Gard v Pivot Acquaculture - [2003] TASSC 120

[2003] TASSC 120

CITATION: Gard v Pivot Acquaculture [2003] TASSC 120

PARTIES:  GARD, Robin Michael
  GARD, Norma
  v
  PIVOT ACQUACULTURE

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 7/2003
DELIVERED ON:  18 November 2003
DELIVERED AT:  Hobart
HEARING DATE:  22 July 2003
JUDGMENT OF:  Cox CJ

CATCHWORDS:

REPRESENTATION:

Counsel:
             Appellants:  T J Williams
             Respondent:  P L Jackson
Solicitors:
             Appellants:  Gunson Williams
             Respondent:  Jackson & Tremayne

Judgment Number: [2003] TASSC
Number of paragraphs: 22

Serial No 120/2003
File No LCA 7/2003

ROBIN MICHAEL GARD and NORMA GARD v PIVOT ACQUACULTURE

REASONS FOR JUDGMENT COX CJ

18 November 2003

This is an appeal from a decision of the Resource Management and Planning Appeal Tribunal ("the Tribunal") which, for the purposes of the Environmental Management and Pollution Control Act 1994 ("the Act") is the Appeal Tribunal therein referred to (see Land Use Planning and Approvals Act 1993, s3(1) and the Act, s3(2)).

The appellants run a family boat building business at Cambridge in Tasmania, next to a plant operated by Gibsons Ltd which is used for the production of stock feeds from grain, fish meal and meat meal and which, since 1997, has produced exclusively fish meal. The plant was constructed in 1981 and the appellants moved to the adjacent site which they now occupy in 1993. The appellants claim that since 1995 they have experienced problems with odour and vapours emanating from the plant. They assembled proofs of evidence which, if accepted, would clearly establish a prima facie case in support of the proposition that the operators of the plant had caused, and were continuing to cause, an environmental nuisance within the meaning of the Act, s3(1) which, for relevant purposes, defines an environmental nuisance as "the emission of a pollutant that unreasonably interferes with, or is likely to unreasonably interfere with, a person's enjoyment of the environment".

The appellants made application to the Tribunal pursuant to the Act, s48, naming Pivot Acquaculture as respondent. Section 48 relevantly provides:

"48      (1) Where –
(a)   a person has engaged, is engaging or is proposing to engage in conduct in contravention of this Act; or
(b) …
(c)   …
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.
(2)       …
(3)       If after hearing –

(a) the applicant and the respondent; and
(b) …
the Appeal Tribunal may, if it considers it appropriate to do so, by order do any of the things specified in subsection 5.
(4) …
(5) The Appeal Tribunal may do all or any of the following:
(a)require the respondent to refrain, either temporarily or permanently, from the act or course of action that constitutes the contravention of, the potential contravention of, or the failure to comply with, this Act;
(b)preclude, for a period specified by the Appeal Tribunal, the respondent from carrying out any use or development in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gard v Pivot Acquaculture

Details

AGLC: Gard v Pivot Acquaculture [2003] TASSC 120
Case: [2003] TASSC 120
Decision Date: 18 November 2003

CaseChat Overview and Summary

The Supreme Court of Tasmania was asked to decide an appeal in the case of Gard v Pivot Acquaculture. The appellants, Robin Michael Gard and Norma Gard, operated a boat building business adjacent to a plant run by Gibsons Ltd, which processed fish meal. The Gards alleged that since 1995, they had experienced problems with odour and vapours emanating from the plant, constituting an environmental nuisance under the Environmental Management and Pollution Control Act 1994. They sought orders from the Resource Management and Planning Appeal Tribunal (the Tribunal) against Pivot Acquaculture (incorrectly named as the respondent), which they later sought to amend to Gibsons Ltd. The Tribunal refused the application, ruling that even if Gibsons Ltd had caused an environmental nuisance, it had lawful justification for doing so under a licence issued in 1981 and subsequent permits. The Gards appealed this decision.

The legal issues before the court were whether the Tribunal correctly determined that Gibsons Ltd had lawful justification for the alleged environmental nuisance, despite the nuisance potentially conflicting with the requirements of the City of Clarence Eastern Shore (Area 2) Planning Scheme 1986. Further, the court had to determine if the permits issued to Gibsons Ltd were valid, particularly in light of the alleged unlawfulness of its activities under the planning scheme.

The court found that the Tribunal's decision was correct. The licence issued in 1981, which was later deemed a permit under the Land Use Planning and Approvals Act 1993, authorised Gibsons Ltd to operate the plant for the production of stock feed, including fish meal, without any quantitative limits on the amount or extent of odour produced. The planning scheme's provisions for existing lawful uses preserved the company's right to continue its operations, despite potential conflicts with the scheme's definition of light industry. The court also held that the subsequent permits for extensions and improvements to the plant did not invalidate the original permit, as they merely authorised extensions to the site. Furthermore, the court rejected the argument that the council had no power to grant the permits, holding that the council's classification of the use as light industry was lawful. The appeal was dismissed.

Orders