Environment Protection Authority v Shoalhaven Starches Pty Ltd

Allied Interstate (Qld) Pty Limited v Barnes (1968) 118 CLR 581; Azzopardi v The Queen (2001) 205 CLR 50; Cala Homes (South) Limited and Others v Alfred McAlpine Homes East Limited [1995] FSR 818; Doney v The Queen (1990) 171 CLR 207; Dyers v The Queen (2002) 210 CLR 285; Environment Protection Authority v All Chrome Shop Pty Ltd (1996) 89 A Crim R 474; Fabre v Arenales and Another (1992) 27 NSWLR 437; Henderson v Gosford Meats Pty Ltd (1986) 58 LGRA 152; Jones v Dunkel and Another (1959) 101 CLR 298; CASES CITED: Mule v R (2005) 221 ALR 85; Plomp v The Queen (1963) 110 CLR 234; R v Dat Quoc Ho (2002) 130 A Crim R 545; R v Dover [2001] NSWCCA 412; R v Duncan (1981) 73 Cr App Rep 359; R v OGD (1997) 45 NSWLR 744; Regina v Ahmad [2002] NSWCCA 265; Regina v LTP [2004] NSWCCA 109; RPS v The Queen (2000) 199 CLR 620; Shepherd v The Queen (1990) 170 CLR 573; Weissensteiner v The Queen (1993) 178 CLR 217

DATES OF HEARING: 15/05/2006, 16/05/2006, 17/05/2006, 18/05/2006, 22/05/2006, 23/05/2006, 24/05/2006, 25/05/2006, 29/05/2006, 30/05/2006, 31/05/2006, 01/06/2006, 05/06/2006, 06/06/2006

PROSECUTOR Mr S Rushton SC SOLICITORS Department of Environment & Conservation LEGAL REPRESENTATIVES: DEFENDANT Mr I Lloyd QC SOLICITORS Kirkby & Associates

TABLE OF CONTENTS Paragraphs A. Introduction 1 - 13 B. Overview of evidence 14 - 21 C. The locality and the defendant's premises generally 22 - 27 D. Odours smelt at defendant's premises before 14-15 April 2004 28 - 33 E. Mr Jamieson's evidence - odours 34 - 42 F. Mr Newman's evidence - odours 43 - 49 G. Other evidence about odours on 14 and 15 April 2004 50 - 54 H. Expert evidence - air Mr Stephenson 55 - 75 Mr Todoroski 76 - 77 I. Expert evidence - wastewater Mr Bliss 78 - 83 Professor Greenfield 84 - 86 J. Findings Occupier of premises 87 - 88 Mr Stephenson's evidence generally 89 - 101 Evidence of Mr Jamieson and Mr Newman generally 102 - 110 The pH tests - Mr Jamieson and Mr Newman 111 Capacity of activities on environmental farm to cause odours 112 - 116 Capacity of other premises to cause odours 117 - 119 Events leading up to 14 and 15 April 2004 120 Odours Mr Jamieson and Mr Newman smelt at ponds 121 - 125 Source of odours at ponds 126 - 153 Elimination of other potential odour sources 154 - 178 Offensive odours 179 - 180 Defendant's key submissions 181 K. Conclusions 182

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

ENVIRONMENT PROTECTION AUTHORITY Prosecutor

SHOALHAVEN STARCHES PTY LTD Defendant

1 The defendant is charged with having committed an offence against s 129(1) of the Protection of the Environment Operations Act 1997 (the "POEO Act"). At all material times that section provided that: (1) The occupier of any premises at which scheduled activities are carried on under the authority conferred by a licence must not cause or permit the emission of any offensive odour from the premises to which the licence applies.

(2) It is a defence in proceedings against a person for an offence against this section if the person establishes that:

(a) the emission is identified in the relevant environment protection licence as a potentially offensive odour and the odour was emitted in accordance with the conditions of the licence directed at minimising the odour, or (b) the only persons affected by the odour were persons engaged in the management or operation of the premises. (3) A person who contravenes this section is guilty of an offence.

2 The particulars to the charge are that the defendant, between 14 and 15 April 2004, caused the emission of offensive odours from its premises at Bolong Road, Bomaderry, being premises at which scheduled activities were carried on (agricultural produce industries, chemical storage facilities, and/or chemical industries or works - other) under the authority conferred by environment protection licence no. 883.

3 "Offensive odour" is defined in the Dictionary to the POEO Act as follows: offensive odour means an odour: (a) that, by reason of its strength, nature, duration, character or quality, or the time at which it is emitted, or any other circumstances: (i) is harmful to (or is likely to be harmful to) a person who is outside the premises from which it is emitted, or (ii) interferes unreasonably with (or is likely to interfere unreasonably with) the comfort or repose of a person who is outside the premises from which it is emitted, or (b) that is of a strength, nature, duration, character or quality prescribed by the regulations or that is emitted at a time, or in other circumstances, prescribed by the regulations.

4 The particulars to the charge relied on subsections (a)(i) and (ii) of this definition.

5 The Dictionary to the POEO Act also contains the following definitions: licence means an environment protection licence.

occupier of premises means the person who has the management or control of the premises.

(a) a building or structure, or (b) land or a place (whether enclosed or built on or not), or (c) a mobile plant, vehicle, vessel or aircraft.

scheduled activity means an activity listed in Schedule 1.

6 The activities listed in Sch 1 to the POEO Act include "agricultural produce industries", "chemical industries or works" and "chemical storage facilities", being the classes of activity authorised to be carried out on the defendant's premises by its licence.

7 The prosecutor said that, if necessary, it relied on the presumption in s 257 of the POEO Act. That provision is as follows: (1) In any proceedings under this Act, the occupier of premises at or from which any pollution occurs is taken to have caused the pollution, unless it is established that:

(a) the pollution was caused by another person, and (b) the other person was not associated with the occupier at the time the pollution occurred, and (c) the occupier took all reasonable steps to prevent the pollution. A person is associated with the occupier for the purposes of paragraph (b) (but without limiting any other circumstances of association) if the person is an employee, agent, licensee, contractor or sub-contractor of the occupier. (2) Subsection (1) does not prevent proceedings being taken under this Act against the person who actually caused the pollution.

8 The defendant conceded that it was the occupier of scheduled premises at which scheduled activities were carried on under authority of a licence. That concession presumably had regard to the operation of ss 258 and 261 of the POEO Act, and the certificate under the latter section tendered by the prosecutor. Section 258 provides that: (1) In any proceedings under this Act, no proof is required (until evidence is given to the contrary) of the fact that a person is, or at any relevant time was, the occupier of any premises to which the proceedings relate.

(2) In any proceedings under this Act, the holder of a licence under this Act in respect of any premises at a particular time or period is taken to be the occupier of the premises at that time or during that period.

9 Section 261, insofar as relevant, provides that: (1) A document signed by the Director-General of the EPA or a designated officer and certifying any one or more of the matters specified in subsection (2) is admissible in any proceedings under this Act and is prima facie evidence of the matters so certified.

10 The prosecutor must establish beyond reasonable doubt that, within the period charged: (i) the defendant was the "occupier" of "premises", (ii) at the premises, scheduled activities were carried on under the authority conferred by a licence, and (iii) the defendant caused or permitted the emission of "offensive odour" from the premises.

11 The defendant denied the third element - that it had caused or permitted the emission of offensive odour from its premises. I may address one issue with respect to the third element of the offence immediately. The defendant submitted that the prosecutor was in error if it considered that it was sufficient to establish merely that an offensive odour had been smelt on and outside the defendant's premises. Rather, the prosecutor had to establish beyond reasonable doubt that the defendant's premises were the source of offensive odour smelt outside those premises. I did not understand the prosecutor to have suggested to the contrary. From the particulars of the offence charged, its evidence and submissions, I understood the prosecutor to accept that it had to establish to the criminal standard of proof that the defendant's premises were the source of offensive odour smelt outside those premises. The prosecutor did submit that it did not have to establish the reason for the emission of the offensive odours. I agree. The reason for the emission of offensive odours is not an element of the offence. Evidence relating to the reasons for the emission of offensive odours, nevertheless, is relevant. Such evidence may affect (for example) the assessment of the probability of the activities on the premises having caused offensive odour.

12 The natural and ordinary meaning of the phrase "cause or permit the emission of any offensive odour from the premises" requires that the premises generate the odour. A person does not cause or permit the emission of offensive odour from premises (s 129), and pollution does not occur at or from premises (s 257), merely because an offensive odour passes across premises. The activities carried out on the premises must cause the offensive odour. The offensive odour must also be emitted from (that is, travel outside the boundaries of) the premises ( Henderson v Gosford Meats Pty Ltd (1986) 58 LGRA 152 at 155). The prosecutor, however, need not establish the reason why the activities emitted an offensive odour.

13 Accordingly, given the offence charged and particularised, the third element of the offence required that the prosecutor establish beyond reasonable doubt that in the period charged: - (i) the effluent storage ponds on the defendant's premises (more particularly, that part of its premises known as the environmental farm) generated odour, (ii) this odour was emitted outside the premises, and (iii) this odour was "offensive odour" as defined when perceived outside the premises.

15 The prosecutor called evidence from Mr Jamieson and Mr Newman, primarily about: - (i) the odours they smelt on the defendant's environmental farm prior to 15 April 2004, (ii) the investigations they carried out, and observations they made, on 15 April 2004, (iii) as part of those investigations, the odours they smelt on the defendant's environmental farm on 15 April 2004, and (iv) as part of those investigations, the odours they smelt outside the defendant's environmental farm on 15 April 2004. Mr Jamieson also gave evidence about odours he had smelt and investigated in the locality (outside the defendant's premises) prior to 15 April 2004.

16 The prosecutor called evidence from thirteen people who lived or worked in the areas of Bomaderry, Nowra and Terara about odours they smelt on 14 and 15 April 2004. One resident swore an affidavit that the defendant agreed could be read into evidence. The prosecutor also called evidence from Mr Patterson, another of its authorised officers who was familiar with the defendant's premises and the ponds, and who was in Nowra at the Council Chambers on the morning of 15 April 2004. The defendant called evidence from Mr Lawer, a truck driver who delivered sulphuric acid to the environmental farm on a regular basis, including early in the morning of 15 April 2004.

17 The defendant called evidence from Mr Thompson, the manager of its environmental farm, primarily about: - (i) the activities carried out by the defendant at its factory and on its environmental farm, including the operation and management of the effluent from the factory stored in the ponds, (ii) operations in the period leading up to 14 April 2004, (iii) observations made by Mr Thompson on 14 April 2004 (when he was present at the environmental farm, and received a complaint about odour and made certain investigations outside the premises), and on 15 April 2004 (when he received a complaint about odour when at home and made certain investigations outside the premises).

18 The prosecution called evidence from Mr Bliss (MSc (London) Public Health engineering, Honorary Visiting Fellow, School of Civil and Environmental Engineering, University of New South Wales, 40 years' experience in wastewater management). Mr Bliss's evidence posited various explanations for the emission of odours from the ponds on 14 and 15 April 2004, assuming that Mr Jamieson and Mr Newman had correctly identified the ponds as the source of the odours they smelt at the ponds on 15 April 2004. The defendant called evidence from Professor Greenfield (BE (1st class honours) in Chemical Engineering, University of New South Wales, B Econ, the University of Queensland, PhD (Chemical Engineering), University of New South Wales, Professor of Chemical Engineering and Senior Deputy Vice Chancellor, The University of Queensland, Order of Australia (2006) for services to in environmental management, wastewater management, biotechnology and engineering) addressing Mr Bliss's opinions about the emission of odours from the ponds on 14 and 15 April 2004.

19 The defendant called evidence from Mr Stephenson (Dip App Sc (biochemistry and organic chemistry), Swinburne Institute of Technology, M App Sc (chemical engineering and industrial chemistry), University of New South Wales (coursework completed with distinction and final project in progress), consultant since 1983 in environmental management, including emissions to atmosphere and industrial wastewater monitoring). This evidence mainly considered the weather and wind conditions in the period immediately before and including 14 and 15 April 2004, although Mr Stephenson also gave oral evidence about the biochemistry of the wastewater streams generated by the defendant's factory and their storage in the ponds. The prosecutor called evidence from Mr Todoroski (Bachelor of Engineering (Mechanical), University of Newcastle. Principal technical policy adviser and acting Manager Air Technical Advisory Services Unit within the Department of Environment and Conservation) in reply to Mr Stephenson's evidence about weather and wind conditions.

20 The prosecutor and the defendant tendered various documents including: - (i) business records of the defendant about its operations and management practices generally, and about operations in the period leading up to, and including, 14 and 15 April 2004, (ii) an audit report commissioned by the defendant and prepared by Mr Stephenson's company in June 2004 pursuant to a condition of development consent for a new stillage recovery plant constructed by the defendant, (iii) an incident report submitted by the defendant in accordance with the prosecutor's requirements under the defendant's licence relating to the events leading up to, and including, 14 and 15 April 2004, which report annexed a June 2004 report prepared by Mr Stephenson's company, and (iv) various records of interview with employees of the defendant not called to give evidence in the proceedings.

21 I summarise those parts of the evidence in the proceedings necessary to understand my findings in sections C to I below. Otherwise, I deal with the evidence, as relevant to my findings, in section J below.

C. The locality and the defendant's premises generally

22 Some matters about the locality and the defendant's operations were not in dispute.

23 The Shoalhaven River is located between Nowra, and North Nowra and Bomaderry. The Princes Highway runs through Nowra and Bomaderry. Bolong Road intersects with the Princes Highway north of the River, and runs generally west along the river alignment to Bolong and Back Forest.

24 The defendant's operations in the Shoalhaven area involved two premises, both of which were subject to licence 883, in force under the POEO Act. The factory premises were located on the southern side of Bolong Road, adjacent to the River, and to the east of the railway line (the Illawarra Railway). The environmental farm premises were a large area (slightly under 1000 hectares) located generally to the north of Bolong Road and east of Hannigans Lane.

25 The factory premises were used for the processing of flour, including into starch and gluten. The factory processes produced effluent or wastewater. The effluent was fermented to convert the starch and sugars into ethanol. The remaining effluent, after the ethanol distillation, was passed through screens and centrifuges to remove suspended solids. One product of this process was a solid component that was sold for stockfeed. The remaining effluent or wastewater was transferred to the environmental farm. The environmental farm area was used for two primary activities - the storage of wastewater and the irrigation of wastewater. The wastewater was stored in the ponds. The ponds were very large, and located just north of Bolong Road. They were not covered.

26 The defendant tendered an aerial photograph of the Bomaderry area with the points of the compass superimposed. The aerial photograph confirmed that the defendant's storage ponds were north of Bolong Road (a road running basically east-west), and east of Bomaderry (on an alignment between Edwards Avenue and Cambewarra Road). The plans annexed to the s 261 certificate show that the defendant's environmental farm extended over a very large area (just under 1000 hectares according to Mr Thompson) from Bolong Road in the south, west to the Railway Line at a point north of Edwards Avenue, and across to Broughton Creek in the east.

27 People in the locality knew and referred to the defendant as "Shoalhaven Starches", "Starches", and "Manildra" interchangeably.

D. Odours smelt at defendant's premises before 14-15 April 2004

28 Mr Jamieson was the officer within the Environment Protection Authority (the "EPA") responsible for the defendant's premises between early 1996 and mid 2002. In that capacity, he had visited the defendant's factory about 25 times, and the environmental farm a number of times. He had also visited other premises in the locality for which he was the responsible officer on a number of occasions. I infer he was familiar with the locality generally as a consequence of his employment responsibilities. Mr Jamieson identified that he had smelt a number of odours on the defendant's premises (factory and environmental farm) prior to 15 April 2004. He described those odours, and their effects on him, as follows: (1) Defendant's factory: - mainly "like a brewery odour. … a sweet odour", and sometimes a similar "yeasty, grainy type odour". This odour had no effect on him.

(2) Irrigation activities on defendant's environmental farm: - a fresh, grainy, yeasty odour - this odour had no effect on him. Also, where the effluent had sat on the paddock, an odour with a number of characteristics, reminiscent of human vomit and cheese - this odour had upset his stomach and made him burp. On a few occasions, an odour with a "strong dog faeces components to it" - this odour had upset his stomach and brought water to his mouth.

(3) Ponds on the defendant's environmental farm: - he smelt one main odour every time he inspected the ponds, being an odour with "characteristics which are very sharp, acidic … characteristics that resemble human vomit and characteristics that can resemble off-cheese; and plus other characteristics that I have difficulty describing". The effect of this odour depended on its intensity. When intense, this odour had "brought water to [his] mouth. It makes [him] feel uncomfortable".

29 Mr Jamieson had smelt the vomit and off-cheese odour and the sharp, acidic, vomit and off-cheese odour, outside the defendant's premises a number of times prior to 15 April 2004.

30 Mr Newman was the officer within the EPA responsible for the defendant's premises from July 2002. In that capacity, he had visited the defendant's factory "very frequently", and the ponds at the defendant's environmental farm "routinely". He identified that he had smelt a number of odours on the defendant's premises (factory and environmental farm) prior to 15 April 2004. He described those odours, and their effects on him, as follows: (1) Defendant's factory: - "a grainy type odour … like a bakery or a vegemite type odour". I infer this odour had no effect on him.

(2) Irrigation activities on defendant's environmental farm: - "a salty characteristic to it [and] what seemed to be like an alcohol in it as well. … like a salty type odour". This odour had no effect on him.

(3) Ponds on the defendant's environmental farm: - "a vinegary type odour. It had elements …like vomit or off-cheese to it as well". He perceived that odour as "a very sharp odour, a very strong odour", which he was able to "recognise … straight away just because of the foul characteristics to it". He found this odour varied in strength and was "very unpleasant". When it was "at its worst", he felt like vomiting. Even in its mildest stage he did not want to be around this odour. More recently, he had smelt an odour at the ponds with "a swampy type characteristic to it … like a stale odour" - unpleasant but no effect.

31 Mr Thompson, the defendant's manager of the environmental farm, described the odours he had smelt on the environmental farm as follows: In chief (1) Irrigation activities on defendant's environmental farm: - a malty sweet type of smell. When the ground was wet after rain, "a very urinal type of smell". If the irrigated effluent had been left for a long period of time to sit on the paddocks - a slight odour.

(2) Ponds on the defendant's environmental farm: - a fruity, acidy, grainy type odour from the "old" effluent, and a stale, swampy-type odour from the "new" effluent. Like Mr Jamieson, Mr Newman had always smelt an odour at the ponds (I infer, the fruity, acidy, grainy type odour).

(3) Ponds with solids only: - "a very sweet odour … a very, very nice odour, actually, coming off the pond solids themselves", not a strong odour. In cross-examination (1) Irrigation activities on defendant's environmental farm: - the "slight odour" referred to above was "unpleasant", a "very sour smell".

(2) On start up of irrigation: - a very strong stale odour could occur, a very acidic smell.

(3) Ponds on the defendant's environmental farm: - the fruity, acidy, grainy type odour, could be "unpleasant" under hot weather, as there was more evaporation and more volatiles given off. The odour had no effect on him, but was an unpleasant smell.

32 Like Mr Jamieson, Mr Thompson had smelt the unpleasant acidy, grainy type odour outside the defendant's environmental farm on a number of occasions prior to 14 and 15 April 2004.

33 Mr Lawer said there was "always a light glucosey yeasty smell; sometimes there was none" near the acid tank (his delivery point, quite close the ponds). He found that the range of that smell was "basically mellow to zero".

34 Mr Jamieson identified other potential odour sources in the locality and the odours he had smelt at those premises prior to 14 and 15 April 2004 as follows. (1) Minad factory: - The processes undertaken within the Minad factory involved blending dairy products (like powdered milk) and producing a product with ground-up shark cartilage. Mr Jamieson had been to the Minad factory about five times. On two occasions, his attendance at the Minad factory involved the investigation of odour complaints. On those occasions he smelt a fishy odour at the Minad factory that he found unpleasant. He described it as "more of an off fish odour".

(2) Dairy Farmers factory: - The wastewater treatment facility within the Dairy Farmers' factory could produce an odour "between a musty odour to a grease trap odour, or an odour similar to a grease trap, an old-style grease trap".

(3) Dairy Farmers irrigation area: - a musty odour.

(4) Paper mill: - odours "similar to wet papier-mache with a sour component to it". Mr Jamieson had also smelt this odour when driving past the paper mill.

(5) Bryce Farm: - A dairy farm, where cattle are run and milked. Mr Jamieson had been to Bryce Farm in response to odour complaints. Mr Jamieson was aware that at Bryce Farm effluent from both the Minad factory and the Dairy Farmers factory was sprayed onto paddocks for pasture management. While at Bryce Farm he had smelt "two odours. One was a manure-type odour from his dairy shed area. The other odour was a fishy odour".

(6) Bomaderry sewage treatment plant: - Mr Jamieson had inspected the Bomaderry sewage treatment plant "quite a large number of times". At this plant he had "smelt sullage type odours similar to the smell a washing machine gives when water has been left in it. I've smelt an odour particular to sewage sludge. It's difficult to describe. To me it's like sewage sludge, and I have smelt an odour with a high sulphuric point, a rotten egg gas component to it".

(7) Nowra sewage treatment plant: - Mr Jamieson had also inspected the Nowra sewage treatment plant "quite a large number of times". At this plant he had only smelt "sullage odours".

(8) Ridley Agriproducts: - Mr Jamieson was the authorised officer responsible for those premises at some time, and had inspected those premises. He had smelt odours at those premises which he described as "grainy and molasses-ey".

35 Mr Jamieson gave lengthy evidence about his observations and activities on 15 April 2004. Mr Jamieson visited the defendant's ponds on two occasions on that day. On the first occasion he arrived at about 12.30pm, with Mr Newman. They drove up the banks of the pond and parked at the junction between ponds 3, 5 and 6. Mr Jamieson got out of the car. He could feel a slight breeze from the east. He smelt an odour that had components that he had not come across before. Mr Jamieson said, "the closest descriptor I can give to that odour is it has stale or mouldy type components to it". The odour had no effect on him. He walked to the bottom bank of pond 3. He got as close as he could safely get to the edge of pond 3. He smelt an odour that had sharp, acidic characteristics. This odour had "characteristics reminiscent of human vomit and it had characteristics like off-cheese". He had smelt this odour before on the defendant's premises and elsewhere in Bomaderry. Whilst in this location, he felt a breeze from the east. He could also see a pump set up in pond 3. A hose ran from pond 3 to pond 4. In pond 4, he could see an up-welling around the hose. This hose ran from the bottom right bank of pond 3 into the top right bank of pond 4. 36 Mr Jamieson walked west with Mr Newman on the bank between ponds 3 and 4. He got a short distance and was overwhelmed by a terrible odour. He said that it "was a strong odour. It had strong vomit components to it. It had strong off-cheese components to it. It was a sharp odour and it had strong dog faeces components to it". This odour made him gasp and took his breath away. He forced himself to remain in the odour. He dropped blades of grass several times to see which way they travelled in the wind. He felt the wind on his face. He said that he formed the view that the wind was coming directly from the location of the up-welling in pond 4. He moved in and out of the "zone of influence" of that odour. He then walked west between the banks of ponds 3 and 4, and on the bottom bank of pond 2 and between ponds 1 and 2. When he walked between ponds 1 and 2, Mr Jamieson smelt an odour. He said that this odour did not have the dog faeces component to it, but had the "vomit components and the off-cheese components and the sharp components". He found this odour unpleasant. He then walked between ponds 1 and 6 to the western edge of the ponds. He saw a pipe spraying a liquid mist in the air. He observed that the mist was being blown to the east. He considered that this confirmed his view that the wind was generally from the east. He then turned south down the western edge of pond 1. Near the south-west corner of pond 1 he smelt the "strong odour with vomit characteristics, with off-cheese characteristics, with sharp characteristic and with a strong dog faeces characteristics". This was unpleasant. He dropped some blades of grass several times from head height to observe their movement. He "formed the view that the path of the wind was from the direction where I'd seen the disturbance in pond 4 towards me". He walked along the bottom banks of ponds 1, 2 and 3 until he reached pond 5. On reaching that point, he smelt the odour with "stale, mouldy-type characteristics about it".

37 At about 5.45pm on 15 April 2004, Mr Jamieson returned to the ponds. He parked on the bank of the north-east corner of pond 6. He sniffed the air and could not smell any unpleasant odours or odours out of the ordinary. He drove along the pond wall of pond 6 to its western wall. He got out of the car and smelt an odour that had characteristics reminiscent of human vomit and off-cheese, and which was readily detectable. He recalled no reaction to that odour. He observed that there were stronger and lighter movements of air at this time, generally from the east. He drove to pond 4. He drove around the pond and stopped on its western side, which was downwind at the time. He got out of the car and smelt odours like off-cheese and vomit, but much less intense than he had smelt at this location earlier in the day. He observed that the pumping seemed to have ceased (from pond 3 to pond 4).

38 Otherwise, between about 9.40am and 6.00pm Mr Jamieson drove around the locality, variously stopping and getting out of his car, smelling the air, making general observations of wind strength and direction (by observing physical markers where available, and dropping blades of grass from head height to see which direction they were being blown in). In the course of doing so, Mr Jamieson drove with his windows down and air conditioning off until after his second inspection of the ponds. He drove past each of the other potential odour sources in the locality that he identified (see above), mostly more than once.

39 Mr Jamieson identified the locations where he smelt and did not smell various odours throughout the day. Before visiting the ponds on the first occasion, near 80 Hannigans Lane at about 11.25am, Mr Jamieson was driving with Mr Newman and smelt an odour he had smelt before - which had "characteristics of off-cheese and vomit". That odour upset his stomach and brought water to his mouth and was unpleasant. After he had first inspected the defendant's ponds on 15 April, Mr Jamieson said he smelt the following odours and otherwise made observations at these locations (excluding some locations where Mr Jamieson did not smell any odours out of the ordinary as he was driving). (1) Jasmine Street, Bomaderry: - Mr Jamieson could not detect any odours.

(2) At the park on the corner of Tallayang Street: - During the course of having lunch, Mr Jamieson could smell odours wafting in and out. Those odours "had characteristics of vomit, off-cheese and some dog faeces odour". They were less intense than the ones he had smelt earlier when downwind of the up-welling in pond 4, but were "the same odours". He had an upset stomach. He tried to eat to settle his stomach. He observed generally that the breeze on his face was from the east and thought this was consistent with the movement of the trees in the park.

(3) Past the Ambulance station: - He smelt an odour with "vomit characteristics and off-cheese characteristics", which was the same odour he had smelt at the defendant's ponds and elsewhere that day.

(4) Nita Place, Bomaderry: - He got out of the car and smelt an odour "with characteristics reminiscent of human vomit and characteristics like off-cheese", which was the same odour he had smelt at the defendant's ponds, on Hannigans Lane, in Meroo Road, and in the park having lunch. When walking back to the car from the house, Mr Jamieson smelt "an odour with characteristics reminiscent of human vomit. It also had an off-cheese odour and it also had a dog faeces odour". This odour was relatively moderate to strong in strength. This odour had a slight impact on his stomach.

(5) Bomaderry sewage treatment plant: - He observed that the wind was generally from the east, east-north-east. Both upwind and downwind of the plant he smelt only the vomit and off-cheese odour. These were the same odours he had smelt at the defendant's ponds and elsewhere during the day. When quite close to the trickling filters he smelt a sullage odour of moderate strength. He walked to the inlet works. He approached from a downwind position and when quite close smelt "a sullage odour which is similar to water left in a washing machine for several days". He climbed to the top of the works and smelt the sullage odour. He walked back past the trickling filters and smelt the sullage odour. He did not smell any sewage odours.

(6) Sewer pumping station in Concorde Way, Bomaderry: - He smelt a diesel odour. He saw that there was a refuelling bowser near the pumping station. He moved upwind of the pumping station and did not smell "any odours out of the ordinary for a rural area". He walked east of the pumping station and did not smell any odours.

(7) Hannigans Lane at a point roughly west of the defendant's ponds at about 3.15pm: - He smelt a strong odour with vomit characteristics and off-cheese characteristics. This was the same odour he had smelt earlier in the day at the defendant's ponds and elsewhere.

(8) Dairy Farmers factory: - He observed that the wind was generally roughly east-north-east direction. He walked to the wastewater treatment tanks on their western (downwind) side. He smelt the odour with the characteristics of a grease-trap, as he had smelt earlier in the day when driving past this factory. He drove to the boundary of the Dairy Farmer's property on Bolong Road and walked along the road a short distance. He smelt the same grease trap odour, but it was less intense. That location was about 100 metres from the point where he detected that odour. He drove past the defendant's factory and parked at premises known as Shoalhaven Steel and sniffed the air. He could not smell the grease-trap odour, but could smell a light brewery odour. That was not an unpleasant odour. He drove further to the west to a point where he could drive north-south. He did that and got out of his car two or three times to sniff the air. He could not smell the grease-trap odour, only the light brewery odour.

(9) Bowada Street, Bomaderry near Thurgate Oval: - He smelt an odour wafting in and out that had characteristics like human vomit and like off-cheese.

(10) Karowa and Bunberra Streets, Bomaderry: - When he got out of the car he smelt an odour with "vomit characteristics and characteristics reminiscent of off-cheese, vomit odours". This odour was "readily detectable". As he walked up and down the street, the odour brought water to his mouth. When he spoke to Mr Gordon (a resident), Mr Jamieson "smelt an odour with characteristics reminiscent of human vomit, and also it had a slight dog faeces odour to it as well", and when he walked up and down the street the smell upset his stomach slightly. He observed Mr Gordon's wind sock, which showed a generally easterly wind.

(11) The Minad factory: - He walked downwind of the factory, on its western side, and around the effluent storage tank. He did not smell anything.

(12) Nowra sewage treatment plant: - He parked at the gate and walked the northern boundary of the sewage treatment plant, where the main infrastructure is. As he got near the sludge lagoons he smelt a sullage odour. He smelt the same odour where the inlet and trickling filters were located. He walked near the maturation pond. He did not smell any unpleasant odours or any odours out of the ordinary for a rural area. He walked back along the boundary and smelt the sullage odour at the same point. He stopped and walked away from the boundary. He walked north and after about 20 metres could not smell the sullage odour. Wind conditions were calm at the time.

(13) Princeton Place, Bomaderry: - Mr Jamieson got out of his car, but could not smell any unpleasant odours or odours out of the ordinary in an urban environment.

(14) Bolong Road, roughly near the ponds on the defendant's environmental farm: - He smelt "a fairly strong odour with characteristics of vomit and off-cheese".

40 Mr Jamieson was cross-examined at length about his credit and various steps he took or did not take throughout the course of 15 April 2004 and thereafter. Mr Jamieson denied that he had exaggerated the strength of the odours he smelt and the effect on him. He agreed that in his notes dictated during his first inspection of the ponds he had used the phrase "grease trap odour" to describe the odour which he had determined was coming from the up-welling in pond 4 (his words in the note were "…it's a combination of dog crap and kind of a grease trap odour, very, very offensive and we are immediately downwind"), but had omitted the word "grease-trap" in his oral evidence.

41 Otherwise, Mr Jamieson agreed, for example, that he had not measured the concentration of the odours he smelt with an olfactometer, he had not checked his wind directions with a hand held anemometer and compass, he had not changed his clothes during 15 April, he had not taken steps to neutralise his sense of smell in the field, and he had not walked in a direct line from the ponds where he identified the odour and the odour source across the boundary of the defendant' premises to Hannigans Lane. He also agreed with many other propositions put to him in cross-examination about his investigation - for example, his failure to comply with testing guidelines about the liquid samples taken in ponds 3 and 4, the absence of sludge samples, the absence of microbiological tests of sludge or liquid samples, and the absence of full and contemporaneous notes of a conversation he had with the defendant's then environmental manager, Mr Hill.

42 With respect to alternative odour sources, Mr Jamieson accepted or stated that: - (i) there were no buildings between the paper mill and the ponds, (ii) the distance between the ponds and the paper mill was about 350 metres, (iii) if the prevailing winds had been such that he ponds were downwind of the paper mill and the paper mill was the source of dog faeces odour, such an odour theoretically could have come across from the paper mill to pond 3 or pond 4, (iv) he drove past but did not go into Ridley Agriproducts, (v) he did not go into the farms located south of Bolong Road and east of the paper mill (or the paper mill), (vi) he did not go into a farm north of Bolong Road, (vii) he drove past Schofield's Farm and Eaton's Farm a number of times but did no go into either farm, (viii) he had the windows of the car down for the vast majority of the day, and was making observations during the course of the day, so that it was not necessary physically to inspect all premises to rule them in or out as a potential odour source, and (ix) as a general proposition, odours were sometimes similar.

43 Mr Newman said that, in his experience, the wastewater treatment system at the paper mill could cause odours. He had smelt a "sewage type odour" coming from the paper mill on an occasion prior to 14 and 15 April 2004. However, he did not recall having smelt a "dog faeces" odour from the paper mill or having described any odour he had smelt there as a "dog shit" odour.

44 Mr Newman, like Mr Jamieson, gave lengthy evidence about his observations and activities on 15 April 2004. Mr Newman also visited the defendant's ponds on two occasions on that day. The first occasion was with Mr Jamieson at about 12.30pm. Mr Newman said that on arriving at the ponds he saw a hose that ran from the south-east corner of pond 3 to the north-east corner of pond 4. He observed effluent up-welling in the north eastern corner of pond 4. As he got near where the hose entered pond 3, he smelt a very strong odour. He described the odour as "concentrated dog faeces. It was an extremely concentrated and strong odour". The odour caused him to gag and saliva to come into his mouth. He said there were elements of this odour near pond 3, but it seemed strongest near the up-welling in pond 4. He recalled that there was a light easterly breeze with a southerly component. He saw Mr Jamieson throw blades of grass in the air and also did so, and turned his face into the breeze. Mr Newman said he had never smelt this odour before. He said they then walked along the western edge of pond 5, and he smelt "a swampy type odour". They then walked down the east-west access road between ponds 3 and 4. At a point about 30 metres from the up-welling in pond 4, the odour seemed to be at its most concentrated. He saw Mr Jamieson throw blades of grass in the air and also did so. He formed the view that they were directly downwind of the source of the odour (that is, the up-welling). He found himself gagging. He found the odour extremely strong and concentrated, and wanted to get away from it. Again, he had never smelt that odour before. He then walked west past pond 2 to pond 1. At pond 1 he found the odour most concentrated, in a location he thought directly downwind of the up-welling in pond 4. He then walked between ponds 1 and 6.

45 Mr Newman returned to the ponds in the mid-afternoon on 15 April 2004. He drove to the eastern embankment of pond 5 and headed south. He did not smell any odours. He drove west along the southern embankment of pond 5. He smelt a swampy odour. He then drove up the western edge of pond 4, heading north. Two thirds of the way along the western edge of pond 4, he smelt again "the extremely strong and concentrated dog faeces type odour". It made him gag. He felt the urge to vomit. He said it was the same odour he had smelt from the up-welling area at pond 4. He got out of the car and walked a short distance back and forth and turned into the wind. He determined that he was downwind of the up-welling in pond 4.

46 Otherwise, Mr Newman was in, and driving around, the locality between about 10.40am and 6.00pm. In the morning, he drove along Bolong Road past the Dairy Farmers factory (he smelt a grease-trap odour), Ridley's Agriproducts, then the defendant's factory (he smelt a vegemite odour), and along Railway Street past the Bomaderry sewage treatment plant, before meeting Mr Jamieson to travel together. Mr Newman said that at about 11.25am, after driving about 100 metres along Hannigans Lane with Mr Jamieson, he smelt an odour that was "like a strong vomit type odour". He said he had smelt that odour before at the defendant's ponds and "in the community". The point where he smelt this odour was south of Edwards Avenue. This odour was very strong. It caused him to gag. It was an extremely strong odour and caused a strong reaction in him. After he inspected the ponds (on the first or second occasion), Mr Newman said he smelt the following odours, and otherwise made observations, at these locations (excluding some locations where Mr Newman did not smell any odours out of the ordinary as he was driving). (1) Jasmine Drive, Bomaderry: - no odours.

(2) Park in Bomaderry at lunchtime: - Mr Newman smelt an odour. He observed the wind in the trees and felt the wind in his face and thought the wind was coming from the east with northerly components to it.

(3) Nita Place, Bomaderry: - He smelt "the vomit type odour with off-cheese type elements to it". He noted that the wind was gusting at that time. The smell made him queasy, produced saliva in his mouth and he had the urge to vomit. As he was walking down the driveway he "detected the concentrated dog faeces odour again", which he found "extremely concentrated" and wanted to get away from as he had a strong reaction to it.

(4) While driving east on Cambewarra Road, near Brinawarr Street to go home: - he "drove into an extremely concentrated odour. It was the concentrated dog faeces type odour". He said, this was "the same odour I'd smelt in the proximity of the up-welling effluent on pond 4". The odour was so strong and bad that he pulled over and made arrangements to stay in the area. He had to fight the urge to throw up, and was swallowing saliva.

(5) Corner of Cambewarra Road and Meroo Street: - He drove again into the concentrated dog faeces odour. He said that this was the same smell he smelt in the proximity of pond 3 and the up-welling effluent at pond 4. The odour made him feel queasy, like he wanted to throw up and he wanted to get away from it.

(6) Driving along Railway Street past the sewage treatment plant: - He again smelt the concentrated dog faeces odour, which had the same effect on him as before.

(7) Jennings Lane: - He got stuck behind a herd of cows, which he could smell, and arrived at the northern end of Jennings Lane. He detected an earthy odour.

(8) Paper mill: - He looked at the flagpoles and saw that wind was easterly with a northerly component. Mr Newman went to the wastewater treatment plant on the paper mill premises. As he got close to the primary clarifier tank, he smelt a sewage odour. He did not find that odour as strong or concentrated, and it did not have the concentrated dog faeces components, he had smelt earlier in the day at the defendant's ponds and elsewhere. He walked around the clarifier until he felt the wind on his face. He walked a series of circles around the clarifier at 10, 50 and 100 metre intervals. He wanted to be sure it was not the same odour as the concentrated dog faeces odour. He said this sewage odour "didn't have the characteristics of the concentrated dog faeces odour" he had smelt at the defendant's ponds and elsewhere. As he walked the circles he threw blades of grass in the air. He could not smell the sewage odour at 100 metres from the clarifier.

(9) Sewage pump station at Concorde Way: - no odours.

(10) Sewage pump station near Victa Way: - He smelt a sewage type odour. About 10 metres downwind of this pump station, he could not smell this odour.

(11) Meroo Street, Bomaderry: - He again smelt the concentrated dog faeces odour that made him want to throw up. He met Mr Jamieson. He sat down with him outside the bakery on Meroo Street and smelt the "vomit type odour".

(12) Karowa Street, Bomaderry: - Mr Newman spoke to Mr Williamson. Mr Newman smelt the vomit type odour when talking to Mr Williamson.

(13) Driving past Dairy Farmers factory at about 5.50pm: - he smelt "the grease trap type odour that I'd associate with the Dairy Farmers operation".

47 Mr Newman was cross-examined at length about his credit and various steps he took or did not take throughout the course of 15 April 2004 and thereafter. Mr Newman agreed that in his affidavit he had not used the descriptor "off-cheese" to describe the odour he smelt on Hannigans Lane on 15 April 2004, but had said "vinegar and vomit". He denied he was attempting to be consistent with other witnesses, including Mr Jamieson, but said that the odour could be described by a number of different descriptors, including "off-cheese" which was a descriptor he had used before and would use to describe the odour he smelt. He said that the purpose of walking in concentric circles around the wastewater treatment plant at the paper mill was to see if the sewage odour was carrying, as it was not a very strong odour. He had not smelt it when he arrived at those premises and did not believe he had smelt it earlier in the day. He said he could distinguish the odour from the wastewater treatment plant at the paper mill from the odour at the defendant's ponds, as they did not have similar elements, but accepted that the two smells did both have characteristics of faeces, and that it may be very difficult to determine actual characteristics of faeces (for example, he agreed he could not tell the difference between dog and cat faeces). He said he did not smell any grease-trap odour between ponds 3 and 4, but had smelt a grease-trap odour around 10.41 whilst driving along Bolong Road in the vicinity of the Dairy Farmers factory, again, outside the Dairy Farmers factory on Bolong Road at 14.41, and again at 17.50 in the same vicinity. When it was put to Mr Newman that the odour he smelt at the ponds was not nearly as bad as he said, he responded "I can say that is the worst odour I've ever smelt on the Shoalhaven Starches premises".

48 Otherwise, Mr Newman agreed, for example, that he wore the same clothes all day on 15 April 2004, he did not take any steps to "neutralise his sense of smell" on 15 April 2004, and he had not been trained in distinguishing odours.

49 With respect to alternative odour sources, Mr Newman agreed that he knew generally of Eaton's Farm, but not Schofield's Farm. He had driven past Eaton's Farm with the windows down, but had not gone into that premises.

G. Other evidence about odours on 14 and 15 April 2004

50 Mr Lawer made a delivery of sulphuric acid to the defendant's environmental farm on 15 April 2004. He arrived at the acid tank at about 4.00am. The delivery process takes about 50 minutes to an hour. Mr Lawer wore protective equipment when delivering the sulphuric acid - "goggles, little face shield, safety hat, and at the time it was wet weather gear" and thick rubber gloves. The face shield was to protect him from splashes. In the truck, he had an acid mist respirator if necessary, but he did not wear it during deliveries. While making the delivery, he waited around the pumping area wearing his protective gear. He did not smell anything unusual. He said that had he smelt anything unusual or out of the ordinary that he considered relevant to safety or hazard issues, he would have recorded it in his diary. Mr Lawer agreed that inhalation of sulphuric acid gas or mist can lead to damage to the mucus membranes of the nose, and that he did not wear his acid mist respirator when venting the tank. He thought he had a keen sense of smell. A chemical fact sheet from the supplier of the sulphuric acid referred to the acid as having the properties "fumes strongly in moist air" and "extremely hygroscopic" (that is, absorbs or attracts moisture). Personal protection requirements included that "if inhalation risk exists wear acid mist respirator".

51 Mr Thompson was at work at the environmental farm on 14 April 2004. Mr Thompson said that they were preparing to commence irrigation on the next day (15 April) and he made arrangements with the employees he supervised on 13 and 14 April 2004 to enable that to occur. He did not smell any unusual odours throughout that day on the irrigation paddocks or near the ponds. On the afternoon on 14 April 2004, in response to information he received about an odour complaint, Mr Thompson drove out onto Bolong Road, continued west past the defendant's factory premises, crossed the Shoalhaven River Bridge with his windows open and tried to smell any odour. He could not smell anything. He continued along the Highway, turned around and drove back up the Highway to where it intersects with Meroo Road (north of Bomaderry township), turned into Meroo Road (with his windows open) and drove down that road to Bomaderry. He turned into Meroo Street and then into Bolong Road and went back to the environmental farm area. He did not smell any odours during that exercise.

52 On 15 April 2004, Mr Thompson was on holidays. He received a call that morning at about 8.00am on his mobile phone from a resident who had his mobile phone number. The resident lived in Lyrebird Avenue, Nowra south of the River and just east of the Bridge, and complained of odour in her area. Mr Thompson called the defendant's environmental manager, Mr Hill, to advise him of the call. Mr Thompson drove from his home in Illaroo Road across the Bridge and into Riverview Road and Terara Road and back along the Highway. He did not smell any odours. After that, he went to Sussex Inlet for the day. He received four phone calls on 15 April 2004 relating to work matters, but none suggested to him anything unusual was occurring. He returned to work on 19 April 2004.

53 As noted, thirteen people who lived or worked in the locality gave evidence about odours they smelt on 14 and 15 April 2004, and the affidavit of one resident was read by consent. These people had not been onto the environmental farm or inspected the ponds at any time, but a number had driven past the ponds. They smelt the odours in different locations throughout the area. A summary of the odours they smelt, when and where they smelt them is set out below. (1) Ms Smith: - Smelt a "mixture of cat and dog faeces" when she woke up at about 6.25am on 14 April 2004 at West Birriley Street, Bomaderry. The smell made her feel nauseous. She could not open the windows or doors all day. She went to Nowra private hospital on 15 April 2004, and noticed the same smell in the hospital car park at about 8.30am.

(2) Ms Russell: - On 14 April 2004, at about 4.30pm, she smelt a "terrible putrid smell". The windows and doors were open and the smell came through the house at Terara - "a dirty vomit-like smell, very unpleasant". The smell had no physical effects on her, other than to make her feel uncomfortable. She closed the windows and back door. Twice during the night (at about 1.00am and 3.30am), she let the dog out, and noticed the smell was still as strong. At about 8.15am on 15 April 2004, Ms Russell walked outside her house. It was still foggy. She noticed that the smell was still extremely strong - as strong as the night before. She drove to the Council where she worked. The smell was still strong when she got out of her car in the Council carpark. The best description she could give to the smell was a "putrid sulphur-like smell, a bit like sweet vomit". It did not smell like dog faeces. It could be described as an off-cheese smell. It was a sour smell. She had smelt sewage smells before in the area. It was not a sewage smell.

(3) Mr Marshall: - On 14 April 2004, he arrived home (Dalway Street, Bomaderry) from work at about 5.00pm. He got out of the car and noticed a "revolting smell". The smell made him feel a bit sick. He found the smell very unpleasant. He went inside. His wife had the house all locked up and incense burning. When asked if the smell he described as having smelt on 14 April 2004 was very different from the "the usual Bomaderry odour coming from Shoalhaven Starches" that he had referred to, he said "Yes, I think so". (4) Ms Collingridge: - At approximately 5.15am on 15 April 2004, she was awoken by a "very acrid, caustic sort of smell" coming into the window of her bedroom (Bunberra Street, Bomaderry). Ms Collingridge likened the smell to "something you'd smell in a science lab at school, like a sulphur type - a sulphur based smell, a fairly powerful acrid type smell". The smell was so strong that she could taste it. She shut the window and went to the kitchen to have a glass of water to "kind of wash the smell away". She had not smelt a smell like that "unless you are talking about school, in a school science experiment". At about 6.30am, Ms Collingridge took the dog for a walk. She did not notice the smell at that time which seemed to have dissipated. Ms Collingridge said that the smell she smelt on the morning of 15 April 2004 was a different smell from the defendant's "normal" smell.

(5) Ms Walker: - At about 6.15am, Ms Walker awoke and opened her bedroom window at Worrigee, and noticed a sickly smell. She described this as "a yeasty, sickly, sweet, foul smell". The smell had no effect on her, but she immediately closed the window. She went to her daughter's bedroom, opened the window, smelt the same smell, and close that window again. She had never smelt that smell at Worrigee before. The smell was also at the bus stop (along Worrigee Road to the north about 400 metres), and she let the children stay in the car to wait for the bus. She went to the Council Chambers in Nowra CBD and noticed the same smell. She had driven by the defendant's premises and had smelt the same smell in that vicinity "many, many times". Ms Walker said the smell was not a sewage smell, not a dog faeces smell, was close to a vomit smell as it was very yeasty and sickly and sweet, but was not an off-cheese, grease trap or vinegar smell.

(6) Ms Taylor: - Ms Taylor opened the sliding doors and windows at her home at Worrigee at about 6.30am on 15 April 2004. She noticed a "foul odour, stale milk, smelly sandshoes - just a foul odour". It had no physical effect on her, but it was "very offensive", so she closed the house up to stop it getting in the house. She had never smelt that odour at her home before, but she had smelt it "in the CBD, down at work, mainly in the Bomaderry area", depending on the winds. She had driven past the defendant's premises and noticed the odour there when the southerly was blowing. Ms Taylor drove to work. When she got out of the car at her work (Shoalhaven City Council), she smelt the same odours - it was "very strong" because it was "very still", with no wind to move it on. Ms Taylor said the odour was not a sewage odour or a dog faeces odour. She could not say if it was an off-cheese odour - it would depend on the kind of cheese. She could not "pinpoint" the odour description - it was "sort of a combination of odours", but "vile, sour, sour".

(7) Ms Anstiss: - As she was walking to her work at the hospital on the northern side of the River near the turn off to the golf course, Ms Anstiss smelt a rancid vinegar smell, "a vinegar smell but with a horrible rancid nature to it". She said it was a "familiar smell with a horrible - as if it had gone rancid". The smell was so strong that Ms Anstiss had to cover her nose and mouth with a handkerchief for her walk, as the smell was "such an objectionable smell that I couldn't breathe it in". The smell ruined her walk. That smell seemed also to linger around the hospital that day. She said the smell was not a sewage, off-cheese, stale milk or vomit smell.

(8) Ms Davidson: - Ms Davidson smelt an odour which came into her house at Lyrebird Drive, Nowra in the morning on 15 April 2004. The smell was revolting, like flour that had been left in water for a long time "… it smells likes vomit by the time it rots. That's how it smells to me. It has that terrible odour". Also, that "if you let anything rot in a bowl, that's what it has, that sickening vomity smell". She grew up on a dairy and knew what rotting milk smelt like - which has a different smell. The 15 April 2004 smell nauseated her. She had smelt that smell in the past, but it was stronger that day. She had smelt it before inside her home, as she drove along Bolong Road, and at the bowling club in Bomaderry. With respect to Bolong Road, she said that "I've smelt it just before you get to Manildra, all of a sudden, the smell comes, and also - well, and other areas along Bolong Road, that same smell is there too".

(9) Ms O'Neill: - While driving to work along Bolong Road and across the bridge, Ms O'Neill smelt a "foul smell". It made her feel she was going to be physically sick. It was like a "rotting garbage and sewage, like, you know, when grass … that has sat there and it goes rotten. It was really quite bad". She described it as "a mixture of rotting garbage, sewage, silage. It was just really - it was a really hard smell to describe". She had never smelt that smell before. She smelt the same smell in various streets of Nowra in the morning. Ms O'Neill called the Council and the EPA about the smell. Ms O'Neill had smelt smells from the defendant's premises in the past and said that this smell was a "different smell". The smell she associated with the defendant's premises was not exactly that smell, but a mixture "of rotting vegetation and a yeasty - like a yeasty, hop smell". She went back along Bolong Road at about 6.00 or 6.30 pm that night, and did not smell the odour.

(10) Mr Ash: - Mr Ash said in his affidavit that at about 8.00am to 8.30am on 15 April 2004, he was awoken from sleep by a smell like "dog poo". The windows and doors were closed. The smell was throughout the house. He left for work at about 9.30am. He came home about 10.00pm, and the smell was still present outside the house. The smell was not a dairy farm smell (he worked next door to a diary farm).

(11) Ms Medcalf: - On the morning of 15 April 2004 just before or after 9.00am, Ms Medcalf was driving to work via Bolong Road. She said "I notice quite frequently a smell from the industry along there, and on that particular day it was actually a lot worse than it had been previously, and has been since". She said the smell was a "sour smell" and not pleasant. She said it "impacted in such a way that it actually hit the back of my nostrils. I could still smell it even with the vents closed and the windows closed" and it made her feel quite nauseous. She could still smell the odour at her work in Nowra. Ms Medcalf drove home the same way. She left at about 4.10pm. Whilst driving on Bolong Road, she smelt the same smell at the same place, but not as strong as in the morning.

(12) Mr Williamson: - At about 10.00am on 15 April 2004, Mr Williamson opened his backdoor (Karowa Street, Bomaderry), and noticed a terrible smell, "a rotting, sickly, sweet vegetation type smell. It has its own unique characteristics". He closed all the windows and doors to keep the smell out. He hung some washing out, but took it back in at about 10.30am, as he was afraid the smell might get into the clothes. He had smelt the smell before on more than one occasion - "at home, in the main street of Bomaderry, in Bolong Road, Bomaderry, at the boat launching ramp at Bomaderry Park, the Princes Highway, Bomaderry, virtually a 5-kilometre radius from where I reside". The particular location where he more frequently smelt this smell was right next to the defendant's ponds. At about 4.30pm, Mr Newman came to his house. He and Mr Newman went outside. Mr Williamson smelled the same terrible smell at that time. He thought the odour was stronger and more intense than he usually smelt, a "more undiluted smell".

(13) Mr Gordon: - Mr Gordon arrived home (Bunberra Street, Bomaderry) at 2.30pm on 15 April 2004. When he got out of the car he noticed a "fairly pungent smell, a strong smell". He said the smell was "a very acidic type of smell, very, very in your face type of smell… It had a bit of a sick taste to it, like vomit. Yep, very much like a vomity smell. Yep, that's how I'd describe it. Yeah, very sick… a very ill taste". The smell made him uncomfortable. He went inside and opened the windows because it was a fairly warm afternoon. The smell came into the house, so he closed the house up. He burned some incense to try to dissipate the smell. He said he could "feel it [the smell] into my nose and face a bit, and into my sinus. It was a fairly sharp type of feeling". He explained that it "was like solid jam or something up your nose, hitting your sinus. It was quite a painful smell. I do distinctly remember that. That's probably part of the reason why I contacted the EPA, because it was that type of smell. It was just not a typical smell. It had an effect on me". Mr Gordon said he had smelt the smell before, but not as strong. He worked in Wollongong and went via Bolong Road. He said the smell could be smelt near the area where the defendant's ponds were on the left. He said that when Mr Jamieson arrived at his home in the afternoon, the odour was still there, but not as strong, and his wind sock showed the breeze was blowing from the east north-east.

(14) Mr Mawer: - At about 4.00pm on 15 April 2004, Mr Mawer was driving across the Shoalhaven River Bridge when he noticed "a silage, sickly silage smell, sour". Mr Mawer said it "it smelt a bit like cat poo to me". He thought the smell was "repulsive". He also smelt this odour at Karowa Street in Bomaderry, Regal Place, Bomaderry and his home at Princeton Place, Bomaderry. The smell was all through the house. He had smelt the odour before and said it could be smelt anywhere around Bomaderry, anywhere on Bolong Road between Broughton Creek and Bomaderry.

54 Mr Patterson is an authorised officer of the EPA. He had inspected the defendant's premises during the course of his duties on a number of occasions. Leading up to 14 and 15 April 2004, he had attended at the ponds about once a month to check on the operation. On 15 April 2004, he attended a meeting at the Shoalhaven City Council Chambers in Nowra. He arrived at about 8.50am. When he got out of the car, Mr Patterson said that he smelt a strong odour. He thought the smell was very similar to what he had smelt before at the defendant's storage ponds. Mr Patterson said that the smell was "a sickly sweet vomit type odour in the air, and that's what I characterise very similar to what Shoalhaven Starches ponds smell like". The smell made him turn his nose up, but certainly did not make him feel sick.

55 Mr Stephenson's report to the Court was "Review of Information Related to an Odour Incident which occurred on 14 and 15 April 2004" dated March 2006. This report addressed a number of issues. Mr Stephenson's primary criticisms of the investigation by Mr Jamieson and Mr Newman were as follows: (1) Absent specific training, people tend to group odour descriptions, which can make it impossible to determine what was being detected. This vocabulary limitation can be overcome by use of an "odour wheel" which contains structured guidewords. No use was made of an odour wheel in the investigation. Without the use of an odour wheel, it is not possible to say with certainty that offensive odours from different sources have not been grouped together and attributed inappropriately to the defendant's ponds.

(2) There are a number of potential odour sources in the Bomaderry area. It is necessary to have detailed knowledge of the odour emissions from each odour source before and during the odour incident to be able to determine which sources created the odour incident. Mr Jamieson and Mr Newman did not inspect each odour source.

(3) It is not possible to know with accuracy the wind directions and speeds at the locations where Mr Jamieson and Mr Newman made observations on 15 April 2004. The meteorological data measured winds at the environmental farm, not at the locations attended by Mr Jamieson and Mr Newman. Mr Jamieson and Mr Newman did not measure wind speeds and directions at these locations.

(4) Mr Jamieson and Mr Newman did not adopt a formal methodology for assessing odour sources. They exposed themselves to all odours in the area. Hence, there is a very real risk that they biased their sense of smell and contaminated their clothes and cars with odour. Good practice involves minimising exposure to odours and breathing purified air before undertaking an assessment. Also, the sensitivity of the assessor should first be established (that is, whether they have a sensitive or insensitive sense of smell).

(5) Mr Jamieson and Mr Newman did not undertake odour strength measurements at their observation points. As such, the strength of the odours they experienced cannot be determined.

(6) Weather conditions before and during the incident were calm to light and highly variable breezes overnight under the presence of inversions, with wind speed increasing to light to moderate breezes and winds in the morning, with north easterly breezes and winds in the afternoon. Under such conditions, odour emissions would be expected to remain within the Shoalhaven River valley and mix overnight. The mixed odours would then be transported away as the winds increased in the mornings, making it impossible to know the exact source of the odours.

(7) The defendant operated three weather stations. Two were not located in a suitable place for the purpose of this investigation. One was so located, and complied with the Australian Standard. The EPA used data from one of the unsuitable weather stations. This would lead to inaccurate conclusions. As noted, this data did not relate to the locations of observations by Mr Jamieson and Mr Newman away from this weather station. Without data about both the release point and the observation location, it is not possible to know the likelihood of odours leaving the release point and reaching the observation point.

(8) When Mr Jamieson and Mr Newman said they smelt odours from the defendant's ponds in Bomaderry on the afternoon of 15 April 2004, the wind was not blowing from the ponds to Bomaderry. It was blowing in a direction to the south of Bomaderry. Odours experienced on that afternoon would most likely be from a source north-east of Bomaderry. One complainant had said he smelt the same odour twice - on the afternoon of 15 April 2004 and earlier. Hence, the earlier odour also came from the north-east of Bomaderry.

(9) While there is evidence that an odour incident occurred in the Bomaderry area on 14 and 15 April 2004, it is highly unlikely or not possible that the environmental farm pond odours were the source of the odours smelt by a number of complainants. For the balance of complainants, it is not possible to demonstrate that the ponds were the only potential source of the odours impacting on Bomaderry, or even the most likely source.

56 Mr Stephenson's company prepared a report which accompanied the defendant's incident report to the EPA. That report concluded that: 27 odour incident reports were reviewed and from the assessment the following conclusions were made:

· 23 of the 27 complaints could be attributed to a number of potential odour generating activities in the Bolong Road, Bomaderry and Nowra areas, including Shoalhaven Starches. · The other potential odour generating activities in the area include: Paper Mill, Dairy Co-operative facility and associated activities, Bryce's irrigation Area, Bomaderry Wastewater Treatment Plant (WWTP), Minad Factory, local saleyards and Nowra WWTP. · The Environmental Farm was operating as per operating procedures and no incidents were recorded. · A heavy fog was present on the morning of the 15 April. · Unusually elevated temperature on 14th April, not typical of the season. · The heavy fog would have "trapped" any odours generated in the river "valley" and these odours would not have dispersed until the fog lifted and wind speed increased later in the morning. · The complaints reports from the Bomaderry area was considered likely to be attributable to either or a combination of the Bomaderry WWTP, Shoalhaven Starches Environmental Farm or any other activity occurring to the east of the town.

57 Mr Stephenson confirmed that he had had a long and profitable relationship with the defendant, which was continuing. He said that he was giving independent expert evidence in this matter.

58 Mr Stephenson said in chief that, as at April 2004, the defendant's ponds did not have the capacity to generate dog faeces, vomit, off-cheese or sewage odours, as substantial changes had been made to the effluent as part of pollution reduction program 7. He also said that if Mr Jamieson and Mr Newman smelt the smells they say they smelt at the ponds at about midday then …it would appear that those odours could not have come from the ponds and that they were following these plots that are before me, that those odours could have come from somewhere else or been travelling in that air mass that had been moving around since the inversion had broken up earlier in the morning, and they were still following as a package of air and following the plots. The concept of plotting of both the red plot here and the green plot are both showing that the air moved at varying times - either it was stationery or it was being pushed by a breeze that was moving that total air mass. The air mass wasn't strong enough to break it up until later on.

59 The red and green plots are a reference to Exhibit 17, a recreation of an odour path prepared by Mr Todoroski.

60 With respect to the apparent intensity of the odour at the ponds, Mr Stephenson said: The intensity is a little unusual but the intensity would indicate that that air mass was - they were in that air mass, or that air mass was travelling with them, meaning that they had now developed some - either via their vehicle or their clothing or the location of their movements was drawing that air with them.

61 Mr Stephenson said that it was possible that the odours smelt by Mr Jamieson and Mr Newman at the ponds came from outside the defendant's premises. He said that this possibility was "…definitely not pie in the sky".

62 In cross-examination, Mr Stephenson agreed that none of his evidence about the absence of capacity for the ponds to produce dog faeces odour, vomit odour or off-cheese odour appeared in his report to the Court (or his June 2004 report attached to the defendant's incident report), even though they were important points. Mr Stephenson denied that the conclusion he reached in June 2004 (23 of the 27 complaints could be attributed to a number of potential odour generating activities in the Bolong Road, Bomaderry and Nowra areas, including Shoalhaven Starches) was inconsistent with his oral evidence of the absence of capacity for the ponds to produce such odours, as the issue then was the "contribution of the odours" and it did not matter what the odour was. He agreed that, in hindsight, the conclusion of the June 2004 report should have been that 23 of the 27 complaints could be attributed to a number of potential odour generating activities in the Bolong Road, Bomaderry and Nowra areas, including Shoalhaven Starches "with the exception of vomit, off-cheese and dog faeces" odours.

63 With respect to vomit odours, Mr Stephenson said that the capacity for the ponds to produce such odours had changed in 2003. When asked to explain the reason for the change, he said: The acid protocol and the realigning and reprocessing of the way water, wastewater, was pH adjusted and pumped to the irrigators. So that the reason that - there are probably a couple of reasons why that foul smell would appear, and one of those was the fact that the solids content that was in that water was just too high, so the solids that were lying on the ground would then ferment and produce that foul vomit, carboxylic acid.

64 He later agreed that the acid protocol had in fact been in place since the early 1990's.

65 He accepted that the pond solids had the potential to produce such vomit odours in 2003 (but said it was much harder for off-cheese odours to be produced), but not subsequently. Mr Stephenson agreed that he had carried out the June 2004 environmental audit. He agreed that the June 2004 audit disclosed that the "old" pond solids, in fact, were still in pond 3 at June 2004, but said they were "passivated with acid". He was not aware that there were no records of acid having been added to the pond solids in pond 3. He then gave this evidence: Q…Let's assume there's a bit of water on the top and that acid hadn't been added to that pond between January and April 2004, do you accept that there was a real capacity for pond 3 to produce an odour? A. If it was full of solids and they were compacted, no, it wouldn't be possible.

Q. It wouldn't be possible to? A. Generate the odour.

Q. Why then in June 2004 did you recommend to the company that they remove the solids? A. Because the whole - the solids - the principle was to get - you just can't keep a pond that should be full of wastewater full of solids. The solids had to be removed.

Q. Is that a serious answer? You were recommending to the company in June 2004, weren't you, that they remove the solids because that was causing odour problems? A. It was one potential source of odour.

Q. It was, can I suggest, the only source of odour you concentrated upon in your audit of 2004; would you like to see it? A. Yes.

66 Mr Stephenson's evidence in cross examination continued as follows: Q. Can I suggest to you that one of the matters that you had to deal with in this annual environmental audit report of June 2004 was the fact that offensive odours were still being emitted from these premises? A. The environmental audit, PRP7, was to review progress of how PRP7 was going relative to its charter and consent.

Q. What does that mean? Listen to the question. I will put it in a simpler way if you like. Were there or were there not offensive odours being emitted from the farm around the time that you conducted your environmental audit report in June 2004? A. We were investigating possible sources of odour.

Q. Were offensive odours, to your knowledge, being emitted from the defendant's premises at or around June 2004 when you did your report? A. We were surveying all of those sites.

PROSECUTOR: Would your Honour direct the witness to answer my question?

HER HONOUR: Yes, there has been a question were there or were there not offensive odours being emitted from the farm in June 2004. That was the question.

WITNESS: We were measuring odours and getting concentrations of odour, and that was all part of this program. Whether they were offensive or not was a different issue.

PROSECUTOR: Q. You didn't know that one way or another? A. No.

Q. Would you mind going to page 8 of your report. Your use of the English language and mine may be a little different, but would you mind telling her Honour what you mean by the words, "The elimination of offensive odours from the farm had not occurred at this point in time"? A. Page 8?

Q. Page 8. A. Yes. The elimination had not occurred by that time.

Q. If the elimination had not occurred at that time it follows, does it not, that as at June 2004 offensive odours were still being emitted from the farm? A. Some offensive odours obviously.

Q. Including, can I suggest, vomit, cheese like smells? A. Not necessarily.

67 Mr Stephenson then gave this evidence: Q. Do you accept that, prior to November 2003 when PRP7 was implemented in part, the ponds had the capacity to produce vomit and cheese like odours? I think you agreed with that a little earlier. A. Yes.

Q. Do you agree with me that in June 2004 there was still old wastewater in the ponds or in a number of ponds because the system hadn't been fully commissioned? A. Yes.

Q. Do you accept that that wastewater had the capacity as at June 2004 to produce odours of a vomit like nature? A. If it was irrigated, yes.

Q. Well, you didn't - see, you put that qualification in just a couple of questions ago. When I first approached this subject you didn't? A. Right at the beginning.

Q. You said that the ponds had the capacity to produce this odour, but the system had changed in some way. So is your position now that the ponds didn't have the capacity but the irrigation system did? A. Yes.

68 Subsequently, further questions based on the June 2004 environmental audit were asked and answered as follows: Q…"As a result of these discussions the company prepared an Odour Management Plan including Pond Solids Removal addressing the above issues."

Now that suggests very much, do you agree, that removing the ponds' solids was part of odour management? A. That's correct.

"Since the 'old' wastewater is still being irrigated from the storage ponds, it is not possible to view the impact of the 'new' wastewater in relation to the number of complaints. It is envisaged that over the next 12 months, that all the 'old' wastewater would have been irrigated and the 'new' wastewater irrigated."

Now, do you agree with me that that very much suggests that at least at that point in time, June 2004, the presence of old wastewater and its irrigation over "the next 12 months", that very much suggests that at that date these premises had the capacity to produce offensive odours? A. In a reducing format.

69 Mr Stephenson agreed that he had not mentioned any potential for the paper mill to produce faecal odours in his report. With respect to the source of his knowledge that the paper mill could produce faecal odours, Mr Stephenson said that "paper mills, period, have a potential to produce faecal odours and that's something that I have been aware of for a long time". He ultimately identified his source of knowledge as follows: Q …Have you suggested anywhere at any time relevant to this case that APM was capable of producing a faecal odour? A. Anywhere any time, yes.

Q. Where? Where is it? A. But it's not that in that document.

Q. It's not in any document, is it? A. It's not in that document.

Q. It's not in any document, is it? A. Paper production and the faecal odour is referred to and it's at the Bomaderry mill, the Shoalhaven mill, and it has been detected there and the DEC officer, Mr Newman, has detected it there.

Q. In giving that answer you're relying, are you, on some records which were produced to the court on subpoena from Australian Paper Mills? A. I'm relying on the statement that Mr Newman made in 2002 where he detected a faecal odour.

70 Mr Stephenson was asked about the draft of his March 2006 report that identified the names Jeff Mann and Stan Winn (not Peter Stephenson) on the front cover, and referred to "our" throughout the text. Mr Stephenson denied that Mr Mann and Mr Winn had prepared the report and that he had merely signed off on it, and said that they were working on the report in conjunction. When asked why then his name did not appear on the draft, he said it was a typographical error. He said that the March 2006 report had been "prepared by myself in conjunction with my staff", and that he had been involved in every word of the draft. He said the opinions were his own and thus he did not think it important to disclose the involvement of Mr Mann and Mr Winn in the preparation of the report.

71 In the context of questions about how using (or not) an olfactometer could be relevant given the definition of "offensive odour" in the POEO Act, Mr Stephenson agreed that, in odour science, the offensiveness of an odour was determined by its hedonic tone (the degree of unpleasantness or pleasantness of an odour), and that this was a subjective measure.

72 When asked about the intensity of odours Mr Jamieson and Mr Newman smelt at the ponds, Mr Stephenson gave this evidence: Q. That raises another issue, might I suggest, and it is this. You said in your evidence a little earlier today that one of the things that was unusual was that these officers had experienced an odour with considerable intensity at the ponds. Can I suggest to you that it's unusual because common sense would indicate, generally speaking, that if they smelt an odour of that intensity around the ponds, the ponds was the likely source? A. Not if the plume was moving over the ponds at the time.

73 This evidence continued subsequently as follows: Q. But doesn't it make it even more unusual, if that be the case, that when officer Jamieson returned there in the afternoon, he could still smell it? A. Well it's a matter of whether - and I made mention of this earlier today - whether the odour was then travelling with officer Jamieson or whether the odour was travelling on that wind movement.

Q. I want you to assume for the moment that it was not travelling with officer Jamieson. On that assumption, the fact that it was smelt again later in the day when there had been, as you have indicated, some reasonably strong breezes, suggests very much, does it not, that the source of the odour was the ponds? A. Well depending on the width of that plume, the source of the odour was still that package of air that had travelled after the inversion broke up in the morning.

Q. But they come back in afternoon and it's still there. A. Well that plume is undispersed. It's still moving in the river valley.

Q. It's just pure happenstance, is it, that they happened to notice it and noticed that it was intense? A. If they're in the middle of the plume and the plume happens to be in the same place as they are, then they could notice that it was intense.

74 When asked what weight he had given to the material in those affidavits in considering how the odorous air mass had descended onto or blown over the ponds on 14 and 15 April 2004, Mr Stephenson said, "because that was the - it was the potential for a combination of sources." The evidence continued as follows: Q. The fact is, sir, is it not, that you didn't give it any weight at all? A. No, I did do. I gave it weight but I also considered other sources that would contribute on a still morning, a very still morning.

Q. Didn't that evidence suggest that the scenario that you have postulated is extremely unlikely? A. No, it's not extremely unlikely at all.

Q. In giving your evidence and in preparing your report did you take into account that the offensive odours were smelt by both Jamieson and Newman downwind of ponds 3 and 4 on 15 April but were not observed upwind of the ponds on that day? A. They - I observed that.

Q. And what weight, if any, did you give that evidence in coming to the conclusions which you did in your report? A. Some weight, but the way the air was moving, the plume of material could have come from the north-east or could have come from the south-east.

Q. But if they were standing upwind of the ponds at the time, or at some time during the day, or at various times during the day when they made their observations, doesn't that suggest to that you the likely source was in fact the ponds, if they had observed no stinking odours upwind? A. Well if - upwind at the first time they looked at the ponds--

Q. Yeah. A. --the way the wind was blowing, they would have been - if they were on the eastern side of the pond, then that mass of air was moving across the ponds from the south-east, or it was moving - later on in the afternoon it was moving across the ponds from the north-east.

Q. Maybe the commonsense that I'm trying to derive from this just doesn't exist, but if they stand downwind they smell this dreadful odour at a particular point, and they stand upwind, if it's coming from somewhere other than Shoalhaven Starches ponds, they ought to smell it there too? A. Well, unless it's pooled.

Q. Unless it's what? A. Unless it's pooled--

Q. What does that mean? A. --as in P-O-O-L-E-D, above that pond area - this is the air mass.

Q. Oh, I see. It just happened to be confined to that pond area, but it doesn't originate there? A. Well there's a situation where you can get pooling of air but - Hannigans Lane is the next westerly intersection point and there was no response from the people in Hannigans Lane that indicated that that odour was actually moving in that direction of the wind.

Q. What explanation, if any, would you like to give to the evidence that they could smell it downwind but not upwind of the ponds? A. Well their explanation is that it was coming from the ponds as a source.

Q. What's yours? A. Well my explanation is the one I just outlined.

Q. Pooling? A. It could have been from the ponds and it could have been pooling.

75 Ultimately, this exchange followed: Q . Well is your position now this, that you say to her Honour that you cannot exclude Shoalhaven Starches as being the possible source? A. It's a possible source, but there are a number of other sources which have a better characteristic.

76 Mr Todoroski swore two affidavits, one relating to the June 2004 report and one relating to the March 2006 report referred to above. Generally, Mr Todoroski said that parcels of odour-laden air could travel from a source to a receiver. The path of travel of the air parcel is primarily determined by weather conditions. In the absence of wind, an odour source will generally effuse odour into the surrounding air. Under stable atmospheric conditions, odour can persist, build up and travel long distances before becoming significantly mixed or diluted. This may create a significant body of air around a source that has a high odour concentration. Odour-laden air spreads out along its path of travel.

77 Mr Todoroski concluded that the June 2004 report and the defendant's complaint records (which I take to be a reference to the faxes sent by Mr Hill to the EPA) "do not realistically examine odour sources potentially causing the complaints because they do not consider the weather prevailing before the incident time for a sufficiently long period". Mr Todoroski reached similar conclusions about the March 2006 report - namely, that the March 2006 report did not "realistically examine odour sources that potentially caused the complaints because it does not consider the path that air reaching a receiver is likely to have taken in reaching the receiver". He observed that it was wrong to conclude that an odour at a receiver could not have come from a source because the wind was not blowing from the source to the receiver at the time or in a short period prior to the incident at the receiver, or on the basis of wind roses (used in the March 2006 report) without considering: - (i) whether the time of the wind roses may mask important details, (ii) the likely path of travel of the odour laden air, (iii) mixing and diffusion out from the path, and (iv) error inherent in data and arising from approximations and assumptions.

78 Mr Bliss's evidence comprised opinions about possible reasons for the ponds having produced the odours smelt by Mr Jamieson and Mr Newman at that location on 15 April 2004 (assuming the accuracy of their observations, and that the ponds were the source of the odours they smelt).

79 Mr Bliss's primary opinion was that the intensity and qualitative nature of the odours smelt by Mr Jamieson and Mr Newman when they observed the transfer of wastewater from pond 3 to pond 4 on 15 April 2004 indicated that the wastewater in either or both of those ponds had been subject to anaerobic biological action in the preceding period. This would have resulted in the formation of odorous materials in the wastewater. The volatile components in these would tend to have been released into the atmosphere above the ponds generally, but their emission would have been exacerbated by turbulence generated in the wastewater transfer operation itself.

80 Mr Bliss concluded that the major reason for the generation of the odorous materials would have been the failure to control some or all of the wastewater at the pH aim of 2.5 as stated in the defendant's acid protocol for the ponds. Mr Bliss considered that when the wastewater was discharged into pond 3, there would have been some disturbance to the solids layer, releasing into the pond liquid both bacteria and degradation products - which would have made it critical to control the pH to 2.5 as quickly and as consistently as possible. Once odorous material had formed in pond 3, the later addition of acid would not have affected the amount of odorous material already formed. The presence of odorous materials in pond 3, with its large surface area (approximately 0.4 hectares), would be expected to lead to significant odour emission. Odour emission would have been exacerbated by disturbance to the surface waters as occurred during the transfer operation to pond 4.

81 In his report in reply, Mr Bliss noted that according to the defendant's records pond 3 contained solids (5 to 6ML) from December 2003 up to 1 April 2004, with the single exception of 5 March, where the entry referred to "sludge removal". For this whole period, the defendant did not record pH values for pond 3. Hence, an inoculum of bacterial species could have been accumulating in the sludge layer during this period. If such growth occurred, it would be accompanied by the formation of unstable odorous products. Mixing induced by the addition of wastewater to pond 3 could have resulted in lifting some such organisms and by-products into the pond liquid layer, which could shorten the time for significant biological activity to occur and increase the unstable material in the pond liquid potentially available for generation of odour during the transfer from pond 3 to pond 4.

82 Mr Bliss observed that the response of a system to acid depended on a range of factors. He considered that the pH of the liquid and the solids may have been quite different and hence their subsequent behaviour and propensity to generate odorous materials may have also been different. Biological activity in the sludge could have been proceeding independently. The wastewater transfer could also stir up some of the solids and release odorous material and possibly also an inoculum of acclimatised bacteria. He also postulated that if the irrigation system was not properly flushed with clean water then anaerobic biological activity could have proceeded in the pipework for 8 days before the water was sent to storage on 14 April 2000.

83 From the nature of the odour described by Mr Jamieson and Mr Newman, Mr Bliss concluded that the cause of the odour was related to anaerobic biological action in either the accumulated solids in the ponds or wastewater in the recirculation system or both, exacerbated by the transfer process. He said that this would also be suggested by the apparent suddenness, severity and relatively short duration of the incident.

84 Professor Greenfield's report said that the relatively biodegradable nature and concentration of organic compounds in the defendant's wastewater streams implied that biological generation of odorous compounds, particularly under anaerobic conditions (absence of dissolved oxygen in the wastewater) was likely. The aim of the acid protocol was to control this biological activity, by reducing the pH to a low value (around 2.5) where relatively few micro-organisms could survive and even fewer grow. Because of the relatively high concentration of biodegradable organic compounds entering the ponds in the wastewater streams and because of the relatively low mixing energy levels applied to the ponds, the ponds were likely to become anaerobic and encourage the growth and activity of organisms which could survive in the absence of dissolved oxygen (anaerobic micro-organisms or anaerobes). These organisms were well known for their ability to generate odorous compounds, which, in an uncovered pond, would be released to the atmosphere. Hence, a prime goal of the acid protocol was to maintain the levels and activity of anaerobes at sufficiently low levels that odour generation was minimised.

85 The defendant's actual method of controlling pH in the ponds was relatively unsophisticated in that it involved adding acid to the ponds, waiting to allow the acid to mix and re-testing the pH. It was virtually impossible to calculate precisely how much acid should be added to each pond. He observed that was that there was nothing particularly significant about pH 2.5 or 3 in a biological sense, and that neither 2.5 nor 3 represent a "biological break point" below which organisms cannot survive and above which they will grow readily.

86 The primary conclusions in Professor Greenfield's report were that: - (i) the large surface area of the ponds implied that any odorous compounds would be released to the atmosphere which is a feature of all uncovered pond wastewater treatment systems, (ii) the pH in the ponds was controlled to low values to reduce odour generation, (iii) the pH could be controlled over a small range but not necessarily to a precise value, and (iv) unless the pH of ponds 3 and 4 was significantly above pH 3.5 for some time, it is not likely that any odour which may have been associated with those ponds on 14 and 15 April 200 was the result of recent pH rises. It was also unlikely that such odour generation would have ceased as suddenly as it appears to have. Professor Greenfield noted that he was unaware of the detailed history of the wastewater being transferred from pond 3 to pond 4 and thus could not comment specifically on the presence or absence of dissolved odorous compounds in this wastewater.

87 The defendant conceded that it was the occupier of premises at which scheduled activities were carried on. So much was plain from the licence, the s 261 certificate, and the evidence about the defendant's operations generally (including from Mr Thompson, the defendant's manager of the environmental farm).

88 Accordingly, I am satisfied beyond reasonable doubt that the defendant (between 26 March 2004 and 1 July 2004) was the occupier of the premises to which licence 883 applied, being premises at which scheduled activities were carried on under authority conferred by that licence. Those premises included the environmental farm, on which the ponds were located.

89 As Mr Stephenson's evidence addressed numerous issues, it is appropriate that I make my findings with respect to his evidence overall at this point. Given the nature of that evidence, I must confront the submissions the prosecutor made about Mr Stephenson's evidence - in effect, that it was wholly unreliable, being a "partisan tract" ( Cala Homes (South) Limited and Others v Alfred McAlpine Homes East Limited [1995] FSR 818 at 844 per Laddie J), by an expert who had paid "lip service" to his obligations under the Expert Witness Code of Conduct.

90 So many aspects of Mr Stephenson's oral evidence in cross-examination caused me such significant disquiet and cast such doubt on the reliability of the whole of his oral evidence in chief and written evidence, that I have acceded to the prosecutor's submission that I should not accept any of Mr Stephenson's evidence except to the extent that it is corroborated by other evidence and then only as to matters of fact arising out of Mr Stephenson's lengthy involvement with the defendant. It is appropriate that I identify my reasons for this conclusion. Many of my reasons relate to aspects of the cross-examination to which I have referred above.

91 In his evidence in chief Mr Stephenson gave opinions, absent any qualification, that the ponds (as at April 2004) were incapable of producing concentrated dog faeces, vomit, off-cheese or sewage odours. He suggested that this was a consequence of changes to the effluent stream made in 2003. None of this (potentially critical) information appeared in the report to the Court (March 2006) or in the incident report (June 2004). Mr Stephenson's evidence that there was no inconsistency between the June 2004 report (which said that 23 of the 27 odour complaints could be attributed to a number of activities including the defendant's activities) and these opinions (that the ponds were incapable of producing these odours in April 2004) lacked cogency. His further acceptance that, in hindsight, his June 2004 report should have said 23 of the 27 odour complaints could be attributed to a number of activities including the defendant's activities "with the exception of vomit, off-cheese and dog faeces" odours appeared gratuitous.

92 The June 2004 environmental audit, also prepared by Mr Stephenson's company, disclosed that the "old" effluent was the source of the pond solids then in existence, and that no "new" effluent had been irrigated as at June 2004. "New" effluent was all stored in pond 5 only. I infer this was the source of the stale, mouldy smell perceived by Mr Jamieson and Mr Newman, which had no effect on them. The audit also recorded that the defendant had proposed an odour management plan that sought to address the perceived odour issues (amongst other things) by irrigating all the "old" effluent, and removing the pond solids as soon as possible. In these circumstances, Mr Stephenson's evidence in chief that the composition of the effluent had altered in late 2003 (so as to render the ponds incapable of producing certain odours in April 2004) was also inconsistent with the information in the June 2004 audit that his company produced.

93 The manner in which this evidence came forward (that is, in oral evidence in chief and not in any earlier written document), its inconsistency with the June 2004 incident report and June 2004 audit report, and the lack of cogency of Mr Stephenson's responses to questions about these matters, are sufficient for me to reject these opinions, without reference to other evidence in this matter. I am satisfied that Mr Stephenson was willing to express unqualified opinions in his evidence in chief about important matters, without having checked readily available facts relevant to (indeed, inconsistent with) those opinions.

94 Mr Stephenson's answers to questions about the June 2004 environmental audit were unsatisfactory. I formed the strong impression that Mr Stephenson wished to avoid any suggestion that the pond solids or pond liquids as at April 2004 were capable of producing unpleasant odours, when reference to the June 2004 environmental audit alone (that his company prepared) would ineluctably lead to the contrary conclusion. I found Mr Stephenson's answers about this issue evasive, including what might have been his final opinion (and, as the position seemed to alter, it was difficult to tell) that the ponds did not have the capacity to cause these odours but the irrigation system did (at some time).

95 Mr Stephenson did not disclose in his evidence the assistance of Mr Mann or Mr Winn (as I understand, employees of his company) in the preparation of the March 2006 report. Under the Code of Conduct, an expert must disclose "any examinations, tests or other investigations on which he or she has relied and identify, and give details of the qualifications of, the person who carried them out". Mr Stephenson said that the opinions in the March 2006 report were his own, and that he had been involved in every part of the report. If that was so, it did not alter his obligation to disclose the qualifications of any person involved in carrying out examinations, tests or other investigations on which he relied.

96 I must consider this issue together with the mistake made by Mr Stephenson about the information that he reviewed before the March 2006 report was prepared. Until the prosecutor directed him to page 10 of that report, Mr Stephenson believed that he had not reviewed the affidavits of Mr Jamieson and Mr Newman when that report was prepared. If such an error had occurred in isolation, I would consider it immaterial. However, it did not. The mistake occurred in a context where the draft report did not identify Mr Stephenson as an author, but identified Mr Mann and Mr Winn as the authors (explained to be a typographical error by Mr Stephenson), and where I found Mr Stephenson's answers to questions about how he dealt with these affidavits in forming his opinions unconvincing.

97 When I consider all of these matters, I infer that Mr Mann and Mr Winn carried out most of the work in preparing the March 2006 report. For example, I infer that Mr Mann and Mr Winn prepared all of the wind roses and diagrams on which the substantive opinions in that report relied. I draw this inference from the identification of Mr Mann and Mr Winn as the authors of the report on the draft version of that report, the references throughout that draft to "our" opinions, the wind roses being described in the report as having been prepared by "my company" (not by Mr Stephenson), and the fact that Mr Mann prepared Exhibit 17 (albeit checked by Mr Stephenson). This is important because the wind roses were critical to the conclusions expressed in the report, and many expert opinions underlay and were embedded in the wind roses themselves. While Mr Stephenson said the opinions in the report were his opinions, I infer that he embraced those opinions as his own based on the work of Mr Mann and Mr Winn. Mr Mann and Mr Winn did not give evidence before me, their qualifications have not been proved, and they may or may not have been aware of the obligations imposed on experts by the Code of Conduct. In this case, given Mr Stephenson's evidence as a whole, I am not able to conclude with any real confidence that Mr Stephenson's involvement in the process of the preparation of the March 2006 report was sufficient to enable him appropriately to embrace the opinions in that report as his own opinions. That conclusion applies also to his oral evidence based on the March 2006 report.

98 Mr Stephenson's evidence in cross-examination about the paper mill having previously generated a dog faeces odour (or as having the capacity to do so) was unsatisfactory. He appeared reluctant to identify the source of his knowledge. I infer that his source of knowledge was limited to an email of a third party about a representation Mr Newman was alleged to have made.

99 Mr Stephenson's answers to questions about the capacity of the defendant's environmental farm operations to produce offensive odours generally involved evasion and obfuscation. His evidence that the environmental farm could produce odours only if operational procedures were not followed (in contrast to all other potential sources to which he did not ascribe that qualification) was inconsistent with the June 2004 audit, and the evidence of both Mr Thompson and Professor Greenfield (let alone Mr Jamieson and Mr Newman).

100 The defendant submitted that Mr Stephenson was a biochemist, aware of the chemical make-up of the wastewater, and that he was the only person qualified to give opinions about the odours which the wastewater could generate. I disagree. I do not accept the defendant's submission that the defendant's ponds were incapable of producing the odours smelt by Mr Jamieson and Mr Newman in the vicinity of the ponds on 15 April 2004. For the reasons given above I do not accept Mr Stephenson's opinions as reliable expert opinions. In any event, the act of smelling wastewater and perceiving an odour does not require a degree in biochemistry.

101 I deal with other specific aspects of Mr Stephenson's evidence below, but in the context of the conclusion I have reached about the general unreliability of his evidence.

102 The defendant submitted that Mr Jamieson and Mr Newman exaggerated their observations about the odours that they smelt, and that this was a rational hypothesis consistent with its innocence. The defendant relied on the evidence of Mr Lawer (who had not smelt any unusual odours when in the vicinity of the ponds on the morning of 15 April 2004), Mr Thompson (who had not smelt any unusual odours on 14 April 2004 and who carried out some investigations on 15 April 2004 and had not smelt odours), the facsimiles from Mr Hill which formed part of the defendant's incident report, and the absence of any physical reaction to odours smelt by the residents who gave evidence, to support this submission.

103 I consider this submission depends on my conclusions about the reliability of Mr Jamieson and Mr Newman as witnesses, having regard to their evidence overall. Mr Jamieson and Mr Newman were truthful, frank, open and credible witnesses. They readily accepted when their recollections were imperfect. They did not cavil with propositions put to them critical of aspects of their investigation on and after 15 April 2004 (for example, not putting the wastewater samples on ice and ensuring their testing as soon as possible). I am satisfied that their evidence was a truthful and reliable account of the odours they smelt on 15 April 2004, where they smelt those odours, when they smelt those odours, how they perceived those odours, and how they reacted to those odours. I do not accept that either Mr Jamieson or Mr Newman exaggerated any aspect of their observations about these matters. The evidence relied on by the defendant does not lead me to a contrary conclusion. I address that evidence below, both for the purpose of this submission and generally.

104 Mr Lawer attended the defendant's premises to deliver acid, not to inspect the ponds. I accept Mr Lawer may have observed and recorded odour if he considered it relevant to the safety of making deliveries to the premises, and to the extent that he was able to do so (given that he wore protective equipment including a splash mask, and was routinely engaged in acid deliveries which might have affected his sense of smell). I do not accept that Mr Lawer would otherwise have taken it upon himself to make general observations about odour on the defendant's premises. Moreover, Mr Lawer had never smelt any unpleasant odours while on the defendant's premises, which is inconsistent not only with the evidence of Mr Jamieson and Mr Newman, but also with the evidence of Mr Thompson who said that in hot weather the odour from the ponds was stronger and unpleasant (indeed, sufficiently strong for him to have smelt that odour outside the defendant's premises). In these circumstances, the fact (which I accept) that Mr Lawer did not smell an odour when he made the acid delivery early in the morning of 15 April 2004 does not lend weight to the submission that the evidence of Mr Jamieson and Mr Newman was the result of exaggeration or otherwise unreliable.

105 Mr Thompson was in routine contact with the operations on the defendant's environmental farm. Although I consider that Mr Thompson gave reliable evidence about the defendant's operations generally, cross-examination revealed that the ponds could generate an unpleasant odour particularly in hot weather, of sufficient strength to be smelt outside the premises. It also revealed that, in the 12 months leading up to June 2004, the defendant spent some $40 million in an endeavour to adjust the content of its wastewater, and that the "old" wastewater had a stronger odour than the "new" wastewater. Hence, although I accept Mr Thompson's evidence that he did not smell anything out of the ordinary on 14 April 2004 (when he was at the environmental farm, and when he drove across the bridge and then back to Meroo Road north of Bomaderry) and that he did not smell anything out of the ordinary on 15 April 2004 (when he drove to the south of the River at Riverview Road and thereabouts), I do not consider that fact casts any doubt on the evidence given by Mr Jamieson and Mr Newman.

106 Mr Hill's facsimiles to the EPA formed part of the defendant's incident report. The prosecutor relied on the incident report and records of interview as containing various admissions. The defendant submitted that the incident report and the records of interview also contained exculpatory material, on which the defendant was able to rely ( R v Duncan (1981) 73 Cr App Rep 359 at 365 and R v Dat Quoc Ho (2002) 130 A Crim R 545 at [30] - [31]). This principle was affirmed in Allied Interstate (Qld) Pty Limited v Barnes (1968) 118 CLR 581, at 585, 594, and in Mule v R (2005) 221 ALR 85. I note that these decisions confirm that the weight of out of court statements (including exculpatory statements) is a matter for the trier of fact.

107 The defendant relied on Mr Hill's facsimiles to support the inference that Mr Hill had carried out investigations on 14 and 15 April 2004, and identified that the odour complaints could not have been, or were unlikely to have been, generated by the defendant's activities, and that other odour sources were responsible. The records of interview with various employees of the defendant included an interview with Mr Freeman, an irrigation technician who worked for the defendant on the environmental farm who said he did not smell anything on 15 April 2004. Mr Smith, also an irrigation technician who worked for the defendant on the environmental farm, was not asked in his interview about what he smelt on 15 April 2004.

108 Mr Hill did not give evidence. The information contained in his facsimiles was not tested (unlike the evidence of Mr Jamieson and Mr Newman). The facsimiles contain a series of self-serving statements. The basis for those statements (that is, what investigations were actually carried out and by whom) is not apparent from the face of the facsimiles. In these circumstances, it would be inappropriate to give those statements weight. As such, nothing in Mr Hill's facsimiles gives rise to any doubt in my mind about the evidence of Mr Jamieson and Mr Newman. Mr Freeman and Mr Smith also did not give evidence. Mr Freeman, like Mr Thompson, was routinely on the defendant's environmental farm. For the same reasons, nothing in the records of interview gives rise to any doubt in my mind about the evidence of Mr Jamieson and Mr Newman.

109 The evidence from people who lived or worked in the locality disclosed a variety of reactions to the odours that (I accept) they smelt on 14 and 15 April 2004. I do not accept the defendant's characterisations of the residents' reaction as markedly different from Mr Jamieson and Mr Newman. Two residents described the smell as having been so strong it woke them up (Ms Collingridge and Mr Ash). Four residents referred to the smell making them feel a bit nauseous, nauseous or sick (Mr Marshall, Ms Davidson, Ms O'Neill, and Ms Medcalf). Five described strong reactions to the odour (Ms Collingridge said it was so strong she could taste it, Ms Walker kept the children in the car at the bus stop to avoid the smell, Ms Medcalf said the smell hit the back of her nostrils, Mr Gordon said the smell was a "painful" smell, that bit into his sinuses, and Ms Anstiss said the smell caused her to walk with a handkerchief over her mouth and nose). Four closed their houses up to keep the smell out (Ms Walker, Ms Taylor, Mr Williamson, and Mr Mawer). I accept this evidence. I do not see these reactions as inconsistent with those of Mr Jamieson and Mr Newman. Accordingly, nothing in this evidence causes me to infer that Mr Jamieson and Mr Newman gave exaggerated accounts of their observations on 15 April 2004. If anything, this evidence corroborated the accounts given by Mr Jamieson and Mr Newman of the odours they smelt.

110 Mr Jamieson and Mr Newman were cross-examined about many issues that potentially reflected on the reliability of their accounts (for example, not having requested that the pumping from pond 3 to pond 4 cease, not having asked any employee of the defendant or any other person to verify the smell, not having mentioned the weather station data they downloaded from the defendant's computer at the shed, and not having followed steps set out in a document styled "Starches Complaints Protocol" - a document which I infer had no formal status within the EPA in any event). I do not propose to address those matters individually (or the many others about which they were cross-examined). Having heard the whole of their evidence, none of the matters put to them in cross-examination cause me to infer that they did other than give truthful and reliable evidence about their activities and observations on 15 April 2004 (and, insofar as relevant, thereafter).

111 I accept that the pH test results obtained by Mr Jamieson from the pH test strips and the pH meter on-site, and the results obtained from the laboratory with respect to the samples obtained by Mr Jamieson and Mr Newman, were unlikely to be reliable. Accordingly, I do not give weight to any of those results in the balance of my consideration. Insofar as relevant to the expert evidence of Mr Bliss and Professor Greenfield, I do not accept that the pH levels of liquid in the defendant's ponds on 14 or 15 April 2004 has been established by reason of the pH strips, Mr Jamieson's use of the pH meter on-site or the samples taken on 15 April 2004 and later analysed. This conclusion does not affect the defendant's records, which also disclosed pH test results. Pond 3 had no results in the period immediately before 14 April 2004 other than 8, 11 and 13 April 2004 (pH 3.32, 3.15 and 3.2 respectively), presumably because in the earlier period from December 2003, pond 3 contained solids or sludge. Pond 4 showed results ranging from pH 2.13 (on 10 March 2004) to pH 2.75 (on 8 April 2004).

Capacity of activities on environmental farm to cause odours

112 Based on the evidence of Mr Thompson (primarily), but also Mr Bliss and Professor Greenfield, I find as follows. (1) The defendant's activities on and leading up to 14 and 15 April 2004 involved the production of a range of products at its factory premises from grain, flour and mill feed. The processes created a wastewater stream containing high levels of biodegradable solids. The wastewater would leave the factory premises at a pH of around 3.5 to 3.8. In dry weather, the wastewater would be transferred to the main effluent irrigation tank, which had a capacity of about 600,000 litres. To enable that wastewater to be irrigated, the defendant would make a lime slurry to raise the pH of the fresh wastewater in the effluent tank. This process would raise the pH to about 7 to 8. That wastewater would then be pumped to various lines, which enabled the systematic irrigation of the wastewater onto parts of the defendant's environmental farm.

(2) As shown on the various plans and maps tendered, the environmental farm was a large area (just under 1000 hectares) located north of Bolong Road and east of Bomaderry. About 500 hectares of the environmental farm was used for the irrigation of wastewater.

(3) Six ponds were located on the environmental farm, just north of Bolong Road. The ponds were large, with large surface areas. At all material times, the ponds had the following capacity - pond 1 (11 megalitres), pond 2 (11 megalitres), pond 3 (33 megalitres), pond 4 (125 megalitres), pond 5 (250 megalitres), and pond 6 (500 megalitres). The ponds were uncovered.

(4) The purpose of the ponds was to store wastewater from the defendant's factory. About half the daily volume of wastewater from the factory would be stored in the ponds overnight. Otherwise, the ponds were used to store wastewater when rain prevented the wastewater from being irrigated onto the environmental farm.

(5) Generally, ponds 1, 2 and 3 were used as settling ponds for wastewater straight from the factory. The solids in the wastewater would settle and created a layer of solids or sludge in the bottom of those ponds. After the wastewater had settled in ponds 1, 2 and /or 3, the wastewater could be transferred (by pumping) to pond 4. A little more settling would occur in pond 4. The wastewater could also be transferred to ponds 5 and 6. The wastewater in ponds 5 and 6 would thus have fewer solids than the wastewater in ponds 1, 2 or 3.

(6) The relatively high concentration of biodegradable organic compounds entering the ponds in the wastewater streams and the relatively low mixing energy levels applied to the ponds, meant that the ponds were likely to become anaerobic, which would enable the growth and activity of organisms which can survive in the absence of dissolved oxygen (anaerobic micro-organisms or anaerobes). These organisms can generate odorous compounds, which, in an uncovered pond, will be released to the atmosphere. The defendant's system to reduce the potential for the production of odours from the storage of wastewater was to add sulphuric acid to the wastewater in the ponds. The purpose of adding acid was to lower the pH of the wastewater by acidification. Low pH controls biological activity by two means: - (i) destruction and growth prevention of a large number of non-acid tolerant organisms, and (ii) reduced growth rates of organisms. This system was unsophisticated, because it depended on guesswork about the volume of acid necessary to lower the pH to the target range. As such, it was important for the pH to be tested after acid had been added.

113 From the June 2004 environmental audit prepared by Mr Stephenson's company on behalf of the defendant, Mr Thompson's evidence, and the defendant's records relating to the ponds (storage ponds daily records), I am satisfied that from about late 2003, the defendant commenced commissioning of a new stillage recovery process, one objective of which was to reduce the suspended and soluble solids in its wastewater streams and reduce the potential for odour to be generated from the irrigation of wastewater and storage of wastewater in the ponds on the environmental farm. The wastewater from that newly commissioned plant had not been irrigated as at June 2004, but was stored in pond 5. Otherwise, the wastewater and solids within the ponds in the period December 2003 to April 2004 (inclusive) was not produced by the new stillage recovery process but, rather, by the defendant's processes in place prior to the commissioning of the new stillage recovery process. From at least 17 December 2003 to 24 March 2004, pond 3 contained solids or sludge and did not have wastewater added to it. Within that same period, acid was not added to pond 3, as acid could not be effectively mixed with the solids or sludge. Pond 3, at the commencement of this period, had at least 20 megalitres of solids in it (about two thirds of the total pond capacity), which the defendant progressively removed and reduced to about 5 megalitres of solids by March 2004.

114 As noted above, insofar as Mr Stephenson gave evidence that the chemical composition of the wastewater produced by the defendant's effluent had altered in or about late 2003 (so as to eliminate the potential that wastewater had to generate odours when stored or irrigated), I do not accept that evidence.

115 I accept that in the period December 2003 to June 2004, the defendant's activities on its environmental farm were capable of producing a range of odours in the ordinary course of its operations, a number of which could be strong and unpleasant. I do not accept Mr Stephenson's evidence to the contrary for the reasons I have given above. Based on the evidence of Mr Jamieson and Mr Newman (and Mr Thompson, albeit to a lesser extent) I accept that these witnesses smelt odours from the defendant's ponds while at those ponds and that, thereby, the ponds were capable of emitting odours. Those odours varied in intensity but could be very strong, sharp and acidic, with characteristics which could be described as of human vomit and off-cheese, sufficient to make a person uncomfortable (Mr Jamieson). Those odours could also be described as vinegary, very sharp, very strong, with elements of vomit or off-cheese, and foul characteristics which were unpleasant even when mild and sufficient to make a person feel like vomiting (Mr Newman).

116 I consider that the evidence of Mr Bliss and Professor Greenfield generally supported the observations of Mr Jamieson and Mr Newman (and Mr Thompson) with respect to the capacity of the defendant's wastewater to emit odours, whether irrigated onto the surface of the environmental farm or stored in the ponds. Both Mr Bliss and Professor Greenfield gave evidence that biodegradable material in the defendant's wastewater was capable of causing biological generation of odorous compounds, particularly under anaerobic conditions. Both gave evidence that the aim of the defendant's acid protocol was to maintain the levels and activity of anaerobes at sufficiently low levels so "that odour generation is minimised" (Professor Greenfield) or for "controlling odour generation" (Mr Bliss). This evidence was consistent with the stated purpose of the acid protocol - "reducing odour generation". This purpose must be considered in a context where both Mr Jamieson and Mr Thompson gave evidence to the effect that, in their experience, there was always an odour at the ponds (an odour which Mr Thompson found stronger in hot weather and not pleasant, and which made Mr Jamieson feel uncomfortable, depending on its intensity). In other words, all of the evidence (excluding that of Mr Stephenson) pointed to the capacity of the ponds to emit strong and unpleasant odours.

117 I accept that premises other than the defendant's premises in the Bomaderry area (a number of which were also on Bolong Road or otherwise in proximity to the defendant's environmental farm) were capable of giving rise to odours in the area, including unpleasant odours. I accept that Mr Jamieson had smelt odours prior to 14 and 15 April 2004 from other premises as he described. I accept that Mr Newman had previously smelt a sewage type odour from the paper mill, near the primary clarifier tank on that premises. I do not accept that Mr Newman previously smelt a dog faeces odour at those premises.

118 I accept Mr Todoroski's opinion that the Dairy Farmers factory possibly could cause off-cheese and vomit odours, and the paper mill possibly could cause dog faeces and vomit odours. Similarly, I accept Mr Bliss's evidence that the paper mill possibly could cause dog faeces, vomit and grease trap odours and the Dairy Farmers factory possibly could cause vomit and grease trap odours. Those opinions must be considered in the context that neither Mr Todoroski nor Mr Bliss suggested that they had smelt such odours from these particular premises, but were prepared to acknowledge the possibility that these activities might generate such odours. Mr Jamieson and Mr Newman had also not smelt such odours from these premises.

119 Mr Stephenson referred to certain other potential odour sources in the locality (in his report of March 2006, his oral evidence, and the earlier report of June 2004). Those sources were Eaton's farm, Schofield's farm, Muller's farm, farms generally and silage on farms, a vegetable farm north of Terara Road, Abernethy's Creek if there was an overflow from the Bomaderry sewage treatment plant, and the local saleyards located on Moss Vale Road (provided the weather conditions were right). My general observations above about the unreliability of Mr Stephenson's evidence in this matter apply to his identification of other potential odour sources. In addition, Muller's farm and farms generally (other than the vegetable farm), the local saleyards and Abernethy's Creek were not identified as potential odour sources on Figure 4-1 in either the March 2006 report or the June 2004 report. In his oral evidence, when asked to identify potential odour sources, Mr Stephenson did not mention the local saleyards. I deal with the issue of possible alternative odour sources further below, in the context of the investigation of those sources by Mr Jamieson and Mr Newman on 15 April 2004.

120 From Mr Thompson's evidence, the defendant's storage ponds daily records, environmental farm 24 hour reports, the June 2004 incident report and other computer records, I accept that the defendant ceased irrigating wastewater onto the environmental farm on 4 April 2004 when it started raining. The defendant did not irrigate wastewater on 5 April 2004, due to rain. Between 4 and 6 April 2004, wastewater, to which lime had been added to raise the pH in anticipation of irrigation, was recirculated within the lines. This recirculated wastewater was pumped to pond 3, which was described as "filling" on 8 and 11 April 2004 (that is, filling with wastewater). The lines were flushed with fresh water after the recirculated wastewater was pumped to pond 3. The defendant did not irrigate wastewater between its cessation on 4 April 2004 and the morning of 15 April 2004. Instead, the wastewater from the defendant's factory was pumped in this period to pond 1 and also pond 3 (which had previously had only solids in it since some time in December 2003). In anticipation of irrigation commencing on 15 April 2004, wastewater was pumped from pond 6 to the main effluent tank and lime added to raise the pH to enable irrigation. The defendant commenced irrigating the wastewater on 15 April 2004 at about 7.00am. I also accept that the defendant was pumping wastewater from pond 3 to pond 4 on 15 April 2004. That pumping caused an up-welling in the surface of the effluent in pond 4.

121 I am satisfied beyond reasonable doubt that Mr Jamieson and Mr Newman smelt odours at the ponds on 15 April 2004 which affected them in the circumstances and as they described.

122 I accept that Mr Jamieson on his first inspection of the ponds on 15 April 2004 felt a slight breeze from the east when he arrived. When between ponds 3 and 4 and overwhelmed by the terrible odour (vomit, off-cheese and dog faeces), he dropped blades of grass, felt the wind in his face, moved in and out of the "zone of influence of this odour" and determined by these methods that he was downwind of the up-welling in pond 4. When between ponds 1 and 6, he saw a pipe spraying mist and it was being blown to the east. On the south-west corner of pond 1, when smelling the terrible odour again, he dropped blades of grass and determined by these methods that he was downwind of the up-welling in pond 4. I also accept that Mr Newman, on his first inspection of the ponds on 15 April 2004 and when near the up-welling in pond 4, smelt the very strong odour that made him gag, and which he described as concentrated dog faeces. He threw blades of grass and turned his face into the breeze, and determined by these methods that the wind was a light easterly with southern components. When between ponds 3 and 4 and smelling the same odour, he threw blades of grass and determined that he was downwind of the up-welling in pond 4. When near pond 1 and smelling the same odour, he determined that he was directly downwind of the up-welling in pond 4.

123 I accept that when Mr Newman returned to the ponds in the mid-afternoon, and smelt the same odour while on the western edge of pond 4, he walked back and forth and turned into the wind, and determined he was downwind of the up-welling in pond 4. When Mr Jamieson returned to the ponds late in the afternoon, and smelt the much less intense human vomit and off-cheese odours, he determined that the wind was generally from the east and that he was downwind of pond 4. Further, neither smelt the odour with the dog faeces components to it other than in locations that they determined were downwind of the up-welling in pond 4. I address the determination of wind directions by Mr Jamieson and Mr Newman below, in the context of my findings about the source of the odours they smelt.

124 I am satisfied beyond reasonable doubt that when Mr Jamieson and Mr Newman were together at the ponds, they smelt the same odours, even though they perceived and/or described them somewhat differently.

125 I have taken into account the evidence that Mr Jamieson made a note on 15 April 2004 that he smelt a kind of grease trap odour at the time that he smelt what he called in his note (read in context) the "pond odour" (that is, vomit and off-cheese) and the "dog crap" odour. I do not consider that affects the reliability of his observations about what he smelt at the ponds and what he smelt elsewhere (I address what he and Mr Newman smelt elsewhere below).

126 It is now appropriate for me to deal with the source of the odours smelt by Mr Jamieson and Mr Newman at the ponds on 15 April 2004, as described above. In common with my findings about the odours Mr Jamieson and Mr Newman smelt at the ponds, the standard that I must apply to this finding is that of beyond reasonable doubt (given my identification of the essential elements of the offence).

127 I address the evidence of Mr Bliss and Professor Greenfield in the context of this issue, because their evidence related to the potential for the ponds to have caused odours of the character and duration of those perceived by Mr Jamieson and Mr Newman, and the mechanisms by which the ponds might have caused such odours, or were unlikely to have caused such odours. Hence, their evidence is relevant to my assessment of this issue. It is also convenient to deal here with certain issues raised by Mr Stephenson and relied on by the defendant, notwithstanding the general conclusion which I have reached that Mr Stephenson's evidence should not be accepted except where consistent with the evidence of other witnesses, and then with respect only to his knowledge of the defendant's activities.

Mr Stephenson on investigation by Mr Jamieson and Mr Newman

128 Mr Stephenson said that Mr Jamieson and Mr Newman should have used an odour wheel to assist them (and the people subsequently interviewed) to describe the odours they experienced. Mr Stephenson considered that laypeople (like Mr Jamieson and Mr Newman for this purpose) did not have sufficient vocabulary power to describe odours in a manner that avoided inappropriately grouping different odours, thereby incorrectly identifying the source of the odour. I do not accept that opinion. First, Mr Stephenson did not point to any particular example of inappropriate grouping of odour descriptions by witnesses in this matter. Secondly, none of the witnesses appeared to me to have any difficulty describing the odours they smelt. The fact that use was not made of an odour wheel does not affect the reliability of the evidence of Mr Jamieson, Mr Newman, or the other laypeople about odours smelt.

129 Mr Stephenson said that Mr Jamieson and Mr Newman should have used a field olfactometer to test the concentrations of odours that they experienced. I disagree. The definition of "offensive odour", insofar as relevant, involves unreasonable interference (or likely unreasonable interference) with the comfort and repose of a person outside the premises. This is a subjective measure.

130 Mr Stephenson said that Mr Jamieson and Mr Newman should have neutralised their sense of smell in the field, which can be done by breathing through equipment that purifies air. The defendant submitted that because they did not do so they might have biased their sense of smell, making their evidence about they smells they experienced unreliable. Mr Jamieson and Mr Newman referred in their evidence to a range of odours they smelt throughout 15 April 2004, in different locations and at different times, as well as locations where they did not smell any odours. I do not accept that they biased their sense of smell. As their evidence shows, they were able throughout the day to smell and not smell different odours, at different strengths. This evidence, which I accept, is inconsistent with the suggestion that they biased their sense of smell. Similarly, I do not accept any suggestion (given the definition of "offensive odour") that special training, knowledge or skill is required to identify an offensive odour and its source.

131 Mr Stephenson said that Mr Jamieson and Mr Newman should have used a hand held anemometer and compass to determine wind directions and strengths at the various locations they visited on 15 April 2004. I infer from their evidence that Mr Jamieson and Mr Newman were both very familiar with the Bomaderry and Nowra area. Mr Newman specifically referred to his familiarity with the orientation of the ponds. I do not accept that they needed to have a compass with them on 15 April 2004 to be able to give the type of evidence they gave evidence about whether they were on the north, south, east or west bank of a pond, or walking or driving generally in one direction or another. The defendant tendered an aerial photograph with a compass marked on it, which was generally consistent with the directions referred to by Mr Jamieson and Mr Newman in their evidence. A layperson is also capable of making the type of general observations of wind strength and direction which Mr Jamieson and Mr Newman made, absent any particular equipment (for example, by the various methods used by Mr Jamieson and Mr Newman on 15 April 2004). I do not accept that the fact that Mr Jamieson and Mr Newman did not use a hand held anemometer and compass to determine wind directions and strengths of the various locations they visited on 15 April 2004 undermines the reliability of their observations. The relevant question is whether those observations were suitable (or not) for the purpose to which they were put by Mr Jamieson and Mr Newman (that is, to assist them in identifying the source of the odours). I am satisfied they were suitable for the purpose to which these observations were put by Mr Jamieson and Mr Newman - namely, identifying that they were downwind and upwind of the up-welling in pond 4 when they each smelt the terrible odour with the dog faeces component, and generally identifying wind direction in the other locations they inspected on 15 April 2004.

132 Mr Jamieson and Mr Newman were both cross-examined about the inadequacies in their obtaining of samples from the ponds for the purpose of determining pond pH. Mr Jamieson and Mr Newman readily conceded these inadequacies. I am not able to make a finding as to the precise pH of ponds 3 or 4 on 14 or 15 April 2004, although the defendant's own tests (as noted) show pH readings of 3.2, 3.15, and 3.2 in pond 3 (on 8, 11 and 13 April 2004, with acid added to pond 3 on 13 April 2004), and 2.75, 2.65, and 2.70 in pond 4 (on the same dates). Professor Greenfield said pH 2.5 and 3 did not "represent a biological break-point below which organisms cannot survive and above which they will grow readily". He also said that calculating precisely how much acid should be added to reach a particular value was virtually impossible and that, as the mixing energy was low in all of the defendant's ponds, the pH could not be considered as precise, and there would always be some pH distribution around a particular value. I accept this evidence of Professor Greenfield. This opinion, as it turned out, reflected the evidence given by Mr Thompson that the amount of acid added to the ponds was indeed a "guesstimate", based on experience. The purpose of testing pH every second day (which did not occur according to Mr Thompson) was to gauge whether the amounts of acid added were achieving the target pH range.

133 Having regard to this evidence, and the evidence of Mr Jamieson and Mr Thompson that they always smelt an odour at the ponds, I do not accept the defendant's submission that the absence of a precise pH value of the liquids in ponds 3 and 4 on 14 and 15 April 2004 undermines the reliability of Mr Jamieson's and Mr Newman's observations about what they smelt. On the evidence, I have no doubt that the pH of the pond liquid may have been within the target range and yet that liquid may nevertheless have emitted strong and unpleasant odours, particularly in hot weather. 15 April 2004 was an unseasonably hot day according to many sources of evidence. Moreover, as Mr Todoroski said, in still conditions, a large and intense odour plume could have been generated in the air around the ponds (as Mr Bliss said) by effusion of the odorous compounds from the pond surface. The meteorological data consistently shows still conditions overnight in the relevant period.

134 Mr Jamieson was questioned about the absence of any microbial testing of the liquids and sludge in ponds 3 and 4 to measure organisms. I accept that I do not know about the existence, type, number or level of any organisms in ponds 3 or 4 on 14 or 15 April 2004. Mr Bliss agreed that such tests could have removed some of the uncertainties about his evidence, and that of Professor Greenfield. Professor Greenfield said that that there are organisms which can survive in these low pH conditions, but that there is relatively little scientific literature about specific organisms which grow at pH values between 2.5 and 3.5, and even less about their ability to generate specific odorous compounds. I accept this evidence, which suggests that microbial testing may have been of more limited assistance than Mr Bliss hoped. For the same reasons as given in the paragraph above, the absence of evidence about the micro-organisms in the liquid or solids on 14 and 15 April 2004 does not undermine the reliability of Mr Jamieson's and Mr Newman's observations about what they smelt.

135 Mr Bliss and Professor Greenfield were both eminent experts. Their evidence was most impressive. The fact that Mr Bliss's opinions were formed assuming that Mr Jamieson and Mr Newman had smelt the odours they say they smelt at the ponds, and that the ponds were the source of those odours, did not undermine the validity of his opinions in any way.

136 The defendant submitted that Mr Bliss's evidence was to the effect that the odours smelt by Mr Jamieson and Mr Newman were caused by either a point source (from the pumping operation on 15 April 2004 disturbing the solids) or a pond wide source (that is, the whole pond(s) going off). The defendant submitted that both opinions were untenable for many reasons including, but not limited to, Professor Greenfield's evidence. This neat dichotomy - either point source or whole pond having "gone off" - does not accurately represent Mr Bliss's evidence. While Mr Bliss accepted that the most intense concentrated dog faeces odour was likely to be a point source, he did not accept that the other (relatively less intense, but still strong and unpleasant) odours were necessarily or even likely to be a point source (that is, I infer, the sharp, acidic, vomit and off-cheese odours). Nor were his opinions limited to the transfer from pond 3 to pond 4 having disturbed pond solids. His opinions included the potential for biological activity in the wastewater itself, and disturbance of pond solids during the initial transfer of wastewater to pond 3, after it had been solids for some four months.

137 Professor Greenfield's key opinions were that: - (i) it was highly unlikely the pH of the pond solids was different from the pH of the pond liquids, (ii) the low pH range in the ponds was a very harsh environment so it could be expected that all biological activity would be very slow, (iii) it was unlikely that the pumping of liquid from pond 3 to pond 4 would have disturbed the solids in the ponds, (iv) it was unlikely that biological activity would have occurred in the pipework, and (v) if any pond had "gone off", the odour would not have stopped quickly as the ponds were large and slow moving. Professor Greenfield's evidence must be considered as a whole in the context of the other evidence about the operational history of the ponds of which he was unaware (as he disclosed in his report), the capacity of the ponds to cause odours, the fact that Mr Jamieson and Mr Thompson said the ponds always smelt and the less intense vomit and off-cheese odours which Mr Jamieson smelt at the ponds late on 15 April 2004 after the pumping had stopped. In that context, I do not consider that Professor Greenfield's evidence supported the defendant's submissions that Mr Bliss's opinions about the possible causes of odour from ponds 3 and/or 4 were fanciful and untenable.

138 Moreover, Professor Greenfield said that there was no biological break point (in terms of pH) under which microbes will not grow and over which they will grow. This is consistent with the approach of the defendant's acid protocol that acidification would reduce or minimise (not, I note, eliminate) the potential for odours. Whether acid was added every day to the ponds or not cannot be decisive of anything given Professor Greenfield's opinions and the other evidence in the proceedings that the ponds always smelt. Whenever acid was added, the amount involved what Mr Thompson described as a "guesstimate". For this reason, Professor Greenfield thought it sensible for the pH to be tested every second day in accordance with the acid protocol, after the acid was added due to the low mixing power in the ponds and, I infer, the consequent slow distribution of the acid throughout the pond liquid. The pH, however, was not tested every second day, as Mr Thompson made clear. In common with Mr Bliss, Professor Greenfield did not know the presence or not of odorous compounds in the actual wastewater transferred to pond 3. Professor Greenfield did not know how long pond 3 had remained as pond solids without any acid being added. I am satisfied that pond 3 contained only solids from some time in December 2003, without any acid added thereafter until 6 April 2004 or 13 April 2004 (and, in my view, nothing can turn on this date). While low pH made biological activity very slow, Professor Greenfield accepted that the longer the pond solids remained without acid addition, the greater the risk of bacteria growing.

139 Professor Greenfield also said that if the ponds were generating odour caused by bacteria on 14 and 15 April 2004, he would not expect the odours to be as described, I infer, by Mr Jamieson and Mr Newman. Professor Greenfield carefully expressed this in terms as an expectation only. This expectation appeared in a report which otherwise disclosed that the biodegradable material in the defendant's wastewater streams could generate anaerobes, which were well known for their ability to generate odorous compounds. In the context of the matters referred to in the above paragraph, Professor Greenfield's expectation does not affect my acceptance of the evidence of Mr Jamieson and Mr Newman about what they smelt at the defendant's ponds on 15 April 2004.

140 I cannot characterise Professor Greenfield's evidence, considered in context, as inconsistent with Mr Bliss's opinions that the reason the ponds caused the odours smelt by Mr Jamieson and Mr Newman was most likely to a consequence of anaerobic biological action in pond 3 effusing odours from the surface of that pond, exacerbated by the turbulence around the up-welling caused by pumping from pond 3 to pond 4.

141 The defendant submitted that the data from the farm paddock meteorological station showed that Mr Jamieson and Mr Newman were not downwind of the up-welling in pond 4 when they thought they were on 15 April 2004. This submission was based on Mr Stephenson's evidence. For the reasons given above, I do not accept Mr Stephenson's evidence based on data from the defendant's meteorological stations. That evidence is generally inconsistent with Mr Todoroski's evidence. Mr Todoroski provided me with reliable expert opinions, which I accept. The overall conclusion of Mr Todoroski (which I accept) is that the meteorological data alone did not exclude the defendant's ponds as the source of the odour (contrary to Mr Stephenson's evidence in his March 2006 report, which I reject). I also do not accept Mr Stephenson's evidence about the unreliability of the data relied on by Mr Todoroski, or the defendant's submission that this data (presumably) was so unreliable that Mr Todoroski's opinions ought to be rejected. Mr Stephenson's company had used the same data in the June 2004 incident report. Importantly, I accept that it was wrong to conclude (as Mr Stephenson did) that an odour could only reach a receiver if the wind had blown from the source to the receiver at the time the odour was smelt or in a short period prior to the odour being smelt.

142 Given these conclusions, the matters put to Mr Todoroski about the information needed for detailed odour modelling in an ideal world, the compliance or otherwise of the defendant's meteorological stations with the Australian Standard, and the reliability of one of the defendant's meteorological stations compared to the other, do not affect my conclusion that Mr Todoroski's opinions should be accepted. The weather station data does not exclude the defendant's ponds as the source of the odours smelt by the witnesses in these proceedings. The weather station data also does not undermine the reliability of the observations made by Mr Jamieson and Mr Newman at the ponds and elsewhere on 15 April 2004 about general wind direction and strength. I accept that they were capable of determining whether they were upwind or downwind of the ponds and the up-welling in pond 4 as they described.

143 Insofar as the defendant relied on Exhibit 17 to support the submission that Mr Stephenson's evidence excluded the ponds as the source of the odour, I accept the prosecutor's submissions about the inadequacies of that exhibit (and the other diagram showing the odour plumes path of travel in the March 2006 report). Even assuming the path shown to be accurate, the lines represent a postulated path of the plume only, and do not take into account the size of the plume. Insofar as Mr Stephenson did represent the width of the plume (page 58 of the March 2006 report), the diagram was unreliable for the reasons given by the prosecutor - it did not take into account the period of time leading up the odours being perceived and the location of the plume throughout that period.

144 The odours Mr Jamieson and Mr Newman smelt at the ponds were particularly strong and plainly revolted them (that is, the vomit and off-cheese odour and the vomit, off-cheese and dog faeces odour for Mr Jamieson, and the concentrated dog faeces odour for Mr Newman). Mr Newman said he had never smelt such an odour before, and it was the worst odour he had ever smelt on the defendant's premises. The fact that the odour they smelt at the ponds was particularly strong (and, in that sense, could be said to be unusual) does not undermine the veracity of their observations. The same conclusion applies to the observations made by some of the lay witnesses that the odour was different from the defendant's normal odour, either because it was so much stronger or because it had other foul characteristics.

145 The defendant submitted that if the ponds were the source of odour that was carried to Bomaderry, the odour would have had to cross Hannigans Lane, yet there was an "inexplicable" absence of complaint from residents of Hannigans Lane. Mr Jamieson said there were probably five or six residences on Hannigans Lane. I do not consider that any rational inference can be drawn from the absence of complaint from residents of Hannigans Lane. Mr Jamieson and Mr Newman smelt the same odour on Hannigans Lane as they smelt at the ponds. The absence of complaints from residents of Hannigans Lane is immaterial.

Mr Stephenson's opinions about ponds not being the odour source

146 Against these findings, I deal with Mr Stephenson's alternative explanations of the odour smelt by Mr Jamieson and Mr Newman at the ponds on 15 April 2004.

147 Mr Stephenson said in chief that the odours smelt by Mr Jamieson and Mr Newman on 15 April 2004 at the defendant's ponds could not have originated from the ponds, because Mr Jamieson and Mr Newman were within an air mass that contained odours from elsewhere (to the south-east or north-east of the ponds) and which were travelling after the inversion lifted (in which context he referred to Exhibit 17). He did think the intensity of the odours they smelt a "little unusual", but that did not alter his opinion. Later, he said that this phenomenon was not "pie in the sky" and was "possible" under a tight inversion. Later again, when asked in cross-examination why, in the case of a travelling air mass containing odour from outside the defendant's premises, Mr Jamieson and Mr Newman smelt the odour downwind and not upwind of the ponds, he said that the odour could have "pooled". That is, that the air mass containing the odours (generated outside the defendant's premises) travelled from outside the defendant's premises and pooled around the ponds. He finally said that the odour "could have been from the ponds and it could have been pooling". Elsewhere in his evidence, Mr Stephenson referred to the possibility that the odour was travelling with Mr Jamieson and Mr Newman in their clothes or cars.

148 Mr Jamieson accepted that it was "theoretically possible" for an odour emitted from the paper mill to be transported on the breeze to ponds 3 and 4. Mr Todoroski said that he thought it "highly improbable" that the odour smelt by Mr Jamieson and Mr Newman could have come from other than the ponds, this being "next to impossible, but I can't rule it out".

149 Are these three hypotheses (odours travelling with Mr Jamieson and Mr Newman such as in clothes or cars, odours in travelling air mass, and/or odours in pooled air mass) reasonable hypotheses inconsistent with the ponds having been the source of the odours smelt by Mr Jamieson and Mr Newman at the ponds, which have not been negative beyond reasonable doubt? To put it another way, am I satisfied beyond reasonable doubt that the only rational inference on the evidence is that the ponds were the source of these odours?

150 I am satisfied beyond reasonable doubt that Mr Jamieson and Mr Newman were not carrying the odour around with them (in their clothes, cars or otherwise). That notion is irreconcilable with the whole of their evidence (which I accept) of having smelt odours in particular locations, and not in others. As one example, Mr Newman said (and I accept) that he was driving east on Cambewarra Road when he drove into the same concentrated dog faeces odour that he smelt at the defendant's ponds earlier in the day. That evidence is irreconcilable with the notion that the odour was travelling with Mr Newman. The same observations could be made about Mr Jamieson's evidence. This hypothesis has been excluded on the evidence beyond reasonable doubt.

151 I am satisfied beyond reasonable doubt that the notion that Mr Jamieson and Mr Newman were unlucky enough to be standing in a travelling air mass containing concentrated odours from elsewhere on each occasion they visited the ponds throughout 15 April 2004 is irrational. This notion is irreconcilable with the facts that between them Mr Jamieson and Mr Newman were at the ponds three times through the afternoon of 15 April 2004, and the particularly strong odour (with the dog faeces component) was present when the pump was operating to transfer wastewater from pond 3 to pond 4, and absent when it was not. Mr Jamieson and Mr Newman did not smell the particularly strong odour (with the dog faeces component) upwind of the up-welling in pond 4, but smelled it downwind of that point. Their observations overall point inexorably to the up-welling in pond 4 as the source of that odour, and to pond 3 as the source of the somewhat less intense (but still strong) vomit and off-cheese odour. The fact that Mr Todoroski was prepared to concede that the notion of an odour having travelled from elsewhere to the ponds was "highly improbable" and "next to impossible, but I can't rule it out", and that Mr Jamieson acknowledged the "theoretical" possibility of such an occurrence on the assumptions put to him, does not make the hypothesis rational or reasonable. This hypothesis has been excluded on the evidence beyond reasonable doubt.

152 I am satisfied beyond reasonable doubt that the notion that Mr Jamieson and Mr Newman were unlucky enough to be standing in a pooled air mass on each occasion they visited the ponds throughout 15 April 2004 is irrational. Mr Stephenson only raised this possibility in cross-examination, in response to questions about why, if the odour was in a travelling air mass crossing the ponds, Mr Jamieson and Mr Newman could smell the odour downwind but not upwind of the up-welling in pond 4. This hypothesis is irreconcilable with the observations of Mr Jamieson and Mr Newman at the ponds. It is irreconcilable with their observations throughout 15 April 2004 about general wind movements. Moreover, the notion that an odorous air mass from outside the defendant's premises could have somehow landed in the area of the ponds and remained there throughout the afternoon of 15 April 2004 patently lacks any rational foundation. This hypothesis has been excluded on the evidence beyond reasonable doubt.

153 For the reasons I have given above, I am satisfied beyond reasonable doubt that the only rational inference available is that the odours that Mr Jamieson and Mr Newman smelt while at the ponds were emitted from the ponds and the ponds alone (specifically from the surface of pond 3 and from the up-welling in pond 4).

154 I accept Mr Jamieson's and Mr Newman's evidence about the odours they had previously smelt on the defendant's environmental farm and at other premises in the locality. I also accept their evidence about the odours they smelt, where and when they smelt them, and the effect the odours had on them on 15 April 2004. I accept that Mr Newman could and did distinguish the odour he smelt at the paper mill clarifier tanks on 15 April 2004, and the dog faeces odour he described as having been emitted from pond 3 and the up-welling in pond 4. I also accept Mr Patterson's evidence that he smelt a strong sickly sweet vomit odour that he identified as the odour he had smelt before at the defendant's ponds and characterised as very similar to the odour he had smelt before at the defendant's ponds.

155 I do not accept Mr Stephenson's evidence, or the defendant's submissions, that Mr Jamieson and Mr Newman were unable to eliminate other potential sources of odour by driving past that odour source with the windows down and the air conditioning off. The submission fails to appreciate the nature, strength and character of the odours smelt by Mr Jamieson and Mr Newman coming from the ponds (see above), and smelt elsewhere by them on 15 April 2004, being odours which they expressly identified as the same odours on many occasions, as well as the odours they smelt at and in the vicinity of other premises which were limited in intensity and extent, and of a different character.

156 I do not accept the defendant's submission that the inspections by Mr Jamieson and Mr Newman were or could have been too late to identify that these other premises had or could have emitted the odours that Mr Jamieson and Mr Newman smelt at the defendant's ponds, and in the other locations as I have identified. On the evidence, this is not a reasonable or rational hypothesis, and has been excluded beyond reasonable doubt for a number of reasons.

157 First, I am satisfied beyond reasonable doubt that the defendant's ponds were emitting the odours smelt by Mr Jamieson and Mr Newman at those ponds on 15 April 2004. The vomit and off-cheese odours were the same as Mr Jamieson had smelt before at the defendant's ponds. Mr Jamieson had also smelt the dog faeces odour before from the defendant's irrigated wastewater. The pond water and irrigated water were the same, but for the addition of lime. Mr Newman had smelt the odour he identified as vinegary, foul, off-cheese and vomit before at the defendant's ponds, but not the dog faeces odour. The dog faeces odour was extremely intense downwind of the up-welling in pond 4. It was obviously a very strong and distinctive odour. Mr Newman said it was the worst odour he had ever smelt on the defendant's premises, when the odours he had smelt before were foul and made him feel like vomiting. Mr Jamieson and Mr Newman both identified that odour as the same odour they smelt in various locations throughout the day outside the defendant's premises. At some locations, the smell remained sufficiently intense for Mr Newman to say that he drove into the smell. While Mr Newman's agreed that it may be difficult to distinguish between types of faeces, he also said that he could distinguish the paper mill sewage odour from the odour he smelt at the ponds on 15 April 2004 - which I accept.

158 Secondly, neither Mr Jamieson nor Mr Newman identified that they had smelt such odours from any other premises at any time before 15 April 2004. The odours they smelt at or near other premises on 15 April 2004 were not only different odours from the odour they had smelt at the defendant's ponds, but were limited in their intensity and extent.

159 Thirdly, in their travels on 15 April 2004, Mr Jamieson and Mr Newman covered a substantial area, encompassing all the potential odour sources they had identified.

160 Fourthly, Mr Jamieson smelt the odour at the home of Ms Collingridge and Mr Gordon. Mr Gordon said that when he was with Mr Jamieson, the same odour was there, as he had smelt when he got home at about 2.30pm, just not as strong. The same observation may be made about Mr Newman's evidence when he attended at Mr Williamson's home.

161 Fifthly, Mr Patterson recognised the odour he smelt at the Council's Chambers as the same as, and with similar characteristics as, the odours he had smelt before at the defendant's ponds.

162 The evidence of Mr Todoroski and Mr Bliss that one or other of them thought it possible that the Dairy Farmers factory and the paper mill might be able to generate vomit, off-cheese and dog faeces odours must be considered in the above context. In that context, this evidence does not lend weight to the submission that other potential odour sources had not been eliminated beyond reasonable doubt.

163 I do not accept the defendant's submission that I am unable to be satisfied beyond reasonable doubt that the defendant's ponds were the source of odours experienced in the area on 15 April 2004 because the investigation by Mr Jamieson and Mr Newman only ruled out alternative odour sources at the particular time they visited those premises. The evidence was not limited to the inspections by Mr Jamieson and Mr Newman on 15 April 2004. It included all the evidence to which I have referred above.

164 When the whole of that evidence is considered, I am satisfied beyond reasonable doubt that none of the potential alternative odour sources identified by Mr Jamieson and Mr Newman were the sources of the odours they smelt at the ponds (to the contrary the ponds were the source of those odours). Further, the ponds were also the source of the odours they smelt outside the defendant's premises on 15 April 2004 (that is, the vomit and off-cheese odours, the vomit, off-cheese and dog faeces odours, and the concentrated dog faeces odour).

165 I do not accept Mr Stephenson's identification of further alternative odour sources not considered by Mr Jamieson and Mr Newman. A sufficient reason for this conclusion is my rejection of Mr Stephenson's evidence generally. With my other findings above, I am satisfied that the notion of some source for the relevant odours (vomit, off-cheese and dog faeces, vomit and off-cheese, and concentrated dog faeces) other that the defendant's ponds has been negatived beyond reasonable doubt. If necessary, other reasons are that Mr Jamieson and/or Mr Newman were at or near all potential odour sources identified on Figure 4-1 of the March 2006 report of 15 April 2004 (including Schofield's and Eaton's farms and Abernethy's Creek) and did not smell any odours out of the ordinary in those locations. Abernethy's Creek (only mentioned in Mr Stephenson's oral evidence) was identified by Mr Stephenson as a potential odour source only in the event of an overflow from the Bomaderry sewage treatment plant. Based on the inspections of Mr Jamieson and Mr Newman, the hypothesis of an overflow is not rational. Muller's farm is not shown on Figure 4-1 as such, and was not mentioned by Mr Stephenson in his oral evidence when identifying odour sources. Mr Stephenson's reference to farms generally was unhelpful, as he did not identify their location. The defendant's environmental farm is very large, and occupies a large area north of Bolong Road. Mr Stephenson did not refer to the saleyards in his oral evidence. Further, he agreed in cross-examination that his odour livestock wheel was relevant only as an example of an odour wheel, and not as a possible identification of the odours smelt on 5 April 2004.

166 Hence, I am satisfied beyond reasonable doubt that other potential sources of odour in the locality did not cause the odours smelt by Mr Jamieson and Mr Newman on 15 April 2004 as found above (that is, the vomit and off-cheese, vomit and off-cheese and dog faeces, and concentrated dog faeces odours) either at the ponds or outside the defendant's premises. The ponds caused those odours.

167 I do not accept Mr Stephenson's evidence that the odours smelt by Mr Jamieson and Mr Newman throughout 15 April 2004 of off-cheese and vomit, off-cheese, vomit and dog faeces or concentrated dog faeces, may have mixed with odours from other sources, thereby creating an offensive odour off the defendant's premises, when the odours generated within the defendant's premises were not offensive. That suggestion is irreconcilable with the observations made by Mr Jamieson and Mr Newman on the defendant's premises, and their observations off the defendant's premises. I am satisfied beyond reasonable doubt that this hypothesis has been excluded on the evidence.

168 I do not accept the defendant's submission that because Mr Jamieson and Mr Newman smelt the potential alternative odour sources and may be inferred each to have different perceptions and descriptions, their exclusion of those sources is necessarily unreliable (that is, one source not smelt by Mr Jamieson may have been emitting an odour smelt by Mr Newman at the ponds and elsewhere and the reverse). This submission is irreconcilable with their consistent evidence about odours smelt and not smelt, and with the nature, intensity and location of odours smelt and not smelt.

169 I do not accept that Mr Jamieson's description in his note of the off-cheese, vomit and dog faeces odour at the defendant's ponds as containing a grease trap component undermines any of these conclusions. Mr Jamieson and Mr Newman both smelt a grease trap odour in proximity to the Dairy Farmers premises on 15 April 2004. Mr Jamieson inspected those premises, and identified that the grease trap odour did not extend more than 100 metres from its source on those premises. The fact that Mr Newman did not smell an odour he described as grease trap at the defendant's ponds is immaterial. Mr Jamieson's evidence that the odour he smelt at the ponds (and which I have found was emitted by the ponds) was the same odour he smelt elsewhere on 15 April 2004 was reliable, and I accept it. Mr Newman's evidence was overwhelmingly corroborative of Mr Jamieson's evidence.

170 I do not accept the defendant's submission that because Mr Jamieson and Mr Newman did not remain in the plume of odour they sourced to the defendant's ponds on 15 April 2004 and trace that particular plume over the boundary of the defendant's premises, I am unable to be satisfied beyond reasonable doubt that any odour emitted by the ponds, was also emitted from the defendant's premises. My reasons are those given above.

171 The prosecutor and defendant both prepared tables identifying the various odour descriptions. Some residents identified the odour they smelt as having faeces characteristics (Ms Smith, Mr Ash, Mr Mawer). Others said it had acidic, vomit, sharp, sickly, characteristics (Ms Russell, Ms Collingridge, Ms Walker - close to a vomit smell, Ms Davidson, Mr Gordon). Mr Marshall characterised the smell quite differently (blood and bone). Ms Taylor's description was general (foul, stale milk, smelly sandshoes, vile, sour). Ms Anstiss's description was vinegar with a horrible rancid character (not vomit or off-cheese or dog faeces). Ms O'Neill's was rotting garbage and sewage. Mr Williamson thought it a rotting, sickly, sweet vegetation smell. Mr Mawer also called it a sickly silage smell.

172 The prosecutor submitted that the residents' evidence corroborated the observations of Mr Jamieson and Mr Newman. The defendant submitted that the variety of odour descriptions pointed to different odour sources. I do not accept the defendant's submission. The different descriptions are unsurprising given the nature of odour perception. For example, Ms Collingridge and Mr Gordon lived together yet gave different descriptions of the odour they smelt. It can readily be inferred that they smelt the same odour, albeit at different times. Mr Gordon's description of the odour differed from Mr Jamieson's description, even though they were together at one time when they smelt the odour. Mr Newman and Mr Williamson gave different descriptions of the odour they smelt even though they were together at one time when they smelt the odour. They also both said, and I accept, that this was the same odour they each smelt earlier.

173 The residents reported odours on 14 April 2004 when the pumping operation (I accept) commenced on 15 April 2004. The defendant relied on this as an anomaly, supporting the hypothesis of an alternative odour source. I disagree. That fact is consistent with Mr Bliss's description of odorous materials in the wastewater effusing through the surface generally, and the more concentrated odours that Mr Jamieson and Mr Newman smelt at the ponds having been exacerbated by the pumping.

174 As the residents did not attend the defendant's ponds on 14 or 15 April 2004 I have based my ultimate findings on the evidence of Mr Jamieson and Mr Newman, and those residents who occupied dwellings where Mr Jamieson or Mr Newman were present and smelt the same odour the resident smelt on 15 April 2004. This should not be taken to indicate that I do not accept the evidence of other persons who gave evidence about odours they smelt on 14 and 15 April 2004, or that I have left open the possibility that another odour source caused odours on that day that remained in the locality and were smelt by Mr Jamieson and Mr Newman on 15 April 2004. For the reasons given above, that is not so. Nevertheless, to the extent that those persons (including Mr Gordon and Mr Williamson) attributed the odour they smelt to the defendant, I do not place weight on those attributions.

175 While I have taken into account the evidence of Mr Thompson, Mr Lawer, the records of interview and the facsimiles from Mr Hill, none of those matters, in my view, undermine my findings as set out above.

176 I have not given weight to Mr Jamieson's subsequent use of the weather data from one of the defendant's meteorological stations in reaching this state of satisfaction. However, I do not accept that Mr Jamieson's reading of the weather data was unreliable because he did not have meteorological training. I am satisfied that the necessary training to read the defendant's weather data was relatively limited, and that Mr Jamieson had sufficient training to interpret that data to ascertain whether it was consistent or inconsistent with the observations he made on 15 April 2004. I simply do not think it necessary for me to rely on that evidence to support my findings.

177 Further, I have not given weight to the admissions by Mr Hill relied on by the prosecutor. The prosecutor submitted that the conversations with Mr Hill were admissions on behalf of the defendant, and established that starting the recirculation of effluent had caused an odour problem. The prosecutor observed that: - (i) the defendant's set of factual assumptions (Exhibit 26) admitted a capacity for odours on start-up, (ii) Professor Greenfield had recorded a note as part of his instructions consistent with Mr Hill having said the start-up generated odour, (iii) Mr Hill accepted the thrust of the conversation with Mr Newman in the interview, and only later sought to qualify that response, and (iv) it was significant that the defendant had not called Mr Hill to give evidence, but had otherwise called evidence ( Jones v Dunkel and Another (1959) 101 CLR 298 at 308, 312, 320 - 321, Fabre v Arenales and Another (1992) 27 NSLWR 437 at 449 - 450, Weissensteiner v The Queen (1993) 178 CLR 217 at 227 - 228). The defendant replied that an adverse inference could not be drawn against the defendant or prosecutor by reason of it not having called Mr Hill ( R v OGD (1997) 45 NSWLR 744, RPS v The Queen (2000) 199 CLR 620, Azzopardi v The Queen (2001) 205 CLR 50, R v Dover [2001] NSWCCA 412, Dyers v The Queen (2002) 210 CLR 285, and Regina v LTP [2004] NSWCCA 109 at [98] - [99]).

178 I accept the defendant's submission that I may draw no inference adverse to the defendant or prosecutor from the fact that Mr Hill was not called to give evidence. While I accept that Mr Newman and Mr Jamieson tried to give an accurate record of the relevant parts of the conversations they had with Mr Hill, the content of those conversations, considered as a whole, is ambiguous and of insufficient weight for me to rely upon. I also accept the defendant's submission that the note of Professor Greenfield about Mr Hill having smelt an odour on start-up is likely to be hearsay on hearsay, and can be given no weight.

179 Having regard to the definition of "offensive odour" in the POEO Act, I am satisfied beyond reasonable doubt that the following odours emitted from the defendant's ponds to locations outside the defendant's premises on 15 April 2004 were offensive odours as defined: - (i) in the morning near 80 Hannigans Lane - the vomit and off-cheese odour smelt by Mr Jamieson which was strong enough to upset his stomach, and the strong vomit odour smelt by Mr Newman which caused him to gag, (ii) in the park on the corner of Tallayang Street - the vomit and off-cheese odours smelt by Mr Jamieson and Mr Newman which upset Mr Jamieson's stomach, (iii) at Nita Place - the vomit and off-cheese odour and vomit, off-cheese and dog faeces odour smelt by Mr Jamieson (which upset his stomach), and the vomit odour and concentrated dog faeces odour smelt by Mr Newman which made him strongly react, (iv) in the afternoon - the vomit and off-cheese odour smelt by Mr Jamieson in Karowa Street, which brought water to his mouth, (v) the vomit, off-cheese and dog faeces odour smelt by Mr Jamieson in Bunberra Street - which upset his stomach, and the odour smelt by Mr Gordon from 2.00pm that afternoon in the same location, (vi) in the afternoon - the concentrated dog faeces odour smelt by Mr Newman on Cambewarra Road, on the corner of Cambewarra Road and Meroo Street, on Railway Street, and on Meroo Street, which made him queasy and want to throw up, (vii) in the later afternoon - the fairly strong vomit and off-cheese odour smelt by Mr Jamieson on Bolong Road, and (viii) in the late afternoon - the vomit odour smelt by Mr Newman when in Karowa Street talking to Mr Williamson, and the odour smelt by Mr Williamson throughout 15 April 2004.

180 I am satisfied beyond reasonable doubt that these odours were all offensive odours as defined which were emitted from ponds 3 and 4, and that such emissions had been caused by the defendant's activities of storing its wastewater in those ponds. Ponds 3 and 4 were part of premises occupied by the defendant to which a licence applied and under authority of which scheduled activities were carried on. These odours were experienced by the people smelling them outside the defendant's premises as odours that, by reason of their strength, nature, character and quality, interfered unreasonably with their comfort and repose. For the same reasons, those odours were likely to interfere unreasonably with the comfort and repose of any other person who may have smelt those odours outside the defendant's premises. To the extent that the defendant submitted that it would be a "long bow" to find some of the odours experienced on 15 April 2004 to be "offensive odours" within the meaning of the POEO Act, I do not accept that submission with respect to the odours I have identified.

181 It follows that I do not accept the defendant's submission that "five critical unexplained" matters give rise to a reasonable doubt in this case. While I have addressed each of these matters in context already, my reasons (in point form) are identified for each such matter below. (1) The timing of the odour (that is, that odours were smelt on 14 April 2004, and the ponds not inspected until the following day, taken with Mr Thompson's evidence about no odour being present on 14 April, Professor Greenfield's and Mr Bliss's evidence about the unlikelihood of a pond wide odour source starting and stopping quickly, and pumping having started on 15 April): - Mr Thompson's evidence about odours from the defendant's premises, in the context of his evidence overall, is immaterial. The defendant's characterisation of Mr Bliss's evidence was an over-simplification and inaccurate. Mr Bliss's hypothesis of the point source for the most intense odour (the up-welling created by the pumping on 15 April) and a more general source for the less intense odour (the ponds surface or part thereof generally) was plausible and consistent with the actual observations about odours from the ponds (including Mr Thompson's evidence about more intense odours in hot weather). Professor Greenfield's evidence, taken as a whole, was not inconsistent with this explanation for the reasons I have given.

(2) People on site on 14 and 15 April 2004 did not smell the odour (Mr Lawer and Mr Thompson in particular): - There is no reason to expect that Mr Lawer would have smelt the more intense odour when the pumping commenced after his delivery. As to the more general odour, Mr Lawer was the only witness never to have smelt an unpleasant odour from the ponds - but he was not attending the premises for that purpose, was wearing a splash mask and routinely dealing with a substance known for corroding mucous membranes in the nose. There is also no reason to expect that Mr Thompson would have smelt an odour on 14 April 2004 given his routine attendance at the premises.

(3) The vastly differing odour descriptions suggest different odour sources were in play: - As explained above, the different descriptions are insignificant and not unexpected.

(4) Other reasonable hypotheses consistent with innocence have not been negatived beyond reasonable doubt ( Doney v The Queen (1990) 171 CLR 207 at 211, Shepherd v The Queen (1990) 170 CLR 573 at 578-580, Environment Protection Authority v All Chrome Shop Pty Ltd (1996) 89 A Crim R 474 at 483, Regina v Ahmad [2002] NSWCCA 265 at [12], Plomp v The Queen (1963) 110 CLR 234 at 252): - Given the evidence which I have accepted, I am satisfied beyond reasonable doubt that there is no reasonable hypothesis available consistent with the defendant's innocence.

(5) Mr Jamieson and Mr Newman's investigation was tainted as they assumed that the ponds were the cause of the odour: - Mr Jamieson and Mr Newman were aware of odours generated at the defendant's premises prior to 15 April 2004. They knew that the odour complaints they were investigating suggested the defendant was responsible. These facts do not undermine the validity of the observations that they made on the day, which I have accepted.

182 For the reasons given above I am satisfied beyond reasonable doubt that the defendant, on 15 April 2004, was the occupier of premises at which scheduled activities were carried on under the authority conferred by a licence and caused the emission of offensive odours from the premises to which the licence applied within the meaning of s 129(1) of the POEO Act. None of the defences in s 129(2) are available, and the defendant did not invoke any of those defences. Accordingly, I find the offence charged in the summons proved with respect to the date 15 April 2004. ****************************

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