Crush and Haul Pty Limited v Environment Protection Authority

[2023] NSWLEC 60

Land and Environment Court

New South Wales

Medium Neutral Citation:

Crush and Haul Pty Limited v Environment Protection Authority [2023] NSWLEC 60

Hearing dates:

24 May 2023

Date of orders:

08 June 2023

Decision date:

08 June 2023

Jurisdiction:

Class 4

Before:

Pritchard J

Decision:

The Court makes the following orders:

(1) The summons dated 19 April 2023 is dismissed.

(2) The applicant to pay the respondent’s costs.

Catchwords:

JUDICIAL REVIEW – development consent granted – integrated development – general terms of approval granted – environmental protection licence application deemed to be refused – whether refusal lawful – whether Environment Protection Authority (EPA) obliged to issue licence – whether question of fit and proper person lawfully considered after grant of general terms – statutory interpretation – whether s 4.50(1) of the Environmental Planning and Assessment Act 1979 (NSW) overrides Chapter 3 of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) – s 7(2)(a) POEO Act – utility of relief – EPA power to revoke licence once granted – appeal dismissed

Legislation Cited:

Environment Protection and Assessment Act 1979 (NSW) s 4.50

Environmental Planning and Assessment Regulation 2000 (NSW) cl 70

Environmental Planning and Assessment Regulation 2021 (NSW) s 45(1)

Interpretation Act 1987 (NSW) ss 34(1), 34(2)(a), 34(2)(f)

Mining Act 1992 (NSW) ss 380A, 396(1)

Mining and Petroleum Legislation Amendment Act 2014 (NSW)

Mining and Petroleum Legislation Amendment Act 2022 (NSW)

Petroleum (Onshore) Act 1991 (NSW)

Protection of the Environment Operations Act1997 (NSW) ss 3, 7, Ch 3, ss 45, 46, 51, 53, 55, 60, 79, 83, 287

Cases Cited:

Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1

Butler v A-G (Vic) (1961) 106 CLR 268

CCOM Pty Ltd v Jiejing Pty Ltd (1992) 36 FCR 524

Commissioner of Police (NSW) v Eaton (2013) 252 CLR 1; [2013] HCA 2

Cooper Brookes (Wollongong) Pty Ltd 11 Federal Commissioner of Taxation (1981) 14 7 CLR 297

Deputy Commissioner of Taxation v Dick [2007] NSWCA 190; (2007) 242 ALR 152

Environment Protection Authority v Crush and Haul Pty Ltd [2022] NSWLEC 113

Goodwin v Phillips (1908) 7 CLR 1

Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147

Mitty’s Authorised Newsagency v Registrar of Trade Marks (1983) 78 FLR 217

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Rose v Hvric (1963) 108 CLR 353

Ross v The Queen (1979) 141 CLR 432

Shergold v Tanner (2002) 209 CLR 126; [2002] HC 19

SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190

Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531

Textel Pty Ltd v Commonwealth Bank of Australia [1994] 2 VR 298

Trade Practices Commission v Collings Construction Co Pty Ltd (1994) 53 FCR 137

Texts Cited:

Herzfeld and Prince, Interpretation (2nd ed, 2020, Thomson Reuters (Professional) Australia Limited)

Pearce and Geddes, Statutory Interpretation in Australia (9th ed, 2019, LexisNexis Butterworths)

Category:

Principal judgment

Parties:

Crush and Haul Pty Limited (Applicant)
Environment Protection Authority (Respondent)

Representation:

Counsel:
J Lazarus SC and C Novak (Applicant)
R Beasley SC and B Kaplan (Respondent)

Solicitors:
Hones Lawyers (Applicant)
Litigation Branch, Environment Protection Authority (Respondent)

File Number(s):

2023/125768

Publication restriction:

Nil

JUDGMENT

Introduction

1. These Class 4 proceedings concern an application No 21745 made by the applicant, Crush and Haul Pty Limited (Crush and Haul), to the respondent, the Environment Protection Authority (EPA), on 20 September 2022 for an environment protection licence (EPL application) under s 53 of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act).

2. On around 21 October 2015, Rixa Quarries Pty Ltd (Rixa) submitted development application No 0328/16DA for integrated development (the development application) to Coffs Harbour City Council (Council). On 24 November 2020, the Northern Regional Planning Panel determined to approve the development application pursuant to s 4.16 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). On 26 November 2020, Council issued a notice of determination to Rixa pursuant to s 4.18 of the EPA Act.

3. On 8 September 2022, Crush and Haul was convicted in this Court of one offence against s 48(2) of POEO Act for failure to hold an environment protection licence to carry on the scheduled activity of land-based extractive activity at Corindi Quarry (the quarry). [1] From 1 January 2018 to 31 December 2018, Crush and Haul extracted, processed or stored more than 30,000 tonnes of extractive materials at the quarry. Crush and Haul’s then director, Mr Luke Cauchi, was also convicted of an offence against s 169A(2) of the POEO Act as he knew or ought reasonably to have known that an executive liability offence against s 48(2) would be or was being committed by Crush and Haul, and Mr Cauchi failed to take all reasonable steps to prevent or stop the commission of that offence.

   1. Environment Protection Authority v Crush and Haul Pty Ltd; Environment Protection Authority v Cauchi [2022] NSWLEC 113 (Preston CJ) (the 2022 conviction).

4. The EPA is deemed to have refused the EPL application by operation of s 287(3) of the POEO Act.

5. By summons filed 19 April 2023, Crush and Haul seeks:

Declarations

(1) A declaration that the Respondent is required, by operation of section 4.50(1) of the Environmental Planning and Assessment Act 1979, to issue an Environment Protection Licence to the Applicant in respect of Environment Protection Licence Application No. 21745 (EPL Application), subject to conditions that are not inconsistent with Development Consent No. 0328/16DA issued by Coffs Harbour City Council on 24 November 2020 (Development Consent).

Orders

(2) An order that the Respondent issue an Environment Protection Licence to the Applicant in respect of the EPL Application, subject to conditions that are not inconsistent with the Development Consent, within one week of the Court making these orders.

Costs

(3) An order that the Respondent pay the Applicant’s costs of these proceedings.

General

(4) Such other or further orders as this Honourable Court sees fit.

Issues for determination

6. The parties agreed that the issues for determination are as follows:

1. Whether, by operation of s 4.50(1) of the EPA Act, the EPA is required to issue an environment protection licence the subject of the EPL application to Crush and Haul, subject to conditions that are not inconsistent with the development consent granted to the applicant on 24 November 2020.

2. What relief, if any, the Court should grant in the exercise of its discretion.

7. It was common ground that the issues for determination are not factually intensive, rather raise the construction of the statutory regime in the EPA Act concerning integrated development and the regime in Chapter 3 of the POEO Act in relation to environment protection licences. In particular, the parties agreed that interpretation is required of s 4.50(1) of the EPA Act, and whether its opening words, “[d]espite any other Act or law” override the provisions in Chapter 3 of the POEO Act governing decision-making in relation to applications for licences in relation to integrated development.

8. The background to the proceedings is the EPA’s intention to refuse Crush and Haul’s EPL application, on the basis that Crush and Haul is not a fit and proper person. Although this is not a question for me to determine in these Class 4 proceedings, what does arise for me to determine is whether the question of a fit and proper person in s 83 of the POEO Act, also a consideration in s 45(f) of the POEO Act, can be considered by the EPA after having issued general terms of approval as part of the integrated development regime in Division 4.8 of Part 4 of the EPA Act.

Outcome

9. I have determined that Crush and Haul’s summons be dismissed. I have found, contrary to Crush and Haul’s submission, that the EPA was not required, by operation of s 4.50(1) of the EPA Act, to issue an environment protection licence the subject of the EPL application to Crush and Haul, subject to conditions that are not inconsistent with the development consent granted to Rixa on 24 November 2020. In summary, that is because:

1. the development consent was not granted to Crush and Haul, but to Rixa, a different entity;

2. on a proper construction of s 4.50(1) of the EPA Act, the granting of development consent for integrated development by a consent authority does not compel the EPA to subsequently issue an environment protection licence to the entity that applied for development consent, or to any other entity (here, relevantly, Crush and Haul), subject to conditions not inconsistent with the development consent. Notwithstanding the statutory regime for integrated development in the EPA Act establishing a co-ordinated assessment and approval regime, there arise distinct exercises of power by the approval authority in relation to the decision about the general terms of approval in relation to the development application (cl 70 of the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation 2000)) (now s 45(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation 2021)), and the issue of an environment protection licence pursuant to s 45 of the POEO Act.

3. In any event, if I be wrong on the question of statutory construction, having regard to the power of the EPA in s 79 of the POEO Act to revoke an environment protection licence, without notice to the holder of the licence of the authority’s intention to revoke the licence, in the exercise of the Court’s discretion, I have found that the relief sought by the applicant would be inutile.

Background

10. The parties agreed on a statement of agreed facts which forms the basis of the background set out below.

The parties

11. Crush and Haul operates the quarry at Lot 550 in DP 1181369, also known as 3367 Solitary Islands Way, Dirty Creek NSW (the land).

12. At all material times, Crush and Haul was a duly incorporated corporation able to sue in its corporate name and style. From 8 October 2014 to the date of hearing, Mr Luke Cauchi was the director and secretary of Crush and Haul, with the exception of the period between 1 February 2022 to 31 January 2023, when Ms Louise Cauchi was the director and secretary of Crush and Haul.

13. The EPA is an approval body for the purposes of Part 4, Division 4.8 of the EPA Act in respect of an approval for an environment protection licence.

The development application submitted by Rixa on around 21 October 2015

14. On 12 December 2014, Ms Louise Cauchi, on behalf of Rixa, completed a development application form seeking development consent to carry out an extractive industry (quarry extension) on land identified as Lot 550 in DP 1181369 (formerly Lot 24 in DP 705683) and Lot 76 in DP 752820, described in the application as “expansion of extractive industry to 490,000 tonnes per annum”. On around 21 October 2015, Rixa submitted the development application, No 0328/16DA, to Council.

15. At the time of submitting the development application to Council, and continuing until the date of hearing, Ms Louise Cauchi and Mr Joseph Cauchi were the directors of Rixa. The development application identified Ms Cauchi as an office holder of Rixa, and was signed by her in that capacity. The development application did not identify Crush and Haul as the person proposed to carry out the development, or the person who would be the applicant for an environment protection licence in relation to the development. This became a significant issue, first ventilated by the respondent at the hearing, and not addressed in the respondent’s points of defence or written submissions. As will become clear, I have determined that this issue alone is fatal to Crush and Haul’s case.

16. The development application submitted by Rixa sought development consent to:

1. Increase the scale of the existing quarry to permit the extraction of a total of 2,200,000 tonnes, with a maximum annual extraction rate of 490,000 tonnes.

2. Enlarge the existing quarry footprint from approximately 3.5 hectares to 4.8 hectares.

3. Store, stockpile and process extractive materials.

4. Import material for blending and processing with the extractive materials.

17. It was not disputed that the development the subject of the development application concerned both designated development and integrated development under Part 4, Division 4.8 of the EPA Act. The development application also concerned regionally significant development. Therefore, pursuant to s 4.5(b) of the EPA Act, the consent authority was the regional planning panel for the area in which the development was to be carried out, in this case the Northern Regional Planning Panel.

18. On or around 6 January 2020, the development application was notified to the EPA as an integrated development application, seeking the EPA’s determination as to whether or not to grant general terms of approval.

19. On 24 January 2020, the EPA issued general terms of approval proposed to be granted by it in relation to the development the subject of the development application (the general terms of approval). By letter dated 24 January 2020, the EPA notified Council of its general terms of approval for the integrated development application. In its letter, the EPA said:

EPA has reviewed the information provided and has determined that it is able to issue a licence for the proposal, subject to a number of conditions. The applicant will need to make a separate application to EPA to obtain this licence. (emphasis added)

20. The general terms of approval issued by the EPA on 24 January 2020 included condition A2.1 as follows:

A2. Fit and Proper Person

A2.1 The applicant must, in the opinion of the EPA, be a fit and proper person to hold a licence under the Protection of the Environment Operations Act 1997, having regard to the matters in s. 83 of the Act.

21. On 24 November 2020, the Northern Regional Planning Panel determined to approve the development application pursuant to s 4.16 of the EPA Act, subject to conditions. On 26 November 2020, Council issued to Rixa a notice of determination of the development application pursuant to s 4.18 of the EPA Act. Attached to the notice of determination was a schedule of conditions. Under the headings “General Terms of Approval” and “Environment Protection Authority” was condition 60, “Fit and Proper Person”, which was in the same terms as condition A2.1 extracted at [20] above.

22. As at the date of hearing, the development consent had not been modified, withdrawn, revoked or lapsed.

The EPL application lodged by Crush and Haul on or around 20 September 2022

23. From around July 2019, in the context of investigating breaches of environmental legislation at the quarry, the EPA became aware that Crush and Haul was operating at the quarry throughout 2018. In August 2019, an employee of GHD, on behalf of Crush and Haul, informed an EPA officer that following the withdrawal of an application for an environment protection licence for the quarry by Mr Michael Robinson, the lessee of the quarry, Crush and Haul would shortly submit an application for an environment protection licence.

24. On or around 20 September 2022, Crush and Haul lodged the EPL application, being environment protection licence application No 21745, seeking an environment protection licence to carry out the scheduled activities of “extractive activities” and “crushing, grinding or separating” at the land (the scheduled activities). It was not disputed that the scheduled activities are controlled activities for which development consent had been granted. Likewise, it was not disputed that the EPL application was made within 3 years of the grant of development consent.

25. On 10 November 2022, the EPA issued a notice of intention to refuse the EPL application. As at the date of hearing, the EPA had not determined the EPL application, and had not done so within 60 days of the EPL application being lodged. By operation of s 287(3) of the POEO Act, the EPL application is taken to have been refused for the purpose of establishing a right to appeal to the Court in Class 1 proceedings.

26. On 21 November 2022, Crush and Haul commenced Class 1 proceedings, appealing the deemed refusal of the EPL application. The Class 1 appeal is listed for hearing on 13 to 15 June 2023.

27. On 19 April 2023, Crush and Haul commenced these Class 4 proceedings, seeking the relief specified at [5] above.

Evidence

28. The EPA read an affidavit of Ellen Chapple, solicitor employed by the EPA, affirmed on 10 May 2023. Crush and Haul objected to two paragraphs of that affidavit and to the underlying documents referred to therein. At the hearing, Crush and Haul withdrew the objection to paragraph [3], which referred to an annexed letter from the EPA to Crush and Haul dated 10 November 2022 notifying its intention to refuse the EPL application on the ground that the EPA did not consider Crush and Haul to be a fit and proper person. The objection was withdrawn to the extent that the letter’s use would be restricted to its use only as a communication, and not as proof of the contents, being underlying facts. I admitted the evidence on that basis.

29. Ms Chapple deposed that if Crush and Haul is successful in these proceedings and the EPA is required to issue to Crush and Haul an environment protection licence, the EPA would proceed to revoke that licence under s 79 of the POEO Act. This was also communicated to Crush and Haul by way of correspondence from the EPA dated 10 May 2023. I likewise admitted this evidence on the basis that it does not prove underlying facts relating to whether Crush and Haul is a fit and proper person.

30. Crush and Haul sought to tender an EPA document titled “Guide to licensing under the Protection of the Environment Operations Act 1997” (guide to licensing) to which the EPA objected on the basis that it does not assist the Court in construing the relevant statutory provisions. Crush and Haul sought to have the guide to licensing tendered as it was said to go to the fundamental question of construction, as well as discretion, as Crush and Haul alleged that the EPA was advancing “an entirely different proposition” to that which is stated in its own guide to licensing. I ruled that the guide to licensing be admitted into evidence in relation only to the question of discretion.

31. The parties otherwise relied on the statement of agreed facts.

Statutory purpose and context

32. The principal statutory provision upon which the applicant relies is s 4.50(1) in Div 4.8 “Integrated development” of Part 4 “Development assessment and consent” of the EPA Act. The proceedings also raise the integrated development regime in the EPA Act generally, and its interrelation with the regime for environment protection licences in Chapter 3 of the POEO Act.

33. It is instructive at the outset to set out some basic principles in relation to statutory purpose and context before setting out the relevant provisions in the EPA Act relating to integrated development, and those in the POEO Act in relation to environment protection licences.

34. In relation to statutory purpose, Herzfeld and Prince say (citations omitted): [2]

7.10 At common law, statutory provisions are, if possible, to be construed so as to give effect to their purpose. To varying degrees, that has long been the common law position...While it may once have been necessary at common law to identify ambiguity before having regard to purpose, consistent with the modern approach to interpretation generally, purpose – like other aspects of the context – is to be considered in the first instance, not merely if ambiguity is identified…

Like all matters of context, consideration of the purpose of provisions is not an end in itself: it is undertaken to assist in fixing the meaning of the statutory text. Thus, the purpose “is not something which exists outside the statute. It resides in its text and structure, albeit it may be identified by reference to common law and statutory rules of construction”. Subject to limited circumstances where courts are willing to make alterations to the statutory text to correct errors, a court can only construe a provision so as to give effect to its purpose so far as that construction is reasonably open on the natural and ordinary meaning of the words of the provision read in the context in which they appear.

2. Herzfeld and Prince, Interpretation (2nd ed, 2020, Thomson Reuters (Professional) Australia Limited) at [7.10].

35. In Project Blue Sky Inc v Australian Broadcasting Authority (Project Blue Sky), [3] the High Court (McHugh, Gummow, Kirby and Hayne JJ) said at [70] (citations omitted):

70. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of the provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions…

3. (1998) 194 CLR 355; (1998) 153 ALR 490; [1998] HCA 28 at [78].

36. And further at [78]:

78. …the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.

37. At the hearing, Mr Lazarus SC for Crush and Haul referred to the following passage in Pearce and Geddes at [2.60]: [4]

Another difficulty that is sometimes encountered when it is argued that the literal interpretation would produce unsatisfactory and unintended results is that this may be a matter on which opinions can differ.

…

In what circumstances should a court refuse to adopt an interpretation of a legislative provision that is otherwise acceptable on the basis that such an interpretation could also produce an anomalous result? In Ganter v Whalland [2001] NSWSC 1101; (2001) 54 NSWLR 122 Campbell J supplied an answer to this question. At [36] he referred to the language of Mason and Wilson JJ in the Cooper Brookes case…and the words of Jordan CJ in Hall v Jones…and suggested that:

From the strength of the language which these judges employed to describe the sort of consequences which will cause a possible construction to be rejected, it is apparent that an anomaly arising from what, on all other tests of construction, is the correct construction of legislation, it must be a very serious one, before the court is justified in using that anomaly as a reason for rejecting what otherwise seems the correct construction. Were courts to act otherwise, they would risk taking over the function of making policy choices which properly belongs to the legislature.

4. Pearce and Geddes, Statutory Interpretation in Australia (9th ed, 2019, LexisNexis Butterworths) at [2.60].

The statutory regime for integrated development in the EPA Act

38. The relevant provisions in the EPA Act relating to integrated development are as follows.

39. Section 4.46(1) of the EPA Act provides (relevantly):

4.46 What is “integrated development”? (cf previous s 91)

(1) Integrated development is development (not being State significant development or complying development) that, in order for it to be carried out, requires development consent and one or more of the following approvals—

…

Act	Provision	Approval
Protection of the Environment Operations Act 1997	ss 43(a), 47 and 55	Environment protection licence to authorise carrying out of scheduled development work at any premises.

40. Section 4.47 of the EPA Act provides:

4.47 Development that is integrated development (cf previous s 91A)

(1) This section applies to the determination of a development application for development that is integrated development.

(2) Before granting development consent to an application for consent to carry out the development, the consent authority must, in accordance with the regulations, obtain from each relevant approval body the general terms of any approval proposed to be granted by the approval body in relation to the development. Nothing in this section requires the consent authority to obtain the general terms of any such approval if the consent authority determines to refuse to grant development consent.

(3) A consent granted by the consent authority must be consistent with the general terms of any approval proposed to be granted by the approval body in relation to the development and of which the consent authority is informed. For the purposes of this Part, the consent authority is taken to have power under this Act to impose any condition that the approval body could impose as a condition of its approval.

(4) If the approval body informs the consent authority that it will not grant an approval that is required in order for the development to be lawfully carried out, the consent authority must refuse consent to the application.

…

(5) If the approval body and the Planning Secretary fail to inform the consent authority, in accordance with the regulations, whether or not it will grant the approval, or of the general terms of its approval—

(a) the consent authority may determine the development application, and

(b) if the consent authority determines the development application by granting consent—

(i) the approval body cannot refuse to grant approval to an application for approval in respect of the development, and

(ii) an approval granted by the approval body must not be inconsistent with the development consent, and

(iii) section 4.50 applies to an approval so granted as if it were an approval the general terms of which had been provided to the consent authority,

despite any other Act or law.

Note—

Under section 380A of the Mining Act 1992 and section 24A of the Petroleum (Onshore) Act 1991, a mining lease or production lease can be refused on the ground that the applicant is not a fit and proper person, despite this section.

…

41. Section 4.50 of the EPA Act provides:

4.50 Granting and modification of approval by approval body (cf previous s 93)

(1) Despite any other Act or law, an approval body must, in respect of integrated development for which development consent has been granted following the provision by the approval body of the general terms of the approval proposed to be granted by the approval body in relation to the development, grant approval to any application for approval that is made within 3 years after the date on which the development consent is granted if, within that 3-year period, the development consent has not lapsed or been revoked.

Note—

Under section 380A of the Mining Act 1992 and section 24A of the Petroleum (Onshore) Act 1991, a mining lease or production lease can be refused on the ground that the applicant is not a fit and proper person, despite this section.

(2) The approval may be granted subject to conditions that are not inconsistent with the development consent. Neither the provisions of section 4.17(6)–(10) nor the imposition of conditions as to security by the consent authority prevent an approval body from imposing conditions, or additional conditions, as to security.

(3) Subsection (1) does not apply to or limit the granting of approval to an application for renewal of an approval.

(4) An approval body cannot vary the terms of an approval granted for integrated development for which development consent has been granted before the expiration, lapsing or first renewal of the approval, whichever first occurs, other than to make variations that are not inconsistent with the development consent.

(5) Subsection (4) does not prevent—

(a) the modification, in accordance with section 4.55 or 4.57, of the development consent at any time, or

(b) if a development consent is modified as referred to in paragraph (a) before the expiration, lapsing or first renewal, whichever first occurs, of the approval, the modification in accordance with law of the approval to any necessary consequential extent, or

(c) the exercise by the approval body of any of its other functions, such as the issuing of orders, the suspension or cancellation of an approval or the prosecution of offences.

42. The statutory regime for integrated development was established pursuant to the Environmental Planning and Assessment Amendment Act 1997 No 152 (the Amending Act), which commenced on 1 July 1998. The Amending Act established a co-ordinated approach between the EPA Act and other specified enactments which also required statutory approvals in order to carry out development. In particular, Schedule 1, item [32] of the Amending Act inserted for the first time into the EPA Act provisions dealing with “integrated development” (originally numbered as Part 4, Division 5, ss 90 to 93B).

43. The Amending Act also amended enactments under which other statutory approvals were required in order to establish a coherent statutory regime. For example, at the time that the integrated development provisions were introduced, the licensing regime for pollution was the Pollution Control Act 1970, and Schedule 4, cl 4.28 of the Amending Act also amended the Pollution Control Act 1970 to specify that “[t]he issue of a licence in relation to integrated development within the meaning of section 91 of the Environmental Planning and Assessment Act 1979 is subject to Division 6 [sic] of Part 4 of that Act.” The current licensing regime involves the issue by the EPA of an environment protection licence in the exercise of its powers under Chapter 3 of the POEO Act, as set out below at [52]-[56].

44. In the Second Reading Speech in relation to the Amending Act on 15 October 1997, Minister Knowles said:

The most often stated problems with the system are that it is over-regulated; it is full of duplication; separate approval processes sometimes conflict with one another; there is a lack of certainty; there is a lack of transparency; no-one is accountable; there is little co-ordination; the process and scale of assessment is often out of proportion to the environmental impact; and it all takes too long.

45. And further that (emphasis added):

…when certain State agencies have an involvement or interest in further assessing aspects of a development proposal, through the granting of licences, permits and approvals, procedures are introduced in division 5 to part 4 of the bill to co-ordinate or integrate the issuing of these other approvals with the assessment of a development application. Broadly, this means involving State agencies earlier in the development assessment process and combining the desired environmental outcome conditions of all relevant agencies under an integrated development consent. Other Ministers and State agencies will retain the responsibility for issuing these approvals under their respective legislation. While there will still be a need for the applicant to obtain the other relevant approvals, greater certainty for the applicant and the community will be provided as multiple assessment processes will be collapsed into the one overall framework.

…

In addition, certainty is provided because councils are bound by those general terms of approval in issuing a development consent. An approval body is similarly bound in issuing its subsequent approval consistent with the integrated development consent unless an application required under the other legislation is not made within three years of the consent being granted.

(emphasis added)

46. Division 4.8 of Part 4 (ss 4.44 to 4.52) of the EPA Act, inserted in the EPA Act by the Amending Act, had its genesis in Division 5 of Part 4 (ss 90 to 93B). On 1 July 1999, the former s 91 of the EPA Act (now s 4.46) was amended by cl 4.3 of Schedule 4 to the POEO Act so that it made reference to those provisions in the POEO Act that are currently listed in the table to s 4.46(1). Division 4.8 applies to “integrated development'” (s 4.44(1)), which is “development ... that, in order for it to be carried out, requires development consent” and, relevantly, an environment protection licence under the POEO Act to authorise carrying out of scheduled activities at any premises: s 4.46(1).

47. Section 4.47 applies to the determination of a development application for development that is integrated development: s 4.47(1). Section 4.47(2) imposes an obligation on a consent authority, before granting development consent in relation to an application for integrated development, to “obtain from each relevant approval body the general terms of any approval proposed to be granted by the approval body in relation to the development”. Clause 70 of the EPA Regulation 2000, now s 45(1) of the EPA Regulation 2021, requires an approval body that receives a development application from a consent authority to give “written notice to the consent authority of its decision about the general terms of approval in relation to the development application, including whether it will grant an approval” within certain timeframes. Section 4.47(3) of the EPA Act provides that a consent granted by the consent authority “must be consistent with the general terms of any approval proposed to be granted by the approval body in relation to the development and of which the consent authority is informed”.

48. Crush and Haul submitted that the purpose of this co-ordinated statutory regime is evident having regard to the express terms of Division 4.8 of Part 4. The overarching purpose of the statutory regime, it was submitted, is to ensure consistency between the EPA Act and different statutory regimes, to ensure that there is a proper process of assessment by an approval authority when a development application for integrated development is referred to it, and to thereby provide certainty as to the ultimate outcome as to whether a development can be carried out (either because it is made clear at that stage that an approval will not be given (s 4.47(4)), or that it must be given (s 4.47(5), s 4.50)).

49. Crush and Haul also submitted that the purpose of establishing a co-ordinated assessment and approval regime is consistent with the objects of the EPA Act “to promote the orderly and economic use and development of land”. [5] It was submitted that ensuring consistency between statutory regimes, and ensuring that development is not prevented from being carried out by a later inconsistent administrative decision, promotes the orderly development of land. This purpose, and the meaning of s 4.50 of the EPA Act, was submitted to be otherwise confirmed when regard is had to:

1. extrinsic material including the Second Reading Speech for the Bill which ultimately became the Amending Act (see above at [44]-[45]); and

2. subsequent amendments, including the insertion of the note underneath the text of s 4.50(1) providing for the refusal of an application for a mining lease or a production lease on the ground that the applicant is not a fit and proper person (see above at [41]). Although the note does not form part of the EPA Act, it is “explanatory” and can be used for the purposes of construction as extrinsic material. [6]

   5. EPA Act s 1.3(c) (formerly s 5(a)(ii) “the promotion and co-ordination of the orderly and economic use and development of land”).

   6. EPA Act s 1.4(13); see also Interpretation Act 1987 (NSW) ss 34(1), 34(2)(a), 34(2)(f).

50. Crush and Haul further submitted that a fundamental component of the integrated development provisions in the EPA Act is the existence of a right of veto by an approval body, such that if the approval body determines that it is inappropriate to grant an approval, then development consent can not lawfully be granted. [7] Conversely, Crush and Haul submitted, if an approval body failed to confirm whether or not it will grant approval, or if general terms of approval were in fact provided, the statutory consequences are “clear”, referring to ss 4.47(5) and 4.50(1). Those provisions and the alternative consequences for which the statute provides, it was submitted, are designed to ensure that a proper assessment is carried out by an approval body (in this case, the EPA) in accordance with the integrated development provisions of Division 4.8 of Part 4, and also the specific statutory regime requiring separate approval.

    7. EPA Act s 4.47(4) (formerly s 91A(4)).

51. Crush and Haul summarised the intention of the integrated development scheme as providing a “one-stop shop” where everything that is necessary to be assessed should be done at the general terms of approval stage. Crush and Haul further submitted that the provisions are designed to promote certainty by ensuring that the carrying out of development which has the benefit of development consent is not later frustrated by the denial of one or more of the requisite approvals listed in s 4.46(1). Crush and Haul submitted that the mechanism by which that certainty is achieved (where either general terms of approval are given or no response is received) is s 4.50 of the EPA Act.

Interrelation of the regime for integrated development in the EPA Act with the regime for environment protection licences in Chapter 3 of the POEO Act

52. On 1 July 1999, the POEO Act commenced, repealing the Pollution Control Act 1970 and amending certain provisions of the EPA Act, including omitting references to the Pollution Control Act 1970 under s 91 (now renumbered s 4.46) and substituting the POEO Act. According to its Long Title, the POEO Act is an Act “to protect the environment; to replace other environment protection legislation; and for other purposes”.

53. The objects of the POEO Act are, relevantly:

3   Objects of Act

The objects of this Act are as follows—

(a)  to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development,

…

(d)  to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following—

(i)  pollution prevention and cleaner production,

(ii)  the reduction to harmless levels of the discharge of substances likely to cause harm to the environment,

(iia)  the elimination of harmful wastes,

(iii)  the reduction in the use of materials and the re-use, recovery or recycling of materials,

(iv)  the making of progressive environmental improvements, including the reduction of pollution at source,

(v)  the monitoring and reporting of environmental quality on a regular basis,

(e)  to rationalise, simplify and strengthen the regulatory framework for environment protection,

…

54. Section 7 of the POEO Act provides (relevantly):

7   General relationship with other Acts

(1) Other Acts not affected Nothing in this Act affects any of the provisions of any other Act or any statutory rules, or takes away any powers vested in any person or body by any other Act or statutory rules.

(2) This Act generally prevails However (subject to subsection (3))—

(a)  this Act prevails over any other Act or statutory rule to the extent of any inconsistency, and

(b)  a regulation made under this Act prevails over any other statutory rule to the extent of any inconsistency…

55. In its submissions, the EPA referred to s 7(2) of the POEO Act, which commenced after the Amending Act, as the “inconsistency clause”.

56. Chapter 3 of the POEO Act contains provisions in relation to the way in which environment protection licences may be issued and dealt with: s 42. Such licences may be issued to authorise the carrying out of scheduled activities at any premises, as required under s 48: s 43(b). Scheduled activities cannot be carried out lawfully without a licence: s 48(2). Part 3.3 of Chapter 3 (ss 53 to 62) deals with the issue, transfer and variation of licences. Parts 3.4, 3.5, 3.6 and 3.7 of Chapter 3 deal with licence conditions, particular licence conditions, the duration and review of licences, and the suspension, revocation and surrender of licences, respectively.

57. In exercising its licensing functions under Chapter 3, the relevant regulatory authority – here, the EPA – is “required” under s 45 to take into consideration various matters, including, at s 45(f), “whether the person concerned is a fit and proper person” (emphasis added). Section 79(5) provides that the reasons for the regulatory authority suspending or revoking a licence may include “(f) in the opinion of the appropriate regulatory authority, the holder of the licence is no longer a fit and proper person.” Section 83 has effect in determining whether a person is a fit and proper person as referred to in ss 45(f) and 79(5)(f). [8] Section 83(2) provides matters in paragraphs (a) to (o) that the regulatory authority may take into consideration in determining whether the person concerned is a fit and proper person.

    8. POEO Act s 83(1).

55. Crush and Haul submitted that despite the POEO Act commencing one year after the Amending Act, both received royal assent on 19 December 1997 and, accordingly, should be considered as not intending to contradict each other. Crush and Haul submitted that there was only one harmonious and reasonable construction of the two Acts; namely one which recognises that Parliament deliberately chose to modify the licencing regime that would otherwise apply under the POEO Act.

56. The EPA submitted that the forerunner to s 4.50(1) commenced on 1 July 1998, while the POEO Act commenced a year later. Therefore, in accordance with established methods of resolving inconsistency or contrariety, [9] the provisions of the POEO Act should be characterised as leading, and s 4.50(1) of the EPA Act as subordinate, having regard to the dates when each of the statutes was enacted.

    9. Ross v The Queen (1979) 141 CLR 432 (Gibbs J) at 440.

57. In relation to the POEO Act, Crush and Haul also referred to the object in s 3(e) “to rationalise, simplify and strengthen the regulatory framework for environment protection”, and submitted that the object of rationalising the regulatory framework for environmental protection includes avoiding the spectre of conflicting administrative decisions. Other provisions said to demonstrate a clear interrelationship between an environment protection licence under the POEO Act, development application and development consent under the EPA Act, and a clear statutory intention to avoid conflicting decisions under the two statutes, include ss 50 to 51, and s 58. This was said to be supported by the statement of Basten JA in Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council that “the evident purpose of s 50, and indeed s 58(6) [of the POEO Act], is to ensure that the Planning Act [EPA act] and the 1997 Act [POEO Act] operate in tandem and do not result in conflicting permissions.” [10]

    10. (2019) 101 NSWLR 1; [2019] NSWCA 147 (Basten JA) at [177].

Section 4.50(1) of the EPA Act

61. The central issue for determination is whether s 4.50(1) of the EPA Act should be construed so as to compel the EPA to issue to Crush and Haul an environment protection licence pursuant to the EPL application made by it.

62. In relation to the interpretation of s 4.50(1) Crush and Haul submitted as follows:

1. the EPA, as the relevant “approval body”, is bound to comply with the terms of s 4.50(1), (relying on s 10.1 of the EPA Act and s 5 of the POEO Act);

2. absent a contrary legislative intention, s 4.50(1) is intended to have an overriding effect in respect of the legislation identified in s 4.46(1), including the POEO Act. That is evident in the commencing words that the provision is to apply “[d]espite any other Act or law”, which expression includes any other Act or law, irrespective of whether it pre-dates or post-dates that provision (relying on Kelly v Commissioner of Department of Corrective Services at [45]); [11]

3. the use in s 4.50(1) of the word “must”, in accordance with its ordinary and natural meaning, creates a mandatory obligation;

4. the content of the obligation is to grant an approval; and

5. the obligation is referable to “any application for approval”, that is, it is not limited to an application by the same person or entity that applied for and obtained the development consent.

6. (emphasis added)

   11. (2001) 52 NSWLR 533.

63. Crush and Haul submitted that the language of s 4.50(1) is clear and unambiguous, and can and should be given effect in accordance with its terms. Applied to the circumstances of an approval under the POEO Act, s 4.50 has the effect, it was submitted, that the EPA must issue an environment protection licence to any application for a licence for which the EPA has provided general terms of approval.

64. Crush and Haul contended that the statutory mandate to “grant approval to any application for approval” is clear, and that those words are not qualified by reference to a subsequent state of satisfaction or process of assessment. In particular, Crush and Haul submitted that there are no express words in s 4.50(1) from which such a qualification might be implied, and accordingly there is nothing to suggest that the statutory scheme requires (or permits) an approval body to re-assess (or assess if it has failed to property perform the assessment function required under s 4.47 of the EPA Act) an application at a later point in time, being the time that the application for approval is actually made, and to determine at that later point whether the approval should in fact be granted (provided the application is made within the specified three-year period).

65. In support of its construction of s 4.50(1), Crush and Haul relied on the decision of Taylor v The Owners – Strata Plan No 11564,[12] where French CJ, Crennan and Bell JJ at [38] said as follows:

38. The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills “gaps disclosed in legislation” or makes an insertion which is “too big, or too much at variance with the language in fact used by the legislature”.

12. (2014) 253 CLR 531 at [38].

66. And in the same case, Gageler and Keane JJ said at [65]:

65. Statutory construction involves attribution of legal meaning to statutory text, read in context. “Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning ... But not always.” [112] Context sometimes favours an ungrammatical legal meaning. Ungrammatical legal meaning sometimes involves reading statutory text as containing implicit words. Implicit words are sometimes words of limitation. They are sometimes words of extension. But they are always words of explanation [113]. The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair.

67. Crush and Haul submitted that the Court should construe the words in 4.50(1) “[d]espite any other Act or law” as including anything that preceded or post-dated the provision. It submitted, as recorded above at [58], that even though the POEO Act commenced operation a year after the Amendment Act, the two statues were enacted on the same day, and intended to form part of a package of coherent and co-ordinated legislative reforms.

68. The EPA submitted that Crush and Haul’s construction of s 4.50(1) of the EPA Act should be rejected as it is one which collides with the POEO Act, and is in conflict with the inconsistency provision in s 7(2)(a) of the POEO Act, set out above at [54].

69. At the hearing, the EPA submitted that it could not be bound by s 4.50(1) of the EPA Act to issue an environment protection licence in circumstances where the entity that applied for the environment protection licence is different from the entity that obtained the development consent, and general terms of approval. In reply, Crush and Haul placed emphasis on the words “any application” in s 4.50(1), submitting that it was ultimately a policy decision made by Parliament that so long as “any” application is made within three years, that is a sufficient protection against some change of circumstance.

The note underneath s 4.50(1) of the EPA Act

70. Both parties accepted that the note underneath s 4.50(1) constituted extrinsic material in accordance with s 1.4(13) of the EPA Act:

1.4   Definitions

…

(13)  Notes in this Act are explanatory notes and do not form part of this Act.

71. Crush and Haul submitted that its construction of s 4.50(1) of the EPA Act was confirmed having regard to the note underneath s 4.50(1), as well as the specific terms of cognate legislation, such as the Mining Act 1992 (NSW) (being a nominated Act in s 4.46(1) of the EPA Act). The Mining and Petroleum Legislation Amendment 2014 Act No 10 (NSW) which commenced on 14 May 2014 was said to be particularly instructive. That amending Act not only amended the terms of the Mining Act1992 (NSW) and the Petroleum (Onshore) Act 1991 (NSW) to provide an express statutory exemption from the purpose and construction advanced by Crush and Haul in respect of s 4.50 of the EPA Act, but also inserted a note under the former ss 91A or 93 (now ss 4.50(1) and 4.47(5)) of the EPA Act to direct a reader to the legislative differences. The Mining and Petroleum Legislation Amendment Act 2014 (NSW) inserted s 380A which makes provision for a specific exemption from s 4.50. The provision as originally made and which continued in force (as amended) until 28 February 2023 provided that:

(4) The grant, renewal or transfer of a mining lease can be refused on the ground that the Minister is of the opinion that the applicant is not a fit and proper person even if –

(a) the mining lease is necessary for the carrying out of State significant development that is authorised by a development consent, despite section 89K of the Environmental Planning and Assessment Act 1979 (the Planning Act), or

…

(d) section 91A or 93 of the Planning Act would otherwise prevent that refusal.

(emphasis added)

72. Crush and Haul submitted that the construction for which it contended was reinforced by the circumstance that Parliament had identified an express statutory exemption from s 4.50 as necessary in the case of the Mining Act 1992. It was submitted, again, that this construction was confirmed when consideration is given to the explanatory note to the Mining and Petroleum Legislation Amendment Bill 2014 (the Explanatory Note). This, it was submitted, makes clear that Parliament well understood that where development consent is granted for integrated development, an approval of those matters listed in s 4.46(1) could not be refused; more specifically, an application for approval could not be subject to further assessment and refused on the basis that an applicant is not “a fit and proper person”. So much was said to be evident from the stated object of the Mining and Petroleum Legislation Amendment Bill to avoid that very outcome where the approval was for a mining lease or petroleum title.

73. Crush and Haul placed emphasis on the Explanatory Note which provides that the Bill:

inserts (as section 380A(4)) a provision that overrides various provisions of the Planning Act so as to allow the grant, renewal or transfer of a mining lease to be refused on the ground that the Minister is of the opinion that the applicant is not a fit and proper person, even if the mining lease is necessary for the carrying out of State significant development, State significant infrastructure or a transitional Part 3A project or has been approved as integrated development.

74. On 1 March 2023, s 380A of the Mining Act 1992 was repealed, but substituted with an equivalent provision in s 396(1) which provides that:

396 Miscellaneous

(1) The grant, renewal or transfer of a mining lease may be rejected under this Division even if –

…

(d) the Planning Act, section 4.47 or 4.50 would otherwise prevent that rejection.

(5) In this section –

“Planning Act” means the Environment Planning and Assessment Act 1979.

75. Equivalent amendments were made by the Mining and Petroleum Legislation Amendment Act 2022 to the Petroleum (Onshore) Act 1991: Sch 2, item [15] omitting s 24A, but item [86] inserting s 146. In contrast to s 380A (repealed) and s 396(1) of the Mining Act 1992, and the equivalent provisions in the Petroleum (Onshore) Act 1991, no such exclusionary provision is provided for in the POEO Act.

76. The EPA submitted that the reason the POEO Act is not included in the note to s 4.50(1) is because it did not need to be by reason of the inconsistency provision in s 7(2)(a) of the POEO Act.

Conflicting inconsistency provisions in the EPA Act and the POEO Act

77. The EPA submitted that the inconsistency provision in s 7(2)(a) of the POEO Act is fatal to Crush and Haul’s application. It submitted that the express words in s 7(2)(a) – “this Act prevails over any other Act or statutory rule to the extent of any inconsistency” – puts beyond doubt that the provisions in the EPA Act are to be read subject to those in the POEO Act, where there is inconsistency. The EPA said that if s 4.50(1) of the EPA Act is construed as compelling the EPA to grant to Crush and Haul an environment protection licence, s 7(2)(a) prevails, as the following inconsistencies would arise:

1. firstly, Crush and Haul’s construction of s 4.50(1) of the EPA Act is inconsistent with s 55(1)(a)(i) of the POEO Act, which confers on the regulatory authority a discretion to grant an application for a licence;

2. secondly, it would render nugatory the requirement under s 45 of the POEO Act to consider a number of matters, including whether the person concerned is a fit and proper person;

3. thirdly, it would render nugatory the provision in s 51(2) of the POEO Act which subjects a “decision by the appropriate regulatory authority on whether it will issue a licence…in relation to integrated development” to Chapter 3 of the POEO Act; and

4. fourthly, Crush and Haul’s construction of s 4.50(1) gives the power of revocation of a licence in s 79(5)(f) on the fit and proper person ground no work to do.

78. At the hearing, Mr Lazarus SC for Crush and Haul submitted that there are two specific provisions in Chapter 3 of the POEO Act in relation to which “there can be no doubt in the world subordinate the provisions of Ch 3 to the integrated development provisions of the EPA Act”.

79. Firstly, Mr Lazarus relied on s 46 of the POEO Act which provides that “[t]his Chapter has effect in addition to and does not derogate from the requirements of any other Act, except as expressly provided in this or any other Act.” Section 46, it was submitted, is a carveout from the inconsistency provision in s 7(2), and expressly provides that Chapter 3 of the POEO Act is subordinate to the integrated development provisions in the EPA Act. Mr Lazarus submitted that: “Chapter 3 is entirely separate and treated separately from the balance of the Act for the purpose of its interaction with and potential conflict with any other Act.”

80. Secondly, Mr Lazarus relied on s 51 of the POEO Act which provides in relation to integrated development as follows:

51 Integrated development

(1) The issue of a licence in relation to integrated development within the meaning of section 4.46 of the Environmental Planning and Assessment Act 1979 is subject to Division 4.8 of that Act.

(2) A decision by the appropriate regulatory authority on whether it will issue a licence, or on the general terms of a licence it proposes to issue, in relation to integrated development is subject to the provisions of this Chapter (including section 45).

(3) A person to whom such a licence is issued after the commencement of this section cannot question the validity of the licence on the ground of failure to comply with any relevant provisions of that Act in any legal proceedings except those commenced in the Land and Environment Court by the person before the end of the period within which an appeal under section 287 can be lodged against the decision to issue the licence.

81. Crush and Haul submitted that the primacy of the integrated development provisions of the EPA Act in the statutory hierarchy is confirmed by s 51(1) of the POEO Act which makes clear that the issue of a licence under the POEO Act in relation to integrated development is subject to Div 4.8 of the EPA Act. Crush and Haul submitted that its interpretation of the EPA Act was also supported by the terms of s 51(2) POEO Act. A decision as to whether general terms of approval will be issued is subject to the provisions which in the ordinary course govern the grant of an environment protection licence, including s 45 in particular. The express reference in s 51(2) of the POEO Act to s 45 was said to be important because s 45(f) is the provision which engages the “fit and proper person” test.

Section 79 of the POEO Act

82. The EPA was at all relevant times empowered under s 79 of the POEO Act to revoke an environment protection licence, including where the EPA is of the opinion that the holder of the licence is no longer a fit and proper person. Section 79 provides:

79 Suspension or revocation of licence by appropriate regulatory authority

(1) The appropriate regulatory authority may suspend or revoke a licence during its currency.

…

(4) The appropriate regulatory authority is not required to give the holder of a licence notice of the authority’s intention to suspend or revoke the licence (whether with or without conditions imposed under section 81) before giving a notice under subsection (2).

(5) The reasons for suspending or revoking a licence may include (but are not limited to) the following—

…

(f) in the opinion of the appropriate regulatory authority, the holder of the licence is no longer a fit and proper person.

Note—

See section 83 for provisions relating to the determination of whether a person is a fit and proper person for the purposes of this section.

83. On Crush and Haul’s construction of s 4.50(1), to which senior counsel referred as a “one-stop shop”, the EPA was bound to issue an environment protection licence where general terms of approval had been granted pursuant to an integrated development application, notwithstanding that under s 79 of the POEO Act, the EPA also had the power immediately to revoke that environment protection licence, without giving the holder of the licence notice of its intention to revoke.

Fit and proper person test: ss 45(f) and 83 of the POEO Act

84. In relation to fit and proper persons, section 83 of the POEO Act provides:

83   Fit and proper persons

(1) This section has effect in determining whether a person is a fit and proper person as referred to in section 45(f) and section 79(5)(f), but does not limit the generality of those sections.

(2)  The appropriate regulatory authority may take into consideration any or all of the following—

…

(b)  that, if the person is a corporation, a current or former director of the corporation or of a related body corporate—

(i)  has contravened any of the environment protection legislation or other relevant legislation, or has held a licence or other authority that has been suspended or revoked under any of the environment protection legislation or other relevant legislation, or

(ii)  is or has been the director of another body corporate that has contravened any of the environment protection legislation or other relevant legislation, or has held a licence or other authority that has been suspended or revoked under any of the environment protection legislation or other relevant legislation,

…

(d)  if the person is a corporation, the record of compliance with the environment protection legislation of any current or former director of the corporation or of a related body corporate,

(e)  whether, in the opinion of the appropriate regulatory authority, the management of the activities or works that are or are to be authorised, required or regulated under the relevant licence are not or will not be in the hands of a technically competent person,

…

(g)  if the person is a corporation, whether, in the opinion of the appropriate regulatory authority, a current or former director of the corporation or of a related body corporate is of good repute, having regard to character, honesty and integrity,

…

(i) if the person is a corporation, whether a current or former director of the corporation or of a related body corporate has, in the previous 10 years, been convicted in New South Wales or elsewhere of an offence involving fraud or dishonesty,

…

(n1)  if the person is a corporation, whether a related body corporate is a person whom the appropriate regulatory authority does not consider to be a fit and proper person under this section.

(3)  A reference in subsection (2) to a director of a body corporate extends to a person involved in the management of the affairs of the body corporate…

85. Crush and Haul submitted that as part of the “one-stop shop” regime, in considering the development application, and whether it would provide general terms of approval of an environment protection licence proposed to be granted, the EPA was required to consider provisions governing the actual grant of an environment protection licence, including whether the person was a fit and proper person.

86. Crush and Haul submitted that the EPA, having provided general terms of an environment protection licence proposed to be granted, the licence must now be issued. It was submitted to be contrary to the legislative regime and the clear terms of s 4.50(1) of the EPA Act for the EPA to refuse to issue a licence in accordance with the general terms of approval on the basis that the EPA failed to undertake its task of assessing whether an applicant (including any related body corporate or company with a common director) was a fit and proper person, or it having now re-undertaken that task and reached a different conclusion. It was open to the EPA to notify the consent authority, in accordance with s 4.47(4) of the EPA Act, that it would not grant the environment protection licence. However, the EPA had determined not to take that course, but rather to provide the general terms of an environmental protection licence proposed to be granted. Accordingly, it was subject to the statutory consequences provided for in s 4.50(1) of the EPA Act.

87. The EPA submitted that Crush and Haul’s construction of s 4.50(1) would produce results that Parliament could not be taken to have intended. If at the time general terms of approval were issued in relation to a development application, the EPA was not in possession of evidence to suggest that the applicant for the licence was not a fit and proper person, and after the general terms of approval were issued, the applicant made an application for a licence under the POEO Act, having undergone a change in directorship such that a person convicted of offences against the POEO Act and offences involving fraud or dishonesty became its sole director, despite the terms of s 83(2) (particularly ss 83(2)(g) and (i)), on Crush and Haul’s construction of s 4.50(1), the EPA would be prevented from having regard to events that occurred since the general terms of approval were issued that bear directly on the question of whether the applicant is a fit and proper person to hold a licence. On the facts of this case, such a construction would mean that the EPA could not have regard to Crush and Haul’s conviction in this Court on 8 September, 2022, after the issue of general terms of approval on 24 January 2020. [13]

    13. Environment Protection Authority v Crush and Haul Pty Ltd [2022] NSWLEC 113 (Preston CJ).

88. At the hearing, the EPA relied on the decision of Preston CJ in relation to Crush and Haul’s 2022 conviction of an offence against s 48(2) of the POEO Act. The chief judge found Crush and Haul to have committed the offence “recklessly” (at [81]). The EPA submitted that on Crush and Haul’s construction of s 4.50(1), the EPA would be obliged to grant an environment protection licence to a different entity to the one that applied for development consent, notwithstanding that that entity had been found to be a “reckless offender”.

89. Crush and Haul submitted that the facts from which the 2022 conviction arose were known to the EPA at the time of the development application, and while there may have been a change of directorships of Rixa, and Crush and Haul, at various points in time, both entities were related bodies corporate within the meaning of the Corporations Act 2001 (Cth). At the hearing, Mr Lazarus also submitted that the matters which the EPA ought to have known at the time of issuing the general terms of approval are questions of fact and cannot resolve the issue of construction before the Court.

Consideration

90. Having considered the parties’ submissions, I find that the fundamental defect in Crush and Haul’s construction of s 4.50(1) of the EPA Act is that it fails to engage with s 7(2)(a) of the POEO Act which commenced after the Amending Act, and which provides that the POEO Act prevails over any other Act, which includes the EPA Act, to the extent of any inconsistency. [14] It is true that the Amending Act and the POEO Act received royal assent on the same day, 19 December 1997, and it is accepted that the two acts introduced together and assented to on the same day should be “read together”. [15] However, an act does not commence on the day it receives royal assent; an act “speaks” from the day it commences. [16] Accordingly, I find that the provisions of the EPA Act are to be read subject to those in the POEO Act where there is inconsistency.

    14. Ross v The Queen (1979) 141 CLR 432 at 440 (Gibbs J; Barwick CJ, Stephen, Mason and Aickin JJ agreeing); Mitty’s Authorised Newsagency v Registrar of Trade Marks (1983) 78 FLR 217 at 229 (Beaumont J); Textel Pty Ltd v Commonwealth Bank of Australia [1994] 2 VR 298 at 299–300 (Hayne J).

    15. Trade Practices Commission v Collings Construction Co Pty Ltd (1994) 53 FCR 137 at 147 (Wilcox J); Pearce and Geddes at [3.45].

    16. Herzfeld and Prince [12.10] citing Richards v McBride (1882) 8 QBD 119 at 124 (Lopes J); R v Secretary of State for the Home Department; Ex parte Fire Brigades Union [1995] 2 AC 513 at 530 (Hobhouse LJ); M v Scottish Ministers [2012] 1 WLR 3386 at [26] (Lord Reed JSC; Lord Hope DPSC, Baroness Hale, Lords Wilson and Carnwath JJSC agreeing).

91. I find that Crush and Haul’s “one-stop shop” construction of s 4.50(1) of the EPA Act gives s 79(5)(f) of the POEO Act no work to do. The words in s 79(5)(f) “is no longer a fit and proper person” (emphasis added) presuppose that the appropriate regulatory authority had formed the opinion, prior to issuing a licence, that the applicant for the licence was a fit and proper person. Section 79(5)(f) plainly contemplates a change in circumstances between the provision by the approval body of general terms of approval proposed to be granted, and the circumstances pertaining at the time of the grant of approval.

92. Crush and Haul’s construction of s 4.50(1) of the EPA Act is such as to render nugatory the obligation imposed by s 45(f) of the POEO Act on the appropriate regulatory authority in exercising its functions under Chapter 3 of that Act to take into consideration whether an applicant for a licence is a fit and proper person. Those functions include deciding whether the applicant should be granted a licence under s 55 of that Act. That process may involve the exercise of the discretion in s 60(1) to obtain further information from the applicant (which may be necessary in cases where, for example, the material provided by the applicant pursuant to s 53(2)(6) is inadequate). On Crush and Haul’s construction of s 4.50(1) of the EPA Act, there would be no scope for the EPA to comply with its obligations under s 45 of the POEO Act or to satisfy itself that it has sufficient information properly to exercise its decision-making power in s 55 of that Act.

93. It is not for the Court to determine in these Class 4 proceedings whether the EPA ought to have known about matters relating to whether Crush and Haul, as a related body corporate of Rixa, was a fit and proper person at the time it issued the general terms of approval.

94. However, construing s 4.50(1) in the manner for which Crush and Haul contends would produce the result that the EPA would be bound to issue an environment protection licence to an environmental offender who was not the applicant for development consent. That is a result that cannot have been intended by Parliament. It is also a result that pays no, or insufficient, regard to the inconsistency provision in s 7(2)(a) of the POEO Act. I do not accept Crush and Haul’s submission that s 46 of the POEO Act is a carveout from s 7(2)(a). That is because s 7(2)(a), a provision which commenced after s 4.50(1) of the EPA Act, expressly, and generally, provides for the paramountcy of s 7(2)(a) to the extent of any inconsistency.

95. Crush and Haul’s construction of s 4.50(1) of the EPA Act is inconsistent with s 55(1)(a)(i) of the POEO Act which confers a discretion, and does not impose an obligation on the appropriate regulatory authority to grant an application for a licence. The provision of general terms of approval “proposed” to be granted by the EPA by way of s 4.47 of the EPA Act and s 45 of the EPA Regulation 2021 is a distinct exercise of power than that conferred by s 55(1)(a)(i) of the POEO Act in relation to the issue of an environment protection licence. So much is plain from the terms of s 51(2) which refer to decisions by the appropriate regulatory authority “on whether it will issue a licence” and “on the general terms of a licence it proposes to issue” (emphasis added). These are separate and distinct exercises of power, and not a “one-stop shop”, contrary to Crush and Haul’s submission.

96. The EPA submitted that even if Crush and Haul’s construction of s 4.50(1) of the EPA Act is not defeated by s 7(2)(a) of the POEO Act, the inconsistencies with the POEO Act that would arise from Crush and Haul’s construction of s 4.50(1) can be resolved by applying ordinary principles of statutory interpretation.

97. Referring to Project Blue Sky, the EPA submitted that where there is an apparent inconsistency between provisions within an Act, “the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions”. [17] That same principle has been applied to instances where there is inconsistency between different Acts, particularly where, as here, they have been enacted by the same legislature. [18]

    17. (1998) 194 CLR 355; [1998] HCA 28 at [70] (Brennan CJ).

    18. Commissioner of Police (NSW) v Eaton (2013) 252 CLR 1; [2013] HCA 2 at [98] (Heydon J).

98. The starting point, the EPA submitted, is that the legislature intended that s 4.50(1) of the EPA Act and ss 45(f), 46, 51(2), 55(1), 60(1), 79(5)(f) and 83 of the POEO Act operate harmoniously, and that it was aware of the opening words of s 4.50(1) when the POEO Act was enacted. Reading the provisions in that way may be achieved by construing the opening words of s 4.50(1) as not including the POEO Act - or so much of the POEO Act as would permit the EPA to exercise its discretion in s 55(1) to refuse an application on the basis that the applicant is not a fit and proper person. Contrary to Crush and Haul’s submission, that is not to re-write the EPA Act, but to avoid the absurd consequences that would follow if Crush and Haul’s suggested construction of s 4.50(1) were embraced.

99. I find that the EPA’s submitted approach to resolving inconsistency is consonant with the principle that general provisions dealing with a particular subject (such as s 4.50(1) and, more broadly, Division 4.8 of Part 4 of the EPA Act relating to “Integrated development”) are to be read subject to specific provisions that deal with the same subject that have been enacted at a later time (here, provisions dealing with the issuing of licences in Chapter 3 of the POEO Act). Such an approach is an extension of the principle in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia, [19] and applies the same where the general and specific provisions appear in different Acts. [20]

    19. (1932) 47 CLR 1 at 7 (Gavan Duffy CJ and Dixon J).

    20. Deputy Commissioner of Taxation v Dick [2007] NSWCA 190; (2007) 242 ALR 152 at [120]-[121] (Santow JA).

100. Further, I have found that the EPA’s submitted approach to the construction of s 4.50(1) is one which accords with the objects and purpose of the POEO Act. The Long Title of the POEO Act relevantly provides that it is an Act “to protect the environment”, while the objects in s 3 include the protection, restoration and enhancement of the quality of the environment (s 3(a)) and the strengthening of the regulatory framework for environment protection (s 3(e)). To impose an obligation on the EPA to issue an environment protection licence to an applicant it considers not to be a fit and proper person would be inimical to the attainment of those objects.

101. Crush and Haul submitted that the EPA’s construction of the statutory provision invites the Court to make the extraordinary finding that s 4.50(1) of the EPA Act does not apply to the POEO Act, or alternatively “to so much of the POEO Act as would permit the EPA to exercise its discretion in s 55(1) to refuse an application”. There is, it was submitted, no textual basis for any such re-writing of the provision. Such an invitation, Crush and Haul submitted, would have the consequence that a critical element of the integrated development provisions in Part 4, Division 4.8 of the EPA Act would be defeated; that is, to establish a co-ordinated assessment and approval regime to provide certainty of outcome as to whether a given development can, in fact, be carried out. By denying the obligation to issue an approval in accordance with s 4.50(1), all other beneficial provisions which flow from that requirement under Division 4.8 could also be avoided (emphasis added), [21] and would in substance render the entirety of Division 4.8 ineffectual in so far as it is expressed to apply to the POEO Act. Such an interpretation was said to be directly contrary to the express legislative mandate that integrated development includes environmental protection licences under the POEO Act. [22]

     21. E.g., EPA Act ss 4.50(2), 4.50(3).

     22. EPA Act s 4.46(1).

102. I do not accept that Crush and Haul’s approach is one which interprets the statutory regimes harmoniously. I reject the submission that the EPA has paid no regard to the specific inconsistency provisions in both Acts. I have found, as the EPA submitted, that Crush and Haul’s construction of s 4.50(1) of the EPA Act is such as to render nugatory s 51(2) of the POEO Act which relevantly provides for a decision on whether to issue a licence subject to the provisions in Chapter 3 of that Act. That is to say, the decision-making power in s 55(1) of the POEO Act is subject to the provisions in Chapter 3 (including ss 45, 60 and 83). On Crush and Haul’s construction of s 4.50(1) of the EPA Act, those provisions would be avoided altogether by the issuing of general terms of approval under the EPA Regulation 2021 to the consent authority. The obligation of the EPA to grant a licence would need to be performed irrespective of the opinion formed by the EPA as to Crush and Haul’s fitness and propriety to hold a licence under the POEO Act. I do not consider that such a result arises from a construction of s 4.50(1) read harmoniously with ss 7(2)(a) and 51(2) of the POEO Act. I accept the EPA’s preferred construction of the two statutory regimes which applies s 7(2)(a) of the POEO Act according to its terms, and avoids s 4.50(1) overriding the POEO Act. [23]

     23. Cooper Brookes (Wollongong) Pty Ltd 11 Federal Commissioner of Taxation (1981) 14 7 CLR 297 at 320-321 (Higgins J). See also Public Transport Commission of New South Wales v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336 at 350 (Gibbs J).

103. Ultimately, I have found that there are separate exercises of power conferred on the approval authority by s 4.47 of the EPA Act and s 45 of the EPA Regulation 2021 to issue general terms of approval, by s 55(1)(a)(i) of the POEO Act to issue an environment protection licence, and that the inconsistency provision in s 7(2)(a) of the POEO Act which commenced after the Amending Act prevails to the extent of any inconsistency.

Utility of relief sought

104. If I am wrong on the question of statutory construction, and if Crush and Haul be correct in relation to the construction of s 4.50(1), I would, in the exercise of my discretion, withhold the relief sought by Crush and Haul. That is because no useful result would ensue from the grant of relief. [24] No useful result would ensue from the grant of declaratory relief or an order requiring the duty in s 4.50(1) to be performed. That is because the EPA is of the view that Crush and Haul is not a fit and proper person to hold an environment protection licence because of the 2022 conviction whereby Crush and Haul was found to have recklessly committed an offence against the POEO Act. Should the Court grant relief in favour of Crush and Haul and should the EPA be required to grant a licence, it is tolerably clear that the EPA would take steps under s 79 of the POEO Act to revoke that licence. If, as submitted by Crush and Haul, Crush and Haul would have a right to appeal a revocation decision pursuant to s 287(1) of the POEO Act, such right would not be rendered futile by a decision in these proceedings to dismiss the summons as Crush and Haul has already instituted an appeal in this Court in respect of the deemed refusal to grant an environment protection licence.

     24. SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [28] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ) quoting Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [56] (Gaudron and Gummow JJ).

105. In relation to the question of utility of the relief sought, Crush and Haul submitted, firstly, that the grant of relief is of utility as without an environment protection licence, it would be prevented from carrying out development permitted by the development consent. The issuing of an environment protection licence would provide Crush and Haul with a valuable entitlement.

106. Secondly, Crush and Haul submitted that the EPA’s position that it would immediately proceed to revoke the environment protection licence pursuant to s 79 of the POEO Act does not have the consequence that the relief sought would be futile. That is because Crush and Haul, having been a holder of a licence, would have an entitlement pursuant to s 287(1) of the POEO Act to appeal the EPA’s revocation decision to this Court.

107. Thirdly, Crush and Haul submitted that it is well established that a court should be very cautious in declining relief on the basis of alleged futility, and ought only do so where the ultimate outcome is “crystal clear” in the sense that it is inevitable that there will be a valid determination against the applicant. In this case, Crush and Haul submitted that the EPA demonstrated “pre-judgment bias of the most extreme kind”.

108. Fourthly, Crush and Haul submitted the power of the EPA to revoke an environment protection licence must be exercised for a proper purpose, and not capriciously or unreasonably. Crush and Haul submitted that it is evident that the EPA seeks to use the revocation power not for a proper purpose, but for an extraneous purpose, in effect, to frustrate the orders of the Court in the event that the Court makes the orders requested in the summons, and to avoid the statutory consequences of s 51(2) of the POEO Act and s 4.50 of the EPA Act. That, it was said, is particularly the case in circumstances where the EPA is apparently reliant upon a suite of facts/conduct which would have (or should have) been known to it at the time it issued its general terms of approval to a related body corporate under the same family control. Moreover, it was submitted, that the EPA otherwise failed to give weight to the fact, admitted in Crush and Haul’s points of defence, that Ms Cauchi is no longer a director of Crush and Haul.

109. Crush and Haul also submitted that the threatened conduct of the EPA would bring the administration of justice into disrepute, particularly in circumstances where, on the EPA’s pleading, it was evident that the EPA intended that upon the grant of a licence immediately to proceed to revoke that licence without any material change in circumstance from the date that the Court ordered that a licence be issued. It was submitted that conduct of third parties which deliberately frustrates, thwarts, or subverts the purpose of a Court may constitute a contempt; [25] a fortiori for a party bound by the order.

     25. CCOM Pty Ltd v Jiejing Pty Ltd (1992) 36 FCR 524 at 531 (Drummond J); see also Jorgensen v Fair Work Ombudsman (2019) 271 FCR 461 at [12] referring to CCOM; Attorney General v Mayas Pty Ltd (1988) 14 NSWLR 343 at 355 (McHugh JA).

104. I reject Crush and Haul’s submission in relation to the “pre-judgment bias of the most extreme kind”. It is true that all of the evidence with respect to Crush and Haul’s fitness to hold a licence is before this Court in the Class 1 proceedings which were commenced on 21 November 2022. However, the evidence concerning the 2022 conviction was not before the EPA when it made a decision to issue general terms of approval on 24 January 2020.

105. To the extent that it is relevant to the question of statutory construction with which I am here concerned, when the general terms of approval were issued on 24 January 2020, no application for an environment protection licence under the POEO Act had been made, and the Court had not convicted Crush and Haul of offences under that Act. Accordingly, I reject the submission that the EPA “is apparently reliant on a suite of facts/conduct which would have (or should have been) known to it at the time it issued its general terms of approval to a related body corporate under the same family control”.

106. Likewise, Crush and Haul’s allegations of “contempt” and power being exercised “capriciously”, “unreasonably” or for “an extraneous purpose” are misconceived. Sections 79(1) and 79(5)(f) the POEO Act confer power on the EPA to revoke a licence for reasons that include that the holder of the licence is no longer a fit and proper person. If the EPA forms that opinion, and there are rational grounds for doing so, its exercise of power under s 79 will be reasonable and for a proper purpose; that is, the protection of the environment from licence-holders who are not fit and proper persons to carry out scheduled activities. Allegations of acting for an improper purpose and of contempt cannot be made simply by pointing to an adverse decision that may be sustained pursuant to a lawful exercise of statutory power.

Conclusion and orders

113. Accordingly, I make the following orders:

1. The summons dated 19 April 2023 is dismissed.

2. The applicant to pay the respondent’s costs.

**********

Endnotes

Decision last updated: 09 June 2023