Bio-Organics Pty Ltd v The Chief Executive Officer, Department of Water and Environment Regulation
[2018] WASC 236
•9 AUGUST 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: BIO-ORGANICS PTY LTD -v- THE CHIEF EXECUTIVE OFFICER, DEPARTMENT OF WATER AND ENVIRONMENT REGULATION [2018] WASC 236
CORAM: ALLANSON J
HEARD: 20 JULY 2018
DELIVERED: 9 AUGUST 2018
FILE NO/S: CIV 1046 of 2018
BETWEEN: BIO-ORGANICS PTY LTD
First Plaintiff
JOSEPH ANDREW AVILA AND NALINE RUTH AVILA
Second Plaintiffs
AND
THE CHIEF EXECUTIVE OFFICER, DEPARTMENT OF WATER AND ENVIRONMENT REGULATION
Defendant
Catchwords:
Administrative law - Where closure notice issued pursuant to Environmental Protection Act 1986 (WA) - Where notice is to specify in the notice the things required to be done - Whether certainty of expression and application condition the exercise of the power to issue notice - Whether particular requirements in notice invalid for uncertainty - Whether invalid conditions can be severed
Legislation:
Contaminated Sites Act 2003 (WA)
Environmental Protection Act 1986 (WA), s 3(1), s 3A, s 49(1), s 51, s 57, s 65, s 66, s 67, s 68, s 68A, s 73, s 73A
Rules of the Supreme Court 1971 (WA), O 58 r 11
Supreme Court Act 1935 (WA), s 25(6)
Result:
Application allowed
Declaration granted that notice invalid
Category: B
Representation:
Counsel:
| First Plaintiff | : | Mr S Vandongen SC |
| Second Plaintiffs | : | Mr S Vandongen SC |
| Defendant | : | Ms C Ide & Mr P D Spragg |
Solicitors:
| First Plaintiff | : | Sparke Helmore Lawyers |
| Second Plaintiffs | : | Sparke Helmore Lawyers |
| Defendant | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
A B Pty Ltd v Australian Crime Commission [2009] FCA 119
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334
Cann's Pty Ltd v The Commonwealth [1946] HCA 5; (1946) 71 CLR 210
Environment Protection Authority v Simsmetal Ltd [1991] 1 VR 623
Environmental Protection Authority v Sydney Drum Machinery Pty Ltd (No 4) [2016] NSWLEC 59
Harrington v Lowe (1996) 190 CLR 311
King Gee Clothing Co. Pty. Ltd. v. The Commonwealth [1945] HCA 23; (1945) 71 CLR 184
Mailey v Sutherland Shire Council [2017] NSWCA 343
Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211; (2008) 38 WAR 276
Perkins v The Commonwealth (1964) 6 FLR 95
Perry v Garner [1953] 1 QB 335
Plaintiff M61/2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319
Re Lawrence; Ex parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549
Television Corporation Ltd v The Commonwealth [1963] HCA 30; (1963) 109 CLR 59
Telstra Corporation Ltd v Australian Competition and Consumer Commission (No2) [2007] FCA 493
ALLANSON J:
Introduction
The first plaintiff, Bio-Organics Pty Ltd, held a licence under the Environmental Protection Act 1986 (WA) in relation to premises owned by the second plaintiffs, Joseph Andrew Avila and Naline Ruth Avila. In 2014, the defendant revoked Bio-Organic's licence and caused a closure notice pursuant to s 68A of the Environmental Protection Act to be given to the plaintiffs in respect of the premises.
By originating summons, filed 12 January 2018 and amended at the hearing, the plaintiffs seek the following orders:
1A declaration pursuant to Order 58 Rule 11 that the Closure Notice issued by the Defendant on 27 June 2014 purportedly pursuant to section 68A of the Environmental Protection Act 1986 (the Closure Notice) is not binding on each of the First and Second Plaintiffs on the grounds that it is invalid as a whole.
2Alternatively, a declaration pursuant to Order 58 Rule 11 that the following requirements of the Closure Notice are not binding on each of the First and Second Plaintiffs on the grounds that they are not specifically authorised by section 68A(7) of the Environmental Protection Act 1986 or are invalid by reason of the fact that the Closure Notice does not unambiguously identify and make clear in the Closure Notice itself what is required to be done contrary to section 68A(8)(d) of the Act:
(a)Requirement 2.1
(aa)Requirement 2.2
(c)Requirements 3.1 and 3.2
(d)Requirement 4.5
(e)Requirement 4.8
(f)Requirement 5
(g)Requirements 6.1.1 and 6.1.2
(h)Requirement 7.1
(i)Requirement 8.4
(j)Requirements 11.1 and 11.3
(k)Requirements 11.9 and 11.11; and
(l)Requirements 12.1 and 12.2.
The plaintiffs also sought declarations as to the operation and proper construction of the closure notice, should it be held to be valid. Following conferral between the parties, those parts of the application were not pursued at the hearing.
The defendant is the Chief Executive Officer, Department of Water and Environmental Regulation. The term 'CEO' is defined in the Environmental Protection Act 1986 (WA) as the chief executive officer of the Department through which the Act is administered.[1] In these reasons I will use the defined term and refer to the defendant as the CEO.
[1] Environmental Protection Act s 3(1).
Unless stated otherwise, references in these reasons to legislation are references to the Environmental Protection Act.
Order 58 r 11 and declaratory relief
The application is brought pursuant to O 58 r 11 of the Rules of the Supreme Court 1971 (WA). The court has power under s 25(6) of the Supreme Court Act 1935 to make binding declarations of right. Order 58 r 11 provides:
Any person claiming any legal or equitable right in a case where the determination of the question whether he is entitled to the right depends upon a question of construction of a statute, or of a regulation, rule, by‑law or instrument made or purporting to be made under a statute, or of the validity of any such regulation, rule, by-law, or instrument, may apply by originating summons for the determination of such question of construction or validity, and for a declaration as to the right claimed.
The authorities establish that it is neither possible nor desirable to fetter the power to grant declaratory relief by laying down rules as to how that power is to be exercised. It is, however, a judicial power. In Ainsworth v Criminal Justice Commission,[2] the plurality identified these considerations which mark the boundaries of its exercise:
(1) the declaration must be directed to the determination of a legal controversy, and not an abstract or hypothetical question;
(2)the person seeking relief must have 'a real interest';
(3)the relief claimed must not be in relation to circumstances that have not occurred and might never happen; and
(4)the declaration must produce foreseeable consequences for the parties.[3]
[2] Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 581 ‑ 582.
[3] Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 581 ‑ 582; see also Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 [45] ‑ [48]; Plaintiff M61/2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 [101] ‑ [103].
There is a real controversy between the parties about whether the plaintiffs are bound by the requirements of the notice, which turns on whether the notice was validly made in the exercise of the CEO's powers under the Act. A finding that the notice is invalid has important implications for the parties. I am satisfied that the court has power to grant the declarations sought. The defendant did not suggest that the court lacked power.
The evidence
The plaintiffs read two affidavits of Daniel Joseph Avila, General Manager of Bio-Organics, dated 9 April 2018 and 16 July 2018. The defendant read two affidavits of Jason Nelson, Senior Investigator with the Department of Water and Environment Regulation, dated 7 May 2018 (read in part only) and 17 July 2018. The affidavits provide important context, but the court is not required to determine any factual controversy between the parties.
From the affidavits, the following background facts are established.
The second plaintiffs are the registered owners of a rural property of approximately 160 acres in the locality of Oakford within the Shire of Serpentine‑Jarrahdale. The property comprises two lots, sufficiently identified for the purposes of these reasons as Lot 35 and Lot 36.[4]
[4] Affidavit of Daniel Avila, dated 9 April 2016 (first affidavit) [2].
Bio-Organics was a producer of organic garden products and soil blends on Lot 35 and Lot 36. On 18 March 2011, Bio-Organics was issued with a licence pursuant to s 57 of the Act in respect of Lot 35 and Lot 36.[5] The licence was for two prescribed categories of premises: 61 (Liquid Waste Facility) and 67A (Compost Manufacturing and Soil Blending). Relevantly, Schedule 1 of the Environmental Protection Regulations 1987 (WA) prescribes these categories:
61Liquid waste facility: premises on which liquid waste produced on other premises (other than sewerage waste) is stored, reprocessed, treated or irrigated.
67ACompost manufacturing and soil blending: premises on which organic material (excluding silage) or waste is stored pending processing, mixing, drying or composting to produce commercial quantities of compost or blended soils.
[5] Daniel Avila first affidavit [5]; Jason Nelson first affidavit [6].
On 27 June 2014, the CEO revoked Bio-Organic's licence to operate its composting facility and caused a closure notice pursuant to s 68A to be given in respect of the premises.
The legislative scheme
Section 68A was inserted in the Environmental Protection Act in 2003.[6] The purpose of closure notices issued under s 68A is to control the proper decommissioning of licensed premises when a licence expires or is revoked, by providing for ongoing investigation, monitoring or management at the premises.
[6] Environmental Protection Amendment Act 2003 (WA) s 81.
Section 68A provides:
(1)In this section -
authorisation means a declaration under section 6, a clearing permit, a works approval, a licence, an exemption under section 75 or a licence, permit, approval or exemption under the regulations;
relevant premises, in relation to an authorisation, means premises -
(a)in respect of which the authorisation was issued; or
(b)at which conduct is being or has been engaged in under the authorisation;
specified means specified by the CEO in the closure notice concerned.
(2)If the CEO considers on reasonable grounds that, as a result of anything that has been done or has happened at relevant premises before the expiry or revocation of an authorisation, ongoing investigation, monitoring or management is or will be required at the premises following that expiry or revocation, the CEO may cause a notice (a closure notice) to be given in respect of the premises.
(3)If the authorisation is still in force, the closure notice is to be given to the person who holds the authorisation.
(4)If the authorisation is not still in force, the closure notice is to be given to the person who held the authorisation or to the occupier or owner of the relevant premises.
(5)If a person who is the owner of the relevant premises is not given the closure notice under subsection (3) or (4), a copy of the notice must be given to that person.
(6)If a person who is the occupier of the relevant premises is not given the closure notice under subsection (3) or (4), a copy of the notice may be given to that person.
(7)A closure notice may require any person bound by it to do any one or more of the following in relation to the relevant premises -
(a)take specified investigation and monitoring action;
(b)prepare a management plan;
(c)take specified management action;
(d)report on specified matters in a specified form at specified times;
(e)arrange for an audit of the premises to be carried out by a person nominated or approved by the CEO and report to the CEO on the findings of the audit as to whether or not the action required by the notice has been taken.
(8)A closure notice is to specify -
(a)the name and address of the person to whom it is given; and
(b)the reason for which it is given; and
(c)a description of the relevant premises and the location of the premises sufficient to identify both; and
(d)the things referred to in subsection (7) that are required to be done; and
(e)the period (if any) within which the things are to be done.
(9)A closure notice -
(a)while it subsists, binds each person to whom it is given; and
(b)while it remains registered under section 66 (as applied by subsection (10)), binds each successive owner or occupier of the land to which it relates.
(10)Section 65(4) to (7) and sections 66, 67 and 68 apply in relation to closure notices as if references in those enactments to an environmental protection notice were references to a closure notice.
(11)If action required by a closure notice to be taken has not been taken, the CEO may ‑
(a)cause that action to be taken; and
(b)recover the cost of the taking of that action from any person bound by the notice by action in a court of competent jurisdiction as a debt due to the Crown.
(12)Any cost recovered under subsection (11)(b) is to be paid into the Consolidated Account.
By s 65(4) to (7), applied by s 68A(10):
(1)the CEO may, by notice in writing, revoke or amend the notice, including by extending the period within which a requirement in the notice is to be complied with;[7] and
(2)failure to comply with the notice is an offence.[8]
[7] Section 65(4), (6), (7).
[8] Section 65(4a)(5).
Section 66 provides for the registration of notices, including closure notices, on the title of the land. Section 67 imposes duties on a person ceasing to be the owner or occupier of land, while a notice remains registered under s 66; and s 68 imposes restrictions on the subdivision or amalgamation of the land. In the present case, the land has not changed ownership.
If waste has been or is being discharged from any premises otherwise than in accordance with a requirement contained in a closure notice, s 73 authorises the CEO to take remedial actions prescribed in that section, and the CEO may recover that cost from the occupier of the premises, or the person who caused or allowed the discharge.[9]
[9] Section 73(1), (3).
Section 73A provides for the issue of prevention notices in prescribed circumstances, including where an inspector or authorised person reasonably suspects that any waste has been or is being discharged from any premises otherwise than in accordance with the requirements contained in a closure notice.
The closure notice
The closure notice was given to Bio-Organics and specified the premises to which it related as:
The Bio-Organics Pty Ltd compost manufacturing and soil blending Premises located at Abernethy Road, Oakford in Western Australia and being more particularly described as: Lot 35 on Diagram 66393 and Lot 36 on Diagram 66394, Abernethy Road, Oakford, being the land as shown in Schedule 1 of this Notice ('the Premises').
The notice commenced on the date on which it was given to Bio‑Organics. Many of the requirements of the notice were to be completed within the first month, and others within the first six months. But some of the requirements, particularly those relating to management and monitoring, are continuing. The closure notice does not specify a date when it will cease to have effect. Subject to these proceedings, those continuing requirements of the closure notice will remain in force until it is revoked.
The closure notice stated the reason for its issue as follows:
The Premises was subject to a licence under Part V of the Act held by the occupier of the Premises to undertake compost manufacturing and soil blending activities.
This notice is given as a result of something that has been done at the relevant Premises, before the expiry of Licence No 8475/2010/2 ('the Licence'), namely, manufacturing of compost using controlled waste. Elevated levels of nitrogen in the groundwater adjacent to the composting facility have been found. Ongoing monitoring, auditing and management are required at the Premises following revocation of the Licence, in order to regulate the closing down of the facility given the amount of organic material present on the Premises and the composting process already underway with some of that material, to require management of key facilities and to require ongoing groundwater monitoring.
Pursuant to s 66, the closure notice was registered against the Certificates of Title for Lot 35 and Lot 36.
The plaintiffs did not suggest that the CEO failed to comply with s 68A(2) in issuing the closure notice, or that he did not consider on reasonable grounds that ongoing investigation, monitoring and management was and would be required at the premises.
The challenge to the validity of the closure notice was based upon s 68A(7) and (8): whether the requirements of the closure notice were authorised by s 68A(7), and, in particular, whether the closure notice 'specified' the things referred to in s (7) that were required to be done. The critical question is whether the notice meets the degree of clarity and certainty of expression required for a thing to be 'specified in the closure notice', as required by s 68A(7) and (8).
The starting point is that there is no general principle that uncertainty in an executive instrument spells legal invalidity. But there may be a requirement of certainty in the provisions which create the power to impose conditions.[10]
[10] Television Corporation Ltd v The Commonwealth [1963] HCA 30; (1963) 109 CLR 59, 71 (Kitto J) (citing King Gee Clothing Co Pty Ltd v The Commonwealth and Cann's Pty Ltd v The Commonwealth [1946] HCA 5; (1946) 71 CLR 210); see also Menzies J, 83.
In King Gee Clothing Co Pty Ltd v The Commonwealth and Cann's Pty Ltd v The Commonwealth,[11] the court was concerned with the validity of Prices Regulation Orders made pursuant to regulations under which the Prices Commissioner could fix the maximum price of declared goods. Although 'fix' and 'specify' are not synonymous, the authorities on the Prices Regulation Order addressed the circumstances in which an instrument may be held to be beyond power because certainty of expression is a condition of the valid exercise of the power. In Cann's, Dixon J said:
The interpretation of all written documents is liable to be attended with difficulty, and it is not my opinion that doubts and misgivings as to what the instrument intends, however heavily they may weigh upon a court of construction, authorize the conclusion that an order made under reg 23 is ultra vires or otherwise void. If in some respects its meaning is unascertainable, then, no doubt, it fails to that extent to prescribe effectively rights or liabilities, but that is because no particular act or thing can be brought within the scope of what is expressed unintelligibly. But to resolve ambiguities and uncertainties about the meaning of any writing is a function of interpretation and, unless the power under which a legislative or administrative order is made is read as requiring certainty of expression as a condition of its valid exercise ... the meaning of the order must be ascertained according to the rules of construction and the principles of interpretation as with any other document. [12]
[11] King Gee Clothing Co. Pty. Ltd. v. The Commonwealth [1945] HCA 23; (1945) 71 CLR 184; Cann's Pty Ltd v The Commonwealth [1946] HCA 5; (1946) 71 CLR 210.
[12] Cann's Pty Ltd v The Commonwealth (227 ‑ 228) (emphasis added).
In Television Corporation Ltd v The Commonwealth,[13] the High Court considered whether certain conditions could lawfully be imposed on commercial television station licences. Kitto J said:
In this context it seems to me a necessary conclusion that what the Act means by a 'condition' is a specification of acts to be done or abstained from by the licensee company - a specification telling the company what it is to do or refrain from doing, and thus on the one hand enabling it in regulating its conduct to know whether it is imperilling the licence or not, and on the other hand making clear to the Minister for the time being what test he is to apply in order that any judgment he may form as to compliance or non-compliance may not be vitiated by error of law. A specification cannot, I think, fulfil this dual function if it is so vaguely expressed that either its meaning or its application is a matter of real uncertainty; and for that reason it seems to me that on the proper construction of the Act the Minister's power to impose conditions is to be understood as limited to the imposition of conditions that are reasonably certain - that is to say … conditions such that from the moment of their creation the Court can say with reasonable certainty in what events forfeiture will be incurred. Such certainty includes both certainty of expression and certainty in operation.[14]
[13] Television Corporation Ltd v The Commonwealth.
[14] Television Corporation Ltd v The Commonwealth 70.
Section 68A confers a power where certainty of expression is a condition of its valid exercise. This conclusion is supported both by its text and by authority.
First, s 68A and (8), read with s 68A(1), require the closure notice to specify certain things 'in the closure notice concerned'. Section 68A(7), in three of its five paragraphs, refers to specified things. '"Specify" is a word calling for considerable precision of statement'.[15]
[15] Perkins v The Commonwealth (1964) 6 FLR 95, 103.
Second, while there is no authority on s 68A, there is authority on another section of the Act which was similarly expressed. In 1994, in Re Lawrence; Ex parte Goldbar Holdings Pty Ltd,[16] the Full Court considered provisions regarding the issue of a pollution abatement notice under the same Act, where measures to abate pollution were required to be specified in the notice. The court considered the power in s 65(2)[17] of the Act which then provided:
[16] Re Lawrence; Ex parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549.
[17] Environmental Protection Act s 65(2) and (8).
(2)A pollution abatement notice -
(a)shall specify the reason for which it is served;
(b)may require any person bound by it to take such measures as -
(i)the Chief Executive Office considers necessary to prevent, control or abate the discharge of waste of emission of noise, odour or electromagnetic radiation to which the pollution abatement notice related; and
(ii)are specified in the pollution abatement notice, within such period as is specified in the pollution abatement notice.
Section 65(2) has since been amended, with a distinction being drawn between those matters which the environmental protection notice is to 'specify', and those it is to 'describe'. Section 65(8) has not been amended, and provides that, in s 65, 'specified' means 'specified in the pollution abatement notice concerned'.
Malcolm CJ[18] said of s 65:
It is to be noted that once that it follows from subs(2) when read with subs(8) that the power to require a person to take measures of the kind referred to in subs(2)(b)(i) requires the Chief Executive Officer to consider the measures necessary and that the measures be 'specified' in the pollution abatement notice. The verb to 'specified' means to name expressly or mention definitely relevant items, details, or ingredients relating to a particular subject matter: see The Shorter Oxford Dictionary. In Re Green's Will Trusts [1985] 3 All ER 455 at 460 Nourse J considered that in a legal document or instrument, ordinary meaning of the word 'specified' was 'unambiguously identify' or 'made clear'. In my opinion, in order to comply with the requirements of s 65(2)(b) the relevant measures must be unambiguously identified and made clear in the notice itself.[19]
[18] With whom Seaman and Ipp JJ agreed.
[19] Re Lawrence; Ex parte Goldbar Holdings Pty Ltd, 554, see also 566. See also, Environment Protection Authority v Simsmetal Ltd [1991] 1 VR 623, referred to with approval by Malcolm CJ in Ex parte Goldbar Holdings.
The defendant pointed to the different purposes of a closure notice and a pollution abatement notice considered in Re Lawrence; Ex parte Goldbar Holdings Pty Ltd. That distinction cannot affect the meaning to be given to the common provision that the notice must specify what is required in the notice.
Section 68A was inserted into the Act after the decision in Re Lawrence; Ex parte Goldbar Holdings Pty Ltd. It is not necessary to consider whether the legislature should be presumed to have used the words 'specified notice' according to the meaning given in the earlier authority.[20] I am satisfied from the words used and the context, including the range of persons who may be bound to comply with the notice, the nature of the things required to be done, and the consequences of non‑compliance for the persons bound, that on its proper construction s 68A requires that a closure notice must unambiguously identify and make clear what must be done.
[20] See Pearce and Geddes, Statutory Interpretation in Australia (7th ed) [3.43] ‑ [3.5].
Both parties accepted that, in considering the terms of the closure notice, the court should not construe them in a precious or hypercritical fashion, but should consider whether the notice made it reasonably clear, in the circumstances in which it was given and on a fair reading of its terms, what is required.
The defendant further submitted that 'specify', in its application, 'must take its more precise shade of meaning from the context and be regarded as requiring only such degree of specification as the subject matter and circumstances admit of, or as the purpose in hand seems to require'.[21] I accept that position, and also that it is generally necessary to interpret any written instrument to ascertain its true meaning.
[21] Perkins v The Commonwealth, 103.
The defendant further submitted that the degree of specificity required may also be influenced by the expected knowledge of the person or persons required to comply with the notice.[22] The defendant submitted that the court should take into account that the plaintiffs were either the owners of the land or the operators of the composting facility that historically operated on the land. The defendant submitted, 'It is reasonable to assume a degree of familiarity with the land and indeed the concerns of the [defendant] prior to the issue of the notice'.[23] I cannot wholly accept that submission, although it may be relevant to those requirements imposed on the plaintiffs which were to be complied with immediately. The closure notice binds each person to whom it is given, which includes the holder of the licence and the owner of the premises, and may include an occupier of the premises (other than the holder of the licence).[24] Because the closure notice also binds the successors in title to the land while the notice remains registered against the title,[25] its validity should not depend on whether the original recipients were familiar with the concerns of the defendant before the notice was issued. The legal operation of the notice, and not factual coincidence, should determine its validity.
[22] Citing A B Pty Ltd v Australian Crime Commission [2009] FCA 119 [50] and Telstra Corporation Ltd v Australian Competition and Consumer Commission (No2) [2007] FCA 493 [70], [100].
[23] Defendant's written submissions [37].
[24] Section 68A(4), (5), (6) and (9)(a).
[25] Section 68A(9)(b).
The terms of the notice
Before dealing with the challenges to the closure notice in detail, it is useful to give a broad overview. Not all requirements were challenged. But, on the general principles that apply to construing an instrument, each requirement should be read as a whole, in the context of the whole notice, and having regard to the purpose disclosed by the notice as a whole.
The notice contained a general clause that terms used in the notice shall have meaning as defined in Appendix 1 and if not defined in that Appendix shall have their normal meaning.
There were 12 areas or groups of requirements, with six schedules referred to in the body of the notice.
In general terms, the first three requirements required Bio‑Organics to do certain things either immediately or within seven days: to cease receiving Feedstock[26] for composting;[27] to engage a surveyor to survey the premises and what was on the land; and to engage an auditor[28] to audit records and compliance with the requirements and the decommissioning process. There were continuing requirements to update inventory, maintain records, and make records available to the auditor engaged under requirement 3.
[26] Defined in Appendix 1 as 'any organic or inorganic material used in the composting process'.
[27] 'Composting' is defined to mean 'the process whereby organic materials are microbiologically transformed under controlled aerobic conditions.'
[28] Defined as 'a person accredited as an auditor under the Contaminated Sites Act 2003'.
Requirements 4, 5, 6 and 7 were directed to management of the storage of materials on the premises, and, in particular, storage on a 'Hardstand Area' surrounded by an impervious bund. These things were also to be done within a relatively short, specified time frame.
Requirements 8, 9, 10, and 12 dealt with management of water, greenwaste, compost and air emissions.[29] The management requirements were ongoing, although Bio-Organics was required to 'finalise all materials currently being composted at the Premises as a Completed Compost product within five months' and remove all Completed Compost product referred to in requirement 10.3 from the Premises within six months of the Notice being issued.
[29] Although headed 'Air Emissions Management', requirement 12 had a wider operation and included measures for the containment of Environmentally Hazardous Material and removal and disposal of any leaks or spills.
Requirement 11, read with sch 6, required Bio-Organics, commencing within one month, to monitor ground water at monthly and then quarterly intervals. The monitoring obligation was 'for the entire duration' of the closure notice, that is, for an indefinite period.
Schedules to the notice included a plan of the premises, a plan depicting the location of the designated hardstand area, leachate retention pond and lined pond, requirements of the pond liner, location of groundwater monitoring bores, and a table of groundwater sampling parameters and frequency.
I will not reproduce the whole of the closure notice, which comprised 19 pages including schedules and one appendix. I will, however, set out the challenged requirements and so much of the context as is necessary.
Requirement 2.1 and 2.2 - survey
The plaintiffs contend that requirements 2.1 and 2.2 should be held to be invalid. They require that Bio-Organics:
2.1.Engage the services of an independent licensed surveyor within seven days of this Notice being issued, to conduct a survey of the volume (in m3) and location of all Feedstock and products within the Premises boundary.
2.2. The abovementioned survey shall address the following Feedstock and product types:
2.2.1.Greenwaste[30];
2.2.2.Mulched Greenwaste;
2.2.3.Pasteurised Greenwaste;
2.2.4.Compost in Process;
2.2.5.Completed Compost;
2.2.6.Screened Completed Compost;
2.2.7.Blended Soils;
2.2.8.Clean Sand; and
2.2.9.Any additional Feedstock or products within the Premises boundary.
[30] Defined in Appendix 1 to mean 'untreated trees or plants'.
The surveyor was to conduct the survey within seven days of being engaged and Bio-Organics was to direct the surveyor to report directly to the CEO within seven days of the survey being conducted.
Requirements 2.6 and 2.7 require Bio-Organics to immediately implement and maintain a written inventory of all Feedstock and products (excluding Clean Sand) leaving the premises, update the inventory every two months and make it available for audit.
The plaintiffs' submissions
The plaintiffs submitted that requirements 2.1 and 2.2 do not clearly specify what is required to be done because the notice does not expressly or implicitly define the word 'product'.
Further, the plaintiffs submitted that the reference to 'Clean Sand', as defined, is not specific in defining it as 'material that will have no harmful effects on the environment'. The plaintiffs submit that, given the very broad definition of environmental harm in s 3A of the Act, requirement 2 does not make clear what Bio-Organics must do.
The defendant's submissions
The defendant submitted, generally, that none of the clauses leave the scope of the requirement to the discretion of an inspector or officer of the defendant.[31]
[31] Distinguishing this case from Re Lawrence; Ex parte Goldbar Holdings Pty Ltd.
The defendant submitted that:
(1)The term 'product' is to be given its ordinary meaning. In the context where the licensed premises had produced organic garden products and soil blends, and the survey requirement was to be complied with soon after the issue of the notice, when products for the business may have been on site. In that context, the reference to 'products' is sufficiently clear.
(2)While the expression 'environmental harm' is very broad, in the context of the definition of Clean Sand (that is, soil or sand arising from the excavation of undisturbed material), and the activities that had been undertaken on the premises while licenced, the requirement is sufficiently clear.
Conclusion on requirement 2
I accept the submissions of the defendant regarding the term 'product'. The requirement was to be complied with in seven days, bringing an end to the activity that had been licensed and carried on at the premises. In this instance, it would be unrealistic to ignore that the notice was issued to Bio-Organics as the former licence holder. In that context, the meaning of the term is readily ascertainable by normal interpretation of the notice.
The term Clean Sand is defined, but the definition may itself produce some uncertainty because of the broad definition of environmental harm in the Act. The uncertainty arises from the terms of the Act, and not from the failure by the notice to specify what is to be done. Put another way, I do not believe that it is a failure to exercise the power in s 68A to express the requirement in a way which relies upon a definition in the governing legislation.
Further, in my opinion, the term Clean Sand must be read in the context of the whole of requirement 2. Bio-Organics was required to engage a surveyor within seven days, to conduct a survey of existing material on the premises. In that context, Clean Sand was distinguished from other materials such as Greenwaste, Compost, and Blended Soils.
I am not satisfied that the requirements in 2.1 and 2.2 are too uncertain to constitute a valid exercise of the power under s 68A.
Requirement 3.1 and 3.2 - auditing
Part 3 of the notice is headed 'Auditing Requirements'. Relevantly, it provides that Bio-Organics must:
3.1.Engage the services of an independent Auditor[32] within seven days of this Notice being issued.
[32] Defined in appendix 1 as 'a person accredited as an auditor under the Contaminated Sites Act 2003.
3.2.Commencing four weeks after this Notice is issued, Bio-Organics shall direct the Auditor to undertake the following actions:
3.2.1.conduct quarterly inspections of the Premises to determine compliance or otherwise with the requirements of this Notice;
3.2.2.audit records of all Compost, Blended Soils, Mulch and Feedstock materials that leave the Premises against the relevant documentation and site materials inventory on a quarterly basis;
3.2.3.audit records of all Compost, Blended Soils, Mulch and Feedstock materials that remain within the boundary of the Premises on a quarterly basis;
3.2.4.provide quarterly reports within five days of undertaking the audits directly to the CEO outlining results of the compliance inspections outlined in requirement 3.2.1 and the audit of records required under requirements 3.2.2 and 3.2.3; and
3.2.5.the audits specified this requirement 3.2 shall cease following the third audit undertaken on the 28th week after the date this Notice is issued.
3.3.Bio-Organics is required to report to the CEO in writing within 48 hours of engaging the services of an independent Auditor outlined in requirement 3.1 and provide the name of that Auditor and contact details with the notification.
The plaintiffs' submissions
The plaintiffs' first challenge was that requirement 3 does not make clear whether the engagement of the auditor must first be approved by the CEO for the purposes of s 68A(7)(e), which requires the audit to be carried out by a person nominated or approved by the CEO. Requirement 3.3 cannot resolve this ambiguity as it only applies after an auditor has been engaged.
The second issue relates to the requirement that the auditor conduct inspections, audit records and report 'quarterly'. The plaintiffs submitted that 'quarterly' is not used consistently with the defined term 'quarterly' in Appendix 1. Further, the notice does not specify when, within each quarter, the inspection, audit, or report is to be done.
Third, the plaintiffs submitted that the closure notice does not state clearly what is required to be done, because requirement 3 requires inspections of the premises to be carried out to determine compliance or otherwise with the requirements of the closure notice when:
(1) the question of whether there has been compliance or otherwise with some of those requirements may fall outside an auditor's expertise; and
(2)it is not possible to determine whether there has been compliance with some of those requirements merely by conducting inspections of the premises.
The defendant's submissions
As to the approval of the auditor, the defendant referred to the definition of auditor in Appendix 1, which requires the auditor to be accredited under pt 7 of the Contaminated Sites Act 2003. The defendant submitted that, under the Contaminated Sites Act, the CEO accredits and thus 'approves' such auditors (it is the same CEO under both Acts). It can thus be assumed that any auditor accredited under the Contaminated Sites Act is approved.
As to the use of the term 'quarterly', the defendant submitted it is used consistently with the definition in the Appendix. The defendant submitted that, having regard to 3.2.1 and 3.2.5, it is clear that the inspections and audits of records are to commence four weeks after the issue of the notice, and the third audit is to occur in the 28th week. The defendant submitted that, accordingly, the first inspection and audit would be in the July to September quarter, the second in the October to December quarter, and the third and last in the first quarter of the following year, week 28 being the week 9 to 16 January. The defendant submitted that, except for the specification that the third audit is to be undertaken in the 28th week, the timing of the audits within each quarter is to be decided by the auditor. In summary, the CEO has not failed to specify what is to be done, but the matter is readily ascertainable on the proper construction of the notice.
The defendant further submitted that the closure notice does not require the auditor to identify whether all measures under the notice had been taken, as some measures are to be certified by others (a suitably qualified professional). That is, the closure notice, properly construed, merely requires Bio-Organics to direct the auditor to report on such compliance as can be determined by inspection of the premises.
Conclusion on requirement 3
On the approval of the auditor, I accept the result of the submission of the defendant, although my reasoning differs. Section 68A(7)(e) requires that the auditor be a person nominated or approved by the CEO. Nomination of a person, for the purposes of that section, may require the CEO to name the person who is to conduct the audit. Approval, however, is an alternative. One may approve a class of persons. By specifying that the auditor must be a person accredited under the Contaminated Sites Act, the CEO has approved accredited auditors as a class of persons. There is no uncertainty within the terms of the notice whether any particular person is approved.
The construction that the defendant advanced for requirement 3, in my opinion, has an underlying problem. If the third audit is undertaken in the week commencing 9 January, however, it could not be an audit of the records for the January to March quarter. It would necessarily be an audit of the records for the October to December quarter. The second audit would then be for the July to September quarter, and the first audit for the April to June quarter (that is, before the issue of the notice and before the obligation imposed by requirement 2.6 to maintain an inventory of products leaving the premises).
Even if the quarters are not as defined in the Appendix, but are merely three‑month periods, the third audit is necessarily going to be at the beginning of the third quarter.
Accordingly, in my opinion, it is not possible to say with reasonable certainty what is meant by the requirement for the audits to be quarterly.
The notice only requires Bio-Organics to direct the auditor to investigate and audit in accordance with requirement 3. That is, the notice clearly states what Bio-Organics is required to do, in order to comply. The area of uncertainty is as to what the auditor must do. I raised with counsel at the hearing whether this response is facile. On further consideration, I think that it is. Bio-Organics cannot, in my opinion, reasonably direct the auditor as to the requirements for quarterly audit because the requirement does not unambiguously identify or make clear what is required.
I accept the defendant's submission that it is not necessary for an audit or investigation to be as to all matters, and it is not required that the auditor be able to reach a conclusion on all matters. It would not be a failure to meet the requirements of the notice, were the auditor to report that they were unable to determine compliance with one or more of the requirements of the notice.[33]
Requirements 4.1, 4.5 and 4.8 - Storage and Processing; requirement 5 -Pond Management
[33] I note, incidentally, that no question was raised in these proceedings regarding the requirement that the auditor report directly to the CEO when s 68A(7)(e) appears to require the recipient of the notice to report.
Requirement 4 is directed to storage and processing of the materials outlined in requirement 2.2. It provides:
4.1.Subject to requirements 4.2 and 4.3 of this Notice, store and process all materials outlined in requirement 2.2 (with the exception of Clean Sand) on the Designated Hardstand Area depicted in Schedule 2.
4.2.Relocate all materials outlined in requirement 2.2 (with the exception of Clean Sand) onto the Designated Hardstand Area depicted in Schedule 2 so that requirement 4.1 is met.
4.3.The relocation referred to in requirement 4.2 shall occur within seven days of the completion of the survey outlined in requirement 2.2.
4.4.Notify the CEO in writing within 48 hours of the relocation referred to in requirement 4.2 being completed.
4.5.Construct an Impervious Bund to surround the Designated Hardstand Area depicted in Schedule 2 so that all Leachate, Dust Suppression Water and Stormwater is contained within the Designated Hardstand Area or stored in accordance with requirement 5 of this notice.
4.6.The Impervious Bund specified in requirement 4.5 of this Notice shall be completed within 14 days of this Notice being issued.
4.7.Report to the CEO in writing within 48 hours of the completion of the Impervious Bund.
4.8.Provide the CEO with a written certification from an independent suitably qualified professional within seven days of completion of the Impervious Bund to confirm that the bund meets the specifications of requirement 4.5 of this Notice.
Requirement 5 provides:
After 28 days from the date of giving this notice Bio-Organics shall not direct to or store Leachate, or Contaminated Stormwater in either the Leachate Retention Pond or the Lined Pond depicted in Schedule 3, unless the specifications outlined under headings 6 and 7 below, respectively, have been met and certified by an independent suitably qualified professional.
The plaintiffs' submissions
Leachate and Contaminated Stormwater are defined in Appendix 1 by reference to requirement 3.1. However, requirement 3.1 obliges the first plaintiff to engage an auditor and does not specify any materials. Accordingly, requirement 4 does not clearly and unambiguously state what the recipient of the notice is to do.
The plaintiffs further submitted that requirement 4.5, in requiring the construction of an Impervious Bund to ensure that all Leachate, Dust Suppression Water and Stormwater is contained within the Designated Hardstand Area 'or stored in accordance with Requirement 5', does not clearly state what Bio-Organics is to do because requirement 5 does not impose any storage requirements. Requirement 5 prohibits the direction to or storage of certain material in the Leachate Retention Pond or the Lined Pond unless certain specifications have been 'met and certified'.
Finally, the plaintiffs submitted that requirements 4 and 5 do not unambiguously identify and make clear what an 'independent suitably qualified professional' is or what 'written certification' may involve. That issue also affects requirements 6, 7, and 11, and schedule 4.
The defendant's submissions
The defendant accepted that the reference in requirement 3.1 is clearly an error, the only listing of materials is in requirement 2.2. The defendant submitted that the requirement is generally in relation to the Designated Hardstand Area where materials referred to in requirement 2.2 are to be stored. Having regard to that context, the requirement is not uncertain or ambiguous. It is a matter of ascertaining the meaning of the instrument by normal interpretation when, despite the error, the notice itself is not fatally ambiguous or uncertain.
Conclusion on requirements 4 and 5
I deal separately, later in these reasons, with the challenge to those requirements which called for the notice recipient to engage an independent suitably qualified professional.
The presence of an error in a closure notice may introduce a degree of ambiguity or obscurity which would lead to the conclusion that the power to issue the notice has not been exercised in accordance with the Act. In the present case, however, I am satisfied that the exercise of construction required to identify the error in the definitions of Leachate and Contaminated Stormwater and ascertain the true meaning of requirement 4 is sufficiently obvious that the recipient of the notice could not reasonably say they had not clearly been directed as to what they must do.
The relationship between requirements 4.5 and 5 is not uncertain. Requirement 4.5 presents an alternative: Leachate, Dust Suppression Water, and Stormwater are to be contained within the Designated Hardstand Area or stored in accordance with requirement 5. Requirement 5, read with requirements 6 and 7 and schedule 4, permits storage in the Leachate Retention Pond or the Lined Pond only when the lining material of the pond meets specified criteria, and compliance with those criteria has been tested and certified.
The critical factor for requirements 4 and 5, and several of the following requirements, may now be considered.
Requirements 4.8, 5, 6.1, 7.1, 7.3, 7.4, 7.5, 11.1, and schedule 4: the suitably qualified professional.
It is convenient to deal with these requirements together because of the common factor that each requires the engagement of, and in some cases requires Bio-Organics to obtain certification by, an independent suitably qualified professional. I have already set out requirement 4 and requirement 5.
Requirement 6 - Leachate Retention Pond - is in these terms:
6.1.Prior to the use of the Leachate Retention Pond for the purpose of storing Leachate or Contaminated Stormwater, Bio-Organics must: .
6.1.1.ensure that the liner of the Leachate Retention Pond depicted in Schedule 3 meets the requirements outlined in Schedule 4 of this Notice; and
6.1.2.provide the CEO with certification in writing from an independent suitably qualified professional confirming the specifications of this requirement 6.1 have been met.
Requirement 7 provides:
7.1.Remove all material stored within the Lined Pond depicted in Schedule 3 within seven days of this Notice and store that material in an impervious Containment Facility pending incorporation into the composting process or returned to the Lined Pond if the integrity of the pond has been independently certified as specified in requirement 7.3 and 7.6.
7.2.Notify the CEO in writing within 48 hours of the Lined Pond being emptied.
7.3.Within seven days of the Lined Pond being emptied, Bio‑Organics shall engage the services of an independent suitably qualified professional to conduct a test on the integrity of the pond's liner to ensure it meets the in situ permeability requirement of less than 1 x 10-9 m/s and covers the whole pond without holes, tears, or failure of welds.
7.4.Notify the CEO in writing within 48 hours of engaging the services of the independent suitably qualified professional specified in requirement 7.3 and provide the name and contact details of that person with the notification.
7.5.The integrity test specified in requirement 7.3 shall be conducted within seven days of Bio-Organics engaging the services of an independent suitably qualified professional.
7.6.The result from the integrity test outlined above shall be provided directly to the CEO in writing within seven days of being completed.
Requirement 8.3 refers back to requirements 6 and 7:
8.3.Ensure that a minimum 300mm Freeboard is maintained in the Impervious Containment Facility at all times if those containment facilities are the Lined Pond or Leachate Retention Pond depicted in Schedule 3 and which meet the specifications set out under headings 6 and 7, respectively.
Requirement 11 deals with Groundwater Monitoring and provides:
11.1.Conduct groundwater monitoring using the services of an independent suitably qualified professional.
11.2.Commencing within one month of this Notice being issued, groundwater monitoring at all of the bores identified in Schedule 5 of this Notice.
11.3.Monitor, sample and analyse the parameters outlined in Schedule 6 of this Notice.
11.4.Conduct groundwater monitoring at the frequency outlined in Schedule 6 of this Notice.
11.5.Ensure that monthly monitoring is undertaken at least 25 days apart and quarterly monitoring is undertaken at least 80 days apart.
11.6.The groundwater monitoring specified in requirement 11.2 shall be collected and preserved in accordance with the relevant section· of the Australian Standard AS/NZS 5667.11:1998: Water Quality - Sampling, Part 11 - Guidance on Sampling of Groundwaters and Section 8.2.4 of Schedule B2 of the National Environment Protection (Assessment of Site Contamination) Measure 1999 ('NEPM method').
11.7.The groundwater samples referred to in requirement 11.2 shall be completed using low flow sampling equipment. Section 8.2.4 of the NEPM method shall be referred to for guidance on implementing low flow sampling methods.
11.8.The groundwater monitoring samples referred to in requirement 11.2 shall be submitted to a National Association of Testing Authorities (NATA) accredited laboratory for analyses of the parameters outlined in Schedule 6 of this Notice and in accordance with the requirements of requirement 11.6.
11.9.Notify the CEO in writing within seven days of identifying that any bore depicted in Schedule 5 has been rendered unusable.
11.10.Monitoring results for the groundwater sampling shall be provided within 28 calendar days of the sampling being completed and submitted to the CEO.
11.11.The groundwater sample results must be submitted to the CEO with the following requirements:
11.11.1.Data must be presented in tabular form and as a time series graph for each monitoring location outlined in Schedule 5;
11.11.2.Results must include complete set of laboratory analytical certificates; and
11.11.3.Results must include chain of custody documents.
The plaintiffs' submissions
The plaintiffs submitted that the notice is not a valid exercise of the power in s 68A because it does not make clear what an 'independent suitably qualified professional' is or what 'certification' may involve.
The defendant's submission
The defendant submitted that the expression 'independent suitably qualified professional' is sufficiently clear. The requirement of independence is reasonably construed as referring to someone not connected with Bio-Organics or any other person bound by the notice. Otherwise, a requirement to engage a suitably qualified professional to monitor or test or sample should be construed as an obligation to engage someone with a professional qualification that allows them to do that task. The requirement that something be certified by a suitably qualified professional refers to certification by a person with professional qualifications that allow them to carry out appropriate sampling or testing so as to be able to certify whether the particular matter meets the specifications of the requirement.
The defendant relied upon Environmental Protection Authority v Sydney Drum Machinery Pty Ltd (No 4)[34] where the requirement to engage a 'suitably qualified expert' was not held to be too uncertain. It appears that, from the context, the court was able to readily identify the relevant expert (a plumber). The challenge in that case was to other requirements of the notice (specifically, whether the stipulation of time was too uncertain).
[34] Environmental Protection Authority v Sydney Drum Machinery Pty Ltd (No 4) [2016] NSWLEC 59.
Conclusion
With respect, I agree that the requirement of independence may be reasonably construed as referring to someone not connected with Bio‑Organics or any other person bound by the notice (and perhaps also independent of the Department). I do not otherwise accept the defendant's submission.
The defendant's further submission, that 'suitably qualified professional' should be construed as a person with professional qualifications that allow them to sample, or test, or certify as the case requires, does not resolve the inherent uncertainty.
In oral submissions counsel for the CEO did not identify any known professional group or groups to which these requirements referred. It is not readily apparent on the face of the notice what qualification is required. The recipient of the notice is left to judge who might be suitably qualified to satisfy the CEO.
The answer may be apparent to someone with sufficient expertise, but it is not stated clearly within the terms of the notice. The plaintiffs could not know, from the notice itself, whether the CEO would accept that a qualification is suitable, or would require testing or certification by someone more or differently qualified. And a successor in title during the currency of the notice could not know what it is required to do, or whether its predecessor has complied with the notice.
The decision in Environmental Protection Authority v Sydney Drum Machinery Pty Ltd (No 4) is of limited assistance because the specification of the suitably qualified expert does not appear to have been challenged. The issue of certainty was also considered in Mailey v Sutherland Shire Council.[35] In that case, an emergency order issued by the Council in relation to a retaining wall required the appellant to '[e]ngage the services of a suitably qualified and registered professional such as a Geotechnical Engineer to provide a full assessment and detailed report on [the] retaining wall … and the risk of collapse to any Council assets' and to '[e]ngage the services of a suitably qualified and registered professional such as a Structural Engineer to provide a full assessment, detailed report and recommendation for the construction of a new retaining wall …'. The appellant was also required to obtain the services of a 'suitably qualified surveyor'. In dismissing the appeal, Preston CJ of LEC said:
A requirement that an engineer or surveyor be 'suitably qualified' and 'registered' is readily understandable. Indeed, as the Council submitted, the appellants, as the recipients of the order, had no problem in understanding the requirement and complied with it by engaging suitably qualified and registered engineers and a surveyor to undertake the work required by points 2, 3 and 5 of the order.
In this respect, I do not agree with the primary judge’s comment that the wording in points 2, 3 and 5 that the appellants engage a 'suitably qualified and registered professional such as…' a geotechnical engineer or a structural engineer, is 'additional arguably superfluous wording'. It is not to the point whether the wording was over and above what was required to specify the engineer to be engaged (i.e. superfluous), the question was whether the wording made the specification of the work required so uncertain as not to be a valid specification of the thing to be done for the purposes of item 21 of the Table to s 124 of the Act. I do not consider it did.[36]
[35] Mailey v Sutherland Shire Council [2017] NSWCA 343.
[36] Mailey v Sutherland Shire Council [76] ‑ [77] (Macfarlan & Meagher JJA agreeing).
The decision in Mailey v Sutherland Shire Council is, in my opinion, distinguishable. First, the notice identified the relevant professional group and in that way the qualification that was required ‑ geotechnical engineer or structural engineer or surveyor. Second, the notice referred to an existing 'dilapidation report' which recommended that those engineers be engaged. There does not appear to have been any provision, similar to s 68A(1), requiring matters to be specified in the notice. Third, the notice was directed only to an existing owner or occupier in relation to the state of the premises.
My finding regarding this aspect of the requirements in the notice affects the certainty of the notice in relation to management of all materials and ongoing groundwater monitoring.
There are particular additional challenges made by the plaintiffs to other aspects of these requirements, in particular requirement 11. In my opinion, it is unnecessary to resolve them in order to determine this application.
Requirement 12 - air emissions management
Requirements 12.1 and 12.2 provide:
12.1.Take all reasonable and practicable measures to ensure that odour emitted from the Premises shall not unreasonably interfere with the health, welfare, convenience, comfort or amenity of any person who is not on the Premises.
12.2.Use water sprays and other dust suppression measures to prevent or minimise dust generation from transport activities and operations at the Premises so that no visible dust crosses the boundary of the Premises.
The plaintiffs' submissions
The plaintiffs submit that, in these requirements, the closure notice does not clearly specify:
(1)what steps would constitute all reasonable and practicable measures;
(2)what odour emitted from the Premises might unreasonably interfere with the health, welfare, convenience, comfort or amenity of any person who is not on the premises; and
(3)what other dust suppression measures would comply with this requirement.
The defendant's submissions
The defendant submitted that requirement 12.1 must be read by reference to s 49(1) of the Act, which defines an 'unreasonable emission' and s 51 which requires the occupier of premises to 'take all reasonable and practicable measures to prevent or minimise emissions'. The defendant also submitted that the content of the obligation imposed by requirement 12.1 is to be determined by reference to the activities that were historically carried out and regulated on the site, and the necessary 'reasonable and practicable measures' would be well understood by the recipients of the notice.
Conclusion on requirement 12
With regard to requirement 12.1, I accept the plaintiffs' submission. It is insufficient to identify the issue of odour emitted from the premises and to require all persons who are or may later be bound by the notice to take all reasonable and practicable measures. Section 68A requires the CEO to specify the measures to be taken.
Requirement 12.2, in requiring water sprays and other dust suppression measures to prevent or minimise dust generation similarly identifies the problem, but does not specify what Bio-Organics (or any other person bound by the notice) must do.[37]
[37] In this regard see Environment Protection Authority v Simsmetal Ltd [1991] 1 VR 623; Perry v Garner [1953] 1 QB 335.
Severance
Having found that some of the requirements of the closure notice are not authorised by s 68A, the question is whether the notice is invalid or whether those requirements only are invalid or unenforceable.
The parties generally agreed that the common law doctrine of severability applied. That is, severance is available unless the invalid aspects of the closure notice form part of an 'inseparable context' or the closure notice would operate differently or produce a different result from that which was intended.[38] Another way of putting the question is whether the closure notice would have been made without the invalid portions.
[38] See Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211; (2008) 38 WAR 276 [92]. See also Harrington v Lowe (1996) 190 CLR 311, 328.
The finding of invalidity affects the audit requirement, but more generally the continuing requirements in relation to management and monitoring of groundwater. Without the requirements for ongoing management and monitoring, the notice does not operate in the way which, from its terms, it was intended to operate. In particular, the intended ongoing professionally supervised containment of waste and monitoring of the ground water, has been found to be invalid. In my opinion, severance of the invalid parts of the notice is not available.
Conclusion
A declaration should be made in terms of order 1 of the application.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZW
ASSOCIATE TO THE HONOURABLE JUSTICE ALLANSON9 AUGUST 2018
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