Cantarella Bros Pty Ltd v City of Ryde Council

[2003] NSWLEC 388

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Land and Environment Court

of New South Wales

CITATION:	Cantarella Bros Pty Ltd v City of Ryde Council [2003] NSWLEC 388
PARTIES:	Cantarella Bros Pty Ltd (Appl) City of Ryde Council (Resp)
FILE NUMBER(S):	10905 of 2003
CORAM:	McClellan CJ
KEY ISSUES:	Environmental Offences :- Environment protection notice Prevention notice Validity of notice issued Notice directing preparation of odour impact assessment report Whether s 96 Protection of the Environment Operations Act 1997 allows for a notice requiring person to disclose information as to current environmental performance of premises Ambiguity as to date of operation and time when action required by notice Whether council may vary notice once appeal lodged
LEGISLATION CITED:	Protection of the Environment Operations Act 1997
CASES CITED:
DATES OF HEARING:	10 November 2003
EX TEMPORE JUDGMENT DATE :	11/10/2003
LEGAL REPRESENTATIVES:	W O'Rourke (Appl) Deacons (Sol - Appl) A Hawkes (Resp) Pike Pike & Fenwick (Sol - Resp)

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10905/03

McCLELLAN J

MONDAY 10 NOVEMBER 2003

CANTARELLA BROS PTY LIMITED

Applicant
v

RYDE CITY COUNCIL

Respondent

Judgment

Introduction

1 HIS HONOUR: This matter concerns questions of law arising in class 1 proceedings. The applicant operates a business which involves the roasting of coffee beans at premises known as 4 Frank Street, Ryde. Apparently the business has been conducted on those premises for many years. There have been problems in the past, with the consequence that in recent years the premises have been significantly upgraded and pollution control devices incorporated with the intention of providing satisfactory environmental controls on the operation.

2 As I understand the position, the council received a complaint that there was a smell of strong coffee and burnt coffee type odours being emitted from the premises. Following that complaint the council determined to issue a notice pursuant to s 96 of the Protection of the Environment Operations Act 1997 in respect of the premises.

3 The notice included a direction which was in the following terms.

“Ryde City Council directs Cantarella Bros Pty Limited to take the following action within thirty days from the date of this notice:
1. Submit to council an odour impact assessment report prepared by an appropriately qualified environmental consultant in accordance with the publication entitled “Approved methods and guidance for the modelling of air pollutants in New South Wales” (EPA, 2001).”

4 The notice identified that it was issued pursuant to s 96 and it was an offence not to comply with it. The notice continued, saying:

“However, this notice does not begin to operate immediately, and you may appeal against the notice.
At the end of this notice there is information about when the notice begins to operate, the penalty for not complying with it, and how you can appeal against the notice.”

5 The relevant information included the following:

“When this notice begins to operate.
This notice does not operate:
(a) until the twenty-one day appeal period has expired without you lodging an appeal, and
(b) if you do lodge an appeal, until the Land and Environment Court confirms the notice or you withdraw the appeal.”

6 The applicant appealed to this Court and raised two preliminary questions of law. They are as follows:

1. Whether the prevention notice dated 17 July 2003 is valid. In particular it is submitted that:

(a) The notice is not a proper notice contemplated and authorised by s 96(2) of the Protection of the Environment Operations Act 1997 ; and
(b) The notice fails to allow a period of twenty-one days before the notice takes effect.

7 After the appeal was lodged, the council determined to vary the notice. That variation was communicated by letter dated 6 November 2003 which says as follows:

“Pursuant to s 110 of the Protection of the Environment Operations Act 1997 , the prevention notice issued under s 96 of the Protection of the Environment Operations Act 1997 on 17 July 2003 is hereby varied as follows:
(1) The time for complying with the notice is extended to sixty days from the date of commencement of the notice,
(2) The title of the publication referred to in the notice is modified to read in full “Approved methods and guidance for the modelling and assessment of air pollutants in New South Wales” (EPA, 2001).”

8 As a consequence of the amendment, the applicant raises a further question. That question is whether or not once an appeal has been lodged it is within the power of the council to issue a variation of the notice the subject of the appeal.

9 The matter has been argued before me this morning. In the course of that argument the difficulties in relation to the time provided in the notice have been discussed, including the potential ambiguity which flows from the fact that the notice says that action is to be taken within thirty days from the date of this notice, although the notice says it does not begin to operate immediately. However, the parties were not able to advance their arguments with the assistance of any authority in relation to notices which are ambiguous on their face.

10 I have indicated to the parties that before I proceeded to determine questions which might arise from the time for compliance provided by the notice and questions of the power to vary, I would need the assistance of any authority. It seems to me without myself having had the opportunity to consider decisions which may be of assistance, that where a notice provides for a time period in which work is to be undertaken after which criminal sanctions operate, care needs to be exercised in ensuring that the time limit is accurately stated and free from ambiguity. However, the matter will have to be considered further on a later occasion if that be necessary.

11 With respect to the first question, agreed to be one of greater substance, the applicant submits that because the notice is confined to a direction that an odour impact assessment report be prepared, it is not a notice within power under s 96 of the Act. Section 96 is in the following terms:

“96 Preventive action
(1) Application of section
This section applies when the appropriate regulatory authority reasonably suspects that an activity has been or is carried on in an environmentally unsatisfactory manner at any premises or by any person (otherwise than at premises)
(2) Prevention notices
The appropriate regulatory authority may, by notice in writing, do either or both of the following:
(a) direct the occupier of the premises,
(b) direct the person carrying on the activity (whether or not at premises),
to take such action, as is specified in the notice and within such period (if any) as is specified in the notice, to ensure that the activity is carried on in future in an environmentally satisfactory manner.
(3) Examples
The action to be taken may (without limitation) include any of the following:
(a) installing, repairing, altering, replacing, maintaining or operating control equipment or other plant,
(b) modifying, or carrying out any work on, plant,
(c) ceasing to use plant or altering the way plant is used,
(d) ceasing to carry on or not commencing to carry on an activity,
(e) carrying on an activity in a particular manner,
(f) carrying on an activity only during particular times,
(g) monitoring, sampling or analysing any pollution or otherwise ascertaining the nature and extent of pollution or the risk of pollution,
(h) action with respect to the transportation, collection, reception, treatment, re-use, reprocessing, storage and disposal of any waste,
(i) preparing and carrying out a plan of action to control, prevent or minimise pollution or waste.
(4) Occupier’s duty
If the occupier who is given a notice is not the person carrying on the activity, the notice is taken to require the occupier to take all available steps to cause the action to be taken.
(5) Reports
A prevention notice may require the person to whom the notice is given to furnish reports to the appropriate regulatory authority regarding progress on carrying out the action required to be taken by the notice.”

12 The applicant emphasises s 96(3)(i) “preparing and carrying out a plan of action to control, prevent or minimise pollution or waste,” and submits that a notice which falls short of directing that some action be taken or plan prepared is not within the council’s power.

13 The council draws attention to the objects of the legislation which are set out in s 3 which provides as follows:

“(a) to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development,
(b) to provide increased opportunities for public involvement and participation in environment protection,
(c) to ensure that the community has access to relevant and meaningful information about pollution,
(d) to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following:
(i) pollution prevention and cleaner production,
(ii) the reduction to harmless levels of the discharge of substances likely to cause harm to the environment,
(iia) the elimination of harmful wastes,
(iii) the reduction in the use of materials and the re-use or recycling of materials,
(iv) the making of progressive environmental improvements, including the reduction of pollution at source,
(v) the monitoring and reporting of environmental quality on a regular basis,
(e) to rationalise, simplify and strengthen the regulatory framework for environment protection,
(f) to improve the efficiency of administration of the environment protection legislation,
(g) to assist in the achievement of the objectives of the Waste Avoidance and Resource Recovery Act 2001 .”

14 The council stresses the fact that object (d)(iv) provides for the making of progressive environmental improvements and (d)(v) provides for the monitoring and reporting of environmental quality on a regular basis. It is submitted that those objects reinforce the fundamental concept lying behind s 96, which is to ensure that regulatory authorities are empowered to take action to minimise the impacts of pollution on premises within their jurisdiction.

15 Section 96 operates in circumstances where the relevant regulatory authority, here the council, “reasonably suspects that an activity has been or is being carried on in an environmentally unsatisfactory manner” (s 96(1)). In the present case there is no issue but that the council holds the relevant suspicion. In circumstances where that suspicion is held, the council is empowered to issue prevention notices. Section 96(2) provides that the notice may require the relevant person “to take such action, as is specified in the notice and within such period (if any) as is specified in the notice,.to ensure that the activity is carried on in future in an environmentally satisfactory manner.”

16 Accordingly, s 96 will operate in circumstances where the authority has a reasonable suspicion and issues a notice which will have the purpose of ensuring that the activity is carried out in an environmentally satisfactory manner in the future. I am satisfied that one mechanism by which the regulatory authority may ensure this occurs will be to require the relevant person to disclose, following investigation, information as to the current environmental performance of the premises. It could hardly be otherwise.

17 The trigger for the section is reasonable suspicion, but whether or not action is necessary cannot depend upon mere suspicion. Whether or not action is necessary must depend upon some objective determination of the present performance of the premises. If, as the applicant suggests, the fact that the council holds a reasonable suspicion could only lead to the council directing that activity by way of a plan of action or other measures be taken, the section would have the potential to work significant injustice. The fact that the section was not intended to work in that manner is made plain by the inclusion in s 96(3)(g), as an example of action which may be taken: “monitoring, sampling or analysing any pollution or otherwise ascertaining the nature and extent of pollution or the risk of pollution.”

18 That example is entirely consistent with the requirement within the notice served by the council that “an Odour Impact Assessment report” be prepared. That report will provide the council with information which will enable it to determine whether there is a problem at the premises, ensuring that its knowledge advances beyond that of reasonable suspicion. The report may, as the applicant suggests in the present case, confirm that there is no problem which requires attention at the premises. In that event, the object of the legislation reflected in s 96 will have been met and that reasonable suspicion will be replaced by confirmed knowledge that a problem does not exist. However, if the report reveals a problem, the council will then be in a position to take any further steps it considers appropriate to require the problem to be diminished or removed. This may require the issuing of a further notice. If that occurs then of course a right of appeal will be available to this Court.

19 Accordingly, I am satisfied that the challenge to the notice based upon the authority provided by s 96 fails.

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