Angas Securities Ltd v Chief Executive Officer, Department of Water and Environmental Regulation - [2022] WASC 134

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   ANGAS SECURITIES LTD -v- CHIEF EXECUTIVE OFFICER, DEPARTMENT OF WATER AND ENVIRONMENTAL REGULATION [2022] WASC 134
CORAM:   ALLANSON J
HEARD:   8 APRIL 2022
DELIVERED          :   29 APRIL 2022
FILE NO/S:   CIV 1763 of 2021
BETWEEN:   ANGAS SECURITIES LTD
Applicant
AND
CHIEF EXECUTIVE OFFICER, DEPARTMENT OF WATER AND ENVIRONMENTAL REGULATION
Respondent
AUSVISION RURAL SERVICES PTY LTD
Other Party

Catchwords:

Practice and procedure - Judicial review - Mandamus - Where parties posed preliminary question for determination as to existence of public duty

Administrative law - Environmental protection - Where Environmental Protection Act 1986 (WA) confers power on respondent to suspend or revoke licence for prescribed premises licensed under pt V of the Act on grounds including breach of licence conditions - Whether respondent under an implied duty to consider the exercise of that power

Legislation:

Environmental Protection Act 1986 (WA)
Environmental Protection Regulations 1987 (WA)

Result:

Preliminary question answered no

Category: B

Representation:

Counsel:

Applicant	:	GR Donaldson SC & TC Russell
Respondent	:	PD Spragg & MI Olds
Other Party	:	No appearance

Solicitors:

Applicant	:	Glen Mcleod Legal
Respondent	:	State Solicitor's Office
Other Party	:	No appearance

Case(s) referred to in decision(s):

Animals' Angels e.V. v Secretary, Department of Agriculture [2014] FCA 398
Animals' Angels e.V. v Secretary, Department of Agriculture [2014] FCAFC 173; (2014) 228 FCR 35
Commissioner of State Revenue (Vict) v Royal Insurance Australia Ltd (1994) 182 CLR 51
Julius v Lord Bishop of Oxford (1880) 5 App Cas 214
Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997
Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330
Roe v Director General, Department of Environment and Conservation [2011] WASC 57(S)
Shrimpton v The Commonwealth (1945) 69 CLR 613
Yasmin v Attorney-General (Cth) (2015) 236 FCR 169; [2015] FCAFC 14

ALLANSON J:

The applicant, Angas Securities Ltd, has applied for judicial review of conduct of the respondent, described as 'refusal to perform duty and exercise power to enforce the conditions of a licence issued under Part V of the Environmental Protection Act 1986 (WA)'. The respondent is the Chief Executive Officer of the Department of Water and Environmental Regulation, the department of the Public Service of the State through which the Act is administered.
On 9 February 2022, I made orders for the hearing and determination of a preliminary question agreed by the parties:
Can each, or any, of sections 59A(1), 73A and 73(la) of the Environmental Protection Act 1986 impose upon the Respondent a duty to consider the exercise of the respective powers conferred by those sections, the performance of which may be the subject of an order of this Court?
The preliminary question was argued on 8 April 2022.
Unless stated otherwise, references in these reasons to legislation are to the Environmental Protection Act.

The facts

The following facts and contentions are taken from the amended application.
The applicant holds land located in the suburb of Wellard.
The boundary of the applicant's land is approximately 400 metres northwest of premises operated by Ausvision Rural Services Pty Ltd as a livestock saleyard or holding pen (the Premises).
Ausvision holds a licence granted by the respondent pursuant to s 57(3) of the Environmental Protection Act for the Premises. The licence expires on 15 March 2033.
Condition 12 of the licence imposes an obligation on Ausvision, as the licence holder, to 'ensure that odour emitted from the Premises does not unreasonably interfere with the health, welfare, convenience, comfort or amenity of any person who is not on the Premises'.[1]
[1] The application contains an error in alleging that the obligation is on the respondent.
The applicant contends that Ausvision has contravened and continues to contravene condition 12, and odour emitted from the Premises unreasonably interferes with the convenience, comfort and amenity of the applicant as holder of the applicant's land.
The applicant further contends that, by reason of s 58(1), by contravening and continuing to contravene condition 12, Ausvision has committed and continues to commit offences.
By reason of the contraventions of condition 12, the respondent has power under the Act to:
(1)revoke or suspend Ausvision's licence pursuant to s 59A(1);
(2)issue a prevention notice to Ausvision pursuant to s 73A ; and
(3)take action to control the odour emission from the Premises, pursuant to s 73(1a).
The applicant contends that the respondent is aware Ausvision is contravening condition 12. Alternatively, the applicant contends that the respondent knows that testing has been conducted of the emissions of odour from the Premises; knows of complaints relating to odour and flies from the Premises from land owners nearby to the applicant's land; and knows that Ausvision's Annual Audit Compliance Report for 2020‑2021 identifies a breach of condition 12, and further complaints made between 5 and 9 March 2021.
The applicant claims that, by reason of her awareness or knowledge, the respondent has a duty to consider the exercise of her powers, and has failed and continues to fail to consider the exercise of her powers.
The applicant did not press the argument with regard to failure by the respondent to exercise her powers under s 73A and s 73(1a). The court is now concerned only with the applicant's claim that imposes a duty on the respondent by the Act to consider the exercise of the power conferred on her by s 59A.
Finally, and alternatively, the applicant claims that, by a letter dated 2 December 2021, the respondent purported to discharge her duty and consider the exercise of her discretion, but there was a constructive failure to discharge the duty.
The applicant seeks:
(1)an order having the same effect as a writ of mandamus, compelling the respondent to determine whether Ausvision has and continues to breach condition 12 and, if she determines that the condition has been breached, exercise the powers under s 59A(1), s 73A , and s 73(1a);
(2)a declaration that the respondent has failed to perform her duty to determine whether Ausvision has and continues to breach condition 12; and/or
(3)a mandatory injunction.

The legislative scheme

The long title of the Act is:
An Act to provide for an Environmental Protection Authority, for the prevention, control and abatement of pollution and environmental harm, for the conservation, preservation, protection, enhancement and management of the environment and for matters incidental to or connected with the foregoing.
Section 3 sets out definitions. Relevantly:
beneficial use means a use of the environment, or of any portion thereof, which is —
(a)conducive to public benefit, public amenity, public safety, public health or aesthetic enjoyment and which requires protection from the effects of emissions or of activities referred to in paragraph (a) or (b) of the definition of environmental harm in section 3A(2); or
(b)identified and declared under section 35(2) to be a beneficial use to be protected under an approved policy;
emission means —
(a)discharge of waste; or
(b)emission of noise, odour or electromagnetic radiation; or
(c)transmission of electromagnetic radiation;
environment, subject to subsection (2), means living things, their physical, biological and social surroundings, and interactions between all of these;[2]
environmental value means —
(a)a beneficial use; or
(b)an ecosystem health condition;
prescribed premises means premises prescribed for the purposes of Part V;
protection, in relation to the environment, includes conservation, preservation, enhancement and management thereof;
[2] By s 3(2), 'In the case of humans, the reference to social surroundings in the definition of environment in subsection (1) is a reference to aesthetic, cultural, economic and other social surroundings to the extent to which they directly affect or are affected by physical or biological surroundings'.
Further relevant definitions relating to pollution and environmental harm are in s 3A:
pollution means direct or indirect alteration of the environment —
(a)to its detriment or degradation; or
(b)to the detriment of an environmental value; or
(c)of a prescribed kind,
that involves an emission.
environmental harm means direct or indirect —
…
(b)alteration of the environment to its detriment or degradation or potential detriment or degradation; or
(c)alteration of the environment to the detriment or potential detriment of an environmental value; or
(d)alteration of the environment of a prescribed kind;
The Act confers different functions and powers on the Environmental Protection Authority and the Department. The functions and powers relating to environmental regulation in pt V are conferred on the CEO and the Department, subject to where a proposal has been referred to the Authority under pt IV.
Part V div 1 provides for offences of causing or allowing pollution and causing or allowing serious or material environmental harm.
By s 50D:
(1)In this section —
authorisation means a licence, permit, approval or exemption granted, issued or given under the regulations;
conduct affecting the environment means —
(a)causing or allowing anything to be discharged, emitted or transmitted; or
(b)causing or allowing the nature or volume of anything discharged, emitted or transmitted to be changed; or
(c)conduct, or an operation or activity, that is a potential cause of pollution or environmental harm; or
(d)causing or allowing conduct, or an operation or activity, that is a potential cause of pollution or environmental harm.
(2)If the regulations require an authorisation to be held for conduct affecting the environment, a person who contravenes the regulations by —
(a)engaging in that conduct without there being an authorisation in force in relation to it; or
(b)engaging in that conduct in contravention of a condition to which an authorisation is subject,
commits an offence.
Division 3 provides for prescribed premises, works approvals and licenses.
Schedule 2, which sets out matters in respect of which regulations may be made, specifically authorises regulations prescribing any premises or class of premises as prescribed premises for the purposes of pt V. Regulation 5 and sch 1 of the Environmental Protection Regulations 1987 prescribe classes of premises for the purposes of pt V of the Act.
A person may only carry out any work which causes premises to become, or to become capable of being, prescribed premises in accordance with a works approval.[3] The operation of any trade or process carried on at prescribed premises is subject to s 53, and, relevantly, must be done in accordance with the works approval or licence.
[3] Section 52.
Section 54 provides for the grant of a works approval.
By s 56(1), the occupier of any prescribed premises who causes, increases or permits to be caused or increased an emission from the prescribed premises commits an offence unless he is the holder of a licence issued in respect of the prescribed premises and does so in accordance with the conditions to which the licence is subject.
Section 57 provides for the grant of a licence. If an application complies with the section, the CEO is required to seek comments from any public authority or person which or who, in the opinion of the CEO, has a direct interest in the subject matter of the application, and to advertise the application inviting any person who wishes to comment on it to do so. The CEO is required to take into account any comments received.
A licence may be granted subject to such conditions as the CEO considers necessary or convenient for the purposes of the Act relating to the prevention, control, abatement or mitigation of pollution or environmental harm.[4] Section 62A lists things an occupier may be required to do under conditions attached to a licence. The list includes conditions relating to design and operation of plant; installation and operation of equipment for preventing, controlling, abating or monitoring pollution or environmental harm; meeting specified criteria or complying with specified limits as to the characteristics, volume and effects of emissions; monitoring operation; and providing reports and audits to the CEO.
[4] Section 62(1).
By s 59A(1), the CEO may revoke or suspend a works approval or licence. Section 59A(2) sets out grounds for revocation or suspension, including breach of any of the conditions to which a works approval or licence is subject.
Section 59B provides, relevantly:
…
(2)Before amending, revoking or suspending a works approval or licence the CEO is to give the holder of the works approval or licence a written notice under this section.
(3)The notice is to —
(a)state details of the proposed action; and
(b)invite the holder to make representations to the CEO to show why the action should not be taken; and
(c)state the period (at least 21 days after the notice is given to the holder) within which representations may be made.
(4)The representations must be made in writing.
(5)Subject to subsection (7), the CEO may take the proposed action —
(a)at any time after the holder of the works approval or licence gives the CEO written notice that the holder does not intend to make any representations or any further representations; or
(b)if such notice is not given, after the end of the period stated in the notice within which representations may be made.
(6)The CEO is to consider any representations properly made by the holder of the works approval or licence.
While the Act provides for other persons to be heard on an application for a works approval or licence, it does not provide for any other person to be heard with regard to action by the CEO under s 59A.
Sections 73 and 73A provide powers which may be exercised where a condition of pollution is likely to arise or has arisen. Pursuant to s 73(1a), an inspector or authorised person may, with the approval of the CEO:
(a)remove, disperse, destroy, dispose of or otherwise deal with the waste which has been or is being discharged; or
(b)prevent the condition of pollution from arising or control or abate that condition if it arises; or
(c)prevent the act referred to in subsection (1)(c) or control or abate the environmental harm if it arises,
as the case requires.
Section 73A provides for the issue of prevention notices, the failure to comply with which is an offence.
Subject to some limited exceptions, none of which are presently relevant, prosecutions for offences under the Act may only be instituted by, or with the consent of, the CEO.[5]
[5] Section 114.
By s 74A, it is a defence to proceedings under the Act for causing pollution, in respect of an emission, or for causing serious environmental harm, if the person charged proves that the pollution, emission, or environmental harm, occurred in accordance with a licence.

The Ausvision licence

The licence granted to Ausvision specifies that it is for category 55 in sch 1 of the Regulations, that is 'livestock saleyard or holding pen: premises on which live animals are held, pending their sale, shipment or slaughter'.[6]
[6] Affidavit of Connor Martin Fisher, affirmed 21 January 2022, CMF 4.
Relevantly, the licence sets out conditions relating to emissions, including wastewater, dust, and odour. Condition 12, relating to emissions of odour, is set out earlier in these reasons.
The licence holder is required to undertake an audit of compliance with conditions, to implement a complaints management system that records the number and details of complaints received concerning the environmental impact of the activities undertaken at the premises, and to report annually on the audit and complaints.
The applicant has corresponded with the Department since November 2019, seeking its intervention. Having regard to the limited terms of the preliminary question, it is not necessary to consider the detail of that correspondence.

The submissions

The resolution of the preliminary question turns on the proper construction of the Environmental Protection Act. The critical question is whether the legislation intended merely to confer power on the respondent to suspend or cancel the licence, to be exercised at her unfettered discretion, or whether the Parliament intended to repose that power with a duty to consider whether to exercise it. In considering that question , the court is not to apply presumptions or starting points in the construction of the statute.[7]
[7] Yasmin v Attorney-General (Cth) (2015) 236 FCR 169; [2015] FCAFC 14 [113].
The applicant submitted that the protection of the environment is a matter of public interest and proceedings to enforce the provisions of the Act are in the public interest.[8] It submitted that the public purpose of the power is an important factor in the construction of the power, referring to the judgment of the court in Yasmin v Attorney-General (Cth), where their Honours said:
Authorities dealing with orders in the nature of mandamus focus on the public nature of the power being exercised, and that it is exercised by a public officer or body in relation to an individual or group who depend on the exercise of power in order to have their rights and interests determined. In Randall v Northcote Town Council (1910) 11 CLR 100 at 105; 16 ALR 249 (Randall), Griffith CJ referred and adhered to what his Honour had said earlier in R v Arndel (1906) 3 CLR 557 at 566–7:
Mandamus is a prerogative writ, issued nominally in the name of the Crown, but really on the relation of an individual, to compel an officer to do an act which the applicant is entitled to have done, and without the doing of which he cannot enforce or enjoy some right which he possesses. If the act sought to be compelled to be done is a discretionary act, mandamus does not go further than to command the exercise of the discretion, and can never go to command its exercise in a particular manner.
In Randall, O'Connor J put the proposition in the following way (at 111):
The real ground of interference by the Court in cases of this kind is that set forth by this Court in R v Arndel in the passage quoted by my learned brother the Chief Justice. The Court will command a public officer to perform a duty which he owes to any member of the public. That principle is equally applicable to the discharge of a public duty by a public body, and the Court will always insist that the exercise of discretion by such a body in the discharge of its duty is a real exercise of discretion.[9]
[8] Roe v Director General, Department of Environment and Conservation [2011] WASC 57(S) [15].
[9] Yasmin [74] ‑ [75].
While mandamus can only command the exercise of a discretion, and not that it is to be exercised in a particular manner, the discretion is to be exercised according to law.
Before the hearing, I drew the parties' attention to the observations of Brennan J in Pyrenees Shire Council v Day.[10] The High Court was considering whether a duty of care arose from provisions of the Local Government Act 1958 (Vic), by which the council of a municipality 'may carry out or cause to be carried out any works or take any other measures for the prevention of fires'. The Act also authorised the council, for those purposes, to give notice to an owner or occupier requiring specified works to be done to make any fire place or chimney safe to use.[11] The primary question before the court was whether the council had a duty of care to shop owners who suffered damage from a fire where, following inspection of the premises, the council had given notice under the Act to the tenant but had taken no further steps. Justice Brennan commented on the further question of a duty enforceable at public law:
[10] Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330 [23] ‑ [24].
[11] See Local Government Act 1958 (Vic) s 694(1) and s 695(1A).
But the existence of a discretion to exercise a power is not necessarily inconsistent with a duty to exercise it. As Earl Cairns LC said in Julius v Lord Bishop of Oxford:[12]
[12] Julius v Lord Bishop of Oxford (1880) 5 App Cas 214, 222 ‑ 223.
[t]here may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so.
In Padfield v Minister of Agriculture, Fisheries and Food[13], Lord Reid cited this passage and proceeded:
Lord Penzance said that the true question was whether regard being had to the person enabled, to the subject-matter, to be general objects of the statute and to the person or class of persons for whose benefit the power was intended to be conferred, the words do or do not create a duty, and Lord Selborne said that the question was whether it could be shown from any particular words in the Act or from the general scope and objects of the statute that there was a duty. So there is ample authority for going behind the words which confer the power to the general scope and objects of the Act in order to find what was intended.
And in Commissioner of State Revenue (Vict) v Royal Insurance Australia Ltd[14], I said with the concurrence of Toohey and McHugh JJ:
When the power exists and the circumstances call for the fulfilment of a purpose for which the power is conferred, but the repository of the power declines to exercise the power, mandamus is the appropriate remedy even though the repository has an unfettered discretion in other circumstances to exercise or to refrain from exercising the power.
Thus a duty to exercise a power may arise from particular circumstances, and may be enforceable by a public law remedy.[15]
[13] Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, 1033.
[14] Commissioner of State Revenue (Vict) v Royal Insurance Australia Ltd (1994) 182 CLR 51, 88.
[15] Pyrenees Shire Council v Day [23].

The applicant submitted that, as a neighbouring land holder, it was within that class for whose interests the power was conferred, and that it had called on the respondent to exercise her powers under the Act, and relied on that exercise for the enjoyment of its rights as the holder and developer of land near to the licensed premises.
Importantly, the legislation prescribes use as a stockyard, a use that resulted in emission of odour from the premises as a use that requires a licence or works approval. The respondent's powers under s 59A arise because the respondent licensed Ausvision to use the land for that purpose. The respondent's powers exist for purposes that include regulating compliance with licence conditions by occupiers of prescribed premises.
Finally, the applicant emphasised that the preliminary question is directed only to whether the Act can impose a duty to exercise the powers conferred by s 59A, not whether the circumstances have arisen which call for the respondent to exercise the powers conferred. If there is a duty to consider the exercise of the power, that duty must be performed according to law:
[F]inality, in the sense of complete freedom from legal control, is a quality which cannot, I think, be given under our Constitution to a discretion, if, as would be the case, it is capable of being exercised for purposes, or given an operation, which would or might go outside the power from which the law or regulation conferring the discretion derives its force.[16]
[16] Shrimpton v The Commonwealth (1945) 69 CLR 613, 629 ‑ 630.
The respondent relied on the decision in Animals' Angels e.V. v Secretary, Department of Agriculture[17] where Edmonds J held that there was no implied duty to exercise the power under s 23 of the Australian Meat and Live-stock Industry Act 1997 (Cth) to issue a notice to a live‑stock exporter to show cause why its export licence should not be cancelled, or not renewed or suspended, or it should not be reprimanded.
[17] Animals' Angels e.V. v Secretary, Department of Agriculture [2014] FCA 398 - affirmed by the Full Court of the Federal Court Animals' Angels e.V. v Secretary, Department of Agriculture [2014] FCAFC 173; (2014) 228 FCR 35.
Justice Edmonds held that the express power under s 23 was unconfined except in so far as limitations could be discerned from the context, scope and purpose of the statute. His Honour observed that it would be surprising 'if a duty emanated, derivatively and by implication' from a power that was wholly permissive.[18]
[18] [70] ‑ [71].
His Honour had particular regard to these matters: the power was to be exercised after considering matters of policy; the Act did not identify any person or class of person with standing or entitlement to call on the exercise of the power, and prescribed no procedure for doing so; and the Parliament should not be taken to have intended to impose a continuing duty to consider the exercise of the power, a duty that would impose an impossible burden on the repository of the power.[19]
[19] [72] ‑ [73].
Justice Edmonds considered, and rejected the applicant's argument that the duty could be confined to circumstances where the Secretary or the Department becomes aware of material which prima facie suggests the occasion has arisen for the exercise of the power, stating that would travel far from the statutory text.
The respondent submitted that the duty for which the applicant contends is not found in the Act. The respondent further submitted that a duty in those terms would not be workable, it being uncertain under the Act when and how the duty would arise and would be discharged. The respondent pointed to:
(1)the absence of any procedure under the Act by which the duty to consider exercise of the power under s 59A would be triggered;
(2)the power in s 59A is not directed towards affecting the rights of any identifiable individual or group;
(3)the ground set out in s 59A(2)(a) is based on the respondent being satisfied that there has been a breach of conditions.
The respondent submitted that the applicant was attempting to rewrite the Act by removing the subjective element in the preconditions to the exercise of the power under s 59A, and substitute its own view as to whether there are reasonable grounds for the exercise of the power.

Consideration

I am not here concerned with whether, in the circumstances of this case, the conditions for the exercise of the power under s 59A have arisen so that the respondent is under a duty to consider whether she should suspend or cancel the licence. The question agreed by the parties is limited to whether the specified sections can confer a duty to consider the exercise of the power.
The following matters are, in my opinion, relevant to the question before the court.
First, s 59A(1) simply provides: 'The CEO may revoke or suspend a works approval or licence'. Subsection (2) sets out grounds for the exercise of that power.
The general principle is that where an Act confers a power that 'may' be exercised, that does not itself impose a duty to exercise the power. Such a duty may, however, be found in the statutory context in which the power is created: 'where a power is conditioned upon the existence of an event or upon the formation of a particular opinion by the repository of the power the condition may sometimes be taken to specify the circumstances in which the power must be exercised'.[20] Apart from the obiter observations of Brennan J in Pyrenees Shire Council v Day, I have found no case (and none was cited) where a duty, enforceable by public law remedies, was found in provisions of the kind under consideration.
[20] Commissioner of State Revenue (Vict) v Royal Insurance Australia Ltd, 85.
It is, in each case, a question of construction of the particular statute. But there is force in the general observation of Edmonds J in Animals' Angels that it would be surprising 'if a duty emanated, derivatively and by implication' from a power that was wholly permissive. If there is no legal obligation to exercise the power under s 59A(1), the Act will not readily be construed as imposing an enforceable obligation to consider the exercise of that power.
Second, the nature of the ground in s 59A(2)(a) for the exercise of the power is relevant but not decisive. Section 59A(2)(a) has a subjective component - that the respondent is satisfied that there has been a breach of conditions. But par (a) contains the only ground in s 59A(2) that calls for the respondent to be satisfied of any fact.
Third, the Act does not identify a class of persons, other than a licence holder, whose interests are affected by the exercise of the power under s 59A. When exercising the power, the respondent is required to give notice to, and invite representations from, the holder of the licence but not from any other person.[21]
[21] Section 59B(2) ‑ (6).
Fourth, the absence of a procedure by which any person can call on the respondent to exercise the power, and the absence of any specified matter that would trigger a requirement to exercise the power, are important, but not decisive, considerations. When the respondent grants a licence to carry on operations or activities from prescribed premises, the Act confers powers on the respondent to impose conditions on licences and to enforce those conditions. Premises are prescribed because of the potential for environmental harm. That is evident from the provisions of pt V generally, and from the list of premises that are prescribed in sch 1 of the Regulations. The evident purpose of the conferral of the powers in pt V div 3 is the protection of beneficial uses that might be harmed by the nature of the operations on prescribed premises that require those premises to be prescribed.
Further, the conditions that may be imposed on a licence, as set out in s 62A, include monitoring, analysis of monitoring data, and the provision of reports including audit reports to the respondent. In that way, while there is no statutory 'trigger' for the exercise of the power, the Act provides a mechanism by which the respondent may be informed of any non‑compliance that might justify action.
Fifth, the provisions of the Act are for the protection of the environment and the public generally, and not for the benefit of identifiable classes of persons. Environmental protection provisions may affect the interests of a wide and indeterminate range of persons: for example, recent cases have considered arguments directed to the effect of industrial activities on climate change. The breadth of interests to be considered is reflected in the objects in s 4A, which include intergenerational equity.
That does not deny that particular provisions may, properly construed, be for the benefit of an identifiable class. Part V div 3 is directed to the regulation of premises from which waste, noise, odour or electromagnetic radiation may be emitted. Where a specific power is conferred in relation to premises from which odour is emitted, and which are licensed by the respondent, it may be possible to identify classes of persons whose interests are directly affected, and affected in a manner different from the public generally. The purpose and object of limiting emissions from licensed premises must include the protection of environmental values, that is the protection of beneficial uses. The owners or occupiers of neighbouring land, whose use of their land is affected by emissions, are within that purpose and object. In that regard, the Act is distinguishable from that considered in the Animals' Angels cases, where the exercise of the power did not directly affect the interests of the applicant.
The interests of neighbouring owners presumably lies behind the requirement in s 57 that, in granting a licence to prescribed premises, the respondent must give notice to any person who, in the respondent's opinion, has a direct interest in the subject matter of the application, and to advertise the application inviting comment on it. The power in s 59A, however, is a separate power which may be exercised on a range of grounds, and without notice to any person.
Similarly, the power in s 59 to amend a licence may be exercised on application by the holder or on the initiative of the CEO, and requires notice to the holder. But no provision is made for notice to any other person.
Sixth, a breach of conditions may range from the trivial and transient to the serious and persistent. The Act does not distinguish between those breaches which would justify the exercise of the power to cancel, or at least require that it be considered, and those which might be dealt with by the exercise of other powers. There are other options available to the respondent (or inspectors or authorised officers) to deal with a breach or suspected breach. The respondent may, for example, amend the conditions pursuant to s 59. An inspector or authorised person may, with the approval of the respondent, take action pursuant to s 73, or may issue a prevention notice pursuant to s 73A. The respondent may bring a prosecution for the offence under s 58 of contravening licence conditions. The range of available measures weighs against the construction that the respondent has an implied duty to specifically consider the exercise of the particular power in s 59A.

Conclusion

Considering all of those matters, in my opinion the Act does not impose a duty on the respondent to consider the exercise of the power under s 59A(1). The following matters, taken together, lead to that conclusion.
First, the power is expressed in wholly permissive language. It would be necessary to find an implied duty to consider the exercise of a wholly permissive power.
Second, the Act does not provide a procedure by which any person can call on the respondent to exercise the power, or specify any matter that would trigger a requirement to exercise the power. Section 59A(2) sets out grounds on which the power may be exercised but not matters that would require its exercise.
Third, the procedures prescribed by s 59B require notice to be given to the holder but do not provide for notice to or representations from any other person.
Fourth, I accept the respondent's submission that the proposed duty would not be workable, it being uncertain when and how the duty would arise, and how it would be discharged. The Act does not distinguish between those breaches which would justify the exercise of the power to suspend or cancel, or at least require that it be considered and those which would not.
Fifth, the range of available measures weighs against the construction that the respondent has an implied duty to specifically consider the exercise of the particular power in s 59A. Would that duty arise, for example, where the respondent has brought or intends to bring proceedings for an offence. The choice between alternative measures involves questions of policy.
Finally, I accept the respondent's submission that 'at the level of statutory construction, discretionary powers should not be construed as imposing duties on the basis, and against the possibility, that those powers might be abused'.[22]
[22] Animals' Angels (Full Court) [92].
The preliminary question should be answered: No.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TB
Associate to the Honourable Justice Allanson
29 APRIL 2022