Process Minerals International Pty Ltd v Department of Mines and Petroleum - [2012] WASC 458

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: PROCESS MINERALS INTERNATIONAL PTY LTD -v- DEPARTMENT OF MINES AND PETROLEUM [2012] WASC 458

CORAM: HALL J

HEARD: 28 AUGUST 2012

DELIVERED : 30 NOVEMBER 2012

FILE NO/S: GDA 9 of 2012

BETWEEN: PROCESS MINERALS INTERNATIONAL PTY LTD
Appellant
AND
DEPARTMENT OF MINES AND PETROLEUM
First Respondent
COLEMAN BROS PTY LTD
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram  :DR B DE VILLIERS (MEMBER)
Citation  :PROCESS MINERALS INTERNATIONAL PTY LTD and DEPARTMENT OF MINES AND PETROLEUM [2012] WASAT 115
File No  :CC 484 of 2012, CC 486 of 2012

Catchwords:

Appeal from State Administrative Tribunal - Review of grant of licence to store dangerous goods - Dangerous Goods Safety Act 2004 (WA) - Whether appellant an 'aggrieved person' - Whether owner of adjacent property entitled to seek a review - Whether question of law - Whether leave to appeal should be granted

Legislation:

Dangerous Goods Safety Act 2004 (WA), s 3, s 4, s 8, s 13, s 67
Dangerous Goods Safety (Storage and Handling of Non-explosives) Regulations 2007 (WA), reg 4, reg 8, reg 25, reg 26, reg 30, reg 31, reg 34, reg 41, reg 51, reg 53, reg 54, reg 55, reg 56, reg 64, reg 65, reg 66, reg 75, reg 140

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant:     Mr M L Bennett
First Respondent           :     No appearance
Second Respondent       :     Mr P McQueen

Solicitors:

Appellant:     Bennett & Co
First Respondent           :     No appearance
Second Respondent       :     Lavan Legal

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

Alphapharm Pty Ltd v Smith Kline Beecham (Australia) Pty Ltd [1994] FCA 996; (1994) 49 FCR 250
Australian Conservation Foundation v Commonwealth [1980] HCA 53; (1980) 146 CLR 493
Australian Institute of Marine & Power Engineers v The Secretary of the Department of Transport [1986] FCA 443; (1986) 13 FCR 124
Cameron v Human Rights & Equal Opportunity Commission [1993] FCA 593; (1993) 46 FCR 509
Coles Myer Ltd v O'Brien (1992) 28 NSWLR 525
Ex parte Sidebotham; Re Sidebotham [1880] 14 Ch Div 458
IW v The City of Perth [1997] HCA 30; (1997) 191 CLR 1
Koowarta v Bjelke‑Petersen [1982] HCA 27; (1982) 153 CLR 168
Lourey v Legal Profession Complaints Committee [2012] WASCA 112
North Coast Environmental Council Inc v Minister for Resources [1994] FCA 1390; (1994) 55 FCR 492
Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27
Osland v Secretary to the Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Process Minerals International and Department of Mines and Petroleum [2012] WASAT 115
Process Minerals International Pty Ltd v Coleman Bros Pty Ltd [2012] WASC 178
Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331

HALL J:

Introduction

This is an application for leave to appeal against a decision of the State Administrative Tribunal (the Tribunal) made on 18 May 2012: Process Minerals International and Department of Mines and Petroleum [2012] WASAT 115. The decision made by the Tribunal was that the appellant is not a 'person aggrieved' pursuant to s 67(2) of the Dangerous Goods Safety Act 2004 (WA) (DGSA). In consequence the appellant's application for an extension of time in which to seek a review of a decision to issue a licence to the second respondent under the DGSA was dismissed.
An appeal of this type may only be brought with leave and on a question of law: s 105 of the State Administrative Tribunal Act 2004 (WA) (the SAT Act). In Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [16] ‑ [18], Buss JA (with whom Wheeler & Pullin JJA agreed) said that leave should be granted if in all the circumstances a grant of leave is in the interests of justice.
In Paridis Buss JA adopted guidelines referred to in Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331, they being that the applicant must identify a question of law which is relevant to the granting of the relief sought and the applicant must show that there is a real and significant argument to be put on that question. The applicant may also have to show that to allow the error to go uncorrected would impose substantial injustice.
In this case the appellant submits that the Tribunal made an error of law in regard to its interpretation of s 67 of the DGSA. That section provides that certain decisions made by the Chief Dangerous Goods Officer (the Chief Officer) are reviewable decisions. It is not disputed that a decision to grant a licence to store dangerous goods on particular land is such a decision. Section 67(2) provides that a person aggrieved by a reviewable decision may apply to the Tribunal for a review of the decision. The question of whether the appellant was an aggrieved person for the purposes of s 67(2) was critical to whether it had a right to seek review of the decision of the Chief Officer.
The appellant owns a property in Port Hedland (or, properly speaking, a wholly owned subsidiary company does so) which is approximately 230 metres from the land used by the second respondent to store dangerous goods, namely ammonium nitrate. The appellant argued that given its proximity and the fact that its property included a caretaker's residence it had sufficient interest to qualify as a person aggrieved. It had not sought a review until some 15 months after the licence was granted and, accordingly, an extension of time was required: r 9 and r 10 State Administrative Tribunal Rules 2004 (WA).
It was unnecessary for the Tribunal to determine the merits of the extension of time application or of the substantive review if the appellant had no right to seek a review. Accordingly, this issue was determined as a preliminary question. Because it was determined against the appellant the decision of the Tribunal on this issue resulted in the application for review being finally determined by being dismissed.
The principle issue on this appeal is whether the interpretation by the Tribunal of the phrase 'person aggrieved' as used in s 67 of the DGSA was correct. Issues of interpretation archetypally involve a question of law. It remains necessary on the appeal, however, for the appellant to identify an error of law and not to merely advance an alternative interpretation.
For the reasons that follow I am not satisfied that there is sufficient doubt as to the correctness of the Tribunal's interpretation as to justify the grant of leave sought. Indeed, I am of the view that the Tribunal's interpretation was plainly correct. As a result, leave to appeal must be refused and this appeal dismissed.

Grounds of appeal

On the hearing of the appeal the appellant sought leave to amend its grounds. The amendments were intended to focus attention more closely on the issue of the interpretation of s 67 of the DGSA. Whilst the amendment was opposed by the second respondent, I was satisfied that any prejudice could be alleviated by giving the second respondent leave to file further written submissions if it is so desired.
The grounds as amended are as follows:
1.The Learned Member erred in law in holding that the phrase 'a person aggrieved' within the meaning of that expression in Section 67(2) of the Dangerous Goods Safety Act, 2004 (WA) did not involve a consideration of whether a person was a neighbour owning property and conducting business including as part of its business the accommodation of caretakers within such close proximity to the proposed operations of the applicant for a dangerous goods licence as to be potentially endangered by the proposed operations.
2.As a matter of law, the Learned Member should have held respondent as be potentially endangered by the proposed operations of the second respondent was a person aggrieved within the meaning of Section 67(2) of the Dangerous Goods Safety Act, 2004 (WA).
3.By failing to have regard and to take into account as a consideration of determining whether or not the applicant was a person aggrieved the fact that the applicant was a neighbour owning property and conducting business and in particular as part of its business the accommodation of caretakers within such close proximity to the proposed operations of the Second Respondent as to be potentially endangered by the proposed operations of the Second Respondent the Tribunal erred in law.
Ground 1 is the critical ground. If that ground is not successful grounds 2 and 3 fall away. This is because if the Tribunal's interpretation of s 67 is correct then considerations of the type referred to in grounds 2 and 3 were irrelevant and a failure to have regard to them could not constitute an error.
The first respondent, the Department of Mines and Petroleum, was represented in the proceedings in the Tribunal but did not seek to be heard on the appeal. It filed a notice that it intended to abide by any decision of the court on this appeal.

Background

The background facts are not in dispute. They are conveniently summarised in the reasons for decision of Tribunal as follows:
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 [7] ‑ [12].
Though not referred to in the Tribunal's decision, it was apparent from submissions on the appeal that the context in which the appellant's concern arose was when it formed an intention to develop its land by building accommodation facilities for transient workers. It was when planning approval was sought that the possible effect of an adjacent dangerous goods site was appreciated. This was also referred to in the related proceedings in this court in Process Minerals International Pty Ltd v Coleman Bros Pty Ltd [2012] WASC 178.

Reasons of the Tribunal

The Tribunal noted that the phrase 'person aggrieved' was not defined in the DGSA or in any related regulations. In these circumstances the Tribunal said that the meaning should be discerned by considering the DGSA in its totality and also the stated objectives and evident purposes of the DGSA.
The Tribunal also considered that it was appropriate to have regard to the second reading speech of the Dangerous Goods Safety Bill 2002 because such extrinsic information could assist to the extent that the term was ambiguous: s 19(1)(b)(i) of the Interpretation Act 1984 (WA). In particular the Tribunal stated [29]:
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 [29].
The Tribunal also took into account the broader context of the DGSA and associated regulations. The Tribunal expressed the view that the DGSA 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 Tribunal considered that the interpretation advanced on behalf of the appellant would permit reviews of decisions to be sought by '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' [34]. This conclusion was said to flow from the proposition that a person aggrieved included any person who may be identified at any time as potentially in the way of harm if an incident occurred at a dangerous goods site.
The Tribunal considered that it was a relevant factor that the DGSA does not impose any obligation on the Chief Officer or the person applying for a licence to inform or notify neighbours that an application for a licence to store dangerous goods has been made. Nor is there any obligation to notify neighbours that a licence has been granted or of any conditions imposed on such a licence. The fact that a risk assessment was required was not considered to equate to any obligation to notify or inform persons whose personal or property interests may potentially be affected by an adverse incident.
The Tribunal also noted that the DGSA does not impose any obligation on the Chief Officer to consult with any person other than the applicant for a licence about information relating to the dangerous goods site or the goods to be stored at the site. The Tribunal considered that the requirement imposed by regulations that the applicant for a licence demonstrate that the site can be operated with minimal risk emphasised the self‑regulatory scheme of the DGSA. This was contrasted with other statutory schemes that provide for the decision‑maker to receive submissions from persons who are not an applicant for a licence or approval where, for example, they have a sufficient interest in the matter. See, for example, s 242 of the Planning and Development Act 2005 (WA).
The Tribunal noted that the concerns of the appellant were as to the adequacy of the risk assessment and emergency planning submitted to the Chief Officer in applying for the storage licence. However the Tribunal noted that there were serious consequences for any failure on the part of a licence applicant to provide relevant information or in providing false or misleading information. Such consequences could include prosecution or suspension or cancellation of the licence.
The Tribunal concluded by saying:
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 [70] ‑ [72].

Approach to interpretation of the phrase 'person aggrieved'

The words 'person aggrieved' appear in many statutes. They are usually used, as here, to identify those who have a right to seek a review of a decision. They are words of limitation in the sense that they require that a person have a particular characteristic that distinguishes them, namely that they are aggrieved. However that characteristic has been consistently interpreted as not including every person who is discontented or annoyed by a decision.
In earlier decisions the term 'person aggrieved' was taken as only referring to a person who had suffered a legal grievance, that is a person against whom a decision had been pronounced which had wrongfully deprived that person of something or wrongfully refused that person something or wrongfully affected the person's title to something: see Ex parte Sidebotham; Re Sidebotham [1880] 14 Ch Div 458, 465 (James LJ).
However, in later decisions a more expansive approach was taken in some cases. This was a reflection of the relaxing of restrictions relating to standing to sue. In particular, there was increased willingness to hold that public duties could be enforced at the suit of persons who had a special interest in the subject‑matter of the action though they had no private right to enforce: Australian Conservation Foundation v Commonwealth [1980] HCA 53; (1980) 146 CLR 493; Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27. It was recognised that the question of whether a person was aggrieved was analogous to the question of standing, though the former question could never be divorced from its particular legislative context: Cameron v Human Rights & Equal Opportunity Commission [1993] FCA 593; (1993) 46 FCR 509, 515 (Beaumont & Foster JJ).
In Koowarta v Bjelke‑Petersen [1982] HCA 27; (1982) 153 CLR 168, Gibbs CJ said:
The words 'person aggrieved' have appeared in many statutes, English and Australian, and their meaning has been discussed in many cases. In the end of course the meaning of the words must depend on the context of the particular statute. It has often been said that the words connote a person with a legal grievance: see Re Sidebotham (1880) 14 Ch D 458 at 465; Buxton v Minister of Housing and Local Government [1961] 1 QB 278 at 285. The cases under the Trade Marks Acts to which we were referred are consistent with that view; they suggest that a person is 'aggrieved' by an act which operates in restraint of what would otherwise have been his legal rights: Powell v Birmingham Vinegar Brewery Co [1894] AC 8 at 10, 12; Attorney-General of NSW v Brewery Employees Union of NSW (1908) 6 CLR 469 at 497, 519, 550; Continental Liqueurs Pty Ltd v G F Heublein and Bro Inc (1960) 103 CLR 422 at 427. However, in Attorney-General of the Gambia v N'Jie [1961] AC 617 at 634, Lord Denning, delivering the judgment of the Privy Council, said that the words are of wide import and should not be subjected to a restrictive interpretation. He added (at p 634): 'They do not include, of course, a mere busybody who is interfering in things which do not concern him: but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests' (184).

It has been said that there has been a progressive widening of the law of standing and of the concept of a person aggrieved over the last century: Coles Myer Ltd v O'Brien (1992) 28 NSWLR 525, 527 ‑ 530 (Kirby P); Australian Institute of Marine & Power Engineers v The Secretary of the Department of Transport [1986] FCA 443; (1986) 13 FCR 124, 130 ‑ 132; and North Coast Environmental Council Inc v Minister for Resources [1994] FCA 1390; (1994) 55 FCR 492, 502 (Sackville J). However, the meaning of the term 'person aggrieved' will always depend upon the particular statutory context: IW v The City of Perth [1997] HCA 30; (1997) 191 CLR 1, 24 (Dawson & Gaudron JJ), 45 ‑ 46 (Gummow J). For this reason decisions relating to the meaning of those words in other statutes may be of limited assistance.
In Alphapharm Pty Ltd v Smith Kline Beecham (Australia) Pty Ltd [1994] FCA 996; (1994) 49 FCR 250, 272 Gummow J said:
Like the expression 'a person aggrieved', the phrase 'a person whose interests are affected by the decision' and cognate terms, appear in a variety of statutes as the identification of the persons who are given standing to seek administrative or judicial review. The day is long gone when there was any general presumption that in such statutes the 'interests' concerned must be proprietary or even legal or equitable in nature, or that the affectation be of a nature as understood in private law. However, it is important not to draw from what was said in any particular decision by way of identification of that which did or did not amount to a sufficient affectation of an interest any general proposition which may be translated to the instant dispute. In each case, the content of the terms 'affect' and 'interest' are to be seen in the light of the scope and purpose of the particular statute in issue [22].
Whether a person has a right to be heard during the decision‑making process is a relevant factor in considering whether he or she has standing to seek review of the decision: Alphapharm (260) (Davies J [38]). The existence of such a right would support an interpretation that the person was recognised as having a relevant interest in the decision. It would also support a conclusion that such a person would be likely to be included in the class of persons given any right of review. Conversely, the absence of any right to be heard or consulted during the decision‑making process would support a conclusion that the person was not intended to have review rights.
In Alphapharm the appellant had obtained registration of a generic brand of a drug under the Therapeutic Goods Act 1989 (Cth). The respondent was a competitor that had been granted a patent in respect of the same drug. The respondent requested the relevant minister to reconsider the decision to register the appellant's generic brand drug. The minister declined to do so because the respondent was not a person whose interests were affected by the decision and accordingly it had no standing to request a reconsideration. That conclusion was ultimately upheld. It was noted that the purpose of the Act was to ensure the timely availability of the therapeutic goods after evaluation by an expert body. It was irrelevant that a competitor may have a commercial interest in delaying or hindering the introduction of a drug onto the market.
Davies J noted in Alphapharm that the Act in that case made no provision for the joinder of other persons in the decision‑making process. There were no provisions for the hearing of a competitor who may suffer financial loss if the drug was to be marketed. Applications for registration and for listing were not advertised. There was no provision for the hearing of witnesses or for the hearing of any interested parties. Rather, the procedure for investigation, testing and evaluation was undertaken by experts in the field. Burchett J said (at 266 [7]) that sometimes the possession of a right to be heard in an enquiry or other proceeding may, in itself, demonstrate a sufficient interest to maintain an action aimed at ensuring the legality of the conduct of the enquiry of proceeding. However, in Alphapharm the converse was the case, that is the respondent had no right under the statute to be heard on the original consideration of the matter.

Relevant statutory provisions

The meaning of the term 'person aggrieved' in s 67 of the DGSA must be determined having regard to the statutory context. For this reason it is necessary to consider the scheme of the Act and its purpose.
The long title of the DGSA is 'An Act relating to the safe storage, handling and transport of dangerous goods for the related purposes'. The objectives of safety and risk minimisation are achieved by imposing duties on those who are involved in storing, handling or transporting dangerous goods.
Section 8 of the DGSA provides that a person who is involved directly or indirectly in storing, handling or transporting dangerous goods must take all reasonably practical measures to minimise any risk from the goods to people, property and the environment. Failure to comply with this duty is an offence.
Section 13 provides that a person who has control or management of a dangerous goods site commits an offence if the site is not licensed under the regulations. The phrase 'dangerous goods site' is defined in s 3 to mean a place where dangerous goods were or are, or are intended to be, stored or handled or where the loading or unloading of dangerous goods in connection with transporting them was or is, or is intended to be, carried out. 'Dangerous goods' means a substance or article that is prescribed by the regulations to be dangerous goods or determined by the Chief Officer under the regulations to be dangerous goods.
The Dangerous Goods Safety (Storage and Handling of Non‑explosives) Regulations 2007 (WA) (the Regulations) are the relevant regulations in respect of this matter. Regulation 8 provides that a substance or article is dangerous goods if it is named in column two of the dangerous goods list. The dangerous goods list means the dangerous goods lists in the ADG Code ch 3.2 as read with other provisions in the ADG Code pt 3. The ADG Code is defined in reg 4 as meaning the Australian Code for the Transport of Dangerous Goods by Road and Rail (7th ed, 2007), published by the Commonwealth of Australia (also called the Australian Dangerous Goods Code). Ammonium nitrate in various forms appears in column two of the dangerous goods list at items 0082, 0222, 0331, 1942, 2067, 2071, 2426, 3375.
Regulation 25(1) provides that a dangerous goods site is required to be licensed if dangerous goods are stored or handled at the site in quantities that exceed the manifest quantities. Regulation 4 defines 'manifest quantity' as meaning a quantity of dangerous goods greater than the quantity specified in relation to those goods in sch 1. Schedule 1 sets out a table specifying different manifest quantities which vary depending upon the nature of the dangerous goods. It is not disputed that the manifest quantity of ammonium nitrate stored by the second respondent at the site is such as to require a licence. There are some exceptions to the requirement to hold a licence in reg 25(2), (3), (6) and (7), but they are not material in the present case.
Regulation 26 provides that a person may apply to the Chief Officer to grant a licence. The Chief Officer is defined in s 3 of the DGSA as meaning the person designated as the Chief Dangerous Goods Officer under s 25(2) of the DGSA. An application for a licence must be in an approved form and be accompanied by the information referred to in reg 26(2), which provides as follows:
The application must be in an approved form and be accompanied by -
(a)a location plan showing the position of the dangerous goods site relative to any roads, railways and buildings; and
(b)a draft of the manifest and site plan referred to in regulation 78; and
(c)a written report by either the applicant or an approved person 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 in relation to the dangerous goods at the site; and
(d)any other relevant document that is required by the approved form; and
(e)unless a fee will be payable under the Dangerous Goods Safety (Major Hazard Facilities) Regulations 2007 regulation 34 in respect of the site if the licence is granted -
(i)the annual fee payable for the first year of the licence applied for; and
(ii)if the report required by paragraph (c) is not by an approved person - the relevant fee specified in Schedule 5 clause 3.
The Chief Officer may make a written request to an applicant for further information relating to the dangerous goods site and any dangerous goods to be stored or handled at the site. A failure to comply with the request for further information within 21 days is taken to be a withdrawal of the application (r 30).
Regulation 32 provides that, unless reg 30(2) and reg 31 apply, the Chief Officer is to grant a licence application. Regulation 30(2) relates to the failure to provide further information on a written request from the Chief Officer. Regulation 31 relates to an application that is in respect of a major hazard facility as defined in the Dangerous Goods Safety (Major Hazard Facilities) Regulations 2007 (WA). It is not suggested that the facility in this case is a major hazard facility. Accordingly, if an applicant for a site licence provides the documents required by reg 26 and any further information required by the Chief Officer under reg 30 and the site is not a major hazard facility the Chief Officer is required to grant a licence.
Regulation 33 provides that the Chief Officer can impose conditions on a licence either at the time it was granted or while it is in effect. Those conditions can include any condition that is reasonably necessary to ensure, so far as is practicable, that any dangerous goods to which the licence relates will be secure, that any activity that is authorised by the licence is conducted safely and that risks in relation to people, property or the environment are minimised. A licence has effect for five years unless cancelled (reg 34).
Subdivision 3 of the Regulations provides for a procedure for suspending or cancelling a licence. Other than in urgent circumstances, as provided for in reg 41, the procedure requires the Chief Officer to issue a written notice to the licence holder setting out the proposed action and the grounds for it and giving the licence holder an opportunity to make written submissions (reg 40).
Regulation 39 provides that grounds to suspend a licence exist if the licence holder is charged with a dangerous goods offence or there are reasonable grounds to suspect that the licence holder has not complied with the licence or has not complied with the Act or the regulations made under it, has provided false or misleading information in purported compliance with the Act or Regulations or if there are reasonable grounds to suspect that a place to which the licence relates does not comply with the Regulations or conditions of the licence.
One of the documents required to accompany an application for a licence is a risk assessment under div 2 of the Regulations. Regulation 48 provides that an operator must ensure that a risk assessment is made of the dangerous goods stored or handled at the site and that a record is kept of the assessment. The term 'risk assessment' is defined in reg 4 as follows:
risk assessment for a dangerous goods site is a document that, in relation to the site as the site exists, or will exist, at the relevant time -
(a)identifies all hazards relating to dangerous goods at the site; and
(b)for each hazard, assesses -
(i)the probability of the hazard causing a dangerous goods incident; and
(ii)the nature of the harm to people, property and the environment that would result from the occurrence of that incident;
and
(c)for each hazard, identifies the risk control measures; and
(d)in relation to each judgment required above, explains the methods used to make the judgment and the reasons for the judgment; and
(e)has been prepared in a form acceptable to the Chief Officer.
The term 'risk control measures' is also defined in reg 4 as follows:
risk control measures, in relation to a hazard relating to dangerous goods at a dangerous goods site, means measures that will eliminate or, if it is not reasonably practicable to eliminate, that will reduce so far as reasonably practicable -
(a)the probability of the hazard causing a dangerous goods incident; and
(b)the harm to people, property and the environment that would result from the occurrence of that incident.
Division 2, subdivision 2 of the Regulations specifies a number of duties that an operator of a dangerous goods site must comply with. They include taking steps to contain any spill or leakage (reg 51), segregating dangerous goods from other incompatible goods (reg 53), ensuring that stabilisers and temperature controls are used where necessary (reg 53), ensuring that dangerous goods are protected from impact damage (reg 54), ensuring the safe transfer of dangerous goods (reg 55), protecting dangerous goods from ignition sources (reg 56), ensuring that appropriate storage facilities and handling systems are in place (reg 58), and ensuring appropriate lighting, access and security (reg 64 , reg 65, reg 66). Subdivision 3 imposes obligations regarding warning signs. Subdivision 4 includes obligations regarding emergency management and planning. Failure to comply with those duties is an offence, which in some cases can be dealt with by way of an infringement notice: reg 140 and s 56 DGSA.
Regulation 75 requires that an operator must ensure that a written emergency plan for dealing with any dangerous situation associated with the storage and handling of dangerous goods at the site is prepared in accordance with the Dangerous Goods Site - Emergency Planning Code. Regulation 75 provides as follows:
75.Emergency plan, requirements for
(1)In this regulation
code means the document titled Dangerous Goods Sites - Emergency Planning code ISBN 978 1 921163 09 7 published by the Department.
(2)This regulation applies in relation to the operator of a dangerous goods site if dangerous goods are stored or handled at the site in quantities that exceed the relevant quantities specified in the column headed 'Manifest Quantity' in Schedule 1.
(3)The operator must ensure that a written emergency plan for dealing with any dangerous situation associated with the storage and handling of dangerous goods at that site is prepared in accordance with the code.
Penalty: a level 2 fine.
(4)The operator must ensure that any part of the emergency plan specified in the code is provided to the occupier of an adjacent place, if the person or property at the adjacent place might be exposed to risk as a result of a dangerous situation.
Penalty: a level 2 fine.
(5)The operator must review and, if necessary prepare a revised version of, the emergency plan -
(a)if there is a change in circumstances at the site resulting in a significant change in the risk to people, property and the environment from the dangerous goods at the site; and
(b)in any event, at intervals of not more than 3 years from the day on which the plan was developed or last revised.
Penalty: a level 2 fine.
(6)The operator must -
(a)have a copy of the emergency plan available at the dangerous good site; and
(b)make that copy available to a DGO, the Chief Officer or FESA on request.
Penalty: a level 3 fine.
(7)The DGO, the Chief Officer or FESA may, by notice in writing, instruct the operator to make any amendments to the emergency plan that are specified in the notice and the operator must comply with those instructions.
Penalty: a level 3 fine.
(8)If dangerous goods are stored or handled at a dangerous goods site in quantities that are 10 times greater than the manifest quantities, the operator of the site must send to the Chief Officer, in an electronic format approved by the Chief Officer, a copy of any part of the plan specified in the code.
Penalty: a level 2 fine.
(9)Subregulation (8) does not apply to the operator of a dangerous goods site that is -
(a)a petrol station; or
(b)a mine as defined in the Mines Safety and Inspection Act 1994 section 4(1),
unless the Chief Officer, in writing, notifies the operator that it does.
In assessing the nature and degree of risk which particular dangerous goods may pose it is relevant to consider codes of practice that have been approved by the minister. Codes of practice operate as a practical guide to persons engaged in storing dangerous goods, but non‑compliance with a code does not result in civil or criminal liability: s 20 DGSA. On the other hand, compliance with a code is a defence to an offence under the DGSA: reg 62.
Section 20 of the DGSA provides a mechanism for the approval of codes of practice and for such codes to be considered as regulations:
20.Codes of practice, approval of
(1)For the purpose of providing practical guidance to persons engaged, directly or indirectly, in storing, handling or transporting dangerous goods, the Minister may approve any code of practice as in force from time to time or as in force at a particular time.
(2)A code of practice -
(a)may consist of any code, standard, rule, specification or provision relating to the storage, handling or transport of dangerous goods published by a body recognised as having an expertise on the subject; and
(b)may incorporate by reference any other such document as in force from time to time or as in force at a particular time.
(3)The Minister may approve any revision of the whole or any part of a code of practice.
(4)The Minister may cancel the approval of a code of practice.
(5)The Chief Officer must -
(a)publish a notice in the Gazette giving details of any approval or cancellation made under this section;
(b)ensure that a copy of every approved code of practice, including any revision of the code and any document incorporated in it by reference, is available, without charge, for public inspection; and
(c)publish a notice in the Gazette giving details of where such documents may be inspected or obtained.
(6)An approval or cancellation made under this section comes into force on the day on which notice of it is published in the Gazette or on a later date specified in the notice.
(7)A code of practice approved under this section is a regulation for the purpose of section 42 of the Interpretation Act 1984.
(8)A person is not liable in any civil or criminal proceeding only because the person has not complied with a provision of an approved code of practice.
A notice was published in the Government Gazette of 13 June 2008 which stated that a number of codes of practice had been approved by the minister. These included the 'Storage and handling of Dangerous Goods code of practice' and 'the Safe storage of solid ammonium nitrate code of practice' (the Ammonium Nitrate Code). The approval of those Codes was also confirmed by a notice published in the Government Gazette of 6 July 2010 and 12 June 2012.
The Ammonium Nitrate Code describes the characteristics of ammonium nitrate as being a white odourless salt that is highly soluble and can facilitate the initiation of fire and can intensify fires in combustible materials. It may detonate, particularly when heat or fire is present with contamination, confinement, or both. The hazards are described as fire due to its oxidising nature, decomposition with the formation of toxic gases and explosion. In the event of fire toxic nitrogen dioxide gas can be produced and evacuation is recommended. Where the amount stored is greater than 1,000 kg the recommended minimum evacuation distance is 1,500 m for non‑emergency personnel and 1,000 m for emergency personnel.

Part 4 of the Ammonium Nitrate Code sets out minimum separation distances with respect to the proximity of a storage site from places such as residences, places of public assembly, academic establishments, healthcare facilities and pipelines. The separation distance varies depending on the amount of ammonium nitrate stored. Where the amount stored is more than 10,000 kg the minimum separation distance is 300 m. This increases to 1,110 m for amounts of 500,000 kg or more. A note to the table setting out the separation distances indicates that calculations have been based upon ammonium nitrate being taken to have a TNT equivalence of 25%.
A second edition of the Ammonium Nitrate Code was published in March 2012. The separation distances are materially the same.
The Dangerous Goods Site - Emergency Planning Code as adopted by reg 75 lists the essential elements of an emergency plan. The purpose of an emergency plan is to address specific emergency situations identified in the risk assessment. One of the elements of an emergency plan is notification of neighbours. Clause 4.5 of the Dangerous Goods Site - Emergency Planning Code is headed 'Notification of neighbours' and provides as follows:
If a person, property or the environment adjacent to the dangerous goods site might be exposed to risk from a dangerous situation the plan should:
•identify dangerous situations that would affect people or property on adjacent sites (neighbours) and assess the risks;
•identify the neighbours who are likely to be affected - consider people present, during or outside of work hours and list their contact details;
•establish procedures and means of contacting;
•provide precise advice about the actions that will be undertaken to control specific dangerous goods situations; and
•provide relevant information about the sites off‑site emergency planning.
The following information about the site must be provided to neighbours before dangerous goods may be stored or handled:
•name and address of the site;
•24 hour contact details;
•activities involving dangerous goods;
•what could happen (ie hazards related to a dangerous goods emergency situation that might present a risk, and the potential affects on people, property and the environment);
•how they will know that something has happened (ie how the dangerous goods site will communicate with neighbours regarding an emergency, including how much notice can be expected before being affected by a dangerous goods situation and advising when the situation is safe); and
•what will be done to control a dangerous goods situation: - what the site operator will do to control and minimise the risk of a dangerous situation, and - what the neighbour should do in specific emergencies (eg closing windows and doors, preparing for evacuation).
The Chief Officer and Dangerous Goods Officers appointed under s 27 of the DGSA have a range of investigation and enforcement powers, which are set out in pt 6 of the DGSA. These include powers of entry (s 35), powers to seize records or direct a person to provide records (s 38), to obtain answers to questions under compulsion (s 39), to restrict access to a site (s 40) and to obtain warrants (s 41 ‑ s 45). The Chief Officer may also direct persons involved in the control or management of dangerous goods to conduct an audit regarding risks, safety, the adequacy and effectiveness of any safety management document or any dangerous goods incident or situation occurring on a site: s 46. A Dangerous Goods Officer has a power to issue remediation notices where there is a contravention, or likely contravention, of the DGSA: s 47.
Section 67 provides that certain decisions of the Chief Officer are reviewable in the Tribunal. That section provides as follows:
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.
The types of decisions that are reviewable are set out in s 67(1). They include not only decisions in relation to licences but also decisions as to whether an exemption should be granted (pt 4), whether an audit is required (s 46(2)) and whether to suspend, cancel or confirm a direction given by a Dangerous Goods Officer (s 54). Clearly some of these decisions will relate to people other than an applicant for a licence, for example directions made by a Dangerous Goods Officer may be given to a person other than a licensee (see, for example, s 38(2)(b)).

The appellant's contentions

The appellant contends that the second respondent breached its obligations in respect of the site licence in a number of respects. Firstly it is said that the location plans that accompanied the application did not identify the existence of a residential caretaker facility on the appellant's land. This residence is said to be approximately 300 m from the storage site.
It is also contended by the appellant that the risk assessments submitted by the second respondent with its licence application did not identify the appellant's operation, in particular the existence of the caretaker's residence was not identified. Because of the proximity of the caretaker's residence any proper risk assessment should have taken into account the likelihood of harm to people at that residence.
It is also contended that the emergency plan submitted by the second respondent failed to identify the appellant's operations or include them in any emergency procedures. This is said to be a deficiency because the Dangerous Goods Site - Emergency Planning Code requires that an emergency plan should identify neighbours who are likely to be affected by any risks from the dangerous goods.
It is submitted on behalf of the appellant that as a neighbour in respect of whom duties are owed the appellant has an interest that is greater than ordinary members of the public. The appellant accepts that merely being an adjacent neighbour of a dangerous goods site may not be sufficient to demonstrate sufficient special interest to be considered a person aggrieved. However, it is said that the appellant is more than an adjacent neighbour because of its close proximity to the dangerous goods store, the scientific evidence as to the level of risk posed to its employees and contractors, its legitimate interest in carrying on business at its site unimpeded by the existence of a dangerous good storage facility and that it has 'effectively experienced the sterilisation of the use of its land'. This last factor appears to be a reference to an intention on the part of the appellant to seek planning approval for the building of transient workers accommodation to meet a perceived demand for such accommodation in the Port Hedland region.

Merits of the appeal

It is clear that appropriate risk assessment and the preparation of an emergency plan do require consideration for the safety of people and property on adjacent land. However, the duties in this regard are squarely imposed upon the applicant for a licence and, if a licence is granted, the operator of a storage site. Furthermore, those duties arise from codes of practice which act as a practical guide to licence applicants and operators, but which do not create civil or criminal liability in themselves: s 20 DGSA.
Thus, an evaluation of whether risk assessments and emergency plans are adequate and meet the general requirements of the DGSA must be made by the applicant or operator. The applicant or operator bears the risk that if, having regard to the relevant Codes, the risk assessment or management plan is found to be inadequate it will have its licence cancelled and may be prosecuted for breaching the DGSA.
The Chief Officer who grants the licence is under no obligation to notify neighbours of a pending licence application or to consult with them. If all appropriate documents, including a risk assessment and emergency plan, have been prepared and submitted the Chief Officer has no discretion to refuse a licence.
Whilst the Chief Office may seek further information from the applicant for a licence he is under no obligation to do so. The effect of the scheme is to impose upon licence applicants and site operators the obligation to ensure that they comply with the relevant provisions of the DGSA and the relevant regulations and codes. Thus, if the application for a licence and the accompanying documents appear to meet the requirements of the relevant regulations and codes, the normal course will be that a licence will issue.
The scheme of the legislation is not one that contemplates independent investigation into licence applications by the Chief Officer. There are no provisions for the Chief Officer to advertise applications, entertain objections or conduct hearings. Of course this does not mean that operators are unregulated, rather it means that operators bear the primary responsibility for ensuring that they are compliant with their obligations. Operators cannot avoid their responsibilities by relying on the regulator to ensure their facility meets appropriate safety requirements.
In the event that false or misleading information has been provided in a licence application the applicant may be liable to statutory sanctions including prosecution: reg 139. If the risk assessment and emergency plan are, as the appellant submits, deficient, the remedy is for the appellant to make complaint to the Chief Officer who can then consider whether to vary, suspend or cancel the licence. That is a process for which a clear procedure is set out in the DGSA.
The essentially self‑regulatory nature of the scheme is consistent with the second reading speech. It was clearly not intended that the licensing process would require the Chief Officer to conduct consultations or hearings. The absence of any right on the part of other parties to be heard in the licensing process weighs heavily against the appellant's contention that it should be considered an aggrieved person for the purposes of s 67. It is unlikely that a person would be granted the right to seek review of a decision when no right to participate in the decision‑making process is provided for. Such a right to seek a review would render every decision to grant a licence provisional in nature. That cannot have been the intention of the legislature.
None of this is to deny that the appellant is not materially affected by the existence of a dangerous goods storage site in reasonably close proximity to its own land. The appellant argues, no doubt correctly, that the existence of that storage site affects not only the safety of the appellant's property and employees but the use to which it can put its land. The appellant submits that in the absence of being informed of the application a person in the appellant's position may be unaware that a licence has been granted and that a site is operating.
The short answer to this proposition is that the licensing regime is concerned to ensure that dangerous goods are stored as safely as possible and with minimal risk to persons, property and the environment. The safety of neighbours (and others) can be properly accounted for without requiring any formal process of consultation or the conduct of a hearing. That a neighbour in the appellant's position may be adversely affected in commercial terms by being restricted as to the future use to which it can put its own land is not a consideration contemplated by the DGSA or the regulations. In this regard the position is analogous to Alphapharm in that the respondent in that case was seeking to challenge the approval of a drug not because of issues of availability, efficacy or safety of that drug, but to protect its commercial interests. In my view, the commercial interests of the appellant were not a matter that could have properly borne upon the decision as to whether a licence should issue. Accordingly, a failure to take them into account cannot justify a conclusion that a person so affected is a 'person aggrieved' within the meaning of that term as it applies here.
The appellant sought to support its argument by reference to the words of s 67. The appellant submitted that the definition of 'reviewable decision' in s 67(1) included decisions other than the grant or refusal of a licence. That is so, but it does not assist the appellant. That is because the other types of decisions referred to in the definition will clearly relate to, and directly affect, a particular person. That person will be readily identifiable. It does not follow that because some reviewable decisions relate to person other than applicants for licences that the intention of the Act is to encompass persons other than those who are the subject of the particular decision.
The appellant also suggested that the repetition of the phrase 'in relation to' had the effect of broadening the range of decisions covered. This was said to lead to the conclusion that it was not appropriate to read the term 'person aggrieved' as only applying to applicants for licences.
In my view the repetition of the phrase 'in relation to' merely reflects that the range of decisions that can be made in respect of a licence includes not only the grant or refusal of a licence but also decisions in regards to the imposition of conditions, the transfer of a licence, and the suspension or cancellation of a licence. These decisions all relate directly to the interests of an applicant or operator. In any event these words are only intended to describe the nature of decisions which can be reviewed, they do not themselves assist in determining who is a person aggrieved. It is only by referring to the types of decisions that can in fact be made that an understanding of who is directly affected by such decisions can be appreciated.

Conclusion

Appeals of this type are comparable to judicial review proceedings. The circumstances in which an appeal can be brought from a decision of the Tribunal are strictly limited to questions of law. The appellant must show that there is a real or significant argument to be put on a question of law, at least to the extent that there is sufficient doubt about it to justify the grant of leave. An appeal on a question of law does not, and should not, open the door to an appeal by way of rehearing: Osland v Secretary to the Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320 [18], [20] ‑ [21] and Lourey v Legal Profession Complaints Committee [2012] WASCA 112 [27] (Buss JA).
I am not persuaded that there is sufficient doubt as to the correctness of the Tribunal's decision as to whether the appellant is a 'person aggrieved' to justify a grant of leave. In my view on an examination of the context of the DGSA and the Regulations made under it the decision of the Tribunal is plainly correct. In these circumstances leave in respect of ground 1 must be refused. Accordingly it is unnecessary to consider ground 2 and 3.
The orders will be as follows:
1.Leave to appeal refused.
2.Appeal dismissed.