Hanoze Park Pty Ltd and City Of Vincent [No 2]
[2024] WASAT 72
•22 JULY 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH (MISCELLANEOUS PROVISIONS) ACT 1911 (WA)
CITATION: HANOZE PARK PTY LTD and CITY OF VINCENT [No 2] [2024] WASAT 72
MEMBER: DR S WILLEY, SENIOR MEMBER
MR R POVEY, MEMBER
HEARD: 18, 20 AND 21 MARCH 2024
DELIVERED : 22 JULY 2024
FILE NO/S: DR 223 of 2021
BETWEEN: HANOZE PARK PTY LTD
Applicant
AND
CITY OF VINCENT
Respondent
Catchwords:
Local government - Environmental health - Odour - Whether odour is a public nuisance - Restaurant - Mixed use locality
Legislation:
Health (Miscellaneous Provisions) Act 1911 (WA), s 182, s 184, s 184(3)
State Administrative Tribunal Act 2004 (WA), s 17, s 27, s 27(1), s 27(2), s 29(1), s 29(3), s 29(5)
Result:
Application for review allowed
Category: A
Representation:
Counsel:
| Applicant | : | P McGowan |
| Respondent | : | P Gillet |
Solicitors:
| Applicant | : | Equitas Lawyers |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Hanoze Park Pty Ltd and City of Vincent [2022] WASAT 30; (2022) 105 SR (WA)
Jasinski and City of Mandurah [2020] WASAT 2
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Entertainment precincts are typically vibrant mixed-use areas which attract many. There are cafes, restaurants, bars and hotels and other commercial uses. Some people choose to live very close to, or even within, such areas. The proximity of these different land uses can lead to tension.
Lake Street, Perth is one such area. It is an area that is characterised by cafes, restaurants, office uses, gyms, hotels and residential dwellings. In mid-November 2020, Hanoze Park Pty Ltd opened the 7 Grams Chicken Café (7 Grams, restaurant or applicant) at Nos 212-214 Lake Street (corner of Amy Street), Perth (subject site). Soon after, neighbours started complaining to the City of Vincent (City or respondent) that 'greasy, rancid, burnt and garlic like' odours were being emitted by 7 Grams.
On 24 September 2021, the City issued a notice on 7 Grams pursuant to s 184 of the Health (Miscellaneous Provisions) Act 1911 (WA) (Health MP Act) alleging the restaurant was 'permitting oily, fried, greasy, rancid and burnt odours to be emitted from an exhaust stack protruding through the roof of the building on the Land' so as to 'unreasonably interfere with the comfort and amenity of local residents located within 140 metres of the exhaust stack' (Notice). The Notice required 7 Grams to '[s]top emitting oily, fried, greasy and burnt odours from the exhaust stack' within 60 days.
7 Grams seeks review of that notice.
For the reasons that follow, we find that 'the correct and preferrable decision' is to allow the application for review and set aside the Notice.
The restaurant and the locality
The relevant facts are, we find, as follows.
7 Grams operates each day, except Tuesday when it is closed, as follows:[1]
(a)12.00 pm to 9.00 pm on Sunday (including public holidays), Monday, Wednesday and Thursday;
(b)12.00 pm to 9.30 pm on Friday and Saturday (including on public holidays); and
(c)5.00 pm to 9.00 pm on public holidays that fall on a Monday, Wednesday or Thursday.
[1] Witness Statement of Ms Jisun Jang, para 13, Exhibit 6.
The menu includes Korean fried chicken (cooked with a variety of flavours and spices), chicken burgers and a range of side dishes (including hot chips and wedges), salads and other Korean dishes and drinks.[2]
[2] Applicant's Bundle of Documents, pages 176 - 183, Exhibit 5.
The kitchen area, located at the front, is combined with the internal dining area. Customers are also seated outside under an awning covering the footpath in Lake Street. A mechanical exhaust hood is fitted in the kitchen to extract cooking fumes and expel them outside, through an exhaust stack on the roof.
In May 2023, after the Notice was issued, the mechanical exhaust air extraction hood and exhaust stack was modified to introduce ozone treatment of the cooking fumes. Modifications also included a new exhaust fan, new ducting and a new exhaust stack on the roof, located to the east of the original exhaust stack, towards the rear of the premises[3] (exhaust stack).
[3] Respondent's Statement of Issues, Facts and Contentions (SIFC), para 10, Exhibit 2 and Respondent's s 24 Bundle of Documents, pages 80 - 91, Exhibit 3.
These modifications result in an odour removal efficiency of emissions at the exhaust stack of 94%.[4] Despite this, the City maintains the Notice has not been complied with.
[4] Applicant's SIFC, paras 37 and 42(c), Exhibit 4, and accepted by Mr Najean at ts 75, 20 March 2024 and by the respondent's counsel, Mr Gillet, ts 222, 21 March 2024.
The locality extends in a radius 140 metres from the exhaust stack, being the distance identified in the Notice. It includes a mix of residential and commercial premises. Commercial premises to the south include the Hotel Northbridge (to the immediate south), Phi Yen Vietnamese restaurant and Peasant's Paradise restaurant (both on the south side of Brisbane Street). To the north there is a row of food premises being Miller + Baker (a bakery and café) at the corner of Lake Street and Ruth Street, then Sayers Sister (café), then Nine Japanese Bistro, at the corner of Lake Street and Bulwer Street.
The residential premises in the locality are a mix of single and two storey developments. The food premises, Miller + Baker, Sayers Sister, and Nine Japanese Bistro, are single storey. Phi Yen and Peasant's Paradise are located on the ground floor of a two-storey mixed-use development. The Hotel Northbridge is two and three storeys, with the taller three storey component abutting Amy Street, opposite the southern side of 7 Grams.
Statutory provisions
The relevant statutory provisions of the Health MP Act are set out in Hanoze Park at [21] - [32].[5] The Notice was issued by the City under s 184 of the Health MP Act which addresses 'Mode of dealing with nuisances' and provides:
Subject as last aforesaid, any nuisance may be dealt with in manner following, that is to say:
(1)On the report of any authorised officer or other person that the nuisance exists on any premises, the local government may, and, if the Chief Health Officer so requires, shall, by requisition to the owner and occupier of the premises, require them to abate the nuisance in the manner and within the time specified in the requisition.
(2)The owner and occupier are hereby jointly and severally empowered and required to comply with the requisition, and do whatever is necessary in order to effectually abate the nuisance.
(3)If default is made in duly complying with the requisition within the time specified therein, then the owner and occupier each commits an offence.
(4)If such default occurs, the local government shall cause the requisite work to be done at the expense in all things of the owner and occupier, who shall be jointly and severally liable therefor.
(5)All such expenses shall be recoverable by the local government from the owner and occupier by action in a court of competent jurisdiction, and until paid shall be a charge on the house and buildings, and also on the land on which the same is built or to which it appertains.
[5] Hanoze Park Pty Ltd and City of Vincent [2022] WASAT 30; (2022) 105 SR (WA) at [132].
Hearing 'de novo'
As the Tribunal has previously observed,[6] in the exercise of its review function, we are to deal with the matter in accordance with the general principles set out in s 17 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The Tribunal has, in accordance with s 29(1) of the SAT Act, the same jurisdiction, functions and discretions as those of the City as the original decision maker.
[6] Jasinski and City of Mandurah [2020] WASAT 2 at [24] - [30].
However, the Tribunal is not limited to the statement of reasons given by the City[7] and may take into account any additional or new information that was not at the disposal of the City at the time the decision was made.[8]
[7] SAT Act, s 27(3).
[8] SAT Act, s 27(1).
The review hearing is therefore 'de novo' and is not confined to the matters and information that were before the City at the time of its decision to issue the Notice.[9] The purpose of the review is to produce the 'correct and preferable decision at the time upon review'.[10]
[9] SAT Act, s 27(1).
[10] SAT Act, s 27(2).
The powers of the Tribunal in s 29(3) of the SAT Act are to:
(a)affirm the decision; or
(b)vary the decision; or
(c)set aside the decision,
and, in any case, to make appropriate orders.
The decision of the Tribunal takes effect as a decision of the City.[11]
[11] SAT Act, s 29(5).
The hearing and evidence
On 20 April 2022, the Tribunal delivered its decision in Hanoze Park which dismissed the applicant's application seeking a declaration that the Notice was invalid. Following this, the final hearing (hearing) was programmed and conducted on 18, 20 and 21 March 2024.
At the hearing we heard evidence from three expert odour witnesses, being:
(a)Mr Philippe Najean, director and principal of OPAM (Odour Process Audit Management) Consulting (OPAM), called by the City;
(b)Mr Michael Assal, operations manager of The Odour Unit (TOU), called by the applicant; and
(c)Mr John Hurley, principal consultant, and director of Environmental and Air Quality Consulting (EAQ), called by the applicant.
Mr Najean, Mr Assal and Mr Hurley each filed individual witness statements, which were taken as their evidence-in-chief, and they were cross-examined together. Additionally, following conferral prior to the hearing, the odour experts filed a joint statement,[12] which was accepted into evidence.
[12] Joint Odour Expert Conferral Notes, Exhibit 12.
Also in evidence before us are various technical reports and correspondence prepared by each odour expert, being:
(a)OPAM (Mr Najean):
(i)Food business odour complaints 212 - 214 Lake Street, Perth - Odour impact verification and mitigation, September 2021 (initial report).[13]
[13] Respondent's s 24 Bundle of Documents, pages 45 - 70, Exhibit 3.
(ii)212 - 214 Lake Street, Perth - Odour mitigation by ozone treatment - Assessment of the odour abatement performance, June 2023.[14]
[14] Respondent's s 24 Bundle of Documents, pages 92 - 127, Exhibit 3.
(iii)212 - 214 Lake Street, Perth - Odour mitigation by ozone treatment - Assessment of the odour abatement performance - Addendum, August 2023.[15]
[15] Respondent's s 24 Bundle of Documents, pages 168 - 180, Exhibit 3
(b)TOU (Mr Assal):
(i)Hanoze Park Pty Ltd v City of Vincent - Odour Expert Report - M Assal, dated 3 July 2022.[16]
(ii)7 Grams Restaurant Odour Validation Assessment, 212 - 214 Lake Street, Perth, Western Australia, Final Report, June 2023.[17]
(iii)7 Grams Restaurant, 212 Lake Street, Perth - Follow-up Response Letter, 14 September 2023.[18]
(c)EAQ (Mr Hurley):
(i)Independent Assessment and Peer Review of Odour Impact Assessment of 7 Grams Restaurant, 6 September 2023.[19]
[16] Applicant's Bundle of Documents, pages 56 - 66, Exhibit 5.
[17] Applicant's Bundle of Documents, pages 95 - 129, Exhibit 5.
[18] Applicant's Bundle of Documents, pages 351 - 354, Exhibit 5.
[19] Applicant's Bundle of Documents, pages 130 - 348, Exhibit 5.
The applicant also called Ms Jisun Jang,[20] head chef of 7 Grams. Ms Jang provided a witness statement (in Korean, with a certified English translation) which was accepted as her evidence-in-chief and she was cross-examined with the assistance of an interpreter.[21]
[20] Ms Jang is also known as 'Bella'.
[21] The respondent accepted, in the circumstances, it was not necessary for the interpreter to be certified (ts 20, 18 March 2024). At the hearing English translation of Ms Jang's oral evidence (given in Korean) was provided by Ms Soobin Park (also known as 'Sally').
The City called eight lay witnesses, who each filed witness statements, which were accepted into evidence. The lay witnesses were not required to attend the hearing.
Two lay witnesses are involved in other food premises in the locality, being:
(a)Mr Muneki Song, owner of Nine Japanese Bistro; and
(b)Ms Ingkwan Ratchusiri,[22] venue manager of the Hotel Northbridge.
[22] Ms Ratchusiri is also known as 'Amy'.
The six other lay witnesses are residents of the locality (from five individual properties), being:
(a)Ms Lynley Coen;
(b)Mr Davin Reynolds;[23]
(c)Ms Jannine Sangalli;
(d)Mr Marcus Remta;
(e)Ms Kristen Goy; and
(f)Mr Olaf Goy.
[23] Mr Reynolds, we accept, is not presently living in the locality, as he is currently redeveloping his property.
At the commencement of the hearing on 18 March 2024, accompanied by counsel, Mr Najean and Ms Jang, we undertook a view of the subject site, including the relevant parts of the restaurant and of the locality. This included identifying the location of other food premises and of the dwellings of the lay (resident) witnesses.[24]
[24] A map of the locality used at the view is Exhibit 1.
Overview of the parties' cases
The City's case is, in essence, that while the ozone treatment system has abated the odours, they persist to an extent that constitute a nuisance for the purposes of s 184 of the Health MP Act. In this regard, the City relies on the evidence of Mr Najean as well as the evidence of some residents who live near 7 Grams.
7 Grams' case is that the ozone treatment system has removed 94% of the odours that enter the exhaust stack. The residual 6% of odours are not sufficient to constitute a nuisance. 7 Grams relies on the evidence of two odour experts: Mr Assal and Mr Hurley.
The evidence of Mr Najean
Following the odour complaints, the City engaged Mr Najean from OPAM to investigate.
Meeting with the residents
Mr Najean met with residents who had petitioned the City on the odours from 7 Grams. They explained to Mr Najean 'their experiences, the type of odours they have been exposed to and the conditions and period during which this odour was most frequently experienced'.[25] The residents explained that the odour was, at least for some, significantly disrupting their lives.
[25] Respondent's s 24 Bundle of Documents, page 51, Exhibit 3.
Mr Najean explained that he would undertake odour patrols (OPs) utilising a technique he had developed while working at the Department of Water and Environmental Regulation. Mr Najean has his olfactory sensitivity tested according to the ASNZS 4323.3 standard and has 20+ years of experience in odour field monitoring.
The OPs
Mr Najean undertook six OPs between 11 July and 16 August 2021. During each patrol, he recorded the wind direction and strength and the presence of odours as either '0', 'subtle' or 'obvious'.
During his first OP, on 11 July 2021, he noted 'obvious', 'fried' and 'oily' odours up to 50 metres from the exhaust stack on the roof of the restaurant and 'subtle' odours up to 75 metres from the stack.
While Mr Najean completed five further OPs for the purposes of his initial report, he only identified odours on four occasions. On those four occasions, he reported 'obvious', 'subtle' and 'no odour' at various locations and at various distances from 7 Grams. During OP 4 on 9 August 2021, with the wind coming from the west, obvious odours were reported up to 100 metres away, and subtle odours up to 140 metres away.
Mr Najean identified that the topography of the area may be influencing the travel of emissions from the exhaust stack. He was concerned that under certain conditions winds passing over the adjacent three storey Hotel Northbridge may be pushing the emissions from the exhaust stack down to street level. He labelled this the 'downwash effect'.[26]
[26] Respondent's s 24 Bundle of Documents, pages 61 - 64, Exhibit 3.
He concluded his initial report with the following remark:[27]
The claims made by the residents about the odour impacts have been verified following six odour patrols performed in the vicinity of the restaurant under different wind conditions.
(emphasis added)
[27] Respondent's s 24 Bundle of Documents, page 64, Exhibit 3.
Mr Najean indicated that possible solutions might be cold plasma/UV ionisation system or ozone injection technologies. However, Mr Najean considered that such approaches are unlikely to be a solution.
Mr Najean's initial report prompted the City to issue the Notice on 24 September 2021.
Mr Najean emails 7 Grams
Having been engaged by the City, and, so far as Mr Najean recalls, without the City's consent, Mr Najean, on 18 October 2021, then sent an unsolicited email to 7 Grams (the Email) entitled 'Stack emissions', which reads as follows:[28]
Dear Jisun
I do appreciate that the current period may not be simple for you following my report.
I do want make clear [sic] that I only have shown what was happening as nothing would have been solved by disregarding this downwash phenomenon.[29]
I know that you have been served with an [sic] health notice by the council [sic] end [sic] of September with a solution to be found within 60 days.
Since then I have been working about this [sic] and been in contact with professionals related to kitchen exhaust fumes to try and find a solution for your specific situation.
I am writing today to know [sic] if you have found a solution as [sic] you want to stay at this place or if you have envisaged other options.
The dilution solution I indicated in my report is doable but is not cheap.
Please call me if you wish to discuss it or alternatively I am happy to come to the restaurant end [sic] of the morning prior to the opening to discus [sic] further.
[28] Email from Philippe Najean to Jisun Jang, dated 18 October 2021, Exhibit 13.
[29] The 'downwash phenomenon' affects the dispersion of exhaust odours from rooftop stacks. Mr Najean considers that the presence of the three-storey Hotel Northbridge is affecting the capacity of the exhaust stack on 7 Grams to effectively disperse the exhaust odours. He undertook this testing of the exhaust stack before it was replaced and relocated as recommended by TOU.
There is no evidence before us that Ms Jang sent Mr Najean a reply. What is clear is that 7 Grams did not request, much less engage, Mr Najean to work on an odour solution.
OPAM publishes links to media articles on 7 Grams
Mr Najean is a director and principal environmental engineer at OPAM. OPAM's webpage includes links to two media articles which explain Mr Najean's work in detecting odours at 7 Grams.
The headlines to these articles are 'The expert who nose chicken' (David Bell) and 'State tribunal to probe Perth fried chicken restaurant's smell' (Jake Dietsch). Both articles featured Mr Najean's work for the City in the context of 7 Grams.[30]
[30] It is not suggested that Mr Najean provided direct quotes for either article. In this regard refer ts 224 - 225, 21 March 2024.
The article titled 'The expert who nose fried chicken' dated 8 October 2021 included the following commentary:[31]
A few months back council staff made the owners install a chimney, stack and ventilation system. But despite it meeting national standards it still wasn't enough to diminish the smell, so in June residents petitioned council to take action.
Vincent bought in the big guns: World renowned odour expert Philippe Najean. Trained in France as a chemical engineer, he started an olfactometry lab in Paris 2001 …
[31] Extract from OPAM webpage, Exhibit 14.
The article titled 'State tribunal to probe Perth fried chicken restaurant's smell' explains that the dispute as to the odours being emitted from 7 Grams is progressing in the Tribunal.
Applicant's criticisms of Mr Najean
Mr McGowan, counsel for the applicant, was highly critical of the conduct of Mr Najean in four key areas. Firstly, Mr McGowan says that Mr Najean should not have met with the residents directly as this may have unduly influenced him. Secondly, he further submits this 'influence' is evinced by Mr Najean's initial report where he explains that he has 'verified' the residents' concerns, rather than made any professional findings as to the existence or otherwise of any odour. Ultimately, Mr McGowan submits that Mr Najean has become an advocate for the residents.
Thirdly, Mr McGowan is also critical of the Email, for two reasons. The first is that Mr Najean was engaged by the City, and it was his work that resulted in the notice being issued to 7 Grams. It was inappropriate for Mr Najean to then contact 7 Grams looking for work. The second is that he presents 7 Grams with a 'dilution solution' that he has come up with. However, the overall thrust of his initial report is that the odour problem at 7 Grams cannot be addressed.
Fourthly, Mr McGowan also criticised Mr Najean for self‑promotion via linking himself with the media coverage of the 7 Grams proceedings on OPAM's webpage. These links were designed, Mr McGowan suggests, to promote his views in circumstances where Mr Najean knew that the matters were the subject of contested proceedings in the Tribunal.[32]
[32] ts 242 - 243, 21 March 2024.
Is Mr Najean a credible witness?
Our impression of Mr Najean's evidence
As we will come to explain, we accept some of the applicant's criticisms of Mr Najean's evidence. That is not to say that we have found Mr Najean to be dishonest. In our view, he was generally a candid witness.
However, even saying that, we consider Mr Najean has played a valuable role in this matter. For instance, we accept that Mr Najean's initial report identifies odour issues at 7 Grams that properly warranted attention and action.
While 7 Grams did not accept Mr Najean's offer to address those odour issues, it instead engaged TOU which recommended the ozone treatment system which, Mr Najean agrees, has reduced the odour concentration levels by 94%.
In his four OPs conducted after the exhaust stack was properly installed, Mr Najean explains that while the ozone treatment has abated the raw cooking odour to some extent, he still considers that 'fried chicken' odours are still 'obvious' at ground level, due to the 'downwash effect' from the Hotel Northbridge when prevailing winds are from the south-east to south-west at or above 2-3m/s.[33] That is to say, Mr Najean is not satisfied that the odour issue has been sufficiently abated despite agreeing the exhaust stack has achieved an odour removal efficiency of 94%.
[33] Witness Statement of Philippe Najean, para 56, Exhibit 11.
Mr Hurley, the odour expert called by 7 Grams who also undertook two odour patrols,[34] disagrees there are any residual odour issues from the exhaust stack that warrant concern and says the predominant source of ambient odour is fugitive emissions.[35]
[34] Identified as odour field assessments or OFAs, Applicant's Bundle of Documents, pages 136 - 149, Exhibit 5.
[35] Joint Odour Expert Conferral Notes, page 5, Exhibit 12.
Before continuing, we should clarify that we do not accept Mr McGowan's criticism that Mr Najean should not have met with the affected residents. We find that meeting was unlikely to have been arranged by Mr Najean. While an expert meeting directly with the residents is perhaps not ideal, it is also not uncommon. Furthermore, we accept that it was important for Mr Najean to know with some precision the odours complained of.
In addition, while it was perhaps not ideal for Mr Najean to couch his conclusions that he had 'verified' the residents' concerns, rather than making findings as to whether there was, in fact, an odour issue affecting the locality and the source of that odour, we are not satisfied that it tarnishes his evidence. Focusing on Mr Najean's language in this way is somewhat pernickety and unfair. In practical terms, Mr Najean was merely explaining to the City that the residents had identified a legitimate odour issue.
The Email should not have been sent
However, what was unacceptable was for Mr Najean to send the unsolicited Email to 7 Grams which, in blunt terms, was spruiking for work.
It is to be remembered here that Mr Najean had been engaged by the City which, based on his initial report, had issued the Notice on 7 Grams. Non-compliance with the Notice is an offence.[36] That legal process was already underway at the point when Mr Najean reached out to 7 Grams.
[36] Health MP Act, s 184(3).
In the Email, Mr Najean not-so-subtly reminds 7 Grams it only has 60 days to find a solution to the odour issues he detected, or they will have to move or shut down. The Email is predatory, inappropriate and reflects a lack of judgment.
Beyond that, it now leaves Mr Najean exposed to, not unreasonable, nor farfetched, concerns that any ongoing issues he has with the odour in the locality could simply relate to the fact that the odour system was not the one he had recommended 7 Grams employ. Moreover, there may also be concerns that Mr Najean may have been put-offside by not being appointed by 7 Grams to act as its odour consultant.
Associating himself with the media coverage of 7 Grams was unwise
Furthermore, we are also troubled by Mr Najean's decision to provide links to the articles on his firm's webpage, which report on his work on odour issues at 7 Grams.
Associating himself with media coverage of what were, and remain, contested Tribunal proceedings which were still on foot was ill‑advised. While, of course, Mr Najean did not write these articles, nor contribute directly to them, associating himself with the media coverage of his odour reports is not consistent with an expert's obligations of neutrality, independence and impartiality.
In our view, having sought to promote himself via these articles - the premise of which is that, in effect, he will 'stop' the odour problem for the residents - puts him in a difficult position when he came to give evidence as to the extent of any ongoing or residual odour issues at 7 Grams.
More importantly, given the media exposure that he has embraced throughout the Tribunal proceeding, it makes it more difficult for him to give frank and fearless evidence at the Tribunal. While not as concerning as the Email, his decision to promote himself in this way is less than helpful while the matter is live before the Tribunal.
Issues for determination
The parties identify two issues for determination in the proceeding:[37]
1(a)Is the applicant permitting oily, fried, greasy, rancid and burnt odours to be emitted from an exhaust stack protruding through the roof of the building at the Land?
1(b)If so, are such odours being emitted in such quantities and for such periods as to cause a 'nuisance' for the purposes of s 184 of the Health MP Act?
2.If the answer to Issue 1 is yes, should the Notice be affirmed?
[37] We have adopted the approach to Issue 1 identified in the Applicant's SIFC (Exhibit 4), for two reasons. First, the applicant confines Issue 1(a) to odours emitted from the exhaust stack, consistent with the terms of the Notice. Second, it is necessary for the Tribunal to determine if a 'nuisance' is being caused by the exhaust stack emissions affecting public health, consistent with the Tribunal's observation (at footnote 29) in Hanoze Park. Also, the applicant identifies, s 182 of the Health MP Act as relevant. The Notice, however, was issued under s 184. Issue 1(b) is reframed accordingly.
We will consider and determine the issues in turn.
1(a) Is the applicant permitting oily, fried, greasy, rancid and burnt odours to be emitted from an exhaust stack protruding through the roof of the building at the Land?
The City contends the applicant is continuing to permit oily, fried, greasy, rancid and burnt odours to be emitted from the premises in such quantities and for such periods to cause a nuisance for the purposes of the Health MP Act.[38]
[38] Respondent's SIFC, para 14, Exhibit 2.
7 Grams says it has taken steps, since the Notice was issued in September 2021, to reduce the odour impact and that these steps are 'more extensive, more advanced, more effective than the steps that an ordinary restaurant business in the area would usually be expected to take'.[39]
[39] Applicant's SIFC, para 45, Exhibit 4.
Further, 7 Grams contends, to the extent the restaurant emits odours, these odour emissions:[40]
(a)cannot be described as “oily”, “fried”, “greasy”, “rancid” or “burnt”; and
(b)are not of a character, quantity, and duration capable of constituting a “nuisance” as the term is used in [s] 182 of the [Health MP] Act.
The presence of fugitive emissions
[40] Applicant's SIFC, para 47, Exhibit 4.
Before turning to consider the odour emissions at the exhaust stack, we observe that Mr Najean and Mr Hurley agree odour is also present from 'fugitive' sources, such as an open door or from the alfresco area at the front of 7 Grams.[41] Fugitive emissions can also be emitted through windows. The Notice does not address fugitive emissions. In this case, fugitive emissions are, we accept, raw, untreated odours.[42]
[41] ts 91 - 92, 20 March 2024.
[42] ts 201, 20 March 2024.
Further, the field assessments conducted by OPAM and EAQ, in our view, are of limited assistance to us because they are directed to all odours, regardless of the source. That is to say, the odours that have been detected by Mr Najean and Mr Hurley could be from the exhaust stack or they could be fugitive emissions. However, the Notice only relates to odours from the exhaust stack.
Mr Hurley's evidence is that the predominant source of ambient odour from 7 Grams is fugitive emissions.[43] On the other hand, Mr Najean says the exhaust stack is the predominant source of the odour.[44] However, Mr Najean performed no testing of the emissions directly at the exhaust stack, either before or after the ozone treatment was installed.
[43] Joint Odour Expert Conferral Notes, page 5, Exhibit 12.
[44] Ibid.
Mr Najean did conduct OPs before and after the ozone treatment was installed. For those OPs performed after installation of the ozone treatment, his evidence is that while the odours were not as strong, they remained recognisable, and are likely to be present frequently and for long periods under certain wind conditions.[45] Mr Najean's overarching view is that 'no treatment technology will fix the odour issue within this current topography and environment with sensitised community members'.[46]
[45] Witness Statement of Philippe Najean, para 19, Exhibit 11.
[46] Respondent's s 24 Bundle of Documents, page 180, Exhibit 3.
We are troubled by his view for three reasons. Firstly, if that was, and is, his view, why did he then offer to act as 7 Grams' consultant in finding a (dilution) solution? Secondly, and beyond that, because Mr Najean has long held a firm view that there is, in effect, no viable solution for 7 Grams, he now seems to be very critical of the work of TOU and seems to be critical of it attempting to put in place an odour solution and, in doing so, prove him wrong. Thirdly, in forming his view, Mr Najean does not appear to account for the presence, and contribution of, raw fugitive emissions.
Because of this Mr Najean's evidence now reads as a contest between himself and TOU as well as EAQ's, Mr Hurley. That is not helpful. For example, in his August 2023 report he explains that Mr Hurley's observations during his field surveys were 'fictional'.[47] In our view, drawing such an inference on the opinions expressed by a professional colleague is extraordinary and, moreover, it is hardly a conclusion reached by a disinterested and impartial expert witness.
[47] ts 115 - 116, 20 March 2024.
Further, on the evidence before us, no attempt was made during the OPs by Mr Najean, or for that matter by Mr Hurley in his OFAs, to limit, or exclude as far as is practical, fugitive emissions. This, in our view, is one of the significant oversights in the City's case, which relies entirely on the results of Mr Najean's various OPs and on the evidence of residents, who are also exposed to fugitive emissions.
While we have expressed some concerns with aspects of Mr Najean's evidence, it is ultimately unnecessary for us to reach any concluded view on questions of credibility. This is because, for the following two reasons, we accord limited weight to the field assessments performed by both Mr Najean and Mr Hurley.
First, it is not possible from the results of the field assessments to separately identify and precisely attribute odours which are 'fugitive', being raw and untreated odours, and those from the exhaust stack, which have been abated by ozone treatment. While the experts disagreed as to the distance at which fugitive emissions may be able to be detected, the fact remains the presence of such emissions in some, if not many, of the reported odours cannot be reasonably excluded. This evidence does not answer the critical question of the source of the residual emissions that are said to constitute a nuisance.
Second, we have before us evidence, in the form uncontested test results, of the ozone treated emissions entering the exhaust stack immediately before discharge into the atmosphere which, as we will explain next, we prefer.
What odours are being emitted from the exhaust stack?
As mentioned, the odour experts agree that, with ozone treatment, there is an 'odour removal efficiency' of the emissions entering the exhaust stack of 94%, based on laboratory testing performed by TOU and EAQ.[48] Mr Najean did not undertake this type of testing but accepts these results.[49]
[48] Applicant's Bundle of Documents, page 110 (TOU) and page 150 (EAQ), Exhibit 5.
[49] ts 75, 20 March 2024.
The results are based on separate sampling and laboratory testing of the collected samples at a NATA[50] accredited laboratory. The odour concentration results are expressed in 'odour units' (ou). 'AS/NZS 4323:2001 Stationary source emissions - Part 3: Determination of odour concentration by dynamic olfactometry' defines:[51]
One odour unit (ou) is that concentration of odorant(s) at standard conditions that elicits a physiological response from a panel (detection threshold) equivalent to that elicited by one Reference Odour Mass (ROM), evaporated in one cubic metre of neutral gas at standard conditions.
[50] NATA - National Association of Testing Authorities.
[51] Applicant's Bundle of Documents, page 554, Exhibit 5.
TOU's test results record 4,470 ou at the kitchen hood (noting this as untreated) and with the hot vats (used for cooking) operating at '100% cooking capacity', an odour concentration of 256 ou after treatment or downstream of the ozone generator, with a 94% odour removal efficiency.[52]
[52] Table 4.2 appears to contain an error showing the odour concentration at 128 ou at 100% cooking capacity. The laboratory results show this figure should be 256 ou (and that 128 ou is for 75% cooking capacity) - Applicant's Bundle of Documents, pages 110 and 116, Exhibit 5.
EAQ's test results record 4,000 ou at the kitchen hood (inlet) prior to ozone treatment and 230 ou recorded at the outlet after ozone treatment, also stating an odour removal efficiency of 94%.[53] EAQ advise the throughput of the kitchen was deemed to be at or near capacity during the sampling program (75% to 100% capacity).[54]
[53] Applicant's Bundle of Documents, page 150, Exhibit 5.
[54] Applicant's Bundle of Documents, page 149, Exhibit 5.
Based on these test results, we are satisfied, and we find, the ozone treatment gives an odour removal efficiency of 94% for the emissions at the exhaust stack when the kitchen at 7 Grams is operating at or near capacity.
The remnant odour emissions at the exhaust stack, on the evidence before us, are in the order of 230 ou. Mr Najean, opines that odour is recognised at low levels, being 3 to 10 ou.[55] Further, he says because of the downwash effect, the remnant odour is grounded and remains recognisable in the locality.[56]
[55] ts 77 - 78, 20 March 2024.
[56] ts 78 - 79, 20 March 2024.
It is therefore necessary for us to consider evidence as to the 'odour character' of the emissions at the exhaust stack.
What is the 'odour character' of the emissions at the exhaust stack?
The Notice describes the exhaust stack emissions as oily, fried, greasy, rancid and burnt.
The evidence of Mr Assal and Mr Hurley addresses 'odour character' from samples collected:
(a)Untreated, directly at the inlet; and
(b)After ozone treatment, directly at the outlet.[57]
[57] After passing through the outlet, the emissions are discharged via the exhaust stack to the atmosphere.
TOU's report provides the 'Odour Panel Calibration Results' as to 'Odour characters (non-NATA accredited) as determined by odour laboratory panel'. The results of sampling undertaken on 7 June 2023 show, at maximum cooking and before treatment the odour character (on site) at the inlet is 'Fried food' and after treatment with ozone, the odour character (on site) at the outlet is 'Ozone'.[58]
[58] Applicant's Bundle of Documents, page 117, Exhibit 5.
Although Mr Najean did not perform similar testing, he was critical of TOU's testing, because the samples TOU collected were analysed at an interstate laboratory about 24 hours later.[59]
[59] Respondent's s 24 Bundle of Documents, page 19, Exhibit 3.
In response to this criticism, the applicant engaged EAQ to retake similar testing in Perth and provide a report.[60] The odour character from bagged samples, collected on 17 August 2023, are described by EAQ at 'Table 2-5: Odour Concentration Laboratory Results':[61]
(a)Inlet - Odour Character: Fried chicken, oily; and
(b)Outlet - Odour Character: Fresh, sweet, clean light oil.
[60] Applicant's Bundle of Documents, pages 130 - 160, Exhibit 5.
[61] Applicant's Bundle of Documents, page 150, Exhibit 5.
Under cross-examination, Mr Hurley agreed that, while other information in Table 2-5 reflect the results of laboratory testing undertaken by the NATA accredited laboratory, Ektimo,[62] the 'odour character' assessment is his own expert opinion determined 'by smelling from the bag'.[63] His explanation, which is not contradicted by the other odour experts, is that there is no NATA accredited assessment for odour character.[64]
[62] The Ektimo laboratory results are at Applicant's Bundle of Documents, pages 345 - 348, Exhibit 5.
[63] ts 158 - 161, 20 March 2024.
[64] ts 158, 20 March 2024.
Mr Gillet, counsel for the respondent, submits Mr Hurley's evidence as to odour character 'should be treated with some caution' because the information is presented as 'laboratory results' when it is not.[65] However, while we accept Mr Hurley's presentation in Table 2-5 is inaccurate to the extent it presents the 'odour character' as a laboratory result, we do not accept it is otherwise unreliable.
[65] ts 218, 21 March 2024.
We also observe the earlier testing undertaken by TOU was performed when the exhaust fan was running at a reduced capacity. This was corrected on 21 June 2023.[66] Therefore, we accept the evidence in the later testing by EAQ that the odour character of the treated emissions is 'fresh, sweet, clean light oil' because this testing was completed when the exhaust system, including the fan speed and ozone treatment, was working correctly.
[66] Respondent's s 24 Bundle of Documents, page 171, Exhibit 3.
There is no evidence before us that the 'odour character' of emissions at the exhaust stack is, as described in the Notice, fried, greasy, rancid or burnt. We are satisfied, and find, it is not.
The Notice also alleges the emission of 'oily' odours. We accept an odour of 'fresh, sweet clean light oil' is emitted at the exhaust stack. However, we are not persuaded, on the evidence before us, that 'fresh, sweet clean light oil' is an 'oily' odour in the same sense that term is used in the Notice. We are also not persuaded this singular odour, emitted at the exhaust stack, is a source of nuisance.
Issue 1(a) is therefore answered in the negative.
1(b) If so, are such odours being emitted in such quantities and for such periods as to cause a 'nuisance' for the purposes of s 184 of the Health MP Act?
As Issue 1(a) is answered in the negative, it necessarily follows, and we find, the ozone treated emissions from the exhaust stack at 7 Grams are not a cause of nuisance for the purposes of s 184 of the Health MP Act.
We find, however, that while odours of 'fried chicken' and 'chilli/spices' were detected during the field assessments conducted after the ozone treatment was installed, their presence, considering the evidence before us, likely arises from raw fugitive emissions at 7 Grams, and not from the ozone treated emissions at the exhaust stack.
In our view, whether there is a 'downwash' effect acting on the exhaust plume because of the nearby Hotel Northbridge is no longer to the point. It is an agreed fact between the experts that the ozone treatment system neutralises 94% of the odours that enter the exhaust stack.
If the answer to Issue 1 is yes, should the Notice be affirmed?
As Issue 1 is answered in the negative, it is not necessary for us to address Issue 2 in detail.
While the evidence from the residents is that they consider odour issues remain, and in some cases are worse, we prefer the expert evidence of Mr Najean who performed OPs before and after the modifications to the exhaust system, including the installation of ozone treatment. He says ozone treatment has abated the raw cooking odour from the restaurant to some extent[67] and the odour is of a lower intensity.[68] We accept the evidence of Mr Hurley that the ozone technology has been effective such that the residual odour emitted from the exhaust stack is not a source of problematic odour at ground level[69] and, we agree, the predominant source of ambient odour from 7 Grams is fugitive emissions.[70]
[67] Witness Statement of Philippe Najean, para 56, Exhibit 11.
[68] ts 74 - 75, 20 March 2024.
[69] Joint Odour Expert Conferral Notes, page 6, Exhibit 12.
[70] Joint Odour Expert Conferral Notes, page 5, Exhibit 12.
We also accept Mr Najean's evidence that the affected residents are now sensitised by the odour from 7 Grams. In that context, the affected residents are likely to still claim to be affected, even though it is demonstrated, in a substantive and objective sense, odours from the exhaust stack are abated.
This outcome, we accept, will be disappointing for the residents. However, in the context of this locality, and considering our findings to Issue 1, the residual exhaust stack odours are not, in our view, sufficient to justify affirming the Notice in circumstances where it is not directed at these emissions.
Even if the City had cast the Notice differently, at the core of nuisance, at least as a matter of common law, is a recognition that not every impact from a neighbour is actionable. The nuisance must reach a threshold level to be actionable at law. Here, that threshold level is that it must be a matter of public health.[71] That is the lens through which the allegation that the odours are causing 'unreasonable interference' with the comfort and amenity of residents falls to be determined.
[71] Hanoze Park at [73].
7 Grams is located on Lake Street and sits within a mixed-use area where restaurants, cafes and hotels are intermixed with residential and other commercial uses. This is not a pristine or homogeneous residential area and a level of amenity that is completely devoid of any odours, or for that matter other emissions such as noise, which reflect its diverse land use character cannot, in our view, be reasonably expected.
We find that 7 Grams has put in place arrangements that so significantly lessen the odours emitted at the exhaust stack to the point where we are satisfied that there is no public health nuisance that justifies the Notice being affirmed. Therefore, we will make orders setting aside the Notice and substituting a decision that no direction be given as to emissions from the exhaust stack of 7 Grams.
Conclusion
7 Grams seeks review of the Notice issued on 24 September 2021. The Notice alleges 7 Grams is 'permitting oily, fried, greasy, rancid and burnt odours to be emitted from an exhaust stack protruding through the roof of the building on the Land…'.[72] The Notice requires 7 Grams to '[s]top emitting oily, fried, greasy, rancid and burnt odours from the exhaust stack on the Land'.[73]
[72] Respondent's s 24 Bundle of Documents page 74, Exhibit 3.
[73] Ibid.
We have determined, for the reasons provided at Issue 1(a), that the odour being emitted at the exhaust stack is not as described in the Notice, being oily, fried, greasy, rancid and burnt. Rather, we found that the odour of the treated emissions at the exhaust stack is 'fresh, sweet clean light oil'.
Given this finding, we found, at Issue 1(b), there is no basis that the exhaust stack emissions constitute a nuisance for the purpose of s 184 of the Health MP Act.
Finally, considering our findings to Issue 1, we have determined there is no basis for the Notice to be affirmed. The 'correct and preferable decision' is therefore to make orders setting aside the Notice and substituting a decision that no direction be given as to the emissions from the exhaust stack at 7 Grams.
For the above reasons, the Tribunal makes the following orders.
Orders
The Tribunal orders:
1.The application for review is allowed.
2.The decision of the respondent to issue the Notice pursuant to s 184 of the Health (Miscellaneous Provisions) Act 1911 (WA) is set aside and a decision is substituted in its place that no direction be given as to emissions from the exhaust stack of the 7 Grams restaurant at Nos 212-214 Lake Street, Perth.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR R Povey, MEMBER
22 JULY 2024
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