Newcastle City Council v Leaway Pty Limited & Anor

J M Ireland QC (Appl) Sparke Helmore (Sol - Appl) LEGAL REPRESENTATIVES:

S Berveling (Resp) McDonald Johnson (Sol - Resp)

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

40284/04 NEWCASTLE CITY COUNCIL v LEAWAY PTY LIMITED & ANOR

JUDGMENT 1 HIS HONOUR: This matter comes before me this morning to consider whether the finding which I previously made that the respondents had committed a contempt, on which occasion I indicated that monetary penalty in a total sum of $50,000 would be appropriate, should now be confirmed. 2 The original proceedings came before me and in June last year I expressed the view that it was appropriate for injunctions to issue restraining the respondents from carrying on activities at the premises of 55 Throsby Street Wickham in breach of the conditions of development consent granted by the Council. 3 Although I was persuaded that orders were appropriate, on 29 June I suspended the operation of the orders until the end of August 2004. I took that course in order to provide the respondents with an opportunity to modify the way in which the business was conducted at the premises consider whether if they were able to relocate to more appropriate premises. 4 The orders became operative from 1 September 2004 and the Council, alleging a failure to comply with those orders, brought the current contempt proceedings. 5 My findings in relation to those proceedings and the reasons for them are recorded in my reasons for judgment delivered on 17 December 2004. On that occasion I indicated that the breaches which had occurred were serious. I further indicated that I was of the view that the breaches: "which have occurred have been knowing breaches over a continuing period of time, in circumstances where both respondents must have been aware that their activities were causing difficulties, inconvenience and serious intrusion into the amenity of some of the neighbours." 6 Bound as they were by the orders of the Court the respondent's responsibility was to ensure that those orders were obeyed. 7 I also said: "in that respect, they have failed and I am satisfied, without any doubt, that they have knowingly failed to meet their obligations. In those circumstances, in my opinion, it is appropriate to impose a penalty in a monetary sum which should be a total sum of $50,000." 8 On that occasion, after I had indicated my view in relation to the matter, an offer was forthcoming from the respondents which indicated an intention to alter the way in which the business was managed and operated, with a view to complying with the conditions imposed by the Council. In the hope that the offer would resolve the problems for the neighbours, I indicated that rather than proceed to impose an obligation to pay the identified penalty forthwith I would defer sentence in order to enable the respondents to carry out their offer. I also indicated I would review the situation after a period of three months when I would entertain an application that the respondents be relieved of either the whole or part of their obligations in relation to the penalty sum. It is that application which comes before me today. 9 Both parties have tendered evidence by affidavit from a number of persons. A number of local residents have given evidence but by agreement between the parties most have not been cross-examined. Evidence has also been tendered from council officers. 10 Of particular significance is an affidavit from Mr Tumney, who is a noise consultant. In that report, Mr Tumney indicates that from his survey the noise impact of the current activities at the premises has improved from the position which existed last year. However, although the noise position has improved the position in relation to vibration is little changed. He says of vibration: "There appears to have been an increase in the total number of events per day and those per day in excess of the noise control notice levels, and there also appears to be a slight reduction in the amplitude of vibration events. The apparent increase in event numbers is most likely a result of the variability of normal work patterns and the shorter survey period and is not considered significant at this time." 11 In his conclusions Mr Tumney says that it is likely that the improvement in audible noise impact is due to the presence of stockpiles of material within the building that form a barrier to the transmission of noise from within the premises. However, the stockpiles have little effect on vibration and although they force the excavator to move in a slightly different pattern the impact of vibration remains. 12 I am satisfied that that vibration impact imposes adverse and unacceptable impacts upon the amenity of adjoining properties. Of concern to the neighbours has been the receipt and storage of putrescible or what is sometimes referred to as green waste at the premises. Its presence gives rise to the potential for odour emission as the material rots and also provides an attraction for vermin. 13 Evidence was given before me of continuing problems with odour from the premises, particularly in the early mornings. I accept that evidence. It is plain from the conversation recorded between Miss McCarthy and Mr McKay who has been engaged to manage the premises, that putrescible material or green waste is still being received. It is said, and there may be some force in this, that there are difficulties in controlling the trucks which come to the premises and that green waste is often secreted at the bottom of the tray and not identified until the truck is unloaded. Be that as it may the presence of the material is plainly the source of a significant problem and the inability of the respondents to control it causes significant impacts on the amenity of some of the adjoining property owners. 14 The respondents indicate that they are using a chemical called Septone in an endeavour to control the odour. However, Mr McKay also indicates that the chemical will have greatest effect when the stockpile of material containing natural products which are decaying is turned over, enabling contact with the chemical. Although it may be that in that way, in time, the odour problem can be reduced, no doubt the impact when the material is first turned and fresh odour released will be greater than if the material was not disturbed. 15 I am persuaded that, put in simple terms, the way in which the premises have been conducted and continue to be conducted imposes serious adverse impacts on the neighbours because of the emission of odour. Evidence to this effect is given by both Miss McCarthy and Miss Wilcox, who relate both their observations of material being delivered to the premises and their experience of odour emanating from them. Their evidence is significantly reinforced when consideration is given to a document tendered in evidence referred to as the "Leaway Price List." Although that document says that the business will not accept "asbestos, chemical or hazardous waste, green waste, tyres or household and food waste". 16 It nevertheless says that: "Any waste of this type that is brought over to the weigh station, will be charged out at a penalty rate of $135 per tonne all inclusive." 17 The only sensible interpretation of this document is that from time to time such waste will be received but a significantly higher charge will be imposed. 18 Although the photographs do not show a significant volume of green waste, there is evidence that it has been received. There is also evidence of a significant number of tyres received at the premises and although the price list says that they will not be accepted, it is plain that this has occurred. In these circumstances, although it is not possible to identify the extent of putrescible material at the premises, I am satisfied that it is present and is the source of the odour problems. 19 It is now many months since the problems with the operation of these premises came to the attention of the Court. I have on more than one occasion ameliorated the impact of the conclusions which I have reached by providing either time for compliance with the original order or by deferring the imposition of penalties for breach of those orders. 20 Having regard to all of the evidence before me, I am satisfied the time has now come when the penalty which I indicated in December should be imposed and orders to pay that penalty and the costs of these proceedings should also be made. In coming to that conclusion I am conscious of the fact that the respondents have made some efforts to ameliorate the impact of their activities on the neighbours. 21 Mr McKay has been engaged, although I note with some concern, that he has not been employed to manage the activities at the premises and it would appear he has volunteered his services and attends only at some periods of time on each working day. My understanding of the original offer would have included the further employment of a person who would be present at the premises and in a position to control all of the activities which were taking place. I also envisaged that that person, being an employee, would be remunerated for his or her services and, accordingly, if that person failed to carry out those services effectively could be discharged and another person employed to undertake them. Perhaps I was mistaken in the view which I formed of the offer which was made. Be that as it may, it seems to me to be unsatisfactory for the attempt to manage the environmental problems at this site to be carried out by a person who is only there some of the time and who is not being remunerated for carrying out that task. 22 I indicated previously that the appropriate penalty was a monetary sum which should be a total sum of $50,000. 23 The respondents have indicated that they would seek a period of six months within which to pay the penalty which I propose. In the circumstances, this is, to my mind, an excessive period of time. As I have indicated, the problems with these premises have been continuing for a long period and notwithstanding the opportunities which I have provided, those problems remain. To my mind, a period of twenty-eight days would be the appropriate time within which the penalty should be paid. 24 Accordingly, I formally find the contempt alleged with respect to both respondents proved for the reasons which I indicated on 17 December 2004. I impose a penalty in the total sum of $50,000 to be paid jointly or severally by the respondents, such payment to be made within twenty-eight days of today. 25 I order the respondents to pay the applicant's costs of Monday 4 April and the costs of today. **********

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