LPG Laverton Property No 5 Pty Ltd v Australian Vinyls Corporation Pty Ltd
[2020] VSC 689
•22 October 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION AND PLANNING LIST
S ECI 2020 00152
| LPG LAVERTON PROPERTY NO 5 PTY LTD (ACN 117 574 544) | Plaintiff |
| v | |
| AUSTRALIAN VINYLS CORPORATION PTY LTD (ACN 078 558 595) | First Defendant |
| and | |
| WYNDHAM CITY COUNCIL | Second Defendant |
---
JUDGE: | GARDE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 September 2020 |
DATE OF JUDGMENT: | 22 October 2020 |
CASE MAY BE CITED AS: | LPG Laverton Property No 5 Pty Ltd v Australian Vinyls Corporation Pty Ltd & Anor |
MEDIUM NEUTRAL CITATION: | [2020] VSC 689 |
---
PLANNING AND ENVIRONMENT – Clean up notices – Whether jurisdiction of the Victorian Civil and Administrative Tribunal ousted by requirements in clean up notice – Ouster of planning and building controls – Meaning of ‘specified in the notice’ – Construction of ss 62A(1) and (1B) of Environment Protection Act 1970 (Vic) – Construction of clean up notice – Environment Protection Act 1970 (Vic) ss 1A, 1B, 1D, 1K, 4, 53V, 53X, 62A – Environment Protection (General Amendment) Act 1989 (Vic) ss 4(c), 59 – Wyndham Planning Scheme cls 33.02–4, 33.03–4.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Morris QC with Mr S McArdle | Minter Ellison |
| For the First Defendant | Mr A Finanzio SC with Mr R Chaile | Allens |
| For the Second Defendant | No appearance |
HIS HONOUR:
Introduction
LPG Laverton Property No 5 Pty Ltd (ACN 117 574 544) (‘LPG Laverton’) seeks leave to appeal, and if leave is granted appeals from the decision of the Victorian Civil and Administrative Tribunal (‘Tribunal’) in proceedings nos P1338/2019 and P1624/2019. The Tribunal determined on a preliminary question of law that s 62A(1B) of the Environment Protection Act 1970 (Vic) (‘EP Act’) operates so as not to require a planning permit for works to be undertaken for the purposes of complying with a clean up notice (‘notice’) issued by the Environment Protection Authority (‘EPA’) under s 62A.[1] The proceeding is brought under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’).
[1]LPG Laverton Property No 5 Pty Ltd v Wyndham City Council [2019] VCAT 1997 (Bisucci DP) (‘Tribunal reasons’).
From 1978, the land at 65 Leakes Road, Laverton (‘subject land’) was used for manufacturing polyvinyl chloride (‘PVC’). In 2007, Australian Vinyls Corporation Pty Ltd (ACN 078 558 595) (‘Australian Vinyls’) purchased the subject land and continued manufacturing. In 2016, it ceased operations and began decommissioning the plant. It was found that PVC had contaminated parts of the subject land and groundwater.
The subject land is subject to the Wyndham Planning Scheme (‘planning scheme’) and is located partly in an Industrial 2 zone and partly in an Industrial 3 zone. In both zones, buildings and works typically require a permit.
On 2 September 2016, the EPA issued a clean up notice under s 62A of the EP Act. The notice was amended on four occasions under s 62A(1AB) of the EP Act. This proceeding is concerned with the amended notice issued on 11 July 2019.
On 17 October 2018, Australian Vinyls applied to the Wyndham City Council (‘Council’) for a permit to construct an environmental bund of approximately 4.2m height, 150m length and 60m width in the south-east corner of the subject land. It proposed to consolidate contaminated soil from the subject land into the bund.
LPG Laverton owns adjoining land near the proposed bund location. It objected to the proposed works to the Council.
On 14 June 2019, the Council decided to grant a permit for the construction of the bund subject to conditions.
On 8 July 2019, LPG Laverton applied to the Tribunal for the review of the Council’s decision to grant a permit. On 13 August 2019, Australian Vinyls applied to the Tribunal for the review of two conditions imposed by the Council.
On 20 December 2019, the Tribunal decided on a preliminary question of law that no permit was needed for the proposed works.
Questions of law and ground of appeal
LPG Laverton relies on two questions of law which are in substance:
(a)whether s 62A(1B) of the EP Act ousts the operation of the Planning and Environment Act 1987 (Vic) (‘PE Act’) and the planning scheme so that no permit is required to undertake the proposed works on the basis that the works are specified in the notice; and
(b)on a proper construction, whether the notice specified any or all of the works to be completed that:
(i)required a permit under the planning scheme, aside from the operation of s 62A(1B); and
(ii)were proposed in the permit application.
LPG Laverton relies on one ground, which is that the Tribunal erred in law in finding that s 62A(1B) of the EP Act operated to oust the operation of the PE Act and the planning scheme such that no permit was required to undertake the works proposed in the application because it:
(a)misconstrued s 62A of the EP Act; and
(b)misconstrued the notice by failing to find that it did not specify any or all of the works to be completed that:
(i)required a permit under the planning scheme, aside from the operation of s 62A(1B); and
(ii)were proposed in the application.
Relevant statutory provisions
Section 1A of the EP Act provides:
(1)The purpose of this Act is to create a legislative framework for the protection of the environment in Victoria having regard to the principles of environment protection.
(2)The principles of environment protection are set out in sections 1B to 1L.
(3)It is the intention of Parliament that in the administration of this Act regard should be given to the principles of environment protection.
The principles of environment protection include the integration, intergenerational equity and enforcement principles.
Section 1B sets out the principle of integration of economic, social and environmental considerations:
(1)Sound environmental practices and procedures should be adopted as a basis for ecologically sustainable development for the benefit of all human beings and the environment.
(2)This requires the effective integration of economic, social and environmental considerations in decision making processes with the need to improve community well-being and the benefit of future generations.
(3)The measures adopted should be cost-effective and in proportion to the significance of the environmental problems being addressed.
Section 1D sets out the principle of intergenerational equity:
The present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations.
Section 1K sets out the principle of enforcement:
Enforcement of environmental requirements should be undertaken for the purpose of—
(a)better protecting the environment and its economic and social uses;
(b)ensuring that no commercial advantage is obtained by any person who fails to comply with environmental requirements;
(c)influencing the attitude and behaviour of persons whose actions may have adverse environmental impacts or who develop, invest in, purchase or use goods and services which may have adverse environmental impacts.
Part IXD of the EP Act is concerned with the conduct of environmental audits. Section 53V provides:
An environmental audit report in relation to the risk of any possible harm or detriment to a segment of the environment caused by any industrial process or activity, waste, substance or noise must—
(a)specify the industrial process or activity, waste, substance or noise in respect of which the environmental audit was conducted; and
(b)state the name of the person who has engaged the environmental auditor to conduct the environmental audit; and
(c)be signed by the environmental auditor; and
(d)specify the results of the environmental audit.
Section 53X provides:
An environmental audit report in relation to the condition of a segment of the environment must—
(a)specify the segment of the environment in respect of which the environmental audit was conducted; and
(b)state the name of the person who has engaged the environmental auditor to conduct the environmental audit; and
(c)be signed by the environmental auditor; and
(d)include—
(i)an evaluation of the environmental quality of the relevant segment of the environment; and
(ii)an assessment of whether any clean up is required to that segment of the environment; and
(iii)if any clean up is necessary, any recommendations relating to the carrying out of the clean up.
Section 62A provides for the service of clean up notices by the EPA. It states:
(1)Notwithstanding anything to the contrary in this Act, the [EPA] may by notice in writing direct—
(a)the occupier of any premises upon or from which pollution has occurred or been permitted to occur;
(b) the person who has caused or permitted the pollution to occur;
…
to take the clean up and on-going management measures as specified in the notice.
…
(1A)The [EPA] may specify in the notice any condition, requirement, restriction, performance standard or level that it thinks fit, including—
(a)a condition or requirement that things specified in the notice are to be done to the satisfaction of the [EPA]; and
(b)a condition or requirement that things specified in the notice are to be done forthwith or by any day or date or within or over any period as specified in the notice; and
(c)a condition or requirement that clean up and on-going management measures are to be carried out in stages by any day or date within or over any period as specified in the notice; and
(d)a condition or requirement that any measurement, recording, sample, report, plan, drawing, document, calculation, test, analysis or thing be lodged with the [EPA] or be approved by the [EPA] before any clean up and on-going management measures or things specified in the notice are carried out.
(1AB)The [EPA] may amend any requirement specified in a notice under subsection (1) or (1AA) by serving on the occupier of the premises or other person to whom the notice was directed a written notice of amendment.
(1B)The clean up and on-going management measures directed by the [EPA] to be taken are to be completed and performed as specified in the notice, notwithstanding anything to the contrary in—
(a)the [PE Act] or any regulation, planning scheme or permit made, approved or granted under that Act; and
(b)the Building Act 1993 or any regulation or permit made or granted under that Act.
(2)…
(3)Subject to subsection (3A), any person to whom a notice under subsection (1) or (1AA) is directed who contravenes without reasonable cause the requirements of the notice shall be guilty of an indictable offence against this Act.
(3A)A person to whom a notice under subsection (1) or (1AA) is directed must comply with the reporting requirements specified in the notice.
Section 4 of the EP Act defines ‘clean up’ in broad terms:
clean up includes any measures—
(a)to remove, disperse, destroy, dispose of, abate, neutralize or treat any pollutant, waste, substance, environmental hazard or noise; and
(b)to restore the environment to a state as close as practicable to the state it was in immediately before—
(i)the discharge of any pollutant, waste or substance; or
(ii)the creation of an environmental hazard; [and]
…
(c)to restore the environment to a state specified in a notice by the end of the time specified in the notice; and
(d)to assess the nature and extent of the damage and risk caused by any pollutant, waste, substance, environmental hazard…; and
(e)to take any measurement, recording or sample or to prepare any report, plan, drawing or other document, or to make any inspection, calculation, test or analysis or do anything that may be specified in the notice; and
(f)to retain any consultant, contractor, expert, agency or person at the cost of the occupier or person required to comply with the notice or otherwise for the purpose of taking any clean up measures specified in the notice; and
(g)to determine the most appropriate action to take in relation to the measures set out in paragraphs (a), (b), (c), (d), (e) and (f);
Planning scheme
Clause 33.02-4 of the planning scheme applies to the Industrial 2 zone and, subject to various irrelevant exceptions, provides that a permit is required to construct a building or construct or carry out works. Clause 33.03-4 applies to the Industrial 3 zone, and is to similar effect.
It was common ground that in the absence of the notice, the construction of the bund would require a permit under the planning scheme.
The notice
The notice contained four parts entitled:
(a)‘EPA observations’;
(b)‘Reasons for view formed’;
(c)‘Requirements – what outcomes are required to comply’; and
(d)‘An example of how you can comply’.
Under ‘EPA observations’, the notice detailed site observations, meetings and assessments from 2015. Paragraph 1.32 stated:
On 12 November 2018, EPA received an application to amend the [notice]. Requirements 3.1 to 3.5 have been completed by the duty holder and an extension of time to Requirement 3.7 would allow for the completion of the environmental bund and the adequate completion of the 53X Environmental Audit Report.
This is the only reference to the proposed environmental bund in the notice.
Under ‘Reasons for view formed’, the notice referred to the history of PVC manufacturing on the subject land, the cessation of operations, and the need to assess and clean up contaminated soil and groundwater.
The ‘Requirements’ part of the notice contained two types of requirements. They were ‘General Requirements’ and ‘Reporting Requirements’. Under ‘General Requirements’, one completed requirement, but no current requirement was listed. Under ‘Reporting Requirements’, two current requirements and a number of completed requirements were listed.
The two current reporting requirements were:
PROGRESS REPORTS – CURRENT REQUIREMENT
By 29 September 2018, and every quarter thereafter until the final audit report is completed you must submit in writing to the authorised officer…, a progress report detailing the progress against all requirements of this notice, including the results of any assessment, remediation and/or monitoring, and an indication for additional works required to complete the 53X environmental audit.
FINAL AUDIT REPORT – CURRENT REQUIREMENT
By 30 June 2020, you must submit to the authorised officer … an environmental audit report by an EPA appointed Environmental Auditor, prepared in accordance with Section 53X of the [EP Act] and consistent with the approved environmental audit scope.
Under ‘An example of how you can comply’, the notice listed steps and activities that would achieve compliance with the notice. They included the appointment of an environmental auditor, the submission of an environmental assessment plan, and interim reports leading up to the submission of an environmental audit report in accordance with s 53X of the EP Act.
Remediation Action Plan
In June 2017, a Remediation Action Plan (‘RAP’) was prepared for the subject land. Extracts from the RAP were tendered by Australian Vinyls during the Tribunal hearing. The RAP analysed various remediation options.
The executive summary of the RAP referred to the development of a preferred remediation strategy, acknowledging that stakeholder engagement may identify opportunities to improve certain elements of the plan. Relevant stakeholders were listed and included the Council and LPG Laverton.
One section of the RAP described a Remediation Options Screening Exercise to identify a preferred remediation strategy. This entailed the evaluation of alternative strategies by reference to factors such as ‘technical applicability’, ‘stakeholder permissibility’, ‘estimated costs’, ‘remediation program time’, ‘sustainability credentials’ and ‘commerciality effects’.
After an assessment of the advantages and disadvantages of alternative strategies, the RAP identified a preferred remediation strategy. It did not include any plans or specifications for the preferred strategy.
The RAP did not determine on any particular course of action but made recommendations for detailed design and stakeholder consideration.
Tribunal reasons
The Tribunal reasons included the following paragraphs:
Whilst it is true that the [notice] does not compel the method to be used to ensure that the site is cleaned up, it clearly requires an auditor verified clean up plan to be submitted to the relevant authorised officer.
…
The audit report under section 53X of the EP Act will have evaluated the environmental quality of the site, assessed whether clean up is required, and set out the recommendations for the clean up, if any. The clean up measures set out in the auditor verified Clean Up Plan are supported by the audit report.
Having regard to the requirements set out in the [notice], its structure, it is clear to me, that the engagement of an EPA appointed auditor and the submission of a final audit report that provides recommendations for the carrying out of works for the clean up of the site is, in fact, a [notice] that has required investigation, reports and in this case, ultimately works.
I disagree with [LPG Laverton] that the [notice] does not allow for any works to occur on the site, that submission takes an overly narrow view of the requirements set out in the [notice] and fails to have regard to requirement 3.5.1 which mandates that an auditor verified clean up plan be provided to the relevant authorised officer of the EPA.
This level of analysis has been necessary because of the submissions of [LPG Laverton] that this [notice] has not directed any works to occur on the site and thus does not oust the operation of the PE Act. I do not consider that this level of analysis is necessary, in order to ascertain whether the section 62A(1B) of the EP Act ousts the operation of the PE Act. Rather, one must look to the words of the legislative regime to make such a determination.
Section 62A(1B) of the EP Act has been set out above and its words are clear - any clean up works or on-going maintenance measures must occur as set out in any notice, despite anything contrary to the PE Act, planning scheme, or a planning permit.
If the words are clear and unambiguous there is no reason to undertake the analysis set out above. The interpretation urged by [LPG Laverton] would require a decision maker look at each and every clean up notice that is issued by the EPA to ascertain whether a planning permit is required. That is a perverse outcome, and adds unnecessarily to administrative and regulatory burden.[2]
[2]Tribunal reasons [32]–[38] (emphasis in original).
Later, the Tribunal held:
Whilst I was encouraged to examine the [notice] in detail, I consider that the better view is that section 62A(1B) of the EP Act ousts the operation of the PE Act every time a clean up notice is issued, any works required under that clean up notice do not require planning permission.
There are very good public policy reasons for this outcome including:
·the unnecessary additional regulatory burden;
·the delay between the issue of a clean up notice and the granting of a planning permit particularly given some works may be [sic] need to be undertaken swiftly and efficiently as there might be unacceptable risk to the environment; and
·if a permit is refused, then works to clean up or remediate a site could not lawfully be undertaken under the planning legislative regime. This outcome would be contrary to the purposes of both the EP Act and the PE Act.[3]
[3]Ibid [44]–[45].
The Tribunal then determined:
The reference to ‘permit made, approved or granted’ in section 62A(1B) of the EP Act is important as it aids in the interpretation of the provision. In essence, if a permit exists and a clean up notice is issued by the EPA, any works that are required as a consequence of the clean up notice that are contrary the works in the planning permit must prevail. One must then ask: what is the purpose of obtaining a planning permit at all for works that are required under a clean up notice? If a permit replicates the works in the clean up notice, it is simply an additional regulatory burden. If a permit is refused or contains a condition contrary to anything in the clean up notice, it is overridden by the requirements of the clean up notice.
Further, I note that section 62(3) of EP Act makes it an indictable offence to contravene without reasonable cause, the requirements of a notice. I suppose it could be argued that the refusal to grant a planning permit may be ‘reasonable cause’.
I accept that there may be an argument as to the extent of works required by a clean up notice, and in those circumstances, a planning permit may be required for any works that are not required by a clean up notice. However, this argument was not put to me in this matter and according to the application for planning permit, the sole purpose for the works was as a consequence of the [notice].
In summary, I determine that the issue of a clean up notice under section 62A of the EP Act is sufficient to oust the operation of the PE Act, a planning scheme or planning permit. [4]
[4]Ibid [46]–[49].
Statutory interpretation
The principles of statutory construction are well known.[5] In Project Blue Sky Inc & Ors v Australian Broadcasting Authority, the plurality of the High Court said:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”... Thus, the process of construction must always begin by examining the context of the provision that is being construed.
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision...
[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[6]
[5]Collector of Customs v AGFA-Gevaert Ltd (1996) 186 CLR 389, 398 (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ); Minister for Immigration and Citizenship v Anochie(2012) 209 FCR 497, 504 [25] (Perram J).
[6](1998) 194 CLR 355, 381–2 [69]–[71], 384 [78] (McHugh, Gummow, Kirby and Hayne JJ) (citations omitted). See also Maroondah City Council v Fletcher(2009) 29 VR 160, 168–9 [36] (Warren CJ, Redlich JA and Osborn AJA); Commissioner of State Revenue (Vic) v Landrow Properties Pty Ltd(2010) 79 ATR 800, 813–4 [51] (Neave, Harper and Hansen JJA).
In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (‘Alcan’), the High Court said:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[7]
[7](2009) 239 CLR 27, 46–7 [47] (Hayne, Heydon, Crennan and Kiefel JJ) (citations omitted).
The plurality of the High Court emphasised the importance of text, context and purpose in SZTAL v Minister for Immigration and Border Protection:
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.[8]
[8](2017) 262 CLR 362, 368 [14] (Kiefel CJ, Nettle and Gordon JJ) (citations omitted).
In CIC Insurance Ltd v Bankstown Football Club Ltd, the plurality of the High Court said:
It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure... the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous.[9]
[9](1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ) (citations omitted).
These principles are consistent with s 35(a) of the Interpretation of Legislation Act 1984 (Vic), which requires that when interpreting an Act, a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not promote that purpose or object.
Interpretation of the notice
In addition to general principles of construction, additional principles apply to the construction of a clean up notice given under statutory authority including that:
(a)the notice should not be read in an overcritical or technical fashion;[10] and
(b)the notice is addressed to practical people skilled in the particular trade or industry and should be construed in the light of practical considerations, rather than by a meticulous comparison of the language of its various provisions.[11]
[10]Environment Protection Authority v Simsmetal Ltd [1991] 1 VR 623, 633 (Gobbo J) (‘Simsmetal’).
[11]Gill v Donald Humberstone & Co Ltd [1963] 1 WLR 929, 933–4 (Lord Reid); Mount Atkinson Holdings Pty Ltd v Landfill Operations Pty Ltd [2020] VSC 345, [33] (Garde J).
The Court’s role
Parties to proceedings in the Tribunal may seek leave to appeal and if leave is granted appeal to the Court on a question of law from an order of the Tribunal.[12] Under s 148(2A) of the VCAT Act, leave to appeal can be granted only if the Court is satisfied that the appeal has a real prospect of success.
[12]VCAT Act s 148.
Parties’ submissions
LPG Laverton submitted that the Tribunal had misconstrued s 62A(1B) of the EP Act as:
(a)s 62A(1B) only applied to the clean up and ongoing management measures directed by the EPA to be taken as specified in the notice;
(b)this required identifying with particularity the measures directed by the notice;
(c)the Tribunal considered that it was not necessary to analyse what works the notice required in order to ascertain whether s 62A(1B) of the EP Act ousted the operation of the PE Act;
(d)it is necessary for the decision maker to read the notice to ascertain whether a permit is needed; and
(e)this is not a perverse outcome and does not add to administrative and regulatory burdens.
LPG Laverton submitted that the Tribunal erred in its construction of the notice by holding that:
(a)the notice required physical works which overlapped with the works requiring planning permission;
(b)the notice specified the physical works that were to occur; and
(c)physical works would follow from the s 53X audit report.
Australian Vinyls submitted that the Tribunal correctly construed s 62A(1B) of the EP Act and the notice, and that:
(a)LPG Laverton’s submissions were contrary to the structure and language of the notice;
(b)if LPG Laverton were correct, there was no current obligation on Australian Vinyls to undertake works;
(c)this would be a perverse result as the EPA has found the existence of pollution on the subject land, and issued the notice;
(d)the RAP contained sufficient specificity of the measures required for clean up and the works necessary to achieve those measures; and
(e)the notice confirmed that there was an outstanding requirement to progress report, and conduct a final audit following completion of remediation works.
Construction of s 62A(1B)
Unlike other approvals or notices under the EP Act,[13] there is no merits review from decisions by the EPA to issue clean up notices under s 62A(1). Judicial review is the only means of appeal.
[13]EP Act s 32.
Directions specified in a notice have important criminal and civil consequences. A recipient of a notice who contravenes without reasonable cause the requirements of the notice is guilty of an indictable offence.[14] Likewise, a recipient of a notice is also guilty of an offence if he/she fails to comply with the reporting requirements specified in the notice.[15]
[14]Ibid s 62A(3).
[15]Ibid s 62A(3A).
Under s 62A(2), an occupier of premises who receives a notice can apply to a Court for an order that the polluter compensate the occupier for reasonable costs incurred in good faith by the occupier to comply with the notice.[16]
[16]Ibid s 62A(2).
Section 62A(1B) is a pivotal provision of the EP Act. It has two parts. The first requires the recipient of a notice to complete and perform measures directed by the EPA as specified in the notice. The measures may include works, tests, measurements, reports, the retainer of consultants and contractors as set out in the definition of ‘clean up’ in s 4.
The second part of s 62A(1B) is also of prime importance. It provides that the measures specified in a notice override the PE Act, planning schemes and planning permits. It overrides the statutory powers of referral authorities and responsible authorities under the PE Act, and the offence provisions. In simple terms, a notice has effect regardless of any prohibitions or restrictions imposed on the measures by the PE Act. This includes the planning, heritage and environmental controls ordinarily found in a planning scheme.
The second part of s 62A(1B) also provides that the measures directed and specified in a notice override the provisions of the Building Act 1993 (Vic) (‘Building Act’), regulations and building permits. Again in simple terms, a clean up notice is effective, regardless of prohibitions or restrictions placed upon the measures by the Building Act, regulations or building permits. The prohibitions and restrictions include fire, water, drainage, structural, health and safety requirements and standards.
By overriding the operation of the PE Act for works specified in a notice, s 62A(1B) has another important consequence. It excludes third party rights to object to the works to the Council or to seek review of the decision of a responsible authority in the Tribunal.
Section 62A(1B) says that clean up and ongoing management measures to be completed and performed as specified in the notice are exempted from the requirements in the PE Act and the Building Act. It does not say that all works that may need to be performed on contaminated land following the service of a notice are exempted from the PE Act and the Building Act.[17]
[17]Emphasis added.
Where works are proposed following the service of a notice, it is a matter of jurisdictional fact for the Tribunal to determine whether the works amount to clean up and ongoing management measures directed and specified in the notice. If they are, then s 62A(1B) overrides the PE Act and Building Act. If they are not, then planning and building controls apply in the usual way.
Context
The expression ‘specified in the notice’ is not only found in ss 62A(1) and (1B). It is found throughout s 62, in the definition of ‘clean up’ in s 4 and in other provisions of the EP Act. Section 62A(1AA) permits the EPA to give notice in writing directing a corporation to take the measures ‘as specified in the notice’. Section 62A(1A) permits the EPA to ‘specify in the notice’ any condition, requirement, restriction, performance standard or level that it thinks fit, using the same language again in each of ss 62A(1A)(a)–(d). Likewise, s 62A(1AB) refers to the amendment of any requirement ‘specified in a notice’.
The offence provisions found in ss 62A(3) and (3A) also refer to ‘the requirements of the notice’ and to the reporting requirements ‘specified in the notice’.
The definition of ‘clean up’ in s 4 speaks in (c) of the restoration of the environment to a state ‘specified in the notice’ by the end of the time ‘specified in the notice’; in (e) of doing anything that may be ‘specified in the notice’ and in (f) of retaining experts or consultants for the purpose of taking any clean up measures ‘specified in the notice’.
The need for the EPA to specify requirements or measures in a notice is also found in provisions relating to pollution abatement notices[18] and many other statutory provisions.
[18]EP Act s 31A(7).
There is no reason why this expression should assume any different meaning in s 62A(1B) from its construction in other provisions of the EP Act.
Purpose
The purpose of s 62A(1B) is plain. It is to require and expedite compliance with clean up measures specified in notices by removing regulatory barriers. On the other hand, no such intent is to be found in s 62A(1B) in relation to measures or works that are not specified in a notice.
There is no sound reason why measures not specified in a notice should be exempted from planning and building controls, particularly having regard to the ramifications of exemption from regulatory controls, the impact on the normal duties and responsibilities of regulatory authorities and the loss of third party rights.
The notice
The notice does not impose any general requirements. No measures by way of physical remediation are directed or specified in the notice.
The notice only specified reporting requirements, which do not attract the second part of s 62A(1B) or operate to oust planning and building controls.
Relevant authority
In Simsmetal, Gobbo J considered the meaning and effect of s 62A(1). The requirements set out in a notice did no more than direct the defendants to undertake a clean up program to remove residential contaminants and rehabilitate premises.[19] At the time that the notice was served, the definition of ‘clean up’ included only (a) and (b) of the present definition. Two months later, Parliament amended the definition to the present form.[20]
[19]n 10.
[20]Environment Protection (General Amendment) Act 1989 (Vic) s 4(c) (‘1989 Act’).
The principal issue was whether the notice specified clean up measures in language that enabled the recipient to know what was required of it. This was necessary if the notice reasonably construed was to be in power.[21]
[21]Simsmetal (n 10) 629.
While the notice directed the preparation of a clean up program, Gobbo J held that did not specify clean up measures. There was no power to direct the carrying out of measures yet to be specified. Gobbo J held that the EPA was required to specify the remedial measures in the notice.[22]
[22]Ibid 630.
While the definition of ‘clean up’ is now much wider, Simsmetal continues to stand for the proposition that s 62A(1) requires a notice to specify the measures to be completed in language that enables the recipient to know what he or she is required to do.
Section 62A(1B) was introduced in 1989.[23] It provided that the clean up and ongoing management measures directed by the EPA were to be ‘completed and performed’ as specified in the notice.
[23]1989 Act s 59.
Simsmetal has been cited in a number of interstate decisions.
In Re Lawrence; ex parte Goldbar Holdings Pty Ltd, the Court held under environmental legislation that the verb ‘to specify’ meant ‘to name expressly or mention definitely relevant items, details or ingredients relating to a particular subject matter’.[24] To comply with a statutory requirement to specify the measures to be taken, the relevant measures must be unambiguously identified and made clear in the notice itself.[25]
[24](1994) 11 WAR 549, 554 (Malcolm CJ, Seaman and Ipp JJA agreeing at 570) (‘Lawrence’).
[25]Ibid.
Simsmetal and Lawrence were followed in Sullivan v District Council of Riverton where the Court held that an enforcement notice issued under planning legislation must be clear and unambiguous in its terms.[26] Duggan J said:
…it is also essential that the notice indicate in reasonably clear terms the nature of the breach and what is required in order to put it right. A notice which does not achieve this is not a proper notice under the Act…[27]
[26]Sullivan v District Council of Riverton (1997) 69 SASR 234, 249 (Duggan J, Doyle CJ agreeing at 235, Lander J agreeing at 250).
[27]Ibid 246.
In Bio-Organics Pty Ltd v Chief Executive Officer, Department of Water and Environment Regulation, Allanson J held that a closure notice given under environment protection legislation must unambiguously identify and make clear what must be done.[28] The word ‘specify’ must take its more precise shade of meaning from the context and be regarded as requiring only a degree of specification that the subject matter and circumstances admit of or the purpose in hand requires.[29]
[28][2018] WASC 236, [34].
[29]Ibid [36].
In addition to its other functions, s 62A entails penal consequences. It is an indictable offence to contravene without reasonable cause the requirements of a notice. It is an offence not to comply with reporting requirements specified in the notice. While Gobbo J held in Simsmetal that this did not mean that a strict construction of the notice should be adopted, it remains a relevant consideration.[30]
[30]Simsmetal (n 10) 629; see also Scott v Cawsey (1907) 5 CLR 132, 154–5 (Isaacs J); Alcan (n 7) 49.
Tribunal reasons
In determining the preliminary questions of law, the Tribunal was not referred to Simsmetal or any of the other authorities that I have cited. There is no reference to any of these authorities in the Tribunal’s reasons or in the written submissions made by the parties to the Tribunal.
The Tribunal determined that the notice was a notice that required investigation, reports and ultimately works.[31]
[31]Tribunal reasons [34].
This determination was, with respect, incorrect. While it is true that the notice required the engagement of an EPA-appointed auditor, and the auditor would in the future evaluate and report on whether the subject land required further clean up, this did not mean that works were specified in the notice itself. The notice contained current reporting requirements but no extant general requirements. It did not set out any works required to be completed or performed.
The Tribunal then disagreed with LPG Laverton’s submission that the notice did not allow for any works to occur on the subject land as taking an overly narrow view of the requirements set out in the notice. The reason given is that requirement 3.5.1 mandated that an auditor-verified clean up plan be provided to the relevant authorised officer of the EPA.[32]
[32]Ibid [35].
The notice showed requirement 3.5.1 to be a completed requirement. No further action needed to be taken as to this requirement. In any event, as Gobbo J held in Simsmetal, a notice directing the carrying out of measures in the future that are yet to be specified is not one specifying clean up measures.[33]
[33]Simsmetal (n 10) 630.
After noting LPG Laverton’s submission that the notice had not directed any works to occur on the subject land, the Tribunal held that this level of analysis was not necessary in order to ascertain whether s 62A(1B) ousted the operation of the PE Act.[34]
[34]Tribunal reasons [36].
These considerations led the Tribunal to observe that the interpretation urged by LPG Laverton would require a decision maker to look at each and every clean up notice issued by the EPA to ascertain whether a planning permit is required. The observation is accurate in the sense that this is what s 62A(1B) does require in order to determine whether planning or building controls have been ousted by a notice. Although the Tribunal considered that this requirement added unnecessarily to administrative and regulatory burdens,[35] I consider that on its proper construction, this is what s 62A(1B) requires.
[35]Ibid [38].
The Tribunal then concluded that the better view was that s 62A(1B) of the EP Act ousted the operation of the PE Act every time a notice was issued.[36] This conclusion was not correct as a notice only ousts the operation of the PE Act to the extent that the notice directs the performance of specified measures which require a permit or consent to be given under the operative planning controls.
[36]Ibid [44].
For the reasons that I have given, the Tribunal reasons contain errors of law. It led the Tribunal to decide that it did not have jurisdiction to hear the applications for review, when in fact it did.
Australian Vinyls’ other submissions
Australian Vinyls submitted that the final audit under s 53X could not occur unless and until remediation works had been carried out. The notice contemplated that clean up works would be undertaken and specified the means of assessment.
The submission does not address the requirements of ss 62A(1) or (1B). As I have said, the notice is only effective to oust the ordinarily applicable planning controls to the extent that the notice specifies measures to be completed and performed. Under the notice, there are only two reporting requirements and no specific requirement to complete or perform works. Australian Vinyls is not directed by the notice to construct an environmental bund, therefore it requires a permit to do so under the planning scheme. Despite LPG Laverton’s objection, the Council decided to grant a permit. The Tribunal has jurisdiction to review the decision to grant a permit and impose conditions.[37]
[37]PE Act ss 80, 82.
Australian Vinyls sought to distinguish Simsmetal. It submitted that:
(a)in the present case the recipient of the notice raised no objection to the form or content of the notice;
(b)the effect of the notice here was to create a framework within which the precise nature of the works required to be undertaken could be refined through assessment, investigation and amendment of the notice;
(c)the works had been sufficiently specified by the RAP and the plans contained in the planning application;
(d)the decision in Simsmetal was made in relation to a notice issued prior to the 1989 Act;
(e)it was within power for the EPA to issue a clean up notice which specified the nature and scope of the clean up without dictating the precise scientific, technological or engineering pathways to be adopted in achieving these outcomes;
(f)it was commonplace for the EPA to shift to statutory environmental auditors the principal role of evaluating and assessing contaminated land;[38] and
(g)the Court should be reluctant to permit a collateral challenge to the validity of the notice to succeed.
[38]See Premier Building & Consulting Pty Ltd v Spotless Group Ltd [2007] VSC 377, [126] (Byrne J).
The difficulty is that none of these submissions address the plain words of ss 62A(1) and (1B) which required that the measures directed by the EPA be specified in the notice before planning and building controls are overridden. The fact that works of an unspecified kind might be required in the future is insufficient to oust the operation of the PE Act and the planning scheme.
Australian Vinyls submitted that the Tribunal was correct to observe that decision making under the PE Act and the EP Act must be integrated having regard to the purposes of both Acts. The need for integrated decision making is not in doubt.[39] However, the determination whether and to what extent the PE Act and relevant planning scheme may apply to works to be performed following service of a notice remains a jurisdictional requirement going as to the powers of responsible authorities and the role of the Tribunal.
[39]Rozen v Macedon Ranges Shire Council & Anor [2010] VSC 583 (Osborn J); Boroondara City Council v 1045 Burke Road Pty Ltd (2015) 49 VR 535 (Warren CJ, Santamaria JA, Garde AJA); Hoskin v Greater Bendigo City Council (2015) 48 VR 715 (Warren CJ, Osborn and Santamaria JJA).
The 1989 Act expanded the definition of ‘clean up’ and effected significant enhancements to the EP Act. The requirement for a notice to specify the measures to be completed remained.
Australian Vinyls referred to the Second Reading Speech for the 1989 Bill.[40] There is nothing in the passages cited that casts any light on the proper construction of ss 62A(1) and (1B).
[40]Victoria, Parliamentary Debates, Legislative Assembly, 12 October 1989, 1485; Victoria, Parliamentary Debates, Legislative Council, 17 November 1989, 1536.
Finally, Australian Vinyls submitted that the construction for which LPG Laverton contended would result in a significant upheaval of what appeared to be a well-established understanding of the scope and ambit of the EPA’s regulatory powers. I disagree. Over the last 30 years, the prevailing understanding of the effect and operation of notices has been found in Simsmetal and like cases. This has remained to the present day.
Conclusion
LPG Laverton has established that the Tribunal erred on the questions of law and ground in the notice of appeal with the effect that the Tribunal declined jurisdiction when it had jurisdiction to determine the applications for review before it.
LPG Laverton will be granted leave to appeal, and the appeal allowed. The order of the Tribunal will be set aside, and the proceedings remitted to the Tribunal to be determined by a differently constituted Tribunal.
2
5
0