Geelong Community for Good Life Inc v Environment Protection Authority
[2008] VSC 185
•3 June 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 9090 of 2006
BETWEEN
| GEELONG COMMUNITY FOR GOOD LIFE INC | Plaintiff |
| and | |
| ENVIRONMENT PROTECTION AUTHORITY | First Defendant |
| and | |
| SHELL REFINING AUSTRALIA PTY LTD | Second Defendant |
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JUDGE: | CAVANOUGH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28-30 April 2008, 1 May 2008 | |
DATE OF JUDGMENT: | 3 June 2008 | |
CASE MAY BE CITED AS: | Geelong Community for Good Life v EPA | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 185 | |
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ADMINISTRATIVE LAW – Natural justice – Procedural fairness – Certiorari – Proprietor of oil refinery applies to Environment Protection Authority to amend conditions of its licence to emit waste – Whether an incorporated environment group was entitled to be heard against the application to amend – Whether group had a legitimate expectation based on an established course of conduct or a specific assurance – Held that legitimate expectation doctrine not applicable in law or on the facts – Application for certiorari to quash licence amendments refused – Environment Protection Act 1970 ss 1A, 1L, 18, 19, 19A, 20, 20A, 20C, 22 - Administrative Law Act 1978 s 3.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F McLeod SC with Mr R A R Lewis and Ms M Foley | Environment Defender’s Office |
| For the First Defendant | Mr P Willee QC with Mr A F Lindeman | Environment Protection Authority |
| For the Second Defendant | Mr J Gobbo QC with Mr J Pizer | Blake Dawson |
HIS HONOUR:
The parties
The plaintiff is a voluntary association incorporated under the Associations Incorporation Act 1981. It was formed in November 2003. It describes itself as a “volunteer community group whose primary goal is to represent community concerns regarding negative impacts on human health and the environment arising from industrial emissions within the Geelong Region”.[1]
[1]Affidavit of Suzanne McLean dated 6 October 2006, para 5.
The first defendant is the Environment Protection Authority (“EPA”) established by the Environment Protection Act 1970 (“the Act”).
The second defendant, Shell Refining (Australia) Pty Ltd (“Shell”), operates an oil refinery on the shores of Corio Bay in Corio. The refinery processes about six million tonnes of crude oil and other feedstock each year. It holds a licence to discharge waste to the environment, issued by the EPA under s 20 of the Act.
The proceeding
This is an application by the plaintiff for judicial review under s 3 of the Administrative Law Act 1978 of a decision made by the EPA on 30 June 2006 to amend in various respects the conditions of Shell’s licence to discharge waste to the environment. The EPA made the amendments under s 20A(4) of the Act, on Shell’s application under s 20A(1) of the Act. The plaintiff had been informed of Shell’s application and had made representations against it.
The plaintiff relies principally on a single ground of review, namely that the plaintiff was denied natural justice, in the sense of a fair hearing, in connection with the making of the decision. Nearly all of the oral argument in the case was taken up with that ground. In its written submissions, the plaintiff also included a ground that the amendments were ultra vires (beyond power) as being contrary to the Act and contrary to certain delegated legislation, but that ground was supported only faintly in oral argument. I will come back to it in due course.
The evidence
The parties filed a very substantial quantity of affidavit material, some of it of doubtful admissibility. While there were some concerns expressed about commercial confidentiality in relation to particular exhibits, no objections to admissibility were taken. No deponent was required for cross-examination. By the end of the hearing, in relation to those aspects of the case which I regard as determinative, there were no significant factual issues.
Threshold question: standing
Both the EPA and Shell deny that the plaintiff has standing to bring this proceeding. Relying mainly on Onesteel Manufacturing Pty Ltd v Whyalla Red Dust Action Group Inc[2] (“Red Dust”) they submit that the plaintiff is not a “person affected” by the decision within the meaning of the Administrative Law Act 1978. It is unnecessary to determine this question because I have concluded that neither ground of review has been made out. However I note that Red Dust was not a natural justice case and I record my provisional view that, had the plaintiff been entitled to, and been denied, natural justice, it would have had standing to seek a remedy at common law and under statutory regimes corresponding in purpose with the Administrative Law Act 1978[3]; and that I would not lightly have been persuaded that standing would not have been available to it under the Victorian Act.
[2][2006] SASC 114.
[3]The test for standing and the threshold test for natural justice are distinct: see Botany Bay City Council v Minister for Transport and Regional Development (1996) 137 ALR 281 at 309-311; Bridgetown-Greenbushes Friends of the Forest Inc v Executive Director of the Department of Conservation and Land Management (1997) 94 LGERA 380 at 386; Griffith University v Tang (2005) 221 CLR 99 at 117-118 [45]; Aronson, Dyer and Grove, Judicial Review of Administrative Action, 3rd edition, 2004 at 392-393 esp fn. 221.
The natural justice ground: the parties’ basic positions
The plaintiff does not point to any express provision of the Act entitling it to a hearing by the EPA prior to the making of the decision complained of. Rather, the plaintiff asserts that in all the circumstances the EPA was obliged to give it a fair hearing on the matter under the principles of natural justice or procedural fairness, and in particular on the basis that it had a “legitimate expectation” of being given such a hearing.[4] It claims that it was denied a fair hearing in that it was not given the full details of Shell’s application for amendments to the licence, but only a brief and inadequate summary of the application.
[4]Citing FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 360 per Mason J; Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 at 401 per Lord Fraser of Tullybelton; Kioa v West (1985) 159 CLR 550 at 585 per Mason J; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 20 per Mason CJ; Annetts v McCann (1990) 170 CLR 596 at 598 per Mason CJ, Deane and McHugh JJ; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 140 per McHugh J.
The EPA in effect accepts that the plaintiff had some kind of “legitimate expectation” of being heard on the matter, but contends that the hearing it was given was sufficient.
Shell denies that the plaintiff had any relevant “legitimate expectation” or any entitlement to be heard at all. In the alternative, Shell too says that the hearing given was sufficient.
The question whether the plaintiff had an entitlement to be heard by the EPA is not foreclosed by the EPA’s concession. The question is one of legal principle[5] and Shell, the holder of the licence the conditions of which are under attack, is at liberty to support the validity of the decision under review by relying on matters of fact or law tending to show that the plaintiff had no entitlement to be heard, or alternatively some form of entitlement different from whatever might be urged on behalf of the EPA.
[5]Attorney-General (NSW) v Quin (1990) 170 CLR 1 at [30] per Mason CJ.
Short answer to the natural justice ground
In my view, the rules of natural justice or procedural fairness were not applicable in favour of the plaintiff in respect of the decision of the EPA on Shell’s application to amend its licence. At least in the circumstances of this case, the doctrine of “legitimate expectation”, on which the plaintiff solely relies, did not impose a duty on the EPA to act fairly towards the plaintiff in that regard.
The inapplicability of the doctrine of “legitimate expectation” in this case as a matter of legal principle
Mason CJ, Deane and McHugh JJ said in Annetts v McCann[6]:
“It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment …”
[6](1990) 170 CLR 596 at 598.
Earlier, in Kioa v West[7], Mason J said, in relation to decisions made under statute, that:
“the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute.”
In Kioa, and in several other cases, Brennan J went further, saying that the threshold question of whether the principles apply is always exclusively a question of discerning the statutory intent; that is to say, for Brennan J, the exclusive source of the duty was the statute, not the common law.[8] On the other hand, Brennan J gave a very wide meaning to the concept of “interests”, holding that “any interest possessed by an individual” should attract protection.[9] For the purposes of exercises of statutory power where individual interests (as such) are apt to be affected or are actually taken into account by the decision-maker, his Honour equated “interest” with the interest which gives standing at common law to seek a public law remedy.[10]
[7](1985) 159 CLR 550 at 584.
[8]See Aronson, Dyer and Grove, op. cit, 106 and see the cases mentioned in footnote 114 on that page.
[9]Kioa v West (1985) 159 CLR 550 at 619.
[10]See Kioa v West (1985) 159 CLR 550 at 621-622. Compare Aronson et al, op cit, 392.
A related aspect of the Brennan view is that in relation to decisions made under statute the doctrine of “legitimate expectation” can have no part to play in determining the application, as distinct from the content in the particular case, of the principles of procedural fairness.[11] In Re Minister for Immigration and Multicultural and Indigenous Affairs v Lam[12], McHugh and Gummow JJ said that a statement to that effect by Brennan J in Attorney-General (NSW) v Quin[13] “should be accepted as representing the law of Australia”. Indeed, in Lam several members of the High Court expressed doubt as to whether the doctrine of legitimate expectation had any useful future at all given the very strong presumption that statutory decision-makers must comply with the rules of procedural fairness where individual interests are at stake.[14] However, it is arguable that Brennan J’s proposition has not yet been confirmed as the law of Australia by a binding majority of judges of the High Court[15], and in the present case neither of the defendants advanced the proposition. Further, Brennan J’s notion of “interests” may be wider than that conveyed by the same expression as it appears in the passage from Annetts v McCann quoted above. So I have not rejected the plaintiff’s natural justice point simply by applying the Brennan view.
[11]Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 39.
[12](2003) 214 CLR 1 at 27-28 [81]-[83]. But compare at 12 [34] per Gleeson CJ.
[13](1990) 170 CLR 1 at 39.
[14]See Aronson et al, op. cit, 395. The relevant observations in Lam were recently collected in Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175 at [271]. That the presumption is confined to cases involving individual interests is recognised in Cazaly at [270], citing Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 651-652 per Deane J. And see further below.
[15]Aronson et al. op. cit. at 107-108, 395.
On the other hand, the plaintiff does not claim that the EPA’s decision destroyed, defeated or prejudiced its “rights” or “interests” within the meaning of the passage from Annetts v McCann. As I have indicated, the plaintiff restricts itself to a claim that it had a relevant “legitimate expectation” that was defeated by the EPA. Various notions, and uses, of “legitimate expectation” in administrative law were discussed by Mason J in Attorney-General (NSW) v Quin[16], a case described by the plaintiff’s counsel as its best case. Mason CJ said:
“Notwithstanding the criticism that has been levelled at the concept of “legitimate expectation” since it was first introduced by Lord Denning M.R. in Schmidt v. Secretary of State for Home Affairs (1969) 2 Ch 149, as a foundation for attracting a duty of procedural fairness, the concept has been accepted and adopted by this Court as denoting expectations which go beyond enforceable legal rights: Salemi v. MacKellar (No. 2) [1977] HCA 26; (1977) 137 CLR 396; Reg. v. MacKellar; Ex parte Ratu [1977] HCA 35; (1977) 137 CLR 461; Heatley v. Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487; F.A.I. Insurances Ltd. v. Winneke [1982] HCA 26; (1982) 151 CLR 342; see also Kioa v. West [1985] HCA 81; (1985) 159 CLR 550, at pp 563, 582-583, but cf. pp 616-618. The same development has taken place in the Privy Council (Ng Yuen Shiu, [1983] 2 AC 629 at p 636) and in the House of Lords: O’Reilly v. Mackman [1983] UKHL 1; (1983) 2 AC 237, at p 275; In re Findlay (1985) AC 318; Council of Civil Service Unions v. Minister for the Civil Service [1983] UKHL 6; (1985) AC 374.
30. It is the presence of a legitimate expectation which conditions the existence of a claimant’s right to procedural fairness and the corresponding duty of the decision-maker to observe procedural fairness in the treatment of the claimant’s case. The content of that duty is dependent upon the circumstances of the particular case, but its existence is determined by reference to legal principle. So, a legitimate expectation may be created by the giving of assurances (Salemi, at p 440; Kioa, at p 583; C.C.S.U., at p 401), the existence of a regular practice (Heatley, at pp 508-509; Kioa, at p 583; C.C.S.U., at p 401), the consequences of denial of the benefit to which the expectation relates (F.A.I. v. Winneke; Kioa, at p 583) or the satisfaction of statutory conditions (In re H.K. (An Infant) (1967) 2 QB 617). The list is not exhaustive, but provides indications of the kinds of factors which a court will take into account in deciding whether or not an expectation is legitimate.
31. The duty to accord procedural fairness in connection with a claimant’s legitimate expectation is sometimes said to be referable to a general duty of good administration: Ng Yuen Shiu, at p 638; C.C.S.U., at p 401; In re H.K., at p 630. But the content of that broader duty is still defined by reference to the claimant’s legitimate expectation. In the absence of such an expectation, there is no corresponding duty to accord fairness. For that reason, although in one sense it means nothing to say that a person entitled to fair procedures or good administration has a legitimate expectation of being accorded such treatment, it is still necessary to identify a relevant legitimate expectation, and that legitimate expectation may consist of an expectation of a procedural right, advantage or opportunity: Kioa, at p 583; C.C.S.U., at p 408. The procedural right which forms the subject-matter of the legitimate expectation will not necessarily be the same as the procedure which procedural fairness or good administration, the duty to accord which is enlivened by the expectation, will demand. For example, in C.C.S.U., the expectation of consultation with management through trade unions, which but for issues of national security would have been a legitimate expectation, may not necessarily have sufficed to require that the procedures of consultation be maintained; procedural fairness or good administration may simply have demanded that there be a hearing before the practice of consultation was abandoned. In other cases, the procedural benefit which is legitimately expected will in fact be that which fairness or good administration demands should be accorded. So, in Ng Yuen Shiu, the claimant expected, and was entitled to, the procedure which had been publicly promised: at pp 637, 638.
32. Although a legitimate expectation may take the form of an expectation of a substantive right, privilege or benefit or of a procedural right, advantage or opportunity, it is helpful to avoid confusion between the content of the expectation and the resulting right to procedural fairness. Perhaps in pursuit of clarity of expression, courts have referred to a legitimate expectation that some benefit will not be denied or taken away without an opportunity of being heard; see Aickin J.’s discussion of the concept of “reasonable” expectation in Heatley, at p 508. In truth, the legitimate expectation in such cases is often simply that the benefit will not be denied or taken away. The “expectation” that the claimant will be heard ordinarily flows of itself from the primary legitimate expectation.”
[16](1990) 170 CLR 1 at 20-21.
In the language of Mason J, the plaintiff claims that it had a legitimate expectation of “a procedural right, advantage or opportunity”[17], as distinct from an expectation of “a substantive right, privilege or benefit”.[18] In particular, the plaintiff says that it had “a legitimate expectation that it would be consulted and given the opportunity to make an informed submission to the EPA before any decision to amend the licence was made by the EPA”.[19] In its written submissions, the plaintiff identified as the source of that legitimate expectation a range of facts to which I will in due course refer. In combination, those facts fell to be characterised principally (the submissions seemed to assert) as amounting to or giving rise to “a regular practice which the person affected can reasonably expect to continue”.[20] The plaintiff’s written submissions refer to a general statement on the EPA website concerning public consultation (in connection with “EPA Works Approvals”), but it was not asserted in the written submissions that the EPA had given any specific assurance to the plaintiff as to the procedure the EPA would follow in relation to, in particular, Shell’s application for amendments to its licence. However, during oral argument the plaintiff suggested, I think, that a certain notice issued by the EPA to Shell under s 22 of the Act requiring Shell to provide a report to the EPA on its community consultation in connection with the proposed licence amendments may have involved something in the nature of an “assurance” of a hearing for the purposes of the legitimate expectations doctrine.[21] I will return to those matters. The plaintiff also relied on certain acknowledgments contained in written submissions dated 12 February 2007 filed on behalf of the EPA at an earlier stage of these proceedings, to which I will also return.
[17]Quin, [31].
[18]Ibid, [32].
[19]Written submissions, [26]. See also at [29].
[20]Ibid, [25], citing Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 at 401. See also Quin at [30]. And see para [35] of the written submissions.
[21]Compare Carey v Field (2002) 122 FCR 538 at 556-557 [63]-[65].
The doctrine of legitimate expectation reached its high point in Australia in the majority judgments in Minster for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. In Teoh it was held that Australia’s ratification of the United Nations Convention on the Rights of the Child gave rise to a legitimate expectation that the Minister would act in conformity with it and would treat the best interests of the applicant’s children as a primary consideration (regardless of whether the applicant or the children had ever heard of the Convention); that the Minister had not done so; and that the applicant had been denied procedural fairness in that he had not been afforded the opportunity to present a case against a decision inconsistent with the legitimate expectation. McHugh J dissented.
Both Quin and Teoh concerned expectations (based on published or apparent governmental policy) as to the substantive factors the administrative decision-maker would or would not take into account in making the decision, as distinct from expectations (based on assurances or established practice or the like) as to procedures that would be adopted in the course of the decision-making process. (In either situation the maximum benefit obtainable is a right to a hearing, not a right to any substantive benefit). After Teoh, successive Federal governments made public announcements intended to negate any legitimate expectation based on the Convention. These proved ineffective in that they did not involve directions to decision-makers that they should not regard themselves as obliged to apply the Convention, but merely purported to deny the legal principle that had been enunciated by the High Court in Teoh.[22] Ultimately a ministerial direction was published which was held to have set out a regime sufficient to overcome the difficulties identified in previous cases and thus to have displaced any legitimate expectation arising from Australia’s ratification of the Convention.[23]
[22]See Tien v Minister for Immigration and Multicultural Affairs (1998) 159 ALR 405.
[23]Baldini v Minister for Immigration and Multicultural Affairs [2000] FCA 173 at [29]-[30] (Drummond J). See Aronson et al, op. cit, at 404 (fn 309).
Thus it is open to public bodies, by appropriate means, to negate or terminate legitimate expectations based on substantive policies. Further, and more importantly for present purposes, in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam[24] it was, in effect, conceded by the applicant and accepted by several members of the High Court, that legitimate expectations based on established procedural practices or on procedural assurances, also, could be brought to an end.[25] The same view was adopted by the NSW Court of Appeal in Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning.[26]
[24](2003) 214 CLR 1.
[25](2003) 214 CLR 1 at [28]-[29] per Gleeson CJ; at [56] per McHugh and Gummow JJ; and at [112] per Hayne J.
[26](1997) 95 LGERA 33.
Even more fundamentally, it seems to me that the doctrine of legitimate expectation will not make the principles of procedural fairness applicable to statutory decision-making processes at all where those processes are not directed towards individuals (or distinct bodies of persons) as such. Numerous observations to that effect, including authoritative statements by Mason J and Brennan J in Kioa v West[27], were collected by Lehane J in Botany Bay City Council v Minister for Transport and Regional Development and Others, who said[28]:
[27](1985) 159 CLR 550.
[28](1996) 137 ALR 281 at 296-297. An appeal to the Full Court was peremptorily dismissed. Black CJ, Von Doussa and Sundberg JJ expressed their “full agreement” with the reasons of Lehane J: (1996) 45 ALD 125, 126. In Griffith University v Tang (2005) 221 CLR 99 at 117-118 [45], Gummow, Callinan and Heydon JJ quoted a related part of the judgment of Lehane J with approval. See also Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 651-652 per Deane J, cited in Re Minister for Resources; Ex Parte Cazaly Iron Pty Ltd [2007] WASCA 175 at [270].
“There is a clear distinction, and authorities binding on me treat it as an important distinction for these purposes, between decisions affecting the rights or interests of particular individuals and those affecting the interests, indiscriminately, of the members of the public at large of the members of a section of the public. Thus in Kioa (at CLR 584; ALR 346), immediately following the passage to which I have already referred Mason J said:
But the duty does not attach to every decision of an administrative character. Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way. Thus a decision to impose a rate or a decision to impose a general charge for services rendered to ratepayers, each of which indirectly affects the rights, interests or expectations of citizens generally does not attract this duty to act fairly.
His Honour explained, citing the judgment of Jacobs J in Salemi v MacKellar (No 2) (1977) 137 CLR 396 at 452: 14 ALR 1, that this was so because an executive or administrative decision affecting a person or corporation as a member of the public, or a class of the public, as opposed to affecting the person or corporation individually is truly a “policy” or “political” decision and not subject to judicial review. That explanation raises issues which are relevant to this and other aspects of these proceedings, and I shall return to it. Meantime, there is an extended discussion of the same distinction by Brennan J in Kioa, commencing at CLR 619. That discussion includes (at CLR 620; ALR 373) the following passage:
The legislature is not likely to intend that a statutory power of a strictly legislative nature be conditioned on the observance of the principles of natural justice for the interests of all members of the public are affected in the same way by the exercise of such a power … But the legislature is more likely to intend the exercise of a statutory power of an executive, administrative or quasi‑judicial nature to be so conditioned if an exercise of the power singles out individuals by affecting their interests in a manner substantially different from the manner in which the interests of the public at large are affected.
Queensland Medical Laboratory v Blewett (1988) 84 ALR 615, concerned, among other things, decisions to make recommendations as to the replacement of the schedule of fees payable under the Health Insurance Act 1973 (Cth) for various services provided by pathologists. Gummow J pointed out, at 637, that the replacement of the fees schedule, in accordance with a recommendation, affected the interests of the Australian public at large and also those of certain classes or groups of the public (eg, obviously enough, pathologists and patients). His Honour concluded:
It affected the interests of those providing the pathology services, of the patients and their medical advisers for whom the services are provided and of government (that is to say of the Australian community as a whole) in efficient administration of the law and proper disbursement of public moneys. I believe there is much to be said for the view that the making of a recommendation by the committee and the decision of the minister to make a determination in accordance with the recommendation of the committee did not affect the rights, interests and expectations of pathologists, other medical practitioners and patients in a sufficiently individual direct and immediate way as to attract the regard to persons in these groups the duty to act fairly . . .
Exactly the same principles were discussed and applied by the Full Court of this court in Comptroller-General of Customs v Kawasaki Motors Pty Ltd (No 1) (1991) 32 FCR 219; 103 ALR 661: see the judgment of Hill and Heerey JJ at FCR 238-41.”
In the present case, the decision under review – the decision to amend Shell’s licence – was not directed toward the plaintiff or to any distinct body of persons of which the plaintiff was a member, at all. Even if it could be said in law that the plaintiff, though a corporate body,[29] had individual “interests”[30] capable of being affected by the EPA’s decision, there is no evidence that the EPA chose to take into account any such interests of the plaintiff.[31] In law, and in substance, the decision was directed towards Shell alone. Indirectly, it may have had implications for others, such as the population in the nearby areas or, indeed, the community as a whole. But to the extent, if any, that the rights, interests or substantive expectations of the plaintiff were affected by the decision, they were not affected in a “direct or immediate way”[32] nor in a manner “substantially different from the manner in which the interests of the public at large [were] affected”.[33]
[29]Cf Red Dust [2006] SASC 114 at [28].
[30]Even in the Brennan sense.
[31]If it matters, the plaintiff had no claim to be the exclusive representative of the interests of any particular individuals or of any particular sector of the public in relation to the operations of the refinery.
[32]Kioa, at 584. See also Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274 at 305-306 per Wilcox J.
[33]Kioa, at 620.
Can the requirements for directness of impact and for the singling out of individuals be circumvented, or be regarded as satisfied, where the expectation relied on is an expectation of a procedural right based on an established practice involving the complainant or on an assurance given to the complainant? I asked counsel for the plaintiff to refer me to any authority which supported such a proposition.[34] I was referred only to Quin and to United States Tobacco Company v Minister for Consumer Affairs.[35] Quin related to a decision not to reappoint the respondent as a magistrate, a decision which obviously affected his personal interests. In Quin, Mason CJ mentioned several other cases which concerned “legitimate expectations” of procedural rights, but in all of them, including, I think, the important CCSU case,[36] the substantive decision in question singled out, and had a direct adverse effect on, the applicant or applicants for judicial review. In CCSU, it was held that, apart from considerations of national security, the Minister for the Civil Service would have had a duty to consult the Council of Civil Service Unions, on behalf of employees at Government Communications Headquarters, before issuing the instruction in question which made an important change to their conditions of service, namely an instruction to the effect that they would no longer be permitted to belong to national trade unions. There were more than 4,000 employees affected. The application for judicial review was brought by a trade union and six of the employees. It was held that the Minister’s duty would have arisen by virtue of a legitimate expectation of the union and of the employees, based on the fact that, ever since GCHQ had begun in 1947, prior consultation had been the invariable rule.
[34]Transcript p 176, 177, 180; and see also at 209.
[35](1988) 20 FCR 520.
[36]Council of Civil Service Union v Minister for the Civil Service [1985] 1 AC 374. The plaintiff places significant reliance on CCSU in its written submissions.
Notwithstanding the fairly large number of individuals involved in CCSU (over 4,000), it seems to me that CCSU is distinguishable because the substantive decision in that case (the ban on union membership) was directed to, and directly affected the interests of, each and every one of the applicant employees, and also the interests of the applicant union, and in each case in a manner that was substantially different from the manner in which the interests of the public as a whole were affected. It is also distinguishable because the instruction in question was issued under prerogative, not statutory, power; and also because, unlike the present plaintiff, the applicants had not even had an opportunity to argue against the cessation of the established practice. Further, in CCSU Lord Diplock said, referring to all exercises of administrative power (including statutory power), that to qualify as a subject for judicial review the decision in question must affect a person by altering the person’s private rights or obligations or by depriving the person of some benefit or advantage.[37] His Lordship characterised the “legitimate expectation” of the employees as an expectation “that they would continue to enjoy the benefits of [trade union] membership and of representation by those trade unions in any consultations and negotiation with representatives of the management of [the] government department as to changes in any terms of their employment.”[38]
[37][1985] 1 AC 374 at 408.
[38][1985] 1 AC 374 at 412.
In CCSU, reference was made with approval to Reg v Liverpool Corporation, Ex Parte Liverpool Taxi Fleet Operations’ Association[39] and to Attorney-General of Hong Kong v Ng Yuen Shiu.[40] Those cases may or may not remain persuasive in Australia. In any event, in the former the substantive decision – to increase the number of licences for taxis contrary to an earlier, publicly announced assurance – clearly had a distinct impact on the applicant association; and in the latter the substantive decision in question was a decision to deport the applicant himself, albeit without hearing him and in derogation from a public announcement that each alien’s case would be considered on its merits.
[39][1972] 2 QB 299.
[40][1983] 2 AC 629.
Although it is not mentioned in Quin, I have also given consideration to Century Metals and Mining NL v Yeomans,[41] a rather striking case in the same line. In Century Metals the Full Federal Court held that a press release issued by a Commonwealth minister containing an assurance that there would be a “fair, impartial and thorough” inquiry into all available proposals for the re‑opening of mining on Christmas Island, including the disposal of mining assets, gave rise to a legitimate expectation that the assurance would be honoured, notwithstanding that, apart from the press release, there would have been no obligation to hold any inquiry or investigation at all before deciding whether, and to whom, the mine site should be leased. Century Metals might be regarded as the high water mark of the “assurance” cases, but, even so, the decision complained of affected the applicant directly and specially, in that it involved the rejection of its bid for the re‑opening of the mine and the commencement of exclusive negotiations with one of the (few) other bidders.
[41](1989) 40 FCR 564.
The US Tobacco case, to which the plaintiff’s counsel referred, is plainly distinguishable. It was a case about a party’s standing to be joined to judicial review proceedings, not about natural justice. The Full Federal Court held that the Australian Federation of Consumer Organisations Incorporated (AFCO), having been admitted, pursuant to a statutory decision of the Trade Practices Commission, to a formal statutory conference concerning the regulation of certain tobacco products, was entitled to be joined as a party to resist a tobacco company’s challenge in the Federal Court to the decision to appoint the conference. The Full Court’s decision was mainly based on the statutory rights which had already accrued to AFCO as a result of its admission to the formal conference. The case does not advance the plaintiff’s present arguments.
Counsel did not refer me to any case, nor have I been able to find any, in which it has been held that an established practice of consultation with, or an assurance of consultation given to, an environmental group, a representative group, any other kind of public interest group or any other kind of third party objector at all has been held to give rise to the application of the rules of natural justice or the principles of procedural fairness (whether by way of the doctrine of legitimate expectations or otherwise) where the substantive decision has not directly and specially affected the rights, interests or substantive expectations of particular individuals or of a small identifiable group or class of individuals. Such cases and academic writings as I have been able to find touching these issues – which mainly arise in the planning and environment areas - tend strongly to the contrary.[42] The judgment of Lehane J in Botany Bay City Council v Minister for Transport[43], to which I have already referred, indicates strongly that cases favouring the plaintiff in this regard are unlikely to be found. In Botany Bay, two local councils claimed that they had been denied natural justice when, without notice to or consultation with them, the Commonwealth took certain statutory decisions towards the re‑opening of the east‑west runway at Sydney Airport, whereby the councils’ constituents were likely to be exposed to increased levels of aircraft noise. Applying the general observations set out above, Lehane J rejected the natural justice case, saying[44]:
“Counsel for the applicants argued that the decisions of the first and second respondents (and in this respect there is no relevant distinction between them) are not decisions of general application. They are decisions which have application in respect of the residents of areas surrounding the airport, particularly to the east and west. The applicants, in effect, represent the rate payers and residents of their areas, whose interests are affected by the decisions and are not those of the public at large. Attractively as that submission was put, I cannot accept it. It is, I think, contrary to the authorities to which I have referred. No doubt it is possible to say that each person living or working under a flight path within an area for which one of the applicants is responsible is affected in a way which differs from the way ‘the public at large’ – including not just those who live to the north of the airport but also those out of earshot of any conceivable flight path – are affected. But that is clearly not the distinction to which the authorities refer. Each applicant represents the interests of a section, or perhaps several sections, of the public, and, within each section, individuals are affected indiscriminately.
It remains to consider whether there are any particular circumstances relating to the decisions which should be held to have imposed on the decision‑maker an obligation which might not otherwise exist. The effect of the decisions on the environment within the applicants’ areas or, for that matter, their effect on ‘the health, comfort, amenity, convenience, safety, wellbeing or property values’ of people within the areas, cannot make a difference. As I have held, people within the applicants’ areas are not affected, in the terminology used in the authorities, in an individual capacity.”
In further remarks, his Honour proceeded to deal with, and reject, submissions based on an alleged established course of conduct and an alleged assurance.
[42]As to planning, see, eg, Idonz v National Capital Development Commission (1986) 58 LGRA 99 (Neaves J); upheld by the Full Federal Court at (1986) 60 LGERA 328, discussed in Bradbury, “The Duty to Observe Procedural Fairness in the New South Wales Planning System” (1995) 12 EPLJ 440 at 443-444; Colliers Properties (No 1) Pty Ltd v Adelaide CC (1988) 65 LGRA 397 at 403-408; City of Camberwell v McCaughey and Others Unreported, SCV (Cummins J 11 December 1989); BC 8900459 at 15-16; Transport Action Group Against Motorways Inc v Road and Traffic Authority (1999) 46 NSWLR 598 at [88]-[102]; East Melbourne Group Inc v Minister for Planning (2005) 12 VR 448 (Morris J) at 472-474 [70]-[75]; O’Mara “Procedural fairness and public participation in planning” (2004) 21 EPLJ 62 at 67-69. As to the environment, see Rigney, The Role of Procedural Fairness in the Judicial Review of Environment Disputes (1993) 8 EPLJ 136, esp at 138-139. See also, more generally, Shire of Beechworth v Attorney-General [1991] 1 VR 325(Vincent J) esp at 332; Walsh v Motor Fuel Licensing Board (1991) 25 ALD 737 at 742-744; Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 at 609 per Brennan CJ, Dawson and Toohey JJ; Corio Bay and District Private Hospital NH Pty Limited v Minister for Family Services (1998) 87 FCR 37 at 43 and 47; cf Carey v Field (2002) 122 FCR 538 at 555 [56]; Regina v Secretary of State for Transport; Ex parte London Borough of Richmond-Upon-Thames [1994] 1 WLR 74.
[43](1996) 137 ALR 281; upheld on appeal (1996) 45 ALD 125. Cf King Island Council & Resource Planning and Development Commission [2007] TASSC 42 (Blow J) at [17]-[18]. (Planning decision affecting 15 identifiable landholders held to be subject to rules of natural justice).
[44]At 297-298.
In my view, as a matter of legal principle, there is no room for procedural fairness to apply in relation to decisions that do not single out, or directly affect, individuals or bodies of persons. Accordingly I am unable to accept the plaintiff’s natural justice ground.
The inapplicability of the doctrine of legitimate expectation on the facts in any event
Lest I be wrong in the conclusion just expressed, I will deal with the matter on a broader basis. If it is possible in law for a legitimate expectation of a mere procedural right to create a duty to act fairly,[45] and even if this is possible in a case where the decision in question does not single out individuals and does not affect their interests in a direct and immediate way, still I would not uphold the plaintiff’s natural justice ground in the circumstances of this case.
[45]Contrary to my tentative view as indicated in paragraph 15 above.
My reasons in that regard have three main elements – the proper starting point, the particular statutory framework and the factual history of the interactions between the parties in this matter.
As to the starting point, it seems to me that, on any view, there can be no presumption in a case like the present that the rules of natural justice are applicable. Quite the contrary.[46] In a case like the present, the onus must surely be on the complainant to show, by reference to the relevant statutory scheme and the facts, that the duty exists. However, even if that were not so, my conclusion would still be the same.
[46]See Botany Bay City Council v Minister for Transport and Regional Development (1996) 137 ALR 281 at 296; cf Re MIMIA; Ex parte Lam (2003) 214 CLR 1 at 27 [81].
As to the statutory framework, the relevant provisions of the Act tend strongly against the imposition of a duty to act fairly towards third parties in the making of a decision under s 20A(4). The plaintiff relied on one of the “principles of environment protection” set out in the Act – principles to which by virtue of s 1A regard should be had in the interpretation and administration of the Act – namely the “principle of accountability”, which is expressed in s 1L as follows:
“(1) The aspirations of the people of Victoria for environmental quality should drive environmental improvement.
(2) Members of the public should therefore be given-
(a)access to reliable and relevant information in appropriate forms to facilitate a good understanding of environmental issues;
(b)opportunities to participate in policy and program development.”
However, the principle of accountability has to be balanced against the numerous other stated principles of environment protection, including “the principle of integration of economic, social and environmental considerations” stated in s 1B.[47] Further, the principle of accountability seems to be directed mainly towards the participation of the public in general policy and program development, as distinct from administrative decision‑making in individual cases. This view gains support from the fact that, for the most part, the provisions of the Act which specifically require “consultation” with the public are provisions concerning general policies and programs such as State Environment Protection policy and waste management policy (ss 18A – 18D) and neighbourhood improvement plans (ss 19AD – 19AK). It is true that, under s 19B, where the EPA receives an application for a “works approval” (as defined) it must publish notice of the application in a general newspaper and invite “any person or body interested” to obtain details of the application and to comment on the application; and that similar requirements apply to applications for licences or licence amendments in respect of which a works approval is required: see s 20(8), 20A(6). However those rights expire 21 days after the publication of the notice, and any comments must be in writing. There is no provision for obtaining additional particulars or information in relation to the application beyond a copy of the application itself and a summary of it. In any event, those rights did not apply in this case because, as indicated below, the decision in question was not made under any of the provisions mentioned.
[47]The various principles were inserted into the Act in 2001. One can no longer say of the Act what Stephen J said of it in 1977, namely that it was “exclusively concerned … with an unqualified protection of the environment, unqualified in the sense that no consideration is to be given to other desirable goals if they are nevertheless inimical to the environment: Phosphate Co-Operative Co of Australia v EPA (1977) 138 CLR 134 at 140; cf Australian Conservation Foundation v Environmental Protection Appeal Board [1983] VR 385 at 386 per Young CJ.
By s 33B, the Act does give third party rights of merits review at the Victorian Civil and Administrative Tribunal (VCAT) in respect of certain licensing decisions, but such rights are available only to “a person whose interests are affected by the decision” and only in respect of decisions where a works approval was required or where a suspension of a licence has been revoked. The scope of the expression “a person whose interests are affected by the decision” in s 33B is not unlimited, although it awaits definitive judicial consideration.[48] In any event, the very decision under review in the present case has been held not to be subject to merits review by any third party. Morris J, sitting as the President of VCAT, so held in Geelong Community for Good Life Inc v EPA.[49] Morris J decided that the EPA’s decision was appropriately regarded as having been made under s 20A(4), rather than s 20A(6), of the Act. Section 20A(4) provides:
“(4) Where the Authority receives an application under this section which relates to a matter in respect of which a works approval is not required, the Authority shall not later than 60 days after receiving the application-
(a) refuse to amend the licence; or
(b)amend the licence subject to any conditions that the Authority considers appropriate.”
[48]See Geelong Community for Good Life Inc v EPA [2007] VCAT 601 (Morris J, President) at [1].
[49][2007] VCAT 601.
Morris J held that a works approval was not required in respect of the licence amendments being sought by Shell. In essence, a works approval is required where any alteration to plant, equipment, materials or methods of operation proposed to be authorised by the amendment is likely to cause or to increase pollution: s 19A. The very fact that Shell’s application is deemed not to be of that character is significant in itself against the plaintiff’s claim for the imposition of a natural justice duty, notwithstanding that it can be said with justification that the EPA’s decision delayed anticipated reductions in emissions. It is also significant that where s 20A(4) applies, neither the EPA nor the applicant is under any express duty to advertise the application or to inform anyone else about it, whereas the EPA is under an express duty to make a decision on the application within the relatively short period of 60 days. In my view, the abovementioned statement on the EPA website relating to “EPA Works Approvals” does not support, but rather contradicts, the plaintiff’s submission that it had a legitimate expectation of a hearing in respect of the EPA’s decision in this case (where no works approval was required).
Finally, I turn to the facts relating to the interactions between the parties.
The evidence shows that for many years Shell’s environmental performance at Corio has been the subject of public controversy and criticism, including criticism by the EPA. In those circumstances, Shell has engaged in various activities designed to establish a better relationship with the local community and the EPA. In about 1991 it set up a public consultation forum called the Community Liaison Group (CLG). The CLG held regular meetings, mostly quarterly. Attendees included representatives of Shell, the EPA, the Country Fire Authority, WorkCover and any interested members of the community. Some persons who later became members of the plaintiff participated in CLG meetings from the beginning. Others joined in later. The plaintiff was initially formed out of the community membership of the CLG.
Running parallel with the CLG process was a series of voluntary, non-statutory, non-legally binding arrangements between Shell, the EPA and community representatives called environment improvement plans. Each was reduced to writing and signed by the parties. Although resembling environment improvement plans of the kind provided for in s 31C of the Act, none was endorsed by the EPA under that section. However they were meant to be serious commitments by Shell to specific, measurable, verifiable improvements in its environmental performance over time. Two current members of the plaintiff were signatories to the 1998 version of the EIP. At that stage the EIPs covered four areas – groundwater, effluent water, air emissions and greenhouse gas.
Following relevant changes to the Act in 2001 and two major statutory audits of the refinery by the EPA in 2002, pressure on Shell to improve was further increased as a result of a major flaring incident on the afternoon of Saturday 8 February 2003. That incident was the catalyst for the first involvement in relation to Shell’s environmental performance of the current secretary, spokesperson and major moving force of the plaintiff, Ms Suzanne McLean. At the time, Ms McLean lived with her family about one kilometre from the boundary of the refinery. Black clouds of smoke from the refinery descended on her home. As she had an asthmatic son, Ms McLean was highly concerned about the health impacts of the smoke. She was unhappy with Shell’s response to her telephone calls about the matter. As a result she attended the next CLG meeting on 10 February 2003 to express her concerns about the incident and about emissions from the refinery generally. It is fair to say that she has been extremely active in pursuing such concerns ever since. At some intervening stage she moved to Lara.
In May 2003 the EPA announced that it was expecting Shell, with community involvement, to significantly improve its existing EIP program. In June 2003 Shell advertised and called an extraordinary CLG meeting to initiate the EIP improvement process. At a CLG meeting in July 2003 Shell invited all interested community members to attend EIP meetings thereafter. Eight of the ten attendees of the first EIP meeting in July 2003 later became founding members of the plaintiff. From July 2003 until December 2003 EIP meetings were held every Wednesday for two hours or more. They were broken down into five “workshop areas”. This process enabled community members to obtain detailed information and knowledge about the technical aspects of the refinery’s operation.
Over the same period, separate CLG meetings were also continuing.
In addition, from August 2003, four elected CLG members, all of whom later became founding members of the plaintiff, commenced to attend monthly meetings between Shell and the EPA at which Shell’s environmental emissions, community health, the Shell licence, licence compliance and the Shell EIP process were discussed.
As already mentioned, the plaintiff was formed in November 2003 and received its incorporation certificate in February 2004.
In January 2004 the EPA announced a major review of the conditions of Shell’s licence and indicated that it would be linked to the EIP process. Five specialised EIP working groups were set up and began work. In each group the majority of the community members were members of the plaintiff. It was agreed that the process of licence review would be a tripartite process involving Shell, the EPA and the community, as was the case with the EIP.
The process of revision of Shell’s licence took place between early January 2004 and 8 November 2004. It involved the preparation of six drafts. Each was discussed and debated at length between the EPA, Shell and community members (including persons who were both members of the plaintiff and of the EIP group). Ms McLean describes these interactions as “negotiations”.[50] They involved formal requests by the EPA for input by the community and by Shell, and Shell in turn provided input to community members. There was regular community involvement in relation to the EIP and the licence revision process in five different forums over the period to November 2004.
[50]The expression used by Suzanne McLean in her affidavit of 4 February 2008, paras 123, 125.
The new EIP was signed off on 24 November 2004, shortly after the issue of the amended licence. The EIP was signed by Shell, the EPA and eight community representatives of whom six were members of the plaintiff. Most of those expressly signed “on behalf of” the plaintiff.
The Shell refinery manager stated publicly at the time that the EIP was “Shell’s contract with the local community”. There was some cross-over of subject matter as between the licence conditions and the EIP, including in relation to a topic of primary concern to the plaintiff, namely the reduction over time of emissions of volatile organic compounds, including benzene (EIP action items AV 14, AV 02, AV 01). Shell did not seek VCAT review of the amended licence conditions.
However, within less than a month, community members became concerned that Shell would not meet its EIP commitments or the amended licence conditions. In December 2004 the community signatories to the EIP made representations to that effect to the worldwide chairman of the Shell group of companies. At about the same time, the EPA appointed a new manager of its South-West Region Office (which covered Shell), namely Mr Alexander Jovcic.
On 6 February 2005 six of the eight community signatories to the EIP lodged a formal dispute under the EIP’s dispute resolution procedures. They claimed that Shell was in breach of various EIP and licence obligations.
From this point on, relations between the plaintiff (and its members) on the one hand and Shell and the EPA, respectively, on the other, began seriously to break down. No EIP meetings were held after February 2005. Attempts to settle the lodged EIP dispute through mediation by the Department of Justice’s Dispute Settlement Centre were unsuccessful. Shell withdrew from the mediation process in October 2005. It terminated the CLG process at the same time and instituted a new regime involving what it called a Community Advisory Panel (“CAP”).
Community members, especially those who were members of the plaintiff, voluntarily devoted a vast amount of time and expertise to the process of settling the 2004 licence amendments and the 2004 EIP. Several were well qualified engineers or similarly skilled people. One member travelled overseas at his own expense to visit refineries in Europe to acquire knowledge as to world’s best practice for reducing pollution. Members of the plaintiff provided much assistance to the EPA, as the Chairman of the EPA, Mr Bourke, has acknowledged. Therefore, in a moral sense, I understand how Ms McLean can say, as she does in her affidavit of 4 February 2008[51]:
“Having regard to the extensive involvement in the process of the development of the Shell Geelong Refinery Environment Improvement Plan and concurrent licence amendment in 2004, Geelong Community had an expectation that they would be consulted in any subsequent amendment to the Shell Geelong licence. It was our group’s belief that our members had sufficient technical knowledge of refinery operations to enable constructive participation in discussions with EPA staff regarding the detail of Shell’s licence amendment application.”
[51]Para 176.
On the other hand, the period of involvement of the plaintiff itself (as distinct from some of its members) was relatively brief as compared with, say, the period of some 35 years in the CCSU case.[52] Moreover, for legal purposes, and in particular for the purposes of the doctrine of legitimate expectation (under any hitherto known understanding of that doctrine) it seems to me that what Ms McLean herself next proceeds to say in her affidavit denies any prospect that the Court could recognise the existence, or the persistence beyond October 2005, of any legitimate expectation of which the plaintiff might take advantage in this proceeding. Ms McLean said[53]:
“177. It became clear from early 2005, that the EPA Southwest Regional office, under the then new Manager, Alexander Jovcic, had excluded us from participation in any meaningful discussion with EPA staff on Shell’s environmental performance and compliance with their licence conditions and implementation of the EIP. Shell’s cancellation of the Shell Community Liaison Group process and abandonment of the EIP dispute process failed to elicit any meaningful response from the EPA’s Mr Jovcic. Mr Jovcic subsequently left the EPA position of SouthWest Region EPA Manager to work for Shell immediately following the EPA’s granting of Shell’s licence amendment in June 2006.
178. Mr Jovcic had consistently refused to discuss the implementation of the Shell 2004 signed EIP with community members at the EPA/Community monthly meetings held during this time. Mr Jovcic’s approach negatively impacted on our [sic] previously constructive relationship between EPA staff and community members whom [sic] had been working on both the 2004 EIP and licence with the aim of improving Shell’s poor environmental performance.
179. This was in our view, a clear indication that EPAV was no longer interested in ensuring the continuation of three-way (Community/EPA/Shell) EIP process agreed to in the signed EIP … “
[52]And see the remarks of Lehane J in Botany Bay (1996) 137 ALR 281 at 298 lines 35-50.
[53]Paras 177-179. See also, to the same effect, para 23 of Ms McLean’s affidavit of 30 April 2008.
A substantially uncontradicted affidavit of Joan McGovern, Shell’s communications manager[54], indicates that during the second half of 2004 and throughout 2005 increasing numbers of Shell employees were seeking stress counselling as a result of their dealings with the plaintiff. They found it “very confronting to be accused, for example, of not telling the truth or threatened with being personally sued if they didn’t comply with the demands of the [plaintiff]”. The changeover to the CAP was partly due to this situation. On the other hand, knowledge is power, and the evidence as a whole indicates that it may well have suited the more recent purposes of both Shell and the EPA to curtail the ability of the plaintiff and its members to gain information and to ask awkward questions. But, however that may be, it does not help the plaintiff in the present case.
[54]Dated 6 March 2008. See para 8.
As mentioned above, Lam establishes that, even where the nature of the decision in question is such that a duty to act fairly applies, legitimate expectations (as to the content of the duty) may be brought to an end. And Save the Showgrounds for Sydney makes the same point in relation to a case arising in a context closer to the present, namely planning.
Further, it is significant that the process which began in November 2005 and resulted in the June 2006 amendments to Shell’s licence was initiated by Shell and was deemed to fall under s 20A(4) of the Act, whereas the process which had led to the 2004 amendments was initiated by the EPA and fell under a different section of the Act, s 20(9). They were different and separate processes.
I have mentioned that in oral submissions, though not in any of its lengthy affidavit material nor (with any clarity) in its lengthy written submissions, the plaintiff sought to rely on the fact that on 20 December 2005 the EPA, by notice under s 22 of the Act[55], required Shell to report to it “on the outcome of the community consultation with respect to the proposed licence amendment, including consultation with EIP signatories and the broader community”. In pursuance of this requirement, Shell sent a 3 page summary of its 70 page licence amendment application to, among others, the EIP signatories. (Despite the cessation of the EIP process in February 2005, the EIP itself was apparently regarded as still being in existence for some purposes in December 2005.[56]) The plaintiff responded to Shell by letter dated 16 January 2006. The main thrust of the letter was a complaint about the plaintiff having been given only a short summary of the application and having been effectively shut out from any meaningful submissions. (Some substantive points in opposition were nevertheless made). In Shell’s subsequent report to the EPA pursuant to the s 22 notice, Shell said[57]:
[55]Exhibit JRW 13 to the affidavit of John Robert Williamson sworn 23 November 2006 filed on behalf of the EPA.
[56]It was finally replaced in 2007.
[57]At page 1. See Exhibit JRW 15 to the affidavit of John Robert Williamson dated 23 November 2006.
“In responding to the application, EPA highlighted that due to the cross over between [sic] the refinery’s Environment Improvement Plan (EIP) public consultation on the proposed amendments should be undertaken. This report has been prepared for the EPA in response to its request for a report summarising the refinery’s consultation process for the proposed licence amendments.
The refinery informed the local community of the proposed amendments and sought feedback. The process involved:
*Updating the refinery’s Community Advisory Panel (CAP) of the intended changes;
*Sending a flyer to 14,000 plus homes & businesses regarding the key changes to Volatile Organic Compounds (VOC) emissions; and
*Sending summary documentation to EIP signatories for reference (in line with a commitment to keep them informed of any issues that arise or amendments that may be required); and sending summary documents to general stakeholders.”
In my view it is arguable that the “summary documentation” sent to the EIP signatories “for reference” was not sufficient to comply with any “commitment to keep them informed of any issues that arise or any amendments that may be required” (particularly if this was meant to involve more than what was done for “general stakeholders”). However, the evidence does not identify when or by what means or in what actual terms any such “commitment” was given. I note that in its media release of 7 October 2005 announcing the CAP initiative Shell said[58]:
“Shell accepts that community expectations on the refinery’s performance have not been met and is committed to addressing these concerns on the context of a broader consultation and engagement program.”
But as the plaintiff, to its chagrin, well knew, this was really code for confirmation by Shell of the exclusion of the plaintiff and its active members from any involvement of the intensive kind which previously they had enjoyed. Counsel for the plaintiff did not refer to any “commitment” at all in submissions. In any event, if there was any commitment of the kind referred to in Shell’s s 22 report, there is no clear evidence that it was given on behalf of the EPA or even at the behest of the EPA. Further, the relevant exchanges were taking place against the background of the strained, if not ruptured, relations between the parties to which I have referred. I would not consider the present case to be so similar to the Century Metals case as to call for a similar result (even apart from my view that Century Metals is distinguishable because the present case, unlike that case, does not involve individual interests).
[58]Exhibit BED 2 to the affidavit of Bruce Edgar Dawson sworn 5 February 2007.
In an affidavit dated 23 November 2006, after dealing with Shell’s “community consultation” in respect of its licence amendment application, an EPA manager, Mr Williamson said[59]:
“Notwithstanding Shell’s licence amendment application, EPA continued to hold regular monthly meetings with representatives of the THE PLAINTIFF [sic]. This incorporated the time period from December 2005 to July 2006. EPA provided updates to the group and advised on the progress of the application. This is in addition to providing updates on other aspects of Shell’s environmental performance and addressing other concerns and queries which were raised.”
That paragraph was relied upon, twice[60], by Shell in its written submissions dated 18 April 2008, in rebuttal of the plaintiff’s allegation that there had been inadequate consultation about the licence amendment application. However, in an affidavit dated 30 April 2008, Ms McLean asserted,[61] as she had in previous affidavits,[62] that while the plaintiff’s representatives tried to raise the topic of the licence amendment procedure during the meetings with the EPA in 2006 referred to by Mr Williamson, the EPA consistently refused to discuss it at those meetings. In the end, counsel agreed that I should proceed on the basis that Ms McLean was correct in that respect. Indeed, what she says is consistent with the substantially negative response received by the plaintiff’s solicitors to two letters they sent to the EPA in 2006 demanding access to the full licence application and a better opportunity generally to provide input into the process.
[59]Affidavit of John Robert Williamson sworn 23 November 2006, para 44.
[60]Paras 24(d) and 39.
[61]At paras 11-14
[62]As detailed in para 13 of her affidavit of 30 April 2008
Ironically, these circumstances do not assist the plaintiff’s present argument. Even if the plaintiff had had a relevant “legitimate expectation” of better and more informed consultation as at the beginning of 2006, I would take the view, on the facts of this case, that that circumstance entitled the plaintiff to no more than an opportunity to be heard by the EPA on the question why the EPA was denying the plaintiff better and more informed consultation: see the observations of Mason J in Quin at [31] quoted above. By its own representations and by its solicitors’ letters, the plaintiff put its case in that regard fully to the EPA, which heard and rejected it.
As mentioned above, the plaintiff relied in its written submissions on a concession or acknowledgement made by the EPA in its original outline of argument filed in February 2007, as follows:
“For the purposes of the [sic] dealing with the [natural justice] questions, the Authority acknowledges the following, namely:
(a)Shell’s past environmental performance has been not met the standards which the Authority would have wished it to meet.
(b)Apparently Shell unilaterally abandoned the CLG process at or about the time it lodged the licence amendment application in question.
(c)The signal importance of the community’s involvement in contributing to the dialogue and process for assisting in shaping Shell’s appropriate environmental performance (the process).
(d)Contributing individuals or community groups to the process may be considered to hold a legitimate expectation of being heard in respect of mattes such as applications for amendments to a licence whether falling under s.20A(4) or s.20A(6) of the EP Act. (No 2 Pitt Street Pty Ltd v Wodonga Rural City Council (No 3) [1999] VSC 319).”
However, as I have already said, neither Shell nor this Court is bound by those observations. I note also that all counsel agreed at the hearing that the case referred to in the outline, No 2 Pitt Street Pty Ltd v Wodonga Rural City Council[63], does not support the proposition for which the EPA cited it and is of no other present relevance.
[63](No 3) [1999] VSC 319.
In summary, even on the plaintiff’s asserted view of the relevant legal principles, I would still arrive at the conclusion that, by the time of the decision under review in June 2006, the plaintiff had no subsisting “legitimate expectation”, and that therefore the EPA was not, or was no longer, under a duty to act fairly towards the plaintiff in connection with the making of that decision. For those additional reasons, also, the natural justice ground must fail.
The fairness of the hearing actually given
In view of my conclusion that a duty to act fairly was not attracted to the EPA’s ultimate decision of 30 June 2006, it is strictly unnecessary to deal with the detailed submissions that were made as to whether the “hearing” that was in fact given to the plaintiff was sufficient in relation to all or any of the amendments that were made to Shell’s licence. However, in case it be relevant to costs, I would indicate in general terms that, in my view, had the rules of natural justice applied, the EPA would have been required to do more than it did.
Subject to any questions of confidentiality, the EPA would have been required to make available to the plaintiff all information in its possession that was credible, relevant and significant to the decision to be made.[64] There was a substantial amount of supporting material in Shell’s application that the EPA did not disclose but which it would have been obliged to disclose under the principles of procedural fairness. Any issues of confidentiality in this case could have been dealt with other than by way blanket non-disclosure of the supporting material.[65] The summary which was provided would not have been sufficient in this case. Although the plaintiff was familiar with a great deal of technical background information relating to the refinery, the summary did not reveal, to a sufficient extent, the particular supporting material and the reasons on which Shell was relying, or not relying, in order to persuade the EPA to agree to the amendments being sought, especially in relation to the central issue of emissions of volatile organic compounds, including benzene, and the important issue of fluoride emissions. For example, much of the material about emissions of volatile organic compounds at pp 9-18 of Shell’s application would have fallen into this category.[66] In addition, I would have been of the view that the summary did not accurately and sufficiently reveal the terms, or even the nature, of some of the amendments being sought, especially in relation to annual reporting. Under the adjudicative style of procedure by reference to which the rules of natural justice have been developed, those rules, whilst very flexible, mandate at a minimum that the individual be given proper notice of the proposal and a reasonable opportunity to meet the case of the proponent or opposite party and to deal with adverse material before the decision-maker.[67] Had those standards been applicable, they would not have been met in this case.
[64]See Kioa v West (1985) 159 CLR 550 at 628-629; Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at 95.
[65]Cf Applicant VEAL (2005) 224 CLR 88 at 99-100 [27]-[29].
[66]Shell also provided substantial additional information to the EPA in a supplementary submission dated December 2005 which was lodged pursuant to a s 22 notice issued by the EPA and which therefore presumably contained credible, relevant and significant material, but ultimately the plaintiff confined its complaint to material contained in the licence amendment application of November 2005 itself.
[67]Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-592; Dagli v Minister for Immigration and Multicultural and Indigenous Affairs [2003] 133 FCR 541 at 541 at 558 [95]; Robb & Dale v Chief Commissioner of Police [2005] VSC 310 (Smith J) at [70] and cases there cited; cf Shields v Chief Commissioner of Police [2008] VSC 2 (Bell J) at [41]
A “duty to consult”?
For completeness, I note that the plaintiff placed no reliance on – indeed, made no reference - to the notion of a “duty to consult”, as distinct from the duty that is imposed by the rules of natural justice or the principles of procedural fairness. The possibility of a common law “duty to consult” is discussed by Aronson, Dyer and Groves in their leading text.[68] They say that a duty to consult might be thought suitable in relation to polycentric decisions affecting the public as a whole or large sections of the public, given that in such situations the adjudicative style of procedure (which results from giving affected individuals a right to be heard under the principles of natural justice) is inappropriate. However I note, and agree with, the learned authors’ conclusion that “the High Court is likely to be reluctant to develop any general common law requirement of consultation, the breach of which results in invalidity”[69].
[68]Aronson et al, op. cit, 429-432. See also Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) NSWSC 348, esp the text relating to footnotes 38 and 39; In re Westminster City Council [1986] 1 AC 668 at 692F-693A; Jergesen “The Legal Requirements of Consultation” [1978] PL 290.
[69]At 432.
Ultra Vires
The ultra vires ground can be disposed of shortly. As indicated above, it was hardly pressed.
Section 20C(2) of the Act provides:
“(2)In considering an application for the issue, transfer or amendment of an authorisation, the Authority must have regard to policy so that the authorisation and any condition in, or relating to, the authorisation is consistent with all applicable policies.”
The plaintiff’s contention[70] is that s 20C(2) of the Act requires:
(a)that in decision-making the EPA must have regard to policy; and
(b)that all licence conditions must be consistent with policy.
[70]Written submissions, para [47].
The first proposition is correct, but, as Shell submits, the second proposition is incorrect insofar as it suggests that s 20C(2) requires consistency with policy as an objective fact, as distinct from requiring that the EPA be satisfied that licence conditions are consistent with policy. All of the plaintiff’s submissions to the effect that the conditions of Shell’s licence were inconsistent with declared government environmental policies proceeded on the false assumption that the Court could investigate and determine those questions for itself on an objective basis.
The ultra vires allegations cannot succeed.
Discretion
If the plaintiff had been able to establish one or other of its grounds of review, difficult issues of discretion would have arisen as to the nature of the relief, if any, that would have been appropriate, especially in view of the time that has elapsed and the steps that have been taken by Shell since the licence amendments were made. I need say no more on that topic.
Conclusion
The proceeding will be dismissed.
Costs
I will hear the parties as to costs. My tentative view at the moment is that, given the way in which the parties’ respective cases were put, and bearing in mind particularly the encouragement that the plaintiff might have drawn from the EPA’s concession that the plaintiff had some kind of “legitimate expectation”; together with the lateness of Shell’s reliance on the proposition that the plaintiff had no legitimate expectation at all; [71] and given the amount of time spent at the hearing on questions concerning standing and questions concerning the content, as distinct from the applicability, of the rules of natural justice in this matter (albeit that the plaintiff probably should have provided, in a more timely way, further and better particulars of its natural justice complaint pursuant to Shell’s request of 28 February 2008), there should be no order as to costs, notwithstanding that the proceeding will be dismissed. The plaintiff’s presumed public interest purpose in bringing this proceeding might, if need be, provide further support for that view.[72] My present inclination is to order that unless within seven days a party notifies my Associate that it wishes to submit that some different order as to costs should be made, there will be no order as to costs.
[71]This was only raised clearly in final submissions.
[72]Compare Oshlack v Richmond River Council (1998) 193 CLR 72 and Geelong Community for Good Life v Environment Protection Authority [2007] VCAT 601 at [54].
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