Cockburn Cement Ltd v The Minister for Environment (WA)
[2011] WASC 260
•12 SEPTEMBER 2011
COCKBURN CEMENT LTD -v- THE MINISTER FOR ENVIRONMENT (WA) [2011] WASC 260
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 260 | |
| Case No: | CIV:2022/2011 | 12 SEPTEMBER 2011 | |
| Coram: | EDELMAN J | 12/09/11 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appeal decision quashed in part and order absolute made | ||
| B | |||
| PDF Version |
| Parties: | COCKBURN CEMENT LTD WILLIAM RICHARD MARMION MLA, THE MINISTER FOR ENVIRONMENT FOR THE STATE OF WESTERN AUSTRALIA ANTHONY XAVIER SUTTON, THE APPEALS CONVENOR UNDER THE ENVIRONMENTAL PROTECTION ACT 1986 (WA) KEIRAN JAMES McNAMARA, THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF ENVIRONMENT AND CONSERVATION |
Catchwords: | Administrative law Application for orders quashing appeal decision of the Minister for the Environment of the State of Western Australia Jurisdictional error Whether conditions imposed by the appeal decision on a licence awarded under the Environmental Protection Act 1986 (WA) were within power Whether the conditions were reasonably capable of being regarded as related to the purpose of the licence Whether order absolute should be made in the first instance |
Legislation: | Environmental Protection Act 1986 (WA) |
Case References: | Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490 City of Mandurah v Hull [2000] WASCA 353 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163 Newbury District Council v Secretary of State for the Environment [1981] AC 578 Protean (Holdings) Ltd v Environmental Protection Authority [1977] VR 51 Re Warden S Richardson; Ex Parte Binthalya Holdings Pty Ltd [2011] WASC 56 Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
WILLIAM RICHARD MARMION MLA, THE MINISTER FOR ENVIRONMENT FOR THE STATE OF WESTERN AUSTRALIA
First Respondent
ANTHONY XAVIER SUTTON, THE APPEALS CONVENOR UNDER THE ENVIRONMENTAL PROTECTION ACT 1986 (WA)
Second Respondent
KEIRAN JAMES McNAMARA, THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF ENVIRONMENT AND CONSERVATION
Third Respondent
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Catchwords:
Administrative law - Application for orders quashing appeal decision of the Minister for the Environment of the State of Western Australia - Jurisdictional error - Whether conditions imposed by the appeal decision on a licence awarded under the Environmental Protection Act 1986 (WA) were within power - Whether the conditions were reasonably capable of being regarded as related to the purpose of the licence - Whether order absolute should be made in the first instance
Legislation:
Environmental Protection Act 1986 (WA)
Result:
Appeal decision quashed in part and order absolute made
Category: B
Representation:
Counsel:
Applicant : Mr H H Jackson
First Respondent : Mr R M Mitchell SC & Ms M N Ashford
Second Respondent : Mr R M Mitchell SC & Ms M N Ashford
Third Respondent : Mr R M Mitchell SC & Ms M N Ashford
Solicitors:
Applicant : Minter Ellison
First Respondent : State Solicitor for Western Australia
Second Respondent : State Solicitor for Western Australia
Third Respondent : State Solicitor for Western Australia
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Case(s) referred to in judgment(s):
Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490
City of Mandurah v Hull [2000] WASCA 353
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Protean (Holdings) Ltd v Environmental Protection Authority [1977] VR 51
Re Warden S Richardson; Ex Parte Binthalya Holdings Pty Ltd [2011] WASC 56
Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30
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- EDELMAN J:
(These reasons were delivered orally and have been edited.)
Introduction
1 Cockburn Cement Ltd (CCL) is the applicant in this matter. In its application dated 10 June 2011 it sought orders arising from a decision (the Appeal Decision) by the first respondent, the Minister for the Environment for the State of Western Australia (the Minister). The second respondent is the Appeals Convenor, appointed under s 107A of the Environmental Protection Act 1986 (WA) (the EP Act) with the duty to report to the Minister on its findings and recommendations in respect of an appeal. The third respondent is the Chief Executive Officer (the CEO) of the Department of Environment and Conservation. Under s 59(1)(j) of the EP Act, the CEO has the power to amend a licence issued under pt V of the EP Act to give effect to the Appeal Decision of the Minister.
2 In this application, CCL initially sought orders including writs of certiorari (in English, 'to be more fully informed') to remove the matter into this court in order to quash the decision of the Minister. It sought orders nisi ('unless orders') directed at the Minister and the Appeals Convenor requiring them to show cause why their actions or decisions should not be quashed for jurisdictional errors. The Minister was alleged to have made jurisdictional errors in the Appeal Decision. The Appeals Convenor was said to have made jurisdictional errors in his April 2011 report to the Minister prior to the Appeal Decision.
3 CCL also sought various other relief including 'unless orders' against the CEO requiring him to show cause why a writ of prohibition should not be issued against him preventing him from giving effect to the Appeal Decision as he would be required to do under s 110(1) of the EP Act.
4 There were seven separate grounds upon which the orders were sought against each of the first and second respondents. Shortly before this hearing, counsel for the respondents, Mr Mitchell SC and Ms Ashford, filed succinct submissions which argued that one of those grounds of appeal (ground 7) had been made out. The submissions were clearly made and, for the reasons I will explain, the concession was correct, and appropriate. At the hearing of this matter I was provided with very helpful oral submissions from senior counsel for the respondents, and also from counsel for CCL.
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5 These reasons will summarise why I accept the respondents' concession and why I consider that, as counsel for the respondents proposed, it is in the interests of justice for this court to make an order absolute under O 56 r 1(6) of the Rules of the Supreme Court 1971 (WA), rather than an 'unless' or show cause order. I have focused only upon the facts which concern ground 7. Those facts are set out in the affidavit evidence before me, in particular the affidavit of Mr Darrin Strange sworn on 9 June 2011.
6 Since CCL does not press the remaining grounds,I have not considered in these reasons the evidence in relation to them including, for example, the evidence concerning the process by which the decision of the Minister was reached.
Background and statutory licensing regime
7 CCL is a producer of lime and cement products. It operates a plant called the Munster Plant which is approximately 20 km south of Fremantle. The Munster Plant produces almost all of the quicklime which is consumed in Western Australia. That quicklime is vital to the production processes in the alumina and gold industries.
8 The Munster Plant has six cement and quicklime kilns, the largest of which are kilns 5 and 6. These two are the largest kilns of their type in the world.
9 CCL operates under a state agreement (the State Agreement) which was ratified by the Cement Works (Cockburn Cement Limited) Agreement Act 1971 (WA). The State Agreement has been varied on a number of occasions. Clause 7(4) of the State Agreement provides CCL with a right to be granted all licences, subject to reasonable terms and conditions to be agreed by the State and CCL, to carry out its operations or otherwise obtain raw material required by CCL for its cement and quicklime manufacturing operations.
10 CCL's emissions are regulated under pt V of the EP Act and under the Environmental Protection Regulations 1987 (WA) (the EP Regulations). CCL's operations at the Munster Plant fall within the meaning of 'prescribed premises' under r 5 of the EP Regulations, and sch 1 to those regulations.
11 Section 56(1)(a) of the EP Act provides that, subject to exceptions, the occupier of any prescribed premises who causes or increases an emission, or permits an emission to be caused or increased from the
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- prescribed premises, commits an offence unless 'he is the holder of a licence issued in respect of the prescribed premises and so causes, increases, permits or alters in accordance with any conditions to which that licence is subject'.
12 The CEO of the Department of Environment and Conservation (who is the third respondent to this application) has the power to grant a licence subject to terms and conditions which the CEO 'considers to be necessary or convenient for the purposes of [the EP Act] relating to the prevention, control, abatement or mitigation of pollution or environmental harm': see s 57(3)(a) and s 62(1) of the EP Act.
13 Section 58(1) of the EP Act provides that the holder of a licence who contravenes a condition to which the licence is subject commits an offence.
14 CCL holds a licence for the operations at these premises; licence L4533/1967/14 (the Licence). The Licence regulates the operation of the kilns at the Munster Plant. It requires CCL to operate its cement and quicklime works in compliance with specified emission limits and requires CCL to monitor and to report on environmental performance.
15 The Licence was issued on 20 March 2009, with a commencement date of 31 March 2009. The Licence expires on 30 March 2012. Until 30 March 2012, the Licence 'shall continue in force': s 63 of the EP Act. For operations after 30 March 2012, CCL will need to obtain a new licence for operations which fall within the EP Act.
The Amended Licence and the appeal
16 The CEO of the Department of Environment and Conservation has the power to make amendments to the Licence by removing or varying any condition or subjecting the Licence to a new condition: s 59(1)(a) and s 59(1)(b) of the EP Act.
17 On 31 March 2010 the Department of Environment and Conservation sent CCL a draft amended licence, which indicated its intention to exercise this power. Correspondence and exchange followed between the Department and CCL. The proposed amendments to the Licence went through three drafts. An amended licence was not issued until 20 December 2011 (the Amended Licence). The Amended Licence imposed a number of more stringent conditions than the original Licence. Two of the amendments to the Licence introduced a requirement that CCL
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- install new pollution control equipment at kiln 6 (see conditions 57 and 58 at page 325 of the affidavit of Mr Strange).
18 CCL did not exercise its power to appeal the Amended Licence. However, s 102(3)(b) of the EP Act allows a third party to appeal to the Minister from an amendment to a licence. On 11 January 2011, the Appeals Convenor wrote to CCL and explained that appeals had been brought to the Minister by members of the community who claimed to be affected by the operations of the Munster Plant. The submissions made by those members of the public were provided to CCL. The Appeals Convenor invited CCL to respond to the matters raised in the appeals.
19 Subsequently (in an undated letter) Mr Strange responded on behalf of CCL to the 11 January 2011 letter from the Appeals Convenor and to the matters which had been raised in the appeal submissions.
20 Other steps occurred before the decision of the Minister. A report was produced by the Department of Environment and Conservation: see Strange affidavit, page 406 and s 106(1)(b) of the EP Act. The Appeals Convenor produced and submitted to the Minister a 53 page report : see Strange affidavit, page 392 and s 106(1)(d) of the EP Act.
21 On 17 May 2011, following the submission of a report from the Appeals Convenor, the Minister partially allowed the appeals. The Minister made a number of further amendments to the Amended Licence, three of which were initially relevant to this application. These were:
(1) That conditions 57 and 58 be modified to require the installation of new pollution control equipment for kiln 5 as well as kiln 6. The pollution control equipment was required to be commissioned and operating by 30 November 2012. I will refer to this amendment as 'the Kiln 5 Decision'.
(2) A condition be included in the Amended Licence that requires CCL to monitor and report odour emissions, with monitoring frequency, methodology and reporting requirements to be discussed with the Department of Health and then specified in the Licence by the Department of Environment and Conservation. Further, that the environmental improvement requirements (condition 56) be implemented by CCL within 14 days of it being approved in writing by the Department of Environment and Conservation.
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- (3) A requirement that CCL shall cease feed of raw material to any kiln within five minutes of a particular event and that CCL shall not recommence feed to the relevant kiln until CCL provides written evidence, to the satisfaction of the Department of Environment and Conservation that the problem that triggered the event has been investigated by a suitably qualified technician, and rectified.
This application
22 As explained in the introduction to these reasons, CCL challenged the Minister's decision and the report of the Appeals Convenor on seven different grounds. The challenges related to the three amendments described above at [21].
23 One of the grounds upon which the decision was challenged (ground 7) was that the Appeal Decision,
imposed [sic] an unlawful fetter on the exercise of the [CEO's] discretion in that it requires that works be installed by a certain date in circumstances where:
(a) such works can only be installed in accordance with a works approval granted by the [CEO]; and
(b) the date is after the date on which the Amended Licence expires.
- This ground focused only upon the amendment which I numbered (1) in [21] above, and which I have described as the Kiln 5 Decision. It concerns the requirement that new pollution control equipment for kiln 5 be commissioned and operating by 30 November 2012.
24 The power to hear appeals, and to impose additional conditions, is conferred upon the Minister by clear implication from the provisions in pt VII of the EP Act, particularly s 102(2). The appeal is apparently one which proceeds by way of hearing de novo (from the beginning): Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194, 203 [13] (Gleeson CJ, Gaudron & Hayne JJ).
25 Section 102(5) of the EP Act provides that pending the determination of the appeal, 'in respect of an amendment, the amendment shall be deemed not to have been made'. This subsection confirms what would otherwise be implied into the appellate power. The appellate power must be exercised 'in respect of' an amendment.
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26 In exercising an appellate power in respect of an amendment, the Minister cannot make a decision which would go beyond the power of the primary decision maker, the CEO of the Department of Environment and Conservation. That power is to 'subject' the Licence, by amendment, to a condition. The notion that the condition is something to which a licence must be 'subject' derives from s 58, s 59(1)(a), s 59(1)(b) and s 62 of the EP Act.
27 Senior counsel for the respondents said that he had not been able to locate any authority which considered when a condition will satisfy the requirement that it is 'subject' to a licence under the EP Act. My research has not disclosed any authority either. Senior counsel for the respondents referred to the approach taken in the planning context which requires that conditions imposed be 'fairly and reasonably relate[d] to [a] proposed development': Newbury District Council v Secretary of State for the Environment [1981] AC 578, 600 (Viscount Dilhorne).
28 This approach has been applied in the planning context in Australia: Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30, 37 [2] (McHugh J), 87 - 88 [157] (Callinan J). In that planning context, the general power to impose conditions has been described as 'not giving an unlimited discretion as to the conditions which may be imposed, but as conferring a power to impose conditions which are reasonably capable of being regarded as related to the purpose for which the function of the authority is being exercised': Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490, 499 (Walsh J).
29 The same approach is taken in Victoria under provisions in the Environmental Protection Act 1970 (Vic). In Protean (Holdings) Ltd v Environmental Protection Authority [1977] VR 51, a licence to transport and discharge waste into the environment from two specified chimney stacks could be subject to conditions, limitations or restrictions imposed by the Environmental Protection Authority. Gillard J held that the general power to impose those conditions must 'fairly and reasonably relate' to the permitted use (60). The same approach should apply here to the power in the EP Act to make a licence 'subject' to a condition.
30 Senior counsel for the respondents submitted that the condition imposed by the Kiln 5 Decision did not meet such requirements. In other words it was not 'reasonably capable of being regarded', or (which amounts to much the same thing) was not 'fairly and reasonably related' to the Licence. This was submitted to be so for two reasons. First, the
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- Kiln 5 Decision does not require that anything be done during the term of the Amended Licence in relation to kiln 5. The Amended Licence expires on 30 March 2012 but the Kiln 5 Decision requires the pollution control equipment to be commissioned and operating by 30 November 2012. Secondly, the emissions to be controlled by the Kiln 5 Decision are not emissions which are authorised by the Licence. After 30 March 2012, when the Licence has expired, CCL's emissions will be regulated by the terms of a new licence: see [15] above.
31 I accept this submission. For these two reasons that part of the Appeal Decision which was the Kiln 5 Decision was beyond the power of the Minister. That aspect of the Appeal Decision should be quashed as a jurisdictional error: Craig v The State of South Australia [1995] HCA 58;(1995) 184 CLR 163, 177 (Brennan, Deane, Toohey, Gaudron & McHugh JJ).
32 In light of the concession by the respondents, at the hearing before me CCL did not press its challenges to those aspects of the Appeal Decision which concerned the further amendments to the Amended Licence numbered (2) and (3) to which I have referred at [21] above. Further, with one exception concerning costs (referred to below at [37]), counsel for CCL did not seek any further orders other than those which the respondents conceded should be made and which, for the reasons I have explained, I consider are appropriate to make.
Conclusion
33 Order 56 r 1(6) of the Rules of the Supreme Court,permits this court to make an order absolute in the first instance rather than an 'unless' or show cause order. The test is whether the order absolute is 'necessary for the advancement of justice'. I am satisfied that it is necessary for the advancement of justice to make the order absolute in this case for two reasons.
34 First, as I have explained in these reasons, I am satisfied that the respondents have properly conceded that the matter should be removed into this court for the purposes of quashing that part of the Appeal Decision which I have described as the Kiln 5 Decision. The Kiln 5 Decision was in excess of power and was a jurisdictional error.
35 Secondly, it is extremely unlikely that a different result would be achieved if another hearing were conducted, which would also be before a single judge of this court, in relation to an order absolute. The expression 'advancement of justice' is intended to encompass a wide range of
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- considerations. Issues concerning the avoidance of delay and cost, as well as the public interest in the efficient allocation of limited public resources, are relevant factors to consider in deciding whether an order is necessary for the advancement of justice: Re Warden S Richardson; Ex Parte Binthalya Holdings Pty Ltd [2011] WASC 56 [38] (Corboy J).
36 The decision to make an order absolute is a discretionary decision, although the requirement of necessity means that it is unlikely to be a common order at first instance. In this case the parties all submit that the order absolute should be made in the first instance and I am satisfied that it appears necessary for the advancement of justice to do so.
37 At the hearing before me, counsel for CCL sought a certificate for senior counsel for work done up to, but not including, the oral hearing of this matter. Clause 5(1) of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006 provides that the practice of certification for second counsel or for Senior Counsel
is no longer required by the Scale, which brings the practice in this State into line with other Australian jurisdictions. However, where fees are claimed for second counsel or for Senior Counsel, it is anticipated that the Taxing Officer shall consider whether the briefing of second counsel, or Senior Counsel, was reasonably necessary in the circumstances.
38 In cases, such as this case, where the application raises significant issues, and where some of those issues involve issues of some complexity, a taxing officer may consider it to be 'entirely reasonable and proper' for senior counsel and second counsel to be engaged: City of Mandurah v Hull [2000] WASCA 353 [5] (Kennedy, Anderson & McKechnie JJ). The usual course now is for the taxing officer, seized of all the costs issues in the case, to make this assessment. That approach should be taken in this case.
39 The orders I would make are in the terms proposed by the parties. They are as follows:
(a) A writ of certiorari issue against the first respondent to remove into this court for the purposes of quashing that part of the decision of the first respondent made on 17 May 2011 to allow in part appeals 002 and 003 brought respectively by David Gray and Toni Cowell under s 102(3) of the EP Act against the amendment of licence L4533/1967/14: Cement or Lime Manufacturing, Rockingham Road, Munster - Cockburn Cement Ltd by which the
- first respondent decided that conditions 57 and 58 of the Licence be modified to require the installation, commissioning and operation of new pollution control equipment for plant known as 'kiln 5' of the applicant's plant by 30 November 2012 (the Kiln 5 Decision).
- (b) The Kiln 5 Decision be quashed on the return of the order nisi without further order.
(c) The applicant's application be otherwise dismissed.
(d) The respondents pay the applicant's costs of these proceedings to be taxed.
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