Greenland Resources Pty Ltd v Contaminated Sites Committee [No 2]
[2024] WASC 162
•9 MAY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: GREENLAND RESOURCES PTY LTD -v- CONTAMINATED SITES COMMITTEE [No 2] [2024] WASC 162
CORAM: LUNDBERG J
HEARD: 30 JUNE 2023
DELIVERED : 9 MAY 2024
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 - Decision made by the Chief Executive Officer of the Department of Water and Environmental Regulation to classify land under s 13 of the Contaminated Sites Act 2003 (WA) - Land classified as 'possibly contaminated - investigation required' - Examination by the Department of the effect of compost stockpiles and effects on groundwater - Expert reports prepared and submitted to the Department - Decision appealed to the Contaminated Sites Committee under s 79 of the Contaminated Sites Act 2003 (WA) - Appeal dismissed by the Contaminated Sites Committee - Decision of the Contaminated Sites Committee is final pursuant to s 82(2) of the Contaminated Sites Act 2004 (WA)
Judicial review - Dual applications for judicial review under Order 56 of the Rules of the Supreme Court 1971 (WA) brought against both the decision of the Chief Executive Officer and the decision of the Contaminated Sites Committee - Consideration of the utility of seeking judicial review against primary decision when party has already exercised right of appeal and is seeking judicial review thereof - Classification of the land rests upon the legal effect of the Committee's decision which is final subject to judicial review - Application for judicial review of the decision of the Chief Executive Officer dismissed as having no utility
Judicial review - Consideration of the nature of appeal to the Contaminated Sites Committee - Whether Contaminated Sites Committee has a duty to give reasons - Proper, genuine and realistic consideration of the appeal - Alleged errors not established - Judicial review application dismissed
Judicial review - Extensions of time required by the applicant
Statutory construction - Scope of exemptions in the Contaminated Sites Regulations 2006 (WA) - Land exempt from being classified as contaminated where a 'direct result of the correct application of a fertiliser' - Whether term refers only to chemical fertilisers or includes compost and organic products - Narrow construction of the provision to be preferred
Legislation:
Biosecurity and Agriculture Management Act 2007 (WA), s 6
Contaminated Sites Act 2003 (WA), s 3, s 4, s 8, s 10, s 13, s 33, s 34, s 39, s 49, s 79, s 80, s 81, s 82
Contaminated Sites Regulations 2006 (WA), r 5
Environmental Protection (Packaged Fertiliser) Regulations 2010 (WA), r 4
Environmental Protection Act 1986 (WA), s 3, s 3A
Rules of the Supreme Court 1971 (WA), O 56 r 2
State Administrative Tribunal Act 2004 (WA), s 27 and s 29
Result:
Extension of time granted in CIV 1337 of 2020, but application itself dismissed.
Extension of time refused in CIV 1338 of 2020 and application otherwise dismissed.
Category: B
Representation:
CIV 1337 of 2020
Counsel:
| Applicant | : | T Lettenmaier |
| Respondent | : | P D Spragg |
| Amicus Curiae | : | J D Berson |
Solicitors:
| Applicant | : | Williams & Hughes |
| Respondent | : | State Solicitor's Office |
| Amicus Curiae | : | State Solicitor's Office |
CIV 1338 of 2020
Counsel:
| Applicant | : | T Lettenmaier |
| Respondent | : | P D Spragg |
Solicitors:
| Applicant | : | Williams & Hughes |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
AMG (WA) Pty Ltd v Minister for Environment the Honourable Stephen Dawson MLC [2020] WASC 197
BP Australia Pty Ltd v Contaminated Sites Committee [2012] WASC 221
Cape Range Electrical Contractors Pty Ltd v Austral Construction Pty Ltd [2012] WASC 304
Centex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79
Coffey LPM Pty Ltd v The Contaminated Sites Committee [2014] WASC 504
Conservation Council of WA Inc v Chairman, Environmental Protection Authority [2022] WASC 58
Cowie v Wood [2021] WASC 341
Erujin Pty Ltd v Jacob [2018] WASCA 212; (2018) 53 WAR 452
Forrest & Forrest Pty Ltd v Honourable Marmion, Minister for Mines and Petroleum [2018] WASCA 32
Greenland Resources Pty Ltd v Contaminated Sites Committee [2022] WASC 280
LS v Mental Health Review Board [2013] WASC 128
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497
Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; (2019) 265 CLR 285
Public Service Board of NSW v Osmond (1986) 159 CLR 656; (1986) 63 ALR 559
Shi v Migration Agents Registration Authority [2008] HCA 1; (2008) 235 CLR 286
Viva Energy Australia Pty Ltd v Contaminated Sites Committee [2018] WASC 89
Webb v Tang [2023] WASCA 119
Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480
Table of Contents
A. Introduction and overview
The land
The administrative decisions under challenge
The judicial review proceedings
B. Legislative framework
Classification of sites
Appeals
Relevant statutory concepts and definitions
C. Factual context
Evidentiary materials
Historical background
Investigation of Lot 6
The CEO's Decision
Appeal to the Committee
Committee's Decision
D. The expert's report
E. Applicant's grounds of review
Application CIV 1337
Application CIV 1338
F.Nature of an appeal under s 79(1) of the Act
G. Judicial review of the Committee's Decision - CIV 1337
Ground 1 - Consideration
Ground 1 - Disposition
Grounds 2 and 3 - Consideration
Grounds 2 and 3 - Disposition
Ground 4 - Consideration
Ground 4 - Disposition
Discretion to refuse relief
Extension of time
H. Judicial review of the CEO's Decision - CIV 1338
I. Conclusions and orders
ATTACHMENT A AERIAL PHOTOGRAPH OF LOTS 6, 35 AND 36
ATTACHMENT B AERIAL PHOTOGRAPH OF STOCKPILES ON LOT 6
ATTACHMENT C COMMITTEE'S DECISION MADE ON 29 JULY 2019
LUNDBERG J:
A. Introduction and overview
Greenland Resources Pty Ltd (Greenland) is the applicant in two applications to this Court seeking judicial review of two administrative decisions made under the Contaminated Sites Act 2003 (WA) (the Act).[1] The object of that legislation is to protect human health, the environment and environmental values. The legislation does this 'by providing for the identification, recording, management and remediation of contaminated sites in the State'.[2]
[1] I will make reference later in the reasons to the Contaminated Sites Regulations 2006 (WA) (Regulations).
[2] Act, s 8.
The decisions which are the subject of these judicial review applications concern land in Oakford from which the applicant has operated a garden supplies and vineyard management business. The decisions focus on the possibility of contamination on the land, the presence and use of compost stockpiles on the land, and the potential effects on the groundwater in the location.
In essence, the land in question (which is referred to as Lot 6) has been classified under s 13 of the Act as 'possibly contaminated - investigation required'. These proceedings are thus primarily concerned with the regime in pt 2 of the Act, which deals with 'Reporting, classifying and recording sites', rather than pt 3 which addresses 'Remediation of contaminated sites'.
The classification of the land as only 'possibly' contaminated, and that 'investigation is required', has been given insufficient attention by the applicant in formulating its challenges, in my view. Allied to this,
I accept the submission made by the Chief Executive Officer of the Department of Water and Environment Regulation (the CEO)[3] that the classification of the land in this manner under s 13 of the Act does not impose enforceable obligations on the recipient of the notice, in contradistinction to the giving of an investigation notice under s 49(2) of the Act. The applicant was not served with an investigation notice in respect of Lot 6.
[3] The name of the Department has been altered over time. I will simply refer to the Department to capture each of the changing designations.
Further, the approach urged upon this Court by the applicant, in its characterisation of the appellate function of the Contaminated Sites Committee (the Committee), is tantamount to requiring a conclusion that such appeals require a merits review. I do not accept that characterisation.
Even more fundamentally, the applicant has invited the Court to undertake a 'wholesale review of the decision to classify the site', to adopt the language used in the CEO's written submissions dated 7 March 2023 (CEO's Submissions), including through reliance on a fresh expert report.[4] That is inconsistent with the nature of judicial review proceedings.
[4] CEO's Submissions [6].
In my respectful view, these overarching misapprehensions on the part of the applicant provide a significant answer to many of the factual and causation attacks mounted by the applicant in these proceedings, as I will explain.
In order to make these reasons more digestible, I will at the outset briefly describe the land in question and the uses to which it has been put, and provide a broad overview of the issues in dispute. Further detail is included in Section C of these reasons.
The land
The land consists of Lot 6, Lot 35 and Lot 36, which for convenience I will refer to as the three lots. The primary property the subject of these judicial review proceedings is Lot 6, which is more commonly referred to as 123 King Road, Oakford.[5] Lot 6 is adjacent to, and south of, Lot 35 and Lot 36 on Abernethy Road, Oakford.[6]
[5] Being Lot 6 on Plan 13938 on Certificate of Title Volume 1643 Folio 823.
[6] For ease of reference and to show the relative location of the properties, two aerial photographs are included in these reasons as Attachment A and Attachment B, which are further explained in section C of these reasons.
Only Lot 6 is the subject of the classification decision which forms the basis of these proceedings.
The three lots occupy an area of approximately 21.3 hectares, and consist of a vineyard, a cleared area, and native bushland. Historically, the area surrounding these lots has been rural in nature, having been used for various agricultural and related commercial agri‑business purposes over the years. The three lots were originally used for cattle-grazing before being developed as a vineyard.
The three lots are owned by Mr Joseph Avila and Mrs Naline Avila, with family‑related companies operating businesses from the lots, namely Greenland and Bio‑Organics Pty Ltd (Bio‑Organics). Mr Joseph Avila and Mrs Naline Avila, and their son, Mr Benjamin Avila, are the directors of Bio‑Organics. Their other son, Mr Daniel Avila, is the director and secretary of Greenland and also a manager with Bio‑Organics.[7]
[7] The decision of the Contaminated Sites Committee incorrectly identifies the applicant, Greenland, as the proprietor of Lot 6. I understand nothing turns on this misstatement.
Presently, the three lots are occupied by Greenland which operates its business from these sites, which includes the use of compost stockpiles. It has been the use of compost stockpiles and manufacture of compost which has been at the centre of the regulatory examination of these properties.
Historically, the southern portion of Lot 36 had been occupied by Bio‑Organics and used to manufacture compost and soil blending products. However, in June 2014, following contamination concerns being identified, the Department issued Bio‑Organics with a notice that required it to remove all compost stockpiles from Lot 36. It is not in dispute that, in March 2016, Greenland then began to store mature compost stockpiles on the adjacent lot, being Lot 6, and used compost from these stockpiles for the purpose of the vineyards on that lot.
The largest of the stockpiles on Lot 6 is some 120 m in length, 20 m wide and 3 m high.
The regulatory focus on the compost stockpiles and groundwater has seen numerous, highly detailed and technical reports prepared as to the impact of these stockpiles. These reports, which were in evidence before me, have examined the possibility that leachate from the stockpiles has reached the groundwater in the region, including nutrients such as concentrated nitrate, metals such as copper and zinc, and perfluoroalkyl and polyfluoroalkyl substances (commonly referred to as PFAS).
The administrative decisions under challenge
Against this background, there are two administrative decisions under challenge by the applicant in these proceedings.
The first decision was made by a delegate of the CEO on 17 November 2017 (the CEO's Decision).[8] That decision is the subject of proceeding CIV 1338 of 2020. In essence, after a groundwater investigation commissioned by the Department, the Department advised the applicant that Lot 6 had been classified under s 13 of the Act as 'possibly contaminated - investigation required'. In its formal reasons, dated 30 November 2017, the CEO identified that:
Nutrients (nitrate and total nitrogen), perfluoroalkyl and polyfluoroalkyl substances (PFAS) and metals (copper and zinc) were present at concentrations exceeding criteria for the protection for freshwater aquatic ecosystems, long-term agricultural irrigation and/or drinking water.
[8] Second Avila Affidavit, Attachment DJA-1. Strictly speaking, it is a decision of the delegate of the CEO.
On 30 November 2017, the Department issued a classification notice pursuant to the Act, setting out the reasons for the classification made on 17 November 2017, and the action required by the applicant (Classification Notice).[9]
[9] Second Avila Affidavit, Attachment DJA-2.
One of the consequences under the legislation which arises from a classification decision is that a memorial may formally be lodged on the title. So it was that, on 5 June 2018, the Department caused a memorial to be registered against Lot 6, in accordance with s 58(1)(a)(i) of the Act.[10]
[10] The memorial recorded the following on the title: 'Under the Contaminated Sites Act 2003, this site has been classified as 'possibly contaminated - investigation required'. For further information on the contamination status of the site, please contact Contaminated Sites at the Department of Water and Environmental Regulation'. See Third Avila Affidavit, Attachment DJA 3 (Memorial).
Pursuant to s 79(1) of the Act, Greenland appealed the CEO's Decision to the Contaminated Sites Committee (the Committee).[11] That appeal was ultimately dismissed. The dismissal of the appeal by the Committee is the second decision which is the subject of these proceedings, being the decision of the Committee made on 29 July 2019 (the Committee's Decision).[12]
The judicial review proceedings
[11] Second Avila Affidavit, Attachment DJA-3 (Appeal Form).
[12] Second Avila Affidavit, Attachment DJA-4.
These two proceedings were commenced in this Court on 6 March 2020. Through these proceedings, Greenland seeks judicial review of the CEO's Decision to issue the Classification Notice (in CIV 1338) and, further, seeks judicial review of the Committee's Decision to dismiss its appeal (CIV 1337).
The proceedings thus involve a somewhat unusual feature, namely that the applicant seeks to challenge not only the original decision made in late 2017 (the challenge to which is well out of time), but also the decision on appeal, made in July 2019. In light of the submissions put against the applicant, counsel for Greenland acknowledged the inherent difficulties with this approach and thus only faintly pressed the grounds in CIV 1338.[13] His approach in this regard was quite proper, in my respectful view.
[13] ts 91 - 92.
The grounds upon which Greenland seeks judicial review have been amended over time. The latest grounds on which Greenland maintains the CEO's Decision and the Committee's Decision should be set aside are detailed in, respectively, the Further Amended Application for Judicial Review in CIV 1338 (the Application CIV 1338)[14] and the Further Amended Application for Judicial Review in CIV 1337 (the Application CIV 1337).[15]
[14] Application for judicial review dated 22 August 2022 in CIV 1338 (Folio 44).
[15] Application for judicial review dated 23 September 2022 in CIV 1337 (Folio 47).
The applicant filed detailed and overly lengthy submissions in support of the applications, dated 13 February 2023. These submissions are 46 pages in length, across 181 single‑spaced paragraphs. These submissions were filed in substitution for the original submissions dated 21 January 2021 and 10 February 2021, the former of which ran for 54 pages, across 241 single‑spaced paragraphs. The length and density of the applicant's submissions has, with respect, rendered the task of considering these judicial review applications more difficult.
Greenland requires an extension of time in each matter. In CIV 1338, the delay is quite excessive, being two years and three months (which means the proceeding was filed one year and nine months late).[16] In CIV 1337, the delay is only five weeks beyond the six‑month limit.[17]
I will return to address the question of leave after I have reviewed the strength of the applicant's contentions.
[16] See ground 5 in Application CIV 1338. The applicant relies on the First Avila Affidavit in support of the extension of time which is sought in CIV 1338.
[17] The applicant relies on the Second Avila Affidavit in support of the extension of time which is sought in CIV 1337.
For various reasons, most of which are attributable to the delays on the part of the applicant, the matters were not ready for hearing until mid‑2023. The matters were substantively heard on 30 June 2023. Mr T Lettenmaier appeared as counsel for Greenland in both matters, and Mr P D Spragg appeared as counsel for the Department in CIV 1338. In CIV 1337, the Committee filed a notice of intention to abide by the decision of the Court, following which, given the absence of a contradictor, Allanson J granted leave to the Attorney General to appear as amicus curiae (Attorney General).[18] Pursuant to that leave, Mr J D Berson appeared as counsel for the Attorney General at the hearing.
[18] Orders made by Allanson J on 12 October 2022 and ts 155.
At the conclusion of the argument I reserved my decision. These are my reasons for determining the applications in both matters. I will approach the matters by first outlining the significant aspects of the statutory regime (Section B of these reasons), then identifying the evidentiary materials which have been adduced and summarising the factual background and relevant history of the matters (Section C). I will then summarise the expert report relied upon by the applicant (Section D). I will then outline the grounds advanced by the applicant (Section E) and finally explain how I consider the matters should be resolved (Sections F, G and H).
B. Legislative framework
The object of the Act, as stated in s 8, is to protect human health, the environment and environmental values and to do so 'by providing for the identification, recording, management and remediation of contaminated sites in the State'. The statute expressly identifies three principles in this regard, namely: the polluter pays principle, the principle of full life cycle costs, and the principle of waste minimisation.
The provisions of the Act are said to be complementary to and not in derogation of the provisions of other laws of the State (s 9).
Classification of sites
Part 2 of the Act is concerned with reporting, classifying and recording sites. Section 13 expressly empowers the CEO or a delegate to classify sites. By its terms, s 13 provides:
(1)Subject to this section, the CEO is to classify a site when required to do so under this Act, and may classify a site at any other time.
(2)The CEO may classify a site more than once and a site is classified as of the classification most recently conferred on it.
(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.
(4)In classifying a site the CEO is to take into account -
(a)any relevant guidelines;
(b)currently accepted industrial standards; and
(c)any other information the CEO considers relevant,
with respect to the identification, assessment, classification or management of contamination.
(5)Before classifying a site the CEO -
(a)is to consult with the CEO of the Health Department and, if possible, reach agreement on the classification of the site; and
(b)may seek comments from any public authority or any person which or who has, in the opinion of the CEO, a direct interest in the classification of the site.
Schedule 1 to the Act is headed 'Classification of sites'. It provides for several classifications, including 'Possibly contaminated - investigation required', the criterion for which is 'There are grounds to indicate possible contamination of the site'. The full set of classifications included in Schedule 1 are as follows:
Classification
Criterion
Report not substantiated
A report under section 11 or 12 provides no ground to indicate possible contamination of the site
Possibly contaminated - investigation required
There are grounds to indicate possible contamination of the site
Not contaminated - unrestricted use
After investigation, the site is found not to be contaminated
Contaminated - restricted use
The site is contaminated but suitable for restricted use
Remediated for restricted use
The site is contaminated but has been remediated so that it is suitable for restricted use
Contaminated - remediation required
The site is contaminated and remediation is required
Decontaminated
The site has been remediated and is suitable for all uses
Section 16 of the Act provides that a site which is classified as 'possibly contaminated - investigation required' is to remain so classified until classified as one of the following:
(a)contaminated - remediation required;
(b)contaminated - restricted use;
(c)remediated for restricted use;
(d)not contaminated - unrestricted use; or
(e)decontaminated.
As explained by Smith J in Cowie v Wood,[19] the Act thus deals not only with contaminated sites but also sites that are suspected of being contaminated, and the presence of substances that present, or have the potential to present, a risk of harm to human health, the environment or environmental value. The Act also creates obligations requiring compliance by persons who on reasonable grounds believe or suspect land is contaminated.
[19] Cowie v Wood [2021] WASC 341 [42].
Pursuant to s 49 of the Act, an investigation notice may be given by the CEO but only if, in the opinion of the CEO, there are grounds to indicate the possible contamination of a site and that appropriate action to investigate, monitor or assess the site is not being, or has not been, taken.[20] No such investigation notice has been given in the present matter (a fact which the applicant accepted on appeal), but it is appropriate to set out some further detail of the statutory scheme to distinguish such notices from the process of classifying land under s 13.
[20] Act, s 49(2).
An investigation notice must set out the requirements to be complied with to ensure that a site is investigated, monitored and assessed.[21]
It must also set out the reasons for which it has been given, and the form of investigation, monitoring and assessment to be undertaken.[22] Without limitation, an investigation may require a person on whom it is binding to do any of the following:(a)to take such measures as the CEO considers necessary to investigate the nature and extent of contamination and its consequences;
(b)to prepare a management plan and submit it to the CEO;
(c)to monitor the effectiveness of actions taken under (a);
(d)to prepare a sampling and analysis programme for investigating the nature and extent of contamination and give the programme to the CEO;
(e)to prepare and implement a plan, in accordance with any relevant guidelines, for informing and consulting with the community regarding the investigation of the site;
(f)to report to the CEO on any action taken under the notice and its outcome; or
(g)specify the time within which any requirement of the notice is to be complied with.
[21] Act, s 49(1).
[22] Act, s 49(3).
Pursuant to s 50 of the Act, the CEO may issue a clean up notice to a person in respect of a site classified as 'contaminated - remediation required' and if the CEO believes, on reasonable grounds, that appropriate action to remediate the site is not being, or has not been, taken.[23]
[23] Act, s 50(2).
Notices issued under s 49 and s 50 may be appealed.[24]
[24] Act, s 52(1) and s 79(1).
Section 97 of the Act authorises the CEO to make, amend or revoke guidelines with respect to, among other matters, the assessment, management and reporting of contaminated sites, and the identification and classification of contaminated sites. Over time, the CEO has published guidelines pursuant to this power.
Appeals
The Act provides a regime for appeals against particular decisions, including classification decisions.
A person who is an owner or occupier of a site classified as 'possibly contaminated - investigation required' may appeal to the Committee against that classification, or the inclusion in the site of land of which the person is an owner or occupier (s 18(2)). Such appeals are to be brought, dealt with and determined in accordance with pt 8 div 2 of the Act. I refer to s 79 to s 83 of the Act in particular.
Section 79(1) of the Act relevantly provides that an appeal under s 18 is instituted by lodging a written notice of the appeal to the Committee setting out the grounds and facts on which the appellant relies. Pursuant to s 80, when an appeal is lodged, the Committee:
(a)is to request the CEO, and if the committee thinks it necessary to do so, the Environmental Protection Authority (EPA) to report to the committee on the appeal; and
(b)may request the CEO to consider the appeal and to consult the appellant and any other appropriate person to determine whether or not the point at issue in the appeal can be resolved and report to the committee on the appeal.
The CEO and the EPA are to comply with a request of the Committee under s 80: see s 81(1) of the Act. The CEO or the EPA is not to make a recommendation in a report that conflicts with an approved policy or with any standard prescribed by or under the Environmental Protection Act 1986 (WA) (EP Act).[25]
[25] Act, s 81(2).
Section 82(1) of the Act provides that, subject to s 82(2), on receiving the relevant report or reports, the Committee 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.
Section 82(2) provides that a decision of the Committee under that section is final and without appeal. The CEO is to give effect to the outcome of an appeal as soon as is practicable, and is to ensure that details of a decision by the Committee are published in the manner prescribed.[26]
[26] Act, s 83(1) and (2).
The Committee is established by the Minister pursuant to s 33(1) of the Act. The Committee consists of between three and five persons selected from a panel of names by the Minister each of whom, in the opinion of the Minister, has suitable expertise to make decisions for the purposes of the Act.
The Committee is to determine its own procedures.[27] However, in making a decision under the 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.[28]
[27] Act, s 33(4).
[28] Act, s 34.
For completeness, I note that div 1 pt 8 of the Act provides for appeals from the decisions of the Committee. These provisions relate to appeals against decisions pursuant to s 40, s 55(6) and s 67 of the Act, with which we are not presently concerned.
Relevant statutory concepts and definitions
The following definitions included in the Act have particular relevance for the present applications, namely:
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.[29]
[29] Act, s 4(1). Section 4(2) provides that 'land, water or a site, or land, water or a site of a prescribed class or description, is not contaminated where the regulations so provide'.
remediation in respect of a site that is contaminated includes -
(a)the attempted restoration of the site to the state it was in before the contamination occurred;
(b)the restriction, or prohibition, of access to, or use of, the site;
(c)the removal, destruction, reduction, containment or dispersal of the substance causing the contamination, or the reduction or mitigation of the effect of the substance;
(d)the protection of human health, the environment or any environmental value from the contamination;[30]
[30] Act, s 3(1).
site means an area of land and includes -
(a)underground water under that land; and
(b) surface water on that land;[31]
source site means a site -
(a)on which contamination; or
(b)on which a substance,
has originated and from which it has migrated to another site (the affected site) causing, or contributing to, contamination on that other site.[32]
[31] Act, s 3(1).
[32] Act, s 3(1).
There are further definitions of relevance found in the EP Act.[33]
The term environment is defined to mean, subject to s 3(2) of the EP Act, living things, their physical, biological and social surroundings, and interactions between all of these. Section 3(2) of the EP Act provides that, in the case of humans, the reference to social surroundings in the definition of environment in s 3(1) is a reference to 'aesthetic, cultural, economic and other social surroundings to the extent to which they directly affect or are affected by physical or biological surroundings'.[33] Act, s 3(2).
The EP Act defines the term environmental value to mean either a beneficial use or an ecosystem health condition. These concepts are further defined in the legislation.[34]
[34] EP Act, s 3(1).
The term beneficial use means a use of the environment, or any portion thereof which is
(a)conducive to public benefit, public amenity, public safety, public health or aesthetic enjoyment and which requires protection from the effects of emissions or of activities referred to in paragraph (a) or (b) of the definition of environmental harm in section 3A(2); or
(b)identified and declared under section 35(2) to be a beneficial use to be protected under an approved policy.[35]
[35] EP Act, s 3(1).
The term ecosystem health condition means a condition of the ecosystem which is:
(a)relevant to the maintenance of ecological structure, ecological function or ecological process and which requires protection from the effects of emissions or of activities referred to in paragraph (a) or (b) of the definition of environmental harm in section 3A(2); or
(b)identified and declared under section 35(2) to be an ecosystem health condition to be protected under an approved policy.[36]
[36] EP Act, s 3(1).
The EP Act defines the term environmental harm to mean direct or indirect:
(a)harm to the environment involving removal or destruction of, or damage to -
(i)native vegetation; or
(ii)the habitat of native vegetation or indigenous aquatic or terrestrial animals;
or
(b)alteration of the environment to its detriment or degradation or potential detriment or degradation; or
(c)alteration of the environment to the detriment or potential detriment of an environmental value; or
(d)alteration of the environment of a prescribed kind.[37]
[37] EP Act, s 3A(2).
C. Factual context
Evidentiary materials
For the purposes of the hearing of the applications, the Court received in evidence (without objection but with submissions made as to the utility of the material on a judicial review application) three affidavits, an expert report, and an agreed bundle of documents.
The three affidavits were:
(a)the affidavit of Daniel Joseph Avila sworn 7 April 2020, filed in CIV 1338 of 2020 (First Avila Affidavit) - this affidavit primarily addresses the applicant's explanation for the delay in filing the proceedings in CIV 1338, beyond the limitation period in O 56 r 2(4)(b) RSC;
(b)the affidavit of Daniel Joseph Avila sworn 7 April 2020, filed in CIV 1337 of 2020 (Second Avila Affidavit) - this affidavit primarily addresses the applicant's explanation for the delay in filing the proceedings in CIV 1337, beyond the limitation period in O 56 r 2(4)(b) RSC; and
(c)the affidavit of Daniel Joseph Avila sworn 21 January 2021, filed in CIV 1338 of 2020 (Third Avila Affidavit), which runs for some 900 pages.[38]
[38] Other than Attachment DJA 28, which was not read, in light of the separate filing of an expert report.
The applicant adduced an expert report prepared by an environmental scientist, Dr Peter Keating, dated 1 March 2022.[39] Orders had been made by Allanson J to permit the applicant to rely on this report. I refer to his Honour's reasons for decision in Greenland Resources Pty Ltd v Contaminated Sites Committee.[40]
[39] Exhibit A.
[40] Greenland Resources Pty Ltd v Contaminated Sites Committee [2022] WASC 280.
In granting leave, his Honour made the following observations:
[52]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.
[53]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.
[54]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.
[55]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.
[56]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.
[57]The applicant has leave to adduce the report of Dr Keating.
(emphasis added)
The parties also agreed the contents of a bundle of documents (Agreed Bundle), which was dated 9 December 2022. The Agreed Bundle contained the following documents being guidelines issued pursuant to s 97 of the Act:
(a)the assessment and management of contaminated sites dated December 2014;
(b)the identification, reporting and classification of contaminated sites in Western Australia dated June 2017; and
(c)the assessment and management of contaminated sites dated November 2021.
Neither Mr Daniel Avila nor Dr Keating was required for cross‑examination and thus the judicial review applications proceeded on the documentary material to which I have just referred.
This is an appropriate point to summarise the factual material and chronology of events which emerges from the evidentiary material, as well as from the CEO's Decision and the Committee's Decision.
In doing so, it is necessary to be conscious of the nature of these proceedings, which are not merits reviews. Allanson J recognised and emphasised this point in his interlocutory decision to which I have earlier referred. The applications filed by the applicant are judicial review proceedings, brought under O 56 RSC. It is therefore unnecessary to now refer to the extensive factual material which has been identified by the applicant. The following summary will suffice.
Historical background
Greenland has occupied Lot 6 under a commercial arrangement with the owners. It uses Lot 6 and Lot 36 for its business purposes, which involves the sale of garden supplies and the management of the vineyard situated on Lot 6. The vineyard has been operated by Greenland since around December 2016.[41]
[41] Third Avila Affidavit, [2], [3] and [7] - [10].
As I mentioned earlier in these reasons, the area surrounding the three lots is rural in nature, having been used for various agricultural and related commercial agri‑business purposes over the years.
The aerial photograph in Attachment A is taken from one of the documents tendered by the applicant. The photograph shows the boundaries and the relative locations of the three lots, with Abernethy Road bordering the image to the north, and King Road bordering the image to the West. An inset image is displayed in the top left of the photograph.
A further aerial photograph is included in Attachment B. That photograph has been marked to show the locations of the compost stockpiles following a site inspection undertaken by the Department in April 2017.
The evidentiary material provides background as to the classification of Lot 36, which was the first of these adjacent lots reviewed by the Department. It is pertinent to bear in mind that the lot which is the subject of this proceeding (Lot 6), is situated immediately to the south‑west of Lot 36. Part of Lot 36 had been leased to Bio‑Organics, which operated it as a composting facility. It was operated for this purpose from 2002 to June 2014. The remainder of Lot 36 was used for cattle grazing.[42]
[42] Third Avila Affidavit, Attachment DJA17, page 511.
In December 2013, the Department first classified Lot 36 as 'possibly contaminated - investigation required'.[43] In June 2014, the Department revoked the licence held by Bio‑Organics to operate the compost manufacturing facility on Lot 36, and issued it with a Closure Notice. That notice required Bio‑Organics to remove all remaining compost stockpiles from the composting pad on Lot 36.
[43] Third Avila Affidavit, [16].
In October 2014, the Department issued an investigation notice pursuant to s 49 of the Act in relation to Lot 36, which required that Bio‑Organics undertake a 'Detailed Site Investigation'.[44] In March 2015, the Committee dismissed appeals on the classification of Lot 36 and on the Investigations Notice, and affirmed the decision to classify Lot 36 as possibly contaminated.[45]
[44] Third Avila Affidavit, Attachment DJA8, page 71.
[45] Third Avila Affidavit, Attachment DJA17, page 511.
In March 2016, Greenland began to store mature compost stockpiles on Lot 6, which had been manufactured on Lot 36. I infer this was done in response to the Closure Notice issued with respect to Lot 36. Thereafter, Greenland used compost from these stockpiles for the purposes of its vineyard on Lot 6.[46] It appears the Department then commissioned an examination of Lot 6 by Mr Simon Leake, which was undertaken in May 2016.[47]
[46] Third Avila Affidavit, [18].
[47] Third Avila Affidavit, [19].
Bio‑Organics next engaged Douglas Partners to undertake a review of Lot 36, and prepare a report. The report was finalised in March 2017 (Douglas Partners Report).[48]
Investigation of Lot 6
[48] Third Avila Affidavit, [21] - [22]; Attachment DJA8.
The potential for contamination at the vineyard on Lot 6 was subsequently the subject of an inquiry undertaken by a Standing Committee of the Legislative Committee.[49] I need not explore the details of that inquiry, suffice to say that this process appears to have been the catalyst for the Department to commission a consultant to carry out a groundwater investigation at the vineyard. This was commissioned in May 2017, and a report was prepared in August 2017 by Golder Associates (Golder Report).[50] The investigation by Golder Associates and the preparation of their report was undertaken with the consent of the landowners.[51]
[49] Third Avila Affidavit, Attachment DJA-10, page 329.
[50] Third Avila Affidavit, Attachment DJA17, page 512; Attachment DJA9.
[51] Third Avila Affidavit, [23] - [25].
In September 2017, a delegate of the CEO wrote to the owners of Lot 6, and to the applicant as occupiers, advising of his intention to classify the site as possibly contaminated - investigation required under the Act, and inviting submissions before a final decision was made.[52]
[52] Third Avila Affidavit, Attachment DJA11, page 453.
The letter from the delegate stated that:[53]
As Bio-Organics is aware, in May 2017 DWER commissioned a consultant to carry out a groundwater investigation at the vineyard. The investigation has now been completed, and a copy of the report was provided to Bio‑Organics by email on 6 September 2017.
The results indicate that leachate from the compost stockpiled at the vineyard by Bio‑Organics has reached shallow groundwater. Nutrients (total kjeldahl nitrogen and nitrate) and metals (copper and zinc) are locally elevated, which is consistent with the degradation of organic material. The concentration of nitrate in groundwater at the vineyard is greater than the concentration identified in groundwater at the former composting facility during 2016.
Perfluoroalkyl and polyfluoroalkyl (PFAS) were also detected in groundwater beneath the vineyard. The compounds detected in groundwater at the vineyard are similar to those seen in wastewater effluents or biosolids. This is consistent with Bio-Organics' historical acceptance of a range of wastes, including sewage and septic waste, organic sludge, industrial wash water and soils and sludge from industrial waste treatment plant residues. Fire-fighting do not appear to be a significant source.
There does not appear to be a risk to public health based on the results of the groundwater investigation, but further investigation is required to assess the potential risk to the environment. The concentrations of nutrients, metals and PFAS exceed criteria for the protection of fresh water aquatic ecosystems. PFAS compounds are known to be highly persistent in the environment, and due to the solubility can be transported long distances in water.
Further groundwater investigation is required, and an assessment of PFAS leaching potential from soil and stockpiles. DWER requests that Bio‑Organics carry out further investigation and intends to classify this site under the CS Act.
[53] Third Avila Affidavit, Attachment DJA11, page 453.
The above letter invited submissions from the applicant.
Following the applicant's provision of submissions, the delegate made the decision to classify Lot 6 on 17 November 2017 as 'possibly contaminated - investigation required'.[54]
[54] Third Avila Affidavit, Attachment DJA13, page 473.
On 24 November 2017, the Department prepared a compilation report entitled 'Assessment of the impacts of compost leachate on groundwater quality at the site'.[55] The author of this report is Dr Stephen Appleyard. I will refer to this report as the Appleyard Report. The author of the report notes that it should be read together with the Golder Report. The Appleyard Report eport, in brief terms, addresses the chemical characteristics of leachate produced from compost stockpiles, the changes in the groundwater chemistry caused by compost leachate, the distribution of nutrients in the groundwater, the distribution of metals in the groundwater, and the distribution of PFAS in the groundwater.
The CEO's Decision
[55] Third Avila Affidavit, pages 530 - 545.
The delegate informed the applicant of the decision by letter dated 30 November 2017.[56] The letter issued by the CEO on 30 November 2017 contains the reasons for the classification of Lot 6, most particularly:
Nutrients (nitrate and total nitrogen), perfluoroalkyl and polyfluoroalkyl substances (PFAS) and metals (copper and zinc) were present at concentrations exceeding criteria for the protection for freshwater aquatic ecosystems, long-term agricultural irrigation and/or drinking water.
Appeal to the Committee
[56] Third Avila Affidavit, Attachment DJA14, page 474.
On 12 January 2018, the applicant appealed the Classification Decision to the Committee.[57] The appeal document states that:
DWER's reasons for classification wrongly conclude that there are grounds to indicate possible contamination. Factual reports and site investigations demonstrate that contaminants of concern identified in the ground water tested in August 2017 are not 'Contamination' as defined by the Contaminated Sites Act 2003 when read with Regulation 5(2) of the Contaminated Sites Regulations 2006.
[57] Third Avila Affidavit, Attachment DJA15, page 480.
The appeal notice identified a number of concerns and attached a detailed document in support.[58] A supplementary document was later provided in March 2018.[59]
[58] Third Avila Affidavit, Attachment DJA15, pages 485 - 499.
[59] Third Avila Affidavit, Attachment DJA16, page 500.
On 21 May 2018, the Department provided the Committee with an appeal report, which attached the Appleyard Report.[60] In July 2018, Greenland responded to the appeal report.[61] Then in August 2018, Greenland provided a further response to the appeal report.[62] Greenland's submissions, in total, were extremely detailed and sought to respond to each aspect of the appeal report.
[60] Third Avila Affidavit, Attachment DJA17, page 508.
[61] Third Avila Affidavit, Attachment DJA18, page 546.
[62] Third Avila Affidavit, Attachment DJA19, page 610.
In September 2018, the Department provided the Committee with a further appeal report.[63] Greenland responded to this by way of a further detailed submission, in November 2018.[64]
[63] Third Avila Affidavit, Attachment DJA20, page 614.
[64] Third Avila Affidavit, Attachment DJA21 and Attachment DJA22, page 622.
An important observation made by the Department in its advice to the Committee was that the delegated officer had placed weight on the groundwater investigation which is the subject of the Golder Report, which identified metals, nutrients, and PFAS in groundwater from the site. Further, given the presence of nearby ecological receptors and environmental values, the Department noted that the delegated officer had 'considered that further investigation is required'.[65]
[65] Third Avila Affidavit, Attachment DJA20, page 615.
The Department recommended that the appeal be dismissed and the classification remain as 'possibly contaminated - investigation required'.
Committee's Decision
On 29 July 2019, the Committee published its decision, dismissing the appeal.[66] The full terms of the Committee's Decision (including the footnote to par 1) is set out in Attachment C to these reasons.
[66] Third Avila Affidavit, Attachment DJA23, page 648.
It is appropriate to briefly traverse the terms of the Committee's Decision at this point.
At [9], the Committee identified the grounds of appeal prepared by the applicant, and correctly identified the various submissions and documents which had been filed by the applicant (and the Department). The Committee indicated it had given consideration to the grounds of appeal and the other matters raised by Greenland and the Department (at [10]).
The Committee then addressed the appeal by reference to:
(a)the asserted exemption for the correct application of fertiliser (at [11] ‑ [15]);
(b)the applicant's concern that PFAS presence had been investigated (at [16] ‑ [18]);
(c)the wetland conservation category (at [19] - [22]);
(d)the drinking water quality guidelines (at [23] - [28]);
(e)the uncertainty over background levels, the direction of groundwater flow and soil sampling (at [29] and [30]);
(f)the grounds which addressed the possible sources of contamination (at [31] - [33]); and
(g)the various other grounds or arguments raised by the applicant (at [34]).
The Committee concluded the decision by recognising that Greenland had raised questions that could, following further investigation or the provision of supporting documentation, lead to the classification being changed. However, in view of the present lack of information, the Committee reasoned that the present classification remained appropriate (at [35]).
On 6 March 2020, the applicant commenced separate proceedings in this Court applying for judicial review of the CEO's Decision and of the Committee's Decision.
D. The expert's report
As noted above, Greenland obtained leave to adduce the report of Dr Keating, which is some 21 pages in length.
Dr Keating is an eminently qualified person to provide a report on the subject matter of these proceedings. Dr Keating has a first class honours degree and a PhD in biochemistry from the University of Western Australia. He was appointed adjunct Associate Professor at Murdoch University School of Veterinary and Life Science, and is a registered Participating Investigator with the Australian Research Council through Western Sydney University. He has provided analytical and technical consulting services to the agriculture, horticulture, environmental and property development industries for some 30 years.
In general terms, Dr Keating has extensive experience in many aspects of the potential environmental impacts of property development, and the laws, regulations, and guidance in place in Western Australia related to property development. He has undertaken and supervised environmental studies for more than 20 years, and has particular expertise in understanding the interactions between geology, topology, soils, rivers and wetlands on the natural and built environment.
Dr Keating was requested by Greenland's solicitors to provide his opinion on several matters. I will briefly summarise his opinions below:
(a)Dr Keating was requested to opine on whether, based on his knowledge and the stated assumptions (including to assume the correctness of the data in the Douglas Partners Report, the Golder Report, and the report prepared by Mr Simon Leake), there was or is any reason to believe the groundwater under Lot 6 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.
Dr Keating identified two aspects to this issue.
First, he addressed whether there was any substance present on Lot 6 at above background concentrations. In this regard, he concluded there was no evidence that the composition or variability of groundwater under Lot 6 was different to the composition or variability of groundwater in the wider district. He emphasised that groundwater is never constant. It varies with seasons, and it is influenced by local differences in soil composition, mineralogy, elevation, and past land use. Having considered the data presented in the various reports, he concluded that it was typical of background concentrations, and entirely consistent with his professional experience analysing water in the broader area for many horticultural clients drawing on groundwater to grow crops in soil, in greenhouses and in hydroponic systems.
Second, he addressed whether any substance poses or may pose any of the identified risks. He observed that a proper analysis of risk involves an assessment of what is the likelihood of someone using the groundwater for a sensitive use (for example for human consumption) and for non‑sensitive use (for example irrigating crops), and what are the likely consequences of such use on human health, the environment and environmental values.
Dr Keating concluded that none of the substances found in the monitoring bores under Lot 6 pose a practical or health risk problem to residents, horticultural growers or livestock in the area, notwithstanding that some of the analysed substances might be outside various published guideline values. Therefore, he considered there was no evidence of any substance under Lot 6 that poses a risk to human health, the environment or any environmental value (even if there were substances present at above background levels). In reaching this view, he had regard to the absence of scheme water or sewers in the area, and noted that horticultural growers developed cropping systems because they know the area has 'high quality superficial groundwater'.
(b)Dr Keating was also asked to opine on nine possible considerations of relevance to the above issues. One of those considerations was the compost stockpile located on Lot 6. Based on the reports provided to him, he understood the stockpiles were large, with the largest being around 120 m in length, 20 m wide and 3 m high, containing a small amount of ammonium according to the testing.
I understand Dr Keating's assessment of the stockpiles was based on data supplied to him - in essence a desktop review. He regarded the stockpiles as mature and noted that the maturity of compost means decomposition processes have slowed, temperatures have cooled, anaerobic states have abated and mineral composition (particularly ammonium and nitrate) has become stable. That is, they are ready for commercial sale.
Dr Keating also opined it would take about 2,000 mm of rain or irrigation to saturate the compost to the point where leachate would be produced from the centre of the pile, and lesser amounts on the edges of the typically trapezoid shape of stockpiles. He regarded it as practically impossible (given the rainfall data available) for these compost piles to have become saturated to the point of generating compost leachate.
Thus, he concluded that the likelihood that mature compost stockpiled as described could have any influence on the composition of groundwater below is thus so low as to be impossible to practicably measure.
(c)Dr Keating concluded that none of the local uses of groundwater could be adversely affected by any of the substances reported in the Golder Report. He also concluded there was virtually no prospect for groundwater flowing under the site to be used for public drinking water. He noted that the site was unlikely to be used for public drinking water because the aquifer was not deep enough to allow for deeper bores which enable economic abstraction.
(d)Dr Keating appeared to disagree as to whether the central part of the site should be classified as Conservation Category Wetland.
(e)Dr Keating expressed the view that the likelihood of deep groundwater contamination from shallow groundwater under Lot 6 was extremely remote. The reason was because the shallow aquifer is separated from the deeper aquifers in this area by a shelf of limestone and shelly deposits generally about 20 ‑ 30 m below the surface.
(f)Dr Keating concluded that none of these areas downstream of Lot 6 was at any quantifiable risk of being adversely affected by groundwater flowing under the site, assuming that groundwater was contaminated or polluted.
(g)Dr Keating reviewed the Appleyard Report, particularly the conclusion that 'compost leachate generally contains elevated concentrations of … inorganic chemical constituents due to the microbial mineralisation of organic matter within the compost', such as bicarbonate ions, sulfate ions, nitrate ions, inorganic phosphorus species, and elevated concentration of base cations particularly potassium and calcium ions. He disagreed that several of the listed chemicals were characteristic of compost leachate, noting that sulfate ions are relevant to compost leachate but not generally characteristic of it, and he agreed that inorganic nitrogen species such as ammonium and nitrate are characteristic of leachate from immature composts, but he would not expect to see these chemicals emanating from green waste compost or from any mature compost, such as that which was stockpiled on the site. Dr Keating did agree that base cations, particularly potassium and calcium ions, are characteristic of compost leachate.
(h)Dr Keating was of the view that none of the chemicals identified in the Appleyard Report (bicarbonate, sulfate, potassium and calcium ions) are naturally low in the groundwater in the vicinity of Lot 6.
(i)Dr Keating disagreed with the conclusion in the Appleyard Report that sampling of the monitoring bores indicated that the concentration of bicarbonate in groundwater up‑gradient of Lot 6 was less than 20 mg/L. He accepted that the bicarbonate alkalinity was low, but this was not indicative of leachate, it was rather indicative of low pH. He described the water as already acidic, so it had no capacity to neutralise acid.
(j)Dr Keating considered many of the statements in the Appleyard Report about bore locations appear to involve a misreading of the data. He disagreed that some of the bores were downstream of the compost stockpiles.
(k)Dr Keating addressed the conclusion in the Appleyard Report that historical groundwater investigations had indicated that groundwater near Lot 6 has been widely contaminated by agricultural land uses over a long period of time, with the principal groundwater contaminant in the area being nitrogen, mostly present in the chemical form of ammonium ions. His view on this issue was that he agreed that 'due to the long term use of the site and its surrounds for agriculture one would expect to see in the local groundwater a nutrient signature of such use, including the presence of nitrogen as well as phosphate and essential trace elements. This is what is seen in the data from the Golder Report and the Douglas Report'. He disagreed however with the use of the phrase 'contaminated' solely because of the operation of reg 5(1)(f) in the Regulations, which I can put to one side for the moment.
(l)Dr Keating went on to disagree with many of the conclusions in the Appleyard Report as to the distribution of nutrients, metals and PFAS in the groundwater. He reiterated, for example, his view that the levels of nitrogen salts in the mature compost stockpile on Lot 6 would be much lower than what is currently added through the irrigation system in operation on the vineyard.
E. Applicant's grounds of review
Application CIV 1337
The application for judicial review in CIV 1337 was substantially amended in September 2022, with the original grounds being largely re‑written. In their amended form, the application advances the following grounds by way of challenge to the Committee's Decision:
1.The Committee's reasons for the appeal decision were inadequate and failed to disclose that the Committee had performed its statutory function.
2.The Committee failed to give proper, genuine, and realistic consideration to the applicant's ground of appeal that the CEO was wrong to conclude 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 and that the CEO's conclusion was wrong.
3.In affirming the CEO's decision, the Committee did not determine whether there were reasonable grounds for the classification of Lot 6 as 'possibly contaminated' in accordance with section 13 and Schedule 1 of the CS Act. Accordingly, the Committee failed to exercise its jurisdiction.
Particulars
(a)Section 34(b) of the CS Act required that the Committee, in making its decision, act according to equity, good conscience and the substantial merits of the case, and section 82(1) of the CS Act required the Committee to either affirm, substitute or, set aside the classification. These provisions required the Committee to consider the evidence before it and make the correct and preferable decision in accordance with the CS Act.
(b)The plaintiff's case in its appeal was that the CEO's decision was wrong and there were no reasonable grounds for the classification, and that the Committee should set aside the classification. This was evident from the following:
(i)The single ground of appeal in the Notice of Appeal dated 12 January 2018 (Notice of Appeal) was that 'DWER's [sic] reasons for classification wrongly conclude that there are grounds to indicate possible contamination'.
(ii)In the Notice of Appeal the plaintiff stated 'any and all of these of these facts … are clear evidence supporting the position that the site is "not contaminated" '.
(c)The plaintiff provided comprehensive submissions to the Committee addressing why there were no reasonable grounds to indicate contamination and why Lot 6 should not be classified as 'possibly contaminated'.
4.The Committee incorrectly interpreted regulation 5 of the Contaminated Sites Regulations 2006 (WA) by concluding, at paragraphs 11‑13 of the appeal decision, that a reference to 'fertilisers' in the regulations was confined to artificial fertilisers. Had the Committee correctly interpreted this regulation then it would have had to consider the applicant's submissions with respect to the source of contamination, rather than dismissing them on the basis that the source of contamination was not a relevant consideration.
Application CIV 1338
The application for judicial review in CIV 1338 was also substantially amended in August 2022, with the original grounds 1 and 2 thereof being significantly re‑cast through those amendments. In their amended form, the primary grounds of challenge against the CEO's Decision are as follows:
1.The classification decision was vitiated by jurisdictional error because 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, or alternatively the CEO's conclusion in that regard was illogical or irrational.
Particulars
(a)In finding that Lot 6 was potentially contaminated, the CEO relied on the fact that nutrients, perfluoroalkyl and polyfluoroalkyl (PFAS), copper and zinc were present in groundwater in concentrations exceeding criteria in guidelines for the protection of freshwater aquatic ecosystems, long term-agricultural irrigation, and drinking water levels at Lot 6. The CEO did not engage in an active intellectual process as to whether the fact of concentrations exceeding guidelines was to be interpreted against the background concentration of the substances, the overall quality of the groundwater, the environmental setting, and other information before or known to her.
(b)In finding that Lot 6 was potentially contaminated, the CEO relied on her conclusion that compost stockpiled on Lot 6 was emitting or had emitted leachate into groundwater and was, accordingly, the cause of the potential contamination. The CEO failed to engage in an active intellectual process with the following:
(i)The nature of compost at Lot 6, including that it was mature which does not produce leachate.
(ii)That the chemicals recorded at Lot 6 attributed to leachate do not correspond with the chemical signature of leachate generally or leachate analysed at a nearby site.
(iii)How to interpret and characterise the samples from bores located on Lot 6.
(iv)That a detailed site investigation of an adjacent lot concluded that there was no evidence of a contamination plume having emanated from a composting pad used for a period of at least 16 years in the manufacture of compost.
2.[There is no ground 2]
3.The CEO failed to afford the applicant procedural fairness in failing to give the applicant an opportunity to be informed of the nature and content of material adverse to the applicant's interests before making the classification decision.
The applicant then advanced an alternative ground, as follows:
4.Further and alternatively to grounds 1 and 3 above, the applicant seeks:
(a)a declaration that the CEO's classification of Lot 6 as 'possibly contaminated investigation required' is wholly invalid based on the grounds identified in grounds 1 and 2 above; and, or alternatively
(b)a declaration that the investigation requirements specified in the Notice of Classification dated 30 November 2017 (Investigation Requirements) are not binding on the applicants, and are wholly invalid, on the grounds that they are not specifically authorised by s 49(3) of the [Act] or are wholly invalid by reason of the fact that the Investigation Requirements do not unambiguously identify and make clear in the Notice of Classification itself what is required to be done contrary to s49(3)(b) of the [Act].
At the hearing of the matter, counsel for Greenland confirmed that ground 4(b) was not pressed.[67] As for ground 4(a), although expressed to be a further or alternative ground, it seems in effect to merely seek a declaration consequent upon the outcome of grounds 1 and 2 (which I read as grounds 1 and 3, given there is no ground 2).
[67] ts 86 - 87.
F. Nature of an appeal under s 79(1) of the Act
Having regard to the relevant legislative framework set out above, and the grounds of review articulated by the applicant, there is an important anterior question to address before examining the applicant's grounds of challenge against the Committee's Decision. This issue is of particular significance in relation to the challenge in CIV 1337. The issue to consider is the nature of the Committee's task on appeal, being an appeal under s 79(1) of the Act. Greenland and the Attorney General both made submissions on this issue.
The appeal to the Committee under s 79 of the Act is not an appeal in the strict sense. Neither party submitted otherwise.
The Attorney General made submissions to the effect that it was open to this Court to conclude that the Committee on appeal is not obliged to carry out a review de novo of the CEO's Decision but is to respond to the case advanced by the applicant. The applicant took a more expansive approach to the issue, submitting that the Committee was more or less obliged to undertake a de novo review. Counsel for the applicant acknowledged that the features evident in the statutory regime point both in favour and against his proposition.[68]
[68] ts 116.
As appeals are creatures of statute, the nature of the appeal is fundamentally to be determined on the proper construction of the underlying statute. The principles set out by the Court of Appeal in Forrest & Forrest Pty Ltd v Honourable Marmion, Minister for Mines and Petroleum[69] as to the construction of the appeal provisions of the Mining Act 1978 (WA) are apposite in this respect. The following summary is taken from the Court's explication of the principles, with the footnotes and citations omitted:[70]
1.Appeals are creatures of statute. An appeal is a remedy given by statute, and the nature of an appeal is to be determined on the proper construction of the statute in question.
2.Although the nature of an appeal is always a question of the proper construction of the relevant statute, the statutory schemes for appeals often lend themselves to characterisation in certain ways, including appeals in the strict sense, appeals by way of rehearing, and appeals involving a hearing de novo. Whilst it is impermissible to treat each category as necessarily having 'immutable characteristics or inflexible boundaries', several general observations may be made.
3.An appeal in the strict (or proper) sense of the term gives the appellate body jurisdiction to determine whether or not the original decision was or was not erroneous on the evidence and the law as it stood at the time of the original decision. The appellate body may only give the decision which should have been given by the original decision‑maker at first instance on the evidence before him or her. In broad terms, it involves an historical exercise in the detection of error. It does not involve a 'rehearing' in the sense of hearing and determining the matter over again on the facts and in accordance with the law as it exists at the date of the appeal.
4.If an appellate body is empowered to receive further evidence, beyond that before the original decision‑maker, and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually referred to as a 'rehearing'. Even in such a case, however, the powers of the appellate body have generally been construed on the basis that, absent some contrary legislative intention, they are to be exercised for the correction of error in the original decision, and not regardless of error at first instance. The appellate function strictly speaking involves the correction of error in the original decision, having regard to the materials upon which the original decision was based. Accordingly, where an appeal is by way of rehearing, as opposed to an appeal in the strict sense, the appellate jurisdiction being exercised is generally neither purely original nor purely appellate. Also, at least where there is an appeal by way of rehearing from one court to another, the appeal generally involves the rehearing of the cause at the date of the appeal on the evidence used in the court below, subject to the power to receive further evidence. It does not call for a fresh hearing, as does a hearing de novo.
5.However, even where the legislative provision refers to the appeal as one by way of 'rehearing', the true nature of the appeal is to be discerned from the provision construed in the context of the legislative scheme as a whole, as the word 'rehearing' itself is capable of bearing different meanings according to the context in which it is used.
6.An appeal by way of hearing de novo involves a fresh hearing, and the appellate body may overturn the decision appealed from regardless of error. It is an exercise of original, not appellate, jurisdiction. Where the statutory provision indicates that the appellate body is required to 'make such order as it thinks fit', this is an indication that the appellate body's powers are not constrained by the need to identify error on the part of the decision‑maker, but, rather, it is obliged to give its own decision on the evidence before it.
[69] Forrest & Forrest Pty Ltd v Honourable Marmion, Minister for Mines and Petroleum [2018] WASCA 32.
[70] Forrest & Forrest [55] - [61].
In the absence of direct authority on the characterisation of the nature of the present appeal, it is pertinent to observe that the statutory framework provides indicia which point both in favour of a review de novo conclusion and also the appeal being more limited in nature. The submissions of the Attorney General have set out these indicia in some detail.[71]
[71] Attorney General's Submissions [28] - [35].
The Attorney General also drew the Court's attention to the Court of Appeal's decision in Erujin Pty Ltd v Jacob[72] and the decision of Allanson J in AMG (WA) Pty Ltd v Minister for Environment the Honourable Stephen Dawson MLC[73] as relevant authorities which would assist the Court in the statutory construction exercise. I need only refer in any detail to the second of these decisions.
[72] Erujin Pty Ltd v Jacob [2018] WASCA 212; (2018) 53 WAR 452.
[73] AMG (WA) Pty Ltd v Minister for Environment the Honourable Stephen Dawson MLC [2020] WASC 197.
In AMG, Allanson J addressed competing submissions as to the nature of an appeal under the EP Act. The Minister in that case had submitted that the appeal was not an appeal de novo. That construction was preferred by Allanson J, as being consistent with the statutory regime. His Honour noted the following matters which supported this conclusion:
[59]First, the appeal is from a decision to grant or refuse to grant a statutory permit, from the amendment of the permit or the revocation or suspension of the permit, or from the specification of a condition in the permit.
[60]Second, an appeal must be commenced in writing setting out the grounds of the appeal.
[61]Third, the preliminary procedure on appeals provides for the original decision-maker, in this case the CEO, to report to the Minister 'on the appeal', not on the original application.
[62]Fourth, when an appeal is lodged, the Appeals Convener may consult the appellant and others 'to determine whether or not the point at issue in the appeal can be resolved'.
[63]Fifth, where an appeals committee is appointed, it is to consider and report to the Minister 'on the appeal'.
[64]Sixth, an appeals committee is to report to the Minister on its findings and considerations 'in respect of the appeal'.
[65]Seventh, the power of the Minister is to allow or dismiss the appeal.
[66]Finally, as the Minister submitted, its construction is consistent with statements of the court in Erujin Pty Ltd v Jacob:
'The actions of the Appeals Convenor and the Minister must, in general, be evaluated in the context of the appellant's case in its appeal to the Minister; in particular, its grounds of appeal and its submissions against the CEO's refusal of the clearing permit application.'
Later their Honours said 'The Minister's function was to respond to the case advanced by the appellant, and not to investigate the application at large'.
In my respectful view, while I recognise that there are indicia which may point in favour of the applicant's preferred construction, as identified in the applicant's submissions and the Attorney General's submissions,[74] I prefer the view that the statutory framework more strongly supports the conclusion that an appeal under s 79 of the Act is limited in nature. The submissions advanced by the applicant to the contrary should thus be rejected. I say this for the following reasons.[75]
[74] See, in particular, the Attorney General's Submissions at [28].
[75] Some of which are analogous to the indicia identified by Allanson J in AMG, as earlier explained in these reasons.
First, there is a requirement in s 79(1) for an appeal notice to set out 'the grounds and facts on which the appellant relies'. As the Attorney General has noted, it is difficult to identify the purpose of this requirement if the Committee is to conduct a review de novo and form its own opinion as to the appropriate classification of the site. A similar point was identified by Allanson J in AMG as favouring the conclusion the appeal ought be evaluated in the context of the applicant's case as drafted.
Second, there exists a preliminary procedure in the Act for an appeal which provides for the original decision‑maker to report to the Committee 'on the appeal', not on the original decision to classify the site.[76] Again, a similar point was identified by Allanson J in AMG.
[76] Act, s 81(1)(a).
Third, the preliminary procedure further provides that the Committee may request that the CEO consult the appellant and any other appropriate person to determine whether or not 'the point at issue in the appeal' can be resolved. Once again, a similar point was identified by Allanson J in AMG.
Fourth, I recognise that the composition of the Committee, of persons with suitable expertise to make decisions for the purposes of the Act, and the nature of the decisions which may be appealed to the Committee, suggest the Committee is to exercise an original jurisdiction rather than appellate. Nonetheless, these matters must be juxtaposed with the requirement in s 79(1), which I have noted above, to set out the grounds and facts on which the appellant relies. This tends to point in favour of a narrowing of the process on appeal, rather than a statutory intention to allow the appeal to the Committee to re‑examine all matters the subject of the original decision.
Fifth, I recognise that the Committee is empowered to make broad orders on appeal, including to make a decision it thinks just. Those broad powers, coupled with the obligation to act according to equity, good conscience and the substantial merits of the case, do not detract from the express terms of s 79(1) which directly control the scope of the appeal process.
Sixth, the submissions of the applicant and its grounds of review (in particular ground 2(a)) essentially invite the Court to characterise the appeal under s 79(1) of the Act as a merits review rather than a statutory appeal. This is clear from the applicant's criticism that the Committee failed to reach the 'correct and preferable' decision,[77] even though that language is not employed within the legislation.
[77] Application CIV 1337, ground 3(a).
The terms of s 79(1) of the Act may be contrasted with s 27(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), which explains the nature of review proceedings before the State Administrative Tribunal. The SAT Act describes the purpose of such a review as being to 'produce the correct and preferable decision at the time of the decision upon review',[78] after describing the review as being by way of a 'hearing de novo'.[79] The nature of such a review is that the Tribunal is placed 'in the shoes' of the original decision‑maker.[80] As Murphy JA observed in LS v Mental Health Review Board,[81] this is commonly referred to as a 'merits review'.
[78] SAT Act, s 27(2).
[79] SAT Act, s 27(1).
[80] Shi v Migration Agents Registration Authority [2008] HCA 1; (2008) 235 CLR 286 [40].
[81] LS v Mental Health Review Board [2013] WASC 128 [91] (Murphy JA).
The applicant's suggested approach, which would require the Committee to essentially undertake a 'do‑over' on appeal, should be rejected.
All of these matters tend in favour of the conclusion that the appeal under s 79 of the Act is not a hearing de novo, as is suggested by the applicant. Rather, the appeal is more limited in nature, and the proper approach is for this Court to evaluate the actions of the Committee on appeal in the context of the applicant's case, with particular reference to the ground or grounds of appeal. The statement made by the Court of Appeal in Erujin Pty Ltd v Jacob, that the 'Minister's function was to respond to the case advanced by the appellant, and not to investigate the application at large', applies by analogy to the function of the Committee under the Act, in my view.
As will be seen below, the Committee's approach in this case was to treat the grounds articulated by the applicant as the focus of the appeal, and to deal with each of them directly as necessary.
G. Judicial review of the Committee's Decision - CIV 1337
Given the manner in which the proceedings were argued, I propose to address CIV 1337 first. That is the challenge to the Committee's Decision on appeal. As to both the challenge to the CEO's Decision and the challenge to the Committee's Decision, the onus remains on the applicant to make out the grounds and errors it has alleged.[82]
Ground 1 - Consideration
[82] Conservation Council of WA Inc v Chairman, Environmental Protection Authority [2022] WASC 58 [18]; Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; (2019) 265 CLR 285 [39].
This first ground advanced by the applicant is that the Committee's reasons were inadequate and failed to disclose that the Committee had performed its statutory function.
Ground 4 - Disposition
[122] Attorney General's Submissions [74].
[123] Attorney General's Submissions [74], referring to Erujin Pty Ltd v Jacob [91] - [94].
[124] Attorney General's Submissions [74], again referring to Erujin Pty Ltd v Jacob [95].
There is no direct authority on the interpretation of reg 5(2) or the scope of the term 'fertiliser' as used in that regulation. The construction of the provision thus falls to be determined in accordance with orthodox principles of statutory interpretation.
As to those principles, the focus of statutory construction is upon the text of the provision having regard to its context and purpose. Further, the statutory text is the surest guide to Parliament's intention. A decision as to the meaning of the text requires consideration of the context, in its widest sense, including the general purpose and policy of the provision. The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose.[125]
[125] Webb v Tang [2023] WASCA 119 [72] - [75].
For my part, I prefer the view that the provision is confined in its operation to artificial fertilisers in the sense that the fertiliser has a known chemical composition and is accompanied by recommendations for its use which are supplied by the manufacturer of the product or a distributor of the product. I reach this view for the following reasons.
First, there are indicia in the text of the provision which provide support for this construction. In particular, the necessity for a 'recommendation' as to the application of the product points against the widening of the exemption to include compost and organic products. One would not ordinarily expect a natural or organic product to carry a 'recommendation' as such.
The foregoing point is emphasised by the presence of the textual requirement that there be a 'correct application' of the product, and that this be undertaken in accordance with a written law or the recommendation. Adherence to the law or recommendation is an integer of the exemption in reg 5(2)(f).
That said, it must be acknowledged that the 'relevant recommendation' in the definition of 'correct application' in reg 5(4) can be either of a manufacturer or a distributor of the fertiliser (not only a manufacturer). This may tend to suggest (although not sufficiently in my view to undermine the point I have just made) that the exemption reaches beyond artificial fertilisers in that, while such fertilisers must be manufactured, the term 'distributor' is intended to widen the field of operation of the provision beyond manufactured products.
Second, the broader context of the regulation in the scheme of the Act tends in favour of the narrower construction. There is, so far as I can discern, no particular theme to the exclusions in reg 5(2). All that can be said is that the exclusions appear to represent a range of circumstances which the legislature has considered appropriate and logical to exclude from the operation of the Act. So I do not draw any conclusion from the types of matters prescribed. Nonetheless, the broader context of the provision is that it operates to allow owners, occupiers and others to escape the reach of the legislation where the land in question would otherwise meet the description of being 'contaminated'. The circumstances in which the exclusionary effect of reg 5(2) is engaged should thus be capable of being clearly defined by not only owners, occupiers and others, but also by those who regulate the operation of the legislation.
Third, and allied to the second point, it is notable that the provision has been drafted in a narrow and careful manner. Let me briefly explain.
Regulation 5(2) operates to exclude a number of particular circumstances from the scope of the concept of 'contamination'. The provision operates to exclude those circumstances where it represents the 'only substance' that might otherwise constitute a contaminant that is present in or on that site. For example, if the substance is part of a building or structure, the site will not be 'contaminated' (reg 5(2)(a)). By way of further example, where the substance is sewage that is being treated or has been treated by a domestic sewage apparatus operated in compliance with the relevant health regulations, the site will not be 'contaminated' (reg 5(2)(c)). The regulation provides a specific definition of the term 'domestic sewage apparatus', which clarifies the scope of this exclusion.
The exclusion which operates in relation to fertilisers, herbicides or pesticides has, I infer, been thought appropriate and logical to prescribe given the common use of such products across the State and in particular on agricultural and farming properties. However, as with the sewage exemption, the fertiliser exemption (to use a convenient shorthand) is narrowly prescribed. There are several conditions to be satisfied before the provision is engaged, namely:
(a)the substance in question must be the 'only substance' that is present in or on the site;[126]
(b)the substance must be present as a 'direct result' of the 'correct application' of a fertiliser, herbicide or pesticide to land;[127]
(c)the substance will only be 'correctly applied' if it has been applied in accordance with a written law in force at the time, or a relevant recommendation of the manufacturer or distributor of the product;[128] and
(d)there must not have been a change to the use to which the land is put since the application of the product.[129]
[126] Regulations, r 5(2), chapeau.
[127] Regulations, r 5(2)(f).
[128] Regulations, r 5(4), definition of 'correction application'.
[129] Regulations, r 5(3).
The present proceedings give rise to a further potential condition, at least where the exemption is relied upon by reason of the application of a fertiliser. That further condition is whether the term 'fertiliser' is confined to artificial fertilisers. The Committee expressed the view that the provision was 'clearly 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'.
In general terms, the drafting of the regulation in such a narrow, somewhat onerous manner, points strongly against a construction which would allow the term 'fertiliser' to extend to any natural or organic product. That would unduly widen the scope of the extension.
Fourth, the object behind the Act, to protect human health and the environment, will be furthered by ensuring that the exemption in reg 5(2)(f) is confined to circumstances in which the product has been specifically applied in accordance with a clearly defined recommendation applicable to the specific product. Put another way, there is an evident need to ensure the exemption is not so overly broad as to undermine the proper reach of the legislation in relation to land which would otherwise fulfill the legislative criteria of being 'contaminated'.
Fifth, the parties referred the Court to particular definitions of the term 'fertiliser' in other statutory regimes. I should immediately acknowledge that definitions employed in other statutes are of limited assistance to the task at hand, which is to construe the Regulations. Perhaps all that can safely be said is that these other definitions tend to generally point in the direction that when referring to a 'fertiliser' the more likely intended meaning of the statute is a chemical, artificial or synthetic product.
I refer, in this regard, to the statutory definitions of 'fertiliser' in s 6 of the Biosecurity and Agriculture Management Act 2007 (WA) and reg 4 of the Environmental Protection (Packaged Fertiliser) Regulations 2010 (WA).[130] The definitions in those instruments expressly exclude unprocessed animal or plant manure. Indeed, the Environmental Protection (Packaged Fertiliser) Regulations 2010 (WA) separately defines the concept of 'organic processed fertiliser', which is defined to include 'compost'. These definitions are similar in nature to the definition of 'fertiliser' in the now repealed Fertilisers Act 1928 (WA), which expressly excluded 'farmyard or stable manure'.
[130] There are other examples in Australia, including the Commerce (Trade Descriptions) Regulations 2016 (Cth), reg 9.
For these reasons, I do not consider the Committee erred in its approach to the operation of the exemption in reg 5(2)(f).
However, in the event I am wrong as to the intended scope and operation of this provision, and it is engaged where a natural fertiliser such as compost has been applied, I observe there was only sparse material before the Committee as to the application of the compost. This is a necessary factual element of the exemption, satisfaction of which was required to be demonstrated by the applicant. Given the exemption requires that it be shown the substance in question was present as a 'direct result' of the 'correct application' of the fertiliser, in accordance with a recommendation of the distributor, the Committee did not err, in my respectful view, in reaching the conclusion that the exemption did not apply (and this was not a basis to otherwise preclude the CEO forming the opinion on reasonable grounds that Lot 6 was possibly contaminated).
I would therefore dismiss this ground.
Discretion to refuse relief
As I am of the view that none of the applicant's grounds have been made out, no question arises as to whether the Court should exercise the discretion to otherwise refuse the relief which is sought.
Extension of time
The extension of time sought by the applicant in respect of CIV 1337 is relatively short, some five weeks beyond the six‑month limit. The explanation has been appropriately explained by Mr Daniel Avila, in my view. I refer to the matters detailed in [16(a)] to [16(p)] of the Second Avila Affidavit. It appears the applicant promptly sought legal advice in relation to the decision of the Committee and after some delays associated with Greenland's solicitors and insurers, the proceedings were filed in March 2020.
I would grant the applicant an extension of time in the circumstances, notwithstanding the weaknesses in the grounds.
H. Judicial review of the CEO's Decision - CIV 1338
I turn now to the applicant's challenge to the CEO's Decision, which can be briefly dealt with given the foregoing reasons.
The challenge to the CEO's Decision, in tandem with the challenge to the Committee's Decision, is unusual, as I noted at the outset of these reasons.
The applicant has pursued the appellate process under s 79(1) of the Act against the CEO's Decision and now also seeks to challenge that decision by judicial review. As I have dismissed the challenge to the Committee's Decision, the Committee's Decision remains final by virtue of s 82(2) of the Act. As the CEO's counsel correctly submitted, the classification of Lot 6 now rests upon the legal effect of the Committee's Decision, not the CEO's Decision.
It follows from the foregoing that the relief sought by the applicant as against the CEO's Decision (which is in the nature of certiorari) is no longer available. The observations of the High Court in Wingfoot Australia Partners Pty Ltd v Kocak[131] explain why this is the case:
[25]The function of an order in the nature of certiorari is to remove the legal consequences or purported legal consequences of an exercise or purported exercise of power. Thus, an order in the nature of certiorari is available only in respect of an exercise or purported exercise of power which has, at the date of order, an 'apparent legal effect' (Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 159; [1996] HCA 44). An order in the nature of certiorari is not available in respect of an exercise or purported exercise of power the legal effect or purported legal effect of which is moot or spent. An order in the nature of certiorari in those circumstances would be not simply inutile; it would be unavailable.
[131] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 [25] (French CJ, Crennan, Bell, Gageler and Keane JJ).
Accordingly, as the CEO's Decision no longer has any apparent legal effect, any challenge to that decision is simply futile.
Further, I consider the application in CIV 1338 is hopelessly out of time and the extension of time sought by the application should not be granted. The affidavit material adduced by the applicant provides a measure of explanation as to the delay after the decision of the Committee was delivered in late July 2019 and the filing of proceedings in this Court in March 2020.[132] However, it leaves as largely unexplained the delay following the applicant being notified of the classification decision in November 2017, which is only sought to be justified by the applicant on the basis the applicant was pursuing its appellate rights under the Act.[133] That does not justify the delay, in my view. That represents a conscious decision by the applicant to pursue one legal avenue rather than another.
[132] First Avila Affidavit, [18].
[133] First Avila Affidavit, [12(a)].
While no particular prejudice is adverted to by the CEO, significant delays in seeking to challenge administrative decisions are not to be ignored lightly.
The delay here is excessive.
The merits of the application are, of course, relevant to the question whether an extension of time should be granted in the interests of justice. As the proceeding is futile, in my view, coupled with the excessive delay and minimal explanation, I would refuse the extension of time which is sought.
I therefore dismiss the application in CIV 1338.
Conclusions and orders
For the foregoing reasons, I will grant the applicant an extension of time in respect of CIV 1337 but dismiss the application, and I will refuse the applicant's request for an extension of time in respect of CIV 1338 and otherwise dismiss that application.
I will hear from the parties as to the appropriate orders which should now be made including as to the costs of both applications.
ATTACHMENT A
AERIAL PHOTOGRAPH OF LOTS 6, 35 AND 36
| LOT 36 |
| LOT 35 |
| 36 |
| 6 |
| 35 |
| LOT 6 |
Source: Golder Report, Figure 2, Well Locations (Third Avila Affidavit, page 208).
ATTACHMENT B
AERIAL PHOTOGRAPH OF STOCKPILES ON LOT 6
Source: Appeal Report prepared by the Department, 21 May 2018, Attachment 3 - Map and photographs of stockpiles situated on the vineyard (Third Avila Affidavit, page 520).
ATTACHMENT C
COMMITTEE'S DECISION MADE ON 29 JULY 2019
Decision in Respect of Appeal Against Classification
Contaminated Sites Committee (CSC 01/2018)
Contaminated Sites Act 2003, Part 8, Division 2
APPELLANT: Greenland Resources Pty Ltd (Greenland)
SITE: Lot 6, 123 King Road, Oakford (the Site)
DATE: 29 July 2019
1. This is an appeal against a notice of classification given by the Chief Executive Officer (CEO) of the Department of Water and Environmental Regulation (DWER)[134] under s 15 of the Contaminated Sites Act 2003 (Act) on 21 November 2017. That notice of classification classified the Site as possibly contaminated - investigation required (PCIR). The Appellant is the registered proprietor of the site. The shares in the Appellant are owned by Joseph and Naline Avila, and the Appellant is represented in this appeal by Benjamin and Daniel Avila.
[134] The Department of Water and Environmental Regulation (DWER) was established on 1 July 2017 following the amalgamation of the Department of Water, the Office of the Environmental Protection Agency and the Department of Environmental Regulation (DER). DER was separated from the former Department of Environment and Conservation (DEC) in June 2013. The use of the name 'DWER' is used in this document to refer to both DER and DEC. The CEO, herein refers to the CEO of DWER or its predecessors.
2. The Reasons for Classification given by the CEO included that a groundwater investigation in August 2017 found:
'Nutrients (nitrate and total nitrogen), perfluoroalkyl and polyfluoroalkyl substances (PFAS) and metals (copper and zinc) were present in groundwater at concentrations exceeding criteria for the protection of freshwater aquatic ecosystems, long-term agricultural irrigation and/or drinking water, as published in the guidelines 'Health based Guidance Values for PFAS for Use in Site Investigations in Australia' (Australian Department of Health, April 2017) and 'Assessment and management of contaminated sites' (DER, 2014). These criteria are relevant because a conservation category wetland is present to the east; a subsurface drain beneath the eastern site boundary discharges into an agricultural drain to the north (and then other downstream surface water bodies); the site is within a rural area; and the site is located partly within a Priority 2 Public Drinking Water Source Area.'
Background
3. The Site is a 21.3036 hectare rural site and has been used as a vineyard producing wine grapes for approximately 15 years. The vineyard consists of approximately 30,000 grapevines.
4. The Appellant claims the management of the Site, including watering, pest and disease management, nutrition, pruning and expected yields has been in accordance with a management plan prepared by AHA Viticulture consultants (2008).
5. Prior to the vineyard development, the Appellant raised cattle on the Site.
6. Compost and mulch were produced and applied to the Site as an integral component to the vineyard establishment and ongoing management as a soil improver and source of plant nutrition. The Appellant claims that, in accordance with a vineyard management plan and manufacturer recommendations, pest and disease control is managed by foliar spray.
Appeal
7. An appeal application form was submitted under section 18 of the Act to the Contaminated Sites Committee (Committee) on 12 January 2018 by the Appellant.
Time limitation
8. An appeal against a site classification made under s 13 of the Act is to be effected in accordance with s 18 of the Act. An appeal is to be brought, dealt with and determined in accordance with Part 8 of the Act. By s 79(2), a notice of appeal is to be lodged within 21 days after the day on which an appellant is given the notice or certificate which gives rise to the appeal, or such later time as may be specified in the notice. The notice, subject of this appeal was dated 30 November 2017 and specified a period of 45 days from the date of service of the notice as the period during which an appeal may be lodged. The appeal was lodged in time on 12 January 2018 and was determined to be valid by the Committee.
Grounds of appeal
9. The Appellant listed several grounds of appeal in information attached to the appeal application of 12 January 2018. On 21 May 2018 the CEO provided a report under s 80(a) and (b) of the Act responding to the grounds of appeal and on 20 July 2018 the Appellant provided a response to the appeal report. On 10 August 2018 the Appellant provided supplementary information. On 26 September 2018 the CEO provided a response to the Appellant's response and supplementary information. On 31 October 2018 the Appellant provided a response to the CEO's further submission.
10. The Committee has given consideration to all grounds of appeal and other matters raised in the above correspondence from the Appellant and the CEO.
Exemption for correct application of fertiliser
11.Pursuant to the definition of "contaminated" in section 3 of the Act, regulation 5(2)(f) provides that land, water or a site is not contaminated where a substance is present as a direct result of the correct application of a fertiliser. Regulation 5(4) further clarifies the term "correct application" to include application "in Accordance with … any relevant recommendation of the manufacturer or distributor of the fertiliser … ". The Appellant has claimed that this exemption applies to the "alleged contaminants" which were "applied to the land as part of normal and proper viticultural use of fertiliser".
12. It is not clear that compost is a "fertiliser" in the ordinary meaning of the word, but if it may be, the question remains whether compost is a fertiliser the use of which is within the meaning of the regulation, as noted at paragraph 11 above.
13. This requirement is clearly 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.
14. The Appellant claims that the compost was used in accordance with a management plan prepared by AVA Viticulture consultants.
15. This ground of appeal is dismissed.
PFAS
16. The Appellant questions why DWER chose to investigate PFAS as contaminants of possible concern. Since PFAS have been found at above health-based guidance levels, DWER's reasons for testing for them are irrelevant. The Appellant also questions how the levels identified relate to background levels. This identified need for further information supports the classification of PCIR.
17. The Appellant further questions the use of guideline values applied for assessing PFAS impacts to aquatic ecosystems. However, supportive evidence has not been provided by the Appellant to conclude aquatic ecosystems cannot be impacted by Site-derived groundwater contamination, and therefore the use of aquatic ecosystem guideline criteria is deemed appropriate pending further investigation (see below).
18. The Appellant's grounds of appeal related to PFAS are dismissed.
Conservation category wetland and the appropriate water quality guidelines
19. The Appellant claims "there are no aquatic ecosystems within even remote distances from the site that are endangered. A palusplain wetland is not an aquatic ecosystem" and that the application of a standard for the protection of freshwater aquatic ecosystems is inappropriate.
20.The CEO has responded that "there is a conservation category wetland located immediately east of the site and down-gradient, as shown in multiple reports including the Douglas Partners Detailed Site Investigation" and notes that Clarke identified "potential environmental impacts on surface water quality and wetland ecosystems" as 'the key risk' requiring further investigation.
21. To the extent that the Appellant has valid grounds for questioning the classification of the wetland, this supports the need for further investigation and the appropriateness of the classification of the site as PCIR.
22. The Appellant's grounds of appeal related to the appropriateness of the water quality guidelines used are dismissed.
Drinking water quality guidelines
23. As noted above, the reasons for classification suggest the water quality guidelines referred to are appropriate because the Site is within a rural area and the Site is located partly within a Priority 2 Public Drinking Water Source Area.
24. The Appellant questions why the CEO has referred to drinking water quality guidelines when
" ... there is no realistic prospect that the vineyard groundwater subject to this notice would be used for drinking water. Golder's analysis demonstrates that it is well outside that guideline for many (natural) reasons, including pH, Total Organic Carbon, Total [sic], salinity, etc.".
25. DWER's guideline (DER 2014) provides the following advice for when the Australian Drinking Water Guidelines (ADWG) should be applied to the investigation of contaminated sites:
"Drinking water should be considered a relevant environmental value and the ADWG used to assess concentrations of substances in groundwater or surface water if:
• a public drinking water source area is a potential receptor;
• scheme water is not available (in this situation it is reasonable to assume that groundwater or surface water may be used for potable purposes); and/or
• there is a reasonable expectation that the groundwater or surface water could be used as a drinking water resource, even where it is not currently being used for that purpose.
Factors to consider with regard to whether the use of water as a drinking water resource is feasible include background water quality, yield or flow, hydrogeology or hydrology, the potential for saline intrusion into aquifers and/or impact on groundwater-dependent ecosystems. Saline groundwater is desalinised for potable use in many Mid-West and Goldfields towns."
26.The CEO has responded that part of the Site is " ... partially located within a Public Drinking Water Source Area, and … scheme water is not available." The CEO concluded that drinking water criteria are relevant.
27. The Committee has concluded that the use of drinking water quality guidelines is appropriate.
28. This ground of appeal is dismissed.
Uncertainty over background levels, direction of groundwater flow and soil sampling
29. The Appellant questions Golder's 'background levels' and the differing views about the direction of groundwater flow, and claims that DWER has not sampled soil at the site. Rather than throwing doubt on the classification, these questions show the need for further information and support the classification of PCIR.
30. The Appellant's grounds of appeal related to these uncertainties are dismissed.
Grounds relating to possible sources of the contamination
31. The Appellant raises a number of grounds of appeal questioning how the contamination may have occurred and its possible sources. An appeal against classification does not and cannot encompass issues associated with causation. The classification of the Site relates to the state of the Site itself. In this case, the CEO's reasons for classification related significantly to the results of a groundwater investigation and the substances identified. How those substances came to be present is not pertinent to the correctness or otherwise of the classification. ·
32. Grounds to which this consideration applies include:
a.The possible production or presence of compost leachate and its composition relative to groundwater;
b. The correctness of the Controlled Waste Tracking System records;
c. The presence or removal of stockpiles;
d. The interpretation of aerial and other photographs.
33. These grounds of appeal are dismissed.
Other grounds of appeal
34. The Appellant has raised several other matters that the Committee has decided are irrelevant to the question whether or not the CEO's classification of the Site is correct.
These matters include:
a. Whether or not the making of compost should be considered a 'potentially contaminating land use';
b. Allegations of falsification of records and abuse of process;
c. Authorship of the CEO's appeal report;
d. The Closure Notice and the Supreme Court findings;
e. The Prevention Notice and the Environmental Protection Notice; and
f. The findings of the Parliamentary Standing Committee.
Conclusion
35. The appellant has raised a number of questions that could, following further investigation or the provision of supporting documentation, lead to the classification being changed. In view of the present lack of information over these matters the PCIR classification is presently appropriate.
36. For the reasons stated above, the appeal is dismissed.
37. The site remains classified under the Contaminated Sites Act 2003 as possibly contaminated - investigation required.
Note: section 82(2) of the Act provides that the Committee's decision under that section is final and without appeal. Section 83 of the Act provides that the CEO of the Department is to give effect to the outcome of the appeal as soon as practicable and to ensure that the details are published in the prescribed manner.
[Signed]
Jim Malcolm
Chairman
and as agent for and on behalf of
the Contaminated Sites CommitteeI certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LM
Associate to the Honourable Justice Lundberg
9 MAY 2024
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