Environment Protection Authority v SA Morgan Pty Ltd

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
ENVIRONMENT PROTECTION AUTHORITY v SA MORGAN PTY LTD
[2017] SASCFC 164
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Blue)
8 December 2017
ENVIRONMENT AND PLANNING - POLLUTION - WATER POLLUTION
ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - CIVIL ENFORCEMENT
ENVIRONMENT AND PLANNING - POLLUTION - GENERAL MATTERS - OTHER STATES AND TERRITORIES
Appeal against judgment quashing an environment protection order.
The appellant issued to the respondent an environment protection order requiring it to cease deposition of soil into part of the Tobilong wetland, engage an environmental consultant to develop a plan to the appellant's satisfaction to remove soil already deposited and remediate the affected area and submit a copy of the plan to the respondent.
The Environment Resources & Development Court upheld an appeal by the respondent against the order on the grounds that the requirement to engage an environmental consultant to develop a plan and submit it to the respondent was ultra vires s 93 of the Environment Protection Act 1993 (SA) because it was not issued for the purpose of securing compliance with clause 11 of the Environment Protection (Water Quality) Policy 2015 and because in any event it was lacking in certainty and could not therefore be reasonably regarded as being for the purpose of securing compliance. The Court rejected an argument by the respondent that the soil had not been discharged into “waters” within the meaning of clause 11 of the Policy.
The appellant appeals against the Court’s order. The respondent by notice of contention contends that the Court erred by not finding that the soil was not discharged into “waters” within the meaning of clause 11.
Held by Blue J (Kourakis CJ and Peek J agreeing) dismissing the appeal:
1. On the notice of contention: the Court correctly found that the soil was discharged into “waters” within the meaning of clause 11 because the definition of “discharge waste or a pollutant into waters or onto land" in clause 3(2) of the Policy encompasses the discharge of a pollutant into a watercourse that is temporarily dry and applies for the purpose of the reference in clause 11 to “waters” (at [55]).
2. The Court correctly held that the impugned requirement of the order was ultra vires s 93 of the Act because, the contravention being a past contravention when the order was issued, the requirement could not be said to “secure compliance” with the Policy (at [81]).
3. The Court erred in finding that the impugned requirement of the order was ultra vires s 93 as lacking in certainty (at [92]).
4. Appeal dismissed (at [93]).
Environment Protection Act 1993 Ss 25, 27, 93, 93A, 95, 99, 100 102, 103, 103J, 104, 106, Parts 10 and 11; Environment Protection (Water Quality) Policy 2015 (SA) Clauses 3, 10, 11, 12, 14, 15, 16, 17, 18, Schedules 2 and 3 , referred to.
Craddock v Green [1983] RTR 479; Vaughan v Biggs [1960] 2 All ER 473, discussed.

ENVIRONMENT PROTECTION AUTHORITY v SA MORGAN PTY LTD
[2017] SASCFC 164
Full Court: Kourakis CJ, Peek and Blue JJ
KOURAKIS CJ:

I would dismiss the appeal. I agree with the reasons of Blue J.
PEEK J:
I would dismiss the appeal. I agree with the reasons of Blue J.
BLUE J:
This is an appeal against a judgment of the Environment Resources and Development Court allowing an appeal against and quashing an environment protection order.[1]
[1] SA Morgan Pty Ltd v Environment Protection Authority [2017] SAERDC 3.
Between 22 and 25 February 2016 the respondent SA Morgan Pty Ltd (Morgan) deposited soil onto part of the Tobalong wetland adjacent to the River Murray at White Sands.
On 26 February 2016 the appellant the Environment Protection Authority (the Authority) verbally issued to Morgan an emergency environment protection order pursuant to section 93 of the Environment Protection Act 1993 (the Act) requiring the cessation of deposition of soils into the wetland. The order was issued on the basis that Morgan had discharged a class 2 pollutant into waters and thereby contravened clause 11 (clause 11) of the Environment Protection (Water Quality) Policy 2015 (SA) (the Policy).
On 4 March 2016 the Authority served on Morgan an environment protection order pursuant to section 93 (the Order) requiring Morgan to forthwith cease the deposition; engage an environmental consultant to develop a plan to the Authority’s satisfaction to remove the soil and remediate the affected area and submit a copy of the plan to the Authority by 24 March 2016.
Morgan appealed against the Order to the Environment, Resources and Development Court (the Environment Court) on three alternative grounds:
1.the pollutant was not discharged into “waters” within the meaning of clause 11;
2.requirements 2 and 3 of the Order were ultra vires section 93 of the Act because the contravention (if established) of clause 11 was an historical act as at 3 March 2016 and the Order was therefore incapable of being issued “for the purpose of securing compliance with” clause 11 within the meaning of section 93(1)(a)(ii);
3.requirements 2 and 3 of the Order were ultra vires section 93 of the Act because they were lacking in certainty and could not therefore be reasonably regarded as being for the purpose of securing compliance with clause 11.
The Environment Court rejected the first ground, upheld the second and third grounds and quashed the Order. The Authority appeals against the judgment of the Environment Court on grounds of law, contending that the Environment Court erred in concluding that requirements 2 and 3 were ultra vires section 93. By notice of contention, Morgan contends that the Environment Court erred in rejecting its first contention.
Background
Morgan at material times carried on an earthmoving business. Stewart Morgan was at material times its sole director.
In December 2015 Morgan purchased land at 1155 Jervois Road White Sands (the Land). The Land has an irregular shape. It has a frontage of 13 metres[2] to Jervois Road on its southern boundary and a frontage of 370 metres to the River Murray on its northern boundary. It has a western boundary of 440 metres and an eastern boundary of 170 metres. It has an area of 8.3 hectares.
[2] All dimensions and areas referred to herein are rounded to two significant figures.
The Land can be notionally divided into two sections. The northern section (the northern section) is approximately rectangular with dimensions of approximately 360 metres north-south (including the River Murray frontage) and approximately 160 metres east-west. There is a dirt road (the dirt road) that runs adjacent to and along the entire western boundary of the northern section.
The northern section is relatively flat and low lying. It contains a serpentine shaped body of open water (the lake) and the balance comprises a reed bed (the reed bed). The reeds in the reed bed are very thick. The whole of the northern section falls within a larger area known as the Tobalong wetland which lies adjacent to the River Murray’s southern bank. During and as a result of regular floods, the reed bed is inundated with standing water. During the dry months it is marshy with small local pools of standing water.
The southern section (the southern section) is approximately wedge shaped with dimensions of approximately 150 metres north-south at its northern end, approximately 270 metres east-west and 13 metres north-south at its southern end. The southern section generally slopes up towards Jervois Road and is higher than the northern section.
Between 22 and 25 February 2016 Morgan used heavy machinery to load soil near the Jervois Road entrance of the Land, transport it and deposit it onto an area adjacent to the dirt road at the western end of the reed bed (the deposition area). The soil was deposited directly onto the reeds in the reed bed, thereby flattening them. The deposition area is broadly triangular shaped and has an average height of approximately 600 millimetres above the pre-existing height. The deposition area extends along approximately 130 metres of the western boundary and has a width ranging from approximately 10 metres at its northern end to approximately 50 metres at its southern end. Its area is approximately 6,000 square metres.
On 26 February 2016 Authority officers attended at the Land. They verbally issued to Mr Morgan on behalf of Morgan an emergency environment protection order under subsection 93(3) of the Act to cease depositing soils into the Tobalong wetland. The order was issued on the premise that the deposit of the soil onto the deposition area comprised the discharge of a class 2 pollutant (soil, clay, gravel or sand) into waters in contravention of clause 11 of the Policy.
On 4 March 2016 the Authority served on Morgan the Order dated 3 March 2016. The Order defined “the Site” to be the Land. The substantive provisions of the Order were as follows:
PURPOSE OF ORDER:
This order has been issued pursuant to section 93(1)(a)(i) and (ii) of the Environment Protection Act 1993 (“the Act”) for the purposes of securing compliance with:
(i)a mandatory provision of an environment protection policy, being:
·Clause 11(1) of the ‘Environment Protection (Water Quality) Policy 2015’ (“the Policy”)
11 – Class 2 pollutants
A person must not discharge a class 2 pollutant into any waters or a cavity in land.
Mandatory provision: Category B offence
·Soil, clay, gravel or sand are Class 2 pollutans under Schedule 3 of the Policy.
PARTICULARS OF NON-COMPLIANCE:
You, SA Morgan, on or before Friday 26 February 2016:
·       Contravened Clause 11(1) of the Policy by depositing soils, gravel and sands into the Tobalong wetland on the north western side of the Site as shown on the attached Site plan. Appendix.
·       The Tobalong wetland is waters as defined in the Environment Protection Act 1993 and the Policy.
·       EPA officers visited the Site on 26 February 2016 and observed soils, gravel and sands deposited in the Tobalong wetland on the north western side of the land.
REQUIREMENTS OF ORDER:
You, SA Morgan Pty Ltd, are hereby ordered to:
1.   Cease the deposition of soils, gravel and sands into the Tobalong wetland.
Compliance date: Forthwith
2.   Engage a suitably qualified environmental consultant to develop a plan to the satisfaction of the Environment Protection Authority to:
(a)remove the soil, gravel or sands deposited into the Tobalong wetland; and
(b)remediate the affected area of the Tobalong wetland to its original state as far as is reasonably practicable.
3.    Submit to the EPA a copy of the plan to the satisfaction of the EPA.
Compliance date: 24 March 2016
In May 2016 Morgan filed in the Environment Court a notice of appeal against the Order pursuant to section 106(1)(d) of the Act.
In November 2016 a Judge and Commissioner of the Environment Court heard the appeal. Evidence was adduced by both parties. Morgan accepted that a class 2 pollutant was discharged but it contended that the Order, or at least requirements 2 and 3, was invalid on the grounds summarised above. The Authority claimed that the Order was also founded on contravention of the general environmental duty but this contention is not pursued on appeal.
In January 2017 the Environment Court delivered reasons for judgment, allowed the appeal and quashed the order.
The Authority appeals against the judgment of the Environment Court.
The statutory regime
General environmental duty
Subsection 25(1) of the Act imposes a general environmental duty in the following terms:
25—General environmental duty
(1) A person must not undertake an activity that pollutes, or might pollute, the environment unless the person takes all reasonable and practicable measures to prevent or minimise any resulting environmental harm.
Failure to comply with the general environmental duty is a contravention of the Act but not an offence. However, a contravention of subsection 25(1) may be enforced by an environment protection order or when it has caused environmental harm may be the subject of a clean-up order and/or remediation order by the Environment Court. Subsection 25(4) provides:
(4)Failure to comply with the duty under this section does not of itself constitute an offence, but—
(a)compliance with the duty may be enforced by the issuing of an environment protection order; and
(b)a clean-up order or clean-up authorisation may be issued, or an order may be made by the Environment, Resources and Development Court under Part 11, in respect of non-compliance with the duty; and
(c)failure to comply with the duty will be taken to be a contravention of this Act for the purposes of section 135.
Environment protection policies
Part 5 Division 1 empowers the making of environment protection policies (policies) for any purpose directed towards securing the objects of the Act. Section 27(2)(c) provides that a policy may set out requirements, standards, goals and guidelines and may specify that certain requirements or standards (mandatory provisions) are to be enforceable under Division 2.
Part 5 Division 2 addresses contravention of mandatory provisions. Subsection 34(2) creates a basic offence of contravening a mandatory provision. Subsection 34(1) creates a more serious offence of intentionally or recklessly contravening a mandatory provision.
Enforcement
Parts 10 and 11 address enforcement and remediation of the consequences of contraventions of the Act.
There are four[3] methods of enforcement, or requiring remediation of the consequences, of contraventions of the general environmental duty or of a mandatory provision of a policy:
1.issue by the Authority of an environment protection order under Part 10 Division 2;
2.if environmental harm has been caused by the contravention, issue by the Authority of a clean-up order under Part 10 Division 4;
3.application by the Authority to the Environment Court for a prohibitory and where appropriate mandatory injunction in respect of conduct in contravention of the Act or for an order requiring a person to take action required to be taken by the Act under section 104(1)(a) or (b) (Part 11);
4.if environmental harm has been caused by the contravention, application by the Authority to the Environment Court for an order to make good any resulting environmental damage or mitigate further environmental harm under section 104(1)(c) (Part 11).
[3] In addition Part 10A creates a largely standalone regime in respect of site contamination. Section 103J empowers the Authority, if satisfied that site contamination exists and remediation is required, to issue a site remediation order to an appropriate person (usually the occupier or otherwise the owner). This does not depend on there being a contravention of the general environmental duty or of a mandatory provision of a policy.
Environment protection orders
Part 10 Division 2 addresses environment protection orders. Section 93 empowers the Authority to issue an environment protection order amongst other things for the purpose of securing compliance with the general environmental duty or a mandatory provision of a policy or giving effect to a policy. Subsection 93(8) creates an offence of failing to comply with an environment protection order. Section 93 relevantly provides:
93—Environment protection orders
(1)The Authority or another administering agency may issue an environment protection order under this Division—
(a)     for the purpose of securing compliance with
(i)the general environmental duty; or
(ii)mandatory provisions of an environment protection policy; or
(iii)a condition of an environmental authorisation; or
(iv)a condition of a beverage container approval; or
(v)any other requirement imposed by or under this Act; or
(b)    for the purpose of giving effect to an environment protection policy.
(2)     An environment protection order—
(a)     must be in the form of a written notice served on the person to whom the notice is issued;
(b)    must—
(i)specify the person to whom it is issued (whether by name or a description sufficient to identify the person);
(ii)if the order is issued for the purpose of securing compliance with the general environmental duty—state the purpose and specify the environmental harm that it is directed towards preventing or minimising;
(iii)if the order is issued for the purpose of securing compliance with mandatory provisions of an environment protection policy, a condition or any other requirement imposed by or under this Act—state the purpose and specify the mandatory provisions, condition or requirement;
(iv)if the order is issued for the purpose of giving effect to an environment protection policy—state the purpose and specify the policy;
(c)     may impose any requirement reasonably required for the purpose for which the order is issued including one or more of the following:
(i)a requirement that the person discontinue, or not commence, a specified activity indefinitely or for a specified period or until further notice from the Authority or other administering agency;
(ii)a requirement that the person not carry on a specified activity except at specified times or subject to specified conditions;
(iii)a requirement that the person take specified action within a specified period or at specified times or in specified circumstances;
(iv)a requirement that the person prepare, in accordance with specified requirements and to the satisfaction of the Authority or other administering agency, a plan of action to prevent, minimise or control pollution or waste;
(v)a requirement that the person comply with such a plan of action to the satisfaction of the Authority or other administering agency;
(vi)a requirement that the person undertake specified tests or environmental monitoring;
(vii)a requirement that the person furnish to the Authority or other administering agency specified test, monitoring or compliance reports;
(viii)a requirement that the person appoint or engage a person with specified qualifications to prepare a plan or report or undertake tests or monitoring required by the order;
(d)    must state that the person may, within 14 days, appeal to the Environment, Resources and Development Court against the order.
(2aa)Despite any other provisions of this section, an environment protection policy may make provision as to the circumstances in which an environment protection order may be issued or as to the requirements or contents of an order.
…
(8)    A person to whom an environment protection order is issued must comply with the order.
Penalty:
(a)If the order was issued for the purpose of securing compliance with a requirement imposed by or under this Act and a penalty is fixed by this Act for contravention of that requirement—that penalty;
(b)If the order was issued in relation to a domestic activity for the purpose of securing compliance with the general environmental duty—Division 9 fine;
(c)If the order was issued in relation to a domestic activity in circumstances specified in an environment protection policy or for the purpose of giving effect to an environment protection policy—Division 9 fine;
(d)In any other case—Division 6 fine.
Expiation fee:
(a)If the order was issued for the purpose of securing compliance with a requirement imposed by or under this Act and an expiation fee is fixed by this Act for contravention of that requirement—that expiation fee;
(b)If the order was issued in relation to a domestic activity for the purpose of securing compliance with the general environmental duty—Division 9 fee;
(c)If the order was issued in relation to a domestic activity in circumstances specified in an environment protection policy or for the purpose of giving effect to an environment protection policy—Division 9 fee;
(d)    In any other case—Division 6 fee.
…

Section 93A empowers the Authority to issue environment protection orders for the purpose of preventing or minimising environmental harm that may result from a prescribed activity of environmental significance after the activity has ceased. Subsection 93(5) creates an offence of failing to comply with a section 93A environment protection order. Section 93A relevantly provides:
93A—Environment protection orders relating to cessation of activity
(1)The Authority may issue an environment protection order for the purpose of preventing or minimising environmental harm that may result from a prescribed activity of environmental significance after the activity has ceased.
(2)The regulations may—
(a)     limit the circumstances in which an environment protection order may be issued under this section; or
(b)     prescribe circumstances in which an environment protection order issued under this section will be taken to have been revoked.
(3)An environment protection order issued for a purpose described in subsection (1)—
(a)     must be in the form of a written notice served on the owner for the time being of the land on which the activity was undertaken (whether or not the owner was the person who had undertaken the activity);
(b)    must—
(i)specify the person to whom it is issued (whether by name or a description sufficient to identify the person);
(ii)state the purpose for which it is issued and specify the environmental harm that it is directed towards preventing or minimising;
(c)     may impose any requirement of a kind that could be imposed as a condition of an environmental authorisation or that is reasonably required for the purpose for which the order is issued (including a requirement of a kind that could be imposed in an order issued under section 93);
(d)     must state that the person may, within 14 days, appeal to the Environment, Resources and Development Court against the order.
…
(9) This section is in addition to and does not limit the effect of section 93.
(10)This section only applies in relation to a prescribed activity of environmental significance that ceases after the commencement of this section.
An “activity” is defined by section 3 to include storage and possession of a “pollutant”, which is defined very broadly to mean amongst other things a solid, liquid or gas or anything declared by a policy to be a pollutant. A “prescribed activity of environmental significance” is defined by section 3 to mean an activity specified in Schedule 1 which specifies various activities such as chemical storage in specified quantities. It also specifies activities in which substances listed in Part B are produced as or become waste. Listed wastes include substances such as acids and asbestos.
“Environmental harm” is defined broadly by subsection 5(1) to mean:
any harm, or potential harm, to the environment (of whatever degree or duration) and includes—
(a)     an environmental nuisance; and
(b)anything declared by regulation (after consultation under section 5A) or by an environment protection policy to be environmental harm.
“potential harm” is defined by subsection 5(1) to include:
risk of harm and future harm.
and “environmental nuisance” is defined by section 3 to mean:
(a)     any adverse effect on an amenity value of an area that—
(i)    is caused by pollution; and
(ii)     unreasonably interferes with or is likely to interfere unreasonably with the enjoyment of the area by persons occupying a place within, or lawfully resorting to, the area; or
(b)     any unsightly or offensive condition caused by pollution;
Subsection 95(1) empowers the Authority, if the requirements of an environment protection order are not complied with, to take any action required by the order and recover from the person who failed to comply the reasonable costs and expenses incurred in taking that action pursuant to subsection 95(4).
Clean-up orders
Part 10 Division 4 addresses clean-up orders. Section 99 empowers the Authority, if satisfied that a person has caused environmental harm by a contravention of the Act, to issue a clean-up order requiring the person to take specified action within a specified period to make good any resulting environmental damage. Subsection 99(8) creates an offence of failing to comply with a clean-up order. Section 99 relevantly provides:
99—Clean-up orders
(1)    Where the Authority or another administering agency is satisfied that a person has caused environmental harm by a contravention of this Act or a repealed environment law, the Authority or other administering agency may issue a clean-up order to the person requiring the person to take specified action within a specified period to make good any resulting environmental damage.
(2)     A clean-up order—
(a)     must be in the form of a written notice served on the person to whom it is issued;
(b)     must specify the person to whom it is issued (whether by name or a description sufficient to identify the person);
(c)     must specify the contravention alleged to have caused the environmental harm;
(ca)   may include requirements for—
(i)preparing, in accordance with specified requirements and to the satisfaction of the Authority or other administering agency, a plan of action in relation to the environmental harm; and
(iii)complying with such a plan of action to the satisfaction of the Authority or other administering agency;
(j)     may include requirements for action to be taken to prevent or mitigate further environmental harm;
(k)may include requirements for specified testing or environmental monitoring;
(ea)    may include requirements for furnishing to the Authority or other administering agency specified test, monitoring or compliance reports;
(eb)   may include requirements that the person to whom it is issued appoint or engage a person with specified qualifications to prepare a plan or report or undertake tests or monitoring required by the order;
(f)    must state that the person may, within 14 days, appeal to the Environment, Resources and Development Court against the order.
…
(8)     A person to whom a clean-up order is issued must comply with the order.
Penalty:
If the offender is a body corporate—$120 000.
If the offender is a natural person—Division 1 fine.
…
Subsection 102 empowers the Authority, if the requirements of a clean-up order are not complied with, to take any action required by the order and section 103 empowers it to recover from the person who failed to comply the reasonable costs and expenses incurred in taking that action.
Subsection 100 empowers the Authority, if satisfied that a person has caused environmental harm by a contravention of the Act, to issue a clean-up authorisation (whether or not it issues a clean-up order) under which the Authority may take specified action to make good any environmental damage resulting from the contravention and section 103 empowers it to recover from the person whose contravention gave rise to the authorisation the reasonable costs and expenses incurred in taking that action.
Environment Court orders
Part 11 addresses civil remedies that may be granted by the Environment Court upon or in respect of contraventions of the Act.
Section 104(1) empowers the Court to make orders:
1.in the nature of a prohibitory and if appropriate also a mandatory injunction if a person has engaged, is engaging or is proposing to engage in conduct in contravention of the Act (paragraph (a));
2.ordering a person to take action required to be taken by the Act which the person has not taken, is not taking or is proposing not to take (paragraph (b));
3.if environmental harm has been caused by the contravention, ordering the person in breach to make good any resulting environmental damage or mitigate further environmental harm (paragraph (c));
4.ordering the person in breach to pay the reasonable costs and expenses of the Authority in taking action to prevent or mitigate environmental harm or make good environmental damage caused by a contravention (paragraph (d));
5.ordering the person in breach to pay compensation to a person suffering damage or incurring costs as a result of a contravention (paragraph (e));
6.of certain other types (paragraphs (ea) to (g)).
Section 104 relevantly provides:
104—Civil remedies
(1)Applications may be made to the Environment, Resources and Development Court for one or more of the following orders:
(a)     if a person has engaged, is engaging or is proposing to engage in conduct in contravention of this Act—an order restraining the person from engaging in the conduct and, if the Court considers it appropriate to do so, requiring the person to take any specified action;
(b)     if a person has refused or failed, is refusing or failing or is proposing to refuse or fail to take any action required by this Act—an order requiring the person to take that action;
(c)     if a person has caused environmental harm by a contravention of this Act or a repealed environment law—an order requiring the person to take specified action to make good any resulting environmental damage and, if appropriate, to take specified action to prevent or mitigate further environmental harm;
(d)     if the Authority or any other public authority has incurred costs or expenses in taking action to prevent or mitigate environmental harm caused by a contravention of this Act or a repealed environment law, or to make good resulting environmental damage—an order against the person who committed the contravention for payment of the reasonable costs and expenses incurred in taking that action;
(e)     if a person has suffered injury or loss or damage to property as a result of a contravention of this Act, or incurred costs and expenses in taking action to prevent or mitigate such injury, loss or damage—an order against the person who committed the contravention for payment of compensation for the injury, loss or damage, or for payment of the reasonable costs and expenses incurred in taking that action;
(ea)   if a person who has been issued with a site contamination assessment order or site remediation order has incurred costs and expenses in carrying out the requirements of the order or reimbursing the Authority for action taken in pursuance of the order—an order for payment of the whole or a portion of the costs and expenses, as the Court considers appropriate, against 1 or more other persons who caused the site contamination;
(f)     if the Court considers it appropriate to do so, an order against a person who has contravened this Act for payment (for the credit of the Consolidated Account) of an amount in the nature of exemplary damages determined by the Court;
(g)     an order for enforcement of the provisions of an environment performance agreement.
(2)The power of the Court to make an order restraining a person from engaging in conduct of a particular kind may be exercised—
(a)     if the Court is satisfied that the person has engaged in conduct of that kind—whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; or
(b)     if it appears to the Court that, in the event that an order is not made, it is likely that the person will engage in conduct of that kind—whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial harm or damage if the first-mentioned person engages in conduct of that kind.
(3)The power of the Court to make an order requiring a person to take specified action may be exercised—
(a)     if the Court is satisfied that the person has refused or failed to take that action—whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to take that action; or
(b)     if it appears to the Court that, in the event that an order is not made, it is likely that the person will refuse or fail to take that action—whether or not the person has previously refused or failed to take that action and whether or not there is an imminent danger of substantial harm or damage if the first-mentioned person refuses or fails to take that action.
…
(15)Where the Court makes an order requiring the respondent to take any specified action to make good any environmental damage or to prevent or mitigate further environmental harm, the provisions of Division 4 of Part 10 relating to—
(a)registration of a clean-up order in relation to land; and
(b)     the taking of action by the Authority on non-compliance with a clean-up order; and
(c)the recovery of costs and expenses by the Authority,
apply in relation to the Court's order in the same way as in relation to a clean-up order issued by the Authority under that Division.
The Water Policy
Clause 3(1) of the Policy defines “waters” to mean waters to which the Policy applies and refers to clause 8. Clause 8 provides that it applies, subject to certain irrelevant exceptions, in relation to all surface and underground waters. Clause 3(1) defines “underground waters” to mean waters occurring naturally under the ground or introduced to an aquifer or other area under the ground and “surface waters” to mean waters other than underground waters. There is a degree of circularity between the definition in clause 3(1) of “waters” and the operation of clause 8. The net effect of the definitions of “underground waters” and “surface waters” is that between them they necessarily comprise all “waters” but the Policy does not substantively define “waters”. The purpose of distinguishing between underground and surface waters appears to be because Schedule 1 to the Policy makes different substantive provisions in respect of them.
Clause 10 creates an offence in respect of class 1 pollutants and clause 11 creates an offence in respect of class 2 pollutants. Class 2 pollutants are confined to soil, clay, gravel or sand (collectively soil); air conditioning or cooling system wastewater; animal faeces; fertilisers; and green waste pursuant to Schedule 3 of the Policy. Class 1 pollutants include substances such as asbestos; cleaning agents; detergents; hazardous waste; oil, grease or lubricants; and radioactive waste pursuant to Schedule 2 of the Policy.
Clause 11(1) provides:
11—Class 2 pollutants
(1) A person must not discharge a class 2 pollutant into any waters or a cavity in land.
Mandatory provision: Category B offence.
Clause 10(1) provides:
10—Class 1 pollutants
(1) A person must not discharge a class 1 pollutant into any waters or onto land in a place from which it is reasonably likely to enter any waters (including by processes such as seepage or infiltration or carriage by wind, rain, sea spray or stormwater or by the rising of the water table).
Mandatory provision: Category B offence.
Clause 3(2) provides:
For the purposes of this policy, the following applies in relation to the meaning of discharge waste or a pollutant into waters or onto land:
(a)     a person discharges waste or a pollutant into waters or onto land if the person causes or allows the waste or pollutant to be discharged into the waters or onto the land or fails to prevent it from entering the waters or escaping onto the land (including by processes such as seepage or infiltration or carriage by wind, rain, sea spray or stormwater or by the rising of the water table);
(b)     waste or a pollutant will be taken to have been discharged onto land if it is discharged into a quarry or a cavity in land;
(c)     the discharge of waste or a pollutant into a watercourse that is temporarily dry will be regarded as the discharge of the waste or pollutant into waters.
Clause 3(1) provides:
discharge waste or a pollutant includes deposit the waste or pollutant or dispose of the waste or pollutant;
…
watercourse means any of the following (whether or not temporarily wet or temporarily dry):
(a)     a river, creek or other natural watercourse (whether modified or not);
(b)     a lake, wetland, swamp, dam or reservoir or other body of water that collects water or through which water flows;
(c)     the Coorong;
(d)     an artificial channel;
(e)     a public stormwater disposal system,
and includes part of a watercourse;
The reasons of the Environment Court
Morgan contended that the reference to “waters” in clause 11 is to actual surface water present at the relevant time, not merely to a watercourse that is temporarily dry, and that clause 3(2) applies to other substantive provisions of the Policy such as clause 10 but not to clause 11.
The Environment Court rejected this contention, saying:
For its part the appellant submitted that cl 3(2) is merely an aid to the construction of the phrase ‘discharge waste or a pollutant into waters or onto land’. In its written submission the appellant said:
… This phrase, with immaterial differences, is used in Clause 10 … Clause 10 extends further than Clause 11, and catches discharge of pollutants ‘ … onto land in a place from which it is reasonably likely to enter any waters …’. Clause 3(2) naturally extends this to temporarily dry watercourses, including wetlands or swamps. Its evident purpose is to facilitate proof of a Clause 10 offence where the allegation is discharge onto land.
(our emphasis)
We do not agree. We see no reason to read down the ambit of the phrase to apply only to cl 10. The introductory words of cl 3(2) speak of it being ‘for the purposes of this Policy’ and not, as it could have said, ‘for the purposes of cl 10 of the Policy’.
In addition there is no difficulty in ascribing a disjunctive meaning to the word ‘or’ in the phrase.
Furthermore, cl 3(2)(c) is confined in its application to ‘waters’ only, rather than ‘waters and land’ which points, in our view, to an intention to interpret and apply the words in cl 3(2) by giving to them a disjunctive meaning.
Finally, whilst it may on occasions be dangerous to reason by example or indeed by reference to a potential outcome, we consider that the interpretation advanced by the appellant has the potential to lead to a result, which is unlikely to have been contemplated by a Policy designed to protect the State’s ‘waters’, namely one which ‘permitted’ the discharge of pollutants at certain times of the year when the land was dry but not at other times when the same area became inundated.[4]
[4] Citations omitted.
The Court accepted Morgan’s second contention that the Order was ultra vires section 93 of the Act because the Order was incapable of being issued “for the purpose of securing compliance with” clause 11 within the meaning of section 93(1)(a)(ii). The Court said:
However, Requirements such as those articulated as numbers 2 and 3 of the EPO are not reasonably required to prevent a person from discharging a pollutant. That activity has already taken place.
Obviously if cl 11 imposed a positive obligation, on a person who had polluted, to take measures to clean-up, Requirements 2 and 3 would have work to do. However, where a Policy is silent as to such activity we are not prepared to imply such an obligation.
In so saying, we do not overlook the provisions of s 93(2)(c)(iii) which enable an EPO to require a person to take specified action. However, we do not apprehend Requirements 2 and 3 to be specified action in order to secure compliance with cl 11.
In a similar way, s 93(2)(c)(iv) and (v) are designed to require action to prevent, minimise or control pollution. We would not regard such provisions as authorising Requirements to order a remediation plan when the provisions of cl 11 are silent on this issue.
The Court accepted Morgan’s third contention that requirements 2 and 3 of the Order lack certainty and cannot therefore be reasonably regarded as necessary to secure compliance with clause 11. The Court said:
In our view, Requirements which dictate, without more, that a person is to simply ‘hire a consultant’ and ‘prepare a draft plan’ for submission to the EPA, lack the basic requirements for certainty or specificity.
If, as we are given to understand, the EPO was directed at having the soil removed and the polygon area cleaned-up, the terms of the Order are entirely uncertain. It is not made clear as to when such work is to be done, or how much of the soil is to be removed. Nor is there any specification as to whether reeds need to be replanted.
…
In a similar way a Requirement (carrying a criminal sanction for non-compliance) to submit a remediation plan, without reference to even the barest detail as to what the plan should contain, is unsatisfactory.
In summary, we regard the Requirements in 2 and 3 of the EPO as lacking in certainty. As such, on their face, it cannot be said that they are reasonably regarded as necessary to secure compliance with the EPO.
Discharge into any waters: clause 11 of the Policy

It is convenient first to address Morgan’s notice of contention which logically arises before consideration of the Authority’s grounds of appeal.
On its notice of contention, Morgan reiterates its submission that the reference to “waters” in clause 11 is to surface water present at the relevant time, not merely to a watercourse that is temporarily dry. Morgan submits that clause 3(2) only applies to substantive provisions of the Act when those provisions use the exact terminology of the bold italicised phrase “discharge waste or a pollutant into waters or onto land”, clause 11 does not do so because it refers to “waters or a cavity in land” rather than “waters or onto land” and hence clause 3(2) does not apply to clause 11. This issue turns on the construction of the Policy and in particular clauses 3(2) and 11.
Starting with the text of clause 3(2), it provides:
For the purposes of this policy, the following applies in relation to the meaning of discharge waste or a pollutant into waters or onto land:
(a)a person discharges waste or a pollutant into waters or onto land if the person causes or allows the waste or pollutant to be discharged into the waters or onto the land or fails to prevent it from entering the waters or escaping onto the land (including by processes such as seepage or infiltration or carriage by wind, rain, sea spray or stormwater or by the rising of the water table);
(b)waste or a pollutant will be taken to have been discharged onto land if it is discharged into a quarry or a cavity in land;
(c)the discharge of waste or a pollutant into a watercourse that is temporarily dry will be regarded as the discharge of the waste or pollutant into waters.
The natural reading of this clause is to read the nouns in the composite phrase disjunctively. That is, the clause contemplates that the substantive provisions of the Policy may refer to discharging “waste” or discharging “a pollutant” or “discharging “waste or a pollutant” and paragraphs (a), (b) and (c) apply to all alternatives. Similarly, the clause contemplates that the substantive provisions of the Policy may refer to discharging “into waters” or discharging “onto land” or discharging “into waters or onto land” and paragraph (c) applies to the first alternative, paragraph (b) applies to the second alternative and paragraph (a) applies to the third alternative. This reading is confirmed by the structure of clause 3(2) and the fact that paragraphs (b) and (c) are capable of applying only to land and waters respectively and not to both. Moreover, the chapeau does not purport to define the bold italicised phrase. Instead it signals principles which must be applied in determining whether there has been a contravention of a clause of the policy, namely that:
(a)waste or pollution may be discharged by both omission and commission;
(b)a quarry and a cavity in land are both to be treated as land, and
(c)a temporarily dry watercourse is still a watercourse.
The context of clause 3(2) strongly reinforces this reading. Clause 10, which Morgan submits and acknowledges is one of the substantive provisions to which clause 3(2) applies, does not use the exact terminology of the phrase “discharge waste or a pollutant into waters or onto land”: it not only makes no reference to waste but it also confines pollutants to class 1 pollutants in the same way as clause 11 confines land to cavities in land.
Other substantive clauses also do not use the exact terminology of the phrase “discharge waste or a pollutant into waters or onto land”. For example, clause 12 creates an offence of discharging a pollutant listed in a declaration into waters described or delineated in the declaration. It does not refer to land at all, nor does it refer to waste. It confines both pollutants and waters to those identified in the declaration. Similarly, clauses 14 to 18 refer to discharge of waste but not to pollutants. On the construction advanced by Morgan, clause 3(2) would not apply to any substantive provisions of the Policy.
The evident purpose of clause 3(2)(c) is to ensure that, whenever a substantive provision creates an offence or otherwise refers to discharging waste or discharging a pollutant or discharging a waste or pollutant into waters, the reference to “waters” encompasses a watercourse that is temporarily dry. If this is not the effect of clause 3(2)(c), it would result in the situation that a person who discharges a class 2 pollutant into a running creek commits an offence but not a person who does so the minute before it starts running.
On the proper construction of the Policy, a person who discharges a class 2 pollutant into a watercourse that is temporarily dry commits an offence against clause 11. The Environment Court was correct in its construction of the Policy.
Morgan does not contend on appeal that it did not discharge a class 2 pollutant into a watercourse that was temporarily dry. It follows that Morgan contravened clause 11.
Securing compliance: section 93 of the Act
The Environment Court held that the Order was ultra vires section 93 of the Act because the contravention of clause 11 of the Policy was an historical act as at 3 March 2016 and the Order was therefore incapable of being “reasonably required” “to secure compliance with” clause 11 within the meaning of section 93.
The Authority advances three contentions why the Order was reasonably required for the purpose of securing compliance with clause 11. The first involves the construction of clause 11 and the second and third involve the construction of section 93.
The Authority’s first contention is that the concept of “discharge” of a pollutant into waters in clause 11 encompasses both an initial act of deposit and leaving the pollutant in place such that a person can commit a continuing offence by depositing and leaving the pollutant in place.
It is to be observed that the Order alleged a contravention of clause 11 on or before 26 February 2016 by depositing soil into the Tobalong wetland. It did not allege any ongoing contravention by leaving soil in the wetland. It is arguable that the test of what is “reasonably required” “to secure compliance with” clause 11 is to be applied to the contravention alleged in the Order. However, leaving aside this issue, the Authority’s underlying contention about the nature of the offence created by clause 11(1) cannot be sustained.
Clause 11(1) provides that a person must not discharge a class 2 pollutant into any waters or cavity in land. The verb “discharge” is not defined by the Policy other than clause 3(1) providing that it includes “deposit” or “disposal”. These concepts connote an act that becomes complete as opposed to a mere state of affairs. It may be assumed that the act must be more than momentary, ie if a person deposits a class 2 pollutant into a cavity in land without it becoming mixed with the land and then immediately retrieves it, there would not be a “discharge” within the meaning of the clause, but even in such a case the act is committed within a very short time of the deposit. There is nothing in the text, context or evident purpose of clause 11 that creates a continuing offence of leaving in place a class 2 pollutant.
In Vaughan v Biggs[5], subsection 1(1) of the Litter Act 1958 (UK) created an offence if a person throws down, drops or otherwise deposits and leaves litter in the open air without consent. The English Court of Appeal held that this did not create a continuing offence. Lord Parker CJ (with whom Donovan and Davies JJ agreed) said:
Observe that that there are two ingredients there, the throwing down, dropping or otherwise depositing and leaving. It is quite clear that not only the depositing but also the leaving is necessary, because it was not intended that an offence should be committed if somebody deposited litter and immediately cleared it out. Accordingly, though the act constituting the offence consists of throwing down, dropping or otherwise depositing, it is only an offence if it is not removed. The offence is not committed unless both of these things, the depositing and the leaving, occur. Depositing is an act fixed in point of time and not a continuing matter, and, accordingly, I am quite satisfied that this cannot be treated as a continuing offence …[6]
[5] [1960] 2 All ER 473.
[6] At 474.
In Craddock v Green[7], subsection 139(1) of the Highways Act 1980 (UK) created an offence if a builders skip is deposited on the highway without permission. The Queen’s Bench Division held that a builder who initially placed a skip on the highway with permission subject to a condition that it not be left after 30 November 1981 committed an offence by leaving it on the highway in December 1981. The decision by the Justices that the offence encompassed permitting the skip to remain on the highway without permission was upheld on appeal. This decision is consistent with the decision of the Court of Appeal in Vaughan v Biggs because there was a constructive deposit of the skip on 1 December 1981 given the condition to which the permission was subject.
[7] [1983] RTR 479.
The Authority does not contend that there was any actual continuing discharge after the initial deposition in a way that engaged the principle in clause 3(2)(a) of the Policy.
The Authority’s first contention must be rejected.
The Authority’s second contention is that ordering removal of the deposited soil was reasonably required for the purpose of securing compliance with clause 11 because making such an order would act as a general deterrent to other persons who might otherwise contravene clause 11 and as a specific deterrent to Morgan from committing a future contravention.
Section 93(1)(a)(ii) relevantly provides:
(1)The Authority or another administering agency may issue an environment protection order under this Division—
(a) for the purpose of securing compliance with—
(ii)mandatory provisions of an environment protection policy;
The text, context and evident purpose of this provision all indicate that the order is to be directed to securing immediate compliance with the mandatory provision in question and not to remote matters such as general and specific deterrence. The Authority’s second contention must be rejected.
The Authority’s third contention is that ordering removal of the deposited soil is curative of the immediate mischief that the prohibition is intended to prevent and may be regarded as being reasonably required for the purpose of securing compliance with the mandatory provision contained in clause 11. The Authority points to the fact that subsection 93(2) contemplates that an order may impose a requirement to take specified action or a requirement that a person prepare and comply with a plan of action to prevent, minimise or control pollution.
Subsection 93(2)(c) provides:
An environment protection order—
(b)     may impose any requirement reasonably required for the purpose for which the order is issued including one or more of the following:
(i)     a requirement that the person discontinue, or not commence, a specified activity indefinitely or for a specified period or until further notice from the Authority or other administering agency;
(ii)    a requirement that the person not carry on a specified activity except at specified times or subject to specified conditions;
(iii)   a requirement that the person take specified action within a specified period or at specified times or in specified circumstances;
(iv)   a requirement that the person prepare, in accordance with specified requirements and to the satisfaction of the Authority or other administering agency, a plan of action to prevent, minimise or control pollution or waste;
(v)    a requirement that the person comply with such a plan of action to the satisfaction of the Authority or other administering agency;
(vi)   a requirement that the person undertake specified tests or environmental monitoring;
(vii)     a requirement that the person furnish to the Authority or other administering agency specified test, monitoring or compliance reports;
(viii)   a requirement that the person appoint or engage a person with specified qualifications to prepare a plan or report or undertake tests or monitoring required by the order;
Section 93 is capable of applying to a host of different mandatory provisions of environment protection policies as well as a variety of circumstances involving breaches of the general environmental duty or other requirements imposed by the Act referred to in subsection 93(1). In cases in which the relevant provision prohibits action (a negative provision), the contravention may be a specific historical act or it may be a course of continuous conduct. In cases in which the relevant provision requires positive action to be taken (a positive provision), the contravention will be continuous unless and until the required action is taken.
In some cases conduct may be prohibited in absolute terms and the conduct will be ongoing (such as discharge by a factory of prohibited substances into the air) and it will be apposite that an order require discontinuance of the activity as contemplated by section 93(2)(c)(i). In other cases conduct may be prohibited only in certain circumstances (such as discharge by a factory of more than specified quantities of substances into the air) and it will be apposite that an order require the activity to be confined to specified times or circumstances as contemplated by section 93(2)(c)(ii).
In some cases a negative provision may be breached by continuing conduct and it is apposite when the prohibition is absolute to require the preparation of a plan to prevent pollution or waste and when the prohibition is relative (such as the general environmental duty) to require preparation of a plan to minimise or control waste. The mere fact that paragraphs (iv) and (v) are included in section 93(2)(c) does not indicate that section 93 empowers an order to be made in respect of a negative provision in respect of which the contravening conduct is historical.
In other cases a positive provision may be breached on a continuing basis and it will be apposite that an order require that a person take action as contemplated by section 93(2)(c)(iii). The mere fact that paragraph (iii) is included in subsection 93(2) does not indicate that section 93 empowers an order to be made in respect of a negative provision in respect of contravening conduct that is historical.
In the case of an historical act comprising contravention of a negative provision (such as in the present case), no requirement imposed by the Authority under section 93 can be capable of securing compliance with the mandatory provision because the non-compliance has already occurred and is complete.
The text, context and evident purpose of subsection 93(1) all indicate that the environment protection order is to be directed to securing immediate compliance with the mandatory provision in question and not to matters such as remediation.
This construction is reinforced by the context of section 93 within the Act. The Act contains other provisions empowering the ordering of remediation, namely section 99 empowering the Authority to make clean-up orders and section 104 empowering the Environment Court to make rectification orders. Given the existence of these express powers, there is no call to strain the construction of section 93 to impute a power to make such orders into section 93.
The remediation powers conferred by sections 99 and 104 are conditioned on there being environmental damage or environmental harm. It is an unlikely intention to impute to the legislature that the Authority can outflank these conditions by utilising section 93 to make a remediation order regardless of whether these conditions are satisfied.
In contrast to section 93, section 93A confers power on the Authority to make an environment protection order that requires rectification but this is conditioned on preventing or minimising environmental harm that may result from a prescribed activity of environmental significance after the activity has ceased. The enactment of section 93A proceeds on the basis that section 93 does not already confer such powers.
The Authority’s third contention must be rejected.
On the proper construction of section 93, requirements 2 and 3 of the Order were ultra vires because they were incapable of being “reasonably required” “to secure compliance with” clause 11 within the meaning of section 93. The Environment Court was correct in its construction of section 93 in this respect.
Lacking in certainty
The Authority contends that the Environment Court erred in holding that requirements 2 and 3 were lacking in certainty and could not therefore be reasonably required for the purpose of securing compliance with clause 11.
Given my conclusion on the second issue, it is not strictly necessary to determine this third issue. However I address it because it was fully argued by the parties on appeal. I address it on the assumption that the Authority had power to require remediation action under section 93.
Section 93(2)(c) provides that an environment protection order may impose any requirement reasonably required for the purpose for which the order is issued including a requirement that the person prepare, in accordance with specified requirements and to the satisfaction of the Authority, a plan of action to prevent, minimise or control pollution or waste and comply with such a plan of action to the satisfaction of the Authority.
Section 99(2)(ca) provides that a clean-up order issued when the Authority is satisfied that a person has caused environmental harm by a contravention of the Act may include requirements for preparing, in accordance with specified requirements and to the satisfaction of the Authority, a plan of action in relation to the environmental harm and compliance with such a plan of action to the satisfaction of the Authority.
These provisions recognise that it may be in the interests of the State to assign responsibility for preparing a plan of action to address pollution to the person who caused the pollution, to provide for approval by the Authority of the plan of action and to require the person to implement the plan of action. These provisions also recognise that a degree of flexibility and dynamism will often be required when embarking on such a process. A person who submits to the Authority a plan of action prepared in good faith will not be in breach of the obligation imposed but if the Authority in good faith is not satisfied with the plan of action the person can be required to modify it until the Authority is so satisfied.
When such a process is adopted, ex hypothesis the Authority will not identify in the environment protection order the precise means to be adopted in the plan of action to achieve the specified purpose or outcome. However, the Authority will need to specify its requirements in sufficient terms to enable the person to prepare the plan of action. This is recognised in the requirement that the person prepare the plan of action “in accordance with specified requirements of the Authority”.
The Order specifies the required outcomes of the plan required to be prepared, namely:
(a) removal of the soil that had been deposited; and
(b)remediation of the affected area to its original state as far as reasonably practicable.
As to paragraph (a), it is a matter for Morgan to identify in the proposed plan how the soil is to be removed. Paragraph (a) imposes a requirement that is to be understood in a practical sense. Contrary to the submission made by Morgan on appeal and unlike the bargain struck between Shylock and Antonio as construed by Portia, Morgan is not required to remove every grain of soil and nothing but the soil that had been deposited: these are matters to be addressed by the proposed plan.
Similarly, paragraph (b) imposes a requirement to remediate the affected area to its original state that is to be understood in a practical sense. It is a matter for Morgan to identify how it proposes to remediate the affected area.

The Environment Court said that it is not made clear when such work is to be done, how much of the soil is to be removed, or any specification as to whether reeds need to be replanted. These are each matters to be addressed by Morgan in the plan and are then matters to be considered by the Authority in deciding whether to approve the plan. They are not required to be specified by the Authority in the environment protection order.
The Environment Court erred in concluding that requirements 2 and 3 were lacking in certainty and cannot be reasonably regarded as being for the purpose of securing compliance with clause 11. They sufficiently specified the requirements that the Order complies with section 93 on the assumption that the Authority had power under section 93 to require a remediation plan of action.
Conclusion
I would dismiss the appeal.

[2017] SASCFC 164

8 December 2017

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