Greendene Development Corporation Pty Ltd v Environmental Protection Authority
[2003] WASCA 242
•10 OCTOBER 2003
GREENDENE DEVELOPMENT CORPORATION PTY LTD -v- ENVIRONMENTAL PROTECTION AUTHORITY [2003] WASCA 242
| (2003) 28 WAR 107 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 242 | |
| THE FULL COURT (WA) | |||
| Case No: | CIV:1320/2003 | 25 JULY 2003 | |
| Coram: | MURRAY ACJ STEYTLER J MCKECHNIE J | 10/10/03 | |
| 24 | Judgment Part: | 1 of 1 | |
| Result: | Order nisi discharged, Application for declaration dismissed | ||
| A | |||
| PDF Version |
| Parties: | GREENDENE DEVELOPMENT CORPORATION PTY LTD ENVIRONMENTAL PROTECTION AUTHORITY |
Catchwords: | Administrative law Prerogative writs and orders Certiorari to quash decision of Environmental Protection Authority ("EPA") to assess approved subdivision of land Application for declaration that determination be declared null and void Whether application still a "proposal" once approved by Western Australian Planning Commission Whether "proposal" previously referred to EPA Effect of failure to comply with time limit for notification Environmental law Whether application still a "proposal" for the purposes of the Environmental Protection Act 1986 once approved by Western Australian Planning Commission Effect of failure to comply with time limit for notification Words and phrases "proposal" |
Legislation: | Environmental Protection Act 1986, s 7(2), s 22(1), s 38, s 39, s 40, s 41, s 43, s 44, s 45, s 46, s 47, s 48, s 100 Interpretation Act 1984, s 56(2) Town Planning and Development Act 1928, s 20(1)(a), s 20AA, s 20D |
Case References: | Lombardo v Development Underwriting (WA) Pty Ltd [1971] WAR 188 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Re Environmental Protection Authority; Ex parte Sandbourne Holdings Pty Ltd (2002) 121 LGERA 34; [2002] WASCA 75 Re Western Australian Planning Commission; Ex parte Leeuwin Conservation Group Inc [2002] WASCA 150 Re Environmental Protection Authority; Ex parte Chapple (1995) 89 LGERA 310 O'Reilly v Commissioners of the State Bank of Victoria (1983) 153 CLR 1 Squarcini & Milino Pty Ltd v State Planning Commission, unreported; SCt of WA (Scott J); Library No 960200; 17 April 1996 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : GREENDENE DEVELOPMENT CORPORATION PTY LTD -v- ENVIRONMENTAL PROTECTION AUTHORITY [2003] WASCA 242 CORAM : MURRAY ACJ
- STEYTLER J
MCKECHNIE J
- Applicant
AND
ENVIRONMENTAL PROTECTION AUTHORITY
Respondent
Catchwords:
Administrative law - Prerogative writs and orders - Certiorari to quash decision of Environmental Protection Authority ("EPA") to assess approved subdivision of land - Application for declaration that determination be declared null and void - Whether application still a "proposal" once approved by Western Australian Planning Commission - Whether "proposal" previously referred to EPA - Effect of failure to comply with time limit for notification
(Page 2)
Environmental law - Whether application still a "proposal" for the purposes of the Environmental Protection Act 1986 once approved by Western Australian Planning Commission - Effect of failure to comply with time limit for notification
Words and phrases - "proposal"
Legislation:
Environmental Protection Act 1986, s 7(2), s 22(1), s 38, s 39, s 40, s 41, s 43, s 44, s 45, s 46, s 47, s 48, s 100
Interpretation Act 1984, s 56(2)
Town Planning and Development Act 1928, s 20(1)(a), s 20AA, s 20D
Result:
Order nisi discharged
Application for declaration dismissed
Category: A
Representation:
Counsel:
Applicant : Mr L A Stein
Respondent : Mr R M Mitchell
Solicitors:
Applicant : Phillips Fox
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Lombardo v Development Underwriting (WA) Pty Ltd [1971] WAR 188
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
(Page 3)
Re Environmental Protection Authority; Ex parte Sandbourne Holdings Pty Ltd (2002) 121 LGERA 34; [2002] WASCA 75
Re Western Australian Planning Commission; Ex parte Leeuwin Conservation Group Inc [2002] WASCA 150
Case(s) also cited:
Re Environmental Protection Authority; Ex parte Chapple (1995) 89 LGERA 310
O'Reilly v Commissioners of the State Bank of Victoria (1983) 153 CLR 1
Squarcini & Milino Pty Ltd v State Planning Commission, unreported; SCt of WA (Scott J); Library No 960200; 17 April 1996
(Page 4)
1 MURRAY ACJ: I agree entirely with the judgment of Steytler J. The comprehensive nature of his Honour's reasoning makes it unnecessary for me to add any comments of my own.
2 STEYTLER J: This application for prerogative relief and for a declaration raises a number of questions about the operation of the Environmental Protection Act 1986 ("the Act").
3 The applicant owns some 98 hectares of land in the Margaret River area. The land falls within an area which has been zoned "Development" under the Shire of Augusta-Margaret River Town Planning Scheme No 17 ("TPS 17"). The objective of the "Development" zone is expressed in Cl 3.2.11 of TPS 17 as being that of providing for "the subdivision and development of the land in accordance with structure plans prepared in accordance with related scheme provisions". The land is included within Overall Planning Area No 5, which is provided for by Cl 3.4.5 of TPS 17. Subclause 3.4.5(b) provides that subdivision and/or development of the land will not be supported by the Shire Council until such time as an outline development plan has been prepared in accordance with requirements listed under Cl 3.4.1(f) and 3.4.1(g). In 1995 the then owners of the land proposed to develop it as a residential development known as "the Riverslea project". An outline development plan was consequently prepared and lodged with the Western Australian Planning Commission ("WAPC"). Shortly thereafter, the land was purchased by the applicant.
4 The original outline development plan was replaced, in January 1998, with a revised plan, prepared on behalf of the applicant, showing the proposed subdivision of the area. The Shire of Augusta-Margaret River ("the Shire") and the then Ministry for Planning formed a technical advisory group in order to assess the revised outline development plan. Following upon that group's comments on an overall structure plan which had by then been prepared for the East Margaret River area (in which the land fell), it was agreed that the Riverslea outline development plan would be reviewed. That led to the submission of a further revised outline development plan in December 1999 ("the 1999 outline development plan").
5 Then, by letter dated 3 February 2000, the Shire forwarded on to the Department of Environmental Protection ("the DEP") what it described as a copy of "an application" received in relation to the "Proposed Riverslea Outline Development Plan". Enclosed with the letter was a document prepared for the applicant by a town planning firm, Koltasz Smith and
(Page 5)
- Partners, headed "Proposed Outline Development Plan". That document was not in fact the 1999 outline development plan itself, but a report ("the report"), spanning some 28 pages and a number of attachments, dealing with the proposed development and with issues required to be addressed in respect of it. The outline development plan itself was not sent by the Shire to the DEP. The material portion of the Shire's letter read as follows:
"In order for Council to determine the application within its statutory deadline, it would be appreciated if you could assess this application and forward any comments you wish to make within 30 days from the date of this letter. If no response is received within this time period, it will be assumed you have no comments or objection to the proposal."
7 According to Mr Darren Walsh, the manager of the DEP's Planning Assessment Branch of its "EPA Service Unit", the DEP's Planning Assessment Branch provides advice and assistance to the EPA, but also receives from local authorities "a considerable number of requests forcomment on outline development plans, structure plans, subdivision guide plans and similar policies which are made either informally or under town
(Page 6)
- planning schemes". He says that the DEP provides advice to local authorities on the environmental issues associated with development plans and as regards the potential need to refer subsequent subdivision and development proposals to the EPA under Part IV of the Act. Mr Walsh says that advice is provided by departmental officers without reference to the EPA, but taking into account general EPA policies and practices.
8 Mr Walsh describes the DEP's then practice, upon receiving either a referral of a proposal to the EPA or a request for comment from the DEP, in the following way. First, an administrative officer of the DEP would create a file and pass it on to another administrative officer known as the "GIS Officer". The GIS Officer would carry out a brief examination of the environmental constraints affecting the land and he or she would then pass the file on to the relevant assessment officer within the EPA Service Unit. That assessment officer would identify the environmental issues associated with the subject of the correspondence in more detail and provide Mr Walsh with advice "as to whether the correspondence is:
(i) a referral of a proposal or scheme to the EPA under Part IV of the … Act;
(ii) not a referral of a proposal to the EPA under Part IV of the … Act, but concerns a proposal of such environmental significance that it ought to be referred to the EPA under Part IV of the ... Act; or
(iii) is a request for comment from the ... [DEP] which is not and ought not be a referral to the EPA under Part IV of the Act."
9 Mr Walsh would then consider that advice. If he concluded that the correspondence amounted to no more than a request for comment from the DEP then he would request the assessment officer to prepare a response to that request and there would be no referral to the EPA. If the correspondence amounted, on the other hand, to a referral of a proposal to the EPA, then a particular process would be followed resulting in consideration of it by the Chairman of the EPA, who would determine, under delegated authority from the EPA, whether the proposal ought be assessed. That determination was then recorded in what was referred to as the "Black Book", which is the public record of the EPA kept under s 39 of the Act.
10 The pro forma document completed by the administrative officer on 7 February 2000 was completed prior to any consideration by the relevant
(Page 7)
- assessment officer or by Mr Walsh as regards the appropriate category into which the correspondence fell. Although the title of the pro forma is, as I have said, "Section 38 Referrals Form", the form is used as an internal report from the GIS officer to the assessment officer for all correspondence of the kind to which I have referred and does not signify that a proposal is, or has been treated by the DEP as, a referral of a proposal pursuant to s 38 of the Act. I should add that the ticking of the fourth of the boxes to which I have referred was self-evidently a mistake as there had been no "call-in" by the EPA.
11 There is no doubt that the DEP did not treat the Shire's letter of 3 February 2000 as a referral to the EPA. It said so, in a letter signed by Mr Walsh and dated 23 March 2000, the relevant portion of which reads as follows:
"The … DEP ... has treated your letter dated 3 February 2000 as correspondence and not as a referral to the ... EPA ... under Section 38 or 48A of the Environmental Protection Act.
The letter does, however, contain some preliminary comments on the environmental issues related to the proposed outline development plan. These comments are provided on the understanding that if you decide to proceed with the proposal it would require referral to the EPA if the environmental impacts are likely to be significant.
As you are aware, the EPA is an independent statutory authority and any advice it gives in relation to your proposed development may not be same [sic] as that given here. The DEP endeavours to provide you with comments based on our understanding of EPA's current policy."
12 The DEP's comments then followed. One of these was to the effect that the DEP would not support the current outline development plan due to the lack of information regarding a number of environmental issues.
13 Mr Walsh has said in his affidavit that, to the best of his knowledge, the Shire's letter dated 3 February 2000 and its annexure were not forwarded to the EPA. He says that he checked the entries for February and March 2000 in the "Black Book" referred to above and that he could find no reference to the 1999 outline development plan. Nor has he been able to locate any record of the DEP or of the EPA which suggests that the EPA ever dealt with or was shown the proposal for that outline development plan.
(Page 8)
14 The 1999 outline development plan was thereafter revised and modified in consultation with the Shire and the Department of Planning and Infrastructure. A final form of the outline development plan was then endorsed by the WAPC on 11 December 2001. Thereafter, on 19 July 2002, a revised application for subdivision of two portions of the then unsubdivided balance of the Riverslea project area (about 50 per cent of that area having already been developed) was approved, subject to conditions, by the WAPC on 19 July 2002 (WAPC reference 118799). In October 2002 the applicant submitted to the Shire subdivision and construction plans relating to WAPC 118799 and to an earlier subdivision of an adjoining area to be dealt with in accordance with the advisory footnotes to the conditions of those respective subdivision approvals.
15 Then, by letter dated 15 October 2002, the Leeuwin Conservation Group (Inc) referred "the latest subdivision approval at Riverslea … for environmental impact assessment" under s 38 of the Act. On 23 December 2002, the Chairman of the EPA, acting pursuant to the authority delegated to him by the EPA, determined that the subdivision should be assessed under the Act by way of a public environmental review. On the following day he wrote to the applicant, advising it of that decision. By letter dated 24 January 2003, the Shire informed the solicitors for the applicant that it had received notification from the EPA of the impending assessment and that, as a consequence, "the Council's decision making in relation to the engineering plans and specifications for ... [the] subdivision … is prohibited by reason of s 41(2) of the … Act". That section has the effect, so far as is relevant in this context, that, where a decision-making authority has been notified that a proposal has been referred to the EPA under s 38(1) and that proposal is to be assessed by the EPA, the decision-making authority "shall not make any decision that could have the effect of causing or allowing the proposal to be implemented" until such time as it is authorised to do so under s 45(7) of the Act.
The amended order nisi
16 Against this background, the applicant sought and obtained an order nisi for the issue of a writ of certiorari, directed to the EPA, removing to this Court, to be quashed, the decision of the EPA that the approved subdivision of the land should be assessed. The applicant has also sought a declaration that the EPA's "determination … be declared null and void".
17 As the order nisi has since been amended, the applicant pursues three broad grounds.
(Page 9)
18 The first is that, when the WAPC conditionally approved the applicant's application to subdivide its land on 19 July 2002, the application ceased to be a "proposal" for the purposes of s 38 of the Act and therefore was not capable of being referred to the EPA under that section, with the result that the EPA had no jurisdiction or power under s 40 of the Act to assess the approved subdivision as a proposal.
19 The second ground is that, even if the approved subdivision remained a proposal for the purposes of s 38 of the Act, the application to subdivide was in substance the same as the proposal contained in the 1999 outline development plan which had already been referred to the EPA "by its agent the … [DEP]" in about March 2000 and, by virtue of s 38(5) of the Act, could not again be referred. That section provides that, subject to s 46(6) of the Act (which is not presently relevant), a proposal shall be referred only once to the EPA under s 38.
20 The third ground is that, contrary to the requirement of s 40(1)(b) of the Act, the EPA failed to inform the applicant in writing, within 28 days after the referral of the 2002 subdivision, that it considered that that proposal should be assessed by it. Section 40(1)(b) provides as follows:
"(1) When a proposal is referred to the ... [EPA] under section 38, the ... [EPA] shall –
…
(b) if it considers that the proposal should be assessed by it under this Part –
(i) so inform in writing within 28 days after that referral –
(A) the proponent;
(B) if the proposal is not so referred by the proponent, the person by which or whom it is so referred; and
(C) any relevant decision-making authority;
and
(ii) assess the proposal."
(Page 10)
22 I will deal with each of these grounds in turn.
Was the 2002 subdivision application still a "proposal" once approved by the WAPC?
23 As to the first ground, I have said that the applicant contends that, once the WAPC conditionally approved its application to subdivide the land on 19 July 2002, the application ceased to be a "proposal" for the purposes of s 38 of the Act and could consequently not be referred to the EPA under that section.
24 The application for approval was made under s 20(1)(a) of the Town Planning and Development Act 1928. That section empowers the WAPC to give its approval subject to conditions "which shall be carried out before the approval becomes effective". Mr Stein, counsel for the applicant, submitted that an application for approval of a subdivision under s 20(1)(a) triggers an assessment process by the WAPC, including an assessment of environmental considerations, which might result in the imposition of conditions of the kind referred to in the section. Under s 20AA of the Town Planning and Development Act, a person to whom approval of a plan of subdivision has been given may, at any time within three years thereafter, submit to the WAPC a diagram or plan of survey of the subdivision for endorsement, upon it, of the WAPC's approval. If the diagram or plan or survey is submitted in the prescribed manner and form and is accompanied by the prescribed fee, the Commission is required to endorse its approval on that diagram or plan of survey so long, of course, as it is satisfied that the diagram or plan of survey is in accordance with the approved plan of subdivision and that any conditions have been complied with. Under s 20D, when an approval of a subdivision of any land to which a town planning scheme relates is expressed to be subject to:
"(a) the condition that the applicant for that approval -
(i) cause to be constructed to the satisfaction, and in accordance with the specifications, of the responsible authority a road or roads providing access to, or within;
(ii) make arrangements with the Water Corporation … for the provision of water services … to the satisfaction of that Corporation within; or
(Page 11)
- (iii) cause to be filled or drained or filled and drained to the satisfaction, and in accordance with the specifications, of the responsible authority the whole or any part of,
that land; or
- (b) any 2 or all 3 of the conditions referred to in paragraph (a)."
25 the approval is deemed to be that of the responsible authority under the town planning scheme of the development "which is, in the opinion of the Commission, necessary or desirable for compliance with the condition or conditions to which the first-mentioned approval is subject".
26 In this case, the WAPC, by letter dated 25 July 2002, did impose some conditions in respect of its approval. These related, inter alia, to road works, land filling and drainage, being conditions of the kind contemplated by s 20D of the Town Planning and Development Act. They were accompanied by an advice note to the effect that construction should not commence until the Council had approved detailed engineering plans and specifications of the works, including earthworks, roads and paths, drainage, clearing, landscaping/rehabilitation and soil stabilisation measures.
27 Counsel for the applicant contended that it is settled that conditions of the kind imposed in this case, under s 20(1)(a) of the Town Planning and Development Act, are conditions subsequent, such that the approval may be acted on at once, notwithstanding the conditions, albeit at the risk that the approval may cease to be effective if the conditions are not complied with (Lombardo v Development Underwriting (WA) Pty Ltd [1971] WAR 188 at 197 and Re Western Australian Planning Commission; Ex parte Leeuwin Conservation Group Inc [2002] WASCA 150 at [23]). Consequently, he submitted, upon the giving of the conditional approval, the applicant was free to commence, amongst other things, road works and fill and drainage works which would result in the clearing of the vegetation which has caused concern in this case, being vegetation adjacent to the Darch Brook, a tributary of the Margaret River. The clearing of this vegetation is said to be a matter of concern because it is likely to result in "loss of fauna habitat, removal of the vegetated buffer to Darch Brook and potential impacts on water quality within the Brook" (par 38 of Mr Walsh's affidavit).
(Page 12)
28 Mr Stein pointed to the fact that the Act confers no express general power to stay the implementation of an approved subdivision. He also submitted that there is no room, in such a case, for the operation of s 41(2) of the Act to which I have earlier referred, and which provides that a decision-making authority that has referred a proposal to the EPA, or that has been notified that a proposal has been referred to the EPA, "shall not make any decision that could have the effect of causing or allowing the proposal to be implemented" until informed that the EPA considers that the proposal should not be assessed by it (and there has been no successful appeal against that decision) or, as I have previously mentioned, until it is served with a notice under s 45(7) permitting such a decision to be made. This was so, Mr Stein submitted, because there would be no decision left to be made by any "decision-making authority", defined in s 3 to mean, so far as is relevant, a public authority empowered, by or under a written law or by or under any agreement to which the State is a party and which is ratified or approved by an Act, to make a decision in respect of any proposal.
29 Counsel for the applicant went on to submit that it could not sensibly be thought that, in circumstances in which the works could immediately be carried out, rendering an assessment futile, there could yet be an assessment by the EPA. Rather, he submitted, the only workable construction of the Act is one which does not encompass within the definition of a "proposal" an application for subdivision which has been approved by the WAPC under s 20(1)(a) of the Town Planning and Development Act.
30 Mr Stein also submitted that the reference to "implemented" in s 41(2) of the Act could not mean "completed", as proposals are implemented in stages. Rather, he submitted, the purpose of assessment under s 40 of the Act is that of facilitating a decision under s 45 whether or not a particular proposal may be implemented and, if so, under what conditions and that the Act is intended to provide for an assessment of the environmental consequences of a proposal that is likely to have a significant effect on the environment only prior to it being implemented, whether in whole or in part.
31 The word "proposal" is very widely defined in s 3(1) of the Act. That section provides that, unless the contrary intention appears, the word "proposal" means "project, plan, programme, policy, operation, undertaking or development or change in land use, or amendment of any of the foregoing, but does not include scheme" (the word "scheme" is also defined in s 3(1), but that definition is not material for present purposes).
(Page 13)
- It seems to me that, on the ordinary meaning of the definition, a plan of subdivision is a "plan" and the subdivisional development proposed by that plan is a "development", with the consequence that an application for subdivision is a "proposal" within the meaning of the definition. That, in my opinion, would be so, on the face of the definition, whether or not the application or plan has been approved. The applicant's contention that an approved plan of subdivision is not a "proposal" consequently rests upon the proposition that the scheme of the Act requires that the word "proposal" be given the narrower construction for which it contends. That proposition calls for some analysis of the material provisions of the Act.
32 Under s 38 of the Act, a proposal that appears likely, if implemented, to have a significant effect on the environment must, subject to the exceptions provided for, be referred to the EPA by a decision-making authority as soon as that proposal comes to its notice and may be referred to the authority by the proponent or, where the proposal is not one under an assessed scheme, by any other person. I have said that, under s 39, the EPA is required to keep a public record of each proposal referred to it under s 38. By virtue of s 40(1), when a proposal is referred to the EPA under s 38, it must consider whether or not to assess the proposal and then give notice accordingly. Under s 40(2) the EPA is given various powers for the purpose of assessing a proposal. By s 100(1) any decision-making authority, responsible authority, proponent or other person which or who disagrees with a decision of the EPA that a proposal should not be assessed by it or, inter alia, with the level of assessment of a proposal, is given a right of appeal to the Minister. Under s 41(1), the EPA, if it considers that the proposal should be assessed, is required to notify any relevant decision-making authority that the proposal has been referred to it. I have already mentioned that under s 41(2), a decision-making authority that has referred a proposal to the EPA, or been notified of the referral to the EPA of a proposal, is prohibited from making any decision that could have the effect of causing or allowing the proposal to be implemented until informed by the EPA that the proposal is not to be assessed by it and until the period within which an appeal against the decision may be lodged under s 100(1) has expired, without any such appeal being lodged, or until such time as the appeal has been determined or an authority has been served on it under s 45(7). Under s 43(1) of the Act the Minister is given various powers, including the power to direct the EPA to assess a proposal or to assess or re-assess it more fully or more publicly or both.
33 Where the EPA does assess or re-assess a proposal it is required, by s 44(1), to prepare a report on the environmental factors relevant to the
(Page 14)
- proposal and on the conditions and procedures, if any, to which any implementation of that proposal should be subject and it is empowered to make such recommendations in the report as it sees fit. Publication of the report is provided for by s 44(3). Section 45 then provides for a consultation process between the Minister and decision-making authorities with a view to reaching agreement on whether or not the proposal to which the report relates may be implemented and, if so, on what conditions and subject to what procedures. Where agreement is reached or a decision made that a proposal may be implemented and on the conditions and procedures, if any, to which that implementation should be subject, the Minister is required, by s 45(5), to notify the persons specified in that subsection, including the decision-making authority or authorities consulted by him under s 45(1), accordingly.
34 Section 100(2) gives to any responsible authority, decision-making authority, proponent or other person which or who disagrees with the content of, or any recommendations in, the report a right of appeal. Section 100(3) gives a similar right to any proponent which or who disagrees with any of the conditions or procedures agreed or decided upon under s 45. Section 45(6)(a) provides that, if an appeal is lodged under s 100(2) in respect of a report published under s 44(3), the proposal to which that report relates shall not be implemented while the appeal is pending or otherwise than in accordance with the decision made on the appeal. Section 45(6)(b) provides that where, under s 100(3), an appeal is lodged in respect of any conditions or procedures agreed or decided upon under s 45, the proposal shall not be implemented while the appeal is pending or subject to any conditions or procedures which are not in accordance with the decision made on the appeal. However, s 45(6) does not provide for a stay in the case of an appeal under s 100(1) which, as I have said, encompasses an appeal against a decision of the EPA that a proposal should not be assessed by it, perhaps because s 41(2)(c) assumes that, in such a case, there will still be a decision-making authority which will be prevented from making any decision that could have the effect of causing or allowing the proposal to be implemented until one of the events there referred to has occurred.
35 Next, under s 45(7), the Minister may, as soon as he is satisfied that there is no reason why a proposal in respect of which a statement has been published under s 45(5)(b) should not be implemented, cause to be served on the decision-making authority precluded by s 41 from making any decision that could have the effect of causing or allowing that proposal to be implemented an authority in writing permitting such a decision to be made. If an agreement is reached or a decision is made under s 45 that a
(Page 15)
- proposal may not be implemented, the Minister is required, by s 45(8), forthwith to notify the persons specified in s 45(5), including the decision-making authority or authorities consulted by him and the proponent of the proposal, in writing accordingly.
36 Section 46 provides for the amendment of conditions and procedures in a case in which the Minister, if he or she considers that any conditions or procedures agreed or decided upon under s 45 should be changed, requests the EPA to inquire into and report to him or her whether or not those conditions or procedures should be changed. By s 46(6), notwithstanding anything in s 46, a proposed change to any conditions or procedures agreed or decided upon under s 45 shall, if the Minister and any decision-making authority consulted by him or her under that section agree that that change is a major change, be deemed to be a new proposal and shall be referred by that decision-making authority to the EPA under s 38(1).
37 Under s 47(1), a proponent upon whom a statement has been served under s 45(5), and who does not ensure that any implementation of the proposal to which that statement relates is carried out in accordance with any conditions and procedures set out in the statement, commits an offence. By s 47(2), such a proponent may be required to give to the Chief Executive Officer reports and information in respect of the implementation of the proposal and of any of the specified conditions and procedures.
38 Finally, s 48 provides for the monitoring of the implementation of any proposal, insofar as that implementation is subject to any conditions or procedures, for the purpose of determining whether or not those conditions or procedures have been or are being complied with.
39 It is apparent, from this scheme, that nowhere is there any direct prohibition against the implementation of a proposal that has been referred to the EPA, other than by means of the mechanism provided for by s 41(2) and that provided for by s 45(6) which, as I have said, does not deal with the situation where the appeal is against a decision of the EPA that a proposal shall not be assessed, presumably because it was thought that s 41(2)(c) of the Act would cope with that situation. The absence of such a prohibition, taken together with the omission, in s 45(6), of a provision providing for a stay in the case of an appeal under s 100(1), consequently provides some support for the proposition that the legislature did not contemplate a situation in which the EPA might assess a proposal which had advanced to the point where its implementation was
(Page 16)
- no longer contingent upon the making of a decision by any decision-making authority.
40 That said, it seems to me that these omissions are not such as should require the Act to be read down so as to confine the ordinary meaning of the definition of "proposal" to proposals which cannot be implemented without further approval from some decision-making authority.
41 It may be that the legislature assumed that, in any case in which a proposal was likely, if implemented, to have a significant effect on the environment, it would be referred to the EPA prior to completion of the decision-making process and, for that reason, made no specific provision for a situation in which that was not the case. However, the Act cannot, in my opinion, be taken not to apply simply because no further statutory approval is required. A construction of that kind would have the consequence that, if the prospect of an environmental disaster became apparent only after all decision-making processes had been completed, but before a proposal had been implemented, the processes provided for by the Act could not be called in aid in order to assess that prospect and, if necessary, prevent it from becoming a reality by means of the imposition of appropriate conditions. I am unable to accept that this could have been intended.
42 That it was not the intention of the legislature, and that the legislature contemplated that the Act would continue to operate until such time as a proposal had been fully implemented, seems to me to be supported by the terms of s 46(1) of the Act which, as I have said, empowers the Minister, if he considers that any conditions or procedures agreed or decided upon under s 45 should be changed, to request the EPA to inquire into and report to him on the question whether there should be any such change. That section appears to me to be intended to operate even during the implementation phase of a proposal and after approvals have already been given, even though there is no provision in the Act expressly requiring that the implementation should cease, or relevantly cease, pending the production of that report and the making of any decisions as a consequence of it. I have also mentioned that s 46(6) provides that, notwithstanding anything in s 46, a proposed change to any conditions or procedures agreed or decided upon under s 45 shall, if the Minister and any decision-making authority consulted by him under that section agree that that change is a major change, be deemed to be a new proposal and shall be referred by that decision-making authority to the EPA under s 38(1). There is nothing in that section, or elsewhere in the Act, to
(Page 17)
- suggest that the change is one which might only be made before all decision-making authorities have played their part.
43 Similarly, it seems to me that s 47 and s 48 of the Act are intended to continue to have effect during the implementation of proposals, and that a "proposal" will continue to be such for the purposes of the Act, regardless of whether or not all necessary decisions have been made by "decision-making authorities". As will already be apparent, s 47 makes it an offence for a proponent not to ensure that "any implementation of the proposal" dealt with in a statement served under s 45(5) is carried out in accordance with any conditions and procedures set out in the statement and gives to the Chief Executive Officer power to require the proponent to give him such reports and information "in respect of the implementation of the relevant proposal" and of any conditions and procedures set out in the statement as the Chief Executive Officer thinks fit. I have said that s 48 provides for the monitoring of "the implementation of any proposal".
44 Consequently, while there is some force in Mr Stein's submissions, I am not, in the end, persuaded by them.
45 Mr Mitchell, counsel for the respondent, contended, by way of further answer to the applicant's submissions in this respect, that whatever may be the position in respect of them, the decision-making process in respect of this proposal has yet to be exhausted. I have mentioned that the area of particular environmental concern is that adjacent to the Darch Brook. The applicant has yet to clear the vegetation in that area. There remain engineering plans and specifications for the construction of roads and other subdivisional works, encompassing that area, which have yet to be approved. I have earlier mentioned that the Shire Council considers that, by virtue of s 41(2) of the Act, it is unable to make any decision in respect of the approval of those plans and specifications until such time as it receives an authority under s 45(7).
46 Mr Stein's answer to this proposition is that the Shire Council is not, in that respect, a "decision-making authority" as defined in s 3 of the Act. That term is there defined to mean:
"public authority empowered by or under -
(a) a written law; or
(b) any agreement -
(i) to which the State is a party; and
(Page 18)
- (ii) which is ratified or approved by an Act,
to make a decision in respect of any proposal …".
47 He submits that the Shire Council is not empowered by any written law or agreement of the kind specified to make any of those decisions which are now outstanding. He contends that the Shire Council has only an administrative function, not specifically provided for by any legislation, to ensure that construction takes place to its satisfaction and in accordance with appropriate specifications. I have earlier referred to his submissions with respect to the proper construction of s 20D of the Town Planning and Development Act.
48 It seems to me that there is a requirement, contained within s 20D, that the Shire Council, as the "responsible authority", must prepare specifications for the construction of roads within the area in question and for filling and drainage works within that area and that, of itself, would involved the making of a "decision that could have the effect of causing or allowing the proposal to be implemented" for the purposes of s 41(2) of the Act. In any event, the Shire Council, as with all local government authorities, is a statutory authority acting under the provisions of the Local Government Act 1995. It consequently falls within the definition, in that it is a public authority empowered by or under a written law to make a decision in respect of a proposal.
Had the "proposal" previously been referred to the EPA?
49 Next, the applicant contends that, even if the approved subdivision is still a "proposal" for the purposes of the Act, that subdivision is essentially the same as the 1999 outline development plan and that plan had previously been referred to the EPA. That being so, it contends, there can be no second referral by virtue of s 38(5) of the Act.
50 There is, in my opinion, a fundamental difficulty with this proposition. The 1999 outline development plan was never referred to, or assessed by, the EPA. The only prior referral was one of the report (and not the 1999 plan itself) which was made by the Shire by way of its letter dated 3 February 2000 to the DEP. I have earlier said that the DEP did not treat that referral as one to the EPA and did not pass it on to the EPA, which consequently never assessed it.
51 The applicant seeks to overcome this difficulty by contentions to the effect that the Shire's letter to the DEP amounted to a referral under s 38 of the Act, that the DEP was an agent of the EPA for the purpose of
(Page 19)
- receiving the referral and that the letter was treated as a s 38 referral upon its receipt by the DEP. Counsel for the applicant contends, in any event, that the DEP could not unilaterally choose to treat a referral under s 38 as something less than that. Otherwise, he submitted, a relatively lowly placed official could effectively prevent a referral from advancing to the EPA in circumstances never contemplated by the Act, albeit only in circumstances in which the referral was made through the DEP and was not made directly to the EPA.
52 There is a clear distinction between the EPA which, by virtue of s 7(2) of the Act, consists of five members appointed by the Governor on the recommendation of the Minister, and the DEP, which is a department of the Public Service through which the Act is administered (s 3(1)). Under s 22(1) of the Act "There shall be appointed … a chief executive officer and such other officers as are necessary to assist the Minister, the ... [EPA] and the Chief Executive Officer in the performance of their respective functions". It is clear, from what has been said by Mr Walsh in his affidavit, that, in practice, the DEP performs functions other than merely by way of assistance to the EPA as, for example, the provision of advice to local government, notwithstanding that, as counsel for the applicant pointed out, it has no express statutory power to give advice to local authorities on environmental matters.
53 It seems to me, firstly, that the letter from the Shire was not a referral under s 38(1) of the Act. It was not expressed to be so. All that the letter did was to invite the DEP (not the EPA) to assess the application and to forward "any comments" it wished to make within 30 days. The letter went on to say that if no response was received within that time period, it would be assumed that the DEP had no comments in relation to, or objections to, the proposal. Moreover, as I have said, the 1999 outline development plan was not itself attached to the letter, but only the report and its annexures. While one of those annexures was a structure plan containing a design concept for lots in the Riverslea development, that document was incomplete and fell far short of amounting to a subdivision plan.
54 Under the Act, the purpose of a referral of a proposal to the EPA under s 38 is to enable that body to consider whether or not the proposal "should ... be assessed by it" (and its decision whether or not to assess the proposal must be notified within 28 days after referral), although, if it decides not to assess the proposal, it may, under s 40(1)(a), nevertheless give advice and make recommendations to the proponent, any relevant decision-making authority or any other relevant person on the
(Page 20)
- environmental aspects of the proposal. Then, if it decides to assess the proposal, it is empowered, for that purpose, inter alia to require the provision of further information or even to require the proponent to undertake an environmental review and to report thereon to the EPA (s 40(2)(a) and (b)). After completing its assessment it must, within 6 weeks, prepare a report for the Minister under s 44. A request to the DEP merely to assess the application and forward any comments within 30 days of the date of the letter is consequently not consistent with the scheme of the Act in respect of referrals to the EPA itself. Also, if the Shire had intended the referral to be one to the EPA under s 38 of the Act, it could hardly have treated the lack of a response within 30 days as giving it the green light to allow the application to proceed when, under s 41(2) of the Act, it would be precluded from making any decision that could have the effect of causing or allowing the proposal to be implemented until one or other of the events referred to in s 41(2)(c) and s 41(2)(d) had occurred.
55 In these circumstances, and given that the report appears never to have been referred to, or seen by the EPA or its authorised delegate, I am unable to accept that there was any earlier referral even if, which it is unnecessary to decide, the report was "a proposal" for subdivision of the land in question "that … [appeared] likely, if implemented, to have a significant effect on the environment" (as to which see Re Environmental Protection Authority; Ex parte Sandbourne Holdings Pty Ltd (2002) 121 LGERA 34; [2002] WASCA 75 at [63] and [68]) and that was essentially the same proposal as that which was subsequently referred to the EPA by the Leeuwin Conservation Group Inc.
The failure to comply with the 28-day time limit
56 There remains the applicant's contention in respect of the EPA's failure to notify it of its decision to assess the subdivision plan within 28 days of its referral to the EPA.
57 I have earlier mentioned that s 40(1)(b) of the Act provides that, when a proposal is referred to the EPA under s 38, the EPA "shall":
"if it considers that the proposal should be assessed by it under ... [Part IV] –
(i) so inform in writing within 28 days after that referral –
(A) the proponent;
(Page 21)
- (B) if the proposal is not so referred by the proponent, the person by which or whom it is so referred; and
(C) any relevant decision-making authority;
and
- (ii) assess the proposal."
58 It seems that the EPA received the referral from the Leeuwin Conservation Group (Inc.) on 18 October 2002 and determined, on 23 December 2002, that the subdivision should be assessed by way of public environmental review. The applicant was notified of that decision by letter dated 24 December 2002. It is consequently plain that s 40(1)(b)(i) was not complied with.
59 The applicant contends that the requirement under s 40(1)(b)(i) is mandatory and that if the decision to assess is not made in sufficient time to comply with the notification provisions, there is no power to make any decision to assess the proposal thereafter. Counsel for the applicant supported his submission in this respect by reference to s 56(2) of the Interpretation Act 1984, which provides that, where, in a written law, the word "shall" is used conferring a function, that word must be interpreted to mean that the function so conferred must be performed.
60 I doubt that the classification of the provision as mandatory or directory is of much assistance: see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388 – 391. Nor does it seem to me that s 56 of the Interpretation Act provides any real assistance. The real question is whether, on the proper construction of the relevant provisions of the Act, the legislature should be taken to have intended that, in the event of a failure by the EPA to comply with s 40(1)(b)(i), it could not thereafter assess the proposal.
61 Mr Stein contended that it should. He relied, in that respect, on Project Blue Sky. There the High Court had to deal with provisions of the Broadcasting Services Act 1992 (Cth). A primary function given to the Australian Broadcasting Authority ("ABA") by that Act was that of developing broadcasting standards relating to broadcasting in Australia. Section 122(4) provided that the standards must not be inconsistent with the Act. Section 160(d) required the ABA to perform its functions in a manner consistent with Australia's obligations under any agreement between Australia and a foreign country. The ABA determined a standard containing a clause which was inconsistent with Australia's obligations
(Page 22)
- under the Trade Agreement with New Zealand. The Court held that s 160(d) was consequently not satisfied and, accordingly, that s 122(4) prohibited the making of the clause in question. However, the Court went on to hold (at [99]) that the best interpretation of s 160 was that, while it imposed a legal duty on the ABA, an act done in breach of its provisions was not invalid. The majority (McHugh, Gummow, Kirby and Hayne JJ) went on to say at [100], in a passage relied upon by the applicant, that:
"In a case like the present, however, the difference between holding an act done in breach of s 160 is invalid and holding it is valid is likely to be of significance only in respect of actions already carried out by, or done in reliance on the conduct of, the ABA. Although an act done in contravention of s 160 is not invalid, it is a breach of the Act and therefore unlawful. Failure to comply with a directory provision 'may in particular cases be punishable' ... . That being so, a person with sufficient interest is entitled to sue for a declaration that the ABA has acted in breach of the Act and, in an appropriate case, obtain an injunction restraining that body from taking any further action based on its unlawful action."
63 I am not persuaded that this contention is sustainable in the very different context of this legislation.
64 No doubt the intention of the legislature, in setting the time limit, was that of ensuring that the proponent, and others, were not left in limbo for an undue period of time. However, I am unable to accept that the legislature intended that, if the provision was not complied with, a proposal could no longer be assessed. As was pointed out by Mr Mitchell, it might often be the case that the EPA will require additional information in order to enable it to make a decision whether or not to assess a proposal and, in some cases it might take longer than 28 days to obtain that information (as happened in this case). Moreover, the construction contended for on behalf of the applicant appears to be inconsistent with
(Page 23)
- the provisions of s 41 of the Act which, as I have said, prevent a decision-making authority from making any decision that could have the effect of causing or allowing a proposal, once referred, to be implemented until the decision-making authority has been informed by the EPA that the proposal will not be assessed or until an authority is served on it under s 45(7). If, for example, a proposal was referred to the EPA by the WAPC (as is often the fact), then the WAPC could not, by virtue of s 41, make any decision which could have the effect of causing or allowing the proposal to be implemented even though it was too late for the EPA to give a notice under s 40(1)(a) and even though, on the construction favoured by the applicant, the EPA could not proceed to assess the proposal and hence could not issue a notice under s 45(7), the operation of s 45 being premised upon the completion of the assessment process and the publication of a report under s 44(3). In my opinion, such a result could not have been intended.
65 That it was not intended is reinforced by the provisions of s 43 of the Act. Section 43(1) provides that, in a case in which the EPA considers that a proposal referred to it under s 38 should not be assessed by it, the Minister may, after consulting the EPA, direct it to assess the proposal or, in a case in which the EPA is assessing or has assessed a proposal, that the Minister may, after consulting the EPA, require it to assess or re-assess the proposal more fully. By virtue of s 43(2), s 40(1)(b) applies to the assessment or re-assessment of a proposal under a direction given under s 43(1) as if that direction was a referral under s 38. It could not have been intended that the Minister's direction could be nullified by a failure to give notice within the 28 day period set by s 40(1)(b).
66 Moreover, that the legislature did not intend the consequence argued for by counsel for the applicant, seems to me to be apparent from the provisions of s 40(1)(b) itself, in that the requirement to assess the proposal is provided for by a provision separate to that requiring the written notification of the decision to assess to be made within 28 days after the date of the referral and is not expressed to be conditional upon a decision being made to assess the proposal within 28 days of referral and upon that decision being notified within that time. Rather, it seems to me that the legislature intended only to impose a duty on the EPA to act within the specified time, with the consequence that a failure to comply with that duty might result in a mandatory injunction or a writ of mandamus requiring it forthwith to make a decision and to give the requisite notices. Were the situation otherwise, then, in a case of inadvertence or oversight, the EPA would effectively be precluded from
(Page 24)
- assessing a proposal which might have far-reaching environmental consequences. In my opinion, that could not have been intended.
Conclusion
67 It follows, for these reasons, that in my opinion the order nisi should be discharged and the application for a declaration dismissed.
68 MCKECHNIE J: For the reasons expressed by Steytler J, I agree that the order nisi should be discharged.
11
5
3