7 Contrary to the Prosecutor's submissions, the Defendant submitted that the likelihood of harm to the environment was minimal or non-existent. The evidence of Dr Staniland, a civil engineer and consultant, was that if the pollutant had escaped from the site, the likelihood of it reaching Warabrook Lagoon was low. It was unlikely that any more than a small amount of egg waste would have reached Warabrook Lagoon given the length of time required and the volume of egg waste needed for it to reach Warabrook Lagoon in sufficient quantities to cause harm. The Defendant also submitted that it was unlikely that the egg waste would make its way to Warabrook Lagoon without being noticed, given its distinctive odour. Further the Defendant argued that any harm to the environment would be short term as the quantity of the pollutant was small.
Finding
8 Mr Anink's evidence demonstrated that if liquid egg waste did enter Warabrook Lagoon it would have short and long term impacts, the severity of which would depend on the amount of pollution. In my earlier judgment I was not able to conclusively decide on the expert evidence how much egg waste escaped from the black tank, flowed over a concrete drive and reached the Defendant's stormwater system. It was not necessary that I did so in terms of the findings I had to make. I did conclude that the spill was likely to be small, a minimum of about 300 litres, rather than large. I rejected the evidence of Dr Joliffe suggesting the quantity was in the range of 1,000 to 4,000 litres. Assuming the quantity of egg waste spilled was between 300 and 1,000 litres, approximately 300 litres would have flowed into a void under the concrete between the black tank and SW1, the closest entry to the stormwater system. Dr Staniland's evidence was that the viscosity of the mixture when added to water would result in the slower progress of the egg waste through the stormwater drainage system. In my earlier judgment I did not reach any conclusion on how quickly the liquid would flow. The evidence of the two experts is conflicting in that while Dr Joliffe agreed that the viscosity of the water/egg waste mix would slow the progress of the liquid he also considered the wetting of the pipes by rainwater would cause any liquid to flow faster.
9 I do not accept the submission that no egg waste escaped from the site, hence my finding at [92] of Pace No 2. I accept that Dr Staniland's evidence does suggest on the balance of probabilities less rather than more egg waste was likely to escape. It is likely that only a small amount of egg waste would have reached Warabrook Lagoon suggesting the harm likely to be caused was minimal.
Section 241(b) - the practical measures that may be taken to prevent, control, abate or mitigate that harm
10 The Prosecution argued that there were clearly practical measures which could be taken to prevent egg waste being placed in a position where it was likely to fall, descend, or be washed into Warabrook Lagoon. The evidence is that there was no bund around the black tank to control any spill that might occur, there were no emergency procedures in place to deal with a spill of this nature, there was no maintenance of the black tank by the Defendant and no measures were taken to clean up the egg waste until several hours after it was discovered.