Environment Protection Authority v Hunter Water Corporation [2016] NSWLEC 76

Land and Environment Court New South Wales

Medium Neutral Citation: Environment Protection Authority v Hunter Water Corporation [2016] NSWLEC 76 Hearing dates: 2 May 2016 Date of orders: 17 June 2016 Decision date: 17 June 2016 Jurisdiction: Class 5 Before: Moore J Decision: See orders at [169] Catchwords: PROSECUTION – pollution of waters – discharge of acidic substance into watercourse – discharge over four-month period PROSECUTION – pollution of waters – discharge of large volume of treated water containing chlorine – discharge effected to flush the receiving waterway of the substance subject of the first charge PROSECUTION – breach of Environment Protection Licence condition – failure to maintain an acid transfer pump – failure to maintain pump caused leakage of the substance in the first prosecution PROSECUTION – breach of Environment Protection Licence condition – failure to operate a bund drain pipe valve – bund drain pipe valve left open for a period of four months PROSECUTIONS – whether the offences charged should be regarded as one composite and related group of offences or whether two distinct instances of offending – first pollution of waters offence together with both contravention of licence condition offences constitute a single instance of continuing offending conduct – offence of pollution of waters by flushing with treated water containing chlorine is a separate and distinct offence PENALTIES – assessment of seriousness of the offending conduct PENALTIES – appropriate to have regard to aggregation and proportionality for the group of three offences – appropriate to have regard to the principle of totality when considering all four offences – discount for early plea – total indicative sentences of $600,000 appropriate – application of appropriate principles of aggregation and totality to derive penalties when coupled with the discount of 25% for the early guilty plea results in an appropriate total penalty of $187,500 PENALTIES – publication order – publication order made requiring notices to be produced in one regional and two local papers, all of which circulate in the area where the offences occurred PENALTIES – application of moneys to an environmental project – agreed project – project known as "Managing Sediment Export and Grazing on the Dungog Common Recreation Reserve" – any moneys not expended on the project to be paid into the Environmental Trust fund Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Environmental Trust Act 1998 Protection of the Environment Operations Act 1997 Cases Cited: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Environment Protection Authority v Big River Group Pty Ltd [2011] NSWLEC 80 Environment Protection Authority v CSR Building Products Limited [2008] NSWLEC 224 Environment Protection Authority v Hanson Precast Pty Ltd [2008] NSWLEC 285 Environment Protection Authority v Orica Australia (the Ammonium Nitrate Solution Spill Incident) [2014] NSWLEC 109 Environment Protection Authority v Orica Australia Pty Ltd (the Ammonia Incident) [2014] NSWLEC 107 Environment Protection Authority v Orica Australia Pty Ltd (the Botany Mercury Incident) [2014] NSWLEC 110 Environment Protection Authority v Orica Australia Pty Ltd (the Hexavalent Chromium Incident) [2014] NSWLEC 106 Environment Protection Authority v Orica Australia Pty Ltd (the Jackhammer Incident) [2014] NSWLEC 105 Environment Protection Authority v Orica Australia Pty Ltd (the Nitric Acid Air Life Incident) [2014] NSWLEC 103 Environment Protection Authority v Straits (Hillgrove) Gold Pty Ltd [2010] NSWLEC 113; (2010) 174 LGERA 314 Environment Protection Authority v Sydney Water Corporation [2015] NSWLEC 80 Environment Protection Authority v Timber Industries Ltd [2001] NSWLEC 25 Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; 148 LGERA 299 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Morrison v Defence Maritime Services Pty Ltd [2007] NSWLEC 421 Plath v Rawson [2009] NSWLEC 178; 170 LGERA 253 R v Thompson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465 Category: Principal judgment Parties: Environment Protection Authority (Prosecutor) Hunter Water Corporation (Defendant) Representation: Counsel: Mr N Allan, solicitor (Prosecutor) Mr J Johnson, barrister (Defendant)