Chief Executive of the Department of Environment & Science v; Nugrow Ipswich Pty Ltd

[2024] QPEC 8

PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	Chief Executive of the Department of Environment & Science v Nugrow Ipswich Pty Ltd [2024] QPEC 8
PARTIES:	CHIEF EXECUTIVE OF THE DEPARTMENT OF ENVIRONMENT AND SCIENCE (applicant)
v
NUGROW IPSWICH PTY LTD (ACN 124 571 875) (respondent)
FILE NO/S:	3527 of 2023
DIVISION:	Planning and Environment
PROCEEDING:	Application for interim orders
ORIGINATING  COURT:	Planning and Environment Court, Brisbane
DELIVERED ON:	19 March 2024
DELIVERED AT:	Brisbane
HEARING DATE:	31 January and 1 February 2024
JUDGE:	Williamson KC DCJ
ORDER:	1.  The application for orders pending the determination of the proceeding under s 506(2) of the Environmental Protection Act 1994 is dismissed.
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPLICATION – where application for interim orders under s 506 of the Environmental Protection Act 1994 – where applicant offered no undertaking as to damages – where granting the interim relief would likely frustrate the final relief sought in the proceeding – where the respondent would cease trading in the event interim relief was granted – whether the balance of convenience favoured granting the interim relief sought.
LEGISLATION:	Environmental Protection Act 1994 ss 3, 9, 15, 330, 344, 349, 350, 440, 505 and 506.
COUNSEL:	Mr S Keim SC with Mr N Loos and Ms G Kiss of Counsel for the applicant Mr M Batty with Ms J Bowness of Counsel for the respondent
SOLICITORS:	Department of Environment & Science - Legal team for the applicant McCullough Robertson for the respondent

Introduction

1. The Chief Executive seeks orders under s 506(2) of the Environmental Protection Act 1994 (the EP Act). Orders of this kind, if granted, are interim in nature and made pending the determination of a proceeding that seeks relief under s 505(2) of the EP Act. The Originating application filed by the Chief Executive on 1 December 2023 is such a proceeding.

2. The Chief Executive pressed for an urgent hearing of its application for interim orders. This was accommodated by the Court at the first available opportunity. The application was listed for a two day hearing.

3. The interim orders sought are attached to these reasons and marked Annexure A.

4. The respondent (Nugrow) opposed the application.

5. For the reasons that follow, I am not satisfied, as is required by s 506(2) of the EP Act, it would be proper to make the orders set out in Annexure A.

Background

1. Nugrow operates a large waste recycling and compost manufacturing facility at Swanbank, Ipswich. As the facility name suggests, the operation involves Nugrow taking receipt of waste, which is then processed and treated. This occurs pursuant to a suite of approvals. They include, among other things, an amended development approval granted by the Court on 3 April 2019 (the development approval) and an Environmental Authority (the EA). Condition 1-A1 of the EA states:

   “Odours or airborne contaminants must not cause environmental
   nuisance to any sensitive place or commercial place.”

2. The land uses surrounding Nugrow’s facility, save for two exceptions, are heavy industrial uses. The uses include a power station, landfill, composting and other waste recycling operations. This is consistent with the strategic designation of the land and surrounding area. The two exceptions are areas of residential development located to the west and east. The former is an area of Ripley, located 1.4 kilometres from the western boundary of the facility. The latter is an area of Redbank Plains, located about 1.5 kilometres from the eastern boundary of the facility.

3. It is uncontroversial the waste accepted by Nugrow has the potential to give rise to adverse odour impacts on sensitive receptors, which includes residential uses. Complaints about odour nuisance from the facility can be dated back as far as 2001. The complaints have increased in regularity, coincident with the march of residential development towards the use.

4. Nugrow accepts that odour impacts from its facility had an adverse impact on residential uses in late 2018 and early 2019. The impact exceeded that authorised by the EA. The admission against interest to this effect can be found in a program notice submitted by Nugrow to the Department of Environment and Science (the DES) in May 2019.

5. On 7 May 2019, Nugrow’s solicitor submitted a program notice to the DES under s 350 of the EP Act. Subsection (1) of this provision relevantly states:

   “A person may give the administering authority a notice (the program

   notice) about an act or omission (the relevant event) that–

(a)	has caused or threatened environmental harm in the carrying out of an activity by the person; and
(b)	is lawful apart from this Act.”

1. Section 350(2) of the EP Act prescribes mandatory requirements for the program notice. The notice must, among other things, be in the approved form, give details of the ‘relevant event’, and declare an intention to apply for a transitional environmental program.

2. In the approved form submitted to the DES, Nugrow gave the following details about the ‘relevant event’:

   “DATE OF THE RELEVANT EVENT

   1 November 2018, 14 November 2018, 20 November 2018, 23 November 2018, 29 January 2019, 30 January 2019, 5 February 2019 and 8 February 2019, and continuing.

   ...
   LOCATION OF RELEVANT EVENT...

   Lot 3 on SP 289972 (site), Swanbank Industrial Area, Redbank Plains, Raceview, Flinders View, Ripley and South Ripley.” (emphasis added)

3. Section 4 of the approved form required Nugrow to give ‘details of the potential or actual environmental harm caused’. The notice submitted by Nugrow stated:

   “Actual odour nuisance to residents in nearby residential areas in non-compliance with environmental authority condition 1-A1 as a result of the changed onsite composting methodology and increased anaerobic conditions within the compost windrows.” (emphasis added)

4. Section 5 of the approved form for the program notice contains a declaration. The form submitted by Nugrow was signed by Mr Peter Thompson, Chief Strategy Officer. By signing the form, Mr Thompson declared, among other things, that a transitional environmental program would be prepared and submitted to the DES.

5. Section 330(1) of the EP Act identifies the purpose of a transitional environmental program. The provision states, in part:

   “A transitional environmental program is a specific program that, when complied with, achieves compliance with this Act for the activity to which it relates by doing 1 or more of the following –

(a) reducing environmental harm caused by the activity; and

…

(c)	detailing the transition of the activity to comply with -
(i) a condition of an environmental authority for the activity; or…”

1. On 22 August 2019, an application was made on behalf of Nugrow to the DES for a transitional environmental program. The application was refused on 26 September 2019. The refusal was internally reviewed and appealed by Nugrow to this Court. On 4 September 2020, the Court approved a draft transitional environmental program, subject to conditions. The program was amended in December 2021. Section 5.2(a) of the amended program required the construction of ‘purpose-built compost tunnels… with concrete hardstand between for vehicle access’.

2. Section 349 of the EP Act required Nugrow to comply with the EP Act at the completion of the amended transitional environmental program. Here, the program finish date was 4 September 2023. It is not suggested Nugrow achieved compliance with the EP Act by this date. This is no doubt due, in substantial part, to an application it made to the DES on 30 July 2022. It was an application under s 344 of the EP Act to amend the transitional environmental program. An amendment sought involved abandoning concrete in-vessel tunnels in favour of a ‘GORE’ composting system. The application to amend was refused by the DES on 5 December 2022. Central to the refusal is an unwillingness to accept the alternative design proposed by Nugrow for in-vessel composting.

3. The decision to refuse the application to amend was the subject of an internal review and the subject of an appeal to this Court. The Chief Executive resists the appeal. Its progress has stalled because the Chief Executive has taken technical points about the Court’s power to vary the amended transitional environmental program, which expired on 4 September 2023. The proceeding is presently awaiting hearing in the Court of Appeal in relation to an unsuccessful application brought on behalf of the Chief Executive. That application does not resolve any issue with respect to the design of the composting system. Nor will it resolve adverse odour issues for nearby residential uses. Rather, if successful, the Chief Executive’s application would bring Nugrow’s appeal to an early end on technical grounds.

4. About two weeks before the amended transitional environmental program ended, DES retained a consultant to conduct a Field Ambient Odour Assessment Investigation Study (the odour study). A study area was identified, which included Nugrow’s facility and nearby residential uses. The study consisted of field odour assessments in 4 phases. Phase 0 was completed on 30 August 2023, for a period of about 4 hours. Phase 1 comprised five surveys over a three week period between 31 August 2023 and 21 September 2023. Phase 1A comprised site visits to facilities that were identified in phase 1 as having the potential to contribute to off-site odour. This included Nugrow’s facility. The site visits were carried out on 21 and 22 September 2023. Phase 2 comprised five surveys completed over a two week period between 3 October 2023 and 12 October 2023.

5. The results of the odour study are set out in a report provided to the DES and exhibited to the affidavit of Mr Assal. The material is detailed and highly technical. In summary, the material reflects the following findings: (1) frequent odour characters were detectable in the study area; (2) frequent odour characters were detectable and attributable to Nugrow and described as ‘pungent, putrid, compost’, ‘pungent, putrid, garbage’ and ‘faecal’; (3) off-site odours from the Nugrow facility were detectable more than 5 kilometres from the source; and (4) Nugrow’s operation will continue to lead to high to extreme odour impact risks if modifications and upgrades are not adopted.

6. Against the background of the odour study, Mr Assal made a number of recommendations directed towards the mitigation of odour impacts from Nugrow’s facility. The recommendations have been taken up, in part, by the Chief Executive. They are reflected in the draft order, which is marked Annexure A. One recommended action requires an order from this Court. It involves restraining Nugrow from accepting new waste of a particular kind that it could lawfully receive under the terms of its EA.

7. There is no evidence about odour impacts relied upon by the Chief Executive that post-dates the odour study.

8. On 1 December 2023, the Chief Executive commenced proceedings in this Court, by way of Originating application, seeking an order under s 505(1) of the EP Act. The purpose of the order is to require Nugrow to remedy unlawful environmental nuisance. The final relief sought in the Originating application is in the following terms:

   “A restraint order pursuant to section 505(5) of the EP Act as follows: That the Respondent construct and utilise an approved (including any necessary approvals from the Ipswich City Council and the Applicant), fully operational in-vessel composting system capable of handling all of the Respondent’s composting operations at the Respondent’s waste recycling and compost manufacturing facility at Lot 3 Unnamed Road, Swanbank (more particularly described as Lot 3 on SP 289972).”

9. In an affidavit before the Court, Nugrow’s Chief Strategy Officer affirmed that: (1) ‘Nugrow is open to the solution sought in paragraph 2 of the Originating Application’; and (2) ‘Nugrow has been pursuing an in-vessel ultimate solution…for a number of years and remains committed to this proposal’. This evidence, read with paragraph 2 of the Originating application begs this question: what is the dispute between the parties? Apart from resisting an allegation that an offence has been committed, the real dispute between the parties, as Mr Batty confirmed, has two parts: (1) whether the GORE system proposed by Nugrow is an acceptable alternative composting system; and (2) what time should be allowed to permit any alternative composting system to be constructed and commissioned by Nugrow. For reasons I will turn to in due course, the relief sought by the Chief Executive on an interim basis would frustrate the resolution of these issues.

10. A review of the grounds set out in the Originating application reveals three things.

11. First, the Chief Executive’s case for final relief is founded on an alleged breach of s 440(2) of the EP Act, caused by odour nuisance. The breach is alleged to have occurred during the period 1 January to 30 November 2023. This was amended during oral argument before me to the period 31 August to 12 October 2023.

12. Section 440(2) of the EP Act is in the following terms:

    “440 Offence of causing environmental nuisance

    …

    (2) A person must not unlawfully cause an environmental

    nuisance.
    Maximum penalty – 600 penalty units.”

13. The phrase ‘environmental nuisance’ is defined in the EP Act by reference to s 15, which states, in part:

    “15 Environmental nuisance

    Environmental nuisance is unreasonable interference or likely interference with an environmental value caused by –

    (a) …, odour,…;

14. The term ‘environmental value’ is defined in the EP Act by reference to s 9, which provides:

    “9 Environmental value

    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.”

1. The alleged odour nuisance is said to have occurred at specific locations particularised in a document titled ‘List of Acts of unlawfully causing environmental nuisance’. The particulars are drawn from, among other things, the odour study. Nugrow is alleged to be solely responsible for the alleged nuisance. Paragraph 107 of the Originating application puts in issue the prospect of future offences, namely environmental nuisance caused by odour. It is said that future offences will be committed unless interim, and final, relief is granted.

2. As to the cause of the odour nuisance, paragraph 106 of the Chief Executive’s Originating application alleges:

   “The Applicant’s composting operations on the Site, between 1 January and 30 November 2023, have been conducted in a manner calculated to produce unpleasant odours including the use of large scale open unenclosed windrows; use of oversized windrows; use of poorly drained windrows; use of windrows located on undulating and, hence, inaccessible ground; poorly managed leachate including a failure to drain and collect leachate from the areas where the windrows are located; an inability to use specialised equipment to rotate the windrows, effectively, and a resulting failure to avoid largescale anaerobic composting processes.”

3. The Chief Executive’s Originating application also seeks interim orders. The orders are different to that contained in Annexure A. The relief set out in Annexure A, if granted, would require Nugrow, pending determination of the Originating application, to: (1) cease receiving, processing and using specified waste streams in the conduct of its composting facility; and (2) commence reducing the volume of existing material at the facility deemed to be odorous or high-risk feedstock. An order is also sought that would require Nugrow to furnish the Court with evidence demonstrating compliance with interim orders.

4. As I have already said, Nugrow opposes the application for interim orders.

The issues to be determined

1. The Court’s power to grant interim relief in this proceeding is to be found in s 506(2) of the EP Act. This provision states:

   “On the person’s application, the Court may make an order of a kind mentioned in section 505 pending determination of the proceeding if it is satisfied it would be proper to make the order.”

2. An order of the kind mentioned in s 505 of the EP Act is one that remedies or restrains an offence, or anticipated offence, against the EP Act. Section 505(6) makes clear that an order of the kind mentioned in s 505 may direct a respondent to stop an activity or do anything required to comply with, or to cease a contravention of, the EP Act. The order may also be in the terms the Court considers appropriate to secure compliance with the EP Act.

3. The grant of power for making orders pending determination of a proceeding brought under s 505 is expressed in broad terms and discretionary in nature. The power is granted subject to one express requirement; the Court must be satisfied it would be proper to make such an order.

4. It was common ground that, in deciding whether it would be proper to make the orders sought in Annexure A, it was appropriate to have regard to the principles applicable to the grant of an interlocutory injunction. I agree. The relevant principles, which are well established, call for two questions to be examined, namely whether the applicant for interim orders has demonstrated:

(a)	there is a serious question to be tried; and
(b)	the balance of convenience favours the interim relief being granted.

1. While these considerations will play a large part in guiding the exercise of the discretion, they are not, in my view, the only matters to be considered in the exercise of discretion under s 506(2) of the EP Act. The exercise of the discretion ought properly take into account s 506, along with the subject matter, scope and purpose of the EP Act.

2. A useful starting point is s 3 of the EP Act. This provision identifies the object of the legislation. The stated object admits of a balance. That is, it speaks of striking a balance between the environment on the one hand, and development on the other, in a particular way. The balance is to occur in a way that maintains the ecological processes on which life depends. Section 3 of the EP Act relevantly provides:

   “The object of this Act is to protect Queensland’s environment while allowing for development that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends (ecologically sustainable development).”

3. The object of the EP Act is to be achieved by an integrated management program consistent with ecologically sustainable development. The integrated management program, as is evidenced by the EP Act itself, includes a range of measures to protect environmental values from sources of environmental harm. A mechanism by which environmental values are protected is through the administration of a scheme of environmental authorities. Here, such an authority has been issued authorising Nugrow to receive streams of waste. It can be observed that the Chief Executive does not seek orders under ss 505 or 506 of the EP Act on the footing there has been, or will be a breach of the EA. The Chief Executive’s case is founded on s 440(2) of the EP Act.

Is there a serious question to be tried?

1. For the Originating application to succeed, the Chief Executive bears the onus of proving at least one of two things stated in s 505(5) of the EP Act, namely that:

(a)	an offence against the EP Act has been committed; or
(b)	an offence against the EP Act will be committed unless restrained.

1. The Originating application pleads both limbs in pursuit of final relief.

2. The power to grant final relief under s 505(5) of the EP Act is discretionary in nature and directed towards remedying or restraining an offence (actual or prospective) against the EP Act. The discretionary nature of the relief means that orders may not necessarily follow where an offence, or anticipated offence, is identified. The Court still needs to be satisfied in the exercise of the discretion that it is appropriate to make orders that remedy or restrain an offence, be it one that has been committed or is anticipated.

1. To establish there is a serious question to be tried, reliance was placed on the evidence of Mr Assal, DES officers and numerous lay witnesses. The body of evidence is voluminous and relied on to demonstrate, by way of a circumstantial case, that an offence against the EP Act has been committed; the offence being one of unlawful environmental nuisance under s 440(2).

2. Given the nature of this application, it is unnecessary for me to make any findings as to whether the evidence relied upon is accepted, accepted in part, or rejected. That being said, I have some difficulty accepting the evidence establishes a sufficient foundation to draw an inference (to the requisite standard) that: (1) Nugrow is solely responsible for the alleged odour impacts; and (2) an offence against s 440(2) of the EP Act has been committed by Nugrow during the period alleged, namely 31 August to 12 October 2023.

3. Mr Batty and Ms Bowness who appeared for Nugrow were critical of the Chief Executive’s evidence, particularly the evidence of Mr Assal. Many submissions were made to the effect that this evidence is unreliable and should not, in fact, be acted upon. After reviewing Mr Assal’s evidence, the submissions made in this regard were not without force. That said, however, it was conceded in oral argument there is a serious question to be tried in this proceeding (T1-32, L 25 – 26). This concession, in my view, was a sensible one.

4. I am satisfied the evidence establishes there is a serious question to be tried. All of the evidence, including that relied upon by Nugrow, establishes a prima facie case; there is a genuine risk that an offence against the EP Act will be committed unless restrained. The offence is unlawful environmental nuisance.

5. In simple terms, there is little doubt that the management of Nugrow’s facility presents considerable difficulty in terms of odour impacts. The level of difficulty has increased over time as residential development has marched towards the use. The history traversed in paragraphs [6] to [23] reveals that Nugrow has expressly admitted in the past, and through its failure to complete transitional environmental programs, that odour issues are a genuine issue for the use and have not been brought into compliance with the EP Act. The lack of compliance is not without adverse impact. The lay witness statements comfortably establish that the risk of environmental nuisance from a facility such as that operated by Nugrow is real and adverse, particularly for residential uses located in Redbank Plains and Ripley.

6. I am satisfied there is a serious question to be tried. Further, the Chief Executive has demonstrated that there is sufficient likelihood of success for at least one issue to be tried, namely whether an offence against the EP Act will be committed unless restrained.

7. I will now turn to consider the balance of convenience.

Balance of convenience

1. Paragraph [108] of the Originating application pleads a number of considerations that are relied upon by the Chief Executive in respect to the balance of convenience. It is in the following terms:

   “[108] The following matters support the exercise of the Court’s discretion to make the interim enforcement and restraint orders sought:

(a)	the breaches of the EP Act have had a serious, negative, impact on the public;
(b)	some instances of the breaches of the EP Act were experienced outside the Facility as being particularly revolting;
(c)	similar breaches of the EP Act are ongoing or likely to be ongoing;
(d)	those ongoing breaches of the EP Act are having, and will continue to have, a serious, negative, impact on the public;
(e)	the breaches of the EP Act are not inadvertent or technical;
(f)	the Respondent’s operations at the Facility have been (and are) for private gain;
(g)	the Respondent has been (and is) aware that its operations at the Facility cause negative odour impacts on the public;
(h)	the Respondent has taken insufficient steps to address odour emanating from the Facility;

(i)          the Respondent has been (and is) not complying with the EA; and

(j) the Respondent was not complying with the Transitional Environmental Program for the EA (dated 17 December 2021), until that TEP finished on 4 September 2023.

1. Subject to some qualifications that I will deal with shortly, the discretion to grant interim relief will be exercised on the footing that the evidence establishes each of the above considerations save for subparagraph (h). I accept that these considerations support granting the interim relief sought.

2. The qualifications to this are as follows.

3. Subparagraphs (a) to (e) assume there is sufficient evidence to prove that a breach of s 440(2) of the EP Act has been committed. While it was unnecessary for me to dwell on this particular point in any detail, for reasons given above, I have misgivings that this was established, on a prima facie basis, on the evidence. The serious question to be tried, in my view, is one relating to the prospect of future offences that may be committed against s 440(2) of the EP Act absent restraint. For the purpose of determining this application, subparagraphs (a) to (e) are accepted but only on the basis they relate to offences that will be committed unless restrained.

4. Subparagraph (h) asserts, in effect, that Nugrow has taken insufficient steps to address odour emanating from the facility. This allegation was made in reliance upon the evidence that existed up to 31 November 2023. Evidence, which is relied upon by Nugrow and post-dates 31 November 2023, establishes that interim steps have been taken to address odour emanating from the facility. The steps seek to address the matters pleaded in paragraph [106] of the Originating application. Whether the steps have been successful is yet to be seen.

5. I accept subparagraph (i), but have assumed it is advanced on a limited basis, namely on the finding of non-compliance with condition 1-A1 of the EA.

6. With the above qualifications in mind, I am satisfied the material establishes there are matters of significant weight that support granting the interim orders sought. This is so once it is appreciated that:

(a)	the impacts of odour from the facility on residential uses have been significant, and will remain so unless Nugrow addresses shortcomings in the operation of its facility;
(b)	Nugrow’s operations are for financial gain and have been ongoing for many years – those operations have failed to address odour impacts on residential uses; and
(c)	the transitional environmental programs, and application to amend those documents, contain multiple admissions against Nugrow’s interest – the admissions establish that there have been odour impacts on residential uses, which have been serious and adversely impacted on amenity.

1. Against this, it was submitted by Nugrow there are eleven matters that indicate the balance of convenience favours refusing the application for interim relief. In my view, only three matters raised attract sufficient weight to impact on the balancing exercise at hand.

2. First, it was pointed out that the orders sought by the Chief Executive, if granted, would require Nugrow to cease receiving and processing waste that it is otherwise able to do lawfully having regard to the EA and the development approval. I accept this submission. To grant a restraining order in such circumstances would, in my view, be unusual. This is particularly so where an order restraining Nugrow from receiving and processing the waste would, on the balance of probabilities, lead to significant financial distress. In this regard, it was submitted by Mr Batty and Ms Bowness:

   “…There is evidence of a very severe loss being suffered by the Respondent if the orders are made, such that it will not be financially viable and be required to cease operating. This effect will flow on to the entire NuGrow Group of companies. The restraint orders would be financially crippling in circumstances where the “Listed Wastes” the Respondent would be prevented from accepting make up 47.9% of its intake by volume, and 94.6% of intake by volume if local government derived green waste/Fogo (being the subsidised waste streams) are removed from the calculation.”

3. I am satisfied for the purposes of this interim application that the evidence cited in support of the above submission makes good on this point. Further, the evidence establishes that Nugrow would, on the balance of probabilities, cease to operate viably one month after an order of the kind sought by the Chief Executive was made.

4. The orders sought by the Chief Executive in Annexure A are likely to lead to Nugrow ceasing operation. That is not without consequence for the Originating application. This would have the effect of frustrating the final relief sought, contrary to the Chief Executive’s position overall. As I understood the Chief Executive’s position, there is no opposition to Nugrow continuing to operate. This is understandable given the importance of its facility to the management of particular waste streams for South- east Queensland.

5. Second, it was pointed out that the Chief Executive offered no undertaking for damages in support of the relief sought. This is correct. Mr Keim SC confirmed no undertaking as to damages was offered.

6. The absence of an undertaking is not decisive. It is, however, a relevant consideration. This is particularly so, in my view, given paragraphs [60] and [61].

7. Third, by reference to the evidence of Mr Thompson, it was submitted that Nugrow is committed to implementing further interim, and final, measures to manage the odour impact of its facilities. I accept this submission. It is made out on the evidence before the Court. Whether the interim measures are, or will be successful in terms of odour management, is a matter that will require further investigation and monitoring.

8. In relation to any interim steps, Nugrow submits it is prepared to implement further interim measures that are supported by Mr Zambelli. He is a waste industry expert. It is accepted that the recommended measures could be implemented pending the determination of the proceeding. There is no reason to doubt Nugrow’s commitment in this regard.

9. Where does the balance of convenience lie?

10. Whilst the evidence establishes a strong basis to assume, for present purposes, that there has been, and will likely be, significant odour impacts from Nugrow’s facility for residential communities, I am not satisfied the balance of convenience favours granting the interim relief sought by the Chief Executive.

11. This is so for three reasons.

12. First, the interim relief, if granted, has the very real potential to frustrate the final relief sought by the Chief Executive. Mr Keim SC did not seek to disabuse me of this contention in oral submissions.

13. Second, the interim relief, if granted, is likely to lead to significant financial distress for Nugrow, causing it to cease operations. This, in conjunction with the absence of an undertaking as to damages, is reflective of interim orders that represent a step too far. That is particularly so given the evidence admits of the prospect that interim measures could be deployed by Nugrow to address odour impacts. The interim measures are set out in Mr Zambelli’s affidavit and Mr Assal’s affidavit. I was not persuaded that these interim measures, which stop short of requiring the facility to cease receiving waste, would be unsuccessful while the proceeding is waiting final determination.

14. Third, the proceeding can be allocated expedited hearing dates. Hearing dates are available in May 2024. The benefit of an expedited hearing is that it would allow the parties to work towards resolving the key issues in dispute, which are identified in paragraph [24]. Interim orders would not achieve a resolution of these issues.

15. For these reasons, I am not satisfied the balance of convenience favours granting the relief sought by the Chief Executive in the form set out in Annexure A.

16. Further, it is my view that the above considerations also suggest it would not be proper to make the orders sought to remedy or restrain an anticipated offence against the Act.

Disposition of the application for interim relief

1. Section 506(2) empowers the Court to make orders pending the determination of a proceeding that seeks relief under s 505(5) of the EP Act. Before granting interim orders, section 506(2) requires the Court to be satisfied it would be proper to do so. I am not satisfied it would be proper to make the interim orders sought by the Chief Executive here, which are set out in Annexure A.

2. The application for orders under s 506(2) of the EP Act will be dismissed.