Land and Environment Court New South Wales

• Medium Neutral Citation: McCallum v Sandercock [2011] NSWLEC 175
• Hearing dates: 13, 14 and 15 December 2010
• Decision date: 07 October 2011
• Jurisdiction: Class 4
• Before: Pepper J

Decision

The Court makes the following orders:

1. within seven days the parties are directed to bring in short minutes of order giving effect to the reasons contained in this judgment;

2. the costs of the proceedings are reserved. The proceedings are stood over to a date to be fixed within seven days to determine any disputed questions of costs; and

3. liberty to apply generally on two days notice.

• Catchwords: CIVIL ENFORCEMENT: proceedings for orders to restrain or remedy breaches of an environmental statute - owner of private land adjoining private quarry - whether noise, air and water pollution established - whether pollution had breached legislation or would breach legislation in the future - past and anticipated future breach established - whether appropriate to restrain or remedy breach - no order made restraining breach - orders made to mitigate future breach - factors influencing the exercise of the Court's discretion not to grant relief.
• Legislation Cited: Protection of the Environment Operations Act 1997 ss 116, 120, 124, 126, 139, 140, 252, 253
• Cases Cited: Blue Mountains Conservation Society Inc v Delta Electricity (No 3) [2011] NSWLEC 145; Director-General, Department of Environment, Climate Change and Water v; Venn [2011] NSWLEC 118; Meriton Apartments Pty Ltd v Sydney Water Corporation [2004] NSWLEC 699; (2004) 138 LGERA 383
• Category: Principal judgment
• Parties: Beryl A McCallum (Applicant); Raymond J Sandercock (First Respondent); Wendy Sandercock (Second Respondent)
• Representation: Mr F G Kalyk (Applicant); Ms F J Berglund (First and Second Respondents); Hynes & McCormack (Applicant); Russell J Baxter (First and Second Respondents)
• File Number(s): 40042 of 2010

Judgment

Mrs McCallum Lives Next to a Hard Rock Quarry

1 Mrs Beryl McCallum lives approximately 10kms northwest of Murwillumbah in the Tweed Shire, on a property on top of a ridge adjacent to and beneath a hard rock quarry owned by Mrs Wendy Sandercock and Mr Raymond Sandercock ("the Sandercocks"). The surrounding countryside is characterised by gently undulating grazing pasture and pockets of lush vegetation.

2 The quarry produces various materials that have been utilised locally over a period of 55 years. The operations of the quarry, however, cause acid rock drainage ("ARD"). But ARD is not uncommon in open cut mining operations such as those present at the Sandercock quarry. It is caused when naturally occurring iron sulphide minerals are exposed to air or water through excavation or processing. At the Sandercock quarry localised naturally present pyritic rock is exposed by the hard rock quarry workings which is oxidized to produce low pH, or acidic, surface and groundwater.

3 The quarry is located at Lot 2, Harry's Rd, North Arm in the Tweed Shire (otherwise known as Harry's Road, Crystal Creek). The quarry operates from a property which is 53.25ha, most of which is grazed by agisted stock by Mr Ian Halliday and includes a small area leased for the growing of passion fruit by Mr Bernard Glasby.

4 To the east of the Sandercock quarry are another two quarries: the first is owned by Tweed Shire Council ("the council"); and the second, known as 'Singh's quarry', is a privately owned and operated quarry. Both of these quarries have since suspended their operations, although the council quarry more recently than the Singh quarry.

5 The Sandercock quarry operates neither pursuant to a development consent nor a licence issued under the Act. Rather, it has the benefit of existing use rights.

6 The Sandercocks took over the operation of the quarry in September 1998 when they purchased the business from Mr Thomas Kinnear and Mrs Myree Kinnear. In June 2000 the Sandercocks purchased the land upon which the quarry is located.

7 The business of the quarry includes the winning by blasting, the crushing, the processing, the loading and the transporting of the rock from the quarry.

8 Mr Kinnear had been operating the quarry for more than 25 years. During the time Mr Kinnear owned and operated the quarry it operated seven days a week, from early morning into the night, with much of the screening and crushing taking place after hours under lights.

9 There is no dispute that the quarry was in operation in 1983 when Mr Peter McCallum and Mrs Beryl McCallum purchased the plot of land upon which Mrs McCallum currently resides, at 695 Numinbah Road (or 4 Harry's Road), Crystal Creek (Lot 21 in DP 1094703), Tweed Shire. The land slopes sharply downwards, with the residential dwelling located at the top of the hill on a ridge above the western side of the quarry.

10 It is also not a matter of controversy that when Mr and Mrs McCallum purchased the plot of land they had originally intended to build a residence towards the bottom of the slope further away from the quarry.

11 In February 2010, Mrs McCallum commenced proceedings in this Court by way of application seeking an order pursuant to s 253 of the Protection of the Environment Operations Act 1997 ("the Act") that the Sandercocks be restrained from continuing to operate the quarry. Section 253 of the Act states as follows:

253 Restraint of breaches of an Act or statutory rules that harm the environment

(1) Any person may bring proceedings in the Land and Environment Court for an order to restrain a breach (or a threatened or apprehended breach) of any other Act, or any sta t utory rule under any other Act, if the breach (or the threatened or apprehended breach) is causing or is likely to cause harm to the environment.

(2) Any such proceedings may be brought whether or not any right of that person has been or may be infringed by or as a consequence of the breach (or the threatened or apprehended breach).

(3) A person (other than the EPA or a member of the staff of the EPA) who brings any such proceedings is required to give a copy of the application to the EPA as soon as practicable after the application is made. The EPA is entitled to become a party to those proceedings.

(4) If the Court is satisfied that a breach, or a threatened or apprehended breach, will, unless restrained by order of the Court, be committed or be likely to be committed, it may make such orders as it thinks fit to restrain the breach or other conduct of the person by whom the breach is committed or by whom the threatened or apprehended breach is likely to be committed.

(5) Without limiting the powers of the Court under this section, an order under this section may suspend any environment protection licence.

12 The basis of the relief is, it is alleged, the harm to the environment caused, or likely to be caused, by the operations of the quarry due to air, noise and water pollution (a land pollution claim was abandoned on the first day of the hearing).

13 The term "pollution" is relevantly defined in the Dictionary to the Act to mean: (a) "water pollution"; (b) "air pollution"; or (c) "noise pollution".

14 This pollution triumvirate, Mrs McCallum claims, has either breached the Act in the manner described below, or gives rise to an anticipated breach of the Act pursuant to s 252 of the Act:

252 Remedy or restraint of breaches of this Act or regulations

(1) Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act or the regulations.

(2) Any such proceedings may be brought whether or not proceedings have been instituted for an offence against this Act or the regulations.

(3) Any such proceedings may be brought whether or not any right of the person has been or may be infringed by or as a consequence of the breach.

(4) Any such proceedings may be brought by a person on the person's own behalf or on behalf of another person (with their consent), or of a body corporate or unincorporate (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings.

(5) Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings.

(6) If the Court is satisfied that a breach has been committed or that a breach will, unless restrained by order of the Court, be committed, it may make such orders as it thinks fit to remedy or restrain the breach.

(7) Without limiting the powers of the Court under this section, an order under this section may suspend any environment protection licence.

(8) In this section:

breach includes a threatened or apprehended breach.

"Air Pollution" Caused by Dust

15 Mrs McCallum asserts that the operation of the quarry causes "air pollution" pursuant to the Act due to the emission of dust in excess of the maximum limits for deposited dust levels as specified in Table 7.1 of a 2005 DEC document entitled Approved & Guidance for the Modelling & Assessment of Air Pollutants in NSW ("the Air Pollutants Guideline").

16 As defined in the Act's Dictionary, "air pollution means the emission into the air of any air impurity". The term "air impurity" is defined so that it "includes smoke, dust (including fly ash), cinders, solid particles of any kind, gases, fumes, mists, odours and radioactive substances."

17 Table 7.1 of the Air Pollutants Guideline provides as follows:

 

Pollutant	Averaging Period	Concentration		Source
		g/m²/month a	g/m²/month b
Deposited Dust c	Annual	2	4	NERDDC (1988)

a - Maximum increase in deposited dust level

b - Maximum total deposited dust level

c - Dust is accessed as insoluble solids as defined by AS 3580.10.1-1991 (AM-19)

18 Thus it is alleged that the Sandercocks have failed to maintain, operate and deal with the materials, plant and equipment at the quarry in a proper and efficient manner in breach of ss 124 and 126 of the Act thereby causing air pollution.

19 Those provisions state:

124 Operation of plant (other than domestic plant)

The occupier of any premises who operates any plant in or on those premises in such a manner as to cause air pollution from those premises is guilty of an offence if the air pollution so caused, or any part of the air pollution so caused, is caused by the occupier's failure:

(a) to maintain the plant in an efficient condition, or

(b) to operate the plant in a proper and efficient manner.

126 Dealing with materials

(1) The occupier of any premises who deals with materials in or on those premises in such a manner as to cause air pollution from those premises is guilty of an offence if the air pollution so caused, or any part of the air pollution so caused, is caused by the occupier's failure to deal with those materials in a proper and efficient manner.

(2) In this section:

deal with materials means process, handle, move, store or dispose of the materials.

materials includes raw materials, materials in the process of manufacture, manufactured materials, by-products or waste materials.

20 Although not specified by Ms McCallum, the "materials" referred to in s 126 of the Act presumably include the winned, crushed, screened, loaded and transported rock.

"Noise Pollution" Caused by "Offensive Noise"

21 The term "noise pollution" is defined in the Dictionary to mean "the emission of offensive noise". The term "offensive noise" is in turn defined as noise:

(a) that, by reason of its level, nature, character or quality, or the time at which it is made, or any other circumstances:

(i) is harmful to (or is likely to be harmful to) a person who is outside the premises from which it is emitted, or

(ii) interferes unreasonably with (or is likely to interfere unreasonably with) the comfort or repose of a person who is outside the premises from which it is emitted, or

(b) that is of a level, nature, character or quality prescribed by the regulations or that is made at a time, or in other circumstances, prescribed by the regulations.

22 Mrs McCallum claims that the operation of the quarry causes "offensive noise" to be emitted within the meaning of that expression within the Dictionary to the Act insofar as the noise measured at her residence exceeds the background noise present by more than 15 dBA and exceeds the criteria for intrusiveness and amenity assessed under the Environment Protection Authority ("the EPA") Industrial Noise Policy ("the Noise Policy").

23 Again, it is contended that the noise pollution is caused by the Sandercocks' failure to maintain, operate and deal with the plant, equipment or materials at the quarry in a proper and efficient manner in breach of ss 139 and 140 of the Act respectively.

24 Those sections relevantly provide:

139 Operation of plant

The occupier of any premises who operates any plant (other than control equipment) at those premises in such a manner as to cause the emission of noise from those premises is guilty of an offence if the noise so caused, or any part of it, is caused by the occupier's failure:

(a) to maintain the plant in an efficient condition, or

(b) to operate the plant in a proper and efficient manner.

140 Dealing with materials

(1) The occupier of any premises who deals with materials in or on premises in such a manner as to cause the emission of noise from those premises is guilty of an offence if the noise so caused, or any part of it, is caused by the occupier's failure to deal with those materials in a proper and efficient manner.

(2) In this section:

deal with materials means process, handle, move, store or dispose of the materials.

materials includes raw materials, materials in the process of manufacture, manufactured materials, by-products, or waste materials.

"Water Pollution" Caused by the Operation of the Quarry

25 Finally, Mrs McCallum alleges that the operation of the quarry has, and continues to, cause water pollution by the introduction into an unnamed creek flowing through the quarry and ultimately into the Rouse River, solid and chemical deposits that alter the condition of the water in the creek within the meaning of "water pollution" contained in the Act.

26 The term "water pollution or pollution of waters" is defined in the Dictionary to mean:

water pollution or pollution of waters means :

(a) placing in or on, or otherwise introducing into or onto, waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, so that the physical, chemical or biological condition of the waters is changed, or

(b) placing in or on, or otherwise introducing into or onto, the waters (whether through an act or omission) any refuse, litter, debris or other matter, whether solid or liquid or gaseous, so that the change in the condition of the waters or the refuse, litter, debris or other matter, either alone or together with any other refuse, litter, debris or matter present in the waters makes, or is likely to make, the waters unclean, noxious, poisonous or impure, detrimental to the health, safety, welfare or property of persons, undrinkable for farm animals, poisonous or harmful to aquatic life, animals, birds or fish in or around the waters or unsuitable for use in irrigation, or obstructs or interferes with, or is likely to obstruct or interfere with persons in the exercise or enjoyment of any right in relation to the waters, or

(c) placing in or on, or otherwise introducing into or onto, the waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, that is of a prescribed nature, description or class or that does not comply with any standard prescribed in respect of that matter,

and, without affecting the generality of the foregoing, includes:

(d) placing any matter (whether solid, liquid or gaseous) in a position where:

(i) it falls, descends, is washed, is blown or percolates, or

(ii) it is likely to fall, descend, be washed, be blown or percolate,

into any waters, onto the dry bed of any waters, or into any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted, or

(e) placing any such matter on the dry bed of any waters, or in any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted,

if the matter would, had it been placed in any waters, have polluted or have been likely to pollute those waters.

27 The term "waters" has been defined to mean:

waters means the whole or any part of:

(a) any river, stream, lake, lagoon, swamp, wetlands, unconfined surface water, natural or artificial watercourse, dam or tidal waters (including the sea), or

(b) any water stored in artificial works, any water in water mains, water pipes or water channels, or any underground or artesian water.

28 The effect of the introduction of these deposits into the water has been to lower the pH thereby causing conductivity to exceed accepted guidelines and standards. Although the statement of claim particularised guidelines recommended by the Australia and North Queensland Environment & Conservation Council, 1992, during the hearing Mrs McCallum relied instead on relevant criteria stated in the Australian and New Zealand Guidelines for Fresh and Marine Water Quality, National Water Quality Management Strategy , 2000 ("the ANZECC and ARMCANZ 2000 guidelines") contained in the expert report of Mr Graham Lancaster.

29 The ANZECC and ARMCANZ 2000 guidelines provide by way of assessment criteria a pH limit of between 6.5-7.5. The lower the pH, the more acidic the water.

30 As a consequence and by reason of the introduction of the solid and chemical deposits into the watercourse the Sandercocks have, Mrs McCallum asserts, breached ss 116 and 120 of the Act.

31 These two provisions relevantly state:

116 Leaks, spillages and other escapes

(1) If a person wilfully or negligently causes any substance to leak, spill or otherwise escape (whether or not from a container) in a manner that harms or is likely to harm the environment:

(a) the person, and

(b) if the person is not the owner of the substance, the owner,

are each guilty of an offence.

(2) If:

(a) the person in possession of the substance at the time of the leak, spill or other escape, or

(b) the owner of any container from which the substance leaked, spilled or escaped, or

(c) the owner of the land on which the substance or any such container was located at the time of the leak, spill or other escape, or

(d) the occupier of the land on which the substance or any such container was located at the time of the leak, spill or other escape,

wilfully or negligently, in a material respect, caused or contributed to the conditions that gave rise to the commission of the offence under subsection (1), that person, owner or occupier is guilty of an offence.

...

(5) In this section:

container includes anything used for the purpose of storing, transporting or handling the substance concerned.

owner of a substance includes, in relation to a substance that has leaked, spilled or otherwise escaped, the person who was the owner of the substance immediately before it leaked, spilled or otherwise escaped.

120 Prohibition of pollution of waters

(1) A person who pollutes any waters is guilty of an offence.

(2) In this section:

pollute waters includes cause or permit any waters to be polluted.

The Court Inspects the Sandercock Quarry and Mrs McCallum's Property

32 On the first day of the hearing the Court inspected both the Sandercock quarry and Mrs McCallum's property. The quarry was not in operation at the time, but the Court was able to observe the plant and equipment on site and the physical proximity of the quarry to Mrs McCallum's house.

33 The Court also observed the state of the vegetation surrounding the quarry and Mrs McCallum's property and was able to take note of the creek flowing through the property.

34 Dust was visible on the vegetation buffer on the top of the ridge between the quarry and the boundary of Mrs McCallum's property.

35 Red sediment was visible in a sedimentation pond at the quarry site and surrounding the pond. This sediment was also visible in the creek.

Disposition of the Proceedings

36 The Court has found on the balance of probabilities that the operation of the quarry has caused water and noise pollution, but that as a consequence only s 120 of the Act has been, and is likely to be in the future, breached by the Sandercocks.

37 In all the circumstances, moreover, the Court has declined to exercise its discretion to grant relief by restraining the operation of the Sandercock quarry. The Court has, however, ordered remedial relief directed at mitigating, but not eliminating, the detrimental effects of the ARD from the quarry on the unnamed creek located at the bottom of the quarry.

Factual Background

38 The factual background to the proceedings was principally contained in statements made by Mrs Sandercock and affidavits sworn by Mrs McCallum. Additional lay evidence was filed on behalf of the Sandercocks from Mr Bernard Glasby and Mr Robert Kinnear (the son of Mr Thomas Kinnear, the latter of whom is deceased).

According to Mrs McCallum

39 In her affidavits dated 19 March and 1 December 2010, Mrs McCallum stated that when she and her husband (who has since passed away) purchased the property there was "a small quarry" operating on the site that was owned by Mr Thomas Kinnear.

40 The quarry was operated by Mr Kinnear in such a manner that Mrs McCallum was not affected by the noise and dust pollution from it. However, since the Sandercocks took over the running of the quarry, it has been the observation of Mrs McCallum that they have gradually increased the quarry's hours of operation, increased its output and have conducted the operations of the quarry in a manner that creates, in her view, dust, noise and water pollution.

41 There can be no doubt that the distress Mrs McCallum describes in her affidavits caused by the operation of the quarry is genuine. She states that she is regularly disturbed by the noise and is constantly cleaning dust "from the quarry" both within and outside her house. Mrs McCallum also complains that the plant growth on her property between the house and the quarry has died due to the excessive deposition of dust. Mrs McCallum has kept a handwritten record of her experiences in diaries, together with her observations on the hours of operation of the quarry.

42 Mrs McCallum has made numerous complaints to the council and the EPA concerning the dust, noise and water pollution. According to Mrs McCallum, neither body has taken any "effective action" to prevent the pollution.

43 As a consequence, Mrs McCallum engaged several consultants to provide expert opinions to her on the effect of the dust and the noise on her amenity and on the effect of the quarry's activities and consequential ARD on the local water quality. These opinions are discussed below.

44 During the hearing photographs taken by Mrs McCallum were admitted into evidence. The photographs depicted a cloud of dust rising from the Sandercok quarry and rust coloured sediment and white froth in various sources of water nearby the quarry.

45 Mrs McCallum was cross-examined, during which she stated that when the quarry was operated by Mr Kinnear, she only heard the quarry for approximately half an hour each day, although she conceded that she was employed at the time.

46 Under questioning, Mrs McCallum agreed that she mowed her lawn once a week to a length of about four or five inches. She also conceded that Mr Mark Longbottom, from the council, had visited her property on three occasions to inspect the dust and had concluded in a written report that the dust was not attributable to the quarry.

According to Mrs Sandercock

47 Mrs Sandercock filed two statements in the proceedings dated 17 June and 9 December 2010 respectively.

48 It was Mrs Sandercock's evidence that while the quarry's operating hours under the Kinnears were from daylight to dark seven days a week (and sometimes beyond - this was consistent with similar evidence to this effect from Mr Robert Kinnear and Mr Glasby). However, following requests by the council, the hours of operation were reduced by the Sandercocks to Monday to Friday, 7am to 5pm and Saturday, 7am to noon. The quarry no longer operates Sundays or public holidays.

49 Further, the quarry has a finite production limit and hence working life. In 1993, the quarry was expected to have a yield of 70,000m . Accordingly, on the basis of a maximum extraction of 10,000m per annum, the expected remaining life of the quarry was seven years. However, extraction has fallen below this rate. For example, since its purchase by the Sandercocks in 2000, from 2000 to 2004 a total of only 27,707.43m had been extracted. Accordingly, the quarry was still operational in 2010.

50 Mrs Sandercock stated that until the death of Mr McCallum, the Sandercocks and the McCallums had enjoyed a good relationship, with Mr McCallum a frequent visitor to the quarry. During this period, Mr McCallum had never raised any concerns in relation to the operation of the quarry.

51 However, since the death of Mr McCallum, Mrs McCallum has made numerous complaints to the Department of Primary Industries, the Regional Inspector of Mines and the council, concerning the quarry and in particular, the blasting and the noise and the dust emanating from the quarry.

52 But according to Mrs Sandercock, on average blasting occurs no more than once every 12 months. Furthermore, the Regional Inspector of Mines had confirmed that blasting procedures have been followed on all occasions.

53 At the council's request, to minimise noise emissions mufflers were fitted to the equipment in the quarry. Additional noise abatement measures have been implemented, which include the redirection of the main diesel motor muffler away from Mrs McCallum's property towards the quarry wall. A wall of carpet on the western side (the side closest to Mrs McCallum's property) of the motor of the main screening plant has been fitted, together with thick plyboard to the screen deck of the main plant. A frame to support carpet that will be fitted above the deck of the main screening plant is being constructed.

54 Also at the council's request, in 2009 an Environmental Audit, an Environmental Management Plan and an Environmental Management Report were commissioned by the Sandercocks in respect of the operation of the quarry. The reports were prepared by Total Safety Management.

55 The Environmental Audit was undertaken with particular reference to noise, dust and water quality:

(a) in relation to noise, the Audit recommended various strategies to reduce the impact of the operation of the quarry. In particular, the operator of the quarry was to fit appropriate noise suppression mats in the hopper of the screening plant and to record all complaints. The Audit stated that:

Recent noise monitoring of crushing and screening operations conducted by the Tweed Shire Council indicates that the level of noise created by this quarry operation is consistent with the noise created by the surrounding natural bushland and rural activities and therefore should not be considered a major noise generating factor.

(b) in relation to dust, the Audit noted that environmental factors played a significant role in the nature of dust emissions, and therefore, extra care should be taken during high wind events or adverse weather conditions, such as decreasing vehicle speeds and increasing the watering of roads. The Audit recommended the covering of vehicle loads, the suppression of dust generated from the crushing and screening plant using water sprays and the spraying of unsealed roads; and

(c) in relation to water quality, the Audit stated that "water control is a critical aspect within this quarry with a small creek running through the site at floor level". It recommended the following clean water strategies:

3.1 The construction of bunding which will be placed in specific areas to ensure the water run-off is controlled and directed into the sediment settlement pond.

3.2 The installation of 500mm silt fencing along low lying sections of the creek/quarry boundary.

3.3 Water run-off from the quarry site will be directed through a sediment settling pond.

3.4 Water surplus to on-site requirements will pass through a "Rock Filtration System" prior to being discharged back into the creek.

3.5 The sediment settlement pond will be cleaned at regular intervals to ensure effective operations.

3.6 Site run-off water will be utilised in operational activities. It will be pumped from the settlement ponds, when necessary, for the use in dust suppression on production requirements, stockpiles and haul roads.

56 The Environmental Management Plan noted that confirmation had been received from the power unit equipment manufacturer regarding the noise suppression equipment fitted to the quarry power unit to the effect that it was industry world best practice in terms of noise suppression. Further, the screening and crushing plant generated noise in line with all quarry operations of this type. However, the Plan stated that noise resulting from quarry material being loaded into the screening and crushing equipment could be suppressed by lining plant hoppers with industrial rubber matting. In this regard, the Plan noted that rubber matting had been purchased and its installation had commenced. The Plan stated that once completed by the end of June 2009, this would bring "this part of quarry operations up to Industry Best Practice for noise suppression."

57 The Plan noted that the loader servicing the quarry's screening and crushing equipment was relatively modern and was fitted with industry best practice noise suppression systems. The loader, however, generated dust that could be alleviated by the addition of surface lime to the ground.

58 The Plan also stated that the quarry was not equipped with any technology to measure the noise generated by the screening and crushing equipment but that the Sandercocks had requested and had received support from environmental scientists in the council in monitoring their progress with noise suppression.

59 Because quarry staff did not have the equipment or skills to quantitatively measure dust generated by the screening and crushing of rock the Plan suggested that the staff work with a local soil scientist in an attempt to gauge the effect of the application of lime to the soil surface to suppress dust.

60 The Plan also noted that the introduction of water sprinklers was reducing dust from the screening and from the loader by an estimated 75% and had been adopted as a standard operating procedure. Sprinkler technology could not, however, be introduced to the final screening equipment because it clogged the fine sieves preventing efficient material size separation. But the dust produced by this process was considered, in any event, to be "minimal".

61 In terms of minimising the acidity of the quarry runoff water, the quarry had employed the ongoing services of a qualified and experienced soil and water scientist with experience in ADR. As a result, a plan had been developed to minimise the environmental impact of the ADR. In particular, a site sump pit had been constructed to collect all quarry runoff water and associated silt. The base of the sump pit was filled with acid neutralising lime and the sump had been designed to collect, recover and dry the silt for eventual reuse. Both these processes were ongoing.

62 Finally, the Plan noted that the quarry administration officer "has a formal, referrable system of maintaining relevant records." All identified environmental risks were recorded in the quarry log, together with any relevant action taken, and all site environmental monitoring information was filed for ease of reference.

63 The Environmental Management Report stated that the quarry had implemented the measures outlined in the Environmental Management Plan. In particular, the rubber matting had been fitted and the noise levels had been subsequently monitored by Mr Longbottom, the council's Environmental Health Officer. The results of the monitoring had demonstrated a reduction in the noise levels in November 2009 (from the previous testing in February 2009). The report noted that water sprinklers had been installed and that lime was being spread on the floor of the quarry to assist with flocculation. All plant equipment was being serviced regularly. The sump pit had been constructed and lime had been added to reduce acidity. The water in the sump pit was tested regularly to monitor the pH level.

64 Photos taken by Mrs Sandercock were admitted into evidence. The photos showed the gully at the entrance of the quarry and the Rouse River after heavy rain. In each photo the water was a turbid brown muddy colour.

65 Mrs Sandercock deposed that Mrs McCallum's complaints regarding noise, the operation of the quarry outside approved hours, the spreading of lime (which was purportedly causing Mrs McCallum health problems including stomach ulcers and skin lesions) and the alleged unauthorised blasting, had all been investigated by the relevant authorities and had been determined to be unfounded.

66 Mrs Sandercock was cross-examined. The questioning revealed the following evidence, namely, that:

(a) in times of heavy rain the sump pit overflowed;

(b) no engineering plan, design or calculation had been undertaken to ensure that the sump pit adequately collected all of the runoff from the quarry;

(c) there was no design or mapping of the quarry floor to ensure that all the runoff water passed into the sump pit;

(d) the silt from the sump pit was excavated out of the pit and placed on the quarry floor. That is to say, the silt was not removed from the quarry;

(e) at their cost the Sandercocks had offered to construct a noise attenuating fence or barrier on Mrs McCallum's property but the offer had not been accepted by her;

(f) there were, contrary to the Environmental Management Plan, no records kept of any noise complaints;

(g) there was no equipment to measure wind speed at the quarry, rather any assessment as to wind strength for the purpose of dust mitigation was only undertaken visually by the Sandercocks;

(h) during periods of high wind the plant ceased operation;

(i) Mr Ron McMahon (an expert retained by the Sandercocks) was known to the Sandercocks prior to his engagement as a soil scientist because they had delivered loads of gravel to Mr McMahon for his driveway;

(j) the steps taken by the Sandercocks had merely minimised ADR and had not eliminated it;

(k) contrary to the Environmental Management Plan, no runoff water monitoring plan had been written by their consulting soil scientist (Mr McMahon), instead the pH levels of the runoff were regularly tested and were recorded by Mrs Sandercock in a diary;

(l) contrary to the Environmental Management Plan, no further formal referrable system of maintaining records had been established, other than the noting of pH testing levels in a diary;

(m) contrary to the Environmental Management Plan, no further environmental audits had been undertaken; and

(n) the quarry was the sole source of income for the Sandercocks and that they intend to continue operating it until the life of the quarry expires.

Does the Operation of the Quarry Cause "Water Pollution"?

67 Both the Sandercocks and Mrs McCallum relied on expert evidence as to the polluting effects of the operation of the quarry on the creek.

68 Mrs McCallum relied on the expert opinion of Mr Lancaster, the Manager of the Environmental Analysis Laboratory at the School of Environmental Science and Management at Southern Cross University. Mr Lancaster was engaged to assess the water and sediment quality data for the creek downstream from the quarry and to provide an opinion on the potential sources of any water contamination and degradation of the local aquatic ecosystem.

69 In his initial report, dated January 2010, Mr Lancaster opined that the creek was characterised by highly acidic pH levels, low dissolved oxygen levels, high suspended matter levels, very high sulphate levels and very high dissolved metal (iron, aluminium, manganese, copper, nickel and zinc) levels. In relation to the ANZECC and ARMCANZ 2000 guidelines , it was his opinion that the creek would be regarded as severely impacted and toxic to aquatic organisms. In Mr Lancaster's view the likely source of water contamination was the runoff from the Sandercock quarry. Similarly, he found that there was a high concentration of sulphides in the creek sediment and the likely source of this pyritic sedimentation was the erosion of the upstream Sandercock quarry.

70 Mr McMahon, the Chief Scientist and Managing Director of R and A McMahon Managing and Consulting Pty Ltd, who had particular expertise in soil analysis, was retained by the Sandercocks to provide an opinion on the impact of the activities of the quarry on the localised soil, vegetation and water in the vicinity of the quarry.

71 In preparing his report, Mr McMahon visited the quarry, Mrs McCallum's property and the surrounding area and sampled and analysed water from various locations in and around the Sandercock quarry, including upstream and downstream from the quarry. He was critical of the opinion provided by Mr Lancaster because Mr Lancaster analysed water from the pond at the base of the gully that drains from the quarry into the creek and the hill to the west of Mrs McCallum's property. That is to say, he did not consider the general effect of water flows in the quarry gully caused by drainage of the adjacent hills and the effect this had on the water quality of the pond and the creek. Furthermore, Mr Lancaster failed to identify the source of water contaminants in the pond and the creek. Rather, he assumed that the quarry operations were solely responsible for these adverse results.

72 By contrast, Mr McMahon assessed the water from the gully adjoining the quarry gully. This enabled him to more accurately determine the source of the contaminants in the gully draining into the quarry and the hill upon which Mrs McCallum's property was located. This in turn permitted him to assess the specific impact of the quarry operations on the water and isolate it from naturally occurring influences, in particular, from naturally occurring acid sulphate soils. It was his opinion that Mr Lancaster's conclusion that the Sandercock quarry was uniquely responsible for the adverse water quality of the pond and creek was incorrect.

73 Rather, according to Mr McMahon a number of sources of acid water (or ARD) were entering the gully draining into the quarry. In particular, the influence of subsoil water draining from localised catchment hills was identified by him as the major contaminant in the quarry ecosystem. This conclusion was reinforced by similar analytical results in an adjoining gully where no industrial activity was being undertaken.

74 Accordingly, it was Mr McMahon's opinion that the quarry was not having an adverse impact on the quality of the water in the gully at the base of the quarry and, in fact, the effect was positive. Further, it was his view that the quarry itself did not contribute to the sedimentation of the gully because the lime spread on the quarry floor and in the sump pit flocculated any fine particles thereby ensuring that the water flowing from the sump pit was, as he had observed during his site visit, clear.

75 A joint report prepared by both experts was relied upon by the parties. After further sampling, both experts agreed that the water in the pond at the base of the quarry contained augmented levels of acid sulphides, low levels of oxygen saturation, very high soluble aluminium, iron and sulphate levels and a low chloride to sulphate ratio that was characteristic of ARD, all of which were detrimental to aquatic life.

76 The experts could not agree, however, on the cause of these findings. Moreover, while Mr Lancaster observed a high sediment load at the base of the pond and gully downstream from the quarry, which he then extrapolated the data from to predict a high sediment load in the gully upstream closer to the quarry, Mr McMahon, after sampling the upstream gully, did not find any relevant sedimentation on the upstream gully floor.

77 Mr McMahon acknowledged the sensitive nature of the water in the Tweed Basin ecosystem where the quarry was located but noted that during dry periods or periods of prolonged drought the pH and oxygen levels would naturally fall and that iron and aluminium concentrations would increase. He also noted that on the basis of the published data, the pH of the water in the pond at the base of the quarry would be unlikely to support fish. But both experts observed the presence of tadpoles, water beetles and other aquatic fauna in the pond at the time of sampling, although no larger aquatic organisms were evident. In addition, Mr McMahon noted the healthy state of the vegetation along the entire gully system and both experts observed that the water in the sump pit was, at the time of their observations, "crystal clear".

78 Ultimately, both experts agreed that that they did not have access to "reliable, historical, detailed water analytical results from the vicinity of the Sandercock quarry prior to surface drainage and lime treatment pit improvements being commissioned." Mr Lancaster also agreed with Mr McMahon that surface drainage work undertaken by the quarry with input from the environmental scientists from the council was "a good initiative". Mr McMahon went further and opined that the drainage and lime treatment undertaken at the quarry had neutralised any runoff surface water as demonstrated in his expert report. Mr Lancaster conceded that these steps had been "somewhat successful".

79 While Mr Lancaster agreed that the water surface management at the quarry appeared to be under control and was "resulting in an overall improvement in gully water quality", he stated that a detailed analysis of the sump water should be undertaken to determine the success of the liming treatment because notwithstanding the water clarity of the sump pit, some solutes were invisible at low concentrations. Further, he expressed the view that the need for a clay lining of the sump pit should be assessed because the ground water was "likely" to have increased acidity due to percolation through quarry fractures.

80 By contrast, Mr McMahon noted that the ground water runoff from the quarry had been tested and that these tests had confirmed the success of the attempts by the Sandercocks to reduce the surface water acidity. In any event, according to Mr McMahon, his scientific testing of the gully adjacent to the quarry gully and of the Rouse River, into which the quarry gully discharged, demonstrated that the entire catchment was subject to natural ARD and that the acidity of the quarry gully was a natural occurrence, not caused by the operation of the Sandercock quarry.

81 While both experts agreed that any extractive mining activity associated with pyritic rock had the potential to expose pyrites to oxidation thereby resulting in the formation of soluble sulphuric acid, it was noted that the frequency of pyritic cores in the quarry face was indeterminate.

82 Because Mr Lancaster had only tested the water in the gully downstream from the quarry, he was not able to comment on Mr McMahon's analysis of both the surface water and the subsurface water entering the quarry drainage system. However, he agreed that Mr McMahon's analysis showed that some of the water entering the gully originated from the council's quarry, which also had elevated acid levels from both surface runoff and subsoil water flows.

83 Again, because he had not analysed it, Mr Lancaster was unable to comment on the importance of the subsurface water flows into the quarry gully. His position was to be contrasted with that of Mr McMahon, who believed that the acid subsurface water flows were very significant, particularly in the absence of any quantification by either expert of the extent of the ARD from the pyritic rock exposure in the quarry.

84 In conclusion, Mr Lancaster expressed the opinion that even though acid sulphate soils were formed naturally, the release of the acid, together with any iron and aluminium, required disturbance and was not caused by natural processes. However, he conceded that a more detailed water and sediment sampling and analysis was essential to determine the extent of the aquatic impact by the quarry activities.

85 By contrast, Mr McMahon opined that the analysis of the origin of the acid water in the quarry gully ecosystem clearly indicated that the source of the acidity was not restricted to the operation of the Sandercock quarry.

86 The experts gave concurrent oral evidence. While the evidence revealed that Mr Lancaster had more experience in acid sulphate soils than Mr McMahon, this did not diminish the weight the Court placed on Mr McMahon's evidence in light of his considerable experience as a soil scientist.

87 Under questioning, Mr Lancaster conceded that the extent to which the pyritic material being oxidised at the quarry was contributing to the detrimental water quality was unknown. But he stated that in his opinion the operation of the quarry contributed to the acidity of both the groundwater and the subsurface water seeping up from the quarry. In addition, while he accepted that there was acidity emanating from the council quarry, it was his opinion that the acidity generated from the Sandercock quarry by reason of the open face of the quarry and the impact of its activities on the surface area (allowing for surface water flow, rainwater flow and increased percolation of water through the sediment) was significant.

88 Mr McMahon, however, reiterated his view that the groundwater was already acidic and that while additional acidity was created by the operation of the quarry, it was not "material". According to Mr McMahon, the entire catchment was characterised by acid sulphates and that while the gully that runs through the quarry "is an area of concern, within this catchment there are many areas of concern" including the gully adjacent to the quarry gully.

89 In relation to the design of the sump pit, Mr McMahon agreed that no hydrological study had been undertaken by him to determine the proper location or size of the pond and that it had been constructed so that the sediment, which he did not concede was contaminated, could be removed by bucket.

90 By contrast, Mr Lancaster believed that the sediment was contaminated because of its high concentration of iron, aluminium, copper and possibility lead. Furthermore, Mr Lancaster was critical of the "ad hoc" nature of the liming process carried out by the Sandercocks (taking a bag of lime and scattering it over the floor of the quarry and into the sump pit and then measuring the pH levels of the pit water from time to time). According to Mr Lancaster, what was necessary was a calculation of the volume of water to be treated and a regular chemical analysis, not merely a measurement of the pH level, of the water. Mr Lancaster was likewise disparaging of the method by which the sediment was removed from the sump pit by the Sandercocks (by front end loader with the placement of the sediment on the quarry floor).

91 Mrs McCallum also relied on a report prepared by Ecoroc Pty Ltd for the council entitled Report on Acid Rock Drainage (ARD) Investigations and Remedial Solutions dated July 2009, in respect of the council's quarry ("the Ecoroc Report"). The Ecoroc Report presented the results of geological and geotechnical investigations at the council quarry undertaken in May and June of 2009, to locate and characterise the source and nature of any ARD and to provide remedial treatment suggestions.

92 The Ecoroc Report found that, similar to the Sandercock quarry, at the council quarry localised naturally occurring pyritic rock exposed by hard rock quarry workings was oxidized to produce sulphuric acid characterised by low pH surface water and groundwater. The Ecoroc Report found that the acid drainage was impacting on the water quality of the creek that flowed beside the quarry. The creek had its confluence with the Rous River approximately 500m downstream. This is the same creek that is the subject of these proceedings. The Report noted that the creek was also "impacted by ARD from upstream quarry workings", such "quarry workings" including the Sandercock quarry, although it noted that the Sandercock quarry was "close to depletion".

93 The Ecoroc Report did not recommend the closure of the council quarry but it did suggest various forms of remediation which included: the application of alkaline material to the base of the rock face; forming a bund wall around known ARD seepage points and the sediment dams; the monitoring of water quality in sediment ponds, including the laboratory testing of sediment pond water and the creek's receiving waters; obtaining a hydrological model for the quarry; and the extension of the sediment ponds.

94 By analogy, premised on the close physical proximity of the council's quarry to the Sandercock quarry, the similarity in the extractive activities carried out and the prevalence of pyritic rock at both quarries, Mrs McCallum submitted that if the council quarry was having a deleterious effect on the water quality of the creek, the Sandercock quarry must equally be causative of its degradation.

95 It was not in dispute that the "water" the subject of this complaint is the unnamed creek. It was also not contentious that the elevated levels of dissolved metals and sulphides in the creek constituted "any matter" for the purpose of the definition of "water pollution".

96 The real the gravamen of this claim was whether, first, this "matter" was placed in, or introduced into, the creek by the Sandercocks through the operation of the quarry, and if so, second, whether this changed the physical, chemical or biological condition of the creek.

97 Turning to the first issue, in addition to the Ecoroc Report, the evidence of both Mr McMahon and Mr Lancaster, all but compel a finding that the operation of the quarry have contributed to the degraded state of the creek. Mr McMahon conceded as much during cross-examination, although in his view the contribution was not "material".

98 Having found this, I readily accept that the extent of the contribution remains, however, unknown. In so finding, it becomes apparent that I reject the position put by Mrs McCallum that the Sandercock quarry was the sole source of the pollutants in the creek. The limited scope of the testing and analysis of the water downstream from the quarry performed by Mr Lancaster does not permit the Court to reach this conclusion. As Mr Lancaster conceded in cross-examination, with whom Mr McMahon agreed, more historical data and more comprehensive water and sediment testing and analysis was necessary to properly assess and demonstrate the causal effects of the activities of the quarry on the water quality of the creek.

99 Rather, I accept the evidence of Mr McMahon that the elevated levels of dissolved metals and sulphides detected in the creek originate from a number of different sources, some referrable to the activities of the quarries located nearby (that is to say, not just the Sandercock quarry) and some referrable to naturally occurring mechanisms producing ARD, due to the general presence of pyritic rock throughout the immediate ecosystem.

100 But is this finding sufficient to prove that the Sandercocks have caused "water pollution" in breach of the Act? Some initial observations must be made prior to answering this question.

101 First, it is not the case, as was suggested by the Sandercocks, that Mrs McCallum must prove that the Sandercock quarry is the only, or even the principal, source of the creek's pollution. No construction of the definition of "water pollution" would warrant such a conclusion.

102 Second, the definition of "water pollution" encompasses both direct ("placing in or on") and indirect ("introducing into or on") modalities of pollution. Accordingly, that pollution resulted from the activities of the quarry, for example from the blasting, winning, crushing and screening of the rock, and not from any direct act or omission by the Sandercocks does not matter.

103 Third, that the creek was already compromised, either as a consequence of water emanating from other quarries or from the natural occurrence of the water passing over pyritic rock in the surrounding hills and gullies, equally does not matter if the result of the operation of the quarry was to change the physical, chemical or biological condition of the creek. If this causal change occurred, then "water pollution" resulted.

104 Regrettably, neither Mr Lancaster nor Mr McMahon squarely dealt with the question of whether the operation of the quarry changed the physical, chemical or biological condition of the creek water. It was therefore left to the Court to draw whatever inferences were available on the evidence before it to determine this issue.

105 In addition, neither party assisted the Court with the proper construction of the definition of "water pollution" contained in the Act. There is no definition of the phrase "is changed" in the legislation. But the width of the definition of "water pollution" militates in favour of a generous interpretation afforded to the phrase, which is, moreover, consonant with the scope, purpose and objects of the Act.

106 The Oxford English Dictionary (on-line ed) defines "changed" as "that has undergone change; made other than it was; altered". The definition in the Macquarie Dictionary (on-line ed) is similar, namely, "to make different; alter in condition, appearance, etc". In the latter, the word "alter" is defined to mean "to make different in some particular; modify". A relevantly equivalent definition is given to that word in the former dictionary.

107 Based on the available expert evidence, I am prepared to find, on the balance of probabilities, that the activities of the quarry contributed, in the sense of adding, to the levels of soluble metals and acid sulphates in the waters of the creek. In this sense, at the very least the chemical, and probably the physical, condition of the creek was "changed" thereby resulting in "water pollution".

108 The evidence that the activities of the quarry have altered the biological condition of the creek is, however, entirely equivocal. On the one hand, both experts observed the presence of tadpoles, water beetles and other aquatic fauna and Mr McMahon noted the healthy nature of the vegetation along the entire quarry gully system. On the other hand, Mr McMahon opined that the water in the pond at the base of the quarry would be unlikely to support fish. Given this conflicting evidence, absence more concrete scientific data I cannot find that the operation of the quarry has "changed" the biological condition of the creek.

109 But a finding that the Sandercocks have caused "water pollution" through the activities of the quarry does not, of itself, equate to a finding that the Act has been breached or is about to be breached, thereby enlivening the powers contained in ss 252 or 253 of the Act. Not only do I reject such a submission, in my opinion, even if the Act had been breached or there was the apprehension of a breach, I would, in any event, decline to afford Mrs McCallum any relief on discretionary grounds.

110 The bases upon which it is alleged that the Sandercocks have breached, or will breach, the Act are contraventions of ss 116 or 120 of the Act.

111 Turning first to s 116, in my opinion, Mrs McCallum has failed to demonstrate that the Sandercocks have "wilfully or negligently" caused the substances giving rise to the water pollution to "leak, spill or otherwise escape".

112 This is not to ignore the evidence concerning the inadequately designed and constructed sump pit that, during periods of heavy rain, overflows and is unable to accommodate the runoff from the quarry floor. But that evidence does not permit the conclusion to be drawn that any runoff or overflow resulting in pollutants spilling or escaping into the creek was caused "wilfully or negligently" by the Sandercocks. On the contrary, the Sandercocks engaged Total Safety Management to undertake an Environmental Management Plan, Report and Audit to advise them in respect of the noise, dust and water runoff emanating from the quarry. The Sandercocks also employed the ongoing services of Mr McMahon to develop a plan to minimise the environmental impact of the ARD. As a consequence the sump pit was constructed and lime was spread on the quarry floor and in the sump pit in order to neutralise any acidity. The pH levels of the sump pit were regularly tested and recorded in a diary. While reasonable minds may differ as to the adequacy of the measures the Sandercocks implemented to avoid water pollution, the acts or omissions of the Sandercocks in causing the pollutants to spill or escape can in no way be described as wilful or negligent.

113 There is, additionally, no proof whatsoever, as required by s 116 of the Act, that the spilt or escaped substances have harmed, or are likely to harm, the environment. While the experts may have tangentially speculated as to the adverse consequences of the degradation of the creek, neither were, in my view, qualified to give such evidence and, in any event, neither actually opined as to the harmful effects of the water pollution on the environment to an extent that would permit the Court to make any conclusive finding in this regard.

114 Even if there was cogent evidence of the harmful effects of the elevated levels of metals and acid sulphates in the water on the environment, an additional difficulty facing Mrs McCallum is, given the already compromised nature of the waters flowing into the creek, the absence of any demonstrated causal link between the pollutants originating from the Sandercock quarry and the harm suffered to the environment. While the Ecoroc Report detailed the likelihood of harm to the creek caused by the operation of the council quarry, this opinion was expressed in respect of a different, albeit geographically proximate, quarry and I would not be prepared to make an inference by analogy that the Sandercock quarry had an equivalent detrimental impact absent proper expert analysis.

115 Mrs McCallum submits that even if no past breach of s 116 can be established, it is sufficient for the purposes of engaging either ss 252 or 253 of the Act that a future, apprehended or threatened breach of s 116 occurs (see ss 252(6) and 253(1) of the Act). While this submission is undoubtedly correct, again she has failed to discharge her evidentiary onus insofar as she has not demonstrated that any future or anticipated contravention of s 116 will be negligently or wilfully committed.

116 I do, however, find that there has been a breach of s 120 of the Act.

117 So much so is inherent in my earlier finding that the Sandercocks have caused "water pollution" as a consequence of the operation of the quarry. This is because unlike s 116, s 120 creates an offence founded upon strict liability. Thus the only element contained within the provision is whether or not a person has polluted waters or has engaged in "water pollution"; once this has been demonstrated, breach is foregone irrespective of whether or not a criminal offence has been committed ( Meriton Apartments Pty Ltd v Sydney Water Corporation [2004] NSWLEC 699; (2004) 138 LGERA 383 at [15] and Blue Mountains Conservation Society Inc v Delta Electricity (No 3) [2011] NSWLEC 145 at [27]-[44]).

118 That a breach of s 120 creates a criminal offence does not, of course, mean that Mrs McCallum must prove a breach of that provision to the criminal standard. Because these are civil enforcement proceedings, the civil standard applies ( Director-General, Department of Environment, Climate Change and Water v Venn [2011] NSWLEC 118 at [23] and [32]).

119 The logical corollary, therefore, of having successfully proven that the operation of the Sandercock quarry resulted in "water pollution" (and therefore the "pollution of waters", which shares an identical statutory definition in the Dictionary to the Act), is a finding that the Sandercocks have breached s 120 of the Act. Moreover, because, as Mrs Sandercock stated, it is the intention of the Sandercocks to continue operating the quarry until the rock is exhausted, it follows that the breach of s 120 is likely to be a continuing one.

Appropriate Relief For the Past and Continuing Breach of s 120 of the Act

120 As stated above, however, notwithstanding that a breach of the Act has been established, in my opinion, Mrs McCallum is nevertheless precluded from a grant of relief by way of restraint under either ss 252 or 253 of the Act.

121 First, in relation to s 253 of the Act, Mrs McCallum must, in order to enliven the power to grant relief contained in that provision, demonstrate that the breach or threatened breach is causing or is likely to cause harm to the environment. For the reasons given above, she has failed to do so and the section cannot be engaged.

122 Second, even it were, I would not, in any event, as an exercise of my discretion grant Mrs McCallum the relief she seeks. That relief is the temporary or permanent closure of the quarry, although, at the hearing Mrs McCallum countenanced, as an alternative, the imposition of orders by the Court requiring the Sandercocks to implement remedial measures to alleviate the water pollution.

123 The Sandercocks opposed the first category of relief but were willing to entertain the construction of a second sump pit and the removal of the material excavated from the sump pit off-site, if required to do so.

124 In my opinion, it would not be appropriate to in any way restrain the operation of the quarry to remedy the actual or anticipated breach of s 120 of the Act for the following reasons:

(a) first, the evidence does not establish that there has been anything approaching a significant breach of the Act that would warrant the Sandercocks being restrained from operating the quarry (cf Venn at [288] and the authorities referred to thereat);

(b) second, a similar conclusion may be reached with respect to the Sandercocks' continuing use of the quarry giving rise to any anticipated breach of s 120 of the Act;

(c) third, the fact that the Sandercock quarry is but one of several factors - which include, for example, the endemic prevalence of acid rock throughout the locality and the existence of other quarries - resulting in the creek's degraded state cannot be ignored. Similarly, the fact that the extent to which the quarry has contributed to the pollution of the waters of the creek is unknown. While I do not accept that the contribution is as immaterial as Mr McMahon suggested, I nevertheless reject, on the available evidence, that the benefit to the creek could justify the hardship any restraint on the operation of the quarry would have on the Sandercocks;

(d) fourth, I note in this regard that the quarry is the sole source of income for the Sandercocks, who have been operating it since 1998;

(e) fifth, the life expectancy of the quarry is limited. Although it has exceeded its estimated remaining life of seven years based on a maximum extraction of 10,000m per annum in 1993, as the Ecoroc Report noted its future operational capacity is anticipated to be short term;

(f) sixth, both the council and the Department of Environment and Climate Change ("DECC") have investigated Mrs McCallum's noise, water and air pollution complaints concerning the quarry and have not recommended the quarry's closure, either temporarily or permanently. Furthermore, both the council and DECC appeared to be satisfied with the Sandercocks' response to the requested changes in operating procedure in order to ameliorate the noise, air and water disturbances caused by the quarry; and

(g) seventh, measures have been implemented by the Sandercocks to minimise the ARD from the quarry. These measures have included the preparation of the Environmental Management Plan, Audit and Report, the engagement of Mr McMahon for expert advice, the construction of the sump pit, the spreading of lime to neutralise the sulphuric acid and the regular testing of the water in the sump pit. I emphatically reject, as Mrs McCallum submitted, that the Sandercocks have operated the quarry in a cavalier manner with respect to their environment obligations as epitomised by "the principle, ' we have existing use rights...if you are not happy, you stop us '". Such a characterisation is, on the evidence before the Court, both unfair and, in my view, entirely incorrect.

125 Having noted this, however, I accept the submissions of both parties that absent restraint, there are nevertheless additional measures that the Sandercocks can implement to further reduce the deleterious impact of the quarry's activities on the creek. In particular, and as proffered by the Sandercocks, a second sump pit ought to be properly designed and constructed to capture any runoff from the quarry not caught by the first sump pit and the sediment from both sump pits should be extracted and removed off site to a place approved to receive and dispose of it.

Is "Air Pollution" Caused by Dust Emanating from the Quarry?

126 Mrs McCallum relied upon the expert opinion of Mr Greg Jones of HMC Environment Consulting Pty Ltd to submit that the dust deposited on her property gave rise to "air pollution" as that term is defined under the Act. The Sandercocks relied upon the expertise of Mr McMahon.

127 In reports dated June 2008 and September 2009, Mr Jones opined that over the course of two periods (the first for 29 days from 10 April to 8 May 2008 and the second from 29 May to 27 June 2008), dust samples were collected from Mrs McCallum's property that established that the stated limits for maximum dust concentration levels were exceeded by 15.6 g/m /month for the first period and by 2.2 g/m /month for the second period.

128 Mr Jones noted that based on dust deposition results from the gauge installed in Mrs McCallum's yard, the dust emanated from the direction of the Sandercock quarry, at times when the machinery was operating with the wind blowing predominantly from the east to south east.

129 Mr Jones stated, however, that notwithstanding the exceeded limits for dust particulates, because no site inspection of the quarry was undertaken by him, he was not able to comment upon whether or not the plant and equipment at the quarry was maintained or operated in a proper and efficient manner or condition.

130 Mr Jones described what he considered to be industry best practice in dust mitigation control. These measures include the use of sprays at transfer points and belts to suppress dust particles, minimising discharge heights and conveyor speeds, the enclosure of stockpiles and the creation of wind breaks. Given that the prescribed levels of dust deposition had been exceeded, Mr Jones concluded that the quarry operations had not been carried out to best practice principles or in an efficient manner.

131 Finally, while Mr Jones observed dust deposited inside Mrs McCallum's home, he was not able to comment upon whether or not there had been any damage to the vegetation on Mrs McCallum's property due to the dust deposition.

132 In his report dated 7 June 2010, Mr McMahon stated that dust was not visible when he visited Mrs McCallum's property despite the quarry operating at full capacity. In his opinion, it could not be concluded that the operation of the quarry was causing excessive levels of dust to be deposited on Mrs McCallum's property.

133 The joint report of Mr McMahon and Mr Jones dated 7 October 2010 did no more than restate the separate and distinct positions of the two experts.

134 In his report dated 6 December 2010, Mr McMahon expressed the following further opinions:

(a) first, there was no scientific evidence to establish that the dust collected by Mr Jones came from the Sandercock quarry. There was nothing to suggest that the dust could not have originated from the council quarry located nearby that was operating at the time the dust was collected;

(b) second, an analysis of the wind directions during the two periods of dust collection did not support the conclusion that the dust was caused by the operation of the Sandercock quarry;

(c) third, another source of the collected dust could have been Mrs McCallum mowing her lawn, which, as she stated, she did every week;

(c) fourth, there was no scientific evidence to support the claim that dust from the Sandercock quarry had damaged the vegetation on Mrs McCallum's property or degraded the soil; and

(d) fifth, there was no evidence to support the statement by Mr Jones that the quarry was not maintained and operated in an efficient manner.

135 Both experts were cross-examined, during which they conceded that the source of the dust collected by Mr Jones had not been, although it was scientifically possible, identified. Mr McMahon additionally conceded that the only evidence he had for concluding that a source of the dust was the council quarry, was based on the prevailing winds during the collection periods and that in the absence of wind blowing from the council quarry it was unlikely dust from that quarry would settle on Mrs McCallum's property.

136 The Sandercocks also relied upon documentary material from the council to the effect that Mrs McCallum's complaints in respect of the dust had been investigated and dismissed by the council.

137 On the material before the Court there is no basis, in my opinion, for concluding that the Sandercocks have breached or will breach either ss 124 or 126 of the Act in respect of the dust emanating from their quarry.

138 First, although there can be no doubt, as the photographic evidence made tolerably clear, that the quarry workings emit dust, which given the expansive definition of "air impurity" in the Act constitutes "air pollution", there is no cogent basis for finding that the dust collected on Mrs McCallum's property emanated from the Sandercock quarry, or even if it did, for determining what proportion of the dust deposited originated from that source and whether that proportion exceeded the limits referred to by Mr Jones in his expert report.

139 Second, there is no evidence whatsoever that the dust complained of was caused by the Sandercocks' failure to maintain and operate the plant and equipment located at the quarry, or to deal with "materials", in a proper and efficient manner. Any suggestion by Mr Jones to this effect is entirely speculative in the absence of any inspection of the quarry or its equipment by him.

140 True it is that no equipment to measure wind speed has been installed at the quarry to assist with dust mitigation, but it was the evidence of Mrs Sandercock that during periods of high wind the plant ceases to operate in any event.

141 Further, the Environmental Management Report noted that its recommendations with respect to dust emission mitigation had been implemented, with water sprays and sprinklers installed in the quarry and the spreading of lime to assist with the flocculation of dust particulates. Furthermore, the Environmental Management Plan had earlier noted that sprinkler technology could not be introduced to the final screening equipment because it clogged the fine sieves preventing material separation.

142 Even if a past or future breach of ss 124 and 126 of the Act were established by Mrs McCallum, I would nevertheless, as a matter of discretion, decline to afford her relief. In this regard I repeat the discretionary factors referred to above under "water pollution" and additionally rely upon the following matters:

(a) first, the quarry had been in operation for over 35 years prior to Mrs McCallum commencing the proceedings. Its existence pre-dates the ownership by Mrs McCallum of her property. That is to say, Mrs McCallum bought the property and constructed her residence upon it with full knowledge that a working quarry was adjacent to it. It may be inferred that throughout this period the quarry emitted dust, however, no complaint was made by Mrs McCallum until 2006 concerning the dust and noise emanating from the quarry. If pressed, I would be inclined to infer that due to recent restrictions placed upon the hours of operation of the Sandercock quarry by the council (when the quarry was owned and operated by the Kinnears it operated from dawn to dusk seven days a week), the quarry currently emits less dust and noise than it did in the past; and

(b) second, steps, which in my view are both genuine and adequate, have been taken by the Sandercocks to minimise the quarry's dust emissions.

Is "Noise Pollution" Caused by the Operation of the Quarry?

143 Mrs McCallum engaged Mr Craig Hill, an acoustic consultant, to advise her on the noise levels generated by the quarry. Three reports were provided by him, dated 27 July 2007, 29 September 2009 and 4 June 2010.

144 A separate expert's report was not prepared by the acoustic engineer engaged by the Sandercocks, Dr Robert Bullen. Rather, Dr Bullen participated in a joint expert conclave with Mr Hill on 27 October 2010.

145 The conclave produced substantial agreement between the two acoustic experts. In particular, it was agreed that the noise created by the operations of the quarry exceeded the acceptable limit of 38 dBA pursuant to the EPA Noise Policy, although there was variation as to the extent of excess, with the highest reliable estimate of noise from the quarry on any given day measuring 55 dBA and a "more typical" level being 53 dBA. It was Dr Bullen's evidence that the lower level was the appropriate level to be adopted in determining mitigation measures, whereas Mr Hill was of the opinion that the upper level measurement ought to be adopted for the purpose of attenuation.

146 The experts agreed that the principal source of noise at the quarry was the operation of the fixed plant, namely, the crusher, the screen and the associated conveyors. However, noise also emanated from the moveable plant, namely, the front end loader and the equipment to win the rock from the face. The experts noted that blasting occurred infrequently and could therefore be ignored for present purposes.

147 In relation to attenuation, the experts agreed that an acceptable noise level could be achieved in relation to the won rock transported to the crusher by the front end loader by a combination of additional screening around the fixed plant and a 3m high fence located at the top of the ridge adjacent to Mrs McCallum's residence and as close as possible to her property boundary.

148 Alternatively, if a rock hammer or similar equipment was used to win rock directly from the quarry face, then noise control would be more difficult and would need to include local screening around the hammer in addition to the other measures discussed above. A detailed design would be required for the shield.

149 Both experts stated that on site testing and monitoring was needed to confirm the efficacy of any attenuation.

150 The experts were cross-examined. Relevantly, Dr Bullen agreed that the building of a fence or barrier on Mrs McCallum's property was practical and would achieve a 10 dBA reduction in the noise level.

151 Dr Bullen also stated, with whom Mr Hill agreed, that in his view the carpet installed by the Sandercocks would have achieved some level of noise diminution but was not sufficient to achieve what was necessary. Further, Dr Bullen stated that although he had not inspected the mufflers on the equipment thoroughly, they were typical for that type of equipment, albeit not consistent with industry best practice in terms of the residential class mufflers installed on new equipment.

152 Both parties relied on a letter dated 21 July 2010 from the Sandercocks' solicitor, Russell J Baxter, repeating the "open offer of 25 February" that the Sandercocks would "at the first available opportunity construct a fence/noise barrier at their costs." The barrier would be constructed as near to the common boundary as possible on the top of the escarpment adjacent to Mrs McCallum's house. The offer was to remain open for 28 days from the date of the letter. A quote in the amount of $7597.70 for the construction of the fence was attached to the letter.

153 The offer was not accepted by Mrs McCallum, and therefore the fence was not constructed, because to do so required the consent of Mrs McCallum to enable the Sandercocks to enter her property.

154 The offer was repeated during the hearing by the Sandercocks.

155 For reasons that will become apparent, Mrs McCallum's failure to avail herself of this offer is unfortunate.

156 Based on the expert acoustic evidence and the evidence from Mrs McCallum as to the effect of the noise generated by the quarry on her amenity, I have no hesitation in finding that the quarry emits "offensive noise" as that composite term is defined in the Act, and therefore, causes "noise pollution".

157 But a finding that the quarry emits offensive noise and causes noise pollution is not sufficient to ground relief under either ss 252 or 253 of the Act. What must be established by Mrs McCallum is either that the noise pollution has been caused by the Sandercocks' failure to maintain or operate the plant or equipment in an efficient condition or in proper and efficient manner (s 139), or their failure to deal with "materials" in or on the quarry in a proper or efficient manner (s 140).

158 No criteria is set in the Act for what constitutes an "efficient condition" or a "proper and efficient manner". Again, this is no doubt a subject on which reasonable minds may differ, although, I reject any submission that adherence to industry best practice is necessary.

159 Having inspected the quarry it is obvious that the plant and equipment is not new. But neither ss 139 nor 140 mandate that the quarry operate only with new equipment. Provided the plant and machinery on site are operated efficiently and properly, and materials are similarly handled, neither section is infringed and ss 252 and 253 are not engaged.

160 The evidence before the Court established that measures have been implemented by the Sandercocks to reduce the noise emanating from the quarry. These measures include:

(a) the fitting of noise emission mufflers to the equipment;

(b) the repositioning of the main diesel motor muffler away from Mrs McCallum's property towards the quarry wall;

(c) the fitting of a wall of carpet on the side of the motor closest to Mrs McCallum's property, together with thick plyboard to the screen deck on the main plant;

(d) the construction of a carpet frame to be fitted above the main deck of the screening plant;

(e) the fitting of rubber industrial noise suppression mats to the hopper of the screening plant; and

(f) the installation of rubber mats in all feeder bins for the screens and the crusher.

161 While debate took place at the hearing as to whether or not the noise suppression equipment fitted to the power unit and the installation of the rubber mats constituted an industry "world best practice", it cannot be seriously suggested that upon the implementation of these measures (that were to be completed by the end of June 2009) the plant was not being operated or maintained in a proper and efficient condition or manner. Similarly, it could not be maintained that the dealing with materials at the quarry was not proper or efficient. Again, while it is arguable whether or not this attenuation would bring "this part of the quarry operations up to Industry Best Practice for noise suppression" that is not what is mandated by the provisions relied upon by Mrs McCallum, particularly when consideration is given to the fact that, as the Environmental Management Plan noted and as I accept, this quarry produces noise in line with all quarry operations of this type.

162 I therefore find on the evidence before the Court that neither the noise pollution emanating from the quarry has breached ss 139 or 140 nor that it will cause a threatened, apprehended or anticipated breach of those provisions. I reach this conclusion notwithstanding the evidence from the Sandercocks and the noise experts that there is currently no on site noise level monitoring program. In my opinion, this is insufficient to constitute a breach of these provisions.

163 However, even if this view has been erroneously formed, I would nevertheless decline to exercise my discretion to restrain the quarry. The reasons why have been given above in respect of air and water pollution. They remain equally apposite to the complaint of noise pollution. In addition, I reiterate the fact that the existence of the quarry, with its attendant noise, predated the purchase by Mrs McCallum of her property and the construction of her residence. The quarry generated noise then as it does now. This is because, to put it in overly trite terms, noise is an inherent aspect of its operation.

164 There is, moreover, nothing to suggest that the Sandercocks' operation of the quarry has increased the noise levels associated with its activities. The evidence is to the contrary to the extent that, apart from the noise attenuation effected, the quarry now operates for shorter periods of time than it previously did and blasting only takes place approximately once a year.

165 The most that the Court would be prepared to entertain by way of remedial relief would be the construction of a 3m timber lapped and capped noise barrier on the top of the ridge above the quarry on the boundary of Mrs McCallum's property. But this would require Mrs McCallum giving consent to the Sandercocks to enter onto her property in order to construct the fence, an order that the Court would be loathe to make in light of the reluctance of Mrs McCallum to date to grant this permission.

Costs

166 These proceedings have been brought in Class 4 of the Court's jurisdiction where costs generally follow the event. Mrs McCallum has enjoyed only limited success in their pursuit. A costs order wholly in her favour would therefore appear not to be appropriate. In these circumstances, the parties are to be afforded an opportunity to make further submissions to the Court as to what would be an appropriate costs order.

Orders

167 The Court makes the following orders:

1. within seven days the parties are directed to bring in short minutes of order giving effect to the reasons contained in this judgment;

2. the costs of the proceedings are reserved. The proceedings are stood over to a date to be fixed within seven days to determine any disputed questions of costs; and

 

3. liberty to apply generally on two days notice.

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Decision last updated: 11 October 2011