Land and Environment Court New South Wales

• Medium Neutral Citation: Environment Protection Authority v Tea Garden Farms Pty Ltd [2012] NSWLEC 89
• Hearing dates: 12, 13, 14, 15 April 2011
• Decision date: 30 April 2012
• Jurisdiction: Class 5
• Before: Craig J

Decision

Orders as set out at [154]

• Catchwords: ENVIRONMENTAL OFFENCE: - pollution - s 120(1) of the Protection of the Environment Operations Act 1997 - discharge of sediment-laden water from rural dam into the waters of a marine park - failure to obtain competent advice before undertaking dam repairs - excavation at base of dam wall to repair damaged drainage pipe caused dam wall collapse - work incompetently undertaken - principle that offender cannot be sentenced for more serious offence - plea of guilty - harm reasonably foreseeable - contrition and remorse - deterrence - parity - publication order
• Legislation Cited: Clean Air Act 1961 (now repealed); Environmental Planning and Assessment Act 1979; Crimes (Sentencing Procedure) Act 1999; Marine Parks Act 1997; Protection of the Environment Operations Act 1997
• Cases Cited: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357; Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234; Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; Environment Protection Authority v Barnes [2006] NSWCCA 246; Environment Protection Authority v BMG Environmental Group Pty Ltd and Barnes [2012] NSWLEC 48; Environment Protection Authority v Fulton Hogan Pty Ltd [2008] NSWLEC 268; (2008) 163 LGERA 345; Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65; Environment Protection Authority v Pipeline Drillers Pty Ltd [2012] NSWLEC 18; Environment Protection Authority v Snowy Hydro Ltd [2008] NSWLEC 264; (2008) 162 LGERA 273; Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357; R v De Simoni [1991] HCA 31; (1991) 147 CLR 383; R v Moffatt [2000] NSWCCA 174; (2000) 112 A Crim R 201; R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; State Pollution Control Commission v Hunt (1990) 72 LGRA 316
• Category: Sentence
• Parties: Environment Protection Authority (Prosecutor); Tea Garden Farms Pty Ltd (Defendant)
• Representation: Mr B Docking (Prosecutor); Mr T F Robertson SC with Mr T Howard (Defendant); Department of Environment, Climate Change and Water (Prosecutor); Elson Pow and Associates (Defendant)
• File Number(s): 50027 of 2010

Judgment

1 The defendant, Tea Garden Farms Pty Ltd, has pleaded guilty to an offence against s 120(1) of the Protection of the Environment Operations Act 1997 (the POEO Act) in that it caused waters to be polluted. The offence occurred on 19 May 2009 on land at Bundabah, near Port Stephens, on the Mid North Coast of New South Wales. The land in question, which is owned by the defendant, comprises lots 101 and 104 in Deposit Plan 1049845 (the Property) which have frontage to North Arm Cove and Fame Cove, Port Stephens.

2 The offence occurred while preliminary repair work was being undertaken on a dam that had been constructed on the Property. An employee of the defendant was excavating at the base of the dam wall in an endeavour to replace a blocked drainage pipe. During the course of that excavation, an 11m section of the dam wall partially collapsed, resulting in sediment-laden water from the dam flowing approximately 186m west into North Arm Cove. The waters of the Cove form part of the Port Stephens - Great Lakes Marine Park (the Marine Park).

3 Section 120 of the POEO Act provides:

"120 Prohibition of pollution of waters

(1) A person who pollutes any waters is guilty of an offence.

(2) In this section:

pollute waters includes cause or permit any waters to be polluted."

4 The facts relevant to the commission of the offence are not in dispute. They are contained in a Statement of Agreed Facts prepared by the prosecutor and the defendant. That Statement has been supplemented by a large number of documents together with affidavit evidence led on behalf of each party directed to matters relevant to the imposition of the sentence to be imposed upon the defendant.

Background

Development consent for dwellings

5 On 20 January 2003, Great Lakes Council (the Council) granted development consents under the provisions of Pt 4 of the Environmental Planning and Assessment Act 1979 (the EPA Act) for the erection of a two storey dwelling on each of the two lots that comprised the Property. There are two conditions, common to each development consent, that are of present relevance.

6 Condition 17 of each consent required the construction of an access road to each house site and specified the construction standard for such road. In specifying those standards, the condition required that the capacity of road surfaces and any bridge be sufficient "to carry fully loaded fire fighting vehicles". The heading to the condition indicates that it was imposed to ensure compliance with the document entitled Planning for Bushfire Protection.

7 Condition 19 of each development consent required that a dam be provided on the Property, having a minimum capacity of 25,000 litres. Two wheel drive vehicular access was required to the dam "to allow fire tanker access". The condition did not contain any specification for, or construction details of, the required dam.

8 At the time of grant of these development consents, the Property was not owned by the defendant. It did not acquire the Property until October 2006.

9 In June 2004, surveyors acting for the owner of the Property made application to the Council for a construction certificate relating to the road required to be constructed in accordance with conditions 17 and 19 of the Development Consent. Plans accompanying the application included road and drainage design. The Council's response to the application, by hand written note, endorsed on the letter accompanying the application, was to indicate that it was "not a certifying authority for construction of internal roads". Subsequently, those same surveyors submitted to the Council construction drawings for the design and construction of the intersection between the proposed internal road and Bundabah Road, the latter being a public road.

10 It would seem that the Council subsequently issued a construction certificate for the intersection between the internal or private road and the public road. The design and construction drawings submitted for that purpose did not include any detail of the road as it ran to the proposed dwelling sites nor did those plans contain any detail of dam construction required by condition 19.

11 This then was the position that pertained when the Property was acquired in 2006 by the defendant. At or about that time the defendant also acquired lots on adjoining land (the Adjoining Properties).

Construction of a road and dam

12 Having obtained a construction certificate from the Council in July 2007 for the erection of one of the dwellings for which development consent had been obtained, the defendant subsequently determined to construct the internal access road and dam required by the conditions of consent. For that purpose a local earthmoving contractor was retained.

13 In March 2008 the contractor commenced the construction work. The new access road followed the path of an existing track. Road construction was undertaken such that in one section an area was excavated and the excavated material used to elevate the road so that the resulting embankment created the headwall to a dam, with the road running along the top. This work resulted in the road level being raised approximately 8m above natural ground level on the downhill side with the top of the headwall and road being widened to approximately 5m. It is convenient to refer to this construction as "the dam" or "the dam wall".

14 At the point where the level of the existing track was raised in this manner there was a concrete pipe that passed beneath the track. As construction of the new road above continued, this pipe was extended so as to accommodate the batter of the road embankment but otherwise the pipe was not altered. It was thought that it would continue to drain water through the newly constructed dam wall. No engineering advice was sought as to the size of pipe required nor the capacity of the pipe to bear the load of the newly constricted embankment above.

The engagement of a farm manager

15 Mr Phillip Lee was and remains the sole director of the defendant. It was Mr Lee who provided evidence on behalf of the defendant and it was he who appeared to undertake all management activities on behalf of the defendant.

16 In October 2007, the defendant, through Mr Lee, employed Ms Lin Aow to work for the company. Initially, she was employed to undertake administrative duties at the defendant's office in Sydney. The total period of her employment with the defendant was from October 2007 until 30 June 2009.

17 Although, as I have said, Ms Aow undertook administrative tasks for the defendant at its Sydney office, the contract of employment that she signed was as farm manager of the defendant's land holdings at Bundabah, including the Property. That role was assumed in about September 2008 when she was directed by Mr Lee to spend more time undertaking farm management activities at Bundabah. Her tasks included working with consultants attending the Property, ensuring farm machinery was maintained, buying fertilisers and attending to the welfare of farm animals. She was directed in her activities by Mr Lee.

18 Prior to commencing her employment with the defendant, Ms Aow had not previously had any farming or farm management experience. Further, she had no experience of environmental management in a rural setting nor did she have any practical engineering experience. For his part, Mr Lee did not consider that experience in any of these areas was necessary.

Development of the defendant's land at Bundabah: Pt 3A of the EPA Act

19 Between January 2007 and the early months of 2008, eight development applications were submitted by the defendant to the Council for determination. These applications related to the erection of dwellings, various farm sheds and the construction of dams. The applications related not only to the Property but also to the Adjoining Properties which, as I have earlier indicated, had been acquired by the defendant.

20 By order published in the Gazette on 26 May 2008, the Minister for Planning declared that development of the defendant's lands at Bundabah, including the Property, was a project to which Pt 3A of the EPA Act applied. The order was made pursuant to s 75B(1) of the EPA Act. This had the consequence that the Minister was required to approve any development of the defendant's land.

21 On 2 September 2008, Mr Lee, on behalf of the defendant, met with staff of the Department of Planning in relation to the defendant's development proposals for its lands at Bundabah. The preparation of a concept plan for approval under Pt 3A was contemplated but that plan was yet to be formulated.

22 Following that meeting, the Department of Planning wrote to Mr Lee identifying the need for the defendant "to refrain from any further development activities on the Property" until agreement had been reached with Departmental officers for its future development. Enclosed with the Department's letter was a form of Deed Poll in favour of the Minister. The terms of the Deed required, in substance, that the defendant refrain from carrying out any development work on its Bundabah Properties, including development authorised by the consents granted in 2003, unless and until the Minister had granted concept plan approval for development under s 75O of the EPA Act. The Deed also contained a provision whereby the defendant agreed that pending determination of a concept plan application, it would not carry out any work, including agricultural activities, on the Property except for those works which were approved by the Director-General or his representative. The defendant executed the Deed on 30 January 2009.

The need for dam repairs

23 In January 2009, Dr Justin Meleo, an Environmental Consultant retained by the defendant visited the Property. Dr Meleo observed the dam that had been constructed on the Property and the water level retained by it. He advised Ms Aow that the volume of water retained by the dam wall should be limited as if the level rose too high and the volume became too great, a licence for the dam would be required. Dr Meleo also advised Ms Aow that care should be taken to avoid the discharge of sediment-laden water from the dam into Port Stephens. In consequence of this latter advice, Ms Aow arranged the construction of sediment fences on the western or downhill side of the dam wall.

24 Mindful of the advice given to her by Dr Meleo, Ms Aow kept a frequent check on the water level of the dam. In that context she observed that the extended pipe beneath the dam was discharging at a very low rate. She thought it may have been blocked. She reported her observation to Mr Lee who instructed her to have the pipe fixed, once the dam water had dropped below the level of the pipe. Mr Lee indicated to Ms Aow that by reason of the Deed Poll executed by the defendant, any repair work to the dam would first require approval by the Department of Planning.

25 Mr Gordon Kirkby of JBA Urban Planning Consultants Pty Ltd (JBA) was retained by the defendant to deal with the Department of Planning in relation to the defendant's Bundabah properties. In particular, he was engaged to negotiate with the Department to seek approval to carry out essential works pursuant to the provisions of the Deed Poll.

26 Having visited the Property, Mr Kirkby wrote to the Department on 19 February 2009 indicating that "emergency earth stabilisation works" were required to be carried out on the Property. He stated that, having executed the Deed Poll, the defendant had ceased all work on the Property, leaving the access road, including that portion of it that ran across the top of the dam wall, and the face of the wall, unfinished. He considered that in its incomplete state, the partially constructed road was unstable, with signs of earth slippage on the face of the newly constructed dam wall. Those observations were recorded in his letter and founded the basis for the application to carry out stabilisation works. While Mr Kirkby had town planning qualifications, he was not a qualified engineer.

27 The response from the Department was prompt. By letter dated 20 February 2009, Mr Kirkby was advised that the carrying out of "essential stabilisation works" was approved, subject to the Council being consulted in relation to that work "and any necessary work being undertaken under Council's direction."

28 Between February and April 2009, on a date that is unknown, Mr Lee and other representatives of the defendant met with Mr Glenn Handford, the Director of Planning at the Council, in order to discuss the Council's requirements for remedial works to be undertaken. At that meeting Mr Handford outlined the Council's requirements. Among those was the provision of engineering plans for the works contemplated as well as identification of the source of materials, on site, to be utilised for the purpose of stabilisation works.

29 Notification was given by letter from JBA to the Council on 1 May 2009 of the intention of the defendant to carry out remedial works. Accompanying the letter were engineering drawings that had been prepared for construction of the internal access road. These plans did not fully address the requirements indicated by Mr Handford in that they did not specifically identify engineering plans for remedial work to be undertaken nor did they identify the source of onsite materials to be used for those works.

30 Being anxious to proceed with the remedial work, Ms Aow again consulted Dr Meleo. He prepared a sketch plan indicating the location of what was described as the "borrow pit" from which materials were to be obtained and also indicated, in sketch form, the face of the dam wall in respect of which further work was to be undertaken by rock reinforcement, placement of additional fill and stabilisation with other material. These sketch plans were taken to the Council by Ms Aow.

31 By letter dated 8 May 2009, Mr Handford, writing on behalf of the Council, indicated approval of works "to repair the existing slump". The letter further required that the defendant submit to the Council, within one month, a plan prepared by "an appropriately qualified person ... advising of the integrity of this structure".

32 In the meantime, the Property, along with the Adjoining Properties had been inspected by officers of the Department of Environment and Climate Change (DECC), the Department of State of which the prosecutor was then part. The purpose of their inspection was unrelated to the present charge. However, in the course of their inspection, observations were made about the state of the unfinished internal access road and dam wall. The observations made by those officers were recorded in a letter sent by DECC to Mr Lee on 6 May 2009. It recorded that "earthworks and a number of large earth dams were in need of urgent repair". The letter further stated that failure of those structures "could lead to significant pollution to Fame Creek and/or Port Stephens". Mr Lee was advised that the defendant should take necessary action to "ensure strict compliance" with s 120 of the POEO Act.

A new employee is engaged: dam repairs are commenced

33 Having been advised that remedial or stabilisation work was authorised on the Property, Ms Aow formed the opinion that the water level in the dam needed to be reduced before this work was undertaken. This, she reasoned, could only be achieved if the pipe beneath the dam wall was replaced because of the blockage that appeared to be limiting the flow of water through that pipe.

34 The defendant determined that a farm labourer should be employed to assist with this task as well as performing general farm duties. To this end, it advertised the availability of the position in a Chinese language newspaper.

35 On 14 May 2009, in response to the advertisement, Ms Aow received a telephone call from a person identifying himself as Henry Chen. Ms Aow indicated to Mr Chen that the defendant was seeking to employ a farm labourer, particularly one who could operate farm machinery. Mr Chen indicated that he was able to operate machinery. Without obtaining any more detail, Ms Aow told Mr Chen that he would be employed by the defendant on a trial basis. This conversation and engagement took place while Ms Aow was in Sydney.

36 On the following day, Ms Aow and Mr Chen travelled to the Property together. Mr Chen was taken to the dam wall where Ms Aow explained that the defendant wanted "to dig up" part of the dam wall in order to replace the blocked pipe which she then showed Mr Chen. Ms Aow also instructed Mr Chen to ensure that he did not dig below the water level as that might lead to water flowing from the dam. Mr Chen indicated that he knew "what to do".

37 Prior to engaging Mr Chen, Ms Aow did not enquire of him as to his experience in undertaking general farm work or as to the nature of the machinery that he was able to operate. She enquired whether he had any experience in operating a small excavator, the equipment to be used in attempting to repair the dam wall. While Mr Chen indicated that he could use an excavator, no enquiry was made of him as to his experience in so doing.

38 Mr Chen commenced operating the excavator in an endeavour to remove the blocked pipe in the afternoon of 15 May 2009. Excavation work continued on each of the four following days.

39 Between the time at which apparent instability of the dam wall was identified by Mr Kirkby and the commencement of excavation work by Mr Chen, the defendant had not retained any qualified engineer to assess stability of the dam wall nor had it obtained advice from an engineer as to those measures appropriate to be taken in order to address the perceived instability. As I have earlier recorded, Mr Kirkby was not an engineer and it is not suggested that the officers of DECC who inspected the Property in early May had engineering qualifications, albeit they were able to observe instability of surface materials. Moreover, while the sketch plans prepared by Dr Meleo were accepted by the Council, Dr Meleo was a hydro-geomorphologist, not an engineer. In particular, no engineering advice was sought as to the measures appropriate to be taken to remove the blocked pipe beneath the dam wall and replace it with a new pipe.

The offence: partial collapse of the dam wall

40 On the morning of 19 April 2009, Mr Chen was operating the excavator on the downstream side of the dam wall as he had been doing during the preceding four days. As he was operating the excavator in the vicinity of the blocked pipe, the dam wall partially collapsed causing the escape of sediment-laden water in the direction of North Arm Cove.

41 Ms Aow was not present at the Property when the dam wall collapse occurred. She had left earlier that morning to buy a replacement concrete pipe to be installed beneath that wall. Upon her return later that morning she was informed of what had occurred and enquired of Mr Chen how it had happened. He responded by indicating that he was digging towards the opening of the pipe when he "noticed a part of the pipe had been crushed". He indicated that the soil around the pipe fell in and it was then that water flowed out from the dam. In response to a further question from Ms Aow as to how water could have escaped if he was digging above the level of water in the dam, Mr Chen responded:

"The pipe was at an angle sloping downwards from the inside of the dam to the outside of the dam, so when the wall collapsed there was a body of water behind it which flowed out."

42 The sediment-laden water flowed through the partially collapsed dam wall into North Arm Cove. Oyster farmers, who, at that time were attending oyster leases in North Arm Cove, heard a noise, apparently associated with the collapse of the dam wall, and then the sound of water rushing towards the Cove. They observed the gush of water entering the Cove from the Property at about 10.00am. That flow of water continued until about 3.00pm that same day. One of the farmers described the water as being "dirty muddy water with bits of debris, leaf matter, sticks and logs washed into the sea water". The dirty water plume was observed by them to spread out over the waters of North Arm Cove extending for a distance of about 100m offshore in a period of about 20 minutes.

43 One of the oyster farmers who observed the dirty water discharge into North Arm Cove, contacted NSW Fisheries to report what had occurred. The latter agency notified DECC. An investigating officer from DECC then telephoned Ms Aow to advise her that the spill had been reported and requested that she meet with the officer later in that day. Ms Aow, who was not at the Property at the time of the telephone call, returned to the Property.

44 At about 2.00pm on 19 May two officers from DECC attended the Property where they inspected the collapsed dam wall. They also observed the flow path along which dam water had moved into North Arm Cove.

45 They determined that an 11m section of the dam wall had partially collapsed. The total length of the wall was about 65m. At the time of their visit a small stream of water was continuing to flow through the collapsed section of the wall. The flow path towards North Arm Cove was approximately 186m in length. The officers observed uncompacted soil and clay sediment on the surface of the land between the collapsed section of the wall and the inter-tidal zone of North Arm Cove. Along this path, the land showed the affects of being scoured by the dam water which had flattened vegetation.

46 On 21 May 2009, a Clean-Up Notice was issued to the defendant under s 91 of the POEO Act.

Compliance with the Clean-Up Notice

47 Following receipt of the Clean-Up Notice, Ms Aow and Mr Chen installed sediment fences downstream of the collapsed section of the dam wall. This was an endeavour to meet one of the requirements of that Notice. This work was inspected by an officer of DECC on 25 May who observed that the rate of flow down the flow path from the collapsed dam wall was "markedly slower" than what had been observed on 19 May. Nonetheless, the flow continued to North Arm Cove.

48 The following day, Dr Meleo was engaged to advise upon compliance with the Notice. Apparently as a consequence of his advice, contractors were engaged to carry out works, some of which were undertaken on 27 May 2009. Those works involved sediment control works downstream of the dam, involving the construction of three rock groins and the erection of further sediment fences.

49 Heavy rainfall occurred in the Bundabah area in the latter part of May and again in mid June 2009. This rain affected the capacity of the defendant to continue with work directed to compliance with the Notice.

50 On 17 June, the defendant requested that its consultant and contractors attend the site in order to address the work required. However, it was noted that ground conditions at this time were so wet that the earthmoving contractor had to remove excavators from the Property and suspend remediation work. At that time it was noticed that suspended sediment continued to flow from the dam into North Arm Cove. Sediments previously deposited along the flow path were being washed downstream into the Cove.

51 In mid July 2009, the defendant engaged Parsons Brinckerhoff Australia Pty Ltd (PBA) as consultants to advise it on geotechnical engineering and erosion and sediment control measures necessary to be addressed at the Property. The retainer of PBA was to replace the former consultant represented by Dr Meleo. As a result of site inspection by experts from PBA, recommendations were made to the defendant as to necessary stabilisation works in order to comply with the Clean-Up Notice. A copy of the recommendations were provided to officers of DECC.

52 It would seem that between August and December 2009 some further works were undertaken on behalf of the defendant, although these do not appear to have been carried out under the supervision of PBA or precisely in accordance with its recommendations. In December 2009, it was observed by a senior environmental scientist with PBA that site conditions had changed due to works that had been carried out on the Property on behalf of the defendant. It was indicated that this necessitated some change to the earthworks earlier recommended. In the meantime, a contractor arranged by PBA was to attend the site to carry out further works. A revised list of recommended stabilisation works was prepared by PBA on 28 December 2009, a copy of which was subsequently made available to DECC.

53 One of those inspecting the Property in December 2009 was Mr Frankcombe, the principal environmental scientist in the employ of PBA. It was his observation on that occasion that works carried out on the Property were, in some cases, inadequate to properly address sedimentation and erosion control. He considered that some of the sediment fences had been incorrectly located in that they were placed "up and down the contour", with the result that they merely functioned to divert water. Others had captured so much sediment that they had collapsed under the load and so required attention.

54 Mr Frankcombe also observed that water was discharging from the dam on the Property through pipes from the dam. The water being discharged was described as turbid, milk coffee coloured and was flowing into the waters of North Arm Cove. While the volume of water discharging and reaching the Cove was described as being "not large", it did reach the tidal zone and extended for about 3m or 4m into the waters of the Cove. The plume of discoloured water was readily observed because outside the area of its influence, the waters of the Cove were described as being clear with the bottom readily visible. While extending into the Bay for only the short distance that I have identified, the sediment-laden water had, by the time it reached the foreshore, spread laterally over a width of between 80m and 100m. It was entering the waters of the Cove at several points over this distance.

55 As a result of receiving the revised list of stablisation works from PBA, DECC sought details of the engineer responsible for its preparation and requested that an affidavit be prepared by that engineer in relation to his involvement with the defendant. Following receipt of this request, PBA advised the defendant that it would not undertake any more work or engineering assessment for the defendant at that time.

56 Efforts were then made by the defendant to engage another suitably qualified engineer. Ultimately, it retained the services of Mr G McVey to prepare a report on the stabilisation works required to complete compliance with the Clean-Up Notice. That retainer was given on 30 March 2010 and on 21 April Mr McVey provided a report detailing such work. That report was forwarded to officers of the Department Environment, Climate Change and Water (DECCW) as DECC had then become.

57 Subsequently, Mr McVey was engaged to retain contractors who carried out stabilisation works in accordance with his recommendations. A report was prepared by him on 22 June 2010 advising of progress being made in implementing his recommendations. He also indicated at that time that the site was stable but that the contractor had been instructed to cease work due to very wet conditions at the Property. His report was sent to DECCW on 7 July 2010. Mr McVey continues to supervise rehabilitation works at the Property on behalf of the defendant.

58 Mr McVey is a consulting engineer with experience in earth dam and drainage design. In evidence, he disagreed with any suggestion that the dam wall, as constructed, was in need of stabilisation. He acknowledged that the face of the embankment was susceptible to erosion but that the structure itself had adequate stability due to the width of the embankment at its base. His evidence was not challenged by the prosecutor.

Causes of pollutant discharge

59 On the hearing before me there was initially much debate and considerable time taken in seeking to refine, in great detail, various causes of the failure of the dam wall that resulted in the discharge of sediment-laden water into the North Arm Cove estuary. Ultimately, much of the debate was resolved by agreement and there remained no difference of substance between the parties as to the cause.

60 The endeavour to express in very great detail all of the causes that might be divined from the evidence, as was sought to be done by the prosecutor, may have unnecessarily lengthened the hearing. The question of cause required no more than an application of common sense to the facts found, those facts being largely agreed by the defendant (R v Moffatt [2000] NSWCCA 174; (2000) 112 A Crim R 201 at [61]-[72]).

61 In essence, the agreed position between the parties as to the causes of pollution may be summarised as being:

(i) excavating or causing the excavation of the dam wall in the vicinity of a defective pipe near the base of that wall in a manner that caused the road or dam wall to fail, resulting in the escape of sediment-laden water, and 

(ii) in carrying out that excavation or causing it to be carried out for the purpose of removing and replacing the drainage pipe, the defendant failed to ensure the integrity of the road or dam wall in order to avoid its collapse which resulted in water pollution.

62 It is also agreed between the parties that in addressing the integrity of the road or dam wall in the course of undertaking the excavation that it did, the defendant:

(i) should have ensured that a competent person or an experienced dam builder supervised the excavation work required to access the faulty pipe and its removal;

(ii) should have ensured that the excavation work required to access the faulty pipe and its removal was undertaken by a competent earthmoving contractor;

(iii) should have obtained an adequate design and/or plan of the excavation works from a suitably qualified engineer or experienced dam builder, to ensure that risks to the integrity of the structure were minimised, and that if the risk of collapse was an acceptable construction risk, that any escape of polluted water was avoided.

These are, in effect, particulars of the causes identified in the preceding paragraph.

63 The evidence before me supports this summary of causes and the particulars or elaboration of them just stated. In addition to those background facts which I have already recorded, there are further facts directed to cause which need to be noticed.

64 Sediment fences had been installed below the dam wall by the defendant prior to 19 May 2009. This had been undertaken as a routine sediment control measure. However, there were no measures taken to arrest sediment in the event of a dam wall failure prior to commencement of excavations directed to removal and replacement of the defective drainage pipe.

65 I have already referred to the sketch plan prepared by Dr Meleo for submission to the Council in order to obtain its authorisation to carry out remedial work. While Dr Meleo was an expert in erosion and sedimentation controls, his plan for proposed stabilisation of the external wall of the dam did not include any plan for, nor did he address, excavation of the dam wall for any purpose. Prior to that excavation taking place, no plan, test or inspection was prepared or carried out for the purpose of assessing the environmental risk of carrying out excavation work.

66 While it did not contribute to the collapse of the dam wall, there was evidence of the outer face of the wall eroding prior to 19 May 2009. Construction work in relation to the dam and road was incomplete when the defendant executed the Deed Poll in favour of the Minister by which it promised not to do any further work on the Property unless it first obtained the Minister's approval.

67 In the period prior to 19 May 2009, the defendant had been advised by its own experts, albeit no one with engineering expertise, that the dam wall was unstable. The attempt made by the defendant to unblock and replace the defective pipe was made in order to facilitate the stabilisation of the embankment by first reducing internal pressure from the water body against the dam wall. As earlier indicated, the defendant's fault was failing to obtain advice from appropriately qualified experts or to engage a suitably experienced contractor to perform the excavation work.

68 The consequence of this failure is evident from a statement made by it to the prosecutor on 29 January 2010 when it said:

"Based on advice from our consultants, our company believes that the soil surrounding the blocked pipe collapsed probably because water leakage from the pipe (part of which was found to be crushed) into the soil over a period of time had weakened the structural integrity of that part of the dam wall. When excavation reached that part of the dam wall, it easily gave way".

Sentencing principles

69 The principles to be applied when imposing a sentence for a breach of the POEO Act have been considered and recited in many cases before this Court. More recently they were discussed by Biscoe J in Environment Protection Authority v BMG Environmental Group Pty Ltd and Barnes [2012] NSWLEC 48 at [86]-[91]. They were also referred to by me in Environment Protection Authority v Pipeline Drillers Pty Ltd [2012] NSWLEC 18 at [42]-[46] and also in Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65 at [42]-[46]. As summarised by the prosecutor, the statutory provisions to be applied in determining an appropriate sentence are:

(i) the maximum penalty provided by s 123 of the POEO Act for a water pollution offence by a corporation which is $1M;

(ii) the objects of the POEO Act as expressed in s 3(1);

(iii) the purpose of sentencing expressed in s 3A of the Crimes (Sentencing Procedure) Act 1999 (the CSP Act);

(iv) matters to be considered in imposing a penalty expressed in s 241 of the POEO Act; and

(v) aggravating, mitigating and other factors in sentencing expressed in s 21A of the CSP Act.

I do not understand the defendant to have disagreed with this summary.

Objective seriousness of the offence

70 The commencing point for consideration of objective seriousness or gravity of the offence in the present case is the maximum penalty imposed upon a corporation for committing the offence. I have already identified that maximum penalty. That maximum penalty is highly relevant in determining the objective gravity of the offence as it reflects the public expression through Parliament of the seriousness with which the commission of that offence is regarded (Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698).

71 Further, this Court has considered that, when determining the objective seriousness of an offence against the POEO Act, the objects of the Act may be taken into account (Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [168]-[172]). Relevantly, those objects are and were at the time of the commission of the offence:

"(a)to protect, restore and enhance the quality of the environment of New South Wales, having regard for the need to maintain ecologically sustainable development,

...

(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 ...

(ii)the reduction to harmless levels of the discharge of substances likely to cause harm to the environment,

...".

72 The prosecutor submitted that the defendant had acted to compromise these objects by failing to prevent degradation of the environment. This degradation occurred when sediment-laden water travelled approximately 186m across the Property and entered the estuary of North Arm Cove which was part of the Marine Park. Clearly, in the events that occurred, the submission of the prosecutor is correct.

Harm caused to the environment: s 241(1)(a) of the POEO Act

73 The word "harm" in the context of the phrase "harm to the environment" is defined in the Dictionary to the POEO Act. It is defined to include:

"... any direct or indirect alteration of the environment but has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution."

There can be no doubt that, within the meaning of that definition, there was environmental harm occasioned by the commission of the offence. The physical condition of the waters of the Marine Park were altered by reason of the flow of sediment from the Property into those waters.

74 At the level of principle, it is necessary to consider harmfulness not only by identifying the actual harm, but also considering the potential or risk of harm by reason of the acts or omissions that found the offence in question. (Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299 at [145]). This principle is important to be noticed because the defendant submits that there was no evidence of actual harm by the discharge of sediment into North Arm Cove. In making that submission, the defendant clearly does not include the visual appearance of the water described by the oyster fishermen in the vicinity of the Property when the discharge occurred. They described that discharge of dirty muddy water, with debris, leaf matter, sticks and logs, turning the seawater "a dirty creamy colour". This discharge took place into the clear and apparently clean waters of the North Arm Cove estuary. These observations leave no doubt about the visual pollution that occurred.

75 The essence of the defendant's submissions in this regard seem not to quarrel with the appearance of the sediment-laden discharge but rather to suggest that pulses of similarly coloured discharges from the Property and surrounding land would have occurred naturally following heavy rainfall. While there was some evidence of a general nature that run-off from land into the estuary is likely to have occurred following rainfall, no evidence was led to suggest that the discharge occasioned by the defendant on 19 May was directly comparable to that which would occur following heavy rain. Not the least reason for this is the fact that the volume of dirty water discharged on 19 May 2009 is unknown.

76 The extent to which there was either actual or potential harm from the discharge that occurred on 19 May 2009 was the subject of two sources of evidence. The first was from Dr Alan Jordan and Mr Paul Anink, experts retained by the prosecutor and defendant respectively, whose evidence was directed to marine ecology. The second source of reference directed to potential harm was that from oyster farmers who observed the occurrence and who held oyster leases for areas within the North Arm Cove estuary.

77 Dr Alan Jordan is a senior environmental scientist who, at all relevant times, was employed in DECCW. Paul Anink is an environmental scientist specialising in marine and freshwater ecology. Prior to the sentence hearing, Dr Jordan and Mr Anink met, as a result of which they prepared a joint statement directed to the environmental impact upon the waters of North Arm Cove following the discharge from the Property on 19 May. In this context, they addressed three issues:

(i) the extent of sediment deposition;

(ii) the extent of impact upon the benthos; and

(iii) the impacts on seagrass.

The joint report of these experts reveals agreement between them in assessing the environmental impact, based upon the observations recorded at the time of discharge, their knowledge of the local environment and their subsequent visits to the area.

78 Having regard to the evidence with which they were provided, Dr Jordan and Mr Anink accept that there was an unquantified volume of fine sand, silts and clay deposited onto the intertidal shores of North Arm Cove. The deposit of these materials would have resulted in progressive settlement of coarser material inshore and finer material offshore. Although core samples had been taken by investigation offices from DECC, there was a lack of adequate information as to the location of these cores or their content, with the result that they were unable to provide "any considered judgment as to the depths of deposited sediments."

79 The experts agree that there was insufficient data to enable them to reach any conclusion upon the impact that this material would have had on the benthos. They accepted that on the information provided, the spatial extent of deposition "could have been in the order of 2,000 to 4,000m2 of intertidal seabed comprising thin sand over coffee rock inshore to sandy silt offshore." They accepted that the impacts on "benthic assemblages" would not have been statistically significant. Further, impacts upon the conservation values of the Marine Park were agreed to be negligible "at least on the basis that following impact there would have been recovery/recolonisation within a reasonable time." Implicit in that agreement is impact from the deposition of sediments albeit of short-term duration.

80 It is apparent from the joint report that, given the seagrass distribution in the North Arm Cove estuary, there was no indication of measurable change on seagrass plants or on seagrass biota. The scientists concluded that "on the basis of probability there was likely no significant impact on the medium term basis." Once again, these expressions of opinion, which I accept, indicate that while some harm may have been occasioned to the marine ecology, it was both minor and of short-term duration.

81 On the morning of 19 May 2009, the holders of an oyster lease in North Arm Cove were working on racks and trays of oysters that were in the last cycle of growth prior to harvesting and sale. This lease area was used by the farmers in question as a harvest area, meaning that oysters were transferred to this area for a period of six to nine months in order to finish the growth cycle and "fattening" before sale. Any fall in water salinity at this stage of the growth cycle had the potential to cause spawning of the oysters, meaning that they would lose condition and become unsaleable.

82 As I have earlier recorded, on the morning of 19 May the oyster farmers heard a noise associated with the breach of the dam wall at about 10.00am. They observed water gush towards the shoreline and then run into an area of North Arm Cove near to the oyster lease area. They were able to observe the flow of dirty coloured water from the Property as it spread across North Arm Cove in the direction of their oyster racks. They returned immediately to those racks closest to the plume of dirty water, collecting trays of oysters that had just been washed. They did this not only to avoid the oysters being affected by any of the sediment but also in anticipation that the water was freshwater, having the potential to lower the level of salinity. They were successful in removing all of the washed trays, with the consequence that there was not ultimately any detrimental impact upon their oysters.

83 As was observed by Mr Anink in his evidence, the oyster farmers "had a right to be concerned ... as at the time they were in no position to know the extent, origin or content of the plume." As it happened, water quality measurements undertaken by officers of DECC on 19 May, following the discharge, indicated that water quality parameters were within guideline values for oyster aquaculture as recorded in a table to State Environmental Planning Policy No 62 - Sustainable Aquaculture. Nonetheless, Mr Anink acknowledged not only the legitimate concern of the oyster farmers, as I have indicated, but he also acknowledged that additional work was occasioned for them by delaying harvesting until satisfied that oysters had naturally depurated any residual sediments that may have been ingested from the water discharged from the Property.

84 It is apparent from this evidence that, fortuitously, no actual harm was occasioned to the oysters. Nonetheless, the evidence also makes clear the potential for harm to the oysters growing in North Arm Cove.

85 Considering all elements of "harm", within the meaning of s 241(1)(a) of the POEO Act, I conclude that, overall, the environmental harm was in the relatively low range.

Practical measures: s 241(1)(b) of the POEO Act

86 Following commission of the offence to which the defendant has pleaded guilty, it took a number of measures directed to prevent or mitigate any discharge from the road embankment or dam on the Property. These measures have been earlier described and reflect measures of a kind that, had they been implemented prior to the events of 19 May, are likely to have at least controlled and mitigated any harm from the discharge of sediment-laden water. The fact that these measures, which included the placement of additional sediment fences and small sediment dams, were taken demonstrates that there were practical measures that could have been implemented prior to 19 May.

87 Significantly, I have earlier identified (see [62]) the significant steps that it omitted to take before seeking to rectify the blocked pipe at the base of the dam wall. The acceptance by the defendant that those were steps that it had omitted to take reflect practical actions open to it, that, if taken, are likely to have prevented, controlled or abated any harm should there have been a discharge of "dirty" water from the dam.

88 The evidence makes clear that there were practical measures open to be taken by the defendant to prevent, control or mitigate the harm consequent upon the discharge on 19 May 2009.

Foreseeability of harm: s 241(1)(c) of the POEO Act

89 The defendant accepts that an outflow of sediment-laden waters from the dam on the Property could cause the pollution of North Arm Cove. The defendant also accepts that such a consequence was objectively foreseeable. It submits that as a consequence of this foreseeable risk, 17 sediment fences had been installed downstream of the dam wall prior to 19 May 2009.

90 Notwithstanding this acknowledged foreseeability of water pollution from a dam discharge, the evidence reveals that in the circumstances there was need to exercise particular precaution in undertaking any works as the dam or dam area was vulnerable to discharge of sediment-laden waters because of particular defects or deficiencies that had been identified to it. This rendered discharge, with its consequences, reasonably foreseeable.

91 Without reciting the detail that has earlier been set out, the need for "emergency earth stabilisation works" had been identified by Mr Kirkby in February 2009. The need for such emergency works was the result of his observation that the road embankments that formed part of the dam wall were showing signs of slippage.

92 Following Mr Kirkby's observation there was the report of inspection by officers of DECC on 6 May 2009 in which the need for "urgent repair" to the dam was identified because of the observed damage "to [the] walls or lack of spill-ways". A concern was expressed in that letter that dam failure could lead to significant water pollution. On 7 May, Dr Meleo, writing to the defendant enclosing his sketch plan for dam rectification, stated that the "outer dam wall must be stabilised to prevent the further loss of material from the wall through erosion caused by rainfall run-off." It matters not that in 2010, Mr McVey expressed the opinion, as an engineer, that the integrity of the embankment to act as a dam wall need not have been questioned. Mr McVey does not challenge the observations made to the defendant prior to 19 May 2009 that surface instability was apparent, calling for remedial or stabilisation action to be addressed.

93 Moreover, presented with the observations provided to it prior to 19 May, the defendant could reasonably have foreseen that harm to the environment could be caused by the escape of sediment from extensive surface disturbance on the Property. Relevantly, such a discharge could reasonably be foreseen to occur from any area in which remedial works were being undertaken. That foreseeability would extend to any excavation being made into the face of the embankment, particularly in and around a pipe said to be blocked and intended to be replaced, when its very purpose was to provide drainage from the dam wall. Although work was undertaken when it was believed that the retained water level was below the invert of the pipe, the prospect of preferential seepage under or around a pipe is acknowledged by the defendant in a supplement to the Statement of Agreed Facts.

94 For these reasons, the prospect that there would be a dirty water discharge from works associated with the repair or replacement of the pipe was reasonably foreseeable.

Control over causes: s 241(1)(d) of the POEO Act

95 The defendant accepts that it had control over the causes that gave rise to the commission of the offence. Although there is no evidence to suggest that the defendant had control over the blockage of the pipe, the repair or replacement of which led to the commission of the offence, it certainly had control in determining whether to repair or replace it and how that repair or replacement should be undertaken.

Reasons for commission of the offence

96 A factor by which the objective seriousness of an offence may be measured is the reason for its occurrence. The only finding that can be made on the evidence before me is that the discharge of sediment-laden water from the Property into North Arm Cove on 19 May 2009 was accidental, in that it was clearly unintended.

97 The defendant's motive for excavating at the base of the outer face of the dam wall was to address a problem with a partially blocked pipe. It was undertaking that repair in order to avoid a contravention of the law, in that the dam that had been created by constructing the embankment for the road along its top, could only retain a maximum volume of 11 megalitres. unless construction of the dam was licensed to retain a greater volume. The defendant sought to abide by that limitation. This work was also the first step in addressing "urgent" remedial works to the dam wall.

98 In carrying out the excavation work, it was clearly the intention of Mr Lee and Ms Aow that any discharge from the dam be avoided. It was for this reason that they waited until the water level in the dam had dropped below the invert level of the pipe. That position was consistent with the instruction given by Ms Aow to Mr Chen.

99 For these reasons I determine the discharge to have been accidental.

Defendant's state of mind

100 It was submitted by the prosecutor that the acts of the defendant in excavating to repair the pipe at the base of the dam wall were, in the circumstances, reckless. Recklessness is suggested to arise because the defendant had or ought to have had foresight of the possibility that harm to the environment might occur from the escape of sediment-laden water from carrying out this work. Nevertheless, it proceeded to undertake the excavation.

101 The defendant submits that to punish the defendant on the basis that its actions were reckless would contravene the principle enunciated by the High Court in R v De Simoni [1991] HCA 31; (1991) 147 CLR 383. A finding of recklessness would be tantamount to finding an element of aggravation that would warrant conviction for a more serious offence, namely an offence against s 116 of the POEO Act. That approach would offend the dictum of Gibbs CJ (Mason and Murphy JJ agreeing) in De Simoni at 389.

102 I accept the submission of the defendant. While the provisions of s 116 of the POEO Act proscribe, in terms, conduct that "wilfully or negligently causes any substance to leak, spill or otherwise escape", it seems to me that "recklessly" causing a substance to escape is also conduct that is proscribed by the section. I would regard reckless conduct to involve a lower order of fault than "wilful" but to involve an equivalent, if not higher order of fault than "negligent" conduct. As conduct involving fault of the latter kind engages the provisions of s 116, it would make no sense to interpret the section as being inapplicable to conduct that was "reckless" (cf State Pollution Control Commission v Hunt (1990) 72 LGRA 316 at 325).

103 An allegation of negligence in assessing the objective gravity of an offence against s 120 of the POEO Act was considered by Biscoe J in Environment Protection Authority v Snowy Hydro Limited [2008] NSWLEC 264; (2008) 162 LGERA 273 at [142]-[150]. I respectfully embrace the consideration given by his Honour to the De Simoni principle in this context. Consistent with those reasons, I would not approach the imposition of a sentence in the present case on the basis that the conduct of the defendant was reckless.

104 Quite apart from questions of principle, I am not satisfied beyond reasonable doubt that the conduct of the defendant was reckless. As the defendant conceded, the task of repairing and replacing the damaged pipe at the base of the dam wall in the manner contemplated by Ms Aow and Mr Chen was incompetent. It was that incompetence that resulted in environmental harm. The concession as to incompetence is, on the evidence adduced before me, properly made. However, that incompetent conduct falls considerably short of reckless conduct. As I have earlier recorded, the defendant believed that appropriate precautions were being taken by ensuring that the water level in the dam was below the invert of the pipe in question before repair or replacement was undertaken. Recognition of the need to take that precaution is not consistent with a determination of recklessness.

Discharges subsequent to 19 May 2009: uncharacteristic aberrations?

105 The prosecutor points to the fact that following the commission of the offence on 19 May, there were further discharges of sediment-laden water from the Property referred to in the evidence. These discharges, so it submits, are relevant to the determination of the objective seriousness of the offence with which the defendant is charged because they demonstrate that the discharge on 19 May was not an uncharacteristic aberration.

106 In directing attention to these post offence discharges, the defendant relies upon observations made by Kirby P in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority. In Camilleri the defendant was charged with three offences of emitting odours from its premises contrary to the provisions of the Clean Air Act 1961 (now repealed). Two of the offences occurred in January 1991 and the third offence occurred in March 1991. In summarising factors indicative of the seriousness of the offences, Kirby P said (at 7):

"(7)The surrounding circumstances also suggest that the offences charged were not uncharacteristic aberrations. The evidence indicates that, from 1986 until shortly after the offences charged, similar odours were emitted every second night and most weekends for long periods of time. Such circumstances are not inconsistent with the defendant's plea. As such they are properly to be considered by this court. Indeed, one may suppose, that in a case such as this, such a history of circumstances sufficiently corresponds to what was described in Veen v The Queen [No 2] (at 477) so that the offences to which the appellant pleaded guilty may not be viewed as 'uncharacteristic aberration[s]'."

107 The discharges upon which the prosecutor relies in the present case may be divided into two periods. Those said to have occurred between 25 May and 18 November 2009 are in one category while the discharge observed on 2 December 2009 requires separate consideration. The latter discharge can be put aside for the moment.

108 Between 25 May and 21 June 2009, there are four observations of sediment-laden water discharging from the Property to North Arm Cove. In this context, it is to be noted that when sediment discharged on 19 May, it did so in a sheet flow across the Property towards the foreshore. As the water flowed in this manner, a quantity of sediment was deposited over the ground surface before reaching the foreshore. This material was then susceptible to movement by any subsequent rainfall so that it could then flow to the North Arm Cove estuary. This, in large measure, is what occurred between 25 May and 21 June - at least the evidence does not establish to the requisite standard that it was otherwise. The Statement of Agreed Facts acknowledges that heavy rain fell between 29 and 31 May and again between 16 and 21 June. In the case of the latter rainfall, ground conditions became so wet that excavators being used by the contractor engaged to carry out works in response to the Clean-Up Notice had to be removed from the site.

109 Further, it must be remembered that by reason of the Deed Poll which the defendant had executed in favour of the Minister for Planning, it was required to refrain from undertaking any work on the Property without the Minister's prior approval. In this context, it sought the Clean-Up Notice from the prosecutor and having received that Notice, engaged Dr Meleo to advise on compliance with it. In the meantime, additional sediment fences had been installed downstream of the collapsed dam wall pending the advice that the defendant sought.

110 Once the advice of Dr Meleo was received, contractors were engaged and work commenced in seeking to meet the requirements of the Notice. That work was extensive. However, the work involved dealing with a disturbed site that rendered sediment movement likely by any water flowing across the surface.

111 A great deal of work had been completed by mid July 2009. While that work did not encompass all that ultimately proved to be necessary, and some of that work required subsequent maintenance or rectification, it was work directed to arresting the flow of sediments into North Arm Cove.

112 In the circumstances, I do not find that the occurrence of discharges between 25 May and 21 June to evidence conduct on the part of the defendant that manifested "characteristic aberrant" conduct. Its actions in endeavouring to meet the Notice were focussed on the need to avoid further pollution, albeit that its actions were slower than might have been expected and less than perfectly executed, at least at this early stage.

113 I am not satisfied on the evidence that there was a discharge of sediment-laden waters to North Arm Cove on 18 November 2009. There were certainly observations made on that day by officers of DECC that sediment control works remained to be completed, including silt fences to be properly located and repaired, as well as evidence of some erosion on the face of the dam wall. The defendant accepts that work was still to be done or at least completed at that time. However, the observations made on that date did not establish to the requisite standard that there was a discharge which was occurring or had occurred on that day.

114 I should also record that the prosecutor sought to adduce evidence as to these discharges in order to negative a submission it anticipated might be made by the defendant to the effect that following the discharge on 19 May 2009 adequate measures had been taken to address any aftermath of that discharge. As it happened, the defendant did not make any such submission. Certainly, it relied upon the circumstance that from 25 May it commenced undertaking works to address the Clean-Up Notice but recognised that having regard to the magnitude of the works required and the time taken to complete those works some movement of sediment would inevitably occur. It seeks only to have recognised that by February or March 2010 those works had been completed. Indeed, the prosecutor now acknowledges that the defendant ultimately had "gone to considerable efforts to address what went wrong".

115 The observed discharge that occurred on 2 December 2009 is of a different category. Rain had fallen on both 30 November and 1 December. While substantial sedimentation control works had been undertaken by that time, the observations made on 2 December indicated they were still incomplete and in some cases sedimentation fences were in need of repair. While sediment-laden water was observed to discharge, that discharge was confined to no more "than a few metres out" from the foreshore. The observed turbidity was confined to about 3m or 4m "into the bay." I have earlier referred to the fact that the water being discharged on this day was entering at several points from the foreshore, extending over a foreshore length of between 80m and 100m.

116 The observations of discharge on that day were made by the defendant's consultant from PBA. It was as a consequence of those observations that further work was recommended and subsequently undertaken. Having completed those works, there is no subsequent complaint of discharges from the Property.

117 While the discharge on 2 December 2009 cannot be ignored, the circumstances of its occurrence do not, to my mind, lead to the conclusion that the defendant should be considered to have manifested continuing aberrant behaviour.

Conclusions on objective seriousness of the offence

118 The prosecutor submitted that the offence, while "significant and serious" could be determined as being "of moderate objective seriousness". Having regard to the factors that I have addressed, I consider that this categorisation slightly overstates the position. In my assessment, the objective seriousness of the offence is in the range of low to moderate.

Subjective factors

119 Within the limits set by the objective seriousness of the offence, the Court is required to take into account subjective factors, both favourable and unfavourable to the offender. Consideration of a number of subjective factors is required by s 21A(1) of the CSP Act.

120 There are no aggravating factors identified in s 21A(2) of the CSP Act that are applicable to the circumstances in which the present offence was committed. Those mitigating factors to be considered in favour of the defendant are:

(i) the fact that the injury was not substantial;

(ii) the offence was not part of a planned or organised criminal activity;

(iii) the lack of any prior conviction and the defendant's good character;

(iv) its expression of remorse and contrition;

(v) its early plea of guilty; and

(vi) its cooperation with authorities.

No substantial environmental harm

121 As I have earlier stated, my overall assessment of environmental harm was in the relatively low range. There was no evidence of actual harm but in reaching the conclusion that I did, I took into account the potential for harm. In the context of s 21A(3)(a) of the CSP Act, this entitled the defendant to a determination that the harm was not substantial and is thus a mitigating factor to be taken into account in determining an appropriate sentence.

Not part of a planned criminal activity

122 The events surrounding the commission of the offence in the present case amply demonstrate that the defendant did not plan to commit nor was it indifferent to the commission of an offence against s 120(1) of the POEO Act. Its actions in repairing or seeking to repair the damaged pipe were part of an overall response to a claim that the dam wall was at risk of collapse which, if it occurred, had the potential for significant environmental harm. Its actions, although incompetently undertaken, were directed to addressing that risk. The actions of the defendant are therefore the antithesis of a planned or deliberate breach of the POEO Act and as a consequence it is entitled to have that fact taken into account as a mitigating factor in accordance with s 21A(3)(b) of the CSP Act.

Good character

123 Good character, as a mitigating factor in determining an appropriate sentence, has both a negative and a positive aspect. The negative aspect is demonstrated by the absence of a record (or at least significant record) of prior convictions: s 21A(3)(e) of the CSP Act. There are no prior convictions recorded against the defendant and so it is entitled to the benefit of this fact.

124 The positive aspect of good character is identified separately in s 21A(3)(f) of the CSP Act as a mitigating factor. It seems to me that in order to engage these provisions, some evidence of community contribution or other good works of the defendant would be necessary. There was no evidence of that kind in the present case. Thus, it was the negative aspect of good character for which the defendant is entitled to consideration as a mitigating factor.

125 The prosecutor submitted under this head that although there were no prior convictions recorded against the defendant, the present offence should not be viewed as an uncharacteristic aberration. Reliance was placed upon the discharge of sediment-laden waters into North Arm Cove following commission of the offence on 19 May 2009. I have earlier addressed those discharges together with the prosecutor's submissions in that regard. For the reasons earlier stated, I consider that the discharge giving rise to the present offence was an uncharacteristic aberration.

Remorse and contrition

126 Section 21A(3)(i) of the CSP Act provides that remorse shown by an offender for an offence is a mitigating factor, but only if:

"(i)the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii)the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both) ... ".

127 In the context of that provision, there is evidence before me, which I accept, demonstrating the remorse of the defendant for the offence that it committed. That evidence, in essence, takes two forms.

128 First, contrition and remorse was expressed by Mr Lee as sole director of the defendant. Mr Lee expressed regret that the offence had occurred and offered an apology on behalf of the defendant. That evidence was expressed in an affidavit sworn by him. He attended Court and was cross-examined on his evidence. I did not understand that cross-examination to undermine the sincerity with which Mr Lee expressed remorse.

129 In his evidence, Mr Lee accepted that a serious error of judgment was made in directing Mr Chen to excavate the dam wall in the vicinity of the damaged pipe. He also acknowledged the importance of protecting the environment and the need to obtain specialist advice when carrying out works having the potential to occasion environmental harm. It was the failure to obtain expert advice in relation to repair to the dam wall that Mr Lee accepted gave rise to the commission of the offence. In his affidavit sworn on 11 April 2011, Mr Lee stated:

"The defendant has truly learnt its lesson from this event. The partial collapse of the Dam has caused me a huge amount of personal anguish and frustration and has imposed a significant financial burden on the defendant ...I am determined that nothing like this should happen again to the defendant."

130 These statements are consistent with a demonstration of remorse conformably with s 21A(3)(i) of the CSP Act (Environment Protection Authority v Waste Recycling and Processing Corporation at [203]-[214]). While remedial works were undertaken almost immediately, as I have earlier discussed, these were not completely effective until about February or March 2010. It would appear from the evidence that this delayed completion of works was, in part, due to difficulty encountered by the defendant with its then consultants in seeking to understand the extent of work required. Nonetheless, work was ultimately completed under the guidance of Mr McVey who the defendant continues to retain to advise on all environmental engineering matters pertaining to the Property. Mr McVey's evidence supports this position.

131 The prosecutor accepts that a considerable sum of money has been expended in addressing the site problems that gave rise to the offence. Details of expenditure have been provided, the total sum amounting to $454,694.52. This expenditure is not challenged by the prosecutor who, as I have indicated, accepts that all necessary remediation work has been satisfactorily completed. The unchallenged evidence of Mr McVey is that "the site is now in a permanently safe condition".

 

Early plea

132 The defendant entered a plea of guilty at the first available opportunity following institution of the prosecution against it. That fact must be considered in mitigation: ss 21A(3)(k) and 22 of the CSP Act. The defendant is entitled to the benefit of a discount of up to 25 per cent for that plea (R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [152]).

Assistance to authorities

133 The defendant has cooperated with the prosecutor in relation to investigation and prosecution of the present offence. It made admissions when requested to do so and Mr Lee cooperated in the recording of a record of interview with investigating officers.

134 There are two further matters that need to be noticed in relation to the defendant's cooperation. First, it instructed its solicitor to cooperate with the prosecutor in settling and agreeing upon the Statement of Agreed Facts and accompanying documents that were tendered in the course of the proceedings. That cooperation continued through the course of the hearing, resulting in supplementary statements of agreed facts being tendered. This cooperation facilitated the presentation of the case to the Court. Second, the defendant has agreed to pay the prosecutor's legal costs of $120,000 within 28 days and also to pay its investigation costs in the sum of $1,464.

135 These are matters to be taken into account in mitigation of the sentence to be imposed upon the defendant: ss 21A(30(m) and 23 of the CSP Act.

The appropriate sentence

136 The imposition of a sentence serves a number of purposes. As the provisions of s 3A of the CSP Act indicate, these purposes include retribution and denunciation, as well as deterrence, both specific and general.

General deterrence

137 The need for general deterrence when fixing an appropriate penalty is an important consideration in the sentencing process. That penalty must be sufficient to deter others who, by oversight or inadequacy of process systems, run the risk of committing an offence against the POEO Act in the hope that should any oversight or inadequacy be exposed, only nominal penalties will be imposed.

138 An object of the POEO Act is to prevent pollution. A means by which this object may more readily be achieved is by the imposition of penalties for breaches that are sufficiently substantial to encourage industry to adopt preventative measures when undertaking works that have potential to occasion environmental harm (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359-360).

139 The circumstances giving rise to the offence in the present case are far removed from those in respect of which it might be said that there is nothing more that could have been done to avoid the commission of the offence. The present offence occurred because the defendant failed to take measures that, with appropriate and competent advice, could and would likely to have been taken so as to avoid the commission of the offence. The necessity for those engaged in activities involved in road and dam construction to ensure that water pollution does not occur as a consequence of those activities is a necessity that is more likely to be observed if a significant penalty is imposed for failure to take appropriate preventative measures. For this reason, the imposition of the penalty in this case must properly include a component for general deterrence.

Specific deterrence

140 The evidence given by Mr Lee to which I have earlier referred when addressing the defendant's contrition and remorse is evidence relevant to be considered in the present context. Given my determination that the conduct was an uncharacteristic aberration, and that considerable expenditure was incurred in bringing the Property to a state where it is accepted that it is now stable, I do not consider that the penalty need reflect any significant component for specific deterrence.

Parity

141 The principle of even-handedness or parity in sentencing requires consideration to be given to any sentencing pattern for like offences. This principle must always be applied with circumspection, given that both the objective circumstances of a given offence and the relevant subjective circumstances to be applied in imposing a sentence or penalty will almost always vary from case to case. These variations must be considered when endeavouring to apply the determination of one case or series of cases to the case under consideration. Both parties accept that, for the reasons stated, caution is necessary in seeking to apply penalties imposed in other cases.

142 Sentencing statistics maintained by the Judicial Commission of New South Wales provide assistance when endeavouring to discern a sentencing pattern. Of the 12 cases on the database at the time of hearing, where both a fine and additional orders were imposed against a corporation for a contravention of s 120(1) of the POEO Act, there are two cases of particular relevance. They are the interrelated proceedings in Environment Protection Authority v Snowy Hydro Ltd and Environment Protection Authority v Fulton Hogan Pty Ltd [2008] NSWLEC 268; (2008) 163 LGERA 345. Cases involving water pollution from discharge of sediments prior to those two cases were decided before the maximum penalty for a breach of s 120(1) by a corporation was increased from $250,000 to $1M.

143 In Environment Protection Authority v Snowy Hydro Ltd, Biscoe J was required to sentence the defendant corporation, following a plea of guilty, for an offence against s 120(1) of the POEO Act. In a series of related events occurring over four days, somewhere between 4 and 11 tonnes of sediment were discharged into the Snowy River consequent upon works being carried out by the defendant's contractor, Fulton Hogan Pty Ltd. The sediment comprised soil, earth, clay or similar inorganic matter. His Honour accepted that environmental harm was minor and short term while the offence was described by him as being "of moderate objective seriousness".

144 After applying discounts for mitigating factors, a fine of $100,000 was imposed and, in addition, the defendant ordered to pay legal costs of $84,289 together with investigation costs of $1897.50. In the related prosecution against Fulton Hogan Pty Ltd for the same offence, and identical fine and costs order was imposed and made.

145 In Snowy Hydro, the subjective circumstances that attracted the discount included the absence of prior convictions, the Company's cooperation with the prosecutor and the fact that it had devoted considerable resources to mitigating the effect of the pollution. It had identified the cause of the offence and subsequently implemented new programs and procedures to avoid a reoccurrence.

146 While Snowy Hydro provides some assistance, it cannot be directly applied in the present circumstances. I have determined that the objective seriousness of the offence in the present case is at a lower level than that determined in Snowy Hydro. Moreover, the facts in the present case do not enable me to determine that the quantum of polluted discharge was of a similar order to that found in Snowy Hydro.

Conclusion on penalty

147 The determination of an appropriate penalty ultimately requires an instinctive synthesis of all relevant factors (Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357). Synthesising these relevant factors, I consider that an appropriate fine in the present case, before discount, is $110,000. That sum should be discounted by 30 per cent for subjective or mitigating factors, including the early plea of guilty, resulting in a penalty of $77,000. In determining this penalty, I take into account the quantum of legal and investigation costs which the defendant has agreed to pay (cf Environment Protection Authority v Barnes [2006] NSWCCA 246).

Type of penalty to be imposed

148 Both the prosecutor and the defendant submitted that this is a case in which it is appropriate for the Court to make an order under s 250(1)(e) of the POEO Act. That provision enables the Court to order an offender:

" ... to pay a specified amount to ... a specified organisation, for the purposes of a specified project for the restoration or enhancement of the environment or for general environmental purposes".

An order for such a payment may be made in lieu of the imposition of a fine.

149 Evidence has been tendered of two environmental programs that engage the provisions of s 250(1)(e). The first is a program to be undertaken by Great Lakes Council known as the Kore Kore Creek Bushland Reserve Project. Kore Kore Creek flows into Port Stephens at a point which is about 6.75km from the foreshore location of the Property. Relevantly, the project involves the stabilisation and remediation of tracks within the Reserve that presently are occasioning sedimentation discharge to the Creek and into the waters of the Marine Park. Appropriately qualified experts are to be retained to oversee and direct this work. The estimated cost of the project is $40,000.

150 The second project is one being undertaken by the Marine Parks Authority, responsible for the Port Stephens - Great Lakes Marine Park. The Authority is established under the Marine Parks Act 1997. The project involves the replacement or subsidising the replacement of existing "dump and chain" swing moorings used by vessels moored in the Marine Park. These old style moorings occasion damage to seagrass beds and sponge gardens. This damage has, in turn, an adverse impact upon fish stocks and marine biodiversity.

151 The old style swing moorings are to be replaced by a newly designed and tested fixed mooring which has no or minimal impact upon seagrass beds and sponge gardens. The new moorings, described as "seagrass friendly moorings", have already been installed in some areas of Port Stephens with considerable success, alleviating harm to the marine environment. The new moorings were designed by a contractor operating in Port Stephens who has been engaged by the Authority to carry out their installation. The total cost of stage 1 of the project is $29,900 and stage 2 is to be undertaken at a cost of $230,000.

152 Conformably with s 250(1)(c) of the POEO Act, I am satisfied that it is appropriate to direct the penalty that would otherwise be imposed by a fine, be apportioned between these two projects.

153 The prosecutor has sought, and the defendant has agreed, that there should be a publication order made under the provisions of s 250(1)(a) of the POEO Act. This order requires that the publication take two forms. The first is a notice to be published in newspapers identified by the prosecutor and the second requires the defendant to record the commission of the present offence when public reference is made by it to its contribution to the two projects that I have identified. I accept that an order for both forms of publication are appropriate in the present case.

Orders

154 The orders that I make are therefore as follows:

(1) The defendant is convicted of the offence against s 120(1) of the Protection of the Environment Operations Act 1997, as charged.

(2) Pursuant to s 250(1)(e) of the Protection of the Environment Operations Act, within 28 days of these orders the defendant must pay:

(i) Great Lakes Council the sum of $40,000 to be applied in full to the Kore Kore Creek Bushland Reserve Project for stabilisation and remediation of tracks within the Kore Kore Creek Reserve;

(ii) the Marine Parks Authority the sum of $37,000 for the Project in the Port Stephens - Great Lakes Marine Park involving the installation of "seagrass friendly moorings" in place of "dump and chain" swing moorings.

(3) Pursuant to s 250(1)(a) of the Protection of the Environment Operations Act the defendant must take the following action:

  (i)     within 14 days of the date of these orders, cause a notice in the form of Annexure "A" to be placed
          within the first 12 pages in the early general news section of the Sydney Morning Herald Newspaper
          at a minimum size of 10cm x 20cm;  

  (ii)    within 14 days of the date of these orders, cause a notice in the form of Annexure "A" to be placed
          within the first 12 pages of the Newcastle Herald Newspaper at a minimum size of a quarter page of
          that newspaper.

 

(4) The defendant must, within 35 days from the date of these orders, provide evidence to the prosecutor that the payments required by Order 2 have been made.

(5) The defendant must, within 21 days from the date of these orders, provide evidence to the prosecutor that the notices required by Order 3 have been published.

(6) All future public references by the defendant to its payments made to Great Lakes Council and the Marine Parks Authority respectively pursuant to Order 2 must be accompanied by the following passage:

"The payment by Tea Garden Farms Pty Ltd to Great Lakes Council for the Kore Kore Creek Bushland Reserve Project and to the Marine Parks Authority for the replacement of swinging moorings in the Port Stephens - Great Lakes Marine Park by seagrass friendly moorings is part of a penalty imposed on Tea Garden Farms Pty Ltd by the Land and Environment Court after it was convicted of polluting waters, that is, North Arm Cove, Port Stephens, an offence against s 120(1) of the Protection of the Environment Operations Act 1997."

(7) The defendant must within 28 days from the date of this order, pay the prosecutor's costs, as agreed, in the sum of $120,000.

(8) Pursuant to s 248(1) of the Protection of the Environment Operations Act 1997, the defendant must, within 28 days from the date of these orders, pay the prosecutor's investigation costs in the sum of $1,464.

(9) Exhibits may be returned.

**********

 

Annexure “A”

 

TEA GARDEN FARMS PTY LIMITED

 Convicted of water pollution offence

 

On 30 April 2012, the Land and Environment Court found Tea Garden Farms Pty Ltd (“the Company”), the owner of land at Bundabah, New South Wales, guilty of one charge of water pollution.

 

The Environment Protection Authority prosecuted the Company for polluting the waters of North Arm Cove, Port Stephens, with soil, earth, mud, stones, sand, clay and similar inorganic matter on or about 19 May 2009.

 

The waters of North Arm Cove are part of the Port Stephens – Great Lakes Marine Park.

 

The pollution incident followed the collapse of a dam wall on the Company’s property, which resulted in an unquantified volume of sediment-laden water escaping into North Arm Cove.

 

The Company pleaded guilty to the offence. 

 

The Court found that a section of the dam wall collapsed when, without the benefit of any expert advice or assistance, an employee of the defendant carried out excavations at the base of the dam wall in an endeavour to repair a defective drainage pipe.  Following the collapse of a section of the dam wall and discharge of sediment-laden waters into North Arm Cove, the Court also found that potential environmental harm was caused to the waters of the Marine Park. 

 

In lieu of the imposition of a fine, the Company was ordered to fund two environmental restoration and enhancement projects in the total sum of $77,000.  The Company was also ordered to pay the legal costs of the Environment Protection Authority in the sum of  $110,000 and investigation costs of $1464.  Further, the Company was ordered, at its expense, to publish this notice.

 

Amendments

15 May 2012 - Section no of POEO Act changed from s 242 to s 241
Amended paragraphs: Heading to para 89 and para 95

Decision last updated: 15 May 2012