Wall, Director-General of the Environmental Protection Agency v Hamcor Pty Ltd
[2009] QPEC 125
•23/10/2009
[2009] QPEC 125
PLANNING AND EVIRONMENT COURT
JUDGE ROBIN QC
No 3154 of 2006
| TERRY WALL, DIRECTOR-GENERAL OF THE ENVIRONMENTAL PROTECTION AGENCY | Applicant |
| and | |
| HAMCOR PTY LTD and WILLIAM MARTON HAYWARD and DONALD CHARLES HAYWARD and ANNA MARIE HAYWARD and TERRENCE ARTHUR ARMSTRONG | First Respondent Second Respondent Third Respondent Fourth Respondent Fifth Respondent |
BRISBANE
..DATE 23/10/2009
ORDER
CATCHWORDS
Application to strengthen current enforcement orders to include permitting discharge of stormwaters that might be polluted - contest between experts as to risk of environmental harm and appropriate location for measuring water quality - arrangements made to facilitate adjourned hearing
HIS HONOUR: The Court has made, with the consent of the
parties, an order in terms of the initialled draft which
provides as follows:
"It is ordered that:
Failure to provide the final investigation report:
1. If the respondents have not provided the investigation
report as required by paragraph 2 of the order of his
Honour Judge Robin QC dated 6 August 2009:
(a) the applicant and its agents may enter the
subject site and perform any and all works
reasonably required to complete the investigation
report (including the remediation action plan); and
(b) the State of Queensland may, acting through the
applicant or otherwise, recover any costs incurred
in carrying out the works to complete the
investigation report (including the remediation
action plan) from the respondents, either jointly
and severally, as a debt owing to the State of
Queensland.
2. If the applicant intends to enter the subject land in
accordance with paragraph 1(a) of this order, the
applicant must first give to the respondents written
notice of its intention to enter the subject land at
least five business days prior to entering the subject
land.
Remediation works.
3. The respondents must carry out the remediation works
as specified in the investigation report's approved
remediation action plan as reasonably quickly as possible
and with all due care and attention.
Entry on to subject land by the applicant.
4. The applicant and its agents may enter the subject
land at any time with the consent of the respondents or
its agents, or otherwise by the giving of 24 hours' clear
notice of its intention to enter the subject land.
5. Entry by the applicant in accordance with paragraph 4
of this order may only be for the purpose of monitoring
or otherwise ensuring compliance with:
(a) the order of his Honour Judge Rackemann dated
10 October 2007 (as varied);
(b) the order of his Honour Judge Robin QC dated
6 August 2009; and
(c) this order.
6. To remove doubt, nothing in paragraph 5 prevents the
applicant from entering the subject land in accordance
with any statutory provisions which allow the applicant
to enter the subject land.
General.
7. Service of material or notices required by this order
shall be effected if that material or notice is served
on:
(a) for the applicant, the Crown solicitor; and
(b) for any of the respondents, the third
respondent.
8. Otherwise, the application to be adjourned to 13 and
14 January 2010.
9. The parties shall have liberty to apply with the
giving of two days' notice in writing.
Statement in accordance with r665 of the UCPR.
If the respondents or their agents do not comply with the
above orders within the time specified, they will be liable to
Court proceedings to compel them to comply and punishment for
contempt."
This follows a lengthy hearing yesterday. The Court is
grateful to the parties for resolving matters to the extent
which has happened. There still remains one contentious
aspect which goes off for hearing early next year. I am yet
to confirm the availability of those dates for the purpose.
All that is known at the moment is that mentions have been
listed indicating that a Judge will be available for at least
part of those days. The Court had offered earlier dates which the parties did not take up - the applicant because of concerns that a response to "new" evidence could not be ready, the respondents because of unavailability of counsel.
The purpose of the current application is to strengthen an
order which I made in August this year effectively imposing
obligations on the respondents not to permit discharge from
their site at Narangba of storm waters that might be
polluted. A serious fire occurred on the site at the premises
of what is called the Binary Chemical Plant on 28th of August
2005. Concerns were developed by the applicant that
there were on the site materials which could cause serious
environmental harm should they be washed off into the drainage
system by storm waters or released from the site on any basis.
There are two substantial dams on the site which are
inadequate to cope with the consequences of high rainfall
events.
An application to restrain things which might cause
environmental damage was filed on the 25th of January 2006.
Her Honour Judge Kingham made an order on the 31st of January
2007 which has been amended on various occasions to extend
times.
The efforts of the applicant and the respondents are directed
to investigating the state of the site to clearly identify
concerns in relation to the external environment, both
terrestrial and watery. Once that has been achieved there
will be remediation of the site so that it can be used for
some appropriate purpose. It is accepted that both tasks,
perhaps the investigation in particular, are complex.
Thousands of pages of reports have eventuated.
It appears that an independent third party reviewer is now
content with volumes 1 to 6 but has some difficulty with the
last volume, volume 7, which the Court understands is a
summary. It is expected that within some short time what were
described as textual difficulties about volume 7 will be
attended to.
The effect of extensions granted is that as things stand it is
anticipated that what is called the investigation report,
including the remediation action plan, will be ready by the
9th of November 2009, but this is subject to the possibility
of the applicant granting an indulgence.
With the approach of a (hopefully) wet season, the applicant
is concerned that the restraint in respect of contaminated storm water may be inadequate. As indicated, it is presently in terms that the respondents or their agents must not wilfully or negligently release or remove contaminated storm water, certain conditions being attached. What is now sought by the applicant, and this is the matter of contention, is that the restraint provide that the respondents or their agents must not wilfully or negligently release, remove or otherwise allow to be released or removed contaminated water.
The Court has been told of the difficulties the respondents
have had when the dams on the site are overflowing. It has
been necessary to remove water that might be contaminated by
truck. For a fee, Government instrumentalities have taken some water into storage in very large dams on adjoining government owned property. There is a wastewater disposal facility negotiated with the local authority, which is not only capped in relation to quantities but also in relation to quality of water. The Court is hold that the quality testing requires a considerable period of time of a week or so, which would create obvious difficulties for the respondents should they face a high rainfall event or a series of them.
Whether it is appropriate for the Court to enlarge the restraint in this way is the subject of contention between scientific people. It appears to be the case that no actual damage to the environment or any organism in the environment has been established to date. The concern is with potential damage. As I understand the differences between the scientific protagonists, Dr Mortimer on behalf of the applicant and Dr MacIntosh for the respondent, it is going to be necessary for the Court to resolve whether measurements of water quality for purposes of relevant guidelines are taken at the point of discharge at the boundary of the site or at some remoter point where there has been mixing with other water.
It had been hoped that that issue could have been determined
yesterday and today. There was slippage in respect of the
timetable set by the Court's orders for which both parties
must bear some responsibility. It was the applicant seeking
an adjournment at the last minute because of late receipt of
Dr MacIntosh's and perhaps some other material. Mr Laidely
fairly conceded part of the explanation for its coming so late
was that the applicant had been late with some steps.
In the end, no evidence was taken yesterday, although I
expressed an interest in having some indication as to what the
difficulties about volume 7 precisely were and, more
importantly, evidence from Dr Mortimer as to the difficulties
that he had in responding very quickly, as would have been
necessary, to Dr MacIntosh's contribution.
I am making these observations because Mr Hunter SC, for the
respondents, has indicated that his client at least might be
seeking some costs. The agreed draft order appears to be
silent about costs.
MR LAIDELY: Your Honour, if I might indicate, it's made on
the consent on the basis of no order as to costs.
MR HUNTER: That's so.
HIS HONOUR: Thank you. I was about to observe I did not feel
in the position to assess the merits of any application for
costs against the background of the "no costs" regime
that prevails in this Court. My attitude had been to refuse the adjournment sought by Mr Laidely in communications a day or so before hearing and from my point of view he was forced to go on, although on the basis expressed by me, that if
Dr Mortimer, for example, indicated that he needed more time
to respond to identified parts of the respondents' late
material, the hearing be adjourned incomplete so that that
could occur. The two days allotted may well have been
insufficient, in any event, to complete it.
As it happens, I had the advantage of presiding at a lengthy
criminal trial, Landfix Pty Ltd, in which similar issues about
potential damage to organisms and the environment from a
discharge attributable to heavy rainfall events loomed very
large. The proper application of the relevant guidelines,
which it seems to be common ground are the ANZECC guidelines,
is a matter productive of great argument and likely to produce
voluminous evidence based on modelling of all manner of events
that can be envisaged. The two days allotted may well have
been sufficient, if Landfix is any guide.
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