The Australasian wine industry and the physical environment: some recent Australian observations: Part 1 - Smoke taints and spray drifts

1. Smoke taint

1.1 Southern Properties (WA) Pty Ltd v Ex. Dir Dept of Conservation and Land Management WASC 2010

• Manjimup/Pemberton Warren Region
• 926,000 ha State Forest
• 80 years of prescribed burns
• 1961 Dwellingup fires – Royal Commission

1.2 Fire risk

• Sources – humans 90%, lightning 10%
• Fuels – vegetation, dry matter, tree type
• Weather – summer drought, prevailing winds

1.3 Management

• Government policy 200,000 ha/year to be burnt
• Fallen behind in 2003 and backlog of 452,000 ha
• Limited opportunities Karri Forest burning

1.4 Experience up to 2001

• No reports of smoke/ash affecting vineyards/wine to Department of Environment and Conservation (D.E.C.) pre 2001
• 2001 fires near Barwick vineyards
• Resultant wines rejected August 2001

1.5 Studies

• AWRI Report 2003
• Studies 2007, 2008 confirmed that smoke can contaminate vines and berries

1.6 2004 fire

• Notification by D.E.C. of burn to take place on 31 March (favourable conditions)
• Edge burn 31 March
• Core burn 1 April
• Winds changed
• Smoke covered the vineyard for 7 days
• Ash for 3 days

1.7 2006 injunction proceedings

• Notification by D.E.C. of a further burn to take place in February 2006
• Injunction sought and rejected:
  • Damages adequate remedy
  • Public interest

1.8 2005 proceedings

• Damages (quantum agreed)
• Injunction to restrain lighting fires until after harvest each year
• Causation not disputed

1.9 2009: the hearing

Plaintiff's case:

• Duty of care not to harm Plaintiff's vineyards
• Heightened due to the dangerous nature of the activity

1.10 Decision in 2005 proceedings

Justice Murphy:

• The fire was not the product of negligence
• Strategy/policy sanctioned by legislation
• No common law duty owed by Defendant to Plaintiff
• Defendant did have regard to Plaintiff's grapes in its planning
• Defendant had no duty of care to avoid smoke taint
• A reasonable person in the position of the Defendant would not have deferred the burn

2. Spray drift

2.1 Landsdale Pty Ltd v Moore WASC AC 2009

• Defendant a vineyard operator
• Plaintiff farms marron (freshwater crustaceans)
• Plaintiff alleges that in the periods December 2002 to March 2003 and October 2004 to March 2005 escape of chemicals sprayed on the vineyard caused marron deaths on its property
• Plaintiff claims breach of Defendant's duty of care to prevent chemical sprays escaping causes losses of $8m
• Defendant denies negligence and maintains that spraying has been done in accordance with guidelines, by a skilled operator. Did not admit that winds carried spray and says that even if it did the amount that drifted would not cause the damage alleged
• Interlocutory Procedural issue before the Court – order that a single trial be held on questions of liability and damages

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