The case of Chief Executive of the Department of Environment & Science v Nugrow Ipswich Pty Ltd [2024] QPEC 8 concerned an application to the Planning and Environment Court of Queensland (Court) by the Chief Executive of the Department of Environment and Science (Chief Executive) seeking interim orders
(Interim Application) that a waste facility operator (Respondent) cease operation of waste facility activities pending the outcome of an originating application against the Respondent for an alleged odour nuisance (Originating Application).

The Court held that it was appropriate to have regard to established principles relating to an interlocutory injunction when deciding this matter, and considered the following two issues (at [37]):

1. Whether there is a serious question to be tried.

2. Whether the balance of convenience favours the interim relief being granted.

The Court held that the Originating Application involves a serious question to be tried and that the balance of convenience does not weigh in favour of granting the interim relief sought.

The Court was not satisfied that it would be proper to make the orders sought by the Chief Executive and dismissed the Interim Application and allocated expedited hearing dates to the determination of the Originating Application.

The Respondent operates a large waste recycling and compost manufacturing facility in Swanbank, Ipswich (Facility) (at [6]). The Facility is surrounded mainly by industrial uses, with two residential developments located approximately 1.4 kilometres and 1.5 kilometres from the Facility boundary (at [7]). Given the Facility's activities, there is a potential for adverse odour impacts on surrounding areas (at [8]).

On 3 April 2019, the Respondent was granted an amended development approval and environmental authority (EA) for the use of the Facility which includes a condition that  "[o]dours or airborne contaminants must not cause environmental nuisance to any sensitive place or commercial place" (at [6]).

The Respondent conceded that it had exceeded the odour impacts authorised by the EA and on 7 May 2019 submitted a program notice to the Department of Environment and Science (DES) under section 350 of the Environmental Protection Act 1994 (Qld) (EP Act), which stated that a "transitional environmental program" would be prepared and submitted to the DES (see [9] and [14]). A "transitional environmental program" is defined in section 330(1) of the EP Act as "…a specific program that, when complied with, achieves compliance with this Act for the activity to which it relates by doing 1 or more of the following—

(a)        reducing environmental harm caused by the activity;
…
(c)        detailing the transition of the activity to comply with—

(i)         a condition of an environmental authority for the activity; or

…"

On 22 August 2019, the application for a transitional environmental program was made to the DES, which was refused and later approved subject to conditions by the Court on 4 September 2020 (at [16]). One of the conditions required the construction of "…purpose-built compost tunnels…with concrete hardstand between for vehicle access", with a compliance date of by 4 September 2023 (Compliance Date) (see [16] to [17]).

The Respondent sought an amendment to the approved transitional environmental program to abandon the in-vessel tunnels in favour of an alternative composting system, which was refused and is the subject of a separate appeal before the Court (see [17] to [18]).

Two weeks prior to the Compliance Date, the DES engaged a consultant to conduct a "Field Ambient Odour Assessment Investigation Study" in relation to the Facility (Odour Study) (at [19]). The Court summarised the key findings of the Odour Study as follows (at [20]):

1. Frequent odour characters are present in the study area.

2. Frequent odour characters were detectable and attributable to the Respondent.

3. Off-site impacts were detectable more than 5 kilometres from the Facility.

4. The operation of the Facility will continue to lead to high to extreme odour impact risks if modifications and upgrades are not adopted.

On 1 December 2023, the Chief Executive filed the Originating Application relating to an alleged breach of section 440(2) of the EP Act, which states "[a] person must not unlawfully cause an environmental nuisance" (see [26] to [27]).

The term "environmental nuisance" is defined in section 15(a) of the EP Act as "…unreasonable interference or likely interference with an environmental value caused by…aerosols, fumes, light, noise, odour, particles or smoke…". The term "environmental value" is defined in section 9 of the EP Act as relevantly including "…a quality or physical characteristic that is conducive to ecological health or public amenity or safety; or…another quality of the environment identified and declared to be an environmental value under an environmental policy or regulation".

The Originating Application sought an order restraining the construction of an in-vessel composting system capable of handling the Respondent's composting operations (at [23]). The Respondent affirmed that it was open to a solution of the type sought by the Chief Executive, and that it has been pursuing such a solution for a number of years (at [24]).

Although it may appear that there is no dispute between the parties, the Court confirmed the dispute the subject of the Originating Application has two parts. Firstly, whether the alternative composting system proposed by the Respondent is an acceptable alternative to the in-vessel composting system, and secondly, the timeframe that the alternative system is to be constructed and commissioned by (at [24]).

The Court noted that it may make orders it considers appropriate under section 505(5) of the EP Act if it is satisfied of either of the two limbs, being an offence against the EP Act had been committed or an offence against the EP Act will be committed unless restrained (at [41]).

The Court noted that it was unnecessary for it to make findings on whether the "voluminous" body of evidence is accepted, accepted in part, or rejected (see [44] to [45]). The Court was instead satisfied that the evidence provided by both parties establishes a case that "…there is a genuine risk that an offence against the EP Act will be committed unless restrained", with the offence being "environmental nuisance" (at [47]).

The Court determined that there is a serious question to be tried in the Originating Application (at [49]).

The Court accepted that three of the eleven matters raised by the Respondent attract sufficient weight to impact on the "…balancing exercise at hand" (at [58]). Firstly, the financial distress to the Respondent as a result of having to cease certain Facility operations (at [59]). Secondly, the Chief Executive offered no undertaking for damages in support of the relief sought (at [62]). Thirdly, the Respondent is committed to implementing further interim, and final, measures to manage the odour impacts of the Facility as supported by a waste industry expert (see [64] to [65]).

The Court was not satisfied that the balance of convenience favours granting the interim relief sought by the Chief Executive, for the following three reasons (see [67] to [71]):

1. Granting the interim relief sought "…has the very real potential to frustrate the final relief sought by the Chief Executive" (at [69]).

2. Granting the interim relief sought "…is likely to lead to significant financial distress" for the Respondent to cease Facility operations, and in conjunction with the absence of an undertaking as to damages by the Chief Executive is "…a step too far" (at [70]).

3. The Originating Application can be allocated expedited hearing dates to allow the parties to work toward resolving the key issues in dispute (at [71]).

The Court was not satisfied that the balance of convenience favours granting the relief sought by the Chief Executive (at [72]).

The Court dismissed the Interim Application, and allocated the Originating Application expedited hearing dates.