CAMPBELLTOWN CITY COUNCIL v. RAPLA HOLDINGS PTY. LIMITED [1991] NSWLEC 103 (2 October 1991)

IN THE LAND AND ENVIRONMENT No.40022 of 1991

COURT OF NEW SOUTH WALES

CORAM: BANNON J.

JUDGMENT

CAMPBELLTOWN CITY COUNCIL

(Applicant)

V

RAPLA HOLDINGS PTY. LIMITED

(First Respondent)

and

INTERNATIONAL POOLS (AUST) PTY LIMITED

(Second Respondent)

2 October 1991

In these Class 4 proceedings, Campbelltown City Council ("the applicant") seeks declaratory orders and injunctive relief against Rapla Holdings Pty. Limited and International Pools (Aust) Pty. Limited, ("the respondents") with respect to alleged breaches of conditions of a development application granted to the firstnamed respondent with respect to land within the city area zoned Industrial 4(a) under Interim Development Order No. 21 (Exhibit M). The development application was for a factory to build fibreglass swimming pools. The First Respondent appealed against the conditions of approval and on the hearing of the appeal, after hearing evidence from various experts, and from Mr K.W. Kahler, Managing Director of the respondent, Hemmings J. substituted for Condition 14 of the approval, a new condition. A copy of the reasons for judgment delivered by Hemmings J. on 8 December, 1989 is Annexure D to the affidavit of Mr I.R. Malvern sworn 5 February, 1991 in the present proceedings.

The conditions of approval claimed to be breached, including the substituted Condition 14, are set out in Annexure C to Mr Malvern's said affidavit. They read:

"6. The overhead crane track shall not exceed the 7. The storage of the pools, waste or extraneous material driveways, the vehicular manoeuvering and parking or at the rear and front of the property shall clear as to ensure that styrene gas measured at any dwelling in adjoining residential area as an average over a 15. The factory doors shall be closed at all times with One argument advanced on behalf of the respondent was that Condition 14 superseded Condition 13 as regards the effect of styrene emission upon the neighbourhood insofar as it was imposed later than Condition 13. However, in law the effect of Hemming J's order was that all conditions are deemed imposed simultaneously, the proceedings before the learned judge having been a rehearing pursuant to s.39 of the Land and Environment Court Act, 1979. I reject that argument.

order to make fibreglass swimming pools it is necessary to place fibreglass in large moulds and then to spray the fibreglass with liquid styrene. Styrene is a fluid hydrocarbide monomer which forms a polymer in the curing process. In the course of spraying and curing it emits a distinctive odour. In the course of spraying, whether by panelbeaters or manufacturers of surfboards or swimming pools, it is customary for the operators to wear face-masks. According to some nearby residents, the styrene vapour has caused eyes to smart and respiratory problems, but there was no medical evidence upon the subject. However, I accept that some residents have suffered discomfort after inhalation and from vapour contact with their eyes.

the industrial area, including the subject factory. Immediately to the south of the railway is a residential area, and it is from here that there comes a chorus of complaint about the discomfort caused by, and the smell of, the styrene. The rear of the respondents' factory abuts the railway line. There was evidence that passengers on the trains smelled the styrene vapours from the respondents' factory. Persons driving around the industrial area also smelt the odour. Several persons in the residential area gave evidence that both in their homes and in the streets, they smelt and suffered discomfort from styrene vapours. An argument was advanced that with respect to the claimed breach of Condition 13 the area suffering detriment was not the neighbourhood but only a small segment. In Attorney General v PYA Quarries Ltd. (1957) 2QB 169,

184 Romer L.J. said:

generally 'the neighbourhood'; but the question whether the community within that sphere comprises a number of persons to constitute a class of

That judgment was referred to with some approval in Attorney General v Farley and Lewers Ltd. (1962) 8 LGRA 186, 198, 199.

Several persons from the adjacent residential area swore affidavits, and gave evidence of the effect of the styrene vapours upon themselves and members of their families. I am of the opinion that a sufficiently large number of persons were affected by the alleged nuisance to constitute a class of the public. It is true that I did not hear from surrounding industrial users, and I accept that probably some of them were within the sphere of the nuisance.

Having listened to the witnesses and their cross-examination, I am satisfied that although one or two of them, especially the lady who donned a gas mask, might have over reacted to the problem, their reactions fall within those of plain, sober and simple notions unaffected by special sensitivity or eccentricity referred to in Attorney General v Farley and Lewers Ltd. at 201, 202. They described how the smell varied in annoyance to them, the offensiveness increasing on a still night when the factory of the respondents was operating and also when the wind was blowing from a generally northern direction.

While I accept that the amenity of the neighbourhood in question has to be considered in the light of the presence of industrial zones on the northern side of the railway line, the presence of an industrial zone does not mean that the neighbourhood is required to tolerate offensive odours emanating from that zone when a condition of development approval requires the business be conducted so as not to interfere with the amenity of the neighbourhood. There is no evidence that the locality is occupied by trades which are inevitably producing odours of which the complaint of odours are typical and which cannot be otherwise conducted so as not to produce offensive odours to the detriment of the amenity of the neighbourhood. It was said that there were some panelbeaters in the industrial area, but there was no satisfactory evidence that their activities produced offensive vapours affecting the residents. The conditions of approval in this case deny the respondents the opportunity to subject the neighbourhood to "an unreasonable increase in the amount of noise or smoke which denies ... reasonable comfort." Don Brass Foundry Pty. Ltd. v Stead 48 SR 482, 487.

In his affidavit of 28 August 1991, Mr Kahler, Managing Director of both respondent companies, deposed that the first and second respondents are related companies, the first respondent being the owner of the subject premises and the second respondent carrying on the manufacture of swimming pools and spas.

It was submitted that the odours affecting the residents may have come from other factories. Wind and direction charts from the Bureau of Meteorology, Camden Station became Exhibit 2 and those from the Pilkington - ACI factory site became Exhibit 7. Measurements of distances from the respondents' factory site to the Bradford factory, and to measuring stations were given by the witness Mr A.J. Spooner. The applicant also tendered meteorological records, Exhibit K. A certain degree of discussion took place with witnesses and in particular with Dr P. Zib concerning wind directions generally, local wind patterns and wind directions at different heights. While these gave some assistance, they were of little consequence compared to the evidence of witnesses who not only smelled the odours in the residential area but also in some instances drove around to the respondents' factory to verify that it was the source of the styrene odours. These were Mr W.L. Clark, Mr R.M. Thompson and Mrs P.M. Thorsby. Further support for this view came from the evidence of Mr A.V. Uyeda who had previously worked at the respondent's factory. Although other possibilities were mooted, I am satisfied on the evidence that the source of the styrene vapour odours complained of is the respondents' factory. The worst effect has been on still nights when there is little or no wind to disperse the styrene gas vapours.

On behalf of the respondents, Mr B. Preston, of Counsel, referred me to the canon of construction that where there are a series of conditions in the same instrument, each should be construed differently if possible, so that they do not overlap. The principle is clearly stated by Lord Esher in Parkinson v Simon (1894) 11 RPC 493 at 502 line 50 to 503 line 6. The same principle is discussed by Mason J., as he then was, in Leon Fink Holdings Pty.Ltd. v Australian Film Commission (1979) 141 CLR 672; 24 ALR 513, 518; and in Refrigerated Express Lines (A'asia) Pty.Ltd. v AMLC [1980] FCA 38; (1980) 29 ALR 333 at 347 per Deane J. On behalf of the applicant, Mr B. Tamberlin, Q.C., submitted that it was not appropriate to apply any rule of interpretation based on avoidance of redundancy or tautology, because Condition 14 was intended as a "back-up' condition in relation to Condition 13, rather than an exclusive specific provision. It appears to me that as the neighbourhood of the subject premises is larger than the adjacent residential area, as submitted on behalf of the respondents in their written submissions Nos. 42 to 47 inclusive, it would not be appropriate to interpret Condition 13 as excluding damage to the amenity of the neighbourhood by the emission of styrene vapours, thus depriving persons in the industrial area of its protection. Those submissions were as follows:

"42. Firstly, there is insufficient evidence to establish the neighbourood as opposed to a particular segment of neighbourhood. Neighbourhood refers to a region factory. It is, in effect, a circle of a particular 43. The residents who have given evidence as being affected within a very narrow arc or segment of that degrees James Street and two reside in Redfern Street. No gave 14, in my opinion, is a super added protection to the residential area forming part of the neighbourhood and is not to be interpreted as the exclusive provision protecting the amenity of the neighbourhood as regards styrene vapour emissions. To accept the respondents' written submissions in this regard would require the word "neighbourhood' in Condition 13 to be interpreted so as to exclude the residential area, a view with which I disagree.

The next question to consider is the claimed breach of Condition 14. In order to prove its case, the applicant relied upon sampling carried out by Mr A.J. Spooner, a senior Health and Building Surveyor employed by it. Some sampling was carried out also by Mr A. Gardner. Mr Spooner deposes to his activities in affidavits sworn 5 March 1991, 12 July 1991 and 28 August 1991, while Mr Gardner's affidavit is dated 3 July 1991. Both gave oral testimony. Annexed to Mr Spooner's affidavit of 12 July 1991 is a chart, Annexure B, which sets out details of the samplings. In evidence the chart was corrected and a substitute chart became Exhibit R. The evaluation of the samples was carried out by Mr R.L. Chapman whose affidavit is dated 9 July 1991 and by Ms B. Moore of Analchem Consultants Pty. Ltd. who affidavit is dated 3 July 1991. Both were cross-examined on their testimony.

rival sampling was carried out by Miss M.L. Lashmar on 7 May 1991. Her affidavit was sworn 24 May 1991. Miss Lashmar is an environmental scientist, employed by Dames and Moore. Her evidence was supplemented by Mr K.G. Holmes, also of Dames and Moore, an industrial chemist and environmental scientist, whose affidavit in these proceedings was sworn on 29 May 1991 and by the evidence of Mr R.G. Mooney, an analyst with Australian Analytical Laboratories. All were cross-examined. On the one occasion of Miss Lashmar taking samples, viz, on 7 May 1991, the results obtained showed concentrations of styrene less than those prohibited under Condition 14.

was explained that both Miss Lashmar and the applicant's samplers, took samples over a longer period than the period prescribed by Condition 14 and then a mathematical procedure was adopted to reach a result for the requisite period. This was because of a practical impossibility in testing over a three minute period for the prescribed quantity. No exception was taken to this procedure (K.G. Holmes affidavit, paragraphs 10-11).

attacks upon the reliability of the applicant's sampling procedures and the results obtained from them were made by Mr Preston relying on evidence given by Mr Holmes. The basic grounds of attack were, first, the methods of calibration of the pumps used in taking samples, including the lack of calibration on various occasions; second, the instability of the pumps used and the effect of this on results obtained; third, the lack of care in recharging batteries prior to sampling; fourth, the lack of care to take into account barometric and temperature changes; fifth, the non-use of blank samples as checks on the testing process; and sixth, delays between sampling and testing.

Mr Gardner, who took Samples Nos. 1 and 2 on the chart (Exhibit R), himself calibrated the pump before and after sampling, but his sample results were not taken in the residential area as required by Condition 14. Mr Spooner relied upon pumps which were calibrated off site before being delivered to him. Further, he took the view that post sampling calibration could be left until after the pumps had 60 minutes of running time. He said calibration was done to ensure the pumps were working correctly. He said calibration can be used to correct instability in the flow rate of a pump. He said any increase in flow rate would result in sample results showing a lesser concentration of styrene, than was actually present. Mr Holmes maintained that instability in flow rate could lead to lower flow rate as well as higher flow rate so the results would be uncertain. Mr Spooner said calibration can be used to correct results due to using pumps with an unstable flow rate. He also said that by listening, the operator can detect variations in flow rate from variations in the rhythm of pump and motor. He agreed that variations in barometric pressure and in temperature can affect results. He said he did not take the last mentioned factors into account for the samples Nos.3-15 inclusive in Exhibit R, but did so for samples Nos.16-19 inclusive in Exhibit R. Mr Spooner also said the Dupont pump used for some samples had a four litre flow rate, the higher rate being recommended by Mr R. Chapman. The Dupont pump utilised parallel sampling and it was used to increase the flow rate.

and charged the nickel batteries where charging facilities were available. He said the working life of self-indicating batteries was between 12 and 16 minutes. Mr Gardner also maintained that a downward variation in calibration after sampling was not significant. Proper adjustment would only make the result even higher. He said he knew the pumps he used were not unstable.

it is true that Amahsco Pty. Ltd. in the document, Annexure H, to Mr Spooner's affidavit of 12 July 1991 state that the flow rate of the pump the Dupont Gilian model, used in fact for Samples 9, 10, 11, 12, 13, 16 and 17 was unstable, it shows an average flow rate of l.79 litres per minute average over 6 tests, varying from 1.786 to l.793 litres per minute. The range of fluctuation does not indicate that any error would be more than minor whereas the styrene detected in those samples respctively was 0.55, 0.40, 0.30, 0.35, 0.73, 0.78 and 0.42 respectively, all well above the limit of 0.05 ppm set by Condition 14.

As regards the Dupont Genesis model used for the Samples Nos. 15 and 18, the Amahsco report, Annexure J to Mr Spooner's affidavit of 12 July 1991, shows that calibration was the same both before and after testing.

While I accept the criticism that Mr Spooner and Mr Gardner could have taken steps to be more accurate as regards the calibration and stability of the pumps used, my overall impression is that, even allowing for Mr Holmes' criticisms, the results still leave me comfortbly satisfied that the samples showed a concentration well over 0.05ppm. Further, any criticism as regards the taking into account of barometric and temperature conditions cannot be levelled against Samples Nos. 16-18 inclusive, which again show results well over 0.05 ppm.

The third criticism regarding battery charging again has certain elements of merit. The pumps and batteries were obtained from commercial suppliers and one would expect them to be in reasonable order prior to delivery. In any event, Mr Spooner said one of the batteries had a check function and that he used it. Mr Gardner also charged the nickel battery he used. He said the self-indicating ones had a working life of 12 to 16 minutes. While a careful laboratory analyst may well have spent his time studiously checking the battery charge, the only result of a run down in charge is to slow down the rate of flow of atmosphere tested. Having regard to the extended period of the actual tests, which, with the exception of Sample 19 was over much longer periods than the period of three minutes referred to in Condition 14, and having regard to the occasions when the battery charge was checked in the field and the result still came out heavily in excess of that prescribed in Condition 14, I am of the opinion that any defect in checking of the batteries has not vitiated the overall result that all tests show a breach of Condition 14.

fourth ground of attack has already been covered and I may add that the evidence did not establish any great variations in barometric pressure or temperature at Ingleburn at the dates of sampling.

fifth ground of attack relating to delay in analysis was effectively answered by the evidence of two witnesses. Mr D.C. Carter, an analytical chemist whose affidavit was dated 2 September 1991 said delay would only lead to a decrease in the detection of styrene actually in the sample and that no reaction with other substances in the sample tubes would produce styrene monomer. He also referred to gas chromatography as showing up the presence of contaminants, if any. The other witness, who effectively supported Mr Carter's evidence, was Mr R.G. Mooney, an analyst called on behalf of the respondents. He said there was no problem with delay if the samples were properly stored and sealed, as appears to be the case, he said, up to one month. Either he or Mr Holmes said, the most likely result of leaving the sample in the tube too long was to lead to polymerisation giving a lower analysis reading as to the presence of styrene monomer.

I accept Mr Preston's submission that Samples Nos. 1, 2 and 3 should be disregarded because they were not taken within the residential area and I have no means of extrapolating from them. Although calibration of the pumps on site is set out at least in the ASTM standard, it does not appear to me that a failure to do so vitiated the results obtained. As Mr Tamberlin argued, even if calibration was not performed immediately before and after sampling, any statistical error was likely to be on the conservative side. The same answer can be given regarding any instability in the pump. The results obtained still indicate that the styrene gas when measured in the area referred to in Condition 14 was well above 0.05 ppm or 3 odour units per three minutes at the sampling places in the residential area. With regard to Sample No. 15 I see no reason to reject as insufficient the calibration of the pump by the hirer, Amahsco Pty.Ltd., in laboratory conditions. The result on that occasion alone is sufficient to establish a breach of Condition 14. Other attacks were made on the methodology of taking of Samples Nos. 15, 18 and 11. I see no substance in Mr Holmes' and Dr Chapman's criticism of the parallel sampling techniques for Samples Nos. 15 and 18. I am prepared to set aside as doubtful the result of Sample No. 11, because of the re-use of a tube previously opened.

So far I have come to the conclusion after listening to the views of the expert witnesses and the evidence of the methods used, that I should accept as comfortably proven that the majority of samples established breaches of Condition 14.

The next attack on the sampling process is set out in written submission No. 33 as follows:

"33. Fifthly, Mr Spooner did not follow proper quality and quality control procedures. His with blank samples was scientifically 33.1 There should have been a field blank for each inspection or field study (that is, on each or night of sampling) (Clause 9.7 of ASTM 33.2 The blank should be 'blind' in the sense that the sampler knows it is a blank, the analyst way, bias is eliminated (see evidence of Mr 33.3 Mr Spooner failed to take a random selection of check of desorption efficiency (see Clause 7.1.31 of of quality controls to check samples does not mean that the results obtained should be rejected as inaccurate or unreliable.

While the respondents made vague suggestions concerning other possible sources of styrene gas emissions affecting the residential area, not a single witness was produced to establish the emission of styrene gas from other factories at the times when it was measured by Council officers or smelt by local residents. An analysis of the sample data prepared on behalf of the applicant, which I accept, subject to the exceptions stated, is Annexure A to these reasons for judgment.

was made to standards adopted by the World Health Organization. While there was some evidence as to this I fail to see that it has any evidentiary weight as regards the domestic law of New South Wales. I am not aware that its conclusions have been adopted into domestic law, and it does not enjoy the evidentiary value of the findings of a Royal Commission. In any event, I prefer the evidence of the local residents, whom I have seen and heard, to any findings of the World Health Organization, however august that body may be. Counsel for the respondents relied upon the old doctrine of coming to a nuisance as regards some of the residents. That doctrine is not of general acceptance, Sturgess v Bridgman (1879) 11 Ch.D.852, but in any event has no application to the circumstances outlined.

Mr Preston then pointed to certain discretionary matters. These included the applicant Council's zoning of the land, the lack of objection to zoning by the residents, and the efforts made by the Managing Director of the respondents, Mr Kahler, to comply with Council's conditions and to modify the emission of styrene gas. It must be noted that Mr Kahler informed Hemmings J that his companies could meet Condition 14, erroneously as it seems.

In difficult economic times it would be foolish to overlook the economic consequences to Mr Kahler's companies, to his employees and franchisees if injunctive relief were granted which had the effect of stopping production. Mr Kahler in his affidavit and in oral testimony related the problems experienced in finding a site, and in complying with Council's requirements. It is my opinion that he has made real efforts to meet the conditions of development consent, and some weight should be given to those efforts.

As regards Condition No. 6, this condition appears meaningless and was not pursued by Mr Tamberlin. As Mr Preston rightly submitted, the crane runs on tracks at ground level.

As regards Condition No. 7, I am satisfied that breaches occurred and there was storage of material in prohibited areas. Photographs, the affidavit dated 5 February 1991, and the oral evidence from Mr I.R. Malvern on this question are accepted. However, I also accept that the breaches have now ceased and are not likely to be repeated. A declaration of breach without further relief suffices to cover this matter.

regard to Condition No. 15, I am not satisfied that the doors have been left open other than when loading and unloading and I find for the respondent in this matter. While Mr Malvern observed the doors open for long periods, loading and unloading of large fibreglass pools can also take place over long periods.

my opinion, the respondents should be given a reasonable opportunity to devise methods to control the emission of styrene gas and to raise any necessary capital.

In conclusion I declare the respondents have breached Conditions 7, 13 and 14 of the Conditions of the subject development approval.

With respect to the breaches of Conditions 13 and 14, which I find to be established, I make the following orders:

defendants are restrained from conducting the at 19 D.P. 717203 in such a manner as to interfere the amenity of the neighbourhood by permitting escape material The defendants are restrained from using the premises at Lot 19 D.P. 717203 in such manner that at dwelling in the adjoining residential area as an over a three minute period shall not exceed period of four months from the date of this judgment. I will hear further argument on the question of costs.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 17 PAGES ARE A TRUE AND ACCURATE COPY OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE MR JUSTICE BANNON.