Environment Protection Authority v Shoalhaven Starches Pty Ltd

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Shoalhaven Starches Pty Ltd [2006] NSWLEC 496

PARTIES:
PROSECUTOR
Environment Protection Authority
DEFENDANT
Shoalhaven Starches Pty Ltd

FILE NUMBER(S): 50011 of 2005

CORAM: Jagot J

KEY ISSUES: Prosecution :- Emission of offensive odour from premises to which licence applies - whether satisfied beyond reasonable doubt that defendant caused the emission of offensive odour

LEGISLATION CITED: Protection of the Environment Operations Act 1997 s 129, s 257, s 258, s 261

CASES CITED: Allied Interstate (Qld) Pty Limited v Barnes (1968) 118 CLR 581;
Azzopardi v The Queen (2001) 205 CLR 50;
Cala Homes (South) Limited and Others v Alfred McAlpine Homes East Limited [1995] FSR 818;
Doney v The Queen (1990) 171 CLR 207;
Dyers v The Queen (2002) 210 CLR 285;
Environment Protection Authority v All Chrome Shop Pty Ltd (1996) 89 A Crim R 474;
Fabre v Arenales and Another (1992) 27 NSWLR 437;
Henderson v Gosford Meats Pty Ltd (1986) 58 LGRA 152;
Jones v Dunkel and Another (1959) 101 CLR 298;
Mule v R (2005) 221 ALR 85;
Plomp v The Queen (1963) 110 CLR 234;
R v Dat Quoc Ho (2002) 130 A Crim R 545;
R v Dover [2001] NSWCCA 412;
R v Duncan (1981) 73 Cr App Rep 359;
R v OGD (1997) 45 NSWLR 744;
Regina v Ahmad [2002] NSWCCA 265;
Regina v LTP [2004] NSWCCA 109;
RPS v The Queen (2000) 199 CLR 620;
Shepherd v The Queen (1990) 170 CLR 573;
Weissensteiner v The Queen (1993) 178 CLR 217

DATES OF HEARING: 15/05/2006, 16/05/2006, 17/05/2006, 18/05/2006, 22/05/2006, 23/05/2006, 24/05/2006, 25/05/2006, 29/05/2006, 30/05/2006, 31/05/2006, 01/06/2006, 05/06/2006, 06/06/2006

DATE OF JUDGMENT:
09/06/2006

LEGAL REPRESENTATIVES:
PROSECUTOR
Mr S Rushton SC
SOLICITORS
Department of Environment & Conservation
DEFENDANT
Mr I Lloyd QC
SOLICITORS
Kirkby & Associates

JUDGMENT:

TABLE OF CONTENTS

Paragraphs

A. Introduction 1 - 13

B. Overview of evidence 14 - 21

C. The locality and the defendant’s premises generally 22 - 27

D. Odours smelt at defendant’s premises before 14-15 April 2004 28 - 33

E. Mr Jamieson’s evidence - odours 34 - 42

F. Mr Newman’s evidence - odours 43 - 49

G. Other evidence about odours on 14 and 15 April 2004 50 - 54

H. Expert evidence – air

55 - 75

76 - 77

I. Expert evidence – wastewater

78 - 83

84 - 86

J. Findings

87 - 88

89 – 101

102 – 110

111

112 – 116

117 – 119

120

121 – 125

126 – 153

154 – 178

179 - 180

181

K. Conclusions 182

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

6 September 2006

50011 of 2005

ENVIRONMENT PROTECTION AUTHORITY
Prosecutor

SHOALHAVEN STARCHES PTY LTD
Defendant

JUDGMENT

Jagot J:
A. Introduction

(1) The occupier of any premises at which scheduled activities are carried on under the authority conferred by a licence must not cause or permit the emission of any offensive odour from the premises to which the licence applies.

(2) It is a defence in proceedings against a person for an offence against this section if the person establishes that:

(a) the emission is identified in the relevant environment protection licence as a potentially offensive odour and the odour was emitted in accordance with the conditions of the licence directed at minimising the odour, or

(b) the only persons affected by the odour were persons engaged in the management or operation of the premises.

(3) A person who contravenes this section is guilty of an offence.

2 The particulars to the charge are that the defendant, between 14 and 15 April 2004, caused the emission of offensive odours from its premises at Bolong Road, Bomaderry, being premises at which scheduled activities were carried on (agricultural produce industries, chemical storage facilities, and/or chemical industries or works – other) under the authority conferred by environment protection licence no. 883.

offensive odour

means an odour:

(a) that, by reason of its strength, nature, duration, character or quality, or the time at which it is emitted, or any other circumstances:

(i) is harmful to (or is likely to be harmful to) a person who is outside the premises from which it is emitted, or

(ii) interferes unreasonably with (or is likely to interfere unreasonably with) the comfort or repose of a person who is outside the premises from which it is emitted, or

(b) that is of a strength, nature, duration, character or quality prescribed by the regulations or that is emitted at a time, or in other circumstances, prescribed by the regulations.

4 The particulars to the charge relied on subsections (a)(i) and (ii) of this definition.

licence means an environment protection licence.

occupier of premises means the person who has the management or control of the premises.

premises includes:

(a) a building or structure, or
(b) land or a place (whether enclosed or built on or not), or
(c) a mobile plant, vehicle, vessel or aircraft.

scheduled activity

means an activity listed in Schedule 1.

6 The activities listed in Sch 1 to the POEO Act include “agricultural produce industries”, “chemical industries or works” and “chemical storage facilities”, being the classes of activity authorised to be carried out on the defendant’s premises by its licence.

(1) In any proceedings under this Act, the occupier of premises at or from which any pollution occurs is taken to have caused the pollution, unless it is established that:

(a) the pollution was caused by another person, and

(b) the other person was not associated with the occupier at the time the pollution occurred, and

(c) the occupier took all reasonable steps to prevent the pollution.

A person is associated with the occupier for the purposes of paragraph (b) (but without limiting any other circumstances of association) if the person is an employee, agent, licensee, contractor or sub-contractor of the occupier.

(2) Subsection (1) does not prevent proceedings being taken under this Act against the person who actually caused the pollution.

(1) In any proceedings under this Act, no proof is required (until evidence is given to the contrary) of the fact that a person is, or at any relevant time was, the occupier of any premises to which the proceedings relate.

(2) In any proceedings under this Act, the holder of a licence under this Act in respect of any premises at a particular time or period is taken to be the occupier of the premises at that time or during that period.

(1) A document signed by the Director-General of the EPA or a designated officer and certifying any one or more of the matters specified in subsection (2) is admissible in any proceedings under this Act and is prima facie evidence of the matters so certified.

10 The prosecutor must establish beyond reasonable doubt that, within the period charged: (i) the defendant was the “occupier” of “premises”, (ii) at the premises, scheduled activities were carried on under the authority conferred by a licence, and (iii) the defendant caused or permitted the emission of “offensive odour” from the premises.

11 The defendant denied the third element - that it had caused or permitted the emission of offensive odour from its premises. I may address one issue with respect to the third element of the offence immediately. The defendant submitted that the prosecutor was in error if it considered that it was sufficient to establish merely that an offensive odour had been smelt on and outside the defendant’s premises. Rather, the prosecutor had to establish beyond reasonable doubt that the defendant’s premises were the source of offensive odour smelt outside those premises. I did not understand the prosecutor to have suggested to the contrary. From the particulars of the offence charged, its evidence and submissions, I understood the prosecutor to accept that it had to establish to the criminal standard of proof that the defendant’s premises were the source of offensive odour smelt outside those premises. The prosecutor did submit that it did not have to establish the reason for the emission of the offensive odours. I agree. The reason for the emission of offensive odours is not an element of the offence. Evidence relating to the reasons for the emission of offensive odours, nevertheless, is relevant. Such evidence may affect (for example) the assessment of the probability of the activities on the premises having caused offensive odour.

12 The natural and ordinary meaning of the phrase “cause or permit the emission of any offensive odour from the premises” requires that the premises generate the odour. A person does not cause or permit the emission of offensive odour from premises (s 129), and pollution does not occur at or from premises (s 257), merely because an offensive odour passes across premises. The activities carried out on the premises must cause the offensive odour. The offensive odour must also be emitted from (that is, travel outside the boundaries of) the premises ( Henderson v Gosford Meats Pty Ltd (1986) 58 LGRA 152 at 155). The prosecutor, however, need not establish the reason why the activities emitted an offensive odour.

13 Accordingly, given the offence charged and particularised, the third element of the offence required that the prosecutor establish beyond reasonable doubt that in the period charged: - (i) the effluent storage ponds on the defendant’s premises (more particularly, that part of its premises known as the environmental farm) generated odour, (ii) this odour was emitted outside the premises, and (iii) this odour was “offensive odour” as defined when perceived outside the premises.

B. Overview of evidence

14 There were six principal groups of evidence.

15 The prosecutor called evidence from Mr Jamieson and Mr Newman, primarily about: - (i) the odours they smelt on the defendant’s environmental farm prior to 15 April 2004, (ii) the investigations they carried out, and observations they made, on 15 April 2004, (iii) as part of those investigations, the odours they smelt on the defendant’s environmental farm on 15 April 2004, and (iv) as part of those investigations, the odours they smelt outside the defendant’s environmental farm on 15 April 2004. Mr Jamieson also gave evidence about odours he had smelt and investigated in the locality (outside the defendant’s premises) prior to 15 April 2004.

16 The prosecutor called evidence from thirteen people who lived or worked in the areas of Bomaderry, Nowra and Terara about odours they smelt on 14 and 15 April 2004. One resident swore an affidavit that the defendant agreed could be read into evidence. The prosecutor also called evidence from Mr Patterson, another of its authorised officers who was familiar with the defendant’s premises and the ponds, and who was in Nowra at the Council Chambers on the morning of 15 April 2004. The defendant called evidence from Mr Lawer, a truck driver who delivered sulphuric acid to the environmental farm on a regular basis, including early in the morning of 15 April 2004.

17 The defendant called evidence from Mr Thompson, the manager of its environmental farm, primarily about: - (i) the activities carried out by the defendant at its factory and on its environmental farm, including the operation and management of the effluent from the factory stored in the ponds, (ii) operations in the period leading up to 14 April 2004, (iii) observations made by Mr Thompson on 14 April 2004 (when he was present at the environmental farm, and received a complaint about odour and made certain investigations outside the premises), and on 15 April 2004 (when he received a complaint about odour when at home and made certain investigations outside the premises).

18 The prosecution called evidence from Mr Bliss (MSc (London) Public Health engineering, Honorary Visiting Fellow, School of Civil and Environmental Engineering, University of New South Wales, 40 years’ experience in wastewater management). Mr Bliss’s evidence posited various explanations for the emission of odours from the ponds on 14 and 15 April 2004, assuming that Mr Jamieson and Mr Newman had correctly identified the ponds as the source of the odours they smelt at the ponds on 15 April 2004. The defendant called evidence from Professor Greenfield (BE (1st class honours) in Chemical Engineering, University of New South Wales, B Econ, the University of Queensland, PhD (Chemical Engineering), University of New South Wales, Professor of Chemical Engineering and Senior Deputy Vice Chancellor, The University of Queensland, Order of Australia (2006) for services to in environmental management, wastewater management, biotechnology and engineering) addressing Mr Bliss’s opinions about the emission of odours from the ponds on 14 and 15 April 2004.

19 The defendant called evidence from Mr Stephenson (Dip App Sc (biochemistry and organic chemistry), Swinburne Institute of Technology, M App Sc (chemical engineering and industrial chemistry), University of New South Wales (coursework completed with distinction and final project in progress), consultant since 1983 in environmental management, including emissions to atmosphere and industrial wastewater monitoring). This evidence mainly considered the weather and wind conditions in the period immediately before and including 14 and 15 April 2004, although Mr Stephenson also gave oral evidence about the biochemistry of the wastewater streams generated by the defendant’s factory and their storage in the ponds. The prosecutor called evidence from Mr Todoroski (Bachelor of Engineering (Mechanical), University of Newcastle. Principal technical policy adviser and acting Manager Air Technical Advisory Services Unit within the Department of Environment and Conservation) in reply to Mr Stephenson’s evidence about weather and wind conditions.

20 The prosecutor and the defendant tendered various documents including: - (i) business records of the defendant about its operations and management practices generally, and about operations in the period leading up to, and including, 14 and 15 April 2004, (ii) an audit report commissioned by the defendant and prepared by Mr Stephenson’s company in June 2004 pursuant to a condition of development consent for a new stillage recovery plant constructed by the defendant, (iii) an incident report submitted by the defendant in accordance with the prosecutor’s requirements under the defendant’s licence relating to the events leading up to, and including, 14 and 15 April 2004, which report annexed a June 2004 report prepared by Mr Stephenson’s company, and (iv) various records of interview with employees of the defendant not called to give evidence in the proceedings.

21 I summarise those parts of the evidence in the proceedings necessary to understand my findings in sections C to I below. Otherwise, I deal with the evidence, as relevant to my findings, in section J below.

C. The locality and the defendant’s premises generally

22 Some matters about the locality and the defendant’s operations were not in dispute.

23 The Shoalhaven River is located between Nowra, and North Nowra and Bomaderry. The Princes Highway runs through Nowra and Bomaderry. Bolong Road intersects with the Princes Highway north of the River, and runs generally west along the river alignment to Bolong and Back Forest.

24 The defendant’s operations in the Shoalhaven area involved two premises, both of which were subject to licence 883, in force under the POEO Act. The factory premises were located on the southern side of Bolong Road, adjacent to the River, and to the east of the railway line (the Illawarra Railway). The environmental farm premises were a large area (slightly under 1000 hectares) located generally to the north of Bolong Road and east of Hannigans Lane.

25 The factory premises were used for the processing of flour, including into starch and gluten. The factory processes produced effluent or wastewater. The effluent was fermented to convert the starch and sugars into ethanol. The remaining effluent, after the ethanol distillation, was passed through screens and centrifuges to remove suspended solids. One product of this process was a solid component that was sold for stockfeed. The remaining effluent or wastewater was transferred to the environmental farm. The environmental farm area was used for two primary activities - the storage of wastewater and the irrigation of wastewater. The wastewater was stored in the ponds. The ponds were very large, and located just north of Bolong Road. They were not covered.

26 The defendant tendered an aerial photograph of the Bomaderry area with the points of the compass superimposed. The aerial photograph confirmed that the defendant’s storage ponds were north of Bolong Road (a road running basically east-west), and east of Bomaderry (on an alignment between Edwards Avenue and Cambewarra Road). The plans annexed to the s 261 certificate show that the defendant’s environmental farm extended over a very large area (just under 1000 hectares according to Mr Thompson) from Bolong Road in the south, west to the Railway Line at a point north of Edwards Avenue, and across to Broughton Creek in the east.

27 People in the locality knew and referred to the defendant as “Shoalhaven Starches”, “Starches”, and “Manildra” interchangeably.

D. Odours smelt at defendant’s premises before 14-15 April 2004

(1) Defendant’s factory: - mainly “like a brewery odour. … a sweet odour”, and sometimes a similar “yeasty, grainy type odour”. This odour had no effect on him.

(2) Irrigation activities on defendant’s environmental farm: - a fresh, grainy, yeasty odour – this odour had no effect on him. Also, where the effluent had sat on the paddock, an odour with a number of characteristics, reminiscent of human vomit and cheese – this odour had upset his stomach and made him burp. On a few occasions, an odour with a “strong dog faeces components to it” - this odour had upset his stomach and brought water to his mouth.

29 Mr Jamieson had smelt the vomit and off-cheese odour and the sharp, acidic, vomit and off-cheese odour, outside the defendant’s premises a number of times prior to 15 April 2004.

(1) Defendant’s factory: - “a grainy type odour … like a bakery or a vegemite type odour”. I infer this odour had no effect on him.

(2) Irrigation activities on defendant’s environmental farm: - “a salty characteristic to it [and] what seemed to be like an alcohol in it as well. … like a salty type odour”. This odour had no effect on him.

In chief

(1) Irrigation activities on defendant’s environmental farm: - a malty sweet type of smell. When the ground was wet after rain, “a very urinal type of smell”. If the irrigated effluent had been left for a long period of time to sit on the paddocks - a slight odour.

(2) Ponds on the defendant’s environmental farm: – a fruity, acidy, grainy type odour from the “old” effluent, and a stale, swampy-type odour from the “new” effluent. Like Mr Jamieson, Mr Newman had always smelt an odour at the ponds (I infer, the fruity, acidy, grainy type odour).

In cross-examination

(1) Irrigation activities on defendant’s environmental farm: - the “slight odour” referred to above was “unpleasant”, a “very sour smell”.

(2) On start up of irrigation: – a very strong stale odour could occur, a very acidic smell.

32 Like Mr Jamieson, Mr Thompson had smelt the unpleasant acidy, grainy type odour outside the defendant’s environmental farm on a number of occasions prior to 14 and 15 April 2004.

33 Mr Lawer said there was “always a light glucosey yeasty smell; sometimes there was none” near the acid tank (his delivery point, quite close the ponds). He found that the range of that smell was “basically mellow to zero”.

E. Mr Jamieson’s evidence - odours

(1) Minad factory: - The processes undertaken within the Minad factory involved blending dairy products (like powdered milk) and producing a product with ground-up shark cartilage. Mr Jamieson had been to the Minad factory about five times. On two occasions, his attendance at the Minad factory involved the investigation of odour complaints. On those occasions he smelt a fishy odour at the Minad factory that he found unpleasant. He described it as “more of an off fish odour”.

(2) Dairy Farmers factory: - The wastewater treatment facility within the Dairy Farmers’ factory could produce an odour “between a musty odour to a grease trap odour, or an odour similar to a grease trap, an old-style grease trap”.

(3) Dairy Farmers irrigation area: - a musty odour.

(4) Paper mill: - odours “similar to wet papier-mache with a sour component to it”. Mr Jamieson had also smelt this odour when driving past the paper mill.

(5) Bryce Farm: - A dairy farm, where cattle are run and milked. Mr Jamieson had been to Bryce Farm in response to odour complaints. Mr Jamieson was aware that at Bryce Farm effluent from both the Minad factory and the Dairy Farmers factory was sprayed onto paddocks for pasture management. While at Bryce Farm he had smelt “two odours. One was a manure-type odour from his dairy shed area. The other odour was a fishy odour”.

(6) Bomaderry sewage treatment plant: - Mr Jamieson had inspected the Bomaderry sewage treatment plant “quite a large number of times”. At this plant he had “smelt sullage type odours similar to the smell a washing machine gives when water has been left in it. I've smelt an odour particular to sewage sludge. It's difficult to describe. To me it's like sewage sludge, and I have smelt an odour with a high sulphuric point, a rotten egg gas component to it”.

(7) Nowra sewage treatment plant: - Mr Jamieson had also inspected the Nowra sewage treatment plant “quite a large number of times”. At this plant he had only smelt “sullage odours”.

36 Mr Jamieson walked west with Mr Newman on the bank between ponds 3 and 4. He got a short distance and was overwhelmed by a terrible odour. He said that it “was a strong odour. It had strong vomit components to it. It had strong off-cheese components to it. It was a sharp odour and it had strong dog faeces components to it”. This odour made him gasp and took his breath away. He forced himself to remain in the odour. He dropped blades of grass several times to see which way they travelled in the wind. He felt the wind on his face. He said that he formed the view that the wind was coming directly from the location of the up-welling in pond 4. He moved in and out of the “zone of influence” of that odour. He then walked west between the banks of ponds 3 and 4, and on the bottom bank of pond 2 and between ponds 1 and 2. When he walked between ponds 1 and 2, Mr Jamieson smelt an odour. He said that this odour did not have the dog faeces component to it, but had the “vomit components and the off-cheese components and the sharp components”. He found this odour unpleasant. He then walked between ponds 1 and 6 to the western edge of the ponds. He saw a pipe spraying a liquid mist in the air. He observed that the mist was being blown to the east. He considered that this confirmed his view that the wind was generally from the east. He then turned south down the western edge of pond 1. Near the south-west corner of pond 1 he smelt the “strong odour with vomit characteristics, with off-cheese characteristics, with sharp characteristic and with a strong dog faeces characteristics”. This was unpleasant. He dropped some blades of grass several times from head height to observe their movement. He “formed the view that the path of the wind was from the direction where I'd seen the disturbance in pond 4 towards me”. He walked along the bottom banks of ponds 1, 2 and 3 until he reached pond 5. On reaching that point, he smelt the odour with “stale, mouldy-type characteristics about it”.

37 At about 5.45pm on 15 April 2004, Mr Jamieson returned to the ponds. He parked on the bank of the north-east corner of pond 6. He sniffed the air and could not smell any unpleasant odours or odours out of the ordinary. He drove along the pond wall of pond 6 to its western wall. He got out of the car and smelt an odour that had characteristics reminiscent of human vomit and off-cheese, and which was readily detectable. He recalled no reaction to that odour. He observed that there were stronger and lighter movements of air at this time, generally from the east. He drove to pond 4. He drove around the pond and stopped on its western side, which was downwind at the time. He got out of the car and smelt odours like off-cheese and vomit, but much less intense than he had smelt at this location earlier in the day. He observed that the pumping seemed to have ceased (from pond 3 to pond 4).

38 Otherwise, between about 9.40am and 6.00pm Mr Jamieson drove around the locality, variously stopping and getting out of his car, smelling the air, making general observations of wind strength and direction (by observing physical markers where available, and dropping blades of grass from head height to see which direction they were being blown in). In the course of doing so, Mr Jamieson drove with his windows down and air conditioning off until after his second inspection of the ponds. He drove past each of the other potential odour sources in the locality that he identified (see above), mostly more than once.

(1) Jasmine Street, Bomaderry: - Mr Jamieson could not detect any odours.

(2) At the park on the corner of Tallayang Street: - During the course of having lunch, Mr Jamieson could smell odours wafting in and out. Those odours “had characteristics of vomit, off-cheese and some dog faeces odour”. They were less intense than the ones he had smelt earlier when downwind of the up-welling in pond 4, but were “the same odours”. He had an upset stomach. He tried to eat to settle his stomach. He observed generally that the breeze on his face was from the east and thought this was consistent with the movement of the trees in the park.

(3) Past the Ambulance station: - He smelt an odour with “vomit characteristics and off-cheese characteristics”, which was the same odour he had smelt at the defendant’s ponds and elsewhere that day.

(4) Nita Place, Bomaderry: - He got out of the car and smelt an odour “with characteristics reminiscent of human vomit and characteristics like off-cheese”, which was the same odour he had smelt at the defendant’s ponds, on Hannigans Lane, in Meroo Road, and in the park having lunch. When walking back to the car from the house, Mr Jamieson smelt “an odour with characteristics reminiscent of human vomit. It also had an off-cheese odour and it also had a dog faeces odour“. This odour was relatively moderate to strong in strength. This odour had a slight impact on his stomach.

(5) Bomaderry sewage treatment plant: - He observed that the wind was generally from the east, east-north-east. Both upwind and downwind of the plant he smelt only the vomit and off-cheese odour. These were the same odours he had smelt at the defendant’s ponds and elsewhere during the day. When quite close to the trickling filters he smelt a sullage odour of moderate strength. He walked to the inlet works. He approached from a downwind position and when quite close smelt “a sullage odour which is similar to water left in a washing machine for several days”. He climbed to the top of the works and smelt the sullage odour. He walked back past the trickling filters and smelt the sullage odour. He did not smell any sewage odours.

(6) Sewer pumping station in Concorde Way, Bomaderry: - He smelt a diesel odour. He saw that there was a refuelling bowser near the pumping station. He moved upwind of the pumping station and did not smell “any odours out of the ordinary for a rural area”. He walked east of the pumping station and did not smell any odours.

(7) Hannigans Lane at a point roughly west of the defendant’s ponds at about 3.15pm: - He smelt a strong odour with vomit characteristics and off-cheese characteristics. This was the same odour he had smelt earlier in the day at the defendant’s ponds and elsewhere.

(8) Dairy Farmers factory: - He observed that the wind was generally roughly east-north-east direction. He walked to the wastewater treatment tanks on their western (downwind) side. He smelt the odour with the characteristics of a grease-trap, as he had smelt earlier in the day when driving past this factory. He drove to the boundary of the Dairy Farmer’s property on Bolong Road and walked along the road a short distance. He smelt the same grease trap odour, but it was less intense. That location was about 100 metres from the point where he detected that odour. He drove past the defendant’s factory and parked at premises known as Shoalhaven Steel and sniffed the air. He could not smell the grease-trap odour, but could smell a light brewery odour. That was not an unpleasant odour. He drove further to the west to a point where he could drive north-south. He did that and got out of his car two or three times to sniff the air. He could not smell the grease-trap odour, only the light brewery odour.

(9) Bowada Street, Bomaderry near Thurgate Oval: - He smelt an odour wafting in and out that had characteristics like human vomit and like off-cheese.

(10) Karowa and Bunberra Streets, Bomaderry: - When he got out of the car he smelt an odour with “vomit characteristics and characteristics reminiscent of off-cheese, vomit odours”. This odour was “readily detectable”. As he walked up and down the street, the odour brought water to his mouth. When he spoke to Mr Gordon (a resident), Mr Jamieson “smelt an odour with characteristics reminiscent of human vomit, and also it had a slight dog faeces odour to it as well”, and when he walked up and down the street the smell upset his stomach slightly. He observed Mr Gordon’s wind sock, which showed a generally easterly wind.

(11) The Minad factory: - He walked downwind of the factory, on its western side, and around the effluent storage tank. He did not smell anything.

(12) Nowra sewage treatment plant: - He parked at the gate and walked the northern boundary of the sewage treatment plant, where the main infrastructure is. As he got near the sludge lagoons he smelt a sullage odour. He smelt the same odour where the inlet and trickling filters were located. He walked near the maturation pond. He did not smell any unpleasant odours or any odours out of the ordinary for a rural area. He walked back along the boundary and smelt the sullage odour at the same point. He stopped and walked away from the boundary. He walked north and after about 20 metres could not smell the sullage odour. Wind conditions were calm at the time.

(13) Princeton Place, Bomaderry: - Mr Jamieson got out of his car, but could not smell any unpleasant odours or odours out of the ordinary in an urban environment.

40 Mr Jamieson was cross-examined at length about his credit and various steps he took or did not take throughout the course of 15 April 2004 and thereafter. Mr Jamieson denied that he had exaggerated the strength of the odours he smelt and the effect on him. He agreed that in his notes dictated during his first inspection of the ponds he had used the phrase “grease trap odour” to describe the odour which he had determined was coming from the up-welling in pond 4 (his words in the note were “…it's a combination of dog crap and kind of a grease trap odour, very, very offensive and we are immediately downwind”), but had omitted the word “grease-trap” in his oral evidence.

41 Otherwise, Mr Jamieson agreed, for example, that he had not measured the concentration of the odours he smelt with an olfactometer, he had not checked his wind directions with a hand held anemometer and compass, he had not changed his clothes during 15 April, he had not taken steps to neutralise his sense of smell in the field, and he had not walked in a direct line from the ponds where he identified the odour and the odour source across the boundary of the defendant’ premises to Hannigans Lane. He also agreed with many other propositions put to him in cross-examination about his investigation – for example, his failure to comply with testing guidelines about the liquid samples taken in ponds 3 and 4, the absence of sludge samples, the absence of microbiological tests of sludge or liquid samples, and the absence of full and contemporaneous notes of a conversation he had with the defendant’s then environmental manager, Mr Hill.

42 With respect to alternative odour sources, Mr Jamieson accepted or stated that: - (i) there were no buildings between the paper mill and the ponds, (ii) the distance between the ponds and the paper mill was about 350 metres, (iii) if the prevailing winds had been such that he ponds were downwind of the paper mill and the paper mill was the source of dog faeces odour, such an odour theoretically could have come across from the paper mill to pond 3 or pond 4, (iv) he drove past but did not go into Ridley Agriproducts, (v) he did not go into the farms located south of Bolong Road and east of the paper mill (or the paper mill), (vi) he did not go into a farm north of Bolong Road, (vii) he drove past Schofield’s Farm and Eaton’s Farm a number of times but did no go into either farm, (viii) he had the windows of the car down for the vast majority of the day, and was making observations during the course of the day, so that it was not necessary physically to inspect all premises to rule them in or out as a potential odour source, and (ix) as a general proposition, odours were sometimes similar.

F. Mr Newman’s evidence - odours

43 Mr Newman said that, in his experience, the wastewater treatment system at the paper mill could cause odours. He had smelt a “sewage type odour” coming from the paper mill on an occasion prior to 14 and 15 April 2004. However, he did not recall having smelt a “dog faeces” odour from the paper mill or having described any odour he had smelt there as a “dog shit” odour.

44 Mr Newman, like Mr Jamieson, gave lengthy evidence about his observations and activities on 15 April 2004. Mr Newman also visited the defendant’s ponds on two occasions on that day. The first occasion was with Mr Jamieson at about 12.30pm. Mr Newman said that on arriving at the ponds he saw a hose that ran from the south-east corner of pond 3 to the north-east corner of pond 4. He observed effluent up-welling in the north eastern corner of pond 4. As he got near where the hose entered pond 3, he smelt a very strong odour. He described the odour as “concentrated dog faeces. It was an extremely concentrated and strong odour”. The odour caused him to gag and saliva to come into his mouth. He said there were elements of this odour near pond 3, but it seemed strongest near the up-welling in pond 4. He recalled that there was a light easterly breeze with a southerly component. He saw Mr Jamieson throw blades of grass in the air and also did so, and turned his face into the breeze. Mr Newman said he had never smelt this odour before. He said they then walked along the western edge of pond 5, and he smelt “a swampy type odour”. They then walked down the east-west access road between ponds 3 and 4. At a point about 30 metres from the up-welling in pond 4, the odour seemed to be at its most concentrated. He saw Mr Jamieson throw blades of grass in the air and also did so. He formed the view that they were directly downwind of the source of the odour (that is, the up-welling). He found himself gagging. He found the odour extremely strong and concentrated, and wanted to get away from it. Again, he had never smelt that odour before. He then walked west past pond 2 to pond 1. At pond 1 he found the odour most concentrated, in a location he thought directly downwind of the up-welling in pond 4. He then walked between ponds 1 and 6.

45 Mr Newman returned to the ponds in the mid-afternoon on 15 April 2004. He drove to the eastern embankment of pond 5 and headed south. He did not smell any odours. He drove west along the southern embankment of pond 5. He smelt a swampy odour. He then drove up the western edge of pond 4, heading north. Two thirds of the way along the western edge of pond 4, he smelt again “the extremely strong and concentrated dog faeces type odour”. It made him gag. He felt the urge to vomit. He said it was the same odour he had smelt from the up-welling area at pond 4. He got out of the car and walked a short distance back and forth and turned into the wind. He determined that he was downwind of the up-welling in pond 4.

(1) Jasmine Drive, Bomaderry: - no odours.

(2) Park in Bomaderry at lunchtime: - Mr Newman smelt an odour. He observed the wind in the trees and felt the wind in his face and thought the wind was coming from the east with northerly components to it.

(3) Nita Place, Bomaderry: - He smelt “the vomit type odour with off-cheese type elements to it”. He noted that the wind was gusting at that time. The smell made him queasy, produced saliva in his mouth and he had the urge to vomit. As he was walking down the driveway he “detected the concentrated dog faeces odour again”, which he found “extremely concentrated” and wanted to get away from as he had a strong reaction to it.

(4) While driving east on Cambewarra Road, near Brinawarr Street to go home: - he “drove into an extremely concentrated odour. It was the concentrated dog faeces type odour”. He said, this was “the same odour I'd smelt in the proximity of the up-welling effluent on pond 4”. The odour was so strong and bad that he pulled over and made arrangements to stay in the area. He had to fight the urge to throw up, and was swallowing saliva.

(5) Corner of Cambewarra Road and Meroo Street: - He drove again into the concentrated dog faeces odour. He said that this was the same smell he smelt in the proximity of pond 3 and the up-welling effluent at pond 4. The odour made him feel queasy, like he wanted to throw up and he wanted to get away from it.

(6) Driving along Railway Street past the sewage treatment plant: - He again smelt the concentrated dog faeces odour, which had the same effect on him as before.

(7) Jennings Lane: - He got stuck behind a herd of cows, which he could smell, and arrived at the northern end of Jennings Lane. He detected an earthy odour.

(8) Paper mill: - He looked at the flagpoles and saw that wind was easterly with a northerly component. Mr Newman went to the wastewater treatment plant on the paper mill premises. As he got close to the primary clarifier tank, he smelt a sewage odour. He did not find that odour as strong or concentrated, and it did not have the concentrated dog faeces components, he had smelt earlier in the day at the defendant’s ponds and elsewhere. He walked around the clarifier until he felt the wind on his face. He walked a series of circles around the clarifier at 10, 50 and 100 metre intervals. He wanted to be sure it was not the same odour as the concentrated dog faeces odour. He said this sewage odour “didn't have the characteristics of the concentrated dog faeces odour” he had smelt at the defendant’s ponds and elsewhere. As he walked the circles he threw blades of grass in the air. He could not smell the sewage odour at 100 metres from the clarifier.

(9) Sewage pump station at Concorde Way: - no odours.

(10) Sewage pump station near Victa Way: - He smelt a sewage type odour. About 10 metres downwind of this pump station, he could not smell this odour.

(11) Meroo Street, Bomaderry: - He again smelt the concentrated dog faeces odour that made him want to throw up. He met Mr Jamieson. He sat down with him outside the bakery on Meroo Street and smelt the “vomit type odour”.

(12) Karowa Street, Bomaderry: - Mr Newman spoke to Mr Williamson. Mr Newman smelt the vomit type odour when talking to Mr Williamson.

47 Mr Newman was cross-examined at length about his credit and various steps he took or did not take throughout the course of 15 April 2004 and thereafter. Mr Newman agreed that in his affidavit he had not used the descriptor “off-cheese” to describe the odour he smelt on Hannigans Lane on 15 April 2004, but had said “vinegar and vomit”. He denied he was attempting to be consistent with other witnesses, including Mr Jamieson, but said that the odour could be described by a number of different descriptors, including “off-cheese” which was a descriptor he had used before and would use to describe the odour he smelt. He said that the purpose of walking in concentric circles around the wastewater treatment plant at the paper mill was to see if the sewage odour was carrying, as it was not a very strong odour. He had not smelt it when he arrived at those premises and did not believe he had smelt it earlier in the day. He said he could distinguish the odour from the wastewater treatment plant at the paper mill from the odour at the defendant’s ponds, as they did not have similar elements, but accepted that the two smells did both have characteristics of faeces, and that it may be very difficult to determine actual characteristics of faeces (for example, he agreed he could not tell the difference between dog and cat faeces). He said he did not smell any grease-trap odour between ponds 3 and 4, but had smelt a grease-trap odour around 10.41 whilst driving along Bolong Road in the vicinity of the Dairy Farmers factory, again, outside the Dairy Farmers factory on Bolong Road at 14.41, and again at 17.50 in the same vicinity. When it was put to Mr Newman that the odour he smelt at the ponds was not nearly as bad as he said, he responded “I can say that is the worst odour I've ever smelt on the Shoalhaven Starches premises”.

48 Otherwise, Mr Newman agreed, for example, that he wore the same clothes all day on 15 April 2004, he did not take any steps to “neutralise his sense of smell” on 15 April 2004, and he had not been trained in distinguishing odours.

49 With respect to alternative odour sources, Mr Newman agreed that he knew generally of Eaton’s Farm, but not Schofield’s Farm. He had driven past Eaton’s Farm with the windows down, but had not gone into that premises.

G. Other evidence about odours on 14 and 15 April 2004

50 Mr Lawer made a delivery of sulphuric acid to the defendant’s environmental farm on 15 April 2004. He arrived at the acid tank at about 4.00am. The delivery process takes about 50 minutes to an hour. Mr Lawer wore protective equipment when delivering the sulphuric acid – “goggles, little face shield, safety hat, and at the time it was wet weather gear” and thick rubber gloves. The face shield was to protect him from splashes. In the truck, he had an acid mist respirator if necessary, but he did not wear it during deliveries. While making the delivery, he waited around the pumping area wearing his protective gear. He did not smell anything unusual. He said that had he smelt anything unusual or out of the ordinary that he considered relevant to safety or hazard issues, he would have recorded it in his diary. Mr Lawer agreed that inhalation of sulphuric acid gas or mist can lead to damage to the mucus membranes of the nose, and that he did not wear his acid mist respirator when venting the tank. He thought he had a keen sense of smell. A chemical fact sheet from the supplier of the sulphuric acid referred to the acid as having the properties “fumes strongly in moist air” and “extremely hygroscopic” (that is, absorbs or attracts moisture). Personal protection requirements included that “if inhalation risk exists wear acid mist respirator”.

51 Mr Thompson was at work at the environmental farm on 14 April 2004. Mr Thompson said that they were preparing to commence irrigation on the next day (15 April) and he made arrangements with the employees he supervised on 13 and 14 April 2004 to enable that to occur. He did not smell any unusual odours throughout that day on the irrigation paddocks or near the ponds. On the afternoon on 14 April 2004, in response to information he received about an odour complaint, Mr Thompson drove out onto Bolong Road, continued west past the defendant’s factory premises, crossed the Shoalhaven River Bridge with his windows open and tried to smell any odour. He could not smell anything. He continued along the Highway, turned around and drove back up the Highway to where it intersects with Meroo Road (north of Bomaderry township), turned into Meroo Road (with his windows open) and drove down that road to Bomaderry. He turned into Meroo Street and then into Bolong Road and went back to the environmental farm area. He did not smell any odours during that exercise.

52 On 15 April 2004, Mr Thompson was on holidays. He received a call that morning at about 8.00am on his mobile phone from a resident who had his mobile phone number. The resident lived in Lyrebird Avenue, Nowra south of the River and just east of the Bridge, and complained of odour in her area. Mr Thompson called the defendant’s environmental manager, Mr Hill, to advise him of the call. Mr Thompson drove from his home in Illaroo Road across the Bridge and into Riverview Road and Terara Road and back along the Highway. He did not smell any odours. After that, he went to Sussex Inlet for the day. He received four phone calls on 15 April 2004 relating to work matters, but none suggested to him anything unusual was occurring. He returned to work on 19 April 2004.

(1) Ms Smith: - Smelt a “mixture of cat and dog faeces” when she woke up at about 6.25am on 14 April 2004 at West Birriley Street, Bomaderry. The smell made her feel nauseous. She could not open the windows or doors all day. She went to Nowra private hospital on 15 April 2004, and noticed the same smell in the hospital car park at about 8.30am.

(2) Ms Russell: - On 14 April 2004, at about 4.30pm, she smelt a “terrible putrid smell”. The windows and doors were open and the smell came through the house at Terara – “a dirty vomit-like smell, very unpleasant”. The smell had no physical effects on her, other than to make her feel uncomfortable. She closed the windows and back door. Twice during the night (at about 1.00am and 3.30am), she let the dog out, and noticed the smell was still as strong. At about 8.15am on 15 April 2004, Ms Russell walked outside her house. It was still foggy. She noticed that the smell was still extremely strong – as strong as the night before. She drove to the Council where she worked. The smell was still strong when she got out of her car in the Council carpark. The best description she could give to the smell was a “putrid sulphur-like smell, a bit like sweet vomit”. It did not smell like dog faeces. It could be described as an off-cheese smell. It was a sour smell. She had smelt sewage smells before in the area. It was not a sewage smell.

(4) Ms Collingridge: - At approximately 5.15am on 15 April 2004, she was awoken by a “very acrid, caustic sort of smell” coming into the window of her bedroom (Bunberra Street, Bomaderry). Ms Collingridge likened the smell to “something you'd smell in a science lab at school, like a sulphur type - a sulphur based smell, a fairly powerful acrid type smell”. The smell was so strong that she could taste it. She shut the window and went to the kitchen to have a glass of water to “kind of wash the smell away”. She had not smelt a smell like that “unless you are talking about school, in a school science experiment”. At about 6.30am, Ms Collingridge took the dog for a walk. She did not notice the smell at that time which seemed to have dissipated. Ms Collingridge said that the smell she smelt on the morning of 15 April 2004 was a different smell from the defendant’s “normal” smell.

(5) Ms Walker: - At about 6.15am, Ms Walker awoke and opened her bedroom window at Worrigee, and noticed a sickly smell. She described this as “a yeasty, sickly, sweet, foul smell”. The smell had no effect on her, but she immediately closed the window. She went to her daughter’s bedroom, opened the window, smelt the same smell, and close that window again. She had never smelt that smell at Worrigee before. The smell was also at the bus stop (along Worrigee Road to the north about 400 metres), and she let the children stay in the car to wait for the bus. She went to the Council Chambers in Nowra CBD and noticed the same smell. She had driven by the defendant’s premises and had smelt the same smell in that vicinity “many, many times”. Ms Walker said the smell was not a sewage smell, not a dog faeces smell, was close to a vomit smell as it was very yeasty and sickly and sweet, but was not an off-cheese, grease trap or vinegar smell.

(6) Ms Taylor: - Ms Taylor opened the sliding doors and windows at her home at Worrigee at about 6.30am on 15 April 2004. She noticed a “foul odour, stale milk, smelly sandshoes - just a foul odour”. It had no physical effect on her, but it was “very offensive”, so she closed the house up to stop it getting in the house. She had never smelt that odour at her home before, but she had smelt it “in the CBD, down at work, mainly in the Bomaderry area”, depending on the winds. She had driven past the defendant’s premises and noticed the odour there when the southerly was blowing. Ms Taylor drove to work. When she got out of the car at her work (Shoalhaven City Council), she smelt the same odours – it was “very strong“ because it was “very still”, with no wind to move it on. Ms Taylor said the odour was not a sewage odour or a dog faeces odour. She could not say if it was an off-cheese odour – it would depend on the kind of cheese. She could not “pinpoint” the odour description – it was “sort of a combination of odours”, but “vile, sour, sour”.

(7) Ms Anstiss: - As she was walking to her work at the hospital on the northern side of the River near the turn off to the golf course, Ms Anstiss smelt a rancid vinegar smell, “a vinegar smell but with a horrible rancid nature to it”. She said it was a “familiar smell with a horrible - as if it had gone rancid”. The smell was so strong that Ms Anstiss had to cover her nose and mouth with a handkerchief for her walk, as the smell was “such an objectionable smell that I couldn't breathe it in”. The smell ruined her walk. That smell seemed also to linger around the hospital that day. She said the smell was not a sewage, off-cheese, stale milk or vomit smell.

(8) Ms Davidson: - Ms Davidson smelt an odour which came into her house at Lyrebird Drive, Nowra in the morning on 15 April 2004. The smell was revolting, like flour that had been left in water for a long time “… it smells likes vomit by the time it rots. That's how it smells to me. It has that terrible odour”. Also, that “if you let anything rot in a bowl, that's what it has, that sickening vomity smell”. She grew up on a dairy and knew what rotting milk smelt like – which has a different smell. The 15 April 2004 smell nauseated her. She had smelt that smell in the past, but it was stronger that day. She had smelt it before inside her home, as she drove along Bolong Road, and at the bowling club in Bomaderry. With respect to Bolong Road, she said that “I've smelt it just before you get to Manildra, all of a sudden, the smell comes, and also - well, and other areas along Bolong Road, that same smell is there too”.

(9) Ms O’Neill: - While driving to work along Bolong Road and across the bridge, Ms O’Neill smelt a “foul smell”. It made her feel she was going to be physically sick. It was like a “rotting garbage and sewage, like, you know, when grass … that has sat there and it goes rotten. It was really quite bad”. She described it as “a mixture of rotting garbage, sewage, silage. It was just really - it was a really hard smell to describe”. She had never smelt that smell before. She smelt the same smell in various streets of Nowra in the morning. Ms O’Neill called the Council and the EPA about the smell. Ms O’Neill had smelt smells from the defendant’s premises in the past and said that this smell was a “different smell”. The smell she associated with the defendant’s premises was not exactly that smell, but a mixture “of rotting vegetation and a yeasty - like a yeasty, hop smell”. She went back along Bolong Road at about 6.00 or 6.30 pm that night, and did not smell the odour.

(10) Mr Ash: – Mr Ash said in his affidavit that at about 8.00am to 8.30am on 15 April 2004, he was awoken from sleep by a smell like “dog poo”. The windows and doors were closed. The smell was throughout the house. He left for work at about 9.30am. He came home about 10.00pm, and the smell was still present outside the house. The smell was not a dairy farm smell (he worked next door to a diary farm).

(11) Ms Medcalf: - On the morning of 15 April 2004 just before or after 9.00am, Ms Medcalf was driving to work via Bolong Road. She said “I notice quite frequently a smell from the industry along there, and on that particular day it was actually a lot worse than it had been previously, and has been since”. She said the smell was a “sour smell” and not pleasant. She said it “impacted in such a way that it actually hit the back of my nostrils. I could still smell it even with the vents closed and the windows closed” and it made her feel quite nauseous. She could still smell the odour at her work in Nowra. Ms Medcalf drove home the same way. She left at about 4.10pm. Whilst driving on Bolong Road, she smelt the same smell at the same place, but not as strong as in the morning.

(12) Mr Williamson: - At about 10.00am on 15 April 2004, Mr Williamson opened his backdoor (Karowa Street, Bomaderry), and noticed a terrible smell, “a rotting, sickly, sweet vegetation type smell. It has its own unique characteristics”. He closed all the windows and doors to keep the smell out. He hung some washing out, but took it back in at about 10.30am, as he was afraid the smell might get into the clothes. He had smelt the smell before on more than one occasion – “at home, in the main street of Bomaderry, in Bolong Road, Bomaderry, at the boat launching ramp at Bomaderry Park, the Princes Highway, Bomaderry, virtually a 5-kilometre radius from where I reside”. The particular location where he more frequently smelt this smell was right next to the defendant’s ponds. At about 4.30pm, Mr Newman came to his house. He and Mr Newman went outside. Mr Williamson smelled the same terrible smell at that time. He thought the odour was stronger and more intense than he usually smelt, a “more undiluted smell”.

(13) Mr Gordon: - Mr Gordon arrived home (Bunberra Street, Bomaderry) at 2.30pm on 15 April 2004. When he got out of the car he noticed a “fairly pungent smell, a strong smell”. He said the smell was “a very acidic type of smell, very, very in your face type of smell… It had a bit of a sick taste to it, like vomit. Yep, very much like a vomity smell. Yep, that's how I'd describe it. Yeah, very sick… a very ill taste”. The smell made him uncomfortable. He went inside and opened the windows because it was a fairly warm afternoon. The smell came into the house, so he closed the house up. He burned some incense to try to dissipate the smell. He said he could “feel it [the smell] into my nose and face a bit, and into my sinus. It was a fairly sharp type of feeling”. He explained that it “was like solid jam or something up your nose, hitting your sinus. It was quite a painful smell. I do distinctly remember that. That’s probably part of the reason why I contacted the EPA, because it was that type of smell. It was just not a typical smell. It had an effect on me”. Mr Gordon said he had smelt the smell before, but not as strong. He worked in Wollongong and went via Bolong Road. He said the smell could be smelt near the area where the defendant’s ponds were on the left. He said that when Mr Jamieson arrived at his home in the afternoon, the odour was still there, but not as strong, and his wind sock showed the breeze was blowing from the east north-east.

54 Mr Patterson is an authorised officer of the EPA. He had inspected the defendant’s premises during the course of his duties on a number of occasions. Leading up to 14 and 15 April 2004, he had attended at the ponds about once a month to check on the operation. On 15 April 2004, he attended a meeting at the Shoalhaven City Council Chambers in Nowra. He arrived at about 8.50am. When he got out of the car, Mr Patterson said that he smelt a strong odour. He thought the smell was very similar to what he had smelt before at the defendant’s storage ponds. Mr Patterson said that the smell was “a sickly sweet vomit type odour in the air, and that's what I characterise very similar to what Shoalhaven Starches ponds smell like”. The smell made him turn his nose up, but certainly did not make him feel sick.

H. Expert evidence – air

Mr Stephenson

(1) Absent specific training, people tend to group odour descriptions, which can make it impossible to determine what was being detected. This vocabulary limitation can be overcome by use of an “odour wheel” which contains structured guidewords. No use was made of an odour wheel in the investigation. Without the use of an odour wheel, it is not possible to say with certainty that offensive odours from different sources have not been grouped together and attributed inappropriately to the defendant’s ponds.

(2) There are a number of potential odour sources in the Bomaderry area. It is necessary to have detailed knowledge of the odour emissions from each odour source before and during the odour incident to be able to determine which sources created the odour incident. Mr Jamieson and Mr Newman did not inspect each odour source.

(3) It is not possible to know with accuracy the wind directions and speeds at the locations where Mr Jamieson and Mr Newman made observations on 15 April 2004. The meteorological data measured winds at the environmental farm, not at the locations attended by Mr Jamieson and Mr Newman. Mr Jamieson and Mr Newman did not measure wind speeds and directions at these locations.

(4) Mr Jamieson and Mr Newman did not adopt a formal methodology for assessing odour sources. They exposed themselves to all odours in the area. Hence, there is a very real risk that they biased their sense of smell and contaminated their clothes and cars with odour. Good practice involves minimising exposure to odours and breathing purified air before undertaking an assessment. Also, the sensitivity of the assessor should first be established (that is, whether they have a sensitive or insensitive sense of smell).

(5) Mr Jamieson and Mr Newman did not undertake odour strength measurements at their observation points. As such, the strength of the odours they experienced cannot be determined.

(6) Weather conditions before and during the incident were calm to light and highly variable breezes overnight under the presence of inversions, with wind speed increasing to light to moderate breezes and winds in the morning, with north easterly breezes and winds in the afternoon. Under such conditions, odour emissions would be expected to remain within the Shoalhaven River valley and mix overnight. The mixed odours would then be transported away as the winds increased in the mornings, making it impossible to know the exact source of the odours.

(7) The defendant operated three weather stations. Two were not located in a suitable place for the purpose of this investigation. One was so located, and complied with the Australian Standard. The EPA used data from one of the unsuitable weather stations. This would lead to inaccurate conclusions. As noted, this data did not relate to the locations of observations by Mr Jamieson and Mr Newman away from this weather station. Without data about both the release point and the observation location, it is not possible to know the likelihood of odours leaving the release point and reaching the observation point.

(8) When Mr Jamieson and Mr Newman said they smelt odours from the defendant’s ponds in Bomaderry on the afternoon of 15 April 2004, the wind was not blowing from the ponds to Bomaderry. It was blowing in a direction to the south of Bomaderry. Odours experienced on that afternoon would most likely be from a source north-east of Bomaderry. One complainant had said he smelt the same odour twice - on the afternoon of 15 April 2004 and earlier. Hence, the earlier odour also came from the north-east of Bomaderry.

27 odour incident reports were reviewed and from the assessment the following conclusions were made:

23 of the 27 complaints could be attributed to a number of potential odour generating activities in the Bolong Road, Bomaderry and Nowra areas, including Shoalhaven Starches.

The other potential odour generating activities in the area include: Paper Mill, Dairy Co-operative facility and associated activities, Bryce’s irrigation Area, Bomaderry Wastewater Treatment Plant (WWTP), Minad Factory, local saleyards and Nowra WWTP.

The Environmental Farm was operating as per operating procedures and no incidents were recorded.

A heavy fog was present on the morning of the 15 April.

Unusually elevated temperature on 14th April, not typical of the season.

The heavy fog would have “trapped” any odours generated in the river “valley” and these odours would not have dispersed until the fog lifted and wind speed increased later in the morning.

The complaints reports from the Bomaderry area was considered likely to be attributable to either or a combination of the Bomaderry WWTP, Shoalhaven Starches Environmental Farm or any other activity occurring to the east of the town.

57 Mr Stephenson confirmed that he had had a long and profitable relationship with the defendant, which was continuing. He said that he was giving independent expert evidence in this matter.

…it would appear that those odours could not have come from the ponds and that they were following these plots that are before me, that those odours could have come from somewhere else or been travelling in that air mass that had been moving around since the inversion had broken up earlier in the morning, and they were still following as a package of air and following the plots. The concept of plotting of both the red plot here and the green plot are both showing that the air moved at varying times - either it was stationery or it was being pushed by a breeze that was moving that total air mass. The air mass wasn't strong enough to break it up until later on.

59 The red and green plots are a reference to Exhibit 17, a recreation of an odour path prepared by Mr Todoroski.

The intensity is a little unusual but the intensity would indicate that that air mass was - they were in that air mass, or that air mass was travelling with them, meaning that they had now developed some - either via their vehicle or their clothing or the location of their movements was drawing that air with them.

61 Mr Stephenson said that it was possible that the odours smelt by Mr Jamieson and Mr Newman at the ponds came from outside the defendant’s premises. He said that this possibility was “…definitely not pie in the sky”.

62 In cross-examination, Mr Stephenson agreed that none of his evidence about the absence of capacity for the ponds to produce dog faeces odour, vomit odour or off-cheese odour appeared in his report to the Court (or his June 2004 report attached to the defendant’s incident report), even though they were important points. Mr Stephenson denied that the conclusion he reached in June 2004 (23 of the 27 complaints could be attributed to a number of potential odour generating activities in the Bolong Road, Bomaderry and Nowra areas, including Shoalhaven Starches) was inconsistent with his oral evidence of the absence of capacity for the ponds to produce such odours, as the issue then was the “contribution of the odours” and it did not matter what the odour was. He agreed that, in hindsight, the conclusion of the June 2004 report should have been that 23 of the 27 complaints could be attributed to a number of potential odour generating activities in the Bolong Road, Bomaderry and Nowra areas, including Shoalhaven Starches “with the exception of vomit, off-cheese and dog faeces” odours.

The acid protocol and the realigning and reprocessing of the way water, wastewater, was pH adjusted and pumped to the irrigators. So that the reason that - there are probably a couple of reasons why that foul smell would appear, and one of those was the fact that the solids content that was in that water was just too high, so the solids that were lying on the ground would then ferment and produce that foul vomit, carboxylic acid.

64 He later agreed that the acid protocol had in fact been in place since the early 1990’s.

Q…Let's assume there's a bit of water on the top and that acid hadn't been added to that pond between January and April 2004, do you accept that there was a real capacity for pond 3 to produce an odour?
A. If it was full of solids and they were compacted, no, it wouldn't be possible.

Q. It wouldn't be possible to?
A. Generate the odour.

Q. Why then in June 2004 did you recommend to the company that they remove the solids?
A. Because the whole - the solids - the principle was to get - you just can't keep a pond that should be full of wastewater full of solids. The solids had to be removed.

Q. Is that a serious answer? You were recommending to the company in June 2004, weren't you, that they remove the solids because that was causing odour problems?
A. It was one potential source of odour.

Q. It was, can I suggest, the only source of odour you concentrated upon in your audit of 2004; would you like to see it?
A. Yes.

…

Q. Can I suggest to you that one of the matters that you had to deal with in this annual environmental audit report of June 2004 was the fact that offensive odours were still being emitted from these premises?
A. The environmental audit, PRP7, was to review progress of how PRP7 was going relative to its charter and consent.

Q. What does that mean? Listen to the question. I will put it in a simpler way if you like. Were there or were there not offensive odours being emitted from the farm around the time that you conducted your environmental audit report in June 2004?
A. We were investigating possible sources of odour.

Q. Were offensive odours, to your knowledge, being emitted from the defendant's premises at or around June 2004 when you did your report?
A. We were surveying all of those sites.

PROSECUTOR: Would your Honour direct the witness to answer my question?

HER HONOUR: Yes, there has been a question were there or were there not offensive odours being emitted from the farm in June 2004. That was the question.

PROSECUTOR: That is right.

WITNESS: We were measuring odours and getting concentrations of odour, and that was all part of this program. Whether they were offensive or not was a different issue.

PROSECUTOR: Q. You didn't know that one way or another?
A. No.

Q. Would you mind going to page 8 of your report. Your use of the English language and mine may be a little different, but would you mind telling her Honour what you mean by the words, "The elimination of offensive odours from the farm had not occurred at this point in time"?
A. Page 8?

Q. Page 8.
A. Yes. The elimination had not occurred by that time.

Q. If the elimination had not occurred at that time it follows, does it not, that as at June 2004 offensive odours were still being emitted from the farm?
A. Some offensive odours obviously.

Q. Including, can I suggest, vomit, cheese like smells?

A. Not necessarily.

Q. Do you accept that, prior to November 2003 when PRP7 was implemented in part, the ponds had the capacity to produce vomit and cheese like odours? I think you agreed with that a little earlier.
A. Yes.

Q. Do you agree with me that in June 2004 there was still old wastewater in the ponds or in a number of ponds because the system hadn't been fully commissioned?
A. Yes.

Q. Do you accept that that wastewater had the capacity as at June 2004 to produce odours of a vomit like nature?
A. If it was irrigated, yes.

Q. Well, you didn't - see, you put that qualification in just a couple of questions ago. When I first approached this subject you didn't?
A. Right at the beginning.

Q. You said that the ponds had the capacity to produce this odour, but the system had changed in some way. So is your position now that the ponds didn't have the capacity but the irrigation system did?

A. Yes.

Q…"As a result of these discussions the company prepared an Odour Management Plan including Pond Solids Removal addressing the above issues."

Now that suggests very much, do you agree, that removing the ponds' solids was part of odour management?
A. That's correct.

Q. You then go over the page:

"Since the 'old' wastewater is still being irrigated from the storage ponds, it is not possible to view the impact of the 'new' wastewater in relation to the number of complaints. It is envisaged that over the next 12 months, that all the 'old' wastewater would have been irrigated and the 'new' wastewater irrigated."

Now, do you agree with me that that very much suggests that at least at that point in time, June 2004, the presence of old wastewater and its irrigation over "the next 12 months", that very much suggests that at that date these premises had the capacity to produce offensive odours?

137 Professor Greenfield’s key opinions were that: - (i) it was highly unlikely the pH of the pond solids was different from the pH of the pond liquids, (ii) the low pH range in the ponds was a very harsh environment so it could be expected that all biological activity would be very slow, (iii) it was unlikely that the pumping of liquid from pond 3 to pond 4 would have disturbed the solids in the ponds, (iv) it was unlikely that biological activity would have occurred in the pipework, and (v) if any pond had “gone off”, the odour would not have stopped quickly as the ponds were large and slow moving. Professor Greenfield’s evidence must be considered as a whole in the context of the other evidence about the operational history of the ponds of which he was unaware (as he disclosed in his report), the capacity of the ponds to cause odours, the fact that Mr Jamieson and Mr Thompson said the ponds always smelt and the less intense vomit and off-cheese odours which Mr Jamieson smelt at the ponds late on 15 April 2004 after the pumping had stopped. In that context, I do not consider that Professor Greenfield’s evidence supported the defendant’s submissions that Mr Bliss’s opinions about the possible causes of odour from ponds 3 and/or 4 were fanciful and untenable.

138 Moreover, Professor Greenfield said that there was no biological break point (in terms of pH) under which microbes will not grow and over which they will grow. This is consistent with the approach of the defendant’s acid protocol that acidification would reduce or minimise (not, I note, eliminate) the potential for odours. Whether acid was added every day to the ponds or not cannot be decisive of anything given Professor Greenfield’s opinions and the other evidence in the proceedings that the ponds always smelt. Whenever acid was added, the amount involved what Mr Thompson described as a “guesstimate”. For this reason, Professor Greenfield thought it sensible for the pH to be tested every second day in accordance with the acid protocol, after the acid was added due to the low mixing power in the ponds and, I infer, the consequent slow distribution of the acid throughout the pond liquid. The pH, however, was not tested every second day, as Mr Thompson made clear. In common with Mr Bliss, Professor Greenfield did not know the presence or not of odorous compounds in the actual wastewater transferred to pond 3. Professor Greenfield did not know how long pond 3 had remained as pond solids without any acid being added. I am satisfied that pond 3 contained only solids from some time in December 2003, without any acid added thereafter until 6 April 2004 or 13 April 2004 (and, in my view, nothing can turn on this date). While low pH made biological activity very slow, Professor Greenfield accepted that the longer the pond solids remained without acid addition, the greater the risk of bacteria growing.

139 Professor Greenfield also said that if the ponds were generating odour caused by bacteria on 14 and 15 April 2004, he would not expect the odours to be as described, I infer, by Mr Jamieson and Mr Newman. Professor Greenfield carefully expressed this in terms as an expectation only. This expectation appeared in a report which otherwise disclosed that the biodegradable material in the defendant’s wastewater streams could generate anaerobes, which were well known for their ability to generate odorous compounds. In the context of the matters referred to in the above paragraph, Professor Greenfield’s expectation does not affect my acceptance of the evidence of Mr Jamieson and Mr Newman about what they smelt at the defendant’s ponds on 15 April 2004.

140 I cannot characterise Professor Greenfield’s evidence, considered in context, as inconsistent with Mr Bliss’s opinions that the reason the ponds caused the odours smelt by Mr Jamieson and Mr Newman was most likely to a consequence of anaerobic biological action in pond 3 effusing odours from the surface of that pond, exacerbated by the turbulence around the up-welling caused by pumping from pond 3 to pond 4.

Weather station data

141 The defendant submitted that the data from the farm paddock meteorological station showed that Mr Jamieson and Mr Newman were not downwind of the up-welling in pond 4 when they thought they were on 15 April 2004. This submission was based on Mr Stephenson’s evidence. For the reasons given above, I do not accept Mr Stephenson’s evidence based on data from the defendant’s meteorological stations. That evidence is generally inconsistent with Mr Todoroski’s evidence. Mr Todoroski provided me with reliable expert opinions, which I accept. The overall conclusion of Mr Todoroski (which I accept) is that the meteorological data alone did not exclude the defendant’s ponds as the source of the odour (contrary to Mr Stephenson’s evidence in his March 2006 report, which I reject). I also do not accept Mr Stephenson’s evidence about the unreliability of the data relied on by Mr Todoroski, or the defendant’s submission that this data (presumably) was so unreliable that Mr Todoroski’s opinions ought to be rejected. Mr Stephenson’s company had used the same data in the June 2004 incident report. Importantly, I accept that it was wrong to conclude (as Mr Stephenson did) that an odour could only reach a receiver if the wind had blown from the source to the receiver at the time the odour was smelt or in a short period prior to the odour being smelt.

142 Given these conclusions, the matters put to Mr Todoroski about the information needed for detailed odour modelling in an ideal world, the compliance or otherwise of the defendant’s meteorological stations with the Australian Standard, and the reliability of one of the defendant’s meteorological stations compared to the other, do not affect my conclusion that Mr Todoroski’s opinions should be accepted. The weather station data does not exclude the defendant’s ponds as the source of the odours smelt by the witnesses in these proceedings. The weather station data also does not undermine the reliability of the observations made by Mr Jamieson and Mr Newman at the ponds and elsewhere on 15 April 2004 about general wind direction and strength. I accept that they were capable of determining whether they were upwind or downwind of the ponds and the up-welling in pond 4 as they described.

Exhibit 17

143 Insofar as the defendant relied on Exhibit 17 to support the submission that Mr Stephenson’s evidence excluded the ponds as the source of the odour, I accept the prosecutor’s submissions about the inadequacies of that exhibit (and the other diagram showing the odour plumes path of travel in the March 2006 report). Even assuming the path shown to be accurate, the lines represent a postulated path of the plume only, and do not take into account the size of the plume. Insofar as Mr Stephenson did represent the width of the plume (page 58 of the March 2006 report), the diagram was unreliable for the reasons given by the prosecutor – it did not take into account the period of time leading up the odours being perceived and the location of the plume throughout that period.

Nature of odour

144 The odours Mr Jamieson and Mr Newman smelt at the ponds were particularly strong and plainly revolted them (that is, the vomit and off-cheese odour and the vomit, off-cheese and dog faeces odour for Mr Jamieson, and the concentrated dog faeces odour for Mr Newman). Mr Newman said he had never smelt such an odour before, and it was the worst odour he had ever smelt on the defendant’s premises. The fact that the odour they smelt at the ponds was particularly strong (and, in that sense, could be said to be unusual) does not undermine the veracity of their observations. The same conclusion applies to the observations made by some of the lay witnesses that the odour was different from the defendant’s normal odour, either because it was so much stronger or because it had other foul characteristics.

Hannigans Lane

145 The defendant submitted that if the ponds were the source of odour that was carried to Bomaderry, the odour would have had to cross Hannigans Lane, yet there was an “inexplicable” absence of complaint from residents of Hannigans Lane. Mr Jamieson said there were probably five or six residences on Hannigans Lane. I do not consider that any rational inference can be drawn from the absence of complaint from residents of Hannigans Lane. Mr Jamieson and Mr Newman smelt the same odour on Hannigans Lane as they smelt at the ponds. The absence of complaints from residents of Hannigans Lane is immaterial.

Mr Stephenson’s opinions about ponds not being the odour source

146 Against these findings, I deal with Mr Stephenson’s alternative explanations of the odour smelt by Mr Jamieson and Mr Newman at the ponds on 15 April 2004.

147 Mr Stephenson said in chief that the odours smelt by Mr Jamieson and Mr Newman on 15 April 2004 at the defendant’s ponds could not have originated from the ponds, because Mr Jamieson and Mr Newman were within an air mass that contained odours from elsewhere (to the south-east or north-east of the ponds) and which were travelling after the inversion lifted (in which context he referred to Exhibit 17). He did think the intensity of the odours they smelt a “little unusual”, but that did not alter his opinion. Later, he said that this phenomenon was not “pie in the sky” and was “possible” under a tight inversion. Later again, when asked in cross-examination why, in the case of a travelling air mass containing odour from outside the defendant’s premises, Mr Jamieson and Mr Newman smelt the odour downwind and not upwind of the ponds, he said that the odour could have “pooled”. That is, that the air mass containing the odours (generated outside the defendant’s premises) travelled from outside the defendant’s premises and pooled around the ponds. He finally said that the odour “could have been from the ponds and it could have been pooling”. Elsewhere in his evidence, Mr Stephenson referred to the possibility that the odour was travelling with Mr Jamieson and Mr Newman in their clothes or cars.

148 Mr Jamieson accepted that it was “theoretically possible” for an odour emitted from the paper mill to be transported on the breeze to ponds 3 and 4. Mr Todoroski said that he thought it “highly improbable” that the odour smelt by Mr Jamieson and Mr Newman could have come from other than the ponds, this being “next to impossible, but I can’t rule it out”.

149 Are these three hypotheses (odours travelling with Mr Jamieson and Mr Newman such as in clothes or cars, odours in travelling air mass, and/or odours in pooled air mass) reasonable hypotheses inconsistent with the ponds having been the source of the odours smelt by Mr Jamieson and Mr Newman at the ponds, which have not been negative beyond reasonable doubt? To put it another way, am I satisfied beyond reasonable doubt that the only rational inference on the evidence is that the ponds were the source of these odours?

150 I am satisfied beyond reasonable doubt that Mr Jamieson and Mr Newman were not carrying the odour around with them (in their clothes, cars or otherwise). That notion is irreconcilable with the whole of their evidence (which I accept) of having smelt odours in particular locations, and not in others. As one example, Mr Newman said (and I accept) that he was driving east on Cambewarra Road when he drove into the same concentrated dog faeces odour that he smelt at the defendant’s ponds earlier in the day. That evidence is irreconcilable with the notion that the odour was travelling with Mr Newman. The same observations could be made about Mr Jamieson’s evidence. This hypothesis has been excluded on the evidence beyond reasonable doubt.

151 I am satisfied beyond reasonable doubt that the notion that Mr Jamieson and Mr Newman were unlucky enough to be standing in a travelling air mass containing concentrated odours from elsewhere on each occasion they visited the ponds throughout 15 April 2004 is irrational. This notion is irreconcilable with the facts that between them Mr Jamieson and Mr Newman were at the ponds three times through the afternoon of 15 April 2004, and the particularly strong odour (with the dog faeces component) was present when the pump was operating to transfer wastewater from pond 3 to pond 4, and absent when it was not. Mr Jamieson and Mr Newman did not smell the particularly strong odour (with the dog faeces component) upwind of the up-welling in pond 4, but smelled it downwind of that point. Their observations overall point inexorably to the up-welling in pond 4 as the source of that odour, and to pond 3 as the source of the somewhat less intense (but still strong) vomit and off-cheese odour. The fact that Mr Todoroski was prepared to concede that the notion of an odour having travelled from elsewhere to the ponds was “highly improbable” and “next to impossible, but I can’t rule it out”, and that Mr Jamieson acknowledged the “theoretical” possibility of such an occurrence on the assumptions put to him, does not make the hypothesis rational or reasonable. This hypothesis has been excluded on the evidence beyond reasonable doubt.

152 I am satisfied beyond reasonable doubt that the notion that Mr Jamieson and Mr Newman were unlucky enough to be standing in a pooled air mass on each occasion they visited the ponds throughout 15 April 2004 is irrational. Mr Stephenson only raised this possibility in cross-examination, in response to questions about why, if the odour was in a travelling air mass crossing the ponds, Mr Jamieson and Mr Newman could smell the odour downwind but not upwind of the up-welling in pond 4. This hypothesis is irreconcilable with the observations of Mr Jamieson and Mr Newman at the ponds. It is irreconcilable with their observations throughout 15 April 2004 about general wind movements. Moreover, the notion that an odorous air mass from outside the defendant’s premises could have somehow landed in the area of the ponds and remained there throughout the afternoon of 15 April 2004 patently lacks any rational foundation. This hypothesis has been excluded on the evidence beyond reasonable doubt.

153 For the reasons I have given above, I am satisfied beyond reasonable doubt that the only rational inference available is that the odours that Mr Jamieson and Mr Newman smelt while at the ponds were emitted from the ponds and the ponds alone (specifically from the surface of pond 3 and from the up-welling in pond 4).

Elimination of other potential odour sources

154 I accept Mr Jamieson’s and Mr Newman’s evidence about the odours they had previously smelt on the defendant’s environmental farm and at other premises in the locality. I also accept their evidence about the odours they smelt, where and when they smelt them, and the effect the odours had on them on 15 April 2004. I accept that Mr Newman could and did distinguish the odour he smelt at the paper mill clarifier tanks on 15 April 2004, and the dog faeces odour he described as having been emitted from pond 3 and the up-welling in pond 4. I also accept Mr Patterson’s evidence that he smelt a strong sickly sweet vomit odour that he identified as the odour he had smelt before at the defendant’s ponds and characterised as very similar to the odour he had smelt before at the defendant’s ponds.

155 I do not accept Mr Stephenson’s evidence, or the defendant’s submissions, that Mr Jamieson and Mr Newman were unable to eliminate other potential sources of odour by driving past that odour source with the windows down and the air conditioning off. The submission fails to appreciate the nature, strength and character of the odours smelt by Mr Jamieson and Mr Newman coming from the ponds (see above), and smelt elsewhere by them on 15 April 2004, being odours which they expressly identified as the same odours on many occasions, as well as the odours they smelt at and in the vicinity of other premises which were limited in intensity and extent, and of a different character.

156 I do not accept the defendant’s submission that the inspections by Mr Jamieson and Mr Newman were or could have been too late to identify that these other premises had or could have emitted the odours that Mr Jamieson and Mr Newman smelt at the defendant’s ponds, and in the other locations as I have identified. On the evidence, this is not a reasonable or rational hypothesis, and has been excluded beyond reasonable doubt for a number of reasons.

157 First, I am satisfied beyond reasonable doubt that the defendant’s ponds were emitting the odours smelt by Mr Jamieson and Mr Newman at those ponds on 15 April 2004. The vomit and off-cheese odours were the same as Mr Jamieson had smelt before at the defendant’s ponds. Mr Jamieson had also smelt the dog faeces odour before from the defendant’s irrigated wastewater. The pond water and irrigated water were the same, but for the addition of lime. Mr Newman had smelt the odour he identified as vinegary, foul, off-cheese and vomit before at the defendant’s ponds, but not the dog faeces odour. The dog faeces odour was extremely intense downwind of the up-welling in pond 4. It was obviously a very strong and distinctive odour. Mr Newman said it was the worst odour he had ever smelt on the defendant’s premises, when the odours he had smelt before were foul and made him feel like vomiting. Mr Jamieson and Mr Newman both identified that odour as the same odour they smelt in various locations throughout the day outside the defendant’s premises. At some locations, the smell remained sufficiently intense for Mr Newman to say that he drove into the smell. While Mr Newman’s agreed that it may be difficult to distinguish between types of faeces, he also said that he could distinguish the paper mill sewage odour from the odour he smelt at the ponds on 15 April 2004 – which I accept.

158 Secondly, neither Mr Jamieson nor Mr Newman identified that they had smelt such odours from any other premises at any time before 15 April 2004. The odours they smelt at or near other premises on 15 April 2004 were not only different odours from the odour they had smelt at the defendant’s ponds, but were limited in their intensity and extent.

159 Thirdly, in their travels on 15 April 2004, Mr Jamieson and Mr Newman covered a substantial area, encompassing all the potential odour sources they had identified.

160 Fourthly, Mr Jamieson smelt the odour at the home of Ms Collingridge and Mr Gordon. Mr Gordon said that when he was with Mr Jamieson, the same odour was there, as he had smelt when he got home at about 2.30pm, just not as strong. The same observation may be made about Mr Newman’s evidence when he attended at Mr Williamson’s home.

161 Fifthly, Mr Patterson recognised the odour he smelt at the Council’s Chambers as the same as, and with similar characteristics as, the odours he had smelt before at the defendant’s ponds.

162 The evidence of Mr Todoroski and Mr Bliss that one or other of them thought it possible that the Dairy Farmers factory and the paper mill might be able to generate vomit, off-cheese and dog faeces odours must be considered in the above context. In that context, this evidence does not lend weight to the submission that other potential odour sources had not been eliminated beyond reasonable doubt.

163 I do not accept the defendant’s submission that I am unable to be satisfied beyond reasonable doubt that the defendant’s ponds were the source of odours experienced in the area on 15 April 2004 because the investigation by Mr Jamieson and Mr Newman only ruled out alternative odour sources at the particular time they visited those premises. The evidence was not limited to the inspections by Mr Jamieson and Mr Newman on 15 April 2004. It included all the evidence to which I have referred above.

164 When the whole of that evidence is considered, I am satisfied beyond reasonable doubt that none of the potential alternative odour sources identified by Mr Jamieson and Mr Newman were the sources of the odours they smelt at the ponds (to the contrary the ponds were the source of those odours). Further, the ponds were also the source of the odours they smelt outside the defendant’s premises on 15 April 2004 (that is, the vomit and off-cheese odours, the vomit, off-cheese and dog faeces odours, and the concentrated dog faeces odour).

165 I do not accept Mr Stephenson’s identification of further alternative odour sources not considered by Mr Jamieson and Mr Newman. A sufficient reason for this conclusion is my rejection of Mr Stephenson’s evidence generally. With my other findings above, I am satisfied that the notion of some source for the relevant odours (vomit, off-cheese and dog faeces, vomit and off-cheese, and concentrated dog faeces) other that the defendant’s ponds has been negatived beyond reasonable doubt. If necessary, other reasons are that Mr Jamieson and/or Mr Newman were at or near all potential odour sources identified on Figure 4-1 of the March 2006 report of 15 April 2004 (including Schofield’s and Eaton’s farms and Abernethy’s Creek) and did not smell any odours out of the ordinary in those locations. Abernethy’s Creek (only mentioned in Mr Stephenson’s oral evidence) was identified by Mr Stephenson as a potential odour source only in the event of an overflow from the Bomaderry sewage treatment plant. Based on the inspections of Mr Jamieson and Mr Newman, the hypothesis of an overflow is not rational. Muller’s farm is not shown on Figure 4-1 as such, and was not mentioned by Mr Stephenson in his oral evidence when identifying odour sources. Mr Stephenson’s reference to farms generally was unhelpful, as he did not identify their location. The defendant’s environmental farm is very large, and occupies a large area north of Bolong Road. Mr Stephenson did not refer to the saleyards in his oral evidence. Further, he agreed in cross-examination that his odour livestock wheel was relevant only as an example of an odour wheel, and not as a possible identification of the odours smelt on 5 April 2004.

166 Hence, I am satisfied beyond reasonable doubt that other potential sources of odour in the locality did not cause the odours smelt by Mr Jamieson and Mr Newman on 15 April 2004 as found above (that is, the vomit and off-cheese, vomit and off-cheese and dog faeces, and concentrated dog faeces odours) either at the ponds or outside the defendant’s premises. The ponds caused those odours.

167 I do not accept Mr Stephenson’s evidence that the odours smelt by Mr Jamieson and Mr Newman throughout 15 April 2004 of off-cheese and vomit, off-cheese, vomit and dog faeces or concentrated dog faeces, may have mixed with odours from other sources, thereby creating an offensive odour off the defendant’s premises, when the odours generated within the defendant’s premises were not offensive. That suggestion is irreconcilable with the observations made by Mr Jamieson and Mr Newman on the defendant’s premises, and their observations off the defendant’s premises. I am satisfied beyond reasonable doubt that this hypothesis has been excluded on the evidence.

168 I do not accept the defendant’s submission that because Mr Jamieson and Mr Newman smelt the potential alternative odour sources and may be inferred each to have different perceptions and descriptions, their exclusion of those sources is necessarily unreliable (that is, one source not smelt by Mr Jamieson may have been emitting an odour smelt by Mr Newman at the ponds and elsewhere and the reverse). This submission is irreconcilable with their consistent evidence about odours smelt and not smelt, and with the nature, intensity and location of odours smelt and not smelt.

169 I do not accept that Mr Jamieson’s description in his note of the off-cheese, vomit and dog faeces odour at the defendant’s ponds as containing a grease trap component undermines any of these conclusions. Mr Jamieson and Mr Newman both smelt a grease trap odour in proximity to the Dairy Farmers premises on 15 April 2004. Mr Jamieson inspected those premises, and identified that the grease trap odour did not extend more than 100 metres from its source on those premises. The fact that Mr Newman did not smell an odour he described as grease trap at the defendant’s ponds is immaterial. Mr Jamieson’s evidence that the odour he smelt at the ponds (and which I have found was emitted by the ponds) was the same odour he smelt elsewhere on 15 April 2004 was reliable, and I accept it. Mr Newman’s evidence was overwhelmingly corroborative of Mr Jamieson’s evidence.

170 I do not accept the defendant’s submission that because Mr Jamieson and Mr Newman did not remain in the plume of odour they sourced to the defendant’s ponds on 15 April 2004 and trace that particular plume over the boundary of the defendant’s premises, I am unable to be satisfied beyond reasonable doubt that any odour emitted by the ponds, was also emitted from the defendant’s premises. My reasons are those given above.

171 The prosecutor and defendant both prepared tables identifying the various odour descriptions. Some residents identified the odour they smelt as having faeces characteristics (Ms Smith, Mr Ash, Mr Mawer). Others said it had acidic, vomit, sharp, sickly, characteristics (Ms Russell, Ms Collingridge, Ms Walker – close to a vomit smell, Ms Davidson, Mr Gordon). Mr Marshall characterised the smell quite differently (blood and bone). Ms Taylor’s description was general (foul, stale milk, smelly sandshoes, vile, sour). Ms Anstiss’s description was vinegar with a horrible rancid character (not vomit or off-cheese or dog faeces). Ms O’Neill’s was rotting garbage and sewage. Mr Williamson thought it a rotting, sickly, sweet vegetation smell. Mr Mawer also called it a sickly silage smell.

172 The prosecutor submitted that the residents’ evidence corroborated the observations of Mr Jamieson and Mr Newman. The defendant submitted that the variety of odour descriptions pointed to different odour sources. I do not accept the defendant’s submission. The different descriptions are unsurprising given the nature of odour perception. For example, Ms Collingridge and Mr Gordon lived together yet gave different descriptions of the odour they smelt. It can readily be inferred that they smelt the same odour, albeit at different times. Mr Gordon’s description of the odour differed from Mr Jamieson’s description, even though they were together at one time when they smelt the odour. Mr Newman and Mr Williamson gave different descriptions of the odour they smelt even though they were together at one time when they smelt the odour. They also both said, and I accept, that this was the same odour they each smelt earlier.

173 The residents reported odours on 14 April 2004 when the pumping operation (I accept) commenced on 15 April 2004. The defendant relied on this as an anomaly, supporting the hypothesis of an alternative odour source. I disagree. That fact is consistent with Mr Bliss’s description of odorous materials in the wastewater effusing through the surface generally, and the more concentrated odours that Mr Jamieson and Mr Newman smelt at the ponds having been exacerbated by the pumping.

174 As the residents did not attend the defendant’s ponds on 14 or 15 April 2004 I have based my ultimate findings on the evidence of Mr Jamieson and Mr Newman, and those residents who occupied dwellings where Mr Jamieson or Mr Newman were present and smelt the same odour the resident smelt on 15 April 2004. This should not be taken to indicate that I do not accept the evidence of other persons who gave evidence about odours they smelt on 14 and 15 April 2004, or that I have left open the possibility that another odour source caused odours on that day that remained in the locality and were smelt by Mr Jamieson and Mr Newman on 15 April 2004. For the reasons given above, that is not so. Nevertheless, to the extent that those persons (including Mr Gordon and Mr Williamson) attributed the odour they smelt to the defendant, I do not place weight on those attributions.

175 While I have taken into account the evidence of Mr Thompson, Mr Lawer, the records of interview and the facsimiles from Mr Hill, none of those matters, in my view, undermine my findings as set out above.

176 I have not given weight to Mr Jamieson’s subsequent use of the weather data from one of the defendant’s meteorological stations in reaching this state of satisfaction. However, I do not accept that Mr Jamieson’s reading of the weather data was unreliable because he did not have meteorological training. I am satisfied that the necessary training to read the defendant’s weather data was relatively limited, and that Mr Jamieson had sufficient training to interpret that data to ascertain whether it was consistent or inconsistent with the observations he made on 15 April 2004. I simply do not think it necessary for me to rely on that evidence to support my findings.

177 Further, I have not given weight to the admissions by Mr Hill relied on by the prosecutor. The prosecutor submitted that the conversations with Mr Hill were admissions on behalf of the defendant, and established that starting the recirculation of effluent had caused an odour problem. The prosecutor observed that: - (i) the defendant’s set of factual assumptions (Exhibit 26) admitted a capacity for odours on start-up, (ii) Professor Greenfield had recorded a note as part of his instructions consistent with Mr Hill having said the start-up generated odour, (iii) Mr Hill accepted the thrust of the conversation with Mr Newman in the interview, and only later sought to qualify that response, and (iv) it was significant that the defendant had not called Mr Hill to give evidence, but had otherwise called evidence ( Jones v Dunkel and Another (1959) 101 CLR 298 at 308, 312, 320 – 321, Fabre v Arenales and Another (1992) 27 NSLWR 437 at 449 – 450, Weissensteiner v The Queen (1993) 178 CLR 217 at 227 – 228). The defendant replied that an adverse inference could not be drawn against the defendant or prosecutor by reason of it not having called Mr Hill ( R v OGD (1997) 45 NSWLR 744, RPS v The Queen (2000) 199 CLR 620, Azzopardi v The Queen (2001) 205 CLR 50, R v Dover [2001] NSWCCA 412, Dyers v The Queen (2002) 210 CLR 285, and Regina v LTP [2004] NSWCCA 109 at [98] – [99]).

178 I accept the defendant’s submission that I may draw no inference adverse to the defendant or prosecutor from the fact that Mr Hill was not called to give evidence. While I accept that Mr Newman and Mr Jamieson tried to give an accurate record of the relevant parts of the conversations they had with Mr Hill, the content of those conversations, considered as a whole, is ambiguous and of insufficient weight for me to rely upon. I also accept the defendant’s submission that the note of Professor Greenfield about Mr Hill having smelt an odour on start-up is likely to be hearsay on hearsay, and can be given no weight.

Offensive odours

179 Having regard to the definition of “offensive odour” in the POEO Act, I am satisfied beyond reasonable doubt that the following odours emitted from the defendant’s ponds to locations outside the defendant’s premises on 15 April 2004 were offensive odours as defined: - (i) in the morning near 80 Hannigans Lane – the vomit and off-cheese odour smelt by Mr Jamieson which was strong enough to upset his stomach, and the strong vomit odour smelt by Mr Newman which caused him to gag, (ii) in the park on the corner of Tallayang Street - the vomit and off-cheese odours smelt by Mr Jamieson and Mr Newman which upset Mr Jamieson’s stomach, (iii) at Nita Place - the vomit and off-cheese odour and vomit, off-cheese and dog faeces odour smelt by Mr Jamieson (which upset his stomach), and the vomit odour and concentrated dog faeces odour smelt by Mr Newman which made him strongly react, (iv) in the afternoon – the vomit and off-cheese odour smelt by Mr Jamieson in Karowa Street, which brought water to his mouth, (v) the vomit, off-cheese and dog faeces odour smelt by Mr Jamieson in Bunberra Street – which upset his stomach, and the odour smelt by Mr Gordon from 2.00pm that afternoon in the same location, (vi) in the afternoon – the concentrated dog faeces odour smelt by Mr Newman on Cambewarra Road, on the corner of Cambewarra Road and Meroo Street, on Railway Street, and on Meroo Street, which made him queasy and want to throw up, (vii) in the later afternoon – the fairly strong vomit and off-cheese odour smelt by Mr Jamieson on Bolong Road, and (viii) in the late afternoon – the vomit odour smelt by Mr Newman when in Karowa Street talking to Mr Williamson, and the odour smelt by Mr Williamson throughout 15 April 2004.

180 I am satisfied beyond reasonable doubt that these odours were all offensive odours as defined which were emitted from ponds 3 and 4, and that such emissions had been caused by the defendant’s activities of storing its wastewater in those ponds. Ponds 3 and 4 were part of premises occupied by the defendant to which a licence applied and under authority of which scheduled activities were carried on. These odours were experienced by the people smelling them outside the defendant’s premises as odours that, by reason of their strength, nature, character and quality, interfered unreasonably with their comfort and repose. For the same reasons, those odours were likely to interfere unreasonably with the comfort and repose of any other person who may have smelt those odours outside the defendant’s premises. To the extent that the defendant submitted that it would be a “long bow” to find some of the odours experienced on 15 April 2004 to be “offensive odours” within the meaning of the POEO Act, I do not accept that submission with respect to the odours I have identified.

Defendant’s key submissions

(1) The timing of the odour (that is, that odours were smelt on 14 April 2004, and the ponds not inspected until the following day, taken with Mr Thompson’s evidence about no odour being present on 14 April, Professor Greenfield’s and Mr Bliss’s evidence about the unlikelihood of a pond wide odour source starting and stopping quickly, and pumping having started on 15 April): - Mr Thompson’s evidence about odours from the defendant’s premises, in the context of his evidence overall, is immaterial. The defendant’s characterisation of Mr Bliss’s evidence was an over-simplification and inaccurate. Mr Bliss’s hypothesis of the point source for the most intense odour (the up-welling created by the pumping on 15 April) and a more general source for the less intense odour (the ponds surface or part thereof generally) was plausible and consistent with the actual observations about odours from the ponds (including Mr Thompson’s evidence about more intense odours in hot weather). Professor Greenfield’s evidence, taken as a whole, was not inconsistent with this explanation for the reasons I have given.

(2) People on site on 14 and 15 April 2004 did not smell the odour (Mr Lawer and Mr Thompson in particular): - There is no reason to expect that Mr Lawer would have smelt the more intense odour when the pumping commenced after his delivery. As to the more general odour, Mr Lawer was the only witness never to have smelt an unpleasant odour from the ponds – but he was not attending the premises for that purpose, was wearing a splash mask and routinely dealing with a substance known for corroding mucous membranes in the nose. There is also no reason to expect that Mr Thompson would have smelt an odour on 14 April 2004 given his routine attendance at the premises.

(3) The vastly differing odour descriptions suggest different odour sources were in play: - As explained above, the different descriptions are insignificant and not unexpected.

(4) Other reasonable hypotheses consistent with innocence have not been negatived beyond reasonable doubt ( Doney v The Queen (1990) 171 CLR 207 at 211, Shepherd v The Queen (1990) 170 CLR 573 at 578-580, Environment Protection Authority v All Chrome Shop Pty Ltd (1996) 89 A Crim R 474 at 483, Regina v Ahmad [2002] NSWCCA 265 at [12], Plomp v The Queen (1963) 110 CLR 234 at 252): - Given the evidence which I have accepted, I am satisfied beyond reasonable doubt that there is no reasonable hypothesis available consistent with the defendant’s innocence.

K. Conclusion

****************************

Citations

Environment Protection Authority v Shoalhaven Starches Pty Ltd [2006] NSWLEC 496

Most Recent Citation

Cases Citing This Decision

3

Environment Protection Authority v Bowport All Roads Transport Pty Limited [2009] NSWLEC 103

Moore v Corowa Shire Council [2009] NSWLEC 59

Environment Protection Authority v Shoalhaven Starches [2006] NSWLEC 685

Cases Cited

19

Statutory Material Cited

1

R v Dover [2001] NSWCCA 412

R v LTP [2004] NSWCCA 109

Luxton v Vines [1952] HCA 19

Actions

Download as PDF Download as Word Document

CITATION:	Environment Protection Authority v Shoalhaven Starches Pty Ltd [2006] NSWLEC 496
PARTIES:	PROSECUTOR Environment Protection Authority DEFENDANT Shoalhaven Starches Pty Ltd
FILE NUMBER(S):	50011 of 2005
CORAM:	Jagot J
KEY ISSUES:	Prosecution :- Emission of offensive odour from premises to which licence applies - whether satisfied beyond reasonable doubt that defendant caused the emission of offensive odour
LEGISLATION CITED:	Protection of the Environment Operations Act 1997 s 129, s 257, s 258, s 261
CASES CITED:	Allied Interstate (Qld) Pty Limited v Barnes (1968) 118 CLR 581; Azzopardi v The Queen (2001) 205 CLR 50; Cala Homes (South) Limited and Others v Alfred McAlpine Homes East Limited [1995] FSR 818; Doney v The Queen (1990) 171 CLR 207; Dyers v The Queen (2002) 210 CLR 285; Environment Protection Authority v All Chrome Shop Pty Ltd (1996) 89 A Crim R 474; Fabre v Arenales and Another (1992) 27 NSWLR 437; Henderson v Gosford Meats Pty Ltd (1986) 58 LGRA 152; Jones v Dunkel and Another (1959) 101 CLR 298; Mule v R (2005) 221 ALR 85; Plomp v The Queen (1963) 110 CLR 234; R v Dat Quoc Ho (2002) 130 A Crim R 545; R v Dover [2001] NSWCCA 412; R v Duncan (1981) 73 Cr App Rep 359; R v OGD (1997) 45 NSWLR 744; Regina v Ahmad [2002] NSWCCA 265; Regina v LTP [2004] NSWCCA 109; RPS v The Queen (2000) 199 CLR 620; Shepherd v The Queen (1990) 170 CLR 573; Weissensteiner v The Queen (1993) 178 CLR 217
DATES OF HEARING:	15/05/2006, 16/05/2006, 17/05/2006, 18/05/2006, 22/05/2006, 23/05/2006, 24/05/2006, 25/05/2006, 29/05/2006, 30/05/2006, 31/05/2006, 01/06/2006, 05/06/2006, 06/06/2006
DATE OF JUDGMENT:	09/06/2006
LEGAL REPRESENTATIVES:	PROSECUTOR Mr S Rushton SC SOLICITORS Department of Environment & Conservation DEFENDANT Mr I Lloyd QC SOLICITORS Kirkby & Associates

[2006] NSWLEC 496

06/09/2006