Moore v Corowa Shire Council

Link copied
Case Copied 41 min read

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:


      (a) the operation by the Council of its sewerage treatment plant (“STP”) in Mulwala,
      (b) the use by the Council of an open drain/channel across his land for disposal of material from the plant, destined for discharge into the Murray River some 2.3km from the STP, and
      (c) claimed breaches by the Council of the Protection of the Environment Operations Act 1997 (“ POEO Act ”) in respect of pollution of waters and emission of odours in/from the plant and the channel.

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…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Moore v Corowa Shire Council and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2009] NSWLEC 59
Decision Date

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

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.