DOMACHUK v FEINER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SHELLER JA, GILES and Simos AJJA 28 November 1996, 28 November 1996 [1996] NSWCA 157 Nuisance — private — order restraining. Zoning to permit agricultural uses without consent did not mean offensive smells from mushroom compost were not a nuisance. The local council had power to fund proceedings brought by a ratepayer to restrain private nuisance: s24 of Local Government Act 1993. Giles AJA The first appellant Mrs Ekaterina Domachuk owns | Park Road, Kenthurst(the property). The second appellant A Domachuk Bouquet Composters Pty Ltd grows mushrooms at the property, for which purpose there are brought to the property quantities of compost largely made up of stable straw saturated with urine and mixed with manure from horses and other animals. The respondents Dr Ronald Feiner and Mr Patrick Ng are neighbours owning and living at 7 Dobell Place, Kenthurst (to the east of the property and across a roadway) and 23 Porters Road, Kenthurst (immediately to the south of the property) respectively. The respondents alleged that the compost caused offensive smells, offensive to the extent of causing physical distress, and that the appellants' activities constituted in law a nuisance. In proceedings brought by the respondents to enjoin the nuisance, on | July 19, 94 Brownie J made orders restraining the appellants on and after | January 1995 from accepting onto the property any waste material which included manure or urine from horses or other animals and awarding damages of $7,500 to each of the respondents. The appellants appealed against the orders. They proffered eight grounds of appeal. In the result, only grounds 1, 5 and 6 were pressed. In going to ground 1, in which it was said that his Honour erred in finding that the appellants' use of the property constituted an unreasonable interference with the use and enjoyment of the respondents' land having regard to the locality and the zoning of the property, it is I think desirable to have in mind his Honour's findings as to the nuisance. The former grounds 2 and 3 challenged those findings and the challenge is not maintained, but some understanding of what led his Honour to make his orders is desirable. There was a conflict of evidence before his Honour. Expert witnesses called for the appellants gave evidence that the procedures followed by them in dealing with the compost were such as to minimise smells, that the procedures accorded with industry standards, and; that they, the experts, detected no or no significant smells. Some other witnesses detected significant smells only from time to time. Against this, a great many neighbours or visitors gave evidence of offensive and distressing smells. His Honour recounted their evidence over some pages, and it was such that if they were accepted the finding of a nuisance was, subject to what is sought to be raised by ground 1, inevitable. His Honour addressed the evidence of those who had detected no or no significant smells, and accepted expert evidence explaining how smells drain downhill and are transported in plumes so that one person might detect a strong smell but a person nearby might not. He 2 UNREPORTED JUDGMENTS plainly accepted the evidence of those who spoke of the offensive and distressing smells. In a summary, he said as follows - "The defendants submitted that the smell was not so offensive as to constitute a nuisance; that the plaintiffs were unduly sensitive, so that the activities did not constitute a nuisance; and that the rural nature of the area meant that the activities did not constitute a nuisance, because the smell in question was no more than was ordinarily, to be expected in a rural or semi-rural area. However, the evidence of the plaintiffs and their neighbours amply demonstrates that all of these submissions are doomed to a resounding failure. Additionally, the area is largely one of a residential nature. At the very least, it is so closely settled that the defendants' activities do constitute a nuisance." In support of ground 1 it was submitted that the evidence did not establish such severe smells as would constitute a nuisance, having regard to the rural environment and in particular having regard to the zoning of the land as Non-Urban (C) where agricultural uses were permissible without consent. As the passage I have set out above shows, a rather similar submission was put to Brownie J, see the reference to the smell being "no more than ordinarily to be expected in a rural or semi-rural area". So far as the zoning is concerned, mushroom growing did require consent (although it seems the appellants did not have or need consent because of existing use rights), and in any event permission to use does not mean permission to use in a way constituting a nuisance. The smells were described in strong terms. They caused nausea and irritation, and neighbours cancelled social activities and sometimes moved away because of the smells. There is no point in going to the detail of the evidence to be found in the judgment of Brownie J. His Honour described the area at the conclusion of the passage set out above in terms amply supported by the evidence. In my view the severity of the smells was without doubt such that there was a nuisance even having regard to the nature of the environment and the zoning. Grounds 5 and 6 were in the following terms - "5. His Honour erred in finding that the Baulkham Hills Shire Council's maintenance of proceedings was within power, that is that Baulkham Hills Shire Council was empowered under the Local Government Act 1993 to initiate and finance the proceedings. 6. His Honour erred in not finding that as a matter of public policy the Baulkham Hill Shire Council's maintenance of the plaintiffs' proceedings was illegal and amounted to abuse of process and a denial of natural justice." The submission in support of these grounds was, with respect rightly, in more moderate terms. It was submitted that the Baulkham Hills Shire Council (the Council) had procured and financed the bringing of the proceedings by the respondents, that in doing so it had acted improperly because it had no power to finance the proceedings and by taking the course it did deprived the appellants of rights which they would have enjoyed if the Council had itself had acted to prevent the nuisance, that in "colluding" with the Council the respondents also acted improperly, and that relief should be denied to the respondents because they invoked the Court's equitable jurisdiction with unclean hands or (more widely) because the Court should not as a matter of public policy permit its processes to be used by the Council in the way it did. The background is as follows. URJ DOMACHUK v FEINER (Giles AJA) 3 The Council brought proceedings in 1986 to restrain what was alleged to be a public nuisance. It failed, on the ground that it had not given an appropriate notice called for by the legislation under which it acted requiring that the appellants abate the nuisance. It was found that a case of public nuisance had been made out which would have given the Council standing as a plaintiff if an appropriate notice had been given, and Brownie J correctly described the failure as "on technical grounds". The Council and Dr Feiner brought further proceedings in 1993 to restrain the appellants from accepting the offensive compost, and those proceedings were compromised on terms relating to times of delivery of the compost and its treatment and use before and after delivery. This did not solve the problem, and there was agitation from the neighbours (including a protest outside the property in which Dr Feiner was prominent) and representations at least by Mr Ng to the Council to take action. The last-mentioned representations came to a head in early 1994. The circumstances were not the subject of explanation in the evidence, but there was evidence that the Council asked Dr Feiner whether he was prepared to be a party to the proceedings and he agreed, and the Council resolved on 1 March 1994 to authorise its General Manager "to initiate proceedings in the Supreme Court to obtain an interlocutory injunction against" parties including the appellants to prevent the nuisance, subject to the advice of Council's solicitors. The resolution continued - "2. Dr Ronald Feiner (7 Dobell Place, Kenthurst) be a party in the proceedings against Mr Domachuk, Bouquet Composts, A Domachuk Pty Ltd and Domachuk Bouquet Pty Ltd relating to nuisance arising from the premises at | Park Road, Kenthurst, based on advice from Mr John Whitehouse from Dunhill Madden Butler, solicitors, that Dr Feiner will not incur any legal costs by his action and that council will not incur any additional costs by this action. 3. The granting of an indemnity to Dr Feiner for any costs which may be awarded against Dr Feiner in these proceedings, provided that such indemnity would not expose the council to any additional costs than it would otherwise be liable for." The proceedings were commenced on 11 March 1994 with Dr Feiner as plaintiff. On 15 March 1994 the Council resolved that it "seek to have Mr Ng joined in the proceedings", and passed further resolutions in terms equivalent to those I have set out above. The amendment joining Mr Ng as plaintiff was made on 18 March 1994. The argument in support of these grounds was that the Council had no power to spend money in funding the proceedings, that in. that sense (and that sense only) it acted improperly, and that that meant that the respondents had unclean hands or should otherwise be denied relief. In the end the only basis for denial of relief was unclean hands. According to the argument, the Local Government Act 1993 gave specific powers in s124 and s125 (contained in that part of the Act dealing with the regulatory functions of councils) for the Council to give orders relating to the use of property (s124) and the abatement of public nuisance (s125). The procedure for giving the orders called for prior notice to the person the subject of a proposed order (s132), an opportunity afforded to the person to make representations (s133), the hearing and consideration of the representations (s134), and then and only then the giving of the order: further, reasons for the order had to be given. These were the "rights" of which the appellants said they were deprived by the course taken in the present case. It was then said that, by regard to the expressio unius principle, no other source of power was to be found 4 UNREPORTED JUDGMENTS by which the Council could act to assist the respondents in proceedings to enjoin a private nuisance, so that there was in the Act no power to do what the Council did. From that foundation the argument was taken to the assertion of unclean hands to which I have already referred. In my view the argument fails in at least two of its steps. The Council could apply its funds towards any purpose allowed by the Act (s409(2)). Apart from its regulatory functions, the Council had service functions. The service functions were to be seen in the light of the purposes of the Act expressed in s7, which purposes included "giving councils the ability to provide goods, services and facilities and to carry out activities appropriate to the current and future need of local communities and all the wider public". Regard may also be had to s8, stating that a council has a charter which includes the provision directly or on behalf of other levels of government, after due consideration, of adequate equitable and appropriate services and facilities for the community and ensuring that those services and facilities are managed efficiently and effectively, and the proper management, development, protection, restoration, enhancement and conservation of the environment of the area for which the council has responsibility. These aspects of the charter found in s8(1) were submitted by the appellants to be qualified by s8(2), in which it is said that a council in the exercise of its functions must pursue its charter "but nothing in the charter, or this section gives rise to, or can be taken into account in any civil cause of action". The qualification, as I understand it, was said to be that the charter did not empower the Council to bring or assist in bringing any civil cause of action, but I do not think that s8(2) has that effect: its function is much more limited. The purposes in s7 so far as they relate to service functions are taken up in s24 of the Act, by which it is provided that a council may provide goods, services and facilities and carry out activities appropriate to the current and future needs within its local community and all the wider public, subject to the Act, the regulations and any other law. I do not think that the expressio unius principle results in confining s24 on the ground that the only way in which the Council may involve itself in restraint of nuisances is pursuant to s124 or s125. In my view it is plainly left available to the Council to go to court rather than issue a notice to restrain nuisances, whether public or, if affecting the Council itself, private. Nor do I think that there is any confinement whereby the Council is unable to assist persons in the manner the Council assisted the respondents to restrain private nuisances, that being the carrying out of activities appropriate to the current and future needs within the community. On the findings made by Brownie J there was an egregious nuisance, and assistance in restraining the commission of the nuisance is an activity which in my view it was quite proper for the Council to have engaged in and fell within s24. Quite apart from that, even if the provision of assistance was beyond the Council's power that does not mean that the respondents came to court with unclean hands. It must be remembered that it is the respondents whose hands are in question, not the Council. So far as the evidence shows, the respondents sought assistance from the Council. They were asked by the Council if they would be plaintiffs upon terms that the Council would pay their costs and indemnify them against costs, and they agreed, without any suggestion of knowledge that the Council might have been acting beyond power and certainly without any suggestion that the Council was in any other way acting improperly. An impropriety said to cause a plaintiff to have unclean hands must have an immediate and necessary relation to the equity sued for, see Dewhirst v Edwards URJ DOMACHUK v FEINER (Simos AJA) 5 (1983) 1 NSWLR 34 at 51. Here the equity sued for was the offence to the respondents' rights as owners and occupiers of their land, and taking advantage of the assistance offered by the Council was quite unrelated to the equity. I am unable to see that even if some constructive notice that the Council was acting beyond power is to be attributed to the respondents, their hands should be regarded as relevantly unclean. Thus in my opinion the fifth and sixth grounds of appeal have not been made out. It follows that in my opinion the appeal should be dismissed with costs. Sheller JA I agree. Simos AJA I also agree and would only add two comments of my own by way of emphasising that agreement. The first comment is in relation to the application of the rule of construction which was so heavily relied upon by counsel for the appellants, expressio unius est exclusio alterius, meaning an express reference to one matter indicates that other matters are excluded. In this connection I would only refer to what the High Court said about that rule of construction in the case of Houssein & Anor v The Under Secretary, Department of Industrial Relations and Technology NSW & Anor (1981-82) 148 CLR 88 at p 94 in which a joint judgment of five justices contains the following passage: "That maxim must always be applied with care, for it is not of universal application and applies only when the intention it expresses is discoverable upon the face of the instrument... It is "a valuable servant, but a dangerous master...'." The second comment I wish to make by way of emphasising my agreement with what his Honour has said relates to the defence of clean hands: he who comes to equity must come with clean hands. For that defence to be made out, the improper conduct said to constitute lack of clean hands must have an immediate and necessary relation to the equity sued for: see Dewhirst v Edwards to which his Honour referred. For the defence to be made out it must be the case that the right being sought to be vindicated by the plaintiff in a court of equity is one which, if protected, would mean the plaintiff was taking advantage of his own wrong in relation to the equity sued for: FAI Insurances Ltd v Pioneer Concrete Services Ltd (1987) 15 NSWLR 552 at p 561 per Young J. In my opinion, even if the Council had exceeded its powers in indemnifying the plaintiffs, neither of those requirements of the defence of clean hands was made out in the present case. Sheller JA: The order of the court is that the appeal be dismissed with costs. Appeal dismissed with costs. Counsel for the Appellant: Mr P McEwen Solicitors for the Appellant: Messrs Sly and Weigall Counsel for the Respondent: Mr T Hale Solicitors for the Respondent: Messrs Dunhill Madden Butler