Prevelly Wilderness Progress Association Inc v Department of Environmental Protection - [2000] WASC 51

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: PREVELLY WILDERNESS PROGRESS ASSOCIATION INC -v- DEPARTMENT OF ENVIRONMENTAL PROTECTION & ORS [2000] WASC 51

CORAM: HEENAN J

HEARD: 22 FEBRUARY 2000

DELIVERED : 3 MARCH 2000

FILE NO/S: CIV 1073 of 2000

MATTER :Application for writ of certiorari and injunction

BETWEEN: PREVELLY WILDERNESS PROGRESS ASSOCIATION INC
Applicant
AND
BRYAN JENKINS, THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION
Respondent

Catchwords:

Environmental Law - Upgrading of sewage treatment plant - Works approval sought - Department required to seek comments from parties with direct interest - Comments not sought from applicant or local authority

Prerogative writs - Certiorari - Standing of applicant - Interest of applicant in subject matter of approval unknown to Department - Denial to local authority of opportunity to comment not matter upon which applicant can rely - Too late for Court to interfere

Legislation:

Environmental Protection Act 1986 s 54, s 60

Result:

Application refused

Representation:

Counsel:

Applicant:     Mr P Redding
Respondent:     Ms C J Thatcher
Water Corporation
(First Interested Party)        :     Mr S Penglis
Gnarabup Beach Pty Limited
(Second Interested Party)     :     Mr L A Stein

Solicitors:

Applicant:     Williams & Hughes
Respondent:     State Crown Solicitor
Water Corporation
(First Interested Party)        :     Freehill Hollingdale & Page
Gnarabup Beach Pty Limited
(Second Interested Party)     :     Phillips Fox

Case(s) referred to in judgment(s):

Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493
Bridgetown/Greenbushes Friends of the Forest Inc v Department of Conservation and Land Management & Ors (1997) 18 WAR 126
R v Liverpool Corporation, Ex parte Liverpool Taxi Fleet Operators Association [1972] 2 QB 299
Re Smith; ex parte Rundle (1991) 5 WAR 295
Re Warden French; ex parte Serpentine-Jarrahdale Ratepayers and Residents Association (1994) 11 WAR 315

Case(s) also cited:

Adelaide Pistol Club Incorporated v District Council of Munno Para and Musolino (1981) 28 SASR 186
Advanced Hobbies International Pty Ltd v Dawn Developments Pty Ltd (1995) 31 IPR 419
American Cyanamid Co v Ethicon [1975] AC 396
Attorney General v Great Eastern Railway Company (1880) 5 AC 473
Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148
Dairy Industry Marketing Authority v Southern Farmers Co-Operative Ltd (1982) 39 ALR 613
Donnelly v Amalgamated Television Services Pty Ltd & Anor (1998) 45 NSWLR 570
Gavranich & Anor v Shire of Wanneroo & Anor, unreported; SCt of WA (Miller J); Library No 980473; 25 August 1998
Gavranich & Anor v Shire of Wanneroo & Anor, unreported; SCt of WA (Templeman J); Library No 980522; 1 September 1998
Gudgeon v Black (1994) 14 WAR 158
Inland Revenue Commissioners v National Federation of Self-employed and Small Business Ltd [1982] AC 617
Jones v Dunkel (1959) 101 CLR 298
Kotan Holdings Pty Ltd v Ors v TPC (1992) 102 ALR 51
Leisure Entertainment Pty Ltd v Willis (1996) 64 FCR 205
Parkes Rural Distributions Pty Ltd v Glasson (1986) 7 NSWLR 332
R v Hillington Borough Council; Ex Parte Royco Homes Pty Ltd [1974] 1 QB 720
R v O'Sullivan; Ex parte Clarke [1967] WAR 168
R v Paddington North and St Marylebone Rent Tribunal [1956] 1 QB 229
Savage v Teck Explorations Ltd, unreported; FCt SCt of WA; Library No 7285; 16 September 1988
Southern Tableland Insurance Brokers Pty Ltd (in liq) v Schomberg (1986) 11 ACLR 337
Stampalia v The Racing Penalties Appeal Tribunal of Western Australia [1999] WASC 7; 21 May 1999
Talbot v Lane (1994) 14 WAR 120
The Australian Heritage Commission v Mount Isa Mines Limited (1997) 187 CLR 297
The Queen v District Council of Berri; Ex parte Clarke (1984) 36 SASR 404
West Australian Field and Game Association v Minister for Conservation and Land Management (1992) 8 WAR 64

HEENAN J: The applicant is a voluntary non-profit organisation set up in August 1993. In broad terms its objectives are to ascertain the requirements of ratepayers and residents for future planning in the Prevelly-Gnarabup area and, presumably, to take steps to put those requirements into effect. Now it seeks an order nisi for a writ of certiorari and further relief in respect of approval granted by the respondent to upgrade a sewage treatment plant for a housing estate at Gnarabup, within the Shire of Augusta/Margaret River.
Shortly after the hearing of the present application began a question arose as to the standing of the applicant to apply for the further relief which it seeks. In the notice of motion that relief is expressed to include an order that specified persons "be enjoined from carrying out any work on or near" the site and an order that all work to be undertaken under the approval be "stayed" until after the hearing of the application. Because the applicant has no special interest in the subject matter of the action over and above that enjoyed by the public generally, it has no locus standi to obtain an injunction (see Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 per Gibbs J at 530 - 531 and per Mason J at 547 - 548). Acknowledging that to be so, counsel for the applicant submitted that his client was seeking merely a stay of works, in effect a stay of proceedings, to preserve the subject matter of the litigation. He referred to O 56 r 5(2) of the Rules of the Supreme Court 1971, which provides that "an order nisi for Certiorari or Prohibition, shall, if the Court so directs, operate as a stay of the proceedings in question until the determination of the application, or until the Court otherwise orders".
In my opinion, as the works approval already has been granted, there are no "proceedings" left to be stayed. The applicant truly is seeking an interlocutory injunction, not a stay of proceedings, and it does not have the standing to obtain that relief. However, the requirements of standing for the issue of a prerogative writ are more liberal than those to obtain an injunction (see Re Smith; ex parte Rundle (1991) 5 WAR 295 at 305 and 315 per Malcolm CJ and Re Warden French; ex parte Serpentine-Jarrahdale Ratepayers and Residents Association (1994) 11 WAR 315 at 329 per Ipp J), and it was conceded on behalf of the respondent and the developer (who are the only other parties interested in this aspect of the matter) that the applicant has standing for the purposes of the application for certiorari.
In 1994 Gnarabup Beach Pty Limited, the developer of the estate, constructed the first stage of the sewage treatment plant. The Water Corporation has operated the plant since then. Because its capacity proved to be insufficient the developer proposed to upgrade the plant, meeting the cost by subdividing and selling more of the land from the estate. On 13 May 1998 a delegate of the respondent issued a document entitled "works approval", showing the "expiry date of works approval" as Wednesday 12 May 1999. Attached to that document was a further document entitled "conditions of works approval" which set out certain conditions to be fulfilled in the construction of the second stage of the plant.
As it happened, no work was done on the design or construction of the second stage until November 1999. Meanwhile, on 31 March 1999 a letter was written on behalf of the developer requesting the respondent to renew the works approval for a further twelve months. The papers before the Court show that a delegate of the respondent subsequently issued two documents, each entitled "amended works approval", dated respectively 9 June 1999 and 30 November 1999. Each shows that the "commencement date of works approval" was Wednesday 13 May 1998 and the "expiry date of works approval" as Friday 12 May 2000. The only apparent difference between those two documents is the date of issue but the "conditions of works approval" which accompanied each of them differed slightly. In the case of that which accompanied the document issued on 30 November 1999 its preamble included a requirement for the issue of a licence prior to commissioning of the upgraded plant. It seems that the requirement was included so as to comply with a direction of the Minister for the Environment following appeals, or applications for leave to appeal, which the applicant and the Shire had made to the Minister shortly after they became aware of the grant of the "amended works approval" in June 1999. For present purposes the difference between the two "amended works approvals" is of no significance and the latter can be ignored.
In the notice of motion which instituted these proceedings it is asserted on behalf of the applicant that the respondent and/or his delegate have no power pursuant to the provisions of the Environmental Protection Act 1986 to amend works approvals or, in the alternative, to amend a works approval "that continued in force only for the time specified in the works approval". At the hearing, after I had put to counsel for the applicant that there appeared to be no reason why the respondent should not issue new works approvals from time to time, counsel did not seek to pursue the question as to whether the respondent had the power to amend. Instead he confined his argument to the contention that, as the earlier approval had expired on 12 May 1999, the respondent should have complied with the provisions of s 54(2) and (3) of the Act before granting another approval on 9 June 1999.
The provisions in question set out the steps to be taken when an application for a works approval is received. Where relevant they read as follows:
"(2)On receiving an application made under subsection (1), the Chief Executive Officer shall -
(a)if that application does not comply with that subsection, decline to deal with that application and advise the applicant accordingly; or
(b)if that application complies with that subsection, advise the applicant that his application has been received and seek comments thereon from any public authority or person which or who has, in the opinion of the Chief Executive Officer, a direct interest in the subject matter of that application.
(3)Subject to subsection (4), the Chief Executive Officer shall, after having taken into account any comments received from any public authority or person from which or whom comments were sought under subsection (2) (b) and subject to section 60 -
(a)grant a works approval subject to such … conditions …. as the Chief Executive Officer specifies in the works approval; or
(b)refuse to grant a works approval."
Thus in dealing with the application the respondent is required to
(1)form an opinion as to who are parties with a direct interest in the subject matter of the application,
(2)seek comments from each of those parties,
(3)take into account any comments received from those parties and, pursuant to s 60, any draft policy approved by the Minister and
(4)decide whether or not to grant a works approval.
It is common ground that neither the respondent nor anyone on his behalf sought comments from either the applicant or the Shire before granting the approval in June 1999. Counsel for the applicant submitted that the respondent should have formed the opinion that each of those parties had a direct interest in the subject matter and should have sought comments from both of them.
Ms Catherine Harrison was the delegate of the respondent who issued the document dated 9 June 1999. In her affidavit sworn 28 January 2000 Ms Harrison said that she did not seek any comments from the applicant in relation to the matter because she had not heard of the applicant at that time. In relation to the Shire she said that she did not form the opinion that the Shire had a direct interest in the subject matter. She went on to say:
"6.From my reference to the records of the Department of Environmental Protection I believe that the Shire had been provided with copies of two previous works approvals granted in respect of the waste water treatment plant, after the grant of the previous works approvals, and had not made any comments in relation to those previous works approvals or lodged any appeal in respect of those previous works approvals. Those previous works approvals were granted on 7 February 1994 (authorising the construction of the waste water treatment plant) and 13 May 1998 (authorising the same extension of the waste water treatment plant as was authorised by the Works Approval).
7.From my reference to the records of the Department of Environmental Protection I believe that, prior to 9 June 1999, the only correspondence which the Department had received from the Shire in relation to the waste water treatment plant was a letter of 13 May 1999 received by the Department's South West Regional Office. Annexed hereto and marked CPH1 is a true copy of that letter of 13 May 1999. As a result of receiving that letter, the Department wrote to the Water Corporation which constructed a bund to contain flows of waste within the boundary of the waste water treatment plant. No further correspondence was received from the Shire in relation to this matter. I was not aware of any of this correspondence on or prior to 9 June 1999."
The letter of 13 May 1999, which was referred to in Ms Harrison's affidavit, was written by the manager of Building/Health for the Shire. Its text reads as follows:
"GNARABUP SEWERAGE TREATMENT PLANT
I refer to my recent discussions with you regarding community concerns about the abovementioned facility having possible detrimental impacts on the surrounding environment and now seek your department's formal comments on the operation of the facility.
As discussed the concerns primarily related to effluent discharge outside the perimeter fence, build up of effluent sediment within the soils adjacent to the facility together with the possibility of effluent infiltrating into ground water.
Council has also been provided with a copy of test results of soil and water samples indicate high levels of Termo-Tolerant Coliforms.
A copy of the test results are provided for your information and your comments on them as well as the other matters would be appreciated."
A copy of a letter written to the Water Corporation on 26 May 1999 on behalf of the Department is annexed to the affidavit of Mr Manfred Boldy, the Director of Development Services for the Shire. The text of that letter reads as follows:
"GNARABUP WASTEWATER TREATMENT PLANT
The Department of Environmental Protection has received a letter from the Shire of Augusta Margaret River regarding the above treatment plant.
It appears that a member of the Gnarabup Committee of the Prevelly Wilderness Progress Association is concerned about the ponding of treated effluent outside of the fenced infiltration area at the treatment plant. I understand that results of water and soil sampling indicates elevated level of thermo tolerant coliforms. I recognise that wastewater is not disinfected prior to discharge, there are no levels set for coliforms in soil, and that water samples were likely to have been collected within the fenced area. I also understand that the Water Corporation has constructed a bund to prevent surface ponding outside of the fenced area.
Notwithstanding this, I not believe that the public should be able to have close access to treated wastewater disposal areas. Further, there may be ponding outside the fenced area this winter caused by rainfall, which may be perceived by the community as wastewater. Accordingly, I believe it would be prudent if the Water Corporation took immediate action to rectify this situation. Some options I see to resolve this matter include:
•to install a fence around the boundary of your property (required when you upgrade the plant in the near future),
•increase or improve the bund to ensure that there is no ponding outside the existing fenced area,
•import fill and/or grade the site to reduce the depression where water has ponded in the past (outside of the fenced area).
I seek your urgent response on what action the Water Corporation will take to resolve this matter, and the timelines for doing so.
Should you have any questions in relation to the above matter, please contact Mr Guy Watson at the South West Regional Office on 9722 0800 or facsimile 9791 5514."
It is apparent from the above correspondence that, although Ms Harrison (who was stationed in Perth) had not heard of the applicant prior to 9 June 1999, Mr Watson (who was stationed in Bunbury) had done so at least a fortnight before and also was aware that a member of the Gnarabup Committee of the applicant was "concerned about the ponding of treated effluent outside of the fenced infiltration area at the treatment plant".
In considering whether the respondent or his delegate should have formed the opinion that the applicant had a direct interest in the subject matter of the application, it is important to note that the correspondence mentioned refers to concern not on the part of the applicant but on the part of a member of a committee of the applicant. Although the correspondence shows that the member had a direct interest in the operation of the existing plant, it falls far short of showing that the applicant had a direct interest or was likely to have had a direct interest in the construction of the second stage, the subject matter of the works approval then under consideration.
In Bridgetown/Greenbushes Friends of the Forest Inc v Department of Conservation and Land Management & Ors (1997) 18 WAR 126 at 186 Templeman J agreed with Parker J that "it is not open to a person to claim he has been denied natural justice because another person has been denied a legitimate expectation to be heard." In R v Liverpool Corporation, Ex parte Liverpool Taxi Fleet Operators Association [1972] 2 QB 299 at 308 - 309 Lord Denning MR said:
"The writs of prohibition and certiorari lie on behalf of any person who is a 'person aggrieved', and that includes any person whose interests may be prejudicially affected by what is taking place. It does not include a mere busybody who is interfering in things which do not concern him; but it includes any person who has a genuine grievance because something has been done or may be done which affects him …."
The failure to seek comment from the Shire prior to granting approval on 9 June 1999 is not a matter on which the applicant can rely in these proceedings. In any event, bearing in mind that prior to the grant of the works approval in May 1998 the Shire had been informed of the proposal to upgrade the plant and had not commented thereon and bearing in mind also that the concern which it conveyed to the respondent in May 1999 related to ponding from an existing plant and not to the proposed construction of the second stage, I am unable to conclude that a reasonable person in the position of the respondent or his delegate necessarily would have formed the opinion that the Shire had a direct interest in the application for works approval.
In summary, I do not believe that the applicant has established an arguable case that the respondent should have formed an opinion that either the applicant or the Shire had a direct interest in the subject matter of the application for the approval granted on 9 June 1999. Even if I had thought that there was such a case, it is unlikely that I should have granted the application. In my opinion it is too late now for this Court to interfere. The upgrading of the plant is well advanced. At a cost of about $750,000 the second stage is more than 73 per cent complete. The balance of convenience clearly is in favour of allowing the work to proceed without the uncertainty of litigation hanging like a cloud over the heads of those who are financially committed to its completion.
The application is refused.