In brief
The Appellant was the owner of the subject land comprising significant land holdings, which are located southwest of Surfers Paradise and immediately to the west of Nerang Broadbeach Road. The road separates the subject land from a small canal development adjacent to the Nerang River. In particular, the subject land lies to the west of the Witt Avenue Canal.
The Respondent issued a clean-up notice on the basis that a contamination incident involving "
the release of acidic soil products and iron rich water" from the subject land had occurred (at [
6]). Subsequently, a second clean-up notice was issued to the Appellant prescribing remedial works to "
prevent or minimise the contamination" (at [
12]).
The Court found that the Respondent should not have issued the clean-up notice (Notice) setting out the remedial works for the purpose of preventing or minimising the contamination.
The Respondent had to establish at the higher end of the civil standard, being on the balance of probabilities, that the Notice was appropriately issued
The Appellant contended that the Respondent had to prove its case by establishing that it was appropriate for the Respondent to issue the Notice, and that the standard of proof had to be at a standard higher than the balance of probabilities.
The Respondent did not identify which party had to prove its case, however, it contended that the standard of proof should be simply on the balance of probabilities.
"Prior to the issue of the notice it was for the chief executive to determine whether such a notice should issue. Such a notice ought not have issued unless the chief executive was satisfied that it was appropriate in the circumstances. Similarly, the court, on a de novo hearing, ought not dismiss the appeal unless it is so satisfied. In such circumstances the onus properly falls upon the respondent, as the authority contending that it is appropriate that the notice be given."
The Court accepted the Appellant's contention that the standard of proof had to be at the higher end of the balance of probabilities. In doing so, the Court considered the following:
- the nature of the allegation made by the Respondent;
- the significant financial and managerial costs to comply with the Notice for an unknown period of time;
- the availability of penal sanctions for failure to comply with the Notice.
The Court accepted the evidence advanced by the expert witnesses that the remedial works prescribed in the Notice would not prevent or minimise the contamination
The Court accepted the following evidence advanced by the expert witnesses:
- Appellant's expert witness – The remedial works prescribed in the Notice were "neither practicable nor equitable" and that an alternative approach provided in the Joint Expert Report would be sufficient for the purpose of preventing or minimising the contamination.
- Respondent's expert witness – It was unlikely that the prescribed remedial works would prevent or minimise the contamination and the alternative approach provided in the Joint Expert Report would suffice.
Importantly, the Court was satisfied that a different approach to that prescribed in the Notice that was formulated by the witnesses would prevent or minimise the contamination, whereas what was prescribed in the Notice would not.
The Court was satisfied that the Appellant was a prescribed person for a contamination incident to whom the Respondent could issue the Notice
In exercising its discretion to issue the Notice under section 363H of the Act, the Respondent was not required to establish that the Appellant had committed the offence referred to in the Notice, however, it had to be satisfied that a "contamination incident" had occurred and that the Appellant was a "prescribed person for a contamination incident".
The Court was satisfied that a contamination incident occurred in accordance with the definitions of the terms in the Act, including "contamination", "release" and "contamination incident".
The Court rejected the arguments advanced by the Respondent that the Appellant was a "prescribed person" for the purpose of the Act because it was considered a person permitting the contamination incident to occur and that the Appellant was "
the owner, or person in control, of a contaminant involved in the incident", in accordance with
section 363G(b)(ii) of the Act. Regardless, the Court was ultimately satisfied that the Appellant was a "prescribed person" for the purpose of the Act as it was the occupier of the subject land at all relevant times.
The Court found that the Respondent should not have issued the Notice under section 363H of the Act
The Court considered whether the Respondent should have exercised its discretion to issue the Notice and ultimately found that the Notice should not have been issued for the following reasons:
- the works specified in the Notice would be a waste of time and money as they would not remedy the contamination incident;
- there was no evidence that the Respondent had or would have agreed to the operation of the floodgates in a manner that was identified by the expert witnesses;
- the financial and managerial burdens placed upon the Appellant to implement the works identified by the expert witnesses "would amount to the imposition of unjustifiably disproportionate consequences" (at [57]); and
- it was relevant to consider the fact that the Appellant inherited the contamination problems that were not fully appreciated at the time of the purchase of the subject land.
The Court ordered that the Notice be set aside and the proceeding was adjourned to hear any consequential orders.