Altona Properties Pty Ltd v Environment Protection Authority
[2021] VSC 262
•14 May 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 02152
| ALTONA PROPERTIES PTY LTD (ACN 078 616 654) | Plaintiff |
| v | |
| ENVIRONMENT PROTECTION AUTHORITY | Defendant |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 14 May 2021 |
CASE MAY BE CITED AS: | Altona Properties Pty Ltd v Environment Protection Authority |
MEDIUM NEUTRAL CITATION: | [2021] VSC 262 |
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JUDICIAL REVIEW – Consent orders sought - Procedural fairness – Decision of EPA to refuse to determine that clean-up of polluted groundwater to the extent practicable had been achieved at the plaintiff’s site – Defendant taking into account information material to its decision not brought to the plaintiff’s attention – Plaintiff not given an opportunity to respond to the information - Decision quashed – Environment Protection Act 1970.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Norton Rose | |
| For the Defendant | Environment Protection Authority |
HIS HONOUR:
The parties in this judicial review proceedings have filed a minute of consent orders disposing of the proceeding and have filed a Joint Memorandum as required by Practice Note SC CL 9 to justify those orders. The orders that they seek are that:
(a) The decision of a delegate of the Defendant, made on 16 January 2020, to refuse to determine that clean-up of polluted groundwater to the extent practicable (CUTEP) has been achieved at the land situated at 585-609 Kororoit Creek Road, Altona, is quashed.
(b) The Defendant pay the plaintiff’s costs of and incidental to this proceeding, to be taxed in default of agreement.
Having considered the memorandum, I consider it appropriate to make those orders, but I will now set out parts of the parties’ memorandum to provide an explanation of why I do so.
The plaintiff (Altona Properties) is the registered proprietor of the land situated at 585-609 Kororoit Creek Road, Altona (the Site).[1]
[1]Affidavit of Bryan Chadwick dated 12 May 2020 at [6] (Chadwick Affidavit).
Altona Properties engaged an EPA-appointed auditor (the Auditor) to undertake an environmental audit of the Site in accordance with section 53X of the Environment Protection Act 1970 (Vic) (the EP Act).
On 10 September 2018, the Auditor made a submission to the EPA (the CUTEP Submission). By that submission, the Auditor sought the EPA’s determination, in accordance with clause 13.6 of Publication 759.3 – Environmental auditor (contaminated land): Guidelines for issue of certificates and statements of environmental audit (the Environmental Auditor Guidelines),[2] as to whether clean-up of polluted groundwater to the extent practicable (CUTEP) had been achieved at the Site.
[2]Exhibit MK-1 to the Affidavit of Maria Koukoulas affirmed 19 February 2021.
On 16 January 2020, a delegate of the Board of the EPA decided to refuse to determine that CUTEP had been achieved at the Site (the CUTEP Decision).
On 13 March 2020, in response to a request made by Altona Properties, reasons for that decision were provided (the Reasons).[3]
[3]Chadwick Affidavit at paragraph 45; Exhibit BC-17 to Chadwick Affidavit.
Relevantly, the Reasons contained a statement about the EPA’s concerns in relation to groundwater clean-up previously attempted at the Site, and the feasibility of further clean up. The EPA said that one of its main concerns, in this regard, was that “[o]ther CUTEP submissions indicate there are improved and/or newer technologies now available to address CHCs in groundwater, beyond the ones available and used at the site back in 2008”. The EPA did not further elaborate in the Reasons on the nature of those other CUTEP submissions.
On the evidence before the Court:
(a) no CUTEP submissions were brought to the attention of Altona Properties or the Auditor, before the CUTEP Decision was made, in connection with the EPA’s assessment of the feasibility of further groundwater clean-up at the Site;
(b) the EPA did not furnish either Altona Properties, or the Auditor, with the information contained in the “other CUTEP submissions” to which the EPA referred in the Reasons; and
(c) the EPA did not give Altona Properties or the Auditor an opportunity to be heard in respect of that information.
By an originating motion filed on 12 May 2020 (and later amended on 21 October 2020), Altona Properties sought judicial review of the CUTEP Decision. Altona Properties advanced several grounds of challenge, and the primary relief sought is an order in the nature of certiorari quashing the CUTEP Decision.
The parties agree that the CUTEP Decision should be quashed on one of the grounds advanced by Altona Properties: namely, that the delegate fell into jurisdictional error by failing to afford Altona Properties procedural fairness in making the CUTEP Decision in the manner described at paragraphs 12 to 16 below.[4]
[4]There is no agreement between the parties concerning the remaining grounds of challenge.
Jurisdictional error
In making the CUTEP Decision, the EPA was required to afford Altona Properties procedural fairness.
On the evidence before the Court, it can be inferred that the other CUTEP submissions, to which the EPA referred in the Reasons, contained credible and relevant information that was significant to the decision that the delegate reached as to CUTEP at the Site.
It follows that procedural fairness required the EPA to bring to the attention of Altona Properties the nature and content of the information contained in those other CUTEP submissions, and to provide Altona Properties with an opportunity to respond to the information contained in those submissions, before the decision was made to refuse to determine that CUTEP had been achieved at the Site.[5]
[5]See, e.g., Kioa v West (1985) 159 CLR 550 at 587 (Mason J); Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at [83].
The EPA did not do so. Accordingly, in forming the opinion that CUTEP had not been achieved at the Site, the EPA denied Altona Properties procedural fairness. The EPA accepts that that error was material: there is a realistic possibility that the EPA’s decision could have been different if it had afforded Altona Properties procedural fairness.
Since the EPA denied Altona Properties procedural fairness and that error was material, the EPA’s denial vitiated its decision to refuse to determine that CUTEP had been achieved at the Site.
Accordingly, the Court should make an order in the nature of certiorari quashing the CUTEP Decision.
Costs
The parties agree that the EPA should pay Altona Properties’ costs of and incidental to this proceeding, to be taxed in default of agreement.
Conclusion
I consider that it is appropriate to make the orders that the parties seek.
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