Moore v Corowa Shire Council - [2009] NSWLEC 59

Land and Environment Court

of New South Wales

CITATION: Moore v Corowa Shire Council [2009] NSWLEC 59

PARTIES: APPLICANT
Mark Haydn Moore
RESPONDENT
Corowa Shire Council

FILE NUMBER(S): 40741 of 2007

CORAM: Sheahan J

KEY ISSUES: INJUNCTIONS AND DECLARATIONS :- offensive odour, polluted waters, alleged breaches of the Act and licence conditons, discretion to refuse relief in the form of "bare" declarations

LEGISLATION CITED: Protection of the Environment Operations Act 1997

CASES CITED: Environment Protection Authority v Cargill Australia Ltd [2004] NSWLEC 334
Environment Protection Authority v Incitec Limited [2003] NSWLEC 381
Environment Protection Authority v Shoalhaven Starches Pty Ltd [2003] NSWLEC 107
Environment Protection Authority v Shoalhaven Starches Pty Ltd [2006] NSWLEC 496
Environment Protection Authority v Shoalhaven Starches Pty Ltd [2006] NSWLEC 685
Liverpool City Council v Roads and Traffic Authority and Interlink Roads Pty Ltd (1991) 74 LGRA 265
Williams v Barrick Australia Limited [2003] NSWLEC 218, (2003) 128 LGERA 80

DATES OF HEARING: 4 November 2008 (site visit), 5 and 6 November 2008

DATE OF JUDGMENT:
30 April 2009

LEGAL REPRESENTATIVES: APPLICANT
Mr M Baird
SOLICITORS
Mr D Geddes (Sydney agent for Andrew Spilva Stewart & Co)
RESPONDENT
Mr M Astill of Blake Dawson

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

30 April 2009

40741 of 2007 Moore v Corowa Shire Council
JUDGMENT

Introduction

1 His Honour: Mr Moore asks the court, in a class 4 application brought on 3 August 2007, for a series of declarations and orders regarding:

Protection of the Environment Operations Act

POEO Act

2 Mr Moore relies on the standing granted by s253 of the POEO Act. He originally claimed that he had brought these proceedings not only on his own behalf, but also in the public interest, but the Council denies that, and in his oral evidence Mr Moore retreated from that claim (see T 5.11.08, p38, L38 to p39, L17). His real concern is that the land he owns adjacent to the STP (“the subject land”), through part of which the drain/channel runs, cannot now be developed profitably, because, the Council has recently imposed a 400m buffer zone around the STP site, within which radius it will not approve residential development (Exhibit M7). Naturally Mr Moore is opposed to the 400 metre buffer. He bought the subject land for a profit-making purpose, and believes he should be able to put houses on that land, if the STP satisfies statutory pollution standards (T 5.11.08, p36 LL5-10).

3 Nonetheless, the court accepts that Mr Moore…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2009] NSWLEC 59
Decision Date: 30 April 2009

CaseChat Overview and Summary

The applicant, Mark Haydn Moore, sought relief against the Corowa Shire Council for alleged breaches of the Protection of the Environment Operations Act 1997 in relation to the operation of its sewerage treatment plant and the discharge of treated effluent into a channel leading to the Murray River. The applicant sought declarations that the council was in breach of the Act, an order to prevent offensive odours and the discharge of polluted waters, and costs. The Land and Environment Court of New South Wales found that the council had previously operated the plant in breach of the Act, but that any such breaches were now in the past. The court also found that there was no evidence of any continuing or future breaches that would justify the granting of relief. The court relied on precedents that held that declaratory relief should not be granted in cases where the alleged breaches were past and could not be remedied, and where the relief sought would serve no useful purpose. The court dismissed the application and reserved costs.

Orders