Environment Protection Authority v Sydney Water Corporation

[2021] NSWLEC 4

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 4

Hearing dates:

17 December 2020

Date of orders:

28 January 2021

Decision date:

28 January 2021

Jurisdiction:

Class 5

Before:

Pepper J

Decision:

See orders at [249].

Catchwords:

ENVIRONMENTAL OFFENCES: sewerage overflow – breach of environment protection licence condition – failure to comply with clean-up notice – pleas of guilty – determination of appropriate sentence – whether failure to comply with clean-up notice a continuing offence – extent of harm caused by the commission of the offences – whether the offences committed negligently or recklessly – whether the De Simoni principle applies – subjective circumstances of the offender – prior convictions for environmental offences – monetary penalty imposed – part of monetary penalty imposed to be paid to council for environmental project – moiety ordered – publication order made.

Legislation Cited:

Clean Waters Act 1970, s 16(1)

Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A(2), 21A(3)

Criminal Procedure Act 1986, ss 257B, 257G

Fines Act 1996, s 122

Pollution Control Act 1970, s17D(9)

Protection of the Environment Operations Act 1997, ss 3, 64, 91, 116, 120, 149, 241, 242(1), 248, 250(1)(a), 250(1)(e)

Cases Cited:

Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357

Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234

Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304

Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683

Cessnock City Council v Quintaz Pty Limited; Cessnock City Council v McCudden [2010] NSWLEC 3; (2010) 172 LGERA 52

Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114; (2019) 242 LGERA 241

Chief Executive, Office of Environment and Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109

Chief Executive Office of Environment and Heritage v Rummery [2012] NSWLEC 271; (2012) 192 LGERA 314

Chief Executive of the Office of Environment and Heritage, Department of Premier and Cabinet v Turnbull [2014] NSWLEC 150

Director-General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110

Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121

Environment Protection Authority v Albiston [2020] NSWLEC 80

Environment Protection Authority v Alkem Drums [2000] NSWCCA 416; (2000) 113 LGERA 130

In Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278

Environment Protection Authority v Barnes [2006] NSWCCA 246

Environment Protection Authority v Causmag Ore Company Pty Ltd [2015] NSWLEC 58

Environment Protection Authority v Crown in Right of New South Wales [2019] NSWLEC 178

Environment Protection Authority v D F Herbert Pty Limited [2006] NSWLEC 575

Environment Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90

Environment Protection Authority v Ecolab Pty Limited [2002] NSWLEC 206; (2002) 123 LGERA 269

Environment Protection Authority v Hawkesbury City Council [2017] NSWLEC 39

Environment Protection Authority v Hunter Water Corporation [2016] NSWLEC 76

Environment Protection Authority v Imad Osman-Kerim [2017] NSWLEC 63

Environment Protection Authority v Incitec Limited [2003] NSWLEC 381

Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65

Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103; (2014) 206 LGERA 239

Environment Protection Authority v Queanbeyan City Council (No 3) [2012] NSWLEC 220; (2012) 192 LGERA 415

Environment Protection Authority v Ravensworth Operations Pty Limited [2012] NSWLEC 222

Environment Protection Authority v Snowy Hydro Ltd [2008] NSWLEC 264; (2008) 162 LGERA 273

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

Environment Protection Authority v Sydney Water Corporation [2000] NSWLEC 80

Environment Protection Authority v Sydney Water Corporation [2000] NSWLEC 156

Environment Protection Authority v Sydney Water Corporation [2015] NSWLEC 80

Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100

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

Environment Protection Authority v Tea Garden Farms Pty Ltd [2012] NSWLEC 89

Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299

Environment Protection Authority v Whitehaven Coal Mining Limited [2019] NSWLEC 27; (2019) 239 LGERA 31

Environment Protection Authority v Wollondilly Abattoirs Pty Ltd [2019] NSWLEC 72

Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189

Gordon Plath of the Department of Environment and Climate Change v Fish [2010] NSWLEC 144; (2010) 179 LGERA 386

Gore v The Queen [2010] NSWCCA 330; 208 A Crim R 353

Harris v Harrison [2014] NSWCCA 84; (2014) 86 NSWLR 422

Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348

Liverpool City Council v Leppington Pastoral [2010] NSWLEC 170

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Muldrock v R [2011] HCA 39; (2011) 244 CLR 120

Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253

Plath v Vaccount Pty Ltd t/as Tableland Timbers [2011] NSWLEC 202

R v De Simoni [1981] HCA 31; (1981) 147 CLR 383

R v Dib [2003] NSWCCA 117

R v Dodd (1991) 57 A Crim R 349

R v DP [2019] NSWCCA 55

R v Nichols (1991) 57 A Crim R 391

R v Olbrich [1999] HCA 54; (1999) 199 CLR 270

R v Oliver (1980) 7 A Crim R 174

R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383

R v Visconti [1982] 2 NSWLR 104

R v Wickham [2004] NSWCCA 193

Samuel v R [2017] NSWCCA 239

Sloggett v Adams (1953) 70 WN (NSW) 206

Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561

Water NSW v Barlow [2019] NSWLEC 30; (2019) 244 LGERA 1

Category:

Sentence

Parties:

Environment Protection Authority (Prosecutor)
Sydney Water Corporation (Defendant)

Representation:

Counsel:
G Wright (Prosecutor)
S Hall (Defendant)
Solicitors:
Environment Protection Authority (Prosecutor)
Maddocks Lawyers (Defendant)

File Number(s):

2019/286475 and 2019/286476

Judgment

Sydney Water Corporation Pleads Guilty to an Offence of Failing to Comply with its Licence and an Offence of Failing to Comply with a Clean-Up Notice

1. On 7 February 2020 the defendant, Sydney Water Corporation (“Sydney Water”), pleaded guilty to two contraventions of the Protection of the Environment Operations Act 1997 (“POEOA”) that occurred following an overflow of sewage from a maintenance hole in a Sydney Water sewer main into an unnamed creek (“the creek”) and surrounding bushland at Bangor due to a choke, that is, a pipe blockage caused by tree root overgrowth (“the overflow”).

2. The first was an offence against s 64(1) of the POEOA of failing to comply with a condition of its environment protection licence (“EPL”) (“the licence offence”). The second was an offence against s 91(5) of that Act for failing to comply with a clean-up notice issued by the prosecutor, the Environment Protection Authority (“EPA”), without reasonable excuse (“the clean-up notice offence”).

3. The summons for the licence offence is in the following terms:

The Prosecutor claims:

1. That the defendant, Sydney Water Corporation, having its head office at 1 Smith Street, Parramatta, in the State of New South Wales, appear before a Judge of the Court to answer the charge that, from about 14 September 2018 to about 19 October 2018 inclusive, at or near approximately 500m north of 15 Illaroo Street and approximately 150 metres west of 17 Yates Road, Bangor, in the State of New South Wales, it committed an offence against section 64(1) of the Protection of the Environment Operation Act 1997 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 1728.

b. Licence condition

Condition O3.1, which states:

“O3.1 In the event of an overflow from the reticulation system… that harms or is likely to harm the environment or present a significant public health risk, the licensee must take all reasonable and feasible actions as soon as practicable to minimise the impact of the overflow… on the environment and public health…”

c. Manner of breach

The defendant, in response to a sewage overflow (the Overflow) from the Cronulla Sewage Treatment Plant reticulation system, at or near a maintenance hole on a sewer main, approximately 500m north of 15 Illaroo Street and approximately 150 metres west of 17 Yates Road, Bangor in the State of New South Wales (the Overflow Point), that harmed or was likely to harm the environment or present a significant public health risk, failed to take all reasonable and feasible actions as soon as practicable to minimise the impact of the Overflow on the environment and public health, in that:

i.   the defendant’s Field Sampling and Testing team sent to investigate the Overflow and recommend clean up actions was not informed of the exact location of the maintenance hole from which the Overflow occurred (maintenance hole 1260717) being the Overflow Point with the result that the Field Sampling and Testing team went to the maintenance hole immediately downstream of the Overflow Point (maintenance hole 1257989). This had the consequence that clean up actions were not commenced on the bushland and unnamed creek between maintenance hole 1260717 and maintenance hole 1257989 until 20 September 2018

ii.   the clean up actions were not completed by the defendant until 19 October 2018 in circumstances where it was reasonable and feasible to complete them before that date. In particular:

a.   clean up actions were not undertaken on 19 September 2018

b.   clean up actions were not undertaken between 6 October and 14 October inclusive

c.   additional personnel should have been deployed so that the clean-up was completed by an earlier date

d.   supervisors should have been allocated to ensure that the clean up actions were completed in the right order and to the correct standard. In particular to ensure that sewage materials collected in bags were removed and disposed of and that material placed under temporary cover was promptly removed

e.   collected material should have been removed from the impacted areas sooner

iii.   flushing (washing with mains water) of the unnamed creek occurred in circumstances where:

a.   the sewage material had not been removed from the unnamed creek

b.   the precautions taken to ensure that the flushing was fully contained by the water gates were not adequate to ensure that outcome

c.   the water gates installed may not have fully contained the sewage material flushed out of and in the unnamed creek

with the result that flushed sewage material was washed further downstream

iv.   as a consequence of the matters pleaded above, the impact of the Overflow on the environment and public health was not minimised.

4. Section 64(1) of the POEOA relevantly provides that:

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.

Maximum penalty—

(a)   in the case of a corporation—$1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues…

5. At all relevant times, conditions L1.1 and 1.3 of Sydney Water’s EPL state that:

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.

…

L1.3   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.

6. Condition L7 deals with other limit conditions. Relevantly, L7.2 and L7.4 state:

L7.2   Wet weather overflow limits

Not applicable.

…

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 18 in any reporting period.

7. Importantly, condition O3.1 of the EPL provides that:

O3 Emergency response

O3.1   In the event of an overflow from the reticulation system or a bypass from a sewage treatment plant that harms or is likely to harm the environment or present a significant public health risk, the licensee must take all reasonable and feasible actions as soon as practicable to minimise the impact of the overflow or bypass on the environment and public health.

For the avoidance of doubt, the requirements of this condition are in addition to any measures required to be implemented in accordance with the Pollution Incident Response Management Plan required to be prepared and implemented under Part 5.7A of the Protection of the Environment Operations Act 1997.

8. The summons for the clean-up notice offence states:

The Prosecutor claims:

1. An order that the defendant, Sydney Water Corporation, having its head office at 1 Smith Street, Parramatta, in the State of New South Wales, appear before a Judge of the Court to answer the charge that, from about 21 September 2018 to about 19 October 2018 inclusive, at or near approximately 500m north of 15 Illaroo Street and approximately 150 metres west of 17 Yates Road, Bangor, in the State of New South Wales, it committed an offence against section 91(5) of the Protection of the Environment Operations Act 1997 in that it was given a clean-up notice and, without reasonable excuse, it did not comply with the clean-up notice.

Particulars

a. Clean-Up Notice:

Clean-Up Notice No. 1570263 dated 21 September 2018.

b. Clean-Up Notice conditions not complied with:

1.   “Complete all reasonable and feasible clean-up of all affected land and waters (as indicated by the water quality sampling and analysis at condition 3) as soon as practicable, or before 28 September 2018, to minimise the impact of the overflow on the environment and public health, including downstream to the confluence with Woronora River if necessary.”

2.   “The clean-up required by condition 1 must include the removal of all sewage related material and sewage contaminated water related to the incident as far as is reasonably practicable.”

c. Manner of breach:

The defendant in response to a sewage overflow (the Overflow) from the Cronulla Sewage Treatment Plan reticulation system, at or near a maintenance hole approximately 500m north of 15 Illaroo St Bangor and approximately 150 metres west of 17 Yates Road, Bangor in the State of New South Wales (the Overflow Point):

a.   failed to remove, by manual clean-up or otherwise, all sewage related material and sewage contaminated water related to the Overflow until 19 October 2018

As a consequence of which, the impact of the Overflow on the environment and public health was not minimised.

9. Section 91(5) of the POEOA relevantly provides that:

91   Clean-up by occupiers or polluters

(5)   Offence A person who, without reasonable excuse, does not comply with a clean-up notice given to the person is guilty of an offence.

Maximum penalty—

(a) in the case of a corporation—$1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues…

10. The expressions “pollution incident” and “clean-up action” are defined in the Dictionary to the POEOA as follows:

clean-up action, in relation to a pollution incident, includes—

(a)     action to prevent, minimise, remove, disperse, destroy or mitigate any pollution resulting or likely to result from the incident, and

(b)     ascertaining the nature and extent of the pollution incident and of the actual or likely resulting pollution, and

(c)     preparing and carrying out a remedial plan of action.

…

pollution incident means an incident or set of circumstances during or as a consequence of which there is or is likely to be a leak, spill or other escape or deposit of a substance, as a result of which pollution has occurred, is occurring or is likely to occur. It includes an incident or set of circumstances in which a substance has been placed or disposed of on premises, but it does not include an incident or set of circumstances involving only the emission of any noise.

Sydney Water’s EPL

11. The EPL authorises the carrying out of “sewage treatment” activities at certain premises. “Sewage treatment” is defined in cl 36 of Sch 1 of the POEOA as:

36   Sewage treatment

(1)   This clause applies to sewage treatment, meaning 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.

(2)   The activity to which this clause applies is declared to be a scheduled activity if it has a processing capacity that exceeds—

(a)   2,500 persons equivalent, as determined in accordance with guidelines established by an EPA Gazettal notice, or

(b)   750 kilolitres per day,

whichever is the greater.

12. The sites to which the EPL applies are specified by the EPL to be (“the premises”):

1. the Cronulla Sewage Treatment System, including the Sewage Treatment Plant at Captain Cook Drive, Kurnell, NSW; and

2. the reticulation system owned and operated by the licensee (that is, Sydney Water) that is associated with the sewage treatment plant.

13. The reticulation system at the premises includes:

1. sewer pipes and mains at the site near 15 Illaroo Street, Bangor (“the mains”), including a 300mm diameter clay pipe (“the pipe”);

2. a maintenance hole which is located on the upstream end of the pipe approximately 300 to 500m north of 15 Illaroo Street, Bangor, and 150m west of 17 Yates Road, Bangor (“the upstream maintenance hole”). This is the location at which the overflow occurred; and

3. a maintenance hole which is located on the downstream end of the pipe (“the downstream maintenance hole”).

14. At all relevant times, Sydney Water was the occupier of the premises and was responsible for its management, operation, inspection, maintenance, and repair.

15. The creek, the mains, the upstream and downstream maintenance holes, and surrounding bushland in Bangor are located on Crown Land (Lot 477 of Deposited Plan 752034) and are used as a public reserve. The creek runs north of Illaroo Street and continues for approximately 690m downstream until it reaches the Woronora River.

The Overflow Incident Giving Rise to the Commission of the Offences

14 September 2018

16. At 6:16am on 14 September 2018, Sydney Water received an odour complaint.

17. If a Sydney Water officer observes a maintenance hole overflowing they declare it an incident by telephoning a scheduler. Upon an incident being declared, a Field Services Team is deployed to assess the impact of the incident, determine response options, and ensure that the required authorities are notified.

18. At 7:00am, Nicola Kociski and Luke Allison, two production employees working in Sydney Water’s civil delivery team, attended the overflow at the upstream maintenance hole. Kociski notified the Sydney Water scheduler to declare an incident.

19. At 11:20am Kociski and Allison cleared the pipe using a jetter truck. The overflow ceased.

20. The duration of the overflow was 5 hours and 4 minutes (from the time Sydney Water was notified to the time that the overflow ceased).

21. The overflow occurred during dry weather. Sydney Water estimated that approximately 57,000L discharged from the upstream maintenance hole.

16. Once the overflow ceased, Kociski and Allison installed a watergate in the creek approximately 400m downstream from the upstream maintenance hole (“watergate 1”) and placed signage adjacent to the fire trail in the vicinity of 15 Illaroo Street, Bangor.

17. A watergate is a protective barrier or a dam made of polyester fabric designed to hold back a certain amount of water. For example, when a watergate is placed across a creek, incoming water accumulates inside the barrier and exerts pressure on the bottom of the fabric keeping the barrier in place. It is essential that the incoming water be removed from the watergate using a water pump. If not, the accumulated water will eventually flow over and around the watergate and into the protected areas. If water is not kept from accumulating over the watergate, the watergate will not be effective.

18. Sydney Water’s Field Sampling and Testing Team (“FST Team”) arrived late afternoon to conduct an initial environmental assessment. However, because the light was fading and the FST Team decided that the terrain was too difficult to assess, it left without completing the assessment.

19. That evening Ian Thorney of Sydney Water notified the incident to the EPA Environment Line.

15 September 2018

26. At 8:00am on 15 September 2018, the FST Team arrived at a cul-de-sac near 15 Illaroo Street, Bangor, to conduct an environmental assessment of the overflow and to undertake water quality monitoring in the creek.

27. The FST Team encountered other Sydney Water staff who instructed them to follow the fire trail, an arrow on a tree, and a marking on a rock, to find the overflow point. The FST Team arrived at a site they believed to be the point of the overflow. Sharon Armstrong of the FST Team called the Sydney Water scheduler to confirm whether this was the correct location. She received a map by email on her phone which contained a highlighted wastewater line that included two maintenance holes on either side of that line (the first and second maintenance holes). The Sydney Water scheduler did not, however, provide GPS coordinates for the point of the overflow itself.

28. The FST Team assessed the area and took water samples at different sections of the creek.

29. At 9:04am that same day Armstrong made the following recommendation regarding the remediation of the overflow (“the first FST recommendation”):

Flush into underground stormwater at the end of Illaroo St for 8hrs while pumping at watergate adjacent to unknown water asset.

30. Flushing is carried out by directing mains water to flow over an affected area. Pumping is carried out by pumping out water and other liquid using a pumping unit. Containment such as a watergate is needed to allow the water to pool and be pumped.

31. Sydney Water’s FST procedure provides that the environmental response staff member attending an incident is responsible for providing advice on clean-up procedures. The procedure states that the aim is to return the receiving waterway to its pre-existing condition in a timely manner. To do this the preferred course of action is to contain (for example, using sandbags or other barriers such as a watergate) and pump out (remove) any sewage that may be present in the waterway. Sydney Water’s procedure specifically states that flushing only is not a clean-up option.

32. At 11:26am Sydney Water officers (Mitchell Rees, a field supervisor, and Kerry Sargeant) commenced flushing the creek with mains water at a location above the pipe and pumped it out to a sewer access point located at watergate 1, being the containment installed at the creek about 400m downstream of the upstream maintenance hole.

33. This activity continued until 3:55pm. No manual clean-up occurred.

16 to 18 September 2018

34. Between 7:56am and 3:30pm on 17 September 2018, Rees and Ross Mansfield (a member of Sydney Water’s clean-up crew) continued flushing the creek with mains water at a location above the pipeline and pumped it out to a sewer access point from behind watergate 1. Again, this activity did not involve any manual clean-up.

35. No clean-up action was taken on 17 or 18 September 2018.

19 September 2018 – the First EPA Inspection

36. On 19 September 2018 at 9:11am, Sydney Water provided the EPA with a written report pursuant to s 149 of the POEOA and condition R2.2 of the EPL (“the R2 Report”).

37. Condition R2.2 of the EPL relevantly provides that:

The licensee must provide written details of the notification to the EPA within 7 days of the date on which the incident occurred.

38. The R2 Report incorrectly reported that:

A manual clean-up of the affected area was completed at 15:30 16/09/2018 as per FST recommendations.

39. Between 2:20pm and 4:00pm that day, EPA officers Benn Treharne and Adam Wethered arrived at a cul-de-sac near 15 Illaroo Street, Bangor, to carry out an inspection of the site. They observed a warning sign located on the fire trail gate adjacent to 15 Illaroo Street. The sign included words to the effect that the area may be affected by a sewage overflow and that the area should be avoided. Using the description of the incident and the location of the overflow from the R2 Report as a guide, they walked along the fire trail in a northerly direction for 100 to 200m and located a second Sydney Water sign identical to the first one observed by them. The officers then headed off the fire trail into the bushland down a slight hillslope in a westerly direction.

40. Approximately 50m off the fire trail, Treharne and Wethered identified the upstream maintenance hole located on the bank of the creek. They observed a thick layer (5 to 15cm) of grey sewage solids material, including rags, faeces, sanitary items, and toilet paper. The extent of the affected land at the upstream maintenance hole was around four to five metres wide and stretched for around six metres in length from the creekbank, upslope from the upstream maintenance hole. A moderate to strong intermittent ambient odour was present.

41. Access to the upstream maintenance hole had been cleared. However, the affected area around it was otherwise undisturbed from any cleaning activities.

42. Treharne and Wethered took various photographs during their inspection that depicted:

1. the upstream maintenance hole affected by the overflow with branches laying on top of the sewage material; and

2. sewage material around the upstream maintenance hole and inflow into the creek that had occurred from either side of a large tree.

43. Immediately where the sewage from the upstream maintenance hole had entered the creek (downslope of the large tree shown in one of the photographs), the EPA officers observed grey pulp on the dry channel bed and pulp on the base of the banks. This location was where the sewage had flowed into the creekbank and the creek also appeared undisturbed from any cleaning activities. The photographs showed:

1. the flow path of sewage material from the upstream maintenance hole down the channel bank and into the creek; and

2. grey and turbid water in the creek approximately one metre downstream of the point of inflow from the upstream maintenance hole.

44. Treharne and Wethered inspected the creek up to 40m upstream of the point of sewage inflow from the upstream maintenance hole and took photographs that showed the water and substrate were clear and free from sewage in the creek up to 40m upstream from the point of inflow from the upstream maintenance hole.

45. They walked downstream of the point of inflow from the upstream maintenance hole and observed that natural partial containment had formed within the channel which trapped sections of the solid sewage pulp behind it. Further downstream (40 to 80m from the upstream maintenance hole) smaller pools of sewage water were present. Further photographs taken by the officers indicated that:

1. the creek was filled with grey odorous sewage sludge approximately 15m downstream from the upstream maintenance hole. The EPA officers took a water sample from this point of the creek; and

2. pockets of sewage pulp were caught up within the creek around 80m downstream.

46. Treharne and Wethered returned to the fire trail and walked in a northerly direction. They located watergate 1 in place around 415m downstream from the upstream maintenance hole. A generator and pump was onsite at watergate 1. The EPA officers observed that minimal flow was passing downstream through the creek and a natural pool feature near where watergate 1 was installed. Watergate 1 appeared to be effective.

47. Between 420 to 630m downstream from the upstream maintenance hole (and approximately 230m downstream from watergate 1), the EPA officers observed numerous odorous dark grey sewage affected pools. Photographs taken by them revealed that:

1. no pumping of contaminated water was occurring at watergate 1 in place approximately 415m downstream from the upstream maintenance hole;

2. the generator and pump were set up adjacent to watergate 1, but the pump was not operating;

3. grey sewage had stained instream rocks and a sewage affected pool existed approximately 20m downstream from watergate 1; and

4. there was an area within the lower reaches of the creek prior to its confluence with the Woronora River, which appeared to be on the extent of the tidal limit, around 630m downstream from the overflow and 215m downstream from watergate 1, and where the officers took a water sample.

48. At no point during their inspection did Treharne and Wethered see any Sydney Water staff or vehicles.

49. It was apparent from the inspection that the first FST recommendation was not based on the correct maintenance hole. That is, it was based on the downstream maintenance hole and not the upstream maintenance hole, and therefore, not on the maintenance hole where the overflow occurred. As a result, the first FST recommendation did not include the manual clean-up of the correct maintenance hole.

20 September 2018

50. At 8.51am on 20 September 2018, EPA officer Sarah Thomson telephoned Ryan Carr of Sydney Water to inform him of the observations made by the EPA officers the day before.

51. Thomson gave Sydney Water the following verbal instructions, namely, to (“the EPA’s verbal instructions”):

1. undertake a manual clean-up of solids around the point of overflow; and

2. consider installing two more watergates: one upstream and one downstream of watergate 1.

52. At 9.35am Jon Masters, Acting Civil Delivery Manager at Sydney Water, attended the site and walked upstream along the creek from watergate 1. He observed a lot of pulp around the first maintenance hole and that the pulp did not appear to have been attended to. Masters mobilised a number of clean-up crews to attend the site later that day.

53. At 10:04am Thomson emailed Carr at Sydney Water confirming the EPA’s verbal instructions earlier that morning. The email relevantly stated the following (“the EPA’s written instructions”):

EPA observations:

-    Signage observed along fire trail, watergate installed, pump on site but with service tag on it and not operational, no staff present

-   Manhole from where incident occurred was located and no manual clean up seemed to have occurred; an area 5x6m was covered in sewage solids, rags etc

-   Sewage was seen in the unnamed creek; the first approx. 40m was full of solids estimated to be 20-30cm deep

-   Overall approximately 700m of creek is impacted; a watergate was observed at approx. 400m from the overflow point but sewage impacted creek was observed past this watergate

-   Numerous pools of black sewage impacted water were seen beyond the watergate

Clean up required on the following:

-   Manual clean up of solids around the manhole

-   Manual clean up of the solids within the unnamed creek – note this needs to occur prior to any flushing to minimise further impacts – note there are significant manholes structures to enable this to occur easily

-   Flushing required in a staged approach to return water to sewer as soon as is able (noting the many manholes available)

-   FST should consider installing two more watergates – one above the existing watergate and another below the existing watergate and then after sewage solid removal consider staged flushing approach

As mentioned on the phone this morning I am greatly concerned about the information provided to the EPA regarding 15 Illaroo St. The R2 Report, received 19 September, stated

A manual clean-up of the affected area was completed at 15:30 16/09/2018 as per FST recommendations.

This led the EPA to be [sic] believe that clean up had been finished. Our observations suggest that no clean up has occurred.

54. Two additional watergates were subsequently installed by Sydney Water. One 70m downstream of watergate 1 and 470m downstream of the upstream maintenance hole (“watergate 2”); the other was installed 70 to 90m downstream from the upstream maintenance hole and 310 to 330m upstream of watergate 1 (“watergate 3”). Flushing and pumping commenced at watergate 3.

55. At 2:30pm that day the FST Team attended the site to conduct sampling and to provide recommendations. The FST Team recommended that watergate 3 be removed, which it was that afternoon.

56. The FST Team located and inspected the upstream maintenance hole and made the following recommendations (“the second FST recommendation”):

Manual clean up around affected manhole.

Remove watergate from upstream of manhole. A/C painted yellow

Continue flushing into underground stormwater at lllaroo St for 8 hours while pumping out at first watergate.

Move second watergate downstream 10 metres to be behind impacted ponded section of creek.

Remove first watergate and continue flush for 8 hours while pumping out at second watergate.”

57. Sydney Water’s procedure for environmental response to sewage overflows provides that:

1. sewage solids on soil must be manually removed (bagged) from an affected area. A topsoil dressing is sometimes performed by Sydney Water clean-up crew when sewage solids cannot be totally removed by manual means to create a barrier between the public and the contaminated area. But the action of covering sewage with soil blocks UV from the sunlight that kills bacteria and provides a dark moist habitat that helps the bacteria survive longer in the environment. Where possible it is best to prohibit access for a couple of days and let sunlight kill off the sewage bacteria;

2. a topsoil dressing for incidents located in national parks or sensitive areas is never recommended due to the likelihood of noxious weed introduction; and

3. sewage solids in a creek may be removed manually, sucked up by a tanker or, if located in an inaccessible area, may be flushed downstream to a dammed section where they can be pumped out.

58. No clean-up action was taken by Sydney Water on 20 September 2018.

21 September 2018

59. At 7:00am on 21 September 2018, the Sydney Water clean-up crew were provided with the second FST recommendation. Initially the clean-up crew went to another nearby incident by mistake.

60. At 9.05am Treharne and Wethered attended the Bangor site and observed that the EPA’s written instructions had not been wholly complied with. In particular:

1. no clean-up of the affected bushland or the overflow path had occurred;

2. unattended flushing from a standpipe at Illaroo Street into the affected area was occurring, and there was no pumping out taking place at watergate 1 or watergate 2;

3. watergate 3 had been removed;

4. sewage material was moving downstream to and past watergate 1 and watergate 2 at moderate to high flow;

5. sewage material was flowing into the intertidal mangrove area at the confluence with the Woronora River approximately 700 to 800m downstream of the upstream maintenance hole; and

6. large solid masses of sewage pulp were moving downstream from the upstream maintenance hole and were breaking up in the flushing water.

61. Treharne and Wethered took photographs during their inspection which were before the Court.

62. Treharne also took videos of the creek at watergate 1 and watergate 2 during the EPA inspection. The first video shows unattended flushing at a moderate to high flow in the creek that was bypassing over and under watergate 1 and that was continuing uncontained downstream in the creek. The water appeared turbid and was a grey colour. The second video showed unattended flushing bypassing over and under watergate 2 and that continued uncontained downstream. Again, the water was turbid and grey in colour.

63. At 10:30am Sydney Water staff arrived at the Bangor site. At the upstream maintenance hole, Treharne spoke with Sydney Water Acting Site Supervisor, Travis Martin. Martin said that the clean-up was a “large job” and that he was going to recommend that Sydney Water arrange contractors to assist.

64. At the direction of Treharne, Sydney Water staff turned off the standpipe, ceased unattended flushing and commenced pumping at watergate 1. Another containment device was installed slightly downstream of the upstream maintenance hole and a manual clean-up of sewage solids in the first 20 to 30m of the creek commenced.

65. It was not in dispute that Sydney Water failed to carry out the following reasonable and feasible actions as soon as practicable, namely:

1. the clean-up crew did not carry out manual clean-up of sewage around the upstream maintenance hole as required by the second FST recommendation and did not contain solids and contaminated water at watergate 1 and watergate 2 as required by Sydney Water procedure;

2. it carried out flushing without pumping which led to sewage moving downstream; and

3. it failed to communicate clear instructions to its clean-up staff and the instructions that were provided were verbal and minimal.

66. Later that afternoon, Thomson and Yvonne Sinanovic, a Sydney Water officer, exchanged email correspondence. The EPA advised Sydney Water of its intention to issue a clean-up notice in relation to the overflow and provided a draft of the notice to Sydney Water for comment. Sydney Water did not take any issue with the terms of the proposed clean-up notice.

67. Early that evening, the EPA issued Sydney Water with a Notice of Clean-up Action (“the clean-up notice”) pursuant to s 91 of the POEOA. The clean-up notice “directed” Sydney Water “to undertake the following clean-up action”:

1.   Complete all reasonable and feasible clean up of all affected land and waters (as indicated by the water quality sampling and analysis at condition 3) as soon as practicable, or before 28 September 2018, to minimise the impact of the overflow on the environment and public health, including downstream to the confluence with Woronora River if necessary.

2.   The clean-up required by condition 1 must include the removal of all sewage related material and sewage contaminated water related to the incident as far as is reasonably practicable.

3.   Water quality sampling and analysis of the affected waterways, must occur twice a week at least 3 days apart until water quality results reach background level. The analysis must include temperature, dissolved oxygen, pH, ammonia, faecal coliforms, and enterococci.

4.   The water quality sampling results, once available, must be sent to the EPA's Unit Head Metropolitan Infrastructure by close of business the next business day.

5.   Provide updates to the EPA on progress with completion of the tasks outlined in this notice by close of business 26 September 2018.

6.   Provide a report to the EPA by no later than 5pm, 5 October 2018 outlining in detail all actions (and their locations) undertaken to comply with conditions a to d including photographic and laboratory evidence to demonstrate clean-up.

…

Penalty for not complying with this notice

●   The maximum penalty for a corporation is $1,000,000 and a further $120,000 for each day the offence continues.

…

Continuing obligation

● Under section 319A of the Act, your obligation to comply with the requirements of this notice continues until the notice is complied with, even if the due date for compliance has passed.

68. To date Sydney Water had removed some, but not all, of the sewage materials referred to in the clean-up notice.

22 September to 2 October 2018

69. Sydney Water continued with clean-up activities between 22 September and 2 October 2018. No clean-up occurred on 24 and 27 September 2018, however, the FST Team carried out sampling and submitted recommendations for further clean-up on both of those days.

70. Specifically, on 22 September 2018 Sydney Water telephoned a supervisor at Veolia, Cameron Gleg, and requested that Veolia supply a crew to assist it in the clean-up activities. Gleg arranged for another Veolia supervisor, Ian Sayers, to attend the site later that day.

71. At 1.00pm Sayers visited the site and discussed with Martin what equipment was needed. Sayers and Martin agreed that Veolia would assist Sydney Water to carry out clean-up operations the next day.

72. Marion Huxley, a Sydney Water Aquatic Ecologist, also attended and inspected the Bangor overflow site.

73. Sydney Water subsequently provided to the EPA a progress report that stated the following:

The site was attended and inspected by a Sydney Water Aquatic Ecologist. She found sewage and effluent present immediately downstream of the initial surcharge manhole. The sewage had pooled and is at a significant depth (approx. >40cm). It was reinforced that the sewage was to be removed manually before flushing, to reduce pollution further downstream.

She found evidence of dried sewage pulp, and a dark anaerobic substrate (approx. 15cm) was observed downstream, near and around the mangrove area. Oils were also observed downstream, which may have come from the sewage surcharge. The recommendation was that once the sewage has been eradicated, as far as practicable, the creek should be flushed to ensure a final clean-up.

27 September to 1 October 2018

74. On 27 September 2018 the FST Team attended the site and conducted an environmental impact assessment (“EIA”). It provided the following recommendations for the clean-up (“the third FST recommendation”):

27 September:

● Flush in underground stormwater from lllaroo St for a further 2 day shifts whilst pumping out from the first watergate still in place.

● Remove first watergate and continue flushing for a further dayshift whilst pumping out from watergate adjacent manhole number 7 (painted on manhole).

● Broom remnant pulp from rocks along affected section of creek whilst pumping/flushing.

● Leave signage in place until bacteriological results return under threshold.

75. On 28 September 2018 Paul Smith and Jordan Ormord of Sydney Water carried out flushing and pumping at watergate 1. They did not inspect the creek.

76. On 29 September 2018 Ross Parasiliti and Kociski of Sydney Water continued to flush and pump at watergate 1. They also did not inspect the creek.

77. On 30 September 2018 Gregory Peterson, David Nastoski and Gordan Pavlovski of Sydney Water continued to flush and pump at watergate 1. They walked upstream from watergate 1 to the upstream maintenance hole and observed pulp on creek banks. They stopped the pumping and flushing and used brooms to remove the pulp off the rocks and creek bank.

78. On 1 October 2018 Peterson, Nastoski, Pavlovski, Leon Stevanovski and Mitre Gorgievski of Sydney Water broomed the creekbank and rocks to remove pulp. They then recommenced flushing and pumping from watergate 1 at lower flow rates to enable the pump at that watergate to keep up with the downstream flow.

79. In the morning on 2 October 2018, George Orel and Wethered of the EPA attended the Bangor site. They observed:

1. flushing from a standpipe into the creek and pumping out from watergate 2;

2. that watergate 1 had been removed and was drying on the creekbank, and that sewage solids were in the creek upstream of it;

3. there was sewage solids material covered with sand around the upstream maintenance hole. Excavation pits adjacent to the upstream maintenance hole appeared to be the source of the sand;

4. that the creek was flowing with relatively clear flushed water. Within the first 100m downstream of the upstream maintenance hole they saw numerous areas where grey sewage material appeared to have settled in pools and was caught up among instream debris;

5. that the creek appeared to be impacted by sewage solids upstream of watergate 1 and downstream of watergate 2; and

6. that Sydney Water was blasting and brooming the rocks and substrate above and below watergate 2. Some of the sewage impacted wash water bypassed watergate 2 during this process. Sydney Water then pumped out the contaminated water from watergate 2. Some of the water that bypassed watergate 2 flushed and mobilised the blackwater in the dark pools below that watergate 2 and downstream towards the mangroves.

80. Orel and Wethered took photographs of their inspection and departed the site.

81. Later that day the FST Team attended the site to carry out sampling. They provided the following further clean-up recommendations (“fourth FST recommendation”):

2 October 2018:

● Removal of sewage solids from around the manhole.

● Removal of sewage contaminated materials in the creek downstream of the second watergate through pumping back to sewer as far downstream as is reasonably practicable.

3 October 2018 - the EPA Makes a Written Direction After the Clean-Up Notice Was Issued

82. On 3 October 2018 Treharne provided Sydney Water with details of the EPA’s findings from the inspection of the previous day, including the EPA’s concern that the clean-up notice had not been complied with.

83. Treharne instructed Sydney Water on the steps it needed to take to complete clean-up. The written instructions included the following clean-up actions from around the upstream maintenance hole down to the creek:

a.   Completion of a manual clean-up (bagging and removal) of all sewage solids from around the manhole down to the creek.

b.   The grey sewage material settled out within the creek requires removal to ensure further and ongoing impacts to the creek are minimised.

c.   As per the Clean-up Notice, Sydney Water is required to complete all reasonable and feasible clean-up of all affected waters including downstream to the confluence with Woronora River if necessary. It’s noted that the attached status report indicates that the Sydney Water Aquatic Ecologist recommended that the downstream reach requires a final flush once sewage material has been removed from the upper reaches. The EPA expects, that before this recommended final flush is undertaken, that Sydney Water completes all reasonable and feasible removal of sewage contaminated materials in the creek downstream of the second watergate through pumping back to sewer as far downstream as is reasonably practicable. This should be done as soon as possible and prior to the forecast rain wherever possible.

84. Sydney Water production employees Stevanovski, Nick Kostadinoski, Brendon Hart, Gorgievski and Pavlovski conducted clean-up activities that day.

4 to 8 October 2018

85. On 4 October 2018 Stevanovski, Kostadinoski, Hart, Gorgievski and Pavlovski continued clean-up activities.

86. On 5 October 2018 the FST Team attended the Bangor site and conducted an EIA. No clean-up action was taken by Sydney Water on that day.

87. That same day, Sydney Water provided a progress report pursuant to the clean-up notice which recommended that no further clean-up was required pending bacteriological results, which would be available the following week (“the fifth FST recommendation”).

88. Sydney Water noted that between 20 September and 2 October 2018, the FST Team had made repeated recommendations for manual clean-up which were reinforced by Huxley. The recommendations made it clear that that the sewage was to be removed manually before flushing to reduce pollution further downstream.

89. No clean-up action or further EIA was carried out by Sydney Water from 6 to 8 October 2018.

9 October 2018

90. The FST Team attended the Bangor site on 9 October 2018 and conducted an EIA. This recommendation was the same as that made on 5 October 2018, that is, that no further clean-up was required pending bacteriological results of the water samples collected from the creek (“the sixth FST recommendation”).

91. No clean-up action was taken by Sydney Water that day.

10 to 16 October 2018

92. No clean-up action or EIA was carried out by Sydney Water from 10 to 16 October 2018 inclusive.

93. On 15 October 2018 Sydney Water obtained laboratory results of water samples collected by the FST Team. The results indicated that the water quality in the creek had returned to background levels.

94. That same day an email was sent internally by Sydney Water stating:

ALL clean-up apparatus can be removed for the above jobs, signage included.

95. Accordingly, on 16 October 2018 Kostadinovski and Gorgievski visited the site to remove watergate 2 and the signage.

17 October 2018 - Further EPA Investigation

96. On 17 October 2018 Treharne and Wethered attended the Bangor site. They did not observe any Sydney Water staff or contractors present. They did not observe any Sydney Water signage on the fire trail.

97. Rather, they observed that a significant amount of the sewage solids material and sand that was present in bushland around the upstream maintenance hole during their previous inspections had been cleaned up. However, the area that was one to two metres from the upstream maintenance hole still contained a thick layer of sewage material (including rags and faeces) which was partially covered by sand. The affected area was approximately 2m² in size. They detected a very strong odour when the sewage was disturbed.

98. Nevertheless, they observed the visual water quality of the creek to be clear with no signs of pollution. No odour was present.

99. Treharne took photographs of the inspection on 17 October 2018.

100. No clean-up action or EIA was carried out by Sydney Water on this day.

18 and 19 October 2018

101. On 18 October 2018 the EPA provided Sydney Water with a detailed written advice of the findings from its site inspection the previous day and instructed Sydney Water what it needed to do in order to complete the clean-up. Specifically:

…the following clean-up is considered still required by the EPA to comply with the clean-up notice: Completion of a manual clean-up (bagging and removal) of all sewage solids from the creekbank down to the creek

102. Kostadinovski and Gorgievski of Sydney Water conducted clean-up activities that day.

103. On 19 October 2018 they removed 26 bags of material from manual clean-up activities for off-site disposal.

104. Sydney Water then informed the EPA that it had complied with the written advice referred to above.

Summary of Sydney Water’s Offending Conduct

105. An uncontentious summary of Sydney Water’s conduct is as follows. On 14 and 15 September 2018 Sydney Water failed to take all reasonable and feasible measures to communicate the location of the overflow to the FST Team so that the upstream maintenance hole could be identified as the actual overflow point. Sydney Water could and should have included GPS coordinates with a detailed map to assist the FST Team to locate the upstream maintenance hole in the bushland terrain. Instead, Sydney Water failed to identify the correct maintenance hole and consequently took remedial measures at the incorrect maintenance hole (the downstream maintenance hole) from 15 to 20 September 2018.

106. Further, Sydney Water wrongly advised the EPA in the R2 Report that the clean-up of the overflow had been completed on 16 September 2018. In addition, in the report provided by it on 5 October 2018 (as required by the clean-up notice), Sydney Water stated (following the fifth FST recommendation) that no further clean-up was required pending the return of sampling results. On both occasions, this led the EPA to believe that the clean-up had been completed and the clean-up notice complied with. It was not until the subsequent EPA inspections on 19 September and 17 October 2018, respectively, that the EPA realised that the clean-up had not been completed.

107. Sydney Water did not complete the clean-up of all affected bushland and waters of the creek until 19 October 2018.

108. Consistent with the evidence before the Court, it was agreed by the parties that it was reasonable and feasible for Sydney Water to:

1. have manually removed the pulp around the upstream maintenance hole and creekbank, and to have removed the contaminated water and much sooner than it did. The FST Team, Huxley, and the EPA, made repeated recommendations for the manual clean-up of the pulp around the upstream maintenance hole, including, where accessible, instructions to broom rocks along the creek to remove remnant pulp and solids before flushing the area with potable water as soon as practicable. Sydney Water had control over the clean-up activities and could have removed the pulp around the upstream maintenance hole and the creekbank more promptly and without flushing it downstream;

2. have carried out the flushing and pumping of contaminated materials in accordance with Sydney Water procedures in order to minimise sewage materials and contaminated water bypassing over and under watergate 1 and watergate 2 and continuing uncontained downstream towards the mangroves and the Woronora River; and

3. have allocated resources to the clean-up activities that were sufficient to carry out the clean-up in compliance with the clean-up notice. In addition, Sydney Water could have sought additional resources to complete the clean-up of all affected land and water as soon as practicable.

109. As a consequence of these failures, the impact of the overflow on the environment, which included the area between the upstream maintenance hole and watergate 2, and downstream to the Woronora River, and moreover, on public health, was not minimised.

Sentencing Principles

The Purposes of Sentencing

110. A basic principle of sentencing law is that the sentence imposed must reflect and be proportionate to the objective circumstances of the commission of the offences and the personal or subjective circumstances of the offender (Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 at 490 and Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472).

111. The instinctive synthesis method is the correct method of sentencing. The Court identifies all the factors relevant to the sentence and weighs their significance to arrive at the imposition of an appropriate penalty (Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 at [26] and [29] and Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [35]–[39], [50]–[84] and [136]–[139]).

112. Section 3A of the Crimes (Sentencing Procedure) Act1999 (“the CSPA”) sets out the purposes of sentencing an offender:

3A Purposes of sentencing

The purposes for which a court may impose a sentence on an offender are as follows:

(a)   to ensure that the offender is adequately punished for the offence,

(b)   to prevent crime by deterring the offender and other persons from committing similar offences,

(c)   to protect the community from the offender,

(d)   to promote the rehabilitation of the offender,

(e)   to make the offender accountable for his or her actions,

(f)   to denounce the conduct of the offender,

(g)   to recognise the harm done to the victim of the crime and the community.

113. The EPA bears the onus of proving beyond reasonable doubt any aggravating factors for the purpose of sentencing (Gore v The Queen [2010] NSWCCA 330; 208 A Crim R 353 at [26] and [104] and R v Wickham [2004] NSWCCA 193 at [27]). The onus lies upon Sydney Water to demonstrate any factor in mitigation on the balance of probabilities (Wickham at [27] and R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]).

114. In determining an appropriate sentence, the Court considers the objective and subjective circumstances of any offence in the context of the relevant legislative framework (Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [169] and Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65 at [42]).

Statutory Matters Required to be Taken into Account in Sentencing Sydney Water

115. The POEOA sets out the matters which must be taken into account in sentencing for offences committed under that Act in s 241:

241    Matters to be considered in imposing penalty

(1)      In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant):

(a)  the extent of the harm caused or likely to be caused to the environment by the commission of the offence,

(b)  the practical measures that may be taken to prevent, control, abate or mitigate that harm,

(c)  the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence,

(d)  the extent to which the person who committed the offence had control over the causes that gave rise to the offence,

(e)  whether, in committing the offence, the person was complying with orders from an employer or supervising employee,

(f)   the presence of asbestos in the environment.

(2)    The court may take into consideration other matters that it considers  relevant.

116. Subsections 21A(2) and (3) of the CSPA set out additional aggravating and mitigating factors that the Court must consider. Relevant to the facts of this case they are:

21A   Aggravating, mitigating and other factors in sentencing

(2)   Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows–

…

(d)   the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences),

…

(g)   the injury, emotional harm, loss or damage caused by the offence was substantial,

…

(o)   the offence was committed for financial gain…

The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.

(3)   Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows–

(a)   the injury, emotional harm, loss or damage caused by the offence was not substantial,

…

(e)   the offender does not have any record (or any significant record) of previous convictions,

(f)   the offender was a person of good character,

(g)   the offender is unlikely to re-offend,

(h   the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise,

(i)   the remorse shown by the offender for the offence, but only if:

(i)   the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii)   the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),

…

(k)   a plea of guilty by the offender (as provided by section 22 or Division 1A),

…

(m)   assistance by the offender to law enforcement authorities (as provided by section 23)…

Objective Circumstances of the Commission of the Offences

117. The Court must consider the objective gravity or seriousness of the offences. The objective gravity of the offences fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit insofar as the sentence must not exceed that which can be justified as appropriate or proportionate to the gravity of the crimes considered in light of the objective circumstances (Veen (No 2) and Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 354). It fixes the lower limit because allowance for the subjective factors of the case ought not produce a sentence which fails to reflect the objective gravity or seriousness of the offences (R v Dodd (1991) 57 A Crim R 349 at 354 and R v Nichols (1991) 57 A Crim R 391 at 395).

118. The objective seriousness is to be determined by reference to the nature of the offences and not by reference to matters that are personal to a particular offender (Muldrock at [27]).

117. The circumstances to which the Court may have regard in assessing their objective gravity include the matters set out in s 241 of the POEOA and s 21A(2) of the CSPA (Bentley at [163]; Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [110]; and Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [48]).

Nature of the Offences

120. The nature and purpose of the statutory provision that has been contravened, and its place in the statutory scheme, are illustrative of the objective seriousness of an environmental offence (Bentley at [168]-[169]; Rawson at [49]; Chief Executive, Office of Environment and Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 at [59]; and Water NSW v Barlow [2019] NSWLEC 30; (2019) 244 LGERA 1 at [17]).

121. The relevant objects of the POEOA identify the purposes of that Act as follows:

3   Objects of Act

The objects of this Act are as follows—

(a)   to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development,

(b)   to provide increased opportunities for public involvement and participation in environment protection,

(c)   to ensure that the community has access to relevant and meaningful information about pollution,

(d)   to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following—

(i)   pollution prevention and cleaner production,

(ii)   the reduction to harmless levels of the discharge of substances likely to cause harm to the environment,

(iia)   the elimination of harmful wastes,

(iii)   the reduction in the use of materials and the re-use, recovery or recycling of materials,

(iv)   the making of progressive environmental improvements, including the reduction of pollution at source,

(v)   the monitoring and reporting of environmental quality on a regular basis,

(e)   to rationalise, simplify and strengthen the regulatory framework for environment protection,

(f)   to improve the efficiency of administration of the environment protection legislation,

(g)   to assist in the achievement of the objectives of the Waste Avoidance and Resource Recovery Act 2001.

122. In relation to the licence offence, EPLs are a primary means of regulation under the POEOA. The commission of the offence therefore undermined the statutory scheme set out in that Act. In Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103; (2014) 206 LGERA 239 the Court opined that (at [104]):

104. …Compliance with licence conditions is the price that entities must pay for permission to engage in potentially polluting manufacturing processes. The conditions imposed in any licence are aimed at maximising beneficial environmental outcomes and minimising environmental harm. They represent a balancing exercise between fostering economic growth and development, on the one hand, and protecting and preserving the environment now and for the future, on the other. Strict compliance with the conditions of any environmental licence is therefore necessary to ensure that this balance is achieved and that the objectives of the POEOA are met.

123. Similar remarks were made by Pain J in Environment Protection Authority v Wollondilly Abattoirs Pty Ltd [2019] NSWLEC 72 (at [35]) and McClellan J in Environment Protection Authority v Incitec Limited [2003] NSWLEC 381 (at [49]).

124. Compliance with condition O3.1 of the EPL is an essential part of the regulatory framework for environmental protection. It required an emergency response to an overflow from the reticulation system. Condition O3.1 foreshadowed the possibility of harm to the environment and public health caused by sewage overflows and the failure to address them. Sydney Water had a clear obligation to prepare and implement measures for dealing with overflows when they occurred.

125. Sydney Water failed to carry out reasonable and feasible actions as soon as practicable thereby contravening condition O3.1 and undermining the objects of the POEOA, by:

1. not carrying out a manual clean-up of sewage around the maintenance hole as required by its own FST recommendation;

2. not containing solids and contaminated water at watergates 1 and 2 as required by its own procedures;

3. carrying out flushing without pumping which led to sewage moving downstream; and

4. failing to communicate clear instructions to its staff.

126. The offence created by s 91 of the POEOA also plays a critical role in giving effect to the objectives of the Act. Chapter 4 of the Act creates a regime of statutory notices, including clean-up notices, designed to protect the environment. Clean-up notices are intended, as their description suggests, to ensure the urgent remediation necessary to avoid or minimise pollution continuing or occurring. Thus, in Cessnock City Council v Quintaz Pty Limited; Cessnock City Council v McCudden [2010] NSWLEC 3; (2010) 172 LGERA 52 the Court remarked that (at [65]):

65 The purpose of s 91 is to serve the primary objects of the POEOA as expressed in s 3 by empowering an appropriate regulatory agency to require the occupier of land to take remedial steps on that land where the authority reasonably suspects that a pollution incident has occurred. There is a clear need to uphold the regulatory system established under the POEOA which depends on personal and corporate entities taking steps to remediate, rectify and remove sources of pollution as directed and in a timely manner. This system minimises any actual or potential environmental harm caused by the pollution and ensures that the costs of remediation are borne by those responsible for the pollution. ...

127. The observations in the cases quoted and referred to above are entirely apposite in the present proceedings.

Maximum Penalty

128. The maximum penalty for an offence reflects the seriousness with which the Parliament views its commission (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 and Rawson at [67]).

129. The maximum penalty for the licence offence is $1,000,000.

130. The maximum penalty for the clean-up notice offence is $1,000,000. Section 91(5)(a) of the POEOA also provides a maximum penalty of $120,000 for each day that the offence continues.

131. The EPA submitted that the maximum penalty for the clean-up notice offence was $3,520,000 because the offence continued from “at least” 28 September to 19 October 2018 (that is, $1,000,000 for the initial commission of the offence and $120,000 per day thereafter for 21 days).

132. It relied upon s 242(1) of the POEOA which states that:

242   Continuing offences

(1)   A person who is guilty of an offence because the person contravenes a requirement made by or under this Act or the regulations (whether the requirement is imposed by a notice or otherwise) to do or cease to do something (whether or not within a specified period or before a particular time)—

(a)   continues, until the requirement is complied with and despite the fact that any specified period has expired or time has passed, to be liable to comply with the requirement, and

(b)   is guilty of a continuing offence for each day the contravention continues.

133. Sydney Water refuted the proposition that the clean-up notice offence was a continuing offence attracting a daily penalty. It relied for support upon the decision of Environment Protection Authority v Alkem Drums [2000] NSWCCA 416; (2000) 113 LGERA 130 where Foster AJA applied Sloggett v Adams (1953) 70 WN (NSW) 206 as “sound both in policy and logic” (at [11]) and said that (at [9]-[10]):

9.   Street CJ said (at 208):

“The question whether the offence which has been committed is a continuing offence, or one which was committed once and for all at a specified time, depends upon consideration of the language of the Act in question. Some offences once committed are complete and concluded and exist only in the past. Other offences, however, are continuing offences and are committed day by day so long as the state of affairs which is forbidden continues to exist, and the person responsible for creating that state of affairs is liable day by day for those offences. The test, it seems to me, is one which was prescribed in Ellis v Ellis (1896) P 251 at 254 (1), by Sir Francis Jeune, who said: "The test whether an offence is to be treated in Jaw as continuous is, I think, whether its gravamen is to be found in something which the offender can, at will, discontinue." Applying that test to the section now under consideration, the legislature has made it clear that the offence is the failure to comply with the requirements of the notice. It is true that the notice deals with the eradication of noxious plants from the land, and one thing which must be done in order to comply with the notice is to eradicate. But the offence here was not a mere failure to eradicate generally, such as would be included under s 472 of the Local Government Act 1919 (NSW); it was a failure to eradicate within the prescribed time, that is, within the twenty-eight days which expired on 2nd July, 1951. At that moment the offence was complete and concluded, and thereafter it existed only in the past. If the offence were a continuing one, it would be one which could be remedied after 2nd July, 1951, but, on the language of the Act, once 2nd July, 1951, had passed the offence was complete, and that offence could never be remedied in the future…Section 473 places a specific burden upon a specific owner or occupier of land to comply with a specific notice which constitutes the offence. In my view, it was not a continuing offence. It was an offence which was committed, finally and conclusively, when 2nd July, 1951, arrived…”

10.   Owen J (at 208) said:

“Section 473 of the Local Government Act, imposes on the landholder the obligation to comply with the terms of a notice given to him under that section, and sub-s (5) makes it an offence not to comply with it.

Where, as here, the notice sets a time for the doing of the act which is required to be done, the offence is, in my opinion, committed once and for all if that act is not done within the time set…I would only add that if the present case is one of a continuing offence, then the offence is one which the landholder could never stop committing. Nothing he could do after the twenty-eight days had expired could ever be a compliance with the notice.”

134. According to Sydney Water, the offence created by s 91(5) of the POEOA ought not be construed as a continuing offence because the time limitation by which the clean-up notice had to be complied with was a critical feature of the offence. In the case of a clean-up notice that contains a date by which the notice must be complied with, the offence is complete only once the period for compliance has lapsed. It cannot, unlike a breach of an EPL condition, be rectified or the offending cease on the day or days following (unlike, by contrast, Environment Protection Authority v D F Herbert Pty Limited [2006] NSWLEC 575).

135. If for no other reason than the fact that the offence charged in the summons - and to which Sydney Water has pleaded guilty - was not stated to be a continuing offence, the clean-up notice offence as charged is not a continuing offence. It is essential that a defendant be appraised of the case against them prior to the entry of a plea of guilty. To inform Sydney Water at the time that the EPA’s submissions for the sentence hearing were filed (late, moreover), that it had been charged with a continuing offence, was demonstrably unfair.

136. In any event, as submitted by Sydney Water, properly construed, the offence enacted by s 91(5) is not a continuing offence and the maximum penalty for the clean-up notice offence is $1,000,000.

The Environmental Harm Caused or Likely to be Caused by the Commission of the Offences (s 241(1)(a) of the POEOA)

137. The environmental harm caused by the commission of the offences is a central consideration in determining their objective gravity and Sydney Water’s culpability.

138. Section 241(1)(a) of the POEOA requires the Court to take into account the extent of the harm caused, or likely to be caused, to the environment by the commission of the offences. “Harm” is defined in the Dictionary to the POEOA as:

harm to the environment includes any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution.

139. The concept of harm in the context of environmental offences is broad. In Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Preston J stated that harm includes both actual harm and potential harm (at [145]-[149]):

145. Harmfulness needs to not only be considered in terms of actual harm, the potential or risk of harm should also be taken into account: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 and Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [175]. Harm should not be limited to measurable harm such as actual harm to human health. It can also include a broader notion of the quality of life.

146. Harm can include harm to the environment and its ecology. Harm to an animal or plant not only adversely affects that animal or plant, it also affects other biota that have ecological relationships to that animal or plant: Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [174].

147. Harm can be direct or indirect, individual or cumulative. Activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernable direct harm to human interest, should also be treated seriously.

148. The culpability of the defendant depends in part on the seriousness of the environmental harm. Sentencing courts have exercised their discretion in relation to penalty on the principle that the more serious the lasting environmental harm involved, the more serious the offence and, ordinarily, the higher the penalty: Camilleris Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 701. If the harm is substantial, this objective circumstance is an aggravating factor: s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999.

149. The fact that the environment harmed by the offenders conduct was already disturbed or modified is not a mitigating factor: State Pollution Control Commission v White Wings Ltd (unreported, Land & Environment Court, No 50129 of 1991, Bignold J, 1 November 1991) at p 4; Environment Protection Authority v Ecolab Pty Ltd (2002) 123 LGERA 269 at 273 [14]; Environment Protection Authority v Coggins (2003) 126 LGERA 219 at 224 [18]; Environment Protection Authority v Abigroup Contractors Pty Ltd [2003] NSWLEC 342 (15 December 2003) at [24]; Environment Protection Authority v Arenco Pty Ltd [2006] NSWLEC 244 (9 May 2006) at [26].

140. Although Sydney Water is not being sentenced for the sewage overflow itself or its cause, but rather for its conduct in dealing with the aftermath of the overflow, it was not in dispute that:

1. the overflow caused actual environmental harm to the bushland surrounding, and downhill from, the upstream maintenance hole and into and downstream of the creek;

2. no manual clean-up of the overflow took place until 22 September 2018, that is, nine days after the overflow. This exacerbated its impact on the environment;

3. the flushing of the creek without pumping out the contaminated water had the effect of transferring additional sewage material downstream of the creek, and therefore, exacerbated the impact of the overflow downstream;

4. the results of the sampling from the creek established that the overflow caused actual harm to the environment surrounding the bushland and the creek and posed some risk to human health. The actual harm resulted in a change to the chemical and biological conditions of the water in the creek;

5. the overflow was likely to have caused harm to the creek through the deposition of sewage solids and other refuse at the upstream maintenance hole and in the surrounding bushland. It is likely that the introduction of the solid sewage material into the creek and the soil resulted in harm to aquatic life. The duration of that likely harm lasted until 19 October 2018, when the clean-up of solid material around the upstream maintenance hole was completed; and

6. the extent of the actual and likely harm extended from the upstream maintenance hole downstream as far as the confluence between the creek and the Woronora River, approximately 700m north-west of the upstream maintenance hole.

141. The EPA submitted that the commission of both offences resulted in substantial actual and likely harm to the environment, and moreover, undermined the regulatory framework for environmental protection in the State.

142. The EPA relied upon the unchallenged evidence of Christopher Doyle, an expert in the field of ecotoxicology and contamination assessment. Doyle is a Team Leader in Ecotoxicology (Environmental Forensics) in the NSW Department of Planning, Industry and Environment. He affirmed two affidavits on 4 and 28 October 2020, attaching expert reports to both.

143. Evidence of the environmental harm caused by the commission of the offences also includes the results of water sampling and the observations of both the EPA and Sydney Water referred to above in the judgment.

144. In Doyle’s first report he opined that:

Summary of opinion

8.   Based on the information provided to be in the Brief and the observations outlined in this report, it is my opinion the Incident caused actual harm to the unnamed creek through the introduction of sewage into the creek.

9.   The nature of the harm was the introduction of 57,000 litres of sewage into the unnamed creek on 14 September 2018 which resulted in:

•   a change to the chemical condition of the water in the creek through the introduction of elevated concentrations of the toxicant ammonia;

•   A change in the chemical condition of the creek through a short reduction in dissolved oxygen concentration at the point of the inflow of sewage into the creek;

•   a change to the biological condition of the waters through the introduction of faecal coliform bacteria; and

•   The introduction of solid sewage material into the creek and a subsequent change in the visual clarity of the creek water.

10.   The extent of harm extended from the inflow point of the sewage into the creek downstream as far as the confluence between the unnamed creek and the Woronora River. The duration of actual harm lasted until at least the 9 October 2018, based on the measured ammonia concentrations in the unnamed creek following the Incident.

11.   It is also my opinion, based on the information provided to me in the Brief and the observations outlined in this report, that the Incident was likely to have caused harm to the unnamed creek through the deposition of sewage solids and other refuse at the manhole from which the sewage overflow occurred and in the surrounding bushland.

12.   Given the proximity of the manhole and the solid sewage material to the unnamed creek, there was the likelihood the material would have resulted in:

•   The introduction of further amounts of the toxicant ammonia into the creek, which, if high enough, had the potential to cause toxicity to aquatic life;

•   The introduction of ammonia into the soil underlying the deposited sewage material as a result of leaching from the material; and,

•   The transfer of further solid sewage material (including faeces and refuse, such as toilet paper and rags) into the creek, which may have been harmful to aquatic life.

13.   The extent of likely harm extended from the manhole from which the overflow occurred downstream as far as the confluence between the unnamed creek and the Woronora River. It is considered that the duration of likely harm lasted until the 19 October 2018, when the clean-up of solid material around the manhole was completed.

1. within 14 days of the date of this order publicise the offences and the orders made against it by tweeting the following text from its Twitter account:

@SydneyWaterNews prosecuted by @NSW_EPA and is convicted of 2 offences for the inadequate clean-up of an overflow of approximately 57,000 litres of untreated sewage into an unnamed creek and towards Woronora River at Bangor in September 2018. Ordered to pay $185,000 in penalties: [insert hyperlink to judgment as published on NSW Caselaw website]

together with a hyperlink directly to the Court’s judgment as published on the New South Wales CaseLaw website (as indicated above) and together with the photograph at annexure C to these orders. The tweet is to be made between the times of 8am and 10am or between 4.30pm and 6.30pm on a weekday. This tweet must remain as a pinned tweet on Twitter that remains at the top of the Sydney Water Twitter page for a minimum of seven days. The Environment Protection Authority may tag Sydney Water’s Twitter account in any Environment Protection Authority tweets about the judgment; and

3. within 14 days of the date of this order publicise the offences and the orders made against it by posting the photograph at annexure C to these orders on its Instagram account together with the following caption:

@sydneywater was prosecuted by @NSW_EPA and is convicted of offences related to inadequate clean-up of an overflow of approximately 57,000 litres of untreated sewage into an unnamed creek and towards Woronora River at Bangor in September 2018. Sydney Water pleaded guilty. The first offence was for failing to take all reasonable and feasible steps to minimise the impact of a sewage overflow as required by its environment protection licence. The second offence was failing to comply with a clean-up notice. Sydney Water was ordered to pay a total of $185,000 in penalties, including $100,000 to Sutherland Shire Council for the Watercourse Rehabilitation and Bush Regeneration Project at Sabugal Gully, Engadine: [insert URL to judgment as published on NSW CaseLaw website] #sydneywater #environment #EPA #NSWEPA #sutherlandshire #bangor

together with an URL to the Court’s judgment as published on the New South Wales CaseLaw website (as indicated above). The post is to be made between the times of 8am and 10am or between 4.30pm and 6.30pm on a weekday. This post must remain on its Instagram account for a minimum of 30 days; and

11. the exhibits are to be returned.

***********

Annexure A – Project Proposal – Watercourse Rehabilitation and Bush Regeneration at Sabugal Gully, Engadine

Prepared for NSW Environment Protection Authority

November 2020

1. INTRODUCTION

1.1 Background

Sutherland Shire is a 370 km² local government area located about 26 km south of Sydney CBD. The urbanised area of the Shire contains over 250 km of freshwater and estuarine creeks, many of which are highly valued by the local community.

Like most urban creeks, the creeks in the Sutherland Shire suffer from the 'urban stream syndrome'. This syndrome is characterised by creeks with 'flashy' hydrology, eroded bed and banks, poor water quality, reduced biodiversity and overall poor amenity. The condition of the urban creeks has a direct impact on the health of the Shire's larger receiving waterways like the Woronora River and Georges River.

In 2013 Sutherland Shire Council completed the Sutherland Shire Watercourse Assessment and Rehabilitation Prioritisation Project (SSWARPP) which assessed and scored over 900 creek reaches across 30 sub-catchments. The project subsequently prioritised creeks for rehabilitation to improve their recreational, environmental and social value.

Council has been implementing the project recommendations as part of its waterway rehabilitation program, starting with high priority reaches. To date over 10 km of creeks have been rehabilitated and are now included in Council's ongoing waterway maintenance program. These programs complement Council's bushcare volunteer program.

1.2 Overview of Subugal Gully

Subugal Gully in Engadine is one of many tributaries of the Woronora River that drain the flatter ridge-top developments in the western suburbs of the Shire through steeper sandstone woodland and gully forest before discharging to the Woronora River.

Despite urbanisation of the upper creek catchment, the 2013 SSWARPP found Subugal Gully and its riparian corridor to be in a fair to stable condition with a high level of ecological resilience (refer Appendix A). Notwithstanding, the condition of the creek has deteriorated over the past 20 years. The steep terrain has also made it difficult to manage this creek under the bushcare volunteer program.

Subugal Gully has not been proactively managed by specialist bush regeneration contractors under Council's waterway rehabilitation program to date, however it has been identified as having a good potential for rehabilitation. Rehabilitation would involve targeting mature weed tree species, revegetation using native species, erosion and sediment control and improving pedestrian access.

Rehabilitation would focus on five reaches located in the upper creek as shown bounded by the red marks in the figure below.

Figure 1. site location and project area

2. PROJECT FRAMEWORK

Council has adopted a logical framework approach in establishing this project to rehabilitate the upper reaches of Sabugal Gully. The project logframe is shown in the table below.

Project Narrative	Proposed Indicators	Means of Verification	Assumptions & Risks
Goal: Attractive, self-sustaining and biodiverse creek and riparian corridor that is valued by the local community	• Ecological health of the creek and surrounding bush land • Long term community satisfaction	• Continued aquatic ecosystem health monitoring • Feedback from Bushcare volunteer • Reporting from bush regeneration contractors • Customer responses	• Reserve is continually maintained
Project Outcome / Purpose: To improve the ecological health of Sabugal Gully creek, riparian corridor and surrounding bushland	• Biodiversity of native flora and fauna • Short-term community satisfaction	• Site assessment by Council staff • Customer response	• Understanding the key issues and processes • Managing residents’ expectations
Project Output: Weed removal, native planting and minor erosion control	• Area of bush regeneration • % of reduction in week cover • Length of rehabilitated waterway	• Project management and reporting	• Contractors can easily report on work completed

The overall goal that this project will contribute to is creating an attractive, self-sustaining and biodiverse creek and riparian corridor that is valued by the local community. This will help achieve Strategy 2.2 and 2.3 of the 2017-2021 Sutherland Shire Community Strategic Plan which are, respectively, to enhance and protect diverse natural habitats and to protect beaches, rivers and oceans.

Indicators for this goal are shown in the above table and have been proposed in Council's Stormwater and Waterways Asset Management Plan (AMP) which has been prepared in accordance with the Integrated Planning and Reporting framework as mandated by the NSW Government. The indicators reflect both community and technical levels of service and have been developed using SMART criteria. Indicator metrics and target values will be developed as part of the Sutherland Shire Catchment and Waterway Management Strategy, currently in preparation, and through future updates to the AMP.

The overall outcome of the project is to improve the ecological health of the creek and its riparian corridor. Specifically, this will encompass:

• restoration of resilient and self-sustaining native bushland with good habitat values

• minimal soil erosion

• improved water quality and aquatic health

• enhanced recreational values

The proposed indicators for these outcomes are shown in the above table.

3. CREEK DESCRIPTION

3.1 Overview

Sabugal Gully rises in the south near Orion Street and Woronora Road, Engadine and flows for approximately 750 m in a northerly direction through a mix of vegetated Crown land, Council land and unformed road reserve, before discharging into the Woronora River at The Needles.

The creek receives stormwater runoff from a catchment that extends southwards towards Cooriengah Heights Road, Buckle Avenue and Tarcoola Place, Engadine. Runoff conveyed by Council's stormwater pit and pipe network contributes to erosion, weed infestation and poor water quality in the creek. The very upper reaches of the creek are particularly degraded as a result.

The bushland reserve through which the creek passes and is well used by local residents and visitors for walking to The Needles on the Woronora River. There are multiple utility services traversing the reserve, the installation and maintenance of which has impacted on the quality of vegetation in the reserve.

Bushcare volunteers have had a long association with the upper parts of the reserve, helping to control weeds and assist with bush regeneration.

3.2 Site Vegetation

Vegetation within Sabugal Gully, its riparian corridor and surrounding reserve is typical coastal sandstone gully forest.

This vegetation community is dominated by a 20-30 m high tree canopy with an average cover of 65%. Prominent tree species include Blackbutt Eucalyptus pilularis, Smooth-barked Apple Angophora costata, Sydney Peppermint Eucalyptus piperita and Cheese Tree Glochidion ferdinandi.

The mid storey is open and contains a mixture of recruitment trees, shrubs and vines. Shrubs include Sydney Golden Wattle Acacia longifolia, Green Wattle Acacia parramattensis, Sunshine Wattle Acacia terminalis, Pine-leaf Geebung Persoonia pinifolia, Christmas Bush Ceratopetalum gummiferum, Coffee Bush Breynia oblongifolia, Pink Spider Plant Grevillea sericea, Needle Bush Hakea sericea and Gymea Lily Doryanthes excelsa.

The ground stratum comprises of a diversity of ferns, grasses, herbaceous forbs and woody shrubs. Ferns are well represented by Soft Bracken Calochlaena dubia, Gristle Fern Blechnum cartilagineum, Harsh Ground Fern Hypolepis muellerii, Maiden Hair Fern Adiantum aethiopicum and Rasp Fem Doodia aspera. Other common groundcovers include Blady Grass lmperata cylindrica, Poa affinis, Kangaroo Grass Themeda australis, Blue Flax Lily Dianella caerulea var. producta, Schoenus melanostachys, Mat Rush Lomandra longifolia, Native Violet Viola hederacea and Scurvy Weed Commelina cyanea. Common vines include Morinda jasminoides, Snake Vine Stephania japonica and Native Sarsaparilla Smilax glyciphylla.

The long term absence of fire since urbanisation and the increase in stormwater runoff has impacted the current vegetation community. There are fewer fire dependant species in the Fabaceae and Proteaceae families as well as a low diversity of wattles, peas and grevilleas.

Conversely, there is an abundance of mesic species, grasses and ferns. Sweet Pittosporum undulatum is an example that is over represented.

The quality of vegetation varies across the site. Generally vegetation condition varies in direct proportion to the width of the riparian zone.

The immediate riparian zone has a greater presence of ferns and water dependant species such as Black Wattle Callicoma serratifolia, Straw Tree Fern Cyathea cooperi, Sweet Pittosporum undulatum, Sandpaper Fig Ficus coronata and Water Gum Tristaniopsis laurina.

Weeds are mostly associated with the adjoining residential properties where species such as Fishbone Fem Nephrolepis cordifolia, Madeira Vine Anredera cordifolia and groundcovers including Tradescantia have spread across property boundaries into the reserve.

4. PROJECT APPROACH

4.1 Overview

Council intends to engage a suitably qualified and experienced bush regeneration contractor to undertake bush regeneration works in Sabugal Gully. Works will involve a combination of vegetation management, soft landscaping and pedestrian access improvements in order to improve the overall environmental and recreational quality of the creek, its riparian corridor and surrounding bushland.

The work area will extend from Woronora Road and Orion Street in the south to about 250 m downstream to the north, as shown in Figure 1 above.

The key project activities and project scope is detailed below and will be confirmed prior to engaging suitable contractor. The contractor will be asked to quote for the works by identifying areas to be treated (most easily on a map supported by site photos), materials required, the number of staff required and the frequency of site visits based on the following general criteria below.

4.2 Weed Control

Herbaceous weeds such as Fishbone Fern Nephrolepis cordifolia, Tradescantia fluminensis and Madeira Vine Anredera dominate the understorey vegetation at some locations and will need to be controlled. Weed control will involve the following work:

• the work area is to be checked prior to treatment of weeds to identify and protect any indigenous species that may be present

• herbaceous weed species are to be removed by a combination of hand tools, hand removal and foliar application of a Glyphosate herbicide used in accordance with the manufacturer's recommendations.

• vines such as Madeira Vine Anredera cordifolia are to be treated by the 'stem scraping technique using undiluted Glyphosate herbicide

• follow-up herbicide treatment is to be undertaken where necessary to assist with the control of persistent weeds

• all weeds that have the potential to become propagules are to be bagged and removed from site

Weed trees such as Willow Salix, Acer Negunda Variegatum, Large Leaved Privet Ligustrum Lucidum and weed vines require removal. All woody weeds trees that are identified for reimoval are to be cut close to ground and treated with undiluted Glyphasate herbicide using the cut and paint' technique.

Stumps and roots are to be retained to assist with creek bank stabilisation. Logs may be dispersed discretely on site.

4.3 In-stream Clearing, Bank Stabilisation and Erosion Control

The increase in impervious area in the upstream catchment has exacerbated the flows in the Creek during rainfall events. Where runoff enters the reserve it has incised a narrow channel in the upper reaches then deposited the sediment further downstream where the creek line has now been partially blocked. The contractor will be required to undertake instream clearing ta possibly widen the channel where practical ta slow the flow velocity and reduce erosion. Further, in-stream clearing will also include removal of tree logs and branches, and debris that block the flow.

Some parts of the creek bank need minor stabilising works to reduce the potential for erosion. The installation of coir logs, coir mesh or other soft engineering works may be appropriate. Creek banks that become exposed following dense weed removal may also require stabilisation.

Diverting flaws where there is bank undercutting or erosion across pedestrian tracks may require some minor soft engineering solutions. Fallen logs, small trees or large rocks within the creek may be repositioned to armour the bank toe and reduce bank erosion. Discretion will need to be exercised to ensure this work does not adversely impact on habitat.

Some pedestrian tracks, such as sections below Glenfem Place, are also a source of erosion. These would benefit from the installation of intermittent steps constructed from sleepers or stone to reduce surface erosion.

When considering bank stabilisation works contractors will need to provide an estimate of the type and quantity of products used, such as coir logs and matting, and the locations and approximate extent of where bank stabilisation or improvements to pathways is proposed.

4.4 Revegetation

Following weed control works, revegetation will be undertaken to stabilise banks and cover bare areas. Erosion control matting and coir logs may be required in steep areas or where the contractor considers matting will suppress persistent weeds.

There are some parts of the creek banks that would benefit from additional planting of sedges, grasses and small trees such as Black Wattle or Lilly Pilli. Additional areas beyond the top of bank provide space for revegetation to improve the vegetation in the riparian zone and surrounding bushland.

Revegetation areas will need to be treated with herbicide if necessary before lightly mulching and planting with appropriate local species. Larger areas would benefit from temporary fencing to exclude deer. This can be discussed at the pre selection site meeting. The contractor will need to estimate the extent of revegetation that may be required and include any proposed revegetation into the schedule of works and costing. The following specifications for revegetation are to be incorporated:

• species are to be selected that are indigenous to the local and surrounding plant communities, with good knowledge and observation skills of species on site being fundamental to plant selection

• plants are to be costed as part of the project

• Council will produce the plants, but species and numbers required will need to be confirmed as early as possible

• plants will be supplied in forestry tube containers and are to be planted in a random fashion to replicate the natural distribution of species in bushland

• Plants are to be marked by a bamboo stake to identify seedlings and reduce inadvertent damage when using herbicide during follow up maintenance

4.5. Debris Removal

All litter and other foreign debris are to be removed from site. Dead and/or fallen trees should only be removed in they are a threat to pedestrians, hinder access and have little habitat value.

4.6 Maintenance

The project will include follow-up maintenance for a period of 12 months after completion of rehabilitation phase of the project. Follow-up maintenance is to include:

• suppression of any re-sprouting from trees that were removed

• weed control

• replacement of failed plants installed during revegetation

• maintenance of soft engineering works such as coir logs or jute/coir matting.

• • removal of any debris blocking creek flows at locations that could cause unacceptable flood impacts

4.7 Project Activities, Schedule and Estimated Cost

The following table details the key project activities, estimated time to complete these activities and estimated cost of the proposed works. The table below also shows proposed measurable project outcomes. The project scope and scheduling will be confirmed prior to engaging a suitable contractor. The unit rates in the table below for various project activities are the average unit rates of similar works completed to date in the Shire.

Key Project Activities	Quality	Unit rate	Estimated hours	Estimated Cost	Measurable Outcomes
Year 1 – Rehabilitation works
• Site establishment (site induction, established photo points)	1	Item	20	$1,000	• Area weeded and rehabilitated-10,000 m2 • % reduction in weed cover compared to overall area of the reserve - 20% • length of waterway rehabilitated - 625 m • Ongoing fo!low up weeding will ensure a measurable reduction in weed cover in all areas. • Pest and Weed Information System (PWIS) will be utilised to record treatments and photographic point records.
• initial herbaceous weed removal	1 ha	$5,000	160	$5,000
• woody weed removal (include plant hire)	1 ha	$15,000	320	$15,000
• in-stream clearing (include cost of excavation hire & plant operator)	625 m	$16	50	$10,000
• bank stabilisation (include supply & install coir logs, jute mats, deer fence)	625 m	$32	160	$20,000
• revegetation ( include supply & install tube stock, large potted trees & initial watering)	5000 plants (approx.)	Item	192	$18,000
• Reporting	1	Item	20	$1,000
Year 1 sub-total			922	$70,000
Year 2 – Follow-up maintenance works
• Weed control • Replacement of failed plants installed during revegetation. • Minor erosion control works • Removal or any debris blocking creek flows and debris in riparian zone.	18 visits (Team of 4, 12 visits between September & March, and 6 visits between April & August	$1667 per visit (approx.)	576 hrs	$30,000	• Area maintained – 10,000 m2
Year 2 sub-total			576	$30,000
TOTAL			1498	$100,000

The project currently include rehabilitation of 625m long waterway and around 1 hectare of bushland. The project can be easily scaled depending on the funding available. lf funding were to be reduced, the length of creek and area of bushland to be rehabilitated would simply be reduced starting from the furthest downstream reach. The length of waterway & area of bushland to be rehabilitated will be reduced and some of the reaches joining the creek such as SGWW004A will not be included.

If funding were to be increased, the length of creek and area of bushland to be rehabilitated would be increased to accommodate more reaches such as remaining length of SGWW005, 06 & 07 and extend the area of bushland to be rehabilitated accordingly. The figure below shows the area of extent with reduced and increased funding.

4.9 Project Management

Council will manage the project from inception to completion. A project working group comprising Council staff from various units will be established to monitor project progress.

Council will prepare the project brief, request and evaluate quotes, and engage a suitable bush regeneration contractor. Council will also prepare a Review of Environmental Factors that will be provided to the contractor as a basis for preparing its own environmental management plan for the works. Council will also prepare a communication action plan outlining how Council and the contractor will engage with the local community and promote the project.

4.10 Ongoing Site Management

Council will continue site maintenance after completion of follow-up maintenance in the second year of the project. Maintenance will be undertaken as part of Council's ongoing waterway maintenance program and bushcare volunteer program.

Maintenance will continue to focus on weed removal and ensuring that native plants are thriving. This could involve an expenditure of up to $30,000 p.a. depending on the ecological condition of the creek. The success of the initial project work and ongoing maintenance will continue to be monitored using the indicators discussed in Section 2.

APPENDIX A-SABUGAL GULLY, ENGADINE, WATERCOURSE ASSESSMENT

Annexure B – Terms of Publication Notice

Sydney Water Corporation Convicted of Offences After Overflow of Raw Sewage into an Unnamed Creek at Bangor

Sydney Water Corporation was prosecuted by the Environment Protection Authority (“EPA”) for one offence of contravening its environment protection licence (“EPL”) and one offence of failing to adequately clean up an overflow of approximately 57,000 litres of raw sewage into an unnamed creek at Bangor near Sutherland, NSW. Sydney Water pleaded guilty to each charge.

On 14 September 2018 a tree root caused a blockage in a sewer pipeline located in bushland causing raw sewage to flow from a maintenance hole in the pipeline into and through bushland down an unnamed creek and towards the Woronora River.

Sydney Water was required by its EPL and the clean-up notice to take all reasonable and feasible actions as soon as practicable to minimise the impact of the overflow but failed to do so. Sydney Water employees were assigned to clean up the overflowed sewage. Instead of first removing the raw sewage remaining on and in the bushland and creek, Sydney Water washed the raw sewage into the unnamed creek. Due to failures in Sydney Water’s instructions and communication the clean-up of the raw sewage in Bangor was not completed for more than four weeks, that is,19 October 2018.

The failure to take all reasonable and feasible actions as soon as practicable to clean up the raw sewage meant that the harm to the environment from the overflow was not mitigated as required, and likely permitted the ongoing pollution of the unnamed creek and the aquatic environment.

On 28 January 2021, the Land and Environment Court of NSW convicted Sydney Water of the offences and ordered Sydney Water to:

1. pay a total monetary penalty of $185,000 for the commission of both offences, including $100,000 to be paid to Sutherland Shire Council for the Watercourse Rehabilitation and Bush Regeneration Project at Sabugal Gully, Engadine;

2. pay $10,758 to the EPA for the EPA’s investigation costs;

3. pay the EPA’s legal costs;

4. cause this notice to be published; and

5. cause similar notices to be published and pinned on Sydney Water Corporation’s Facebook and Instagram accounts.

Annexure C – Photograph

Amendments

02 February 2021 - paragraph [6] - changed "Conditions" to "Condition"

paragraph [115] and Annexure C - formatting corrections

Decision last updated: 02 February 2021