Gerondal v Eurobodalla Shire Council [2010] NSWLEC 1217 | Case summary

Statutory Provisions Protection of the Environment Operations Act 1997 95 Meaning of environmentally unsatisfactory manner For the purposes of this Part an activity is carried on in an environmentally unsatisfactory manner if: (a) it is carried on in contravention of, or in a manner that is likely to lead to a contravention of, this Act, the regulations or a condition attached to an environment protection licence (including a condition of a surrender of a licence) or an exemption given under this Act or the regulations, or (b) it causes, or is likely to cause, a pollution incident, or (c) it is not carried on by such practicable means as may be necessary to prevent, control or minimise pollution, the emission of any noise or the generation of waste, or (d) it is not carried on in accordance with good environmental practice. Section 96 Preventive action (1) Application of section This section applies when the appropriate regulatory authority reasonably suspects that an activity has been or is being carried on in an environmentally unsatisfactory manner at any premises or by any person (otherwise than at premises). (2) Prevention notices The appropriate regulatory authority may, by notice in writing, do either or both of the following: (a) direct the occupier of the premises, (b) direct the person carrying on the activity (whether or not at premises), to take such action, as is specified in the notice and within such period (if any) as is specified in the notice, to ensure that the activity is carried on in future in an environmentally satisfactory manner. (3) Examples The action to be taken may (without limitation) include any of the following: … (e) carrying on an activity in a particular manner, … (h) action with respect to the transportation, collection, reception, re-use, recovery, recycling, processing, storage or disposal of any waste or other substance, (i) preparing and carrying out a plan of action to control, prevent or minimise pollution or waste, (j) reviewing the carrying out of an activity. (3A) Water pollution considerations The appropriate regulatory authority, when determining the action to be specified in a notice relating to an activity that causes, is likely to cause or has caused water pollution, must consider: (a) the environmental values of water affected by the activity, and (b) the practical measures that could be taken to restore or maintain those environmental values, and (c) if the appropriate regulatory authority is not the EPA - any guidelines issued by the EPA to the authority relating to the exercise of functions under this section. (4) Occupier's duty If the occupier who is given a notice is not the person carrying on the activity, the notice is taken to require the occupier to take all available steps to cause the action to be taken. (5) Reports A prevention notice may require the person to whom the notice is given to furnish reports to the appropriate regulatory authority regarding progress on carrying out the action required to be taken by the notice. 97 Offence A person who does not comply with a prevention notice given to the person is guilty of an offence. Maximum penalty: (a) in the case of a corporation - $1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or (b) in the case of an individual - $250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues. 98 Action in event of failure to comply If a person does not comply with a prevention notice given to the person, the appropriate regulatory authority may take action to cause the notice to be complied with by itself or by its employees, agents or contractors. 196 Powers of authorised officers to enter premises (1) An authorised officer may enter: (a) any premises at which the authorised officer reasonably suspects that any industrial, agricultural or commercial activities are being carried out - at any time during which those activities are being carried out there, and (b) any premises at or from which the authorised officer reasonably suspects pollution has been, is being or is likely to be caused - at any time, and (c) any other premises - at any reasonable time. (2) A power to enter premises conferred by this Act authorises entry by foot or by means of a motor vehicle or other vehicle, or by an aircraft, or in any other manner. (3) Entry may be effected under this Act by an authorised officer with the aid of such authorised officers or police officers as the authorised officer considers necessary and with the use of reasonable force. (4) Entry may be effected to any premises with the authority of a search warrant under section 199. 197 Entry into residential premises only with permission or warrant This Part does not empower an authorised officer to enter any part of premises used only for residential purposes without the permission of the occupier or the authority of a search warrant under section 199. The Dictionary to the POEO Act provides the following definition of waste: waste includes: (a) any substance (whether solid, liquid or gaseous) that is discharged, emitted or deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment, or (b) any discarded, rejected, unwanted, surplus or abandoned substance, or (c) any otherwise discarded, rejected, unwanted, surplus or abandoned substance intended for sale or for recycling, processing, recovery or purification by a separate operation from that which produced the substance, or (d) any processed, recycled, re-used or recovered substance produced wholly or partly from waste that is applied to land, or used as fuel, but only in the circumstances prescribed by the regulations, or (e) any substance prescribed by the regulations to be waste. A substance is not precluded from being waste for the purposes of this Act merely because it is or may be processed, recycled, re-used or recovered. waste facility means any premises used for the storage, treatment, processing, sorting or disposal of waste (except as provided by the regulations). S.144 Use of land as waste facility without lawful authority (1) A person who is the owner or occupier of any land and who uses the land, or causes or permits the land to be used, as a waste facility without lawful authority is guilty of an offence. Maximum penalty: (a) in the case of a corporation-$ 1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or (b) in the case of an individual-$250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues. (2) In any proceedings for an offence under this section the defendant bears the onus of proving that there is lawful authority to use the land concerned as a waste facility:

NOTE: Motor vehicles, caravans and tractor observed on-site were unregistered and derelict. Removal of Waste The waste material removed is only to be removed to a place which can lawfully accept such waste material 9 The time stated in the notice for removal of the waste was 12 October 2009. The applicant subsequently wrote to the council to advise that she had not received the Prevention Notice, and also sought additional time to allow a development application to be lodged with the council for a dwelling as it was stated various building materials had been purchased. An extension of time was allowed by council of 6 weeks to allow the applicant to submit a development application and the date for compliance with the Prevention Notice was extended to 8 December 2009. 10 The respondent filed a Statement of Facts and Contentions in the proceedings as follows 1. The applicant is the registered proprietor of the property known as 19 Mungeroo Lane Bingie ("the premises") being certificate of title folio identifier 1/806104. 2. On 20 April 2009 an inspection of the Premises by the Respondent established that a substantial amount of material falling within the definition of "waste" within the definition of that expression contained in the Protection of the Environment Operations Act ("the Act") (including but not limited to: disused motor vehicles, caravans, building materials, bricks and pavers, roof tiles, window frames, corrugated iron, wooden pallets, glass bottles, treated poles, beer kegs, scrap metal and plastic) was being stored on and collected at the Premises ("the Activity"). 3. The Respondent believes that the Activity is being carried on in an environmentally unsatisfactory manner at the Premises. 4. Specifically, the Respondent believes that: (a) The Activity is such that it is likely that the Applicant is contravening s 144 of the Act. (b) The Activity is likely to cause a pollution incident, particularly bearing in mind the proximity of the Premises to environmentally sensitive coastal areas (c) The Activity is not being carried out by such practical means as may be necessary to prevent, control, or minimise the generation of waste and (d) The Activity is not being carried out in accordance with good environmental practice. Evidence and Submissions 11 On the behalf of the respondent council evidence was given to the Court by: Mr Richard Cumming, Senior Environmental Health Officer; Mr Nathan Ladmore, Environmental Health Officer employed with the respondent council. The applicant herself provided evidence to the Court and, with leave of the Court, she was assisted by Mr Gerondal. 12 Mrs Gerondal questioned Mr Cumming as to why there was no date on his statement to which he responded that this was an oversight. She also questioned him as to whether he took the photos in person attached to his report. That is the set of 16 photos of 2 May 2006, to which Mr Cumming answered yes. She enquired as to why the 2 sets of photographs were not identical in that one had a date imprinted on them and the others did not and whether in fact, they had been taken at the same time. Mr Cumming responded by saying that the 16 photos were on the mainframe of the computer and that the date is frozen in time, and he stated that the computer program allows the photos to be printed with or without the date. 13 Mrs Gerondal, enquired of Mr Cumming, whether he saw any artwork in the photos. He told the Court he did not recognise any artworks in the photos and considered the various photos to contain junk or scrap metal. Mrs Gerondal, questioned as to why he considered it to be waste, and he said the old shipping container was rusted and corroded and had been there for some time. He agreed that it was capable of being used for example, as a dwelling, however, only with development consent. But as it stands, in his opinion, it is an old shipping container that has been on the land since about 2006 and it is rusted and not used for transporting goods. 14 Mrs Gerondal asked whether he was aware of anything that may be polluting the environment or anything causing water pollution. Mr Cummings said that there are a number of things on the land that could cause pollution. That is the metal oxidising in the salt atmosphere and the acid sulphate soils. Although on questioning he could not say that there was any scientific evidence that he was aware of to show pollution. He considered that the property was a mess because of the amount of material and waste stored on site. Mrs Gerondal asked where in the delegation there is 'a right of conversion' of materials to waste, and Mr Cumming responded that this is not about conversion, and that it falls under the definition of 'waste' in the OPEO. The only exception in his opinion is the concrete water tank on the site. He was specifically questioned about the trailer which he considered to be waste and as to the boat he responded it could be abandoned. 15 He was questioned as to why he entered the property to take the photographs, because Mrs Gerondal submitted there was no urgency or concern, Mr Cumming responded that he entered the property under section 197, which allows entry where there is no residence. When he was asked whether he noticed a caravan on the site that may be a residence he responded that in his opinion it was not a residence because it was full of junk. Mrs Gerondal stated that he did not remain on site to see if there was residential occupation, and that approval is not required for a caravan. 16 Mr Ladmore was questioned by the applicant as to why materials interact with acid sulphate soils, and he responded that there could be run off and metal corrosion that could reach waterways. He was also asked whether there was any scientific evidence of this occurring, to which he responded that there is the possibility of migration to Kelly's Lake and with a large amount of uncontrolled metal waste this could be subject to corrosion. He was asked why he had provided a series of maps to show environmental constraints on the land and whether the CMA had expressed concern to which he responded "no, that the direction had been issued under the POEO Act, under which he had delegation." Mr Ladmore stated that "there is no development consent for the subject property, and there is concern about the accumulation of waste in an unsatisfactory manner and that the property is being used as a waste facility in contravention of section 144 of the POEO." 17 When further questioned about the scientific evidence to substantiate his concerns Mr Ladmore stated that there is a likelihood of uncontrolled run-off of pollutants. He said he was not concerned about individual items but the accumulation and the potential to cause pollution, and that from the photographs there is uncontrolled waste products shown in the photos in 2006 that have not moved and are subject to weather and corrosion. When questioned about 'environmentally unsatisfactory manner' as provided for in section 95 Mr Ladmore said that, in his opinion, if a waste facility is approved, it is operated, having regard to environmental best practice and that section 96 provides for preventative action. In his opinion the large accumulation of waste constitutes a waste facility and requires approval. 18 Mrs Gerondal submitted that the 1989 Local Environmental Plan zones the subject site Rural 1(C) and a waste facility is prohibited. 19 When questioned as to whether there was any urgency to inspect her property Mr Ladmore stated that he was directed by his supervisor, and that the legal requirement is that one cannot enter land but not a residence under the OPEO Act. 20 The applicant submitted that there had been no record in writing of complaints about her property and that she has been singled out as there is no scientific evidence or no evidence to support the site is within SEPP 14 Wetlands or within 40 metres of a waterway. In her opinion there is no evidence of pollution occurring on or from her property and that her property has never been used with the intention of a waste facility. She submitted that as an artist she collects materials of choice, including bamboo, metal and timber, and that she exhibits artworks in galleries and lectures in recycling and art. She informed the Court she had won prizes in regional galleries and overseas for her artworks. 21 Mrs Gerondal considers council's action to be a total breach of her privacy. She informed the Court that she and her husband are retirees with disabilities and well over 65. She also stated that there are many instances in the local government area of metal items that are left to rust, whether that be boats or anchors, and also referred to council dumps in the area that contain metal and other objects. She stated that her artwork involves turning over metal and leaving it to weather and while Mr Cumming sees it as junk it is all in the eye of the beholder. She indicated to the Court that there are some things on the property that she would be prepared to remove, and furthermore that in time she would lodge a development application with council but can see no reason as to why she should be pressed to submit a development application. 22 Mr Warren, on behalf of the respondent submits that the Court has made enormous concessions to the applicant who is self represented. Nonetheless, in this case, he says that the evidence should be accepted of Mr Cumming and Mr Ladmore, and that in terms of section 96 the OPOE Act that the activity of "the collection and deposit of waste is carried out in an environmentally unsatisfactory manner and that one could reasonably suspect the use of the land as a waste facility, which does not have approval and which is in contravention of section 144." He submitted that the definition of waste is very broad in the Act and the test is not whether it has caused pollution, but whether it is likely to cause pollution or a pollution incident under section 95. He further submits that it is a reasonable belief that it is likely to cause pollution. He said, that the site inspection identified a significant amount of metal on site, exposed to elements and degraded, and that it is likely to cause pollution. 23 Mr Warren submits that it is common sense that the amount of material that is being deposited on the site is abandoned and that the amount of material is unreasonable and surplus. Furthermore, in terms of the definition of waste this includes: recycling, even if it is required for art objects. He said that subclause D does not apply and just because the applicant claims, reuse and recycling it still constitutes waste in terms of the definition. Mr Warren submits that section 144 only requires likely to be a contravention not proof of same and that this is enough to issue a Prevention Notice. 24 On the issue of power of entry to the property. Mr Warren states that this is provided for in section 196(1) and that the property does not contain residential premises. Mr Warren, submits that a comparison of the photographs taken by Mr Cumming and Mr Ladmore show the same items in both sets of photos looked more or less in the same position, and that the material has sat there for some 4 years. 25 Mr Warren agreed that the powers of the Court on appeal are wide and the Court can vary the notice and vary the time frame for compliance. 26 At the conclusion of the day in Court on 23 April 2010 I directed the applicant to provide a schedule of items she would like to remain on the land. The respondent was directed to advise what material it considered could be stored on the property and to nominate an area. 27 The respondent's response to the above included the following: 2. The Respondent understands that it has been requested by the Court to address what of the Applicant's material it would accept may legitimately be retained upon the property. 3. The Respondent has considered this issue in some depth with reference to the current LEP that applies to the land and Regulation 77 of the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005. 4. The land is subject to the Eurobodalla Council Rural Local Environmental Plan. 6. The relevant sections under the current Rural LEP that apply to the property can be found on pg 20 - ZONE NO. 1(c) (RURAL SMALL HOLDINGS ZONE) & pg 24 - ZONE NO.7(a) (ENVIRONMENT PROTECTION (WETLANDS) ZONE). 7. The current RLEP does not support the land being used solely for storage purposes where it is not demonstrated that it is associated and ancillary to either agricultural activity or residential development. Therefore, the concept of erecting or installing containers or structures on the property for the purposes of storing materials that have no association with a permitted land use is contrary to the objectives of the zones that apply to the land and would not, and it is submitted could not, be approved by Council. Similarly, the concept of allowing a defined area to store materials in would not, and cannot, be approved. 8. Regulation 77 of the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 appears to provide scope for the retention of no more than 2 caravans for casual occupation in accordance with the Regulation. This would require that any such caravans retained on the land be maintained in a fit state for human occupation at all times and free of accumulation of waste materials both inside and external to any such caravan. 28 The applicant forwarded a bundle of documents and a disc with photographs and material in May 2010. However, this did not address the question of material/goods to be retained. The parties were further contacted by a telephone conference on 12 August 2010 and once again the applicant was afforded the opportunity of submitting a list of items. The parties were also given the opportunity of making further submissions on the further documents filed following the hearing in court. 29 Mrs Gerondal filed further submissions 16 August 2010 but did not identify items to be retained. Rather the submission includes a summary of evidence already made including "the inspection and photographs all done unlawfully under trespass and not admissible.. the unlawful affidavits of council's officers" and comments on the inaccuracy of acid sulphate soils map supplied by the council and other material and maps. The applicant also included advice from the Catchment Management Authority. 30 Included in the applicant's latest submission is the following: All the above maps supplied by the applicant proved beyond doubt that there is no possible pollution has been caused or potentially caused in relation to the ASS or EEC or the marine park. Furthermore in respect of the items on the property, nothing further has been individually identified by the respondent as causing any type of pollution except that of acid sulphate soil or EEC. Since the allegation of causing pollution or potentially casuing pollution, there is no case for the removal of any items listed in the Prevention Notice. The items are lawfully owned and have a particular worth, purpose and are there for the purposes of building preparation, hobbies, routine Agricultural management activities (RAMA's), pest and fire control, and landscaping and storage thereof. There is no legislation which disallows the purchasing and keeping of such individual items by anyone who is not the lawful owner of them from one value to another. The applicant's eyesight continues to have require operations and hospitalization and the prognosis of blindness in the every near future. Findings 31 I must assess this appeal having regard to the framework of the statutory provisions of the relevant legislation under which the direction for preventative action was issued. While orders can be issued under both the Environmental Planning and Assessment Act and the Local Government Act, sections 121 and 124 respectively, for sites to be cleaned up for a number o f reasons including because a site is in an untidy state or are a potential health or environmental risk. At the same time I acknowledge that it is matter the responsible authority as to the particular legislation it relies on in addressing matters in carrying out its duties and responsibilities. Although I note that the penalties are less severe under the above Acts. I also note in the current proceedings before the Court that the council is an appropriate regulatory authority empowered to institute proceedings under the POEO Act. 32 Based on the evidence, in particular the site inspection in March this year this confirms to me the extremely large amount of material that has been accumulated and placed on the land. From the statements of the Council officers and their oral evidence in Court the items and material have been in more or less the same location since 2006. 33 The applicant expressed concern about entry to her property by trespass and the lawfulness and authenticity of the photographs taken by the council offices including the inconsistency with the sets of printouts with a date imprinted within the frame on some and without on others. However, based on the provisions of the POEO Act I accept Mr Warren's submission that the Council officers have powers of entry under the POEO Act. However, I do not need to rely on the photographs to conclude that there is an extraordinary and significant amount of material stored on the property. 34 While the applicant claims the materials are for the purposes of art work, hobbies, the construction of a future dwelling and other purposes, the definition of waste is broad in the dictionary to the POEO Act and includes "any substance…deposited in the environment in such volume, constituency or manner to cause an alteration in the environment" Furthermore, a substance is not precluded from being waste for the purpose of this Act merely because "it is or may be processed, recycled, re-used or recovered". And the definition of waste facility means any premises used for the storage…sorting or disposal of waste. Under the POEO Act I find that the amount of material stored on this property constitutes waste. 35 The fact that the applicant proposes in the future to use/ recycle this voluminous amount of material is not the test and does not exempt it from the definition of waste under the POEO Act. While the applicant may not have intended to use of the land as a waste facility however in my determination it must be categorized as such because of the accumulation and the extraordinary amount of material / waste that is well in excess of the needs of a household and there is no development approval for use of the land. I therefore find that the property is being used as a waste facility without approval. 36 The photographs in Figures 3 to 8 attached only serve to confirm examples of what I saw on the site inspection as opposed to relying on their inclusion in the council officers' statements. The applicant provided photographs of other properties, including council owned land, to show items subject to rusting and corrosion, however, these are not matters that are relevant to my consideration in these proceedings. 37 From the site inspection it was also evident that many of the items had been subject to weathering and I also observed many metal objects including old unregistered vehicles. The fact that there is no scientific evidence of pollution or environmental affects is not the test. Similarly the fact that there may be an absence of acid sulphate soils or ecologically endangered communities are not the relevant tests. The test in s.95 does not necessarily require proof / scientific evidence of a pollution incident but it is sufficient if it is "likely to cause" or "is not carried on …to prevent, control or minimize pollution". I find that the activity is being carried out in an environmentally unsatisfactory manner. 38 The applicant's submission on the "tort of conversion" or the fact that beauty is in the eye of the beholder, or put simply one person's trash is another person's treasure, are not relevant to my determination of this appeal where I must consider the relevant statutory provisions including the broad definition of waste. 39 Section 95 does not require scientific evidence of pollution but the meaning of environmentally unsatisfactory manner means that if the activity may cause pollution this is sufficient to qualify for a preventative action and a notice to be issued under section 96. Other examples of preventative action under sub-clause (3) include: preparing and carrying out a plan of action to control prevent or minimise pollution or waste; and action with respect to storage or disposal of any waste or other substance. 40 On the applicant's own evidence o the Bateman's Marine Park, the site is in the vicinity of sensitive coastal lands that adjoin the marine park as shown at Figure 1. Clearly, the unreasonable accumulation of large amounts of waste, on the subject land does not comply with an activity being carried out in an environmentally satisfactory manner where from the site inspection many so called building materials such as the large round particle boards have weathered beyond use and many metal objects have corroded/ rusted. In my assessment the activity "is likely" to cause a pollution incident and is being carried out in an environmentally unsatisfactory manner. I do not need to find that the activity has caused pollution under the POEO Act. 41 While I find the property is being used as a waste facility without approval because of the vast amount of material being stored and the environmentally unsatisfactory manner of it being stored on the land I consider based on the evidence that the prevention notice should be varied. 42 The respondent agreed that the Court has wide powers in the determination of the appeal. In the circumstances of this case, having regard to the age and health of the applicant and the desire to construct a dwelling on the subject land in the future, although no plans have been submitted to council, I have decided that it is reasonable to allow a limited amount and selected items to remain on the land subject to this being contained within a fenced/cordoned off area of a footprint of 10 metres by 10 metres, to be approved by the council, and the manner in which the materials are stored is to be in an environmentally satisfactory manner.. That is items that are not likely to cause environmental concerns or a pollution incident, and that could be reasonably considered to provide material for artwork, and materials for the construction of a dwelling house on the subject land. In addition to the 10x10metre area the only other items to remain on the land are: the bricks and pavers; the ride-on lawn mower; and two caravans. 43 As such, in order that the environment is not put at risk by the potential of items to cause pollution, and/or environmental harm all materials that contain substances likely to pollute, should generally be removed from the site. No unregistered cars and or vehicles are to remain on the land. The reason why I am allowing the caravans, whilst currently not in a condition for occupation at the same time, they could provide storage for certain items that if left in the open would be more subject to weathering. All other materials/goods are to be organized and contained within a 10 x 10 m footprint to be approved by council. 44 To assist in the above being carried out in a timely and orderly manner the applicant is required to prepare a plan of waste removal to be submitted to the council for its approval, and the material/waste, that is not exempt as itemized above is to be removed by the 30 April 2011. 45 In my determination of this appeal I have had regard to the applicant's wish to have a place to store art and building material. However, such storage must be controlled and reasonable and the provisions of the POEO Act under which the notice was given must be appropriately implemented as it embraces the public interest to protect the environment and have regard to the object of ecologically sustainable development. 46 An action plan for the removal is to be submitted by the applicant to council by 15 October 2010 and approved by council. It is also necessary for monitoring and subclause 5 of section 96 provides: a prevention notice may require the person to whom the notice is given to furnish reports to the appropriate regulatory authority regarding progress on carrying out the action required to be taken by the notice. 47 Accordingly the notice is varied to allow certain items to remain on site and for a timetable for the removal in an appropriate manner of all the other material /waste currently on the land. The timetable requires all the material, except that which is exempt as described above, to be completed by 30 April 2011. The staged removal is to be documented in a report to be submitted by the applicant to the local council for approval by 15 October 2010 together with the 10 x 10 footprint for the storage area. The report is to provide a timetable for the removal of the waste with the need for a monitoring report to be submitted by the applicant to the council on the 1st day of each month commencing 1 December.

Gerondal v Eurobodalla Shire Council

At a glance

Court

Decision date

Source

Judgment (17 paragraphs)

Parties

Cited By (3)