PROCESS MINERALS INTERNATIONAL PTY LTD and DEPARTMENT OF MINES AND PETROLEUM
[2012] WASAT 115
•31 MAY 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: DANGEROUS GOODS SAFETY ACT 2004 (WA)
CITATION: PROCESS MINERALS INTERNATIONAL PTY LTD and DEPARTMENT OF MINES AND PETROLEUM [2012] WASAT 115
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: 18 MAY 2012
DELIVERED : 31 MAY 2012
FILE NO/S: CC 484 of 2012
CC 486 of 2012
BETWEEN: PROCESS MINERALS INTERNATIONAL PTY LTD
Applicant
AND
DEPARTMENT OF MINES AND PETROLEUM
First respondentCOLEMAN BROTHERS PTY LTD
Second respondent
Catchwords:
Extension of time to apply for review of decision - Meaning of 'person aggrieved' - Statutory construction if statute does not explicitly confer a right to seek review on neighbour - Third party appeal
Legislation:
Aboriginal Heritage Act 1972 (WA)
City of Albany Town Planning Scheme No 3, cl 6.7
Dangerous Goods Safety (Storage and Handling of Nonexplosives) Regulations 2007 (WA), reg 4, reg 26, reg 26(2), reg 30(1), reg 39, reg 44, reg 44(2), reg 48, reg 48(3), reg 75, reg 75(4)
Dangerous Goods Safety Act 2004 (WA), s 18, s 19, s 20, s 67, s 67(2)
Dangerous Goods Safety Bill 2002
Dangerous Goods Sites: Emergency Planning Code (Second edition), cl 4.5
Interpretation Act 1984 (WA), s 19(1)(b)(i)
Planning and Development Act 2005 (WA), s 242, s 263(3), Pt 14
State Administrative Tribunal Act 2004 (WA), s 20(1)
State Administrative Tribunal Rules 2004 (WA), r 9
Result:
Application for an extension of time dismissed
Category: B
Representation:
Counsel:
Applicant: Mr M Bennett
First respondent : Mr I Repper
Second respondent : Mr C Wallace
Solicitors:
Applicant: Bennett & Co
First respondent : State Solicitor's Office
Second respondent : Lavan Legal
Case(s) referred to in decision(s):
AB and State of Western Australia and Anor [2011] HCA 42
Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493
Canal Rocks Pty Ltd and Western Australian Planning Commission [2010] WASAT 176
Curlewis and City of Albany [2011] WASAT 85
Genevieve Diggins and Ors and Shire of Busselton and Anor [1999] WATPAT 1
North Coast Environmental Council Inc v Minister of Resources (1994) 127 ALR 617
Onus v Alcoa of Australia Ltd (1981) 149 CLR 27
Process Minerals International Pty Ltd v Coleman Bros Pty Ltd [2012] WASC 178
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69]; [1998] HCA 28
Traditional Owners Nyiyaparli People and Minister For Health Indigenous Affairs [2009] WASAT 71
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The hearing concerned a preliminary question, namely, whether an extension of time should be granted to lodge an application for review of a decision to issue licences to store dangerous goods. The question before the Tribunal was whether the applicant, Process Minerals International Pty Ltd, was a 'person aggrieved', pursuant to s 67(2) of the Dangerous Goods Safety Act 2004 (WA), who could seek a review of the decision.
Process Minerals International Pty Ltd contended that, although the Dangerous Goods Safety Act 2004 (WA) does not define 'person aggrieved', a broad interpretation should be given to the term since the preventative and protective measures of the Dangerous Goods Safety Act 2004 (WA) are aimed at taking into account the interests of persons, property and the environment that may be affected by the location of, or an incident arising at, a dangerous goods storage facility. As an immediate neighbour of a site where permission had been granted for dangerous goods to be stored, Process Minerals International Pty Ltd should have been consulted, its interests should have been taken into account when conditions were imposed on the licences, and it should be regarded as a 'person aggrieved' for purposes of the Dangerous Goods Safety Act 2004 (WA), so as to seek a review of the decision to issue the licences.
The second respondent, Coleman Brothers Pty Ltd, agreed that the term 'person aggrieved' should be read in the context of the Dangerous Goods Safety Act 2004 (WA). Coleman Brothers Pty Ltd concluded, however, that the Dangerous Goods Safety Act 2004 (WA) does not afford a member of the public, such as Process Minerals International Pty Ltd, with the right to be consulted, to be notified, or to be treated as a 'person aggrieved'. Coleman Brothers Pty Ltd contended that Process Minerals International Pty Ltd has no more rights than any other member of the public.
The first respondent, the Department of Mines and Petroleum, contended that, in order for a person to be regarded as a 'person aggrieved', it should have a legal grievance, and not a mere complaint as a member of the public, albeit a neighbour in close proximity to a dangerous goods storage site. The Department of Mines and Petroleum therefore concurred with Coleman Brothers Pty Ltd that Process Minerals International Pty Ltd cannot be regarded as a 'person aggrieved' under the Dangerous Goods Safety Act 2004 (WA).
The Tribunal agreed with the contentions of the respondents, namely, that Process Minerals International Pty Ltd is not a 'person aggrieved' under the Dangerous Goods Safety Act 2004 (WA). The Tribunal emphasised that the concept 'person aggrieved' must be construed within the context of the Dangerous Goods Safety Act 2004 (WA) and that neither the Act nor the Regulations or Code that were promulgated under the Act gives the right to a member of the public, including to a neighbour, to be treated as a 'person aggrieved' for the mere fact that they may be affected by, or aggrieved about, the location of a dangerous good site. The fact that the operator of a dangerous goods storage site must identify the persons, property and environment that may be at risk if an incident occurs at the storage site does not elevate those persons who may be affected in the event of an incident to a 'person aggrieved' under the Dangerous Goods Safety Act 2004 (WA).
The application for an extension of time to lodge the application was therefore dismissed, because Process Minerals International Pty Ltd is not a 'person aggrieved' under s 67(2) of the Dangerous Goods Safety Act 2004 (WA).
Introduction
The Chief Officer of the Department of Mines and Petroleum (Chief Officer) issued licences to Coleman Brothers Pty Ltd (Coleman) to operate a site where storage of dangerous goods occurs pursuant to the Dangerous Goods Safety Act 2004 (WA) (DG Act). The approval was granted in December 2010 by way of licences DGS021394 and DGS021395 (licences) for the storage of 10,000 tonnes of solid ammonium nitrate.
Process Minerals International Pty Ltd (Process Minerals) brought an urgent application in March 2012 to extend the time in which an application for review of the decision of the Chief Officer may be lodged.
The proceeding the subject of this decision is directed solely at the preliminary question: whether the time to lodge an application for review should be extended.
The Coleman site (Lot 842 Great Northern Highway) is situated approximately 230 metres from the Process Minerals site (Lots 503 504 Great Northern Highway) in the vicinity of the Town of Port Hedland. The Coleman and Process Mineral sites are separated by a road reserve and Great Northern Highway. Although the Process Minerals site is within the industrial area of Port Hedland, a permanent caretaker resides on the premises pursuant to approval that was given by the Town of Port Hedland.
Process Minerals is of the view that it should have been consulted about the issuing of the licences, that its interests should have been taken into account when a risk assessment was done and a emergency plan was developed, and that the licences would either not have been granted or conditions would have been imposed on the licences had the interests of Process Minerals been considered.
Process Minerals submitted two expert reports in support of its contention that, due to its proximity to the Coleman storage site, its caretaker and facilities may be at risk of injury, harm and/or damage should an incident occur at the Coleman site.
Issues
The issues to be determined in these proceedings are as follows:
1)Is Process Minerals a 'person aggrieved' pursuant to s 67(2) of the DG Act?
2)If yes, was Process Minerals entitled to be notified by the Chief Officer of the decision to grant the licences?
3)If yes, was Process Minerals properly notified?
4)Should an extension of time be granted for the application for review to be lodged?
Events leading to the hearing
The application for review was lodged on 28 March 2012. The first directions hearing took place on 12 April 2012, at which orders were made for submissions to be filed in regard to the preliminary question. A hearing date was set for 16 May 2012.
On 16 May 2012, the date for which the hearing was set, the Tribunal was made aware of an issue as to whether the legal representative of Coleman could continue to act in these proceedings. The question was the subject of proceedings in the Supreme Court on 17 May 2012 (Process Minerals International Pty Ltd v Coleman Bros Pty Ltd [2012] WASC 178). The hearing was therefore adjourned to 18 May 2012.
All the parties made written and oral submissions supported by statements of evidence and documents. The Tribunal's decision was reserved at the conclusion of the hearing on 18 May 2012. The Tribunal took all of the submissions into account in coming to its decision.
Statutory framework
The DG Act relevantly provides as follows:
67. Review of decisions under this Act
(1)In this section
reviewable decision means
(a)a decision made under Part 4 by the Chief Officer;
(b)a direction given under section 46(2) by the Chief Officer;
(c)a decision made under section 54 by the Chief Officer;
(d)a decision made under the regulations by the Chief Officer in relation to an application for, or in relation to, an authorisation, licence, registration, permit or other approval.
(2)A person aggrieved by a reviewable decision may apply to the State Administrative Tribunal for a review of the decision.
Contentions
Mr Bennett, for Process Minerals, contends that, since the DG Act and the Dangerous Goods Safety (Storage and Handling of Nonexplosives) Regulations 2007 (WA) (Regulations) do not define 'persons aggrieved', ordinary principles of statutory construction should be applied to give meaning to the term. In doing so, the nature and purpose of the DG Act must guide the Tribunal. Mr Bennett says the term 'person aggrieved' should not be given a restrictive interpretation, although he accepts that it does not include any member of the public who may be unhappy about the granting of the licences. Mr Bennett says that, due to the close proximity of the Process Minerals site to the storage site of Coleman, Process Minerals should be treated as a 'person aggrieved'. The permanent caretaker on the Process Minerals site, the infrastructure and the nature of the activities conducted on the Process Minerals site are all potentially impacted upon by the granting of the licences. There are no buildings other than a road reserve and Great Northern Highway between the Coleman site and the Process Minerals premises. The closeness of the Process Minerals site to that of the Coleman storage facility brings Process Minerals within the framework as a 'person aggrieved', who can seek a review of the licences or the conditions imposed on the licences under the DG Act.
Mr Wallace, for Coleman, agrees that, since the term 'person aggrieved' is not defined in the DG Act, the construction thereof must take place within the framework of the entire DG Act. The use of the term 'person aggrieved' suggests a restricted category of the persons who can seek a review, and does not refer to the public in general. In these proceedings, Process Minerals, albeit a neighbour, does not qualify as a person aggrieved under the DG Act. Such an interpretation is consistent with the purposive construction of legislation, whereby the entirety of a statute is taken into consideration when a specific clause or section is interpreted. The DG Act does not place any obligation on Coleman, its experts or the Chief Officer to consult with Process Minerals, to inform it of a decision to issue the licences, or to receive comments from Process Minerals in regard to an application.
Mr Repper, for the Department of Mines and Petroleum, concurs with the submissions of Coleman, and says that the mere fact that Process Minerals is a neighbour of Coleman, and that it may be impacted upon in the event of an incident at the storage site, is not sufficient to bring Process Minerals within the category of a 'person aggrieved'. Mr Repper emphasised that there is no statutory intention of the DG Act to allow persons who may be hypothetically affected by the presence of a dangerous goods facility to be regarded as a 'person aggrieved'.
Consideration: Is Process Minerals a 'person aggrieved' pursuant to s 67(2) of the DG Act?
The Tribunal will first consider the question whether Process Minerals is a 'person aggrieved' pursuant to s 67(2) of the DG Act. If the answer to the question is 'yes', the remaining questions as listed in para 13 will be considered. If, however, the answer to the first question is 'no', it is unnecessary to consider the remaining questions.
The Tribunal finds that Process Minerals is not a 'person aggrieved' pursuant to s 67(2) of the DG Act.
The reasons for this finding follow.
No definition of 'person aggrieved'
Section 67(2) of the DG Act provides that a 'person aggrieved' may seek a review of a reviewable decision. A reviewable decision is a decision made 'in relation' to the issuing of the licence. It is not contested that the decision the subject of these proceedings is a reviewable decision. The dispute concerns the construction to be given to the term 'person aggrieved'.
The Regulations also do not define 'person aggrieved'. The Regulations provide that 'a person' may apply for a licence (reg 26).
In the absence of a definition of the term 'person aggrieved', the meaning thereof must be discerned from the DG Act in its totality, the objectives of the DG Act and the 'evident purposes' of the DG Act in accordance with the so called 'purposive' approach to statutory construction. (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69]; [1998] HCA 28).
In order to obtain the proper construction of s 67(2) of the DG Act, the Tribunal may also, pursuant to s 19(1)(b)(i) of the Interpretation Act 1984 (WA), have regard to the parliamentary debates that gave rise to the DG Act. The meaning of the term 'person aggrieved' and the different interpretations given to the term by the parties highlights the ambiguity thereof and why extrinsic information could be relied on to assist with the proper construction of the DG Act.
Although the parliamentary debates do not offer any definition of the term 'person aggrieved', the passages in the debate on the second reading of the Dangerous Goods Safety Bill 2002 (Bill) do provide useful insight into Parliament's intention to enact a framework Act that provides the basis for selfregulation in this sector.
In debates in the Legislative Assembly on the second reading of the speech, the Minister for State Development, CM Brown, said the following about the selfregulatory approach adopted by the Bill:
The Bill departs from the outdated prescriptive approach to legislation and introduces a modern performancebased, risk management regime that shifts the responsibility for the safety of dangerous goods from the Government to industry, where it belongs. The new approach facilitates the formal adoption of modern safety standards as nonmandatory codes of practice. These codes of practice will assist industry in meeting its duty of care in a more efficient and costeffective manner, resulting in higher levels of public, workplace and environmental safety. …
Although the Bill provides the operational flexibility that industry requires, it also contains significant disincentives for those operators who do not meet their safety responsibilities. …
Regulationmaking powers also provide for the imposition of financial assurances to ensure compliance with obligations under the legislation, such as the mitigation of dangerous situations or the remediation of damage caused by an accident. … (Hansard, Western Australia, Parliamentary Debates, Legislative Assembly, 4 December 2002 pages 3915b3916a (CM Brown, Minister for State Development)).
The meaning of 'person aggrieved' must therefore be construed from the debates that gave rise to the DG Act, the purposive approach to statutory construction, and the structure and the framework of the DG Act.
Meaning to be determined in context of the DG Act
The meaning of the term 'person aggrieved' must be gleaned from the aims and objectives of the DG Act, the Regulations and the Dangerous Goods Sites: Emergency Planning Code (Second edition) (Code). (Refer to s 18, s 19 and s 20 of the DG Act).
This approach is consistent with the guidance provided by the High Court in the matter of AB and State of Western Australia and Anor [2011] HCA 42 at [10], namely, that a legislative provision in the current proceedings the meaning of 'person aggrieved' must be determined by considering the context of the legislation and its purpose. The High Court observed that the 'modern approach to statutory interpretation uses "context" in its widest sense, to include the existing state of the law and the mischief to which the legislation is addressed'.
The DG Act, in seeking to protect the interests of persons, property and the environment, does not elevate all of those interests to that of a 'person aggrieved'. The storage of dangerous goods may have potential consequences if an incident occurs to a very wide range of persons, property and the environment. All of those that can potentially be affected are not, at law, 'persons aggrieved'.
If the Tribunal were to accept the reasoning of Mr Bennett, uncertainty would prevail over the entire regulatory scheme created by the DG Act, since any person who may be identified at any time as potentially in the way of harm if an incident occurs at a dangerous goods site may qualify as a 'person aggrieved', and may seek a review of a licence that had been granted even if years had passed since the granting of the licence. If such an interpretation of s 67(2) of the DG Act were adopted, the term 'person aggrieved' could potentially involve a massive and ever expanding group of unidentified persons who may feel disgruntled, unhappy, affected or dissatisfied with the granting of a licence years after it had been issued.
No obligation to notify
The DG Act does not place any obligation on the Chief Officer or the person applying for a licence to inform or notify a neighbour, such as Process Minerals, of the application for the licence to store dangerous goods, or the grant of the licence and conditions imposed on the licence.
The requirement that a risk assessment had to be undertaken by Coleman does not equate to those persons, property and the environmental interests that were identified in the assessment or the emergency plan to be notified of the application for the licences or the grant of the licences.
The State Administrative Tribunal Act 2004 (WA) (SAT Act) requires that the decisionmaker give 'any person who has a right under an enabling Act' notice of the decision and the right for the decision to be reviewed (s 20(1) of the SAT Act). The right to be informed of a decision pursuant to the SAT Act is, however, dependent upon the provisions of the enabling DG Act.
Since, pursuant to the DG Act, Process Minerals is not regarded as a 'person aggrieved', Process Minerals was therefore not entitled to be given notice of the decision or of a right to review the decision as a 'person aggrieved'.
No obligation to consult
The DG Act does not, by direct reference or indirect inference, place an obligation on the Chief Officer to consult with Process Minerals, or with any other person than Coleman, about information relating to the dangerous goods site or the dangerous goods (reg 30(1)).
The requirement of reg 26 that the applicant for a licence must demonstrate that a dangerous goods site can be operated with 'minimal risk' to people, property and the environment emphasises the selfregulatory scheme of the DG Act, and does not give each of those categories the status of 'person aggrieved' or a person that has a right to be consulted.
The provisions of the DG Act are therefore quite distinct from, for example, s 242 of the Planning and Development Act 2005 (WA) (PD Act), which provides that the Tribunal may receive or hear submissions from a person who is not a party to the proceeding if such a person has a 'sufficient interest' in the matter (note that the right to be heard under the PD Act does not necessarily confer a right to bring an application for review as a 'person aggrieved'). No similar right to be heard exists under the DG Act, and the reference by Mr Bennett to the PD Act as a potential basis to support the contentions of Process Minerals does not assist to resolve this dispute.
The statutory framework under the DG Act and the outcome that is sought by Process Minerals must therefore be distinguished from the decision of the Tribunal in the matter of Curlewis and City of Albany [2011] WASAT 85 (Curlewis). In that matter, persons who were not a party to the proceeding were allowed to be treated as a 'person aggrieved' under cl 6.7 of the City of Albany Town Planning Scheme No 3. In those proceedings, cl 6.7 explicitly confers a right to seek review in accordance with Pt 14 of the PD Act. In Curlewis at [13] [16], it was explained that, pursuant to s 263(3) of the PD Act, the persons who sought to have the decision reviewed could be regarded as a 'person aggrieved' for purposes of that statutory arrangement. The same conclusion cannot be said of these proceedings, where a completely different statutory framework exists.
This reasoning of the Tribunal is consistent with the observation of the Tribunal in the matter of Canal Rocks Pty Ltd and Western Australian Planning Commission [2010] WASAT 176, namely:
(a)that under the specific arrangements in the PD Act the right to make a submission does not confer the right to bring an application as a person aggrieved; and
(b)that third party planning appeals do not exist in Western Australia, even if a person may make submissions in regard to a matter.
In short, the DG Act does not give Process Minerals a right to be consulted or to be notified about the application for the licences, the issuing of the licences or conditions attached to the licences.
'Potentially at risk' does not give status as 'person aggrieved'
The Regulations require from the operator of a dangerous goods site to do a risk assessment in which, inter alia, the 'nature of the harm to people, property and the environment that would result from an occurrence' of an incident is identified and to undertake 'risk control measures' (reg 4).
The requirement that rests on the person who applies for a licence to do a risk assessment and undertake related safety measures does not seek to create an obligation on that person or the Chief Officer to notify or consult with persons who may be affected by the storage facility or risks that may arise as a result of the facility.
The possibility that an event may arise from the storage of dangerous goods also does not enable persons who may be affected, if such an event arises, to be regarded as 'a person aggrieved' under the DG Act. If the reasoning of Mr Bennett was taken to its logical consequence, the list of potential 'person(s) aggrieved' would be ever expanding. The uncertainty that would flow from such an approach is inconsistent with the intent, objectives and proper administration and construction of the DG Act.
The certainty that is sought to be given by the statutory requirement that an application for review of a decision under the DG Act should be lodged within 28 days (r 9 of the State Administrative Tribunal Rules 2004 (WA)), would be completely undermined if the construction, as proposed by Mr Bennett, is adopted. These proceedings illustrate the uncertainty that Mr Bennett's approach may bring to the regulatory scheme, to investors and to the general public. The licences the subject of these proceedings were issued in December 2010, while the application for review was lodged in March 2012. If Mr Bennett's approach was legitimate, there may be any number of potentially 'persons aggrieved' in the area that surrounds the Coleman site that may, at any time now or in the future, apply for an extension of time to seek a review of the licences. Such a vague and uncertain outcome is inconsistent with the scheme of the DG Act and would destroy public confidence in the DG Act.
In essence, precautionary steps towards members of the public, property and the environment, as are required by the DG Act, do not elevate those members of the public who may be potentially affected to the status of a 'person aggrieved' under the DG Act. The mere fact that a specific person or property is not mentioned explicitly in the risk assessment also does not give rise to such a person becoming a 'person aggrieved'. There may, however, as discussed below, be other consequences to the operator if incorrect or faulty information is given. Refer, for example to reg 44, which places an obligation on Coleman to provide to the Chief Officer accurate information, as well as accurate updates should information that had been provided change. A serious fine may result if reg 44 is not complied with (reg 44(2)).
The importance to distinguish between persons with a grievance and those with a statutory right to seek review of a decision as a 'person aggrieved' is highlighted by Chaney J in the matter of Traditional Owners Nyiyaparli People and Minister For Health Indigenous Affairs [2009] WASAT 71 at [21]. His Honour said the following about the scheme of the Aboriginal Heritage Act 1972 (WA), the status of persons with a grievance, and the responsibility that rests on the Minister for Indigenous Affairs to ultimately protect sites:
The scheme of the Act is to vest in the Minister the ultimate control of activities affecting such sites or objects. The interest which the Minister is required to preserve is the general interest of the community. The competing interest is that of the proponent of the particular activities which require consent.
Even if there were persons who felt genuinely aggrieved at what they perceived as inadequate protection of Aboriginal sites, the statutory responsibility for the protection of sites vests in the Minster for Indigenous Affairs, and no member of the public, including those who have a direct interest in the protection of their sites and who may feel genuinely aggrieved by a decision, have a right to seek review of a decision. Only the person who sought approval for a certain activity that may impact on an Aboriginal site may initiate a review of the decision.
The conclusion is consistent with the decision in the matter of Genevieve Diggins and Ors and Shire of Busselton and Anor [1999] WATPAT 1, in which the Tribunal emphasised that 'person aggrieved' in that particular scheme is a person who, 'because of the legislative scheme', has a special interest in the proceeding. The answer to the question who is a 'person aggrieved' is therefore not a 'rule of thumb, capable of mechanical application', but on the correct and proper construction of the relevant Act pursuant to which the decision was made: see Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at [42].
In these proceedings, the statutory scheme does not provide any recognition to Process Minerals to be treated differently from other members of the public for the mere fact that it is the immediate neighbour of Coleman.
Operation of storage site with minimal risk to people, property and the environment
The information required, pursuant to the Regulations (reg 26), for the issuing of a licence requires that 'a person' who applies for a licence 'must' provide the Chief Officer with detailed information in regard to the location plan, and an expert report 'that demonstrates the dangerous goods site can be operated in accordance with Division 2 (other than Subdivision 1 and regulation 75) and in any event with minimal risk to people, property and the environment …' (reg 26(2)).
A failure to provide all relevant information to the Chief Officer, or the provision of false of misleading information may have serious consequences; for example, the licence may be suspended or cancelled (reg 39).
These provisions emphasise the intent of the statutory scheme as explained in the second reading speeches, namely, for a proponent to identify risks and enact precautionary measures commensurate with the provisions of the DG Act, Regulations and Code. Failure to comply with the statutory requirements could have serious consequences.
None of these provisions, however, suggest that those persons who may be identified or not identified in a risk assessment, or those being at potential risk should an incident arise at a dangerous goods storage site, or those that may be affected by an emergency plan, must be notified, must be consulted, or can apply for a review of a decision as a person aggrieved under the DG Act.
If wrong or misleading information is provided to the decisionmaker by a proponent, or if information that was given at the original assessment changes over time, there is an obligation on the licensee to inform the decisionmaker of the correct information (reg 44) and to adjust the risk assessment and risk management plan accordingly. This again highlights the selfregulatory philosophy of the DG Act.
The structure of the DG Act therefore requires from the proponent of a project, or the licensee, to undertake regulate assessments of risk, to develop risk management plans in light of those assessments, and to submit all relevant information to the regulating authority. There is no obligation on the proponent or the Chief Officer to invite public submissions for consideration.
The DG Act, by requiring detailed information pursuant to the Regulations, does not thereby create an avenue for Process Minerals to seek a review of the licences or the conditions associated with the licences.
Process Minerals is no different than members of the public
The risk assessment of storage of dangerous goods requires, pursuant to reg 48, from the operator ongoing risk assessment with revisions, if necessary. Failure to comply with reg 48(3) can attract a fine.
The failure by an operator to provide accurate information to the Chief Officer in regard to, for example, the activities that take place on a neighbouring property, does not give rise to such a neighbour becoming a 'person aggrieved' under the DG Act, but rather, that there is a failure to comply with the statutory requirement.
The same argument applies to the requirement pursuant to reg 75 for the operator to ensure that a written emergency plan is prepared for a site. Although the operator is required to provide to the regulating authority information about risks to people, property and the environment, this obligation cannot be construed so as to give each of those persons who may be affected, should an incident occur, a right to seek a review of the grant of the licence.
The requirements of reg 75(4) that the operator must provide to the 'occupier of an adjacent place' a copy of the emergency plan or a part thereof, also does not clothe such a neighbour with a legal entitlement to be regarded as a 'person aggrieved'. Failure by the operator to comply with reg 75(4) can attract a fine again emphasising the selfregulatory nature of the statutory scheme.
The Code contains further information about the emergency plan required pursuant to reg 75. Clause 4.5 of the Code requires that, if a person, property or the environment adjacent to a dangerous goods site may be exposed to risk from a dangerous situation, then the plan should identify dangerous situations, identify neighbours and establish procedures to be followed.
The identification of a person or property, or the failure to identify a person or a property, does not give rise to such a person being able to be treated as a 'person aggrieved'. If an operator provides incorrect or false information, it may lead to a fine or other penalty, but such a breach does not give rise to a person who was not identified to seek a review of the decision.
Although the Tribunal would not describe the motivation of Process Minerals in bringing this application as being similar to those of a mere 'intermeddler or busybody' (North Coast Environmental Council Inc v Minister of Resources (1994) 127 ALR 617), the interests of Process Minerals do not exceed the interests of other neighbours or other members of the public in the vicinity of the Coleman operations. The Tribunal accepts that, in a general sense of speaking, Process Minerals may feel aggrieved, but that does not qualify it to be regarded as a 'person aggrieved' under the DG Act.
The concerns Process Minerals raises about the adequacy of the risk assessment and emergency planning submitted by Coleman, and the absence of the details of Process Minerals from the expert report submitted in support of the application for the licences, may be issues for the Chief Officer to pursue in regard to its regulating responsibilities, but it does not clothe Process Minerals with the statutory right of a 'person aggrieved'.
In this sense, Process Minerals is in a similar position to what was described by Gibbs J in Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493, at [526], as a 'private citizen who has no special interest is incapable of bringing proceedings for that purpose, unless, of course, he is permitted by statute to do so' (emphasis added).
Conclusion
The above reasoning affirms the purposive construction of the DG Act and the selfregulating scheme of the DG Act, whereby a 'person aggrieved' is not the same as any person who may be affected or impacted by the issuing of a dangerous goods storage licence.
If the reasoning of Process Minerals were to be followed, it would mean that any person who may be at potential risk to suffer harm, damage or injury, should an incident occur at a storage site, could be regarded, even in retrospect, as a 'person aggrieved'. The vagueness and uncertainty that would arise from such an interpretation would not only undermine the certainty that is required for a credible regulatory scheme where a proponent can rely on an approval for purposes of investment decisions, but it would also open the door to an undefined and uncertain category of persons who may, even years after the grant of the licences, lodge an application for review.
Process Minerals therefore is not a 'person aggrieved' pursuant to s 67(2) of the DG Act.
In light of this finding, there is no need to consider the remaining questions referred to in para 13.
The application for an extension of time must therefore be dismissed.
Orders
1.The applicant is not a 'person aggrieved' pursuant to s 67(2) of the Dangerous Goods Safety Act 2004 (WA).
2.The application for an extension of time is dismissed.
I certify that this and the preceding [74] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
DR B DE VILLIERS, MEMBER
1
10
10