Environment Protection Authority v SA Morgan Pty Ltd

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.