Environment Protection Authority v Sydney Water Corporation [2024] NSWLEC 130

Land and Environment Court New South Wales

Medium Neutral Citation: Environment Protection Authority v Sydney Water Corporation [2024] NSWLEC 130 Hearing dates: 21, 24, 25 October 2024 Date of orders: 29 November 2024 Decision date: 29 November 2024 Jurisdiction: Class 5 Before: Pain J Decision: See below in [136]. Catchwords: CRIMINAL – sentencing for offence of failure to maintain equipment in proper and efficient manner – plea of guilty – discharge of untreated sewage into stormwater drain from pipe – minimal environmental harm established – prior convictions aggravating – mitigating factors – payment to Environmental Trust ordered – publication order made Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 23 Criminal Procedure Act 1986 (NSW), s 257B Fines Act 1996 (NSW), s 6 Protection of the Environment Operations Act 1997 (NSW), ss 3, 64, 241, 244, 250, Sch 6 Cases Cited: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bartter Enterprises Pty Ltd v Environment Protection Authority [2022] NSWCCA 43 Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Chief Executive, Office of Environment and Heritage v Kyluk Pty Ltd (No 4) (2014) 212 LGERA 1; [2014] NSWLEC 74 Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 Director-General, Department of Environment and Climate Change v Walker Corporation Pty Ltd (No 4) [2011] NSWLEC 119 Environment Protection Authority v Ecolab Pty Ltd (2002) 123 LGERA 269; [2002] NSWLEC 206 Environment Protection Authority v Hawkesbury City Council [2017] NSWLEC 39 Environment Protection Authority v John Michelin & Son Pty Ltd [2019] NSWLEC 88 Environment Protection Authority v Port Kembla Copper Pty Ltd [2003] NSWLEC 256 Environment Protection Authority v Queanbeyan City Council (No 3) (2012) 192 LGERA 415; [2012] NSWLEC 220 Environment Protection Authority v Sydney Water Corporation [2023] NSWLEC 68 Environment Protection Authority v Sydney Water Corporation (No 2) [2023] NSWLEC 2 Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 17 Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 Environment Protection Authority v Sydney Water Corporation [2015] NSWLEC 80 Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242 Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 Hoare v R (1989) 167 CLR 348; [1989] HCA 33 Markarian v R (2005) 228 CLR 357; [2005] HCA 25 Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66 Plath of Department of Environment and Climate Change v Fish; Plath of Department of Environment and Climate Change v Orogen Pty Ltd (2010) 179 LGERA 386; [2010] NSWLEC 144 R v Araya (2005) 155 A Crim R 555; [2005] NSWCCA 283 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Ruha (2010) 198 A Crim R 430; [2010] QCA 10 R v Rushby [1977] 1 NSWLR 594 R v Storey [1998] 1 VR 359 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Visconti [1982] 2 NSWLR 104 Veen v R (1979) 143 CLR 458; [1979] HCA 7 Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14 Category: Sentence Parties: Environment Protection Authority (Prosecutor) Sydney Water Corporation (Defendant) Representation: Counsel: H El-Hage SC with G Marsden (Prosecutor) I Hemmings SC with J Caldwell (Defendant)

Solicitors: Environment Protection Authority (Prosecutor) Maddocks Lawyers (Defendant) File Number(s): 2022/392933

JUDGMENT 1. The Defendant Sydney Water Corporation (Sydney Water) has pleaded guilty to one offence of contravening a condition of its licence contrary to s 64(1) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act). The offence occurred on about 6 January 2022, at or near the Southern Suburbs Sewage Treatment reticulation system which includes the 750mm pressurised rising main (Rising Main) leading from sewage pumping station SP0041 at or near Elva Street, Strathfield (the incident). 2. Sydney Water is the holder of Environment Protection Licence (EPL) number 372. Condition O2.1(a) of the EPL states: 'All plant and equipment installed at the premises or used in connection with the licensed activity: a) must be maintained in a proper and efficient condition…'. The manner of breach alleged is that Sydney Water failed to maintain the Rising Main in a proper and efficient condition in that it was not maintained in such a condition that allowed sewage flows to be transported from the pumping station via the Rising Main to the Malabar Sewage Treatment Plant, thereby causing untreated sewage to discharge to the environment. 3. A plea of guilty is an admission of all the essential elements of an offence. The Prosecutor the Environment Protection Authority must establish beyond reasonable doubt any matter not otherwise agreed for the purpose of sentencing, R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ) citing R v Storey [1998] 1 VR 359 at 369 (Winneke P, Brooking and Hayne JJA and Southwell AJA).

Statement of agreed facts 1. The statement of agreed facts (SOAF) dated 21 October 2024 is set out below (annexures omitted): The Incident 2. At 8:32am on 6 January 2022, Sydney Water received a report of a sewage overflow occurring in Elva Street, Strathfield. Further inspection by Sydney Water's staff indicated that the overflow was from a 750mm rising main (Rising Main), which was carrying sewage under pressure from Sewage Pumping Station SP0041 (Pumping Station). By 12:10pm on 6 January 2022, Sydney Water's staff had ceased the overflow by diverting sewage flow to an alternative 450mm rising main (450mm Rising Main). 3. The overflow resulted in wastewater, including untreated sewage, flowing into the stormwater system, which flows into Powells Creek (the incident). The wastewater that was discharged from the Rising Main was predominantly domestic residential and commercial sewage. The estimated volume of wastewater discharged from when Sydney Water was notified of the incident to when the Rising Main was isolated is 730,000 to 1,200,000 litres. The duration of the overflow was approximately 3 hours and 38 minutes, commencing from the time that the overflow was first reported to Sydney Water until the overflow was ceased. The Defendant 4. Sydney Water is a statutory State owned corporation established under the State Owned Corporations Act 1989. As a State owned corporation, Sydney Water has all the powers and responsibilities of a natural person for or in connection with the exercise of its powers. Environment Protection Licence Number 372 5. At all material times, Sydney Water was the holder of Environment Protection Licence number 372 (the EPL) issued under the POEO Act for the scheduled activity of "Sewage treatment" at the Southern Suburbs Sewage Treatment System. A copy of the EPL current as at 6 January 2022 is at Tab 1. The licensed activity of "sewage treatment" was defined to mean: [T]he operation of sewage treatment systems (including the treatment works, pumping stations, sewage overflow structures and the reticulation system) that involve the discharge or likely discharge of wastes or by-products to land or waters. 6. For the purposes of the EPL, the premises was described in Condition A2.1 of the EPL as the "Southern Suburbs Sewage Treatment System", which included the Malabar Sewage Treatment Plant at Fishermans Road, Malabar. 7. Condition A2.2 of the EPL provided that the premises also included "the reticulation system owned and operated by the licensee that is associated with the sewage treatment plant(s) identified in condition A2.1." 8. Condition E2.1 of the EPL further defined "reticulation system" to mean "that part of the sewage treatment system which collects and transports sewage to the sewage treatment plant and includes all sewer pipes (whether greater or less than 300 mm diameter), access chambers, vent shafts, directed overflow structures and sewage pumping stations…". 9. The Rising Main formed part of the "reticulation system" and the "premises" and was used in connection with the activity of "sewage treatment". As a result, at all relevant times Sydney Water was required to maintain the Rising Main in a proper and efficient condition under condition O2.1(a) of the EPL, which states, relevantly: O2 Maintenance of plant and equipment O2.1 All plant and equipment installed at the premises or used in connection with the licensed activity: a) must be maintained in a proper and efficient condition … Powells Creek 10. Powells Creek was originally a natural creek, but was lined with concrete in the 1930s. It flows through the suburbs of Strathfield and Concord, discharging into the Parramatta River via Homebush Bay. Stormwater from Elva Street, Strathfield runs through a stormwater drain into Powells Creek. Sydney Water's wastewater networks 11. Sydney Water has 24 separate wastewater networks which are the subject of licences issued by the Prosecutor under Chapter 3 of the POEO Act. Those networks were constructed between 1888 and 2023 and service the Greater Sydney region, the Blue Mountains, Wollongong and Kiama. 12. Sydney Water's wastewater networks are comprised of approximately 26,350 km of wastewater pipes, 29 water resource recovery facilities and 695 pumping stations. A diagram of Sydney Water's wastewater networks is at Tab 2. 13. Sydney Water's wastewater networks service approximately 5,161,000 people. The Southern Suburbs Sewage Treatment System 14. One of the wastewater networks that Sydney Water owns and operates is the Southern Suburbs Sewage Treatment System. The Malabar Sewage Treatment Plant and the Malabar Wastewater System form part of the Southern Suburbs Sewage Treatment System. 15. The Malabar Sewage Treatment Plant is one of the largest primary wastewater treatment plants operated by Sydney Water, treating wastewater, including sewage, from approximately 635,000 properties across 500 square kilometres. From east to west, the catchment area reaches from Malabar to Blacktown. From north to south, the catchment reaches from Parramatta River to Campbelltown. 16. The Malabar Wastewater System is a reticulation system associated with the Malabar Sewage Treatment Plant. It includes a number of assets, including the Pumping Station, the Rising Main and the 450mm Rising Main. The Pumping Station 17. A sewage pumping station is a storage and collection chamber that lifts and distributes wastewater, including sewage, when it cannot be carried by gravity. 18. The Pumping Station is situated at Underwood Road, Homebush. It was originally constructed in 1913 and was renewed in 1965 and 1992. 19. The Pumping Station forms part of the "reticulation system" the subject of Condition A2.2 and consists of a number of components, including two wet wells and four pumps which operate to pump sewage under pressure. 20. The Pumping Station pumps wastewater, including sewage, into the Rising Main. On occasions, it also pumps wastewater, including sewage, into the 450mm Rising Main. 21. Sydney Water has been responsible for the management and maintenance of the Pumping Station since 1994. The Rising Main 22. A rising main, also known as a pressure main, is a pipeline used to convey wastewater, including sewage, under pressure. A rising main can be contrasted with a gravity main, which carries sewage downstream under the influence of gravity. 23. In 1965, the Rising Main was reconstructed. Since that time, the various sections of the Rising Main have been reconstructed as follows: Prior to Sydney Water's management of the Rising Main a. Pomeroy Steet to Allen Street: re-constructed in 1965 (using Mild Steel Cement Lined pipe material). b. Western Highway to Margaret Street: re-constructed in 1965 (using Mild Steel Cement Lined pipe material). The incident occurred approximately 2,458m downstream of the Pumping Station in the section of the Rising Main located between Western Highway and Margaret Street. c. Margaret Street to Outlet: re-constructed in 1965, gravity section relined in 1998 (using Mild Steel Cement Lined pipe material). d. Allen Street to Western Highway: re-constructed in 1981 (using Mild Steel Cement Lined pipe material). During Sydney Water's management of the Rising Main e. Pumping Station to Pomeroy Street: re-constructed in 2013 (using Ductile Iron Cement Lined pipe material). 24. The Rising Main is approximately 3.2kms in length and runs from the Pumping Station at Underwood Road, Homebush to a sewer maintenance hole (Asset 1320299) adjacent to 20-22 Morwich Street, Strathfield. It travels under: a. rail corridors between Homebush and Strathfield; b. large freeways, including the M4 motorway and Parramatta Road; c. other public roads; d. several retail stores; e. residential houses; and f. Powells Creek canal. 25. A map showing the path of the Rising Main is at Tab 3. 26. The Rising Main in the vicinity of Elva Street, Strathfield is constructed of a 750mm Mild Steel Cement Lined pipe, which consists of the following components (as shown in the schematic and picture below): a. a mild steel pipe; b. an internal lining (consisting of a cement layer and bituminous layer); and c. an external lining (consisting of a gunite layer and steel wire reinforcing). 450mm Rising Main 27. The Pumping Station ordinarily pumps wastewater, including sewage, under pressure through the Rising Main. In the event the Rising Main needs to be taken offline, wastewater (including sewage) is diverted to the 450mm Rising Main. 28. The 450mm Rising Main has less capacity than the Rising Main. The Avoid Fail framework and risk rankings 29. Sydney Water has a number of general policies, plans and procedures which relate to the management of, the frequency of maintenance inspections of, and/or the manner of maintenance inspections of, plant and equipment including, or similar to, the Rising Main: a. The Rising Main is classified as an "Avoid Fail" asset under Sydney Water's document titled "Sewer Pressure Main Renewal Decision Framework", dated July 2009. b. The Rising Main is also classified as "Avoid Fail (Critical)" for the purpose of Sydney Water's document titled "Sewer Mains Asset Master Plan", dated 19 July 2019, which recommends that sewers of this category undergo "CCTV inspection, Level 1 inspection, Level 2 inspection" every 10 year cycle. Sewer mains of the "Critical" category are described as requiring "a more proactive management approach based on risk assessment by actively monitoring their condition, as they have significant consequences if there is a failure e.g. prolonged discontinuity of service, greater environmental impact or expensive structural repair." 30. In 2014, Sydney Water's document titled "SPM Risk Ranking Guide (2014)" ranked the Rising Main as No. 1 of approximately 700 of Sydney Water's rising mains. That ranking was determined by Sydney Water in accordance with its document titled "Guideline for SPM Risk Prioritisation Version 2.1", dated December 2013, based on the likelihood and possible consequences of the Rising Main's failure. However, this risk ranking incorrectly identified the Rising Main as cast iron and built in 1936, which incorrectly heightened the estimate of the Rising Main's failure because the Rising Main would have reached its nominal end of life and there was no lining indicated on the purported cast iron pipe. 31. In 2021, the risk rankings for Sydney Water's sewer pressure mains, including its raising mains, were reassessed on an individual asset level, with numerous "assets" comprising a length of a sewer pressure main. Previously, Sydney Water calculated risk rankings for sewer pressure mains based on their entire length level. This new approach allowed greater granularity in ranking Sydney Water's sewer pressure mains at an asset level. As a result, at the time of the offence, the part of the Rising Main where the incident occurred was ranked No. 438 of 16,421 sewer pressure main assets owned and managed by Sydney Water. The 2021 risk ranking correctly identifies the constituent materials and date of construction of the part of the Rising Main where the incident occurred. Failure history of the Rising Main 32. Between 1 January 2000 and the date of the incident, there were seven failures of the Rising Main, one of which took place in the part of the Rising Main where the incident occurred, as follows: a. On 23 February 2006, the Rising Main failed at Mason Park Underwood Road, Homebush, causing approximately 50,000 litres of wastewater to overflow. The cause is understood to be "external corrosion". This failure occurred in the section of the Rising Main from the Pumping Station to Pomeroy Street (which was re-constructed after the failure in 2013). b. On 21 October 2008, the Rising Main failed at Mason Park Underwood Road, Homebush, causing an unknown volume of wastewater to overflow. The cause is unknown. This failure occurred in the section of the Rising Main from the Pumping Station to Pomeroy Street (which was re-constructed after the failure in 2013). c. On 5 January 2010, the Rising Main failed at Pomeroy Street, Homebush, causing an unknown volume of wastewater to overflow. The cause is unknown. This failure occurred in the section of the Rising Main from the Pumping Station to Pomeroy Street (which was re‑constructed after the failure in 2013). d. On 20 October 2012, the Rising Main failed at the end of Malta Street, Strathfield, causing approximately 171,000 litres of sewage to overflow. The cause was subsequently understood by Sydney Water to be "external corrosion" (although some Sydney Water documentation indicates that the failure mode may have been internal corrosion). This failure occurred in the section of the Rising Main from Pomeroy Street to Allen Street (which was reconstructed in 1965) (the 20 October 2012 Failure). e. On 17 July 2014, the Rising Main failed at 26 Pomeroy Street, Homebush, causing approximately 171,000 litres of wastewater to overflow. The cause is understood to be external corrosion. This failure occurred in the section of the Rising Main from Pomeroy Street to Allen Street (which was re-constructed in 1965). f. On 24 November 2016, the Rising Main failed at 21B Elva Street, Strathfield, causing approximately 489,000 litres of wastewater to overflow. The cause is understood to be invert erosion / corrosion. This failure occurred in the section of the Rising Main from Western Highway to Margaret Street (which was reconstructed in 1965) (the 24 November 2016 Failure). The 24 November 2016 failure occurred approximately 192 metres from the location of the incident. g. On 24 March 2021, the Rising Main failed at Allen Street, Homebush, causing approximately 3,000,000-5,000,000 litres of wastewater to overflow. The cause is understood to be invert erosion / corrosion. This failure occurred in the section of the Rising Main from Allen Street to Western Highway (which was re-constructed in 1981) (the 24 March 2021 Failure). 33. The incident, the 24 November 2016 Failure and the 24 March 2021 Failure all involved failures that were "identical in nature". CCTV inspection following the 24 November 2016 failure 34. On 28 November 2016, Sydney Water carried out a CCTV inspection of the Rising Main. A copy of the 2016 CCTV inspection report is at Tab 4. A copy of the 2016 CCTV inspection video footage is on a USB at Tab 5. A copy of screenshots captured from the 2016 CCTV footage is at Tab 6. CCTV inspection following the 24 March 2021 failure 35. On 26 March 2021, Sydney Water carried out a CCTV inspection of the Rising Main. The 2021 CCTV inspection occurred along a 113.55m length of the Rising Main in the vicinity of 6 Allen Street, Homebush near the 24 March 2021 Failure location (where the Rising Main had been excavated following the 24 March 2021 Failure). The 2021 CCTV inspection report noted "deposits on the wall" within the Rising Main. A portion of the survey was required to be abandoned due to high water levels in the Rising Main. A copy of 2021 CCTV inspection report is at Tab 7. Management and maintenance of the Rising Main General 36. Sydney Water has been responsible for the management, operation, inspection, maintenance and repairs of the Rising Main since 1994. Inspection schedule for the Rising Main 37. At the time of the incident, Sydney Water had an inspection and maintenance schedule for the Rising Main that included: Assessment type Inspection Details Air valve/fitting inspection 2 yearly Level 2 Air Valve inspections program K9 (dog) odour detection 6 monthly canine inspection on some sections of the Rising Man

38. Water Services Association of Australia 'Condition Assessment and Risk Management Guidelines: Rising Main Subsystems' (2013) describes the general process for inspecting various types of valves: a. Valve inspections involve a number of stages. First, a valve is identified as a candidate for condition assessment, often through maintenance schedules, through the use of risk-based prioritisation approaches or in response to an operational requirement. Secondly, the valve is located and accessed, which may involve using specialised location tools, survey techniques and/or excavation equipment. Thirdly, the valve is inspected, either visually or using an inspection technology. The inspection may also include a functional assessment, such as testing the operation of the valve. Fourthly, the valve is assessed in relation to a benchmark, often with reference to functional requirements, such as whether the valve is seized or functions adequately b. Valve inspections often involve simple techniques in the first instance, such as visual inspection and exercising of the valve, with any follow-up work based on the results of these initial inspections. Follow-up work involves specialist skills, either to repair valves or to apply more sophisticated location or inspection tools. Internal components may also be inspected through a strip-down of the valve. Other tasks may be carried out as part of the inspection procedure, including confirming pipe attributes, assessing changes to pipeline risk and collecting auxiliary data through undertaking site observations, assessing whether there are access issues and assessing the pipe condition. 39. The Water Services Association of Australia Guidelines also describe the process for air valve inspections: a. Air valves are inspected by opening the cover and checking the operational status of the valve: the condition is then recorded. Some air valve inspections also involve gas monitoring. 40. K9 (dog) odour detection assessments involve the examination of aerial images along the route of a pipe to identify greener areas that may be indicative of additional moisture in the ground from a wastewater leak. Canines who have been trained both to recognise odours from wastewater and to indicate when they sense such odours, are then walked along the route of any identified section of the pipe. A field report is then completed with photographs taken of any areas where positive odours are identified. 41. The K9 (dog) odour detection assessment is a non-visual assessment technique to detect odour and is not a visual inspection of the inside of a rising main and, as such, is not able to detect anomalies or degradation in the internal sections of the Rising Main. 42. In addition, condition assessments using various techniques were undertaken on the Rising Main, including: The proposed renewal of the Rising Main 43. In August 2017, following the 24 November 2016 Failure, Sydney Water was aware that there were potential issues with the condition of the Rising Main in the vicinity of the incident and that the Rising Main required further investigation ahead of a potential renewal of the Rising Main. 44. From: a. 1 April 2021, Sydney Water's Lead Networks Program Engineer was of the view that, based on CCTV and his own inspection, there was a thinning of the cement lining of the Rising Main, especially at the pipe invert, near the location of the 24 March 2021 Failure. He considered that this was consistent with the condition of the Rising Main at the location of the 24 November 2016 Failure, 1km downstream of the 24 March 2021 Failure, and therefore "would conclude that the entire pipeline would suffer from the same deterioration"; b. 1 April 2021, Sydney Water considered that there was a need to expedite the Rising Main renewal project to the next stage by engaging in detailed planning; and c. 8 October 2021, Sydney Water was aware from CCTV inspection that there was extensive internal corrosion along the pipe invert of the Rising Main near Allen Street, Homebush. In a Needs Approval Business Case, Sydney Water stated that it was strongly believed that the entire length of the Rising Main was subject to the same corrosion and that this would more than likely lead to future failures. Detailed chronology of the incident 6 January 2022 45. At 8:32am on 6 January 2022, Sydney Water received a report of water flowing onto the road at Churchill Road, Strathfield. Sydney Water was notified of heavy water leaking in the middle of Elva Street, between Churchill Avenue and Albert Road. The reporter said that water was coming out at speed and there didn't appear to be any property damage, but the water was causing a hazard to traffic by washing sand onto the road. 46. At 9:24am, a Sydney Water crew member arrived on site to investigate the overflow and identified the overflow as sewage and its source as the broken Rising Main in the vicinity of Elva Street, due to sewage coming out from a split in the road. Traffic control were requested to attend the site to assist with traffic management around the affected area. 47. At 10:09am, Sydney Water notified the EPA of the incident via the Environment Line. 48. At 10:39am, another Sydney Water crew arrived on site to assist. They erected advisory signage around the area affected by the overflow and installed a Water-Gate containment within Powells Creek canal at the corner of Beresford Road and Elva Street. A second Water-Gate containment was also installed in Powells Creek canal near Lemnos Street, North Strathfield, downstream of the first Water-Gate. 49. At 10:55am, Sydney Water's Field and Sampling Team (FST) arrived on site and conducted an initial field assessment. They undertook initial sampling and field tests and provided the following observations and findings: a. Signage was observed in place at the break location and adjacent to Powells Creek canal. Elva Street had been closed off with traffic control in place. b. The Rising Main was broken and sewage and silt were observed on the road surface for approximately 40-50m before entering the roadside gutter and underground stormwater drains. c. Site 1 (Powells Creek at the rear of 8-10 Elva St) at green electrical box (inflow) and Site 2 (Powells Creek upstream of Allen Street) returned a high ammonia reading and had strong sewage odour, turbid black water with silt. d. Site 3 (unnamed stormwater canal 10m upstream of Powells Creek confluence at rear of 56 Ismay Avenue) returned a negative ammonia reading and had no sewage odour. e. Site 4 (Powells Creek 60m north-east of 44 Ismay Avenue) returned a moderate ammonia reading and had moderate sewage odour. f. Site 5 (Powells Creek from the footbridge 20m south west of Powells Creek Tennis Centre) and Site 6 (Mason Park Wetlands 60m west of 19 Brussels Street) (precautionary) were not indicative of sewage based on field tests and observations. g. The FST field sampling summary is recorded in the table below: Site # Site description Ammonia result Sewage odour 1 Powells Creek at the rear of 8-10 Elva St at green electrical box (inflow). High Strong 2 Powells Creek upstream of Allen Street. High Strong 3 Unnamed stormwater canal 10m upstream of Powells Creek confluence at rear of 56 Ismay Avenue (upstream) Negative Nil 4 Powells creek 60m north east of 44 Ismay Avenue. Moderate Moderate 5 Powells Creek from footbridge 20m southwest of Powells Creek Tennis Centre. Negative Nil 6 Mason Park Wetlands 60m west of 19 Brussels Street (precautionary). Negative Nil

50. At 11:48am, a Sydney Water Network Operator attended at Elva Street and began formulating a site-specific clean-up plan. Crews attended to the Pumping Station to organise the diversion of flows into the 450mm Rising Main. Tankers were arranged and attended the site to reduce flows at the Pumping Station whilst the smaller 450mm Rising Main was operating. Flows were also monitored by Sydney Water's System Operations Centre. Additional traffic control was ordered to attend. 51. At 12:10pm, the broken Rising Main was isolated, and the overflow ceased. Tankers were utilised at the Pumping Station to reduce flow as the Pumping Station remained operational using the 450mm Rising Main, which has less capacity than the Rising Main. 52. At 1:33pm, Sydney Water upgraded the status of the incident to 'Significant' due to its potential impact on customers and the environment. 53. At 1:55pm, a Sydney Water crew member attended the site and provided an update which included the following information: a. A third Water-Gate containment was installed in Powells Creek canal downstream from the second Water-Gate containment location. Advisory signage was also installed at this location. b. Crews were unable to install containment further downstream of the third Water-Gate containment due to safety reasons and the tidal nature of Powells Creek. c. A vacuum truck had attended the site to suck out silt on the roadway of Elva Street. d. Crews had commenced site clean-up activities as per the site specific clean-up plan. 54. At 2:54pm, a Sydney Water Network Repairs Team arrived on site to scope the repairs of the broken section of the Rising Main. Crews commenced excavation of the affected part of the Rising Main. 55. At 5:15pm, a Sydney Water Network Technician attended the site and provided an update that included the following additional information: a. Aqua Sac containment (self-inflating "sandbags" which absorb water) would be installed at a stormwater pit at Elva Street. b. Tankers would be on standby overnight and controlling inflows to the Pumping Station. c. Tankers would continue to attend the site the following day. d. Traffic control would remain on site. e. Repairs on the broken Rising Main were continuing. 7 January 2022 56. At 12:29pm on 7 January 2022, a Sydney Water Network Operator provided the following update: a. Crews had installed a fourth Water-Gate in Powells Creek canal near 17 Hamilton Avenue, North Strathfield, downstream of the third Water‑Gate. b. Crews had installed 2 pumps and commenced pumping operations of Powells Creek, including brooming of the creek substrate. c. Crews had removed 100 bags of sand and silt from Powells Creek canal and would continue to do so until the end of the day. d. Crews were using the natural background flow of water from recent heavy rainfall for flushing in Powells Creek canal. e. Crews had installed 2 pumps at the third Water-Gate containment and were pumping out into the designated nearby maintenance hole. 57. During the day, Sydney Water crews continued clean-up activities. Pump and flush operations were continued throughout the day, with pumping occurring from three containment locations. Part of Powells Creek canal was also broomed in the process. In total, Sydney Water crews bagged and removed approximately 250 bags of silt, sand and debris before continuing with pump and flush operations. 58. At 6:00pm, initial excavation works were completed. Excavation shoring was installed shortly afterwards. There had been a delay in these excavation works due to other infrastructure in close proximity to the Rising Main, including power lines (Ausgrid), disused pipes and other sewer infrastructure. 59. At 6:49pm, sections of the Rising Main were inspected and indicated that a longitudinal split was present on the Rising Main. An additional excavator and vacuum truck were requested to attend the site. Excavation of the broken Rising Main continued. 8 January 2022 60. At 6:45am on 8 January 2022, multiple clean-up crews attended the site and continued pump and flush operations in Powells Creek canal. 61. At 9:11am, a Sydney Water Network Operator provided the following update: a. Due to heavy downfall overnight, 2 Water-Gates were washed downstream in Powells Creek canal, which were retrieved. b. There was no trace of sand in Powells Creek canal or the stormwater drains. c. There was heavy flow in Powells Creek canal due to run off from the connected stormwater drains. d. Crews would do precautionary pumping at 4 sites, due to slight odour in some areas of Powells Creek canal. e. Repairs on the Rising Main were ongoing. f. All bags of contaminants had been removed from the site and pumping out was continuing. 62. On 8 January 2022, the excavation and cutting of the Rising Main was completed. 9 January 2022 63. At 10:44am on 9 January 2022, clean-up was complete and a Sydney Water Network Operator validated the clean-up as per the site-specific clean-up plan. 64. At 11:22am, a new section of the Rising Main was installed and welded in place. 65. At 3:37pm, the Rising Main was returned to normal operation. Traffic control at Elva Street remained in place. Elva Street was closed to vehicles, with pedestrian access only. 10 January 2022 66. On 10 January 2022, Sydney Water commenced backfilling of the trench from where the Rising Main was excavated. It completed its restoration work. 67. On 10 January 2022, Elva Street was re-opened to public traffic. 27 January 2022 68. On 27 January 2022, a Sydney Water employee carried out an inspection of the broken portion of Rising Main that was excavated. The Inspection Report indicated that the possible cause of the Rising Main's failure was "Cement lining deterioration leading to rapid internal corrosion, split and perforations of the metal pipe wall at the pipe invert". A copy of the Inspection Report is at Tab 8. FST Samples 69. The FST carried out sampling in the vicinity of the incident and Powells Creek on 6 January 2022 and in the weeks following, which included sampling for faecal coliforms and enterococci (which are indicators of sewage contamination in water). A copy of the FST sampling results on 6 January 2022 is at Tab 9. Photographs 70. A series of photographs are included at Tab 10. The photos depict observable impacts of the Incident and descriptions are outlined below. [List contained in the SOAF omitted.] The cause of the incident 71. The mode of failure of the Rising Main was a failure at the pipe invert. However, the precise process or mechanism of the failure of the Rising Main is not certain and the cause of the failure of the Rising Main is uncertain. 72. The failure of the Rising Main may have been caused by: a. corrosion underneath both the intact cement lining and a dense ferrous sludge as a result of ferrous chloride dosing (the theory of Professor Marjorie Valix, Professor in Chemical Engineering); b. acid attack as a result of ferrous chloride dosing, resulting in the degradation and weakening of the cement layer and the presence of debris in the sewage, causing erosion and corrosion over time (the theory of Edgar Mendez, expert metallurgist); or c. erosion of the internal cement lining, followed by erosion of the steel at the pipe invert (the theory of Phillip Ferguson, expert metallurgist). 73. At the time of the incident, on the basis of the investigations it had undertaken, Sydney Water could not have predicted: a. that a failure would occur at the precise location of the incident; or b. the specific causal mechanism of any such failure. Control 74. Sydney Water had control over the cause which gave rise to the offence, in that it had control over the Rising Main and its maintenance, and was the only person who had the legal, physical and technical ability to prevent the failure of the Rising Main. Foreseeability of harm to the environment 75. Sydney Water could reasonably have foreseen: a. that harm could be caused to the environment by a failure to maintain the Rising Main in a proper and efficient condition; and b. if the Rising Main failed, there was a risk of harm, or likelihood of harm, to the environment. Practical measures 76. The practical measures Sydney Water could have taken to prevent or to mitigate the harm to the environment were: a. to replace that part of the Rising Main where the failure occurred; b. to commission in a more timely manner, in response to the 24 November 2016 Failure, research to examine the physical and chemical causes of failures of rising mains at the invert. Prior convictions for environmental offences 77. On 5 July 2023, Sydney Water was convicted of three offences against s 120 of the POEO Act in relation to the overflow of about 16,000,000 litres of sewage into Flat Rock Creek at Naremburn between 26 and 30 October 2020 (Environment Protection Authority v Sydney Water Corporation [2023] NSWLEC 68). Sydney Water was ordered to pay a total monetary penalty of $365,625. 78. On 1 February 2023, Sydney Water was convicted of one offence against s 120 of the POEO Act in relation to the overflow of at least 282,000 litres of sewage into Prospect Creek at Carramar from about 15 to 16 January 2019 (Environment Protection Authority v Sydney Water Corporation (No 2) [2023] NSWLEC 2). Sydney Water was ordered to pay a total monetary penalty of $200,000. 79. On 9 March 2021, Sydney Water was convicted of two offences against s 120 of the POEO Act in relation to overflows of approximately 2,800,000 litres of sewage into Toongabbie Creek near the confluence with Parramatta River and Darling Mills Creek between 21 and 27 October 2018 (Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 17). Sydney Water was ordered to pay a total monetary penalty of $175,500. 80. On 28 January 2021, Sydney Water was convicted of one offence against s 64(1) of the POEO Act for contravention of condition O3.1 of Environment Protection Licence 1728 and one offence against s 91(5) of the POEO Act for failing to clean up an overflow of approximately 57,000 litres of raw sewage into an unnamed creek at Bangor near Sutherland from about 14 September to 19 October 2018 (Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 4). Sydney Water was ordered to pay a total monetary penalty of $185,000. 81. On 11 November 2020, Sydney Water was convicted of one offence against s 120 of the POEO Act for pollution of waters between about 29 and 30 July 2018 and one offence against s 64(1) of the POEO Act for contravention of condition O3.1 of Environment Protection Licence 378 from about 26 July to 17 August 2018 (Environment Protection Authority v Sydney Water Corporation [2020] NSWLEC 153). Sydney Water was ordered to pay a total monetary penalty of $145,000. 82. On 16 July 2019, Sydney Water was convicted of two offences against s 120 of the POEO Act and an offence against s 64(1) of the POEO Act for contravention of condition O1.1 of Environment Protection Licence 372 in relation to incidents at the Southern & Western Suburbs Ocean Outfall Sewer in Mill Stream, Botany between 22 May and 16 June 2017 (Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100). Sydney Water was ordered to pay a total monetary penalty of $269,500. 83. On 21 April 2015, Sydney Water was convicted of an offence against s 120 of the POEO Act and an offence against s 64(1) of the POEO Act for contravention of condition O2.1 of environment protection licence 372 in relation to an incident at the Malabar Waste Water Treatment Plant between about 5 and 7 September 2013 (Environment Protection Authority v Sydney Water Corporation [2015] NSWLEC 80). Sydney Water was ordered to pay a total monetary penalty of $157,500. 84. On 21 July 2000, Sydney Water was convicted of an offence of pollution of waters contrary to s 16(1) of the then Clean Waters Act 1970 in respect of an overflow of sewage from a manhole in Helensburgh to Camp Creek on 12 October 1998 (Environment Protection Authority v Sydney Water Corporation [2000] NSWLEC 156). Sydney Water was ordered to pay a total monetary penalty of $40,000. 85. On 3 March 2000, Sydney Water was convicted of an offence of pollution of waters contrary to s 16(1) of the then Clean Waters Act 1970, during the operation of its West Camden Sewerage Treatment Plant, on 22-23 October 1998 (Environment Protection Authority v Sydney Water Corporation [2000] NSWLEC 80). About 7,000- 8,000 litres of aluminium sulphate was discharged into a tributary of a creek. Sydney Water was ordered to pay a total monetary penalty of $30,000. 86. On 19 March 1999, Sydney Water was convicted of an offence against cl 17D(9) of the then Pollution Control Act 1970 for contravention of a condition of a pollution control licence requiring it to maintain and operate plant and equipment in a proper and efficient condition on 7 March 1995 (Environment Protection Authority v Sydney Water Corporation [1999] NSWLEC 60). The incident involved a failure to maintain penstock controls in an efficient manner, by not detecting that a tie line to emergency power had been connected to the main switchboard in the reverse order, resulting in a cliff face discharge at North Head Sewage Treatment Plant. Sydney Water was ordered to pay a total monetary penalty of $100,000. 87. On 18 December 1996, Sydney Water was convicted of an offence of pollution of waters contrary to s 16(1) of the then Clean Waters Act 1970 in respect of an overflow of sewage from a sewage pumping station in Penrith on about 24 May 1995 (Environment Protection Authority v Sydney Water Corporation Ltd (1996) 93 LGERA 43). Sydney Water was ordered to pay a total monetary penalty of $7,500.

Evidence of Ms Beer 1. In an affidavit dated 24 May 2024 Ms Beer Head of Product and Infrastructure Performance at Sydney Water set out Sydney Water's policy and practices. Sydney Water provides the essential service of sewage collection, transport, treatment and disposal across its areas of operations. 2. Sydney Water maintains an Environmental Management System (EMS) which provides a framework for managing environmental risk across the organisation including its wastewater network. The EMS is certified to international standard ISO 14001:2015 by BSI Group ANZ Pty Ltd an external certification body. The EMS supports the development, implementation, monitoring and review of Sydney Water's environmental objectives, targets and actions. Foundations of the EMS are Sydney Water's environmental policy and environment plan. The environmental policy describes the organisation's commitment to identifying, assessing and managing environmental risks, fulfilling relevant environmental compliance obligations, continually improving its environmental performance and delivering its services in compliance with the principles of ecologically sustainable development as required by the Sydney Water Act 1994 (NSW). The environmental plan identifies the actions the organisation takes to support its environmental objectives and targets set out in Sydney Water's corporate strategy. The adequacy and effectiveness of the EMS is monitored through management reviews conducted at planned intervals. A summary of Sydney Water's EMS performance is compiled annually and presented to Sydney Water's steering committee. 3. Sydney Water also maintains an Asset Management System, a Quality Management System (QMS) and a Safety Management System which are certified to international standards ISO 55001:2014, ISO 9001:2015 and ISO 45001:2018 respectively. 4. Sydney Water monitors its environmental performance and compliance with relevant legislation and regulation at the executive, business unit and team/operational level using environmental performance indicators. Environmental performance and compliance with relevant legislation is also monitored and reported to the executive and board via monthly corporate performance reports. Where non-conformances and improvements are identified, Sydney Water implements corrective actions and monitors the progress of those actions under its QMS. 5. The condition assessments of rising mains are procured under professional services contracts. Sydney Water procures and runs any programs of work that require specialist contractors through competitively tendered contracts. It is not possible to directly procure or engage any providers of goods or services at a value greater than $50,000. This is part of Sydney Water's commitment to evidencing to both its pricing regulator, the Independent Pricing and Regulatory Tribunal, and the New South Wales Auditor General, that it is spending its funds prudently. 6. On 30 June 2018 the professional services contracts in place to undertake condition assessments of critical water main and sewer rising mains expired. It was necessary to carry out a new procurement process. At that time Sydney Water was in the process of transforming its delivery model for its wastewater assets through a series of professional services contracts under which three regions or areas would be defined and three regional consortia would be appointed to perform maintenance and renewal tasks for each region or area. This transformation of its delivery model involved a market engagement process with major construction, maintenance and engineering providers to form Regional Delivery Consortia (RDC). This new model was being developed at the time to potentially cover such services as condition assessments. Ultimately the time taken to procure the new model for RDCs (which commenced on 1 July 2020) meant that a separate professional services contract was entered into for condition assessments of critical water main and sewer rising mains. That contract was entered into in January 2019 commencing on 20 March 2019 for a term of four years. 7. Decisions to renew or amplify a rising main are complex. Ms Beer identified in her affidavit 11 factors that need to be considered. 8. Between July and August 2020, Sydney Water sought to improve its management of pressure mains, including rising mains, by appointing a dedicated resource to manage the condition assessment program for those assets and to identify potential candidates for amplification or renewal. 9. Sydney Water sincerely regrets the commission of the offence. Ms Beer expressed remorse and contrition on behalf of Sydney Water for the incident and any impact it has had on the community and the environment. Sydney Water has been conscious to learn from past failures and ensure that systems are in place to minimise the risk of them occurring in the future. Since 2019-2020 there has been a steady downward trend in the number of Sydney Water's reportable overflow incidents. 10. Sydney Water invests in initiatives to improve its environmental performance and reduce the risk of overflows from its wastewater networks including but not limited to a root cutting program, maintenance hole inspection program, artificial intelligence machine learning Closed Circuit Television (CCTV) program, K-9 scent detection program, investing in remote sensors, stormwater renewals, flood mitigation and pollution removal. 11. Sydney Water conducts extensive programs for the community to educate people about water, the importance of healthy waterways and the importance of maintaining a high standard of environmental care. These initiatives include Making Paramatta River swimmable by 2025, Urban Plunge, real time water quality monitoring for recreational use of Berowra, launching a source control program to reduce fats, oils and grease in the network, support for swimming beaches, investing in water sensitive urban design, reinstating more natural conditions in urban stormwater channels, provision of portable water solutions, conducting water efficiency and waste disposal campaigns and providing community grants. Sydney Water is also responsible for the Sydney Water Innovation, Research and Deployment Plan, Sydney Water Innovation Festival, Sydney Water Youth Eco Summit 2024 and Sydney Water's Environment Week.

Oral evidence 1. In cross examination Ms Beer agreed that CCTV was used in November 2016 after a failure of the Rising Main (the 24 November 2016 failure). CCTV was used to check on the condition of the pipe to determine how much of the pipe needed to be replaced to effect repair. CCTV is used if feasible depending on the condition of the pipe and operational requirements for the pipe as part of an operating network. There were inspections of both sides of the failed pipe in November 2016 (the 2016 CCTV inspection). Ms Beer did not know for how long on each side as she is not a technical expert. The 2016 CCTV inspection report attached to her affidavit identified distances of various lengths. She agreed various observations were identified in the report which included reference to possible cracks. When asked if this was a cause for concern Ms Beer stated that they would have paid attention to it, the footage is tricky and there would have been a lot of possibilities. It would have been taken into account by the experts who know what acceptable operating conditions are, tempered with other information the experts know to judge how concerned they should be. Ms Beer did not accept that a crack in the pipe is an unacceptable operating condition given the level of uncertainty that had to be dealt with and given that pipes are underground. The team got in touch with Pure Technologies who conducted earlier pipediver and smart ball inspections on the Rising Main (SOAF par 42) to try and corroborate those findings. These reports were prepared two years before the 2016 CCTV inspection. These tests are designed to broadly check the condition of the pipe. Ms Beer did not know if Pure Technologies looked at the CCTV footage. She assumed that Sydney Water would be trying to verify whether possible cracks shown in the CCTV footage had been picked up somewhere else before taking definitive action in that area. Ms Beer agreed in her chronology of events that no CCTV inspection was carried out on the Rising Main (3.2km) between November 2016 and 24 March 2021. 2. In July 2020 Sydney Water initiated a planning assessment to determine whether or not the Rising Main should be amplified by which she meant replaced with a pipe of a larger diameter. Between December 2016 and July 2020 specialist contractor contracts had to be investigated and renewed and another priority rising main which had no backup required urgent attention. A funding request was made to carry out investigations of the part where the incident occurred. Due to funding processes including Independent Pricing and Regulatory Tribunal oversight before funding for capital works can be sought Sydney Water must scope the project properly. A project initiation is the first step to scope the need and its urgency. The need is approved after a lengthy scoping process. No work was done in 2018 on the Rising Main. In 2019 scoping was done and Professor Valix was employed on 1 July 2020 to undertake research and examine the corrosion mechanisms of failures of sewer rising mains at the invert. Time was taken to identify her as a suitable expert. Ms Beer did not accept that she could have been employed earlier than 1 July 2020. By the preparation of a planning assessment report in July 2020 concerns were expressed about the state of the Rising Main citing the 2016 CCTV inspection noting there was inconclusive data. As it is very difficult to inspect pipes in an operating system various methods have to be employed. 3. Between July and August 2020 Sydney Water implemented improved management systems for rising mains by appointing a dedicated response to manage the condition assessment programs for those assets and to identify pipes for potential amplification renewal. 4. Sydney Water officers considered there was a high risk of specified consequences if a failure occurred. (No statement that a high risk of failure appears in any Sydney Water documents). Sydney Water determined that the Rising Main should be renewed as part of a proposal for amplification of the system. In late 2020 Sydney Water determined to separate the Rising Main renewal from the overarching amplification proposition. The 2014 risk ranking of the Rising Main as no 1 out of 700 of Sydney Water's rising mains was based on the incorrect assumption about what material the pipe was built from and its age. (This was updated in 2021 to no 438 out of 16,421 after reassessment, see SOAF par 31). As of November 2020 after the initiation of the planning assessment had been undertaken there was a risk of future failure within the Rising Main. Renewal of a rising main takes some five to six years. Some consideration was given to using a liner or placement of a liner internally after the failure of the Rising main on 24 March 2021 (the 24 March 2021 failure). Approval for steps to be taken to commence the renewal process occurred on 14 July 2022. The approval documents refer to the prosecution the subject of these proceedings. Part of the impetus for urgency for commencing the renewal process was the action taken by the Environment Protection Authority.

Purposes of sentencing 1. Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) identifies the purposes of sentencing. It states: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. 1. Section 21A of the CSP Act identifies numerous matters which a court must take into account if relevant when sentencing including in relation to aggravating (s 21A(2)) and mitigating (s 21A(3)) factors. 2. In reaching a decision on the appropriate penalty, the Court's consideration of the subjective and the objective circumstances of the offence is informed by the context of the relevant legislative framework aimed at environmental protection, see eg Director-General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 (Director-General v Rae) at [15].

Objective circumstances 1. The contravention of an EPL in relation to offences under s 64 of the POEO Act is serious because it involves a breach of public trust, Environment Protection Authority v Port Kembla Copper Pty Ltd [2003] NSWLEC 256 at [57]. Offences that undermine the integrity of the regulatory system are objectively serious, Director-General v Rae at [19].

The nature of the offence 1. The degree to which a defendant's conduct offends against the legislative scheme under which an offence arises is relevant to sentencing for environmental offences. The POEO Act objects include: 3 Objects of Act The objects of this Act are as follows— (a) to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development, (b) to provide increased opportunities for public involvement and participation in environment protection, … (d) to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following— (i) pollution prevention and cleaner production, (ii) the reduction to harmless levels of the discharge of substances likely to cause harm to the environment, … (iv) the making of progressive environmental improvements, including the reduction of pollution at source, (v) the monitoring and reporting of environmental quality on a regular basis, ... 1. In Sch 6 Dictionary the following definitions appear: air impurity includes smoke, dust (including fly ash), cinders, solid particles of any kind, gases, fumes, mists, odours and radioactive substances. … environment means components of the earth, including— (a) land, air and water, and (b) any layer of the atmosphere, and (c) any organic or inorganic matter and any living organism, and (d) human-made or modified structures and areas, and includes interacting natural ecosystems that include components referred to in paragraphs (a)–(c). … harm to the environment includes any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution. … pollution means— (a) water pollution, or (b) air pollution, or (c) noise pollution, or (d) land pollution. 1. As the Prosecutor submitted the legislative scheme reflected in the objects and operative provisions of the POEO Act requires that proper and strict precautions be taken by those whose activities may cause proscribed pollution. The adoption of that legislative scheme reflects a stern policy against pollution on the part of the community, Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 (Axer) at 359 (Mahoney JA). Maintenance of plant and equipment in a proper and efficient condition is vital to prevent pollution, Environment Protection Authority v Sydney Water Corporation [2015] NSWLEC 80 at [54]. Failing to maintain plant and equipment in a proper and efficient condition undermines the statutory scheme. To do otherwise is contrary to the statutory purpose enshrined in s 3 of the POEO Act. 2. As found by Basten JA in Bartter Enterprises Pty Ltd v Environment Protection Authority [2022] NSWCCA 43 at [24] (Dhanji and Davies JJ agreeing): [24] … the phrase "proper and efficient" in condition O2.1 must be understood as referring to the maintaining of plant and equipment and the use of plant and equipment having regard to possible environmental consequences arising from failure to maintain or use the plant and equipment in such a way as to minimise or avoid those risks …

Maximum penalty 1. The maximum penalty for a corporation for a breach of s 64(1) of the POEO Act at the time of the offence was $1,000,000. The maximum penalty is a public expression by Parliament (and, by extension, the general community) of the seriousness of the offence. The maximum penalty serves as a yardstick and a basis for the comparison between the case before the court and the worst case, Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [31] (Gleeson CJ, Gummow, Hayne and Callinan JJ). The gravity of any particular offence should be measured by reference to the range of penalty available, Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 (Camilleri's) at 698 (Kirby P, Campbell and James JJ agreeing).

State of mind/reasons for the offence 1. Sydney Water's state of mind at the time of an offence being committed may be relevant to determining the objective seriousness of the offence in this sentencing context. An offence committed deliberately will be regarded as objectively more serious than one where the offence resulted from an accident, see Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242 at [123]. The Prosecutor does not submit the offence was conducted negligently, recklessly or intentionally. It submits however that Sydney Water has been dilatory in its response to clear problems with the Rising Main over several years. 2. Consideration of events over several years is necessary to consider the characterisation of Sydney Water's behaviour. A summary of steps taken as provided by Sydney Water based on the SOAF and affidavit of Ms Beer is set out below. 3. On 24 November 2016 there was a failure of the Rising Main at the invert in Elva Street, Strathfield, which was approximately 192m from the location of the incident. According to Sydney Water this was a unique event. It was the first time there had been a failure at the invert of one of Sydney Water's 16,421 rising main assets. The Prosecutor stated this was the sixth failure of the Rising Main since 1 January 2000 and it was identified as no 1 on Sydney Water's SPM Risk Ranking Guide (2014) at the time. 4. After the 24 November 2016 failure Sydney Water repaired the Rising Main at the failure location. It also commissioned the 2016 CCTV inspection on both sides of the failure to assess whether further sections of the Rising Main needed replacement, which took place on 28 November 2016. The Prosecutor submitted the 2016 CCTV inspection report included observations of 'possible crack' 'wall of the pipe fallen into invert only leaving steel left', 'possible loose piece of pipe' and 'possible fracture at 6 o'clock'. 5. On 15 December 2016 Sydney Water contacted Pure Technologies which had undertaken condition assessments of the Rising Main in June 2013 and September 2014 to inquire whether it had identified any abnormalities in a section of the Rising Main which had been the subject of the 2016 CCTV inspection because it had 'suggest[ed] some issues' in that area. Pure Technologies advised that nothing stood out in that section. 6. In August 2017 Sydney Water identified a section of the Rising Main in the vicinity of the incident, as well as three other unrelated rising mains, as assets that required further investigation, including through condition assessment. Funding was requested to carry out that investigation ahead of potential renewal of that infrastructure. 7. In April 2019 Sydney Water commenced scoping the need to renew the Rising Main, which involved work being undertaken to determine the extent of work required to undertake the renewal, the nature of the problem that needed to be addressed and the likely size of the investment required to factor into budgeting and the next regulatory pricing period. In the same month Sydney Water identified a risk of imminent failure in a different rising main following a succession of small spot failures in that pipe. As a consequence, internal resources which would otherwise have been available to work on the assessment and identification of options for renewal of the Rising Main were diverted to assessing and renewing the other rising main. 8. One of the factors that created some difficulty with the assessment of options for the renewal of the Rising Main was that the cause of the 24 November 2016 failure, which had occurred at the invert of the pipe, was unknown to Sydney Water. On or around 1 July 2020 Sydney Water engaged Professor Valix to undertake research and examine the corrosion mechanisms of failures of rising mains at the invert. 9. Between March and July 2020 New South Wales went into lockdown due to the COVID-19 pandemic. This halted Sydney Water's progress with the scoping works for renewal of the Rising Main, because non-essential, non-operational employees and contractors were prevented from accessing Sydney Water's sites. 10. In approximately July 2020 Sydney Water initiated a planning assessment to determine whether the Rising Main should be amplified as part of planned works in the Greater Parramatta and Olympic Peninsula (GPOP) area to accommodate new population growth or replace with the same type and size of infrastructure, which would require less planning and expenditure than the amplification option. Consideration of these alternatives 'was an important investment assurance step to ensure that a substantial investment in renewing the Rising Main ... was not wasted if its capacity was required to be amplified in the next few years to accommodate population growth', Ms Beer's affidavit par 30(i). At the same time Sydney Water sought internal estimates of the delivery cost and time required for the proposed amplification or replacement of the Rising Main. 11. By November or December 2020 the planning assessment had been undertaken and Sydney Water determined to separate the renewal of the Rising Main from the amplification works in the GPOP area. This was so that the renewal of the Rising Main could progress more swiftly. 12. Between January and March 2021 Sydney Water undertook technical assessments and geotechnical tests to determine the best option for renewal of the Rising Main. By 17 March 2021 Sydney Water had also compiled information to support the preparation of a Needs Approval Business Case (NABC) for that renewal. 13. On 24 March 2021 the Rising Main failed at Allen Street, Homebush. A CCTV inspection of the failure location was conducted on 26 March 2021 and key resources were involved in responding to the investigation of that incident. By 1 April 2021 Sydney Water considered that there was a need to expedite the renewal of the Rising Main. In about May 2021 Sydney Water handed the renewal project of the Rising Main to its regional delivery team to finalise the NABC following the 24 March 2021 failure as a matter of priority. 14. On or around 22 July 2021 Sydney Water commissioned a further condition assessment of the Rising Main using acoustic leak detection technology. That condition assessment found no points of interest or discernible leaks. Between July and September 2021 New South Wales went into a further lockdown in response to the COVID-19 pandemic, once again halting Sydney Water's progress with the renewal of the Rising Main. 15. In October 2021 the draft NABC for the renewal of the Rising Main was reviewed for readiness by Sydney Water's wastewater networks investment program manager. The draft NABC proposed the relining of the Rising Main. Sydney Water arranged for a hydraulic assessment of the Rising Main to be undertaken to ascertain whether the insertion of a liner in the Rising Main would adversely impact its hydraulic capacity. 16. Sydney Water also undertook extensive research to find a suitable liner for the Rising Main. Through this process, it became aware that there was no lining in use in Australia that was suitable for the relining of a 750mm pipe. Liner products that had been previously used by Sydney Water would reduce the hydraulic capacity of the Rising Main by approximately 50%, which was not acceptable due to the potential to increase the frequency of wet weather overflows. As a consequence, a non-standard product for relining the Rising Main was required. 17. In approximately December 2021 the NABC for the renewal of the Rising Main was provided to Sydney Water's investment program control group, an internal group of subject matter experts who provide advice, having regard to their expertise, on whether proposals meet the needs of the organisation. In approximately January 2022 the investment program control group provided feedback to be addressed by Sydney Water's team working on the NABC. 18. In June 2022 Sydney Water received eight reports from Professor Valix concerning the mechanism of failure of rising mains at the invert in which she concluded inter alia that there had been corrosion in rising mains induced by dosing the sewage pipes with ferrous chloride. She undertook predictive modelling of the risk of failure in rising mains. 19. On about 14 July 2022 Sydney Water concluded its review of the NABC for renewal of the Rising Main. Ms Beer approved funding for investigation of a number of options for renewal of the Rising Main in recognition of the urgency of its renewal and approved a recommendation that Sydney Water's in-house specialised services team be used for delivery of the project as that team was accustomed to specialised work of this kind. 20. In March 2023 Sydney Water's lead network programs engineer sought seed funding for the planning and design for relining the Rising Main. Sydney Water had identified a liner product in China which could be used on a 750mm rising main. This lining product had never previously been used in Australia and had never been installed in a large diameter pipe outside of China. As part of Sydney Water's product assessment process, it requested that the lining manufacturer conduct testing and submit various engineering reports to ensure that the relining product was suitable for the Rising Main. 21. On or around 19 May 2023 Ms Beer approved a product trial of the new liner for 400 metres of the Rising Main, which included that part of the Rising Main where the incident occurred. The product was custom designed and manufactured to fit the Rising Main. Given that the product had not been previously installed in Australia, there was no accredited local installer. Sydney Water trained its staff to install the product and invited experienced installers from China to assist and supervise the installation. The installation of the new liner occurred between 15 September 2023 and 5 October 2023. 22. Sydney Water is proposing to reline 2.5km of the 3.2km of the Rising Main, with the exception of those parts of the pipe which are concrete encased. The relining is proposed to be undertaken in a further five stages at a cost of between $14 million and $21 million. The second stage is currently underway. The second and third stages require the construction of additional pits and/or trenches for air and scour valves. 23. Overall the Prosecutor was critical of Sydney Water in failing to respond faster to prevent the incident. The Prosecutor was critical of Sydney Water's response to the 2016 CCTV inspection report because of observations referring to cracks inter alia. The length of pipe inspected by the CCTV was recorded in the report. It was not established that the area of pipe where the incident occurred was inspected at the time of the 2016 CCTV inspection. The Court was taken to the 2016 CCTV inspection report attached to Ms Beer's affidavit. The step taken by Sydney Water of consulting with Pure Technologies which had conducted earlier inspections in 2013 and 2014 was submitted to be insufficient. No further action was taken until August 2017, when Sydney Water identified a section of the Rising Main in the vicinity of the incident as an asset that required further investigation, see above in [34]. 24. No action was taken from August 2017 to early 2019. Sydney Water accepts it could have acted faster in this period. The Prosecutor submits more should have been done throughout 2020 and 2021 essentially criticising the time taken for each step in the history outlined above. It is not apparent that this criticism is warranted given the processes Sydney Water had to undertake to gain funding to investigate the causes of an incident for which the cause remains unknown, the lengthy investigation by Professor Valix and internal processes for getting funding to replace the Rising Main. 25. The Prosecutor asked the Court to draw inferences adverse to Sydney Water based on the above history of events. These inferences were sought in the absence of any expert evidence of what was the appropriate standard that could be expected of Sydney Water. Unless matters were self-evident no basis to draw such inferences exists. The Prosecutor bears the onus of establishing matters adverse to Sydney Water beyond reasonable doubt. Sydney Water has admitted it could have acted faster at some points in the SOAF. It is not self-evident that the steps otherwise relied on by the Prosecutor as deficient give rise to such an inference. The Court is not in a position to draw such conclusions from what is before it. The Prosecutor's submission of dismal failing is not made out. 26. The reasons for the offence and state of mind do not render the offence more objectively serious.

Protection of the Environment Operations Act 1997 (NSW) factors, s 241 1. Section 241(1) of the POEO Act sets out the following factors that the Court is required to take into account where relevant when imposing a penalty for offences under the Act: (a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence, (b) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence, (d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence, (e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee.

Extent of harm caused or likely to be caused to the environment by the commission of the offence, s 241(1)(a) 1. The extent of harm caused or likely to be caused to the environment by the commission of the offence is a mandatory consideration pursuant to s 241(1)(a). 'Environment' is widely defined in the POEO Act to include land, air and water and any layer of the atmosphere inter alia. 'Harm to the environment' is defined to include any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution. The definition of 'pollution' in the POEO Act extends to the emission into the air of gases, fumes, mists and odours. 2. Sydney Water's field and sampling team carried out sampling and field tests in the vicinity of the incident and Powells Creek on the day of the incident (SOAF par 69) and in the weeks following. The sampling results for faecal coliform and enterococci were referred to by environmental scientists Mr Krogh for the Prosecutor and Dr Dodd for Sydney Water. 3. Sydney Water took initial sampling on 6 January 2022 at six sites: 1. Site 2-1 described as Powells Creek at the rear of 8-10 Elva Street at green electrical box (incident site zone 1); 2. Site 2-2 described as Powells Creek upstream of Allen Street (zone 1); 3. Site 2-3 described as unnamed stormwater canal 10m upstream of Powells Creek confluence at rear of 56 Ismay Avenue (tributary of Powells Creek below incident site); 4. Site 2-4 described as Powells Creek 60m north east of 44 Ismay Avenue (zone 1); 5. Site 2-5 described as Powells Creek from the footbridge 20m southwest of Powells Creek tennis centre (bottom of zone 2); 6. Site 2-6 described as Mason Park wetlands 60m west of 19 Brussels Street (precautionary) (zone 4). 1. On 18 January 2022 further samples were taken from sites 2-1 to 2-5 amongst other sampling. 2. For the purpose of assessing the receiving environment and the impact of the incident on the environment, Dr Dodd separated the waterways downstream of the incident into four zones based on their physical characteristics, namely: 1. Zone 1: the section of Powells Creek upstream of Pomeroy Street, Strathfield with minimal tidal influence, which included sampling sites 2-1, 2-2 and 2-4. She described this as a 'highly modified, concrete lined channel designed to collect stormwater from the surrounding urban areas', which has unvegetated riparian areas and provides 'little or no structured habitat for aquatic and terrestrial organisms'. Dr Dodd noted that a walking track extends along Powells Creek throughout zone 1. The creek channel is not suitable for recreational use, with public access limited by fences and permanent warning signs; 2. Zone 2: the section of Powells Creek between Pomeroy Street, Strathfield and Bressington Park, Homebush, which included sampling site 2-5. Zone 2 is subject to tidal influence. This is a 'highly modified concrete-lined channel', which underwent a naturalisation process between 2017 and 2018 involving the removal of the concrete banks (but not the concrete substrate) in some sections and their replacement with sandstone and native plants. Fish may enter zone 2 from the lower reaches of Powells Creek. During Dr Dodd's site inspection on 21 May 2024 she observed dead fish in zone 2 suggesting that there are 'some limitations to the suitability of this stormwater channel as fish habitat'. Dr Dodd noted that a walking track and boardwalk extends along Powells Creek throughout zone 2, but that the creek channel is not suitable for recreational use, with public access limited in most areas by fences; 3. Zone 3: the section of Powells Creek downstream of Bressington Park, Homebush, which did not include any sampling sites. It is a 'semi-natural, unlined creek' surrounded by dense vegetation that flows into the mangrove wetlands of Homebush Bay. The Powells Creek wetland system comprises various wetlands including the Bicentennial Park wetlands and is underlined by mangrove swamp deposits and waste landfills; and 4. Zone 4: Mason Park wetlands, which is a recreational area and wetland located in Homebush which included sampling site 2-6. It is described as 'a sanctuary for various flora and fauna, providing shelter to the local wildlife'. Powells Creek forms the eastern boundary of the wetland, which consists of saltmarsh, mangrove forests and ponds. Dr Dodd noted that this is a 'semi-natural system as it has undergone landfilling and sewer construction and has been influenced by the conversion of Powells Creek and Saleyards Creek into stormwater drains'. 1. Dr Dodd's report contained a map demonstrating the location of each sampling site within each zone as follows:

Mr Krogh 1. Mr Krogh inspected Powells Creek on 4 April 2024 to view the location of the sampling sites and note the physical characteristics of Powells Creek and tributaries as a whole. Mr Krogh described the physical characteristics of each sampling site based on his observations. Mr Krogh did not adopt the zones identified by Dr Dodd. 2. Mr Krogh noted that the Australian and New Zealand Environment and Conservation Council's Australian and New Zealand Guidelines for Fresh and Marine Water Quality (2000) and the Australian and New Zealand Guidelines for Fresh and Marine Water Quality (2018) (collectively ANZECC Guidelines) provide a set of tools for assessing and managing ambient water quality in natural and semi-natural water resources. They are not meant to apply to recycled water quality, contaminant levels in discharges from industry, mixing zones or stormwater quality, unless stormwater systems are regarded as having high conservation value. In the absence of long-term site-specific data, default ANZECC Guidelines trigger values are used to assess the risk of adverse effects due to nutrients and a range of toxicants in various ecosystem types. 3. Mr Krogh opined that the raw sewage that flowed into Powells Creek and the Parramatta River as a result of the incident caused actual impact on the environment. The sample results for 6 January 2022 identified that the colour of the water in Powells Creek at sites 2-1 and 2‑2 was turbid and black with a strong sewage odour while the colour of the water at site 2-4 was turbid and grey with a moderate sewage odour. Further the dissolved oxygen levels at site 2-1 and site 2-2 (zone 1) were low and outside the ANZECC Guidelines default range for lowland rivers and estuaries and at levels known to be stressful to fish and sensitive aquatic species. 4. Mr Krogh opined that the raw sewage overflow also likely caused impacts to the environment due to the likely introduction of high levels of nutrients (particularly nitrogen and phosphorus) which are commonly found in untreated wastewater at levels above the ANZECC Guidelines default levels. While an unknown volume of sewage was trapped by containment devices and pumped from Powells Creek on 6 January 2022 any raw sewage not collected would have been transferred downstream. This would likely have contributed to the cumulative load of nutrients and other contaminants within the Parramatta River estuary. 5. Mr Krogh noted that while some dilution of the sewage overflow due to mixing with upstream waters in Powells Creek and estuarine waters on the flood and ebb tide would have occurred, nutrient and metal toxicants in the raw sewage overflow had the potential to exceed levels that could cause harm to the environment. Actual harm would depend on the degree of dilution achieved and the species coming into contact with waters affected by the raw sewage overflow. Limited information is available on the timing and degree of dilution achieved for the raw sewage overflow as it moved down to Powells Creek or the species likely to come into contact with the contaminated water. The nature of the harm caused by the raw sewage overflow is difficult to quantify. 6. Raw sewage overflow released to Powells Creek and Paramatta River had the potential to cause impacts to the environment due to the potential introduction of a wide range of toxicants which are often present in untreated sewage at levels that can at times exceed the ANZECC Guidelines default levels. 7. In describing the harmful effect of untreated sewage Mr Krogh explained that untreated sewage can contain excessive amounts of nutrients which, when released into freshwater and estuarine systems, can act as fertilizers, triggering algal blooms and other symptoms of nutrient pollution. Algal blooms can in turn deplete dissolved oxygen concentrations through their decomposition by bacteria, leading to oxygen deprived conditions harmful to aquatic life, particularly fish populations. Untreated sewage can also introduce a range of pollutants, including heavy metals, toxic chemicals, pharmaceuticals, micro‑plastics and disease-causing pathogens. 8. Relative to the estimated volume of raw sewage discharged (0.73 and 1.2 million litres) there is very limited information on the volumed trapped by the containment devices (water-gates) and subsequently pumped into collection trucks. Any raw sewage not collected would likely have been transferred downstream to the more natural areas within Powells Creek during the ebb tide on the afternoon of 6 January 2022. As it moved downstream it would have been gradually diluted as it mixed with estuarine waters in Powells Creek. The overflow would have been further diluted by the waters of Homebush Bay, the Mason Park wetlands and the Parramatta estuary. Larger particulate matter in the raw sewage would likely have settled out in the estuary and become incorporated into the sediments or the food chain if ingested by aquatic biota. Smaller particulates and dissolved contaminants in the raw sewage would likely be distributed further into the estuary to become part of the cumulative load of nutrients and other contaminants within the Paramatta estuary.

Oral evidence 1. In cross-examination Mr Krogh was referred to a photograph taken after the incident which he agreed depicted sand and silt coming from around the broken pipe. He agreed that he used the marketing material of a private company specialising in water remediation technology as a source in his report because it generally reflected the ANZECC Guidelines. He used this information because it adequately described the impacts of sewage on the environment. 2. Mr Krogh believed the incident caused actual impacts in Powells Creek. There was no doubt that the sewage got into Powells Creek. Mr Krogh accepted that Powells Creek does not meet the description of natural and semi natural water resources. He agreed that the ANZECC Guidelines are not intended to apply to stormwater quality unless an area has high conservation value. Mr Krogh believed Powells Creek served the purpose of both a natural creek, or rather a wholly disturbed creek, and a receptacle for stormwater. He agreed that he would not describe the area from the site of the incident to site 2-5 as having high conservation value. Nevertheless, the ANZECC Guidelines may still apply to highly modified systems. The National Health and Medical Research Council (NHRMC) Guidelines are for managing risks in recreational water. Mr Krogh agreed that between the incident to site 2-5 Powells Creek would not be described as recreational water for the purposes of the NHRMC Guidelines. 3. Mr Krogh used the definition of harm to the environment provided by the Prosecutor which he assumed came from the POEO Act. He understood 'likely' harm to mean 'a real or not remote chance or possibility regardless of whether it is less or more than 50%'. He confirmed that 'actual' harm would depend on the degree of dilution achieved and the degree of contact of species with waters affected by the raw sewage overflow. This is hard to quantify. There was very little dilution at site 2-1 so it could be considered that actual harm occurred in that area. There is limited information on the extent or duration of likely harm for the rest of Powells Creek until Homebush Bay. There was insufficient information collected in these areas to quantify actual harm. 4. Mr Krogh believed there was a likely chance of harm but quantifying the extent and the nature of the harm was difficult because of the lack of information through the Powells Creek system and Homebush Bay. He agreed there was inadequate information for him to be able to express an opinion on quantifying actual or likely harm.

Dr Dodd 1. Dr Dodd inspected the incident site and downstream sections of Powells Creek on 19 May 2024 and 21 May 2024 at approximately low and high tide respectively. 2. With respect to the state of the receiving waters Dr Dodd observed that a limited assessment of the water quality of Powells Creek was undertaken for the Parramatta River catchment group in 2021 and 2022 as part of the Sydney metro west public transport project, which included surface water monitoring near sites 2-2 and 2-5. The report concluded that 'the water quality conditions of Powells Creek and Saleyards Creek are characterised by low dissolved oxygen levels, elevated heavy metal and nutrient concentrations, and high turbidity'. 3. The ANZECC Guidelines state that enterococci should not exceed 450‑700 CFU/100mL. On 6 January 2022 Sydney Water took water samples from an unnamed stormwater channel upstream of its confluence with Powells Creek (site 2-3). Enterococci and faecal coliform results were 5,5700 CFU/100mL and 44,000 CFU/100mL respectively. Dr Dodd noted that photographs taken during the sampling on 6 January 2022 do not show stormwater migrating upstream from the incident towards site 2‑3 and that the source of this faecal indicator bacteria is unknown. On 18 January 2022 samples were taken from site 2-3 and a further site, site 2-7, in the unnamed stormwater channel upstream of its confluence with Powells Creek. Enterococci and faecal coliform results of 980 CFU/100mL and 1,700 CFU/100mL respectively were obtained from site 2-3 and enterococci and faecal coliform results of 2,000 CFU/100mL and 1,200 CFU/100mL respectively were obtained at site 2-7. 4. With respect to zone 1, Dr Dodd concluded that the incident altered the environment of Powells Creek via the introduction of sewage. The alteration was temporary with no clear indication of residual sewage impact. As to whether this alteration had the effect of degrading the environment, she concluded: Zone 1 is a concrete-lined channel with limited tidal influence and, according to the guidance provided by [the ANZECC Guidelines], this kind of stormwater infrastructure is not associated with environmental values. It is possible that the presence of sewage in Zone 1 may have temporarily degraded the amenity of [the] area for users of the walking track that extends along Powells Creek. In my opinion however, the temporary presence of sewage in Zone 1 would not have damaged or made worse the negligible habitat features provided by the concrete structure. 1. With respect to zones 2 and 3, Dr Dodd stated there was no clear evidence that the incident altered the environment of Powells Creek relative to the conditions that are typical of an urban stormwater catchment. In support of this conclusion she noted that: 1. observations and field testing on 6 January 2022 did not identify the presence of sewage in zone 2; 2. the enterococci and faecal coliform results from zone 2 (site 2-5) on 6 January 2022 were several orders of magnitude lower than those measured in zone 1 (sites 2-1, 2-2 and 2-4) reflecting the dissipation of the overflow as a result of the implementation of a clean-up plan, stormwater flows and tidal influences; 3. the enterococci and faecal coliform results from zone 2 on 6 January 2022 were of a similar order of magnitude to those measured in samples taken upstream of the incident (site 2-3) and were consistent with the results that have been reported in other urban stormwater systems; and 4. Powells Creek, Homebush Bay and the Parramatta River are subject to stormwater inflows from a large and highly urbanised catchment and the historical industrial use of the area has resulted in a variety of legacy contamination issues in these waterways. 1. Dr Dodd considered that it was likely that the clean-up activities undertaken within Powells Creek did not remove all the material released during the incident and that an undetermined amount of the material was transported downstream into zones 2 and 3. Given that traditional field or laboratory indicators did not clearly identify the presence of sewage in zone 2, 'any alteration to the environment would have been limited in spatial extent, magnitude and duration, effectively rendering it indiscernible from the conditions that are typical of a highly modified urban stormwater catchment'. 2. As for whether there was degradation of the environment in zone 2 Dr Dodd concluded that 'the temporary presence of an indiscernible amount of sewage in zone 2 would not have damaged or made worse the minimal habitat features provided to aquatic organisms by this highly modified waterway'. 3. With respect to zone 4 Dr Dodd concluded that there was no evidence that the incident altered the environment of the Mason Park wetlands. She noted that a weir and a detention basin are installed within the Mason Park wetlands to minimise the inflow of stormwater from Powells Creek and Saleyards Creek. There were no visual or olfactory signs of the presence of sewage in zone 4 on the date of the incident or any positive indication of the presence of ammonia. 4. In summary Dr Dodd's opinion was that the harm to the environment, as defined in the POEO Act, was 'limited to the possible temporary degradation of the amenity of [the] area for users of the walking track that extends along Powells Creek. The amenity of the areas would only have been affected when visual and/or olfactory indicators of sewage were apparent to users of the adjacent walking track'. She opined that these visual and/or olfactory indicators may have been present in the part of Powells Creek between the site of the incident and Pomeroy Street, Strathfield (where sewage was observed on 6 January 2022) until, at most, 17 January 2022 (given that no sewage was observed on 18 January 2022).

Oral evidence 1. In cross-examination Dr Dodd agreed that there are pollutants in wastewater and that contaminated wastewater undergoes a process of treatment to remove or at least reduce the pollutant load. The intermixing of sewage and water doesn't of itself result in the removal of pollutants and some other process has to be applied. Dr Dodd accepted that wastewater or sewage entering Powells Creek that was not otherwise removed would flow eventually into Homebush Bay. Where wastewater encounters other water there would be an intermixing of the wastewater with the other water. This intermixing would occur along zones 1, 2, 3. There is also an element of mixing relating to tidal inflows that would primarily occur in zones 2 and 3. 2. Dr Dodd believed the water gates in place had some effect on the flow of the sewage although it would not have completely stopped the water flowing. She accepted that at least some of the wastewater would have made its way to Homebush Bay before pumping occurred. 3. Dr Dodd accepted that zone 3 is a more environmentally sensitive area than zone 1. Zone 3 is a semi natural sediment-lined waterway and has mangroves. This is an area that fish frequent. The day Dr Dodd inspected Powells Creek on 21 May 2024 she saw dead fish at the lower end of zone 2 which had no water in it. 4. Aquatic ecosystems are an environmental value of zone 3 relevant to considering the concept of harm. As there was no environmental value assigned to zone 1 environmental harm would not occur in that area. Environmental harm is relevant to zone 3 because it is associated with environmental value. The term environmental value comes from the ANZECC Guidelines in assessing water quality and describes the characteristics of certain waterways. The extent of harm depends on the nature and extent of the contamination, the baseline conditions of the environment and the receptors being the organisms living in the waterway. 5. Dr Dodd confirmed that it is likely that cleanup activities taken by Sydney Water did not remove all the material released and treatment was needed to remove toxicants. She accepted that some alteration occurred in zones 2 and 3 but it should be addressed relative to the condition of the existing stormwater environment. There was mixing of the stormwater and sewage downstream of Powells Creek over 2km. Stormwater has contaminants in it. There was no indication that there was relative alteration as a result of the incident. The test results for site 2-5 (zone 2) showed no indication of ammonia being present and no indication that the indicators of faecal matter were different to the kinds of indicators found in stormwater generally. She accepted that at least some of the sewage-contaminated wastewater would have made its way to Homebush Bay. 6. Dr Dodd's position was that in looking at alteration it was necessary to look at the existing condition of the environment. For there to be alteration of the environment there would have to be a change in the concentrations of contaminants. The significant mixing of the sewage with the stormwater flowing down Powells Creek and the incoming tidal event meant there was no relative alternation that resulted in harm meaning degradation. There was no discernible change in water or sediment quality in zone 3. 7. Dr Dodd accepted that there is always a potential for adverse change to occur on the environment as there is never 100% certainty in environmental risk assessment. However, there is a very remote chance of harm. Dr Dodd did not think it was likely that there was measurable, quantifiable actual harm.

Harm to the environment 1. Harm is defined in the dictionary of the POEO Act as the direct or indirect alteration of the environment that has the effect of degrading the environment. Alteration causing degradation is necessary to establish a finding of harm. Section 241(1)(a) refers to (actual) harm or harm likely to be caused by the commission of an offence. 'Likely harm' is not defined in the POEO Act. It is generally considered to mean a real or not remote chance or possibility regardless of whether it is less or more than a 50% chance, Chief Executive, Office of Environment and Heritage v Kyluk Pty Ltd (No 4) (2014) 212 LGERA 1; [2014] NSWLEC 74 at [49] citing Newcastle City Council v Pace Farm Egg Products Pty Ltd [2002] NSWLEC 66 at [44]. Potential for harm is not included in the definition of harm or in s 241(1)(a). It has been considered as relevant in the assessment of environmental harm in many cases and can arise under s 241(2). It would be preferable, where the evidence exists, for both actual harm and the likelihood of harm arising from an offence to be addressed. 2. Powells Creek at the incident site is a concrete channel used to discharge stormwater. The downstream environment is usefully described by Dr Dodd's zones. Where it is alleged that an incident caused environmental harm, the fact that the receiving environment was modified, disturbed or degraded prior to the incident does not serve to mitigate the defendant's conduct, Environment Protection Authority v Ecolab Pty Ltd (2002) 123 LGERA 269; [2002] NSWLEC 206 (Ecolab) at [14], Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [253]. Further, 'it is important to determine the condition of the receiving waters in order to assess the extent of the environmental harm', Ecolab at [14] quoted with approval by Pepper J in Environment Protection Authority v John Michelin & Son Pty Ltd [2019] NSWLEC 88 (John Michelin & Son) at [160] and Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [254]. This is important to prevent a defendant being made responsible for environmental harm inflicted by others, Director-General, Department of Environment and Climate Change v Walker Corporation Pty Ltd (No 4) [2011] NSWLEC 119 at [88], Environment Protection Authority v Queanbeyan City Council (No 3) (2012) 192 LGERA 415; [2012] NSWLEC 220 at [158]. The Court can consider the extent to which the receiving environment was modified as a result of the relevant incident, which requires a comparison of the condition of the environment before and after the contamination event, Ecolab at [13] quoted with approval in John Michelin & Son at [160] and Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100 at [254]. 3. I accept Dr Dodd's careful evidence based on zones identified by their physical features which range from a highly modified, unnatural concrete channel (zone 1) where the incident occurred to the lesser modified zone 2, to zone 3 which has more natural features albeit in an urban environment leading to Homebush Bay. While this does not treat Powells Creek as one indistinguishable whole, as Mr Krogh adopted, such an approach is appropriate in the circumstances of this case. Dr Dodd considered the application of the ANZECC Guidelines identifying which zones had environmental values as defined by them. Accepting that an unidentifiable amount of raw sewage would have reached Homebush Bay as a result of what occurred on 6 January 2022 and that sewage needs to be treated to remove contaminants, her findings were informed by the condition of the existing stormwater discharge environment. 4. Dr Dodd's evidence was informed by the testing undertaken by Sydney Water over several days in light of the characteristics of the zones she identified. That testing included sampling sites within Powells Creek at the incident site and downstream and included sites 2-3 and 2-7 which were in a stormwater drain flowing into Powells Creek downstream of the incident site. Those samples showed high levels of various contaminants confirming the existence of another source of these contaminants flowed into Powells Creek. 5. Zone 1 a concrete channel used for stormwater discharge has no natural creek features and any basis for applying the ANZECC Guidelines in this context is lacking as Dr Dodd identified as outlined above in [77]. It has no environmental value and consequently there could be no environmental harm caused by the incident. 6. Much of her evidence focussed on zone 2 and her conclusions are set out above in [78]. As for whether there was degradation of the environment in zone 2, Dr Dodd concluded that as set out above in [79] that 'any alteration to the environment would have been limited in spatial extent, magnitude and duration effectively rendering it indiscernible from the conditions that are typical of a highly modified urban stormwater catchment'. Further, 'the temporary presence of an indiscernible amount of sewage in zone 2 would not have damaged or made worse the minimal habitat features provided to aquatic organisms by this highly modified waterway'. Her conclusions also apply to the downstream environment of zone 3 which she also addressed in the context that it was more environmentally sensitive given its semi-natural state. 7. Dr Dodd found no evidence of actual harm or likelihood of harm to the Mason Park wetlands (zone 4). 8. Dr Dodd's opinion is that the harm to the environment as defined in the POEO Act is 'limited to the possible temporary degradation of the amenity of [the] area for users of the walking track that extends along Powells Creek. The amenity of the areas would only have been affected when visual and/or olfactory indicators of sewage were apparent to users of the adjacent walking track'. She opined that these visual and/or olfactory indicators may have been present in the part of Powells Creek between the site of the incident and Pomeroy Street, Strathfield (where sewage was observed on 6 January 2022) until, at most, 17 January 2022 (given that no sewage was observed on 18 January 2022). None of Dr Dodd's conclusions were undermined by cross-examination. 9. With respect to the duration of that harm, there is only evidence of odour, an air impurity as defined in the POEO Act, near the site of the incident on 6 January 2022 and 8 January 2022. On the latter date, 'slight odour' was detected (SOAF par 61(d)). Having regard to the fact that there was heavy rainfall over night on 7 January 2022 (SOAF par 61(a)), and heavy flow in Powells Creek canal due to run-off from the connected stormwater drains, the Prosecutor cannot prove beyond reasonable doubt that the 'slight odour' on that date was attributable to the incident. Sydney Water completed its clean-up operations and validated its clean-up plan on 9 January 2022. 10. Mr Krogh's evidence was general in nature to the effect that as an unknown amount of sewage flowed along Powells Creek into Homebush Bay on 6 January 2022 and sewage is known to contain toxicants there was actual harm. As already observed above, zone 1 a concrete channel used for stormwater discharge has no natural creek features and no basis exists for applying the ANZECC Guidelines in this context. The sampling sites close to the incident location in zone 1 identified high levels of environmentally harmful substances but in that zone there is nothing to be harmed by them. The only evidence of environmental harm in zone 1 is odour caused by the incident which may have been detected by anyone using the walking track along the channel. Mr Krogh's general opinion is not supported in relation to proof of actual harm in zones 2 and 3. The presence of sewage which may alter the environment alone does not establish actual harm and Mr Krogh's evidence only addressed alteration not degradation. Other than odour no evidence of degradation in the concrete lined channel section of Powells Creek was identified by Mr Krogh. 11. Sydney Water's criticism of Mr Krogh's observations is justified given the general nature of his report. Mr Krogh agreed in cross-examination that he had inadequate information to express an opinion which quantified actual or likely harm. While he considered there was insufficient testing to enable conclusions to be drawn his evidence remained very general in nature and did not engage with the sampling that did occur downstream of the incident site. Mr Krogh's analysis is not based on evidence that the wide range of toxicants, excessive amounts of nutrients or a range of pollutants, including heavy metals, toxic chemicals, pharmaceuticals, micro-plastics and disease-causing pathogens he referred to were introduced into Powells Creek as a result of the incident (beyond what was identified in the sampling undertaken by Sydney Water). He assumed such contaminants were present based on general information prepared by inter alia Sydney Water in an information sheet 'What's in wastewater?' and marketing material of a private company specialising in water remediation technology because it generally reflected the ANZECC Guidelines. There was no evidence that the incident disrupted the balance of the asserted ecosystem in Powells Creek, caused algal blooms, or resulted in sewage reaching the Mason Park wetlands or Homebush Bay. His evidence at its highest is that there was potential for harm but the basis for such an opinion was very general. His evidence was not persuasive as a result. 12. It has been established beyond reasonable doubt that there was odour caused by the incident on 6 January 2022, and visual indicators of sewage between 6 and 8 January 2022. No further environmental harm has been established to the criminal standard. That Dr Dodd accepted there was the potential for harm because it is not possible scientifically to be 100% certain does not establish a likelihood of harm. The Prosecutor has not established more than minimal likely harm to the environment.

Practical measures to prevent, control, abate or mitigate harm caused or likely to be caused to the environment by the commission of the offence, s 241(1)(b)

Immediate response to incident 1. The SOAF above in [4] identifies at pars 46-65 the practical steps taken by Sydney Water commencing from about 50 minutes after the incident was first reported at 8.32am on 6 January 2022, continuing throughout 6-9 January 2022. A situation report was tendered which described where pumping operations occurred commencing on 6 January 2022. Sydney Water responded promptly and appropriately to the incident in implementing cleaning up activities and repair of the Rising Main on 7-9 January 2022.

Addressing Rising Main failure 1. Sydney Water agreed it could have taken practical measures to prevent harm to the environment at SOAF par 76 by replacing the part of the Rising Main where the failure occurred. Sydney Water also accepted that it could have commissioned in a more timely way research to examine the physical and chemical causes of failures of rising mains at the invert. Commissioning Professor Valix's research into the physical and chemical causes of failures of rising mains at the invert in a more timely manner in response to the 24 November 2016 failure could have occurred. Sydney Water received Professor Valix's eight reports two years after the research was commissioned both after the 24 March 2021 failure and the incident. These reports consisting of 200 pages of detailed analysis were the product of extensive research. I accept that the time for Professor Valix to undertake the research should have no bearing on Sydney Water's culpability. 2. Sydney Water accepted that it could have acted more quickly to investigate the potential issues with the condition of the Rising Main in the vicinity of the incident once it became aware in August 2017 that the Rising Main had potential issues which required further investigation ahead of a potential renewal. The Prosecutor's submissions were directed to the same argument considered above, that Sydney Water was dilatory in undertaking the practical measure available to it, which I do not accept. Sydney Water's approach was not dilatory. First there was not an obvious and known future risk of failures and there were no repeated identical failures prior to the 24 November 2016 failure. As noted by Ms Beer the failure at the invert created difficulties with the assessment of options for the renewal of the Rising Main. The cause of failure giving rise to the incident remains uncertain despite detailed consideration by three experts in the course of these proceedings. Second Sydney Water took a range of steps between the 24 November 2016 failure and the 24 March 2021 failure to progress the renewal of the Rising Main summarised above in [31]-[40]. From early 2020 the steps taken by Sydney Water to progress the renewal of the Rising Main were significant including separating the renewal of the Rising Main from the GPOP amplification project so that renewal could progress more swiftly.

Extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused by the offence, s 241(1)(c) 1. Sydney Water accepts that it could reasonably have foreseen that harm could be caused to the environment by a failure to maintain the Rising Main in a proper and efficient condition and could have reasonably foreseen that, if the Rising Main failed, there was a risk of harm, or likelihood of harm, to the environment.

Extent to which the person who committed the offence had control over the causes that gave rise to the offence, s 241(1)(d) 1. As agreed in the SOAF at par 74 Sydney Water had the legal, physical and technical ability to prevent the failure of the Rising Main. Sydney Water accepts it had control over the causes of the offence.

Conclusion on objective seriousness 1. In light of all the relevant matters identified above I consider the objective seriousness of this matter is at the high end of the low range of objective seriousness.

Subjective factors 1. The mitigating factors relevant to sentencing are referred to in s 21A(3) of the CSP Act.

Injury, loss or damage not substantial, s 21A(3)(a) 1. I have found above the environmental harm caused was low in impact, a mitigating factor.

Discount for early guilty plea, ss 21A(3)(k), 22 1. An early plea of guilty may entitle a defendant to a discount in penalty in the range of 10-25%, R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [160] (Spigelman CJ, Wood CJ at CL, Foster AJA, Grove and James JJ agreeing). This range is intended to be a guide only, it does not create a presumption or entitlement to a particular discount in a given situation, R v Araya (2005) 155 A Crim R 555; [2005] NSWCCA 283 at [44] (Johnson J, Simpson and Rothman JJ agreeing). 2. Three charges were laid by the Prosecutor on 30 December 2022 with the first mention on 10 February 2023 and a plea of guilty to the present charge entered on 23 February 2024 some sixteen months later with two charges not pursued. Sydney Water's submissions set out the large number of steps (19) taken in the proceedings. The Prosecutor sought documents which were protected for the purposes of s 181 of the POEO Act which resulted in an appeal to the Court of Appeal. It is unnecessary to engage with this history in detail to determine whether there should be a reduction of 20% for the plea of guilty as the time for negotiation with the Prosecutor appears reasonable. The plea has had utilitarian value given the complexity of the issues arising.

Cooperation with Prosecutor, ss 21A(3)(m), 23 1. Sydney Water fully co-operated with the Prosecutor with its investigations into the incident giving rise to the prosecution. It provided prompt assistance to the Prosecutor through the reporting of, response to and investigation of the incident, including by its field and sampling team conducting an initial field assessment and taking initial samples shortly after being notified of the incident and by its environmental liaison team providing the Prosecutor with daily updates and situation reports until the remediation works were complete.

Prior record, s 21A(3)(e)/aggravating factor, s 21A(1) 1. Sydney Water has 11 past convictions for offences relating to wastewater flows over 30 years. This arises in at least two contexts in light of the Prosecutor's submissions, as it submits the prior record of convictions gives rise to an aggravating factor on sentence. No leniency can be afforded under s 21A(3)(e). 2. Section 21A(1) provides that in determining the appropriate sentence for an offence a court is to take into account aggravating factors where relevant and known to the court. Sydney Water has 11 past convictions for offences relating to wastewater flows over 30 years. The Prosecutor submitted this is an aggravating factor as provided by s 21A(2)(d). I do not consider that the prior convictions are necessarily aggravating in the context of this particular offence.

Likelihood of reoffending, s 21A(3)(g) 1. Considering the record of prior convictions in the circumstances of this matter I cannot conclude that Sydney Water will not reoffend given the scale of its operations.

Good character of defendant, s 21A(3)(f) 1. Ms Beer's affidavit summarised above in [6]-[14] identifies the efforts made by Sydney Water in undertaking risk assessment and implementing measures for compliance with relevant legislation and regulations in all areas of business. It has implemented an environmental management system providing a framework for risk regulation. It has invested in a range of initiatives to reduce the risk of overflows from its wastewater networks such as remote sensors. It has undertaken community work and the varied programs in which it has invested including in relation to the importance of healthy waterways. I accept that Sydney Water is of good character.

Remorse and contrition, s 21A(3)(i) 1. The Prosecutor suggested the expression of remorse is not genuine or should not be given much weight because of the prior convictions of Sydney Water and the circumstances of this case as characterised by the Prosecutor. Given the complexity of the system which Sydney Water operates and the particular circumstances of this case whereby the cause of the failure remains unknown, its accepted failure to act more promptly from August 2017 to 2019 does not render its expression of remorse less genuine. I consider the expression of remorse by Ms Beer should be accepted as sincere. Actions have been taken by Sydney Water which support the expression of remorse.

Deterrence, s 3A(b) 1. General deterrence is an important factor when imposing penalties for environmental offences, Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34 at [139], Axer at 367 (Badgery-Parker J). Nominal fines are insufficient for deterrence, Environment Protection Authority v Sydney Water Corporation [2023] NSWLEC 68 at [159] citing Axer at 359 (Mahoney AJA), 367 (Badgery-Parker J, Finlay J agreeing), Camilleri's at 701 (Kirby P, Campbell and James JJ agreeing). 2. The sentence should operate as a powerful factor in preventing the commission of similar offences by persons who might be tempted to do so by the prospect that, if they are caught, only light punishment will be imposed, Plath of Department of Environment and Climate Change v Fish; Plath of Department of Environment and Climate Change v Orogen Pty Ltd (2010) 179 LGERA 386; [2010] NSWLEC 144 at [99] citing R v Rushby [1977] 1 NSWLR 594 at 597. General deterrence is an important consideration in enforcing the regulatory regime of environment protection under the POEO Act here in relation to a breach of an EPL.

Specific deterrence 1. Specific deterrence as referred to in Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14 (Veen (No 2)) at 477 (Mason CJ, Brennan, Dawson, Toohey JJ) refers to a defendant who displays 'uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law'. 2. The Prosecutor submitted that specific deterrence is relevant where a defendant continues in the same area of operation in which an incident has occurred. Given the significance of the systems involved in the incident the penalty imposed must serve to reinforce Sydney Water's responsibility to ensure that its activities are carried out in a manner compliant with the EPL. Specific deterrence is also warranted where the offender has a history of prior convictions for criminal offences. In the recent decision Environment Protection Authority v Sydney Water Corporation [2023] NSWLEC 68, Pritchard J accepted at [165] that there was a need for specific deterrence in circumstances where Sydney Water operates a large sewage network, has a history of prior convictions for environmental offences, and has a responsibility to ensure that its activities are carried out in a manner that does not result in pollution of waters. 3. Sydney Water submitted there is no need for the penalty to act as a specific deterrent to Sydney Water not to re-offend. Sydney Water has remedied the deficiency which caused the offence by relining the part of the Rising Main where the failure occurred and is relining a further 2.1km of the Rising Main in five stages. Sydney Water has also sought to improve its management of rising mains by appointing a dedicated resource to manage the condition assessment program for those assets and to identify pipes for potential amplification or renewal. As attested to in her affidavit in February 2023 Ms Beer also initiated a process through which Sydney Water projects of high importance may be classified as business critical projects ensuring that attention is focussed on these projects and their delivery is prioritised. In May 2023 Ms Beer commissioned an ongoing study by Sydney Water's internal subject matter experts to attempt to develop a coordinated and structured action plan to reduce the frequency of rising main failures. 4. Sydney Water has also taken steps to reduce the amount of ferrous chloride dosing it is undertaking in its rising mains (which mitigates the odour that may be emitted from those assets and minimises their corrosion) in light of Professor Valix's research as set out in pars 14, 26-27 of the affidavit of Mr Kacprzak Sydney Water engineer dated 24 September 2024 Additionally Sydney Water is undertaking economic modelling to compare the costs and benefits of ferrous chloride dosing and magnesium hydroxide dosing into wastewater networks with other alternative approaches, reviewing internal corrosion protection barriers in rising mains to ensure they reach their intended design life if and when they are exposed to chemical dosing and investigating whether there are alternative dosing chemicals which can be used that do not present a risk of damage to cement lined and non-cement lined metallic pipes, Mr Kacprzak's affidavit par 28. 5. Taking all the measures implemented into account I do not consider there is a need for specific deterrence in this case.

Retribution and denunciation, s 3A(a), (f) 1. Purposes of sentencing include providing retribution for and denunciation of the offence.

Even-handedness/proportionality in sentencing 1. The principle of even-handedness requires that the Court consider if there is any sentencing pattern for like offences in order to determine a consistent approach to penalty, R v Visconti [1982] 2 NSWLR 104 at 107 (Street CJ, Maxwell and Lee JJ agreeing). This principle must always be applied subject to the particular circumstances of the case before the Court, Hoare v R (1989) 167 CLR 348; [1989] HCA 33 at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ). The principle of even-handedness in sentencing so that like offences receive like sentences is recognised, but each case must be determined on its own facts, Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 at [42] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) quoting R v Ruha (2010) 198 A Crim R 430; [2010] QCA 10 at [47]. A history of sentencing in other cases does not limit my sentencing discretion. 2. Sydney Water has 11 prior prosecutions for various water pollution offences arising from its operations on several occasions and multiple breaches of EPL conditions. The prior prosecutions ranging from 1996 to 2023 are set out in the SOAF at pars 77-87. The Prosecutor referred particularly to: 1. Environment Protection Authority v Sydney Water Corporation [2023] NSWLEC 68 involving pleas of guilty to three water pollution offences, one offence at upper end of mid-range of objective seriousness, two offences in the lower end of the mid-range of objective seriousness, total penalty of $365,625 imposed; 2. Environment Protection Authority v Sydney Water Corporation [2021] NSWLEC 17 involving pleas of guilty to two offences of polluting water in the mid-range of objective seriousness with actual harm caused, total penalty of $175,500 imposed; 3. Environment Protection Authority v Sydney Water Corporation (No 2) [2023] NSWLEC 2 involving one offence of water pollution following a hearing on liability found to be towards the lower end of the low range of objective seriousness, penalty of $200,000 imposed; 4. Environment Protection Authority v Sydney Water Corporation [2015] NSWLEC 80 involving pleas of guilty to a water pollution offence and breach of EPL condition offence found to be at the low to moderate range of objective seriousness, total penalty of $157,500 imposed; and 5. Environment Protection Authority v Hawkesbury City Council [2017] NSWLEC 39 involving pleas of guilty to a water pollution offence found to be at the low range of moderate seriousness and two offences of breach of EPL condition one at the high end of the low range of seriousness and another toward the low range of moderate seriousness, total penalty of $175,000 imposed.

Capacity to pay fine, s 6 Fines Act 1996 (NSW) 1. In fixing the amount of a fine in relation to the offence I must consider as required by s 6 of the Fines Act 1996 (NSW) such information regarding the means of Sydney Water that is reasonably and practicably available to the Court. There is no evidence that Sydney Water does not have the capacity to pay a fine.

Penalty (with payment in lieu to Environmental Trust s 250(1)(e) POEO Act) 1. The Court must apply the instinctive synthesis approach by identifying all the relevant factors, discussing their importance and making a 'value judgment as to what is the appropriate sentence given all the factors of the case', Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 at [26] unanimously following Markarian v R at [51] (McHugh J). The sentence must reflect all the relevant objective circumstances of the offence and subjective circumstances of the defendant, see Veen v R (1979) 143 CLR 458; [1979] HCA 7 at 490 (Jacobs J) and Veen (No 2) at 472-3 (Mason CJ, Brennan, Dawson and Toohey JJ), 490-1 (Deane J). The sentence should not exceed what is 'justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances', Hoare v R at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ) citing Veen (No 2) at 472, 485-6, 490-1, 496. 2. The appropriate penalty in light of all the matters considered above is $250,000 reduced by 20% in light of the early plea of guilty to $200,000. 3. Payment to the Environmental Trust of any penalty is sought in lieu and such an order is appropriate and is provided for in s 250(1)(e) of the POEO Act.

Publication order 1. The Prosecutor seeks an order under s 250(1)(a) of the POEO Act that Sydney Water take specified action to publicise the offence (including the circumstances of the offence) and its environmental and other consequences, and any other orders made by the Court against Sydney Water. 2. Publicising sentences for environmental crime improves the effectiveness of sentences as a deterrent, particularly for corporate offenders, who are susceptible to criminal stigma, Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 at [241]-[244]. 3. It is appropriate to make a publication order in this case to enhance the deterrent value of the sentence in the terms set out in Annexure A to this judgment. Such orders are to be made in addition to any other penalty imposed as provided by s 244(2) of the POEO Act.

Costs 1. Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW) the Prosecutor's professional costs are to be paid. Sydney Water accepts that it should be ordered to pay part of the Prosecutor's costs. In the absence of agreement of an amount it has asked that costs be reserved and the Prosecutor has agreed to this course.

Order 1. The Court orders: 1. The Defendant is convicted of the offence contrary to section 64(1) of the Protection of the Environment Operations Act 1997 (NSW), as charged. 2. Pursuant to section 250(1)(e) of the Protection of the Environment Operations Act 1997 (NSW), in lieu of a fine, the Defendant is ordered to pay $200,000 within 28 days of this order, to the Environmental Trust established under the Environmental Trust Act 1998 (NSW) with the intent that such sum be applied by the Environmental Trust to emergency pollution incidents and orphan waste dumping programs. 3. Pursuant to section 250(1)(a) of the Protection of the Environment Operations Act 1997 (NSW), the Defendant, at its expense, is to: 1. within 28 days of the date of this order, cause a notice of a minimum size of a quarter page to be published within the first 12 pages of the Sydney Morning Herald with the text of such notice and the Sydney Water Corporation logo (of reasonable size) to be as set out in Annexure A to these orders; and 1. Pursuant to section 250(1)(a) of the Protection of the Environment Operations Act 1997 (NSW), the Defendant, at its expense, is to: 1. within 14 days of the date of this order, publicise the offence and the orders made against it by posting the text of Annexure A to these orders on its Facebook wall, together with a hyperlink directly to the Court's judgment as published on the New South Wales Caselaw website and tagging the Environment Protection Authority in the post. The post is to be made between the times of 8am and 10am or between 4.30pm and 6.30pm on a weekday. This post must remain a pinned post on Facebook that remains at the top of the Sydney Water Facebook page for a minimum of 7 days; 2. within 14 days of the date of this order, publicise the offence and the orders made against it by tweeting the following text from its X account: @SydneyWaterNews was prosecuted by @NSW_EPA and convicted of a licence breach offence following an overflow of untreated sewage into Powells Creek, Strathfield in January 2022. Total monetary penalty of $200,000 to be paid to the Environmental Trust established under the Environmental Trust Act 1998, in lieu of a fine: [insert hyperlink to judgment as published on NSW Caselaw website] together with a hyperlink directly to the Court's judgment as published on the New South Wales Caselaw website. The tweet is to be made between the times of 8am and 10am or between 4.30pm and 6.30pm on a weekday. This tweet must remain a pinned tweet on X that remains at the top of the Sydney Water X page for a minimum of 7 days. The Environment Protection Authority may tag Sydney Water's X account in any Environment Protection Authority tweets about the judgment; and 1. within 14 days of the date of this order, publicise the offence and the orders made against it by posting a photograph of Powells Creek at Strathfield with the words 'Sydney Water convicted of licence breach' in bold text inserted over the top of that photograph on its Instagram account with the following caption: @SydneyWaterNews was prosecuted by @NSW_EPA and convicted of a licence breach offence following an overflow of untreated sewage into Powells Creek, Strathfield in January 2022. Total monetary penalty of $200,000 to be paid to the Environmental Trust established under the Environmental Trust Act 1998, in lieu of a fine: [insert hyperlink to judgment as published on NSW Caselaw website] #sydneywater #environment #EPA #NSWEPA #powellscreek together with a hyperlink directly to the Court's judgment as published on the New South Wales Caselaw website (as indicated above). The post is to be made between the times of 8am and 10am or between 4.30pm and 6.30pm on a weekday. This post must remain on its Instagram account for a minimum of one month. 1. Within 7 days of the date of the publications referred to in Orders 3-4 above, the Defendant must provide the Prosecutor with a complete copy of the pages of the publications and websites in which the notices have appeared. 2. Costs reserved. 1. The Court notes that: 1. The Prosecutor withdraws proceedings 2022/00392931 and 2022/00392932.

Orders - 04 March 2025 1. The Court orders that: 1. Order 4 subparagraphs (a), (b) and (c) of the orders dated 29 November 2024 are varied pursuant to rule 36.5 of the Uniform Civil Procedure Rules 2005 (NSW) as authorised by rule 5.2(2)(h) of the Land and Environment Court Rules 2007 to read as follows: 1. Within 14 days of the date of this orderBy no later than 23 January 2025, publicise the offences and the orders made against it by posting the text of Annexure A to these orders on its Facebook wall, together with a hyperlink directly to the Court's judgment as published on the New South Wales Caselaw website and tagging the Environment Protection Authority in the post. The post is to be made between the times of 8am and 10am or between 4.30pm and 6.30pm on a weekday. This post must remain a pinned post on Facebook that remains at the top of the Sydney Water Facebook page for a minimum of 7 days; 2. Within 14 days of the date of this orderBy no later than 23 January 2025, publicise the offence and the orders made against it by tweeting the following text from its X account: @SydneyWaterNews was prosecuted by @NSW_EPA and convicted of a licence breach offence following an overflow of untreated sewage into Powells Creek, Strathfield in January 2022. Total monetary penalty of $200,000 to be paid to the Environmental Trust established under the Environmental Trust Act 1998, in lieu of a fine: [insert hyperlink to judgment as published on NSW Caselaw website] together with a hyperlink directly to the Court's judgment as published on the New South Wales Caselaw website. The tweet is to be made between the times of 8am and 10am or between 4.30pm and 6.30pm on a weekday. This tweet must remain a pinned tweet on X that remains at the top of the Sydney Water X page for a minimum of 7 days. The Environment Protection Authority may tag Sydney Water's X account in any Environment Protection Authority tweets about the judgment; and 1. Within 14 days of the date of this orderBy no later than 23 January 2025, publicise the offences and the orders made against it by posting a photograph of Powells Creek at Strathfield with the words "Sydney Water convicted of licence breach" in bold text inserted over the top of that photograph on its Instagram account with the following caption: @SydneyWaterNews was prosecuted by @NSW_EPA and convicted of a licence breach offence following an overflow of untreated sewage into Powells Creek, Strathfield in January 2022. Total monetary penalty of $200,000 to be paid to the Environmental Trust established under the Environmental Trust Act 1998, in lieu of a fine: [insert hyperlink to judgment as published on NSW Caselaw website] #sydneywater #environment #EPA #NSWEPA #powellscreek together with a hyperlink directly to the Court's judgment as published on the New South Wales Caselaw website (as indicated above). The post is to be made between the times of 8am and 10am or between 4.30pm and 6.30pm on a weekday. This post must remain on its Instagram account for a minimum of one month.

********** 2022/392933 Annexure A

Amendments 04 March 2025 - 04 March 2025 - Variation to orders uploaded. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 March 2025