Environmental Protection Agency v John Dee Warwick P/L [2010] QMC 21

MAGISTRATES COURTS OF QUEENSLAND CITATION: Environmental Protection Agency v John Dee Warwick P/L [2010] QMC 21 PARTIES: ENVIRONMENTAL PROTECTION AGENCY (prosecution) v JOHN DEE WARWICK PTY LTD (defendant) FILE NO/S: MAG13794/09(0) DIVISION: Magistrates Courts PROCEEDING: Complaint – No case to answer submission ORIGINATING COURT: Magistrates Court at Warwick DELIVERED ON: 18 March 2010 DELIVERED AT: Warwick HEARING DATE: 18 March 2010 MAGISTRATE: Thacker AC ORDER: Defendant must answer the prosecution case made against it. CATCHWORDS: ENVIRONMENT LAW – WATER POLLUTION – contravene a development condition of a development approval – whether contaminants washed from holding pond during flood into a river are directly released Environmental Protection Act 1994, s 435(2) COUNSEL: Nicholson for prosecution MacSporran for defendant SOLICITORS: Prosecution on own behalf Mallesons Stephen Jacques for defendant The Complaint -- 1 of 7 -- 2 [1] The complaint is that on or about 5 January 2008 at Warwick, John Dee Warwick Pty Ltd (“the defendant”) did, in contravention of section 435(2) of the Environmental Protection Act 1994 (“the Act”), contravene a development condition of a development approval. [2] The Prosecution presented their case to the Court. At the conclusion of the Prosecution case the Defendant made a submission there is no case to answer. The Law [3] Section 435(2) of the Act provides: A person must not contravene a development condition of a development approval. Maximum penalty – 1665 penalty units. [4] In the dictionary to the Act “development condition” is defined as follows: Development condition, of a development approval, means a condition of the approval imposed by, or imposed because of a requirement of, the administering authority as assessment manager or concurrence agency for the application for the approval. [5] It is not in contention that the “development condition of the development approval” is found in the Integrated Authority No. WT0467 issued to the defendant and dated 10 September 2001 (“the Integrated Authority”), which states as follows: Schedule 2C – Water (NS2) Contaminants must not be directly released from the licensed place to any waters or the bed and banks of any waters except as permitted under the stormwater management schedule, or to a sewer as permitted or otherwise agreed from time to time by the relevant Local Government. The Facts [6] The facts upon which the Complaint is made are not in dispute. Briefly, the defendant operates an abattoir very close to the banks of the Condamine River at Warwick and has done so since 1913. During 4 and 5 January 2008 the Condamine River flooded. The flood waters inundated the relevant effluent treatment surge pond removing its contents from the site and depositing it in various locations downstream of the site, including the Condamine River. The pond contents are -- 2 of 7 -- 3 considered to be “contaminants” for the purposes of the Schedule 2C development condition because it included waste water, cleaning chemicals and by-products of animal slaughtering including blood and fat. The issue [7] The issue concerns the meaning of “directly released” in the Integrated Authority at Schedule 2C – Water. The defendant submits that it has not “directly released” waters into the Condamine River within the meaning of Schedule 2C – Water. [8] The defendant submits in essence that the full and proper meaning of the words “directly released” can only be ascertained by reference to materials extrinsic to the Integrated Authority itself. [9] Case law shows that the Courts have developed a particular approach to prosecutions which rely on a determination of the proper construction of conditions of a development approval: Hawkins and Izzard v Permarig Pty Ltd & Brisbane City Council (No 1) [2001] QPELR 414. [10] As a general rule no reference to materials extrinsic to the development condition of a development approval would be undertaken unless the extrinsic material is either actually incorporated in the approval – not the situation here – or are incorporated by reference into it. The defendant would say these words have by necessary implication been incorporated because there are a number of ways in which they can be interpreted. [11] There is detailed guidance provided in Hawkins Case to accommodate the fact that development approvals are written in different circumstances to Acts of Parliament and can lack clarity or certainty. Such shortcomings should not become an unfair burden on license holders. Rather, the local authority should take the consequences of any failure to specify accurately or in detail what is approved as well as any conditions of that approval. Brabazon QC DCJ at page 416 explains further: There is some room for extrinsic evidence, as the cases show. Expert evidence, in accordance with the usual principles, might be called to explain a technical term and also (in my opinion) the possible implications of different constructions of a condition. That would be particularly so where the purpose of the approval is evident. If one construction would advance the proposal while -- 3 of 7 -- 4 another would tend to frustrate it, then that may be an important factor in construing the true meaning of the approval. Also, evidence may be given to explain the nature of the site so that the impact and meaning of the condition may be understood. Evidence as to the meaning of the marks on plans or, perhaps, the absence of particular marks can also be the subject of extrinsic evidence. The extrinsic evidence the defendant raises for consideration [12] Firstly, the defendant submits there has been no “direct release” of contaminated waters because the proper description of the activity which caused the surge water to flow into the Condamine River is that it was an “indirect release” and as such is not something prohibited by the Integrated Authority. [13] While I notice there is evidence that all storm management should be understood as an “indirect release” activity ( by reference to the Environmental Protection Regulation 2008 at sections 63 and 64 use of the words as an example) and while I notice that the EPA, in its own document, groups the surge dam with stormwater management (at SAF Tab 11 at page 4 paragraph 3.2) it is not done in such a way that it is imperative thereafter to view the surge dam as part of the storm water management. [14] I cannot accept, because it is a flawed logic, to say that an Act of God intervenes to change the activity involving “direct release” from the defendant’s premises to the river into an “indirect release”. [15] Secondly, as I understand Mr McSporran, he submits that the meaning of the words “directly released” must be understood in a particular way, namely that the full and proper meaning of the phrase “direct release” is only available by reference to extrinsic material comprising documents produced in the course of the application for Integrated Authority and its determination, namely – 1. The Defendant’s application dated 5 March 1997 (SAF Tab 10) (“the Application”); and 2. The Recommendation of the Principal Environmental Officer, Southwest region dated 19 – 20 June 1997 (SAF Tab 11) (“the Recommendation”); and 3. The Integrated Authority dated 10 September 2001 containing NS2 (SAF 12) (“the Integrated Authority”) -- 4 of 7 -- 5 (“these three documents”). [16] The defendant’s position, as I understand it, is that the phrase is otherwise ambiguous. The ambiguity is said to arise because while the Application flags the problem of occasional flooding causing the surge dam contents to flow into the Condamine River and the Recommendation acknowledges that occasionally this will occur, there is nothing addressing the issue in Schedule 2C – Water. [17] It is revealed by these three documents that the Application was made in the following circumstances:- The Application was being made for an environmental authority or license to continue the operation of an abattoir and other facilities at Warwick as the abattoir had in fact been operating at the same location since 1913 and from time to time granted appropriate authority to operate; and The Applicant had never had a formal Environmental Management Plan prior to the Application; and Both the Applicant and the Environmental Protection Agency to whom the Application was made, knew that because of the position of the surge dam in times of some flooding of the Condamine River there had been and would be occasions when the surge dam would be inundated and contaminated water would flow from the surge dam to the river: see SAF Tab10 at pages 10 and 12, and SAF Tab 11 at page 4 paragraph 3.2; [18] These three documents therefore, with their acknowledgement that, on the occasion of some floods, the surge dam would be inundated causing contaminated water to be directly released to the Condamine River, essentially provide a qualification to the words “directly released” in the NS2 condition. Accordingly, the only argument available to the Defendant is that the words “directly released” are qualified with an exception which is obtained from reading together these three documents. [19] Opposed to this expanded comprehension of the words “directly released”, Mr Nicholson on behalf of the Complainant Authority submits simply that one needs look no further than Schedule 2C – Water and a good English Dictionary. He -- 5 of 7 -- 6 contends it is sufficient for the Complaint to be made out that there is a “blanket” condition on the license, namely “Contaminants must not be directly released…”. [20] I notice that “direct” as defined by the Macquarie Dictionary means “proceeding in a straight line or by the shortest course; straight; undeviating; not oblique..” and the word “release” means “to free from confinement; to free from anything that restrains, fastens.” In other words, waters moving from the surge dam into the Condamine River upon the surge dam becoming inundated by the flooding river constitutes contaminated water directly released from the surge dam. Proper construction [21] A renewal of license to operate the abattoir had been granted each year from 1978 until 1994 when the regulatory regime changed by the passing of the Act. The issue of the Integrated Authority under the new regime was on the basis that the abattoir would continue operation which of course included that there was a risk that the surge dam would be inundated with flood waters occasionally and the EPA was aware of this fact because it was flagged by the defendant in its Application and it was discussed in the Recommendation which recommended in favour of a grant of the Integrated Authority by the EPA . [22] But the purpose of seeking an Integrated Authority was to comply with a new statutory regime which had a different purpose or more comprehensive purpose than the regulatory regime used to manage activities such as the abattoir previously. The purpose of the Act is outlined in section 3: The object of this Act is to protect Queensland’s environment while allowing for development that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends (ecologically sustainable development). [23] It is an Act intended to change the orientation of environment usage in Queensland. For some, including abattoirs, this must mean a careful re-consideration of their operations. It follows that the defendant could not assume that the Application was something similar in style and purpose to their various previous licenses to operate. [24] Just because the words “direct release” are contained in a document produced by the Environmental Protection Agency does not mean we should distrust their ordinary -- 6 of 7 -- 7 meaning. In ordinary meaning if flood waters rise above the level of a (surge) dam this will enable a direct release of water from the dam into the water outside of the dam. There is nothing technical about this. There is no or no sufficient ambiguity in the wording of Schedule 2C – Water to require any search for assistance for interpretation of them and especially not in the manner contended for by the Defendant. [25] It cannot be, without clear words in the legislation expressing such intention, that licenses and authorities granted under the new environmental protection regime are able to be diluted with qualifications such as acceptable risk, in order to enable environmentally damaging activities to continue. There is no such qualification in the Act. Furthermore, Schedule 2C –Water enables the Defendant to apply to accommodate the problem of occasional flooding of the surge dam if it was to continue as a source of direct release in times of flood: see the words at the end “…or otherwise agreed from time to time by the relevant Local Government”. If the Defendant upon receiving the Integrated Authority considered it must breach the Integrated Authority during a flood it was for the Defendant to obtain an agreement from the Complainant that direct release during times of flood was permissible. [26] Consequently I must reject the submission that comprehension of “directly released” requires comprehension of the Application, the Recommendation as well as the Integrated Authority. To do so, confuses process with authority. Conclusion [27] The result of this deliberation is that I find the Defendant must answer the prosecution case made against it. -- 7 of 7 --