Murphey v Beaudesert Shire Council
[2002] QDC 292
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- Unreported Judgment
- Murphey v Beaudesert Shire Council[2002] QDC 292
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Murphey v Beaudesert Shire Council[2002] QDC 292
Murphey v Beaudesert Shire Council[2002] QDC 292
DISTRICT COURT OF QUEENSLAND
CITATION: | Murphey v Beaudesert Shire Council [2002] QDC 292 |
PARTIES: | Leonard Edward Murphey and Karen Alys Murphey Appellants v Beaudesert Shire Council Respondent |
FILE NO/S: | |
DIVISION: | |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Environment Planning |
DELIVERED ON: | 28 October 2002 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 14-16 October 2002 |
JUDGE: | Skoien SJDC |
ORDER: | Appeal adjourned to date to be fixed. |
CATCHWORDS: | Adjournment to allow trial of measures to counter environmental law; environmental protection order; intensive poultry raising sheds; odour; dust. |
COUNSEL: | Mr J Haydon for appellant Mr T Trotter for respondent |
SOLICITORS: | Carter Capner for appellant Corrs Chambers Westgarth for respondent |
- [1]This is an appeal by the appellants under ss. 531 et seq of the Environmental Protection Act 1996 (EPA) against the deemed confirmation by the Council (s. 521(10)) of its decision to issue an Environmental Protection Order (“EPO”) to the Appellants under s. 358 of EPA. The administration and enforcement of EPA in relation to poultry farming (the relevant industry in this appeal) has been devolved to local governments under s. 39(1) of the Environmental Protection Regulations 1998 (“EPR”).
History
- [2]The appellants conduct a broiler chicken farm at corner Undullah Road and Brookland Road, Allenview in the Beaudesert Shire. They bought the land (containing 40 hectares) in 1997. The land was zoned “rural” under the Town Planning Scheme in which a poultry farm was an “as of right” use. The appellants were able to comply with all requirements of the Council for that use.
- [3]In January 1998 the appellants applied to the Council under s. 82 of EPA for an Environmental Authority (a poultry farm of the intended size being a level 2 environmentally relevant activity under s. 18 (b) of EPA and item 4(a) of schedule 1 of the EPR) and on 9 April 1998 received from the Council that Authority. The Authority was subject to a number of conditions including conditions 1 and 5, being:
“1.Contaminants must not be released into the environment where the release will or may cause environmental harm, unless such release is authorised by this Authority.”
5.Odour and visible contaminants, including dust, smoke, fumes and aerosols must not be released into the environment in a manner that will or may cause environmental harm or environmental nuisance unless such release is authorised by this Authority.”
- [4]The farm began operating in June 1998. At all material times it has contained batches of some 90,000 birds. The birds are supplied, remain the property of, and are taken away for slaughter (after some 5 to 7 weeks) by Inghams Enterprises Pty Ltd who also supply the necessary feed. The Appellants however own the farm and the improvements, notably the four sheds in which the chickens are raised and two dwelling houses.
- [5]On 4 March 1999 the Council wrote to the appellants concerning complaints of odour said to be emanating from the farm. The appellants engaged Pacific Air and Environment who are experts in the field and obtained a report which they sent to the Council in late June 1999. The report concluded that the farm was being well operated and maintained and that additional controls were not required to reduce odour, as odour emissions were acceptable. That report was examined by another expert consultant, W.B.M., whose report, in August 1999, confirmed the Pacific Air report.
- [6]On 22 September 1999 a revised Environmental Authority was issued to the appellants by the Council. Conditions 1 and 5 (above) remained unchanged.
- [7]On 8 August 2001 the Council issued under s. 358 of EPA, an Environmental Protection Order (“EPO”) to the appellants, expressed to be based on a failure to comply with conditions 1 and 5.
- [8]The EPO required the appellants:
“1.To ensure you comply with the said conditions 1 and 5 of the Environmental Authority and to ensure compliance continues at all times while the Environmental Authority is in place; and
- In connection with order number 1, you must carry out such works, install such devises, carry out such measures, do all such things and employ such best practice environmental management of the activity particularly in relation to those aspects of the activity related to the emission of contaminants, odour and dust as will ensure compliance with the said conditions 1 and 5 of the Environmental Authority.
- To provide the administering authority’s authorised officers all documents and other evidence of such works, installation of devices, carrying out of such measures, the doing of all such things and the employment of best practice environmental management as will ensure compliance with the said conditions 1 and 5. Such documents and/or other evidence is to be supplied to the administering authority’s authorised officers as requested by them but in any event no later than 10 November, 2001.
- To cease operating the poultry farm referred to in this Environmental Protection Order until further notice from the administering authority if compliance with the said conditions 1 and 5 has not been achieved to the satisfaction of the administering authority by 10 March 2002.”
Operation of Farm
- [9]The appellants raise five or six batches of chickens per year, each of approximately 90,000 chickens. Losses during the growing season are about 5%. At 34 to 35 days about 35 to 40% of the chickens are taken out by Inghams for slaughter. At about 42 days, a further 4,000 or so chickens are taken for slaughter. At about 7 to 7½ weeks the remaining chickens are taken out. Once all of the chickens have been removed the used litter is taken out of the sheds and off the poultry farm. Litter is removed from the sheds by a truck to be used as fertilizer. A large percentage of the litter is spread on a nearby dairy farm.
- [10]The sheds are computer controlled and monitored. Power, or tunnel, ventilation is the system used to ventilate the sheds by means of electrically operated extraction fans, eight at the western end of each of the three sheds. The time the fans are in operation is variable, depending on the age of the chickens, the temperature and weather conditions.
- [11]Approximately 800 trees have been planted since 1998 particularly at the western end of the sheds. They are fertilized with a slow release fertilizer. Planting of trees and landscaping throughout the farm is a continuing process.
- [12]Misting sprays are located on the tunnel ventilation fan guards and spray a fine mist of water through which the ventilated air travels when the fans are operating. They are used in an attempt to minimise odour and dust.
The EPO Process
- [13]An EPO may be issued to a person by the administering authority (i.e. the Council), among other things, to secure the compliance of the person with a condition of an environmental authority (see EPA, s. 358(d(iii)). That is what this EPO required (see para [8] above).
- [14]Section 359 of EPA requires the Council to consider standard criteria before issuing an EPO. The standard criteria are contained in Schedule 3 of EPA and relevantly include:-
“(d)any applicable environmental impact study, assessment or report; and
(e)the character resilience and values of the receiving environment; and
(g)the best practice environmental management for the activity under the authority…..; and
(h)the financial implications of the requirement of the authority …… as they would relate to the type of activity or industry carried on under the authority …..; and
(i)the public interest.”
- [15]Under s. 360(1)(c), an EPO may impose a reasonable requirement to prevent or minimise environmental harm.
- [16]This appeal, it must be remembered, does not relate to a prosecution for an alleged offence. It arises because the appellants asked the Council to review the decision to issue the EPO (ss. 520, 521) and the deemed decision of the Council under s. 521(10). The right to appeal is given by ss. 531 et seq.
- [17]Section 539 of EPA provides:-
"(1)In deciding an appeal, the Court may –
(a)confirm the decision appealed against; or
(b)vary the decision appealed against; or
(c)set aside the decision appealed against and make a decision in substitution for the decision set aside.
(2)If on appeal the Court acts under subsection (1)(b) or (c), the decision is taken, for this Act (other than this part), to be that of the administering authority.
Relevant Statutory Provisions
- [18]“Environmental harm”, to which both conditions 1 and 5 refer, is defined by s. 14 of EPA to be:-
“(1)…. Any adverse effect, or potential adverse effect (whether temporary or permanent and of whatever magnitude, duration or frequency) on an environmental value, and includes environmental nuisance.
(2)Environmental harm may be caused by an activity –
(a)whether the harm is a direct or indirect result of the activity.”
- [19]“Environmental nuisance” is defined by s. 15 of EPA as:-
“…. unreasonable interference or likely interference with an environmental value caused by –
(a) …. dust, odour;”
and the complaints here were of the production of dust and odour.
- [20]“Environment” is defined in s. 8 of EPA to include:
“(a)ecosystems and their constituent parts, including people and communities;
and
(d) the social, economic, aesthetic and cultural conditions that affect or are affected by, things mentioned in” [paragraph (a)}
- [21]“Environmental value”, which is picked up in the definition of “environmental harm” (para [18] above) is defined by s. 9 of EPA to include:
“(a)a quality or physical characteristic of the environment that is conducive to ecological health or public amenity or safety.”
- [22]A “contaminant” can be a gas, solid (for example dust or feathers), liquid or an odour (EPA s. 11). So the complaints here relate to contaminants, to which conditions 1 and 5 of the Authority apply.
- [23]Section 14 of the Environmental Protection (Air) Policy 1997 provides that the quality of the air environment that is conducive to the suitability for life, health, and wellbeing of humans is an environmental value (a term which is picked up by the term “environmental harm” – see para [18] above).
Relevant Tests
- [24]Section 360(1)(c) (para [15] above), by introducing the concept of reasonableness of the requirement and the minimisation of environmental harm makes relevant s. 319 (“general environmental duty”) which is:-
“319(1)A person must not carry out any activity that causes, or is likely to cause, environmental harm unless the person takes all reasonable and practicable measures to prevent or minimise the harm (the “general environmental duty”).
- (2)In deciding the measures required to be taken under subsection (1), regard must be had to, for example -
- (a)the nature of the harm or potential harm; and
- (b)the sensitivity of the receiving environment; and
- (c)the current state of technical knowledge for the activity; and
- (d)the likelihood of successful application of the different measures that might be take; and
- (e)the financial implications of the different measures as they would relate to the type of activity.”
- [25]It is also relevant to have regard to s. 21 (“best practice environmental management”) which is
“(21).(1)The “best practice environmental management” of an activity is the management of the activity to achieve an ongoing minimisation of the activity’s environmental harm through cost-effective measures assessed against the measures currently used nationally and internationally for the activity.
(2)In deciding the “best practice environmental management” of an activity, regard must be had to the following measures -
(a)strategic planning by the person carrying out, or proposing to carry out, the activity;
- (b)administrative systems put into effect by the person, including staff training and monitoring and review of the systems;
- (c)public consultation carried out by the person;
- (d)product and process design;
- (e)waste prevention, treatment and disposal.
(2)Subsection (2) does not limit the measures to which regard may be had in deciding the “best practice environmental management” of an activity.”
- [26]The value for the local community (the Shire) of an economically successful farm is obvious. Even if, in a case like this, much of the profit is seen to go to an “outsider” (Inghams) the local benefits still exist. An economic farmer also makes a profit. He pays rates. He engages local tradesmen to build, to plumb, and to electrify his venture. He tends to spend his money in the shire on such things as foodstuffs. He employs local people to work in his industry. All of this must amount to a very sizeable benefit to the local shire.
- [27]It follows from that that it would be a drastic step to close down that industry. It would not only potentially ruin the farmer but it would also act to the direct detriment of some other local people and to the indirect detriment of many more.
- [28]On the other hand EPA is clearly designed to protect and preserve the environment which is very broadly defined in s. 8 (para [20] above). That is clear from the definitions of environmental harm and environmental nuisance (paras [18] and [19] above) and the strictures against causing environmental harm (ss. 436 et seq). Section 360 itself (para [15] above) and the standard criteria (para [14] above) also show how jealously the general environment is to be guarded.
- [29]So in cases of this sort the Court is required to achieve a careful balance between the two positions. In my view, the provisions of EPA which I have cited in paras [24] and [25] above contain the key to achieving that balance. The doing of environmental harm (which is a concept cast in the widest language – see para [18] above) is forbidden in this case by conditions 1 and 5 of the Authority but that injunction is softened by the express terms of s. 319 and s. 21 (paras [24] and [25] above). They introduce the concepts of reasonableness, practicality, current technical knowledge, cost effectiveness and financial implications.
- [30]Indeed the EPA sections themselves call up the same matters. See paras (g) and (h) of the standard criteria (para [14] above), which are expressly applied to the EPO process by s. 359. And I note that s. 360(1)(c) restricts an EPO to the imposition of a reasonable requirement to prevent or minimise environmental harm.
- [31]It is appropriate at this point to identify the places at which environmental harm may not be inflicted. So far as I can see (and the submissions of counsel have not suggested otherwise) EPA is silent on the point.
- [32]The environment as defined in s. 8 and as understood generally as a word of the English language would include the immediate area of the activity under review. Here, that is the appellants’ farm. Yet it cannot be thought that EPA would forbid the appellants from producing environmental harm which remains within and does not escape the limits of their own farm. Some escape to and adverse effect on land other than the land of the activity must be contemplated.
- [33]One argument put was that environmental harm to any place outside the boundary of the appellants’ land suffices to contravene EPA. I do not accept that. That would have these appellants in breach of EPA, for example, if a passer by were to be exposed, even briefly, to an unpleasant smell or a puff of dust. This would offend the de minimus concept of the law. I regard it as most unlikely that the legislature would have intended so drastic a result without saying so expressly.
- [34]An interpretation which would better fit the presumed intention of the legislature would require an examination whether environmental harm is suffered at a “sensitive place”. In a case about the effect of odour or non-toxic dust (as here), a sensitive place would obviously be the residence or some other part of the land (not the land of the producer of the odour) to which the resident frequently has resort. It is inappropriate to suggest in these reasons what might qualify as a sensitive place for other types of alleged environmental harm.
- [35]In this appeal the accent was on the effect of the odour and dust at the residences of the witnesses and those are the sensitive places on which I concentrate. Of those, the most seriously affected place, according to the evidence, was the Ahmat residence.
Evidence of Environmental Harm
- [36]Mr Halasz is the co-ordinator for environmental health employed by the Council. He is also the “authorised person” under EPA (s. 445(2); Schedule 3 “authorised person”). In the absence of any challenge, his due appointment is presumed (s. 490(2)). As this is not a proceeding for an offence against s. 440 his opinion on matters of odour and their consequences is not given any support by the provisions of s. 491(2).
- [37]Mr Halasz gave evidence of the odours he detected and identified as emanating from the appellants’ farm. In total, he visited the Ahmat house for assessment purposes eight times between January 2001 and February 2002.
- [38]On four occasions no odours were detectable at the Ahmat house. However on four occasions they were and were noted in his diary:-
- (a)23 January 2001, between 11 am and 9 pm, odours varied and were described as “moderately offensive”, “objectionable” and “very objectionable”.
- (b)18 January 2001, between 4 pm and 4.30 pm, odours described as “sour and very offensive” ranged from “faint to medium strength”, the latter predominating.
- (c)7 February 2002, between 5.10 pm and 6.25 pm, odours described as “offensive to very offensive”.
- (d)13 February 2002, between 3.55 pm and 4.55 pm, odour level described as varying from mild to very offensive, the latter predominating. The nature of the odours described as “a smothering effect”. He noted that the intensity was similar at the Ahmat house to that on the road much closer to the extractor fans.
- [39]Mrs Ahmat’s house is about 300 metres from the sheds and west-south-west of them. Her evidence was that since the poultry farm began operations she has regularly and frequently detected a “horrible, objectionable smell, and it is simply breath-taking”. She described it as “a rotten meat smell, mixed with urine”. It can last an hour or two or it can last from morning to night, and even into the night. It has adversely affected her lifestyle in that she has to keep her eastern windows shut. It adversely affects her appetite and her ability to entertain guests. She now suffers from eye irritations and allergies. Gardening is not possible when the odours are present. She and her husband have attempted, without success, to sell their property, on which they had intended to live out their days. She also complains of dust (probably feather particles) but I understand this to be more of a mild annoyance.
- [40]Mrs Keenan lives due south of the sheds, her house being about 700 metres distant. She gave evidence of similar offensive odours at her house. They vary in intensity but are sometimes severe enough seriously to disturb her lifestyle. When present at Mrs Ahmat’s house she once experienced the odour so strongly that she felt nauseated and lost her appetite and she also experienced a persistent eye irritation. She has no doubt that these odours emanate from the sheds and indeed when exposed to these odours closer to their source her discomfort is considerably greater than when at home. She also has seen dust (sometimes quite dense) coming from the sheds.
- [41]Mr Bryde, whose house is some 450 metres south-south east of the sheds also experiences the same sort of problems from odour from the sheds. They are sometimes sufficiently serious to restrict his use of the northern part of his house. The effect on him is considerably less than on Mrs Ahmat or Mrs Keenan. He also has seen dust particles in the air coming from the sheds.
- [42]It is well known that the ability to detect odours and sensitivity to them varies considerably from individual to individual. It is also well known that, for various reasons, some individuals may consciously or unconsciously exaggerate the intensity or effect of odours. I was satisfied that none of the witnesses in this case fell into that category and that all of them had reasonably normal senses of smell and tolerance to unpleasant odours. All of them agreed that the problems worsened as each batch of chickens matured.
- [43]Mr Ormerod of Pacific Air’s Environment did not detect any unreasonably unpleasant odours coming from the sheds. No one has suggested that he is abnormally insensitive to odours or cast any doubt on his veracity. I am driven to the conclusion that on the two occasions he visited the site unpleasant odours were not being produced in sufficient concentration or intensity to be objectionable.
- [44]I conclude that the appellants’ sheds are regularly releasing substantial volumes of contaminants in the form of odour and sometimes also dust into the environment and thereby causing environmental harm, in breach of conditions 1 and 5. There is no question of that release being authorised by the Authority.
- [45]But that is not the end of the matter The entity which considers the propriety of issuing an EPO and the nature of its terms (which now is my duty) must undertake the balancing exercise I referred to in para [29] above.
Reasonable Steps to Minimise Environmental Harm
- [46]I accept the evidence of Mr Ormerod in his report, ex 9, and orally given, that the appellants’ farm is run on modern, efficient lines. But the fact is, as I have found, environmental harm is being suffered at sensitive places, the houses of the three neighbours. In cross-examination, various suggestions were put to him to bring about possible amelioration. He did not reject them as beyond question and so they must be considered to see if the balance can, by the adoption of reasonable measures, swing back to allow the farm to operate without causing environmental harm to any substantial degree.
- [47]Mr Halasz, in evidence, offered suggestions on the types of dust and odour suppressants which could be tried at the appellants’ sheds and their likely effectiveness. He also gave very vague estimates of the likely cost. He is not an expert in this field and his evidence was hearsay. It therefore could not be subjected to any careful examination, and I reject it. Of course the Council is under no duty to suggest or design any such equipment.
- [48]On the evidence of Mr Ormerod, the diversion of the fan plumes from horizontal to vertical, or a lesser angle, would not make an appreciable difference to the existing state of things except, it seems, by the substitution of very expensive fans. Similarly he said that the cost of biofiltration is likely to be prohibitive.
- [49]The water sprays which the appellants have recently installed would, on the evidence of Mr Ormerod, have some beneficial effect on dust, feathers etc. On the evidence it seems that they have not been used at all times when the fans are operating. To what extent they are effective, whether they should operate whenever the fans operate and whether that operation is necessary if fewer than all eight fans are turning, are all unknown qualities. So is the question whether the sprays would produce contaminated groundwater.
- [50]One easy and cheap possible alleviating measure which was mentioned in evidence, is the building of hay bale walls in the extractor fan plumes to create turbulence and help the dispersal of odours. In my view something as cheap and simple as that should be tried and it should be tried as soon as possible.
- [51]To enable that trial to take place I think it appropriate to adjourn the appeal. That will have the effect of extending the stay of the EPO ordered by His Honour Judge Quirk on 9 November 2001. The trial should be long enough to allow a proper evaluation of its effect. In my opinion at least three batches of chickens should be raised during the trial.
- [52]I do not propose to set any timetable on the trial other to suggest, as I have, its minimum duration. Nor do I propose to order the Council to appoint an expert, although it may very well consider the matter to be serious enough and with sufficient shire-wide implications to do that. It is clearly in the interests of the appellants to put experts to work in designing the dimensions and position of the wall and having it built as soon as possible. It is clearly in the appellants’ interests to have the results of the trial monitored. I would expect during the trial the appellants’ experts would no doubt consider whether better alternative measures are available and are feasible both practically and economically. The length of the trial will also provide an opportunity for a careful analysis of the questions relating to the water spray such as that I have raised in para [49].
- [53]I hope it is unnecessary to add that in cases such as this all interested parties must have regard to some obvious matters. First, as dictated by the law and good neighbourliness, the appellants cannot unreasonably degrade the lifestyle and property values of local residents. Second, local residents cannot expect a rural environment to be absolutely free of odours and dust which are part and parcel of rural life which nowadays can encompass intensive animal husbandry. Third, the parties ought to realise that restrained and polite contact is probably essential to the conduct of a proper trial. For example, should the Council retain experts, they ought to confer with the appellants’ experts. Furthermore, should a local resident or Mr Halasz consider that an unreasonable odour or dust escape is present, prompt notice of that to the appellants will give them the opportunity of investigating the complaint. Fourth, I hope it will not be necessary to make a formal order giving parties and their experts reasonable access to each others’ properties. Good sense must prevail.
- [54]I adjourn the appeal to a date to be fixed to be brought on by the giving of one party to the other of ……..days’ notice.