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

PUPFAN PTY LTD v THE STATE OF SOUTH AUSTRALIA
[2002] SASC 443
Land and Valuation Division

DEBELLE J This is an application for leave to serve a summons seeking orders in the nature of judicial review to set aside a declaration made under s 46(1) of the Development Act 1993 (SA).
Section 46(1) of the Development Act prescribes a procedure by which an application for development approval for a development or a project of major environmental, social or economic importance may be taken out of the ordinary process for assessment prescribed by Division 1 of Part 4 of the Act and subjected to a different form of scrutiny by a process prescribed in Division 2 of Part 4 of the Act. 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 approval lodged by the plaintiff. The plaintiff seeks to set aside the declaration. I now turn to the events leading to the making of that declaration and this application for judicial review.
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 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 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).
(2)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.
(3)Solid waste land fill is already being carried out on a site to the west of the site of the proposed development.
(4)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.
(5)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.
(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 economic, 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:
●       litter control;
●       noise control;
●       odour control;
●       bird and vermin control;
●       fire control;
●       dust control; and
●       weed and pest control.
As the land is within the area of the Wakefield Regional Council, the application was lodged with the Council. The application was also lodged with the Development Assessment Commission.
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. 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 identified the development proposed by the plaintiff as the subject of the declaration.
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 of the Major Developments assessment process before a decision is made by the Governor for approval or refusal.”
For the purposes of this application, nothing turns on the terms of that letter.
In this application for judicial review, 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.
The defendant had asked the plaintiff to give it notice of any proceedings that the plaintiff might issue. The defendant has been supplied with the summons and supporting affidavit. In one sense, the application for leave to serve is, therefore, otiose. However, the defendant wishes to contend that leave to serve should not be granted on the ground that the summons does not raise any issues which are reasonably arguable.
One of the purposes of requiring an applicant for judicial review to obtain leave to serve the summons is to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived: Reg v Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 at 642 – 643 and at 653 where other purposes of the requirement for leave are noted. In O’Reilly v Mackman [1983] 2 AC 237 at 281, Lord Diplock, with whom the other Law Lords agreed, described the requirement for leave as an “important safeguard” and then described its purpose in these terms:
“The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision. In contrast, allegations made in a statement of claim or an indorsement of an originating summons are not on oath, so the requirement of a prior application for leave to be supported by full and candid affidavits verifying the facts relied on is an important safeguard against groundless or unmeritorious claims that a particular decision is a nullity. There was also power in the court on granting leave to impose terms as to costs or security.”
This application means that those public officers who are responsible for the administration of Division 2 of Part 4 of the Development Act will be uncertain whether to proceed with the processes prescribed in Division 2. I was satisfied, therefore, that it was appropriate to hear the defendant on the application for leave to serve.
The applicant for leave must satisfy the court on the affidavit material filed in support of the application that he has an arguable case in favour of granting the relief claimed: Reg v Inland Revenue Commissioners (supra) per Lord Diplock at 644 where His Lordship noted that the discretion that the court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued on the hearing of the application. As Cox J noted in Workers’ Rehabilitation and Compensation Corporation v Lieschke (unreported, 5 November 1992, Judgment No. S2489), it is not generally appropriate on such an application to pronounce finally on the issue that the applicant seeks to raise. It is enough if the judge perceives a case for argument. In that case, the applicant failed to satisfy Cox J that leave should be granted. In Dimitriopoulos v District Court of SA (1998) 199 LSJS 7 at 9, Bleby J described the requirement as a prima facie case. Thus, an applicant for judicial review must satisfy the court that he has a reasonably arguable case.
When the grounds of this application are stripped to essentials, the plaintiff contends that the declaration is invalid because the Minister may make such a declaration only if a jurisdictional fact exists, namely, that, when viewed objectively, the proposed development is of major environmental, social or economic importance. It is reasonably arguable that the question whether the proposed development is of major environmental, social or economic importance is to be determined objectively or whether it is determined by the Minister in the exercise of his opinion. However, the defendant contends that it is unnecessary to examine that issue because, on any view, the proposed development is of major environmental, social or economic importance.
The defendant submits that the issues which the plaintiff seeks to canvass do not have to be determined because it is not reasonably arguable that the proposed development is not of major environmental, social or economic importance.
Dr Manetta, who appeared for the defendant, did not expressly identify the particular manner in which the proposed development was of major importance. It was, however, implicit in his submissions that it was of major environmental importance and the argument proceeded on that footing.
I have already listed the essential features of the proposed development. Dr Manetta emphasised just how substantial this development is by pointing out that, if the proposed land fill site within the 500 metre buffer were square in shape, it would measure 932 metres by 932 metres, a little short of one kilometre by one kilometre. As he pointed out, that would occupy most of that part of the City of Adelaide which is contained in the four terraces. He contended that the development of the actual land fill site will, on any view, be the development of a very large area with significant environmental consequences. He asked the rhetorical question, if this is not a major development, what is?
Dr Manetta also relied on the fact that the conduct of a depot for the reception and disposal of waste is a prescribed activity of environmental significance: see s 36 of the Environment Protection Act 1993 and clause 3(3) of Schedule 1 to that Act.
The question which has to be determined on this application for leave to serve is whether it is reasonably arguable that the proposed development is not of major environmental importance. In this context, the adjective “major” qualifying as it does the noun “importance” means something unusually important or serious from an environmental, social or economic standpoint: see Macquarie Dictionary and Oxford English Dictionary. 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 ed). Thus, the question for determination on this application becomes whether it is reasonably arguable that the proposed development is not of more than ordinary environmental importance or, alternatively, that it will not have unusually serious consequences for the environment.
The fact that a depot for the receipt and disposal of waste is by virtue of s 36 of the Environment Protection Act a prescribed activity of environmental importance is relevant but, that fact does not of itself establish that the proposal is of major environmental importance. 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) 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.
On any view, this development is extremely large. It can fairly be described as huge. Furthermore, the land will be used as a rubbish disposal site for a long time. It must be acknowledged, therefore, that this is a major development. Indeed, Mr Hayes QC properly acknowledged that fact. However, size is not, of course, the only criterion by which to determine whether a development is of major environmental importance. As Mr Hayes QC pointed out, a development which is small in size could be of major importance. He gave, as an example, an application to develop a small nuclear power facility in, say, the Central Business District of Adelaide.
The word “importance” in s 46(1) requires regard to be had, among other things, to the consequences of the development. In other words, one of the concerns of s 46(1) is with the effects of the proposal be they environmental, social or economic. Of course, the development may be of importance because it answers a particular environmental, social or economic need. There may be other factors which will render a development of major environmental, social or economic importance. For the purposes of this case, it is sufficient to consider the consequences or effects for the environment of the proposed development.
As well as being substantial in nature, the intended use of this land has an obvious potential to affect the environment adversely. Not only is it a notorious fact that rubbish dumps may detrimentally affect the environment, but the potentially hazardous features of this proposal are listed in the development application. For present purposes, it is sufficient to note that it will emit methane, that it is necessary to prevent leaching into the ground water and determination of stormwater run-off, that it will require a gas management system and that it is necessary to control litter, noise, odour, birds and vermin, fire, dust, weeds and pests. This admitted major development is intended to operate for some 25 to 30 years. The environmental issues listed above will continue to exist over the whole of the life of this rubbish disposal site. They are important issues. The question is whether these factors, when considered together, mean that it is reasonably arguable that the proposal is not of more than ordinary environmental importance or consequence.
There are other factors which must be considered. It is clear that if the development had been located in a residential area in metropolitan Adelaide, it would manifestly be of major environmental importance. However, it is intended to locate the development in an area where few individuals live or work. It is to be located in land currently used for agricultural purposes. The substantial size of the proposed development is proportionately less in this area than if it were located in the metropolitan area. It is not far distant from land already used for rubbish disposal on a substantial land fill site. There is no evidence as to the comparability of the size of the proposed development with the existing rubbish disposal operation or whether other like developments which have been approved in the area. Although the land is in a Primary Industry Zone prescribed by the Development Plan for the Wakefield Regional Council, rubbish disposal is not a non-complying development in that Zone unless it fails to comply with prescribed criteria. According to the plaintiffs’ development application (and there is no contrary evidence), this proposal complies with the prescribed criteria. In other words, a planning authority is at liberty to decide whether to grant or refuse development approval.

The issues might be summarised this way. Because of its size, its intended life of 25 to 30 years, and the environmental issues associated with the proposed development, it is clearly an important development. That conclusion is reinforced by the fact that it is prescribed by s 36 of the Environment Protection Act to be of environmental importance. Leave to serve can only be refused if it is not reasonably arguable that the proposal is not of more than ordinary environmental importance.
While the proposal might clearly be of major environmental importance if located in the metropolitan area, there are questions whether even such a large rubbish dump as this which is intended to continue to operate for 25 to 30 years is of major environmental importance when located on this site given that it is open to a planning authority to approve it and it meets the specified criteria. In other words, I do not think it can be fairly said that it is not reasonably arguable that the proposal is not of more than ordinary environmental importance. The issues are not so clear that leave to serve should be refused.
Furthermore, I am concerned that the defendant is also asking this Court to determine one of the ultimate issues for decision on this application for judicial review. It is not appropriate for it to do so on an application for leave to serve.
For all of these reasons, there will be an order granting leave to serve the application.

[2002] SASC 443

24 December 2002