Environment Protection Authority v Sydney Water [2022] NSWLEC 100

Land and Environment Court New South Wales

Medium Neutral Citation: Environment Protection Authority v Sydney Water [2022] NSWLEC 100 Hearing dates: 30 and 31 August; 1, 3, 7 and 14 to 17 September and 16 December 2021; written submissions 15 and 16 December and further written submissions 4 and 11 March 2022 Date of orders: 11 August 2022 Decision date: 11 August 2022 Jurisdiction: Class 5 Before: Moore J Decision: See directions in Matter No 11340 0f 2020 at [551]; orders in Matter No 11341 of 2020 at [552] and orders in Matter 11342 of 2020 at [553]. Catchwords: PROSECUTION - charge of pollute waters - split in sewer rising main - Defendant relies on statutory defence pursuant to s 122 of the Protection of the Environment Operations Act 1997 (the POEO Act) - consideration of conditions of the Defendant's environment protection licence (the EPL) - consideration of whether the facts, in conjunction with the EPL conditions, establish the statutory defence - statutory defence established - alternative defence of honest and reasonable mistake of fact also raised - alternative defence also established - Defendant to be found not guilty of rising main offence - Prosecutor's application to consider findings on defences before entering any orders for acquittal - rising main offence proceedings adjourned to permit Prosecutor to consider findings PROSECUTION - charge of pollute waters - overflow of sewage pumping station caused during repair of split rising main - overflow of untreated sewage from pumping station into waterway - Defendant raises defence of necessity - Defendant proposes that defence is not confined to circumstances of immediate and irreparable harm to human health or life - expansive approach to defence of necessity rejected - Defendant relies on evidence establishing belief held by relevant employees of immediate and irreparable risk of harm to human health or life - evidence does not establish the existence of such a belief - defence of necessity not established - Defendant convicted of pumping station charge - matter adjourned to permit setting down of, and directions for preparation for, sentencing hearing PROSECUTION- charge of breach of EPL condition - alleged failure to maintain equipment - failure to divert sewage from pumping station serving the split rising main - charge that Defendant failed to maintain the valve that would have permitted the diversion of sewage - Defendant concedes failure to operate the valve but submits that valve had been maintained - Defendant presses "wrong charge" defence on the basis that the charge was founded on the wrong element in the condition of the Defendant's EPL - evidence establishes operator error and not failure to maintain - Defendant found not guilty and acquitted Legislation Cited: Crimes (Appeal and Review) Act 2001, s 52 Criminal Appeal Act 1912, s 5AE(1) Criminal Procedure Act 1986, s 160(2) Evidence Act 1995, s 187 Inclosed Lands Protection Act 1901, s 4B(1)(a) Local Government (Approvals) Regulation 1999 Protection of the Environment Operations Act 1997, ss 64(1), 120(1), 122 and 169C Cases Cited: Bartter Enterprises Pty Ltd v Environment Protection Authority [2022] NSWCCA 43 Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority [2021] NSWLEC 92 Environment Protection Authority v Bartter (No 3) [2020] NSWLEC 114 Environment Protection Authority v Charlotte Pass Snow Resort Pty Ltd [2021] NSWLEC 37 Environment Protection Authority v Queanbeyan City Council [2010] NSWLEC 237 Environment Protection Authority v Sydney Water Corporation [1998] NSWLEC 144 Environment Protection Authority v Sydney Water Corporation [2020] NSWLEC 153 Environment Protection Authority v Unomedical Pty Limited (No 3) (2010) 79 NSWLR 236; [2010] NSWLEC 198 Environment Protection Authority v Wollondilly Abattoirs Pty Limited & Davis [2019] NSWCCA 312 Lopes v Cook [2020] NSWSC 1776 Minister for the Environment v Sharma [2022] FCAFC 35 Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 Plaintiff S297-2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179 Proudman v Dayman (1941) 67 CLR 536 Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560 Taiapa v The Queen (2009) 240 CLR 95; (2009) 214 A Crim R 486; (2010) 261 ALR 488; [2009] HCA 53 Veira v Cook [2021] NSWCA 302 Williams v The Queen (1978) 140 CLR 591 Environment Protection Authority v Australian Iron and Steel (1992) 28 NSWLR 502 Category: Principal judgment Parties: Environment Protection Authority (Prosecutor) Sydney Water (Defendant) Representation: Counsel: Mr D Buchanan SC/Mr R Ranken and Ms S Constable, barristers (Prosecutor) Mr I Hemmings SC/Ms S Hall, barrister (Defendant)