Sahay v Logan City Council

[2011] QPEC 69

[2011] QPEC 69

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 2837 of 2010

RUTH SAHAY	Appellant
and
LOGAN CITY COUNCIL	Respondent

BRISBANE

..DATE 06/05/2011

ORDER

CATCHWORDS
Appeal against enforcement notice based on complaints about odour - appellant engaged an odour expert to report (pursuant to an agreement reached in mediation) - appellant required to inform expert of operating hours and level and nature of its business as at the period when complaints arose

HIS HONOUR:  The court makes an order in terms of the initialled draft.  It is the respondent Council's proffered draft rather than the appellant's.

The point of difference is whether an odour emission expert to be engaged by the appellant to report by the 17th of June ought to be given instructions as to the operating times of the appellant's business of repackaging herbs, spices, ginger and garlic in Woodridge and "detailing that the level and nature of the business' operation is similar to that which occurred during the period from 1 June 2010 to 31 July 2010."

Mr Trost for the appellant submits that that is unnecessary.  Part of his submission was that the odour expert would know how to do his job and that the Council, if dissatisfied, could appoint their own expert, presumably at their cost, to present a contending view.

The Council's concern, at least in part, is to avoid the risk of embarrassment should the report indicate there is nothing untoward so far as the expert's observations at some future date are concerned, with the implication that complaints that were made around June and July last year may have been ill founded.  As a matter of simple logic, it is possible that the business may not be operated in the same way in the period from now to June 17th 201l.

The proceeding is an appeal against an enforcement notice and, in those circumstances, I think it is of value to have the odour expert reporting in a way that provides some indication of what the situation was at the time when the complaints were made.

As I understand it, the idea of the appellant engaging the expert, which arises from a mediation conducted last Wednesday, is to see whether matters cannot be resolved on the basis of what that expert reports.  In other words, although engaged and paid by the appellant, that expert is seen as likely to be the sole expert in the matter, other things being equal.

Order as per initialled draft.

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