Environment Protection Authority v Sydney Water

[2022] NSWLEC 100

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Environment Protection Authority v Sydney Water [2022] NSWLEC 100

Hearing dates:

30 and 31 August; 1, 3, 7 and 14 to 17 September and 16 December 2021; written submissions 15 and 16 December and further written submissions 4 and 11 March 2022

Date of orders:

11 August 2022

Decision date:

11 August 2022

Jurisdiction:

Class 5

Before:

Moore J

Decision:

See directions in Matter No 11340 0f 2020 at [551]; orders in Matter No 11341 of 2020 at [552] and orders in Matter 11342 of 2020 at [553].

Catchwords:

PROSECUTION - charge of pollute waters - split in sewer rising main - Defendant relies on statutory defence pursuant to s 122 of the Protection of the Environment Operations Act 1997 (the POEO Act) - consideration of conditions of the Defendant’s environment protection licence (the EPL) - consideration of whether the facts, in conjunction with the EPL conditions, establish the statutory defence - statutory defence established - alternative defence of honest and reasonable mistake of fact also raised - alternative defence also established - Defendant to be found not guilty of rising main offence - Prosecutor’s application to consider findings on defences before entering any orders for acquittal - rising main offence proceedings adjourned to permit Prosecutor to consider findings

PROSECUTION - charge of pollute waters - overflow of sewage pumping station caused during repair of split rising main - overflow of untreated sewage from pumping station into waterway - Defendant raises defence of necessity - Defendant proposes that defence is not confined to circumstances of immediate and irreparable harm to human health or life - expansive approach to defence of necessity rejected - Defendant relies on evidence establishing belief held by relevant employees of immediate and irreparable risk of harm to human health or life - evidence does not establish the existence of such a belief - defence of necessity not established - Defendant convicted of pumping station charge - matter adjourned to permit setting down of, and directions for preparation for, sentencing hearing

PROSECUTION- charge of breach of EPL condition - alleged failure to maintain equipment - failure to divert sewage from pumping station serving the split rising main - charge that Defendant failed to maintain the valve that would have permitted the diversion of sewage - Defendant concedes failure to operate the valve but submits that valve had been maintained - Defendant presses “wrong charge” defence on the basis that the charge was founded on the wrong element in the condition of the Defendant’s EPL - evidence establishes operator error and not failure to maintain - Defendant found not guilty and acquitted

Legislation Cited:

Crimes (Appeal and Review) Act 2001, s 52

Criminal Appeal Act 1912, s 5AE(1)

Criminal Procedure Act 1986, s 160(2)

Evidence Act 1995, s 187

Inclosed Lands Protection Act 1901, s 4B(1)(a)

Local Government (Approvals) Regulation 1999

Protection of the Environment Operations Act 1997, ss 64(1), 120(1), 122 and 169C

Cases Cited:

Bartter Enterprises Pty Ltd v Environment Protection Authority [2022] NSWCCA 43

Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority [2021] NSWLEC 92

Environment Protection Authority v Bartter (No 3) [2020] NSWLEC 114

Environment Protection Authority v Charlotte Pass Snow Resort Pty Ltd [2021] NSWLEC 37

Environment Protection Authority v Queanbeyan City Council [2010] NSWLEC 237

Environment Protection Authority v Sydney Water Corporation [1998] NSWLEC 144

Environment Protection Authority v Sydney Water Corporation [2020] NSWLEC 153

Environment Protection Authority v Unomedical Pty Limited (No 3) (2010) 79 NSWLR 236; [2010] NSWLEC 198

Environment Protection Authority v Wollondilly Abattoirs Pty Limited & Davis [2019] NSWCCA 312

Lopes v Cook [2020] NSWSC 1776

Minister for the Environment v Sharma [2022] FCAFC 35

Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220

Plaintiff S297-2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179

Proudman v Dayman (1941) 67 CLR 536

Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560

Taiapa v The Queen (2009) 240 CLR 95; (2009) 214 A Crim R 486; (2010) 261 ALR 488; [2009] HCA 53

Veira v Cook [2021] NSWCA 302

Williams v The Queen (1978) 140 CLR 591

Environment Protection Authority v Australian Iron and Steel (1992) 28 NSWLR 502

Category:

Principal judgment

Parties:

Environment Protection Authority (Prosecutor)
Sydney Water (Defendant)

Representation:

Counsel:
Mr D Buchanan SC/Mr R Ranken and Ms S Constable, barristers (Prosecutor)
Mr I Hemmings SC/Ms S Hall, barrister (Defendant)

Solicitors:
Environment Protection Authority (Prosecutor)
Maddocks (Defendant)

File Number(s):

11340, 11341 and 11342 of 2020

Publication restriction:

No

TABLE OF CONTENTS

Introduction

The charges

Introduction

The valve charge - Matter No 11342 of 2020

The rising main charge - Matter No 11340 of 2020

The pumping station charge - Matter No 11341 of 2020

The Statement of Agreed Facts

Sydney Water’s “not guilty” pleas

Relevant statutory provisions

Introduction

The valve charge

The rising main charge and the pumping station charge

Sydney Water’s statutory defence to the rising main charge

Sydney Water’s environment protection licence

Introduction

The valve charge

The rising main and pumping station charges

The rising main charge

Representation

The hearing

Introduction

The general progress of the hearing

The parties’ closing submissions

The evidence

Introduction

Notes on terminology

The oral evidence

The Prosecutor’s witnesses

Sydney Water’s evidence

The Prosecutor's written evidence

The Prosecutor’s application to reopen

Introduction

The reopening topics

Topic 1 - reliance on the s 122 POEO Act defence

Introduction

The Prosecutor's submissions

Sydney Water’s response

Consideration

Topic 2 - Sydney Water’s “wrong offence” defence to the valve charge

Introduction

The Prosecutor's submissions

Sydney Water’s response

Consideration

Conclusion on reopening application matters

The Bartter Enterprises decisions

Introduction

Duggan J’s decision in Bartter (No 3)

The decision of the Court of Criminal Appeal

The Prosecutor’s submissions

Sydney Water’s submissions

Consideration of Bartter CCA

The valve charge

Introduction

The evidence

Introduction

The pre‑trial circumstances of Mr Aquilina's evidence

Mr Aquilina's evidence

Mr Saad's evidence

Mr Kelly’s evidence

The Prosecutor's submissions

The submissions for Sydney Water

Mr Aquilina’s evidence

Dr Martens’ evidence

The relevance of the 600 millimetre valve at SP0187

Conclusions based on the evidence

Admissions

Conclusion on the valve charge

Observations on the burden of proof

The rising main charge

Introduction

The damaged section of the rising main

Sydney Water’s defence

The evidence

Mr McDonald’s evidence

Mr Holland’s evidence

Mr Holland’s affidavit evidence

Mr Holland’s oral evidence

Mr Ferguson’s evidence

Introduction

Mr Ferguson is interviewed by officers of the Prosecutor

Mr Ferguson’s 2007 condition report

Mr Ferguson’s initial responses to the January 2019 rising main failure

Mr Ferguson’s first pipe failure report

Mr Ferguson’s final pipe failure report

Mr Ferguson’s oral evidence

What actually took place on the night of the incident

The Prosecutor's submissions

The submissions for Sydney Water

Consideration of the statutory defence

Introduction

The statutory provisions

The relevant EPL conditions

The legal issue

The facts concerning the failure of the rising main

The Prosecutor’s rising main duplication proposition

Conclusion on the availability of the statutory defence

Sydney Water’s defence of “honest and reasonable mistake of fact”

Introduction

The Prosecutor’s submissions

Sydney Water’s submissions

Consideration

Introduction

Addressing the required questions

Introduction

Was there a positive exculpatory factual belief honestly held?

Was the act (or here, omission) based on the belief?

Was the mistaken belief one of law?

Was the mistaken belief a mixed one of fact and law?

Was a lack of knowledge or mere ignorance a basis for the defence?

Was the mistaken belief based on nothing more than a general understanding that everything is in order?

Was the mistaken belief sufficiently specific to relate to elements of the offence in question?

Was the mistaken belief said to be supported by an absence of fault or an absence of negligence?

Has Sydney Water established the defence on the balance of probabilities?

Has the Prosecutor negatived the defence beyond reasonable doubt?

Conclusion on the defence of honest and reasonably held mistake of fact

The pumping station charge

Introduction

The relevant factual framework

The basis of Sydney Water’s defence

The Prosecutor's submissions

Sydney Water’s foundational submissions

The decision of Veira v Cook [2021] NSWCA 302

Introduction

The hearing of 16 December 2021

The Prosecutor’s submissions on Veira v Cook

The submissions for Sydney Water on Veira v Cook

Consideration of the applicability of Veira v Cook

Consideration and conclusion on the pumping station charge

Introduction

The “necessity” defence and human health

The extent of Sydney Water’s evidence

Prospect Creek, recreational use and impacts on the creek

Submissions on knowledge and/or belief

Consideration of the first of the Loughnan tests

Conclusions

introduction

The valve charge

The pumping station charge

The rising main charge

The Prosecutor’s adjournment application

Introduction

Directions

Orders

Judgment

Introduction

1. The Environment Protection Authority (the Prosecutor) has charged Sydney Water Corporation (Sydney Water) with three breaches of the Protection of the Environment Operations Act 1997 (the POEO Act). The breaches are all said to arise as a consequence of the failure of one of Sydney Water’s sewer mains (the rising main) located at Carrawood Reserve in Carramar, a suburb in south‑western Sydney. The POEO Act establishes a regime that enables potentially significantly polluting activities to be regulated by the issuing of an environment protection licence (EPL) to the individual or entity proposing to carry out the regulated activity.

2. As discussed in more detail below in the Statement of Agreed Facts (SOAF), Sydney Water held, at the relevant times, an EPL encompassing the elements of the Southern Suburbs Sewage Treatment System arising for consideration in these proceedings. The elements of Sydney Water’s sewage disposal and treatment network, covered by the matters giving rise to the three charges, are all within the scope of Sydney Water’s EPL (EPL 752).

The charges

Introduction

3. It is first appropriate to set out, briefly, the nature of the three charges which the Prosecutor has made against Sydney Water. I do so in the order in which this judgment addresses the charges - this is not to be taken as any comparative reflection of their comparative seriousness.

4. The three charges made against Sydney Water can conveniently be referred to as the valve charge, the rising main charge and the pumping station charge. It will be convenient, throughout this decision, to refer to the relevant charge by the appropriate short descriptor.

5. The first charge I deal with (the valve charge) alleges that the extent of discharge of untreated sewage into Prospect Creek was exacerbated as a consequence of Sydney Water’s failure to satisfy the terms of its EPL requiring it to maintain properly the equipment in its network, where proper maintenance would have permitted proper operation of a valve which would have diverted sewage to an alternative part of Sydney Water’s system.

6. The second charge (the rising main charge) and the third charge (the pumping station charge) are “pollute waters” charges which arise from untreated sewage being discharged into Prospect Creek after the failure of the rising main and the subsequent shutting down of the nearby pumping station (SP0187).

7. The details of the charges, and the particularisation in the relevant Summons, are set out below. Details of the uncontested, relevant factual matters concerning each charge can be understood from the SOAF - tendered and becoming Exhibit B (SOAF) - which set out the following charge details.

The valve charge - Matter No 11342 of 2020

8. It is appropriate, first, to set out the terms of the valve charge and the particulars pleaded by the Prosecutor in support of this.

9. Following setting out those details, it is next appropriate to set out the terms of each of the “pollute waters” charges and the particulars pleaded in support of each of them.

10. The valve charge and its particulars are set out in the Summons in the following terms:

From about 14 January 2019 to about 16 January 2019 inclusive, at or near the Southern Suburbs Sewage Treatment System reticulation system (Premises), including the sewage pumping station SP0187 (Pumping Station) at or near Sussex Street, Cabramatta, in the State of New South Wales, it committed an offence against section 64(1) of the POEOA in that it was the holder of a licence, a condition of which was contravened by a person.

Particulars

a.   Licence

Environment Protection Licence number 372.

b.   Licence condition

Condition 02.1, which states:

"02.1 All plant and equipment installed at the premises or used in connection with the licensed activity : a) must be maintained in a proper and efficient condition ... "

c.   Manner of breach

The defendant failed to maintain an isolation valve (Isolation Valve) located on a 450mm and 375mm rising main leading from the Pumping Station to the Liverpool Water Recycling Plant in a proper and efficient condition, resulting in the Isolation Valve being inoperable from about 14 January 2019 to about 16 January 2019. As a consequence of the Isolation Valve being inoperable, untreated sewage that was being discharged from the Premises was not able to be diverted via the Isolation Valve to the Liverpool Water Recycling Plant.

The rising main charge - Matter No 11340 of 2020

11. The rising main charge (the first of the “pollute waters” charges) and its particulars are set out in the relevant Summons in the following terms:

From about 14 January 2019 to about 16 January 2019 inclusive, at or near the Southern Suburbs Sewage Treatment System reticulation system (Premises), including the 600mm pressurised rising main (Rising Main) leading from sewage pumping station SP0213 (Pumping Station) at or near Waterside Crescent, Carramar, in the State of New South Wales, it committed an offence against section 120(1) of the POEOA in that it polluted waters.

Particulars

a.   Waters

Prospect Creek, a tributary of the Georges River.

b.   Pollutant

i.   untreated sewage; and/or

ii.   excreta and urine; and/or

iii.   matter that contains faecal coliform; and/or

iv.   matter that contains a nitrogen compound; and/or

v.   matter that contains a phosphorus compound.

c.   Manner of breach

The Defendant, being the occupier of the Premises, caused the Pollutant to be placed into the Rising Main at the Premises. The Pollutant flowed through a lateral split in the Rising Main, into Carrawood Reserve, Carramar and into the Waters.

The pumping station charge - Matter No 11341 of 2020

12. The pumping station charge (the second of the “pollute waters” charges) and its particulars are set out in the relevant Summons in the following terms:

From about 15 January 2019 to about 16 January 2019 inclusive, at or near the Southern Suburbs Sewage Treatment System reticulation system (Premises), including the sewage pumping station SP0213 (Pumping Station) at or near Waterside Crescent, Carramar, in the State of New South Wales, it committed an offence against section 120(1) of the POEOA in that it polluted waters.

Particulars

a.   Waters

Prospect Creek, a tributary of Georges River.

b.   Pollutant

i.   untreated sewage; and/or

ii.   excreta and urine; and/or

iii.   matter that contains faecal coliform; and/or

iv.   matter that contains a nitrogen compound; and/or

v.   matter that contains a phosphorus compound.

c.   Manner of breach

The Defendant, being the occupier of the Premises, caused the Pollutant to flow into the wet well within the Pumping Station at a time when the Pumping Station was isolated. The Pollutant overflowed from the wet well within the Pumping Station, via a designated 525mm overflow pipe underground and into Prospect Creek.

The Statement of Agreed Facts

13. The Prosecutor and Sydney Water settled the SOAF which was tendered in these proceedings. It is set out below, in full, to provide details of background context of the events giving rise to these proceedings. The SOAF is in the following terms:

The defendant

1.   Sydney Water is a statutory State owned corporation established under the State Owned Corporation Act 1989. As a State owned corporation, Sydney Water has all the powers and responsibilities of a natural person.

BACKGROUND

Environment Protection Licence 372

2.   At all relevant times, Sydney Water held Environment Protection Licence No. 372 (Licence) issued under the POEO Act for the scheduled activity of “Sewage treatment” at the Southern Suburbs Sewage Treatment System. The licensed activity of “sewage treatment” means:

The operation of sewage treatment systems (including the treatment works, pumping stations, sewage overflow structures and the reticulation system) that involve the discharge or likely discharge of wastes or by-products to land or waters.

3.   For the purposes of the Licence, the premises was described in Condition A2.1 of the Licence as the “Southern Suburbs Sewage Treatment System”, which includes the following sewage treatment plants (STPs):

a.   “Malabar STP at Fishermans Road Malabar”;

b.   “Fairfield Storm STP, Symons Street, Fairfield”;

c.   “Glenfield STP, Victoria Road, Macquarie Fields”; and

d.   “Liverpool STP, Scrivener Street, Liverpool”.

4.   Condition A2.2 of the Licence provided that the premises also included “the reticulation system owned and operated by the licensee that is associated with the sewage treatment plant(s) identified in condition A2.1.”

5.   Condition E1.1 of the Licence further defined “reticulation system” as meaning “that part of the sewage treatment system which collects and transports sewage to the sewage treatment plant and includes all sewer pipes (whether greater or less than 300 mm diameter), access chambers, vent shafts, directed overflow structures and sewage pumping stations…”.

6.   The Licence contained the following relevant Limit Conditions:

L1   Pollution of waters

L1.1 Except as may be expressly provided in any other condition of this licence, the licensee must comply with section 120 of the Protection of the Environment Operations Act 1997.

L1.2   Subject to the conditions of the licence, sewage must not be discharged from the components of the reticulation system except from those components identified on the system map.

L1.3   Notwithstanding the provisions of the condition above, this licence does not permit the pollution of waters at any time during dry weather from:

a)   uncontrolled overflows, or

b)   directed overflows other than from sewage pumping stations, if a cause of the pollution is failure to:

i)   operate any part of the reticulation system in a proper and efficient manner; or

ii)   maintain any part of the reticulation system in a proper and efficient condition.

L1.4   This licence does not permit the pollution of water at any time during dry weather from any pumping station. This condition is effective from 1 July 2006.

…

L7.4   Dry weather overflow limits

The total number of dry weather overflows reaching waterways from the sewage treatment system subject to this licence must not exceed 122 in any reporting period.

7.   In addition, the Licence contained the following relevant Operating Condition:

O2   Maintenance of plant and equipment

O2.1   All plant and equipment installed at the premises or used in connection with the licensed activity:

a)   must be maintained in a proper and efficient condition; and

b)   must be operated in a proper and efficient manner.

The Pumping Station

8.   Sewage Pumping Station SP0213 (Pumping Station) was situated at Waterside Crescent, Carramar and formed part of the “reticulation system” the subject of Condition A2.2 of the Licence. The Pumping Station was originally constructed in 1965 and renewed in 1992.

9.   From the time of its constitution as a State Owned Corporation in 1994 and the transfer to it of the business undertaking of the (former) Water Board, Sydney Water was responsible for the management, operation, inspection, maintenance and repairs of the Pumping Station. Furthermore, by virtue of the provisions of the Water Board (Corporatisation) Act 1994, any act, matter or thing, done or omitted to be done in relation to the business undertaking before the transfer, by, to or in respect of the Water Board is (to the extent that that act, matter or thing has any force or effect) taken to have been done or omitted by, to or in respect of Sydney Water.

10.   The Pumping Station’s purpose was to collect wastewater from the Lansvale Wastewater System Area (also referred to as Lansvale Sewer Catchment Asset Management Plan (SCAMP)) and to pump it uphill into the North Georges River Submain (NGRS). The flows into the Pumping Station came from both the local catchment (which consists of parts of Canley Vale and parts of Lansvale) and the nearby Sewage Pumping Station SP0187, located in Cabramatta.

11.   The Pumping Station contained a designed overflow pipe which was located in the collecting maintenance hole. The designed overflow pipe flowed directly to Prospect Creek, with the end of the designed overflow pipe submerged in Prospect Creek. In the event that the pumps did not operate (or the flows into the Pumping Station exceeded the pumping capacity of the Pumping Station), the wet well continued to fill until it overflowed. The designed overflow pipe ensured that any wastewater that overflowed from the wet well was directed into Prospect Creek in order to protect public health and safety.

The Rising Main

12.   The Rising Main ran from the Pumping Station at Waterside Crescent, Carramar, underground through Carrawood Reserve and to Tuncoee Road, Carramar, and formed part of the “reticulation system” the subject of Condition A2.2 of the Licence. The Rising Main was a 600 mm diameter cast iron cement lined (CICL) pipe with a total length of 1,163 m (from the Pumping Station to Tuncoee Road, Carramar). The Rising Main was constructed in 1965 and was commissioned and operational in 1966.

13.   The Rising Main’s function was to transport wastewater from the Pumping Station to the main sewer carrier for the area, the NGRS. The flows were pumped from the Pumping Station to the Rising Main, then to the NGRS, and eventually to the Malabar STP.

The Isolation Valve

14.   Sewage Pumping Station SP0187 was situated at Sussex Street, Cabramatta. There was a 600 mm rising main used to pump wastewater from Sewage Pumping Station SP0187 to the Pumping Station. There was a junction in the 600 mm rising main, which is the point where it connected to a secondary 450/375 mm rising main capable of being used to pump wastewater to the Liverpool Water Recycling Plant (also known as the Liverpool STP). An Explanatory Schematic of SP0187 is at Appendix A to this Agreed Statement of Facts. In total, Sewage Pumping Station SP0187 contributed approximately 80% of flow into the Pumping Station.

15.   The Isolation Valve (Valve 2 in Appendix A) was a 450 mm gate/isolation valve (which was closed during normal operation) located on the secondary 450/375 mm rising main which led to the Liverpool Water Recycling Plant.

Prospect Creek and Carrawood Reserve

16.   The Pumping Station and Rising Main were located in the vicinity of Prospect Creek and Carrawood Reserve.

17.   Prospect Creek is a major tributary of Georges River and is a brackish creek, influenced by tides at Carramar, NSW. Prospect Creek is in a largely urbanised catchment area with residential and open spaces for recreation.

18.   Carrawood Reserve is managed by Fairfield City Council and includes Carrawood Oval, a playground and open space for the community. These structures are for purposes of environmental and heritage protection, recreation and sport, and open space. At the northern part of Carrawood Reserve are several residential properties.

DETAILED CHRONOLOGY

14 January 2019

19.   At 5:37 pm on Monday, 14 January 2019, Sydney Water received a report that an overflow had occurred at Quest Avenue, Carramar.

20.   At about 6:54 pm, a Sydney Water Network Technician attended the site and carried out an inspection. An overflow had occurred. Upon inspection, the overflow was traced to the Rising Main. At this time, the Network Technician installed advisory signage.

21.   At about 7:30 pm, Sydney Water declared the incident as a Part 1 Material Harm Incident.

22.   At about 7:35 pm, Sydney Water issued a job to its contractor, Ventia Pty Ltd (Ventia), to attend the site with a bypass pump and bypass tankering manifold and to investigate the operation of the Pumping Station.

23.   At about 8:10 pm, Sydney Water’s Networks Team Leader arrived at the site to carry out an assessment of the overflow incident.

24.   At about 8:27 pm, a Ventia technician arrived at the site to provide assistance and manually operate the Pumping Station.

25.   At about 8:30 pm, Sydney Water’s Customer Liaison Officer (CLO), Mr Otto Lupo, notified the EPA’s After-Hours Incident Response Duty Officer, Ms Tenille Lawrence‑Haskew, of the incident via Environment Line. The report received by Ms Lawrence- Haskew stated: “Significant sewerage incident declared, broken 600 mm Rising main At waterside Cres Carramar. NT on site signs erected Veolia engaged for tankers, Ventia enroute to set up bypass FST required.”

26.   At about 8:52 pm, Sydney Water’s Civil Field Crew confirmed that the sewage overflow had reached Prospect Creek. Sydney Water’s Civil Field Crew installed perimeter fencing around the affected area to prevent public access and requested additional sandbags to set up containment around the overflow location.

27.   At about 8:53 pm, Mr Lupo completed notification to five authorities, being the NSW EPA, NSW Fire & Rescue, NSW Health, WorkCover and Fairfield Local Council.

28.   At 8:56 pm, Ms Lawrence‑Haskew contacted Mr Lupo by telephone and had a conversation, which included an exchange to the following effect:

Mr Lupo:   “The location of the break is near pump station SP0213. There are crews onsite. I cannot confirm whether the main line has been shut off. At this stage, I am not sure if there is enough capacity within the pump station to curb the flow and to allow a bypass to be set up.”

Ms Lawrence‑Haskew:   “Can you please contact me directly and provide further updates as the Incident progresses?”

29.   At about 9:00 pm, the Sydney Water dispatcher started organising additional resources to attend the site, including tankers, an aerator, bypass pump/manifold, civil repairs crew, Sydney Water’s CLO, and Sydney Water’s Specialised Environmental Response Team (SERT) and Sydney Water’s Field Sampling and Testing Team (FST).

30.   At about 9:50 pm, a 14‑tonne excavator and one Veolia Environmental Services (Australia) Pty Ltd (Veolia) tanker arrived at the site. During the evening, the works undertaken by Sydney Water (or its contractors) to divert sewage and reduce the overflow included:

a.   Using the tanker on site to remove sewage from the surface in the vicinity of the split on the Rising Main to a sewer in a different sewerage catchment (being the catchment for Sewage Pumping Station SP0419).

b.   Using the excavator to create a channel and coffer dam around the location of the Rising Main to contain and direct the overflow to sewer manholes on a nearby 300 mm gravity main.

31.   At about 10:00 pm, Sydney Water started flushing the area affected by the sewage overflow with freshwater.

15 January 2019

32.   At 2:43 am on Tuesday 15 January 2019, EPA Officer, Tenille Lawrence‑Haskew had a conversation with Sydney Water Engineer, John McKeon, which included an exchange to the following effect:

Mr McKeon:   “Ventia, a Sydney Water Contractor, is onsite and has instated a bypass to tankers which has significantly reduced the flow. There are signs and barrier tape in place to deter access to the affected area. There is partial containment in place. Trenches have been dug in to curb the ongoing flow. A large area, approximately 50% of Coleman Park, as well as the public playing fields at Carrawood Oval, have been affected. The discharge is predominantly liquid and brown sludge. Prospect Creek is approximately 50 to 70m from the affected area.”

Ms Lawrence‑Haskew:   “Has any containment been installed and what type of containment controls do you have in place?”

Mr McKeon:   “We are unable to use water gates. There is no containment in Prospect Creek. Compressed air aerators will be deployed and FST are due onsite first thing in the morning. We have not yet sighted the breach. It will be necessary to bypass the pumping station in order to shut down the rising main. The rising main is pressurised and approximately 1km long. A repair to the line will require a full isolation of the pumps but there is a 2.4m gravity main to assist with backflow. More resources and more tankers are to be deployed. We anticipate a full bypass of the pump station between 7 am and 8 am.”

33.   At about 6:40 am, Ms Lawrence‑Haskew, arrived at the site. Shortly after arriving at the site, Ms Lawrence‑Haskew had a conversation with Mr Peter Rennex, Sydney Water Area Manager.

34.   Ms Lawrence‑Haskew then conducted an inspection of the area.

35.   By about 7:21 am, five tankers were present on site to remove sewage from the vicinity of the overflow to the sewer in a different sewage catchment.

36.   At about 7:30 am, Sydney Water’s Civil Field Crew reconstructed the coffer dam around the location of the Rising Main to allow better diversion of the sewage into sewer manholes on the nearby 300 mm gravity main.

37.   At about 7:33 am, Sydney Water’s Field Sampling and Testing (FST) team attended the site to carry out an environmental assessment. The FST team provided clean-up recommendations that included installing aerators upstream and downstream of the inflow point in Prospect Creek and arranging for a boom to hold up any surface debris and oil. Aerators and booms were subsequently installed in Prospect Creek by approximately 5.00 pm on 15 January 2019.

38.   At about 8:15 am, Mr Zane Ke, Sydney Water Engineer, sent Ventia contractors, Mr Luke Aquilina and Mr Joel Saad, to operate the Isolation Valve located near Sewage Pumping Station SP0187.

39.   At about 11:35 am, EPA Officers Aleesha Rodgers and George Orel, arrived at the site of the overflow and at about 11:40 am, they were taken by Mr Rennex and Mr Ke to a location where sewage had pooled in Carrawood Reserve. In this area, Ms Rodgers and Mr Orel observed the following:

a.   pooled liquid which was a turbid brown-grey colour extending east to west over a distance of about 175 metres, and south towards Prospect Creek;

b.   pressurised liquid flowing to the surface in one area, indicating the approximate location of the break in the Rising Main;

c.   sewage flowing towards the south on the outside of a constructed bund which did not appear to be effective;

d.   a moderate ambient sewage odour.

40.   At this time, Ms Rodgers and Mr Orel had a conversation with Mr Rennex, Mr Ke and other Sydney Water staff.

41.   Ms Rodgers and Mr Orel then continued their inspection of Carrawood Reserve and Prospect Creek and subsequently sampled the untreated sewage flowing overland at Carrawood Reserve and took water samples at various locations in Prospect Creek. During that inspection, Ms Rodgers and Mr Orel observed the following:

a.   brown-grey liquid sewage pooling within the oval and flowing down gradient, across a footpath toward Prospect Creek;

b.   a sewage odour varying in strength from slight to strong.

42.   At about 11:50 pm, Sydney Water took steps to shut down the Pumping Station and replace the broken section of the Rising Main. To replace the broken section of the Rising Main, Sydney Water was required to shut down the Pumping Station, drain the Rising Main and insert a plug in the end of the Rising Main to stop flows from the gravity main coming back down the Rising Main to the repair area. Sydney Water considered the risk that sewage would overflow from the Pumping Station while it was shutdown. Sydney Water arranged for tankers to be present to manage the level of sewage flowing into the wet well of the Pumping Station by removing it from the wet well and transferring it to an alternative location.

43.   There was an overflow from the Pumping Station into Prospect Creek. Sewage overflowed from the Pumping Station. The overflow from the Pumping Station ceased at 1:26 am on Wednesday, 16 January 2019 when the tankers were able to keep up with the inflow into the Pumping Station. Only two tankers were filled at any time.

16 January 2019

44.   At about 7:47 am, the repair of the Rising Main was complete.

OTHER MATTERS

Duration and estimated volume of the overflows

45.   Sydney Water has provided the following information in relation to the duration and estimated volume of the overflows:

Dates and Times	Location	Total duration	Volume of overflow
Between 5:37 pm on 14 January 2019 and 1:28 am on 16 January 2019	Rising Main	31 hours 51 minutes	318,000 litres
Between 11:59 pm on 15 January 2019 and 1:26 am on 16 January 2019	Pumping Station	1 hour 27 minutes	282,000 litres
Total	600,000 litres

46.   Dr Fleur Pablo, Senior Scientist, Environmental Forensics - Ecotoxicology, with the NSW Department of Planning, Industry & Environment, has identified a number of errors in the calculation by Sydney Water of the estimated volume of the overflows. Correcting for those errors, Dr Pablo has estimated the total volume of the overflows to be approximately 1.5 megalitres as follows:

Dates and Times	Location	Total duration	Volume of overflow
Between 5:37 pm on 14 January 2019 and 1:28 am on 16 January 2019	Rising Main	31 hours 51 minutes	821,000 litres
Between 11:59 pm on 15 January 2019 and 1:26 am on 16 January 2019	Pumping Station	1 hour 27 minutes	652,000 litres
Total	1,473,000 litres

Rainfall at the time of the overflows

47.   Sydney Water has provided rainfall records for the Fairfield Wastewater Treatment Plant (Gauge Number 567077) and Cabramatta Bowling Club (Gauge Number 567154) being the closest rainfall gauges to the Pumping Station and Rising Main. An extract from the rainfall records provided by Sydney Water is as follows:

567077	567154
Date	Total Rainfall (mm.)	Total Rainfall (mm.)
10/01/2019	0	0.5
11/01/2019	3	4.5
12/01/2019	6.5	6.5
13/01/2019	0	0
14/01/2019	0	0
15/01/2019	0	0
16/01/2019	0	0
17/01/2019	0	0

48.   According to the Bureau of Meteorology, the daily rainfall reported at its weather reporting site at Milperra Bridge (Georges River) was as follows:

Date	Total Rainfall (mm.)
10/01/2019	0
11/01/2019	0
12/01/2019	6.0
13/01/2019	0
14/01/2019	0
15/01/2019	0
16/01/2019	0
17/01/2019	0

Matters relevant to the overflow from the Rising Main between 14 and 16 January 2020

Cause of the Rising Main failure

49.   Sydney Water has stated that the Rising Main failed longitudinally along the bottom of the pipe due to erosion of the invert of the pipe. Sydney Water has obtained the following reports in relation to the possible root cause of the split in the Rising Main:

a.   In 2019, Sydney Water prepared a report titled: “Water Main/Pressure Sewer Pipe Inspection Report”, dated 22 January 2019.

b.   In February 2019, Philip Ferguson, of Pipeline Condition Assessment, prepared a report titled, “Failure Investigation SPS213 SRM - Preliminary Comments”, dated 4 February 2019.

c.   In July 2019, Philip Ferguson and Ronald Christian prepared a further report titled: “SPS0213 - DN600 CICL Failure Investigation Report”, dated 15 July 2019.

d.   In September 2019, Philip Ferguson and Ronald Christian prepared, and Tania Gonzalez reviewed, a further report titled: “SPS0213 - DN600 CICL Failure Investigation Report”, dated 12 September 2019.

e.   In November 2019, Philip Ferguson prepared a report titled: “Failure Investigation Final Report of SP213”, dated 15 November 2019.

f.   In December 2019, Philip Ferguson prepared, and Dr Matthew Tai reviewed, a report titled: “Failure Investigation Final Report of SP213”, dated 17 December 2019.

Previous conditions assessments relating to the Rising Main

50.   In March 2007, Sydney Water obtained a report titled: “Condition Assessment of SPS213 Sewer Rising Main for SWC”, dated 5 March 2007, prepared by Philip Ferguson, EarthTech.

Matters relevant to the overflow from the Pumping Station between 15 and 16 January 2020

Cause of the overflow from the Pumping Station

51.   Before the shutdown of the Pumping Station, Sydney Water considered the risk that sewage would overflow from the Pumping Station while it was shutdown. Sydney Water arranged for tankers to be present to manage the level of sewage flowing into the wet well of the Pumping Station by removing it from the wet well and transferring it to an alternative location. An overflow from the Pumping Station into Prospect Creek commenced, which occurred when the tankers were not able to keep up with the inflow into the Pumping Station. Only two tankers were filled at any time.

Matters relevant to the Isolation Valve

Reports relating to the Isolation Valve

52.   In October 2019, Ventia was engaged by Sydney Water to prepare a report titled: “Ventia Mechanical Report SPS0187 - Valve Preliminary Inspection”. The report related to the isolation valve (see par 15 above).

Maintenance schedule relating to the Rising Main

53.   Sydney Water has advised that the Isolation Valve was replaced on 12 September 2019.

Actual and potential harm to the environment

54.   The overflows that are the subject of proceedings 2020/11340 and 2020/11341 resulted in actual harm to the environment in the form of direct alteration of the chemical and biological characteristics of Prospect Creek waters.

55.   The direct alterations to the characteristics of Prospect Creek waters relative to background conditions were:

a.   increased density of indicator organism faecal coliforms exceeding the Australian and New Zealand Environment and Conservation Council (ANZECC) Australian Guidelines for Water Quality Monitoring and Reporting (2000) by up to 7,800 times;

b.   increased density of indicator organism enterococci exceeding background level by up to 1,120 times;

c.   increased levels of ammonia;

d.   reduced dissolved oxygen levels;

e.   observed sewage odour;

f.   observed turbidity and/or change in colour.

Appendix A

Sydney Water’s “not guilty” pleas

14. On 28 August 2020, Sydney Water entered pleas of “not guilty” to each of the charges. Although there is no dispute that the sewage discharges giving rise to the two “pollute waters” events did in fact take place, Sydney Water denies it is guilty of the breaches of the POEO Act as charged.

Relevant statutory provisions

Introduction

15. As earlier noted, the charges brought by the Prosecutor against Sydney Water are for alleged breaches of provisions of the POEO Act. The relevant provisions (excluding matters relating to the potential penalties as these are not relevant for this decision) are set out below.

16. It is to be noted that s 63 of the POEO Act addresses the attaching of conditions to environment protection licences. The interaction of this provision and elements of Sydney Water’s EPL requires later consideration in the context of the rising main charge.

63   Conditions

(1)   A licence may be issued subject to conditions or unconditionally.

(2)   A condition cannot be attached to a licence if compliance with the condition would result in a breach of a requirement made by or under this Act.

(3)   If the holder of a licence cannot meet any requirement made by or under this Act without contravening a condition of the licence, the holder is, by meeting the requirement, taken to comply with the condition.

The valve charge

17. The provision of the POEO Act, s 64(1), founding the valve charge (by virtue of the failure of the valve to be used to divert sewage from SP0187) is in the following terms:

64   Failure to comply with condition

(1)   Offence If any condition of a licence is contravened by any person, each holder of the licence is guilty of an offence.

The rising main charge and the pumping station charge

18. The rising main and pumping station charges allege breaches of s 120(1) of the POEO Act. This provision is in the following terms:

120   Prohibition of pollution of waters

(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.

19. The relevant element of the definition of “water pollution” or “pollute waters” is contained in the Dictionary to the POEO Act. It is in the following terms:

water pollution or pollution of waters means—

(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,

20. It is not disputed that the sewage from the breach in the rising main and from the overflow of the wet well from SP0187, when reaching Prospect Creek, caused pollution of that creek.

Sydney Water’s statutory defence to the rising main charge

21. The basis of Sydney Water’s primary defence to the rising main charge is founded on s 122(1) of the POEO Act. This provision is in the following terms:

122   Defence of authority conferred by protection of environment licence or forestry authorisation

(1)   It is a defence in proceedings against a person for an offence under this Part if the person establishes that—

(a)   the pollution was regulated by an environment protection licence held by the person or another person, and

(b)   the conditions to which that licence was subject relating to the pollution of waters were not contravened.

22. A further provision of the POEO Act to be noted is s 169C, the provision that potentially enables actions or statements made by an agent, employee or director of a corporation to be attributed to that corporation. As noted in (1) of the SOAF, Sydney Water is a statutory State‑owned corporation. The provision is in the following terms:

169C   Evidence as to state of mind of corporation

(1)   Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular state of mind, is evidence that the corporation had that state of mind.

(2)   In this section, the state of mind of a person includes—

(a)   the knowledge, intention, opinion, belief or purpose of the person, and

(b)   the person’s reasons for the intention, opinion, belief or purpose.

Sydney Water’s environment protection licence

Introduction

23. The POEO Act establishes a regime that enables potentially significantly polluting activities to be regulated by the issuing of an EPL to the individual or entity proposing to carry out the regulated activity. The elements of Sydney Water’s sewage disposal and treatment network covered by the matters giving rise to the three charges are all within the scope of Sydney Water’s EPL (EPL 372) (EPL).

24. The first two general elements of the EPL to be noted are set out in Part 1 of the EPL. These are in the following terms:

1   Administrative Conditions

A1   What the licence authorises and regulates

…

A1.4   The objectives of this licence are to:

(a)   require practical measures to be taken to protect the environment and public health from sewage treatment plant effluent and sewer overflows;

(b)   require proper and efficient management of the sewage treatment system to minimise harm to the environment and public health;

(c)   require no deterioration and continuing improvement in the sewage treatment system environmental performance relative to existing conditions; and

(d)   minimise the frequency and volume of overflows and sewage treatment plant bypasses.

A1.5   This licence is to be construed in a manner that will promote the objectives referred to in A1.4.

The valve charge

25. Relevant specifically to the valve charge, the EPL includes the following condition concerning the maintenance of its plant and equipment. That condition was in the following terms:

02.   Maintenance of plant and equipment.

02.1   All plant and equipment installed at the premises or used in connection with the licensed activity:

(a)   must be maintained in a proper and efficient condition; and

(b)   must be operated in a proper and efficient manner

The rising main and pumping station charges

26. The EPL contains Limit Conditions - those that are relevant to both the rising main and pumping station charges are elements of L1 Pollution of waters. These elements are L1.1, L1.2, L1.3 and L1.4. These are in the following terms:

3   Limit Conditions

L1   Pollution of waters

L1.1 Except as may be expressly provided in any other condition of this licence, the licensee must comply with section 120 of the Protection of the Environment Operations Act 1997.

L1.2   Subject to the conditions of the licence, sewage must not be discharged from the components of the reticulation system except from those components identified on the system map.

L1.3   Notwithstanding the provisions of the condition above, this licence does not permit the pollution of waters at any time during dry weather from:

a)   uncontrolled overflows, or

b)   directed overflows other than from sewage pumping stations,

if a cause of the pollution is failure to:

i)   operate any part of the reticulation system in a proper and efficient manner; or

ii)   maintain any part of the reticulation system in a proper and efficient condition.

L1.4   This licence does not permit the pollution of water at any time during dry weather from any pumping station. This condition is effective from 1 July 2006.

The rising main charge

27. One element of Sydney Water’s EPL requires consideration solely in the context of the rising main charge. This is in the following terms:

L7.4   Dry weather overflows limits.

The total number of dry weather overflows reaching waterways from the sewage treatment system, subject to this license must not exceed 122 in any reporting period.

28. Also relevant to the rising main charge are a number of definitions in the Special Dictionary in E1.1 of Part 9 Special Conditions of the EPL. The relevant definitions have been extracted and are set out below:

Term	Definition
directed overflow	Means a directed overflow structure within the reticulation system.
directed overflow structure	Means a designed structure (excluding access chambers) in the reticulation system which operates as a relief to allow sewage to discharge at a planned location or a sewage pumping station, but does not include a bypass from a sewage treatment plant.
dry weather	Dry weather occurs when less than 10 millimitres [sic]of rainfall has been measured at a rain gauge in the catchment of the sewage treatment system during a 24 hour period (where there is no rain gauge in the catchment, at the rain gauge closest to the centre of the catchment). Dry weather SPS discharge occurs when less than 10mm rainfall has been measured at a rain gauge in the catchment of the SPS during a 24 hour period (where there is no rain gauge in the catchment at the rain gauge closest to the SPS).
dry weather overflow	Means an overflow in the reticulation system not caused by wet weather, as determined by the hydraulic sewer system model.
overflow	Is a discharge of untreated or partially treated sewage from the sewage treatment system. Overflows may occur as directed overflows or uncontrolled overflows.
uncontrolled overflow	Means an overflow from any part of the reticulation system that is not a directed overflow. Leakage or overflows from access chambers are examples or uncontrolled overflows.
wet weather	Wet weather occurs when 10 millimetres or more of rainfall has been measured at a rain gauge in the catchment of the sewage treatment system during a 24 hour period (where there is no rain gauge in the catchment, at the rain gauge closest to the centre of the catchment).
wet weather overflow	Means an overflow in the reticulation system caused by wet weather as determined by the hydraulic sewer system model.

Representation

29. The Prosecutor was represented by Mr D Buchanan SC and Mr R Ranken and Ms S Constable, barristers. Sydney Water was represented by Mr I Hemmings SC and Ms S Hall, barrister.

The hearing

Introduction

30. As a consequence of the COVID‑19 pandemic, the hearing was conducted entirely by audio-visual link. There was no personal attendance in the courtroom during the course the hearing.

31. The trial was listed to be heard over a three-week period.

The general progress of the hearing

32. The first portion of the opening day of the trial was devoted to opening submissions on behalf of the Prosecutor and Sydney Water.

33. The afternoon of the first day of the hearing was devoted to ruling on objections, on behalf of Sydney Water, to elements of the Prosecutor’s documentary evidence. As a result of concessions made by the Prosecutor and by Sydney Water with respect to the objections set out in a schedule identifying each objection; the basis upon which the objection was raised; and the response of the Prosecutor to that objection (with rulings from me on the much more limited range of objections where an agreed position was unable to be reached), these objections were able to be resolved expeditiously.

34. The hearing then continued with Mr Hemmings cross‑examining those of the Prosecutor’s witnesses who had been nominated as required for this purpose. The cross‑examination of the Prosecutor's witnesses was conducted efficiently, resulting in the Prosecutor closing its case at the end of the first week for which the trial had been listed. The hearing was then adjourned until Tuesday of the following week.

35. When the hearing resumed, Mr Hemmings advised that Sydney Water did not propose to call any evidence in response to the pumping station charge. He also indicated that the only evidence upon which Sydney Water proposed to rely, in its defence of the valve and the rising main charges, was the affidavit of Mr David Holland, Sydney Water’s Head of Work Programming and Optimisation.

The parties’ closing submissions

36. For the purposes of closing addresses, comprehensive written submissions were provided to me on behalf of the Prosecutor and Sydney Water prior to the sixth day of the hearing. During the course of the final days of the hearing, the Prosecutor and Mr Hemmings each spoke to the terms of their written closing submissions.

37. These submissions, both written and oral, were divided into sections addressing each of the three charges. In each of the sections of this decision, I consider the relevant oral and written submissions concerning the charge addressed by that portion of my decision. Unless specific citation referencing either a portion of transcript or a paragraph of the relevant written submissions is necessary, my summary of the submissions with respect to each charge constitutes a distilled summary of the relevant written and oral submissions concerning that charge.

The evidence

Introduction

38. A significant volume of documentary material was provided electronically. Not all of this material was necessary to be tendered (or selected by Sydney Water for tendering) for the purposes of this phase of the proceedings against Sydney Water. During the course of the hearing, I was able to access documents to which the advocates were making reference and have them display on a secondary screen on the Bench. In addition, the commercial service which had been engaged for the purposes of preparation of the electronic materials provided an operator who was available throughout the hearing. The operator was able to access referenced documents and, using a screen‑sharing function, was able to pull up relevant extracts from documents identified by one of the advocates, so that those documents were visible to those attending the proceedings electronically (including to any witness who was being cross‑examined concerning the contents of documents relating to that person’s evidence).

39. It is to be observed that, in addition to the witnesses who were foreshadowed as being required for cross‑examination by one party or another, there was also other extensive evidentiary material provided electronically in the Court Book. As later noted (ignoring for present purposes objections to evidence), not all the electronic material was in fact tendered.

40. Although it is appropriate to reference, where necessary, other affidavit or documentary evidence which is potentially relevant and had been referred to in submissions (whether oral or written) by one or both of the parties, it has also been necessary to rely on the fact that the documentary material has been provided in searchable PDF format, as undertaking a word‑by‑word examination of all of the documents would have been an impossible task. Where relevant documents were referenced in submissions, I have considered the entirety of, or the relevant elements in, such documents in the context in which they were referenced.

Notes on terminology

41. For the purposes of understanding elements of the evidence and submissions that are addressed in this decision, it is appropriate to provide explanations of a number of terms or acronyms to which reference will be made. These are:

Invert	The invert of a pipe is the level of the bottom of the inside of the pipe
NDT	Non-destructive testing
NGRS	North Georges River sub-main
Obvert	The obvert of a pipe is the highest portion of its internal surface - that is, in common parlance, the top of the pipe.
WERF	Water Environment Research Foundation

The oral evidence

The Prosecutor’s witnesses

42. In addition to its documentary evidence, a number of the Prosecutor’s witnesses were notified as being required for cross‑examination (although not all notified were actually required for cross‑examination). Those witnesses and their roles were:

1. Mr Luke Aquilina, mechanical tradesman employed by Ventia Utility Services Pty Ltd (contracted to Sydney Water)

2. Mr Philip Ferguson, Technical Consultant, ADE Consulting Group

3. Ms Tracey Foster, former Network Teams Leader, Sydney Water

4. Mr Gary Hurley, Manager Networks, Sydney Water - Mr Hurley was not required for cross‑examination

5. Mr Zane Ke, Lead Network Operation Engineer, Sydney Water

6. Mr Michael Kelly, Maintenance Supervisor (formerly employed by Ventia Utility Services Pty Ltd (contracted to Sydney Water))

7. Dr Daniel Martens, Civil, Geotechnical and Environmental Engineer

8. Mr Stuart McDonald, Team Leader, Network Programs, Sydney Water

9. Mr Joel Saad, mechanical tradesman employed by Ventia Utility Services Pty Ltd (contracted to Sydney Water) - Mr Saad was not required for cross‑examination.

Sydney Water’s evidence

43. On 7 September 2021, after the close of the Prosecutor’s case, Mr Hemmings advised that Sydney Water did not propose to call any evidence in connection with the pumping station charge. With respect to the rising main and valve charges, Sydney Water proposed only to read the affidavit of Mr David Holland, Sydney Water’s Head of Work Programming and Optimisation. Mr Holland was required for cross‑examination.

44. Mr Holland had deposed an affidavit dated 19 August 2021, to which was appended a number of documents. The Prosecutor objected to three paragraphs of his affidavit and related appended documents relating to the Independent Pricing and Regulatory Tribunal. The objection was that this material was not relevant to any issue arising for determination concerning the valve and rising main charges. I upheld the objection, and this material was, therefore, rejected.

45. Mr Holland was required for cross‑examination. Mr Holland’s evidence and matters arising from his cross‑examination are later discussed.

46. The hearing then adjourned until two o'clock on the afternoon of the following Tuesday to permit the Prosecutor and Mr Hemmings to prepare their closing submissions.

The Prosecutor's written evidence

47. The Prosecutor tendered only portion of its electronically provided material for this phase of the proceedings. The relevant portions of the Court Book that were tendered were in Part A of the Prosecutor’s electronic files.

The Prosecutor’s application to reopen

Introduction

48. At the conclusion of the eighth day of the hearing (after the conclusion of Sydney Water’s closing submissions), the Prosecutor sought to reply on two matters of fact which had been raised for Sydney Water in closing. The application was made in reliance on s 160(2) of the Criminal Procedure Act 1986 (it is not necessary to set out the terms of this provision). This was not allowed by me.

49. The Prosecutor also foreshadowed an application to reopen on two points of law. Consideration of this application was stood over until the following day on the basis that the Prosecutor would provide Sydney Water with information concerning the matters about which the Prosecutor wished to address further.

50. The application was heard on the ninth day. I then heard submissions from the Prosecutor concerning what the Prosecutor submitted was the basis upon which I should conclude that the Prosecutor had the right to address further on questions of law.

51. Mr Hemmings submitted that there was no such right and that the Prosecutor should not be permitted to reopen the proceedings.

52. After hearing the submissions from the Prosecutor and Mr Hemmings, I explained (Transcript 17 September 2021, page 309, line 38 to page 310, line 9) why I was satisfied that there was no such right for the Prosecutor to do so, but I was satisfied that I did have a discretion to grant the Prosecutor leave to address, further, on matters of law (with the necessary corollary being that Mr Hemmings would be entitled to a right of reply to such matters raised).

53. At that point, I had not been advised of the nature of the matters which the Prosecutor sought to canvass, if the application to reopen to do so was successful. A copy of that which had been notified to Sydney Water’s legal representatives was then provided to me.

The reopening topics

54. In an e‑mail on 17 September 2021, the Prosecutor had advised Mr Hemmings of the detail of the two topics for which the Prosecutor proposed to seek leave to reopen. After addressing the issue of principle as to whether reopening was available (as discussed above), a copy of the e‑mail, which had been sent to Mr Hemmings, was forwarded to my Associate. The terms of the two matters (said to be matters of law) which the Prosecutor proposed to address were conveyed to Mr Hemmings (and subsequently relayed to me):

The two matters of law are:

1.   It was submitted for the Defendant to the effect that, via its employees, it held a belief it held a belief as to thelikelihood and timingof any failure of the Rising Main, and to the likely failure mechanism of the Rising Main (see end of para [176] of the defendant’s written closing submissions). This was said to prove the defence of Mistake of Fact in relation to the offence. It was submitted that the Defendant had a reasonable belief targeted to the specific subject-matter of the offence.

This erroneous as a matter of law. Section 122(1) provides an onus to prove the fact that no cause of the water pollution was a failure to maintain. That onus cannot be avoided by proving a belief in facts amounting to s 122(1) factors.

The reasonable belief has to be as to an element of the offence (Ostrowski v Palmer). Evidence as to a belief about s 122(1) factors is not evidence as to an element or the elements of the offence. There is no evidence capable of proving that SWC had a state of mind in relation to an element of the Rising Main offence as is required for the ‘defence’ of Mistake of Law.

2.   When addressing written submissions around [295]-[296] and [300]-[303], it was submitted for the Defendant to the effect that, in trying to operate the isolation valve, Mr Aquilina failed to operate the valve properly. It was submitted that it follows that what occurred was that there was a failure to operate the valve in a proper and efficient manner, not a failure (as charged) to maintain the valve in a proper and efficient condition.

Mr Aquilina did not have put to him failed to operate the valve properly. He was not given the opportunity to respond to the accusation that he failed to operate the valve properly. He has been denied procedural fairness. The Prosecutor has been denied procedural fairness in that it has been deprived of an opportunity to re‑examine Mr Aquilina on such a question. Denial of procedural fairness is jurisdictional error. The Court should not accept that submission.

55. As the submissions of the Prosecutor and Mr Hemmings on each of these matters were concise, it is appropriate to set out, in full, the oral submissions of each of them on each of the topics prior to my consideration of that topic.

56. In each instance, the Prosecutor took me to elements of matters from the transcript of Mr Hemmings’ closing oral submissions. It is not necessary to reproduce the extracts to which I was taken.

Topic 1 - reliance on the s 122 POEO Act defence

Introduction

57. As can be seen from what is set out above, the Prosecutor sought to address the reliance on the statutory defence provided by s 122 of the POEO Act, seeking to explain why, as a matter of law, that defence was not available.

The Prosecutor's submissions

58. The Prosecutor’s submissions were (Transcript 17 September 2021, page 312, line 36 to page 313, line 48):

PROSECUTOR: … As to the first matter, it arises, your Honour, from transcript p 279 line 9 going down to line 15 and‑‑

... You see the edit at line 9, your Honour, the words “Sydney Water held a belief”?

...

PROSECUTOR: This is from my friend’s address yesterday in relation to the light and failing - I don’t think he said “light”, but a failing mechanism for the rising main. And that belief was that

“The rising main could fail due to a combination of internal and external corrosion probably combined with the increase in pressure at pump at the start‑up or possibly combined with the water hammer effect. And Sydney Water further, reasonably believes that it would not be until approximately 2023 that the annual probability of failure would reach 10%.”

I could take your Honour, then to line 30. … “The Court would be satisfied, in our submission, that Sydney Water held a belief, it’s a reasonable belief, there’s no suggestion it was not honestly held, plainly it relates to matter of fact, not law and it’s relevantly targeted to the specific subject matter of the offence.” This is around the end of my learned friend’s written submissions at para 176 of his written submissions as well. In para 176, my learned friend says, “In these submissions…would reach 10 percent.” We submit, your Honour, as I conveyed to our learned friends last night, that the defendant had submitted to the effect that, via its employees, it held a belief as to the likelihood and timing of any failure of the rising main, and to the likely failure mechanism of the rising main.

This was said to prove the defensive mistake of fact in relation to the offence. It was submitted that the defendant had a reasonable belief targeted to the specific subject matter of the offence. We submit this is erroneous as a matter of law, via condition L 1.3 (ii), and s 122(1) of the EOPOA. The EOPOA provides an onus to establish the fact that no cause of the water pollution was a failure to maintain in a proper and efficient condition, that onus, your Honour, being a statutory onus, cannot be avoided by proving a belief in facts amounting to a s 122(1) factors. That is to say, to the extent that it does, the legislature has impinged upon the onus of proof, in relation to matters, by casting it, without qualification, upon the defendant to prove s 122(1) factors.

The second submission is that it's erroneous for a second reason, and that is that the reasonable belief has to be as to an element of the offence. Your Honour will recall that, at the very end, in the last page of our written submissions, we provided your Honour, we hope, with some assistance as to what the authorities have to say as to how to approach the defence of mistake of fact. One of the authorities was the High Court’s decision in Ostrowski v Palmer [2004] HCA 30, and at the passages there cited, your Honour, it's made plain that mistake of fact as a defence is available only when it is as to an element of the offence. We submit that evidence as to a belief about s 122(1) is not evidence as to an element, or the elements, of the offence.

Sydney Water’s response

59. Mr Hemmings’ submissions were - interruptions omitted (Transcript 17 September 2021, page 314, lines 8 to 32):

The evidence that was tendered and relied upon by my client was not evidence prepared for the purposes of proving a s 122 defence. One doesn't characterise the evidence, one considers the evidence, and then determines what purposes that evidence may be used for, and the evidence of the state of mind was capable, for reasons we've already submitted, of satisfying the s 122 defence, because we complied with the license requirement in L 1.3, and that is one basis for which that evidence could be used. The second basis for which that evidence can be used - and there's no doubt it can be used for multiple purposes - the second basis for which that evidence could be used is to demonstrate an honest and reasonable belief of a matter of fact that, if reasonably held, there would not have been the effects [which took place].

The offence is pollute waters. The pollute waters was caused by the crack of the rising main. They honestly and reasonably believed, on the evidence that we also rely on for the 122 defence, that that would not occur until at least 2023, where there was a 10 percent chance of it occurring. My friend might be dissatisfied with the evidence, and say - …. - that honestly and reasonably held belief, in relation to the state facts, if true, would have meant that there would not have been the pollution event, which obviously is the element of the offence. The fact that it’s relied upon for two different circumstances … means that the submission that they make, with respect, is plainly wrong.

Consideration

60. For reasons outlined in detail in the substantive sections of this decision dealing with the rising main charge, Sydney Water’s lack of guilt was sought to be established on the basis of two separate and unconnected defences.

61. The first was the statutory defence provided for by s 122 of the POEO Act. This defence was said by Sydney Water to be available via a path founded on what was submitted to be the correct interrelationship of Limit Conditions L1.3 and L7.4 of Sydney Water’s EPL. Properly understood, it was submitted, the effluent which reached Prospect Creek by travelling across Carrawood Reserve from the split in the rising main was authorised by the EPL as, at the time it occurred, Sydney Water had not reached the maximum number of dry weather (non‑pumping station‑sourced) effluent overflows permitted by the EPL in any accounting period.

62. This defence (which, for reasons I later explain, has been made out) is not based on any mistake of law in the fashion raised by the Prosecutor during the submissions on Topic 1, after leave was granted to reopen.

63. The second, separate basis upon which Sydney Water founds its “not guilty” plea to the rising main defence is a Proudman v Dayman defence (Proudman v Dayman (1941) 67 CLR 536 - Proudman v Dayman) of an honest and reasonably held mistake of fact as the exculpatory basis.

64. In my later consideration of this separate defence (where I explain how Sydney Water has established that the various factors described by Pepper J in Environment Protection Authority v Unomedical Pty Limited (No 3) (2010) 79 NSWLR 236; [2010] NSWLEC 198 (Unomedical (No 3)), at [262], have been satisfied by Sydney Water and thus provide a foundation for this second defence), this required a purely factual analysis, not one which involved any questions of law, as here proposed by the Prosecutor during its post reopening submissions. Indeed, as can later be seen, if any issue of a mistaken understanding of the law arose during consideration of a defence based on “honest and reasonably held mistake of fact” did arise, that automatically rendered that potential defence unavailable.

65. As a consequence, there is nothing arising out of Topic 1 pressed by the Prosecutor after reopening that requires further separate consideration.

Topic 2 - Sydney Water’s “wrong offence” defence to the valve charge

Introduction

66. The Prosecutor focuses, as can be seen from the summary of Topic 2 set out in the e‑mail to Mr Hemmings, on criticism of Mr Hemmings’ cross‑examination of Mr Aquilina and what the Prosecutor says are critical omissions from that questioning.

The Prosecutor's submissions

67. The Prosecutor’s submissions were (Transcript 17 September 2021, page 314, line 36 to page 315, line 25):

PROSECUTOR: The transcript references, in yesterday's transcript - if I could ask the operator again to pull up the transcript for yesterday, please, and go to p 291. Could you focus on the bottom half of the page, please, so that we can see line 30. Thank you. So the submission was made commencing, “So the prosecutor…error by Aquilina.” I suspect that the word that my friend used was “unable”, but he will have a better idea than I do.

…

PROSECUTOR: But it's the first reference to operator error by Aquilina, that's the context, your Honour. Operator, could we please go to p 293, top half of the page. Thank you. In the second paragraph, the second sentence: “In our submission…operator error only.” Then p 295 please, operator, top half of the page again, please. The first paragraph, line five, “and so the…by Mr Aquilina.” Those are the passages which give rise to our application, in this regard, your Honour, and our submission, as conveyed to our learned friends last night: When addressing those submissions, it was submitted for the defendant to the effect that in trying to operate the isolation valve, Mr Aquilina failed to operate the valve properly. It was submitted that it follows that what occurred was that there was a failure to operate the valve in a proper and efficient manner. Not a failure as charged to maintain the valve in a proper and efficient condition. Mr Aquilina did not have put to him that he failed to operate the valve properly.

He was not given the opportunity to respond to the accusation that he failed to operate the valve properly. We submit that he has been denied procedural fairness. Your Honour would be aware that witnesses can be denied procedural fairness as much as parties can. But in addition, we submit that the prosecutor has been denied procedural fairness in that it has been deprived of an opportunity to re examine Mr Aquilina on such a question, and the denial of procedural fairness is jurisdictional error, and your Honour should not fall into that error by accepting that submission.

Sydney Water’s response

68. Mr Hemmings’ submissions were (Transcript 17 September 2021, page 315, line 29 to page 316, line 30):

HEMMINGS: Your Honour will recall the framing of the question by Mr Buchanan is the starting point of the, with respect, error in the submission, and that is Mr Aquilina failed to operate the valve properly. And in the second paragraph, Mr Aquilina did not have put to him that he failed to operate the valve properly. I’ve done a search both of transcript and written submissions, and no suggestion was ever made about a proper or an improper operation, because it’s not the point. The Court will recall the transcript that I took the Court to yesterday, from the cross‑examination of Mr Aquilina. It’s at p 292. There’s the two extracts there:

“Q. So, there were two valves and the two different covers and the overgrown grass.

A. Yeah.

Q. You haven’t worked in either of them in the past before.

A. No.

Q. Did you find the covers when you went to the site.

A. Yeah.

Q. Mr Aquilina, it’s correct, is it not, you found two covers.

A. Yes.

Q. You opened both covers?

A. Yes.

Q. Did you try and operate those valves?

A. Yes.

Q. When you tried to operate both valves, both of them failed to operate, and they were spinning freely.

A. That’s correct.”

There is no rule of fairness or otherwise in the prosecutor’s case, which is this evidence is to demonstrate that the valves were broken, and I asked him plainly and clearly, was he able to operate. No rule of fairness required to then ask another question, which is apparently the suggestion, and to say, “And when you tried to operate both valves, both of them failed to operate, because you couldn’t operate them,” there’s no requirement for me to do that. And if there was any unfairness, any uncertainty that was left over, had the opportunity to re‑examine, to say, “I’m confused by your questions, Mr Aquilina. When you said both of them failed to operate and they were spinning freely, why was that?”

This rule that my friend relies upon is one of fairness, and there is nothing unfair about the questions that we asked, the answers that we elicited, especially when the prosecutor was plainly on notice because of their own evidence that they had put on by Mr Kelly, that the valves were in fact working condition when Mr Kelly removed them. The fact that they now regret that they didn’t ask questions in re‑examination, or ask something in chief to clarify what his affidavit meant, doesn’t lead to any unfairness, either to Mr Aquilina or to the prosecutor.

Consideration

69. As can be seen from my subsequent detailed consideration of Sydney Water’s defence to the valve charge, successful advancing of the defence was not predicated upon me reaching the conclusion that Sydney Water had positively proved that Mr Aquilina had failed to operate the valve correctly.

70. Sydney Water’s defence, for reasons I have later explained, is clearly based on the proposition (founded on cumulative consideration of the evidence of Mr Aquilina, Mr Saad and Mr Kelly) that the Prosecutor has not proved beyond reasonable doubt that the failure by Mr Aquilina to operate the valve, as directed by Mr Ke, could not have been as a result of Mr Aquilina's failure to operate the valve to achieve the desired diversion of effluent to the Liverpool Treatment Plant.

71. The burden of proof clearly falls on the Prosecutor to prove this charge against Sydney Water beyond reasonable doubt. Sydney Water’s defence, founded on the evidence of Mr Aquilina and Mr Saad, as to the valve key “spinning freely”, when considered in conjunction with the evidence of Mr Kelly as to the operability of the valve when removed, means that the Prosecutor has not excluded the possibility of operator error, thus resulting in the Prosecutor not proving its case on this charge to the standard of proof required.

72. As a consequence of this apparent misunderstanding or misconsideration of the basis upon which Sydney Water has founded its defence to the valve charge, I am satisfied that Mr Hemmings’ cross‑examination of Mr Aquilina was not defective in the fashion raised by the Prosecutor in the fashion pressed after leave to reopen was granted. The alleged defects in cross‑examination are not, in fact, defects in the fashion now raised. As the necessary further consequence, for the reasons later discussed in detail by me concerning the valve offence, I am satisfied that, on a proper understanding of the facts, the Prosecutor has not demonstrated Sydney Water’s guilt of a breach of condition O2.1(a) of Sydney Water’s EPL.

Conclusion on reopening application matters

73. For the reasons explained above, nothing arises from the matters relating from the Prosecutor’s matters raised, after leave to reopen was granted, that require separate or additional consideration from those matters arising from the primary evidence and submissions.

The Bartter Enterprises decisions

Introduction

74. On 2 March 2022, the Court of Criminal Appeal handed down its decision in Bartter Enterprises Pty Ltd v Environment Protection Authority [2022] NSWCCA 43 (Bartter CCA). The appeal was against the decision of Duggan J in Environment Protection Authority v Bartter Enterprises Pty Ltd (No 3) [2020] NSWLEC 114 (Bartter (No 3)) where, at first instance, her Honour had convicted Bartter Enterprises of a breach of s 64(1) of the POEO Act by virtue of a breach of a condition of Bartter Enterprises’ environment protection licence, with that condition being in the following terms:

O2   Maintenance of plant and equipment

O2.1   All plant and equipment installed at the premises or used in connection with the licensed activity:

a)   must be maintained in a proper and efficient condition; and

b)   must be operated in a proper and efficient manner.

75. As can be seen, the environment protection licence condition in the Bartter Enterprises proceedings is in the same terms as condition O2.1 of Sydney Water’s EPL (earlier reproduced).

76. In light of the fact that her Honour's decision in Bartter (No 3) had been cited during the course of submissions on behalf of Sydney Water during the trial (including the submission that Duggan J “was clearly wrong”), I felt it appropriate to provide the parties the opportunity to make submissions on what relevance, if any, the decision of the Court of Criminal Appeal in Bartter CCA had for the purposes of my consideration of the charges against Sydney Water. I had my Associate contact the parties concerning this and, as a result, the parties agreed on a timetable that would permit, first, the Prosecutor to make short written submissions concerning the decision in Bartter CCA, with Sydney Water having an opportunity to respond to those submissions. Both the Prosecutor and Sydney Water provided submissions concerning the decision of the Court of Criminal Appeal and, to the extent necessary, they are addressed below in the context of both the rising main and the valve charges.

77. The Prosecutor submitted that the decision in Bartter CCA is relevant to both the valve offence and the rising main offence in these proceedings.

78. For Sydney Water, the position is advanced that Bartter CCA has little to no relevance for the rising main offence (given the difference in wording between the Bartter Enterprises proceedings condition O2.1 and Limit Condition L1.3 in these proceedings for the rising main offence) and that, although the Bartter proceedings’ condition and the condition engaged here for the valve offence proceedings are in identical terms, the relevant factual circumstances are different so that the decision in Bartter CCA is not relevant for my consideration of the valve offence charge.

79. Part of the argument in Bartter (No 3) was whether the equipment (known as the southern circuit) from which a piece had been removed and not refitted should be regarded as a single integrated piece of equipment or as a series of individual pipes and valves, each of which was to be regarded separately as an item of plant and equipment. On the basis of the latter proposition, Bartter Enterprises had submitted that the failure to reinstall the existing element whose absence had led to the escape of the ammonia did not give rise to the availability of a charge of failing to maintain the plant because there was no defect in any of the elements of the plant that remained installed at the time of the escape of the ammonia.

515. It is, however, appropriate to record question and answer 308 and 311 to 313. These were in the following terms:

Q. 308 Okay. In relation to your role at the pumping station during the flow isolation and pump removal process were you provided with any information that related to any concerns about the risk of overflow from the pumping station during the operation.

A. I was aware there was a risk. Detailed. I wasn't involved. I was purely making sure that the continuation of the repairs and containment.

and

Q. 311 During your involvement in the presence of the pumping station did you make any or were you required to undertake any inspections of the condition of the pumping station - - -

A No.

Q. 312 - - - or adjoining assets?

A. No.

Q. 313 As provided with the introduction, the EPA understands that there is a second overflow that's occurred in response to - during the, the operation of removing the pipe that occurred from the pumping station, are you aware or have knowledge of that overflow?

A. No.

517. It is to be observed that what followed from the above questions and answers was also potentially relating to a pumping station to which the tankers were transporting sewage and discharging it at that pumping station. The officers of the Prosecutor undertaking the questioning of Ms Foster at this point simply refer to “the pumping station” without distinguishing between the pumping station at the site which had overflowed into Prospect Creek and the pumping station to which the tanker-carried sewage was being transported. However, it is clear that, by question and answer 341, those interviewing Ms Foster returned to questioning about the pumping station at the site - having, at some earlier point not able to be discerned from the transcript, stopped questioning about that pumping station and having asked questions about a pumping station at Fairfield. Nothing relevant arises from this transcript portion, however.

518. Finally, it is appropriate to note that, at question and answer 364 to 368, the transcript makes it clear that Ms Foster had attended the pumping station at the site and a pumping station at Fairfield but that she was not aware of any further overflow that had occurred during the time of the response to the incident (question and answer 368).

519. Ms Foster was required for cross‑examination, a cross‑examination which took place on 31 August 2021. The cross‑examination was comparatively brief. The only relevant portion (Transcript 31 August 2021, page 66, line 44 to page 67, line 8) confirmed that, on the night of the incident, it was her role to manage Sydney Water’s response at the site.

520. The final member of Sydney Water’s staff cited in the above extract from Sydney Water’s written closing submission is Mr Gary Hurley, Manager Networks. Mr Hurley was interviewed by two officers of the Prosecutor (Ms Jones and Mr Rutherford) on 28 November 2019. A copy of the transcript of his record of interview is in evidence at Document A23.091. Although Mr Hurley was on the list of those proposed to give oral evidence, Mr Hurley was not required by Mr Hemmings for cross‑examination.

521. I have carefully read the entirety of the transcript of Mr Hurley's interview by the two officers of the Prosecutor.

522. Mr Hurley was questioned concerning his role at the site (question and answer 43):

Q. 43 Upon receiving that information, did you instruct any further or assist any further response to the incident for Sydney Water?

A. It would have only been to initiate the declaration of an incident and the establishment of a team, but that's again a - a very routine activity. In terms of taking direct line control of the response, no.

523. Mr Hurley was questioned concerning his knowledge of the site (questions and answers 59 to 62):

MR RUTHERFORD:

Q. 59 I understand, Gary, that you previously said that you were aware of the site - - -

A Yeah.

Q. 60 - - - (indistinct).

MS JONES:

Q. 61 Yeah.

A. Yep.

Q. 62 Yes. Yep.

A. So yeah I under - I know the location of the site, I know it' s - the location, I know - I've tracked around where the flow had been. It was quite evident where the flow had been, which you've got labelled here. I understand that it' s a pumping station. It' s a - it - which drains the local catchment area. And I know that that's a - quite a degraded waterway. And I'm not saying that as a pejorative. It's just that it's a quite tidally locked location and it's quite an urbanised environment. So I know - yeah, I know - true, I've walked around this site on a number of occasions.

524. However, Mr Hurley expressly stated that he had had no role in decision‑making concerning operational matters at the site during the incident (questions and answers 98 and 99):

Q. 98 Did you provide instructions or directions on the day that you were there, to people on the site, in relation to - - -

A Not - no.

Q. 99 - - - the incident?

A. No.

525. Mr Hurley is quoted in Sydney Water’s written closing submissions at paragraph 206(c). The quotation in the written submissions is in the following terms:

‘the whole objective of the entire approach was to minimise the environmental impacts’ and that the rising main replacement needed to occur ‘within as short a window as possible’

526. The entirety of what is reproduced in that paragraph as a quotation and footnoted as being extracted from his record of interview at page 17 does not actually reflect what he said, commencing with the answer to question 109 and concluding with the answer to question 112. Elements from the answers to questions 110 and 112 have been conflated and not identified in their appropriate contexts. The relevant passage from his record of interview (on page 17 of that document) is set out below:

Q. 109 Mm hmm. Were any further measures put in place?

A. In terms of?

Q. 110 To mitigate harm.

A. Again, the whole - whole objective of the entire approach was to minimise the environmental impacts. The root cause of that was a - a flow of wastewater into the environment. So the whole plan was predicated on minimising the volume - total volume of wastewater that flowed to the environment. So there were a number of actions put in place.

Q. 111 Can you - have you already described those or is there anything additional?

A. Yeah, at what phase?

Q. 112 At the pumping station in - during the replacement of the pipe.

A. During the replacement of the pipe, it would have been - there was a need to go and isolate the inflow - incoming flows into the station. There was a need to arrange tankering (as said) to supplement the function of the pumping station, and then to actually get in and get the pipe - the defective pipe out and replaced with - within as short a window as possible. Whilst maintaining the safety of the crews.

527. Reading these passages in their entirety demonstrates a somewhat different contextual analysis being expressed by Mr Hurley at that time.

528. At questions and answers 120 and 121, Mr Hurley reconfirmed clearly that he had no direct decision‑making role concerning activities on the site.

529. It is to be observed that, in his answer to question 128, Mr Hurley said that the safety of the staff would have been paramount. However, as this was an observation made after the event and in circumstances where Mr Hurley had no direct line responsibility for managing the site during the incident, I disregard the observation.

530. For completeness, it is to be noted that paragraph 209 earlier quoted (extract from Sydney Water’s written closing submissions) footnotes Sydney Water’s response to a notice given by the Prosecutor pursuant to s 193 of the POEO Act (Document A23.004). It is appropriate to set out the relevant elements of that response document (at pages 8 and 9). They were in the following terms:

15.    Sydney Water’s response to question 12 of the initial notice states that "by doing the work during the low flow periods of late night, Sydney Water considered that this would minimise the overall volume of wastewater flow released and therefore would minimise the impact on the wider environment'. Was it Sydney Water’s assessment that the pumping station would release wastewater flow (overflow) during the replacement of the failed section of rising main?

Yes, Sydney Water’s assessment was that there would be a partial overflow if the inflow and draining of the rising main was occurring and exceeded tankering capacity during the shut down period.

a.   If the answer is 'yes' to question 15, explain how this conclusion was reached.

It was determined that the pumping station may overflow during the replacement of the failed section due to:

•   The pumping station had a theoretical detention time less than 1 hour, calculated based on filling the wet well under the peak dry weather flow rate (PWDF) from Above Top Water Level (ATWL) to overflow.

•   However for tankers to operate, the wet well was required to operate at a higher level to provide sufficient suction pressure to allow removal of wastewater into the tankers. This meant the detention time before overflow would occur was reduced.

•   For the rising main to be repaired , it needed to be drained of the remaining wastewater stored in side of it, and this was drained back to the wet well/pumping station. This further increased the inflow for the duration the draining occurred.

b.   Provide the name and contact details of the person/s who made this assessment.

Peter Rennex - Sydney Water (Area Manager West) - Site Manager - Ph 8763 8609

John McKeon - Sydney Water (Operator West) - Operating Systems Expert - Ph 8763 8612

John Daoud - Sydney Water (Delivery Manager) - Site Project Manager - Ph 9644 0156

c.   Provide all documents related to the planning for isolation of the pumping station including contingency measures for managing the release of wastewater flow, but not limited to notes, worksheets, memos, risk assessments.

Due to the emergency nature of the works, the only records that exist from the isolation are the Flow Management Plan (FIFM) which can be found in the Appendix as Document 19. This and the site risk assessment was carried out verbally between all the relevant stakeholders including the Network Area Team, Network Services, Construction Contractor (Interflow) and Field Supervisors. They evaluated the options available to protect the environment, ensure safety and repair the broken rising main. This was done referring to the pumping station contingency plans.

Due to safety concerns, flow volumes and direction of flow, it was agreed to cut into the broken rising main once the downstream carrier was traversed during a low flow period. A plug was inserted in the rising main of the pump station once it was determined to be safe. This would prevent any backflow to the station and allow the repair work to be undertaken on the rising main. During this period, several measures were put in place to minimise material harm:

•   Tankers and pumps to transfer wastewater to tankers were being used to remove wastewater from the wet well and transport it into discharge points in other sewage catchments

•   Interflow assisted Ventia by installing a manifold on the rising main connection points to allow for easier tankering operations.

•   Booms were installed around the pumping station overflow point to contain any discharge of solids in the creek should an overflow occur.

Due to the reactive nature and urgency of this work, this information was drawn on site and action taken immediately.

531. As can be seen from the above set out evidentiary extracts relating to decision making on the site during the incident (responding to all the references in Sydney Water’s detailed written closing submissions concerning the doctrine of necessity as a foundational defence to the pumping station charge), there is no evidence that any of those Sydney Water employees (having any authority or control of any activities on the site during the course of Sydney Water’s response to the incident) have expressed any opinion supporting the proposition that a reason, let alone the dominant or sole reason, for shutting the pumping station down, in circumstances where an overflow to Prospect Creek would be the necessary consequence, was to avoid immediate and irreparable harm to human health or life.

532. Equally, there is nothing that necessarily infers that such a belief was held by any of those nominated by Sydney Water’s submissions as potentially having a decision‑making role on the site that might have encompassed a decision to shut down the pumping station.

533. Although it can be concluded that there may have been some health risk arising from possible recreational use of Prospect Creek as a consequence of the discharge of large volumes of raw sewage into that water body (whether that volume was as proposed by Sydney Water or as proposed by the Prosecutor being irrelevant, in my assessment), the first step in “the defence of necessity” is not an objective one, as noted by Gleeson CJ at the end of the second paragraph earlier quoted from Rogers - there must be an identified belief held by an individual (here needing to be a belief attributable to Sydney Water pursuant to s 169C of the POEO Act) where that belief was held in a fashion satisfying the first of the propositions derived from Loughnan.

534. None of the evidence from those actually or potentially having control or authority at the site during the course of the response to the incident discloses any such belief being held as a basis for shutting down the pumping station.

535. For this reason, there is no available foundation upon which to conclude that the first of the necessary prerequisites derived from the decision in Loughnan is satisfied. “The defence of necessity” is, therefore, not available to Sydney Water.

536. It follows that Sydney Water is to be found guilty of the pumping station charge and convicted of the second “pollute waters” charges laid pursuant to s 120(1) of the POEO Act.

Conclusions

introduction

537. I have concluded Sydney Water should be found not guilty with respect to two of the three charges and guilty of one of them. My reasons for so concluding on each charge are summarised below.

The valve charge

538. With respect to the valve charge, I have concluded that, on the facts, the Prosecutor has not proved beyond reasonable doubt that the failure of Mr Aquilina to operate the valve and enable the diversion of the sewage stream from SP0187 to the Liverpool Treatment Plant arose from a defect in the valve equipment rather than from operator error. This is a conclusion based on a proper consideration of the facts and, in my view, does not involve any issues of legal principle.

539. The appropriate outcome for this charge is that Sydney Water is to be found not guilty and acquitted.

The pumping station charge

540. With respect to the pumping station charge, I have concluded that Sydney Water has not established, on the balance of probabilities, that the evidence discloses that there was any relevantly responsible person who held a belief on any basis that there was a real and imminent risk of serious harm to human health or life as a consequence of the volume of untreated sewage discharged into Prospect Creek. The existence of such a belief as a basis for taking action which caused the pumping station to discharge raw sewage into Prospect Creek was the necessary first requirement to establish a defence of necessity on the balance of probabilities.

541. As the first of the three necessary prerequisites for activation of this defence has not been established, shifting the burden to the Prosecutor to explain why, beyond reasonable doubt, the defence was not available does not arise.

542. As a consequence, although the Prosecutor did not question whether “the defence of necessity” was available to Sydney Water, this defence has not been established on the balance of probabilities. This is a conclusion based on a proper consideration of the facts as explained earlier in detail and does not involve any novel or expansionary issues of legal principle - it is a conclusion based on settled and binding authority.

543. The appropriate outcome for this charge is that Sydney Water must be found guilty and convicted of the second “pollute waters” offence.

The rising main charge

544. With respect to the rising main charge, I am satisfied that, on the basis of a proper consideration of a combination of the factual circumstances of the failure of the rising main by the splitting of the pipe on its invert, when properly viewed on the basis of the relevant provisions of Sydney Water’s EPL, the discharge of the sewage from this event was permitted by the EPL as it fell within one of the 122 dry weather events permitted by the combined operation of conditions L1.3 and L7.4 of the EPL - thus enabling Sydney Water to rely on the statutory defence provided for in s 122 of the POEO Act. Because this is a conclusion based on my consideration of the facts, but also involves issues of legal principle, I am persuaded that finalisation of the outcome in Matter No 11340 of 2020 should be deferred to permit the Prosecutor to consider my reasons. These proceedings will not be finalised today by orders effecting Sydney Water’s acquittal of this charge.

545. If I am wrong in my conclusion that Sydney Water has available, and has established, the statutory defence provided for in s 122 of the POEO Act, I am separately satisfied that Sydney Water has also established, on the balance of probabilities, the defence of “honest and reasonable mistake of fact” and that the Prosecutor has not established, beyond reasonable doubt, that this defence lacks foundation.

546. There are, therefore, two separate bases upon which it is appropriate to acquit Sydney Water of the rising main offence.

The Prosecutor’s adjournment application

Introduction

547. During the course of the hearing, the Prosecutor requested that, if I was to conclude that Sydney Water was not to be convicted of any (or all) of the charges, that I publish my reasons for that conclusion prior to entering any formal orders for acquittal. If I was to so conclude, the Prosecutor wished to have time to consider any potential courses which it might conclude were available to it in light of my reasons for reaching the “not guilty” conclusion with respect to the relevant charge(s).

548. I have concluded that the appropriate finding is “not guilty” with respect to two of the three charges made against Sydney Water. One of those findings (concerning the valve charge) arises as a result of my conclusion that the Prosecutor has not satisfied the onus of proof on the Prosecutor by proving, beyond reasonable doubt, all factual elements of that offence.

549. The appropriate course, therefore, with respect to this charge, is to find Sydney Water “not guilty” and to enter an acquittal on it. I have reached this conclusion based on my understanding of the limited range of matters capable of being referred to the Court of Criminal Appeal on a stated case pursuant to s 5AE(1) of the Criminal Appeal Act 1912 (see Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220, at [31] to [74], per Bathurst CJ and Bell P).

550. With respect to the pumping station charge, I propose to proceed to convict Sydney Water today and list this matter on Tuesday 6 September 2022 for setting dates for, and a timetable leading up to, a sentencing hearing.

551. However, I am satisfied that the appropriate course to take concerning the rising main charge (Matter No 11340 of 2020) is for me to publish my reasons for reaching my conclusions concerning this charge and to adjourn those proceedings for a sufficient period to enable the Prosecutor to consider whether it wishes to make any application with respect to my reasons for concluding that Sydney Water was not guilty of that charge and should be acquitted of it.

552. As there is no prejudice to Sydney Water in me allowing a reasonable time for that consideration by the Prosecutor, I will adjourn further consideration of that matter on the basis that it will be mentioned before me at 8.30 am on Tuesday 6 September 2022.

547. Should the Prosecutor advise my Associate prior to the close of business on Friday 2 September 2022 that the Prosecutor did not wish to propose that I state a case to the Court of Criminal Appeal in that matter, I will make orders finding Sydney Water “not guilty” of the rising main charge and enter an acquittal in that matter. However, if the Prosecutor does propose that I state a case to the Court of Criminal Appeal, the Prosecutor is to file and serve a copy of any proposed questions by the close of business on Friday 2 September 2022.

Directions

554. I make the following directions:

1. Matter No 11340 of 2020 is adjourned until 8.30 am on Tuesday 6 September 2022 before me; and

2. If the Prosecutor advises my Associate prior to the close of business on Friday 2 September 2022 that the Prosecutor does not wish to propose I state a case to the Court of Criminal Appeal pursuant to s 5AE of the Criminal Appeal Act 1912, I will make orders in chambers finding Sydney Water "not guilty" and enter a verdict acquitting Sydney Water in this matter. I will also vacate the mention on 6 September 2022; and

3. If the Prosecutor does propose that I state a case to the Court of Criminal Appeal, the Prosecutor is to file and serve a copy of any proposed question(s) by the close of business on Friday 2 September 2022.

Orders

555. In Matter No 11341 of 2020, the orders of the Court are:

1. Sydney Water Corporation (the Defendant) is guilty of a breach of s 120(1) of the Protection of the Environment Operations Act 1997 by polluting waters at or near sewage pumping station SP0213 at Carramar between about 15 and 16 January 2019;

2. The Defendant is convicted;

3. Costs are reserved; and

4. The matter is adjourned until 8.30 am on Tuesday 6 September 2022 for setting dates for, and a timetable leading up to, a sentencing hearing.

556. In Matter No 11342 of 2020, the orders of the Court are:

1. Sydney Water Corporation (the Defendant) is not guilty of a breach of s 64(1) of the Protection of the Environment Operations Act 1997 by failing to maintain an isolation valve at or near sewage pumping station SP0187 at Cabramatta contrary to the requirement of condition O2.1(a) of Environment Protection Licence 372 held by the Defendant;

2. The Defendant is acquitted; and

3. Costs are reserved.

**********

ADDENDUM

Finalisation of the rising main charge

As can be seen from [551] above, finalisation of the rising main charge was deferred to permit the Prosecutor to consider whether or not it was proposed that I should submit a stated case to the Court of Criminal Appeal pursuant to s 5AE of the Criminal Appeal Act 1912. The Prosecutor was directed to advise me, by the close of business on Friday 2 September 2022, if the Prosecutor wished to pursue this course. On 2 September, the Prosecutor advised that it did not propose to seek to have me state a case to the Court of Criminal Appeal and requested that I finalise Matter No 11340 of 2020 (the rising main charge) by making orders finding Sydney Water “not guilty” and entering an acquittal on that charge.

As requested, I made those orders and caused them to be entered on 6 September 2022, reserving the question of costs in that matter.

**********

Amendments

07 September 2022 - Moore J was no longer required to state a case to the Court of Criminal Appeal.

On that basis, Matter No 11340 of 2020 (the rising main charge) is finalised by the making of orders finding Sydney Water “not guilty” and being acquitted on that charge.

Decision last updated: 07 September 2022