed the area adjacent creek MN had contained open-forest dominated by Turpentine, Smooth-barked Apple and Sydney Peppermint, and suggested that this vegetation would have been similar to the vegetation in the unaffected creeks in the area prior to its removal or death.

Lembit also made observations similar to those of other EPA witnesses regarding fill material composition, increased nutrient levels and chemical alteration, weed infestation, loss of habitat of native plants and animals, concluding that all these factors would be a considerable threat to native vegetation along creek ME (Affidavit 16 October 1998, p6): 13. One of the values of the Maroota Crown lands that contributes to its high conservation value is the intact nature of the vegetation, with little evidence of weed invasion in comparison to other catchments in the County of Cumberland.

Smith surveyed a variety of rare plants and animals in the Maroota Crown Lands, that have been listed under the Threatened Species Conservation Act 1995, as well as recording a number of regionally significant native animals. He stressed the high conservation value and biological diversity found in the area. Smith conducted a second site inspection on 13 March 2000, making similar observations to other EPA witnesses regarding weed infestation, dieback of native plants and fill material composition deposited in creek ME.

Leonard and Anink discussed the three distinct vegetation types within the area assessed in comparison to the Douglas (1997) classification scheme as well as their conservation significance (Leonard affidavit 28 October 2000, pp 14-15; Anink Affidavit 28 October 2000, pp 33-34): The vegetation on the upper slope (adjacent to the infill batters) approximates Map Unit 10ar (1) a Open-forest to Woodland; … The vegetation on the lower slopes … approximates Map Unit 10 ag (3) a Open-forest/Woodlands … The vegetation along the creekline approximates Map Unit 10 ag (2) Closed-forest.

Leonard stated that there were no likely plant species of national and state conservation significance in the Closed-forest stands but there were several plants of national conservation significance occurring in the upper and lower slopes (Leonard affidavit, p15). He discussed some of the species found by Smith in his survey on 4 September 1998. For example, Tetratheca glandulosa was discussed and recorded by Smith, but not found by Leonard in his survey, although he did concede that there was suitable habitat for the species in the undisturbed area.

Anink, in his March 2000 report, discussed the following flora issues on the subject site (p 56):

· What plants may have been lost to the storm (pulse) event and to the incident (including initial remediation)... · What plants recovered or were recruited to the impact area following cessation of the storm, the incident and the initial remediation works... · What measures can be taken to mitigate impacts of the combined events...

Anink concluded that, despite Leonard's findings, the only plant community impacted by the incident would have been Closed-forest stands and that "no plant species of national or state conservation significance are likely to have occurred in the Closed-forest stands.." (page 56).

Anink described the impact of the flood alone (page 56-57): A flash flood of the magnitude proposed, would, in all probability, have eroded and carried away some riparian canopy species and deposited sediments in the (sic) around the upper ME creek...There would have been some localised bank erosion and some changes to creek morphology...Opening up of the canopy and introducing sediments into the creek would have opened up opportunities for weed invasion from seed or propagules brought into the area by flood waters...Based on the above analysis of community response to the flash flood component of the incident, the gully floor creek morphology and flora may be judged to have moderate to high inertia (ability to withstand impact), high resilience (ability to recover) and low to moderate stability (i.e., requiring a fair amount of time to recover).

Anink conceded that the fill mobilisation and deposition impacted the environment in the following way (p 57): Gully and lower riparian plants in the upper section of Creek ME below the toe of the dam to the natural rock ledge some 90m downstream received the full impact of the fill mobilisation and deposition. The incident altered the creek and riparian habitat for gully floor native plants permanently, to the extent that active restoration work would be required to facilitate remediation. The force of the deposition of material alone must have physically removed habitat (soils and substratum) plus plants. Other plants would have been irreversibly smothered and some would have been partially buried to the extent that survival was unlikely. With regard to impact on creek and riparian flora in the upper section of the creek the impact was a catastrophic perturbation...as the community buried had little or no inertia (ability to withstand this particular impact), low to zero resilence (little or no ability to recover) and very low to zero stability (recovery time) with respect to the incident. Weeds

Buckney recorded the introduced species in creek ME, and compared them to species in cleared land on lot 204. Most of those species found on lot 204 had colonised in the fill in creek ME, and Buckney concluded that these introduced species on the property were the most likely source of seeds of these introduced plants. He further concluded (Affidavit 30 November 1998, p5): 11. ..Some of these species have colonised parts of the fill and I would expect their seeds to have spread into the stream valley from the time they first established at the top of the property … In my experience, herbaceous (non-woody) plants of these sorts have substantial difficulty in establishing in natural, undisturbed bushland and I am of the opinion that the deposition of the fill material has allowed these species to establish in the stream, adversely affecting the natural condition of the vegetation.

Buckney also discussed the deposited material that had been dumped to form a bank on the southern side of creek ME downstream of the concrete pontoon. This bank has been colonised by a number of weed species (shown in Photograph 'B15', Buckney affidavit 30 November 1998).

Lembit conducted a second site inspection on 13 March 2000, and noted that the presence of a number of exotic species (listed in his affidavit 14 September 2000, p 2 par 6) had increased dramatically since his last site inspection in July 1998. Lembit suggested that these exotic species need continual weed control measures if the impacts on the natural environment are to be reduced. Lembit made further observations of twenty-five weed species in creek ME and suggested that this number is far higher than any other similar stream in the Maroota Crown Lands area.

Smith also noted exotic plant species (Smith Affidavit, 16 September 1998, p 9, par 21) and agreed with Buckney that such species were most likely transported as seeds within the sediment of the fill down creek ME.

Smith predicted the future of weed infestation in this area (affidavit 16 September 1998, p10): 26. While invasive weeds may take a number of years to colonise a pristine bushland area, once entrenched they rapidly grow to dominate native flora, out competing the slower growing natives. This leads to permanent change to, and simplification of, the botanical composition of the plant associations within the riparian zone, damage to the quality and chemistry of the soil, declining biodiversity and reduction of the area's habitat quality and faunal diversity.

Smith also warned about the difficulty in controlling weeds once established (Affidavit 16 September 1998, p12): 33. … As these predicted weed species colonise and grow they will seed, spread and be very difficult to contain and control. Their seeds will spread by water flow, in the fur and droppings of native animals and by the wind. Over time this weed invasion will proceed further downstream along with the sediment and nutrients…

Turak made an interesting point from his site visits on 29 May 1998 and 12 July 1998. He did not record any exotic weed infestations at any of his sampling sites in creek ME and MS, and concluded that the fact that unaffected creek MS and affected creek ME had no weed infestation indicated that rural-residential activities were not having a serious impact on the creek ecosystem in general prior to the landfill. The disturbed area of creek ME, which was subsequently infested with weeds, shows the impact the construction and subsidence of the landfill had on the site.

Anink and Leonard both disagreed with the observations made by Turak stating that (Anink Affidavit p 35; Leonard Affidavit 28 October 2000, p21) Anink commented: Leonard also found that there are a number of upper creek sections in the locality which support similar introduced plant species. Weeds are observed to have established in disturbed areas, or have developed from propagules introduced or established in dumped material. He also noted that several sites along the ridge line, such as nurseries, farms and orchards are probably contributing increased levels of nutrients to other feeder creeks of Little Cattai Creek …

Anink (March 2000 p 14) agreed with the EPA witnesses that the landslide would most likely be the major cause of the weed infestation downstream of the embankment toe in creek ME from the mobilised fill travelling downstream, but also added that it "could equally have recruited from other local sources via a number of dispersal methods". Anink also gave his own summary in regard to weeds: ...it would appear that there are widespread occurrences of the species of introduced plant species recorded from Lot 204 throughout the locality. In most cases, including that of Lot 204, the number of species decreases rapidly away from the developed or disturbed areas...Propagation of weed species further down the creeks into the Maroota crown lands and the Little Cattai Creek catchment would appear, in general, to be uncommon; probably due to a number of factors including the distances involved, the unsuitability of the light regimes plus and (sic) unsuitability of the sediment types along much of the creek lines. However, general rural activities may also result in water quality attributes which enhance weed growth...

Leonard in his March 2000 report (Affidavit 28 October 2000, pp 17-19) listed in Table II the introduced species he recorded in the subject site. Leonard criticised the fact that the weed species listed by Lembit and Smith did not indicate numbers or locations and, therefore, comparisons between the two site visits in 1998 and 2000 could not be made. Leonard also made the suggestion that grazing animals such as Swamp Wallabies and other marsupials will inhibit the recruitment of certain weed species (Leonard affidavit p19). Leonard undertook a survey involving ten sites within lot 204 to confirm the findings of exotic weed species recorded by Lembit, Smith and Buckney, and Leonard concluded (Leonard affidavit, p21): The results of this cursory survey indicate that there are several trouble spots in the area which are supporting introduced plant species which have either established in disturbed areas, or have developed from propagules introduced in dumped material. It is also likely that there are several sites, such as nurseries, farms and orchards which are responsible for increased levels of nutrients flowing into Little Cattai Creek …

In his second report (dated October 2000), Leonard made further observations of the different weed species present on the batter face as well as in creek ME just downstream of the embankment toe: Compared with the results from January 2000 … it is apparent that a greater number of weed species are present in the creek line and on the batter slopes in October 2000. It is also apparent that weed growth in and near the upper creekline is more extensive, at least in the section of creekline from the toe of the batter to the large mound.

Leonard also suggests additional sources of weed infestation, not related to Waight's negligent works (Leonard affidavit 28 October 2000, p30): In the context of the unnamed creek in Lot 204, consideration needs to be given to several non-negligent factors which may have resulted in the introduction of weed propagules into the site. These include the presence of weed propagules on the machinery used to carry out the dam enlargement for which consent had been given, weed propagules transported downstream from disturbed sites adjacent to Old Northern Road, airborne seeds carried from adjacent nurseries and other sources and seeds transported by birds and other animals. Consideration should also be given to current activities by the new owners, including the construction of new roads, importation of planting and road-making materials and the planting of exotic weeds.

Leonard agreed that some form of control of the introduced species is needed to prevent further invasion downstream of creek ME.

Julli carried out a further site inspection on 11 December 2000 (affidavit 12 March 2001) and took some photographs (Exhibit P142), which clearly show tall weeds, especially flowering thistle, on the large mound established downstream of the toe, and otherwise "populating the creek" ME between the toe and the rockledge. The court had observed the weed-infested mound on the site inspection, and Julli observed (T12.3.01 p11 L1-3) that it is covered in fine silt material, excellent for growing weeds. (See also Buckney photo A5). Similar weeds are growing on the batter face, but not generally in the valley.

Julli also observed similar weeds downstream of the rockledge for between 50 and 100 metres.

There is no doubt that there has been extensive environmental harm in the subject site catchment area, some of it as a result of the construction of the dam wall, but most of it as a result of its subsequent collapse into creek ME.

Although it must be conceded that some damage would have occurred as a consequence of the approved works, the extent of such damage to the relatively pristine riparian environment has been far greater. As a consequence, there has been substantial loss of habitat and native plants, and a permanent change to the physical landform and chemical composition of creek ME, in particular immediately below the toe embankment.

Past human activity in the area in general has played some part in harming this environment, but, I cannot conceive that such harm is anywhere near as devastating and extensive as the harm which has undoubtedly been caused by the landfill subsidence.

Regardless of who is more correct about the environmental stresses in play as at 18 May1998, the local environment had successfully resisted them up to that time. All local creeks had the flooding to contend with, but creek ME "copped" a major landslide with a significant amount of inappropriate waste in the soil.

It is estimated by Swane that 2,852 tonnes of fill landed in creek ME, and that was comprised not just of sediment, but also bricks, broken cured concrete, reinforcing steel, timber, paper, carpet, bitumen, tiles, tyres, plastic products, clothing, beer cans, and household refuse (T1256). The creek and riparian zone were buried for about 125m, and some of the lighter materials travelled downstream of the toe for up to 1,000 metres, well into the Maroota Crown Lands (T1335-6). One of the concrete pontoons moved downstream into the centre of creek ME.

Far more damage would have been sustained had it not been for the presence, and effect of, the rockledge.

The defendant claims that not all the harm in evidence is punishable, as some would inevitably have resulted from the carrying out of the development, strictly in accordance with the covering DC and the court's orders. The defence led evidence which sought to define the extent to which the environmental harm proven to have occurred would have occurred in any event, without any negligence on the defendant's part. Royall v The Queen (1991) 172 CLR 378.

The defence submitted that where the consequences of a defendant's conduct are exceptional and extraordinary and neither intended, foreseen, or reasonably foreseeable, the defendant cannot be held to account for the full extent of the harm. R v Boyd [1975] VR 168. The effects of an unintended catastrophe should not swamp all other considerations so as to distort the amount of weight all relevant factors are given. R v Boxtel [1994] 2VR 98.

The prosecutor relied on Talbot J's comments in EPA v ADI Pty Ltd [1999] NSWLEC 14 (at par 18) as authority for the proposition that if the defendant operated beyond or in breach of the DC and/or the court orders all the harm proven, including that which would have resulted without negligence, is punishable. No other authority could be found for that proposition, but it was not criticised on appeal.

ADI involved a strict liability offence in respect of a breach of the conditions of a pollution licence, and I think His Honour's conclusion is apposite for such a case, but not one of criminal negligence (T1301).

Orders under s 14 of the EOPA are, in the prosecutor's submissions, to be regarded as being in the nature of victim compensation, and are ancillary to the punishment imposed on the offender (T1285-6). Mr Laucis says they are "part and parcel of the sentence". Certainly, they are an imposition on the defendant, both personally and financially, in most cases, and Mr Buchanan acknowledged that "restitution … at substantial sacrifice… may be taken into account as mitigation" (T1286 L11-14).

Bignold J has accepted a submission that a s 14 order is in the nature of a penalty, which may be reflected in a reduced fine. Byron Shire Council v Wain & Anor [1999] NSWLEC 13 (at par 18).

Nonetheless, Mr Laucis is absolutely correct to point out that the objective of s 14 orders must be "restorative" rather than punitive, and the court notes that an amount of $20,000 out of the sale price of lot 204 has been held in reserve for expenditure on remediation works.

The parties were unable to agree on the remediation issues, and had to argue them further after judgment on sentence had been reserved.

A number of witnesses at the trial had given their expert opinions on the remediation work needed to be undertaken on the subject site for the future:

Buckney suggested the detailed removal of introduced plants from the riparian zone and planting native species. In particular, he suggests the following works (Buckney affidavit 12 September 2000, p5): 21… (a) weed removal and control on the artificial bank and along the stream below the retaining structure; (b) planting of indigenous plant species in the area to achieve a higher level of cover; (c) maintenance of the weed-free nature of this area and the plantings.

He estimated the initial work would cost around $35,000, with additional amounts of around $7,000 to $10,000 a year for continued maintenance of the area.

Smith also made comments with respect to remediation (affidavit 16 September 1998, p9-10): 23. The control of weeds is costly and in sensitive environmental protection areas is best performed by skilled practitioners using labour intensive 'bush generation' techniques. Permanent and complete eradication of weeds in bushland areas is often impossible due to the continued impacts of sedimentation, sustained high nutrient run-off, re-infestation, the simplification of the species mix, changed light levels, declining native seed banks and changed soil chemistry. … 24. The environmentally degrading impacts of weed germination and nutrient enrichment could remain in the creekline for decades.

Anink prepared a "rehabilitation report" (Appendix 'F' of Anink affidavit pp146-167), giving a detailed assessment of rehabilitation and restoration requirements for the subject area and how to implement these requirements over a period of time. It gave extensive definitions of the short, medium and long-term impacts on this subject site (Anink affidavit, p150), followed by detailed recommendations for restoration needed for the site, particularly with the recommendations made by DLWC Soil Resource Officer Carl Vincent and the DLWC Staged Cleanup and Rehabilitation Operations, and outlined two main requirements for rehabilitation (p158): (a) re-establishment of a suitable physical creek form to support aquatic fauna including aquatic macroinvertebrates and amphibians, and (b) rehabilitation of native slope and riparian bank flora.

Anink followed up with recommendations for the subject site to achieve these requirements (March 2000 report, p 63 and October 2000 Report p 148): (i) Active creek remediation works (reforming of creek line and creek habitat plus active weed eradication and native planting) should take place in the upper section of the creek for about 90m downstream of the toe of the dam (ii) Some minor remediation works (spoil removal, restoration of creek lines and weed removal) be undertaken in a section of about 20m beyond the upper section. (iii) Seasonal weed and minor spoil eradication works be undertaken for the length of the creek for up to 700m downstream from the toe of the dam.

Anink also suggested that such work should be undertaken manually to minimise further damage and that large equipment is not used in the creek bed. Furthermore (Anink affidavit, March 2000 Report p 63): Once these works are undertaken there will be some seasonal works to monitor and eradicate weeds, monitor and remove sediment build-up plus some additional selective rehabilitation planting. All these tasks are of a minor manual nature, requiring no machinery and would be best facilitated by use of a professional bush regenerator sub-contracted on a seasonal basis. It is concluded that once the main rehabilitation tasks are executed (two years), additional sediment/weed monitoring and minor revegetation tasks would require about three additional years.

Anink stated the need for rehabilitation as a result of the "combined impacts of shearing forces, scouring forces plus smothering as the material moved and then was deposited in the creek, provided a 'catastrophic perturbation' - defined as an impact on the environment which is not reversible without remediation" (p64).

Leonard (in his March 2000 report) suggested similar recommendations, such as extensive revegetation of the affected area with a complete canopy cover of trees, shrubs, grasses and forbs from the suite of species that originally occurred on the site as well as reconstruction of the creek landform areas and weed removal. Leonard also recognised that "such a rehabilitation operation would require careful planning and would require long-term monitoring and maintenance" (p22 affidavit 28 October 2000).

The post-trial negotiations between the parties crystallised their remaining areas of disagreement (Exhibit P141 and Exhibit W22).

As indicated by the later evidence from Julli and the photographs he took on 11 December 2000 (Exhibit P142), weeds are of particular concern, and all the remaining concerns call for persistent monitoring and effort, and substantial expenditure over a period of years.

Davies suggests 5 years is adequate, and the EPA nominates 20 years, but with liberty to apply.

The weed-infested mound (referred to in the Prosecutor's Amended Notice of Motion as the "artificial embankment") is the result of a "clawback" of waste substances disposed of, and/or negligently allowed to escape, by the defendant.

The total recapture of the escaped materials is mooted to require a potential expenditure of $1 million, which is obviously impossible to achieve.

Having reconsidered all the material before me on environmental harm and possible rehabilitation and remediation, the correct response of the court is to accept the EPA's submissions on the s 14 orders, and will make the orders sought in the Amended Notice of Motion filed in court by the prosecutor on 29 January 2001.

The defendant is charged with two offences - one dealing with "negligent construction" and the other with "negligent escape".

Both offences arise out of the same "transaction" and the same factual position.

Both are predicated on environmental harm having resulted from the negligence of the defendant, and the nature of that harm, but not the amount alleged, is very similar in both cases.

The court must address the respective objective gravity of the two offences, and then apply the appropriate "discount", in each case, in respect of questions of the subjective culpability of the defendant. Clearly much more harm arises in the "escape" matter than in the "construction" matter.

The sentence for each offence must be proportionate to the gravity of the crime in its objective characteristics. Hoare v The Queen (1989) 167 CLR 348. The penalty imposed for a negligence offence would be expected to be less than for a wilful offence (T1293 L17-27). Ibbs v The Queen (1987) 163 CLR 447.

Once the penalty is arrived at for each offence, the principal of "totality" must be applied. Pearce v The Queen (1998) 194 CLR 610; R v Holder [1983] 3 NSWLR 245; EPA v Forestry Commission [1998] NSWLEC 318. The defendant must not be punished twice for elements common to multiple charges.

The defendant has pleaded guilty to the elements of each offence - lack of lawful authority, negligence to the criminal standard, and causing environmental harm.

The prosecutor has put to the court submissions in "aggravation", and the defendant has put some matters in mitigation.

The prosecutor must prove "aggravating" factors beyond reasonable doubt, but the defence must prove "mitigating" factors only on the balance of probabilities. A sentencing Judge must not take facts into account in a way adverse to the interests of the accused unless they are established beyond reasonable doubt. R v Olbrich (1999) 199 CLR 270, and R v Storey [1998] 1 VR 359.

On the question of absence of lawful authority, as an element of the offences charged, the prosecutor essentially alleges that Waight was carrying on a business-for-profit in accepting all the landfill, that he was "trading" as "Glenorie Tip Facility", and that, in so far as the Council's consent, and some class 4 orders made by this court "authorised" some works on the site, their ambit was exceeded, so as to render them prohibited by the Environmental Planning & Assessment Act 1979, even if some sections of the Act and the LEP were complied with.

Mr Preston acknowledged that the defendant's plea of guilty applied to breach of the DC and the class 4 orders (T1292).

However, the prosecutor has also alleged that the defendant needed, but had none of, the requisite environmental or waste licences. The prosecutor tendered certificates to the effect that, at the relevant times, the defendant's premises had no relevant licence under the Waste Act (Exhibit P130), nor one under the Pollution Control Act 1970 (Exhibit P131).

The prosecutor submits that: (a) absence of lawful authority, as an element of the offences, connotes the absence of " such lawful authority as was required in the circumstances ", namely development consent and relevant statutory licences (closing address p10). Gilmour v DPP (1995) 134 ALR 631. (b) the development consent must be for storage of fill and waste materials, and not simply for dam wall construction. Holroyd City Council v Murdoch (1994) 82 LGERA 197. (c) the defendant breached the terms of his consent, and the conditions attaching to the class 4 orders of the court, so neither of those can amount to " lawful authority " in this case. Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132. (d) having failed to get the requisite licences under the Pollution Control Act 1970, CW Act, and Waste Act, the consent, and the court orders do not relieve the defendant of his requirement to have such licences. Brown v EPA & Anor (No.2) (1992) 78 LGERA 119.

The prosecutor says that the evidence indicates: (i) that Waight was advised, by BHSC and the EPA, that he needed a Waste Act licence, and should be paying a waste levy, (ii) that he knew that, if he paid such a levy, he could not attract the waste he needed to fill the site, (iii) that he had other relevant business experience, with landfills, (iv) that he represented to Ku-ring-gai Council that the court's class 4 orders were a " licence " to receive materials at the landfill site (see Birkinshaw, Annexure 'A'), and (v) that his consultant, Walker, sent him the relevant EPA Guidelines, including as to licence requirements ( Exhibit P59 ).

An application for the requisite licences would have ensured environmental consequences would be considered, and failure to do so can amount to negligence on the defendant's part. EPA v Daracon Engineering Pty Ltd (1998) 97 LGERA 415.

Waight deposed to obtaining legal advice, and advice from his consulting geotechnical engineers, to the effect that he needed no Waste Act or Dams Safety licences. EPA v Baiada Poultry Pty Ltd [2000] NSWLEC 249.

He pleaded not guilty to the two charges regarding failure to hold licences, and maintained that plea until the prosecutor elected not to proceed on them once Waight pleaded guilty to the two Tier offences.

Mr Preston submits that having made that election the prosecutor cannot rely on those statutory charges in this sentencing hearing, as the High Court has held that the court, in these circumstances, must sentence on the basis that the defendant is not guilty of those offences R v De Simoni (1981) 147 CLR 383.

272. Whereas Buckney opines that consent should probably never have been given for this project, it is not the defendant's "fault" that it was and that it approved a large landfill so close to the creek. However, it is alleged that the defendant did not adhere to the DC in several respects: (a) Technically, the use of pipes as a (temporary?) spillway device was a deviation from the approved specifications, but they were employed on the advice of the expert hydrologist, endorsed by Walker. (b) Technically, the commencement of construction of the zigzag access track across the face of the embankment was a deviation from the specification of a direct access track down the eastern edge of the embankment, but the specified access had too steep a slope and the defendant should not be regarded as criminally culpable for pursuing, albeit without formal approval, a desirable alteration of the project. (c) The zigzag track required some cutting of the hillside outside the approved envelope in order both to construct the track, and to facilitate its use by the vehicles usually employed on such projects. (d) The Council wanted a particular regime of " testpits ", but the supervising geotechnical engineer considered they were unnecessary. (e) A naturally occurring consequence of end-tipping was the spillage of some fill material beyond the bottom of the project's envelope, but even if Waight intended to comply with the " bottom up " strategy, the material had to get to the bottom, and end-tipping was seen as the only way. I am not satisfied from the evidence that there was any alternative, and the defendant now accepts, in any event, that it was negligent of him to continue end-tipping and not actively pursue alternative access arrangements. No expert, and no regulator, made any adverse comment to him about end-tipping until 11 May 1998. (f) The doing of work beyond the designed sides and base of the envelope (T984 and T1322-3) was obviously a necessary occurrence (T1328). Pells' Figure 2 (in Exhibit P26 ) shows the " excesses ". In the case of the base, it was more than the appropriate amount, partly the result of a surveying mistake, but it was necessary to do work there to some extent because sediment control measures required by the consent had to be installed. The construction of the toe in and across the watercourse, and at an angle to the line followed by the crest, instead of parallel to it, is entirely culpable. It was not approved, nor recommended, nor properly explained (T444 L30-50). (g) The failure to compact the fill adequately - there is evidence of some compaction, or compression effect greater than gravity, having been achieved (T1001 L18-25) - is certainly culpable, but the degree of culpability has to be tempered by recognition of the fact that as at the date of the collapse the embankment was " work in progress ". No access to the base had yet been achieved so systematic compaction " from the bottom up" was not yet possible. (h) Pells notes slopes 35 to 41o, c.f. 26.6o ( Exhibit P26 p14 par 7). Having a slope with a lower " factor of safety " than the specified slope of 2:1 is culpable (T1254), but the comments in (g) above, about " works in progress " and access for compaction, etc, are again apposite. (i) The use of concrete pontoons was contrary to specification and less desirable than what was approved, and the failure to comply in that respect is also culpable. Davies acknowledged that they were particularly unsuitable in the watercourse (T997 L50-55). (j) The failure to strip vegetation as required was in breach of the consent, but it was minor and played no role in the causation of environmental harm. That which remained unstripped may have died from the impact of fill, but would have died as a result of removal if the defendant fulfilled the condition. (k) Demolition material was acceptable as fill, but it was entirely foreseeable that it would contain nutrients. Anink's evidence is that the concentration of nutrients did not infringe the ANZECC guidelines. However, the evidence is clear (see video of 16 May 1998 Exhibit P2 ) and, indeed, Waight admitted (T1183 L15-33), that he accepted " small quantities " of putrescible waste, plastics, vegetative matter, steel, household goods, rubber gloves, tyres, drums, etc, but he said he was " pretty rigid about … keeping it out ".

273. In this case there is no allegation of wilful harm, wilful blindness, or reckless indifference. Negligence is a "lesser" form of "mens rea" than those. EPA v N (1992) 26 NSWLR 352.

274. The essential feature of negligence is carelessness - did the defendant fail to exercise such care, skill or foresight as a reasonable man in his situation would have exercised? For negligence to be adjudged "criminal", the defendant must show a disregard for the environment such that the community would consider it should be punished as an offence, not only civilly. However, no element of wilfulness is required - it is not necessary to find that the defendant intended the results of his acts or omissions. See NSW Sugar Milling Cooperative Ltd v EPA (1992) 59 A.Crim.R 6; EPA v Ampol Ltd (1993) 81 LGERA 433; and CSR Ltd v EPA [2000] NSWCCA 373.

275. In Ampol, Mahoney JA said of the term "negligence" (at 438):

In some cases, terms of this kind may be used merely to indicate that the other elements of the offence, for example, contributing to conditions of the relevant kind, need not have been done with intent and that something less is sufficient. However, ordinarily, the term involves, inter alia, two things: that there was a duty not to do the act impugned and that that act was done. In the present case, the legislation intended that acts not be done which would contribute to the relevant conditions. But, of course, the legislative intention went further: the legislation required that in doing what was impugned, the accused fell below the standard of conduct required of it.

276. The test is that the risk of environmental harm was foreseeable by a reasonable person in the position of the defendant, not that the defendant subjectively foresaw the risk himself. Council of Shire of Wyong v Shirt (1979) 146 CLR 40.

277. Waight says that he did not foresee the risk as likely to be any greater than if he had strictly complied with the DC and the court orders. He believed he "had undertaken adequate practical measures to mitigate harm to the environment" (Waight pars 253-4, and T1150 L34-42).

278. Mr Preston submitted that a finding of "environmental negligence" means that "the forbidden … harms to the environment were not actually foreseen … but the law attributes to the defendant a mental element [for a criminal offence] because a reasonable person in the circumstances of the defendant ought to have foreseen that those prohibited consequences would flow from the defendant's conduct" (T1293).

279. In the s 5(1), "negligent construction", case I find proven beyond reasonable doubt only the conceded allegation that it was negligent to "end-tip" the waste received by the defendant, and not to compact it properly.

280. In the s 6(1), "negligent escape", case I find proven, beyond reasonable doubt, the following allegations of negligence in the particulars filed: (b) end-tipping and failure to construct in layers from the bottom up; (i) inadequate compaction of the batter of the landfill; (k) failure to obtain and maintain adequate expert supervision; (l) construction inadequate to withstand foreseeable heavy rain.
281. The other particulars of negligence in respect of both charges have not been proven beyond reasonable doubt, and I make the following comments on the most important of them: (1) " Stability " of the batter

Various concerns about " stability " are expressed in the evidence, but none were expressed to Mr Waight, or anyone close to him, until 14 May 1998 (Walker, Exhibit P63 ).

However, opinions differ on the question of " stability ". The geotechnical experts say " unstable" means " moving ", and they speak of a " factor of safety " as a measure of the potential to do so. Waight's batter had a low factor of safety, but stood successfully from 1994 until 18 May 1998. " Marginal " stability was a feature of this batter as a direct consequence of end-tipping, which Waight had practised continuously. The batter succumbed only when another event, the rainstorms, intervened.

The experts agreed that a lower factor of safety is to be expected during construction. While sheer size was of concern to Walker in May 1998, Davies testified that size of itself does not change the slope angle or the factor of safety.

The factor of safety could have been improved by layering and compaction, but they could not occur without better access, and end-tipping inevitably continued while the zig-zag track was not present. Such a track was suggested by Walker, to both Waight and BHSC, but not followed through. It would have confronted serious site constraints and involved going beyond the batter envelope.

No sediment controls would have withstood the aftermath of the rain events, but there is no cogent evidence at all that those that were in place were either not adequate or not working adequately. Their specifications were agreed upon between Walker and BHSC, they complied with the CALM guidelines, and they were sanctioned by the consent orders. They were thought adequate by J&K on 30 September 1997, by Council's Mr Roberts on 10 March 1998, and by Walker on 14 May 1998.

Johnston queried, on 7 November 1997, the possible need for a sediment pond in addition to them, but Walker disagreed, and the idea was not pursued by the EPA, until 8 May 1998 when they seemed to be working reasonably well. The pontoons also restrained sediments, and the water was seen to be clear below them.

282. Profit is not an element of either charged offence, and intention to make a profit need not be proved. Profit from the defendant's venture is not a necessary or intended consequence of the offence c.f. EPA v Gardner [1997] NSWLEC 169. Disposing of waste, or allowing a substance to escape, in the course of carrying out a scheme to make money, does not prevent either form of conduct from being engaged in negligently. If a "profit" can be causally linked, so as to be found to be an intended consequence of criminal conduct, it can be a matter of aggravation, which must be proved beyond reasonable doubt. Olbrich.

283. The prosecutor led evidence about the financial arrangements made for the delivery of fill to the site, and the various ways in which fill was attracted to it, and relied on O'Leary v The King (1946) 73 CLR 566, and Camilleri Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683, to go beyond the factual matters underpinning the precise charges laid, in arguing a contextual basis for the setting of penalty, namely, what Dixon J described in O'Leary (at 577) as:

…a connected series of events … which should be considered as one transaction … without … which … the transaction of which the [offence] formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event.

284. The defence collected (in schedule 1 to its submissions) a chronicle of the defendant's statements - his "constant assertion" (T1341 L40) - that his fundamental purpose was to enlarge his farm dam.

285. The defence case asserts that Waight was operating the site as a landfill to achieve the necessary volume of fill, and, on the way, to defray the costs of his dam enlargement; his dominant purpose was to enlarge the dam, for his property's residential, agricultural and bushfire fighting purposes, and not to make money out of accepting waste.

286. Waight denies that he ran this "tip" for profit (T1027-8), despite the fact that he conducted other landfills at the time (T1029-30).

287. In this case the income flowed from the receipt of fill, within the terms of the DC and the court's orders. He did not charge Amtree for its delivery of fill but, after the consent orders, he needed to attract more fill in order to finish the job within the time set by the court, so he more aggressively marketed the site and offered concessional tipping fees.

288. Waight's evidence (MW par 250) is that up until 30 June 1998 he spent $88,825.00 in carrying out the dam development. The evidence of his income from the landfill operation from late 1996 until based on the prosecutor's evidence, May 1998 (MW par 249 and schedule 2 to submissions) is $270,000-$275,000, much of it at cut-rates to attract the necessary fill. The defence estimates Waight's total outlays until the property sold in August 2000 at $887,185 (c.f. nett sale proceeds $887,500 - see submissions par 567).

289. While he operated the site with some of the "trappings of running a business" (T1345 L32ff) he gave significant concessions on fees and I cannot see a profit made, on the evidence before me. In any event, one cannot conclude whether or not he made a profit, until the end of the project, when one can subtract costs incurred from income received.

290. In cases like this, one takes money from fill suppliers after one has incurred design, etc. costs, and before major formation works are done. Work on this project was halted, by orders and by storm damage, before that last costly stage commenced (see T1340).

291. Even Vaughan, with whom Waight has serious evidentiary disagreements, says that Waight did not make "much" money out of their arrangement (T278 L3-6).

292. Here the crimes charged embrace negligent receival, disposition and escape of waste. There is no causal link established between collecting money and failing to take reasonable care.

293. I conclude that Waight made no financial gain from his negligence, and I am not satisfied beyond reasonable doubt that such was his motivation.

294. Among the considerations for the court in assessing the objective gravity of environmental offences are those set out in s 241 of the POEO (the re-enactment of s 9 of the EOPA. Paragraph (e) of the section having been agreed not to be relevant to this case, the following four considerations apply: (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.

295. I now move to consider each of those in turn. (a) actual or likely harm:
296. I have already summarised the evidence of environmental harm. It is necessary to try to separate the harm respectively caused by the two offences charged. It can be readily observed that the harm caused simpliciter by the way in which the dam was being constructed, as measured by the harm in evidence prior to 18 May, is reasonably minor when compared with that which flowed from the completely unintended "catastrophic failure" of the structure during the rainfall event 18-19 May 1998.

297. Allowance must be made for the harm that would inevitably have flowed from the project in the absence of negligence (T1335-6). The DC granted by BHSC was substantially modified by the court orders. The project became a massive landfill near an intermittent creek which fed into the Hawkesbury system, but it was the subject of a DC and the court orders. Not all the defendant's deviations from that approval, as modified, were negligent and not all his deviations or negligence caused harm. Even without Green's mistake, the embankment was to end up very close to the creek, and, even without any deficiencies in the J&K design, some work was necessary in the creek area, at least work for the purposes of sediment control.

298. In the s 5(1), "negligent construction", case I am satisfied, beyond reasonable doubt, of the following environmental harm:

(a) permanent change to the creek ME, its riparian zone, its vegetation, and habitat by/from the placement of the toe structure within it. (b) the escape downstream of approximately 1 tonne of sediment and demolition material (Dekker). (c) the likely escape of further quantities of such material whenever the creek flowed through the retained material. (d) minor disturbance of habitat. 299. In the s 6(1), "negligent escape", case I am satisfied, beyond reasonable doubt, of the following environmental harm.

(a) complete obstruction and serious pollution of the creek ME. (b) serious aggravation of the problem of weed infestation, some of which would have resulted from any escape of imported sediment at any time. (c) waste debris percolating down the Little Cattai Creek for a substantial distance. (d) damage to vegetation and to habitat, especially for frogs. (e) continuing damage from leachate containing nutrients. (f) permanent change in the appearance of the creek environment within lot 204. (b) mitigation measures available: 300. The defendant had available to him the geotechnical expertise of J&K, and could have sought more assistance, as the project developed, from J&K, surveyor Green, and hydraulic engineer Maxwell, or others he knew from his project management work.

301. While he is insistent that he ensured that Amtree removed inappropriate materials (MW pars 39-40), and could easily have taken the same stand with later suppliers, no sorting, or no adequate sorting, appears to have taken place.

302. In general terms, he seems to have acted quickly to control the damage once the rainfall event occurred.

303. He engaged appropriate clean-up equipment, delivered letters to J&K and Council within a short time, and followed the advice and instructions that resulted from those approaches, including re-engaging Maxwell, and engaging Testrite.

304. He has carried out all the post-event works recommended by Walker, Davies, Anink, and others, including landscape improvements, and has indicated a willingness to attend to reasonable requirements for remediation works, setting aside $20,000 of the sale proceeds for that purpose. (c) foreseeability:

305. The defendant acknowledged to Walker as early as 8 March 1996 (Exhibit P38) that the safety factor of the project appeared low.

306. He was, and held himself out to the consent authority and the court to be, a professional person experienced in proper dam construction methods. As such, he cannot be said to have misunderstood the terms and import of the DC conditions and/or the class 4 orders, especially as to matters of slope, layering, compaction, testing, avoidance of the watercourse, expert supervision, and the need for proper sediment and erosion controls.

307. The collapse, and all the harm that eventuated in this case, were, in my view, reasonably foreseeable. (d) control:
308. Waight was the owner of the landfill site, but relied upon experts, especially when it came to questions regarding placement of the toe in the east-west watercourse. He had, obviously, no control over the magnitude of the storm event, nor, on the evidence, the overtopping of the dam.

309. There was an attempt in the defendant's submissions to sheet blame home to others, including Mr Walker of J&K, but Waight was the owner; he was the one who engaged the experts; he presented himself as an experienced project manager; he showed a preparedness to sack consultants; if he expected Walker to be more active (e.g. "like" Walker's colleague Hawkins had allegedly been on the Dural job), he was in the best position to insist upon more active supervision (Waight affidavit par 71), and he frequently telephoned J&K to "run things past" Walker.

310. Obviously, to some extent, "trusted advisors", such as Green, Maxwell and Walker, exert some degree of indirect control over what occurred on site, but I am satisfied, by the evidence, that Vaughan had little real control of relevant events on site. Consciousness of Guilt

311. The prosecutor relies on Waight's pre-offence conduct to establish his consciousness of guilt, despite his pleas of guilty (T1352 L25-31).

312. Waight made important mistakes - such as relying on the DC and the court orders as directions to enlarge the dam without other approvals - but I am not convinced beyond reasonable doubt that he told any lies, and, in any event, no element of deceit or fraud forms part of the offences charged.

313. Much of the defendant's version of relevant events relied upon by the prosecutor is entirely corroborated by relevant evidence, and/or an adverse inference against the defendant is not "the only rational inference to be drawn" from the relevant evidence (T1356 L25-26).

314. Nor am I convinced beyond reasonable doubt that he either deliberately withheld evidence, or tried to destroy or exclude evidence, that may have implicated him in worse wrongdoing than appears on the face of the factual evidence. He categorically denied those allegations (T1203-4). "Subjective" Considerations

1. The personal circumstances of the defendant himself

Waight was born on 26 March 1945. After leaving school in 1962 he worked as a trainee sales representative with Ciba Geigy until conscripted into army service 1965-67, during which time he worked in the Engineering Corps in Vietnam.

On return and discharge, he undertook, on scholarship, an agriculture degree at Hawkesbury College 1967-70, and then went jackerooing 1970-73. He had delicatessen businesses 1973-78, worked on his Glenorie property 1978-81, and was involved in real estate, home construction, and securities 1981-89. By late 1986 he had a certificate in Building and Construction Management at the University of Western Sydney and he undertook study of further units in that field in 1991. He traded from 1989, through Blueprint Corporation Pty Ltd as a project manager.

He married in 1970, divorced in 1976, and then married his present wife, Rita, and assumed responsibility for her three sons (born 1958, 1960 and 1962), two of whom have health problems. The youngest son lives in Queensland.

Mr & Mrs Waight control several small companies such as Neligh Pty Ltd and Micato Pty Ltd, and the evidence refers also to Lawrence Marks Pty Ltd, which is apparently now Michael Waight Pty Ltd (T1212), as well as Blueprint Corporation.

Mrs Waight, now 63, apparently suffered a nervous breakdown in 1991 and has had chronic fatigue syndrome since then. She no longer works outside the home. Having sold their Glenorie property, the Waights now live at Booker Bay, near Ettalong - apparently in a shed while they build their new home.

Mrs Waight says in her affidavit (par 7) that the defendant had a great appreciation of the environmental attributes of their Glenorie property, when and after they acquired it in 1977, due to their shared love of the bush (MW par 252, RW par 3).

Mrs Waight attributes her 1991 breakdown to "a number of factors, including the strain of living with Michael's post-traumatic stress disorder" (RW par 12), which causes violent mood swings, difficulties sleeping, recurring flashbacks to Vietnam and suicidal impulses (submissions par 573). "Whilst he shows a confident face to the world, I am aware of the extreme anxieties from which he suffers" (RW par 43). The court accepts that she lives in a very stressful relationship.

In his own evidence, Waight acknowledged that he can appear abrupt and abrasive. He shared with the court some of his very troubling experiences in Vietnam (MW par 260). Over the years 1967-1994, he sought help from General Practitioners for "nerves" (T1210-11), but since 1994 he has been under the continuing care of Dr Altman, a psychiatrist in private practice. Since being under Dr Altman's care he "no longer drinks" (T1020 L8, and T1210). With the support of Dr Altman he was accepted in September 1999 (MW par 10) as totally and permanently incapacitated for work, and now does only about 8 hours per week through the office he shares with Green (T1212). He is on regular medication.

The prosecutor did not challenge the sworn testimony of Dr Altman. Due to the sensitive nature of that evidence, I will not repeat it here. Waight was strenuously cross-examined by Mr Buchanan, who conceded, in his submissions, that the defendant had responded robustly (T1282). Mr Buchanan challenged him as "not really incapacitated", and "highly intelligent, if not cunning" (T1204), and Waight responded that he coped only "with the help of a lot of pills" (T1204).

I attach great significance to the evidence of Dr Altman, who has treated Waight since 10 November 1994, before any of his current troubles commenced, and especially to his report of 6 March 1995 to Waight's then local doctor.

Dr Altman acknowledged the court's expert witness practice direction, which commenced 1 September 1999, and opined, as at 30 October 2000 that Waight "suffers from a severe chronic Post-traumatic Stress Disorder with an associated Major Depression", and that "imprisonment would be a most undesirable option for Mr Waight in light of his severe chronic" condition, which would be exacerbated by imprisonment to the extent that "suicide would become a realistic possibility". Waight's condition has been aggravated by the events of 18-19 May 1998 and their aftermath.

I ordered the defendant to report for pre-sentence assessment by the Probation and Parole Service. The report (Exhibit P140) was helpful to the court, and acknowledged consideration of Dr Altman's report, "perusal of court depositions", and a "lengthy interview". It assessed him as "not suitable" for Periodic Detention or Community Service. Were he to be placed on a Good Behaviour Bond, the service submitted that its supervision "does not seem warranted".

Waight appears to have undertaken this dam project somewhat in the role of "owner-builder" (T11650. He argues now that the court's consent orders actually "direct" J&K to be more proactive than they were in supervision of him (T1211 L35-49). Walker, on the other hand, accepted Waight's representations that he knew about the dam building, and was content to be "called in" as required.

Waight says (affidavit par 9) "I do not consider myself to be an expert in relation to the construction and enlargement of dams", but he had worked on relevant projects in his army days and since, and in the class 4 proceedings, on 5 July 1996, he swore to having "both worked on and supervised numerous construction projects … including (a) dams of varying sizes …" (Zadeian affidavit 24 February 1999 p36 par 5). He certainly had landfill experience (e.g. T1029-30), but in his cross-examination he played down his qualifications as a "project manager" (T1109 L24-27), and said he had "over-relied" on his experience with Hawkins, of J&K, on a dam project (as part of a subdivision in flatter terrain - T1110 L15-18), and on his discussions with local dam builders Christie and Nicholson (T1074 and 1165). He acknowledged he needed expert help (T1111 L1-2).

In his affidavit (pars 122, 123) he acknowledges, with hindsight, that, as at 30 September 1997, "the rockfill toe clearly intruded upon what I now know to be an unnamed tributary of Little Cattai Creek", but "I did not appreciate that" at the time. He goes on (at par 151) to complain that J&K never advised him about the hydrological conditions in the watercourse or its relevance to the stability of the J&K design. From a man of his bush and work experience, I find that evidence hard to accept - he had lived on this land for 20 years, is a keen bushwalker, and he told me there was not "any part of the place and well beyond that I have not been" (T1210 L11-28). He simply must have known the topography of the slight depression in the valley below the dam, and that it would carry water from time to time.

Much is made, in the prosecution case, of Waight's dealings with two particular individuals, Vaughan and Walker.

Waight entered a barter-like commercial arrangement with Vaughan, late 1996/early 1997 and they have both sworn to different versions of how it evolved, worked and ended.

It survived until about 9 April 1998, during which time an enormous amount of fill was received and handled. During the course of the arrangement, Waight signed Vaughan's name on three letters (T1211), and the prosecutor alleges that at least two of these letters played a role in Waight's alleged deceit of Ku-ring-gai Council.

The Waight/Vaughan joint venture concluded an arrangement with Ku-ring-gai Council, but Vaughan did none of the negotiations. The evidence establishes that Waight was truthful in his discussions with Birkinshaw about Waight's ownership of the land, and the on-ground operation of the landfill by Vaughan. Waight's company name (Neligh Pty Ltd) was on all letters and invoices to Birkinshaw. Birkinshaw did not assert that he was deceived, and there is no evidence that he was.

The prosecutor also alleges that Waight urged Vaughan to destroy evidence and not cooperate with the EPA investigation, but the evidence does not support those allegations beyond reasonable doubt.

Waight had worked with J&K's Brett Hawkins for about twelve months on a job at Dural 1993-94, but when he contacted Hawkins to help him with the subject job, he recommended Bruce Walker.

Walker did the basic design work based on Green's early survey work. Walker's first report of 13 November 1995 (Exhibit P34) was based on Green's survey of 13 December 1994 (Exhibit P33), and Walker's Figure 6 was "superimposed" upon Green's survey dated 19 February 1996. RL 43 and RL 52 were alternative locations for the toe of the embankment.

The three J&K reports of 15 April, 28 June and 31 July 1996 became annexures to the court's consent orders on 12 August 1996, but Walker had then no involvement with Waight again until 20 June 1997, when Waight wrote to him. There was then a fair bit of involvement until 30 September 1997 (Exhibit P46 to Exhibit P56).

Walker then dealt with Waight and BHSC, and (unbeknown to Waight) with the EPA, in November 1997, and then there was another "quiet" period until 11 May 1998, when Waight called Walker in for help with Council's 8 May 1998 "list of issues" (Exhibit P69).

When Walker got to the site on 14 May 1998, he became more concerned with what he saw than with the Council list. He struggled with the survey material, and drew a profile of the project as at 16 May 1998 (figure 6A). Then the collapse occurred and Walker became closely involved in the early remediation and redesign works. Strangely, he did not see the 12 August 1996 court orders until 19 August 1998, by which time they left only one year to finish the project.

In his evidence, Walker admitted that on 14 May 1998 it became apparent to him that the creek was located at RL 43 and not RL 42. In adopting and adapting Green's February 1996 survey to draw figures 6 and 11, he had thought RL 43 would put the toe 5m from the creek, and RL 52 30m from it, but the plans were wrong. Figure 6 also adopted Green's direct access track route (T584 L49 to T585 L4) without checking its feasibility.

Walker does not acknowledge the court orders as being directive of him (T735-7). He expected Waight to call him in, as and when required. Certainly not much occurred or went wrong until after Speechley's visit on 30 September 1997, and there was no real reason for alarm, in what he then knew of the project, when the EPA contacted him first in November 1997. He had no knowledge of the vastly increased fill activity on site in that period - activity during which Waight saw no need to call him in.

Walker had several conversations with the EPA without briefing Waight on them, and that eventually brought about the termination of the arrangement between Waight & J&K.

Waight saw that arrangement as requiring closer ongoing "supervision", not just occasional inspections, and says that he wanted such supervision and believed it was required by BHSC and the court - "… the court … in fact instructed him …" (T1113 L9-10). "I did need help and I expressed that view" (T1111 L1-2). Walker saw J&K's role as responsive to Waight, rather than proactive (T1112 L50-3). Pells testified that he, in Walker's position, would have contracted Waight, and visited the site, after the EPA expressed some concerns in November 1997 (T645).

The respective roles of designer, builder and supervisor do not appear ever to have been clearly defined, but the defendant has been very critical of Walker's role in the project. It is also noteworthy, however, that Walker asked Waight in July 1997 for an up-to-date survey from Green and none was supplied before May1998 - hardly the response of a client wanting closer supervision (c.f. MW par 256), albeit that Walker did not follow-up either.

(a) Plea of Guilty 345. Under s 22 of the Crimes (Sentencing Procedure) Act 1999, and the principles in the "guideline" judgment in R v Thomson (2000) 49 NSWLR 383, the defendant is entitled to a discount of 10% to 25% in response to the "utilitarian benefit" of his pleas of guilty.

346. The prosecutor argued that a last minute plea, coupled with a major contest on every element of the prosecution case on sentence, meant there was no "utilitarian benefit", but, in the light of the fact that the determination of guilt or innocence was expected to take 30 days, I cannot accept that argument.

347. The guilty plea was very late, and the sentencing hearing went over at least some ground that would have been covered in a primary trial, but I am prepared to allow a discount of 15% for it. (b) Remorse and contrition
348. The prosecutor argued that there was absolutely no evidence of any remorse or contrition on the defendant's part, and that such an argument was strengthened by the lateness of the plea. However, the fact that the defendant chose to contest the matter until the "last moment" does not mean that remorse and repentance cannot be present. R v Gray [1977] VR 225 (at 231).

349. It is clear, from his evidence, that Waight for a long time did not believe that he had done anything for which he should incur the wrath of the criminal law. With the benefit of proper legal advice he came to realise that he did, or failed to do, some things which a reasonable person in the circumstances would have avoided, or done, as the case may be, and he then entered his plea.

350. The objective evidence of contrition is hardly overwhelming, but it is present in the material before me (see also T1198-9 and T1350-2), and some allowance should be made for it. His reaction to the collapse was swift, even if not environmentally sophisticated, and credit should be given for his evident love of "the bush", for such good intentions about remediation, and for the expenditure so far incurred in that regard, namely $162,500 of a capital nature (MW par 248), and approximately $150,000 for consultants (MW par 246).

351. I do note, however, that he does not appear to have complied completely with various post-collapse notices. (c) Character matters
352. It is conceded that he has no prior convictions and that there is no evidence, other than that relied on to establish motive in this case, that he is a man of other than good character.

353. I have no concern that he is likely to re-offend. I have no reason whatsoever to detect a "continuing attitude of disobedience of the law" on his part. Veen v The Queen (No.2) 164 CLR 465. (d) Co-operation with the authorities
354. Prior to the collapse of the embankment, Waight's primary dealings with public authorities were with BHSC. Those dealings were over a period of some years and the evidence suggests that he was certainly always responsive, even if not proactive. He appears to have obeyed all Council's instructions, except one he claims to have misunderstood, and to have provided all information requisitioned, and he has negotiated his way through all Council's concerns since his initial response to its requirement of a DA in late 1994.

355. Prior to 18 May 1998, his main dealings with the EPA appear to have concerned his possible need for a Waste Act licence, and possible exposure to liability for the payment of waste levies. I accept the evidence that he sought, and accepted, professional advice on those issues, and hence continued to operate on the basis that he was primarily accountable to BHSC for what happened on his land, the Council being the relevant consent authority (T1198 and T1350 L44), and the other party to the court's consent orders which redefined his project.

356. In those circumstances, I am not troubled by the evidence that he chose not to report the collapse to the EPA when he reported it to BHSC, and to the designated supervisor (J&K).

357. When the EPA came to see him on 22 May 1998, he offered paperwork (Taylor par 30), and the next he heard from the EPA was the dramatic scenario surrounding the execution of the search warrant on 29 May, after which he was certainly less co-operative with that agency. The relationship could hardly be expected to improve after such an event, no matter how justified the warrant was, and the commencement of these proceedings was certainly not likely to improve it.

358. While he has not been co-operative with the prosecutor since 29 May 1998, there appears to have been absolutely no effort on his part to keep his activities secret in any way.

359. I make no criticism of the conduct of the EPA, during the search on 29 May 1998, as it appears from the evidence adduced and tested at the hearing, but I accept the evidence as to its impact on Mrs Waight, and the "knock-on" effect of that reaction on Mr Waight. (e) Reliance on Experts
360. The plea of guilty is appropriate because the evidence established that Waight should have done more to protect the environment from harm.

361. One culpable aspect of Waight's conduct was his unjustified self-assurance that the project was within his own capacity, a self-assurance which resulted in his not seeking sufficient advice or supervision from experts. Nonetheless, he did rely on experts to the extent that he sought their advice, and a mistake by the surveyor Green played a role in the eventual collapse of the embankment. The storm hit the embankment while Waight was addressing the mistake.

362. It is a mitigating circumstance that Waight accepted and relied upon expert advice, the competence of which, prior to the events of 11 to 18 May 1998, he had no reason to doubt. EPA v Baiada Poultry Pty Ltd [2000] NSWLEC 249.

363. I have taken into account the defendant's preparedness to at least contribute to the prosecutor's costs, subject to his capacity to fund payment of any fine and the fulfilment of any s 14 remediation orders.

364. I have taken into account the defendant's attempts to remedy the environmentally harmful consequences of his negligence and the offer he made in respect of submitting to certain s 14 orders.

365. I have also taken into account that Waight has been on conditional bail from 20 May 1999 until today.

366. The prosecutor submitted that a term of imprisonment is the only appropriate penalty to impose in this case. The objective features were serious - the defendant was guilty of "thumbing his nose at the law, dramatically harming the environment" (T1280 L48-9), and sought to blame everyone else for the result. There are no grounds for leniency, and a heavy sentence in this case is needed to deter the defendant and others.

367. The defence says that Waight had an honourable purpose, obtained consent to build his dam, and "bit off more than he could chew" (T1360 L23-4). In the result he has been ruined financially and emotionally, imprisonment is "disproportionate" to the objective seriousness of the offences, and "deterrence must give way to proportion" (T1359 L28-29). A substantial fine would be appropriate, and cannot be regarded as "a weak option" (T1357 L32-5).

368. Under s 8 of the EOPA each of the offences with which Waight has been charged attracts a fine of up to $250,000, and/or two years imprisonment.

369. Section 5(1) of the Crimes (Sentencing Procedure) Act 1999 provides: A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.
370. This court has sentenced only one environmental offender to a term of imprisonment, and also imposed the maximum fine. In EPA v Gardner (50072 and 50074 of 1996) - see Lloyd J's sentencing judgment 7 November 1997 - the defendant had pleaded not guilty to a charge under s 5(1) of the EOPA, but his was a very different situation indeed from Waight's. His conduct was wilful, deliberate, deceitful, sustained over 128 weeks, and posed a major threat to public health. Financial motivation was proven beyond reasonable doubt.

371. Given Waight's state of health and personal circumstances, it would be inhumane and unwise for me to send him to prison, but, although the harm resulting from his offences is serious, it does not justify such a penalty in any event.

372. The combined environmental consequences of these offences are far more serious than the overlapping acts of negligence that comprise them. Several mitigating circumstances have been made out; the area of environmental impact was, fortunately, contained by the intervention of nature; and none of the aggravating circumstances advanced by the prosecutor have been made out.

373. The court expects him to take full personal responsibility for the comprehensive remediation programme I am ordering today - see par 252 and Annexure 'B'.

374. A substantial fine is the appropriate penalty.

375. Capacity to pay a fine is a relevant consideration. Fines Act 1996 s 6, and Smith v The Queen (1991) 25 NSWLR 1.

376. The total amount to be found by the offender, including costs, is also to be taken into account. Zanol v Newtown (1974) 10 SASR 199. The Fines Act regulates how and when fines are paid.

377. The evidence of the defendant's means is not conclusive, but he claims an excess of liabilities over assets of $28,459, after all his estimated remaining legal expenses are paid. It is clear that he has already been put to substantial expense as a result of these events - he testified to expenditure of more than $300,000 on consultants and capital works to rectify the damage, leaving aside his legal expenses thus far, which have been substantial (at least $487,000).

378. I have already determined that he must bear a very onerous responsibility for remediation works, including substantial upfront and on-going expenditure over a period of up to 20 years - see Buckney's estimate of $35,000 plus perhaps $10,000 pa in par 240. It is also appropriate that he be ordered to pay at least a proportion of the prosecutor's costs which, the court was told, may amount to $350,000 (T1363 L25-6).

379. He has been accepted as totally and permanently incapacitated for work, but tries to work for about 8 hours per week. He has a sick wife and two sons in need of at least some care and support. His own psychiatric conditions are said to have worsened, and his family relationships have been seriously strained, by the subject matter of these proceedings.

380. Mrs Waight said in her affidavit (RW par 42): We have been destroyed financially as a result of part of the dam being washed away into the creek. I never thought our late years would end with us in such a precarious situation. I put all my inheritance from my father and my savings into our property at Glenorie. We are currently living in a shed on a block of land at Booker Bay, while we build another home. We have lost all hope for a comfortable retirement.

381. Having regard to all these matters, to the other mitigating features referred to in this judgment, and to the principles of "proportionality" and "totality" discussed above, I have decided that this is a case in which justice must be tempered with mercy, Cobic v Liddey (1969) 119 CLR 257 (at 269), and I intend to impose fines of $30,000 and $120,000, for the section 5(1) and 6(1) offences respectively.

382. Mr Preston's submission on the question of the prosecutor's costs was simply that Mr Waight would not have the means to pay the full $350,000 suggested, as well as a large fine, and the further remediation expenses.

383. The defendant must at least contribute to the prosecutor's costs (see offer in Exhibit W21), but those costs must be "just and reasonable". Now that the questions of penalty and remediation have been determined, perhaps the parties can reach some agreement on the amount of costs and how and when they should be paid. If they are not agreed, the defendant has a right to seek their assessment. To facilitate negotiations I will not nominate a payment time in respect of the prosecutor's costs.

385. In Matter 50019 of 1999 1. The defendant is convicted of the offence charged in the summons. 2. The defendant is ordered to pay a fine of $30,000. 3. The defendant is ordered to pay the just and reasonable costs of the prosecutor, as agreed, or assessed according to law.

386. In Matter 50020 of 1999 4. The defendant is convicted of the offence charged in the summons. 5. The defendant is ordered to pay a fine of $120,000. 6. The defendant is ordered to pay the just and reasonable costs of the prosecutor, as agreed, or assessed according to law. Generally 7. Pursuant to s 14 of the EOPA I make the orders sought in the Prosecutor's Amended Notice of Motion, filed in court in both matters on 29 January 2001, a copy of which is annexed to this judgment. 8. By consent, the charges in matters 50021 and 50022 of 1999 are dismissed, with no order as to costs. 9. Exhibit P11 is to be returned to the court file in matter 40176 of 1995. Exhibits P140, P141, W8, W9, W21 and W22 are to remain with the court files in these class 5 matters, but all other exhibits may be returned. I HEREBY CERTIFY THAT THE PRECEDING 386 PARAGRAPHS ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT OF THE HONOURABLE JUSTICE T.W. SHEAHAN. Associate: Dated: 22 June 2001

IN THE LAND AND ENVIRONMENT COURT ANNEXURE 'B' OF NEW SOUTH WALES TAKE NOTICE that the Prosecutor Nos. 50019 - 50020 of 1999 will, at 2pm on, 29 January 2001 move the Court for orders as follows:

ENVIRONMENT PROTECTION 1. Within 3 months of the date of AUTHORITY Applicant these orders, cause to be constructed and/or installed on MICHAEL JEFFREY WAIGHT the embankment, support Respondent structures for the overstep cut faces of the zig-zag track as follows: (a) for all existing cut faces less than or equal to 0.5 metres in height, cause the AMENDED cut face to be trimmed to a NOTICE OF slope of 1.5 H: 1 V (1.5 MOTION Horizontal: 1 Vertical); and (b) for all existing cut faces FILED FOR THE PROSECUTOR greater than 0.5 metres in

Stephen Garrett height, but less than or Solicitor Environment Protection Authority equal to 1.5 metres in 59-61 Goulburn Street SYDNEY NSW 2057 height: DX 11587 Sydney Downtown

Ref: Stuart Simington Tel: (02) 9995 6090 Fax: (02) 9995 5951.

(i) cause to be constructed a dry stacked rock toe wall with a suitable base dimension as determined by a suitably qualified geotechnical engineer.

(ii) following installation of the structure required by (i), cause the remainder of the cut face above the top of the dry stacked rock toe wall to be trimmed to a slope no steeper than 1.5 H: 1 V such that the slope of the embankment as trimmed meets the top of the dry stacked rock toe wall.

(c) for all existing cut faces greater than 1.5 metres in height: (i) where in the opinion of a suitably qualified geotechnical engineer the width of the zig-zag track permits such support structures, cause to be installed structures of the type required by order (b)(i) above. The dimensions of the dry rock toe wall, and any trimming of the slope above the top of the dry rock toe wall are to be as determined by a suitably qualified geotechnical engineer for each location where the existing cut face is greater than 1.5 metres in height; or (ii) where in the opinion of a suitably qualified geotechnical engineer the width of the zig-zag track does not permit installation of support structures of the type required by order (b)(i) above, cause to be installed a timber post wall or equivalent retaining wall. The dimensions of the wall, and any trimming of the slope above the top of the wall are to be as determined by a suitably qualified geotechnical engineer for each location where the existing cut face is greater than 1.5 metres in height; and

(d) cause a registered bush regenerator to plant suitable indigenous plant species on any areas of the embankment disturbed by works required by orders (a), (b) and (c). 2. By not later than one month following the completion of the support structures required by order 1, cause a suitably qualified geotechnical engineer to provide a certification in writing to the Manager, Sydney Waste, Environment Protection Authority as to whether or not the support structures have been constructed in accordance with the design specifications.

3. Within 3 months of the date of these orders, cause to be installed, scour protection works downstream of the stilling basin.

4. Within 3 months of the date of these orders: (a) cause to be installed at the toe of the embankment, a sediment and nutrient catch basin by a person experienced in the installation of such structures; and

(b) cause to be planted around the edges of the catch basin so installed, indigenous macrophytic plants such as Ghania sieberiana (saws edge) and juncus usitatus (common rush).

5. Following installation of the structures and works as required by orders 1, 3, and 4: (a) cause the structures and works required to be installed by orders 1 and 3 to be inspected by a suitably qualified geotechnical engineer: (i) at least once each year for the period of 5 years following the date of these orders; and (ii) at least once every five years during the period commencing 5 years from the date of these orders and ending 20 years from the date of these orders, (b) cause the structures and works required to be installed by order 4 to be inspected by a person experienced in the maintenance of such structures at least once each year for a period of 20 years following the date of these orders; (c) by not later than the end of each year during which an inspection is required by (a) or (b) to be carried out by a geotechnical engineer, registered bush regenerator or other experienced person as relevant, cause the person so engaged to prepare a report regarding the inspection of those structure/s and works, such report to specify any measures necessary to be implemented to maintain the structure/s and works in a proper and efficient condition; and (d) within 14 days of the end of each year in which a report is required to be prepared by a registered bush regenerator, geotechnical engineer or other experienced person as relevant, submit to the Manager, Sydney Waste, Environment Protection Authority a copy of the Report.

6. Following installation of the structures and works required to be installed by orders 1 and 3 until the date 20 years from the date of these orders, maintain those structures and works in a proper and efficient condition.

7. Following installation of the structures and works required to be installed by order 4 until the date 20 years from the date of these orders, maintain those structures and works in a proper and efficient condition.

8. Within 6 months of the date of these orders: (a) cause the artificial embankment to be removed; and (b) following removal of the artificial embankment, cause to be planted in the area from which the artificial embankment has been so removed, suitable indigenous species such as Calicoma seratifolia and Syncarpia glomulifera.

9. Within 6 months of the date of these orders: (a) to the extent reasonably practicable having regard to the need for the protection of the regrowth of indigenous species, cause all weeds present in and about the affected creek (including in the riparian zone and on its banks) to be removed by a registered bush regenerator; and (b) to the extent reasonably practicable having regard to the need for the protection of the regrowth of indigenous species, cause to be removed by a registered bush regenerator, all non-indigenous material (including any non-indigenous soils and sediments) deposited in and about the affected creek (including in the riparian zone and on its banks).

10. Following the expiry of the period of 6 months after the date of these orders,

And once every three months thereafter, ending 30 months after the date of these orders, cause: (a) a survey to be conducted by a registered bush regenerator of the affected creek to identify any new weeds in and about the affected creek (including in the riparian zone and on its banks); and (b) to the extent that it is reasonably practicable, cause a registered bush regenerator to remove any newly existing weeds in and about the affected creek (including in the riparian zone and on its banks).

11. Following the expiry of the period of 6 months after the date of these orders, once each year ending on the date 5 years and 6 months after the date of these orders, cause a registered bush regenerator to inspect the affected creek and prepare a report specifying: (a) the incidence (or otherwise) of weeds in and about the affected creek (including in the riparian zone and on its banks); and (b) such reasonably practicable measures (if any) as are, in the opinion of the bush regenerator, necessary so as to prevent the recolonisation of new weeds in and about the affected creek (including in the riparian zone and on its banks); and (c) the manner in which those measures (if any) should be carried out.

12. Cause a copy of each report prepared in accordance with order 10 to be submitted to the Manager, Sydney Waste, Environment Protection Authority, within 14 days following preparation of the Report.

13. During the period commencing 6 months from the date of these orders and expiring 5 years and 6 months from the date of these orders, so far as is reasonably practicable, cause the affected creek to be maintained in a weed free condition.

14. There be liberty to the parties to apply in relation to these orders on 14 days written notice.

"affected creek" means the section of the creek, being the creek which runs in a generally east/west direction from the toe of the embankment to the confluence of that creek with the creek marked SS, being the creek so referred to on page 166 to the affidavit of Paul John Anink sworn 28 October 2000 and filed in these proceedings.

"artificial embankment" means so much of embankment located adjacent to the affected creek on its southern bank, approximately 50 metres downstream of the existing retaining wall as shown on the Barrie Green survey dated 28 February 2000 as comprises non-indigenous materials.

"embankment" means the landfill embankment at the premises;

"Manager Sydney Waste, Environment Protection Authority" means, the person occupying that position from time to time, or if no such position exists, the person occupying the position of Director-General, Environment Protection Authority.

"premises" means lot 204, Old Northern Road, Glenorie

"registered bush regenerator" means a bush regenerator registered as such with the Australian Association of Bush Regenerators.

"retaining wall" means the existing retaining wall for the embankment.

"scour protection works" means works determined as necessary by a suitably qualified geotechnical engineer to ensure water cascades from the stilling basin in such a way as not to cause significant erosion of the natural hillside.

"sediment and nutrient catch basin" means a catch basin, the design of which has been determined by a person experienced in the design of such structures, that is suitable to collect:

(a) the leachate emanating from the embankment; and (b) the liquid exiting from the pipe that passes through the toe of the embankment into the affected creek.

"spillway" means the existing spillway for the embankment.

"stilling basin" means the energy dissipating basin located in the position marked on the survey of Barrie Green dated 28 February 2000.

"suitably qualified geotechnical engineer" means a specialist geotechnical engineer experienced in dams engineering.

"support structure/s" mean structure/s, the design of which has been determined by a suitably qualified geotechnical engineer to: (a) be suitable to prevent the collapse of the overstep cut faces of the zig zag track; and (b) not be such as will prevent or inhibit free vehicular access to the embankment toe by encroachment of the structures onto the zigzag track. "weeds" means plant species that are not indigenous to the environment of the affected creek.

"zig-zag track" means the existing zig-zag track leading from the crest of the embankment to the toe of the embankment.

…………………………… Solicitor for the Prosecutor by Stuart Simington (employed solicitor)

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.