Gard v Gibsons Limited
[2004] TASSC 108
•17 September 2004
[2004] TASSC 108
CITATION: Gard v Gibsons Limited [2004] TASSC 108
PARTIES: GARD, Robin Michael
GARD, Norma
v
GIBSONS LIMITED
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FCA 115/2003
DELIVERED ON: 17 September 2004
DELIVERED AT: Hobart
HEARING DATES: 2 June 2004
JUDGMENT OF: Slicer, Evans and Blow JJ
CATCHWORDS:
Administrative Law - Appeals from administrative authorities - Statutory appeals from administrative authorities to Courts - Appeal on question of law - "Unlawfully" - Whether defined as "without lawful justification" or "contrary to law" – Whether existence of "deemed permit" provides bar to proceedings alleging nuisance.
Land Use Planning and Approvals Act 1993 (Tas), s64.
Environmental Management and Pollution Control Act 1994 (Tas), ss48 and 53.
Associated Minerals Consolidated Limited v Wyong Shire Council (1974) 48 ALJR 464, 4 ALR 353; In re The Environmental Management & Pollution Control Act 1994 (1999) 8 Tas R 419, followed.
South Australia v Tanner (1989) 166 CLR 161, applied.
Metropolitan Asylum District v Hill (1881) 6 App Cas 193, considered.
Aust Dig Administrative Law [109]
Environment and Planning – Pollution – Air pollution – Offences – Particular offences – "Unlawfully causing an environmental nuisance" – "Unlawfully" – Effect of permit under planning legislation.
Environmental Management and Pollution Control Act 1994 (Tas), s53(1) and Sch6, cl 3(1).
In re The Environmental Management and Pollution Control Act 1994 (1999) 8 Tas R 419, followed.
Aust Dig Environment and Planning [363]
REPRESENTATION:
Counsel:
Appellants: S B McElwaine and T J Williams
Respondent: P L Jackson
Intervener: S J Allston
Solicitors:
Appellants: Gunson Williams
Respondent: Jackson & Tremayne
Intervener: Director of Public Prosecutions
Judgment Number: [2004] TASSC 108
Number of Paragraphs: 49
Serial No 108/2004
File No FCA 115/2003
ROBIN MICHAEL GARD and NORMA GARD v GIBSONS LIMITED
REASONS FOR JUDGMENT FULL COURT:
SLICER J
EVANS J
BLOW J
17 September 2004
Orders of the Court
That the determination of the Tribunal be set aside.
That the name of the respondent to the application made to the Tribunal be amended to Gibsons Limited.
That the matter be remitted to the Tribunal to be determined in accordance with law.
Serial No 108/2004
File No FCA 115/2003
ROBIN MICHAEL GARD and NORMA GARD v GIBSONS LIMITED
REASONS FOR JUDGMENT FULL COURT:
SLICER J
17 September 2004
The question raised on this appeal is whether a person has lawful justification for the committing of a nuisance if, at the time, that person has a land use permit which has not been breached.
The respondent operated a processing plant used for the production and sale of stock feed from grain, fish or meat meal. Production commenced in 1981 and at all material times was conducted in accordance with a licence issued in that year under the Environment Protection Act 1973 as varied by a "deemed permit". The appellants moved onto adjacent land in 1993 where they continued to conduct a boat building business. They claim that since 1995 they have experienced problems with odour and vapours emanating from the processing plant and in July 2001, applied to the Resource Management and Planning Appeal Tribunal ("the Tribunal") for:
"1 An injunction restraining the Respondent from carrying out the processing of fish meal or alternatively injunction in terms to prevent the Respondent from carrying out its activities without ensuring that the amenity of the Applicant's property at 22 Maxwells Road is not effected by odour, dust or noise.
2 An order requiring the Respondent to make good.
3 Compensation.
4 Costs."
The application was made pursuant to the Land Use Planning and Approvals Act 1993 ("the LUPA Act"), s64, which permits enforcement for contravention of Pt4 of that Act. Relevant to this appeal they also claimed:
"… that the activities conducted by the Respondents constitute environmental harm or environmental nuisance contrary to Section 64 [sic] of the Environmental Management & Pollution Control Act"
as a basis for the grant of the orders sought. The addition of that basis was a repetition of an earlier ex parte application, dated 15 March 2001, pursuant to the Environmental Management and Pollution Control Act 1994 ("the EMPC Act") s48, when the order sought was:
"stop pollution being emitted over our land from Plant Bio Filter and airborne dust"
with the claim of:
"odour nuisance, gas type odour, punjent [sic] smell & stinking smell"
which, as of the date of the application, had occurred on:
"115 days in past 12 months."
That application was either amended by, or subsumed into, the wider application of 10 July 2001.
The matter was determined by the Tribunal on a procedural basis. It treated the application as one made pursuant to the EMPC Act, s48, and the allegations as one of:
"… causing an environmental nuisance in contravention of Section 53 of [the EMPC Act] by production of odour affecting a nearby workplace"
but effectively refused to make the order sought by not permitting an order substituting Gibsons Limited for Pivot Aquaculture, the corporation originally named in the application, on the ground that:
"the principal proceedings could not succeed against Gibsons Limited."
The Tribunal adopted this course at the behest of the parties. Hindsight suggests that a different course might have been apposite since there remains the other matters raised in the July application which include claimed breaches of the permits and questions concerning their validity. Further, it would be possible for this Court to uphold the appeal on the issue of substitution without resolving the primary issue. Nevertheless that issue has been identified and ultimately requires determination as one of general principle and, for my part, I will deal with this appeal on the basis agreed by the parties. In its written submissions, the respondent states that it:
"… does not oppose the substitution of Gibsons Limited as Respondent to this appeal but is not to be taken to thereby concede the application to the Resource Management and Planning Appeal Tribunal which led to the decision ...".
Basis of appeal
The appeal from the Tribunal was rejected by the learned Chief Justice in his reasons for judgment in [2003] TASSC 120. His Honour noted that a condition relating to odour control and the processing of fish meal had been deleted in June 1998 and replaced with measures required to comply with objectives, but which "did not set any quantitative limits as to the amount or extent of odour produced", and concluded therefore, at par10:
"… that the use of the land for the production of, inter alia, fish meal without any limitation on the amount or extent of odour produced was a use which the proprietors were entitled to continue, notwithstanding that it might later come into conflict with a requirement under the planning scheme that it be used only for light industry. A conformity notice was the remedy should that conflict become intolerable."
The issue, as stated by the learned Chief Justice, was masked by the method adopted by the parties for its resolution. The issue raised by the appellants was interference with amenity affected by "odour, dust or noise", and the allegation was of "causing an environmental nuisance in contravention of section 53 of [the EMPC Act]". That cause was determined by the Tribunal through a procedural mechanism which, in retrospect, made it more difficult to discern the issue and permit detailed examination on review.
The grounds of appeal state:
"1 His Honour erred in law in determining that any environmental nuisance which had been caused by Gibsons Ltd was not unlawful, in so far as that determination was based upon licence number 2625 issued in 1981 under the Environment Protection Act 1993 and then the subsequent operation on that licence of clause 3(1) of Schedule 6 of the Environmental Management and Pollution Control Act 1994.
2 His Honour erred in law in determining that the deemed planning permit by virtue of the said Schedule 6 could make lawful activities unlawful under the Environment Management and Pollution Control Act 1994.
3 His Honour erred in law in that he took into account a matter irrelevant to the determination of the proceeding before him, namely whether or not the respondent was engaging in the activity or use of 'light industry' pursuant to the City of Clarence Eastern Short [sic] (Area 2) Planning Scheme 1986.
4 That His Honour erred in law in that he took into account a matter irrelevant to the determination of the proceeding before him, namely the existence and/or extent of any non conforming use right of the respondent.
5 His Honour erred in law in finding that compliance by the respondent with the terms of its permit for the use of the land constituted a lawful justification for the purposes of section 53 of the Environmental Management and Pollution Control Act 1994.
6 His Honour erred in law in that he failed to find that section 53 of the Environmental Management and Pollution Control Act 1994 operated, in respect of the activities of the respondent, independently from whether or not the respondent was complying with the provisions of a permit issued to it pursuant to the provisions of the Land Use Planning and Approvals Act 1993.
7 In the alternative:
That His Honour erred in ruling that the Respondent was not required to conduct its activities within the definition of light industry on the basis such activities constituted a lawful pre‑existing use or otherwise. Activities exceeding the definition of light industry that were conducted prior to the operative date in Schedule 6 of the Environmental Management & Pollution Control Act 1994 could not have constituted lawful pre‑existing use as at that time and at all other material times such activities exceeded the definition of light industry (which was the same) under each applicable planning scheme."
Basis of application
The application seeking the making of an ex parte order pursuant to the EMPC Act, s48, claimed that the respondent was a person who had engaged in "conduct in contravention of [the EMPC Act]" or "caused environmental harm by contravention of [the EMPC Act]" (s48(1)(a) and (c)), namely s53. That section relevantly creates an offence of the conduct of "a person who unlawfully causes an environmental nuisance" (s53(2)) and provides for a fiscal penalty. The Attorney-General has intervened in support of the appellants' contentions because of the wider implications of the issue.
It is assumed, for the purpose of this appeal, that the conduct complained of might be established and shown to be a contravention of the EMPC Act, s53.
Licence and permits
The respondent held a licence (No 2625) issued in 1981, under the Environment Protection Act. The original licence had been replaced by a "deemed permit" under the LUPA Act which did not necessarily permit the causing of an environmental nuisance. The question was not whether the existence of a permit operated as a defence to the commission of an alleged nuisance, but whether the Tribunal had jurisdiction to determine concurrent or competing matters.
The "deemed permit" permitted the operation of the plant within a general planning and use scheme. It might be that the permit made the actual conduct of the operation and its consequences "not unlawful" because the operation was not a consequence of a pre-existing lawful right and if the evidence established compliance with the terms of the permit, made the operations "not unlawful". But such a conclusion was not inevitable, especially absent consideration of the evidence which the respondents may have been able to adduce, a matter noted by the learned primary judge. What can be discerned from the issue and terms of the "deemed permit" is the following:
(1)the respondent is entitled to conduct a processing factory which includes the processing of fish meal and has conducted such use since 1981;
(2)the respondent operated a scheduled premises by licence issued under the Environment Protection Act which became a permit under the LUPA Act in 1996;
(3)the terms of the permit allowed the operation of premises for the "production of stock feeds from grain, fish meal and meat meal" within a defined quota;
(4)the LUPA Act outlined the conduct of the operation but it did not provide complete protection for misuse of the permit which remained subject to other legislation which included health, safety and environmental requirements. The permit might have afforded a defence to their application, but did not exempt the respondent from consideration of their effect.
Concurrence
The purpose of the EMPC Act is to "provide for the management of the environment and the control of pollution" in Tasmania and co-exists with the LUPA Act which is concerned with planning and permitted use. That there is tension between the enactments is clear from their general terms and objectives. The EMPC Act, s3, defines an environmental nuisance as:
"(a)the emission of a pollutant that unreasonably interferes with, or is likely to unreasonably interfere with, a person's enjoyment of the environment; and
(b)any emission specified in an environment protection policy to be an environmental nuisance."
Breach of a condition imposed as a planning or use measure might itself establish "unreasonableness", but compliance might not automatically provide lawfulness. The issues raised by concurrence were considered at common law to be those of prescription and lawfulness, with the result that the application of the law of nuisance was the same, irrespective of whether the location was that of a town or a mining, manufacturing or rural district. The outcome was that "so far as concerns public nuisance the law appears to be the same for all places" (Russell on Crime 11 ed, Vol2, 1611 citing Sturges v Bridgman (1879) 11 Ch D 852 and St Helens Smelting Co v Tipping (1865) 11 HLC 642; 35 LJQB 66). The previous doctrines of acceptance of an existing use (Bamford v Turnley (1862) 3 B & S 62; 31 LJQB 286) and place of trade (Salvin v Brancepeth Coal Co (1874) LR 9 Ch App 705; Attorney-General v Cole [1901] 1 Ch 205; Cavey v Ledbitter (1863) 13 CB 470) were not regarded as permitted defences. The resolution of permission and public nuisance was that of reasonableness, a term used in modern legislation. The law was as stated by Russell (supra) at 1612 that:
"Where a locality is devoted to a particular trade or manufacture carried on by traders or manufacturers in a particular and established manner not constituting a public nuisance, judges and juries would be justified in finding, and may be trusted to find, that the trade or manufacture so carried on is not a private or actionable wrong. Sturges v Bridgman (1879) 11 Ch D 85, 865; quoted and approved in Polsue v Rushmer [1906] 1 Ch 234, 247; affirmed [1907] AC 121. But on proceedings for pubic nuisance, whether by noise or effluvia or unwholesomeness, the time during which the business has been carried on or the reasonableness of the steps taken to avoid noise or smell do not afford any criterion for deciding whether the trade is or is not a public nuisance."
Licence did not excuse the causing of a public nuisance (R v Cross (1826) 2 C & P 483; Brown v Eastern and Midlands Ry (1892) 22 QBD 391; R v White (1757) 1 Burr 333). General authorisation by statute did not necessarily excuse a public nuisance (Att-Gen v Gas Light and Coke Co (1887) 7 Ch D 217; Midwood & Co v Manchester Corporation [1905] 2 KB 597; Colwell v St Pancras Borough Council [1904] 1 Ch 707). Legislation affording licence permitted the operation, but not necessarily unreasonable usage (Hammersmith Ry v Brand (1868) LR 4 HL 171; LB & SCR v Truman (1885) 11 App Cas 45; Canadian Pacific Ry v Parke [1899] AC 535). The right of establishment and operation of a trade, public facility or service granted by Parliament did not necessarily provide immunity from a general law. In Metropolitan Asylum District v Hill (1881) 6 App Cas 193 (a decision approved by the Privy Council in Canadian Pacific Ry (supra) and Truman (supra)), Lord Watson, in considering the operation of a hospital incorporated by the Metropolitan Poor Act 1867 and its effect on the neighbourhood, said in his speech at 212 – 213:
"I do not think that the Legislature can be held to have sanctioned that which is a nuisance at common law, except in the case where it has authorized a certain use of a specific building in a specified position, which cannot be so used without occasioning nuisance, or in the case where the particular plan or locality not being prescribed, it has imperatively directed that a building shall be provided within a certain area and so used, it being an obvious or established fact that nuisance must be the result. In the latter case the onus of proving that the creation of a nuisance will be the inevitable result of carrying out the directions of the Legislature, lies upon the persons seeking to justify the nuisance. Their justification depends upon their making good these two propositions ¾ in the first place, that such are the imperative orders of the Legislature; and in the second place, that they cannot possibly obey those orders without infringing private rights. If the order of the Legislature can be implemented without nuisance, they cannot, in my opinion, plead the protection of the statute; and, on the other hand, it is insufficient for their protection that what is contemplated by the statute cannot be done without nuisance, unless they are also able to shew that the Legislature has directed it to be done. Where the terms of the statute are not imperative, but permissive, when it is left to the discretion of the persons empowered to determine whether the general powers committed to them shall be put into execution or not, I think the fair inference is that the Legislature intended that discretion to be exercised in strict conformity with private rights, and did not intend to confer license to commit nuisance in any place which might be selected for the purpose."
These doctrines have survived more modern circumstances of trade and expectations of amenity, although the distinction between public and private rights of an objector has become a significant factor in resolution of competing legislative provisions and licence (Attorney-General v PYA Quarries Ltd [1957] 2 QB 169; Walsh v Ervin [1952] VLR 361; Silservice Pty Ltd v Supreme Bread Pty Ltd (1950) 50 SR NSW 127) although in some instances they have been subsumed into the law of negligence (Nova Mink Ltd v TCA (1951) 2 DLR 241). The conceptual approach has been adopted by Parliament in its enactment of the LUPA Act and the EMPC Act. The exception provided by the EMPC Act, s44(7):
"(7) An environment protection notice has effect even if it is inconsistent with a permit in force under the Land Use Planning and Approvals Act 1993 and the permit has no effect to the extent of the inconsistency."
has no direct effect here but demonstrates that the Parliament did not intend to derogate from public rights. The failure of the Executive, as claimed here to issue a "protection notice" does not preclude the right of the appellants to claim infringement of a public right afforded to their neighbourhood. They were asserting breach of a public, not a private, right. The position is as stated by Lord Wilberforce in Associated Minerals Consolidated Limited v Wyong Shire Council (1974) 48 ALJR 464; 4 ALR 353 when, in delivering the advice of the Privy Council, he said, at 470 (365):
"The law on this subject, which was correctly applied by the learned judge, contains two propositions. First, even in cases where relief is being sought by the Attorney-General in the public interest (and the respondent Council, acting under s 587 of the Local Government Act 1919, is placed in a similar position), the granting of an injunction is discretionary (Attorney-General v Johnson (1819) 2 Wils Ch 87; Attorney-General v Sheffield Gas Consumers Co (1853) 3 De G M & G 304, and Attorney-General v Newry (No 1) R D C [1933] NI 50).
Secondly, however, it is necessary to take into account that the plaintiff is acting on behalf of the public and in the public interest. It is necessary, therefore, to base the granting or denial of equitable relief on broader grounds than would normally apply as between private citizens. As was said in Attorney-General v Newry (No 1) R D C the courts are somewhat slower to deny the Attorney-General, as the custodian of the public rights, relief on this ground (sc delay) than in the case of an individual (lc at p 71). The injury to a public interest by denial of relief, its extent and degree of irremediability, must be weighed against any loss which the defendant may have sustained by the plaintiff standing by while the defendant incurs expense or, if such is the case, misleading the defendant into supposing that its activities were or would be permitted (see Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221 at 240; Brickworks Ltd v Warringah Corporation (1963) 108 CLR 568)."
The co-existence of statutory rights and objections was recognised by the Privy Council in Associated Minerals Consolidated Limited v Wyong Shire Council (supra). In that case the advice provided by the Council in relation to the issue of the operation of mining and planning legislation included, at 467 (359 – 360):
"Both Acts apply or are capable of being applied with complete generality to land in the State of New South Wales. Can they, in relation to a given piece of land, co-exist? In their Lordships’ opinion they clearly can and do. The Acts have different purposes, each of which is capable of being fulfilled. The purpose of the mining legislation is to enable persons to acquire a legal right or title to enter upon, to prospect, and ultimately to mine, land in the State. It also — and this is important — regulates the conditions under which, as between private citizens, rights may be acquired and used. In relation to the subject lands, it provides the title of mining enterprises to enter upon and to work land of the Crown. The planning legislation, ie Pt XII A of the Local Government Act 1919, is in its turn capable of being applied to all land in the State, including Crown land, without exception. It enables restrictions as to use to be imposed upon all such land. Not only can such legislation restricting user co-exist with the rights of persons, whether derived from the Crown or from private owners, to mine land, but the whole purpose which underlies the planning legislation would be defeated if it did not. Planning, by its nature, presupposes the possibility of competing uses for land and endeavours to regulate these in the public interest. The Local Government Act itself clearly points toward the generality of its application, and away from any suggestion that there exists a large area of exclusion from it. The definition of land contained in Pt XII A, s 342 B is stated to include any estate or interest in land and any right in or affecting land and also all lands of the Crown. There is no indication any anywhere in this Part of an intention to exclude land used, or usable, for mining, or to reserve the application of mining legislation. Section 10 of the Act sets out a list of enactments which are stated not to be affected by the Act: the Mining Act 1906 is not mentioned, and, while it is true that this section does not form part of Pt XII A, its application is general and it has several times been amended since Pt XII A was introduced in 1945, without adding the Mining Act 1906 to the list of preserved statutes. It mentions some statutes, eg the Liquor Act 1912 — which, in spite of preservation, must clearly operate subject to planning restrictions."
The same principle of concurrence was applied in South Australia v Tanner (1989) 166 CLR 161. In that case the High Court was required to consider a claimed inconsistency between a planning legislation (Planning Act 1982 (SA)) and regulations governing the operation of a service (Waterworks Act 1932 (SA), Waterworks Regulations 1974 (SA)). In the opinion of the majority, Wilson, Dawson, Toohey and Gaudron JJ, stated at 171, there was:
"… no reason to suppose that the South Australian legislature intended sub silentio to vary the operation of the stringent controls imposed under the authority of the Waterworks Act. The Planning Act is to be read in the light of the maxim generalia specialibus non derogant. It follows, therefore, on the proper construction of the Planning Act, that s47(6) does not have the effect that a consent granted pursuant to its provisions overrides the prohibition imposed by reg37.2.1. Such a consent removes the obstacle to development derived from s47(5) of the Planning Act, but it does not confer a positive authority to proceed regardless of any other law."
The issue, as presented to the Tribunal and the learned primary judge, was that one legislative provision operated to the exclusion of another and, accordingly, deprived the Tribunal of jurisdiction. Such was not the case and the method chosen by the parties to determine the question obscured the relevant principles. Lawfulness or otherwise depended on evidence not jurisdiction. That question was as stated by Wright J in the matter of In re The Environmental Management & Pollution Control Act 1994 (1999) 8 Tas R 419 at 430, in terms of justification rather than licence, namely:
"The ultimate question will always be, do the established facts bring the case within the definition of an environmental nuisance, and, if so, has it also been shown that the alleged offender or offenders have no lawful justification for causing that nuisance?"
In Wright J's opinion, stated at 429, there was a distinction between a right to carry out an activity generally and a statutory shield in its performance when he agreed with the submission that the legislative scheme of the LUPA Act was:
"… entirely consistent with the scheme and provisions of the Act that the adverb 'unlawfully,' meaning 'without lawful justification,' should appear in Section 53 and not be included in Section 50 or 51. Given the extremely broad definition of environmental harm contained in Section 5(1) of the Act, it is apparent that the acts or omissions that may answer the definition of environmental nuisance fall within a much broader range of everyday activity, both commercial and domestic, than that contemplated by the definitions of serious or material environmental harm. In these circumstances, it is appropriate that persons engaging in such activity should be afforded protection from criminal liability where the acts or omissions in question, although not relevant to the limited defences afforded by the Act in circumstances of emergency &c, are otherwise lawfully justified."
In his opinion expressed at 430 (par14):
"Merely because it has been shown that a general restriction upon noise levels in residential areas, imposed by statute or regulation, has not been exceeded, this does not, per se, establish that an environmental nuisance has not been created. The existence or otherwise of an environmental nuisance at any relevant time is a mixed question of law and fact. If a tribunal, properly seized of the question, has admissible and relevant evidence presented before it establishing circumstances upon which it could conclude that an environmental nuisance, as statutorily defined, has been created or continued by the offender, it will be entitled to find a complaint under s53(2) proved. The existence of standards and opinions of experts based thereon may provide useful material for such a tribunal to consider, but such evidence will not necessarily be determinative of the judgment to be made. The ultimate question will always be, do the established facts bring the case within the definition of an environmental nuisance, and, if so, has it also been shown that the alleged offender or offenders have no lawful justification for causing that nuisance?"
While his Honour accepted, at par15:
"… that the existence of a permit or authorisation lawfully issued by a responsible official allowing the creation or continuation of an environmental nuisance would defeat any prosecution"
such remains a question dependent on evidence.
Following the decision in In re The Environmental Management & Pollution Control Act 1994, the EMPC Act was amended by the insertion of s55A (56 of 2000):
"55A ¾ (1) In any proceedings under this Act, if it is alleged that a person has contravened section 50, 51, 51A or 53, it is a defence if ¾
(a)maximum levels for the particular pollutant have been set in a State Policy or an environment protection policy or as a condition in a permit, and it is shown that those levels were not breached; or
(b)a State Policy, environment protection policy or condition in a permit provides that compliance with specified provisions of a State Policy or environment protection policy or specified conditions in a permit will satisfy the general environmental duty and it is shown that those provisions or conditions were complied with; or
(c)it is shown that all measures specified in a code of practice made and approved in accordance with the regulations as meeting the requirements for compliance with the general environmental duty have been taken."
A permit can provide a defence:
(a)where there has been emission of a pollutant which has been within the level set by the permit and there has otherwise been no breach of the terms;
(b)the emission occurred in the course of the use or development of land governed by a permit which provided for specific terms referable to the particular operation.
Existing permitted use simpliciter does not afford a general defence to the causing of a nuisance.
I would uphold grounds 1 and 2 of the notice of appeal. The question of justification as raised by ground 5 remains a matter to be determined on the evidence. It is not necessary to determine the remaining grounds.
I would uphold the appeal and allow the substitution of the name of the respondent to the proceedings and remit the matter to the Tribunal for determination in accordance with law.
File No FCA 115/2003
ROBIN MICHAEL GARD and NORMA GARD v GIBSONS LIMITED
REASONS FOR JUDGMENT FULL COURT:
EVANS J
17 September 2004
I briefly set out my reasons for agreeing with the reasons for judgment prepared by Slicer J and the orders that he proposes.
The issue that goes to the core of this appeal is whether the compliance of Gibsons Limited with the terms of the permit it held referable to the operation of its premises rendered lawful the environmental nuisance it was allegedly causing in the course of those operations.
The permit Gibsons was deemed to hold under the Land Use Planning and Approvals Act 1993 was in the following terms:
"This licence is issued to Gibson's Limited to operate the above premises for the production of stock feeds from grain, fish meal and meat meal provided the quantities of material dealt with or used on the premises are in accordance with the following maxima:
Raw material used or processed 30,000 tonnes per annum
Quantity of production 30,000 tonnes per annum
Quantity of combustible material used 0.06 tonnes per hour
The following conditions are attached to the licence:
1 The premises shall be operated in accordance with the requirements of the Environment Protection Act 1973 and Regulations thereunder. These conditions shall not be construed as an exemption from any of those requirements.
2 Except as provided in subsection (2) of Section 29 of the Act, the licensee shall not without the prior approval in writing of the Director of Environmental Control:-
(a)change any process used on the premises so as to cause or substantially increase the emission of a pollutant or noise from the premises;
(b)construct, instal, alter or remove
(i)any structure in, on or connected with the premises or
(ii)any furnace or other device that produces a pollutant on the premises;
(c)change the nature of the materials dealt with or used on the premises so as to cause or substantially increase the emission of a pollutant or noise from the premises; or
(d)increase the quantity of materials dealt with or used on the premises from the amounts specified in this licence.
For the purpose of this condition, an increase in the emission of a pollutant or noise shall include increases due to a change in the nature, quality, quantity or rate of discharge of such emission or due to a change in the hours of the day or days of the week during which such emissions occur.
3 All buildings on the premises shall be clad with brick, timber or colourbond steel sheeting of colours which blend with the rural landscape e g browns and or dark greens.
AIR POLLUTION CONTROL
A1Odorous compounds shall be removed by treating all gases and vapours from cookers and associated equipment by wet scrubbing or by an alternative technique, which is approved in writing by the Director of Environmental Control.
A3All practicable means shall be taken to prevent the emission of dust and odours from the premises. This shall include:-
(a) handling of all bagged material with care when moving bags from trucks to storage etc;
(b) routine maintenance and good housekeeping practice to ensure that accumulations of dust or other material do not occur in or around the fixed plant or buildings;
(c) cleaning up of spillage or material as it occurs;
(d) regular maintenance to ensure that all dust and odour control equipment is operating effectively."
Condition 1 of the permit is a statement to the effect that it should not be construed as an exemption from compliance with the requirements of the Environment Protection Act 1973 and the Regulations thereunder. This statement shows that the permit was not intended to confer authority on Gibsons to operate the premises regardless of any other law, albeit that the other law referred to was contained in the now repealed Act pursuant to which the permit (then licence) was initially granted. The statement is consistent with the authorities cited by Slicer J in relation to the co-existence of statutory rights and obligations, and provides support for the conclusion that the permit did not necessarily override other applicable law. Accordingly, it is not inevitable that Gibsons' compliance with the permit will render lawful any environmental nuisance it may cause. The appeal should succeed.
File No FCA 115/2003
ROBIN MICHAEL GARD and NORMA GARD v GIBSONS LIMITED
REASONS FOR JUDGMENT FULL COURT:
BLOW J
17 September 2004
The respondent operates a fish processing factory. The appellants contend that it emits, or has emitted, air pollution in the form of dust, gas and smells. The appellants contend that the respondent has thereby been contravening the Environmental Management and Pollution Control Act 1994 ("the EMPC Act"), s53(2), which reads as follows:
"(2) A person who unlawfully causes an environmental nuisance is guilty of an offence.
Penalty:
Fine not exceeding 100 penalty units."
The term "environmental nuisance" is defined in the EMPC Act, s3(1), as follows:
"'environmental nuisance' means ¾
(a) the emission of a pollutant that unreasonably interferes with, or is likely to unreasonably interfere with, a person's enjoyment of the environment; and
(b) any emission specified in an environment protection policy to be an environmental nuisance."
It is common ground that the word "unlawfully" in s53(2) means "unauthorised or unjustified by law" or "without lawful justification", as distinct from "contrary to law". Wright J took the view that the word "unlawfully" had such a meaning in In re The Environmental Management and Pollution Control Act 1994 (1999) 8 Tas R 419, and I think he was right in taking that view. Thus, a person who causes an "environmental nuisance" commits an offence if he or she has no lawful authority to do so, even if his or her conduct is not otherwise prohibited or unlawful.
The appellants applied to the Resource Management and Planning Appeal Tribunal ("the Tribunal") pursuant to the EMPC Act, s48, seeking orders to prohibit or restrict the activities of the respondent at the relevant premises. By a revised or amended application they sought to rely also on the Land Use Planning and Approvals Act 1993 ("the LUPA Act"), s64. In those proceedings, the appellants incorrectly referred to the respondent by the name "Pivot Aquaculture". That is a business name used by the respondent. The appellants should have referred to the respondent by the name Gibsons Limited. They applied to the Tribunal to substitute "Gibsons Limited" for "Pivot Aquaculture". The respondent opposed that application on the basis that it was not contravening the EMPC Act or the LUPA Act, and that the making of the order sought as to its name would therefore be futile. The Tribunal accepted that submission and dismissed the proceedings accordingly. The appellants unsuccessfully appealed to a single judge, and have now appealed to the Full Court.
The power of the Tribunal to make orders under the EMPC Act, s48, is limited by s48(1), which reads as follows:
"48 ¾ (1) Where ¾
(a)a person has engaged, is engaging or is proposing to engage in conduct in contravention of this Act; or
(b)a person has refused or failed, is refusing or failing or is proposing to refuse or fail to take any action required by this Act; or
(c)a person has caused environmental harm by contravention of this Act, any other Act or the repealed Act ¾
the Director, a council or a person who has, in the opinion of the Appeal Tribunal, a proper interest in the subject matter may apply to the Appeal Tribunal for an order under this section."
The appellants contend that the respondent has engaged in conduct in contravention of the EMPC Act, s53(2), and that they were therefore entitled to make an application under s48(1)(a).
The respondent contends that, if it has caused an environmental nuisance (which I am sure it does not concede), it did not do so "unlawfully" in the sense I have explained, since all its actions were authorised by an environmental licence that it obtained in 1981. That licence was granted pursuant to the Environment Protection Act 1973 ("the 1973 Act"), s25. Without it, it would have been unlawful for the respondent to operate its fish processing factory: 1973 Act, s23(1) and First Schedule. The 1973 Act was repealed with effect from 25 January 1996 by the EMPC Act. Transitional provisions were enacted in Sch6 of the EMPC Act. Clause 3(1) thereof provides as follows:
"Where immediately before the commencement day scheduled premises were licensed … under the repealed Act, a permit under Land Use Planning and Approvals Act 1993 is, on that day, taken to have been granted in respect of the scheduled premises on the terms and conditions (if any) specified in the … licence …".
The result is that the respondent is deemed to hold a permit pursuant to the LUPA Act authorising the use of the premises subject to the conditions listed in the licence. The respondent contends that, because of the licence granted under the 1973 Act, it is deemed to have a permit that authorises the activities that the appellants have complained of; that those activities are thus authorised by law; that s53(2) has not been contravened because it did not do anything "unlawfully"; and that the decision of the Tribunal was therefore correct. Thus this appeal raises the very important question of whether the authorisation of some use of land by a permit under the LUPA Act makes lawful the causing of an environmental nuisance that would otherwise constitute a contravention of s53(2). That is a very important question concerning the interaction of the EMPC Act and the LUPA Act. It is because of the importance of that question that the Attorney-General has intervened in this appeal.
In the LUPA Act, s3(1), the word "permit" is defined as meaning "any permit, approval or consent required by a planning scheme or special planning order to be issued or given by a municipality in respect of the use or development of any land". Sometimes planning schemes authorise certain uses without any need to obtain a permit from a council. Sometimes they require an application for a permit, which the council may refuse, grant unconditionally, or grant subject to conditions. Sometimes they require a permit to be applied for and granted, but give the council a discretion as to the imposition of conditions. Using land in a way that is contrary to a planning scheme, or contrary to a condition or restriction imposed by means of a permit, amounts to an offence contrary to the LUPA Act, s63.
The effect of the transitional provision in the EMPC Act, Sch6, cl 3(1), is that the conditions in the respondent's licence can be enforced as if they were conditions specified in a permit granted under the LUPA Act, and that the respondent's land may be used for the purposes of a fish processing factory, even if that use would otherwise be prohibited by the LUPA Act.
The terms of the respondent's licence are set out in full in the reasons for judgment of Evans J. I need not repeat them. The licence authorises the use of the premises as a fish meal processing factory. It does not impose quantitative restrictions on air pollution. It does not positively authorise the emission of pollutants. The respondent contends that the effect of its licence, and of the fact that a permit under the LUPA Act must be taken to have been granted in respect of its premises on the conditions specified in the licence, is that it now has lawful authority and justification to emit pollutants, and that it cannot thereby contravene the EMPC Act, s53(2). If it causes an environmental nuisance by emitting pollutants, it contends that it does not do so unlawfully within the meaning of s53(2). The appellants and the Attorney-General contend that the opposite is the case.
In my view the LUPA Act and the EMPC Act create concurrent systems of prohibitions and restrictions on land use and activities. I think it must follow that, subject to any specific provisions, the granting of permission by a public authority under one of those Acts for some particular use or activity does not automatically authorise the contravention of a provision of the other Act. The Privy Council held that the Mining Act 1906 (NSW) and the Local Government Act 1919 (NSW) interacted in a similar way in Associated Minerals Consolidated Ltd v Wyong Shire Council (1974) 48 ALJR 464, 4 ALR 353. The High Court took a similar view in relation to the Waterworks Act 1932 (SA) and the Planning Act 1982 (SA) in South Australia v Tanner (1989) 166 CLR 161. It was held that, even though the Planning Act prohibited the development of land without the consent of the relevant planning authority, it was possible for the Governor to make a valid regulation under the Waterworks Act prohibiting the erection, construction, enlargement or establishment of a piggery, zoo or feedlot on any land within a watershed. Thus, a use that did not contravene the planning statute could still be prohibited under the environmental statute.
Counsel for the Attorney-General referred during argument to a number of situations in which the creating of an environmental nuisance might be lawfully authorised or justified. Under the EMPC Act, s34, an emergency authorization can be granted, with the result that a person does not incur criminal liability for an act or omission that would otherwise constitute a contravention of that Act. An activity may be authorised by an environmental improvement program under the EMPC Act, ss37 to 42. The taking of specified measures might be required by an environment protection notice issued under the EMPC Act, s44. The need to protect life, the environment, or property in a situation of emergency gives rise to a defence under the EMPC Act, s55(1)(d). Further defences are provided by the EMPC Act, s55A, which reads as follows:
"55A ¾ (1) In any proceedings under this Act, if it is alleged that a person has contravened section 50, 51, 51A or 53, it is a defence if ¾
(a)maximum levels for the particular pollutant have been set in a State Policy or an environment protection policy or as a condition in a permit, and it is shown that those levels were not breached; or
(b)a State Policy, environment protection policy or condition in a permit provides that compliance with specified provisions of a State Policy or environment protection policy or specified conditions in a permit will satisfy the general environmental duty and it is shown that those provisions or conditions were complied with; or
(c)it is shown that all measures specified in a code of practice made and approved in accordance with the regulations as meeting the requirements for compliance with the general environmental duty have been taken.
(2) The defences applied under subsection (1) are in addition to, and do not derogate from, the general defence under section 55."
If, as submitted by counsel for the respondent, a permit under the LUPA Act authorising a particular use of a property has the effect of giving lawful authority or justification to the emission of pollution, even to the extent of causing environmental harm, it would not have been necessary for provisions as to conditions in such permits to be included in s55A(1)(a) and (b). If the respondent's submissions are correct, the mere existence of a permit would be a defence to a charge under s53. It would therefore not be necessary to provide that it is a defence if certain matters are provided for in a condition in a permit, and that condition has not been breached. That is a strong indication that the interpretation of s53 suggested by the respondent is incorrect.
If the respondent's contentions are correct, the granting of a permit under the LUPA Act authorising a particular use of a piece of land would confer the right to emit unlimited pollution from that piece of land, subject to any condition contained in the permit. The primary responsibility for taking administrative measures to limit pollution would thus fall on councils in situations where permits under the LUPA Act were necessary, but not in other situations. In order for the Director of Environmental Management to regulate the emission of pollution from properties to which LUPA Act permits relate, it would be necessary for him and his delegates to identify those properties and to serve notices in respect of each of them pursuant to the EMPC Act, s48. That would be an enormous, costly and time consuming task. If, as submitted by the appellants and the Attorney-General, the granting of a permit does not result in the causing of environmental harm being lawfully authorised or justified for the purposes of the EMPC Act, s53(2), the protection of the environment will be facilitated. The Acts Interpretation Act 1931, s8A, requires an interpretation of a provision of an Act that promotes the purpose or object of the Act to be preferred to one that does not promote that purpose or object. It follows that the interpretation advanced by the appellants and the Attorney-General must be preferred.
For these reasons, I take the view that a permit under the LUPA Act authorising a particular use of a property does not have the effect of providing lawful justification for the causing of an environmental nuisance so as to provide a defence to a charge under the EMPC Act, s53(2). It follows that the respondent's licence did not provide lawful justification for any activity that was otherwise prohibited by s53(2). The reasons for judgment of the learned primary judge demonstrate that he proceeded on the basis that the licence did have that effect. He thereby erred in law. It seems that his Honour's attention was not drawn to the critical point. It seems that the point was masked by quite complicated and unnecessary arguments concerning the effect of the planning scheme that applies to the relevant property, the definition of "light industry" in that planning scheme, the provisions of the Local Government Act 1962 as to existing use rights, and whether the respondent's plant was a "produce processing works" or a "rendering works". There was even an excursion into the law of estoppel.
I agree that the appeal should be allowed, the determination of the Tribunal set aside, the name of the respondent to the application to the Tribunal changed to "Gibsons Limited", and the matter remitted to the Tribunal for determination according to law.
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