Crowther v State of Queensland [2002] QPEC 79 [2003] QPELR 346

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Crowther v State of Queensland [2002] QPEC 079 PARTIES: CLAIRE CROWTHER Appellant v. STATE OF QUEENSLAND Respondent FILE NO/S: 2377/02 DIVISION: Planning & Environment Court PROCEEDING: Application ORIGINATING COURT: DELIVERED ON: 20 December 2002 DELIVERED AT: Brisbane HEARING DATE: 18 – 22 November; 9 – 11 December; 13 December 2002 JUDGE: Judge P.D. Robin QC ORDER: Declaration and restraining orders to be made CATCHWORDS: Application for declaration that odour and particulate emissions from foundry and other metalworking processes at an educational institution constituted “environmental nuisance” and for injunctive-type orders – whether “material environmental harm” and breach of conditions of an environmental authority considered – whether “unreasonable interference” with an “environmental value” considered – onus or proof of environmental offences – appropriateness of injunction against State of Queensland. Cotterill v. Young [2000] QPE 011 Maroochy Shire Council v. Barns [2001] QPE 031; [2001] QCA 273 Harkess v. Woodhead (1950) SASR 54 Murphey v. Beaudesert Shire Council [2002] QDC 292 Caloundra City Council v. McGreath [1998] Q.P.E.L.R. 178 Fletcher v May [2001] QDC 081 EPA v Port Kembla Copper Pty Ltd (2001) 15 LGERA 391 Hawkins & Izzard v. Permarig Pty Ltd & Brisbane City Council (No.3) [2001] Q.P.E.L.R. 423 Briginshaw v.Briginshaw (1938) 60 C.L.R. 336 -- 1 of 46 -- 2 Environmental Protection Act 1994, ss.8, 9, 10, 11, 14, 15, 16, 17, 319, 430, 431, 436, 438, 440, 505 Crown Proceedings Act 1980, ss.9 & 10. COUNSEL: The applicant was self-represented Mr. E. Morzone for the respondent SOLICITORS: The applicant was self-represented Crown Law for the respondent The Application [1] The applicant has been self-represented since filing on 14 June 2002 her application for: “1. A declaration that air borne emissions generated by the Yeronga TAFE amounts to an environmental nuisance; 2. An order retraining the Respondent, its servants or agents from allowing the environmental nuisance to continue.” [2] The brief statement of grounds relied on lists the applicant’s residing within 18 metres of the TAFE, that it “generates air borne emissions from several sources including a foundry … which generate an odour which unreasonably interferes with the Applicant’s amenity.” Section 440 of the Environmental Protection Act 1994 (“the Act”) is said to make it “an offence to wilfully and unlawfully cause an environmental nuisance.” The Legislation [3] The application ought to be treated as brought under s.505, which is, in part: “505 Restraint of contraventions of Act etc (1) A proceeding may be brought in the Court for an order to remedy or restrain an offence against this Act, or a threatened or anticipated offence against this Act, by— (c) someone whose interests are affected by the subject matter of the proceeding; or (d) someone else with the leave of the Court (even though the person does not have a proprietary material, financial or special interest in the subject matter of the proceeding).” -- 2 of 46 -- 3 There is no need for recourse to (d), relevant criteria for which are set out in subsections (2) and (3). The Court’s options are set out in sub-sections 5-9: “(5) If the Court is satisfied— (a) an offence against this Act has been committed (whether or not it has been prosecuted); or (b) an offence against this Act will be committed unless restrained; the Court may make the orders it considers appropriate to remedy or restrain the offence. (6) An order— (a) may direct the defendant— (i) to stop an activity that is or will be a contravention of this Act; or (ii) to do anything required to comply with, or to cease a contravention of, this Act; and (b) may be in the terms the Court considers appropriate to secure compliance with this Act; and (c) must specify the time by which the order is to be complied with. (7) The Court’s power to make an order to stop an activity may be exercised whether or not— (a) it appears to the Court the person against whom the order is made intends to engage, or to continue to engage, in the activity; or (b) the person has previously engaged in an activity of that kind; or (c) there is danger of substantial damage to the environment if the person engages, or continues to engage, in the activity. (8) The Court’s power to make an order to do anything may be exercised whether or not— (a) it appears to the Court the person against whom the order is made intends to fail, or to continue to fail, to do the thing; or (b) the person has previously failed to do a thing of that kind; or (c) there is danger of substantial damage to the environment if the person fails, or continues to fail, to do the thing. (9) Without limiting the powers of the Court, the Court may make an order— (a) restraining the use of plant or equipment or a place; or (b) requiring the demolition or removal of plant or equipment, a structure or another thing; or (c) requiring the rehabilitation or restoration of the environment.” -- 3 of 46 -- 4 [4] It is clear that the court’s jurisdiction to make orders depends on the establishing of an offence actually committed against the Act or some apprehended offence. Section 436 of the Act is: “436 Unlawful environmental harm (1) An act or omission that causes serious or material environmental harm or an environmental nuisance is unlawful (“unlawful environmental harm”) unless it is authorised to be done or omitted to be done under— (a) an environmental protection policy; or (b) an environmental management program; or (c) an environmental protection order; or (d) an environmental authority; or (e) a development condition of a development approval; or (f) an emergency direction. (2) However, it is a defence to a charge of unlawfully causing environmental harm to prove— (a) the harm happened while an activity (that is lawful apart from this Act) was being carried out; and (b) the defendant complied with the general environmental duty. (3) The defendant is taken to have complied with the duty if the defendant proves— (a) an approved code of practice or a code of environmental compliance applies to the causing of the environmental harm; and (b) to the extent it is relevant, the defendant complied with the code.” [5] Sections 437 and 438, whose structure is the same, deal with serious environmental harm and material environmental harm respectively. The latter is: “438 Offences of causing material environmental harm (1) A person must not wilfully and unlawfully cause material environmental harm. Maximum penalty—1 665 penalty units or 2 years imprisonment. (2) A person must not unlawfully cause material environmental harm. Maximum penalty—835 penalty units. (3) In a proceeding for an offence against subsection (1), if the court is not satisfied the defendant is guilty of the offence, the court may find the defendant guilty of the offence against subsection 2.” [6] Further down the scale of seriousness comes: “440 Offence of causing environmental nuisance (1) A person must not wilfully and unlawfully cause an environmental -- 4 of 46 -- 5 nuisance. Maximum penalty—835 penalty units. (2) A person must not unlawfully cause an environmental nuisance. Maximum penalty—165 penalty units. (3) In a proceeding for an offence against subsection (1), if the court is not satisfied the defendant is guilty of the offence charged but is satisfied the defendant is guilty of an offence against subsection (2), the court may find the defendant guilty of the offence against subsection (2).” [7] The Act establishes other offences not of immediate concern, such as contravention of environmental protection policies (s.441), releasing a prescribed contaminant (s.442), placing a contaminant where environmental harm or nuisance may be caused (s.443) and interfering with monitoring equipment (s.444). However, s.430: “430 Contravention of condition of environmental authority (1) This section applies to a person who is the holder of, or is acting under, an environmental authority. (2) The person must not wilfully contravene a condition of the authority. Maximum penalty— (a) for a licence, a level 1 approval or for a non-standard environmental authority (mining activities)—2 000 penalty units or 2 years imprisonment; or (b) for a level 2 approval or for a standard environmental authority (mining activities)—300 penalty units. (3) The person must not contravene a condition of the authority. Maximum penalty— (a) for a licence, a level 1 approval or for a non-standard environmental authority (mining activities)—1 665 penalty units; or (b) for a level 2 approval or for a standard environmental authority (mining activities)—250 penalty units. (4) In a proceeding for an offence against subsection (2), if the court is not satisfied the defendant is guilty of the offence charged but is satisfied the defendant is guilty of an offence against subsection (3), the court may find the defendant guilty of the offence against subsection (3).” may be relevant. Authorities under Chapter 4 of the Act have been issued to permit foundry operations of the TAFE. Mr. Morzone, for the respondent, noted that there was no particularization in terms of possible offending in this regard, but did not appear to raise any objection to its being considered. Mention was certainly made of -- 5 of 46 -- 6 this aspect during the hearing and the respondent had ample opportunity to deal with it. [8] In my opinion, where injunctive or like relief is sought to deal with an established odour nuisance, or a threat of some more serious environmental harm, the court would be unlikely to intervene unless past or anticipated future events were of sufficient seriousness and exhibited a certain frequency. If, say, the nuisance seemed likely to be restricted to just an hour or so every month or two, it would be unattractive to intervene if the consequence boded to be the closing down of a significant part of an important educational institution’s programs. In my view, considerations which odour experts identify as the Fidol factors, namely: Frequency Intensity Duration Offensiveness Location ought ordinarily to be consulted when a court determines whether or not the very wide definitions in the Act are satisfied. By s.8: “Environment” includes— (a) ecosystems and their constituent parts, including people and communities; and (b) all natural and physical resources; and (c) the qualities and characteristics of locations, places and areas, however large or small, that contribute to their biological diversity and integrity, intrinsic or attributed scientific value or interest, amenity, harmony and sense of community; and (d) the social, economic, aesthetic and cultural conditions that affect, or are affected by, things mentioned in paragraphs (a) to (c).” -- 6 of 46 -- 7 By s9: “Environmental value” is— (a) a quality or physical characteristic of the environment that is conducive to ecological health or public amenity or safety; or (b) another quality of the environment identified and declared to be an environmental value under an environmental protection policy or regulation.” “Environmental harm” is defined in s.14: (1) “Environmental harm” is any adverse effect, or potential adverse effect (whether temporary or permanent and of whatever magnitude, duration or frequency) on an environmental value, and includes environmental nuisance. (2) “Environmental harm” may be caused by an activity— (a) whether the harm is a direct or indirect result of the activity; or (b) whether the harm results from the activity alone or from the combined effects of the activity and other activities or factors.” Section 15 provides that: “Environmental nuisance” is unreasonable interference or likely interference with an environmental value caused by— (a) noise, dust, odour, light; or (b) an unhealthy, offensive or unsightly condition because of contamination; or (c) another way prescribed by regulation.” The claim of “environmental nuisance” can succeed only if the requirement of unreasonableness in s.15 is established. Sections 16 and 17 set out relevant definitions for the offences created by ss.437 and 438. They are: “16 Material environmental harm (1) “Material environmental harm” is environmental harm (other than environmental nuisance)— (a) that is not trivial or negligible in nature, extent or context; or (b) that causes actual or potential loss or damage to property of an amount of, or amounts totalling, more than the threshold amount but less than the maximum amount; or (c) that results in costs of more than the threshold amount but less than the maximum amount being incurred in taking appropriate action to— (i) prevent or minimise the harm; and (ii) rehabilitate or restore the environment to its condition before the harm. (2) In this section— “maximum amount” means the threshold amount for serious environmental harm. -- 7 of 46 -- 8 “threshold amount” means $5 000 or, if a greater amount is prescribed by regulation, the greater amount. 17 Serious environmental harm (1) “Serious environmental harm” is environmental harm (other than environmental nuisance)— (a) that causes actual or potential harm to environmental values that is irreversible, of a high impact or widespread; or (b) that causes actual or potential harm to environmental values of an area of high conservation value or special significance; or (c) that causes actual or potential loss or damage to property of an amount of, or amounts totalling, more than the threshold amount; or (d) that results in costs of more than the threshold amount being incurred in taking appropriate action to— (i) prevent or minimise the harm; and (ii) rehabilitate or restore the environment to its condition before the harm. (2) In this section— “threshold amount” means $50 000 or, if a greater amount is prescribed by regulation, the greater amount.” Only s.16 has potential relevance in this application; (1)(b) and (c) do not apply; (a) may exclude any possibility of reliance on s.438. Even if applicable, it would add little to the picture, if environmental nuisance is shown. The drafting emphasises that “harm” and “nuisance” may overlap. “Material environmental harm” was established so that a restraining order could be made in Maroochy Shire Council v. Barns [2001] QPE 031. See paragraphs [10]ff and [21]. An application for leave to appeal failed: Maroochy Shire Council v Barns [2001] QCA 273. The Parties [9] It might be mentioned that, so far as the court’s observations are concerned, the respondent, which at the Bar and as a judge, I have come to think of as a hard litigator, has exhibited praiseworthy consideration towards Ms. Crowther. Technical points which might have been taken about affidavits and evidence -- 8 of 46 -- 9 generally were not taken, for example. At times, Ms. Crowther, who said she was “not going to give up [her] day job”, was quite wide of the mark, at other times she was surprisingly focused on the things that mattered. In the end, it seemed to me she presented the case she set out to make effectively, within the limits of the resources available to her. Thus, in an application which was run as dealing with not only odour emissions from the TAFE, but also with particulate emissions, the application suffers from a paucity of expert evidence regarding the latter. Ms. Crowther, who listed her occupation as actress, voice and acting teacher, and both lives and often works in close proximity to the TAFE, was accused by Mr. Morzone of exaggeration, and with some justification. By way of example, the 18 metre separation between the family home at 41 Park Road, Yeronga, where her mother, Mrs. Crowther, has lived for some 47 years, and the TAFE site at Lot 374 SL 5709 (part Reserve 3031 Parish of Yeerongpilly), on the other side of Park Road, was repeatedly used to describe the separation between the 14 or so stacks at the TAFE held responsible for inappropriate emissions and the applicant’s “home”. The true separations are 43 metres and more. I think Ms Crowther was seeking to demonstrate her commitment to her cause, rather than to mislead the court. Commitment and sincerity do not suffice to produce a successful case, which, it is trite to observe, depends on presentation of sufficient credible evidence of facts. See Cotterill v. Young [2000] QPE 011, [16] – [17]. [10] A person’s tendency to exaggerate is something the court ought to keep in mind in assessing the reliability of assertions regarding unwelcome emissions, odour in particular. (Cotterill was concerned with noise from kennels.) See for example Harkess v. Woodhead (1950) SASR 54, 57 and Murphey v. Beaudesert Shire Council [2002] QDC 292, especially [42]. The circumstances overall are such that -- 9 of 46 -- 10 the court has no option but to discount Mrs. Crowther’s suggestions that emissions are there all or most of the time, at least while the TAFE is operating. Unfortunately, in recent times, ill health has interfered with her ability to keep a log of relevant observations. Overall, I assessed Ms. Crowther herself as reliable. I do not question her genuineness or honesty. I see no point in attempting to resolve the single direct conflict of oral testimony which involved Ms. Crowther and Mr. Wells, Acting Director of the TAFE. It concerned whether, just days ago, on an occasion when he admittedly was suffering from a heavy cold, he acknowledged to Ms. Crowther, who had summoned him to the footpath outside her place, that he could smell “something”. He is adamant he could smell nothing, and said so. From my observations of the two of them, I would say that, in some way, a misunderstanding arose. [11] The Crowthers’ problems with emissions from the TAFE go back 10 years or so. While both of them may have been activists in defence of their amenity in earlier times, the mantle has now been assumed by Ms. Crowther. The evidence of experienced experts in the field of odour confirms one’s impression that people may become highly sensitised to odours, because of their own experience, to the point of being hypersensitive, and feeling genuine grievance and/or distress from particular odour emissions which might not trouble an ordinary person who had not undergone the same previous experiences. (This can work the other way, as the entertaining judgment of Abbot J in Harkess demonstrates: his Honour was astounded at the capacity of the defendant’s witnesses to accept what he called “a stench which was indescribably offensive – ‘the rankest compound of a villainous smell that ever offended a nostril’ which remained with one for a considerable time”.) -- 10 of 46 -- 11 The Applicant’s Witnesses [12] It was prudent of Ms. Crowther to assemble a sizeable group of witnesses to support her complaints, lest she be assessed as so idiosyncratic that her complaints about odour be discounted as evidence of the impacts the Act requires, if the court is to be given a discretion to order relief (which impacts, I think, must be assessed in a more objective way, in terms of how the ordinary person might react). Excluding her three odour experts (each of whom, unlike Mr. Wells on the recent occasion, was able to say he smelt something, by way of corroborating Ms. Crowther in respect of a particular odour incident), she claimed to have 25 or 26. I have not counted. Not all of her deponents were required for cross-examination. Some of these are local residents who have made common cause with her over the years, some are regular visitors to the area as students of hers in a local church hall, which lies on the far side of Cork Street (it runs parallel to Park Road behind the Crowther property), there were some more recently arrived residents of the area and some witnesses found fortuitously, such as a teacher at Yeronga State Primary School, some distance to the south of the TAFE across Villa Street, who, with her class, experienced one highly disturbing odour incident on 8 March 2002 (I think she recalled another). I readily accept that she and the other witnesses, especially those who live nearby with young children, harbour genuine concerns and are genuinely distressed at the possibility the odours might signify a threat to health. (A Health Department report said to deny existence of any health issues referred to in the respondent’s written outline of argument was never put into evidence.) The odours are frequently associated with distressing physical sensations other than exposure to -- 11 of 46 -- 12 smell, such as breathing difficulties, smarting eyes, the sensation of a swollen tongue, interfering with the ability to articulate. [13] I accept the evidence of those witnesses. There is no need to canvass the detail of it. I ought to note, however, the difficulty there is about harmonising the evidence of the lady who resides in a block of units across Park Road from the TAFE, insofar as she spoke of going to bed on occasions, troubled by offensive odour, at about 8 p.m. or 9 p.m. and then waking from sleep to find the odour still there. She could not satisfactorily estimate at what time(s) this would occur. She may be speaking of troubling odours at hours in the night time when no one else has noticed them. The possibility of lingering odours was mentioned by expert and lay witnesses, and it may be there are features of her unit and what she does regarding opening or closing of doors or windows, et cetera to explain the disharmony I have mentioned. I intend no criticism whatever of the witness, but have considered it prudent to treat it separately from that of the applicant’s other lay witnesses. She also spoke of being troubled by air-borne particulate matter, which she says settles in alarming quantities, and is especially obvious both floating and falling to the bottom in her cat’s water bowl, which is kept on her balcony exposed to the TAFE. Although Ms. Crowther indicated that complaints in this respect were not made at times when the TAFE was on vacation, there was simply no evidence from the lady to that effect. I am not entitled to speculate. To an extent, TAFE activities are sporadic, so that one would not expect the persistent and regular occurrences of deposits of particulates described by her if TAFE were the culprit. The court should not rewrite her evidence for her. Her unit, and particularly the balcony, is relatively close to the railway line which appears to be used by large numbers of trains carrying coal in -- 12 of 46 -- 13 open wagons to the port. This gives rise to particular difficulties in identifying the TAFE as the culprit. Denials of Odours by Respondent’s Witnesses [14] The respondent relied upon an affidavit of the principal of the primary school and on the evidence of the proprietor of a Long Day Child Care Centre adjacent to the Crowther property located more distantly from the TAFE and set further back from Park Road to indicate that they had never noticed any offensive odours. Assuming the applicant’s witnesses are correct to any extent, the explanations for the discrepancy might be many. I would assume the principal’s duties for the most part kept him well away from the few classrooms closest to the TAFE (where the staff member who has come forward to say she noticed odour was teaching at the relevant time(s)); the school, unlike the child care centre, would be outside the path of the prevailing north-easterly breezes. There was no evidence as to what time (if it was any appreciable time at all) the child care centre proprietor (whose business takes children of parents associated with the TAFE and who was accused by Ms. Crowther of having a compromising financial interest) might actually have spent at the Centre. It is most unlikely she would be on the premises for the whole of the 6.30 a.m. to 6.30 p.m. child care operations there. It may be that both of those witnesses had a less acute sense of smell than most. It does not seem that either lives in the area. Assessing the Alleged Odour Nuisance and TAFE’s Culpability -- 13 of 46 -- 14 [15] I must regard Ms. Crowther (and her mother perhaps moreso) as being more sensitive or sensitised to odours of the kinds they associate with the TAFE than the hypothetical ordinary person. This is borne out by the slighter impressions of odours she felt keenly upon her corroborating expert witnesses (I hasten to say there is no rule about this: Senior Judge Skoien appeared to prefer the lay assessment to expert assessment in Murphey at [43]). There is no reason to regard the other residents of and visitors to the neighbourhood south west of the TAFE across Park Road or the primary school teacher who gave evidence as abnormally sensitive. No resident was called to present evidence denying offensive odours. Some of the witnesses maintained logs in a form recommended by the Environmental Protection Authority. If an offensive odour was detected, the time and duration of the event was to be noted, along with the log-maker’s description in words of the nature and intensity of the odour. It is no more than common experience and it seems to be accepted in all the cases that in such circumstances, considerable variation among reporters is to be expected. [16] Dr. Best prepared a number of schedules relating to different months in which he summarised the reports of odours noted in logs or diaries made available to him. See Exhibit 2 to his affidavit. Exhibit 60 is a document prepared by the respondent setting out alongside a list of the “complaints” (a number of which, but by no means all, involve more than one reporter) the TAFE classes scheduled for the days/times in question. I understood that the use sought to be made of Exhibit 60 was to exonerate the TAFE as the culprit, at least on sufficiently numerous occasions to lead the court to doubt the complaints. At times, the timetable showed “no classes” but there was supposedly an odour event. At other times there is corroboration, in the sense of opportunity for the TAFE to be the culprit, because appropriate classes, -- 14 of 46 -- 15 for example in welding, were timetabled. Exhibit 60 deals with the period from 6 July 2001 to 1 December 2001, 149 days. Dr. Best’s collection of dates for odour events referred to July 6, 12, 19, 26, August 2, 9, 16, 23, 29 and 30, September 6, 8, 12, 17, 18, 19,. 20, 22, 24, 25, 27, October 4, 9, 10, 15, 18, 22, 23, 25, 27 and 30, November 6, 7, 8, 13, 14, 15, 20, 21, 22, 23, 24, 27, 28, 29 and 30 and December 1 (47 days). Exhibit 60 indicates the last week of September was a vacation period, but the odours recorded then focused on ammonia, not usually recorded. It appears that ammonia was used at this time in the course of maintenance work in the stacks constructed at the TAFE to collect, remove and disperse emissions of the kind generated in the course of relevant activities. In some respects Exhibit 60 is misleading, in that the timetable did not tell the true story. It suggests there could have been no event on 30 November but, indubitably, there was, as attested by notes of an officer of the Environmental Protection Authority. [17] In this vein, the court was grateful to have the contribution of Mr. McCabe, the principal teacher in the foundry. Apart from confirming that the selection of sands or other moulding materials might have a lot to do with the odours generated (617 – 18), he gave impressive and frank evidence which revealed that an exercise in which he had participated to produce a list of “pours” in the foundry (to be used in an effort to disprove claims of pours on particular days) was incomplete. He had missed some dates noted in the documents he used (class rolls and his personal diary). He agreed that there could have been pours on other days nominated by Ms. Crowther (one of her forensic triumphs) which he had not noted. (There is no suggestion intended here of any impropriety. It was not part of Mr. McCabe’s duties at the relevant times to record such things, as it has come to be very recently; -- 15 of 46 -- 16 I understand this was simply a case of Mr. McCabe having some material which the respondent and/or the respondent’s advisors thought might be helpful.) [18] The foundry situation is symptomatic of the TAFE’s record keeping with regard to activities that might produce odour or particulate emissions generally. There is no reason to see anything sinister in it, but, so far as concerns this application, in the absence of a responsible witness who could say from his or her personal knowledge that a particular event did not take place, the court is quite unable to find the negative proved. Of course, it is the applicant who bears the onus of proof, but where credible witnesses contribute to a scenario of an event happening at the TAFE and generating recorded odour emissions, the respondent appears bereft of ammunition, so to speak. One of the difficulties the respondent faces is that most of the training at the TAFE is now “self-paced”, so that it is exceptional to have a whole class of apprentices, say, engaging in a welding exercise at the same time. There was a suggestion from the applicant that keys for after hours access were available so that odour-generating activities might have occurred at all hours. While the possibility might exist, the evidence did not show that this happened or was liable to happen on any significant scale. [19] Taking Dr. Best’s list of complaints in the specific period under examination as accurate, and there is no reason not to, from 6 July to 1 December 2001, there were odour events recorded on about 30% of the days included. I do not for a moment suggest that Abbott J’s approach in Harkess provides any particular guidance, much less any rule to follow, but it is interesting that the recording of odour nuisance in diaries on about 17% of days over a two-year period was sufficient to satisfy him of any requirement of frequency of nuisance events to support injunctive relief. The -- 16 of 46 -- 17 30% ratio indicated here requires qualification, for example, by setting aside the ammonia events, but the frequency, even if heavily discounted, is sufficient in my view to cause concern on the basis of the necessary inquiry to determine whether the definitions set out in paragraph [8] are satisfied here. I confirm the court’s awareness of the varying duration of odour events reported, some of which are quite short; this has been taken into account in assessing unreasonableness for purposes of s.15 and generally. [20] While I have focussed on the period July – November 2001 above, for the reason that the respondent produced Exhibit 60, Dr. Best produced a similar summary of complaints for the early months of 2002 (in Exhibit PB2 to his affidavit filed 19 July 2002). Complaints from the Crowther household (predominantly by the applicant’s mother) arose on 40 of the 95 days commencing 22 January. (Ammonia smells on 7-8 January were related to maintenance of “exhaust towers”.) Setting aside those reports of odour incidents entirely, in the 75 days commencing 7 February, complaints from others were produced in respect of 18 days, six of which do not coincide with Crowther complaints. There were thus 12 days when other complaints “corroborated” the Crowthers’, as they did on 23 January 2002. I am conscious that the exercise done may not make allowances for the summer vacation periods, but the 75 and 90 day periods do include the 2002 Easter break. [21] It might be noted that during the two weeks for which the application stood adjourned after the first week of hearing, further odour events have occurred reflecting a frequency in line with that estimated above. It is difficult to accept Miss Crowther’s charge that these recent events show the respondent’s disregard for her and her local supporters; one would expect the respondent’s concern to have been to -- 17 of 46 -- 18 avoid doing anything to prejudice its case. Ordinary classes had finished for the year, but the evidence shows that the TAFE, as well as having contractual obligations to run its “ordinary” classes, from time to time contracts to provide special courses. Some of the contracts to provide even the “ordinary” training may create obligations in the TAFE to be satisfied years ahead. Particulars were not given, but it may be accepted that an order of the court effectively closing down particular activities might lead to the TAFE’s being in breach of contract, quite apart from depriving trainees of useful instruction. Can TAFE Activities be Relocated to Other Sites? [22] I take it as self evident that it is in the public interest for the TAFE’s activities to continue, particularly those related to the foundry and welding. As to the latter, there would be alternative TAFE institutes that could provide the training Yeronga currently offers, in particularly Moreton and Brisbane North. There is no alternative TAFE location for the teaching of foundry skills. It appears that in the past hope was held out to the Yeronga residents that teaching activities at Yeronga might be transferred to the Construction Training Centre at Beaudesert Road, Salisbury. This is a joint venture involving the State of Queensland in some way or another and the building and construction industry as joint venturers or partners. Located in an industrial area, it appears a much more suitable location for activities which, under modern thinking, are incompatible with residential amenity. In my view, that is the case even though the scope of the TAFE’s industrial activities which produce emissions (“contaminants”, for purposes of the Act) may be tiny when compare with commercial operations using similar processes. It appears that agreement has been reached for the transfer to Salisbury of construction-related instruction, such as painting and decorating, plumbing (which involves a certain amount of welding in -- 18 of 46 -- 19 the open L Block at Yeronga), cabinet-making and other wood-based trades, flooring of various kinds, brick laying and tiling and so on. Metal industry related training, which accounts for the bulk of the local residents’ concern, is not included. It may be doubted whether the relevant activities come within the remit of Salisbury. In any event, the State government lacks authority under the legal framework governing Salisbury to unilaterally dictate what should happen there. [23] The applicant has sought to refine her original claim for relief by bringing in a claim that the court restrain the nuisance “and set orders for relocation”. There is simply no jurisdiction to do that, assuming a case on the merits could be shown. Evidence of the availability of some other location(s) where instruction in foundry skills, in particular, could be feasibly provided would make it easier for the court to entertain making an order which indirectly or in effect would close down foundry activities at Yeronga. Is Incompatibility between TAFE and Residential Uses Decreasing? [24] This is not a planning case. Unlike Maroochy Shire Council v. Barns, it has nothing to do with whether a planning offence can be established, still less with the merits of locating the uses made of the TAFE site adjacent to a residential area already long established when the TAFE began about 1967. The TAFE has grown considerably since then. What has been taught there has changed over the years, student numbers have fluctuated – they are said to be declining for the moment in the industrial trades giving rise to the present problems. It is profitless to go into why it might have been that no issues with local residents arose until the 1990s, or why the residents’ concerns continue unabated, notwithstanding developments which one would expect to have alleviated the situation, such as replacement of coal as a fuel -- 19 of 46 -- 20 or energy source, by alternatives such as coke or electricity. Intriguingly, the TAFE has toyed with the idea of using charcoal in recent times – a fuel source more likely to cause odour nuisance to neighbours than coke. Materials obtained by the applicant under disclosure and FOI (as to which I would observe that there seems to be little scope for any complaint of material being withheld – Ms Crowther made no such complaint) indicate that at the TAFE’s instance the neighbours’ complaints have been professionally evaluated from time to time and assessed as calling for remedial action; the safety and amenity of TAFE staff and students was also seen as being protected by such actions; everybody benefits from what might be thought of as “clean air”. Some of the recommendations have been taken up, but others have not, presumably being assessed as impractical or too costly in light of the locations, layout and nature of the TAFE’s rather basic, and now antiquated buildings. The cost of further improvements might have been difficult to fund. The “Stacks” at Yeronga TAFE [25] The work done has included the installation of ventilation systems to extract “foul” air, notably in relation to welding and metal cutting and grinding operations, in C Block and D Block. Local residents have seen the appearance of serried ranks of stacks extending a metre or so above rooflines in those blocks and it seems, in the case of the more recent set, without being given any advance notice of what was proposed or any opportunity to comment. While there is no basis for considering that it was deliberate, the fact is that the stacks, likewise a large roller door at the western end of E Block, where the foundry activities take place, have been placed as near as they possibly could be to the residences. The prevailing north-easterly breezes will carry emissions in the direction of the residences, rather than in the direction of the State Primary School to the south of the TAFE or the State High -- 20 of 46 -- 21 School which it is the TAFE’s eastern neighbour. Although the 5 hectare site is crowded, in principle, there seems no reason why the stacks dispersing concerning emissions and, more to the point, the emissions-producing activities could have not been located elsewhere on lot 374, so that the TAFE grounds, for example, appeared to be the recipient of wayward emissions, rather than the local residents. The respondent’s expert evidence (from Dr. Miller and Mr. Schulz) was laudatory of the air extraction systems, although their efficiency and effectiveness have not been positively established. The local people, as I would expect ordinary people anywhere to be, were not only suspicious of the stacks, being understandably both uncertain and fearful about what might come out of them; they seem to think the stacks have made things worse. Park Road, like the terrain on both sides, rises towards the south. Traversed from the north, it rises as one approaches the TAFE site, as one moves past it and as one moves further south. The northern boundary of the TAFE site meets a high embankment carrying a railway line across Park Road. The topography of the general area and features of the configuration of buildings on the TAFE site create what must be accounted a reasonable possibility that emissions from the stacks, rather than being dispersed over a very wide area, which is doubtless the intention, are affecting nearby residences to the south west. No smoke test has been done in wind or breeze conditions of any kind to trace the path of emissions from the stacks. (Ms Crowther asserted the transcript at page 482 does her an injustice in not ascribing to her the credit for raising the question of smoke tests. Nothing turns on who should have the credit. She did not demonstrate that Mr. Schulz designed or limited the tests and investigations he carried out for purposes of his recent report with a view to protecting the TAFE’s position. He acknowledged constraints flowing from limitation of resources.) -- 21 of 46 -- 22 Measuring Stack Emissions [26] Only very limited tests have been carried out of stack emissions. Samples were collected from the top of selected stacks and removed for assessment at Mr. Schulz’s premises by a dynamic olfactometer, which consists of experienced people, appropriately prepared and “calibrated”, who are exposed to the test sample – first, highly diluted, then progressively less diluted, until they detect the “odour”. They are exposed to air from two ports, one delivering “clean” air. I have assumed they do not know which is which. Assessment of emissions in terms of “odour units” is related to the level of concentration at which an odour is detected, which, of course, varies from person to person. The respondent’s case was that, if the testing be accepted, even “scaled up” as it was by Dr. Best, to cover circumstances in which the relevant TAFE facilities were being operated at full capacity, the stack emissions would be not be a nuisance, much less cause harm to people of ordinary (or even raised) sensitivity. What has been said does not acknowledge the existence of complexities of other kinds, for example where emissions involve combinations of different odours. [27] While I accept the possibility of stack emissions generating environmental nuisance or environmental harm, the applicant has established neither. The annoying emissions appear to be “fugitive” ones, meaning ones exiting TAFE buildings by open windows or doors. Mr. Schulz himself observed that his testing of stack emissions was being compromised because windows and/or doors were left open, so that the air extraction system, even if operating, was not operating as it was designed to do, namely, with doors and windows closed, except to the extent that some inlet for air had to be provided (Transcript, 661). The system is designed to ensure that all emissions from buildings serviced by stacks exit the relevant building -- 22 of 46 -- 23 via the stacks. Mr. Schulz did what he could to bring about such conditions for his testing. His experience confirms my own assessment based on a view held on the first day of the nine day hearing. The air extraction systems are noisy, they do not operate all the time, only as occasion demands, when they must be turned on at a master switch on the relevant floor. There would be a temptation facing students and staff not to turn on the extraction system, especially if it was thought that emissions caused in activities about to be commenced would be limited in intensity or duration. Further, opening windows and doors where possible allows cooling air flows through premises which, as was the case on the view, would often tend to be uncomfortably hot if closed up. The doors I refer to include the large roller-door on the western end of Block E and wide doors permitting large items to be moved in and out of workshop floors by crane. I was not persuaded by Mr. Morzone’s entreaties to proceed on the basis that students would be used to noisy or stifling conditions in their employers’ workplaces, and would readily tolerate them at the TAFE. It was noted on the view that certain painting and plumbing activities that would normally be performed in the open air on a real job, were accommodated under cover. As to foundry operations, Mr. McCabe acknowledged the desirability of relatively open buildings, which I would think might be essential for safety reasons; he acknowledged the possibility of using sealed, air-conditioned premises, but had never heard of it actually happening. [28] In recent weeks, Mr. Wells, as acting head of the Yeronga TAFE, has issued a “work instruction” (Exhibit IWW27 to his affidavit) mandating use of the extraction systems when relevant operations are being conducted; it does not require apertures that might allow fugitive emissions be closed. His edict came only when classes for 2002 were almost over. The court cannot feel any degree of confidence -- 23 of 46 -- 24 that it would prove effective in the future. I would be disinclined to contemplate the making by the court of any order which required TAFE students and staff to carry out their activities in conditions which might be uncomfortable, even intolerable on occasions. The areas where “practical activities” take place are generally not air- conditioned, unlike the classrooms. Mr. McCabe mentioned how hot students found conditions during “pours”. It is a different issue whether or not TAFE authorities on the spot and managing the day-to-day affairs of the institution would see fit to do what the court should shrink from. The EPA [29] The applicant and those she says, with justification, she represents have become disgruntled with the Environmental Protection Authority (the “EPA”), an attitude which appears to be reciprocated, to the point where, in view of the EPA, the only nuisances in the scenario are certain local residents, the TAFE’s activities creating no cause for concern. The court made it clear to Ms Crowther from the outset that the application, to which neither the EPA nor any officer of the EPA is a party, must not be used as any kind of investigation into or assessment about the EPA. While I would expect the EPA and its officers to harbour a similar approach to the court’s about the undesirability of unduly hampering the TAFE in the carrying out of its useful functions, there is no basis for concluding that the officers have not gone about their functions in a professional and scientific spirit and manner. (I emphasise that Ms Crowther was discouraged from presenting material which might have tended to show anything else.) It remains the case that the EPA’s investigations have been of little or no value. Dr. Best’s first foray into the matter was a devastating critique of the EPA’s main on-site investigation. It turned out to be utterly useless because, as ill-luck would have it, it was carried out in wet weather -- 24 of 46 -- 25 conditions. My understanding is that the EPA has stood by its testing, adopting the stance that the local residents ought to accept it. They may entertain unrealistic expectations as to the quantity of resources the EPA might devote to their concerns. There may have been too much inflexibility on both sides. However it came about, there seems to have arisen an unfortunate mutual want of confidence. There has been a somewhat farcical mini-saga of EPA personnel being summoned to Yeronga to verify odours which, on their assessments when they arrived at the scene, were non-existent. During an eight day period when a particular officer, whose mobile phone number was offered to local residents, was made available to respond to complaints, the local residents avoided turning to him, although recording odour events (which I am satisfied occurred) in their logs, etc. I accept that the local residents were not given the information (which might have heartened them had they had it) that the EPA officer’s home was not too far away. The court was not favoured with advice of his address either. I accept from Ms Crowther (from the bar table, rather than in evidence) that another opportunity offered by the EPA for assessment of emissions issues was not taken up, because the local people were given to understand that they had to commit themselves in advance to accepting the EPA assessment, whatever it might be. The Environmental Authority [30] The EPA has become involved in the issuing of “Integrated Authorities” under s. 311 of the Act. This has been limited to a couple of environmentally relevant activities to deal with the metal foundry. The current Integrated Authority SR 2345 (“the Authority”, a barely legible copy of which is Exhibit 59) took effect from 10 June 2002. It replaces an earlier one, said to be SR799, apparently in identical terms. The Authority issued to the Department of Employment & Training, Park -- 25 of 46 -- 26 Road and Villa Street, Yeronga. The point of the Authority is to detail the conditions upon which activities may take place on lot 374. There is no limitation by reference to Block E, so that the Authority would presumably permit re-location of foundry activities from Block E to elsewhere from the site. The general conditions include: “Nuisance (A6) Notwithstanding any other conditions of this environmental authority, this environmental authority does not authorise any release of contaminants which causes or is likely to cause an environmental nuisance beyond the boundaries of the licensed place.” [31] Schedule B deals with “Air”: “Schedule B – Air Non Specified Releases of Contaminants to the Atmosphere (B1) Except as otherwise provided by the conditions of the air schedule of this environmental authority the environmentally relevant activities must be carried out by such practicable means necessary to prevent the release or likelihood of release of contaminants to the atmosphere. (B2) Where it is not practicable to prevent a release of contaminants to the atmosphere as required by B1, the environmentally relevant activity must be carried out by such practicable means necessary to minimise the release or likelihood of any such release of contaminants to the atmosphere. Fuel Burning – Blacksmithing Forges (B3) The quantity of fuel burned in any one (1) hour period is not to exceed four (4) kg (kilograms); (B4) The sulphur content of any fuel burned in industrial fuel burning equipment is not to exceed 0.4 percent by weight. (B5) The fuel which may be burned in Industrial fuel burning equipment is coke, within specification:- Size range up to 200 mm; Moisture content (max) 3% Noxious or Offensive Odour (B6) Notwithstanding any other condition of this environmental authority no release of contaminants from the licensed place is to -- 26 of 46 -- 27 cause a noxious or offensive odour beyond the boundaries of the licensed place. Melting Furnaces (B7) Scrap metal for use in making furnaces is not contaminated by oil, grease, polymer, paint or heavy metal plating. Cyclone – Pattern Making Area (B8) All contaminants leaving the pattern making area dust extraction system must be treated in a cyclone. (B9) All collected material removed from the cyclone must be removed and disposed of in a manner that will not cause the release of contaminants to the atmosphere or to waters.” [32] Of the Air conditions, although Ms Crowther attempted to go further afield, by reference to B7, for example, the application is really about B6. Definitions are provided of “noxious” and “offensive”: ““noxious” means harmful or injurious to health or physical well- being. “offensive” means causing offence or displeasure; is disagreeable to the sense; disgusting, nauseous or repulsive.” [33] The definition of “contaminant” is garnered from the Act, which provides: “10 Contamination “Contamination” of the environment is the release (whether by act or omission) of a contaminant into the environment. 11 Contaminant A “contaminant” can be— (a) a gas, liquid or solid; or (b) an odour; or (c) an organism (whether alive or dead), including a virus; or (d) energy, including noise, heat, radioactivity and electromagnetic radiation; or (e) a combination of contaminants.” [34] The Authority deals with other kinds of potential nuisance, such as noise. The applicant faintly attempted to raise a noise issue (noise is covered by the Authority), also one of light; flames, sparks etc, connected with the welding were said to -- 27 of 46 -- 28 produce potentially dangerous distractions to people who might be startled by them. Judge Quirk has made an order limiting the issues to particulate and odour emissions. While I reject the applicant’s assertion that use by her witnesses of the words “disgusting”, “nauseous” or “repulsive” (which she says they could not have known were significant) advances the case, I am satisfied there has been a breach of Authority Condition B6 by the release of “contaminants” emanating from the foundry in Lot 374 causing “offensive odour beyond the boundaries.” It is not necessary to go so far as to find that such odours are “noxious” (assuming mere odours can be noxious), in the absence of medical or scientific evidence as to the effects on health or physical well-being. I might not require much persuading that there are debilitating effects and that the relevant odours are productive of considerable anxiety. [35] Ordinarily, having an environmental authority (such as the Authority) might protect the holder against complaints (even charges) of offences that might otherwise be established. See s.436(1)(d) and Fletcher v May [2001] QDC 081 at [25] per Judge McGill SC. There are useful comments in the following paragraphs to which Mr. Morzone and, later, the applicant referred: “[26] The argument on behalf of the appellant focused on the question of what it was that was authorised to be done or omitted under, relevantly, an environmental authority. It was submitted that, relevantly, the environmental nuisance was causing the emission of the odour, and that therefore s.119 would not apply unless the emission of the odour was something authorised to be done under an environmental authority. Because the authority, Exhibit 8, did not in terms authorise the emission of odour, s.119 did not provide a defence to this complaint. It was submitted on behalf of the respondent that the case as particularised was that the relevant act or omission was operating a feedlot, and reliance was placed on the particulars referred to earlier. It was inherent in the operation of a feedlot that odour would be emitted, so that the approval was pointless unless it permitted the emission of an odour. -- 28 of 46 -- 29 [27] I do not accept the respondent’s submission for two reasons. First I would interpret the particulars given as indicating that the relevant act or omission was causing the odour to be emitted, rather than operating the cattle feedlot. Second, although the emission of an odour may be inherent in the operation of a feedlot, it is by no means automatic that the emission of an odour results in an environmental nuisance. That term is defined in s.15 as follows: “Environmental nuisance is unreasonable interference or likely interference with an environmental value caused by – (a) noise, dust, odour, light; or (b) an unhealthy, offensive or unsightly condition because of contamination; or (c) another way prescribed by regulation.” An environmental value is in turned defined in s.9 as: “(a) a quality or physical characteristic of the environment that is conducive to ecological health or public amenity or safety; or (b) another quality of the environment identified and declared to be of environmental value under an environmental protection policy or regulation.” No reliance was placed on para. (b) of s.9 for the purposes of this prosecution. [28] The term “environment” is defined in fairly broad terms, in s.8. An absence of unpleasant odour could be described as a quality of a place, and hence the environment, that is conducive to public amenity, and therefore an environmental value for the purposes of s.9, so that unreasonable interference or likely interference with that quality caused by odour is an environmental nuisance. But the key consideration here is the word “unreasonable”; as with public nuisance at common law, it is not any interference with the environment which is an environmental nuisance, it needs to be unreasonable. What is unreasonable is obviously a matter which can only be decided by reference to a particular case, involving all of the factors relevant in the circumstances, but factors such as the nature and intensity of the odour, the regularity with which it is emitted, and the number of people affected, as well as the character of the neighbourhood would all be factors which I would expect, by analogy from the position in relation to common law public nuisance, would be relevant: Don Brass Foundary Pty Ltd v. Stead (1948) 48 SR(NSW) 482 at 486-7; Baulkham Hills Shire Council v. Domachuk (1988) 66 LGRA 110. A feedlot located in a rural area where there were few people living close enough ever to notice the odour, and where the odour would be no more than an occasional inconvenience, could probably produce large quantities of odour without constituting an environmental nuisance. Whether or not a tree falling in a forest creates a sound if there is no one there to hear it, a feedlot operating in the bush does not create an environmental nuisance if there is no one there to smell it. -- 29 of 46 -- 30 [29] Accordingly, it is not necessarily inherent in the approval of a feedlot operation that the emission of odour in circumstances constituting an environmental nuisance is also approved. But it does not necessarily follow that the act on its true constructions produces the result that the approval is irrelevant to the question. What matters is the true construction of s.119(1). In relation to the appellant’s argument, if the relevant act is the emission of an odour rather than carrying on an activity which generates an odour, I would expect to see some provision in the Act for the emission of an odour to be authorised under the various things listed in subsection (1). I will have to consider them separately.” (The numbering of sections in the Act has since changed.) Here it is clear that Condition A6 does not authorise release of contaminants causing or likely to cause an environmental nuisance beyond the boundaries of Lot 374. It may not be an offence to exceed the licence by doing what is “not authorised”; it is an offence to contravene Condition B6. I am satisfied (and satisfied beyond reasonable doubt) that the authorised entity here has contravened Condition B6, in the sense of suffering repeated contraventions. It is not necessary that this be wilful. See s.430(3). Compare sub-s (2). Further, I think it is much more likely than not that, unless an order is made under s.505(5), contraventions will continue. [36] The foregoing paragraphs under this heading relate only to the foundry. There can be no question of an offence by way of contravention of a condition of the Authority (or any earlier authority) having been committed in relation to other activities of the TAFE. As to those other activities, nothing would be achieved by an order requiring compliance with Authority conditions; so far as s.436 and s.440 are concerned, none of the six provisos in s.436(1) applies, the Authority being limited to the foundry (which the Authority itself treats as covering the blacksmithing activities carried out adjacent to the foundry proper). As to sub-s (2), the harm generating uses must be accounted lawful (a situation entrenched by the -- 30 of 46 -- 31 Minister’s having directed a designation of the TAFE site in February 2002 under s2.6.1 of the Integrated Planning Act 1997 – see Government Gazette of 15.2.2002 (No. 39) - for purposes of Town Planning arrangements for Brisbane). The respondent has not shown, the relevant standard of proof being balance of probabilities here, that the general environmental duty was complied with. In the absence of any suggestion that a code exists to make sub-s (3) relevant, one turns to s.319: “319 General environmental duty (1) A person must not carry out any activity that causes, or is likely to cause, environmental harm unless the person takes all reasonable and practicable measures to prevent or minimise the harm (the “general environmental duty”). 1 (2) In deciding the measures required to be taken under subsection (1), regard must be had to, for example— (a) the nature of the harm or potential harm; and (b) the sensitivity of the receiving environment; and (c) the current state of technical knowledge for the activity; and (d) the likelihood of successful application of the different measures that might be taken; and (e) the financial implications of the different measures as they would relate to the type of activity. Environmental Harm / Environmental Nuisance Established [37] Mr. Morzone handed up a document titled “Summary of Evidence by Resident Witnesses – Frequency, Intensity, Duration, and Offensiveness of Alleged Odours”, which I have retrospectively marked Exhibit 62, so that it may be easily identified. Its purpose was to reveal the paucity or unacceptability of evidence of odour complaints. The summary document does not dissuade me from adherence to the views indicated elsewhere. Even significantly discounted, the evidence of those witnesses establishes “environmental harm” for the purposes of Act; the definition refers to three of the FIDOL factors – duration, frequency and intensity – which I 1 See section 24(3) (Effect of Act on other rights, civil remedies etc.) -- 31 of 46 -- 32 find are established, likewise the offensiveness and location aspects.. The term includes “environmental nuisance,” which may be constituted by odour, likewise “an offensive condition because of contamination”. The applicant must show (and does) that there is such a nuisance which has interfered unreasonably with some “environmental value”; at the very least, that environmental value is constituted by qualities and characteristics of the environment in this eastern part of Yeronga where it is conducive to public amenity”. “Environment” could hardly be more widely defined. The “environmental harm” which I am satisfied has occurred (by odour emissions) and which is likely to continue to occur is not, in my view, taken out of the category “material environmental harm” by s16(1)(a). General Environmental Duty not shown to be Complied With [38] It is for the respondent to avoid trouble under s.438 by showing the general environmental duty has been complied with: see s.436(2)(b). The sporadic steps taken so far have in my view been ineffective, and those proposed, from the point of view of making a court order unnecessary, seem unlikely to be effective. The court appreciates the undertakings offered by the Director-General to follow up the steps (commencing with further investigations) suggested by Mr. Schulz. However, the stage is reached where the court would have more confidence in a satisfactory future outcome being achieved upon the basis of an order, than in hope of compliance by all those various individuals who might become involved with the letter and spirit of an undertaking given by the State. Breach of Trust? -- 32 of 46 -- 33 [39] Ms Crowther placed reliance on remarks of Pearlman J in the Land and Environment Court of New South Wales in EPA v Port Kembla Copper Pty Ltd (2001) 15 LGERA 391; 398-399, confirming the concept well established in that Court that “contravention of a pollution licence involves a breach of public trust”. This occurred under the heading, “Sentencing principles”, which establishes the irrelevance for present purposes of the principle stated. It is deserving of notice here, because it is likely that this court will be asked to consider its attitude in the appropriate context. An adverse feature of an offence pointing to a heavier penalty, in the form of a “breach of trust”, is not in my view a relevant factor in determining the issues presently before me, which concern whether or not an offence has occurred, and what ought to be done to prevent repetition, but do not call for consideration of whether there should be a penalty imposed, and if so, what penalty. I make it clear that the application is being determined by me on the basis of my findings about the ways in which the TAFE currently operates, going back no more than a year before the application was filed (I do not think there has been any significant change since). Whatever the TAFE may have done earlier, while not to be disregarded (it may suggest witnesses are over-sensitive, for example), is not being used by this court in any way to the prejudice of the respondent. Availability of Injunctive Relief [40] The Act binds the Crown (s.22). While it is unusual to contemplate an injunction against the State of Queensland, Mr. Morzone has conceded that one may be ordered, having regard to s.9 and s.10 of the Crown Proceedings Act 1980. Cf Halsbury’s Laws of England (4th ) 24:924. Enforcement of an injunction may present problems, but one would suppose that if it were shown that an individual had been knowingly concerned in the court’s order being disregarded, he or she -- 33 of 46 -- 34 could be dealt with for contempt. I am sure matters would be most unlikely to ever get so far. The relevant authorities, one would expect, would take reasonable steps to ensure the order of the court was complied with. Section 431 of the Act ought to be noted: “431 Environmental authority holder responsible for ensuring conditions complied with (1) The holder of an environmental authority must ensure everyone acting under the authority complies with the conditions of the authority. (2) If another person acting under the authority commits an offence against section 430, the holder also commits an offence, namely, the offence of failing to ensure the other person complied with the conditions. Maximum penalty—the penalty under section 430(2) or (3) for the contravention of the conditions. (3) Evidence that the other person has been convicted of an offence against section 430 while acting under the authority is evidence that the holder committed the offence of failing to ensure the other person complies with the conditions. (4) However, it is a defence for the holder to prove— (a) the holder issued appropriate instructions and used all reasonable precautions to ensure compliance with the conditions; and (b) the offence was committed without the holder’s knowledge; and (c) the holder could not by the exercise of reasonable diligence have stopped the commission of the offence.” Onus of Proof [41] So far as onus of proof is concerned, the Environmental Protection Act is not at all helpful in its repeated references to convictions being possible if the court is “satisfied”. One would think that, where the direct consequence of a finding in proceedings might be a penalty, the court must be satisfied beyond reasonable doubt, on general principles. There are authorities in this court, which Mr. Morzone indicated he accepted, to the effect that the criminal standard of proof does not apply in other proceedings, such as the present, even though the proposition to be established is that an offence has been committed. See Caloundra City Council v. -- 34 of 46 -- 35 McGreath [1998] Q.P.E.L.R. 178 where, at page 182, Judge Dodds briefly considered the point: “Submissions by the Respondent were addressed to the standard of proof required of the Applicant since the power to make orders under s.194 of the Act is predicated upon the Court being satisfied an offence against the Act has been committed; s.194(5). I consider the standard of proof to be achieved is the civil standard; Helton v. Allen (1946) 63 C.L.R. 691, Briginshaw v.Briginshaw (1938) 60 C.L.R. 336, Rejfek v. McElroy (1965) 112 C.L.R. 517. But by any standard of legal proof the evidence established the commission of an offence against the Act by the First Respondent.” In Hawkins & Izzard v. Permarig Pty Ltd & Brisbane City Council (No.3) [2001] Q.P.E.L.R. 423, Judge Brabazon QC, at page 429, said: “Different submissions were made about the standard of proof. Is it beyond reasonable doubt or is it on the balance of probabilities? If it were on the balance of probabilities, then, no doubt, the Court would have to have regard to the consequences of its findings and keep in mind the Briginshaw standard. It may be noted that proceedings in the Magistrates Court are clearly criminal in nature. There may be a penalty and there may be a conviction. In this Court, the procedure adopted here, and quite rightly so, did not in any way appear to be a criminal procedure. There is no prosecution. There is no prospect of a conviction. There is no possibility here of a pecuniary penalty. In my opinion, the better view is that these are not proceedings of a criminal nature and that accordingly the standard of proof is that on the balance of probabilities. In practical terms, that may be important in other cases but is not, I think, here.” The cases favour a Briginshaw approach, in accordance with which the seriousness of the matter to be established may influence what is required for the court to feel comfortably satisfied of it. It is undoubtedly serious to find that an offence has occurred, even where there is no question of a criminal sanction being imposed. I agree with the views expressed by Judge Dodds and Judge Brabazon QC in the authorities last mentioned, but would wish to make it clear that, even applying the standard of proof beyond reasonable doubt here, the court is satisfied that offences have occurred under s.430 and s.438(2) and s.440. The same cannot be said of the -- 35 of 46 -- 36 view reached and expressed herein that it is likely further offences will occur if the court grants the applicant no relief, merely accepts undertakings offered very late, as the respondent invited it to do, as to which even the ordinary civil standard is difficult to apply – the court is making its best assessment of what will happen in the future. Particulate Emissions and Dust [42] The applicant called four witnesses in respect of what might be called visible emissions, Mrs. Hartley, Ms. Graham, Ms. Grant and Mr. Watson. Three of them tendered exhibits which I accept show deposits on a patio table, on cutlery and/or crockery left out to drain after washing up, and on vegetation. I accept what Ms Graham said regarding material finding its way to her cat’s water dish. In addition, there was evidence of the applicant and her mother which would support the proposition that they noticed dust, grit, and the like. Mrs Crowther is often disturbed by hot blasts of air when she goes outside. While there may be a chance that the annoying materials emanate from the TAFE, I cannot feel satisfied that they do, bearing in mind the onus of proof that has to be met. None of the material included in the exhibits or spoken about has been identified. Other potential culprits than TAFE as generators of it spring readily to mind, such as road and rail traffic. [43] Demonstrations that occurred on the inspection and the inspection generally suggested to me that the systems in place to capture particulates, and especially to do with woodwork, are much more likely to be implemented and implemented effectively than the measures attempted to be applied in respect of odour emissions. Dr. Miller’s evidence for the respondent was not challenged by any other expert. He did not expect that any particulate emissions from the TAFE would be visible. -- 36 of 46 -- 37 Dr. Miller’s testing was, however, quite limited; his “Envirotest” report of July- August 2001 (part of Exhibit D to the applicant’s affidavit filed 19 July 2002) contains material which hardly inspires total confidence in it: “6.0 SAMPLING Ambient or ground level sampling for selected indicators of welding emissions and traffic emissions occurred at Site 1 – (-30m downwind of prevailing NE winds) and Site 2 (see Figure 2) on Thursday evening, 26 July 2001 between 5.50 pm and 8.30 pm. Monitoring equipment was established at 1.5 – 1.8m above the ground and at roadside. Sampling locations were confined to public access and affected by traffic emissions from minor peak hour flows and parking. Prevailing wind conditions were from the north-west (sic) with local swirling towards the area of Site 1. Periods of rain increased after 8.30 pm and made sampling conditions difficult.” Adequacy of Respondent’s Odour Assessments [44] It is intriguing that the respondent’s odour expert, Mr. Schulz generated similar confusion in relation to wind direction. His report, Exhibit 1 states: “2.7 DOWNWIND FIELD ODOUR ASSESSMENT The Odour Unit has developed a method based on the German standard method VDI 3882 – Olfactometry – Determination of Odour Intensity, in assessing the ground level impacts of odour emissions from multiple sources. Previous experience in ambient odour sampling and olfactometry analysis indicated that accurate and useful ambient odour concentration data was difficult to obtain using conventional techniques. Therefore, it was decided to take a more practical approach based on the field measurement of odour intensity whereby a calibrated and experienced odour specialist would traverse Park Street when the wind blew from the northwest (sic). The assessment included the presence, character and intensity of any odours in the area and recording these observations along with wind speed and direction data. Surveys were conducted at and around the times when YIT was operating potentially odorous activities, including the times when sampling was being carried out. Once the assessor determined the wind direction across the site, he moved along the street to stay in the plume likely to carry the odours -- 37 of 46 -- 38 towards the households. At each assessment location the following data was logged. Location reference position Time Average Wind direction Average Wind velocity Odour present (yes/no) Odour character / source Odour Intensity (rating 0-6) Comments The assessor generally spent between 10 and 60 minutes at each assessment location in order to gauge the effects of the odour impact. Some indication of the spread of the odour’s intensity over time is given in the results in this report. Wind velocity and direction were recorded at each location. Velocities were measured using a TSI Model 8330 Velocicheck anemometer. During gusty, highly fluctuating wind conditions, the average velocity and/or a minimum/maximum range was recorded. The anemometer used did not have a function to record an average nor give a standard deviation. The average was determined by the technician’s observations. The wind’s direction was also determined by the assessor, using a compass. Once the assessor determined the presence of an odour at the location, he characterised it by assigning an odour description to the odour. As previously mentioned, the German standard for determination of Odour Intensity (VDI 3882) was used. The standard’s ranking system is based on the following seven point intensity scale: 0 Not detectable 1 Very Weak 2 Weak 3 Distinct (Moderate) 4 Strong 5 Very Strong 6 Extremely Strong.” [45] Questioned about the significance of the wind direction indicated (p 437ff of the transcript), he took refuge in “a lack of local knowledge on our part”, and expressed confidence that his staff would have been downwind of the potential odour emitting sources under investigation (which field notes suggested was by reference to a north-easterly). -- 38 of 46 -- 39 [46] In the end, I am quite unable to find the respondent is assisted to any significant extent by the observations of others brought along on isolated occasions to attempt to verify claims of particular odours, from the standpoint of its seeking to overcome the sizeable body of evidence from people living in or using the local area. In respect of odours, I think it is fanciful to suggest other culprits than the TAFE, speaking generally. It would not be right to (and I do not) blame the TAFE for every smell noted in a resident’s log or described in evidence. I have no doubt whatever that for much the greater part, the TAFE has been the culprit. The Applicant’s Experts [47] Regarding odours, the expert evidence was given in a curious way. Only the respondent’s expert Mr. Schulz performed sampling and testing. The role of the applicant’s experts was a spoiling one, attacking the validity or usefulness of Mr. Schulz’s work, and work which had been done by others earlier. It was important that the court should not be distracted into transferring any onus of proof on to the respondent, although, doubtless with a view to the possibilities of defences indicated in the Act, the respondent did present a positive case that it was doing no environmental harm and was operating in an appropriate way. I accept the evidence of the applicant’s three experts, in particular that of Dr. Best, who has had greater involvement in the matter than the others. I would infer it has been lack of resources available to the applicant that led to Dr. Best’s role being confined. The court was grateful to him for his agreement to participate in an exercise involving the parties before the Dispute Resolution Centre, which I had thought might, even if it did not resolve the whole application, lead to an agreement about what would constitute appropriate testing of the claims about emissions from TAFE made by the applicant and her witnesses. It was heartening to hear that, contrary to what I had -- 39 of 46 -- 40 assumed when the application came on for hearing, the parties felt that the exercise involving the Dispute Resolution Centre had been fruitful. The Opinion of the Respondent’s Odour Expert [48] Mr. Schulz did not pretend there were no issues here. His report in Exhibit 1 offered the following conclusions and recommendations: “Conclusions and Recommendations On the basis of the investigations carried out during this study it has been concluded that there is a relatively low level of odour emissions from all of the metal processing and painting buildings at YIT. Not withstanding this finding, and on the basis of anecdotal evidence that, on some occasions, YIT odours are being detected in residential areas adjacent to the facility, it has been judged that the operations of the foundry activities in E-Block are most likely to be the source of the bulk of such occurrences. Of the remaining buildings under study, the activities occurring in C-Block have some potential to be detected, although evidence points to such occurrences being a result of fugitive emissions of odour rather than emissions from the exhaust stacks. The foundry emissions do not exit the building through a stack, as do the process emissions from the other buildings studied. The foundry emissions can leave the building only through the louvred walls or through open doorways, with the result that initial dispersion and dilution with surrounding air is poorer than would occur if a stack exhaust were possible. As a preliminary recommendation of measures that could be taken to reduce the level of YIT odours beyond the site boundaries, the following actions are suggested: An odour management plan should be prepared for the four buildings under study. Such a plan should include instructions for the operation and maintenance of the odour/fume extraction system. If judged to be necessary the plan should also include hardware changes designed to ensure that the extraction fans are operated at all times that classes are in progress, and that all windows and doors are closed. Given the excellent designs of the extraction systems in each of the buildings studied, it is considered that the above action would practically eliminate fugitive odour releases with potential to be detected off-site. The positive and vertical exhausting of the ventilation air in the foundry building (E-Block) should be investigated. It is likely that a mechanical ventilation system will greatly reduce the concentration of odours at ground level in Park Road and other residential areas. -- 40 of 46 -- 41 Such mechanical ventilation is routinely carried out in more odorous food and waste processing industries, including meat rendering plants. A simple and relatively inexpensive installation typically involves one or more axial flow fans, mounted directly into the roof and venting all air from the building in a vertical direction. As a preliminary indication, three fans having a total capacity of 120,000 m 3 /hr should be sufficient to ensure that the wall louvres act as a clean air supply system for the foundry, rather than a vent for potentially odorous air to Park Road. As with the extraction systems in C, D and H-Blocks, the fans in E-Block would need to be operated every time the foundry was in use. TOU would support DET should it decide to extend this current investigation before embarking on the above-recommended actions. This study has been of relatively short duration and the confirmation of the main findings could be justified before committing to capital expenditure of odour control measures.” (TOU represents the initials of Mr. Schulz’s firm, The Odour Unit.) [49] Mr. Schulz’s frankness continued during his oral evidence. He said, on his adjourned cross examination at 638: “I think I said in Court last time - I said the stacks are shorter than is desirable. They would - I would like to see them a lot taller in order to convey the air away from the source - from the stacks' openings without being impeded by the buildings that are around the stacks.” At p 640, he acknowledged that he had accepted the extraction system (of which he had a favourable impression) as it was, and not investigated its efficiency from the point of view of producing an optimum flow rate. He had not had an opportunity “to comment on what filters or other odour control technology options … should be used because we have insufficient data to determine whether or not the stacks required any treatment.” (641). He summarised his position for Ms Crowther at 655-6: “My recommendation is that a TAFE wide approach to odour impact reduction be taken at Yeronga TAFE consisting of the following elements: one, address the issue of the foundry emission calculations and find a way of either eliminating them or venting them up through a stack out into the roof and getting better dispersion; two, and certainly in conjunction with one, ensuring that a management plan be put in place there to ensure that the operations of the extraction -- 41 of 46 -- 42 systems - the operation of the extraction systems is optimized and the fugitive emission calculations are practically prevented, and, three, I would wait - the third component of that would be an assessment once those two steps have been implemented with a view to determining the extent to which there has been improvement of odour nuisance.” He clearly saw the foundry as the most concerning source of emissions but also recognised the potential for “fugitive emissions” to leave both C and D Blocks, “if the ventilation system is not operated correctly and the windows are left open.” (642). His opinion was that it was “unlikely that fugitive emissions … would cause nuisance at that distance (150 yards). They may be detectable on occasions, I’m not sure, but there is a big difference between being detectable and being a nuisance.” (651). What is Reasonable? [50] Mr. Schulz in that last sentence may come close to identifying the most important issue in the case, as to which I am comfortably satisfied by the lay witnesses that odour nuisance has been established. The respondent’s arguments depended heavily on the proposition there was no “unreasonable” interference, to the point where environmental nuisance could be established. Most of the references to reasonableness in Mr. Morzone’s helpful written outline appeared to have in mind what it might be reasonable that local residents put up with. It was submitted that those the court heard from had become “sensitised” to such an extent that their assertions about odour should not be accepted as equivalent to the reactions of ordinary people. As to most of Ms. Crowther’s witnesses, I have rejected that submission. It is by way of being cautious that I have assumed, without deciding, that it applies to her. -- 42 of 46 -- 43 [51] Mr. Morzone relied on the 35 year history of foundry operations and suggested that, for the most part, the local residents chose to move in nearby (Paragraph 5.11). This observation does not apply to the Crowther household. Of course, what local residents may reasonably expect, particularly by way of clean air, may vary, not only according to locality, but also over time. One change which I think has occurred over time, of which the Act is a part, is a heightening of community expectations of air quality, indeed, of quality of the environment generally. I feel no particular concern that the provisions of the Act which have been considered have the outcome that activities that have been going on in a similar way for decades might need to be carried out differently. We are in a new era, for which a range of new environmental offences has been established. The lawfulness of an activity in planning terms will not necessarily immunize those conducting it against prosecution under the Act, or applications under s.505. Mr. Morzone may be applying concepts of reasonableness to the TAFE’s activities, from its own point of view, without spelling it out, although in 4.2 he submits TAFE activities “do not cause dust or particulate emissions of any unreasonable amount.” Section 319 of the Act refers to persons taking “all reasonable and practicable measures to prevent or minimize (environmental harm)”. Section 431(4), set out above, refers to “all reasonable precautions” and “reasonable diligence” in language duplicated in s.433(4). There is obviously room in cases such as the present for the court to assess the reasonableness of a respondent’s conduct, from the respondent’s point of view. Such matters are doubtless taken into account when the court determines whether or not to exercise its discretion (assuming a case to exercise it is shown) by reference to the usual discretionary factors, which Mr. Morzone suggested were hardship, necessity, lack of utility, and practical inconvenience (including necessity for ongoing supervision). Mr. Morzone’s list does not specifically refer to the -- 43 of 46 -- 44 factor which causes me greatest concern, which is the undesirability of possibly closing down useful educational activities which (if it matters) are not conducted for private profit. A realistic time should be allowed for the TAFE to get its operations in order. Conclusion [52] My opinion is that relief ought to be granted. I think the applicant shows a clear case. I think it would be unfortunate for the court to send a message to her and others like her to the effect that, if there is anything that can be said in favour of a respondent proved to be causing environmental harm (including environmental nuisance), relief under the Act is likely to be refused. [53] The court has not had the opportunity to receive submissions about what orders might be made, assuming relief is appropriate. That aspect was left unresolved in Maroochy Shire Council v. Barns. Here, the circumstances are such that the respondent ought to be allowed as much time as possible to consider its situation, and what steps might feasibly be taken at the TAFE, in light of the court’s determination to do something. If there are to be changes in procedures or locations of particular activities on the TAFE site, generous lead times may be required. This will very likely be unwelcome to the applicant, but s.505 invites the court to allow an unsuccessful respondent time to get matters in order. Delay while the court considers the matter should be avoided, if possible. I am conscious that these reasons may be somewhat disorganised and plead in justification that they have been prepared in haste for reasons just indicated. -- 44 of 46 -- 45 [54] By way of indicating the general nature of the orders I think appropriate (and with a view to giving the respondent early notice), I offer the following for the parties’ consideration (it will be noted that a certain amount of invention has been resorted to in the interests of permitting the TAFE to relocate activities, if not to Salisbury, then elsewhere on its site, in the interests of the amenity of local residents): 1. Declare the court is satisfied the offences have been committed by odour emissions from the Yeronga Institute of TAFE against s.430, s.438(2) and s.440 of the Environmental Protection Act 1994 and further that an offence or offences against the Act will be committed unless restrained. 2. Order that the respondent be restrained under s.505 of the Act from: (a) breaching conditions A6 or B6 in Integrated Authority No. SR 2345 issued under s.311 of the Act in respect of foundry (including blacksmithing) activities at the Yeronga Institute of TAFE site (Lot 374) by permitting any release from Lot 374 of any contaminant or contaminants which causes noxious or offensive odour outside Lot 374 or would be likely to cause an environmental nuisance beyond the boundaries of Lot 374; (b) permitting any release from Lot 374 of noxious or offensive odour emissions produced in the activities of welding, cutting, machining or grinding metal and having potential to cause “environmental nuisance” or “environmental harm” as defined in the Act; 3. Order that the respondent be restrained: (a) after January 2004, from conducting foundry or blacksmithing operations or having any outlet for related odourous emissions within 100 metres of Park Road, Yeronga; and -- 45 of 46 -- 46 (b) after January 2005, from conducting any processes of welding, cutting, machining or grinding of metal which produce particulate or odour emissions or having any outlet for those emissions within 100 metres of Park Road, Yeronga unless what is done or exists occurs strictly in accordance with defined measures whose content and efficacy once established on actual implementation is such as to satisfy Dr. Peter Best and Mr. Terry Schulz (or failing that, the court) that such measures provide reasonable assurance that (1) no environmental harm or environmental nuisance will be caused by emissions west of Park Road and that (2) no breach of conditions relating to release of airborne contaminants in any applicable environmental authority as defined in the Act will occur. 4. Liberty to apply. (I appreciate that arrangements envisaged above may place a school in the receiving range for emissions – if (as I find) the applicant’s case is correct, rather than the respondent’s. However, the court can feel confident that the relevant authorities would show greater solicitude for the well-being and amenity of a large group of schoolchildren, although they are about for only 30 hours or so per week, than they have shown for local residents who are there all the time. I hope the court’s decision will bring home to them that, to date, no doubt in good faith, they have proceeded on unrealistic assumptions about what it is reasonable to expect the local residents to tolerate.) -- 46 of 46 --