Linard v Wellington Shire Council
[2018] VCC 1205
•20 August 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-17-00555
| PHILLIP CHARLES LINARD | Plaintiff |
| v | |
| WELLINGTON SHIRE COUNCIL | First Defendant |
| and | |
| TOWARDS ZERO PTY LTD (ACN 131 671 317) | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21, 22, 23, 24, 25, 28 May, 18, 19 and 20 June 2018 | |
DATE OF JUDGMENT: | 20 August 2018 | |
CASE MAY BE CITED AS: | Linard v Wellington Shire Council & Anor | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1205 | |
REASONS FOR JUDGMENT
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Subject: NUISANCE
Catchwords: Nuisance - airborne litter discharged from a tip entering onto the plaintiff's hobby farm - extent to which the airborne litter was caught by intervening fences and tree lines - extent to which any airborne litter contaminated the pasture on the plaintiff's hobby farm - whether the interference with the plaintiff's enjoyment and use of his hobby farm was both substantial and unreasonable - steps taken by the defendants to prevent airborne litter entering onto the plaintiff's hobby farm - balancing the user and public utility of a tip against the allegations of nuisance made by the plaintiff - utility of injunctive relief - alternatively, whether the plaintiff had suffered any financial loss - whether the hobby farm was a viable and would produce a financial profit - methods of calculation of the financial loss - alternatively, damages for inconvenience, discomfort and intrusion - alleged interference neither substantial nor unreasonable - plaintiff failed to prove any financial loss - plaintiff failed to prove any inconvenience, discomfort and intrusion beyond negligible…
Cases Cited:Haddon v Lynch [1911] VLR 5; Walter v Selfe [1851] 4 D G & S 315; Riverman Orchards Pty Ltd v Hayden [2017] VSC 379; Sedleigh-Denfield v O’Callaghan [1940] 3 All ER 349; Sleeman v SPI Electricity Pty Ltd [2014] VSC 49; Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79
Judgment: The plaintiff’s proceeding is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Flower | FCG Legal Pty Ltd |
| For the First Defendant | Mr S Mukerjea | Minter Ellison |
| For the Second Defendant | Mr G F Hellyer | Hibbert & Hodges Lawyers |
Table of Contents
Introduction…………….......................................................................................................... 1
The case pleaded ................................................................................................................... 1
The Linard farm at Kilmany.................................................................................................. 1
The Linard farm and adjoining properties........................................................................ 2
The tip …………………........................................................................................................... 3
Compliance with the EPA license and the waste management contract................ 5
A windy place ………………………………………………………………………………..7
Windborne litter....................................................................................................................... 8
Catching the airborne litter................................................................................................ 10
The quantity of airborne litter............................................................................................ 12
The Plaintiff's evidence - windblown litter..................................................................... 12
What was the risk.................................................................................................................. 15
Zero's Collection System.................................................................................................... 18
Collection system - the expert's view.............................................................................. 20
Inconvenience, discomfort and intrusion...................................................................... 15
The EPA breaches................................................................................................................ 22
The tip - 2018 …..................................................................................................................... 23
The relevant legal principles.............................................................................................. 24
Was there substantial and unreasonable interference?............................................ 26
Other matters………............................................................................................................. 29
Profitability of the farm........................................................................................................ 30
General damages.................................................................................................................. 32
An Injunction…...................................................................................................................... 33
Orders………………….......................................................................................................... 33
HIS HONOUR:
1 Introduction
1 Phillip Linard (“Linard”) was born in Maffra in East Gippsland in Victoria. He trained as a mechanical fitter. It is the occupation which he pursued at the time when the events relevant to this litigation occurred.
2 Linard’s work as a mechanical fitter required him to fly to various work locations across Australia. It was not uncommon for him to spend up to two weeks at a work location, and then two weeks at his home in East Gippsland. At the time of trial, the availability of that work had reduced dramatically. He now occupies himself working at the local airport.[1]
[1]Transcript 110
2 The case pleaded
3 The upshot of the case pleaded by Linard was summarised by him in his opening. He claimed damages for “economic loss” as a consequence of an actionable nuisance against both defendants for a six-year period prior to the date of the filing of the writ and for one year subsequently. The calculation of that economic loss was said to be “approximately $210,000”. He also claimed general damages for inconvenience, discomfort and intrusion, and injunctive relief.[2]
[2]Transcript 23-24
3 The Linard farm at Kilmany
4 Linard purchased a small farming property known as Lot 43 Princes Highway, Kilmany (“the Linard farm”) for $299,000. The particulars of sale, forming part of the contract of sale, described the day of sale as 20 December 2005, and the day when the balance of the purchase monies were to be paid as 30 June 2006.[3] The Linard farm comprised 27.79 hectares.
[3]Exhibit D. A title search of the farm, the transfer of land and the mortgage over the land are exhibit A
5 Linard knew the former owners of the Linard farm. He had been to the Linard farm perhaps half a dozen times. Some of those occasions were for pool parties. He knew that the former owners had run cattle on the Linard farm, and had not encountered any problems in doing so.[4]
[4]Transcript 107
6 In addition to the land comprising the Linard farm, the plaintiff obtained an agricultural licence to some Crown land adjoining the Linard farm. The agricultural licence is dated 1 November 2007.[5] The schedule to the licence describes the Crown land as .8 of a hectare. The licence term is 99 years and commenced on 1 October 1994. More particularly, the licenced land is described as the unused road east of Lot 3 on LP57882 in the Parish of Wooundellah.
[5]Exhibit B
4 The Linard farm and adjoining areas
7 The parties made use of maps, photographs and plans to illustrate the Linard farm and other important features of neighbouring farms and a landfill site (“the tip”) operated by the Shire of Wellington (“Wellington”). I will refer to some of those shortly.
8 The first photograph comprising exhibit C is an aerial photograph.[6] The top of the photograph is north. To the south is a broad line which is the Princes Highway running east-west. Just above it there are numbers “7”, “8” and “9”. Immediately below those numbers is a railway line which runs east-west. Just above those numbers is a fence line. The block of land described as “TP171650” is the Linard farm.
[6]Annexure 1
9 The third page of exhibit B, the agricultural licence, is a survey plan.[7] It identifies the land described as “TP1650”, and a shaded area running diagonally from south to north. That shaded area is the .8 hectare of land which is the licenced land. The parties referred to that land as the “easement”, as shall I.
[7]Annexure 2
10 The second photograph comprising exhibit C is also an aerial photograph, which is a close-up of what I will describe as the “house block” of the Linard farm.[8] Just above the reference “TP56122” is a roadway leading from the Princes Highway heading north across the railway line and onto the Linard farm. Just inside the Linard farm the road heads north-west to a larger area which comprises the house on the Linard farm to the left, and farm buildings and water tanks to the right. There is a tree line to the south of the Linard farm block in a north-south configuration, and another tree line to the north of the house block, also in a north-south configuration.
[8]Annexure 3
11 There are very few photographs illustrating the house block. The best of those are three photographs from exhibit TZ-2 taken on 5 March 2018.[9] The first shows the internal road from the Princess Highway. The second shows the point where the driveway has turned in a north-westerly direction, ceasing at the eastern side of the house. The third shows the southern side of the house.
[9]Annexure 4
12 Exhibit WSC-14 is an aerial photograph showing the Linard farm, the adjoining farm to the west occupied by the McCann family (“the McCann’s farm”) and further to the west of the McCann’s farm is a fenced block onto which the word “Landfill” has been typed. To the east of the Linard farm is a fenced block which is an adjoining farm occupied by the Morrison family (“the Morrison’s farm”).[10] Below the word “Landfill” is a light greyish area which is the site of the actual landfill of the tip operated by Wellington.[11] Exhibit WSC-13 is an aerial photograph showing a closer view of the tip.[12]
[10]The Morrison’s farm is also shown in exhibit C and is the land described as "TP172982"
[11]Annexure 5
[12]Annexure 6
5 The tip
13 The site of the tip has been used since the late 1960s. At that time, it was operated by the Shire of Rosedale. The Environmental Protection Authority (“EPA”) first issued a license to operate the tip in 1972. Wellington operated the tip from 1994 when the Victorian State government required municipalities to amalgamate.[13]
[13]Transcript 380
14 Timothy Rowe (“Rowe”) is the manager of Natural Environment and Parks with Wellington. He has a bachelor of applied science degree in horticulture. He has occupied that role for twelve years. One of his roles involves waste management. That incorporates the management of the tip. He said that the day-to-day operation of the tip is performed by Towards Zero Pty Ltd (“Zero”) pursuant to a waste management services contract entered into by Wellington and Zero in June 2009 (“the waste management contract”).[14] Murray John Webb (“Webb”) is a director of Zero. He agreed that the waste management contract is the relevant contract between Wellington and Zero.[15]
[14]Transcript 390. The waste management contract is exhibit WSC-16, and the relevant variation to it is exhibit WSC-17
[15]Transcript 492
15 Rowe said the tip occupies approximately 80 acres of land. About 20 per cent of land is used for landfill purposes. He described the source of the waste and how it is handled by Wellington and Zero. None of that evidence was controversial. In summary, kerbside waste is collected using a compactor truck. The waste is heavily compacted into the truck. It is then tipped directly into the landfill at the tip.[16]
[16]Transcript 381
16 When Linard purchased the Linard farm in 2006, he believed that the tip was a hard landfill for car bodies and metal objects.[17] Rowe said that was not the case, and had never been the case.[18]
[17]Transcript 104
[18]Transcript 382
17 Rowe identified the relevant EPA licence and the amendments to licence[19] which permit Wellington to operate the tip, and the conditions which apply to its operation.
[19]Exhibit WSC 18, comprising licence CL67895 dated 30 June 2010, and subsequent amendments to the license dated 6 March 2013, 17 May 2013, 13 June 2016, 29 November 2016, 13 December 2016, 21 December 2017 and 24 April 2018
6 Compliance with the EPA licence and the waste management contract
18 Samantha Noch (“Noch”) is the coordinator of a sustainability team with Wellington. She has a bachelor of engineering degree in civil engineering. Her particular role is to ensure that the landfill at the tip is managed in accordance with EPA licences.[20]
[20]Transcript 467
19 Noch attended, and attends, the tip at least four times per month to ensure that Zero has met, and is meeting, its obligations under the waste management contract. She sometimes drives around the tip with Stephen Whelan (“Whelan”), who is the landfill supervisor employed by Zero. That is undertaken to look at the landfill, to detect any odours that are present, to check that the roads are manageable, to check that the waste has been covered with soil in accordance with EPA guidelines, and to check for litter that has left the tip.[21]
[21]Transcript 468
20 The reference to covering the waste with soil is a requirement of the EPA licence. When waste is tipped onto the landfill it must be covered by 30 millimetres of clay. The amendment to the licence dated 6 March 2013 contains a condition “L3” under the heading of “Landfill conditions” which requires that waste must be covered with a layer of soil at least 0.30-millimetres thick. The subsequent amendments to the licence refer to the same condition.
21 Noch applied, and applies, a method to her management of the waste services contract. She keeps a compliance checklist after she has undertaken the inspections just referred to. It is reduced to an Excel spreadsheet. Three monthly, the compliance checklists are sent to an operational auditor. She conducts contract meetings with Zero. Minutes are kept of those meetings. The meetings are usually attended by Webb, Whelan and another man, whose name she could not remember, all of whom represent Zero.[22] The discussions which she usually has with personnel from Zero is to discuss the product of her inspections, the check lists, the minutes and to ensure compliance with the EPA licence and the waste management contract.[23]
[22]Transcript 469-470
[23]Transcript 470
22 Noch also referred to an arrangement for the collection of litter which escapes from the tip. She said Zero employs a person whose specific role is to collect that litter. That person is employed about three times per week and as needed. Her understanding is that that person collects the litter from fencing and from adjoining properties to the tip.[24]
[24]Transcript 471
23 Webb said that the tip operates seven days a week. It receives kerbside waste five days per week from Monday to Friday. The amount of kerbside waste is in excess of 20 truckloads daily.[25]
[25]Transcript 496
24 Webb described the method of tipping waste consistently with the evidence of Rowe and Noch. As the waste is tipped onto the landfill, trucks bring soil from nearby which is then placed over the waste. That occurs daily and through the day.[26]
[26]Transcript 496-497
25 The parties tendered a large number of photographs for different purposes. There are some which are useful to refer to now which demonstrate what the tip looks like from various viewpoints. Exhibit HH comprises seven photographs:[27]
[27]Annexure 7
· The first is taken from the McCann’s property facing west. Looking at the photograph from left to right, it shows tipping being undertaken from a blue-coloured truck, a digging machine on the landfill and then a series of screens used to catch airborne litter.
· The second and seventh photographs are taken further back from the first photograph, showing the digging machine, a truck tipping waste and the screens on the landfill.
· The third photograph shows the digging machine behind the screens.
· The fourth photograph shows a close-up of machinery at the tipping face. The white specks in the background and in the foreground are probably airborne litter caught on fencing.
· The fifth and sixth photographs are probably taken facing north, showing a truck tipping waste, a digging machine and the screens in close up.
26 Additionally, exhibit TZ-6 comprises seven photographs, of which three are illustrative of the landfill and a view across to the Linard farm:[28]
[28]Annexure 8
· The first photograph shows a digging machine, waste and screens immediately to the right of the waste.
· The second photograph shows a close-up of the composition of the waste and the screens.
· The third photograph is the tipping face after being covered with soil, facing east, with the Linard farm in the middle background, and Linard’s house and farm buildings also in the middle background.
7 A windy place
27 Rowe said that the tip is located on the Landrock Plains which is a broad plain very exposed to windy conditions. He accepted that gusts of wind up to 100 kilometres an hour were not uncommon, with high winds generally occurring in late winter and into spring.[29]
[29]Transcript 395
28 Linard described the Sale area as very windy. He knew that when he purchased the Linard farm that it was located downwind from the tip.[30] He agreed that the Bureau of Meteorology records for the East Sale Airport for the months of October 2017 through to March 2018 demonstrated high wind activity.[31] It is evident from those records that wind speeds over 50 kilometres an hour are reasonably common.
[30]Transcript 108-109
[31]Transcript 223-224 and the Bureau of Meteorology records are exhibit TZ-1
29 Webb described the effect of high wind on waste deposited on the landfill graphically. He said that when a truck deposited kerbside waste, that plastic bag litter is lifted up to 5 metres in the air, which is blown from the landfill.[32] That was also the evidence of Rowe[33] and Whelan.[34]
[32]Transcript 496
[33]Transcript 394-395
[34]Transcript 542
8 Windborne litter
30 The volume of windborne litter discharged from the landfill at the tip carried in an easterly direction was significant, as demonstrated in a very large number of photographs tendered by the parties.[35] I will return to some of the photographs which I think best demonstrate this.
[35]Exhibit E taken in 2008, exhibit J taken in 2009, exhibit P taken in 2010, exhibit R taken in 2010, exhibit S taken in 2017, exhibit W taken in 2017, exhibit X taken in 2018, exhibit Y, a short video of the western fence line of the Linard farm, exhibit WSC-3 taken in 2011, exhibit WSC-8 taken in 2014, exhibit WSC-9 taken in 2016, and exhibit TZ-2 taken in 2018
31 Linard complained about the volume of windborne litter from the landfill entering onto the Linard farm in August 2007. He contacted Mr Geordie Rowley, a customer service employee of Wellington. He referred his complaint to another employee.[36]
[36]Exhibit F
32 Linard then emailed Peter Cleary, who was the Shire President in 2007, enclosing a number of photographs taken in October 2008. The photographs are of poor quality. They show some litter on the Linard farm and litter caught in a fence.[37]
[37]Exhibit G
33 Linard engaged Clocktower Legal of Sale to act on his behalf. A number of letters were sent to Wellington on Linard’s behalf raising the issue of airborne litter entering onto the Linard farm, demanding that Wellington prevent that from occurring, and alleging that Linard was unable to run livestock on the Linard farm and produce hay/fodder. The following is a summary of the correspondence passing between Clocktower Legal, Wellington and the EPA:
· Clocktower Legal wrote to Wellington by letter dated 1 March 2010 raising the issue of windborne litter and the plaintiff’s use of the Linard farm.[38]
[38]Exhibit K
· Wellington wrote to Clocktower Legal by letter dated 9 March 2010 referring to the fence erected on the easement by Wellington. I will refer to this fence later when I come to more particularly describe the land between the tip and the western boundary of the Linard farm.[39]
[39]Exhibit L
· The EPA wrote to Clocktower Legal by letter dated 24 March 2010 referring to the plaintiff’s complaint of airborne litter entering onto the Linard farm, and a compliance site assessment which the EPA intended to perform of the tip.[40]
[40]Exhibit M
· Clocktower Legal wrote to Wellington by letter dated 26 October 2010 raising the issue of windborne litter and the fence erected on the easement.[41]
[41]Exhibit N
· Wellington wrote to Clocktower Legal by letter dated 21 December 2010 which addressed the complaints of Linard of windborne litter entering onto the Linard farm. It referred to steps taken which would mitigate the volume of windblown litter, and a proposed system of collection of it.[42]
[42]Exhibit O
34 The next significant contact between Linard and Wellington was a meeting held at the Linard farm on 27 September 2011. Linard, Rowe, John Tatterson, an employee of Wellington, and Linard’s solicitor attended the meeting. Minutes were kept of the meeting which were reduced into a file note dated 28 September 2011. Linard repeated his complaint of windborne litter entering onto the Linard farm. Wellington repeated that steps had been taken to mitigate windborne litter entering onto the Linard farm.[43]
[43]Exhibit Q
35 Linard ceased his retainer of Clocktower Legal some time in 2011 or thereabouts, and perhaps after the meeting which occurred on 27 September 2011, because no further correspondence passed between Clocktower Legal and Wellington. However, the plaintiff maintained that the issue of windborne litter entering onto the Linard farm was not addressed satisfactorily, and has, to the present time, continued to prevent him from using the farm to run livestock and produce hay/fodder.
9 Catching the airborne litter
36 So far, what is very clear is that the waste deposited on the landfill was, and is, often picked up by windy conditions that prevail at the locality of the tip. The airborne litter mostly comprises plastic bags.
37 There was a significant amount of evidence adduced by Wellington and Zero of the physical features of the landfill, fences, tree lines and litter collection which Wellington and Zero maintained reduced airborne litter entering onto the Linard farm and interfering to any extent with Linard’s desire to run cattle and produce hay/fodder.
38 The most effective way to demonstrate the mitigatory steps taken by Wellington and Zero is through a selection of the photographs. I will start from the landfill shown in a number of the photographs and trace those mitigatory steps moving east across the McCann’s land to the western boundary of the Linard farm.
39 When refuse is deposited on the landfill, mobile litter screens are placed east of that point. Rowe described the dimensions of the mobile litter screens being 3.5 metres high by 5 metres long. There are three such screens in use.[44] Their purpose is to catch any litter which becomes airborne. It is clear that they are not completely effective in doing so.[45]
[44]Transcript 399.
[45]Exhibit WSC-3 illustrates the landfill and the three mobile litter screens. Two photographs in exhibit WSC-21 show a close-up of the mobile litter screens. Annexure 9
40 Rowe described a boundary fence of the tip which is 400 metres long. 250 metres of the fence is along the eastern boundary, and the balance wraps around the southern boundary. Inside the boundary is a 5-metre high fence.[46] Its purpose is to catch any litter that becomes airborne and which has not been caught by the mobile litter screens. It is clear that the fence is not completely effective in doing so.
[46]Transcript 399. The first photograph in exhibit WSC-20. Annexure 10
41 Rowe described that further east and almost immediately behind the boundary fence and the 5-metre high fence is a compact tree line comprising a combination of cypress and eucalyptus trees. According to Rowe, they catch the odd bit of airborne litter.[47]
[47]The first photograph in exhibit WSE 20
42 Wellington constructed a fence within the easement parallel to the boundary fence between the McCann’s farm and the Linard farm (“the easement fence”). It was constructed before the meeting that occurred at the Linard farm on 27 September 2011. Linard believes that the easement fence was built in 2009. It is 600 metres in length and 2 metres in height.[48] Linard complained that the fence was in poor condition. Rowe said that it was subsequently inspected and was repaired by the use of stronger gauge cyclone mesh comprising 2.5-millimetre gauge with a 50-millimetre diamond pattern. The length of the fence that was replaced was about 400 metres. [49]
[48]Transcript 43
[49]Transcript 422. There are many photographs which illustrate the fence. Exhibit WSC-9 is a reasonable illustration of a close-up of the fence and its proximity to the boundary fence with the McCann’s farm. Annexure 11.
43 Wellington and Zero acknowledged that despite the employment of each of these steps to catch airborne litter, that some airborne litter does enter onto the Linard farm.
44 Additionally, Whelan described a system of airborne litter collection employed by employees of Zero. The system comprises an assessment of the presence of windblown litter on the McCann’s farm and the Linard farm. He said that if there has been high wind, then the employees will always go and have a look to see whether there is any windblown litter on the McCann’s farm and the Linard farm, and if there is they will pick it up. Access to the McCann’s farm is obtained through a gate which is never locked.[50]
[50]Transcript 543-544
10 The quantity of airborne litter
45 I do not have any doubt that a fair amount of airborne litter escapes from the tip when there is sufficient wind blowing from the west across the tip which is caught against the boundary fence between the McCann’s farm and the Linard farm, and against the easement fence.
46 There are any number of photographs illustrating those fences and significant numbers of plastic bags caught against those fences.[51] The most graphic illustration of windborne litter against those fences is the film taken by Linard. He took the film a couple of months before the commencement of the trial. It was taken of a portion of the fence about 300 metres north of the southern boundary of the Linard farm.
[51]For example exhibit J, exhibit P, exhibit R, and exhibit WSC-9
47 The film appears to have been taken on a high wind day. There is an audible rushing of wind and a thrashing sound of plastic bags caught against the fences caused by wind coming from the west.[52]
[52]Exhibit Y
11 The Plaintiff’s evidence – windblown litter
48 The plaintiff said that he purchased the Linard farm as a hobby farm with a view to grazing cattle to produce supplementary income.[53] After taking possession of the Linard farm in 2006, he permitted a man he worked with, later identified as Bruce Treasure (“Treasure”), and the Morrisons to agist cattle on the Linard farm for about eight to nine months. He said he did so to see how the cattle would fare. It was my impression that it was his way of familiarising himself with the grazing of cattle on the Linard farm.[54]
[53]Transcript 28
[54]Transcript 28
49 Linard estimated that the cattle agisted by the Morrisons numbered about thirty-five or more cattle.[55] He estimated that the cattle agisted by Treasure numbered about twenty.
[55]Transcript 113
50 With the aid of a photograph of two Friesian-Angus cattle,[56] Linard described airborne litter entering onto the Linard farm which he said he could not control. It was as a result of that experience that he returned the agisted cattle without charging any agistment fees.[57] He later said that he did not send Treasure’s cattle back. Treasure came and got them from him.[58]
[56]Exhibit E
[57]Transcript 29
[58]Transcript 117
51 However, that evidence was later seriously contradicted by Linard when he was cross-examined at some length regarding the period of time that the Morrisons agisted cattle on the Linard farm. He repeatedly said that he could not remember when Treasure and the Morrisons first agisted their cattle on the Linard farm. He repeatedly said that he could not remember when the Morrison’s cattle were removed from the Linard farm. However, he eventually agreed that the Morrison’s cattle remained agisted on the Linard farm from at least 13 October 2008 until some time after 28 September 2011.[59]
[59]Transcript 155-156
52 That evidence is in stark contrast to the instructions Linard gave to Dr Shepherd, veterinary surgeon:
“…
2.Mr Linard ran 40 cows with approximately 25-30 calves across the property. This is a similar number of stock and stocking rate to a neighbouring property.
…
4.Mr Linard totally destocked his farm of all grazing cattle on identification of the contamination problem in 2008. The farm has remained destocked since this time.”
53 Linard’s opening did not condescend to the farming operation which he had undertaken, and intended to undertake. It was implicit throughout the opening that the instructions given to Dr Shepherd were consistent with the evidence Linard was very likely to give.
54 The instructions Linard gave to Dr Shepherd are wrong. Firstly, he did not inform Dr Shepherd that the cattle were not his. Secondly, the plaintiff never ran cattle himself. Thirdly, because he never ran cattle himself he could not have engaged in destocking. Fourthly, the cattle present on the Linard farm were significantly less in numbers (about 35) and for a significantly longer period of time (some time after 28 September 2011).
55 When the content of information relied on by Dr Shepherd was put to the plaintiff, he readily admitted that it was wrong.[60] Dr Shepherd said he would like to have known that the Morrison’s cattle were agisted on the Linard farm until some time after 28 September 2011. However, he did not accept that the combination of cattle agisted for that period of time without a recorded death of any cattle were not relevant to his assessment of the risk to cattle posed by windblown litter entering onto the Linard farm.[61]
[60]Transcript 117, 120 and 122
[61]Transcript 305-310
56 I think the plaintiff was being deliberately evasive about whose cattle were agisted on the Linard farm, and the number of cattle agisted in the period of time over which they were agisted. It was only when he was confronted with evidence which painted a different picture that he conceded the facts relevant to the Morrison’s agistment of cattle on the Linard farm.
57 This evidence is substantially contrary to the case Linard opened of a farm so contaminated by windblown litter that it prevented cattle being run on the Linard farm because of the inherent risk of consumption of the airborne litter by the cattle which would either lead to a deterioration in their health or their death.
58 Furthermore, the instructions Linard gave to Dr Shepherd were an attempt to paint a grave picture of a farming venture being thwarted. If those instructions were looked at in a vacuum, then anyone accepting those instructions would almost inevitably be led to the conclusion that the cause of destocking of such a large number of cattle on such a small farm must have been caused by the inherent risk of consumption of the airborne litter by the cattle which would either lead to a deterioration in their health or their death. Indeed, Dr Shepherd premised his opinion on those instructions.
59 The fact that the Morrison’s cattle were agisted on the Linard farm for approximately three years makes it difficult to accept that the plaintiff could not have done the same over those three years, and indeed, beyond late 2011 and up to the present time.
12 What was the risk?
60 The evidence clearly demonstrates that airborne litter escaped, and continues to escape, from the tip, and is carried by a westerly wind across the McCann’s farm and at least to the fence line between the McCann’s farm and the Linard farm.
61 The vast majority of the photographs relied on by Linard show airborne litter caught on fences and trees in between the landfill and the fence line between the Morrison’s farm and the Linard farm. There are very few photographs of the pasture of the Linard farm showing airborne litter strewn across the pasture.
62 The fact that airborne litter does escape from the tip and is caught on fences and trees is relevant to a point, but it is the extent to which it goes beyond the fence line between the McCann’s farm and the Linard farm and contaminates the pasture of the Linard farm which is relevant.
63 I understood the way Linard described the actionable nuisance to be put in two ways:
· Firstly, cattle are likely to be attracted to the airborne litter caught on the fence on the easement because of the attraction to the odour given off by whatever foodstuffs may have been in the airborne litter.
· Secondly, cattle will come across airborne litter lying on the pasture of the farm and are attracted to it for the same reason.
64 It was put to Linard that the photographs he relied upon taken in 2009 do not show a single plastic bag on or in the pasture of the Linard farm. He gave a non-responsive answer, referring to unseen microplastics. I infer that his answer meant that the photographs indeed did not show a single plastic bag. He later agreed that the fence on the easement was minimising the amount of airborne litter entering onto the Linard farm.[62]
[62]Transcript 157-158
65 The proposition put to the Linard regarding what the photographs show in 2009 is correct, and indeed, in subsequent photographs:
· Exhibit H shows some airborne litter on the pasture of the Linard farm, and around the pool adjacent to Linard’s house.[63]
[63]Taken in 2008
· Exhibit J shows airborne litter caught in the fence at the easement, but no litter on the pasture between that fence and the point where the photographer is standing adjacent to Linard’s house.[64]
[64]Taken in 2009
· Exhibit P shows some airborne litter on the pasture, and around the pool in three photographs, but most of the photographs do not show much airborne litter, if any at all, on the pasture on the Linard farm.[65]
[65]Taken in 2010
· Exhibit R shows some airborne litter on the pasture and against a stand of trees, but, again, most of the photographs do not show much airborne litter, if any at all, in the pasture on the Linard farm.[66]
[66]Taken in 2010
· Exhibit WSC-6 shows no airborne litter on the pasture on the Linard farm.[67]
[67]Taken in 2011
· Exhibit WSC-7 shows no airborne litter on the pasture on the Linard farm.[68]
[68]Taken in 2013
· Exhibit WSC-8 shows no airborne litter on the pasture on the Linard farm.[69]
[69]Taken in 2016
· Exhibit S appears to show some airborne litter, but, again, most of the photographs do not show much airborne litter, if any at all, on the pasture on the Linard farm.[70]
[70]Taken in 2017
· Exhibit TZ-11 appears to show something which looks like airborne litter on the pasture of the Linard farm, but otherwise all of the other photographs do not.[71]
[71]Taken in 2017
· Exhibit TZ-2 shows some airborne litter on the pasture of the Linard farm.[72]
[72]Taken in 2018
· Exhibit TZ-9 shows no airborne litter on the pasture on the Linard farm.[73]
[73]Taken in 2018
· Exhibit TZ-11 appears to show something which looks like airborne litter on the pasture of the Linard farm, but otherwise all of the other photographs do not.[74]
[74]
66 This evidence supports the conclusion that a large quantity airborne litter is caught on the easement fence, and that the extent to which it goes beyond that fence and onto the pasture of the Linard farm is relatively minor. There is no evidence to support the conclusion that there are microplastics present in the pasture. Furthermore, if that were the case, then I would have expected that Linard would have taken photographs of it. The fact is there is no relevant evidence from Linard about this nor any photographic evidence leads me to conclude that there are either no microplastics present in the pasture or the quantity of it is negligible.
13 Zero’s Collection System
67 Webb described a system of regular litter collections employed by Zero to collect windblown litter that escapes from the tip. He specifically referred to an arrangement with the McCanns who permit access to their farm. Zero employees enter onto into the McCann’s farm to collect whatever airborne litter is present which has come from the tip.[75] The system of collection was, and is, available to Linard as well.
[75]Transcript 499 and 560
68 Whelan referred to a diary which he kept in which he noted occasions when he had contact with Linard, or had reason to record something relevant to Linard:[76]
[76]Extracts of his diary are exhibit TZ-7
· On 25 May 2017, he telephoned Linard asking him whether he had any problems with airborne litter on the Linard farm, and to obtain permission for employees of Zero to collect it. He recalled Linard suggesting that they meet to discuss what needed to be done. The meeting did not eventuate.[77]
[77]Transcript 545-546
· On 16 August 2017, he sent Linard a message regarding collecting litter from the Linard farm. He received no reply. He telephoned Linard, but his call was not answered.[78]
[78]Transcript 547
· On 22 August 2017, he sent Linard a message regarding collecting litter from the Linard farm. He also left a voice message. Linard replied, giving permission for Zero’s employees to enter onto the Linard farm. He believed that the employees did enter onto the Linard farm, but he did not record whether that occurred or not.[79]
[79]Transcript 547-548
· On 26 September 2017, he attempted to make contact with Linard unsuccessfully. He noted that he had not received a reply on 22 or 28 September from Linard.[80]
[80]Transcript 548
· On 10 October 2017, he sent a message to Linard regarding collecting litter from the Linard farm. He received no reply. Linard replied, requesting that litter be collected, but not until after an inspection of his property had occurred.[81]
[81]Transcript 549
· On 13 October 2017, Zero’s employees entered onto the Linard farm and undertook a collection of litter.[82]
[82]Transcript 549
· On 9 January 2018, he rang Linard and asked whether Zero’s employees could enter onto the Linard farm to undertake a collection of litter. Linard replied that they could, and that was undertaken on 10 January 2018.[83]
[83]Transcript 549
· On 15 February 2018, he rang Linard, but he received no answer. He also sent a message. Linard replied, saying he was waiting on directions from his legal advisors. Linard sent a message to him asking who had removed “the EPA evidence”. All he could say was that Zero’s employees had entered onto the McCann’s farm, and may have removed litter from the boundary fence between the McCann’s farm and the Linard farm.[84]
[84]Transcript 550
69 Linard was cross-examined about his preparedness to allow Zero’s employees to enter onto the Linard farm to collect litter. He said that he wanted a text message or an email notifying him of the intention of Zero’s employees to enter onto the Linard farm to collect litter. He denied that he has refused those same employees entry onto the Linard farm.[85] Whelan said that Linard has made no request of Zero to arrange for the collection of litter from the Linard farm.[86]
[85]Transcript 221-222
[86]Transcript 555
14 Collection system – the experts’ view
70 The plaintiff engaged Dr Shepherd, who I have referred to earlier in these Reasons. Zero engaged Mr Phillips. Mr Phillips’ qualifications are a Bachelor of Agricultural Science and a Master of Business Administration. His expertise lies in, among other things, farm and business management.
71 Dr Shepherd inspected the Linard farm on 2 September 2016 and 7 November 2016. He prepared a report dated 10 November 2016.[87] After inspecting the Linard farm on 2 September 2016, he said that he observed “some minor contamination of pasture and laneways”, and after inspecting the Linard farm on 7 November 2016, he observed “a higher level of contamination”. That higher level of contamination appears to have been restricted to airborne litter caught on the fence in the easement.[88]
[87]Exhibit BB
[88]Exhibit BB, pages 8 and 9
72 Dr Shepherd said that the levels of contamination of the pasture on the Linard farm which he observed on 2 September 2016 would not have prevented Linard from running a cattle operation on the Linard farm on a full-time basis.[89] He said that Linard could use a quad bike or a utility vehicle to move through the Linard farm to collect litter from the pasture. The difficulty in undertaking that task would depend on the time of the year, for example it would require more “runs” before hay cutting when the pasture would be significantly dense and tall.[90] However, he said it could be done either by the plaintiff or by hiring a labourer at about $40 an hour for a day.[91]
[89]Transcript 293-294
[90]Transcript 346
[91]Transcript 346-347
73 Mr Phillips inspected the Linard farm on 12 October 2017. He prepared a report dated 9 November 2017.[92] After inspecting the Linard farm on that occasion, he said that he observed light rates of plastic contamination across the pastures of the Linard farm and some accumulation on the fence in the easement. He conducted a further inspection on 5 March 2018 for the specific purpose of undertaking “an accurate bag count on the property”.[93]
[92]Exhibit TZ-10
[93]Transcript 568-569
74 Mr Phillips said that the inspection on 5 March 2018 was conducted in a methodical fashion. He was accompanied by a photographer, who took seven photographs.[94] He provided a further report dated 19 April 2018.[95] He noted the distribution of “plastic items” as 37 along fence lines, 42 on open pasture and 26 in plantation trees. He said that the inspection which identified that distribution of plastic items took 2.25 hours. He considered that someone on a quad bike would be able to do a collection of those plastic items in about two hours or less.[96]
[94]Exhibit TZ-11
[95]Exhibit TZ-12
[96]Exhibit TZ-12, pages 1-2, and Transcript 568-569
75 The differences between the opinions of Dr Shepherd and Mr Phillips were rather more matters of emphasis relevant to the contamination of the Linard farm by airborne litter. Where they agreed was that the contamination was minor, and that what they saw at the time of their inspections was capable of being collected in a relatively short period of time at minimal cost either by Linard or someone engaged by him to do that work on his behalf.
15 Inconvenience, discomfort and intrusion
76 In addition to Linard’s claim that his ambition to be a farmer has been thwarted, is his claim that his enjoyment of his hobby farm has been lost. The two are obviously intertwined. He referred to photographs of the fenced-in pool adjacent to the house on the Linard farm which show some plastic bags within the fenced-in area of the pool, significant weeds growing in adjacent garden beds, and a reduced level of water in the pool, which is obviously very dirty.[97]
[97]The most representative photographs of the pool area are one in exhibit P and four in exhibit H
77 Linard described the presence of airborne litter in the pool area. He also described attempts to clean up not only the presence of airborne litter, but also dust which I assume he believes is airborne dust coming from the tip. He said that the extent to which there is airborne litter and dust fouling the pool area and the pool has led him to cease using the pool area for social gatherings. Furthermore, that he did not believe the cleaning up of that area was worth it anymore because after cleaning it up, more airborne litter would arrive.[98] I will return to this later in these Reasons.
[98]Transcript 101
16 The EPA breaches
78 Linard placed a great deal of emphasis on condition WM3 of the relevant EPA licences, as amended. The licence issued on 30 June 2010 contained a Condition WM3 which provided:
“You must ensure that litter is not deposited beyond the boundaries of the premises.”
79 That licence condition was amended on 29 November 2016 to provide:
“You must ensure that litter originating from the premises is not present beyond the boundaries of the premises.”[99]
[99]The licence issued on 30 June 2010 and the amendment dated 29 November 2016 are contained in exhibit WSC-18
80 Rowe and Webb both admitted that many of the photographs tendered into evidence showed airborne litter discharged from the tip in breach of Condition WM3, as amended.[100]
[100]Rowe at Transcript 444 and following, and Webb at Transcript 518 and following
81 The purpose served by the admission of this evidence was an attempt to establish a standard by which the conduct of Wellington and Zero could be assessed. I will return to the relevance of this evidence later in these Reasons.
17 The tip – 2018
82 Wellington has undertaken operational changes to the manner in which rubbish is deposited at the tip. Rowe gave extensive evidence of the construction of cells into which kerbside rubbish is now deposited at the tip.
83 The construction of the cells is partly shown in exhibit WSC-15. The plan shows areas bounded by a pink line and a yellow line. Those areas were the areas described as landfill which I have referred to earlier and which are shown in the photographs which I have already identified. Rowe described those areas as undergoing a process of rehabilitation.
84 Rowe described the process of rehabilitation as “a highly engineered exercise”. It involves the location of particular soil types to a depth of approximately 2 metres, made up of a base layer of 1 metre of clay, plastic liner welded together to exclude the migration of water and then covered with between 600 millimetres and 1 meter of lesser clay and then 200 millimetres of topsoil for the purpose of the growth of grass. He expected that the rehabilitation process would be completed by 2022.[101]
[101]Transcript 385
85 One of the photographs in exhibit TZ-6 shows a partly rehabilitated area of the landfill taken from a westerly viewpoint of an area of the landfill to the east, with the Linard farm in the far background. This process of rehabilitation has been undertaken in accordance with the EPA licence requirements.[102]
[102]Transcript 385. Whelan gave similar, but limited evidence of the rehabilitation of the landfill at Transcript 539
86 Exhibit WSC-15 also shows areas to the left of the rehabilitated landfill which are described as “Cell 1” and “Cell 2”. A cell under construction is shown in one of the photographs comprising exhibit TZ-6. With the aid of exhibits WSC-13 and 15, Rowe described the cells as being in a “U” configuration with a depth of 10 metres in below surrounding ground level.[103] Cell 1 is used to deposit kerbside waste. It has a life cycle of use of four years. It is now three quarters full.[104] The cost of construction of Cell 1 was $1.5 million. The cost of construction of Cell 2 is close to $2 million.[105]
[103]Transcript 383-384. Webb gave similar evidence at Transcript 495
[104]Transcript 386-388
[105]Transcript 388
87 Currently, kerbside waste is being tipped into Cell 2A.[106] That cell comprises Cell 2 which has been divided in half.[107] The process is for kerbside waste to be tipped into Cell 1, then Cell 2, and then Cell 3. When each of those cells have reached capacity they will then be rehabilitated together, and I infer in a similar way to the rehabilitation of the landfill.[108]
[106]Whelan gave similar evidence of the use of these cells for depositing kerbside waste at Transcript 541
[107]Transcript 386
[108]Transcript 387
88 Wellington submitted that I should infer that the tipping operation which mostly produced windborne litter was the open landfill. It is no longer in operation, therefore, the likelihood of similar volumes of windborne litter occurring is reduced because of the use of the cells which are below ground level.
89 Linard was shown photographs of fencing, tree lines and the purpose-built cells for the purpose of suggesting to him that the incidence of windborne litter has been effectively minimised. He said that had not happened.[109]
[109]Transcript 206
18 The relevant legal principles
90 The parties made reasonably lengthy and helpful submissions relevant to the elements of the tort of nuisance. My consideration and analysis of their submissions disclose that there was little dispute between them regarding what those elements are. The authorities appear to me to demonstrate that it is for Linard to establish that the interference to his enjoyment and use of the Linard farm was, and is, both substantial and unreasonable.[110]
[110]Haddon v Lynch [1911] VLR 5 at 9, applying the observations of Knight Bruce L J, in Walter v Selfe [1851] 4 D G & S 315, and Riverman Orchards Pty Ltd v Hayden [2017] VSC 379 at paragraphs [172]-[177] (“Riverman Orchards”)
91 The parties referred me to Sedleigh-Denfield v O’Callaghan[111] which has been accepted in Victoria as containing a classic statement that mere interference that results in damage will not constitute an actionable nuisance. Essentially, a balance must be struck between the relevant competing rights of neighbours. Wright LJ said, in that connection:
[111][1940] 3 All ER 349
“… An occupier may make in many ways a use of his land which causes damage to the neighbouring landowners yet be free from liability. … A balance has to be maintained between the right of the occupier to do what he likes with his own and the right of his neighbour not to be interfered with. It is impossible to give any precise or universal formula, but it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or, more correctly, in a particular society. … The gist of the present action; however, is the unreasonable and unjustified interference by the defendants in the user of their land with the plaintiff’s right to enjoy his property. Negligence, moreover, is not a necessary condition of a claim for nuisance. What is done may be done deliberately, and in good faith, and in a genuine belief that it is justified … .”[112]
[112]At 364-365. It has recently been applied in Sleeman v SPI Electricity Pty Ltd [2014] VSC 49 at paragraph [34], and Riverman Orchards at paragraphs [172]-[177]
92 Some of the considerations which are relevant in determining whether there is an actionable nuisance were referred to in Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management[113] in which McLure P observed:
[113] [2012] WASCA 79
“Nuisance protects a claimant’s interest in the beneficial use of land. It is not confined to the actual use of the soil but extends to the pleasure, comfort and enjoyment which a person normally derives from occupancy of land. Thus, nuisance covers physical damage to property and non-physical damage. To constitute a nuisance, the interference must be unreasonable. In making that judgment, regard is had to a variety of factors including: the nature and extent of the harm or interference; the social or public interest value in the defendant's activity; the hypersensitivity (if any) of the user or use of the claimant's land; the nature of established uses in the locality (eg residential, industrial, rural); whether all reasonable precautions were taken to minimise any interference; and the type of damage suffered.
This exercise involves weighing the respective rights of the parties in the use of their land to make a value judgment as to whether the interference is unreasonable. Although the 'fault' of the defendant may be a relevant consideration in an assessment of whether the interference with the claimant's enjoyment of land is unreasonable, the duty not to expose one's neighbours to nuisance is not necessarily discharged by the exercise of reasonable care. Liability in nuisance is strict. Once a prima facie case has been established, it is for the defendant to prove its defence.”[114]
[114]at [118]-[119], followed in Riverman Orchards at paragraph [180]
93 In Riverman Orchards, Dixon J noted that whether interference is unreasonable or otherwise is an objective question.[115]
[115]At paragraph [180]
19 Was there substantial and unreasonable interference?
94 The parties were in agreement that the Landrock Plains are exposed to intermittent high winds. Those high winds whip across the tip with sufficient force to lift litter from the landfill which is not capable of being caught by the number of steps taken by Wellington and Zero to prevent it from being discharged from the tip and across the Linard farm land to the east of the tip.
95 Furthermore, the parties are also in agreement that despite the number of steps that have been taken in that respect, airborne litter is caught against the fence between the McCann’s farm and the Linard farm, and on the easement fence. The many photographs tendered in evidence taken between 2008 and 2018 demonstrate that with abundant clarity, as does the film.
96 Where the parties part company is whether the discharge of airborne litter has interfered with Linard’s use and enjoyment of the Linard farm. I do not accept his evidence that it has.
97 The central platform in Linard’s case was the representations he made to Dr Shepherd that he ran 40 cows and approximately 25 to 30 calves on the Linard farm. The degree of contamination by airborne litter forced him to destock the Linard farm. He was resistant to the cross-examination regarding the time over which Treasure and the McCanns agisted cattle on the Linard farm. He appeared to me to want to maintain the fact of destocking until the point arrived where he was forced to acknowledge that the instructions he gave Dr Shepherd were wrong.
98 The fact is that the Morrisons agisted a significant number of their cattle on the Linard farm from at least 13 October 2008 until some time after 28 September 2011. They did so with the approval of Linard, and they did so without incident, and what I mean by without incident is that there is no evidence adduced by Linard to point to any of their cattle being malnourished or dying because of the consumption of airborne litter, and in particular, plastic bags. The evidence is to the contrary.
99 What that raises is this question - if the Morrisons were able to agist cattle so successfully on the Linard farm, then what was preventing Linard from doing the same? They in fact did the very thing that he said he wanted to do, but could not do because of the volume of airborne litter contaminating the Linard farm.
100 I accept without question that some airborne litter enters the Linard farm. There is evidence to demonstrate that, but it is relatively insignificant. Dr Shepherd and Mr Phillips undertook inspections of the Linard farm for the express purpose of giving opinions relevant to whether the airborne litter entering onto the Linard farm would interfere with Linard’s capacity to successfully graze cattle. They considered that what airborne litter entered onto the Linard farm could easily be removed by the use of a quad bike or a utility driving across the Linard farm, and no doubt stopping at various points to pick up airborne litter. That task was said to be something that could be undertaken in less than a day and at little cost incurred by engaging the day labourer.
101 Although, the parties referred repeatedly to the McCann’s farm, and the fact that the McCanns have grazed cattle on their farm throughout the period from Linard’s purchase of the Linard farm up to the present time, the McCanns were not called to give evidence. I was not invited to draw an adverse inference against any of the parties for the failure to call the McCanns. In the end what I was invited to do was simply to accept that the McCann’s farm sits between the tip and the Linard farm and is likely to be more exposed to airborne litter than the Linard farm. The latter must be the case, because the photographs, and in particular, the film taken by Linard, demonstrate significant quantities of airborne litter caught on the fence between the McCann’s farm and the Linard farm, and on the easement fence.
102 I am reluctant to make much of the McCann’s farming activity, because there is no evidence from the McCanns about their farming practices, and what steps, if any, they have taken to ameliorate airborne litter entering onto their farm.
103 It has not gone unnoticed by me that the majority of the photographs, and the video, relied on by Linard are of fence lines on which airborne litter has been caught. There are very few photographs of the pasture of the Linard farm showing significant contamination. His answers to cross-examination based upon photographs of the pasture was to say that there are unseen microplastics within the pasture. No photographs were produced demonstrating the presence of microplastics, and if that was an issue, I would have expected that Dr Shepherd and Mr Phillips would have made some comment about it. It was not something he had raised previously, but only at the trial.
104 I was left with the strong impression from the evidence of Dr Shepherd and Mr Phillips that the presence of airborne litter on the Linard farm is not an impediment to Linard grazing cattle to the carrying capacity of the Linard farm.
105 Additionally, Zero has devised and implemented a system of collection of airborne litter discharged from the tip. It is a system which is available to Linard and would probably significantly diminish airborne litter either entering onto the Linard farm and remaining on the Linard farm. The evidence of Whelan left me with a sense that there were times when Linard was reluctant to allow Zero’s employees onto the Linard farm. That is in contrast to the arrangement between Zero and the McCanns, which permits Zero’s employees to enter onto their farm for the purpose of inspecting it to determine whether there is the presence of airborne litter on it, and if so, to take steps to remove it.
106 The evidence of Linard relevant to the pool area and the photographs he produced of a pool show the pool with a reduced level of dirt-stained water and some plastic bags in the vicinity of the pool deck. He said that what is shown in the photographs is consistent with constant presence of airborne litter which interferes with his use of the pool. I find that evidence difficult to accept. Firstly, it is unlikely that there would be much more airborne litter entering the pool area than enters onto the pasture of the Linard farm. Secondly, what is observable in the photographs could be easily removed. Thirdly, the evidence of dust or dirt in the water is not something which is part of his claim. I accept his evidence that he has abandoned that area because the photographs make it quite evident that he has done so. I do not accept that has occurred because of a large volume of airborne litter, but rather his neglect of an area which would probably take him little time to maintain.
107 I do not accept that the entry of airborne litter onto the Linard farm constitutes an actionable nuisance. On the findings I have made, the level of interference does not equate to being substantial and/or unreasonable.
20 Other matters
108 Wellington and Zero made other submissions based upon a finding that there was, and is, an actionable nuisance. Those submissions principally went to whether Linard has actually suffered a financial loss and/or is entitled to any damages, the extent of Zero’s liability and the liability of its predecessor, and whether I should grant an injunction framed in some way to stop the discharge of airborne litter from the tip.
109 Whilst there are many other subsidiary issues, I do not propose to serially deal with them, because that has now become unnecessary given my primary findings.
110 However, it is common enough in proceedings such as this for the judge to proceed to deal with some of the other primary issues upon the footing that if the primary findings are wrong, then attention must be given to those other issues.
111 Therefore, I propose to deal with the question of damages and the injunction on the assumption that the actionable nuisance is both substantial and unreasonable.
21 Profitability of the Linard farm
112 If I had found that there was an actionable nuisance, that is, that the contamination of the pasture of the Linard arm was both substantial and unreasonable, then logically I would have considered the Linard’s claim for damages.
113 Linard’s claim for damages was based upon the loss of a chance to conduct a farming operation, and damages for inconvenience, discomfort and intrusion caused by the interference with his use of the Linard farm.
114 The battleground was set by Dr Shepherd and Mr Phillips, who attacked the question of the calculation of the plaintiff’s loss of chance very differently, but in the end, they both considered that it was very unlikely that the plaintiff would have realised a profit from a farming operation comprising grazing cattle and the production of hay/fodder.
115 Linard’s evidence relevant to what farming operation he had in mind when he purchased the Linard farm is scant. His principal income earning activity is, and was, as a mechanical fitter. He described the Linard farm as being a hobby farm which he hoped would generate supplementary income.[116] Indeed, the plaintiff had never conducted a farming operation beforehand, so there was no evidence to demonstrate that he possessed the necessary skills and know-how to successfully conduct a farming operation on the Linard farm. He was content to leave it to Dr Shepherd to describe the capacity of the Linard farm to be used as a farming operation for the purpose of generating income.
[116]Transcript 9, 24 and 28
116 Dr Shepherd assessed Linard’s loss of chance based upon the Victorian Livestock Farm Monitor Project report of 2014-2015 (“the VLFMP report”).[117] He calculated the lost income at $22,745 per annum, equating to $181,960 in the years from 2008 to 2016. The basis upon which he used the VLFMP report and its utility was challenged by Wellington and Zero, as was his application of the principles which underwrite the use of the VLFMP report.
[117]Dr Shepherd’s report is exhibit BB, and the evidence he relied on and the analysis he undertook in assessing the loss of chance is at pages 13-15 of his report. The VLFMP report is exhibit CC.
117 Mr Phillips assessed Linard’s loss of chance very differently, based upon historical gross margins having regard to stocking capacity of the Linard farm and the quality of the farm set up.[118] Based upon a number of factors, he calculated the total gross margin for a property of the size of the Linard farm and considered, over an eight-year period between 2009 and 2017, that the Linard farm would probably have produced a gross margin of $72,599.[119] That figure does not take into account operating and overhead expenses, such as labour, insurance, rates, repairs, depreciation, administration and other expenses.
[118]Mr Phillip’s report is exhibit TZ-10, and the evidence he relied on and the analysis he undertook in assessing the loss of chance is at pages 3-4 of his report
[119]The factors he relied on are set out on pages 3-4 of his report, exhibit TZ-12
118 The issue of the methodology to be used in calculating the loss of chance and the end result of whichever methodology was used consumed a significant proportion of the time that Dr Shepherd and Mr Phillips spent giving evidence. I do not propose to summarise how the challenges to their methodology and conclusions were undertaken, preferring to turn to the conclusions they reached relevant to whether Linard could operate a profitable farming operation.
119 It is clear that Mr Phillips was of the opinion that given the size of the Linard farm, its capacity to be stocked, and its capacity to produce hay/fodder against the costs of running a farming operation meant that it was unlikely that the farming operation proposed by Linard would have ever realised a net profit.
120 Dr Shepherd was cross-examined at length regarding the methodology he used, and the ultimate question of whether he agreed or disagreed with the conclusion reached by Mr Phillips whether the farming operation proposed by Linard would ever have realised a net profit. The critically important answer he gave was that a “small farm” might have a greater capacity to combine resources to produce beef when compared with a commercial producer; however, that because of the size of a small farm, that it would not be viable in a net profit sense.[120] That evidence was directly related to the profitability or otherwise of the Linard farm.
[120]Transcript 319
121 When the theory of calculation of the plaintiff’s loss of chance is replaced by a practical view of the Linard farm and the extent to which it can be applied to a farming operation, I am left with the evidence of Dr Shepherd and Mr Phillips that it is very probable that the farm would not have generated a net profit.
22 General damages
122 I lastly turn to Linard’s claim for damages for inconvenience, discomfort and intrusion caused by the interference with his use of the Linard farm. Linard’s evidence essentially was that his enjoyment of being a farmer, enjoying the vista of his farm and the surrounding district and his use of the pool for entertainment constituted the inconvenience, discomfort and intrusion for which he claims damages.
123 The parties provided me with comparable assessments of damages which demonstrate that the assessment of damages under this head are mostly modest. Whilst those comparable assessments are of some assistance, that level of assistance falls away because of the different subject matter I am dealing with here than was the present in those cases.
124 The assessment undertaken in a case such as this is akin to the assessment of damages for pain and suffering in a personal injury case. The assessment undertaken by judges is intuitive and often does not admit of explicit reasoning. My assessment is that Linard would be entitled to a very modest sum, probably in the vicinity of $2,500.
23 An injunction
125 There are a number of reasons why I would refuse an injunction.
126 Firstly, Linard applies for an injunction to prevent the discharge of airborne litter onto the Linard farm. The evidence impresses me that preventing such a discharge is impossible. It may lead to further proceedings for contempt, and in any event, it occurs to me that the grant of an injunction would be disproportionate to the gravity of the nuisance. It may have the effect of shutting the tip down altogether.
127 Secondly, no effort was made to frame the injunction and its scope to pay regard to the impossibility of preventing any discharge. It is altogether too broad in its scope.
128 Thirdly, the evidence discloses that the nuisance has been substantially abated by each of the steps taken by Wellington and Zero. That makes damages the proper remedy, not the grant of an injunction.
129 Fourthly, there has been substantial delay on the part of Linard, who has known of the alleged nuisance since 2007. Since that time, Wellington has continued to operate the tip and engage in significant cost and expense in rehabilitating the landfill and building the cells.
24 Orders
130 For the reasons set out above, I order that the plaintiff’s proceeding be dismissed. I will now hear the parties on what other and consequential orders are sought.
Table of Annexures
Page
Annexure 1: First photograph of exhibit C – aerial photograph 36
Annexure 2: Third page of exhibit B – survey plan 37
Annexure 3: Second photograph of exhibit C – aerial photograph 38
Annexure 4: Photographs 3, 2 and 1 of exhibit TZ-2 (three photographs) 39
Annexure 5: Exhibit WSC-14 – aerial photograph 40
Annexure 6: Exhibit WSC-13 – aerial photograph 41
Annexure 7: Exhibit HH (seven photographs) 42-45
Annexure 8: Photographs 1, 2 and 3 of exhibit TZ-6 (three photographs) 46-47
Annexure 9: Exhibit WSC-3 and exhibit WSC-21 (three photographs) 48-49
Annexure 10: Exhibit WSC-20 (one photograph) 50
Annexure 11: Exhibit WSC-9 (two photographs) 51-52
0
3
0