Pupfan Pty Ltd v the State of South Australia No. Scciv-02-1467

PUPFAN PTY LTD v THE STATE OF SOUTH AUSTRALIA
[2003] SASC 283
Land and Valuation Division

DEBELLE J This is an application to set aside as invalid a declaration made pursuant to s 46(1) of the Development Act 1993.
Section 46(1) of the Development Act prescribes a procedure by which an application for development consent for a development or a project of major environmental, social or economic importance may be taken out of the usual processes for assessment for the purpose of determining whether development consent should be granted prescribed by Division 1 of Part 4 of the Act and subjected to a different form of planning assessment pursuant to Division 2 of Part 4 of the Act. If a declaration is made pursuant to s 46(1), the planning assessment is made pursuant to Division 2. Section 46(1) provides:
“       46. (1)     The Minister may, if of the opinion that a declaration under this section is appropriate or necessary for the proper assessment of development or a project of major environmental, social or economic importance, by notice in the Gazette, declare that this section applies, or applies to the extent specified in the notice, to–
(a)    a development or project specified in the notice; or
(b)    a kind of development or project specified in the notice (either in the State generally, or in a specified part of the State); or
(c)    development generally within a specified part of the State.”
The Minister has made a declaration pursuant to s 46(1) in relation to an application for development consent lodged by the plaintiff. The plaintiff seeks to set aside the declaration on the ground that it is invalid. I now turn to the events leading to the making of that declaration and this application for judicial review.
A Development Application for a Waste Facility
On 22 May 2002 the plaintiff lodged an application for development consent for a solid waste land fill depot to be developed on land at Inkerman. The development application is a relatively substantial document prepared by Tonkin Consulting, consulting engineers retained by the plaintiff. It describes the proposed development in some detail. The development application discloses the following features of the proposal.
(1)The development will enable dumping of solid waste by a land fill method. The proposal envisages excavating below the existing natural surface and filling to a height similar to that of the existing surface.
(2)A buffer 500 metres wide will be provided around the area to be used for land fill. Thus, of the total of 394 hectares (973 acres), about 87 hectares (215 acres) or 22 per cent of the site will be used for land fill.
(3)The total area to be subject to the development measures 1.6 kilometres by 2.46 kilometres. The total area is therefore 394 hectares (973 acres).
(4)The land is a short distance east of Inkerman. It is currently used for grazing. It is surrounded by land which is currently used for grazing and the growing of cereal crops.
(5)Solid waste land fill is already being carried out on a site to the west of the site of the proposed development.
(6)The land fill will receive all types of waste except listed wastes.
(7)It is estimated that the site will be able to receive rubbish for some 25 to 30 years. It will receive up to 13 million cubic metres of waste.
(8)The land fill will emit methane and this will require a gas extraction and flaring system. If it is economic to do so, the land fill gas will be used.
(9)The land fill will require systems to prevent both ground water contamination by leaching and surface water contamination.
(10)The facility will operate seven days a week from 6.00am to 10.00pm and will receive about 25 to 30 covered vehicles in each day.
(11)The development application recognises the following potential environmental issues in addition to gas extraction and control of leachates and surface water contamination:
●       litter control;
●       noise control;
●       odour control;
●       bird and vermin control;
●       fire control;
●       dust control; and
●       weed and pest control.
(12) The proposal involves the removal of six hectares of native vegetation.
As the land is within the area of the Wakefield Regional Council, the application was lodged with the Council. As the application is for a solid waste land fill facility, the relevant planning authority was the Development Assessment Commission: see reg 38 and Schedule 10 of the Development Regulations.
The Minister’s Declaration
On 1 August 2002, by notice published in the Government Gazette, the Minister for Urban Development and Planning (“the Minister”) gave notice pursuant to s 46(1) that he had formed the opinion that a declaration under s 46 was appropriate for the proper assessment of development of major environment, social and economic importance and declared that s 46(1) of the Act should apply to the development of land for solid waste fill. The notice was in these terms:
“DEVELOPMENT ACT 1993: SECTION 46(1)
Preamble
Section 46 (1) of the Development Act 1993, allows the Minister for Urban Development and Planning to apply that section to a specified kind of development or project if the Minister is of the opinion that a declaration under that section is appropriate or necessary for the proper assessment of development or a project of major environmental, social or economic importance.
NOTICE
PURSUANT to section 46 (1) of the Development Act 1993, being of the opinion that a declaration under section 46 of the Act is appropriate for the proper assessment of development of major environmental, social and economic importance, I declare that section 46 of the Act applies to any development of a kind specified in Schedule 1.
Dated 25 July 2002.
J. WEATHERILL, Minister for Urban
Development and Planning

_______________________________
SCHEDULE 1
The following kinds of development are specified if undertaken in, or in relation to, that part of the State specified in Schedule 2:
(a)    building work;
(b)    change in use of land;
(c)the excavating or filling (or excavation and filling) of land, or the forming of a levee or mound higher than 3 m;
(d)    any other kind of development, excluding demolition,
for the purpose of, or ancillary to, establishing or operating a solid waste landfill facility.
SCHEDULE 2
The following parts of the State are specified for the purposes of Schedule 1.
1.   The whole of the land comprised in Certificate of Title Register Book Volume 5506, Folio 617 or Volume 5506, Folio 620.
2.   Other land on which it is necessary or desirable to undertake the kinds of development referred to in Schedule 1 for or in relation to the management, storage, treatment or disposal of stormwater, waste water or effluent caused by, or associated with, the establishment or operation of a solid waste landfill facility on the land referred to in clause 1.
J. WEATHERILL, Minister for Urban

Development and Planning”
Schedule 1 of the notice provides that development for the purpose of establishing a solid waste land fill facility is the form of specified development but only if it is undertaken in those parts of the State specified in Schedule 2. Clause 1 of Schedule 2 specifies the land that is the subject of the plaintiff’s development application. The two parcels of land there described are the plaintiff’s land on which the development is proposed. Clause 2 specifies the land on which it is necessary or desirable to undertake those works in association with the establishment of the facility on the land referred to in clause 1 of the Schedule. In this somewhat roundabout way, the Minister has prescribed the development as the subject of the declaration.
The Minister’s Letter to the Plaintiff
By letter dated 5 August 2002 the Minister sent a copy of the notice in the Gazette to the plaintiff. The relevant part of that letter reads:
“I refer to your Development Application of 22 May 2002 concerning the proposed Solid Waste Landfill Depot at Walkers Road Inkerman.
Pursuant to Section 46(1) of the Development Act 1993 I have determined that the development associated with the establishment and operation of a Solid Waste Landfill Depot at Walkers Road Inkerman (Certificate of Title Vol/Folio 5506/617 and 5506/620) is of major environmental, social or economic importance and have made a declaration in the South Australian Gazette. Please find a copy of the Gazette Notice attached.
The proposal by Pupfan Pty Ltd to develop a Solid Waste Landfill Depot comes within the ambit of this declaration. This development will be known as a ‘Major Development’ and as such is subject to a determination of the Major Developments Panel with respect to the preparation and consideration of an Environmental Impact Statement (EIS), a Public Environmental Report (PER) or a Development Report (DR).
The Council (Wakefield Regional Council) will also be advised of this project’s declaration as a major development.
It should be noted that a declaration does not indicate support or otherwise for the proposal. It will be subject to the Major Developments assessment process before a decision is made by the Governor for approval or refusal.”
The Effect of a Declaration
If a declaration is made under s 46(1) the proposed development is assessed under a different régime from that prescribed by Division 1. It is unnecessary in this application to note each step of the procedure. It is sufficient to note that the proponent is required by s 46(6) to lodge with the Minister an application or proposal which describes a development or project and sets out the information prescribed by s 46(6). Of particular note is s 46(6)(d)(iii) and (iv) which require the proponent to provide:
“(iii)a description of the expected environmental, social or economic effects of the development or project;
(iv)a statement on how those effects could be managed.”
The project is then referred by the Minister to the Major Developments Panel which identifies the issues relating to the assessment of the development and determines, among other things, which of the procedures prescribed by Division 3 should be implemented for that assessment. The panel may consult with the Environment Protection Authority (“the EPA”). The panel may require the proponent to prepare one or more of an environmental impact statement, a public environmental report or a development report. The Minister must assess the project. Provision is made for public consultation of particular stages in the process. On receipt of the relevant reports, the Governor may grant or refuse a development authorisation: s 48. There is no right of appeal from the Governor’s decision: s 48(12).
Application to this Court
In this application, the plaintiff seeks orders in the nature of declarations
(1)that the determination of the Minister that the development associated with the establishment and operation of a solid waste land fill depot on the plaintiff’s land at Inkerman is of major environmental, social or economic importance is null and void;
(2)that the declaration of the Minister dated 25 July 2002 is null and void; and
(3)that the notice published by the Minister in the Government Gazette on 1 August 2002 is null and void.
The plaintiff also seeks a number of ancillary orders. Those orders include what the summons calls “orders by way of judicial review” quashing the Minister’s declaration. The summons does not specify the kind of orders it seeks by way of judicial review. It is desirable that it should. It seems that the plaintiff seeks orders in the nature of certiorari to quash the declaration.
The Privative Clause
The jurisdiction of this Court to make an order in the nature of judicial review or to order a declaration challenging action taken pursuant to Division 2 of the Development Act is circumscribed by s 48E of that Act. Section 48E provides:
“       48E. No proceeding for judicial review or for a declaration, injunction, writ, order or other remedy may be brought to challenge or question–
(a)    a decision or determination of the Governor, the Minister or the Major Developments Panel under this Division; or
(b)    proceedings or procedures under this Division; or
(c)    an act, omission, matter or thing incidental or relating to the operation of this Division.”
This provision will oust the jurisdiction of this Court only if, when making the declaration, the Minister was acting within power. As Dixon J noted in R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 at 615:
“Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body.”
There is no suggestion that the Minister was acting other than bona fide or reasonably. The only issue in this action is whether the Minister was acting within the power vested in him. The resolution of that question depends on the meaning and effect of s 46(1), that is to say, whether the question whether the proposed development is in fact of major environmental, social or economic importance is a prerequisite for the exercise of the Minister’s opinion or whether it is a matter which the Minister determines in the exercise of his opinion.
The Grounds of the Application
Section 46(1) is not happily expressed. It is apparent that the adjectival phrase “of major environmental, social or economic importance” qualifies both “development” and “project”. That is common ground. It is also apparent that the Minister is at liberty to form an opinion that a declaration is appropriate or necessary. That also is common ground and there is no challenge to the Minister’s opinion on that question. The only issue is whether s 46(1) invests the Minister with power to form an opinion whether a development or project is of major environmental, social or economic importance or whether that is a factual prerequisite to the exercise of the power.
The plaintiff contends that the meaning and effect of s 46(1) is that the Minister may make a declaration only if it is an objective fact that a development or project is of major environmental, social or economic importance. It then asserts that, on the evidence, the project was not of major environmental, social or economic importance. That, it said, leads to the conclusion that the Minister had no power to make the declaration.
The defendant contends that it is not a prerequisite to the exercise by the Minister of the power in s 46(1) to make a declaration that a development project is in fact of major environmental, social or economic importance. Instead, it contends, it is for the Minister to form the opinion whether the development or project is of major environmental, social or economic importance.
The defendant contends that the effect of the plaintiff’s contention is that s 46(1) should read:
“Where there is a development or project of major environmental, social or economic importance, the Minister may, if of the opinion that a declaration under this section is appropriate or necessary for the proper assessment of a development …”.
The plaintiff’s reply is that the defendant is, in effect, contending that s 46(1) should read:
“That the Minister may, if of the opinion that a declaration under this section is appropriate or necessary for the proper assessment of a development or project which in the opinion of the Minister is of major environmental, social or economic importance …”.
As will be apparent from the following reasons, in the particular circumstances of this case, the validity of the declaration will not be affected by the determination as to which of those two alternative constructions of s 46(1) is correct. Whichever is the correct construction, the declaration is valid.
No Jurisdictional Fact
When I first read s 46(1), I believed that the adjectival phrase “of major environmental, social or economic importance” qualified the words “development” and “project” in such a way that the Minister could form his opinion that a declaration is appropriate or necessary only if the proposed development was in fact a development of major importance. In other words, unless it could be objectively established that the proposed development was in fact a development of major importance, the Minister had no power to act. However, on further consideration, I do not believe that conclusion to be correct.
A determination that a development is of major environmental, social or economic importance may be a difficult and complicated task. The expression “of major environmental, social or economic importance” is not a term of art. It requires consideration of a number of different factors. There is no objective criterion by which it is possible to determine that question. A proposed development may be of major environmental importance or of major social importance or of major economic importance or a combination of those criteria. There will be questions as to the relevance of particular factors and as to the weight to be attached to the factors which are identified as relevant.
The question whether a proposed development is of major environmental, social or economic importance ultimately involves a value judgment. While it might be easier to determine whether a development is of major environmental importance, by what criterion is a determination made that a development is of major social importance? The epithet “major” is a word of comparison. It qualifies the noun “importance”. As Fowler notes, “major” is a convenient word to describe something of more than ordinary importance or likely to have unusually serious consequences: A Dictionary of Modern English Language (2^nd edition). Thus, the question is whether the proposed development is unusually important or serious from an environmental, economic or social standpoint or any combination of those criteria.
In this case, it is common ground that the relevant question is whether the project is of major environmental importance. That question might be expressed in a number of different ways. Three possibilities are
•whether the proposed development is unusually important or serious to the environment; or
• whether the proposal is of more than ordinary environmental importance; or
•does the proposal have the potential to have unusually serious consequences for the environment?
Each of those questions may not necessarily result in the same enquiry. Even if they do, it is likely that reasonable minds may reasonably differ as to the conclusion.
The question whether a development is of major environmental, social or economic importance is, therefore, not a question of fact but a conclusion based on an assessment of facts and opinions and involving the exercise of a value judgment in circumstances where there are no objective criteria which assist in reaching the ultimate conclusion. At the risk of repetition, the word “major” requires comparisons to be made so that reasonable minds may legitimately differ on that conclusion. Although courts are able to apply criteria, however imprecise, if Parliament requires them to do so: R v City of Munno Para; ex parte John Weeks Pty Ltd (1987) 46 SASR 400 per King CJ at 403, the terms of s 46 involve questions where the criteria are so imprecise and the ultimate conclusion is so debatable that I do not think that Parliament intended the courts to determine this question. Certainly, it is not clear from the terms of s 46(1) that Parliament has required the courts to do so. To adapt the remarks of Sackville J in Tasmanian Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516 at 538, the structure and the language of s 46(1) do not compel the conclusion that the Minister may only form the opinion that a declaration should be made whenever the objective facts establish that the proposed development is of major environmental, social or economic importance. See also Australian Heritage Commission v Mt Isa Mines Ltd (1995) 60 FCR 456 per Black CJ at 466 and on appeal (1997) 187 CLR 297.

When determining whether a jurisdictional fact exists, the inconvenience of that result is a powerful indication of the intention of the Parliament: Australian Heritage Commission v Mt Isa Mines Ltd (supra) at 466; Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 per Dixon J at 391. There is scope for considerable inconvenience and delay to the process of determining whether to grant development consent to major developments and projects if, on each occasion that the Minister made a declaration pursuant to s 46(1), it was possible to conduct an enquiry whether the development was in fact of major environmental, social or economic importance. It is not difficult to conclude that such a result would not have been intended by the Parliament.
For these reasons, I conclude that it is for the Minister to decide, in the exercise of his opinion, whether a development is of major environmental, social or economic importance. The ability of the Minister to make a declaration does not depend on a jurisdictional fact that the proposed development is in fact a development of major environmental, social or economic importance.
This conclusion does not mean that the Minister’s decision is entirely immune from judicial review. If the Minister were to conclude that a proposed development is of major importance, when on any view it was not, the decision could be set aside on the ground that it was not made bona fide or was unreasonable: Hickman’s Case (supra).
Support for this conclusion can be found in the history of this legislation.
The Previous Legislation
The Planning Act 1982 provided for assessment of major developments in s 49 to s 51 which constituted Divisions 2 and 3 of that Act. Section 49, which constituted Division 2, authorised the Minister to require the preparation of an environmental impact statement where a proposed development or project was “in the opinion of the Minister of major social, economic or environmental importance”. After the prescribed procedures had been complied with, the Minister signified by notice to the proponent of the development that the environmental impact statement was officially recognised. The relevant planning authority was required by s 49(7) to have regard to the environmental impact statement when determining whether to grant or refuse consent to the proposed development. Sections 50 and 51, which constituted Division 3 of the Act, provided that the consent of the Governor was required to developments declared by the Governor to be subject to Division 3. The circumstances in which the Governor could declare that Division 3 applied were prescribed by s 50(1) in these terms:
“50.(1) Where the Governor is of the opinion that a declaration under this Division is necessary to obtain adequate control of development of major social, economic or environmental importance, he may, by notice published in the Gazette, declare that this Division applies to—
(a) development generally within specified parts of the State;
or
(b)specified forms of development throughout the whole of the State, or within specified parts of the State.”
It will have been noticed that s 50(1) is in very similar terms to s 46(1) of the Development Act. It is necessary also to note that s 51(3) required that the Governor could not grant or refuse consent to a development unless “an environmental impact statement has been prepared under Division 2 in respect of the proposed development and official recognition has been recorded to that environmental impact statement”. As already noted, s 49 provided for official recognition to be given to an environmental impact statement. Significantly, an environmental impact statement had to be prepared if, in the opinion of the Minister, a development was of major social, economic or environmental importance. It is likely that the administrative process would have been as follows. First, the Minister formed the opinion that a development or project was of major social, economic or environmental importance and required the proponent to prepare an environmental impact statement. At that stage, or at some later stage, the Governor would then be advised to make a declaration under s 50. The Governor would then be acting in circumstances where the Minister had already formed the opinion that the development or project was of major social, economic or environmental importance.
There was, of course, nothing to prevent the Governor from making a declaration under s 50 in the absence of a decision by the Minister under s 49. Given that s 49 of the Act authorised the Minister to require an environmental impact statement where in his opinion the development or project was of major social, economic or environmental importance, it is extremely unlikely that Parliament intended that the operation of s 50 would not also be triggered by the Governor forming a like opinion as to a proposed development or project. In other words, s 50 did not depend on an objective assessment that the development was, in fact, of major social, economic or environmental importance.
The Planning Act 1982 was repealed by the Statutes Repeal and Amendment (Development) Act 1993 and replaced by the Development Act 1993. The Development Act contained a régime for the assessment of major developments and projects which was prescribed by s 46 to s 48 which constituted Division 2 of the Act as it then stood. The régime which was first prescribed by the Development Act differed from the current régime and was very similar to the régime prescribed by the Planning Act 1982. Section 46(2) authorised the Minister to arrange for the proponent of a major development to prepare an environmental impact statement. Section 46(2) was in these terms:
“       (2)    Where the Minister is of the opinion that a proposed development or project is of major social, economic or environmental importance–
(a)    the Minister may, in consultation with the proponent, have prepared, or arrange for the preparation of, an environmental impact statement in relation to the proposed development or project; or
(b)    the Minister may require the proponent to prepare an environmental impact statement in relation to the proposed development or project in accordance with guidelines determined by the Minister.”
It will be noticed that the question whether the proposed development was of major importance was for the Minister to decide in the exercise of his opinion.
Section 48 required that the proponent of a development would have to comply with the régime prescribed by Division 2 either where the Minister had required an environmental impact statement or where the Governor had made a declaration. It is necessary to set out the terms of s 48(1) and (2) only. The other provisions in s 48 prescribe the procedure for assessment of the proposal.
“       48.    (1)    This section applies to a proposed development–
(a)    that is the subject of an environmental impact statement under this Division; or
(b)    that is within the ambit of a declaration under subsection (2).
(2)    The Governor may, if of the opinion that a declaration under this section is necessary to obtain adequate control of development of major social, economic or environmental importance, by notice in the Gazette, declare that this section applies, or applies to the extent specified in the notice, to–
(a)    a development specified in the notice; or
(b)    –
(i)development generally within a specified part of the State; or
(ii)a form of development specified in the notice (either in any part of the State, or in a specified part of the State).”
That régime is to all intents and purposes the same as that in the Planning Act 1982. For the reasons already expressed, the Governor was at liberty to make a declaration when of the opinion that a development or project was of major social, economic or environmental importance.
In 1996, s 46 to s 49 were repealed by the Development (Major Development Assessment) Amendment Act 1996 and a new Division 2 was inserted in its place. That constitutes the current régime. Although the régime for assessing a major development or project is different under the current legislation and although the current legislation authorises the Minister instead of the Governor to make a declaration, it is extremely unlikely that Parliament would have intended to change the prerequisite for making a declaration. In other words, all that is required is that the Minister form an opinion that the development or project is of major environmental, social or economic importance.
The Objective Test Does Not Assist the Plaintiff
If, contrary to the reasons I have given, a necessary prerequisite of the Minister’s power to make a declaration pursuant to s 46(1) is that a proposed development is in fact of major environmental, social or economic importance, it is clear that, in the particular circumstances of this case, the proposed development is in fact of major environmental importance. I set out my reasons for that conclusion. I deal first with the evidence and then with the questions of law involved in determining whether the plaintiff’s proposed development is of major environmental importance.
The Witnesses
Evidence was given by three witnesses, Messrs Bolderoff and Lightbody, who were called by the plaintiff and Ms Wagner, who was called by the defendant. Each had sworn at least one affidavit and each was cross-examined on that affidavit. I list the affidavit evidence which was admitted.
•       Mr Bolderoff sworn 14 October 2002 and the exhibits thereto.
•       Mr Lightbody sworn 6 March 2003.
•       Mr Lightbody sworn 12 March 2003.
•       Ms Wagner affirmed 2 April 2003 and the exhibits thereto.
•       Ms Wagner affirmed 5 June 2003.
Mr Bolderoff is the technical services manager of the plaintiff. His evidence listed the grounds of the application but did not otherwise assist the resolution of the issues in this application. Although he is, no doubt, an experienced operator in this field, it was quite apparent that he was relying on the advice of Mr Lightbody who had been retained by the plaintiff to advise it in respect of this application and to design the systems required to manage and control the potential hazards to the environment.
Mr Lightbody holds a Bachelors degree of civil engineering gained in 1990 and a Masters degree in waste management gained in 1994. He has had some 12 years experience in the engineering and design of solid waste fill land facilities.
Ms Wagner is the Principal Adviser, Waste Management at the Environment Protection Authority (“the EPA”). She has held that position since May 2001. She holds a Masters degree in biology with a specialty in technical hydrology. She has been involved in managing solid waste facilities in Germany since 1990. She has held senior positions in Germany. She came to Australia in 1999. After working in Cairns, she came to Adelaide in May 2001 and took up her present appointment. She has been involved in advising the EPA on six major land fill sites, four of which have been declared to be major developments pursuant to s 46(1) of the Development Act.
Having regard to the manner in which the issues and the evidence unfolded, I do not think it is necessary to express my views as to the demeanour of the witnesses other than to say that I found Ms Wagner to be a most impressive witness and certainly more impressive than Mr Lightbody. Where her evidence conflicts with that of Mr Lightbody, I prefer her evidence. It was apparent from her demeanour and the substance of her evidence that she is careful and meticulous.
The nature of the solid waste land fill facility proposed by the plaintiff has already been described in outline. The evidence of both Ms Wagner and Mr Lightbody confirms what many might regard as a well-known fact, namely, that a large rubbish dump has a real potential to create problems for the environment. Their evidence provides a reasoned approach to that conclusion. I set out the effect of their evidence as to the environmental problems which must be addressed and the means of dealing with each problem.
A Substantial Excavation
The proposed land fill is essentially an enormous cavity excavated from the earth with moderately built up sides. It is to be divided into “cells” which are smaller cavities which usually accommodate different types of waste. The plaintiff’s proposal is to accommodate all types of waste except certain listed wastes.
Control of Leachates
The evidence establishes that a land fill site must be designed to ensure there is as little escape of leachate as possible from the excavated area to surrounding soil and ground water. Leachate is the name given to contaminated water in a land fill facility brought in with the waste or which results from rain or surface water running on to the land. Water percolates down to the base of the land fill together with chemicals that are present in the waste. This contaminated water or “leachate” will pollute the soil and also any ground water with which it comes into contact. It is proposed to design a liner to seek to prevent the escape of leachates. However, it is not possible to design a completely impervious liner. In order to assess the potential for soil and ground water pollution from leachate, it is necessary to know what soils and rock formations are on site at the surface level and beneath the surface, what ground water is on the site, and how the base of the land fill is to be constructed to ensure as little percolation as possible to soil, rock and ground water aquifers. Generally speaking, this requires a detailed examination of the site. It will also be important to know how the waste will be segregated in the cells because different waste in different combinations can produce toxic chemicals which can react differently with the base of the land fill and to affect the degree to which leachate will percolate through the base. Clearly, the pollution of soil and ground water can give rise to serious environmental concerns so that the minimisation of leachate pollution is of major concern when examining a proposed land fill.
Large amounts of leachate will pool at the bottom of the land fill. As no land fill facility can ever be made water tight, it is necessary to pump leachate from the land fill through a specially designed leachate management system. Leachate must then be accumulated in ponding basins in order that it may evaporate and the residue then disposed of. The design of the leachate management system and of the ponding basins is plainly important.
Land Fill Gas
Gas is a bi-product of the operation of a land fill. Low volume land fill gas typically contains 45 to 60 per cent methane and 40 to 60 per cent carbon dioxide. It also includes small amounts of nitrogen, oxygen, ammonia, sulphides, hydrogen, carbon monoxide and non-methane organ compounds. The gas is a so-called “greenhouse gas”. It adds to the depletion of the ozone layer when it escapes into the atmosphere. The gas has a potential to become explosive if not properly managed. Thus, a detailed land fill gas management plan is necessary to address this important environmental concern.
Capping of Cells
Once each cell fills with waste to its maximum capacity, it must be capped in order to limit the escape of land fill gas, chemicals or pathogens from the waste and in order to prevent rain entering the cells. It is important to know what soil is proposed to be used in the capping process and how the capping is to be engineered and constructed to ensure that it remains as non-permeable as possible to rain and stormwater.
Storm Water
It is essential to arrange for the satisfactory disposal of storm water on and around the land fill site in order to reduce leachates and erosion. The escape of water has the potential to pollute the surrounding environment.
Dust Control
Dust control is another important environmental issue. If not managed properly, land fill facilities have the potential to produce a large amount of dust which may carry pathogens and contaminants over considerable distances.
Other
Other potential problems which must be addressed are
(1)Litter – waste often takes the form of litter which can be blown about. It is therefore necessary that there are adequate controls upon litter.
(2)Vermin and Birds – Waste attracts vermin and birds requiring adequate controls to prevent both.
(3)Weeds and Pests – Waste attracts both weeds and pests and it is necessary to control both.
(4)Odour – Odour is a major issue particularly where, as here, there is another land fill site in the near vicinity.
(5)Fire Risk – Land fills have a capacity to create fire risks requiring adequate emergency procedures.
According to Ms Wagner, no land fill can be designed to ensure that there will be no adverse consequences for the environment. All that can be done is to put controls in place to reduce the potentially adverse consequences to a minimum.
The development application had been prepared by the plaintiff’s consulting engineers and, in particular, by Mr Lightbody. It describes the proposed solid waste land fill facility. It is not a proposal backed up with detailed plans. Instead, it describes the proposed development, the site of the development, information as to the geology and hydrology and climate of the area and states that the detailed design of the development will be prepared once development approval has been granted. It also states that a Land fill Environment Management Plan (“a LEMP”) and a detailed plan of operations will be provided once development approval has been granted, and both will comply with EPA licensing requirements. The proposal identifies potential hazards to the environment and states that detailed plans and systems will be provided after development approval, and to a standard approved by the EPA. Thus, detail on the following has yet to be provided:
•       the LEMP;
•       design of cell construction;
•       design of the leachate management system;
•       design of the capping of the land fill;
•       design of stormwater disposal;
•       design of a gas extraction and flaring system;
•a program to control weeds, pests and other incidents of a waste disposal facility of this kind;
•strategies to minimise fire risk;
•an emergency response plan; and
•the detail of the proposed landscaping.
I accept Ms Wagner’s evidence that it will be necessary for the plaintiff to conduct a detailed investigation of the soil on the site for the purpose of preparing a number of its detailed plans.
A good deal of evidence was led on the question whether a planning authority would grant development consent on the basis of the information contained in the plaintiff’s application. It was submitted that all of the proposed systems to deal with the potential hazards to the environment would be designed to the satisfaction of the EPA and that the EPA would approve the LEMP before the plaintiff commenced its operations. That is not a relevant issue when determining whether the proposal is for a development of major environmental importance.
This is an extremely large land fill facility. Its total area is 394 hectares (973 acres), of which almost 87 hectares (215 acres) or 22 per cent of the site will be actually used for land fill. The remainder will be a buffer area. It has the capacity to receive up to 13 million cubic metres of waste and it is anticipated that it will be in operation for some 25 to 30 years. The area of 87 hectares which will be devoted to land fill is equivalent to an area 932 metres long and 932 metres wide – almost one kilometre by one kilometre. That is an extremely large site. It is one of the largest land fill facilities in the State. It is, therefore, very large in absolute as well as relative terms.
Any reasonably large rubbish dump is plainly of importance to the environment because of its potential adversely to affect the environment in a number of ways. This facility is so large and will continue in operation for so long that it plainly has more than an ordinary potential to affect the environment. It is necessary to put in place the systems and management procedures to prevent those adverse effects. Given the anticipated life of the development, it is necessary to ensure that the systems and management procedures continue to be effective. In this respect, it is to be noted that the EPA requires that an LEMP should be updated at least every five years or sooner if certain circumstances occur.

Given the size of this proposal, its anticipated life of 25 to 30 years, and the environmental issues it creates, it is clearly of environmental importance.
That conclusion is reinforced by the combined operation of s 36 of the Environment Protection Act 1993 and clause 3(3) of Schedule 1 to that Act. The effect of those provisions is that the conduct of a waste facility of this kind is a prescribed activity of environmental significance.
In modern usage, the noun “significance” means “importance” or “of consequence”: Macquarie Dictionary. That is despite the fact, as Fowler notes, that to use “significant” as a synonym for “important” is to waste it: Dictionary of Modern English Usage (2^nd ed). I think that Parliament has used the word “significance” in s 36 as a synonym for “importance”. Thus, in s 36, the expression “of environmental significance” means of environmental importance or of environmental consequence. However, the terms of s 46(1) of the Development Act are not satisfied if the proposed development is merely of environmental importance. What s 46(1) requires is a development or project which is of major environmental importance, that is to say, that it has features which make it unusually important for the environment or of major consequence for the environment.
In my view, it is manifestly clear that the plaintiff’s proposal is of major environmental importance. There are two routes to that conclusion. The first is that it is defined as a development of major environmental importance by statutory instruments. The second is that it is in fact of major environmental importance.
The Statutory Instruments
Schedule 22 of the Development Regulations 1993 made under the Development Act prescribes certain activities as “activities of major environmental significance”. Again, for the reasons already expressed, I believe that the noun “significance” is being used as a synonym for “importance”. Clause 3(3) of Schedule 22 provides that a waste facility of the kind proposed by the plaintiff is an activity of major environmental significance, that is to say, it is an activity of major environmental importance.
A document entitled “Guidelines for Major Solid Waste Land Fill Depots” has been published and endorsed by the EPA. Those guidelines define a “major solid waste land fill depot” as a depot that, among other things, has a total land fill storage capacity that exceeds 230,000 cubic metres. The plaintiff’s proposal has a total storage capacity of 13 million cubic metres, that is to say, it is some 56 times larger than a major depot as defined in the guidelines. The guidelines have no statutory force but they reinforce the conclusion that the plaintiff’s proposal is for a facility of major environmental importance.
A Facility of Major Environmental Importance
Even if one puts the statutory criteria to one side, there can be no doubt that the proposal is for a development of major environmental importance. It is a large facility. I have already referred to its dimensions. It will hold 13 million cubic metres of waste. It will operate for some 25 to 30 years. It is very large when compared with most land fill waste facilities in this State. It is not as large as the neighbouring Pathline facility at Inkerman which has the capacity of 21 million cubic metres. However, as the evidence of Ms Wagner shows, the proximity of the Pathline development to the proposed development adds to the environmental importance of the plaintiff’s proposal. It creates a need for careful scrutiny to ensure that the proximity of these two large facilities does not result in a greater risk of adverse consequences to the environment.
Mr Hayes QC, who appeared for the plaintiff, pointed to the fact that the proposed development would incorporate the necessary environmental controls to a standard approved by the EPA and will have a LEMP approved by the EPA. Thus, he said, although the proposal is clearly for a very large waste facility, it will not adversely affect the environment and so will not be of major environmental importance. In my view, the argument fails to recognise the purpose of s 46 and, therefore, fails. The purpose of s 46 and other provisions in Division 2 of the Development Act is to enable the Minister to identify a development of major environmental, social or economic importance and to ensure that the proposed development is subjected to detailed examination so that, if a development authorisation is granted, proper controls are put in place. If the Minister identifies a development which has a potential for or does in fact cause serious environmental consequences of an important kind, the Minister can ensure that the proposal is properly assessed. If development consent is granted, all appropriate safeguards can be put in place as well as steps to ensure that the development is properly managed. If the development is of a kind that would adversely affect the environment in a serious way unless proper and adequate safeguards and controls are put in place, the development is of major environmental importance. It is manifestly apparent that, absent proper safeguards and controls and absent proper management, the plaintiff’s proposal would have severe consequences for the environment.
Furthermore, if the argument advanced by Mr Hayes were to succeed, it would rob s 46(1) of much of its intended operation because any development which is properly propounded would have controls in place to seek to prevent adverse environmental consequences. An examination of s 46 and other provisions in Division 2 shows that the purpose of the Division is to control actual, as well as potential, environmental consequences. Plainly, it is necessary to ensure that any systems which are proposed to prevent adverse environmental consequences are not only adequate but also to ensure they will function throughout the life of the project and that proper management procedures will be in place and continue throughout the life of the project.
This conclusion is reinforced by the terms of s 46(6)(d)(iii) and (iv). Once a project or development has been identified as being of major environmental, social or economic importance, the proponent is required by s 46(6)(d) to lodge with the Minister an application or proposal which includes, among other things, a description of the expected environmental, social or economic effects of the project of development and a statement of how those effects could be managed. The terms of s 46(6)(d) serve to emphasise that s 46 is concerned, among other things, with potential effects, be they environmental, social or economic, and how they will be managed.
Clearly, all waste disposal facilities have a real potential for adverse effects on the environment unless adequate measures are taken to prevent them. The evidence confirms that the larger the waste disposal facility, the greater are the problems. However, there is no direct relationship between size and the potential problems, that is to say, the fact that one facility is twice as large as another, does not mean that the potential problems are necessarily twice as great.
The fact that the proposed development is to be located in a rural area and not far from an existing waste facility does not render it any the less important from an environmental standpoint. As Ms Wagner pointed out, the proximity of two large waste facilities calls for careful scrutiny to ensure that the combined operation does not cause environmental consequences which one development might not.
Furthermore, s 46(1) does not require the proposed development to be larger in scope than other developments. In this case, it is not necessary that the proposed development be larger than existing waste facilities. The word “major” imports questions of degree. There may be a number of waste facilities. As long as the proposed development has the potential to create serious environmental hazards and the development is of reasonable size, it may qualify as being of major environmental importance.
In this respect, it cannot be emphasised too much that it is not necessary for a proposed development to be large to qualify as being of major environmental importance. For example, an application to develop a small nuclear power facility in, say, the Central Business District of Adelaide would, because of the potential hazards of nuclear radiation, in all likelihood, qualify as a development of major environmental importance, particularly as it would be in a heavily populated area. In short, size is not the only criterion by which to determine whether a development is of major environmental importance.
For these reasons, even if a prerequisite for the making of a declaration by the Minister pursuant to s 46(1) should be that the proposed development is in fact of major environmental importance, the plaintiff’s proposal is for a development of major environmental importance. In other words, the prescribed circumstances existed for the exercise by the Minister of the power to make a declaration. Thus, s 48 denies the plaintiff an opportunity to challenge the validity of the declaration.
Mr Hayes also submitted that the plaintiff’s proposal need not be the subject of a declaration under s 46 because the Development Assessment Commission, in consultation with the EPA and other relevant agencies, will be able to determine whether development consent should be granted and to determine any necessary conditions upon the grant of consent. That is an irrelevant issue. I repeat, it is quite apparent that the purpose of s 46(1) is to enable the Minister to identify a development of major environmental, social or economic importance and to require that it undergo assessment by another more detailed process for the purpose of determining whether a development authorisation should be granted. The process is limited to developments or projects of major environmental, social or economic importance. Once those characteristics are established in the Minister’s opinion, that marks the development out for a more detailed assessment. The Development Act expressly contemplates the procedure as an alternative to the process prescribed in Division 1.
No Capacity to Challenge Declaration
It is apparent, therefore, that in the particular circumstances of this case, the same result is reached whichever of the two alternative constructions of s 46(1) is adopted. No matter whether the question whether the plaintiff’s proposed development is of major environmental importance is decided by the Minister in the exercise of his opinion or is to be determined as an objective fact, each route leads to the same conclusion that the plaintiff is barred by s 48 from being able to challenge the validity of the declaration.
The Schedules
The notice of the declaration has been curiously drafted. It is in a form which should not be repeated.
The first paragraph of the notice is a preamble and has no purpose other than to recite the power vested in the Minister by s 46(1).
The next paragraph does no more than give notice that the Minister has formed an opinion that a declaration under s 46(1) should be made. In that paragraph, the Minister declares that s 46 applies to any development of a kind specified in Schedule 1.
Schedule 1 then specifies forms of development undertaken on the land specified in Schedule 2. The first paragraph of Schedule 2 refers to the plaintiff’s land. The second part of that Schedule refers to other land. Schedule 1 specifies that development of the kind stated in the Schedule which is for the purpose of or is ancillary to establishing or operating a solid waste land fill facility is a prescribed form of development. The forms of development are
(a) building work;
(b) change in use of land;
(c)the excavating or filling (or excavation and filling) of land, or the forming of a levee or mound higher than three metres; and
(d)any other kind of development, excluding demolition.
This list is, in essence, no more than a repetition of the definition of “development” in s 4 of the Development Act.
The kind of development to which Schedule 1 refers is capable of including the most minor and inconsequential forms of development. For example, it includes the erection of a small toolshed, a small cottage, or a garage. It is capable of including a large list of forms of development which could not, on any view, constitute a development of major environmental importance. Mr Hayes QC pointed to that fact and submitted that, as the notice did not in terms relate to a development of major environmental importance, it was invalid. The effect of his argument was that, in order to be valid, the notice of the declaration must itself identify the development or project of major environmental importance. The argument is attractive but must fail for the reasons which follow.
First, the argument raises issues which by virtue of s 48E of the Development Act cannot be examined. The making of the declaration is protected from, inter alia, any proceeding for a judicial review or for a declaration as to its validity. The argument seeks to challenge the validity of the declaration in circumstances where, for the reasons already given, the Minister had power to make the declaration. The plaintiff’s challenge, therefore, is barred by s 48E. It also fails even if one ignores s 48E.
The declaration made pursuant to s 46(1) is not made in a vacuum. Before a declaration can be made, there must be a development of major environmental, social or economic importance. Even on the plaintiff’s own case, it is necessary that development of major environmental importance must in fact exist before the Minister may make a declaration. Absent such a development, there is no power to make the declaration. It is quite apparent that it is the plaintiff’s application which has caused the declaration to be made.
Once the Minister decides that a development is of major environmental, social or economic importance and that it is necessary or appropriate for the proper assessment of the development to make a declaration, the Minister can specify that s 46 applies in respect of a number of alternatives. They are listed in s 46(1) and they may apply to the extent specified in the notice of the declaration. They are:
“(a) a development or project specified in the notice; or
(b) a kind of development or project specified in the notice (either in the State generally, or in a specified part of the State); or
(c) development generally within a specified part of the State.”
This declaration falls within para (b).
The Minister has not simply subjected all forms of development on this land to the régime prescribed by s 46. Schedule 1 prescribes that any kind of development on the plaintiff’s land is subject to s 46, no matter how small or insignificant the development provided that it is for the purpose of or is ancillary to the establishment or operation of a solid waste land fill facility. The Minister has in this case taken an approach which is extraordinarily cautious.
I think it would have been preferable if the notice and Schedules had been expressed differently. However, for these reasons, Schedule 1 does not result in the invalidity of this declaration.
The plaintiff also attacked the validity of the notice by reference to the terms of Schedule 2. Paragraph 2 relates to land other than the plaintiff’s land. This argument too must fail by reason of s 48E. In addition, the argument lacks merit. It is patently clear that the Minister seeks to ensure that there is a proper control of stormwater, waste water or effluent from the plaintiff’s land and to be able to ensure that, to the extent it might flow onto or affect other land, it is controlled on that other land. Thus, even if s 48E did not exist as a barrier to the plaintiff’s argument, this argument too would fail.
Conclusion
For all of these reasons, the plaintiff’s challenge of the validity of the declaration must fail. It follows that the plaintiff is not entitled to the relief it seeks. There will be an order dismissing the plaintiff’s claim.

[2003] SASC 283

21 August 2003