Udy v Hornsby Shire Council

Cantarella Bros Pty Ltd v Ryde City Council (2003) 131 LGERA 190; CASES CITED: Electricity Commission of New South Wales v Environment Protection Authority (1992) 77 LGRA 424; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

APPLICANT Dr S Berveling SOLICITORS A R Walmsley & Co LEGAL REPRESENTATIVES: RESPONDENT Mr T Howard SOLICITORS Home Wilkinson Lowry

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT Jagot J: 1 On 30 November 2006, Hornsby Shire Council served a notice under s 96 of the Protection of the Environment Operations Act 1997 on Yelena Udy. Ms Udy lodged a Class 1 appeal against the notice in accordance with s 289(1) of the Act. Ms Udy contends that the notice and the actions it requires her to take are beyond power. Her grounds are that: (1) The activity the subject of the notice is not "one to be addressed by a prevention notice".

(2) The actions the notice requires are not actions "to ensure that the activity is carried on in future in an environmentally satisfactory manner", so that a requirement for a valid prevention notice is absent.

2 Ms Udy raised these grounds as questions of law in the Class 1 proceedings. By consent, the Court ordered that these questions be heard and determined separately.

3 The notice concerns the importing of fill to, and the removal of trees from, land known as 6 Belbowrie Close, Galston. The notice requires the importing of fill and the removal of trees to cease and specifies a series of steps to be taken leading to the ultimate removal of the fill and completion of a bushland restoration program.

4 The parties agreed that 6 Belbowrie Close, Galston is used for residential purposes.

5 Chapter 4 of the Protection of the Environment Operations Act concerns "environment protection notices". An environment protection notice is defined in the Dictionary to the Act to mean "a clean-up notice, prevention notice or prohibition notice issued under Chapter 4 and in force". Prevention notices are provided for in Pt 4.3 of Ch 4. Section 95 is as follows: 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.

6 The Dictionary to the Protection of the Environment Operations Act contains the following definitions: activity means an industrial, agricultural or commercial activity or an activity of any other nature whatever (including the keeping of a substance or an animal). harm to the environment includes any direct or indirect alteration of the environment that has the effect of degrading the environment and, without limiting the generality of the above, includes any act or omission that results in pollution. land pollution or pollution of land means placing in or on, or otherwise introducing into or onto, the land (whether through an act or omission) any matter, whether solid, liquid or gaseous: (a) that causes or is likely to cause degradation of the land, resulting in actual or potential harm to the health or safety of human beings, animals or other terrestrial life or ecosystems, or actual or potential loss or property damage, that is not trivial, or (b) that is of a prescribed nature, description or class or that does not comply with any standard prescribed in respect of that matter, but does not include placing in or on, or otherwise introducing into or onto, land any substance excluded from this definition by the regulations. pollution means: (a) water pollution, or (b) air pollution, or (c) noise pollution, or (d) land pollution. pollution incident means an incident or set of circumstances during or as a consequence of which there is or is likely to be a leak, spill or other escape or deposit of a substance, as a result of which pollution has occurred, is occurring or is likely to occur. It includes an incident or set of circumstances in which a substance has been placed or disposed of on premises, but it does not include an incident or set of circumstances involving only the emission of any noise. premises includes: (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.

7 Section 96 is in the following terms: (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: (a) installing, repairing, altering, replacing, maintaining or operating control equipment or other plant, (b) modifying, or carrying out any work on, plant, (c) ceasing to use plant or altering the way plant is used, (d) ceasing to carry on or not commencing to carry on an activity, (e) carrying on an activity in a particular manner, (f) carrying on an activity only during particular times, (g) monitoring, sampling or analysing any pollution or otherwise ascertaining the nature and extent of pollution or the risk of pollution, (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) … … (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.

8 In support of the first ground of challenge to the validity of the notice, counsel for Ms Udy submitted that an "activity" within the meaning of the Protection of the Environment Operations Act was limited to an activity with "an economic/business basis" or, at the least, to a "non-private" activity. This was said to follow from, first, the context of the legislation as a whole, secondly, the need to construe the words "…an activity of any other nature whatever" by reference to the preceding classes in the definition ("industrial, agricultural or commercial activity") and, thirdly, the absurdity that would otherwise result from the generality of the definition of "activity".

9 None of these submissions necessarily support the limitation of "activity" to activities with an "economic/business basis" or, at the least, to "non-private" activities. First, the provisions of the Act, construed as a whole, are inconsistent with this limitation. For example, the objects in s 3 are expressed by reference to the environment generally. Many of the key definitions (such as pollution incident, water pollution, land pollution) are focused on the results or consequences of human action, not the motivation of the humans involved. Secondly, the proposed limitation is both inherently unstable and potentially inconsistent with the putative class established by the words "industrial, agricultural or commercial". One example will suffice: does a hobby farm run at a loss have an "economic/business basis" and is it a "private" or "non-private" activity? Thirdly, the spectre of absurdity is readily answered by the observation of Gleeson CJ in Electricity Commission of New South Wales v Environment Protection Authority (1992) 77 LGRA 424 when confronted by a similar submission - namely, the definition is to be approached in a "commonsense fashion" (at 428). When commonsense is applied, it is apparent that the potentially broad scope of the definition of "activity" is appropriate. The legislative provisions do not regulate "activities" at large, but "activities" carrying certain actual or potential consequences for the environment. Once that is recognised, it is clear that any distinction between "economic/business" activities and "private" activities is not a relevant touchstone for the purpose of the definition of "activity" in the Protection of the Environment Operations Act.

10 There is a further answer to this submission if, contrary to my conclusions, the limitation proposed is relevant. Nothing in the notice supports the inference that Ms Udy's alleged activities did not have an "economic/business basis". The fact that the land was used for residential purposes does not necessarily exclude the alleged activities from having this character.

11 In support of the first ground of challenge, Ms Udy's counsel also submitted that the alleged activity could not be regulated by a prevention notice requiring action "to ensure that the activity is carried on in future in an environmentally satisfactory manner", as it was a "one off" and "completed" activity, rather than an ongoing activity. When analysed, this argument is an aspect of the second ground of challenge concerning the actions authorised to be included in a prevention notice. Insofar as it is capable of relating to the first ground of challenge, this submission should be rejected. Section 96(1) expressly contemplates that an activity might be one that "has been or is being carried on". The relevant control is found in the words "environmentally unsatisfactory manner", not whether the activity is a "one off" or "completed" activity. The meaning given to "environmentally unsatisfactory manner" discloses that the concept of a "one off" or "completed" activity is unhelpful. For example, an activity is carried on in an "environmentally unsatisfactory manner" if it "causes, or is likely to cause, a pollution incident". A pollution incident is defined to include pollution that "has occurred, is occurring or is likely to occur". It also includes "an incident or set of circumstances in which a substance has been placed or disposed of on premises". The legislation, consistent with ordinary human experience, recognises that environmental consequences often continue after human agency has ceased. Even if the alleged activity of depositing fill on 6 Belbowrie Close, Galston had ceased before the prevention notice was issued, the circumstances would nevertheless be capable of founding a reasonable suspicion within the meaning of s 96(1) of the Protection of the Environment Operations Act (see, by analogy, Cantarella Bros Pty Ltd v Ryde City Council (2003) 131 LGERA 190). In any event, the notice identifies a series of inspections between 20 and 23 November 2006 during which works were identified as continuing. Nothing on the face of the notice dictates an inference that the activity had ceased before the Council issued the notice. For example, the first paragraph of the notice refers to "certain activities that are being carried on" and the fifth main dot point on the second page refers to works and activities "being undertaken".

12 In support of the second ground of challenge, Ms Udy's counsel submitted that the actions required by the notice were outside the scope of s 96(2) as they were directed to ensuring that the activity ceased altogether, rather than ensuring that "the activity is carried on in future in an environmentally satisfactory manner". It was submitted that using a prevention notice to require an activity to cease altogether contravened the structure of the Protection of the Environment Operations Act, specifically, the distinctions drawn between clean-up notices, prevention notices and prohibition notices. Under s 101, the Minister alone, on the recommendation of the Environment Protection Authority, may direct that an activity cease. With this notice, the Council (albeit a regulatory authority) had improperly purported to do so.

13 This submission overlooks the distinction between the activity that has been or is being carried on (on the one hand) and the environmentally unsatisfactory manner in which the activity has been or is being carried on (on the other). It is clear from the face of the notice that the Council reasonably suspected that "certain" activities that had been or were taking place on 6 Belbowrie Close, Galston were being carried on in an environmentally unsatisfactory manner - namely, the importing of fill and the removal of trees. The notice pre-supposes that other activities were being carried out on the land. This makes sense in the context of the fact agreed between the parties that the land was being used for residential purposes. Once it is recognised that the activity being carried on can properly be characterised as the use of the land for residential purposes, it is apparent that the notice, by requiring the fill to be tested and removed and vegetation to be re-established, requires actions which are directed to ensuring that the activity "is carried on in future in an environmentally satisfactory manner". Contrary to the submissions on behalf of Ms Udy, there is no necessity to identify the "activity" as the importing of fill and removal of trees. The importing of fill and removal of trees are the environmentally unsatisfactory "manner" in which the activity (the use of land for residential purposes) is being or has been carried on. The actions identified in the notice are those the Council believed were required "to ensure that the activity is carried on in future in an environmentally satisfactory manner". Whether that belief was sound or the required actions appropriate falls for determination in the merits hearing. These conclusions are inconsistent with the submission that the actions required the activity to cease and, accordingly, may only be the subject of a prohibition notice. Once it is recognised that an "activity" within the meaning of s 96 may be as broad as the use of land, it is clear that requiring some aspect of that use to cease does not infringe upon the regime for prohibition notices.

14 There are other reasons to reject the submissions on Ms Udy's behalf with respect to the second ground of challenge. The circumstances in which environment protection notices may be issued, and the actions such notices may require, self-evidently overlap to some extent. For example, a pollution incident can trigger (in terms) a clean-up notice (s 91(1)) and a prevention notice (s 95 and s 96(1)). A pollution incident of sufficiently serious consequence may also trigger a prohibition notice (s 101(1)). The fact that one power is available does not necessarily exclude the other powers. Ms Udy's counsel acknowledged this to be so, but submitted that the actions required by clean-up and prevention notices could not infringe upon the actions required by a prohibition notice. While I accept that it is possible that a particular notice issued under s 96, in substance, could be a prohibition notice under s 101 (which a council has no power to issue), this is plainly not the case here. As identified above, this notice is concerned with "certain activities" only. The parties agreed that the land was being used for residential purposes. Nothing in the notice purports to prohibit the carrying out of that activity.

15 Further, there is force in the Council's submission that ss 96(2) and (3) should be construed as part of an overall scheme for ensuring that activities are carried on in an environmentally satisfactory manner. The "unity" of this scheme (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] - [71]) indicates that a prevention notice may require a person to cease carrying on an activity (s 96(3)(d)), even though this may also be an action required by a prohibition notice. The right of appeal against prevention notices under s 289, when compared to the absence of an appeal right against prohibition notices, speaks against a construction of the statutory scheme dependent upon strict mutual exclusivity of actions able to be required by environment protection notices.

16 Finally, many paragraphs of the notice in question are not concerned with ceasing to and removing fill and otherwise rehabilitating the land. Even if the activity is treated as the importing of fill (contrary to my conclusion above), paragraphs 2 to 7 and 9 of the notice concern actions directed to ensuring that this activity is "carried on in future in an environmentally satisfactory manner". Accordingly, irrespective of my conclusions above, this notice could not be found to be beyond power and invalid absent consideration of matters such as severability (which were not addressed by either party).

17 I consider the conclusions I have reached above to be consistent with the objects of the Protection of the Environment Operations Act and the context of the legislation as a whole. In particular, I do not accept the submission on behalf of Ms Udy that the availability of other remedies for unlawful land uses (for example, under the Environmental Planning and Assessment Act 1979) indicates that a narrow construction of the scheme for prevention notices is warranted. Similarly, I do not accept that the regime in the Protection of the Environment Operations Act dealing with land pollution (Div 2 of Pt 5.6) speaks against my construction of the provisions with respect to prevention notices. To the contrary, it supports the availability of various statutory mechanisms to respond to environmental issues, consistent with the objects in s 3 of the Act. I do not accept the submission that prevention notices are directed to two objects only of the Protection of the Environment Operations Act (s 3(d)(iv) and (v)). Prevention notices are capable of fulfilling broader objects than those provisions (including s 3(a) and all the provisions of s 3(d)). I do not accept the submission that the "mischief" to which prevention notices are directed is the "continued carrying on of activities with an economic/business basis in such manner as to avoid making progressive environmental improvements to them and to avoid the regular monitoring of and reporting on such activities". This description involves a series of unjustified glosses on the plain meaning of the statutory provisions.

18 For the reasons given above, the separate questions (which I have paraphrased below as questions rather than issues) should be answered as follows: (1) Is the prevention notice issued by the respondent and dated 30 November 2006 beyond power? No. (2) Are the actions which the prevention notice requires to be taken beyond power? No.

19 This appeal should proceed to hearing on the merits.

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