Department of Environment & Resource Management v Clark. Country/Territory Australia Type of court Others Date Mar 3, 2011 Source UNEP, InforMEA Court name Planning and Environment Court of Queensland Seat of court Southport Judge Wall, Q.C. Language English Subject Air & atmosphere, Environment gen. Keyword Air quality/air pollution Abstract The Respondent owned land situated at 22 Rudman Parade, Burleigh Heads (Site). The majority of the Site was unsealed and un-vegetated. He leased this Site out to other persons for the purpose of carrying out various environmentally relevant activities including, operating a waste transfer station, crushing concrete, screening material extracted from the earth, and stockpiling sand, soil and gravel. He was at all material times responsible for the environmental management of any activities carried out on the Sites ‘common areas, including traffic movement along shared internal access roads and the release of stormwater runoff from the common areas of the Site. From September 2003 through to July 2011, the Applicant had been receiving complaints from various members of the public and neighbouring businesses about dust emissions coming from the Site. This included dust being blown from the Site to neighbouring areas, dust being blown by vehicles driving over unsealed areas of the Site and dirt being deposited on Rudman Parade by vehicles after existing the Site which then turned to dust as other vehicles drove over it. It was argued that the Respondent, by allowing these activities to occur, was causing an environmental nuisance pursuant to section 15 (Environmental nuisance) of the EPA. The persistent refusal by the Respondent to take any steps to prevent the escape of dust or dust generating from the Site, and to remove the mud and dirt from Rudman Parade, led to environmental protection orders (EPO) being issued by the Applicant, pursuant to section 358 (When order may be issued) of the EPA. These were issued on 26 September 2003, 15 August 2008 and 14 October 2008. The EPOs ordered the Respondent to stop and remedy the activities which were causing the environmental nuisance, namely the movement of traffic along the unsealed common areas of the Site. In each of those instances, the Respondent paid the fines attached to the EPOs, but continued to ignore the notices imposed under them and persisted with the usual management of the Site. In May 2009, the Applicant applied to the Planning and Environment Court to seek orders to stop vehicles traversing over the common unsealed areas of the Site until those areas had been sealed and further orders that the Respondent install and operate a vehicle wheel wash. The Applicant contended that the Respondents continual dismissal of the EPOs issued to him amounted to an offence pursuant to section 361 (Offence not to comply with order) of the EPA. This provision carried a maximum fine of $165,000 for a contravention of an EPO and a maximum fine of $200,000 or 2 years imprisonment if a person ‘wilfully contravened an EPO. To act wilfully in defying an EPO was defined in schedule 4 (Dictionary) of the EPA to mean to act ‘intentionally, recklessly or with gross negligence. The Applicant also contended that the Respondent had committed and would continue to commit offences against the EPA, pursuant to section 440 (Offence of causing environmental nuisance) of the EPA, unless he was restrained. The Judge agreed with the Applicant that the roads on the Site should be sealed and a vehicle wheel wash should be installed. He was satisfied that the Respondent had committed offences against the EPA and would continue to do so unless he was ordered otherwise. His Honour went on to say that until these practices had been remedied, the Respondent should be ordered to stop or prevent vehicles traversing the common areas of the Site. In his judgment, he also made note of the Respondents general lack of care for the environment and the damage he had been causing to it and to other members of the public. This was evident in the Respondents conduct towards the Applicants environmental officers and his general behaviour and attitude towards the claims made against him. The application was upheld. Full text COU-156792.pdf