Crowther v State of Queensland [2009] QPEC 31

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Crowther v State of Queensland [2009] QPEC 31 PARTIES: CLAIRE CROWTHER Applicant v THE STATE OF QUEENSLAND Respondent FILE NO/S: 1556 of 2008 DIVISION: Original jurisdiction PROCEEDING: Application for enforcement orders ORIGINATING COURT: Planning & Environment Court Queensland DELIVERED ON: 6 May 2009 DELIVERED AT: Brisbane HEARING DATE: 13 March 2009; 27 April 2009 JUDGE: Alan Wilson SC DCJ ORDER: 1 That clause 2(a) of the order made by this court on 3 December 2008 be amended by inserting the words, ‘… or by decommissioning the air compressors in H Block’ 2 That the applications filed by the applicant on 3 March and 21 April 2009 be dismissed 3 That the respondent pay the applicant’s costs of and incidental to the application filed 3 March 2009 limited to the applicant’s filing fees for that application and the affidavits filed by her in respect of it CATCHWORDS: ENVIRONMENT AND PLANNING – POLLUTION – NOISE POLLUTION AND CONTROL – where compliance with court order to remedy environmental nuisance is sought – whether provisions of a court order associated with noise were breached Environmental Protection Act 1994 s 440 Environmental Protection Regulation 1998 s 6Z Cases considered: Crowther v State of Queensland [2003] QPELR 346 -- 1 of 5 -- 2 COUNSEL: Claire Crowther in person G B Wilshier, solicitor, for the respondent SOLICITORS: Crown Law for respondent [1] There has been long running litigation between Ms Crowther and the State as the operator of Yeronga TAFE College, which began with Crowther v State of Queensland [2003] QPELR 346. The present application has its genesis in proceedings Ms Crowther brought last year in which she satisfied his Honour Judge Robin QC that noise emanating from activity and operations at the college constituted breaches of s 440 of the Environmental Protection Act 1994 and s 6Z of the Environmental Protection Regulation 1998. [2] The first involved a finding that noises from the college constituted an environmental nuisance; the second, a specific breach of a regulation limiting the hours upon which air-conditioning equipment might be used if it exuded noise above a certain level. [3] The order made by his Honour was not perfected and filed until 5 January 2009, more than a month after it was pronounced on 3 December 2008. It contains, first, a declaration that the court is satisfied offences had been committed by noise emissions contrary to s 440, and s 6Z. Paragraph (2) then sets out specific orders that the TAFE College carry out the following works: (a) Reduce noise emissions emanating from an air-compressor in Block H by the installation of acoustic absorbative treatments by 28 February 2009; (b) Refasten the loose louvre blades exterior to the mezzanine exhaust fans in Block G to prevent rattle by 23 December 2008; and (c) Limit the operating time to the toilet exhaust fan in Block A to between the hours of 7am and 10pm Monday to Friday and 8am to 4pm on Saturday, by 23 December 2008 and provide the court and the appellant by 28 February 2009 with a report from the acoustic expert, Mr King, or another suitably qualified acoustic expert as to the progress achieved in carrying out those works. [4] Order 3 prohibited the college from using air-conditioning equipment, including compressors, during certain specified times if they emitted sounds above a specified level. Order 4 required the respondent to keep written records about the operation of all this equipment outside certain specified times. The final order granted liberty to apply. [5] Neither the court nor Ms Crowther were provided with a report from Mr King by 28 February 2009. Mr Wilshier who appeared for the State said, and I accept, that the oversight was his – he thought the order required the works to be completed by that date, with the report to follow1 . 1 Transcript, p 1-33.1-5. -- 2 of 5 -- 3 [6] On 3 March 2009 Ms Crowther filed a further application in a pending proceeding seeking compliance with the orders of 3 December 2008, and costs. That application was heard on 13 March 2003. Ms Crowther cross-examined the acoustics expert Mr King, and each party made submissions. I reserved my decision. Then, on 21 April 2009, Ms Crowther filed a further application in a pending proceeding seeking an order for ‘verbatim (sic) compliance to orders of 3 December 2008 of Planning & Environment Court’. [7] This application was supported by assertions that, since the hearing on 13 March, there had been occasions on various days when noise had been detected, and observations of the stacks at Block H made, suggesting that a compressor was operating. On 21 April 2009 Ms Crowther filed an affidavit to the effect that she had heard noises emanating from Block H on 26, 30 & 31 March, and 2, 7, 8, 9, 14, 15 & 16 April 2009, and observed signs that the stacks were in fact operational. She said that the stack lids ‘…evidents (sic) the usage of a compressor as necessary to effect each booth’s activity. Each booth is connected to the extraction stacks’. [8] At the hearing of Ms Crowther’s further application on 27 April 2009 she filed, by leave, a further affidavit from a neighbour, Mr Rebetzke, to the effect that he had made similar observations on 12 & 31 March 2009. [9] At the hearing on 13 March a further report was produced from Mr King2 . He had conducted an additional inspection on 6 March, with specific reference to the matters set out in clause 2 of the order of 3 December 2009 and observed: (a) that the two air compressors in Block H had been decommissioned with all permanent electrical wiring to each compressor physically disconnected from the mains supply. Each compressor had also been fitted with ‘do not operate’ tags. He was confident they had been permanently disconnected and there was, therefore, now no need for the acoustic installation works referred to in clause (a) of the order; (b) the louvre blades in the Block G exhaust fan plant room had been rectified with timber wedges and adhesive with the result, in his opinion, that the matter had been ‘appropriately addressed’ and the ‘noise issue removed’; and (c) His inspection of the electrical switch panel on Level 3 of Block A revealed a timer had been installed for the roof level exhaust fan which he tested and satisfied himself that the set operating times were compliant with the court order. [10] At the hearing on 13 March the Crown was given leave to file a cross-application for an order that paragraph 2(a) of the order of 3 December be amended by inserting the words ‘…or by decommissioning the air-compressors in H Block’. [11] Ms Crowther delivered additional written submissions at the hearing on 27 April. They are, intending no disrespect, a little difficult to follow but appear to involve the following assertions: 2 Exhibit 1. -- 3 of 5 -- 4 (a) that there has been non-compliance with paragraph 2 of the Order of 3 December 2008; (b) that unacceptable noise continues to emanate from Block H; (c) that this noise may be related to ‘extraction’ and the stacks; and, (d) that there should be some ‘refinement’ of the existing order. [12] There has been, it is true, non-compliance in strict terms with the order of 3 December 2008 but the evidence of Mr King, corroborated by photographs and invoices from contractors who performed the decommissioning works and the like, is persuasive that steps have been undertaken which achieved the same ends as those to which the order was directed, and that was done in a timely way. It is appropriate, in those circumstances, to vary the earlier order in the way Mr Wilshier seeks. [13] As to the question of the operation of the extraction stacks, a difficulty is that they were not addressed in the order made on 3 December 2008 and the evidence about noise from them is confusing. During Ms Crowther’s cross-examination of Mr King on 13 March he said that it was unlikely the extraction stacks or fans were functioning or emitting noise because they were required to operate at such times as spray painting was being conducted on the ground floor of Block H, and if the air compressors there had been decommissioned and could not supply air to the ground floor it was unlikely the stacks would be used3 . [14] Later, however, he admitted he did not know what might now be occurring on the ground floor of Block H. Ms Crowther tendered a document apparently presented to his Honour Judge Robin QC at the hearing which led to his order last year 4 which, she said, showed that levels of noise from the extraction stacks were much the same as those from the compressors. As I understood her submissions she thereby sought to establish that offensive noises from, or associated with, the stacks at a level which led Robin QC DCJ to make Order 2(a) should, therefore, lead to a similar order in respect of the extraction fans/stacks. [15] The difficulty with that submission is that, as his Honour’s Reasons delivered 27 October 2008 show, he specifically considered the two extraction fans and stacks in Block H, 5 but was not persuaded to go beyond the orders he actually made and particularly said, at page 26, that there is ‘…no evidence before the court to indicate what more specific orders the court might usefully pronounce’. He had before him the document which became exhibit 2 in this hearing. No new evidence has been adduced, in Ms Crowther’s subsequent applications, to show noise from the extraction fans or stacks offends the legislation. [16] In summary, either the question of noise from the stacks has already, then, been determined or the evidence does not presently establish breaches of the relevant provisions associated with that noise. 3 T1-17.27-34. 4 Exhibit 2 on 13 March 2009. 5 Reasons, p3. -- 4 of 5 -- 5 [17] It will be ordered that paragraph 2(a) of the order made by this court on 3 December 2008 be amended by inserting the words, ‘… or by decommissioning the air compressors in H Block’; and, in the face of the established technical breach of order no. 2, that the respondent pay the applicant’s costs of and incidental to the application filed 3 March 2008 limited to the applicant’s filing fees for that application and the affidavits she subsequently filed in the matter (an order volunteered by Mr Wilshier). The application of that date, and the further application filed 21 April 2009, are otherwise dismissed. -- 5 of 5 --