Blasting of boats held to have breached the general environmental duty and an environmental authority

In brief

The case of Cuthbert v Moreton Bay Regional Council [2015] QPEC 63 concerned an appeal commenced in the Planning and Environment Court by Mrs Heather Cuthbert against the Moreton Bay Regional Council's internal review that affirmed the issuance of an environmental protection order under the Environmental Protection Act 1994 in respect of Mrs Cuthbert's boat maintenance and repair facility at 48 Bishop Parade, Toorbul.

The Court considered whether the operator of the facility had breached conditions of the relevant environmental authority issued for the facility and the general environmental duty under the Environmental Protection Act 1994 and whether an environmental protection order was required to secure their future compliance.

The Court found that there had been non-compliance with both the general environmental duty and the environmental authority. However, the Court considered that the environmental protection order that had been issued by the council was unnecessarily restrictive, prescriptive and onerous.

On this basis, the Court allowed Mrs Cuthbert’s appeal in part, setting aside the council's environmental protection order, but ordering that a substituted environmental protection order be issued requiring Mrs Cuthbert to prepare and lodge with the council a stormwater management plan and a site-based management plan.

The facility was surrounded by a sensitive environment part of the Ramsar Convention Wetland

The boat maintenance and repair facility had been operated by various owners since 1962 which included a boat ramp, slipway and jetty. Following the introduction of the Environmental Protection Act 1994, the use of the facility was identified as an environmentally relevant activity and subsequently an environmental authority was issued.

It was the use of the slipway to repair, sand, spray, fibre glass, water-blast and anti-foul boats that the Court described as being the "…nucleus of disputation with the respondent council amid a chorus of complaints from local residents" (at [1]). The slipway was adjacent to the Elimbah Creek which is near to the Pumicestone Passage. Being located as such meant that the facility was surrounded by a sensitive environment part of the Ramsar Convention Wetland.

The use of the facility was the subject of two previous appeals involving the environmentally relevant activity; the first against an enforcement notice and the second against a refusal of a development application.

Court accepted the evidence of the expert witnesses and local residents and was satisfied that conditions of the environmental authority relating to air quality, noise, water quality and land contamination had not been complied with

The council asserted that there had been non-compliance with the environmental authority due to a failure to comply with certain conditions. In response, Mrs Cuthbert submitted that there was no probative or substantive evidence before the Court that would prove the non-compliance on the balance of probabilities.

The Court had the benefit of evidence from local residents, a number of experts, Mrs Cuthbert and Mr Cuthbert, who were primarily responsible for the operation of the facility. The Court found the evidence of the expert witnesses called by the council and the local residents to be credible. In contrast, the evidence given by Mrs Cuthbert and Mr Cuthbert was not viewed favourably by the Court.

The Court considered a number of conditions of the environmental authority in turn, finding that during the operation of the facility, and in contravention of the environmental authority:

• contaminants were released which caused noxious or offensive odour beyond the boundary of the premises
• dust/particular matter was released beyond the boundaries of the premises
• spray painting had been conducted in the absence of an authorised spray booth
• noise contaminants had been released at levels likely to cause environmental harm and likely to exceed prescribed levels
• contaminants had been caused or permitted to be released directly or indirectly into Elimbah Creek
• contaminants had likely been released onto land by irrigation using contaminated water
• inadequate waste management arrangements had been adopted

Court found that there had been a breach of the general environmental duty under the Environmental Protection Act 1994 as the activity had caused, or was likely to cause, environmental harm

The Environmental Protection Act 1994 imposes a general environmental duty requiring a person to not "carry out any activity that causes, or is likely to cause, environmental harm unless the person takes all reasonable and practicable measures to prevent or minimise the harm."

For the same reasons the Court found that Mrs Cuthbert had breached the conditions of the environmental authority, the Court found that she had breached her general environmental duty on the basis that her activity was carried out in a way that had caused, or was likely to cause, environmental harm.

Court found that the environmental protection order given by the council was not appropriate but decided to exercise its discretion to issue an amended environmental protection order

The Court has a discretion as to whether to issue an environmental protection order having regard to the particular circumstances of a given case. The Court was not bound by the council’s previous decision to issue an environmental protection order and had to undertake its own assessment of the relevant criteria to determine whether to issue such an order in this case.

In considering the nature and the extent of non-compliance with the environmental authority and the general environmental duty, the Court was satisfied that there was scientific certainty that the operation of the facility had caused serious environmental damage. The Court relevantly observed that the damage had been caused by ongoing non-compliance with both the environmental authority and the general environmental duty and that Mrs Cuthbert had had ample opportunity to rectify such non-compliance.

In considering the environmental protection order that had been issued by the council, the Court was of the view that it was "…unnecessarily restrictive, prescriptive and onerous, with the potential to derogate from the original grant of the [environmental authority]." (at [142]). The timeframes in the environmental protection order proposed by the council were viewed by the Court as unreasonable, impractical and as having the potential to create intolerable immediate material financial implications for Mrs Cuthbert.

Appellant required to prepare and implement site-based and stormwater management plans

However, the Court did find that an environmental protection order was necessary to secure compliance with the environmental authority and the general environmental duty. The Court therefore made an environmental protection order requiring Mrs Cuthbert to prepare and implement an appropriate site-based management plan and stormwater management plan.

The Court imposed a timeframe for compliance of 90 days as opposed to the seven-day timeframes imposed under the council’s original environmental protection order.