Warringah Council v Koch and Severino

DEFENDANT: Santo Angelo Severino

KEY ISSUES: Environmental Offences :- Prosecution for polluting waters - proof of pollution - circumstantial evidence

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 96(2) Protection of the Environment Operations Act 1997 120(1)

Cliftleigh Haulage Pty Ltd v Byron Shire Council [2005] NSWLEC 692; Doney v The Queen (1990) 171 CLR 207; Environment Protection Authority v All Chrome Shop Pty Ltd (1996) 89 A Crim R 474; CASES CITED: Environment Protection Authority v Munters Pty Ltd (1998) 98 LGERA 279; Eslarn Holdings Pty Ltd v Tumut Council (Lloyd J, NSWLEC, 20 October 1998, unreported); Imnetu v R [2006] NSWCCA 203; Shepherd v R (1990) 170 CLR 573; Stevens v R (2005) 222 ALR 40

DATES OF HEARING: 26-28/04/2006, 01-02/05/2006, 09/05/2006, 30/05/2006

PROSECUTOR: Mr A Galasso, barrister SOLICITORS Mathews Folbigg

DEFENDANT LEGAL REPRESENTATIVES: Mr M Baird, barrister SOLICITORS Wood Marshall Williams

DEFENDANT Mr T Howard, barrister SOLICITORS Cara Marasco & Co

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT HIS HONOUR: INTRODUCTION 1 These two water pollution cases have been heard together. The charge against each defendant is that on or about 21 February 2005 he committed an offence against section 120(1) of the Protection of the Environment Operations Act 1997 ("the Act") by causing waters to be polluted from land at 48 Myoora Road, Terry Hills.

2 It is alleged that sediment-laden water and suspended solids were pumped from 48 Myoora Road into the waters on the western fork of a watercourse running through the adjoining property to the south, 46 Myoora Road. The point of discharge was a small pond on that western fork referred to in the evidence as "the commencement point". The watercourse connects to Kieran's Creek which joins Cowan's Creek. The "waters" for the purposes of s 120(1) constitute the watercourse and Kieran's Creek.

3 The contravention is alleged to have occurred during the course of construction of a function and reception centre at 48 Myoora Road. These works were authorised under a conditional development consent granted by the prosecutor council on 1 March 2004, which was modified pursuant to Environmental Planning and Assessment Act 1979 s 96(2), and under a construction certificate issued by Insight Development Consultants Pty Limited on 7 February 2005.

4 The defendant in the first proceedings, Mr Horst Koch, was at all material times the holder of a builder's licence and the person nominated as the builder on the construction certificate. It is alleged that he was the person implementing the development consent and the construction certificate. The defendant in the second proceedings, Mr Santo Severino, was an owner of 48 Myoora Road. It is alleged that he was a person entitled to act on the development consent and the construction certificate.

5 Section 120 provides as follows: (1) A person who pollutes any waters is guilty of an offence. (2) In this section: pollute waters includes cause or permit any waters to be polluted.

6 The dictionary to the Act contains expansive definitions of the terms "waters", "pollution" and "water pollution": waters means the whole or any part of:

(a) any river, stream, lake, lagoon, swamp, wetlands, unconfined surface water, natural or artificial watercourse, dam or tidal waters (including the sea), or

(b) any water stored in artificial works, any water in water mains, water pipes or water channels, or any underground or artesian water.

(a) water pollution, or (b) air pollution, or (c) noise pollution, or (d) land pollution.

water pollution or pollution of waters means, relevantly:

(a) placing in or on, or otherwise introducing into or onto, waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, so that the physical, chemical or biological condition of the waters is changed… …and, without affecting the generality of the foregoing, includes:

(d) placing any matter (whether solid, liquid or gaseous) in a position where: (i) it falls, descends, is washed, is blown or percolates, or (ii) it is likely to fall, descend, be washed, be blown or percolate, into any waters, onto the dry bed of any waters, or into any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted,

… if the matter would, had it been placed in any waters, have polluted or have been likely to pollute those waters.

7 As against Mr Severino, the prosecutor relies on general law principles of causation or, alternatively, the deeming causation provisions of ss 257 and 258 of the Act relating to an occupier of premises. As against Mr Koch, the prosecutor relies on general law principles of causation.

THE PROSECUTOR'S EVIDENCE 8 The only witness for the prosecution was Mr Trevor Wintle, a Catchment Liaison Officer at Warringah Council, whose responsibilities involve the investigation of pollution matters. His evidence included the following.

9 At about 4 pm on 21 February 2005, Mr Wintle received a telephone call reporting a possible pollution problem with Kieran's Creek. A natural watercourse meets Kierans Creek. The watercourse commences close to the boundary of 48 and 46 Myoora Road and travels in a westerly direction, traversing the immediate adjoining downstream properties Nos. 46, 44, 42 and 40 Myoora Road, before passing underneath Myoora Road and joining Kieran's Creek.

10 At about 4:46 pm, Mr Wintle carried out an inspection of the gross pollutant trap located at the point of intersection of Aumuna Road and Kieran's Creek. He saw discoloured water discharging from one of the pipes of the culvert, which is located beneath Aumuna Road, a short distance from 48 Myoora Road.

11 At the time of this inspection, he was aware that building works were being undertaken at 48 Myoora Road. He therefore proceeded to 48 Myoora Road, where a substantial amount of building works was being carried on. Because of his familiarity with the area and knowledge of similar discolouration of Kieran's Creek caused by similar pollution incidents in the past, Mr Wintle was aware that a natural watercourse ran adjacent to the land.

12 At about 4:50 pm, Mr Wintle carried out an inspection of the immediate adjoining land to the south, 46 Myoora Road. He proceeded to the commencement point. At this location, he saw discoloured water consistent with the colour of the water he had seen within the Aumuna Road gross pollutant trap. He also saw a PVC pipe at the commencement point which was discharging discoloured water (the first PVC pipe). He noted that a blue coloured flexible hose had been inserted into the first PVC pipe. He followed the hose back to where it crossed the common boundary of 48 Myoora Road and the adjoining land and saw that it travelled across, and appeared to originate from, No 48. He took photographs. Mr Wintle's Samples 13 While at the commencement point, Mr Wintle took two samples of water at the commencement point pond. The first sample, he said, was taken from just adjacent to or directly under the point of discharge of the first PVC pipe, after the water from that pipe had mixed with the water in the pond. The second sample consisted mainly of water from a pool on the right hand side of a concrete pipe in the commencement point pond and was topped up with clear water discharging from another PVC pipe in that location (the second PVC pipe).

14 After collecting these samples, he sealed the screw lids of the containers with tape. He then placed the samples in an 'esky', which he placed in his car. The samples were numbered 1 and 2 respectively and marked with the date 21 February 2005.

15 On 22 February 2005, the two water samples were taken by Mr Wintle to the Australian Government National Measurement Institute ("NMI") at Pymble for analysis. A "Report of Analysis" of the NMI dated 1 March 2005 showed a concentration of 350mg/L of suspended solids in Sample 1 ("site pumpout") and 24mg/L of suspended solids in Sample 2 ("storm water"). The defendants do not challenge the accuracy of these measurements. They do, however, mount challenges to the accuracy and reliability of Mr Wintle's sampling methodology and, accordingly, to the probative value of the two samples. Mr Wintle's Conversation with Mr Severino 16 At the time of his investigations on 21 February, Mr Wintle could not locate the required signage which would identify the Principal Certifying Authority and include outside business hours contact details. He called the telephone number displayed on a billboard advertisement advertising the construction of a 'convention centre'. His call was answered by a male person who identified himself as Santo Severino. Mr Wintle recounted his conversation with that person in his affidavit of 12 December 2005.

17 In preparing his affidavit, Mr Wintle had access to the notes in his "contemporaneous notebook", which were a record of his inspection of 48 Myoora Road. The existence of this notebook was not disclosed to the defendants until Mr Wintle's cross-examination. These notes were entered into that notebook on 22 February 2005, with the assistance of brief notes which had been jotted down in another notepad on the day of inspection. This notepad could not be located by Mr Wintle. Mr Wintle agreed in cross-examination that the words which I have underlined below in his affidavit evidence of that conversation with Mr Severino did not appear in the contemporaneous notebook; and that the words which I have put in square brackets below appeared in the contemporaneous notebook, but were omitted from the record of conversation by Mr Wintle when preparing his affidavit: Mr Wintle: " Hello my name is Trevor Wintle and I'm from Warringah Council ".

Mr Severino: " It's Santo here, what's the problem "

Mr Wintle: " I'm currently down at 48 Myoora Road where sediment laden water is being pumped from the site into the creek. What can you tell me about that" .

Mr Severino: " That stuff is coming from next door and I'm just getting rid of it " .

Mr Wintle: " I must caution you that you do not have to say anything more but anything you say from this point on may be recorded and used in evidence against you. Do you understand. "

Mr Wintle: " The pump out of water from your site into the creek is a breach of the Protection of the Environment Operations Act. "

Mr Severino: " As I said the water comes from next door and I have to get rid of it " .

Mr Severino: " I'm at Collaroy now and I can't get there for half an hour. You can't enter my property ".

Mr Wintle: " Mr Severino I am an authorised council officer under the Protection of the Environment Operations Act which gives me authority to walk onto your site in situations where a pollution incident is occurring" .

18 At about 6:30 pm, the second defendant arrived at the subject land. Mr Wintle recounted the following conversation in his affidavit: Mr Wintle: " Mr Severino, I am Trevor Wintle from the Council. We've met before" .

Mr Severino: " I'm Santo and this is my wife. I want to show where the water is coming from" .

19 Mr Wintle recounts in his affidavit the following conversation occurring as they walked along the north eastern boundary of 48 Myoora Rd, whence Mr Severino claimed that the water on that land came. Mr Severino: [" All this water flows onto my property. Council won't do anything to help ."]

Mr Wintle: " Mr Severino, I really don't want to discuss issues concerning the overland flow path of surface water. I'm here to discuss the problem with the construction works and the problem that you currently have with the pump out of polluted water from the excavated pit into the creek. You really need to turn off the pump now" . " [This drainage issue is a private matter. Council's issue is with the pump out of sediment laden water from your property. We need to stop the pump now.] "

Mr Severino: " Let me put my boots on and I'll go and turn off the pump " . [" I will get my boots and we can do it." ]

Mr Wintle: " Thank you Mr Severino that would be helpful ."

20 According to Mr Wintle, he and Mr Severino then proceeded to a deep excavated rectangular pit measuring 7m x 3m x 2m, which contained discoloured water of the same colour as that observed earlier at the commencement point. This was referred to in the proceedings as Sediment Pit 1. Inside the pit was an electric submersible pump connected to a blue pumpout hose. The hose led to the south western property boundary. The pump was operating at the time and was drawing discoloured water from the pit into the blue hose. Mr Severino disconnected the power to the pump inside the pit.

21 According to Mr Wintle's affidavit, the conversation between himself and Mr Severino then continued as follows: Mr Wintle: " Thank you Mr Severino. You must explore options for flocculation of the site before you pump it out. You can't simply put into the creek " .

Mr Severino: " I would need twenty containers to treat this much water. It was up to here" . (he gestured at his chest to indicate the previous water level)

Mr Wintle: " Well you may need to flocculate in-situ" .

Mr Severino: " I can't do that if it keeps raining. Anyway I've got a filter dam on-site. [It works well]" .

Mr Wintle: " How come you didn't use it this time" .

Mr Severino: " The guys didn't want to use it. They should have. I've turned the pump off. What more do you want me to do? I've co-operated with you. What happens now? "

Mr Wintle: " I will gather all my evidence and then discuss a course of action with my colleagues "

Mr Severino: " If you are going to fine me then I'll go back and turn the pump back on" .

Mr Severino: " What are you going to do now, give me a seven hundred dollar fine. That's nothing to me" .

Mr Wintle: " Mr Severino based on the evidence which I have already, there is probably enough to prosecute you. That will be a matter for the Council to consider" .

Mr Severino: " A ten thousand dollar or twenty thousand dollar fine is nothing. If the Council wants to take me to court they can" .

Mr Wintle: " We'll see where we stand after considering the evidence" .

22 It was put to Mr Wintle in cross-examination that these additions and omissions were "self-serving", and he agreed that they could be seen that way. Mr Wintle's opinion 23 Based on his knowledge of the Myoora Road locality and the Kieran's Creek catchment area, Mr Wintle was of the opinion that the discoloured water which he saw at the commencement point, and which flowed downstream to the gross pollutant trap, emanated from the subject land. To confirm this opinion, he carried out a non-toxic dye test on the watercourse on 29 November 2005, which established that water from the commencement point flows downstream to Kieran's Creek. As a consequence of his observations and his experience as a Catchment Liaison Officer, Mr Wintle was of the opinion that at the time of his inspection of 48 Myoora Road on 21 February 2005, the sediment laden water being pumped out of the excavated pit thereon contained suspended solids which caused the waters within Kieran's Creek to be physically, chemically and biologically changed. Mr Wintle's Credit 24 It was submitted on behalf of Mr Severino that Mr Wintle deliberately changed the version of his conversation in his affidavit from that in his contemporaneous notebook, in order to "stitch up" Mr Severino and to assist the prosecution, and that he lied when he denied this proposition when it was put to him in cross-examination. It was also submitted by both defendants that Mr Wintle was biased and that his evidence was unreliable. I reject the submissions of dishonesty and bias. The fact that he assumed, when taking the samples, that the water from which he took Sample 1 was solely water from 48 Myoora Road does not exhibit bias in the sense of partiality. The assumption may have been erroneous, but that is because of the evidence (considered below) which the defendants adduced at trial of possible alternative sources of water in Sample 1 as a result of the storm events which had occurred over the preceding two days. Some of the discrepancies between Mr Wintle's affidavit evidence of his conversation with Mr Severino and his contemporaneous notebook are of no real significance, others are of varying degrees of significance. Taking into account my impression of Mr Wintle when he was taxed with these matters in cross-examination, I am not satisfied that the discrepancies were deliberate. They were, however, careless and adversely affect the reliability of his evidence of the conversation with Mr Severino such that I would treat this evidence cautiously, in the absence of corroboration, when deciding whether to accept any alleged admissions by Mr Severino therein beyond reasonable doubt.

PROOF OF THE CHARGES 25 I accept the submission on behalf of Mr Severino, which was not disputed by the prosecution, that in order to prove the charges the prosecution must prove three propositions beyond reasonable doubt: (a) on 21 February 2005, waters from the construction site on 48 Myoora Road, were discharged via a blue hose placed within the first PVC pipe into the waters of the watercourse running through 46 Myoora Road at the commencement point ( the discharge issue ); (b) the waters thus discharged from 48 Myoora Road into the watercourse at the commencement point polluted the waters of the watercourse ( the pollution issue ); and (c) Mr Severino/Mr Koch caused the pollution of the waters ( the causation issue ). The Discharge Issue 26 In my opinion, the evidence of Mr Wintle clearly supports the first proposition that on 21 February 2005 waters from 48 Myoora Road were discharged via a blue hose placed within the first PVC pipe into the waters of the watercourse running through 46 Myoora Road at the commencement point. I accept Mr Wintle's evidence in this regard. His evidence on this point is consistent with the evidence of a defence witness, Mr Domenico Speziali, which I also accept and to which I refer below. Mr Severino did not dispute that this proposition has been established. It was not expressly challenged by Mr Koch. The Pollution Issue 27 Having regard to s 120(1) of the Act and the definitions set out earlier, in order to establish the element of pollution, the prosecutor is required to prove that the physical, chemical or biological condition of the waters in the watercourse was changed by the discharge from the blue hose which led from 48 Myoora Road.

28 The defendants submit that the prosecution case was based on a false premise that sediment-laden water was pumped into the watercourse at the commencement point from Sediment Pit 1. Reliance is placed on the evidence of Mr Domenico Speziali, a civil works contractor employed by Mr Severino who gave evidence in Mr Severino's case. Mr Speziali gave evidence that a system of drainage and sediment control, which he had designed and constructed, was employed on 48 Myoora Road and that the water discharging from the first PVC pipe at the commencement point was in fact filtered water which had passed through that system and been pumped off the site from a second sediment pit (Sediment Pit 2).

29 According to Mr Speziali's evidence, that system operated as follows. Stormwater was captured in Sediment Pit 1. If there was heavy rain, water would be pumped from Sediment Pit 1 to one or other of two sediment dams. That water would then gradually drain back to the pit, with a lot of it evaporating on the way. In addition, water would be pumped from Sediment Pit 1 into the area surrounding that pit, which had been cut into rock and filled with gravel and crushed sandstone. The water would then drain back into Sediment Pit 1 through the gravel, which helped to remove some of the sediment. Sometimes, a pump with a flotation valve was placed in Sediment Pit 1. The hose would be rolled out to a sump situated approximately 20 metres to the east of Sediment Pit 1, and water would be pumped from the pit to the sump. A channel, approximately 50 metres long, which had been cut into rock and filled with crushed sandstone and gravel, led from the sump to Sediment Pit 2. The sandstone and gravel in the channel had been replaced three or four times after rain during the short period from November 2004 to February 2005 in which Mr Speziali worked on the site. The water which had been pumped to the sump would pass through a filter cloth placed at the exit point of the sump and drain by gravity down that channel to Sediment Pit 2. Near the top of that pit was an electric pump with a float valve. When the water in the pit reached the level of the pump, the pump would automatically switch on and pump water via a hose, which discharged through to the first PVC pipe at the commencement point.

30 Mr Speziali was at the subject land on the morning of the alleged pollution incident. He testified that when he left that day at 9:30 am, all the pumps were working. However, consistently with Mr Severino's evidence, he agreed in cross-examination that water was not pumped to one of the sediment dams from Sediment Pit 1 that day. He explained "There was no need, the place wasn't flooded, there wasn't much water in there".

31 Mr Speziali testified that he did not have a hose that would reach the 100 metres or so from Sediment Pit 1 to the watercourse. He further said that the photographic evidence tendered by the prosecutor was inconsistent with the proposition that there was a pump out of water from Sediment Pit 1 to the commencement point and consistent with the filtration and drainage system he had implemented.

32 The prosecutor submits in response to this evidence that Mr Speziali's system is not a verified one and that, by his own admission, Mr Speziali does not profess to be an expert in the field of stormwater engineering. Further, the prosecutor submits that even if such a filtration system were in place and operating at the time of the alleged pollution incident, it would be open to the court to find that the system was singularly unsuccessful in treating the polluted waters.

33 Alternatively the prosecutor says it is open to the court to conclude that Mr Speziali's system was not employed at the time of the alleged pollution incident. The prosecutor submits that there is no evidence that the system was, in fact, operating in the afternoon of 21 February 2005, Mr Speziali having observed it working at the latest at 9:30 am that morning; and that Mr Severino acknowledged a failure to have used such a system in conversations with Mr Wintle that afternoon. The prosecutor points to Mr Severino's failure to refer to Mr Speziali's intricate system in his conversations with Mr Wintle in the afternoon, despite Mr Severino's knowledge of that system. The prosecutor submits that the length of the blue hose, ascertained by estimating the lengths of hose present in various photographs taken by Mr Wintle, is consistent with the suggestion that the hose led not to Sediment Pit 2 but, in fact, to Sediment Pit 1. The prosecutor submits that the act of turning off the pump in Sediment Pit 1, as Mr Severino did on the afternoon of 21 February 2005, is more consistent with this suggestion that the water was being pumped from Sediment Pit 1 directly to the commencement point than with the suggestion that it was pumped to a filtering train. This is because turning off the pump in Sediment Pit 1 would not have stopped the pump out from the site, that being generated by the pump located in Sediment Pit 2.

34 Finally, the prosecutor submits that whether or not such a filtration system existed or was operating at the time of the alleged pollution incident, by simple dint of the fact that the waters were discharged from somewhere on the site and (it submits) contained suspended solids at a level greater than the level of the receiving waters, the elements of the offence are established.

35 I accept Mr Speziali's evidence. I am satisfied that Mr Wintle was mistaken in thinking that the water from the blue hose that led to the commencement point came directly from Sediment Pit 1. I am satisfied that it came from Sediment Pit 2. The photographic evidence tends to support this conclusion. Contrary to the prosecution's submissions, I think it would be unreasonable to infer that the system was not working simply because Mr Severino did not describe it in his conversation with Mr Wintle. Nor should it be inferred that the blue hose led from Sediment Pit 1 because Mr Severino turned off the pump in that pit. That action would have stopped the pumpout through the blue hose, albeit not as quickly as turning off the pump in Sediment Pit 2. Mr Wintle conceded in cross-examination that he did not go back to the commencement point after the pump in Sediment Pit 1 had been turned off and that he did not know whether the flow from the first PVC pipe into the commencement point thereafter ceased.

36 Contrary to the prosecutor's submission, Mr Severino did not acknowledge to Mr Wintle that this filtration system was not working that day. What he acknowledged, according to Mr Wintle's affidavit was that the filter dam was not being used that day. Mr Speziali gave evidence to the same effect. Pumping of water from Sediment Pit 1 to the filter dam is not the same as the system whereby water was pumped from Sediment Pit 1 to a sump and, filtered en route to Sediment Pit 2 and then pumped from Sediment Pit 2.

37 Mr Speziali's evidence establishes that all pumps were working when he left the site at 9:30 am that day, with the exception of the pump to the dam. It is a reasonable inference, and I find, that those pumps continued to work throughout that day until the pump in Sediment Pit 1 was turned off by Mr Severino during Mr Wintle's visit.

38 The question remains whether this filtration system was successful in preventing polluted waters from reaching the watercourse. In other words, despite the filtration system, did the waters from 48 Myoora Road pollute the watercourse? Here, Mr Wintle's samples are critical.

39 Sample 1, taken by Mr Wintle from under or adjacent to the discharge from the first PVC pipe, after the water from that pipe had mixed with water in the commencement point pond, showed a concentration of 350mg/L of suspended solids. Sample 2, consisting mainly of water from a pool on the right of the concrete pipe and topped up with clear water discharging from the second PVC pipe showed a concentration of 24mg/L of suspended solids. The prosecutor submits that this method of testing was appropriate in the circumstances and that the discrepancy between the two results clearly establishes the element of pollution.

40 The defendants submit that the sampling conducted by Mr Wintle does not provide reliable evidence permitting of a reasonable comparison between the concentration of suspended solids in waters being discharged from the site and the concentration of suspended solids in the receiving waters.

41 The defendants submit that the sampling exercise was marred by significant irregularity when compared with what is identified in the Australian/New Zealand Standard 5677.1:1998; a standard which has been adopted by the relevant EPA Guidelines. Mr Wintle conceded in cross-examination that the sampling exercise he undertook was, by reference to that Standard, unreliable. It was submitted for the prosecution that the manner of testing required varies according to what it is that one is testing for and that the guidelines do not mandate the carrying out of certain procedures, but rather enumerate factors which "should be considered" by the sampler. The prosecution submitted that in the present case, where Mr Wintle was sampling for suspended solids, it was unnecessary to carry out the degree of micro-sampling suggested by the defendants and that the testing done by Mr Wintle was sufficient.

42 Whilst I accept that the circumstances of the case did not call for the kind of elaborate sampling regime suggested by the defendants, I am unable to agree that the sampling conducted by Mr Wintle provides reliable evidence that the concentration of suspended solids being discharged from 48 Myoora Road through the blue hose was greater than that of the receiving waters. My reasons are as follows.

43 There is no direct evidence of the concentration of suspended solids in the waters discharged from 48 Myoora Road or in the receiving waters. That is because Sample 1 was taken not from the blue hose or the first PVC pipe, which led to 48 Myoora Road, but from the commencement point pond, after the water from the first PVC pipe had mixed with the waters in the pond. In addition, there is evidence of alternative sources of waters in the pond and of stirring up of sediment at the bottom of the pond beneath the discharge point. Further, Sample 2 was diluted by clear water from the second PVC pipe.

44 The prosecutor's pollution case is therefore based on circumstantial evidence. In Doney v The Queen (1990) 171 CLR 207 at 211 Deane, Dawson, Gaudron and McHugh JJ said: Circumstantial evidence is evidence which proves or tends to prove a fact or set of facts from which the fact to be proved may be inferred. Circumstantial evidence can prove a fact beyond reasonable doubt only if all other reasonable hypotheses are excluded. See also Shepherd v R (1990) 170 CLR 573 at 578 (per Dawson J), Stevens v R (2005) 222 ALR 40 at 48 [25] (per McHugh J) and Imnetu v R [2006] NSWCCA 203 at [31] - [32] (per McLellan CJ at CL with whom Johnson and Latham JJ agreed).

45 This Court has applied that principle in a number of water pollution cases where it has determined that a reasonable hypothesis consistent with innocence did exist. In Environment Protection Authority v All Chrome Shop Pty Ltd (1996) 89 A Crim R 474 pollutants were discharged into a street gutter via some temporary PVC pipes located on the defendant's premises. It was held to be a reasonable hypothesis that the temporary PVC pipes had been installed by an unknown third party unassociated with the defendant. In Cliftleigh Haulage Pty Ltd v Byron Shire Council [2005] NSWLEC 692 pollution was occasioned by the escape of oil during the process of the crushing of cars on the defendant's premises by the use of the defendant's excavator. It was held to be a reasonable hypothesis that the excavator was operated by an unauthorised third party. In Environment Protection Authority v Munters Pty Ltd (1998) 98 LGERA 279 a resin based pollutant escaped from the defendant's premises into waters. It was held to be a reasonable hypothesis that it had been spilt by an independent contractor rather than by the defendant. In Eslarn Holdings Pty Ltd v Tumut Council (Lloyd J, NSWLEC, 20 October 1998, unreported) a creek was polluted. It was held to be a reasonable hypothesis that the source was other than a discharge from the appellant's premises. In all these cases, in failing to exclude the reasonable hypothesis, the prosecution failed.

Sample 1 46 Sample 1 was put forward by the prosecution as being representative of the waters discharging from the blue hose which led from 48 Myoora Road. It is important to note that this sample was not taken from the blue hose itself, nor from the first PVC pipe to which the blue hose was connected, but rather from the commencement point pond below or adjacent to the discharge of the water from the first PVC pipe, after the discharge had mixed with the water in that pond. The defendants submit that the Court cannot be satisfied beyond reasonable doubt that Sample 1 represents the water being discharged from the blue hose and thus from 48 Myoora Road.

47 Mr Anink, an environmental scientist who specialises in aquatic ecology, was called in Mr Severino's case to give evidence on the pollution issue. I accept his evidence.

48 Mr Anink gave evidence that the level of suspended solids in Sample 1 reflected the concentration of suspended solids in the ponded water from which the sample was taken, which itself comprised a number of sources. It was therefore impossible, he said, to ascertain how the total concentration of 350mg/L of suspended solids was constituted, absent any evidence of the concentration of suspended solids attributable to the water from each source. Apart from the water from the blue hose, the alternative sources of water which could have been included in Sample 1 were described by Mr Anink as:

(i) stormwater flowing down the swale located within 46 Myoora Road close to the boundary with 48 Myoora Road, which discharged to the commencement point; (ii) stormwater conveyed via a drainage easement over 48 Myoora Road from the Hills Flower property to the north ( the northern easement ) which discharged to the commencement point; (iii) stormwater in the form of overland flow seeping through or overtopping a hay bale and silt fence bordering the eastern side of the commencement point pond; (iv) stormwater draining from Mona Vale Road along a RTA drainage easement and discharging from a RTA culvert and headwall on the eastern branch of the watercourse; (v) waters draining through the second PVC pipe to the east of the concrete pipe at the commencement point.

49 In Mr Anink's view, it may well be that the overall suspended solids concentration of that portion of the pond from which Sample 1 was obtained was decreased by the discharge of clearer water to the pond from the first PVC pipe.

50 As Sample 1 was not taken from the blue hose which led from 48 Myoora Road or the first PVC pipe, the proposition that the elevated concentration of solids in Sample 1 came from 48 Myoora Road is based on circumstantial evidence.

51 The defendants submit that the prosecutor has failed to exclude the reasonable hypothesis that, on 21 February 2005, there were elevated concentrations of suspended solids in the commencement point pond as a consequence of waters containing elevated concentrations of suspended solids having flowed into the commencement point pond from the abovementioned alternative sources during, or as a result of, storms in the preceding two days.

52 On Saturday 19 February 2005, 24.2mm of rain fell between 5:00pm and midnight. It was particularly intense between 5:00 pm and 6:00 pm: 15.4mm fell during that hour. On Sunday 20 February 2005, 24,2mm of rain fell between 6:00 pm and 11:00 pm, of which 10.6 mm fell in one hour between 6:00 pm and 7:00 pm. Mr Anink said that these were significant storms. Mr Anink gave evidence that: (a) as a result of these storms he would have expected to see elevated turbidity and elevated concentrations of suspended solids at the commencement point ; (b) during the height of the storm he would expect the concentration of suspended solids coming down from the RTA culvert and the swale to be anything up to 1,000mg per litre ; (c) he would have expected to see concentrations of 350mg per litre of suspended solids at the commencement pond at the time that Mr Wiintle attended and took the samples.

53 In Mr Anink's cross-examination, there was the following exchange: Q. You know, do you not, that if someone puts a sample bottle in a pond directly under the discharge from the PVC pipe then the likelihood is that the collection of the sample is of the material from the PVC pipe, you know that don't you?

A. Completely wrong Mr Galasso, I would suggest to you … that that is the most inappropriate way to sample it. I have absolutely no way that I can tell you of what constitutes what is in that sample. That's completely wrong. The sample is going to be a sample of water from a whole lot of different sources mixing at that point.

54 Mr Anink also considered that the concentration of suspended solids in Sample 1 could have been elevated by virtue of the existence of sediments already in the commencement point pond, which may have been re-suspended from the bed of the pond by the action of water from the first PVC pipe falling on it. He said that there is no evidence as to the extent to which this may have affected the concentration in Sample 1. First alternative source: stormwater from the swale 55 Sections of the swale holding cloudy waters are visible in photographs in evidence. Mr Wintle did not accept the descriptive term "swale". But he agreed that it was a depression in the ground with a bank on either side and that it had sediment laden water in it. Mr Wintle did not investigate the source of the sediment laden water in the swale.

56 In his oral evidence in chief, Mr Anink identified the location of the swale (by marking it on Exhibit 2D14). He indicated that it ran between the two sets of trees all the way back to the property that is at the rear of 48 Myoora Rd and that it appeared to drain waters from both that property and also possibly from Myoora Road down to the commencement point. Mr Anink thought the swale was just within 46 Myoora Road but could not say exactly where it sat in terms of the boundary.

57 When cross-examined about the swale, Mr Anink said that the mounded sections ceased at round about the boundary of the church property and the private house on 48 Myoora Rd. The "church property" is No 46. When cross examined about the quality of water that might be in the swale during and after the storms of 19 and 20 February 2005, there was the following significant exchange: Q. And you wouldn't expect, for example, that the level of suspended solids coming in from the swale as a concentration in water would be in the order of magnitude of 350 milligrams per litre as opposed to something coming from the RTA headwall of an order of magnitude of 24 milligrams per litre, would you? You wouldn't expect that disparity?

A. At the height of the storm I'd expect it to be anything up to 1,000 milligrams per litre coming down, so that as we tail off from the storm there would be different concentrations as sediment started to settle out. But no, I would expect to see high levels from the RTA wall and from the - presumably from that swale.

58 Mr Speziali gave evidence about the swale to the effect that one of the problems they had whenever it rained was that water washed down it to the creek. He said that water would flow from the monastery to the north of 48 Myoora Rd and from Myoora Rd itself in front of the properties located at the Myoora Rd frontage, which were not part of the construction site, and then down the swale. I have said earlier that I accept his evidence. Second alternative source: stormwater from the northern easement 59 The northern easement is registered on the title to 48 Myoora Road. At the time of the alleged offence it was one metre wide, and ran from the Hills Flower property (to the north of 48 Myoora Road) across 48 Myoora Road to the commencement point. Until late 2004, there was a concrete pipe which carried stormwater from the Hills Flower property along this easement across 48 Myoora Road to the commencement point. The most downstream part of this concrete pipe was observed by Mr Wintle at the commencement point on 21 February. In late 2004, Mr Speziali cut this pipe out but left two sections in place near 46 Moora Road where it ran into the creek. With a plumber, he connected two PVC pipes to the concrete pipe near the Hills Flower property. The PVC pipes ran underground and drained into the sections of the concrete pipe near the creek. This evidence of Mr Speziali was not challenged in cross-examination. It is consistent with a photo which shows the PVC pipes protruding from the severed section of concrete pipe near the boundary of 48 Myoora Road and the Hills Flower property.

60 Mr Wintle was unaware of the existence of the northern easement until he was cross-examined. He agreed in cross-examination that he could not opine that sediment laden stormwater from the northern easement did not form part of the commencement pond following the rainfall on 19 and 20 February 2005.

61 During and after the storms that occurred over the two days prior to the alleged offence, there were potentially two sources of stormwater flowing into the commencement point pond via the northern easement. First, stormwater from the Hills Flower property captured in the PVC pipes which then drained to a point within the concrete pipe at the commencement point. Secondly, overland flows during high flow events when the capacity of the pipe system to take the flow was exceeded, which could seep through or overtop the hay bale and silt fence.

62 Although the Hills Flower property was the immediate source of the stormwater to the north, it appears likely that stormwater from other properties to the north of the Hills Flower property flowed onto that property because of the gradient. Third alternative source: waters seeping through or overtopping the hay bale and silt fence 63 Mr Anink said that he suspected this was the most significant source during the height of the storms. This source overlaps with the second source because stormwater from the northern easement appears to be the source or major source of water seeping through and overtopping the hay bale and silt fence.

Fourth alternative source: stormwater from Mona Vale Road via the RTA drainage easement 64 By proclamation in NSW Government Gazette No 94 of 18 August 1948, an easement was created from Mona Vale Road (then called Pittwater Road) through the land which is now 48 and 46 Myoora Rd along the route of the waterway now running through No 46 to a dam or tank which no longer exists. This drainage easement encompassed the waterway to the point where it passes under Myoora Rd, with the exception of the western fork. It appears that what was referred to in the proceedings as a watercourse was this drainage easement with the addition of the western fork. .

65 As at the date of the alleged offence, there were three stormwater pits on the western side of Mona Vale Road located on or near the Mona Vale Rd frontage to drain stormwater through this drainage easement. These were the only pits for a long way up and down Mona Vale Road. Stormwater on Mona Vale Road drained to these pits from the north, and possibly also from the south and the other (eastern) side of that road.

66 Water entering these pits flowed through gross pollutant traps to a single pipe, which discharged via a concrete headwall structure to a point on the eastern fork of the watercourse, some 6 metres or less from the commencement point. Unlike other alternative sources, this stormwater from Mona Vale Road did not discharge to the commencement point, which is located on the western fork.

67 I accept that the commencement point pond, as at the date of the alleged offence, was likely to have included waters from both the eastern and western forks for the following reasons. There was heavy rain on 19 and 20 February 2005. There was a restriction of flow downstream of and near the joinder of these two forks formed by a small compacted earth driveway that had been built across the easement, which had in it a 300mm diameter pipe. Mr Anink testified that under dry weather conditions the eastern and western forks were two distinct small streams, but under wet weather conditions the water ponded and backed up behind the constriction, covering the two forks and the commencement point, and stayed there until it could get through the 300mm diameter pipe. Mr Anink had seen this when he inspected the site on 6 April 2006. Mr Wintle was aware of the presence of a constriction of flow in the form of a bridge of sorts downstream at the confluence of the two forks, during and after significant flow events. He did not agree that water draining down the two forks would merge as a pond in the location of the commencement point, but this was something that he had not specifically inspected at the time he prepared his affidavit. However, he agreed that he could not opine that sediment laden stormwater from the RTA easement did not form part of the commencement pond following the rainfall on 19 and 20 February 2005.

68 Photographs in evidence depict brown apparently sediment laden waters flowing from the north down the gutter on the western side of Mona Vale Road into one of the stormwater pits near the boundary between 48 Myoora Rd and the Hills Flower property and flowing out of a concrete pipe and headwall structure, which appears to be the exit point of stormwater draining from Mona Vale Rd. The photos are not contemporaneous with the date of the alleged offence. However, they evidence that brown sediment laden water may flow along Mona Vale Road, down into the pits and discharge at the concrete culvert and headwall structure on the eastern fork of the watercourse.

69 That such water is sediment laden also derives support from the evidence of Mr Kander, a defence witness, who was present as the official photographer at a wedding function at 48 Myoora Road on 26 February 2006 during heavy rain. He observed and photographed a significant volume of apparently sediment laden water flowing down the driveway from the direction of Mona Vale Road. Although he could not definitely say that the water came from Mona Vale Road, as distinct from the adjacent property to the north of the driveway, it seems likely to have come from Mona Vale Road given Mr Kander's evidence that he could see all the way up the driveway due to floodlighting, and that the driveway was the only entry point because there was an edge on the garden. Fifth alternative source: the second PVC pipe 70 The evidence does not disclose the source of the flow through the second PVC pipe. Mr Wintle's evidence was that it was a clear flow when he took his samples. I accept that evidence. Conclusion Re Alternative Sources of Sample 1 71 It is significant that Mr Wintle did not take a sample directly from the blue hose which undoubtedly led from the construction site on No 48. Had he done so, there would have been no question as to the source of the water in Sample 1. When asked in re-examination why he did not do so, he said "Sorry, I don't have an answer for that". Because he did not do so, the door was thrown open to the defendants to adduce evidence in support of hypotheses that the water in Sample 1 included waters from other sources that had entered the commencement point pond as a result of storms over the preceding two days. In the result, I am of the opinion that there are reasonable hypotheses that Sample 1 included water from the suggested alternative sources to which I have referred, other than the second PVC pipe, and that the prosecutor has not excluded those hypotheses. I am not satisfied that such a hypothesis is reasonable in the case of the water from the second PVC pipe because it was observed to be clear on the day of the alleged offence and nothing is known of its source.

72 Consequently, in my opinion, it has not been proved beyond reasonable doubt that Sample 1 is a reliable sample of waters pumped from 48 Myoora Road. Sample 2 73 The prosecution must prove that the discharge from 48 Myoora Road changed the condition of the receiving waters. Sample 2 was put forward by the prosecution as being representative of the condition of the receiving waters. In examination-in-chief, Mr Wintle said he had taken Sample 2 from a pool to the east of the first PVC pipe. This was on the right hand side of a large concrete pipe and just below the second PVC pipe. In cross-examination, however, he said that Sample 2 was a composite sample, comprising a mixture of water from the pond to the right of the large concrete pipe and clear water discharging from the second PVC pipe. There is no evidence as to the source of the water from the second PVC pipe. Mr Wintle conceded in cross-examination that he did not check where that pipe came from, having assumed that it was "base flow from a spring or whatever". There is no evidence as to how much of Sample 2 came from that pipe, other than Mr Wintle's evidence that Sample 2 came "mainly" from the pond and "a little" from the second PVC pipe. In Mr Anink's opinion, Sample 2 provided no useful information and could not be relied upon to establish background water quality of the commencement pond. Mr Wintle in cross-examination conceded that his manner of obtaining Sample 2 was inappropriate such as to deprive that sample of any probative value whatsoever. Given the state of the evidence, I am not satisfied beyond reasonable doubt that Sample 2 should be accepted as representative of the receiving waters. Colour of the Discharge 74 Mr Wintle said in cross-examination that the water pumped from 48 Myoora Road was a "different colour" to the colour of the water in the creek. However, the prosecution did not press a pollution case based upon the colour differences. In any event, I accept Mr Severino's submission that it would be unsafe to find pollution proved on the basis of colour difference. Mr Anink's opinion, which I accept, is that it is well known in the discipline of water science that colour is a subjective and unreliable indication of the composition of waters, particularly concentrations of suspended solids. Conclusion 75 For these reasons, in my opinion, the prosecution has not proved beyond reasonable doubt that the waters discharged from 48 Myoora Road polluted the waters of the watercourse. Consequently, the prosecution has not proved beyond reasonable doubt that the defendants are guilty as charged. The charge against each defendant must be dismissed. It is therefore unnecessary to address the causation issue. Orders 76 I make the following orders in each proceedings: (i) the proceedings against the defendant are dismissed; (ii) costs are reserved; (iii) the exhibits may be returned.

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