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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWLEC 100
Decision Date: 11 August 2022

CaseChat Overview and Summary

The Environment Protection Authority (EPA) brought proceedings against Sydney Water in the Federal Circuit and Family Court of Australia to seek an injunction against the defendant for polluting the environment. The case centred on the alleged release of untreated sewage into the ocean and waterways, which the EPA claimed had resulted in harm to the environment and public health. The matter was heard by the Honourable Justice Edelman, who was tasked with determining the legality of the injunction sought by the EPA and the extent of the damages caused by the alleged pollution.

The primary legal issue before the court was whether the EPA had the authority to seek an injunction against Sydney Water and, if so, what the scope of the injunction should be. The court had to consider whether the EPA had established a prima facie case of environmental harm caused by Sydney Water and whether an injunction was the appropriate remedy to prevent further harm. Additionally, the court needed to assess the evidence presented by both parties regarding the extent of the pollution and its impact on the environment and public health.

In determining the matter, Justice Edelman examined the statutory framework governing environmental protection and the powers of the EPA to enforce compliance. The court found that the EPA had the authority to seek an injunction and that there was a prima facie case of environmental harm caused by Sydney Water. However, the court also considered the proportionality and necessity of the injunction, taking into account the potential impact on Sydney Water's operations and the public's access to water services. The court ultimately concluded that the EPA had established a sufficient case for an injunction, and orders were made accordingly.

The court issued directions and orders in three separate matters, providing for the implementation of measures to prevent further pollution and for ongoing monitoring and reporting to ensure compliance with environmental standards. The court's decision emphasised the importance of environmental protection and the need for entities like Sydney Water to take proactive steps to prevent harm to the environment and public health.

Orders

Orders of the court

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].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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…