Lake Macquarie City Council v Australian Native Landscapes Pty Limited (No 5)

[2016] NSWLEC 134

Land and Environment Court

New South Wales

Medium Neutral Citation:	Lake Macquarie City Council v Australian Native Landscapes Pty Limited (No 5) [2016] NSWLEC 134
Hearing dates:	11 October 2016
Date of orders:	12 October 2016
Decision date:	12 October 2016
Jurisdiction:	Class 4
Before:	Sheahan J
Decision:	The Respondent’s Notice of Motion of 29 September 2016 is dismissed
Catchwords:	PRACTICE AND PROCEDURE: application for a further extension of a stay on orders made by the Court – discretion – refused – costs.
Legislation Cited:	Protection of the Environment Operations Act 1997
Cases Cited:	Lake Macquarie City Council v Australian Native Landscapes Pty Limited (No 2) [2015] NSWLEC 114 Lake Macquarie City Council v Australian Native Landscapes Pty Limited (No 3) [2015] NSWLEC 118 Lake Macquarie City Council v Australian Native Landscapes Pty Limited (No 4) [2016] NSWLEC 90 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Category:	Principal judgment
Parties:	Lake Macquarie City Council (Applicant) Australian Native Landscapes Pty Limited (Respondent)
Representation:	Counsel: Mr T To, barrister (Applicant) Dr S Berveling, barrister (Respondent)   Solicitors: Moray & Agnew Newcastle (Applicant) McCabes Lawyers (Respondent)
File Number(s):	2016/213622

Judgment

Introduction

1. These Class 4 proceedings concern a site in Crawford Road, Cooranbong.

2. The respondent, Australian Native Landscapes Pty Limited (“ANL”), has asked the Court to further extend the stay on some orders made by Biscoe J following his judgment of 17 July 2015: Lake Macquarie City Council v Australian Native Landscapes Pty Limited (No 2) [2015] NSWLEC 114.

3. His Honour’s decision followed a hotly contested hearing over 13 hearing days, but, when he settled his orders on 23 July 2016, he stayed some to 31 July 2016 (see Order 8 in Annexure ‘A’ to the Vergotis affidavit of 29 September 2016, at p8).

4. His Honour’s key findings, and his relevant orders, are summarised in the judgment I delivered on 21 July 2016, extending that stay until 14 October 2016, rather than the then requested 31 December 2016: Lake Macquarie City Council v Australian Native Landscapes Pty Limited (No 4) [2016] NSWLEC 90, at [4] – [17].

5. Council, for whom Mr To appears, made a strong case on that occasion for that extension to be refused. I said (at [38] – [42]):

38   The arguments in favour of extending the stay are not strong, particularly when viewed against several elements of the chronology I have described – e.g., the missing of the 1 December 2015 deadline; the tardiness in preparing and lodging the necessary DA, and now apparently in providing the additional information Council has sought; making the water use accounting available to Council only on 18 March 2016; the delay in seeking the extension of the stay; and the failure to follow up local concerns discussed on 18 March.

39   Mr To has argued that an extension of the stay may not really be needed, and he has certainly argued strongly that it is not justified, and should be refused. He points out, inter alia, that ANL has produced no evidence of any attempt to comply with Order 7 regarding the diversion of leachate from a key part of the site. The Court was reluctant to grant the extension.

40   On the other hand, there has been some progress, and the Court should not be too precipitous in making a decision that may well force the closure of ANL’s operation, especially when the parties and the Court are soon to examine in the Class 1 appeal many merits issues regarding it.

41   The Council being supportive of the operation, if regularised, the Class 1 appeal should be resolved within twelve weeks.

Conclusion and Orders

42   I am, therefore, prepared to extend the stay for a short period – until only 14 October 2016.

6. The related Class 1 proceedings to which I referred (in [40]) are now fixed for hearing for seven days, commencing 3 April 2017.

The Present Application

7. The motion now brought before the Court by ANL seeks the replacement of the date “14 October 2016” in my stay order with either of the following forms of words:

“to the Friday of the 6th week after the completion of the hearing in Class 1 proceedings No. 2016/219940”

or

“pending further order.”

8. A seven-day Class 1 hearing will likely end with reservation of judgment, and the outcome of that appeal would likely not be clear until May or June 2017, or even later.

9. ANL’s success on its present motion would, therefore, mean that Biscoe J’s order had effectively been stayed for two years, rather than the one year His Honour intended. Such an outcome must be viewed in light of some of His Honour’s reasoning, given that Council had sought from him wide-ranging civil enforcement relief, “generally to be stayed for a period of six months” ([3]).

History of Main Proceedings

10. Consent for some sort of composting operation on the subject site dates from the mid-1980s. ANL commenced its operations on the land in May 2000, and bought it in March 2015 ([7] – [33]). His Honour recounted relevant history from 2001 concerning the involvement of both Council and the Environment Protection Authority (“EPA”), and proceeded to construe consents and other documents, review the experts’ and other evidence, and interpret relevant legal provisions ([34] – [73]). He concluded (at [74] and [76]):

74   I conclude that the leachate dam, bund and woodchip stockpile area required and do not have development consent.

...

76   ... I conclude not that there should be no relief granted in relation to the leachate dam, bund and woodchip stockpile, but that the injunctions I propose to grant should be stayed for a period that should suffice for ANL to endeavour to regularise the situation, such as by seeking development consent for the use of those works (emphasis mine).

11. His Honour then turned to the issue concerning hours of operation of mechanical equipment, concluding (at [83]):

... The object of the condition concerning hours of operation of mechanical equipment is largely to protect the amenity of neighbours. The evidence indicates that neighbours have suffered as a result of ANL trucks operating outside the permitted hours. I propose to grant injunctive relief.

12. The next issue concerned native vegetation clearing in breach of the relevant legislation ([84] – [92]), and then His Honour turned his attention to the offensive odour claims (commencing at [93]), saying, inter alia (at [97] – [106]):

97   Expert evidence as to odour was given by Mr Aleks Todorovski for Council and Mr Terrence Schulz for ANL.

98   The odour experts agreed and I accept that it is “highly probable that at times the ANL developed area emissions have been the cause of offensive odour detectable off-site”.

99   The odour experts agreed that it is most likely the key problematic sources of odour at the Land are the green waste receivals (sic) area, the composting windrows and the leachate dam.

100   Mr Schulz considered that ANL’s operation “has not always operated to its full odour mitigation potential”.

...

103   The odour management plan was prepared in December 2013. Mr Schulz considered the implementation of the plan to be sufficient to prevent, in future, offensive odours being emitted.

104   There were two measures proposed in the December 2013 odour management plan. The first measure was a system of aeration and covers. Mr Schulz’s evidence was that this system was in place and being operated. That evidence was on the basis of advice from ANL. Mr Todoroski’s evidence, from personal inspection, was that the aeration system had not operated for some time given the build-up of detritus and cobwebs in the components, including in the air intake for the aeration motors, as shown in his photographs. As his evidence was based on personal inspection, I prefer the evidence of Mr Todoroski on this point.

...

106   It is apparent that the aeration and cover system is not being operated to its full odour mitigation potential.

13. His Honour then turned to the related question of leachate management (from [107]), and noted ([108] – [111]):

108   The fact that the tanks and other parts of the leachate management system have not been installed appears to be the result of a considered decision by ANL. This is apparent from correspondence by ANL to the EPA as recently as 16 February 2015, which included this passage:

As you are aware, ANL was poised to apply to Lake Macquarie City Council for a DA to construct the proposed storage tanks, copy attached dated 10 December 2013. ANL further attempted to negotiate a fair and equitable outcome with Lake Macquarie City Council to no avail and under legal advice ANL did not proceed with the tank farm DA.

109   On the evidence, I find that sub optimal management of the developed area that was identified in the May 2013 odour study continues to the present day, because the mitigation measures proposed in December 2013 have been implemented less than ideally (aeration and cover system) or not at all (leachate management system).

110   The high probability of continued emissions of offensive odours from the developed area before and after 2013 is borne out by the many complaints of offensive odour made consistently over time. Such complaints include descriptions of the nature and duration of odour and the effect on the persons perceiving them. The terms of the complaints leave me in no doubt that they were offensive odour because they interfered with the comfort and repose of the complainants. There is also uncontested direct evidence of offensive odour, including so as to force Mr and Mrs McGlynn on many occasions to leave their home on a neighbouring property on Deaves Road.

111 I conclude that ANL has in the past caused the emission of offensive odours from the Land in breach of s 129(1) of the [Protection of the Environment Operations Act 1997 (“POEO Act”)].

14. His Honour repeatedly rejected ANL’s resort to the Court’s discretion to decline relief and, in the above context, said (at [113]):

In light of my findings, I am not persuaded that these considerations should lead the Court to decline relief. Given that mitigation measures identified in December 2013 have not been implemented, because of ANL’s decision to not even apply for planning permission for the leachate management measures, or have been implemented in a less than ideal way, I conclude that it is probable ANL will in the future, unless restrained, cause the emission of offensive odours from the Land. However, I propose to stay an injunction relating to odour for a period to give ANL an opportunity to put effective odour management measures in place.

15. His Honour next considered the water pollution/negligence claims ([114] – [189]), which he concluded against ANL, and the land pollution/negligence claims ([190] – [200]) which he did not.

16. After a discussion on questions of relief (from [201]), His Honour set out (in [225]) a draft of his proposed orders and declarations and attached to his judgment explanatory plans and aerial photographs.

17. The Council was generally successful in its proceedings, and, on 23 July 2015, His Honour settled his orders in final form, and declined to apportion the costs he ordered ANL to pay: Lake Macquarie City Council v Australian Native Landscapes Pty Limited (No 3) [2015] NSWLEC 118.

Discussion

18. I respectfully agree with Biscoe J that a stay of 12 months should have been adequate for ANL to regularise the situation of continuing unlawful use which His Honour found and declared.

19. Although the orders at which His Honour finally arrived have been well-known since 23 July 2015, no development application (“DA”) was filed by ANL until some 10 months later, and that DA was obviously and seriously deficient in addressing those orders.

20. On 21 June 2016, Council, sought from ANL crucial additional information, and the Class 1 appeal was filed, on 21 July 2016, before it had been provided.

21. The 12 month stay period had almost expired, and a late application was made for its extension. It was reluctantly extended by me on 21 July 2016, to 14 October 2016, and I clearly expressed the Court’s concern about ANL’s slow progress to that stage, and about the community impact of its ongoing failures ([28] – [39]).

22. On 8 August 2016, ANL filed a Notice of Motion (“NOM”) in the Class 1 proceedings to change the DA’s purpose, and substitute new plans (Exhibit C1).

23. Council raised further DA shortcomings on 17 August 2016, and the appeal was stood over, but eventually, on 23 September 2016, after a major contest (see Mr Brothers’s, or the “MJB”, materials, fols 190 – 194, but c.f. submissions in Exhibit A1), the Registrar made necessary orders and directions (Annexure ‘E’ to Vergotis 29 September 2016, p36 – 38). She subsequently fixed the April 2017 hearing dates.

24. While I accept that there have been some improvements achieved, and that the EPA is reasonably satisfied on some relevant aspects of ANL’s operation (MJB materials, fols 5 to 38), community complaints continue (fols 40 to 108), and there has been what Mr To calls (MJB fol 190, par 2) “a continued pattern of tardiness by ANL” in responding to Biscoe J’s judgment and Council’s routine DA requirements. No suitable explanation was provided to me either on 21 July or yesterday.

25. The present unsatisfactory planning situation at this site simply cannot be allowed to continue until the Class 1 appeal is decided.

26. A closure of the Cooranbong site may impact adversely on up to 25 employees (10 on site and 15 drivers – Annexure ‘F’ to Vergotis 29 September 2016, p39), but ANL has another operation at Warnervale, approximately 19.6 km from the subject site (Brothers 7 October 2016, par 6), and no one beyond itself to blame for any such unfortunate impacts.

27. The Council rightly complains that ANL has not seriously engaged with it on the primary issues of odour and leachate, which brought the operation before Biscoe J, until the amended plans (Exhibit C1) came forward on 20 September 2016.

28. Complaints which both Biscoe J and I accepted in our judgments continue (MJB fols 40 – 108), and some concern matters not the subject of any stay.

29. ANL continues a dismissive attitude to all complaints – they “represent nuisance value” (MJB fol 32; and my earlier judgment at [34]). The EPA was critical of ANL’s complaint handling (MJB fols 14, 18 and 19).

Conclusion

30. The Court must uphold the integrity of the planning law, and I am completely unsatisfied that the indulgences granted to ANL by Biscoe J and myself have been respected.

31. The stage has now been reached where private advantage is being won at the expense of the public interest, and the balance required in exercising the Court’s discretion has shifted since July: Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335, at 339 – 340; and my earlier judgment at [36].

32. The Notice of Motion brought by ANL on 29 September 2016 is dismissed, and ANL is ordered to pay Council’s costs.

33. Exhibits A1 and C1, and ANL’s copy of the exhibits to the Brothers affidavit may be returned.

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Decision last updated: 12 October 2016