Posted on October 26, 2012 by Frances Tse

Penalty for Council’s water pollution offence

In Environmental Protection Authority v Queanbeyan City Council (No. 3) [2012] NSWLEC 220, the Land and Environment Court considered what was the appropriate sentence to impose in respect of an offence by  the Council of polluting waters under s120 of the Protection of Environment Operations Act 1997 (POEO Act).

Of particular interest to councils is the the fact that whilst the water pollution in this case was the result of a telemetry system malfunction, the Court nevertheless imposed a monetary penalty of $80,000 (discounted from $100,000) and required the Council to publicly notify details of the offence and sentence.

This was to act as a deterrent, to publicly denounce the Council and to convey the message that councils who provide services to the community must  carry them out so as to avoid harm to the environment.

The case also provides some insight into the factors that the Court takes into account in imposing a sentence.

Facts

Between 10.45pm on 4 November 2007 and 6.45am on 5 November 2007, an estimated 915,336 to 1,112,830 litres of sewage overflowed into the Queanbeyan River and downstream to the Molonglo River in the ACT.

The overflow was  due to a sewage pump failure at the Council’s Morisset Street station and the failure of a telemetry system used at that station which should have activated and alerted the relevant Council officers to the pump failure.

 

There were several instances of the sewage pump failing prior to the subject offence.

The Council  pleaded guilty to the offence.

Sentencing Considerations

The Court, in determining an appropriate sentence, considered the objective gravity or seriousness of the offence and any mitigating and aggravating factors personal to the Council.

Objective gravity

The things that factored into the objective gravity of the offence were:

• the nature of the offence – the Court considered that polluting waters was wholly incompatible with and directly undermines the objects of the POEO Act,
• the maximum penalty for the offence – being $1,000,000,
• the harm caused to the environment (which includes not only the actual harm but also the potential or risk of harm) – the Court considered that whilst the expert evidence found that the actual harm caused was insignificant (notwithstanding the high volume of sewage), there was nevertheless some potential for harm to public health and the environment, given the amount of sewage and the fact that the public used the rivers for fishing and recreational purposes,
• the Council’s state of mind in committing the offence – whilst there was some human error involved due to lack of monitoring of the pump, and there were additional practical measures that could have been taken to prevent or mitigate the harm, the Court was not persuaded that the Council polluted waters without regard for public safety (which would have increased its objective seriousness),
• the Council’s reasons for committing the offence – whilst the court accepted that the failure to monitor the sewer pump station did not mean the Council ‘condoned’ the offence and the offence was not committed for financial gain (which would have increased the objective seriousness), the Court stressed that there is an obligation on councils who provide services to the community to carry them out so as to avoid harm to the environment,
• the foreseeability of the risk of harm to the environment – due to the fact that there had been recent failures of the sewage pump  the Court found that the Council could readily have foreseen the harm caused or likely to be caused to the environment
• the Council’s control over the causes of harm to the environment and the practical measures available to avoid the harm – the Court found that as the Council was responsible for the running, monitoring and maintenance of the station, it had complete control over the causes of harm and there were practical measures available to the Council to prevent, control, abate or mitigate the harm.

Having regard to the above, the Court found that the offence committed was one of moderate objective gravity.

Mitigating factors

The things that factored into the subjective circumstances of the Council were:

• any prior criminal record – in this case the Council had one prior conviction in 1996 for discharging raw sewage into the Queanbeyan River, which the Court found should be given some weight,
• any plea of guilty – whilst there was delay in the entering of the guilty plea, the Court found that the Council was still entitled to a 15% discount for pleading guilty,
• any contrition and remorse – the Court considered that the Council’s post offence conduct, including voluntary reporting of the commission of the offence, taking steps to improve staff support, improving the monitoring system, upgrading the sewage treatment plant and appearance of council officers in court to provide evidence demonstrated genuine remorse,
• good character – the Court found that with the exception of the prior conviction, the Council had demonstrated its good character,
• any assistance to authorities – the Court found that whilst the Council did provide some assistance to the EPA in its investigation of the offence, it was only to a limited degree because the Council compromised the reliability of any information provided by it by not conducting a thorough investigation immediately after the sewage overflow

Sentence

The Court imposed a monetary penalty of $100,000, discounted by 20% to $80,000 taking into account:

• the objective and subjective circumstances
• the deterrence function of the sentence to other councils operating sewerage systems to ensure that they carry out all activities with the aim of avoiding pollution
• the public denunciation function of the sentence to ensure that the Council is held accountable and adequately punished
• the fact that the Council had agreed to pay the EPA’s legal costs of $343,000 and the investigation costs and expenses in the sum of $1,189

The Council was also ordered to place a notice in the newspaper of details of the offence, the findings of the Court and the penalty imposed by the court.

Extraterritoriality

An argument was raised by the Council that the POEO Act did not operate extraterritorially and therefore the Court was not able to take into account the harm to the environment beyond NSW, being the harm to the Molonglo River in the ACT and the waterskiing area at Lake Burley Griffin.

The Court acknowledged that whilst s120 of the POEO Act is plainly directed to the pollution of NSW waters, there is nothing in the POEO Act which precluded the Court from examining the totality of the harm caused by the commission of the offence that has occured in NSW, even if part of  the harm occured in another jurisdiction. Pepper J stated that ‘The protection of Australia’s unique environment ought not be thwarted by artificially constructed legal boundaries; polluting events do not cease to be polluting merely because they traverse jurisdictional lines.’

Nevertheless, it was noted that if the case was that the sewage was only discharged into ACT waters then it was likely that no offence would have been committed in NSW because no pollution of NSW waters would have occurred.