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Cuthbert v Moreton Bay Regional Council (No 2)[2018] QPEC 40

Cuthbert v Moreton Bay Regional Council (No 2)[2018] QPEC 40

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Cuthbert v Moreton Bay Regional Council No. 2  [2018] QPEC 40

PARTIES:

HEATHER LORRAINE CUTHBERT

(appellant)

v

MORETON BAY REGIONAL COUNCIL

(respondent)

FILE NO/S:

2283/2015 & 5102/2016

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

31 August 2018

DELIVERED AT:

Cairns

HEARING DATE:

6, 7, 8 & 9 March 2017, 27 April 2017.

JUDGE:

Morzone QC DCJ

ORDER:

  1. In respect of appeal number 2283 of 2015 I order that the appellant’s revised Site Based Environmental Management Plan (exhibit 4) is approved subject to the following changes:
  1. (a)
    Section 3, ought better identify the noise      sensitive receptors.
  2. (b)
    Paragraphs 134, 135 and 150 must be modified to ensure that no spray painting activity including anti-foul (delivered by airless, compressed or other spray air guns) is carried out unless and until the appellant has an approved spray booth suitable to the task pursuant to condition (B5).
  3. (c)
    Paragraphs 172 – 175 ought be modified to expressly exclude all work on boats longer than 40 feet or 12.2 metres unless the repair work is limited to spot repairs and then only above the interception drain (not inundated by tide). 
  4. (d)
    Paragraphs 29(d), 176, and 178 must be modified to two 10,000 litre tank capacity, that is a 10,000 litre settling tank and 10,000 litre storage tank.
  5. (e)
    Paragraphs 29(g), 57, and 188 conflict with the EA in so far as they permit irrigation of the holding tank water onto the land, and ought be deleted. 
  1. In respect of application number 5102 of 2016 I order on and from 4pm on 14 September 2018 that the appellant be restrained by injunction from:
  1. (a)
    Conducting spray painting activity including anti-foul (delivered by airless, compressed or other spray air guns) unless and until the appellant has an approved spray booth suitable to the task pursuant to condition (B5).
  1. (b)
    Undertaking any work on boats longer than 40 feet or 12.2 metres unless the repair work is limited to spot repairs and then only above the interception drain (not inundated by tide). 
  1. (c)
    Irrigating any land with holding tank   water.
  1. I will hear further submissions on the appropriate form of orders and the future conduct of the proceedings on a date to be fixed.

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – appeal against Environmental Protection Order imposed by council for environmentally relevant activity – whether breach of general environmental duty – findings of breach of conditions of environmental authority – Environmental Protection Order needed to secure future compliance – substituted Environmental Protection Order requiring stormwater management plan and site based environment management plan to address relevant conditions of Environmental Authority – further disputation about terms and conditions of required management plans – determination by court of site based environmental management plan.

Legislation

Environmental Protection Act 1994 (Qld) ss 9, 319, 430, 431, 505, 531

Environmental Protection Regulation 2008 (Qld) sch 7 pt 1

Sustainable Planning Act 2009 (Qld) s 232

Sustainable Planning Regulation 2009 (Qld) sch 4 table 5 item 6

Cases

Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292.

Briginshaw v Briginshaw (1938) 60 CLR 336.

Cuthbert v Moreton Bay Regional Council [2015] QPEC 63.

Darwen & Anor v Pacific Reef Fisheries (Australia) Pty Ltd & Ors [2009] QPELR 262.

James Hardie & Coy Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53.

Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404.

Loader v Moreton Bay Regional Council [2013] QCA 269.

Newcastle City Council v GIO General Ltd (1997) 191 CLR 85.

R v PLV (2001) 51 NSWLR 736.

R v Young (1999) 46 NSWLR 681.

Ravenscroft v Nominal Defendant [2008] 2 Qd R 32.

Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275.

Warringah Shire Council v Sedevcic (1987) 63 LGERA 361.

Wentworth Securities Ltd v Jones [1980] AC 74.

COUNSEL:

A Skoien with D Purcell for the Appellant

S Ure for the Respondent

SOLICITORS:

Butler McDermott Lawyers for the Appellant

Thomson Geer Lawyers for the Respondent

  1. [2]
    The appellant, found in breach of an Environmental Authority in the use of a slipway to repair, sand, spray, fibreglass, water-blast and anti-foul boats, continues to be embroiled in disputation with the respondent council, after failing to agree on an acceptable Site Based Environmental Management Plan.
  1. [3]
    The parties now return to the court to determine an appropriate Site Based Environmental Management Plan foreshadowed by my judgment of 18 December 2015.[1]

Background

  1. [4]
    An Environmental Authority (“EA”) continues to govern the facility conducted on both Lot 1 and Lot 20.[2]  The environmental authority applies subject to conditions under the Act.  By operation of the Act, and successive planning legislation, the environmental authority continues in force as a development approval under the Sustainable Planning Act 2009 (Qld) (“SPA”).
  1. [5]
    I formed the view that the consequential environmental harm and environmental nuisance resulting from these breaches would continue to occur unless the appellant’s management practices and the Environmentally Relevant Activity (“ERA”) infrastructure is significantly improved.  However, I formed the view that the Environmental Protection Order (“EPO”) issued by the council was unnecessarily restrictive, prescriptive and onerous, with the potential to derogate from the original grant of the Environmental Authority (“EA”).  I found the temporal requirements in the EPO both unreasonable and impractical.  Further, the imposition of the EPO would have imposed intolerable immediate material financial implications associated with the upgrade of the slipway, acoustic treatments and dust and odour mitigation requirements.  In the absence of detailed costs or other economic evidence, I was left with uncertainty about whether or not the imposition of the EPO will jeopardise the appellant’s business.
  1. [6]
    I adopted a course of making an EPO compelling the preparation and implementation of a site based management plan, which would necessarily but properly confine the operation of the facility within the scope of the Environmental Authority. To that end, I made the following orders.

“1. The appeal is allowed in part;

  1. The review decision of the council made on 4 May 2015 is set aside;
  1. The Environmental Protection Order dated 31 March 2015 is set aside;
  1. In substitution for the Environmental Protection Order dated 31 March 2015, an Environmental Protection Order will issue, requiring the appellant to prepare and lodge with the council within 90 days of the order:
    1. (a)
      A stormwater management plan for approval by the council pursuant to Condition C1 of the Environmental Authority No. 250000301; and
    2. (b)
      A site based management plan containing reasonable and practicable measures to prevent or minimise the environmental harm, including environmental nuisance, in relation to conditions A2, A5, A10, B1, B2, B3, B6, C1, C2, C4, C5, D1, E1, F1, F3, and F4 of the Environmental Authority No. 250000301.”
  1. [7]
    The appellant lodged with the council a site based environmental management plan on 31 March 2016. The parties were unable to agree as to the appropriateness of the terms proposed by the appellant. The appeal has been managed by directions to facilitate the parties’ negotiation and mediation to agree on a consolidated management plan. They have been unable to do so. The council prepared its Site Based Environmental Management Plan dated December 2016 (“council’s plan”).[3]  In response, on 28 February 2017, the appellant prepared a revised and consolidated Site Based Environmental Management Plan (“appellant’s plan”).[4]
  1. [8]
    In the meantime, the council applied for an injunction to restrain the appellant from conducting her boat maintenance and repair activities until final determination of the matter. That application was consolidated with and was heard with this proceeding.
  1. [9]
    To determine an appropriate Site Based Environmental Plan foreshadowed by the judgment (being a consolidation of the proposed stormwater management plan and site based management plan). For the reasons given below, I decline to grant the interim relief sought by the injunction application.
  1. [10]
    The council also applies for an injunction restraining the appellant from conducting boat maintenance and repair activities on the slipway pending this decision and further requirements under the Site Based Environmental Management Plan.

Jurisdiction

  1. [11]
    The court’s jurisdiction to determine the Site Based Environmental Management Plan is in furtherance of the appeal pursuant to s 531 of the Environmental Protection Act 1994 (Qld) (“the Act”) and paragraph 4 of the orders and judgment delivered on 18 December 2015.
  1. [12]
    The scope of the jurisdiction was set out in my judgment of 18 December 2017.
  1. [13]
    In relation to the injunction sought by the council, ss 430 and 431 of the Act provide for enforcement and offences for contravening conditions of an environmental authority.[5]  Section 505 of that Act empowers the court to make orders directing an offender to stop an activity that is or will be a contravention of the Act,[6] and other orders.
  1. [14]
    In proceedings, like this, seeking enforcement orders, injunctive and declaratory relief predicated on allegations of breach the appropriate standard of proof is “at the higher end of the civil standard”.[7]  Having regard to the consequences of the outcome of this proceeding, in my view, the appropriate standard of proof to be applied is that at the higher end of the civil standard in accordance with the Briginshaw principles.[8] 

Issues

  1. [15]
    The parties’ respective contentions are effectively merged in these competing management plans, as supported by the evidence before the court at the initial hearing and the further hearing.
  1. [16]
    Whether the appellant’s management plan provides reasonable and practicable measures to prevent or minimise environmental harm by securing compliance with the relevant conditions of the EA (and thereby the general environmental duty), or whether further or alternative provisions are required as proposed by the council.
  1. [17]
    The main areas of dispute exposed by the parties respective management plans are whether reasonable and practicable measures ought include:
  1. (a)
    An appropriate containment structure or barrier comprised of dense material surrounding slipway along the Bishops Parade frontage and returns down the side boundaries;[9]
  2. (b)
    Discharge of wastewater from an additional proposed settlement tank to the land within the area governed by the EA;
  3. (c)
    A fully enclosed Carcoon containment facility and filtration/ventilation system, or some similar such containment facility for the Slipway; [10]
  4. (d)
    Monitoring, recording and reporting regime for dust deposition (sample collection and analysis), air quality, noise (and assessment), wastewater and stormwater (sampling and analysis) and the receiving environment.[11]
  1. [18]
    I will address these in the context of the relevant EA conditions subject of the hearing.
  1. [19]
    This will also inform whether an injunction should issue to restrain the appellant from conducting her boat maintenance and repair activities pending implementation of a site based environmental management plan.

Scope of Site Based Environmental Management Plan

  1. [20]
    Before embarking upon the substantive issues, it is useful to remark about the scope of the required site based environmental management plan (“management plan”).
  1. [21]
    Whilst it is good practice for the appellant to implement a comprehensive management plan, this is not a merits appeal involving broader considerations about form and substance of a comprehensive site based management plan attached to a condition of approval. It seems to me that the court’s consideration of the matter ought not be at large, nor should it take the role of drafting and imposing a site based management plan. Instead, in the context of this case, I am less concerned about the form as I am about the substance of the management plan.
  1. [22]
    That substance is limited to addressing current and potential environmental harm consequent upon breaching particular conditions of the EA. These are found in the judgment delivered on 18 December 2015, where I concluded that the appellant breached the EA by her failure to comply with conditions A2, A5, A10, B1, B2, B3, B6, C1, C2, C4, C5, D1, E1; F1, F3, and F4 of the EA.
  1. [23]
    At the time of my judgment, it seemed to me that the appellant’s compliance with the EA could be simply achieved by the timely preparation and implementation of an appropriate site based management plan (including stormwater management) containing reasonable and practicable measures to prevent or minimise environmental harm and environmental nuisance that may be caused by the ERA. In this regard the Site Based Environmental Management Plan,[12] and revised stormwater management plan,[13] associated with the previous proceedings remained both contemporary and relevant to this task.  Those plans, with appropriate changes having regard to my findings, would have satisfied the proposed orders.
  1. [24]
    The appellant contends that, to the extent those recommendations are not adopted, they are either:
  1. Outside the scope of the conditions of the Environmental Authority; and/or
  2. Not reasonable and practicable measures to prevent or minimise environmental harm with respect to those conditions.
  1. [25]
    As to the disputed measures now proposed by council’s Plan, the appellant contends that they are not reasonable and practicable measures, because:
  1. they are not practicable for the operation of the appellant’s long standing and small-scale slipway (even if suitable to other slipways);
  2. they involve an unreasonable financial burden (both initially and ongoing) on this small-scale Slipway; and
  3. such measures are really directed toward excluding entirely amenity impacts upon two residents of the area whose concerns (if honestly and genuinely held) are not reasonably held.
  1. [26]
    In the circumstances of this case, the appellant has been found in breach of the EA, and general environmental duty, by carrying on her activity in a way that causes, or is likely to cause, environmental harm, in breach of the EA, and her general environmental duty.[14]
  1. [27]
    The management plan must provide for reasonable and practicable measures required to prevent or minimise environmental harm to assure compliance with conditions A2, A5, A10, B1, B2, B3, B6, C1, C2, C4, C5, D1, E1, F1, F3, and F4 of and thereby lawfully operate the activity within the terms of the EA.[15]  Having regard to the tenor of my earlier judgment, the management plan must secure compliance with those conditions without derogating from, or adding to, the original grant of the EA or compromising the general environmental duty.[16]  By way of illustration, if the EA prohibits an activity (to avoid environmental harm), the court ought not allow a management plan to permit some activity (to ‘minimise’ environmental harm) under the guise of being a “reasonable and practical measure etc”.  Conversely, a management plan ought allow an activity (to avoid environmental harm) beyond the scope of the EA and the general environmental duty arising from the ERA.
  1. [28]
    In deciding the reasonable and practicable measures in the management plan to prevent or minimise harm pursuant to the Court ordered EPO, regard ought be had to the relevant factors in set out in s 319(2) of the Act, namely:[17]
  1. (a)
    The nature of the harm or potential harm; and
  1. (b)
    The sensitivity of the receiving environment; and
  1. (c)
    The current state of technical knowledge for the activity; and
  1. (d)
    The likelihood of successful applications of the different measures that might be taken; and
  1. (e)
    The financial implications of the different measures as they would relate to the type of activity.
  1. [29]
    Even though I was satisfied about each of factors (a) to (d) in relation to the challenged EPO, at the time of judgment, the parties rely upon further evidence about the relevant factors, including any financial implications of the required measures in relation to the proposed management plans. 

Site Operations

  1. [30]
    The scope of the required management plan must be considered in the context of the appellant’s particular operations comprising the ERA.
  1. [31]
    The Slipway comprises a concrete ramp with steel rails. A wheeled cradle on the Slipway is used to draw boats from the water, up the Slipway for maintenance and repair works.
  1. [32]
    The appellant describes the slipway operational activities in s 5 of the appellant’s plan,[18] which I accept as a matter for her to define the scope of her business.
  1. [33]
    Current operations include:
  1. Anti-fouling of boats using high water pressure;
  2. Application of anti-foul paint with roller and airless spray gun;
  3. Occasional sanding and painting of above hull and upper deck areas with roller and airless spray gun; and occasional boat repair including fibre glassing.
  4. Spot abrasive blasting using dry or wet methods is limited to three times yearly by an independent licensed contractor.
  5. Periodic outboard motor maintenance and repair is undertaken by a separate contractor.
  1. [34]
    The business services mainly fibreglass boats, but timber and steel boats are also slipped, with an estimated 90% of the work being anti-fouling services resulting in applying new anti-fouling to the hull of a boat below the waterline. The gross profit from trading of the Slipway operations for the two preceding financial years is only $49,000.[19]
  1. [35]
    The anti-fouling service comprises:
  1. (a)
    ramp cradle is lowered into the water;
  1. (b)
    a boat is then driven over the cradle with the vertical side arms in p1ace as guides (for monohull boats - arms are removed for multihulls as required).
  1. (c)
    when in position, the boat can be tied to the cradle;
  1. (d)
    the electric motor driven winch is then activated and the cradle is drawn up the ramp, the winching process is low speed and takes between 6 and 10 minutes to draw the boat/cradle up the ramp.  The speed of winching is determined by boat size and whether single line or double line pull is used;
  1. (e)
    the winching operations produce little noise;
  1. (f)
    when the cradle reaches the top of ramp, winch is disengaged and hold down chain is attached around cradle frame and secured to winch base as secondary hold in addition to winch gear/brake;
  1. (g)
    boat hull is inspected prior to water blasting to check for any issues;
  1. (h)
    water blaster is wheeled into place;
  1. (i)
    normal operations employ an electric high pressure, low volume water blaster;
  1. (j)
    water blaster is used to wash slime from hull;
  1. time taken for a 28-foot boat is normally approximately 15 to 30 minutes;
  2. depending upon size of boat and whether monohull or multihull, time to water blast can take 30 to 45 minutes approximately;
  3. all runoff from water blaster operation falls onto ramp and will run into the First Flush Collection Drain, or failing that, the Existing Collection Drain;
  4. when water blasting is complete, the water blaster is packed away to shed;
  5. where necessary, barnacles and similar growths are manually scraped from hull and running gear (i.e. propellers, shafts, stern drive legs, rudders and anodes) by hand;
  6. this hull scraping operation can take between 30 minutes and 1 hour, depending upon site of boat and extent of growths needing removal;
  7. following this stage, it is generally determined whether any other maintenance tasks are required (i.e. do sacrificial anodes need replacing, do propellers need repair and the like);
  8. it is normal when anti-fouling a boat to replace sacrificial anodes at the same time;
  9. anode replacement is generally conducted by Toorbul Marine;
  10. any propeller repairs and/or checking of gear oil in stem drive legs (if fitted) is conducted by an external mechanic;
  11. the boat is allowed to dry off before commencing anti-foul application;
  12. anti-foul application is preceded by masking of hull water line using removable masking tape and masking over any anodes not being replaced to prevent paint covering their surface;
  13. drop sheets are placed beneath the boat to catch any paint drips from anti-foul application;
  14. anti-foul is applied to the hull by hand roller by 1 or 2 persons on the Slipway;
  15. the antifoul application would generality take around 1 hour, depending upon size of boat;
  16. anti-foul is allowed to dry and then a second coat is again applied by hand;

(aa)anti-fouling of running gear can require a different anti-foul product to that applied to hulls i.e. fibreglass hulls as compared to metal running gear;

(bb)running gear i.e. shafts, rudders, propellers and stern drive legs (where fitted) have appropriate anti-foul applied by hand or using airless spray gun (airless spray gun is used for stem drive legs to get best coverage of components);

(cc)drop sheets are in place for all anti-foul applications;

(dd)following anti-foul application, anodes are replaced, masking tape etc. is removed and placed into bins;

(ee)where removed, propellers are refitted with new anti-foul having been applied by hand in the workshop prior to fitting back onto boat running gear;

(ff)when anti-foul is dry and the tide is at the appropriate height, the boat is returned to the water and the Toorbul Marine work is complete;

(gg)a boat on the slip for anti-foul operations as described above will generally be on the slip for two to three days;

(hh)the length of time is dependent upon the time of suitable  high tides and whether any parts needed (i.e. anodes, propeller repairs) can be sourced and the time taken for these parts to be acquired and transported to site for fitting.

  1. [36]
    The appellant offers incidental repair services, such as minor paint touch up, minor fibreglass repairs and polishing of boats whilst out of the water.
  1. [37]
    The painting activities are described as being “more for minor touch up painting”, for small repairs, where damage has been sustained to the boat and the damage requires surface repair (i.e. filling and sanding and then repainting).  Paint would be applied on the slipway by either hand or airless spray.  The appellant is prepared to repaint timber hulled boats using hand rolling and brushing, if required, but does not propose whole of boat repaints using compressed air paint guns.
  1. [38]
    Repair to timber work, steel work or fibreglass comprise
  1. For a timber hulled boat - replacement of damaged timber planking or ply work, which may require removal and replacement of the damaged element or simply cleaning, filling and then sanding prior to painting;
  2. For fibreglass sheathed timber hulled boats - removal of damaged fibreglass, timber repairs, reapplication of fibreglass sheathing and then painting.
  3. For steel hulled boats - areas may need cleaning out or cut out and new steel plating welded into place before surface finishing and painting.
  1. [39]
    Major structural repair jobs are not conducted on the slipway. Smaller boats may be removed into the shed for work. Similarly, boat parts will be removed and repaired in the shed and then reinstalled on the slipway.
  1. [40]
    The slipway operational hours are limited to 7am to 6pm Monday to Friday and 8am to 5pm on weekends, except for emergency. Boats may be moved on and off the slipway on the high tide at any time between 7am and midnight or in emergencies.
  1. [41]
    The appellant’s plan provides for general site management activates, restricted activities, and related measures, which will be relevantly discussed later.

Sensitive Receptors

  1. [42]
    Elimbah Creek is listed under the RAMSAR Convention as a Wetland of International Importance, as well as being identified under the QLD State Planning Policy as a wetland of high ecological value, a wildlife habitat, marine park (conservation zone) and declared fish habitat. The creek is linked to Pumicestone Passage, which forms an important part of Moreton Bay Marine Park.
  1. [43]
    Elimbah Creek and Pumicestone Passage downstream support a range of rare and threatened species of both marine life and avifauna. These species are listed for protection under local, state, commonwealth and international legislation, regulation and / or convention / treaties. Habitats in the waterways include significant areas of mangroves, saltmarsh, seagrass and intertidal flats. These have significant conservation value, and also serve as a conduit to the incorporation of contaminants into shellfish, fish and birds. The area is used for recreational and commercial fishing, including the taking of crabs, prawns and oysters for human consumption.
  1. [44]
    The nearest sensitive residential receptors for air quality (particulate matter i.e. dust and volatiles) and noise are the existing residences on Bishop Parade, Toorbul and the public areas around the Slipway, including Elimbah Creek. The nearest residences are approximately 20 m to 25 m south of the Slipway.
  1. [45]
    The appellant’s plan in section 3, ought better identify the noise sensitive receptors.

Potential Impacts

  1. [46]
    The appellant acknowledges that without adequate containment of the liquid and solid wastes from slipway operations, there is a high potential for the release of contaminants due to wind, rain and tidal inundation, which poses high risk to the ecosystem health of both Elimbah Creek and the Moreton Bay Marine Park.[20]
  1. [47]
    The appellant’s activities and equipment that may cause environmental impact are:
  1. Noise – vehicle and boat movements, using power tools, hammering, grinding/cutting, the operation of marine motors (outboard motors), sanding, scraping, spray painting, water pressure cleaning, shouting, filling and emptying waste bins, reversing beepers, alarms, air compressors, fans, winches and airless spray units.
  2. Dust - sanding, grinding, blasting (wet or dry), and fairing activities;
  3. Fumes & odour using solvent based paints, anti-fouling, associated solvents, varnish, paints, anti-fouling or other materials or products used at the site, and/or applied either by hand, airless spray or compressed air spray gun; and Fibreglass repair operations;
  4. Stormwater – wastewater and residuals/particulates associated with operations including high-pressure water blasting, hand-scraping, paint stripping, cutting, sanding and grinding, and anti-fouling and other painting, and rain and tidal inundation of the slipway.
  1. [48]
    In the context of these operations of the ERA, sensitive receptors and potential impacts, I now consider the contentious parts of the parties’ competing management plans cognisant of the findings made in the judgment and additional evidence.

Maintenance of Plant and Equipment

  1. [49]
    Condition (A2) of the EA provides that:

“(A2) The holder of this environmental authority must ensure that:

(i) all plant and equipment necessary to ensure compliance with the conditions of this environmental authority is installed; and

(ii) such plant and equipment is maintained in a proper and efficient condition; and

(iii)  such plant and equipment is operated in a proper and efficient manner.

In this condition, “plant and equipment” includes:

(i) plant and equipment used to prevent/and or minimise the likelihood of environmental harm being caused;

(ii) devices and structures to contain foreseeable scapes of contaminants or waste; and

(iii) fuel burning equipment.”

  1. [50]
    The competing management plan provisions proposed by the parties are short and substantially similar. Section 7.6 of the appellant’s plan provides that:

“7.6 Maintenance of plant and equipment

85. As part of ordinary operations the Slipway Manager will review the performance specifications of each piece of equipment to identify any equipment malfunction or abnormal operation which could result in excessive noise emissions.

86. In the event of such equipment malfunction or abnormal operation the Slipway Manager is to ensure that use of such equipment ceases and is not resumed until such equipment is either replaced or serviced to remove any malfunction and abnormal operation.

87. The Slipway Manager is to ensure plant and equipment is:

(a) operated in accordance with its use specifications; and

(b) periodically assessed to determine whether it is operating efficiently and cost effectively, and with minimal environmental impact.”

  1. [51]
    By comparison, s 6.1 of the council’s proposed management plan is in these terms:

“6.1  Plant &equipment

The Site Manager will monitor the performance of equipment daily to identify malfunctions or abnormal operations which could result in excessive emissions.

In the event of equipment malfunction or abnormal operation, the Site Manager will ensure that use of the equipment ceases and is not resumed until it is either replaced or repaired.

The Site Manager will ensure plant and equipment is:

  • Operated in accordance with this management plan;
  • Operated in accordance with its use specifications.”
  1. [52]
    It seems to me that the appellant’s proposal will sufficiently assure the implementation of reasonable and practicable measures to prevent or minimize the environmental harm, including environmental nuisance, in relation to condition (A2) of the EA.

Monitoring and Records

  1. [53]
    In relation to records, conditions (A3), (A5) and (F4) of the EA provide that:

(A3) A copy of this environmental authority must be kept in a prominent location readily accessible to persons involved in the activity. …

(A5) Copies of any record or document required to be kept by a condition of this environmental authority must be provided to any authorised person or administering authority on request.

…

(F4) Where waste is taken off site, the holder of this environmental authority must monitor and record the:

 (i) date, quantity and type of wastes removed;

 (ii)  waste receiving operator that removed the wastes off‑site; and

 (iii) destination of the waste.

  1. [54]
    The appellant’s plan incorporates the EA by annexure A, and variously prescribes monitoring and record keeping requirements in compliance with the conditions, and more, including:
  1. Responsibility of the Slipway Manager and any employees;[21]
  1. Incidents and failures;[22]
  1. Chemical storage;[23]
  1. Spillage prevention and cleanup;[24]
  1. Abrasive blasting;[25]
  1. Painting and spray painting;[26]
  1. Anti-foul preparation and application;[27]
  1. Fibreglass repair work;[28]
  1. Waste, including wastewater disposal;[29]
  1. Wind speed and direction monitoring;[30]
  1. Keeping of records, forms and retention;[31]
  1. Training given to the Slipway Manager and any employees;[32]
  1. Complaints.[33]
  1. [55]
    In contrast the respondent proposes a very detailed, sophisticated, and extensive monitoring and record maintenance in s 21 & 22 (and related provisions) regarding:[34]
  1. Weather forecast monitoring;
  1. Onsite wind monitoring;
  1. Dust deposition monitoring (sample collection and analysis);
  1. Air quality monitoring;
  1. Noise monitoring;
  1. Wastewater and stormwater system monitoring;
  1. Receiving environment monitoring;
  1. Employees and contractors;
  1. Any induction & training given to the Site Manager and any employees;
  1. Induction of contractors or short term visitors;
  1. The boats that are cleaned and repaired and the types of activities undertaken in respect of each boat including: date and time; duration, and materials and equipment used.
  1. Wind speed and direction;
  1. Maintenance of plant and equipment;
  1. Records of all incidents and remedial / corrective actions;
  1. Chemicals used and stored on Lot 20;
  1. Waste management;
  1. Monitoring records of wind speed and direction, dust deposition, noise (including assessment reporting), wastewater and stormwater and the receiving environment;
  1. Any written or oral complaint received in respect of the operations of the Slipway.
  1. [56]
    The assessed cost of conducting the monitoring programme proposed by the council is $44,500 (ex GST) per annum plus $1,700 ex GST capital expenditure, comprising:
  1. (a)
    $1,900/month for routine monthly water and sediment monitoring;
  2. (b)
    $4,400/annum for annual water, sediment and biological monitoring;
  3. (c)
    $500 for weather station;
  4. (d)
    $5,300/annum for dust depositional monitoring plus $1,200 to establish deposition stations; and
  5. (e)
    $12,000/annum for daily monitoring in employee costs.
  1. [57]
    In my view, with comparison to the scope of the EA, the council’s prescriptive recording and monitoring requirements substantially overreach and fall outside the limited recording required by conditions (A3), (A5) and (F4) of the EA. There are no conditions under the EA that impose monitoring of the impact of the activity to the extent sought by council, including for example s 21.4.2 of the council’s plan which seeks to impose regulatory monitoring where a health-related complaint is made, or if requested by council.
  1. [58]
    Further, I think that the scope and terms of the council’s proposed requirements are a disproportionate response to implement the EA having regard to the nature and extent of the appellant’s operation, and risks of environmental harm subject of the appeal. I do not accept that it is necessary to prescribe the day-to-day practicalities of observing the weather and wind speed in the conduct of the activity.
  1. [59]
    To the extent that the monitoring and record keeping is incidental to assure the implementation of reasonable and practicable measures to prevent or minimize the environmental harm arising from other provisions, I prefer the appellant’s proposal.
  1. [60]
    It seems to me that the appellant’s proposed monitoring and record keeping is appropriate and within the bounds of the EA.

Air Quality & Noise

  1. [61]
    As to odour, dust, noise and air quality generally, the relevant conditions of the EA are:

Nuisance

(A10) Notwithstanding any other condition of this environmental authority, this environmental authority does not authorise any release of contaminants, which cause or are likely to cause an environmental nuisance beyond the boundaries of the licensed place.

Noxious or Offensive Odour

(B1) Notwithstanding any other condition of this environmental authority no release of contaminants from the licensed place is to cause a noxious or offensive odour beyond the boundaries of the licensed place.

Dust and Particulate Emissions

(B2) No dust or particulate matter shall be permitted to emanate beyond the boundaries of the licensed place which can have an adverse effect on people living in or using the surrounding area.

(B3) All traffic areas must be kept clean or maintained in a manner so as to minimise the release of dust and particulate matter to the atmosphere.

Spray Painting

(B6) No spray painting is permitted in the open.  Spray painting must be carried out within a spray booth approved by the administering authority.

….

Emission of Noise

(E1) In the event of a complaint about unreasonable intrusive noise being made to the administering authority, and the administering authority considers that the complaint is not frivolous or vexatious, then the emission of the noise from the licensed place must not result in levels greater than those specified in Table 1 of the Noise Schedule.

SCHEDULE E TABLE 1

NOISE LEVELS AT A NOISE SENSITIVE PLACE

PERIOD

NOISE LEVEL AT A NOISE SENSITIVE PLACE MEASURED AS THE ADJUSTED MAXIMUM SOUND PRESSURE LEVEL

7:00 AM – 6:00 PM

Background noise level plus 5 dB(A)

6:00 PM – 10:00 PM

Background noise level plus 5 dB(A)

10:00 PM – 7:00 AM

Background noise level plus 3 dB(A)

NOISE LEVELS AT A COMMERCIAL PLACE

PERIOD

NOISE LEVEL AT A NOISE SENSITIVE PLACE MEASURED AS THE ADJUSTED MAXIMUM SOUND PRESSURE LEVEL

7:00 AM – 6:00 PM

Background noise level plus 10 dB(A)

6:00 PM – 10:00 PM

Background noise level plus 10 dB(A)

10:00 PM – 7:00 AM

Background noise level plus 8 dB(A)

…

(G9) “commercial place” means –

a place used as an office or for business or commercial purposes.

(G10) “environmental harm”

(1)  is any adverse effect, or potential effect (whether temporary or permanent and of whatever magnitude, duration or frequency) on an environmental value, and includes environmental nuisance.

(2)  may be caused by an activity - 

(a)  whether the harm is a direct or indirect result of the activity; or

(b) whether the harm results from the activity alone or from the combined effects of the activity and other activities or factors.

(G11) “environmental nuisance” is unreasonable interference or likely interference with an environmental value caused by—

(a)  noise, dust, odour, light; or

(b)  an unhealthy, offensive or unsightly condition because of contamination; or

(c)  another way prescribed by regulation.

(G12) “intrusive noise” means –

noise that, because of its frequency, duration, level, tonal characteristics, impulsiveness or vibration -

(a)  is clearly audible to, or can be felt by, an individual; and

(b)  annoys the individual.

In determining whether a noise annoys an individual and is unreasonably intrusive, regard must be had to Australian Standard 1055.2 – 1997 Acoustics – Description and Measurements of Environmental Noise Part 2 – Application to Specific Situations.

(G13) “noise sensitive place” means any of the following places –

(a)   a dwelling; …

(G14) “noxious” means – 

harmful to health or physical well being.

(G15) “offensive” means –

causing unreasonable offense, is unreasonably disagreeable to the sense; is disgusting, nauseous or repulsive.

  1. [62]
    Section 9 of the Act defines “Environmental value” as follows:[35]

“Environmental value” is –

(a) a quality or physical characteristic of the environment that is conducive to ecological health or public amenity or safety; or

(b) another quality of the environment identified and declared to be an environmental value under an environmental protection policy or regulation.

  1. [63]
    There is a continuing dispute between the parties about the appellant’s activities including evident paint and anti-foul residue.[36] The tarpaulin arrangement used by the appellant has proved ineffective.  So much was establish by the expert evidence of Mr Galvin, corroborated by complaint evidence of affected residents at the first hearing.  There is no doubt, and I found, that dust, noxious or offensive odours and noise will potentially escape the land boundaries and affect surrounding residents. 
  1. [64]
    The appellant identifies performance and mitigation measures about air quality at sections 4.1, 4.2, 4.3 and 4.4 of her plan. Measures to clean and maintain traffic areas for condition B3 are largely uncontroversial and identified in 7.2 of the appellant’s plan and 6.3.1 of the Council’s plan.[37]
  1. [65]
    The controversy arising from the parties competing plans is the use of containment facilities to manage spray painting, and other dust, noxious or offensive odours and noise.

Containment of odour, dust and noise

  1. [66]
    The appellant acknowledges the sources of potential acoustic impacts and impacts on air quality her proposed plan including:[38]
  1. (a)
    dust generation from sanding, grinding, blasting (wet or dry) and fairing activities;
  1. (b)
    fumes generated by use of solvent based paints, anti-fouling, associated solvents and other materials applied either by hand, airless spray or compressed air spray guns;
  1. (c)
    odours generated by the use of varnish, paints, anti-fouling or other materials or products used at the site;
  1. (d)
    odour generated by fibreglass repair operations;
  1. (e)
    noisy activities such as vehicle and boat movements, sanding, abrasive blasting, shouting, filling and emptying waste bins, reversing beepers, alarms, grinding and cutting steel; and
  1. (f)
    noisy machines located outside of buildings and close to sensitive receptors, including air compressors.
  1. [67]
    Historically, rails running between the slipway on Lot 1, across the road, and into the shed on Lot 20 enabled work to be done within the containment formed by the shed on lot 20. Although the shed has been replaced with a newer larger shed, the rails have now been removed, and the practice has ceased.
  1. [68]
    Both parties propose different containment structures to surround the work area.
  1. [69]
    Mrs Cuthbert maintains that her proposed 3.5 m high containment structure with a canvass partition density of 600g/m2, fixed around three sides of the work area, and a canvass gate partition to close the fourth side of the boat upon slipping, leaving only the roof exposed, is a sufficient measure.[39]
  1. [70]
    The council contends that at least a 4m high barrier, in accordance with Mr Goodfellow’s design, having a density of 15kg/m2 with negligible gaps and being 20m long along the Bishop Parade frontage of Lot 1 with 15m returns located on the north‑west and south‑east boundaries of the slipway, would cost in the order of $45,000.[40]  Additionally, the council contends that its proposed Carcoon containment facility will also serve as an effective control to address the other air quality conditions (not just spray painting).  For dust and odour containment, a custom made 14m long x 6m x 6m high inflatable workstation (Carcoon) without the fixed floor would cost some $30,000.
  1. [71]
    With the other operational measures in mind, the parties respectively contend that their containment facility provides reasonable and practicable measures to prevent or minimise environmental harm by securing compliance with the relevant conditions of the EA. I turn to those now.

Spray Painting

  1. [72]
    Spray painting is expressly subject of Condition (B6) which prescribes that spray painting must be carried out within a spray booth approved by the administering authority. The council as the “administering authority” is charged with the power to approve an effective spray booth for the purposes of condition (B5).
  1. [73]
    The issue is not whether a spray booth is required but rather what type of booth is effective having regard to the booth’s purpose and the scope work.
  1. [74]
    It seems to me that the purpose of the prescribed spray booth is multifactorial, including paint fumes, odours, and airborne particulates.
  1. [75]
    Council’s plan requires an inflatable Carcoon containment facility with three sides and the roof sealed, with ventilation and filtration systems operational. Mr Galvin describes the Carcoon facility as follows:[41]

 “51 A more reasonable and practical solution which was also considered was a large self supporting Workstation made by Carcoon Australasia.  The systems are an inflatable working environment, similar in concept to a spray booth but is not as expensive nor does it involve permanent fixtures.  Examples of the system in use elsewhere are shown in Figure 2 and Figure 3.  In Figure 3, a material floor can be seen.  The supplier can modify the floor depending on the end use.  In the case of the slip, the floor could be split and folded back while the boat was being slipped and then placed back under the boat once operational, or a second separate tarp system could be placed on the floor and used to capture particulate matter which would also be beneficial with regards to conditions B3 and B4.

  52 The system can be inflated on the slip and constructed in a way in which boats can be slipped while the system is inflated.  Should work stop, the system can be deflated and left to sit over the boat until it was ready to be worked on again.  To check how the system works, I watched a number of videos on YouTube which showed that the system is relatively easy to place and inflate.

  53 Another benefit is that the Carcoon inflatable system makes use of a ventilation fan (1.5 m3/s) to inflate the system, and a second fan (1.5 m3/s) to horizontally draw air through the system which is filtered through both paint arrest filters (i.e. filters which trap overspray) and then carbon filters (filters that trap odorous material).  The use of filters as recommended by the supplier in combination with the processes of a properly detailed SBEMP would reduce the risk of environmental harm and nuisance.”

  1. [76]
    Mr Galvin provides a cost estimate for a suitable Carcoon booth to be approximately $30,000 (ex GST) for a custom Carcoon spray booth to $37,900 ex GST for a standard Carcoon 15.5 workstation.[42]
  1. [77]
    The appellant argues that the imposition of a Carcoon booth is disproportionate to the scale and commerciality of her 55 year old facility, and is a measure more suited to large scale industrial operations.[43]  In this vain the appellant contends that the Carcoon is not a reasonable and practical measure because it imposition would necessitate abandonment of spray painting.  It is submitted that:[44]

“75. In the event that the Court determines that, to satisfy condition (B6), spray painting under the SBEMP must only occur in the Carcoon facility, or some similar such enclosed facility, Mrs Cuthbert’s operations will need to be limited to hand brushing and roller applications of paint and anti‑foul …”

  1. [78]
    She also argues that that infrequent activities releasing odour from anti-foul (being 90% of the activities at the Boating Maintenance and Repair Facility) would occur for an hour or so each time a boat is slipped. So, she argues, even if a boat was slipped every 2 days, the potential odour would be no more than three hours or so over an entire week.[45]
  1. [79]
    The appellant relies upon Mr Galvin’s, acceptance that such a measure may better suit particular operations such as spray painting cars to protect the paint and finish, and their usual location in or adjacent to numerous sensitive receptors in dense urban areas. She submits that Mr Galvin “accepted, the use of the existing tarpaulin arrangement (which do not yet reflect the more formal design of four sided, engineered enclosure in the revised SBEMP) already contain ‘overspray’ as is evident from the aerial photographs”.  However, Mr Galvin went on to say:[46]

“I did prepare this part of the affidavit in response to the suggestion that the containment facility would contain everything.  The point being that whether or not that gurney was directed upward or at a boat that whatever was going on inside wouldn’t be totally contained.”

  1. [80]
    Mr Galvin also disposed that such a measure is not usual for the boat business because unlike the unusual circumstances where the appellant works close to the water on the slipway itself, spraying work in like operations are usually removed from those sensitive areas.[47]  Dr Thorogood aptly described the importance of the containment of contaminants in the appellant’s facility as follows:[48]

“As has been previously established, the slipway adjoins and in‑part lies within Elimbah Creek, a sensitive receiving environment of acknowledged ecological and conservation significance.  This presents significant technical challenges relating to the containment of contaminants and affords no ‘second chance’ to capture or recover contaminants that escape the work‑area.  Consequently, both the infrastructure and management of the slipway must be capable of preventing the escape of contaminants, and also able to be implemented with a very high degree of reliability.”

  1. [81]
    I agree. It seems to me that an appropriate spray painting booth for the facility in this location should be completely enclosed to effectively contain the airborne contaminants from spray painting. The Carcoon booth or similar enclosed facility would satisfy this, but the same cannot be said of the appellant’s proposal.
  1. [82]
    The attendant cost imposition depends on the scale and commerciality of the appellant’s activity. If the appellant proposed wholesale spray painting of hulls or large areas of a hull, then a Carcoon booth or like booth is warranted with all its attendant costs. However, the appellant does not propose activities of spray painting the whole or substantial part of slipped boat but accepts spray painting is proposed for smaller discrete sections of a slipped boat. In these circumstances, a booth of the Carcoon type or magnitude would be incongruous with, and therefore, overkill for the appellant’s operations. It seems to me that the proposed spray painting of small discrete sections of a slipped boat would require a much smaller fully enclosed mobile booth that could abut and isolate the work area, but I refrain from further speculation about design. Even so, such a booth requires council approval.
  1. [83]
    Since no other booth is proposed, or approved, paragraphs 134, 135 and 150 of the appellant’s plan must be modified to ensure that no spray painting including anti-foul (delivered by airless, compressed or other spray air guns) is carried out unless and until she has a spray booth suitable to the task and approved by council pursuant to condition (B5).
  1. [84]
    In the meantime, the appellant must limit her activity to hand brushing and roller applications of paint and anti‑foul.

Noxious or Offensive Odour

  1. [85]
    I remain satisfied that the appellant released contaminants, which caused a noxious or offensive odour beyond the boundaries of her premises in breach of condition (A10) and (B1_ of the EA.[49]  It is that status quo which the appellant tries to address by her proposed plan.
  1. [86]
    Mr Galvin preferred council’s proposed fully enclosed and air filtered Carcoon facility as being “the minimum reasonable and practical measure to ensure compliance with the conditions of the EA and to minimise nuisance and/or harm.”[50] In contrast, he testified that the appellant’s containment facility would not sufficiently prevent or minimise environmental harm in the context of odour (including odorous painting activities).  He opined that containment facility would be unlikely to provide any real mitigation against the release of contaminants outside the property apart from large particles which drop out close to their source in any case.[51]  He considered that the appellant’s proposed facility does not constitute a valid air quality control device as it does not physically enclose the source of released material and odours nor does it filter them.[52]
  1. [87]
    The council also relied upon photographs showing a plume of water spray escaping from the top of an open top tarpaulin arrangement.[53]  Mr Galvin extrapolated from the behaviour of the heavier water droplets that smaller potential odorous matter/gas molecules would be even more likely to escape the tarpaulin arrangement.[54]  The appellant argues that her proposed facility will be effective, especially since she seeks to ensure that “plume” effects on odours are removed or limited, due to the absence of wind within the containment facility. 
  1. [88]
    Unlike, spray painting, the EA does not proscribe odour-generating activities in the absence of an approved spray booth.  Nevertheless, the focus must be on reasonable and practicable measures to prevent or minimise environmental harm resulting from noxious or offensive odour.  The appropriate measure is not required to address all odour, or even completely eliminate all odours beyond the boundary.  The relevant odour must be noxious in the sense of being harmful to health or physical well being,[55] and/or offensive in the sense of causing unreasonable offense, being unreasonably disagreeable to the sense; or disgusting, nauseous or repulsive.[56] 
  1. [89]
    This requires consideration of subjective and objective perception. I had the advantage of hearing evidence from lay witnesses including proximate residents, Mr Ross and Mrs Hudson, about past impacts. 
  1. [90]
    Mr Ross, a former owner of the ERA, testified about odours from paints/anti-fouls being sprayed on to boats with visible overspray escaping into the surrounding environment.[57]  He deposes that fumes and odour caused by the operation since December 2015 was very offensive, and that he needs to close his house to escape the smell.[58]  He testified that the odour has been ‘certainly’ excessive and ‘very annoying’, and rejected the suggestion that his perception was biased by personal animosity with the appellant and her husband.[59]  Mr Ross was particularly concerned about his medical diagnosis of kidney cancer.[60]  Ms Hudson has experienced non-offensive odour nearer to the slipway boundary.[61]  Other local residents were less perturbed by the operations.
  1. [91]
    It seems to me that, in windy conditions, the appellant’s proposed containment facility will have a negligible capacity to contain odious fumes and gases, and quell complaints. In the absence of a fully enclosed work area, the reality for the appellant is that odious activities must be suspended when conditions are likely to emit noxious or offensive odour beyond the property boundaries. As I mentioned above, the appellant might consider a much smaller fully enclosed mobile booth that could abut and isolate the work area.
  1. [92]
    In the circumstances, and although likely to be more effective than the appellant’s proposal, I am not satisfied that a facility of the Carcoon cost, type or magnitude is reasonable and practical. Again, I think it is incongruous with, and overkill for the appellant’s operations. Otherwise, I accept the appellant’s other planned measures.

Dust and Particulate Emissions

  1. [93]
    I remain satisfied that, in the course of the operation of the ERA, the appellant has released dust/particulate matter beyond the boundaries of the premises in breach of conditions (A10), (B2) and (B3) of the EA.
  1. [94]
    It is accepted by both parties that a containment facility bounding the work area is required in addition to the measures proposed by the appellant’s plan.
  1. [95]
    The appellant acknowledges the potential impacts in paragraph 24 of her proposed plan include dust generation from sanding, grinding, blasting (wet or dry) and fairing activities. She asserts that her proposed 3.5 m high containment structure enclosed by canvass partitions (but no roof) is a sufficient measure to address those potential impacts.[62]  I note that the design has its creek side below the catchment drain, and material caught by the screen could contact the slipway on the waterside of the drain.
  1. [96]
    The council contends that at least a 4m (to 5m) high barrier, in accordance with Mr Goodfellow’s design, with solid walls extending 20m long along the road frontage and with 15m returns along.  Additionally, the council maintains that the proposed Carcoon containment facility will also serve as an effective control to address dust. 
  1. [97]
    Again, I reject council’s argument that the Carcoon facility is reasonable and practical in the circumstances of the appellant’s operations. I discuss later the impact of dust and particulate on water quality. Further, it seems to me that the issue of noise will largely govern the nature and scope of an appropriate containment facility in any event.

Noise

  1. [98]
    I also remain satisfied that the appellant has failed to comply with conditions (A10) and (E1) of the EA in the conduct of the ERA.
  1. [99]
    Relevant acoustic considerations and control measures incorporated in the appellant’s proposed plan are:
  1. (a)
    restrictions on hours of operations;
  2. (b)
    improved acoustic shielding across the southern boundary of the Slipway abutting Bishop Parade, Toorbul providing increased acoustic amenity to sensitive receptors;
  3. (c)
    utilisation of portable acoustic screens;
  4. (d)
    introduction of a new electric winch system;
  5. (e)
    utilisation of a new electric water blaster;
  6. (f)
    time limitation on use of electric water blaster and hammering;
  7. (g)
    restriction on activities related to paint/anti-foul stripping and hull preparation within the containment facility;
  8. (h)
    fitting of exhaust silencers on all pneumatic tools; and
  9. (i)
    erection of signage discouraging excessive noise.

Operating Times

  1. [100]
    The appellant is willing to confine noisy work to 7 am to 6 pm from Monday to Friday, and 8am to 5pm on Saturday and Sunday (including on public holidays), no work between those times, except for movement of boats between 7 am and midnight or in emergencies.[63]
  1. [101]
    However, the council’s proposed plan imposes further limits in operating hours,[64] especially the for the use of airless or compressed air guns to 7am to 6pm Monday to Friday, and 8am to 5pm on Saturday.[65]
  1. [102]
    Critically, the EA noise parameters do not discriminate between weekdays and weekends, or between particular days of the week, including Saturday and Sunday. There is no basis for the court to derogate from the EA, except where the appellant voluntarily imposes self-restraint. The operations will nevertheless harnessed by the noise emissions parameters set by (E1) of the EA.
  1. [103]
    I accept the appellant’s self-imposed restrictions prescribed in the appellant’s plan.

Noise Barrier

  1. [104]
    A fence bounds Lot 1. I have found that it had gaps, had insufficient density to be classed as an acoustic barrier and was of insufficient height to mitigate intrusive noise impacts at sensitive receivers across Bishop Parade. I concluded that it provided no real effective acoustic shielding or screening of the noise generated by the operations on the slipway. So much is consistent with the continuing complaints of proximate residents.
  1. [105]
    The appellant is not required to silence all noise likely to emanate from the operations.
  1. [106]
    Condition (E1) of the EA is in curious terms. The acceptable upper noise levels are predicated upon “the event of a complaint about unreasonable intrusive noise … not frivolous or vexatious”.  In that event, in respect of residents, condition (E1) of the EA permits noise emissions of levels not greater than the “Background noise level plus 5 dB(A)” measured at the dwelling, even if subject of a sincere complaint of “unreasonable intrusive noise”.[66]
  1. [107]
    It is therefore necessary to consider the efficacy of the competing proposals and determine whether one or both will (in the event of genuine complaint) reasonably and practically attenuate the noise in the appellant’s particular operations. Both parties seeks to mitigate acoustic impacts using sufficiently dense barriers blocking the line of sight between the source and sensitive receptors.[67] 
  1. [108]
    The appellant proposes the 3.5 metre-high canvass containment facility surrounding the work area with a density of 600g/m2 partition, fixed around three sides, with a further canvass gate partition closing the fourth side of the boat upon slipping, leaving only the roof exposed.[68] 
  1. [109]
    In contrast, council’s plan seeks to impose Mr Goodfellow’s design of a 4m high barrier with a higher density of 15kg/m2 and negligible gaps, extending 20m along the road frontage of Lot 1 with 15m returns along the north‑west and south‑east boundaries of the slipway.[69]
  1. [110]
    Mr Goodfellow opines that this form of noise barrier is an essential part of the minimum noise mitigation requirements.[70]  A gate can be designed and constructed consistent with the fabrication of the noise barrier, with negligible gaps and sealed when closed.  Mr Goodfellow deposed that:[71]

“In my view, if the 4m acoustic barrier is not installed then the operations from the slipway cannot continue, as they will continue to have unreasonable impacts on the surrounding receptors and will be operating without all reasonable and practical mitigation measures.”

  1. [111]
    He concludes in his affidavit sworn 3 March 2017 that:[72]

“12. It is my view that if the DRC SBEMP (or the earlier SBEMP put forward on behalf of Ms Cuthbert that was the subject of my SBEMP affidavit – DOC.88) was to be implemented then unacceptable acoustic impacts would result for the surrounding receiving environment as a result of inadequate screening and inadequate control on noisy activities and equipment.

13. In my view, the DRC SBEMP (and the earlier SBEMP put forward on behalf of Ms Cuthbert was that the subject of my SBEMP affidavit – DOC.88) does not contain reasonable and practicable measures to prevent or minimise the environmental harm, including environmental nuisance, relevant to my area of expertise and, as such, does not comply with the requirements of the Judgment of the Court of 18 December 2015.”

  1. [112]
    The appellant argues that the premise underpinning Mr Goodfellow’s recommendation is flawed because:[73]
  1. (a)
    he remains totally reliant upon untested data collected by a third party to establish his ‘predicted noise levels’ in the absence of undertaking any acoustic monitoring himself of current activities;
  1. (b)
    he has not taken the appropriate modelling exercise to determine what level (height) of screening might otherwise cut the line of sight from the Slipway to the receptors or impact on the proximity of acoustic measures to the source, so as to affect the transmission of noise, a key determinant in the acoustic attenuation measures;[74]
  1. (c)
    he has not actually undertaken any investigation or modelling to support the conclusions he seeks to draw from his ‘predicted noise levels’ in terms of residual exceedance;
  1. (d)
    he has not performed assessment of ‘background noise level’ (against which any exceedance ought to be properly measured under condition (E1) of the Environmental Authority) without regard to the first limb of the definition of “background noise level” in Schedule G, Definitions (G5) of the Environmental Authority.
  1. [113]
    The EA defines “Background noise level” disjunctively and in the alternative as follows:

“(G5) “Background noise level” means either –

 LA90,T being the A-weighted sound pressure level exceeded for 90 percent of the time period not less than 15 minutes, using Fast response; or

 Labg,T being the arithmetic average of the minimum readings measured in the absence of the noise under investigation during a representative time period of not less than 15 minutes, using fast response.”

  1. [114]
    The council relies upon the accepted evidence of the affected residents, and the expert acoustic evidence of Mr Goodfellow to support the 4m high barrier.
  1. [115]
    The appellant argues that properly construed, the LA90,T test under the first limb of condition (G5) does not expressly exclude, therefore includes, the noise under investigation from the “background noise level”, whereas the Labg,T test in the second limb, expressly excludes the noise under investigation.  Therefore, it is asserted that Mr Goodfellow’s measurement isolates the background noise.
  1. [116]
    I do not accept the appellant’s construction argument, which in my respectful opinion is incongruous with the cognate second limb and leads to an absurd outcome of conflating the background and activity noise derogating from the purpose of condition (E1) and Table 1 of the Noise Schedule. In my view, properly construed, the first limb of the definition is a measurement of background noise levels, which by necessary implication excludes the activity subject of the investigation. Even so, I accept that the potential unmitigated noise levels from the machinery typical of the appellant’s slipway operations are likely to attract genuine complaints from closer households of unreasonable intrusive noise that exceeds the maximum levels calculated in accordance with Table 1 of the Noise Schedule.
  1. [117]
    The concerns and locations of Ms Hudson and Mr Ross are different as between them, and also when compared to other witnesses. The evidence of Mr Ross, which (along with some of Ms Hudson’s evidence) stands in stark contrast to the testimony of Mr Evans and Mr Haynes who live adjacent to the slipway at a similar distance to that of Mr Ross. Mr Ross did not identify the relevant dates and timeframes in which his complaints relate, and the particular noise he says is causing him nuisance. In cross-examination Mr Goodfellow accepted that Ms Hudson was unlikely to be affected by noise, other than in respect of certain activities, including infrequent abrasive blasting and water blasting, subject to meteorological conditions, such as wind direction and speed and pressure inversion which would ordinarily be typically less in the daytime (and ordinarily seen in the morning or evenings).[75]  However, he indicated that he had not actually undertaken those calculations in detail[76] and that his calculations did not account for the existing fence having some ameliorative effect.[77]
  1. [118]
    On my reckoning the lay evidence lacks sufficient precision to enable an assessment under condition (G12) of whether the complained noise, in terms of frequency, duration, level, tonal characteristics, impulsiveness or vibration, was unreasonably intrusive, having regard to the Australian Standard 1055.2–1997 Acoustics – Description and Measurements of Environmental Noise Part 2 – Application to Specific Situations.[78] 
  1. [119]
    At the first hearing, I accepted Mr Goodfellow’s evidence critical of the appellant’s existing boundary treatment in reliance on his recollection of unrecorded background noise, noise limits, typical noise level ranges for some of the operations of the slipway, estimates of the potential noise levels of the sensitive receiver locations (the three closest residences) absent any noise mitigation.[79]  Mr Goodfellow took his L90 background noise measurements between 2 and 7 December 2016 by the installation of a noise monitor at sensitive receptor 2, namely Mr Ross’s property.[80]  Whilst, the noise levels were not recorded I accepted that Mr Goodfellow has a reliable recollection of them.[81]  The background noise level environment surrounding the premises is low in the order of 36 to 37 dB(A) during the daytime (7 am to 6 pm), 28 to 30 dB(A) during the evening (6 pm to 10 pm) and night time (10 pm to 7 am).[82] 
  1. [120]
    Based on this and cognate evidence, I found that the appellant’s unmitigated operation releases noise at such a level as to be likely to result in environmental harm; and it is highly likely that the acoustic levels prescribed in condition (E1) are exceeded by the appellant’s operations.[83]
  1. [121]
    The second hearing did not afford me much more additional assistance by way of site specific measurements vis-à-vis line of sight, specific modelling or ground truthing of the noise mitigation measures as proposed by either party, especially the appellant’s proposal.
  1. [122]
    Mr Goodfellow did not take actual measurements of the noisy activities sourced from the appellant’s actual activities and machinery to isolate background noise otherwise based on his own measurements, and he did not model the effect of the appellant’s proposed 600g/m2 vinyl tarpaulin.
  1. [123]
    Mr Goodfellow opted for typical slipway noisy activities drawing upon the MRG Environmental Measurement Database, AS2436‑2010 Appendix A and DEA Draft Environmental Guidelines for Boat Building and Maintenance 1994,[84] for example, water pressure cleaning, grit blasting, grinding, hammering etc. He tabulated his predicted noise levels and the residual daytime exceedance at the sensitive house sites with no barrier, a 4m high barrier, and a 5m high barrier against a daytime background from 7 am to 6 pm.[85]  By comparing the component and potential noise levels for ERA activity, Mr Goodfellow’s predicted noise levels from the operations of the slipway mitigated council’s 4m proposal ranges from 16dB(A) for hull scraping up to 72 dB(A) for grit blasting.44  Compared to the averaged tolerance threshold of 41dB(A) (using the lower background noise level plus 55dB(A)) annoyance is predicably significant for some activates including:
  1. (a)
    water pressure cleaning 46 dB(A);
  1. (b)
    grit blasting 72 dB(A);
  1. (c)
    grinding 53 dB(A);
  1. (d)
    forklift 53 dB(A);
  1. (e)
    outboard engine test 56 dB(A);
  1. (f)
    chainsaw 63 dB(A);
  1. (g)
    airless spray 46 dB(A);
  1. (h)
    circular Saw 45 dB(A).
  1. [124]
    He deposed that the existing fence height and addition of the vinyl would provide negligible acoustic mitigation of site noise impacts to the most exposed surrounding sensitive receivers.[86]  He deposed that the appellant’s proposed 600g/m2 density is well below the required density to be classed as an acoustic barrier, which he opines typically requires a minimum surface density of 10-12.5kg/m2.[87]  Whilst Mr Goodfellow accepted the use of 600g/m2 vinyl tarpaulin would give some acoustic attenuation,[88] he maintained the need for a 4m high acoustic fence with 15kg/m2 material density.[89]  In the absence of any modelling using the appellant’s proposed 600g/m2 vinyl tarpaulin, Mr Goodfellow testified that with a reduction in the height of the council’s proposed 4m barrier, attenuation would be reduced, and that the exceedance would increase.[90] 
  1. [125]
    As I said in my last judgment, the council bears the onus of proof governed by the civil standard of proof, being the balance of probabilities but having regard to the “sliding scale” described in Briginshaw v Briginshaw (1938) 60 CLR 336.[91] Having regard to the consequences of the outcome of this proceeding, in my view, the appropriate standard of proof to be applied is that at the higher end of the civil standard in accordance with the Briginshaw principles.
  1. [126]
    It seems to me that the council’s approach, indicative of likely contravening annoyance at sensitive receptors, lacks appropriate precision supporting the design and construction of an acoustic mitigation barrier of the magnitude and costs proposed. It seems to me that the imposition of condition (E1) and related tables necessitates actual measurement of background and component noise relevant to the complaint. It is not enough, to point to predictions based on general industry standards and imprecise measurement.
  1. [127]
    The parties also dispute whether the proposed structures will be subject of further town planning and building approvals. The appellant relies upon uncertainty about requisite approvals and consents for council’s proposed 4m high acoustic barrier. The appellant’s counsel argues that:[92]

“It remains unknown whether such approvals and consent could possibly be obtained and, therefore, were such a prescriptive requirement be imposed under any SBEMP, it might be practically prohibitive on the continuation of the existing lawful use, unless an exception was granted should those approvals and consents not be obtained.”

  1. [128]
    On the contrary, the council argues that the submission is founded on a misconception. The council argues that the requirement for the 4m high acoustic barrier in the management plan results from a direction under an order and therefore is exempt development.[93]
  1. [129]
    Item 6 of Table 5 of Schedule 4 of the Sustainable Planning Regulation 2009 (Qld) provides that “All aspects of development a person is directed to carry out under a notice, order or direction made under a State law” is development that cannot be declared to be a development of a particular type.[94]
  1. [130]
    Section 232 of the Sustainable Planning Act 2009 provides relevantly:-

“232 Regulation may prescribe categories of development or require code or impact assessment

  1. (1)
    …
  2. (2)
    Also, a regulation may prescribe development that a planning scheme, a temporary local planning instrument or a preliminary approval to which section 242 applies can not declare to be self‑assessable development, development requiring compliance assessment, assessable development or prohibited development.
  3. (3)
    …”
  1. [131]
    The effect of the section and the schedule to the Regulation is that all aspects of development a person is directed to carry out under a notice, order or direction made under a State law is exempt development.
  1. [132]
    In this case, the Court has ordered on 18 December 2015:-

 “1. The appeal is allowed in part;

 2. The review decision of the Council made on 4 May 2015 is set aside;

  1. The Environmental Protection Order dated 31 March 2015 is set aside;
  2. In substitution for the Environmental Protection Order dated 31 March 2015, an Environmental Protection Order will issue, requiring the appellant to prepare and lodge with the Council within 90 days of the order:
    1. (a)
      A stormwater management plan for approval by the Council pursuant to Condition C1 of the Environmental Authority No. 250000301; and
    2. (b)
      A site based management plan containing reasonable and practicable measures to prevent or minimise the environmental harm, including environmental nuisance, in relation to conditions A2, A5, A10, B1, B2, B3, B6, C1, C2, C4, C5, D1, E1; F1, F3, and F4 of the Environmental Authority No. 250000301.
  3. Each party will bear their own costs of the appeal unless either party applies for a different order within 14 days.”
  1. [133]
    Whilst it is true that an EPO is an order made pursuant to a State law, namely the Environmental Protection Act 1994 (Qld), the order merely directed the appellant to deliver and obtain approval of a plan.  The parties have since acceded to this court to determine the dispute about its contents.
  1. [134]
    I do not accept that the order’s direction to deliver a management plan for council approval made the provisions of the plan a direction under an order and therefore is exempt development.[95]  If it were as contended by the council, that the structure is exempt development, it would be incumbent on the count at this juncture to properly consider engineering, building and town planning matters.  At best, council seeks to impose a requirement to engineering certification of the noise (acoustic) barrier and enclosures.[96] 
  1. [135]
    In the end, I am unpersuaded, in the absence of this site specific evidence, that the appellant’s proposed 3.6 m high 600g/m3 containment facility will be effective for the appellant’s operation, or whether councils’ proposal ought be accepted as to reasonably and practically attenuate the noise in the appellant’s particular operations.  Further, in my view, the acoustic mitigation structure ought be subject of engineering and building regulatory requirements. 
  1. [136]
    In these circumstances, where the appellant self imposes limitations, I am not in a position to reject the containment facility as prescribed in the appellant’s plan.

Above Deck Limitations

  1. [137]
    The council seeks to limit the appellant’s activities to below deck level with the exception of non-powered hand tools (which allows the use of spanners, screw drivers, hand sanding, etc., but excludes noisy impact hand tools, such as hammers).[97] 
  1. [138]
    It seems to me that such a measure would derogate from the grant of the EA, and impermissibly limit the appellant’s operations wherein 90% of the activities are undertaken below the deck in relation to anti-foul. Further, the nuisance of any on deck activities will be ameliorated by the appellant’s planned containment facility.
  1. [139]
    In the result, I am not persuaded that the council’s proposal is practical and reasonable.

Certification of the Noise (Acoustic) Barrier and Acoustic Enclosures

  1. [140]
    The council seeks to impose a requirement to engineering certification of the noise (acoustic) barrier and enclosures.[98] 
  1. [141]
    It may well be that the preferred planned containment facility may require building approval and engineering certification. But these are matters for proper design, town planning application, assessment and approval by the council.[99] 
  1. [142]
    It is not within the scope of this proceeding to pre-judge proper assessment and certification to implement reasonable and practical measures.

Limitation on the use of Pneumatic Tools

  1. [143]
    The council also seeks to prohibit the use of pneumatic tools in the appellant’s operations.[100]  This is not the subject of Mr Goodfellow’s gaze, and the appellant’s plan prescribes exhaust silencers for all pneumatic tools.[101]  I accept the appellant’s proposal as practical and reasonable.

Limitation on Noisy Hand Tool Operation and Electric Water Blaster

  1. [144]
    I am similarly unpersuaded by the council’s plan to limit noisy hand tool operation (i.e. grinding, orbital sanding, routing, timber planer, chainsaw, circular saw, spraying, and polishing) to no more than one hour continuous operation, cumulative in any four-hour period.[102]  In contrast, the appellant seeks to limit that noisy hand tool operation to no more than one hour in any three-hour period,[103] which I accept as practical and reasonable.
  1. [145]
    Similarly, the council also plans to limit water pressure cleaning with an electric water blaster to no more than one hour in any day,[104] whereas the appellant proposes to limit that use to no more than three hours in any day, given its use not only in slipway operations but also in clean-up.[105]  It seems to me that the appellant’s planned course is practical and reasonable.

Limitation on Abrasive Blasting

  1. [146]
    The council asserts that abrasive blasting should be limited to once or twice a year,[106] whereas appellant plans for such blasting up to three times a year.[107]  Abrasive blasting is an irregular activity of short duration, and I prefer the appellant’s planned measure as practical and reasonable.

Water Quality

  1. [147]
    The appellant operates the facility immediately adjacent to Elimbah Creek near the Pumicestone Passage. More widely, it is surrounded by a sensitive environment part of the Ramsar Convention Wetland, which includes a high ecological significance wetland, a wildlife habitat, a marina park and a declared fish habitat. It is part of the coastal management district, proximate to protected areas and is in a conservation zone.
  1. [148]
    In the absence of an appropriate site and storm water management plan, the risks of the release of the contaminants from the slipway are obvious from uncontrolled and ill-managed runoff and/or stormwater release from the slipway particularly when that runoff or release is laden with contaminants. Relevant contaminants include solids, endemic and introduced plants and animals, and chemicals, including heavy metals, Tributyltin, paint and paint chips, anti-foulant, oil and fuel, and their by‑products such as polyaromatic hydrocarbons.  All of these are likely to cause environmental harm.[108]
  1. [149]
    The lay witness and expert testimony showed that contaminant laden wastewater has escaped from the slipway for decades including during the appellant’s tenure. I found that the appellant had not implemented sufficient practical measures to prevent or minimise the release of contaminants into the waters, bed or bank of Elimbah Creek. The operations seemed ad hoc and haphazard in the absence of any stormwater management plan. Indeed, through wind, uncontained post‑clean-up washing and unintentional stormwater flushing, unlawful contamination of the creek was almost inevitable.  Whilst, the contamination of Elimbah Creek has occurred chronically over many years, I found that it has continued since the appellant acquired the facility in 2002, and more likely in the last five years.[109] 
  1. [150]
    The appellant has never sought nor obtained council approval of a Stormwater Management Plan pursuant to condition (C1(i)). Similarly, there has never been any agreement to release contaminants to any sewer pursuant to condition (C1(i)). It must then follow that, in the absence of a requisite management plan or agreement, any contaminated runoff from the appellant’s operation breaches condition (C2).
  1. [151]
    I remain satisfied that the appellant’s operation of the slipway causes or permits contaminants to be directly and indirectly released into Elimbah Creek in breach of condition (C1) and condition (C2) of the EA and that actual harm is being caused.[110]
  1. [152]
    The relevant conditions of the EA are conditions (C1), (C2), (C4) and (C5), which provide:

Release of Contaminants to Waters

(C1) Contaminants must not be directly or indirectly released from the licensed place to any waters except:

 (i) as permitted under a Stormwater Management Plan approved by this administering authority; or

 (ii) to a sewer as permitted or otherwise agreed from time to time by Caboolture Shire Council’s Caboolture Water Unit.

Stormwater Management –

Contamination of Rainfall and Stormwater Runoff

(C2) Except as otherwise provided by the conditions of the Water Schedule for this environmental authority, the environmentally relevant activity must be carried out by such practical means necessary to prevent and/or minimise the release or likelihood of release of contaminated runoff from the licensed place to any stormwater drain or waters or the bed or banks of any such waters.  ‘Contaminated runoff’ for the purposes of this condition means any waters, (and included stormwater and/or stormwater runoff) that contains contaminants that may cause environmental harm.

Clean-up of spillages

(C4) Any spillage of wastes, contaminants or other materials must be cleaned up as quickly as practicable. Such spillages must not be cleaned up by hosing, sweeping or otherwise releasing such waters, contaminants or material to any stormwater drainage system, roadside gutter or waters.

Bunding

(C5) All chemical tanks must be bunded so that the capacity of the bund is sufficient to contain at least 100% of the largest storage tank plus 10% of the second largest storage tank within the bund.

  1. [153]
    The appellant’s plan identifies the relevant water quality performance and mitigation measures in ss 4.5 and 4.6 as follows:[111]

“4.5 Performance measures – Stormwater

27 Slipway operations with stormwater impact potential include the following:

  1. (a)
    wastewater and residuals/particulates associated Slipway operations including the clean-up of abrasive blasting, painting, paint stripping and hull preparation, and anti-fouling operations;

(b) cloudburst and tidal inundation of operational Slipway areas.

28 The relevant water quality criteria applicable to consideration of site operations are:

(a) Environmental Protection (Water) Policy 2009; and

(b) Any other relevant Water Quality policies recommended by the Department of Environment and Heritage Protection in lieu of Queensland specific criteria/guidelines.

4.6 Mitigation measures – Stormwater

29 Relevant stormwater considerations and control measures incorporated in this SBEMP are summarised as follows:

(a) a new automated first flush collection drain and system;

(b) new bund wall immediately downstream to the first flush collection drain to prevent tidal inundation and boat wash into the drain;

(c) diversion of external catchment run-off through bunding and pit capture;

(d) introduction of 5,000L first flush and 5,000L overflow storage tanks for additional storage capacity;

(e) installation of a rain gauge;

(f) treatment of run-off to allow for separation and disposal of solid wastes as regulated waste;

(g) a water re-use and irrigation system to ensure that there is no discharge to the creek of untreated run-off;

(h) clean up procedure to include full wash down of Slipway at completion of daily works, including:

(i) vacuuming or sweeping of all hardstand areas; and

(ii) wash down to remove any dust and particulate matter;

(i) general restriction on operations to above the First Flush Collection Drain and the Existing Drain.”

  1. [154]
    The differences between measures proposed by both parties for the prevention of the release of contaminants to waters and management of contamination of rainfall and stormwater runoff are largely a matter of sophistication and degree.
  1. [155]
    The respective provisions relating to bunding of chemicals and spill prevention and clean up are contained within ss 8.1 and 8.2 of council’s plan and ss 9.1 and 9.2 of the appellant’s plan.
  1. [156]
    It seems to me that the appellant’s plan, by ss 9.1 and 9.2, implement reasonable and practicable measures to prevent or minimize environmental harm in relation to conditions (C4) and (C5) of the EA.[112]  The prevention of the release of contaminants to waters and management of contamination of rainfall and stormwater runoff, are contained in s 18 of both council’s plan and the appellant’s plan.
  1. [157]
    Sections 4.6, 7, 16 and 18 of the appellant’s plan seek to address conditions (C1) and (C2) to prevent the release of contaminants to waters and management of contamination of rainfall and stormwater runoff.
  1. [158]
    Section 7.2 retains the existing collection drain, and introduces a new first flush collection drain as follows:

“7.2 General requirements for cleanliness of the Slipway

68 The existing collection drain (Existing Collection Drain) is to be retained.

69 A new collection drain (First Flush Collection Drain) is to be constructed above the Existing Collection Drain and above the level of the highest astronomical tide on the Slipway, generally in accordance with the Boat Slipway Layout Plan attached as Annexure D to this SBEMP.

70 At the conclusion each day’s operations, the Slipway Manager is to ensure that all operational areas of the Slipway are maintained in a clean, uncontaminated and trafficable condition, and that any contaminants and residues are removed from all footwear, tools and appliances prior to removal from the Slipway.

71 At the conclusion each day’s operations all operational areas of the Slipway are to be swept and any particulate matter bagged and contained for disposal in accordance with the regulated waste protocols under this SBEMP. The operational areas of the Slipway are to be washed at the end of each day’s operations.

72 The required post-work cleaning (as detailed above) is to only occur within the Containment Facility, with all sides fully enclosed.

73 The First Flush Collection Drain and the Existing Collection Drain are to be empty prior to the commencement of each day’s operations.

74 The First Flush Collection Drain and the Existing Collection Drain are to be pumped out at the conclusion of each day’s operations.”

  1. [159]
    The prevention of the release of contaminants to waters and management of contamination of rainfall and stormwater runoff, are contained in s 18 of the appellant’s plans.
  1. [160]
    Section 18 provides as follows:

“18 Stormwater Management

163 The implementation of the operations procedures above will contribute significantly to reducing potential for release of contaminants from Slipway operations to the waters of Elimbah Creek.

164 In addition, the Slipway is required to incorporate appropriate rainwater and stormwater control measures to minimise the risk of residual pollutants releasing to Elimbah Creek.

18.1 First Flush Collection System

165 The First Flush Collection Drain with an automated first flush pump diversion system will operate concurrently with the Existing Collection Drain and pump system on the Slipway. The Existing Collection Drain shall, therefore, act as fail-safe and redundancy drainage

166 The First Flush Collection Drain is to have a minimum capacity of 1200 litres, having sufficient capacity to divert the first flush of water, which may contain any residual contaminants, from a rain event from entering Elimbah Creek.

167 The First Flush Collection Drain will incorporate the automated First Flush Rain Diversion system (FF600) in accordance with the specifications as attached as Annexure E to this SBEMP.

168 The process and operation of the FF600 is described as follows:

169 ‘FF60 is suitable for use where it cannot be guaranteed that an area will be left free of contaminants at the end of a washdown operation. Runoff is presented to the FF600 chamber via the grated inlet and silt basket. During a wash operation all runoff is diverted to a holding tank for treatment or proper disposal.

170 During a rain event if no washdown is taking place, the level in the chamber will rise as the diversion valve is closed. At a point just below the stormwater outlet a float will activate, opening the diversion valve and diverting the pit contents to the Treatment tank. This procedure will continue until the required 'First Flush' volume has been diverted. After the First Flush has been taken discharge of the runoff will be through the stormwater outlet pipe.

171 This arrangement eliminates the larger volumes of runoff that are normally collected with a conventional First Flush capture system.’

172 Save for works on large boats that cannot be placed entirely above the First Flush Collection Drain (Large Boats), to a maximum of 15 such Large Boats per year, all works are to be completed on boats sitting above the First Flush Collection Drain and, therefore, the drain will collect all run-off from the Slipway operational area.

173 In relation to works on Large Boats, such works are to be performed with the Containment Facility fully enclosed, save that the Elimbah Creek side will only be closed as far as possible. When such work is performed, the entire Slipway must be completely covered by tarpaulins (ie from the side of the Containment Facility to the other side of the Containment Facility) from the First Flush Collection Drain down to a point at least 2 metres below the outermost projection of the Large Boat. Any paint spray and particulate matter is to be captured by the tarpaulins, with those tarpaulins rolled and taken above the First Flush Collection Drain for cleaning.

174 Work on parts of a Large Boat below the First Flush Collection Drain must cease upon the tide (ie the level of Elimbah Creek) reaching a point that is 3 metres below the outermost projection of the Large Boat.

175 At the completion of works on a Large Boat (including mandatory cessation of works due to the incoming tide), in addition to the general requirements regarding the cleanliness of the operational areas of the Slipway, the Slipway Manager is to ensure that the area between the First Flush Collection Drain is examined for any particulate matter, dust or other waste (which waste shall be immediately removed and the drain cleaned, if any particulate matter, dust or other waste is observed).

176 The water from the FF600 is to be pumped to a 5,000 litre storage tank (First Flush Tank), which is to be located on site in accordance with the Boat Slipway Layout Plan attached as Annexure D to this SBEMP.

177 The Slipway Manager is to regularly monitor water levels to ensure that sufficient capacity is maintained to take the first flush of a rainwater event after work on the Slipway.

178 A second 5,000 litre storage tank (Storage Tank) is to be located on site in accordance with the Boat Slipway Layout Plan attached as Annexure D to this SBEMP, to act as overflow containment for the First Flush Tank.

179 There is to be an automatic pump to transfer water from the First Flush Tank to the Storage Tank.

180 There is to be no release of wastewater from the First Flush Tank, other than to the Storage Tank.

181 The First Flush Collection Drain and Existing Collection Drain are to be pumped out to the First Flush Tank after each wash down required after activities on each operational day, to avoid potential release from overflow, and any residual solids within the collection drains are to be removed by hand instrument or vacuum, to be bagged for proper disposal as regulated waste.

18.2 Bunding

182 In addition to existing bunding on the Slipway, there shall be created and maintained the following additional bunding in accordance with the Boat Slipway Layout Plan attached as Annexure D:

(a) a 200mm high barrier (whether by bund or by a combination of bund and rise in levels) along the entire road frontage of the Slipway (but not the boat ramp) to avoid overland flow from the roadway down the Slipway;

(b) a 100mm bund along the eastern boundary of the Slipway, dividing the Slipway and the boat ramp, which will sit outside the Containment Facility, to create a self-contained area potentially exposed to contaminants from Slipway operations; and

(c) 100mm bund immediately below the First Flush Collection Drain.”

  1. [161]
    Mr Bristow deposed that the appellant’s plan is deficient because:
  1. It does not include any supporting drawings, technical specification sheets, diagrams, log sheets and forms as provided in the earlier version.[113]
  1. It reduces the size of the treatment tanks from 2 x 10,000l to 2 x 5,000l which reduces the treatment and storage capacity and capability of the system.[114]
  1. The lack of engineering detail detracts from a proper understanding of what the systems will practically consist of and how they’ll be arranged and performed.[115]
  1. The site monitoring and contingency plans are lacking to non‑existent, and qualitative at best and would not provide adequate information and controls to manage the environmental (water quality) risks practically.[116]
  1. It does not acknowledge the Australian Standard for Storage and Handling Chemicals; prohibit the disposal of stored slipway wash water to land and continues to direct its disposal to Lot 20 contrary to the slipway’s EA; provide controlled impacts of tidal inundation of the work site; prohibit work on boats on the water; cause work to cease if anticipated storms would interrupt work nor provide contingency measures during storms; limit the size of vessels slipped; provide emergency clean-up procedures; provide for spray painting in an approved containment facility; and require large boats to be fully contained against Elimbah Creek.[117]
  1. Further, it does not “provide complete cohesive and measurable management in monitoring provisions to reasonably and practically control, monitor and manage the operation.  The location of the slipway in a sensitive environment and the nature of its operation, in which the toxic chemicals are removed and reapplied to boats in an open air work area beside and connected to Elimbah Creek mandate that the activity be properly and appropriately managed, monitored and controlled”.[118]
  1. [162]
    Much of Mr Bristow’s criticism exposes how the appellant’s plan is not comprehensive and lacks sophistication and monitoring. I have already commented on monitoring, and some of the criticism relate to detailed design that, in my view, is beyond the scope of this proceeding. The test ought focus on whether the appellant’s plan (by comparison with the council’s contentions) if implemented would province reasonable and practical measures to minimise or prevent environmental harm in respect of conditions.
  1. [163]
    It seems to me that the critical matters of water quality exposed by the competing plans are:
  1. The relative size of vessel for the size of the slipway;
  1. Whether the capacity of the Frist Flush Collection Drain ought be 2400 litres as opposed to the appellant’s 1200 litre capacity;
  1. Whether two 10,000 litre tanks is preferred to two 5000 litre storage or settling tanks;
  1. Whether an oil water separator system ought be employed.

Relative Size of vessels to managed work area

  1. [164]
    Mr Ross deposes to seeing large boats on the slip overhanging the catchment drain and/or overhanging the eastern edge of the formed area of the slipway.[119]  There was no protected or enclosed workspace for longer vessels that, because of their size, have to overhang the interceptor drain.
  1. [165]
    Paragraphs 172 to 175 of the appellant’s plan seek to manage slipping and work on large boats that overhang the catchment drain to the Creek side.[120]  The plan limits work for up to 15 large boats per year that sit over or below the First Flush Collection Drain.[121]  The conditions require that the works are to be undertaken within Mrs Cuthbert’s proposed containment facility, fully enclosed except the Elimbah Creek side will ‘only be closed as far as possible’, with the Slipway entirely covered in tarpaulins down to 2m from the outermost projection of the subject boat beyond the First Flush Collection Drain.[122]  Further, works on a large boat must cease upon the tide reaching a point that is 3m below the outermost projection of the boat, that is 1m below the tarpaulin.
  1. [166]
    This can be compared to s 17 of the Council’s plan.
  1. [167]
    Council seeks to impose a limitation that all works on boats of a length that necessitates them overhanging the First Flush Collection Drain (i.e. boats over 40 feet or 12.2m) are to be undertaken entirely above the First Flush Collection Drain and within the containment facility, unless an approved full-sealed containment system is in place to both prevent wastewater runoff from entering Elimbah Creek and exclude tidal waters from penetrating above the containment system.[123]  Further, council seeks to limit such works to spot repairs and then only above the inspection drain.
  1. [168]
    The starting point ought be that no vessel ought extend beyond the slipway boundaries adjacent to Elimbah Creek and road frontage, and work should never be permitted over the water. All work on the vessel ought be so contained to prevent both wastewater runoff entering Elimbah Creek and tidal waters from breaching the first-flush collector drain. I have already remarked that an approved spray painting booth that fully encloses and isolates the area is a pre-requisite to all spray painting. I have also remarked about my uncertainty about the efficacy of a noise attenuating containment facility. However, suffice it to say, that a containment facility ought contain the work area, and I think it is unacceptable that the creek side ‘only be closed as far as possible’.
  1. [169]
    It seems to me that the appellant’s plan at paragraphs 172 – 175 ought be be modified to expressly exclude all work on boats longer than 40 feet or 12.2 metres unless the repair work is limited to spot repairs and then only above the interception drain (not inundated by tide).

First Flush Collection Drain Capacity

  1. [170]
    The council’s plan requires a combined capacity of 2,400 litres for the first-flush collection drain, sump and pump pit, whereas the appellant plans for a capacity of 1,200 litres.
  1. [171]
    As I apprehend it, the First Flush Collection Drain will comprise the lineal drain, sump and pump pit with a combined minimum capacity of 1200 litres located generally in accordance with the Boat Slipway Layout Plan being Annexure D to the appellant’s plan. Its utility ought be considered in relation to the Highest Astronomical Tide (HAT), being the highest high tide level predicted to occur under average meteorological conditions and any combination of astronomical conditions.
  1. [172]
    It seems appropriate that the First-Flush collection drain be placed above the HAT to limit the risk of tidal inundation, and the need to pump out additional sea water. On this basis, I accept the appellant’s contention that a 1,200 litre drainage capacity is apt for the proposed bunded dimensions of the slipway, and sufficient to divert the first flush of stormwater (up to a depth of 20mm) from any rain event.[124] 

Oil water separator & media filter

  1. [173]
    It is uncontroversial that the water collected through the first flush system is reused on-site for wash down and pressure cleaning to reduce the volume of water to be removed off-site.
  1. [174]
    However, the council’s plan imposes an oil-water separator component to the First-Flush System, so that the water is pumped from the sump to the storage tank via an oil-water separator, which will pre-treat the pumped water.[125]  From there council proposes that the pre-treated water, once settled, is then pumped through a sand filter and an activated carbo filter to a second storage tank.[126]  The water from the second storage can be re-used in operations.
  1. [175]
    It seems to me that these measures are unreasonable and impractical in the proposed self contained wastewater system destined for regulated waste disposal.
  1. [176]
    Further, I note that Mr Bristow dealt with this circumstance if the appellant’s painting operations were limited to hand brushing and rolling without a Carcoon facility as follows:[127]

“93 If spray painting/antifouling was to be genuinely discontinued as claimed by the Cuthberts, then some of the investment in these controls might be able to be reduced.  The Carcoon containment facility might fall away as essential, and the acoustic wall fitted instead with a sailcloth roof to protect against generating contaminated stormwater in substitution.”

  1. [177]
    I do not accept that the evidence warrants modification of the appellant’s containment facility to incorporate a sailcloth roof as contemplated by Mr Bristow to protect against generating contaminated stormwater. Instead, I accept the measures proposed by the appellant are reasonable and practical in the absence of a sail roof.

Capacity of the storage/settling tank.

  1. [178]
    The appellant proposes two 5,000L tank, where as the council proposes two 10,000 litre treatment tanks.
  1. [179]
    It seems prudent to ensure a generous storage capacity and capability of the self-contained First-Flush System. I prefer the council’s two 10,000 tank capacity, that is a 10,000 litre settling tank and 10,000 litre storage tank. The appellant’s plan ought be modified accordingly.
  1. [180]
    With these modifications, together with the appellant’s proposed monitoring, recording and training, I am satisfied that the First-Flush System and bunding proposed by the appellant is reasonable and practicable to minimise or prevent environmental harm in respect of conditions (C1) and (C2) of the EA.

Land

  1. [181]
    In my judgment, I concluded that the irrigation of the tank water from the drain and pit constitutes a release, or likely release, of contaminated water onto the land in breach of condition (D1) of the EA. Condition (D1) of the EA, which provides:

“Release of contaminants to land

D1 There must be no release nor likely release of any contaminants to land.”

  1. [182]
    Despite this, the appellant submits that irrigation of the water from the holding tank, even in its current form, does not breach this condition. The appellant’s management plan permits the irrigation of Lot 20 using the tank water in paragraphs 29(g), 57, and 188 as follows:[128]

“29  Relevant stormwater considerations and control measures incorporated in this SBEMP are summarised as follows: …

(g) a water re-use and irrigation system to ensure that there is no discharge to the creek of untreated run-off; …

…

57 No wash downs are to occur unless the holding tanks have at least one-third of their combined storage capacity available before the wash-down commences. To achieve this buffer capacity, irrigation discharge should be carried out, only from the Storage Tank, after settling.

…

188 Only water from the storage tanks may be disposed of to land, and then only to land on Lot 20 and not within 24 hours of any transfer of water from the First Flush Tank.”

  1. [183]
    The appellant argues that irrigation of the water from the holding tank does not breach this condition because:
  1. (a)
    the reference to release of contaminants is, properly construed, a reference to unlawful release;
  1. (b)
    the results of testing of the water from the activities show it meets ANZECC guidelines for short term irrigation to land (20 years, although the test results show that it would satisfy the irrigation standard for almost 35 years); and
  1. (c)
    the reference to release is, properly construed, a reference to release to land outside of the Licensed Premises being both Lot 20 on RP72941 and Lot 1 on AP2986 PO210992.
  1. (d)
    Appropriate irrigation management measures can be put in place to ensure any compounding or aggregate accumulation of metals is properly managed.
  1. [184]
    The appellant proposed reading an additional qualifying term of “unlawful” in relation to the term “release”. The result sought by the appellant is, by that qualification, the ANZECC guidelines would apply.
  1. [185]
    In appropriate cases, the court is entitled to read a provision by implying additional or clarifying words in order to give effect to the legislative purpose.[129]  In Wentworth Securities Ltd v Jones [1980] AC 74,[130] Lord Diplock formulated the following three stage test:

“First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed. Such an attempt crosses the boundary between construction and legislation. It becomes a usurpation of a function which under the constitution of this country is vested in the legislature to the exclusion of the courts.”

  1. [186]
    The test was applied by McHugh JA (then in the New South Wales Court of Appeal) in Kingston v Keprose Pty Ltd,[131] where he said:

“Once the object or purpose of the legislation is delineated, the duty of the Court is to give effect to it in so far as, by addition or omission or clarification, the relevant provision is capable of achieving that purpose or object.”

  1. [187]
    In my respectful view, the premise of the argument is fatally flawed. The condition is in plain and clear terms, which provide for “no release nor likely release” of contaminants to land.  It is a strict approach warranted by the nature and purpose of the environmental authority.  It does not give rise to any uncertainty, absurdity, injustice or anomaly.  The reality is that the condition is purposely clear; consistent with condition (F1) regarding the release of ‘waste’, and can be contrasted with the exceptional permission in condition (C1) for the release of contaminants to water.  I am not persuaded that there is any need to introduce any qualification in condition (D1) as contended by the appellants.  Therefore, I affirm my conclusion in the judgment.
  1. [188]
    The appellant also challenged the finding of the contamination of the tanked water.
  1. [189]
    Since the hearing, Paula Duke of Duke Environmental undertook testing of the water collected by qualified personnel from Australian Laboratory Services in accordance with AS/NZS 5667 – Water Quality Sampling and transported samples directly to a NATA accredited laboratory for testing.[132]  The results of that laboratory analysis indicated that levels of metals detected in the samples were below the ANZECC trigger values for short term (20 years) irrigation.
  1. [190]
    Clearly enough, the tests showed contamination albeit under the ANZECC levels.
  1. [191]
    I also accept, Dr Thorogood’s evidence exposing the shortcomings of the recent testing. He deposed that:[133]

“8 the dissolved concentration of copper and zinc which is what has been reported is several orders of magnitude above the trigger values provides by ANZECC for slightly to moderately disturbed marine ecosystems.  The dissolved concentration of lead is also above the ANZECC guideline.

9 That is, the stored wash down water is significantly contaminated … .

….

12 The reported results address only the dissolved concentration.  The concentration of contaminants in the sediment at the base of the tank is likely to be significantly greater.”

  1. [192]
    Similarly, Mr Bristow deposed as follows:[134]

“41 The toxicity of the copper to soil fauna has been ignored.  At the concentrations reported, the water would pose a real and direct threat to aquatic ecosystems, algae, and soil fauna (worms/nematodes etc.) and an indirect threat to insects.  The presence of zinc, lead and other metals and hydrocarbons simply adds to the toxic contaminant load that the water presents to any living thing.

42 Whilst I acknowledge copper and zinc are essential trace elements for health plants, the concentrations reported, applied without strict monitoring and management, would not be beneficial to plant growth and, rather, would by phytotoxic over time.

43 It is wrong to conclude that the holding tank waters are suitable for irrigation and it is my view that without specialist soil management or very well draining deep sand soils, spray or soaker hose irrigation of plants with this water would result in the death of the plants from salinity and contaminant contamination (including heavy metal contaminants).

44 I remain of the opinion that the land disposal of this relatively untreated wastewater poses potential and real environmental harm and should not occur.”

  1. [193]
    In my view, the appellant’s past and continued irrigation of the holding tank water onto Lot 20 is in breach of condition (D1) of the EA.
  1. [194]
    Therefore, paragraphs 29(g), 57, and 188 in the appellant’s proposed plan conflict with the EA in so far as they permit irrigation of the holding tank water onto the land, and ought be deleted.

Waste Management

  1. [195]
    This waste generated by the appellant’s operations is “regulated waste” pursuant to Schedule 7 Part 1 of the Environmental Protection Regulation 2008 (Qld) as it includes waste from the use of paint, copper and hydrocarbons.[135]
  1. [196]
    The relevant EA conditions provide:

“(F1) Waste must not be released to the environment, stored, transferred or disposed of contrary to any condition of this environmental authority.

…

(F3) All waste shall be removed to an approved waste disposal facility or approved waste recycling facility by a licensed waste transporter.

(F4) Where waste is taken off site, the holder of this environmental authority must monitor and record the:

 (i) date, quantity and type of wastes removed;

 (ii)  waste receiving operator that removed the wastes off‑site; and

 (iii) destination of the waste.”

  1. [197]
    I found, that the appellant’s waste management arrangements breach condition (F3) of the EA. Further, in breach of condition (F4), the appellant had insufficient records of waste being taken off site.[136]
  1. [198]
    Apart from the release of water to land, which I have dealt with above, there is little difference between the parties’ respective plans.[137]  On this basis, reasonable and practical measured are reflected in the appellant’s plan.

Injunction

  1. [199]
    The council has applied for an injunction to restrain the appellant from conducting her boat maintenance and repair activities until final determination of the matter. That application was heard with this proceeding.
  1. [200]
    The Environmental Protection Act 1994 (Qld) provides relevantly:

 “430 Contravention of condition of environmental authority

  1. (1)
    This section applies to a person who is the holder of, or is acting under, an environmental authority.
  2. (2)
    The person must not wilfully contravene a condition of the authority. 

Maximum penalty – 6250 penalty units or 5 years imprisonment.

  1. (3)
    The person must not contravene a condition of the authority.  Maximum penalty – 4500 penalty units.
  2. (4)
    In a proceeding for an offence against subsection (2), if the court is not satisfied the defendant is guilty of the offence charged but is satisfied the defendant is guilty of an offence against subsection (3), the court may find the defendant guilty of the offence against subsection (3).

  431 Environmental authority holder responsible for ensuring conditions complied with

 (1) The holder of an environmental authority must ensure everyone acting under the authority complies with the conditions of the authority.

 (2) If another person acting under the authority commits an offence against section 430, the holder also commits an offence, namely, the offence of failing to ensure the other person complies with the conditions.

  Maximum penalty – the penalty under section 430(2) or (3) for the contravention of the conditions.

 (3) Evidence that the other person has been convicted of an offence against section 430 while acting under the authority is evidence that the holder committed the offence of failing to ensure the other person complies with the conditions.

 (4) However, it is a defence for the holder to prove –

  1. (a)
    the holder issued appropriate instructions and used all reasonable precautions to ensure compliance with the conditions; and
  1. (b)
    the offence was committed without the holder’s knowledge; and
  1. (c)
    the holder could not by the exercise of reasonable diligence have stopped the Commission of the offence.”
  1. [201]
    Section 505 of the Environmental Protection Act empowers the court to make an order directing an offender to stop an activity that is or will be a contravention of the Act, and other orders, as follows:

 “505 Restraint of contraventions of Act etc

  1. (1)
    A proceeding may be brought in the Court for an order to remedy or restrain an offence against this Act, or a threatened or anticipated offence against this Act, by –
    1. the Minister; or
    2. the administering authority; or
      1. (c)
        someone whose interests are affected by the subject matter of the proceeding;

 …

  1. (5)
    If the Court is satisfied –
    1. an offence against this Act has been committed (whether or not it has been prosecuted); or
    2. an offence against this Act will be committed unless restrained;

the Court may make the orders it considers appropriate to remedy or restrain the offence.

  1. (6)
    An order –
    1. may direct the defendant –
      1. (i)
        to stop an activity that is or will be a contravention of this Act; or
      2. (ii)
        to do anything required to comply with, or to cease a contravention of, this Act; and
    2. may be in the terms the Court considers appropriate to secure compliance with this Act; and
    3. must specify the time by which the order is to be complied with; and
    4. may include an order for the defendant to pay the costs reasonably incurred by the administering authority in monitoring the defendant’s actions in relation to the offence.
  2. (7)
    The Court’s power to make an order to stop an activity may be exercised whether or not –
    1. it appears to the Court the person against whom the order is made intends to engage, or to continue to engage, in the activity; or
    2. the person has previously engaged in an activity of that kind; or
    3. there is danger of substantial damage to the environment if the person engages, or continues to engage, in the activity.”
  1. [202]
    Kirby P helpfully set out a number of guidelines for the exercise of discretion in Warringah Shire Council v Sedevcic,[138] which relevant for this case the council submits are:
  1. (i)
    there is an indicated legislative purpose of upholding, in the normal case, the integrated and coordinated nature of planning (and environmental law).  Unless this is done, equal justice may not be secured.  Private advantage may be won by a particular individual which others cannot enjoy.  Damage may be done to the environment, which it is the purpose of the orderly enforcement of environmental law to avoid;
  2. (ii)
    the instant application is made by the local government.  The local government is seen as the proper guardians of public rights.  The Council's interest is deemed to be protective and beneficial, not private or pecuniary;
  3. (iii)
    the relief sought here is not against a "static development" (e.g. the erection of a building) the removal of which would occur at great cost or inconvenience, but against a continuing breach by conduct; and
  4. (iv)
    the breach is not merely a technical breach, but is having significant adverse amenity impacts on the environment and surrounding residents in the locality and impacts on the environment as noted in the evidence before this Court.
  1. [203]
    The council argues that the appellant and her husband have irresponsible and cavalier attitudes to the EA conditions, including:[139]
  1. (a)
    Irrigation and contamination onto Lot 20 in flagrant breach of condition (D1).[140]
  2. (b)
    Letting tarpaulins which are used to trap contaminants lie on the slipway and be inundated by successive tides for at least a week.
  3. (c)
    Using a chainsaw to cut a large timber beam contaminated by layers of anti‑foul with no attempt to capture or control the contaminated dust generated.[141]
  4. (d)
    Undertaking work on boats that are not on the Slipway and are moored in Elimbah Creek.[142]
  5. (e)
    Bringing boats onto the slipway that overhang the catchment drain (to the Creek side) and undertaking work on boats on the Creek side of the catchment drain.[143]
  6. (f)
    Utilising a tarpaulin arrangement that does not attempt to completely enclose the boat on all sides (or at the top).[144]
  7. (g)
    Undertaking works without drop sheets in place on the slipway.[145]
  8. (h)
    Failing to make appropriate adjustments to the operational practices of the business to eliminate breaches of conditions of the EA in respect to the Judgment of the Court of 18 December 2015.

Discussion

  1. [204]
    The appellant has carried on the business of a boat maintenance and repair facility since 2002 at 48 Bishop Parade at Toorbul, comprising Lot 20 on RP 7294 and Lot 1 on AP 2986. The facility is adjacent to Elimbah Creek near the Pumicestone Passage.
  1. [205]
    Overlayed aerial photographs show Lot 1 as an extension of Lot 20 across Bishop Parade and into Elimbah Creek. Lot 20 is a freehold lot improved by a house and a shed. The shed fronts Bishop Parade and is adjacent to Lot 1 over which the applicant holds a permit to occupy. Lot 1 is unallocated State land improved by a boat ramp, slipway and jetty.
  1. [206]
    Several owners operated the facility without formal environmental controls for 34 years between 1962 and 1996. After the introduction of the Act, the facility was identified as an environmentally relevant activity, and in 1996 an environmental authority issued under the Act.
  1. [207]
    Over time, a new larger shed on Lot 20 replaced an old one, rails between the slipway on Lot 1 and into the shed on Lot 20 were removed, and the slipway was improved with grated drainage, new railing, concreting, fencing and a reoriented winch. Generally speaking, the type of boat repair and maintenance work has been similar over the years with evolving work and environmental practices.
  1. [208]
    An environmental authority continues to govern the facility conducted on both Lot 1 and Lot 20.[146]  The environmental authority applies subject to conditions under the Act.  By operation of the Act, and successive planning legislation, the environmental authority continues in force as a development approval under SPA.
  1. [209]
    Some local residents have made persistent and numerous complaints about the facility; particularly about the appellant’s use of a slipway to repair, sand, spray, fibreglass, water-blast and anti-foul boats. 
  1. [210]
    In the wake of previous proceedings, council officers inspected the facility on 13 May 2014.  The council decided, through its delegate Craig Manley, to issue the EPO on 31 March 2015 in relation to acoustic amenity, air quality, water quality, and stormwater and aquatic ecology.  The protection order prescribed 57 requirements “to secure compliance by [the appellant] with the conditions of the Environmental Authority and with the general environmental duty". 
  1. [211]
    The appellant sought an internal review on the imposition of the protection order, but it was affirmed. Her subsequent appeal to this court was determined by judgment delivered on 18 December 2015.  I concluded that the appellant breached her general environmental duty to the same extent that she has breached the EA, in particular:
  1. (a)
    Schedule A, conditions (A2), (A5) and (A10);
  1. (b)
    Schedule B, conditions (B1), (B2), (B3) and (B6);
  1. (c)
    Schedule C, conditions (C1), (C2), (C4) and (C5);
  1. (d)
    Schedule D, condition (D1);
  1. (e)
    Schedule E, condition (E1); and
  1. (f)
    Schedule F, conditions (F1), (F3), and (F4).
  1. [212]
    I formed the view that the consequential environmental harm and environmental nuisance resulting from these breaches would continue to occur unless the appellant’s management practices and the ERA infrastructure is significantly improved.
  1. [213]
    However, I formed the view that the EPO issued by the council was unnecessarily restrictive, prescriptive and onerous, with the potential to derogate from the original grant of the EA. I found the temporal requirements in the EPO both unreasonable and impractical.  Further, the imposition of the EPO would have imposed intolerable immediate material financial implications associated with the upgrade of the slipway, acoustic treatments and dust and odour mitigation requirements.  In the absence of detailed costs or other economic evidence, I was left with uncertainty about whether or not the imposition of the EPO will jeopardise the appellant’s business.
  1. [214]
    I adopted a course of making an EPO compelling the preparation and implementation of a site based management plan, which would necessarily but properly confine the operation of the facility within the scope of the EA.
  1. [215]
    The appellant’s activities and obligations under the EA have been clouded in significant uncertainty for almost a decade amidst continuing complaints and litigation. Of most significance was the nature and extent of an appropriate painting booth and containment facility, about council has not satisfied their onus. Otherwise, the disputation has now merged in this decision and the preferred appellant’s site based environmental and stormwater management plan, subject to the modifications in accordance with this judgment.
  1. [216]
    It seems to me that for the most part the appellant ought be permitted a reasonable time to implement her Site Based Environmental Management Plan (as modified), except where continuing activity will breach the EA as I have found in relation to:
  1. (a)
    Conducting spray painting activity including anti-foul in the absence of an approved spray booth pursuant to condition (B5).
  1. (b)
    Undertaking any work on boats longer than 40 feet or 12.2 metres in certain circumstances. 
  1. (c)
    Irrigating any land with holding tank water.
  1. [217]
    I propose to make an order directing the appellant to stop these activities that will be a contravention of the Act, and my orders.

Conclusion

  1. [218]
    For these reasons, I propose to make the following orders:
  1. In respect of appeal number 2283 of 2015 I order that the appellant’s revised Site Based Environmental Management Plan (exhibit 4) is approved subject to the following changes:
  1. (a)
    Section 3, ought better identify the noise sensitive receptors.
  1. (b)
    Paragraphs 134, 135 and 150 must be modified to ensure that no spray painting activity including anti-foul (delivered by airless, compressed or other spray air guns) is carried out unless and until the appellant has an approved spray booth suitable to the task pursuant to condition (B5).
  1. (c)
    Paragraphs 172 – 175 ought be modified to expressly exclude all work on boats longer than 40 feet or 12.2 metres unless the repair work is limited to spot repairs and then only above the interception drain (not inundated by tide). 
  1. (d)
    Paragraphs 29(d), 176, and 178 must be modified to two 10,000 litre tank capacity, that is a 10,000 litre settling tank and 10,000 litre storage tank.
  1. (e)
    Paragraphs 29(g), 57, and 188 conflict with the EA in so far as they permit irrigation of the holding tank water onto the land, and ought be deleted. 
  1. In respect of application number 5102 of 2016 I order on and from 4pm on 14 September 2018 that the appellant be restrained by injunction from:
  1. (a)
    Conducting spray painting activity including anti-foul (delivered by airless, compressed or other spray air guns) unless and until the appellant has an approved spray booth suitable to the task pursuant to condition (B5).
  1. (b)
    Undertaking any work on boats longer than 40 feet or 12.2 metres unless the repair work is limited to spot repairs and then only above the interception drain (not inundated by tide). 
  1. (c)
    Irrigating any land with holding tank water.
  1. I will hear further submissions on the appropriate form of orders and the future conduct of the proceedings on a date to be fixed.

DP Morzone QC DCJ

Footnotes

[1]Cuthbert v Moreton Bay Regional Council [2015] QPEC 63.

[2]Loader v Moreton Bay Regional Council [2013] QCA 269.

[3]Exhibit 2.

[4]Exhibit 4.

[5]Environmental Protection Act 1994 (Qld) ss 430, 431.

[6]Environmental Protection Act 1994 (Qld) s 505.

[7]Cf. Darwen & Anor v Pacific Reef Fisheries (Australia) Pty Ltd & Ors [2009] QPELR 262 at 265.

[8]Briginshaw v Briginshaw (1938) 60 CLR 336 at 363.

[9]    Exhibit 2, council’s plan, s 6.5.

[10] Exhibit 2, council’s plan, s 10.2.

[11] Exhibit 2, council’s plan, ss 21 & 22.

[12]Affidavit of Bristow 6 July 2015, Doc. 13, Exhibit DJB-01 Doc G (p 56).

[13]Affidavit of Manley 7 July 2015, Doc. 16, Docs F & G in Exhibit CPM-01.

[14]Judgment at [122].

[15]Appellant’s submissions, at [20].

[16]Judgment at [123]-[126].

[17]Environmental Protection Act 1994 (Qld), s 319(2).

[18]Exhibit 4, appellants plan, s 5.

[19] Affidavit of DR Cuthbert 28 February 2017, Doc. 94, Exhibit DRC-1, sales less cost of goods sold (excluding ordinary business expenses).

[20]Exhibit 4, appellant’s plan, at [20].

[21]Exhibit 4, appellant’s plan, s 1.4, at [9].

[22]Exhibit 4, appellant’s plan, s 7.3, at [75].

[23]Exhibit 4, appellant’s plan, s 9.1, at [101] – [103].

[24]Exhibit 4, appellant’s plan, s 9.2, at [110].

[25]Exhibit 4, appellant’s plan, s 14.1, at [132].

[26]Exhibit 4, 4ppellant’s plan, s 15.1, at [135], [136], s 16.2, at [154], [155].

[27]Exhibit 4, appellant’s plan, s 16.1, at [145], [146], s 16.2 at [154], [155].

[28]Exhibit 4, appellant’s plan, s 17.0, at [161] – [162].

[29]Exhibit 4, appellant’s plan, s 20.0, at [195] – [196].

[30]Exhibit 4, appellant’s plan, s 21.0, at [200].

[31]Exhibit 4, appellant’s plan, s 22.1, at [202] – [205].

[32]Exhibit 4, appellant’s plan, s 23.0, at [206] – [207].

[33]Exhibit 4, appellant’s plan, s 24.0, at [208] – [209].

[34]Exhibit 2, council’s plan, s 22.

[35]Environmental Protection Act 1994 (Qld) s 9.

[36]The evidence is referred to in the councils Submissions at [13]-[43].

[37]Judgment at [34], [36]-[42], [44]-[45], [46], [50]-[57], [60]-[62] & [66]-[69].

[38]Exhibit 4, appellant’s plan, at [22], [24].

[39]Exhibit 4, appellant’s plan, – Annexure “C”.

[40]Affidavit of DJ Bristow 23 December 2016, Doc. 87, at [27].

[41]Affidavit of G Galvin, Doc. 89, at [51] – [53].

[42]Affidavit of G Galvin, Doc. 89, at [54].

[43]T2-39/46 to T2-40/8.

[44]Appellant’s submissions, at [75].

[45]Appellant’s submissions, at [77].

[46]T2-61/3-6.

[47]Affidavit of G Galvin 23 December 2016, Doc. 89, at [25], contrast Exhibits 6, 7, 8, 9 & 10.

[48]Affidavit of JA Thorogood. Doc. 90, at [11].

[49]Judgment at [34], [36], [40]-[42].

[50]Affidavit of G Galvin 23 December 2016, Doc. 89, at [58].

[51]Affidavit of G Galvin 23 December 2016, Doc. 89, at [45].

[52]Affidavit of G Galvin 23 December 2016, Doc. 89, at [10(e)].

[53]Affidavit of AW Ross 23 December 2016, Doc. 86, pp. 48 to 50; and Affidavit of G Galvin 23 December 2016, Doc. 89, at [10].

[54]Affidavit of G Galvin 23 December 2016, Doc 89, at [10(e)].

[55]EA, (G14).

[56]EA, (G15).

[57]Affidavit of AW Ross 23 December 2016, Doc. 85, at [8]; Affidavit of AW Ross, Doc. 86, at [9].

[58]Affidavit of AW Ross 23 December 2016, Doc. 85, at [8.11].

[59]Ross, T3-35/45 – 36/3.

[60]Ross, T3-35/3-10.

[61]Affidavit of ME Hudson 28 August 2015, Doc. 50, T3-7/36-44.

[62]Exhibit 4, Appellant’s plan – Annexure “C”.

[63]Council’s plan, s 5.5, paras 52, 53 & 54.

[64]Council’s plan, s 5.2.

[65]Council’s Plan, ss 5.2 & 6.6.

[66]EA, conditions (E1), (G5), (G12) & (G13).

[67]Cf.  Goodfellow, T2-13/15-45.

[68]Exhibit 4, Appellant’s plan, p 79 Annexure “C”, and Appellant’s submissions, para 67.

[69]Affidavit of DJ Bristow, Doc. 87, at [27].

[70]Affidavit of MR Goodfellow 23 December 2016, Doc. 88, Figure 2, at [15].

[71]Affidavit of MR Goodfellow 6 March 2017, Doc. 98, p 2, Table 1, Response 1.

[72]Affidavit of MR Goodfellow 6 March 2017, Doc. 98, at [12]-[13].

[73]Appellant’s submissions, at [143].

[74]T2-8/14-46 - T2-9/ 1-9.

[75]T2-26/39 - T2-28/6; T 2-29/4-6.

[76]T2-26/45-46.

[77]T2-28/7-21; T2-28/34-36.

[78]T2-25/33-41; T2-29/8-10.

[79]Judgment, at [63]-[67].

[80]T2-15/36-47.

[81]T4-48/5-37.

[82]Affidavit of MR Goodfellow 6 July 2015, Doc. 14, at [20].  These were also based on Savery and Associates Pty Ltd Report ‘Noise impact assessment Toorbul Slipway 48A Bishop Parade Toorbul’ in evidence in P&E Appeal 1664 of 2010.

[83]Affidavit of MR Goodfellow 6 July 2015 Doc. 14, at [22].

[84]Affidavit of MR Goodfellow 23 December 2016, Doc. 88, Table 2, at [16].

[85]Affidavit of MR Goodfellow 23 December 2016, Doc. 88, Table 3, at [14.1]; [17]. 

[86]Affidavit of MR Goodfellow 6 March 2017, Doc. 98, p 8.

[87]Affidavit of MR Goodfellow 23 December 2016, Doc. 88, at [9].

[88]T2-14/5-36.

[89]T2-8/1-13.

[90]T2-35/27-40.

[91]Judgment, [15]-[20].

[92]Appellant’s submissions, at [172].

[93]Council’s reply submissions, at [7].

[94]Sustainable Planning Act 2009 (Qld) s 231(2).

[95]Council’s reply submissions, at [7].

[96]Exhibit 2, Council’s plan, s 6.5.

[97]Exhibit 2, Council’s plan, s 5.1.

[98]Exhibit 2, council’s plan, s 6.5.

[99]Under the Sustainable Planning Act 2009 (Qld) and the Building Act 1975 (Qld).

[100]Exhibit 2, council’s Plan, s 6.5.

[101]Exhibit 4, appellant’s plan, at [124(c)].

[102]Exhibit 2, council’s Plan, s 6.5.

[103]Exhibit 4, appellant’s plan, at [124].

[104]Exhibit 2, council’s plan, ss 6.5, 12.

[105]Exhibit 4, appellant’s plan, at [120].

[106]Exhibit 2, council’s plan, s 11.

[107]Exhibit 4, Appellant’s plan, at [128].

[108]Affidavit of DJ Bristow 6 July 2015, Doc 13, at [17].

[109]Affidavit of DJ Bristow 31 August 2015, Doc. 61, at [12.4].

[110]Judgment, at [70]-[98].

[111]Affidavit of DR Cuthbert 28 February 2017, Doc. 94, Exhibit DRC-4.

[112]Compare exhibit 2, council’s plan, ss 8.1, 8.2.

[113]Affidavit of DJ Bristow 6 March 2017, Doc 95, at [106].

[114]Affidavit of DJ Bristow 6 March 2017, Doc 95, at [108].

[115]Affidavit of DJ Bristow 6 March 2017, Doc. 95, at [109].

[116]Affidavit of DJ Bristow 6 March 2017, Doc. 95, at [110].

[117]Affidavit of DJ Bristow 6 March 2017, Doc. 95, at [111].

[118]Affidavit of DJ Bristow 6 March 2017, Doc. 95, at [113].

[119]Affidavit of AW Ross 23 December 2016, Doc. 85, at [39(vii)].

[120]Exhibit 4, appellant’s plan, at [171] – [172].

[121]Exhibit 4, appellant’s plan, at [173] – [176].

[122]Exhibit 4, appellant’s plan, at [174].

[123]Exhibit 2, council’s plan, ss 6.7, 17.

[124]12 metres length x 5 metres width x .02 metres depth = 1.2m3 or 1,200 litres.

[125]Exhibit 2, council’s plan, s 18.1(c).

[126]Exhibit 2, council’s plan, s 18.3.

[127]Affidavit of DJ Bristow 6 March 2017, Doc. 95, at [93].

[128]Affidavit of DR Cuthbert 28 February 2018, Doc. 94, Exhibit DRC-4.

[129]Newcastle City Council v GIO General Ltd (1997) 191 CLR 85, 113; James Hardie & Coy Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53, 82; R v Young (1999) 46 NSWLR 681, 687, 690, 740;  R v PLV (2001) 51 NSWLR 736, 743-744; Ravenscroft v Nominal Defendant [2008] 2 Qd R 32, 51.

[130]Wentworth Securities Ltd v Jones [1980] AC 74, 105-106.  Applied in Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404; Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292; Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275, 283.

[131]Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404, 424. 

[132]Affidavit of P Duke 28 February 2017, Doc. 93, Exhibit PD2.

[133]Affidavit of JA Thorogood 6 March 2017, Doc. 96, at [8] - [9], [12].

[134]Affidavit of DJ Bristow 6 March 2017, Doc. 95, at [41] – [44]

[135]Affidavit of CP Manley 28 August 2015, Doc. 49, at [11]; T5-77/38.

[136]Affidavit of HL Cuthbert 26 August 2015, Doc. 46, at [43(i)]; Exhibit 9 pp 44.9 & 45.1.

[137]Exhibit 4, appellant’s plan, ss 19.0, 20.0; Exhibit 2, council’s plan ss 19, 20.

[138]Warringah Shire Council v Sedevcic (1987) 63 LGERA 361, 365.

[139]Council’s submissions at [49].

[140]Affidavit of DR Cuthbert 28 February 2017, Doc. 92 at [20]; T4-18/36.

[141]Affidavit of AW Ross 23 December 2016, Doc. 85, at pp 41-43.

[142]Affidavit of DJ Bristow 21 July 2015, Doc. 20, at  [22] – [23].

[143]Exhibit 4, appellant’s plan at [172] – [173]; Affidavit of LJ Abbott 21 July 2015, Doc. 18, at [19(d)].

[144]Affidavit of G Galvin 6 March 2017, Doc. 97, pp 20‑28; T4-21/35-39; T4‑22/4-8.

[145]Examples: Affidavit of G Galvin 6 March 2017, Doc. 97, pp 20-28; Affidavit of AW Ross, 6 March 2017, Doc. 22, Exhibit AWR-04, Documents G – I,  in proceeding 5102/16; Affidavit of W Henry 28 February 2017, Doc. 12, Exhibit WH-1, in proceeding 5102/16.

[146]Loader v Moreton Bay Regional Council [2013] QCA 269.

Close

Editorial Notes

  • Published Case Name:

    Heather Lorraine Cuthbert v Moreton Bay Regional Council (No 2)

  • Shortened Case Name:

    Cuthbert v Moreton Bay Regional Council (No 2)

  • MNC:

    [2018] QPEC 40

  • Court:

    QPEC

  • Judge(s):

    Morzone DCJ

  • Date:

    31 Aug 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Birmingham v Corrective Services Commission of NSW (1988) 15 NSWLR 292
2 citations
Jump To
Cite 1 - (1988) 15 NSWLR 292
Cite 2 - (1988) 15 NSWLR 292
Briginshaw v Briginshaw (1938) 60 C.L.R 336
3 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Cite 3 - (1938) 60 C.L.R 336
Cuthbert v Moreton Bay Regional Council [2015] QPEC 63
2 citations
Jump To
Cite 1 - [2015] QPEC 63
Cite 2 - [2015] QPEC 63
Darwen & Anor v Pacific Reef Fisheries (Australia) Pty Ltd & Ors [2009] QPELR 262
2 citations
Jump To
Cite 1 - [2009] QPELR 262
Cite 2 - [2009] QPELR 262
James Hardie & Coy Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53
2 citations
Jump To
Cite 1 - (1998) 196 CLR 53
Cite 2 - (1998) 196 CLR 53
Jones v Wrotham Park Settled Estates (1980) AC 74
3 citations
Jump To
Cite 1 - (1980) AC 74
Cite 2 - (1980) AC 74
Cite 3 - (1980) AC 74
Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404
3 citations
Jump To
Cite 1 - (1987) 11 NSWLR 404
Cite 2 - (1987) 11 NSWLR 404
Cite 3 - (1987) 11 NSWLR 404
Loader v Moreton Bay Regional Council [2013] QCA 269
3 citations
Jump To
Cite 1 - [2013] QCA 269
Cite 2 - [2013] QCA 269
Cite 3 - [2013] QCA 269
Newcastle City Council v GIO General Limited (1997) 191 CLR 85
2 citations
Jump To
Cite 1 - (1997) 191 CLR 85
Cite 2 - (1997) 191 CLR 85
R v PLV (2001) 51 NSWLR 736
2 citations
Jump To
Cite 1 - (2001) 51 NSWLR 736
Cite 2 - (2001) 51 NSWLR 736
R v Young (1999) 46 NSW LR 681
2 citations
Jump To
Cite 1 - (1999) 46 NSW LR 681
Cite 2 - (1999) 46 NSW LR 681
Ravenscroft v Nominal Defendant[2008] 2 Qd R 32; [2007] QCA 435
2 citations
Jump To
Cite 1 - [2008] 2 Qd R 32
Cite 2 - [2008] 2 Qd R 32
Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275
2 citations
Jump To
Cite 1 - (1988) 15 NSWLR 275
Cite 2 - (1988) 15 NSWLR 275
Warringah Shire Council v Sedevcic (1987) 63 LGERA 361
2 citations
Jump To
Cite 1 - (1987) 63 LGERA 361
Cite 2 - (1987) 63 LGERA 361

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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