Eastern Waste Management Authority Inc v City of Tea Tree Gully Environment Protection Authority v Eastern Waste Management Authority Inc Nos. SCGRG 95/1599 and SCGRG 96/129 Judgment No. 5701 Number of Pages 16

[1996] SASC 5701

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COX(2), PERRY(1) AND LANDER(3) JJ

CWDS
Local government - planning - in 1971 a Local Council gave consent pursuant to the Planning Act then in force for the appellant to operate a dump for the disposal of household garbage at a disused quarry - the consent was expressed to be operative for a term of 25 years and at the expiration of that period to be "subject to extension by agreement between the applicant and the council under such conditions as may be agreed upon" - held that it was lawful for the Council to impose a condition limiting the operation of the consent for a specified time and that the condition validly restricted its operation to the period of 25 years - held further that insofar as the condition in part purported to extend the operation of the consent by agreement between the appellant and the council after the expiration of the period of 25 years, it was invalid as any informal extension had a potential to circumvent compliance with the planning regime then in force - the offending part of the condition could and should be severed from the consent. Planning and Development Act 1966 s36, referred to. Scott Pools Pty Ltd v Corporation of the City of Salisbury (1979) 22 SASR 406 (overruled); Adelaide Pistol Club Inc v District Council of Munno Para and Musolino (1981) 28 SASR 186 (overruled); Corporation of the City of Unley v Claude Neon Ltd and Dalgety Australia Ltd (1983) 32 SASR 329 (overruled); Keenan v City of Port Lincoln (1986) 61 LGRA
58 (overruled), not followed. Matijesevic v Logan City Council (No. 2) (1983) 51 LGRA 51, discussed.

HRNG ADELAIDE, 4 June 1996 #DATE 19:7:1996 #ADD 29:10:1996
Counsel for appellant/respondent     Mr B Hayes QC with EWMA:   Mr A Leydon
Solicitors for appellant/respondent EWMA:   Norman Waterhouse
Counsel for appellant EPA and         Solicitor General with intervener AG:   Mrs R Cant
Solicitors for appellant EPA and intervener AG:   Crown Solicitor (SA)
Counsel for respondent City of Tea Tree Gully:   Mr D Meyer
Solicitors for respondent City of Tea Tree Gully:   Lynch And Meyer

ORDER
Allow the appeal only for the purpose of quashing the order that Special Condition 2 "is not a valid condition".

JUDGE1 PERRY J Pursuant to a consent given by City of Tea Tree Gully ("the Council") under the Planning and Development Act 1966 ("the Planning Act"), Eastern Waste Management Authority Inc ("Eastern Waste"), which was formerly East Torrens Municipal Destructor Trust Inc, has since January 1971 operated a dump for the disposal of household garbage at a disused quarry on Torrens Road, Highbury ("the land").
2. The consent of the Council to the use of the land for that purpose was expressed to be subject to a number of conditions. Condition 10 reads:
    "The term of approval to be initially for a period of
    twenty-five years and subject to extension by agreement between
    the applicant and the Council under such conditions as may be
    agreed upon at that time."
3. It is common ground that the period of 25 years expired on 11 January 1996.
4. By a summons issued in this Court on 11 August 1995, Eastern Waste sought a declaration that Condition 10 was invalid and should be severed from the remainder of the consent.
5. In a judgment given on 1 December 1995,(1) Matheson J, in the exercise of his discretion, and having regard particularly to the delay on the part of Eastern Waste in seeking relief from the Court, dismissed the summons. However, in his reasons for judgment, he expressed the view that condition 10 was not a condition which could lawfully have been imposed under the Planning Act.(2)
6. Eastern Waste appeals to this Court against the dismissal of the summons.(3) The Attorney-General, represented by the Solicitor-General, intervened in the appeal pursuant to s9 of the CrownProceedings Act 1992.
7. I will refer to that appeal as the planning appeal.
8. Put shortly, the position of Eastern Waste is that the learned trial Judge wrongly exercised his discretion to refuse relief on the ground of delay; that not only is Condition 10 invalid but it should have been declared to have been invalid; and that the condition is severable and should have been severed from the remainder of the consent.
9. By a notice of alternative contentions, the Council seeks to uphold the judgment appealed from on the ground (inter alia) that Condition 10 is valid, or alternatively, if invalid, is not severable.
10. If Eastern Waste persuaded this Court to give effect to its contentions, the effect would be that the planning consent would remain operative but shorn of Condition 10. Eastern Waste could then go on operating its dump indefinitely, subject only to compliance with whatever other statutory requirements now apply to such an operation.(4)
11. The planning appeal was heard at the same time as an appeal to this Court by the Environment Protection Authority ("EPA")(5). That appeal, to which Eastern Waste is respondent, is against the decision of the Environment Resources and Development Court ("the ERD Court") that a "special condition" imposed on an environmental licence issued to Eastern Waste by EPA was not a valid condition and should be severed from the licence.(6) The special condition provided:
    "2. The Licensee shall ensure that in accordance with Condition
    10 of the Development Authorisation as granted by the City of
    Tea Tree Gully on 11 January 1971, no waste shall be stored,
    treated or disposed of at the depot after 11 January 1996,
    subject to any alteration or amendment to the Development
    Authorisation."
12. The EPA licence was expressed to commence on 1 May 1995 and to remain in force until 31 July 1996.
13. Put shortly, Judge Trenorden held that Condition 2 was "beyond the power of the Authority to impose, and thus is invalid"(7). The basis of her reasoning leading to that conclusion was that there was an internal inconsistency in the licence in that "it cannot both purport to authorise the activity for a period of fifteen months and limit the authorisation to a lesser period".(8)
14. In its appeal, EPA contended that there was no internal inconsistency between the impugned condition and the other terms of the licence, and further, that neither the licence nor the condition was invalid.
The planning appeal 15. It is necessary first to deal with the refusal by the learned trial Judge to exercise his discretion in favour of making a declaration.
16. Before the learned trial Judge, the Council contended that SCR R 63, which deals, inter alia, with applications for declarations, was not an appropriate vehicle for the bringing of the proceedings. The Council submitted that if Eastern Waste had wished to challenge Condition 10, it should have done so at the time the condition was imposed, either by exercising its right of appeal to the Planning Appeal Board, the time for which was two months after the relevant decision,(9) or by taking prerogative proceedings. Pursuant to SCR R 98.06, a summons for judicial review must be issued "within six months from the date when grounds for the review first arose".
17. The Council further contended that SCR R 63 did not avail the plaintiff so as to support proceedings for a declaration, in that Eastern Waste was not within the meaning of SCR R 63.01 a person "claiming to be interested under a deed, will or other written document". Neither, so the Council contended, was Eastern Waste within the meaning of SCR R 63.02 a person claiming "to be entitled to any right" which depended upon a proper "interpretation or validity of a statute, a statutory instrument or by-law ..." within the meaning of that rule.
18. In his reasons for decision, the learned trial Judge "doubted" whether SCR R 63.01 could be invoked, but held that counsel for the Council had not persuaded him, "subject to discretionary considerations", that Eastern Waste was necessarily out of court under SCR R 63.02.
19. He went on to observe(10): "It seems to me that the plaintiff's alleged entitlement to a declaration does depend upon the proper interpretation of s36(8) of the Planning and Development Act 1966."
20. I will in due course refer to s36(8). At this stage, it is sufficient to indicate that in my view Eastern Waste's claim for a declaration did involve the need to interpret the section. Subject to discretionary considerations, Eastern Waste was entitled to invoke the jurisdiction of the Court pursuant to SCR R 63.02. In those circumstances, it is unnecessary to have regard further to SCR R 63.01.
21. As to the exercise of the discretion, the learned trial Judge made the following observations:(11)
    "I turn to the question of my discretion. Although it now
    seems to be widely accepted that the grant of a declaration is
    not an equitable remedy (see, for example Meagher, Gummow and
    Lehane "Equity, Doctrines and Remedies" 3rd Edn p489), it seems
    that declaratory relief can be refused for "undue delay" (see de
    Smith's "Judicial Review of Administrative Action" 4th Edn p514,
    Hogg v Scott (1947) (1) KB 759 at p767, Young: "Declaratory
    Orders" 2nd Edn para609, Zamir and Woolf: "The Declaratory
    Judgment" p116).

Here the delay was extreme and inexcusable. If ever there was a
    case of "a party sleeping on its rights", this is it. Moreover,
    I think the agreed facts indicate that the plaintiff actually
    acquiesced in the presence of Condition 10, and that its
    acquiescence has continued. I accept the defendant's affidavit
    evidence that important and relevant records have been
    destroyed. I can not overlook, in what is an environmentally
    sensitive area, the interests of the defendant's ratepayers who,
    I imagine, have reasonably expected, and still reasonably
    expect, the consent to come to an end. Nor can I overlook, even
    if it is far from decisive, the time limit for appealing to the
    Planning Appeal Board (two months) or for applying for judicial
    review (six months)."
22. With respect to the learned trial Judge, in my opinion, the exercise of his discretion against the granting of declaratory relief miscarried. While the existence of alternative remedies by way of appeal or judicial review was a relevant consideration, it was by no means decisive. While in one sense the delay was "extreme", I do not think that it is right to say that it was "inexcusable".
23. Whatever the history of the matter, as the 25 year period drew to a close, an important question arose as to the rights of the parties thereafter. It involved a matter of no little importance to a number of suburban councils whose domestic refuse is disposed of by Eastern Waste in its dumping operation in question. The question of destruction by the Council of what were described as "important and relevant records" was hardly an important consideration, given that the central issue to be determined was a question of statutory construction.
24. With respect to the learned trial Judge, his action in indicating that in his view Condition 10 was beyond the power of the Council to impose, but then to deny declaratory relief giving expression to that view, was to leave the parties in the unsatisfactory position of not knowing precisely what the status of the licence is.
25. In my opinion, the learned trial Judge should have proceeded to grant declaratory relief.
26. I would allow the appeal as to that aspect of the matter.
27. It becomes necessary then to consider the validity of Condition 10.
28. It is common ground that the only source of power which could support the imposition of Condition 10 is to be found is s36 of the Planning and Development Act. Section 36 has to do with Planning Regulations. Such regulations were the means by which effect was given to authorised development plans. The scheme of the Act and of the Planning Regulations was to provide, inter alia, that certain specified uses to which land might be put required the consent or approval of the relevant planning authority.
29. Sub-ss(8) and (9) were in the following terms:
    "(8) Where any provision of this Act provides that, in
    relation to any land, a thing may be done with the consent,
    permission or approval of a person or body or that a thing shall
    not or may not be done without the consent, permission or
    approval of a person or body, such consent, permission or
    approval may be given absolutely or subject to conditions
    imposed or expressed by the person or body concerned, including
    conditions limiting the operation or effect of the consent,
    permission or approval to a limited period or by reference to
    the applicant only or to the type of use which is made or to be
    made of the land by the applicant, or prescribing the type, size
    or kind of construction of any building or structure to be
    erected on the land or requiring the removal or alteration of
    any work or the re-instatement of any land.

(8a) ...

(9) Where a person purports to do or causes or permits to be
    done an act of any kind in pursuance of any consent, permission
    or approval obtained or granted under this Act, but such act is,
    in any respect, in breach of a condition attached to such
    consent, permission or approval, such act shall be deemed to
    have been done without such consent, permission or approval and
    such consent, permission or approval may be revoked by the
    person or body that granted it." (my emphasis)
30. In Scott Pools Pty Ltd v Corporation of the City of Salisbury,(12) Jacobs J dealt with a condition imposed by the Planning Appeal Board relating to the use of retail premises for the conduct of the business of a hardware store and builders' suppliers. The condition provided, relevantly: "... that the proposed use may be carried out for a period of two years only from the date of this determination and that at the end of that period, the use hereby approved will come to an end ..."
31. In their appeal to this Court, Scott Pools, which owned the land on which the business was conducted, contended that the Board had no power to impose a condition in those terms.
32. Jacobs J held that there was no planning reason for refusal of consent without the limitation of time imposed by the board. He therefore varied the determination of the board so as to grant consent without that limitation.
33. He reached that view on the planning merits. It follows that the observations which he subsequently made as to the question of the power of the board to impose a time limitation on its consent were strictly obiter.(13)
34. Jacobs J approached the matter in this way:(14) "There remains the final question, whether there is any power in the Planning Appeal Board, or a planning authority, to limit the operation of a consent to a specified period."
35. After proceeding to set out the text of s36(8) of the Planning and Development Act, His Honour continued as follows:
    "The answer to this question appears to depend upon whether
    a time limit simpliciter is a "condition" within the meaning of
    that section. I am disposed to think that it is not, and that a
    limited consent is not a conditional consent. The matter may be
    tested quite simply by asking what is "the condition" to be
    observed, fulfilled, or obeyed? The context, to my mind,
    clearly demands that a conditional consent is one that requires
    either an act or a forbearance, the breach of which within a
    limited period would invalidate the consent. That such a
    meaning is in contemplation is, I think, clear from sub-s(9)
    which refers to the consequences of a person doing an act in
    breach of a condition attached to such consent. A simple
    limitation as to time, which calls upon nobody to do or forbear
    from doing anything, by way of a condition attached to such
    consent, is not within the purview of sub-s(8). No other source
    of power for a consent limited in point of time was suggested,
    and I venture to suggest that any such power would be desirable,
    if at all, only if its exercise is restricted within narrow
    limits. It is in the public interest that planning issues
    should be resolved, and that the parties concerned should not be
    left in a state of suspense or uncertainty, more particularly as
    the implementation of many planning approvals will involve an
    outlay of money which ought not unreasonably to be placed at
    risk merely because the planning decision might be difficult, or
    uncertain."
36. In my opinion, and with great respect to Jacobs J, that construction of the section is wrong.
37. In the first place, I see no "state of suspense or uncertainty" attaching to a straightforward limitation of the operation of a consent to a specified period.
38. Not infrequently there will be situations which from the planning point of view may sensibly and conveniently be met by limiting the operation of a consent to a limited period. Jacobs J gave examples of such situations during the course of his judgment.(15)
39. Neither do I think that the terms of sub-s(9) should be given an effect which would confine, in the manner suggested by Jacobs J, the operation of the words in sub-s(8) "including conditions limiting the operation or effect of the consent, permission or approval to a limited period". Those words are plain, and should be given effect to in accordance with their ordinary meaning.
40. It is true that if consent is given for a limited period, once the period expired, the consent would be at an end. The result would be that there would then be little work for sub-s(9) to perform. But sub-s(9) will be of application during the period of operation of a consent limited by reference to time. The fact that in such a case it may not be of application after the limitation of time has expired is nothing to the point, and could not justify reading sub-s(8) down in the manner which Jacobs J suggests.
41. In Adelaide Pistol Club Incorporated v District Council of Munno Para and Anor(16), Wells J held void a condition attached to a planning consent which provided, inter alia, that the consent "shall lapse and be void if the buildings and structures and engineering and site works and landscaping and planting of flora are not completed in all respects" on or before a specified date.
42. In the course of his decision in that case, Wells J observed, with reference to s36(17):
    "Sub-section (8) contemplates that the element of time may
    be incorporated into a condition in such a way as to limit the
    effect or operation of a consent to a limited period. The
    meaning and intention of this provision (which was discussed by
    Jacobs J in Scott Pools Pty Ltd v Salisbury Corporation(18) is,
    in my opinion, to permit a condition to be formulated rather in
    the form of a determinable limitation: for example, a consent
    that is to endure so long as the subject land is used in a
    particular way represents a consent in which has been
    incorporated a condition limiting the operation of the consent
    to a definite period; when the particular use ceases, so does
    the consent. What Jacobs J held (and, with respect, I agree)
    was that the Act forbade a 'condition' whose sole effect and
    purpose was to defeat a consent by reason of lapse of time.

...

Sub-section (9) expressly confers the power to revoke a consent
    if the use of the land purportedly made in pursuance of a
    consent is in breach of a condition upon which the consent was
    granted. In my judgment, this positive conferment of the power
    to revoke provides, by necessary implication, a means for
    regulating the very undertaking sought to be controlled by the
    subject condition. Revocation may take place, so the
    sub-section decrees, when use is made of the land in question in
    breach of a condition. Such a provision, in my opinion, is
    inconsistent with a determination that enjoins an automatic
    cesser of consent for breach of condition. The Act contemplates
    that the person or body who granted the consent, before

    committing himself or itself to an act of revocation, should be
    satisfied that a breach of condition has taken place. The
    subject condition does not make allowance for any such procedure
    - indeed, it purports to exclude it by necessary implication."
43. With great respect to Wells J, in my opinion, his reasoning as revealed in those passages is flawed for the same reasons as I have advanced in the comments made by me with respect to the judgment of Jacobs J in Scott Pools (supra).
44. In Corporation of the City of Unley v Claude Neon Ltd and Anor,(19) Wells J held to be null and void a condition attached to the grant of consent by a council to the erection of an office building: "... that no signs be erected or displayed without prior consent of the Council".
45. Wells J held in that case that the grant of a consent with that condition meant that the consent lacked finality: see, for example, his observation(20): "It, in effect, purports to reserve the right to pronounce on these matters when the question of erecting a sign is later raised."
46. There is no reason to question the soundness of that observation. But it does not throw any light on the question at issue here.
47. In Keenan and Anor v City of Port Lincoln,(21) the South Australian Planning Appeal Tribunal held, relying on Scott Pools, that there was no power under the Planning Act to grant planning consent subject to a condition expressed in terms limiting its operation to a specified period.(22) In my opinion, for the reasons which I have given, the decision should be overruled.
48. On a proper construction of s36 of the Planning Development Act, the words in sub-s(8): "... including conditions limiting the operation or effect of the consent, permission or approval to a limited period ...." meant what they said. They permitted the imposition of a condition in the form of Condition 10 of the planning consent in question, at least to the extent that it limited the approval given by the consent to a period of 25 years.
49. However, I entertain some difficulty with that part of the condition which reads: "... and subject to extension by agreement between the applicant and the Council under such conditions as may be agreed upon at that time."
50. In my opinion, those words offend s36(8) and were not otherwise within the power of the Council to stipulate. Not only do they give rise to unacceptable uncertainty as to the position at the expiration of the term of 25 years, but to give full effect to that part of the condition would be to run counter to the obligation of Eastern Waste at all times to obtain planning consent for its operation in accordance with all of the procedures laid down in the relevant planning legislation. Those procedures cannot be circumvented by the Council dealing directly with a person embarking on a use of land which otherwise requires a consent, or, as would now be the case, which requires compliance with the Development Act1993. To permit that course would be to deny, for example, an opportunity for local residents to object to further consent being granted, or to appeal from any decision which otherwise might be made.
51. However, it would be wrong to suggest that the whole of Condition 10 is invalid on that account. It seems to me that the offending part of it dealing with possible extension after 25 years, may properly be severed, while upholding the rest of the provision.
52. This means that the 25 year period having elapsed on 11 January 1996, if Eastern Waste wishes to continue its dumping operations lawfully after that date, it is incumbent upon it to apply for and obtain such planning approval as may be necessary under the present planning regime.
53. I would allow the appeal from the judgment of Matheson J to the intent that there be substituted a declaration that the words in Condition 10 of the planning consent granted on 11 January 1971 "and subject to extension by agreement between the applicant and the Council under such conditions as may be agreed upon at that time" are invalid, and should be struck out. However, I would hold that the remainder of Condition 10, that is to say, the words "the term of approval to be initially for a period of 25 years" are a valid expression of the power to impose conditions and take effect to confine the approval of the use in question to that period.
The Environment Protection Act appeal 54. On 24 November 1995, Eastern Waste was issued with an environmental authorisation pursuant to Part 6 of the Environment Protection Act1993, taking the form of a licence to undertake a prescribed activity under s36 of the Act, namely, the activity of a "waste depot" on the subject land. The licence is expressed to commence on 1 May 1995 and to remain in force until 31 July 1996 "unless sooner revoked or surrendered".(23)
55. The licence was issued subject to a number of conditions. The condition the subject of this appeal is the condition numbered 2 under the heading "Special Conditions of Licence", which is as follows:
    "2. The Licensee shall ensure that in accordance with Condition
    10 of the Development Authorisation as granted by the City of
    Tea Tree Gully on 11 January 1971, no waste shall be stored,
    treated or disposed of at the depot after 11 January 1996
    subject to any alteration or amendment to the Development
    Authorisation"
56. The Development Authorisation there referred to is the planning consent the subject of the planning appeal ("the planning consent").
57. Eastern Waste appealed to the ERD Court against the decision of EPA to issue the licence in that form. The target of the appeal was Special Condition 2. Eastern Waste complained that Condition 10 of the planning consent was invalid and of no effect, and accordingly Special Condition 2 should not have been imposed. Alternatively, Eastern Waste contended that the imposition of Special Condition 2 was not authorised by the provisions of the Environment ProtectionAct.
58. The appeal to the ERD Court was heard subsequent to the decision of Matheson J refusing the relief sought in the proceedings brought in this Court. Following the hearing of argument on the appeal, Judge Trenorden, who constituted the ERD Court, held that the impugned condition was beyond the power of the authority to impose and was, therefore, invalid. She further held that the condition was severable from the environmental authorisation granted to Eastern Waste, and ordered that it should be severed.
59. In the result, Eastern Waste has an environmental authorisation in terms of the licence from which Special Condition 2 has been deleted, the authorisation being due to expire on 31 July 1996.
60. In its appeal to this Court, EPA contends that Judge Trenorden wrongly held that Special Condition 2 was invalid; alternatively that she erred in holding that the condition was severable; and in any event, that she erred in deciding to strike out the condition rather than to vary it or to vary the term of the licence. In effect, the EPA seeks from this Court a restoration of its decision to issue the licence with Special Condition 2.
61. In her decision, Judge Trenorden summarises the relevant statutory provisions in the following way:(24)
"The Environment Protection Act repealed the Waste
    Management Act 1987. By section 36 of the Environment
    Protection Act, a person may not undertake a prescribed activity
    of environmental significance except as authorised by an
    environmental authorisation issued in the form of a licence
under Part 6 of the Environment Protection Act. Schedule 1 to
    the Act lists 'the conduct of a depot for the reception,
    storage, treatment or disposal of waste', subject to certain
    exceptions which are not relevant to this matter, as a
    prescribed activity of environmental significance.

Pursuant to section 40 of the Act, the Authority is empowered to
    grant an environmental authorisation. However, the Authority
    may not refuse to grant a licence where the applicant has been
    granted a development authorisation under Division 1 of Part 4
    of the Development Act 1993 in relation to the prescribed
    activity of environmental significance, subject to the powers of
    the Authority to refuse pursuant to subsection (3) and (4) of
    section 47. (Section 47(2)). An environmental authorisation
    remains in force for a term to be determined by the Authority
    and specified in the authorisation on its grant (section 43(1)).

In this case, some of the transitional provisions in clause 5 of
Schedule 2 to the Environment Protection Act are relevant. They
    provide as follows:
'1. Despite the provisions of Part 6, the Authority must
    grant ... licences (to have effect from the commencement of this
    Act) as required to enable persons to carry on activities
    lawfully carried on by those persons immediately before the
    commencement of this Act.      4. A ... licence ... granted pursuant to this clause has
    effect for a term determined by the Authority and subject to
    this Act and any conditions of the approval, licence or
exemption imposed by the Authority under Part 6.'

An environmental authorisation must be renewed by the Authority
    provided application is made and the relevant fee has been paid,
    unless a condition of the authorisation limits or excludes the
    right of renewal (section 43(5)). In this case, the licence
    issued was expressed to be for a term of fifteen months, from 1
    May 1995 to 31 July 1996, and there was no condition excluding
    or limiting the right of renewal. On the contrary, condition
    numbered 400-213 stated:
     '(1) The last date for an application for renewal of this
    authorisation is sixty days before expiry.

(2) The last date for payment of the authorisation fee for a
    renewed licence period is thirty days before expiry.'

The Authority is empowered to impose conditions on an
    environmental authorisation 'with respect to such matters as are
    contemplated by this Act or as the Authority considers necessary
    or expedient for the purposes of this Act.' (section 45(1)).
    Conditions may be imposed on the granting of an authorisation
    (section 45(3)). In determining what conditions should be
    imposed, or the extent of the term of, an environmental
    authorisation, the Environment Protection Authority must have
    regard to certain matters (section 47(1)), namely:
     '47(1) ....
     (c) have regard to, and seek to further, the objects of this
    Act; and
     (d) have regard to the general environmental duty; and
     (e) have regard to any relevant environment protection
    policy, and, in relation to an application for exemption from
    mandatory provisions of an environment protection policy, give
    effect to any provisions of the policy governing the granting of
    such exemptions; and
     (f) have regard to any relevant environmental impact
    statement, Assessment Report or development authorisation under
    the Development Act 1993; and
     (g) have regard to any relevant environment improvement
    programme or environment performance agreement or any such
    proposed programme or agreement; and
     (h) have regard to any public submissions made to the
    Authority under this Part that are relevant to the matters to be
    determined; and
     (i) in relation to any proposed variation of the conditions
    of an environmental authorisation, have regard to any
    submissions made by the holder of the authorisation to the
    Authority under this Part.'

Matters contemplated by the Environment Protection Act as the
    subject of any special conditions to be attached to an
environmental authorisation, are set out in Division 5 of Part 6
    of the Act. These matters include the lodgment of a financial
    assurance or sum of money; the carrying out of specified tests
    and monitoring and/or compliance with the requirements of an
    environmental audit and compliance program; the preparation and
    publication of an emergency plan of action; the development of,
    and compliance with, an environment improvement program.

It was agreed that the impugned condition was not imposed
    pursuant to the powers of the Authority with respect to special
conditions set out in Division 5 of Part 6 of the Act. It was
    argued that the condition was imposed pursuant to the general
    powers of the Authority to impose conditions under section 45(1)
    of the Act."
62. The full text of s45(1) is:
    "(1) The Authority may impose conditions of an environmental
    authorisation with respect to such matters as are contemplated
    by this Act or as the Authority considers necessary or expedient
    for the purposes of this Act."
63. In my opinion, Her Honour correctly held that the words "that the Authority considers necessary or expedient for the purposes of the Act" did not enable the Authority to extend the "scope or general operation" of the Act,(25) as to which proposition she referred to Shanahan v Scott.(26) She further observed, correctly, in my view, that the power to impose conditions must be construed "to conform with the purposes and structure of the Act" and should not be exercised so as to impose a condition for a purpose "ulterior to the enabling Act".(27)
64. Given that it is accepted that the power to impose special conditions conferred by Division 5 of Part 6 of the EnvironmentProtection Act does not support the imposition of the special condition now in question, authority for its imposition must therefore be found within the general power to impose conditions contained in s45(1).
65. It will have been seen that the various matters to which, pursuant to s47(1), EPA must have regard in determining what should be the "term (sic) or conditions of an environmental authorisation", include any "development authorisation under the Development Act 1993".
66. A consent under the Planning Act is not an authorisation under the Development Act 1993. However, it is accepted by all parties before the Court that the operation of various transitional provisions, the detail of which is not material for present purposes, the consent given under the Planning Act is still operative, or at least was still operative until 11 January 1996.
67. It follows that, if not pursuant to s47(1), certainly pursuant to s45(1), in considering the formulation of conditions to be attached to the environmental authorisation, EPA should properly have had regard to the planning consent. For example, it would clearly have been undesirable to impose conditions which would conflict with the terms upon which the planning consent was granted, or otherwise allow the environmental authorisation to operate in a way which gave rise to any such conflict.
68. But it is one thing to say, as I would have thought was self evident, that an environmental authorisation should not be granted on terms which could create potential conflict with any other statutory duties owed by the licence holder. It is another thing to go so far as to impose a condition upon an environmental authorisation designed to ensure that the licence holder complies with obligations imposed by a statutory regime separate from the Environment Protection Act.
69. I think it better that whatever enforcement provisions exist in other statutory contexts be allowed to operate without any attempt to reinforce them by way of a condition on an environmental authorisation.
70. Quite apart from any other considerations, the re-expression of a duty to comply with other legislation as a condition of an environmental authorisation would have the effect of exposing the licence holder to a double penalty: one under the Act in which the primary obligation arises, and the other by way of the penalties for breach of a condition attaching to a licence imposed by the Environment Protection Act.
71. On the other hand, I would see no difficulty in conditioning an environmental authorisation so that it inured only for so long as some other authority, such as a planning consent, operated; that is, a purely temporal limitation linked with some other authority. In my opinion, the view taken by Judge Trenorden that, in effect, there could not be such a condition operating in defeasance of a licence, was wrong. Neither would I see any difficulty with an endorsement (as opposed to a condition) on an environmental authorisation warning the holder that the licence did not permit any activity which would be in breach of any consent or authorisation given under any other specified statutory provision.
72. Counsel for the appellant submitted that the effect of the licence in its operation, and having regard to a Special Condition 2, was to preclude the further storage, treatment or disposal of waste at the depot after 11 January 1996 (or any other date to which the development authorisation might be extended), but to continue thereafter to oblige Eastern Waste to observe the other conditions of the licence. An example of such a condition was Condition 3 which bound Eastern Waste not to permit, inter alia: "... the escape of land fill gas or leachate from the depot."
73. Judge Trenorden had some difficulty in accepting that proposition.(28) Be that as it may, she eventually decided the matter on the footing that the imposition of the impugned condition gave rise to an internal inconsistency within the authorisation which, for that reason, was beyond power. She put it this way:(29)
    "An environmental authorisation to undertake an activity of
    prescribed environmental significance for a term of fifteen
    months with a right of renewal is precisely what it says. It
    cannot both purport to authorise the activity for a period of
    fifteen months and limit the authorisation to a lesser period.
    Given that the legislation enables the Authority to fix the term
    of the licence, it is not contemplated by, or necessary or
    expedient for the purposes of the Act, that a condition be
    imposed limiting the term of the licence. Thus, a condition
    purporting to do this is beyond the power of the Authority."
74. In my opinion, for the reasons which I have already indicated, it would not be beyond power for EPA to issue a licence for a certain term, but with a condition which would operate in defeasance of that term, in the sense that the authority would cease if, for example, some other statutory authority such as Planning Act approval or consent came to an end within the period. To have such a condition in defeasance would simply be a means of ensuring that the environmental authority ran in parallel to some other statutory authority which might be necessary for the activity in question to be carried out, and in my opinion, would not be outside the scope of the power to impose conditions.
75. On the other hand, the condition in question seems to go beyond that. Its effect appears to depend upon whether or not the words "stored, treated or disposed of" accurately reflect the scope of the authority given by Condition 10 of the Planning and Development Act consent (referred to in Special Condition 2 as the "development authorisation"). I think it is undesirable that the condition should attempt to reflect a view held by EPA as to the scope of the activity authorised by the planning consent.
76. The real thrust of the condition appears to be to ensure that the environmental authorisation did not permit Eastern Waste to engage in activity which would be in breach of the planning consent. For the reasons which I have given, even although the imposition of such a condition may be within power, it is undesirable for EPA to attempt such an exercise.
77. The appeal to this Court is governed by the Environment Resources and Development Court Act 1993, s30. Such appeals are regulated by SCR R 96AA which in turn, in the case of appeals to the Full Court, stipulates that such an appeal is to be governed by SCR R 95. SCR R
95.15 provides, inter alia, that the Full Court when hearing an appeal:

    "...
    (d) may amend, set aside or discharge any judgment appealed
    from;
    (e) may give any judgment, assessment or award or make any
    order which might have been made by the Judge appealed from, and
    make such further or other order as the justice of the case may
require; ...." Pursuant to s108 of the Environment Protection Act, the ERD Court may on hearing an appeal:
    "(a) confirm, vary or reverse any decision or order
    appealed against;
    (b) ...
    (c) make any consequential or ancillary order or direction, or
    impose any condition that it considers necessary or expedient."
78. In my opinion, the condition in question, while not beyond the power of EPA to impose, was both undesirable and unnecessary. It would be better if the licence had been issued without that condition. It would then operate according to its terms for the period stated on its face, that is, until 31 July 1996 "unless sooner revoked or amended". However, insofar as the conduct of the dumping operation carried out by Eastern Waste was dependent upon planning approval, the environmental authorisation would not operate to permit that part of Eastern Waste's operation as depended upon approval of the relevant planning authority to be pursued after planning approval had lapsed or otherwise come to an end.
79. It follows that in my view the impugned condition on the environmental authority should be quashed. I agree with Judge Trenorden that it is severable from the licence.
80. I would allow the appeal only for the purpose of quashing the order that Special Condition 2 "is not a valid condition".(30) I would leave in place the order that it be severed from the licence.

JUDGE2 COX J I agree with the reasons of Perry J and the orders he proposes in each appeal.

JUDGE3 LANDER J I also agree with the reasons of Perry J and the orders he proposes in each appeal.
1 S5357. 2 The Act has since been repealed; see the Planning Act 1982. The Planning Act 1982 was in turn repealed by the Development Act 1993. 3 Appeal in Action No 1599 of 1995. 4 For example, see now the Development Act 1993 and the EnvironmentProtection Act 1993. 5 Action No 129 of 1996. 6 See as to the order of the Environment Resources and Development Court, Action 129 of 1996, AB page 107. 7 Judgment No.OE315, p14, AB106. 8 Judgment No.OE315, p12, AB104. 9 Planning and Development Act 1966, s27(2)(a). 10 Judgment No.S5357, p14, AB185. 11 AB 185. 12 (1979) 22 SASR 406. 13 This was expressly acknowledged by Jacobs J: see 22 SASR at 410. 14 22 SASR at 415. 15 See the reference, for example, to Fazari v The Corporation of the City of Salisbury (unreported, No 271 of 1973) which related to the temporary use of market gardening on residential land not yet ready for residential development. 16 (1981) 28 SASR 186. 17 28 SASR 190-191. 18 (1979) 22 SASR 406 at 415. 19 (1983) 32 SASR 329. 20 32 SASR at 332. 21 (1985) 17 APAD 332: c/f Matijsesevic v Logan City Council (No 2)
(1983) 51 LGRA 51. 22 The question was whether it would be lawful to grant consent for the use of the land as a motel, for so long as a portion of a road reserve used for parking remained available for that purpose. 23 Action No 129 of 1996, AB 85. 24 AB 95. 25 Judgment No.OE315, p6, AB 98. 26 (1956) 96 CLR 245. 27 See Twenty-Seven Properties Ltd v Corporation of Noarlunga and Ors (1975) 11 SASR 188. 28 Judgment No.OE315, p11, AB 103. 29 Judgment No.OE315, p12, AB 104. 30 AB 107.