Environment Protection Authority v Transgrid - [2003] NSWLEC 18

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v TransGrid [2003] NSWLEC 18

PARTIES:
PROSECUTOR:
Environment Protection Authority
DEFENDANT:
TransGrid

FILE NUMBER(S): 50022 of 2002; 50023 of 2002; 50024 of 2002 and 50025 of 2002

CORAM: Lloyd J

KEY ISSUES:
Environmental Offences :- water pollution - plea of guilty - penalty -aggravating factors - State owned corporation - special obligation of - non-compliance with standards and procedures - mitigating factors - rehabilitation and remediation work - totality principle inapplicable for four separate offences at four separate locations

LEGISLATION CITED: Energy Services Corporations Act 1995
Energy Services Corporations Amendment (TransGrid Corporatisation) Act 1998 s 6B
Protection of the Environment Operations Act 1997 s 120, s 123, s 241
Protection of the Environment Administration Act 1991
Rural Fires Act 1997 s 63
State Owned Corporations Act 1989 s 8

CASES CITED: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683;
Department of Land and Water Conservation v Orlando Farms Pty Ltd (1998) 99 LGERA 101;
Environment Protection Authority v Boral Resources (NSW) Pty Ltd [2002] NSWLEC 232;
Environment Protection Authority v Sydney Water Corporation [2000] NSWLEC 156;
Environment Protection Authority v Tenterfield Shire Council (2000) 112 LGERA 173; [2000] NSWLEC 229;
R v Holder [1983] 3 NSWLR 245;
R v Thomson (2000) 49 NSWLR 383;
The Queen v De Simoni (1981) 147 CLR 383

DATES OF HEARING: 18/11/2002, 19/11/2002 and 20/11/2002

DATE OF JUDGMENT:
02/13/2003

LEGAL REPRESENTATIVES:

PROSECUTOR:
Mr S J Rushton SC
SOLICITORS:
Stephen Garrett
DEFENDANT:
Mr N Hemmings QC (solicitor)
SOLICITORS:
Allens Arthur Robinson

JUDGMENT:

- 38 -

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

50022 of 2002

50023 of 2002

50024 of 2002

50025 of 2002

Lloyd J

13 February 2003

Environment Protection Authority

Prosecutor

TransGrid

Defendant

JUDGMENT

Introduction

1 The defendant pleaded guilty to four offences against s 120 of the Protection of the Environment Operations Act 1997 (“PEO Act”) in that it caused waters to be polluted. That section headed “Prohibition of pollution of waters” provides as follows:

(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.

2 The summonses allege offences against s 120(2) of the PEO Act. This appears to be a misnomer. There is no offence created by s 120(2). The offence is created by s 120(1). Section 120(2) is merely a definition of the word “pollute”: see Environmental Protection Authority v Boral Resources (NSW) Pty Ltd [2002] NSWLEC 232 at [3]. The defendant, however, has not taken the point and wishes to have the matters disposed of by way of pleas of guilty.

3 The maximum penalty for the offence in the case of a corporation is $250,000 and in the case of an individual is $120,000 (s 123 of the PEO Act).

4 The relevant facts which gave rise to the commission of the offences are derived largely from an agreed statement of facts. The effect of the pollution and of the rehabilitation measures subsequently undertaken by the defendant are not the subject of the agreed statement of facts. On these questions the parties have relied upon the evidence of several experts, whose evidence I summarise below.

The Facts

5 The defendant is a State owned corporation created under the Energy Services Corporations Amendment (TransGrid Corporatisation) Act 1998, the Energy Services Corporations Act 1995 and the State Owned Corporations Act 1989.

6 The defendant is responsible for transmitting bulk electricity from power stations in New South Wales and interstate to electricity distributors. It is responsible for over 12,000 circuit kilometres of high voltage transmission lines in New South Wales. The transmission lines are supported by structures or towers situated in land corridors occupied by the defendant, being easements that are typically about 60 metres wide.

7 Several of the defendant’s 330 kilovolt transmission line easements run from Tumut and transmit electricity generated by the Snowy Mountains hydroelectric scheme. These lines transmit a considerable amount of the electricity needs of the Australian Capital Territory, Victoria and the Sydney metropolitan area. They run through private land, State forests, Crown land, national parks and nature reserves.

8 Each transmission line easement is identified by a particular number (for example, easement 051, easement 02 etc). Within each easement there are structures or towers that support the transmission lines. Each of these structures are sequentially numbered starting with structure 1, then structure 2 and so on.

9 It is necessary for the defendant to properly control the vegetation within the transmission line easements to prevent fires from occurring, which may in turn disrupt the supply of electricity and threaten public safety. Between the structures that support the transmission lines, the transmission lines curve down or sag and swing out depending upon the electricity load and the ambient weather conditions at the time. The amount of clearance between the vegetation and the transmission line is dependent upon the amount of sag and swing as well as further allowances for electrical clearance and vegetation regrowth. The conductor or wire will be at its closest to the ground or maximum sag when it is at the maximum operating temperature. The additional amount of sag can be typically four to six metres. The allowable height of vegetation under the transmission line is determined by the height of the conductors (or wires) at their maximum operating temperature. If the vegetation grows too close to the conductors, there is a risk of an arc or spark (electrical flashover) forming between the conductor and the tree. The controlling equipment on the transmission line will sense the fault and will cause the line to trip out of service. This is known as a tree fault trip. The electrical flashover can cause a fire, as the tree is ignited. If the transmission lines come into contact with trees it can cause short circuits and fires. If there is a bushfire that passes through the easement, sufficiently tall trees within the easement can catch fire and automatically take the transmission lines out of service posing a threat to the reliability of supply of electricity.

10 Originally when the easements were constructed in the 1960’s and early 1970’s, it was normal practice for them to be extensively cleared of all vegetation so as to prevent fires and faults. Over the last 10-15 years, due to soil erosion and other environmental concerns, the practice has been to remove or lop tall-growing vegetation that poses a risk to the transmission lines while also maintaining a low ground cover of vegetation (such as shrubs and grasses) to prevent soil erosion.

11 Good easement management should involve both controlling the growth of taller vegetation that may encroach within the transmission lines and cause a fire or lead to a risk of disruption, and maintaining a ground cover of vegetation (namely, shrubs and grasses) to prevent soil erosion and suppress weed growth.

12 Since the transmission lines were originally constructed and the easements cleared at ground level, there has been a gradual increase in the height of the vegetation below the transmission lines. There has also been a build-up of fuel on the ground as a result of felled timber and undergrowth being left within the easement. The build-up of vegetation growth has predominantly occurred in parts of the easements that are within national parks, nature reserves and State forests. This build-up became critical in early 2001. The reduced clearance between the transmission lines and vegetation was highlighted when there was a tree fault on the 051 easement that resulted in a fire in State forests during a period of abnormally high temperatures and heavy demand.

13 The four offences relate to four areas within the easements that were cleared by the defendant from March 2001 to May 2001. These four areas are referred to in the evidence as Site 1, Site 2, Site 3 and Site 4. Each charge and the site to which it refers are as follows:

No. 50025 of 2002
Site 1 Situated in the Bago State Forest, within the 051 330 kilovolt transmission easement from Lower Tumut substation to Wagga Wagga in the vicinity of structure 13 to structure 14. Clearing occurred on or about 2 May 2001 and resulted in a pollution of an unnamed watercourse or water channel which runs into a tributary of the Tumut River and the Blowering Reservoir.
No. 50024 of 2002
Site 2 Situated in the Bago State Forest, within the 07 330 kilovolt transmission easement from Lower Tumut substation to Canberra in the vicinity of structure 9 to structure 10. Clearing occurred on or about 26 April 2001 and resulted in a pollution of an unnamed watercourse or water channel which flows to the Tumut River and Jounama Pondage.
No. 50023 of 2002
Site 3 Situated in the Bimberi Nature Reserve within the 01 330 kilovolt transmission easement from Upper Tumut substation to Canberra in the vicinity of structure 201 to structure 202. Clearing occurred on or about 14 March 2001. The waters polluted were an unnamed watercourse or water channel being a tributary of Flea Creek, which in turn runs into the Goodradigbee River.

No. 50022 of 2002

Site 4

14 As a result of a fire within one of its easements in early 2001, the defendant decided after a meeting of senior staff of its Southern region on 8 February 2001 that it needed to embark on an urgent program to clean the easements at and near the Snowy Mountains. Due to the extent to which the vegetation within easements had became overgrown, the safety reasons and the urgent nature of the work, the defendant elected to subcontract two companies with bulldozers and excavators to clear the easements. In some cases it dispensed with the normal tendering procedures to quicken the process.

15 After the meeting of 8 February 2001, Mr J Blomley, who held the position of Team Leader – Lines East, engaged several contractors on behalf of the defendant to undertake the clearing of the easements. The defendant wanted contractors who were available on short notice and who were equipped with suitable equipment. Two of those contractors, Rye Plant Hire and Trakton Engineering, were recommended to Mr Blomley by State Forests, by the National Parks and Wildlife Service and by the Snowy Mountains Hydro Electric Authority as they had previously worked for those organisations.

16 D&LJ Hamilton Pty Ltd trading as Trakton Engineering (“Trakton”) was engaged by the defendant to undertake clearing in parts of the easements including the clearing of Site 1 and Site 2. The contract was for the hire of earthmoving equipment and labour. Mr Blomley instructed Trakton to use a blade and not a rake at the end of its bulldozers. Trakton was told by Mr Blomley that the regrowth had to be grubbed out and that it was to clear up rubbish and blackberries. Trakton’s principal, Mr D Hamilton was told by Mr Blomley that a person from TransGrid would be on site at all times to supervise Trakton’s employees. During the clearing Trakton was not instructed by the defendant to carry out any work that prevents soil erosion or prevents water pollution.

17 Hubu Pty Ltd trading as Yass Earthmovers (“Yass”) was contracted by the defendant to undertake clearing along the easements including at Site 3 and Site 4. As the defendant wanted the clearing to be done urgently, the normal tendering procedures were dispensed with. No formal specifications for the quotation were provided by the defendant to Yass and Yass’ rates were obtained by Mr Blomley from Mr J Field, the managing director of Yass, over the telephone and by facsimile. Mr Blomley wanted to hire Yass to clear the easements with a bulldozer and have an operator. The defendant was to supply the site supervisor particularly since Yass’ employees would be working under power lines.

18 From February 2001 to May 2001 the defendant embarked on this urgent clearing program of its easements using the contractors. The clearing program involved the clearing of vegetation within eight of its easements, traversing approximately 134 kilometres of land. The clearing program took place on 60 properties and it included clearing 45 kilometres of easements within national parks. The extent of clearing of the easements varied. In large parts of the cleared easements, virtually all vegetation was cleared leaving bare earth. In other parts there was selective vegetation removal and a ground cover of vegetation remained after the clearing took place.

19 On 4 May 2001 the prosecutor became aware of the fact that clearing had occurred and that no sediment controls had been put into place by the defendant to prevent the bare earth from washing into the nearby waterways. There were no sediment fences erected, the windrows were not positioned to prevent erosion and it appeared that little regard had been given to environmental issues. The prosecutor’s subsequent investigation established that in places there was a strong likelihood for the exposed soil to erode and wash into waters during wet weather. In some places vegetation and soil had been pushed into some of the watercourses during the clearing processes. If ground cover of vegetation had been left along the cleared easements, it would have assisted in the prevention of excessive soil erosion.

20 Each of the four sites to which the summonses relate is a few hundred metres long and about 60 metres wide.

Site 1

21 Mr G Millerick, a patrolman who had been working for the defendant and its predecessor organisation for 23 years, supervised an employee of Trakton, Mr K Noseda, in the clearing of Site 1 as well as other parts of the easements. Mr Millerick reported to Mr Blomley. Mr Blomley was in charge of the entire clearing program. Mr Millerick was chosen to undertake this task because he had good knowledge of the area as it was part of his patrol area.

22 In clearing the easement Mr Noseda drove a D8 bulldozer (one of the largest) and Mr Millerick used a chainsaw when necessary to cut down the difficult to get to vegetation. The predominant instruction given by the defendant in relation to the clearing was to get the trees down because it did not want any more bushfires. Mr Millerick took that to mean taking the easement back to its original condition, which meant to get rid of all timber and trees from the easement. Mr Millerick was not advised to leave any vegetation during the clearing or to undertake any measures at all to prevent soil erosion. Mr Millerick’s role was to supervise Mr Noseda’s work and to oversee the clearing.

23 Mr Millerick instructed Mr Noseda on occupational health and safety issues prior to the clearing but not on environmental issues or on the prevention of soil erosion. Mr Noseda commenced work on the 051 easement on or about 19 March 2001. On or about 2 May 2001 Mr Millerick supervised Mr Noseda in the clearing of Site 1. It is agreed that at that time the defendant was in management and control of Site 1.

24 Prior to the clearing, Site 1 consisted mainly of regrowth, eucalypts, wattle, tea trees and blackberry bushes. Site 1 is situated in the Bago State Forest. A copy of a topographical map of the area shows a watercourse running through and then parallel to this part of the easement.

25 As a result of the clearing, virtually all vegetation had been removed and exposed soil remained. Earth, soil and vegetation had been pushed into and near the watercourse. There was a strong likelihood that the bare and exposed soil at the site would be transported to the watercourse during wet weather. The entry of soil into the watercourse was a direct result of the D8 bulldozer scraping soil and vegetation from the land surface and pushing it to the edge of and into the watercourse. This resulted in additional soil entering the watercourse and in turn being transported downstream with the water. Additional soil that entered the watercourse would have polluted the receiving waters by increasing the concentration of suspended solids and turbidity of the waters. Photographs of Site 1 confirm that the land had been cleared such that the bare soil remained. The clearing of the land surface both exposed and disturbed the soil surface. This resulted in an accelerated rate of soil erosion of the land, which may have caused run-off (that is eroded soil and water to be directed into the watercourse when it rained).

26 Under environment protection licences used to prevent water pollution during clearing activities, activities such as this should not take place within 20 metres of the watercourse. This is the minimum standard buffer area that should be kept around watercourses and is an area in which no bare earth clearing should be undertaken. Such a buffer is designed to filter out soils and earth if the polluted run-off is carried towards the watercourse.

27 There is a causeway crossing over the watercourse at this site on an access road that runs along the transmission line easement. The bulldozer had used the crossing when the clearing was undertaken. The causeway crossing should have been made of a stable, natural surface or constructed of an erosion resistant material. Moreover, the approach to the causeway crossing should have been appropriately drained to prevent soil eroding into the watercourse. If such mechanisms had been adopted, and they were not, it would have prevented polluted water from flowing down the approach to the causeway crossing and from flowing directly in the watercourse.

Site 2

28 The watercourse, which receives water from an underground spring, traverses Site 2. This watercourse is mapped on topographical maps. Mr Blomley assigned Mr P Brady to supervise the clearing of parts of the 07 easement, including Site 2. Mr Brady had been employed by the defendant and its predecessor organisation for about 20 years. Mr Brady had been previously involved in the clearing of the 051 easement. Mr Blomley instructed Mr Brady to cut down with a chainsaw any trees that the bulldozer could not get to. No instructions at all were given to carry out the clearing in such a way, or to put into place such mechanisms, as to prevent soil erosion.

29 On or about 23 April 2001 Mr Brady met Mr B Faulder who was Tracton’s employee that drove the bulldozer on the 07 easement around structure 6 to structure 7. Mr Brady instructed Mr Faulder that everything had to go and to use the blade of his bulldozer to sweep the easement. Mr Brady told Mr Faulder that they (that is the defendant) wanted the easement bare. Mr Faulder then kept the blade of his bulldozer at ground level to sweep up all the vegetation. The vegetation cleared from Site 2 included eucalypts, tea trees and black hickory. The vegetation ranged between 8 to 10 feet in height and 25 to 30 feet in height. Site 2 was cleared on or about 26 April 2001. It is agreed that at the time the defendant was in management and control of the site. Mr Brady was present whenever Mr Faulder carried out the clearing.

30 Prior to supervising Trakton’s employee in the clearing of the easements, Mr Brady had undertaken an environmental awareness course on 8 March 2000 which, it was said, would assist him with environmental clearing work. Mr Brady said, however, that he had not been trained in relation to environmental issues specifically relating to clearing. Mr Brady gave no instruction at all to Mr Faulder either in relation to environmental issues or in relation to preventing soil erosion.

31 The clearing of Site 2 resulted in most vegetation being removed from the site. The clearing occurred right up to the edge of the watercourse traversing the site. During the clearing, vegetation and soil was pushed by the bulldozer into the watercourse. When Site 2 had been cleared, no attempt was made by the defendant to install drainage mechanisms on the path taken the bulldozer across the watercourse, even though it was practicable to do so. The run-off from this machine cleared path, together with soil erosion from the disturbed surface of the land, would flow directly into the watercourse and pollute it by raising the concentration of suspended sediment in the water and increasing the turbidity of the water. The failure to install a stable structure for the bulldozer on which to cross the watercourse resulted in soil disturbance of the watercourse. The bulldozer was driven through the watercourse when the soil was saturated. The action of driving the machine through the watercourse would have caused the water in it to become polluted by disturbing its bed. This would have also raised the concentration of suspended sediment in the water and increased the turbidity of the water.

32 After the defendant finished clearing Site 2, the disturbance on the site continued to contribute pollution to the water by making the bed of the watercourse more susceptible to erosion by water flow. As noted above, during the clearing, soil and vegetation were pushed into the watercourse. Moreover, the clearing would have resulted in soil erosion to accelerate at this site. The slope of the land tends to direct the run-off, carrying with it eroded soil, from the land surface to the watercourse. Disturbance of the soil immediately adjacent to the watercourse will make the soil more likely to be eroded with flow of water into the watercourse. The run-off entering the watercourse and the disturbed soil in and immediately adjacent to the watercourse caused pollution of waters in the watercourse by raising the concentration of suspended sediment in the water and increasing the turbidity of the water. If an environmental protection licence for clearing activities had been granted for the site, then it would have been a standard condition of such licence that the watercourse be crossed using a stable structure comprising of either a properly constructed causeway, or culvert, or bridge.

Site 3

33 This site is situated in the Bimberi Nature Reserve. A watercourse traverses the easement. On or about 14 March 2001 the defendant cleared Site 3 using a bulldozer driven by Mr T Brown and supplied by Yass. It is agreed that at the time the defendant was in management and in control of Site 3.

34 Mr Bromley had arranged for the defendant’s employee, Mr A Catlin to supervise the clearing of this part of the easements as well as other parts of the easements. Mr Catlin’s duties with the defendant included easement maintenance and clearing. He had frequently patrolled the easements to carry out inspections. Mr Bromley instructed Mr Catlin to get the clearing done as soon as possible due to the risk of fire and told him that seeding was to take place after the clearing. Mr Catlin was told to supervise the driver of the bulldozer to make sure he was doing the clearing correctly.

35 During the clearing operation, Mr Catlin instructed Mr Brown, the driver of the bulldozer, to lower the blade on the bulldozer so as to clear more of the vegetation. This contributed to virtually all vegetation being removed at the site. Mr Catlin gave no instruction to Mr Brown on environmental issues or on the prevention of soil erosion. Mr Catlin understood that the clearing was to be done first and then come back later with an excavator to put in the erosion controls, that is to clean it up, sow it down and do whatever that was needed to be done. Erosion controls were not in place at the time of the clearing.

36 When Site 3 was cleared it resulted in virtually all the vegetation being removed. A large mass of soil and vegetation was pushed into the watercourse. The clearing occurred on both sides of the watercourse. The land surface is sloping generally towards the watercourse. The clearing resulted in some of the cleared vegetation together with the soil from the disturbed land surface being pushed from the land surface towards and into the watercourse. The extensive removal of vegetation from the land surface during the clearing would accelerate the erosion of the exposed soil in the easement at this location. As a result of the clearing, the run-off from the rain falling on the cleared easements was likely to erode and transport the soil from the land surface to the watercourse.

37 If this site had been subject to the standard conditions of an environment protection licence for clearing activities then those conditions would have required the protection of the vegetation and the land on either side of the watercourse. The width of the protected area would have been a minimum of 10 metres on either side of the top of the bank of the watercourse. Within the protected areas, activities such as tree felling, machinery operation and placement of soil and debris would have been prohibited. This 10 metres buffer would have acted as a filter for the run-off of the soil and the earth from the surrounding area prior to going into the watercourse.

Site 4

38 This site is situated in the Brindabella National Park. The defendant cleared Site 4 on or about 17 April 2001. The clearing removed virtually all vegetation from the easement. A watercourse traverses the site. The watercourse is shown on topographical maps.

39 Mr Bromley assigned Mr Catlin to supervise Mr J Templeman and Mr I Roberts, employees of Yass, in the clearing of the 07 easement in areas including Site 4. The employees of Yass operated a D7 bulldozer at this site.

40 As a result of the clearing, a large amount of soil, spoil and vegetation was pushed into the watercourse. Immediately to the north of the watercourse the easement slopes steeply down towards it. Virtually all vegetation had been removed from that part of the easement, resulting in a strong likelihood of the soil and the earth being eroded into the watercourse during and after rain. The easement surface was left as essentially bare soil with little or no vegetation growing on it. The vegetation removed from the land surface, together with soil from the land surface, had been pushed by the bulldozer into the watercourse during the clearing. The essentially bare earth surface resulting from the clearing activities at Site 4 would have increased the rate of soil erosion at this location. The steep slope of the land at this location directs the run-off from the land surface towards the watercourse and thereby would cause pollution of water in the watercourse.

41 The run-off with the rainfall is likely to de-stabilise the soil in the windrow immediately adjacent to the watercourse and cause it to go into the watercourse. The entry of the soil into the watercourse would in turn cause water in it to be polluted by raising the concentration of suspended sediment in the water and increasing the turbidity of the water. In other words, the run-off flowing along with rainfall on the cleared land within the transmission line easement will flow into the watercourse carrying with it soil eroded from the cleared land surface. Any eroded soil material, together with soil and vegetative debris that enters into the watercourse by the action of rainfall and water flow will pollute the water in the watercourse by raising the concentration of suspended solids in the water and increasing the turbidity of the water.

42 If Site 4 had been subject to an environment protection licence for clearing activities then the standard conditions of such a licence would have required the protection of land on either side of the watercourse. The width of this protected area would have been a minimum of 10 metres on either side of the top of the bank of the watercourse. Within this protected area activities such as tree felling, machinery operation and the placement of soil and debris would have been prohibited.

43 The parties agree that some of the primary causes which led to the manner of clearing and resulted in these offences include the following:

The Expert Evidence

44 I turn now to consider the expert evidence on the impact of the clearing.

Extent and effect of the clearing

45 Mr P R Scanes, the Manager of the Coastal Catchment Unit of the Water Science Section of the Environment Protection Authority, inspected the four sites (Site 1, Site 2, Site 3 and Site 4) on 14 June 2001 and 15 June 2001. Mr Scanes made the following observations.

46 Site 1. At this site Mr Scanes observed that traversing the site was an unnamed tributary of the Tumut River and the Blowering Reservoir. He observed that the land had been cleared to such an extent that almost the entire site was left as exposed bare soil. Mr Scanes estimated that less than one per cent of the site still retained some cover by grasses. He saw that the soil was considerably disturbed, the upper organic layers of which had been removed from an estimated 95 per cent of the site. The unnamed tributary flowing from west to east through the easement had been entirely covered by vegetation cleared from the site and placed in or pushed into the streamline. At the boundary of the easement the unnamed tributary connects with another watercourse and soil and vegetation had been piled on the very edge of this watercourse. In places, parts of this pile of soil and vegetation were in the watercourse. Immediately prior to Mr Scanes’ inspection, there had been light rainfall and he saw evidence of fine sediment moving along the slopes of Site 1.

47 Site 2. Mr Scanes saw an unnamed tributary which forms the head of another unnamed tributary and which in turn flows into the Tumut River and Jounama Pondage. The clearing resulted in about 40 per cent of the site being cleared of all vegetation and bare soil being exposed on the northern slope; and about 60 per cent of the vegetation being cleared and bare soil being exposed on the western and southern slopes. Wherever the land was exposed, he observed that the soil was considerably disturbed and the upper organic layers of it removed from what, he estimated to be, 95 per cent of the cleared area of the site. The bed of the watercourse in this part of the easement was, to different degrees, covered by vegetation that was cleared from the site and placed along the path of the watercourse. Immediately prior to his inspection there had been light rainfall and there was evidence of movement of fine sediment on the slopes of the site. Mr Scanes observed some evidence of the movement of fine sediment 25 metres downstream to the edge of the easement, where the watercourse flows through uncleared vegetation. In this area he also observed holes in the bank near the waterline, presumably created by freshwater crayfish (Cherax).

48 Site 3. Mr Scanes determined from topographical maps that this site was crossed by an ephemeral unnamed tributary of Brindabella Creek and hence Goodradigbee River. He observed that there was exposed bare soil over almost the entire site. He estimated, from his observation, that less than one per cent of the site still retained some cover by grasses. The upper organic layers of the soil had been removed, presumably from the clearing processes, from an estimated 90 per cent of the site. The unnamed tributary, which flows from east to west through the easement, was, for most of its length through the easement, bordered on both its sides by vegetation that was cleared from the site and placed on the banks. There was evidence of movement of fine sediment on the slopes of the site. There was also evidence of erosion gullies beginning to form.

49 Site 4. This site includes an ephemeral unnamed tributary of Flea Creek and hence Goodradigbee River. This site has extremely steep slopes. Mr Scanes observed that the land had been cleared to such an extent so as to expose the bare soil over almost the entire site. He estimated that less than one per cent of the site still retained some cover by grasses. The soil was also considerably disturbed by the clearing and the upper organic layers had been removed from an estimated 90 per cent of the northern part of the site and some 40 per cent of the southern part of the site. The unnamed tributary which flows from east to west through the easement was, for most of its length, covered by vegetation that was cleared from the site and intentionally placed in the stream’s bed. There was evidence of movement of sediment fines on the slopes of the site.

50 Overall conclusions. Given these observations it was Mr Scanes’ opinion that at the sites which he visited, the majority of the vegetation had been removed from steep to very steep slopes exposing the soil; the majority of the organic upper layer of soil was also removed; these actions made the soil unstable rendering them to likely move overland by rainfall into waters, which was observed to a limited extent at each of the sites; and the presence of additional soil in the waters has the potential to cause harmful effects on aquatic organisms.

51 Second visit. On 25 September 2001 and 26 September 2001 Mr Scanes again visited the four sites (Site 1, Site 2, Site 3 and Site 4). The sites had all changed remarkably as a result of remediation and redistribution of downed timber and vegetation. Timber and vegetation had been removed from the edges of the easements and from within the drainage lines and placed in rows across the slopes. Site 1 and Site 2 had well established covers of sown grass. The grass had not established well at Site 3 and Site 4. At Site 2 Mr Scanes inspected a pool in the creek which had shown signs of accumulated sediment on the first visit. This pool was now almost filled with sediment.

The effect on fish

52 The prosecutor relies upon the evidence of Dr J H Harris who is a specialist in river ecology, freshwater fish biology and fisheries, including the ecological effects of human-induced disturbance on freshwater systems and associated rehabilitation programs. Dr Harris inspected all the sites in September 2001. Dr Harris listed a number of fish species as having being recorded in the headwater streams of the upper Murrumbidgee River catchment, including Macquarie Perch (Macquaria australisica) which is listed as a vulnerable species in New South Wales and the Purple-Spotted Gudgeon (Mogurnda adspersa) which is proposed for listing as an endangered population in New South Wales.

53 Dr Harris observed that small headwater streams were present at each of the four sites. He formed the opinion that the clearing had made the sites vulnerable to erosion because of the loss of vegetation and soil disturbance and further, that rainfall on these areas would lead to rapid erosion followed by accelerated sedimentation with inputs of nitrogen and phosphorus, in the local stream channels.

54 Site 1. Dr Harris noted two small temporary or ephemeral tributary streams which combine to form a more perennial stream on the southern boundary of the easement. One of these two tributaries runs obliquely across the easement and is crossed by the easement’s access track. The other tributary follows the southern boundary just outside the easement. Their confluence on the southern boundary gives rise to the perennial stream. Habitat conditions in the pools of the perennial stream appear to have been suitable for most of the area’s fish species. The following was evident to Mr Harris: a small dam of approximately two metres deep is impounded in the perennial stream that is beyond the site of debris from the clearing along the stream bank and soil movement into the stream bed. Dr Harris noted that the stream bed was extensively sedimented with gravel, soil and silt, which was apparently of recent origin since it was unconsolidated and not well sorted; water in the dam was turbid, indicating suspended clay particles; and there was significant growth of attached algae on the stream bed, suggesting the presence of nitrogen and phosphorus in the water.

55 Site 2. Dr Harris noted two small ephemeral streams that join at the site before flowing towards Jounama Pondage. The main stream drainage line runs almost at right angles across the site and is crossed by the easement’s access track. The second ephemeral stream arises within the site from a small spring and joins the first below the easement’s access track. The resultant second-order stream flows towards a steep small valley in an undisturbed forest outside the easement. There was no fish habitat apparent at the site and only a small, shallow pool which may have provided limited habitat for about 150 metres downstream. Several crayfish burrows were seen on the stream bank at and downstream of the site. There was recent land surface erosion and increased sedimentation in the stream with algal growth extending throughout and downstream of the site. Pools immediately downstream of the site appeared to have been recently sedimented.

56 Site 3. Dr Harris noted a first-order ephemeral stream channel that has no fish habitat within the site. The channel, a tributary to Brindabella Creek, joins a permanent second-order stream about 300 metres downstream and which then flows roughly parallel to the easement. This larger stream provides good habitat conditions for small-bodied fish. Although extensive soil movement was evident at the site, no sedimentation off the site was apparent at this stage apart from the slight clay turbidity of the water in small remnant pools of the first-order stream.

57 Site 4. Dr Harris noted the stream channel that runs obliquely across the site was a dry, first-order ephemeral channel offering no fish habitat within the site. It is a tributary of Flea Creek. There was at the time of Dr Harris’ inspection no apparent transport of sediment to the stream beyond a few metres below the site. Abundant mountain galaxias were found by wading with a hand-held dip-net at the Flea Creek’s tributary below the site.

58 Conclusions. In Dr Harris’ opinion, sedimentation of the headwater streams at and near Site 1, Site 2, Site 3 and Site 4 will have serious adverse effects on fish in the future as a result of erosion, sedimentation and increases in the plant nutrients, nitrogen and phosphorus. These effects will result in fish eggs being smothered with silt, which will cause the eggs to die. In addition, most of the fish species listed live in a deeper pool habitat, so that any damage to such areas through infill of sediment will directly affect the local survival and abundance of these fish. Other adverse effects on fish will arise from excessive fine sediments infilling interstices of the stream and will thus reduce the habitat, abundance and diversity of the stream macroinvertebrate animals that live there. These small inverterbrate animals form the predominant diet of fish in these waters. Furthermore, if the stream channel capacity is reduced by way of sedimentation then subsequently the channel is likely to undergo accelerated lateral erosion. This will introduce further sediment and damage the riparian vegetation in the water, which is another major source of fish food. The future supply of fish food would be reduced by both of these processes. Nutrient loading in the water from increased phosphorus and nitrogen inputs will result in growth of filamentous algae for substantial distances downstream and contribute to planktonic algal growth in downstream storages. Turbidity caused by clay transport will adversely affect water quality during and after rainfall run-off.

59 Dr Harris anticipated the end result of the effects of transmission lines clearing will be the disappearance of some species locally, especially the blackfish species, namely River Blackfish (Gadopsis marmoratus) and Two-Spined Blackfish (Gadopsis bispinosus), which are more dependent on stream bed conditions. Other native species are likely to decline through various habitat changes. Habitat quality will be adversely affected for substantial distances downstream of the site. Fish biodiversity will be lost as the overall result of these changes.

60 The defendant relied upon the evidence of Mr M Lintermans, a senior aquatic ecologist, employed by Environment ACT. Mr Lintermans inspected the four sites on 25 June 2001. According to Mr Lintermans, many of the fish species occurred in the larger lowland streams in the relevant catchments. He recognised and acknowledged, however, that activities higher in the catchment certainly have the capacity to impact low altitude habitats and their biota. Mr Lintermans noted five fish species and one crayfish species from the catchments that are recognised to be threatened species at either National, State or Territory level. They are as follows:

Common Name Scientific Name Jurisdiction in which listed as threatened

Two-Spined Blackfish Gadopsis bispinosus ACT

Trout Cod Maccullochella macquariensis ACT, NSW, National

Macquarie Perch Macquaria australalica ACT, NSW, National

Silver Perch Bidyanus bidyanus ACT, NSW

Southern Pygmy Perch Nannoperca australis NSW

Murray River Crayfish Euastacus armatus Act, National
61 According to Mr Lintermans, three fish species are of prime concern in this case. They are: the Two-Spined Blackfish, Macquarie Perch and Mountain Galaxias. The first two species are recognised as threatened, with sediment addition to streams considered as significantly threatening. The third species is not listed as threatened and is the most widespread of the native species in the smaller streams of the area and hence is most likely to have experienced impact from the clearing. All three species have adhesive, demersal (sinking) eggs. The Two-Spined Blackfish and Mountain Galaxias attach their eggs directly to the substrate. Macquarie Perch broadcast their eggs near the foot of pools, so the eggs are lodged in rocky substrates of downstream riffles. Fish with demersal eggs are more susceptible to sediment impacts because the eggs can become coated with sediment, which can cause them to die. Similarly, direct attachment of eggs to substrate is impaired due to the sediment, resulting in the loss of spawning sites. Two spiny crayfish species are also of concern in this case, namely Euastacus crassus and Euastacus riekii. Both of these crayfish species are commonly recorded in small streams or wet areas at moderate to high elevations within the upper Murrumbidgee catchment. The impact of sediment on these crayfish species is not clearly understood; however, both species are usually found in places with relatively intact riparian zones and little or no evidence of sedimentation.

62 In relation to each site Mr Lintermans made the following observations.

63 Site 1. The easement is bound on the eastern side by a small stream, and it joins another small stream, which runs transversely across the easement. The easement’s access track crosses over the transverse stream. Approximately 100 metres downstream of the junction of the two streams is a small dam. Examination of a small pool in the stream, which is approximately eight metres downstream of the junction of the two streams, has revealed recent fine sediment deposition to a depth of 105 millimetres. Examination of another pool approximately 20 metres downstream of the junction of the two streams has revealed a recent fine sediment deposition to a depth of 50 millimetres. Mr Lintermans noted that the access track for vehicular traffic crossing over the stream had been blocked by a large log and that the stream bed at this location appeared to be stable. The soil and vegetation debris that had originally been pushed into the stream during the clearing had been pulled back from the stream and the vegetation pushed into windrows parallel with the stream and at right angles to the slope of the land.

64 Site 2. The easement at the site was well vegetated with only little bare ground being apparent. The easement was crossed by a drainage depression which was not carrying surface water at the time of the inspection. The floor of the drainage depression was well vegetated. At the place where the access road crosses over the drainage depression there was evidence of recent sediment deposition, but which appeared to have originated from the access road rather than the drainage depression. Inspection of a small pool approximately 25 metres downstream of the access road crossing revealed recent fine sediment deposition to a depth of 30 millimetres, probably originating from the road. The vegetation which had previously been scatted across the site had been placed into windrows at right angles to the slope. The spring on one of the seepage lines which had been disturbed by heavy machinery had revegetated with aquatic plants and there was little open water that was apparent.

65 Site 3. The easement at the site was well vegetated in parts, although not to the same extent as Site 1 and Site 2. Some bare ground was apparent although the majority of it was covered with straw mulch. A drainage line crosses the easement at right angles. The floor of the drainage line was well vegetated and there was no evidence of erosion or channel formation. There was no surface water in the drainage line at the time of the inspection. There was no evidence of eroding soil or rilling. There was no discernible recent deposition of sediment in the drainage line downstream of the easement, although old sediment deposits were apparent. There was no evidence of recent channel expansion or bank erosion downstream of the easement. Vegetation had been windrowed on the edge of the drainage depression to trap any soil movement and was also windrowed along the lower edge of the easement. The easement had been hay mulched and seeded to re-establish ground cover and minimise soil movement.

66 Site 4. This site sloped steeply towards the drainage line which obliquely crossed the easement. The easement was vegetated in parts, although not to the same extent as Site 1, Site 2 and Site 3. Some bare ground was apparent although the majority of it was covered with straw mulch. A second round of mulching and seeding had been carried out on part of the easement. Vegetation was protruding through the mulch but it was at an early stage of development and may not achieve significant ground cover until the next growing season which is in spring 2001. There was no evidence of eroding soil or rilling. There was still considerable woody debris within the drainage line which appeared to have been pushed there at the initial stages of the clearing. There was no discernible recent deposition of sediment in the drainage line downstream of the easement, although some sediment must have entered the drainage line because there was evidence of some perched soils and gravels on the edge of the drainage line. There was no evidence of recent channel expansion or bank erosion downstream of the easement. There was no surface flow in the drainage line at the time of the inspection although some underground flow or seepage may have been maintaining some small pools within the drainage line. A substantial amount of the vegetation debris that had been pushed into the drainage line during the initial stages of the clearing had been removed and windrowed on either side of it. Similar windrowing of cleared vegetation had occurred on the steep side slopes, which on the downhill side of the easement led to a forest. The easement had been hay mulched and seeded to re-establish the ground cover and minimise soil movement.

67 General conclusions. According to Mr Lintermans, it was difficult to determine what actual harm was caused to fish and their habitat prior to the rehabilitation works being carried out. Two of the fish species of highest concern are listed as threatened species (Two-Spined Blackfish and Macquarie Perch). Any deterioration in their habitat quality or their abundance is a cause for concern. Mr Lintermans did not disagree with the expert evidence of Dr Harris in relation to the potential impacts of the disturbance on the aquatic communities. The physical location where the disturbance occurred was predominantly small first-order streams. This, in Mr Lintermans’ opinion, lessens the potential impacts for these two threatened fish species since they are known to mainly occur in larger streams with lower gradients. Mountain Galaxias and the two spiny crayfish species, however, are expected to be present in the great majority of the permanent upland streams and are likely to have suffered local impacts from the sedimentation.

68 According to Mr Lintermans, the remediation and rehabilitation works carried out by the defendant appear to have been successful in preventing significant erosion and sediment deposition in streams. At Site 1 and Site 2 there has clearly been some sedimentation of aquatic habitats as demonstrated by the presence of recently derived sediments in the pools immediately downstream of the easements. At Site 1 the presence of a small dam downstream along with the significant reed beds in the inflow section of this dam would act as a biological filter. Also this has probably limited the potential and the actual downstream impacts of the sedimentation to this short section of the stream between the dam and the easement. At Site 2 the presence of sediment downstream is, in Mr Lintermans’s opinion, just as likely to have originated from a poorly maintained access crossing as from the clearing of the easement. Any Mountain Galaxias present in the adjacent and undisturbed sections of the stream would be expected to recolonise in the impacted habitat though this may take several years.

69 In Mr Linterman’s opinion, significant damage to fish habitats is unlikely to have occurred at or immediately downstream of Site 3 and Site 4. There is no indication of sediment deposition immediately downstream of the easements although, in his opinion, turbidity levels must have been higher than normal for sometime after the clearing.

70 According to Mr Lintermans, the predictions for environmental harm made by the prosecutor’s expert witnesses after the clearing of the easements were accurate and reasonable. It is his opinion, however, that the remediation and rehabilitation measures undertaken by the defendant, along with an element of good fortune, appear to have minimised the damage that has occurred. The fortuitous presence of the dam downstream of Site 1 has significantly ameliorated the extent of the impact in this stream and downstream receiving waters. The lack of intense rainfall in the catchments after the clearing has also reduced the risk and the occurrence of damage to aquatic environments. Given the apparent success of the remediation and rehabilitation works, further significant damage is unlikely to occur to aquatic environments as a result of the clearing.

Effects on macroinvertebrates

71 Evidence on this issue was adduced by Mr E Turak, a senior environmental scientist employed by the prosecutor. Mr Turak inspected the areas on 25 and 26 September 2001 with Mr Scanes. According to Mr Turak there are at least 37 macroinvertebrate families that have a high probability of being found in the watercourses and 17 of these families are particularly sensitive to pollutants and may be lost from sections of these creek system as a result of the clearing. As to the impact on each site Mr Turak made the following observations.

72 Site 1. Mr Turak noted that the stream runs orthogonal to the easement. Much of the mainstream channel has been buried and sediment has entered the channel. Upstream from the easement there is a complex in-stream habitat and a healthy riparian vegetation in the channel. Downstream from the clearing of the easement there is a stream that turns and runs parallel to the easement for approximately 200 metres. There is a small dam at the end of this 200 metre section which was probably built during the initial stages of the construction of the easement. Mr Turak noted the possibility for this dam to be filled with sediment and to overflow. If this does occur, considerable environmental damage might occur in the downstream section of the creek.

73 Site 2. There is some evidence that sediment has moved downstream in the stream channel. Currently the sedimentation appears to have affected a small section of the stream channel but further input of sediment is likely. At the upstream end of a pool there is what appears to be the burrow of a crayfish which may fill with sediment if the sediment input into the creek continues.

74 Site 3. Mr Turak noted that the creek at this location is very steep and was mostly dry at the time of inspection, but there was evidence of subterranean flow. There is currently no evidence of movement of sediment in this creek.

75 Site 4. At this location the valley is steep and much of the creek line was buried and the riparian vegetation destroyed. Although most of the creek was dry, downstream from the easement there are several pools filled with clear water. These pools and the streambed do not seem to have been affected by siltation as yet but this may happen if high rainfall occurs and sediment is moved from the catchment into the stream.

76 Potential harm to stream fauna. Mr Turak’s data shows that there are 37 invertebrate families that are likely to be present at these creeks. A total of 16 invertebrate families fall into the category of having a greater than 0.5 probability of occuring in the four sampling sites.

77 The defendant relies upon the evidence of Prof. R H Norris, Associate Professor of Fresh Water Ecology, University of Canberra. Prof. Norris went to the area on 2 May 2002, which was well after the events which gave rise to these charges and well after the commencement of the rehabilitation program undertaken by the defendant. Prof. Norris did not take any physical or chemical water quality measurements, water samples or macroinvertebrate samples at Site 2, Site 3 and Site 4 because those sites were either dry or had inadequate water at the time when he visited them. His sampling at Site 1 allowed some generalisations to be made on what might be expected at the other sites when they have flowing water. The clearing had resulted in local stream habitat destruction across the easements at all sites. There was also loss of shading, litter input and variety of macro habitats. The streams are a connected longitudinal system. The clearing activities would cause discontinuity in the streams for upstream and downstream movement of aquatic fauna. This is likely to have slightly more effect in these small streams than it would have in larger streams. In Prof. Norris’ opinion, fish distribution is unlikely to have been affected much by the habitat discontinuity because of the ephemeral nature of the streams and their steepness, with many natural barriers. Without knowing the condition of the stream before the clearing, an exact assessment of the effect cannot be made. However, Site 1, Site 2 and, in particular, Site 3, would have been most affected because of physical disturbance to the streambed and the lack of native shrubs in the riparian zone.

78 Water samples from Site 1 indicated that there was some increase in the nutrient level through the easement and downstream, but this was only minor. Site 2, Site 3 and Site 4 show virtually no evidence of sediment, and therefore of nutrient transport at any time, from the easement clearing activities. However, some sediment from the easement access road was noted at Site 2. Little or no rainfall and run-off since the clearing may have controlled this but, given the steep nature of the sites it seems likely that the risk is small.

79 The biota sample at Site 1 showed a quite rich fauna for a small headwater stream. It would be expected that the number of invertebrate families would increase downstream as the habitat complexity and the flow increase. Sampling showed that the number of different kinds of aquatic animals was significantly low in the easement and downstream compared with upstream, although there was some evidence of recovery downstream. The impacts in the easement and downstream are not likely to have been caused by water quality changes from clearing but rather from the damage to the habitat. The change downstream is almost certainly caused by the easement activities but it is not possible to determine how much damage has arisen from the recent clearing compared with the longer term establishment of the easement.

80 According to Prof. Norris, the potential harm from sediment and nutrient transport seems to be small based upon his observations; and rehabilitation activities continue to ameliorate the possibility of harm. The greatest potential harm to the aquatic biota would result from discontinuity to the stream and from habitat change through the clearing itself and from the introduction of weeds. Prof. Norris noted that detailed strategies have been included in the rehabilitation program to manage weed invasion. Almost a year after the clearing, extensive remediation has already been undertaken with mulching, windrows and planting of grasses and shrubs to follow. The evidence from all the sites’ inspection and sampling suggested that the potential effect from the run-off on the biota has been minimal, if any, outside the easements.

Sediment loss

81 The prosecutor relies upon the evidence of Prof. P S Cornish, Professor of Agriculture at the University of Western Sydney. Prof. Cornish has pioneered Australian research on the effects of rural land use and land management practices, measuring losses of sediment and nutrient pollutants from rural land and understanding the mechanisms for delivery of pollutants from their origin to surface water.

82 Prof. Cornish visited the sites on 25 September 2001 and 26 September 2001 accompanied with Dr P Scanes, Mr E Turak, Mr J Harris and Mr D Russell. Some remediation works had already been commenced at that time at all of the sites. Prof. Cornish noted that much of the vegetation had been removed and the soil disturbed in areas with steep slopes (up to about one in three, or 33 per cent). A very significant increase in the risk of soil erosion and water pollution has been created at all four sites. The risk of erosion and the magnitude of any erosion had been greatly increased by the high degree of vegetation removal, the extensive soil disturbance, steep slopes, relatively high rainfall in the region and close proximity to the streams. In his opinion the clearing at each of the four sites had greatly increased the likelihood of additional eroded soil material entering into waters. Prof. Cornish’s assessment of the likely erosion from the sites and of the erosion risk took into account the length of time required for soil to stabilise and for adequate plant cover to return. Even with remedial work in progress at the time of the inspection, the threat of erosion would continue until a full ground cover has been restored and soil stabilised. Signs of erosion were detected at all sites at the time of the inspection. In Prof. Cornish’s opinion, the recovery of full ground cover would take many months, particularly at the higher elevations and lower temperatures of Site 3 and Site 4, where up to several years for full recovery might be expected. Given the relatively high rainfall that occurs in that region it is likely that there would be further soil erosion and sedimentation prior to stabilisation of soil and complete restoration of vegetative cover. Even with remediation there would be an extended period of very high risk exposure.

83 Prof. Cornish noted that all the sites in which the clearing occurred, contain or are nearby to and directly connected to, receiving water, so that a high proportion of pollutant mobilising on the sites would actually reach the streams. The likely concentrations of phosphorus in stormwater run-off are difficult to predict, but, if an annual run-off coefficient of 0.15 for the affected sites is assumed, then these concentrations are likely to be 50 to 100 times greater than in run-off from undisturbed forest areas.

84 Although rehabilitation works had commenced by the time of inspection, it appears that in all cases the surface soil had been thoroughly disturbed over the complete ground surface. Soil disturbance greatly increases the ease with which soil erosion occurs. Even where re-compaction had occurred, a loosened surface layer of soil remained. Prof. Cornish noted rehabilitation at all of the sites involves separating timber from soil; replacing timber in windrows on the cleared land to provide some protection against further soil erosion; respreading of some soil; and sowing of grass seed. All sites showed evidence of recent minor soil erosion on the denuded surface, thus displaying the potential for these soils to erode. Soil erosion caused by rainfall and water run-off is the likely major cause of water pollution arising from the defendant’s activities at these sites. Soil erosion is the most important process that will mobilise and deliver pollutants in the form of sediment and nutrients, being mainly nitrogen and phosphorus, to the receiving waters. Duplex soils, the type found at the investigation sites, are by their nature weakly structured and susceptible to accelerated erosion. All four sites had been extensively disturbed in the clearing operation of the defendant , thus increasing the risk of detachment.

85 Prof. Cornish noted that this is a water catchment area and there are water storages located nearby. Steep slopes increase the run-off velocity and the erosive power of that run-off. Hence prudent management should avoid clearing and soil disturbance on steep sites. Once soil is detached and entrained in the run-off water, then it would be delivered to any drainage line unless flow sufficiently slows for soil particles to settle or sediment out. Steeper slopes as at the investigation sites lead to higher velocity run-off and a high probability of delivery for both coarse and fine particles to the receiving drainage lines. Any prudent management should avoid clearing and soil disturbance on such steep slopes.

86 Prof. Cornish noted that the surface soil at all sites contains a high percentage of silt and sand that will settle out within a few hundred metres of entering a stream, depending upon flow conditions. The higher clay content of subsurface soil that has been exposed at all sites would travel much further. Colloidal-sized particles would travel to the nearest water storage area where there is slow flow and long settling times would allow for settlement. Having visited the four sites, it was his opinion that a very significant increase in the risk of significant soil erosion had been created at each site. Soil erosion will lead to the delivery of sediment and associated pollutants, including phosphorus, to the drainage lines and streams, because of the close connection between cleared sites and the drainage system. In Prof. Cornish’s opinion, even with the remediation now in progress, the threat of erosion will continue until the full ground cover has been restored and soil stabilised. As noted above, this will take many months, particularly at the higher elevations of Site 3 and Site 4, where several years to full recovery might be expected. Given the high rainfall that occurs in the region it appears certain that further accelerated erosion would occur prior to the stabilisation of soil and the complete restoration of vegetative cover.

87 The estimated area of denuded land associated with each of the investigation site averaged almost two hectares. Therefore, there was a high expectation that an erosion event will occur at these sites within a year of clearing and which is capable of delivering up to 100 tonnes of sediment and up to about 60 kilograms of phosphorus (depending on the site) to nearby drainage lines and streams. These estimations were based, however, upon sediment and phosphorus exports for each of the site over one year without remediation, which is not the case.

88 The defendant relies upon the evidence of Dr R S B Greene, senior lecturer in soil science at the Australian National University. Dr Greene visited the sites on 16 May 2002 and 17 May 2002, at which stage the rehabilitation of the sites had been in place for approximately eight to nine months. Dr Greene noted the success of the rehabilitation program in protecting the easement from potential environmental damage as a result of the clearing. The aim of his visit was to assess, in the light of remediation works, the actual extent of any erosion, as well as the potential for future damage. At the time of visiting Site 3 and Site 4 there was heavy rainfall. However, there were no obvious effects of rainfall impact that caused erosion on the rehabilitated areas.

89 In Dr Greene’s opinion, the rehabilitation at Site 1 had been effective. Moreover, the effectiveness of the remediation program at all four sites had prevented degradation of soil properties at those sites. The prosecutor’s (that is, Prof. Cornish’s) predictions of high erosion rates and corresponding phosphorus export into waterways have failed to take into account the remediation effect of the rehabilitation measures put into place at each of the four sites. For significant amounts of phosphorus to be lost from a site and transported into adjacent waterways, overland flow of surface run-off containing eroded material is essential.

90 Dr Greene’s detailed observation of the soil surface condition showed very little difference between the rehabilitated areas and the adjacent forested areas in each of the categories of stability, infiltration and nutrients cycling. This was despite the fact that all four sites had received high amounts of rainfall over the nine months in which the rehabilitation had taken place. The rehabilitation works carried out had been effective. In particular, the straw mulching had protected the soil surface from raindrop impact and subsequent erosion; and the formation of log mounds of woody debris along the contours had been very efficient in preventing any run-off and erosion of surface soil into nearby waterways. Where the straw mulch was starting to disappear, it was being replaced by plant cover due to a very good build-up in plant recruitment of native grasses as well as good establishment of vegetative cover as a result of the seed mixture being applied to the soil surface. As a result, the soil surface of the rehabilitated areas appeared similar to the adjacent forested areas.

Rehabilitation/revegetation

91 All the expert evidence relating to rehabilitation and revegetation was adduced on behalf of the defendant. Mr R B Good, a soil conservationist employed by the National Parks and Wildlife Service of New South Wales, was appointed on 18 June 2001 as project manager for any works on easements within the Brindabella and Kosciuszko National Parks. In August 2001 an inter-agency working group comprising representatives of the defendant, the National Parks and Wildlife Service, the New South Wales Soil Conservation Service and New South Wales Forests was established with Mr Good as initial convenor. This working group met on a regular basis to discuss progress of the rehabilitation program (inter alia). In Mr Good’s opinion the limited extent and degree of active erosion at all the four sites was very much a result of the early intervention and rehabilitation works undertaken by the New South Wales Soil Service on behalf of the defendant. Monitoring inspections of the sites disclose the following. Vegetation cover for the low elevation sites (Site 1 and Site 2) had increased from less than 10 per cent in April 2001 to over 60 per cent in December 2001 and to over 90 per cent in May 2002. At the high elevation sites in the Brindabella ranges (Site 3 and Site 4) vegetative cover has increased from less than five per cent in April 2001 to 30 per cent in December 2001 and to greater than 50 per cent in April 2002. A full vegetative cover, that is more than 90 per cent, is expected to be achieved by October or November 2002. Site 4 was mulched for a second time in March and April 2002 to further enhance the stabilising vegetative cover and to protect the large numbers of native plant seedlings that have established on the site. While a good vegetative cover has been achieved over the greater part of the denuded areas, a stable native vegetation complex will take many years to achieve and in many sites will require continuing input for several years to ensure that this occurs. To date State Forests have propogated in excess of 80,000 plants and a further 200,000 will be raised during 2002/2003 for planting in 2003/2004. Mr Good accepts that there is potential for erosion and nutrient loss from the sites as stated by Prof. Cornish, but the actual probability of such occurrence, he considers, is low in the light of the historic low frequency of such occurrence of high intensity storms. The potential stated by Prof. Cornish for erosion and nutrient loss particularly in the first twelve months after the clearing is not challenged. However, this has not been observed to have occurred to any great degree, hence the impact on the environment due to the clearing has been predominantly one of landscape aesthetics and to potential impacts on threatened native fauna species. As a result of being directly involved in the rehabilitation of the defendant’s transmission lines since August 2001, Mr Good states that the regrowth of vegetation initiated by the rehabilitation works has been very good. Over the majority of the area denuded of vegetation and topsoil only very minor rill erosion has occurred to date.

92 The evidence of Mr Good was corroborated by the photographs taken by the prosecutor’s officers immediately after the clearing and compared with the recent photographs of the same areas.

93 The defendant also relies upon the evidence of Mr G Van Owen, who is Area Manager for Soil Services within the Department of Land and Water Conservation. Mr Van Owen notes that the defendant was served with a notice of clean up action by the prosecutor following the clearing. The notice required the defendant, amongst other things, to prepare a rehabilitation plan. The New South Wales Soil Service was contracted by the defendant to carry out the initial assessment and to prepare the reports required by the prosecutor. Concurrent with the preparation of the rehabilitation plan, bulldozers and a contractor plant supervised by Soil Services’ staff were brought in to rehabilitate the easements. Priority was given to the removal of soil and timber from the drainage lines and to the installation of appropriate controls in high risk areas. After the restacking of windrows and spreading of topsoil back over the denuded areas, large areas of the easements were covered with brush matting and/or seeded with a cover crop. Some 20 hectares of the steeper, more erodible slopes were seeded and mulched. The last of this work was completed in April 2002.

94 The rehabilitation plan was prepared by Soil Services with input from relevant stakeholders and was presented to the prosecutor on 29 June 2001. The clear outcomes of the rehabilitation plan as they relate to erosion control and site stabilisation have progressed satisfactorily and at an acceptable rate given the raft to rain and extreme water conditions encountered. Of ten key target outcomes listed in the rehabilitation plan, Mr Van Owen commented on the first three. (1) That a vegetative cover is achieved in the short term which hinders the disturbance of the soil surface in the long term. Mr Van Owen states that those slopes which are particularly susceptible to erosion have been seeded, fertilised and mulched. This work immediately stabilised the high-risk slopes. Long-term stability is being obtained by successful germination of seed, which is already occurring. Other areas not so susceptible to soil loss are regenerating naturally due to the respreading of seed bearing topsoil and through brush matting and selected seedlings. (2) That drainage lines and streams are stabilised so that degradation of channel beds and banks is minimised or mitigated. According to Mr Van Owen this was the priority task of work crews and earthmoving equipment throughout May, June and July 2001. Soil and vegetation debris were removed from most of the drainage lines. Only these deemed to be too steep and unsafe or where removal risked further damage were left intact. Sediments traps and barriers were erected wherever necessary to minimise downstream impacts. (3) That the adverse environmental impact of the recent clearing operation is remedied. According to Mr Van Owen, the defendant has implemented all remedial work recommended by Soil Services to remedy the environmental impact of excessive clearing. Particular attention was paid to minimising off-site impacts with regard to soil erosion and sediment movement. Mr Van Owen notes that the defendant has committed itself to continuing the remediation works to completion. It has also adopted management strategies designed to maintain its easements within the framework of relevant legislative boundaries.

95 The defendant called evidence from Mr K N Murray, general manager of the defendant’s transmission network assets, which include high voltage transmission lines and substations and other technical equipment. Mr Murray accepts that the clearing which has resulted in these prosecutions involves a breach of the defendant’s standards. Accordingly to Mr Murray, the management of transmission line easements must be performed in accordance with a range of standards approved by the defendant’s chief executive covering areas such as safety, environment, commercial, technical requirements and a range of asset management procedures approved within the defendant’s network business unit. Shortly after becoming aware that there had been clearing involving non-compliance with the defendant’s standards Mr Murray contacted all regional managers and directed that they ensure all easement work was performed strictly in accordance with those standards. Following the clearing that resulted in these prosecutions, Mr Murray appointed, on 29 May 2001, a project manager for the remediation work, namely Mr J Cox. The remediation work was then carried out in compliance with the prosecutor’s requirements. A rehabilitation plan was prepared and promptly implemented. The defendant has thus far expended about $2.4 million on works associated with remediation and rehabilitation of the easements. On 17 May 2001 the defendant’s chief executive established a committee to investigate easement maintenance work performed in the defendant’s southern region and which led to these prosecutions. That committee reported directly to the chief executive and consisted of individuals from a number of the defendant’s business units, all of which were independent of the southern region and were not involved in the clearing. To address the issues identified by the committee, the defendant has undertaken a number of steps, including introduction of a new standard and detailed environmental checklist required to be completed before any work on transmission lines, easements or access tracks can be approved and carried out; the updating of certain of the defendant’s standards relating to the inspection and maintenance of transmission lines, the maintenance of easements and the maintenance of access tracks; the issuing of new standards relating to the control of inspections and contractors in the vegetation management processes. At the executive level a new position of Executive Environmental Manager has been created, responsible for environmental policies and procedures, environmental training and environmental compliance. At the regional level a new position of Property and Environmental Manager has been established in each region, responsible for the management of transmission line easements with specific emphasis on vegetation control and on ensuring compliance with the defendant’s standards. A new asset management standard “Environmental Assessment of Maintenance Work on Transmission Lines, Easements and Access Tracks” has been developed which includes a checklist required to be completed by an authorised officer to ensure that the requirements of the standard are met prior to any work taking place. Finally Mr Murray said that he was authorised to express the organisation’s deep regret over the incident.

The Defendant’s Standards and Procedures

96 The defendant relied upon the evidence of Mr L G Smyth, General Manager, Business Resources. His duties currently include the management of the defendant’s health, safety, environment, human resources, property and information technology functions. Mr Smyth acknowledges that the subject clearing involved breaches of the defendant’s standards and procedures, including those covering easement maintenance and the environment. The defendant has a suite of nine grid standards supporting its environmental policies. These standards include TransGrid Environmental Plan; Environment Manual; TransGrid Environmental Standards; Environmental Documentation and Reporting; Environmental Training; Guide to Environmental Legislation; and others. These standards are supported by a range of asset management and engineering standards formulated to specify how work should be carried out to ensure compliance with the appropriate grid standards. These include Network Environmental Plan; Environmental Assessment of Maintenance Work on Transmission Lines, Environmental Audit Process; Environmental Impact Assessment Procedure – Transmission Lines; Responsibility for Transmission Line Environmental Decisions; and others. The defendant’s current environmental training program has been in place since December 1999 and consists of three levels of courses for its staff members. Staff members receive initial training within one month of joining the organisation or of taking up duties within a work area for which additional environmental training is required. Refresher training at the appropriate level is attended by all staff at least once every two years. To address the immediate issues raised by the breach of the defendant’s standards and procedures that occurred in the present case, refresher training was arranged for all easement maintenance staff across the State. The defendant has in place an environmental certification system. Staff and contractors involved in work that has the potential for environmental impacts will be formally assessed and certified to carry out work according to their competence.

Considerations of Penalty

97 Section 241 of the PEO Act sets out a number of matters which the Court is required to take into consideration in imposing a penalty for an offence against the Act.

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

98 I accept the prosecutor’s submission that the initial environmental harm as a result of the breach was significant and potentially very significant. This is illustrated by the evidence of Prof. Cornish, who states that the concentration of phosphorus in stormwater run-off would be in the order of 50 to 100 times greater than in runoff from undisturbed areas. This estimate, however, appears to be based upon run-off continuing until the source of readily erodible material has been exhausted. It is clear, however, that the potential for very significant harm was considerably ameliorated by the rehabilitation works which were quickly undertaken by the defendant.

99 I have noted the prosecutor’s reliance, for example, on the evidence of Dr J H Harris in relation to the impact on fish in the nearby waterways. Dr Harris carried out his survey in September 2001, that is, before the full impact of the remediation work was evident. Nevertheless Mr Lintermans, upon whom the defendant relies, does not disagree with the evidence of Dr Harris on the potential impacts and he acknowledges that Mountain Galaxias and two spiny crayfish species could be expected to be present and are likely to have suffered local impacts from sedimentation. Mr Lintermans acknowledges that there had clearly been some sedimentation in the pools immediately downstream of the easements at Site 1 and Site 2; and although any Mountain Galaxias present in the adjacent undisturbed sections of the stream would be expected to recolonise at the impacted habitat, this may take several years to occur. I note that, according to Mr Lintermans, it appears unlikely that significant damage to fish habitats has occurred at or immediately downstream at Site 3 and Site 4. When Mr Lintermans made his inspection on 25 June 2002 the rehabilitation works were well advanced. He was able to express the opinion that the rehabilitation and remediation measures undertaken appear to have successfully minimised the damage that had occurred and it appears unlikely that significant further damage will occur to the aquatic environments.

100 Similar comments can be made about the other environmental impacts. The potential extent of the harm identified by the prosecutor’s expert witnesses has not occurred because of the remediation and rehabilitation works that have been undertaken. Each of the prosecutor’s expert witnesses inspected the areas before the remediation and rehabilitation works had been fully implemented. While the estimates of the potential harm identified by the prosecutor’s expert witnesses are not disputed, such potential harm has not occurred or has been considerably ameliorated by the defendant’s remedial measures. Thus Prof. Norris, for example was able to say: “Almost a year after clearing extensive remediation has already been undertaken … the potential effects from run-off on the biota have been minimal, if any, outside the easements”.

101 Similarly, Dr Greene, who inspected the areas some eight or nine months after the rehabilitation works had been commenced, was able to answer Prof. Cornish by stating:

The EPA’s

predictions of high erosion rates and corresponding P

export from the site into waterways (as summarised in the report by Prof. Cornish) have failed to take into account the remediating effects of the rehabilitation measures put into place at each of the four sites. …

The site inspections and detailed observations of soil surface condition reinforce the effectiveness of the rehabilitation work carried out to date by TransGrid.

102 The effectiveness of the rehabilitation works was described in the evidence of Mr Good, to which I have referred. Mr Good was thus able to state:

While the potential stated by Prof. Cornish for erosion and nutrient loss, particularly in the first 12 months after the clearing is not challenged, it has not been observed to have occurred to any great degree to the present time and hence the impact on the environment has been predominantly one of landscape aesthetics and potential impacts on threatened native fauna species.

103 I find, therefore, that whilst the potential extent of the environmental harm caused by the commission of the offence was considerable, the rehabilitation measures undertaken by the defendant have considerably ameliorated both the actual and potential extent of the harm so that the waters in each of the four areas are well on the way to full recovery.

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

104 I have briefly referred to the steps taken by Mr Murray. They include: the appointment of the Soil Services Division of the Department of Land and Water Conservation to prepare a written assessment; the preparation of an erosion and sediment control plan, a priority works plan and a rehabilitation plan; the appointment of a project manager for the remediation works; the expenditure of $2.4 million on works associated with remediation and rehabilitation of the easements; the introduction of a series of new operating and inspection standards; and changes to the defendant’s organisational structure. The implementation of the various works and, in particular, the rehabilitation plan has considerably mitigated the harm caused by the commission of the offence.

105 I observe, however, that if the easements had been properly maintained in the first place and had not been allowed to deteriorate to such a condition that called for such urgent action to prevent possible fires and interruptions to the electricity supply, then none of expenditure in the sum of $2.4 million on rehabilitation and associated works would have been necessary. No explanation has been proffered as to why the easements had not been properly maintained.

(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.

106 The defendant accepts that it was reasonably foreseeable that the clearing of the easements in breach of its standards and procedures could cause environmental harm or increase the likelihood of the occurrence of such harm. The defendant nevertheless relies upon the fact that it required the management of transmission line easements to be carried out in accordance with a range of standards, assets management procedures, maintenance policies and procedures and a well-established management system. Some of these have been noted in summarising the evidence of Mr Smyth. The defendant also relies upon the fact that its management system included comprehensive education and training aimed at preventing or controlling any environmental harm which might occur as a consequence of its activities.

107 Some of the defendant’s asset management procedures were prepared after the events which gave rise to these prosecutions. Most of them and the various grid standards were in place well before the clearing had occurred in the present case. Similarly, the defendant’s environmental training program described by Mr Smyth has been in place since December 1999. No satisfactory explanation has been given by the defendant as to why the defendant’s various standards and procedures were not observed in the present case. Neither has any satisfactory explanation been given as to why personnel who, presumably, had undertaken appropriate environmental training programs, acted contrary to what they must have learned.

108 It is all very well to have in place written standards, policies and procedures; but they are of no use at all if they are then ignored by those persons who are directing operations on the ground. Similarly, it is all very well to have appropriate environmental training programs in place; but they are of no use at all if those who attend them do not put what they have learned into practice. I accept the defendant’s good intentions. But good intentions alone are not good enough. They have to be accompanied by appropriate action. Particularly where there are, as here, plainly foreseeable consequences. I acknowledge, however, that since the commission of these offences the defendant has put in place additional procedures, together with additional specialist staff, aimed at preventing a recurrence of the kind of events that occurred in this case.

109 There is some evidence that the defendant intended to go back and put in contour banks, broad cast seeds and put down straw after the clearing had been done. It is submitted on behalf of the defendant that there was no intentional disregard to its obligations, only a deferring of the work. In my opinion, however, the kind of clearing that was done should not have been done at all. It should and could have been done in an appropriate way, thereby avoiding the harm and potential harm to the environment, and also thereby avoiding the need for the rehabilitation and remediation works which then became necessary.

(

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

110 The defendant accepts that it had complete control over the causes that gave rise to the offence. Not only did it have complete control, it also gave specific instructions, by its relevant employee, Mr Blomley, to its contractors as to the manner in which the clearing was to be done. Mr Blomley then supervised the work to ensure that it was done in the manner that he directed.

111 This consideration is not relevant.

Other Considerations

112 The defendant is a State owned corporation. Section 8 of the State Owned Corporations Act 1989 provides:

(1) The principal objectives of every company SOC

are:

(a) to be a successful business and, to this end:

(i) to operate at least as efficiently as any comparable businesses, and

(ii) to maximise the net worth of the State’s investment in the SOC, and

(b) to exhibit a sense of social responsibility by having regard to the interests of the community in which it operates, and

(c) where its activities affect the environment, to conduct its operations in compliance with the principles of ecologically sustainable development contained in section 6(2) of the

Protection of the Environment Administration Act 1991

, and

(d) to exhibit a sense of responsibility towards regional development and decentralisation in the way in which it operates

(2) Each of the principal objectives of a company SOC is of equal importance.

113 It is to be noted that sub-s (2) provides that each of the principal objectives are of equal importance so that the obligations of the defendant under sub-s (1)(c) are no less important than any of the other objectives.

114 Section 6(2) of the Protection of the Environment Administration Act 1991 referred to in sub-s (1)(c) above provides that ecologically sustainable development requires the effective integration of economic and environmental considerations in decision-making processes. Section 6(2) goes on to provide:

Ecologically sustainable development can be achieved through the implementation of the following principles and programs:

(a) the precautionary principle – namely, that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. In the application of the precautionary principle, public and private decisions should be guided by:

(i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and

(ii) an assessment of the risk-weighted consequences of various options, …

115 As noted in par [5] above, the defendant is incorporated under the Energy Services Corporations Amendment (TransGrid Corporatisation) Act 1998 as an energy transmission operator. Section 6B in Sch 1 of that Act provides as follows:

6B Principal objectives of energy transmission operators

(1) The principal objectives of an energy transmission operator are as follows:

(a) to be a successful business and, to this end:

(i) to operate at least as efficiently as any comparable businesses,

(ii) to maximise the net worth of the State’s investment in it,

(iii) to exhibit a sense of social responsibility by having regard to the interests of the community in which it operates,

(b) to protect the environment by conducting its operations in compliance with the principles of ecologically sustainable development contained in section 6 (2) of the

Protection of the Environment Administration Act 1991

(c) to exhibit a sense of responsibility towards regional development and decentralisation in the way in which it operates,

(d) to operate efficient, safe and reliable facilities for the transmission of electricity and other forms of energy,

(e) to promote effective access to those transmission facilities.

(2) Each of the principal objectives of an energy transmission operator is of equal importance.

(3) Without limiting subsection (1) (b), in implementing the principal objectives set out in subsection (1), an energy transmission operator has the special objective of minimising the environmental impact on land of activities authorised by easements for transmission facilities created in favour of the energy transmission authority. In implementing this special objective, the transmission operator is bound by all relevant laws (such as those concerning native vegetation, soil conservation and easement management) applying at the time.

…

116 It can be seen that sub-ss (1)(a), 1(b), 1(c) and 1(d) effectively repeat and reinforce the provision of s 8(1) of the State Owned Corporations Act. Sub-section (1)(e) of s 6B imposes additional objectives on the defendant. Sub-section 6B(2), moreover, repeats and reinforces sub-s 8(2) of the State Owned Corporations Act. Importantly, s 6B(3) adds a special objective in relation to the environment impact on land within easements for transmission lines.

117 These various statutory provisions impose upon the defendant a special obligation to ensure that statutory provisions relating to environmental offences are to be observed. Sub-section 6B(3) of the Energy Corporations Amendment (TransGrid Corporatisation) Act especially makes this a special objective. I have commented in the past on the special obligations of publicly owned corporations and local government councils to uphold and observe statutory provisions designed to protect the environment (Environment Protection Authority v Sydney Water Corporation [2000] NSWLEC 156 at [43]-[53], Environment Protection Authority v Tenterfield Shire Council (2000) 112 LGERA 173; [2000] NSWLEC 229 at [45]-[56]).

118 I thus accept the prosecutor’s submission that the defendant’s status under the abovementioned statutes together with the particular statutory provisions described above, coupled with the conduct which has caused the commission of the offence in the present case, may be regarded as an aggravating factor.

119 I accept the submission on behalf of the defendant that the Rural Fires Act 1997 (s 63) imposes duties on public authorities to take practicable steps to prevent the occurrence of bushfires on, and to minimise the damage of the spread of a bushfire on and from, any land vested in or under its control and management. A State owned corporation is a public authority within the meaning of that Act. The evidence suggests to me, however, the defendant had for some years failed to properly maintain the easements, with the consequence that they had been allowed to become overgrown and a fire risk. It was only when the risk was demonstrated by the incidence of fires that the defendant took the action it did. As I have observed, no explanation has been proffered for the extreme measures which the defendant took. The clearing should and could have been carried out in an appropriate manner.

120 It is submitted on behalf of the defendant that the Court must take into account the close, if not the same, time frame during which the offences occurred: they must accordingly be seen as connected and the totality principle must be applied. (Reliance was placed on Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683, 83 LGERA 21 and Department of Land and Water Conservation v Orlando Farms Pty Ltd (1998) 99 LGERA 101 at 108.) It is submitted that in assessing the overall criminality involved in the commission of the four offences a significant downward adjustment will be necessary to aggregate the sentences to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. The defendant relies, in particular, on the following principle explained by Street CJ in R v Holder [1983] 3 NSWLR 245 at 260, adopted by Kirby P in Camilleri (at 703-704):

The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straight-forward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.

121 In accepting the principle of totality, it seems to me that it is first necessary to establish whether the four offences in the present case are sufficiently connected to enable the principle to be applied. In Camilleri the three offences occurred at the same premises but on different days. The close time frame of the offences, together with the fact that they are all related to the same premises, suggests that they were to be seen as connected and are to be punished accordingly. In Orlando Farms there were four offences for clearing four areas of land on the defendant’s property known as “Reno”, near Moree. The fact that the offences in both cases were committed within a close time frame and were all committed on the same property resulted in the application of the principle of totality in each of those cases.

122 In the present case each of the four offences occurred at different times and at different places. The offences were committed on 14 March 2001(summons No. 50023 of 2002), 17 April 2001 (summons No. 50022 of 2002), 26 April 2001 (summons No. 50024 of 2002) and 2 May 2001 (summons No. 50025 of 2002). Despite the fact that the last of the four offences was committed seven weeks after the first, it is at least arguable that in the overall context they were all committed within a close time frame so that they may be seen to be connected.

123 The real difficulty in applying the totality principle in the present case, however, is the fact that each offence occurred at a different place. Each offence resulted in the pollution of a different watercourse. I presume, for example, that the watercourse that was polluted in the Bimberi Natural Reserve is different to the watercourse that was polluted in the Brindabella National Park; and that both are different to the two watercourses that were polluted in the Bago State Forest. I am left with the impression that each of the four watercourses are remote from one another. I am thus unable to accept the defendant’s submission that the four offences in this case may be seen to be sufficiently connected to enable the totality principle to apply.

124 The next question is the extent to which, if any, I can take into account not only the inherent objective gravity of the offences but also the circumstances in which and the manner in which the offences were committed. That is, must the penalty be proportionate not just to the nature of the offences as charged but also to the circumstances and manner of them, including the extensive clearing? Or, must the penalty be formulated only by reference to the offences as charged?

125 In The Queen v De Simoni (1981) 147 CLR 383 Gibbs CJ (Mason and Murphy JJ agreeing) said (at 389):

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

126 Gibbs CJ also said (at 389):

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

127 In the same case, Wilson J said (at 395-396):

I turn now to consider certain aspects of the duty which rests on the sentencing judge. Some principles are well established. The primary rule is that the judge must sentence the prisoner for the offence of which he has been convicted. He must not, even though the actual sentence may be within the range allowed for that offence, sentence for some other more serious offence which he is satisfied has been committed:

(1925) 25 SR (NSW) 218

;

(1961) Tas SR 106

(1975) VR 168

;

(1976) Crim LR 456

;

(1909) 2 CrAppR 94

;

(1916) 2 KB 441

On the other hand, the judge is not only entitled but bound to take into consideration the circumstances surrounding the offence of which the prisoner has been convicted, so long as those circumstances are not inconsistent with the plea or verdict:

(1925) 25 SR (NSW) 218

(1975) VR 168

(1917

12 Cr App R 208

(1961) VR 236

. But he must not punish the prisoner for additional offences with which he has not been charged:

(1974) 8 SASR 102

(1972) 1 WLR 39

128 The principles explained in De Simoni are difficult to reconcile. I am able to apply them, however, to the present case in the following way. The defendant has been charged with four offences against s 120 of the PEO Act of causing waters to be polluted. The defendant has also been separately charged with a number of offences in relation to the clearing. That is, the circumstances surrounding the offences with which the defendant has been charged are themselves the subject of separate and distinct charges. To take into account those circumstances as an aggravating factor, which are the subject of separate and distinct charges, would result in the defendant being punished for another offence. It would conceivably result in the defendant being punished twice for the same conduct. For those reasons I confine my considerations on the question of penalty solely to the offences with which the defendant has been charged in these proceedings, namely causing waters to be polluted.

129 I take into account the fact that the defendant has entered early pleas of guilty and has exhibited the contrition which such pleas demonstrate. I have referred to the evidence of Mr Murray, the defendant’s General Manager, Networks, who said that he was authorised to express the organisation’s deep regret over these incidents. I also take into account the fact that the defendant co-operated fully with the prosecutor’s investigation and the defendant’s ready and early assumption of responsibility for the remediation works which, as I have noted, were carried out at a cost of about $2.4 million.

130 The defendant has had no previous convictions for an environmental offence. It does, however, have a conviction for a breach of the Occupational Health and Safety Act 1983 (s 16): in 19 December 2000 the defendant pleaded guilty to a charge that, being an employer it failed to ensure that persons not in its employment were not exposed to risks to their health and safety arising from the conduct of its undertaking while they were at its place of work. The defendant was fined an amount of $12,500 plus costs. The defendant does not thus have an unblemished criminal record. Having regard, however, to the extensive nature of the defendant’s activities, I do not consider the defendant to have a poor criminal record.

131 In R v Thomson (2000) 49 NSWLR 383, the Court of Criminal Appeal held (at 419) that the utilitarian value of a plea in the criminal justice system should generally be assessed in the range of 10 to 25 per cent discount on sentence, with a maximum discount of up to 35 per cent encompassing all relevant matters. I do not, however, regard the utilitarian value of the pleas in this case highly. The prosecutor would have had no difficulty in proving the charges in the present case: the defendant was in occupation of the relevant land, the defendant instructed its contractors not only to do what they did but also how to do it, and the defendant then supervised the work. As was said in R v Thomson (at 416), recognition of the inevitable may qualify the extent of genuine contrition: it does not qualify the utilitarian value of the plea.

132 It follows that, despite the early pleas, their utilitarian value must be at the lower end of the scale. Having regard to all of the considerations which I have outlined above, I am of the opinion that the total discount on sentence in each case, encompassing all relevant matters, should be 20 per cent. The maximum penalty prescribed by the legislature is $250,000. Again, having regard to all of the above considerations, the appropriate penalty is $25,000 in each case, discounted by 20 per cent to $20,000. I should re-emphasise, however, that these penalties relate only to the offences with which the defendant has been charged, namely causing waters to be polluted. The penalty in each case does not take into account the extensive clearing that has occurred since that is the subject of separate charges and to do so would otherwise conceivably result in the defendant being punished for another offence. The defendant has agreed to pay the prosecutor’s costs of $50,000.

Orders

133 The formal orders of the Court are:

No. 50022 of 2002

1. The defendant is convicted of the offence as charged.

2. The defendant must pay a penalty of $20,000.

3. The defendant must pay the prosecutor’s costs of $12,500.

4. The exhibits may be returned.

No. 50023 of 2002

1. The defendant is convicted of the offence as charged.

2. The defendant must pay a penalty of $20,000.

3. The defendant must pay the prosecutor’s costs of $12,500.

4. The exhibits may be returned.

No. 50024 of 2002

1. The defendant is convicted of the offence as charged.

2. The defendant must pay a penalty of $20,000.

3. The defendant must pay the prosecutor’s costs of $12,500.

4. The exhibits may be returned.

No. 50025 of 2002

1. The defendant is convicted of the offence as charged.

2. The defendant must pay a penalty of $20,000.

3. The defendant must pay the prosecutor’s costs of $12,500.

4. The exhibits may be returned.

**********

I hereby certify that the preceding 133 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

Associate

CITATION:	Environment Protection Authority v TransGrid [2003] NSWLEC 18
PARTIES:	PROSECUTOR: Environment Protection Authority DEFENDANT: TransGrid
FILE NUMBER(S):	50022 of 2002; 50023 of 2002; 50024 of 2002 and 50025 of 2002
CORAM:	Lloyd J
KEY ISSUES:	Environmental Offences :- water pollution - plea of guilty - penalty -aggravating factors - State owned corporation - special obligation of - non-compliance with standards and procedures - mitigating factors - rehabilitation and remediation work - totality principle inapplicable for four separate offences at four separate locations
LEGISLATION CITED:	Energy Services Corporations Act 1995 Energy Services Corporations Amendment (TransGrid Corporatisation) Act 1998 s 6B Protection of the Environment Operations Act 1997 s 120, s 123, s 241 Protection of the Environment Administration Act 1991 Rural Fires Act 1997 s 63 State Owned Corporations Act 1989 s 8
CASES CITED:	Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; Department of Land and Water Conservation v Orlando Farms Pty Ltd (1998) 99 LGERA 101; Environment Protection Authority v Boral Resources (NSW) Pty Ltd [2002] NSWLEC 232; Environment Protection Authority v Sydney Water Corporation [2000] NSWLEC 156; Environment Protection Authority v Tenterfield Shire Council (2000) 112 LGERA 173; [2000] NSWLEC 229; R v Holder [1983] 3 NSWLR 245; R v Thomson (2000) 49 NSWLR 383; The Queen v De Simoni (1981) 147 CLR 383
DATES OF HEARING:	18/11/2002, 19/11/2002 and 20/11/2002
DATE OF JUDGMENT:	02/13/2003
LEGAL REPRESENTATIVES:	PROSECUTOR: Mr S J Rushton SC SOLICITORS: Stephen Garrett DEFENDANT: Mr N Hemmings QC (solicitor) SOLICITORS: Allens Arthur Robinson

Common Name	Scientific Name	Jurisdiction in which listed as threatened
Two-Spined Blackfish	Gadopsis bispinosus	ACT
Trout Cod	Maccullochella macquariensis	ACT, NSW, National
Macquarie Perch	Macquaria australalica	ACT, NSW, National
Silver Perch	Bidyanus bidyanus	ACT, NSW
Southern Pygmy Perch	Nannoperca australis	NSW
Murray River Crayfish	Euastacus armatus	Act, National 61 According to Mr Lintermans, three fish species are of prime concern in this case. They are: the Two-Spined Blackfish, Macquarie Perch and Mountain Galaxias. The first two species are recognised as threatened, with sediment addition to streams considered as significantly threatening. The third species is not listed as threatened and is the most widespread of the native species in the smaller streams of the area and hence is most likely to have experienced impact from the clearing. All three species have adhesive, demersal (sinking) eggs. The Two-Spined Blackfish and Mountain Galaxias attach their eggs directly to the substrate. Macquarie Perch broadcast their eggs near the foot of pools, so the eggs are lodged in rocky substrates of downstream riffles. Fish with demersal eggs are more susceptible to sediment impacts because the eggs can become coated with sediment, which can cause them to die. Similarly, direct attachment of eggs to substrate is impaired due to the sediment, resulting in the loss of spawning sites. Two spiny crayfish species are also of concern in this case, namely Euastacus crassus and Euastacus riekii. Both of these crayfish species are commonly recorded in small streams or wet areas at moderate to high elevations within the upper Murrumbidgee catchment. The impact of sediment on these crayfish species is not clearly understood; however, both species are usually found in places with relatively intact riparian zones and little or no evidence of sedimentation.