Land and Environment Court New South Wales Medium Neutral Citation: Gerondal v Eurobodalla Shire Council [2011] NSWLEC 77 Hearing dates: 14 February 2011 Decision date: 02 May 2011 Before: Craig J Decision: 1. Leave to appeal granted. 2. Appeal dismissed. 3. The applicant is to pay the respondent Council's costs of the appeal. Catchwords: APPEAL:- appeal pursuant to s 56A of the Land and Environment Court Act 1979 - admissibility of evidence used at but not prepared for conciliation conference held under s 34 - admissibility of evidence unlawfully obtained - s 197 of Protection of the Environment Operations Act 1997 - premises not used only for residential purposes - findings by Commissioner that provisions of the Protection of the Environment Operations Act 1997 had been breached - order requiring submissions of plan for removal of waste from land - consistent with s 96(3)(i) of the Protection of the Environment Operations Act 1997 - no error of law Legislation Cited: Evidence Act 1985, s 138 Civil Procedure Act 2005, s 56 Interpretation Act 1987, s 6 Land and Environment Court Act 1979, s 17(a), s 34, s 56A, s 38 Protection of the Environment Operations Act 1997, s 95, s 96, s 111, s 144, s 196, s 197, s 289 Uniform Civil Procedure Rules 2005, r 50.3, r 50.12 Cases Cited: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Gerondal v Eurobodalla Shire Council [2010] NSWLEC 1217 Taylor v Port Macquarie - Hastings Council [2010] NSWLEC 142 Category: Principal judgment Parties: Monica Netta Gerondal (Applicant) Eurobodalla Shire Council (Respondent) Representation: In person (Applicant) Mr A Warren (solicitor) (Respondent) In person (Applicant) Andrew Warren & Associates (Respondent) File Number(s): 10890 of 2010 Judgment 1HIS HONOUR : Monica Netta Gerondal has collected and stored an array of material on her New South Wales South Coast property known as 19 Munjeroo Lane, Bingie ( the land ). The respondent Council, through its staff, clearly has a different opinion from that held by Mrs Gerondal as to the worth of that material. It has determined that much of the material is waste which must be removed. 2Accordingly, on 13 July 2009 the Council served notice on Mrs Gerondal requiring that she cease transporting "waste" to her land and further requiring that materials listed in the notice be removed from the land. Removal was required by 12 October 2009. The notice issued by the Council was given pursuant to s 96 of the Protection of the Environment Operations Act 1997 ( the POEO Act ). 3As was her right, Mrs Gerondal appealed to this Court against the notice served on her by the Council: s 289(1) of the POEO Act. That appeal was determined on 31 August 2010 by a Commissioner of the Court who upheld the appeal in part by varying the notice that had been issued by the Council. Nonetheless, the notice, as varied by the Court, required action on the part of Mrs Gerondal, including the preparation of a plan for removal of materials from the land ( Gerondal v Eurobodalla Shire Council [2010] NSWLEC 1217). 4Mrs Gerondal, who is a self-represented litigant, now appeals from that order pursuant to s 56A of the Land and Environment Court Act 1979 ( the Court Act ). She alleges that in making orders on 31 August 2010, the Commissioner erred in law in a number of respects. Six grounds of appeal are framed in Mrs Gerondal's summons commencing the appeal. 5For reasons that follow, I have determined that none of the grounds relied upon by Mrs Gerondal disclose error of law on the part of the Commissioner in making the orders that she did. Accordingly, the appeal will be dismissed. The relevant statutory provisions 6As I have indicated, the notice initially served upon Mrs Gerondal by the Council and which was the subject of appeal to this Court was one given pursuant to s 96 of the POEO Act. That section relevantly provides as follows: " 96 Preventive action (1) Application of section This section applies when the appropriate regulatory authority reasonably suspects that an activity has been or is being carried on in an environmentally unsatisfactory manner at any premises or by any person (otherwise than at premises). (2) Prevention notices The appropriate regulatory authority may, by notice in writing, do either or both of the following: (a) direct the occupier of the premises, (b) direct the person carrying on the activity (whether or not at premises), to take such action, as is specified in the notice and within such period (if any) as is specified in the notice, to ensure that the activity is carried on in future in an environmentally satisfactory manner. (3) Examples The action to be taken may (without limitation) include any of the following: ... (d) ceasing to carry on or not commencing to carry on an activity, (e) carrying on an activity in a particular manner, ... (h) action with respect to the transportation, collection, reception, re-use, recovery, recycling, processing, storage or disposal of any waste or other substance, (i) preparing and carrying out a plan of action to control, prevent or minimise pollution or waste, (j) reviewing the carrying out of an activity." No issue was raised by Mrs Gerondal as to the capacity of the Council to give the notice that it did as "the appropriate regulatory authority" within the meaning of s 96. 7The provisions of s 96(1) make clear that the foundation for the giving of such a notice is reasonable suspicion on the part of a regulatory authority that an activity is being or has been carried out "in an environmentally unsatisfactory manner". That phrase is defined in s 95 of the POEO Act which relevantly provides as follows: " 95 Meaning of environmentally unsatisfactory manner For the purposes of this Part an activity is carried on in an environmentally unsatisfactory manner if: (a) it is carried on in contravention of, or in a manner that is likely to lead to a contravention of, this Act, the regulations ... or (b) it causes, or is likely to cause, a pollution incident, or (c) it is not carried on by such practicable means as may be necessary to prevent, control or minimise pollution, the emission of any noise or the generation of waste, or (d) it is not carried on in accordance with good environmental practice." 8There is one further regulatory provision that needs to be noticed by way of general background to the present appeal. Although the Commissioner's reserved judgment was delivered on 31 August, the summons commencing the present appeal was not filed until 4 November. Thus, it was filed outside the time stipulated for the commencement of such an appeal: Uniform Civil Procedure Rule ( UCPR ) 50.3. It was therefore necessary that the summons filed by Mrs Gerondal seek leave to appeal as is required by UCPR 50.12. Such an order having been sought and there being neither evidence filed nor submission made on behalf of the Council in opposition to the grant of leave, it is appropriate that leave to appeal be granted. The hearing before the Commissioner 9Mrs Gerondal's appeal pursuant to s 289 of the POEO Act was initially fixed for a conciliation conference pursuant to s 34 of the Court Act. That conference was held on the land on 8 March 2010. It is uncontroversial that in addition to Mrs Gerondal, the Council's solicitor together with two Council officers, Messrs Cummings and Ladmore, also attended the conciliation conference and inspection of the land. It is also uncontroversial that the conference was terminated on that day and the matter fixed for hearing on 23 April 2010 before the Commissioner who had conducted the conciliation conference. 10It seems that on 19 April, that is, four days prior to the date fixed for hearing, the Commissioner conducted a case management hearing by telephone. A direction was then made that the Council serve evidence of Messrs Cummings and Ladmore the following day, namely 20 April. It is said that this evidence, in written form, was forwarded to Mrs Gerondal by email on that date but that hard copies of those documents with their attachments were not provided to Mrs Gerondal until the morning of 22 April. The evidence also indicates that much, if not all of this material, had been provided to Mrs Gerondal previously in response to a freedom of information application made by her. 11Early in the hearing before the Commissioner on 23 April, Mrs Gerondal expressed some concern about the material that she had received from the Council. Some of her complaints go to the grounds of appeal to which I will shortly turn. However, she also complained at the time that she had inadequate opportunity to consider the lengthy statements of Messrs Cummings and Ladmore. Accordingly, she requested and was granted an adjournment for about one and a half hours to enable her better to consider that material. The granting of that adjournment is recorded in the transcript which also reveals that upon resumption of the hearing Mrs Gerondal proceeded to cross examine the witnesses and otherwise conduct her case without any further submission that inadequate time had been afforded to her to deal with the Council's evidence. The Commissioner's orders 12I have already recorded that the appeal was upheld in part. The critical parts of the notice given by the Council are identified in [7] - [9] of the Commissioner's judgment. It is those parts of the notice that were varied on appeal. In fact, those parts were substituted by Order 2 of the Commissioner's orders which is in the following terms: "2. The Notice is varied as follows: Premises to which this notice applies: 19 (Lot 1 DP 806104) Munjeroo Lane, Bingie NSW This notice has been issued under Section 96 of the Protection of the Environment Operations Act because Eurobodalla Shire Council reasonably suspects that an activity has been or is being carried on in an environmentally unsatisfactory manner. Eurobadalla Shire Council hereby directs the person nominated on the notice to take action as detailed below. Perusal of Council records shows no development consent has been sought or issued for the premises to be used for the purpose of a waste facility. Under the Protection of the Environment Operations (POEO) Act 1997 it is an offence to unlawfully transport waste to a place that cannot lawfully be used as a waste facility for that waste and/or use land as a waste facility without lawful authority. Action To Be Taken And Time Periods For Compliance: A. Cease transporting waste to the premises. This action is to be undertaken immediately, effective from 31 August 2010 and is to be ongoing. B. The applicant is to prepare and submit for the council's approval a plan of action for the removal of the waste materials from the property by 15 October 2010. Such a plan is to include a fenced footprint area of 10 x 10 metres to allow selected items only to be stored in an environmentally satisfactory manner that do not have the potential to pollute and a timetable for the removal of all other items. The only exceptions to the 10 x 10 footprint area is the ride-on lawnmower, 2 caravans; the bricks and pavers. The action plan is to provide a timetable for the removal of all other waste material, including unregistered vehicles, from the property that has been placed there without approval and monthly monitoring reports for the staged removal with the first due 1 December 2010 with the removal of all waste to be completed by 30 April 2011. C. The waste material removed is only to be removed to a place which can lawfully accept such waste material." Grounds of appeal 13The grounds of appeal drafted by Mrs Gerondal are not, with respect to her, framed in pellucid language. However, the combination of her drafted grounds and submissions made in support of them enabled me, I think, to understand what is intended by them. 14There is considerable overlap between or among a number of grounds. I therefore propose to deal with grounds 1 to 3 together and also with grounds 4 and 6 as a second general issue that she raises. Ground 5 will be dealt with separately. Appeal grounds 1 - 3: statements of Messrs Cummings and Ladmore, their photographs and s 34 of the Court Act 15Grounds of appeal 1 - 3 were framed in Mrs Gerondal's summons as follows: "1.The Commissioner erred in accepting deemed inadmissible evidence contained in unlawful affidavits that were presented by Local Council Compliance Officers and then by breaching and accepting the inadmissible photographs as evidence in the process of examination of the compliance officers at the hearing of 23 April 2010. 2.The Commissioner erred under section 34, sub-sections (11)(a) and (11)(b) of the Land and Environment Court Act 1979 in accepting 2006 photographs that had been presented in the mediation session of 8 March 2010 that were deemed already inadmissible as a false document and not agreed by all parties to be used beyond the mediation hearing. 3.The Commissioner erred in importing the abovementioned unlawful inadmissible photographs in her written decision of 31 August 2010, and related her section 34 inspection of the land to override the unfair procedure of referring to the abovementioned inadmissible affidavits with the attached photographs as erroneously used as proper evidence." 16Underlying these three grounds of appeal are the provisions of s 34 of the Court Act. It is necessary to consider the relevant provisions of this section as they apply to the manner in which the proceedings were heard and considered by the Commissioner. 17Acting in accordance with s 34(4), the Commissioner terminated the conciliation conference on 8 March. It was not in contest that the parties consented to the Commissioner disposing of the proceedings in accordance with paragraph (b) of subsection (4). In that regard, the subsection relevantly provides: "(4) If no such agreement is reached, the Commissioner must terminate the conciliation conference and: ... (b) if the parties consent to the Commissioner disposing of the proceedings, must dispose of the proceedings: (i) following a hearing, whether held forthwith or later, or (ii) with the consent of the parties, on the basis of what has occurred at the conciliation conference." 18At the commencement of the hearing on 23 April 2010, the Commissioner recorded that both parties had consented to her "adjudicating the matter" under s 34(4) (Tcpt 1:19). She then enquired, making reference to her inspection of the land when conducting the conciliation conference, whether she could take into account "what I have seen at that site inspection or what happened on that occasion" (Tcpt 2: 1 - 2). Mrs Gerondal replied, "I agree to what you saw ... but nothing further than that" (Tcpt 2: 6 and 19 - 20). The Commissioner accepted that limitation (Tcpt 2: 22) and then proceeded with the hearing. It is apparent that she did so in accordance with s 34(4)(b)(i). 19I have earlier recorded the fact that present at the conciliation conference were two Council officers, Messrs Cummings and Ladmore. Their evidence and documents tendered through them is also the subject of these three grounds of appeal. However, before turning to that evidence it is necessary to notice subsection (11) of s 34. It provides as follows: "(11) Subject to subsections (10) and (12): (a) evidence of anything said or of any admission made in a conciliation conference is not admissible in any proceedings before any court, tribunal or body, and (b) a document prepared for the purposes' of, or in the course of, or as a result of, a conciliation conference, or any copy of such document, is not admissible in evidence in any proceedings before any court, tribunal or body." I accept that the exclusion of evidence in accordance with subsection (11) extends to the exclusion of evidence in the hearing of proceedings conducted in accordance with subsection (4)(b)(i) that follows the termination of a conciliation conference first held in those same proceedings ( Taylor v Port Macquarie - Hastings Council [2010] NSWLEC 142). 20At the hearing on 23 April, there were two broad objections voiced by Mrs Gerondal to the evidence sought to be led from the Council officers. The documents setting out the evidence of Messrs Cummings and Ladmore respectively were in the form of an affidavit. Each was signed by but not sworn by either of them before a person authorised to take their oath. This was Mrs Gerondal's first ground of objection to their evidence. It was maintained on the appeal before me. 21The Commissioner made clear to Mrs Gerondal that there was no requirement in the conduct of proceedings of the kind before her for evidence to be provided by sworn affidavits. Indeed, the documents were not accepted as affidavits by the Commissioner but rather as statements of evidence. Each of Mr Cummings and Mr Ladmore gave evidence at the hearing and, after being sworn to give their evidence truthfully, stated that the contents of the statements prepared in affidavit form were true and correct. Mrs Gerondal then proceeded to cross-examine each witness upon the contents of their respective statements and documents identified in or annexed to them. 22I find no irregularity amounting to legal error in the manner in which each of the statements of Messrs Cummings and Ladmore was received into evidence before the Commissioner. 23Annexed to the statement of Mr Cummings were a number of photographs said to have been taken by him in 2006. The use of these photographs was objected to by Mrs Gerondal. Her objection seems to have been founded on two grounds. First, she submitted that as the photographs were shown to the Commissioner during the course of the conciliation conference conducted on the land, it was impermissible to use them at the hearing conducted pursuant to s 34(4)(b)(i), having regard to the provisions of subsection (11) of s 34. Her second objection was that the photographs had been taken during unlawful entry upon the land and thus must be excluded. This latter ground is the subject of ground 5 of the appeal before me which will be addressed later in these reasons. 24The photographs to which Mrs Gerondal objected apparently showed a number of items located on the land which were the same items that had been seen when inspecting the land on 8 March 2010. In advancing her first ground of objection she challenged the accuracy of the evidence given as to the date upon which the photographs were taken. In the course of her submissions to me, she referred to these photographs as being "deemed already inadmissible as a false document". The assertion that the document was false was apparently founded upon the challenge made by Mrs Gerondal to the accuracy of the statement made by Mr Cummings as to the date upon which the photographs were taken by him. 25For these reasons it is submitted by Mrs Gerondal that the evidence was received by the Commissioner in breach of s 34(11). So to do, so it is submitted, demonstrates error of law. 26Mrs Gerondal also complains in her written submissions that subsection (11) of s 34 was breached by evidence of "site inspection details" given at the hearing before the Commissioner, such evidence being given "during cross examination of the Council officers Rick Cummings and Nathan Ladmore." The only cross-examination undertaken of each of these witnesses was by Mrs Gerondal. I have read the transcript of evidence in chief given by each of these witnesses and neither of them was asked any question during that examination about any aspect of the inspection of the land on 8 March. 27Mrs Gerondal's reliance upon s 34(11) as founding error on the part of the Commissioner is, with respect, misconceived. The debate as to when the photographs in question were taken is a question of fact and does not raise any question of law. On the evidence adduced before the Commissioner and by reference to her judgment, they were clearly accepted by her as photographs that were taken in or about 2006 and therefore were not taken "for the purposes of, or in the course of, or as a result of" the conciliation conference. Their admission into evidence did not therefore offend the provisions of subsection (11)(b) of s 34. 28Moreover, the photographs do not appear to have been evidence that was material to the determination and orders made by the Commissioner. Relevantly, she said (at [32]): "32 Based on the evidence, in particular the site inspection in March this year this confirms to me the extremely large amount of material that has been accumulated and placed on the land. From the statements of the Council Officers and their oral evidence in Court the items and material have been in more or less the same location since 2006." 29It is clear from this statement that the Commissioner accepted the evidence of Mr Cummings that he had seen various items on the land in 2006 and which remained on the land to the present time. Whatever may have been the basis of challenge to the date of Mr Cummings photographs, his statements of what he saw in 2006 is evidence which the Commissioner was entitled to accept. In an appeal that is restricted to reviewing a decision for legal error, findings of fact that are disputed by an appellant are not amenable to such review. 30Related to the challenge just addressed is Mrs Gerondal's claim that the Commissioner erred by relying upon observations made in the course of inspecting the land on 8 March 2010. So much is reflected in ground 3 of the appeal grounds. 31Again, this basis of challenge cannot be sustained. As is revealed by the passages of transcript to which I have earlier referred (at [18]), Mrs Gerondal was invited to indicate whether the Commissioner could take into account observations she made during the course of the site inspection on 8 March. In terms, Mrs Gerondal agreed that this could be done. In the face of that agreement, reliance upon the Commissioner's site observations, as reflected in [32] of her judgment, could not be criticised. 32A further related submission of Mrs Gerondal is that the Commissioner erred by posing the question that she did at the outset of the hearing, enquiring of the parties as to whether they agreed to her use of observations made when inspecting the land on 8 March. Mrs Gerondal's present complaint really is that the alternate provisions contained in paragraphs (i) and (ii) of s 34(4)(b) were not drawn to her attention. Her submission is that the Commissioner having elected to proceed, with the agreement of the parties, pursuant to s 34(4)(b)(i), the Commissioner was not entitled to proceed or rely upon any step that could have been taken had the parties simply invited determination of the appeal on the basis of what had occurred at the conciliation conference, as was contemplated by S 34(4)(b)(ii). 33I do not accept that the provisions should be read in this manner. Once a Commissioner has, with the consent of the parties, determined to hear a matter following termination of a conciliation conference, that Commissioner is entitled to question the parties, seeking such concessions as may be appropriate to facilitate the efficient and expeditious disposal of the proceedings. So much follows from the provisions of both s 38(1) of the Court Act and s 56 of the Civil Procedure Act 2005. The fact that a Commissioner poses a question seeking a concession does not compel either party to accede to it. Relevantly, there is nothing in the transcript of 23 April which indicates to me that the Commissioner, in some way, suggested that Mrs Gerondal was required to agree that the Commissioner could use observations made on the site inspection for the purpose of understanding the evidence and ultimately making her decision. The fact that Mrs Gerondal was sufficiently astute and confident to give a qualified or circumscribed response to the Commissioner's question supports my conclusion in this regard. 34Finally, in addressing these grounds of appeal, Mrs Gerondal referred on a number of occasions, particularly in her written submissions, to the hearing before the Commissioner as one being conducted under s 34A of the Court Act. This submission was made in the context of seeking to sustain the argument that the Commissioner should not have relied upon her observations made on 8 March for the purpose of considering the evidence given by Messrs Cummings and Ladmore. 35Reference by Mrs Gerondal to s 34A as being the provisions pursuant to which the hearing on 23 April was conducted is incorrect. As subsection (1) of that section makes clear, it operates only in respect of the proceedings identified in paragraphs (a) to (f) of the subsection. An appeal to the Court pursuant to s 289 of the POEO Act is not there identified. As I have earlier indicated, the proceedings before the Commissioner were being conducted pursuant to s 34(4)(b)(i) of the Court Act. 36For all of these reasons, none of appeal grounds 1, 2 or 3 stated in Mrs Gerondal's summons filed on 4 November 2010 is sustained. Appeal ground 5: evidence unlawfully obtained 37Appeal ground 5 is framed as follows: "5.The Commissioner erred in not accepting the provision of section 197 of the Act and the existence of residential zoning and the occupation of a habitable caravan under section 77 of the Local Government Act 1993." 38The essence of Mrs Gerondal's argument in support of this ground of appeal is that evidence of observations made by Messrs Ladmore and Cummings should have been rejected, as should have been the 2006 photographs, because all of this evidence was obtained unlawfully. It was submitted that the unlawfulness is founded upon unauthorised entry onto the land, such entry being contrary to s 197 of the POEO Act. That section provides: " 197 Entry into residential premises only with permission or warrant This Part does not empower any authorised officer to enter any part of premises used only for residential purposes without the permission of the occupier or the authority of a search warrant under section 199." 39There are a number of responses that are properly made to Mrs Gerondal submissions. First, so far as the photographic evidence about which Mrs Gerondal complained is concerned, it was not material to the Commissioner's ultimate finding. I have already referred to the observations made at [32] of the Commissioner's judgment. In the context of the claimed use of unlawful evidence, the Commissioner continued at [33]: "33.The applicant expressed concern about entry to her property by trespass and the lawfulness and authenticity of the photographs taken by the council offices [sic] including the inconsistency with the sets of printouts with a date imprinted within the frame on some and without on others. However, based on the provisions of the POEO Act I accept Mr Warren's submission that the Council Officers have powers of entry under the POEO Act. However, I do not need to rely on the photographs to conclude that there is an extraordinary and significant amount of material stored on the property." 40Secondly, the findings of fact made by the Commissioner would not support the contention that s 197 was breached when Council staff entered upon the land. Pursuant to s 196(1)(c) of the POEO Act, an authorised officer has a right of entry to "any other premises" at any reasonable time. It was not disputed that each of Messrs Cummings and Ladmore were authorised officers under the Act. Importantly, the limitation upon the power of entry expressed in s 197 is upon "any part of premises used only for residential purposes" (emphasis added). The description of the use of the land contained in the Commissioner's judgment as including use as a waste facility gainsays any suggestion that the only use of Mrs Gerondal's land was for residential purposes. 41While the term "premises" is defined in the Dictionary to the POEO Act to include - "(a) a building or structure, or (b) land or a place (whether enclosed or built on or not)" that definition must yield to context: s 6 Interpretation Act 1987. 42The provisions of s 197 are to be contrasted with the provisions of s 111, a section contained in the same Chapter of the POEO Act as that in which s 96 is found. Section 111 relevantly provides as follows: " 111 Power to enter land (1) A regulatory authority or public authority may, by its employees, agents or contractors, enter any premises at any reasonable time for the purpose of exercising its functions under this Chapter. (2) For the purpose of entering or leaving any such premises, the power conferred by this section extends to entering other premises. ... " 43When the provisions of ss 111, 196 and 197 are considered together, it seems to me that the limitation expressed in s 197 is, relevant to present circumstances, confined to the building, structure or particular place physically used to provide residential accommodation. It may extend to the immediate curtilage of any such building structure or place but would not extend to the entire allotment or parcel of land owned by Mrs Gerondal. 44The purpose of the section is to avoid, in the absence of a warrant, intrusion upon privacy ordinarily expected to be enjoyed within the confines of that building or place physically used for residential occupation. Entry upon the land on which that building or place is located is not, so it seems to me, proscribed by the section. So much is apparent from the use of the adverb "only" in the section. 45There is no dwelling house erected on Mrs Gerondal's land. Her claim that s 197 was breached turns upon a submission that a caravan located on the land either had been or was capable of being used to provide her and her husband with accommodation. However, the Commissioner found, as a fact, that the caravans located on the land were not in a condition so as to permit human occupation (judgment at [43]). Even if this finding of fact is perverse, it does not constitute an error of law ( Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156). 46Further, the Commissioner found that Mrs Gerondal's land was being used as a waste facility, albeit a use for which no relevant consent or approval had been granted (judgment at [35]). This finding of fact, coupled with the finding identified in the preceding paragraph of this judgment each determined that the provisions of s 197 were not engaged. 47Mrs Gerondal also sought support for her argument in the fact that the land enjoyed a rural residential zoning under the applicable local environmental planning instrument. This circumstance is irrelevant. The proscription upon entry of residential premises contained in s 197 is directed to use of existing premises, not upon the capacity of the land to be used for residential purposes in accordance with a planning instrument. 48Finally, the submission made by Mrs Gerondal assumes that if the evidence of the Council officers was obtained unlawfully then such evidence would, by dint of that fact, be inadmissible. That assumption is not well-founded. 49First, in conducting the hearing before her, the Commissioner was not bound by rules of evidence (s 38(2) of the Court Act). Secondly, it does not follow either at common law or under the provisions of the Evidence Act 1995 that evidence improperly obtained or obtained in contravention of s 197 would thereby be inadmissible. There is a discretion in the Court to exclude evidence obtained in such circumstances, rather than there being a compulsion to reject it (s 138 of the Evidence Act ). While, having regard to the manner in which the matter was argued before her, the Commissioner was not called upon to exercise the discretion in relation to this evidence, it is necessary to identify the falsity of the premise upon which Mrs Gerondal sought to sustain her argument. 50For all these reasons, ground 5 of the grounds of appeal is not sustained. Appeal grounds 4 and 6: the terms of the Commissioner's order are not properly referable to the provision of the POEO Act 51Grounds of appeal numbered 4 and 6 are framed in the following terms: "4. The Commissioner erred in making the Order not specifically identifying individual items causing or likely to cause pollution as breaching section 96 of the Protection of the Environment Operations Act 1997 but erroneously summarily directing her Order to section 144 of the Act regarding all items as waste, which is outside the terms of reference of the original proceeding under section 289 of the Act. ... 6. The Commissioner erred in directing the applicant to fence or cordoned off an area of a footprint of 10 x 10 metres to be approved by the Local Council, and the manner in which the materials are stored is to be in an environmentally satisfactory manner that are likely to cause environmental concern or a pollution incidence, has not been clarified in detail to all parties in breach of section 96 clause 3 of the Act." 52The submission of Mrs Gerondal in support of these grounds is, on the one hand, that the Commissioner exceeded the jurisdiction vested in her by making a finding that the land was being used as a waste facility within the meaning of the POEO Act and on the other hand that she had not complied with the requirements of s 96 in framing the order that was ultimately made. Both bases of challenge are misconceived. 53At the commencement of her judgment, the Commissioner identified the statutory provisions relevant to her determination. Included among the provisions referred to or extracted, she identified s 144 of the POEO Act. That section renders it an offence for the owner or occupier of land to use that land as a waste facility without lawful authority so to do. The Commissioner also cited the definition of "waste" found in the Dictionary to the POEO Act. 54Having cited those statutory provisions, the Commissioner then found that the material on Mrs Gerondal's land and which was the subject of the Council's notice was "waste" (at [34]). She also found that by reason of "the accumulation and the extraordinary amount of material/waste" on the land, it was being used as a waste facility without approval (at [35]). 55By reason of the statutory references and findings made, Mrs Gerondal submits that the Commissioner exceeded her jurisdiction. According to the submission, a determination that s 144 of the POEO Act had been breached could only be made by a judge exercising Class 5 of the Court's jurisdiction. The submission is unsound. 56The condition precedent to the giving of a notice under s 96 of the POEO Act is a reasonable suspicion that an activity has been or is being carried out "in an environmentally unsatisfactory manner": s 96(1). The latter condition is satisfied if the activity is carried on in contravention of, or in a manner that is likely to lead to a contravention of, the Act: s 95(a). It was therefore entirely appropriate for the Commissioner to identify the provision or provisions of the Act which were being or were likely to be contravened by the storage of materials on Mrs Gerondal's land. 57The finding that those materials constituted waste was a precursor to a finding that the land was being used as a waste facility within the meaning of the Act. Her findings were no more nor no less than was required to found the making of the order that she did. To the extent that the notice as varied by the Commissioner contained references to offences under the POEO Act of unlawfully transporting waste and use of land as a waste facility (see [12] above), she was doing no more than including a preamble in the notice to found its operative parts which directed the action to be taken by Mrs Gerondal. Her actions in this regard were entirely within the scope of the jurisdiction conferred by s 17(a) of the Court Act to hear and dispose of an appeal brought to the Court pursuant to s 289 of the POEO Act. 58At [7] I have set out the provisions of s 95 of the POEO Act defining the expression "environmentally unsatisfactory manner" when used in s 96. It will be noticed that each of the paragraphs in s 95 are separated by the disjunctive "or". That is, it will be sufficient to find that an activity is carried on in an environmentally unsatisfactory manner if, on the facts found, any one of paragraphs (a), (b), (c) or (d) is satisfied. Clearly, the Commissioner found that paragraph (a) was satisfied by determining that the land was being used as a waste facility in contravention of s 144. That finding was sufficient to sustain the order ultimately made by the Commissioner. 59No doubt by reason of the manner in which the evidence was given and the case argued, the Commissioner went on to consider the evidence as it related to the other paragraphs of s 95. It is a finding that the Commissioner made when so doing that Mrs Gerondal criticises and uses to sustain ground 5 of her grounds of appeal. In her submission she places considerable focus upon evidence given by Messrs Cummings and Ladmore as to the existence of acid sulfate soils on the land and the interaction of those soils with the stored materials as a basis for asserting likely pollution from the land. Mrs Gerondal points to the absence of any "scientific evidence" supporting the conclusions drawn by those witnesses. 60These are questions of fact, the determination of which is not reviewable on appeal confined to error of law. Moreover, the Commissioner did not found her decision upon evidence given as to the existence of acid sulfate soils on the land. Indeed, such a finding was disavowed, as is apparent from [37] where the Commissioner said: "37. From the site inspection it was also evident that many of the items had been subject to weathering and I also observed many metal objects including old unregistered vehicles. The fact that there is no scientific evidence of pollution or environmental affects is not the test. Similarly the fact that there may be an absence of acid sulfate soils or ecologically endangered communities are not the relevant tests. The test in s 95 does not necessarily require proof/scientific evidence of a pollution incident but it is sufficient if it is 'likely to cause' or 'is not carried on ... to prevent, control or minimise pollution'. I find that the activity is being carried on in an environmentally unsatisfactory manner." 61Paragraph B of Order 2 made by the Commissioner on 31 August 2010 makes reference to the storage of selected items "that do not have the potential to pollute". This is the only reference that the Orders makes to pollution, no doubt intending to reflect the provisions of both s 96(3)(i) and s 95(b). 62The relevant factual finding in this regard, within the reasons for judgment, would seem to be that contained in [40] where, having referred to the proximity of the land to "sensitive coastal lands", the quantity of material constituting waste stored on the land and the observation of the weathering, corrosion or rusting of that material, the Commissioner concluded that its storage was likely to cause a pollution incident and was therefore an activity being conducted in an environmentally unsatisfactory manner. This is a finding of fact that is not amenable to challenge in this appeal. 63Further, each of grounds of appeal 4 and 6 seeks to challenge, as a matter of law, the manner in which the Commissioner has framed Order 2 of her orders. It will be remembered that Order 2 essentially recasts the notice given by the Council under s 96 of the POEO Act. 64The essential requirements for such a notice are found in subsection (2) of s 96. Relevantly, the subsection requires that the notice specify the action to be taken by Mrs Gerondal and nominate the time within which that action is to be taken. The purpose to be served by the nominated action is to ensure that upon compliance, the activity will in future be carried on "in an environmentally satisfactory manner." 65The requirements identified in s 96(2) are to be read in conjunction with provisions of subsection (3) of the same section. Having regard to the manner in which Order 2 made by the Commissioner was framed, paragraphs (d) and (i) of s 96(3) are of particular relevance. 66As will be apparent from the terms of Order 2, relating to the action to be taken by Mrs Gerondal, it is in two parts. Part A requires the immediate cessation of transportation of waste to the land. That order "specifies" action to be taken and is sanctioned by subsection (3)(d) of s 96. 67The second element of paragraph B of Order 2 is the preparation of a plan for submission to and approval by the Council. The general terms which such a plan should contain are stated, including the time by which compliance with the plan, as approved, should be achieved. The specification of a requirement to prepare such a plan is sanctioned by s 96(3)(i) of the POEO Act. 68By requiring the submission of a plan, including identification of materials stored and to be removed, as the case may be, the Commissioner was affording to Mrs Gerondal the opportunity to reach agreement with the Council as to those items that, although constituting waste, may remain, provided they can be contained in the dimensioned area nominated and do not have the propensity to pollute. An understanding of the materials constituting waste is evident from the preamble to the action section of the notice whereby it is made tolerably clear that any item stored on the property and meeting the definition of "waste" within the meaning of the POEO Act will be caught by it. As the judgment also makes clear, the fact that an item stored on the property may be processed, recycled, re-used or recovered does not prevent it from being waste [at [34]). 69The complaint made by Mrs Gerondal is that Order 2 does not sufficiently identify the items to be removed. Notwithstanding this submission, Mrs Gerondal's written submission indicates that the Order would require "the removal of most items from the block". However, Order 2 does not, in terms, require immediate removal of all items comprehended by the expression "waste" but rather requires Mrs Gerondal to provide to the Council a plan, indicating those items to be removed and those to be retained, with a capacity to reach agreement in that regard. 70The claim by Mrs Gerondal that the terms of Order 2 made by the Commissioner are in breach of s 96(3) was articulated in argument only to the extent of indicating that she was unsure as to which items should be nominated for removal and which items should be nominated as being retained within the 10 x 10 footprint area. I have already indicated the manner in which this requirement may be interpreted consistent with Order 2. However, as I have indicated, Order 2 made by the Commissioner, requiring the submission of a plan, is an order of a kind contemplated by s 96(3). The fact that Mrs Gerondal may feel uncertain as to what she is required to include within the required plan does not give rise to an error of law in the making of that Order. To the extent that there is no agreement between Mrs Gerondal and the Council as to the manner in which Order 2 is to be implemented, procedures are available to have that uncertainty addressed. An appeal limited to a question of law is not the vehicle by which that uncertainty is to be resolved. 71For these reasons, the terms in which the Commissioner framed her Orders are not erroneous in point of law. Conclusion 72For the reasons that I have indicated, none of Mrs Gerondal's grounds of appeal are sustained. It is therefore necessary that her appeal be dismissed. Orders 73Accordingly, the orders that I make are as follows: 1. Leave to appeal granted. 2. Appeal dismissed. 3. The applicant is to pay the respondent Council's costs of the appeal. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 May 2011