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

Land and Environment Court New South Wales

Medium Neutral Citation: Environment Protection Authority v Sydney Water (No 2) [2023] NSWLEC 2 Hearing dates: 5 December 2022 Date of orders: 1 February 2023 Decision date: 01 February 2023 Jurisdiction: Class 5 Before: Moore J Decision: See orders at [147] Catchwords: SENTENCE ‑ charge of pollute waters ‑ overflow of sewage pumping station caused during repair of split rising main ‑ overflow of untreated sewage from pumping station into waterway ‑ Defendant convicted after trial on "not guilty" plea ‑ consideration of the extent of the environmental harm caused by the offending conduct - the offending conduct to be characterised as being toward but not at the lowest end of the low range of offending conduct - consideration of the appropriate starting penalty - a proposal that portion of the appropriate starting penalty be diverted to a local environmental project in the vicinity of the location where the pollution incident occurred - appropriate to order funding contribution for the environmental project - appropriate to order publication of a notice in the Daily Telegraph for educative and deterrence purposes - appropriate to order letter of apology signed by the Defendant's Managing Director to occupants of residences potentially adversely impacted by the additional pollution for which the Defendant has been convicted - no valid reason why the Defendant should not be ordered to pay the Prosecutor's costs of the proceedings with any dispute as to how those costs were to be disentangled from the overall costs of the liability proceedings to be addressed through a conventional costs assessment process - total monetary penalty of $200,000 of which $45,000 is to be paid to Fairfield City Council as a contribution toward the cost of the Quest Avenue Vegetation Swale Project proposed to be undertaken by that Council - a moiety of the residue of the financial penalty (being 50% of $155,000) to be paid to the Prosecutor pursuant to s 122 (2) of the Fines Act 1996 Legislation Cited: Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A and 22 Criminal Procedure Act 1986, ss 257B and 257G Fines Act 1996, s 122 Protection of the Environment Operations Act 1997 Cases Cited: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Budvalt Pty Ltd v Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2022] NSWCCA 9 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Chief Executive of the Office of Environment and Heritage v Bombala Investments Pty Ltd (2013) 199 LGERA 236; [2013] NSWLEC 185 Chief Executive, Office of Environment and Heritage v Ausgrid (2013) 199 LGERA 1; [2013] NSWLEC 51 Environment Protection Authority v Australian Waste Recyclers 1 Pty Ltd [2005] NSWLEC 739 Environment Protection Authority v Barnes (2006) NSWCCA 246 Environment Protection Authority v Cleanaway Equipment Services Pty Ltd [2022] NSWLEC 40 Environment Protection Authority v Forbes Shire Council [2014] NSWLEC 26 Environment Protection Authority v Hawkesbury City Council [2017] NSWLEC 39 Environment Protection Authority v Sydney Water [2022] NSWLEC 100 Environment Protection Authority v Sydney Water Corporation [2015] NSWLEC 80 Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 Environment Protection Authority v Sydney Water Corporation [2020] NSWLEC 153 Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 4 Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 17 Environment Protection Authority v Timber Industries Ltd [2001] NSWLEC 25 Environment Protection Authority v Unomedical Pty Limited (No 4) [2011] NSWLEC 131 Environment Protection Authority v Waste Recycling and Processing Company (2006) 148 LGERA 299; [2006] NSWLEC 419 Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 Markarian v R (2005) 229 CLR 357; [2005] HCA 25 Mohindra v R [2020] NSWCCA 340 Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178 R v O'Neill (1979) 2 NSWLR 582 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 383 Secretary, Department of Planning, Industry and Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Walden v Hensler (1987)163 CLR 561; [1987] HCA 54 Category: Sentence Parties: Environment Protection Authority (Prosecutor) Sydney Water Corporation (Defendant) Representation: Counsel: Mr E Muston SC/Mr R Ranken, barrister (Prosecutor) Ms s Hall SC (Defendant)