Supreme Court Ruling on Industrial Emissions: Key Decision on Odour Pollution and Local Amenity
A recent decision of the Supreme Court of Western Australia reminds us of the continuing tension between urban development and industrial operations, which has been a feature of the client work of Glen McLeod Legal over many years.
In Cockburn Cement Ltd v Cowie [2023] WASC 343 the main question was: When does an industrial emission become unreasonable? This was in the context of the prosecution of a major operator for an offence under the Environmental Protection Act 1986 (WA) (EP Act) but the case potentially has broader application to the law of nuisance at common law and the role of industrial buffer policies.
Background
Cockburn Cement Ltd (Appellant) was convicted in the Magistrates Court of 13 charges of breaching s 49(5)(a) of the EP Act in relation to the unreasonable emission of odours.
The Appellant manufactures quicklime and lime in Munster, a process which produces organic material. The organic material (originating from the use of shell sand in production processes) emits a distinct odour. The unreasonable emissions were emitted from their premises on various dates, impacting nearby residents in the southern Perth suburb of Beeliar.
At first instance, the Magistrate had held that the odours had interfered with the convenience, comfort, or amenity of the residents. A fine of $290,000 was ordered for a breach of s 49(5) of the EP Act. The Appellant appealed to the Supreme Court.
Unreasonable Emissions
The Supreme Court held that an emission is unreasonable if it interferes with the ‘amenity of any person’ rather than the amenity of the locality where that person is situated. It is necessarily concerned with the private amenity of a person’s individual surroundings. The amenity of any person was seen to involve the pleasantness of the person’s situation (their individual surroundings).
It was held that the test for determining whether an emission unreasonably interferes with the convenience, comfort or amenity of any person is an objective test. Emphasis was also placed upon whether an odour caused a person to act in a particular way.
Here, an unreasonable interference for the purposes of s 49(1) of the EP Act is said to have occurred where the emission did in fact, viewed objectively, unreasonably interfere with the convenience, comfort, or amenity of a person.
Whether interference with a person’s use and enjoyment of land is unreasonable in private nuisance are relevant under s 49(1). Furthermore, the following factors were identified as being of primary relevance in relation to s 49(1):
the nature, strength, duration and frequency of an odour within the period covered by a charge;
the impact that the odour had on the activities of a person or persons;
the nature of established uses in and character of the locality, and the extent to which residents moving into the area could reasonably expect to experience interference from pre-existing uses;
the social utility of the activities which led to the emissions;
whether the emission of the odour rose from ordinary operations or an accident, and whether the emission is likely to recur;
whether all reasonable precautions were taken to minimise any interference;
any hypersensitivity of the person; and
the principle that a finding of unreasonable interference must justify the imposition of a criminal penalty.
The Appellant contended that the Magistrate had erred in finding on the facts that the emissions had amounted to unreasonable emissions. The Judge held that the Magistrate was correct in their findings. In particular, the capacity of the odour to cause people to alter their activities was found to amount to an unreasonable interference with their convenience and amenity.
For example, the odour prevented one resident from leaving their front door and window open. This impact was deemed to be an unreasonable interference with the resident’s convenience and amenity.
Accordingly, the finding by the Magistrate that the odour was an unreasonable emission was upheld.
Licencing Conditions
The Supreme Court also addressed a constructional argument led by the Appellant.
This related particularly to the construction of the word ‘ensure’ in a condition of Cockburn Cement’s licence to operate under the EP Act. Condition 18C of the licence provides that the Appellant must ensure that odour emitted from the premises does not unreasonably interfere at any time with the health, welfare, convenience, comfort or amenity of any person not on the premises [Emphasis added]. The Appellant submitted that the term ‘ensure’ did not create strict liability, but a standard of behaviour to take all reasonably practicable steps to limit the risk of occurrence of something.
The Court held that the term ‘ensure’ should be given its ordinary and natural meaning. To attribute the standard of care approach argued by the Appellant to the wording of Condition 18C would have allowed unreasonable emissions to occur so long as reasonably practicable steps were taken to prevent them.
Outcome
The Appellant was successful in relation to the penalty of $290,000, the Court holding that this was being manifestly excessive. As a result, the penalty was reduced to $245,000. All other grounds of appeal were either refused leave or dismissed.