The case of Lockyer Valley Regional Council v McGettigan & Ors [2025] QPEC 29 concerned an originating application by the Lockyer Valley Regional Council (Council) to the Planning and Environment Court of Queensland (Court) seeking urgent interim orders to restrain and require the remedy of an alleged environmental nuisance committed by the First Respondent contrary to section 440(2) of the Environmental Protection Act 1994 (Qld) (EPA), which states that a person must not unlawfully cause an environmental nuisance. 

The dumping and stockpiling of bread and ingredients that make bread (Bread Materials) on land at Blenheim (Land) are alleged to be the cause the environmental nuisance (at [2]).  

The Court relevantly made orders that in relation to the Land, until a further order of the Court, the First Respondent is to cease stockpiling Bread Materials and manage Bread Materials as set out in the Court's orders, cease and not further undertake the burning of plastic or deceased animals, remove current stockpiles and mounds of Bread Materials and Bread Materials mixed with matter such as soil, except for those related to human consumption contained within a dwelling, and bury or remove deceased animals.  

A local government is an administering authority under the EPA where the administration and enforcement of a matter has been devolved to a local government under section 514 of the EPA and section 130 of the Environmental Protection Regulation 2019 (Qld), unless the chief executive gives the local government a written notice stating the activity involves serious or material environmental harm. Relevantly, the administration and enforcement of section 440 of the EPA is devolved to each local government and no notice has been given to the Council by the chief executive. Thus, the Council as the administering authority has a right to commence proceedings to remedy or retrain an offence or a threatened or anticipated offence against section 440 of the EPA (see [13] to [16] and section 505(1)(b) of the EPA). 

In a proceeding brought by an administering authority, the Court may make the orders it considers appropriate to remedy or restrain the offence if the Court is satisfied that an offence against the Act has been committed, whether or not it has been prosecuted, or that an offence against the Act will be committed unless restrained, and the orders may be made on an interim basis if the Court considers it would be proper to make the order (see section 505(5) and section 506(2) of the EPA). The Court observed that the discretion to make an order under the section is broad and guided by subsections (6) to (9) of section 505 (see [19] to [20]). 

The questions in deciding whether to make interim orders are those applicable to the grant of an interlocutory injunction, being, firstly, whether there is a serious question to be tried and, secondly, whether the balance of convenience favours the grant of the interim relief (at [27]). 

Serious question to be tried 

The Court held that the first question involves considering if there is sufficient evidence that an offence against section 440(2) of the EPA has or will be committed.   

The expert evidence before the Court supported that the First Respondent's dumping and stockpiling of Bread Materials to feed cattle is the cause of the odour alleged to be environmental nuisance and the affidavit evidence of nearby residents recorded their almost daily encounter of the odour and the change in their usual activities to avoid the odour (see [33] to [46]). 

An act or omission that is a contravention of a local law is not an environmental nuisance (see section 440(3) and schedule 1, part 1 of the EPA). Section 8 of the Council's Local Law No. 2 (Animal Management) 2011 and schedule 4 and schedule 5 of Subordinate Local Law No. 2 (Animal Management) 2011 (Local Law) relevantly require compliance with minimum standards when keeping animals on premises, including that "excreta, food scraps and other material" that is or is likely to become offensive is collected at least daily and, if not immediately removed from the premises, is kept in a waste container of a kind approved by an authorised person. 

The Council argued that the Local Law does not apply to the First Respondent's activities because the Bread Materials are not "food scraps or other material" of a scale only eaten by cattle on the Land as evidenced by some of the Bread Materials being taken offsite and the Local Law is directed at omissions to collect material daily whereas the alleged environmental nuisance is the dumping of the Bread Materials (see [51] and [52]). 

The Court was satisfied the evidence demonstrated a serious question to be tried (at [56]). 

Balance of convenience favours granting relief 

The following considerations were relevant to the balance of convenience and the Court held, whilst none were decisive on their own, they favour making the interim orders (see [57] to [64]): 

• The evidence about the ongoing impact on the activities on local residents, the likelihood of the activities continuing, the lack of management controls in place to manage the environmental nuisance, which expert evidence suggested are relatively straightforward, and the First Respondent's history of not complying with Council notices. 

• That the Bread Materials are used as supplementary feed for cattle, the removal of which may impact on the welfare of the animals, and that an inference can be drawn that there will be a detrimental impact on the First Respondent if he is unable to continue to feed the cattle that way. The Court held that the significance of the impact on the First Respondent is higher because the Council did not offer a damages undertaking for the relief sought.  

• The potential of the First Respondent looking for an alternative tenancy which will impact the Second Respondent, who is the owner of the Land. 

The Court's discretion to grant the interim orders is to be guided by the purpose of the EPA and section 506 of the EPA. 

The Court held that the First Respondent's activities, which have no apparent lawful basis, are causing significant impact on air environmental values and the amenity of nearby residents which is worsened by the hot weather, and that the relief sought will improve those impacts. The Court also considered the First Respondent's asserted willingness to implement measures to manage the odours and that the substantive matter hearing in early 2026 is likely (see [67] to [70]).  

The Court was satisfied that the interim orders should be made, but on different terms to those contented for by the Council (at [71]). 

The Court made orders requiring the First Respondent to cease activities responsible for the odour, to remove existing stockpiles and mounds of Bread Materials and Bread Materials mixed with matter such as soil, except for those related to human consumption contained within a dwelling, and bury or remove deceased animals (at [72]). 

At the time of the drafting of this article, the hearing in the substantive proceeding has not occurred and no final orders have been made.