Greenland Resources Pty Ltd v Contaminated Sites Committee
[2022] WASC 280
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: GREENLAND RESOURCES PTY LTD -v- CONTAMINATED SITES COMMITTEE [2022] WASC 280
CORAM: ALLANSON J
HEARD: 23 MARCH 2022
DELIVERED : 30 AUGUST 2022
FILE NO/S: CIV 1337 of 2020
BETWEEN: GREENLAND RESOURCES PTY LTD
Applicant
AND
CONTAMINATED SITES COMMITTEE
Respondent
FILE NO/S: CIV 1338 of 2020
BETWEEN: GREENLAND RESOURCES PTY LTD
Applicant
AND
CEO, DEPARTMENT OF WATER AND ENVIRONMENTAL REGULATION
Respondent
Catchwords:
Judicial review - Practice and procedure - Where applicant applies for leave to adduce expert report - Whether proposed evidence relevant to grounds of review - Whether court should exercise its discretion to grant leave where court may be assisted by expert evidence on technical matters
Legislation:
Commercial Sites Regulations 2006 (WA)
Contaminated Sites Act 2003 (WA)
Result:
Leave to adduce expert report granted
Category: B
Representation:
CIV 1337 of 2020
Counsel:
| Applicant | : | M J Keating |
| Respondent | : | P D Spragg |
Solicitors:
| Applicant | : | Williams & Hughes |
| Respondent | : | State Solicitor's Office |
CIV 1338 of 2020
Counsel:
| Applicant | : | M J Keating |
| Respondent | : | P D Spragg |
Solicitors:
| Applicant | : | Williams & Hughes |
| Respondent | : | State Solicitor's Office |
Cases referred to in decision:
Gilbank v Bloore [2012] NSWLEC 172
SZQYM v Minister for Home Affairs [2019] FCA 779
ALLANSON J:
Introduction
Greenland Resources Pty Ltd is the applicant in two applications for judicial review of decisions made under the Contaminated Sites Act2003 (WA). The first decision was made by the CEO of the Department of Water and Environmental Regulation; the second, on appeal, by the Contaminated Sites Committee.
Greenland applies for leave to adduce expert evidence on the hearing of the applications. The application for leave is opposed.
The court dealt with the application for leave as a preliminary question.
In these reasons, all references to legislation are to the Contaminated Sites Act.
The legislation
The Contaminated Sites Act is, by its long title, an Act for the identification, recording, management and remediation of contaminated sites.[1]
[1] Unless otherwise stated, all references to legislation are to that Act and the Contaminated Sites Regulations 2006 (WA). References to the Department are to the Department of Water and Environmental Regulation, and references to the CEO are to the CEO of that department.
The term 'contaminated' is defined in s 4:
(1)In this Act —
contaminated, in relation to land, water or a site, means having a substance present in or on that land, water or site at above background concentrations that presents, or has the potential to present, a risk of harm to human health, the environment or any environmental value.
Classification of sites
Part 2 deals with reporting, classifying and recording of sites.
By s 13(3):
(3)The CEO is to classify a site as of the classification set out in the first column of Schedule 1 which corresponds, in the CEO's opinion, on reasonable grounds, to the criterion that applies to the site set out opposite the classification in the second column of that Schedule.
Section 13(4) sets out matters which the CEO is to take into account 'with respect to the identification, assessment, classification or management of contamination'. Those matters include any relevant guidelines, and currently accepted industrial standards.
Schedule 1 sets out seven classifications and the criteria for each. One of the available classifications is 'possibly contaminated - investigation required'. If that classification is given, it remains until the site is given another classification.[2]
Appeals to the Committee
[2] Section 16.
An owner or occupier who has been given notice of a site classified as 'possibly contaminated - investigation required' may appeal against the classification.[3] By s 18(4), the appeal is to be brought, dealt with and determined in accordance with Part 8.
[3] Section 18(2).
The appeal is instituted by lodging written notice of the appeal 'setting out the grounds and facts upon which the appellant relies'.[4]
[4] Section 79(1).
An appeal is heard by a Contaminated Sites Committee established pursuant to s 33.
By s 34:
In making a decision under this Act the committee —
(a)is to consult the CEO and may consult any other person it considers necessary to consult; and
(b)is to act according to equity, good conscience and the substantial merits of the case, without regard to technicalities or legal forms, is not bound by the rules of evidence and is to conduct its inquiries in any manner it considers appropriate.
The Contaminated Sites Committee, on hearing an appeal may:
(a)affirm the classification, decision or requirement appealed against;
(b)substitute or vary the classification, decision or requirement appealed against; or
(c)set aside the classification, decision or requirement and make a decision or substitute a requirement, notice or classification that the committee thinks just.[5]
[5] Section 82(1).
The decision of the appeal committee is final and without appeal.[6]
[6] Section 82(2).
The facts
Greenland is the occupier of a property in Oakford, sometimes referred to as Lot 6. The property has been used as a vineyard since 2001.
On 17 November 2017, the Department advised Greenland that the vineyard on the property had been classified as 'possibly contaminated - investigation required'. The formal notice under s 15(1) was dated 30 November 2017.
Greenland lodged an appeal on 12 January 2018.
On 29 July 2019, Greenland was advised that the Committee had dismissed its appeal, and was given written reasons for the decision.
On 6 March 2020, Greenland commenced proceedings for judicial review of the decision and conduct of the CEO in issuing the classification notice,[7] and the decision of the Committee dismissing its appeal.[8] It seeks certiorari to quash each decision, and a declaration that the classification notice was invalid.
[7] CIV 1338 of 2020.
[8] CIV 1337 of 2020.
The decisions under review
The decision of the CEO
The notice dated 30 November 2017 set out reasons for the decision to classify the land.[9] The notice stated that the site was classified following a groundwater investigation commissioned by the Department during August 2017 and that it was based on information submitted by November 2017.
The decision of the Committee
[9] Affidavit of Daniel Joseph Avila, sworn 7 April 2020, DJA 2.
In its notice of appeal, Greenland contended that the reasons for classification wrongly concluded there were grounds to indicate possible contamination and that the contaminants of concern identified in the groundwater tested in August 2017 were not 'contamination' as defined by the Act and reg 5(2).[10]
[10] Regulation 5(2)(f) provides an exception where the only substance that is present in or on that land, water or site at above background concentrations that presents, or has the potential to present, a risk of harm to human health, the environment or any environmental value is present as a direct result of the correct application of a fertiliser, herbicide or pesticide to land.
On 21 May 2018, the CEO provided a report under s 80 of the Act, to which Greenland responded with supplementary information. Each of the CEO and Greenland provided further responses before the Committee decided the appeal.
On 20 July 2019, the Committee published its decision.[11] In its statement of reasons, the Committee directly addressed six matters raised by Greenland, although not all of them clearly correspond to the written grounds of appeal.
[11] Affidavit of Daniel Joseph Avila, sworn 7 April 2020, DJA 4.
First, the Committee found that the ordinary meaning of 'fertiliser' in reg 5(2)(f) did not include compost but was intended to apply to artificial fertilisers, the chemical composition of which is known and the recommendations for the use of which are informed by field trials.
Second, the Committee found there was need for further information regarding how the level of PFAS[12] related to background levels, and the use of guideline values for assessing PFAS impacts to aquatic ecosystems.
[12] Perfluoroalkyl and Polyfluoroalkyl Substances - a group of manufactured chemicals.
Third, the Committee referred to the claim by Greenland that there were no endangered aquatic ecosystems within remote distances from the site. The Committee reasoned that, 'to the extent that [Greenland] has valid grounds for questioning the classification of the wetland, this supports the need for further investigation and the appropriateness of the classification'. The Committee accordingly dismissed the grounds of appeal related to the appropriateness of water quality guidelines used.
Fourth, the Committee considered the grounds relating to drinking water quality guidelines, and Greenland's contention that there was no realistic prospect the vineyard groundwater would be used for drinking water. The Committee found that the drinking water criteria were relevant, apparently adopting the response of the CEO.
Fifth, the Committee found that Greenland's questions about the views expressed in material before the Committee regarding background levels, direction of groundwater flow, and soil sampling showed the need for further information in support of the classification.
Sixth, the Committee referred to grounds of appeal questioning how the contamination may have occurred and its possible sources. The Committee held that the classification of the site 'related significantly to the results of a groundwater investigation and the substances identified'. Causation, or how those substances came to be present, was not pertinent to the correctness of the classification.
Finally, the Committee noted other matters raised by Greenland which it held to be irrelevant to whether or not the classification was correct.
The proposed expert evidence
By chamber summons filed on 24 February 2021, Greenland applied for leave to adduce an expert report of Dr Peter Keating. The report was included as an attachment to an affidavit of Daniel Joseph Avila, sworn 21 January 2021. Mr Avila is a director of Greenland.
At a hearing on 15 April 2021, I told counsel for Greenland that leave would not be granted for the evidence to be adduced in that way. I further advised that, for the purpose of the application for leave, I expected that the proposed expert report should state:
(1)the specific questions on which the proposed expert would express their opinion, identifying each issue within the grounds of the applications to which the proposed expert evidence was directed;
(2)any assumptions that the proposed expert would be asked to make in providing their opinion on each question; and
(3)any potentially contentious facts within the evidence filed in the applications which the applicant contended the court should find in favour of the applicant and which are relevant to the opinion of the expert.
After a significant delay, Greenland filed an affidavit of Dr Keating. The application for leave came before the court again on 23 March 2022. It was apparent from the submissions of the parties that they had no shared understanding of the meaning of the grounds of review.
Both parties, however, wished to proceed on that day, with Greenland submitting that the application should be granted once it had amended its grounds to correspond with the arguments it sought to put. At the conclusion of the hearing, I reserved on the basis that I would determine the application for leave when I had seen the applications to amend the grounds of review.
On 22 August 2022, the applicant filed amended grounds in each action. It is not necessary to set out the original grounds. They may, however, later prove relevant in considering the costs of the application for leave.
The amended grounds
The challenge to the decision of the CEO
The applicant relies on three grounds (ground 5 being an application for leave to proceed out of time). Ground 1 is relevant to the application to adduce expert evidence. The applicant alleges jurisdictional error on two bases:
(1)the CEO failed to give, proper, genuine, and realistic consideration to whether substances found on the site presented, or had the potential to present, a risk of harm to human health, the environment or any environmental value and, accordingly, whether the site was possibly contaminated;
(2)alternatively, the CEO's conclusion in that regard was illogical or irrational.
The challenge to the decision of the Committee
The applicant relies on four grounds.
Ground 2 alleges, in substance, that the Committee failed to give proper, genuine, and realistic consideration to the applicant's ground of appeal that the CEO was wrong in her conclusion that substances found on the site presented, or had the potential to present, a risk of harm to human health, the environment or any environmental value.
Ground 3 alleges the Committee failed to re-exercise the power conferred on the CEO and its decision was vitiated by the same error as the CEO. The ground is very confusingly worded, both in the body of the ground and the particulars. It appears to allege that the role of the Committee was similar to this court's role on an application for judicial review; that is, the Committee was to determine whether the CEO gave proper consideration to specified matters and to whether the CEO's decision was illogical or irrational.
Despite those difficulties, which may require the applicant to consider further amendment, the central part of the applicant's case can be seen to be the allegation that each decision is irrational.
The proposed evidence
Dr Keating's report addresses these questions:
(1)whether there was or is any reason to believe the groundwater under the site may contain a substance at above background concentrations that presents, or has the potential to present, a risk of harm to human health, the environment or any environmental value;
(2)the relevance to that question of the following nine considerations:
(a)past agricultural practices in the locality;
(b)past investigations into groundwater quality in the locality;
(c)the compost stockpiles located on Lot 6 when the Groundwater Assessment Report was prepared;
(d)the beneficial uses of groundwater in the locality of Lot 6 (including possible future uses);
(e)the relative location of the nearest public drinking water source;
(f)the suitability of ground water in the locality for use as a public drinking water source;
(g)the nature of the 'conservation category wetlands' in the area;
(h)the possibility of deep groundwater contamination from a shallow groundwater under Lot 6;
(i)any areas downstream that may be adversely affected by groundwater flowing from the site; and
(3)whether he disagreed with 25 identified statements in the report prepared by the Department of Water and Environmental Regulation, titled Compost Stockpiles at 123 King Road Oakford, which was before the Committee in the appeal.
The respondents' reasons for opposing leave
Although its submissions were formulated in response to the original grounds of each application, the respondents' primary position remains unchanged. It opposes leave on the basis that the report of Dr Keating is irrelevant to the court's review of the Committee's decision.
In particular, the respondent submitted:
(1)Dr Keating's report is directed to the Committee's treatment of questions of causation of possible contamination, and is to that extent, irrelevant. The respondent submitted that causation is not relevant. Alternatively, if causation is relevant, and the Committee erred in finding it was not relevant to the correct classification of the site, the remedy will be to set aside the decision of the Committee. The Committee will then be required to determine the appeal according to law. The statutory appeal is the appropriate remedy for the applicant in its challenge to the decision of the CEO. Judicial review of the decision of the CEO should only be undertaken where the statutory right of appeal has been exhausted.
(2)The applicant is attempting to circumvent the appeal process under the Contaminated Sites Act by having the court stand in the shoes of the Committee and consider technical evidence relating to causation of possible contamination.
The respondent further submitted that, having regard to the requirement for leave to adduce expert evidence, it was not sufficient for the applicant to show that the evidence was relevant and admissible. The applicant must also show that it is reasonably required to resolve the proceedings.[13]
[13] Gilbank v Bloore [2012] NSWLEC 172. A decision on a statutory regime quite different from that applicable in this case.
The relevance of Dr Keating's report to the grounds of review
The applicant has now made clear (despite continuing confusion in its grounds of application) that it challenges the result of both the classification decision by the CEO, and the determination on appeal by the Committee, on the ground that the result of each decision is unreasonable, and therefore not a proper exercise of power under the Act. In this context, the authorities often use 'unreasonable' and 'irrational' interchangeably.
An allegation that the result of a decision is unreasonable is invariably fact dependent. The applicant may establish unreasonableness by proving that, on the facts which were before the decision maker, the challenged decision could not have reasonably been made.
The ground of irrationality does not enable the applicant to challenge the merits of the decisions. Legal unreasonableness is concerned with the lawful exercise of power and the role of the court remains supervisory. It does not permit an applicant to relitigate the factual issues on which it failed before the administrative decision maker.
A decision may, however, be challenged as legally unreasonable on outcome-related grounds. A decision may be held to be unreasonable if the result lacks an evident and intelligible justification, having regard to the subject matter, scope and purpose of the statutory power. There is no doubt that the bar is high, but it is not insurmountable. In SZQYM v Minister for Home Affairs, Allsop CJ found that a mistake as to the evidence of a 'central fact' was of such gravity that it could not be regarded as authorised as part of the task of the decision maker (in that case the Administrative Appeals Tribunal). The case was extreme, and the particular statutory regime an important consideration. His Honour said the assessment of evidence and material before it was the essence of the task of the Tribunal, and the erroneous finding was not open. His Honour concluded that the Tribunal had not carried out its statutory task and given consideration to the assessment of the evidence and material before it.[14]
[14] SZQYM v Minister for Home Affairs [2019] FCA 779 [139] - [140].
Under the Act, an appeal is instituted by lodging written notice of the appeal 'setting out the grounds and facts upon which the appellant relies'.[15] The Committee is required to act according to equity, good conscience and the substantial merits of the case. The Committee is required to determine the appeal, either by affirming the classification, substituting or varying it, or setting it aside and making a decision that the Committee thinks just. In deciding whether to affirm the decision of the CEO, the Committee must decide whether there are reasonable grounds for the classification of the site as 'possibly contaminated'.
[15] Section 79(1).
A central argument in the applicant's case is that, in deciding whether there are reasonable grounds for the classification of the site, the Committee has not carried out its statutory task because it has failed to consider and understand the evidence before it. That is the reason for seeking to adduce Dr Keating's evidence. I am satisfied that the evidence is relevant to whether the Committee failed to carry out its task according to law.
While relevance is necessary, it is not sufficient. The court must also consider whether it is appropriate to exercise its discretion in favour of the applicant. There are two reasons why I would grant leave: first, the proposed evidence is central to the applicant's case that the decision is unreasonable; second, it relates to technical matters, outside the knowledge of the court, and on which the court may be assisted by expert opinion.
I am satisfied that the applicant should not be precluded from seeking to establish its case through expert evidence, provided the applicant keeps within the requirement that the review is directed to the lawfulness and not the merits of the decision.
I am presently concerned only with the general question of whether the applicant should have leave to adduce the evidence. It is not appropriate to consider whether objection might be made to particular assumptions or parts of the report. The application was not argued on that basis.
In giving leave, I should not be seen as expressing any view on whether the challenge to the decision of the CEO can be maintained where the applicant exercised its statutory right of appeal to the Committee, or what would be the effect of setting aside the decision of the Committee. The two actions will be heard together, and those questions can be dealt with at the final hearing.
The applicant has leave to adduce the report of Dr Keating.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TB
Associate to the Honourable Justice Allanson
30 AUGUST 2022
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