Moore v Corowa Shire Council [2009] NSWLEC 59 | Case summary

(a) the operation by the Council of its sewerage treatment plant ("STP") in Mulwala, (b) the use by the Council of an open drain/channel across his land for disposal of material from the plant, destined for discharge into the Murray River some 2.3km from the STP, and (c) claimed breaches by the Council of the Protection of the Environment Operations Act 1997 (" POEO Act ") in respect of pollution of waters and emission of odours in/from the plant and the channel. 2 Mr Moore relies on the standing granted by s253 of the POEO Act. He originally claimed that he had brought these proceedings not only on his own behalf, but also in the public interest, but the Council denies that, and in his oral evidence Mr Moore retreated from that claim (see T 5.11.08, p38, L38 to p39, L17). His real concern is that the land he owns adjacent to the STP ("the subject land"), through part of which the drain/channel runs, cannot now be developed profitably, because, the Council has recently imposed a 400m buffer zone around the STP site, within which radius it will not approve residential development (Exhibit M7). Naturally Mr Moore is opposed to the 400 metre buffer. He bought the subject land for a profit-making purpose, and believes he should be able to put houses on that land, if the STP satisfies statutory pollution standards (T 5.11.08, p36 LL5-10). 3 Nonetheless, the court accepts that Mr Moore is a citizen seeking to enforce Council's public duty to protect the environment and prevent/minimise pollution. His proceedings (briefly stated) seek (three) declarations in respect of breaches of ss 120 and 129 of the POEO Act, plus an order restraining the Council from any works not in accordance with those declarations, and specific orders that Council do "all things necessary to prevent" both "the emission of offensive odour" and "the discharge of pollution" from "the premises" to which Council's Environment Protection Licence ("EPL") No.814 applies. 4 It is alleged by Mr Moore that the Council has breached the conditions of its EPL frequently over at least an eight year period during which pollution records have been kept. Records are also kept of complaints (see Exhibit M4), and a "page 9" is submitted in respect of each non-compliance with the conditions of the EPL. 5 The difficulty for Mr Moore is that his case came on for hearing after Council began commissioning a completely new STP adjacent to the old plant, indeed on the site of the old plant's Effluent Pond No.1 (see Exhibit C1, tab 42, fig 4.1, and Exhibit C2), but designed not to function like the old, and not to repeat its failures. 6 Council contends that the redevelopment of its STP should be successful in terms of reduced pollution, as similar works have been elsewhere (e.g. Bellingen and Blayney - see Exhibit C4). 7 The original STP was constructed for the Commonwealth in the 1940's (there being nearby what was then referred to as a "small arms" factory, on what is now known as the Australian Defence Industries ("ADI") site). It was designed for a human population of no more than 1,900 "equivalent persons" ("EP") (Exhibit C1, tab 63). It was upgraded in about 1967, when sewer services were provided to the general Mulwala population, and sold to the Council. During the 1970's a need to further upgrade it emerged, and ten studies were done between 1988 and 2004. In 1998 Council advised the EPA of its intention to upgrade STP facilities at Mulwala. 8 An EPL has been in place since before 1994, but the current one under the POEO Act since approximately 2000. EPLs are subject to at least three-yearly, if not annual, review, but remain in force until suspended or revoked by the Environment Protection Authority ("EPA", later the Department of Environment and Conservation, and the Department of Environment and Climate Change ("DEC")), or the Minister for the Environment. An EPL entrusts its licensee to "pollute", subject to payment of fees/levies and the observation of stated standards or limitations. See Environment Protection Authority v Shoalhaven Starches Pty Ltd [2003] NSWLEC 107, per Pearlman ChJ at [49], and Environment Protection Authority v Incitec Limited [2003] NSWLEC 381 per McClellan ChJ at [49]. All conditions of the EPL for Mulwala STP were complied with until 1994, but non-compliances were noted in 1996 and since. In recent years a Pollution Reduction Programme ("PRP") was attached to the EPL held by the Mulwala STP. 9 Mr Moore asserts (Points of Claim par 3) that the Council is the "occupier" of the "Mulwala Sewage Treatment System", which he defines to include both the plant and the channel. Council contends that the EPL applies only to the plant, and not the channel (c.f. Environment Protection Authority v Shoalhaven Starches Pty Ltd [2006] NSWLEC 496, where both the works and its associated farm were licensed). The use of titles such as "works" and "system", as well as "plant", and the occasional misuse of the words "sewage" (strictly the waste matter) and/or "sewerage" (the process or the system for removal of that waste), have added some confusion in my assessing the evidence before the court. For example, the variation of the EPL in Exhibit C1 (tab 16A) talks of the sewage treatment "plant", but the EPL itself is issued in respect of the "works", and the scheduled activity is described as "sewage treatment systems". 10 The channel runs for 650 metres and traverses part of the subject land (known as "Lot 2" - see [24] below), and carries for eventual disposal in the Murray River treated effluent discharged by the STP. The drain's discharge point to the Murray River is approximately 2.3km downstream of the plant. Some of the channel across the land is fenced and some is open. Moore says it is currently dammed to prevent "flushing", with the result that it is being used only to drain sewage effluent. State and local authorities recognise that the channel has safety and visual amenity concerns (see Exhibit C1, tab 44). Council has an easement over Lot 2 only to "drain water", and not to drain sewage, effluent or polluted water (see Exhibit M2, and T 5.11.08, pp 7-8). Moore steadfastly asserts that Council has never had a right to discharge treated effluent into the drainage channel. 11 "Polluted water" signs have been displayed for eight years (T 5.11.08, p28, L1-2) on the public roadside boundary of the subject land, where the drain runs in a culvert under Wanani Road not far from the Applicant's home, and near a constructed wetland area behind the houses on his side of the road near the golf course, on its way to the Murray River (Exhibit C1, tab 62, p66). The ponding in the wetland area backs up behind Mr Moore's home (see photos in Exhibit M8 and Exhibit M9). 12 Now that the new STP is operational, although commissioning may take two years, major works are intended for the channel, notably construction of two pipelines, one for stormwater and one for treated effluent from the plant, to be covered by a grass swale to accommodate any excessive stormwater (see Exhibit C3). The proposed effluent pipe would extend some 20m beyond the rear of the houses on Moore's side of the road, but probably not to the wetland. In late November 2006, Council commenced negotiations with Mr Moore (which the State Property Authority is continuing) for the acquisition of some of the subject land and an appropriate easement to facilitate these works (see Exhibit 'N' to Mr Moore's affidavit of 1 August 2007, and also Exhibit C1, tabs 90-93). The prayers for relief 13 In his class 4 application the Applicant claims the following relief: "1. A declaration that the Respondent is in breach of s129(1) of the Protection of the Environment Operations Act 1997. 2. A declaration that the Respondent in using the channel across the Applicant's land for the disposal of material from the Mulwala STP, is in breach of s129(1) of the Protection of the Environment Operations Act 1997. 3. A declaration that the Respondent, in using the channel across the Applicant's land, is in breach of s120 of the Protection of the Environment Operations Act 1997. 4. An order that the Respondent be restrained from carrying out any works, by itself, its servants, agents or contractors except in accordance with the declarations made by this Honourable Court. 5. An Order that the Respondent does all things necessary to prevent the emission of offensive odour from the premises. 6. An Order that the Respondent does all things necessary to prevent the discharge of pollution from the premises. 7. Costs. 8. Such other orders as the Court thinks fit." The relevant statutory provisions 14 The relevant provisions of the POEO Act are as follows: " 120 Prohibition of pollution of waters (1) A person who pollutes any waters is guilty of an offence. (2) In this section: pollute waters includes cause or permit any waters to be polluted.

" waters " means the whole or any part of: (a) any river, stream, lake, lagoon, swamp, wetlands, unconfined surface water, natural or artificial watercourse, dam or tidal waters (including the sea), or (b) any water stored in artificial works, any water in water mains, water pipes or water channels, or any underground or artesian water." 16 Schedule 1 Part 1 includes among "premises-based activities" the following: " 36 Sewage treatment (1) This clause applies to "sewage treatment", meaning the operation of sewage treatment systems (including the treatment works, pumping stations, sewage overflow structures and the reticulation system) that involve the discharge or likely discharge of wastes or by-products to land or waters. (2) The activity to which this clause applies is declared to be a scheduled activity if it has a processing capacity that exceeds: (a) 2,500 persons equivalent, as determined in accordance with guidelines established by an EPA Gazettal notice, or (b) 750 kilolitres per day, whichever is the greater ". The points of claim and defence 17 In respect of the first prayer for relief concerning odour, the Applicant's Points of Claim assert that the Council has operated the STP in breach of s129(1); that the upgrade will allow the continued emission of offensive odours from the STP and possibly the channel; and that the Council will continue to breach s129(1) unless restrained by an order of the court requiring Council to do all things necessary to remedy and/or prevent the emission of offensive odours from the STP and its discharge system. 18 In respect of the "pollute waters" claim under s120, Mr Baird said on the Applicant's behalf (T 6.11.08, p2, L47-48), that Council had "clearly placed into waters something that ought not to have been there". The Points of Claim assert that the discharge from the STP through the channel, being a "watercourse" leading to the "waters" of the Murray River, does not meet the existing licence requirements of EPL 814; that the easement across the subject land provides only for the discharge of water and not treated effluent or polluted waters; that the discharge of this effluent from the STP poses environmental and public health concerns for the community of Mulwala and other downstream users; and that, as a consequence, Council has at all material times caused or permitted the emission of polluted waters from its licensed premises in breach of s120 of the POEO Act and continues to do so. (The new STP will continue the use of the water channel to get waste water to the Murray River, but will do so by pipe rather than open drain, with better treatment of the water prior to discharge). 19 Mr Baird emphasised that Mr Moore was not seeking declarations, in terms, that Council was "guilty of criminal offences" created by s120 and s129. 20 The Points of Defence rely on the advent of the new STP as a solution to any breaches (all of which the Points of Defence denied), and on the principles of discretion to cause the court to decline to grant the relief sought by the Applicant. To the extent that the relief sought by the Applicant would have required the pre-2008 STP to cease operation prior to the completion of the augmentation works, the result would be to deprive Mulwala of its only sewage treatment facility with significant detrimental consequences for public health and the environment, a result the court should not cause. 21 The Respondent also asserts that the terms of the easement are not relevant to the claims made by the Applicant in these proceedings, and that any pollution of waters resulting from the operation of the STP is authorised by the EPL. 22 The discretion argument pleaded relies on the "significant improvement in the quality of treated effluent discharged from the STP", post-commissioning. The Evidence The Moores, the STP and the subject land 23 Mr Moore and his wife are former schoolteachers who settled in the Mulwala area in 1975. They own, as joint tenants, and reside at, No.47 Wanani Road, Mulwala, having bought that land in 1982 and constructed a home on it in 1986 or 1987. That home is located some distance from the local STP - the evidence indicates the house is located some 450 metres from the nearest boundary of the site of the STP and some 550 metres from the centre of the plant itself. 24 The Moores also own the house at No.48B Wanani Road, and in 1993 they purchased the subject land, which is an irregular area of land (approximately 50 acres and comprising two lots - "Lot 71" DP 255581 and "Lot 2" DP 600675), mostly located generally between the STP and the rear of the dwellings across the road from the Moore home, but also including a narrow strip of land behind that home. The land had been approved for the development of an eleven-block subdivision and mention was made of a proposed resort. The subject land generally adjoins on three sides the land on which both the old and the recently commissioned replacement STP are located. Mr Moore says that it was clear at the time he and his wife purchased that land that the STP was to be relocated (T 5.11.08, p37). "Discussions and consultation with the community have been on-going since that time" (Mr Moore's affidavit 1 August 2007, par 5). The community supported the relocation of the STP to another site. 25 The STP is located in a rural residential area zoned 1(c) Rural Small Holdings under Corowa LEP 1989, south-west of town and bordered by the ADI site to the north, Mulwala golf course to the south, and residential development to the west, is conducted by the Respondent Council and is "scheduled premises" licensed under the POEO Act (EPL No 814). There is a high demand in the local area for good residential development land and the subject land is close for example to a major golf club. It is, therefore, regarded as prime urban land. 26 Odour from the pre-2008 STP impacted on residences within 200 metres, the nearest houses along Wanani Road being 150-200 metres away. The way in which that STP operated is set out in Exhibit C1, tab 7. Regulation of the STP 27 The Applicant alleges that the Council was at all times well aware that the STP was inadequate to cope with the community's needs, but was very slow to act, and did not seek to moderate the stringent EPL conditions which it consistently breached. There is some implied criticism of the failure of the EPA and the Department of Health to intervene, and there is certainly evidence that State government agencies were on notice of complaints about, and non-compliances at, the STP since at least 1994 (Exhibit C1, tab A ff), and that the NSW Public Works department (later known as the Department of Commerce) investigated augmentation of the STP in 1988. 28 The EPA sought a PRP (see [8] above) from late 2000, together with a "Load Reduction Agreement ("LRA")" at Mulwala STP, and Council agreed to a five year PRP on 12 June 2001 to operate from 1 July 2001 (see Exhibit C1, tab 6), with a three year LRA to run from the end of year two of the PRP or from the approval of the Environmental Impact Statement ("EIS") for a new STP. The EPL was varied in November 2002 to reflect the agreement on the PRP, effective 1 October 2002 (see Exhibit C1, tabs 16A and 16B) - "The Mulwala sewage treatment plant is overloaded and incapable of treating sewage to modern standards". (It was designed for 1900 EP, but had a non-holiday peak load of 2867 EP and a holiday peak load of 4406 EP in 2005 - see Exhibit C1, tab 42, pES2). The EPL conditions require compliance with s120 and prescribe load limits for "assessable pollutants" (which attract fees). Load limits under the PRP commenced 20 January 2002 (see Exhibit C1, tab 13) and the upgrade was due by 1 July 2006 (later extended - see [33] below). 29 On 28 July 2003 the EPA advised Council that its EPL would be brought into conformity with a model licence developed for regional sewerage treatment systems generally (see Exhibit C1, tab 25). It noted that the POEO Act expanded licences to cover whole "sewerage treatment systems" including the treatment plant, the reticulation system and "any discharges from systems such as pumping stations and sewer overflows". 30 All licences were varied "to incorporate the new system requirements which include: · operating the reticulation system in a proper and efficient manner, to minimise sewer overflows; · recording all bypasses and sewer overflows that the licensee becomes aware of; · notifying the public of overflows or bypasses that may have public health impacts; and · cleaning up any sewer overflows that do occur (as much as is practicable)." Replacement of the STP 31 Long consideration was given to possible relocation, redesign or redevelopment of the Mulwala STP from 1995 (see generally Exhibit C1, tab 29A, fol 821). The EPA appears to have accepted from at least 1996 that Council managed the old overloaded works as well as possible, and that a total "rebuild" was the "only option", and to have noted Council's active consideration of that option from at least 1998. 32 An EIS in 1996 recommended that the STP not be at the current site due to the proximity of residences and the sandy base. In July 2001 a "strategy study" identified several options, and several were explored, with possible relocation to the ADI site having been abandoned in 1999. The Council ultimately decided in May 2004 (see Exhibit C1, tab 30) after reconsidering the ADI option, to augment or redevelop the STP on the original site (rather than a new site in Mulwala's industrial area), with an "activated sludge treatment plant" - trickling filters administering biological secondary treatment were to be decommissioned in favour of an Intermittent Decanted Extended Aeration ("IDEA") System which uses an aerobic process expected to significantly reduce odours, rather than the conventional odour-prone anaerobic digestion facilities used in treatment of sludge at the old STP. Some considerations of available government subsidy were clearly involved in that decision - the evidence suggests that the NSW government would subsidise only the cheapest option, namely redevelopment on existing site (Exhibit C1, tab 17). 33 Council recognised that its 2004 decision might take four years to reach finalisation, which would be two years beyond the EPA deadline in the EPL/PRP, and successfully had it extended (on 22 June 2004 for the EPL and 15 November 2004 for the PRP), to 1 July 2008 (Exhibit C1, tabs 31 and 32). On 11 June 2004 Council told DEC that its aim with the upgrade was to meet all EPA water and air standards, and end the pollution caused by the old STP, and on 22 June 2004 DEC/EPA, when granting the extended deadline, asked for clear goals to be set, against which progress could be measured. 34 On 8 June 2004 the Council held a public meeting in Mulwala to better inform the community about its decision to choose the "new plant on existing site" option over the three others it had considered (NEW at Yarrawonga, ADI, and an industrial site). It provided attendees with a concise document providing background to its resolution of 18 May 2004 (see Exhibit 'K' to Moore's affidavit of 1 August 2007), including the advantages and disadvantages of each option. Of the chosen option it said this: New Plant on Existing site Advantages: · Least cost · Known process · Existing use of same site · High quality effluent · Short transport distance to plant and river · Adjacent Golf Club potential reuse site · Council control Disadvantages: · Proximity to residential development · Restricts land development although site is only suitable for recreation use, not residential". 35 That document also set out some alternative costings to confirm that the preferred option was substantially cheaper for Council (and the subsidising State government) than the others. 36 The Department of Commerce's final Concept Report for the redevelopment was produced for Council in June 2005. It recognised potential, but significantly reduced, odour problems associated with the augmentation project, acknowledged the need for effective odour management, and referred to a number of measures to manage impacts within a 400 metre radius of the STP (see Exhibit C1, tab 42, pp 83f). The Department published a Review of Environmental Factors in March 2006 and also acknowledged that temporary works on the project might add to odour impacts (Exhibit C1, tabs 54-55). 37 The EIS, which went on exhibition in June/July 2006, identified various options to deal with the impact of odours on surrounding residents and land, and noted that it was Council's intention not to approve residential development within 400 metres of the augmented STP. It was suggested that the subject land might be developed as an extension of the Mulwala golf course, but those comments do not take into account (1) that it is zoned residential, (2) that it has already been the subject of development approvals, (3) that there is already residential development within 400 metres, and (4) that Moore categorically denied any such arrangement (Exhibit C1, tab 68A). 38 The departmental approvals granted for the new STP in August/September 2006 were specifically conditional upon finalisation and approval of odour control measures. The DEC (Exhibit C1, tab 67A) had, in its review of the EIS on 21 July 2006, expressed some concerns about the STP's "history of odour issues" and the uncertainty of how much better the performance of the new plant would be in this regard. On 31 August 2006 DEC reminded Council of its obligations under s129 regarding odour (Exhibit C1, tab 70). In its Points of Defence (at par 16) the Council refers to odour measures incorporated in the design, additional to those mentioned in the EIS. 39 The government subsidy was approved on 27 November 2006 (Exhibit C1, tab 82) and the upgrade works worth in excess of $7 million (with the final cost expected to be approximately $10 million) substantially commenced in July 2007, by which time the EPA required it as a matter of urgency. Commissioning commenced on 23 September 2008. At the time of this hearing in early November 2008, the old plant had been closed, but commissioning of the new plant was still in process and it was not yet fully operational. The estimate was that it would take some 80 days to be fully operational, but that the sludge management processes may take a total of 18 months from September 2008 to be fully implemented. 40 The augmentation project has the following features (Exhibit C1, tab 71. See also tab 42, p35, and Mr Baird's submissions at par 20): · "Provision of an inlet works for automatic screening, grit removal and measurement of sewage inflows to the plant. · Provision of an activated sludge based biological secondary treatment process with a capacity of 7840 Equivalent Persons (EP). · Provision of a chemical dosing system for phosphorus removal. · Provision of an Ultra Violet (UV) unit for disinfection of effluent prior to discharge. · Provision of a soil deodorisation bed for treatment of odour from the inlet works. · Stormwater channel modification to improve aesthetics. · Abandon and eventually demolish the existing trickling filter plant." 41 As the Council's Engineering Services Report dated 27 June 2005 (Exhibit C1, tab 43, p1) said: " The main features of the concept design are: · effluent water quality meets EPA requirement · the aerobic treatment process produces clean air · site arrangement and process equipment designed to control noise · minimises visual impact of plant on environment · site arrangement allows future development of golf course around treatment plant · plant has 25 year design life based on 2.5% growth rate · site arrangement allows for future duplication of plant" 42 In short, the "augmentation" was really a total replacement of the STP, and the new STP uses state-of-the-art technology and is designed for 7,840 EP (See [7], [28], and Exhibit C1, tab 42, p ES2). Helpfully the Council's solicitors prepared for the court a comprehensive comparison of the new and old plants, their processes, and impacts (see pp 16-28 of submissions 6 November 2008). Counsel for the Applicant appeared to accept that analysis, and the court is satisfied of the high quality of the project. The channel and the future use of the subject land 43 To dispose of treated effluent the new STP will use the same drainage channel to the Murray River, but the effluent will discharge through an enclosed pipeline within the channel (see [18] above). The pipeline has not yet been constructed (see Exhibit C1, tab 42, fig 5.1). (The Applicant had indicated a desire for the Respondent not to enter his land without consent, and the Respondent did not wish to inflame issues between the parties by exercising powers of entry during these proceedings). 44 In making its final decision to upgrade/replace the STP on its long established site, the Council imposed a 400 metre "buffer zone". A buffer of that size is not mandatory and many similar plants operate with less (see Exhibit C1, tab 12, p12). It must be noted that the 400 metre buffer zone has no statutory basis. It does not appear in any statute, regulation, or relevant planning instrument. It is apparently suggested in a Department of Planning Circular (query Circular "E3"), which is not in evidence. 45 The Applicant expressed the view that the imposition of the buffer constitutes an admission by Council that anything within that radius will remain adversely impacted by odours from the STP. He complains that instead of dealing technically with any STP problems, to prevent impacts, Council adopted the buffer policy as a management practice to control them. In any event, Council effectively precludes development of about 40 acres of prime residential land owned by the Moores, despite the presence currently of residences at approximately 150 metres. It remains a matter of conjecture as to whether Council should or will acquire any of the land within the zone - it is said to be "both impractical and politically/socially unsatisfactory" (Exhibit C1, tab 42, p22) - and/or facilitate its development as additional golf links. 46 These proceedings rest upon Mr Moore's complaint that the works and the associated facilities "pollute waters" and cause "offensive odours". He contends that the Council must have expected "offensive odour" impacts from the new works beyond the area of the plant and is concerned that the upgrade will not meet the regulator's requirements and tests. It would appear to the Applicant that the Council considered that it could meet those tests only because it has excluded development within the 400 metre buffer zone. The obligation was that there be no offensive odour generated beyond the boundary of the plant site. The EPL and the water pollution evidence 47 The EPL is, as the POEO Act makes clear, "premises based", so I do not accept the Applicant's submission that the court should hold that its application extends beyond the actual plant/works, such as to hold that it covers the channel (see especially, the definition in Condition A2.1 of the EPL, at Exhibit C1, tab 16A), despite references in the operating conditions to an obligation to maintain plant and equipment which includes "drainage systems". Those conditions require all the equipment etc. which they cover to be either "installed at the premises or used in connection with the licensed activity" (Exhibit C1, tab 16A). In the second Shoalhaven Starches case to which I have referred (2006 - see [9] above) it was significant that a separate licence applied to the adjunct facility (the farm in that case) equivalent to the adjunct drainage channel in this case. What discharges in this case, in accordance with the EPL, from the plant into the channel (whether it contains waters at the time or not), is "effluent", ie sewage which has completed all the designated treatment processes in the plant itself viewed as a whole, but exclusive of the channel, where no licensed activities take place (Exhibit C1, tab 16A). 48 The EPL in this matter is very detailed as to load limits discharged, and specific as to "assessable pollutants" - biochemical oxygen demand (BOD), oil and grease, total nitrogen, total phosphorus, and total suspended solids (SS). Concentration limits are set for specific discharge points, and a sampling regime is prescribed. Complaints are to be recorded (see Exhibit M4). Non-compliances were carefully noted from at least 2000. 49 The EPA/EPL set a deadline of 1 July 2006 (later extended to 1 July 2008) for completion of the upgraded STP. The PRP set additional discharge limits, namely for ammonia, phosphorus and faecal coliforms. 50 The 2006 EIS noted the STP's exceedences of the Sensitive Water Standards (Exhibit C1, tab 62, p67) to be 2.5 times for BOD, 3 times for total Nitrogen, 8 times for SS, and almost 33 times for total phosphorus. 51 Council is obliged to submit annual returns to the EPA, and those returns identify consistent and repeated breaches of the EPL requirements over the period 1 February 2001 to 31 January 2008 (see Exhibit C1, tabs 24A, 26, 25B, 40A, 57, 86, and Exhibit M3). In his written submissions, Mr Baird, counsel for the Applicant, has collected the key results in tables covering 10 pages, (pars 39-52), and he submits that in each year 6 to 9 out of 13 standards were breached. 52 The returns' normal specification for "cause" was "plant overloaded"; they normally left "mitigate effects" blank; and they responded to "prevent recurrence" with "constructing new plant". In the return to 31 January 2008 (Exhibit M3) there is a report on "chlorine" where the responses are (1) "cause" - "licenced (sic) conditions not achievable", (2) "mitigate effects" - "faecal coliform counts monitored to confirm suitable disinfection", and (3) "prevent recurrence" - "constructing new plant". The odour evidence 53 Mr Moore has clearly detected odours that he found "offensive", which he says emanated from three different sources - the STP itself, the channel, and the pond or wetland areas behind his house - and he was quite specific about his identification of each. His case is that all are the result of STP operations which necessarily involve discharges into the channel which leads to the wetlands and ponding area. Odour cannot be otherwise explained - odour either came from the STP premises, or from the effluent discharged from the STP, or from the impact of discharged chlorine on algae in the channel. 54 Other "complaints" about odour from the STP can be found in the documentary evidence (Exhibit C1, Exhibit M3, and Exhibit M4). An "index" to them can be found in par 68 of Mr Baird's written submissions. They were not contested by Council, but Mr Baird says they concern "a stink not a smell" (submissions par 114). A complaint by Ann Ryan in December 2000 said "problems" had existed for "the last 20 years" (Exhibit C1, tab 4A). At least one complainant (Brown of 7 Wanani Road) is located closer to the plant than the Moore home, but there is no clear evidence as to the precise source of the odour in each complaint, other than any which refer to the "rotting vegetation" incident in late September 2006, which involved the channel. The offending vegetation was "breaking down and generating rotten egg gas odour (hydrogen sulphide) which is impacting significantly on the residential neighbourhood". Mr Moore complains that following that, a lot of unsatisfactory smelly material was "dumped to drain" on the solid soil near the channel. Rectification of the odour problem itself caused odour (see Exhibit C1, tabs 80-81). 55 Mr Moore gave evidence that on one occasion a neighbourhood barbeque had to be abandoned at the blue house No.24 because of odour from the channel. Local residents have to turn off their air-conditioning units because evaporative-type equipment brings the odours into the house. Mr Moore testified that he and others held off complaining during the time when they were satisfied that the Council was considering the plant going elsewhere. He also complained about mosquitoes (T 5.11.08, p35, L11-13). He does not contend that the odour from the works and/or the channel is "harmful", but he does contend that it is "inherently unpleasant and offensive" and interferes with the comfort or repose of persons outside the STP premises. He has found the smell from the plant is "putrid and suffocating" (T 5.11.08, p24, L4). 56 The EIS dealt with odour impacts, and the DEC was somewhat critical of it (see Exhibit C1, tabs 46A, 66, and, particularly, 67A, dated 21 July 2006). 57 Odour/air quality consultant/expert Dr Kerry Holmes of Holmes Air Services was retained by the Applicant for the purpose of these proceedings, but her company (through Judith Cox) had done some work for the Council in 2006 in respect of its consideration of redevelopment/relocation of the plant. The 2006 Holmes company's report formed part of the EIS prepared by the Department of Commerce on behalf of the Council (see Exhibit C1, tab 63). Although Dr Holmes was not appointed as a parties' single expert, she appears to have been accepted as an appropriate independent expert by the Council for the purposes of this case, as it brought to court no expert of its own. 58 For the purpose of the hearing, Dr Holmes inspected the subject plant on 21 July 2008, and her August 2008 report is before the court as Exhibit M5. She gave oral evidence (T 5.11.08, pp16-20), but was not cross-examined on behalf of the Council. She marked on Exhibit M1 a location on the road approaching the entrance to the STP at which she detected odour on 21 July 2008 (T 5.11.08, p17, L1-26). She also marked up an aerial photograph (Exhibit M6, c.f. Figure 1 of Exhibit M5) to illustrate the predicted 99 percentile odour level, old and new. The modelling demonstrates a clear improvement in odour impact, on DEC criteria (T 5.11.08, p18, L21-42, and Exhibit C1, tab 63, p13, table 7). She also gave evidence regarding testing required at the new plant, and her modelling techniques etc. 59 Dr Holmes testifies that odours like sewage "are likely to be judged offensive regardless of the context in which they occur" (Exhibit M5, p4). It is a characteristic of sewerage works that there is nearby a smell with offensive characteristics, and local receptors may find that smell "offensive, putrid or suffocating". Seven odour units at the 99 percentile would be acceptable to the average person, but as the number of exposed people increases, there is a chance that sensitive individuals would be exposed. The criterion of two odour units at the 99 percentile is considered to be acceptable for the whole population (Exhibit M5, p4). Dr Holmes opines that it is very likely there will be a reduction in odour from the augmented plant "mainly due to the replacement of the most odorous sources such as the trickling filter with inherently less odorous sources such as the aeration tanks and the containment of some of the sources, such as the inlet works" (p6, s6). 60 She further opines (p7, s7) regarding sewage smells that "the nature of the odour is inherently unpleasant but that in itself does not constitute offensiveness, unless it occurs with sufficient strength, frequency and duration. However based on my experience it is likely that the nearest residences could detect odour from time to time and may find the odour offensive". She is firmly of the opinion that the new plant will lead to a decrease in odour, but not its total elimination. "The quality of the odour emitted is likely to be less unpleasant than the existing plant, as the inlet works will be covered and the tricking (sic) filter removed. However there will still be residual odour which has the potential to be offensive". The DEC acknowledged this potential (Exhibit C1, tab 67A). The degree of post development odour cannot be determined without further work, including the collection of on-site meteorological data and the measurement of odour sources when the new plant is fully operational (see Exhibit M5, p7, s7, and T 5.11.08, pp 19-20). While there is some concern that her modelling might under-predict the odour from the new plant, there is no doubt it will be less than from the old plant. 61 Mr Moore conceded in his oral evidence that the odour nuisance has been lessened, but not eliminated, since the commencement of commissioning of the new equipment in September 2008 (T 5.11.08, p35, L16-21). Mr Astill could not get him to agree in cross-examination that the odours came from the channel, more so than from the works. He testified that the odours came from both (T 5.11.08, p38, L28), and that no other material enters the drain to cause the odour of which he complains. The stagnating pool is only 30 metres from the occupied residence at 48B. The Role of the EPA 62 Mr Moore's affidavit annexes some of his correspondence with the DEC. The court accepts that the EPA/DEC closely monitors the operation of the STP (e.g. see Exhibit C1, tabs 11A, 24, and 33 regarding the old STP). In early 2007 Mr Moore and the EPA corresponded, in particular, about the odour generated by the ponding near the golf course (see Exhibit C1, tabs 84-5, and T 5.11.08, p35, L11-13), and the EPA, while responsive (tab 84), seemed powerless to assist. 63 At no stage did the EPA find it appropriate to issue any kind of environment protection notice or to otherwise instigate any enforcement action against the Respondent in respect of the old STP. Several of the annual returns for licence 814 report non-compliances with licence conditions and specify overloading of the STP, and go on merely to indicate that a new STP is to be constructed. The EPA has accepted that explanation, noting as early as 1996 that the plant was "very overloaded with little that can be done except rebuild", and expressing the view that despite its problems the plant was "managed as well as possible". Consideration 64 The court had the benefit of a visit to Mulwala, and inspections of the subject land and surrounding areas, the remnants of the old STP, and the operation of the new STP. 65 Relationships between the parties to these proceedings have been strained over many years. Apart from the working of the STP, these proceedings themselves, and the related complaints by Mr Moore to the EPA and others about the STP, there have been disputes between the parties about alleged contamination (by Council?) of some of the subject land (see Exhibit C4), and about some earthworks done by Mr Moore on that land (issues raised in early 2006 - Exhibit C1, tab 47). 66 The court cannot be critical of the Council for accepting some delay in achieving its objective of moving or rebuilding the STP, while it awaited confirmation of the maximum possible State Government subsidy for such works. The government insisted on Council's adoption of the cheapest option (rebuilding rather than relocation), but there is evidence that Council tried to overcome the government's pressure to retain its STP on the existing site rather than relocate, relocation being the preferred option of Mr Moore and at least the nearby community. 67 Similarly the court can but note the position of the EPA - the performance of the STP against its EPL became unsatisfactory, but the cause was clearly the inadequacy of the facility, rather than any failures of the Council as its licensed operator, and the EPA was content for the Council (1) to make its best endeavours to avoid any deterioration in the STP's performance, (2) to accept the tightening of control and monitoring under the EPL, and (3) to proceed with the development of the new STP as soon as possible. 68 The court is satisfied, on the balance of probabilities, that in the past the STP, the channel, and the ponding at the end of the channel have emitted odours which many members of the public have found, or may have found, "offensive", and that in the past the STP has discharged to the channel, as the Council admitted at the hearing (contrary to its pleading - see [20]-[21] above), and in breach of s120, polluted waters beyond what the EPL allowed. 69 I am also satisfied, on the balance of probabilities, that in the future the STP itself may emit from time to time odours which some members of the public may find "offensive", and that, until the pipes are installed in the channel, the STP may discharge "polluted waters" into it. 70 Such is the nature of sewage treatment operations, but only odours from the licensed premises (the STP itself alone) can infringe s129. There is no evidence of any real or lasting "environmental harm" beyond odour. 71 The Applicant's case is that Council could and should have done more, and Mr Baird suggested, somewhat vaguely, that Council could and should have sought "more help" from the EPA to comply with its statutory and licence obligations. 72 The EPA regulated, and the Council operated, an essential community facility that was very old, outdated, and severely overloaded. 73 Mr Baird criticised Council's failure to convince the EPA to modify its licence conditions, but I see that as being to the credit of both bodies. 74 The delay in the redevelopment of the STP is regrettable, but the Council seems to have acted reasonably at all times, and the EPA was satisfied with Council's actions. Closure of the plant was simply not an option, and there is no evidence of mismanagement or failure to maintain, so I am not clear what else Council or the EPA could/should have done. 75 Council worked closely with the EPA on the operation of the old, and on the design outcomes for the new, and the new STP seems to be as good and adequate a facility as the court could expect. 76 Even if the past failures and shortcomings of the STP were seen to amount to breaches of s120 and s129 of the POEO Act, there is no evidence at all to satisfy the court at this time that any potential future shortcomings will do so, requiring the court to intervene in anticipation. Dr Holmes could say only that the residences closest to the new STP could in future detect odour from time to time and may find it offensive, but that the new STP would emit less odour than the old. 77 Mr Baird submits that Council adopted the 400m buffer as it expected the STP would continue to operate in breach of s129, but the evidence suggests only that it was adopted because it has come to be regarded as a standard or a guideline for regional sewage treatment works. Further, the Applicant himself said he does not expect the new STP to emit offensive odours, assuming it complies with EPA requirements - that is why he rejects the buffer and believes residential development should be allowed on the subject land, generally in accordance with the subdivision plan in Exhibit M7. 78 Likewise, the Council does not expect the new STP to emit "offensive" odour. If it does occur, the expert evidence (Exhibit M6 - the 2OU contour) indicates it will not go beyond the boundaries of the STP site. Council defends its adoption of the 400m buffer on the basis that residential developments are sensitive receptors to odour which should, as a planning consideration, rather than as a pollution control measure, be discouraged close to the STP. It submits that by construction of a completely new works, designed for a far greater population, and employing the very latest technology, it has done all it could reasonably do to ensure that the community's experience of the new will be fundamentally different from that of the old, and that the conservative/precautionary comments in the EIS and in some of the DEC documents simply indicate that nothing is one hundred percent certain. 79 I am not satisfied that the odour emitted in the past from the STP meets the test of "offensive". Only some of the odour the Applicant and some of the other complainants found "offensive" came from the works, as distinct from the channel or the ponding, neither of which is caught by the EPL, and none of it caused the adverse physical reactions the cases indicate are necessary to underpin a prosecution under s129. 80 One complainant as to offensiveness would be enough in a prosecution - see Environment Protection Authority v Cargill Australia Ltd [2004] NSWLEC 334 - but the offensiveness must manifest itself in adverse physical symptoms to the level of, for example, an upset stomach, gagging, queasiness and excess salivation - see Shoalhaven Starches 2006, especially at [28]-[54], and [179]-[180], and Jagot J's sentencing judgment [2006] NSWLEC 685 at [30]-[33]. The symptoms reported in this case do not reach the levels required, and the complaints were only occasional or spasmodic. The court has no doubt the odours the neighbours have experienced over the years have been unpleasant, irritating, even distressing, and socially unacceptable, but they were not "offensive" in the statutory sense. Conclusion 81 I conclude, therefore, that I could conceivably declare that the Council prior to September 2008 operated the Mulwala STP in breach of s120 (the third prayer for relief in [13] above), but not of s129, and that I could make no such declaration about the future operation of the (new) STP. 82 As any relevant breaches of the law are now in the past, there is no justification for any usual consequential relief, as the offending party (the Council) has already taken what the regulator (the EPA/DEC) saw as not only a reasonable approach, but really the only sensible and practical course to remedy the situation with the STP, and intends a similar reasonable remedial approach to the channel. 83 Council might justifiably be criticised for taking so long, but it was entitled, as an elected and accountable local government body, to wait its turn for the substantial government subsidy available from the State level. 84 Adapting what Cripps ChJ said in Liverpool City Council v Roads and Traffic Authority and Interlink Roads Pty Ltd ("Liverpool") (1991) 74 LGRA 265, at 277-281, a declaration "would serve no useful purpose", the courts do not "punish authorities under the guise of remedying a breach", there is "no practical utility in ordering … [the Council] to do what it has already been doing and says it will do in the future", and it is "now too late to make any significant remedial order and inappropriate to make a cosmetic order" or declaration. 85 The breach in Liverpool was not of a statute to which a penalty applied, but the breach complained of in Williams v Barrick Australia Limited (Williams") [2003] NSWLEC 218, (2003) 128 LGERA 80 could have been. 86 Bignold J warned in Williams against the civil courts making "bare declarations" about criminal offences, especially where the relevant conduct was "already past" and could not be undone, His Honour observing that there was "no utility" in granting such relief. His Honour went on to assess the evidence of the alleged breaches and was not satisfied they were substantiated. He then declined any relief, commenting specifically (at [146]) that if declaratory relief had been available it should be refused in the exercise of judicial discretion. 87 Fortified by those decisions of two eminent former judges of this court, in relevantly comparable situations, I decline to grant any relief to the Applicant, and must, therefore, dismiss his class 4 application. Orders 88 The orders of the court are:

The application is dismissed.
Costs are reserved.
All exhibits may be returned except Exhibit M5.

Moore v Corowa Shire Council

At a glance

Court

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Judgment (17 paragraphs)

Parties

Cases Cited (7)

Cited By (2)