Environment Protection Authority v Sydney Water Corporation

[2019] NSWLEC 100

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100
Hearing dates:	20 and 21 June 2019
Date of orders:	16 July 2019
Decision date:	16 July 2019
Jurisdiction:	Class 5
Before:	Pepper J
Decision:	See orders at [345].
Catchwords:	ENVIRONMENTAL OFFENCE: pollution of waters – breach of environment protection license – plea of guilty – discharge of sewage effluent – sentencing principles – determination of the objective seriousness of the offence – extent of environmental harm – application of De Simoni principle – test for criminal negligence – whether criminally negligent – subjective circumstances of the defendant – prior convictions – discount for early guilty plea – assistance to authorities – comparable cases – monetary penalty imposed – publication orders made, including on social media – costs orders made.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A, 23 Criminal Procedure Act 1986, ss 257B, 257G Protection of the Environment Operations Act, ss 3, 64(1), 120(1), 248, 250
Cases Cited:	Adams v R [2011] NSWCCA 47 Andrews v Director of Public Prosecutions [1937] AC 576 Andrews v R (2006) A Crim R 505 Andrews v Styrap (1872) 26 LT(NS) 704 Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 Bourke v R [2010] NSWCCA 22; (2010) 199 A Crim R 38 Burns v The Queen [2012] HCA 35; (2012) 246 CLR 334 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 Cassidy v The Queen [2012] NSWCCA 68; (2012) A Crim R 420 Chief Executive, Office of Environment & Heritage v Orica Pty Ltd [2015] NSWLEC 109 Chiro v The Queen [2017] HCA 37; (2017) 260 CLR 425 Cittadini v R [2009] NSWCCA 302 Croaker v R [2008] NSWCCA 232; (2008) 190 A Crim R 15 Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 4) [2011] NSWLEC 119 Dyno Nobel Asia Pacific Pty Ltd v Environment Protection Authority [2017] NSWCCA 302; (2017) 228 LGERA 55; Einfeld v R [2010] NSWCCA 87; (2010) 200 A Crim R 1 Elias v The Queen; Issa v the Queen [2013] HCA 31; (2013) 248 CLR 483 Environment Protection Authority v Ampol Ltd (1993) 81 LGERA 433 Environment Protection Authority v Ardent Leisure Ltd (ACN 104 529 106) [2018] NSWLEC 36 Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280; (2008) 163 LGERA 71 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 the Right of New South Wales (Office of Environment and Heritage) [2019] NSWLEC 66 Environment Protection Authority v CSR Building Products Limited [2008] NSWLEC 224 Environment Protection Authority v Custom Chemicals Pty Ltd [2016] NSWLEC 146 Environment Protection Authority v Ecolab Pty Limited [2002] NSWLEC 206; (2002) 123 LGERA 269 Environment Protection Authority v Forbes Shire Council [2014] NSWLEC 26 Environment Protection Authority v Hawkesbury City Council [2017] NSWLEC 39 Environment Protection Authority v Hunter Water Corporation [2016] NSWLEC 76 Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65 Environment Protection Authority v Moolarben Coal Operations Pty Ltd (No 2) [2012] NSWLEC 80 Environment Protection Authority v N (1992) 26 NSWLR 352 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 156 Environment Protection Authority v Sydney Water Corporation [2000] NSWLEC 80 Environment Protection Authority v Sydney Water Corporation [2015] NSWLEC 80 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 Environment Protection Authority v Wollondilly Abattoirs Pty Ltd [2019] NSWLEC 26 Erector Group Pty Ltd v Burwood Council [2018] NSWCCA 56; (2018) 232 LGERA 304 Gordon Plath of the Department of Environment and Climate Change v Fish [2010] NSWLEC 144; (2010) 179 LGERA 386 Gore v The Queen; Hunter v The Queen [2010] NSWCCA 330; (2010) 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 Kassoua v R [2017] NSWCCA 307 King v The Queen [2012] HCA 24; (2012) 245 CLR 588 Liverpool City Council v Leppington Pastoral [2010] NSWLEC 170 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 McCullough, Wilkins v R [2009] NSWCCA 94; (2009) 194 A Crim R 439 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 New South Wales Sugar Milling Co-operative Ltd v Environment Protection Authority (1992) 75 LGRA 320 Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66 Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656 Nydam v R [1977] VR 430 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 R Taktak (1988) 14 NSWLR 227 R v Cowan [1955] VLR 18 R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 R v Dodd (1991) 57 A Crim R 349 R v DP [2019] NSWCCA 55 R v JCW [2000] NSWCCA 209; (2000) 112 A Crim R 466 R v Johnson [2005] NSWCCA 186 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 Stone & Dobinson [1977] 1 QB 354 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Visconti [1982] 2 NSWLR 104 Regina v Moore [2015] NSWCCA 316; (2015) 91 NSWLR 276 Rex v Bateman (1925) 19 Cr App R 8 Roads and Maritime Services v United Petroleum Pty Ltd [2019] NSWCA 41 Ruge and Cormack v R [2015] NSWCCA 153 Thorneloe v Filipowski [2001] NSWCCA 213; (2007) 52 NSWLR 60 Thuong Nguyen v R [2012] NSWCCA 184 Turkmani v R [2014] NSWCCA 186; (2014) 244 A Crim R 402 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 Water NSW v Barlow [2019] NSWLEC 30 Weininger v R [2003] HCA 14; (2003) 212 CLR 629 Wilkins v R [2009] NSWCCA 222
Texts Cited:	Stephen Odgers, The Law of Sentencing in NSW Courts for State and Federal Offences (4th ed, 2015, Longueville Media)
Category:	Sentence
Parties:	Environment Protection Authority (Prosecutor) Sydney Water Corporation (Defendant)
Representation:	Counsel: Mr Henry El Hage (Prosecutor) Mr Ian Hemmings SC with Ms Sharon Hall (Defendant)   Solicitors: Environment Protection Authority (Prosecutor) Maddocks Lawyers (Defendant)
File Number(s):	2018/174230; 2018/174255; 2018/174274

table of contents

Sydney Water Corporation Pleads Guilty to Two Offences of Polluting Waters and One Offence of Breaching its Environmental Protection License

Sydney Water Holds the EPL for the Premises

Background to the Overflow Incidents

The Overflow Structure

Traverse and Prior Desilting Works

The 2017 Desilting Works in SWSOOS1

Flow Isolation Flow Management Plan

Flow Isolations Installed

Commencement of the Desilting Works

The Dry Weather Overflows From 22 May to 6 June 2017 Giving Rise to the First Water Pollution Offence

Volume of the Overflows

The Cause of the Dry Weather Overflows

Sydney Water Becomes Aware of the Overflows

Wet Weather Overflows From 6 to 10 June 2017 That Are Not the Subject of a Water Pollution Charge

The Dry Weather Overflows From 11 June to 16 June 2017 Giving Rise to the Second Water Pollution Offence

The Polluted Waters

Sydney Water Carried Out the Licenced activity in a Less Than Competent Manner (the EPL Offence)

Sydney Water Should Have Investigated the Proposed Diversion

Sydney Water Should Have Monitored the Overflow Structure Once the Flow Isolations Were Installed

Sydney Water Should Have Had a Procedure to Remove Flow Isolations in the Event of an Emergency

Sampling Undertaken

The Clean-Up

Odour

Sentencing Principles

The Purposes of Sentencing

Statutory Matters Required to be Taken into Account in Sentencing

Objective Circumstances of the Offences

Nature of the Offences

Maximum Penalty

Sydney Water’s State of Mind in the Commission of the Offences

The Application of the Principle in De Simoni

The Environmental Harm Occasioned or Likely to be Occasioned by the Commission of the Offences

Mill Stream and Botany Bay

Beachwatch Grading at Foreshore Beach

ANZECC Guidelines

The Water Sampling Results

Actual Environmental Harm Caused by the First Water Pollution Offence

Likely Environmental Harm Caused by the First Water Pollution Offence

Actual Environmental Harm Was Caused by the Second Water Pollution Offence

Likely Environmental Harm Caused by the Second Water Pollution Offence

Environmental Harm Caused by the EPL Offence

Sydney Water’s Reasons for Committing the Offences

Reasonable Foreseeability of the Harm Caused or Likely to be Caused to the Environment by the Commission of the Offences

Control Over Causes

Practical Measures Which Could Have Been Taken to Prevent or Mitigate the Environmental Harm Caused by the Commission of the Offences

Conclusion on Objective Seriousness

Subjective Circumstances of Sydney Water

The Environmental Harm Was Substantial

Contrition and Remorse

Assistance to the EPA

Early Plea of Guilty

Prior Convictions of Sydney Water

The Environmental Harm Caused Was Not Substantial

The Likelihood of Sydney Water Reoffending

The Good Character of Sydney Water

The Offence Could Have Been Prosecuted in the Local Court

Deterrence, Retribution and Denunciation

Consistency in Sentencing

Costs

Totality Principle

Appropriate Sentence

Publication Order

Monetary Penalty Imposed to be Paid to the Bayside Council’s Bushland Restoration and Community Access Improvement Project for Sir Joseph Banks Park and the Environmental Trust

Orders

Judgment

Sydney Water Corporation Pleads Guilty to Two Offences of Polluting Waters and One Offence of Breaching its Environmental Protection License

1. The defendant, Sydney Water Corporation (“Sydney Water”), has pleaded guilty to two offences against s 120(1) of the Protection of the Environment Operations Act (“POEOA”) and one offence against s 64 of that Act.

2. The first charge is for an offence of polluting waters at or near the South Western Sydney Ocean Outfall Sewer Number 1 (“SWSOOS1”) and Lot 1 DP1033284 (“premises”) in Botany in New South Wales between 22 May 2017 and 6 June 2017 inclusive (“first water pollution offence”). The summons charged Sydney Water as follows:

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, between about 22 May 2017 and about 6 June 2017 inclusive, at or near the South Western Sydney Ocean Outfall Sewer Number 1 (SWSOOS1) and Lot 1 DP 1033284 (the Premises) in Botany in the said State, it committed an offence against section 120(1) of the Protection of the Environment Operations Act 1997 (POEO Act) in that it polluted waters.

Particulars

a.   Waters

Mill Stream including within Lot 12 DP787029 and downstream thereof;

b.   Pollutant

i.   raw sewage containing traces of ferrous chloride (FeCl2); and/or

ii.   excreta and urine; and/or

iii.   matter that contains faecal coliform and faecal streptococci.

c.   Manner of breach

The Defendant, as occupier of the Premises, caused the installation of flow isolations on a continuing basis in SWSOOS1, which caused the Pollutant to enter the overflow structure adjacent to Mill Pond, which resulted in the Pollutant entering, or being likely to enter, the Waters or the dry bed of the Waters.

3. The second charge is for an offence of polluting waters at or near the premises between 11 and 16 June 2017 inclusive (“second water pollution offence”). That summons charged Sydney Water with the following:

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, between about 11 June 2017 and about 16 June 2017 inclusive, at or near the South Western Sydney Ocean Outfall Sewer Number 1 (SWSOOS1) and Lot 1 DP 1033284 (the Premises) in Botany in the said State, it committed an offence against section 120(1) of the Protection of the Environment Operations Act 1997 (POEO Act) in that it polluted waters.

Particulars

a.   Waters

Mill Stream including within Lot 12 DP787029 and downstream thereof;

b.   Pollutant

i.   raw sewage containing traces of ferrous chloride (FeCl2); and/or

ii.   excreta and urine; and/or

iii.   matter that contains faecal coliform and faecal streptococci.

c.   Manner of breach

The Defendant, as occupier of the Premises, caused flow isolations to remain in place in in SWSOOS1, which caused the Pollutant to enter the overflow structure adjacent to Mill Pond, which resulted in the Pollutant entering, or being likely to enter, the Waters or the dry bed of the Waters.

4. The third charge is for an offence of breach of a condition of environment protection license 372 (“EPL”), which Sydney Water held in relation to the premises, between 22 May 2017 and 16 June 2017 (“EPL offence”). The summons relevantly charged Sydney Water in these terms:

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 22 May 2017 to about 16 June 2017 inclusive, at or near the South Western Sydney Ocean Outfall Sewer Number 1 (SWSOOS1) and Lot 1 DP 1033284 (the Premises) in Botany in the said State, it committed an offence against section 64(1) of the Protection of the Environment Operations Act 1997 (POEO Act) in that it was the holder of a license, a condition of which was contravened by a person.

Particulars

(a)   License:

Environment Protection License number 372.

(b)   License condition:

Condition O1.1, which states: “Licensed activities must be carried out in a competent manner. This includes:

(a)   The processing, handling, movement and storage of materials and substances used to carry out the activity; and

(b)   The treatment, storage, processing, reprocessing, transport and disposal of waste generated by the activity.”

(c)   Manner of breach:

The Defendant failed to carry out its licensed activities in a competent manner, in that it:

a.   caused maintenance works to remove silt from SWSOOS1 (the Maintenance Works) to be carried out in a manner that was not suitable or adequate to avoid the risk of sewage overflows from the overflow structure in the reticulation system in dry weather;

b.   failed to adequately identify and manage the risk of sewage overflows associated with the installation of flow isolations in SWSOOS1 as part of the Maintenance Works; and

c.   failed to ensure that appropriate monitoring was in place to identify, detect and prevent dry weather sewage overflows during the Maintenance Works,

as a consequence of which, during the period from about 22 May 2017 to about 16 June 2017 inclusive, sewage overflowed through an overflow structure located on or near Lot 6 DP 787029, and into Mill Stream and downstream thereof.

5. Section 120(1) of the POEOA creates the offence of polluting waters:

120 Prohibition of pollution of waters

(1) A person who pollutes any waters is guilty of an offence.

6. “Waters” is defined in the dictionary of the POEOA as:

waters means the whole or any part of:

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

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

7. “Pollution of waters” is relevantly defined in the dictionary of the POEOA as:

water pollution or pollution of waters means:

(a)  placing in or on, or otherwise introducing into or onto, waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, so that the physical, chemical or biological condition of the waters is changed, or

…

(c)  placing in or on, or otherwise introducing into or onto, the waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, that is of a prescribed nature, description or class or that does not comply with any standard prescribed in respect of that matter,…

8. Section 64(1) of the POEOA creates the offence of failure to comply with a condition of an environment protection license:

64   Failure to comply with condition

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

9. Most of the factual matters in dispute were resolved by the filing of, first, a detailed general statement of agreed facts that appended reports, photographs, records and maps, and which set out the complex factual matrix surrounding the commission of the offences. And second, a supplementary statement of agreed facts on environmental harm.

Sydney Water Holds the EPL for the Premises

10. Sydney Water holds the EPL for the scheduled activity of “sewage treatment.” The EPL applies to the premises which are described as:

1. the Southern Suburbs Sewage Treatment System which includes the Malabar Wastewater Treatment Plant (“MWTP”), as well as sewage treatment plants in Fairfield, Glenfield and Liverpool; and

2. the reticulation system owned and operated by Sydney Water that is associated with those plants.

11. The Southern Suburbs Sewage Treatment System and catchment are Sydney’s largest wastewater system and cover the Sydney metropolitan area between the Parramatta and Georges Rivers, extending westward to Homebush and Fairfield and southwest to Campbelltown.

12. At all relevant times, Sydney Water was the occupier of the premises and responsible for the operation, inspection, maintenance and repairs at the premises.

13. Pursuant to Sch 1, cl 36 of the POEOA, the licensed activity of “sewage treatment” means:

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

14. Condition O1.1 requires Sydney Water to carry out activities in a competent manner:

O1.1 Activities must be carried out in a competent manner

O1.1 Licensed activities must be carried out in a competent manner. This includes:

1. The processing, handling, movement and storage of materials and substances used to carry out the activity; and

2. The treatment, storage, processing, reprocessing, transport and disposal of waste generated by the activity.

15. Condition 1.4 of the EPL further provides 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.

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

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

a)   uncontrolled overflows, or

b)   directed overflows other than from sewage pumping stations,

if a cause of the pollution is a failure to:

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

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

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

16. Conditions L 7.2 and L 7.4 of the EPL state:

L7.2 Wet weather overflow limits

Not applicable.

…

L7.4 Dry weather overflows limits

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

17. The expression “dry weather” is defined in the EPL as:

Dry weather occurs when less than 10 millimetres of rainfall has been   

measured at a rain gauge in the catchment of the sewage treatment system

during a 24 hour period (where there is no rain gauge in the catchment, at the rain gauge closest to the centre of the catchment).

18. The expression “wet weather” is defined in the EPL as:

Wet weather occurs when 10 millimetres or more of rainfall has been measured at a rain gauge in the catchment of the sewage treatment system during a 24 hour period (where there is no rain gauge in the catchment, at the rain gauge closest to the centre of the catchment).

Background to the Overflow Incidents

19. The premises include the sewage carriers known as the Southern and Western Suburbs Ocean Outfall Sewer (“SWSOOS”).

20. The SWSOOS consists of SWSOOS1, a single concrete sewer carrier, and two additional concrete twin sewer carriers (which merge at Perry Street to form a single barrel) that carry sewage to the MWTP for treatment (“SWSOOS2”).

21. SWSOOS1 is located between General Holmes Drive, Mascot and McFall Street, Botany. It is a large above-ground trunk sewer, 3.4 m wide by 1.8 m deep which is constructed on a nearly flat gradient. As a consequence of the nearly flat gradient and the sewer design and configuration, the flow becomes slower allowing the silt to more readily settle. The localised accumulation of silt can impede the flow of sewage to MWTP and in wet weather may cause overflows of sewage out of SWSOOS1.

22. SWSOOS2, at the location of the desilting works which gave rise to the commission of the offences (“desilting works”, discussed in more detail below), consists of two closed sewer carriers (south and north) which are 2.8 m wide x 2.0 m deep.

23. SWSOOS1 and SWSOOS2 are connected by cross connection channels at several points to facilitate flow routing or diversions between the sewers.

24. SWSOOS1 also receives flow from the Southern Diversion Sewer which intersects with SWSOOS1 near cross connection 1 adjacent to Mill Pond. A wet weather siphonic overflow structure (“overflow structure”) is located off the Southern Diversion Sewer a few metres from the stop board location known as “SBD113” (discussed further below). The overflow structure is designed to operate in wet weather by acting as a relief outlet when the sewer is reaching capacity.

25. A gauge is installed near the overflow structure and points down into the flow point to measure inflow to the overflow structure (“gauge”). As at May 2017 the gauge was connected to Sydney Water’s remote monitoring network (“IICATS”). Once a day data was transferred to Hydstra (a database used by Sydney Water’s Hydrometrics team for viewing data) which received data from about 200 other gauge locations daily. The gauge data was reviewed approximately twice a week. The gauge data was not subject to live or more frequent monitoring by Sydney Water’s System Operating Centre because the gauge was installed for the purpose of recording when wet weather overflows occurred to satisfy annual reporting requirements on wet weather overflow performance under the EPL.

The Overflow Structure

26. The overflow structure comes off the Southern Diversion Sewer which is connected to SWSOOS1. It is located a few metres upstream of SBD113.

27. The overflow structure activates when flow levels in the sewer reach such a height that flow will overtop the crest of the pipe leading into the overflow structure (known as the “weir crest”). Based on Work-as-Executed (“WAE”) drawings the trigger point at which the overflow structure activates is when flow level depths reach 1.22 m in the Southern Diversion Sewer adjacent to the overflow structure. Based on the WAE drawings this equates to a flow level depth of 1.73 m in the SWSOOS1 near SBD113. As calculated, when flow depth in SWSOOS1 reaches a height of 1.73 m at SBD113 the overflow structure activates.

28. As flow levels rise the overflow becomes siphonic in nature whereby air is pushed out of the overflow structure. Once the siphonic overflow is primed, the rate at which flow travels through the overflow structure increases (about 80 times greater based on a comparison between flows from a gravity weir and a siphonic overflow). The overflow stops when flow levels drop again to a height that allows air to be drawn in to break the siphonic action, which occurs at the height of the weir crest.

29. Wastewater that enters the overflow structure flows through an underground pipe which runs from the overflow structure and discharges out of an outlet into the tidal section of Mill Stream, downstream of Mill Pond weir. The outlet is located inside a culvert which runs under SWSOOS1. The culvert connects Mill Pond to Mill Stream. The outlet is not visible from the site of the desilting works. All wastewater that is discharged from the outlet enters Mill Stream.

Traverse and Prior Desilting Works

30. Periodically Sydney Water conducts a “traverse” of its sewers, which involves manned entry by specialists into the sewer to assess the condition of the sewer.

31. A traverse of SWSOOS1 carried out in November 2011 identified silt accumulations of up to 700 mm at certain locations, prompting the initiation of a project by Sydney Water to clean out and de-silt SWSOOS1. The clean out was to occur in stages.

32. Prior to 2017, SWSOOS1 was last desilted by Sydney Water in 2007. Prior to 2007, SWSOOS1 was last desilted in 2002.

33. SWSOOS2 was last desilted in 2003/2004 for the south carrier and 2004/2005 for the north carrier.

The 2017 Desilting Works in SWSOOS1

34. From approximately October 2016 onwards, Sydney Water undertook a desilting project to restore capacity in SWSOOS1 from the Sydney Airport Grit Pits to Bunnerong Road.

35. The fourth stage of the desilting project was to be carried out in a 250 m section of SWSOOS1 located to the east of Sydney Airport at the southern side of General Holmes Drive up to the access opening adjacent to the roundabout at Hale and Luland Street adjacent to Mill Stream in Botany (“desilting works”).

36. The desilting works commenced on 22 May 2017. At that time, the estimated time to complete the desilting works was about six to eight weeks.

37. The section of SWSOOS1 that was the subject of the desilting works is lined internally to prevent leakage of sewage from joints and cracks. The liner was installed when the sewer was last desilted in 2007. Due to the risk of damaging the liner, Sydney Water determined that the most appropriate method for carrying out the desilting works was manual cleaning by work crews who entered the sewer equipped with shovels and vacuum hoses to manually remove the silt and debris.

38. Veolia Water Technologies Pty Ltd (“Veolia”) was engaged by Sydney Water to perform the desilting works under an existing Waste Management Silt and Debris Removal contract dated 18 June 2010.

Flow Isolation Flow Management Plan

39. In order to carry out the desilting works Sydney Water implemented flow isolations for manned entry (discussed below). These isolations consisted of physical obstructions in the sewer carrier to isolate sections of the carrier from flow. They included stop boards and a coffer dam.

40. Prior to installing flow isolations, Sydney Water requires the preparation of an approved Flow Isolation Flow Management Plan (“FIFM Plan”) which identifies risks and sets minimum controls for planning and implementing flow isolation safely.

41. For the desilting works a FIFM Plan was prepared. The scope of the works as described in the FIFM Plan were:

1. insert stop boards in accordance with the FIFM Plan;

2. build coffer dam downstream;

3. pump out excess water; and

4. enter SWSOOS1 and clean silt.

42. The controls in the FIFM Plan, including the proposed locations of the stop boards, were developed at the Hazard Identification and Risk Assessment (“HIDRA”) meeting on 26 October 2016. The HIDRA meeting attendees comprised:

1. Ms Michelle Howard (Contract Manager - Sydney Water);

2. Mr James Campbell (Contract Officer - Sydney Water);

3. Mr Terry Robinson (Project Manager – Veolia);

4. Mr Cameron Glegg (Project Supervisor – Veolia); and

5. Mr David Birian (Engineer – Veolia).

43. The FIFM Plan was subsequently prepared by Mr Campbell (identified as the FIFM Plan Coordinator). The FIFM Plan was reviewed by Mr Enrico Coiro (a Sydney Water engineer from Networks) and ultimately signed off and approved by Mr David Cantlon (the Sydney Water Acting Area Manager, Networks South) on 9 May 2017. Mr Luke Williams (Veolia Job Supervisor) was the person responsible for the implementation of the FIFM Plan.

44. The FIFM Plan identified the following risks and controls in respect of overflows:

1. “Overflow of SWSOOS1” was a risk due to “High Flows”. The control identified to manage this risk was to:

Monitor weather forecast prior to work. Also periodically check the forecast during work to ensure no rainfall is predicted. Work to be stopped in the event of any rain >20mm in a 24 hour period. Monitor level against upstream stopboards and top of cofferdam. If flow level is approaching top of boards (100mm) stop work and evacuate. Divert SWSOOS1 flow at X-Con 2 allowing storage in SWOOS2 [sic] Sth to be used as well. Should also reduce the potential turbulence caused by both SWSOOS1 and MSD flows being diverted at X-Con 1. This will reduce the activation of the Mill Pond overflow.

2. “Overflow of SWSOOS1” was a risk due to “Reduction of capacity due to SWSOOS1 being offline”. The control identified to manage this risk was to:

Consider informing EPA of the likelihood of increased overflows, through appropriate Networks contacts. If overflow is likely consider removing top couple of boards to allow flow to travel down SWSOOS1.

45. Sydney Water did not expect that dry weather overflows would occur during the desilting works. There was no reference to dry weather overflows in the FIFM Plan.

46. Form I of the FIFM Plan contained the FIFM Monitoring Plan which set out the monitoring required to be undertaken by Veolia during the desilting works. The monitoring plan required the following actions:

Monitor level of SWSOOS 1 against upstream stop boards and downstream Coffer Dame [sic]. If level is approaching top of stop boards or Coffer Dam (100mm), evacuate sewer and wait for level to drop.

BOM weather forecast – Periodically check weather forecast. If heavy rain is predicted consider abandoning work for the day. If required seek Sydney Water assistance/instruction if top couple of stopboards need to be remove [sic] to open up SWSOOS 1 for storage.

47. The FIFM Plan did not identify the height of the weir crest in the overflow structure or the height of flow levels in the sewer at which the overflow structure activates.

Flow Isolations Installed

48. To isolate the working area of the sewer and to enable manned entry by Veolia personnel into SWSOOS1 to carry out the desilting works, flow isolations were installed into SWSOOS1 commencing on 22 May 2017.

49. Flow isolations were achieved by placing two sets of stop boards (about 10 stop boards make up one isolation, with each individual stop board being a wooden board approximately 120 mm in height and weighing between 45 to 120 kg) into SWSOOS1 at stop board locations SBD113 and SBD114 immediately upstream of the site of the desilting works, in order to block flow travelling downstream and divert flow through nearby cross connection 1 into the parallel SWSOOS2 north carrier. Cross connection 1 only connects SWSOOS1 with SWSOOS2 north and does not connect through to SWSOOS2 south.

50. The stop boards were installed to the height of about 1.8 m, approximately 10 cm below the height of the top of the carrier.

51. A further single set of stop boards was inserted in SWSOOS1 about 160 m upstream of the site of the desilting works and the overflow structure, at stop board location SBD102. These stop boards were installed to about three quarters of the height of the carrier and operated to divert normal flow away from SWSOOS1 into SWSOOS2 through cross connection 2, which also connected SWSOOS2 North to SWSOOS2 South.

52. A coffer dam (a temporary dam of stockpiled sandbags) was constructed in SWSOOS1 downstream of the work area to prevent any backflow entering the work area of SWSOOS1.

53. Mr Campbell was on site on 22 and 23 May 2017, to oversee the installation of the stop boards and the coffer dam.

Commencement of the Desilting Works

54. Manned entry into the sewer commenced on 24 May 2017 to begin desilting. Veolia employees were onsite to carry out the desilting works at approximately 6.00-7.00 am each morning until approximately 2.00-3.00 pm each afternoon, between Monday and Friday, during 22 May to 6 June 2017. No work was carried out on weekends.

55. Each morning before commencing works Veolia employees checked SBD114 for signs of overflow over the top of the stop boards. Veolia Flow Monitoring Log Sheets were recorded in respect of checks made of the flow height against SBD114 and the coffer dam during the desilting works for 25, 26, 29, 30 May and 1, 2, 6 June 2017.

56. There were no Flow Monitoring Log Sheets for the remaining nine days within the relevant period, five of which were work days. Sydney Water has not been able to locate records for these days.

57. At the end of work each day the stop boards at SBD113 and SBD114 were not removed. The decision to leave stop boards in place on a continuing basis was made by Sydney Water because:

1. it considered that it would not be appropriate to remove and re-install the stop boards and coffer dam from the carriers and to pump out the isolated work area each morning due to time constraints and the need to undertake the work in a safe manner; and

2. the same method had been successfully employed for desilting works which had occurred further upstream in SWSOOS1 during late 2016 and early 2017.

The Dry Weather Overflows From 22 May to 6 June 2017 Giving Rise to the First Water Pollution Offence

58. From the evening of 22 May to 6 June 2017, intermittent overflows of sewage occurred from the overflow structure each night, discharging directly into the northern weir channel of Mill Stream downstream of Mill Pond weir.

59. During the period 21 May to 6 June 2017, there was no rainfall above 10 mm at any rain gauge owned and operated by Sydney Water within the Southern Suburbs Sewage Treatment System catchment.

60. The material discharged from the overflow structure was sewage with trace quantities of ferrous chloride (FeCI2), a chemical which is used by Sydney Water to control dissolved sulphides in the sewage.

61. Neither Sydney Water nor Veolia staff on site during the desilting works observed any signs of the overflows.

62. Gauge data revealed that the overflow structure was activated and that sewage was discharged into Mill Stream during the time periods in the table below. The gauge data from 10.00 am on 19 May 2017 to 1:38 pm on 30 May 2017 was not recorded because the battery in the gauge was flat.

63. Accordingly, the italicised entries in the table below are based on extrapolated gauge data. The extrapolated gauge data was calculated by taking flow levels from nearby gauges and adjusting those levels to derive approximate flow levels at which the overflow structure was activated.

Date and time overflow commences (2017)	Date and time overflow ceases (2017)
Monday 22 May at 21.36	Tuesday 23 May at 2.00
Tuesday 23 May at 21.27	Wednesday 24 May at 2.10
Wednesday 24 May at 13.52	Wednesday 24 May at 18.50
Wednesday 24 May at 20.50	Thursday 25 May at 2:00
Thursday 25 May at 21:52	Friday 26 May at 0:01
Friday 26 May at 21.52	Saturday 27 May at 1:21
Saturday 27 May at 14.31	Sunday 28 May at 1:55
Sunday 28 May at 17:30	Sunday 28 May at 21:00
Monday 29 May at 21:21	Tuesday 30 May at 2:00
Tuesday 30 May at 21:40	Wednesday 31 May at 1:28
Wednesday 31 May at 21:45	Thursday 1 June at 1:35
Thursday 1 June at 21:58	Friday 2 June at 1:05
Friday 2 June at 21:21	Saturday 3 June at 0:54
Saturday 3 June at 16:05	Sunday 4 June at 0:31
Sunday 4 June at 18:38	Monday 5 June at 1:09
Monday 5 June at 21:11	Tuesday 6 June 1:13

Volume of the Overflows

64. Subsequent to the identification of the sewage overflows at Mill Stream, Sydney Water utilised two methods to calculate the estimated volume of sewage discharged into Mill Stream during the period 22 May to 6 June 2017:

1. first, by using a mass balance approach which compared the differences in inflow volumes at MWTP shortly prior to the incident to that during the incident. Sydney Water estimated that approximately 168 million litres (“ML”) of sewage was discharged into Mill Stream during the dry weather overflows of 22 May to 6 June 2017. To account for uncertainties and variabilities in the calculation method Sydney Water applied a margin of uncertainty of +/- 14%. When that margin was applied the overflow volume was in the range of 145 ML – 192 ML; and

2. second, by using hydraulic modelling Sydney Water calculated that between 151 ML and 334 ML of sewage was discharged during the incident. The wide range in this estimate accounts for uncertainty as to whether the overflow structure was in siphonic flow or not. If the overflow structure was in full siphonic flow during the overflows then the volume of sewage discharged would likely be at the upper end of the estimated range.

65. The dry weather discharge of sewage from the overflow structure between 22 May and 6 June 2017, prior to the onset of rainfall late in the evening of 6 June 2017, was not authorised by the EPL.

66. All of the sewage discharged from the overflow structure entered the tidal section of Mill Stream and flowed downstream into the waters of Botany Bay.

The Cause of the Dry Weather Overflows

67. The overflows were caused by the continuing presence of stop boards SBD113 and SBD114 in SWSOOS1 between 22 May and 6 June 2017, together with a number of additional contributing factors. Those factors were:

1. the daily peak dry weather volume of sewage flowing in the SWSOOS during the evenings on both weekdays and weekends;

2. the height of stop boards SBD113 and SBD114 compared to the height of the weir crest on the overflow structure; and

3. the capacity of cross-connection 1 and SWSOOS2 to transfer and receive peak dry weather flows without triggering overflows from the overflow structure.

68. It was not in dispute that there were no other known reportable incidents in the SWSOOS catchment from the beginning of May to 6 June 2017 that could have contributed to the discharge and pollution which occurred in Mill Stream and the immediate area of Botany Bay into which Mill Stream discharges.

Sydney Water Becomes Aware of the Overflows

69. As stated above, at the time of the incident the gauge on the overflow structure was not utilised by Sydney Water for monitoring any overflows during the desilting works. Veolia had been monitoring the height of the flow against the stop boards SBD113 and SBD114 based on an incorrect assumption that the flow would overtop the stop board before it reached the height of the weir crest in the overflow structure.

70. As also stated above, on 19 May 2017, that is three days before the desilting works commenced, the battery in the gauge on the overflow structure expired.

71. The flat battery caused the gauge to stop recording data. The fault was not detected as part of Sydney Water routine inspections of gauge data on 22, 24 and 29 May 2017.

69. On 30 May 2017, the flat battery was identified and replaced on the same day resulting in the recording of flow data from the time of its replacement.

70. On 5 June 2017, upon a routine inspection of data from the gauge, Mr Paul McVicar of Hydrometrics Services at Sydney Water, noticed that the gauge was indicating that the weir crest level had been overtopped and the overflow structure was active. Mr McVicar emailed Ms Howard (Project Manager at Sydney Water) at 8.37 am on 5 June 2017 with the subject line “SWSOOS1 desilting work – Dry Weather Overflows” to inform her that the data from the gauge was “indicating instances of sewer overflow at night”. He attached a screen shot of plot data.

71. Because there was a gap in data from the gauge (due to the flat battery) until 30 May 2017, a team was sent to check the accuracy and functionality of the gauge the following morning on 6 June 2017.

72. At about 7.45 am on 6 June 2017, Mr McVicar’s team, together with Ms Howard, attended the site of the desilting works to inspect the gauge and confirmed that it was operating correctly. Odour and evidence of sewage overflows were identified by Ms Howard in Mill Stream weir in the vicinity of the overflow structure.

73. Ms Howard observed that the water downstream of the weir to which the outlet of the overflow structure discharged was a light brown colour and several wet wipes were floating in the water.

74. Ms Howard and Mr Coiro held a series of phone conversations between approximately 9.00 am to 11.00 am on 6 June 2017, including with Veolia staff and Mr Cantlon, and a decision was made to remove the top three stop boards from SBD113 and SBD114 at the conclusion of that work day. This decision was based on predictions of wet weather in the following days, the weir crest height in the overflow structure, and the need to reduce the height of the stop boards at SBD113 and SBD114 to a level at which peak dry weather flows could pass over the top without activating the overflow structure.

75. Following this decision Sydney Water instructed Veolia to remove three stop boards from SBD113 and SBD114 thereby reducing the height of the stop boards from 1.8 m to 1.5 m, that is, below the height of the weir crest on the overflow structure. It was believed that by reducing the height of the stop boards to below the height of the weir crest on the overflow structure flow would travel downstream through SWSOOS1 instead of diverting out through the overflow structure.

76. Because the stop boards remained in SWSOOS1 to a height of 1.5 m, Sydney Water did not remove the coffer dam from SWSOOS1 on 6 June 2017. Removal of the coffer dam would take place if all of the stop boards were programmed for removal that day. This was because if the coffer dam was not also removed there was a risk that the unimpeded flow could sweep the coffer dam into the MWTP and damage infrastructure.

77. Sydney Water declared an incident at 4.49 pm on 6 June 2017 and suspended the desilting works.

78. The EPA was notified of the incident at 4.58 pm that day.

Wet Weather Overflows From 6 to 10 June 2017 That Are Not the Subject of a Water Pollution Charge

82. Late in the evening of 6 June 2017, rain began to fall in the SWSOOS catchment. On the morning of 7 June 2017, under Sydney Water’s instructions, Veolia commenced clean-up and began to pump out sewage water back to the SWSOOS1 from the site of the overflow at Mill Stream. However, pumping was suspended that morning due to the onset of heavy wet weather. The overflow structure was again activated due to rain.

83. Wet weather overflows occurred into Mill Stream between the evenings of 6 and 10 June 2017. Wet weather overflows from the overflow structure are not prohibited by the EPL, however, the hydraulic modelling indicates that the wet weather overflows which occurred between the evenings of 6 June to 10 June 2017 were exacerbated by the continuing presence of the stop boards at SBD113 and SBD114.

84. During the period above there was heavy rain (over 10 mm recorded at individual rain gauges) in the Southern Suburbs Sewage Treatment System catchment. Once wet weather conditions were present in the system Sydney Water was unable to remove the stop boards or coffer dam because the working conditions were unsafe to do so.

85. Sydney Water hydraulic modelling estimated that approximately 683 ML of sewage and stormwater was discharged from the overflow structure into Mill Stream between the evenings of 6 to 10 June 2017.

86. Sydney Water modelling also simulated overflows in the same scenario but with no stop boards in place. The model estimated that with no stop boards 535 ML of wastewater would have been discharged. Therefore, Sydney Water’s modelling indicated that due to the presence of SBD113 and SBD114, an additional 148 ML of wastewater was discharged into Mill Stream during the wet weather overflows commencing on the evening of 6 June and continuing into the evening of 10 June 2017.

The Dry Weather Overflows From 11 June to 16 June 2017 Giving Rise to the Second Water Pollution Offence

87. Rain in the SWSOOS catchment ceased by 11 June 2017. However, the overflow structure continued to activate and sewage continued to intermittently overflow into Mill Stream and into Botany Bay for a further five days until 16 June 2017. Although there was less than 10 mm of rain recorded in the SWSOOS catchment during the period between 11 and 16 June 2017, high level flow conditions from the wet weather were still present in the system until 16 June 2017, and therefore, the stop boards or coffer dam could not be removed until 16 June 2017.

88. Again, Sydney Water modelling indicated that had there been no stop boards in place an estimated 16 ML of sewage and stormwater would have been discharged from the overflow structure over 11 and 12 June 2017 due to the previous wet weather which had a lag time to pass through the system.

89. The EPL does not recognise this lag effect in the definition of “wet weather” and “dry weather”. Due to the partial isolations in place caused by the 1.5 m stop boards at SBD113 and SBD114, Sydney Water modelling indicated that an estimated 189 ML of sewage was discharged into Mill Stream during this period.

90. Therefore, between 11 and 16 June 2017 dry weather overflows occurred discharging an estimated 173 ML of sewage from the overflow structure into Mill Stream. These overflows were not authorised by the EPL.

91. The causes of the 173 ML dry weather overflows into Mill Stream are the same as the causes for the previous dry weather overflows (discussed above). Had the stop boards been totally removed on 6 June 2017, it is estimated that the overflow volume would have only been 16 ML of wastewater.

92. The stop boards and coffer dam were totally removed from SWSOOS1 on 16 June 2017, when it was deemed safe by Sydney Water for Veolia workers to enter the sewer.

The Polluted Waters

93. The dry weather overflows the subject of the charges caused sewage to discharge from the outlet of the overflow structure into Mill Stream. The sewage flowed down Mill Stream and into the waters of Botany Bay.

94. The length of Mill Stream encompasses several separate parcels of land owned by a mixture of both State and Commonwealth entities as follows:

1. public road reserve owned by Bayside Council (formerly Lot 12 DP 787029);

2. Lot 13 DP 787029 owned by the Commonwealth; and

3. Lot 401 DP787029 owned by the Commonwealth, encompassing the section of Mill Stream downstream of Foreshore Drive and adjacent to Sydney Airport runway, and which is incorporated into the leased area for Sydney Airport and regulated under the Airports Act 1996 (Cth) and the Airports (Environment Protection) Regulations 1997 (Cth) made under that Act.

95. The waters polluted as a result of the dry weather overflows the subject of the charges include the waters of Mill Stream, to the extent that they are not owned by Commonwealth, and the downstream waters of Botany Bay.

96. The section of SWSOOS1 that was being desilted is located on land owned by Sydney Water. The overflow structure manhole and weir crest where the overflowing sewage left the Southern Diversion Sewer is located on land owned by Bayside Council. The overflowing sewage travelled through the overflow structure pipework from Bayside Council land onto Commonwealth land. At least some of that pipework is located on Commonwealth land. The outlet of the pipe that discharged into the Mill Stream stormwater channel at a point adjacent to and under the cover of SWSOOS1 is located on Commonwealth land.

Sydney Water Carried Out the Licenced activity in a Less Than Competent Manner (the EPL Offence)

97. The removal of silt and associated works are part of operating the sewage treatment system to which the EPL applies.

98. The parties agreed that the risk of dry weather sewage overflows into Mill Stream as a result of the desilting works was a foreseeable and material risk and was not appropriately considered and mitigated by Sydney Water.

99. The parties further agreed that a competent operator would have:

1. investigated whether the flow diversion proposed at this location could be carried out without causing dry weather overflows;

2. monitored the overflow structure during desilting works to confirm that overflows were not occurring once the flow isolations were installed; and

3. had a clear written procedure to determine when the coffer dam and stop boards would need to be removed.

Sydney Water Should Have Investigated the Proposed Diversion

100. As part of the FIFM Plan Sydney Water ought to have, but did not:

1. confirm the height of the weir crest in the overflow structure which is the height of flow levels in the sewer at which the overflow structure activates. Such information was readily available to Sydney Water;

2. review or monitor sewer flow data from any gauge in SWSOOS1 or SWSOOS2 to determine the pattern or timing of peak sewer flow height in SWSOOS1. Sydney Water assumed that peak dry weather flows occurred mid-morning which was incorrect because sewer gauge data in SWSOOS1 indicated that peak dry weather flows typically arrived each day in the late evening; and

3. consider, for example by carrying out hydraulic modelling, the condition and capacity of cross-connection 1 and SWSOOS2 north to transfer and carry flows from SWSOOS1 and the Southern Diversion Sewer without the flow depth increasing above the weir crest level. Instead, Sydney Water relied on the diversion of flows from SWSOOS1 to SWSOOS2 working successfully for the earlier desilting work carried out upstream in SWSOOS 1.

101. Each is discussed in greater detail immediately below.

102. Sydney Water obtained a Traverse Report of SWSOOS2 in April 2015. The traverse was undertaken in November 2014. The report made a number of conclusions in the Executive Summary, including that:

…apart from a major silt bank downstream of Perry St elsewhere silt levels were generally considered moderate. Some lengths had intermittent silt banks which averaged 150-200mm in depth, with up to 600mm found within bends on the alignment of the sewer. For these remaining areas, silt levels currently do not have any adverse effect on the operational capacity of the sewer, however should be monitored in subsequent inspections to determine when action needs to be undertaken to remove silt.

…

Major work is required within this section of sewer inspected over the next 10 years with the extent of work and required timing as set out below.

Sewer Description and Location	Length	Rehabilitation Timing	Estimate Cost
• Protective coating of SWSOOS 2 North and South Cells between Exell Street and Botany Goods Railway (including removal of silt). • Protective coating of SWSOOS 2 North and South Cells between Cooks River Syphon and Hayden (including removal or silt). • Projective coating of two flat roof areas in tunnel Perry St and Malabar STP.	5 km	0-3 years	$ 30m
• Protective coating of SWSOOS 2 from Perry Street to Dacre Street within Malabar STP (including removal of silt)	2 km	8-10 years	$ 25m

Sydney Water Should Have Monitored the Overflow Structure Once the Flow Isolations Were Installed

103. During the desilting works Sydney Water did not:

1. direct or require the use of any gauges owned and operated by Sydney Water to monitor flows in the sewer or for dry weather overflows occurring at the overflow structure;

2. check that the gauge was functioning prior to commencing works;

3. direct or require Veolia to carry out specific monitoring (whether visual or otherwise) of the overflow structure; or

4. direct or require any monitoring for overflows to be carried out when no workers were on site after hours or on weekends.

104. Sydney Water directed and required Veolia to monitor the height of the flow at stop boards SBD113 and SBD114 during working hours based on the incorrect assumption that:

1. the height of the stop boards SBD113 and SBD114 was lower than the weir crest of the overflow structure, and therefore, wastewater would overtop the stop boards before it would overtop the weir crest. Whereas, the height of the weir crest was lower than the height of the stop boards at SBD113 and SBD114;

2. peak dry weather flows occurred about mid-morning (peak dry weather flows in SWSOOS1 in fact typically occurred in the late evening); and

3. workers outside of the SWSOOS carrier would notice dry weather overflows in siphonic mode occurring during the day.

Sydney Water Should Have Had a Procedure to Remove Flow Isolations in the Event of an Emergency

105. The decision on 6 June 2017 to remove only the top three stop boards was made based on the knowledge that dry weather overflows had already occurred for the past five nights (at a minimum).

106. Sydney Water did not have a clear written procedure to determine when the coffer dam and all of the stop boards (not merely the top three) would need to be removed.

Sampling Undertaken

107. At approximately 5.00 pm on the evening of 6 June 2017, Sydney Water directed its Field Sampling and Testing team (“FST”) to attend the site of the overflow to conduct an assessment. The FST arrived at Mill Stream at approximately 5.45 pm and water samples were undertaken from eight locations including the Mill Pond weir, several points downstream in Mill Stream, and at Foreshore Beach in Botany Bay.

108. Faecal coliform and enterococci sampling data showed elevated levels of both within Mill Stream. Elevated concentrations of both also existed where Mill Stream confluences with Botany Bay. Bacteriological levels were also elevated at Foreshore Beach.

109. On the evening of 6 June 2017, the FST provided clean-up recommendations to Sydney Water including pumping polluted waters from Mill Stream back into the sewer before the next tide and installing warning signage at the confluence of Mill Stream and Botany Bay until bacteriological results indicated no sewage.

110. Signage was installed by Sydney Water near the boat ramp at Foreshore Beach in Botany Bay on 6 June 2017, to alert the public to the presence of sewage in the water.

111. Mr Coiro visited the area at the confluence of Mill Stream and Botany Bay near Foreshore Beach on either 6 or 7 June 2017, and observed residual sewage material including sanitary items along the edge of the shore. Mr Coiro was, however, unable to determine whether the observed residual sewage material emanated from the wet weather overflow events that occurred prior to the desilting works.

112. Further sampling was undertaken by Sydney Water on 17 June 2017. Between sampling rounds, Sydney Water considered that the rain and wet weather overflows that occurred from 7 June 2017 would have caused any samples collected during that period to be unrepresentative due to the Antecedent Wetness Index (“AWI”) being greater than five. The AWI is a measure of catchment wetness based on the rainfall that has occurred over preceding days. The FST does not ordinarily sample in conditions where the AWI is greater than five.

113. The sampling results taken on 17 June 2017 by the FST at the same eight locations showed elevated bacteriological levels that were indicative of the presence of sewage within Mill Stream and Botany Bay.

114. The FST continued water quality sampling in certain locations in Mill Stream and Botany Bay twice a week until 20 July 2017. The results of the water quality sampling were provided to the EPA each week.

115. Bacteriological results continued to be elevated during sampling undertaken during 23 to 26 June 2017, before gradually decreasing to background levels.

116. The results of the water sampling are discussed in further detail below as part of the consideration of the environmental harm caused by the commission of the offences.

The Clean-Up

117. The desilting works were suspended on 6 June 2017 and have not been recommenced by Sydney Water.

118. On 18 June 2017, on instruction from Sydney Water, Veolia commenced the pump out of the polluted water in Mill Stream which continued until 6 July 2017. An estimated 190 ML of sewage contaminated water was pumped from Mill Stream back into the sewage network. Pumping could only occur for about 12 hours each day when the tide was high enough to enable pumping on the downstream side of the weir at Mill Pond.

119. Sydney Water carried out the flushing of Mill Stream by opening a stand pipe which discharged water into a storm water channel flowing into the northern end of Mill Stream.

120. In addition to the FST sampling, Sydney Water engaged JSA Environmental Pty Ltd to undertake an environmental assessment and to provide advice on the impact of the overflows and the required clean-up action. The environmental assessment was completed on 21 June 2017.

121. On 22 June 2017, the EPA issued a clean-up notice to Sydney Water pursuant to s 92 of the POEOA requiring it to clean up sewage contaminated water of all affected areas of Mill Stream and to undertake water quality sampling and analysis twice a week at least three days apart until water quality reached background levels.

122. Clean-up along Mill Stream at low tide was completed by Veolia on 23 and 24 June 2017, using an excavator and manual brooming to remove solids from the creek bed and to move clean sand to cover sewage contaminated sand exposed at low tide.

Odour

123. On 18 June 2017, Sydney Water self-reported odour issues to the EPA which were thought to be the result of residual wastewater from the overflows at the overflow structure.

124. On 22 June 2017, Sydney Water engaged JBS&G Australia Pty Ltd (“JBS&G”) to carry out odour monitoring and surveillance in the Botany area commencing on 22 June 2017 and to assess the mitigation of odour during the clean-up process. The odour monitoring and surveillance continued until JBS&G concluded that no further odour emission measurements or odour surveys were required to be carried out.

Sentencing Principles

The Purposes of Sentencing

125. The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”):

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.

Statutory Matters Required to be Taken into Account in Sentencing

126. In addition to the matters set out in Div 1 of the CSPA, the POEOA sets out the factors which are required to be taken into account when sentencing offences committed under that Act. Section 241(1) and (2) of the POEOA relevantly provides that:

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.

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

127. Subsections 21A(2) and (3) of the CSPA also set out 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,

(b)   the offence was not part of a planned or organised criminal activity,

…

(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)…

128. Section 21A(4) of the CSPA states that, “the court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so”.

129. The appropriate sentence to be imposed on Sydney Water is to be determined by an instinctive synthesis of all of the relevant objective and subjective circumstances of the commission of the offences (Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357).

130. Importantly, the sentence to be imposed on Sydney Water for the offences must be proportionate to both the objective seriousness or gravity of the offence and Sydney Water’s subjective circumstances (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).

131. Further, Although Sydney Water's plea of guilty to all three charges entails acceptance of the proof beyond reasonable doubt of the elements of each offence, the Court must not take facts into account in a manner that is adverse to Sydney Water unless those facts have been established beyond reasonable doubt by the EPA. But if there are circumstances that the Court proposes to take into account in Sydney Water’s favour, it is enough that these circumstances are proved on the balance of probabilities (Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103; (2014) 206 LGERA 239; R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27] and Gore v The Queen; Hunter v The Queen [2010] NSWCCA 330; (2010) 208 A Crim R 353 at [105]).

Objective Circumstances of the Offences

132. 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 its objective circumstances (Veen v The Queen (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).

133. 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 v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27]).

134. In determining the objective seriousness or gravity of the offences the relevant objective circumstances include the factors discussed below.

Nature of the Offences

135. 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 v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [168]-[169], Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [49] and Chief Executive, Office of Environment and Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 at [59]).

136. The relevant objects of the POEOA contained in s 3 of that Act identify the rationale in Parliament creating the offences.

137. In respect of the first and second water pollution offences, as Preston J stated in Environment Protection Authority v Baiada Poultry Pty Ltd [2008] NSWLEC 280; (2008) 163 LGERA 71, “pollution of waters is a result offence where the proscribed result directly undermines the object of the [POEOA]” (at [23]).

138. In relation to the EPL offence, as the EPA submitted, environmental protection licenses are the primary means of regulation under the POEOA and the commission of the offence therefore undermined the statutory scheme set out in that Act. In Orica Australia (the Nitric Acid Air Lift Incident) 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.

139. Sydney Water’s conduct during the desilting works breached condition O1.1 of the EPL because it failed to undertake the works in a “competent manner”. thereby contravening s 64(1) of the POEOA. The transgression was clearly incompatible with the regulatory regime and the objects of the POEOA, especially with respect to the protection of the environment (see, in particular, s 3(d)) (Orica Australia (the Nitric Acid Air Lift Incident) at [105]).

Maximum Penalty

140. The maximum penalty provided for an offence indicates the seriousness with which the legislature views the commission of the offence (Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 and Rawson at [57]). It also provides a sentencing yardstick for the case before the Court (Markarian at [31] and Elias v The Queen; Issa v the Queen [2013] HCA 31; (2013) 248 CLR 483 at [27]).

141. The maximum penalty for an offence against s 120(1) of the POEOA by a corporation is $1,000,000.

142. The maximum penalty for an offence against s 64(1) of the POEOA by a corporation is also $1,000,000.

Sydney Water’s State of Mind in the Commission of the Offences

The Application of the Principle in De Simoni

143. The offence under s 120(1) of the POEOA is one of strict liability. The principle in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 (at 389) applies to offences committed under s 120(1) of the POEOA, and therefore, the Court is precluded from considering Sydney Water’s state of mind for the s 120(1) offences by reason of the existence of a more serious water pollution offence under s 116 of the POEOA (Environment Protection Authority v Tea Garden Farms Pty Ltd [2012] NSWLEC 89 at [101]-[102]; Environment Protection Authority v Snowy Hydro Ltd [2008] NSWLEC 264; (2008) 162 LGERA 273 at [145]–[151]; Environment Protection Authority v Queanbeyan City Council(No 3) [2012] NSWLEC 220; (2012) 192 LGERA 415 at [178] and Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) at [127]-[139]). Accordingly, the Court cannot consider whether the first and second water pollution offences were committed intentionally, recklessly, or negligently by Sydney Water.

144. Sydney Water made the same submission with respect to the commission of the s 64 offence, citing the Court’s decision in Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident). Sydney Water argued that having regard to whether or not it acted negligently in the commission of the EPL offence offended the De Simoni principle because it would amount to sentencing it for a more serious crime than that to which it had pled guilty, namely, an offence against s 116 of the POEOA.

145. Section 116 of the POEOA relevantly provides that:

116   Leaks, spillages and other escapes

(1)     If a person wilfully or negligently causes any substance to leak, spill or otherwise escape (whether or not from a container) in a manner that harms or is likely to harm the environment:

(a)     the person, and

(b)     if the person is not the owner of the substance, the owner, are each guilty of an offence.

(2)     If:

(a)     the person in possession of the substance at the time of the leak, spill or other escape, or

(b)    the owner of any container from which the substance leaked, spilled or escaped, or

(c)     the owner of the land on which the substance or any such container was located at the time of the leak, spill or other escape, or

(d)     the occupier of the land on which the substance or an such container was located at the time of the leak, spill or other escape,

wilfully or negligently, in a material respect, caused or contributed to the conditions that gave rise to the commission of the offence under subsection (1), that person, owner or occupier is guilty of an offence.

146. In Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) the Court summarised the De Simoni principle as follows (at [131]):

131   The rule against punishment for a higher offence than that which the defendant has been charged was set out in R v De Simoni ("the De Simoni principle") per Gibbs CJ (at 389 and 392):

However, the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted. Section 582 reflects this principle. The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.

At common law the principle that circumstances of aggravation not alleged in the indictment could not be relied upon for purposes of sentence if those circumstances could have been made the subject of a distinct charge appears to have been recognized as early as the eighteenth century

...

It is not only in cases in which the offence has been accompanied by circumstances of aggravation that a trial judge may be required, in sentencing, to take an artificially restricted view of the facts. This will be so also in cases where the jury's verdict is inconsistent with the view of the facts that the judge himself has formed, for the judge cannot act on a view of the facts which conflicts with the jury's verdict. However, where the Crown has charged the offender with, or has accepted a plea of guilty to, an offence less serious than the facts warrant, it cannot rely or ask the judge to rely, on the facts that would have rendered the offender liable to a more serious penalty.

147. In that case, the Court’s conclusion that having regard to the offender’s mental state at the time of the commission of the s 64 offence did not offend the principle was explained in the following way (at [140]-[145]):

140. However, the parties disagreed as to whether Orica's state of mind could be taken into account in relation to the breach of licence offence under s 64(1) of the POEOA. Orica submitted that its breach of licence condition under s 64(1) caused a polluting substance to 'escape' to the environment and because s 116(1) of the POEOA also prohibits the escape of pollutants into the environment and is a more serious offence (maximum penalty $5 million) involving the aggravating circumstance of 'wilfully or negligently' causing that escape 'in a manner that harms or is likely to harm the environment', the De Simoni principle applied.

141.    The authorities are equivocal on this question. In Environment Protection Authority v Rethmann Australia Environmental Services Pty Ltd [2003] NSWLEC 351; (2003) 131 LGERA 422, the Court appeared to apply the De Simoni principle to a breach of licence (at [53] per Talbot J).

142.    The EPA submitted that Rethmann was wrongly decided on this point and relied upon several decisions of this Court that have considered, contrary to the approach in Rethmann, the state of mind of the offender in relation to a licence condition breach under s 64(1) of the POEOA (Environment Protection Authority v Transpacific Industries Pty Limited; Environment Protection Authority v Transpacific Refiners Pty Limited [2010] NSWLEC 85 at [98] and Environment Protection Authority v Lithgow City Council [2007] NSWLEC 695 at [35]-[39]).

143. In none of the decisions above was the issue squarely raised by the parties and thus properly considered by the Court. I agree with the submission by Orica that there is nothing in the text or context of either the POEOA or the CSPA that discloses a legislative intention to abrogate the De Simoni principle from theoretical application to s 64(1) of the POEOA (indeed s 21A(4) appears to embrace it).

144. However, the principle has no practical application with respect to a breach of s 64(1) of the POEOA because there is no 'more serious offence' of breaching a licence condition than that with which Orica has been charged and has pleaded guilty to. Accordingly, to take into account whether or not Orica breached a condition of its licence negligently is not to infringe the principle. While the De Simoni principle is not narrowly confined to situations where there is another specific offence in aggravated form that is otherwise identical to the offence in question, the offences must nevertheless be of the same general character. Were it otherwise, it would, given the potential breadth of the acts and omissions giving rise to the commission of an offence contrary to ss 115 and 116 of the POEOA, preclude an examination of the state of mind of an offender in most of the strict liability offences created by the POEOA.

145.    In my opinion, therefore, the De Simoni principle does not apply to a breach of licence offence under s 64(1) of the POEOA because there is no more serious aggravated form of that general character of offence in the POEOA. Therefore it is open to me to consider whether Orica's state of mind in committing this offence was negligent.

148. For the reasons that follow, I have determined that the reasoning (but not the conclusion) in Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) was wrong, if not plainly wrong (although the extent to which the rules of comity apply when a judge departs from one of their earlier decisions is debatable). Obviously this is not a position that I come to lightly (the decision has been criticised elsewhere: see fn 559 in Stephen Odgers, The Law of Sentencing in NSW Courts for State and Federal Offences (4th ed, 2015, Longueville Media), p 184). But as Bramwell B remarked in Andrews v Styrap (1872) 26 LT(NS) 704 (at 706), “the matter does not appear to me now as it appears to have appeared to me then” (quoted by Preston J in Roads and Maritime Services v United Petroleum Pty Ltd [2019] NSWCA 41, albeit in a civil context).

149. In Cassidy v The Queen [2012] NSWCCA 68; (2012) A Crim R 420, Basten JA alluded to the difficulties that can arise in applying the principle (at [1]-[3]):

1.    BASTEN JA: This application provides another example of the difficulties which can arise in applying the principles articulated by the High Court in The Queen v De Simoni [1981] HCA 31; 147 CLR 383. The relevant principle, as explained by Gibbs CJ (with the agreement of Mason and Murphy JJ) is that a sentencing judge cannot take into account a factor which would constitute an element of a more serious offence than the one with which the offender was charged and of which he was convicted, or to which he has pleaded guilty: at 389. That principle, derived from provisions of the Criminal Code (WA), was said to find support in the general law (as discussed at pp 389-391) and has been consistently applied on that basis in this State. That principle continues to be applied, despite the statutory obligation to take into account aggravating factors which do not constitute elements of the offence: Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act"), s 21A(2). The justification for that course is the countervailing obligation not to have regard to any aggravating factor if to do so would be contrary to any rule of law, statutory or otherwise: s 21A(4).

2.    The difficulties which can arise in the application of the De Simoni principle have been discussed on a number of occasions in this Court and need not be revisited here: see McCullough v R [2009] NSWCCA 94; 194 A Crim R 439 at [38]-[39] (Howie J, McClellan CJ at CL and Simpson J agreeing); Bourke v R [2010] NSWCCA 22; 199 A Crim R 38 at [46]-[54] (McClellan CJ at CL) and [60]-[72] (RA Hulme J) and Einfeld v Regina [2010] NSWCCA 87; 200 A Crim R 1 at [135]-[138].

3.    A particular difficulty arises in the circumstance (not uncommon) in which the conduct which constitutes an element of the offence charged also constitutes an element of a more serious offence. Thus, in De Simoni, the relevant element of the offence was committing a robbery "with actual violence". The violence was constituted by a blow to the back of the head of the victim, which inflicted a wound to the scalp. The Court held that the blow could be taken into account, but not its consequence, to the extent that it involved wounding, because there was a further offence, with a greater punishment, involving the element of wounding, with which the offender was not charged. As explained by Brennan J (in dissent) at 403:

"To omit consideration of the personal violence done to Mrs Scott is to omit consideration of conduct constituting an essential element of the offence to which the respondent had pleaded guilty. The prosecutor's statement of facts did not disclose any use of actual violence or any threat to use actual violence to Mrs Scott other than the blow upon her head .... It was accepted that ... the hitting of Mrs Scott was thus the only actual violence to which that allegation in the indictment related."

1. providing it with detailed modelling and analysis of the incident.

Early Plea of Guilty

296. Sydney Water entered a plea of guilty at the earliest available opportunity. It is therefore entitled to the full 25% discount for the utilitarian value of its plea.

Prior Convictions of Sydney Water

297. Prior convictions are an aggravating factor under s 21A(2)(d) of the CSPA. On the other hand, a lack of significant prior convictions can act as a mitigating factor under s 21A(3)(e) of the CSPA.

298. Sydney Water has four prior convictions for similar offences. The EPA has also accepted a number of enforceable undertakings given by Sydney Water, however, because these are not criminal convictions they are irrelevant for the purposes of s 21A(2)(d).

299. First, on 21 April 2015 Sydney Water was convicted of an offence against s 120 of the POEOA and an offence against s 64(1) of the POEOA in respect of an incident at the MWTP (the Malabar Beach case).

300. Second, on 21 July 2000 Sydney Water was convicted of an offence of pollution of waters contrary to s 16(1) of the Clean Waters Act 1970 in respect of an overflow of sewage from a manhole in Helensburgh to Camp Creek on 12 October 1998 (Environment Protection Authority v Sydney Water Corporation [2000] NSWLEC 156).

301. Third, on 3 March 2000 Sydney Water was convicted of an offence of pollution of waters contrary to s 16(1) of the Clean Waters Act (Environment Protection Authority v Sydney Water Corporation [2000] NSWLEC 80). During the operation of its West Camden Sewage Treatment Plant on 22 to 23 October 1998, approximately 7,000-8,000 L of aluminium sulphate was discharged into a tributary of a creek.

302. Finally, on 12 November 1998 Sydney Water was convicted of an offence against cl 17D(9) of the Pollution Control Act 1970 for contravention of a condition of a pollution control licence requiring it to maintain and operate plant and equipment in a proper and efficient manner and condition (Environment Protection Authority v Sydney Water Corporation [1998] NSWLEC 144). The incident involved a cliff face discharge at North Head Sewage Treatment Plant.

303. Sydney Water submitted that apart from the 2015 conviction, its prior convictions related to different premises and to conduct which occurred almost twenty years ago.

304. Sydney Water urged the Court to adopt a similar approach as that taken by Preston J in the Malabar Beach case (at [83]-[84]):

83 Sydney Water has had four prior convictions over the last 20 years. The most recent conviction related to conduct in 1998, about 15 years before the conduct giving rise to the current offences in 2013. The prior offences related to different plants and different infrastructure to the Plant at Malabar. The causes of, and circumstances giving rise to, the prior offences were different to the causes of, and circumstances giving rise to, the current offences. The consequences of the offences, including the nature and extent of environmental harm caused, in each case was different to one another and to the current offence. In these circumstances, I do not consider that Sydney Water's prior convictions manifest a continuing attitude of disobedience of the law or that Sydney Water has not been deterred from reoffending by the sentences imposed for the prior offences, or that it has a propensity to reoffend. I do not view Sydney Water's record of prior convictions as an aggravating factor: s 21A(2)(d) of the CSP Act.

84 On the other hand, it cannot be viewed as a mitigating factor under s 21A(3)(e) of the CSP Act. Sydney Water does have a record of four prior convictions for environmental offences arising from its operation of the sewerage system in Sydney. It cannot be treated as a first time offender or as an offender with little criminal history.

305. Sydney Water also emphasised the “sheer size” of its operation in relation to the handing and treatment of effluent. It submitted that its prior criminal record should have a neutral effect on its sentence and that the prior conviction neither manifested a continuing attitude of disobedience nor a propensity to reoffend, and that therefore, this should not be considered to be an aggravating factor.

306. I disagree. In circumstances where the offences have been committed in reasonable temporal proximity to the Malabar Beach case, it is appropriate to view the prior convictions as an aggravating factor. In so determining I am mindful of the statement of the plurality in Veen (No 2) (at 477):

…the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences.

307. I therefore take into account its prior convictions as an aggravating factor in sentence, which also means that Sydney Water cannot benefit from any mitigation pursuant to s 21A(3)(e) of the CSPA.

The Environmental Harm Caused Was Not Substantial

308. Given my earlier finding that the harm caused by the commission of the offences was substantial, s 21A(3)(a) of the CSPA does not apply to mitigate any sentence likely to be imposed.

The Likelihood of Sydney Water Reoffending

309. Given Sydney Water’s prior criminal record, I find that there is a likelihood, albeit relatively low, that it will reoffend (s 21A(3)(g) of the CSPA). In arriving at this conclusion, I am mindful of Mr Hurley’s evidence that Sydney Water had a number of controls in place to manage the risk of harm to people, the environment, and infrastructure during the flow isolations necessary for the desilting works. These controls were outlined in the FIFM Plan. Furthermore, shortly after becoming aware of the incident Sydney Water commissioned a detailed review of the incident and the FIFM process and improved its monitoring of the SWSOOS.

The Good Character of Sydney Water

310. Despite its prior convictions, I find that Sydney Water is of good corporate character. In his affidavit, Mr Hurley detailed the extensive community work undertaken by Sydney Water, including the delivery of the following projects:

1. a partnership with the Parramatta River Catchment Group to make the Parramatta River swimmable by 2025;

2. an infrastructure project to eliminate the need for Sydney Water to discharge raw sewage into the ocean at Vaucluse and Diamond Bay (which it is currently licensed to do);

3. an extensive infrastructure upgrade project to improve beach and harbour quality and the development of water quality models of Sydney Harbour and Botany Bay;

4. partnerships with local councils to better treat stormwater before it enters waterways to improve waterway and wetland health;

5. education programs in local primary schools to inform students about Sydney Water’s systems and the challenges associated with water management;

6. participation in educational events such as the Australian Museum Science Festival, Youth Eco Summit, and NSW Geography and Science Teachers Association conferences;

7. conducting public tours of treatment plants and heritage sites owned by Sydney Water;

8. “Brand Without a Bottle”, a program aimed to promote tap water in schools;

9. “Beat the Bottle”, a campaign to reduce bottled water usage;

10. partnerships with 25 local councils to deliver 170 permanent water stations in public places;

11. a fleet of 50 portable water stations which it provides at events;

12. contributions to the Climate Change Fund for the “WaterSmart Cities” program totalling $6.38 million;

13. a drought response water efficiency campaign called “Love Water Don’t Waste It” to promote water saving behaviour; and

14. a community grants program to support projects in areas such as health and wellbeing, education and environment, safety, arts and heritage.

The Offence Could Have Been Prosecuted in the Local Court

311. In Harris (at [92]) the Court of Criminal Appeal held that this Court must take into account whether the offence could have been prosecuted in the Local Court. While I have taken this factor into account, I place limited weight on it given the complexity of the present proceedings.

Deterrence, Retribution and Denunciation

312. The Court is required to take into account both specific and general deterrence (Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 (at 569 per Brennan J).

313. The penalty imposed by the Court must serve as a general deterrent (Environment Protection Authority v Crown in the Right of New South Wales (Office of Environment and Heritage) [2019] NSWLEC 66 at [175]-[177] and see s 3A(b) of the CSPA).

314. The Court accepts that embedded with the determination of the appropriate sentence to be imposed on Sydney Water must be an element of general deterrence to ensure that operators of large scale sewerage utilities do so in a competent manner that does not harm the environment.

315. In relation to specific deterrence (s 3A(b) of the CSPA), Sydney Water submitted that there was no need for this element to be considered in the imposition of an appropriate penalty in this case because “compliance with the environmental laws of this State and the protection of the environment form a fundamental element of Sydney Water’s day to day operations” and that, therefore, “Sydney Water is acutely aware of its responsibilities.”

316. While this may be so, Sydney Water has a history of prior offending. In addition, it continues to operate the Southern Suburbs Sewage Treatment System and other similar systems. Accordingly, consideration of specific deterrence is necessary (Environment Protection Authority v Ravensworth Operations Pty Limited [2012] NSWLEC 222 at [48] and Environment Protection Authority v Whitehaven Coal Mining Limited [2019] NSWLEC 27 at [251]).

Consistency in Sentencing

317. The task of the sentencing court is to seek even-handedness in the imposition of a sentence (R v Oliver (1980) 7 A Crim R 174 at 177 and R v Visconti [1982] 2 NSWLR 104 at 107C). However, care must be taken in achieving consistency. There is always difficulty comparing the penalty in one case with that in another because of the wide divergence of facts and circumstances in each case (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 365). The sentence imposed in a single case does not demonstrate the limits of a sentencing court's discretion (Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at [35] and Environment Protection Authority v Barnes [2006] NSWCCA 246 at [79]).

318. The EPA relied on three cases where an offender was sentenced for pollution of waters (s 120(1) under the POEOA) and a breach of an EPL (s 64(1) under the POEOA).

319. The first was the Malabar Beach case. The offences in that case related to the discharge over two days of treated effluent which leaked from a split joint in an effluent pipe into the ocean at a location not authorised by the EPL. A significant volume of treated effluent was discharged (at least 117,000 to 500,000 L), but there was no evidence of actual environmental harm to marine organisms, ecological communities, or human health. The beach was closed to the public for two days. Overall, Preston J found the harm to be substantial but the objective seriousness to be in the “low to moderate range.” Sydney Water was ordered to pay $78,750 for each offence after discounting for an early plea of guilty and the application of the totality principle.

320. Second, Environment Protection Authority v Hawkesbury City Council [2017] NSWLEC 39, which involved a discharge of sewage (approximately 643,840 L) from a council’s sewage treatment plant over two charge periods from 16 to 20 July 2015 and from 6 to 9 August 2015, to a nearby nature reserve and into a watercourse. The Court found no evidence of actual harm, but that there was likely temporary harm to the aquatic environment of the watercourse from the July incident and a potential risk to the public from the August incident. The objective seriousness of the July incident was found to be at the low end of the moderate range and the objective seriousness of the August incident was found to be at the high end of the low range. The Council had no prior convictions. The offender was ordered to pay a total of $175,000 to National Parks and Wildlife Service ($119,000 for the July incident and $56,000 for the August incident) after discounting for various mitigating factors and the application of the totality principle.

321. Third, Environment Protection Authority v Forbes Shire Council [2014] NSWLEC 26, where the offender discharged approximately 11,261 KL of effluent containing septic waste and manure from its commercial livestock saleyard facility into a stormwater drain and then into an ephemeral creek on a neighbour’s land and into two farm dams along that creek. The offender pleaded guilty to a charge of polluting waters in breach of s 120 of POEOA and to a charge of failing to immediately notify the relevant authorities of the pollution incident in contravention of s 148 of the POEOA. There was no evidence of actual harm to the environment, however, there was a risk of harm to public health with the possible presence of human pathogens in a public area, a risk of blue-green algal blooms in the dams, and a risk of cattle on the adjacent land being infected with bovine paratuberculosis. Justice Pain found the offence to be in the medium range of objective seriousness given its duration and the “complete absence of appropriate decision-making capacity and knowledge in the Defendant”. The offender had no prior convictions and was given a 25% discount for its early guilty plea. It was fined $130,000.

322. Sydney Water provided the Court with a table of comparable cases summarising the sentencing considerations and penalties imposed in nine cases:

1. the Malabar Beach case;

2. Environment Protection Authority v Custom Chemicals Pty Ltd [2016] NSWLEC 146;

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

4. Dyno Nobel Asia Pacific Pty Ltd v Environment Protection Authority [2017] NSWCCA 302; (2017) 228 LGERA 55;

5. Environment Protection Authority v CSR Building Products Limited [2008] NSWLEC 224;

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

7. Moolarben Coal Operations Pty Ltd (No 2);

8. Environment Protection Authority v Ardent Leisure Ltd (ACN 104 529 106) [2018] NSWLEC 36; and

9. the Crown in the Right of New South Wales case.

323. Sydney Water drew the Court’s attention to three decisions in particular:

1. first, Dyno Nobel Asia Pacific, where the offender, a chemical manufacturer, caused wastewater to discharge onto farm land due to a faulty valve. The offence resulted in the death of five cattle. The offender was fined $300,000 for a breach of s 120(1) of the POEOA and $60,000 for a breach of s 64(1) of the POEOA after discounting for an early plea of guilty and other mitigating factors. Sydney Water sought to distinguish this case on the basis that the harm was substantially greater than the harm caused in the present case;

2. second, Custom Chemicals, where the offender deliberately and repeatedly pumped pollutant into a pond and creek without a license permitting the discharge. The offence was held to be of medium objective seriousness. The offender was ordered to pay $360,000 after discounting for an early plea of guilty; and

3. third, Hunter Water Corporation, where the offender was charged with multiple offences under ss 120(1) and 64(1) of the POEOA for the discharge of an acidic substance into a watercourse over a four month period. The actual environmental harm was considered not substantial but the duration of the offending led the Court to find that the objective seriousness was moderate. The offender had six prior convictions, although these were considered to have a neutral effect on the sentence imposed. The offender was fined $75,000 for the first s 120(1) offence, and $37,500 for each subsequent offence.

324. I have read each of the cases referred to me by the parties and I have compared them with the facts and circumstances of the present case.

Costs

325. Sydney Water agreed to pay the EPA’s investigation costs fixed in the sum of $3,267.60 pursuant to s 248 of the POEOA.

326. Sydney Water has also agreed to pay the EPA’s professional costs, however, these have not been agreed. Because there was no agreement between the parties, under s 257B of the Criminal Procedure Act 1986 the professional costs will need to be assessed under s 257G(b) of that Act.

327. While it is legitimate to take into account any associated costs order in determining the appropriate penalty to be imposed (Harris at [100], Barnes (at [78]) and Environment Protection Authority v Causmag Ore Company Pty Ltd [2015] NSWLEC 58 at [123]), an order for costs does not result in a reduction in any monetary penalty imposed to an amount lower than that suggested by the general pattern of sentencing for the relevant offence (Liverpool City Council v Leppington Pastoral [2010] NSWLEC 170 at [50]).

328. In the present case, while the EPA’s professional costs payable by Sydney Water were not, in the absence of agreement as to quantum, able to be quantified, evidence was nevertheless before the Court to indicate that these costs would be sizable, and were likely to be in excess of $100,000 inclusive of GST.

Totality Principle

329. Because there are multiple offences arising out of the same conduct, the totality principle applies. In Orica (the Nitric Acid Air Lift Incident) the Court discussed the totality principle and its application at length (at [224]-[229]. More recently, see Water NSW v Barlow [2019] NSWLEC 30 at [111]-[112]). Those principles are relied upon without repetition in these proceedings.

330. It is therefore appropriate to reduce the penalties for the second water pollution offence and the EPL offence by applying the totality principle.

331. It was also submitted by Sydney Water, and I accept and take into account, that but for the period of rainfall in between the first and second water pollution offences resulting in the discharge becoming temporarily lawful under the EPL, the first and second offence would have in fact constituted a single continuing offence.

Appropriate Sentence

332. Having regard to the objective seriousness of the offence and the mitigating subjective factors of Sydney Water, together with the penalties imposed in the relevant comparable cases, I consider that the appropriate sentence to be imposed for the first water pollution offence is a monetary penalty of $250,000.

333. Given that I have found that the objective seriousness of the second water pollution offence to be less than that of the first, the appropriate sentence to be imposed for the second water pollution offence is a monetary penalty of $150,000.

334. Finally, for the EPL offence the appropriate sentence to be imposed on Sydney Water is a monetary penalty of $200,000.

335. These figures must be discounted by 30% for the utilitarian value of Sydney Water's early plea of guilty and other factors in mitigation as follows:

1. $175,000 for the first water pollution offence;

2. $105,000 for the second water pollution offence; and

3. $140,000 for the EPL offence.

336. The second water pollution offence and the EPL offence must be further reduced to $52,500 and $42,000 respectively, after the application of the totality principle.

337. The total monetary penalty imposed on Sydney Water for the commission of the three offences is therefore $269,500.

Publication Order

338. Pursuant to s 250(1)(a) of the POEOA the parties have agreed to a publication order being made. The details of the publication order have been agreed and are set out in the orders and in Annexure “A” to this judgment.

339. Having regard to the circumstances of this case, I find that the making of a publication order is appropriate, including that the commission of the offences and the penalty imposed be publicised on social media (it is, after all, 2019). Initially Sydney Water opposed the extension of the publication order to various social media platforms on the basis that adverse commentary (trolling) could not be controlled or moderated by it. However, as was accepted during the hearing, adequate steps can be taken to prevent any comments from being posted or disseminated further.

Monetary Penalty Imposed to be Paid to the Bayside Council’s Bushland Restoration and Community Access Improvement Project for Sir Joseph Banks Park and the Environmental Trust

340. The parties have agreed, and I consider it appropriate that, pursuant to s 250(1)(e) of the POEOA a portion of the monetary penalty imposed by the Court is to be paid to Bayside Council for the purposes of the Sir Joseph Banks Park Bushland Restoration and Community Access Improvement Project as described in Annexure “B” to this judgment (“the project”).

341. The EPA has submitted that an order be made that all future public references made by Sydney Water to its contribution to the project, until 12 months after the date the project is completed, are to be accompanied by the statement that:

Sydney Water Corporation’s contribution to the Sir Joseph Banks Park Bushland Restoration and Community Access Improvement Project is part of a penalty imposed by the Land and Environment Court after Sydney Water Corporation was convicted of two offences against s 120(1) (water pollution) and one offence against s 64(1) (breach of licence condition) of the Protection of the Environment Operations Act 1997 (NSW).

342. There was no opposition to this course by Sydney Water.

343. Accordingly, $150,000 of the total monetary penalty imposed on Sydney Water is to be paid to Bayside Council for the purpose of the project in the manner described above.

344. The parties further submitted that any additional monetary penalty not paid to Bayside Council (that is, the remaining $119,500) should be paid to the Environmental Trust established under the Environmental Trust Act 1998 for general environmental purposes pursuant to s 250(1)(e) of the POEOA. Again, I consider that such an order is appropriate in the circumstances of this case.

Orders

345. In conformity with the reasons given above, the Court makes the following orders:

In proceedings 174230 of 2018

1. Sydney Water Corporation (“Sydney Water”) is convicted of the offence against s 120(1) of the Protection of the Environment Operations Act 1997 (“POEOA”) as charged;

In proceedings 174255 of 2018

2. Sydney Water is convicted of the offence against s 120(1) of the POEOA as charged;

In proceedings 174274 of 2018

3. Sydney Water is convicted of the offence against s 64(1) of the POEOA as charged;

In proceedings 174230 of 2018, 174255 of 2018 and 174274 of 2018

4. pursuant to s 250(1)(e) of the POEOA, Sydney Water is to pay the amount of $150,000 to Bayside Council within 28 days of this order for the purposes of the Sir Joseph Banks Park Bushland Restoration and Community Access Improvement Project as described in Annexure “B” to these orders (“the project”);

5. all future public references made by Sydney Water to its contribution to the project, until 12 months after the date the project is completed, are to be accompanied by the following statement:

Sydney Water Corporation’s contribution to the Sir Joseph Banks Park Bushland Restoration and Community Access Improvement Project is part of a penalty imposed by the Land and Environment Court after Sydney Water Corporation was convicted of two offences against s 120(1) (water pollution) and one offence against s 64(1) (breach of licence condition) of the Protection of the Environment Operations Act 1997 (NSW).

6. pursuant to s 250(1)(e) of the POEOA, Sydney Water is to pay the amount of $119,500 to the Environmental Trust established under the Environmental Trust Act 1998 within 28 days of the date of this order for general environmental purposes;

7. pursuant to s 248(1) of the POEOA, Sydney Water is to pay the Environment Protection Authority’s (“EPA”) reasonable costs and expenses incurred during the investigation of the offences agreed in the sum of $3,267.60;

8. pursuant to s 257B of the Criminal Procedure Act 1986, Sydney Water is to pay the EPA’s professional costs as may be determined under s 257G of that Act;

9. pursuant to s 250(1)(a) of the POEOA, Sydney Water, at its expense, is to:

1. within 28 days of the date of this order, cause a notice of a minimum size of 10 cm x 18 cm to be published within the first five pages of The Sydney Morning Herald, The Daily Telegraph and the Southern Courier, with the text of such notice to be that as set out in Annexure “A” to these orders; and

2. within 42 days of the date of this order, provide to the EPA a copy of the entire page of each of The Sydney Morning Herald, The Daily Telegraph and Southern Courier on which the notice was published in accordance with the order (9)(a) above;

10. pursuant to s 250(1)(a) of the POEOA, Sydney Water is to:

1. within 14 days of the date of this order, publicise the offences and the orders made against it by posting the text of Annexure “A” to these orders on its Facebook wall, together with a hyperlink directly to the Court’s judgment as published on the New South Wales Caselaw website and tagging the EPA in the post;

2. 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 convicted of 3 offences involving the discharge of up to approximately 507 million litres of untreated sewage into Mill Stream, Botany in May and June 2017. Ordered to pay $269,500 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

3. within 21 days of the date of this order, publicise the offences and the orders made against it by posting a photo of Sir Joseph Banks Park on its Instagram account with the following caption:

@sydneywater was prosecuted by @NSW_EPA and convicted of 3 offences involving the discharge of up to approximately 507 million litres of untreated sewage into Mill Stream, Botany in May and June 2017. Sydney Water pleaded guilty to 2 offences of water pollution and 1 offence of breaching its environment protection licence. Sydney Water was ordered to pay a total of $269,500 in penalties, including $150,000 to Bayside Council for the Sir Joseph Banks Park (pictured) Bushland Restoration and Community Access Improvement Project. Sydney Water apologises to the community for these untreated sewage discharges and has implemented actions in an effort to prevent recurrence of the circumstances leading to the offences. Sydney Water takes its responsibility to protect the environment and public health very seriously: [insert url to judgment as published on NSW Caselaw website]

#sydneywater #sydneyparks #sirjosephbankspark #cleanup #community #botany #botanybay #waterways #foreshorebeach #environment

together with a url to the Court’s judgment as published on the New South Wales Caselaw website (as indicated above);

11. if the parties identify any practical constraints with the Facebook, Instagram or Twitter platforms in connection with the implementation of order 10 the parties have liberty to restore the proceedings on three days’ notice to seek further orders; and

12. the exhibits are to be returned

Annexure A (38.0 KB, pdf)

Annexure B - 2019 EPA Proposal Sir Joseph Banks Bushland Restoration and Community Access Improvement Project Re (6.32 MB, pdf)

**********

Amendments

31 March 2022 - Removal of duplicate cases listed on the coversheet and in the Judgment.

Decision last updated: 31 March 2022