Oshlack v Rous Water

[2011] NSWLEC 73

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Oshlack v Rous Water [2011] NSWLEC 73

Hearing dates:

14 March 2011

Decision date:

28 April 2011

Jurisdiction:

Class 4

Before:

Biscoe J

Decision:

Preliminary questions answered as follows:

(a) Was the First Respondent, Rous Water, required to comply with the provisions of ss 111 and 112 of the Environmental Planning and Assessment Act 1979 with respect to the impacts on human health and the environment of adding fluorine to the water supply when determining to approve the construction and operation of the Clunes, Dorroughby, Corndale and Knockrow fluoridation plants? Yes, except that insofar as any of those plants was the subject of the direction of 12 December 2007 to add fluorine to the Richmond Valley Water Supply the First Respondent was required to comply with s 111 but not s 112;

(b) Was the Second Respondent, Ballina Shire Council, required to comply with the provisions of ss 111 and 112 of the Environmental Planning and Assessment Act with respect to the impacts on human health and the environment of adding fluorine to the water supply when determining to approve the construction of the Marom Creek Fluoridation plant? Yes.

Catchwords:

JUDICIAL REVIEW:- whether an activity by a water supply authority pursuant to an approval or direction under the Fluoridation of Public Waters Supplies Act 1957 to add fluorine to the water supply under its control is subject to ss 111 and 112 of the Environmental Planning and Assessment Act 1979.

Legislation Cited:

Broadcasting and Television Act 1942 (Cth) ss 89, 132
Code of Practice for the Fluoridation of Public Water Supplies
Constitution s 109
Dangerous Goods Act 1975
Environmental Planning and Assessment Act 1979 ss 111, 112, 113, 114
Environmental Planning and Assessment Regulation 2000 cl 228
Fluoridation of Public Water Supplies Act 1957 ss 3, 6, 6A, 6B, 11
Fluoridation of Water Supplies Regulation 2007 cll 5, 6, 7, 8
National Parks and Wildlife Act 1974
Occupational Health and Safety Act 2000
Protection of the Environment Operations Act 1997
Roads Act 1993 s 88

Cases Cited:

Coalcliff Community Association Inc v Minister for Urban Affairs and Planning [1999] NSWCA 317, 106 LGERA 243
Commercial Radio Coffs Harbour Ltd v Fuller [1986] HCA 42, 161 CLR 47
Ferdinands v Commissioner for Public Employment [2006] HCA 5, 225 CLR 130
Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231
Prineas v Forestry Commission of NSW (1983) 49 LGRA 402

Category:

Separate question

Parties:

Al Oshlack (Applicant)
Rous Water (First Respondent)
Ballina Shire Council (Second Respondent)
Lismore City Council (Third Respondent)

Representation:

Mr J Johnson (Applicant)
Mr N J Williams SC (Respondents)
N/A (Applicant)
Blake Dawson (Respondents)

File Number(s):

40570 of 2010

JUDGMENT

Introduction

1. The addition of fluorine to public water supplies in New South Wales is regulated by the Fluoridation of Public Water Supplies Act 1957 ( Fluoridation Act ). Under that Act, the Secretary of the Department of Health may grant approval…