Environment Protection Authority v Sydney Water (No 2)

[2023] NSWLEC 2

Land and Environment Court

New South Wales

Medium Neutral Citation:

Environment Protection Authority v Sydney Water (No 2) [2023] NSWLEC 2

Hearing dates:

5 December 2022

Date of orders:

1 February 2023

Decision date:

01 February 2023

Jurisdiction:

Class 5

Before:

Moore J

Decision:

See orders at [147]

Catchwords:

SENTENCE ‑ charge of pollute waters ‑ overflow of sewage pumping station caused during repair of split rising main ‑ overflow of untreated sewage from pumping station into waterway ‑ Defendant convicted after trial on “not guilty” plea ‑ consideration of the extent of the environmental harm caused by the offending conduct - the offending conduct to be characterised as being toward but not at the lowest end of the low range of offending conduct - consideration of the appropriate starting penalty - a proposal that portion of the appropriate starting penalty be diverted to a local environmental project in the vicinity of the location where the pollution incident occurred - appropriate to order funding contribution for the environmental project - appropriate to order publication of a notice in the Daily Telegraph for educative and deterrence purposes - appropriate to order letter of apology signed by the Defendant's Managing Director to occupants of residences potentially adversely impacted by the additional pollution for which the Defendant has been convicted - no valid reason why the Defendant should not be ordered to pay the Prosecutor's costs of the proceedings with any dispute as to how those costs were to be disentangled from the overall costs of the liability proceedings to be addressed through a conventional costs assessment process - total monetary penalty of $200,000 of which $45,000 is to be paid to Fairfield City Council as a contribution toward the cost of the Quest Avenue Vegetation Swale Project proposed to be undertaken by that Council - a moiety of the residue of the financial penalty (being 50% of $155,000) to be paid to the Prosecutor pursuant to s 122 (2) of the Fines Act 1996

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A and 22

Criminal Procedure Act 1986, ss 257B and 257G

Fines Act 1996, s 122

Protection of the Environment Operations Act 1997

Cases Cited:

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

Budvalt Pty Ltd v Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2022] NSWCCA 9

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

Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd (2013) 199 LGERA 236; [2013] NSWLEC 185

Chief Executive, Office of Environment and Heritage v Ausgrid (2013) 199 LGERA 1; [2013] NSWLEC 51

Environment Protection Authority v Australian Waste Recyclers 1 Pty Ltd [2005] NSWLEC 739

Environment Protection Authority v Barnes (2006) NSWCCA 246

Environment Protection Authority v Cleanaway Equipment Services Pty Ltd [2022] NSWLEC 40

Environment Protection Authority v Forbes Shire Council [2014] NSWLEC 26

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

Environment Protection Authority v Sydney Water [2022] NSWLEC 100

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

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

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

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

Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 17

Environment Protection Authority v Timber Industries Ltd [2001] NSWLEC 25

Environment Protection Authority v Unomedical Pty Limited (No 4) [2011] NSWLEC 131

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

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

Markarian v R (2005) 229 CLR 357; [2005] HCA 25

Mohindra v R [2020] NSWCCA 340

Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96

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

R v O’Neill (1979) 2 NSWLR 582

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

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

Secretary, Department of Planning, Industry and

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

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

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

Category:

Sentence

Parties:

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

Representation:

Counsel:
Mr E Muston SC/Mr R Ranken, barrister (Prosecutor)
Ms s Hall SC (Defendant)

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

File Number(s):

11341 of 2020

Publication restriction:

No

TABLE OF CONTENTS

Introduction

The relevant statutory provisions

Introduction

The POEO Act

The Crimes (Sentencing Procedure) Act 1999

The Fines Act 1996

The Criminal Procedure Act 1986

Representation

The Statement of Agreed Facts on Sentencing

Matters in dispute

The evidence

The extent of the harm

Introduction

The matters arising from s 241 of the POEO Act

Introduction

The Prosecutors submissions

Sydney Water’s submissions

Consideration

The position advanced by Sydney Water

Sydney Water’s subjective factors

Introduction

The harm caused by the offence ‑ s 21A(3)(a)

Sydney Water’s record of previous convictions ‑ s 21A(3)(e)

Is Sydney Water an entity of good character? ‑ s 21A(3)(f)

Is Sydney Water likely to reoffend? ‑ s 21A(3)(g)

Contrition and remorse ‑ s 21A(3)(i)

Characterisation of Sydney Water’s offending conduct

Introduction

Two cautionary matters

Introduction

The confined scope of the charge

The failure to close the diversion valve

The Prosecutor's submissions

Submissions for Sydney Water

Consideration

Deterrence

Introduction

Specific deterrence

General deterrence

Comparability in sentencing

Introduction

The Prosecutor's submissions

Sydney Water’s submissions

Consideration

The appropriate penalty

The Prosecutor’s written submissions

Sydney Water's submissions

Consideration

Funding a local environmental project

Publication order

The Prosecutor’s position

Sydney Water's position

Consideration

An apology to potentially impacted waterfront residents

Payment of a moiety of the fine to the Prosecutor

Payment of the Prosecutor’s investigation costs

Costs of the proceedings

The Prosecutor's position

Sydney Water's position

Consideration

Orders

Annexure A

Terms of Publication notice

Annexure B

Letter to residents

Judgment

Introduction

1. On 14 January 2019, a sewer rising main split at Carramar, a suburb in south‑western Sydney. Over the following period of a little over 36 hours, staff of Sydney Water Corporation (Sydney Water) removed the split section of pipe and replaced it. The complex process of achieving this resulted in untreated effluent being discharged not only from the split pipe, but also from a nearby sewage pumping station located in Carrawood Reserve (the Reserve). This pumping station had needed to be shut down as part of the process of stemming the effluent flow in the split main in order to effect its repair.

2. As a consequence of this incident, the Environment Protection Authority (the Prosecutor) charged Sydney Water with three offences, alleging breaches of the Protection of the Environment Operations Act 1997 (the POEO Act). Those offences were:

1. A charge of “pollute waters” in breach of s 120(1) of the POEO Act as a consequence of untreated effluent escaping through the split in the pipe crossing the Reserve and flowing into Prospect Creek (Charge 1);

2. A second charge of “pollute waters” arising from the discharge of untreated effluent from the sewage pumping station which had been shut down. This discharge was via an overflow pipe from the wet well of the pumping station into Prospect Creek (Charge 2); and

3. A charge alleging a failure to maintain equipment in breach of a condition of Sydney Water's Environment Protection Licence issued by the Prosecutor for the Southern Suburbs Sewage Treatment System, of which the rising main was a part. This charge was laid pursuant to s 60(1) of the POEO Act (Charge 3).

3. Sydney Water pleaded not guilty to all three charges.

4. I heard the liability hearing over 10 days, concluding on 16 December 2021 with final written submissions on 11 March 2022. On 11 August 2022, I found Sydney Water not guilty of Charges 1 and 3 but guilty of Charge 2. My reasons for so concluding were set out in Environment Protection Authority v Sydney Water [2022] NSWLEC 100.

5. As a consequence, a hearing to sentence Sydney Water for the conduct giving rise to Charge 2, for which it has been convicted, was held on 5 December 2022. This decision arises from that hearing.

The relevant statutory provisions

Introduction

6. Provisions of four statutes require consideration in this decision. The relevant provisions of each of those statutes is set out below.

The POEO Act

7. A number of provisions of the POEO Act are here engaged. The first of them is the provision which sets out the objects of the Act:

3   Objects of Act

The objects of this Act are as follows—

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

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

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

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

(i)   pollution prevention and cleaner production,

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

(iia)   the elimination of harmful wastes,

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

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

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

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

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

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

8. The second of them is the provision which creates the offence for which Sydney Water has been convicted:

120   Prohibition of pollution of waters

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

(2)   In this section—

pollute waters includes cause or permit any waters to be polluted.

9. The third of them is the provision which creates the penalties for the offence for which Sydney Water has been convicted:

123   Maximum penalty for water pollution offences

A person who is guilty of an offence under this Part is liable, on conviction:

(a)   in the case of a corporation—to a penalty not exceeding $1,000,000 and, in the case of a continuing offence, to a further penalty not exceeding $120,000 for each day the offence continues, or

(b)   …

10. The Prosecutor does not suggest that any daily penalty arises to be considered for present sentencing purposes.

11. The fourth of them is the provision which sets out the matters I am required to consider when determining the appropriate penalty to be imposed on Sydney Water for its offending conduct:

241   Matters to be considered in imposing penalty

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

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

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

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

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

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

(f)   the presence of asbestos in the environment.

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

12. The fifth of them is the provision which permits me to order that Sydney Water pay the Prosecutor’s investigation expenses:

248   Orders regarding costs and expenses of investigation

(1)   The court may, if it appears to the court that a regulatory authority has reasonably incurred costs and expenses during the investigation of the offence, order the offender to pay to the regulatory authority the costs and expenses so incurred in such amount as is fixed by the order.

(2) An order made by the Land and Environment Court under subsection (1) is enforceable as if it were an order made by the Court in Class 4 proceedings under the Land and Environment Court Act 1979. An order made by the Local Court under subsection (1) is enforceable as if it were an order made by the court when exercising jurisdiction under the Civil Procedure Act 2005.

(3)   In this section—

costs and expenses, in relation to the investigation of an offence, means the costs and expenses—

(a)   in taking any sample or conducting any inspection, test, measurement or analysis, or

(b)   of transporting, storing or disposing of evidence,

during the investigation of the offence.

13. The sixth of them is the provision which sets out the range of additional orders potentially available to be made in addition to any penalty. The elements relevant for present purposes are set out below:

250   Additional orders

(1)   Orders The court may do any one or more of the following—

(a)   order the offender to take specified action to publicise the offence (including the circumstances of the offence) and its environmental and other consequences and any other orders made against the person,

(b)   order the offender to take specified action to notify specified persons or classes of persons of the offence (including the circumstances of the offence) and its environmental and other consequences and of any orders made against the person (including, for example, the publication in an annual report or any other notice to shareholders of a company or the notification of persons aggrieved or affected by the offender’s conduct),

(c)   …,

(d)   …,

(e) order the offender to pay a specified amount to the Environmental Trust established under the Environmental Trust Act 1998, or a specified organisation, for the purposes of a specified project for the restoration or enhancement of the environment or for general environmental purposes,

(f)   …,

(g)   …,

(h)   …

The Local Court is not authorised to make an order referred to in paragraph (c), (d), (e) or (h).

(1A)   …

(2)   Machinery The court may, in an order under this section, fix a period for compliance and impose any other requirements the court considers necessary or expedient for enforcement of the order.

The Crimes (Sentencing Procedure) Act 1999

14. The Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act) sets out, in s 3A, the purposes for which sentencing is to be undertaken. This provision is in the following terms:

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.

15. The Sentencing Procedure Act also sets out, in s 21A(2) and (3), matters required to be considered when sentencing for the offence to which Sydney Water has pleaded guilty. Not all elements of these provisions are here relevant. The relevant elements of the provision are in the following terms:

21A   Aggravating, mitigating and other factors in sentencing

(1)   General In determining the appropriate sentence for an offence, the court is to take into account the following matters—

(a)   the aggravating factors referred to in subsection (2) that are relevant and known to the court,

(b)   the mitigating factors referred to in subsection (3) that are relevant and known to the court,

(c)   any other objective or subjective factor that affects the relative seriousness of the offence.

The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.

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

(a) to (c)

(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),

(f)   …

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

(h)‑(p)   …

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)‑(d)   …

(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 reoffend,

(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),

(j)‑(n)   …

(4)‑(5C)

16. Although s 21A(2) provides for potential aggravating factors, it is to be noted that the Prosecutor does not submit that any factors of aggravation arise in the circumstances of this offending conduct by Sydney Water.

The Fines Act1996

17. The Fines Act 1996 (the Fines Act) permits a court to order that a portion (up to 50%) of a fine be paid to a prosecutor. Such a payment is known as a moiety. In these proceedings, the Prosecutor seeks that an order be made that a moiety of the financial penalty to be imposed on Sydney Water (such amount being the penalty after exclusion of any sum ordered pursuant to s 250(1)(d) of the POEO Act is satisfied). This provision of the Fines Act is in the following terms:

122   Payment of share of fine to prosecutor

(1)   This section applies where—

(a)   the Act imposing or authorising the imposition of a fine or other penalty does not make any provisions for its application when recovered, and

(b)   the prosecutor is not a police officer.

(2)   The court before which proceedings are taken to recover any such fine or other penalty may direct that such portion of it (not exceeding one‑half) is to be paid to the prosecutor.

(3)   For the purposes of this section, fine does not include an amount of the kind referred to in section 4 (1) (e) or (f).

The Criminal Procedure Act1986

18. As there is a dispute between Sydney Water and the Prosecutor as to whether or not a costs order should be made in the Prosecutor's favour for the portion of the liability proceedings relating to the pumping station offence and for this sentencing hearing, it is necessary to set out the two relevant provisions of the Criminal Procedure Act 1986 (the Criminal Procedure Act) concerning the making of costs orders in a Prosecutor's favour. These provisions, ss 257B and 257G are set out below:

257B   When costs may be awarded to prosecutor

A court may, in and by a conviction or order, order an accused person to pay to the registrar of the court, for payment to the prosecutor, such costs as the court specifies or, if the conviction or order directs, as may be determined under section 257G, if—

(a)   the court convicts the accused person of an offence, or

(b) the court makes an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 in respect of an offence.

257G   Calculation of costs

The professional or other costs payable by a prosecutor or accused person in accordance with an order directing that the amount of costs is to be determined under this section are to be determined—

(a)   by agreement between the prosecutor and accused person, or

(b) if no such agreement can be reached, in accordance with the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) (with or without modifications prescribed by the regulations).

Representation

19. The Prosecutor was represented by Mr E Muston SC and Mr R Ranken, barrister. Sydney Water was represented by Ms S Hall SC. The advocates provided helpful written submissions.

The Statement of Agreed Facts on Sentencing

20. The parties have settled a Statement of Agreed Facts on Sentencing (Exhibit A). It is appropriate to reproduce it in full. It is to be noted that various documents (including photographs) are referenced in the Agreed Statement of Facts reproduced below as being appendices to that document. Those appendices are not reproduced in this decision. The Statement of Agreed Facts on Sentencing is in the following terms:

AGREED STATEMENT OF FACTS

The defendant

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

The offence

2. On 11 August 2022, Sydney Water was found guilty of one offence of polluting waters contrary to s 120(1) of the Protection of the Environment Operations Act 1997 (POEO Act), in that it caused untreated sewage to overflow from sewage pumping station SP0213 at Carramar directly into Prospect Creek via a submerged overflow pipe from about 15 January 2019 to about 16 January 2019.

BACKGROUND

Environment Protection Licence 372

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

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

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

a.   “Malabar STP at Fishermans Road Malabar”;

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

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

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

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

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

7.   The Licence contained the following relevant Limit Conditions:

L1   Pollution of waters

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

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

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

a)   uncontrolled overflows, or

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

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

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

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

…

L7.4   Dry weather overflow limits

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

The Pumping station

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

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

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

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

The Rising main

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

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

The Isolation Valve

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

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

Prospect Creek and Carrawood Reserve

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

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

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

DETAILED CHRONOLOGY

14 January 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

15 January 2019

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

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

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

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

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

34.   Ms Lawrence‑Haskew then conducted an inspection of the area and observed the following:

a.   large pools of brown liquid in Carrawood Reserve extending beyond her line of sight;

b.   a steady, continuous flow of liquid flowing from the pool in Carrawood Reserve moving east towards the playing fields, under the steel fencing around the playing field and over the footpath and into Prospect Creek;

c.   a sheet of brown liquid flowing over the footpath;

d.   that the footpath was damp, indicating that the flow of brown liquid had reduced over time;

e.   that the sewage between Carrawood Reserve and the playing fields had formed a fast‑flowing channel;

f.   that Prospect Creek (at the location near Carrawood Reserve) was opaque brown in colour and patches of foam on the water surface;

g.   brown liquid bubbling up from a point within the pool of brown liquid adjacent to small earthen bunds;

h.   a weak sewage and stale water odour; and

i.   brown liquid rippling across the surface of the pools in Carrawood Reserve, which Ms Lawrence‑Haskew associated with the continuous release of liquid from the break in the Rising main and the general flow of liquid towards Prospect Creek.

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

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

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

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

39.   However, the Isolation Valve was not operated.

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

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

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

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

d.   a moderate ambient sewage odour.

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

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

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

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

c.   a significant flow of liquid sewage material from the western side of Carrawood oval towards Prospect Creek;

d.   a moderate to high sewage inflow to Prospect Creek from a stormwater culvert;

e.   a slight incoming tide within Prospect Creek;

f.   the sewage entering Prospect Creek at the points marked‑up on the map at Appendix B;

g.   at the footbridge north of the Pumping station, the water within the creek appeared turbid, dark brown with no obvious indications of sewage impact.

Photographs taken by Ms Rodgers during the inspection are at Appendix C.

43.   At about 11:50 pm, Sydney Water took steps to shut down the Pumping station and replace the broken section of the Rising main, which occurred as follows:

a.   the split section of the Rising main required to be removed and replaced;

b.   to do this, the Rising main required to be dewatered;

c.   the Rising main required both prevention of inflow from the NGRS at the upper end of the Rising main and prevention of further sewage being pumped into the Rising main from the Pumping station;

d.   for reasons of safety for the Sydney Water personnel who needed to plug the upper end of the Rising main in the chamber where it joined the NGRS, such plugging (and post‑repair unplugging) could only happen at times of night‑time low flow (referred to as the diurnal flow period) into the chamber in the NGRS;

e.   in order to prevent further sewage being introduced into the Rising main from the Pumping station, it was necessary to shut down the Pumping station;

f.   Sydney Water arranged for tankers to attend the site to pump sewage from the wet well of the Pumping station and transport it to another pumping station via which it could be discharged into a portion of Sydney Water’s sewage disposal system not impacted by the split of the Rising main;

g.   site constraints on the ability for the tankers to access the Pumping station for the purpose of pumping sewage from the wet well meant that only two tankers at a time were able to undertake this operation;

h.   because of these site constraints, the tankering operation was unable to remove sewage from the wet well at a rate equal to or greater than the rate that sewage was entering the wet well of the Pumping station;

i.   flow into the pumping station needed to be reduced by operation of the valve at SP0187 to divert effluent away from the Pumping station and to the Liverpool Treatment Plant;

j.   the failure of Mr Aquilina to operate that valve so as to divert the portion of the flow that would ordinarily enter the Pumping station (and be transmitted via the Rising main) by redirecting it to the Liverpool Treatment Plant meant that the combination of the backflow from dewatering the Rising main and the inflow arising from Mr Aquilina's failure produced too great a volume of sewage accumulation in the wet well of the Pumping station for the tankering operation to remove sewage from the wet well without that wet well overflowing into Prospect Creek.

44.   In respect of the tankering operations referred to in paragraph 43, the vehicles used by Sydney Water were marshalled and manoeuvred into position in an appropriate manner given the site constraints. Sydney Water could not have deployed larger tankers in the circumstances.

45.   At about 11:59 pm, there was an overflow of sewage from the Pumping station into Prospect Creek. An explanatory diagram showing the discharge location into Prospect Creek is at Appendix D.

46.   The overflow from the Pumping station ceased at 1:26 am on Wednesday, 16 January 2019 when the tankers were able to keep up with the inflow into the Pumping station.

47.   The designed overflow pipe from the Pumping station flows directly into Prospect Creek upstream of the location at which sewage discharged from the Rising main entered Prospect Creek.

16 January 2019

48.   At about 7:47 am, the repair of the Rising main was complete.

17 January 2019

49.   At about 8:50 am on Thursday, 17 January 2019, EPA Officers Simon Matthews, Nicholas Kumar and Ian Holland carried out an inspection of Prospect Creek and subsequently took water samples at 12 locations in Prospect Creek, with 4 of the sampling locations replicating those undertaken on 15 January 2019. At eight of the 12 locations, Mr Matthews performed an in‑field test for ammonia and observed elevated ammonia in respect of four of those locations. Two of those four were sampling locations replicating those undertaken on 15 January 2019.

18 January 2019

50.   At about 7:25 am on Friday 18 January 2019, EPA Officers Aleesha Rodgers and Kieran Henry carried out an inspection of Carrawood Reserve and Prospect Creek and subsequently took water samples at various locations in Prospect Creek. During the inspection, the EPA officers observed areas of grey stained vegetation and sludge at the southern boundary of properties on Waterside Crescent and Carrawood Oval. Photographs taken by Ms Rodgers during the inspection are at Appendix E.

51.   At 4:28 pm, Sydney Water received notification of an odour complaint near Knight Street, Lansvale.

20 January 2019

52.   At about 12:06 pm and 12:30 pm on Sunday, 20 January 2019, the EPA received calls about sewage odours in the area near Carrawood Reserve. The EPA then requested Sydney Water to carry out a door knock to notify local residents about the odour.

21 January 2019

53.   At about 11:00 am on 21 January 2019, EPA Officers Simon Matthews and Ian Holland carried out an inspection of Prospect Creek and subsequently took water samples at various locations in Prospect Creek.

OTHER MATTERS

Duration and estimated volume of the overflows

54.   The discharge of untreated sewage from the split on the Rising main was first detected at 5:37 pm on 14 January 2019 and ceased at 1:28 am on 16 January 2019, being at least 31 hours and 51 minutes. The volume of sewage discharged into the environment was at least 821 kilolitres (kL), but the volume that actually discharged or that reached Prospect Creek from Carramar Reserve is unknown.

55.   Untreated sewage was discharged from the Pumping station overflow pipe directly into Prospect Creek between 11:59 pm on 15 January 2019 and 1:26 am on 16 January 2019, being 1 hour and 27 minutes. The volume of sewage discharged was at least 282 kL, but the precise total volume that discharged from the Pumping station overflow pipe is unknown.

Rainfall at the time of the overflows

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

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

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

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

Actual and potential harm to the environment

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

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

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

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

c.   increased levels of ammonia;

d.   reduced dissolved oxygen levels;

e.   observed sewage odour;

f.   observed turbidity and/or change in colour.

Prior convictions for environmental offences

60. On 9 March 2021, Sydney Water was convicted of two offences against s 120 of the POEO Act in relation to overflows of approximately 2,800,000 litres of untreated sewage into Toongabbie Creek near the confluence with Parramatta River and Darling Mills Creek (Environment Protection Authority v Sydney Water Corporation [2020] NSWLEC 153).

61. On 28 January 2021, Sydney Water was convicted of one offence against s 64(1) of the POEO Act of failing to comply with a condition of its Environment Protection Licence 1728 and one offence against s 91(5) of the POEO Act for failing to clean up an overflow of approximately 57,000 litres of raw sewage into an unnamed creek at Bangor near Sutherland (Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 4).

62. On 11 November 2020, Sydney Water was convicted of one offence against s 120 of the POEO Act and one offence against s 64(1) of the POEO Act in respect of environment protection licence 378 in relation to a sewage incident in the Lane Cove River, North Epping (Environment Protection Authority v Sydney Water Corporation [2020] NSWLEC 153).

63. On 16 July 2019, Sydney Water was convicted of two offences against s 120 of the POEO Act and an offence against s 64(1) of the POEO Act in respect of environment protection licence 372 in relation to an incident at the Southern & Western Suburbs Ocean Outfall Sewer in Mill Stream, Botany (Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100).

64. On 21 April 2015, Sydney Water was convicted of an offence against s 120 of the POEO Act and an offence against s 64(1) of the POEO Act in respect of environment protection licence 372 in relation to an incident at the Malabar Waste Water Treatment Plant (Environment Protection Authority v Sydney Water Corporation [2015] NSWLEC 80).

65. On 21 July 2000, Sydney Water was convicted of an offence of pollution of waters contrary to s 16(1) of the then 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).

66. On 3 March 2000, Sydney Water was convicted of an offence of pollution of waters contrary to s 16(1) of the then Clean Waters Act 1970, during the operation of its West Camden Sewerage Treatment Plant, occurring on 22‑23 October 1998 (Environment Protection Authority v Sydney Water Corporation [2000] NSWLEC 80). About 7,000‑ 8,000 litres of aluminium sulphate was discharged into a tributary of a creek.

67.   On 12 November 1998, Sydney Water was convicted of an offence against cl 17D(9) of the then 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 condition (Environment Protection Authority v Sydney Water Corporation [1998] NSWLEC 144). The incident involved a cliff face discharge at North Head Sewage Treatment Plant.

Matters in dispute

21. Ms Hall concluded her written submissions on sentence, saying, at paragraph 37:

37 There is not a vast deal of difference between the positions of the respective parties. The main source of contention seems to be the consideration of harm and whether or not it has been established by the prosecutor to be substantial beyond reasonable doubt for the purposes of s 21A(2)(g) Crimes (Sentencing Procedure) Act.

22. However, it is necessary to address other matters of potential factors of aggravation pursuant to s 21A(2) of the Sentencing Procedure Act. This arises because of the headings to two sections of the Prosecutor's written submissions on sentence, those being the issue of Sydney Water's past convictions (s 21A(2)(d) addressed at paragraphs 54 to 57 of the Prosecutor's written submissions) and the extent of the harm to the environment (addressed at paragraphs 25 to 31 of the Prosecutor’s written submissions nominating, amongst other provisions, the potential engagement of s 21A(2)(g) of the Sentencing Procedure Act), that raise potential aggravating factors to be taken into account on sentence.

23. These matters, because they are raised by the Prosecutor in its written submissions in this fashion, require consideration as to whether or not I should find that these two aggravating factors have been established beyond reasonable doubt for these sentencing purposes.

The evidence

24. The parties relied on a Joint Expert Report prepared by Dr Fleur Pablo, Senior Scientist, Environmental Forensics ‑ Ecotoxicology, NSW Department of Planning & Environment (for the Prosecutor) and Mr Nikolai Stroinovsky, Lead Environmental Advisor, Customer Delivery Environment Team, Sydney Water Corporation (for Sydney Water). The report became Exhibit B. The experts were not required to give oral evidence on their joint report.

25. The Prosecutor also tendered the expert report of Dr Pablo dated 9 October 2020. This report became Exhibit C (but only to the extent that this document was referenced in Exhibit B).

26. The Prosecutor also tendered the orders that it proposed were the appropriate outcomes (penalty amounts to be filled in). The proposed orders became Exhibit D.

27. Sydney Water relied on an affidavit from Mr Ian Fairbairn, Sydney Water's Head of Wastewater and Environment. He was not required for cross‑examination.

28. The parties also provided me with extensive lists of material from the evidence that had been provided for the purposes of the liability hearing, with that evidence to be relied upon for the purposes of the sentencing hearing. Neither party objected to the other party's list of this material. It is not necessary for present purposes to refer to any detailed elements of that material.

The extent of the harm

Introduction

29. As earlier noted, the two technical experts had provided a Joint Expert Report which had become Exhibit d. it is appropriate to reproduce the entirety of the contents of that report as it explains, in a comparatively concise fashion, which matters (and why) the experts agreed were engaged for consideration and the extent of the harm arising from the discharge of that element of the untreated effluent reaching Prospect Creek which resulted from the pumping station overflow charge for which Sydney Water has been convicted:

1   This report is about the incident (Incident) that occurred between 14 and 16 January 2019 involving the discharge of untreated sewage from a rising main (Rising main) and sewage pumping station SPS0213 (Pumping station) located near Waterside Crescent, Carramar NSW.

2   On 26 October 2022, Ms Bonnie Perris, a Principal Legal Officer of the NSW Environment Protection Authority (EPA) provided a Brief (Annexure A) requesting us to address in a Joint Expert Report the following questions:

a.   Are you able to express an opinion about what was the nature, extent and duration of any harm caused or likely to be caused by the untreated sewage discharged from the Pumping station overflow pipe? If so, what was the nature, extent and duration of any harm caused or likely to be caused by that discharge?

b.   Are you able to express an opinion about what was the nature, extent and duration of the risk of or potential for environmental harm caused by the untreated sewage discharged from the Pumping station overflow pipe? If so, what was the nature, extent and duration of the risk of or potential for environmental harm?

3   In preparing the Report, we were asked to assume the following in relation to volumes of untreated sewage discharged:

a.   The volume of discharge from the Rising main into the environment was at least 821 kL. The discharge occurred over the period from approximately 5:43 pm on 14 January 2019 to approximately 1:28 am on 16 January 2019.

b.   The volume of discharge from the Pumping station offence directly into Prospect Creek was at least 282 kL. The discharge commenced at 11:59 pm on 15 January 2019 and ceased at 1:26 am on 16 January 2019.

Considerations taken in answering the questions given in the Brief

4   Sydney Water’s Field Sampling and Testing Team (FST) and EPA undertook investigations during and following the Incident. The sites (Sites) attended and corresponding Site names assigned (which are used in the Annexures), are those given in Pablo’s Affidavit at Table 1 in conjunction with Figure 1 (reproduced in Annexure B as Table B‑1 and Figure B‑2 respectively).

5   While both FST and EPA attended similar Sites during their investigation, we present the results obtained by FST because they attended the Incident daily over 2 weeks from 15 January 2019, and analysis results are available. (Annexure H of Pablo’s Affidavit gives a summary of selected results of samples taken by FST between 15 and 23 January 2019.)

6   The principal analytical parameters used in estimating the condition or extent of contamination of Prospect Creek waters at the area where untreated sewage was discharged, are: (i) the measured concentrations of indicator bacterial organisms (faecal coliforms and Enterococci) and (ii) the semi‑ quantitatively measured ammonia concentrations. All estimations made are rough, and are attempts to come up with numerical values in order for trends to be determined and for comparisons with current guidelines, if any, to be made.

7   In assessing the likely impacts of the contaminants discharged from the Pumping station into the waters of Prospect Creek, we have considered the Australian recreational water quality guidelines (WQGs) for faecal indicator bacteria summarised in Table 1, as prescribed in the 2000 Australian and New Zealand Guidelines for Fresh and Marine Water Quality by Australian and New Zealand Environment and Conservation Council (ANZECC 2000).

Table 1. Australian guidelines for faecal indicator bacteria applicable for recreational water quality under category secondary contact (less‑frequent body contact with the water eg fishing, boating).

Guideline	Source
Faecal coliforms	1,000 organisms/100 mL	ANZECC 2000 vol 1 section 5.2.3 page 5‑4
Enterococci	230 organisms/100 mL

Matters agreed upon

8   We had discussions about the questions provided in the Brief. We had regard to the available evidence outlined in the Brief as to the condition of the receiving waters. We had made estimations on the condition of the receiving water Prospect Creek, which are presented in Annexure C. Paragraphs [9] ‑ [15] below are the matters we agreed upon.

9   There is some degree of uncertainty as to what is ‘typical’ condition of Prospect Creek waters, due to the limited amount of data that is available. As such, baseline conditions were estimated at best. The creek has a large, developed catchment with many secondary sources of potential impact, such as industry and urban development. It has a history reflecting this, with sediments likely to be polluted and holding a variety of contaminants. Despite this it is certain that the sewage discharged during the Incident, including the discharge from the Pumping station, had altered the condition of Prospect Creek waters around the discharge area.

10   Prior to the discharge from the Pumping station from 11:59 pm on 15 January 2019, the estimates on the condition of Prospect Creek waters based on bacterial concentrations given in Annexure C(1) at Table C‑2, show that the waters around the discharge area was heavily contaminated with sewage.

11   The added discharge of untreated sewage from the Pumping station resulted in making worse the condition of Prospect Creek waters in the following at least 6 days, until the rain event recorded on 22 January 2019. See details at Annexure C(2) of the approach taken in estimating the likely harm caused by the discharge from the Pumping station. In brief, we estimate that the discharge from the Pumping station contributed around 26% of the observed impacts at Prospect Creek. The estimated 26% is derived from the discharge volume from the Pumping station to the total volume of sewage discharged into the creek during the Incident. We note that this estimated 26% contribution to the observed impacts from the discharge at the Pumping station is conservative, given that the 282 kL discharge volume from the Pumping station occurred at the last 1½ hours within the 31¾ hours of the 821 kL discharge from the Rising main.

12   The discharge from the Pumping station had likely caused additional actual harm to the environment. The actual harm took the form of direct alteration of the biological, physical and chemical characteristics of Prospect Creek waters. This had the effect of degrading for at least 6 days, of up to 4.9 km length of Prospect Creek: from approximately 1.3 km upstream (due to tidal influence), to approximately 3.6 km downstream of the Pumping station discharge point or the Reference pt (see Site location in Annexure B Table B‑1 and Figure B‑1).

13   The direct alterations that were likely caused to the characteristics of Prospect Creek waters were:

a.   reduced DO levels, sewage odour and water turbidity;

b.   increased concentrations of indicator organism faecal coliforms exceeding the ANZECC 2000 recreational water quality guideline by up to >2,000 times (as shown in Annexure C Table C‑3);

c.   increased concentrations of indicator organism Enterococci exceeding the ANZECC 2000 recreational water quality guideline by approximately 315 times (as shown in Annexure C Table C‑4);

d.   addition to the ammonia levels particularly in the area where discharge occurred (as shown in Annexure C Tables C‑5 and C‑6).

14   The discharge from the Pumping station would have also contributed to the:

a. potential acute harm to aquatic organisms as summarised in Table 10 and discussed in paragraphs [113] to [117] of Pablo’s Affidavit;

b. possible potential risks to amenity for members of the community in the vicinity of Carrawood Reserve to Knights St Lansvale who complained of odour of sewage‑ contaminated water in Prospect Creek (see paragraphs [53] to [56] of Pablo’s Affidavit).

15   We acknowledge that Sydney Water Corporation had implemented the following actions to mitigate the overall impacts of the discharge of untreated sewage into Prospect Creek.

a.   Impacts were being offset, at least partially, through aeration of the waterway using a variety of techniques. Aeration had primarily increased the amount of dissolved oxygen in water as well as provided numerous other benefits including increasing the amount of gas exchange to breakdown nutrient and other chemical pollutants and ultimately lowering bacterial loads.

b.   The introduction of clean water from the drinking (potable) water system using multiple standpipes, diluted the sewage contamination. This action introduced something in the vicinity of 36 kL per hour per standpipe running. Two to three standpipes were running at least 8 to 12 hours per day during and following the Incident. A total volume of 864 kL to 1,296 kL were discharged, adding to the dilution of the sewage and reducing the impacts and harm caused.

c.   Dechlorination using sodium ascorbate in accordance with Sydney Water’s procedures was used to avoid potential impacts from chlorine during flushing. This eliminated the risk of harm from the chlorine in the drinking water entering the waterway.

Matters not agreed upon

16   There were no matters that we disagreed on.

The matters arising from s 241 of the POEO Act

Introduction

30. I have earlier set out s 241 of the POEO Act as it was in force in mid‑January 2019. As can be seen from its terms, the first four matters mandated to be considered in sentencing for offences under the Act are applicable, potentially, in these circumstances. Both the Prosecutor and Ms Hall addressed them each in specific elements of their written submissions on sentence, doing so comparatively briefly. Each of them also adverted to them during the course of their oral submissions at the sentencing hearing, because how I was to understand the offending conduct arising from the effluent discharge from the pumping station’s wet well was the principal merit (as opposed to procedural) matter in contest between them.

31. I will, therefore, in the following portion of this decision, set out their written submissions. As the written submissions comprehensively address the matters arising for consideration, it is not necessary to make specific reference to any of the oral submissions made by either the Prosecutor or for Sydney Water on these matters. The relevant portions of the parties’ written submissions are set out below. When I come to consideration, however, I will address the four relevant factors in a partially accumulated, partially specific, fashion as I consider that that enables me to fulfil my statutory obligation pursuant to s 241, but also explain how I have had regard to those various matters.

The Prosecutors submissions

32. The relevant paragraphs from the Prosecutor’s written submissions (paragraphs 25 to 47 – footnotes omitted) are:

The extent of the harm – s 241(1)(a) of the POEO Act/ss 3A(g) and 21A(2)(g) of the Sentencing Act

25 The actual, likely and potential harm that resulted from the Offence is detailed in the Agreed Facts at [58]-[59] and in the Joint Expert Report.

26   The introduction of untreated sewage into Prospect Creek resulted in direct alteration of the chemical and biologic characteristics of those waters because it increased the density of indictor organism faecal coliforms exceeding ANZECC Guidelines for Water Quality Monitoring and Reporting by up to 7,800 times as well as increasing the density of indicator organism enterococci exceeding background levels by up to 1,120 times. It also increased the levels of ammonia and reduced dissolved oxygen levels. There was also observed sewage odour, turbidity and change in colour.

27   In their report, the Joint Experts have acknowledged that prior to the discharge from the Pumping station, the estimates on the condition of Prospect Creek waters based on bacterial concentrations show that the waters around the discharge area was heavily contaminated with sewage (as a result of the discharge from the Rising main), but have concluded that the added discharge of untreated sewage from the Pumping station made worse the condition of Prospect Creek waters over a period of at least 6 days, until the rain event recorded on 22 January 2019. They have estimated the discharge from the Pumping station contributed around 26 percent of the observed impacts at Prospect Creek, which estimate is expressed to be “conservative” given the at least 282 kL of untreated sewage discharged from the Pumping station occurred within the last 1.5 hours within the 31.75 hours of the 821 kL discharge from the Rising main.

28   This harm extended over a significant distance from approximately 1.3 km upstream of the discharge point (due to tidal influence) to approximately 3.6 km downstream of the Pumping station discharge point.

29   The fact the receiving environment had likely already been harmed by untreated sewage that had been discharged from the split Rising main and reached the waters of Prospect Creek, which the Court found was authorised under EPL 378, is irrelevant. The fact that receiving waters have been modified, disturbed or degraded prior to a polluting event cannot be a factor mitigating Sydney Water’s conduct.

30   The Joint Experts have also concluded that the discharge from the Pumping station would have contributed to the potential acute harm to aquatic organisms as summarised in Table 10 and discussed in paragraphs [113]-[117] of Dr Pablo’s affidavit and to the possible potential risks to amenity for members of the community in the vicinity of Carrawood Reserve to Knight Street Lansvale who complained of odour of sewage contaminated water in Prospect Creek (as summarized in paragraphs [53]-[56] of Dr Pablo’s Affidavit).

31   For these reasons, it is open to the Court to find that significant harm to the environment and the community was caused by the Offence.

Sydney Water’s state of mind in committing the Offence

32 The offence provided by s 120 of the POEO Act involves strict liability. Nevertheless, the defendant’s state of mind is relevant to the assessment of the objective seriousness of the offence where it is an incident of the conduct giving rise to the offence. A strict liability offence that is committed intentionally, recklessly or negligently will be objectively more serious than if it were committed unintentionally or without recklessness or negligence.

33   It is not submitted that the pollution of the waters in Prospect Creek as a result of the discharge of untreated sewage from the pumping station was an objective that Sydney Water sought to achieve. To that extent, the Offence was not deliberate or wilful.

34   The state of mind of the Defendant is addressed further below in the context of the foreseeability of the environmental harm.

The defendant’s reasons for committing the offence

35   There is no evidence that the Offence was committed for any reason that would increase the objective seriousness of the crime, such as financial gain.

36   It is accepted that the Defendant committed the Offence in the context of taking action to mitigate what it considered to be a more serious threat to the environment, namely the ongoing discharge from the split in the Rising main.

Sydney Water’s control over the causes of harm to the environment

37   As noted above, the two critical factors that led to the commission of the Offence are the failure of the Rising main and the failure to operate the Isolation Valve.

38   While it must be accepted that Sydney Water is not criminally liable for the failure of the Rising main or the failure to operate the Isolation Valve, it remains a fact that both those pieces of plant formed part of Sydney Water’s reticulation system and Sydney Water was the only entity which had the legal, physical and technical ability to ensure they did not fail or were otherwise operated in a proper and efficient manner.

39   It is to be remembered that the failure of the Rising main was not the result of any external event, but occurred in the course of, and as a result of, Sydney Water’s ordinary operation of it. It must also be accepted that on the information available to it, Sydney Water did not expect the Rising main would fail before 2023 and that even then the risk had been assessed as 10 percent and that such a conclusion was appropriate to draw from the testing undertaken in 2007. The split of the Rising main has been found to have been unforeseen and unforeseeable and did not arise from a failure by Sydney Water to maintain any part of its reticulation system in a proper and efficient condition. That does not mean that Sydney Water did not have control over the causes of the discharge from the Pumping station.

40   Of greater significance, in the case of the Isolation Valve, the failure to operate it was either because it was not in a condition where it could be operated in a proper and efficient manner or because the contractors engaged by Sydney Water to operate it failed to do so in a proper and efficient manner. In either instance, Sydney Water was ultimately responsible for the fact that the Isolation Valve was not operated to divert inflows of untreated sewage away from the Pumping station. Moreover, there is no evidence that Sydney Water took any steps to verify whether the Isolation Valve was in fact inoperable or whether the contractors had simply failed to operate it correctly.

The foreseeability of risk of harm to the environment

41   As already noted, it may be accepted that the split of the Rising main was unforeseen and unforeseeable. However, that does not lead to a conclusion that the risk of harm to the environment upon the inevitable discharge of sewage from the Pumping station following its shutdown was not foreseeable.

42   Sydney Water was aware of the likelihood that an overflow from the Pumping station would occur. Mr Fairbairn has said:

Sydney Water considered the risk that sewage would overflow from the Pumping station while it was shut down and implemented a flow isolation flow management plan. The aim was to have the work completed before the morning peak flows, which usually start around 6am. to reduce the likelihood of an overflow at the Pumping station.

43   In fact, as the Defendant submitted at the defended hearing, Sydney Water had assessed that there would be partial overflow if the inflow and draining of the Rising main was occurring and exceeding tankering capacity during the shutdown period.

44   It follows that the Defendant committed the Offence knowing that its actions in shutting down the Pumping station would result in a discharge of untreated sewage directly into the waters of Prospect Creek.

The practical measures to avoid harm to the environment

45 Notwithstanding the submission at [38]-[39] above, the Prosecutor accepts that, having regard to the circumstances as found by the Court in the Liability Judgment, it is open to the Court on sentence to find that it was not reasonably practicable for Sydney Water to have taken steps to avoid the split in the Rising main from occurring in the first instance.

46   Nevertheless, the harm to the environment from the Offence could have been avoided by Sydney Water ensuring the Isolation Valve was able to be operated and was in fact operated to divert inflows of untreated sewage from the Pumping station prior to and during the shutdown. As noted above, upon being advised by the Ventia contractors that they were unable to successfully operate the Isolation Valve, Sydney Water did not take any steps to verify whether that was because the Isolation Valve was not in a condition to be operated or because the technicians had simply failed to operate it correctly.

47   That said, the Prosecutor acknowledges that Sydney Water did put in place measures such as the tankering of sewage from the Pumping station in order to mitigate the extent of the discharge during the shutdown of the Pumping station and that it implemented further actions to mitigate the overall impacts of the discharge of untreated sewage as identified at paragraph [15] of the Joint Expert Report.

Sydney Water’s submissions

33. The relevant paragraphs from Ms Hall's written submissions (paragraphs 8 to 25) are:

Extent of harm: s241(a)

8. The extent of the harm caused or likely to be caused is the first of the s241 considerations. In order to assist the Court in assessing the harm caused to the environment, the experts have prepared a joint report. That report starts from the position that the waters around the discharge area were already "heavily contaminated with sewage" prior to the discharge from the pumping station'': at [10].

9. Unexpectedly, the experts opine that the discharge of untreated sewage from the pumping station made the condition of the waters in prospect Creek worse: at [11]. The experts provide what they consider to be a conservative estimate that the pumping station offence contributed 26% of the observed impacts at Prospect Creek: at [11].

10.   The water in the Prospect Creek was degraded “for at least 6 days, of up to 4.9km length of Prospect Creek: from approximately 1.3km upstream (due to tidal influence), to approximately 3.6km downstream of the Pumping Station discharge point or the Reference point": at [12]. This was the direct harm to the environment. There was also potential harm to aquatic organisms and potential risks to amenity for locals.

11. The harm caused by Sydney Water referrable to this offence occurred in the last 1½ hours of nearly 32 hours of 821 kL being discharged from the rising main: at [11]. As was fairly accepted by the experts, it is impossible to give a precise measure of the harm caused.

12.   In Environmental Protection Authority v Sydney Water Corporation [2021] NSWLEC 17 ('Northmead'), Robson J considered a similar situation whereby a substantial discharge had occurred as a result of the collapse of a pumping station and there had been two subsequent discharges follm,ving an already significant discharge. His Honour ultimately concluded that he could not be satisfied beyond reasonable doubt that the harm was substantial: at [100].

13.   In coming to that conclusion, his Honour had regard to the difficulty in attributing the harm said to have come from the subsequent discharges "where the receiving environment has already been polluted": at [101]. His Honour also had regard to the inability to be "sufficiently specific" about the harm: at [102].

14.   Justice Robson gave consideration to all of the relevant factors including the duration and volume of the discharge, the condition of the receiving waters and the interference with public amenity as supporting the finding that ''while harm was caused, it was not substantial": at [103].

15.   Whilst any harm is always regrettable, it is submitted that the Court could not conclude having regard to all of the circumstances that the harm caused by the pumping station offence was substantial. It certainly contributed to the overall harm that was caused, but of itself, was not substantial when it is considered that the duration of the overflow as a percentage of the total time that overflows were occurring into Prospect Creek and the surrounds, is just under 5%.

Practical measures that could have been taken to prevent, control, abate or mitigate that harm: s24 I (b)

16.   As the prosecutor's submissions fairly recognise, the harm from the pumping station offence occurred in the context of Sydney Water trying to mitigate the harm occurring as a result of the split in the rising main: at [19] PWS. Sydney Water was conscious of the potential for overflows to occur with the pumping station being shut down and took steps to avoid that taking place: at [22] PWS.

17.   The prosecutor acknowledges that the steps taken to bring in tankers were hampered by the constraints of the site and that the failure of the Ventia operators to operate the isolation valve which would have diverted the flow from the pumping station "was a critical factor" in the circumstances of this offence: at [23]-[24] PWS.

18. Considering the measures taken by Sydney Water to prevent and control the harm, there is also the recognition in the expert report of the steps taken by Sydney Water to abate or mitigate that harm. The steps taken by Sydney Water to mitigate the harm are set out at para [15] of the Joint Expert Report and accepted by the prosecutor: at [47].

19.   It is respectfully submitted that Sydney Water did take practical measures to address the harm that was anticipated in the context of the pumping station having to be shut down. Indeed, in rejecting the defence of necessity on account of the absence of evidence that "a reason, let alone the dominant or sole reason, for shutting the pumping station down, in circumstances where an overflow to Prospect Creek would be the necessary consequence, was to avoid immediate and irreparable harm to human health or life": at [531] (original emphasis), his Honour undertook a detailed examination of the reasons provided by those decision makers at Sydney Water.

20.   His Honour set out the evidence of those decision makers as to the reason(s) they gave for shutting down the pumping station. Consistent with what Gary Hurley told investigators, the "whole objective of the entire approach was to minimise the environmental impacts": at [526].

21.   As such, while Sydney Water could not establish that its decisions had been based on considerations of harm to human health, there certainly was a great deal of emphasis given to the potential impact on the environment, and steps to minimise that impact consistent with the obligations of Sydney Water pursuant to EPL 372.

22.   The prosecutor submits that Sydney Water failed to verify what they had been told by the Ventia contractors about the isolation valve: at [46] PWS. This submission fails to appreciate the complexity of the scenario that Sydney Water was dealing with at the time and the importance of acting expeditiously.

Extent to which harm was foreseeable: s24l(c)

23.   The extent to which the harm was foreseeable has been detailed above. It is conceded that the harm was foreseeable although, as the prosecutor fairly acknowledges, the offence only occurred in circumstances where Sydney Water was forced to act by virtue of the failure of the rising main: at [36] PWS.

Extent to which the defendant had control over the causes which gave rise to the offence: s241(d)

24.   It is conceded that, in so far as Sydney Water anticipated that there was potential for an overflow with the shutting down of the pumping station, it had some control over the causes which gave rise to the offence. However, a number of matters need to be borne in mind when determining how extensive that consideration needs to be. Firstly, the pumping station was only shut down in circumstances where it was necessary to do so in order to repair the rising main.

25.   Secondly, to take into consideration, as the prosecutor urges, one cause to be Sydney Water's responsibility to ensure that the rising main and isolation valve "did not fail or were otherwise operated in a proper and efficient manner" (at [38]‑[40] PWS) is to run the risk of punishing Sydney Water for offences that are not before the Court or indeed, for which Sydney Water has been acquitted. Furthermore, it is at odds with the prosecutor's submission that "the split in the Rising main was unforeseen and unforeseeable": at [41] PWS. In the event that it is appropriate to take into consideration the acts or omissions of the Ventia employees and to hold Sydney Water responsible for them, the prosecutor would need to establish the basis for that vicarious liability. The prosecutor would need to prove that there was more than a mere risk that the consequent event would occur. It must be a direct result of the authorised conduct: Chia v Ku-ring-gai Council [2021] NSWCCA\ 189 at [14]; see also Environmental Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240; [2003] NSWLEC 70. In the circumstances of this case, that direct correlation cannot be made.

118. The Prosecutor’s written submissions refer, in paragraph 30, to a complaint made by a resident of Knight Street, Carramar about the odour arising from the combined total volume of effluent discharged as a consequence of the split in the rising main (for which Sydney Water was found not guilty of Charge 1 relating to that) and the discharge from the wet well of the pumping station (for which Sydney Water has been convicted and is now being sentenced). The relevant information concerning the extent of the transport of the combined effluent discharges was (as a consequence of tidal influences) some 1.3 kilometres upstream and some 3.6 kilometres downstream from the points where the effluent entered the waters of Prospect Creek.

119. In Environment Protection Authority v Nulon Products Australia Pty Ltd [2015] NSWLEC 153, I required the managing director of the company which caused that air pollution incident to write to the employees of an adjacent industrial business where those employees had been directly, adversely affected by that pollution incident. The power to do so is provided by s 250(1)(b) of the POEO Act.

120. At the pre‑trial mention for the sentencing proceedings, I indicated to the Prosecutor and to Ms Hall that I was contemplating making an order, in addition to the matters encompassed by the Prosecutor’s proposed orders, requiring that the Managing Director of Sydney Water should write a letter to be distributed into the letterboxes of all waterfront properties along Prospect Creek (along a length I identified on a marked-up map) to apologise for any odour or other impacts which may have arisen as a result of Sydney Water's offending conduct and to advise the residents of those properties that Sydney Water had been convicted and sentenced for its environmental offending.

121. I asked the legal representatives to seek instructions on this possible order and, if appropriate, endeavour to draft and settle the terms of such an apology letter and the terms of what would be the appropriate order to be made requiring the distribution of the letter and defining the geographic extent of the households to which the apology letter should be distributed.

122. I provided them with a copy of the marked‑up map of the upstream and downstream extent of the area where I had tentatively concluded that the distribution of such a letter would be appropriate.

123. At the subsequent sentencing hearing, I was advised that the Prosecutor supported the making of such an order pursuant to s 250(1)(b) of the POEO Act.

124. Ms Hall also advised me that Sydney Water did not oppose the making of an order requiring, pursuant to s 250(1)(b) of the POEO Act, an apology letter from Sydney Water’s Managing Director, which letter was appropriate to be distributed to residences whose occupants might have been adversely impacted by the pollution of Prospect Creek. Agreement was reached between the Prosecutor and Sydney Water as to the terms of that letter and of the appropriate delineation of the residences to which delivery was to be required.

125. I have considered the agreed terms of the letter and the agreed extent to which its household distribution should be made. The agreed terms of the letter and its distribution scope are reproduced in Annexure B to this decision. I am satisfied that these are appropriate.

Payment of a moiety of the fine to the Prosecutor

126. The Prosecutor seeks that I make an order pursuant to s 122(2) of the Fines Act that Sydney Water pay to the Prosecutor a moiety (50%) of the residual fine to be imposed on Sydney Water (after the deduction from the appropriate penalty earlier explained of the amount of $45,000 to be paid by Sydney Water toward the cost of the Swale Project).

127. It is appropriate to make such an order as the effect will be to add to the money available to the Prosecutor to support its general environmental law enforcement investigation and prosecution activities. Payment of the requested moiety will be incorporated my final orders.

Payment of the Prosecutor’s investigation costs

128. The Prosecutor seeks an order pursuant to s 248 of the POEO Act that, in addition to the penalty‑related orders and costs order, that Sydney Water pay the Prosecutor’s investigation costs of $14,645.80. The investigation costs were incurred by the Prosecutor in having the necessary laboratory tests undertaken of water samples taken not merely in the immediate vicinity of the discharge pipe from the wet well of the pumping station from which the sewage discharge Prospect Creek occurred, but also at appropriate upstream and downstream locations to enable identification of the extent of the pollution spread.

129. Sydney Water does not oppose the making of an order requiring it to pay the Prosecutor’s investigation costs. It is appropriate to make an order that the Prosecutor the reimbursed for them.

Costs of the proceedings

130. There is a dispute between the Prosecutor and Sydney Water about the costs of the proceedings.

The Prosecutor's position

131. The Prosecutor responded, in oral submissions in anticipation, as to whether there should be no order for costs on the basis that Sydney Water had successfully defended two of the charges which had been laid against it giving rise to acquittals on them.

132. The Prosecutor’s points, in summary, were that:

1. there was a presumption that a prosecutor would be entitled to its costs when a conviction was recorded (citing Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96);

2. there was, arising out of either of the acquittals in these proceedings, no prospect of Sydney Water getting its own costs as a consequence of any potential entitlements being limited by ss 257C and 257D of the Criminal Procedure Act, neither of which was relevantly engaged for present purposes; and

3. there were no issues arising out of the way that the proceedings on liability had been conducted which warranted consideration of severing portions of the pumping station charge’s costs on the grounds that the Prosecutor had failed on some discrete element of that charge.

133. The position advanced for the Prosecutor was that, in the ordinary course of events, the Prosecutor would be entitled to its costs in circumstances where a defendant was found guilty of an offence charged. There was, in this instance, nothing pointed to for Sydney Water said to be disentitling of the Prosecutor to such a compensatory costs order.

134. To the extent that the liability hearing had addressed three charges, with Sydney Water being acquitted of two of them, this might give rise to issues in an assessment process of (my words) “disentangling” or “dissecting” the costs of the liability phase for the purpose of extracting what would be the extent of the costs of that phase attributable to the pumping station charge, that was a conventional matter capable of being addressed through the assessment process that would necessarily arise if no agreement was reached between the Prosecutor and Sydney Water on such apportionment matters.

Sydney Water's position

135. The proposition advanced for Sydney Water was that the circumstances of the overall proceedings warranted me exercising the discretion that arises from the terms of s 257B of the Criminal Procedure Act (by the use of the word “may” in that provision) to order that each party should bear their own costs of the proceedings.

136. This proposition was advanced on the basis that the liability hearing had been undertaken where Sydney Water faced three charges and had been acquitted of two of them ‑ leaving only the charge for which it was now to be sentenced remaining. This should be sufficient, it was proposed, that I conclude that, on a proper understanding of the contribution of the issues requiring consideration and determination in the liability proceedings across the entire 10‑day period of that trial, coupled with the comparative brevity of the sentencing hearing, it was appropriate that there should be no order in the Prosecutor's favour for its costs on the confined basis of costs arising out of the pumping station charge.

137. Ms Hall's oral submissions on behalf of Sydney Water on the question of costs were succinct. In her oral submissions, she said (Transcript 5 December 2022, page 27, line 42 to page 28, line 8):

HALL: ... Your Honour, turning then to the issue of costs, your Honour, that is o 7 as sought by the prosecution, and the prosecutor has very fairly conceded that costs are clearly only available for the matter for which Sydney Water has been convicted, and the submission on behalf of Sydney Water is a very simple one, and that's encapsulated in the submissions. I hear what's being said about the issue of the moiety, and I won't press that argument any further, but I still do maintain the submission that when this matter is considered in total, there has been and was indeed a very substantial hearing, and the substance of that hearing was really in effect in relation to the other two counts, which were the subject of acquittals.

In relation to this summons, there was a concession, appropriately, in my respectful submission, by Sydney Water as to the extent of the nature and extent of the overflow, but the only issue was whether there was a defence of necessity. So, given the vast bulk of the proceedings were focused on the other two matters and upon which Sydney Water was successful, it's respectfully submitted that the parties should bear their own costs.

Consideration

138. I accept that the conventional position is usually that a Prosecutor would be entitled to an order for costs in its favour when a defendant is convicted. This conventional position does not require any consideration of whether the use of the word “may” in s 257B of the Criminal Procedure Act is to be read, as is sometimes the position, as a mandatory instruction rather than a discretionary one. The Prosecutor did not propose such a reading of the provision and it is, therefore, unnecessary to explore that possibility. I therefore proceed on the basis that I am vested with such a discretion, a discretion to be exercised judicially.

139. Sydney Water's submission that there should be no order for costs across the three proceedings is to be rejected. It is a significantly misplaced submission.

140. First, although not the primary reason advanced for Sydney Water, the fact that the Prosecutor has sought (and I will order a) a payment of a moiety of the residual financial penalty (after allowance for the contribution to the Swale Project), that ordering of a moiety is, for the reasons explained by me in Environment Protection Authority v Forestry Corporation of NSW [2022] NSWLEC 75, at [148] to [153], one that provides additional funds to the Prosecutor to support its environmental law enforcement activities. It is not some form of additional punishment being imposed on Sydney Water, it is my diversion of money for public environmental good.

141. The second proposition based on what would seem to be a “fairness and equality of outcomes” basis is also lacking in substance. First, with respect to the two offences with which Sydney Water had been charged but was acquitted (the rising main charge and the valve charge), Sydney Water had no entitlement to any costs order in its favour arising out of those charges. The circumstances pursuant to which a successful defendant can have a costs order made in its favour when acquitted are extremely limited, being circumscribed by ss 257C and 257D of the Criminal Procedure Act. It is not necessary to set out those provisions, it is sufficient to note that they have no conceivable applicability to the circumstances which permitted Sydney Water successfully to defend itself on those two charges.

142. There was nothing arising out of the results of, or the Prosecutor's conduct during, those prosecutions that remotely had the potential to engage any offsetting costs’ entitlement for Sydney Water.

143. Absent any agreement between Sydney Water and the Prosecutor as to the quantum of costs which should be paid to the Prosecutor as a consequence of the pumping station conviction meaning there will potentially need to be a detailed cost assessment process undertaken, there is nothing unusual or extraordinary about this occurring as an outcome of litigation, whether criminal or civil. The appropriate course, necessitated by s 257G(b) of the Criminal Procedure Act, is that the costs of the pumping station offence should be paid by Sydney Water to the Prosecutor as agreed or assessed. Whilst it is to be hoped that, in light of making such an order, agreement may be reached, if the assessment process needs to be triggered then that is the appropriate outcome.

144. Although these are criminal proceedings, underlying Sydney Water's position is the proposition that apportioning the costs of the liability hearing (to determine how much of those costs should be regarded as arising from the two charges for which Sydney Water was acquitted and how much should be attributed to the pumping station charge) is appropriate. This, it seems to me, would be a purely conventional costs assessment process. Although discussed in the context of civil litigation rather than criminal proceedings as is here the position, apportionment of costs on the basis of issues won or lost is not an unconventional position (James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296).

145. The Criminal Procedure Act makes express provision, in s 257G, for options as to how costs’ outcomes in criminal proceedings are to be addressed if a determination is made pursuant to s 257B that there should be a costs order in a prosecutor's favour when a defendant is convicted. I have earlier set out the terms of both provisions.

146. Here, there being no agreement between the parties as to costs, the necessary order, if the Prosecutor is to have a costs order in its favour, is mandated to be an order requiring that Sydney Water pay the Prosecutor’s costs as agreed or assessed. Potential complexity of assessment through a conventional costs’ assessment process does not provide a basis for concluding that I should decline to make such an order in the Prosecutor's favour for its costs of prosecuting Sydney Water for the pumping station offence. Mere convenience is not sufficient to depart from the ordinary position that would be expected to prevail.

147. A costs order in the form required by s 257G(b) of the Criminal Procedure Act is appropriate to be made.

Orders

148. Noting that, on 11 August 2022, Sydney Water Corporation was convicted of a breach of s 120(1) of the Protection of the Environment Operations Act 1997 by polluting waters at or near sewage pumping station SP0213 at Carramar between about 15 and 16 January 2019, the further orders of the Court are:

1. Pursuant to s 250(1)(e) of the Protection of the Environment Operations Act 1997, Sydney Water Corporation (the Defendant) is to pay the amount of $45,000 to Fairfield City Council, within 28 days of this order, for the purposes of the “Carramar Vegetated Swale Project” (the Project);

2. For the period of 36 months from the date of these orders, public references by Sydney Water Corporation to its contribution to the Project are to be accompanied by the statement that:

Sydney Water Corporation’s contribution to the Carramar Vegetated Swale Project is part of a penalty imposed by the Land and Environment Court on 2 February 2023 after Sydney Water Corporation was prosecuted by the Environment Protection Authority and convicted of one offence against s 120 (water pollution) of the Protection of the Environment Operations Act 1997 (NSW);

3. The Prosecutor is to write to the Mayor and to the Chief Executive of Fairfield City Council advising that the Defendant has been ordered to contribute $45,000 toward the cost of the Project - with the letter also advising that, if for any reason the project does not proceed, it is the Court's intention that the funds provided by Sydney Water will be used for environmental purposes within the Fairfield local government area in a fashion consistent with s 250(1)(e) of the Protection of the Environment Operations Act 1997;

4. The Defendant is fined an additional monetary penalty of $155,000;

5. Pursuant to s 122 of the Fines Act 1996, a moiety of 50% of the monetary penalty in (4) is to be paid to the Prosecutor;

6. Pursuant to s 248(1) of the Protection of the Environment Operations Act 1997, the Defendant is to pay the Prosecutor’s costs and expenses incurred during the investigation of the offence in the agreed amount of $14,645.80;

7. Pursuant to s 257B and s 257G(b) of the Criminal Procedure Act 1986, the Defendant is to pay the Prosecutor’s legal costs as agreed or assessed;

8. Pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, the Defendant, at its expense, is to:

1. within 28 days of the date of this order, cause a notice of a minimum size as near as practicable to 180 square centimetres to be published within the first 12 pages of the Daily Telegraph, with the text of such notice and the Sydney Water Corporation logo (of reasonable size) to be as set out in Annexure A to these orders; and

2. within 42 days of the date of this order, provide to the Environment Protection Authority, a copy of the entire page of the Daily Telegraph on which the notice was published in accordance with order 8a above;

9. Pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997 (NSW), the Defendant is to:

1. within 14 days of the date of this order, publicise the offence and the orders made against it by posting the text of Annexure B to these orders, together with a photograph of Prospect Creek at Carramar 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 Environment Protection Authority in the post. The post is to be made between the times of 8.00 am and 10.00 am or between 4.30 pm and 6.30 pm on a weekday. This post must remain a pinned post on Facebook that remains at the top of the Sydney Water Facebook page for a minimum of seven days;

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

@SydneyWaterNews was prosecuted by @NSW_EPA and convicted of an offence of polluting waters following an overflow of at least 280,000 litres of untreated sewage into Prospect Creek in January 2019. Ordered to pay $200,000 in penalties: [insert hyperlink to judgment as published on NSW Caselaw website]

together with a hyperlink directly to the Court’s judgment as published on the New South Wales Caselaw website (as indicated above). The tweet is to be made between the times of 8.00 am and 10.00 am or between 4.30 pm and 6.30 pm on a weekday. This tweet must remain a pinned tweet on Twitter that remains at the top of the Sydney Water Twitter page for a minimum of seven days. The Environment Protection Authority may tag Sydney Water’s Twitter account in any EPA tweets about the judgment; and

3. within 14 days of the date of this order, publicise the offence and the orders made against it by posting a photograph of Prospect Creek at Carramar with the words “Sydney Water convicted of polluting water” in bold text inserted over the top of that photograph on its Instagram account with the following caption:

@sydneywater was prosecuted by @NSW_EPA and convicted for polluting the waters of Prospect Creek with at least 280,000 litres of untreated sewage in January 2019. Sydney Water was ordered to pay a total of $200,000 in penalties, including $45,000 to Fairfield City Council for an environmental project: [insert URL to judgment as published on NSW Caselaw website]

#sydneywater #environment #EPA #NSWEPA #prospectcreek #carramarreserve

together with a URL to the Court’s judgment as published on the New South Wales Caselaw website (as indicated above). The post is to be made between the times of 8.00 am and 10.00 am or between 4.30 pm and 6.30 pm on a weekday. This post must remain on its Instagram account for a minimum of one month;

10. Pursuant to s 250(1)(b) of the Protection of the Environment Operations Act 1997, the Defendant must, within 14 days of the date of this order, cause a notice in the form of Annexure B, at a minimum size of A4 and on the Defendant’s letterhead, to be placed in the letterboxes of all properties (including, but not limited to, residential and commercial properties):

1. which overlook and/or back onto Prospect Creek between the Sandal Crescent Railway Bridge at Carramar NSW 2163 and Liverpool Golf Club at Lansvale NSW 2166; and

2. on Knight Street, Lansvale NSW 2166; and

11. Within seven days of the date of delivery of the notice referred to in the previous order, the Defendant must provide to the Prosecutor a copy of the final form of the notice together with a list of the street addresses to which the notice was delivered.

**********

​​​​​​​Annexure A

Terms of Publication notice

[Sydney Water Corporation logo]

Sydney Water Corporation convicted and penalised for water pollution after overflow of raw sewage into Prospect Creek

Sydney Water Corporation was prosecuted by the Environment Protection Authority (EPA) for one offence of water pollution after at least 280,000 litres of untreated sewage overflowed into Prospect Creek at Carramar Reserve on 15-16 January 2019. Sydney Water was found guilty of the charge.

The combined overflows impacted the water quality of Prospect Creek and this continued for up to 6 days. The untreated sewage released from the pumping station contributed to the unpleasant odour and a potential health risk to anyone exposed to the waters of Prospect Creek. On 11 August 2022, the Land and Environment Court convicted Sydney Water of the offence. Following a sentencing hearing on 5 December 2022 to determine the appropriate penalty to be imposed on Sydney Water, on 2 February 2023 the Court ordered Sydney Water to:

1. pay a total monetary penalty of $200,000 including $45,000 to Fairfield City Council for an environmental project,

1. pay $14,645.80 to the EPA for the EPA’s investigation costs,

1. pay the EPA’s legal costs as agreed or assessed,

1. publish details of the offence on Twitter, Facebook and Instagram,

1. cause this notice to be published at its own expense.

Annexure B

Letter to residents

[Sydney Water letterhead]

Dear resident

I am writing to you to in respect of a water pollution incident that occurred from approximately 11:59 pm on 15 January 2019 to 1:26 am on 16 January 2019 from the sewage pumping station located in Carrawood Reserve.

On 14 January 2019, Sydney Water Corporation was notified of a sewage overflow from a broken rising main at Carrawood Reserve, Carramar. In order to minimise the overflow from the break and the resultant environmental impacts it was necessary for Sydney Water to excavate and replace the broken section of the rising main. On 15 January 2019, Sydney Water took steps necessary to isolate, remove and replace the broken section of the rising main. This included putting in place precautions to manage the risk of further overflows during these works including pumping and tankering waste water from the pumping station.

Despite those precautions, there was an overflow of untreated sewage from the pumping station for about 1 hour and 27 minutes. It is estimated that at least 280,000 litres of untreated sewage discharged directly into Prospect Creek from the pumping station.

The combined overflows impacted the water quality of Prospect Creek and this continued for up to 6 days. The untreated sewage released from the pumping station contributed to the unpleasant odour and a potential health risk to anyone exposed to the waters of Prospect Creek.

The Environment Protection Authority (EPA) subsequently prosecuted Sydney Water. Sydney Water was acquitted on two charges but convicted of one offence of water pollution contrary to section 120 of the Protection of the Environment Operations Act 1997 in respect of the overflow from the pumping station.

On 11 August 2022, the Land and Environment Court convicted Sydney Water of the offence. Following a sentencing hearing on 5 December 2022 to determine the appropriate penalty to be imposed on Sydney Water, on 2 February 2023 the Court ordered Sydney Water to:

1. pay a total monetary penalty of $200,000 including $45,000to Fairfield City Council for an environmental project at Quest Avenue, Carramar, which seeks to improve the quality of stormwater running into Prospect Creek,

2. pay $14,645.80 to the EPA for the EPA’s investigation costs,

3. [pay the EPA’s legal costs as agreed or assessed,

4. publish details of the offence in the Daily Telegraph and on Sydney Water’s Twitter, Facebook and Instagram accounts, and

5. cause this notice to be delivered at its own expense.

The Court’s judgment on sentence may be accessed at [Insert URL for judgment on Caselaw NSW].

Sydney Water takes its obligations in relation to the prevention of water pollution very seriously. Sydney Water is very sorry that this overflow occurred and apologises for any inconvenience that was caused.

[Signature block of Managing Director]

Decision last updated: 02 February 2023