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

1. 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)).

1. 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".

1. 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 relation to the land in respect of which the contravention relates;

(c)require the respondent to make good the contravention or default in a manner, and within a period, specified by the Appeal Tribunal;

(d)require compliance with any environmental agreement, environmental improvement programme or environment protection notice;

(e)require the payment of reasonable costs and expenses incurred by the Board or any other public authority as a result of taking action to prevent or mitigate environmental harm caused by a contravention of this, or any other, Act or to make good resulting environmental damage;

(f)require the payment of compensation for the injury, loss or damage, or for payment of the reasonable costs and expenses incurred to a person who has suffered injury or loss or damage, to property as a result of a contravention of this, or any other, Act including costs and expenses incurred in taking action to prevent or mitigate such injury, loss or damage;

(g)require payment (for the credit of the Environment Protection Fund) of an amount in the nature of exemplary damages determined by the Appeal Tribunal."

1. The appellants sought from the Tribunal orders in the nature, first, of an injunction restraining the respondent from carrying out the processing of fish meal, or alternatively an injunction in terms to prevent the respondent from carrying out its activities without ensuring that the amenity of the appellants' property was not affected by odour, dust or noise, second, an order requiring the respondent to make good compensation and, third, costs. They based their case on an alleged contravention of the Act, s53, which relevantly provides:

"53      (1)       …

(2)A person who unlawfully causes an environmental nuisance is guilty of an offence.

Penalty:

Fine not exceeding 100 penalty units."

1. When the matter came on for hearing before the Tribunal in December 2002, the appellant sought to substitute Gibsons Ltd as the respondent, for it appears that they had erroneously nominated Pivot Acquaculture as the entity responsible for the alleged breach. The application was opposed upon the basis that the appellants, in any event, had "no evident cause of action" against Gibsons Ltd and that to grant leave would be an exercise in futility. The Tribunal, without formally taking evidence but presumably taking cognisance of the material assembled by the appellants and filed with it, made a determination that the appellants could not show that Gibsons Ltd had unlawfully caused an environmental nuisance and accordingly refused the application. It is this refusal which is the subject matter of the appeal. It would seem that the Tribunal took a procedural short-cut in its determination. Ordinarily such a ruling could not be made before the applicant for an order pursuant to the Act, s48, had given all his or her evidence and the respondent placed before the Tribunal the material which was said to justify the nuisance (if any). However, the parties do not seek rulings on the propriety of the procedure, but rather on the merits of the proposition implicit in the ruling that even accepting the existence of an environmental nuisance caused by Gibsons Ltd, that company had, by virtue of certain licences and permits, lawful justification for the creation of the nuisance and hence could not be said to have caused it unlawfully.

1. It is common ground that "unlawfully" for the purposes of a contravention of s53 means "without lawful justification" (In the Matter of a Reference Pursuant to the Resource Management and Planning Appeal Act 1993 [1999] TASSC 85, a decision of Wright J, with whose reasons I respectfully agree). The appellants argue that the onus of proof lies on the respondent to establish justification and cite Vines v Djordjevitch (1955) 91 CLR 512 and Morris v Woollahra Municipal Council (1966) 116 CLR 23. I certainly agree that an evidentiary onus lies on the respondent to establish some basis for the justification, but as this proceeding before the Tribunal involved establishing breach of a penal provision, I think that the ultimate onus would lie on the person asserting that the nuisance was caused unlawfully. However, the point is somewhat academic for the respondent sought to rely for justification upon a licence before the Tribunal and the Tribunal accepted that as justification.

1. The respondent's case as to lawfulness is that at all material times, Gibsons Ltd held a licence No 2625 ("the licence") issued in 1981 under the Environment Protection Act 1973 permitting it to operate the premises for the production of stock feed.  It permitted Gibson Ltd to operate the premises "for the production of stock feeds from grain, fish meal and meat meal", provided the raw material used or processed did not exceed 30,000 tonnes per annum and the quantity of combustible material used did not exceed 0.06 tonnes per hour.  That licence initially contained a condition under the heading "Air Pollution Control":

"4   Fish meal shall not be processed on the premises unless the Director of Environmental Control has been advised at least 48 hours prior to the commencement of each production run in which fish meal is used."

Condition 4 was subsequently amended by substituting condition A2, reading:

"Fish meal in any form shall not be processed on the premises unless an adequate odour control system is in operation."

That condition was then deleted by letter dated 28 June 1998 from the Acting Director of Environmental Control on the basis that "Gibsons are making every effort to install an odour control system". The resulting licence then had a number of conditions setting out measures which had to be taken in order to comply with various objectives relating to odour control, but which did not set any quantitative limits as to the amount or extent of odour produced. The resulting licence pursuant to the Act, Sch6, became a permit under the Land Use Planning and Approvals Act 1993 on the day upon which the Act came into effect, that is, 26 January 1996.

1. The original licence was required under the Environment Protection Act because the premises were "scheduled premises" requiring a licence to be operated by virtue of s23 thereof.  Scheduled premises were premises of the kind described in the First Schedule to that Act, namely:

"20      Factories for the processing of fish, meat, vegetables, seed, grain or fruit, including fish meal and fish oil factories and in which more than one hundred (later reduced to ten) tonnes of products per year are produced."

The appellants have not asserted that Gibsons Ltd is in breach of any condition of the licence and hence, on the face of it, its activities are justified. The respondent argues that if, despite its lawful justification for carrying out its activities there is in consequence an environmental nuisance created, the appellants' remedy is to invoke the Act, s44. This relevantly provides:

"44      (1)       Where the Director is satisfied that in relation to an environmentally relevant activity –

(a)environmental harm is being or is likely to be caused; or

(b)…

(c)…

(d)it is desirable to vary the conditions of a permit; or

(e)…

the Director may cause an environment protection notice to be issued and served on the person who is or was responsible for the environmentally relevant activity.

(2)       …

(3)       An environment protection notice –

(a)…

(b)…

(c)may require the person on whom it is served to take the measures specified in the notice to prevent, control, reduce or remediate environmental harm within a period specified in the notice; and

(d)may impose any requirement reasonably required for the purpose for which the notice is issued, including one or more of the following requirements:

(i)   that the person discontinue, or not commence, a specified activity indefinitely or for a specified period;

(ii)  that the person not carry on a specified activity except at specified times or subject to specified conditions;

(iii) that the person take specified action within a specified period;

…

(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."

"Environmentally relevant activity" is defined as including "an environmental nuisance" (s3(1)) and "environmental harm" is likewise defined as including "an environmental nuisance" (s5).

1. The appellants argue that even though the licence/permit's express conditions may not have been breached, the creation of the nuisance is unlawful because the only permitted use to which the land may lawfully be put under the relevant planning scheme (the City of Clarence Eastern Shore (Area 2) Planning Scheme 1986) is light industry.  Light industry is defined as follows:

"Light Industry:

means any premises used for an industry:

(a)in which the building or works occupied, the processes carried on, the materials and machinery used or stored or the transportation of materials, goods and commodities to and from, will not cause injury to or prejudicially affect the amenity of the locality by reason of the appearance of such buildings, works, or materials, or by reason of the emission of noises, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, wastepaper, waste products, grit, oil or the presence of vermin or by electrical interference or otherwise; and

(b)the establishment of which will not or the conduct of which does not impose an undue load on any existing or projected service for the supply or provision of water, gas, electricity, sewerage or any other like service."

The Land Use Planning and Approvals Act, s63(1), makes any use or development contrary to a scheme unlawful. The appellants argue that inasmuch as the activities of Gibsons Ltd do prejudicially affect the amenity of the location by reason of the emission of smell, the company is not carrying on a light industry.

1. However, even assuming the Tribunal had material upon which it could find that the operations could no longer be described as light industry, their justification lay in the grant of the licence, the conditions of which were not alleged to have been breached.  The coming into effect of the planning scheme had no effect upon the authority granted by the licence or the use to which the premises could be put pursuant to the licence.  The planning scheme itself preserved the licensees' existing use of the premises.  Clause 5.4 of the scheme says:

"Subject to Section 756 of the Act (that is, the Local Government Act 1962), and in accordance with the provisions of Section 759, nothing in this Scheme shall affect:

(a)       The continuance of a lawful use of land; or

(b)The maintenance and repair of a lawfully erected building or structure, in existence at the taking effect of this Scheme."

The Local Government Act 1962, s756 provides:

"756     (1)       Where land has from before the taking effect of a planning scheme been used for a purpose that could not lawfully be commenced under the scheme, the corporation may give a notice, to be known as a 'conformity notice', to the owner requesting him to cease the existing use within such period, not less than 12 months, as is specified in the notice. 

(2)       If at any time after the expiration of that period the existing use is continuing, the corporation may purchase or take the land.

(3)       …

(4)       …"

Section 759(1) thereof provides:

"759 (1) Subject to section 756 no planning scheme, master plan, or interim order under this Part affects –

(a)  the continuance of a lawful use of land; or

(b)  the maintenance and repair of a lawfully erected building or structure,

existing when the scheme, plan, or order takes effect."

It can be seen, therefore, 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.

1. I accept the submission of counsel for the respondent that the object of such "existing use" provisions in town planning legislation "is to permit the continuation of the use of land for any purpose for which it was used immediately before the passing of the legislation even though the terms of the legislation prohibit that purpose wholly or partly or upon condition".  See Royal Agricultural Society v Sydney City Council (1987) 61 LGRA 305 at 309 per McHugh JA, with whose reasons Hope and Samuels JJA agreed; and VBI Properties Pty Ltd v VCAT and The City of Port Phillips, unreported [2001] VSC 22, where Balmford J said:

"In the town planning field, statutory provisions designed to protect and preserve existing rights should be as liberally construed as the language in its context allows:  see Mason ACJ, Deane and Dawson JJ in Dorrestijn v South Australian Planning Commission (1984) 56 ALR 295 at p 300; Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1 at p 25; Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138 at p 144."

1. The appellants also argue in ground 3 that subsequently to the licence issued in 1981, a number of other permits were granted to Gibsons Ltd for extensions to the works and that after the commencement of the Act, a permit was granted "to extend the existing processing plant to introduce improved technology and to increase production output". Inasmuch as it was claimed that the activities carried on by Gibsons Ltd at the plant constitute it a produce processing works or a rendering works within the meaning of the Act, Sch2 and hence are Level 2 activities for the purpose of the Act, any permit which authorised such activities would not be valid because the Act, s25, obliges a planning authority to deal with the application for the permit in accordance with the Land Use Planning and Approvals Act, s57, a course which was not followed.

1. The appellants claim that the Tribunal incorrectly held that they could not succeed in establishing that Gibsons Ltd's activities were Level 2 activities.  However, that is not what the Tribunal held.  It held that this was an irrelevant consideration, even if established, because what demonstrated that company's lawful authority for the production of any alleged environmental nuisance was the original licence and that subsequent permits merely authorised extensions to the site.  The fact that such extensions might result in additional production did not derogate from the authority which the company had under the licence.  In my opinion, the Tribunal was correct in so holding.

1. By ground 4 the appellants attack the following ruling of the Tribunal:

"18 It was contended that the respondent having obtained all its permits, both before and after the permit which derived from the licence, on the basis that it was conducting light industry, was estopped from denying that its activities were unlawful if they exceeded the definition of light industry.  It was said the respondent obtained the benefit of being able to significantly expand its activities (particularly extending technology and production) by virtue of the fact Council accepted its claim that it fell within the definition of light industry.  Further, that environment management plans, the approval of which was necessary for the respondent to continue its activities, were predicated on the basis that the respondent conducted light industry and were approved on that basis.  It was contended that if the respondent had proceeded in its environmental management plans and development applications on the basis that it was not conducting light industry and was expanding a use for which it had a permit by virtue of the sixth schedule, but which was to the extent that it exceeded light industry a prohibited use, then the applications and environmental management plans would have been treated on an entirely different basis.

19  The issue of whether the respondent is estopped from relying upon certain permits, other than the permit arising from the licence, is one which is outside the jurisdiction of the Tribunal to determine.  The Tribunal can determine the validity or otherwise of relevant permits, because that is a matter which affects the Tribunal's jurisdiction, and is therefore a matter which the Tribunal must determine in order to determine whether it has jurisdiction and the extent of its jurisdiction.  The issue of estoppel is however one which is not related to jurisdiction, but rather one which relates to equitable principles.  Jurisdiction to apply equitable principles in that sense has not been conferred upon the Tribunal by the legislation under which it is constituted.  The relevant issue in the present application, which is before the Tribunal, is whether the principal applications before the Tribunal could succeed against the proposed respondent Gibsons Limited.  As previously observed, it is a sufficient authority for the respondent if it can point to a permit which is sufficient to authorise the operation being carried on."

1. Whether or not the Tribunal was entirely correct in its reasons expressed at par19, the fact remains that the representations allegedly made were made to the council and not to the appellants.  For an estoppel to arise it must be mutual and a stranger to the representation cannot take advantage of it (Halsbury's Laws of England, 4 ed, vol 16, pars1513 and 1600). Furthermore, the concept of estoppel does not sit easily in proceedings of this nature. While they are not criminal in nature, they do involve the assertion that Gibsons Ltd was guilty of an offence against the Act, s53, and it is, so far as I am aware, unprecedented that a person accused of an offence should be estopped by virtue of a representation from setting up a defence of lawful justification. In any event, I agree with the view of the Tribunal that the company had sufficient authority for its activities once it demonstrated that it was licensed to conduct the operation.

1. Ground 5 is as follows:

"5   The Tribunal erred in ruling that the Appellants could not succeed in that it based the conclusion on a ruling that the effect of Section 3 of the Sixth Schedule to EMPCA was to relieve the Respondent with [sic] the obligation to comply with the conditions imposed by all planning permits applicable to the site."

The Tribunal held:

"12It was contended for the applicants that the simple existence of other permits in which there were conditions relating to the production of odour, meant that the operation carried on site could only be carried on subject to those conditions. The position however is that where there is a permit which is sufficient to enable a use to be carried on, and that permit is not expressed to be cumulative to or dependent upon other permits but can stand on its own, then it is competent for the person relying upon the permit, to rely upon that permit alone. Section 51 of the Land Use Planning and Approvals Act 1993 requires only that a person have 'a permit' for the relevant use, not that there be compliance with each of a number of permits where any one would be sufficient authority for what is done. In the present case the permit which resulted from the licence 2625 was a permit which did not depend upon the existence of other permits for its operation, and which was not expressed to be cumulative upon any other permits.

13In those circumstances the Tribunal is satisfied that Gibsons Limited was entitled to rely upon the permit resulting from licence 2625 at all material times, as authority for carrying on the operation which it is alleged produced the odour in question.  Further, the Tribunal is satisfied that Gibsons Limited did not need to rely upon the provisions of any other permit for authority to carry on that operation.  The conditions of those other permits with respect to odour did not therefore apply to that authority."

It was put to me in argument that the Tribunal's reasoning was incorrect for the same reasons as argued by the appellants in respect of ground 3. I have already rejected those reasons. The Act, Sch6, cl 3(1) and (3) provide:

"3        (1) Where immediately before the commencement day scheduled premises were licensed, or a person was registered in respect of scheduled premises, under the repealed Act, a permit under the 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 registration or licence, and subject to any environmental management plan incorporated, or referred to, in the registration or licence.

(2)       …

(3)       If there is an inconsistency between a condition taken to have been continued in a permit pursuant to subclause (1) and any other condition of the permit, the first-mentioned condition prevails."

The Tribunal was correct in holding that the permit which was deemed to have replaced the 1981 licence authorised the operation.  The other permits relating to extensions of buildings or production were not assimilated into that licence/permit, nor were any conditions allegedly breached incorporated into it.

1. Ground 6 is as follows:

"6 The Tribunal erred in ruling that the Appellants could not succeed in establishing that the planning permits granted since the operative date of Section 3 of the Sixth Schedule of the Environmental Management and Pollution Control Act 1994 were void in that if the Respondent's activities exceed the definition of light industry the granting of permits which increased or extended that activity were ultra vires."

1. The appellants repeat the argument that because the activities of Gibsons Ltd were such as to prejudicially affect the amenity of the locality by the emission of smell and the like, use of the premises was not for light industry and was unlawful.  They go on to argue that if the activity itself that was authorised by these other permits is not light industry, then the council had no power to grant them, acted ultra vires in doing so and the permits are void with the same consequence of unlawfulness.

1. Leaving aside questions of continuing use, the council is charged with the duty of classifying the use to which premises are to be put prior to issuing the relevant permit.  Having classified it as light industry, which is a lawful use, the council cannot be said to have granted a void permit.  If it later appears that the use to which the premises are put ceases to be one of light industry for the reason suggested, the permit nevertheless remains valid.

1. Counsel for the appellants relied on two cases which he submitted were relevant.  The first was R v Town and Country Planning Commissioner, ex parte The Clarence Commission [1961] Tas SR 33. There Burbury CJ held that:

"So long as the Clarence Scheme continues to restrict residential development between the 200 foot contour level the Commission could scarcely do otherwise than refuse consent to a detailed subdivision plan constituting a clear contravention of the scheme."

(at 45).  The difference between that case and the present one is that there was a demonstrable inconsistency between the approval given for a residential subdivision of land above the 200 foot contour and the scheme which prohibited all such development above that contour.  In the present case, there is no inconsistency in the permit.  It does not, on its face, authorise a use which is other than the use permitted by the planning scheme.

1. The second case is that of Brighton Council v Compost Tasmania Pty Ltd, an unreported decision of Underwood J delivered on 23 May 2000, [2000] TASSC 49. There the Council had approved a use of land on the assumption that it was rural industry within the meaning of the planning scheme. Such a use was discretionary. However, the assumption was clearly erroneous because the definition excluded scheduled premises under the Environment Protection Act and the proposed use fell within the classification of scheduled premises.  Underwood J held that the use was one under the category "general industry" and was a prohibited use.  The council accordingly had no power to authorise or approve it.  Here, however, the proposed use was not demonstrably one falling outside the definition of light industry, even if it was later shown to involve activities inconsistent with its intended status as light industry.  In my view, there is no substance in this ground of appeal.

1. The appeal will be dismissed.