Environment Protection Authority v Sydney Water

COURT OR TRIBUNAL

New South Wales Land and Environment Court

DATE FILED (OR FIRST HEARING DATE)

05/12/2022

LITIGATION TYPE

Corporate Accountability

SUBJECT MATTER

Environmental harm

REVIEW TYPE

N/A

SUMMARY

SENTENCE ‑ charge of pollute waters ‑ overflow of sewage pumping station caused during repair of split rising main ‑ overflow of untreated sewage from pumping station into waterway ‑ Defendant convicted after trial on “not guilty” plea ‑ consideration of the extent of the environmental harm caused by the offending conduct - the offending conduct to be characterised as being toward but not at the lowest end of the low range of offending conduct - consideration of the appropriate starting penalty - a proposal that portion of the appropriate starting penalty be diverted to a local environmental project in the vicinity of the location where the pollution incident occurred - appropriate to order funding contribution for the environmental project - appropriate to order publication of a notice in the Daily Telegraph for educative and deterrence purposes - appropriate to order letter of apology signed by the Defendant's Managing Director to occupants of residences potentially adversely impacted by the additional pollution for which the Defendant has been convicted - no valid reason why the Defendant should not be ordered to pay the Prosecutor's costs of the proceedings with any dispute as to how those costs were to be disentangled from the overall costs of the liability proceedings to be addressed through a conventional costs assessment process - total monetary penalty of $200,000 of which $45,000 is to be paid to Fairfield City Council as a contribution toward the cost of the Quest Avenue Vegetation Swale Project proposed to be undertaken by that Council - a moiety of the residue of the financial penalty (being 50% of $155,000) to be paid to the Prosecutor pursuant to s 122 (2) of the Fines Act 1996

“On 14 January 2019, a sewer rising main split at Carramar, a suburb in south‑western Sydney. Over the following period of a little over 36 hours, staff of Sydney Water Corporation (Sydney Water) removed the split section of pipe and replaced it. The complex process of achieving this resulted in untreated effluent being discharged not only from the split pipe, but also from a nearby sewage pumping station located in Carrawood Reserve (the Reserve). This pumping station had needed to be shut down as part of the process of stemming the effluent flow in the split main in order to effect its repair. As a consequence of this incident, the Environment Protection Authority (the Prosecutor) charged Sydney Water with three offences, alleging breaches of the Protection of the Environment Operations Act 1997 (the POEO Act).”

“The Prosecutor proposes that I should order that part of the amount that I otherwise conclude should be the appropriate penalty to be imposed on Sydney Water should be the subject of an order pursuant to s 250(1)(e) of the POEO Act to finance an environmental project in the vicinity of the location at Carramar where Sydney Water’s offending pollution occurred. Sydney Water does not oppose the making of such an order…However, against the potentiality that there may be any uncertainty in the project’s commencement in what are undoubtedly difficult financial times for local councils arising from unfunded and unbudgeted climate change impacts (damage to local roads from recent extensive rain events being likely to have impacted the Council, for example), it would be appropriate for the Prosecutor to write to the Council informing the Council of the contribution to be made by Sydney Water and to propose that, if for any reason the project did not proceed, the expectation was that the contribution from Sydney Water would be used for alternative environmental projects within that local government area.”

CASE DOCUMENTS

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