Bond v Chief Executive Department of Environment and Heritage Protection
[2016] QPEC 40
•30 August 2016
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Bond v Chief Executive Department of Environment and Heritage Protection [2016] QPEC 40
PARTIES:
PETER BOND
(appellant)
v
CHIEF EXECUTIVE DEPARTMENT OF ENVIRONMENT AND HERITAGE PROTECTION
(respondent)
FILE NO/S:
3070 of 2016
DIVISION:
Planning and Environment
PROCEEDING:
Application
ORIGINATING COURT:
Planning and Environment Court at Brisbane
DELIVERED ON:
30 August 2016
DELIVERED AT:
Brisbane
HEARING DATE:
26 August 2016
JUDGE:
Everson DCJ
ORDER:
The application is dismissed.
CATCHWORDS:
APPLICATION – Administrative Law – decision – natural justice – procedural fairness – review of decision to issue an Environmental Protection Order – whether the Environmental Protection Order was unlawful.
Environment Protection Act 1994, s 521, 531, 532, 536, 539, 360, 363AD
Stead v State Government Insurance Commission (1986) 161 CLR 141
COUNSEL:
D R Gore QC & N D Loos for the appellant
J M Horton QC & E L Hoiberg for the respondent
SOLICITORS:
Thomson Geer for the appellant
Herbert Smith Freehills for the respondent
Introduction
This is an application in pending proceeding seeking the determination of a preliminary point in an appeal against the decision of the respondent taken to have been made pursuant to s 521(10) of the Environment Protection Act 1994 (“EPA”) to confirm the decision of the delegate of the respondent to issue an Environmental Protection Order dated 25 May 2016 to the appellant (“the EPO”).
The EPO was issued to the appellant on the basis that he was a related person of a high risk company, Linc Energy Limited pursuant to s 363AD of the EPA. The EPO requires the appellant to take action to rehabilitate or restore land at 357 Kummerows Road, Chinchilla because of environmental harm and/or contaminates on the land where Linc Energy Limited carried out an underground coal gasification plant.[1] Significantly the appellant was also required to give the respondent a bank guarantee or other security to secure his compliance with the EPO in the sum of $5,500,000 by 25 August 2016.[2] By order of Rackemann DCJ dated 12 August 2016 the operation of the EPO is stayed pending the final determination of this application.
[1]Affidavit of M F Marshall (sworn 9 August 2016), Ex “MFM-01”.
[2]Ibid.
In this application the appellant alleges that the EPO was unlawful because it did not comply with s 360 of the EPA and that the appellant was denied procedural fairness. As a consequence an order is sought pursuant to s 539 of the EPA that the appeal be allowed.
The relevant statutory provisions
The requirements of an environmental protection order are set out in s 360 of the EPA. Relevantly it “must state the review or appeal details”.[3] The term “review or appeal details” is defined in Schedule 4 as relevantly meaning a statement in the notice or order “about the period or time allowed for making the application for a review or for starting an appeal”.[4]
[3]EPA, s 360(1)(d).
[4]EPA, s 360(1)(c).
The procedure for an internal review of a decision to issue an environmental protection order is set out in s 521 of the EPA. It is in the following terms:
“ 521 Procedure for review
(1) A dissatisfied person may apply for a review of an original decision.
(2) The application must –
(a) be made in the approved form to the administering authority within –
(i) 10 business days after the day on which the person receives notice of the original decision or the administering authority is taken to have made the decision (the review date); or
(ii) the longer period the authority in special circumstances allows; and
(b) be supported by enough information to enable the authority to decide the application.
(3) On or before making the application, the applicant must send the following documents to the other persons who were given notice of the original decision –
(a) notice of the application (the review notice);
(b) a copy of the application and supporting documents.
(4) The review notice must inform the recipient that submissions on the application may be made to the administering authority within 5 business days (the submission period) after the application is made to the authority.
(5) If the administering authority is satisfied the applicant has complied with subsections (2) and (3), the authority must, within the decision period –
(a) review the original decision; and
(b) consider any submissions properly made by a recipient of the review notice; and
(c) make a decision (the review decision) to –
(i) confirm or revoke the original decision; or
(ii) vary the original decision in a way the administering authority considers appropriate.
(6) The application does not stay the original decision.
(7) The application must not be dealt with by –
(a) the person who made the original decision; or
(b) a person in a less senior office than the person who made the original decision.
(8) Within 10 business days after making the review decision, the administering authority must give written notice of the decision to the applicant and persons who were given notice of the original decision.
(9) The notice must –
(a) include the reasons for the review decision; and
(b) inform the persons of their right of appeal against the decision.
(10) If the administering authority does not comply with subsection (5) or (8), the authority is taken to have made a decision confirming the original decision.
(11) Subsection (7) applies despite the Acts Interpretation Act 1954, section 27A.
(12) This section does not apply to an original decision made by –
(a) for a matter, the administration and enforcement of which has been devolved to a local government—the local government itself or the chief executive officer of the local government personally; or
(b) for another matter—the chief executive personally.
(13)Also, this section does not apply to an original decision to issue a clean-up notice.
(14) In this section –
decision period means –
(a) if a submission is received within the submission period—15 business days after the administering authority receives the application; or
(b) if no submissions are received within the submission period—10 business days after the administering authority receives the application.”
A person who is dissatisfied with a reviewed decision may appeal the decision to the Planning and Environment Court pursuant to s 531 of the EPA.[5] Section 532 provides for the period within which a notice of appeal must be filed although the court may extend the period for filing a notice of appeal.[6] Section 536 sets out the procedure for an appeal in the following terms:
“(1) The procedure for an appeal is to be in accordance with the rules of court applicable to the appeal or, if the rules make no provision or insufficient provision, in accordance with directions of the judge.
(2) An appeal is by way of rehearing, unaffected by the administering authority’s decision.”
[5]EPA s 531(1).
[6]EPA s 533(3).
Pursuant to s 539, in deciding an appeal, the Court may: -
“(a) confirm the decision appealed against; or
(b) vary the decision appealed against; or
(c)set aside the decision appealed against and make a decision in substitution for the decision set aside.”
The relevant factual matrix
The EPO relevantly stated:
“Generally, a request to have a decision reviewed must be made:
·within 10 business days of the decision being notified to the person;
·be supported by enough information to enable the department to decide the application for review; and
·be made using the application for review of an original decision form (EM709).
Where an application has been made for a decision to be reviewed, the applicant may also apply to the relevant court for a stay of the decision to secure the effectiveness of the review.”[7]
[7]Affidavit of M F Marshall (sworn 9 August 2016), Exhibit MFM-01, p 20.
Within the nominated ten day period the appellant’s solicitor Mr Marshall lodged an application for review of the original decision in the form approved pursuant to the EPA. Among the reasons stated as to why he believed the decision was unreasonable or inappropriate were the following passages:
“The EPO is lengthy, contains multiple technical requirements and refers to and relies upon a range of technical reports and studies. On any fair and reasonable approach, this would constitute “special circumstances” within the meaning of section 521(2)(a)(ii) Environmental Protection Act 1994 (EP ACT). Accordingly, the administering authority should have determined that a period of 10 business days was not a sufficient period of time to enable Mr Bond to consider the contents of the EPO, take advice from his consultants and formulate grounds in support of this application for internal review.
…
The EPO refers to and relies upon a range of technical documents and reports of experts which Mr Bond does not have access to and which were not provided to Mr Bond at the time of issuing the EPO.”[8]
[8]ibid, p 119.
The application for review which was sent under cover of a letter dated 8 June 2016[9] elicited a response on behalf of the respondent by letter dated 22 June 2016 in, inter alia the following terms:
[9]ibid, p 122.
“The Application states that the Environmental Protection Order dated 25 May 2016 relied upon ‘a range of technical documents and reports of experts’ to which Mr Bond does not have access. We provide these documents to you now, on the enclosed USB stick that contains the following documents.
…
In light of the special circumstances, the Department is inclined to grant a longer period of time for your client to complete his application for internal review of the original decision.
We are minded to allow your client 20 business days from the date of this letter to amend or add to his application for internal review. Please advise if your client wishes to accept this additional time to take the steps foreshadowed.”[10]
[10]ibid, p 122-123.
This in turned resulted in a response from Mr Marshall who stated in a letter dated 24 June 2016:
“We note that the Department has now provided us with a USB containing all of the documents referred to in the Environmental Protection Order (EPO) issued to our client.
Your letter also acknowledges our submissions that there are “special circumstances” present that warrant the granting of a longer period of time for our client to apply for a review of the decision to issue the EPO. The Department has proposed to allow our client 20 business days from 22 June 2016 in which to “amend or add” to his application for internal review.
…
We acknowledge that your letter is an attempt by the Department to rectify matters. However, we have serval concerns with the proposal you have advanced.
Firstly, we are unware of any provision in the Environmental Protection Act (EP Act) that would authorise the changing or extending of an internal review period that has already commenced.
...
The proposed extension of the internal review period by 20 business days is likely, in our view, to be ultra vires or otherwise unlawful under the EP Act.
…
Having regard to the above matters our client does not agree to the proposal advanced by the Department, on the grounds that it will in fact compound the failure to afford our client natural justice, is likely to be ultra vires and carries an unacceptable risk to our client that he may lose his right of appeal to the Planning and Environment Court.”[11]
[11]ibid, p 124 -125.
A letter from the solicitors acting on behalf of the respondent dated 12 July 2016 thereafter stated:
“You may be aware that on 30 June 2016 liquidators from Linc Energy Limited disclaimed some of Linc’s property, including land, mining and petroleum tenures, environmental authorities and some other property at the Chinchilla site.
In light of this development, the Department is considering its position in relation to the rehabilitation of the site and other issues raised in your application for internal review of the Environmental Protection Order issued to Mr Peter Bond.
I am instructed that no decision has been made in relation to that EPO or your client’s challenge to it. I expect to be in a position to make known to you the course the Department intends to pursue by the end of the week.”[12]
[12]ibid, p 129.
Eventually the chain of correspondence concluded with a further letter from the solicitors acting on behalf of the respondent dated 15 July 2016 in the following terms:
“We agree that any proposed extension of the internal review period may be ultra-vires and as such, pursuant to Section 521(10) of EP Act, the Department is taken to have made a decision confirming the decision to issue the EPO.
If your client intends to challenge that decision, on our calculations your client must file any appeal to the Planning and Environment Court by 5 August 2016.”[13]
[13]ibid, p 130.
Did the respondent comply with s 360 of the EPA?
The appellant alleges that the EPA was invalid because the respondent was required to determine whether there were special circumstances pursuant to s 521(2)(ii) of the EPA when stating the appropriate review or appeal details in the EPO. It is submitted that the appellant is of the view that a period of more than 10 days was appropriate for the making of an application for review and that this period should have been stated in the EPO. It is submitted that the respondent’s letter dated 22 June 2016 made it clear that the respondent was of the view that there were special circumstances and accordingly s 360(1)(d) was not complied with, making the EPO invalid.
I do not accept this argument. The letter dated 22 June 2016 was sent in response to the application for review of the original decision, which listed in great detail the grounds on which the appellant contended that there were special circumstances. There is no evidence before me that the EPO was defective at the time it was issued because the respondent apprehended these special circumstances at that stage as compared to later when it received the application to review. The nomination of the 10 day period together with the surrounding information quoted above in the EPO suggests that the respondent, at that stage, was not of the view that special circumstances, of the kind identified subsequently by the respondent in its application for review, were present. I am of the view that the EPO complied with s 360 of the EPA and was not invalid because it failed to acknowledge special circumstances in stating the review or appeal details.
Was the appellant otherwise denied procedural fairness?
Although s 529 of the EPA provides a dissatisfied person with the right to review a decision to issue an environmental protection order and provides that the administering authority must make a review decision and notify the applicant and persons who were given notice of the original decision (the review decision),[14] where the administering authority does not comply with these requirements it is taken to have made a decision confirming the original decision.[15] Accordingly while the appellant had a right to apply for a review of the original decision to issue the EPO, there was no right to compel the administering authority to make a review decision as a consequence of s 521(10). In the absence of a mandatory requirement that this occur I am of the view that the appellant was not denied a procedural fairness as a consequence of the deemed refusal of his application for review of the original decision.
[14]EPA s 521(5) & (8).
[15]EPA s 521(10).
Discretionary matters
The appellant has lodged a notice of appeal within the prescribed time. This appeal is by way of rehearing, unaffected by the administering authority’s decision. There is absolutely no material before me which deposes to the appellant having suffered any prejudice by appealing in circumstances where the respondent did not make a decision pursuant to his application for review. Because of the wide jurisdiction of the court any arguable failings on the part of the respondent in its conduct prior to the matter coming before the court are of no consequence on the material before me. It should be noted that not every departure from the rules of natural justice warrants a remedy if such a remedy would be futile. In the context of an appeal from a decision of a court at first instance the High Court observed in Stead v State Government Insurance Commission:[16]
“Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.
For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.”
[16](1986) 161 CLR 141 at 161.
The tenor of the correspondence from the respondent’s solicitors dated 12 July 2016 is not suggestive that it is likely that the appellant would have received a favourable decision on review in any event. It appeared that Linc Energy Limited was no longer in a position to carry out any of its rehabilitation obligations in respect of the site of its underground coal gasification plant. If anything this may have strengthened the respondent’s resolve to ensure compliance with the EPO. In any event nothing turns on what the respondent may have been contemplating, as the appropriate forum for determining the dispute between the parties is the court which is now seized of the entire dispute and which has a wide jurisdiction to determine all of the issues between the parties unfettered by the original decision of the respondent.
Accordingly I am of the view that it would be futile to grant relief which contemplated the respondent now undertaking a review of the original decision to issue the EPO to the applicant or which contemplated the issuing of a new environmental protection order solely because the applicant was not afforded a review of the original decision.
Conclusion
The EPO did comply with s 360(1)(d) of the EPA. The appellant was not denied procedural fairness. In any event it would be futile to grant the relief sought by the appellant given the powers of the court to hear and determine the issues in dispute between the parties.
Order
The application is dismissed.
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