Environment Protection Authority v SA Morgan Pty Ltd - [2017] SASCFC 164

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.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] SASCFC 164
Decision Date: 8 December 2017

CaseChat Overview and Summary

The Environment Protection Authority (the Authority) appealed to the Supreme Court of South Australia against a decision of the Environment Court, which had quashed an emergency environment protection order issued to SA Morgan Pty Ltd (Morgan). Morgan operated an earthmoving business and had deposited soil onto land adjacent to the River Murray, which was part of the Tobalong wetland. The Authority contended that the Environment Court erred in finding that certain requirements of the order were *ultra vires* section 93 of the relevant Act. Morgan cross-appealed, arguing the Environment Court erred in rejecting its first contention.

The central legal issue before the Supreme Court was whether the emergency environment protection order, specifically requirements 2 and 3, were validly made under section 93 of the Act. The Authority argued that these requirements were sufficiently certain and served the purpose of securing compliance with clause 11 of the Policy, which prohibited the discharge of certain pollutants into waters. Morgan, conversely, contended that the order was invalid on multiple grounds, including a lack of certainty in its requirements.

The Supreme Court found that the Environment Court had erred in its conclusion regarding the certainty of requirements 2 and 3. The Court reasoned that these requirements, when read in context, sufficiently specified the actions Morgan was required to take to comply with the order. The Court proceeded on the assumption that the Authority possessed the power under section 93 to mandate a remediation plan of action as part of such an order.

The appeal was dismissed. The Supreme Court concluded that the requirements of the emergency environment protection order were not lacking in certainty and could reasonably be regarded as being for the purpose of securing compliance with clause 11 of the Policy.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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