Branezac v Director General, NSW Agriculture

The Application 1 The Applicant, Mr. Milorad Branezac, has applied for review of the decision dated 19 December 2002 by the Director General, NSW Agriculture ("the Director General") to prohibit the keeping of bees on the premises at 7 Shoalhaven Street, Ruse, New South Wales ("the premises") and direct that Mr. Branezac remove the apiary from the premises. The Director General's decision was purported to have been taken under section 18 of the Apiaries Act 1985 ("the Act"). 2 The history and facts of the matter are not generally in dispute. The dispute is centred on whether the Director General's decision was reasonable in the circumstances. The relevant factors are that Mr. Branezac's neighbour has a life-threatening allergy to bee stings, the extent to which the problems experienced by Mr. Branezac's neighbour are attributable to Mr. Branezac's bees, that Mr. Branezac's severely disabled son who appears to benefit from high quality honey on a daily basis and the impact on Mr. Branezac's son health if the Director General's decision is affirmed. 3 Mr. Branezac also asserts that there was a lack of impartiality in the decision making process and that there was "biased bureaucratic maltreatment rather than objective action of a public officer. I do not understand those allegations to be part of these proceedings. 4 The Director General's original decision was taken on 19 December 2002. That decision was served on Mr. Branezac on 23 December 2002. Mr. Branezac sought a review of that decision by letter dated 13 January 2003 and he provided argument in support of that application. The internal review was finalised on 6 February 2003 and the decision ("the internal review decision") was taken to affirm the Director General's original decision. Relevant Legislation 5 The Director General's power to restrict beekeeping on certain premises is governed by section 18 of the Act. Section 18 of the Act provides: " 18. Power of Director-General to restrict beekeeping on certain premises (1) If at any time the Director-General is satisfied on reasonable grounds that, in relation to particular premises on which an apiary is being maintained: (a) a provision of this Act is being persistently contravened or not complied with, (b) the keeping of bees or a number of beehives on those premises is a public nuisance or a danger to public health or public safety, or (c) for any other specified reason those premises are unsuitable for beekeeping, the Director-General may, by order: (d) prohibit: (i) the keeping of bees on those premises, or (ii) the keeping of more than a specified number of beehives on those premises, after such date as may be specified in the order (being a date not earlier than 14 days after the date of service of the order), and (e) direct that, not later than that date, the person who is maintaining the apiary or, if no person is maintaining the apiary, the person who established it: (i) remove the apiary, or (ii) remove the number of beehives kept on those premises in excess of the maximum number of beehives specified under paragraph (d), from those premises. (2) If at any time the Director-General is satisfied on reasonable grounds that an apiary is about to be or may be established on particular premises and that: (a) the keeping of bees on those premises would be a public nuisance or a danger to public health or public safety, or (b) for any other specified reason those premises would be unsuitable for beekeeping, the Director-General may, by order, prohibit the keeping of bees and the establishment of an apiary on those premises. (3) An order under subsection (1) or (2) is not effective unless it has been served on the occupier of the premises concerned and, where the occupier of those premises is not the person who maintains or established or, as the case may be, is about to or may establish an apiary on those premises, a copy of the order has been served on that person. (4) Subject to subsection (9), an order under subsection (1) does not take effect until the date on which the prohibition specified in the order is to take effect. (5) An order under subsection (1) or (2) shall, unless quashed under section 37, remain in force until it is revoked by the Director-General by a further order. (6) A person shall not continue to maintain or, as the case may be, shall not establish an apiary in contravention of an order in force under subsection (1) or (2) and, where an order under subsection (1) contains a direction referred to in paragraph (e) of that subsection, shall not fail to comply with that direction before the date specified in the order for compliance. Maximum penalty: 20 penalty units. (7) If the Director-General is satisfied that: (a) a person has failed to comply with a direction contained in an order under subsection (1) to remove an apiary from particular premises, or (b) a person has removed the apiary concerned from particular premises in purported compliance with such a direction to other premises in respect of which an order under subsection (1) or (2) is in force, the Director-General may direct an inspector to remove the apiary from those premises to premises selected by the inspector on which it is lawful to establish an apiary or, if such premises are not available, to destroy or otherwise dispose of the apiary in such manner as the inspector considers appropriate, and on any such direction being given to the inspector, it is the duty of the inspector to comply with the direction. (8) A direction under subsection (7) may be varied or revoked by the Director-General at any time before it is implemented." 6 Section 35 of the Act provides Mr. Branezac with a right to apply to this Tribunal for review of the Director General's decision. Insofar as is relevant to these proceedings section 35 of the Act provides: "35. Applications for review … (2) A person who is the occupier of, or otherwise has an interest in, premises in respect of which the Director-General has made an order under section 18 who is aggrieved by that order may apply to the Administrative Decisions Tribunal for a review of that order." 7 Section 63 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") provides for the approach to be taken by this Tribunal in determining an application for a review of a reviewable decision. Section 63 provides: " 63 Determination of review by Tribunal (1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. (3) In determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal." The Director General's case 8 The Director General's case comprises statements and oral evidence from Mr. Branezac's neighbours who are said to be affected by Mr. Branezac's bees, from Ms Emma Kelly, a Regulatory Officer with NSW Agriculture and Mr. Rob Bowman, a Senior Inspector with NSW Agriculture. 9 Ms. Elba Broadhead's house is diagonally behind Mr. Branezac's house. She and her family moved into the house about ten years ago. They can see Mr. Branezac's hives and the flight path of the bees from their back garden. Ms. Broadhead's evidence is that she has been allergic to bee stings since she was a child. She had three very seriously allergic reactions to bees when she was stung at about the ages of six, eight and eleven years of age. At the age of eleven, a bee stung her on the back of her hand. Immediately, her whole body, including her throat began to swell. Her mother quickly drove her to a doctor who's practice was about five minutes drive away. By the time she reached the doctor's practice, her whole body was swollen, her face was blue and she could hardly breathe. The doctor gave her an injection to treat the reaction. Ms. Broadhead stated that her mother told her that her reaction to the two previous stings had been the same. Since that time she has made efforts to avoid bees and has not been stung since she was eleven years old. 10 Ms. Broadhead stated that she raised the matter of her allergies with her doctor late last year and she was given a prescription for an epi-pen, which would allow her to give herself an adrenalin injection if she were ever stung by a bee. She now carries this pen with her wherever she goes. 11 Ms. Broadhead's house has a pool in the back garden, a water feature and a water feeder for their dog. Many bees are attracted to the water. During spring and summer, there are always lots of bees in the back garden. When the pool is cleaned, there a dead bees over the bottom of the pool. Bees also congregate around the water pooling at the bottom of the dog's feeder and have stung the dog on his lips. 12 Ms. Broadhead's evidence is that the bees were so numerous that for the ten years she has lived in her house, she had never been into the back garden in spring or summer. She has only swum in the pool twice in ten years. She stated that it has been a real joy for her to be able to use the back garden since the bees were removed late last year. 13 Each of Ms. Broadhead's two children and her husband has been stung many times. Both of her children have been quite shaken by the number of times that they have been stung and are now fairly hesitant to use the pool. 14 Dr Rick Nalder, general practitioner, prepared a report in relation to Ms. Broadhead. Dr Nalder's stated that he has been Ms. Broadhead's general practitioner since 13 August 1993. His report stated: "She saw me recently in relation to a history of a severe bee sting allergy occurring in her childhood and at the age of 10 she was treated as a matter of urgency with adrenaline because of breathing problems, swelling of the tongue and a blue colour of her skin which occurred shortly after a bee sting. She had to be rushed to a Doctor's surgery for immediate treatment. Prior to age 10 she reports being stung on 2 other occasions at a younger age although she can't remember the exact details and the allergy was almost as severe. She has not been stung by a bee since the age of 10. She has told me that one of her neighbours was keeping bees although they have been removed recently although the consequences of a bee sting occurring would mean that she would likely suffer a further life threatening immediate allergic reaction. That is an anaphylactic reaction to bee venom. Mrs Broadhead has been educated in the use of an Adrenalin Epipen which has cost her $80 and she carries it with her always and she has been referred to Dr Rod Lovett an allergist in practice at Royal Prince Alfred Hospital in Sydney for consideration of desensitisation to bee venom. None of Mrs Broadhead's children suffer more than local reactions to bee stings but all other members of the family except for Mrs Broadhead has been stung on multiple times by bees in their backyard. In summary, Mrs Broadhead suffers from severe allergy to bee venom and as such avoidance is her best form of treatment although she carries Adrenalin Epipen injection for treatment of life threatening allergy and will be seeing an allergist in the near future to consider desensitisation as treatment." 15 Ms. Trish Wren lives with her husband and sons in the house next door to Mr. Branezac's house. She has lived in that house since 1979. They have a pool in their back garden, which they use frequently. 16 The bees interfere with the family's enjoyment of the pool. They need to be very cautious about the bees whenever they swim. There are generally bees floating on the top of the pool and dead bees at the bottom of the pool. They have to remove the bees from the pool before they start swimming. On a few occasions, one of Ms. Wren's sons and his friends have been attacked by a large number of bees and had to leave the pool and take shelter inside the house. 17 Ms. Wren has been stung several times and each time her reaction to the bees' stings has been worse. On the last occasion, she was stung on the arm and her whole arm swelled. She is worried about what might happen if a bee stings her again. 18 Ms. Wren stated that there has been a very noticeable difference in the number of bees in the pool since Mr. Branezac's hives were removed and that it has been a pleasure to swim in the pool since then. 19 Ms. Emma Kelly has been a Regulatory Officer with NSW Agriculture since December 1997. She holds a Bachelor of Science Degree and a Graduate Diploma in Horticulture and has undertaken training and gained experience in handling beehives, bee diseases and bee investigations and regulatory action. 20 Ms. Kelly stated that part of her duties is to deal with nuisance bee complaints made by the public. On 4 December 2002 she visited and spoke with Ms. Broadhead about the problems that she had been experiencing with the bees and her allergy to the bees. During her visit Ms. Kelly observed that the flight path of the bees came from Mr. Branezac's hives towards Ms Broadhead's pool and water feature. 21 On 4 December 2002, Ms. Kelly spoke with Mr. Branezac and explained that his neighbour had a life-threatening allergy to bee stings and asked that he remove the hives as soon as possible. She advised Mr. Branezac that she would be applying to the Director General for a prohibition order in relation to his beehives. She prepared a report in relation to her visit with Ms. Broadhead and her conversation with Mr. Branezac. On 19 December 2002 the Director General made an order prohibiting Mr. Branezac from keeping any beehives at his property. Ms. Kelly stated that she served the order on Mr. Branezac on 23 December 2002. 22 On 8 January 2003, Ms. Kelly visited Mr. Branezac's house to confirm that the bees had been removed. She stated that Mr. Branezac told her that the bees were gone. She went to Ms. Broadhead's yard, looked over the fence and confirmed that the beehives had been removed. 23 Mr. Rob Bowman is a Senior Inspector with NSW Agriculture. He has held that position since 1998. From 1986 to 1998 he was an inspector with NSW Agriculture. Part of his duties as both an inspector and as a senior inspector is to conduct apiary inspections. Mr. Bowman holds a Diploma in Applied Science (Agriculture) from Riverina College of Advanced Education and also holds a TAFE Certificate in Beekeeping. He has kept bees since 1994. 24 Mr. Bowman said that Mr. Branezac has five triple-decker hives. Each triple-decker hive is likely to contain about 80,000 bees. In all, Mr. Branezac's hives are likely to contain 400,000 bees. 25 Mr. Bowman's evidence is that bees in an urban environment will forage within 500 metres and 1 km from their hive. At the start of each day, scout bees will head out randomly from the hive to find the food and water necessary for the hive's needs for that day. The scout bees will then return to the hive and communicate the best food and water sources to the other worker bees. The workers will follow the scout bee's directions to the food or water source for the remainder of the day, or until that source expires. So, if a pond or pool is identified as a water source early in the morning, bees will continue to visit that water source through out the day. 26 The amount of water that bees need depends on a number of factors. Bees need more water on hotter days and they require more water if the hives are exposed to the direct sun or if they are foraging on nectar with low moisture content. The amount of water required also depends on the strength of hives and the amount of immature brood bees in hives. Bees generally prefer a cool water source and so if water is left exposed on a hot day, they will seek out other water. Mr. Bowman estimated that each of Mr. Branezac's hives would need close to two litres of water on a hot day. 27 Mr. Bowman observed, however, that even if adequate water is put out for bees, they won't necessarily use the water source close to their hive. They will quite often forage for water away from hives rather than close by. Bees will seek out ponds, pools, dog bowls or even wet washing in seeking water. 28 Mr. Bowman's evidence is that while there may be feral colonies in the area, and other beekeepers in the area, there is a direct relationship between the problems experienced by Mr. Branezac's neighbours and the number of bees that are kept by Mr. Branezac. Mr. Bowman observed that Mr. Branezac's bees might not have troubled some of Mr. Branezac's neighbours if there is nothing in their gardens that is attractive to bees. If, for example, there were few flowering bushes, no ponds, pools or other water sources in their yard, the bees may not congregate in the gardens of the closest houses, but will instead go further afield. 29 Mr. Bowman stated that bees generally only attack when their hive is in peril. It is unusual for bees to attack while they are foraging, as a bee will die shortly after inflicting a sting. However, he observed that there are environmental stimulants that can trigger bee aggression. The release of adrenalins can cause bees to attack. Therefore, people that are scared of bees and who release adrenalins are also more likely to be the focus of bees. Artificial chemicals such as perfume, hairspray and sunburn cream also attract bees. Bees dislike the smells emitted by two stroke and diesel motors and they also dislike a lot of noise and will respond aggressively to these stimulants. Lawn mowers are therefore a particular problem. 30 Mr. Bowman also gave evidence about the properties of commercially produced honeys. He stated that particular honeys have specific medicinal properties due to their strong antibacterial action. Mr. Bowman's evidence is that these honeys are derived from two related plants: the Manuka bush (leptospermum scoparium) which only occurs in New Zealand and an Australian relative known as Jellybush (leptospermum polygalifolium) which has similar qualities. Mr. Bowman stated that this plant does not occur in the Sydney area. Mr. Branezac's case 31 Mr. Branezac appeared on his own behalf and sought to challenge much of the evidence presented on behalf of the Director General. He provided testimonials with respect to his knowledge of beekeeping and his participation in the industry. Mr. Branezac's neighbour, Mr. Hilton Myles appeared and gave evidence in support of Mr. Branezac's case and Mr. Maurice Chapman gave expert evidence on his behalf. 32 In essence, Mr. Branezac's case is that the situation is not as serious as has been asserted and that his particular circumstances should be taken into account so that he should be able to retain some hives at his property. The thrust of his application is set out in a letter that he sent to the Director General in support of his application for a review of the original decision. In that letter, Mr. Branezac wrote: "I am submitting the appeal on your decision to remove my beehives from the premises at 7 Shoalhaven St Ruse 2560 NSW on the following grounds: 1) The neighbour with the alleged life-threatening allergy to beestings had been living comfortably with my bees in this neighbourhood for 10 years. As you see he is alive and well. Your officer Ms Kelly failed to verify this crucial fact. 2) My severely disabled son (now age 22 yrs) requires high quality honey on a daily basis. That is the reason that I have kept beehives on the premises. I am a registered beekeeper and a member of the Agricultural Society of NSW. 3) Ms Kelly brought your letter personally instead of sending it by post as it is usual. Such urgency hardly could be justified considering the facts from paragraph one. She refused to show me any proof of alleged neighbours allergy. Instead Ms Kelly was provoking me to go to the court to find out the evidence of neighbour's allergy. 4) The minimum which someone should expect from a public officer is the reasonable level of impartiality. The actions of Ms Kelly look as biased bureaucratic maltreatment rather than objective action of a public officer. Her behaviour is worthy of investigation, which hopefully will be conducted by you in due time. According to all facts mentioned above, it is clear that the danger from my beehives to the neighbour's health is the same as it is from bush bees in everyday life. Therefore it is next to theoretical. Accordingly I am asking you for permission to keep at least 3 beehives in order to be able to give my disabled son top class honey which he really needed." 33 Mr. Branezac's evidence is that he has been keeping bees since he was five years old. He has been a registered beekeeper since he started keeping bees at this property. It is not in dispute that he has acquired considerable knowledge about bees and built up considerable expertise in relation to bee keeping. Nor is there any suggestion that Mr. Branezac is other than responsible and diligent in his bee keeping activities. 34 Mr. Branezac referred to a number of published articles relating to bee behaviour and the keeping of bees in suburbia. His evidence is that while he has no formal qualifications relating to the keeping of bees, his bee keeping is carried out in accordance with widely accepted methods. 35 Mr. Branezac agreed generally with Mr. Bowman's comments on bee behaviour, but disagreed with some of Mr. Bowman's conclusions. He argued that his neighbours are at greater risk from bush bees than from his bees as children can interfere with their hives. He said that he placed his hives at a height above that of his neighbours' houses and that bees do not fly downwards. 36 It is not in dispute that Mr. Branezac's son is severely disabled. Both Mr. Branezac and his wife, Ms Navenka Branezac, gave evidence as to the benefit that their son derives from the fresh honey, the pollen and the queen jelly that they collect from their hives. This evidence was not challenged. Mr. Branezac said that a naturopath had suggested the use of honey and pollen in this way. He conceded that he had never had his honey chemically analysed or had its properties compared with those of commercially produced honey. 37 Since March of this year Mr. Branezac has met his son's needs by using reserves stored from previous seasons. Mr. Branezac conceded that he could obtain additional supplies from another producer. However, he would incur a considerable expense in doing so and this would place a significant financial burden on their family. 38 Mr. Chapman gave evidence that he has kept bees for around 60 years and has held various positions in the administration of amateur beekeeping associations. He said that these clubs attempt to get their members to abide by the Act. They encourage members to place their bees up high so that houses are not in their flight paths. He believes that if amateur beekeepers are not allowed to carry out their practices, and to do it the right way, they might find ways of doing so contrary to the Act. 39 Mr. Chapman gave evidence that said that Mr. Branezac is active in the amateur beekeeping community and is registered as a beekeeper. He requeens his colonies so that the likelihood of swarms is reduced. However, Mr. Chapman said that there are quite a few feral hives around. 40 Mr. Chapman conceded that some people are terrified of bees. He also conceded that bees would go to swimming pools, despite a beekeeper's best efforts. He agreed that many people would be prepared to house Mr. Branezac's hives. These would include orchardists and high schools that teach agriculture courses. However, he said that gardens are better than orchards because of the insecticides used in orchards. 41 Mr. Chapman gave evidence that home grown honey is better than commercially sold honey. He said that he is aware of research relating to the medicinal qualities of some honeys. He personally sells honey at craft markets and shows and said that it is possible to purchase it from amateur beekeepers. 42 Mr. Myles lives opposite Mr. Branezac. His evidence is that he has kept bees for between eight and ten years and has a strong knowledge of bee behaviour. He has a pool in his backyard and he gets bees in the pool but those bees are not aggressive. He said that a bee would only sting in self-defence. People with no knowledge of bee behaviour get frightened because they know bees sting. He said that when bees have stung him it was always his own fault. He has never been stung whilst in his back yard. He conceded that bees would sting if they were brushed off. However, if bees are left alone they will not attack. 43 Mr. Branezac conceded that he has too many bees and agrees that the number of hives should be reduced. He said that the numbers have increased due to his involvement with the Macarthur Beekeeper's Association as a swarm collector. 44 With respect to the evidence given by his neighbours, Mr. Branezac said that a lot of the concern is due to their unfamiliarity with bees and their behaviour. He said that bees do not limit the use of back yards but that fear of bees is due to inexperience. A code of conduct for bee keeping exists and he complies with it. 45 He said that his son benefits from the honey and also enjoys the bees. Findings of fact 46 Certain matters relating to the number and location of hives that Mr. Branezac has kept are not disputed. Mr. Branezac is responsible and diligent in his bee keeping activities. There is ample evidence that he attempts to abide by good bee keeping practices that minimise the risk that bees will be present outside his yard. There is also evidence of the medicinal qualities of honey and the benefits that have been available to Mr. Branezac's son from his beekeeping activities. 47 In contrast, there is overwhelming evidence that Mr. Branezac's bees have adversely affected Mr. Branezac's neighbours. Ms. Broadhead suffers from severe allergy to bee venom. She carries an epi-pen with her, which would allow her to give herself an adrenalin injection if she were ever stung by a bee. During spring and summer, bees congregate in her back garden. For the ten years she has lived in her house, she has been unable to use the back garden in spring or summer. Members of her family have been stung many times and they too are hesitant to use the pool. 48 Ms. Wren is also allergic to bee venom. She has been stung several times and is worried about what might happen if a bee stings her again. The bees also interfere with Ms. Wren's family's enjoyment of their pool. They need to be very cautious about the bees whenever they swim. On occasions, visitors have been attacked by bees and have had to leave the pool and take shelter inside the house. 49 In my view it is beyond disputes that the bees to which each of Mr. Branezac's neighbours referred came from Mr. Branezac's hives. This is apparent from their evidence and from Ms. Kelly's evidence. Each of Mr. Branezac's neighbours indicated that the number of bees on their properties was significantly reduced following the removal of most of the hives from Mr. Branezac's property. 50 On the basis of this evidence I find as a fact that the presence of Mr. Branezac's bees has had a significant, detrimental affect on the lifestyles of his neighbours. I also find as a fact that there is an increased risk of Mr. Branezac's neighbours and visitors to their properties being stung if beehives are kept on Mr. Branezac's property. As a consequence of that risk, Mr. Branezac's neighbours are unable to enjoy the full use of their properties. No matter how well managed the hives are, the evidence is clear that bees will search for water and plants if there is insufficient available in the immediate vicinity. This pattern of behaviour becomes even more pronounced in hot weather and in periods of drought. 51 On the basis of the evidence I also find as a fact that Mr. Branezac's son has benefited from Mr. Branezac's bees. While there is no scientific evidence presented in relation to the medicinal qualities of Mr. Branezac's honey and pollen products, I accept that Mr. Branezac and Ms. Branezac honestly believe that their son's health is improved when he has access to these products. I also accept that their son has gained other benefits from being involved in the beekeeping activities. 52 Clearly there is a conflict between the respective interests. The detrimental affect on the lifestyles of Mr. Branezac's neighbours must be weighed against the benefits that Mr. Branezac's son achieves from the honey and pollen products and the beekeeping activities. Reasons and decision 53 As indicated above, the Director General's power to restrict beekeeping on certain premises is governed by section 18 of the Act. Section 18(1)(b) of the Act provides that the Director-General may prohibit the keeping of bees on particular premises if at any time the Director-General is satisfied on reasonable grounds that the keeping of bees or a number of beehives on those premises is a public nuisance or a danger to public health or public safety. 54 The initial question for the Tribunal is whether the keeping of bees or a number of beehives on Mr. Branezac's premises constitutes a public nuisance or a danger to public health or public safety. I will first consider the issue of public nuisance. 55 I had cause to consider this issue in detail in my recent decision in the matter of Bauskis v Director General, NSW Agriculture [2003] NSWADT 228. In that matter I considered various authorities to which Ms. Johnson has referred. These included Wallace v Powell & Ors [2000] NSWSC 406; The Council of the Shire of Baulkham Hills v Domachuk (1988) 66 LGRA 110; Attorney-General v PYA Quarries Ltd [1957] 2 QB 169; Stormer and Another v Ingram [1979] 21 SASR 93; and Parker v Reynolds (reported in The Times 17 December 1906). It serves no purpose to repeat the references here. 56 In Bauskis I stated: "47 In my view, the inconvenience to Mr. Bauskis' neighbours resulting from the presence of Mr. Bauskis' bees is comparable to that caused by the flies referred to in The Council of the Shire of Baulkham Hills v Domachuk or the bees referred to in Parker v. Reynolds. The presence of bees on Mr. Bauskis' property has increased the risk that bees will sting Mr. Bauskis' neighbours and visitors to their properties. That presence has also more generally interfered with the ability of those neighbours to fully enjoy the use of their properties. I am satisfied that the presence of bees on Mr. Bauskis' property has materially affected the ordinary physical comfort of each of the neighbours' households and as such has constituted a public nuisance." 57 In my view, the same can be said in relation to Mr. Branezac's situation. I am satisfied that the presence of bees on Mr. Branezac's property has materially affected the ordinary physical comfort of each of the neighbours' households and as such has constituted a public nuisance. 58 In some circumstances, a public nuisance may be permissible if there is sufficient public benefit flowing from the activity that is causing the nuisance. In York Bros (Trading) Pty Ltd v Commissioner of Main Roads [1983] 1 NSWLR 391 Powell J concluded that the question of "public benefit" is but one matter to be weighed in the scale when determining whether or not the consequence of the activity in question is substantial and material; if it is held that the consequence is substantial and material, it matters not that some public benefit may flow from the activity. If the consequence, though technically a nuisance, does not significantly interfere with the public use of a facility, the fact that public benefits flow from the activity in question would lead a court not to intervene. His Honour further stated at 397: "A nuisance may be justified by statute if that nuisance is 'the inevitable consequence' of the performance of statutory duties or the exercise of statutory powers or authorities." 59 There is no suggestion in this matter that the nuisance is justified by statute. Nor is there any suggestion that there is a public benefit associated with Mr. Branezac's beekeeping. The argument is that there is a private benefit to Mr. Branezac's son. I am nevertheless satisfied that this benefit is a factor which must be taken into account in determining whether the Director General made the correct and preferable decision in prohibiting the keeping of bees on Mr. Branezac's premises. I have taken this into account in reaching my decision. 60 In the circumstances it is my view that the public nuisance caused by the keeping of bees on Mr. Branezac's premises is substantial and material. The fact that Mr. Branezac and his family have a private interest in being able to keep the bees is not sufficient reason to prevent the Director General taking action to prevent the public nuisance. For this reason, the Director General's action was justified. Nevertheless, I am conscious that the prohibition on the keeping of bees on Mr. Branezac's premises will cause Mr. Branezac and his family considerable inconvenience, distress and additional financial burden. This is regrettable. However, there are alternative sources for the products that they have obtained from Mr. Branezac's bees. It is also likely that the bees can be housed at another site that would still allow Mr. Branezac to personally obtain the products that he and Ms. Branezac use for their son. 61 Section 18 of the Act also authorises the Director General to prohibit the keeping of bees on Mr. Branezac's premises if the keeping of bees on those premises would be a danger to public health or public safety. 62 Ms. Johnson has submitted that it is sufficient that one person's safety is endangered to allow the Director General to take action on public health or public safety grounds. I agree with this submission. In Lee v Evans (1964) 112 CLR 276 at 283, Barwick CJ observed that the expression "the public" is one which takes its particular significance from the context in which it is used, and is not an expression of fixed and universal meaning. See also R v S (1991) 22 NSWLR 548. In order to avoid further risk to public health or public safety, the appropriate action is to cause the bees to be removed. This is the consequence of the Director General's order. 63 It is clear from the evidence that Mr. Branezac's neighbours are at risk if he is allowed to keep any bees on his property. This risk is very real and not fanciful. The risk would increase with an increase in the number of bees kept. It is probably that the bees would continue to have an impact on Mr. Branezac's neighbours even if there was a reduction in the number of hives. 64 It follows, in my view, that the Director General made the correct and preferable decision in making the prohibition order. The fact that the Mr. Branezac will be deprived of the opportunity to keep bees on his property and the benefits that flow to his family from his bee keeping and that that Mr. Branezac and his family will be disadvantaged in other ways cannot change the fact that Mr. Branezac's property is not suitable for bee keeping activities while his neighbours continue to be adversely affected by the presence of the bees. Orders 1. The decision by the Director General is affirmed.