Land and Environment Court of New South Wales CITATION : Environment Protection Authority v Queanbeyan City Council [2010] NSWLEC 237 PROSECUTOR Environment Protection Authority PARTIES : DEFENDANT Queanbeyan City Council FILE NUMBER(S) : 50080 of 2008 CORAM: Pepper J KEY ISSUES: CRIMINAL LAW :- whether a prosecution for water pollution caused by the unintentional discharge of sewage should be premanently stayed because of a refusal by the regulatory authority to issue an environment protection licence - whether the licence was required to be issued - whether had the licence been issued the defendant would have been afforded a statutory defence to a strict liability offence - whether if the proceedings continued they would be unfair - whether the public interest in permitting the prosecution to proceed outweighed any unfairness - permanent stay refused LEGISLATION CITED: Evidence Act 1995 s 136 Protection of the Environment Operations Act 1997 ss 42, 43, 45, 48, 53, 63(2), 120(1), 122, 123, 287 ADI Ltd v Environment Protection Authority [2000] NSWCCA 333; 118 A Crim R 335 Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Director-General, Department of Environment and Climate Change v Gleeson; Director-General, Department of Environment and Climate Change v Epacris Pty Ltd [2009] NSWLEC 42; (2009) 165 LGERA 99 Dupas v R [2010] HCA 20; (2010) 267 ALR 1 Grey v R [2001] HCA 65; (2001) 184 ALR 593 Jago v District Court (NSW) (1989) 168 CLR 23 CASES CITED: Kirk v Industrial Court (NSW) [2010] HCA 1; (2009) 239 CLR 531 Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210 Mraz v R (1955) 93 CLR 493 R v Edwards [2009] HCA 20; (2009) 255 ALR 399 R v Glennon (1992) 173 CLR 592 R v Ulman-Naruniec [2003] SASC 437; (2003) 143 A Crim R 531 Walton v Gardiner (1993) 177 CLR 378 Wilde v R (1988) 164 CLR 365 Wilson v State Rail Authority of New South Wales [2010] NSWCA 198 DATES OF HEARING: 24-27 August 2009 DATE OF JUDGMENT: 21 December 2010 PROSECUTOR Mr J Glissan QC with Ms G Preston SOLICITORS Department of Environment and Climate Change LEGAL REPRESENTATIVES: DEFENDANT Mr R McIlwaine SC with Mr T To SOLICITORS Herring & Associates JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES PEPPER J 21 December 2010 50080 of 2008 Environment Protection Authority v Queanbeyan City Council JUDGMENT Introduction 1 HER HONOUR: Queanbeyan City Council ("the council"), has been charged with an offence of polluting waters in contravention of s 120(1) of the Protection of the Environment Operations Act 1997 ("the Act"). The council has pleaded not guilty. 2 By notice of motion filed 22 July 2009, the council seeks a permanent stay of the prosecution on the basis that the proceedings are an abuse of process because the conduct of the prosecutor, the Environment Protection Authority ("the EPA"), in not issuing an environment protection licence under the Act ("the licence") deprived the council of the opportunity to avail itself of the only statutory defence provided to the charge. 3 I have determined that a stay ought not to be granted and the notice of motion should be dismissed. Regulatory Framework 4 It is convenient to first turn to the statutory framework giving rise to both the offence and the application for a permanent stay. The current version of the Act differs little from the version in force at the time of the commission of the alleged offence, except with respect to the definition in Sch 1 of "sewage treatment systems". 5 Section 120 of the Act stated: 120 Prohibition of pollution of waters (1) A person who pollutes any waters is guilty of an offence. (2) In this section: " pollute " waters includes cause or permit any waters to be polluted. 6 Plainly the offence created was one of strict liability. 7 Section 122 of the Act provided the following defence: 122 Defence of authority conferred by licence It is a defence in proceedings against a person for an offence under this Part if the person establishes that: (a) the pollution was regulated by an environment protection licence held by the person or another person, and (b) the conditions to which that licence was subject relating to the pollution of waters were not contravened. 8 Chapter 3 of the Act dealt with the issuing of licences. A licence may be issued by the EPA to carry out an activity that would otherwise constitute a breach of the Act (s 42). A licence is mandatory to carry out any of the activities listed in Sch 1 (s 43(a)-(c)) and to carry out certain non-scheduled activities, including those for the purpose of regulating water pollution resulting from any such activity, as referred to in section 122 (s 43(d)). That is to say, the carrying out of these activities absent a licence will result in a breach of the Act and the commission of an offence. 9 The operation of "sewage treatment systems" was, at the relevant time, listed as an activity in Sch 1 for which the occupier of the premises at which the activity was carried out was required to hold a licence. The term "sewage treatment systems" was defined as: Sewage treatment systems (including the treatment works, pumping stations, sewage overflow structures and the reticulation system) that have an intended processing capacity of more than 2,500 persons equivalent capacity or 750 kilolitres per day and that involve the discharge or likely discharge of wastes or by-products to land or waters. 10 In determining whether a licence should be granted the EPA must consider the matters listed in s 45 of the Act if they are relevant. Specifically, the EPA is required to take into consideration: 45 Matters to be taken into consideration in licensing functions In exercising its functions under this Chapter, the appropriate regulatory authority is required to take into consideration such of the following matters as are of relevance: (a) any protection of the environment policies, (b) the objectives of the EPA as referred to in section 6 of the Protection of the Environment Administration Act 1991 , (c) the pollution caused or likely to be caused by the carrying out of the activity or work concerned and the likely impact of that pollution on the environment, (d) the practical measures that could be taken: (i) to prevent, control, abate or mitigate that pollution, and (ii) to protect the environment from harm as a result of that pollution, (e) any relevant green offset scheme, green offset works or tradeable emission scheme or other scheme involving economic measures, as referred to in Part 9.3, (f) whether the person concerned is a fit and proper person (as referred to in section 83), (f1) in relation to an activity or work that causes, is likely to cause or has caused water pollution: (i) the environmental values of water affected by the activity or work, and (ii) the practical measures that could be taken to restore or maintain those environmental values, (g) in connection with a licence application relating to the control of the carrying out of non-scheduled activities for the purpose of regulating water pollution—whether the applicant is the appropriate person to hold the licence having regard to the role of the applicant in connection with the carrying out of those activities, … 11 Section 48 provided: 48 Licensing requirement—scheduled activities (premises-based) (1) Application of section This section applies to scheduled activities where Schedule 1 indicates that a licence is required for premises at which the activity is carried on. (2) Offence A person who is the occupier of any premises at which any such scheduled activity is carried on is guilty of an offence, unless the person is, at the time that activity is carried on, the holder of a licence that authorises that activity to be carried on at those premises. 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, or (b) in the case of an individual—$250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues. 12 Any person carrying out a scheduled activity must, or if carrying on a non-scheduled activity may, apply for a licence (s 53 of the Act). An applicant can appeal a decision to refuse a licence to the Court (s 287 of the Act). 13 No licence may be granted which contains a condition if compliance with the condition would result in a breach of a requirement made by or under the Act (s 63(2)). Background Facts 14 The central facts giving rise to the charge pursuant to s 120 of the Act and this application are not in dispute. In short, on 4 and 5 November 2007 sewage was discharged from an overflow outlet situated in Waniassa Street, Queanbeyan, which was operated and controlled by the council. The sewage entered the Queanbeyan River and travelled downstream. 15 However, in order to properly understand the submissions of both parties and the determination of the Court, regard must be had, in some detail, to the factual background giving rise to the incident. 16 The council operates a sewage treatment system serving the population of Queanbeyan, which in 2006 was approximately 36,000. 17 The system consists of a sewage treatment plant located at Oak's Estate in the Australian Capital Territory ("the ACT") and 15 sewage pumping stations and a reticulation network of sewerage pipes all located in Queanbeyan. 18 One of the sewage pumping stations is located at Morisset Street near the Queanbeyan River. The river flows into the Molonglo River and to Lake Burley Griffin in Canberra. 19 Sewage is pumped at the Morisset Street sewage pumping station to the treatment plant in the ACT. The treatment plant in the ACT is subject to a licence issued by the ACT. The only authorised discharge point for treated sewage is in the ACT. 20 In response to a request from the EPA dated 18 July 2000, on 15 September 2000, the council wrote to the EPA nominating the premises it operated at which potentially polluting activities were carried out that it believed may require licensing under the new licensing regime that was coming into effect. The Morisset Street sewage pumping station was not one of premises listed. 21 At no time has the council ever applied for a licence in relation to any activity associated with that sewage pumping station. 22 At the time the council had in its possession a copy of 1997 Guidelines for the Approval and Licensing of Sewer Overflows ("the 1997 Guidelines"). The 1997 Guidelines stated that: …it is acceptable practice to provide overflow points in a system so as to prevent uncontrolled discharges of storm sewage, particularly from manholes and house service fittings. Such overflow points also serve as relief points under emergency situations should breakdowns occur in the sewerage system during dry weather conditions. Sewers occasionally collapse or choke and pumping stations are subject to breakdown, usually due to electrical supply failure or mechanical/electrical equipment failure. 23 On 3 November 2000, the EPA sent a letter to the council advising the passage of the Act and enclosing a copy of Guide to Licensing under the Protection of the Environment Operations Act. The letter requested the council to consider whether it required a licence under the new legislation to carry out any of its existing activities. 24 On 15 December 2000, the council responded stating that the carrying out of its waste minimisation centre, did not require a licence as it was not engaged in a scheduled activity. In particular, it was not "a waste storage, transfer, operating or processing facility (34(d))" because the quantity of materials transferred and processed was approximately 6,000 to 7,000 tonnes per year which did not exceed the threshold set for this type of activity to become scheduled. 25 In February 2001, GHD Management Engineering Environment ("GHD") provided the council with a report it had been commissioned by the council to prepare on the design, documentation, tender and construction phases of augmentation to the Morisset Street pumping station (the Morisset Street Sewage Pumping Station Augmentation report). The report stated that the project "has been initiated by a need to comply with the emergency storage requirement of four (4) hours of Average Dry Weather Flow" as determined by the EPA. At the time the wet well storage was only 64 minutes. The report noted that no licensed emergency overflow relief was provided at the pump station. Construction of the augmentation system was to be completed by March 2001. 26 Another pumping station was, and is, located in a park at the end of Blundell Street, Queanbeyan. On 22 January 2003, the council wrote to the EPA seeking approval for the construction of the Blundell Street sewage pumping station, which had sewer surcharge (or discharge) problems. 27 A component of the Blundell Street sewage pumping station was a proposed four hour storage capacity and an overflow pipe from the pump well. The pipe directed stormwater and untreated sewage that exceeded the capacity of the pumping station to a stormwater gully located at the corner of Blundell Park and Blundell Street. The stormwater gully led to the Queanbeyan River. 28 In response to the request for the approval the EPA stated in its reply dated 31 January 2003 (emphasis added): With the implementation of the Protection of the Environment Operations Act 1997, the EPA's role in approving sewage pumping stations has changed considerably in both a policy and statutory perspective. The EPA now requires that certain environmental outcomes be met, rather than prescribing specific engineering design criteria. Accordingly, in this instance, the engineering design of the pump station should take into consideration any potential impact caused by the operation of the station on any Water Quality Objectives which may apply to the Queanbeyan River Catchment. … The Queanbeyan Sewage Treatment Plant and Sewerage Reticulation are not licensed by the EPA because the treatment plant itself is located in the Australian Capital Territory. Accordingly, operational standards cannot be applied as license conditions. However, the general provisions of the Protection of the Environment Operations Act 1997 concerning the protection of waters still apply to the sewerage reticulation system in NSW. Furthermore, the EPA is the Appropriate Regulatory Authority under the Protection of the Environment Operations Act 1997, in respect to pollution emanating from the reticulation system and has the statutory powers to remedy any incident. In addition, the Local Government (Approvals) Regulation 1999 specifies performance standards that must be met. These standards include preventing the spread of disease, the contamination of water and the degradation of soil and vegetation and they specify that these facilities must not discharge effluent into any water course . 29 The Blundell Street sewage pumping station was constructed and no environment protection licence was issued by the EPA. 30 In July 2003 the EPA published Licensing Guidelines for Sewage Treatment Systems ("the 2003 Guidelines"). The 2003 Guidelines were stated to: Have been prepared by the NSW Environment Protection Authority (EPA) to help licensees in non-metropolitan areas, generally local councils and other water authorities, understand the new process for licensing whole sewage treatment systems. The document explains: what sewage treatment system licenses are the potential impacts of sewer overflows on public health and the environment the EPA's approach to sewer overflow management and licensing techniques to minimise sewer overflows 31 The Guidelines went on to state (emphasis added): Under the previous licensing regime only sewage treatment plants were licensed. However now licences regulate the whole sewage treatment system, including the treatment plant(s) and all associated components of the reticulation system under the licensee's management or control, such as pipes, access chambers, pumping stations, overflow structures and ejection units. The licences regulate both sewage treatment plant discharges and discharges (overflows) from the sewage reticulation system. 32 The 2003 Guidelines defined sewer overflows as "releases onto streets and into waterways" which "may come from designed overflow structures, access chambers (otherwise known as manholes), sewage pumping stations, pipes and sewage treatment plants. Sewer overflows can occur in both dry and wet weather." 33 The Guidelines noted that: Sewerage systems commonly have designed overflow points. These act as safety valves to stop sewage backing up into homes and businesses when a sewer is overloaded, a pipe is blocked or there is a problem at a pumping station. Designed overflows generally allow sewage to discharge at a planned location, usually the nearest natural waterway or stormwater drain. The EPA has developed a model licence for sewage treatment systems, which will control the discharge of untreated or partially treated to the environment, whether from a designed overflow point or elsewhere in the system. In this context, therefore, 'sewer overflow' is used to describe discharges from both sources. The model licence will be available on the EPA website. 34 In relation to Condition O2 the 2003 Guidelines stated that: The 'premises', as described by Condition A2 in licences, has been extended to include the reticulation system owned and operated by the licensee. As a result, the requirements relating to proper and efficient operation and maintenance of plant and equipment (Condition O2) covers both the sewage treatment plant and the reticulation system, including pumping stations, sewers and overflow points. 35 Under the heading "Sewage treatment system licences", in relation to sewage "Reticulation system licence conditions" the 2003 Guidelines provided that: In some cases special sewage management arrangements are made with regard to ownership and operation of a system or parts of a system. These may make it unclear whether the system, or parts of the system, is covered by the licence. Any concerns about this should be discussed with the EPA at the time the licence is being varied. Condition L1.3: The EPA recognises that there are conditions under which a sewage overflow may be difficult to avoid. The system licence acknowledges this in Condition L1.3 which allows for some overflows to occur, provided all conditions of the licence, including those relating to operation and maintenance, have been met. 36 A copy of the 2003 Guidelines was given by the EPA to the council on 26 May 2004. The Morisset Street Sewage Pumping Station 37 The Morisset Street sewage pumping station that existed at the time of the incident was constructed in the late 1930s. It has subsequently been demolished and replaced with a new pumping station in 2008 and 2009. 38 At the time, in the event that the Morisset Street sewage pumping system pumps failed, the sewerage holding system for that pumping station was designed to store untreated sewage for a limited time before the holding system and the overflow pit filled to capacity and subsequently overflowed. There was no other sewage overflow outlet for that station. The time needed to fill the holding pipe system and overflow pit varied depending on the amount, type and flow rate of sewage coming into the system and the influx of stormwater. 39 Owing to limitations and the capacity of the rising main and the available power supply, only one of the two pumps installed at the Morisset St sewage pumping station could be operated at any one time. The First Prevention Notice 40 On 3 December 2003 and 9 April 2004, there were discharges of untreated sewage from the Queanbeyan sewerage reticulation system at various points in the Riverside Caravan Park in Morisset Street. The sewage entered the stormwater system and flowed into the Queanbeyan River. 41 Accordingly, on 28 May 2004 the EPA issued the council with a prevention notice pursuant to s 96 of the Act ("the first prevention notice") directing it to prepare a report documenting the history of the sewage overflows at the Riverside Caravan Park from December 2003 to April 2004. The notice also directed the council to prepare a report to assess the sewerage reticulation system in the area including the Morisset Street sewage pump station. The report was to be submitted to the council by 6 August 2004. 42 On 12 and 21 July 2004, the council responded noting that it had commissioned numerous consultant reports on the station and that the augmentation of the sewer pump station had been programmed for that financial year. 43 On 11 October 2004, Environment ACT issued an environmental authorisation under the Environment Protection Act 1997 (ACT) to the council to conduct "sewage treatment at Queanbeyan Sewage Treatment Plant" which was "the treatment and discharge of treated effluent from Block 2087 Oaks Estate to the Molonglo River". 44 On 13 December 2004, this time frame was repeated by the council in correspondence with the EPA. Further details were given of the augmentation works which included the installation of an emergency storage tank with a capacity to hold four hours average dry weather flow. The upgrade was estimated to cost approximately $2 million. 45 On 3 August 2005, there was another overflow incident at the caravan park caused by a failure at the Morisset Street pump station. 46 On 9 September 2005, the council responded by letter to an earlier request from the Department of Environment and Conservation to provide information and records. The letter noted that due to a surcharge on 3 September 2005 (that did not result in an overflow) the council had conducted a risk assessment of the pump station infrastructure at the Morisset Street pumping station and would purchase a third pump. 47 On 15 February 2006, there was an additional overflow incident at the caravan park with the overflow entering the Queanbeyan River. A report to the EPA from the council referred to the council's intention to resolve "issues with the Morissett Street Pump Station retention times" by the augmentation of the pump station. The Second Prevention Notice 48 On 28 February 2006, after the discharge on 15 February 2006 of an estimated 15,000 litres of effluent, the EPA issued a prevention notice which was varied on 1 March 2006 ("the second prevention notice"). Relevantly, and as varied, the prevention notice required the council to: (a) investigate and identify "the most appropriate surcharge location". That is to say, the most appropriate location for an overflow structure; and (b) to produce and provide to the EPA a Surcharge Investigation Report identifying the "most appropriate surcharge location" and providing "a schedule of works to implement the preferred surcharge location as identified" by 21 April 2006. 49 On 16 March 2006, the council wrote to Mr David Bell at the EPA in the following terms: Following a short discussion with Mr. C. Jones of your office, I write to you seeking clarification on an item contained in a report prepared by one of Queanbeyan City Councils Staff. The report was prepared as a response to a series of "Questions on Notice" on the Morisett Street sewage pump station, and presented at Councils meeting of the 15 th March. A section of the report reads as follows:- "Measures to install devices on sewer lines to ensure that any sewage overflows occur at strategic locations up until now has not been approved by the EPA. Recent advice in the last two weeks has indicated that this attitude has changed and the EPA is prepared to allow these control points . What this means is that storage tanks will be investigated and installed near the caravan park. In the event of a large storm and if the sewer line should overflow it will occur at a location where the overflow will be captured in a large tank and stored, then pumped back into the sewage line after the stormflows have dissipated". This section suggests that Council has approached the EPA before for authority to install "control devices" but was refused. Can you please provide me with the reasons why the EPA did not approve these devices in the past, and what are the circumstances under which it now has a "change of attitude". 50 On 24 March 2006, a meeting took place between Mr Stephen Howard and Mr Greg Chapman of the council and several officers of what was then the Department of Environment and Conservation ("DEC"). The purpose of the meeting was to discuss the recurring problem of sewage overflows to the Riverside Caravan Park into the Queanbeyan River and to discuss what steps the council proposed to take to prevent further incidents of discharge. The meeting notes indicate that Mr Bell stated that the EPA was not an approval body and that it would be relying on the council "to provide the necessary information on the new system". 51 In a letter dated 4 April 2006, Mr Bell replied to the council's correspondence of 16 March 2006, in the following terms: I confirm that there has been no change in the Environment Protection Authority's (EPA) approach to the regulation of effluent discharges in the vicinity of the Morisset Street pump station. However, the EPA has, by way of a Prevention Notice served on Queanbeyan Council on 1 March 2006, sought to ensure that action is taken to address the problems with the sewer system at this location. It is important to note that the EPA does not have an approval role the any works or activities undertaken by Council to construct, operate and maintain the sewer system. However, the EPA administers the Protection of the Environment Operations Act 1997 (POEO Act), and accordingly, regulates Council's activities. This includes enforcing the provisions of the POEO Act. It is in this context that the EPA has served the Prevention Notice. There have been many discussions between EPA and Council officers in recent years about how to address the problems with the sewer system at and near the Morisset Street pump station and how to prevent the various discharges of effluent in the vicinity. Nothing the that EPA has not and does not now have an approval role, it is not clear what the words "…has not been approved by the EPA…" refer to. As the operator of the sewer system, it is Council's responsibility to ensure that sewage is not discharged from the system other than in extreme weather events and that any such overflows are minimised by reducing infiltration of stormwater, provision of adequate infrastructure and appropriate management. Overflows in extreme circumstances should also be managed to minimise impacts on human health and the environment. Sewage should never be discharged under dry whether conditions. 52 The council identified a location between Morisset Street and Waniassa Street as the most appropriate surcharge location for an underground retention system that was to: …have a capacity of 24.8 m 3 or 24800 litres and constructed of four 1800 mm diameter concrete pipes laid horizontally in the ground with a 450 mm concrete diameter pipe surcharging into an earth bund. 53 In compliance with the second prevention notice, Mr Howard, an engineer with the council, wrote a letter received by DEC on 21 April 2006 enclosing the following three reports: (a) Morissett Street Sewage Pumping Station Augmentation: Preliminary Sketch Plan (PSP) Report (Rev 1). The report was prepared by GHD and dated February 2001; (b) Queanbeyan City Council Sewer Monitoring: Inflow & Infiltration Study, by Ecowise Environmental Ltd dated 2001; and (c) Morissett Street Sewage Pumping Station Upgrade Design: Final Design Report, by SKM dated August 2005. 54 The letter and the enclosed reports detailed the steps that the council intended to implement in order to augment the Morissett Street sewage pump station capacity. The Third Prevention Notice 55 On receipt of the letter and reports, the EPA issued a third prevention notice ("the third prevention notice") on 16 May 2006. The third prevention notice directed the council to install an underground retention system and earth bund in accordance with the reports received by the EPA on 21 April 2006, by 7 July 2006. A report confirming installation was to be provided by the council to the EPA by 21 July 2006. 56 The prevention notices were issued pursuant to the power conferred on the prosecutor under s 96 of the Act. Then, as is now, a failure to comply with a prevention notice was a criminal offence. As at the date of the third prevention notice, the offence carried a maximum fine of $1,000,000 with a further maximum penalty of $120,000 per day for a continuing offence (s 97 of the Act). 57 The council complied with the third prevention notice and installed the overflow structure in Waniassa Street. It reported the installation to the EPA on 21 July 2006. 58 As installed, the structure comprised a series of five concrete pipes installed under the surface of the park to provide storage capacity. These pipes were connected to an overflow chamber that was covered by an open steel grate. The grate was situated adjacent to the bund, approximately 10-15 m away from the Queanbeyan River. The land falls away from the grate to the River. It is from this overflow structure in Waniassa Street that the discharge to the Queanbeyan River, the subject of the prosecution, occurred. 59 After the construction of the overflow structure at Waniassa Street, there was a meeting between the EPA and the council on 5 October 2006 to discuss the future management of the council's sewer reticulation system. As summarised in an email from the council to the EPA dated 7 November 2006, at the meeting it was stated and the council understood that no licence was required for the council's sewerage reticulation system in New South Wales "due to an anomaly of the sewer discharge occurring from Council's sewer treatment plant within the Australian Capital Territory". The Fourth Prevention Notice 60 On 6 October 2006, the EPA issued another prevention notice ("the fourth prevention notice"). Under this fourth notice the EPA required the council to prepare a maintenance and inspection plan to reduce effluent surcharges from the entire sewerage system, to record all overflows and to provide the EPA with an annual system performance report. The maintenance plan had to include, amongst other things: proactive maintenance activities in known problem areas in the system; maintenance of sewage pumping stations; and responses to overflows, chokes, sewage pumping station failures and offensive odour incidents. 61 The fourth prevention notice expressly stated that its intended purpose was to "ensure consistency with other systems that hold an EPL [environment protection licence]". The fourth notice also stated that the council's sewerage treatment system did "not require an EPL under the Protection of the Environment Operations Act 1997. However the DEC has designed strategies to ensure the best practice management of the System and to ensure consistency with other systems that hold an EPL." 62 On 28 February 2007, the council sent to the EPA as directed by the fourth prevention notice, a copy of its Maintenance Management Plan Sewage Services. The Telemetry System and High Water Alarm 63 The system at Morisset Street pumping station was designed so that if the pumps failed, the level of sewage within the station would rise, triggering inbuilt alarms in the following manner. 64 The station was monitored by a telemetry system supplied by Rad-Tel Systems Pty Limited ("Rad-Tel"). The system was installed in the early 1990s and while some components have been upgraded over the past two decades most were still original. 65 The telemetry system is an alarm system that initiates an alert by radio signal to the council computer located at the station. This alert flashes on the council's computer system until the problem is resolved. If the operator does not clear the alarm, the computer sends an SMS text message to the mobile telephone held by the council's on-call Water and Sewer Supervisor. Employees of the council are required to respond in person to all alarms sent from the Morisset Street pumping station because the pumps could only be reset manually. 66 The council were supplied with two laptops by Rad-Tel for remote access to the telemetry system. These laptops enabled the council's on-call supervisor to remotely dial in and to monitor the pumps at the Morisset Street sewage pump station. 67 A High Water Alarm was also provided for the pumps at the Morisset Street pump station. The council owns and manages the High Water Alarm. The Alarm is connected to the telemetry system and is triggered once the water level rises above a certain point. 68 Once triggered an alarm is sent to the council's computers. Again the alarm is visible to any operator using the computer. If the clear button is not pressed within a pre-set time then the call out system is activated and the SMS system is enabled as described above and a text is sent to the phone number nominated by the on-call council supervisor. 69 On 22 October 2007, the council experienced difficulties with the telemetry warning system alarms not being forwarded to the on-call mobile telephone of the council's on duty supervisor. This was communicated to Rad-Tel by the council. The First Overflow Incident - Not the Subject of the Charge 70 On Sunday, 4 November 2007, at approximately 5.54 am (Australian Eastern Standard Time or "AEST"), Morisset Street sewage pumping station pump no 1 failed. A High Water Alarm was activated, however, the telemetry system SMS failed to engage and no text message was sent to the council's on-call supervisor's mobile phone. 71 The on-call supervisor was Mr John Pearson. By letter dated 11 November 2008 to the EPA, the council admitted that Mr Pearson was neither in possession of, nor trained in, the operation of the laptop. 72 Rather, it was a call from a member of the public to Mr Pearson that alerted the council to the overflow. The council's on-call plumber, Mr James Howard, and labourer, Mr Doug Daniels, were notified of the discharge and attended the scene. 73 The pump was reset but not for approximately six hours and not until untreated sewage overflowed from the system at the Waniassa Street outlet. The sewage had spilled over the earth bund and into the Queanbeyan River through the bull rushes leaving solids and rags stranded on the ground and in the rushes. These were collected and disposed of by Mr Daniels and Mr Howard. The area was sprayed with disinfectant. 74 Mr Pearson notified Mr Darren Laws, the council's Water and Sewer Supervisor, to inform him that although the alarm had been activated, no SMS text alert had been received. 75 The telemetry system could not be rectified because the problem with it could not be identified. The council was aware of this fact. The Second Overflow Incident - the Subject of the Charge 76 At 6.36 pm AEST on 4 November 2007, Morissett Street sewage pump system pump no 1 failed again. The High Water Alarm was activated but again the telemetry system SMS fault message did not activate and no text message was sent to the on-call supervisor. 77 It was not until approximately 6.45 am on Monday, 5 November 2007, when Mr Laws arrived at the council's works depot for work that he noticed that an alarm had been activated for the Morisset Street pump station. 78 After having notified the on-call supervisor, Mr Pearson, Mr Laws attended the Morisset Street sewage pump system and observed that pump no 1 was not working. He reactivated the pump at approximately 6.48 am. The time that had elapsed from the pump's failure to its reactivation was approximately 12 hours. 79 On this occasion the volume of overflowed untreated sewage was 1,856 m3 or 1.85 million litres. The overflow had washed away the earth bund designed to catch any solids and paper before entering Queanbeyan River. 80 The council attended to cleaning up the overflow. 81 Later that day, Mr Bill Webb, Manager of Water and Waste at the council sent an email to Mr Nigel Sargent of the EPA. In the email he referred only to the first pollution incident on 4 November 2007. No reference was made to the second pump failure and discharge. 82 On 8 November 2007, the east basin of Lake Burley Griffin and the Molonglo waterskiing area were closed. Members of the Lake User Group were notified of the pollution. These included various rowing and yacht clubs, boat hire and lake cruise businesses and the water police. 83 On 9 November 2007, the whole of Lake Burley Griffin was closed to activities until 16 November 2007. The waterskiing area reopened on 13 November 2007. 84 On 10 December 2007, in response to a notice to do so in respect of the first pollution incident, the council reported further details of the first discharge on 4 November 2007 to the EPA. Again no mention was made of the second pollution incident. Grounds for a Permanent Stay 85 The grounds for the stay sought by the council are essentially two-fold: (a) first, that a licence should have been granted for the Morisset Street pumping station which, if granted, would have permitted the release of untreated sewage from the Waniassa Street outlet on 4 and 5 November 2007. The EPA's act in failing to grant the licence thereby deprived the council of the only defence available to it under s 122 of the Act to the offence of water pollution created by s 120 of the Act; and (b) second, in circumstances where the Waniassa Street overflow structure was designed to release stormwater and untreated sewage into the Queanbeyan River, and in circumstances where the EPA approved the design, location and installation of the overflow structure and directed the council, under threat of criminal prosecution pursuant to s 96 of the Act, to construct it, which it did, it was a misuse of the Court's process to bring criminal proceedings against the council in relation to the second pollution incident. Evidence of the Council 86 The council relied on, in particular, four affidavits. First, two affidavits of Mr Andrew Herring, the council's solicitor, sworn on 20 July and 5 August 2009. The affidavits attached various documents, including the prevention notices served by the EPA, correspondence between the council and the EPA concerning licensing and several licensing guidelines. 87 Second, an affidavit of Ms Bronwyn Thompson, sworn 13 August 2009. Ms Thompson is the Senior Environmental Health Officer at the council. In her affidavit Ms Thompson attached and exhibited a plan and photographs of the Blundell Street sewage pumping station. The photos depicted a pvc pipe leading from the pumping station to a stormwater gully that in turn entered the Queanbeyan River. 88 Third, and most importantly, the council relied on an affidavit of Mr Gary Chapman sworn 24 August 2009. Mr Chapman is the General Manager of the council and was the Assistant General Manager between 2001 and 2006. Mr Chapman deposed that in 2005, he directed his Manager of Engineering Operations, Mr Howard, to approach the EPA to establish whether the EPA would licence a sewage overflow system to prevent further occurrences of sewage discharge into the caravan park. Mr Howard reported to Mr Chapman that the EPA "was not prepared to issue a licence for an overflow structure". 89 When a further discharge occurred in February 2006, Mr Chapman again requested Mr Howard to undertake a similar enquiry with the EPA. Mr Chapman deposed that Mr Howard reported back to him in these words: "the EPA has had a change of thinking and it will now approve an overflow structure". As a consequence of this statement, Mr Chapman states that he believed that the EPA would issue a licence in respect of the overflow structure. Mr Chapman reported this belief to council in a written report on 15 March 2006. 90 However, at a later meeting with the EPA attended by Mr Howard and Mr Chapman, the EPA clarified its position by, as Mr Chapman understood it, stating that while it was content for such an overflow structure to be constructed and installed, it would not issue "any licence for such a structure to permit discharges from it". Mr Chapman says that it was on the basis of this advice that he did not cause the council to apply for a licence. 91 Mr Chapman was cross-examined by the EPA. During which he agreed that at least by 2005, the EPA had made it clear that no licence would be issued that permitted the discharge of raw sewage from the overflow system: Q. Is it not the case that you had said that it had been your experience, both before going to Queanbeyan and at Queanbeyan, that the EPA would not issue a licence for an overflow structure or to permit the discharge of untreated sewage? A. That's correct. Earlier, I think it was 2005, council made inquiries about whether, in fact, a discharge point or a sewerage overflow could be provided to deal with the problems associated with the caravan park. Q. And it was made perfectly clear that no licence would be issued which would permit an overflow structure which would discharge untreated sewage? A. That was the view of one of the officers at that time. Evidence of the Prosecutor 92 The EPA filed a number of affidavits in defence of the motion, not all of which were referred to in submissions and not all of which require present examination. 93 One contentious trio of affidavits sought to be relied upon were those of Mr Lance Gleeson (sworn 1 October 2008), Mr Darren Laws (sworn 18 September 2008) and Mr Hemraj Fernando (sworn 23 March 2009). These witnesses deposed to events surrounding the first and the second pollution incidents, the details of which have been set out above. Their evidence was objected to by the council on the basis that it was irrelevant and prejudicial. 94 Notwithstanding this objection the affidavit material was admitted into evidence because, in my view, any potential prejudice to the council was outweighed by the public interest of permitting the prosecution to continue, a factor highly relevant to the exercise of the Court's discretion in determining whether or not to grant the stay. 95 The EPA relied upon an affidavit of Mr Stephen Howard affirmed 17 August 2009. Mr Howard was not required for cross-examination, although his evidence was admitted subject to a limitation under s 136 of the Evidence Act 1995, namely, that it was evidence only of the matters the EPA had had regard to in exercising its prosecutorial discretion by deciding to charge the council in respect of the second pollution incident. 96 Mr Howard had been the Manager of Engineering Operations at the council from April 2006. Mr Howard designed the underground retention system to provide the additional storage capacity for the Morisset Street sewage pumping station under the supervision of Mr Chapman. The system was designed to increase the storage capacity of the station in the event of pump failure and to prevent overflow of sewage into the caravan park on Morisset Street. 97 The system was designed so that a surcharge or overflow would only occur if all the other safeguard systems failed. According to Mr Howard, the failure of the SMS on-call system did not render the entire alarm system inoperative as the alarms could be monitored remotely or from the computers at the council depot by the on-call supervisor. 98 Mr Howard stated that at no point had he considered that the council needed EPA approval for the design and location of the structure. Rather, his understanding was that he was subject to the direction of Mr Chapman "due to the Prevention Notice issued by the EPA". 99 Mr Nigel Sargent also affirmed an affidavit on behalf of the EPA on 17 August 2009. The affidavit was also admitted into evidence subject to the same limitation under s 136 of the Evidence Act 1995. At the time the affidavit was affirmed, Mr Sargent was the Regional Manager, South East Region, within the Environment Protection and Regulation Group. Mr Sargent's responsibilities included licensing work which included the licensing of scheduled "sewage treatment systems" in Sch 1 of the Act. 100 Mr Sargent, who was also not required for cross-examination, deposed that in his opinion no part of the council's sewage reticulation systems, pumping stations or overflow structures constituted a scheduled activity requiring a licence because, first, there was no point at which there was a "discharge or likely discharge of wastes or by-products to land or waters" from the sewage infrastructure. Second, because no part of the sewage infrastructure had any "processing capacity" inasmuch as there was no reduction of the biochemical oxygen demand, no reduction of the total dissolved solids and no reduction of the nutrient concentration, in order to provide pathological disinfection. 101 Further, in his experience, he was not aware of any licence that authorised the discharge of raw sewage from a sewage treatment plant. On the contrary, every licence of which he was aware was structured so that a discharge of raw sewage would be treated as a breach of the licence and therefore liable to prosecution. 102 The prosecutor also tendered a bundle of documents, of which those evidencing the discharge on 4 August 2005 were admitted subject to a similar limitation under s 136 of the Evidence Act as that described above. 103 On the second day of the hearing, the EPA sought leave to adduce evidence of standard licences and conditions for the treatment of sewage and to adduce oral evidence from Mr Sargent to support the submission that had a licence been issued by it to the council in respect of the Morisset Street pump station, including the Waniassa Street augmentation, the conditions would not have, in any event, been of assistance to the council for the purposes of any defence pursuant to s 122 of the Act. 104 The course was objected to by the council on the basis that the late application, coming as it did after it had closed its case, would necessitate an adjournment to, first, permit the council to obtain evidence in support of its reply contention that there was no standard licence and that conditions could have been attached to any licence issued that would have permitted the overflow to occur thereby affording it a statutory defence, and second, to cross-examine Mr Sargent. 105 Given the lateness of the application and the attendant disruption it would have caused to the hearing, the Court refused leave to adduce further evidence. Submissions of the Council 106 The council submitted, in short, that in circumstances where the EPA had determined that the sewage reticulation system, including the Waniassa Street overflow outlet, operated in New South Wales but did not require a licence and that in circumstances where the council instead determined to regulate the council's sewerage system through a series of prevention notices which imposed the same or similar requirements that would apply had a licence been issued, to prosecute the council for breach of s 120 of the Act when it was denied availing itself of a defence under s 122 by reason of the refusal to issue a licence, was an abuse of process. 107 To the extent that it was put against the council that it had in fact never applied for a licence, the council further submitted that this was as a consequence of the representations by the EPA that a licence was not necessary and would not be issued. 108 This was so notwithstanding that when the Waniassa Street overflow structure was installed it was, according to the council, a "sewage treatment system" as defined under the Act, which meant it was a premises-based scheduled activity that required a licence authorising the council, as the occupier of the premises, to carry out the activity (s 48(2) and Pt 1 of Sch 1 of the Act). That the Waniassa Street overflow structure was a "sewage treatment system" was a result of the definition of that term in Pt 1 of Sch 1 which, when properly construed, concerned not only the totality of the existing sewage treatment system but also its specific components. These components included the sewage treatment plant, pumping stations, overflow structures and reticulation system comprising of pipes. Given that the population of Queanbeyan at the relevant time was approximately 36,000, the sewage treatment system plainly had an intended processing capacity of greater than 2500 persons. Furthermore, the overflow structure clearly involved the likely discharge of wastes or by-products into "waters", namely, the Queanbeyan River, because that is what it was designed and approved to do. 109 Thus on a proper construction of Pt 1 of Sch 1 to the act, the activity carried out by the council at the Morisset Street pumping station (including the Waniassa Street augmentation) was a scheduled activity, viz, a "sewage treatment system", which, pursuant to s 48(2) of the Act, required licensing. 110 In support of its submissions, the council relied on the 2003 Guidelines which provided that a licence could be issued to approve not just the whole system but "parts of a system", which included the Waniassa Street overflow outlet. 111 Accordingly, a licence was required and should have been issued but was not because of the EPA's erroneous determination that none was necessary. The EPA's conduct in not issuing the licence when required to do so meant that the council was deprived of the capacity to rely on the only defence available to it, namely, the defence provided for by s 122(a) of the Act. 112 Put another way, had a licence been issued by the EPA and had conditions been attached to that licence, the imposition of the conditions would have then provided the council with the opportunity to demonstrate that those conditions had not been contravened (s 122(b) of the Act) thereby avoiding prosecution under s 120 of the Act. It was the loss of this opportunity to establish a defence by reason of the EPA's conduct that rendered the prosecution by the EPA an abuse of process. Submissions of the EPA 113 The EPA submissions may be summarised as follows. First, it was not required to licence the Morisset Street pump station, including the Waniassa Street overflow structure. 114 Second, the pollution the subject of the charge was caused by the council's failure to maintain, monitor and operate the Morisset Street station pumps, particularly in circumstances where it knew that pump no 1 had failed earlier resulting in discharge and that the telemetry alarm system had malfunctioned. 115 Third, the s 96 notices that had been issued by it had no causal nexus to the facts and circumstances which caused the overflows on 4 and 5 November 2007. That is to say, the s 96 notices did not address the council's operations relating to the telemetry system and the working of the Morisset Street pumps, and nothing in the notices caused the council to rely on them to its detriment thereby resulting in the second pollution incident the subject of the charge. 116 Fourth, and closely related to its third submission, it was the council's failure to maintain and monitor the Morisset Street station pumps given the circumstances of the first pollution incident that caused the second pollution incident. Therefore, even assuming that a licence ought to have been issued by the EPA in respect of the sewage pumping station, there would have been no condition attached to the licence that would have sanctioned the second pollution incident the subject of the charge providing the council with a defence under s 122 of the Act. Permanent Stay for Abuse of Process: the Applicable Legal Principles 117 In Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 (at [10]) the High Court referred with approval to the statements of Lord Blackburn in Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210 (at 220-221) who noted that from early on the courts had inherent power to see that their processes were not abused and that the power existed to enable the courts to protect themselves and thereby safeguard the administration of justice. 118 These sentiments were recently affirmed in Dupas v R (2010) 267 ALR 1 where the High Court observed (at [15]): Having regard both to the antiquity of the power and its institutional importance, there is much to be said for the view that in Australia the inherent power to control abuse of process should be seen, along with the contempt power, as an attribute of the judicial power provided for in Ch III of the Constitution. 119 This statement accords with the principles enunciated by that Court in the watershed decision of Kirk v Industrial Court (NSW) (2009) 239 CLR 531 (at [99]). 120 Beyond this, however, the parties were not in agreement as to the applicable legal principles governing when the power to grant a permanent stay for abuse of process ought to be exercised. The dispute concerned the parties' interpretation of the seminal decision of the High Court in Mraz v R (1955) 93 CLR 493. That case concerned a misdirection that as an alternative verdict the jury could find the accused guilty of manslaughter in circumstances where the accused was charged with murder following the death, by "shock", of a woman he had raped. In Mraz Fullagar J held that a substantial miscarriage of justice had occurred by reason of the erroneous direction. His Honour stated (at 514) that if the accused "may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eyes of the law, a miscarriage of justice." 121 In Jago v District Court (NSW) (1989) 168 CLR 23, upon which the council relied, Mason CJ (at 33) referred to the "touchstone" of "fairness" "in the safeguarding of the interests of the accused". However, his Honour also stressed that the test of fairness "involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial" (at 33). Ultimately, Mason CJ formulated the test for a permanent stay of a criminal trial thus (at 34, citations omitted): To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial "of such a nature" that nothing the trial judge can do in the conduct of the trial can relieve against its unfair consequences". 122 The council submitted that when regard was had to the formulations in Mraz and Jago, it was sufficient for it to demonstrate that as a consequence of the EPA requiring the construction of the Waniassa Street augmentation but refusing to issue a licence for the sewage pump station either before or after it was built, it might have lost the fundamental opportunity of an acquittal by availing itself of the only possible defence under s 122 of the Act to the offence charged under s 120, which once lost could not be remedied by any curial process. 123 But, as the EPA correctly, in my opinion, submitted, the test is not whether the council might have lost a fair chance of acquittal as a consequence of the EPA's actions. That is to say, that the council lost the possibility that they might have been issued with a licence that might have included a condition that afforded it with a defence under s 122 of the Act. What the council was required to establish was that it would have obtained a licence for the augmented Morisset Street pump station and that a licence, if issued, would have contained a condition that would have brought into operation s 122 of the Act. 124 A careful analysis of the case law relied upon by the council confirms this conclusion to be correct. First, in Jago the High Court stressed the exceptional nature of the remedy of a permanent stay, with at least three judges (Mason CJ, Brennan and Toohey JJ at 30, 47-48 and 71-72 respectively) inextricably linking the concept with abuse of process and opining that not any perceived unfairness in a trial will result in a permanent stay. 125 Second, in Grey v R (2001) 184 ALR 593 the unfairness arose from the non-disclosure of a letter of comfort given to a critical Crown witness in the accused's trial in return for the witness giving evidence against the accused. The witness had pleaded guilty to the charges and had received a reduced sentence for his assistance. The High Court held, quoting (at [25]) Wilde v R (1988) 164 CLR 365 (at 371-372 which cited Mraz), that the failure to disclose the letter was a miscarriage that affected the justice of the trial inasmuch as the accused lost a fair chance of acquittal in light of the importance of the witness' evidence and the weight placed upon his reliability. 126 But significantly in Grey what was at issue was not the appropriateness of granting a permanent stay, but the less extreme remedy of quashing the conviction and ordering a retrial, which is what the Court ordered. Furthermore, given the likely adverse impact this information would have had on the witness' credibility in cross-examination, it could not be said that disclosure would not have affected the accused's fair chance of acquittal. 127 Third, in the decision in R v Ulman-Naruniec (2003) 143 A Crim R 531, a case concerning the concealment and loss of evidence by the Australian Federal Police and the Director of Public Prosecution, the majority of the Court refused to order a permanent stay (Bleby and Besanko JJ, with Sulan J dissenting). The Court held that not any or all perceived unfairness in a trial will warrant a permanent stay. Rather, there had to be something that was so exceptional it could not be corrected by other measures open to the court (at [24] and [70]-[72]). 128 The council relied on this latter statement in support of its submission that because of the failure of the EPA to issue a relevant licence, it had lost an opportunity to avail itself of the only applicable defence resulting in unfairness that could not be remedied by other curial processes. However, in Ulman-Naruniec their Honours went on to state that in circumstances where there was the mere possibility that the lost evidence might be of some assistance this was not enough to warrant the "extreme" step of granting a permanent stay (at [39]-[40]). 129 Finally, in R v Edwards (2009) 255 ALR 399 the High Court unanimously emphasised that the test, referring to its decision in Walton v Gardiner (1993) 177 CLR 378 at 392, was not whether the continuation of the proceedings could constitute unfairness or injustice but (at [23]): [23] His Honour purported to state the test by reference to the decision of this court in Walton v Gardiner . A majority of the court approved each of the formulations of the test applied by members of the Court of Appeal; "whether, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness", or whether the "continuation of the proceedings would be 'so unfairly and unjustifiably oppressive' as to constitute an abuse of process". Their Honours observed that it had been made plain by the Court of Appeal that the court would only be satisfied that continuation of the proceedings constituted an abuse in an exceptional or extreme case. 130 Recently, these principles were conveniently summarised by Lloyd J in Director-General, Department of Environment and Climate Change v Gleeson; Director-General, Department of Environment and Climate Change v Epacris Pty Ltd (2009) 165 LGERA 99 (at [26]-[30]): 26 The power to stay proceedings for abuse of process is discretionary and the categories of cases in which the court may stay its proceedings for abuse of process are various and not closed: R v Carroll (2002) 213 CLR 635 at 650-651; Rogers v The Queen (1994) 181 CLR 251 at 255. 27 However, the power to stay is, in essence, a power to refuse jurisdiction and to interfere with prosecutorial discretion. It is therefore exercisable only in extreme and exceptional cases: Jago v District Court (NSW) (1989) 168 CLR 23 per Mason CJ at 34 and per Gaudron J at 76. 28 A stay may only be granted in circumstances where there has been a misuse of the court process, and where continuation of the prosecution would be inconsistent with the recognised purposes of the administration of criminal justice: Jago v District Court (NSW) per Mason CJ at 30, approving the statements of Richardson J in Moevao v Department of Labour [1980] 1 NZLR 464 at 482. 29 The discretion is determined by a weighing process which involves the subjective balancing of a variety of considerations. These considerations include fairness to the accused, the legitimate public interest in the disposition of charges of serious offences, the legitimate public interest in the conviction of those guilty of crime and the need to maintain public confidence in the administration of justice: Walton v Gardiner per Mason CJ, Deane and Dawson JJ at 395-396. 30 In R v Ulman-Naruniec (2003) 143 A Crim R 531, Sulan J, sitting on the Court of Criminal Appeal in the Supreme Court of South Australia, set out a useful threshold test for the permanent stay of proceedings at [205]: Although the limits of conduct which may amount to an abuse of process to justify a permanent stay have not been defined, before the power is exercised it is, in my opinion, necessary to establish: (i) That there is prejudice caused by the abuse of process. (ii) That the prejudice caused will be perpetuated or aggravated through the conduct of the trial so as to result in the accused not receiving a fair trial. (iii) That there is no remedy available which will alleviate the prejudice. (iv) That the unfairness is such that the administration of justice is best served by staying the proceeding, having regard to the overriding interest in the effective prosecution of criminal cases. 131 In Jago Mason CJ described a "misuse of the Court process" as "the continuation of processes which will culminate in an unfair trial because the public interest in holding a trial does not warrant the holding of an unfair trial" (at 30-31). It is therefore clear that in determining whether or not to grant a permanent stay even if unfairness can be established a court must balance the interests of justice of the accused against those of the community in having breaches of the law prosecuted (Jago at 33). 132 Critically, the cases are replete with statements to the effect that a permanent stay of proceedings is not lightly ordered (Edwards at [34]). In Jago Gaudron J (at 78) described the test thus: that a court "should only grant a permanent stay if satisfied that no other means is available to remedy that feature which, if unremedied, would render the proceedings so seriously defective, whether by reason of unfairness, injustice or otherwise, as to demand the grant of a permanent stay". In Dupas (at [18]) the High Court quoted with approval R v Glennon (1992) 173 CLR 592 at 605-606: [A] permanent stay will only be ordered in an extreme case and there must be a fundamental defect "of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences". And a court of criminal appeal, before it will set aside a conviction on the ground of a miscarriage of justice, requires to be satisfied that there is a serious risk that the pre-trial publicity has deprived the accused of a fair trial. It will determine that question in the light of the evidence as it stands at the time of the trial and in the light of the way in which the trial was conducted, including the steps taken by the trial judge with a view to ensuring a fair trial. 133 Later in Dupas (at [35]) the Court said: [35] Characterising a case as extreme or singular is to recognise the rarity of a situation in which the unfair consequences of an apprehended defect in a trial cannot be relieved against by the trial judge during the course of a trial. There is no definitive category of extreme cases in which a permanent stay of criminal proceedings will be ordered. In seeking to apply the relevant principle in Glennon , the question to be asked in any given case is not so much whether the case can be characterised as extreme, or singular, but rather, whether an apprehended defect in a trial is "of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences". 134 Having said this, permanent stays are ordered by courts, including this Court. The decision in Gleeson affords an example. In that case, the defendants (a company and its director) were alleged to have contravened the Native Vegetation Conservation Act 1997 in relation to the unlawful clearing of 423 ha of native vegetation. The Director-General of the Department of Infrastructure Planning and Natural Resources issued a direction by notice to the company to carry out remediation work in respect of the area unlawfully cleared. The direction stated that the clearing had occurred in contravention of the Act. It also stated that a failure to comply with the direction was an offence. The defendants appealed the direction in Class 1 of the Court's jurisdiction. The proceedings were settled with final orders being made and the direction formally revoked, but with a new direction to be made in its place and an agreement by the parties to execute a property agreement pursuant to the Act. In 2005, a new direction was issued to carry out remediation work and the property agreement was executed. However, the defendants were nevertheless subsequently charged with the unlawful clearing of native vegetation under the Act. 135 The Court held that by agreeing to settle the proceedings on the terms they did, the defendants had reasonably been led to believe that all matters in dispute were finally resolved and that no further prosecution would occur in respect of the clearing. The further prosecution of the defendants for breach of the Act in respect of the same subject matter as the settled proceedings thereby amounted to an abuse of process. The Proceedings Ought Not be Stayed 136 In my opinion, the council's motion must be refused on three bases. First, the submission put by the council that the Morisset Street sewage pumping station was required to be licensed is not correct. Second, even if a licence should have been issued, the unfairness about which the council complains does not exist because as both the evidence and the Act demonstrate, no conditions attaching to any licence issued would have permitted the second overflow incident the subject of the charge. Third, in any event, in light of the council's history of sewage overflows, with their attendant risk of harm to the environment and to human safety, the public interest in permitting the prosecution to proceed outweighs any unfairness created by the absence of the licence. No Licence Was Required to be Issued by the EPA 137 In my view, no licence was required to be issued by the EPA in respect of the Morisset Street pump station. This is because while I accept that on a proper construction of the definition of "sewage treatment systems" in Sch 1 of the Act, the Morisset Street sewage pumping station fell, as was submitted by the council, within the definition of that term (it is plainly a "pumping station" which is specifically included in the definition of "sewage treatment systems"), I do not accept that the station treated sewage, involved the discharge, or likely discharge, of wastes or by-products to land or waters or that the pumping station alone, even as augmented, had a processing capacity of 2,500 persons or 750 kilolitres per day. 138 In so finding I have rejected the submission of the EPA that the composite term "sewage treatment systems" ought to be interpreted to mean the sewage treatment system in its entirety. First, such a construction does not accord with the use of the term in the plural, suggesting that there may be more than one 'system'. Second, the construction is inconsistent with the express and specific inclusion of "pumping stations" and "sewage overflow structures". Third, it is inconsistent with any contextual construction of the term having regard to the objects of the Act in s 3(a), (d) and (e) of the Act, the obvious mischief to which the definition is directed (CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408, Wilson v State Rail Authority of New South Wales [2010] NSWCA 198 at [12] and Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190 at [42]) and the mandatory matters for consideration by the EPA in s 45 of the Act. 139 In short, the EPA's construction, namely, that a licence can only be issued to the entire sewerage system and not its discrete components - which was impossible in this case because the treatment plant was extra-territorially located in the ACT - not only does not accord with the language of the statutory definition, it does not accord with the purpose of Ch 3 of the Act which is to facilitate the regulation of, and thereby control, potentially polluting activities. 140 The interpretation contended for by the EPA is also not consistent with the term's premises-based activity classification. That is to say, located as they are in Pt 1 of Sch 1 of the Act, "sewage treatment systems" are activities that are carried out at a place or premises. A premises-based activity is strongly suggestive of an activity occurring at a specific location, such as the Morisset Street sewage pumping station, and not confined to an entire system. By contrast, Pt 2 of Sch 1 concerns activities that are not premises-based but are mobile. The pumping of sewage at a particular location does not conform to the activities envisaged in Pt 2 of Sch 1. 141 In addition, the provision by the legislature in s 56(1) of the Act that a licence must specify the premises to which it applies, which can be narrowed further in s 56(2) to the precise location where the activity regulated by the licence is carried out, contemplates that particular aspects of a more general activity can be licensed (in this case, for example, a particular pumping station forming part of the wider sewerage treatment system). It also contemplates a construction of the definition of the term "sewage treatment systems" that enables licences to be issued for individual components undertaking different activities within the overall system. This of course would not preclude a licence being issued in respect of the entire system (with the exception of that part of the system located in the ACT). But, in my view, the preferable construction of the term is that which is consistent with both its text and context, namely, that individual parts of the entire sewage treatment system are amenable to the licensing regime contained in Ch 3 of the Act. 142 No comfort can be derived, as the EPA sought to do, from the 2003 Guidelines. On the contrary, as the passages extracted above demonstrate, one of the stated purposes of the introduction of integrated environmental licensing was to extend the sewage treatment licences to whole sewage systems and not just discharges from sewage treatment plants. This stated aim was to avoid confining the EPA's regulatory reach to entire sewage treatment systems to the exclusion of any ability to licence specific components within those systems. On the contrary, it was to afford the EPA greater flexibility in regulating some or all of a sewage treatment system and not just, as had previously been the case, discharges from a sewage treatment plant. 143 Having said this, I am nevertheless of the view that no licence was required to be issued in the present circumstances. This is because, first, the Morisset Street sewage pumping station was one of 15 sewage pumping stations located in Queanbeyan which, together with the reticulation of network of sewerage pipes, formed the sewage treatment system. While as at 2006 the system served a population of approximately 36,000 people, that is to say, well in excess of the 2,500 person equivalent capacity required to satisfy the definition of "sewage treatment systems", no evidence was before the Court as to what the capacity was of the Morisset Street sewage pumping station. I cannot accept, given that there were 15 pumping stations, that the capacity of the Morisset Street pumping station was 36,000 and I cannot, on the available material before the Court, extrapolate by inference what the capacity was of that particular sewage pumping station. That regard must be had to the capacity of that specific pumping station follows from my acceptance of the proposition that the Morisset Street sewage pumping station was a sewage treatment system for the purposes of the term "sewage treatment systems". 144 Second, notwithstanding the construction of the Waniassa Street augmentation, it is not correct, in my view, to characterise the functioning of the Morisset Street sewage pumping station – which is the sewage treatment system the council contends should have been licensed - as involving "the discharge or likely discharge of waste or by-products to land or waters". On the contrary, the pumping station was constructed and designed to avoid the "discharge" or even the "likely discharge" of waste or by-products to land or water (it was not in dispute that sewage constituted "waste"). 145 While it is undeniably the case that an ancillary function of the Waniassa outlet was, in the case of an extreme weather event or an unavoidable and unanticipated pump malfunction or blockage, to discharge sewage in a location that was away from the previous repository of any discharge of effluent, namely, the caravan park, the primary function of the Wanniassa Street augmentation was simply to increase the overall retention capacity of the Morisset Street pumping station, which, as a pumping station, involves the passage of sewage from one point to another. 146 Again, construed in context, the verb "involve", particularly when read together with the adjective "likely" does not mean that any discharge, however unintentional, qualifies the pumping station to be described as a "sewage treatment system". The word "involve" is defined in the on-line version of the Macquarie Dictionary as "to include as a necessary circumstance, condition, or consequence", or "to affect, as something within the scope of operation", and similarly, "to cause to be inextricably associated or concerned". Contained in these definitions is, in my opinion, an element of intention. That is to say, a "sewage treatment system" must intend for a discharge or likely discharge to occur. The Morisset Street pump station intended for quite the opposite to occur. Furthermore, as Mr Howard stated in his unchallenged evidence, given that the stated purpose in constructing the Waniassa Street augmentation was to prevent further surcharges from occurring thereby avoiding future pollution incidents in the caravan park, it cannot be said that the augmented pumping station "involved" or even "likely involved" the discharge of waste or by-products to land or waters. This was not its intended purpose. 147 Third, I accept the submission of the EPA that the Morisset Street pumping station, including the Waniassa Street augmentation, did not 'treat' the sewage either flowing through, or retained by, it. While no reference to the work envisaged to be performed by the term "treatment" is given in the definition of "sewage treatment systems", nevertheless its presence in the composite term demands that in order to be classified as a "sewage treatment system" the Morisset Street pumping station must treat the sewage in some manner. The term "treat" is defined in the Macquarie Dictionary (on-line version) as "to deal with" or "to subject to some agent or action in order to bring about a particular result". 148 As the evidence of Mr Sargent demonstrated, however, no part of the Morisset Street pumping station had any processing capacity. That is to say, no part of the operation of the pumping station "dealt with" the sewage in terms of the reduction of biochemical oxygen demand, the reduction of the total dissolved solids, the reduction of the nutrient concentration thereby resulting in pathological disinfection. Put another way, the pumping station did not treat the sewage and as a consequence could not be classified as a "sewage treatment system". 149 Accordingly, the operation of the Morisset Street sewer pump station was not an activity that required a licence to be carried out by the council. 150 Finally, and in any event, s 42 of the Act makes it explicit that the EPA retains a discretion as to whether or not it will issue an environment protection licence. This is confirmed by s 45 of the Act. The provision says that such licences "may" be issued. While it is correct that absent a licence, as a Sch 1 activity the operation of the Morisset Street pumping station would have been unlawful pursuant to s 48 of the Act, the fact remains that it would have been within the power of the EPA to refuse to issue a licence thereby compelling the council to terminate the operation of the station. There is nothing repugnant about this construction given the plain and unambiguous words of s 42 of the Act. Indeed such an interpretation is entirely consonant with the ability of the EPA to refuse, where it considers it appropriate to do so, to permit polluting activities to be carried out. The Proceedings Are Not Unfair 151 To the extent that the council submits that the reason it did not apply for a licence was because it relied on statements by the EPA that none would be forthcoming, in my view this does not assist the council. This is because, first, as the evidence plainly demonstrates, the EPA made it clear, and the council understood, that no licence would ever be issued which would permit an overflow structure that would discharge untreated sewage. So much so is apparent from the evidence of Mr Sargent, from the correspondence passing between the EPA and the council – for example, the letter from the council on 15 September 2000 and the letter to the council from the EPA in respect of the Blundell Street pumping station on 31 January 2003 - and from the cross-examination of Mr Chapman where he conceded that in 2005 the EPA made it "perfectly clear that no licence would be issued which would permit an overflow structure which would discharge untreated sewage". This view was consistent with the approach taken by the EPA in respect of the licensing of the Blundell Street pumping station. 152 In any event, there was nothing to prevent the council from applying for a licence in the anticipation that conditions would be attached permitting any accidental sewage overflows and if refused, to appeal the decision to this Court (s 287 of the Act). Likewise, to the extent that the council complained that it undertook the augmentation of the Morissett Street sewage pump station under compulsion of the s 96 prevention notices in the absence of any licensed protection, it could have appealed any or all of the notices (s 287 of the Act). It did neither. 153 Accordingly, it cannot be concluded that by stating that a licence was not required and would not be issued in respect of the augmented sewage pump station at Morissett Street, the EPA denied the council an opportunity of availing itself of a defence under s 122 of the Act. The refusal to issue a licence does not, as the council in effect submits, equate to a representation by the EPA that pollution occasioned by a sewage surcharge was permissible. This submission is not consistent with the evidence, which unequivocally demonstrates that the EPA would never have issued a licence in respect of an overflow structure that permitted effluent to be discharged, and moreover, the council knew this. There was no representation by the EPA as asserted and even if there were, there could be no reliance by the council on it. 154 This conclusion is reinforced by the fact that the design of the Waniassa Street augmentation was wholly proposed by the council, albeit in response to the EPA's demands, through the mechanism of the s 96 notices, that the council remedy surcharges of sewage occurring in the caravan park. Contrary to the submission of the council, I do not accept that the EPA, as a consequence of the issuing of the s 96 notices, represented that it was the approving body in relation to the augmentation. Its communications with the council were to the opposite effect (see, for example, the notes of the 24 March 2006 meeting or the letter dated 4 December 2006 from Mr Bell to the council, where the EPA forcefully eschewed any such suggestion). 155 The s 96 prevention notices were issued to formalise the council's undertaking to install an underground retention system and earth bund to prevent any further surcharges. Assuming that a licence had been issued by the EPA in respect of the augmentation, the fact remains that the pollution was caused not by a failure of these structures but by the failure of the pump at the Morisset Street pumping station combined with the failure of the council to provide a timely response to the stoppage, including the additional time that the augmentation gave the council, particularly in light of the notice it was given as a consequence of the earlier overflow that such a pollution event could occur. 156 To the extent that the council relied on Gleeson, the factual situation in Gleeson can be distinguished from the circumstances of this case. Whereas in Gleeson there had been, in effect, a representation made by the prosecutor in settling the proceedings that no further process would be initiated in respect of the subject matter of the discontinued suit provided the terms of the settlement were adhered to, in the present case, irrespective of any approval it had afforded the design and construction of the Morisset Street overflow system through the issuing of, and the council's compliance with, the prevention notices, the EPA had explicitly stated that no licence would be issued permitting the discharge of raw sewage. In mandating that the overflow system be built the EPA did not undertake or represent, either expressly or impliedly, not to prosecute the council for a breach of the Act if an overflow occurred regardless of the circumstances causing it. Put another way, the fact that the EPA was fixed with knowledge of the point at which the overflow might occur by reason of the construction of the augmentation did not amount to a consent to pollute at that point. 157 In my view, it is, moreover, highly unlikely that a licence would have been issued permitting the second overflow event the subject of the charge. The position of the EPA in this regard was consistent with the Act insofar as s 63(2) prevents the attachment of conditions to a licence "if compliance with the condition would result in a breach of a requirement made by or under" the Act. 158 Having said this, it must be recognised that activities are regularly licensed that would, absent the licence and any conditions attached, result in a breach of the Act. Construed literally s 63(2) would create the absurd result that almost no licences could be issued. The fact remains that polluting activities are sanctioned under the regulatory framework permitted in the Act by, amongst other things, compliance with conditions. 159 But in my opinion, the council has not demonstrated – and it bears the onus of doing so (ADI Ltd v Environment Protection Authority (2000) 118 A Crim R 335 at [19]) - that even if a licence would have been issued by the EPA, it would have been subject to conditions that, in practice, would have permitted the pollution by it of the Queanbeyan River occasioned by a surcharge occurring in the circumstances in which it did. The evidence of Mr Sargent, which was not the subject of challenge by the council, was that he was not aware of any licence that authorised the discharge of raw sewage from a sewage treatment plant. 160 In addition, to the extent that there was any evidence of the conditions that the EPA would have imposed had a licence been granted, Condition L1.3 in the 2003 Guidelines allowed for overflows to occur "provided all conditions of the licence, including those relating to operation and maintenance, have been met" (emphasis added). This would include, for example, the proper maintenance and operation of the sewage pump station at Morisset Street, including pump no 1 and the telemetry alarm system. Condition O7 stated, consistent with Condition L1.3, that "the EPA expects all new sewage pumping stations to be designed so they will not overflow in dry weather and pollute waters". 161 The council submitted that the 2003 Guidelines were just that. That is to say, they did not have the force of a policy issued under the Act (Ch 2), and they could not be used to extrapolate to the level of certainty required, the conditions that would have been attached to any licence that ought properly to have been issued by the EPA in respect of the Morisset Street sewage pumping station. In addition, the council submitted that there was no evidence upon which the Court could make any finding as to the nature and express terms of any conditions attaching to the hypothetical licence. Any attempt to do so "could never rise about pure speculation". 162 But "pure speculation" is precisely what the council invites the Court to engage in by submitting that a permanent stay ought to be ordered because it has lost the opportunity of availing itself of a defence under s 122 of the Act premised on hypothetical conditions. The onus is on the council to demonstrate that the EPA ought to have issued a licence that would – not might - have imposed conditions that, if complied with, would have enlivened s 122. While it is not known if there are standard licences with standard conditions that govern the operation of sewage treatment systems, what is known, and what I find based on the evidence of the council's witnesses, the correspondence and the 2003 Guidelines, is that the EPA would not have permitted by any licensing system the second pollution incident. 163 True it is, as the council submitted, the 2003 Guidelines were published after the Morisset Street pumping station was constructed. But their publication was before the Waniassa Street augmentation was built and, in my view, the Guidelines remain relevant. Equally unassailable is the proposition that the Guidelines contemplated the imposition of conditions in respect of sewage overflows (see Conditions O7, O8 and G4). But this observation is to miss the point. Significantly, as the EPA submitted and the evidence disclosed, these conditions would not have in any event permitted an overflow to occur in the circumstances in which it did during the second pollution incident. 164 Ultimately, while I accept the submission of the council that the 2003 Guidelines cannot be used by the Court to find that the council would have inevitably contravened some unknown condition attaching to any licence issued by the EPA in respect of the Morisset Street pumping station, I do find that the Guidelines nevertheless show that the EPA would not have issued a licence with attached conditions that would have sanctioned the second sewage surcharge. 165 In so finding, I accept, contrary to the submission of the EPA, that the second surcharge did not occur in dry weather. It was the evidence of Mr Chapman that the events of 4 November 2007 occurred in wet weather and the rainfall records demonstrate that between 12 am and 9 am on 5 November 2007 3 mm of rain fell. The council relied on the fact that these records also show that in the early hours of 4 November 2007, 39 mm of rain fell and that it can take a number of days for flows through the system to return to dry weather levels. 166 However, even taking this evidence at its highest, the rain that fell on 4 and 5 November 2007 could not be characterised as an extreme weather event (no witness sought to do so) and there was no evidence that water levels were grossly elevated sufficient to explain or excuse any consequential sewage overflow. The second overflow occurred in circumstances where the surcharge could not be characterised as unanticipated given the events surrounding the first overflow, namely, that pump no 1 and the telemetry system had both failed. Indeed given these earlier events, the rainfall only serves to exacerbate the council's failure to have taken preventative steps to avoid the second surcharge. 167 By reason of the first discharge, the council was, in my view, clearly on notice that the telemetry system was not fully operational, and therefore, could not be relied upon to warn the council if pump no 1 failed again. The council was also on notice there was an issue with the correct functioning of one of the pumps at the station. That the council did not, given this knowledge, take precautionary measures to ensure against, or at the very least minimise, another discharge from the Morisset Street pump station limits the extent to which it may now complain of unfairness. That is to say, it is this failure by the council that would have, in any event, denied it a defence under s 122 of the Act, and not any omission on the part of the EPA to issue the council with a licence. 168 The council vociferously asserted that the evidence relied upon by the EPA "to support the submission that the Defendant was negligent in its operation of the" Morisset Street pumping station on the evening of 4 November 2007 had only been received for a limited purpose under s 136 of the Evidence Act, namely, the basis upon which the EPA had made the decision to institute criminal proceedings against the council, and not as proof of the truth of the facts alleged. Thus, the council submitted, there was no evidence whatsoever that the second pollution incident would not have been the subject of conditions attaching to a licence that would have provided a defence under s 122 of the Act. 169 To this argument there are several responses. First, it was no formal part of the EPA's case that the council was negligent, at least not in any tortious sense. Nor could it have been given the limitation imposed on the admission of the evidence. Second, a consideration to which the EPA properly had regard in its decision to charge the council was the fairness or otherwise of any prosecution and, if potentially unfair, the public interest in nevertheless proceeding to charge the council. Any consideration of these matters must have included all of the circumstances giving rise to the offence. This encompassed the events leading up to and culminating in the second pollution incident, including the previous discharges into the caravan park, the first pollution incident and the failure of the council to inform the EPA in a timely way of the second pollution incident the subject of the charge. These are the same events and same considerations required to be scrutinised by the Court in determining this application. There is no difference in their compass or their deployment for present purposes. That is to say, a consideration of the unfairness of the proceedings if the prosecution is permitted to continue will naturally and invariably overlap with the considerations the EPA had regard to in deciding whether or not to charge the council, especially given that it has deliberately not charged the council in respect of the first pollution incident. 170 It therefore follows that the Court is permitted to examine the events giving rise to the offence as charged in order to determine if the prosecution is unfair thereby warranting a permanent stay of the proceedings. Of necessity this includes an examination of whether any licence, if issued, would have contained conditions permitting the impugned overflow. 171 It is in these circumstances that I accept that the EPA would not have, even assuming it ought to have issued a licence, sanctioned by conditions the second pollution incident. Alternatively, I find that the council has not sufficiently demonstrated for the purpose of this application that it would have been able to avail itself of a defence under s 122 had the Morissett Street sewage pumping station been regulated by an environment protection licence. Public Interest 172 The council's position with respect to public interest was succinctly stated by the simple submission that it could never be in the public interest to permit an unfair trial to proceed, and that for the reasons it had submitted, the prosecution was unfair. 173 Put in this broad way the criteria of public interest is devoid of content, wholly conflated with the concept of unfairness. Thus, on the council's submission, whenever a trial is found to be unfair, it is against the public interest to allow it to continue and if irreparable, a permanent stay must result. 174 By contrast, the EPA submitted that even if it were found that a licence ought to have been issued and that any failure to do so resulted in concomitant unfairness to the council, that to order a stay of the proceedings would not be in the public interest in the present case because, first, of the history of pollution emanating from the Morisset Street sewage pump station, and second, the failure of the council to take adequate steps to prevent the second pollution incident given their knowledge of the circumstances giving rise to the first pollution incident. In particular, given the council's knowledge that the telemetry system could not be relied upon to warn the on-call supervisor by SMS text message of the no 1 pump failing again. 175 In my opinion the public interest in these proceedings compels the prosecution to proceed. Water pollution is a serious matter. The gravity with which the legislature views such an act is reflected in the strict liability attaching to those who, whether it by deliberate design or accidental discharge, cause pollution to enter waterways. It is also reflected in the penalty. This is no doubt because of the potential to cause serious harm to the environment and to human health. These observations are particularly acute when the polluting substance is raw sewage, with all of its attendant risks, flowing into waterways. 176 In the present circumstances, I accept the submissions of the EPA that the sorry history of effluent discharge in the caravan park and the surrounding events leading up to the pollution incident the subject of the charge compels the conclusion that the public interest lies in permitting the prosecution to proceed. I reach this conclusion even, taking the council's case at its highest, allowing for the possibility that a licence should have been issued which might have incorporated conditions affording the council a defence under s 122 of the Act. 177 As the case law reviewed above demonstrates, the granting of a permanent stay in a criminal trial is an exceptional occurrence. But as explained above, the facts and circumstances of this application do not warrant the cessation of the proceedings, rather they mandate the continuation of the trial. Conclusion and Orders 178 Because I have determined that the prosecution if permitted to continue would not result in unfairness and, in any event, the public interest lies in the trial proceeding, the application for a permanent stay must be refused. 179 The orders of the Court are therefore: (1) the notice of motion is dismissed; (2) the matter is listed before the list judge on 4 February 2011 at 9.15 am for further directions; (3) the council is to pay the prosecutor's costs on the motion; and (4) the exhibits are to be returned. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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