South Sister St. Marys, Tasmania

South Sister

tribunal decision to proceed to hearing

File No:A8/2005 J 64/2005

s 48 EMPCA - forestry operations - whether capable of constituting a contravention of EMPCA

BETWEEN

Environmental Defenders Office
Obo J Weston and Others

Appellants

AND

Forestry Tasmania

Respondent

This is the determination of a preliminary issue arising in proceedings pursuant to s 48 of the Environmental Management and Pollution Control Act 1994, for the restraint of forestry operations in a coupe at South Sister.

Submissions were made and responded to in writing.

DECISION

1. Application was made to the Tribunal pursuant to section 48 of the Environmental Management and Pollution Control Act 1994 ("the Act") for both temporary and permanent orders restraining the respondent from carrying out forestry operations, including both road making and the harvesting of timber, at a coupe at South Sister. The Tribunal declined for the reasons set out in decision J51/2005 to make temporary orders, but issued a summons and set the application down for hearing. Pursuant to leave, the parties made submissions in writing with respect to the issues raised in this decision.

2. The grounds upon which the application was made were the subject of an application to amend, which was not consented to but no submissions were made in opposition to the amendments sought. The amendments sought are set out in the document filed with the Tribunal and entitled "Grounds of Application" with the note 'as amended 16 March 2005'. The Tribunal considers that subject to the subsequently identified exceptions, the amendments raise matters which are properly the subject of the proceedings, and those amendments are made.

3. The substance of the grounds of the application as amended, was to allege a range of intended conduct by the respondent or its servants and agents, in contravention of the Act. That conduct was as follows.

4.First, that in contravention of section 53(2) of the Act, the proposed forestry operations would "emit soil and vibrations" on or from the coupe. It was alleged the forestry operations would result in soil erosion due to increases in the volume and velocity, and changes in the direction, of surface water run-off. It was further alleged that the emission of soil from the coupe would result in a diminution of water yield from a water catchment area used by the applicants. It was further alleged that the emission of soil and vibration from the coupe would result in loss of land stability and significantly increase the potential for subsidence and landslips in the vicinity. These consequences were alleged to potentially adversely affect the applicants' ability to use and enjoy their property and cause an unreasonable interference with the applicants' enjoyment of the environment.

5. Secondly, that in contravention of section 51(2) of the Act, the conduct of forestry operations by the respondent would disturb or cause the disturbance of soil and emit or cause the emission of vibrations. It was alleged the disturbance of the soil combined with the increased run-off, would disrupt the groundwater recharge and transmission process by blocking intake channels; and further, that the emission of vibration would disturb subsurface geohydrological linkages. It was alleged these matters would result in a diminution of water yield within the catchment, and consequent diminution of and contamination of water used by downstream consumers including the applicants. It was further alleged that increased water run-off resulting from the forestry operations would increase the subsurface moisture content, increasing vulnerability of slopes in the vicinity to landslides. It was further alleged the disturbance of soil and emission of vibration would have a similar result.

6. Thirdly, that in carrying out the forestry operations the respondent was acting recklessly and with the knowledge that material environmental harm may result, in contravention of section 51(1) of the Act.

7. Fourthly, that in contravention of section 50(2) of the Act, the conduct of the forestry operations would disturb or cause the disturbance of soil and emit vibration, resulting in a reduction of water flows to the catchment and stream siltation.

8. The presently material parts of the relevant provisions of the Act are as follows.

"3(1) environment" means components of the earth, including –
1. land, air and water; and
2. any organic matter and inorganic matter and any living organism; and
3. human-made or modified structures and areas -
  and includes interacting natural ecosystems that include components referred to in paragraph (a) or (b);
"environmental nuisance" means –
1. the emission of a pollutant that unreasonably interferes with, or is likely to unreasonably interfere with, a person's enjoyment of the environment; and
2. any emission specified in an environment protection policy to be an environmental nuisance;
"pollutant" includes –
1. a gas, liquid or solid; or
2. an odour; or
3. an organism (whether alive or dead), including a virus; or
4. energy, including noise, radioactivity and electromagnetic radiation; or
5. a combination of pollutants –
  that may cause environmental harm;
"pollute" means –
1. discharge, emit, deposit or disturb pollutants; or
2. cause or fail to prevent the discharge, emission, depositing, disturbance or escape of pollutants;
5. Environmental harm
- 1. For the purposes of this Act, environmental harm is any adverse effect on the environment (of whatever degree or duration) and includes an environmental nuisance.
- 2. For the purposes of this Act, the following provisions are to be applied in determining whether environmental harm is material environmental harm or serious environmental harm:
- - a. environmental harm is to be treated as serious environmental harm if –
  - 1. it involves an actual adverse effect on the health or safety of human beings that is of a high impact or on a wide scale; or
    2. it involves an actual adverse effect on the environment that is of a high impact or on a wide scale; or
    3. it results in actual loss or property damage of an amount, or amounts in aggregate, exceeding ten times the threshold amount;
  - b. environmental harm is to be treated as material environmental harm if –
  - 1. it consists of an environmental nuisance of a high impact or on a wide scale; or
    2. it involves an actual adverse effect on the health or safety of human beings that is not negligible; or
    3. it involves an actual adverse effect on the environment that is not negligible; or
    4. it results in actual loss or property damage of an amount, or amounts in aggregate, exceeding the threshold amount.
- 3. For the purposes of subsection (2), "loss" includes the reasonable costs and expenses that would be incurred in taking all reasonable and practicable measures to prevent or mitigate the environmental harm and to make good resulting environmental damage.
- 4. For the purposes of subsection (2), "threshold amount" means $5 000, or if a greater amount is prescribed by regulation, that amount.
- 5. For the purposes of this Act, environmental harm is caused by pollution –
- 1. whether the harm is a direct or indirect result of the pollution; and
  2. whether the harm results from the pollution alone or from the combined effects of the pollution and other factors.
48 Civil enforcement proceedings
- 1. Where –
- 1. a person has engaged, is engaging or is proposing to engage in conduct in contravention of this Act; or
  2. a person has refused or failed, is refusing or failing or is proposing to refuse or fail to take any action required by this Act; or
  3. a person has caused environmental harm by contravention of this Act, any other Act or the repealed Act –
    the Director, a council or a person who has, in the opinion of the Appeal Tribunal, a proper interest in the subject matter may apply to the Appeal Tribunal for an order under this section.
50. Offences of causing serious environmental harm
1. A person who causes serious environmental harm by polluting the environment intentionally or recklessly and with the knowledge that serious environmental harm will or might result is guilty of an offence.
2. A person who causes serious environmental harm by polluting the environment is guilty of an offence.
51. Offences of causing material environmental harm
1. A person who causes material environmental harm by polluting the environment intentionally or recklessly and with the knowledge that material environmental harm will or might result is guilty of an offence.
2. A person who causes material environmental harm bypolluting the environment is guilty of an offence.
53. Offence of causing environmental nuisance
1. A person who wilfully and unlawfully causes an environmental nuisance is guilty of an offence.
2. A person who unlawfully causes an environmental nuisance is guilty of an offence.

9. The first specific allegation of a contravention in the amended grounds of the application, is paragraph 5 alleging that the respondent proposes to engage in conduct in contravention of section 53(2) of the Act.

10. An environmental nuisance referred to in section 53 necessarily involves the "emission" of a pollutant. The Act distinguishes in its relevant provisions, between emission of a pollutant and other modes of activation; see in particular the above definition of "pollute" which refers to the discharge, deposit, emission or disturbance of a pollutant. Accordingly it seems likely that the proper construction of the Act is that the causing of an environmental nuisance under section 53 is limited to the emission of a pollutant as opposed to the disturbance of a pollutant. On that basis, the disturbance of the surface of the ground involved in road making and timber harvesting, could result in disturbance of the soil particles. Those particles could constitute "a solid" pollutant which if washed into the water systems, would fall within the definition of "pollute"; but their disturbance would not constitute an "emission" and therefore not an environmental nuisance.

11. The provisions of subsection 5(5) of the Act do not appear to make any difference to the latter conclusion, as they do not override the requirement for an "emission".

12. Vibrations could however be "emitted", and could therefore fall within the definition of an environmental nuisance.

13. Accordingly, other than as to the possibility that vibrations might constitute an environmental nuisance, the particulars relating to an environmental nuisance under ground 5, are not capable of relating to that offence.

14. Paragraph 5 of the grounds of application is therefore valid only insofar as it alleges vibrations and their consequences. It is not valid insofar as it refers to the "emission" of soil in subparagraphs 5(a), (b) and (g), or in the particulars given in subparagraphs 5(d), (e) and (f).

15. The second specific allegation of a contravention in the grounds of the application, is paragraph 6 alleging that the respondent proposes to engage in conduct in contravention of subsection 51(2) of the Act.

16. It is alleged the forestry operations will disturb or cause the disturbance of soil which, combined with increased run-off, will disrupt the groundwater recharge and transmission process by blocking intake channels, thereby causing diminution of water yield within the catchment area.

17. Under this subsection a person who causes material environmental harm by polluting the environment is guilty of an offence. The offence does not require an "emission", but rather that there be "pollution" by the person concerned. The disturbance of soil falls within the definition of "pollute" and can therefore constitute "pollution".

18.It was contended on behalf of the respondent that there is a clear distinction made by the Act between the conduct which might cause a contravention, and consequences which might constitute a contravention. It was contended that it was the conduct in contravention of the Act which was the requisite element of a section 48 application, not the consequences. Reliance was placed upon the distinction between section 48 of the Act on one hand, and of the combination of sections 475 and 16 of the Environment Protection and Biodiversity Conservation Act 1999 (Commonwealth). While section 475 of the Commonwealth Act is equivalent to section 48 of the Act, section 16 of the Commonwealth Act allows for conduct to constitute a contravention of the Act where "it is likely to have a significant impact". It was contended that the absence from the Act of a provision similar to section 16 of the Commonwealth Act, meant that there was a differentiation by the Act between conduct and consequences.

19. In this context it is necessary to consider the effect of section 5(5) of the Act, providing that for the purposes of this Act, environmental harm is caused by pollution whether it is a direct or indirect result of the pollution, whether it results from the pollution alone or from the combined effects of the pollution and other factors.

20. In paragraph 6 of the grounds of application the alleged disturbance is of the soil indirectly causing environmental harm by the soil being washed into the groundwater intake channels. That is capable of constituting the offence under subsection 51(2); and that is so notwithstanding the presence of the "other factors", that is factors other than pollution, (the increased run-off).

21.In paragraph 6(d) of the grounds of application the allegation is of vibrations disturbing "subsurface geohydrological linkages", which it is not specifically stated but which it could reasonably be inferred is intended to be an allegation that it would lead to diminution of the water supply from the catchment. "Vibrations" fall within the definition of a "pollutant" and are alleged to be a direct component of the conduct of the forestry operations. They are therefore capable of forming a necessary component of an offence under subsection 51(2).

22. Subparagraphs 6(k)(l) and (m) of the grounds of application also refer to increased surface water run-off caused by the proposed forestry operations being likely to result in increases in groundwater content for a number of years. It is alleged that would lead to an increase in the vulnerability to landslides of slopes within and downhill of the coupe. In this respect it is necessary to return to the requisite components of offences under sections 50 and 51 of the Act; specifically, that there has to be "pollution" causing environmental harm. In this respect the increased surface water run-off caused by the proposed forestry operations is not specifically alleged to result from, but it is presumably intended to allege that it results from, the removal of the existing vegetation and its water-absorbing and retarding function and the resulting bare earth surface. There is nothing in the allegations or the evidence relied upon as supporting them, which indicates that the activity of removing the vegetation falls within the definition of "pollute". It therefore cannot constitute "pollution", and therefore notwithstanding that environmental harm may result from it, it cannot constitute a relevant and sufficient component of the offences constituted by sections 50 or 51.

23. The submissions for the respondent upon this issue were in essence that there was nothing in the proposed conduct of the harvesting operation, principally the cutting and removal of trees, that could constitute conduct in contravention of the Act. Insofar as the isolated activity of cutting and removal of trees is concerned that may be correct, but for the foregoing reasons any disturbance of soil, and any emission of vibrations, which may be involved in the carrying out of the tree harvesting and associated operations, may constitute a component of the alleged offences pursuant to sections 50 and 51 of the Act.

24. Upon the information presently supplied, therefore, the application under section 48 cannot proceed in respect of subparagraphs 6(k), (l) or (m) of the grounds of application.

25. Subparagraph 6(n) alleges disturbance of soil and emission of vibrations will result in a loss of land stability and increased potential for subsidence and land slips; this is capable of constituting both "pollution" and "environmental harm" and is therefore a valid allegation under section 48.

26. Paragraph 7 of the grounds of application alleges as a component of a contravention of section 51(1) of the Act, the element of recklessness of the respondent. It is not necessary in order to dispose of the issues raised by the parties, to consider this aspect.

27. Paragraph 8 of the grounds of the application alleges conduct in contravention of subsection 50(2) of the Act. For the foregoing reasons it is valid only insofar as the allegation of contravention alleges the disturbance of soil and the emission of vibrations resulting in a reduction of water flows and siltation contaminating water.

28. It was also contended for the respondent that it was only appropriate for a section 48 application to be made, in the event that an environment protection notice had been issued and not complied with. I am unable to find anything in the provisions of the Act which support that contention.

29. It was also contended on behalf of the respondent, with respect to the standing of the applicants, that it was incumbent upon the applicants to show through evidence why each of them should be heard. At the stage of the respondent's submissions of 10 March 2005 there had been no evidence tendered. The subsequent amended grounds of application and submissions on behalf of the applicant were accompanied by statutory declarations by each of the applicants other than Patricia O'Donnell, who had withdrawn as an applicant. Those statutory declarations included statements to the effect that there was a risk of pollution or diminution of their water supplies. The respondent's legal representative indicated no further submissions were intended with respect to any of the further material. The information given at this stage satisfies the Tribunal that each of the remaining applicants is prima facie a person with a proper interest as required by section 48 of the Act.

30. The above determination is as to whether the allegations contained in the amended grounds of application, if the necessary evidentiary findings are made, are capable of constituting the offences alleged. It does not in any way constitute a ruling as to whether those allegations are considered at this stage to be made out.

31. The hearing upon their merits of the portions of the grounds of application not identified above as invalid, accordingly remains listed to proceed upon the dates directed by the Tribunal; and the existing directions as to the exchange of evidence continue to apply.

Dated this 18th day of March 2005

KAM Pitt QC
Chairman