Land and Environment Court New South Wales Medium Neutral Citation: Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 4 Hearing dates: 17 December 2020 Date of orders: 28 January 2021 Decision date: 28 January 2021 Jurisdiction: Class 5 Before: Pepper J Decision: See orders at [249]. Catchwords: ENVIRONMENTAL OFFENCES: sewerage overflow – breach of environment protection licence condition – failure to comply with clean-up notice – pleas of guilty – determination of appropriate sentence – whether failure to comply with clean-up notice a continuing offence – extent of harm caused by the commission of the offences – whether the offences committed negligently or recklessly – whether the De Simoni principle applies – subjective circumstances of the offender – prior convictions for environmental offences – monetary penalty imposed – part of monetary penalty imposed to be paid to council for environmental project – moiety ordered – publication order made. Legislation Cited: Clean Waters Act 1970, s 16(1) Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A(2), 21A(3) Criminal Procedure Act 1986, ss 257B, 257G Fines Act 1996, s 122 Pollution Control Act 1970, s17D(9) Protection of the Environment Operations Act 1997, ss 3, 64, 91, 116, 120, 149, 241, 242(1), 248, 250(1)(a), 250(1)(e) Cases Cited: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Cessnock City Council v Quintaz Pty Limited; Cessnock City Council v McCudden [2010] NSWLEC 3; (2010) 172 LGERA 52 Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114; (2019) 242 LGERA 241 Chief Executive, Office of Environment and Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 Chief Executive Office of Environment and Heritage v Rummery [2012] NSWLEC 271; (2012) 192 LGERA 314 Chief Executive of the Office of Environment and Heritage, Department of Premier and Cabinet v Turnbull [2014] NSWLEC 150 Director-General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110 Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 Environment Protection Authority v Albiston [2020] NSWLEC 80 Environment Protection Authority v Alkem Drums [2000] NSWCCA 416; (2000) 113 LGERA 130 In Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278 Environment Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Causmag Ore Company Pty Ltd [2015] NSWLEC 58 Environment Protection Authority v Crown in Right of New South Wales [2019] NSWLEC 178 Environment Protection Authority v D F Herbert Pty Limited [2006] NSWLEC 575 Environment Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90 Environment Protection Authority v Ecolab Pty Limited [2002] NSWLEC 206; (2002) 123 LGERA 269 Environment Protection Authority v Hawkesbury City Council [2017] NSWLEC 39 Environment Protection Authority v Hunter Water Corporation [2016] NSWLEC 76 Environment Protection Authority v Imad Osman-Kerim [2017] NSWLEC 63 Environment Protection Authority v Incitec Limited [2003] NSWLEC 381 Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65 Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103; (2014) 206 LGERA 239 Environment Protection Authority v Queanbeyan City Council (No 3) [2012] NSWLEC 220; (2012) 192 LGERA 415 Environment Protection Authority v Ravensworth Operations Pty Limited [2012] NSWLEC 222 Environment Protection Authority v Snowy Hydro Ltd [2008] NSWLEC 264; (2008) 162 LGERA 273 Environment Protection Authority v Sydney Water Corporation [1998] NSWLEC 144 Environment Protection Authority v Sydney Water Corporation [2000] NSWLEC 80 Environment Protection Authority v Sydney Water Corporation [2000] NSWLEC 156 Environment Protection Authority v Sydney Water Corporation [2015] NSWLEC 80 Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 Environment Protection Authority v Sydney Water Corporation [2020] NSWLEC 153 Environment Protection Authority v Tea Garden Farms Pty Ltd [2012] NSWLEC 89 Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Environment Protection Authority v Whitehaven Coal Mining Limited [2019] NSWLEC 27; (2019) 239 LGERA 31 Environment Protection Authority v Wollondilly Abattoirs Pty Ltd [2019] NSWLEC 72 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Gordon Plath of the Department of Environment and Climate Change v Fish [2010] NSWLEC 144; (2010) 179 LGERA 386 Gore v The Queen [2010] NSWCCA 330; 208 A Crim R 353 Harris v Harrison [2014] NSWCCA 84; (2014) 86 NSWLR 422 Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 Liverpool City Council v Leppington Pastoral [2010] NSWLEC 170 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 Plath v Vaccount Pty Ltd t/as Tableland Timbers [2011] NSWLEC 202 R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 R v Dib [2003] NSWCCA 117 R v Dodd (1991) 57 A Crim R 349 R v DP [2019] NSWCCA 55 R v Nichols (1991) 57 A Crim R 391 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Oliver (1980) 7 A Crim R 174 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Visconti [1982] 2 NSWLR 104 R v Wickham [2004] NSWCCA 193 Samuel v R [2017] NSWCCA 239 Sloggett v Adams (1953) 70 WN (NSW) 206 Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 Water NSW v Barlow [2019] NSWLEC 30; (2019) 244 LGERA 1 Category: Sentence Parties: Environment Protection Authority (Prosecutor) Sydney Water Corporation (Defendant) Representation: Counsel: G Wright (Prosecutor) S Hall (Defendant) Solicitors: Environment Protection Authority (Prosecutor) Maddocks Lawyers (Defendant) File Number(s): 2019/286475 and 2019/286476 Judgment Sydney Water Corporation Pleads Guilty to an Offence of Failing to Comply with its Licence and an Offence of Failing to Comply with a Clean-Up Notice 1. On 7 February 2020 the defendant, Sydney Water Corporation ("Sydney Water"), pleaded guilty to two contraventions of the Protection of the Environment Operations Act 1997 ("POEOA") that occurred following an overflow of sewage from a maintenance hole in a Sydney Water sewer main into an unnamed creek ("the creek") and surrounding bushland at Bangor due to a choke, that is, a pipe blockage caused by tree root overgrowth ("the overflow"). 2. The first was an offence against s 64(1) of the POEOA of failing to comply with a condition of its environment protection licence ("EPL") ("the licence offence"). The second was an offence against s 91(5) of that Act for failing to comply with a clean-up notice issued by the prosecutor, the Environment Protection Authority ("EPA"), without reasonable excuse ("the clean-up notice offence"). 3. The summons for the licence offence is in the following terms: The Prosecutor claims: 1. That the defendant, Sydney Water Corporation, having its head office at 1 Smith Street, Parramatta, in the State of New South Wales, appear before a Judge of the Court to answer the charge that, from about 14 September 2018 to about 19 October 2018 inclusive, at or near approximately 500m north of 15 Illaroo Street and approximately 150 metres west of 17 Yates Road, Bangor, in the State of New South Wales, it committed an offence against section 64(1) of the Protection of the Environment Operation Act 1997 in that it was the holder of a licence, a condition of which was contravened by a person. Particulars a. Licence Environment Protection Licence number 1728. b. Licence condition Condition O3.1, which states: "O3.1 In the event of an overflow from the reticulation system… that harms or is likely to harm the environment or present a significant public health risk, the licensee must take all reasonable and feasible actions as soon as practicable to minimise the impact of the overflow… on the environment and public health…" c. Manner of breach The defendant, in response to a sewage overflow (the Overflow) from the Cronulla Sewage Treatment Plant reticulation system, at or near a maintenance hole on a sewer main, approximately 500m north of 15 Illaroo Street and approximately 150 metres west of 17 Yates Road, Bangor in the State of New South Wales (the Overflow Point), that harmed or was likely to harm the environment or present a significant public health risk, failed to take all reasonable and feasible actions as soon as practicable to minimise the impact of the Overflow on the environment and public health, in that: i. the defendant's Field Sampling and Testing team sent to investigate the Overflow and recommend clean up actions was not informed of the exact location of the maintenance hole from which the Overflow occurred (maintenance hole 1260717) being the Overflow Point with the result that the Field Sampling and Testing team went to the maintenance hole immediately downstream of the Overflow Point (maintenance hole 1257989). This had the consequence that clean up actions were not commenced on the bushland and unnamed creek between maintenance hole 1260717 and maintenance hole 1257989 until 20 September 2018 ii. the clean up actions were not completed by the defendant until 19 October 2018 in circumstances where it was reasonable and feasible to complete them before that date. In particular: a. clean up actions were not undertaken on 19 September 2018 b. clean up actions were not undertaken between 6 October and 14 October inclusive c. additional personnel should have been deployed so that the clean-up was completed by an earlier date d. supervisors should have been allocated to ensure that the clean up actions were completed in the right order and to the correct standard. In particular to ensure that sewage materials collected in bags were removed and disposed of and that material placed under temporary cover was promptly removed e. collected material should have been removed from the impacted areas sooner iii. flushing (washing with mains water) of the unnamed creek occurred in circumstances where: a. the sewage material had not been removed from the unnamed creek b. the precautions taken to ensure that the flushing was fully contained by the water gates were not adequate to ensure that outcome c. the water gates installed may not have fully contained the sewage material flushed out of and in the unnamed creek with the result that flushed sewage material was washed further downstream iv. as a consequence of the matters pleaded above, the impact of the Overflow on the environment and public health was not minimised. 1. Section 64(1) of the POEOA relevantly provides that: 64 Failure to comply with condition (1) Offence If any condition of a licence is contravened by any person, each holder of the licence is guilty of an offence. Maximum penalty— (a) in the case of a corporation—$1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues… 1. At all relevant times, conditions L1.1 and 1.3 of Sydney Water's EPL state that: L1 Pollution of waters L1.1 Except as may be expressly provided in any other condition of this licence, the licensee must comply with section 120 of the Protection of the Environment Operations Act 1997. … L1.3 Notwithstanding the provisions of the condition above, this licence does not permit the pollution of waters at any time during dry weather from: a) uncontrolled overflows, or b) directed overflows other than from sewage pumping stations, if a cause of the pollution is failure to: i) operate any part of the reticulation system in a proper and efficient manner; or ii) maintain any part of the reticulation system in a proper and efficient condition. 1. Condition L7 deals with other limit conditions. Relevantly, L7.2 and L7.4 state: L7.2 Wet weather overflow limits Not applicable. … L7.4 Dry weather overflow limits The total number of dry weather overflows reaching waterways from the sewage treatment system subject to this licence must not exceed 18 in any reporting period. 1. Importantly, condition O3.1 of the EPL provides that: O3 Emergency response O3.1 In the event of an overflow from the reticulation system or a bypass from a sewage treatment plant that harms or is likely to harm the environment or present a significant public health risk, the licensee must take all reasonable and feasible actions as soon as practicable to minimise the impact of the overflow or bypass on the environment and public health. For the avoidance of doubt, the requirements of this condition are in addition to any measures required to be implemented in accordance with the Pollution Incident Response Management Plan required to be prepared and implemented under Part 5.7A of the Protection of the Environment Operations Act 1997. 1. The summons for the clean-up notice offence states: The Prosecutor claims: 1. An order that the defendant, Sydney Water Corporation, having its head office at 1 Smith Street, Parramatta, in the State of New South Wales, appear before a Judge of the Court to answer the charge that, from about 21 September 2018 to about 19 October 2018 inclusive, at or near approximately 500m north of 15 Illaroo Street and approximately 150 metres west of 17 Yates Road, Bangor, in the State of New South Wales, it committed an offence against section 91(5) of the Protection of the Environment Operations Act 1997 in that it was given a clean-up notice and, without reasonable excuse, it did not comply with the clean-up notice. Particulars a. Clean-Up Notice: Clean-Up Notice No. 1570263 dated 21 September 2018. b. Clean-Up Notice conditions not complied with: 1. "Complete all reasonable and feasible clean-up of all affected land and waters (as indicated by the water quality sampling and analysis at condition 3) as soon as practicable, or before 28 September 2018, to minimise the impact of the overflow on the environment and public health, including downstream to the confluence with Woronora River if necessary." 2. "The clean-up required by condition 1 must include the removal of all sewage related material and sewage contaminated water related to the incident as far as is reasonably practicable." c. Manner of breach: The defendant in response to a sewage overflow (the Overflow) from the Cronulla Sewage Treatment Plan reticulation system, at or near a maintenance hole approximately 500m north of 15 Illaroo St Bangor and approximately 150 metres west of 17 Yates Road, Bangor in the State of New South Wales (the Overflow Point): a. failed to remove, by manual clean-up or otherwise, all sewage related material and sewage contaminated water related to the Overflow until 19 October 2018 As a consequence of which, the impact of the Overflow on the environment and public health was not minimised. 1. Section 91(5) of the POEOA relevantly provides that: 91 Clean-up by occupiers or polluters (5) Offence A person who, without reasonable excuse, does not comply with a clean-up notice given to the person is guilty of an offence. Maximum penalty— (a) in the case of a corporation—$1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues… 1. The expressions "pollution incident" and "clean-up action" are defined in the Dictionary to the POEOA as follows: clean-up action, in relation to a pollution incident, includes— (a) action to prevent, minimise, remove, disperse, destroy or mitigate any pollution resulting or likely to result from the incident, and (b) ascertaining the nature and extent of the pollution incident and of the actual or likely resulting pollution, and (c) preparing and carrying out a remedial plan of action. … pollution incident means an incident or set of circumstances during or as a consequence of which there is or is likely to be a leak, spill or other escape or deposit of a substance, as a result of which pollution has occurred, is occurring or is likely to occur. It includes an incident or set of circumstances in which a substance has been placed or disposed of on premises, but it does not include an incident or set of circumstances involving only the emission of any noise. Sydney Water's EPL 1. The EPL authorises the carrying out of "sewage treatment" activities at certain premises. "Sewage treatment" is defined in cl 36 of Sch 1 of the POEOA as: 36 Sewage treatment (1) This clause applies to sewage treatment, meaning the operation of sewage treatment systems (including the treatment works, pumping stations, sewage overflow structures and the reticulation system) that involve the discharge or likely discharge of wastes or by-products to land or waters. (2) The activity to which this clause applies is declared to be a scheduled activity if it has a processing capacity that exceeds— (a) 2,500 persons equivalent, as determined in accordance with guidelines established by an EPA Gazettal notice, or (b) 750 kilolitres per day, whichever is the greater. 1. The sites to which the EPL applies are specified by the EPL to be ("the premises"): 1. the Cronulla Sewage Treatment System, including the Sewage Treatment Plant at Captain Cook Drive, Kurnell, NSW; and 2. the reticulation system owned and operated by the licensee (that is, Sydney Water) that is associated with the sewage treatment plant. 1. The reticulation system at the premises includes: 1. sewer pipes and mains at the site near 15 Illaroo Street, Bangor ("the mains"), including a 300mm diameter clay pipe ("the pipe"); 2. a maintenance hole which is located on the upstream end of the pipe approximately 300 to 500m north of 15 Illaroo Street, Bangor, and 150m west of 17 Yates Road, Bangor ("the upstream maintenance hole"). This is the location at which the overflow occurred; and 3. a maintenance hole which is located on the downstream end of the pipe ("the downstream maintenance hole"). 1. At all relevant times, Sydney Water was the occupier of the premises and was responsible for its management, operation, inspection, maintenance, and repair. 2. The creek, the mains, the upstream and downstream maintenance holes, and surrounding bushland in Bangor are located on Crown Land (Lot 477 of Deposited Plan 752034) and are used as a public reserve. The creek runs north of Illaroo Street and continues for approximately 690m downstream until it reaches the Woronora River. The Overflow Incident Giving Rise to the Commission of the Offences 14 September 2018 1. At 6:16am on 14 September 2018, Sydney Water received an odour complaint. 2. If a Sydney Water officer observes a maintenance hole overflowing they declare it an incident by telephoning a scheduler. Upon an incident being declared, a Field Services Team is deployed to assess the impact of the incident, determine response options, and ensure that the required authorities are notified. 3. At 7:00am, Nicola Kociski and Luke Allison, two production employees working in Sydney Water's civil delivery team, attended the overflow at the upstream maintenance hole. Kociski notified the Sydney Water scheduler to declare an incident. 4. At 11:20am Kociski and Allison cleared the pipe using a jetter truck. The overflow ceased. 5. The duration of the overflow was 5 hours and 4 minutes (from the time Sydney Water was notified to the time that the overflow ceased). 6. The overflow occurred during dry weather. Sydney Water estimated that approximately 57,000L discharged from the upstream maintenance hole. 7. Once the overflow ceased, Kociski and Allison installed a watergate in the creek approximately 400m downstream from the upstream maintenance hole ("watergate 1") and placed signage adjacent to the fire trail in the vicinity of 15 Illaroo Street, Bangor. 8. A watergate is a protective barrier or a dam made of polyester fabric designed to hold back a certain amount of water. For example, when a watergate is placed across a creek, incoming water accumulates inside the barrier and exerts pressure on the bottom of the fabric keeping the barrier in place. It is essential that the incoming water be removed from the watergate using a water pump. If not, the accumulated water will eventually flow over and around the watergate and into the protected areas. If water is not kept from accumulating over the watergate, the watergate will not be effective. 9. Sydney Water's Field Sampling and Testing Team ("FST Team") arrived late afternoon to conduct an initial environmental assessment. However, because the light was fading and the FST Team decided that the terrain was too difficult to assess, it left without completing the assessment. 10. That evening Ian Thorney of Sydney Water notified the incident to the EPA Environment Line. 15 September 2018 1. At 8:00am on 15 September 2018, the FST Team arrived at a cul-de-sac near 15 Illaroo Street, Bangor, to conduct an environmental assessment of the overflow and to undertake water quality monitoring in the creek. 2. The FST Team encountered other Sydney Water staff who instructed them to follow the fire trail, an arrow on a tree, and a marking on a rock, to find the overflow point. The FST Team arrived at a site they believed to be the point of the overflow. Sharon Armstrong of the FST Team called the Sydney Water scheduler to confirm whether this was the correct location. She received a map by email on her phone which contained a highlighted wastewater line that included two maintenance holes on either side of that line (the first and second maintenance holes). The Sydney Water scheduler did not, however, provide GPS coordinates for the point of the overflow itself. 3. The FST Team assessed the area and took water samples at different sections of the creek. 4. At 9:04am that same day Armstrong made the following recommendation regarding the remediation of the overflow ("the first FST recommendation"): Flush into underground stormwater at the end of Illaroo St for 8hrs while pumping at watergate adjacent to unknown water asset. 1. Flushing is carried out by directing mains water to flow over an affected area. Pumping is carried out by pumping out water and other liquid using a pumping unit. Containment such as a watergate is needed to allow the water to pool and be pumped. 2. Sydney Water's FST procedure provides that the environmental response staff member attending an incident is responsible for providing advice on clean-up procedures. The procedure states that the aim is to return the receiving waterway to its pre-existing condition in a timely manner. To do this the preferred course of action is to contain (for example, using sandbags or other barriers such as a watergate) and pump out (remove) any sewage that may be present in the waterway. Sydney Water's procedure specifically states that flushing only is not a clean-up option. 3. At 11:26am Sydney Water officers (Mitchell Rees, a field supervisor, and Kerry Sargeant) commenced flushing the creek with mains water at a location above the pipe and pumped it out to a sewer access point located at watergate 1, being the containment installed at the creek about 400m downstream of the upstream maintenance hole. 4. This activity continued until 3:55pm. No manual clean-up occurred. 16 to 18 September 2018 1. Between 7:56am and 3:30pm on 17 September 2018, Rees and Ross Mansfield (a member of Sydney Water's clean-up crew) continued flushing the creek with mains water at a location above the pipeline and pumped it out to a sewer access point from behind watergate 1. Again, this activity did not involve any manual clean-up. 2. No clean-up action was taken on 17 or 18 September 2018. 19 September 2018 – the First EPA Inspection 1. On 19 September 2018 at 9:11am, Sydney Water provided the EPA with a written report pursuant to s 149 of the POEOA and condition R2.2 of the EPL ("the R2 Report"). 2. Condition R2.2 of the EPL relevantly provides that: The licensee must provide written details of the notification to the EPA within 7 days of the date on which the incident occurred. 1. The R2 Report incorrectly reported that: A manual clean-up of the affected area was completed at 15:30 16/09/2018 as per FST recommendations. 1. Between 2:20pm and 4:00pm that day, EPA officers Benn Treharne and Adam Wethered arrived at a cul-de-sac near 15 Illaroo Street, Bangor, to carry out an inspection of the site. They observed a warning sign located on the fire trail gate adjacent to 15 Illaroo Street. The sign included words to the effect that the area may be affected by a sewage overflow and that the area should be avoided. Using the description of the incident and the location of the overflow from the R2 Report as a guide, they walked along the fire trail in a northerly direction for 100 to 200m and located a second Sydney Water sign identical to the first one observed by them. The officers then headed off the fire trail into the bushland down a slight hillslope in a westerly direction. 2. Approximately 50m off the fire trail, Treharne and Wethered identified the upstream maintenance hole located on the bank of the creek. They observed a thick layer (5 to 15cm) of grey sewage solids material, including rags, faeces, sanitary items, and toilet paper. The extent of the affected land at the upstream maintenance hole was around four to five metres wide and stretched for around six metres in length from the creekbank, upslope from the upstream maintenance hole. A moderate to strong intermittent ambient odour was present. 3. Access to the upstream maintenance hole had been cleared. However, the affected area around it was otherwise undisturbed from any cleaning activities. 4. Treharne and Wethered took various photographs during their inspection that depicted: 1. the upstream maintenance hole affected by the overflow with branches laying on top of the sewage material; and 2. sewage material around the upstream maintenance hole and inflow into the creek that had occurred from either side of a large tree. 1. Immediately where the sewage from the upstream maintenance hole had entered the creek (downslope of the large tree shown in one of the photographs), the EPA officers observed grey pulp on the dry channel bed and pulp on the base of the banks. This location was where the sewage had flowed into the creekbank and the creek also appeared undisturbed from any cleaning activities. The photographs showed: 1. the flow path of sewage material from the upstream maintenance hole down the channel bank and into the creek; and 2. grey and turbid water in the creek approximately one metre downstream of the point of inflow from the upstream maintenance hole. 1. Treharne and Wethered inspected the creek up to 40m upstream of the point of sewage inflow from the upstream maintenance hole and took photographs that showed the water and substrate were clear and free from sewage in the creek up to 40m upstream from the point of inflow from the upstream maintenance hole. 2. They walked downstream of the point of inflow from the upstream maintenance hole and observed that natural partial containment had formed within the channel which trapped sections of the solid sewage pulp behind it. Further downstream (40 to 80m from the upstream maintenance hole) smaller pools of sewage water were present. Further photographs taken by the officers indicated that: 1. the creek was filled with grey odorous sewage sludge approximately 15m downstream from the upstream maintenance hole. The EPA officers took a water sample from this point of the creek; and 2. pockets of sewage pulp were caught up within the creek around 80m downstream. 1. Treharne and Wethered returned to the fire trail and walked in a northerly direction. They located watergate 1 in place around 415m downstream from the upstream maintenance hole. A generator and pump was onsite at watergate 1. The EPA officers observed that minimal flow was passing downstream through the creek and a natural pool feature near where watergate 1 was installed. Watergate 1 appeared to be effective. 2. Between 420 to 630m downstream from the upstream maintenance hole (and approximately 230m downstream from watergate 1), the EPA officers observed numerous odorous dark grey sewage affected pools. Photographs taken by them revealed that: 1. no pumping of contaminated water was occurring at watergate 1 in place approximately 415m downstream from the upstream maintenance hole; 2. the generator and pump were set up adjacent to watergate 1, but the pump was not operating; 3. grey sewage had stained instream rocks and a sewage affected pool existed approximately 20m downstream from watergate 1; and 4. there was an area within the lower reaches of the creek prior to its confluence with the Woronora River, which appeared to be on the extent of the tidal limit, around 630m downstream from the overflow and 215m downstream from watergate 1, and where the officers took a water sample. 1. At no point during their inspection did Treharne and Wethered see any Sydney Water staff or vehicles. 2. It was apparent from the inspection that the first FST recommendation was not based on the correct maintenance hole. That is, it was based on the downstream maintenance hole and not the upstream maintenance hole, and therefore, not on the maintenance hole where the overflow occurred. As a result, the first FST recommendation did not include the manual clean-up of the correct maintenance hole. 20 September 2018 1. At 8.51am on 20 September 2018, EPA officer Sarah Thomson telephoned Ryan Carr of Sydney Water to inform him of the observations made by the EPA officers the day before. 2. Thomson gave Sydney Water the following verbal instructions, namely, to ("the EPA's verbal instructions"): 1. undertake a manual clean-up of solids around the point of overflow; and 2. consider installing two more watergates: one upstream and one downstream of watergate 1. 1. At 9.35am Jon Masters, Acting Civil Delivery Manager at Sydney Water, attended the site and walked upstream along the creek from watergate 1. He observed a lot of pulp around the first maintenance hole and that the pulp did not appear to have been attended to. Masters mobilised a number of clean-up crews to attend the site later that day. 2. At 10:04am Thomson emailed Carr at Sydney Water confirming the EPA's verbal instructions earlier that morning. The email relevantly stated the following ("the EPA's written instructions"): EPA observations: - Signage observed along fire trail, watergate installed, pump on site but with service tag on it and not operational, no staff present - Manhole from where incident occurred was located and no manual clean up seemed to have occurred; an area 5x6m was covered in sewage solids, rags etc - Sewage was seen in the unnamed creek; the first approx. 40m was full of solids estimated to be 20-30cm deep - Overall approximately 700m of creek is impacted; a watergate was observed at approx. 400m from the overflow point but sewage impacted creek was observed past this watergate - Numerous pools of black sewage impacted water were seen beyond the watergate Clean up required on the following: - Manual clean up of solids around the manhole - Manual clean up of the solids within the unnamed creek – note this needs to occur prior to any flushing to minimise further impacts – note there are significant manholes structures to enable this to occur easily - Flushing required in a staged approach to return water to sewer as soon as is able (noting the many manholes available) - FST should consider installing two more watergates – one above the existing watergate and another below the existing watergate and then after sewage solid removal consider staged flushing approach As mentioned on the phone this morning I am greatly concerned about the information provided to the EPA regarding 15 Illaroo St. The R2 Report, received 19 September, stated A manual clean-up of the affected area was completed at 15:30 16/09/2018 as per FST recommendations. This led the EPA to be [sic] believe that clean up had been finished. Our observations suggest that no clean up has occurred. 1. Two additional watergates were subsequently installed by Sydney Water. One 70m downstream of watergate 1 and 470m downstream of the upstream maintenance hole ("watergate 2"); the other was installed 70 to 90m downstream from the upstream maintenance hole and 310 to 330m upstream of watergate 1 ("watergate 3"). Flushing and pumping commenced at watergate 3. 2. At 2:30pm that day the FST Team attended the site to conduct sampling and to provide recommendations. The FST Team recommended that watergate 3 be removed, which it was that afternoon. 3. The FST Team located and inspected the upstream maintenance hole and made the following recommendations ("the second FST recommendation"): Manual clean up around affected manhole. Remove watergate from upstream of manhole. A/C painted yellow Continue flushing into underground stormwater at lllaroo St for 8 hours while pumping out at first watergate. Move second watergate downstream 10 metres to be behind impacted ponded section of creek. Remove first watergate and continue flush for 8 hours while pumping out at second watergate." 1. Sydney Water's procedure for environmental response to sewage overflows provides that: 1. sewage solids on soil must be manually removed (bagged) from an affected area. A topsoil dressing is sometimes performed by Sydney Water clean-up crew when sewage solids cannot be totally removed by manual means to create a barrier between the public and the contaminated area. But the action of covering sewage with soil blocks UV from the sunlight that kills bacteria and provides a dark moist habitat that helps the bacteria survive longer in the environment. Where possible it is best to prohibit access for a couple of days and let sunlight kill off the sewage bacteria; 2. a topsoil dressing for incidents located in national parks or sensitive areas is never recommended due to the likelihood of noxious weed introduction; and 3. sewage solids in a creek may be removed manually, sucked up by a tanker or, if located in an inaccessible area, may be flushed downstream to a dammed section where they can be pumped out. 1. No clean-up action was taken by Sydney Water on 20 September 2018. 21 September 2018 1. At 7:00am on 21 September 2018, the Sydney Water clean-up crew were provided with the second FST recommendation. Initially the clean-up crew went to another nearby incident by mistake. 2. At 9.05am Treharne and Wethered attended the Bangor site and observed that the EPA's written instructions had not been wholly complied with. In particular: 1. no clean-up of the affected bushland or the overflow path had occurred; 2. unattended flushing from a standpipe at Illaroo Street into the affected area was occurring, and there was no pumping out taking place at watergate 1 or watergate 2; 3. watergate 3 had been removed; 4. sewage material was moving downstream to and past watergate 1 and watergate 2 at moderate to high flow; 5. sewage material was flowing into the intertidal mangrove area at the confluence with the Woronora River approximately 700 to 800m downstream of the upstream maintenance hole; and 6. large solid masses of sewage pulp were moving downstream from the upstream maintenance hole and were breaking up in the flushing water. 1. Treharne and Wethered took photographs during their inspection which were before the Court. 2. Treharne also took videos of the creek at watergate 1 and watergate 2 during the EPA inspection. The first video shows unattended flushing at a moderate to high flow in the creek that was bypassing over and under watergate 1 and that was continuing uncontained downstream in the creek. The water appeared turbid and was a grey colour. The second video showed unattended flushing bypassing over and under watergate 2 and that continued uncontained downstream. Again, the water was turbid and grey in colour. 3. At 10:30am Sydney Water staff arrived at the Bangor site. At the upstream maintenance hole, Treharne spoke with Sydney Water Acting Site Supervisor, Travis Martin. Martin said that the clean-up was a "large job" and that he was going to recommend that Sydney Water arrange contractors to assist. 4. At the direction of Treharne, Sydney Water staff turned off the standpipe, ceased unattended flushing and commenced pumping at watergate 1. Another containment device was installed slightly downstream of the upstream maintenance hole and a manual clean-up of sewage solids in the first 20 to 30m of the creek commenced. 5. It was not in dispute that Sydney Water failed to carry out the following reasonable and feasible actions as soon as practicable, namely: 1. the clean-up crew did not carry out manual clean-up of sewage around the upstream maintenance hole as required by the second FST recommendation and did not contain solids and contaminated water at watergate 1 and watergate 2 as required by Sydney Water procedure; 2. it carried out flushing without pumping which led to sewage moving downstream; and 3. it failed to communicate clear instructions to its clean-up staff and the instructions that were provided were verbal and minimal. 1. Later that afternoon, Thomson and Yvonne Sinanovic, a Sydney Water officer, exchanged email correspondence. The EPA advised Sydney Water of its intention to issue a clean-up notice in relation to the overflow and provided a draft of the notice to Sydney Water for comment. Sydney Water did not take any issue with the terms of the proposed clean-up notice. 2. Early that evening, the EPA issued Sydney Water with a Notice of Clean-up Action ("the clean-up notice") pursuant to s 91 of the POEOA. The clean-up notice "directed" Sydney Water "to undertake the following clean-up action": 1. Complete all reasonable and feasible clean up of all affected land and waters (as indicated by the water quality sampling and analysis at condition 3) as soon as practicable, or before 28 September 2018, to minimise the impact of the overflow on the environment and public health, including downstream to the confluence with Woronora River if necessary. 2. The clean-up required by condition 1 must include the removal of all sewage related material and sewage contaminated water related to the incident as far as is reasonably practicable. 3. Water quality sampling and analysis of the affected waterways, must occur twice a week at least 3 days apart until water quality results reach background level. The analysis must include temperature, dissolved oxygen, pH, ammonia, faecal coliforms, and enterococci. 4. The water quality sampling results, once available, must be sent to the EPA's Unit Head Metropolitan Infrastructure by close of business the next business day. 5. Provide updates to the EPA on progress with completion of the tasks outlined in this notice by close of business 26 September 2018. 6. Provide a report to the EPA by no later than 5pm, 5 October 2018 outlining in detail all actions (and their locations) undertaken to comply with conditions a to d including photographic and laboratory evidence to demonstrate clean-up. … Penalty for not complying with this notice ● The maximum penalty for a corporation is $1,000,000 and a further $120,000 for each day the offence continues. … Continuing obligation ● Under section 319A of the Act, your obligation to comply with the requirements of this notice continues until the notice is complied with, even if the due date for compliance has passed. 1. To date Sydney Water had removed some, but not all, of the sewage materials referred to in the clean-up notice. 22 September to 2 October 2018 1. Sydney Water continued with clean-up activities between 22 September and 2 October 2018. No clean-up occurred on 24 and 27 September 2018, however, the FST Team carried out sampling and submitted recommendations for further clean-up on both of those days. 2. Specifically, on 22 September 2018 Sydney Water telephoned a supervisor at Veolia, Cameron Gleg, and requested that Veolia supply a crew to assist it in the clean-up activities. Gleg arranged for another Veolia supervisor, Ian Sayers, to attend the site later that day. 3. At 1.00pm Sayers visited the site and discussed with Martin what equipment was needed. Sayers and Martin agreed that Veolia would assist Sydney Water to carry out clean-up operations the next day. 4. Marion Huxley, a Sydney Water Aquatic Ecologist, also attended and inspected the Bangor overflow site. 5. Sydney Water subsequently provided to the EPA a progress report that stated the following: The site was attended and inspected by a Sydney Water Aquatic Ecologist. She found sewage and effluent present immediately downstream of the initial surcharge manhole. The sewage had pooled and is at a significant depth (approx. >40cm). It was reinforced that the sewage was to be removed manually before flushing, to reduce pollution further downstream. She found evidence of dried sewage pulp, and a dark anaerobic substrate (approx. 15cm) was observed downstream, near and around the mangrove area. Oils were also observed downstream, which may have come from the sewage surcharge. The recommendation was that once the sewage has been eradicated, as far as practicable, the creek should be flushed to ensure a final clean-up. 27 September to 1 October 2018 1. On 27 September 2018 the FST Team attended the site and conducted an environmental impact assessment ("EIA"). It provided the following recommendations for the clean-up ("the third FST recommendation"): 27 September: ● Flush in underground stormwater from lllaroo St for a further 2 day shifts whilst pumping out from the first watergate still in place. ● Remove first watergate and continue flushing for a further dayshift whilst pumping out from watergate adjacent manhole number 7 (painted on manhole). ● Broom remnant pulp from rocks along affected section of creek whilst pumping/flushing. ● Leave signage in place until bacteriological results return under threshold. 1. On 28 September 2018 Paul Smith and Jordan Ormord of Sydney Water carried out flushing and pumping at watergate 1. They did not inspect the creek. 2. On 29 September 2018 Ross Parasiliti and Kociski of Sydney Water continued to flush and pump at watergate 1. They also did not inspect the creek. 3. On 30 September 2018 Gregory Peterson, David Nastoski and Gordan Pavlovski of Sydney Water continued to flush and pump at watergate 1. They walked upstream from watergate 1 to the upstream maintenance hole and observed pulp on creek banks. They stopped the pumping and flushing and used brooms to remove the pulp off the rocks and creek bank. 4. On 1 October 2018 Peterson, Nastoski, Pavlovski, Leon Stevanovski and Mitre Gorgievski of Sydney Water broomed the creekbank and rocks to remove pulp. They then recommenced flushing and pumping from watergate 1 at lower flow rates to enable the pump at that watergate to keep up with the downstream flow. 5. In the morning on 2 October 2018, George Orel and Wethered of the EPA attended the Bangor site. They observed: 1. flushing from a standpipe into the creek and pumping out from watergate 2; 2. that watergate 1 had been removed and was drying on the creekbank, and that sewage solids were in the creek upstream of it; 3. there was sewage solids material covered with sand around the upstream maintenance hole. Excavation pits adjacent to the upstream maintenance hole appeared to be the source of the sand; 4. that the creek was flowing with relatively clear flushed water. Within the first 100m downstream of the upstream maintenance hole they saw numerous areas where grey sewage material appeared to have settled in pools and was caught up among instream debris; 5. that the creek appeared to be impacted by sewage solids upstream of watergate 1 and downstream of watergate 2; and 6. that Sydney Water was blasting and brooming the rocks and substrate above and below watergate 2. Some of the sewage impacted wash water bypassed watergate 2 during this process. Sydney Water then pumped out the contaminated water from watergate 2. Some of the water that bypassed watergate 2 flushed and mobilised the blackwater in the dark pools below that watergate 2 and downstream towards the mangroves. 1. Orel and Wethered took photographs of their inspection and departed the site. 2. Later that day the FST Team attended the site to carry out sampling. They provided the following further clean-up recommendations ("fourth FST recommendation"): 2 October 2018: ● Removal of sewage solids from around the manhole. ● Removal of sewage contaminated materials in the creek downstream of the second watergate through pumping back to sewer as far downstream as is reasonably practicable. 3 October 2018 - the EPA Makes a Written Direction After the Clean-Up Notice Was Issued 1. On 3 October 2018 Treharne provided Sydney Water with details of the EPA's findings from the inspection of the previous day, including the EPA's concern that the clean-up notice had not been complied with. 2. Treharne instructed Sydney Water on the steps it needed to take to complete clean-up. The written instructions included the following clean-up actions from around the upstream maintenance hole down to the creek: a. Completion of a manual clean-up (bagging and removal) of all sewage solids from around the manhole down to the creek. b. The grey sewage material settled out within the creek requires removal to ensure further and ongoing impacts to the creek are minimised. c. As per the Clean-up Notice, Sydney Water is required to complete all reasonable and feasible clean-up of all affected waters including downstream to the confluence with Woronora River if necessary. It's noted that the attached status report indicates that the Sydney Water Aquatic Ecologist recommended that the downstream reach requires a final flush once sewage material has been removed from the upper reaches. The EPA expects, that before this recommended final flush is undertaken, that Sydney Water completes all reasonable and feasible removal of sewage contaminated materials in the creek downstream of the second watergate through pumping back to sewer as far downstream as is reasonably practicable. This should be done as soon as possible and prior to the forecast rain wherever possible. 1. Sydney Water production employees Stevanovski, Nick Kostadinoski, Brendon Hart, Gorgievski and Pavlovski conducted clean-up activities that day. 4 to 8 October 2018 1. On 4 October 2018 Stevanovski, Kostadinoski, Hart, Gorgievski and Pavlovski continued clean-up activities. 2. On 5 October 2018 the FST Team attended the Bangor site and conducted an EIA. No clean-up action was taken by Sydney Water on that day. 3. That same day, Sydney Water provided a progress report pursuant to the clean-up notice which recommended that no further clean-up was required pending bacteriological results, which would be available the following week ("the fifth FST recommendation"). 4. Sydney Water noted that between 20 September and 2 October 2018, the FST Team had made repeated recommendations for manual clean-up which were reinforced by Huxley. The recommendations made it clear that that the sewage was to be removed manually before flushing to reduce pollution further downstream. 5. No clean-up action or further EIA was carried out by Sydney Water from 6 to 8 October 2018. 9 October 2018 1. The FST Team attended the Bangor site on 9 October 2018 and conducted an EIA. This recommendation was the same as that made on 5 October 2018, that is, that no further clean-up was required pending bacteriological results of the water samples collected from the creek ("the sixth FST recommendation"). 2. No clean-up action was taken by Sydney Water that day. 10 to 16 October 2018 1. No clean-up action or EIA was carried out by Sydney Water from 10 to 16 October 2018 inclusive. 2. On 15 October 2018 Sydney Water obtained laboratory results of water samples collected by the FST Team. The results indicated that the water quality in the creek had returned to background levels. 3. That same day an email was sent internally by Sydney Water stating: ALL clean-up apparatus can be removed for the above jobs, signage included. 1. Accordingly, on 16 October 2018 Kostadinovski and Gorgievski visited the site to remove watergate 2 and the signage. 17 October 2018 - Further EPA Investigation 1. On 17 October 2018 Treharne and Wethered attended the Bangor site. They did not observe any Sydney Water staff or contractors present. They did not observe any Sydney Water signage on the fire trail. 2. Rather, they observed that a significant amount of the sewage solids material and sand that was present in bushland around the upstream maintenance hole during their previous inspections had been cleaned up. However, the area that was one to two metres from the upstream maintenance hole still contained a thick layer of sewage material (including rags and faeces) which was partially covered by sand. The affected area was approximately 2m2 in size. They detected a very strong odour when the sewage was disturbed. 3. Nevertheless, they observed the visual water quality of the creek to be clear with no signs of pollution. No odour was present. 4. Treharne took photographs of the inspection on 17 October 2018. 5. No clean-up action or EIA was carried out by Sydney Water on this day. 18 and 19 October 2018 1. On 18 October 2018 the EPA provided Sydney Water with a detailed written advice of the findings from its site inspection the previous day and instructed Sydney Water what it needed to do in order to complete the clean-up. Specifically: …the following clean-up is considered still required by the EPA to comply with the clean-up notice: Completion of a manual clean-up (bagging and removal) of all sewage solids from the creekbank down to the creek 1. Kostadinovski and Gorgievski of Sydney Water conducted clean-up activities that day. 2. On 19 October 2018 they removed 26 bags of material from manual clean-up activities for off-site disposal. 3. Sydney Water then informed the EPA that it had complied with the written advice referred to above. Summary of Sydney Water's Offending Conduct 1. An uncontentious summary of Sydney Water's conduct is as follows. On 14 and 15 September 2018 Sydney Water failed to take all reasonable and feasible measures to communicate the location of the overflow to the FST Team so that the upstream maintenance hole could be identified as the actual overflow point. Sydney Water could and should have included GPS coordinates with a detailed map to assist the FST Team to locate the upstream maintenance hole in the bushland terrain. Instead, Sydney Water failed to identify the correct maintenance hole and consequently took remedial measures at the incorrect maintenance hole (the downstream maintenance hole) from 15 to 20 September 2018. 2. Further, Sydney Water wrongly advised the EPA in the R2 Report that the clean-up of the overflow had been completed on 16 September 2018. In addition, in the report provided by it on 5 October 2018 (as required by the clean-up notice), Sydney Water stated (following the fifth FST recommendation) that no further clean-up was required pending the return of sampling results. On both occasions, this led the EPA to believe that the clean-up had been completed and the clean-up notice complied with. It was not until the subsequent EPA inspections on 19 September and 17 October 2018, respectively, that the EPA realised that the clean-up had not been completed. 3. Sydney Water did not complete the clean-up of all affected bushland and waters of the creek until 19 October 2018. 4. Consistent with the evidence before the Court, it was agreed by the parties that it was reasonable and feasible for Sydney Water to: 1. have manually removed the pulp around the upstream maintenance hole and creekbank, and to have removed the contaminated water and much sooner than it did. The FST Team, Huxley, and the EPA, made repeated recommendations for the manual clean-up of the pulp around the upstream maintenance hole, including, where accessible, instructions to broom rocks along the creek to remove remnant pulp and solids before flushing the area with potable water as soon as practicable. Sydney Water had control over the clean-up activities and could have removed the pulp around the upstream maintenance hole and the creekbank more promptly and without flushing it downstream; 2. have carried out the flushing and pumping of contaminated materials in accordance with Sydney Water procedures in order to minimise sewage materials and contaminated water bypassing over and under watergate 1 and watergate 2 and continuing uncontained downstream towards the mangroves and the Woronora River; and 3. have allocated resources to the clean-up activities that were sufficient to carry out the clean-up in compliance with the clean-up notice. In addition, Sydney Water could have sought additional resources to complete the clean-up of all affected land and water as soon as practicable. 1. As a consequence of these failures, the impact of the overflow on the environment, which included the area between the upstream maintenance hole and watergate 2, and downstream to the Woronora River, and moreover, on public health, was not minimised. Sentencing Principles The Purposes of Sentencing 1. A basic principle of sentencing law is that the sentence imposed must reflect and be proportionate to the objective circumstances of the commission of the offences and the personal or subjective circumstances of the offender (Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 at 490 and Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472). 2. The instinctive synthesis method is the correct method of sentencing. The Court identifies all the factors relevant to the sentence and weighs their significance to arrive at the imposition of an appropriate penalty (Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 at [26] and [29] and Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [35]–[39], [50]–[84] and [136]–[139]). 3. Section 3A of the Crimes (Sentencing Procedure) Act 1999 ("the CSPA") sets out the purposes of sentencing an offender: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. 1. The EPA bears the onus of proving beyond reasonable doubt any aggravating factors for the purpose of sentencing (Gore v The Queen [2010] NSWCCA 330; 208 A Crim R 353 at [26] and [104] and R v Wickham [2004] NSWCCA 193 at [27]). The onus lies upon Sydney Water to demonstrate any factor in mitigation on the balance of probabilities (Wickham at [27] and R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]). 2. In determining an appropriate sentence, the Court considers the objective and subjective circumstances of any offence in the context of the relevant legislative framework (Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [169] and Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65 at [42]). Statutory Matters Required to be Taken into Account in Sentencing Sydney Water 1. The POEOA sets out the matters which must be taken into account in sentencing for offences committed under that Act in s 241: 241 Matters to be considered in imposing penalty (1) In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant): (a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence, (b) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence, (d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence, (e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee, (f) the presence of asbestos in the environment. (2) The court may take into consideration other matters that it considers relevant. 1. Subsections 21A(2) and (3) of the CSPA set out additional aggravating and mitigating factors that the Court must consider. Relevant to the facts of this case they are: 21A Aggravating, mitigating and other factors in sentencing (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows– … (d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences), … (g) the injury, emotional harm, loss or damage caused by the offence was substantial, … (o) the offence was committed for financial gain… The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows– (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, … (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), … (k) a plea of guilty by the offender (as provided by section 22 or Division 1A), … (m) assistance by the offender to law enforcement authorities (as provided by section 23)… Objective Circumstances of the Commission of the Offences 1. The Court must consider the objective gravity or seriousness of the offences. The objective gravity of the offences fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit insofar as the sentence must not exceed that which can be justified as appropriate or proportionate to the gravity of the crimes considered in light of the objective circumstances (Veen (No 2) and Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 354). It fixes the lower limit because allowance for the subjective factors of the case ought not produce a sentence which fails to reflect the objective gravity or seriousness of the offences (R v Dodd (1991) 57 A Crim R 349 at 354 and R v Nichols (1991) 57 A Crim R 391 at 395). 2. The objective seriousness is to be determined by reference to the nature of the offences and not by reference to matters that are personal to a particular offender (Muldrock at [27]). 3. The circumstances to which the Court may have regard in assessing their objective gravity include the matters set out in s 241 of the POEOA and s 21A(2) of the CSPA (Bentley at [163]; Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [110]; and Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 at [48]). Nature of the Offences 1. The nature and purpose of the statutory provision that has been contravened, and its place in the statutory scheme, are illustrative of the objective seriousness of an environmental offence (Bentley at [168]-[169]; Rawson at [49]; Chief Executive, Office of Environment and Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109 at [59]; and Water NSW v Barlow [2019] NSWLEC 30; (2019) 244 LGERA 1 at [17]). 2. The relevant objects of the POEOA identify the purposes of that Act as follows: 3 Objects of Act The objects of this Act are as follows— (a) to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development, (b) to provide increased opportunities for public involvement and participation in environment protection, (c) to ensure that the community has access to relevant and meaningful information about pollution, (d) to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following— (i) pollution prevention and cleaner production, (ii) the reduction to harmless levels of the discharge of substances likely to cause harm to the environment, (iia) the elimination of harmful wastes, (iii) the reduction in the use of materials and the re-use, recovery or recycling of materials, (iv) the making of progressive environmental improvements, including the reduction of pollution at source, (v) the monitoring and reporting of environmental quality on a regular basis, (e) to rationalise, simplify and strengthen the regulatory framework for environment protection, (f) to improve the efficiency of administration of the environment protection legislation, (g) to assist in the achievement of the objectives of the Waste Avoidance and Resource Recovery Act 2001. 1. In relation to the licence offence, EPLs are a primary means of regulation under the POEOA. The commission of the offence therefore undermined the statutory scheme set out in that Act. In Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) [2014] NSWLEC 103; (2014) 206 LGERA 239 the Court opined that (at [104]): 104. …Compliance with licence conditions is the price that entities must pay for permission to engage in potentially polluting manufacturing processes. The conditions imposed in any licence are aimed at maximising beneficial environmental outcomes and minimising environmental harm. They represent a balancing exercise between fostering economic growth and development, on the one hand, and protecting and preserving the environment now and for the future, on the other. Strict compliance with the conditions of any environmental licence is therefore necessary to ensure that this balance is achieved and that the objectives of the POEOA are met. 1. Similar remarks were made by Pain J in Environment Protection Authority v Wollondilly Abattoirs Pty Ltd [2019] NSWLEC 72 (at [35]) and McClellan J in Environment Protection Authority v Incitec Limited [2003] NSWLEC 381 (at [49]). 2. Compliance with condition O3.1 of the EPL is an essential part of the regulatory framework for environmental protection. It required an emergency response to an overflow from the reticulation system. Condition O3.1 foreshadowed the possibility of harm to the environment and public health caused by sewage overflows and the failure to address them. Sydney Water had a clear obligation to prepare and implement measures for dealing with overflows when they occurred. 3. Sydney Water failed to carry out reasonable and feasible actions as soon as practicable thereby contravening condition O3.1 and undermining the objects of the POEOA, by: 1. not carrying out a manual clean-up of sewage around the maintenance hole as required by its own FST recommendation; 2. not containing solids and contaminated water at watergates 1 and 2 as required by its own procedures; 3. carrying out flushing without pumping which led to sewage moving downstream; and 4. failing to communicate clear instructions to its staff. 1. The offence created by s 91 of the POEOA also plays a critical role in giving effect to the objectives of the Act. Chapter 4 of the Act creates a regime of statutory notices, including clean-up notices, designed to protect the environment. Clean-up notices are intended, as their description suggests, to ensure the urgent remediation necessary to avoid or minimise pollution continuing or occurring. Thus, in Cessnock City Council v Quintaz Pty Limited; Cessnock City Council v McCudden [2010] NSWLEC 3; (2010) 172 LGERA 52 the Court remarked that (at [65]): 65 The purpose of s 91 is to serve the primary objects of the POEOA as expressed in s 3 by empowering an appropriate regulatory agency to require the occupier of land to take remedial steps on that land where the authority reasonably suspects that a pollution incident has occurred. There is a clear need to uphold the regulatory system established under the POEOA which depends on personal and corporate entities taking steps to remediate, rectify and remove sources of pollution as directed and in a timely manner. This system minimises any actual or potential environmental harm caused by the pollution and ensures that the costs of remediation are borne by those responsible for the pollution. ... 1. The observations in the cases quoted and referred to above are entirely apposite in the present proceedings. Maximum Penalty 1. The maximum penalty for an offence reflects the seriousness with which the Parliament views its commission (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 and Rawson at [67]). 2. The maximum penalty for the licence offence is $1,000,000. 3. The maximum penalty for the clean-up notice offence is $1,000,000. Section 91(5)(a) of the POEOA also provides a maximum penalty of $120,000 for each day that the offence continues. 4. The EPA submitted that the maximum penalty for the clean-up notice offence was $3,520,000 because the offence continued from "at least" 28 September to 19 October 2018 (that is, $1,000,000 for the initial commission of the offence and $120,000 per day thereafter for 21 days). 5. It relied upon s 242(1) of the POEOA which states that: 242 Continuing offences (1) A person who is guilty of an offence because the person contravenes a requirement made by or under this Act or the regulations (whether the requirement is imposed by a notice or otherwise) to do or cease to do something (whether or not within a specified period or before a particular time)— (a) continues, until the requirement is complied with and despite the fact that any specified period has expired or time has passed, to be liable to comply with the requirement, and (b) is guilty of a continuing offence for each day the contravention continues. 1. Sydney Water refuted the proposition that the clean-up notice offence was a continuing offence attracting a daily penalty. It relied for support upon the decision of Environment Protection Authority v Alkem Drums [2000] NSWCCA 416; (2000) 113 LGERA 130 where Foster AJA applied Sloggett v Adams (1953) 70 WN (NSW) 206 as "sound both in policy and logic" (at [11]) and said that (at [9]-[10]): 9. Street CJ said (at 208): "The question whether the offence which has been committed is a continuing offence, or one which was committed once and for all at a specified time, depends upon consideration of the language of the Act in question. Some offences once committed are complete and concluded and exist only in the past. Other offences, however, are continuing offences and are committed day by day so long as the state of affairs which is forbidden continues to exist, and the person responsible for creating that state of affairs is liable day by day for those offences. The test, it seems to me, is one which was prescribed in Ellis v Ellis (1896) P 251 at 254 (1), by Sir Francis Jeune, who said: "The test whether an offence is to be treated in Jaw as continuous is, I think, whether its gravamen is to be found in something which the offender can, at will, discontinue." Applying that test to the section now under consideration, the legislature has made it clear that the offence is the failure to comply with the requirements of the notice. It is true that the notice deals with the eradication of noxious plants from the land, and one thing which must be done in order to comply with the notice is to eradicate. But the offence here was not a mere failure to eradicate generally, such as would be included under s 472 of the Local Government Act 1919 (NSW); it was a failure to eradicate within the prescribed time, that is, within the twenty-eight days which expired on 2nd July, 1951. At that moment the offence was complete and concluded, and thereafter it existed only in the past. If the offence were a continuing one, it would be one which could be remedied after 2nd July, 1951, but, on the language of the Act, once 2nd July, 1951, had passed the offence was complete, and that offence could never be remedied in the future…Section 473 places a specific burden upon a specific owner or occupier of land to comply with a specific notice which constitutes the offence. In my view, it was not a continuing offence. It was an offence which was committed, finally and conclusively, when 2nd July, 1951, arrived…" 10. Owen J (at 208) said: "Section 473 of the Local Government Act, imposes on the landholder the obligation to comply with the terms of a notice given to him under that section, and sub-s (5) makes it an offence not to comply with it. Where, as here, the notice sets a time for the doing of the act which is required to be done, the offence is, in my opinion, committed once and for all if that act is not done within the time set…I would only add that if the present case is one of a continuing offence, then the offence is one which the landholder could never stop committing. Nothing he could do after the twenty-eight days had expired could ever be a compliance with the notice." 1. According to Sydney Water, the offence created by s 91(5) of the POEOA ought not be construed as a continuing offence because the time limitation by which the clean-up notice had to be complied with was a critical feature of the offence. In the case of a clean-up notice that contains a date by which the notice must be complied with, the offence is complete only once the period for compliance has lapsed. It cannot, unlike a breach of an EPL condition, be rectified or the offending cease on the day or days following (unlike, by contrast, Environment Protection Authority v D F Herbert Pty Limited [2006] NSWLEC 575). 2. If for no other reason than the fact that the offence charged in the summons - and to which Sydney Water has pleaded guilty - was not stated to be a continuing offence, the clean-up notice offence as charged is not a continuing offence. It is essential that a defendant be appraised of the case against them prior to the entry of a plea of guilty. To inform Sydney Water at the time that the EPA's submissions for the sentence hearing were filed (late, moreover), that it had been charged with a continuing offence, was demonstrably unfair. 3. In any event, as submitted by Sydney Water, properly construed, the offence enacted by s 91(5) is not a continuing offence and the maximum penalty for the clean-up notice offence is $1,000,000. The Environmental Harm Caused or Likely to be Caused by the Commission of the Offences (s 241(1)(a) of the POEOA) 1. The environmental harm caused by the commission of the offences is a central consideration in determining their objective gravity and Sydney Water's culpability. 2. Section 241(1)(a) of the POEOA requires the Court to take into account the extent of the harm caused, or likely to be caused, to the environment by the commission of the offences. "Harm" is defined in the Dictionary to the POEOA as: harm to the environment includes any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution. 1. The concept of harm in the context of environmental offences is broad. In Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 Preston J stated that harm includes both actual harm and potential harm (at [145]-[149]): 145. Harmfulness needs to not only be considered in terms of actual harm, the potential or risk of harm should also be taken into account: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366 and Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [175]. Harm should not be limited to measurable harm such as actual harm to human health. It can also include a broader notion of the quality of life. 146. Harm can include harm to the environment and its ecology. Harm to an animal or plant not only adversely affects that animal or plant, it also affects other biota that have ecological relationships to that animal or plant: Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [174]. 147. Harm can be direct or indirect, individual or cumulative. Activities that contribute incrementally to the gradual deterioration of the environment, even when they cause no discernable direct harm to human interest, should also be treated seriously. 148. The culpability of the defendant depends in part on the seriousness of the environmental harm. Sentencing courts have exercised their discretion in relation to penalty on the principle that the more serious the lasting environmental harm involved, the more serious the offence and, ordinarily, the higher the penalty: Camilleris Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 701. If the harm is substantial, this objective circumstance is an aggravating factor: s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999. 149. The fact that the environment harmed by the offenders conduct was already disturbed or modified is not a mitigating factor: State Pollution Control Commission v White Wings Ltd (unreported, Land & Environment Court, No 50129 of 1991, Bignold J, 1 November 1991) at p 4; Environment Protection Authority v Ecolab Pty Ltd (2002) 123 LGERA 269 at 273 [14]; Environment Protection Authority v Coggins (2003) 126 LGERA 219 at 224 [18]; Environment Protection Authority v Abigroup Contractors Pty Ltd [2003] NSWLEC 342 (15 December 2003) at [24]; Environment Protection Authority v Arenco Pty Ltd [2006] NSWLEC 244 (9 May 2006) at [26]. 1. Although Sydney Water is not being sentenced for the sewage overflow itself or its cause, but rather for its conduct in dealing with the aftermath of the overflow, it was not in dispute that: 1. the overflow caused actual environmental harm to the bushland surrounding, and downhill from, the upstream maintenance hole and into and downstream of the creek; 2. no manual clean-up of the overflow took place until 22 September 2018, that is, nine days after the overflow. This exacerbated its impact on the environment; 3. the flushing of the creek without pumping out the contaminated water had the effect of transferring additional sewage material downstream of the creek, and therefore, exacerbated the impact of the overflow downstream; 4. the results of the sampling from the creek established that the overflow caused actual harm to the environment surrounding the bushland and the creek and posed some risk to human health. The actual harm resulted in a change to the chemical and biological conditions of the water in the creek; 5. the overflow was likely to have caused harm to the creek through the deposition of sewage solids and other refuse at the upstream maintenance hole and in the surrounding bushland. It is likely that the introduction of the solid sewage material into the creek and the soil resulted in harm to aquatic life. The duration of that likely harm lasted until 19 October 2018, when the clean-up of solid material around the upstream maintenance hole was completed; and 6. the extent of the actual and likely harm extended from the upstream maintenance hole downstream as far as the confluence between the creek and the Woronora River, approximately 700m north-west of the upstream maintenance hole. 1. The EPA submitted that the commission of both offences resulted in substantial actual and likely harm to the environment, and moreover, undermined the regulatory framework for environmental protection in the State. 2. The EPA relied upon the unchallenged evidence of Christopher Doyle, an expert in the field of ecotoxicology and contamination assessment. Doyle is a Team Leader in Ecotoxicology (Environmental Forensics) in the NSW Department of Planning, Industry and Environment. He affirmed two affidavits on 4 and 28 October 2020, attaching expert reports to both. 3. Evidence of the environmental harm caused by the commission of the offences also includes the results of water sampling and the observations of both the EPA and Sydney Water referred to above in the judgment. 4. In Doyle's first report he opined that: Summary of opinion 8. Based on the information provided to be in the Brief and the observations outlined in this report, it is my opinion the Incident caused actual harm to the unnamed creek through the introduction of sewage into the creek. 9. The nature of the harm was the introduction of 57,000 litres of sewage into the unnamed creek on 14 September 2018 which resulted in: • a change to the chemical condition of the water in the creek through the introduction of elevated concentrations of the toxicant ammonia; • A change in the chemical condition of the creek through a short reduction in dissolved oxygen concentration at the point of the inflow of sewage into the creek; • a change to the biological condition of the waters through the introduction of faecal coliform bacteria; and • The introduction of solid sewage material into the creek and a subsequent change in the visual clarity of the creek water. 10. The extent of harm extended from the inflow point of the sewage into the creek downstream as far as the confluence between the unnamed creek and the Woronora River. The duration of actual harm lasted until at least the 9 October 2018, based on the measured ammonia concentrations in the unnamed creek following the Incident. 11. It is also my opinion, based on the information provided to me in the Brief and the observations outlined in this report, that the Incident was likely to have caused harm to the unnamed creek through the deposition of sewage solids and other refuse at the manhole from which the sewage overflow occurred and in the surrounding bushland. 12. Given the proximity of the manhole and the solid sewage material to the unnamed creek, there was the likelihood the material would have resulted in: • The introduction of further amounts of the toxicant ammonia into the creek, which, if high enough, had the potential to cause toxicity to aquatic life; • The introduction of ammonia into the soil underlying the deposited sewage material as a result of leaching from the material; and, • The transfer of further solid sewage material (including faeces and refuse, such as toilet paper and rags) into the creek, which may have been harmful to aquatic life. 13. The extent of likely harm extended from the manhole from which the overflow occurred downstream as far as the confluence between the unnamed creek and the Woronora River. It is considered that the duration of likely harm lasted until the 19 October 2018, when the clean-up of solid material around the manhole was completed. 1. In his supplementary report dated 28 October 2020, his conclusions were as follows: Opinion on the extent to which the failure to conduct a timely clean up of the Overflow contributed to or exacerbated the harm to the environment and/or human health caused by the Overflow itself 20. It is my opinion the failure to conduct a timely clean-up of the Overflow increased the duration of the actual and likely harm to the environment that was caused by the Overflow. I consider the nature of the environmental harm actually caused and likely to have been caused by the Overflow to have been non-persistent and that an effective clean-up operation would have returned the water quality within the creek to its usual status. 21. I base my opinion regarding the increased duration of actual harm on the ammonia concentrations measured by Sydney Water and the EPA in the unnamed creek, which demonstrated elevated ammonia concentrations occurred in the creek up to and including 9 October 2019 (Tables 6 and 7 of First Report). In particular, the EPA samples demonstrated ammonia concentrations in the unnamed creek exceeded default Australian and New Zealand water quality guidelines for ammonia from 19 September 2018 to 2 October 2018, when the EPA last collected samples (Table 7 of First Report). The highest ammonia concentration of 22.4 mg/L was measured on 19 September 2018 at 480 metres downstream of the Overflow inflow point and 70 metres downstream from the first watergate installed in the creek. This concentration exceeds the default water quality guideline value for ammonia by 19 times. The default water quality guideline value for ammonia was still being exceeded on 2 October 2018 from 450 metres to 670 metres downstream from the Overflow inflow point (Table 7 of First Report). An increased exceedance of the default water quality guidelines is an indication of a greater risk of adverse effects occurring to aquatic organisms. 22. I base my opinion regarding the increased duration of likely harm on the presence of the solid material around the manhole from which the Overflow occurred, which I consider was likely to (1) introduce ammonia into the soil underlying the deposited sewage material; and (2) transfer further solid sewage material and ammonia into the creek. This material was not cleaned up and removed off site until 19 October 2018 (Statement of Agreed Facts at [100]). The likely harm to the environment from this material would have ceased once the material had been cleaned up and disposed of. 23. The greater duration of the harm would have increased the potential for harm to aquatic organisms through increased exposure to the toxicant ammonia and the solid sewage material in the creek. The greater exposure time to both of these stressors would have increased the likelihood of adverse effects on aquatic organisms occurring. Similarly, the greater the length of time the solid material remained around the manhole would have increased the likelihood of ammonia leaching into the underlying soil and potentially affecting organisms in the soil. 24. With regards to human health, I do not consider the failure to conduct a timely clean-up of the Overflow to have affected human health. The most likely impact on human health would have been due to exposure to pathogens in the unnamed creek emanating from the sewage material. However, I do not consider the unnamed creek to be a location where primary contact (i.e. swimming) or secondary contact (i.e. fishing and boating is likely to occur). Conclusions 25. Based on the characteristics of the creek as outlined in Paragraphs [40] to [53] of my First report, I am of the opinion that a manual clean-up was essential to preventing even further deterioration in the quality of the creek following the Overflow event. In particular, there was a high risk of dissolved oxygen levels in the small creek reducing even further and to potentially anoxic levels as a result of degradation of the large amount of sewage material in the creek. Similarly, the potential for harm to aquatic organisms from exposure to the solid material and to the toxicant ammonia would have increased the longer the contamination remained in the creek. However, the clean-up needed to be conducted in a timely manner and needed to be effective in containing the contaminated water so that impacts did not increase further downstream. 26. It is my opinion the flushing of the unnamed creek without clean-up of the solids within the creek and without pumping out the contaminated water from the creek exacerbated the harm caused to the creek by the initial sewer overflow on 14 September 2018. The nature of the harm was an increase in solid sewage material reaching further down the creek than it otherwise would have if the flushing had not been undertaken or had been contained. This would have further reduced the visual clarity of the creek water and increased ammonia concentrations downstream. The solid material had the potential to be harmful to aquatic life through impacts on respiratory surfaces, smothering, ingestion, and through release of the toxicant ammonia to the water. 27. It is my opinion the failure to conduct a timely clean-up of the Overflow increased the duration of the actual and likely harm to the environment that was caused by the Overflow. Similarly, it is my opinion the failure to comply with the clean-up notice by 28 September 2018 increased the duration of the actual and likely harm to the environment that was caused by the Overflow. The greater duration of harm would have increased the potential for harm to aquatic organisms through increased exposure to the toxicant ammonia and the solid sewage material in the creek. 1. Doyle's evidence, particularly his supplementary report, explained the effect of leaving the pollution in situ for five weeks without manual clean-up and the additional adverse impacts on the environment caused by Sydney Water flushing the pollutant downstream. In his opinion, the flushing transferred additional loads of acutely toxic contaminants into the environment and heightened the risks to the aquatic environment. His evidence also explained that the effects of the flushing were exacerbated due to inadequate physical containment by Sydney Water. In particular, the watergates placed in the creek and the pumping activity were ineffective to contain the sewage and water solution flow. 2. The objective culpability of Sydney Water's offending is not mitigated because the receiving waters were in a degraded state due to the overflow itself (Environment Protection Authority v Ecolab Pty Limited [2002] NSWLEC 206; (2002) 123 LGERA 269 at [14] and Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [253] and the cases cited therein). 3. Doyle considered that the environmental harm caused by the overflow itself was non-persistent, such that an effective emergency clean-up operation would have returned the water quality within the creek to its usual status. He noted that the samples taken by Sydney Water and the EPA in the creek demonstrated elevated ammonia concentrations up to and including 9 October 2018 (more than three weeks after the overflow). The solid sewage material around the maintenance hole was likely to have introduced ammonia into the soil and transferred further solid sewage material and ammonia into the creek, which persisted until 19 October 2018. 4. Doyle considered that a manual clean-up was necessary to prevent further deterioration in the quality of the creek following the overflow event. There was a high risk of dissolved oxygen levels in the creek reducing even further to potentially anoxic levels due to the failure to properly clean up. Doyle considered that the failure to do timely manual clean-up, and Sydney Water's flushing of mains water through the area without adequate pumping and watergating, meant that ammonia concentrations reached further downstream and were higher than they would have been due to the overflow alone. 5. The commission of the offences also increased the duration of the actual and likely harm to the environment caused by the overflow. The material was not cleaned up and removed off site until 19 October 2018, which was three weeks after the clean-up notice deadline and five weeks after the overflow. 6. Doyle identified the harm caused by the commission of the offences as including an increased potential for harm to aquatic organisms through greater exposure to the toxicant ammonia and the solid sewage material in the creek. Greater exposure time to these stressors increased the likelihood of adverse effects on aquatic organisms occurring. He noted, however, that the creek was not a location where primary contact or second contact with humans was likely to occur. 7. This latter observation was reinforced by an affidavit of Leon Ow affirmed 18 November 2020. Ow is a Water Quality Analyst employed by Sydney Water. He deposed that the Bangor site is difficult to access and the route along the creek was thick with bush making it difficult to walk along, as evidenced by photos taken by him of the site annexed to his affidavit. 8. Finally, Doyle concluded that the watergates and pumping were ineffective insofar as the flushed waters bypassed them and flowed downstream. 9. In my view, the uncontested evidence before the Court discloses beyond reasonable doubt that both actual and likely harm were caused both to the environment and to the regulatory system designed to protect it by the commission of the offences. The extent of that harm, however, is a matter of controversy. 10. Sydney Water contended that while Doyle's evidence referenced the ways in which the offending either exacerbated or augmented the potential for harm, there was nowhere specified in his reports the extent of that harm. Sydney Water relied upon the approach adopted in Environment Protection Authority v Sydney Water Corporation [2020] NSWLEC 153. 11. The EPA submitted that the fact the harm cannot be quantified was not a basis for eschewing a finding of substantial harm. If rejected the approach taken in Sydney Water Corporation [2020] (especially at [57]-[61]) ought not be followed. 12. Sydney Water's submission ought to be accepted. Absent specific evidence adduced by the EPA of the extent of the actual and likely harm caused by the offending conduct, it cannot be found beyond reasonable doubt that the actual and likely harm to the environment was substantial, a matter that would otherwise be relevant under s 241(1)(a) of the POEOA and that would have constituted an aggravating factor pursuant to s 21A(2)(g) of the CSPA. Sydney Water's State of Mind in Committing the Offences 1. The offences are crimes of strict liability which means that mens rea is not an element of the offence. However, the state of mind of Sydney Water at the time of their commission is a relevant consideration in the determination of an appropriate sentence. A strict liability offence that is committed intentionally, negligently, or recklessly, will be objectively more serious than one committed accidentally (Camilleri's Stock Feeds at 700; Gittany at [123]; Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [42]; and Rawson at [98]). 2. The EPA submitted that Sydney Water committed the offences recklessly or negligently. 3. This gives rise to the question of whether the principle in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 (at 389) applies to the commission of either offence, and therefore, whether the Court is precluded from considering Sydney Water's state of mind by reason of the existence of a more serious water pollution offence under s 116 of the POEOA (Environment Protection Authority v Tea Garden Farms Pty Ltd [2012] NSWLEC 89 at [101]-[102]; Environment Protection Authority v Snowy Hydro Ltd [2008] NSWLEC 264; (2008) 162 LGERA 273 at [145]-[151]; and Environment Protection Authority v Queanbeyan City Council (No 3) [2012] NSWLEC 220; (2012) 192 LGERA 415 at [178]). 4. Section 116 of the POEOA relevantly provides that: 116 Leaks, spillages and other escapes (1) If a person wilfully or negligently causes any substance to leak, spill or otherwise escape (whether or not from a container) in a manner that harms or is likely to harm the environment— (a) the person, and (b) if the person is not the owner of the substance, the owner, are each guilty of an offence. (2) If— (a) the person in possession of the substance at the time of the leak, spill or other escape, or (b) the owner of any container from which the substance leaked, spilled or escaped, or (c) the owner of the land on which the substance or any such container was located at the time of the leak, spill or other escape, or (d) the occupier of the land on which the substance or any such container was located at the time of the leak, spill or other escape, wilfully or negligently, in a material respect, caused or contributed to the conditions that gave rise to the commission of the offence under subsection (1), that person, owner or occupier is guilty of an offence. (3) A person may be proceeded against and convicted of an offence under subsection (2) whether or not a person has been proceeded against or convicted of an offence under subsection (1) in respect of the leak, spill or other escape. (4) It is a defence in any proceedings against a person for an offence under this section if the person establishes that the leak, spill or other escape was caused with lawful authority… 1. The EPA argued that the De Simoni principle was not applicable to either offence. In respect of the licence offence, the gravamen of that offence was the failure to minimise the impact of the overflow by conducting a manual clean-up, not an escape of sewage (cf Sydney Water Corporation [2019] at [166] and Sydney Water Corporation [2020] at [76]). That is, it was the failure to clean up the pollutant by removing the sewage material as soon as practicable that gave rise to the breach of the licence condition, and accordingly, the licence offence. Sydney Water could not have been charged with the offence in s 116 of the POEOA in respect of that conduct. While the offence did exacerbate the harmful effects of the overflow, the pollution (or a leak, spill or escape of a substance) was not the act or result constituting the offence. 2. Similarly, the clean-up notice offence rested upon a failure to comply with the direction to perform a manual clean-up of the sewage. That offence did not involve the conduct encompassed by s 116 of the POEOA so as to engage the De Simoni principle. 3. There was, moreover, no other counterpart crime which involved a higher maximum penalty or a heightened state of mind for either offence. 4. By contrast, Sydney Water argued that having regard to whether or not it acted negligently or recklessly in the commission of the licence offence or the clean-up notice offence contravened the De Simoni principle because it would amount to sentencing it for a more serious crime than that to which it had pled guilty, namely, an offence against s 116 of the POEOA. It submitted that because the result giving rise to the offence was the impact of the overflow on the environment being minimised, and because the summonses for both offences referred to conduct that specifically contemplated that prohibited by s 116 of the POEOA, the principle was engaged. 5. I accept the submission of Sydney Water with respect to the licence offence. In doing so I note that my conclusion is consistent with the reasoning in Sydney Water Corporation [2019] (at [166]) and Sydney Water Corporation [2020] (at [75] and [76]). 6. Having said this, while the Court cannot examine Sydney Water's mental state as an aggravating factor in in the commission of the licence offence, there is nothing precluding the Court from taking into account Sydney Water's mental state in assessing the overall objective seriousness of the commission of that offence or in determining whether there is a need for specific deterrence (Sydney Water Corporation [2019] at [158]-[160] and [167]). 7. The same conclusion cannot be arrived at in respect of the clean-up notice offence. In this regard I agree with the EPA that the De Simoni principle is not enlivened. As the EPA submitted, that offence is premised on a failure to comply with a mandatory statutory direction to perform certain activities and not an act or omission that caused a substance to otherwise escape. The offence created by s 91(5) of the POEOA with which Sydney Water is charged is directed, in this instance, to minimising any harm to the environment once a substance has escaped, whereas the offence created by s 116 of that Act is directed to avoiding the escape of that substance in the first place. There is no overlap as described by Sydney Water. Were it otherwise, the state of mind of an offender could never be taken into account in relation to any clean-up notice contravention which, by its very definition, is premised upon some substance having escaped, leaked, or spilt. By way of illustration, it is difficult to conceive why, had Sydney Water only been charged with an offence under s 91(5) of the POEOA, the De Simoni principle would apply. In short, it would not. Were the Offences Committed Recklessly or Negligently? 1. In Plath v Vaccount Pty Ltd t/as Tableland Timbers [2011] NSWLEC 202 the Court considered the test for recklessness (at [98], quoted recently in Environment Protection Authority v Albiston [2020] NSWLEC 80 at [98]): 98. The term recklessness describes the state of mind of an offender who, while performing or failing to perform an act, is aware of the risk that a particular consequence is likely, in the sense of probable or possible, to result from that act or omission (Pemble v R (1971) 124 CLR 107, La Fontaine v R (1976) 136 CLR 62 and R v Crabbe (1985) 156 CLR 464). Recently in Blackwell v R [2011] NSWCCA 93, the Court of Criminal Appeal described the mental element of "reckless" as (at [76]): 76. The effect of this line of authority is that where the mental element of an offence is recklessness, the Crown must establish foresight of the possibility of the relevant consequence. 1. More recently, Pain J expressed the test for recklessness as follows (Sydney Water Corporation [2020] at [68]): 68. In Environment Protection Authority v Wollondilly Abattoirs Pty Ltd at [42] I considered the meaning of the term "reckless", citing Pepper J in Plath v Vaccount Pty Ltd t/as Tableland Timbers [2011] NSWLEC 202 at [98] as the state of mind of an offender who, while failing to perform an act (or performing an act as in this case), is aware of the risk that a particular consequence is likely to result from that act or omission (citing Pemble v R (1971) 124 CLR 107; [1971] HCA 20, La Fontaine v The Queen (1976) 136 CLR 62; [1976] HCA 52 and R v Crabbe (1985) 156 CLR 464; [1985] HCA 22). 1. An offender's conduct will therefore be found to be reckless if he, she or they are put on notice, in the sense that he, she or they believes or suspects that an act or omission may be unlawful but nevertheless proceeds to engage in it without making further enquiries (see also Director-General, Department of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110 at [136], citing Chief Executive Office of Environment and Heritage v Rummery [2012] NSWLEC 271; (2012) 192 LGERA 314 at [126]; and Chief Executive of the Office of Environment and Heritage, Department of Premier and Cabinet v Turnbull [2014] NSWLEC 150 at [141]). 2. In Sydney Water Corporation [2019] the Court examined in detail the test to establish criminal negligence in the context of environmental offending (at [169]-[187]). 3. In Gordon Plath of the Department of Environment and Climate Change v Fish [2010] NSWLEC 144; (2010) 179 LGERA 386 the Court articulated the test for criminal negligence as follows (at [81]): 81. The Defendants submitted that the relevant principles (accepted by the Prosecutor) as to whether they were negligent in relation to their advice was that, in the criminal context, negligence means more than a breach of a duty of care. To amount to criminal negligence, the degree of carelessness must be such as to show such a disregard for the objects of the statute as to amount to a crime against the state (R v Bateman [1925] All ER Rep 45; (1925) 19 Cr App R 8; see also Andrews v DPP [1937] AC 576 per Lord Atkin at 583; applied in Cittadini v The Queen [2009] NSWCCA 302 at [38]-[40]). For there to be negligence, there must have been an indifference to an obvious risk (R v Taktak (1988) 14 NSWLR 226 at 247, applied in Cittadini). 1. Thus, in order to amount to criminal negligence the EPA must prove more than a breach of a duty of care or a failure to take relevant precautions by Sydney Water with respect to the commission of each offence. 2. Care must be taken when reciting and relying upon the epithet 'indifference to an obvious risk' in its application to the evidence before the Court for it may be apt to mislead and suggest that something less is necessary than the stringent test that criminal negligence demands. As almost all of the cases deploying this language are at pains to emphasise, mere inadvertence to a risk of harm is not enough (Sydney Water Corporation [2020] at [67]). 3. In my view, a preferable recitation of the test for criminal negligence in the context of environmental crime is to ask whether "there has been such a great falling short of the standard of care which a reasonable person would have exercised and which involved such a high risk that harm would follow that the doing of the act or the omission merits criminal punishment" (Sydney Water Corporation [2019] at [188]). 4. In Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114; (2019) 242 LGERA 241, Preston J described the difference between recklessness and negligence as follows (at [51]): 51. A critical difference between [recklessness and negligence] is that recklessness is measured on a subjective standard (the referent being the offender) while negligence is measured on an objective standard (the referent is a hypothetical reasonable person). 1. The EPA relied upon the following facts and circumstances in assessing Sydney Water's state of mind: 1. Sydney Water knew that manual clean-up was required to minimise the impact of the overflow based on its existing internal policies and the FST recommendations; 2. despite no manual clean-up having taken place, Sydney Water advised the EPA on 19 September 2018 that such a clean-up had been completed by 16 September 2018. This was the result of the FST Team attending the wrong maintenance hole following instructions given by a Sydney Water scheduler. Sydney Water repeated this mistake on 21 September 2018. The inadequacy of Sydney Water's system for communicating the location of the overflow was or ought to have been known to Sydney Water; 3. Sydney Water failed to adequately monitor or check that the manual clean-up was complete. It did not allocate supervisors to ensure that clean up actions were completed to the correct standard. This was known to Sydney Water; 4. the sewage was visible to a reasonable observer, as the inspections by the EPA and Sydney Water's officers demonstrated. Sydney Water knew of the location of the overflow within an hour of the odour complaint yet no manual clean-up commenced until 21 September 2018, and the clean-up on that day was minimal. Sydney Water was aware that a substantial amount of untreated sewage remained around the maintenance hole and the creek for a lengthy period of time; 5. the watergates were not effective to contain the flow of contaminated water, yet nothing was done to rectify this situation after flushing commenced; 6. following the clean-up notice on 21 September, Sydney Water was repeatedly advised over nearly five weeks (by the EPA and its own FST Team) that the manual clean-up was not complete; 7. Sydney Water had control over the actions of its employees; and 8. it was evident that without manual clean-up the pollutant would remain on site and that flushing without prior manual clean-up would transfer the untreated sewage downstream. The flushing had no capacity in and of itself to remove the sewage from the environment. 1. In my opinion, the facts and circumstances relied upon by the EPA do not meet the very high threshold demanded by the test for criminal negligence however so formulated in the recent cases in this jurisdiction, for either the licencing offence or the clean-up notice offence. 2. In relation to both offences, however, the evidence demonstrates that Sydney Water acted recklessly. 3. As the evidence discloses it was plainly put on notice that it ought to have manually removed the pulp around the upstream maintenance hole and creekbank and to have removed the contaminated water sooner than it did without flushing it downstream. Officers from both the EPA and Sydney Water were aware of this and made recommendations to this effect. These were not followed in a timely (or at all in some instances) manner. It therefore committed the licencing offence recklessly. 4. Sydney Water also committed the clean-up notice offence recklessly. It was aware after the date for compliance with the clean-up notice had lapsed that the measures specified in the notice had not been effected as mandated. Repeated FST recommendations were made and further inspections were carried out by the EPA which plainly indicated (or put Sydney Water on notice) that the clean-up activities were not sufficient. Sydney Water must have known that the clean-up notice had not been complied with, however, continued with a wholly dilatory and inadequate clean-up effort. 5. The fact that the offences were committed recklessly, while not serving to aggravate the licencing offence, is taken into account by the Court in assessing the overall objective culpability of Sydney Water. Sydney Water's Reasons for Committing the Offences 1. The objective seriousness of the offences may also be measured by reference to the reason for their commission (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366; Gittany at [140]-[141]; Bentley at [237], [246]-[247]; and Rae at [47]). There was no evidence before the Court that Sydney Water committed the offences for any reason (such as financial gain) that would increase the objective seriousness of the crimes (cf s 21A(2)(o) of the CSPA). Reasonable Foreseeability of the Risk of Harm (s 241(1)(c) of the POEOA) 1. The extent to which Sydney Water could have reasonably foreseen the risk of harm caused by the commission of the offences is a relevant objective circumstance in determining an appropriate sentence (Camilleri's Stock Feeds at 700 and Rawson at [48]). 2. For both offences, the risk of harm to the environment was foreseeable. Condition O3.1 is premised on the fact that sewage overflows may be harmful to the environment and that urgent action is essential to mitigate the harmful effects. The same may be said for the clean-up notice the subject of s 91(5) of the POEOA. 3. Sydney Water was aware that untreated sewage presents a foreseeable risk to an environment, especially any aquatic environment, that it enters. This environment was no exception. That risk was foreseeable whether or not the failure to do a clean-up was accompanied by flushing with mains water. The flushing exacerbated the failure to manually remove the sewage material after the overflow (by sending the sewage further into the environment). Those foreseeable risks (of harm caused by not removing the sewage and by flushing) were not appropriately managed by Sydney Water in the aftermath of the overflow event. Control Over the Causes of the Harm (s 241(1)(d) of the POEOA) 1. The offences arose out of the conduct of Sydney Water in managing the overflow and its aftermath, a process over which Sydney Water was in complete control. The clean-up required Sydney Water to use manual cleaning crews to remove the sewage material and to implement physical obstructions in the creek to contain any flow of sewage material. 2. Sydney Water had control of the FST recommendations, the allocation of appropriate staff to manage and carry out the clean-up, the provision of resources, and the ability to monitor the clean-up process. The Practical Measures Available to Sydney Water to Avoid the Harm (s 241(b) of the POEOA) 1. There is no doubt that it would have been reasonable and feasible for Sydney Water to manually remove the sewage around the maintenance hole and creekbank and the contaminated water much sooner than it did; to carry out flushing in accordance with its own internal procedures (rather than in a manner which caused contaminated water to bypass the watergates and continue downstream towards mangroves and the Woronora River); and to allocate sufficient and appropriate resources to comply with the clean-up notice. 2. The FST recommendations and the actions directed by the EPA on 20 September 2018, for example, were practical measures that Sydney Water could have taken to minimise the impact of the overflow on the environment and public health. They could have been implemented but were not. 3. As Emanuela Demo, the Head of Network Regional Operations and Maintenance for Sydney Water, put it in an affidavit affirmed 16 November 2020, there were "numerous deficiencies in the response to the overflow" and that "Sydney Water has improved its response systems for the purpose of ensuring the deficiencies that occurred in this incident response are not repeated." It was specifically noted that improvements have been implemented in the revised work instructions. There was no suggestion that these improvements, albeit recognising that they amount to a "substantial investment" by Sydney Water, could not have been implemented sooner thereby avoiding the harm caused by the commission of the offences. Conclusion on the Objective Seriousness of the Offences 1. Notwithstanding the criticism directed to an assessment of objective seriousness referable to a notional point on a spectrum of culpability (R v DP [2019] NSWCCA 55 at [42] per Fullerton J), it remains a convenient shorthand descriptor even if it is not a necessary component of the sentencing task. 2. In the EPA's submission: 1. the licence offence was in the medium range of objective seriousness having regard to (among other circumstances) the duration of the offence (35 days), the fact it was untreated sewage, the actual harm to the environment caused by the offence, the state of mind of Sydney Water in the commission of the offence, the foreseeability of the harm, and the practical measures that could have been taken to avoid the harm. Further, the inadequacy of the clean-up was repeatedly and specifically drawn to Sydney Water's attention during that period; 2. the clean-up notice offence was also in the medium range of objective seriousness having regard to (among other circumstances) the 21 day (at least) duration of the offence, the nature of the pollutant, the actual harm to the environment, the state of mind of Sydney Water during the commission of the offence, the foreseeability of the harm, and the practical measures that could have been taken to avoid the harm. 1. Sydney Water complained that the EPA's submissions overly emphasised the temporal and spatial features of the overflow and ignored the minimal impact of the offences with which it had been charged. It also reminded the Court of the particular difficulties presented by the natural environment in which the overflow occurred as deposed to by the Ow evidence. It contended that the offences were at the low end of the range of objective seriousness. 2. I have taken the Ow evidence into account. I have also considered the Demo evidence regarding Sydney Water's response to the overflow and the conditions and resourcing of Sydney Water across its extensive areas of operation, especially the licensed premises the subject of the EPL. In my view, having regard to the findings made above, particularly in relation to the extent of the harm occasioned by the commission of the offences and Sydney Water's state of mind at the relevant time, I find that the objective seriousness of the offences is at the very high end of the low range (or conversely at the very lower end of the mid range). Put another way, it is higher than that posited by Sydney Water, but not as serious as that contended for by the EPA. Sydney Water's Subjective Circumstances 1. Within the limits set by the objective seriousness of the offences, the Court must take into account the subjective factors relevant to Sydney Water. A proportionate sentence requires the Court to take into account any mitigating factors that are specific to Sydney Water (s 21A(3) of the CSPA). Relevant subjective circumstances in the present proceedings include: 1. whether the environmental harm caused by the commission of the offences was not substantial (s 21A(3)(a)); 2. whether Sydney Water has demonstrated remorse for its commission of the offences and its prospects of rehabilitation (s 21A(3)(i) and (h)); 3. whether, and when, Sydney Water entered a guilty plea (ss 21A(3)(k) and 22 and R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [152]-[155]); 4. whether Sydney Water provided assistance to the regulatory authorities in the investigation and prosecution of the offences (ss 21A(3)(m) and 23); 5. whether Sydney Water is of good character (s 21A(3)(f)); and 6. whether Sydney Water has a prior criminal record (s 21A(3)(e)). The Environmental Harm Was Not Substantial 1. Given the findings above concerning the extent of the environmental harm caused by the commission of the offences it may be inferred that the harm was not substantial, which is a factor in Sydney Water's favour. Contrition and Remorse 1. In an affidavit affirmed 16 November 2020, Iain Fairbairn, Head of Wastewater and Environment at Sydney Water, expressed genuine contrition and remorse for the commission of the offences on behalf of Sydney Water by stating that "Sydney Water recognises and accepts that the actions taken in the clean-up of the overflow fell short of that which is reasonably required to appropriately protect the environment." A similar sentiment was expressed by him with respect to "failings in the clean-up response and the pollution" which were described as "not acceptable". 2. As referred to above, the Demo affidavit set out the various improvements to its system of management and response to overflows that Sydney Water has since implemented. 3. I find that Sydney Water accepts responsibility for its actions and has demonstrated real remorse for the commission of the offences. 4. I also find that on the basis of the Fairbairn evidence, Sydney Water's prospects of rehabilitation are good. Assistance to the EPA 1. As the facts above disclose, Sydney Water has cooperated with the EPA during its investigation into the commission of the two offences. It has, moreover, agreed to a comprehensive statement of facts that has resulted in a significant savings of prosecutorial time and resources. Early Pleas of Guilty 1. Sydney Water did not enter pleas of guilty at the earliest available opportunity, but having noted this, the procedural history of the proceedings cannot be ignored. The pleas of guilty were entered on 7 February 2020, upon the EPA filing amended summonses in each matter after negotiation with Sydney Water. In these circumstances, the utilitarian value of the pleas was not diminished (R v Dib [2003] NSWCCA 117 at [5]-[6] and Samuel v R [2017] NSWCCA 239 at [60]). 2. Sydney Water is therefore entitled to the full 25% discount for the utilitarian value of each guilty plea. Prior Convictions of Sydney Water 1. Prior convictions are an aggravating factor under s 21A(2)(d) of the CSPA. On the other hand, a lack of significant prior convictions can act as a mitigating factor pursuant to s 21A(3)(e) of the CSPA. 2. The EPA sought to rely on penalty notices issued to Sydney Water. Because these are not criminal convictions they are therefore irrelevant for the purposes of s 21A(2)(d) (Sydney Water Corporation [2019] at [298]). 3. Sydney Water has at least six prior convictions for similar offences: 1. on 16 July 2019 it was convicted of two charges of pollution of water contrary to s 120 of the POEOA and one charge of breach of a condition of an EPL contrary to s 64 of the Act (Sydney Water Corporation [2019]); 2. less than a year later on 6 October 2020, it was convicted of a two similar charges, namely, a offence against s 64 and an offence against s 120 (Sydney Water Corporation [2020]); 3. on 21 April 2015 Sydney Water was convicted of an offence against s 120 of the POEOA and an offence against s 64(1) of that Act in respect of an incident at the Malabar Waste Water Treatment Plant (Environment Protection Authority v Sydney Water Corporation [2015] NSWLEC 80); 4. on 21 July 2000 Sydney Water was convicted of an offence of pollution of waters contrary to s 16(1) of the Clean Waters Act 1970 in respect of an overflow of sewage from a manhole in Helensburgh to Camp Creek on 12 October 1998 (Environment Protection Authority v Sydney Water Corporation [2000] NSWLEC 156); 5. less than five months earlier on 3 March 2000, it was convicted of an offence of pollution of waters contrary to s 16(1) of the Clean Waters Act 1970 (Environment Protection Authority v Sydney Water Corporation [2000] NSWLEC 80). During the operation of its West Camden Sewage Treatment Plant on 22 to 23 October 1998, approximately 7,000 to 8,000L of aluminium sulphate was discharged into a tributary of a creek; and 6. on 11 December 1998 Sydney Water was convicted of an offence against s 17D(9) of the Pollution Control Act 1970 for a contravention of a condition of a pollution control licence requiring it to maintain and operate plant and equipment in a proper and efficient manner (Environment Protection Authority v Sydney Water Corporation [1998] NSWLEC 144). The incident involved a cliff face discharge at North Head Sewage Treatment Plant. 1. Relying on the evidence deposed to in the Demo affidavit, Sydney Water emphasised the extensive scope of its operations in relation to the handling and treatment of effluent. It submitted that its prior criminal record should have a neutral effect and that it neither manifested a continuing attitude of disobedience nor a propensity to reoffend, and therefore, it should not be considered as an aggravating factor. 2. I cannot agree. In circumstances where the last three offences have been committed in reasonable temporal proximity to each other it is appropriate to view the prior convictions as an aggravating factor. In so determining, I am mindful of the statement of the plurality in Veen (No 2) (at 477): …the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences. 1. I therefore take into account Sydney Water's prior convictions as an aggravating factor in sentencing, which also means that it cannot benefit from any mitigation pursuant to s 21A(3)(e) of the CSPA. The Likelihood of Sydney Water Reoffending 1. Given Sydney Water's prior criminal record, I find that there is a likelihood that it will reoffend (s 21A(3)(g) of the CSPA). In arriving at this conclusion, I am nevertheless mindful of Demo's evidence that Sydney Water has now improved its management and response procedures with respect to overflows. The Good Character of Sydney Water 1. Despite its prior convictions, I find that Sydney Water is nonetheless of good corporate character. In his affidavit, Fairbairn detailed the extensive and important community work undertaken by Sydney Water, including the following laudable projects: 1. making Paramatta River swimmable by 2025; 2. real time water quality monitoring for recreational use of Berowra Creek and Lower Hawkesbury River; 3. removing raw sewerage outfalls from Vaucluse and Diamond Bay; 4. Beachwatch; 5. Waterways and Wetlands; 6. education programs such as Brand Without a Bottle and Beat the Bottle; 7. permanent water stations; 8. portable water stations; 9. contribution to the Climate Change Fund; 10. drought response water efficiency campaign; and its 11. community grants program. The Offence Could Have Been Prosecuted in the Local Court 1. In Harris v Harrison [2014] NSWCCA 84; (2014) 86 NSWLR 422 (at [92]) the Court of Criminal Appeal held that this Court must take into account whether the offence could have been prosecuted in the Local Court. I have done so. Deterrence, Retribution and Denunciation 1. The Court is required to take into account both specific and general deterrence (Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 at 569 per Brennan J). 2. The penalty imposed by the Court must serve as a general deterrent (Axer at 359; Camilleri's Stock Feeds at 701; and Bentley at [139] and see s 3A(b) of the CSPA). In Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278 Preston J discussed general deterrence in the context of sentencing for environmental crime as follows (at [65]-[68]): 65. The sentence of the Court is an important denunciation of the conduct of the defendant. 66. The sentence must also serve as a public deterrent. It is the duty of the Court to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who might otherwise be tempted by the prospect that only a light punishment will be imposed: R v Rushby (1977) 1 NSWLR 594 at 597-598. 67. This factor is particularly relevant to environmental offences. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Limited (1993) 78 LGERA 349 at 354; and Director-General, National Parks and Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002) at [85] and [93]. 68. The deterrent effect of a fine must send an important message that laws requiring the conservation of the environment and compliance with approvals to carry out activities that may harm the environment, must be complied with. Also, the community must be satisfied that, by the Court's sentence, the offender is given his just desserts. 1. The Court accepts that embedded in the determination of the appropriate sentence to be imposed on Sydney Water must be an element of general deterrence to ensure that large scale sewerage utilities operate in a manner that does not harm the environment. 2. In relation to specific deterrence (s 3A(b) of the CSPA), Sydney Water submitted that there was no need for this element to be considered in the imposition of an appropriate penalty because the pollution event and the subsequent response was antipathetic to the objectives of Sydney Water and it has made changes immediately to ensure that the offending does not happen again. Furthermore, as Demo made clear in her affidavit, the offences occurred at a time when Sydney Water was dealing with a number of choke events as a result of persistent drought conditions. The current offences are not representative of a disregard for the law, rather they are indicative of the failure of procedures that existed at the time when the drought was placing additional pressure across the system and in respect of which Sydney Water has acted quickly to address. 3. While the Court takes into account the pervasive drought in existence at the time the overflow occurred, the overflow itself was not the subject of any charge. Rather, it was the dilatory and ineffective manner by which Sydney Water remediated the overflow that resulted in the charges. There is no cogent evidence that this conduct was caused or exacerbated by the drought. Given Sydney Water's history of prior offending, I agree with the EPA that there is a very real need for specific deterrence in this instance (Environment Protection Authority v Ravensworth Operations Pty Limited [2012] NSWLEC 222 at [48] and Environment Protection Authority v Whitehaven Coal Mining Limited [2019] NSWLEC 27; (2019) 239 LGERA 31 at [250]). 4. In this context, the Court notes that Sydney Water continues to operate a large sewerage network where there is an ongoing risk of chokes, overflows, and pollution. I accept the submission of the EPA that the penalty imposed must serve to reinforce Sydney Water's responsibility to ensure that its activities are done in compliance with its EPL and in a manner that does not result in pollution other than as allowed for under its licence (see, for example, conditions L7.2 and L7.4). Consistency in Sentencing 1. The task of the sentencing court is to obtain even-handedness in the imposition of any sentence (R v Oliver (1980) 7 A Crim R 174 at 177 and R v Visconti [1982] 2 NSWLR 104 at 107C). However, care must be taken in achieving consistency. There is always difficulty comparing the penalty in one case with that in another because of the wide divergence of facts and circumstances in each (Axer at 365). The sentence imposed in a single case does not demonstrate the limits of a sentencing court's discretion (Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304 at [35] and Environment Protection Authority v Barnes [2006] NSWCCA 246 at [79]). 2. The EPA provided the Court with a table of comparable cases summarising the sentencing considerations and penalties imposed in the following decisions: 1. Sydney Water Corporation [2020]; 2. Environment Protection Authority v Crown in Right of New South Wales [2019] NSWLEC 178; 3. Sydney Water Corporation [2019]; 4. Environment Protection Authority v Hawkesbury City Council [2017] NSWLEC 39; 5. Environment Protection Authority v Hunter Water Corporation [2016] NSWLEC 76; 6. Sydney Water Corporation [2015]; 7. Environment Protection Authority v Imad Osman-Kerim [2017] NSWLEC 63; and 8. Cessnock City Council. 1. Many of these cases were summarised in Sydney Water Corporation [2019] and Sydney Water Corporation [2020], which I adopt without repetition for the purposes of this judgment. I have read the remaining authorities referred to me by the parties and I have compared them with the facts and circumstances of the present case. 2. Most recently in Sydney Water Corporation [2020], Pain J imposed a monetary penalty on Sydney Water for an offence against s 120 of the POEOA in the sum of $84,000 and $90,000 for a breach of s 64 of that Act (reduced further after the application of the totality principle). The offences arose from an overflow of approximately 64,000L of untreated sewage from a maintenance hole in a national park. Similarly, instead of manually cleaning up the sewage, Sydney Water used mains water to flush the sewage causing it to flow into Lane Cove River (the pollution of water offence). It took more than three weeks and communications from the EPA for Sydney Water to complete the clean-up (the EPL offence). Water sampling showed elevated levels of faecal coliform and enterococci within a creek and the Lane Cove River. The impacts extended to more than 2.4kms into the River downstream from the overflow. The Court found there to be likely harm to the environment and held both offences to be at the high end of the low range of objective seriousness. 3. The two offences presently before the Court are somewhat comparable in their objective seriousness as those committed in Sydney Water Corporation [2020] and objectively less serious than most of the other cases referred to above, especially having regard to the amount of environmental harm caused. Many of the subjective circumstances in mitigation present in this case were also present in the Sydney Water Corporation [2020] proceedings. Costs 1. Sydney Water agreed to pay the EPA's investigation costs fixed in the sum of $10,758 pursuant to s 248 of the POEOA. 2. Sydney Water has also agreed to pay the EPA's professional costs, however, these have not been agreed. Because there was no agreement between the parties, under s 257B of the Criminal Procedure Act 1986 the professional costs will need to be assessed under s 257G(b) of that Act. 3. While it is legitimate to take into account any associated costs order in determining the appropriate penalty to be imposed (Harris at [100]; Barnes at [78]; and Environment Protection Authority v Causmag Ore Company Pty Ltd [2015] NSWLEC 58 at [123]), an order for costs does not result in a reduction in any monetary penalty imposed to an amount lower than that suggested by the general pattern of sentencing for the relevant offence (Liverpool City Council v Leppington Pastoral [2010] NSWLEC 170 at [50]). Totality Principle 1. Because there are multiple offences arising out of the same conduct, an issue arose as to whether the totality principle applies. In Orica (the Nitric Acid Air Lift Incident) the Court discussed the totality principle and its application at length (at [224]-[229]. More recently, see Barlow at [111]-[112]). Those principles are relied upon without repetition in these proceedings. 2. The EPA submitted that while there was overlap between the commission of the two offences, the clean-up notice offence involved criminality additional to that manifested by the breach of the licence condition insofar as Sydney Water failed to heed multiple reminders of its obligations following the issuing of the notice. 3. Although there is some force in the EPA's submission, this does not, in my view, preclude the application of the totality principle in this instance. The two contraventions arose out of the same incident and factual matrix. The EPL offence arises directly out of the same conduct that constitutes the offending the subject of the contravention of s 91(5) of the POEOA, as made plain by the express words of the summons relating to the latter charge. Put another way, the failure to undertake the clean-up in a timely manner as stipulated in the notice was the same conduct that caused a breach of the EPL. 4. It is therefore appropriate to apply the totality principle in determining the appropriate sentence for each offence to ensure that the aggregate penalty reflects Sydney Water's total criminality (Barlow at [111]). Appropriate Sentence 1. Having regard to the objective seriousness of the offence and the mitigating subjective factors of Sydney Water, together with the penalties imposed in the relevant comparable cases, I consider that the appropriate sentence to be imposed for the EPL offence is a monetary penalty of $150,000. 2. For the clean-up offence the appropriate sentence to be imposed on Sydney Water is a monetary penalty of $150,000. 3. These figures must be discounted by 30% for the utilitarian value of Sydney Water's early plea of guilty and other factors in mitigation as follows: 1. $105,000 for the EPL offence; and 2. $105,000 for the clean-up notice offence. 1. The clean-up notice offence must be further reduced to $80,000 after the application of the totality principle. 2. The total monetary penalty imposed on Sydney Water for the commission of the two offences is therefore $185,000, which, in my opinion, meaningfully reflects the overall criminality of Sydney Water. Monetary Penalty Imposed to be Paid in Part to the Sutherland Shire Council for a Nominated Project 1. The parties have agreed, and I consider it appropriate that, pursuant to s 250(1)(e) of the POEOA a portion of the monetary penalty imposed by the Court is to be paid to Sutherland Shire Council ("the Council") for the Watercourse Rehabilitation and Bush Regeneration Project at Sabugal Gully, Engadine, as described in annexure A to this judgment ("the Project"). 2. The EPA has submitted that an order be made that all future public references made by Sydney Water to its contribution to the Project, until 12 months after the date the Project is completed, are to be accompanied by the following statement: Sydney Water Corporation's contribution to the Watercourse Rehabilitation and Bush Regeneration Project at Sabugal Gully, Engadine is part of a penalty imposed by the Land and Environment Court on 28 January 2021 after Sydney Water Corporation was prosecuted by the Environment Protection Authority and convicted of one offences against s 64(1) (breach of licence condition) and once offence against s 91(5) (failure to comply with a clean-up notice) of the Protection of the Environment Operations Act 1997 (NSW). 1. There was no opposition to this course by Sydney Water. 2. Accordingly, $100,000 of the total monetary penalty imposed on Sydney Water is to be paid to the Council for the purpose of the Project in the manner described above. Moeity 1. The EPA contended that half of the remaining monetary penalty not paid to the Council (that is, $42,500 or 50% of the remaining $85,000) should be paid to the EPA pursuant to s 122 of the Fines Act 1996. This was because, according to the EPA, an order for the payment of its investigation costs will not compensate it for the totality of the time spent by EPA officers investigating the commission of the offences. 2. In Sydney Water Corporation [2020] where a similar order was obtained, Pain J opined as follows (at [116]): 116. The Prosecutor seeks an order that one half of any monetary penalty imposed by the Court be paid to the EPA pursuant to s 122 of the Fines Act 1996 (NSW). There is power to make such an order as s 122(1)(a) and (b) are satisfied, as is subs (3). Whether to make such an order is discretionary. Cases such as Secretary, Department of Planning and Environment v AGL Energy Limited; Secretary, Department of Planning and Environment v AGL Upstream Infrastructure Investments Pty Ltd [2017] NSWLEC 2 (AGL Energy) have considered whether a moiety should be ordered despite provision for the payment of investigation costs, as there is under the POEO Act. A moiety has been ordered in such circumstances. The Prosecutor seeks an order for the reimbursement of specific investigation expenses under s 248 of the POEO Act, as noted above in [114]. These expenses do not include the significant time spent by EPA officers investigating the offences and so do not fully compensate the EPA. The EPA's professional costs under the Criminal Procedure Act 1986 (NSW) also do not fully compensate the EPA as only a proportion of professional costs is likely to be recovered. An order for a moiety would therefore not represent a "windfall" or "benefit" to the EPA. The Prosecutor seeks an order for moiety to compensate it and to support the sustaining of environmental law enforcement activities, per Moore J in AGL Energy. 1. In that case, the orders proposed by the prosecutor provided for the payment of an amount to the National Parks and Wildlife Service for the purposes of a bush regeneration project in a national park. A moiety order of 50% of any additional monetary penalty determined by the Court not paid to the project was sought. Her Honour accepted that the EPA did not obtain a windfall gain if the order was made and she was therefore "theoretically…open to doing so" (at [118]). 2. Sydney Water did not cavil with the same approach being adopted in the present proceedings but suggested that because these were proceedings between two public authorities, it was preferable that any monetary penalty be directed either to a specific environmental compliance program or to general revenue, and not to the EPA. 3. Because the award of investigation costs under s 248 of the POEOA will not fully compensate the EPA in this regard, I am of the opinion that an order for a moiety is appropriate. In these circumstances, the EPA is unlikely to "obtain any windfall gain if such an order is made" (Sydney Water Corporation [2020] at [118]). Publication Order 1. Finally, pursuant to s 250(1)(a) of the POEOA the parties have agreed to a publication order being made. The terms of the publication order were, after some discussion, agreed and are set out in annexure B to this judgment. 2. Having regard to the circumstances of this case, I find that the making of a publication order is appropriate (Environment Protection Authority v Ditchfield Contracting Pty Ltd [2018] NSWLEC 90 at [76] and Waste Recycling at [242]), which includes an order that the commission of the offences and the penalty imposed be publicised on social media (Sydney Water Corporation [2019] at [339]). Orders 1. In light of the reasons given above, the Court orders that: In proceedings 286475 of 2019 1. Sydney Water Corporation is convicted of the offence against s 64 of the Protection of the Environment Operations Act 1997 as charged; In proceedings 286476 of 2019 1. Sydney Water Corporation is convicted of the offence against s 91(5) of the Protection of the Environment Operations Act 1997 as charged; In proceedings 286475 of 2019 and 286476 of 2019 1. pursuant to s 250(1)(e) of the Protection of the Environment Operations Act 1997, Sydney Water Corporation is to pay the amount of $100,000 to Sutherland Shire Council within 28 days of this order for the purposes of the Watercourse Rehabilitation and Bush Regeneration Project at Sabugal Gully, Engadine as described in annexure A to these orders ("the Project"); 2. for the period of 36 months from the date of these orders public references by Sydney Water Corporation to its contribution to the Project must be accompanied by the following statement: Sydney Water Corporation's contribution to the Watercourse Rehabilitation and Bush Regeneration Project at Sabugal Gully, Engadine is part of a penalty imposed by the Land and Environment Court on 28 January 2021 after Sydney Water Corporation was prosecuted by the Environment Protection Authority and convicted of one offence against s 64(1) (breach of licence condition) and one offence against s 91(5) (failure to comply with a clean-up notice) of the Protection of the Environment Operations Act 1997 (NSW). 1. Sydney Water Corporation is fined an additional monetary penalty of $85,000 ("the additional monetary penalty"); 2. pursuant to s 122 of the Fines Act 1996, a moiety of 50% of the additional monetary penalty, or $42,500, is to be paid to the Environment Protection Authority; 3. pursuant to s 248(1) of the Protection of the Environment Operations Act 1997, Sydney Water Corporation is to pay the Environment Protection Authority's costs and expenses reasonably incurred during the investigation of the offences fixed in the amount of $10,758; 4. pursuant to s 257B of the Criminal Procedure Act 1986, Sydney Water Corporation is to pay the Environment Protection Authority's costs as determined under s 257G of the Criminal Procedure Act 1986; 5. pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, Sydney Water Corporation at its expense is to: 1. within 28 days of the date of this order, cause a notice of a minimum size as near as practicable to 180cm² to be published within the first 12 pages of The Sydney Morning Herald, The Daily Telegraph and The Leader, with the text of such notice and the Sydney Water Corporation logo (of reasonable size) to be as set out in annexure B to these orders; and 2. within 42 days of the date of this order provide to the Environment Protection Authority a copy of the entire page of each of The Sydney Morning Herald, The Daily Telegraph and The Leader in which the notice was published in accordance with order 9(a) above; 1. pursuant to s 250(1)(a) of the Protection of the Environment Operations Act 1997, Sydney Water Corporation is to: 1. within 14 days of the date of this order, publicise the offences and the orders made against it by posting the text of annexure B to these orders on its Facebook wall, together with the photograph attached at annexure C to these orders and a hyperlink directly to the Court's judgment as published on the New South Wales CaseLaw website and tagging the NSW Environment Protection Authority in the post. The post is to be made between the times of 8am and 10am or between 4.30pm and 6.30pm on a weekday. This post must remain as a pinned post on Facebook that remains at the top of the Sydney Water Facebook page for a minimum of seven days; 2. within 14 days of the date of this order publicise the offences and the orders made against it by tweeting the following text from its Twitter account: @SydneyWaterNews prosecuted by @NSW_EPA and is convicted of 2 offences for the inadequate clean-up of an overflow of approximately 57,000 litres of untreated sewage into an unnamed creek and towards Woronora River at Bangor in September 2018. Ordered to pay $185,000 in penalties: [insert hyperlink to judgment as published on NSW Caselaw website] together with a hyperlink directly to the Court's judgment as published on the New South Wales CaseLaw website (as indicated above) and together with the photograph at annexure C to these orders. The tweet is to be made between the times of 8am and 10am or between 4.30pm and 6.30pm on a weekday. This tweet must remain as a pinned tweet on Twitter that remains at the top of the Sydney Water Twitter page for a minimum of seven days. The Environment Protection Authority may tag Sydney Water's Twitter account in any Environment Protection Authority tweets about the judgment; and 1. within 14 days of the date of this order publicise the offences and the orders made against it by posting the photograph at annexure C to these orders on its Instagram account together with the following caption: @sydneywater was prosecuted by @NSW_EPA and is convicted of offences related to inadequate clean-up of an overflow of approximately 57,000 litres of untreated sewage into an unnamed creek and towards Woronora River at Bangor in September 2018. Sydney Water pleaded guilty. The first offence was for failing to take all reasonable and feasible steps to minimise the impact of a sewage overflow as required by its environment protection licence. The second offence was failing to comply with a clean-up notice. Sydney Water was ordered to pay a total of $185,000 in penalties, including $100,000 to Sutherland Shire Council for the Watercourse Rehabilitation and Bush Regeneration Project at Sabugal Gully, Engadine: [insert URL to judgment as published on NSW CaseLaw website] #sydneywater #environment #EPA #NSWEPA #sutherlandshire #bangor together with an URL to the Court's judgment as published on the New South Wales CaseLaw website (as indicated above). The post is to be made between the times of 8am and 10am or between 4.30pm and 6.30pm on a weekday. This post must remain on its Instagram account for a minimum of 30 days; and 1. the exhibits are to be returned. *********** Annexure A – Project Proposal – Watercourse Rehabilitation and Bush Regeneration at Sabugal Gully, Engadine Prepared for NSW Environment Protection Authority November 2020 1. INTRODUCTION 1.1 Background Sutherland Shire is a 370 km2 local government area located about 26 km south of Sydney CBD. The urbanised area of the Shire contains over 250 km of freshwater and estuarine creeks, many of which are highly valued by the local community. Like most urban creeks, the creeks in the Sutherland Shire suffer from the 'urban stream syndrome'. This syndrome is characterised by creeks with 'flashy' hydrology, eroded bed and banks, poor water quality, reduced biodiversity and overall poor amenity. The condition of the urban creeks has a direct impact on the health of the Shire's larger receiving waterways like the Woronora River and Georges River. In 2013 Sutherland Shire Council completed the Sutherland Shire Watercourse Assessment and Rehabilitation Prioritisation Project (SSWARPP) which assessed and scored over 900 creek reaches across 30 sub-catchments. The project subsequently prioritised creeks for rehabilitation to improve their recreational, environmental and social value. Council has been implementing the project recommendations as part of its waterway rehabilitation program, starting with high priority reaches. To date over 10 km of creeks have been rehabilitated and are now included in Council's ongoing waterway maintenance program. These programs complement Council's bushcare volunteer program. 1.2 Overview of Subugal Gully Subugal Gully in Engadine is one of many tributaries of the Woronora River that drain the flatter ridge-top developments in the western suburbs of the Shire through steeper sandstone woodland and gully forest before discharging to the Woronora River. Despite urbanisation of the upper creek catchment, the 2013 SSWARPP found Subugal Gully and its riparian corridor to be in a fair to stable condition with a high level of ecological resilience (refer Appendix A). Notwithstanding, the condition of the creek has deteriorated over the past 20 years. The steep terrain has also made it difficult to manage this creek under the bushcare volunteer program. Subugal Gully has not been proactively managed by specialist bush regeneration contractors under Council's waterway rehabilitation program to date, however it has been identified as having a good potential for rehabilitation. Rehabilitation would involve targeting mature weed tree species, revegetation using native species, erosion and sediment control and improving pedestrian access. Rehabilitation would focus on five reaches located in the upper creek as shown bounded by the red marks in the figure below. Figure 1. site location and project area 2. PROJECT FRAMEWORK Council has adopted a logical framework approach in establishing this project to rehabilitate the upper reaches of Sabugal Gully. The project logframe is shown in the table below. Project Narrative Proposed Indicators Means of Verification Assumptions & Risks • Continued aquatic ecosystem health monitoring Goal: • Ecological health of the creek and surrounding bush land • Feedback from Bushcare volunteer • Reserve is continually maintained Attractive, self-sustaining and biodiverse creek and riparian corridor that is valued by the local community • Long term community satisfaction • Reporting from bush regeneration contractors • Customer responses Project Outcome / Purpose: • Biodiversity of native flora and fauna • Site assessment by Council staff • Understanding the key issues and processes To improve the ecological health of Sabugal Gully creek, riparian corridor and surrounding bushland • Short-term community satisfaction • Customer response • Managing residents' expectations Project Output: • Area of bush regeneration Weed removal, native planting and minor erosion control • % of reduction in week cover • Project management and reporting • Contractors can easily report on work completed • Length of rehabilitated waterway The overall goal that this project will contribute to is creating an attractive, self-sustaining and biodiverse creek and riparian corridor that is valued by the local community. This will help achieve Strategy 2.2 and 2.3 of the 2017-2021 Sutherland Shire Community Strategic Plan which are, respectively, to enhance and protect diverse natural habitats and to protect beaches, rivers and oceans. Indicators for this goal are shown in the above table and have been proposed in Council's Stormwater and Waterways Asset Management Plan (AMP) which has been prepared in accordance with the Integrated Planning and Reporting framework as mandated by the NSW Government. The indicators reflect both community and technical levels of service and have been developed using SMART criteria. Indicator metrics and target values will be developed as part of the Sutherland Shire Catchment and Waterway Management Strategy, currently in preparation, and through future updates to the AMP. The overall outcome of the project is to improve the ecological health of the creek and its riparian corridor. Specifically, this will encompass: * restoration of resilient and self-sustaining native bushland with good habitat values * minimal soil erosion * improved water quality and aquatic health * enhanced recreational values The proposed indicators for these outcomes are shown in the above table. 3. CREEK DESCRIPTION 3.1 Overview Sabugal Gully rises in the south near Orion Street and Woronora Road, Engadine and flows for approximately 750 m in a northerly direction through a mix of vegetated Crown land, Council land and unformed road reserve, before discharging into the Woronora River at The Needles. The creek receives stormwater runoff from a catchment that extends southwards towards Cooriengah Heights Road, Buckle Avenue and Tarcoola Place, Engadine. Runoff conveyed by Council's stormwater pit and pipe network contributes to erosion, weed infestation and poor water quality in the creek. The very upper reaches of the creek are particularly degraded as a result. The bushland reserve through which the creek passes and is well used by local residents and visitors for walking to The Needles on the Woronora River. There are multiple utility services traversing the reserve, the installation and maintenance of which has impacted on the quality of vegetation in the reserve. Bushcare volunteers have had a long association with the upper parts of the reserve, helping to control weeds and assist with bush regeneration. 3.2 Site Vegetation Vegetation within Sabugal Gully, its riparian corridor and surrounding reserve is typical coastal sandstone gully forest. This vegetation community is dominated by a 20-30 m high tree canopy with an average cover of 65%. Prominent tree species include Blackbutt Eucalyptus pilularis, Smooth-barked Apple Angophora costata, Sydney Peppermint Eucalyptus piperita and Cheese Tree Glochidion ferdinandi. The mid storey is open and contains a mixture of recruitment trees, shrubs and vines. Shrubs include Sydney Golden Wattle Acacia longifolia, Green Wattle Acacia parramattensis, Sunshine Wattle Acacia terminalis, Pine-leaf Geebung Persoonia pinifolia, Christmas Bush Ceratopetalum gummiferum, Coffee Bush Breynia oblongifolia, Pink Spider Plant Grevillea sericea, Needle Bush Hakea sericea and Gymea Lily Doryanthes excelsa. The ground stratum comprises of a diversity of ferns, grasses, herbaceous forbs and woody shrubs. Ferns are well represented by Soft Bracken Calochlaena dubia, Gristle Fern Blechnum cartilagineum, Harsh Ground Fern Hypolepis muellerii, Maiden Hair Fern Adiantum aethiopicum and Rasp Fem Doodia aspera. Other common groundcovers include Blady Grass lmperata cylindrica, Poa affinis, Kangaroo Grass Themeda australis, Blue Flax Lily Dianella caerulea var. producta, Schoenus melanostachys, Mat Rush Lomandra longifolia, Native Violet Viola hederacea and Scurvy Weed Commelina cyanea. Common vines include Morinda jasminoides, Snake Vine Stephania japonica and Native Sarsaparilla Smilax glyciphylla. The long term absence of fire since urbanisation and the increase in stormwater runoff has impacted the current vegetation community. There are fewer fire dependant species in the Fabaceae and Proteaceae families as well as a low diversity of wattles, peas and grevilleas. Conversely, there is an abundance of mesic species, grasses and ferns. Sweet Pittosporum undulatum is an example that is over represented. The quality of vegetation varies across the site. Generally vegetation condition varies in direct proportion to the width of the riparian zone. The immediate riparian zone has a greater presence of ferns and water dependant species such as Black Wattle Callicoma serratifolia, Straw Tree Fern Cyathea cooperi, Sweet Pittosporum undulatum, Sandpaper Fig Ficus coronata and Water Gum Tristaniopsis laurina. Weeds are mostly associated with the adjoining residential properties where species such as Fishbone Fem Nephrolepis cordifolia, Madeira Vine Anredera cordifolia and groundcovers including Tradescantia have spread across property boundaries into the reserve. 4. PROJECT APPROACH 4.1 Overview Council intends to engage a suitably qualified and experienced bush regeneration contractor to undertake bush regeneration works in Sabugal Gully. Works will involve a combination of vegetation management, soft landscaping and pedestrian access improvements in order to improve the overall environmental and recreational quality of the creek, its riparian corridor and surrounding bushland. The work area will extend from Woronora Road and Orion Street in the south to about 250 m downstream to the north, as shown in Figure 1 above. The key project activities and project scope is detailed below and will be confirmed prior to engaging suitable contractor. The contractor will be asked to quote for the works by identifying areas to be treated (most easily on a map supported by site photos), materials required, the number of staff required and the frequency of site visits based on the following general criteria below. 4.2 Weed Control Herbaceous weeds such as Fishbone Fern Nephrolepis cordifolia, Tradescantia fluminensis and Madeira Vine Anredera dominate the understorey vegetation at some locations and will need to be controlled. Weed control will involve the following work: * the work area is to be checked prior to treatment of weeds to identify and protect any indigenous species that may be present * herbaceous weed species are to be removed by a combination of hand tools, hand removal and foliar application of a Glyphosate herbicide used in accordance with the manufacturer's recommendations. * vines such as Madeira Vine Anredera cordifolia are to be treated by the 'stem scraping technique using undiluted Glyphosate herbicide * follow-up herbicide treatment is to be undertaken where necessary to assist with the control of persistent weeds * all weeds that have the potential to become propagules are to be bagged and removed from site Weed trees such as Willow Salix, Acer Negunda Variegatum, Large Leaved Privet Ligustrum Lucidum and weed vines require removal. All woody weeds trees that are identified for reimoval are to be cut close to ground and treated with undiluted Glyphasate herbicide using the cut and paint' technique. Stumps and roots are to be retained to assist with creek bank stabilisation. Logs may be dispersed discretely on site. 4.3 In-stream Clearing, Bank Stabilisation and Erosion Control The increase in impervious area in the upstream catchment has exacerbated the flows in the Creek during rainfall events. Where runoff enters the reserve it has incised a narrow channel in the upper reaches then deposited the sediment further downstream where the creek line has now been partially blocked. The contractor will be required to undertake instream clearing ta possibly widen the channel where practical ta slow the flow velocity and reduce erosion. Further, in-stream clearing will also include removal of tree logs and branches, and debris that block the flow. Some parts of the creek bank need minor stabilising works to reduce the potential for erosion. The installation of coir logs, coir mesh or other soft engineering works may be appropriate. Creek banks that become exposed following dense weed removal may also require stabilisation. Diverting flaws where there is bank undercutting or erosion across pedestrian tracks may require some minor soft engineering solutions. Fallen logs, small trees or large rocks within the creek may be repositioned to armour the bank toe and reduce bank erosion. Discretion will need to be exercised to ensure this work does not adversely impact on habitat. Some pedestrian tracks, such as sections below Glenfem Place, are also a source of erosion. These would benefit from the installation of intermittent steps constructed from sleepers or stone to reduce surface erosion. When considering bank stabilisation works contractors will need to provide an estimate of the type and quantity of products used, such as coir logs and matting, and the locations and approximate extent of where bank stabilisation or improvements to pathways is proposed. 4.4 Revegetation Following weed control works, revegetation will be undertaken to stabilise banks and cover bare areas. Erosion control matting and coir logs may be required in steep areas or where the contractor considers matting will suppress persistent weeds. There are some parts of the creek banks that would benefit from additional planting of sedges, grasses and small trees such as Black Wattle or Lilly Pilli. Additional areas beyond the top of bank provide space for revegetation to improve the vegetation in the riparian zone and surrounding bushland. Revegetation areas will need to be treated with herbicide if necessary before lightly mulching and planting with appropriate local species. Larger areas would benefit from temporary fencing to exclude deer. This can be discussed at the pre selection site meeting. The contractor will need to estimate the extent of revegetation that may be required and include any proposed revegetation into the schedule of works and costing. The following specifications for revegetation are to be incorporated: * species are to be selected that are indigenous to the local and surrounding plant communities, with good knowledge and observation skills of species on site being fundamental to plant selection * plants are to be costed as part of the project * Council will produce the plants, but species and numbers required will need to be confirmed as early as possible * plants will be supplied in forestry tube containers and are to be planted in a random fashion to replicate the natural distribution of species in bushland * Plants are to be marked by a bamboo stake to identify seedlings and reduce inadvertent damage when using herbicide during follow up maintenance 4.5. Debris Removal All litter and other foreign debris are to be removed from site. Dead and/or fallen trees should only be removed in they are a threat to pedestrians, hinder access and have little habitat value. 4.6 Maintenance The project will include follow-up maintenance for a period of 12 months after completion of rehabilitation phase of the project. Follow-up maintenance is to include: * suppression of any re-sprouting from trees that were removed * weed control * replacement of failed plants installed during revegetation * maintenance of soft engineering works such as coir logs or jute/coir matting. * • removal of any debris blocking creek flows at locations that could cause unacceptable flood impacts 4.7 Project Activities, Schedule and Estimated Cost The following table details the key project activities, estimated time to complete these activities and estimated cost of the proposed works. The table below also shows proposed measurable project outcomes. The project scope and scheduling will be confirmed prior to engaging a suitable contractor. The unit rates in the table below for various project activities are the average unit rates of similar works completed to date in the Shire. Key Project Activities Quality Unit rate Estimated hours Estimated Cost Measurable Outcomes Year 1 – Rehabilitation works • Area weeded and rehabilitated-10,000 m2 • % reduction in weed cover compared to overall area of the reserve - 20% • Site establishment (site induction, established photo points) 1 Item 20 $1,000 • length of waterway rehabilitated - 625 m • Ongoing fo!low up weeding will ensure a measurable reduction in weed cover in all areas. • Pest and Weed Information System (PWIS) will be utilised to record treatments and photographic point records. • initial herbaceous weed removal 1 ha $5,000 160 $5,000 • woody weed removal (include plant hire) 1 ha $15,000 320 $15,000 • in-stream clearing (include cost of excavation hire & plant operator) 625 m $16 50 $10,000 • bank stabilisation (include supply & install coir logs, jute mats, deer fence) 625 m $32 160 $20,000 • revegetation ( include supply & install tube stock, large potted trees & initial watering) 5000 plants (approx.) Item 192 $18,000 • Reporting 1 Item 20 $1,000 Year 1 sub-total 922 $70,000 Year 2 – Follow-up maintenance works • Weed control • Replacement of failed plants installed during revegetation. 18 visits $1667 per visit (approx.) 576 hrs $30,000 • Area maintained – 10,000 m2 • Minor erosion control works (Team of 4, 12 visits between September & March, and 6 visits between April & August • Removal or any debris blocking creek flows and debris in riparian zone. Year 2 sub-total 576 $30,000 TOTAL 1498 $100,000 The project currently include rehabilitation of 625m long waterway and around 1 hectare of bushland. The project can be easily scaled depending on the funding available. lf funding were to be reduced, the length of creek and area of bushland to be rehabilitated would simply be reduced starting from the furthest downstream reach. The length of waterway & area of bushland to be rehabilitated will be reduced and some of the reaches joining the creek such as SGWW004A will not be included. If funding were to be increased, the length of creek and area of bushland to be rehabilitated would be increased to accommodate more reaches such as remaining length of SGWW005, 06 & 07 and extend the area of bushland to be rehabilitated accordingly. The figure below shows the area of extent with reduced and increased funding. 4.9 Project Management Council will manage the project from inception to completion. A project working group comprising Council staff from various units will be established to monitor project progress. Council will prepare the project brief, request and evaluate quotes, and engage a suitable bush regeneration contractor. Council will also prepare a Review of Environmental Factors that will be provided to the contractor as a basis for preparing its own environmental management plan for the works. Council will also prepare a communication action plan outlining how Council and the contractor will engage with the local community and promote the project. 4.10 Ongoing Site Management Council will continue site maintenance after completion of follow-up maintenance in the second year of the project. Maintenance will be undertaken as part of Council's ongoing waterway maintenance program and bushcare volunteer program. Maintenance will continue to focus on weed removal and ensuring that native plants are thriving. This could involve an expenditure of up to $30,000 p.a. depending on the ecological condition of the creek. The success of the initial project work and ongoing maintenance will continue to be monitored using the indicators discussed in Section 2. APPENDIX A-SABUGAL GULLY, ENGADINE, WATERCOURSE ASSESSMENT Annexure B – Terms of Publication Notice Sydney Water Corporation Convicted of Offences After Overflow of Raw Sewage into an Unnamed Creek at Bangor Sydney Water Corporation was prosecuted by the Environment Protection Authority ("EPA") for one offence of contravening its environment protection licence ("EPL") and one offence of failing to adequately clean up an overflow of approximately 57,000 litres of raw sewage into an unnamed creek at Bangor near Sutherland, NSW. Sydney Water pleaded guilty to each charge. On 14 September 2018 a tree root caused a blockage in a sewer pipeline located in bushland causing raw sewage to flow from a maintenance hole in the pipeline into and through bushland down an unnamed creek and towards the Woronora River. Sydney Water was required by its EPL and the clean-up notice to take all reasonable and feasible actions as soon as practicable to minimise the impact of the overflow but failed to do so. Sydney Water employees were assigned to clean up the overflowed sewage. Instead of first removing the raw sewage remaining on and in the bushland and creek, Sydney Water washed the raw sewage into the unnamed creek. Due to failures in Sydney Water's instructions and communication the clean-up of the raw sewage in Bangor was not completed for more than four weeks, that is,19 October 2018. The failure to take all reasonable and feasible actions as soon as practicable to clean up the raw sewage meant that the harm to the environment from the overflow was not mitigated as required, and likely permitted the ongoing pollution of the unnamed creek and the aquatic environment. On 28 January 2021, the Land and Environment Court of NSW convicted Sydney Water of the offences and ordered Sydney Water to: 1. pay a total monetary penalty of $185,000 for the commission of both offences, including $100,000 to be paid to Sutherland Shire Council for the Watercourse Rehabilitation and Bush Regeneration Project at Sabugal Gully, Engadine; 2. pay $10,758 to the EPA for the EPA's investigation costs; 3. pay the EPA's legal costs; 4. cause this notice to be published; and 5. cause similar notices to be published and pinned on Sydney Water Corporation's Facebook and Instagram accounts. Annexure C – Photograph Amendments 02 February 2021 - paragraph [6] - changed "Conditions" to "Condition" paragraph [115] and Annexure C - formatting corrections DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 February 2021