MONOGRAPH 40 volume 1

92 Transparent and consistent sentencing in the Land and Environment Court of NSW: orders for costs as an aspect of punishment Judicial Commission of NSW 2.4.1 Pollute waters The POEO Act regulates air, water and noise pollution in NSW. The legal definition of “water pollution” is very broad. 527 First, “water” is defined under the POEO Act as the whole or any part of: (a) any river, stream, lake, lagoon, swamp, wetlands, unconfined surface water, natural or artificial watercourse, dam or tidal waters (including the sea), or (b) any water stored in artificial works, any water in water mains, water pipes or water channels, or any underground or artesian water. Secondly, “water pollution” or “pollution of waters”, in the main, involves (but is not necessarily limited to): the introduction of any matter — solid, liquid or gas — into waters which changes the physical, chemical or biological condition of the water. 528 The definition of water pollution “includes the placing of any matter in a position where pollution enters or is likely to enter any waters”. 529 This last statement reaffirms the “potential” harm principle of the POEO Act . Thirdly, the act of polluting waters may be lawful but only where a pollution licence authorises such pollution and the licence holder has complied with the conditions of the pollution licence. 530 It is an offence to pollute waters without a pollution licence or to breach the conditions of a pollution licence. 531 There are two sections of the POEO Act that explicitly deal with pollute waters offences: 532 • Tier 1 pollute waters offences: s 116 — “Leaks, spillages and other escapes” • Tier 2 pollute waters offences: s 120 — “Prohibition of pollution of waters”. In the case of a Tier 1 pollute waters offence, the onus is on proving that the corporation or individual charged wilfully or negligently caused any substance to leak, spill or otherwise escape (whether or not from a container) in a manner that harmed or was likely to harm the environment. In the case of a Tier 2 pollute waters offence, it is an “offence of strict liability” and is described as “a result offence”. 533 Table 12 identifies the different pieces of legislation applicable to pollute waters offences across the study period. This Table also shows that pollute waters offences have attracted higher and higher maximum penalties over time inline with “community expectation” as to the “appropriate” punishment for polluters of waters. As Craig J noted in Minister for Planning v Moolarben Coal Mines Pty Ltd : [The] maximum penalty is of great relevance in determining the objective gravity of the offence. As observed by Kirby P (Campbell and James JJ agreeing) in Camilleri’s Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683 at 698: “the maximum penalty available for an offence reflects the ‘public expression’ by parliament of the seriousness of the offence (citation omitted)”. An increase in the statutory maximum sentence is a significant matter to take into account when exercising the sentencing discretion as it reflects a change in the community expectation as to the appropriate sentence ( Minister for Planning v Coalpac Pty Ltd [2008] NSWLEC 271 at [42]). 534 527 Environmental Defenders Office NSW, above n 286, p 90. 528 See the POEO Act , Dictionary, “‘water pollution’ or ‘pollution of waters’” [(a) to (e)]. Schedule 3 of the Protection of the Environment (General) Regulation 1998 lists the substances and other matters that must not be placed in or near any waters. 529 Some cases of water pollution involve a discharge into a dry channel or ephemeral stream, which may or may not find its way into an actual waterway: see, for example, EPA v KBL Mining Ltd [2014] NSWLEC 178 and EPA v Moolarben Coal Operations Pty Ltd (No 2) [2012] NSWLEC 80. 530 The EPA is empowered to issue pollution licences (“environmental protection licences”) to authorise certain polluting activities (“scheduled activities”) and the conditions of such activities: POEO Act , Ch 3. 531 POEO Act , s 122. 532 Before the study period, s 16 of the CW Act also dealt with water pollution offences; however, this Act was repealed on 1 July 1999. 533 EPA v Pipeline Drillers Group Pty Ltd [2012] NSWLEC 18 per Craig J at [44]. 534 [2010] NSWLEC 147 at [49], [50].